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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK


CHURCH OF SCIENTOLOGY INTERNATIONAL,

Plaintiff,

-- against --

TIME WARNER, INC., TIME INC. MAGAZINE COMPANY, and RICHARD BEHAR,

Defendants.


92 Civ. 3024 (PKL)

OPINION AND ORDER


APPEARANCES

MORRISON COHEN SINGER & WEINSTEIN, LLP

750 Lexington Avenue

New York, New 10022

Jonathan W. Lubell, Esq., of counsel

Jonathan M. Plissner, Esq., of counsel

Attorneys for Plaintiff


CAHILL GORDON & REINDEL

80 Pine Street

New York, New York 10005

Floyd Abrams, Esq., of counsel

Dean Ringel, Esq., of counsel

Attorneys for Defendants


LEISURE, District Judge:

Plaintiff Church of Scientology International ("CSI") brought this
action to recover for damages allegedly suffered from the
publication of false and defamatory statements concerning CSI in
the cover story of the May 6, 1991 issue of Time Magazine.
Defendants Time Warner, Inc., Time Inc. Magazine Company, and
Richard Behar (collectively "Time") move this Court for summary
judgment, pursuant to Federal Rule of Civil Procedure 56, on the
grounds that they lacked actual malice in publishing the article
about CSI, an admitted public figure. See Plaintiff's Response to
Defendants' First Set of Requests for Admission to Plaintiff. For
the reasons stated below, defendants' motion is granted in part
and denied in part.

DISCUSSION

"Summary judgment is proper only if, viewing all evidence in the
light most favorable to the nonmoving party, there is no genuine
issue of material fact" as to an essential element of a claim.
Buttry v. General Signal Corp., No. 95-7135, 1999 WL 628556, at #3
(2d Cir. Oct. 26, 1995). A public figure suing for libel must
prove, as one of the essential elements of the claim, that the
defendant published the material with actual malice, i.e., actual
knowledge of its falsity or with serious subjective doubts as to
its truth. See New York Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964); St. Amant v. Thompson, 390 U.S. 727, 731-32 (1968).
The First Amendment further requires that the plaintiff prove
actual malice with clear and convincing evidence. See id.
Therefore, "there is no genuine issue if the evidence presented in
the opposing affidavits is of insufficient caliber or quantity to
allow a rational finder of fact to find actual malice by clear and
convincing evidence." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254 (1986).

Although a defendant's state of mind is at issue in a libel case
covered by New York Times, that fact alone cannot preclude summary
judgment, for First Amendment protection cannot be emasculated by
unwillingness on the part of a court to grant summary judgment
where "affidavit evidence of the defendant's state of mind" is
lacking. A libel suit cannot be allowed to get to the jury, at
enormous expense to the defendant, based on mere assertions of
malice by the plaintiff. Cf. St. Gurin v. Virgin Islands Daily
News, Inc., 21 F.3d 1309, 1318 (3d Cir. 1994) ("Summary judgment
for the publisher is quite often appropriate because of the
difficult a public office has in showing 'actual malice.'").
Indeed, without judicious use of summary judgment to dispose of
libel suits, "the threat of being put to the defense of a lawsuit
freedoms as fear of the outcome of the lawsuit itself." Immuno AG.
v. Moor-Jankowski, 74 N.Y.2d 548, 561, 549 N.E.2d 129, 135, 549
N.Y.S.2d 938, 944 (1989) (internal quotation marks omitted);
vacated, 497 U.S. 1021 (1990), adhered to, 77 N.Y.2d 335, 567
N.E.2d 1270, 566 N.Y.S.2d 906 (1991), cert. denied, 500 U.S. 954
(1991). Because the freedoms guaranteed by the First Amendment are
designed to ensure that debate not litigation, is vigorous, the
subjective nature of the test of liability cannot create a bar to
summary disposition of libel suits.[FN1] See McLee v. Chrysler
Corp., 38 F.3d 67, 68 (2d Cir. 1994) (ruling that district court's
view - that summary judgment was unavailable in discrimination
cases where employer's intent was at issue - was unsupportable).
Indeed, this Court finds little to distinguish silence enforced by
oppressive litigation from "silence coerced by law - the argument
of force in its worst form." Whitney v. California, 274 U.S. 337,
375-76 (1927) (Brandeis, J., concurring).

In addition, the Court must "consider this case against the
background of a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks." New York Times Co., 376
U.S. at 270. As quoted in New York Times,

In the realm of religious faith, and in that of political belief,
sharp differences arise. In both fields of the tenets of one man
may seem the rankest error to his neighbor. To persuade others to
his own point of view, the pleader, as we know, at times, reports
to exaggeration, to vilification of man who have been, or are,
prominent in church or state, and even to false statement. But the
people of this nation have ordained in the light of history, that,
in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion
and right conduct on the part of the citizens of a democracy."

