quotes John as stating that it is an "outrage" that the Arabs are still in Hebron.
The next paragraph is a transition to the rest of the article and states: "Settlers like the Chaikens have turned the more than 114 settlements that now dot the West Bank into hothouses for the growth of terrorism." Friedman writes that the Israeli authorities have recently uncovered six different Jewish undergrounds responsible for terrorist bombings and murders of Arabs across the West Bank. Most of these terrorist groups are affiliated with the Gush Emunim settlers movement and the Kach Party and continue to enjoy widespread support from Israeli society. Towards the end of the paragraph, an expert on West Bank affairs states "one day the settlers who support Gush Emunim or Kahane will commit an atrocity so grave that it will imperil Jews everywhere."
The article then goes on to describe various Israeli terrorist groups and profiles West Bank settlers who are involved in terrorist activities. The settlers' attempts to bomb and kill Arab residents and officials are recounted in detail. In addition, a separate article ("The American Connection"), also written by Friedman, details the American-Jewish support for organizations like Gush Emunim and the Kach Party.
C. The Chaikens' Response
The Chaikens contend that the Voice article is replete with misrepresentations and falsehoods. On a motion for summary judgment, I assume the Chaikens' version of the events is accurate. Specifically, John claims that his comments about "Western European values" and Jews becoming the "spiritual bosses" of the world were taken out of context in order to make him appear as a "vile, crude, person."
Affidavit of Marilyn Chaiken, dated January 3, 1993 ("M.Chaiken Aff."), at Ex. 2 (letter from John Chaiken). John also states that Friedman's version of the ritual haircut at the Mosque was substantially changed: the mosque was located on a spot holy to the Jewish people, the settlers waited until Arab prayers had finished, the Jewish contingent was made up of mostly women and children, and no one spit watermelon seeds onto the floor of the mosque. Id. Similarly, Marilyn claims that she never made the statements about the massacred settlers or slapped the Arab child in the Hebron marketplace. See M.Chaiken Aff. at PP 5-6. Finally, the Chaikens dispute the racist views attributed to them and contend that they have not turned the West Bank settlements into "hothouses for the growth of terrorism." M.Chaiken Aff. at Ex. 1.
Plaintiffs filed their Complaint in November, 1988. Plaintiffs allege that the Voice article defames them by attributing to them "criminal, vile, crude acts, and other acts holding them up to contempt and hatred." Complaint at P 6. Although it is nowhere stated that the Plaintiffs are terrorists or have engaged in terrorist activity, Plaintiffs also claim that the article implies they "were terrorists and supporters of terrorists and committed assault and battery, trespass and other unjustifiable violence against others and had used unseemly, obscene language, desecrated a Moslem place of worship and otherwise held the Plaintiffs up to ridicule, contempt, and hatred. . ." Id. at P 8. As a result of the article, the Chaikens further allege that they suffered emotional distress and humiliation and were investigated by the Israeli police. Id. at P 7.
In an Amendment to the Complaint, the Chaikens allege that the brunt of their injuries occurred in Massachusetts. On June 24, 1988, John Chaiken was stabbed in the Hebron marketplace by an Arab. The incident received coverage in the Israeli and American press. John later wrote an editorial detailing how the Arab who stabbed him had been trying to kill a settler for days. See Affidavit of E. McNamara, Counsel for Defendant, dated December 23, 1994 ("McNamara Aff."), at Ex. 30. The Chaikens amended their Complaint on December 18, 1992 to allege that this incident resulted from the Voice article, and that John's death in 1991 was hastened by the injuries he received in the attack.
I. Summary Judgment in Defamation Cases
Federal Rule of Civil Procedure 56(c) provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. . .show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The non-moving party may defeat a summary judgment motion by producing or pointing to sufficient specific facts to establish that there is a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). While a court must view the inferences to be drawn from the facts in the light most favorable to the non-moving party, see Matsushita Elec. Indust. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), "mere speculation or conjecture as to the true nature of the facts" will not overcome a motion for summary judgment. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987); see also Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (mere conclusory allegations or denials in legal memoranda or oral argument cannot create a genuine issue of material fact).
