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Last-Modified: 1996/10/10

                      CARTO v. BUCKLEY
           Cite as 649 F.Supp.502 (S.D.N.Y. 1986)
             Willis A. CARTO and Liberty Lobby,
                      Inc., Plaintiffs,
                 William F. BUCKLEY, Jr. and
                 Doubleday & Company, Inc.,
                   No. 84 Civ. 1812 (RJW).
                United States District Court,
                        S.S. New York
                       Nov. 25, 1986.
Individual and national lobbying group brought against
author and his publishing company to recover damages for
publication of book that contained allegedly libelous
statements. Author and his publishing company moved for
dismissal or, alternatively, for summary judgement. The
District Court, Robert J. Ward, J., held that: (1) statement
about national lobbying  group's publication constituted
constitutionally protected opinion, and (2) statement about
individual constituted constitutionally protected opinion.

                  Summary judgment granted.

1. Libel and Slander (West Key 80)

Under New York law, plaintiff must establish prima facie
case of defamation by pleading that defendant negligently or
willfully uttered a defamatory statement of or concerning
plaintiff to a third person which resulted in damage to
plaintiff's reputation.

2. Constitutional Law (West Key 90.1(5))

Under First Amendment, opinions are not actionable. U.S.C.A
Const.Amend. 1.

3. Libel and Slander (West  Key 123(2))

In defamation action, determination of whether statement is
fact or opinion is question of law.

4. Libel and Slander (West Key 19)

In distinuishing actionable statement from protected
opinion, district court must consider context in which
statement is made and circumstances surrounding statement,
whether words of statement itself are being used literally
or figuratively, whether statement can be proved objectively
true of false, and, if statement is opinion, if opinion
nevertheless implies allegation of undisclosed defamatory
facts as its basis.

5. Libel and Slander (West Key 6(1))

Statement made by nationally known lecturer and columnist in
autobiographical book written from political perspective
that distinctive feature of national lobbying group's
publication was racial and religious bigotry, was
consitutionally protected opinion, as statement provided no
objective criteria by which its truth or falsity could be
evaluated and as author and lobbying group had history of
public exchange on political issues. U.S.C.A. Const.Amend. 1.

6. Constitutional Law (West Key 90.1(5))

Constitutionally protected statement of opinion in book by
nationally known author, that distinctive feature of
national lobbying group's publication was racial and
religious bigotry, did not indicate that the author's
opinion was based on clear but false implication that he was
privy to facts about publication that were unknown to
general readers and thereby overcome constitutional
protection afforded opinion. U.S.C.A. Const. Amend. 1.

7. Constitutional Law (West Key 90.1(5))

Statement made by nationally known lecturer and columnist in
autobiographical book written from political perspective
that individual had attacked author "presumably upon
learning that we thought the Protocols of the Learned Elders
of Zion a forgery," consititued constitutionally protected
opinion, as use of word "presumably" was acknowledgement of
an uncertainty, rendering statement incapable of being
proven true or false. U.S.C.A. Const.Amend. 1.

8. Constitutional Law (West Key 90.1(5))

Statement phrased in manner that its truthfulness can never
be determined is constitutionally protected statement of
opinion. U.S.C.A. Const.Amend. 1.

9. Constitutional Law (West Key 90.1(5))

Constitutionally protected statement of opinion in book by
nationally known author, that individual had attacked author
"presumably upon learning that we thought the Protocols of
the Learned Elders of Zion a forgery," could not be
reasonably understood to imply existence of undisclosed
defamatory facts as its basis and thereby overcome
constitutional protection afforded statement where author
admitted that he did not really know reason for individual's
attack. U.S.C.A. Const.Amend. 1.

10. Federal Civil Procedure (West Key 2721)

Although district court would have entertained motion for
Rule 11 sanctions in defamation action involving political
opinion, sanctions would not be awarded where defendants did
not request sanctions and as Rule 11 is newly revised and
lacked precident when plaintiffs filed action. Fed.Rules
Civ.Proc.Rule 11, 28 U.S.C.A.


Mark Lane, Washington, D.C., for plaintiffs.

Satterlee & Stephens, New York City, for defendants; Robert
M. Callagy, of counsel.


ROBERT J. WARD, District Judge

Plaintiffs Willis A. Carto and Liberty Lobby, Inc. ("Liberty
Lobby") commenced this diversity action against defendants
William F. Buckley, Jr. and Doubleday & Company, Inc.
("Doubleday") to recover damages for the publication in 1983
of a book that contained allegedly libelous statements. The
defendants now move to dismiss the complaint pursuant to
Rule 56, Fed.R.Civ.P. For the reasons that follow, the court
grants defendants' motion for summary judgement.

