Archive/File: orgs/american/liberty.lobby/legal/ll-v-rees.defamation
See also: orgs/american/liberty.lobby/legal/ll-v-rees-appeal
Last-Modified: 1996/10/08 

                 LIBERTY LOBBY, INC. v. REES
             Cite as 667 F.Supp. 1 (D.D.C. 1986)
                              
               LIBERTY LOBBY, INC., Plaintiff,
                              v.
  John REES, Sheila Louise Rees and the Information Digest,
                         Defendants.
                              
                      C.A. No. 84-3452
     United States District Court, District of Columbia.
                       October 3, 1986

Corporation brought defamation action against magazine and
its staff, alleging defamation in assertion of relationship
between corporation and another and assertion of racism,
anti-semitism, and neo-nazism by corporation. On cross-
motions for summary judgment, the District Court, Revercomb,
J., held that: (1) plaintiff corporation was "public figure"
for defamation purposes, and (2) record established that
articles were not published with actual malice.

Summary judgment for defendants.

1. Libel and Slander

"Liberty Lobby, Inc." was "public figure" for defamation
purposes, given that corporation had been previously
characterized as public figure in defamation actions and had
had full and fair opportunity to litigate issue of its
public figure status, and that nothing in record suggested
that status of corporation had changed.

     See publication Words and Phrases for other judicial
     constructions and definitions.

2. Federal Civil Procedure

Clear and convincing standard applicable to state of mind of
defendants in defamation action on cross-motions for summary
judgment had to be viewed from entire record.

3. Libel and Slander

Record in defamation action against magazine and its staff
by corporation which was public figure for defamation
purposes established allegedly defamatory articles had not
been published with actual malice, although affidavits
placed in dispute what affiants said in interviews
pertaining to relationship between corporation and another;
plaintiff corporation's own writings negated any clear
evidence of malice, and those writings and some overt
actions by plaintiff corporation, as well as attribution to
other sources, caused evidence to fall far short of clear
and convincing standard necessary to avoid summary judgment
for magazine and its staff, in action alleging defamation
through assertion of relationship between plaintiff
corporation and another and through assertion of racism,
anti-semitism, and neo-nazism on part of plaintiff
corporation.

                             ---
                              
David J. Branson, Sharon A. Sprague, Kaye, Scholer, Fierman,
Hays & Handler, Washington, D.C., for defendants.

Mark Lane, Linda Huber, Washington, D.C., for plaintiff.

                     MEMORANDUM OPINION
                          AND ORDER
                              
REVERCOMB, District Judge.

This matter is before the Court on defendants' motion for
summary judgment and the plaintiff's opposition thereto.
Oral argument was heard July 21, 1986.

This is a defamation action, commenced on November 14, 1984
by plaintiff, a not-for-profit corporation and self-described 
"citizens' lobby".

The plaintiff filed this diversity libel action in the
United States District Court for the District of Columbia
alleging that various statements in each of two articles
published by the defendants were defamatory.

Named as defendants were John Rees, publisher and editor of
Information Digest, Sheila Louise Rees, an editorial
assistant and writer for Information Digest and Information
Digest itself, a bi-weekly magazine published in Baltimore,
Maryland. Information Digest is distributed to many
newspapers and magazines throughout the country and to
various law enforcement agencies including police
departments and the Bureau of Alcohol, Tobacco and Firearms.

The alleged defamation of which plaintiff complains appeared
in two separate issues of Information Digest -- March 30,
1984, and March 8, 1985, (hereinafter "the 1984 article" and
"the 1985 article" respectively)

The 1984 article was entitled "The LaRouche Apparatus in the
U.S." and it dealt with Lyndon LaRouche and various
organizations allegedly operated by LaRouche. The article
portrayed LaRouche as "espousing Marxist, communist,
extremist, paranoid, anti-semitic, revolutionary views"
(Plaintiff's Second Amended and Supplemental Complaint p. 3)
and then, plaintiff alleges, "promulgates the false
assertion that Liberty Lobby, Inc. and LaRouche are closely
linked and allied, and even that some of LaRouche's more
unsavory alleged activities were set in motion as a result
of an arrangement with Liberty Lobby."

