Appendix — Liberty Lobby, Inc. v. Dow Jones & Co.

b j Suprans Court, Va

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~ 15 1968

No. 88- | JUN

Pa SEPITE. SPANIOL, Re

ha CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

Tia ARREST

LIBERTY LOBBY, INC.,

Petitioner,

—against—

DOW JONES & CO., INC.

and RICH JAROSLOVSKY,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

MARK LANE

132 Third Street, S.E.

Washington, D.C. 20003

(202) 547-6700

Attorney for Petitioner

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INDEX OF APPENDICES

Appendix A Order of the United

States Court of

Appeals for the

District of Columbia,

April 12, 1988

Appendix B Order of the United

States Court of

Appeals for the

District of Columbia,

March 18, 1988

Appendix C Order of the United

States Court of

Appeals for the

District of Columbia,

March 18, 1988

Appendix D Order of the United

States Court of

Appeals for the

District of Columbia,

February 25, 1988

Appendix E

Appendix F

Appendix G

Appendix H

i oe

Appellant's Motion to

Reconsider Appellant's

Appellant's Application

for Disqualification of

Honorable Robert H. Bork

Pursuant to Title 28

Section 455

United States Code,

February 5, 1988

Opinion by Judge Bork

for the United States

Court of Appeals for the

District of Columbia,

February 5, 1988

Order of the United States

Court of Appeals for the

District of Columbia,

December 7, 1987 by

Judge Bork

Order of the United States

Court of Appeals for the

District of Columbia,

December 7, 1987

Appendix

Appendix

Appendix

Appendix

-iii-

Appellant's Motion for

Disqualification of

Honorable Robert H. Bork

Pursuant to Title 28

Section 455

United States Code,

November 23, 1987 189

Order of the

United States Court

of Appeals for the

District of Columbia,

November 19, 1987 203

Order of the United

States Court of

Appeals for the

District of Columbia,

November 4, 1987 205

Order of the United

States District Court for

the District of Columbia,

September 25, 1986 207

Appendix M

-iyv-

Plaintiff's Motion

Asserting Bias or

Prejudice of the

Court and For

Disqualification of

Judge Jackson,

September 25, 1986 209

Exhibit A Transcript

February 27, 1986 274

APPENDIX A

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

Vv.

Dow Jones & Company, Inc., et al.

ORDER

Upon consideration of Appellant's

Motion for Reconsideration of its

Application for Disqualification of

Judge Bork due to Misconduct of and

Deception Practiced by Appellees and

Their Counsel and for Sanctions, the

opposition thereto and of the reply it is

_ =

ORDERED, by the Court, that

Appellant‘s Motion is denied.

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY:

Robert A. Bonner

Deputy Clerk

FILED APRIL 12, 1988

wifes

APPENDIX B

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

v.

Dow Jones & Company, Inc., et al.

BEFORE: Wald, Chief Judge; Robinson,

Mikva, Edwards, Ruth B. Ginsburg, Starr,

Silberman, Buckley,* Williams, D.H.

Ginsburg and Sentelle, Circuit Judges

ORDER

Appellant's suggestion for rehearing

en banc has been circulated to the full

Court. No member of the Court requested

the taking of a vote thereon. Upon

consideration of the foregoing, it is

ORDERED, by the Court, en banc, that

the suggestion is denied.

Per Curiam

FOR THE COURT:

“ CONSTANCE L. DUPRE, CLERK

BY:

Robert A. Bonner

Deputy Clerk

"Circuit Judge Buckley did not

participate in this order.

FILED MAR 18, 1988

APPENDIX C

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

Vv.

Dow Jones & Company, Inc., et al.

BEFORE: Edwards and Williams, Circuit

Judges

ORDER

Upon consideration of Appellant's

Petition for Rehearing, filed February

19, 1988, it is

oe

ORDERED, by the Court, that the

Petition is denied.

Per Curiam

Constance L. DuPre

CLERK

bY:

Robert Bonner

Deputy Clerk

FILED MAR 18, 1988

APPENDIX D

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

Vv.

Dow Jones & Company, Inc., et al.

BEFORE: Edwards and Starr, Circuit

Judges

ORDER

Upon consideration of Appellant's

Motion to Reconsider Appellant's Motion

for Disqualification it is

mais

ORDERED, by the Court, that

appellant's motion is denied.

Per Curiam

Constance L. DuPre, Clerk

BY:

Catherine L. Bateman

Deputy Clerk

FILED FEB 25, 1988

APPENDIX E

United States Court of Appeals

For the District of Columbia

No. 86-7017

Liberty Lobby, Inc., Appellant

Vv.

Dow Jones & Company, Inc.,

and Rich Jaroslovsky, Appellees.

APPELLANT'S MOTION TO RECONSIDER

APPELLANT'S APPLICATION FOR

DISQUALIFICATION OF

HONORABLE ROBERT H. BORK PURSUANT TO

TITLE 28 SECTION 455 UNITED STATES CODE

The appellant respectfully requests

that the Court recuse Honorable Robert H.

Bork from participating in the decision

of this cause which was argued on Decem-

ber 8, 1987, in that his impartiality

might be reasonably questioned as a

result of his close association with two

is.

important figures in this case. On

November 23, 1987, prior to the

scheduled argument of this case, ap-

pellant filed a motion respectfully

requesting that Honorable Robert H. Bork

recuse himself. On December 7, 1987

this Court denied that application for

the reasons set forth in a five page

memorandum written by Judge Bork.

A substantial change in circumstance

and newly discovered evidence, each made

available after the decision of this

Court on December 7, 1987, provide the

basis for this application for recon-

Sideration. The appellant submits

herewith a statement of points and

authorities and other documents setting

forth in some detail both the change in

= eo

circumstance and the new discovered

evidence in support of this motion.

February 4, 1988

Respectfully submitted,

Mark Lane

132 Third Street, S.E.

Washington, D.C. 20002

(202) 547-6700

Counsel for Appellant

ae oo

United States Court of Appeals

For the District of Columbia

No. 86-7017

Liberty Lobby, Inc., Appellant

7 a

Dow Jones & Company, Inc.,

and Rich Jaroslovsky, Appellees.

STATEMENT OF POINTS AND AUTHORITIES

IN SUPPORT OF APPELLANT'S MOTION

FOR RECONSIDERATION OF APPELLANT'S

APPLICATION FOR DISQUALIFICATION

OF HONORABLE ROBERT H. BORK

PURSUANT TO TITLE 28 SECTION 455

UNITED STATES CODE

On November 23, 1987 the appellant

moved for the disqualification of Honor-

able Robert H. Bork pursuant to Title 28

Section 455 of the United States Code.

In that motion the appellant asserted

that a basis for the lawsuit was an ar-

ticle published by appellees and written

by Suzanne Garment after consultation

=)

with her husband, Leonard Garment,

Esquire. The record reveals that Mrs.

Garment suffered from a lack of knowl-

edge regarding legal matters and that

although her article was about the

impact of the law on public figure

defamation cases, she knew nothing about

the leading cases in that area and in

fact believed that “the Sullivan Doc-

trine,” as she referred to it, might be

a treatise on defamation by a professor

Sullivan. On the other hand, her hus-

band Leonard Garment, Esquire is a

well-known attorney who maintains im-

portant contacts with various branches

of the United States government, includ-

ing the judiciary. In support of that

contention the appellant submits, as

Exhibit A pages 86 and 89 of the January

1988 issue of Regardies magazine which

= |

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sets forth in an article entitled “The

Power Elite" the “one hundred most in-

fluential people in private Washington”

according to that business magazine.

It is uncontroverted, based upon the

testimony of Suzanne Garment at a depo-

sition in this case, that she wrote the

defamatory article and that she had con-

sulted with her husband, Leonard Gar-

ment, Esquire, about it. Efforts by

Liberty Lobby, Inc. at the deposition of

Suzanne Garment, to secure additional

information as to the role of Leonard

Garment, Esquire in the preparation of

the article were unsuccessful since Mrs.

Garment, upon the advice and instruction

of her counsel, who also served as coun-

sel for Dow Jones & Co., Inc., refused

to answer, and pleaded a privilege as a

atGn

result of the relationship with her hus-

band.

In the memorandum in support of its

motion for disqualification filed with

this Court on November 23, 1987, ap-

pellant asserted that both Leonard

Garment, Esquire and Suzanne Garment

held themselves out to be close friends

and associates of Judge Bork and were

apparently the two most active persons

in the United States in support of Judge

Bork's nomination to the United States

Supreme Court. In that memorandum ap-

pellant asserted that Mr. Garment ap-

peared on numerous radio and television

programs as the unofficial spokesperson

for Judge Bork during that period,

released Judge Bork's position to the

news media at least on one occasion.

ostensibly with Judge Bork's permission,

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and in addition, it was widely reported

in the press that Suzanne Garment, the

author of the defamatory article in this

case was also the author, with her hus-

band, of documents widely circulated in

support of Judge Bork's nomination to

the Supreme Court.

An important aspect of the appeal

pending before this Court is the asser-

tion by the appellant that Honorable

Thomas Penfield Jackson, the United

States District Judge in this case,

committed error by refusing to recuse

himself as a result of his relationship

with Leonard Garment, Esquire.

It appeared to appellant that Judge

Bork's impartiality in this matter might

be reasonably questioned and that due to

actions which have taken place outside

the four corners of the courtroom, it

wiDe

might be asserted that Judge Bork would

be more favorably inclined toward the

appellees.

The appellees and their counsel, who

may possess far greater information

about this matter than thus far ascer-

tained by the appellant, declined to

take a position regarding the motion to

disqualify Judge Bork.

On December 7, 1987, this Court

denied the Motion for Disqualification

of Judge Bork and published a five page

memorandum written by Judge Bork in sup-

port of that denial. In that memorandum

Judge Bork said “[fJirst, appellant

asserts that the Garments were active

Supporters of my nomination to be an

Associate Justice of the United States

Supreme Court." (Judge Bork's Memoran-

dum, p. 1) In his memorandum Judge Bork

=)’ =

denied that Mr. Garment's actions were

in any way coordinated or endorsed by

him and that “many groups and indi-

viduals took strong public positions for

or against my confirmation.” Judge

Bork’'s Memorandum, p. 3) Judge Bork

continued “[wlere I to recuse myself

every time an individual or group who

had supported or opposed my confirmation

was connected with a lawsuit, however

tangentially, I would, in my opinion, be

failing in my judicial duty and be of

greatly diminished usefulness to this

Court and the litigants it serves.”

Judge Bork implied that Leonard

Garment was one of many individuals who

favored or opposed his confirmation. In

addition, his memorandum contemplated

his continued service as a member of the

——eeEE~*~

=@a

United States Court of Appeals. How-

ever, Judge Bork has now resigned from

the United States Court of Appeals, sub-

sequent to December 7, 1987, and one of

the reasons previously proffered for

refusing to disqualify himself in this

case has been eliminated by the new

circumstances created by his resignation

from the Court. In addition, Suzanne

Garment, in an article published subse-

quent to the memorandum of Judge Bork

and the decision of this Court to deny

the motion disqualifying Judge Bork, has

asserted that her husband, Leonard

Garment, “was one of the leaders” of a

group established “to save the Bork

nomination if possible, to save Bork's

reputation in any case, and to expose

what had been done to him and to the

federal judiciary.” (Commentary,

———————————

January 1988, p. 23) In her impassioned

and highly political eleven page article

entitled "The War Against Robert H.

Bork" Mrs. Garment also asserted that "I

myself joined him [Leonard Garment,

Esquire] in the effort [to save the

nomination of Judge Bork].” (Id.) The

relevant page of the Commentary article

written by Mrs. Garment is submitted

herewith as Exhibit B. On December 14,

1987 the Legal Times, a law journal

published in Washington, D.C., devoted

part of its front page to this matter.

The author of that article reported that

Leonard Garment, Esquire stated that he

and Judge Bork are in the same poker

Circle. According to the author of the

article, Mr. Garment added that Judge

Bork's attendance at the poker games is

“spotty.” The relevant pages of Legal

=:

Times, p. 1 and p. 12, are submitted

herewith as Exhibit C.

While the past relationship of Mr.

and Mrs. Garment and Judge Bork are a

continuing matter of concern to the ap-

pellant, as well as to all those con-

cerned about the fair administration of

justice (please see the opinions of con-

temporary legal scholars on questions of

ethics referred to in the Legal Times

article, Exhibit C) the future rela-

tionship of Judge Bork and Mr. and Mrs.

Garment also raises troubling ques-

tions. While articles have been pub-

lished in the press, including the Legal

Times (Exhibit C, p. 1) as well as

Newsweek, speculating that Judge Bork

will join the American Enterprise Insti-

tute where Suzanne Garment now serves as

a scholar in residence, the appellant

x |

Cannot assert that such is the case.

The public relations office at American

Enterprise Institute, stating that it

was acting upon instructions, would only

respond “no comment at this time” when

asked if Judge Bork was joining that

Organization. According to the Legal

Times, Judge Bork's office also

responded "No comment" when asked to

respond to the earlier report published

in Newsweek. (Exhibit c, p. 2).

However, less reluctant to publish

its relationship with Judge Bork was the

National Review which, subsequent to the

decision of this Court denying Ap-

pellant's Motion to Disqualify Judge

Bork, announced that beginning in March

of 1988, a fortnightly “Commentator”

would be published. Among the commenta-

tor announced are Leonard Garment,

oo

Suzanne Garment and Robert Bork. Ap-

pellant submits herewith the relevant

pages of the National Review dated

February 19, 1988 as Exhibit D.

In his memorandum, Judge Bork im-

plied that his relationship with Leonard

Garment would not render recusal proper

even if that relationship were more

substantial due to Mr. Garment's “rather

tenuous connection with this lawsuit."

(Judge Bork's Memorandum p. 4). Judge

Bork found that “Leonard Garment's only

connection to this action is the fact

that his wife may have discussed with

him her intention to write a column

concerning Liberty Lobby." (Emphasis

Added) Actually, when asked if she

discussed the proposed column with her

husband Mrs. Garment responded "I must

have." (Suzanne Garment Deposition,

Se

November 18, 1985, p. 155) Almost imme-

diately thereafter Mr. LoBue, counsel

for Mrs. Garment and the defendants,

instructed the witness that “there is an

interspousal immunity at this point

which she can claim." (Id.) The record

therefore reveals that Mrs. Garment ap-

parently did discuss the proposed column

with her husband before she wrote it and

is barren of any further information

Since the privilege was invoked. Under

the circumstances it is difficult to

understand how Judge Bork can assert

unambiguously, as he did, in his memo-

randum, that “Leonard Garment's only

connection to this action is the fact

that his wife may have discussed with

him her intention to write a column con-

cerning Liberty Lobby."

soe.

Mr. Garment, without doubt, held

himself out to be the spokesperson for

Judge Bork, not merely one of many per-

sons who took a position on the nomina-

tion. It cannot be claimed that the

tenuous relationship which Judge Bork

found to exist between this case and

Leonard Garment also exists between

Suzanne Garment, the author of the

defamatory article in the case. On

October 26, 1987, in an article entitled

“Influence, Epilogue on Bork: Leonard

Garment's Obsession" Mr. Garment is

reported as telling Martin Tolchin of

the New York Times that “it was his

wife, Suzanne, a political scientist and

a former columnist for the Wall Street

Journal who involved him in the Bork

dispute." That article is submitted

herewith as Exhibit E. Mr. Garment

=) =

reported that his wife Suzanne “was

madder than hell” at aspects of the in-

quiry into Judge Bork's qualifications.

Mr. Garment is quoted as saying of his

wife “[s]he got upset, so I got upset,

and the more I got into it, the madder I

got .*

According to the New York Times, the

result of the anger felt by Leonard Gar-

ment and Suzanne Garment was "a husband

and wife operation, with the Garments

working together on research, advertise-

ments, petitions, white papers, and news

releases."

While Judge Bork, in his memorandum

has asserted that “Mr. Garment's actions

in support of my nomination were not in

any way coordinated with or endorsed by

me" and that "Mr. Garment played no role

in my preparation for the hearings or in

et

any of my subsequent activities con-

nected with the confirmation process”

Mr. Garment's published view differs

sharply. (Judge Bork Memorandum, p. 3)

According to the New York Times Mr.

Garment and his son Paul “visited the

Borks on the eve of the Judge's sched-

uled meeting with President Reagan.”

(Exhibit E). The New York Times report

.

The city was awash with rumors that

Judge Bork would ask that his name

be withdrawn.

"Bob said that he was tired, he

was weary, he just wanted to get

some sleep,” Mr. Garment recalled.

"I said, ‘You have an obliga-

tion. This transcends Robert Bork.

You can't walk away from it.

They've corrupted the process.'"

“By giving up before it goes to

the Senate, you're conceding the

basic accuracy of their case," Mr.

Garment added.

Judge Bork took the matter

under advisement, and announced his

decision at a news conference two

Gays later. "I called him and said,

‘God bless you,'" Mr. Garment re-

called. "I said, ‘I'm going to help

continues:

=2@.

you.’ He said, “You do whatever you

want, but I'm not doing any cam-

paigning.”

(New York Times,

October 26, 1987, p. Al4)

In summation the New York Times

asserted that while Leonard Garment

“jumped into the battle unbidden,”

Garment “consulted frequently with Judge

Bork, a long-time friend, who authorized

him to issue at least one statement on

his behalf.” (Exhibit E)

On October 20, 1987 the New York

Times reported that Leonard Garment “has

been advising Judge Bork.” (Exhibit F)

xeafter, Judge Bork wrote to the New

York Timés stating that Mr. Garment was

not his advisor aad that he did not

coordinate his activitiesS~with the

Judge. (New York Times, October aa,

1987, Exhibit G) However, Judge Bork ic

also asserted that Leonard Garment "is a

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—iin

friend of long standing" and that he,

Judge Bork, “value[s] his [Garment's]

friendship and appreciate[s] his efforts

to aid me." (Id.)

Given the public record and the

record of this case, the conclusions

that Judge Bork's relationship with

Leonard Garment even if “more substan-

tial" could not adversely impact upon

the motion to disqualify Judge Bork and

that Judge Bork's conclusion that his

relationship with Leonard Garment fell

merely within a wide circle of friend-

ships, appear to be unsound. In view of

the public record, it cannot fairly be

said that the appellant has failed to

Show an appearance of bias or prejudice

sufficient to permit the average citizen

reasonably to question the judge's im-

partiality. It is that test which this

~$0—

Court held to be dispositive in U.S. v.