In 1983, Doubleday published a book written by Buckley
entitled _Overdrive: A Personal Documentary_. The book
contained the following paragraph:

     A note from Howard Hunt. He lodged a libel suit several
     years ago against _The Spotlight_, a publication of the
     Liberty Lobby, of which a principal figure is Willis
     Carto. _The Spotlight's_ distinctive feature is racial
     and religious bigotry. Howard writes, "So far Carto has
     avoided deposition by staying on the West Coast,
     allegedly; this delays my libel suit's progress." He
     says he has heard from Carto's lawyer that "Willis
     Carto by coincidence a target of yours." More
     exactly, it is the other way around, Carto having
     attacked me and _National Review_ for years, presumably
     on learning that we thought the Protocols of the
     Learned Elders of Zion a forgery. We were finally
     ourselves forced to sue Carto (or, more exactly,
     countersue), and the stuff (depositions, motions) is in
     the hands of the judge -- the slowest judge in history.
     (A few weeks later, Howard called me in high exultation
     to say that the jury had awarded him a judgement of six
     hundred and fifty thousand dollars. _The Spotlight_ had
     alleged about Hunt, among other jocularities, that he
     would probably be implicated in the assassination of
     John Kennedy.)
W.F. Buckley, Jr., _Overdrive: A Personal Documentary_ 57-58

Liberty Lobby,  an incorporated not-for-profit lobbying
organization that publishes the weekly paper _Spotlight_,
contends that the sentence "_The Spotlight's_ distinctive
feature is racial and religious bigotry" defamed it. Carto,
the founder of Liberty Lobby, similarly contends that the
phrase "... Carto having attacked me [Buckley] and `National
Review' for years, presumably upon learning that we thought
the Protocols of the Learned Elders of Zion a forgery"
likewise defamed him. On October 6, 1983, the plaintiffs,
through their counsel, demanded in writing that the
defendants retract the allegedly defamatory statements. The
defendants refused to do so.

On March 14, 1984, the plaintiffs filed this libel action
requesting both compensation and punitive damages. The
complaint charges that in making the statements referred to

     the defendants intended to and did convery the claim
     and impression that the plainriffs Willis A. Carto and
     Liberty Lobby, Inc. gave credence to the so-called
     Protocols of the Learned Elders of Zion, which are in
     fact a monstrous anti-Semitic forgery, and therefore
     the defendants intended to and did convey the claim and
     impression that the plaintiffs Willis A. Carto and
     Liberty Lobby, Inc., support and advocate anti-Semitism
     of the most ugly sort.

Complaint at paragraph 11. Defendants now move to dismiss
the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., or,
alternatively, for summary judgment pursuant to Rule 56,
Fed.R.Civ.P., contending first that the passages at issue
qualify as constitutionally protected opinion, and second
that the plaintiffs cannot establish by clear and convincing
evidence that the defendants published the statements with
knowledge of falsity of reckless disregard of the truth.

Because it has examined matters outside the pleadings, the
Court will consider the present motion as one for summary
judgment. A Court may grant the extraordinary remedy of
summary judgment only when it is clear both that no genuine
issue of material fact remains to be resolved at trial and
that the movant is entitled to judgment as a matter of law.
Rule 56, Fed.R.Civ.P. In deciding the motion, the Court is
not to resolve disputed issues of fact, but rather, while
resolving ambiguities and drawing reasonable inferences
against the moving party, to assess whether material factual
issues remain for the trier of fact. _Knight v. U.S. Fire
Insurance Co._, 804 F.2d 9, 11, No. 86-7294, (2d Cir.1986)
(citing _Anderson v. Liberty Lobby Inc._, -- U.S. --, 106
S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986). While the party
seeking summary judgment bears the burden of demonstrating
the lack of material factual issues in dispute, _Schering
Corp. v. Home Insurance Co._, 712 F.2d 4, 9 (2d Cir.1983),
"[t]he mere existence of factual issues -- where those
issues are not material to the claims before the court --
will not suffice to defeat a motion for summary judgment."
_Quarles v. General Motors Corp._, 758 F.2d 839 (2d Cir.1985) 
(per curiam).

