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PEP v. NEWSWEEK

January 5, 1983

WILLIE PEP, Plaintiff,
v.
NEWSWEEK, INC., Defendant



The opinion of the court was delivered by: LASKER

LASKER, D.J.

 This action for libel arises from the publication of an article entitled "The Fix", in the July 30, 1980 issue of Inside Sports, a magazine then published by Newsweek, Inc. The author of the article was Paul Good, a freelance journalist; the editor was Peter Bonventre, Inside Sports ' Managing Editor.

 The article infers that Willie Pep, a former championship boxer, "fixed" a fight held on February 26, 1954. *fn1" Good's primary source for the article was one Norman Brett, who purports to have had personal knowledge of "the fix," based on his close companionship with Pep during the relevant periods and his own attempted participation in the planning of the transaction.

 Newsweek moves pursuant to Fed. R. Civ. Pr. 56 for summary judgment on the question of actual malice: it contends that there is no genuine issue of fact as to the question whether the article was published with knowledge of its falsity or reckless disregard for its truth or falsity.

 Pep answers that Newsweek's major source, Norman Brett, was a convicted felon, a swindler and a self-described "pathological liar" and that Newsweek was aware of his character and his criminal record at the time that it relied upon him as the principal source for the article. Newsweek's failure to obtain independent corroboration of a story based on the word of a man of Brett's character, Pep argues, at the least creates a question of fact as to whether Newsweek published the article with reckless disregard for its truth or falsity.

 Newsweek concedes that Brett "has not lead a blameless life." (Newsweek Memorandum of Law at 53). In fact, in its 3(g) statement, Newsweek candidly refers to Brett as having formerly been a "compulsive gambler, a vice which he has admitted led him into a series of unethical and illegal acts" and quotes Brett as having referred to himself as a "pathological liar." (Newsweek's Statement of Material Facts, para. 30). However, Newsweek contends that Brett presented himself to Good and Bonventre as a man who, thanks to his participation in Gamblers Anonymous, had changed his ways, and that Good and Bonventre, after thoroughly interviewing Brett, found him worthy of belief. Moreover, Newsweek contends that it did some independent corroboration of the story by reviewing contemporary news clippings, and that further attempts at corroboration would have been futile. Finally, Newsweek contends that it was entitled to rely entirely on Good, a well-respected author and a former Newsweek employee who had known Bonventre personally since they had shared an office together in 1971 or 1972.

 * * * * * *

 A defamation plaintiff who is a public figure has the heavy burden of proving actual malice with "convincing clarity." Yiamouyiannis v. Consumers Union, 619 F.2d 932, 940 (2d Cir. 1980). Although we are aware of the scores of cases in which summary judgment has been granted on the question of actual malice, we note that, under Yiamouyiannis, supra, a motion for summary judgment in a libel action is to be treated no differently than a motion for summary judgment in any other action. Id. The standard for deciding summary judgment in such a case is as follows:

 
"In a case where the defendant has moved for summary judgment on the issue of actual malice and the plaintiff claims that there remain material factual disputes, the court decides the materiality of the disputed facts by accepting the plaintiff's version and applying the actual malice standard. This standard requires a clear and convincing showing, which may be by circumstantial evidence, of defendant's actual state of mind -- either subjective awareness of probable falsity or actual intent to publish falsely."

 Yiamouyiannis, supra at 940.

 The actual malice standard is subjective: accordingly, the question presented here is whether a reasonable jury could find with convincing clarity that Newsweek employees "in fact entertained serious doubts as to the truth of [the] publication." St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968).

 In St. Amant, the Court listed a number of factors relevant to the determination of recklessness. Among others, it stated, "recklessness may be found where there are obvious reasons to doubt the veracity of the informant." Id. at 732. We conclude that, in the circumstances of this case, there were "obvious reasons to doubt the veracity" of Norman Brett, and that, accordingly, a reasonable jury could find that Newsweek employees "in fact entertained serious doubts as to the truth of [the] publication." St. Amant, supra, at 731.

 Bonventre stated that at the time he met with Brett in connection with the article, which was then in a preliminary stage of preparation, he had been advised that Brett was a convicted felon, "a swindler," and "a con man." (Deposition of Peter Bonventre at 24). Yet, aside from reading some newspaper clippings concerning the fight and accepting Good's word that Brett was "reliable," Bonventre made no attempt to corroborate Brett's account of the story. (Id. at 23-24). Moreover, with respect to Bonventre's reliance on Good's appraisal of Brett, when Good was asked whether Bonventre has asked for "a professional assessment of [Brett's] reliability," Good's answer was limited as follows:

 
"Well, first of all, Mr. Bonventre, when he first discussed this, asked me what I thought about Brett, what did I know about him, could I depend on him, ...

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