MEMORANDUM OPINION AND ORDER
Plaintiff David Price, an agent of the Federal Bureau of Investigation (FBI), brought this defamation action against defendants Viking Penguin, Inc. (Viking), Pe *1503 ter Matthiessen, and Bruce Ellison in connection with the publication of the book In the Spirit of Crazy Horse. Plaintiff alleges that the book defames him in connection with events at Wounded Knee, South Dakota in 1973 and events surrounding and subsequent to the killing of two FBI agents on the Pine Ridge Indian Reservation in 1975. Plaintiff seeks $25 million in compensatory damages. Diversity jurisdiction is alleged. The matter comes before the court on motions for dismissal or summary judgment brought by defendants Viking and Matthiessen.
I.
A.
This action has been vigorously litigated in more than one forum. 1 Plaintiff commenced the action on February 9, 1984 in the United States District Court for the District of South Dakota against defendant Viking, the publisher of the book In the Spirit of Crazy Horse; defendant Matthiessen, the author of the book; and defendant Ellison, who allegedly supplied information for the book. Plaintiff asserted causes of action for defamation, intentional infliction of emotional distress, false light invasion of privacy, and prima facie tort. Plaintiff also filed an identical action in South Dakota state court. After the state court granted the motion of defendants Viking and Matthiessen to dismiss for lack of personal jurisdiction, 2 plaintiff and defendants Viking and Matthiessen stipulated to the transfer of the federal action to the District of Minnesota. The federal action was transferred here on June 25, 1985.
Defendants Viking and Matthiessen then moved to dismiss and for a stay of discovery pending determination of their motion. Discovery was stayed on October 7, 1985, and the court subsequently dismissed certain of plaintiffs claims. These were claims for intentional infliction of emotional distress, false light invasion of privacy, and prima facie tort, as well as a number of the defamation allegations.
Price v. Viking Press, Inc.,
Discovery thereafter ensued for a period in excess of one year.
4
Depositions were taken of plaintiff; defendant Matthiessen; defendant Ellison; Elisabeth Sifton, Matthiessen’s editor at Viking; James Leach, an attorney who worked with the Wounded Knee Legal Defense/Offense Committee (WKLDOC); Karen Northcott, a WKLDOC aide; Kenneth Tilsen, an attorney who was one of the founders of WKLDOC and other persons associated with the book.
5
In an order dated December 12, 1986, the court granted, in part, a motion by plaintiff to compel discovery and established a standard for the scope of discovery. 113 F.R.
*1504
D. 585 (D.Minn.1986). Another motion to stay discovery by defendants Viking and Matthiessen was denied on February 20, 1987.
On February 19, 1987, the court dismissed the claims against defendant Ellison on the basis of res judicata.
Now before the court are three motions made by defendants Viking and Matthiessen. 7 First, defendants move for dismissal on the ground that the allegedly defamatory statements are protected opinion or merely reports of accusations. 8 Alternatively, defendants move for summary judgment on the ground that plaintiff has failed to make a showing of actual malice by clear and convincing evidence. Finally, in what was labeled a “cross motion,” defendants move for dismissal on the ground that the assertion of privilege by the federal government has made a fair trial impossible. In connection with these motions, the parties have submitted an enormous volume of materials, including multiple memoranda, complete deposition transcripts, lengthy affidavits with numerous exhibits, and the book itself.
B.
On this motion for summary judgment, the facts must of course be viewed in the light most favorable to plaintiff. The book itself is at the heart of the case, and in the course of this litigation the court has read its entire 611 pages of text and notes.
Defendant Matthiessen is a well-known author of approximately 18 books and numerous magazine and newspaper articles. 9 He states that he conducted research for the book over a number of years. Many of the persons Matthiessen interviewed in connection with his research were affiliated with organizations seeking to protect or *1505 promote the interests of American Indians. Matthiessen also interviewed plaintiff and attempted to interview Evan Hultman, a former United States Attorney connected with the events described. Prior to its publication in 1983, an excerpt from the book was published in The New York Times in different form. In preparing the book for publication, Matthiessen provided copies of the manuscript to a number of individuals familiar with the facts described and solicited their opinions. Several persons identified potential inaccuracies in the book. 10 After this action was commenced in 1984, defendant Viking withdrew all hardcover copies from circulation; a paperback version has never been published.