While the movant faces a difficult burden to succeed,
motions for summary judgment, properly employed, permit a
Court to terminate frivolous claims and to concentrate its
resources on meritorious litigation. _Knight v. U.S. Fire
Insurance, supra_, at 12. The motion then

     is properly regarded not as a disfavored procedural
     shortcut, but rather as an integral part of the Federal
     Rules as a whole, which are designed "to secure the
     just, speedy and inexpensive determination of every
     action." Fed.Rule.Civ.Proc. 1.... Rule 56 must be
     construed with due regard not only for the rights of
     persons asserting claims and defenses that are
     adequately based in fact to have those claims and
     defenses tried to a jury, but also for the rights of
     person opposing such claims and defenses to demonstrate
     in the manner provided by the Rule, prior to trial,
     that the claims and defenses have no factual basis.
_Celotex Corp. v. Catrett_, -- U.S. --, 106 S.Ct. 2548, 91
L.Ed2d 265 (1986).

I. _Defamation and the First Amendment_

[1] Although states create statutory or common law causes of
action for defamation,<1> the First Amendment of the
Constitution, which the Fourteenth Amendment makes
applicable to the states,  _Murdock v. Pennsylvania_, 319
U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292 (1942),
delimits a state's power to award damages for libel, _New
York Times Co. v. Sullivan_, 376 U.S. 254, 283, 84 S.Ct.
710, 727, 11 L.Ed.2d 686 (1964).

An analysis of allegedly libelous statements then must be
conducted with full cognizance of the value represented by
the First Amendment and the "profound national commitment to
the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp
attacks." _Id._ at 270, 84 S.Ct. at 720.

Indefeasible protection of opinion facilitates the free flow
of ideas. "Erroneous opinions are inevitably put forward in
free debate but even the erroneous opinion must be protected
so that debate on public issues may remain robust and
unfettered and concerned individuals may have the necessary
freedom to speak their conscience." _Rinaldi v. Holt,
Rinehart & Winston_, 42 N.Y.2d 369. 379, 366 N.E.2d 1299,
1306, 397 N.Y.S.2d 943, 950, _cert. denied_ 434 U.S. 969, 98
S.Ct.  514, 54 L.Ed.2d 456 (1977). As the Supreme Court
observed in _Gertz v. Robert Welch, Inc.), 418 U.S. 323, 339-
40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974), "[u]nder
the First Amendment there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on
the competition of other ideas." The Second Circuit has
noted the Constitution's "bias toward unfettered speech at
the expense, perhaps of compensation for harm to reputation"
in situations involving public figures and topics of public
interest which significantly affect political discourse.
_buckley v. Littell_, 539 F.2d 882, 889 (2d Cir.1976),
_cert. denied_, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 777

The Supreme Court has long recognized the unique nature of
political and religious speech.

     In the realm of religious faith, and in that of
     political belief, sharp differences arise. In both
     fields the tenets of one man may seem the rankest error
     to his neighbor. To persuade others to his own point of
     view, the pleader, as we know, at times resorts to
     exaggeration, to vilification of men who have been, or
     are, prominent in church or state, and even to false
_New York Times v. Sullivan, supra_, 376 U.S. at 271, 84
S.Ct. at 721 (quoting _Cantwell v. Connecticut_, 310 U.S.
296, 310, 60 S.Ct 900, 906, 84 L.Ed. 1213 (1940)). The
Second Circuit has found that significant safeguards are
necessary to preserve the freedoms guaranteed by the First

     These strict tests may some harsh results. Individuals
     who are defamed may be left without compensation. But
     excessive self-censorship by publishing houses would
     be a more dangerous evil. Protection and encouragement
     of writing and publishing, however controversial, is
     of prime importance to the enjoyment of first
     amendment freedoms. Any risk that full and vigorous
     exposition and expression of opinion on matters of
     public interest may be stifled must be given great
     weight. In areas of doubt and conflicting
     considerations, it is thought better to err on the
     side of free speech.

_Hotchner v. Castillo-Puche, 551 913 (2d Cir.), _cert.
denied sub. nom_, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d
95 (1977).

[2] The nature of an allegedly libelous statement as
opinion or fact then is clearly crucial. Opinions, however
rude, grating, obnoxious, or personally offensive are
simply not actionable.

