CHURCH OF SCIENTOLOGY INTERNATIONAL, Plaintiff,
v.
TIME WARNER, INC., Time Inc. Magazine Company, and Richard Behar, Defendants.
No. 92 Civ. 3024 (PKL).
United States District Court,
S.D. New York.
Nov. 14, 1995.
Religious group which had been subject of magazine article brought defamation
action against magazine, publisher, and author, and defendants moved for
summary judgment. The District Court, Leisure, J., held that: (1) statements
that group survived by intimidating members in Mafia-like manner and that
opponents of group often find themselves harassed or threatened, quotation of
individual who described group as cult, and description of investigation by
father whose child had committed suicide after being group member were not made
with actual malice under New York Times standard, but (2) issue of whether
statement that source of funds for group was notorious Canadian stock
exchange was made with actual malice was for jury.
Granted in part and denied in part.
[1] FEDERAL CIVIL PROCEDURE
Summary judgment is proper only if, viewing all evidence in light most
favorable to nonmoving party, there is no genuine issue of material fact as to
essential element of claim.
[2] LIBEL AND SLANDER
Public figure suing for libel most prove, as one of essential elements of
claim, that defendant published material with "actual malice," that is, with
actual knowledge of its falsity or with serious subjective doubts as to its
truth.
[3] CONSTITUTIONAL LAW
First Amendment requires that public figure who brings libel action prove
actual malice with clear and convincing evidence. U.S.C.A. Const.Amend. 1.
[3] LIBEL AND SLANDER
First Amendment requires that public figure who brings libel action prove
actual malice with clear and convincing evidence. U.S.C.A. Const.Amend. 1.
[4] FEDERAL CIVIL PROCEDURE
No genuine issue of material fact exists in libel action brought by public
figure, and summary judgment is appropriate, if evidence presented in opposing
affidavits is of insufficient caliber or quantity to allow rational finder of
fact to find actual malice by clear and convincing evidence. U.S.C.A.
Const.Amend. 1.
[5] CONSTITUTIONAL LAW
Although defendant's state of mind is at issue in libel case covered by New
York Times actual malice standard, that fact alone cannot preclude summary
judgment; First Amendment protection cannot be emasculated by unwillingness on
part of court to grant summary judgment where affirmative evidence of
defendant's state of mind is lacking, and subjective nature of test of
liability cannot create bar to summary disposition of libel suits. U.S.C.A.
Const.Amend. 1.
[5] FEDERAL CIVIL PROCEDURE
Although defendant's state of mind is at issue in libel case covered by New
York Times actual malice standard, that fact alone cannot preclude summary
judgment; First Amendment protection cannot be emasculated by unwillingness on
part of court to grant summary judgment where affirmative evidence of
defendant's state of mind is lacking, and subjective nature of test of
liability cannot create bar to summary disposition of libel suits. U.S.C.A.
Const.Amend. 1.
[6] CONSTITUTIONAL LAW
Actual malice under New York Times standard should not be confused with
concept of malice as evil intent or motive arising from spite or ill will;
speaker's belief in his statements, and even his exaggerations, enhance rather
than diminish likelihood that they are protected by libel attack by First
Amendment, and only where speaker himself lacks conviction, and entertains
serious doubt as to veracity of his statements, is false statement
actionable. U.S.C.A. Const.Amend. 1.
[6] LIBEL AND SLANDER
Actual malice under New York Times standard should not be confused with
concept of malice as evil intent or motive arising from spite or ill will;
speaker's belief in his statements, and even his exaggerations, enhance rather
than diminish likelihood that they are protected by libel attack by First
Amendment, and only where speaker himself lacks conviction, and entertains
serious doubt as to veracity of his statements, is false statement
actionable. U.S.C.A. Const.Amend. 1.
[7] LIBEL AND SLANDER
Malice in sense of hatred or ill-will is often indicative of lack of actual
malice required under New York Times standard, and reckless conduct is not
measured by whether reasonably prudent man would have published statements, or
would have investigated before publishing; however, combination of inadequate
investigation with bias on part of publisher can give rise to inference of
actual malice under New York Times standard.
