Petition — De Toledano v. Nader
Supreme Court brief1980
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were eee
Bupreme Cour, Uae)
FILED.
DEC 17 1979
CHABL ROBAK, JR., CLERN
In the —
Supreme Court of the United States
October Term, 1979
No.
79-9404
RautpH De Touepano,
Petitioner,
—against—
RatpH Naper,
Respondent.
eer re
|
PETITION FOR A WRIT OF CERTIORARI
TO THE DISTRICT OF COLUMBIA
COURT OF APPEALS
Epwarp J. Ennis
8 W. 40th St.
New York, N. Y. 10018
Currrorp Forster
1212 Ave. of the Americas
New York, N. Y. 10036
Counsel for Petitioner
TABLE OF CONTENTS
PAGE
IE ET ESS ii 1
EISELE TST 2
Finality of the Order Below .0..2..................c.sceececceseeeeeeeeeee 2
ES TELE 7
SSL LE 8
FEST ie 9
B. Nader’s Charges Against GM ......W...0.2.2.22..2..-- 10
C. Staff Report Conclusions .............2.22.......2..0c00-+- 11
D. Specific Nader Charges and Staff Report Re-
PROTO hoviciesnen EES 12
Ii. Subsequent Nader Charges and Staff Memo-
CE ES LED SED 14
F. Defendant de Toledano’s Column ...................... 16
Reasons for Granting the Writ -.........0.2.2...2.....eeeceeeeeee 18
I. The Decision Below Conflicts With Time v. Pape,
EE 18
II. Denial of Summary Judgment Effectively Denies
Petitioner Freedom of the Press .......................... 21
EER EEE SE GSES EEO 26
APpPpENDIxX—
ree en Gees On eOnS la
Petition for Stay of Mandate -...002 3a
Onder ef Reperser Geers .0000..:..................... 5a
Opinion of Court of Appeals -...0.......0.20.20..eeeeeeeeeeee 18a
ii
TABLE OF AUTHORITIES
Cases: PAGE
California v. Stewart, 384 U.S. 436, 498 (1966) ............ 2
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)
2, 4, 5, 6, 22, 25
Gertz v. Roberts Welch, Inc., 418 U.S. 322, 340 (1974)
5n, 21
Griffith v. Electrolux, Inc., 454 F. Supp. 29 (D.C. Va.,
MITT: snsericacsScchsidincidasetptionCistiantedeenctininambeahe cb tbe ti siiek Dincasess 25
Guttar v. Western Electric Corp., 396 F. Supp. 1042
EERE Dhe Ruy SVED ccckenicnnness Sie eaac atin ies seeo cee slanepoamiess 24, 25
Herbert v. Lando, U.S. ——, 60 L.Ed. 115 (1979) 9
Hutchinson v. Proxmire, 431 F. Supp. 1311, rev. ——
Ue sm, GE De, GEE CRG TO) nnn csi tccceee 24
Meerpol v. Nizer, 381 F. Supp. 29 (S.D. N.Y.), aff’d
in part 560 F. 2d 1061 (C.A. 2), cert. den. 434 U.S.
WE SO iscas rhe titaedcstes ntact tninabiednenacehidiiancend motel 22, 23
Miami Herald Publicity Co. v. Tornillo, 418 U.S. 241
NN Sait escacnlaciastletirrnicisapatlaiiies ad endlabaginsss Sacsnircibio 2, 4, 5, 22, 25
Mills v. Alabama, 384 U.S. 214 (1966) 0000. 2
New York Times v. Sullivan, 376 U.S. 254 (1964) ........24, 25
Oliver v. Village Voice, Inc., 417 F. Supp. 235 (S.D.,
PRA SUED seiaticiccc nditignparsolcianaecmamdeadosmletccass dass 24, 25
Pernell v. Southall Reader, 416 U.S. 363, 367 (1974).... 2n
South Dakota State Board of Pharmacy v. Snyder’s
Drug Stores, 414 U.S. 156 (1973)
Sutherland v. Forbes, 585 F. 2d 145 (C.A. 8,.1979)...... 24
iii
The Village Voice v. Rinaldi, 423 U.S. 383 (1975).......... 6n
Thompson v. Evening Star Newspaper Co., 394 F. 2d
774 (C.A.D.C.) cert. den. 393 U.S. 884 ........................ 22
Time v. Pape, 401 U.S. 279 (1971) ........ 5, 7, 18, 19, 20, 21, 26
Tigue v. Swain, 585 F. 2d 909 (C.A. 8, 1978) ....00............ 25
Walston v. Readers Digest, 429 F. Supp. 167 (D.C.
Va.) aff'd 578 F. 2d 427 (C.A., D.C.) rev. —— US.
——, 61 L.Ed. 450 (1979) ........0020002..... 25
Washmgton Post Co. v. Keogh, 365 F. 2d 965 (C.A.,
Beh RR NB is I icnicin sin censnsivnsingasentasaiisies 22
Statutes Cited:
er IT CP kin ints een 2
28 U.S.C. 1257 (Pub. L. 91-358, 172 (a)(1)), 84 Stat.
BOR RMS ESSERE. SRL Re ON el ee RUE ne PMT Le cE 2n
Miscellaneous:
Brennan, “The Symbiosis Between the Press and the
Court,” National Law Journal October 29, 1979, p.
; Beas asetcacaacecsaiiac acai ian eliebasiencsendenins 24n
Green, “Political Freedom of the Press and Libel
Problems,” 56 Texas Law Review 341 (1978) .......... 23n
Kalven, “The New York Times Case: A Note on the
Central Meaning of the First Amendment,” 1964
Sup. Ct. Rev. 191 .. iin 23n
Kovner, “Disturbing Trends in the Law of Defamation:
A Publishing Attorney’s Opinion,” 3 Hastings Con-
stitutional Law Quarterly 363 (1976) .. -é .. 23n
Rosenbloom, “The New Law of Political Libel: A His-
torical Prospective,” 28 Rutgers University Law
Review, 1141-1183 (1975)
iv
PAGE
Cwil Procedure—New Insight on Finality of State
Court Proceedings, Arizona State Law Journal 1975
p. 626 a as
The Finality Rule for Supreme Court Review of State
Orders, 91 Harvard Law Review 1004 (1978) ............ 2
Ralph De Toledano “Hit and Run, The Rise and Fall
of Ralph Nader” 9,16
Barrons, March 25, 1974 ........... j 17
In the
Supreme Court of the Wuited States
October Term, 1979
No.
Rautpxo De To.iepano,
Petitioner,
—against—
RaupH Naver,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE DISTRICT OF COLUMBIA
COURT OF APPEALS
Petitioner prays that a writ of certiorari issue to the
District of Columbia Court of Appeals to review a judg-
ment of that Court entered on July 31, 1979; rehearing was
denied on September 26, 1979. (App. p. 1a)
Opinion Below
The opinion of the District of Columbia Court of Appeals
(App. pp. 18a-93a) is not officially reported. By vote of 2 to
1, the Court reversed the decision of the Superior Court of
the District of Columbia (App. pp. 5a-17a), not officially re-
ported, in an action for libel brought by consumer advocate
Ralph Nader against Ralph De Toledano, a journalist, and
Copley Press, Inc., syndicator of his column granting sum-
mary judgment to petitioner. It, however, affirmed summary
judgment granted to defendant below, Copley Press, Ine.
Judge Harris below, dissented from the reversal of sum-
2
mary judgment granted to petitioner and concurred in the
judgment affirming summary judgment granted to Copley
Press, Inc.
Jurisdiction
The District of Columbia Court of Appeals reversal of
the Superior Court summary judgment was entered on July
31, 1979. On September 26, 1979, petitioner’s application
for rehearing and rehearing in banc was denied (App. p.
la). On October 1, 1979, mandate was stayed for 90 days
from September 26 for filing of Petition for Certiorari in
this Court (App. p. 3a). Jurisdiction is invoked under 28
U.S.C. §1257 (3).?
Finality of the Order Below
A. The judgment of the court below reversing summary
judgment for petitioner is a final judgment of which this
Court has appellate jurisdiction. Cox Broadcasting Corp.
v. Cohn, 420 U.S. 469 (1975); Miami Herald Publicity Co.
v. Tornillo, 418 U.S. 241 (1974) ; South Dakota State Board
of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156 (1973) ;
California v. Stewart, 384 U.S. 436, 498 (1966); Mills v.
Alabama, 384 U.S. 214 (1966); ef. The Finality Rule for
Supreme Court Review of State Orders, 91 Harvard Law
Review 1004 (1978) ; Civil Procedure—New Insight on F%i-
nality of State Court Proceedings, Arizona State Law
Journal 1975 p. 626.
The Court below reversed summary judgment solely on
the ground that the short prefatory statement in the Staff
Report (R. 406) to the Senate Subcommittee, to the effect
1 The District of Columbia Court Reform and Criminal Proce-
dure Act of 1970 (Pub. L. 91-358, §172(a) (1), 84 Stat. 590) pro-
vides that the “highest: Court of the State” in 28 U.S.C. §1257
includes the District of Columbia Court of Appeals. cf. Pernell v.
Southall Realty, 416 U.S. 363, 367 (1974).
3
that plaintiff Nader acted in “good faith” in making his
charges, raised a factual issue of actual malice (App. p.
63a), even though petitioner made it clear that he relied on
the Whole Report in the Congressional Record (R. 466-
523) which rejected plaintiff’s charges as not supported by
the evidence and included two Staff Memoranda, dated
March 12 and 27, 1973 prepared (R. 485, 525) after com-
pletion of the Staff Report. These Memoranda are not
limited by the prefatory exoneration in the Staff Report
and rejected Nader’s contentions about preparation of the
Report without any such limitation as “simply not true”
(R. 485), “this is also not true” (R. 485) and “Exactly the
opposite is true” (R. 485, S. 6058, 6098).
The trial court Judge correctly stated that the Staff
Report’s single passage about Plaintiff’s “good faith” was
“more of a sugar coating of a bitter pill than an actual
reflection of the content of the Report” (App. p. 10a).
Judge Harris, dissenting below, agreed that the decision
of the majority of the court below “repeatedly exagger-
ated” the import of the Staff Report’s prefatory statement
of plaintiff’s good faith before proceeding to reject all of
his charges as unfounded (App. p. 86a).
There is thus presented the important federal question
whether petitioner journalist’s First Amendment rights to
evaluate a public government document’s rejection of re-
spondent public figure’s contentions on a matter of general
public interest can be nullified by a gratuitous prefatory
statement in the document about the public figure’s “good
faith” in making his rejected charges. On the issue of
defendant’s actual malice, the defendant’s good faith in
evaluating the Staff Report is the issue and not plaintiff’s
good faith in making the rejected charges, The very center
and core of free press rights and effective constitutional
protection is involved because of the subject matter, eval-
4
uation of a public government document on a matter of
public interest, and also the characteristics of the plaintiff
as a public figure and of the defendant (petitioner) as a
journalist. Other situations, including different subject
matter, such as commercial free speech of varying kinds,
or different parties, such as private figure plaintiffs or
individual figure defendants not members of the press, may
invoke somewhat less judicial protection under the First
Amendment. The present case, however, requires max-
imum First Amendment constitutional protection by treat-
ing the reversal of summary judgment as a statutory final
judgment.
If the reversed summary judgment is not restored now,
the identical evidence, essentially the Staff Report and at-
tached letters and memoranda, will again be presented to
the trial court and possibly a jury to determine the same
question presented here, viz: whether the prefatory state-
ment to part of the material in the Congressional Record
alone is clear and convincing evidence of actual malice
sufficient to support a verdict for plaintiff when petitioner’s
evidence is undisputed that his evaluation of the Report
and the alleged libelous statement were based on a study
of the entire Congressional Report. Thus, the decision
below is final and available for review.
Both Coz and Fornillo, supra, as here, included restrie-
tions on free press reviewed over objections to the Court’s
jurisdiction. The Coz case involved review by this Court
of a reversal of summary judgment for plaintiff remanding
the case for trial where such review could finally deter-
mine the litigation and a denial of such review would leave
the press operating under the shadow of uncertain condi-
tions. In Coz, the civil sanction of denial of review by this
Court was probably only a short trial of a claim of inva-
sion of privacy by the press. But here, in the absence of
4)
summary judgment on the undisputed facts, the oppressive
civil sanction of a long expensive trial faces the petitioner
individual journalist. Such a trial involves analysis of the
extensive evidence gathered in the two and one-half year
investigation preceding the Staff Report rejecting plain-
tiff’s charges and also probably involves extensive engi-
neering expert investigation and testimony on the relation-
ship between the numerous charges and the voluminous
evidence, an herculean and costly task.’
In Tornillo, the Supreme Court of Florida reversed dis-
missal of a suit under the Florida statute giving a candi-
date for public office a right of equal space to reply to
criticism by a newspaper and remanded the case for trial.
The Court granted review and stated (418 U.S. at 247, n.6)
“it would be intolerable to leave unanswered under these
circumstances an important question of freedom of the
press under the First Amendment.” In Coz (420 US.
484-5) this Court quoted with approval the above statement
from Tornillo.
Here also review is equally required in order to answer
important questions of freedom of the press which are (1)
application of Time v. Pape, 401 U.S. 279 (1971) to this
case, and (2) the necessary availability of summary judg-
ment to the press to determine the presence or absence of
clear and convincing evidence of actual malice.
This case lacks the complication of other wholly separate
issues, additional to the issue sought to be reviewed, which
were present in some of the cases cited at page 2, supra,
?This Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 340
(1974) significantly held:
“Our decisions recognize that a rule of strict liability that
compels a publisher or broadcaster to guarantee the accuracy
of his factual assertions may lead to intolerable self-censorship.
Allowing the media to avoid liability only by proving the
truth of all injurious statements does not accord adequate pro-
tection to First Amendment liberties.” (emphasis ours)
= < Pe oe” J
6
in which review was nevertheless granted.’ Here, the
simple issue is whether the Staff Report’s prefatory “sugar
coating of a bitter pill” exoneration of Nader of bad faith,
supplies the necessary clear and convincing proof of actual
malice.*
It is also significant that determination of the finality
of the judgment of the District of Columbia Court of Ap-
peals does not involve the considerations of federalism
and comity applicable to review of state court judgments.
Cox Broadcasting Corp. v. Cohn, 420 U.S. 503-505 (Rehn-
quist, J. dissenting).
B. The reversal below of the trial court’s summary
judgment satisfies for purposes of finality and consequent
review by this Court at least three of the four categories
of remedial final judgments set forth in Cox Broadcasting
Corp. v. Cohn, supra pp. 479-481. They are 1) practical
finality, 2) survivable federal claims,‘ and 3) important
federal rights. On this latter ground alone the order of
the court below shall be determined final for review by this
Court.
We submit that Associate Judge Harris in his dissenting
opinion below (App. pp. 75a-93a) underlines the character
* This case is distinguishable from The Village Voice v. Rinaldi,
423 U.S. 883 (1975) in which reversal of summary judgment was
deemed not a final order because that case involved not only an-
other cause of action for invasion of privacy under a state statute,
but also the freedom of press issue involved was the undetermined
extent of freedom of commercial advertising and not the limited
issued here presented.
‘It is true that a jury might be charged that if it found actual
malice it should then consider whether the alleged libelous state-
ment, that plaintiff falsified and distorted the evidence, was in
fact true and therefore not actionable. But this separate and-sub-
sequent issue would arise only after a determination of the con-
stitutional issue of actual malice and its secondary presence is not
sufficient to destroy the finality of the principal issue.
7
of the decision below as an unsettling impediment to free-
dom of the press.
“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, at 35, 365 F. 2d at 968, it could drop an ice
curtain around the exercise of journalistic freedom in
interpreting impressional and similar governmental
reports. It is particularly distressing to one that such
a precedent is being set in the public information cen-
ter of the United States, as the nation’s capital is the
origin of a myriad of such reports”.
Therefore petitioner respectfully urges the Court to
determine that the judgment below reversing summary
judgment is final and reviewable by this Court.*
Questions Presented
1. Whether the decision below in direct conflict with
Time v. Pape, 401 U.S. 279 (1971) (as the dissenting opin-
ion correctly states) rai.es an important question which
should be decided because it creates confusion and uncer-
tainty about the important judicial rule to be applied in
the District of Columbia, the foremost forum for discus-
sion of federal governmental documents, to determine
whether a journalist’s “adoption of one of a number of
possible rational interpretations” (401 U.S. at 290) of a
5 Where as here discretionary certiorari review of denial of
summary judgment is sought, the reasons for granting the writ,
infra, pp. 18 et. seq., also support the determination that the judg-
ment below is final under the criteria discussed in Cox and other
cases cited.
8
government document was enough to create a jury issue
of “actual malice”.
2. Whether the decision below reversing summary judg-
ment raises an important question which should be decided
by this Court of the scope and correct application of that
essential remedy for defendant journalists charged by pub-
lic figures with “actual malice” in evaluating public docu-
ments.
Statement of the Case
The pleadings, pre-trial examinations of plaintiff Ralph
Nader (hereinafter sometimes “Nader”) and defendant
Ralph de Toledano (hereinafter sometimes “de Toledano”),
affidavits, and the Staff Report to the Senate Subcommittee
on Executive Reorganization (hereinafter called the Staff
Report)* and Exhibits and Attachments II to VI to the
Staff Report printed in the Congressional Record of March
27 and 28, 1973 (hereinafter called the Whole Report)
set forth all the evidence on the main question presented.