[3] The determination of whether a statement is fact or
opinion is a question of law for the Court. _Davis v.
Ross_, 754 F.2d 80, 85 (2d Cir.1985); _Rinaldi v. Holt,
Reinhart & Winston, supra_, 42 N.Y.2d at 382, 366 N.E.2d
at 1299, 397 N.Y.S.2d at 950. While it is clear that
expressions of opinion are constitutionally protected,
determining whether a particular statement
or fact presents oftentimes nettlesome problems. Although
the evanescent distinction may be "hazy at times," one
federal court has suggested that "loosely definable,
variously interpretable statements... made inextricably in
the context of political, social, or philosophical debate"
are opinions, while statements "imputing  objective
reality, uncolored by possible interpretation or bias,"
are assertions of fact. _Ollman v. Evans_, 479 F.Supp.
292,  294 (D.D.C.1979), _aff'd_, 750 F.2d 970
(D.C.Cir.1984)  _cert. denied_, 471 U.S. 1127, 105 S.Ct.
2662, 86 L.Ed.2d 278 (1985) (quoting _Buckley v. Littell,
supra_, 539 F.2d at 895). The Court must inquire from the
perspective of an "ordinary reader." _Buckley v. Littell,
supra_, 539 F.2d at 894.

 [4] While the Second Circuit has formulated no precise
test to distinguish action able statements from protected
opinions, recent decisions have outlined the most crucial
considerations. When deciding whether a statement is fact
or opinion, the court must first consider the context in
which the statements are made and the circumstances
surrounding the statements. The Court must consider as
well whether the words of the statement itself are being
used literally or figuratively and whether the statements
can be proved objectively true or false. Finally, if the
foregoing evaluation indi cates a statement is opinion,
the court should determine whether the opinion
nevertheless implies the allegation of undisclosed
defamatory facts as its basis. _Mr. Chow of New York v.
Ste. Jour AzurS.A._, 759 F.2d 219, 225-26 (2d Cir.l9'

        A. Statement Concerning Liberty Lobby

 Following the Mr. Chow test, the Court will first
consider the context and circumstances surrounding the
first statement concerning Liberty Lobby itself. As noted
above, Buckley published the statement that "_The
Spotlight's_ distinctive feature is racial and religious
bigotry" in his book _Overdrive: A Personal Documentary_.
Buckley is a well known lecturer, a columnist syndicated
in 350 newspapers, and the author of over twenty books,
many of which have been best sellers. Buckley is the
editor of The National Review, a leading publication of
the conservative movement in America. As the Second
Circuit wrote in Buckley v. Littell, supra, "[t]he
substance of much of [Buckley's] writing and speaking is
political. He may fairly be described as perhaps the
leading advocate, idealogue or theoretician of
conservative political beliefs and ideas." 539 F.2d at
886. Liberty Lobby is a Washington, D.C.based not-for-
profit corporation and self-described "citizens' lobby." '
Anderson v. Liberty Lobby, supra, 106 S.Ct. at 2506.

The book studies Buckley's life from a uniquely political
perspective. Entitled Overdrive: A Personal Documentary_,
it is an autobiographical deseription of a typical week in
Buckley's life. Buckley wrote the book in the first person
tracing his daily life, including particularly his
correspon dence, thoughts, and conversations. Each
statement in the book is filtered through Buckley's
perspective of the events which occur during the week
being described.

The paragraph at issue in this lawsuit indicates a history
of public exchange be tween Buckley and Liberty Lobby.
Thus, Buckley's belief that the distinctive feature of
_The Spotlight_ is racial and religious bigotry results
from an exchange in the political arena where the "widest
latitude for debate in the interests of the First
Amendment must be furnished." _Buckley v. Littell, supra_,
539 F.2d at 889.

Moreover, the fact that Liberty Lobby forcefully presents
a particular political view supports the conclusion that
Buck ley's book is protected political debate. By
zealously advocating particular positions in its
publication, Liberty Lobby opens itself up to criticism
from those who believe dif ferently. Neither an
organization nor a person who sallies forth to espouse a
specific creed or conviction can resort to the courts to
silence those who disagree with that viewpoint.<4>
Litigation, as Mr. Buckley himself has found out, is both
an inappropriate, and because of the First Amendment
protections, an ineffective way to rebut ideas.<5>