[8] LIBEL AND SLANDER
Where showing of extreme departure from standard investigative techniques on
part of defendant is made in libel action, bias of reporter becomes relevant
under New York Times standard to explain extreme departure as more than
mere carelessness, rather than purposeful avoidance of truth; however, without
showing of inadequate investigation, bias merely confirms defendant's firmly
held belief in allegedly defamatory statements.
[9] LIBEL AND SLANDER
Court considers statements which are basis of libel action under New York
Times standard individually to determine whether rational finder of fact could
find actual malice by clear and convincing evidence.
[10] LIBEL AND SLANDER
Statement in magazine article that religious group "survives by intimidating
members and critics in a Mafia-like manner" was not made with actual malice
under New York Times standard and was not actionable; magazine relied on
affidavits from former high-ranking members of group, published
articles, interviews and personal experience, and published court
opinions, and none of many sources relied on by magazine was so obviously
incredible that jury could infer from magazine's reliance on source knowledge
of falsity or subjective doubt as to veracity.
[11] LIBEL AND SLANDER
Repetition of another's words does not release one of responsibility under
New York Times actual malice standard if repeater knows that words are
false or inherently improbable, or there are obvious reasons to doubt veracity
of person quoted or accuracy of his reports.
[12] LIBEL AND SLANDER
Statement in magazine article which quoted executive of cult awareness group as
stating that religious organization was "quite likely the most ruthless, the
most classically terroristic, the most litigious and the most lucrative cult
the country has ever seen" was not made with actual malice under New York
Times standard and was not actionable; repetition of statement was not made
with knowledge that statement was false or inherently improbable, and there
were no obvious reasons to doubt executive's veracity.
[13] LIBEL AND SLANDER
Statement in magazine article that journalists, doctors, lawyers, and even
judges who criticize religious group "often find themselves engulfed in
litigation, stalked by private eyes, framed for fictional crimes, beaten up or
threatened with death" was not made with actual malice under New York Times
standard and was not actionable, even though author of article did not have
convincing evidence to link group with many of the strange incidents befalling
persons in conflict with group; there was no evidence that author made
statement with actual malice or that there was obvious reason to doubt sources.
[14] LIBEL AND SLANDER
Statements in magazine article that family blamed religious group for child's
suicide but were afraid to sue, that child's father had investigated group and
believed it was "a school for psychopaths" in which "so-called therapies are
manipulations," and that group sent flowers to child's funeral but that no
staff members attended funeral were not made with actual malice under New
York Times standard and were not actionable; primary source was family of
child, which was not obviously lacking in credibility, statements were not
inherently improbable, and author made thorough investigation.
[15] LIBEL AND SLANDER
Statements in magazine article that as part of scam in which religious group
was involved member of group had been ordered to kill individual and then
commit suicide were not made with actual malice under New York Times
standard and were not actionable; article had numerous sources, including
member of group who was alleged to have received order, and member's story was
not obviously incredible despite member's lack of credibility in some respects.
[16] LIBEL AND SLANDER
Issue of whether statement in magazine article that one source of funds for
religious group was "notorious, self-regulated stock exchange in Vancouver,
British Columbia, often called the scam capital of the world" was made with
actual malice under New York Times standard was for jury in defamation
action.
*639 Morrison Cohen Singer & Weinstein, LLP, New York City (Jonathan W.
Lubell, Jonathan M. Plissner, of counsel), for Plaintiff.
Cahill Gordon & Reindel, New York City (Floyd Abrams, Dean Ringel, of
counsel), for Defendants.
LEISURE, District Judge:
Plaintiff Church of Scientology International ("CSI") brought this
action to recover for damages allegedly suffered from the publication of false
and defamatory statements concerning CSI in the cover story of the May 6, 1991
issue of Time magazine. Defendants Time Warner, Inc., Time Inc. Magazine
Company, and Richard Behar (collectively "Time") move this Court for summary
judgment, pursuant to Federal Rule of Civil Procedure 56, on the grounds
that they lacked *640 actual malice in publishing the article about CSI, an
admitted public figure. See Plaintiff's Response to Defendants' First Set of
Requests for Admission to Plaintiff. For the reasons stated below, defendants'
motion is granted in part and denied in part.