This question is whether the alleged libel, that the docu-
ments published in the Congressional Record as the Whole
Report “demonstrated conclusively that Nader falsified
and distorted evidence to make his case against the [Cor-
vair] automobile”, was one of a number of possible rational
interpretations of that public document or was, as Nader
asserts, a false statement made with actual malice. There
is no suggestion that any additional evidence, not avail-
* The Staff Report and exhibits and attachments occupy 120
pages of the Congressional Record of March 27 and 28, 1973 (pages
S. 5870-5903 and S. 6013-6099) and are marked R. 406-523 in the
record below. References herein are to both the record below and
the pages of the Congressional Record. Ten copies of the Con-
gressional Record containing the Staff Report and Exhibits and
Attachments have been filed with the Clerk.
9
able on de Toledano’s motion for summary judgment
would be available on a trial. Indeed, at de Toledano’s
pre-trial deposition his state of mind was probed at length
as to his intentions in respect of his article on Nader (R.
38-47). See Herbert v. Lando, —— U.S. ——, 60 L.Ed. 115
(1979).
Petitioner testified that he had read the “whole report”
several times in writing his book Hit and Run, The Rise
and Fall of Ralph Nader (1975) and before writing the
newspaper column containing the alleged libel. (R. 36).
He also testified to his belief that the report as a whole
and numerous instances in the Staff Report proper and
in the subsequent staff memoranda included in the Whole
Report respecting Nader’s contentions as “this is not true”
and “Exactly the opposite is true” (R. 485 S. 6058) demon-
strated that Nader falsified and distorted the evidence.
The question is essentially whether the rejection of all of
the numerous contentions of Nader by the Staff Report
itself and the two subsequent Staff Memoranda printed
in the Whole Report in the Congressional Record with the
Staff Report is subject to the rational interpretation that it
demonstrated Nader’s falsification and distortion of the
evidence supporting the rejected contentions. A summary
of the evidence follows:
A. The 1966 Hearing On March 22, 1966 the Senate
Subcommittee on Executive Reorganization held hearings
on General Motors Corporation’s ((hereinafter “@QM’’)
investigation and surveillance of Nader who in 1965 had
published a book “Unsafe At Any Speed”. The book criti-
cized many alleged unsafe aspects of automobiles and in
particular one GM Chevrolet Model, the 1960-1963 Corvair,
which was charged to be dangerously unstable and liable
to roll over. Evidence for and against safety of the Corvair
—
— ae ae
10
was received at the hearing but the Subcommittee reported
(S. Rept. 951, 90th Cong. 2d Sess. 1968) that the Subcom-
mittee was not the proper forum for the subject and it
reached no conclusions on the matter (R. 406, S. 5870).
B. Nader’s Charges Against GM On September 4, 1970
Nader wrote Sen: tor Ribicoff, Chairman of the said Sen-
ate Subcommittee, charging that at the March 22, 1966
hearing GM’s President Roche had offered documents con-
taining statements “seriously misleading and consciously
erroneous” and requested that GM be required to explain
(R. 482-3, S. 5896-7). On that date Nader also wrote
Secretary of Transportation Volpe, copy to Senator Ribi-
coff, charging among other things a “labyrinthic and sys-
tematic intra-company collusion including high General
Motors officials” to suppress data and films proving the
Corvair dangerously unstable, and that “GM officials
launched a policy of falsely stating that the Corvair did
not behave differently from any other American car...
demanded or condoned unethical behavior by its lawyers
and engineers .. . [and] spared no expense to perpetuate
false defense strategies in courts .. .” (R. 433, S. 5897)
On September 14th Ribicoff replied to Nader that he had
requested relevant material from GM and he asked Nader
to provide any information in his possession (R. 434, S.
5898). On October 23, 1970 (R. 434, S. 5898) and May 20,
1971 (R. 438, S. 5902) Nader sent Senator Ribicoff long
letters detailing his charges and contentions.
In response to Nader’s request to Secretary Volpe, the
Department of Transportation (hereinafter “DOT”) con-
ducted extensive performance tests of the 1962 Corvair
and other contemporary cars (including Ford Falcon,
Volkswagon, Renault and Valiant) and concluded in July
1972 that the Corvair stability “was at least as good as”
11
the other vehicles tested (R. 406, S. 5807). The Staff
Report summarizes DOT’s evaluation (R. 406-8, S. 5870-2).
C. Staff Report Conclusions The Staff Report (R. 406-
421, S. 5875-5988) and Exhibits 1-35 (R. 421-484, S. 5885-
6057) and Attachments II to VI including Staff Memo-
randa (R. 454-525, S. 6057-6098) deal exhaustively with
Nader’s charges. The Staff Report concludes that the
Committee was not misled at the March 22, 1966 hearing
and there was no basis for further hearings (R. 406, S.
5870). The Report also contains a gratuitous prefatory
statement of a belief that Nader’s charges were made in
good faith on the basis of information available to him
but concluded that a preponderance of the evidence was
on the other side.? Some of the Staff’s conclusions at the
end of its Report are: (R. 421, S. 5885).°
1. At the March 22, 1966 hearing the Subcommittee was
not misled by testimony of GM witnesses.
2. GM did not engage in fraud or deceit in the Ander-
son, Collins or other cases in which GM was sued for
accidents in Corvairs.
3. No other matter alleged by Nader warranted further
investigation.
7 As we have pointed out above, pp. 2-3, supra, this “good faith”
declaration is the sole ground upon which the court below held
that the issue of malice should be determined by a jury after a
plenary trial. It is however limited to the Staff remarks at the
beginning of the Report and does not cover the Supplemental Staff
Memoranda prepared after the Report which are critical in this
ease. See pp. 14-15, infra.
8 There are at least a dozen Nader charges which are dealt with
and refuted by the staff. We do not wish to burden the Court
now with more than a few examples.
12
4. No factual basis was found for Nader’s widely re-
ported allegations against GM Engineer, Frank Winchell
whose statements were accurate and honest.
D. Specific Nader Charges and Staff Report Rejections
A comparison of some of Nader’s charges and the Staff
Report’s conclusions are:
1. Nader charged that DOT “dismissed” Professor
Campbell’s data, but the Staff Report noted that the DOT
Report discussed the Campbell data and explained why
DOT declined to draw any specific conclusion from them
(R. 407, S. 5871).
2. Nader charged that GM attempted “to hide from the
courts and even from their own defense witnesses reports
such as PG (proving ground) 15699 and 17103 critical of
the Corvair’s safety”. But the Staff Report points out
that at the time of the hearing on March 22, 1966 only
the Anderson and Collins cases against GM involving Cor-
vair safety had been tried and required production re-
ports in existence before April 19, 1963 and that PG
Reports 15699 and 17103 were issued thereafter (R. 409,
S. 5873). Moreover the Report noted that these reports
were provided in the later Franklin case and determined
“we could find no evidence that any document contained
in it [the so called hot document file] was unlawfully
withheld from a plaintiff in a lawsuit”. (R. 409, S. 5873).
The Staff Report also notes that Nader’s contentions of
suppression of records were rejected by the court in the
Drummond case and by the Michigan State Bar Associa-
tion on a charge of misconduct by GM attorneys (R. 409,
S. 5873).
3. Nader charged GM Engineer Frank Winchell with
“gntruthful answers” in testimony in the Anderson case
13
and four instances of false testimony in the Collins case
(R. 409-10, S. 5873-4). The Staff Report on examination
of the evidence rejected each and all of these charges (R.
409-10, S. 5873-4) stating “Nader’s accusations against
Frank Winchell are unjustified” (R. 421, S. 5885) as well
as the additional charges (a) that Winchell’s Michigan
Senate statement was untrue in respect of the proximity
of the Corvair wheel rim to the pavement when the car
is sliding sideways (R. 411, S. 5875) and (b) that Win-
chell’s testimony in the Anderson and Collins cases ex-
plaining the testimony of Maurice Olley, “a highly re-
spected GM suspension engineer”, was “deceptive and
misleading” (R. 411, S. 5875).
The Staff Report summed up its findings rejecting
Nader’s numerous charges with the following conclusions
in part (R. 421, S. 5885):
“1, The Subcommittee on Executive Reorganization
was not misled by the testimony of GM witnesses
concerning the stability and handling of the Corvair
at the hearing on March 22, 1976... We were unable
to find any evidence that they negligently or willfully
failed to consider any documents or information which
would have led a reasonably prudent executive to a
contrary decision.
“9. GM did not engage in any fraud or deceit in its
conduct of the Anderson, Collins and other cases we
reviewed.
“3. None of the other matters alleged by Nader war-
rant further investigation by the subcommittee or re-
opening of hearings...
“4. Nader’s accusations against Frank Winchell are un-
justified. Winchell bore the brunt of Nader’s charges
14
in the letters of October 23, 1970, and July 8, 1971,
both of which were publicly released and widely re-
ported. Accordingly, we believe it is appropriate to
state for the record that we could find no factful basis
for Nader’s allegations. So far as we could determine,
in his testimony in court and interviews with us, Win-
chell’s statements were accurate and honest to the best
of his knowledge and ability.” (R. 421, S. 5885)
K. Subsequent Nader Charges and Staff Memoranda
Nader wrote a letter dated March 12, 1973 to Senator
Ribicoff charging “GM has had highly preferential treat-
ment in the conduct of this [Staff] Inquiry” and other
irregularities in the conduct of the investigation (R. 484,
S. 6057). The Staff responded by a memorandum also dated
March 12, 1973 (R. 485, S. 6058), which included the fol-
lowing observations asserting falsifications by Nader:
“Nader alleges that the statements of non-GM witnesses
‘were routinely given to GM for rebuttal, but there was
no opportunity for such witnesses to comment on GM’s
rebuttal ...’ This is simply not true.” (R. 485, S.
6058) (Emphasis ours)
and
“Nader asserts that only GM has had access to the work
product of the investigation. This also is untrue.” (R.
485, S. 6058) (Emphasis ours)
and
“Finally, Nader contends that Bob Wager shared no
interest in receiving his comments on the DOT reply to
Nader’s critique of the DOT report. Exactly the oppo-
site is true.” (R. 485, 8. 6058) (Emphasis ours)
15
Thereafter, on March 26, 1973, Nader wrote yet another
letter to Senator Ribicoff responding to the Staff Report
and enclosing a long memorandum and Exhibits A to R
(R. 485-525, S. 6058-6098). The Staff responded by a memo-
randum to Senator Ribicoff dated March 27, 1973 (R. 525-6,
S. 6058-9) which contained the following findings and con-
clusions:
“The basic question has been whether GM knew, or had
reason to know, that the 1960-63 Corvair was unsafe
when its representatives testified before the Subcom-
mittee on March 22, 1966. We found the answer to
that question to be ‘no’ and nothing in the material
presented since then changes that answer.
“As we said in the report, ‘we found no corroborated
evidence that any engineer, lawyer, or executive with-
in GM thought that the Corvair was unsafe at the
time it was developed and produced,’ Nader does not
offer any evidence or argument refuting that point
... Instead he appears to argue that the corporation
clearly should have known that the Corvair was un-
safe even if they did not think it was. Here too, the
evidence is agamst Nader”. (R. 525, S. 6058) (Empha-
sis ours)
* * *
“In summary, Nader’s memorandum simply repeats
most of the arguments he had previously made in his
letters and discussions with us. It contains no sig-
nificant new facts or documents. Accordingly, we ad-
here to the conclusions and recommendations stated
in our report.”
Thereafter, Senator Ribicoff determined, and so advised
Nader, that there was “no reason to hold any further
hearings on this matter” (R. 406, S. 5870). Also on March
16
27, Senator Ribicoff wrote a further letter to Nader (R.
525, S. 6098) responding to plaintiff’s March 26 letter
which had criticized the Staff Report. In that letter, Sena-
tor Ribicoff stated:
“ .. I have reviewed your documents and find no basis
for altering my previous judgment concerning the
report, As I said to you in my letter on March 14,
1973, I believe the staff study was conducted in a fair
and impartial manner, I have complete confidence in
the integrity of my staff and concur in the decision
not to release the contents of the investigative files
...” (R. 525, S. 6058) (Emphasis ours)
F. Defendant de Toledano’s Column Defendant de To-
ledano wrote the newspaper column in question during
January, 1975 (R. 530). He had never met Nader nor
talked to him on the telephone nor corresponded with him
(R. 24). He had written a book entitled “Hit and Run, The
Rise and Fall of Ralph Nader,” for which he performed
research for some six months and used the Staff Report
and Attachments in the Congressional Record for March
27 and 28, 1973, as source material. In fact, prior to writ-
ing the column, defendant de Toledano re-read the Con-
gressional Record a number of times (R. 36).
Defendant de Toledano also testified in his pre-trial
examination (R. 48-49) that he had also read an article pub-
lished on September 24, 1973, in Barrons, the prestigious
financial weekly, in which its editor, Robert Bleiberg, made
the following statement:
“As dispassionate critics and former friends (notably
Sen. Ribicoff who effectively gave him his start) have
come to conclude, Mr. Nader time and again has re-
sorted to exaggeration, distortion and what from
ee ee NS RE
17
others would long since have heen accurately branded
the ‘big lie-—notably about General Motors’ Corvair,
which, long after its Nader-mspired demise, has be-
latedly been certified as safe at any speed” (R. 405,
532). (Emphasis ours)
Defendant de Toledano had also read (R. 532-533) a reply
to the Bleiberg article by Mr. Nader in which he disputed
some minor matters, but which made no mention of the
“big lie’ statement. The Nader answer appeared in the
March 25, 1974, issue of Barrons on the same page as a
second commentary by Mr. Bleiberg which repeated much
of the paragraph set forth above (R. 532-533).
It was with this background and in this context that
defendant de Toledano, in a newspaper column describing
Nader’s attacks on the nuclear energy industry, wrote the
following allegedly libelous statement:
“In this endeavor, Nader is being aided and abetted by
Sen. Abraham Ribicoff, D-Conn., who not too long ago
devoted some 250 devastating columns of the Congres-
sional Record to demonstrate conclusively that Nader
falsified and distorted evidence to make his case
against the automobile.”
Thereafter, Nader filed the instant suit against de To-
ledano and his distributor, Copley Press, for defamation
seeking compensatory and punitive damages. Motions of
both defendants for summary judgment were granted by
the Superior Court (App. pp. 16a-17a). The judgment for
Copley Press was affirmed but the summary judgment for
de Toledano was reversed by the Court of Appeals, Judge
Harris dissenting (App. p. 73a).
18
Reasons for Granting the Writ
This petition raises important questions of the scope of
the constitutional freedom of the press to evaluate public
documents of general public interest as being critical of
public figures. The decision below seriously impairs that
freedom by departing from the constitutionally required
standard of clear and convincing proof of actual malice
and by so doing burdens the press, in this case an indi-
vidual journalist, with always expensive and often frivo-
lous suits by public figures seeking to silence their critics.
The Decision Below Conflicts With Time vy. Pape,
401 U.S. 279 (1971).
Both the dissenting opinion in the court below (App.
p. 75a) and the trial court’s decision (App. p. 5a) cor-
rectly held that the Pape decision in this Court mandates
granting summary judgment to de Toledano in this case.
In Pape, as here, the trial court granted summary judg-
ment and the Court of Appeals reversed and remanded
the case for a trial. The question to be tried in Pape was
whether actual malice was shown by Time’s failure to make
clear that it was reporting allegations rather than the facts
of police brutality discussed in a report of the United
States Commission on Civil Rights. The trial court di-
rected a verdict for defendant but the Court of Appeals
again reversed holding that it was for the jury to decide
whether Time’s omission of the word “alleged” in its report
showed “actual malice”. This Court reversed holding that
defendant’s “adoption of one of a number of possible ra-
tional interpretations” of an ambiguous public document,
ee —
19
even though arguably a misconception, was not enough to
create a jury issue of “malice” (401 U.S. at 290).
A fortiori, in this case defendant’s evaluation of the
Staff Report and Attachments, the entire text of the Whole
Report in the Congressional Record (App. p. 56a), was one
rational interpretation of the public documents. The Staff
Report completely rejecting Nader’s charges was a “bitter
pill” despite the “sugar coating” of the politic prefatory
statement of Nader’s “good faith” at the beginning of the
Report.
The prefatory exculpatory rubric was much less a limita-
tion of the Staff Report’s rejection of Nader’s charges
than the stark “alleged” qualification of the recital of police
brutality in the Civil Rights Commission’s Report.
In addition the two staff memoranda of March 12 and
March 27, 1973 following the Staff Report and not limited
by its prefatory exculpation rejected Nader’s additional
charges as “simply not true’, “also untrue” and “Exactly
the opposite is true” (R. 485, 8. 6058) and directly support-
ed defendant’s evaluation of the Report and Attachments as
showing that Nader “falsified and distorted the evidence”.
Applying the rule of Pape the plaintiff presented no ev-
idence of clear and convincing proof on which a jury could
lawfully find “actual malice” and warranting the reversal
of summary judgment for defendant.
Now, after the law has been decided in Pape, defendant
journalist in a case controlled by Pape should not be
relegated to the burden of a motion for directed verdict
after tria! of the issue of “actual malice” and perhaps also
a trial of the separate issue of truth of the alleged libel.
The jury should not be allowed to decide, as the court be-
low stated, that the Staff Report’s prefatory exculpatory
statement is clear and convincing evidence sufficient to find
an ET LM ee MERE NE A TT TT MN Me EN) tent th ae ae A ene a MEM TET
20
“actual malice”. This Court should determine that the
prefatory exculpatory statement here, like the limitation
of “alleged” in Pape, is not sufficient to send the case to
trial and a jury on the issue of malice.