 [5] Turning to the second and third _Mr. Chow_ factors,
an examination of the specific language of the allegedly
libelous statement likewise warrants the conclusion that
the statement is opinion. What constitutes the
"distinctive feature" in a publication is a matter of
emphasis or subjective perception rather than one of fact.
The different individuals who read The Spotlight
undoubtedly have different perspectives about what
constitutes the publication's "distinctive feature." In
addition, the general terms "racial and religious bigotry"
are imprecise concepts which cannot be proven true or
false as statements of fact. As explained by the Buckley
court, words that convey concepts "whose content is so
debatable, loose and varying, that they are insusceptible
to proof of truth or falsity" are considered statements of
pure opinion absolutely protected by the First Amendment.
_Buckley v. Littell, supra_, 539 F.2d at 894. The court's
involvement in ascertaining the meaning Buckley's
statement conveys would transport it into "the area of
opinion as opposed to factual assertion." _Buckley v.
Littell, supra_, 539 F.2d at 892. This applies to the
statement at issue. There is no one opinion of what
constitutes "racial and religious bigotry," or for that
matter what constitutes "bigotry" generally. Thus, the
statement that The Spotlight's distinctive feature is
racial and religious bigotry provides no objective
criteria by which its truth or falsity can be evaluated.
In such situations, the Second Circuit has protected even
arguably unreasonable opinions. "An assertion that cannot
be proved false cannot be held libellous. A writer cannot
be sued for simply expressing his opinion of another
person, however unreasonable the opinion or vituperous the
expressing of it may be." _Hotchner v. Castillo-Puche,
supra_, 551 F.2d at 913. Because the terms used by Buckley
are so "debatable, loose and varying," that they are not
susceptible to truth or falsity, it is clear that Buckley
has stated a constitutionally protected opinion whose
truth may be debated, but cannot be denied. Buckley v.
Littell, supra, 539 F.2d at 894.

A variety of other courts have found similar statements
made in analogous contexts to be protected opinions. In
_Buckley v. Littell, supra_, Buckley himself was precluded
by the same doctrine from suing author Franklin M. Littell
who had labeled him a "fellow traveler of fascism" and a
"deceiver" because he allegedly used his journalistic
position to spread materials from "openly fascist
journals" under the guise of responsible conservatism. 539
F.2d at 894. The Second Circuit found Littell's commentary
to be protected opinion and therefore not actionable. The
court observed that the statement labeling Buckley "a
fellow traveler of fascism," had a "tremendous
imprecision" in both meaning and usage. _Id._ at 893. The
court also found that what constituted an "openly fascist"
journal was as much a matter of opinion as is "the
question what constitutes 'fascism' or the 'radical
right.' " 539 F.2d at 895. The view that the "distinctive
feature" of a magazine is "racial and religious bigotry"
can be no less a protected opinion than Littell's
statement that Buckley is a "fellow traveler of fascism"
spreading materials from "openly fascist journals."

The district court in _Liberty Lobby v. National Review_,
No. 79-3445, slip op. at 10 (D.D.C. April 20, 1983), took
a similar position. In that case, the court found that an
article appearing in the National Review that called the
Liberty Lobby "a hotbed of anti-Semitism" fell "within the
realm of protected opinion". Id. at 7. In analyzing the
language, the court pointed out that it was impossible to
determine how much anti-Semitism justifies the label "a
hotbed" and, more importantly for the purposes of this
case, that the term anti-Semitism itself was too imprecise
to be defined. Id. at 10.

The court concluded that to "impose such requirements of
proof and measure upon statements of opinion would
stultify the right of free speech protected by the first
amendment to the Constitution." _Id._ In reaching this
conclusion, the court relied upon _Holy Spirit for
Unification of World Christianity v. Sequoia Elsevier
Publishing Co., Inc._, 75 A.D.2d 523, 524, 426 N.Y.S.2d
759, 760 (1st Dept.1980). That case concerned a published
statement that had charged the plaintiff with being "a
theological-political instrument, combining elements of
Manicheism, Nazi-style anti-Semitism, Calvinism, and the
most discredited aspects of pre-Reformation Roman
Catholicism." The New York court, relying upon _Gertz v.
Robert Welch, supra_, specifically found that the
statement was a protected statement of opinion. _Id_ See
also _Liberty Lobby v. Dow Jones & Company_, 638 F.Supp.
1149 (D.D.C.1986) (calling Liberty Lobby "anti-Semitic" is
"probably constitutionally protected opinion," but even if
it is a fact, the statement is true); _Ollman v. Evans_,
750 F.2d 970 (D.C.Cir.1984) (statements in newspaper
article accusing plaintiff of being a "political Marxist,"
a "political activist," and a "pamphleteer" entitled to
absolute first amendment protection as expressions of