Thus plaintiff alleges the article damages it "through the
technique of guilt by association" and that defendants
"falsely imply that all evils they attribute to LaRouche are
tolerated by, shared by and to some extent caused by Liberty
Lobby." The overall effect of the article, plaintiff
concludes, is "untruthfully to place Liberty Lobby among
what the article characterizes as disreputable company."

The 1984 article, plaintiff contends, is further defamatory
in that it characterizes plaintiff as "race-hating, anti-
semitic, totalitarian (and) of the National Socialist
model." (Second Amended and Supplemental Complaint p. 6)
These alleged libels of Liberty Lobby were also raised in
the context of the relationship between Lyndon LaRouche and
Liberty Lobby.

The 1985 article, entitled "The Populist Party", according
to plaintiff, also imposes liability for defamation in that
it too characterizes Liberty Lobby as racialistic,
antisemitic and neo-nazi and further asserts the existence
of a long-term relationship between Liberty Lobby and
LaRouche.

[1] The plaintiff's status in a defamation action has
previously been litigated by the Courts in this Circuit.<1>
There is nothing in the record in this case to suggest the
status of plaintiff has changed. Plaintiff has had "a full
and fair opportunity to litigate the issue of its public
figure status. See Blonder-Tongue Laboratories, Inc. v.
University of Illinois Foundation 402 U.S. 313, 329, 91
S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971). In this case
plaintiff is a public figure for defamation action
purposes.<2>

In this most recent term the United States Supreme Court
held in Anderson v. Liberty Lobby, 106 S.Ct. 2505 (1986)
that a court, in ruling on a motion for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure, must
apply the clear-and-convincing evidence standard. The
Supreme Court in Anderson promulgated the following test for
this Court to apply:

   When determining if a genuine factual issue as to actual
   malice exists in a libel suit brought by a public figure, a
   trial judge must bear in mind the actual quantum and quality
   of proof necessary to support liability under New York
   Times. For example, there is no genuine issue if the
   evidence presented in the opposing affidavits is of
   insufficient caliber or quantity to allow a rational finder
   of fact to find actual malice by clear and convincing
   evidence.

106 S.Ct. at 2513.

The Supreme Court further elaborated that:

   Consequently, where the New York Times 'clear and
   convincing' evidence requirement applies, the trial judge's
   summary judgment inquiry as to whether a genuine issue
   exists will be whether the evidence presented is such that a
   jury could reasonably find for either the plaintiff or the
   defendant. Thus 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.

106 S.Ct. at 2514.

As this case nears the two-year mark, many depositions have
been taken, many affidavits have been filed and the record
is heavily weighted with documentary evidence, much of it
the publications and writings of both the plaintiff and the
defendants. Discovery has been exhaustive.

After a review of this record the Court concludes 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.

[2,3] The primary argument of plaintiff is that a
reasonable jury, on the basis of the affidavits of James D.
Tucker (Pl's Exhibit A) and Stanley Rittenhouse (Pl's
Exhibit H), could find clear and convincing evidence of
malice on the part of defendants. These affidavits place in
dispute what the affiants said to the defendant, John Rees,
in interviews pertaining to the relationship between
plaintiff and LaRouche. Under the Anderson test, issues of
credibility certainly remain jury questions. However, the
clear and convincing standard on the state of mind of the
defendants must be viewed from the entire record. And it is
the plaintiff's own writings which negate any clear evidence
of malice. Those written expressions and some overt actions
by plaintiff as well as the defendant's attribution to other
sources, cause the plaintiff's evidence to fall far short of
the clear and convincing standard. On the assertion of the
relationship between Liberty Lobby and LaRouche, the record
shows the following:

   1. On May 24,1977 Congressman Larry McDonald wrote a letter
   to Colonel Dall of Liberty Lobby stating: "Liberty Lobby
   and _Spotlight_ (Liberty Lobby News paper) have collaborated
   with a Marxist Leninist organization called the National
   Caucus of Labor Committees, also known as the U.S. Labor
   Party" (LaRouche's organization). (000250 of Appendix B to
   affidavit of John Rees)

   2. In a letter from Spotlight editor Jim Tucker to
   Congressman Larry McDonald, reprinted in Congressional
   Record, March 16, 1982, Tucker states: "My struggle began
   with direct orders to publish stories reflecting favorably
   on the Labor Party which had made statements which some
   people at Liberty Lob by appreciated." (Defendant's Exhibit 16)

   3. A March 1979 article in the National Review written by
   former U.S. Labor Party member Gregory Rose made reference
   to the LaRouche organization's "intimate ties with Willis
   Carto's Liberty Lobby." (Defendant's Exhibit 11)

   4. A New York limes article of October 8, 1979 written by
   Paul Montgomery of that newspaper made reference to Liberty
   Lobby as one of the LaRouche organization's "first right
   wing contacts." As to defendant's state of mind, the Court
   notes that in the 1984 article, defendant Rees, attributed
   the material to the New York Times.