Heldt, 668 F.2d 1238 (D.C.Cir. 1981).

In the motion to disqualify filed on

November 23, 1987 the appellant asserted

that Mr. and Mrs. Garment held them-

selves out to be close friends and asso-

ciates of Judge Bork. By implication

Judge Bork denied the truthfulness of

that assertion in his memorandum.

(Judge Bork's Memorandum, pp. 3-4)

However, in writing to the New York

Times Judge Bork stated that Mr. Garment

was a friend of long-standing, which

appears to place him in a category more

akin to being a close personal friend

than merely within a wide circle.

The Law

The United States Court of Appeals

for the District of Columbia held that

whe

“Section 455 contains a provision call-

ing for disqualification in a ‘proceed-

ing in which [a judge's] impartiality

might be reasonably questioned,‘ [and]

we join our sister circuits in conclud-

ing that a showing of an appearance of

bias or prejudice sufficient to permit

the average citizen reasonably to ques-

tion a judge's impartiality is all that

must be demonstrated to compel recusal

under 455." United States v. Heldt,

668 F.2d 1238, 1277 (D.C. Cir. 1981).

In support of that contention the Court

of Appeals cited United States v.

Mirkin, 649 F.2d 78 (lst Cir. 1981); In

re International Business Machines

Corp., 618 F.2d 923, 929 (2d Cir. 1980);

re v. McKenzie, 581 F.2d 1114 (4th

Cir. 1978); Potashnick v. Port City

Const. Co., 609 F.2d 1101, 1111 (5th

_—————————————————

Yo

Cir. 1980), cert denied 449 U.S. 820,

101 S.Ct. 78 (1981); Roberts v. Bailar,

625 F.2d 125, 129 (6th Cir. 1980); SCA

Servs, Inc. v. Morgan, 557 F.2d 110 (7th

Cir. 1977); United States v. Poludniak,

No. 80-2133 (8th Cir. Aug. 14, 1981);

Wood v. McEwen, 622 F.2d 797, 802 (9th

Cir. 1981); United States v. Ritter, 540

F.2d 459 (10th Cir.) cert denied, 429

U.S. 951, 97 &.Ct. 370 (1976).

The District of Columbia Court of

Appeals addressed the question of the

recusal of the administrative officer

who acted in a adjudicative or quasi-

judicial capacity in Morrison v., Dis-

trict of Columbia Board of Zoning

Adjustment, 422 A.2d 347 (D.C.App.

1980). In Morrison the Court held that

it has generally been recognized that

the same rules requiring the recusal of

aSten

judicial officers are applicable to

administrative officers who act in a

adjudicative or quasijudicial capacity.

In that case, the court ruled:

In the absence of a statute provid-

ing otherwise, a judge must recuse

himself when his alleged bias arises

from outside the “four corners of

the court-room," Tynan v. United

States, 126 U.S. App. D.C. 206, 210,

376 F.2d 761, 765, cert denied, 389

U.S. 845, 88 §.Ct. 95, 19 L.Ed.2d

Ill. 1956), and results in “an

opinion on the merits on some basis

other than what a judge learned from

his participation of the case.” In

re Evans, D.C.App. 411 A.2d 984, 995

(1980), quoting United States v.

Grinnell Corp., 384 U.S. 563, 583,

86 S.Ct. 1698, 1710, 16 L.Ed.2d 778

(1966).

Morrison v. District of

Columbia, etc.

422 A.2d 347, 350 (D.C.

App. 1980)

In Evans cited above the Court con-

Cluded “the appearance of bias on the

part of the trial judge necessitates

reversal” 411 A.2d at 993, and found

————

oS

demonstrated by a party or counsel, in

such a matter, generally adversely

impacts upon the right of the public to

fair con- sideration of contested

matters. In this instance,

specifically, it might well defeat the

appellate process since Judge Bork,

having established contro- versial

Standards as to his own qualifi- cations

to be impartial might tend to apply

those same or similar standards to the

Challenge presented by the appeal

regarding the partiality of Judge

Jackson.

The holding by this Court in Heldt

that the “appearance” of bias or preju-

dice is all that is required to demon-

strate the propriety of recusal is

sound, as these proceedings have re-

vealed. No party and no lawyer, after

Ve

457

having demonstrated the clear appearance

of bias, should be placed in the uncom-

fortable position of being constrained

to investigate the details of the cir-

cumstances already brought to the atten-

tion of the court in summary form and to

compile evidence which might impact upon

the credibility of statements made.

Judge Bork enjoyed a working rela-

tionship with Mr. Garment, both Mr.

Garment and Mrs. Garment were the two

most active and public participants in

the effort to win the nomination to the

United States Supreme Court for Judge

Bork, Mr. Garment was a leader in that

effort, Mr. Garment and Judge Bork

apparently still play poker together,

Mr. Garment, Mrs. Garment and Judge Bork

are Commentators for the National Review

and Judg2 Bork and Mrs. Garment may soon

|

be working together at the American

Enterprise Institute. Judge Bork has

publicly described Leonard Garment as a

friend of long standing and Mrs.

Garment, the author of the offending

article, persuaded her husband to lead

the campaign for Judge Bork. At the

very least the record reveals that there

1s an appearance that Judge Bork may be

less than impartial in this matter,

especially in so sensitive a question

as to whether or not Judge Jackson

should have recused himself.

The refusal of counsel for Dow

Jones & Co, Inc. to take a position on

this matter raises additional ethical

considerations. If Mr. LoBue, counsel

for Dow Jones & Co., Inc. and Suzanne

Garment, iS in possession of information

which demonstrates that there is no

ae

close relationship, professional or

personal, between Judge Bork and Mrs.

Garment or between Judge Bork and Mr.

Garment, ordinarily one would suspect

that he would feel constrained to

respond in that fashion to the motion to

disqualify. If he is aware of facts

which should lead to disqualification he

is, the appellant believes, ethically

bound to disclose those facts, or at the

very least, to join in the motion.

If as Regardies asserts, Judge Bork

"benefitted tremendously in the public

eye from Garment's media blitzkrieg”

(Exhibit A) and if Sen. Orrin Hatch was

perceptive in concluding “[i]f I were in

Similar straits as Bob Bork, I'd give my

eye teeth to have a friend like Leonard

Garment" (Exhibit E) then Judge Bork has

reason to feel indebted to Leonard

~=£6-

Garment and Mrs. Garment since, accord-

ing to Mr. Garment, it was his wife,

Suzanne, who involved her husband in the

crusade to save Judge Bork's nomination

and reputation (Exhibits E and B).

Surely it cannot be denied that an

average, responsible citizen could

examine this record and conclude that

there is at least the appearance that

Judge Bork should be disqualified from

considering this case. No party, as a

matter of right, is entitled to have a

friend in court; each party is entitled

to an impartial hearing. It is this

basic approach, after all, that lies at

the heart of our concept of due process.

For the foregoing reasons the ap-

pellant respectfully requests that this

Court appoint a special master empowered

to conduct depositions so that the full

————————

a |, Pe

record may be revealed and the parties

to this lawsuit and the Court, as well

as the public, be assured that there is

no impediment to the impartial adminis-

tration of the law in this matter.

February 4, 1988

Respectfully submitted,

Mark Lane

132 Third Street, S.E.

Washington, D.C. 20002

(202) 547-6700

Counsel for Appellant

=

CERTIFICATE OF SERVICE

I hereby certify that true copies

of the foregoing Appellant's Motion for

Reconsideration of Appellant's Motion

for Disqualification of Honorable

Robert H. Bork and Statement of Points

and Authorities in support thereof were

mailed, first class, postage prepaid to

Robert P. LoBue, Esquire, Patterson,

Belknap, Webb & Tyler, 30 Rockereller

Plaza, New York, New York 10112 on this

5th day of February, 1988.

Mark Lane

RECEIVED

FEB 5, 1988

CLERK OF THE UNITED

STATES COURT OF APPEALS

~~

EXHIBIT A

LEONARD GARMENT

Partner

DICKSTEIN SHAPIRO &

MORIN

These days Garment is Washington's

premier power lawyer. When the mistakes

or misdeeds of the high-and-mighty are

splashed across the front page of the

Washington Post, he's the guy they're

most likely to call to get them out of

trouble. Business has never been better.

There are keener legal minds and

better courtroom thespians than Garment,

but few lawyers understand the workings

of Washington as well as he does. His

access to the highest reaches of power--

from the press and the judiciary to

-44-

Capitol Hill and the White House--may be

second to none. And if he hasn't al-

ready joined the ranks of such lawyer-

legends as Clark Clifford, Robert

Strauss [see entry], and Edward Bennett

Williams [see entry], he's on the

verge. Garment's reputation, the Ameri-

can Lawyer recently said, is “edging

toward the Olympian.”

Garment's genius for media manipula-

tion--he'’s a masteft craftsman of “spin

control," the fine art of making the

press and the public see things your

way--makes him one of Washington's top

legal guns-for-hire. He attracts

clients who want more than verdicts of

innocence; to remain in or return to

their high-level positions, they need to

win back a measure of their former

Stature and respect. And when it comes

45-

t lawyering in the court of public

pinion, Garment is in a class by

himself “If you qualify for becoming

shea 2 +

4

4

Len's client,” says Robert McFarlane,

President Reagan's former national

security adviser, “you have a lot going

for you already.

McFarlane, Charles Wick, Edwin

Meese, Fiat Corporation, Toshiba Cor-

poration--these are some of the powerful

:

people and companies that have turned to

Garment in times of need. In McFar-

lane's case, Garment parceled out exclu-

Sive tidbits of confession and apology

to a ravenous media, which portrayed

McFarlane as a sympathetic figure.

Recently he launched a similar strategy

on behalf of Toshiba, which is in

trouble for its part in the sale of

-~46-

banned submarine technology to the

Soviets.

Last year Robert Bork went down for

the count despite Garment's well-

publicized presence in his corner.

however, benefited tremendously in

the public eye from Garment's media

blitzkrieg. After Garment began to use

the press to skewer the opposition, Bork

seemed to gain some undefinable moral

An hour of Garment'’s time will run

you $250. If that sounds steep, just

consider what a crooked accountant could

do to your portfolio while you'’re in

ee)

—

—

(Tv

.

vs

,

»

REGARDIE'S

January 1988

=

EXHIBIT B

The War Against Robert H. Bork

by

Suzanne Garment

Thus pro-Bork and anti-Bork politi-

Cians worked together at the end to

hustle the Bork debate off the public

stage as quickly as possible. Well they

might. The war against Robert Bork

showed the modern American Left at its

ugliest, and the response by pro-Bork

forces showed the Right at its most

impotent.

To defeat Bork, the Left spent a

huge amount of money--$10 to $15 mil-

lion--on a negative political campaign

»9£ a size wholly unprecedented in the

history of American judicial selection.

i | ae |

~~

They could not have mounted such a

Herculean effort had they not hated Bork

with a special venom. And indeed they

did hate and fear him intensely, because

of the special role he had come to play

as a conservative in this country's

intellectual politics.

President Reagan was saying kiss-of-

death style, that it was up to Bork to

decide whether or not he wanted to with-

draw.

On Friday, October 9, Bork went to

the White House--to withdraw, the press

was certain. But then came one of the

few unplanned moments of the whole af-

fair. Bork asked the President whether

he would get support from the White

House if he stayed in the fight. The

President, promising what he could not

deliver, said yes. On the basis of

ni Gia.

Reagan's answer Bork walked in the White

House press room and said he was stay-

ing. For once, the journalists gathered

in the press room were truly surprised

by something that happened there.

During the period between that day

and the final vote on October 23, a

group consisting largely of attorneys,

acting from a combination of admiration

for Bork and anger at the nature of the

Campaign against him, launched a last-

ditch effort. They had several goals in

mind: to save the Bork nomination if

possible, to save Bork's reputation in

any case, and to expose what had been

done to him and to the federal judici-

ary. Leonard Garment, a Washington

lawyer, was one of the leaders (and I

myself joined him in the effort).

tan ~~ ays? Sr4 . a a te" AY rr T 7 i oe an al »s~ ee oo wt ao ». “=

SUZANNE GARMENT, a resident scholar at

the American Enterprise Institute, is

writing a book about the politics of

scandal in Washington. Her article,

"Can the Media Be Reformed?,” appeared

in our August 1987 issue.

COMMENTARY

January, 1988

ahs

EXHIBIT C

Friendship (and Foes) Present

Recusal Quandry for Bork

By Kenneth Karpay

Leonard Garment's staunch defense of

Judge Robert Bork's failed Supreme Court

nomination is raising an ethical dilemma

now that Bork has returned--for the time

being, at least--to the U.S. Court of

Appeals for the D.C. Circuit.

Bork sits on a panel of judges that

is reviewing an appeal by the far right

Liberty Lobby in a libel case that

indirectly pits the group against

Garment's wife, Suzanne Garment. Ms.

Garment is a former associate editor and

columnist for The Wall Street Journal.

~~

The Liberty Lobby's lawyer--author

and D.C. solo practitioner Mark Lane--

moved for Bork to recuse himself from

the matter. Lane says he objected to

Bork's role in the case because of what

he assumed was Bork's close relationship

with the Garments.

"He was presented in the media as

the spokesman for the judge," says Lane,

who is perhaps best known as a proponent

of the theory that President Kennedy's

assassination was part of a conspiracy.

The friendship between Leonard

Garment, of D.C.'s Dickstein, Shapiro &

Morin, and Bork goes back long before

Garment's recent high-profile advocacy

of Bork's nomination. They served

together in the administration of

Richard Nixon and occasionally play in

the same poker game.

whiten

But last week, Bork issued a

five-page memorandum in which he rejects

Lane's motion for disqualification.

Removing himself from the Liberty Lobby

case, Bork said, is “unwarranted."

Bork also took the unusual step of

addressing possible future recusal

requests arising out of his contentious

Supreme Court confirmation battle. He

said he would be unlikely to remove

himself from cases involving litigants

or attorneys who played a role in the

nomination debate.

Bork and fellow Circuit Judges Harry

Edwards and Stephen Williams heard oral

arguments Dec. 8 in the libel case,

Liberty Lobby v. Dow Jones & Co. (No.

86-7017). The group sued Dow Jones, the

parent company of The Wall Street

Journal, over an October 1985 column by

Foe

Suzanne Garment about an unrelated

Liberty Lobby libel suit against The

National Review.

On the surface, it may appear sur-

prising that Bork would not recuse him-

self from the matter, particularly in

light of the fact that Suzanne Garment

actively joined her husband in his

pro-Bork campaign, writing advertising

copy and editing memorandums presented

to senators.

Moreover Bork is rumored to be on

the verge of leaving the Circuit to join

the American Enterprise Institute for

Public Policy Research (AEI), a con-

servative think tank where Suzanne

Garment now serves as a scholar in

residence.

But Bork argues that he has a firm

basis for rejecting Lane's recusal

motion, although ethics expert are not

so sure.

In his memorandum, Bork maintains

that the ABA Canons of Judicial Ethics

does not require recusal in the case.

Bork relies on a 1970 advisory opinion

by an ABA ethics committee that dis-

tinguishes between an acquaintance

involved in a case before the judge who

is “a very close friend and almost part

of the family” versus one who is “merely

within the wide circle of a judge's

friendships."

Writes Bork: "I have no difficulty

in finding that my friendship with the

Garments falls into the latter category."

Bork also says that Leonard Garment

has no real stake in the lawsuit, and he

notes that Ms. Garment has not been per-

sonally named as a defendant.

-56-

“Given the attenuated nature of Mr.

Garment’s connection with this lawsuit,

and my purely social acquaintance with

both the Garments, I am confident in my

ability to render an impartial judge-

ment,” Bork maintains.

While Bork easily resolves the ques-

tion, legal and judicial ethics experts

are troubled.

“In my view, he’s wrong,” says

Stephen Gillers, professor of Law at the

New York University School of Law.

"Bork should realize, that to the pub-

lic, the close connection between him-

self and Garment is clear--Garment was

the single most important lobbyist on

Bork's behalf."

But other ethics professors say that

the case may be more difficult than both

Bork and Giliers acknowledge.

-57-

“First I'm bothered by the fact that

Judge Bork cites the outmoded Canons of

Ethics, not the Code of Judi-

cial Conduct for U.S. Judges,” says

Robert Aronson, professor of law at the

University of Washington School of Law

in Seattle. Applying the new Code,

which Congress enacted into federal law

in the mid-1970s, Aronson says, “I think

it’s a very close call.”

Aronson, the author of a new law

school casebook on legal ethics, argues

that Bork should have considered two

tests before he ruled on the motion:

First, whether Bork himself believes he

could be impartial in the case, and

second, whether Bork's impartiality

might be questioned by a reasonably

objective person.

=’

Aronson says the facts of the case--

especially the Garments’ relationship

with Bork--are not totally clear. “My

own preference, in really close cases

[like this one], is for judges to recuse

themselves,” concludes Aronson.

Another ethics professor, Charles

Wolfram of Cornell Law School, says the

Garment matter presents “a close call.”

If I were a confidant of Judge

Bork's, I would have suggested [that]

another judge sit on the case," says

Wolfram, “But he does have a duty to sit

that can't be forgotten."

Adds Wolfram: “I'ma little mysti-

fied by the role of Leonard Garment. He

spoke initially as if he was Bork‘s

lawyer and then seemed later to back off

a little.

-59-

Shedding Garment

Just before the full Senate voted to

reject Bork in October, Bork wrote a

letter to the New York Times saying

Garment was neither his adviser nor his

spokesman.

Bork’'s memorandum last week reiter-

ates that point.

“Mr. Garment’s actions in support of

my nomination were not in any way coor-

dinated with or endorsed by me.” Bork

writes. “Mr. Garment played no role in

my preparation for the hearings or in

any of my subsequent activities con-

nected with the confirmation process.”

Bork calls “untrue” the contention

that Mr. Garment “was my spokesperson or

agent, officially or unofficially.”

The Garments agree with Bork's

description of their relationship with

-60-

the judge. “He is not a close friend

under the ABA's definition,” says Ms.

Garment, who worked at the Journal for

10 years before joining the AEI about 10

months ago.

Mr. Garment says that while he and

Bork are in the same poker circle,

Bork's attendance at games is spotty.

"I would say that in the last seven

years, I've seen him at a dinner party

of 12 people or more, less than two or

three times.” Mr. Garment says. “I've

never had lunch with him alone.”

And although the Garments engaged in

a well-publicized and unprecedented

lobbying campaign on Bork’s behalf, Mr.

