Archive/File: orgs/american/liberty.lobby/legal/ll-v-rees-appeal
Last-Modified: 1996/10/16
See also orgs/american/liberty.lobby/legal/ll-v-rees-defamation

                 LIBERTY LOBBY, INC. v. REES
            Cite as 852 F.2d 595 (D.C. Cir. 1988)
                              
               LIBERTY LOBBY, INC., Appellant,
                              v.
                      John REES, et al.
                         No. 86-7091.
               United States Court of Appeals,
                District of Columbia Circuit.
                    Argued March 8, 1988.
                    Decided July 29, 1988.

Corporation brought defamation action against magazine and
its staff based on articles asserting relationship between
corporation and Lyndon LaRouche, and accus ing
organization's founder of anti-Semitism and racisim. The
United States District Court for the District of Columbia,
George H. Revercomb, J., 667 F.Supp. 1, granted summary
judgment for defendants and ap peal was taken. The Court of
Appeals, Re, Chief Judge, sitting by designation, held that
corporation did not demonstrate existence of sufficient
facts to permit reasonable jury finding, rooted in clear and
con vincing proof, that statements were made with knowledge
that they were false, or with reckless disregard of whether
they were true.

Affirmed.

1. Federal Civil Procedure

Appellant in defamation action was not entitled to
sanctions, costs, and attorney  fees upon denial of
appellee's application for summary affirmance in that
application was not frivolous and complied with rules
governing proceedings in appellate court. F.R.A.P.Rule 38,
28 U.S.C.A.; U.S.Ct. of D.C.Cir.Rule 23, 28 U.S.C.A.

2. Libel and Slander First Amendment requires that public
figure bear burden of proving falsity of defamatory
statement, as well as actual malice. U.S.C.A. Const.Amend.
1.

3. Federal Civil Procedure

In order to defeat summary judgmentmotion in defamation
action, public figure was required to show that evidence
could support reasonable jury finding, by clear and
convincing evidence, that defendants acted with actual
malice in publishing articles in question.

4. United States Magistrates

Magistrate's denial of additional dis covery on ground that
defamation plaintiff had sufficient other evidence on issue
of malice, did not preclude summary judg ment for defendants
on ground plaintiff had failed to establish jury issue of
actual malice, in that issue of whether "clear and
convincing" evidence of actual malice existed was not before
magistrate and his statements were not binding on court. 28
U.S.C.A.  636(b)(1)(A)

5. Libel and Slander

Defamation plaintiff failed to establish jury issue of
defendant's actual malice, though sources cited for
defendant's article denied giving defamatory information to
defendants, where defendant's showing that published
articles based on other, documented evidence was
uncontested.

6. Libel and Slander

Minor inaccuracies will not give rise to defamation claim
when ultimate defam atory implications are themselves not
actionable.

7. Libel and Slander

Evidence that defamation defendant took adversarial stance
when interviewing source for article about plaintiff was
insufficient to establish defendant's actual malice.

                          ---------

Appeal from the United States District Court for the
District of Columbia (Civil Action No. 84-03452). Mark Lane,
Washington, D.C., for appellant. David J. Branson,
Washington, D.C., for appellees.

Before MIKVA and Ruth Bader GINSBURG, Circuit Judges, and
RE*, Chief Judge, United States Court of International
Trade.

Opinion for the Court filed by Chief Judge RE.

RE, Chief Judge:

In this libel action, appellant, Liberty Lobby, Inc.,
appeals from an order of the United States District Court
for the District of Columbia which granted appellees' motion
for summary judgment. Liberty Lobby charged that the
appellees John Rees, Sheila Louise Rees, and Information
Digest libeled it by publishing two articles in Information
Digest which contained false and defamatory statements about
Liberty Lobby. The district court held that Liberty Lobby
failed to establish that a reasonable trier of fact could
find, by clear and convincing evidence, that the appellees
published either of the two articles with actual malice.

Liberty Lobby urges three grounds in support of its
contention that the district court erred in holding that a
reasonable jury could not find actual malice by clear and
convincing evidence: (1) in the course of denying a
discovery motion made by Liberty Lobby, the Magistrate
stated that Liberty Lobby already had "substantial evidence
to establish knowing falsity"; (2) two of the Reeses'
sources denied giving them information supporting the
accusations made against Liberty Lobby; and (3) the Reeses
relied upon a published article which the publisher
previously had retracted. Liberty Lobby also contends that
the district court erred in failing to grant its motion,
made pursuant to Rule 56(f) of the Federal Rules of Civil
Procedure, for permission to extend discovery, and to depose
certain confidential informants.