Id. at 271 (quoting Cantwell v. Connecticut, 310 U.S. 296, 310
(1940)). Because sharp disagreement is essential to robust debate
about important issues, "[a]ctual malice under the New York Times
standard should not be confused with the concept of malice as an
evil intent or a motive arising from spite or ill will." Masson v.
New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991). The speaker's
belief in his statements, even his exaggerations, enhances, rather
than diminishes, the likelihood that they are protected from libel
attack by the First Amendment. Only where the speaker himself
lacks this conviction, where the speaker entertains serious doubts
as to the veracity of his statements, is the false statement
actionable. See St. Amant, 390 U.S. at 731.

As a threshold matter, then, the Court considers plaintiff's
assertions that Behar, after publishing an article in Forbes
critical of the church,

targeted the Church with a fixed view of it as a 'destructive
cult.' In the next five years, through the publication of his
article in the May 6, 1991 issue of Times, Behar refined his focus
- gathering negative information from Scientology adversaries and
proposing anti-Church articles - while never changing any view
about the Church, never accepting anything a Scientologist said
and uniformly ignoring anything positive he learned about the
Church.

Plaintiff's Memorandum of Law in Opposition to Defendants' Motion
for Summary Judgment at 2. As noted, malice in the sense of hatred
or ill-will is often indicative of lack of the actual malice
required under New York Times, and therefore would tend to
undermine, not support, plaintiff's case. In addition, "reckless
conduct is not measured by whether a reasonably prudent man would
have published, or would have investigated before publishing." St.
Amant, 390 U.S. at 731. However, the combination of inadequate
investigation with bias on the part of the publisher can give rise
to an inference of actual malice. See Harte-Banks Communications,
Inc. v. Connaughton, 491 U.S. 657, 632 (1989). With a showing of
an extreme departure from standard investigative techniques, bias
of the reporter becomes relevant to explain this extreme departure
as more than mere carelessness rather as purposeful avoidance of
the truth. Plaintiff therefore devotes much of its opposition to
the motion to attempting to demonstrate Behar's predetermined bias
toward the church. However, plaintiff has failed to demonstrate
the correlative circumstance or inadequate investigation to make
its evidence of bias probative of actual malice, rather than
probative of lack thereof. Without a showing of inadequate
investigation, bias merely confirms the publisher's firmly-held
belief in the allegedly defamatory statements,

With these principles in mind, the Court considers each allegedly
libelous statement individually to determine whether a rational
finder of fact could find actual malice by clear and convincing
evidence. See Tayoulareas v. Piro, 817 F.2d 762, 794 (D.C. Cir.)
(en banc) ("[D]efamation plaintiffs cannot show actual malice in
the abstract; they must demonstrate actual malice in conjunction
with a false defamatory statement." (emphasis in original)), cert.
denied, 484 U.S. 870 (1987).

A. Statements Set Forth at 40

Paragraph 40 of the complaint sets forth several statements
alleged to be false and defamatory. (The text of the sentences as
they appear in the article is set forth below, the portions quoted
in the complaint are underlined.)

1. "In reality the church is hugely profitable global racket that
survives by intimidating members and critics in a Mafia-like
manner."

2. "Says Cynthia Kisser, the (Cult Awareness) network's
Chicago-based executive director: 'Scientology is quite likely the
most ruthless, the most classically terroristic, the most
litigious and the most lucrative cult the country has ever seen.
No cult extracts more money from its members.'"

3. "Those who criticize the church - journalists, doctors, lawyers
and even judges - often find themselves engulfed in litigation,
stalked by private eyes, framed for fictional crimes, beaten up or
threatened with death."


Mafia-Like Intimidation

Time relied on many sources as the basis for its belief that "the
church . . . survives by intimidating members and critics in a
Mafia-like manner." None of these sources is so obviously
incredible that a reasonable jury could infer from Time's reliance
on them knowledge of falsity or subjective doubt as to veracity.
See St. Amant, 390 U.S. at 732; cf. id. ("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
imagination, or is based wholly on an unverified anonymous
telephone call."). Compare Harte-Hanks, 491 U.S. at 691 ("The
hesitant, inaudible, and sometimes unresponsive and improbable
tone of Thompson's answers to various leading questions raise
obvious doubts about her veracity."). On the contrary, Behar
relied on affidavits from former high-ranking Scientologists,
newspaper and periodical articles, interviews and personal
experience, and published court opinions, often issued after the
benefit of adversarial presentation of testimony, which supported
his professed belief that CSI intimidated critics and members. See
Affidavit of Richard Behar ("Behar Aff.") Paragraphs 28-61. The
Court finds that based on this evidence, no reasonable jury could
find that CSI had proven by clear and convincing evidence that
Time either knew or entertained serious doubts that the statement
was false.

