Nader v. De Toledano

HARRIS, Associate Judge,

concurring in part and dissenting in part:

I am convinced that the trial court, in granting both defendants’ motions for summary judgment, applied the correct standard (actually the very standard the majority ultimately endorses) and decided the issues correctly. 1 Therefore, while I concur in the majority’s affirmance of the ruling in favor of defendant-appellee Copley Press, I respectfully dissent from the majority’s reversal of the trial court’s granting of summary judgment in favor of defendant-ap-pellee de Toledano.

In addition, I register perplexity at the majority’s traversing such a long and tortuous path to arrive at the point of expressing the summary judgment standard for such cases. In my view, the majority enmeshes itself in a needlessly extended discussion, injecting confusion into an area of the law which has appeared clear to virtually every court — including the trial court in this case — that has confronted the matter.

I

Addressing my latter concern first, I respectfully submit that the majority has misread much of the directly relevant case law, and that it incorrectly concludes that the standard enunciated and applied by the trial judge was improper. Initially, I fear that the majority focuses too much attention upon Judge WRIGHT’s concurring opinion in Wasserman v. Time, Inc., 138 U.S.App.D.C. 7 , 9, 424 F.2d 920, 922 , cert. denied, 398 U.S. 940 , 90 S.Ct. 1844 , 26 L.Ed.2d 273 (1970). As I read that brief opinion, Judge WRIGHT offered two suggestions for the disposition of public figure libel cases: (1) Because of the significant *60 First Amendment implications, the heightened clear-and-convincing-proof-of-actual-malice burden must be applied at the summary judgment stage, and (2) “[i]f the case survives the defendant’s summary judgment motion, the trial court” in ruling on a later motion for a directed verdict should itself weigh the evidence and draw the most reasonable inferences and conclusions therefrom. Id., 138 U.S.App.D.C. at 9, 424 F.2d at 922 . The majority interprets Judge WRIGHT’s opinion as proposing that the second of his suggestions be applied at the summary judgment stage as well as after the close of the plaintiff’s case at trial. While I disagree with that interpretation, a few other courts appear to have reached the same conclusion in considering Judge WRIGHT’s language. See Fadell v. Minneapolis Star & Tribune Co., 557 F.2d 107,108 (7th Cir.), cert. denied, 434 U.S. 966 , 98 S.Ct. 508 , 54 L.Ed.2d 452 (1977); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 864-65 (5th Cir. 1970). Since that distinction is not of significance in this case, I am willing to accept the majority’s interpretation arguen-do.

In any event, the fact is that virtually every court dealing with the subject, both before and after Wasserman (including the cases cited by the majority), has explicitly acknowledged the validity of the first of Judge WRIGHT’s suggestions (that the trial judge must take into account the New York Times v. Sullivan -mandated-clear- and-convincing-proof standard at summary judgment) and rejected Judge WRIGHT’s second suggestion (that the trial court in these cases should usurp the jury’s task of weighing the evidence and drawing any legitimate inferences therefrom). See, e. g., Fadell v. Minneapolis Star & Tribune Co., supra; Walker v. Cabalan, 542 F.2d 681, 684 (6th Cir. 1976), cert. denied, 430 U.S. 966 , 97 S.Ct. 1647 , 52 L.Ed.2d 357 (1977); Alioto v. Cowles Communications, Inc., 519 F.2d 777, 780 (9th Cir.), cert. denied, 423 U.S. 930 , 96 S.Ct. 280 , 46 L.Ed.2d 259 (1975); Guam Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d 438, 441 (9th Cir.), cert. denied, 419 U.S. 872 , 95 S.Ct. 132 , 42 L.Ed.2d 111 (1974); Bon Air Hotel, Inc. v. Time, Inc., supra; Goldwater v. Ginzburg, 414 F.2d 324, 337-40 (2d Cir. 1969), cert. denied, 396 U.S. 1049 , 90 S.Ct. 701 , 24 L.Ed.2d 695 (1970); Time, Inc. v. McLaney, 406 F.2d 565, 572-73 (5th Cir.), cert. denied, 395 U.S. 922 , 89 S.Ct. 1776 , 23 L.Ed.2d 239 (1969); Hutchinson v. Proxmire, 431 F.Supp. 1311, 1328, 1330 (W.D.Wis.1977), aff’d, 579 F.2d 1027 (7th Cir. 1978), rev'd on other grounds, - U.S. -, 99 S.Ct. 2675 , 61 L.Ed.2d 411 (1979); Wolston v. Reader’s Digest Association, Inc., 429 F.Supp. 167, 179 (D.D.C.1977), aff’d, 188 U.S.App.D.C. 185 , 578 F.2d 427 (1978), rev’d on other grounds, - U.S. -, 99 S.Ct. 2701 , 61 L.Ed.2d 450 (1979); Buchanan v. Associated Press, 398 F.Supp. 1196, 1204-05 (D.D.C.1975); Kent v. Pittsburgh Press Co., 349 F.Supp. 622 (W.D.Pa.1972); West v. Northern Publishing Co., Alaska, 487 P.2d 1304 (1971); Phoenix Newspapers, Inc. v. Church, 24 Ariz.App. 287 , 537 P.2d 1345, 1356 (1975); Stone v. Essex County Newspapers, Inc., 367 Mass. 849 , 330 N.E.2d 161, 175 (1975); Chase v. Daily Record, Inc., 83 Wash.2d 37 , 515 P.2d 154, 157 (1973). See also Hoffman v. Washington Post Co., 433 F.Supp. 600, 604-05 (D.D.C.1977), aff’d by unpublished opinion (D.C.Cir., No. 77-1773, May 23, 1978). Some courts have been more explicit than others in setting forth the appropriate standard, but by no means can it accurately be said that there are alternative approaches abroad in the land.