The question presented is whether the district court erred
in holding that Liberty Lobby failed to show that a
reasonable jury could find, by clear and convincing
evidence, that the appellees acted with actual malice in
their publication of the two articles. Based on facts in the
record that are not genuinely in dispute, we hold that a
reasonable jury could not find, by clear and

convincing evidence, that the Reeses published the articles
with knowing falsity, or with reckless disregard for the
truth or falsity of statements made in them. Accordingly, we
affirm the decision of the district court.

* Sitting by designation pursuant to 28 U.S.C.  293(a).

                         BACKGROUND

In March 1984, _Information Digest_, a biweekly newspaper
written and published by John Rees and Sheila Louise Rees,
published an article entitled "The LaRouche Aparatus [sic]
in the U.S." The article chronicles Lyndon LaRouche's
involvement with various organizations, such as Students for
a Democratic Society, the Communist Party U.S.A., and
Liberty Lobby. It also describes publications controlled by
LaRouche, and organizations operated by him, including the
National Caucus of Labor Committees, the United States Labor
Party, and the National Democratic Policy Committee. The
article characterizes LaRouche as Marxist, communist,
extremist, anti-Semitic, and revolutionary. It describes
Liberty Lobby and its founder and treasurer, Willis A.
Carto, as anti-Semitic.

On November 14, 1984, Liberty Lobby filed suit for libel
against John Rees and _Information Digest_ in the United
States District Court for the District of Columbia. Liberty
Lobby alleged that the article defamed it by asserting
falsely that Liberty Lobby was closely linked with LaRouche
and his organization, and that "some of LaRouche's more
unsavory alleged activities were set in motion as a result
of an arrangement with Liberty Lobby." In addition, Liberty
Lobby contended that the article falsely asserted that the
LaRouche organization was "given the run" of the offices
maintained by the _Spotlight_, a weekly newspaper published
by Liberty Lobby. Liberty Lobby contended that the article
"libelously damages Liberty Lobby through the technique of
guilt by association.... The overall effect of the article
is untruthfully to place Liberty Lobby among what the
article characterizes as disreputable company."

In January 1986, Liberty Lobby moved to amend and supplement
its complaint by naming Sheila Louise Rees a defendant, and
adding a second cause of action alleging that an article in
the March 8, 1985 issue of _Information Digest_, entitled
"The Populist Party," also contained false and defamatory
statements about Liberty Lobby.

The Populist Party article, written by Sheila Louise Rees,
discusses the formation, activities, and philosophy of the
Populist Party, and describes the role of Liberty Lobby and
various individuals associated with it in the Populist
Party. The article characterizes Liberty Lobby and its
founder and treasurer, Willis A. Carto, as "racialist and
anti-Semitic," and refers to the "long-term relationship of
the Lyndon H. LaRouche organization with Carto's network."

On May 30, 1986, Liberty Lobby moved to compel John Rees to
reveal the identity of a confidential source. United States
Magistrate Arthur L. Burnett denied the motion because
Liberty Lobby had not shown the requisite need. In passing,
the  Magistrate stated that "it appears that the plaintiff
already has substantial evidence to establish knowing
falsity or reckless disregard of the truth, and pursuing
these alternative sources would lead ... only to cumulative
evidence." _Liberty Lobby, Inc. v. Rees_, 111 F.R.D. 19, 23
(D.D.C.1986).

On June 17, 1986, the Reeses moved for summary judgment on
the grounds that the articles were published without actual
malice and were substantially true. In July 1986, pursuant
to Rule 56(f) of the Federal Rules of Civil Procedure,
Liberty Lobby requested leave to conduct additional
discovery, and sought access to confidential informants On
October 3, 1986, the district court granted the Reeses'
motion for summary judgment. _Liberty Lobby, Inc. v. Rees_,
667 F.Supp. 1, 6 (D.D.C.1986).

