United States District Court, Northern District of Illinois, E.D
November 24, 1971
GORDON NOVEL, PLAINTIFF,
JIM GARRISON AND HMH PUBLISHING CO., INC., A DELAWARE CORPORATION, DEFENDANTS.
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.
After all discovery was completed and an extensive pretrial
order filed, both defendants presented motions for summary
judgment. Those motions for summary judgment were denied,
although I noted that the denial was,
"without prejudice to the rights of both defendants to present
the same arguments in support of an appropriate motion at the
conclusion of plaintiff's case or at the close of the evidence."
When the case was set for trial, I agreed to reconsider the
motions of both defendants for summary judgment. At that time I
stressed that I wanted the parties and particularly plaintiff to
point out in the record, i.e. the depositions, answers to
interrogatories and the stipulation of facts contained in the
pretrial order, the evidence relied on to establish the existence
or absence of malice on the part of both defendants. I also
inquired of counsel as to whether everything was presently in the
record that would be in the record at the end of plaintiff's
case. In response to that inquiry, counsel for plaintiff stated:
"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
"Rule 56 does not provide any method for exactly
determining the presence of an issue of fact, and so
each case depends upon the facts peculiar to it.
Speaking in general terms, the court
is not authorized under the rule to try issues of
fact but it has the power to penetrate the
allegations of fact in the pleadings and look to any
evidential source to determine whether there is an
issue of fact to be tried." 407 F.2d at 766.
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
"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
defendant's probable knowledge of the falsity."
In this case, as I shall illustrate in detail, plaintiff Novel
has done absolutely nothing toward bearing his burden of coming
forth with affirmative evidence.
The following facts are stipulated in the pretrial order
submitted by the parties. Plaintiff is a citizen of the State of
Ohio. Defendant Garrison is a citizen of the State of Louisiana.
In his official capacity, Garrison was carrying on an
investigation of an alleged New Orleans based conspiracy which
culminated in the assassination of President John F. Kennedy.
Defendant HMH Publishing Co. is a Delaware Corporation having its
principal place of business in Chicago, Illinois. Playboy
Magazine is printed and published by HMH in the State of Illinois
and is distributed from this State.
Some time prior to June 24, 1967, Garrison agreed to grant an
interview to Eric Norden, a free lance writer, for publication in
Playboy Magazine. The request was initiated by Playboy. Garrison
was not paid for the interview nor did he pay anyone for its
publication. The entire article was approved by Garrison prior to
its publication in the October 1967 issue of Playboy Magazine.
The verification of the facts contained in the interview
consisted of submitting the galley proofs to defendant Garrison
and to Eric Norden for checking; the galley proofs were also sent
to Playboy's research department, whose normal practice for
verification is by checking other accounts of the subject matter
previously published in the news media and in reference works.
Playboy made no effort to contact any of the persons mentioned in
the interview other than Garrison himself to verify any of the
statements concerning them.
Some time in February, 1967 Mr. Novel, knowing that one David
Ferrie figured prominently in defendant Garrison's investigation
of the assassination of President Kennedy, voluntarily disclosed
to Mr. Garrison that he (Novel), David Ferrie and one Sergio
Arcacha-Smith, the head of an anti-Castro Cuban refugee
organization, had been associated in 1961 in the removal of
military munitions from a bunker in Houma, Louisiana. Mr. Novel
told Mr. Garrison that he had been asked to participate in the
removal of munitions by Arcacha-Smith who had requested him to
wear dark clothes and come armed; that entrance to the bunker was
accomplished with the aid of bolt cutters; that the removal was
carried out under cover of darkness; and that plaintiff and his
companions had posted a look-out with a walkie-talkie radio set
in order to avoid being apprehended.
Mr. Novel received a subpoena requiring him to appear on March
16, 1967 and testify before the Orleans Parish grand jury in
connection with its investigation of the assassination of
President Kennedy. On that date Mr. Novel appeared in response to
the subpoena but was told to come back a week later.