Garment insists that he did his lobbying

without suggestions or directions from

Bork.

iP

“I @id it all on my own. I didn't

clear things with him,” Garment says.

For his part, Lane, counsel for the

Liberty Lobby, says he will not chal-

lenge Bork's recusal decision. “The

judge says they're not close friends, so

I accept that,” Lane says.

Dow Jones‘ counsel, Robert LoBue of

New York's Patterson, Belknap, Webb &

Tyler, would not comment on the recusal

matter, except to note that his side

took no position on the issue.

Perhaps anticipating other recusal

motions stemming from his confirmation

ordeal, Bork last week hinted that he

would not be inclined to step aside.

“Many groups and individuals took

strong public positions for or against

my confirmation,” Bork acknowledges.

-§2-

"Were I to recuse myself every time

an individual or group who had supported

Or opposed my confirmation was connected

with a lawsuit, however tangentially, I

would, in my opinion, be failing in my

judicial duty and be of greatly dimin-

ished usefulness to this court," Bork

adds.

At least one prominent litigator and

former Bork opponent, Alan Morrison of

Public Citizen Litigation Group, says

Bork's position is understandable.

In August, Morrison's group issued a

detailed and highly publicized report

concluding that Bork typically votes

against consumers, environmental groups,

and workers. and in favor of business

and the government. Earlier this month,

the group was before the entire circuit,

inciuding Bork, in an en banc argument

~

in a novel Freedom of Information Act

case.

Morrison says his organization did

not ask Bork to recuse himself from the

case. "There wasn't a legally suffi-

cient basis for it," contends Morrison,

a position that many legal experts say

is correct.

And Morrison adds he will not try to

remove Bork from other case argued by

his organization.

"Can you imagine what the rule could

be? You'd oppose a nominee in order to

get him off of your cases!" Morrison

asserts. "Sure, I'd oppose all of the

Reagan nominees and get them off of all

of my cases. That would be the defini-

tion of chutzpah.

Meanwhile, the speculation has been

mounting that Bork would soon resign

from the bench. "No comment” was his

office's response to a report by News-

week that Bork would soon join the AEI.

But an unidentified spokeswoman at

the AEI suggests that an announcement

about Bork could come in mid-to-late

December.

A spokeswoman in Bork's office ac-

knowledges that Bork has stiil not hired

clerks for the 1988-89 term, a sign that

he may already have decided to leave the

circuit.

LEGAL TIMES

December 14, 1987

-65-

EXHIBIT D

Memo to: Our Readers

From: WFB

At the latest meeting of the editors, we

decided on two innovative features.

The first, beginning next month,

introduces a fortnightly "Commentator."

We are pleased to announce our list

of Commentators. They include Robert

Bork, Leonard Garment, Suzanne Garment.

National Review

February 19, 1988

~

EXHIBIT E

Epilogue on Bork:

Leonard Garment's Obsession

Washington, Oct. 25--Near midnight

last Thursday, Leonard Garment was in a

telephone booth in the deserted Capi-

tol. He had just learned that Senate

Republican leaders had abandoned efforts

to stave off the defeat of the Supreme

Court nomination of Judge Robert H.

Bork. Mr. Garment was on the phone to a

reporter when a Capitol policeman told

him the building was closed.

For three weeks, he had waged a

lonely passionate fight for a nomination

universally considered doomed. He had

confronted not merely the Senate op-

ponents of Judge Bork, but also many in

wii ?.

the White House, Justice Department and

Senate Republican leadership who wanted

to end the agony and move on to the next

Supreme Court nominee. But Mr. Garment

felt strongly that the candidate had

been victimized by a campaign of politi-

cization and distortion, and should not

capitulate.

"This is the worst thing I've ever

seen in 20 years in Washington, from the

standpoint of misconduct, distortion and

deceitfulness" Mr. Garment said of the

Campaign to defeat Mr. Bork's nomination.

For weeks the 63-year-old Washington

lawyer had been working like a man pos-

sessed, marshaling support for what he

privately called Project Lazarus, after

the Biblical character raised from the

dead. Mr. Garment immersed himself in

ai «.

the Bork debate, writing briefs, cir-

culating petitions, paying for adver-

tisements and appearing on television

shows.

Blitzing the Senate

On the opening day cf Senate debate,

he was all over Capitol Hill. He was

outside the Senate chamber lobbying

senators and their aids, inside press

galleries lobbying the reporters, and |

working the telephones in the Vice

President's Senate office, which he

converted into a command post in behalf

of the nominee.

He jumped into the battle unbidden,

but consulted frequently with Judge

Bork, a longtime friend, who authorized

him to issue at least one statement on

his behalf.

«@Ge

Many Senate Republicans were not

amused. “Some of them just want to get

it over with,” said Senator Orrin Hatch,

Republican of Utah, an unabashed fan of

Mr. Garment. “If I were in similar

straits as Bob Bork, I'd give my eye

teeth to have a friend like Leonard

Garment.”

However, Judge Bork has disassoci-

ated himself somewhat from Mr. Garment's

actions. "Mr. Garment is a friend of

long standing, but he is not my ad-

viser,”" the Judge said in a letter pub-

lished Thursday in The New York Times.

“Nor is he, as reported elsewhere, my

lawyer or spokesman. I value his

friendskip and appreciate his efforts to

aid me, but his activities are not coor-

dinated with me, and he is in no sense

my agent.

~ =

Mr. Garment is no stranger to con-

troversy. The Brooklyn-born son of

immigrant parents and a former law

partner of Richard M. Nixon, he came to

Washington as President Nixon's special

consultant and, later, counsel. A

free-wheeling, clarinet-playing intel-

lectual, he was among the embattied

moderates in the Nixon White House.

Since his return to private prac-

tice, he has made a fortune in legal

fees from corporate clients, and has

represented individuals he considered

victims of persecution. He has ex-

ploited his extensive contacts in the

media as well as his own gift for the

quotable phrase.

A Passion for Causes

Mr. Garment becomes passionately

involved in his causes and clients. And

x. =

not all of his work for individuals has

been for free. The lawyer charged $250

an hour for his successful defense of

Attorney General Edwin Meese 3d, who was

cleared of charges that he violated

Federal ethics laws.

Just last May, Mr. Garment sat

beside Robert C. McFarlane, former

national security adviser, his client in

the Iran-Contra hearings. After Mr.

McFarlane's attempted suicide, Mr.

Garment persuaded his client to grant

interviews to a few journalists, to gain

sympathy and re-establish his credi-

bility.

As Mr. Garment tells it, it was his

wife Suzanne, a political scientist and

a former columnist for The Wall Street

Journal, who involved him in the Bork

dispute. As a scholar who had written

=F2n

on antitrust laws, one of Judge Bork's

areas of expertise, she had come to

respect the judge’s intellect and cour-

age, Mr. Garment recalled. She said

that she became incensed when she saw

him subject to what she viewed as

vilification during the confirmation

process.

Family Affair

“She was madder than hell,” Mr.

Garment recalled. “She said, “they're

destroying intellectual freedom, freedom

to think and to write. She got upset,

so I got upset, and the more I got into

it, the madder I got.”

The result was a husband and wife

operation, with the Garments working

together on research, advertisements,

petitions, white papers, and news

releases.

oFia

Mr. Garment had known Judge Bork

casually as a member of a poker group, a

poor player who kept a written list of

the relative superiority of winning

hands--straights, flushes, full houses.

Other players included Chief Justice

William H. Rehnquist, and Antonin

Scalia, the newly appointed Associate

Justice.

“Three weeks ago, I started to call

around to find out who was doing what”

in behalf of Judge Bork, Mr. Garment

said. To his dismay, he said, he

discovered that the White House, the

Justice Department and some Senate

Republicans had given up the fight.

Two weeks ago, amid rumors that

Judge Bork would ask that his nomination

be withdrawn, Mr. Garment obtained the

nominee*s permission to deny the rumors

-~74-

on his behalf. “I said to Bob, ‘It's

terribly important to stanch the hemorr-

haging,'” Mr. Garment recalled.

The same day, he and his wife

drafted a full-page advertisement that

ran in The Washington Post under the

headline, “This Time They've Gone Too

Far.“ The lawyer paid $35,000 for the

ad.

‘You Have an Obligation’

The next week, Mr. Garment appeared

on the “Today Show,” “Nightline,” and

various local news shows attacking Judge

Bork's attackers, saying that they had

distorted the nominee's views and

record. In midweek, Mr. Garment and his

son Paul visited the Borks on the eve of

the judge's scheduled meeting with )

President Reagan. The city was awash

~~ =

with rumors that Judge Bork would ask

that his name be withdrawn.

“Bob said that he was tired, he was

weary, he just wanted to get some

sleep,” Mr. Garment recalled.

“I said, ‘You have an obligation.

This transcends Robert Bork. You can't

walk away from it. They've corrupted

the process.‘”

“By giving up before it goes to the

Senate, you're conceding the basic

accuracy of their case," Mr. Garment

added.

Judge Bork took the matter under

advisement, and announced his decision

at a news conference two days later. “I

called him and said, ‘God bless you,’

Mr. Garment recalled. “I said, ‘I'm

going to help you.’ He said, “You do

|

x.

whatever you want, but I'm not doing any

Campaigning."

Eight days ago, at the judicial

conference in Hershey, Pa., the Garments

wrote and circulated a petition denounc-

ing the politicization of the Bork

debate. It was signed by 23 Federal

judges from New York. During the week

he worked with 15 volunteer lawyers to

produce 10 briefs attacking sections of

the Judiciary Committee report.

Day of Rejection

On Thursday, Mr. Garment met per-

sonal rejection on Capitol Hill. He was

barred from the Senate press gallery, at

the request of several reporters who

complained that he was a nuisance. Then

the Senate Republican leadership barred

him from the use of the Vice President's

room, just off the Senate floor.

Pee

yy

On Thursday evening, Mr. Garment was

last to learn that Judge Bork had

finally decided to abandon the fight.

Mr. Garment said that Judge Bork had

told him that he could not take another

week of it, Mr. Garment said. It is,

perhaps, a sign of how obsessed Mr.

Garment had become with the fight that

at that point he still thought that if

the vote were delayed, he could have

provided data that would have altered

the outcome. But he said he understood

Judge Bork's position.

When the senators stood up to be

counted on Friday, 58 of them voted

against the judge. The battle was over.

NEW YORK TIMES

October 26, 1987

EXHIBIT F

Inquiries Begun on Warning

to Pro-Bork Witness

By Martin Tolchin

Washington, Oct. 19--Leonard

Garment, a Washington lawyer who has

been advising Judge Bork, said: “The

Judiciary Committee cannot investigate

itself. It's the ultimate conflict of

interest.”

NEW YORK TIMES

October 20, 1987

= |

EXHIBIT G

Friend, Not Advisor

To the Editor:

An Oct. 20 news story [on inquiries

into possible harassment of Senate

Judiciary Committee witnesses] identi-

fies Leonard Garment as "a Washington

lawyer who has been advising me. Mr.

Garment is a friend of long standing,

but he is not my adviser. Nor is he, as

reported elsewhere, my lawyer or spokes-

man. I value his friendship and appre-

Ciate his effort to aid me, but his

activities are not coordinated with me,

and he is in no sense my agent.

ROBERT BORK

Washington, Oct. 20, 1987

NEW YORK TIMES

October 22, 1987

-~80-

APPENDIX F

Notice: This opinion is subject to

formal revision before publication in

the Federal Register or U.S.App.D.C.

Reports. Users are requested to notify

the Clerk of any formal errors in order

that corrections may be made before the

bound volumes go to press.

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

Ve

Dow Jones & Company, Inc., et al.

Appeal from the United States

District Court for the

District of Columbia

(Civil Action No. 84-03455)

Argued December 8, 1987

Decided February 5, 1988

ie

Mark Lane for appellant.

Robert P. LoBue for appellees.

Before: EDWARDS, BORK AND WILLIAMS,

Circuit Judges.

Opinion for the Court filed by Circuit

Judge Bork.

Bills of costs must be filed within 14

days after entry of judgment. The court

looks with disfavor upon motions to file

bills of costs out of time.

BORK, Circuit Judge: This is a

libel action in which Liberty Lobby,

Inc., a citizens' group, seeks fifty

million dollars in compensatory and

punitive damages from the publisher of

The Wall Street Journal. After more

than a year of discovery, the district

court granted defendants' motion for

Summary judgment on the first count, and

judgment on the pleadings as to the

remaining four counts of Liberty Lobby's

complaint. We affirm the district

court's disposition of the case in all

afit.

respects, although we sometimes follow a

different route to the same result.

ba

On September 28, 1984, The Wall

Street Journal published a column en-

titled "Controversial Publisher--Racial

Purist Uses Reagan Plug.” Appendix to

Complaint, E.N. 1 (filed November 15,

1984) [hereinafter “Complaint"};1 Wall

St. J., Sept. 28, 1984, at 56, col. l.

The article, written by defendant Rich

Jaroslovsky, a ten-year veteran of The

Journal's news staff, bore the logo

"Politics 84," and was published as part

lNeither party to this appeal has

prepared an appendix, an omission that

has caused unnecessary work for the

court. We will cite record documents by

their Entry Number ("E.N.") on the dis-

trict court docket sheet and their date

of filing with that court. Where a

record document is also available in a

published source, we will cite that

source as well.

oft.

of The Journal’s coverage of the 1984

presidential campaign. The article is

reprinted in its entirety as Appendix A

to this opinion. The article states

that one Roger Pearson, an advocate of

racial betterment through genetic

selection, had received a letter of

commendation from President Reagan and

that he had exploited the letter to

promote his controversial publications.

According to the story, the letter was

composed by a Pearson associate on the

White House staff, and President Reagan

had never met Mr. Pearson. Jaroslovsky

concluded that the incident demonstrated

“how a highly ideological presidency--

conservative or iiberal--can be used by

well-connected outside activities to

gain respectability."

Nd

-~84-

In the course of discussing Pear-

son's past activities and associations,

the article asserted:

Other Pearson writings appeared

in Western Destiny, a magazine

published by the far right, anti-

Semitic Liberty Lobby. Mr. Pearson

edited Western Destiny briefly in

the mid-1960s and wrote several

books on race and eugenics that were

issued by Liberty Lobby's publishing

arm. These pamphlets are still sold

by the National Socialist White

People's Party, the Arlington, Va.

based American Nazi group; Mr.

Pearson says he doesn't have any

connection with that group.

App.A, infra, p. 35.

On November 15, 1984, Liberty Lobby

filed a complaint for libel in the

United Sates District Court for the

District of Columbia, basing jurisdic-

tion on diversity of citizenship under

28 U.S.C. § 1332 (1982). Complaint ¥f

1. Named as defendants were Dow Jones &

Co., Inc., the company that publishes

-~85-

The Journal, and Rich Jaroslovsky, the

author of the Pearson article. Id.

2-3.

Liberty Lobby claims that the quoted

passage is false and defamatory in two

respects. First, although Liberty Lobby

admits to being an anti-Zionist organi-

zation, it claims that The Journal's

Characterization of it as “anti-Semitic”

is false and injurious to its reputa-

tion. Complaint § 10. Second, Liberty

Lobby contends that it never published

the magazine, Western Destiny; nor did

it issue any books by Mr. Pearson. Id.

It further contends that no books or

pamphlets issued by Liberty Lobby are or

were sold by the National Socialist

White People's Party. Id.

In November, 1985, after eleven

months of voluminous discovery had been

=S6-

completed, Liberty Lobby sought and was

granted leave to amend its complaint to

add four additional causes of action for

libel against Dow Jones. See Motion for

Leave to Amend and Supplement the Com-

plaint, E.N. 46 (filed Nov. 1, 1985).

These claims were based upon a column

entitled “There's Nothing Like a Libel

Trial for an Education” which appeared

in the editorial section of The Wall

Street Journal on October 1l, 1985. Id.

exh. B; Wall St. J., Oct. 11, 1985, at

28, col. 3. The column was written by

Ms. Suzanne Garment, a member of The

Journal's editorial staff, and is

reprinted in its entirety as Appendix B

to this opinion.

Using as a vehicle the trial of

another libel action, one between

Liberty Lobby and The National Review, a

-87-

magazine of opinion, the column gave the

author's views “about libel suits in

general and their place in democratic

politics.” In introducing its theme,

the Garment column noted that Liberty

Lobby‘s claim based on the Jaroslovsky

article was at that time pending before

the district court, stating:

Over the years, Liberty Lobby

and Mr. Carto have sued a number of

publishers that called them racist

and anti-Semitic. Still pending is

a Liberty Lobby suit against The

Wall Street Journal, which last year

called Liberty Lobby “anti-Semitic”

and reported that it had published

various tracts by a promoter of

racial betterment through genetic

selection.

App. B, infra, at 37. This republica-

tion of allegedly defamatory material

from the Jaroslovsky story forms the

basis for Liberty Lobby'’s second cause

of action.

fia

The body of the Garment column dis-

cussed Liberty Lobby's trial strategy in

defending a counterclaim for libel

brought against it by The National

Review. The column described in detail

the courtroom scene prior to the de-

livery of opening arguments to the

jury. It noted the presence of a

“good-looking black female lawyer” at

Liberty Lobby’s counsel table with

Mr. Lane, the lead counsel, and went on

to state, “(t]he moment the jury filed

in--all black, as is not uncommon in the

District--you began to suspect that Mr.

Lane might have something in mind.” The

column then summarized Liberty Lobby's

opening argument to the jury, at one

point quoting Mr. Lane as saying:

If you read the words of Adolf

Hitler regarding superior races and

advanced races and inferior races,

you will have difficulty separating

-~89-

the words of Mr. Buckley in his

editorials in the National Review

from the words of Adolf Hitler.

App. B, infra, at 38. The column summed

up its discussion of Liberty Lobby's

trial strategy by stating:

So we see the Liberty Lobby standing

up in court, and calling Mr. Buckley

racist, most likely calculating that

blacks jurors will be too hypnotized

by this possibility to consider

other facts important. This is not

just an ordinary lawyer's trick.

This is breathtaking in its daring.

Most of us would be embarrassed to

appeal to a racial or religious

minority audience so crudely. We

know the Fair Play Patrol would at

once swoop down and cart us away.

But the Carto team is of sterner

stuff, able to put its head down and

go for broke.

Id. at 39.

The column questioned the utility of

highly inflammatory libel suits in a

democratic society, and compared “Louis

Farrakhan wowing them at Madison Square

Garden” to “Mark Lane in front of the

jury.” The statements in the Garment

=%O—

column concerning Liberty Lobby'’s con-

duct during The National Review trial

form the basis for its third, fourth and

fifth causes of action for libel against

Dow Jones.