In developing the rule in Pape it was necessary to have
the two appeals, the first, as here, reversing defendant’s
summary judgment, and then the second appeal after trial
reversing defendant’s directed verdict finally reviewed and
corrected by this Court. The trial in Pape included ev-
idence on behalf of the plaintiff police officer that the al-
lege) brutality did not in fact occur (although the alleged
victim of the brutality in a separate action obtained a jury
award of $8,000 against the police officer). This Court,
however, in its opinion based its decision not on this
evidence but solely on the ground that the Civil Rights
Commission’s Report was fairly subject to Time’s interpre-
tation which, even though arguably misconceived, was not
sufficient evidence of “malice” to create a jury issue,
The individual journalist here, lacking Time’s resources,
should not be relegated to a repetition of such costly pro-
cedure in a case where the Pape rule is so clearly applicable
and decision should be based solely on the Staff Report and
Attachments and not on evidence at the trial including
evidence of truth of the alleged libel.
The requirement of a trial by the court below deprives
defendant of the protection of the constitutional rule an-
nounced in Pape and forces him at his peril, despite the
decision below as the law of the case, either to rely on the
defense that the prefatory statement is not clear and con-
vineing proof of actual malice or to tender the additional
and costly issue of truth of his statement that the Staff
Report and Attachments demonstrated that plaintiff falsi-
fied and distorted the evidence. Trial of this issue would
21
require extensive investigation and testimony by engineer-
ing experts appraising the voluminous evidence produced
in the two and one half year investigation preceding the
Staff Report to determine whether the Staff Report in fact
demonstrated Nader’s falsification and distortion of ev-
idence. The great expense of this defense might force
defendant, an individual journalist of limited financial
means, to waive this defense of truth. This Court recog-
nized in Pape (401 U.S. at 290-1) quoting in part from
New York Times Co. v. Sullivan “the difficulties of adduc-
ing legal proof that the alleged libel was true in all its
factual particulars. These considerations apply with even
greater force to the situation where the alleged libel con-
sists in the claimed misinterpretation of the gist of a
lengthy government document”. See Gertz v. Robert Welch
Inc., 418 U.S, 323, 340 (1974).
Adequate constitutional protection and effective enforce-
ment of Pape requires review by this Court and a decision
that the documentary facts require summary judgment for
defendant-petitioner.
Denial of Summary Judgment Effectively Denies
Petitioner Freedom of the Press.
Associate Judge Harris in his dissenting opinion in the
court below (App. p. 75a) correctly characterizes the sole
busis of the majority decision, i.e., that the gratuitous pre-
fatory exculpatory statement in the Staff Report precludes
summary judgment for defendant, and states (App. pp.
91a-92a) :
“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.
22
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, 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 cen-
ter of the United States, as the nation’s capital is the
origin of a myriad of such reports.”
In Cox Broadcasting Corp. v. Cohn and Miami Herald
Publishmg Co. v. Tormillo, discussed supra pp. 4-5, this
Court expressly recognized the importance of prompt de-
termination of free press claims before trial to avoid crip-
pling harm to the operation of a free press by libel liti-
gation. The lower courts also have frequently emphasized
the primary importance of summary judgment procedure
to avoid the harmful result of free press and expression
being hampered by the very judicial procedures invoked
to protect it. Meerpol v. Nizer, 381 F. Supp. 29 (S.D.N.Y.),
affirmed in relevant part 560 F. 2d 1061 (C.A. 2), cert. den.
434 U.S. 1013 (1978); Thompson v. Evening Star News-
paper Co., 394 F. 2d 774 (C.A.D.C.), cert. den. 393 U.S.
884; Washington Post Co, v. Keogh, 365 F. 2d 965 (C.A.
D.C.), cert. den. 385 U.S. 1011 (1967).
In Washington Post Co. v. Keogh, supra, the Court
stated (365 F. 2d at 968):
“In the First Amendment area, summary judgment pro-
cedures are even more essential for the stake here, if
harassment succeeds is free debate . . . The threat
of being put to the defense of a lawsuit brought by
a popular public official may be as chilling to the ex-
23
ercise of First Amendment freedoms as fear of the
outcome of the lawsuit itself, especially to advocates
of unpopular causes . . . unless persons including,
newspapers, desiring to exercise their First Amend-
ment rights are assured freedom from the harassment,
they will tend to become self-censors. Accord, Time,
Inc. v. Mc Laney, 406 F. 2d 565, 566 (C.A. 5), cert.
den. 395 U.S. 922 (1969); Bon Air Hotel, Inc. v. Time,
Inc., 426 F. 2d 858, 864-866 (C.A. 5 1970) and cases
cited therein.”
In Meerpol v. Nizer, supra the trial judge stated (381
F. Supp. at 32):
“Plaintiffs predictably contend that this motion is not
presently ripe for decison because there are issues of
fact as to the truth and falsity of specific passages
in the book and as to defendants’ malicious intent to
injure plaintiffs by the falsity of the passages. But
plaintiffs cannot defeat the motion for summary judg-
ment by asserting that there is an issue for the jury
as to malice unless they make some showing... of
facts from which malice may be inferred ...
“Accordingly, the constitutional privilege mandates the
granting of a motion for summary judgment as soon
as it becomes clear that a plaintiff cannot establish
that ‘actual malice’ required for recovery in defama-
tion actions of this nature”.®
® For an illuminating discussion of the chilling impact of litiga-
tion directed against individual members of the press, see Leon
Green, “Political Freedom of the Press and Libel Problems”, 56
Texas Law Review 341 (1978) and Rosenbloom “The New Law
of Political Libel: A Historical Prospective”, 28 Rutgers Univer-
sity Law Review, 1141-1183, (1975); Kalven, “The New York
Times Case: A Note on the Central Meaning of the First Amend-
ment”, 1964 Sup. Ct. Rev. 191. See also Kovner, “Disturbing
Trends in the Law of Defamation: A Publishing Attorney’s
24
More recently in Sutherland v. Forbes, 588 F. 2d 140
(C.A. 8, 1979) the Court pointed out (at p. 146) that mal-
ice is “an issue which lends itself to summary judgment
because actual malice must be shown with ‘convincing
clarity’” and that (at p. 145) summary judgment
“is especially appropriate in libel actions because the
very pendency of the lawsuit may exert the chilling
effect which New York Times v. Sullivan [ft. note
omitted] and its progeny seek to guard against”.
The press has expressed some perturbation about this
Court’s statement in Hutchinson v. Proxmire, US.
61 L.Ed 411, 422 ft. note 9 (1979) expressing “some
doubt about the so-called ‘rule’ that “summary judgment
might well be the rule rather than the exception” in libel
cases because proof of malice “does not lend itself to sum-
mary disposition.” *°
The court below may have given undue weight to this
footnote which is quoted (App. p. 40a). Future trial courts
may be misled by footnote 9 to deny summary judgments
which they would otherwise grant as in Hutchinson v.
Proxmire, 431 F. Supp. 1311 (D.C. Wis., 1977); Oliver v. .
Village Voice Inc., 417 F. Supp. 235 (S.D.N.Y., 1976) and
Guitar v. Western Electric Corp., 396 F. Supp. 1042, 1053
(S.D.N.Y. 1975).
Opimon”, 3 Hastings Constitutional Law Quarterly 363 (1976)
where the author pertinently remarks (p. 367) “The expenses be-
gin at the very early stages of litigation. Discovery proceedings
are time-consuming, costly and often subject a reporter to various
levels of intimidation. While these costs always have had a de-
terring effect, the costs—and hence the chill—are greatly enhanced
when the claim is not dismissed by a motion for summary judg-
ment and the publisher has to bear the expense of a trial”.
_ 3° The concern of the press about this Court’s free press decisions
is discussed in Brennan “The Symbiosis Between the Press and
the Court’, National Law Journal October 29, 1979 p. 15.
25
In each case the trial court expressing the summary judg-
ment ‘rule’ carefully placed ‘rule’ in quotation disclosing the
court’s understanding that it was not stating any settled
rule of law. In fact, the trial courts were merely stating
doctrine settled by this Court that in examining a defen-
dant’s motion for summary judgment in libel cases by a
public figure against the press the court must consider not
only the rules common to summary judgment in all cases
(presence or absence of any factual issue and taking all
inferences from facts favorable to the party opposing the
motion) but must also consider such litigation itself not
promptly concluded chills and inhibits free speech (Coa and
Tornillo, supra) and that clear and convincing evidence of
actual malice is required for jury consideration (New York
Times v. Sullivan, supra).
Moreover, the lower courts have not displayed any diffi-
culty in denying summary judgment where there exists is-
sues and evidence warranting a factual determination of
malice. (Tigue v. Swain, 585 F. 2d 909 (C.A. 8, 1978), Grif-
fith v. Electrolua Inc., 454 F. Supp. 29 (D.C. Va. 1978),
Walston v. Reader’s Digest, 429 F. Supp. 167 (D.C., D.C.)
affirmed 578 F. 2d 427 (C.A., D.C.) reversed US.
, 61 L.Ed. 450 (1979) on ground plaintiff was not a
public figure.
The correct application of summary judgment in defama-
tion cases is of the utmost importance as the frequent use
of this procedure makes clear, (See App. pp. 39a-41a). If
the Court believes that clarification is appropriate the in-
stant case is an appropriate vehicle.
Unless clarified now, misapplication of the salutary sum-
mary judgment rule will invite corrective appeals and thus
proliferate unnecessary litigation.
26
CONCLUSION
The court below mistakenly relied on the Staff Report’s
prefatory exculpation of Nader as creating a factual issue
of actual malice on the part of journalist de Toledano, He
might have ignored the exculpation completely as irrelevant
to the Staff Report and beyond the authority of the staff
which was directed to evaluate Nader’s contentions and not
his state of mind in making them. In fact as de Toledano
testified (R. 35a-36a) he did consider the Whole Report in-
cluding the prefatory exculpation in making his evaluation
of the complex government document. The good faith of a
journalist’s evaluation of a government document cannot
be impugned logically by such an irrelevant statement which
legally should be ruled insufficient to require a trial of the
issue of actual malice.
If however the Court does not wish to take this op-
portunity to elucidate its views as to the function of the
summary judgment rule in freedom of the press cases, we
respectfully submit that upon the admitted facts and the
record here the writ should be granted and without argu-
ment the judgment should be reversed and summary judg-
ment granted on the authority of Pape.
December 19, 1979
Respectfully submitted,
Epwarp J. Ennis
8 W. 40th St.
New York, N. Y. 10018
Currrorp Forster
1212 Ave. of the Americas
New York, N. Y. 10036
Counsel for Petitioner
APPENDIX
Order of Court of Appeals
DISTRICT OF COLUMBIA
COURT OF APPEALS
FILED
Sep 26 1979
Alexander L. Stevens
Clerk
No. 13019
CA 11716-75
Rate Naver,
Appellant,
v.
RaLPH DE TOLEDANO, ET AL.,
Appellees.
BEFORE:
*Newman, Chief Judge; Kelly, *Kern, Gallagher, Nebeker,
*Harris, Mack, Ferren, and Pryor Associate Judges.
ORDER
On consideration of Appellee Ralph de Toledano’s peti-
tion for rehearing and/or rehearing en banc, and it appear-
ing that a majority of the judges of this Court has voted
to deny the petition, it is
OrpERED by the merits division that appellee’s petition
for rehearing is denied; and it is
* Denotes merits division.
la
2a
Order of Court of Appeals
FurtHER Orperep that appellee’s en banc petition is
denied.
Per Curiam
Associate Judges Gallagher, Nebeker, and Harris would
grant appellee’s petition for rehearing en banc.
Copies to:
Honorable George Herbert Goodrich
Clerk, Superior Court
Michael Nussbaum, Esquire
1800 M Street NW, #250N, 20036
Nicholas 8S. McConnell, Esquire
1828 L Street NW, #1111, 20036
John R. Keys, Esquire
2550 M Street NW, #500, 20037
RECEIVED
Sep 27 1979
Jackson, Campbell & Parkinson
3a
Petition for Stay of Mandate
DISTRICT OF COLUMBIA
COURT OF APPEALS
FILED
Ocr 1 1979
Alexander L. Stevens
Clerk
Civil Action No. 11716-75
RaupH Naver,
Appellant,
Vv.
Ratrx ve ToLepano, et al,
| Appellees.
PetitTion For A Stay oF MANDATE
Comes now the defendant, Ralph de Toledano, through
his attorneys and respectfully requests that the Court stay
its mandate pending his decision to file a Petition for Writ
of Certiorari in the Supreme Court of the United States.
Defendant de Toledano is giving careful consideration to
whether it would be advisable to file a Petition for Writ
of Certiorari in the Supreme Court of the United States
from the judgment of this Court. It would not be in the
interest of justice and would unnecessarily result in ex-
pense should the case be returned to the Superior Court
where the parties may engage in proceedings unnecessary
in the event this case should go to the Supreme Court.
4a
Petition for Stay of Mandate
Three judges of this Court believed that the petition
for rehearing en banc should have been granted, which
suggests the merit of petitioner’s position.
Petitioner has 90 days from September 26, 1979, within
which to file his Petition for Writ of Certiorari in the
Supreme Court of the United States. Therefore, the stay
should be for the same period of time.
This matter has been discussed with counsel for appel-
lant, Ralph Nader, and they have stated that they consent
to the stay.
Respectfully submitted,
/8/ KennetH Wetts Parxryson
Kenneth Wells Parkinson
District of Columbia Court of Appeals
MOTION GRANTED
Ocr 11 1979
C J Neuman
5a
Order of Superior Court
SUPERIOR COURT
OF THE DISTRICT OF COLUMBIA
Crvi Division
C.A. No. 11716-75
Civil I
Jupce GoopRIcH
RateH NaAbER,
Plaintiff,
v.
Raupx DE ToLeDANO AND CopLey Press, INCORPORATED,
Defendants.
ORDER
This matter is before the Court on the motions for sum-
mary judgment of defendants Ralph deToledano and Cop-
ley Press, Incorporated, opposition thereto, the arguments
of counsel heard by the Court on October 6, 1977 at which
time the motions were taken under advisement, and the
record in this case. The Court will address both motions
in this Order because they raise substantially similar ques-
tions of law and fact, and present matters of apparent first
impression in this Court.
FactuaL BackGrounD
This is a suit for libel brought by Ralph Nader who
alleges that he was defamed in a syndicated newspaper
column authored by defendant Ralph deToledano and dis-
6a
Order of Superior Court
tributed by defendant Copley Press, Incorporated in Jan-
uary of 1975.
Paragraph 8 of the complaint alleges that the following
paragrapk of the column was libelous:
“In this endeavor [opposition to development of 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 Congres-
sional Record to demonstrate conclusively that Nader
falsified and distorted evidence to make his case
against the automobile.”
Plaintiff asserts that this paragraph is false and defam-
atory and that defendant deToledano knew the statement
in the column was false when he wrote it or wrote it in
reckless disregard of the truth. Plaintiff also asserts that
defendant Copley Press, Incorporated published the col-
umn in reckless disregard of the truth, or knowing it was
false.
Finpinecs or Fact
AND
Concuusions or LAw
I. Ralph Nader Is a Public Figure
At the outset, the Court finds that Ralph Nader is a
“public figure” as defined by the Supreme Court in Gertz
v. Robert Welch, Inc., 418 U.S. 323 (1974). In neither his
pleadings nor argument does counsel for the plaintiff dis-
pute this characterization of his client. Indeed, such dis-
pute would be fruitless given Mr, Nader’s vigorous and
widely reported activities in such areas of public concern
as automobile safety and nuclear energy, the topics ad-
dressed in the column at issue.
7a
Order of Superior Court
2. Actual Malice Test
Constitutional law dictates that a public figure may re-
cover damages for libel only upon a showing that the
defendant acted with “actual malice’, Curtis Publishing
Company v. Butts, 388 U.S. 130 (1967). Actual malice, in
this context, means knowledge that the defamatory state-
ment is false or a reckless disregard for its truth. Gertz
v. Robert Welch, Inc., supra. The Supreme Court has
emphasized repeatedly that actual malice is an exacting
standard of proof, limiting recovery to cases where the
evidence shows “... false statements made with a high
degree of awareness of their probable falsity .. .”, Gar-
rison v. Louisiana, 379 U.S. 64, 74 (1964) or that “... the
defendant in fact entertained serious doubts as to the truth
of his publication.” St. Amant v. Thompson, 390 U.S. 721,
731 (1968).
Counsel for plaintiff does not dispute the applicability
of the actual malice test in this case, nor does he quarrel
with these definitions of actual malice.
Given counsel’s acquiescence in the description of his
client as a public figure, application of the actual malice
requirement follows inexorably.
3. Clear and Convincing Proof
A sharp dispute was presented by counsel for both
parties concerning what burden of proof of actual malice
should be borne by the plaintiff at the summary judgment
stage. Unquestionably, the plaintiff must show actual mal-
ice by “clear and convincing proof” at trial. Gertz, supra;
New York Times Company v. Sullivan, 376 U.S. 254 (1964).
Counsel for plaintiff in the instant case maintains that the
“clear and convincing” requirement does not extend to sum-
mary judgment; however, in two recent cases, the United
8a
Order of Superior Court
States District Court for the District of Columbia held that
a public figure plaintiff in a libel action must produce clear
and convincing proof of actual malice in order to avoid
the granting of a motion for summary judgment. Wolston
v. Reader's Digest Ass’n, Inc., 429 F. Supp. 167 (D.D.C.