DISCUSSION
[1][2][3][4] "Summary judgment is proper only if, viewing all evidence in
the light most favorable to the nonmoving party, there is no genuine issue of
material fact" as to an essential element of a claim. Buttry v. General
Signal Corp., 68 F.3d 1488, 1492 (2d Cir.1995). A public figure suing for
libel must prove, as one of the essential elements of the claim, that the
defendant published the material with actual malice, i.e., actual knowledge of
its falsity or with serious subjective doubts as to its truth. See New York
Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d
686 (1964); St. Amant v. Thompson, 390 U.S. 727, 731-32, 88 S.Ct. 1323,
1325-26, 20 L.Ed.2d 262 (1968). The First Amendment further requires that the
plaintiff prove actual malice with clear and convincing evidence. See id.
Therefore, "there is no genuine issue if the evidence presented in the opposing
affidavits is of insufficient caliber or quantity to allow a rational finder of
fact to find actual malice by clear and convincing evidence." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202
(1986).
[5] Although a defendant's state of mind is at issue in a libel case covered
by New York Times, that fact alone cannot preclude summary judgment, for
First Amendment protection cannot be emasculated by unwillingness on the part
of a court to grant summary judgment where "affirmative evidence of the
defendant's state of mind" is lacking. A libel suit cannot be allowed to get
to the jury, at enormous expense to the defendant, based on mere assertions of
malice by the plaintiff. Cf. St. Surin v. Virgin Islands Daily News, Inc.,
21 F.3d 1309, 1318 (3d Cir.1994) ("Summary judgment for the publisher is quite
often appropriate because of the difficulty a public official has in showing
'actual malice.' "). Indeed, without judicious use of summary judgment to
dispose of libel suits, "the threat of being put to the defense of a
lawsuit ... may be as chilling to the exercise of First Amendment freedoms as
fear of the outcome of the lawsuit itself." Immuno AG. v. Moor-Jankowski,
74 N.Y.2d 548, 561, 549 N.E.2d 129, 135, 549 N.Y.S.2d 938, 944 (1989) (internal
quotation marks omitted), vacated, 497 U.S. 1021, 110 S.Ct. 3266, 111
L.Ed.2d 776 (1990), adhered to, 77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d
906 (1991), cert. denied, 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713
(1991). Because the freedoms guaranteed by the First Amendment are designed to
ensure that debate, not litigation, is vigorous, the subjective nature of the
test of liability cannot create a bar to summary disposition of libel suits.
[FN1] See McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir.1994) (ruling
that district court's view--that summary judgment was unavailable in
discrimination cases where employer's intent was at issue--was unsupportable).
Indeed, this Court finds little to distinguish silence enforced by oppressive
litigation from "silence coerced by law--the argument of force in its worst
form." Whitney v. California, 274 U.S. 357, 375-76, 47 S.Ct. 641, 648-49,
71 L.Ed. 1095 (1927) (Brandeis, J., concurring).
FN1. In this respect, the Court notes that both debate and litigation have
been vigorous in the case at bar. CSI published an 80-page rebuttal to the
Time article, which it distributed to church members, business leaders, and
political figures. See Memorandum of Law in Support of Defendants' Motion
for Summary Judgment ("Def.'s Memo.") at 3. In addition, CSI published a
series of full-page advertisements in USA Today challenging the article and
Time's accuracy and biases in publishing it. See id.; Affidavit of
Lynn R. Farny ("Farny Aff.") P 16, Exs. 14, 15. The discovery in this case
has been extensive, even though discovery has not yet been directed to the
issue of truth or falsity. For example, Richard Behar, the author of the
article, was deposed for 16 1/2 days over a 12 month period. See Def.'s
Memo. at 4. The submissions to the Court in support of or in opposition to
this motion consist of thousands of pages of memoranda, affidavits, and
exhibits.
[6] In addition, the Court must "consider this case against the
background of a profound national commitment to the principle that debate on
public issues should be uninhibited, *641 robust, and wide-open, and that it
may well include vehement, caustic, and sometimes unpleasantly sharp
attacks." New York Times Co., 376 U.S. at 270, 84 S.Ct. at 720. As quoted
in New York Times,
"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
statement. But the people of this nation have ordained in the light of
history, that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion and right
conduct on the part of the citizens of a democracy."
Id. 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)). Because sharp disagreement
is essential to robust debate about important issues, "[a]ctual malice under
the New York Times standard should not be confused with the concept of
malice as an evil intent or a motive arising from spite or ill will."