In granting the Reeses' motion for summary judgment, the
district court stated that it was applying the standard
established by the Supreme Court in _Anderson v. Liberty
Lobby, Inc._, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). Under that standard, on a motion for summary
judgment in a defamation action, the court must determine
"whether the evidence presented is such that a reasonable
jury might find that actual malice had been shown with
convincing clarity." 477 U.S. at 257, 106 S.Ct. at 2515.
After reviewing the record, the district court concluded
that "there is de minimis evidence that the defendants
published their article with knowing falsity or reckless
disregard of the truth or falsity of the assertions in those
articles." _Liberty Lobby_, 667 F.Supp. at 3.

[l] Liberty Lobby appealed the order of the district court,
and the Reeses moved for summary affirmance. This court
denied the Reeses' motion, and Liberty Lobby moved for
sanctions, costs, and attorneys' fees pursuant to this
court's General Rule 23, and Rule 38 of the Federal Rules of
Appellate Procedure. A ruling on Liberty Lobby's motion was
deferred pending oral argument. Because the application for
summary affirmance was not frivolous, and compiled with the
rules governing proceedings in this court, Liberty Lobby's
motion for sanctions, costs, and attorneys' fees is denied.

                         DISCUSSION
                              
[2] In _New York Times Co. v. Sullivan_, 376 U.S. 254, 279-
80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), the Supreme
Court held that a public official is prohibited from
"recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was
made with 'actual malice'_that is, with knowledge that it
was false or with reckless disregard of whether it was false
or not." In _Curtis Publishing Co. v. Butts_, 388 U.S. 130,
87 S.Ct. 1975, 18 L.Ed. 2d 1094 (1967), the Supreme Court
extended the "actual malice" standard to apply to statements
made about "public figures." See _id._ at 154-55, 87 S.Ct.
at 1991. Liberty Lobby concedes that it is a "public figure"
for the purposes of this defamation action. _Liberty Lobby_,
667 F.Supp. at 2. Therefore, it must establish, by "clear
and convicing proof," that the Reeses made the allegedly
defamatory statements with "actual malice." _See Gertz v.
Robert Welch, Inc._, 418 U.S. 323, 342, 94 S.Ct. 2997, 3008,
41 L.Ed.2d 789 (1974). Furthermore, the first amendment
requires that a public figure bear the burden of proving the
falsity of a defamatory statement, as well as attual malice.
See _Philadelphia Newspapers, Inc. v. Hepps_, 475 U.S. 767,
775-76, 106 S.Ct. 1558, 1563, 89 L.Ed.2d 783 (1986). The
requirements of showing "clear and convincing proof" of
actual malice, and a preponderance of evidence of falsity
are also "applicable when considering a motion for summary
judgment." _See Liberty Lobby, Inc. v. Dow Jones & Co._, 838
F.2d 1287, 1292-93 (D.C.Cir.1988); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505,
2513, 91 L.Ed.2d 202 (1986).

Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment may be entered against a party who fails to
present sufficient evidence "to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial." _Celotex
Corp. v. Catrett_, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552,
91 L.Ed.2d 265 (1986). Hence, the trial court may properly
grant summary judgment if there are no "genuine factual
issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of
either party." _Anderson_, 477 U.S. at 250, 106 S.Ct. at
2511.

[3] In _Anderson_, the Supreme Court held that "where the
factual dispute concerns actual malice, clearly a material
issue in a New York Times case, the appropriate summary
judgment question will be whether the evidence in the record
could support a reasonable jury finding either that the
plaintiff has shown actual malice by clear and convincing
evidence or that the plaintiff has not." _Anderson_, 477
U.S. at 255 56, 106 S.Ct. at 2514 (footnote omitted) Hence,
to defeat summary judgment Liberty Lobby was required to
show that the evidence could support a reasonable jury
finding, by clear and convincing evidence, that the
defendants acted with actual malice in publishing the two
articles in Information Digest.

