The opinion of the court was delivered by: OWEN
Defendant Village Voice, Inc., moves for summary judgment of this libel action brought by plaintiff R. Spencer Oliver. On this motion, I have before me the depositions of the principal participants in the case.
This action arose from an article written in The Village Voice by Ron Rosenbaum, then a staff writer, entitled, "What Were They Hoping to Hear on Larry O'Brien's Phone?" In examining alleged connections between former Democractic Party Chairman Larry O'Brien, billionaire recluse Howard Hughes and the CIA, the article quotes an identified "Watergate investigator" to the effect that plaintiff -- earlier described as the "only other person in the Watergate whose phone is tapped" -- was involved with Howard Hunt and the CIA:
Nevertheless, according to one Watergate investigator, Oliver, Jr.'s position in the affair is more complicated than has been reported.
"Oliver, Jr. was CIA. . . . He was involved in some of the NSA stuff," the investigator told me. "He may have known Hunt through the Agency or met him through his father at Mullen but they were close at one time because back in '70 Hunt had lunch with Bennett and Oliver and the three of them talked about buying into the Mullen Company. . . . But Hunt later became suspicious of Oliver, said something about the circumstances under which he left the CIA. I think he may have decided Oliver was a Communist -- you know Hunt."
Since Hunt was the operational director of the break-in team, it is unlikely that the decision to bug his one-time friend Oliver, Jr., was a "mistake" or an "accident." How it fit into the maze of CIA, CRP, and Howard Hughes connections in the case is still an unanswered question. Could Oliver, Jr. have been gleaning secrets about that nexus from Oliver, Sr. at Mullen and feeding them to O'Brien? Certainly the suspicion must have crossed Hunt's mind.
It is this three paragraph section, midway through the relatively lengthy article, which forms the basis for this action.
The article was based upon an interview Rosenbaum had with Scott Armstrong, then an investigator for the Senate Select Committee on Presidential Campaign Activities (also known as the "Ervin Committee"). Armstrong who was the principal author of the "Hughes-Rebozo Report," a staff study of the alleged Hughes-O'Brien connection, is the "Watergate investigator" referred to in the article. After interviewing Armstrong on a Friday, having brief discussions with other members of the Ervin Committee, and reviewing transcripts of some of the testimony before the Committee, Rosenbaum wrote the article over the weekend and sent it to New York where it was published with only minor grammatical changes.
Plaintiff contends that the statements in question are false -- that he has never been associated with the CIA nor been a friend of Hunt's. And furthermore, he argues, on the basis of the deposition testimony of Armstrong, that while the statements about him attributed in the article to a "Watergate investigator" in fact came from such an investigator, Rosenbaum, the reporter, knew the investigator's source was Hunt, yet omitted that secondary attribution.
On this summary judgment motion, I must resolve all ambiguities and draw all reasonable inferences in plaintiff's favor, placing upon the defendant the burden of demonstrating the absence of any material factual issue genuinely in dispute. Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975); Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969). But I have a special responsibility here to determine if there exists such a genuine dispute because the danger that speech may be chilled by the mere fact of litigation. Guam Fed. of A.F.T. v. Ysrael, 492 F.2d 438 (9th Cir.), cert. denied, 419 U.S. 872, 95 S. Ct. 132, 42 L. Ed. 2d 111 (1974); Meeropol v. Nizer, 381 F. Supp. 29, 32 (S.D.N.Y.1974). Specifically, the court must make a threshold determination, prior to trial, whether there has been a showing of actual malice. Bon Air Hotel v. Time, Inc., 426 F.2d 858, 864 (5th Cir. 1970); Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 424 F.2d 920, 922 (Wright, J. concurring), cert. denied, 398 U.S. 940, 90 S. Ct. 1844, 26 L. Ed. 2d 273 (1970). And in making this determination, the granting of summary judgment may well be the "rule" rather than the "exception". Guitar v. Westinghouse Elec. Corp., 396 F. Supp. 1042, 1053 (S.D.N.Y.1975).
Defendant contends that the statements in question are substantially true, and are not, in any case, defamatory. But the affidavits and depositions submitted establish that there is at least a genuine dispute as to the truth of the statements, and it is arguable, given the current political climate and the sensitive nature of plaintiff's employment, that allegations of CIA involvement are defamatory.
The principal question on this motion, however, is whether there is a genuine issue as to "actual malice." Under the New York Times standard, to be actionable, the libelous statement must have been made with "'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not," and the malice must be established with convincing clarity. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 285-8, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686 (1964). As plaintiff appears to acknowledge, at least implicitly, this standard applies here because, under the Gertz definition, he is a "public figure." Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). Currently, he is Executive Director of the American Council of Young Political Leaders, and of the Association of State Democratic Chairmen; he has held positions on the staff of the late Senator Carl Hayden, and on the Democratic National Committee; and he is a former National President of the Young Democrats Club.
Plaintiff relies principally upon the testimony of Armstrong on his deposition that the statements about plaintiff attributed to a "Watergate investigator" were in fact his (Armstrong's) paraphrases of Hunt's testimony before the Committee. In answer to the question whether he ever told Rosenbaum that Oliver was "in any way connected with the CIA," Armstrong responded that "I informed Mr. Rosenbaum that Mr. Hunt, Mr. Howard Hunt had told the Committee that it was his understanding that Mr. R. Spencer Oliver had been employed by an organization which was financed by the CIA." Similarly, ...