Conservative activist wins partial reversal of judge’s dismissal of libel claims against The New Republic

From the Winter 2001 issue of The News Media & The Law, page 37.

The U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) reversed a trial court’s dismissal of a libel and invasion of privacy lawsuit brought by a conservative political activist against The New Republic.

The court on Jan. 5 rejected most of Paul Weyrich’s claims that the article was defamatory, but allowed that “some of the article’s contested statements are both verifiable and reasonably capable of defamatory meaning.”

The New Republic published a cover article in October 1997 entitled “Robespierre of the Right — What I Ate at the Revolution,” written by David Grann. The article chronicled the political life of Weyrich, from his role in creating conservative groups such as the Heritage Foundation in 1973 to founding the National Empowerment Television channel in 1993. Grann covered Weyrich’s involvement in the John Tower hearings and his coining of the tag “moral majority.”

The article also said Weyrich experienced “bouts of pessimism and paranoia” during the Reagan Administration and mentioned that modern conservatives have acted “as nutty as Weyrich.” The article detailed several Weyrich outbursts and his alienation from Republican leaders with whom he was once aligned. Illustrations of Weyrich dressed as Robespierre, the austere 18th century French Revolution leader whose harsh laws eventually earned him the guillotine, accompanied the article.

Weyrich sued The New Republic, claiming the article and illustrations defamed him by portraying him as mentally unsound and paranoid. A federal district court judge dismissed the case in August 1999 for failing to allege the necessary elements of a defamation claim.

The appellate court upheld the dismissal of the claim that the characterization of Weyrich’s temperament was defamatory. Noting that opinions on matters of public concern that do not contain provably false facts will receive full constitutional protection, the court said it must determine whether the article’s statement that Weyrich “began to suffer bouts of pessimism and paranoia” was a verifiable fact, and therefore was capable of being libelous. To do so, it said the statement must be considered in context of the entire article. The court noted that the “opinion” exception “provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.”

The New Republic had argued in its brief for just this sort of contextual analysis of the statements made in the article.

“The First Amendment does not permit a defamation claim to be self-consciously manufactured by taking words out of context . . . To the contrary, statements alleged to be defamatory must be evaluated in context, mindful of the encouragement for robust debate on matters of public interest and public affairs that the First Amendment promotes,” the magazine argued before the appellate court.

The appeals court held that the magazine did not claim Weyrich in fact suffered a debilitating psychological condition, and that the word “paranoia” has taken on a popular meaning separate from the clinical definition.

The court distinguished Goldwater v. Ginzburg, a 1969 case that Weyrich highlighted in his appellate brief. In Ginzburg, the U.S. Court of Appeals (2nd Cir.) held that authors of a “psychobiography” of former Sen. Barry Goldwater libeled him in an article suggesting he suffered from clinically diagnosable paranoia. Weyrich claimed that the “parallels between the two articles are striking.” However, the earlier case concerned an article that “purported to be a well-researched diagnosis — which it was not,” the D.C. Circuit said, whereas the present case used “paranoia” in a more colloquial sense.

“Never does the article claim to make a psychological pronouncement, nor would a reasonable reader understand it to do so,” the court stated. “Presented in such a loose manner, in such a well-understood context, the article’s reference to ’bouts . . . of paranoia’ is neither verifiable nor does it imply specific defamatory facts.”

However, the three-judge panel ruled that several anecdotal stories about Weyrich presented verifiable facts, and therefore could be found by a jury to have a defamatory meaning. For example, Grann described a 1988 event where, after the Bush administration refused to meet with a group of Afghani resistance fighters, Weyrich hid them in an adjoining room from a visiting Vice President Dan Quayle. A Bush liaison leaked the plot to Quayle before the fighters were sprung. According to the article, Weyrich erupted in anger; “he was spitting and frothing at the mouth.” Weyrich also sent a letter to the leaker’s fiancee “questioning (his) loyalty and implying that he was unfit for marriage.” The court ruled that such a story might be reasonably capable of defamatory meaning because “it arguably makes (Weyrich) appear highly volatile, irrational, unsound and otherwise ‘odious, infamous, or ridiculous.'”

Other statements in the story that Weyrich cited in his brief, however, such as the fact that Sen. Trent Lott (R-Miss.) revoked Weyrich’s Capitol parking privileges and that Sen. John McCain (R-Ariz.) would not talk with him, were not capable of defamatory meaning.

The appellate court left it to the trial court to determine which of the claimed examples were reasonably capable of defamatory meaning, but emphasized that to be defamatory, the story must be materially false.

“If the author has merely hyperbolized, provided colorful rhetorical description of appellant’s anger, that will not suffice,” the court wrote.

The appeals court was careful to state it was not indicating how the trial court should rule on the merits, but that the trial court “must take pains to distinguish those anecdotes that are both verifiably false and reasonably capable of defamatory meaning from those that are not.” — DB