Archive/File: orgs/american/liberty.lobby/legal/ll-v-anderson-defamation
Last-Modified: 1996/10/26

               LIBERTY LOBBY, INC. v. ANDERSON
               Cite as 562 F.Supp. 201 (1983)

                   LIBERTY LOBBY, INC., et
                      al., Plaintiffs,
                             v.
             Jack ANDERSON, et al., Defendants.
                    Civ. A. No. 81-2240.
                              
                United States District Court,
                    District of Columbia.
                       March 30, 1983.
               On Motion for Summary Judgment
                       March 31, 1983.

Libel action was filed concerning articles in which
plaintiffs were described as neo-Nazi, facist, anti-Semitic,
and racist. Defendants filed motion for summary judgment and
plaintiffs moved to strike paragraphs of defendant's
affidavit and entire appendices in support of summary
judgment motion. The District Court, Barrington D. Parker,
J., held that: (1) paragraphs of defendant's affidavit would
not be stricken, and (2) since reporter responsible for
writing article thoroughly investigated and researched
article and relied upon numerous sources, existence of
actual malice could not be established, and thus plaintiffs
could not recover in libel action.

     Ordered accordingly.
     See also, D.C., 96 F.R.D. 10.

1. Libel and Slander (WestKey) 104(1)

While an affiant's opinion or belief is normally
inadmissible, in a libel case statements concerning a
defendant's state of mind and belief are admissible because
they go to the core of the inquiry; defendant's state of
mind is central to the question of whether he published with
actual malice.

2. Federal Civil Procedure  (WestKey) 2537

Paragraph of defendant's affidavit submitted in support of
summary judgment / w
 motion in libel action stating in part that he believed
that the articles written were truthful and accurate and
that the sources were reliable and truthful would not be
stricken, since his state of mind was central to question
whether he published with actual malice. Fed.Rules
Civ.Proc.Rule 56(e), 28 U.S.C.A.

3. Federal Civil Procedure (WestKey) 2537

Paragraph of defendant's affidavit submitted in support of
summary judgment motion in libel action reciting that defend
ant had prepared an appendix to his affidavit detailing
sources relied upon in making statements that plaintiffs had
now challenged would not be stricken, despite plain tiff's
assertion that these were defendant's conclusions and
opinions, not based on personal knowledge, and were
therefore inadmissible, in that questioned statements were
indeed based upon defendant's person al knowledge, and he
specifically referred to the sources upon which he relied in
pre paring the publications.

4. Federal Civil Procedure (WestKey) 2537

Paragraph of defendant's affidavit submitted in support of
summary judgment motion in libel action which had as its
source book to which introduction was writ ten by plaintiff
and which was published by another plaintiff would not be
stricken, de spite assertion that paragraph was not based on
defendant's personal knowledge, in that fact that plaintiffs
were involved in book gave added support to reasonableness
of defendant's belief in the accuracy and reliability of his
sources. Fed.Rules Civ.Proc.Rule 56(e), 28 U.S.C.A.

5. Federal Civil Procedure  (WestKey) 2537

Appendices submitted by defendant in support of summary
judgment motion in libel action containing quotations from
various sources utilized by defendant in his articles would
not be stricken, despite contention that they constituted
inadmissible hearsay, were not exhibited or quoted in full,
but rather were excerpts taken out of context, in that
excerpts were not offered to prove the truth of the
allegations they contained, but were submitted without
regard to their truth or falsity, only to show defendant's
state of mind and that in relying upon them he lacked
malice, and affidavit established foundation for statements
contained in appendix and identified these materials as his
sources for allegedly defamatory statements.

6. Federal Civil Procedure (WestKey) 2554

In a motion for summary judgment, court is entitled to
consider exhibits and other papers that have been identified
by affidavit or otherwise made admissible in evidence.

7. Federal Civil Procedure  (WestKey) 2537

Affidavit of editor of two John Birch Society publications,
who was quoted by defendant in articles as being of the
opinion that plaintiff was anti-Semitic, submitted in
support of summary judgment motion in libel action would not
be stricken, despite contention that it was an inadmissible
opinion and that it contradicted editor's deposition, where
he denied ever making the quoted statements, in that
defendant relied upon editor's opinions in writing articles
so that they could shed light on defendant's state of mind
and on the existence of malice.

               On Motion for Summary Judgment

8. Libel and Slander (WestKey)123(8)

Issue whether plaintiffs are public figures presents
question of law to be decided by court in libel action.