Though the book’s historical scope is broad, discussing the relationship between the Indian peoples and the federal government from 1835 to 1981, it largely focuses upon events related to the killing of two FBI agents on the Pine Ridge Indian Reservation on June 26, 1975. It examines conditions on the reservation and the subsequent government investigation into the killings. It also reports on the indictment, trial and conviction of Leonard Peltier, a member of the American Indian Movement (AIM), on two counts of murder. In the words of the book’s dust cover, Matthiessen “presents disturbing new evidence, obtained under the Freedom of Information Act in 1980 and 1981, which suggests that Peltier may well be innocent, and argues persuasively that in any event he deserves a new — and fair — trial.” Considerable space in the book is also devoted to a discussion of the occupation of Wounded Knee in 1973 and the federal government’s response to it.
Prior to writing the book, Matthiessen entered into an agreement with Telos Film Corp. (Telos) and the Leonard Peltier Defense Committee (Defense Committee). Under this agreement, which is dated October 1, 1980, Telos and the Defense Committee agreed to provide Matthiessen with access to information relating to Peltier, including an exclusive interview with Peltier. In return, Matthiessen agreed to share his advances and royalties from the book, providing Telos and the Defense Committee with 40 percent of the first $100,000, and 55 percent of all subsequent proceeds. This arrangement was also set forth in Matthiessen’s contract with Viking, which is dated June 8, 1981. The book does not disclose this agreement, except insofar as it acknowledges the assistance of the Defense Committee.
Plaintiff Price figures fairly prominently in the book, both in connection with the Wounded Knee trials and in connection with events surrounding the killing of the two FBI agents. Twelve pages of the book recount in detail a telephone conversation between Price and Matthiessen, in which Price sets forth his view of many of the events described in the book. In the Spirit of Crazy Horse 461-72 (1983). 11 Matthiessen concludes his description of the conversation by referring to Price as “the man regarded wrongly as the villain of the tale....” P.472.
Price alleges that statements in the book stated or suggested that [he] is a murderer; that he knowingly suborned perjury; that he violated constitutional and other rights in the performance of his duties as an FBI Special Agent; that he unlawfully harrassed [sic] American Indian Movement (“AIM”) members and attempted to destroy AIM; that he is a liar; that he is corrupt; that he is vicious and violent; that he is a racist; that he willfully neglects the duties of his job; and that he was engaged in illegal and wrongful conduct.
Complaint paragraph 9. The court’s December 30, 1985 order dismissed 14 of the allegedly defamatory statements from the complaint; 20 such statements remain to
*1506
be addressed.
12
These statements can be loosely grouped around three events. First, a number of the allegations concern the testimony of Louis Moves Camp at the trial of Dennis Banks and Russell Means arising out of the 1973 occupation of Wounded Knee, South Dakota.
See United States v. Banks,
C.
On a motion for summary judgment, the movant has the burden of establishing that no genuine issue of material fact remains and that the case may be decided as a matter of law.
Meyers v. Reagan,
II.
The Supreme Court has provided guidance as to what types of statements may provide a cause of action for libel. In
Gertz v. Robert Welch, Inc.,
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.
Id.
at 339-40,
The Court of Appeals recently adopted a four-part test to determine whether a statement is fact or opinion.
Janklow v. Newsweek, Inc.,
Thus, the four-part Janklow II test must be applied to decide that part of defendants’ motion which is based on the opinion defense, and the statements must be considered “as part of a whole.”
A.
The first two factors are specificity and verifiability. Because they are so closely related, they will be considered together.
Many of the alleged defamatory statements lack specificity and are unverifiable. For example, paragraph lOu reads:
... Like Myrtle Poor Bear and Angie Long Visitor, like the young Navajo boys bullied into testifying against their leaders, like many others on both sides whose lives have been corrupted to ensure the victory of the United States over Leonard Peltier, this man [Price] on the other end of the wire was only another casualty of the new Indian wars, and he would be soiled for the rest of his days by deeds done in the belief that the end justified the means, whether or not he ever pays a formal penalty.