In my view, the majority creates a nonexistent debate in its insistence that several courts (including the trial court herein) have embraced the mistaken view that at summary judgment (or an analogous juncture), the trial judge should, after considering the evidence in the light most favorable to the plaintiff, decide whether he or she is satisfied that actual malice has been established by clear and convincing proof. The proper inquiry for the judge to make is not whether he personally believes that the clear and convincing proof standard has been met; rather, the judge is to decide whether a reasonable juror permissibly could so conclude. Thus, I cannot accept the majority’s thesis that several courts, *61 taking a cue from Judge WRIGHT in Was-serman, supra, have endorsed and/or applied the incorrect approach, and that only Guam Federation of Teachers, supra (and a line of cases guided by it), illuminates the proper approach to the task.

In Wasserman, supra, Judge WRIGHT said in part that “the trial court . must decide whether actual malice has been shown with ‘convincing clarity.’ ” 138 U.S.App.D.C. at 9, 424 F.2d at 922 . Perhaps we ought not focus too closely on Judge WRIGHT’s precise choice of words, inextricably linked as they may be in some readers’ minds with his poorly received second suggestion that trial judges themselves should weigh the evidence in deciding such matters. The majority apparently has been distracted in this way. The fact is that several other courts — all of which have rejected the suggestion that the trial judge weigh the evidence — have expressed similarly the approach they must take in dealing with such motions in public figure libel cases. To set forth a number of such statements in abbreviated fashion: (1) “[Njone of the proofs . . . satisfies the constitutional standard with the convincing clarity necessary to raise a jury question . . .” Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 55 , 91 S.Ct. 1811, 1825 , 29 L.Ed.2d 296 (1971). (2) The “record . . . demonstrated that no proof was adduced that had ‘the convincing clarity’ [demanded by New York Times v. Sullivan].” Time, Inc. v. McLaney, supra, at 573. (3) “Such techniques do not rise to the constitutional level of a clear and convincing showing of reckless disregard.” Meeropol v. Nizer, 381 F.Supp. 29, 35 (S.D.N.Y.1974), aff’d in relevant part, 560 F.2d 1061, 1065 (2d Cir. 1977), cert. denied, 434 U.S. 1013 , 98 S.Ct. 727 , 54 L.Ed.2d 756 (1979). (4) “Having reviewed the extensive record, I conclude that plaintiff has failed to raise a genuine question as to the existence of [actual malice].” Oliver v. Village Voice, Inc., 417 F.Supp. 235, 239 (S.D.N.Y.1976). (5) “[T]he defendants here were entitled to summary judgment unless [plaintiff] . . . could show enough to go to a jury on the issue of actual malice.” Wolston v. Reader’s Digest Association, Inc., supra, 188 U.S.App.D.C. at 189 , 578 F.2d at 431 . (6) “[D]efendant’s motion should be granted if plaintiff is unable to establish clearly and convincingly that defendants acted with actual malice. [Citation omitted.]” Wolston v. Reader’s Digest Association, Inc., supra, 429 F.Supp. at 179 . (7) “The record in this case fails to demonstrate that plaintiff could produce clear and convincing evidence that each defendant acted with actual malice.” Hoffman v. Washington Post Co., supra, at 605. (8) “After review of all the evidence which would be introduced at trial there would be no jury issue on malice.” Buchanan v. Associated Press, supra, at 1205. Finally, (9):

