NATIONAL RIFLE ASS'N v. DAYTON NEWSPAPERS, INC.

DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; JUDGMENT TO BE ENTERED FOR DEFENDANTS; TERMINATION ENTRY

RICE, District Judge.

I. Introduction

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,1 based on the publication in the Dayton Daily News on December 28, 1978, of an editorial entitled "NRA again murders good sense."2 In addition, the NRA sued Springfield Newspapers, Inc., a corporation which publishes the Springfield Daily News, and several employees of that newspaper,3 based on the Springfield Daily News' reprinting of the foregoing editorial under the title "NRA Power."

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."4 The NRA, which as of May 13, 1980, had approximately 1,794,304 members,5 publishes three magazines, The American Rifleman, The American Hunter, and The American Marksman, which as of December 9, 1980, had a combined total circulation of approximately 1,954,000.6 With regard to the issue of gun control, the NRA has opposed the individual registration of firearms, and has objected to any law which would require individuals to register firearms.7 The editorial which is the subject of the present lawsuit is, in general, a derisive comment on the NRA's opposition to, and the subsequent withdrawal of former President Carter's nomination of Norval Morris for the position of Administrator of the Law Enforcement Assistance Administration (LEAA). The editorial is sarcastic in tone and is sharply critical of the NRA's stance on the appointment of Morris, who advocated more stringent gun control and the decriminalization of certain "victimless" crimes.

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 Springfield Daily News on January 6, 1979.8 In addition, the Complaint invokes the jurisdiction of this Court pursuant to 28 U.S.C. § 1332(a)(1), based on the diverse citizenship of the Plaintiff and all Defendants.

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).9

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 position on gun control, Defendants maintain that the editorial, while rhetorical and fraught with hyperbole, is nonetheless entitled to absolute constitutional protection. As a further matter, and in conclusion, Defendants contend that summary judgment still remains a triable and appropriate means of resolving libel actions in which, as here, no evidence of actual malice has been presented.

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.

II. Discussion

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,10 which inferred that Hutchinson had "made a monkey out of the American taxpayer," id. at 116, 99 S.Ct. at 2678, Hutchinson initiated an action for defamation against Proxmire and his legislative assistant. The district court granted summary judgment for the defendants, finding that some of the publications were absolutely immune under the Speech or Debate Clause, and that the remaining claims were not actionable because there had been no demonstration of actual malice. See, id., at 118-120, 99 S.Ct. at 2679-81. The Court of Appeals affirmed. Although the Supreme Court reversed the judgment, it did so based on the fact that the lower courts had erred both in holding the transmittal of Proxmire's press release and newsletter absolutely immune, and, in finding that Hutchinson was a public figure for the purpose of applying the New York Times standard of actual malice. See, id. at 132-136, 99 S.Ct. at 2686-89.11 The Court thus did not specifically reach any issue relating to the propriety of utilizing summary judgment in libel actions.

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 2680.12 The Supreme Court then observed that:

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 because the statements contained therein were purely opinion, or if factual, were not based on undisclosed defamatory facts.

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):

Id.

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 for Legislative Action (ILA), for the purpose of influencing legislation on the issue of gun control. See, id. at 5 and 14.13 The ILA is responsible for representing the NRA before legislative groups, and contains several divisions, including a federal division, a state and local division, an administrative division, a communications division and a legal division. See, id. at 9-10. Carter indicated that the communications division "consists of a group of people who are writers and publications types and they are busily engaged in that field." Id. at 10. Specifically, Carter stated that:

Id.

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, and that the preceding statement is defamatory because it suggests that "the manufacturers of firearms provide secret financing to the NRA." Doc. # 14, p. 10, n. 1. However, contrary to Plaintiff's contentions, the NRA, in fact, is financed by firearms manufacturers, and thus, the factual predicate for this statement is true. In addition, there is plainly absent from the editorial any inference to the effect that the financing given to the NRA by manufacturers is either secret or illegal.

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,14 dividends and interest; sales of training materials and booklets; yearly fees paid by clubs affiliated with the NRA; contributions to the ILA; and advertising placed in the three NRA publications, i.e., The American Rifleman, The American Hunter, and The American Marksman. See, Binswanger deposition, pp. 5, 9, 11, 12, and 13. The revenues obtained from these sources are placed together in a fund, from which the publication of the NRA magazines is financed. See, id. at 18. The advertising revenues generated in any particular year from advertisements paid for by firearms manufacturers account on an average, for approximately 30.7% of gross advertising income. Binswanger affidavit, attached as Ex. 2 to Doc. # 14.15

The NRA basically offers two types of memberships, annual and lifetime. Annual memberships may be purchased in one, three or five year terms, and with the purchase of an annual membership, a member is entitled to receive either The American Rifleman magazine or The American Hunter magazine at no additional cost. Binswanger deposition, at 10. See also, Martin deposition, pp. 8-9. The publication of at least The American Rifleman is required under the bylaws of the NRA, and to the extent that advertising revenue from firearms manufacturers could not be obtained, the NRA would be obliged to acquire funds from other sources, "internal as well as external." Martin deposition, at 28-29.

