The opinion of the court was delivered by: LEVET
I. BACKGROUND OF THIS MOTION
This is a motion by defendant Esquire, Inc. ("Esquire") for summary judgment dismissing a complaint of plaintiff William F. Buckley, Jr. for libel.
Plaintiff seeks $1,000,000 damages based on an allegedly libelous and defamatory article written by Gore Vidal which was published in the September 1969 issue of Esquire magazine and republished in December 1969 in an anthology of Esquire articles entitled "Smiling Through the Apocalypse." The complaint in this action was filed on August 13, 1969 and was based solely on the September 1969 Esquire article.
Plaintiff served an amended and supplemental complaint on January 5, 1970 based on both the September 1969 Esquire article and the anthology republication in December 1969. On January 20, 1970 defendant Esquire filed its answer to the amended complaint.
On March 22, 1971 Esquire filed a motion for summary judgment in this action. However, in April, 1971 plaintiff's counsel advised counsel for Esquire that it wished to take further pretrial discovery. Counsel for Esquire then agreed to withdraw the motion for summary judgment until plaintiff's discovery was completed. A stipulation to that effect was entered on May 4, 1971.
On March 13, 1972 counsel for plaintiff advised counsel for Esquire that plaintiff's discovery was completed. Esquire now renews its motion for summary judgment.
II. THE NEW YORK TIMES v. SULLIVAN DOCTRINE
(See Answer: First, Second and Third Defenses)
Defendant contends that the alleged libel stated in the complaint is protected by the doctrine of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) and its progeny. This is without foundation.
The rule of the Sullivan case seems to be as follows:
"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. . . ." New York Times v. Sullivan, supra, at 279-280, 84 S. Ct. at 726.
A court ruling on motions in a defamation suit in which the defendant "asserts the New York Times privilege is compelled to make the dual inquiry (1) whether the plaintiff is a public figure and (2) whether the alleged defamatory publication is directed towards his public conduct." Belli ...