FINDINGS OF FACT AND CONCLUSIONS OF LAW
EDWARD WEINFELD, District Judge.
A monkey's flight into space has landed in this Court as a libel suit because of its diversity jurisdiction. It is the aftermath of an experimental trip in which a fourteen pound monkey nicknamed "Bonny, The Space Monkey" was propelled into earth orbit on June 28, 1969. Bonny was strapped to a couch within a small space capsule. Its bonds permitted movement of its arms and head and slight movement of its legs. The animal was heavily instrumented with several electrodes inserted into its brain, devices for measurement of blood pressure, heart rate and respiration attached, and a catheter inserted in its urinary tract. The trip, planned to last thirty days and designed to test the effect of prolonged weightlessness upon the monkey's sleep patterns and certain other physiological functions, came to a premature and ill-fated end when after eight days in space the monkey's condition began to deteriorate rapidly and it was brought to earth, where it soon died.
The plaintiff is a doctor and a professor engaged in medical research; he is the director of the Space Biology Laboratory of the Brain Research Institute at the University of California. He is a consultant to the National Aeronautics and Space Administration (NASA), which sponsored the trip; he was intimately involved in the planning and execution of the Bonny mission and prepared Bonny for the flight.
The defendants are Eleanor Seiling and MacDonald White, two ladies with rather strong views in opposition to the use of animals for experimentation purposes. They are founders, and respectively the unpaid president and vice president, of the defendant United Action for Animals, Inc. (UAA), a national nonprofit organization dedicated to the welfare of animals, with a membership of approximately 2,500.
Within a month after the flight, the defendants, in July 1969, published and caused to be distributed to the membership of UAA and to about 500 humane societies two documents entitled "Call to Action" and "UAA Report — Special Edition — The Ordeal of Bonny, the Space Monkey." The first urged the readers to write to their congressmen to "insist" that funds for animal experimentation be cut off. The second, the Report, consisted of fourteen printed pages and contained photographs and a commentary on the Bonny flight. The specific statements in those two publications
Thus, in general, the publications questioned plaintiff's competence in the preparation of the Bonny flight, and charged that the Bonny experiment was cruel and abusive to animals; that it was "pure savagery"; and that plaintiff had a long history of abuse to animals, having "performed a wide variety of exceedingly cruel animal experiments." Plaintiff alleges that the statements were false and defamatory, published with actual malice, with knowledge that such statements were false or with the deliberate and malicious purpose and intent to injure him and to deprive him of his good name and reputation as an individual and a professional researcher. He seeks compensatory damages in the
The defendants originally denied the statements were defamatory in reference to plaintiff; additionally, they pleaded affirmative defenses of truth, the privilege of fair comment and constitutional protection under the First and Fourteenth Amendments.
Upon the trial, the claim of alleged defamatory matter was narrowed. Plaintiff withdrew his allegations as to the statements designated above as subparagraphs (e), (f) and (i). The defendants conceded that the remaining statements complained of, with the exception of subparagraphs (c) and (j), were defamatory of plaintiff. As to the latter paragraphs, the defendants, while not retreating from their original position that they were not defamatory, acknowledged that a reasonable finder of fact could conclude they tended to derogate plaintiff's reputation. The issues to be decided by the Court have been further narrowed by the acknowledgment that plaintiff was a public figure and that the flight was a matter of public interest. Indeed, this could not be challenged. The flight was widely publicized and received much attention by all the news media; it drew marked differences of opinion; many questioned the expenditure of ninety-two million dollars of government funds in the light of what they termed more pressing and desirable domestic and social welfare programs. The plaintiff's status placed upon him, under the rule established by New York Times Co. v. Sullivan,
The plaintiff's contention that there is a category of libel which is beyond constitutional protection, as plaintiff terms it, "private libel," is based upon dictum in Mr. Justice Harlan's plurality opinion in Curtis Publishing Co. v. Butts,
I find this attempt to engraft an exception to the constitutional privilege, so strongly enunciated under New York Times and its progeny, without substance for a number of reasons. First, the Supreme Court, as plaintiff's counsel recognize, has never ruled directly on this issue. Moreover, considering the First Amendment basis of the New York Times decision and that Court's recognition "of a 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 on government and public officials."