The record . . . demonstrates that no proof of actual malice has been adduced that has “the convincing clarity which the constitutional standard demands.” [Citing New York Times v. Sullivan and Time, Inc. v. McLaney, supra.}

******

“Unless the court finds . . . that the plaintiff can prove actual malice in the Times sense, it should grant summary judgment.” Bon Air Hotel, Inc. v. Time, Inc., supra, 426 F.2d at 864 ; Wasserman v. Time, supra, 138 U.S.App.D.C. 7 , 424 F.2d at 922 .

LaBruzzo v. Associated Press, 353 F.Supp. 979, 987-88 (W.D.Mo.1973). See also the formulation in Curran v. Philadelphia Newspapers, Inc., - Pa.Super. -, 395 A.2d 1342, 1348 (1978) (virtually identical to that in LaBruzzo, supra — also citing Bon Air and Wasserman).

In this case, the trial judge quite accurately framed the summary judgment standard as follows:

In considering a motion for summary judgment, the first task of this Court is the determination of whether there exist any genuine issues of material fact, Rule 56(c), Civil Rules of the Superior Court. To demonstrate the existence of such issues, a public figure plaintiff in a libel action must show that the evidence and permissible inferences, when viewed as *62 favorably as possible for the plaintiff, establish with convincing clarity that the defendants acted with actual malice.

There simply is no basis for the majority’s conclusion that some or all of the cited courts (and others which have expressed in similar fashion the decisional task to be performed) have strayed from the correct approach. The passages quoted above vary slightly in phraseology, but it is clear to me that each of those courts — including the trial court in this case — in some fashion, albeit often rather abbreviated, effectively indicated its understanding and consideration of the proper question: Could a reasonable jury, on the basis of all the evidence before the judge, find clear and convincing proof of the publication of a defamatory falsehood with actual malice?

I am puzzled by the majority’s attraction to Guam Federation of Teachers, supra, as supposedly uniquely bearing the standard to be followed. That court stated in part:

The standard against which the evidence must be examined is that of New York Times and its progeny. But the manner in which the evidence is to be examined in the light of that standard is the same as in all other cases in which it is claimed that a case should not go to the jury. If the evidence, so considered, measures up to the New York Times standard, the case is one for the jury . . . . [ 492 F.2d at 441 (emphasis in original).]

I have tried unsuccessfully to find a meaningful difference between Judge Goodrich’s statement that the evidence (considered most favorably to the plaintiff) must establish with convincing clarity that the defendants acted with actual malice, and the Guam court’s directive that the evidence (considered most favorably to the plaintiff) must measure up to the New York Times standard. 2

I am well aware that some courts have expounded with greater precision upon the function they properly are performing. In Dacey v. Florida Bar, Inc., 427 F.2d 1292, 1296 (5th Cir. 1970), the court held:

[Defendant was entitled to a summary judgment because there are no issues of material facts in dispute and there is no evidence “which would permit a fact finder to conclude that the standard laid down by the Supreme Court had been met by the plaintiff.” McLaney [supra ], 406 F.2d at 573 .

The court in Guitar v. Westinghouse Electric Corp., 396 F.Supp. 1042, 1054 (S.D.N.Y.1975), aff’d, 538 F.2d 309 (2d Cir. 1976), dismissing on summary judgment, stated: “Here, no proof has been presented from which a jury could infer malice.” See also Dacey v. Connecticut Bar Association, 170 Conn. 520 , 368 A.2d 125, 136 (1976); Stone v. Essex County Newspapers, Inc., supra, 330 N.E.2d at 175 & n. 11 (1975); Airlie Foundation, Inc. v. Evening Star Newspaper Co., 337 F.Supp. 421, 423-24 (D.D.C.1972). There is simply no support for the proposition that these courts were doing something different — or even believed they were doing something different — than all the courts (including the Guam court) which have been somewhat less exact in their phraseology. 3 This conclusion is, of course, *63 buttressed by the several citations in the few cases which express the formula most succinctly to several of the cases which express it with less precision.

