DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; JUDGMENT TO BE ENTERED FOR DEFENDANTS; TERMINATION ENTRY
RICE, District Judge.
On December 21, 1979, the National Rifle Association (NRA) instituted the present defamation action against Dayton Newspapers, Inc., a corporation which publishes the Dayton Daily News, and against several employees of the Dayton Daily News,
According to the Complaint, the NRA is a non-profit New York corporation, "dedicated to protecting and defending the inalienable right of the people to keep and bear arms as set forth in the Second Amendment to the United States Constitution."
Based on the publication of this editorial, the NRA initiated the present action, alleging in Count I of the Complaint that the Defendant Dayton Newspapers, Inc., and its employees had printed certain false statements of fact with knowledge of their falsity and in reckless disregard of their falsity. Specifically, the following "facts" are alleged to be untrue:
Complaint, Doc. # 1, ¶s 16 and 18. The Second Count of the Complaint repeats the above allegations in connection with the purported liability of Springfield Newspapers, Inc., and its employees for the verbatim republication of the NRA editorial in
The Defendants filed an Answer to the Complaint on January 23, 1980, and subsequently, on January 30, 1981, filed the motion for summary judgment which is presently under consideration. Defendants have submitted an extensive memorandum in support of their summary judgment motion, and have attached thereto various affidavits and exhibits. See, Doc. # 10 and Ex. A-H. On March 11, 1981, Plaintiff filed a memorandum in opposition to the Defendants' motion for summary judgment, and included therewith the affidavits of four officers employed by the NRA. See, Doc. # 14, Ex. 1-4. Finally, on March 23, 1981, Defendants submitted a reply memorandum responding to those points raised by Plaintiff's memorandum, and the Court then took the matter under advisement. It should be noted that in ruling upon the Defendants' motion, the Court has considered not only the materials referred to above, but has also examined the depositions of various employees of the Plaintiff and the Defendants, all of which have been properly filed herein as directed by Fed.R. Civ.P. 30(f).
Defendants predicate their request for summary judgment upon two grounds. First, Defendants contend that Plaintiff cannot, based on the undisputed facts disclosed herein, meet the exacting requirements of proof established by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (New York Times) and its progeny, that is, of demonstrating that the statements in question were made with "`actual malice.'" Id. at 280, 84 S.Ct. at 726. As a second and independent basis for summary judgment, Defendants claim that the editorial involved in this case was absolutely privileged as an expression of pure opinion.
In response to the arguments advanced by Defendants, Plaintiff contends initially that while the NRA editorial is phrased as an opinion, it contains allegations and inferences of fact which are false, and which, therefore, are not entitled to protection. Plaintiff next suggests that summary judgment is particularly inappropriate in libel actions where matters pertaining to the defendant's state of mind are placed in issue. As a final matter, Plaintiff sets forth various "facts," primarily those contained in the editorial itself, which allegedly justify permitting this case to proceed to trial on the question of actual malice.
In answer to the points presented by Plaintiff, the Defendants claim, "without conceding that there are any facts—disclosed, undisclosed, or otherwise—expressed or inherent in the editorial opinion," Doc. # 17 at 6, that:
Id. Based on this assumed, notorious, and non-defamatory fact regarding the NRA's
Each of the arguments advanced by the parties will be addressed in greater detail below. However, based on the undisputed facts presented herein, and the applicable legal authority, the Court has concluded that the Defendants' motion for summary judgment is well-taken, and must be granted.
A. Applicable Summary Judgment Standard
As was previously noted, Plaintiffs contend, based on the Supreme Court decision in Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979) (Hutchinson), that summary judgment in libel actions may be entirely inappropriate, and that resolution of issues related to a defendant's state of mind should be left to the jury. In Hutchinson, the Supreme Court did not directly address the propriety of granting summary judgment in libel actions, because that issue was not before the Court. The facts recounted by the Supreme Court indicate that in April, 1979, Senator Proxmire awarded a "Golden Fleece of the Month Award" to several government agencies which had given Hutchinson approximately $500,000 over a period of seven years to investigate, inter alia, "an objective measure of aggression, concentrating upon the behavior patterns of certain animals, such as the clenching of jaws when they were exposed to various aggravating stressful stimuli." Id. at 115, 99 S.Ct. at 2678. Based on the publication of certain remarks by Proxmire in the Congressional Record, in a press release and in a newsletter,
The Supreme Court did, however, in passing, note the District Court's comment to the effect that "in determining whether a plaintiff had made an adequate showing of `actual malice,' summary judgment might well be the rule rather than the exception." Id. at 120, 99 S.Ct. at 2680.
