The CHURCH OF SCIENTOLOGY OF CALIFORNIA a religious corporation, and Reverend
Robert H. Thomas, Plaintiffs,
v.
DELL PUBLISHING CO., INC., a New York corporation, and George Malko,
Defendants.
No. C-70-2089.
United States District Court,
N.D. California.
Aug. 3, 1973.
As Corrected Sept. 17, 1973.
Defamation action was brought against publisher and author of book on
scientology by a corporation and an individual engaged in proselytizing the
religion of scientology. On a defense motion for summary judgment, the
District Court, Schnacke, J., held that a material issue of fact on the
question of actual malice existed in view of the admitted republication of the
book in paperback after defendants' receipt of a letter from an attorney for
plaintiffs demanding a retraction, accompanied by a signed statement of one of
the persons referred to in the book denying the truth of certain statements
about him therein, precluding entry of summary judgment.
Motion denied.
[1] LIBEL AND SLANDER
Privilege laid down in the "New York Times" line of defamation cases is
applicable to permanent publications such as books, as well as to newspapers,
magazines, radio and television.
[2] FEDERAL CIVIL PROCEDURE
In defamation action brought against publisher and author of a book on
scientology by a corporation and an individual engaged in proselytizing the
religion of scientology, a material issue of fact on the question of actual
malice existed in view of the admitted republication of the book in paperback
after defendants' receipt of a letter from an attorney for plaintiffs demanding
a retraction, accompanied by a signed statement of one of the persons referred
to in the book denying the truth of certain statements about him therein,
precluding entry of summary judgment. Fed.Rules Civ.Proc. rule 56, 28
U.S.C.A.; West's Ann.Cal.Civ.Code, ss 48a, 3425.3.
[3] LIBEL AND SLANDER
If a republication of an allegedly defamatory article is found to be malicious,
that can be evidence of maliciousness in the original publication. West's
Ann.Cal.Civ.Code, ss 48a, 3425.3.
[4] LIBEL AND SLANDER
On the question of actual malice, prepublication denials and demands for
retraction are not decisive either way, but are for the trier of fact to
determine under the circumstances as part of the overall questions of knowledge
and recklessness.
*768 Robert B. Ingram, Belli, Ashe, Ellison & Choulos, San Francisco, Cal.,
for plaintiffs.
John A. Sutro, Jr., Pillsbury, Madison & Sutro, San Francisco, Cal., for
defendants.
OPINION AND ORDER
SCHNACKE, District Judge.
In this defamation action, defendants have moved for summary judgment. The
Court has concluded that the motion must be denied but deems it advisable to
discuss some of the legal issues for guidance in future phases of the case.
Defendants are the publisher and author, respectively, of a book entitled
Scientology: The Now Religion, originally published in a hardcover edition,
upon which the present complaint is founded, and later reissued in paperback
following the commencement of this action, a point which will be discussed
below. Plaintiffs are a corporation and an individual engaged in
"proselytizing the religion of Scientology."
In connection with its consideration of the present motion, the Court has read
the book in question. In general terms, it is a work of the expose type, its
thesis being that "Scientology" is a pseudoreligion concocted by one Lafayette
Ronald Hubbard, originally a science-fiction writer, but now claiming
credentials as a religious founder and teacher; that Hubbard concocted
Scientology primarily for commercial purposes (which have been most
successfully achieved despite running battles with governmental officials in
this country and abroad); and that it is no more than a hodgepodge of (1)
scientific gobbledygook with borrowings from Freudian psychology, (2) other
scientific and pseudoscientific sources, and (3) fantasies of the type familiar
to devotees of science-fiction-all decked out in religious guise solely to
attract the gullible and achieve certain hoped-for legal advantages.
Whether or not the book is false or defamatory of plaintiffs or others is not
the issue before the Court; for present purposes it may be assumed to be.
The basic issue raised by defendants' motion is whether, under undisputed
facts before the Court, defendants are entitled to judgment as a matter of
law. F.R.Civ.P., Rule 56.
This turns in large measure upon whether the undisputed facts disclose that
the publication is privileged under the rules laid down in New York Times
Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. *769 710, 11 L.Ed.2d 686 (1964) and
subsequent controlling decisions, only a few of which need be discussed here.
[1] Plaintiffs at the outset argue that the privilege is inapplicable, not
because the subject matter is not one of "public interest", Time, Inc. v.
Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); Rosenbloom v.
Metromedia, 403 U.S. 29, 41-42, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), but
because the privilege applies only to news media-newspapers, magazines, radio
and television-and not to more permanent publications such as a book.
Plaintiffs concede that the privilege was afforded to a book in Gordon v.
Random House, Inc., 349 F.Supp. 919 (E.D.Pa.1972), apparently the only case
following New York Times involving a book, but argue that the Court there
"did not face the issue." However, in granting summary judgment for defendant,
that Court necessarily assumed, although it did not specifically so state, that
the book there involved was privileged under the standards of the New York
Times doctrine.