9. Libel and Slander (WestKey) 8(1)

Where both plaintiffs had attempted to effect resolution of
public disputes having widespread ramifications, to
effectuate those purposes, one plaintiff published in
newspaper, and broadcasted its radio commentary and
television news show and expressed purposes and admitted
activities of one plaintiff, political lobbying and
dissemination of information of highly controversial
subjects, rendered its affairs a matter of public interest,
plaintiffs were limited purpose public figures for purposes
of libel action with burden to prove actual malice by clear
and convincing proof.

10. Libel and Slander (WestKey) 51(5)

In proving actual malice, a public figure must show that the
allegedly libelous statement was made with knowledge that it
was false or with reckless disregard of whether it was false
or not.

11. Libel and Slander (WestKey) 51(5)

Because malice for purposes of libel action requires that
the defendant in fact entertained serious doubts, failure to
check the reliability of a source is not sufficient to
indicate the presence of malice, unless there was an obvious
reason to doubt the source's veracity.

12. Libel and Slander (WestKey) 51(5)

If lack of investigation does not constitute malice, it
follows _a fortiori_ that a plaintiff in libel action cannot
succeed in proving malice when the defendant has conducted a
thorough investigation, and uncovered a host of articles
published in a variety of widely circulated newspapers and
periodicals; even if all the statements contained in those
sources proved false or one-sided, a reporter relying upon
them in writing a story would not have in fact entertained
serious doubts as to the truth of his publication.

13. Libel and Slander (WestKey) 51(5)

Because reporter thoroughly investigated and researched
articles in which plaintiffs were described as neo-Nazi,
facist, anti-Semitic, and racist, plaintiffs could not prove
existence of malice, and thus they could not recover in
libel action.

14. Libel and Slander (WestKey) 123(8)

Fact that some of the assertions in defendant's articles in
which plaintiffs were described as neo-Nazi, facist, anti-
Semitic, and racist may have been based on one-sided sources
or that isolated statements may prove false, did not create
a factual issue as to malice in libel action, especially in
light of defendant's finely etched effort presenting in
careful detail the journalistic research underlying each
statement.

15. Federal Civil Procedure (WestKey)2547
      Limitation of Actions (WestKey) 104(1)

Since plaintiffs failed to make any argument contrary to
defendant's assertion that plaintiffs' claim of conversion
was time barred and that plaintiffs could not rely on the
fraudulent concealment doctrine to toll the statute of
limitations, defendant's motion for summary judgment on
conversion count would be treated as conceded; furthermore,
plaintiff knew or should have known of theft of file since
1969, when magazine article mentioned the theft, so that
three-year limitations period had run. U.S.Dist.Ct.Rules
D.D.C.Rule 1-9(d); D.C. Code 1981,  12 301(2).

Fleming Lee, Washington, D.C., for plaintiffs.
David J. Branson, Leonard Appel, Washington, D.C., for
defendants.

                      MEMORANDUM ORDER
                              
BARRINGTON D. PARKER, District Judge.

In support of the motion for summary judgment the defendants
have filed and rely primarily on an affidavit of Charles
Bermant. They also rely on an affidavit of Winfield Scott
Stanley. Bermant authored the articles which are the subject
of the libel action.

Liberty Lobby and Willis Carto have moved to strike
paragraphs 20, 21, and 22 of Bermant's affidavit and the
entire appendices, contending the requirements of Rule 56(e)
Fed.R.Civ.P. have not been met. They challenge the entire
Stanley affidavit and move to strike it. For the reasons set
out below the motion is denied.

                    The Bermant Affidavit

[1, 2] The objection to paragraph 20 is that Bermant states
in part that he believes that the articles written were
truthful and accurate and that the sources were reliable and
truthful. Plaintiffs challenge the affidavit asserting that
it does not comply with the requirements of Rule 56(e),
Fed.R.Civ.P., and that it is inadmissible, citing _Jameson
v. Jameson_, 176 F.2d 58 (D.C.Cir. 1949).* While an
affiant's opinion or belief is normally inadmissible, in a
libel case statements concerning a defendant's state of mind
and belief are admissible because they go to the core of the
inquiry. A defendant's state of mind is central to the
question of whether he published with actual malice.
_Herbert v. Lando_, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d
115 (1979). The existence of a particular belief or opinion
will often determine whether a defendant is liable. Thus, in
_Herbert v. Lando_, a libel action, the plaintiff was
permitted to inquire into the state of mind and editorial
processes of the defendants. "[C]onclusions as to the
importance and veracity of sources and information presented
in the article" were properly included in the record when
the existence of malice was controverted. _Id_ at 160 n. 6,
99 S.Ct. at 1641 n. 6. Bermant's opinions and beliefs as to
the veracity of his material were not improper and should
not be stricken.