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 34-35.16 On the application form used in connection with the 1978 convention, the rental fee for exhibitors is listed as $300.00 for an inside booth, and $325.00 for a corner booth. See, id. at 37, and Cheek deposition, Ex. 2. Cheek indicated specifically that Colt Firearms Division had applied for and made payment for booth space in 1978, and that Springfield Armory, a commercial firm which made firearms, applied for booth space in 1979 and 1980. Cheek deposition, at 37, 58 and 59-60. See also, Cheek deposition, Ex. 2 and Ex. 7.17 As a final matter, Cheek indicated that the exhibit fees charged by the NRA were used to defray the expenses of the annual convention, and were administered through the accounting office of the NRA. Cheek deposition, at 68.

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).18

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.19 The tone of the editorial, in fact, is first established by the headline "NRA again murders good sense."20 This initial use of the word murder is obviously not intended literally, but is meant to suggest that the NRA has adopted a position or taken some action which is absurd, or lacking in sense, at least in the opinion of the editorial writer. The ironic, sarcastic tone of the editorial is further established and maintained throughout by the use of slang and phrases such as: "[t]he National Rifle Association has bagged another one;"21 "that hotbed of crazed radicalism, the very establishment University of Chicago;" "folding green;" "punks who find guns useful for relieving gas stations ... of their assets;" "the Carter administration knows when it is outgunned;" and "the police still busting drunks and hookers." Moreover, given the NRA's notorious opposition to gun control, as well as the comments in the editorial which specifically advance the opinion that more stringent gun control laws would decrease the number of murders and robberies,22 the only logically susceptible interpretation of the phrase "murders and robberies the NRA so happily encourages," is that by opposing gun control, and in this instance particularly, by impeding the appointment of a gun control advocate to an influential law enforcement position, the NRA has participated in effectively permitting the continuation of violent crime in this society. It is frankly immaterial whether the editorial writer is correct in contending either that the failure to control the availability of weapons increases violent crime, or that the NRA's opposition to gun control contributes to the atmosphere in which such crime flourishes; these assertions are plainly nothing more than opinions, and the inferences which have been culled therefrom by Plaintiff are so "`strained, unreasonable and unjustified,'" Loeb v. New Times Communication Group, 497 F.Supp. 85, 90 (S.D. N.Y.1980) (citations omitted), that they cannot be credited.

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,"23 it is flatly inconceivable that a reader would assume, upon reading the above, that the NRA literally, and, in fact, urges the sale of lethal weapons to known mass murderers, to convicted felons, or to persons intent upon committing crimes. No such suggestion is made, and no such inference may rationally be gleaned from the language used in the editorial. Rather, the simple, unambiguous point being made is that without increased restrictions on the availability of weapons, guns may be purchased by almost anyone with the financial ability to do so, including persons who are dangerous to society. Purely as examples of types of persons who are dangerous to society, the editorial lists Lee Harvey Oswald, the Reverend Jim Jones, and Richard Speck, notorious assassins or mass murderers. To say that the editorial implies that the NRA wishes arms to be sold to these individuals borders on the absurd, and would require a deviation from the express, plainly articulated meaning of the editorial.24

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 where reference is made to the association itself or to the conduct of the association, only the terms NRA or National Rifle Association are employed. See, e.g., "[t]he National Rifle Association has bagged another one;" "dangerous to the NRA, which is financed;" "upset the NRA and its conservative friends in the Senate;" "murders and robberies the NRA so happily encourages." Id. at footnote 2, supra.

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."25

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 of the preceding discussion, that the editorial cannot be construed in the manner suggested by the Plaintiff. The only statements or inferences which Plaintiff maintains support the above factual conclusion, are those which allegedly indicate that Plaintiff "sold guns and promoted the sale of firearms to known criminals so it could maintain its financial security." Id. at 9. As has been previously indicated in the main text and in footnotes 23 and 24, the editorial neither states nor reasonably implies that the NRA advocates selling guns to known felons, that the NRA sells weapons, or that the NRA engages in such activities in order to receive financing. Consequently, given the absence of the statements and innuendo erroneously inserted into the editorial by Plaintiff, the "reasonable factual inference" said to follow therefrom cannot exist. Accordingly, the Court finds that Defendants cannot be held accountable for the alleged false factual implication that the NRA promotes the violation of firearms laws in order to obtain financing.