1977) ; Hoffman v. The Washington Post Company, (Memo-
randum Opinion in C.A. No. 76-1197, D.D.C. 1977).
This Court concurs with the United States District
Court in Wolston v. Reader’s Digest Ass’n that the “clear
and convincing” burden is appropriate and necessary at
the time of summary judgment “. . . to avoid the ‘chilling
effect’ on freedom of speech and press that inheres in
the threat of being put to the defense of a lawsuit.” Wol-
ston, 429 F. Supp. at 179. Prevention of the insidious
self-censorship caused by the expense of responding to
libel suits has been a central interest of the courts which
have, reduced drastically the possibilities for libel recov-
eries by public officials and public figures. The position
adopted by the United States District Court in Wolston
and Hoffman, making it more difficult for a libel action
by a public figure to reach trial, is merely a logical step
toward fulfilling the mandate of New York Times v. Sulli-
van for the maintenance of free and robust public debate.
Therefore, it is the position of this Court that, to escape
summary judgment, the plaintiff Ralph Nader must show
by clear and convincing evidence in the existing record
that defendant deToledano wrote and published the column
with actual malice and that defendant Copley Press pub-
lished the column with actual malice.
4. Genuime Issues of Material Fact
In considering a motion for summary judgment, the
first task of the Court is the determination of whether
9a
Order of Superior Court
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 infer-
ences, when viewed as favorably as possible for the plain-
tiff, establish with convincing clarity that the defendants
acted with actual malice.
(A) Derenpant pe ToLEDANO
As to defendant deToledano, plaintiff argues that a
genuine issue of actual malice exists because the report
in the Congressional Record which formed the basis of
the column stated explicitly that the plaintiff acted in good
faith. Congressional Record of March 27 and 28, 1973
p. S5870—Exhibit “A” attached to de Toledano’s motion
for summary judgment. Plaintiff maintains that defen-
dant de Toledano’s deposition shows that he was aware
of the “good faith” disclaimer, therefore he must have
known the falsity of his statement in the column that the
report in the Congressional Record “. . . demonstrate[d]
conclusively that Nader falsified and distorted evidence
to make his case against the automobile.”
In fact, uncontroverted statements in the affidavit of
defendant deToledano 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 charac-
terization of the material in the Congressional Record
(deToledano’s affidavit and deposition).
The Court’s reading of the Congressional Record sug-
gests that the single passage regarding the plaintiff’s
10a
Order of Superior Court
“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 deToledano’s interpreta-
tion, although defensible, was mistaken. A rational expla-
nation of an ambiguous document, even if mistaken, does
not constitute clear and convincing evidence of actual
malice. Time, Incorporated v. Pape, 401 U.S. 279 (1971).
Therefore, plaintiff fails to show the existence of a gen-
uine issue of material fact as to the actual malice of de-
fendant deToledano.
(B) Defendant Copley Press
Defendant Copley Press, Incorporated has also moved
for summary judgment, and the Court must ascertain
whether there are genuine issues of material fact as to
Copley Press’s liability. Once again, the plaintiff must
support the burden of demonstrating that the evidence
and permissible inferences, when viewed as favorably as
possible for the plaintiff, establish with convincing clarity
that the defendant acted with actual malice.
(1) Plaintiff asserts that here is an issue of fact as to
“{w]hether Copley had ‘obvious reason to doubt the ve-
racity’” of deToledano. (P. 4 of plaintiffs opposition to
Copley’s motion for summary judgment.)
According to the plaintiff, a jury could infer that Copley
knew nothing about deToledano’s reliability from the
fact that the Copley employee with primary responsibility
for reading and editing the column, Donald Charles Ohl,
had never read anything authored by deToledano before
he arranged for syndication with Copley—six months be-
lla
Order of Superior Court
fore the publication of the alleged libel. Nor had Mr.
Ohl met, spoken to, or corresponded with deToledano prior
to syndication. (Pp. 8-11, deposition of Donald Charles
Ohl). In addition, Ohl rejected certain columns submitted
by deToledano for publication. (Pp. 28-33, deposition of
Donald Charles Ohl).
The Court finds that there is no genuine issue of ma-
terial fact as to “[w]hether Copley had ‘obvious reason
to doubt the veracity’” of deToledano. Assuming that
the record would permit a jury to infer that Copley knew
nothing about deToledano’s reliability, this inference would
be insufficient to provide clear and convincing evidence
that Copley published the column with actual malice. Ab-
sence of knowledge of the veracity of an author does not
establish that the publisher should suspect the truth of an
article. The United States Court of Appeals for this cir-
cuit has held that only where an author has a reputation
for persistent inaccuracy can the publisher be expected to
entertain such suspicion. The Washington Post v. Keogh,
365 F2d 965 (D.C. Cir. 1966), cert. denied 385 U.S. 1011
(1967).
The plaintiff also fails to show actual malice clearly
and convincingly because the record before the Court does
not support the inference that Copley knew nothing about
deToledano’s reliability. It is undisputed that Ohl knew
before the syndication agreement that eighty newspaper
editors subscribed to deToledano’s column. (Pp. 41-42,
44-45 deposition of Donald Charles Ohl). More impor-
tantly, Ohl edited three deToledano columns a week for
six months and found the author to be “generally reliable”.
(8, Second affidavit of Donald Charles Ohl). The record
shows that some columns were rejected, but as outdated
12a
Order of Superior Court
or inferior rather than untruthful. (Pp. 28-33, deposition
of Donald Charles Ohl).
Finally, plaintiff does not contest Copley Press’s asser-
tion that over the six months of syndication preceding the
column in question, no complaints were made to Copley
regarding the accuracy of the deToledano columns. (140,
Copley Press Statement of Material Facts). Viewing the
factual record most favorably for plaintiff, a jury could
infer that Copley did not have extensive knowledge about
deToledano’s reliability, but the evidence does not sup-
port the inference that Copley knew nothing about his
reliability. Proof that the publisher had limited oppor-
tunity to assess the accuracy of a columnist does not
demonstrate actual malice clearly and convincingly.
(2) Plaintiff also claims that there is an issue of fact
as to “[w]hether Copley had ‘obvious reason to doubt
the accuracy’ of deToledano’s column”, (P. 5 of plaintiff's
opposition to Copley Press motion for a summary judg-
ment). Plaintiff cites three bases for this claim: (i) that
the jury could infer reckless disregard for the truth from
the very fact that Copley published a column which ac-
cused Nader, whose career depends on his veracity, of
distorting and falsifying evidence; (ii) that Ohl knew
about the report described in the column but had never
read of a finding that Nader had falsified evidence in
spite of the fact that the existence of such a finding would
have been reported extensively; and (iii) that there was
no factual basis for Copley’s belief in the accuracy of
deToledano.
The Court finds that there is no genuine issue of ma-
terial fact as to “whether Copley had ‘obvious reasons to
doubt the accuracy’ of deToledano’s column”. As a matter
of law, the jury could not infer actual malice from the
mere character of the statement in the column; the draw-
13a
Order of Superior Court
ing of such an inference is constitutionally impermissible.
Washington Post v. Keogh, supra; New York Times v.
Sullivan, supra. Assuming that the inference were legally
acceptable, the record contains no factual basis for it.
The undisputed facts in the documents presented to the
Court clearly show substantial controversy over the ac-
curacy of Mr. Nader’s public statements. The record does
not show an unquestioned reputation for accuracy which
would cause a publisher to suspect a statement that Nader
“falsified and distorted” evidence. Indeed, in support of
his position the plaintiff merely asserts that his “... career
depends largely on his honesty”. (P. 5, plaintiff’s oppo-
sition to Copley Press motion for summary judgment.)
This assertion of course, is not evidence and cannot form
the basis for any inference by a jury or by the Court.
The plaintiff argues that there is an issue of fact as
to whether Copley had reason to doubt the truth of the
column because, at the time he edited it, Ohl knew of the
existence of the report discussed in that column but had
not read that the report accused Nader of falsifying evi-
dence. According to the plaintiff, such an accusation would
have been covered extensively by the media, therefore
its absence should have alerted Ohl to the possible unac-
curacy of the column. In fact, a reading of the pertinent
section of Ohl’s deposition reveals that the witness was
indeed aware from news stories of the existence of the
report and that his recollection of the gist of these stories
was that the report had found “... some of the charges
made against the Corvair by Ralph Nader were not sub-
stantiated.” (P. 37, deposition of Donald Charles Ohl).
This deposition testimony clearly demonstrates that Ohl’s
information concerning the report at the time he read the
column could only tend to reinforce his belief in its truth-
l4a
Order of Superior Court
fulness. Plaintiff’s tortured interpretation of this testi-
mony and his conclusory and unsupported assertion that
a charge of falsification would have been widely covered
by the news media are not sufficient to establish a genuine
issue of fact as to the existence of reason to doubt the
veracity of the column.
The final support plaintiff cites regarding the existence
of a factual issue concerning reason to doubt the accuracy
of the column is a lack of factual basis for Copley’s faith
in the trustworthiness cf the reporter, deToledano. This
Court has already ruled that the plaintiff has failed to
produce clear and convincing evidence of the asserted
“lack of factual basis”.
Therefore, the Court finds that none of the three grounds
advanced by plaintiff establish a triable issue of fact as
to “[w]hether Copley had ‘obvious reasons to doubt the
accuracy’ of deToledano’s column”.
(3) Another genuine issue of material fact urged by the
plaintiff is “[w]hether the libelous statement was ‘so in-
herently improbable that only a reckless man would have
put [it] in circulation’”. (P. 6 plaintiff’s opposition to
Copley Press motion for summary judgment). Plaintiff
maintains that a jury could infer reckless disregard for
truth from Copley’s failure to verify the column’s content
when the charge lodged against plaintiff was so serious
and when the time and the means for verification were
available.
The Court finds that there is no such genuine issue of
material fact. Plaintiff has failed to prove with convinc-
ing clarity that Copley Press had reason to doubt the accu-
racy of the column or that they lacked any basis for rely-
ing on deToledano’s truthfulness. Therefore, the Court is
unable to locate any source in the record for the claimed
15a
Order of Superior Court
duty on the part of Copley Press to conduct an independent
investigation into the accuracy of the column. Certainly
the character of the statement itself does not give rise to
such a duty. The Court has already found that the record
does not provide clear and convincing evidence that the
assertions of the column were “inherently improbable”.
Speculation by the plaintiff’s counsel concerning his cli-
ent’s “high calling” does not remedy this deficiency in the
proof.
Furthermore, the United States Court of Appeals in
this jurisdiction, following New York Times v. Sullivan
refused to require verification of an apparently far graver
accusation—bribery of and by a United States Congress-
man. Washington Post Co. v. Keogh, supra.
This Court perceives nothing in the record of this case
to justify imposition on Copley Press of a duty to verify
deToledano’s column. Therefore, since the failure to ver-
ify could not form the basis of a jury finding of actual
malice, there is no genuine issue of material fact as to
verification.
(4) Finally, plaintiff argues that there is a genuine issue
of material fact as to “[w]hether Copley had actual knowl-
edge that deToledano’s charge was false.” (P. 6, plaintiff’s
opposition to Copley Press motion for summary judg-
ment.) Although plaintiff acknowledges that Ohl stated
categorically in his second affidavit that he neither knew
nor had reason to know that the column was false (p. 3,
second affidavit of Donald Charles Ohl), plaintiff contends
that a jury could find that Ohl had reason to know deTole-
dano’s statement was untrue because Ohl was aware of
the existence of the report relied on by deToledano, and
Ohl’s information suggested only that Nader was mistaken,
not that he falsified evidence.
l6a
Order of Superior Court
The Court has already declined to accept this argument.
Plaintiff does not dispute Ohl’s deposition testimony that,
at the time he edited the column, the extent of his knowl-
edge of the report cited in the column was that certain
news stories had indicated that “ ... some of the charges
made against the Corvair by Ralph Nader were not sub-
stantiated by fact.” (P. 37, deposition of Donald Charles
Ohl). In the opinion of the Court, the only reasonable
inference from this uncontroverted testimony is that Ohl
had no reason to doubt the truthfulness of the column.
Certainly, plaintiff cannot rely on this merger evidentiary
showing to support his burden of producing clear and con-
vincing proof of actual malice. There is no genuine issue
of material fact as to “[w]hether Copley had actual know]l-
edge that deToledano’s charge was false.”
5. Judgment as a Matter of Law
Having determined that there are no genuine issues of
material fact, the Court must now decide whether the de-
fendants are entitled to judgment as a matter of law, Rule
56(c), Civil Rules of the Superior Court. Inasmuch as the
Court has found that the plaintiff has failed to produce
clear and convincing evidence of actual malice as to either
deToledano or Copley Press, the Court holds that both
defendants are entitled to judgment as a matter of law.
Wolston v. Reader’s Digest, supra; Hoffman v. The Wash-
ington Post Company, supra.
Therefore, there being no genuine issues of material fact,
and both defendants being entitled to judgment as a mat-
ter of law, it is by the Court this lst day of October, 1977
Orperep that the motions for summary judgment of de-
fendants Ralph deToledano and Copley Press, Incorpo-
rated be, and the same hereby are, granted; and it is
17a
Order of Superior Court
Furruer Orperep that the complaints against Ralph
deToledano and Copley Press, Incorporated be, and the
same hereby are, dismissed with prejudice. i
/8/ GEORGE Hersert Gooprich
Judge George Herbert Goodrich
18a
Opinion of Court of Appeals
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13019
RaupH NADER, APPELLANT,
v.
RautpeH DE ToLEDANO AND CopLey Press, Inc.,
APPELLEES.
Appeal from the Superior Court of the
District of Columbia
(Hon. George Herbert Goodrich, Trial Judge)
(Argued June 29, 1978 Decided July 31, 1979)
Michael Nussbaum, with whom Ronald G. Precup and
Lucien Hilmer were on the brief, for appellant.
Nicholas S. McConnell, with whom Kenneth Wells
Parkinson was on the brief, for appellee Ralph de
Toledano.
John R. Keys, Jr., with whom John R, Reilly was on
the brief, for appellee Copley Press, Inc.
Before Newman, Chief Judge, and Kern and Harris,
Associate Judges.
Opinion for the court by Chief Judge Newman.
Opinion, concurring in part and dissenting in part, by
Assoctate Judge Hanrnis at p. 59.
19a
Opinion of Court of Appeals
Newman, Chief Judge: This is an appeal from sum-
mary judgment for the defendants in a libel action
brought by Ralph Nader against journalist Ralph de
Toledano and his syndicator, Copley Press, Inc., for
statements made by de Toledano in a column distributed
by Copley. In determining whether summary judgment
was properly entered against appellant, we are called upon
to decide a threshold issue of first impression in this
court—the showing which a public figure plaintiff must
make in order to defeat a defense motion for summary
judgment in a libel action governed by the constitutional
standards enunciated in New York Times v. Sullivan,
376 U.S. 254 (1964) (New York Times).1 We reverse
the summary judgment as to appellee de Toledano and
remand for trial; we affirm as to appellee Copley Press.
I
The dispute in this case has its origins in the public
controversy which surrounded the issue of the safety of
1 Appellant Nader alleged in his complaint, and appellees agree,
that he is a “public figure” as contemplated by the Supreme Court
in the companion cases of Curtis Publishing Co. v. Butts, and
Associated Press v. Walker, 388 U.S. 130, 154-55 (1967), and
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The Gertz Court
defined the “public figure” concept thusly:
That 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 ali pur-
poses and in all contexts. More commonly, an individual vol-
untarily 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
armas in the resolution of public questions. [418 U.S. at
351.
See also Time, Inc. v. Firestone, 424 U.S. 448, 453-55 (1976) (fur-
ther clarifying “public figure” concept).
20a
Opinion of Court of Appeals
the Corvair automobile, manufactured by General Motors
(GM) during the early 1960’s. In the intense public de-
bate on the question, appellant Nader was a principal
spokesman for critics who contended that defects in the
Corvair’s basic design presented an unreasonable risk of
harm to millions of Americans on the nation’s streets and
highways. Defending the efficacy of the Corvair design,
GM maintained that the Corvair was as safe as any
other comparable American vehicle. It was amidst this
controversy that the United States Senate Subcommittee
on Executive Reorganization and Government Research,
chaired by Senator Abraham Ribicoff, held hearings in
March 1966 on the subject of GM’s investigation and
surveillance of appellant because of his general criticism
of automobile design and his vigorous anti-Corvair cam-
paign in particular. Despite the narrow focus of the sub-
committee’s inquiry, the safety of the Corvair became an
issue during the hearings. It was first raised by Aloysius
F, Power, then general counsel of GM, who stated for
the record that the Corvair was not an unsafe vehicle
and cited in support of his contention two personal injury
cases involving the Corvair in which GM had won jury
verdicts. During his testimony at the hearings, appellant
attacked the Corvair’s safety; as support for his conten-
tion, he submitted a supporting design study of the Cor-
vair prepared by a private consulting firm. James Roche,
then Chairman of GM, then inserted in the record copies
of relevant testimony supportive of the Corvair which
had been given before the Michigan State Legislature in
February 1966 by Louis Bridenstine, then assistant gen-
eral counsel of GM, and Frank Winchell, then chief of
research and development at the Chevrolet Division.
21a
Opinion of Court of Appeals
Other witnesses at the hearing also testified with regard
to the Corvair’s general safety.
