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March 5, 1986

VICTOR LASKY, Plaintiff,

Walker, United States District Judge.

The opinion of the court was delivered by: WALKER




 The defendant in this libel action has moved for summary judgment pursuant to Fed. R. Civ. P. 56 on the sole ground that the plaintiff in his complaint has formulated a "strained and out-of-context interpretation of the ABC broadcast . . ." that is the subject of this action. *fn1" In essence, the defendant brings this motion on the same basis as an unsuccessful prior motion before Judge Lowe of this court under Fed. R. Civ. P. 12(b)(6) namely, that the complaint fails to state a claim upon which relief can be granted since the broadcast attributed to it by the plaintiff is not capable of a defamatory meaning.

 This court is not bound by Judge Lowe's prior decision. The law of the case doctrine is a discretionary doctrine which "does not constitute a limitation on the court's power but merely expresses the general practice of refusing to reopen what has been decided." United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982) (quoting Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134-136 (2d Cir. 1956)). Thus, this court is free to ignore the previous ruling. Nonetheless, the end results of both motions are the same since this court, like Judge Lowe, holds that on its face the broadcast is capable of a defamatory meaning and that dismissal of the complaint is therefore unwarranted at this time.


 On June 23, 1983, the defendant, American Broadcasting Companies, Inc. aired a one hour ABC News "Closeup" documentary entitled "The American Inquisition" which focused on the stories of two Americans caught up in the McCarthy era of the 1950's ("program" or "broadcast"). At the outset of the broadcast, the commentator, Marshall Frady, briefly described the McCarthy era and the nature of the program. He stated that the threat of Soviet Communism

"set loose a national season of fear. Congressional hearings, spy trials, loyalty checks in companies, including broadcast networks, purges Hollywood [sic] and on campuses. Before it was over with, it left over America a wake of ruined lives. Tonight we'll return into that time, through the personal stories of two private citizens among the thousands of ordinary Americans also caught up in the McCarthy terror across the country. . . . Fear of them [American Communists] spread, to engulf many citizens who were punished for their associations, for what they spoke, for what they thought, for their political stands." *fn2"

 The first segment of the program focused on the story of Paul McCarty who was fired from his job after being wrongly accused of close involvement with Communists by two anonymous FBI informers. These accusations followed him from job to job and caused subsequent firings. McCarty stated that he "had no way of calling these informants to find out what they accused me of, or why, or anything about it." His former attorney, Theodore Jacobs, commented on the use of informants and what happened to McCarty: "It was basically the period of the bully, the big guy taking advantage of a small guy. And the little guy just didn't know very often what was happening to him. In this case he was overtaken by forces that he had no way of grappling with. He was a pretty simple man swept up in a political climate that he never dreamed of." The viewer could interpret the cause of McCarty's plight as either the hysteria of the times or the anonymous informant, the bully, who was able to wield great power in the political climate of the 1950's.

 The second segment of the program and the subject of plaintiff's action related to the plight of Luella Mundel, an art teacher at Fairmont College in Fairmont, West Virginia. Frady introduced the second segment of the program, as follows:

FRADY: (voice over): The fear during the McCarthy era was of an alien conspiracy to overthrow our way of life. But that fear about Communism ranged beyond the politically suspect, became a campaign against all that seemed different, dangerous to Main Street America. This is the story of what McCarthyism did to the small town of Fairmont, West Virginia. In 1951 Luella Mundel was brought in to head the art department of the local state college. She was not a political activist, but had tastes, convictions about art, about religion, unfamiliar to these streets. And at a local American Legion seminar about subversives, she angrily stood to challenge what was being preached there. Her contract was dropped by the college. A state education official accused her of being a poor security risk. She then sued for slander, but in the trial that followed in Fairmont's courtroom, it was Luella Mundel and her right to speak freely, to be different, that wound up being tried.