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.26

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).27 Thus, in order to preserve the vitality and breadth of public debate traditionally insured by the First and Fourteenth Amendments, the Supreme Court in New York Times, supra, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), held as follows:

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 that the actual malice standard should apply not only to public officials but also to "`public figures' whose views and actions with respect to public issues and events are often of as much concern to the citizen as the attitudes and behavior of `public officials.'" Id. at 162, 87 S.Ct. at 1995 (Warren, J. concurring). Accord, Gertz, supra, 418 U.S. 323, 335-336 & n. 7, 94 S.Ct. 2997, 3005 & n. 7, 41 L.Ed.2d 789 (1974).

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. 22.28 Since the protective umbrella of New York Times thus applies, the issue left remaining for consideration is whether, accepting as true Plaintiff's version of disputed facts, a "reasonable jury could find malice with convincing clarity," that is, has Plaintiff made "a clear and convincing showing, which may be by circumstantial evidence, of defendant's actual state of mind—[that state of mind being] either subjective awareness of probable falsity or actual intent to publish falsely." Yiamouyiannis, supra, 619 F.2d 932, 940 (2d Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46 (1980) (citations omitted) (emphasis in original) (parenthetical material added).

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 Riesz acted with actual malice because he did not conduct a specific investigation into the NRA's financing, but instead relied upon his recollection of seeing firearms advertised in The American Rifleman. See, Doc. # 14, pp. 17-18.29 It is apparent that Riesz could not have entertained doubt about the accuracy of a statement which was true. Given these facts, it would obviously be illogical beyond peradventure to conclude that Riesz or any other Defendant acted with actual malice in publishing the statement about the financing of the NRA. New York Times does not impose upon defendants the burden of establishing truth, 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1964). From this fact, however, it does not, therefore, follow that where truth has been discovered, it need be disregarded.

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. 13-14.30 According to Rosenfeld, after the development of the paper's broad political policy, "day-to-day policy is generally brought up and conceived ... in a series of daily editorial board meetings ... in which members of our editorial board meet and describe the issues, talk about the issues, and assignments are made in a very casual way about writing." Id. at 5.

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 editorial for publication. See, id. at 7. Although the staff members who were deposed had difficulty recalling the precise content of the editorial meeting in which the potential Norval Morris editorial was discussed, there is no indication that anything other than the routine procedures were followed in connection with the preparation and publication of that editorial. Charles Riesz, the Dayton Daily News editorial writer who authored the editorial, indicated that in preparing the editorial, his sources of information included: stories he had read about Morris' testimony in the New York Times, the Washington Post, the Congressional Quarterly, and the Wall Street Journal; his recollection of Neil Knox's testimony during Morris' nomination hearing; and his personal knowledge of the lobbying activities of the NRA, based on his previous employment with the Congressional Quarterly. See, Riesz deposition, pp. 18-19, 30, 56, and 60-61. Riesz further indicated that in writing editorials, the normal procedure was to consult and rely upon "current, presumably reliable news accounts of the event." Id. at 48. Regarding these accounts, Riesz stated:

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 of the wire services. They are highly respected news organizations, run by professionals. That's their function." Id. at 20-21.31

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).32 It is likewise apparent that the Springfield Daily News and its staff did not reprint the Dayton Daily News editorial with awareness of its probable falsity. Loren Schultz, the editor of the Springfield Daily News editorial page, testified that at least since 1942, the Springfield Daily News had customarily reprinted editorials taken from the Dayton Daily News. Schultz deposition, pp. 3, 6, and 7. See also, Teepen deposition, p. 58.33 Schultz indicated that the Springfield paper engaged in this practice because it did not have the equipment and staff to prepare all of its own editorials. See, Schultz deposition, at 6. Schultz further stated that the Springfield Daily News did not use editorials verbatim from other newspapers, but did use the Dayton Daily News editorials "because of our association with the Dayton Daily News, which has gone through many, many years." Id. at 7.

In addition to demonstrating that the publication of the Morris editorial was in accordance with the established practice of the Springfield Daily News, Schultz's testimony reveals that he was familiar with the subject matter of the editorial, including the specific matters upon which the NRA has premised its claims. See, id. at 14-16, 19-20, and 26. While Schultz did not verify the information contained in the editorial, such an omission, at most, would constitute only a failure to investigate, and would be insufficient to establish the presence of actual malice. See, footnote 29, supra. However, given the fact that Schultz was knowledgeable about the content of the editorial, it would be unwarranted to consider that he acted even negligently in failing to verify the information contained therein. Moreover, there is a total absence of any evidence which would indicate that Schultz was aware of the probable falsity of the editorial or entertained serious doubts as to its truth. Thus, based on the undisputed facts disclosed herein, and construing all inferences in Plaintiff's favor, there is no evidence upon which a jury could reasonably find with convincing clarity that either the Springfield Daily News or the Defendant employees of that newspaper acted with actual malice in reprinting the editorial first published in the Dayton Daily News.34

III. Conclusion

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.