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MCMANUS v. DOUBLEDAY & CO.

May 28, 1981

Sean McMANUS, Plaintiff,
v.
DOUBLEDAY & COMPANY, INC., Russell Warren Howe and Sarah Hays Trott, Defendants



The opinion of the court was delivered by: WEINFELD

Plaintiff, Father Sean McManus, a Roman Catholic priest of the Redemptorist Order in Baltimore, Maryland, commenced this action against the defendants Russell Warren Howe and Sarah Hays Trott, the authors of a nonfictional book entitled "The Power Peddlers," and Doubleday & Company, Inc., the publisher, charging them with libel. The book, published in February 1977, is an investigative report of foreign lobbies and lobbyists, and the influence they wield over American foreign policy. The alleged libel appears on page 391 of the book, in the midst of a subchapter on the Irish lobby. It consists of a single statement that "Father McManus' Irish Embassy file bears the mention "homicidal tendencies.' " Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion must be denied as to the author of the statement in question, defendant Howe, but granted as to his co-author and publisher, defendants Trott and Doubleday.

A threshold issue is whether the attribution of "homicidal tendencies" to plaintiff is a statement of fact or opinion. On this motion, the issue is for the Court to resolve. *fn1" Expressions of one's opinion of another, however unreasonable or vituperative, since they cannot be subjected to the test of truth or falsity, cannot be held libelous and thus are entitled to absolute immunity from liability under the First Amendment. *fn2" On the other hand, misstatements of fact, when made with actual malice, are unprotected by the Constitution. Defendants contend that the attribution "homicidal tendencies" is mere epithet or hyperbole and thus entitled to absolute immunity as an expression of opinion. *fn3"

 However, the contention that a statement is an "opinion" and not a "fact" must be examined against the background of the circumstances under which it was used by the author. Defendant Howe was the author of the statement in question. The essence of the defendants' position is that Howe was reporting factual information which had been conveyed orally to him by an official of the Irish Embassy whom he had interviewed during the course of his investigative reporting to obtain material for inclusion in the book. It is now undisputed that at no time was Howe shown, nor did he see, any card containing a notation that plaintiff had "homicidal tendencies" and indeed it is conceded that the index card bears no such notation. Opinions based on false facts are actionable against one who had knowledge of the falsity or probable falsity of the underlying facts. *fn4"

 Moreover, the Irish subchapter in which the allegedly libelous statement is contained indicates that it would be entirely reasonable for a jury to take the words "homicidal tendencies" in their literal rather than hyperbolic sense. The subchapter focuses on lobbyists in America connected with or sympathetic to the Provisional Irish Republican Army ("IRA"), one of the more provocative of the various factions seeking independence from British rule for Northern Ireland. The subchapter is replete with references to violence, gun-running, and assorted other criminal acts. There is no claim that these are anything but factual assertions. Indeed, the very sentence that contains the allegedly libelous statement also refers to plaintiff's brother who died in the IRA. Clearly, real violence is a substantial focus of the subchapter, and it would not be unreasonable for an average reader to take the "homicidal tendencies" statement in the same light.

 In attempting to counter this conclusion, defendants point to a statement two pages earlier in the book reporting that the Irish Embassy's file card on another IRA supporter labels him as "rabid." Defendants contend that just as no reasonable reader would infer from this statement that the individual referred to literally had been bitten by a rabid animal, so, too, no such reader would understand the phrase "homicidal tendencies" to attribute characteristics to plaintiff that would render him unfit to continue in his calling as a priest, that would impute insanity or impairment of his mental faculties or that would imply he had murderous proclivities against those opposed to his views or to those of the group with which he was affiliated. However, while a literal reference to rabies would be out of place in an article on supporters of violence in Northern Ireland, a literal reference to homicide would not be. Thus while the former statement might be hyperbole or epithet, the latter statement, in this context, reasonably could be viewed as a statement of fact.