*The defendants suggest and the Court agrees that _Jameson_
is inapposite.

[3] Paragraph 21 recites that Bermant had prepared an
appendix to his affidavit detailing the sources relied upon
when making the statements that plaintiffs have now
challenged. Bermant stated his belief that the sources,
including members of Congress, several local Washington
newspapers, and the Los Angeles Times, were reliable. The
plaintiffs assert that these are Bermant's conclusions and
opinions, not based on personal knowledge, and are therefore
inadmissible. Plaintiffs' challenge is misplaced. The
questioned statements were indeed based upon Bermant's
personal knowledge, and he specifically refers to the
sources upon which he relied in preparing the publications.
He also stated his belief that those sources were dependable
and reliable. The type of challenge and objection raised by
the plaintiffs in this instance was fully discussed and
rejected in _Herbert v. Lando_, 441 U.S. at 165 166 n. 15,
99 S.Ct. at 1643 n. 15.

[4] For the same reasons plaintiffs' motion to strike
paragraph 22 must also be denied. Ironically, the
objectionable source in this instance is Imperium, a book
authored by F.P. Yockey, the introduction to which was
written by the plaintiff Willis Carto and published by
Liberty Lobby. This, of course, gives added support to the
reasonableness of Bermant's belief in the accuracy and
reliability of his sources.

The appendices contain quotations from various sources
utilized by Bermant in his articles. They are challenged
because they constitute inadmissible hearsay, are not
exhibited or quoted in full, but rather are "excerpts taken
entirely out of context," and are not authenticated or
certified copies.

[5] The argument that the appendices contain inadmissible
hearsay under evidence Rule 802 is not convincing. For an
out-of-court statement to be hearsay, it must be offered to
prove the truth of the matter asserted. But here, the
excerpts are not offered to prove the truth of the
allegations they contain. Rather, they are submitted without
regard to their truth or falsity, only to show Bermant's
state of mind and that in relying upon them he lacked
malice.

[6] Nor is the argument that defendants have failed to
establish a proper foundation and that the appendix
materials are not authenticated persuasive. Bermant's
affidavit, particularly [para] 21, establishes the
foundation for the statements contained in the appendix and
identifies these materials as his source for the allegedly
defamatory statements. In a motion for summary judgment, the
court is entitled to consider exhibits and other papers that
have been identified by affidavit or otherwise made
admissible in evidence. _First National Bank Co. v.
Insurance Co. of North America_, 606 F.2d 760, 766 (7th
Cir.); _Schy v. Susquehanna Corp._, 419 F.2d 1112, 1116 (7th
Cir.), _cert. denied_, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d
55 (1970). Further, many of the sources, such as newspapers
and periodicals, are self-authenticating under evidence Rule
902(6). Others, such as the excerpts from the declarations
made by William Cox, are supported by deposition. While in
some situations courts have required that the documents be
submitted in full, _see, e.g, Walling v. Fairmont Creamery
Co._, 139 F.2d 318 (8th Cir 1943), the defendants will not
be required submit all sources in their entirety -- many of
which are obviously of great length. Moreover, all sources
were made available to plaintiffs during the course of
discovery, and they have had the opportunity to correct any
misleading impressions that might have been created by
statements incorrectly quoted or taken out of context.

                    The Stanley Affidavit

Winfield Scott Stanley, Jr., the editor of two John Birch
Society publications, _The Review of News_ and _American
Opinion_, was quoted by Bermant in the articles as being of
the opinion that Carto is anti-Semitic. When Liberty Lobby
and Carto, in their opposition, challenged the validity of
that quotation, defendants submitted with their reply brief
the Stanley affidavit. Stanley stated that indeed it was his
view that Carto was anti-Semitic and, in addition, racist.
Plaintiffs moved to strike the Stanley affidavit, arguing
that it was an inadmissible opinion, and, further, that it
contradicted Stanley's deposition, where Stanley denied ever
making the quoted statements.