My basic point is simple. The majority has set forth upon an imprudent adventure to grapple with distinctions without difference, and offers as its bounty to this jurisdiction page after page of “illumination” which, as far as I can see, can only muddle what already was clear to the trial judge and, I submit, most others.

II

As I have noted, there is little dispute as to the proper function of the trial court at the summary judgment stage in a public figure libel case. 4 As the majority acknowledges, the hurdle a plaintiff must surmount to survive such a motion properly is a substantial one, in view of the obvious First Amendment ramifications attending the mere fact of such litigation. See Washington Post v. Keogh, 125 U.S.App.D.C. 32, 35 , 365 F.2d 965, 968 , cert. denied, 385 U.S. 1011 (1966); Guam Federation of Teachers, Local 1581 v. Ysrael, supra, at 441; Bon Air Hotel v. Time, Inc., supra, at 864-65; Buchanan v. Associated Press, supra, at 1205; Guitar v. Westinghouse, supra, at 1053-54. While it may well be inaccurate to say that the granting of summary judgment is “the ‘rule’, and not the exception, in defamation cases,” 5 Hutchinson v. Proxmire, supra, - U.S. at - n. 9, 99 S.Ct. at 2680 n. 9 (and text accompanying), it is clear that when a defendant in such a libel action moves for summary judgment on the ground (supported by affidavits) of lack of actual malice, a heavy burden rests upon the plaintiff to make an affirmative eviden-tiary showing that there is indeed a genuine issue of fact as to actual malice. See, e. g., Buchanan v. Associated Press, supra, at 1205.

In my view the trial court, despite what might be considered to be minor imperfections in phraseology, formulated and applied the appropriate standard and correctly granted both defendants’ summary judgment motions. Having studied the majority's lengthy discussion on summary judgment, I still readily endorse the trial judge’s well-reasoned approach to the matter. I can find little fault with the heart of his analysis:

[U]ncontroverted statements in the affidavit of defendant de Toledano clearly evince a reliance on the entire text of the report in the Congressional Record as support for the statements in the column. The good faith disclaimer is the only evidence produced by the plaintiff to impugn defendant’s repeated assertions in the record that he honestly believed in the accuracy of his characterization of the material in the Congressional Record (de Toledano’s affidavit and deposition).

The Court’s reading of the Congressional Record suggests that the single passage regarding the plaintiff’s “good faith” was more of a sugar coating for a bitter pill than an accurate reflection of the content of the report. Viewing the disclaimer in the context of the complete document, the most favorable inference which can be derived for the plaintiff is that de Toledano’s interpretation, although defensible, was mistaken.[ 6 ]

*64 I agree with the trial judge that the Supreme Court’s decision in Time, Inc. v. Pape, 401 U.S. 279 , 91 S.Ct. 633 , 38 L.Ed.2d 45 (1971), firmly supports — indeed mandates — the granting of summary judgment in Nader’s suit against de Toledano. In light of all the facts, I share Judge Goodrich’s belief that there is no jury-triable issue of actual malice in de Toledano’s published statement that:

[In his opposition to nuclear energy], Nader is being aided and abetted by Sen. Abraham Ribicoff, D-Conn., who not too long ago devoted some 250 devastating columns of the Congressional Record to demonstrate conclusively that Nader falsified and distorted evidence to make his case against the [Corvair].

Surely de Toledano’s interpretation of the whole of the staff report, as reflected by that statement, should be protected and privileged as a rationally defensible choice among a range of interpretive alternatives.

It is undisputed that de Toledano’s allegedly libelous assertion was based on his careful reading of the entire staff report. The assertion itself alludes to the full length of the report, and de Toledano in his deposition and affidavit (and in his brief on appeal) pointed to several specific portions of the report on which he relied. . He readily admitted to having read the staff’s brief statement of a belief in Nader’s good faith which prefaced the report. He stated, nevertheless, that he believed that Nader lied and deceived the public concerning the Corvair, and that such a belief was based on his reading of the whole report. See Time, Inc. v. Pape, supra, at 285, 289, 91 S.Ct. 633 . Additionally, it must be recognized that de Toledano asserted only that the staff report had demonstrated conclusively that Nader had “falsified and distorted evidence . . .” He did not say “Sen. Ribicoff stated that Nader had falsified and distorted evidence,” or anything of that nature. Had de Toleda-no attributed such words to Senator Ribi-coff, we might well have a different case.