P. 472. This statement is vague and unverifiable. It is impossible to verify whether plaintiff “would be soiled for the rest of his days by deeds done in the belief that the end justified the means, whether or not he ever pays a formal penalty.” Many of the other statements or portions thereof are similarly vague and unverifiable. See, e.g., Paragraphs 10a (“ ‘[T]here’s a lot of aggression [in Price], there’s something mean; he’s a very complex man. Price can be very friendly when he feels like it, and he can also look you in the face and lie — and know you know he’s lying — and still not show a damned things in his eyes.’ ” P. 93); lOt (“To judge from his speech, David Price is not a stupid man, but one whose intelligence is severely limited by preconceptions — either that, or he is a liar who not only believes but is angered and moved by his own lies.” P. 471). That these statements are vague and unverifiable suggests that they are opinion.
Other statements about which plaintiff complains are somewhat more specific. Some suggest that plaintiff had a role in the presentation of false testimony or false affidavits. For example, paragraph 10c states:
More serious than Louis Moves Camp’s lies was the all but inescapable conclusion that Agent Price and perhaps Agent Williams had knowingly prepared this man to give false testimony; at the very least, they found his story so convenient that they had not bothered to find out if it was true.
P. 98. Other statements concerning the testimony of Louis Moves Camp are the basis of paragraphs 10a, 10b, and lOd. A number of statements concern Price’s role in obtaining affidavits and testimony from Myrtle Poor Bear. Paragraph lOn contains this portion of the book, for example:
Benson could not or would not see that the two FBI agents who had prepared her testimony in two separate cases, and who knew her well, were at least as aware as Hultman that their witness was unqualified, and that under those circumstances their exploitation of her to ensure Peltier’s extradition had been a flagrant example of the misconduct on *1508 which the defense had built its case. Having decided in the first days of the investigation that Peltier was guilty (the defense declared), the FBI had constructed evidence to fit that theory, and meant to see him convicted by fair means or foul. Once Peltier had been returned to the United States, there was no point in putting that witness on the stand, where her instability might undermine the jury’s confidence in the integrity of the U.S. attorneys.
P. 348. See also paragraphs lOd, 10o, lOq, and lOw.
It is arguable that some of these statements have the specificity and verifiability required to satisfy the first portions of the
Janklow II
test. Even if this were the case, however, it would not establish that the statements are actionable fact.
15
Instead, all four factors “must be considered together, ... no solitary criterion can be dispositive, and ... ultimately the decision whether a statement is fact or opinion must be based on all the circumstances involved.”
a verifiable statement, a statement that has failed the second Oilman factor, nevertheless qualifies as an “opinion” if it is clear from any of the three remaining Oilman factors, individually or in conjunction, that a reasonable reader or listener would recognize its weakly substantiated or subjective character — and discount it accordingly.
Id. Although the statement in question was verifiable, it was nonetheless opinion because a reasonable reader would recognize that the statement likely reflected the bias of the speaker. Id. at 1290.
Thus, even if some of the statements in question pass the specificity and verifiability tests, they must be closely examined with the remaining Janklow II factors in mind.
B.
The literary context factor requires examination of the style of writing and tone, considering the statements “as part of a whole.”
*1509 The book’s very title suggests an identification with the Indian position and a powerful quotation from Crazy Horse is presented as a preface to the book. 18 The book is dedicated to “all who honor and defend those people who still seek to live in the wisdom of Indian way.” Each chapter begins with a quotation from an Indian, most of which exalt the values of the traditional Indian way of life and deplore the interference of whites with that way of life. Much of the narration is presented in the voices of Indians. 19 The book deals with historical events, but does so from a very pointed perspective. 20 The book’s tone and style suggest that the statements in question are opinion.
The fact that the statements were made in a book is relevant. The
Janklow II
court emphasized that the statement in question was published in a national news-magazine rather than in a daily newspaper. The Court noted that “magazines have a tradition of more colorful, even feisty language, than do dailies,” concluding that “the magazine’s generally freer style of personal expression and the article’s transparently [biased] posture would signal the reader to expect a fair amount of opinion.”
This is a long and rambling book; it has more than 600 pages and is loosely organized. As is stated explicitly numerous times in the book, and as would be apparent to any reader, this book has a thesis and presents a one-sided view of people and events. Its style of writing is often more lyrical than prosaic. Its intended audience is far different from that of, for example, a daily newspaper. With its $20.95 price tag and its sometimes dense presentation, the book’s intended audience would likely include students of American Indian history and persons with a specific interest in the events occurring in South Dakota in the 1970’s. This audience is more likely to understand the book as opinion than might a broader audience.
