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July 31, 1974

Michael MEEROPOL and Robert Meeropol, Plaintiffs,
Louis NIZER et al., Defendants

Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

Defendants Louis Nizer ("Nizer") and Doubleday & Company, Inc. ("Doubleday") have moved for summary judgment pursuant to Rule 56, F.R.Civ.P., dismissing the second count of the complaint in which plaintiffs Michael Meeropol and Robert Meeropol ("the Meeropols") seek $1,000,000 in damages for alleged defamation and invasion of plaintiffs' privacy by reason of statements appearing in the book entitled The Implosion Conspiracy, written by the defendant Nizer and published by the defendant Doubleday. For the reasons stated below, the motion is granted.

 Plaintiffs are the natural children of Julius and Ethel Rosenberg who were executed in June, 1953, following a trial for conspiring to transmit to the Soviet Union information relating to the national defense in violation of 50 U.S.C. ยง 34. The present action arises from the publication of an account of the Rosenberg-Sobell trial ("Rosenberg trial") and subsequent events culminating in the execution of the Rosenbergs. In their complaint, plaintiffs allege that Nizer utilized substantial portions of copyrighted letters written by Ethel and Julius Rosenberg to each other juxtaposed to "false, fictitious, and distorted statements" to "deceive the reader and to impress the public with the authenticity and credibility" of the writings in order to embarrass, humiliate and ridicule both plaintiffs and their parents. Plaintiffs further allege that the defendants have sought to pass off the book as an accurate rendition of the trial and other legal proceedings solely for promotional purposes.

 Apart from the aforementioned allegations that the book fails to depict the legal proceedings of the trial in an accurate and detached manner, the complaint alleges that the defendants sought to portray the interrelationship of the plaintiffs and their parents as "one wherein the parents manipulated the plaintiffs, resulting in the ultimate rejection of and dissociation with their parents by plaintiffs." In this regard, plaintiffs assert that the defendants knew the writings to be false, fictitious and distorted; failed to properly investigate the facts concerning the events they sought to portray; and published the false and fictitious statements in reckless disregard of the truth or falsity of the statements.

 In response to defendants' interrogatories, as revised in this court's order dated January 14, 1974, the plaintiffs have specified 77 pages or passages of the book upon which they have based their claims of libel and invasion of privacy.


 This motion, of course, requires application of the principles enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), extended in Rosenbloom v. Metromedia, 403 U.S. 29, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971), and, most recently, constricted in Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). Defendants have moved for summary judgment on the grounds that no genuine issues of material fact exist and they are entitled to judgment as a matter of law.

 Plaintiffs predictably contend that this motion is not presently ripe for decision because there are issues of fact as to the truth or falsity of specific passages in the book and as to defendants' malicious intent to injure plaintiffs by the falsity of the passages. But, plaintiffs cannot defeat the motion for summary judgment by asserting that there is an issue for the jury as to malice unless they make some showing, of the kind contemplated by the Rules, of facts from which malice may be inferred. Thompson v. Evening Star Newspaper Co., 129 U.S.App.D.C. 299, 394 F.2d 774 (1968). As I view the record, plaintiffs have failed to produce any evidence beyond the mere allegations that defendants published the book with reckless disregard of the falsity of its contents.

 Summary judgment is particularly appropriate at an early stage in cases where claims of libel or invasion of privacy are made against publications dealing with matters of public interest and concern. In recognition of the constitutional privilege of free expression secured by the First and Fourteenth Amendments, the courts in libel actions have recognized the need for affording summary relief to defendants in order to avoid the "chilling effect" on freedom of speech and press. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); Konigsberg v. Time, Inc., 312 F. Supp. 848 (S.D.N.Y.1970); Cerrito v. Time, Inc., 302 F. Supp. 1071 (N.D.Cal.1969), aff'd., 449 F.2d 306 (9th Cir. 1970). Accordingly, the constitutional privilege mandates the granting of a motion for summary judgment as soon as it becomes clear that a plaintiff cannot establish the "actual malice" required for recovery in defamation actions of this nature. *fn1"

 An analysis of a libel claim must commence with the seminal case of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In New York Times, the Supreme Court superimposed constitutional limitations on state libel laws and held that the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments prohibit 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", which the court defined as the publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. 376 U.S. at 279-280, 84 S. Ct. 710, 11 L. Ed. 2d 686. See, also Garrison v. Louisiana, 379 U.S. 64, 75, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964); Miller v. News Syndicate Co., 445 F.2d 356 (2d Cir. 1971).

 A logical extension of the New York Times rule followed three years later in Curtis Publishing Co. v. Butts, and its companion, Associated Press v. Walker, 388 U.S. 130, 162, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). The Court therein concluded that the New York Times test should apply to criticism of "public figures" as well as "public officials". In Curtis and Walker, the Court extended the constitutional privilege to protect defamatory criticism of non-public officials who "are nevertheless intimately involved in the resolution of important public questions, or, by reason of their fame, shape events in areas of concern to society at large." Id., at 164, 87 S. Ct. at 1996.

 In 1971, a plurality of the Court extended the constitutional privilege once again to protect defamatory criticism against private individuals, Rosenbloom v. Metromedia, 403 U.S. 29, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971). Although no more than three Justices joined in any single opinion in Rosenbloom, Mr. Justice White, in a concurring opinion, summarized the concensus of the opinions this way:

"[It] would seem that at least five members of the Court would support each of the following rules:
For public officers and public figures to recover for damage to their reputations for libelous falsehoods, they must prove either knowing or reckless disregard of the truth. All other plaintiffs must prove at least negligent falsehood, but if the publication about them was in an area of ...

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