Petition for Writ of Certiorari — Dameron v. Washington Magazine, Inc.

i FILED

85-1569 | nar 24 1900

No, ———— JOSEPH F. SPANIOL, JR,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

MERLE W. DAMERON,

Petitioner,

Vv *

WASHINGTON MAGAZINE, INC.,

LARRY VAN DYNE and DANIEL RAPOPORT,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DANIEL J. POPEO *

MICHAEL P. MCDONALD

AMERICAN LEGAL FOUNDATION

1705 N Street, N.W.

Suite 300

Washington, D.C. 20036

(202) 857-0400

* Counsel of Record

March 24, 1986

WILSON - Eres PRINTING Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTEL FOR REVIEW

The court below has held that an ordinary private citi-

zen who sues for libel may be classified as an “involun-

tary public figure” and may therefore be constitutionally

required to prove actual malice if the defamatory news

report at issue addresses a public controversy into which

he has been involuntarily drawn. The questions presented

for review are:

1. Whether the Court of Appeals’ interpretation of the

“involuntary public figure” doctrine is compatible with

this Court’s repeated insistence that an ordinary citizen

may become a limited purpose public figure only by volun-

tarily engaging in purposeful activity which thereby in-

creases the risk of media exposure and defamation.

2. Whether the lower court’s interpretation of the in-

voluntary public figure concept, first hypothesized by this

Court in Gertz v. Robert Weich, Inc., is overly broad and

will thereby serve to resurrect the discredited Rosenbloom

“public interest” standard for purposes of applying the

actual malice standard in libel suits.”

* Pursuant to Rule 21.1(b), petitioner states that the following

parties appeared in the U.S. Court of Appeals for the District of

Columbia Circuit:

Merle W. Dameron: an individual with no corporate affiliates ;

Larry Van Dyne and Daniel Rapoport: individuals with no

corporate affiliates; and

Washington Magazine, Inc.: a corporation with no subsidiaries

or affiliates. It has a parent corporation known as Capital-Gazette

Communications, Inc.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED .................... uecaniasvarieneaueiaas

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ac sasicsnmisetnicanbannevnipactbonnes

CONSTITUTIONAL PROVISIONS INVOLVED ........

EME NPE BREED GPRIEES ........00000-ncconnnncecnnnnsennnsconses

REASONS FOR GRANTING THE WRIT ......000002..

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II.

THIS CASE PRESENTS AN IMPORTANT

AND RECURRING QUESTION OF CONSTI-

TUTIONAL LIBEL LAW CONCERNING THE

PROPER SCOPE AND CONTINUING VIA-

BILITY OF THE INVOLUNTARY PUBLIC

gs ae

A. There Is A Substantial And Irreconcilable

Division Of Opinion Among The Federal

Courts As To The Constitutional Parameters

Of The Involuntary Public Figure Doctrine..

B. Recent Decisions Of This Court Emphasizing

The Importance Of Voluntariness In Making

Public Figure Determinations Have Placed

The Continuing Viability Of The Involun-

tary Public Figure Doctrine In Doubt........

THE COURT OF APPEALS’ INTERPRETA-

TION OF THE INVOLUNTARY PUBLIC FIG-

URE DOCTRINE WOULD REINSTATE THE

DISCREDITED ROSENBLOOM “PUBLIC IN-

TEREST” STANDARD FOR PURPOSES OF

APPLICATION OF THE ACTUAL MALICE

STANDARD IN LIBEL SUITS ......00000020....

(ili)

10

12

17

20

iv

TABLE OF CONTENTS—Continued

Page

IE oo cniis: cs cnandcnceameneustedectonondsesananmetnmunpecmimantidsaes 23

I hincretnncescicncenscncerensceventsipbininnsabibepneidaneienibnincinns la

A. Opinion and Order of the United States Court

of Appeals for the District of Columbia Cir-

RCC A RS 2 MNP Ne: SOREN LAR ons) Pye rap la

B. Opinion of the United States District Court... 15a

Vv

TABLE OF AUTHORITIES

Cases: Page

Barry v. Time, Inc., 10 Med. L. Rptr. 1809 (N.D.

a ee 15

Brewer v. Memphis Publishing Co., 626 F.2d 1238

(5th Cir. 1980), cert. denied, 452 U.S. 962

PI osc saeccieps ss cccaccetenecceanses eagle utente cetadeedsadonss 14

Buchanan v. Associated Press, 398 F. Supp. 1196

5 3 0 ohh: | | Sete nn leapt OB mas EAM rane ae AE eel ed 14, 16

Carson v. Allied News Co., 529 F.2d 206 (7th Cir.

TPIT uiteesecciviorsissLenieteiibahc neath seccudtonte s saeahaeace Aainaeaalaiianaiaistal 14, 15

Curtis Publishing Co. v. Butts, 388 U.S. 130

£5 | Ea RR ERD Pe MRSS IPRA eA eae 7,8

Ethridge v. North Mississippi Communications,

Inc., 460 F. Supp. (N.D. Miss. 1978) ................... 13

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ..passim

Hutchinson v. Proxmire, 443 U.S. 111 (1979)........ 18, 20

Lawrence v. Moss, 639 F.2d 634 (10th Cir.), cert.

Momted, 451 UU. 1651 CADRE) cccccccccccccccicseteeniececes 15, 16

Marcone v. Penthouse International Magazine for

Men, 754 F.2d 1072 (3d Cir. 1985) ....................... 13, 16

Meeropol v. Nizer, 381 F. Supp. 29 (S.D.N.Y.

1974), aff'd in relevant part, 560 F.2d 1061 (2d

Cir. 1977), cert. denied, 434 U.S. 113 (1978)... 14

New York Times v. Sullivan, 376 U.S. 256 (1964)... 11

Plotkin v. Van Nuys Publishing Co., No. C 359227

(L.A. Super. Ct.) (mem. decision Feb. 25,

} |__| SAREE ORIRD ARES RAIA Pe OP UAL eR se aN) IR 16

Rancho La Costa, Inc. v. Superior Court (Pent-

house Int’l., Ltd.), 106 Cal. App. 3d 646, 165 Cal.

Rptr. 347 (1980), app. dismissed, 450 U.S. 902

{2} Been MN ee ner MOE MD SRE St ML Rand 16

Rosanova v. Playboy Enterprises, Inc., 580 F.2d

Boe Cee Ge BOF oes aoe ee 13, 16

Rosenbloom v. Metromedia, Inc., 403 U.S. 29

CREE. vorideaevicvetcc ne casa anal 15, 20, 21, 22

Schultz v. Reader’s Digest Association, Inc., 468

F. Supp. 551 (E.D. Mich. 1979) ........................... 13, 18

Time, inc. v. Firestone, 424 U.S. 448 (1976) _....... passim

vi

TABLE OF AUTHORITIES—Continued

Page

Waldbaum v. Fairchild Publications, 627 F.2d 1287

CT. RR BEY vcssiteeckevcicicinninamsocneneniananins 13, 14

Wilson v. Scripps-Howard Broadcasting Co., 642

F.2d 371 (6th Cir.), cert. denied, 454 U.S. 1130

CIEE © sasicicsssnsnstictcinicssnntniencinetintaniialasnsecniinniasianiaensbabiamaiones 15

Wolston v. Reader’s Digest Association, Inc., 443

Oo BE CRIED ivancccnsacnkiocinisndeandnseceaonsal passim

Other Authorities:

Note, The Involuntary Public Figure Class of

Gertz v. Robert Welch: Dead or Merely Dor-

mant?, 14 U. Mich. J.L. Ref. 71 (1980) ............... 12,18

Rosen, Media Lament—The Rise and Fall of In-

voluntary Public Figures, 54 St. John’s L. Rev.

GT CGY ive snccasicicsioxtenntncsscieneetnevheneinaapcliinmmatn 18

Tribe, American Constitutional Law (1978)........ 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. ——

MERLE W. DAMERON,

Petitioner,

v.

WASHINGTON MAGAZINE, INC.,

LARRY VAN DYNE and DANIEL RAPOPORT,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner, Merle W. Dameron, respectfully prays that

a writ of certiorari issue to review the judgment and or-

der of the United States Court of Appeals for the District

of Columbia Circuit entered in this defamation action on

December 24, 1985.

OPINIONS BELOW

The opinion of the Circuit Court of Appeals is reported

at 779 F.2d 736 (D.C. Cir. 1985). It is reprinted in Ap-

pendix A to this petition at la-14a.

The opinion of the United States District Court for

the District of Columbia is reported at 575 F. Supp. 1575

(1983). It is reprinted in Appendix B to this petition at

15a-19a.

2

JURISDICTION

The judgment of the United States Court of Appeals

for the District of Columbia Circuit affirming the district

court’s entry of summary judgment against petitioner was

entered on December 24, 1985. This petition for cer-

tiorari is filed within 90 days of that date. The Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

1. First AMENDMENT, UNITED STATES CONSTITUTION:

“Congress shall make no law .. . abridging the free-

dom of speech, or of the press... .”

9. FouRTEENTH AMENDMENT, SECTION 1, UNITED

STATES CONSTITUTION:

“'NJor shall any state deprive any person of life,

liberty, or property, without due process of law... .”