On December 16, 1985, appellees

filed a motion for summary judgment on

the first cause of action based on the

Jaroslovsky article, and for judgment on

the pleadings as to the four claims

based on the Garment column. Memorandum

of Points and Authorities in Support of

Defendants' Motion for Summary Judgment

and Judgment on the Pleadings, E.N. 57

(filed Dec. 1985).

On July 10, 1986, the district court

issued its memorandum opinion and order,

granting appellees’ motions and dismiss-

ing Liberty Lobby's complaint with

prejudice. See Liberty Lobby, Inc. v.

ll Din

Dow Jones & Co., 638 F.Supp. 1149

(D.D.C. 1986). The district court found

that the truth or falsity of The

Journal's statements concerning Liberty

Lobby's publishing activities was "“im-

material," for, even if false, they were

not “defamatory in the least of Liberty

Lobby but for the ... characterization

of the entire conglomerate as ‘anti-

Semitic'"” Id. at 1152. On the latter

score, the district court “suspect[ed]

that the term ‘anti-Semitic,’ as

Jaroslovsky has used it, is probably

constitutionally protected opinion.”

Id. (citing Ollman v. Evans, 750 F.2d

970, 974-84 (D.C. Cir. 1984) (en banc),

cert. denied, 471 U.S. 1127 (1985) ).

However, the district court went on to

hold that, to the extent the charge of

uO Be

anti-Semitism had any objectively veri-

fiable factual content, the statement

was substantially true. Id. Relying

upon the contents of a multi-volume file

Liberty Lobby kept on publication about

Jews” and upon the views expounded in

Liberty Lobby's official organ, The

Spotlight, the district court found that

appellees’ “evidence of Liberty Lobby's

institutional anti-Semitism in its most

malign sense” was “compelling.” Id.

With only the bald denial of the affi-

davit of Willis Carto, Liberty Lobby's

founder and chief executive officer,

weighing against appellees' evidence,

20n appeal, Liberty Lobby vigor-

ously attacks the characterization of

its research file on the Jewish religion

as anti-Semitic. See Brief of Liberty

Lobby at 18-20. Given our disposition

of Liberty Lobby's claims based upon the

allegation of anti-Semitism, see infra

pp. 19-21, we need not address the issue.

a

the district court concluded that no

reasonable jury could find by a pre-

ponderance of the evidence that the

ascription of anti-Semitism to Liberty

Lobby was false. Id. at 1153.

The district court also found that

dismissal of Liberty Lobby's claims

based on the Jaroslovsky article was

mandated by the complete lack of evi-

dence that any of the allegedly defama-

tory statements were published with

actual malice. The court noted that

Jaroslovsky had spent three months on

intermittent research, had reviewed a

large number of Liberty Lobby documents,

and had consulted various articles about

Liberty Lobby. Jaroslovsky had shown

these materials to his editor, who con-

curred in his judgment that Liberty

Lobby was anti-Semitic. The Journal's

in

Washington bureau chief, who was

familiar with Liberty Lobby's radio

program and its official publication,

The Spotlight, agreed. The district

court concluded that no reasonable jury

could find that The Journal had acted

with knowledge of falsity or reckless

disregard of the truth, “there being no

evidence of [actual malice] at all, much

less proof that is clear and

convincing.” Liberty Lobby, 638 F.

Supp. at 1153.

Turning to the Garment column's

reference to the Jaroslovsky article,

the district court found that this claim

was “extinguished by the demise of

Count I." Liberty Lobby, 638 F. Supp.

at 1153. In the alternative, the court

held that the “republication” was

=95-

shielded by the common law privilege

accorded to fair and accurate accounts

of official reports and records. Id.

The remainder of the Garment column

was, in the district court's view,

“simply descriptions of Garment's per-

sonal reactions to Liberty Lobby's

attorneys opening statement, nothing

more." Liberty Lobby, 638 F. Supp. at

1154. Even assuming Liberty Lobby's

charges of bias or vindictiveness were

true, Garment's comments on The National

Review trial were, in the lower court's

view, expressions of opinion entitled to

absolute first amendment protection. Id.

Under Fed. R. Civ. P. 56(c), summary

judgment

shall be rendered forthwith if the

pleadings, depositions, answers to

interrogatories, and admissions on

file, together with the affidavits,

if any, show that there is no

genuine issue as to any material

Rhu

fact and that the moving party is

entitled to judgment as a matter of

law.

The motion requires the court to

look behind the bare allegations of the

pleadings to determine if they have suf-

ficient factual support to warrant their

consideration at trial. The Supreme

Court recently reaffirmed these prin-

ciples:

the plain language of Rule 56(c)

mandates the entry of summary judg-

ment, after adequate time for dis-

covery and upon motion, against a

party who fails to make a showing

sufficient to establish the

existence of an element essential to

that party's case and on which that

party will bear the burden of proof

at trial.

Celotex Corp. v. Catrett, 106 S. Ct.

2548, 2553 (1986). See First Nat'l Bank

of Ariz. v. Cities Serves. Co., 391 U.S.

253, 289 (1968); 10A C. Wright, A.

Miller & M. Kane, Federal Practice and

Procedure § 2727 (1983). The party

aGFa

Opposing summary judgment “may not rest

upon the mere allegations or denials of

his pleading, but his response ... must

set forth specific facts showing that

there is a genuine issue for trial."

Fed. R. Civ. P. 56(c).

Where a public figure, which Liberty

Lobby concedes that it is, or a public

official pursues a libel action, first

amendment requirements supplant both the

common law of defamation and the normal

standards of appellate review in several

respects. First, such a plaintiff must

Gemonstrate by at least a fair pre-

ponderance of the evidence that the al-

legedly defamatory statement is false.

See Philadelphia Newspaper In Vv.

Heeps, 475 U.S. 767, 775-78 (1986); Old

Dominion Branch No. 496, Nat'l Ass'n of

r rrier AFL-CIO v. A in, 418

t-

=9Q-

U.S. 264, 284 (1974) ("Before the test

of recklessness or knowing falsity can

be met, there must be a false statement

of fact."); Garrison v. Louisiana, 379

U.S. 64, 74 (1964) ("“[A] public official

[is] allowed the civil [defamation]

remedy only if he establishes that the

utterance was false.").

This requirement is fully applicable

at the summary judgment stage. Thus,

where a district court concludes upon

motion or its own initiative (after

proper notice) that no reasonable jury

could find by a fair preponderance of

the evidence that the statement com-

plained of is false, summary judgment

for the defendant should be granted.

Where the question of truth or falsity

is a close one, a court should err on

~99-

the side of nonactionability. See

Hepps, 475 U.S. at 776.

Second, a public figure or official

must demonstrate by clear and convincing

evidence that the defendant published

the defamatory falsehood with “actual

malice," that is, with “knowledge that

it was false or with reckless disregard

of whether it was false or not.” New

York Times v. Sullivan, 376 U.S. 254,

280 (1964). To support a libel judg-

ment, there must be evidence which

establishes in convincing fashion “that

the defendant in fact entertained seri-

ous doubts as to the truth of his pub-

lication." St. Amant v. Thompson, 390

U.S. 727, 731 (1968). Through the

defendant's own actions or statements,

the dubious nature of his sources, the

inherent improbability of the story or

-100-

other circumstantial evidence, the

plaintiff must demonstrate that the

defendant himself entertained a “high

degree of awareness of ... probable

falsity.” Garrison, 379 U.S. at 74.

This requirement, too, is applicable

when considering a motion for summary

judgment. The question for the court is

“whether the evidence presented is such

that a reasonable jury might find that

actual malice had been shown with con-

vincing clarity.” Anderson v. Liberty

Lobby, 106, S. Ct. 2505, 2515 (1986).

Finally, statements of opinion or

belief are nonactionable as a matter of

law. See Bose Corp. v. Consumers Union

of United States, 466 U.S. 485, 504

(1984) (“Under our Constitution ‘there

is no such thing as a false idea. How-

ever pernicious an opinion may seem, we

-101-

depend for its correction not on the

conscience of judges and juries but on

the competition of other ideas.'")

(quoting Gertz v. Robert Welch, Inc.,

418 U.S. 332, 339-40 (1974)). The

absolute protection accorded statements

of opinion stems, in part, from plain-

tiff's burden of proving falsity, a

component of which is proving that a

statement is amendable to disproof. But

as the language of Gertz suggests, the

rule has independent roots in the

limitations which the first amendment

places on the intrusion of any branch of

government, including Article III

courts, into the marketplace of ideas.

First amendment concerns also affect

a court‘’s posture in reviewing the

evidence presented con summary judgment.

Normally, the evidence presented upon a

-102-

motion for summary judgment is construed

in favor of the party opposing the

motion. See United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962); 1OA C.

Wright, A. Miller & M. Kane, Federal

Practice and Procedure § 2727 (1983).

As to the nonconstitutional issues in a

libel action, this standard still ob-

tains. However, where the constitu-

tional prerequisites of falsity and

actual malice are at issue “an appellate

court has an obligation to ‘make an

independent examination of the whole

record’ in order to make sure that ‘the

judgment does not constitute a forbidden

intrusion on the filed of free expres-

sion.'”" Bose, 466 U.S. at 499 (quoting

New York Times, 376 U.S. at 284-86).

While Bose and prior cases involved

appellate review of trial verdicts in

hey

-103-

libel actions, logic and considerations

of judicial administration dictate that

the same level of review apply to the

granting of summary judgment. See

Herbert v. Lando, 781 F.2d 298, 308 (2d

Cir.) (applying Bose independent review

to summary judgment for media de-

fendant), cert. denied, 106 S. Ct. 2916

(1986); accord Bartimo v. Horsemen's

Benevolent & Protective Ass'n, 771 F.2d

894, 894-98 (5th Cir. 1985), cert,

denied, 106 S. Ct. 1635 (1986); Hardin

v. Santa Fe Reporter, Inc., 745 F.2d

1323, 1326 (10th Cir. 1984).

We turn to an analysis of the state-

ments at issue and the district court's

rulings.

A.

Unlike the district court, we think

Jaroslovsky's statements concerning

-104-

Liberty Lobby's publishing activities

have defamatory content independent of

the charge of anti-Semitism. Under

District of Columbia law,> a statement

is defamatory, “if it tends to injure

plaintiff in his trade, profession or

community standing, or lower him in the

estimation of the community." Howard

niv. vy. B , 484 A.2d 958, 988 (D.C.

1984) (citation omitted). “It is only

when the court can say that the publica-

tion is not reasonably capable of any

3Al1l parties to this diversity

Suit agree that the common law of the

District of Columbia governs this ac-

tion. Liberty Lobby, a Washington-based

advocacy group, alleges substantial cir-

culation of the allegedly defamatory

material in the District. See Complaint

2. See also Dowd v. Calabrese, 589 F.

Supp. 1206, 1210 (D.D.C 1984) (Under

District of Columbia conflict of law

principles, law to be applied in defama-

tion action is not that of forum where

offending publication was prepared, but

place where the plaintiff suffered the

most significant harm to reputation.).

-105-

defamatory meaning and cannot reasonably

be understood in any defamatory sense

that it can rule as a matter of law,

that it was not libelous.” Levy v.

American Mut. Ins. Co., 196 A.2d 475,

476 (D.C. 1964). See Afro-American

Publishing Co. v. Jaffe, 366 F.2d 649,

654 n.10 (D.C. Cir. 1966) (citations

omitted).

Here, The Journal article by

Jaroslovsky indicated that Liberty Lobby

had published Pearson's theories of

racial supremacy and genetic selection,

and that these publications were sold by

an American Nazi organization. A jury

could find that such an allegation,

standing alone, tended “to lower

[Liberty Lobby] in the estimation of the

community or to deter third persons from

dealing or associating with [Liberty

Lobby] in the estimation of the com-

munity or to deter third persons from

dealing or associating with [Liberty

Lobby]." Restatement (Second) of Torts

§ 559 (1977); see also id. illustra-

tion 2 (An allegation of membership in

the Ku Klux Klan is defamatory.). We

have little doubt that a District of

Columbia court would find that the alle-

gation of this type of publishing ac-

tivity has sufficient defamatory content

to go to a jury. See Afro-American Pub-

lishing, 366 F.2d at 655 (charge that

plaintiff store owner cancelled his sub-

scription to black magazine for racist

motives and made derogatory statements

about black customers could support

libel verdict).

We find, however, that these state-

ments about Liberty Lobby's publishing

>107-

activities are nonactionable as a matter

of federal constitutional law for two

reasons. First, we are convinced that

no reasonable jury could find by a fair

preponderance of the evidence that these

statements are false. Second, even if a

jury could find that the Jaroslovsky

article falsely exaggerated the connec-

tion between Liberty Lobby and Pearson's

writings, there is absolutely no evi-

dence that the statements were made with

“a high degree of awareness of

probable falsity." Garrison, 379 U.S.

at 74.

Ee

It is undisputed that both Western

Destiny and the Fearson books mentioned

in the Jaroslovsky article were pub-

lished by an unincorporated entity

located in Torrance, California, doing

-108-

business as The Noontide Press. See

Affidavit of Robert P. LoBue, E.N. 57,

4 85 (filed Dec. 16, 1985) [hereinafter

4

"LoBue Aff."]. The record evidence

that both Mr. Carto and Liberty Lobby

exercise substantial financial and

editorial control over the publishing

activities of Noontide is, in our view,

compelling.

In their first set of interroga-

tories, appellees asked Liberty Lobby to:

state whether plaintiff or any of

its officers or directors or their

spouses controls or ever has con-

trolled, in whole or in part,

directly or indirectly, formally or

informally, any aspect of the

business or publishing activities or

4 Mr. Robert LoBue is counsel of

record for Dow Jones in this action.

His affidavit, filed in support of

appellees' motion for summary judgment,

was used as a vehicle to summarize and

organize the documentary material upon

which appellees relied below.

-109-

operations or the editorial policy

or decision-making of The Noontide

Press.

Defendants' First Set of Interrogatories

to Plaintiff, E.N. 6, at 13 (filed

Dec. 26, 1984). In an answer sworn to

by Mr. Carto, the appellant responded in

the affirmative and went on to indicate

that Mr. Carto had acted in an “advisory

Capacity" to Noontide for the last

twenty years. Plaintiff's Answer to

Defendants' First Set of Interroga-

tories, E.N. 9, at 17 (filed Feb 28,

1985). In deposition testimony, Mr.

Carto admitted that he was the central

figure in the establishment of Noontide

Press and had chosen its name. Deposi-

tion of Willis A. Carto, E.N. 41, at

400-01 (filed Oct. 4, 1985) [hereinafter

"Carto Dep."]. Noontide's nominal

director, Mr. Thomas Marcellus, testi-

-110-

fied that Mr. Carto exercises consider-

able control over the selection of the

books that Noontide will publish. See

LoBue Aff. ¥Y 62 (quoting Deposition of

Thomas Marcellus at 116). In support of

their dispositive motion, appellees also

introduced the sworn testimony of Mr.

Robert M. Bartell, a member of Liberty

Lobby's Board of Policy until 1984. See

LoBue Aff. § 60. In this testimony,

given in an unrelated action involving

Liberty Lobby, Mr. Bartell described

Noontide's publishing activities as

follows:

a pamphlet or a book of some kind

was run through Liberty Lobby's

executive staff for reading, for

approval, for changes, for what-

ever.... And the finished copy is

then given back to Mr. Carto and it

goes back to California and is pub-

lished by Noontide Press, and this

has been going on for years and

years and years, then [Mr. Carto]

-lll-

doesn't have to say that I am

Noontide Press although we all know

he is.

Id. (quoting Deposition of Robert M.

Bartell at 46-47, filed in Mermelstein

v. Institute for Historical Review, No.

C 356 542 (Cal. Super. Ct.)).°

2Both Noontide Press and the

Institute for Historical Review ("IHR")

are trade names for an incorporated

entity known as The Legion for the Sur-

vival of Freedom, Inc. ("The Legion”).

In Mermelstein, the plaintiffs brought

Suit against Liberty Lobby, The Legion,

Noontide, the IHR and Mr. Carto, among

others. The suit was based upon the

IHR's offer of a $50,000 reward to any-

one who could prove that the Holocaust

had actually occurred. The offer

received extensive publicity in Liberty

Lobby's publications. See LoBue Aff. ¥¥f

218, 220. The Mermelstein plaintiffs

evidently submitted such proof and

claimed the reward. Upon the IHR‘s

refusal to honor its offer, the plain-

tiffs instituted an action for breach of

contract and intentional infliction of

emotional distress. See LoBue Aff.,

exh. 14 (transcript of proceedings in

Mermelstein v. Institute for Historical

Review, No. C 356 542 (July 22, 1985).

The case was settled with the de-

fendants, including Liberty Lobby,

-112-

Until a fire in 1984, Liberty Lobby

and The Noontide Press shared office

space in Torrance, California. See

Carto Dep. at 474. During the 1960's,

when the Pearson books were published,

Mr. Carto was a board member of The

Legion, the incorporated entity behind

Noontide Press. See Carto Dep. at

300-03. Mr. Bruce Hollman, a Liberty

Lobby director, also sat on The Legion's

board at the time of the publications at

issue. See id. at 301. At the same

time, Mr. Robert Kuttner, listed as a

contributing editor of Western Destiny,

was also a member of Liberty Lobby's

Board of Directors. Id. at 120. During

(footnote continued from preceding page)

agreeing to publish a formal apology and

to pay the plaintiffs $150,000 in

Gamages. See LoBue Aff., exh. 14, at

4-13.

-113-

this time, Roger Pearson was the editor

of Western Destiny, and Mr. Carto, under

the pseudonym “E.L. Anderson," as its

sole associate editor. See Plaintiff's

Answer to Defendants’ First Set of

Interrogatories, E.N. 9, at 15 (filed

Feb 28, 1985) (admitting that "E.L.

Anderson” is a pseudonym for Mr. Carto).

The Legion's application to do busi-

ness as Noontide Press is signed by Mrs.