 Defendants also argue that the fact the phrase "homicidal tendencies" appears in quotation marks in the relevant sentence stresses its hyperbolic meaning and renders a literal interpretation unreasonable. However, since the sentence in which the phrase appears claims to be quoting plaintiff's Irish Embassy file card, the quotation marks could reasonably be understood to imply simply that the file card contains the words quoted. The average reader need draw no inference at all from the quotation marks that the phrase was meant only rhetorically. Accordingly, for the purposes of this motion, the phrase in question must be viewed as a statement of fact. Taking the phrase literally, as a jury reasonably could do, it charges plaintiff with the proclivity to engage in homicidal acts. This factual component of the charge precludes finding it a mere expression of opinion: "When an (alleged) "opinion' is more than a derogatory comment but is laden with factual content, such as charging the commission of serious crimes," the statement is not entitled to the absolute First Amendment immunity accorded expressions of opinion. *fn5" This ground for summary judgment thus must be rejected. *fn6"

 Having determined that the alleged libel can be construed as a statement of fact, the Court next must address whether plaintiff is a public figure or a private person for the purpose of establishing the standard of fault to govern this case. This determination must be made based upon what a reasonable person looking at the entire situation would conclude. *fn7" There is little doubt that plaintiff is a public figure. As outlined in Gertz v. Robert Welch, Inc., *fn8" one type of public figure is "an individual (who) voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." *fn9" This type of "limited-purpose public figure" *fn10" "thrust(s) (himself) to the forefront of (a) particular controversy in order to influence the resolution of the issues involved ... (thereby) invit(ing) attention and comment." *fn11" The affidavits and deposition transcripts submitted indisputedly demonstrate the intensity of the debate over the independence of Northern Ireland, not only in Britain and Ireland but also in the United States, and plaintiff's active involvement in this debate. The Northern Ireland dispute thus clearly is a public controversy. *fn12" Plaintiff is the National Coordinator of the Irish National Caucus, a lobbying organization and umbrella group for numerous Irish-American organizations, and the author of the Position Paper of the Caucus. He is well known in England, Ireland and Irish circles in the United States, for his views on the political conflict in Northern Ireland. He has appeared frequently on radio and television broadcasts and before large audiences throughout the United States to espouse his views on the conflict in Northern Ireland. It thus is evident that plaintiff has injected himself into the public controversy over Northern Ireland and has played a substantial role in that controversy. He thus must be classified as a public figure for the purpose of comment on these activities. *fn13"

 Plaintiff seeks to overcome this conclusion by invoking language in Hutchinson v. Proxmire. *fn14" In Hutchinson, the Supreme Court ruled that a scientist was not a public figure simply because he had applied for and received federal grants to support his research. Among the rationale for the conclusion advanced by the Court was the argument that plaintiff's "activities and public profile (were) much like those of countless members of his profession." *fn15" Plaintiff argues that, likewise, his activities were no different from those of anyone else in his Order who had been assigned to carry out his "civil rights" duties. Plaintiff's argument ignores a crucial distinction between his case and Hutchinson. The Hutchinson plaintiff had not attempted to enter a public controversy until after the libel was directed toward him, *fn16" whereas the plaintiff in this case was actively involved in the debate on Northern Ireland well before publication of the Power Peddlers.

 Moreover, plaintiff's argument fails of its own logic. If, as plaintiff contends, the public figure category must exclude people who have not distinguished themselves from others in their profession, then professions whose members previously have been thought typical public figures would no longer find these persons so classified. From politicians to baseball players to movie stars, libel plaintiffs who by virtue of their activism in public debate, notoriety, or access to channels of rebuttal traditionally have been assumed "all-purpose" or "general" public figures *fn17" suddenly would find themselves exempt from this classification simply because the qualities that made them public figures are shared either equally or to a greater or lesser degree by others in their profession. While the likeness between a plaintiff's activities and those of other members of his profession may be a factor in making the public figure determination, it is only one of several such factors. Members of certain professions are simply more likely than others to enter a public controversy or to have access to means of rebuttal, and thus, despite a similarity to their brethren, will tend more frequently to be found public figures.