[7] Bermant relied upon Stanley's opinions in writing the
articles. Consequently, Stanley's opinions can shed light on
Bermant's state of mind and on the existence of malice.
Anything which can contribute to an understanding of
Bermant's state of mind is admissible under _Herbert v.
Lando_. Especially here, where Liberty Lobby and Carto
interjected the issue of Stanley's opinions in their
opposition to the motion for summary judgment, they will not
be permitted to bar the introduction of the Stanley
affidavit by way of rebuttal. Any contradiction between
Stanley's affidavit and his deposition goes only to the
weight to be accorded to it, not its admissibility. See 10
C. Wright & A. Miller, Federal Practice and Procedure: Civil
 2738 at 686 (1973).

                    ON MOTION FOR SUMMARY
                          JUDGMENT
                              
In this action the defendants, who are engaged in the
publishing business, were responsible for publishing
statements that the plaintiffs were neo-Nazi, fascist, anti-
Semitic, and racist. The plaintiffs' complaint alleges that
the statements were false and derogatory, and they seek
general and punitive damages. The defendants have moved for
summary judgment on the grounds that the plaintiffs are
public figures, that there is no evidence of actual malice,
and that the plaintiffs are libel-proof.

The parties' memoranda of law, the several affidavits, and
the entire record have been considered. The Court determines
as a matter of law that the defendants are entitled to
summary judgment and that the libel complaint should be
dismissed. The reasons for this conclusion are set out in
the discussion which follows.

A second count of the complaint charges that in 1966 the
defendant Jack Anderson took possession and control of and
converted to his use certain property_files_of the
plaintiffs. This count is also subject to a motion for
summary judgment. The motion is likewise granted.<1>

                         BACKGROUND

While it is claimed that there are numerous disputed facts
in this libel suit, many are of limited, if any,
consequence. The material underlying facts necessary for
disposition of this motion for summary judgment are
uncontested and set out below.

Liberty Lobby is a not-for-profit corporation headquartered
in the District of Columbia Plaintiff Willis A. Carto is its
founder, treasurer and its chief lobbyist. Liberty Lobby "is
the first citizens' lobby in the United States," with an
avowed purpose to advocate and promote "patriotism,
nationalism, lawfulness, protection of the national
interests of the United States and the economic interests of
its citizens, and strict adherence to the United States
Constitution and the form of government it establishes." <2>
To disseminate its views, Liberty Lobby publishes a weekly
national newspaper, The Spotlight, with more than 335,000
paid subscribers and an even greater number of readers. A
daily radio commentary, "This is Liberty Lobby," is carried
over 460 stations, and a weekly half-hour television news
show is broadcast on 30 stations.

The two articles giving rise to this libel suit were
published in the October 1981 issue of The Investigator, a
magazine published by defendant Investigator Publishing
Company. Defendant Jack Anderson was publisher of the
magazine; defendant Bill E. Adkins was the president and
chief executive officer of the Investigator Publishing
Company. The Investigator has since ceased publication.

The two articles, entitled "The Private World of Willis
Carto" and "Yockey: Profile of an American Hitler," were
authored by Charles Bermant, an employee of the defendants,
and edited by Jack Anderson. The articles were introduced by
a section signed by "The Editors": "Did Mein Kampf Spawn
Yockey's Imperium, a Book Revived by Carto's Liberty Lobby?"
The publications recount the history of Carto and Liberty
Lobby, and convey statements expressed by many organizations
and individuals describing Carto and Liberty Lobby's views.
Without doubt, the plaintiffs are referred to as neo-Nazi,
fascist, anti-Semitic and racist. The portrayals form the
basis for plaintiffs' libel complaint.

To support their motion for summary judgment, the defendants
submitted the affidavit of Charles Bermant.<3> His affidavit
details the investigative means he utilized in his research
before writing the articles.  He rebuts, point by point,
each of the plaintiffs' allegations of libel, and reveals
the sources he relied upon in composing each of the
allegedly libelous statements. In preparing for the
articles, Bermant secured more than 1000 pages of documents
from the federal government under the Freedom of Information
Act, 5 U.S.C.  552 et seq.  He collected newspaper articles
and press clippings published by _The Washington Post_, _The
Washington Star_, _The Los Angeles Times_, William Buckley's
_National Review_, _True Magazine_, and the Anti-Defamation
League of B'nai B'rith. Statements by congressmen reported
in the Congressional Record were also relied upon. Several
examples from the sources uncovered by Bermant are
illustrative:

     An outspoken anti-Semite who has professed an abiding
     admiration for Hitler and Nazi Germany and has been the
     moving force behind a network of Jew-hating
     organizations and publications over the years is also
     the unpublicized force behind "This is Liberty Lobby,"
     an extremist
      radio program carried five times a week by some 126
     stations around the country.
     
