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December 27, 1966

Barry M. GOLDWATER, Plaintiff,
Ralph GINZBURG, Warren Boroson and Fact Magazine, Inc., Defendants

Wyatt, District Judge.

The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by defendants for summary judgment in their favor. Fed.R.Civ.P. 56. The action is one for libel and plaintiff has demanded jury trial. The complaint prays for one million dollars as compensatory damages and another one million dollars as punitive damages.

 Defendants contend that application of the principle announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) requires that they have summary judgment. That principle is as follows (376 U.S. at 279-280, 84 S. Ct. at 726):

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

 Three of the Justices (Black, Douglas, and Goldberg, JJ.) believed that statements about the official conduct of a public official were absolutely privileged, actual malice or no.

 Plaintiff is a citizen of Arizona; defendants Ginzburg and Boroson are citizens of New York; defendant Fact Magazine, Inc. is a New York corporation with its principal place of business here. Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332.

 The complaint avers that beginning in 1953 plaintiff was a United States Senator from Arizona and that in July 1964 he became a nominee for the office of President of the United States at the election held on November 3, 1964; that defendants published an issue of Fact Magazine about October 1, 1964 which was described as "A Special Issue on the Mind of Barry Goldwater"; and that a copy of this "special issue" is annexed to the complaint. These averments are admitted.

 The complaint avers that Fact Magazine contained many false and defamatory statements about plaintiff. The magazine is divided into two sections. The first (pp. 3-22) consists of an article entitled "Goldwater: The Man and the Menace". The second (pp. 24-64) is entitled " What Psychiatrists Say About Goldwater" and consists of replies, excerpts from replies, and in some cases paraphrases of replies to a questionnaire sent by defendants to 12,356 psychiatrists throughout the United States, most of whom did not respond. Preceding this collection of responses is a three paragraph description of how and in what number the responses were obtained. Printed on the back cover under the heading "What Psychiatrists Say About Goldwater:" are certain quotes taken from some of the replies printed within.

 Plaintiff avers that many statements in the replies and in the article are false and defamatory. Examples of such statements are: that plaintiff is "mentally unbalanced", a "dangerous lunatic", a "coward", has had "nervous breakdowns", has "paranoia", is a "compensated schizophrenic", has "a chronic psychosis", etc., etc. The magazine appears to state in substance that plaintiff suffers from a mental illness which renders him unfit to be President.

 The complaint avers that the alleged defamatory statements were made with "actual malice, with knowledge that such statements were false or with reckless disregard of whether such statements were false or not. * * *"

 The answer denies that any statements in the magazine are false or defamatory and denies actual malice. The answer also sets out the affirmative defenses of truth, fair comment, and privilege based on the fact that plaintiff was a United States Senator and a candidate for the Presidency at the time the magazine was published and that it was published without actual malice.

 Plaintiff has taken the depositions of defendants and of four of the psychiatrists whose statements were published in the magazine. Defendants have taken the deposition of plaintiff.

 The motion for summary judgment is supported by the affidavits of defendants Ginzburg and Boroson who say that they were responsible for the publication, that they honestly believed in the truth of all statements of fact, and that they honestly held all opinions expressed. They say that they acted in good faith and published the magazine in the national interest to promote consideration of "crucial issues" in the Presidential campaign. In short, they deny any actual malice.

 The opposition to the motion is based on the depositions taken by plaintiff and on documents obtained by discovery. Plaintiff contends that in this material is evidence of actual malice on the part of defendants and that there is ...

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