2. Most Ruthless, Classically Terroristic Cult

This statement appeared in the article in the form of a quotation
from Cynthia Kisser, executive director of the Cult Awareness
Network. "Repetition of another's words does not release one of
responsibility if the reporter knows that the words are false or
inherently improbable, or there are obvious reasons to doubt the
veracity of the person quoted or the accuracy of his reports."
Goldwater v. Ginzburg, 414 F.2d 324, 337 (2d Cir. 1969), cert.
denied, 396 U.S. 1049 (1970). Based on the material supporting
Behar's statement regarding Mafia-like intimidation, see Behar
Aff. Paragraphs 28-61; see also id. Paragraphs 62-67, Behar's
repetition of Kisser's statement was not done with knowledge that
the statement was false or inherently improbable. Nor are there
obvious reasons to doubt Kisser's veracity. There is no doubt that
her views are deeply opposed to CSI's views, and each likely
regards the other's conduct as reprehensible if not criminal, see
Farny Aff. Paragraph 98, but such sharp disagreement and Kisser's
obvious antagonistic relationship with Scientology does not amount
to an obvious reason to doubt her veracity. On the contrary, as
executive director of an organization dedicated to studying
so-called cults, her judgment as to CSI's ruthlessness and
terroristic practices likely carried credence with Behar. See id.
Paragraph 62. The Court therefore finds that a reasonable jury
could not find that plaintiff had demonstrated actual malice on
the part of Time in publishing this statement by clear and
convincing evidence.

3. Journalists, Doctors, Lawyers, and Judges Framed, Beaten pp. or
Threatened with Death

In light of Behar's beliefs regarding his own experiences with
Scientology, the admitted harassment of Paulette Cooper by
Scientology's Guardian's office (which has been disbanded), and
the other sources relied on by Behar, see Behar Aff. Paragraphs
85-93, the Court finds no evidence that Behar made the statement
regarding journalists with actual malice. Similarly, there are not
"obvious reasons to doubt" Behar's sources for his statement
regarding doctors, lawyers, and judges. See St. Amant. 390 U.S. at
732. Although Behar does not have convincing evidence to link CSI
with many of the strange incidents befalling these groups of
people in conflict with Scientology, that fact alone does not
allow a reasonable jury to conclude that Behar entertained doubts
as to the veracity of his statement that these incidents are
linked to CSR. Compare id. at 732 (good faith unlikely where story
is fabricated by defendant, based on his imagination, or based on
unverified anonymous telephone call). Therefore, the Court finds
that no reasonable jury could find by clear and convincing
evidence that Time published the above statement with actual
malice.

B. Statements Set Forth at Paragraph 58

CSI challenges the following as false and defamatory:

"THE LOTTICKS LOST THEIR SON, Noah, who jumped from a Manhattan
hotel clutching section 171, virtually the only money he had not
yet turned over to Scientology. His parents blame the church and
would like to sue but are frightened by the organization's
reputation for ruthlessness.

"His death inspired his father Edward, a physician, to start his
own investigation of the church. 'We thought Scientology was
something like Dale Carnegie,' Lottick says.

'I now believe it's a school for psychopaths. Their so-called
therapies are manipulations. They take the best and brightest
people and destroy them.'

"It was too late. 'From Noah's friends at Dianetics' read the card
that accompanied a bouquet of flowers at Lottick's funeral. Yet no
Scientology staff members bothered to show up."

The primary sources relied on by Behar for these statements are
the parents of Noah Lottick. The Lotticks affirmed the accuracy of
each statement in the article. See Reply Memorandum of Law in
Further Support of Defendants' Motion for Summary Judgment
("Def.'s Reply") at 12. Furthermore, the Lotticks are not
obviously lacking in credibility, and the statements are not
inherently improbable. Nevertheless, Behar made a thorough
investigation of this aspect of his article by discussing it with
various persons who knew Noah. Although Behar can be criticized
for not interviewing Fred Lemons, an active Scientologist,
asserted Scientology staff member, and former roommate of Noah
Lottick, this omission is not such that it might raise an
inference of purposeful avoidance of the truth. Cf. Harte-Hanks,
491 U.S. at 582 ("[W]hile denials coming from Connaughten's
supporters might be explained as motivated by a desire to assist
Connaughton, a denial coming from [the uninterviewed] Stephens
would quickly put an end to the story."). Any information to be
gleaned from Lemons might be expected to be similar to, though
less authoritative than, information that might be obtained from
the director of the Scientology Dianetic Center, whom Behar twice
attempted to contact. See Behar Aff. Paragraph 106. In short,
besides minor omissions in investigation, from which no inferences
of purposeful avoidance of the truth could reasonably be drawn,
(even combined with Behar's alleged bias, see supra) CSI has not
produced evidence such that a reasonable jury could find by clear
and convincing evidence that behar published the statements with
actual malice. On the contrary, as reflected in Behar's notes from
one of his conversations with the Lotticks, it appears that Noah
had spent the money to which he had access, that Dr. Lottick had
concluded that Scientology therapies were manipulations, and that
no Scientology staff members attended the funeral.[FN2] See
Affidavit of Jonathan W. Lubell, esq., at Ex. 41. Therefore, the
Court finds that no reasonable jury could find by clear and
convincing evidence that Tire published the above statement with
actual malice.