Elizabeth Carto, Mr. Carto's wife, and a

Supervisor at Liberty Lobby. See LoBue

Aff. %46 (citing Deposition of Thomas

Marcellus, exh. 15). The application

also lists Bruce Hollman as one of

Noontide's principals, himself a Liberty

Lobby director. Id. Mr. Carto has

personally chosen the only two directors

of Noontide, and they received their

-114-

positions by contacting Liberty Lobby

through The Spotlight. LoBue Aff. WW

52-54. The record also indicates that

The Noontide Press advertises only in

Liberty Lobby's official organ, The

Spotlight. LoBue Aff. YF 76 (citing

Marcellus Deposition at 69-70). In

return, Liberty Lobby purchases almost

half of the books for its “Liberty

Library” from Noontide. See LoBue Aff.,

exh. 17. Appellees have also adduced

evidence that Liberty Lobby provides

substantial financial support to The

Legion and Noontide. See LoBue Aff.

G 77.

Upon this record, we have little

difficulty in concluding that both The

Journal's characterization of Noontide

as Liberty Lobby's “publishing arm" and

-115-

its statement that Liberty Lobby “pub-

lished" Western Destiny are substanti-

ally true.° Given the substantial

ties between Mr. Carto, Liberty Lobby

and Noontide, we are convinced that

Liberty Lobby could not demonstrate by a

fair preponderance of the evidence that

these statements are false.

In Tavoulareas v. Piro, 817 F.2d 762

(D.C. Cir.) (en banc), cert. denied, 108

S. Ct. 200 (1987), The Washington Post

ran a story charging that the President

of Mobile Oil Corp., William Tavoulare-

as, had “set up” his son Peter in a

60ther news organizations have

apparently reached this conclusion as

well. In reporting on the activities of

The Legion, j

referred to “the publishing arm of the

Carto operations known as Noontide

Press." Carto Dep., erh. 88; The Los

Angeles Times, May 3, 1981, at 12,

COk« Sx

\ nat

-116-

shipping company which did substantial

business with Mobil. Both father and

son sued in libel, claiming that the

“set-up” allegation was false and

defamatory. In fact, Atlas Shipping,

the company Peter Travoulareas was asso-

ciated with, dealt only with Samarco, a

Saudi/Mobil joint venture. 817 F.2d at

767-68. The Travoulareases claimed that

the article created the false and

defamatory impression that that there

was a “direct link” between Mobil and

Atlas. Id. at 787.

Reviewing the record, this court

found that Mobil'‘s and the elder

Tavoulareas‘ links with Atlas were sub-

stantial and palpable, although in no

way formalized. Mobil had recruited the

first head of Atlas Shipping, had pro-

vided it with ships and office space,

-117-

and had even supplied it with an interim

manager when its most senior executive

departed. Tavoulareas, 817 F2d at 787.

Under these circumstances, the court

held that “even if The Post article

failed to make clear the formal, cor-

porate relationship between Mobil,

Samarco, and Atlas ... the defendants

cannot in reason and in law be held

liable for accurately reporting the

direct link that undisputably did exist

between Mobil and Atlas.” Id.

We think the logic of Tavoulareas is

controlling here. Newspaper reporters

should not be required to convert the

results of investigative journalism into

a Standard & Poor'’s report on the

formalities of corporate structure. The

sting of the charge that Liberty Lobby

-118-

has approved of and assisted in the dis-

semination of Mr. Pearson's controver-

sial views and the Western Destiny maga-

zine, is substantially true. See

Restatement (Second) of Torts § 581A,

comment f (1977) ("It is not necessary

to establish the literal truth of the

precise statement made. Slight inac-

Curacies of expression are immaterial

provided that the defamatory charge is

true in substance."). Moreover, there

is evidence in this record that Mr.

Carto specifically designed the Liberty

Lobby/Legion/Noontide/IHR network so as

to divorce Liberty Lobby's name from

those of its less reputable affiliates.

See infra p. 18. It is Mr. Carto's

right to pour his political activities

into whatever corporate shell he

desires. What he may not do is silence

-119-

those who see through the form to the

reality.

ae

Even if a reasonable jury could find

that Jaroslovsky and his editors falsely

exaggerated Liberty Lobby's role in the

dissemination of the Pearson books and

Western Destiny, no jury could find that

they did so with knowledge of falsity or

reckless disregard for truth. After

over a year of discovery, Liberty Lobby

has not been able to adduce a scintilla

of evidence indicating that anyone

involved in the preparation of the

Pearson article entertained any doubt

about its veracity.

To the contrary, appellees' evidence

reveals that Jaroslovsky thoroughly

documented his story and relied upon

wholly reputable sources in drawing the

-120-

connection between Liberty Lobby and

Noontide's publishing activities. Among

Jaroslovsky's sources was a June 1980

issue of the Facts newsletter published

by the Anti-Defamation League of B'nai

B'rith ("ADL"). See Deposition of

Richard Jaroslovsky, E.N. 32 & 33,

exh. 45 (filed Aug. 6, 1985) [herein-

after “Jaroslovsky Dep."]' The Anti-

defamation League of B'nai B'rith, “The

Spotlight: Liberty Lobby's Voice of

Hate," Facts, vol. 26, No. 1 (June,

1980). Under the subtitle “Front for

Anti-Semitism,” the article states:

For almost a quarter century,

Liberty Lobby has served as a front

for Carto’s seamier operations and

activities. Among these have

been ... Western Destiny, a magazine

that published racist, Nazi-tinged

articles extolling the Nordic mys-

tique; and Noontide Press, publisher

of anti-Semitic, racist, and pro-

Nazi books....

-121-

Id. at 1. Later, the article refers to

Noontide as “a Carto-influenced from"

Id. at 4. Other ADL publications which

Jaroslovsky reviewed in preparing the

Pearson story referred to the “Carto

Network" and described Noontide and

Western Destiny as “Carto-run" and

“official partners” in the Liberty Lobby

conglomerate. See Jaroslovsky Dep.,

exh. 57; The Anti-Defamation League of

B'nai B'rith, Extremism on the Right--A

Handbook 25 (1983).

Jaroslovsky also relied upon an

article by C.H. Simonds, entitled "The

Strange Story of Willis Carto," which

appeared in the september 10, 1971 issue

of The National Review. Jaroslovsky

Dep., exh. 60; Simonds, “The Strange

Story of Willis Carto," The National

Review, Sept. 10, 1971, at 983 The

-122-

article flatly states that "(t]he sole

owner and proprietor of Noontide is

Willis Carto." Id. at 981. The article

chronicles Mr. Carto's attempts to dis-

tance himself and Liberty Lobby from The

Legion/Noontide network but concludes

that “[t]he most casual observer soon

detects a tight relationship among the

various components of Carto's empire.

The same names keep popping up on this

letterhead, that masthead or board; it's

a closed group, and only very rarely

will the name of an outsider appear."

Id. at 985.

During the composition of the story

Jaroslovsky also possessed a copy of the

masthead of Western Destiny, listing

"E.L. Anderson," a known Carto pseudo-

nym, as the sole associate editor. See

Jaroslovsky Dep., exhs. 48 & 49. He

-123-

also had obtained an advertisement pub-

lished in Western Destiny, listing two

Pearson books as available from Noontide

Press. Jaroslovsky Dep., exh. 56.

Finally, Jaroslovsky had a clipping from

the Nazi publication, White Power, which

advertised two of the Pearson works

published by Noontide. See Jaroslovsky

Dep., exh. 54.

We think The Wall Street Journal's

good faith reliance on previously pub-

lished reports in reputable sources of

Liberty Lobby's connections with Noon-

tide and Western Destiny precludes a

finding of actual malice as a matter of

law. See Rosanova v. Playboy Enter-

prises, Inc., 580 F.2d 859, 862 (5th

Cir. 1978) (“The subjective awareness of

probable falsity required by [St. Amant]

cannot be found where, as here, the

-124-

publisher's allegations are supported by

a multitude of previous reports upon

which the publisher reasonably relied.").

B.

We turn next to the charge of

anti-Semitism, leveled against Liberty

Lobby in the Jaroslovsky article and

reported as the subject of a lawsuit in

the Garment column. The district court

suggested that the term “anti-Semitic”

as used by Jaroslovsky is probably a

constitutionally protected statement of

Opinion. The court went on to say that

if “anti-Semitism" were regarded as an

“objectively verifiable fact,” it was

amply proved against Liberty Lobby in

this case. We are unwilling to say that

the term has no core meaning so that it

is an expression of opinion in any

sree

ow

-125-

context, and, as such, always consti-

tutionally protected. Like many words,

the term “anti-Semitic” has both

descriptive and normative content.

Compare, for example, the use of

“fascist” as a generic epithet, see

Buckley v. Littell, 539 F.2d 882 (2d

Cir. 1976), cert. denied, 429 U.S. 1062

(1977), with its use in such a statement

as “He was a cloSe companion of

Mussolini and a Fascist." We tend to

agree with the district court that if

the term “anti-Semitic’ has a core,

factual meaning, then the truth of the

description was proved here.”

7Since its inception, Liberty

Lobby has been an outspoken, often

vicious, critic of Jewish groups and

leaders, and of the United States'

domestic and foreign policy in regard to

Jewish issues. In a letter to sub-

scribers to The Spotlight, Liberty Lobby

characterized “political Zionism" as

"the most ruthless, wealthy powerful and

EES

~126-

We rest our decision, however, on

the fact that Liberty Lobby has adduced

no evidence tending to show the charge

of anti-Semitism was made with the

requisite actual malice. In preparing

(footnote continued from preceding page)

evil political force in the history of

the Western world." Carto Dep., exh. 4;

Letter from Willis A. Carto to sub-

scribers of The Spotlight at 5 (Jan. 2,

1985). The Spotlight has given exten-

Sive publicity to the fantastic claim

that the Holocaust, the extermination of

6,000,000 Jews by Nazi Germany, never

occurred. See LoBue Aff. YF 124, 154,

162, 190. A sampling of articles from

The Spotlight, reveals titles such as:

“Senator Commits Political Suicide by

Assailing Power of Israeli Lobby”;

“Jews' Favorite Candidate Slipping";

“Israel Dictates U.S. Policy"; “ADL

Plans Massive Brainwashing"; “Was There

Really a Holocaust'” and “Free Hess

Sentiment Growing." See id. ¥¥f

151-224. In all its public pronounce-

ments, Liberty Lobby has consistently

maintained the position that American

Jewry exerts a disproportionate in-

fluence cver all American institutions

to the detriment of what Liberty Lobby

believes are America's true interests.

a eee

-127-

his story, Jaroslovsky relied upon

various ADL publications, the Simonds

article in The National Review, as well

as the statements of the former general

counsel of Liberty Lobby which were

published in The Washington Star. See

Jaroslovsky Dep., exh. 45 (ADL publica-

tion in the Facts series referring to

Carto as “a long-time anti-Semite" and

Liberty Lobby as “a front for Anti-

Semitism."); id., exh. 64 (Washington

Star report of statement of Mr. Warren

Richardson, ex-General Counsel of

Liberty Lobby, “condemn[ing] unequivo-

cally the anti-Jewish, racist actions of

the Liberty Lobby and some of their

officers and employees.”").

The Journal's reliance on these and

other reputable sources would preclude

any finding or actual malice as a matter

iL

-128-

of law. See supra p. 19. In Liberty

Lobby v. Anderson, 746 F.2d 1563 (D.C.

Cir. 1984), rev'd on other grounds 106

S. Ct. 2505 (1986), Liberty Lobby and

Mr. Carto used the journalist Jack

Anderson and others for referring to Mr.

Carto as " the leading anti-Semite in

the country” and characterizing Liberty

Lobby as “anti-Semitic.” Id. In pre-

paring their story, Mr. Anderson's

reporters had relied upon various pub-

lished accounts of Liberty Lobby'‘s ac-

tivities, including the ADL publications

and The National Review article relied

upon by Jaroslovsky here. Even applying

the less stringent preponderance of the

evidence test, this court held that

reliance on these sources precluded a

jury from finding actual malice. Id.

Liberty Lobby was well aware of its

-129-

status as a public figure from the

outset of this litigation. Moreover,

this court's decision in the Anderson

case was issued two weeks before Liberty

Lobby filed its complaint in this

action. Yet, after a year of discovery

Liberty Lobby has produced no evidence

to indicate that Jaroslovsky or his

editors had any reason to doubt the same

sources relied upon in Anderson. The

district court's entry of summary judg-

ment for appellees was clearly warranted

on this ground alone.

Cc.

Count three of Liberty Lobby's

amended complaint seeks to attach lia-

bility to the Garment column's repeti-

tion of the charge of anti-semitism and

the publishing statements in referring

tenia

-130-

to this lawsuit. Our prior determina-

tion that the publishing statements are

substantially true would seem to pre-

clude liability for their repetition.

It is conceivable that liability could

attach to the Garment column's repeti-

tion of the charge of anti-Semitism if

it could be shown that the statement was

false and was repeated with knowledge of

falsity or reckless disregard of truth.

However, we think the Garment column's

discussion of a pending lawsuit is

privileged as a fair and accurate

description of a judicial proceeding

under both the common law of the Dis-

trict of Columbia and the Constitution.

The Garment column states, “[s]till

pending is a Liberty Lobby suit against

The Wall Street Journal, which last year

called Liberty Lobby ‘anti-Semitic’ and

-131-

reported that it had published various

tracts by a promoter of racial better-

ment through genetic selection."

App. B, infra, p. 37. The common law of

libel has long held that one who repub-

lishes a defamatory statement “adopts”

it as his own, and is liable in equal

measure to the original defamer. See

Dameron v. Washington Magazine, Inc.,

779 F.2d 736, 739 (D.C. Cir. 1985),

denied, 106 S. Ct. 2247 (1986);

cert.

see also W. Keeton, D. Dobbs, R. Keeton

& D. Owen, Prosser and Keeton on the Law

of Torts 799 (5th ed. 1984) (“Every

repetition of the defamation is a publi-

cation in itself, even though the

repeater states the source ... or makes

clear that he himself does not believe

the imputation.") (footnotes omitted).

es

-132-

To ameliorate the chilling effect

that the republication rule would have

on the reporting of controversial

matters of public interest, common law

courts, including those of the District

of Columbia, recognize a privilege for

fair and accurate accounts of govern-

mental proceedings. See Phillips v.

Evening Star Newspaper Co., 424 A.2d 78,

88-90 (D.C. 1980), cert. denied, 451

U.S. 989 (1981). Following the Restate-

ment, the District of Columbia common

law abandons the concept of “adoption”

where a report of an official proceeding

is "(a) accurate and complete, or a fair

abridgment of what has occurred, and (b)

published for the purpose of informing

the public as to a matter of public

concern." Phillips, 424 A.2d at 88

-133-

(quoting Restatement (Second) of Torts §

611 (1977)).

Federal constitutional concerns are

implicated as well when common law lia-

bility is asserted against a defendant

for an accurate account of judicial

proceedings. In Cox Broadcasting Co. v.

Cohn, 420 U.S. 469 (1975), the father of

a deceased rape victim brought suit for

common law invasion of privacy against a

television station which mentioned his

minor daughter's name in conjunction

with its report on the trial of those

Charged with the crime. The station's

reporter had obtained the victim's name

by attending the trial and inspecting

the indictments in the case. Id. at

470. The Georgia Supreme Court rejected

the television station's first amendment

-~134-

defense, holding that the father was

entitled to take his claim to a jury.

The Supreme Court reversed, noting

that, “[w]with respect to judicial pro-

ceedings in particular, the function of

the press serves to guarantee the fair-

ness of trials and to bring to bear the

beneficial effects of public scrutiny

upon the administration of justice.”

Cox, 420 U.S. at 492. See also Craig v.

Harney, 331 U.S. 367, 374 (1947) ("A

trial is a public event. What trans-

pires in a courtroom is public proper-

ty.... Those who see and hear what

transpired can report it with im-

punity.”"). The Supreme Court held that

Mr. Cohn's suit was barred as a matter

of law, stating, “the First and Four-

teenth Amendments command nothing less

beeen iaaeieeaeaaealle

-135-

than that the states may not impose

sanctions on the publication of truthful

information contained in official court

records open to public inspection."

Cox, 420 U.S. at 495. See also Time,

Inc. v. Firestone, 425 U.S. 448, 457

(1976) (“The public interest in accurate

reports of judicial proceedings is

substantially protected by Cox....").

The Garment column's report on this

lawsuit is privileged both under the

common law and the Supreme Court's

decision in Cox. It fairly and accur-

ately describes the substance of this

action, in the context of a broader

discussion of libel suits in general,

Clearly a matter of public concern. See

Landmark Communications, Inc. v. Vir-

gGinia, 435 U.S. 829 &39 (1978) ("The

-136-

operations of the courts and the judi-

cial conduct of judges are matters of

utmost public concern."). Indeed, since

libel suits are government proceedings

which by definition involve material

that is allegedly false and defamatory,

no meaningful discussion of such suits

would be possible unless such reports

were privileged. The district court's

dismissal of this count on the pleadings

was Clearly appropriate.

D.

The Garment column's discussion of

The National Review trial is similarly

protected. To the extent that it con-

stitutes a factual report on Liberty

Lobby's opening argument in The National

Review trial, the Garment column is

privileged as an accurate report of a

government proceeding. See supra pp.

ee |

~139-.

22-24. It is undisputed that Ms.

Garment attended the opening day of the

trial and used the official transcript

of that proceeding in the preparation of

her column. Where the column quotes or

Summarizes Mr. Lane's opening argument,

comparison with the official transcript

reveals that it does so with complete

accuracy. Mr. Lane did indeed "“ex-

plain[{ ] how The National Review had

tried to bring down great black men" and

he did compare the writings of Mr.

Buckley to the words of Adolf Hitler.

see LoBue Aff., exh. 71 (Transcript of

Proceedings in Liberty Lobby v. National

Review, Inc., No. 79-3445, at 150-82) .°

80n a motion for judgment on the

pleadings, the district court was

entitled to take judicial notice of the

record in The National Review case to

determine that the Garment column's

Summary of those proceedings was fair

, =

-138-

No extended analysis is necessary to

conclude that the remainder of the Gar-

ment column is constitutionally pro-

tected opinion under Ollman. The column

appeared on the editorial page of The

Journal, and is shot through with the

language of personal opinion. The

column characterizes Mr. Lane's argument

as “crude,” “ugly,” “pernicious” and

“breathtaking in its daring.” These are

Clearly statements of opinion dependent

upon personal perspective: what is

crude and ugly appeal to some, may be

forthright and vigorous advocacy to

others. See Greenbelt Coop. Publishing

(footnote continued from preceding page.)

and accurate. See Shuttleworth v, City

of Birmingham, 394 U.S. 147, 157 (1969);

Dixon v. Jacobs, 427 F.2d 589, 596 (D.C.

