Southwell v. Southern Poverty Law Center (949 F. Supp. 1303, 1996)

OPINION OF THE COURT

MeKEAGUE, District Judge.

I. FACTUAL BACKGROUND

Plaintiff, Ray Southwell, is a Michigan resident who originally filed this libel suit in the Circuit Court for Emmet County, Michigan. Defendant, Southern Poverty Law Center, is an Alabama non-profit corporation with its principal place of business in Montgomery, Alabama. Defendant removed the case to this Court on June 80, 1995, alleging diversity of citizenship and the statutory amount in controversy. Plaintiff is the co-founder of the Northern Michigan Regional Militia, (“Michigan Militia”), and served as both its information officer and chief of staff. The Southern Poverty Law Center, through a project known as Klanwatch, publishes a quarterly newsletter aimed at monitoring the activities of the Ku Klux Klan and other white supremacist groups. The newsletter, known as the Klanwatch Intelligence Report (“KIR”), is mailed free of charge to 6,000 law enforcement agencies, human rights groups and media sources across the nation.

Plaintiffs amended complaint contains three counts, which allege that defendant defamed and libeled plaintiff and placed plaintiff in a false light in a December 1994 issue of KIR. The allegedly defamatory material included a photo of Southwell along with accompanying text which stated: “According to sources in Michigan, Southwell recently traveled to Tennessee for a meeting with Bobby Norton, the Southeastern Director for Aryan Nations.” Aryan Nations is identified in the article as a white supremacist organization with a violent past. South-well and Norton have both denied, in separate depositions, that Southwell attended an Aryan Nations meeting, which Norton admits took place at his home on December 3, 1994. Defendant claims that a previously reliable confidential source telephoned a KIR investigator and informed the investigator both before and after the meeting in Tennessee that Southwell would be and had been in attendance. Southwell denies attending and claims his alibi witnesses can prove he was at a family Christmas party in northern Michigan at the time the article infers he was in Tennessee.

Prior to the close of discovery in this case, plaintiff moved to compel defendant to disclose the name of the confidential source that was the basis for the article. Defendant claims the First Amendment protects it from having to disclose any information that would compromise the safety of its confidential source. On August 16, 1996, the magistrate judge to whom this motion was referred ruled defendant must disclose the information to plaintiff and plaintiffs counsel. This Court stayed disclosure until it could consider defendant’s pending motion for summary judgment. See Opinion, September 26,1996. A hearing was held on this motion on November 4, 1996. After carefully considering the parties’ arguments, this Court is now ready to issue its opinion. The first part of the opinion addresses defendant’s motion for summary judgment. The second part addresses plaintiffs request that any such ruling be delayed until the Court orders disclosure of defendant’s confidential source.

II. New York Times Standard

Plaintiff, who as chief spokesman for the Michigan Militia gained national media attention prior to the KIR article, concedes that for purposes of this litigation he is a “limited-purpose public figure.” As such, to prevail on his claims, it is not enough for plaintiff to simply satisfy the elements of a libel action under Michigan law; he must instead meet the much more rigorous constitutional standard the Supreme Court imposed on states via the First and Fourteenth Amendments. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). “A public figure may not recover damages for a defamatory falsehood without clear and convincing proof that the false ‘statement was made with ‘actual malice’— that is, -with knowledge that it was false or with reckless disregard of whether it was false or not.’” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 659, 109 S.Ct. 2678, 2681, 105 L.Ed.2d 562 (1989) (quoting New York Times, 376 U.S. at 279-280, 84 S.Ct. at 726). A “reckless disregard” for the truth, requires more than a departure from reasonably prudent conduct. Id. at 688, 109 S.Ct. at 2696. Although there is not one infallible definition for the concept of “reckless disregard,” the Supreme Court has made clear a defendant must have made the false publication with a “high degree of awareness ... of probable falsity,” or must have “entertained serious doubts as to the truth of his publication.” Id. at 667, 109 S.Ct. at 2686 (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964); St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968)).

Unlike most negligence actions where the fact finder is asked to apply an objective standard to measure a defendant’s conduct, the standard in a public figure defamation action is a “subjective one.” Harte-Hanks, 491 U.S. at 688, 109 S.Ct. at 2696 (emphasis added). Therefore, to prevail it is not relevant whether a prudent journalist would have exercised more caution than a particular defendant, “or would have investigated before publishing,” instead “there must be sufficient evidence to permit the conclusion that [this] defendant in fact entertained serious doubts as to the truth of the publication,” or “actually had a high degree of awareness of probable falsity.” Id. (quoting St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325).

The Supreme Court acknowledged the burden such a high standard would place on public figure plaintiffs in libel actions, but defended it on the grounds that “the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nOr the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies.” St. Amant, 390 U.S. at 731-32, 88 S.Ct. at 1326. The Court added that:

The defendant in a' defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the, publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imdgination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

Id. (emphasis added). • In Harte-Hanks, the Court said that actual malice cannot be established by proving ill will, pecuniary interest or a reporter’s failure to investigate. Harte-Hanks, 491 U.S. at 667, 109 S.Ct. at 2685-86.

III. Summary Judgment Standard

The higher standard of proof public figure plaintiffs must meet at trial also applies at the summary judgment stage. “Consequently, where the New York Times ‘clear and convincing’ evidence requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant.” Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). “Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that plaintiff has not.” Id. (emphasis added).

The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. Id. Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id.