In determining whether a party moving for summary judgment
has made a showing that there are no triable issues of fact,
a court must view all inferences to be drawn from the
underlying facts "in the light most favorable to the party
opposing the motion." _See United States v. Diebold, Inc._,
369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962);
10A C. Wright, A. Miller & M. Kane, _Federal Practice and
Procedure_  2727 (1983). Since the grant or denial of
summary judgment is a determination of law rather than one
of fact, we need not defer to the district court's
conclusions and reverse only if clearly erroneous, but
rather, may review the matter de novo. See _Nepera Chem.,
Inc. v. Sea-Land Service, Inc._, 794 F.2d 688, 699
(D.C.Cir.1986). Furthermore, in cases which implicate first
amendment issues, "an appellate court has an obligation to
'make an independent examination of the whole record' in
order to make sure that 'the judgment does not constitute a
forbidden intrusion on the field of free expression.' " _See
Bose Corp. v. Consumers Union of United States, Inc._, 466
U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984)
(quoting _New York Times Co. v. Sullivan_, 376 U.S. at 284-
86, 84 S.Ct. at 728-29). This standard of review also
applies to decisions of summary judgment in libel actions.
_See Liberty Lobby, Inc. v. Dow Jones & Co._, 838 F.2d 1293;
_Herbert v. Lando_, 781 F.2d 298, 308 (2d Cir.), _cert.
denied_, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545
(1986).

On this appeal, Liberty Lobby maintains that a United States
Magistrate in possession of all of the relevant evidence
concluded that actual malice had been established. Hence,
according to Liberty Lobby, the district court erred in
holding that no reasonable juror could have determined that
the Reeses acted with actual malice. Liberty Lobby reads too
much into the Magistrate's statement. During discovery,
Liberty Lobby moved to compel the Reeses to disclose a
confidential source. The Magistrate denied the motion on the
grounds that Liberty Lobby had neither exhausted alternative
sources for the information nor shown a compelling need for
disclosure of the name, since its only value was to impeach
the  credibility of defendants John and Sheila Rees.
_Liberty Lobby, Inc. v. Rees_, 111 F.R.D 19, 23
(D.D.C.1986). Liberty Lobby  underscores the Magistrate's
comment that, in his view, "the plaintiff has sufficient
other evidence suggesting fabrication, or at least reckless
disregard of the truth  based both on alternative sources
and plaintiff's counsel's eliciting responses from both John
Rees and Sheila Louise Rees, which as a matter of
circumstantial evidence, will support arguments of malice,
knowing falsity or reckless disregard of the truth." Id., at
22.

[4l The Magistrate, we emphasize, specifically cautioned
that his observation or statement was not intended to
"prejudge the merits of this case...." _Liberty Lobby_, at
23. The Reeses also point out that the Magistrate did not
review all of the evidence showing their reliance on
previously published sources, but heard only Liberty Lobby's
questioning of the Reeses at their depositions. Furthermore,
the Magistrate had no need to consider the "clear and
convincing" standard of actual malice in settling the
discovery dispute. Hence, the district court was correct in
noting that "[t]his issue and standard were not before the
Magistrate," and that his statements were not binding on the
court. _Liberty Lobby_, 667 F.Supp. at 5; see 28 U.S.C.
636(b)(1)(A) (1982). Moreover, the district court identified
the correct standard, and expressly stated that, "the Court
iterates that its mandate is to examine the entire record
before it and to appiy a clear and convincing standard."
_Liberty Lobby_, 667 F.Supp. at 5.

[5] Liberty Lobby also submits that, on the basis of the
affidavits of James D. Tucker and Stanley Rittenhouse, a
reasonable jury could find clear and convincing evidence of
actual malice: the affiants are cited as sources for the
articles, but, in their affidavits, they deny giving
JohnRees information as to the relationship between Liberty
Lobby and Lyndon LaRouche, and deny providing support for
the charge of anti-Semitism. Liberty Lobby that this
conflict in the testimony raises issues of credibility
suitable for a jury, and suggests actual malice.

The district court, with respect to this matter, stated that
"the clear and convincing evidence standard on the state of
mind of the defendants must be viewed from the entire
record," _Liberty Lobby_, 667 F.Supp. at 3, and concluded
that the record revealed that Liberty Lobby's "own writings
... negate any clear evidence of malice. Those written
expressions and some overt actions by plaintiff as well as
the defendants [sic] attribution to other sources, cause the
plaintiff's evidence to fall far short of the clear and
convincing standard." _Id._

Even if we were to assume that the statements made by
affiants were true, thev would not alter the Reeses'
uncontested showing that the published articles were based
on documented evidence. It has been stated that "defamation
defendants will not be forced to defend, nor will a trial
judge in a later libel case have to retry, the truthfulness
of previous reports made by independent publishers."
_Rosanova v. Playboy Enters., Inc._, a80 F.2d 859, 862 (ath
Cir.1978). See also _Liberty Lobby, Inc. v. Dow Jones &
Co._, 838 F.2d at 129798 (no actual malice in Wall Street
Journal charge that Liberty Lobby is anti-Semitic).

