*1 Through nated docket. his attorney,

Gates now asks that we reconsider our ter- motion, two-page

mination order. In a at-

torney Moore his prose- attributes failure to press

cute of other obliga- difficulty

tions and in procuring assistance appeal. The attorney claims that he has

been in a criminal appeal involved in anoth- circuit, practitioner

er is a sole

carries a full load teaching at a local law

school, and that he been has unable —for

financial reasons —to obtain needed techni-

cal pro assistance anticipated bono sup-

port. assertions,

These the truth of which we

assume, way justify in no the attorney’s

apparent disregard for his client’s interests professional responsibilities. his We find

inexcusable the attorney’s failure to file his brief,

client’s respond this court’s show order,

cause or even to seek an extension of

time for filing papers. Despite this behavior, we grant

unconscionable the mo- reopen

tion docket. At stage we penalize

choose not to Gates for attor- inaction; however,

ney’s we will refer the

matter of the attorney’s conduct to the

panel which hears the merits of this case

for consideration of any action deemed ap-

propriate in the circumstances. OLLMAN, Appellant,

Bertell EVANS,

Rowland Robert Novak.

No. 79-2265.

United States Court of Appeals,

District Columbia Circuit. Silver, City, York a member Isidore New Argued Dec. New Supreme Court of of the Bar of the court, leave York, vice, hac pro by special Decided Aug. Dranitzke, Washington, with whom Alan Rehearing En Banc Granted brief, D.C., appellant. on the 6, 1983.* Oct. 111., Feldman, Chicago, ap- A. Daniel 111., Jacks, also Chicago, Ronald A. pellees. appellees. appearance entered * Opinion vacated. *2 ROBINSON, WALD, campus, and College allegedly Chief Park was Judge,

Before until quite precipitat- well the event MacKINNON, faring Judge, and Senior Circuit ing litigation transpired.4 this Judge. Circuit appellees, The Rowland Evans and Rob- PER CURIAM: Novak, widely-publish- ert are authors of a The of the District Court judgment 4,1978, syndicated May ed column.5 On to the and the case is remanded reversed candidacy on Oilman’s prepared article proceedings. for District Court further appeared in and other Washington Post judg- concurs in the Judge Chief Robinson country.6 Captioned newspapers across opin- ment the reasons set forth in his for Intentions,” Professor’s this “The Marxist Judge ion. Wald concurs Circuit column briefly “pub- on an asserted touched set forth in her remand for the reasons the propriety lic debate” over of Oilman’s Judge Circuit MacKinnon opinion. Senior nomination, and then focused on what the subject princi- in the remand concurs ques- the “central authors denominated opinion. his ples set forth in tion”: beliefs, his not Oilman’s inten- ...

ROBINSON, Judge: Chief his writings His candid avow de- tions. use classroom an instrument sire to suit is now This defamation before calls “the preparing for what he revolu- grant Court’s of sum- court on District this is a form of indoctri- tion.” Whether for the The mary ap- defense.1 judgment real nation that could transform the func- alleged- presents major one issue: Are peal university and transcend limits tion of defamatory ap- statements of which ly of academic freedom is a concern acad- representations of fact complains pellant McCarthyite emicians who neither an action libel or capable supporting know-nothing.7 nor unconditionally pro- expressions opinion which, paragraphs Because I several by tected the First Amendment? There followed from Oilman’s writ- quotations think well be material issues selected there regards affecting ings, suggest tended to that Oilman availability fact statements, winning the classroom as a forum ad- several of then to Marxism. The article as- herents the District reverse serted: pro- for further Court and remand

