# Petition — De Toledano v. Nader > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1402%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1078 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1402%3A1. Public record. Not legal advice.