IV. Analysis

Plaintiff contends in his first amended complaint that he was defamed by defendant’s article because it said plaintiff had traveled to Tennessee to visit Bobby Norton, a leader in the Aryan Nations, a white supremacist organization with a violent past. While plaintiff has presented considerable evidence which appears to raise serious doubts about the actual accuracy of this statement, the question before this Court is not whether the alleged defamatory statement was true or false. Instead, the inquiry must focus on whether defendant’s employees entertained serious doubts about the accuracy of this story before it was sent to the printer on December 15, 1994. To defeat defendant’s motion for summary judgment, plaintiff must present sufficient evidence to convince this Court that a reasonable jury could find by “clear and convincing evidence” that defendant published the alleged libel with actual malice. Plaintiff conceded at oral argument he has no proof of actual malice, but argues he has at least made out a case for recklessness. After reviewing plaintiffs proofs, this Court finds that plaintiff has not provided a single piece of evidence that would help him satisfy the high legal burden he faces under New York Times.

Obviously, the most compelling evidence in this kind of case would be any proof plaintiff could provide that defendant’s employees, in their own words or deeds, seriously doubted the accuracy of their story before it was published. While such damning evidence is likely to be available only rarely, it is certainly not present here. In fact, the evidence suggests that even after plaintiff called Joseph T. Roy, the publication’s chief investigator, on December 12, 1994, to refute the accuracy of the story and deny his traveling to Tennessee to meet with Bobby Norton, Roy adamantly insisted the story was correct. The record also shows that after the telephone call, Roy checked back with the source one more time to confirm that the initial reports were accurate. While Roy’s comments may have simply been defensive or self-serving, they do hot support plaintiffs argument that defendant or its employees entertained serious doubts about the accuracy of the story.

In their affidavits and depositions, both Roy and J. Michael Reynolds, the editor of KIR, strongly denied any suggestion they doubted the accuracy of the story. This Court has reviewed defendant’s sealed Exhibit 19, which purports to be the notes Roy took on November 11 during an unsolicited telephone call he received from a confidential source about a meeting at Norton’s house in Tennessee on November 5,1994. The Court finds these notes- are quite detañed. The confidential source described the number of persons present at the meeting, the license plate number of a ear driven by one of those present, the nature of what was said at the meeting, and specifically named which officials were present. Perhaps most significantly, in his call to Roy the source accurately predicted three weeks in advance of its occurrence that another Aryan Nations meeting would be held at Norton’s house on December 3, 1994. Although both Norton and plaintiff deny that plaintiff attended the December 3, 1994 meeting, neither denies that the meeting occurred. Norton’s own notes of the December 3, 1994 meeting indicate the group present had a “discussion on militia.” Norton Deposition, Exhibit 2. Two days after the meeting, Roy received another call from his confidential source. In defendant’s sealed Exhibit 20, Roy’s notes of this December 5, 1994 telephone conversation with this source also provide a rather detaüed description of the December 3, 1994 meeting at Norton’s house. Neither Norton nor plaintiff have disputed that the Aryan Nations meeting took place. Defendant’s employees have indicated throughout the record that they were confident in the information provided by this confidential source, in part, because the source had been reliable in the past. The mere fact that the source accurately predicted three weeks in advance when and where an Aryan Nations meeting would occur at a private individual’s house, supports defendant’s reasonable reliance on this source. .

A review of the entire record also shows that defendant’s employees would have had no'reason to believe that plaintiffs attendance at such a meeting was “inherently improbable.” Instead, defendant persuasively points to three different things which support the probability of such a meeting. First, plaintiff has admitted spending time with John Trochmann and having spoken on the phone with James Wickstrom, both of whom KIR named as leaders in the white supremacist movement. Second, plaintiffs own statements that he would be willing to “sit down with Satan himself to talk about the militia ...” gives the impression that plaintiff himself would be willing to meet with anyone, racist or not, to talk about the militia movement. Third, and perhaps most telling of all, when asked by Reynolds, the KIR editor, if he would consider speaking at the Aryan Nations World Congress, plaintiff did not express surprise or outrage at the suggestion. Instead, the transcript shows he laughed and said: “I certainly wouldn’t now.” All three facts lend support to defendant’s position that its employees had no reason to doubt the information from their confidential source. Although plaintiff has not argued that the story was inherently improbable, defendant’s evidence would refute such a contention and bolsters defendant’s argument that its employees lacked actual malice. Given the significant weight of the evidence defendant has supplied supporting an absence of malice by its employees, the Court now considers whether the nonmoving plaintiff has presented substantial evidence of malice to raise a genuine issue of material fact for a jury to consider.

An analysis of his somewhat confusing brief shows that plaintiff appears to rely on four different facts to support his position that defendant’s employees “entertained serious doubts” about the story: (1) depositions by Norton and plaintiff prove plaintiff did not attend any meeting in Tennessee on December 3, 1994; (2) defendant’s newsletter unfairly mentioned plaintiff’s denial of racist ties in the same sentence in which plaintiff is described as a “deacon in his local Baptist church;” (3) defendant has conceded its confidential source was not from Michigan as the story indicated; and (4) defendant’s story inaccurately quoted plaintiff regarding his willingness to meet with Satan to discuss the militia. The Court now considers each of these claims in turn.

First, the fact that plaintiff has presented strong evidence that he did not meet with Norton on December 3, 1994 has no bearing on the state of mind of defendant’s editor and investigator before they published a story quoting sources as indicating such a meeting took place. Proving a fact is false after publication does not establish that defendant knew or should have known it was false prior to publication. A review of the detailed notes Roy took during his conversation with defendant’s confidential source tends, if anything, to bolster defendant’s contention that its employees had reason to believe in the accuracy of the information. Although plaintiff called Roy prior to publication denying his attendance at the meeting with Norton, he failed to provide any proof, other than his own denials, that he was not present.

Second, this Court can not ascertain what plaintiff means in Ms brief when he characterizes as false “the assertion that the fact Plaintiff denied racist ties should be compared to tMs (sic) being a deacon in the Baptist Church.” Plaintiffs Response, p. 7. If anything, the inclusion by defendant of the phrase