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419,
2429, 115 L.Ed.2d 447 (1991). The speaker's belief in his statements, even his
exaggerations, enhances, rather than diminishes, the likelihood that they are
protected from libel attack by the First Amendment. Only where the speaker
himself lacks this conviction, where the speaker entertains serious doubt as to
the veracity of his statements, is the false statement actionable. See St.
Amant, 390 U.S. at 731, 88 S.Ct. at 1325.
[7][8] As a threshold matter, then, the Court considers plaintiff's
assertions that Behar, after publishing an article in Forbes critical of the
church,
targeted the Church with a fixed view of it as a 'destructive cult.' In the
next five years, through the publication of his article in the May 6, 1991
issue of Time, Behar refined his focus--gathering negative information from
Scientology adversaries and proposing anti-Church articles--while never
changing any view about the Church, never accepting anything a Scientologist
said and uniformly ignoring anything positive he learned about the Church.
Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary
Judgment at 2. As noted, malice in the sense of hatred or ill-will is often
indicative of lack of the actual malice required under New York Times, and
therefore would tend to undermine, not support, plaintiff's case. In
addition, "reckless conduct is not measured by whether a reasonably prudent man
would have published, or would have investigated before publishing." St.
Amant, 390 U.S. at 731, 88 S.Ct. at 1325. However, the combination of
inadequate investigation with bias on the part of the publisher can give rise
to an inference of actual malice. See Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 682, 109 S.Ct. 2678, 2693, 105 L.Ed.2d 562 (1989).
With a showing of an extreme departure from standard investigative techniques,
bias of the reporter becomes relevant to explain this extreme departure as more
than mere carelessness--rather as purposeful avoidance of the truth. Plaintiff
therefore devotes much of its opposition to the motion to attempting to
demonstrate Behar's predetermined bias toward the church. However, plaintiff
has failed to demonstrate the correlative circumstance of inadequate
investigation to make its evidence of bias probative of actual malice, rather
than probative of lack thereof. Without a showing of inadequate investigation,
bias merely confirms the publisher's firmly-held belief in the allegedly
defamatory statements.
[9] With these principles in mind, the Court considers each allegedly
libelous statement individually to determine whether a rational finder of fact
could find actual malice by clear and convincing evidence. See Tavoulareas
v. Piro, 817 F.2d 762, 794 (D.C.Cir.) (en banc ) ("[D]efamation plaintiffs
cannot show actual malice in the abstract; they must demonstrate actual malice
in conjunction with a false defamatory statement." (emphasis in original)),
cert. denied, 484 U.S. 870, 108 S.Ct. 200, 98 L.Ed.2d 151 (1987).
*642 A. Statements Set Forth at P 40
Paragraph 40 of the complaint sets forth several statements alleged to be
false and defamatory. (The text of the sentences as they appear in the article
is set forth below; the portions quoted in the complaint are underlined.)
1. "In reality the church is a hugely profitable global racket that survives
by intimidating members and critics in a Mafia-like manner."
2. "Says Cynthia Kisser, the [Cult Awareness] network's Chicago-based
executive director: 'Scientology is quite likely the most ruthless, the most
classically terroristic, the most litigious and the most lucrative cult the
country has ever seen. No cult extracts more money from its members.' "
3. "Those who criticize the church--journalists, doctors, lawyers and even
judges--often find themselves engulfed in litigation, stalked by private eyes,
framed for fictional crimes, beaten up or threatened with death."
1. Mafia-Like Intimidation
[10] Time relied on many sources as the basis for its belief that "the
church ... survives by intimidating members and critics in a Mafia-like
manner." None of these sources is so obviously incredible that a reasonable
jury could infer from Time's reliance on them knowledge of falsity or
subjective doubt as to veracity. See St. Amant, 390 U.S. at 732, 88 S.Ct.
at 1326; cf. id. ("Professions of good faith will be unlikely to prove
persuasive, for example, where a story is fabricated by the defendant, is the
product of his imagination, or is based wholly on an unverified anonymous
telephone call."). Compare Harte-Hanks, 491 U.S. at 691, 109 S.Ct. at 2697
("The hesitant, inaudible, and sometimes unresponsive and improbable tone of
Thompson's answers to various leading questions raise obvious doubts about her
veracity."). On the contrary, Behar relied on affidavits from former high-
ranking Scientologists, newspaper and periodical articles, interviews and
personal experience, and published court opinions, often issued after the
benefit of adversarial presentation of testimony, which supported his professed
belief that CSI intimidated critics and members. See Affidavit of Richard
Behar ("Behar Aff.") PP 28-61. The Court finds that based on this evidence, no
reasonable jury could find that CSI had proven by clear and convincing evidence
that Time either knew or entertained serious doubts that the statement was
false.