In sum, the court finds it almost impossible “that a reader could confuse
[In the Spirit of Crazy Horse
] with purely objective, neutral, straight factual reporting. Its nature, tone and style all indicate opinion.”
Saenz v. Playboy Enters., Inc.,
C.
The
Janklow II
court stated that “speech about government and its officers, about how well or badly they carry out their duties, lies at the very heart of the First Amendment.”
In the Spirit of Crazy Horse
contains an enormous amount of this kind of speech, and therefore “implicates core values of the First Amendment.”
Id.
at 1303. Indeed, the book contains little else; it considers the history of government policies towards and treatment of American Indians, as well as examining the conduct of government agents involved in Wounded Knee and the reservation murders investigation. It is speech about government and about government officials. It is the “form of speech which the Framers of the Bill of Rights were most anxious to protect.”
FCC v. League of Women Voters,
D.
The court has carefully considered all of the allegedly defamatory statements still remaining in the case in conjunction with the Janklow II factors and the record and finds that they fall into the opinion category. Many of the statements completely lack specificity and verifiability. Although some of the statements are arguably specific and verifiable, the literary and public context factors indicate that the statements must be classified as opinion. A reasonable reader would recognize the subjective character of the statements in the context of the book as a whole. As criticism of government, the statements are entitled to the maximum protection of the First Amendment. They cannot provide the basis for a defamation action.
III.
Some of the allegedly defamatory statements are actually quotations from persons accusing Price of wrongdoing or are statements that rumors existed to the effect that Price had acted wrongly. For example, paragraphs 10k and 10s state:
A few days later, Kunstler took this matter up with Agent Price, whom some of the Indians, at least, had suspected of involvement in the killing [of Anna Mae Aquash]____
Tilsen, who had dealt with Price since the time of Wounded Knee, and knows most of the Indian people Price has dealt with, had no patience with my speculations on this man’s blind obedience to the System. “In my opinion, David Price is one of the most corrupt and vicious agents in the FBI....”
Pp. 306, 461. Plaintiff has not disputed the accuracy of these reports; that is, that some Indians did suspect Price and that Tilsen made that statement. 22 Instead, plaintiff argues that reporting the existence of suspicions or such statements is itself actionable and that authors cannot act “as a sort of conduit for untreated sewage of raw rumor.” Plaintiff's Supplemental Memorandum in Opposition to Defendants’ Motion for Summary Judgment at 3.
The Janklow I panel addressed this issue in considering an article in Newsweek magazine that reported that a rape allegation had been made against Governor Janklow at one time. The panel unanimously rejected the possibility of liability on this basis alone, stating:
To the extent the publication of the rape allegation has caused harm to Janklow’s reputation, this harm is the result of a materially accurate report of historical fact, not of an assertion by Newsweek that Janklow committed the alleged crime. Because the publication of a materially true statement is constitutionally protected, Garrison v. Louisiana,379 U.S. 64 , 73 [85 S.Ct. 209 , 215,13 L.Ed.2d 125 ] (1964), and because the article in *1511 question cannot be read to imply that Newsweek espoused the validity of the rape allegation, we find no error in the District Court’s judgment for Newsweek on this claim.
IV.
Defendants also move for summary judgment on the ground that plaintiff has failed to make an adequate showing of “actual malice,” as required by
New York Times Co. v. Sullivan,
Amendment requires a rule barring damages for a defamed public official “unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Id.
at 279-80,
The Court has since amplified the evidentiary standard for actual malice. The “reckless disregard” standard means that there “must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”
St. Amant v. Thompson,
A.
The “actual malice” standard applies to defamation actions brought by “public officials.”
New York Times,
First Amendment policy concerns behind the
New York Times
decision favor extending the concept of public official to include FBI agents when acting publicly in the course of their duties. The conduct of such agents in exerting their federal authority is a matter of legitimate public interest. Here, plaintiff and other FBI agents were involved in unusual events and volatile situations on Indian reservations. The public has an interest in learning about law enforcement responses to crises and emergencies and in learning about conditions on the reservations. In this sense, then, plaintiff’s conduct touched on “an issue of national importance, the treatment of Indian people.”