ceedings. one hooted pamphleteering Such major

political in a eastern uni- scientist scholarship versity, whose has as a liberal are well known. “Oilman Oilman, a Marx- appellant, The Bertell but is a profession, no status within the March, science.2 In professor political ist activist,” he said. pure simple committee composed polit- search Oilman is described Confiding “[wjhile University Maryland ical scientists at the ‘respected in news accounts Marxist Oilman to head that institution’s nominated scholar,’ widely profes- he viewed in Department Politics and Government.3 activist,” the column de- political sion as a approved by the Prov- nomination outspoken proponent as “an University the Chancellor of scribed Oilman ost of the 6; 4, J.App. Evans, (D.D.C. F.Supp. Complaint 4. admitted Answer 1. Oilman ¶ 4, J.App. 1979). 13. ¶ 6; J.App. Complaint admitted Answer 5. ¶ Evans, F.Supp. 2. Oilman 3, J.App. 13. U 7; Complaint ¶ J.App. in Answer admitted Evans, Complaint 79-0526 Oilman v. No. ¶ 5, J.App. 13. H 6; (D.D.C.), Appendix (J.App.) Joint admitted Evans, supra, J.App. entirety appears in Answer Oilman v. in its text of the article ¶ appendix to this as an ” ‘political Marxism.’ It concluded libelous statements are statements of opin- posing questions: protected several ion by the First and Fourteenth Amendments the Constitution of the true What is the measurement of Oil- United States.”14 The District Court scholarship? man’s Does intend to use *3 agreed, characterizing the complained-of the classroom for indoctrination? Will he passages “opinions,” “conclusions,” followed by pro- indeed be other Marxist “interpretations,” all of which its view fessors? Could the department time were constitutionally insulated.15 Perceiv- non-Marxists, following closed ing no any indication supporting at several tendency English universities? data false, outlined in the were column libelous Deeming several statements and discerning implication no that there existed Oilman, in this piece, innuendoes through other, undisclosed facts were defama- counsel, his wrote to Evans and Novak de- tory, granted court the motion.16 On manding print This retraction.8 appeal, Oilman attacks each facet of the they declined to do.9 Ultimately, Oilman reasoning. court’s was departmental denied the chairman- alleges He post loss this was II ship.10 attributable to false and defamatory state- The First Amendment special embodies a ments in additionally, column;11 solicitude for unfettered expression opin- avers it damaged his as a ion. proposition That is traceable to Gertz integrity” “scholar of and caused him Welch, Inc.,17 v. Robert where the Court “great distress and mental anguish.”12 stated: Charging Evans and Novak with actual begin We ground. the common malice, he punitive seeks as well as compen- Under First Amendment there is no satory damages.13 thing false idea. However per- Evans and Novak moved for judgment seem, on opinion may nicious an we depend single ground that “all of the for allegedly its correction not on the conscience of 9, Complaint 8; j| J.App. motion, 8. alternatively admitted in Answer This framed as one for 9, J.App. 14. pleadings summary on for U judgment, accompanied by copies was of an 9. 9, 8; Complaint J.App. article, book, excerpt admitted in Answer from a letter to 9, J.App. Post, Washington 14. the editor all written H by Oilman; retraction, demanding a letter writ 10. Evans, 1, supra attorney; complete F.Supp. copy Oilman v. ten note 479 his and a . newspaper containing allegedly column de famatory Supp.App. remarks. See 2-3. These 10, Complaint matters, J.App. pleadings, apparently outside the were Tf which, pursu considered the District Court 12. Id. 12(c), properly ant to Fed.R.Civ.P. then treated summary judgment. the motion one for 13. Oilman has Stanton, pleaded damages 669, 671-672, Carter well in v. 405 excess U.S. 92 jurisdictional 1232, 1234, 569, required by (1972) amount S.Ct. 31 28 572 (1976), Complaint 10, (per curiam); Treusdell, U.S.C. 1332 see Mazaleski § v. 183 U.S. J.App. 8, 182, 189, 701, opponents App.D.C. suggested (1977); have not 562 F.2d 708 allegations specious that these Moreland v. Western Pa. made in Interscholastic Athlet See, 121, e.g., Mercury League, (3d Cir.1978); bad ic faith. St. Paul 572 F.2d Indem. 126-127 Co., 283, 288-289, Typographical Co. v. Red Cab 303 Milwaukee Newspapers, No. U.S. 58 Union 23 v. 590, Inc., 386, (1938); (7th S.Ct. 82 L.Ed. 639 848-849 F.2d 390-391 Apton Wilson, Cir.), denied, 22, 34, U.S.App.D.C. v. 165 454 102 cert. U.S. S.Ct. (1974); (1981). F.2d Murphy, Sullivan v. L.Ed.2d 119 U.S.App.D.C. 938, 960, cert. Evans, supra F.Supp. 15. Oilman denied, 94 S.Ct. 38 L.Ed.2d (1973). Id. Judgment Pleadings Motion For Summary Judgment (filed May 10, For 1979), Evans, Oilman Supplemental 17. 418 U.S. S.Ct. Appendix Appellees (Supp.App.) Brief for might Gertz not have juries competition but on judges formulation — But fully anticipated. of other ideas.18 been while Gertz confirms existence of passage first clear While neither that nor expressions opinion, degree which verbalization Supreme provided other Court decision has libel laws in local preempts Constitution guidance recognizing much statements opinion, pre- defamatory area of Court for First Amendment “opinion” that are govern- viously had hinted limitations on purposes. impose civil or criminal power mental belief, judgment,