STATEMENT OF THE CASE

This is a libel action brought by Merle W. Dameron,

petitioner herein, against Washington Magazine, Inc.,

publisher of The Washingtonian magazine, and two of its

employees, Larry Van Dyne and Daniel Rapoport. The

action was brought in the United States District Court

for the District of Columbia where it was dismissed prior

to trial on a motion for summary judgment. On appeal,

the United States Court of Appeals for the District

of Columbia Circuit affirmed the district court’s entry

of summary judgment in the defendants’ favor, holding

that petitioner was an “involuntary public figure” who

had not pleaded, and could not prove, actual malice.

The facts set out below are not in dispute. They pre-

sent for resolution a clear, important and, as yet, un-

resolved question of substantial constitutional dimen-

sions: namely, the proper scope and continuing validity

of the so-called “involuntary public figure” doctrine.

3

The Petitioner

The petitioner, Merle W. Dameron, is a retired, pri-

vate citizen who formerly worked as one of several air

traffic controllers at Washington’s Dulles Airport. RE

at 2; 199.!

While employed in that capacity, Mr. Dameron’s duties

consisted of: (a) controlling airplane flight approaches,

landings and enroute travel; (b) radar monitoring of

aircraft positionings; and (c) conveying necessary flight

and landing information to pilots and co-pilots. RE at

199. Mr. Dameron had no supervisory, managerial, or

policymaking responsibilities, or direct contact with the

public as an air traffic controller. Jd.

On December 1, 1974, a TWA 727 (Flight 514)

crashed into Mt. Weather, Virginia, while on approach

to Dulles Airport. The crash killed 92 people. By chance,

Mr. Dameron was the sole air traffic controller on duty

at the time of the accident. RE at 3.

The NTSB Investigation

The circumstances surrounding the accidental crash of

Flight 514 were immediately investigated by the National

Transportation Safety Board (“NTSB”). In connection

with this investigation, the NTSB held hearings in Ar-

lington, Virginia from January to February, 1975. RE

134-149. Mr. Dameron testified at these hearings for

approximately 1-114 days regarding his actions as the

air traffic controller controlling the approach of Flight

514. RE at 284-85.

In November, 1975, the NTSB issued its report. The

report concluded that: “the probable cause of the [Mt.

Weather] accident was the crew’s decision to deseend

to 1,800 feet before the aircraft had reached the ap-

1“RE” references in this petition are to the Record Excerpts

relied upon by the Court of Appeals below.

4

proach segment where that minimum altitude applied.”

RE at 121. The NTSB report also concluded that con-

tributing causes of the accident were general and long-

standing confusion and misinterpretation of air traffic

control terminology, deficiencies in certain radar moni-

toring procedures and the inadequate depiction of alti-

tude restrictions on the approach chart. RE at 118-122.

The report did not find that Mr. Dameron had been negli-

gent or had otherwise improperly performed his air

traffic controller duties.’

The News Story at Issue

Almost eight years later, in October, 1982, The Wash-

ingtonian magazine published an article entitled “A False

Feeling of Security” concerning the January, 1982 crash

of an Air Florida jet departing from National Airport.

RE at 48-77. It was written by respondent Larry Van

Dyne. In a section of that article discussing air traffic

control, The Washingtonian published the following

statement:

Since then—despite hair-raising talk among control-

lers about computer malfunctions, fatigue-induced

errors, and reports of “near misses” in midair—it

is believed that no major crash has been caused solely

by controller errors. They have been assigned par-

tial blame in few accidents, including the 1974

crash of a TWA 727 into Mt. Weather in Virginia

upon approach to Dulles (92 fatalities) ....

2 After the NTSB report issued, relatives of the pilot and co-pilot

of Flight 514 filed a wrongful death action against the United

States in federal district court in Virginia. Mr. Dameron testified

as a witness for the government in this case. RE at 280. In a 1977

decision, the district court held that the government was not liable

for the Mt. Weather crash. The court specifically held that Mr.

Dameron was not negligent and had performed his air traffic

controller duties properly. RE at 213 and 215-16. This decision was

affirmed by the Court of Appeals for the Fourth Circuit in 1979.

Brock v. United States, 596 F.2d 93 (4th Cir. 1979). RE at 226.

5

RE at 58. Respondent Daniel Rapoport had researched

this portion of The Washingtonian article. His sole

source for the above assertions implying that air traffic

controllers were partially to blame for the Mt. Weather

crash was the NTSB report. App. A at 4a.*

Soon after the article appeared, petitioner Dameron

notified The Washingtonian that it had made a mistake.

The magazine thereafter printed a correction stating

that “no blame {had been] placed on individual control-

lers by the [National Transportation Safety] Board.”

RE at 231.

The Decisions Below

On April 4, 1983, Merle Dameron filed suit against

The Washingtonian magazine in the United States Dis-

trict Court for the District of Columbia. RE at 1-4. He

asserted that as the sole air traffic controller on duty at

the time of the Mt. Weather crash, The Washingtonian

aritcle both identified and defamed him. RE at 33. He

further asserted that he was not in fact partly to blame

for the 1974 Mt. Weather crash and that The Washing-

tonian’s statement to the contrary was therefore negli-

gently false. Id. Lastly, he contended the article had

caused him humiliation and mental anguish. Jd. His

complaint did not allege that the report had been pub-

lished with actual malice. Id.; App. A at 5a.

After discovery was completed, the defendants filed u

motion for summary judgment. The district court

granted this motion on December 21, 1983 holding that

The Washingtonian “enjoyed a conditional privilege” to

publish the statement at issue because it was a fair re-

port of a governmental proceeding under relevant Dis-

trict of Columbia case law. RE at 271-275; App. B at

15a-19a.‘ Because Mr. Dameron had not alleged actual

*“App. A” references refer to Appendix A to this petition, which

reproduces the District of Columbia Circuit’s opinion below.

*“App. B” references are to Appendix B to this petition which

contains the United States District Court's opinion below.

6

malice, the Court stated that the privilege could not be

overcome. However, in anticipation of an appeal, the dis-

trict court judge further found that Dameron was nei-

ther a public official nor a public figure and that if the

fair report privilege was inapplicable there would be a

question of fact as to whether the defendants had acted

negligently. App. B at 16a.

On appeal, two main issues were briefed: (1) whether

the fair report privilege applied; and (2) whether Merle

Dameron was a public official or a limited purpose public

figure. On the first issue, the District of Columbia Cir-

cuit Court disagreed with the district court’s grant of

summary judgment on the grounds that the defendants

enjoyed a conditional privilege to publish reports of gov-

ernmental proceedings. Because proper attribution is an

integral element of the fair report privilege, and because

the average reader of The Washingtonian article would

have been unlikely to understand the article to be a sum-

mary of the NTSB’s investigative findings, the privilege

was deemed inapplicable. App. A at 7a-9a.

However, the appellate court nevertheless found alter-

nate grounds for affirming the district court’s grant of

summary judgment. Drawing upon this Court’s past de-

velopment of the “public-figure” doctrine to identify those

libel plaintiffs who must plead and prove constitutional

actual malice, the Circuit Court found that “Dameron’s

role in a major public occurrence resulted in his becom-

ing an involuntary, limited purpose public figure.” App.

A at 13a.’ Because petitioner did not allege and admitted

he could not prove that The Washingtonian had written

the allegedly false and defamatory report with actual

malice, the appeals court concluded that his suit was

properly dismissed. App. A at 14a.

5 Because of the court’s conclusion that Dameron was an involun-

tary, limited-purpose public figure, it did not reach the question

of whether he might also be classified as a “public official.” App. A

at 14a.

7

Rationale Underlying the Circuit Court’s Opinion

The appellate court’s conclusion that petitioner was an

“involuntary public figure” for the limited purpose of

discussions of the 1974 Mt. Weather crash stemmed pri-

marily from its reading of four of this Court’s previous

“publie-figure” decisions: Curtis Publishing Co. v. Butts,

388 U.S. 130 (1967); Gertz v. Robert Welch, Inc., 418

U.S. 323 (1974); Time, Inc. v. Firestone, 424 U.S. 448

(1976) ; and Wolston v. Readers Digest Association, Inc.,

443 U.S. 157 (1979).

Writing for the circuit panel, Judge Mikva noted that

Butts had originally generated only two definitions of a

“public figure”: the “pervasive” or “all purpose” public

figure and the more restricted “limited purpose” or “vor-

tex” public figure. App. A at 9a-10a. The latter cate-

gory he observed, consisted of individuals who had pur-

posely thrust their personality into the “vortex” of an

important public controversy. Id.

Judge Mikva recognized. that petitioner could in no

ways be viewed as a “pervasive” “all purpose” public

figure: on the contrary, Dameron was described as “an

ordinary citizen,” who had been “completely unknown to

the public before the Mt. Weather crash,” and who was

“neither a person of general notoriety nor a person who

has with ‘vigor and success’ sought the public’s atten-

tion.” App. A at 10a.

Judge Mikva additionally concurred in the district

court’s holding that: “Dameron cannot fairly be said

to have ‘injected’ himself into the {Mt. Weather] contro-

versy.” App. A at 9a. Dameron did not “desire” to be

a part of the Mt. Weather crash controversy and his in-

volvement was both “involuntary” and “relatively pas-

sive.” App. A at lla. It was only “by sheer bad luck”

that he became involved at all. Id. Accordingly, this lack

of voluntariness on Dameron’s part seemed to preclude

8

him from being categorized as a limited purpose public

figure.