Given all of the facts, I consider it to be an alarming affront to the principles of the First Amendment for the majority to direct that this case should proceed to a jury trial. Obviously, de Toledano’s showing in support of his motion was not per se dispositive, see St. Amant v. Thompson, 390 U.S. 727, 732 , 88 S.Ct. 1323 , 20 L.Ed.2d 262 (1968), and it was not taken as such by the trial court. However, to rebut that showing Nader could offer only the allegedly libelous statement itself and the staff members’ statement that “we believe [Nader’s original charges] were made in good faith.” (That statement, incidentally, falls considerably short of constituting a “finding,” as the majority repeatedly characterizes it.) I share the trial judge’s conviction that, viewing all the evidence in the light most favorable to Nader, he simply did not meet his burden of demonstrating that a jury reasonably could find clear and convincing proof of actual malice. Having studied the record, I see no error in Judge Goodrich’s conclusion that:

*65 [Viewing the disclaimer in the context of the complete document, the most favorable inference which can be derived for the plaintiff is that de Toledano’s interpretation, although defensible, is mistaken.

See Time, Inc. v. Pape, supra, at 290-92, 91 S.Ct. 633 . (A much less favorable inference which could have been drawn, for example, would be that de Toledano’s assertion was absolutely correct.) 7

In my judgment the majority has turned a blind eye to the true meaning of the Time, Inc. v. Pape decision. The majority narrows its focus to the Pape Court’s conclusion (based, of course, on the facts of that case) that “Time’s omission of the word ‘alleged’ amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities,” 401 U.S. at 290 , 91 S.Ct. at 639, and thereby too easily dismisses Pape’s true significance to this case. The foundation of the Pape decision was the Court’s recognition of the special susceptibility to libel suits of those who publish reports of what others have said or written, if such publishers could be found liable merely for possible errors of interpretation. See 401 U.S. at 285-86, 291 , 91 S.Ct. 633 . I quote from Pape:

New York Times was premised on a recognition that, as Madison put it, “Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press.” 4 J. Elliot’s Debates on the Federal Constitution 571 (1876). With respect to errors of fact in reporting events, we said in New York Times:

“A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgment virtually unlimited in amount — leads to * * * ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. * * * Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” 376 U.S., at 279 [, 84 S.Ct. 710, at 725 ].

These considerations apply with even greater force to the situation where the alleged libel consists in the claimed misinterpretation of the gist of a lengthy government document. . . [ 401 U.S. at 290-91 , 91 S.Ct. at 639-640.]

In short, Pape dictates a spirit of protectiveness in the area of secondary attributions (in order to insure that interpretive reporting is judged by the New York Times standard) which covers de Toledano’s predicament. Anything more than the most cursory (or one-sided) consideration of the complete staff report makes manifest its ambiguous tenor. To be sure, the ambiguity is of a different sort from that of the Civil Rights Commission’s report which was at the core of the dispute in Pape. The report in Pape (referring to several alleged instances of police brutality) was written from beginning to end in such a way as to support an interpretation that its authors believed the allegations to be true — notwithstanding the authors’ consistent inclusion of the word “alleged.” In comparison, the glaring ambiguity of the staff report in this case lies in the juxtaposition, on the one hand, of brief introductory remarks which include a sentence supportive of Nader’s good faith, and, on the other hand, the long and detailed body of the report (and the appended exchange of memoranda between Nader and the subcommittee) which — even *66 considered in a light favorable to Nader — in many places clearly supports de Toledano’s allegations, although stopping just short of saying so. I feel certain that the Pape Court would have ruled that de Toledano’s interpretive comment on what Senator Rib-icoff’s subcommittee’s staff report had demonstrated is not the stuff of a jury-tria-ble libel issue. I believe that Pape’s teachings should be dispositive here:

The deliberate choice of such an interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of “malice” under New York Times. [ 401 U.S. at 290 , 91 S.Ct. at 639.]