2. Most Ruthless, Classically Terroristic Cult
[11][12] This statement appeared in the article in the form of a
quotation from Cynthia Kisser, executive director of the Cult Awareness
Network. "Repetition of another's words does not release one of responsibility
if the repeater knows that the words are false or inherently improbable, or
there are obvious reasons to doubt the veracity of the person quoted or the
accuracy of his reports." Goldwater v. Ginzburg, 414 F.2d 324, 337 (2d
Cir.1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695
(1970). Based on the material supporting Behar's statement regarding Mafia-
like intimidation, see Behar Aff. PP 28-61; see also id. PP 62-67, Behar's
repetition of Kisser's statement was not done with knowledge that the statement
was false or inherently improbable. Nor are there obvious reasons to doubt
Kisser's veracity. There is no doubt that her views are deeply opposed to
CSI's views, and each likely regards the other's conduct as reprehensible if
not criminal, see Farny Aff. P 98, but such sharp disagreement and Kisser's
obvious antagonistic relationship with Scientology does not amount to an
obvious reason to doubt her veracity. On the contrary, as executive director
of an organization dedicated to studying so-called cults, her judgment as to
CSI's ruthlessness and terroristic practices likely carried credence with
Behar. See id. P 62. The Court therefore finds that a reasonable jury
could not find that plaintiff had demonstrated actual malice on the part of
Time in publishing this statement by clear and convincing evidence.
3. Journalists, Doctors, Lawyers, and Judges Framed, Beaten Up, or Threatened
with Death
[13] In light of Behar's beliefs regarding his own experiences with
Scientology, the *643 admitted harassment of Paulette Cooper by
Scientology's Guardian's Office (which has been disbanded), and the other
sources relied on by Behar, see Behar Aff. PP 85-93, the Court finds no
evidence that Behar made the statement regarding journalists with actual
malice. Similarly, there are not "obvious reasons to doubt" Behar's sources
for his statement regarding doctors, lawyers, and judges. See St. Amant,
390 U.S. at 732, 88 S.Ct. at 1326. Although Behar does not have convincing
evidence to link CSI with many of the strange incidents befalling these groups
of people in conflict with Scientology, that fact alone does not allow a
reasonable jury to conclude that Behar entertained doubts as to the veracity of
his statement that these incidents are linked to CSI. Compare id. at 732,
88 S.Ct. at 1326 (good faith unlikely where story is fabricated by defendant,
based on his imagination, or based on unverified anonymous telephone call).
Therefore, the Court finds that no reasonable jury could find by clear and
convincing evidence that Time published the above statement with actual malice.
B. Statements Set Forth at P 58
CSI challenges the following as false and defamatory:
"THE LOTTICKS LOST THEIR SON, Noah, who jumped from a Manhattan hotel
clutching $171, virtually the only money he had not yet turned over to
Scientology. His parents blame the church and would like to sue but are
frightened by the organization's reputation for ruthlessness.
"His death inspired his father Edward, a physician, to start his own
investigation of the church. 'We thought Scientology was something like Dale
Carnegie,' Lottick says. 'I now believe it's a school for psychopaths. Their
so-called therapies are manipulations. They take the best and brightest people
and destroy them.'
"It was too late. 'From Noah's friends at Dianetics' read the card that
accompanied a bouquet of flowers at Lottick's funeral. Yet no Scientology
staff members bothered to show up."