     His name is Willis A. Carto
     
     Years ago, Carto wrote to a fellow rightist, Norris
     Holt: "Hitler's defeat was the defeat of Europe. And
     America.... The blame must be laid at the door of the
     international Jews "

120 Cong.Rec. E4841 (daily ed, July 18, 1974) (remarks of
Rep. Eilberg).<4>

     "Carto wants a nationalist socialist dictatorship" in
     the United States, a former Liberty Lobby executive
     told a reporter.

Chandler, " 'Debunkers' of Holocaust Linked to Right-Wing
Extremists," _Los Angeles Times_, May 3,1981.<5>

     "The revolutionists have seen to it," Carto wrote the
     racist author Earnest Sevier Cox in 1955, "that only a
     few Americans are concerned about the inevitable
     niggerfication of America." But Carto had a plan, for a
     "flank attack." He established, and promoted secretly
     the Joint Council for Repatriation -- a send-'em back-
     to-Africa movement with an added benefit: ". . . such a
     movement would be the strongest blow against the power
     of organized Jewry that can be imagined."

Simonds, "The Strange Story of Willis Carto," _National
Review_, September 10, 1971, at 979.<6>

Bermant also relied upon information from William Cox, a
California attorney, who had represented a client in
litigation against the Institute for Historical Review, an
organization established by Carto. Cox, brought suit in
connection with an offer of $50,000 made by the Institute to
anyone who could prove whether the death of six million Jews
in the Holocaust ever took place.

Bermant even approached Liberty Lobby and interviewed Robert
M. Bartell, Chairman of Liberty Lobby's Board of Policy. He
tried repeatedly to obtain an interview with Carto. Such
efforts were not successful.

Another source relied upon was the book _Imperum_, written
by Francis Parker Yockey and currently advertised and sold
by Liberty Lobby. In 1960, Yockey was imprisoned on charges
of passport fraud and assaulting a police officer. While in
jail he committed suicide, but not before Carto succeeded in
meeting with him. Impressed by that jailhouse encounter,
Carto later wrote in a 35 page introduction to Yockey's
Imperium: "I knew I was in the presence of a great force,
and could feel History standing beside me."<7> As
understated in the complaint, Carto "has never made secret
his admiration for Yockey." <8> That admiration was for a
man who, in his book _Imperium_, wrote:

     The Jew is a product of another Culture .... This basic
     fact kept the Jew entirely separate from the West
     spiritually and racially -- the West rejected his world-
     feeling, he rejected its. Mutual hatred and mutual
     persecution only strengthened the Jewish race,
     sharpened its cunning and increased its resentment.<9>
     Thus, the Negro in general rejects the white race, and
     the white race rejects the Negro. The culture barrier
     is also present, for the Negro is below our culture
     even though he has lived within its area for centuries.
     <10>

Based on these and a number of other sources more fully
quoted in Bermant's affidavit, the defendants have moved for
summary judgment. They claim that Liberty Lobby and Carto
are public figures who must prove, by clear and convincing
evidence, actual malice on the part of the defendants. They
further assert that summary judgment is appropriate because
malice is lacking as a matter of law, since Bermant
reasonably relied on the fruits of his exhaustive
investigation and a host of prior reports regarding Liberty
Lobby and Carto <11>

The plaintiffs disagree, arguing that an issue of fact
remains concerning the absence of malice, which of necessity
precludes summary judgment. They point to numerous
inaccuracies in Bermant's sources, and claim that many of
those relied upon by him were patently unreliable. As an
example, they point to a magazine article in _True_ which
Bermant utilized. That article was also the subject of a
libel suit, It which was settled when _True_ agreed to pay a
certain sum of money and to publish a subsequent article in
_True_ written to Liberty Lobby's specifications. Despite
that settlement, Bermant relied upon the initial article in
_True_. Liberty Lobby and Carto
also assert that the defendants failed to verify their
sources or take appropriate measures to ascertain the truth
of the material in the articles, and that some sources, such
as William Cox, were obviously biased. Further, they claim
that the defendants avoided publication of non-derogatory
statements from other sources when such statements
contradicted the negative statements contained in the
articles. All of this, in plaintiffs' view, creates issues
of fact with regard to the existence of malice, and merits a
denial of defendants' motion for summary judgment.