Judge Mikva then declared, however, that the Court’s

emphasis in Butts on the importance of “voluntariness”

in the public figure equation was “not the be-all and

end-all . . . by which public-figure status is achieved.”

App. A at 9a. Specifically, he alluded to that portion of

Gertz v. Robert Welch, Inc. in which this Court hypothe-

sized that “it is possible, although difficult and rare, to

become a limited-purpose public figure involuntarily.”

App. A at lla (emphasis in original). Persons can be

elevated to the status of a limited-purpose public-figure

“without their consent or will,’’ and “such,” he asserted,

“has been Dameron’s fate.” Id.

In Judge Mikva’s view, the 1974 Mt. Weather crash

“was indisputably a public controversy.” Jd. Moreover,

As in Gertz, Dameron “assume[d a] special promi-

nence in the resolution of [a] public question[].”

Gertz at 351. He became embroiled, through no de-

sire of his own, in the ensuing controversy over the

causes of the accident. He thereby became well

known to the public in this one very limited con-

nection.

App. A at 11la-12a.

Although recognizing that two cases decided subse-

quent to Gertz, Time, Inc. v. Firestone and Woltson v.

Reader’s Digest Association, might “compel a different

conclusion,” App. A at 13a, Judge Mikva not only distin-

guished but relied upon each of these cases to buttress

his conclusion that Dameron was an involuntary public

figure. App. A at 12a-13a.

In Firestone, the former wife of a prominent indus-

trialist had sued Time magazine for misstating the de-

tails of her well-publicized divorce proceedings and was

held by this Court not to be a public figure. Specifically,

9

Justice Rehnquist had found that Mrs. Firestone had not

“thrust herself to the forefront of any particular contro-

versy.” But according to Judge Mikva, Dameron’s situa-

tion was “far removed from that of Mrs. Firestone” since

an important “public controversy,” existed, i.e., the 1974

Mt. Weather crash. Id. Therefore, for the constitutional

purpose of becoming an involuntary public figure, lack

of voluntariness was irrelevant, so long as “a particular

public controversy” existed.

In Wolston v. Reader’s Digest Association, an individ-

ual involuntarily drawn into a public controversy in the

fifties and years later falsely named as a Soviet spy in

a book, was also deemed by this Court not to be a public

figure. The distinction, here, Judge Mikva opined, was

that whereas Wolston was defamed with respect to a

controversy in which he played a tangential role, “Dam-

eron was a central figure, however involuntarily, in the

discrete and specific public controversy with respect to

which he was allegedly defamed... .” App. A at 13a

(emphasis added). Again, the fact that petitioner did

not voluntarily thrust himself into the vortex of the Mt.

Weather controversy was deemed irrelevant.

For all these reasons, Judge Mikva found petitioner to

be an involuntary public figure. However, mindful that

the court’s rationale—which emphasized that close asso-

ciation with a “public controversy” alone would be suffi-

cient to render one a limited-purpose public figure—

might sweep too broadly, he concluded with an assertion

that the Court’s holding was actually quite limited:

“The circumstances in which an involuntary public fig-

ure is created will, we are confident, continue to be few

and far between.” App. A at 13a.

10

REASONS FOR GRANTING THE WRIT

I. THIS CASE PRESENTS AN IMPORTANT, UN-

RESOLVED AND RECURRING QUESTION OF

CONSTITUTIONAL LIBEL LAW CONCERNING

THE PROPER SCOPE AND CONTINUING VIABIL-

ITY OF THE INVOLUNTARY PUBLIC FIGURE

DOCTRINE.

The opinion below presents an important, unresolved

and regularly recurring federal question concerning the

proper scope and continuing viability of the so-called in-

voluntary public figure doctrine. In revitalizing this doc-

trine, the court below claimed to be guided primarily by

Gertz v. Robert Welch, Inc., 418 U.S. 328 (1974), the

case wherein a class of limited purpose involuntary pub-

lic figures was first hypothesized. However, the point to

be emphasized is that Gertz dealt with a hypothetical sit-

uation, not with a concrete set of facts. Thus, this case

may properly be viewed as one of first impression.

Moreover, the issues presented herein are particularly

ripe for resolution. In the years since this Court am-

biguously postulated the existence of an involuntary pub-

lic figure class of libel plaintiffs, the issue has been re-

peatedly addressed in the federal circuits. The conflict in

holdings is substantial. Further, a careful reading of

Gertz and the subsequent public figure libel cases decided

by this Court casts doubt on the doctrine’s continuing

viability.

A decision by this Court on the precise definition and

scope of the involuntary public figure concept will resolve

these conflicts, clarify this Court’s previous rulings and

thereby lead to greater predictability in the administra-

tion of the federal law of libel. And predictability of the

law is an especially critical factor in the highly sensitive

libel area.

Conversely, failure to grant review of the decision be-

low will have several deleterious consequences. Not

only will it perpetuate existing divisions on an issue

11

of signal importance to libel plaintiffs and defendants

alike, but refusal to act may gravely impair the effective

eperation of the federal libel scheme established in Gertz

by allowing the reintroduction of the discredited Rosen-

bloom “public interest” libel standard to go unchallenged.

In Gertz, this Court established a new constitutional

framework to accommodate two important, yet conflict-

ing values: the First Amendment’s policy of encourag-

ing “uninhibited, robust, and wide-open” debate on pub-

lic issues, New York Times v. Sullivan, 376 U.S. 256,

270 (1964), and “[t]he legitimate state interest ... [in]

the compensation of individuals for the harm inflicted on

them by defamatory falsehood.” Gertz, 418 U.S. at 341.

Gertz arrived at this accommodation by dividing the

entire class of libel plaintiffs into two categories (public

officials/public figures vs. private figures); and by es-

tablishing different standards of proof to govern the

award of damages to plaintiffs in each category. Id. at

344-347.

The Court’s basis for distinguishing between public

and private figures and for applying the rigorous New

York Times actual malice standard to the former cate-

gory was twofold. First, the Court reasoned that private

individuals are more “vulnerable” to damage and thus

more “deserving” of state defamation remedies than pub-

lic officials or public figures who generally possess suffi-

cient access to effective communication channels to rebut

the defamatory statements. Id. at 344-45.

Much more important to the Court’s thinking, however,

was the fact that public officials and public figures “have

voluntarily exposed themselves to increased risk of in-

jury from defamatory falsehood concerning them,”

whereas private individuals have not. Jd. When the

Gertz Court turned its attention to describing the dif-

ferent classes of individuals who fit into the public figure

category, it was this emphasis on voluntary action, akin

to assumption of risk, that was determinative.

12

The Gertz Court delineated three classes of public fig-

ures: (1) persons famous or notorious enough to be

public figures for all purposes; (2) persons otherwise not

famous who had voluntarily injected themselves into par-

ticular public controversies; and (3) persons who had

been involuntarily drawn into such controversies. Id.

The court emphasized that the New York Times actual

malice standard was properly applied to all-purpose and

voluntarily limited categories because such individuals

had assumed the risks of close public scrutiny. Jd. at

344-45. However, the Court’s rationale for hypothesizing

the existence of the involuntary public figures class was

left unexplained. Moreover, no further definitional clari-

fication was provided as to its proper scope in subse-

quent rulings in this area.

Petitioner seeks review of this important policy ques-

tion in order to definitively resolve these ambiguities.

A. There Is A Substantial And Irreconcilable Division

Of Opinion Among The Lower Federal Courts As

To The Constitutional Parameters Of The Involun-

tary Public Figure Doctrine.

Subsequent to this Court’s decision in Gertz, all levels

of the lower federal judiciary have repeatedly been called

upon to ascertain the precise meaning and scope to be

afforded the involuntary public figure class of libel plain-

tiffs. In light of the limited guidance Gertz provided, it

is not surprising that a wide divergence of opinion has

resulted. Thus, one commentator has catalogued at least

four distinct and mutually irreconcilable judicial inter-

pretations concerning this doctrine. See Note, The In-

voluntary Public Figure Class of Gertz v. Robert Welch:

Dead or Merely Dormant?, 14 U. Mich. J.L. Ref. 71, 76-

79 (1980).

One judicial view of the Gertz involuntary public figure

doctrine is that this Court did not mean to imply the

existence of a separate third class of public figures.

Rather, these courts have interpreted this language to

ne ee eS SR °

13

simply suggest that not all individuals who attain public

figure status have deliberately chosen to accept the risk

of defamation from increased media exposure. Accord-

ingly, in Schultz v. Reader’s Digest Association, Inc., 468

F. Supp. 551, 560 (E.D. Mich. 1979), the court stated:

[A] qualitative distinction must be made regarding

types of involuntariness. On the one hand, a person

who engages in conduct that unintentionally or un-

knowingly attracts public attention might be classed

as an involuntary public figure because in some

sense he can be said to have assumed the risk of his

own conduct. On the other hand, a person who be-

comes the object of public attention through no ac-

tion of his own cannot be said in any real sense to

have assumed the increased risk of defamation and

would not therefore become a public figure.

In other words, some individuals might become “inyolun-

tary” public figures, according to these courts, in the

sense that they purposefully and yet perhaps not de-

liberately assumed the risk of closer media serutiny by

their actions. Creation of the involuntary category of

limited purpose public figures was thus simply meant to

reflect the subjective unawareness as to assumption of the

risk held by this class of libel plaintiffs. Cf., Ethridge v.