liability statements York Times involved misstatements New York Times Co. v. sentiment. New in nature about the han- obviously factual Sullivan, the landmark decision that first by po- of racial unrest dling incidents *4 explicated the between constitu- interplay to fair comment its reference lice,21 guarantees speech press of free tional in a appears, afterthought, almost an for defamatory and common law sanctions at end footnote of misstatement, the Court observed: in Garrison allegedly libelous comments Since the Fourteenth Amendment re- judges were lazy, —accusations that certain priv- the conditional quires recognition of inefficient, corrupt proble- more —were fact, it ilege for honest misstatements of However, the disposed matic. Court of fair follows that a defense comment ground that the criminal statute case on expressions be afforded honest must penalized unconstitutionally at issue both upon privileged, based as well spitefully-motivated true accusations and true, statements fact. Both defens- pub- misstatements about negligently-made public defeasible if the es are course lic it Because invalidated officials.22 proves official actual malice....19 statutory prosecution, basis for the Louisiana, a prosecution And in Garrison find it necessary classify Court did not libel, again adverted criminal Court fact the remarks as or opinion.23 comment, it finding unnecessary fair Cooperative Publishing Associ- Greenbelt that case “whether decide context of decision, Bresler,24 pre-Gertz has ation v. appellant’s merely factual or was treated the Court as subsequently been comment, may provide or whether a State even it did not criminal, “opinion” though if any remedy, defamatory civil or case,25 dichoto- alone, vituperative, explicitly opinion-fact refer comment however di- public newspaper had my. rected at There the defendant officials.”20 truthfully reported proceed- fully set out in Gertz opinion privilege at which meeting council ings city pro- in earlier thus foreshadowed zoning variance was Bresler’s request nouncements, although degree of consti- reports debate. The subject of heated protection to be afforded state- tutional characterization of quoted speakers’ several belief, interpreta- judgment, ments of as “blackmail.”26 After seemingly position Bresler’s tion —a absolute under 18. Id. at 1537, 6, 339-340, 3007, 26 L.Ed.2d 6 U.S. 90 S.Ct. 94 at 41 L.Ed.2d 398 S.Ct. (footnote omitted). (1970). at 805 19. 376 30, 710, 254, U.S. 292 n. 732 n. S.Ct. 496, Nat’l Dominion Branch No. See Old (1964). 713 n. 30 11 L.Ed.2d Austin, U.S. Ass’n of Letter Carriers 2770, 2781-2782, 283-286, S.Ct. 217 n. U.S. 76 n. 85 S.Ct. (1974). 761-763 134 n. 10 L.Ed.2d 21. See 376 U.S. at 258-259, 84 at 714- S.Ct. 1538, 1541, 7, 12-13, S.Ct. at at 715, 11 L.Ed.2d at 693-694. 11, 14. 26 L.Ed.2d at 379 U.S. at 13 L.Ed.2d at S.Ct. 134-135. at 76 at 217 n. Id. n. 85 S.Ct. 134 n. 10. literature, that the determining jury had been union improp- generally attributed to au- erly meaning “malice,” London,”31 instructed on the thor Jack that defined “scab” as, Court went hold the com- among other things, “a traitor to his plained-of not support God, statement could country, his his family and class.”32 even proper verdict of libel with a again, instruc- Once the Court found defective the Noting tion.27 that both “malice” given instruction to the jury; it request Bresler’s variance and the develop- then held the critical statements non-libe- meeting ments at the