In its report to the Senate on the general issue of the
federal role in traffic safety, the subcommittee alluded to
the continuing controversy surrounding Corvair, as mani-
fested by the Nader-GM hearings and the volume of liti-
gation in process over the safety of the 1960-63 Corvair
design. However, the subcommittee made no finding with
respect to the Corvair’s safety, noting that such a deter-
mination lay beyond the scope of its subject matter juris-
diction (which did not extend to traffic and highway safety
legislation) and its technical competence.
Subsequently, in 1970-71, appellant Nader wrote a
series of letters to John Volpe, then Secretary of the
Department of Transportation (DOT), and to Senator
Ribicoff, requesting that their respective government
agencies conduct official investigations into the Corvair’s
safety. He stated that GM, by its introduction of the
Corvair on the market, had ignored the warnings of one
of its own highly respected engineers as to the hazards of
an automobile design (such as the Corvair’s) which in-
corporated a rear engine and a swing axle rear suspen-
sion system as central features. He identified what he re-
garded as specific technical defects in the Corvair (e.g.,
enhanced rollover capability and hence inadequate vehicle
stability due to, iter alia, dysfunctional rear suspension
system and differential front and rear tire pressures),
which necessitated further governmental inquiry and cor-
rective action. According to Nader, GM persisted in its
failure to adopt needed modifications in the early Corvair
models which would have remedied these known design
defects, even though it possessed the requisite technology.
When GM did make design modifications in the 1964 and
22a
Opinion of Court of Appeals
1965 models, Nader contended, the company misrepre-
sented the nature, purpose, and effect of such changes.
However, appellant’s letters were primarily devoted to
an indictment of the veracity and good faith of GM’s con-
duct in relation to the Corvair before both national and
state legislative bodies and the courts. Nader charged,
inter alia, that: (1) high-level GM officials maintained a
special “hot documents” file—consisting of company-
produced test data and films which conclusively demon-
strated that the 1960-63 Corvair models were danger-
ously defective due to basic design flaws—which they
conspired to, and did, suppress; (2) despite knowledge
of the unsafety of the Corvair, GM continued to wage a
campaign of public affirmation of the car’s safety; (3) in
1966 GM officials made false statements attesting to the
Corvair’s safety in testimony before the Ribicoff subcom-
mittee and the Michigan State Legislature (copies of
which had been submitted to the Ribicoff subcommittee
during its hearings) which they knew were contradicted
by GM’s secret test data and films; (4) GM repeated the
same misrepresentations to Secretary Volpe; (5) GM had
engaged in fraud and deceit in its defense of two personal
injury cases involving the Corvair—Anderson v. General
Motors Corporation (tried in Clearwater, Florida) and
Collins v. General Motors Corporation (tried in Santa
Clara County, California) through its unlawful failure
to disclose, as required by legal discovery procedures, GM
test films and data critical of the Corvair’s safety, and
through the false and misleading testimony of GM de-
fense witnesses as to the existence of such data and other
safety issues. Nader based these allegations on his analy-
sis of several documents—including portions of the tran-
script of the 1966 Ribicoff subcommitte hearings; tran-
23a
Opinion of Court of Appeals
script of the Anderson and Collins trials; and two GM
proving ground test reports which he had obtained, PG
17103 and PG 15699. He recommended that Senator Ribi-
coff investigate the individual GM officials implicated by
his allegations of misrepresentations during the 1966 hear-
ings to determine whether the subcommitte should request
a criminal investigation by the Department of Justice for
possible violations of 18 U.S.C. § 1001 (1948).? Appellant
released at least one of the letters to Senator Ribicoff,
a 32 page document, detailing his allegations of GM’s
suppression of evidence and falsification of testimony be-
fore governmental agencies and the courts, to the press,
which gave the controversy wide coverage.
Appellant further charged in a later communication that
GM had substantially altered the official record of the
Ribicoff subcommittee’s 1966 hearings by making major
deletions and additions in the transcript such that the
official hearing record, as published in 1966, did not accu-
rately reflect the substance of the sworn testimony.
In response to Nader’s allegations, Senator Ribicoff
requested that GM submit to the subcommittee all the doc-
uments and films cited by Nader in his correspondence,
all other significant test reports, and all internal GM
memoranda exchanged among the high-level GM officials
designated by Nader relevant to the question of the Cor-
vair’s general safety. He also requested that Nader pro-
vide the subcommittee with all the information concerning
the Corvair which he possessed. Thereafter, the Ribicoff
subcommittee embarked upon an investigation, which
* The Code section makes it unlawful to knowingly and willfully
falsify or conceal a material fact or make any false statement in
any matter within the jurisdiction of any department or agency
of the United States.
24a
Opinion of Court of Appeals
spanned two and one-half years, into Nader’s charges of
GM’s deceit of governmental agencies.
The investigation focused on two principal issues—the
veracity of G@M’s testimony before the subcommittee in
1966 and GM’s conduct of several lawsuits involving the
Corvair.’ In addition to studying the scores of documents
submitted by GM, and the 53 submitted by Nader, as well
as other relevant materials provided at its request, the
subcommittee staff interviewed almost 100 people for a
total of 117 hours. Through interviews with both active
and retired personnel at every level of GM, from top
management to clerical and technical employees, the sub-
committee sought to obtain all relevant information on
the issues under study.
On March 14, 1973, after completion of the lengthy
study, the subcommittee issued its findings and conclu-
sions in an extensive report which was inserted into the
Congressional Record. 119 Cone. Reo. 5870 (1973). The
report addressed in systematic fashion each of the allega-
tions which Nader had made against GM’s conduct, both
* As a result of Nader’s contention that DOT’s National High-
way Safety Bureau had neglected its duty to investigate the de-
sign hazards inherent in the Corvair, DOT conducted extensive
performance tests of the 1962 Corvair model, focusing on the car’s
stability and susceptibility to rollover, at the Texas Transportation
Institute. The department employed three independent technical
experts to assist in the evaluation of the Corvair results as meas-
ured against those of the five other contemporary automobiles
against which the Corvair was tested. After study of the test data
and films, DOT concluded in July 1972 that the handling of the
1960-63 Corvair models possessed no safety defect and that their
handling and stability performance was comparable to that of the
other vehicles tested. Because Nader challenged the validity of the
DOT conclusions, and because it was relevant to the issue of
whether the subcommittee had been misled as to the general safety
of the Corvair, the Ribicoff subcommittee also addressed several
issues relevant to the broad question of Corvair design safety.
25a
Opinion of Court of Appeals
before the Senate subcommittee and in the courts, and the
Corvair’s safety, insofar as deemed relevant. In the sub-
committee’s view, the factual evidence yielded by its mas-
sive investigation provided no substantiation for Nader’s
claims. With regard to this central finding, the following
statement appeared in the introduction (entitled “Sum-
mary”) to the report:
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 informa-
tion available to him. After gathering all the evi-
dence concerning them, we can understand how he
reached the positions stated in his letters. The docu-
ments 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.
The body of the report consisted largely of a point-by-
point refutation of Nader’s charges. The subcommittee
staff concluded specifically that the subcommittee had not
been misled at the March 1966 hearing by testimony of
GM witnesses regarding the stability and handling of the
Corvair. The subcommittee found that the DOT, Con-
sumers Union, Ford, and GM test data and analyses sup-
ported GM’s contention that the 1960-63 Corvair was
safe and that its handling performance was comparable
to that of other contemporary vehicles. The staff located
no evidence that GM management officials had failed to
consider any relevant data or documents supportive of a
contrary conclusion. It further found that GM had not
engaged in any fraud or deceit in its defense in the
Anderson, Collins, or other cases which the subcommittee
26a
Opinion of Court of Appeals
reviewed. The subcommittee could find no factual basis
for Nader’s accusations, which had been widely dissemi-
nated in the press, that GM engineer Frank Winchell
had misrepresented the viability of the Corvair design
and the car’s general safety performance during his testi-
mony at the 1966 subcommittee hearings and in several
court cases involving the issue of Corvair safety. The
subcommittee stated that Nader’s accusations against Win-
chell were unjustified. It concluded that none of the other
matters alleged by Nader warranted further investigation
by the subcommittee or reopening of the hearings, or re-
ferral to federal or state law enforcement agencies. 119
Conc. Rec. at 5885.
Appellant’s criticism of the Corvair and his subsequent
involvement in the general field of consumer affairs have
evoked widespread public discussion—ranging from praise
from supporters to condemnation from hostile critics. Ap-
pellee de Toledano, a syndicated columnist based in Wash-
ington, D.C., is among those who have reported and com-
mented on appellant’s public interest advocacy. In Jan-
uary 1975, appellee de Toledano wrote a newspaper col-
umn concerning appellant’s opposition to the development
and utilization of nuclear power as a source of energy in
this country. Appellee made the following statement:
In this endeavor, Nader is being aided and abetted
by Sen. Abraham Ribicoff, D-Conn., who not long ago
devoted some 250 devastating columns of the Congres-
sional Record to demonstrate conclusively that Nader
falsified and distorted evidence to make his case
against the automobile.‘
$ Appellee de Toledano stated in his deposition that the term
“automobile” in the statement was meant to refer to the Corvair.
See Appendiz for the full text of the newspaper column.
27a
Opinion of Court of Appeals
De Toledano furnished the column containing the state-
ment to appellee Copley Press, Inc., for distribution to and
publication by its subscribing newspapers. The column
was in fact published.
Appellant initiated a libel action for $5,000 as com-
pensatory damages and $1,000,000 as punitive damages,
alleging that the above-quoted statement is libelous per se.
Upon completion of discovery, appellees moved separately
for summary judgment on the ground that appellant
could not prove “with convincing clarity” that the alleg-
edly libelous statement was published with “actual malice,”
as contemplated by the New York Times rule. The motions
were both granted.
II
During the past decade the Supreme Court has sub-
stantially rewritten the state law of defamation in recog-
nition of the impact of the First Amendment on that
body of law. See generally Robertson, Defamation and
the First Amendment: In Praise of Gerte v. Robert
Welch, Inc., 54 Texas L. Rev. 199 (1976); Haton, The
American Law of Defamation through Gertz v. Robert
Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L.
Rev. 1349 (1975). The Court commenced the process of
defining the relationship between the First Amendment
and defamation law in 1964 with the landmark decision
of New York Times, supra. In thai case, the Court re-
versed an Alabama state court judgment in a civil libel
action in favor of an elected government official who
claimed that he had been defamed by allegations pub-
lished in a New York Times advertisement of his com-
plicity in police action against civil rights demonstrators.
The rationale for the Court’s decision in that case rested
28a
Opinion of Court of Appeals
on the significance of the First Amendment in the context
of American democratic society. Starting from the initial
premise of our “profound national commitment to the
principle that debate on public issues should be uninhib-
ited, robust, and wide-open,” 376 U.S. at 270, the Court
proceeded to examine the relationship between the values
implicit in the First Amendment and the American theory
of government. From its analysis of the historical con-
troversy over the Sedition Act of 1798 the Court derived
two basic maxims: (1) that free discussion of political
affairs and government officials is fundamental to the
American system of self-government, and consequently,
(2) that government sanction of seditious libel is antithet-
ical to the thesis of American democracy. 376 U.S. at 273-
76. Therein lay the “central meaning of the First Amend-
ment” for the Court. See Kalven, The New York Times
Case: A Note on “The Central Meaning of the First
Amendment,” 1964 Sup. Cr. Rev. 191, 204-05. Thus, the
Court concluded that protection of public debate of public
affairs lies at the core of the First Amendment free speech
and free press guarantees.
Because the threat of defamation liability possesses great
potential for intrusion on the zone of protected public
speech, the Court deemed traditional defamation principles
incompatible with First Amendment precepts. Reconcilia-
tion of the competing societal interests in the maintenance
of an unimpaired flow of information and ideas fostered
by a free press and the individual’s interest in freedom
from defamation necessitated construction of a new sys-
tem of defamation liability reflective of the role of First
Amendment liberties in our scheme of constitutional values.
The Court, through the formulation of a restrictive rule
of liability for defamation concerning the conduct of gov-
29a
Opinion of Court of Appeals
ernmental affairs by public officials, thus imposed major
restraints on a state’s power to award damages to redress
wrongful injury to an individual’s reputation. The New
York Times Court established a federal rule, premised on
“constitutional guarantees,” prohibiting recovery by a pub-
lic official for 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.” 376 U.S. at 279-80. The extension of a conditional
constitutional privilege to defame as to matters within the
realm of public discussion of public affairs, defeasible only
upon publication of defamatory falsehoods with “actual
malice,” provided “freedoms of expression [with] the
‘breathing space’ that they ‘need ... to survive.’” 376 U.S.
at 371-72, quoting NAACP v. Button, 371 U.S. 415, 433
(1963). The Court thereby sought to implement the First
Amendment policy of maximization of public debate
through minimization of the incentives for self-censorship
presented by the threat of defamation liability. See An-
derson, Libel and Press Self-Censorship, 53 Tex. L. Rev.
422 (1975).
A series of Supreme Court decisions subsequent to New
York Times, involving civil and criminal sanctions in state
defamation actions evince the Court’s continuing “bias
toward unfettered speech at the expense ... of compen-
sation for harm to reputation,” Buckley v. Littell, 539 F.2d
882, 889 (2d Cir. 1976). As the Court stated in Gertz v.
Robert Welch, Inc., 418 U.S. 323, 339-40 (1974), “[u]nder
the First Amendment there is no such thing as a false
idea. However pernicious an opinion may seem, we de-
pend for its correction not on the conscience of judges and
juries but on the competition of other ideas.” ( Footnote
30a
Opinion of Court of Appeals
omitted.) In these cases, the Court has expanded and
clarified the privilege created by New York Times by a
process of “dialectic progression.” Kalven, supra at 221.
See Garrison v. Louisiana, 379 U.S. 64 (1964); Henry v.
Coilins, 380 U.S. 356 (1965) (per curiam); Rosenblatt v.
Baer, 383 U.S. 75 (1966); Beckley Newspapers Corp. v.
Hanks, 389 U.S. 81 (1967) (per curiam) ; Curtis Publishing
Co. v. Butts, 388 U.S. 130 (1967); St. Amant v. Thompson,
390 U.S. 727 (1968); Greenbelt Cooperative Publishing
Ass’n v. Bresler, 398 U.S. 6 (1970); Momitor Patriot Co
v. Roy, 401 U.S. 265 (1971); Time, Inc. v. Pape, 401 U.1.
279 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S.
295 (1971); Rosenbloom v. Metromedia, Inc., 403 U.S. 29
(1971) ; Gertz v. Robert Welch, Inc., supra. The court fur-
ther extended the free speech protection accorded by the
New York Times privilege to statements made in the con-
text of labor disputes. Linn v. United Plant Guard Workers
of America, Local 114, 383 U.S. 53 (1966), and Old Domin-
ion Branch No. 496, National Association of Letter Car-
rier, AFL-CIO v. Austin, 418 U.S. 264 (1974) (Letter
Carrier v. Austin). The New York Times privilege has
also been applied in situations other than libel. See Time,
Inc. v. Hil, 385 U.S. 374 (1966) (invasion of privacy), and
Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974)
(invasion of privacy); Pickering v. Board of Education,
391 U.S. 563 (1968) (dismissal of public employees).
Thus, we approach the task before us mindful that
“speech concerning public affairs is more than self-expres-
sion; it is the essence of self-government.” Garrison v.
Louisiana, supra at 74-75. The constitutional guarantee
of freedom of the press is “not for the benefit of the press
so much as for the benefit of all of us, [for a] broadly
defined freedom of the press assures the maintenance of
3la
Opinion of Court of Appeals
ourt political system and an open society.” Time, Inc. v.
Hill, supra at 389.
Ii
The constraints placed on the scope of defamation liabil-
ity by the New York Times rule have been extended to the
context of libel actions by public figures. Gertz v. Robert
Welch, Inc., supra; Curtis Publishing Co. v. Butts, supra.
Those who, by reason of the notoriety of their achieve-
ments or the vigor and success with which they seek
the public’s attention, are properly classed as public
figures ... may recover for injury to reputation only
on clear and convincing proof that the defamatory
falsehood was made with knowledge of its falsity or
with reckless disregard for the truth. [Gertz, 418 U.S.
at 342.]
Hence, proof of defamation and falsity alone affords an
insufficient basis for recovery by public figure libel plain-
tiffs. Rather, such plaintiffs must prove publication with
“actual malice” by “clear and convincing proof” in order
to establish the defendant’s liability.
The underlying basis for the Gertz Court’s delimitation
of such a narrow zone of legal protection from reputa-
tional injury for public figures is twofold: (1) such per-
sons have assumed the increased risk of harm to reputation
by their voluntary involvement in public affairs, and (2)
their “significantly greater access to the channels of effec-
tive communication” affords them “available opportunities
to contradict the lie or correct the error and thereby to
minimize its adverse impact on reputation.” 418 U.S. at
344. See Note, Public Figures, Private Figures and Pub-
lic Interest, 30 Stan. L. Rev. 157 (1977); Note, The Su-
32a
Opinion of Court of Appeals
preme Court, 1973 Term, 8& Harv. L. Rev. 41, 139-48
(1974).
Thus, in order to succeed in this action, it is incumbent
on appellant—a public figure—to prove that the allegedly
defamatory statement was published by appellees with
actual malice.