North Mississippi Communications, Inc., 460 F. Supp. 347

(N.D. Miss. 1978) (undercover drug agent held to be

public figure despite covert status); Rosanova v. Playboy

Enterprises, Inc., 580 F.2d 859. 861 (5th Cir. 1978)

(“{T]he status of public figure vel non does not depend

upon the desires of an individual); Marcone v. Pent-

house International Magazine for Men, 754 F.2d 1072,

1084 (3d Cir. 1985) (asserting that one cannot avoid

public figure status by arguing that one did not want it).

A second view held by the courts that have considered

this federal question is that the involuntary public figure

class does exist and is composed exclusively of celebrities

who attempt to return to anonymity but who are unable

to do so because of press attention. See, e.g., Waldbaum

v. Fairchild Publications, wherein the court stated:

14

In rare instances, a celebrity may decide to abandon

his prominent position in society to return to ano-

nymity, but persistent press attention, most likely

fueled by continuing public interest, may thwart his

quest for privacy. In such a case, he still may be a

public figure. Although he no longer is accepting the

risk of defamation voluntarily, he remains able to

reply to attacks through the press, which is continu-

ing to cover him. . . . Moreover, his power and influ-

ence, due to his prominence, may continue despite his

efforts to renounce publicity. Thus, his actions still,

as Gertz put it, “invite attention and comment.”

627 F.2d 1287, 1295 n.18 (D.C. Cir. 1980).°

The third and most prevalent interpretation of the doc-

trine is that it is most appropriately employed to govern

libel suits initiated by otherwise private individuals who

have become associated with notorious public officials or

public figures. See, e.g., Meeropol v. Nizer, 381 F. Supp.

29 (S.D.N.Y. 1974), aff'd in relevant part, 560 F.2d 1061

(2d Cir. 1977), cert. denied, 484 U.S. 113 (1978) (chil-

dren of Julius and Ethel Rosenberg held to be public

figures because of media attention shed on children by

virtue of their parents’ fame); Buchanan v. Associated

Press, 398 F. Supp. 1196, 1202 (D.D.C. 1975) (account-

ant whose firm had been retained by finance committee

to re-elect the President “drawn into” controversy through

association); Brewer v. Memphis Publishing Co., 626

F.2d 1238 (5th Cir. 1980), cert. denied, 452 U.S. 962

(1981) (otherwise anonymous individual held to be

limited-purpose public figure because of his wife’s former

relationship to Elvis Presley) ; Carson v. Allied News Co.,

6 Waldbaum was discussed at length by Judge Mikva in the opin-

ion below. App. 10a-1la. Yet his interpretation of the involuntary

public figure doctrine differs significantly from that put forth in

Waldbaum. See infra at 15. The District of Columbia Circuit

thus stands as an example, in miniature, of the confusion engendered

by Gertz’s ambiguous reference to an involuntary public figure class

of libel plaintiffs.

15

529 F.2d 206 (7th Cir. 1976) (wife of television enter-

tainer held to be “part-time” public figure). This ap-

parently is also the view of Justice White as expressed in

his concurrence in Rosenbloom v. Metromedia, Inc., 403

U.S. 29, 61-62 (1971). See also Tribe, American Con-

stitutional Law, §§ 12-13 at 643-44 (1978).

Finally, there is now the novel interpretation of the

court below, which will apply the involuntary public figure

class to private individuals who have been “involuntarily

drawn” into “important public controversies” regardless

of any assumption of the risk on their part. Under this

rationale the media are provided with a blanket consti-

tutional privilege, i.e., the actual malice standard, to de-

fame otherwise private citizens who through no fault

of their own become associated with important public

controversies. Because this broad category can be made

applicable to almost any newsworthy event, infra at 22,

it threatens to nullify the public figure private citizen

distinction altogether.

Additionally, a fifth judicial view of the involuntary

public figure doctrine may be said to exist if one includes

those courts which either openly question the doctrine’s

continuing validity or, similar to this Court in Wolston

v. Reader’s Digest Association, conspicuously fail to

enumerate it whenever discussing the limited purpose

public figure concept in general. See, e.g., Barry v. Time,

Inc., 10 Med. L. Rptr. 1809, 1812 n.6 (N.D. Cal. 1984) :

Wilson v. Secripps-Howard Broadcasting Co., 642 F.2d

371, 374 (6th Cir.), cert. denied, 454 U.S. 1130 (1981)

(suggesting that only evidence that a libel plaintiff “know-

ingly exposed himself” to “[the risk of] increased media

attention” will result in limited purpose public figure

status).

The variety of judicial views on this issue has led to

a number of striking contradictions and anomalies. For

example, in Lawrence v. Moss, 639 F.2d 634 (10th Cir.),

cert. denied, 451 U.S. 1031 (1981), a libel plaintiff who

16

had served on the staff of the Vice-President and had

served as a deputy director of the committee to re-elect

the President was not held to be a limited purpose public

figure for the purposes of remarks made in the context

of a Senate campaign. In contrast, an accountant to that

same committee to re-elect the President was found to be

such a figure. Buchanan v. Associated Press, 398 F.

Supp. 1196 (D.D.C. 1975).

Similarly irreconcilable are the involuntary public

figure cases dealing with criminals. In Rosanova v.

Playboy Enterprises, Inc., 580 F.2d 859, 863 (5th Cir.

1978) the Fifth Cireuit held that involvement with or-

ganized crime makes one an involuntary limited purpose

public figure. However, in Rancho La Costa, Inc. v. Su-

perior Court (Penthouse Int’l., Ltd.), 106 Cal. App. 3d 646,

165 Cal. Rptr. 347 (1980), app. dismissed, 450 U.S. 902

(1981) a different court addressing the same issue

reached the opposite conclusion. See also Marcone v. Pent-

house International Magazine for Men, 754 F.2d 1072,

1084, n.9 (38d Cir. 1985) (“[{T]o the extent a person

attains public figure status by . . . notorious act, he

might be considered an involuntary public figure.”’)

Finally and most recently one is compelled to note that

a California court, has held that a former Iranian hos-

tage who was sued for libel is not an involuntary public

figure for purposes of a story relating to his seizure at

the American embassy. Plotkin v. Van Nuys Publishing

Co., N. C 359227 (L.A. Super. Ct.) (mem. decision Feb.

25, 1986).

The incongruous results reached at all levels of the

state and federal judiciary on this issue highlight the

necessity for this Court to provide additional guidance.

17

B. Recent Decisions Of This Court Emphasizing The

Importance Of Voluntariness In Making Public

Figure Determinations Have Placed The Continuing

Viability Of The Involuntary Public Figure Doc-

trine In Doubt.

Since Gertz v. Robert Welch, Inc. was decided in 1974,

this Court has revisited the limited purpose public figure

doctrine on a number of occasions. The three most promi-

nent cases being: Time Inc. v. Firestone, 424 U.S. 448

(1976) ; Hutchinson v. Prowmire, 443 U.S. 111 (1979);

and Wolston v. Reader’s Digest Ass’n, 443 U.S. 157

(1979). However, in their failure to mention, let alone

discuss, the involuntary public figure concept, these cases

have raised a serious question as to whether the federal

courts are correct in continuing to recognize the con-

cept’s very existence.

In Time, Inc. v. Firestone, the former wife of the heir

to the Firestone tire fortune sued Time magazine for mis-

stating details of her divorce proceedings, and was held

not to be a public figure. However, in discussing the

question of whether Mrs. Firestone was a limited purpose

public figure, this Court conspicuously omitted the “lack

of purposeful action” and “drawn into” passages from

its summary of the Gertz “public figure” definition, there-

by suggesting that the involuntary class is not a central

part of the Court’s conception of public figures. Fire-

stone, 424 U.S. at 453.

The Court took further pains to emphasize that al-

though participants in some litigation may be legitimate

public figures, “the majority will more likely resemble

[Mrs. Firestone], drawn into a public forum largely

against their will ....” Jd. at 457 (emphasis added).

As several commentators have observed, use of the phrase

“drawn into” in this passage conflicts with the Court’s

earlier statement in Gertz that a person could become a

public figure by being “drawn into” a public controversy.

18

See Note, The Involuntary Public Figure Class of Gertz

v. Robert Welch: Dead or Merely Dormant?, 14 U. Mich.

J.L. Ref. 71, 81 (1980); Rosen, Media Lament—The

Rise and Fall of Involuntary Public Figures, 54 St. John’s

L. Rev. 487, 500-502 (1980). See also Schultz v. Reader’s

Digest Association, 468 F. Supp. 551, 559 (E.D. Mich.

1579) wherein the court, noting this aspect of the Fire-

stone decision remarked: “(I]t appears to this Court that

. . . Firestone . . . forecloses the possibility of one be-

coming an involuntary public figure.”

Hutchinson v. Proxmire, 443 U.S. 111 (1979), also

adds support to the argument that the involuntary public

figure class has been abandoned. In that case, this Court

similarly refused to impose public figure status on a pro-

fessor whose work was publicized as an example of waste-

ful governmental spending. As in Firestone, there was no

reference made to the involuntary public figure concept.

Gertz was summarized and again viewed as having estab-

lished only two categories of public figures. Jd. at 134.