As stated by the district court, the Reeses provided a
multitude of sources on which they relied to support both
the characterization of Liberty Lobby as anti-Semitic, and
the asserted relationship between LaRouche and Liberty
Lobby. In support of their allegation that Liberty Lobby was
racist and anti-Semitic, the Reeses submitted the following
items, among others: (1) a statement by Congressman Larry
McDonald which described Liberty Lobby as "an organization
founded by Willis Carto who seeks to use American populist
causes as the method to bring about a National Socialist
(Nazi) regime." 127 Cong.Rec. 380-381 (1981); (2) an article
in the September 10, 1971 issue of National Review that
contained an excerpt from a letter written by Willis Carto,
which states that the international Jews, by their
"propaganda, lies and demands ... blinded the West as to
what [Hitler's] Germany was doing"; (3) two reports in
Extremism on the Right, by the Anti-Defamation League of
B'nai B'rith, that described Liberty Lobby as "the best-
financed anti-Semitic organization in the United States";
(4) an introduction written by Willis Carto to the book
Imperium, which was sold and advertised by Liberty Lobby,
and which contained passages such as "the Jew is a product
of another Culture," and "the Negro is below our Culture";
(5) an article in Our Town that described Liberty Lobby as
"a rabidly anti-Semitic outfit"; (6) a New York Times
article which noted that the U.S. Labor Party's "anti-
Semitic turn" could be traced to its contact with Liberty
Lobby's _Spotlight_; and (7) the observation of then Circuit
Judge Warren E. Burger that Liberty Lobby supports "various
programs of 'political education,' some of which contain
overtones of anti-Semitism and racism .... " _Liberty Lobby,
Inc. v. Pearson_, 390 F.2d 489, 491 n. 7 (D.C.Cir.1968).

Liberty Lobby also argues that summary judgment was improper
since: (1) the Reeses' reliance on Congressman McDonald's
remarks was inappropriate because Sheila Rees previously had
worked for the Congressman; and (2) the Reeses' reliance on
the National Review article, and Carto's introduction to
Imperium was inappropriate because Liberty Lobby is distinct
from Willis Carto.  Liberty Lobby's argument that the Reeses
"laundered" their views through Congressman McDonald must
fail because the Congressman did not rely exclusively on the
Reeses as sources, and the conclusions he formed on Liberty
Lobby were his own. Finally, since Willis Carto is the
founder and treasurer of Liberty Lobby it was not
unreasonable for the Reeses to conclude that Liberty Lobby
shared his views.

To establish the relationship between Liberty Lobby and
LaRouche, the Reeses submitted the following items, among
others: (1) a National Review article written by former
Labor Party member Gregory Rose, which made reference to
"intimate ties" between LaRouche and Liberty Lobby; (2) a
letter from Congressman McDonald to Colonel Dall of Liberty
Lobby stating that Liberty Lobby and the _Spotlight_ have
collaborated with the U.S. Labor Party; (3) a letter written
by James Tucker, former editor of the _Spotlight_, reporting
that he had been ordered to publish stories favorable to the
U.S. Labor Party;  (4) a New York Times article which made
reference to Liberty Lobby as the "first right wing contact"
to one of LaRouche organizations; (5) Liberty Lobby's
memorandum of January 10, 1980, on r Rouche's U.S. Labor
Party, which was published in the _Spotlight_; (6) the
_Spotlight's_ October 11, 1976 review of the U.S. Labor
Party's book, _Carter and the Party of International
Terrorism_, published with an advertisement for the book
through Liberty Lobby; and (7) Liberty Lobby's republication
of an article from the LaRouche publication _Investigative
Leads_.

In addition to these published sources,  the Reeses relied
on numerous interviews with individuals, including Kevin
Lynch, articles editor of _National Review_, and Dennis
King, author of the _Our Town_ series on LaRouche.