[6] Applying the _Mr. Chow_ factors, the circumstances in
this case indicate that one public figure is suing another
public figure for allegedly defamatory statements that
appear in a book where the context of the publication
indicates that the challenged statement represents a
heated clash of political wills. Having examined the
specific language of the statement, the Court finds that
the literal terms utilized by Buckley undoubtedly
represent a subjective judgment incapable of being
objectively proven true or false. Inasmuch as the
foregoing analysis indicates that the statement is
opinion, the Court must apply the final _Mr. Chow_
consideration. Turning to this final factor, the Court
finds no evidence to indicate that Buckley's opinion was
based on a "clear but false implication" that he was
"privy to facts" about _The Spotlight_ "that are unknown
to the general reader." See _Davis v. Ross, supra_, 754
F.2d at 85-86 (quoting _Hotchner v. Castillo-Puche,
supra_, 551 F.2d at 913). For all these reasons, the
statement in question is one of protected opinion and
therefore no action for libel can lie.

B. Statement Concerning Willis Carto

Applying the _Mr. Chow_ test to the second statement
directs the same conclusion; it, too, is protected
opinion. The statement that ". . . Carto having attacked
me [Buckley] and 'National Review' for years, presumably
upon learning that we thought the Protocols of the Learned
Elders of Zion a forgery" appears along with the first
statement in the same paragraph of Buckley's book. The
Court's observations in regard to the context and
circumstances of the first statement, the first Mr. Chow
factor, thus apply equally to this second statement.

[7] Applying the second and third Mr. Chow factors, the
Court determines that the statement, even taken literally,
is nonactionable opinion and that it is incapable of being
proven true or false. Even assuming arguendo that the
average reader would draw from Buckley's reference to the
Protocols of the Learned Elders of Zion the literal
impression that Carto and Liberty Lobby are anti-
Semitic,<6> such statement, is nonetheless
constitutionally protected opinion.<7> See _Liberty Lobby
v. National Review, supra_, slip op. at 10; _Holy Spirit
Association v. Sequoia Elsevier Publishing Co., Inc.,
supra_, 426 N.Y.S.2d at 760. Even if the term anti-Semitic
was not opinion per se, this Court, applying the second
and third _Mr. Chow_ factors, would still find the
challenged statement to be protected opinion. Crucial to
the determination that the statement is opinion is
Buckley's very use of the word "presumably" to modify his
explanation of Carto's motives in attacking him. By using
"presumably," Buckley underlines his uncertainty as to
whether Carto has criticized him for his views on the
authenticity of the Protocols of the Learned Elders of
Zion. The acknowledgment of uncertainty renders Buckley's
statement incapable of being proven true or false. See
_Buckley v. Littell, supra_, 539 F.2d at 894.

The Court in _Korkala v. W. W. Norton & Company_, 618
F.Supp. 152 (S.D.N.Y.1985) reached a similar conclusion on
analogous language and granted defendant summary judgment.
Korkala involved a New York gunrunner named in a book
concerning international arms trade who brought a libel
action against the publishers, editors, and author of the
book. One of the allegedly libelous statements describes a
raid by New Jersey police on the headquarters of Amstech
Corporation in New Jersey. Amstech, the book explains,
"was George Korkala's [the plaintiff's] export company,
though it is probable that the real owner was Frank
Terpil." 618 F.Supp. at 154 (emphasis added). Korkala
claimed that this statement injured his ability to earn a
livelihood as he is the complete owner of the company.
Although expressing some skepticism, the court assumed
_arguendo_ that the statement was damaging for the
purposes of the analysis.

[b]ut even assuming the statement is damaging (and false),
it is not actionable. That is because the reference to
Amstech as "George Korkala's export company, though it is
probable that the real owner was Frank Terpil" is an
expression of opinion, and expressions of opinion are
constitutionally protected.

618 F.Supp. at 156 (citing _Mr. Chow of New York v. Ste.
Jour Azur S.A., supra_, 759 F.2d at 223.) In _Wynberg v.
National Enquirer, Inc._, 564 F.Supp. 924 (C.D.Cal. 1982),
the court examined defendant's statement that "I suspect
the real total [of money plaintiff improperly obtained
from Elizabeth Taylor] was even more" than the amount made
public. Evaluating this statement, the court held it to be
"an expression of [the author's] feeling which is not
defamatory". Id at 926.