Id. at n. 9.
Following the Hutchinson decision, the Sixth Circuit adopted the Second Circuit's position, based on its interpretation of Hutchinson, that "there is no rule which favors either granting or denying motions for summary judgment in defamation cases." Schultz v. Newsweek, Inc., 668 F.2d 911, 917 (6th Cir.1982), following Yiamouyiannis v. Consumers Union, 619 F.2d 932 (2d Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46 (1980) (Yiamouyiannis). Thus, contrary to Plaintiff's contention, summary judgment is not precluded, or even disfavored merely because the state of mind of the Defendants has been placed in question.
While the Sixth Circuit did not set forth a particular standard to be utilized in evaluating motions for summary judgments in libel actions, see, 668 F.2d at 917, the Court in Yiamouyiannis fashioned the following rule, which encompasses both the general Rule 56 criteria and the unique standard of proof applied in defamation actions:
619 F.2d at 940 (citations omitted) (emphasis in original).
Because the Sixth Circuit agreed with the summary judgment approach taken in Yiamouyiannis, and because the above standard appears to correctly combine the dictates of Rule 56 with those characteristics peculiar to libel actions, this Court concludes that it may appropriately apply the foregoing summary judgment criteria in ruling upon the outstanding motion for summary judgment. Having found no automatic bar which would preclude the issuance of summary judgment herein, the Court now turns to consideration of whether, under the circumstances of the present case, and under the application of the criteria outlined in Yiamouyiannis and other pertinent authority, summary judgment may appropriately be granted to Defendants.
B. Protection of Editorial As a Statement of Opinion
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (Gertz), the Supreme Court stated that:
Id. at 339-340, 94 S.Ct. at 3006 (footnote omitted). As was previously indicated, Defendants contend that the editorial published in the Dayton Daily News and reprinted in the Springfield Daily News is not actionable
The Sixth Circuit observed in Orr v. Angus-Press Co., 586 F.2d 1108 (6th Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979) (Orr) that based on Gertz, "[i]t is now established as a matter of constitutional law that a statement of opinion about matters which are publicly known is not defamatory." Id. at 1114. In determining whether the statements in Orr were protected as statements of opinion, the Sixth Circuit utilized the formulation of the Gertz principle contained in the Restatement (Second) of Torts § 566 (1977):
The Restatement itself distinguishes between pure opinion and opinion based on fact. With respect to pure opinion, the Restatement indicates that:
Restatement (Second) of Torts § 566 comment b (1977) (emphasis added).
In the present case, the notorious, assumed facts upon which the editorial is predicated are those suggested by Defendants, i.e., that the NRA is opposed to registration of firearms and gun control, and has lobbied extensively in support of its position at various levels of state and federal government. The undisputed facts herein indicate that the NRA itself concedes that its position on gun control is "common knowledge." Knox deposition, p. 69. Harlon Carter, present Executive Vice-President of the NRA and former Executive Director of the NRA Institute for Legislative Action (ILA), stated with regard to the NRA position on gun control that:
Carter deposition, pp. 44-45.
In order to further concentrate on political issues, the NRA established the Institute
In addition to commenting on the above matters, Carter detailed various appearances he had made before legislative groups, see, id. at 6-7, and noted that the ILA engaged in political lobbying, both through employees who were registered as lobbyists, and through an outside lobbying group, Timms & Co., which represented the NRA. See, id. at 20-21. In Carter's opinion, the ILA, as of the time of his deposition, was performing "a good job" of influencing legislation on the gun control issue. Id. at 14. Further, C. Neil Knox, the executive director of the ILA, and chairman of the NRA Political Victory Fund, indicated that key races of political candidates who were opposed to gun control were selected, and those candidates were supported, within the limits of the federal election laws, by contributions, and by other actions, including, inter alia, the placement of ads in newspapers and on radio. Knox deposition, pp. 4, and 95-97.