The actual malice concept has been the subject of ex-
position in several Supreme Court opinions, and is by now
rather well-defined. Actual malice, in the constitutional
sense, differs dramatically from the pre-New York Times
concept. The traditional common law definition of malice
equated it with bad or corrupt motive, spite, ill will, gen-
eral hostility, intention to injure, or hatred. However,
publication with these motives alone does not satisfy the
New York Times standard, and actual malice can never
be inferred from the mere presence of such factors. Letter
Carriers v. Austin, 418 U.S. at 281; Greenbelt Cooperative
Publishing Ass’n v. Bresler, 398 U.S. at 10; Beckley News-
papers Corp. v. Hanks, 389 U.S. at 82; Rosenblatt v. Baer,
383 U.S. at 84; Garrison v. Louisiana, 379 US. at 73.
Rather, the New York Times rule of actual malice re-
directs the focus of inquiry from the common law’s em-
phasis on the defendant’s attitude toward the plaintiff as
the animus for defamatory publication to the defendant’s
attitude toward the truth or falsity of the content of such
a publication, See Cantrell v. Forest City Publishing Co.,
419 U.S. at 252; Time, Inc. v. Hill, 385 U.S. at 396 n.12.
In Garrison v. Louisiana, supra, the Court distinguished
between the “reckless-disregard-of-truth” component of the
New York Times standard and negligence as a basis of
defamation liability. The Court rejected the argument that
the New York Times standard contemplated punishment
33a
Opimon of Court of Appeals
for false statements not made in the reasonable belief of
their truth (“reasonable belief’ being defined as one
which “ ‘an ordinarily prudent man might be able to assign
a just and fair reason for’”, 379 U.S. at 79). This test
was deemed unacceptable because of its suggestion that
immunity from liability
disappears on proof that the exercise of ordinary care
would have revealed that the statement was false, The
test which we laid down in New York Times is not
keyed to ordinary care; defeasance of the privilege is
conditioned, not on mere negligence, but on reckless
disregard for the truth. [Jd.]
Thus, in the view of the Garrison Court, “only those false
statements made with the high degree of awareness of
their probable falsity demanded by New York Times may
be the subject of either civil or criminal sanctions.” 379
U.S. at 74.
Thereafter, in St. Amant v. Thompson, supra, the Court
provided its fullest explication of the New York Times
actual malice concept. The Court began by acknowledging
that “‘[rjeckless disregard’ . . . cannot be fully encom-
passed in one infallible definition. Inevitably its outer
limits will be marked out through case-by-case adjudica-
tion, as is true with so many legal standards for judging
concrete cases, whether the standard is provided by the
Constitution, statutes, or case law.” 390 U.S. at 730-31.
The Court continued:
These cases [i.e., New York Times, Garrison, and Curtis
Publishing Co.] are clear that reckless conduct is not
measured by whether a reasonably prudent man would
have published, or would have investigated before
34a
Opinion of Court of Appeals
publishing. There must be sufficient evidence to per-
mit the conclusion that the defendant in fact enter-
tained serious doubts as to the truth of his publica-
tion. Publishing with such doubts shows reckless dis-
regard for truth or falsity and demonstrates actual
malice. [390 U.S. at 731.]
The Court finally stated:
The defendant in a defamation action brought by
a public official cannot, however, automatically insure
a favorable verdict by testifying that he published
with a belief that the statements were true. The
finder of fact must determine whether the publicstion
was indeed made in good faith. Professions of good
faith will be unlikely to prove persuasive, for example,
where a story is fabricated by the defendant, is the
product of his imagination, or is based wholly on an
unverified anonymous telephone call. Nor will they be
likely to prevail when the publisher’s allegations are
so inherently improbable that only a reckless man
would have put them in circulation. Likewise, reck-
lessness may be found where there are obvious rea-
sons to doubt the veracity of the informant or the
accuracy of his reports. [390 U.S. at 732 (footnote
omitted).]
Actual malice may not be inferred from the mere fact
of defamatory publication alone, Hurley v. Northwest
Publications, Inc., 273 F.Supp. 967 (D. Minn. 1967), aff’d
398 F.2d 346 (8th Cir. 1968); from the character and con-
tent of a publication, Washington Post Co. v. Keogh, 125
U.S.App.D.C. 32, 36, 365 F.2d 965, 969 (1966), cert. denied,
OS BS Ale SS POST ST RSD
35a
Opinion of Court of Appeals
385 U.S. 1011 (1967); from the inherent seriousness of a
defamatory charge or accusation, id, at 36-37, 365 F.2d
at 969-70; or from mere investigatory failures, St. Amant
v. Thompson, supra at 733; New York Times, supra at
287-88; Washington Post Co. v. Keogh, supra at 39-40,
365 F.2d at 972-73. Publication with actual malice may
never be presumed, New York Times, supra at 284, but
is a matter of proof as to each defendant, Phoenix News-
papers, Inc. v. Church, 24 Ariz. App. 287, 537 P.2d 1345,
1358-61 (1965), by “clear and convincing” evidence. Gertz,
supra at 342.°
IV
We turn now to a consideration of application of the
New York Times libel rule in the context of summary
judgment. We begin with a review of traditional sum-
mary judgment principles.
Summary judgment may be granted in an action “if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits .. . show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a
matter of law.” Super. Ct. Civ. R. 56(c); Burch v. Amster-
dam Corp., D.C.App., 366 A.2d 1079, 1083-84 (1976); Yates
v. District Credit Clothing, Inc., D.C. App., 241 A.2d 596,
598 (1968). The burden of demonstrating “the absence of
any factual issue” is borne by the moving party. Burch
v. Amsterdam Corp., supra at 1084; Yates v. District Credit
5 As postulated by the Supreme Court, the actual malice test
erects a formidable barrier to recovery to the public figure-public
official class of defamation plaintiffs. Few such plaintiffs have suc-
cessfully met this rigorous standard of proof. See, e.g., cases cited
in Eaton, supra at 1375 n. 113.
36a
Opinion of Court of Appeals
Clothing, Inc., supra at 598. To survive the summary judg-
ment motion, “the opposing party need only show that
there is sufficient evidence supporting the claimed factual
dispute to require a jury or judge te resolve the parties’
differing versions of the truth at trial.” International
Underwriters, Inc, v. Boyle, D.C.App. 365 A.2d 779, 782
(1976).
The court’s role, therefore, is not “to resolve any fact
issues”, id. at 782, but rather merely to see if “the record
. . . demonstrate[s] that there is no issue of fact from
which a jury could find” for the nonmoving party. Time,
Inc. v. McLaney, 406 F.2d 665, 567 (5th Cir.), cert. denied,
395 U.S. 922 (1969).
Since the moving party carries the burden of proving
no genuine issue of fact in dispute, “the material lodged
in support of the motion must be viewed in the light most
favorable to the opposing party.” International Under-
writers, Inc. v. Boyle, supra at 782; Adickes v. Kress &
Co., 398 U.S. 144, 157 (1970); United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962). If the offered evidence and
its inferences would permit the factfinder to hold for the
nonmoving party under the appropriate burden of proof,
the motion for summary judgment should be denied. The
burden of proof varies with the nature of the civil action
being litigated. For example, in a negligence action, plain-
tiff at trial must prove each element of the claim by a
preponderance of the evidence, see Danzansky v. Zimbalist,
70 App.D.C. 234, 105 F.2d 457 (1939), and in an action
for fraud, plaintiff must prove each element of the claim
by clear and convincing evidence. Bennett v. Kiggins,
D.C.App., 377 A.2d 57 (1977), cert. denied, 434 U.S. 1034
(1978). However, regardless of the nature of the civil
— ee eee
37a
Opinion of Court of Appeals
action, the function of the trial court remains the same
when ruling on a motion for summary judgment.
Where . . . it is plain that the record has been fully
developed by depositions and affidavits on a motion
for summary judgment, and such record demonstrates
that, construing all of the facts and inferences to be
drawn therefrom in favor of the party against whom
the judgment is entered, he would not be entitled to
have a jury verdict stand, we have not hesitated to
hold that the grant of summary judgment is proper.
[Time, Inc. v. McLaney, supra at 571-72].
In sum, a motion for summary judgment should be
granted if (1) taking all reasonable inferences in the light
most favorable to the nonmoving party, (2) a reasonable
juror, acting reasonably, could not find for the nonmoving
party, (3) under the appropriate burden of proof.* This
test requires the trial judge to view the case propounded
by the party opposing the motion for summary judgment
and to determine, from that perspective, whether that
party’s case is adequate. If the facts, construed in a
light most favorable to the party opposing the motion,
and the inferences from those facts, would not entitle the
party opposing the motion to have a favorable jury ver-
dict sustained, then the motion should be granted.
Proper utilization of the summary judgment tool facil-
itates the orderly process of judicial administration. Be-
* Indeed, the trial court employs the same procedure in several
contexts such as a motion for directed verdict and a motion for a
judgment notwithstanding the verdict. The court must determine
if a reasonable juror, acting reasonably, could find for the non-
moving party under the applicable burden of proof. See 6 Moore’s
FEDERAL Practice 756.04 [2] at 74-76; 10 Wricnr & Mier,
FEDERAL PRACTICE AND PROCEDURE: CrviL § 2713, at 406-07.
38a
Opinion of Court of Appeals
cause it operates pretrial, summary judgment provides an
effective mechanism for the prompt resolution of actions
in which judgment may be rendered as a matter of law,
there being no material factual dispute. It thereby avoids
the needless expenditure, both by the courts and by the
parties, of valuable resources in unnecessary trials, and
mitigates the potential for misuse of the legal process by
a party to harass adverse parties or to coerce them into
settlement, See 6 Moorr’s Feperan Practice 7 56.04 [1]
at 63; 10 Wricut & Mmuer, Feperan Practice anp Pro-
CEDURE: Crvin § 2712, at 370-72.
These considerations assume greater significance in the
context of public official-public figure libel actions because
of their potential for infringement on First Amendment
freejoms. In a leading libel case, Washington Post Co.
v. Keogh, supra, the United States Court of Appeals for
the District of Columbia observed in this regard:
In the First Amendment area, summary procedures
are even more essential. For the stake here, if harass-
ment succeeds, is free debate. One of the purposes
of the Times principle, in addition to protecting per-
sons from being cast in damages in libel suits filed
by public officials, is to prevent persons from being
discouraged in the full and free exercises of their First
Amendment rights with respect to the condnct of their
government. The threat of being put to the defense of
a lawsuit brought by a popular public official may be
as chilling to the exercise of First Amendment free-
doms as fear of the outcome of the lawsuit itself,
especially to advocates of unpopular causes. All per-
sons who desire to exercises their right to criticize
public officials are not . . . well equipped financially
39a
Opinion of Court of Appeals
... to defend against a trial on the merits. Unless
persons, including newspapers, desiring to exercise
their First Amendment rights are assured freedom
from the harassment of lawsuits, they will tend to be-
come self-censors. And to this extent debate on public
issues and the conduct of public officials will become
less uninhibited, less robust, and less wide-open, for
self-censorship affecting the whole public is “hardly
less virulent for being privately administered.” [124
U.S.App.D.C. at 35, 365 F.2d at 968 (citation
omitted). ]
See 10 Wricut & Mriuer, supra, § 2730 at 592.
Disposing of these types of libel actions at summary
judgment cures what Professor Anderson has recognized
as “[t]he serious deficiency” of the New York Times privi-
lege: “that it operates too late in the litigation process.”
Anderson, supra at 456. He argues that application of
the privilege near the outset of libel litigation better ac-
complishes the paramount purpose of the privilege—en-
hancement of public debate through reduction of the in-
centives for press self-censorship inherent in the threat
posed by potential defamation liability—and protects both
libel plaintiffs and defendants from investment in ex-
pensive litigation. Id. at 437. Nevertheless, while courts’
7 Both the relevant state and federal case law manifest a judi-
cial policy of liberal utilization of the summary judgment proce-
dure for early disposition of libel actions having First Amendment
implications. Thus, where libel plaintiffs have failed to produce
evidence from which a jury could find that publication with reckless
disregard for truth or falsity has been established by clear and
convincing proof, summary judgment has been granted for the
defendants. Meeropol v. Nizer, 560 F.2d 1061, 1064-66 (2d Cir.
1977), cert. denied, 434 U.S. 1013 (1978) : Walker v. Cahalan, 542
F.2d 681, 684 (6th Cir. 1976), cert. denied, 480 U.S. 966 (1977);
Anderson v. Stanco Sports Library, Inc., 542 F.2d 638 (4th Cir.
40a
Opinion of Court of Appeals
and commentators have emphasized the utility of sum-
mary judgment in First Amendment libel cases, the Su-
preme Court has recently sounded a note of caution in
this area. The Court recognized that “proof of ‘actual
malice’ calls a defendant’s state of mind into question,
New York Times v. Sullivan, 376 U.S. 254 (1964), and
does not readily lend itself to summary disposition.”
Hutchinson v. Proxmire, 47 U.S.L.W. 4827, 4830 n.9
(June 26, 1979). See Poller v. Columbia Broadcasting
1976); Perry v. Columbia Broadcasting System, Inc., 499 F.2d
797, 799-800 (7th Cir.), cert. denied, 419 U.S. 883 (1974); Cer-
vantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied,
409 U.S. 1125 (1973) ; Treutler v. Meredith Corp., 455 F.2d 255
(8th Cir. 1972) ; Gospel Spreading Church v. Johnson Publishing
Co., 147 U.S.App.D.C. 207, 454 F.2d 1050 (1971) ; Cerrito v. Time,
Inc., 449 F.2d 306 (9th Cir. 1971); Time, Inc. v. Johnston, 448
F.2d 378 (4th Cir. 1971) ; Miller v. News Syndicate Co., 445 F.2d
356 (2d Cir. 1971) ; Medina v. Time, Inc., 439 F.2d 1129 (1st Cir.
1971) ; Dacey v. Florida Bar, Inc., 427 F.2d 1292 (5th Cir. 1970) ;
Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970) ;
Time, Inc. v. McLaney, supra; United Medical Laboratories, Inc.
v. Columbia Broadcasting System, Inc., 404 F.2d 706 (9th Cir.
1968), cert. denied, 394 U.S. 921 (1969); Thompson v. Evening
Star Newspaper Co., 129 U.S.App.D.C. 299, 394 F.2d 774, cert.
denied, 393 U.S. 884 (1968); Walker v. Politzer Publishing Co.,
394 F.2d 800 (8th Cir. 1969); Washington Post Co. v. Keogh,
supra; Hoffman v. Washington Post Co., 433 F. Supp. 600 (D.D.C.
1977), aff'd mem., 188 U.S.App.D.C. 200, 578 F.2d 442 (1978);
Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F.
Supp. 947 (D.D.C. 1976); Buchanan v. Associated Press, 398 F.
Supp. 1196 (D.D.C. 1975); Alpine Construction Co. v. Demaris,
358 F. Supp. 422 (N.D. Ill. 1973) ; LaBruzzo v. Associated Press,
353 F. Supp. 979 (W.D. Mo. 1973) ; Kent v. Pittsburgh Press Co.,
349 F. Supp. 622 (W.D. Pa. 1972); Phoenix Newspapers, Inc. v.
Church, supra; Woolbright v. Sun Communications, Inc., 480
S.W.2d 864 (Mo. 1972); Barbetta Agency, Inc. v. Evening News
Publishing Co., 135 N.J. Super. 214, 343 A.2d 105 (1975); Trails
West, Inc. v. Wolff, 32 N.Y.S.2d 863, 298 N.E.2d 52 (1973); Cline
v. Brown, 24 N.C. App. 209, 210 S.E.2d 446 (1974), cert. denied,
286 N.C. 412, 211 S.E.2d 793 (1975) ; Washington v. World Pub-
lishing Co., 506 P.2d 913 (Okla. 1978).
4la
Opinion of Court of Appeals
System, 368 U.S. 464, 473 (1962). See generally, Her-
bert v. Lando, 99 S.Ct. 1635 (1979). Because of the com-
pelling First Amendment interest at stake, we regard sum-
mary judgment as a useful method of disposing of con-
stitutional libel actions—where appropriate.
The crux of the case before us is the correctness of
the procedure utilized by the trial court in ruling on the
appellee’s motion for summary judgment. All the parties
concede that under the applicable substantive law, a pub-
lic figure libel plaintiff must present clear and convincing
proof of actual malice in order to prevail at trial. Gertz,
supra at 342. What the parties vigorously contest is the
requisite showing a public figure libel plaintiff must make
to defeat a motion for summary judgment. Thus, the focus
of the issue presented herein is the standard used by the
trial court in reviewing the appellee’s motion. The trial
court stated the standard it applied as follows:
In considering a motion for summary judgment, the
first task of the Court is the determination of whether
there exist any genuine issues of material fact, Rule
56(c), Civil Rules of the Superior Court. To demon-
strate the existence of such issues, a public figure
plaintiff in a libel action must show that the evidence
and permissible inferences, when viewed as favorably
as possible for the plaintiff, establish with convincing
clarity that the defendants acted with actual malice.
The trial court thus appears to have held that after
viewing the evidence in its light most favorable to the
plaintiff, the court must be convinced that actual malice
has been proven with convincing clarity to defeat a
motion for summary judgment. Finding that the evidence
42a
Opinion of Court of Appeals
failed to meet that standard, the trial court granted sum-
mary judgment for appellees.
Appellees argue that the trial court was correct in rul-
ing that, on a defendant’s motion for summary judgment,
a public figure libel plaintiff must prove actual malice with
convincing clarity to the trial judge in the first instance
in order to demonstrate the existence of a genuine issue
for trial. Conceding that this is not normal summary
judgment procedure, appellees maintain that compliance
with this procedure is constitutionally mandated by the
New York Times rule and is consistent with the policy
enunciated in Keogh favoring early resolution of libel
cases. Moreover, because modern discovery rules afford
plaintiffs ample opportunity to probe for evidence, early
disposition of libel cases does not work a disadvantage to
such plaintiffs in the development of the merits of their
cases.