Furthermore, although the issue of possible involuntary

public figure status was not raised, it is reasonable to

assume that one who received federal funds might be a

likely candidate for that status. Thus, the Court’s failure

to discuss the issue weighs against the involuntary cate-

gory’s continued viability.

Finally, the Court’s decision in Wolston v. Reader’s

Digest Association, 443 U.S. 157 (1979), further creates

confusion which only this Court can resolve about the

continuing viability of the involuntary public figure doc-

trine. Wolston was a companion case to Hutchinson.

There, an individual falsely named as a Soviet spy in a

book written and published by the defendants was also

deemed not to be a public figure. And once again, the

Court made no mention in its decision of the involuntary

class, referring only to the “all-purpose” and “voluntary

limited-purpose” categories. Id. at 164. More important,

19

Justice Rehnquist, writing for the Court, clearly stated

that:

A private individual is not automatically trans-

formed into a public figure by becoming involved in

or associated with a matter that attracts public at-

tention. To accept such reasoning would in effect re-

establish the doctrine advanced by the plurality opin-

ion in Rosenbloom. . . .

Id. at 67 (emphasis added).

Moreover, the Court cast the public figure issue solely

in terms of “thrust[ing] ... to the forefront of partic-

ular public controversies.” Jd. at 165. As Justice Black-

mun noted:

The Court seems to hold, in other words, that a per-

son becomes a limited-issue public figure only if he

literally or figuratively “mounts a rostrum” to ad-

vocate a particular view.

Id, at 169 (emphasis added).

Thus there is significant support in these three post-

Gertz decisions to suggest that this Court has had sec-

ond thoughts about the wisdom of creating an involun-

tary class of public figures. Yet the evidence remains

inclusive thereby allowing lower courts to make the dis-

tinctions such as those made by the Court below, in

order to keep this category not merely alive but poten-

tially threatening to the entire Gertz framework. See

infra, at 20-22. Granting this petition will enable this

Court to reexamine this doctrine to clarify whether, con-

trary to Judge Mikva’s assertion, voluntariness has in-

deed become the “be-all and end-all” by which public fig-

ure status is achieved. App. A at 9a.

20

Il. THE COURT OF APPEALS’ INTERPRETATION OF

THE INVOLUNTARY PUBLIC FIGURE DOC-

TRINE WOULD REINSTATE THE DISCREDITED

ROSENBLOOM “PUBLIC INTEREST” FOR PUR-

POSES OF APPLICATION OF THE ACTUAL

MALICE STANDARD IN LIBEL SUITS.

The decision below purports to implement this Court’s

instructions in Gertz. However, while Gertz did hypothe-

size a class of involuntary public figures, the key element

for the Court in determining public figure status was vol-

untary action on the part of the plaintiff that attracted

public attention. This is highlighted both by the Gertz

court’s insistence that the instances of truly involuntary

public figures would be “rare”, and by the Court’s re-

peated failure to mention the existence of this hypotheti-

cal class in its subsequent public figure decisions. Supra

at 17-19.

But even more troubling than the lower court’s clear

departure from the holdings of Firestone, Hutchinson

and Wolston is the fact that by broadly applying the Gertz

involuntary public figure doctrine, the Court of Appeals

decision will paradoxically lead to the reemergence of the

Rosenbloom “public interest” test—the very test which

the Gertz court explicitly repudiated. Cf., Wolston, 443

U.S. at 167. To see how such a result is inevitable and

will thereby lead the lower courts back into the morass

of making “public interest” determinations, one need

only reexamine the lower court decision.

A fair reading of the D.C. Circuit Court’s ruling is

that the New York Times actual malice standard should

be applied to otherwise “private” figure libel plaintiffs

whenever such plaintiffs become involved—willingly or

unwillingly—in a sufficiently important “public contro-

versy.” Thus, the lower court’s focus is placed squarely

on the public controversy at issue rather than the plain-

tiff’s voluntariness in seeking public attention. Accord-

ingly, the fact that petitioner is “an ordinary citizen”

21

who “never sought to capitalize on the fame he achieved

through [his involuntary association with] the Mt.

Weather crash,” App. A at 1la, was deemed irrelevant.

What was important for the court was that a public

controversy once existed and petitioner had become “em-

broiled”’ in it.

But in ignoring Dameron’s status as a private citizen

and by using the involuntary public figure concept to

shift the emphasis from one’s status to one’s fortuitous

involvement in a matter of public controversy, the lower

court has repeated the principal conceptual flaw of the

Rosenbloom decision.

In Rosenbloom v. Metromedia, Inc., 403 U.S. 29

(1971), a plurality of this Court briefly extended the

constitutional actual malice standard to encompass all

“issues of public or general concern.” Jd. at 43-44. The

rationale ther was the same as that of the court’s be-

low: namely, that because First Amendment protections

should extend to all controversial matiers of public im-

portance, one’s status is unimportant.

But Gertz explicitly repudiated this type of an “issue-

oriented” approach to determine the ambit of the Consti-

tution’s protection. Such an approach is too heavily

weighted to protecting speech at the expense of the com-

peting reputational values at issue. Moreover Justice

Powell, writing for the Gertz majority, flatly stated that

the judiciary was institutionally incapable of making con-

tent-based determinations of the public interest. Gertz,

418 U.S. at 346. Cf., Rosenbloom, 403 U.S. at 79 (Mar-

shall, J., dissenting). Therefore the better way to balance

the competing constitutional values was determined to

be by examining whether the libel plaintiff had volun-

tarily relinquished, to any degree, his interest in the pro-

tection of his name. Id. at 344-45.

The difficulty with the approach taken below is that it

requires courts to make ad hoc determinations as to when

22

an issue is so controversial that the magnitude of the

event will outweigh the protection due a defamation vic-

tim who has in no way invited attention or comment.

Under this rationale, not only air traffic controllers like

petitioner, but virtually any private citizen who happens

to become embroiled in a newsworthy event could he

forced to surmount the actual malice standard.’ In sum,

the holding below constitutes a veiled return to the

Rosenbloom approach, although it purports to be derived

from Gertz.

The District of Columbia Circuit is generally regarded

as the second most powerful and authoritative federal

court in the nation. The fact that it has reanimated the

involuntary public figure doctrine in such a way as to

reintroduce Rosenbloom back into the Gertz framework,

will not go unnoticed by other courts, or one must add,

the media defense bar.

This reintroduction of Rosenbloom via Gertz is pre-

cisely what this Court has recently sought to preclude.

Wolston, 443 U.S. at 167. Its return would arrest the

proper development of the federal law of libel as estab-

lished in Gertz. Moreover, unless and until this Court

revisits the involuntary public figure doctrine we will

continue to see hapless private citizens, who through no

fault of their own are suddenly caught up in a public

controversy, left with virtually no recourse if defamed.

Accordingly, this Court should review the decision below.

7 That the lower court has used the term “public controversy”

rather than “newsworthy event” is of little significance given that

a court, through its own ipse dizit, can elevate a merely news-

worthy event into a public controversy.

23

CONCLUSION

For all of the foregoing reasons, a writ of certiorari

should issue to review the judgment and opinion of the

United States Court of Appeals for the District of Co-

lumbia Circuit.

Respectfully submitted,

DANIEL J. POPEO *

MICHAEL P. MCDONALD

AMERICAN LEGAL FOUNDATION

1705 N Street, N.W.

Suite 300

Washington, D.C. 20036

(202) 857-0400

* Counsel of Record

March 24, 1986

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT

Nos. 84-5056, 84-5082

MERLE W. DAMERON,

- Appellant,

WASHINGTON MAGAZINE, INC., et al.

MERLE W. DAMERON

Vv.

WASHINGTON MAGAZINE, INC., et al.,

Appellants.

Argued Nov. 29, 1984

Decided Dec. 24, 1985

Appeals from the United States District Court

for the District of Columbia

(Civil Action No. 83-01248)

Before ROBINSON, Chief Judge, WRIGHT and

MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge.

Plaintiff Merle Dameron appeals from the district

court’s grant of summary judgment to the defendant in

this defamation action. We agree with the district court’s

2a.

conclusion that the alleged libel was protected, but differ

on the basis for such protection. The district court found

that the defendants’ statements about Dameron derived

from an official report of a government proceeding. We

do not believe the official report privilege applies in the

circumstances of this case. However, we find that Dam-

eron’s role in a major public occurrence resulted in his

becoming an involuntary, limited-purpose public figure.

Under the controlling precedents, this status also forms

a basis for protection, at least in the absence of actual

malice by the alleged defamer. Accordingly, we affirm the

court’s grant of summary judgment.

I. BACKGROUND

This case arises from The Washingtonian magazine’s

publication in October 1982 of a lengthy article entitled

“The Inside Story of the Crash of Air Florida’s Flight

90: A False Feeling of Security.” As the title suggests,

the article was primarily a dramatic account of a much-

publicized 1982 airplane crash in Washington, D.C. (re-

plete with details of what the doomed passengers said to

loved ones before leaving home for the airport, what

jokes were exchanged in the cockpit before take-off, and

so on).

Interwoven with the narrative account of the crash of

Flight 90 were a number of sidebars that reported on

aviation safety and air crashes in general. These re-

ports included “How Dangerous Is It to Fly in Bad

Weather?” and “Jet Airliners Are Almost Perfect Ma-

chines Until ....” The present suit is based on a two-

sentence paragraph on the eleventh page of the article in

a short sidebar entitled ‘Is National Airport an Accident

Waiting to Happen?”