Second, Dr. Adey, in view of his official status with NASA and his leadership in the preparation of Bonny for the flight, clearly comes within the definition
Finally, as plaintiff's counsel conceded in response to the Court's inquiry, if these defendants, instead of distributing the publication to their own membership, urging them to write to members of Congress, had advertised in a newspaper or broadcast an appeal to the public to do so, they would qualify for the constitutional protection. It would indeed be a strange and anomolous doctrine to deprive them of that protection because they limited the "Call to Action" to fellow members interested in animal welfare instead of broadcasting it to the general public. In sum, the Court holds that since plaintiff was a public figure and the publications involved matters of public concern and controversy, defendants are entitled to rely upon the defense of constitutional protection under the First Amendment.
Accordingly, we turn to the basic issues. The task of the Court as the fact finder has been simplified by counsel, who with a fine professional attitude concurred in the view that the Court first consider whether plaintiff has carried his burden on the "knowing or reckless-falsity" issue by that "clear and convincing proof"
A review of all the relevant trial evidence, including the demeanor of witnesses, compels a finding that the plaintiff has failed to sustain his burden of proof. The evidence does not establish with "convincing clarity" that the defendants entertained serious doubts as to the truth of their statements or that they had "a high degree of awareness of their probable falsity." To the contrary, they asserted their continuing belief that the statements in the UAA publications were true and the evidence supports a finding that it was a sincere and genuinely held view. This belief was not drawn out of thin air or a product of their imaginations or contrived as a defense to plaintiff's charge. The individual defendants have been associated with what is referred to as the humane movement for many years and the UAA was organized under their sponsorship in 1967 to disseminate information of alternatives to the use of animals in research. Simply stated, they are opposed to the use of animals in reasearch based upon a firm belief that effective alternative methods of research are available. Literature and bulletins pertaining to the subject of the defendants' main interest are distributed fairly regularly to the UAA's approximately 2500 members and about 500 humane societies. The defendant Seiling, in pursuit of her interest in the welfare of animals, has through the years collected articles written and published by various experimenters, including a number by Dr. Adey. The collection includes many papers on alternative methods to the use of animals for experimentation, such as physical and mathematical modeling, tissue and culture techniques and modern and sophisticated instruments. Some of the material comes from the United States Department of Commerce which issues technical journals; also from medical, scientific and technical articles on animal and non-animal techniques.
The articles here at issue were prepared in the main by the defendant Seiling with the research and editorial assistance of the defendant White. In large measure, they relied upon their general store of information contained in the accumulated library material. A principal thrust of the publications was that Bonny had suffered and died in vain — it was directed against experimenters' adherence to medicine's age-old techniques and tradition in the use of animals for research instead of the use of more modern and technical methods. In substance, they charged that countless other animals will continue to suffer and die because, as defendants stated: "[The] nation's military-space research on biological systems is being done by animal experimenters using outdated methods instead of by scientists educated to use advanced techniques." The statements in the publications as to Dr. Adey were subjective conclusions based upon substantially accurate information on the "technical" aspects of the Bonny experiment, and statements by persons in the same and related fields of study as the plaintiff, as well as articles written or co-authored by Dr. Adey during the period from 1956-1965. We need only examine brief excerpts, cited below, of those articles by Dr. Adey to appreciate the impact upon, and the reaction of, the defendants or the average layman concerned with the welfare of animals, after reading them:
In addition to the foregoing, the accounts of the Bonny experiment describe the surgical implantation of electrodes into the monkey's brain and catheters into its main arteries, inserted through its upper legs.
Men in public life, whether they be judges, legislators, executives or scientists, must accept as an incident of their service harsh criticism, ofttimes unfair and unjustified — at times false and defamatory — and this is particularly so when their activities or performance may be the subject of differing attitudes and stir deep controversy. While it is not pleasant to be the target of false and defamatory charges, officials must be "able to thrive in a hardy climate,"
Judgment may be entered in favor of the defendants in accordance with the foregoing.
The foregoing shall constitute the Court's Findings of Fact and Conclusions of Law.
"The courts have also, especially in libel cases, investigated the plaintiff's position to determine whether he has a legitimate call upon the court for protection in light of his prior activities and means of self-defense. . . . We note that the public interest in the circulation of the materials here involved, and the publisher's interest in circulating them, is not less than that involved in New York Times. And both Butts and Walker commanded a substantial amount of independent public interest at the time of the publications; both, in our opinion, would have been labeled `public figures' under ordinary tort rules. . . . Butts may have attained that status by position alone and Walker by his purposeful activity amounting to a thrusting of his personality into the `vortex' of an important public controversy, but both commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able `to expose through discussion the falsehood and fallacies' of the defamatory statements. . . ." [Emphasis added.] See also Time, Inc. v. Hill, 385 U.S. 374, 391, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).