Based on the preceding discussion of undisputed facts, it is apparent that the NRA espouses an acknowledged and well-known position on gun control, and actively advocates its views in various arenas of legislative and political activity. Placed in this context of notorious facts, the Dayton Daily News editorial is nothing more than an expression of opinion regarding the NRA's not surprising opposition to a political appointee who favored increased controls on weapons. While the editorial is taunting in tone and is permeated with sarcasm and colorful expressions, "the newspaper's `opinion' about ... [the NRA's opposition to Norval Morris and the effect of the continued availability of guns] cannot be made the basis of a libel suit against the newspaper." Orr, 586 F.2d at 1115.
The NRA concedes that pure opinion is protected, but asserts that the editorial contains false statements of fact rather than opinion regarding the fact that the NRA is financed by manufacturers of firearms; the "fact" that the NRA happily encourages murders and robberies; the "fact" that the NRA sells guns; and the "reasonable factual inference" to be derived from the editorial, i.e., that the NRA promotes the violation of firearms laws by encouraging the sale of firearms to convicted felons such as Lee Harvey Oswald and Jim Jones. See, Doc. # 14, pp. 5-8. Initially, it should be noted that the NRA interpretation of several of the editorial comments is an erroneous construction of the actual statements which were made. Moreover, it is apparent from reading the editorial that most of the statements to which objection has been made are expressions of opinion, and that to the extent factual predicates for the statements can be ascertained, they are either true, or if based on undisclosed facts, are not defamatory.
First, with respect to the financing of the NRA, the editorial states that "the NRA ... is financed by the manufacturers of firearms and by shooters." See, footnote 2, supra. Plaintiff maintains that the NRA is not financed by firearms manufacturers,
Webster's Third New International Dictionary 851 (1976) defines finance as follows: "to raise or provide funds or capitol for." Based on the undisputed facts disclosed herein, it is apparent that firearms manufacturers do directly provide funds or capitol for the NRA, by purchasing advertising in NRA publications, and by paying fees to rent exhibit space at NRA conventions. William Binswanger, the NRA treasurer, indicated that the income of the NRA is derived from the following major sources: membership dues,
In addition to advertising income, the NRA receives revenue from firearms manufacturers in the form of fees paid for the rental of exhibit space at the annual NRA conventions. Warren Cheek, the Secretary of the NRA, indicated that official meetings of the members are required by the NRA bylaws, and that exhibitors were originally sought in order to attract NRA members to these meetings. Cheek deposition, pp. 3 and 33. Immediately following each NRA annual convention, most exhibitors reserve space for the next year's convention, but do not receive contracts, or applications for booth space until December of that year. See, id. at 34-35.
Based on the preceding facts, which have not been disputed, the Court finds that the NRA was in fact financed, at least in part, by firearms manufacturers, and that, accordingly, the statement in the Dayton Daily News editorial cannot be considered a false statement of fact.
In two of the affidavits submitted by the NRA, the affiants state that they understood the editorials in the Dayton Daily News and the Springfield Daily News as having "accused the National Rifle Association of encouraging the violation of laws regarding murder and robbery." See, Doc. # 14, Ex. 1, ¶ 4, and Ex. 2, ¶ 5. See also, Knox deposition, p. 52. Specifically, the following exchange occurred during Knox's deposition:
Id. According to the Complaint, the acts allegedly performed by the NRA to in fact encourage murders and robberies are the promotion of the sale of guns to known assassins and assorted punks, and other unidentified actions taken by the NRA to prevent the police and courts from concentrating on the crimes committed by known assassins and punks. See, Complaint, Doc. # 1, ¶ 18.
Despite the NRA's interpretation of the phrase, "the murders and robberies the NRA so happily encourages," it is frankly "impossible to believe that a reader ... would not have understood exactly what was meant," Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1542, 26 L.Ed.2d 6 (1970), that is, "even the most careless reader must have perceived that the ... [phrase] was no more than rhetorical hyperbole, a vigorous epithet used by those who considered ... [the NRA's] position extremely unreasonable." Id. (parenthetical material supplied).