Appellant contends that the standard of review enun-
ciated by the trial court is erroneous in that it requires a
public figure libel plaintiff to prove actual malice to the
trial judge before he may prove it to the jury. Appellant
further contends that this requirement is neither proper
under the traditional summary judgment proceeding nor
mandated by New York Times. According to appellant,
the standard as set forth by the trial court requires that
a public figure libel plaintiff effectively prove his case at
least twice and perhaps as many as four times in the trial
court: (1) at summary judgment; (2) at the close of the
plaintiff’s case (3) at the close of the evidence; and (4)
at post-trial defense motions in the event of a plaintiff
verdict. Appellant contends that such a procedure permits
the trial court to invade the traditional province of the
43a
Opinion of Court of Appeals
jury as fact-finder and thus constitutes an impermissible
infringement on his Seventh Amendment right to a jury
trial. By adopting the rigorous requirement of clear and
convincing proof of malice, he maintains, the Supreme
‘Court did not intend to disturb the traditional allocation of
functions between the court as expounder of law and the
jury as factfinder. In sum, appellant concludes that the
normal summary judgment procedures apply in public fig-
ure libel actions.
Although the cases are legion in which libel claims have
been decided at summary judgment,’ our research reveals
nonetheless that there are conflicting views on the precise
procedure to be used by the trial court at the summary
judgment stage. These conflicting views stem from differ-
ing interpretations of the Supreme Court’s directive in
New York Times v. Sullwan:
In cases where that line [between protected and non-
protected speech] must be drawn, the ruie is that we
“examine for ourselves the statements in issue and the
circumstances under which they were made to see...
whether they are of a character which the principles
of the First Amendment... protect.” ... We must
‘make an independent examination of the whole rec-
ord” ... so as to assure ourselves that the judgment
does not constitute a forbidden instrusion on the field
of free expression. [376 U.S. at 285 (citations and
footnotes omitted).]°
8 See note 7 supra.
® See also Time, Inc. v. Pape, 401 U.S. at 284; Greenbelt Coopera-
tive Publishing Ass’n v. Bresler, 398 U.S. at 11 (reaffirming appel-
late court review function in this area) ; Beckley Newspapers Corp.
v. Hanks, 389 U.S. at 82-83.
44a
Opinion of Court of Appeals
Courts have used this directive in cases involving First
Amendment defenses to argue that, in determining whether
the plaintiff has sustained his burden at summary judg-
ment, the trial court, after making an independent exam-
ination of the evidence, must be convinced that there has
been a showing of actual malice with convincing clarity.
In making this examination, the argument follows, the
court must weigh the evidence, draw reasonable inferences,
and assess the credibility of witnesses. Such a view was
expounded in a concurring opinion in Wasserman v.
Times, Inc., 138 U.S.App.D.C. 7, 9-10, 424 F.2d 920, 922-23,
cert. denied, 398 U.S. 940 (1970), where Circuit Judge (now
Chief Judge) J. Skelly Wright outlined what he deemed
to be the proper procedure for resolution of the actual
malice issue:
In my judgment New York Times Co. v. Sullivan
makes actual malice a constitutional issue to be de-
cided in the first instance by the trial judge applying
the Times test of actual knowledge or reckless disre-
gard of the truth... . Unless the court finds, on the
basis of pretrial affidavits, depositions or other docu-
mentary evidence, that the plaintiff can prove actual
malice in the Times sense, it should grant summary
judgment for the defendant... .
If the case survives the defendant’s summary judg-
ment motion, the trial court at the close of the plain-
tiff’s case must decide whether actual malice has been
shown with “convincing clarity.” In making this judg-
ment.the court will judge the credibility of the wit-
nesses and draw its own inferences from the evidence.
If the trial is permitted to proceed, the court will be
called upon again to make a judgment on the actual
te
45a
Opinion of Court of Appeals
malice issue at the close of all the evidence. If the
motion for a directed verdict at this stage of the trial
is denied, the actual malice issue, along with the other
issues, is then submitted to the jury under the Times
instruction without any indication from the court or
counsel that the court has decided that the evidence
shows actual malice with “convincing clarity.” [138
U.S.App.D.C. at 9, 424 F.2d at 922 (footnotes and
citations omitted. ]*°
In Judge Wright’s view, First Amendment free press
considerations necessitate a departure from normal sum-
mary judgment procedures in two distinct ways. First,
rather than view this evidence in a light most favorable
to the plaintiff, Judge Wright would have the trial judge
evaluate all the evidence in its most reasonable light.
Second, rather than ask whether a reasonable jury could
find actual malice with convincing clarity, Judge Wright
would require the trial judge to find actual malice with
convincing clarity if plaintiff is to survive a summary
judgment attack. The Wasserman approach thus consti-
tutes a two-prong departure from normal summary judg-
ment law.
An examination of public figure libel cases subsequent
to the Wasserman decision reveals that the specialized
procedure for the handling of public figure libel cases
suggested in Wasserman has met with mixed results in
other cases. See Faddell v. Minneapolis Star & Tribune
Co., 557 F.2d 107 (7th Cir.), cert. denied, 434 U.S. 966
(1977); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858
(5th Cir. 1970); Hoffman v. Washwmgton Post Co., 433
10 Judge Spottswood W. Robinson III, concurred in Judge
Wright’s opinion.
46a
Opinion of Court of Appeals
F. Supp. 600 (D.D.C. 1977), aff'd mem., 188 U.S.App.
D.C. 200, 578 F.2d 442 (1978); Olwer v. Village Voice,
Inc., 417 F. Supp. 235, 237 (S.D.N.Y. 1976); Martin
Marietta Corp. v. Evening Star Newspaper Co., 417 F.
Supp. 947 (D.D.C. 1976); Buchanan v. Associated Press,
398 F. Supp. 1196 (D.D.C. 1975) ; Lewis v. Reader’s Digest
Ass’n, 366 F. Supp. 154 (D. Mont. 1973); Curran v. Phila-
delphia Newspapers, Inc., —— Pa. ——, 395 A.2d 1342
(1978).
A second view of the procedure the trial court should
use in libel actions is found in Guam Federation of Teach-
ers, Local 1581 v. Ysrael, 492 F.2d 438 (9th Cir.), cert.
denied, 419 U.S. 872 (1974). In that case, a libel action
brought by a union and seven of its officers, all public
figures, the trial court granted the defendant’s motion for
a directed verdict after presentation of the plaintiffs’ case
at trial to a jury. The Court of Appeals reversed. Al-
though that case involved a motion for a directed verdict
after presentation of the plaintiff[s’] case at trial, the
theory underlying a directed verdict and summary judg-
ment is sufficiently analogous that we may properly con-
sider the views expressed by the Ninth Circuit therein in
our analysis. See note 6, supra.
The Guam court acknowledged that the presence of First
Amendment considerations in libel actions necessitated
closer judicial scrutiny of the evidence adduced by plain-
tiffs in summary judgment, directed verdict, and judg-
ment notwithstanding the verdict procedures. However,
it rejected the Wasserman thesis that a trial court, weigh-
ing the evidence and drawing reasonable inferences there-
from, must first determine whether actual malice is dem-
onstrated with “convincing clarity” before the case can
proceed to the jury. The court stated:
47a
Opinion of Court of Appeals
We think that in a libel case, as in other cases, the
party against whom a motion for summary judgment,
a motion for a directed verdict, or a motion for a
judgment notwithstanding the verdict is made is en-
titled to have the evidence viewed in the light most
favorable to him and to all inferences that can prop-
erly be drawn in his favor by the trier of fact. We
think, too, that in such cases it is not only not the
duty of the judge, or of this court of appeal, to weigh
the credibility of the evidence, or to draw inferences
in favor of the moving party (except, of course, when
no contrary inference can legitimately be drawn), but
that neither the judge nor this court on appeal has
the authority to weigh credibility or to choose among
legitimate inferences in such cases.
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 exam-
ined 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 con-
sidered, measures up to the New York Times standard,
the case is one for the jury, and it is error to grant
a directed verdict, as the trial judge did in this case.
[492 ¥.2d at 441 (emphasis in original).]™
11 Accord, Maheu v. Hughes Tool Co., 569 F.2d 459, 464 (9th
Cir. 1978); Dixson v. Newsweek, Inc., 562 F.2d 626, 631 (10th
Cir. 1977) ; Alioto v. Cowles Communications, Inc., 519 F.2d 777,
780 (9th Cir.), cert. dented, 423 U.S. 930 (1975); Phoenix News-
papers, Inc. v. Church, supra; Dacey v. Connecticut Bar Ass’n,
170 Conn. 520, 368 A.2d 125, 135-36 (1976); Bandelin v. Pietsch,
98 Idaho 337, 563 P.2d 395, 398-99, cert. denied, 434 U.S. 891
(1977) ; Cochran v. Indianapolis Newspaper, Inc., —— Ind. App.
——, 372 N.E.2d 1211, 1222-23 (1978); Stone v. Essex County
Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161, 175 & n.11
(1975).
48a
Opinion of Court of Appeals
The import of the Guam decision is that the usual pro-
cedural rules should govern summary judgment and that
a libel plaintiff need nct prove malice twice—-first to the
judge, then to the jury. According to this view the func-
tion of the trial court on such a motion is not to weigh
proof and make independent findings, but rather to de-
termine whether or not the plaintiff has demonstrated a
genuine issue of material fact from which a jury, using
the appropriate burden of proof—‘“clear and convincing”
evidence—could find publication of a defamatory falsehood
with actual malice.
A third view on the question under consideration has
been suggested by the Supreme Court of Washington. In
Chase v. Daily Record, Inc., 83 Wash. 2d 37, 515 P.2d 154
(1973) (en banc), the court reversed the trial court’s
grant of summary judgment for a defendant in a libel
action brought by a county commissioner. The court dis-
cussed the issue of a public official libel plaintiff’s burden
of proof as to the issue of malice at the summary judg-
ment stage. In the court’s view, the function of the trial
judge at summary judgment in libel actions does not dif-
fer from that which the judge performs in other civil
actions. On such a motion in libel actions, the trial court’s
role is the limited one of determining the existence of a
material factual dispute (from which reasonable infer-
ences supportive of a jury finding of malice could be
drawn); it does not encompass the resolution of factual
disputes. 515 P.2d at 157.
However, in recognition of the First Amendment impact
of defamation actions brought by public officials, the Chase
court held that the summary judgment procedure in such
actions should operate as a more effective buffer between
49a
Opinion of Court of Appeals
the exercise of free speech-free press guarantees and the
threat of defamation liability.
Thus the court adopted a rule requiring that such libel
plaintiffs establish a “prima facie” case at summary judg-
ment in order to advance to the jury:
In defamation actions by public officials, although the
summary judgment procedure is basically the same,
we are convinced the decisions of the United States
Supreme Court have added. a new facet, measurement,
or dimension which must now be considered and re-
solved by the trial courts. [I]n such defamation ac-
tions, if the trial judge at the summary judgment
stage determines that the plaintiff has offered evidence
of a sufficient quantum to establish a prima facie case,
and the offered evidence can be equated with the stan-
dard or test of “convincing clarity” prescribed by
United States Supreme Court decisions, the motion
for summary judgment should be denied. [515 P.2d
at 157-58 (footnote and citation omitted) (emphasis
in original).]
Accord, Adams v. Frontier Broadcasting Co., 555 P.2d 556
(Wyo. 1976) (adopting the Chase standard).
At first blush it would appear that the rule articulated
by the Washington Supreme Court sets forth a new prin-
ciple controlling summary judgment procedure in consti-
tutional defamation actions that is distinct from—and
perhaps more rigorous than—that which is operative in
“run-of-the-mill lawsuits.” 515 P.2d at 157. However, upon
closer scrutiny, we think it is apparent that the Chase
standard is functionally equivalent to the normal summary
judgment test.
50a
Opinion of Court of Appeals
The term “prima facie case” is a technical term which
traditionally has been used with reference to the allocation
of “burden of proof” between litigants in legal actions.
The general] rule is that a party asserting or pleading an
issue has the burden of proof—+.e., burden of persuasion
. —and its constituent burden of production—+.e., the initial
burden of going forward with evidence—as to each material
element of such issue in order to prevail, 31A C.J.S. Evi-
dence § 104 at 168 (1964). A party satisfies his burden of
production with respect to an issue material to his case
when he has made out a “prima facie” case as to such issue
—i.e., a sufficient quantum of evidence which, if credited,
would permit judgment in his favor unless contradicted
by credible evidence offered by the opposing party. Bailey
v. Zlotnick, 77 U.S.App.D.C. 84, 85, 133 F.2d 35, 36 (1942)
(motion for directed verdict). The establishment of a
prima facie case by the party bearing the burden of per-
suasion as to an issue shifts the burden of producing con-
tradictory evidence to the adverse party. The burden of
evidentiary production shifts from side to side during the
course of the trial as each party introduces evidence suffi-
cient to satisfy the test. See generally, 31A C.J.S. Evidence —
supra, § 110 at 184-88.
The same rules are applicable in a motion for summary
judgment. On such motion the well-settled rule is that the
moving party bears the burden of proving that no genuine
issue as to any material fact exists and that he is entitled
to judgment as a matter of law. The movant may discharge
his burden of proof by demonstrating that if the case pro-
ceeded to trial his opponent could produce no competent
evidence to support a contrary position. 10 Wricut &
Mur, supra, § 2727, at 531. A prima facie showing by
the movant for summary judgment—+.e., the production of
we ett ~ re i eee amet IS one Oe A he em
a
5la
‘Opinion of Court of Appeals
enough evidence to demonstrate such party’s entitlement
to a judgment if evidence were uncontroverted at trial—
shifts the burden of producing evidence to the party oppos-
ing the motion. Summary judgment should be granted to
the movant unless the opposing party offers competent
evidence admissible at trial showing that there is a genuine
issue as to a material fact. Id. at 536-37.
Once the movant has made the requisite showing,
the issue of material fact required by Rule 56(c) to be
present to entitle [the opposing] party to proceed to
trial is not required to be resolved conclusively in favor
of the party asserting its existence; rather, all that is
required is that sufficient evidence supporting the
claimed factual dispute be shown to require a jury or
judge to resolve the parties’ differing versions of the
truth at trial. [First National Bank of Arizona v.
Cities Service Co., 391 U.S. 253, 288-89 (1968).]
In practical effect, this rule requires more of the opposing
party than the mere demonstration of disputed factual
issues. Bushie v. Stenocord Corp., 460 F.2d 116, 119 (9th
Cir. 1972). “[T]he showing of a ‘genuine issue for trial’
is predicated upon the existence of a legal theory which
remains viable under the asserted version of the facts, and
which would entitle the party opposing the motion (assum-
ing his version to be true) to a judgment as a matter of
law.” McGuire v. Columbia Broadcasting System, Inc., 399
F.2d 902, 905 (9th Cir. 1968). A plaintiff opposing a de-
fense motion for summary judgment, in order to make the
evidentiary showing that will permit him to advance to trial
must “show that he has a plausible ground for the main-
tenance of the cause of action.” Horne v. Federal Reserve
Bank of Minneapolis, 344 F.2d 725, 729 (8th Cir. 1965) ;
— a = a
52a
Opinion of Court of Appeals
Repsold v. New York Life Insurance Co., 216 F.2d 479, 483
(7th Cir. 1954); Pen-Ken Gas & Oil Corp. v. Warfield Na-
tural Gas Co., 137 F.2d 871, 877 (6th Cir. 1943). Such party
in essence must produce enough evidence to make out a
prima facie case in support of his claim.
Hence, to say that libel plaintiffs opposing a defense
motion for summary judgment must establish a prima facie
case in order to defeat the motion, as the Chase rule states,
appears to impose no greater burden on such plaintiffs
than they are normally required to meet. The Chase rule
seems to be simply a restatement of the normal standard
with which a party opposing summary judgment must
comply. We equate the Chase principal with the Guam
principle—there appears to be, at best, a “distinction with-
out a difference” between normal summary judgment doc-
trines and the “prima facie” doctrine enunciated in Chase.
We are unpersuaded by Judge Wright’s two-prong ap-
proach or by other courts’ variations upon it. We feel
either prong of the Wasserman procedure—and perforce
both prongs in conjunction—impermissibly denegrates the
traditional roles of judge and jury. Furthermore, we glean
from New York Times and subsequent decisions that the
Court envisions normal function of the jury in libel actions
as in other civil actions. See Wolston v. Reader’s Digest
Ass’n, 47 U.S.L.W. 4840, 4841 n.3 (June 26, 1979) ; Hutch-
inson v. Proxmire, supra at 4830 n.9; St. Amant v. Thomp-
son, 390 U.S. at 732; Beckley Newspapers Corp. v. Hanks,
389 U.S. at 84-85; Time, Inc. v. Hill, 385 U.S. at 391; Rosen-
blatt v. Baer, 383 U.S. at 87. Thus, we are of the opinion
that at summary judgment the plaintiff is not required to
prove to the court “actual malice with convincing clarity”
as he must do at trial because that would of necessity re-
quire a weighing of evidence by the court. We find no hint
a. eer e ee an
53a
Opinion of Court of Appeals
anywhere from the Supreme Court, that the judge must
himself be convinced. Rather, we are in agreement with
the Guam court, that the plaintiff need only present evi-
- dence which shows a genuine issue of material fact from
which a reasonable jury could find actual malice with con-
vincing clarity.