******

Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of “truth” that would not put the publisher virtually at the mercy of the unguided discretion of a jury. [Id., at 291, 91 S.Ct. at 640.]

See Dickey v. CBS, Inc., 583 F.2d 1221, 1226 (3d Cir. 1978); Hutchinson v. Proxmire, supra, 431 F.Supp. at 1329 ; Buchanan v. Associated Press, supra, at 1205; Airlie Foundation v. Evening Star Newspaper Co., supra, 337 F.Supp. at 424-25 .

It may be said, indeed, that the document de Toledano was faced with interpreting presented a greater problem than mere ambiguity. Specifically, the result the majority reaches today signals that a few introductory platitudes (in all likelihood motivated by a simple sense of political etiquette) prefacing an otherwise straightforward and hard-hitting official investigatory report subsequently may provide the justification for a libel suit. In other words, what may have been intended by the staff as a mere political shield effectively has been turned by the majority into a sword holding a response worthy of First Amendment protection at bay.

Cutting through the majority’s extended discussion, the ultimate basis for reversal appears to be the following statement in the majority opinion:

In short, we believe that the presence of the clause affirming appellant’s good faith advocacy, which is neither explicitly nor implicitly contradicted in the text of the report, effectively precludes a finding that, as a matter of law, an inference of falsification and distortion of evidence in order to generate controversy is a rational interpretation of the report. Hence, we do not think appellee’s statement is protected, as a matter of law, under the Pape doctrine. [Ante, at 53.]

Anyone familiar with the full text of the voluminous staff report readily would recognize the extent to which the majority opinion fails to characterize it accurately. Beyond that, I fear the basis for decision quoted above is likely not merely to have a chilling effect upon the expression of conflicting viewpoints on issues of vital public importance, see Washington Post Co. v. Keogh, supra, 125 U.S.App.D.C. at 35 , 365 F.2d at 968 ; it could drop an ice curtain around the exercise of journalistic freedom in interpreting congressional and similar governmental reports. It is particularly distressing to me that such a precedent is being set in the public information center of the United States, as the nation’s capital is the origin of a myriad of such reports.

The result which the trial court reached and which I would affirm as to defendant de Toledano would not mean that no public figure plaintiff could ever survive a motion for summary judgment. Several of the cases cited supra and in the majority opinion reflect the contrary. The burden a public figure libel plaintiff must meet to prevail on summary judgment is a heavy one. Nonetheless, there should be no shrinking from our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open . . . .” New York Times v. Sullivan, supra, 376 U.S. at 270 , 84 S.Ct. at 721 . The majority opinion itself includes a lengthy introductory discussion of First Amendment libel law, and appears to recognize the importance of such a body of law in assuring the continued unfettered exchange of ideas. To me, however, the existing standards are more than a set of abstract principles to be accorded lip-service and then ignored.

*67 The statement written by appellee de To-ledano by which appellant Nader feels aggrieved may well not be a model of clinical objectivity in reporting. However, it is virtually universally recognized that little in contemporary journalism is wholly free of some predisposition on the part of its author. That fact does not make what arguably may even be perceived as a gross inaccuracy actionable. Appellant Nader functions by choice in the public eye. He, as well as others across the full range of the political and philosophical spectrum, must accept certain inevitable consequences of so functioning. Judge (now Mr. Justice) STEVENS once aptly noted that:

Whether we are moved to applaud or to despise what is said, our duty to defend the right to speak remains the same. [Gerte v. Robert Welch, Inc., 471 F.2d 801, 808 (7th Cir. 1972), rev'd on other grounds, 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974).]

This basic precept bears constant reminder.

In concluding this statement of reasons why I would affirm both rulings of the trial court, I express my agreement with the words of Chief Judge Kaufman as written for the court in Edwards v. National Audubon Society, Inc., 556 F.2d 113, 122 (2d Cir. 1977):

[W]e believe that the interest of a public figure in the purity of his reputation cannot be allowed to obstruct that vital pulse of ideas and intelligence on which an informed and self-governing people depend. It is unfortunate that the exercise of liberties so precious as freedom of speech and of the press may sometimes do harm that the state is powerless to recompense: but this is the price that must be paid for the blessings of a democratic way of life.