In a case similar to the present, Neil Johnston, a former professional basketball player, sued Sports Illustrated, claiming that he had been libeled in an article published about Bill Russell, who had been selected by Sports Illustrated as the "Sportsman of the Year." Time, Inc. v. Johnston, 448 F.2d 378, 379 (4th Cir.1971). In particular, Johnston objected to, inter alia, the following comments: "[y]ou take Neil Johnston—..., Russell destroyed him. He destroyed him psychologically as well, so that he practically ran him out of organized basketball." Id. (emphasis added). Although the District Court denied motions for summary judgment which had been filed by both parties, the Court of Appeals reversed the denial of the defendant's motion for summary judgment, dismissed Johnston's cross-appeal, and ordered the District Court to enter judgment for the defendant. See, id. at 379, 385. In finding for the defendant, the Court of Appeals rejected Johnston's assertion that the words "destroyed" and "psychologically destroyed" were defamatory, stating that:
Id. at 384. (emphasis added). The Court then stated:
Id. (emphasis added) (citation omitted).
As with the use of the word "destroyed" in Times, Inc. v. Johnston, the employment of the phrase "the murders and robberies the NRA so happily encourages," represents nothing more than a resort to the type of caustic bombast traditionally used in editorial writing to stimulate public reaction.
Specifically, the Court rejects the inferences in ¶ 18 of the Complaint to the effect that the editorial conveys or intends to convey as fact that the NRA encourages murders and robberies by promoting the sale of guns to known criminals, assassins, and assorted punks, and by obstructing the efforts of the courts and the police. To begin, the editorial does not state that the NRA has advocated the sale of guns to these groups of people. The editorial states, instead, that:
Id. at footnote 2, supra.
Initially, it should be noted that the NRA is not identified in the editorial as the party who propagandizes the shooters. However, assuming arguendo that the NRA is the party responsible for "propagandizing,"
As was previously indicated, the NRA alleges in ¶ 18 of the Complaint that the editorial "intended to convey as fact that the National Rifle Association ..., happily encourages murders and robberies: ... by acting to prevent the police and courts from concentrating on these crimes." Doc. # 1, ¶ 18. Again, the editorial is capable of no such construction. Specifically, the editorial states that:
Id. at footnote 2, supra. (emphasis added).
As was noted earlier, one opinion voiced in the editorial is that the absence of strict gun control legislation causes violent crime to proliferate, and that to the extent the NRA successfully impedes either the adoption of such legislation or the appointment of gun control advocates to influential law enforcement positions, the NRA in effect, "happily encourages" murders and robberies. A further opinion in the editorial, shared with Norval Morris, is that decriminalization of certain "victimless" crimes would allow the police and the courts to attend more fully to serious crimes such as murder and robbery. To the extent that these "victimless" crimes are not decriminalized, it is, of course, axiomatic that law enforcement energy and court time will continue to be expended in connection with their resolution. These opinions are either directly expressed in the editorial, or follow logically from the statements in the editorial. What is not contained in the editorial, and what cannot be implied therefrom, is any inference that the NRA itself is literally obstructing the courts and the police in the performance of their duties. Moreover, even if the editorial did state that the NRA by opposing Morris' nomination somehow prevented certain crimes from being decriminalized, there is surely no defamatory construction which could be placed upon this type of activity, which would involve nothing more than the kind of participation in the political process traditionally sanctioned in our society. Consequently, the Court concludes that contrary to the assertions in ¶ 18 of the Complaint, the editorial does not convey, or intend to convey as fact that the NRA encourages murders and robberies by acting to prevent the police and courts from concentrating on these crimes.
The NRA additionally alleges that the editorial contains a false statement regarding the fact that the NRA sells guns. See, Doc. # 14, p. 7. Of the statements objected to by Plaintiff, this statement appears to be one which, under the Restatement standard, could arguably appear to be a "mixed" expression of opinion. Specifically, the editorial states that:
Id. at footnote 2, supra (emphasis added).
With regard to mixed expressions of opinion, the Restatement indicates that:
Restatement (Second) of Torts § 566 comment b (1977) (emphasis added). Thus, under the above theory, "[i]f the defendant expresses a derogatory opinion without disclosing the facts upon which it is based, he is subject to liability if the comment creates the reasonable inference that the opinion is justified by the existence of unexpressed defamatory facts." Id. at comment c(4).