 At oral argument, plaintiff also sought to escape public figure status by arguing essentially that his involvement in the Northern Ireland controversy was involuntary since, being from a Catholic community in Northern Ireland, he was simply drawn into it, first in his homeland and later, upon his transfer to Baltimore, in the United States. The argument must fail for two reasons. First, the public figure category as defined in Gertz clearly includes individuals who are "drawn into" a public controversy. *fn18" Second, that plaintiff's involvement in the controversy exceeds that of most of his compatriots belies the view that in any meaningful sense his involvement was involuntary.

 As a public figure, therefore, plaintiff cannot recover for the alleged libel unless he establishes with "convincing clarity" that defendants published it with actual malice, that is, knowledge of falsity or reckless disregard for the truth. *fn19" Reckless disregard for the truth is measured not "by whether a reasonably prudent man would have published or would have investigated before publishing," but by whether defendants "in fact entertained serious doubts as to the truth of (their) publication." *fn20" Only if defendants published the relevant comment with a "high degree of awareness of (its) ... probable falsity" can they be found to have harbored actual malice. *fn21"

 Although for some time it was thought that, given the chilling effect of simply defending a libel suit, summary judgment in cases requiring proof of actual malice would be the rule rather than the exception, *fn22" this view was called into question by Chief Justice Burger's footnote in Hutchinson, which indicated that since proof of actual malice raises the issue of a defendant's state of mind, it does not lend itself readily to summary disposition. *fn23" The Second Circuit has therefore concluded that, rather than favoring summary judgment in libel cases, summary judgment motions are to be treated no differently from such motions in other cases, and that the chilling effect of merely defending a libel suit should be disregarded. *fn24" Upon a summary judgment motion by a defendant, the plaintiff's version of contested facts is to be accepted and then examined in light of the actual malice rule to see if any material facts are in dispute. *fn25" To grant a defendant's summary judgment motion the Court must be able to say that a jury could not reasonably find actual malice with convincing clarity. *fn26"

 In this case, the allegedly libelous statement was based on an interview in July 1975 by defendant Howe with an official of the Irish Embassy in Washington, D.C., whose name has been withheld for his protection. Defendants contend there is no evidence that they knew or entertained serious doubts that the statement in question was false. They allege the affidavits and depositions indicate that the embassy official during the interview was seated at his desk and from time to time would remove an address card from his address file. He would then allegedly read to Howe the name, address and phone number listed on the card and, at times, comment about that individual. Although at first Howe insisted that the official read the words "homicidal tendencies" from the file card on plaintiff, it is now admitted that the card contained no such entry. Rather, he and his co-defendants urge that the official stated plaintiff had "homicidal tendencies" while reading other information from the card and that the mistaken belief that the words "homicidal tendencies" were contained on the card was reasonable and certainly does not evidence reckless disregard for the truth. Moreover, the official in his deposition and in a subsequent affidavit stated that, although his memory of the interview was sketchy, he recalled making the point that many supporters of the Provisional IRA were vicariously involved with the violence in Northern Ireland. He added further that it "would have been consistent with (his) belief" and is "quite likely" that he identified plaintiff as one of those so involved. The official noted that, while he had no clear recollection of the precise words used, it was "possible" that he used the words "homicidal tendencies" in reference to plaintiff. Finally, he agreed that Howe's notes on the interview, which contained the words "homicidal tendencies" in a paragraph on plaintiff, reflected the substance of what was said.

 Plaintiff seeks to raise an issue of actual malice by attacking the credibility of both Howe and the embassy official. Plaintiff notes that during Howe's deposition, in response to a series of questions addressing what the embassy official had read to him from the file card, Howe stated that "My source said, "It says here homicidal tendencies.' " *fn27" Not only does this statement flatly contradict the testimony of the embassy ...


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