The Bermant affidavit serves as a supporting arch to the
defendants' motion for summary judgment. The plaintiffs
moved to strike certain parts of the affidavit and all
appendices, claiming that the portions objected to failed to
satisfy and measure up to the requirements of Rule 56(e),
Fed.R.Civ.P. In a Memorandum Order of March 30,1982, the
motion was found to be without merit and was denied.

                          ANALYSIS
                              
The Libel Claim
                      1. Public Figures
                              
[8] Defendants argue that since plaintiffs are "limited-
purpose public figures," they must therefore prove actual
malice by "clear and convincing proof" in order to prevail.
The issue of whether the plaintiffs are public figures
presents a question of law to be decided by the Court.
_Waldbaum v. Fairchild Publications, Inc._, 627 F.2d 1287,
1293 n. 12 (D.C.Cir.), _cert. denied_, 449 U.S. 898, 101
S.Ct. 266, 66 L.Ed.2d 128 (1980).

In _New York Times v. Sullivan_, 376 U.S. 254, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964), the Supreme Court held that the First
and Fourteenth Amendments require a public official to prove
the existence of actual malice to prevail in a libel suit. A
lesser standard would negate the "profound national
commitment to the principle that debate on public issues
should be uninhibited, robust, and wide open." Id at 270, 84
S.Ct. at 721. In _Curtis Publishing Co. v. Butts_, 388 U.S.
130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), that principle
was extended beyond public officials to embrace public
figures, defined in either of two ways:

     [The public figure] designation may rest on either of
     two alternative bases. In some instances an individual
     may achieve such pervasive fame or notoriety that he
     becomes a public figure for all purposes and in all
     contexts. More commonly, an individual voluntarily
     injects himself or is drawn into a particular public
     controversy and thereby becomes a public figure for a
     limited range of issues. In either case such persons
     assume special prominence in the resolution of public
     questions.

_Gertz v. Robert Welch, Inc._, 418 U.S. 323, 351, 94 S.Ct.
2997, 3013, 41 L.Ed.2d 789 (1974). The second category of
public figure, the individual who "voluntarily injects
himself . . . into a particular public controversy," is
often referred to as a "public figure for limited purposes."


     [A] person has become a public figure for limited
     purposes if he is attempting to have, or realistically
     can be expected to have, a major impact on the
     resolution of a specific public dispute that has
     foreseeable and substantial ramifications for persons
     beyond its immediate participants.

Waldbaum, 627 F.2d at 1292.

[9] Defendants claim that the plaintiffs constitute "limited-
purpose public figures," and therefore bear the heavy burden
of proving actual malice. Plaintiffs, in a half page
argument devoid of citations, disagree. The Court agrees
with the defendants, and rules that, because Liberty Lobby
and C~ to are "limited-purpose public figures," the burden
is theirs to prove actual malice by "clear and convincing
proof." Gertz, 418 U.S. at 342, 94 S.Ct. at 3008. Both
plaintiffs have attempted to affect the resolution of public
disputes having widespread ramifications. That conclusion is
evident  from their confessed purpose of promoting
"patriotism, nationalism, lawfulness, protection of the
national interests . . . and strict adherence to the United
States Constitution.... " To effectuate those purposes,
Liberty Lobby publishes a newspaper, and broadcasts its
radio commentary and television news show. As its very name
implies Liberty Lobby is concerned with influencing matters
of public interest. "The express purposes and the admitted
activities of Liberty Lobby -- political lobbying and
dissemination of information on highly controversial
subjects -- render its affairs a matter of public interest."
_Liberty Lobby Inc. v. Pearson_, 390 F.2d 489, 491 (D.C.Cir
1968) (Burger, J.). As lobbyists, both Carto and Liberty
Lobby are "limited-purpose public figures." _See Pauling v.
Globe-Democrat Publishing Co._, 362 F.2d 188, 196 (8th
Cir.1966) (Blackmun, J.), _cert. denied_, 388 U.S. 909, 87
S.Ct. 2097, 18 L.Ed.2d 1347(1967). The fact that Liberty
Lobby is a corporation rather than a person does not warrant
a different conclusion. See, e.g _Gospel Spreading Church v.
Johnson Publishing Co._, 454 F.2d 1050, 1051 (D.C.Cir 1971).