This section detailed safety problems specific to Wash-

ington’s National Airport—the unusually large number ©

of flights daily, its excessively short runways, the re-

3a

quirement that pilots avoid the air space around the

White House—but concluded that the FAA had taken

a number of special precautions with respect to National

and that National’s safety record was good. The sidebar

concluded with a few paragraphs designed to put Na-

tional’s problems in context. The report noted that in

recent years airport facilities have very rarely placed

any role in crashes. (“[A]Jirport inadequacies were par-

tially to blame in only 6 percent of all fatal accidents.”’)

The article also reported that the air-traffic-controi sys-

tem is rarely to blame in accidents. The section ex-

plained that in 1956, inadequate air-traffic control caused

a major in-air crash over the Grand Canyon, and that

this debacle resulted in the FAA’s creation and the pres-

ent air-traffic-control system. The section concluded with

the following two sentences:

Since then—despite hair-raising talk among con-

trollers about computer malfunctions, fatigue-in-

duced errors, and reports of “near misses” in mid-

air—it is believed that no major crash has been

caused solely by controller errors. They have been

assigned partial blame in a few accidents, including

the 1974 crash of a TWA 727 into Mt. Weather in

Virginia upon approach to Dulles (92 fatalities),

the 1977 Southern Airways crash in Georgia, and

the 1978 collision of a Pacific Southwest Airlines jet

with a light plane over San Diego (142 fatalities).

Plaintiff Merle Dameron was the sole air traffic con-

troller on duty at Dulles on the day the TWA plane

crashed into Mt. Weather in 1974. He contends that he

was not in fact to blame for the accident, that he was

never found blameworthy, and that he was wholly ex-

onerated by a federal district court, which dismissed tort

claims brought against the government on the theory of

controller negligence. Dameron asserts that The Wash-

ingtonian’s statement that he was partly to blame for

the death of 92 people libels him—that the statement is

4a

false, brings him into disrepute, and has caused him

humiliation and mental anguish. He does not allege

malice.

It appears that the researcher for this report (defend-

ant Daniel Rapoport) had only one source for his in-

formation on the Mt. Weather crash: a 1974 National

Transportation Safety Board (‘““NTSB”) accident report.

See National Transportation Safety Board Aircraft Acci-

dent Report: Trans World Airlines, Inc., Boeing 727-231

N54320, Berryville, Virginia, December 1, 1974, Report

No. NTSB-AAR-75-16, reprinted in Record Excerpts

(“R.E.”) at 79-133. In preparing material for the arti-

cle’s author, Rapoport summarized the NTSB report by

stating that the Mt. Weather crash was an incident in

which “air control failures” were “one of the causes or

a contributing factor.” Exhibit H, reprinted in R.E. at

232. When the article’s author (defendant Larry Van

Dyne) incorporated this material in the article, he made

what he apparently thought was a purely stylistic change

and wrote that the controllers had been partly to blame.

Rapoport subsequently edited the article but did not

object to the change.

Shortly after the article appeared, Dameron notified

The Washingtonian that it had made a mistake, and the

magazine printed a correction. Subsequently, Dameron

filed suit in District of Columbia Superior Court. The

defendants—-the magazine (Washington Magazine, Inc.

publishes The Washingtonian), Van Dyne, and Rapoport

—removed the case to federal court. (A fourth defend-

ant, another researcher, was dismissed from the suit

based on The Washingtonian’s assertion that he had not

worked on the challenged section of the article.) The de-

fendants now contend that they printed the correction

only in an effort to appease Dameron and not out of any

belief they had made an error. They assert that the state-

ment printed is substantially, if not precisely, accurate.

5a

The defendants moved for summary judgment on a

variety of grounds, including the fair report privilege,

the substantial truth of the statement, and the theory

that the plaintiff was both a public official and a public

figure and that consequently his failure to allege actual

malice rendered his suit legally deficient. The district

judge granted the defendants’ motion. He found that

the allegedly libelous statement was protected by the

common law conditional privilege for press reports of

government proceedings. See Dameron v. Washington

Magazine, Inc., 575 F.Supp. 1575 (D.D.C. 1983). In

apparent anticipation of an appeal, the judge further

found that Dameron was neither a public figure nor a

public official and that if the report privilege did not

apply there would be a question of fact as to whether

the defendants had acted negligently. See id. at 1576-77

& n.l. We turn now to examine the basis of the district

court’s decision and the doctrine that in fact shields the

defendants from liability.

II. THE FAIR REPORT PRIVILEGE

The district court’s grant of summary judgment was

predicated on the conclusion that “the defendants en-

joyed a conditional privilege to publish reports of gov-

ernmental proceedings.” Dameron, 575 F.Supp. at 1577.

There is no question that, as a matter of District of

Columbia law, publications do enjoy a conditional fair

report privilege. See, e.g., Phillips v. Evening Star News-

paper Co., 424 A.2d 78, 88-90 (D.C.App.1980), cert.

denied, 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848

(1981) ; see also RESTATEMENT (SECOND) OF TorRTs § 611.

However, the district judge erred in concluding that the

privilege applied to the facts of this case. The condi-

tional immunity that applies to the publication of fair

and accurate reports of official proceedings is an ex-

ception to the common law rule that one who repeats

or republishes a defamation uttered by another “adopts”

6a

it as his own. “ ‘The basis of the privilege is the interest

of the public in having information made available to

it as to what occurs in official proceedings and public

meetings.’” Bufalino v. Associated Press, 692 F.2d 266,

271 (2d Cir.1982), cert. denied, 462 U.S. 1111, 103

S.Ct. 2463, 77 L.Ed.2d 1340 (1983) (quoting RESTATE-

MENT (SECOND) OF TORTS §611 comment a). The

availability of the privilege encourages the media to dis-

seminate official records—whether verbatim or in fair

summaries—without fear of liability for any false, de-

famatory material that they might contain. Jd.

The privilege’s underlying purpose—encouraging the

dissemination of fair and accurate reports—also sug-

gests a natural limit to its application. Thus, if the

reports are “ ‘garbled or fragmentary to the point where

a false imputation is made about the plaintiff which

would not be present had a full and accurate report been

made,’ ” Curtis Publishing Co. v. Vaughn, 278 F.2d 23,

29 (D.C.Cir.), cert. denied, 364 U.S. 822, 81 S.Ct. 57, 5

L.Ed.2d 51 (1960), (quoting HARPER & JAMES, ToRTS

432-33 (1956)), or if the reports are otherwise unfair

or inaccurate, the privilege does not apply and the pub-

lisher is subject to liability. The privilege is similarly

unavailable where the report is written in such a man-

ner that the average reader would be unlikely to under-

stand the article (or the pertinent section thereof) to

be a report on or summary of an official document or

proceeding. It must be apparent either from specific

attribution or from the overall context that the article

is quoting, paraphrasing, or otherwise drawing upon

official documents or proceedings. Thus, the Second Cir-

cuit has ruled that the privilege “should not be inter-

preted to protect unattributed, defamatory statements

supported after-the-fact through a frantic search of

official records,” Bufalino, 692 F.2d at 271; and the

Seventh Circuit has observed that the privilege is not

properly applicable where the government record is

7a

“merely part of one’s research.” Gertz v. Robert Welch,

Inc., 680 F.2d 527, 5386 (7th Cir.1982), cert. denied, 459

U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983). See

also Phillips, 424 A.2d at 89 (“two major hurdles in the

privilege ... [1] fair and accurate reportling] .. .

{and 2] proper attribution’’).

These conclusions flow readily from an understanding

that the intended beneficiary of the privilege is the pub-

lic, not the press. The privilege is not simply a conve-

nient means for shielding the media from tort liability.

Rather, the privilege springs from the recognition that

in a democratic society, the public has both the right and

the need to know what is being done and said in govern-

ment—even if some of that is defamatory. The public’s

strong interest in keeping abreast of public affairs, how-

ever, is not served by reports that are so minimally re-

lated to governmental proceedings that the reader would

not realize that any governmental report or proceeding

was being described. Nor are such interests served by

inaccurate or faithless summaries of such reports.

The present situation seems to us to fall outside the

scope of the privilege carved out in D.C. law. The chal-

lenged passage is part of a very brief factual piece

about safety at National Airport, which in turn is part

of a larger inquiry into the circumstances surrounding

the crash of Flight 90. Although these topics are cer-

tainly of interest to the public, they do not relate directly

to governmental proceedings. Nor is the specific refer-

ence to the Mt. Weather crash tied to any particular

governmental report or proceeding. The defendants have

argued that their reference to the Mt. Weather crash

should qualify for the privilege as a concise summary of

the official conclusions of the NTSB, as laid out in its

report of the incident. We cannot agree. There are

many instances where reliance on an NTSB report

would immunize an article—for example, in a news story

contemporaneously reporting the release of the NTSB’s

8a

report—but this is not one of them. The challenged

assertion is simply offered as historical fact without any

indication of its source. Neither the particular sentence

in which the alleged defamation appears, nor the sidebar

as a whole mentions the NTSB, and nothing in the piece

indicates that the statement is intended as a summary of

the NTSB’s official report. Although the principal article

on the Air Florida crash does refer a number of times

to the NTSB, we do not think these references are suffi-

cient to indicate that the part of the sidebar at issue

was summarizing conclusions of the NTSB—the two

pieces are simply too unrelated, the connection between

the references to the NTSB in the one and the allegedly

implicit references to the NTSB in the other are simply

too remote. In short, nothing in the article gives the

reader any reason to believe that the allegedly defama-

tory statement is intended as a summary of an NTSB

finding. Rather, the reader is left with the impression

that the conclusion is that of the article’s author based

on his own research—which may or may not have in-

cluded government reports. Had the author attributed

the report to its source, the reader would know that he

was simply being informed of the NTSB’s view and

could then evaluate the statement accordingly. The de-

famatory potential of an unattributed statement of what

is apparently an accepted fact presents a far different

situation.

