The opinion of the court was delivered by: Campbell, Senior District Judge.
MEMORANDUM, ORDER AND JUDGMENT
This is an action for libel brought by plaintiff, Gordon Novel,
against defendants, Jim Garrison and HMH Publishing Company. At
all times relevant to this case, Garrison was the District
Attorney for the Parish of Orleans, Louisiana. HMH Publishing Co.
is publisher of a widely circulated magazine known as "Playboy".
The alleged libel occurred in an article which appeared in
Playboy Magazine and which was the result of an interview with
Garrison relating to his widely publicized investigation into the
assassination of President John F. Kennedy.
"In response to your Honor's question as to whether
all of the evidence is in the record at this point
regarding the issue of malice, I would say that as to
the defendant, HMH Publishing Company, I think that,
yes, all of the evidence regarding malice or lack
thereof is in fact now present in the record."
Plaintiff's counsel also agreed that the record was complete on
the issue of whether the defendant Garrison was entitled to
quasi-judicial immunity. Plaintiff's counsel, however, did not
think that the record was complete as to the issue of the
existence of malice on the part of the defendant Garrison,
because "particularly his motive and subjective feelings there's
something that would have to be brought out."
In light of the above statements of counsel generally conceding
the completeness of the record and upon my own consideration of
the legal arguments excellently presented by the parties, I am
convinced that the motions of both defendants should be granted
and judgment should be entered on their behalf.
In granting defendants' motions, I am of course fully aware
that summary judgment may not be granted if there is any genuine
issue of material fact still to be resolved. In determining
whether there is any genuine issue of material fact, the court is
authorized to examine the proffered materials beyond the
pleadings, particularly depositions, answers to interrogatories
and stipulations of uncontested facts, as are presently before
the court. In Kirk v. Home Indemnity Company, 431 F.2d 554
(1970), our Court of Appeals for the 7th Circuit observed that
the function of the summary judgment procedure is essentially the
same as the theory underlying the motion for directed verdict.
The decision in Kirk then quoted Professor Moore's authoritative
work in Federal Practice:
"The crux of both theories is that there is no
genuine issue of material fact to be determined by
the trier of the facts, and that on the law
applicable to the established facts the movant is
entitled to judgment. As Justice Jackson stated in
Sartor v. Arkansas Natural Gas Co. [321 U.S. 620, 64
S.Ct. 724, 88 L.Ed. 967] `a summary disposition . . .
should be on evidence which a jury would not be at
liberty to disbelieve and which would require a
directed verdict for the moving party.'" 431 F.2d at
559, citing 6 Moore's Federal Practice 2d Ed.
Paragraph 56.02(10) at 2043.
The opinion in Kirk also states appropriately that, "when a
motion for summary judgment is made and properly supported, an
adverse party may not rest upon the mere allegations of his
pleading but his response by affidavits or otherwise must set
forth specific facts as showing that there is a genuine issue for
trial. If he does not so respond, summary judgment, if
appropriate, should be entered against him." 431 F.2d at 560. In
a similar vein, our Court of Appeals in Ashwell & Company v.
Transamerica Insurance Company, 407 F.2d 762 (1969) observed:
Summary judgment procedures have been particularly utilized in
libel cases. As explained by the Court of Appeals for the 5th
Circuit in Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 867
"Freedom of expression must have a necessary
breathing space if it is to survive. If these
statements raise factual issues of actual malice,
that necessary breathing space becomes almost
meaningless. As has been noted, actual malice is a
constitutional issue to be determined initially by
the trial judge on motion for summary judgment."
The defendants in this case have cited numerous relevant
decisions where summary judgments have been granted in favor of
defendants where the pleadings and other available evidence
establishes that a plaintiff's proof on the malice issue will
surely fail. See Washington Post Company v. Keogh, 125
U.S.App.D.C. 32, 365 F.2d 965 (1966); Wasserman v. Time, Inc.,
138 U.S.App.D.C. 7, 424 F.2d 920 (1970); Thompson v. Evening Star
Newspaper Company, 129 U.S.App.D.C. 299, 394 F.2d 774 (1968);
Time, Inc. v. McLaney, 406 F.2d 565 (5th Cir. 1969); Walker v.
Pulitzer Publishing Company, 394 F.2d 800 (8th Cir. 1968); Hurley
v. Northwest Publications, Inc., 398 F.2d 346 (8th Cir. 1968);
Konigsberg v. Time, Inc., 312 F. Supp. 848 (S.D.N.Y. 1970);
Sellers v. Time, Inc., 299 F. Supp. 582 (E.D.Pa. 1969) aff'd
423 F.2d 887 (3rd Cir. 1970); Cerrito v. Time, Inc., 302 F. Supp. 1071
(N.D.Cal. 1969); Bennett v. Transamerican Press, 298 F. Supp. 1013
(S.D.Ia. 1969); Jackson v. Atlantic Monthly Company, 324 F. Supp. 1302
(N.D.Ga. 1971); and Spern v. Time, Inc., 324 F. Supp. 1201
(N.D.Pa. 1971). In the last cited Spern case, the court stated
"The plaintiff must bear the burden of coming forth
with affirmative evidence of facts indicating the