. The standard as described by the majority is slightly camouflaged, in that the majority repeatedly (1) leaves out the word “reasonable” as it must be applied to a prospective jury in discussing the trial judge’s evaluation of what the jury may be permitted to consider, (2) emphasizes the words “could find” with reference to the jury’s role to imply, at least, some diminution of the trial judge’s role at the summary judgment stage, and (3) does not emphasize the necessity for a plaintiff to show “actual malice with convincing clarity” — inescapably the most vital part of the standard under New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964) — in an apparent attempt to subordinate that part of the test to a jury’s otherwise free rein to find malice where none has been shown to the requisite degree. These devices, apparently found useful by the majority in an effort to support its result, cannot alter the law; the proper standard must be considered in its totality.

. See also Alioto v. Cowles Communications, Inc., supra, which explicitly followed Guam. In Alioto , the Ninth Circuit stated in part:

A district judge on motion for judgment n. o. v., or an appellate judge on review, must examine the evidence to see whether, if all permissible inferences were drawn in the plaintiffs favor and all questions of credibility were resolved in his behalf, the evidence then would demonstrate by clear and convincing proof that the libelous material was published with actual malice. [ 519 F.2d at 780 .]

. Illustratively, in Time, Inc. v. Pape, 401 U.S. 279 , 91 S.Ct. 633 , 28 L.Ed.2d 45 (1971), the majority opinion contains the following language:

The deliberate choice of such an interpretation [of the article sub judice], though arguably reflecting a misconception, was not enough to create a jury issue of “malice” under New York Times. [Id., at 290, 91 S.Ct. at 639.]

The late Mr. Justice Harlan, disagreeing with the majority as to the role of an appellate court in a public figure libel case, stated in his dissent:

The step taken today, whereby this Court undertakes to judge, “on the specific facts of this case,” ante, at [292, 91 S.Ct. at 640,] whether a jury could reasonably find that *63 Time magazine’s characterization of the Commission’s Report was sufficiently inaccurate to permit the concomitant finding that it was published with “malice,” is, in my judgment, not warranted. [Id., at 293, 91 S.Ct. at 641.]

Nonetheless, in Time, Inc. v. Pape — which I consider to compel affirmance in this case— there is no hint that the majority and the dissenter differed at all as to the nature of the test to be applied by the trial judge.

.Appellant Nader does not dispute his status as a public figure. The recent Supreme Court decisions in Wolston v. Reader’s Digest Assn., Inc., supra, and Hutchinson v. Proxmire, supra, do not alter appellant’s status in this regard.

. See Guitar v. Westinghouse, - supra, 396 F.Supp. at 1053 ; Oliver v. Village Voice, Inc., supra, 417 F.Supp. at 237 .

. A brief explanation of the subject report would be useful. First, it was a staff report, prepared by two members of the staff of the Subcommittee on Executive Reorganization. It was not formally endorsed by any member of the Senate, but it was placed in the Congres *64 sional Record without objection by Senator Ri-bicoff. 119 Cong.Rec. S5870 (daily ed. Mar. 27, 1973). The report occupied more than 80 pages in the Congressional Record. Its substance was preceded by a two-paragraph summary. While the majority quotes that summary, it repeatedly exaggerates its import. Hence, I quote it again; it reads in full as follows:

For more than two and a half years, we have conducted an extensive investigation into Mr. Ralph Nader’s charges that statements of certain General Motors witnesses at the hearing of March 22, 1966, misled the Subcommittee on Executive Reorganization concerning the safety of the Corvair automobile. After consideration of all the relevant evidence, we have concluded that the subcommittee was not misled and hence there is no basis for reopening the hearings for further testimony on the stability and handling of the Corvair.

Although we have not upheld Mr. Nader’s charges against the Corvair and General Motors, we believe they were made in good faith based on the information available to him. After gathering all the evidence concerning them, we can understand how he reached the positions stated in his letters. The documents he cites provide some support for his views. However, we believe the clear preponderance of the evidence, much of which was unavailable to Mr. Nader, is on the other side.

. It might be said that the court gratuitously offered its implicit adherence to such a view when it spoke of the disclaimer, in the context of the whole report, as “a sugar coating for a bitter pill.” However, that expressive detour should not distract us from the validity of the trial court’s overall approach under the proper standard.