We also reject the suggestion that the researcher’s

actual reliance on the NTSB’s report is sufficient to

qualify the resulting statement for the privilege. We

think this is an example of the government report being

“merely part of one’s research” and that such a show-

ing, although perhaps tending to demonstrate good faith,

is insufficient to establish an entitlement to the protec-

tion of this particular libel defense. Allowing mere reli-

ance to suffice would in no way advance the underlying

purposes of the exception. Consequently, we conclude

9a

that the fair report privilege is inapplicable. Our reso-

lution of this issue renders it unnecessary to decide

whether the statement, if properly attributed, would have

satisfied the additional requirements of fairness and

accuracy.

III. THe PUBLIC FIGURE DOCTRINE

The defendants also argue that the grant of summary

judgment should be affirmed because Dameron is a “pub-

lie figure” (as distinguished from a “public official’’)

and consequently cannot prevail absent proof of malice.

Whether the plaintiff is a public figure is a question of

law to be resolved by the court. See Waldbaum v. Fair-

child Publications, Inc., 627 F.2d 1287, 1293 n. 12 (D.C.

Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.

2d 128 (1980). Here, the district judge ruled that Dam-

eron was not a public figure. It is true, as the district

court held, that Dameron can not fairly be said to have

“injected” himself into the controversy. This one factor,

however, is not the be-all and end-all of public figure

status. Injection is not the only means by which public-

figure status is achieved. Persons can become involved

in public controversies and affairs without their consent

or will. Air-controller Dameron, who had the misfor-

tune to have a tragedy occur on his watch, is such a

person. We conclude that Dameron did become an in-

voluntary public figure for the limited purpose of discus-

sions of the Mt. Weather crash.

The public-figure doctrine originated in Curtis Publish-

ing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d

1094 (1967). In that case the Supreme Court added

“public figures” to the category of plaintiffs who must

plead and prove actual malice to recover in a libel action.

The Court indicated that public figure status could be

attained “by position alone” or “by . . . purposeful ac-

tivity amounting to a thrusting of [one’s] personality into

the ‘vortex’ of an important public controversy,” id. at

10a

155, 87 S.Ct. at 1991, and that such a person normally

“eommanded sufficient continuing public interest and had

sufficient access to the means of cov .ter-argument to be

able ‘to expose through discussion the falsehood and

fallacies’ of the defamatory statements.” Jd. (quoting

Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641,

648, 71 L.Ed. 1095 (1927) (Brandeis, J., dissenting) ).

As the public figure doctrine has developed, a distinc-

tion has grown up between general and limited-purpose

public figures. See Gertz v. Robert Welch, Inc., 418 U.S.

323, 351-52, 94 S.Ct. 2997, 3012-13, 41 L.Ed.2d 789

(1974). In Waldbaum we noted that “[flew people...

attain the general notoriety that would make them public

figures for all purposes.” Jd. at 1296. Dameron is neither

a person of general notoriety nor a person who has with

“vigor and success” sought the public’s attention. Cf.

Gertz, 418 U.S. at 342, 94 S.Ct. at 3008. He is an ordi-

nary citizen who was completely unknown to the public

before the Mt. Weather crash, never sought to capitalize

on the fame he achieved through the Mt. Weather crash,

and never acquired any notoriety apart from the crash.

Dameron is not by any means, therefore, a general pur-

pose public figure. However, we think the public-figure

doctrine, fairly applied to the facts of this case, encom-

passes Mr. Dameron and raises him, involuntarily, to the

status of limited-purpose public figure.

In Waldbaum this court set out a three-part frame-

work for analyzing whether someone has become a limited-

purpose public figure. Under this test the court must de-

termine that there is a public controversy; ascertain that

the plaintiff played a sufficiently central role in that con-

troversy; and find that the alleged defamation was ger-

mane to the plaintiff’s involvement in the controversy.

See Waldbaum at 1296-98. Central to the second prong

of the Waldbaum analysis is an inquiry into the plaintiff’s

voluntary actions that have caused him to become em-

broiled in a public controversy. See also Gertz, 418 U.S.,

lla

at 345, 94 S.Ct. at 3009 (“those classed as public figures

have thrust themselves to the forefront of particular pub-

lic controversies”). This analysis clearly must be modi-

fied somewhat to accommodate the possibility of a poten-

tially involuntary limited-purpose public figure that is

presented here. We think, however, that the facts here

satisfy the Supreme Court’s definition of a public figure

and an appropriately modified Waldbaum inquiry. There

was indisputably a public controversy here. Nor can it

be doubted that the alleged defamation was germane to

the question of controller responsibility for air safety in

general and the Mt. Weather crash in particular. There

is no question that Dameron played a central, albeit in-

voluntary, role in this controversy. Thus, it only remains

to inquire whether Dameron’s relatively passive involve-

ment in this controversy suffices to anyway qualify him

as a public figure.

As we have noted above, the Waldbaum framework,

and its second prong’s requirement of activity and injec-

tion, provides the primary and most frequent route to

limited-purpose public figure status. Nevertheless, the

Supreme Court has recognized that it is possible, although

difficult and rare, to become a limited-purpose public fig-

ure involuntarily. In Gertz the Supreme Court noted that

it is “possible to become a public figure through no pur-

poseful action of [one’s] own” although it added that “the

instances of truly involuntary public figures must be ex-

ceedingly rare.” Id. at 345, 94 S.Ct. at 3009 (emphasis

added). We think that within the very narrow frame-

work represented by the facts of this case, such has been

Dameron’s fate. By sheer bad luck, Dameron happened to

be the controller on duty at the time of the Mt. Weather

crash. As in Gertz, Dameron “assume[d a] special prom-

inence in the resolution of [a] public question[].” Gertz

at 351, 94 S. Ct. at 3012. He became embroiled, through

no desire of his own, in the ensuing controversy over the

causes of the accident. He thereby became well known to

12a

the public in this one very limited connection. The nu-

merous press reports on the Mt. Weather crash introduced

by the defendants in their motion for summary judgment

amply demonstrate this. Dameron’s name and likeness

were often used in these reports. See R.E. at 134-49

(reproducing articles from The Washington Post, The

Star-News, UPI and the PATCO Newsletter). It was in

that same very limited connection that The Washing-

tonian’s brief and oblique reference to him surfaced years

later.

Paradoxically, the magazine article never mentions

Dameron’s name or other identifying characteristics. If

Dameron had not been previously linked with accounts of

the tragedy, no magazine reader could tie the alleged

defamation to Dameron. Indeed, it was partly because

of the defendant’s public notoriety that he was identifia-

ble at all from the oblique reference in The Washing-

tonian.

There is a marked contrast between the controlling

facts of this case and the facts of Time, Inc. v. Firestone,

424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), a

case Dameron claims shows that he was not a public

figure. Indeed, Firestone butresses [sic] our conclusion

that Dameron is a public figure for the limited purpose of

discussion of the Mt. Weather crash. In Firestone the

scion of a prominent family of industrialists was sued

for divorce. The charges and countercharges in the suit

were sensational and the press displayed a great deal of

interest in the proceedings. The Court, however, declined

to find Mrs. Firestone even a limited-purpose public fig-

ure merely because of her much-publicized divorce trial.

The Court found that Mrs. Firestone’s resort to the judi-

cial process to arrange her marital affairs was, for all

practical purposes, involuntary and that the controversy,

if any, over her marriage and divorce was a private one.

Id. at 454-55, 96 S.Ct. at 965-66. The Court said that

“even though the marital difficulties of extremely wealthy

13a

individuals may be of interest to some portions of the

reading public” a divorce proceeding was not a public

controversy. /d. at 454, 96 S.Ct. at 965. That is, public

interest in a controversy does not make a public con-

troversy. The newsworthiness of an event is not the

measuring stick for identifying public controversy. Nor

is a voyeuristic interest in someone’s private affairs an

appropriate substitute. Dameron’s situation, however, is

far removed from that of Mrs. Firestone. Dameron was

at the center of a controversy involving the loss of many

lives in a mishap involving a public carrier. At issue was

the management of a program administered by the FAA,

an arm of the government. Another governmental agency

—the NTSB—conducted an extensive, public investigation

into the events surrounding the Mt. Weather Crash.

Dameron appeared at these hearings and testified for

many hours about his role in the crash. The hearings,

and Dameron’s role in them, were widely publicized. We

think that, like it or not, Dameron was embroiled in a

public controversy.