[14] The primary sources relied on by Behar for these statements are the
parents of Noah Lottick. The Lotticks affirmed the accuracy of each statement
in the article. See Reply Memorandum of Law in Further Support of Defendants'
Motion for Summary Judgment ("Def.'s Reply") at 12. Furthermore, the Lotticks
are not obviously lacking in credibility, and the statements are not inherently
improbable. Nevertheless, Behar made a thorough investigation of this aspect
of his article by discussing it with various persons who knew Noah. Although
Behar can be criticized for not interviewing Fred Lemons, an active
Scientologist, asserted Scientology staff member, and former roommate of Noah
Lottick, this omission is not such that it might raise an inference of
purposeful avoidance of the truth. Cf. Harte-Hanks, 491 U.S. at 682, 109
S.Ct. at 2693 ("[W]hile denials coming from Connaughton's supporters might be
explained as motivated by a desire to assist Connaughton, a denial coming from
[the uninterviewed] Stephens would quickly put an end to the story."). Any
information to be gleaned from Lemons might be expected to be similar to,
though less authoritative than, information that might be obtained from the
director of the Scientology Dianetics Center, whom Behar twice attempted to
contact. See Behar Aff. P 106. In short, besides minor omissions in
investigation, from which no inference of purposeful avoidance of the truth
could reasonably be drawn, (even combined with Behar's alleged bias, see
supra ) CSI has not produced evidence such that a reasonable jury could find
by clear and convincing evidence that Behar published the statements with
actual malice. On the contrary, as reflected in Behar's notes from one of his
conversations with the Lotticks, it appears that Noah had spent the money to
which he had access, that Dr. Lottick had concluded that Scientology therapies
were manipulations, and that no Scientology staff members attended the
funeral. [FN2] See Affidavit of Jonathan W. Lubell, Esq., at Ex. 41.
Therefore, the Court *644 finds that no reasonable jury could find by clear
and convincing evidence that Time published the above statement with actual
malice.
FN2. Although CSI asserts that Fred Lemons is a staff member, there is no
evidence that Behar knew this fact. In addition, if Behar were trying to
avoid this fact, he would not have contacted the Scientology center.
C. Statements Set Forth at P 45
Of the statements set forth at paragraph 45 of the complaint, pursuant to this
Court's ruling of November 23, 1992, only the following remains at issue:
"Scientology denies any tie to the Fishman Scam, a claim strongly disputed by
both Fishman and his longtime psychiatrist, Uwe Geertz, a prominent Florida
hypnotist. Both men claim that when arrested, Fishman was ordered by the
church to kill Geertz and then do an 'EOC,' or end of cycle, which is church
jargon for suicide."
[15] Behar relied on Steven Fishman, Uwe Geertz, Fishman's
psychologist, Marc Nurik, Fishman's former counsel, Vicki Aznaran, a former
Scientologist, and Robert Dondero, the assistant United States Attorney who
prosecuted Fishman for stock fraud. Although Fishman in many respects is not
highly credible, based on the corroboration of aspects of his claims by other
sources, this Court finds that his claims are not obviously incredible. Cf.
St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326 (good faith unlikely where
unverified reliance on obviously incredible source). Specifically, Behar
relied on Geertz's evaluation of Fishman's claims, Vicki Aznaran's
corroboration of Fishman and Geertz's claims regarding the length of Fishman's
involvement with the church, the depth of knowledge of Scientology that Fishman
demonstrated, and the corroboration of certain claims by Robert Dondero. The
fact that Dondero did not believe Fishman's claims does not undermine Behar's
belief because Dondero was at the time prosecuting Fishman, and that
prosecution would be undermined by accepting Fishman's account of Scientology's
involvement with Fishman. Cf. Harte-Hanks, 491 U.S. at 682, 109 S.Ct. at
2693 (denials coming from interested witnesses would not cause reporter to
question veracity of allegations). Therefore, the Court finds that no
reasonable jury could find by clear and convincing evidence that Time published
the above statement with actual malice.
D. Statements Set Forth in P 52
[16] Of the statements set forth at paragraph 52 of the complaint, pursuant
to this Court's ruling of November 23, 1992, only the following remains at
issue:
"One source of funds for the Los Angeles-based church is the notorious, self-
regulated stock exchange in Vancouver, British Columbia, often called the scam
capital of the world."
The Court finds that a reasonable jury could find by clear and convincing
evidence that Time published the above statement with actual malice.
CONCLUSION
For the reasons stated above, defendants' motion for summary judgment is
HEREBY DENIED as to the statement set forth at paragraph 52 of the complaint,
and HEREBY GRANTED as to all other statements.
SO ORDERED.