Cir. 1970) ("It is clear to us that the

district court was entitled to take

judicial notice of its own records.").

-139-

Ass's v. Bressler, 398 U.S. 6, 14 (1970)

(characterization of real estate de-

veloper's vigorous negotiation strategy

at town meeting as blackmail” held

constitutionally protected opinion).

Statements of this type are simply

not amenable to disproof. Whether or

not Mr. Lane in front of a jury “gener-

ates a distinct shiver” is a subjective

impression, and as such inherently

unverifiable. See Franklin & Bussell,

The Plaintiff's Burden in Defamation:

Awareness and Falsity, 25 Wm. & Mary L.

Rev. 825, 869 (1984) ("[E]valuative

Statements of taste and belief can never

provide the basis for a defamation suit

because such statements are incapable of

being proved false.").

On appeal, Liberty Lobby contends

that several alleged factual errors in

-140-

the Garment column strip it of the

constitutional protection otherwise

accorded to statements of opinion. See

Brief of Liberty Lobby at 29-33. Appel-

lant argues that the “black lawyer”

placed at its counsel table by the Gar-

ment column, although a law school

graduate, was not a member of the bar.

Id. at 33. It further contends that The

National Review exercised its preemptory

challenges to assure an all black jury

at trial because it intended to put on

favorable testimony from black wit-

nesses. Id. Thus, the Garment column's

“implication” that Liberty Lobby chose a

black lawyer and a black jury to further

its trial strategy is, in Liberty

Lobby's view, false. Relying on the

concurring opinion of one judge in the

Original panel disposition of the Qllman

-141-

case, see Ollman v. Evans, 713 F.2d 838,

848-49 (D.C. Cir.) (Robinson, C.J.,

concurring). vacated and reh'g en banc

granted, 713 F.2d 838 (1983), Liberty

Lobby argues that the Garment column's

failure to fully and accurately disclose

the underlying facts of The National

Review trial precludes it from claiming

the status of protected opinion. See

Brief of Liberty Lobby at 28.

As both a legal and factual matter,

Liberty Lobby's argument is utterly

devoid of merit. First, the opinion

upon which Liberty Lobby relies was

vacated and became a dissenting position

held by only one judge in the final

disposition of the Ollman case. See

Ollman, 750 F.2d at 1016 (Robinson, J.,

dissenting). Appellant's characteriza-

tion of this position as the holding of

=

-142-

this court is preposterous. The

majority of the court read Gertz “to

provide absolute immunity from defama-

tion actions for all opinions.” Ollman,

750 F.2d at 974. While the stated facts

underlying an opinion may support a

libel action if they are themselves

false and defamatory, an opinion itself

never can.

Second, the alleged inaccuracies

here are either minor in the extreme or

nonexistent. That the black woman at

Liberty Lobby'‘s counsel table was a law

school graduate but not a member of the

bar is immaterial. Referring to her as

a lawyer is not of itself defamatory,

and is, in any event, substantially

true. Moreover, the Garment column does

not state that Liberty Lobby selected an

all black jury. The article stated that

-143-

an all black jury “is not uncommon in

the District"; it did not implicitly or

explicitly attribute the composition of

the jury to either party. The district

court was clearly correct in holding

that the bulk of the Garment column is

constitutionally protected under

Ollman. Since opinions are nonaction-

able as a matter of law, dismissal on

the pleadings of counts three, four, and

five of Liberty Lobby's amended com-

plaint was appropriate.

Bade

On appeal, Liberty Lobby raises

several issues collateral to the merits

of its libel action. First, appellant

asserts that the district court judge

erred in failing to recuse himself after

counsel for Liberty Lobby made two oral

motions for his disqualification. See

—————eee

-144-

Brief of Liberty Lobby at 9-12. These

motions were based upon the district

court's decision not to allow Liberty

Lobby to further depose Ms. Garment.

Id. at 9-10. Second, Liberty Lobby asks

us to pass on a third written motion for

the recusal of the district court

judge. Id. at 10. This motion was

filed after the district court granted

appellees’ dispositive motion, and has

not been passed upon by the district

court judge. Finally, Liberty Lobby

claims that the district court's dis-

covery rulings precluded it from de-

veloping evidence of actual malice on

the part of Ms. Garment, and prevented

it from discovering who actually

authored the Garment column's reference

to the Jaroslovsky article. Id. at

-145-

12-18. These claims need detain us only

briefly.

The only ruling of the district

court on the question of disqualifica-

tion was in response to an oral motion

by appellant's counsel apparently based

on the district court judge's decision

to deny appellants’ second motion to

compel further testimony from Ms.

Garment. See Transcript of Proceedings

taken on Feb. 27, 1986, E.N. 83 (filed

Mar. 6, 1986). The motion was based

entirely upon the trial judge's rulings

from the bench on Giscovery issues. It

is well settled that a motion for

recusal under 28 U.S.C. § 144 or § 455

(1982), must be based upon prejudice

from an extra-judicial source. See

United States v, Heldt, 668 F.2d 1238,

1272 & n.71 (D.C. Cir. 1981), cert.

-146-

enied, 456 U.S. 926 (1982). As we

Qu

stated in United States v. Haldeman, 559

F.24 31, 133 (B.C. Cie. 1976) Con Banc),

ert. denied, 431 U.S. 933 (1977),

"[t]he attitude for which section 144

mandates recusal is not indicated by

prior judicial rulings, or in-court

comments prompted by developments in the

case or prior legal proceedings, or the

exercise of related judicial functions.”

(footnote ommitted). Since Liberty

Lobby's two in-court motions were based

entirely upon the district court's dis-

covery rulings in this case, their

denial was clearly proper.

Appellant's written motion for

recusal was filed over two months after

the district court issued its ruling on

the merits and some six weeks after

appellant filed its notice of appeal in

~147-

this court. See Plaintiff's Motion for

Disqualification. E.N. 110 (filed

Sept. 25, 1986). The district court

presently has before it this recusal

motion and a motion for sanctions filed

by appellees. See Motion of Defendants

for Sanctions, E.N. 96 (filed July 28,

1986). Pursuant to Liberty Lobby's

request, the district court has stayed

all action on defendants’ request for

Sanctions pending disposition of this

appeal. See Order Staying Proceedings,

E.N. 111 (filed Sept. 24, 1986).

Under these circumstances, we do not

think that appellant's written motion

for recusal of the district court judge

is properly before us at this time.

Recusal is a highly personal decision.

The judge must assess the truth of the

facts alleged and determine if they

—_— RENT ——————E—EE———==~*~ ——E = ————EO Ee

-148-

would impeach his impartiality or

appearance of impartiality. See Heldt,

668 F.2d at 1271-72. This is not a

decision that an appellate panel may

make for a district court judge in the

first instance. A motion for recusal

based upon the appearance of impropriety

can have only prospective effect. See

United States v. Murphy, 768 F.2d 1518,

1539 (7th Cir. 1985), cert. denied, 475

U.S. 1012 (1986). Orders entered prior

to the recusal motion are unaffected by

its disposition, absent a showing of

actual bias. See Murphy, 768 F.2d at

1539 ("Our research has not turned up

any case involving mere appearance of

impropriety in which the court has set

aside decisions that had been taken by

the district judge before any party

asked for recusal."). Accord Mims v.

ey Ter

SA ET YO PONY “IY Payee WET

-149-

Shapp, 541 F.2d 415, 417 (3d Cir.

1976). Thus, appellant's motion can in

no way affect the district court's judg-

ment in this action or our holding on

appeal. It is for the district court

judge to decide as an initial matter

whether he will rule on appellee's

motion for sanctions or step aside in

favor of another judge.

Liberty Lobby also argues that the

district court erred in refusing to

compel further deposition testimony by

Ms. Garment. Specifically, appellant

alleges that it was improperly denied

additional discovery which would have

uncovered evidence of Ms. Garment's

actual malice in publishing her account

of The National Review trial. The short

answer to this contention is that evi-

dence of actual malice is irrelevant to

=

-150-

the issues upon which the district court

granted appellees' motion for judgment

on the pleadings. The district court

held that the defamatory portions of the

Garment column were constitutionally

protected opinion. See Liberty Lobby,

Inc. v. Dow Jones & Co., 638 F. Supp.

1149, 1154 (D.D.C. 1986). We have

affirmed that ruling on appeal. See

supra pp. 25-27. Opinions are nonac-

tionable as a matter of law. See supra

p.26. Indeed, the concepts of knowledge

of falsity or reckless disregard of

truth cannot even sensibly be applied to

an expression of personal belief.

Moreover, the record reveals that

the appellant deposed Ms. Garment for

some fifteen hours over the course of

three days. See Deposition of

Suzanne R. Garment, E.N. 87, 88& & 89

-151-

(filed Mar. 12, 1986) [hereinafter

"Garment Dep."]. Much of the question-

ing wandered extremely far afield. Ms.

Garment was asked about her views on the

“suffering of the Palestinian people,”

the massacres at Sabra and Shatila, and

a host of other political subjects not

shown to be even tangentially relevant

to this action. See hitneint Dep. at

553-649. Under these circumstances, the

district court clearly did not abuse its

discretion in cutting off further dis-

covery.

Appellant also contends that the

district court's discovery rulings

prevented it from establishing who

exactly was the author of the Garment

column's reference to this action. See

Brief of Liberty Lobby at 21-26.

Because the identity of the author was

-152-

thus “concealed” from it, appellant was

denied the opportunity to establish

actual malice on the author's part. Id.

at 2a.

This contention is wholly devoid of

merit. First, we have held that the

Garment column's reference to this

action is absolutely privileged as an

accurate report of a judicial proceed-

ing. The mental state of its author is

irrelevant to this issue. Second, the

record reveals that this portion of the

Garment column was revised by Mr.

Melloan, an editor at The Journal, in

consultation with libel counsel. See

Garment Dep. at 357-60. The trial

court's refusal to allow further inquiry

in this area had nothing to do with

authorship. Rather the court held that

-153-

discussions between Mr. Melloan and Dow

Jones* counsel were protected by the

attorney-client privilege. See Trans-

Ccript of Proceedings taken on Feb. 27,

1986, E.N. 83, at 8-10 (filed Mar. 6,

1986).

In Upjohn Co. v. United States, 449

U.S. 383 (1981), the Supreme Court held

that communications between corporate

counsel and a corporation's employees

made for the purpose of rendering legal

advice are protected by the attorney-

client privilege. Such discussions are

shielded from discovery in order to

assure "full and frank legal advice to

the employees who will put into effect

the client corporation's policy." Id.

at 392. Pre-publication discussions

between libel counsel ance editors or

-154-

reporters would seem to come squarely

with the scope of the privilege as

defined in Upjohn. See Dowd v.

Calabrese, 589 F. Supp. 1206, 1215 n.37

(D.D.C 1984) (discussions between editor

and libel counsel protected by attorney-

client privilege); Davis v. Costa-

Gavras, 580, F. Supp. 1082, 1098-99

(S.D.N.Y. 1984) (discussion with at-

torney at pre-release libel review of

film held protected by attorney-client

privilege). The basis for the privilege

was adequately established in the record

and the appellant has made no showing

that facts known to Dow Jones' libel

counsel could not be ascertained from

other witnesses. Under these circum-

stances, the district court's ruling

will be affirmed.

a ©

-155-

IV.

This suit epitomizes one of the most

troubling aspects of modern libel liti-

gation: the use of the libel cémplaint

as a weapon to harass.” Despite the

9Liberty Lobby has brought a

number of libel suits against media

defendants that have characterized it as

racially prejudiced or anti-Semitic.

See, e.g., Dall v. Pearson, 246 F. Supp.

812 (D.D.C 1963), aff'd, C.A. No. 18,

414 (D.C. Cit. Get. 2a, 1966); Oe.

denied, 380 U.S. 965 (1965) (libel suit

based on columnist's statements that

Liberty Lobby's congressional testimony

was an "anti-Semitic diatribe" and “an

attack on the Jews"); Liberty Lobby,

Inc. v. Anderson, 562 F. Supp. 201

(D.D.C. 1983), aff'd in part, rev'd in

Part, 746 F.2d 1563 (D.C. Cir. 1984)

rev'd in part, 106 S. Ct. 2505 (1986)

(libel suit based upon magazine's state-

ments that Liberty Lobby was “anti-

Semitic" and ‘infiltrated by Nazis");

Liberty Lobby, Inc. v. National Review,

Inc., No. 79-3445, (D.C. Apr. 20, 1982)

(libel action bhased on The National

Review's characterization of Liberty

Lobby as "a hotbed of anti-Semitism");

Liberty Lobby, Inc. v. Rees, No.

84-3452, (D.D.C. April. 20, 1982) (libel

action based on characterization of

-156-

patent insufficiency of a number of

appellant's claims, it has managed to

embroil a media defendant in over three

years of costly and contentious litiga-

tion. The message to this defendant and

the press at large is clear: discussion

of Liberty Lobby is expensive. However

well-documented a story, however unim-

peachable a reporter‘’s source, he or she

will have to think twice about publish-

ing where litigation, even to a success-

ful motion for summary judgment, can be

very expensive if not crippling.

(footnote continued from preceding page)

Liberty Lobby as racist and anti-

Semitic); Carto v. Buckley, 649 F. Supp.

502 (S.D.N.¥. 1986) (libel action based

on charge that the “distinctive feature”

ot Liberty Lobby publication, The

j , is “racial and religious

bigotry”). None of these suits has been

successful and in no instance has

Liberty Lobby been allowed to present

its claims to a jury.

-157-

We have conducted an independent

review of the record in this case, and

have found that each of appellant's

Claims is clearly warred on several

common law and constitutional grounds.

The district court's judgment dismissing

all of Liberty Lobby’s claims with

prejudice is

Affirmed.

-158-

Appendix A

Controversial Publisher

RACIAL PURIST USES REAGAN PUB

By Rich Jaroslovsky

Staff Reporter of THE WALL STREET JOURNAL

WASHINGTON--Roger Pearson, a pub-

lisher of politically conservative

academic journals here, has something

other publishers would envy: a glowing

letter of praise from Ronald Reagan.

Plenty of well-known conservatives

have written for Mr. Pearson's publica-

tions, but his kudos from the most

famous conservative of all stands out.

Mr. Pearson has used reproductions of

the 1982 Reagan letter--praising “your

substantial contributions to promoting

and upholding those ideas and principles

we value at home and abroad”“--in bulk

-159-

mailings to solicit sales and subscrip-

tions.

Those who have received copies of

the presidential letter might be sur-

prised to learn that Mr. Pearson, a

British-born anthropologist, has spent

much of his career advancing the theory

that the “purity” of the white race is

endangered by “inferior” genetic stock.

He has warned that people of European

descent may be “annihilated as a

species” unless they act to preserve

their “racial identity,” and he cur-

rently receives funds from a controver-

Sial foundation dedicated to “racial

betterment.”

The 57-year-old Mr. Pearson even

draws harsh attacks from other elements

of the hard right, members of which fear

he may discredit their goals. He

-160-

resigned from the World Anti-Communist

League, a federation he once headed,

after some of its chapters charged that

he encouraged the membership of European

and Latin American groups with Nazi or

neo-Nazi ties. Former Maj. Gen. John

Singlaub, who now heads the league's

U.S. affiliate, calls Mr. Pearson an

“embarrassment” who is “not at all wel-

come in any activity” of the group.

“The White House ought to repudiate

this bird,” says Justin Finger, civil-

rights director of the Anti-Defamation

League of B'nai B'rith, the Jewish

Organization. Mr. Finder complained to

the White House when he learned of the

letter this summer, but he says he

hasn't received any response.

-161-

Composed by Pearson Associate

Though the letter bore Mr. Reagan's

Signature, it was actually composed by a

Person associate who had joined the

White House staff. There isn't any

evidence that the president knows Mr.

Pearson, and Mr. Reagan's public state-

ments on race don't bear any resemblance

to Mr. Pearson's writings. But the

incident shows how a highly ideological

presidency--conservative or liberal--can

be used by well-connected outside ac-

tivities to gain respectability.

What's more, the White House isn't

disavowing the letter, or repudiating

Mr. Pearson, though it wants him to stop

using the letter to sell subscriptions

to two journals he currently publishes,

The Mankind Quarterly and The Journal of

Social, Political and Economic Studies.

’

-162-

Anson Franklin, an assistant presiden-

tial press secretary, says: "“The presi-

dent has long-neld views opposing racial

discrimination in any form, and he would

never condone anything to the contrary.

But that's a general statement; I'm not

addressing Dr. Pearson specifically.”

The White House says the letter was

written after Mr. Pearson sent to the

president a copy of one of his journals

that didn't espouse his controversial

racial views. Not all such gifts are

answered so glowingly, but in this case

Mr. Pearson had a champion in Robert

Schuettinger, then a mid-level White

House official and currently in the

Defense Department.

Mr. Schuettinger says he has known

Mr. Pearson for several years and is on

the editorial board of one of Mr.

Pearson's publications. He concedes he

wasn't aware of all of Mr. Pearson's

past activities but says "there was

absolutely no valid grounds to accuse

him of racism," though Mr. Pearson may

have been “a Littell naive" in his asso-

Ciations.

In two lengthy interviews, the

affable Mr. Pearson largely refuses to

comment on the record about his activi-

ties, though he doesn't dispute the

central elements of this account of

them. But he insists, "I'm not ashamed

of anything I've said or written."

‘Breeding Ideal Types'

Among those writings is an old

article calling for the use of artifi-

Cial insemination to preserve “pure

healthy stock" and allow "breeding back

the ‘ideal’ types." The 1958 article,

-164-

in a magazine Mr. Pearson founded called

Northern World, also warned of a “ter-

rible outcome" should such a program of

genetic selection "fall into the hands

of the cosmopolites or one-worlders, or

any who wish to see our race and our

heritage destroyed."

Other Pearson writings appeared in

Western Destiny, a magazine published by

the far right, anti-Semitic Liberty

Lobby. Mr. Pearson edited Western

Destiny briefly in the mid-1960s and

wrote several books on race and eugenics

that were issued by Liberty Lobby's

publishing arm. These pamphlets are

still sold by the National Socialist

White People's Party, the Ariington,

Va.-based American Nazi group; Mr.

Pearson says he doesn't have any connec-

tion with that group.

aan

After breaking with Liberty Lobby

Leader Willis Carto in a personal dis-

pute, Mr. Pearson began moving more into

the conservative mainstream, holding

academic posts at several small colleges

and authorizing [sic] an anthropology

textbook. In 1977, he was on the

Original board of editors of Policy

Review, a journal published by the Heri-

tage Foundation, a mainstream conserva-

tive think tank. Knowledgeable sources

Say he was asked to resign when Heritage

officials learned of his background.