   5. A January 10, 1980 position paper issued by Liberty Lobby
   stated that the USLP should "qualify" for a "political
   alliance." (Defendant's Exhibit 16)

   6. In the September 9, 1981, edition of the Congressional
   Record Congressman Larry McDonald published a statement in
   which he made reference to the September 7, 1981 issue of
   Spotlight. McDonald stated: "Much of the Spotlight article
   appears to have been lifted from the writings of the
   LaRouche cult ..." McDonald further stated: "Spotlight's
   copying of the LaRouche material is obvious . . . " and then
   stated "But why should Liberty Lobby, which claims to be
   both patriotic and anti-communist, jump in on LaRouche's
   side?" (Defendant's Exhibit 13)

   7. Liberty Lobby promoted and sold copies of U.S. Labor
   Party books Dope, Inc. and Carter and the Party of
   International Terrorism (Defendant's Exhibit 37, Page 13 of
   Plaintiff's Response to Defendant's First Set of
   Interrogatories) 

   8. The September 3, 1984, issue of Spotlight reprinted an 
   article from a LaRouche publication Investigative Leads entitled 
   "Queer Ideas Pushed in U.S."

On the issue of actual malice in alleging Liberty Lobby's
racism, anti-semitism and neo-nazism the record discloses
that:

   1. In January, 1981, in the Congressional Record Congressman
   McDonald 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." (Defendant's Exhibit 7).

   2. An article in the September 10, 1971 issue of National
   Review contains an excerpt from a letter written by Willis
   Carto which states in part: "Hitler's defeat was the defeat
   of Europe. And America. How could we have been so blind? The
   blame it seems must be laid at the door of the International
   Jews. It was their propoganda, lies and demands which
   blinded the West as to what Germany was doing." (Defendant's
   Exhibit 8)

   3. A report by the Anti-Defamation League of B'nai B'rith
   entitled Extremism on the Right states: "Liberty Lobby, 
   self-described as a 'pressure group for patriotism,' is the 
   best-financed antisemitic organization in the United States."
   (Defendant's Exhibit 9)

   4. Willis Carto wrote the 35-page introduction for a 1983
   edition of Francis P. Yockey's book Imperium. Passages from
   that book state that "the Jew is a product of another
   Culture," and that "the Negro is below our Culture."
   (Defendant's exhibit 5)

   5. In Liberty Lobby v. Pearson, 390 F.2d 489, 491 n. 7
   (D.C.Cir.1968) Judge Burger stated that Liberty Lobby's
   materials contained racist and anti-semitic matter.

Other than the credibility issue raised by the two
affidavits, nothing that plaintiff has proffered indicates
that defendants researched, wrote and published their
article in "extreme departure from the standards of
investigation and reporting ordinarily adhered to by
responsible publishers." Curtis Publishing Co. v. Butts, 388
U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1966).

In examining the salient facts in this case which would tend
to prove or disprove the existence of actual malice on the
part of defendants the Court concludes that any evidence of
actual malice falls far short of the clear and convincing
standard.

Clear and convincing evidence has been defined as "that
measure or degree of proof which will produce in the mind of
the trier of facts a firm belief or conviction as to
allegations sought to be established." See, Hobson v. Eaton,
399 F.2d 781, 784 A.2d (6th Cir.1968). "It is intermediate,
being more than a mere preponderance, but not to the extent
of such certainty as is  required beyond a reasonable doubt
as in criminal cases. It does not mean clear and
unequivocal." Id.

"Whether evidence is clear and convincing requires weighing,
comparing, testing, and judging it when considered in
connection with all the facts and circumstances in evidence"
30 Am.Jur. Evidence Sec. 1167 (1967).