Janklow II,
B.
In an attempt to meet their burden of showing that “the defendant in fact entertained serious doubts as to the truth of his publication,”
St. Amant v. Thompson,
The record indicates that Matthiessen took considerable care in writing the book. He circulated his manuscript among knowledgeable persons, solicited their criticisms, and made corrections where he considered it appropriate. He recognized that several of his sources of information might reflect a pro-Indian, anti-government bias and sought out other viewpoints. He interviewed plaintiff, and devoted twelve pages of the book to that interview, in which Price expresses his view on many of the events in question. Pp. 461-72. He attempted to interview former United States Attorney Evan Hultman, but Hultman refused. Pp. 497-98. Viewed in the light most favorable to plaintiff, however, the facts may suggest that Matthiessen was careless in writing certain portions. The quality of the book could well have been improved by an additional editing. Negligence, however, "is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.”
New York Times,
Plaintiff places great emphasis on Matthiessen’s agreement with the Defense Committee. But the discovery of this agreement does no more than reinforce the already apparent one-sidedness of the book. The book argues for a new trial for Leonard Peltier. Like a legal brief or a political tract, it is not a neutral description of events. Matthiessen’s affiliation with the Defense Committee does not make it more likely that he had serious doubts as to the truth of his publication. In fact, his willingness to donate a portion of the book’s royalties could evidence his sincere belief in the cause he promoted and the words he wrote, but on this motion the court will not draw such an inference. That the book is one-sided does not show actual malice: “The deliberate choice of [one of a number of possible rational interpretations] ... [is]
not enough to create a jury issue of malice’ under
New York Times.” Time, Inc. v. Pape,
The court finds little or no support for plaintiff’s argument that “collateral falsehoods” may provide a basis for inferring actual malice. As the District of Columbia Circuit recently held, “defamation plaintiffs cannot show actual malice in the abstract; they must demonstrate actual malice
in conjunction
with a false defamatory statement.”
Tavoulareas v. Piro,
Finally, even a superficial investigation reveals that some of the allegedly defamatory statements are not false. For example, paragraph lOw reads:
... And since Marshall’s continuing appeal is essentially based on FBI misconduct involving the same witness [Myrtle Poor Bear] whose false affidavits ensured Leonard Peltier’s extradition from Canada, the outcome of his case is bound to affect Peltier’s own chance for a new trial.
P. 476. In
United States v. Peltier,
After considering all of the evidence presented by plaintiff with respect to defendants Matthiessen and Viking, the court finds that it “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.,
V.
Defendants also seek dismissal on an additional basis in their so-called
“Fitzgerald”
motion. Defendants made this “cross motion” in response to the federal government’s motion for a protective order with respect to the deposition of plaintiff. United States Magistrate Floyd E. Boline granted the government’s motion on November 21, 1986 and issued an order prohibiting plaintiff from disclosing the identity of any FBI informant under the common law informer’s privilege and preventing inquiry into grand jury proceedings pursuant to Fed.R.Crim.P. 6(e). Relying almost exclusively upon
Fitzgerald v. Penthouse Int'l, Ltd.,
Fitzgerald
involved an article published in Penthouse Magazine which asserted that a scientist, who did work with dolphins for the CIA and the Navy for military and intelligence purposes, sold “dolphin torpedoes” to other countries. Plaintiff scientist alleged that the article libelously charged him with espionage. When plaintiff identified a Navy employee who would testify that he had not disclosed any classified information, the Navy intervened in the case and moved to dismiss on the ground that the trial would lead to the disclosure of privileged state secrets. Finding that “the very subject of this litigation is itself a state secret,” and that “no amount of effort and care on the part of the court and the parties will safeguard [the] privileged material,” the court affirmed the dismissal of the action.
The court is not persuaded, however, that
Fitzgerald
should lead to dismissal of this action. First, it is not at all clear that the holding extends beyond contexts involving military or state secrets privileges to encompass other privileges. Second, the
*1515
Fitzgerald
court carefully limited its holding to situations in which “the very subject of [the] litigation is itself” privileged.
VI.
