precise meaning of terms such as "actual malice" and "reckless disregard" are elusive, these terms can be given content through an analysis of applicable case law. Given the risk that the ambiguity inherent in these terms may result in discouraging protected speech, "judges, as expositors of the Constitution," have a duty to "independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice.'" Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. at 511.
The Court disagrees with the finding of the Magistrate Judge that the evidence could support a jury finding that The National Herald published the Article with "actual malice." Specifically, the Court finds that Coliniatis has not met his burden of demonstrating that a reasonable fact-finder could find actual malice with "convincing clarity." Herbert v. Lando, 781 F.2d 298, 305 (2d Cir.), cert. denied, 476 U.S. 1182, 91 L. Ed. 2d 545, 106 S. Ct. 2916 (1986); see also Anderson v. Liberty Lobby, 477 U.S. 242, 255-56, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ("where the factual dispute concerns actual malice . . . the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not").
The Report states that The National Herald might be found liable because in its investigation of the claims it uncovered Sfouggatakis's denial of the accuracy of the Letter and Dimas's refusal to comment based on the attorney-client privilege. This information is insufficient to meet the requisite showing of clear and convincing evidence of actual malice necessary to survive summary judgment.
In Sweeney v. Prisoners' Legal Services, Inc. and Murphy v. Battle, New York courts dismissed claims where plaintiffs failed to provide clear and convincing evidence of actual malice. Sweeney v. Prisoners' Legal Services, Inc., 84 N.Y.2d 786, 622 N.Y.S.2d 896, 647 N.E.2d 101 (1995) (dismissing correction officer's claim that he was defamed by allegations that he abused prisoners because "there was no direct evidence that defendants were aware that [the] claim against [defendant] was false" and as a result he could not establish actual malice); Murphy v. Battle, N.Y. L.J., Sept. 10, 1993, at 25 (N.Y. App. Div., Sept. 10, 1993) (no evidence that the defendant, Amsterdam News, entertained serious doubts as to allegations that a prison guard was abusing inmates).
The Magistrate Judge faults The National Herald for (1) failing to attempt to contact Coliniatis until one day before publication; and (2) failing to inquire into the subject matter of the Article during an interview with Coliniatis four days before publication. These incidents are not evidence of a "reckless disregard of truth or falsity" under established law, and are not indicative of an intent to avoid the truth. In both Sweeney, and Murphy, the defendants conducted no investigations into the allegations. These total failures to inquire into the claims were condoned, despite the fact that both cases involved complaints by convicted felons about their guards. Thus, in Sweeney, the court held that a failure to investigate cannot by itself be actionable "unless it evidences an intent to avoid the truth." Sweeney v. Prisoners' Legal Services, Inc., 84 N.Y.2d at 793.
Similarly, in Sands v. News America Publishing, Inc., 655 N.Y.S.2d 18, 19 (N.Y. App. Div. 1997), the Appellate Division found that "on the issue of malice, plaintiff failed to submit evidence of 'convincing clarity' that defendants were aware that the article was probably false, and, accordingly, summary judgment was properly granted." In that case, the plaintiff contacted the reporter prior to publication and denied related allegations. The court found that this denial did not constitute clear and convincing evidence of malice. As in these cases, the Court finds that the plaintiff has failed to adduce clear and convincing evidence of actual malice and there is no evidence that The National Herald intended to avoid the truth in its publication of the Article.
Furthermore, the court is not persuaded by plaintiff's argument that Sfouggatakis's denial that a bribery request had been made should have alerted The National Herald to the falsity of the allegations in the Letter. Emphatic denials are part of the landscape of journalism, and a decision to print a story in the face of such a denial, particularly where, as here, it comes from an interested protagonist, does not establish clear and convincing evidence of malice. In the words of Edwards :
It is conceded that the Times might have published the Audubon Society's accusations without fear of liability had Devlin but refrained from eliciting the views of the Society's victims. The appellees would punish the Times for its effort to confirm the story, apparently maintaining that a little prudence is a dangerous thing. . . . Surely liability under the "clear and convincing proof" standard of New York Times v. Sullivan cannot be predicated on mere denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error. . . . Accordingly, even if the Times were required to assume direct responsibility for the accusations, it could not, consistent with New York Times v. Sullivan, be found liable for defamation.
Edwards v. National Audubon Soc'y, 556 F.2d at 121; see also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. at 691 n.37 (press need not reflexively accept denials).