Moreover, the distinction urged by plaintiffs is not appealing one. The
Times line of cases rests upon the essential freedom of public discussion
enshrined in the First Amendment and not upon the form such discussion may take
or the mere expediency of getting news reports to the public promptly. [FN1]
Historically, books have played at least as vital a role in the discussion of
public issues as the other media.
FN1. The need for speed in news reporting may bear upon the issue of
investigative sufficiency. Cf. Curtis Publishing Co. v. Butts, 388 U.S.
130, 157, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), rehearing denied, 389
U.S. 889, 88 S.Ct. 11, 19 L.Ed.2d 197 (1967).
We therefore hold that the privilege laid down in the New York Times line
of cases is applicable here.
The nature of, and limitations upon, the privilege are stated in the New
York Times case as follows:
"The constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was made
with 'actual malice'-that is, with knowledge that it was false or with reckless
disregard of whether it was false or not." (Pp. 279-280 of 376 U.S., p. 726
of 84 S.Ct.).
The type of persons and subject matter against which the privilege applies
have been broadened in later cases, so that it now applies generally to matters
of "public interest". See cases cited above. But the limitations or
qualifications have remained the same, and have been repeated a number of times
by the Court. E. g., St. Amant v. Thompson, 390 U.S. 727, 728, 88 S.Ct.
1323, 20 L.Ed.2d 262 (1968).
It is clear that the concept of "actual malice" includes what follows the
quoted term. Thus, the issue is not whether there was ill will or animosity,
but only whether the defendant acted with "knowledge" of the falsity of the
published matter or with "reckless disregard of whether it was false or not."
Accordingly, the cases have generally boiled down to a consideration of the
circumstances leading up to the publication, the investigation that preceded it
and the like. In most of the cases, in fact, the principal issue is the
nature, extent and reasonableness of the prepublication investigation.
The requirements of such investigation are extensively discussed in Curtis
Publishing Co., supra, and other cases.
[2] The background of the writing and publication of Scientology: The Now
Religion is the subject of numerous affidavits, interrogatories, depositions
and other matters we have considered. After such consideration, the Court is
not convinced that no triable issues are presented.
It would not be profitable to review the material in detail. We shall focus
*770 on only one matter that is of both legal and factual importance, that
of the effect the trier of the fact might give to the admitted republication of
the book in paperback after defendant's receipt of a letter from one of the
attorneys for plaintiffs demanding a retraction, accompanied by a signed
statement of one of the persons referred to in the book (not a party hereto)
denying the truth of certain statements about him in the book.
[3] Defendants argue that these matters should be disregarded, since the
present complaint is founded on the hardcover edition and not the paperback.
But it is not claimed that the latter differed any way other than format or
that receipt of the above items led defendants to make any additional
investigation as to the truth of the statements made in the book. If the
republication is found to be malicious, that can be evidence of maliciousness
in the original publication.
The effect of republication after a demand for retraction or claim of falsity
by the person allegedly defamed has not been authoritatively determined under
the New York Times standards. [FN2]
FN2. California has adopted the Uniform Single Publication Act, Civil
Code s 3425.3, and a statute pertaining to damages recoverable in
retraction cases, Civil Code s 48a. But these do not bear directly, as
we see it, on the present motion, which raises different issues.
In New York Times, supra, at p. 286 of 376 U.S., at p. 729 of 84 S.Ct.,
the Court said:
"The Times' failure to retract upon respondent's demand, although it later
retracted upon the demand of Governor Paterson, is likewise not adequate
evidence of malice for constitutional purposes."
The Court reserved, however, the question "Whether or not a failure to retract
may ever constitute such evidence4)4B"B" (Id.)
In his concurring opinion in Curtis Publishing, supra, Warren, C. J.,
referred to the failure to make additional inquiries, after receipt of
prepublication denials, as a factor among others supporting a jury finding of
malice. [FN3]
FN3. The main opinion, by Harlan, J., ruled that the jury instructions
regarding "malice", while given under a state statute dealing with punitive
damages, essentially complied with the New York Times standards. Pp.
156-157 of 388 U.S., 87 S.Ct. 1975.
[4] Lower court decisions fail entirely to answer the question of
retraction or republication left open in New York Times. Morgan v. Dun &
Bradstreet, Inc., 421 F.2d 1241 (5th Cir. 1970) and Diplomat Electric, Inc.
v. Westinghouse Electric Sup. Co., 430 F.2d 38 (5th Cir. 1970), relied upon by
plaintiffs, were not constitutional cases, but cases involving the privilege of
confidential communications to interested parties. The Supreme Court of
Minnesota seems to have conflicting views. Compare Rose v. Koch, 278 Minn.
235, 154 N.W.2d 409, 428 (1967), with Mahnke v. Northwest Publications,
Inc., 280 Minn. 328, 160 N.W.2d 1, 10 (1968). The better view seems to us to
be that of the latter case, that prepublication denials and demands for
retraction are not decisive either way, but are for the trier of fact to
determine under the circumstances as a part of the overall questions of
knowledge and recklessness.
The existence of this element, alone, therefore, raises a disputed issue of
fact which precludes the granting of summary judgment.
The motion for summary judgment is denied.