This litigation has gone on a long time. Plaintiff has had ample opportunity for discovery and to establish an actionable case, but defendants have shown they are now entitled to summary judgment. Plaintiff appears from time to time in this court as a dedicated public servant and is understandably distressed by portions of In the Spirit of Crazy Horse. But it is not for this court to balance his distress with the right to freedom of speech vigorously asserted by defendants. The Supreme Court has already struck that balance with respect to public officials, and in the absence of clear and convincing evidence of actual malice with respect to a statement of fact concerning plaintiff, the balance tips in favor of free speech. For all the reasons previously discussed, this action should be dismissed.
Accordingly, based upon the above, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. The motions of defendant Viking Penguin, Inc. and Peter Matthiessen for summary judgment are granted, and the complaint is dismissed.
2. Plaintiff’s motions to compel discovery and for sanctions are dismissed as moot.
3.The counterclaim of defendant Ellison is dismissed without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Notes
. This court has issued a number of previous orders and opinions in this case which provide additional background.
See, e.g.,
. The state court also granted a motion by defendant Ellison to dismiss for failure to state a claim.
. The court convened a conference call with the parties on January 10, 1986 to discuss appointment of a settlement master. At the start of the conference, the court referred to the policy considerations on each side of the case and the conflicting ways the parties view themselves. Plaintiff no doubt sees himself as a public servant performing difficult and dangerous work who has been unfairly and meanly portrayed for his efforts. Defendants, on the other hand, say they are performing the important function of criticizing government conduct through the full dissemination of information and ideas. The parties agreed to appointment of a special master, and a number of settlement attempts followed without success.
. In addition to discovery between the parties, defendants have also sought discovery from the government to establish the truth of the allegedly defamatory statements. Disputes arose between defendants and the government over this discovery, some of which also involved plaintiff.
. Some of these depositions were quite extensive. For example, the deposition of Matthiessen took place over eight days, and its transcript exceeds 1100 pages in length.
. The record shows no effort by Ellison to conduct discovery or prosecute his counterclaim in this court. The deadline for discovery is now past. In view of his failure to prosecute his counterclaim here and his apparent ability to proceed with it in South Dakota state court, his federal counterclaim should be dismissed without prejudice.
. In view of the dismissal of the claims against defendant Ellison, "defendants" shall hereafter denote defendants Viking and Matthiessen.
Plaintiff has also filed motions which have not yet been completely resolved. On October 1, 1987, he moved to amend the pleadings, to compel discovery, and to impose sanctions. In an order dated October 28, 1987, the court granted plaintiffs unopposed motion to amend the complaint to correct the name of the corporate defendant and stayed consideration of the remaining motions pending resolution of defendants' motions. Plaintiff seeks sanctions pursuant to Fed.R.Civ.P. 26(g), 37(a)(4) and 37(b)(2) on the ground that counsel for defendants failed to comply with the court’s order governing the scope of discovery at the deposition of Matthiessen. Plaintiff also wants attorney’s fees and costs that would be incurred if Matthiessen were deposed again.
. Because the parties have presented matters outside the pleadings which the court has considered, the motion to dismiss should be treated as one for summary judgment. Fed.R.Civ.P. 12(c).
. For example, Matthiessen is the author of The Snow Leopard, for which he received the National Book Award in 1978.
. For example, James Leach, an attorney with WKLDOC, criticized Matthiessen’s theory that the federal government’s treatment of Indians at Wounded Knee and Pine Ridge was driven by interests in mineral deposits on Indian lands. There has been no showing, however, that any of these persons identified inaccurate statements that concerned plaintiff.
. The book shall hereafter be referred to by page number only.
. Many of the statements are quite lengthy; some take up an entire page of the book. See, e.g., paragraphs 10a, 10b, lOf.
. In
Janklow v. Newsweek, Inc.,
. Courts have almost uniformly adopted "an approach that analyzes the alleged defamation in the context of the article in which it appears along with the larger social context to which it relates.”
McCabe v. Rattiner,
. The Court of Appeals has noted that "[w]hile allegations of specific criminal conduct generally cannot be protected as opinion, broad brush-stroked references to unethical conduct, even using terms normally understood to impute specific criminal acts, may be understood by the reasonable viewer as opinion.”