Prior to that date Mr. Novel drafted a letter to Mr. Weiss,
whom he believed to be Chief Security Officer of the United
States State Department informing Mr. Weiss that Garrison issued
the subpoena and intended to inquire about matters which, "may be
classified top secret activities of individuals connected with
Double-Check Corp. Miami in first quarter of 1961." The letter
further advised Mr. Weiss that he (Novel) had, "no current
contact available to inform of this situation so I took the
liberty of writing you direct and appraising you of current
situation. Expecting you to forward this through appropriate
channels." Mr. Novel said he believed that Double-Check Corp. had
been a front entity of the United States Central Intelligence
After drafting the letter Mr. Novel left New Orleans. The
letter was found in his former apartment. On March 23, 1967 the
Criminal District Court for Orleans Parish, Louisiana ordered the
arrest of Mr. Novel as a material witness in connection with the
investigation into the assassination of President Kennedy. On
April 1, 1967, Mr. Novel was arrested in Gahanna, Ohio and held
in custody in Columbus, Ohio as a fugitive witness prior to being
released on bond. On March 19, 1968 the Ohio Court of Appeals
overruled a lower court order requiring Mr. Novel to return and
testify before the Orleans Parish Grand Jury. On April 13, 1967,
Garrison filed a Bill of Information in the Criminal Court of
Orleans Parish Louisiana charging Mr. Novel with conspiracy to
commit burglary in connection with the 1961 removal of munitions
in which Mr. Novel still insists he participated. On August 9,
1967 the District Attorney of Terrebonne, Louisiana also filed a
Bill of Information against Mr. Novel accusing him of burglary of
the munitions bunker. The Governor of Ohio refused to extradite
Mr. Novel on the conspiracy to burglarize and burglary charges.
The charges against him in both Orleans and Terrebonne Parishes
relating to burglary of the bunker are still pending.
Mr. Novel's involvement in the assassination investigation was
described in many articles and stories in numerous publications
throughout the country. Novel and his attorneys appeared on
television news programs in Columbus, Ohio and New Orleans,
Louisiana answering questions or making statements concerning
Novel's relationship with Garrison and the assassination.
On or about June 14, 1967, Novel sent a telegram to Garrison in
which he stated that if granted immunity from prosecution, he
would return to New Orleans to testify on various matters,
"No. 1. International Fraud;
No. 2. Public and Official Bribery;
No. 3. Intimidation;
No. 4. In my opinion the probable murder of David
No. 5. Seditious Treason;
No. 6. Mysterious Intelligence Activities from
November 1959 to date in the Southern
Quadrant of the U.S.A. and certain islands
No. 7. Hot War Games and Cold Munitions Transfers;
No. 8. Ten 1950 model Canadian Surplus Vampire Jets
Support Fighter Aircraft;
No. 9. Certain Cuban-Anglo-French Sabotage Affairs of
In his complaint, plaintiff alleges that Garrison made certain
statements intended to be understood as saying that plaintiff was
a part of a conspiracy to kill the President of the United States
and that plaintiff had committed the crime of burglary. He
further alleges that in making such statements Garrison acted
maliciously and wrongfully with a specific intent to discredit
plaintiff and to destroy his reputation. The complaint also
alleges that the charges contained in the interview were
completely false and were known by HMH Publishing Company to be
completely false, or were published by HMH with a reckless
disregard as to whether they were true or not.
Count Two of the complaint alleges that HMH Publishing Company
also printed a forward to the interview with Garrison explaining
the context and background of the interview, which was likewise
In our previous consideration of these motions for summary
judgment, one of the principal issues was whether plaintiff was a
"public figure" requiring the application of the standards
expressed in New York Times Co. v. Sullivan, 376 U.S. 254, 84
S.Ct. 710, 11 L.Ed.2d 686 (1964). That standard requires that
before a plaintiff may prevail in a libel action he must show by
clear and convincing proof that the alleged libel was published
with actual malice, that is, with knowledge that it was false or
with reckless disregard as to its truth or falsity. 376 U.S. at
279-280, 84 S.Ct. 710. The Supreme Court has since extended the
Sullivan standard to all publications where an individual is
involved in an event of public or general interest. Rosenbloom v.
Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296
(1971). There can be no question but that plaintiff, Gordon
Novel, was an individual involved in an event of public or
In anticipation of the Supreme Court's decision in Rosenbloom
(the case was argued but not decided when this motion was
reargued) I made the inquiry above referred to as to whether all
of the evidence regarding the issue of malice was presently in
the record. Three different times during argument on these
motions I directed plaintiff's counsel, in briefs to be
submitted, to point out by specific reference, all evidence in
the record on which Novel would rely to establish malice. The two
briefs filed by plaintiff in response to the two motions for
summary judgment contain no reference to any such evidence.
Upon my own review of the record, including the stipulation of
facts of which much has been recited above, the depositions and
the answers to interrogatories propounded by all parties, I find
no evidence by which this plaintiff can sustain his heavy burden
of proving actual malice against either of these defendants.
