# Appendix — Liberty Lobby, Inc. v. Dow Jones & Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1887%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 488 U.S. 825 ## Text b j Suprans Court, Va > eITLED ~ 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 + ee = oa a : a x ar ‘ vy we ie, 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 = | wittin 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, a ai@e 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 Eee —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. La [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1887%3A2. Public record. Not legal advice.