                      2. Actual Malice

[10] In proving actual malice, a public figure must show
that the allegedly libelous statement was made "with
knowledge that it was false or with reckless disregard of
whether it was false or not." _New York Times v. Sullivan_,
376 U.S. at 279-80, 84 S.Ct. at 725-26.

     [R]eckless conduct is not measured by whether a
     reasonably prudent man would have published, or would
     have investigated before publishing There must be
     sufficient evidence to permit the conclusion that the
     defendant in fact entertained serious doubts as to the
     truth of his publication. Publishing with such doubts
     shows reckless disregard for truth or falsity and
     demonstrates actual malice.

_St. Amant v. Thompson_, 390 U.S. 727, 781, 88 S.Ct. 1323,
1325, 20 L.Ed.2d 262 (1968) (emphasis added).

[11] Because malice requires "that the defendant in fact
entertained serious doubts," failure to check the
reliability of a source is not sufficient to indicate the
presence of malice, unless there was an obvious reason to
doubt the source's veracity. See id at 732, 88 S.Ct. at
1326. In _New York Times v. Sullivan_, no malice was found,
despite the fact that there were news stories in the files
of the newspaper which, if checked, would have revealed the
falsity of the allegedly libelous advertisement. The failure
to discover those news stories constituted, at most,
negligence, not malice. 376 U.S. at 287-88, 84 S.Ct. at 729-
30. "[M]ere proof of failure to investigate without more,
cannot establish reckless disregard for the truth." Gertz,
418 U.S. at 382, 94 S.Ct. at 3003. More specifically,

     [while] verification of the facts remains an important
     reporting standard, a reporter, without "a high degree
     of awareness of their probable falsity," may rely on
     statements made by a single source even though they
     reflect only one side of the story without fear of
     libel prosecution by a public official.

_New York Times v. Connor_, 365 F.2d 567, 576 (5th Cir.
1966).

[12] If lack of investigation does not constitute malice, it
follows _a fortiori_ that a plaintiff cannot succeed in
proving malice when the defendant has conducted a thorough
investigation, and uncovered a host of articles published in
a variety of widely circulated newspapers and periodicals.
Even if all the statements contained in those sources prove
false or one-sided, a reporter relying upon them in writing
a story would not have "in fact entertained serious doubts
as to the truth of his publication." "The subjective
awareness of probable falsity required by _St. Amants v.
Thompson_ [sic] . . . cannot be found where, as here, the
publisher's allegations are supported by a multitude of
previous reports upon which the publisher reasonably
relied." _Rosanova v. Playboy Enterprises, Inc._, 580 F.2d
859, 862 (5th Cir.1978). For that reason, the court in
Rosanova affirmed the district court's granting of summary
judgment.

[13,14] Because Bermant thoroughly investigated and
researched the articles, the plaintiffs cannot prove the
existence of malice, and therefore defendants' motion for
summary judgment should be granted. Bermant's reliance upon
numerous sources -- _The Washington Post_, _The Washington
Star_, _The Los Angeles Times_, _National Review_, _True
Magazine_, the _Congressional Record_, _Imperium_, press
releases of the Anti-Defamation League, as well as the
several individuals interviewed -- negates a finding of
malice. The Court, in examining the affidavit of Bermant,
finds that as a matter of law the information contained
within these sources substantiates each allegation contained
in the articles. That some of the assertions in the
defendants' articles may be based on one-sided sources or
that isolated statements may prove false, does not create a
factual issue as to malice, especially in light of
defendants' finely etched effort presenting in careful
detail the journalistic research underlying each statement.

This conclusion is reinforced by the reality that plaintiffs
manage to attack only a small proportion of the sources that
defendants relied upon. Thus, even granting the patent
unreliability of the article in _True Magazine_ (because of
the earlier libel suit), or of William Cox (because of his
position as attorney representing a client who sued the
Institute for Historical Research [sic]), or of any of the
other contested sources, there still remains sufficient
support for the assertions made in defendants' articles to
negate a finding of malice. It was not for naught that the
District of Columbia Circuit spoke of Liberty Lobby's
reprehensible "overtones of anti-Semitism ad [sic] racism."
_Liberty Lobby, Inc. v. Pearson_, 390 F.2d at 491 n. 7.<12>

In _Wasserman v. Time, Inc._, 424 F.2d 920, 922 (D.C.Cir.),
cert. denied, 398 U.S. 940, 90 S.Ct. 1844, 26 L.Ed.2d 273
(1970), Judge Wright of our Circuit Court noted in a
concurring opinion:

     _New York Times Co. v. Sullivan_ makes actual malice a
     constitutional issue to be decided in the first
     instance by the trial judge applying the Times test of
     actual knowledge or reckless disregard for the
     truth.... Unless the court finds, on the basis of
     pretrial affidavits, depositions or other documentary
     evidence, that the plaintiff can prove actual malice in
     the Times sense, it should grant summary judgment for
     the defendant. (citations omitted)

Because the plaintiffs are unable to prove actual malice,
the defendants are entitled to summary judgment on the libel
claim.