Lauderback v. American Broadcasting Cos.,
. The Fourth Circuit applied the four-part test set forth in
Oilman v. Evans,
.Even in the absence of such explicit acknowledgements, Matthiessen’s sympathies would be apparent. For example, Matthiessen adopts the term "goons” that was used by some Indians on the Pine Ridge Reservation to refer to the police force organized by the tribal council president. See, e.g., pp. 70, 73, 250. Matthiessen writes that ”[t]he Reservation Murders investigation was concerned only with the killing of the agents; it did not concern itself with the dozens of murders committed in the past three years on the reservation, almost none of which had ever been investigated, far less solved.” P. 195. The tone of such writing strongly suggests that Matthiessen identifies with the Indians critical of government policy over this time period.
.This quotation reads:
We did not ask you white men to come here. The Great Spirit gave us this country as a home. You had yours. We did not interfere with you. The Great Spirit gave us plenty of land to live on, and buffalo, deer, antelope and other game. But you have come here; you are taking my land from me; you are killing off our game, so it is hard for us to live. Now, you tell us to work for a living, but the Great Spirit did not make us to work, but to live by hunting. You white men can work if you want to. We do not interfere with you, and again you say, why do you not become civilized? We do not want your civilization! We would live as our fathers did, and their fathers before them.
Crazy Horse (Lakota)
. For example, the history of Leonard Peltier’s life is told almost exclusively through quotations from Peltier. See pp. 41-58.
. Though it describes actual events, the tone of the book as a whole cannot be considered “hard news” reporting. For example, the Introduction begins with poetry:
The buffalos I, the buffalos I ...
I am related to the buffalos, the buffalos.
Clear the way in a sacred manner!
I come.
The earth is mine.
The earth is weeping, weeping.
. This view has a long heritage.
See, e.g., Whitney v. California,
. Tilsen’s statement itself would appear to be opinion insofar as it lacks precision and specificity and is unverifiable.
.The parties dispute the weight of
Janklow I
as precedent. Plaintiff argues that the panel decision was vacated by the en banc reconsideration and that it has no precedential value. Defendants assert that the en banc opinion reviewed a limited portion of the panel decision, noting that the en banc decision explicitly left certain of the panel findings undisturbed.
. In an earlier opinion, this court cited authority suggesting defendants could be liable for republication alone.
. In an earlier opinion, the court only touched on this issue.
See
. All of the alleged defamatory statements concern acts of plaintiff in his law enforcement capacity or perceptions of persons he encountered in that capacity. As such, they must be considered in the context of the First Amendment's emphasis on protecting criticism of official conduct. Different considerations would be relevant if the statements had concerned private conduct.
. Plaintiff argues that direct evidence of subjective doubt exists in this case, relying upon statements by Matthiessen in his deposition that he did not believe all of the rumors he reported in the book. These rumors were reported as rumors, however, rather than as true statements asserted by the author himself. The existence of a rumor can be an important historical fact. Because plaintiff does not question the existence of the rumors, he is not asserting that their accurate reporting is a false statement. Such reports are not actionable as mentioned supra at 1510-1511. Matthiessen’s statement of disbelief in the rumors is not evidence of actual malice where the rumors are relevant to other text.
.In large part, plaintiff applies the factors in the framework discussed in Bloom, Proof of Fault in Media Defamation Litigation, 38 Vand.L.Rev. 247 (1985).
. Plaintiff asserts that the court cannot grant summary judgment for defendants at this time, arguing that he is entitled to "a full opportunity to conduct discovery,”
Anderson,
Because the complaint should be dismissed, plaintiffs motions to compel discovery and for sanctions covering the costs of further discovery are moot.
. Defendants argue that the complaint focuses on allegations that plaintiff failed to investigate fully various matters, such as the identity of Anna Mae Aquash’s body, the truth of Louis Move Camp's testimony, and the truth of Myrtle Poor Bear’s affidavits. In order to establish the truth of these assertions as their defense, defendants contend that they must know whether plaintiff questioned all persons with relevant information, including FBI informants. Because the Magistrate's order prohibits defendants from discovering the identity of FBI informants from Price, defendants argue that plaintiffs claims cannot be fairly litigated.
.The
Fitzgerald
court relied, in part, upon an earlier Fourth Circuit decision,
Farnsworth Cannon, Inc. v. Grimes,