Mr. Pearson currently runs a tax-

exempt organization called the Council

on Social and Economic Studies out of a

three-room suite in a downtown Washing-

ton apartment building. Besides his

publishing income, he acknowledges that

he also receives money from the Pioneer

-166-

Fund, a controversial New York-based

trust fund dedicated to “racial better-

ment." The fund also has supported the

work of psychologist Arthur Jensen and

physicist William Shockley, who hold

views on race and heridity similar to

Mr. Pearson's.

Mr. Pearson's current publications,

which generally play down his racial

views, boast contributions from some

eminently respectable conservative

political figures. Spokesmen for

several of Mr. Pearson's contributors

Say they weren't aware of his background

when they submitted articles.

"Generally, conservatives are so

concerned with conspiracies on the left

that they don't realize when they may be

part of a conspiracy on the right,”

asserts John Rees, a contributing editor

—= tt ;t:t*~=“SCC

-167-

of the John Birch Society's magazine and

a harsh critic of Mr. Pearson.

-168-

Appendix B

THERE'S NOTHING LIKE A LIBEL TRIAL

FOR AN EDUCATION

Capital Chronicle

By Suzanne Garment

Behind a lectern in a Washington,

D.C., courtroom this week stood Mark

Lane, lawyer to controversial causes of

right and left, making his opening

statement. He paused for emphasis

before hitting the jury with his central

thesis: “National Review, since its

inception, has been a racist, pro-Nazi,

pro-fascist publication.”

National Review is the conservative

magazine edited by William F. Buckley

Jr. Was Mr. Lane making his charge on

behalf of some aggrieved liberal--a

a

-169-

maligned arms-control enthusiast, per-

haps, or some annoyed chapter of the

American Civil Liberties Union? No,

Mr. Lane's Client is the Liberty Lobby,

who leader Willis Carto once promoted a

Joint Council for Repatriation to help

Blacks to go back to Africa. The

resulting legal contest is bizarre, but

also instructive.

Over the years, Liberty Lobby and

Mr. Carto have sued a number of pub-

lishers that called them racist and

anti-Semitic. Still pending is a

Liberty Lobby suit against The Wall

Street Journal, which last year called

Liberty Lobby “anti-Semitic” and

reported that it had published various

tracts by a promoter of racial better-

ment through genetic selection. Liberty

Lobby brought one of these results

-170-

against National Review and lost. Now a

judge and jury are hearing the trial of

the counterclaim.

The look of the courtroom on the

trial’'s opening day gave notice that

this was not an ordinary proceeding.

True, over at National Review's table

there sat a conventional bunch, Mr.

Buckley and his lawyers. Across the

room with Mr. Carto were the bearded

Mr. Lane in friendly navy blazer and

gray slacks, a young female paralegal

with the kind of nose that suggests the

presence of a trust fund, and a young,

good-looking black female lawyer in a

high-collared blouse. The moment the

jury filed in--all black, as is not

uncommon in the District--you began to

suspect that Mr. Lane might have some-

thing in mind.

-171-

He opened with a well-known quote

from Iago in Shakespeare's “Othello”:

“He who filches from me my good name

robs me of that which enriches not him

but makes me poor indeed."

Then Mr. Lane picked up speed.

“Iago was an interesting character,” he

instructed his jury. “What he did was

to bring down a great black man named

Othello because he was black.” “The

analogy,” he said, “continues in this

case.”

Mr. Lane explained how National

Review had tried to bring down great

black men. He gave a critique of the

magazines’ position on Adam Clayton

Powell Jr. He condemned its attitude

toward Martin Luther King Jr. He built

to a peroration: “If you read the words

of Adolf Hitler regarding superior races

-172-

and advanced races and inferior races,

you will have difficulty separating the

words of Mr. Buckley in his editorials

in the National Review from the words of

Adolf Hitler."

Mr. Lane's theme was ironic in more

than the obvious ways. Today's American

conservatism does indeed have part of

its roots in a seedbed infested with

racism, chauvinism and paranoid looni-

ness. When National Review was found in

the mid-1950s, the right‘s presence on

the U.S. political state was small and

fading; conservatism seemed fatally tied

to this pernicious kookiness.

From time to time in National Review

you can still hear an echo of the

right's more distasteful origins. The

sound fades as time passes because over

a

-173-

the years Mr. Buckley and his associ-

ates, with National Review as a rallying

place, pried conservatism loose from the

fingers of its more demented followers.

Some people would claim that these

“respectable conservatives" have only

managed to put an acceptable mask over

what remains an illegitimate set of

views. Willis Carto, for his part,

Clearly thinks the National Review bunch

profoundly changed the character of the

American right. That is presumably why

he is at permanent war with it.

So we see the Liberty Lobby standing

up in court and calling Mr. Buckley

racist, most likely calculating that

black jurors will be too hypnotized by

this possibility to consider other facts

important. This is not just an ordinary

lawyer's trick. This is breathtaking in

«i t4-

its daring. Most of us would be embar-

rassed to appeal to a racial or religi-

ous minority audience so crudely. We

know the Fair Play Patrol would at once

swoop down and cart us away. But the

Carto team is of sterner stuff, able to

put its head down and go for broke.

It gets you thinking about libel

suits in general and their place in

democratic politics. They are in vogue

now, especially as a way to fight the

press. Without a doubt current jour-

nalistic habits deserve some fighting

against. Still, these suits attacking

pernicious speech generate their own

share of pernicious speech. Trials held

to fight destructive ugliness in

American public life provide their own

arena in which the parties can make ugly

appeals. Highly public events like a

-175-

blazing newspaper headline, or Louis

Farrakhan wowing them at Madison Square

Garden, can be a grim sight. But

believe me, Mark Lane in from of the

Jury also generates a distinct shiver.

Democracies keep searching for the

rules and procedures that will keep

their violent and excessively partisan

tendencies surely in check. There

aren't any. Each new device will prove

vulnerable to abuse in its turn. The

only real defense lies in imprecise

areas like education and culture, where

matters are never settled and battles

never won.

When you catch a glimpse of the muck

lying in pockets just under our politi-

cal surface, you are reminded of how

lucky we've been. Next time I walk

~176-

through those courtroom doors I will

knock wood.

-177-

APPENDIX G

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

Vv.

Dow Jones & Company, Inc., et al.

Before: Bork, Circuit Judge

ORDER

Upon consideration of Appellant's

Motion for disqualification of Judge

Bork pursuant to Title 28 Section 455

United States Code, it is

ORDERED, by the Court, that

Appellant's aforesaid motion is denied

~178-

for the reasons set forth in the at-

tached memorandum.

Per Curiam

For the Court:

George A. Fisher, Clerk

BY:

Patricia L. Chatman

Deputy Clerk

FILED DEC 7, 1987

No. 86-7017 -- Liberty Lobby, Inc. v.

Dow Jones & Co., Inc,

MEMORANDUM

In this appeal, Liberty Lobby chal-

lenges the district court's dismissal of

its action for defamation against

defendants Dow Jones & Co., Inc. and

Rich Jaroslovsky. See Liberty Lobby,

Inc. v. Dow Jones & Co., Inc., 638 F.

Supp. 1149 (D.D.C. 1986). The suit

-179-

arises from two articles which appeared

in The Wall Street Journal, a daily

newspaper published by Dow Jones & Co.

The first piece was authored by defen-

dant Rich Jaroslovsky. The second

article was authored by Ms. Suzanne

Garment. Ms. Garment is not a party to

this action, and is not presently em-

ployed by Dow Jones & Co. or The Wall

Street Journal. There is evidence in

the record indicating that Ms. Garment

may have discussed her intention to

write a column concerning Liberty Lobby

with her husband, Leonard Garment.

However, there is no evidence that Mr.

Garment played any role in the composi-

tion of Ms. Garment's column.

Based upon these facts, appellant

Liberty Lobby has moved for my recusal

from this appeal for two reasons.

-180-

First, appellant asserts that the

Garments were active supporters of my

nomination to be an Associate Justice of

the United States Supreme Court.

Second, appellant contends that the

Garments and I are close personal

friends. Under these circumstances,

appellant concludes that my impartiality

might reasonably be questioned, and thus

recusal is mandated under 28 U.S.C.

§ 455 (1982). After careful considera-

tion of appellant's filings, I have con-

cluded that my recusal from this matter

is unwarranted.

It.

I have no connection, financial or

otherwise, with any of the named parties

in this proceeding. The basis for

appellant's motion is that two

individuals, one of whom is only

-181-

tangentially involved with this lawsuit,

were active supporters of my nomination

to be an Associate Justice of the United

States Supreme Court. Appellant con-

tends that these two individuals,

Suzanne and Leonard Garment, “were

apparently the two most active persons

in the United States in support of Judge

Bork's nomination...." Appellant's

Motion for Disqualification at 2.

Appellant also alleges that Leonard

Garment acted as my “unofficial spokes-

person" during the confirmation process

and that "it was widely reported in the

press” that both Mr. and Ms. Garment

authored numerous documents in support

of my nomination. Id. at 2. Appellant

further contends that Mr. and Ms.

Garment have “held themselves out to be

close friends and associates of Judge

-182-

Bork." Id. According to appellant,

these alleged facts render this action a

“proceeding in which [my] impartiality

might reasonably be questioned,” thus

mandating recusal. 28 U.S.C. § 455(a)

(1982).

IIl.

It is well-settled that a judge

faced with a recusal motion under

section 455 must evaluate the truth or

falsity of the allegations set forth in

the motion for disqualification. See

United States v. Heldt, 668 F.2d 1238,

1271 (D.C. Cir. 1981). In this case,

the contention that Mr. Garment was my

spokesperson or agent, officially or

unofficiallv, is untrue. Mr. Garment’'s

actions in support of my nomination were

not in any way coordinated with or

endorsed by me. Mr. Garment played no

-183-

role in my preparation for the hearings

Or in any of my subsequent activities

connected with the confirmation process.

Many groups and individuals took

strong public positions for or against

my confirmation. Were I to recuse

myself every time an individual or group

who had supported or opposed my con-

firmation was connected with a lawsuit,

however tangentially, I would, in my

Opinion, be failing in my judicial duty

and be of greatly diminished usefulness

to this court and the litigants it

serves. Cf. Code of Judicial Conduct

for United States Judges, Canon 3A(1)

("A judge should be unswayed by partisan

interest, public clamor, or fear of

Criticism.”). For these reasons, I

believe that recusal cn the grounds that

Mr. and Ms. Garment were supporters of

-184-

my nomination would be wholly unwar-

ranted.

Appellant‘s motion also suggests

that Mr. and Ms. Garment and I are close

personal friends. Mr. Garment is a

well-known lawyer in Washington. We

served in the same administration some

years ago, and we meet occasionally at

social functions. Under Canon 13 of the

ABA Canons of Judicial Ethics recusal is

mandatory where “a near relative is a

party.” The Advisory Committee on

Judicial Activities has suggested that

as far as friendships are concerned,

recusal is in no sense mandatory. The

judge must determine whether an ac-

quaintance is “a very close friend and

almost part of the family” or “merely

within the wide circle of a judge's

friendships. “Advisory Opinion No. ll

-185-

(January 21, 1970). I have no diffi-

culty in finding that my friendship with

the Garments falls into the latter cate-

gory.

Moreover, it is far from clear that

the Garments’ rather tenuous connection

with this lawsuit would render recusal

proper even if our relationship were

more substantial. Liability is not as-

serted against either of the Garments.

Leonard Garment's only connection to

this action is the fact that his wife

may have discussed with him her inten-

tion to write a column concerning

Liberty Lobby. Given the attenuated

nature of Mr. Garment‘’s connection with

this lawsuit, and my purely social

acquaintance with both the Garments, I

am confident in my ability to render an

impartial judgment.

-186-

Under these circumstances, I feel

fully capable of disregarding this

relationship and I feel others can

reasonably be expected to believe that

the acquaintance is disregarded. See

Advisory Opinion No. ll.

For the foregoing reasons, the

motion for my recusal is denied.

~187-

APPENDIX H

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

Vv.

Dow Jones & Company, Inc., et al.

and Rich Jaroslovsky

Before: Edward, Bork and Williams,

Circuit Judges

ORDER

It is ORDERED, by the Court, sua

sponte, that this Court’s November 19,

1987, Order allocating times for oral

argument is hereby vacated. And, it is

FURTHER ORDERED, by the Court, sua

sponte, that the following times are

allotted for the oral argument:

-188-

Appellant -- 15 minutes

Appellee -- 15 minutes

Only one counsel per side will be

allowed to argue.

Per Curiam

For the Court:

George A. Fisher, Clerk

By:

Catherine L. Bateman

Deputy Clerk

FILED DEC 7, 1987

-189-

APPENDIX I

United States Court of Appeals

For the District of Columbia Circuit

No. 86-70i7

Liberty Lobby, Inc., Appellant

Vv.

Dow Jones & Company, Inc.

and Rich Jaroslovsky, Appellees.

APPELLANT"S MOTION FOR DISQUALIFACTION

OF HONORABLE ROBERT H. BORK

PURSUANT TO TITLE 28 SECTION 455

UNITED STATES CODE

The appellant respectfully requests

that Honorable Robert H. Bork recuse

himself from hearing the argument of

this cause set for December 8, 1987, in

that his impartiality might be reason-

ably questioned as a result of his close

association with two of the central

figures in the case. The-appellant

-190-

submits herewith a statement of points

and authorities and one page from the

testimony of Suzanne Garment in support

of this motion. Inasmuch as the title

of the case could not reveal to Judge

Bork or to any other person the basis

upon which this motion is founded,

appellant specifically states that it

alleges no wrongdoing or misconduct by

Judge Bork.

November 23, 1987

Respectfully submitted,

Mark Lane

132 Third Street, S.E.

Washington, D.C. 20002

(202) 547-6700

Counsel for Appellant

-191-

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

¥.

Dow Jones & Company, Inc.

and Rich Jaroslovsky, Appellees.

STATEMENT OF POINTS AND AUTHORITIES

IN SUPPORT OF APPELLANT"S MOTION FOR

DISQUALIFICATION OF HONORABLE ROBERT H.

BORK PURSUANT TO TITLE 28 SECTION

UNITED STATES CODE

Introduction

An examination of the title of the

case neither reveals nor provides evi-

dence as to the names of the parties

with whom Judge Bork has a relation-

Ship. For that reason the appellant

neither states nor implies that Judge

Bork has engaged in any improper con-

duct. The appellant asserts, pursuant

-192-

to Title 28 Section 455(a) that the

impartiality of Judge Bork might be rea-

sonably questioned given the circum-

stances of this case.

The Facts

An article published by appellees,

and a basis of the action for defamation

brought by the appellant, was written by

Suzanne Garment after consultation with

her husband Leonard Garment, Esquire.

The record reveals that Ms. Garment had

little legal background and a paucity of

knowledge of legal matters and implies

that her husband, Leonard Garment,

Esquire played a larger role in the

development of the article than previ-

ously admitted. What is uncontroverted

is the fact that Mrs. Garment wrote the

defamatory article and that she had

-193-

consulted with her husband, Leonard

Garment, Esquire, about it.

It is also clear that both Leonard

Garment, Esquire and Suzanne Garment

held themselves out to be close friends

and associates of Judge Bork and were

apparently the two most active persons

in the United States in support of Judge

Bork's nomination to the United States

Supreme Court. Mr. Garment appeared on

numerous radio and television programs

as the unofficial spokesperson for Judge

Bork during that period, released Judge

Bork's position to the news media at

least on one occasion, ostensibly with

Judge Bork's permission. In addition,

it was widely reported in the press that

Suzanne Garment, the author of a defama-

tory article in this case, was also the

author, with here husband, of documents

~194-

widely circulated in support of Judge

Bork's nomination to the Supreme Court.

Under the circumstances, it seems

clear that Judge Bork's impartiality in

this matter might reasonably be ques-

tioned and that due to actions which

have taken place outside the four

corners of the courtroom, it might be

asserted the Judge Bork would be more

favorably inclined toward the appellees.

The Law

The United States Court of Appeals

for the District of Columbia held that

"Section 455 contains a provision

calling for disqualification in a ‘pro-

ceeding in which [a judge's] imparti-

ality might be reasonably questioned,'

[and] we join our sister circuits in

concluding that a showing of an appear-

ance of bias or prejudice sufficient to

-195-

permit the average citizen reasonably to

question a judge's impartiality is all

that must be demonstrated to compel

recusal under 455." United States v.

Heldt, 668 F.2d 1238, 1277 (D.C. Cir.

1981). In support of that contention

the Court of Appeals cited United States

v. Mirkin, 649 F.2d 78 (lst Cir. 1981);

In re International Business Machines

Corp., 618 F.2d 923, 929 (2d Cir. 1980);

Rice v. McKenzie, 581 F.2d 1114 (4th

Cir... 1978), PB j vy, P

Const. Co., 609 F.2d 1101, 1111 (5th

Cir. 1980), cert denied 499 U.S. 820,

101 S.Ct. 78 (1981); Roberts v. Bailar,

625 F.2d 125, 129 (6th Cir. 1980); SCA

Servs, Inc. v. Morgan, 557 F.2d 110 (7th

Cir. 1977); United States v. Poludniak,

No. 80-2133 (8th Cir. Aug. 14, 1981);

Wood v. McEwen, 622 F.2d 797, 802 (9th

-196-

Cir. 1981); United States v. Ri r, 540

F.2d 459 (10th Cir.) cert denied, 429

y.8. 951, 97 8.Ce. 370 (i976).

The District of Columbia Court of

Appeals addressed the question of the

recusal of the administrative officer

who acted in a adjudicative or quasi-

judicial capacity in Morrison v.

District of Columbia Board of Zoning

Adjustment, 422 A.2d 347 (D.C.App.

1980). In Morrison the Court held that

it has generally been recognized that

the same rules required the recusal of

judicial officers are applicable to

administrative officers who act in a

adjudicative or quasijudicial capacity.

In that case, the court. ruled:

In the absence of a statute provided

otherwise, a judge must recuse

himself when his alleged bias arises

from outside the “four corners of

the court-room," Tynan v. United

States, 126 U.S.App. D.C.. 206, 210,

-197-

376 F.2d 761, 765, cert denied, 389

U.S. 645, 88 &.Ct.. 95, i939 &.Bea.20

Ill. 1956), and results in “an

opinion on the merits on some basis

other than what a judge learned from

his participation of the case." In

re Evans, D.C.App. 411 A.2d 984, 955

(1980), quoting United States v.