Nor does Wolston v. Reader’s Digest Association, Inc.,

443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979),

compel a different conclusion. Dameron was a central

figure, however involuntarily, in the discrete and specific

publie controversy with respect to which he was allegedly

defamed—the controversy over the cause of the Mt.

Weather crash. Wolston, by contrast, was *not defamed

with respect to the controversy in which he played a cen-

tral role—his refusal to testify before a grand jury—but

rather with respect to a controversy in which he played a

role that was at most tangential—the investigation of

Soviet espionage in general. Jd. at 167, 99 S.Ct. at 2707.

We therefore conclude that plaintiff was an involuntary

public figure for the very limited purpose of discussion

of the Mt. Weather crash. We pause to emphasize, how-

ever, the limited scope of our holding. The circumstances

in which an involuntary public figure is created will, we

are confident, continue to be few and far between.

l4a

Because plaint‘ff himself contends that he is still known

to the public in connection with the Mt. Weather crash

and would be immediately recognized as the target of

The Washingtonian’s reference even without the use of

his name, we need not consider the question whether mere

lapse of time would free plaintiff from his involuntary

public figure status. And because of our disposition of

this issue, we need not reach the question whether the

allegedly defamatory stat.ment ought to have been ruled

true as a matter of law.

The defendants have also argued to this court that the

grant of summary judgment should be affirmed on the

alternate ground that Dameron is a public official and

therefore must prove actual malice, which he admits he

cannot do, and which he did not allege. Because of our

conclusion that Dameron was an involuntary, limited-

purpose public figure, we need not reach this question.

CONCLUSION

We conclude that the district judge erred in holding

the fair report privilege applicable to this case, but affirm

the district court’s entry of summary judgment for the

defendants on the basis of our finding that plaintiff was

an involuntary public figure, and plaintiff’s admission

that he has not pleaded and cannot prove actual malice.

It is so ordered.

15a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

Civ. A. No. 83-1248

MERLE W. DAMERON,

Plaintiff,

V.

WASHINGTON MAGAZINE, INC., et al.,

Defendants.

Dec. 21, 1983

OPINION

HAROLD H. GREENE, District Judge.

This is a libel action. As part of.a story on the ill-

fated Air Florida flight which crashed into a bridge over

the Potomac, Washingtonian magazine wrote an article

dealing in a general vein with airplane crashes and air

safety. As part of that article, the magazine published

this statement:

Since then—despite hair-raising talk among con-

trollers about computer malfunctions, fatigue-in-

duced errors, and reports of “near misses” in midair

—it is believed that no major crash has been caused

solely by controller errors, They have been assigned

partial blame in a few accidents, including the 1974

crash of a TWA 727 into Mt. Weather in Virginia

upon approach to Dulles (92 fatalities) ....

16a

Plaintiff was the sole air traffic controller on duty re-

sponsible for the approach of the TWA 727 (Flight 514)

which crashed into Mt. Weather. He claimed that the

language referred to above was false and defamatory

and he sued for libel. Presently pending before the Court

is defendants’ motion for summary judgment.

A number of defenses are presented as part of the

motion. Although it is not necessary, in view of the

Court’s disposition of the motion, to make a definitive de-

cision on these matters,’ in the Court’s view plaintiff is

not a public figure’ or a public official,* and the Court

also concludes that, if a conditional privilege were not

applicable (see infra), there would be an issue of fact on

the question whether defendants acted negligently. The

Court does find, however, that defendants enjoyed a con-

ditional privilege to publish reports of governmental pro-

ceedings, and that since there is no claim of malice, their

publication of the story in question does not expose them

to liability.

A publication has a conditional privilege to publish re-

ports of governmental proceedings. See Phiilips v. The

Evening Star Newspaper Company, 424 A.2d 78 (D.C.

1The Court’s views are recorded, however, in the event that

there is an appeal.

? Wolston v. Reader’s Digest Association, Inc., 443 U.S. 157, 99

S.Ct. 2701, 61 L.Ed.2d 450 (1979) ; Arctic Co. Ltd. v. Laudoun [sic]

Times Mirror, 624 F.2d 518 (4th Cir. 1980) ; Fleming v. Moore, 221

Va. 884, 275 S.E.2d 632, 637 (1981) ; see generally, Gertz v. Robert

Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974);

Waldbaum v. Fairchild Publications Inc., 627 F.2d 1287 (D.C. Cir.

1980).

3 Jenoff v. Hearst Corp., 644 F.2d 1004 (4th Cir. 1981); see

generally Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d

597 (1966). Contrary to defendants’ assertion, not every individual

performing work which “citizens have entrusted to government”

(Memorandum at 12) is a public official within the meaning of the

defamation laws.

emma iii

17a

App. 1980); Eldredge, The Law of Defamation 419-27

(1978); Restatement (Second) of Torts $611 (1976).

This privilege may be overcome only either by a showing

of actual malice,* which, of course, is not alleged here, or

by a demonstration that the account does not constitute

a fair and accurate report of the proceedings.

The National Transportation Safety Board investigated

the Mt. Weather crash and it published an official report

thereon in November 1975. The Board’s three-member

majority stated that the crash was caused primarily by

the decision of the TWA 514 to descend to a low altitude,

but it further found that the issuance of the approach

clearance [by the air traffic controller] when the flight

was 44 miles from the airport on an unpublished route

without clearly defined minimum altitudes was one of

three contributing factors. Report»at 1-2. The two dis-

senters were even more emphatic. In their view, sub-

stantial responsibility for the accident had to be assigned

to the controller’s misreading of the appropriate regula-

tions.° The Washingtonian article, of course, stated no

more than that controller error had been “assigned partial

blame” for this particular tragedy, and it thus accurately

reported the conclusions of the Board.

Plaintiff concedes that a “fair comment” or “record”

privilege immunizes a publication when it constitutes a

“fair and substantially correct statement of the record.”

Memorandum at 25; see Alexandria Gazette Corp. v.

West, 198 Va. 154, 93 S.E.2d 274, 279 (1956). However,

he claims that (1) the proceeding before the National

Transportation Board was not identified as such in the

article, and (2) the U.S. District Court for the District

of Virginia has held that plaintiff had not been negli-

4 Phillips v. Evening Star, supra, 424 A.2d at 87.

5 Report at 45-52. At deposition, plaintiff conceded that his

actions were, in the opinion of the National Transportation Safety

Board, a contributing cause of the accident.

a aici amaiemillll

eh a,

18a

gent and had performed properly his air controller duties

in connection with the 1974 crash.°

The name of the governmental body which found plain-

tiff partially to blame for the crash and the precise desig-

nation of the proceeding in which such finding was made

are irrelevant to the privilege and to the reasons sup-

porting it. As long as there was such a body with the

requisite authority (see infra) and such a proceeding, it

makes no difference whether they are identified in the

article.

As for the District Court decision, it was rendered in

an unrelated, wrongful death action brought by relatives

of the pilot and co-pilot of Flight 514. Defendants’ con-

ditional privilege is not defeated because there was col-

lateral litigation in which a court made a finding at odds

with that of the governmental body whose proceedings

defendants accurately reported.’

The National Transportation Safety Board is an

agency established by the Congress for the task of as-

certaining the causes of transportation disasters, partic-

ularly in the air traffic field, and it publicizes its findings

broadly in order to foster public understanding of safety

issues. Discussion and comment regarding those find-

ings is in the public interest. Such discussion would be

seriously jeopardized if a publication were subjected to

the hazards of a defamation action upon reporting the

Board’s findings merely because another tribunal, faced

with different issues and operating under different stand-

6 That decision was affirmed by the U.S. Court of Appeals for

the Fourth Circuit.

7It is not clear whether defendants could even reasonably have

found an unpublished opinion of the District Court for the Eastern

District of Virginia captioned under names not directly related to

the NTSB investigation.

8 Compare Phillips v. Evening Star, supra, 424 A.2d at 89.

~——

19a

ards of proof, came to a conclusion at odds with that

reached by the Board.®

Plaintiff’s underlying claim in opposition to the de-

fense of publication of a governmental proceeding—as to

the other defenses—is that factual disputes exist and

that summary judgment should therefore be considered

only gingerly. It is not clear what factual dispute there

is regarding the defense of fair reporting of a govern-

mental finding. Plaintiff’s only point in that regard ap-

pears to be that fact-finders may differ as to whether

the statement in the Washingtonian was a fair and ac-

curate statement of the record of the NTSB report.

Summary judgment is more appropriately granted in

defamation actions than in other circumstances in order

that the harassment that might otherwise chill essential

First Amendment freedoms may be avoided. See, e.g.,

Washington Post v. Keogh, 365 F.2d 965, 968 (D.C.Cir.

1966); Nader v. de Toledano, 408 A.2d 31, 43 (D.C.

App. 1979). The language of the report of the NTSB so

clearly supports the statement in the Washingtonian that

air traffic controllers were partially responsible for the

crash on Mt. Weather that it would be inconsistent with

the principles discussed above to require the publication

to undergo a trial.

Defendants’ motion for summary judgment will be

granted.

® The District Court’s decision in the action brought by the pilot

and co pilot did not extinguish the Board’s conclusions. Plaintiff’s

argument would be more compelling if a body having jurisdiction,

such as a court on direct review from the NTSB (49 U.S.C. § 1655),

had reversed the Board’s findings.

10 Tt is to be noted that plaintiff was not named in the article or

otherwise identified in any way.