Although the Supreme Court has stated that protection
of First Amendment freedoms may require special safe-
guards in these types of actions, those safeguards are em-
bodied in the rather exacting standard of clear and convinc-
ing proof of actual malice. As the Supreme Court observed
in Gertz:
This standard [of clear and convincing proof of
malice] administers an extremely powerful antidote to
the inducement to media self-censorship of the com-
mon-law rule of strict liability for libel and slander.
And it exacts a correspondingly high price from the
victims of defamatory falsehood. [418 U.S. at 342.]
The Times standard which requires proof of actual mal-
ice—deliberate falsification or reckless disregard for the
truth—with convincing clarity, itself intermediate between
the normal “preponderance of the evidence” civil standard
and the “beyond the reasonable doubt” criminal standard,
imposes heavier burden of proof on a plaintiff in these
actions than in the usual civil action. See footnote 5 supra.
This standard determines the materiality of disputed is-
sues of fact. There must be proof from which a reasonable
jury acting reasonably could find actual malice by clear and
convincing evidence before a plaintiff can survive summary
judgment. If there are disputed facts which if resolved in
the plaintiff's favor would not establish actual malice with
54a
Opinion of Court of Appeals
convincing clarity, then they are not material and judgment
will be granted for the defendant. Bandelin v. Pietsch, 98
Idaho 337, 563 P.2d 395, 399 (1977). See Guam Federation
of Teachers, Local 1581 v. Ysrael, supra; Time, Inc. v.
McLaney, supra.
Thus, while we agree that the First Amendment re-
quires a public figure libel plaintiff to bear a heavier burden
than is required for most other civil plaintiffs and concur
in the underlying thesis of Keogh and Wasserman that the
summary judgment proceeding may properly serve as a
focal point for the resolution of libel actions, we are con-
vinced that the special protection afforded press defendants
in public figure libel actions does not necessitate a dilution
of the Seventh Amendment by skewing the roles of judge
and jury in summary judgment proceedings. It is en-
grained in American jurisprudence that the court may
resolve issues of fact or weigh evidence at the summary
judgment stage in norma] circumstances. We hold that the
same principles applicable to normal summary judgment
motions are applicable to such motions when made in a pub-
lic figure libel action. See Guam Federation of Teachers,
Local 1581 v. Ysrael, supra at 441-43; Time, Inc. v. Raga-
no, 427 F.2d 219, 221 (5th Cir. 1970) ; Hotchner v. Castillo-
Puche, 404 F. Supp. 1041, 1050 (S.D.N.Y. 1975); Maloney
& Sons, Inc. v. E, W. Scripps Co., 43 Ohio App. 2d 105, 334
N.E.2d 494, 499, cert. denied, 423 U.S. 883 (1975). The
question to be answered by the trial court must and will
remain the same—Is there a genuine issue of material fact
from which a reasonable jury acting reasonably could find
actual malice with convincing clarity? Thus, the court ex-
amines the evidence, taking all permissible inferences and
resolving questions of credibility in plaintiff’s favor to
determine whether a reasonable jury acting reasonably
55a
Opinion of Court of Appeals
could find actual malice with convincimg clarity. The ques-
tion to be resolved at summary judgment is whether plain-
tiff’s proof is sufficient such that a reasonable jury could
find malice with convincing clarity, and not whether the
trial judge is convinced of the existence of actual malice.
V
Appellees de Toledano and Copley Press moved sepa-
rately for summary judgment on the ground that appellant
could not demonstrate publication of the allegedly libelous
column with actual malice. We consider the trial court’s
grant of summary judgment as to each of the defendant-
appellees in turn.
A. Appellee Ralph de Toledano
Appellee’s claim on the motion for summary judgment,
renewed now on appeal, is that the statement in the Janu-
ary 1975 column giving rise to this action—+.e., that Senator
Ribicoff demonstrated in the subcommittee report that
appellant falsified and distorted evidence to make his case
against the Corvair—represents a legitimate interpretation
of the gist of this lengthy government document, and thus
was protected by the New York Times privilege. Time, Inc.
v. Pape, supra, Consequently, he says, he was entitled to
judgment as a matter of law.
Appellee’s deposition and affidavit reveal that prior to
writing the column at issue, he authored a book about ap-
pellant entitled Hir & Run: Tue Rise anp Faux or Ratpx
Naver. Before writing the book he did a “tremendous
amount of reading and research” on appellant for a period
of six months. The Ribicoff report was among the source
materials used in preparation of the book. By the time he
56a
Opinion of Court of Appeals
wrote the January 1975 column, he had read the report
many times, and consulted it when he wrote the column.
He stated then, as he alleges now, that the statement at
issue here was based on his reading of the entire Ribi-
coff report, and was also “conditioned on” other character-
izations of the report which he had read (e.g., an article
published in Barron’s on September 24, 1973, written by
Barron’s editor Robert Bleiberg, and appellant’s response
thereto and a further commentary by Bleiberg on appel-
lant’s response, both of which appeared in the March 23,
1974 issue of Barron’s). Thus, according to appellee, his
statement reflects a summation of the report which was
based on his interpretation of the “cumulative effect” of its
totality. The body of the report, he maintains, is reason-
ably susceptible to a number of possible interpretations
regarding appellant’s conduct of his anti-Corvair campaign,
despite the subcommittee’s introductory statement that ap-
pellant had acted in good faith in making the charges
against GM and the Corvair. The presence of this “good
faith” finding when viewed in the context of the complete
document, he asserts, at most demonstrated that his inter-
pretation of the document was an error in judgment. It does
not negate the inference that appellant falsified and dis-
torted evidence which he drew from the report’s entire text.
His statement, he avers, reflects a deliberate and a ration-
ally defensible choice among a range of possible rational
interpretations. Adoption of a rational explication of an
ambiguous document, even if erroneous, does not constitute
clear and convincing evidence sufficient to support a judge-
ment of publication with actual malice. Time, Inc. v. Pape,
supra. If, in fact, the report can reasonably be construed in
the manner adopted in the column, and he honestly believed
in the accuracy and veracity of this characterization of the
57a
Opinion of Court of Appeals
document, he declares, any inference of publication of the
statement with knowledge of its falsity or with reckless
disregard therefor would be precluded.
In opposing appellee’s motion, appellant does not dispute
the facts developed on the record but asserts that reason-
able inferences of actual malice could be drawn therefrom
and that a question for the jury to decide thereby existed.
Appellant’s principal contention is that an inference of
malicious publication could legitimately be drawn from de
Toledano’s disregard of the subcommittee’s “good faith”
finding as to appellant’s conduct. Appellant’s position in
this regard is two-pronged. First, appellant contends, the
statement was a direct allegation by de Toledano himself
that appellant had falsified and distorted, not a summation
of what others had said concerning appellant. Appellee’s
own deposition testimony, appellant argues, gives rise to
such a conclusion. In response to an inquiry as to what
meaning he intended to convey by this statement, see gen-
erally, Herbert v. Lando, supra, de Toledano stated: “I
intended to tell the reader that Mr. Nader had lied and
twisted facts to make a case.” De Toledano further ad-
mitted that he was aware of the subcommittee’s express
declaration that Nader’s charges against GM and the Cor-
vair “were made in good faith based on the information
available to him” when he made the statement. The sub-
committee’s “good faith” finding with regard to appellant
demonstrates the falsity of the de Toledano statement that
he falsified and distorted evidence, appellant contends. De
Toledano’s utterance of such a falsehood, in spite of his
cognizance of an express conclusion to the contrary by the
subcommittee, supports an inference that he published with
knowledge of its falsity, according to appellant.
58a
Opinion of Court of Appeals
Secondly, appellant asserts that even if the de Toledano
statement itself could be construed as a presentation of his
interpretation of the report, a reasonable inference of mal-
ice may still be derived from the presence of the commit-
tee’s good faith finding. Viewed as such, the fault with the
de Toledano column lies in its attribution of the assertion
that appellant falsified and distorted evidence to Senator
Ribicoff. Because of appellee’s knowledge of the commit-
tee’s explicit finding to the contrary, he could not properly
state that the Ribicoff subcommittee had reached such a
conclusion, A knowingly false attribution of a libelous
statement to another is sufficient in itself, he claims, to sus-
tain a jury finding of actual malice.
Appellant additionally maintains that assuming the of-
fending language is not construed as an attribution of the
assertion that appellant falsified and distorted evidence to
the Senator, but rather is regarded as a direct statement of
de Toledano’s own interpretation of the report, an infer-
ence of malice is permissible. According to appellant, given
the presence of the subcommittee’s “good faith” conclusion
in the report, the report is not rationally susceptible to ap-
pellee’s proffered interpretation, thus precluding appellee’s
reliance on Time, Inc. v. Pape, supra.
In granting summary judgment in favor of appellee, the
trial court ruled that the allegedly libelous statement repre-
sented a rational interpretation of an ambiguous document
and thus was privileged under Pape.
We disagree with this ruling, and find appellee’s reliance
on the Pape case misplaced. In that case, Time magazine
carried an article about a report called “Justice” that was
issued in November 1961 by the United States Commission
on Civil Rights. Part of the report addressed the issue of
police brutality, and related specific instances of reported
an Sal
59a
Opinion of Court of Appeals
police violence against private citizens. One such item
described the allegations which Monroe had made in a
complaint filed in an action against Pape, Deputy Chief
of Detectives in the Chicago Police Department, and other
police officials charging them with violation of the Federal
Civil Rights Act. The complaint recounted the events of a
police encounter which Monroe alleged constituted brutality
violative of his federally guaranteed civil rights. The
Time article quoted from the Commission report’s sum-
mary of Monroe’s complaint but failed to indicate that
these statements were allegations asserted in a legal com-
plaint rather than independent findings of the Commission.
Pape sued Time for libel on the basis of the omission of the
word “alleged” or “allegations” from the article.
The major flaw which the Court discerned in the Tume
article was not its mere publication of the incident itself
but the attribution of the Monroe allegations “to an
authoritative official source” when there had been no au-
thoritative official determination of the merit of the
charges. The omission of the word “allegation” by Time
presented the Monroe incident as a certain fact reported
by the Commission report instead of a mere allegation.
The source for the Time article—the Commission report—
presented a picture of police violence against ordinary
citizens that rendered it newsworthy. However, in the
Court’s view, “the attitude of the Commission toward the
factual verity of the episodes recounted was anything but
straightforward.” 401 U.S. at 286. The report did not
make clear whether or not the Commission believed that
these incidents actually occurred. Given the ‘ambiguous
manner in which the Commission presented the accounts
of the incidents, and the fact that these accounts of in-
cidents of police brutality provided the only evidence the
60a
Opinion of Court of Appeals
Commission set forth to support its subsequent findings
and recommendations, the Court stated that it was logical
to conclude, as Time did, that “the Commission must have
believed that the incidents described had in truth occurred.”
Id. at 289. Because the Commission Report was ambiguous
and susceptible to several interpretations as to the truth of
the events reported, the Court concluded, “Time’s conduct
reflected at most an error of judgment,” id. at 292; its
conclusion was a permissible one, given the range of in-
ferences that were possible due to the ambiguities of the
Commission Report. Thus, the Court held:
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 am-
biguities. The deliberate choice of such an interpreta-
tion, though arguably reflecting a misconception, was
not enough to create a jury issue of “malice” under
New York Times. To permit the malice issne to go to
the jury because of the omission of a word like “al-
leged,” despite the context of that word in the Com-
mission Report and the external evidence of the Re-
port’s overall meaning, would be to impose a much
stricter standard of liability on errors of interpreta-
tion or judgment than on errors of historic fact. [Id.
at 290.]
The subcommittee report at issue in this case differs
substantially from the Civil Rights Commission study that
was the subject of the Time article in the Pape case, for
we cannot say as a matter of law that this report possesses
the “bristling” ambiguity which characterized the Pape
civil rights report. In the “Summary” which appears at
the beginning of the Ribicoff report, the subcommittee sets
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Opinion of Court of Appeals
‘forth the primary conclusion derived from its study—e.,
that appellant’s charges with regard to GM and the Corvair
were not supported by the evidence gathered during the
investigation, and that the subject warranted no further in-
quiry by the subcommittee. Shortly thereafter, also in this
introductory section, appeared the subcommittee’s explicit
statement that appellant had acted in good faith in assert-
ing the charges which he made against the Corvair; that
the evidence available to him supported his conclusions,
and that it was therefore understandable how he reached
his conclusions. Such an explicit, unambiguous finding in
our view is inconsistent with appellee’s asserted inference
that appellant falsified and distorted evidence. In addi-
tion, in light of the subcommittee’s express conclusion to
the contrary, we do not think that an assertion that appel-
lant falsified and distorted evidence can properly be at-
tributed to Senator Ribicoff. “[A] publisher who deliber-
ately distorts [the] statements [of others] to launch a
personal attack of his own on a public figure, cannot rely
on a [First Amendment] privilege. ... In such instances
he assumes responsibility for the underlying accusations.”
Edwards v. National Audobon Society, Inc., 556 F.2d 113,
120 (2d Cir. 1977). 7
As appellee suggests, the critical issue which must be
resolved is whether the report is reasonably susceptible
of the interpretation he advances despite the subcom-
mittee’s inclusion of this statement, for if it is, his state-
ment is immune from defamation liability under the Pape
principle. Upon review of the entire document, we do not
think that the import of the subcommittee’s good faith
statement is belied by the content and tone of the body of
the report. The central theme of the report as announced
in the preliminary summary of the report—that appellant’s
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Opinion of Court of Appeals
GM-Corvair allegations were not supported by a prepon-
derance of the evidence—is developed in systematic fashion
throughout the report; the subcommittee’s analysis demon-
strates that appellant’s allegations were not borne out in
fact. However, the subcommittee had expressly stated that
the reports, documents, and other materials which appel-
lant possessed as to the whole GM-Corvair issue supported
his contentions. The subcommittee’s evaluation of the far
greater volume of data amassed during its study—a large
proportion of which had been unavailable to appellant—
suggested different conclusions from those reached by ap-
pellant. Nowhere is it intimated that appellant falsified
and distorted evidence. We do not find that the report’s
basic “tone of total neutrality,” established at the outset,
“was frequently marred ... by remarks that appeared to
indicate .. . unexpressed views,” Time, Inc. v. Pape, 401
U.S. at 288, as was the Commission Report in Pape. An
objective, balanced tone—with respect to appellant and to
GM—is sustained throughout the report. In our view, the
most adverse inference with respect to appellant’s conduct
in making his allegations (at least during the phase of the
GM-Corvair controversy covered by the subcommittee in-
vestigation) is that he reached erroneous conclusions with
regard to GM and the Corvair based on an insufficient dat
base. ?
In short, we believe that the presence of the clause affirm-
ing appellant’s good faith advocacy, which is neither ex-
plicitly 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.
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Opinion of Court of Appeals
We concur with appellant’s assertion that no matter what
construction is put on de Toledano’s language, the presence
of the subcommittee’s “good faith” finding with regard to
appellant affords a sufficient evidentiary basis from which
a reasonable inference of appellee’s publication of the dis-
puted statement with actual malice may be drawn, if the
jury so chooses. Appellee’s contrary assertion—+.e., that a
finding of malice is impermissible because he honestly be-
lieved in the truth of his statement when he published it—
does not in itself preclude the existence of a factual contro-
versy in this regard. “The defendant in a defamation
action brought by a public [figure] cannot... automatically
insure a favorable [judgment] by testifying that he pub-
lished with a belief that the statements were true. The
finder of fact must determine whether the publication was
indeed made in good faith.” St. Amant v. Thompson, 390
U.S. at 732. Where a result turns upon a choice of per-
missible inferences from undisputed evidence, summary
judgment may not properly be granted.
We think the position contended for by appellant demon-
strates the existence of a triable issue of fact. This is
sufficient under the standard controlling summary judg-
ment in public figure libel actions, see Part IV, supra, to
discharge his burden on the motion. This is not to say, of
course, that appellant is entitled to judgment on this issue
as a matter of law. We hold only that based on the record
as it existed before the trial court, a jury triable genuine
issue of material fact existed. We thus reverse the grant
of summary judgment in favor of appellee de Toledano.
B. Appellee Copley Press, Inc.
Appellant argues, as he did in this “Statement of Genuine
Issues” filed in opposition to Copley’s motion for summary
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Opinion of Court of Appeals
judgment, that the pretrial record in this case demonstrates
the existence of several factual issues regarding Copley’s
actual malice in syndication of the de Toledano column. He
does not directly dispute any of appellee Copley’s statement
of facts but rather asserts that a chain of permissible in-
ferences of actual malice may be drawn from the asserted
facts.
Appellant first contends that a factual controversy exists
as to whether Copley had “obvious reasons to doubt the
veracity” of appellee de Toledano as a journalist. St.
Amant v. Thompson, 390 U.S. at 732. Appellant designates
two factual bases in support of this contention: (1) Copley
editor Donald Charles Ohl’s deposition statement that de
Toledano was known to him as an experienced journalist
and a generally reliable columnist despite his admission
that he had never read any of de Toledano’s publications
and had never met, spoken to, or corresponded with him
before Copley’s syndication of de Toledano’s columns; and
(2) Ohl’s rejection of a few columns submitted by de Tole-
dano for syndication prior to the January 1975 publication
here at issue. From these facts, appellant suggests, a jury
could infer that Copley had no knowledge of de Toledano’s
reliability as a journalist, and therefore published the al-
legedly libelous column with reckless disregard of its truth
or falsity.
In January 1975, when the de Toledano column at issue
was published, Ohl had editorial responsibility at Copley
for news reports, features, editorials, and columns. He
was the Copley employee charged with pri
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