In the present case, the operative portion of the Restatement definition is that emphasized above, i.e., "apparently based on facts regarding the plaintiff or his conduct." Contrary to Plaintiff's suggestion, it is obvious that the language in question does not refer to the conduct of the Plaintiff. The editorial comment does not state that the NRA sells guns; what it does plainly state is that NRA "folks" sell guns. This distinction between the NRA and NRA folks is particularly significant when viewed in the context of the remainder of the editorial, for in all other places therein
This distinction, although apparent in itself, is further revealed through the meaning of the term "folks," which is commonly defined as "the masses of people in a homogeneous social group." Webster's Third New International Dictionary, 882 (1976) (emphasis added). Thus, in the present situation, the "folks" referred to in the editorial are the members or masses of people in the homogeneous social group, or the NRA, rather than the group itself. This being the case, comments either about persons other than the NRA, or about conduct other than that of the NRA cannot form the basis of the NRA's action for libel. Consequently, even if the editorial comment is false, and if false, capable of a defamatory construction, the NRA is not entitled to recovery based on the statement that "the NRA folks can go back to selling guns and crying over the victims."
As a final matter, the NRA asserts that the editorial falsely sets forth as fact "[t]he reasonable factual inference, though undisclosed, that the NRA promotes the violation of firearms laws to obtain financing for its activities." Doc. # 13, p. 5. This contention can be disposed of with relative dispatch, for it is obvious, in view
The foregoing discussion has indicated that the comments in the editorial published in the Dayton Daily News and reprinted in the Springfield Daily News are protected expressions of pure opinion under Gertz, supra, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and that the false statements of "fact" objected to by Plaintiff are not factual statements, or to the extent they may be factually predicated, either are true, or are incapable of the interpretation advanced by Plaintiff. While these conclusions are dispositive of the present motion, the Court will additionally address the alternate ground presented by Defendant's motion for summary judgment, that is, whether under the undisputed facts established herein, Plaintiff can demonstrate the existence of actual malice with convincing clarity.
C. Actual Malice
As was noted earlier, in the introductory portion of this Opinion, Defendants contend that there are no genuine issues of material fact with regard to whether the publications involved in this case were made with actual malice. Although the present action is predicated on diversity jurisdiction, thus rendering Ohio law applicable, the common law of defamation has in large part "been subsumed in and altered by constitutional holdings." Orr, supra, 586 F.2d 1108, 1114 (6th Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979).
Id. at 279-280, 84 S.Ct. at 725. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), a majority of the Supreme Court justices concluded
The actual malice standard was further elaborated upon by the Supreme Court in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Therein, the Court reviewed the malice requirements articulated in previous decisions, which had mandated a "showing that a false publication was made with a `high degree of awareness of ... probable falsity' ..., [or] evidence of either deliberate falsification or reckless publication `despite the publisher's awareness of probable falsity,'" id. at 731, 88 S.Ct. at 1325 (citations omitted). The Court then concluded that:
Id. at 731, 88 S.Ct. at 1325 (emphasis added).
In the present case, because the NRA has conceded, at least for the purpose of this litigation, that it is a public figure, there is no need to discuss the NRA's status in detail. See, Doc. # 14, p. 22.
Before turning to a substantive analysis of whether malice has been demonstrated with convincing clarity under the facts submitted herein, a few comments are in order. Although the Court in Yiamouyiannis indicated that factual disputes should be resolved in the plaintiff's favor, that process significantly differs from transforming undisputed matters into factual disputes by accepting a party's unsubstantiated version of claimed "facts." To briefly illustrate this point, attention may be directed to the issue of the NRA's financing, which has been previously considered in some detail. Based on the Court's review of the materials filed by the parties, it was apparent that no factual dispute existed regarding the editorial statement that the NRA was financed by firearms manufacturers and by "shooters." To the extent that this statement could be classified as factual or based on fact, rather than opinion, the Court determined that the factual predicate for the statement was true. At this juncture, it would be logically inconsistent to assume that this statement is false, and to thus consider as Plaintiff suggests, whether Defendant
The same conclusion is mandated with regard to the remaining "facts" set forth by Plaintiff to satisfy the required showing of actual malice. Specifically, Plaintiff objects to false statements of fact in the editorial to the effect that the NRA promotes the right to sell guns to known assassins; that the NRA encourages murder and robbery; and that the NRA sells guns. See, Doc. # 14 pp. 19-22. Based on its extraction of these alleged false statements from the content of the editorial, and upon the fact that Defendants knew, for example, that the NRA did not literally encourage murder and robbery, Plaintiff contends that actual malice has been demonstrated. However, as has been previously noted, at length, the language of the editorial is incapable of being reasonably construed in the manner suggested by Plaintiff. Moreover, the statements to which objection has been made either are opinions, or are true to the extent they are factual, as was the case with the comment concerning the financing of the NRA. Like the plaintiff in Loeb v. New Times Communications Corp., 497 F.Supp. 85 (S.D.N.Y.1980), the NRA "[i]n essence, ... relies upon the character and content of the publication to support ... [its] claim that defendants acted with reckless disregard of the truth. This, however, is a constitutionally impermissible evidentiary basis for a finding of actual malice." Id. at 93 (citation omitted).
