Article alleging federal conspiracy found to be protected opinion

Article alleging federal conspiracy found to be protected opinion

12/18/95

NEW YORK–The Court of Appeals in Albany, the state’s highest court, unanimously dismissed a libel suit against former U.S. Attorney General Elliot Richardson in late November, holding that his 1991 column in The New York Times was protected opinion.

Richardson’s article, “A High-Tech Watergate,” alleged that plaintiff Earl Brian was part of a broad criminal conspiracy in which the Justice Department pirated software from Inslaw, Inc., a software company that Richardson had represented before it went bankrupt. The conspiracy’s goal was to finance covert foreign operations by the Reagan Administration that were not authorized by Congress, Richardson alleged in the October 1991 article.

The court conceded that it was “a difficult task” to distinguish between assertions of fact, which can be challenged in a libel suit, and expressions of opinion, which are given constitutional protection. The court applied a three-factor test — whether the specific language in the article had a precise meaning that was readily understood, whether the statements were capable of being proven true or false, and whether “the broader social context and surrounding circumstances” would indicate to readers that the article was likely to be opinion.

The court noted that Richardson’s article appeared on the Op-Ed page, a section of the Times usually dedicated to opinion. Although that factor was not dispositive, the court stated that the placement of the article, combined with the contents of the article itself, would alert most readers to the fact that it was an opinion piece.

“The predominant tone of the article, which was rife with rumor, speculation and seemingly tenuous inferences, furnished clues to the reasonable reader that ‘A High-Tech Watergate’ was something less than serious, objective reportage,” the court remarked.

The court noted that the purpose of the article was to advocate an independent government investigation into the alleged misuse of software that Inslaw had sold to the Justice Department. “Indeed, without a recitation of the existing unresolved charges, [Richardson]’s call for a full-scale investigation would have made no sense,” the court stated.

Richardson served in a number of cabinet positions before becoming attorney general in 1973 during the Watergate crisis. Brian, who sought $5.25 million from Richardson, was California’s health secretary while Ronald Reagan was governor. (Brian v. Richardson; Counsel for libel defendant: Toni C. Lichstein, New York City)