[8] The phrase "presumably," similar to the phrases "I
suspect" and "it is probable," expresses Buckley's
constitutionally protected belief or opinion. A statement
phrased in a manner that its truthfulness can never be
determined, as here, is opinion. Even were the Court able
to discern the actual reason for Carto attacking Buckley,
Buckley's statement is still not false; it is just an

[9] Having found that the second statement is also
opinion, the Court must apply the final Mr. Chow factor.
By using the terminology "presumably," Buckley
acknowledges that he is unsure of why Carto has criticized
him. Since Buckley openly admits that he does not really
know the reason for Carto's attack, this Court finds that
the statement cannot be reasonably understood to imply the
existence of undisclosed defamatory facts as its basis. As
such, Buckley's opinion is entitled to constitutional

II. _Rule 11 Sanctions_

Having completed an extensive analysis of the challenged
statements, and finding the plaintiffs' position entirely
lacking in merit, the Court would pause to remind
plaintiffs that Rule 11 exists to prevent such frivolous
and unfounded litigation. While the defendants in this
case did not request that Rule 11 sanctions be awarded,
had such a motion been made, it would certainly have been

Rule 11, Fed.R.Civ.P. reads in relevant part,

     The signature of an attorney or party constitutes a
     certificate by him that he has read the pleading,
     motion, or other paper; that to the best of his
     knowledge, information, and belief formed after
     reasonable inquiry it is well grounded in fact and is
     warranted by existing law or a good faith argument for
     the extension, modification, or reversal of existing
     law, and that it is not interposed for any improper
     purpose, such as to harass or to cause unnecessary
     delay or needless increase in the cost of litigation.

The language of the rule, which was amended in 1983, is
strikingly different from the words of its predecessor. No
longer is it sufficient for an attorney to claim that he
acted in good faith or that he personally was unaware of
the groundless nature of a claim. Rather, the language of
Rule 11 "explicitly and unambiguously imposes an
affirmative duty on each attorney to conduct a reasonable
inquiry into the viability of a pleading before it is
signed." _Eastway Const. Corp. v. City of New  York_, 782
F.2d 243, 253 (2d Cir.1985).

[10] Had plaintiffs' attorney made such an inquiry in this
case, he would have realized that under Buckley v.
Littell, supra, 539 F.2d 882, and Liberty Lobby v.
National Review, supra, plaintiffs stood no chance of
succeeding. As recently noted by the Second Circuit, "[n]o
litigant has the right to monopolize judicial resources
and thus indirectly to obstruct other litigants asserting
good faith claims." _In re Martin-Trigona_, 795 F.2d 9, 12
(2d Cir.1986). This Court, however, must apply Rule 11 so
that "any and all doubts must be resolved" in favor of the
plaintiffs. _Eastway Const. Corp. v. City of New York,
supra_, 762 F.2d at 254. Thus, sanctions will not be
awarded here because Rule 11 was newly revised and lacked
precedent when plaintiffs filed the present action and
because the defendants have not requested sanctions. For
suits filed subsequent to this one, these considerations
may well not be applicable. It is clear that, at least
from this point on, the plaintiffs should be considered to
be on notice of the law in this area and if additional
frivolous suits are filed, courts should not hesitate to
impose monetary sanctions.
The statements appearing in _Overdrive: A Personal
Documentary_ are constitutionally protected expressions of
opinion. Accordingly, the Court grants defendants' motion
for summary judgment and dismisses the action with costs.

It is so ordered.


<1> Defamation includes both libel and slander. In New York,
whose law applies to this case, plaintiff must establish a
_prima facie_ case by pleading that defendant (1)
negligently or willfully uttered a (2) defamatory statement
(3) of or concerning the plaintiff (4) to a third person (5)
which resulted in damage to plaintiff's reputation. _Donahue
v. Pendleton Wollen Mills, Inc._, 633 F.Supp. 1423, 1439-40
(S.D.N.Y. 1986); _see National Nutritional Foods Ass'n v.
Whelan_, 492 F.Supp. 374 (S.D.N.Y. 1980).

<2> The Second Circuit in Mr. Chow reached its result by
applying a combination of the factors utilized by the
Second Circuit in prior cases and factors outlined by the
D.C. Circuit in _Ollman v. Evans_, 750 F. d 970
(D.C.Cir.1984) (_en banc_). The factors noted by both
courts largely overIap. The Court will apply the _Chow_
analysis which broadly groups the various considerations
as 1) context and circumstances 2) literal or figurative
language 3) truth or falsity and 4) allegation of
undisclosed defamatory facts.