 This segment, like the McCarty segment, is divided into a number of audio and visual bites juxtaposed in a manner to tell a coherent story. A number of individuals made comments in these bites in response to interview questions, by reading from a prepared script, or through recordings, simulated or real, of their past remarks made during the 1950's. This cast of characters included: narrator Frady, Luella Mundel; Helen Whitney, the program's producer and the on-air interviewer; William Manchester, an historian who as a journalist in 1951 attended the Mundel trial in Fairmont; George and Madeline Hand, the former president of Fairmont College and his wife; Senator Joseph McCarthy; Newton Michael, Dominic Romino and Roderick Devison, three American Legionnaires in Fairmont; Senator Mansfield Neely, the defendant's attorney in the Mundel trial; Horace Meldahl, Mundel's attorney at the trial; Rev. Graham Luckenbill, a minister in Fairmont and observer of the Mundel trial; Samuel Cover and William Leeper, two jurors at the Mundel trial; Jeanne Barnitz, a friend of Mundel's in Fairmont; and Victor Lasky, reporter, syndicated columnist, lecturer, author and the plaintiff in this action.

 Following Frady's introduction, the program continued with a brief sequence quoting parts of Meldahl's direct examination of Mundel at the slander trial, in which among other things she denied that the was a communist. The following exchange then took place:

Ms. MUNDEL (1983, in the Fairmont courtroom: voice-over): I can't remember much about Fairmont. I remember the courtroom. Bad vibes.
Ms. WHITNEY: Coming back here today, wasn't easy, was it?
Ms. MUNDEL: No, it's very unpleasant. It's an ordeal. My name is Luella Mundel and I was in this courtroom about 30 years ago, I had been accused of being a security risk and an atheist by the president of the school board, and as a result I lost my job. And so I decided to sue the president of the school board for slander. I didn't realize that the person who brought the suit would be the one who was on trial.

 There then followed a series of recollections by a number of individuals. Historian William Manchester spoke about how "people were frightened [in 1951] and . . . were looking for scapegoats . . . and the person who is different, the individualist, is always vulnerable in scapegoating time." Madeleine Hand recalled Mundel's special vulnerability at that time because "she had different ideas than the people in the community" and because "she did not hesitate to express her views. . . ." Hand then stated that "it was so easy during that period to label anyone with different ideas a Communist. Just call them a Communist - it took in everything." George Hand stated that he hired Mundel to chair the art department because she was highly qualified. Madeleine Hand then recalled that

it was Joe McCarthy's speech in Wheeling, West Virginia . . . that set the stage for much that happened, all that happened later. And I think the thing that really started this hysteria was his waving this paper in his hand and saying "I hold here in my hand this list of subversive people." And it terrified people, it really did. . . . This to me was the beginning. And we wondered how long it would be before Fairmont would be part of his hysteria, and it wasn't long. . . . It was a terrible period waiting for the ax to fall. All of us had this sense of foreboding that it would soon envelop all of our lives, and it did, with this first anti-subversive meeting that was sponsored by the American Legion in Fairmont.

 Two American Legionnaires, then recalled the anticommunist seminars held in those years and about how the American Legion would "bring guests in such as Mr. Lasky and other guests, and when they didn't have a guest, there were enough people here to talk about the subversives running around in our schools, and that they're teaching our kids foreign ideologies, and all of this put together is nibbling away at the moral fiber of America.. . . They get people fired up to where they're just stomping [and asking] 'where are these guys that we're mad at?'"

 The next person to appear on the program was Victor Lasky. Lasky, Mundel and American Legionnaire Newton Michael recalled what occurred in 1951 at one of these American Legion seminars as follows:

VICTOR LASKY, journalist: Well, I gave my usual talk about the danger of Communist infiltration. I also took the approach that we could not get hysterical about this problem, that while there are witches, we should not engage in witch hunts. But I conceded there were witches.
Ms. MUNDEL: When I got there I thought some of the remarks were asinine. For instance, some speaker referred to The New York Times as a pink sheet. I thought that was absurd and I think I said so. There were a number of other comments that were made that I think I challenged.
Mr. LASKY: All I know is that an hysterical woman got up and began to assail me or - and the rest of the speakers. And I had to respond to try to calm her down. If anything I was a calming influence. Believe me, she was hysterical.
NEWTON MICHAEL, American Legionnaire: As I recall, Mr. Lasky called her a Communist. This seemed to agitate her very much, and she called him a Nazi. And with that he became very, ...

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