As to the defendant HMH, it is clear that the Playboy article
described not what in its opinion Novel did but rather what
someone else (Garrison) said he did. In view of the
sensationalism surrounding the Garrison investigation I can
phantom no way in which this
defendant can be held accountable for "actual malice" in
accurately printing the actual statements of an important elected
official engaged in this controversy of international
significance. See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633,
28 L.Ed.2d 45 (1971).
Of equal significance is the fact that most of the statements
alleged to be libelous originated with the plaintiff. Certain of
them have even been stipulated to be true. For example in his
complaint Novel alleges that he was libeled by Garrison's
reference to him as a burglar, referring to the so called raid on
the munitions bunker in Houma, Louisiana. Yet in the stipulation
of uncontested facts it is agreed that Novel voluntarily
disclosed to Garrison that he along with others participated in
the removal of military munitions from a bunker in Houma,
Louisiana. He also offered the fact that he had entered the
bunker with the aid of bolt cutters. He was formally charged in
the Criminal Court of Orleans Parish, Louisiana with conspiracy
to commit simple burglary in connection with the removal of
munitions and also in Terrebonne Parish, Louisiana with
committing simple burglary of the munitions bunker. While charges
of burglary fall short of conviction, failure to make such a
distinction does not constitute malice. See Time, Inc. v. Pape,
As to his involvement in the assassination investigation, Novel
voluntarily disclosed his association with David Ferrie whom he
knew figured prominently in that investigation. When he received
a subpoena requiring him to appear and testify before the Orleans
Parish grand jury in connection with the investigation of the
assassination, he left New Orleans. It is stipulated that the
Criminal District Court for Orleans Parish ordered the arrest of
Novel as a material witness in connection with the assassination
investigation. Prior to that departure he left behind a letter
describing the so called connection with the CIA. He later sent a
telegram to Garrison in which he stated that if granted immunity
he could testify on various matters including foreign
international fraud, (2) the probable murder of David Ferrie, (3)
seditious treason, (4) mysterious intelligence activities, (5)
hot war games and cold munitions transfers; and (6)
Cuban-Anglo-French sabotage affairs.
The Playboy article does not describe plaintiff as a
conspirator in the assassination plot. In fact, when his name is
first mentioned, he is identified by an editor's insert as one of
"Garrison's key witnesses".
In short, the plaintiff has set forth no evidence, and the
court's own examination of the record reveals none, which
establishes any malice on the part of Playboy in publishing this
story of international interest as told to them by a prominent
The charges against defendant, Garrison, are likewise without
support in the record. In his Brief in Opposition to Garrison's
Motion for Summary Judgment, plaintiff states that he contests
many of the statements made by Garrison. But, as stated above,
such general denials without specific averments of fact do not in
themselves establish genuine issues for trial. The plaintiff has
directed the Court's attention to no evidence which establishes
that defendant Garrison had knowledge of any falsity of the
alleged libelous statements contained in the Playboy article or
that he uttered any of those statements in complete disregard as
to their truth or falsity. Again, from a reading of the article
itself, along with the stipulation of facts and the other
evidence, particularly the deposition of the plaintiff, it
appears that the substance of the statements now claimed to be
libelous originated with plaintiff himself. Plaintiff argues that
defendant, Garrison, has libeled him by calling him a burglar.
Yet, as stated above, it
is stipulated that Mr. Novel voluntarily disclosed to Mr.
Garrison that he engaged in an escapade containing all of the
elements of burglary. Subsequent charges of burglary and
conspiracy to commit burglary by the District Attorneys for
Terrebonne Parish and Orleans Parish are admitted. In his
deposition he admitted that he himself may have made the
statement that the Houma bunker incident was, "the most patriotic
burglary in history".
As to his alleged libelous role as a material witness in the
Kennedy assassination, again it was Novel himself who, knowing
that David Ferrie figured prominently in Garrison's investigation
of the assassination, voluntarily disclosed to Garrison that he
had associated with Ferrie and others in the munitions raid. He
was also subpoenaed to appear before the Orleans Parish grand
jury in connection with the investigation of the assassination of
President Kennedy. His so-called connections with the CIA also
originated with his own voluntarily offered stories. The facts as
stipulated also establish that, Novel enthusiastically jumped
into the fray with Garrison, offering news media statements about
the Garrison investigation. His telegram to Garrison also states
that he could testify on various matters including the probable
murder of David Ferrie, seditious treason, and other matters that
appeared to him to be grist for the Garrison mill.
As in his brief in opposition to the HMH motion, plaintiff
points to no evidence by which he will establish malice, and my
own search of the record discloses none.
The motions for summary judgment are each and both granted and
judgment shall enter accordingly.
In view of this disposition on the motions it is unnecessary to
consider the other grounds urged by both defendants to support