The evidence of record, rather than indicating that Defendants acted with actual malice, reveals that customary editorial procedures were followed in the preparation, publication, and reprinting of the editorial. Arnold Rosenfeld, the Editor of the Dayton Daily News, indicated that the Dayton Daily News had long adhered to a general policy of advocating gun control, with particular emphasis on "local, state, national restrictions for registration of handguns, for the banning of their manufacture, their importation, their sale, whatever can simply get them off the streets and out of [the] hands of people who should not be having deadly weapons of this sort." Rosenfeld deposition, pp. 13-14.
Once an editorial has been written, it is reviewed for content and grammar by Thomas Teepen, the Editor of the Dayton Daily News editorial pages. Teepen deposition, pp. 1, 6, and 7. After Teepen's editing is completed, and after composition and review of the editorial's headline, Teepen then, in the majority of cases, approves the
Id. at 48-49.
The testimony of Thomas Teepen also reflects a similar understanding of the customary approach to editorial writing and the application of that method in the present case. Thus, during Teepen's deposition, the following exchange occurred:
Teepen deposition, p. 61. Teepen further recalled that "in the editorial board discussion it was plain from Mr. Riesz's conversation that he had, in fact, done reading on this issue." Id. at 18.
Additional support for the above statements may be found in Rosenfeld's testimony, wherein he indicated that the editorial was considered merely "additional comment" on established policy rather than development of new policy which would require research. Rosenfeld deposition, pp. 13-15. See also, Fenley deposition, pp. 12-13. Rosenfeld also stated that while he sometimes became personally involved in editing, it was customary for him to accept Teepen's judgment on editorials such as the present, which were not being given a great deal of emphasis. See, Rosenfeld deposition, at 16-18. Moreover, Joseph Fenley, the managing editor of the Dayton Daily News, indicated that the newspaper would not ordinarily verify wire stories or information received from wire services. See, Fenley deposition, at 20. Fenley testified that occasionally further investigation would be done, particularly when the matter was of local concern. Fenley mentioned such a local case, and then commented: "since it was intensely local, we did more than just run the wire service. It was not that we had any lack of faith in the accuracy
Under the preceding analysis, it is clear that the Dayton Daily News staff did not deviate from accepted, normal procedures in preparing and publishing the Norval Morris editorial. Moreover, there is no indication in the affidavits or depositions submitted herein that any of the Defendants connected with the Dayton Daily News "in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).
In addition to demonstrating that the publication of the Morris editorial was in
Based on the preceding analysis, the Court finds as follows:
WHEREFORE, the motion for summary judgment filed by all Defendants is sustained in its entirety, and summary judgment is therefore granted in favor of all Defendants and against the Plaintiff, the National Rifle Association.
The Clerk of Courts is to enter judgment for the Defendants.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
First, given the discrepancy between the 1979 figures reported by Martin, and those found in the Binswanger affidavit, there is some question in the Court's mind regarding whether the Binswanger affidavit reflects an accurate account of advertising income from all NRA publications, or whether only income received from firearms manufacturers' advertising in The American Rifleman has been included. Specifically, it is somewhat difficult to understand why 1979 income from only one magazine would surpass the percentage of total advertising revenue ostensibly attained by three publications the preceding year. This inconsistency is particularly heightened by the fact that the reputed circulation figures for The American Rifleman are not substantially in excess of those reported for The American Hunter. See, Martin deposition, at 21 (indicating that circulation guarantees used in connection with the sale of advertising in NRA publications were 1,175,000 for The American Rifleman and 775,000 for The American Hunter). It is, of course, conceivable that Martin's computations were inaccurate. This factual dispute is not deemed by the Court to be material, however, because even if the income figures in the Binswanger affidavit are accepted as a reflection of revenue from firearms manufacturers' advertising in all three magazines, that is, if all factual inferences are construed in Plaintiff's favor, see, Fed.R.Civ.P. 56(e), the only conclusion which may be drawn is that the NRA is, in fact, financed, at least in part, by the manufacturers of firearms.