Coliniatis relies primarily upon Harte-Hanks Communications, Inc. v. Connaughton, in which the United States Supreme Court upheld a jury verdict for libel in favor of a candidate for judicial office against a newspaper. In that case, however, the plaintiffs presented strong, non-speculative evidence that the defendant newspaper intended to avoid the truth. For example, unlike the present case, the newspaper failed to disclose any of the facts which could have given rise to serious doubts of the accuracy of the report. In addition, the newspaper failed to make any attempt to interview a key witness or listen to crucial tapes which were available to it.
Because the Court finds that the plaintiff has not presented evidence of sufficient caliber to allow a rational fact finder to determine that The National Herald published the material with actual malice by clear and convincing evidence, The National Herald's motion for summary judgment dismissing the claim against it is granted.
IV. The Neutral Reportage Doctrine
The National Herald seeks dismissal on the alternative ground that the Article is protected by the neutral reportage privilege articulated by the Second Circuit in Edwards v. National Audubon Soc'y, 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 54 L. Ed. 2d 498, 98 S. Ct. 647 (1977). In that case, the Court dismissed a complaint where a journalist "believed, reasonably and in good faith, that his report accurately conveyed the charges made." The Edwards privilege has been limited to those instances where the defendant publishes a defamatory statement in the context of (1) "an accurate and disinterested report"; (2) regarding a newsworthy controversy; (3) in which the defamatory statement was made by a "responsible, prominent organization"; and (4) provided that the statement is not endorsed by the publisher. Levin v. McPhee, 917 F. Supp. 230, 239 (S.D.N.Y. 1996) (citing Edwards v. National Audubon Soc'y, 556 F.2d at 120).
In light of the potential publication of baseless allegations proffered by others, the Second Circuit has noted the need to circumscribe the breadth of the neutral reportage privilege. Accordingly, the Court has placed clear limits on the reach of the privilege, stating: "It is equally clear . . . that a publisher who in fact espouses or concurs in the charges made by others, or who deliberately distorts those statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage." Edwards v. National Audubon Soc'y, 556 F.2d at 120; see also Cianci v. New Times Publishing Co., 639 F.2d 54, 69-70 (2d Cir. 1980).
Applying these principles to this case, the Court finds that the Article is also protected by the neutral reportage doctrine. First, the Article is accurate and disinterested. Everything stated in the Article is true: the Letter was written, the Letter's liberally quoted contents are fully and accurately described, The National Herald's investigation of the allegations is fully described, and the denial of Sfouggatakis and the refusal to comment by Dimas are described. Second, the Article adopts the admonitions and hedging language in the Letter, including that the allegations were "plausible but unproven" and "of substantial but not absolute reliability." There is no evidence that The National Herald subscribed to any of the charges in the Letter, or distorted the allegations in the Letter in any way. Rather, the Article is well-balanced and neutral, with a full description of what information is lacking or disputed. Even the headline of the Article states that the allegations are made by "lawyers of the company."
The Court also finds Dimas & Johnston to be a "responsible, prominent organization" within the meaning of Edwards. The "responsible, prominent organization" requirement of the neutral reportage doctrine acts as a proxy for determining when the very fact that allegations are made is itself newsworthy, see Levin v. McPhee, 917 F. Supp. at 239, as well as an indication that a report is likely to be reliable to insure that an irresponsible republisher of unsupported allegations cannot hide behind the aegis of the privilege. Both policies are satisfied here. Given the Greek-American community's interest in Olympic, it is newsworthy that the company's own counsel made such allegations. See Edwards v. National Audubon Soc'y, 556 F.2d at 120 ("What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth."). The firm's status with respect to Olympus also provides a certain degree of trustworthiness. Thus, the essential policies behind the requirement are satisfied. See In re United Press Int'l, 106 B.R. 323 (D.D.C. 1989) (republication of allegations by the brother of a missing individual satisfies the neutral reportage doctrine where report was neutral and disinterested, since limiting the doctrine to more "'responsible' or 'prominent' defamers is inconsistent with the raison d'etre of the doctrine"); see also Barry v. Time, Inc., 584 F. Supp. 1110, 1126 (N.D. Ca. 1984) (because of the public interest in being informed of controversies and the potential chilling effect on the press, neutrality of reporting is of more significance than trustworthiness of the source in satisfying the requirement).
Accordingly, the Court finds that the Article is protected by the neutral reportage doctrine.
IV. Rule 11 Sanctions
Neither party objects to the Magistrate Judge's recommendation that the motions for Rule 11 sanctions be denied. The Court has considered this aspect of the Report and determines that there is no clear error on the face of the record. Because the Court agrees with the recommendation that sanctions are not warranted, both motions for Rule 11 sanctions are denied.
For the reasons set forth above, The National Herald's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 dismissing the complaint against it is granted.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
May 28, 1997