<3> Plaintiffs in this case do not deny that they are
public figures. The standard for determining whether a
person or corporate entity is a public figure is set forth
in _Gertz v. Robert Welch, Inc._,418 U.S. 323, 94 S.Ct.
2997, 41 L.Ed.2d 789 (1974). "[T]hose who, by reason of
the notoriety of their achievements or the vigor and
success with which they seek the public's attention, are
properly classed as public figures." _Id._ at 342, 94
S.Ct. at 3008. The Court also distinguished between those
who are public figures for all purposes and those who are
public figuresin a more limited fashion:

     For the most part those who attain this status have
     assumed roles of special prominence in the affairs of
     society. Some occupy positions of such persuasive
     power and influence that they are deemed public
     figures for all purposes. More commonly, those classed
     as public figures have thrust themselves to the
     forefront of part cular public controversies in order
     to influence the resolution of the issues involved. In
     either event, they invite attention and comment.

_Id._ at 345, 94 S.Ct. at 3009.

Applying this public figure analysis to Liberty Lobby,
Inc. and Willis A. Carto, it is clear that the plaintiffs
are at least limited purpose public figures. As a
political lobbying organization, there is no question that
Liberty Lobby has thrust itself into the forefront of a
variety of public controversies. By publishing a newspaper
of national circulation, Liberty Lobby also invites
attention and comment. The Second Circuit in _Liberty
Lobby, Inc. v. Pearson_, 390 F.2d 489, 491 (1968),
observed, "[t]he express purposes and the admitted
activities of Liberty Lobby -- political lobbying and
dissemination of information on highly controversial
subjects -- render its affairs a matter of public
interest." Similarly, as the founder and chairman of
Liberty Lobby and a man generally in the public eye, Carto
is also a public figure. The Supreme Court in _Anderson v.
Liberty Lobby, Inc._, -- U S. -- , 106 S.Ct. 2505, 2509 n.
3, 91 L Ed.2d 202 (1986), accepted the district court's
condusion that Liberty Lobby and Carto were limited
purpose public figures.

The importance of free speech in our society is reflected
by the very high burden placed upon a plaintiff in a libel
case. When a public figure sues for defamation, the first
amendment bars recovery unless the defamatory falsehood
was  made with actual malice -- defined as either
knowledge of falsity or reckless disregard forthe truth.
_Gertz v. Robert Welch, Inc., supra_,418 U.S. at 342-43,
94 S.Ct. at 3008. Moreover, the Supreme Court has recently
stated that to withstand a motion for summary judgment,
the plaintiff must establish with "convincing clarity"
that the statements were made with actual malice.
_Anderson K Liberty Lobby, Inc., supra_, 106 S.Ct. at
2515. Because the Court holds that the statements in
question are protected opinion, the issue of whether
plaintiff has shown actual malice with convincing clarity
need not be reached.

<4> See discussion of _Buckley v. Littell, infra._

<5> Liberty Lobby has brought similar suits against others
who have publicly disagreed with its views, including the
Anti-Defamation League of B'nai Brith, columnist Jack
Anderson, the late Drew Pearson, and most recently, Dow
Jones & Company, publishers of the Wall Street Journal.
Liberty Lobby has not fared particularly well in any of
these suits. See, e.g., _Anderson v. Iiberty Lobby, Inc.,
supra_ 106 S.Ct. 2505; _Liberty Lobby, Inc. v. Drew
Pearson, supra_ 390 F.2d 489; _Liberty Lobby Inc. v. Dow
Jones & Company, supra_. Dow Jones & Company has made an
application under Rule 11, Fed.R.Civ.P. to recover the
$300,000 it has expended in defending the libel action.

<6> To reach such a conclusion, the average reader would
have to first be aware of the content and history of the
Learned Protocols of the Elders of Zion, would then have
to infer that those who believe in the truth of the
Learned Elders of Zion are anti-Semitic, and would finally
have to infer that Carto's attack on Buckley and the
National Review means that Carto believes the Protocols
are true and thus, Carto is anti-Semitic. The Court
observes that to draw the ultimate conclusion that Carto
is anti-Semitic, the average reader would have to follow
this extensive series of inferences. Thus, the average
reader actually might not have been aware that the
statement potentially implied that Carto is anti-Semitic.

<7> In examining the specific language chosen by Buckley,
it is obvious that the word "attacked" would be
interpreted by the average reader to mean "criticized" as
opposed to a literal definition of a physical assault,
which might imply criminal conduct and could be found to
be defamatory. Buckley's use of hyperbole does not render
an otherwise protected statement somehow actionable. _Mr.
Chow of New York v. Ste. Jour Azur S.A., supra_, 759 F.2d
at 228.

8. Inasmuch as no libel was committed, Doubleday, the
publisher of the book, also cannot be held liable.

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