It is also interesting to note that advertising revenues from manufacturers of ammunition and other products used in connection with firearms were not included in the NRA computation of gross advertising income. See, Ex. 2 attached to Doc. # 14, ¶ 2 (reflecting income only from firearms manufacturers) and Martin deposition at 19 (indicating that no studies of ammunition revenues had been made). While it is true that the Dayton Daily News editorial specified firearms manufacturers, ammunition and firearms would appear to be intimately related items. However, the Court's decision has not been predicated in any part upon such a connection, since there is no indication in the record of what, if any, NRA revenues are derived from the sale of advertising to ammunition manufacturers.
Cheek deposition, at 43-44. See also, Martin deposition, at 53, and Binswanger deposition, at 33.
Carter deposition, p. 14 (emphasis added).
Another point of interest is that while the NRA itself does not sell weapons, the NRA was for many years directly benefited financially by a federal firearms sales program which required NRA membership as a prerequisite for participation. See, Gavett v. Alexander, 477 F.Supp. 1035, 1038-1039 (D.D.C.1979). Under this program, which remained in effect until well after the publication dates involved herein, citizens were eligible to purchase Army firearms at a substantial discount, see, id. at 1039, n. 5, only if, inter alia, they were current members of the NRA, i.e., had paid the then annual dues of fifteen dollars. See, id. at 1039, 1047. In this context, the Court specifically observed that:
Id. at 1040, n. 12 (emphasis and parenthetical material added).
Assuming arguendo that the statement in the editorial could be read to imply that the NRA itself participated in selling weapons, it would be impossible to conclude either that this statement must be based on undisclosed facts which are defamatory, or that insofar as the statement itself could be considered factual, that it is defamatory in the sense of reflecting "upon the character of ... [the NRA] by bringing ... [it] into ridicule, hatred, or contempt or ... [by affecting it] injuriously in ... [its] trade or profession." Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118, 95 N.E. 735 (1911). Accord, Becker v. Toulmin, 165 Ohio St. 549, 138 N.E. 391 (1956). The reasons for these conclusions are threefold. First, there is no inherently derogatory inference or unsavory nuance to be found in the simple statement that a party, either private or corporate, engages in the sale of weapons. In fact, the United States Government itself dealt extensively in the sale of weapons to NRA members. See, 477 F.Supp. at 1039, n. 6 (indicating sales by the Army to NRA members of over 118,000 weapons in 1961). Second, the NRA's own intimate association with arms sales, publicly sanctioned by Congress pursuant to statute since 1924, and apparently acquiesced in by the NRA in order to increase its membership, see, id. at 1040, n. 12, is flatly inconsistent with the claim that a connection with the sale of weapons is incompatible with, and thereby injurious to the business of the NRA. Finally, there are no inferences in the editorial to the effect that the NRA or any other party has engaged in unethical or illegal conduct. Thus, even if the NRA itself had been linked to the sale of arms, that fact would not provide a predicate for concluding that the NRA had been defamed.
Id. at 345, 94 S.Ct. at 3009. Under this definition, it is clear that the NRA is, at the least, a limited issue public figure, in view of the fact that the NRA has chosen to influence gun control legislation by intensive political lobbying.
It is also interesting to note that editorial commentary prepared by the ILA is routinely published in the "Official Journal" section of The American Rifleman. See, id. at 31-33, and Martin deposition Ex. 1. It is apparent from Martin's testimony that the staff of the Rifleman plays an extremely limited role in editing or altering the material submitted by the ILA. See, Martin deposition, at 34-35. In fact, Martin's comments indicate that the editing, if any, done by the Rifleman staff is not of a substantive nature, but instead relates merely to limiting the article's length to conform to the space available. See, id.
Id. at 38 (emphasis added). Riesz further indicated that the NRA's position on law enforcement, as reflected by Knox's testimony, was that the NRA was for strict enforcement of the laws, and that Knox "did not agree with Mr. Morris on the decriminalization of, quote, `victimless crimes.'" Id. at 30-31.