It would appear that in making the editorial decision to
write that a relationship existed between Liberty Lobby and
the LaRouche organization, that defendants reasonably relied
on the above salient representations of facts

The defendants had before them a panoply of documents some
of them Liberty Lobby's, others being national newspapers
and magazines. A former U.S. Labor Party Member had
described in a National Review article the "intimate ties"
between the two organizations. A Liberty Lobby position
paper stated that the U.S. Labor Party should qualify as a
political ally of Liberty Lobby. The late Congressman Larry
McDonald on at least two separate occasions asserted the
collaboration of Liberty Lobby and Spotlight with the U.S.
Labor Party. The former editor of Spotlight. acknowledged
that he published favorable articles on the U.S. Labor Party
on direct orders from his superiors.

This Court's mandate is to examine all the facts and
circumstances in the record before it. The facts in this
record could not produce in a reasonable juror's mind firm
belief or conviction as to the existence of actual malice.
There was a sufficient basis upon which defendant could
reasonably infer the existence of a close relationship
between Liberty Lobby and the LaRouche organization.

The Court notes that in his Memorandum Opinion of June 10,
1986, on a discovery related issue, Magistrate Arthur
Burnett stated 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, i.e. knowing falsity or reckless
disregard of the truth." Memorandum Opinion 6/10/86 at p. 8. 
The Magistrate added that "it appears that the plaintiff
already has substantial evidence to establish knowing
falsity or reckless disregard of the truth ..." Memorandum
Opinion at pp. 10-11.

The Magistrate's discovery observations notwithstanding, the
Court iterates that its mandate is to examine the entire
record before it and to apply a clear and convincing
standard. This issue and standard were not before the
Magistrate.

There is no clear and convincing evidence in this record
that defendants had a "high degree of awareness of ...
probable falsity," Garrison v. 3 Louisiana 379 U.S. 64, 85
S.Ct. 209, 215, 13 L.Ed.2d 125 (1964), or that defendants
had "in fact entertained serious doubts as to the truth of
(their) publication." St. Amant v. Thompson, 390 U.S. 727,
731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). On the
contrary, defendants have proffered affirmative evidence
tending to show that the articles were published in good
faith and without actual malice. The defendants consulted
many previously published accounts of plaintiff's anti-
semitism, racism and neonazism and of plaintiff's
relationship with Lyndon LaRouche and his organization.

On August 18, 1986, this Court stated from the bench that
the defense of substantial truth was an additional ground
for granting defendants' motion for summary judgment as to
the allegation of anti-semitism. Upon reconsideration the
Court does not enter such a finding However, the extensive
record before Judge Jackson in Liberty Lobby, Inc. u Dow
Jones & Co., 638 F.Supp. 1149 (D.D.C.1986) led that Court to
hold that Liberty Lobby was an anti-semitic organization.
Although the record in this case would also support such a
finding this Court need only apply to all allegedly
defamatory statements the clear and convincing standard of
actual malice.

This Court concludes, by applying the test in Anderson, that
plaintiff cannot show to a reasonable trier of fact by clear
and convincing evidence that defendant published either of
its two articles with actual malice -- that is, with
knowledge of its falsity or with reckless disregard for
whether it was false or not.

Accordingly, defendant's Motion for Summary Judgement is
GRANTED.

Footnotes
                              
<1> In Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563
(D.C.Cir.1984), aff'd on other is ue, 477 U.S. 242, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court of Appeals
noted that plaintiff is a public figure stating that Liberty
Lobby (and Willis Carto) does "not question the District
Court's ruling that they were so called limited purpose
public figures, and that the alleged libels pertained to the
area in which they held this status." 746 F.2d at 1569.  In
the Anderson action, the District Court relying on Ccrtz v.
Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d
789 (1974) found Liberty Lobby, as a political lobbyist not
to be a public figure for all purposes and in all contexts,
but a public figure who has voluntarily injected himself or
is drawn into a particular public controversy, and thus a
public figure for a limited range of issues.  Similarly, in
Liberty Lobby, Inc. v. National Review (Div. Action No. 80-
1067, slip op. J. Joyce Hens Green) Liberty Lobby conceded 
that it is a public figure for defamation action purposes.

<2> As plaintiff is a public figure this Court must apply
the New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964) actual malice test.

In _New York Times_, the Court held that a public official
would be prohibited from recovering damages for a defamatory
falsehood 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." 376 U.S. at 279-80, 84 S.Ct. at 726.

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