The Conversion Claim

[15] The defendant Jack Anderson asserts that plaintiffs'
claim of conversion is time barred and that the plaintiffs
cannot rely on the fraudulent concealment doctrine to toll
the statute of limitations. In their brief in opposition,
the plaintiffs fail to make any argument to the contrary.
Under Local Rule 1-9(d), the Court may thus treat Anderson's
motion for summary judgment on count two as conceded.

The Anderson motion, however, has merit. The alleged
conversion took place in1966. D. e  12401(2) provides for a
three-year statute of limitations. Plaintiff knew or should
have known of the theft of the files since 1969, when the
first article in _True Magazine_ mentioned the theft. Carto
was familiar with the contents of the article, as revealed
by his filing of the subsequent libel suit against the
article's authors and publisher in 1970.<13>

Based on the foregoing, the defendants' motion for summary
judgment is granted as to the entire complaint. An
appropriate order follows.
                              
                   ORDER OF DISMISSAL AND
                          JUDGMENT
                              
On this date, the Court has entered a Memorandum Opinion,
and on the basis thereof it is ORDERED

The defendants' motion for summary  judgment is granted and
judgment is entered for the defendants.

The complaint is dismissed with prejudice.

Footnotes


1. The motion is discussed, _infra_, p. 210.

2. Complaint at [para]12.

3. Affidavit of Charles Bermant, filed August 1982

4. _Id_, appendix at 31.

5. _Id._, appendix at 4, 32.

6. _Id._, appendix at 14.

7. _Id._ appendix at 10, quoting from Carto's introduction
to _Imperium_.

8. Complaint at [para] 14(IV).

9. Affidavit of Bermant at [para] 22, quoting _Imperium_ at
pp. 311-12.

10. Affidavit of Bermant at r 22, quoting Imperium at 313.

11. In addition, defendants maintain that Liberty Lobby and
Carto are "libel-proof," since the challenged portions of
the articles could not harm the reputations of Liberty Lobby
and Carto in any way beyond the harm already caused by the
remaining, unchallenged portions of the articles. See note
12, _infra_.

12. In view of this Opinion, the Court need not pass on
defendants' contention that Carto and Liberty Lobby are
"libel-proof." See, e.g., _Simmons Ford, Inc. v. Consumers
Union of the United States, Inc._, 516 F.Supp. 742 (S.D.N.Y
1981). Libel-proof plaintiffs are those whose reputation is
so besmirched, either from uncontested portions of the
allegedly libelous publication or from other events
occurring prior to the challenged publication, that as a
matter of law such plaintiffs would be unable to recover for
further damage to reputation.

A second issue that need not be decided by this Court has to
do with the proper choice of law. Both sides to this suit,
in repeatedly citing _Nader v. de Toledano_, 408 A.2d 31
(D.C 1979), _cert. denied_, 444 U.S. 1078, 100 S.Ct 1028, 62
L.Ed.2d 761 (1980), seem to assume
that the law of the District of Columbia applies. However,
at least with regard to Carto, a resident of California, it
is possible that California law applies. Under Restatement
2d, Conflict of Laws  150(2), in multistate defamation
cases the applicable law is usually that of the state where
plaintiff was domiciled at time of publication, if
publication occurred within that state. If California law
were applicable, it might severely burden Carto's ability to
recover anything more than nominal damages. Under California
Civil Code  48a, a plaintiff alleging libel in a newspaper
may recover only special damages -- i.e., damages resulting
from loss in business or occupation, but not damages arising
from loss of reputation, nor punitive damages -- unless
plaintiff seeks, in writing, a retraction within 20 days of
publication.

13. See Affidavit of Willis A. Carto in Support of
Plaintiffs' Opposition to Motion for Summary Judgment at
[para] 7, filed Oct. 12. 1982.

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