C. Statements Set Forth at Paragraph 43

Of the statements set forth at paragraph 45 of the complaint,
pursuant to this Court's ruling of November 23, 1992, only the
following remains at issue;

"Scientology denies any tie to the Fishman Scam, a claim strongly
disputed by both Fishman and his longtime psychiatrist, Uwe
Goertz, a prominent Florida hypnotist. Both man claims that when
arrested, Fishman was ordered by the church to kill Goertz and
then do an 'EOC,' or end of cycle, which is church jargon for
suicide."

Behar relied on Steven Fishman, Owe Goertz, Fishman's
psychologist, Marc Nurik, Fishman's former counsel, Vicki Aznaran,
a former Scientologist, and Robert Dondero, the assistant United
States Attorney who prosecuted Fishman for stock fraud. Although
Fishman in many respects is not highly credible, based on the
corroboration of aspects of his claim by other sources, this Court
finds that his claims are not obviously incredible. Ct. St. Amant,
390 U.S. at 732 (good faith unlikely where unverified reliance on
obviously incredible source). Specifically, Behar relied on
Goertz's evaluation of Fishman's claims, Vicki Asnaran's
corroboration of Fishman and Goertz's claims regarding the length
of Fishman's involvement with the church, the depth of knowledge
of Scientology that Fishman demonstrated, and the corroboration of
certain claims by Robert Dondero. The fact that Dondero did not
believe Fishman's claims does not undermine Behar's belief because
Dondero was at the time prosecuting Fishman, and that prosecution
would be undermined by accepting Fishman's account of
Scientology's involvement with Fishman. Cf. Harte-Hanks, 491 U.S.
at 682 (denials coming from interested witnesses would not cause
reporter to question veracity of allegations). Therefore, the
Court finds that no reasonable jury could find by clear and
convincing evidence that Time published the above statement with
actual malice.

D. Statements Set Forth in Paragraph 52

Of the statements set forth at paragraph 52 of the complaint,
pursuant to this Court's ruling of November 23, 1992, only the
following remains at issue:

"One source of funds for the Los Angeles-based church is the
notorious, self-regulated stock exchange in Vancouver, British
Columbia, often called the Scam capital of the world."

The Court finds that a reasonable jury could find by clear and
convincing evidence that Time published the above statement with
actual malice.

CONCLUSION

For the reasons stated above, defendants' motion for summary
judgment is HEREBY DENIED as to the statement set forth at
paragraph 52 of the complaint, and HEREBY GRANTED as to all other
statements.


SO ORDERED

New York, New York

November 14, 1995

/s/ U.S.D.J.


==========FOOTNOTES==========

(1) In this respect, the Court notes that both debate and
litigation have been vigorous in the case at bar. CSI published an
80-page rebuttal to the Time article, which it distributed to
church members, business leaders, and political figures. See
Memorandum of Law in Support of Defendants' Motion for Summary
Judgment ("Def.'s Memo.") at 3. In addition, CSI published a
series of full-page advertisements in USA Today challenging the
article and Time's accuracy and biases in publishing it. See id.;
Affidavit of Lynn R. Farny ("Farny Aff.") Paragraph 16, Exs. 14,
15. The discovery in this case has been extensive, even though
discovery has not yet been directed to the issue of truth or
falsity. For example, Richard Behar, the author of the article,
was deposed for 16-1/2 days over a 12 month period. See Def.'s
Memo. at 4. The submissions to the Court in support of or in
opposition to this motion consist of thousands of pages of
memoranda, affidavits, and exhibits.

(2) Although CSI asserts that Fred Lemons is a staff member, there
is no evidence that Behar knew this fact. In addition, if Behar
were trying to avoid this fact, he would not have contacted the
Scientology center.