Liberty Lobby's only argument of any weight at all derives
from one sentence in the over 40-page single-spaced John
Rees report: "Scott Thompson and others from the LaRouche
operation were given the run, of _Spotlight's_ Capitol Hill
offices and produced material for that publication." _See
The LaRouche Aparatus [sic] in the U.S._, 17 _Information
Digest_ 79 (1984). Actually, the _Spotlight_ reproduced two
versions of an article which originally appeared in the
LaRouche publication _Investigative Leads_. The article
entitled "Queer Ideas Pushed in U.S." appeared in the
September 3, 1984 issue of the _Spotlight_, and another
version of the article entitled "International Perverts Push
Queer Ideas in United States" appeared in the _Spotlight_ 4
months later. Although the link to LaRouche was not
indicated specifically, both articles bore the by-line "From
'Investigative Leads."'

[6] As a source for the statement that "the LaRouche people"
were "given the run" of the Spotlight's offices, John Rees
cited the report in National Review that  "Thompson [from
LaRouche's organization] met regularly with Carto [Liberty
Lobby's founder] through 1975 and 1976." The statement
"given the run" may suggest more than regular meetings, and
may go beyond journalistic exaggeration or embellishment.
Nevertheless, minor inaccuracies will not give rise to a
defamation claim when the ultimate defamatory implications
are themselves not actionable. _See Tavoureas v. Piro_, 817
F.2d 762, 788 (D.C.Cir.) en banc), _cert. denied_, --U.S.--
, 108 Ct. 200, 98 L.Ed.2d 151 (1987); see also statement
(Second) of Torts  581A comment f, at 237 (1977).
Furthermore, actual malice is not established in cases in
which the statement is substantially accurate. _See
Tavoulareas_, 817 F.2d at 787-88 (no actual malice in
alleging "direct link" beeen two companies with no formal
ties, where numerous other connections made the statement
substantially accurate).

It is evident that the Reeses offered numerous published
documents to support their charge that Liberty Lobby
associated with the LaRouche organization. Hence, the
statement cited by the plaintiff as inaccurate cannot be
isolated from its context, and does not constitute a
separate and distinct defamation. Liberty Lobby also argued
that the Reeses improperly relied on an article published in
National Review, which had retracted its allegations of
"intimate ties" linking Liberty Lobby to LaRouche. The
retraction, however, involved onIy one sentence, and did not
affect the description of the ties between the two groups.

[7] Lastly, Liberty Lobby asserts that John Rees became
angry after Rittenhouse reused to state in his interview
that Liberty Lobby and LaRouche had a close relationship.
Liberty Lobby contends that Rees' action demonstrates his
"animosity and hatred" for Liberty Lobby and supports its
claim of actual malice. The law is clear, however, that
"[a]n adversarial stance is fully consistent with
professional, investigative reporting" and is "not
indicative of actual malice." _Tavoulareas_, 817  F.2d at
795.

Liberty Lobby also challenged the district court's failure
to grant its application, pursuant to Rule 56(f) of the
Federal Rules of Civil Procedure, to depose Dennis King,
author of an article in Our Town, and Martha Powers, who had
typed some business letters for the Reeses and was also
their landlady. The record shows that Liberty Lobby had
known for 2 years that the Our Town article was a source for
the Reeses' articles, and that at most, Martha Powers played
a minor role in this dispute. In light of the lengthy and
exhaustive discovery period, the district court's denial of
appellant's motion was not an abuse of discretion.

We need not burden this opinion by further recitations from
the record, for the absence of sufficient evidence of actual
malice is strikingly apparent. The Supreme Court has
emphasized that actual malice is not ill will or personal
spite; it is the making of a statement with knowledge that
it is false, or with reckless disregard of whether it is
true. See _Beckley Newspapers Corp. v. SIanks_, 389 U.S. 81,
82-83, 88 S.Ct. 197, 198-99, 19 L.Ed.2d 248 (1967). The test
for the reckless disregard of the truth is not whether a
reasonably prudent person would have published the
statement, but rather, whether there is "sufficient evidence
to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his
publication." _St. Amant v. Thompson_, 390 U.S. 727, 731, 88
S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).

                         CONCLUSION
                              
After a thorough review of the record, we hold, in agreement
with the district  judge, that Liberty Lobby did not
demonstrate the existence of sufficient evidence to permit a
reasonable jury finding, rooted  in clear and convincing
proof, that the statements were made with knowledge that they
were false, or with reckless disregard of whether or not they
were true. Accordingly, the district court's entry of summary
judgment against Liberty Lobby is affirmed.

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