Grinnell Corp., 384 U.S. 563, 583,

86 S.Ct. 1698, 17120, 16 L.Ed.2d 778

(1966). .

Morrison v.

District of Columbia, etc.

422 A.2d 347, 350 (D.C. App. 1980)

In Evans cited above the Court con-

cluded “the appearance of bias on the

part of the trial judge necessitates

reversal" 411 A.2d at 993, and found

that Rule 63-I [comparable to the sec-

tions under which this motion has been

brought] “is by its terms mandatory,”

citing Brotherhood of Locomotive Firemen

& Enginemen v. Bangor & Aroostook

Railroad Co., 127 U.S.App.D.C. 23, 29,

380 F.2d 570, 576, cert denied, 389 U.S.

327, 88 S.Ct. 437, 19 L.Ed.2d 560

(1967). The Evans court continued “[il]f

-198-

an affidavit meets the rule's standards,

the judge has a duty to recuse himself.

Morse v. Lewis, 54 F.2d 1027, 1031 (4th

Cir), cert denied, 286 U.S. 577, 52

S.Ct. 640, 76 L.Ed. 1291 (1932).

Conclusion

For the reasons set forth above the

appellant respectfully requests that

Judge Bork recuse himself from con-

sideration of this matter with the clear

understanding that the appellant does

not state or imply that Judge Bork has

acted improperly in any fashion regard-

ing this matter.

November 23, 1987

Respectfully,

Mark Lane

132 Third Street, S.E.

Washington, D.C. 2002

Counsel for Appellant

——

-199-

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

Vv.

Dow Jones & Company, Inc.,

and Rich Jaroslovsky, Defendants

EPOSITION OF SUZANNE R. GARMENT

Washington, D.C.

Monday, November 18, 1985

Deposition of SUZANNE R. GARMENT,

called for examination pursuant to

notice of deposition, a the law offices

of Mark Lane, Esq., 105 Second Street,

N.E., at 1:07 p.m. before REBECCA E.

EYSTER, a Notary Public within and for

the District of Columbia, when were

present on behalf of the respective

parties:

-200-

MARK LANE, ESQ.

105 Second Street, N.E.

Washington, D.C. 20002

On behalf of the Plaintiff.

ROBERT P. LO BUE, ESQ.

Patterson, Belknap, Webb & Tyler

30 Rockefeller Plaza

New York, New York 10112

On behalf of the Defendants

ALSO PRESENT:

Brent Whitmore

Q Did you discuss this proposed

column with your husband?

A I must have--I would guess that I

told him that I was going.

MR. LO BUE: I think I should

instruct the witness that there is an

interspousal immunity at this point

which she can claim.

BY MR. LANE:

Q Not to the question of whether

she discussed it with him.

-201-

MR. LO BUE: That is fair enough,

but everything further, the actual

content, would be privileged.

THE WITNESS: I would guess that I

did.

BY MR. LANE:

Q Is he a lawyer?

A Yes.

Q And has he been a lawyer for

officials of the United States Govern-

ment?

-202-

CERTIFICATE OF SERVICE

I hereby certify that a true copy of

the foregoing Appellant's Motion for

Disqualification of Honorable Robert H.

Bork Pursuant to Title 28 Section 455

United States Code and accompanying

Statement of Points and Authorities in

Support thereof was mailed, first class,

postage prepaid to Robert P. LoBue,

Esquire, Patterson, Belknap, Webb &

Tyler, 30 Rockefeller Plaza, New York,

New York 10112 on this 23rd day of

November, 1987.

Mark Lane

RECEIVED NOV 23, 1987

-203-

APPENDIX J

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

ss

Dow Jones & Company, Inc., et al.

ORDER

It is ORDERED, by the Court, sua

sponte, that the following times

allotted for the oral argument of the

above entitled case(s):

Appellant -- 30 minutes

Appellee -- 30 minutes

The panel considering this case will

now consist of Circuit Judges Edwards

’

-204-

and Bork and Senior District Judge

Parker.

For the Court:

George A. Fisher, Clerk

By:

Linda E. Jones

Deputy Clerk

FILED NOV 19, 1987

APPENDIX K

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Appellant

a

Dow Jones & Company, Inc., et al.

ORDER

It appearing from the briefs filed

by the parties that the above entitled

case may not fall within the intent and

purpose of Rule 13(1i) of the General

Rules of this Court, it is

ORDERED that oral argument be heard

on Tuesday, December 8, 1987 at 9:30

a.m. before Judges Robinson, Edwards and

Parker.

-206-

A further order of the Court will be

issued regarding allocation of time for

Oral argument. The attached Form 72

should be completed and returned to the

clerk's office on or before December 1,

1987.

For the Court:

George A. Fisher, Clerk

By:

Patricia L. Chatman

Deputy Clerk

FILED NOV 4, 1987

APPENDIX L

United States Court of Appeals

For the District of Columbia Circuit

No. 86-7017

Liberty Lobby, Inc., Plaintiff,

¥;

Dow Jones & Company, Inc.

and Rich Jaroslovsky

Defendants.

ORDER

Upon consideration of plaintiff's

motion to stay proceedings pending dis-

position of appeal, defendants' opposi-

tion thereto, and the entire record

herein, it is, this 24th day of

September, 1986,

ORDERED that plaintiff's motion is

granted; and it 1s FURTHER ORDERED, that

defendants' motion for sanctions is held

-208-

in abeyance until disposition of the

appeal of this case by the United States

Court of Appeals.

Thomas Penfield Jackson

U.S. District Judge

FILED SEP 25, 1986

-209-

APPENDIX M

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 84-3455

(Jackson, J.)

LIBERTY LOBBY, INC.

Plaintiff

Vv.

DOW JONES & COMPANY, INC.

and RICH JAROSLOVSKY

Defendants.

MOTION ASSERTING BIAS OR

PREJUDICE OF THE COURT AND

FOR DISQUALIFICATION OF JUDGE JACKSON

The plaintiff respectfully requests

that pursuant to §144 of Title 28 of the

United States Code and pursuant to §455

of Title 28 of the United States Code,

that the Court be disqualified due to

bias and prejudice against the plaintiff

-210-

and in favor of the defendants and that

the Court disqualify itself in this pro-

ceeding because his impartiality might

be reasonably questioned.

In support of this motion the plain-

tiff submits herewith the Affidavit of

Willis A. Carto, Exhibits attached

hereto and the Certificate of Counsel

Supporting the Affidavit pursuant to

Title 28 of the United States Code as

well as a statement of points and

authorities.

September 25, 1986

Respectfully submitted,

Frank Flury

5811 Baltimore Avenue

Riverdale, Maryland 20737

(301) 927-3400

D.C. Bar # 70557

-211-

Mark Lane

105 Second Street, N.E.

Washington, D.C. 20002

(202) 547-6700

Member New York State Bar

Attorneys for Plaintiff

-212-

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 84-3455

(Jackson, J.)

LIBERTY LOBBY, INC.

Plaintifێ

Vv.

DOW JONES & COMPANY, INC.

and RICH JAROSLOVSKY

Defendants.

STATEMENT OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION ASSERTING

BIAS OR PREJUDICE OF THE COURT AND

FOR DISQUALIFICATION OF JUDGE JACKSON

The plaintiff herein has moved pur-

Suant to §144 of Title 28 of the United

States Code for the withdrawal of Judge

Jackson based upon the Affidavit at-

tached hereto asserting that the Court

has a personal bias or prejudice against

the plaintiff and in favor of the

-213-

defendants, and requesting that the

Court proceed no further therein but

that another judge be assigned to hear

such proceeding. The Affidavit sub-

mitted herewith in accordance with §144

U.S.C. Title 28 states the facts and

reasons for the belief that bias or

prejudice exists and is submitted here-

with with a Certificate of Counsel of

record stating that it is made in good

faith.

The plaintiff herein has also moved

for the disqualification of Judge

Jackson pursuant to 455 of Title 28 of

the United States Code, asserting that

the Court should disqualify himself in

this proceeding because his impartiality

might be reasonably questioned.

In support of each motion the plain-

tiff submits the Affidavit of Willis A.

-214-

Carto, an officer of the plaintiff cor-

poration.

The United States Court of Appeals

for the District of Columbia held that

"§455 contains a provision calling for

disqualification in a ‘proceeding in

which [a judge's] impartiality might be

reasonably questioned,’ [and] we join

our sister circuits in concluding that a

showing of an appearance of bias or

prejudice sufficient to permit the aver-

age citizen reasonably to question a

judge's impartiality is all that must be

demonstrated to compel recusal under

§455." United States v. Heldt, 668 F.2d

1238, 1277 (D.C. Cir. 1981). In support

of that contention the Court of Appeals

cited United States v. Mirkin, 649 F.2d

78 (lst Cir. 1981); In re International

Business Machines Corp., 618 F.2d 923,

-215-

929 (2d Cir. 1980); Rice v. McKenzie,

581 F.2d 1114 (4the Cir. 1978); Postash-

nick v. Port City Const. Co., 609 F.2d

1101, 1111 (5th Cir. 1980), cert denied

449 U.S. 820, 101 S.Ct. 78 (1981);

Robert v. Bailar, 625 F.2d 125, 129 (6th

Cir. 1980); A Vv Vv P

557 F.2d 110 (7th Cir. 1977); United

States v. Poludniak, No. 80-2133 (8th

Cir. Aug. 14, 1981); Wood v. McEwen, 622

F.2d 797, 802 (9th Cir. 1981); United

States v. Ritter, 540 F.2d 459 (10th

Cir.) cert denied, 429 U.S. 951, 97

S.Ct. 370 (1976).

The District of Columbia Court of

Appeals addressed the question of the

recusal of the administrative officer

who acted in a adjudicative or quasi-

judicial capacity in Morrison v. Dis-

ri f lumbi

-216-

Adjustment, 422 A.2d 347 (D.C.App.

1980). In Morrison, the Court held that

it has generally been recognized that

the same rules requiring the recusal of

judicial officers are applicable to

administrative officers who act in a

adjudicative or quasi-judicial capacity.

In that case, the court ruled:

In the absence of a statute provid-

ing otherwise, a judge must recuse

himself when his alleged bias arises

from outside the “four corners of

the court-room,"” Tynan v. United

States, 126 U.S.App. D.C. 206, 210,

376 F.2d 761, 765, cert denied, 389

U.S. 845, 66 8.Ct. 95, 19 &.8d.26

Ill. 1956), and results in “an

opinion on the merits on some basis

other than what a judge learned from

his participation of the case.” In

re Evans, D.C.App. 411 A.2d 984, 995

(1980), quoting United States v.

Grinnell Corp., 384 U.S. 563, 583,

86 S.Ct. 1698, 1710, 16 L.Ed.2d 778

(1966).

Morrison v.

District of Columbia, “tc.

422 A.2d 347, 350 (D.C. App. 1980)

-317-

In Evans cited above the Court con-

cluded "the appearance of bias on the

part of the trial judge necessitates

reversal” 411 A.2d at 993, and found

that Rule 63-I [comparable to the sec-

tions under which this motion has been

brought] “is by its terms mandatory,"

citing Brotherhood of Locomotive Firemen

& Enginemen v. Bangor & Aroostook Rail-

road Co., 127 U.&S.App.D.C. 23, 29, 380

F.2d 570, 576, cert denied, 389 U.S.

327, 88 &§.Ct. 437, 19 L.Ed.2d 560

(1967). The Evans court continued "[i]lf

an affidavit meets the rule's standards,

the judge has a duty to recuse himself.

Morse v. Lewis, 54 F.2d 1027, 1031 (4the

Cir), cert denied, 286 U.S. 557, 52

S.Ce. 660, 76 b.Be. iZ3i tidsd2.

For the reasons set forth above and

contained in the Affidavit of Willis A.

-218-

Carto attached hereto the plaintiff

respectfully requests that due to the

allegations of personal bias or preju-

dice against the plaintiff and in favor

the defendants, the Court proceed no

further herein but another judge be

assigned to hear this proceeding pur-

suant to 144 Title 28 of the United

States Code and that the Judge dis-

qualify himself in this proceeding

because his impartiality might be rea-

sonably questioned in conformity with

455 Title 28 of the United States Code.

September 25, 1986

Respectfully submitted,

Frank Flury

5811 Baltimore Avenue

Riverdale, Maryland 20737

(301) 927-3400

D.C. Bar # 70557

EE

-219-

Mark Lane

105 Second Street, N.E.

Washington, D.C. 20002

(202) 547-6700

Member New York State Bar

Attorneys for Plaintiff

-220-

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 84-3455

(Jackson, J.)

LIBERTY LOBBY, INC.

Plaintiff

Vs

DOW JONES & COMPANY, INC.

and RICH JAROSLOVSKY

Defendants.

AFFIDAVIT OF WILLIS A. CARTO

District of Columbia, ss:

Willis A. Carto, being duly sworn

deposes and says that:

I am the treasurer of Liberty Lobby,

Inc., the plaintiff in the above-

entitled case.

I make this affidavit in support of

a motion to recuse Honorable Thomas

Penfield Jackson as the presiding and

am ala

-221-

determining officer in the motion for

sanctions filed by the defendants

against Liberty Lobby, Inc., Mark Lane,

Esq. and Fleming Lee, Esq. This effort

is not made on behalf of Fleming Lee,

Esq. who, as I understand it, is repre-

senting himself.

Background

The following paragraphs are pre-

sented regarding the background informa-

tion which led me to conduct a cursory

examination as to the possible relation-

ship between Leonard Garment, Esq., his

wife, Suzanne Garment, and Judge

Jackson. This is not an academic appli-

cation because I fear that the facts may

prevent a fair and impartial considera-

tion, but it is based upon what appears

to me to be biased and unfair decisions

in the courtroom which have led me to

-222-

try to understand why such actions took

place. It is my understanding that

hostility or animus in the courtroom or

even what one party believes to be

unfair treatment by a judge may not form

the basis for a formal motion for re-

cusal. The background material pre-

sented below is not offered to demon-

strate that Judge Jackson should be

recused because of his conduct in the

courtroom, but rather explains why I was

constrained to look into Judge Jackson's

possible connections with central

figures in this case and why I did not

at the very outset make this motion.

This application is, however,

neither based solely upon Judge

Jackson's conduct in the courtroom, nor

solely upon his possible connections

with figures in this case, but is based

ex

-223-

upon combination of these factors

which lead me to believe that the par-

tial and bias conduct of Judge Jackson

set forth in summary in this portion of

the affidavit entitled background can be

explained by Judge Jackson's possible

connections with a figure or figures in

this case.

For some years Mark Lane, Esq., who

is not the general counsel of Liberty

Lobby, Inc., and who has never served in

that capacity, has provided legal repre-

sentation in some cases in which Liberty

Lobby, Inc. has been involved either as

a plaintiff or a defendant. I have had

an opportunity to observe the relation-

ship between Mr. Lane and members of the

federal judiciary, including various

judges in the United States District

Court in Washington, D.C., ina trial

a

-224-

before a United States District Court in

Miami, Florida, and arguments before the

United States Court of Appeals for the

District of Columbia, and the United

States Supreme Court. My observations

have included an examination of the

transcript of such proceedings and my

personal observation while the hearing,

trial or argument was taking place.

Although a number of the cases were

of a highly controversial nature and

some were charged with emotional issues,

I have observed a mutually respectful

exchange between Mr. Lane and the vari-

ous judges and justices.

In reading the transcript of hear-

ings before Judge Jackson in the instant

case I was struck and alarmed by the

tenor, tone and sharp and threatening

language directed to Mr. Lane by Judge

|

-225-

Jackson when the record revealed no

apparent provocation. The specifics of

these remarks I will address below.

Based upon my concern for the right

of Liberty Lobby, Inc. to secure a fair

hearing before Judge Jackson, I inter-

viewed Mr. Lane. Some of the ailega-

tions made by Judge Jackson to and about

Mr. Lane I knew to be without any

foundation in fact. For example, Judge

Jackson stated on February 27, 1986 that:

Yes. The flavor that I get of this

entire deposition is that it was

largely conducted by you [Mr. Lane]

out of pique at the way in which you

feel that Ms. Garment characterized

your performance in another trial.

(Hearing Transcript,

February 27, 1986, pp.

21-22, Emphasis Added)

Two assertions by the Court in that one

sentence deeply concerned and troubled

me. The record revealed without ques-

tion that the Garment deposition had not

-226-

been filed with the Court. (Hearing

Transcript, February 27, 1986, p. 37)

Therefore, Judge Jackson could not know

through ordinary process what the entire

deposition revealed. Of greater concern

to me was the allegation that it was Mr.

Lane, not Liberty Lobby, Inc., who was

concerned about the defamatory article

written by Ms. Garment about Liberty

Lobby. Mr. Lane was not at liberty to

breach an attorney-client privilege when

he appeared before the Court and thus

was prevented from adequately defending

himself against the charge made by the

Court.

These are the facts. After the

article by Ms. Garment was published in

The Wall Street Journal, at my initia-

tive I discussed the matter with Mr.

Lane. I was concerned that the article

eee |

-227-

republished the previously published

defamation in the midst of pretrial

preparations in this case and that the

article was clearly designed to im-

properly assist National Review, Inc. in

a trial then taking place in the United

States District Court. Subsequently we

discovered that the attorney for

National Review, Inc. was responsible

for the publication of the article

entirely hostile to Liberty Lobby, Inc.

which was in fact published by The Wall

Street Journal during the second day of

the trial between Liberty Lobby, Inc.

and National Review, Inc.

The jury was comprised entirely of

black residents of the District of

Columbia. The allegation that Liberty

Lobby, Inc. was a racist organization

seeking to manipulate or hypnotize black

-228-

jurors was clearly intended to interfere

with the course of justice in that case,

in my view. Consequently, I discussed

the matter with Mr. Lane. i was con-

cerned that if we ignored the republica-

tion of the original defamation and the

entirely false statements made about

Liberty Lobby, Inc. by Ms. Garment, that

Liberty Lobby, Inc. might in some

fashion be weakening its case against

Dow Jones & Co., Inc. I knew the alle-

gation by Ms. Garment which implied that

Liberty Lobby, Inc. sought an all black

jury was entirely false since I had

participated at the counsel table in the

selection of jurors and since as I

recall, the white prospective jurors

were challenged by National Review, Inc.

While I was deeply concerned about

the

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