In the context of a defamation claim brought under New York law
, courts have not hesitated to grant or affirm grants of summary judgment when no genuine issue of material fact exists. See, e.g., Naantaanbuu v. Abernathy, 816 F. Supp. 218 (S.D.N.Y. 1993); Nelson v. Globe International, Inc., 626 F. Supp. 969 (S.D.N.Y. 1986); Weiner v. Doubleday & Co., 74 N.Y.2d 586, 550 N.Y.S.2d 251, 549 N.E.2d 453 (1989), cert. denied, 495 U.S. 930, 109 L. Ed. 2d 498, 110 S. Ct. 2168 (1990); Gaeta v. New York News, Inc., 62 N.Y.2d 340, 477 N.Y.S.2d 82, 465 N.E.2d 802 (1984). Indeed, the New York Court of Appeals has stated that courts
must not be reluctant to apply the ordinary rules governing summary judgment in libel cases. . .since 'the threat of being put to a defense of a lawsuit. . .may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself.'
Karaduman v. Newsday, 51 N.Y.2d 531, 543, 435 N.Y.S.2d 556, 416 N.E.2d 557 (1980) (citations omitted); Immuno AG v. J. Moor-Jankowski, 77 N.Y.2d 235, 256, 566 N.Y.S.2d 906, 567 N.E.2d 1270 (reaffirming Court of Appeals regard for summary judgment in libel cases), cert. denied, 500 U.S. 954, 114 L. Ed. 2d 713, 111 S. Ct. 2261 (1991). With these standards in mind, I turn to the Chaikens' claims.
II. Defamation under New York Law
In order to make out a libel claim under New York law, a plaintiff must show that the defendant published to a third party i) a false and defamatory statement ii) which was "of and concerning" the plaintiff iii) with the requisite degree of fault -- the degree of which depends on the status of the libelled party and the subject matter of the statement and iv) special harm or per se actionability. See Cardone v. Empire Blue Cross and Blue Shield, 884 F. Supp. 838 (S.D.N.Y. 1995); Church of Scientology Int'l v. Eli Lilly & Co., 778 F. Supp. 661, 666 (S.D.N.Y. 1991); see generally Restatement (Second) of Torts, § 558 at 155 (1964). The parties do not dispute that the alleged defamatory statements were published to a third party. However, I need not reach the first, second, or fourth elements of the Chaikens' defamation claims because I find that, even assuming the Chaikens' version of the article is correct, no fact issues exist regarding the Voice's culpability in publishing that article.
In the seminal case of Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975), the New York Court of Appeals held that
where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover; however, to warrant such recovery he must establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.
Thus, a twofold inquiry is required in applying the Chapadeau standard: first, do the defamatory statements in the Voice article deal with a matter of public concern?; if they do, have the Chaikens raised a triable issue of fact as to the Voice's gross irresponsibility in publishing the defamatory statements in that article?
i. A Matter of Public Concern
In determining whether defamatory statements are "reasonably related to matters warranting public exposition," a court should normally defer to the judgment of editors and journalists; "while not conclusive, 'a commercial enterprise's allocation of its resources to specific matters and its editorial determination of what is newsworthy, may be powerful evidence of the hold those subjects have on the public's attention.'" Gaeta, 62 N.Y.2d at 349 (citation and some internal quotations omitted). Thus, a court should not second guess editorial judgments as to what constitutes a matter of public concern "absent clear abuse." Weiner, 74 N.Y.2d at 595; Gaeta, 62 N.Y.2d at 349 ("Editorial judgments will not be second-guessed so long as they are sustainable."). In addition, defamatory statements must be viewed in the context of the article in which they appear, and not "as disembodied words, phrases, or sentences." Gaeta, 62 N.Y.2d at 349.
Under these standards, the Voice article undeniably relates to a matter of public concern. The article details the actions of Jewish West Bank settlers who have planned and carried out attacks on their Arab neighbors. Terrorist activity is certainly a matter of public concern, especially where many of the settlers are U.S. emigres and where U.S.-based financial support is described as important to groups such as Gush Emunim and the Kach Party. Most importantly, all of the statements relating to the Chaikens must be viewed in the context of the article as a whole. The Chaikens' views about Arabs, the Jews unquestioned right to the land, and their experiences on the West Bank are intended to portray the ideology fueling the growth of Jewish terrorism. As such, the references to the Chaikens in the article are also matters of public concern. See Gaeta, 62 N.Y.2d at 350 (statements about the experience of one mental patient in an article dealing with the transfer of 5,000 patients in mental hospitals to nursing homes relates to a matter of public concern).
ii. Evidence of Gross Irresponsibility
A wide variety of factors may be used to determine if a statement was published "without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Chapadeau, 38 N.Y.2d at 199. These factors may include:
whether sound journalistic practices were followed in preparing the defamatory article. . ., whether normal procedures were followed and whether an editor reviewed the copy. . ., whether there was any reason to doubt the accuracy of the source relied upon so as to produce a duty to make further inquiry to verify the information. . ., and whether the truth was easily accessible. . .