council had been ac- lous as a matter federal law. It rea- out, curately set the Court concluded: that, soned context labor dis- pute gave which rise to simply impossible It is the newsletter to believe that a statement, “use words reader who like ‘traitor’ can- reached the word “blackmail” not be construed as representations in either article would not have under- fact.... words obviously Such were exactly stood what used was meant: it was loose, here figurative in a public wholly Bresler’s sense demon- legal negoti- strate the strong disagreement union’s ating proposals were criticized. the views those No workers who thought oppose reader could have that either Greenbelt, unionization.”33 Recalling at the speakers meeting or the news- Letter Carriers Court it paper “similarly found reporting their words were articles impossible to believe that reader of the charging Bresler with the commission of *5 Carrier’s a Corner would offense. have understood the criminal On the contrary, newsletter to be the charging appellees even the most careless reader must have with committing the perceived that criminal the offense of word was no more treason.... Jack hyperbole, than rhetorical a London’s ‘definition of vigorous a epi- scab’ merely thet those rhetorical a hyperbole, lusty used who considered Bres- and imaginative expression negotiating position ler’s of the contempt extremely un- felt Indeed, by union members reasonable. toward those who the record is com- join.”34 refuse to pletely devoid of evidence that anyone in the city of Greenbelt or anywhere else Gertz itself involved accusations that the thought Bresler had been charged with a plaintiff a large file, police had held an crime.28 position official in a organization Marxist Old Dominion Branch advocating No. violent government, National seizure of Association Letter Austin,29 Carriers v. and was a “Leninist” a and a “Communist- companion Gertz, case to presented a fronter.”35 Although some- two first obser- what similar set of facts.30 The clearly factual, vations seem defendant latter two union had a published member’s conceivably newsletter could be as regarded expres- in which it the plaintiff listed as “scab,” a sions of opinion. Court, the author’s and quoted a piece “well-known however, of trade did not discuss applicability 27. Id. at 10-15, 1540-1542, 90 S.Ct. at L.Ed.2d at 760-763. It therefore seems safe to L.Ed.2d at 12-15. regard explication Letter Carriers as a further of those cases. Id. at 90 S.Ct. at 26 L.Ed.2d at 15 (footnote omitted). 31. Id. S.Ct. at 41 L.Ed.2d at 752. Supra note 25. Id. holding actually in Letter Carriers rest- ed on the that federal labor laws Id. at 94 S.Ct. at 41 L.Ed.2d at extend to communications made the course 761-762. dispute. expressly a labor While the Court claim, did not reach First Amendment see 285-286, id. Id. S.Ct. at L.Ed.2d 418 U.S. at 283 n. 94 S.Ct. at 2781 n. at 762-763. interpretation L.Ed.2d at 761 n. its heavily labor laws rested on First Amendment cases, including defamation Gertz. See 418 35. 418 U.S. at S.Ct. at 282-286, 2780-2782, U.S. at 94 S.Ct. at at 797-798. sure, To be neither Gertz nor Hutchinson these statements.36 opinion privilege held that the statements at issue expressly that “Leninist” and “Com- noted merely It However, light opinion. were considered “generally munist-fronter” to reach the ultimate willingness Court’s Gertz, that having decided defamatory;”37 prolong issue rather than defamation have to meet figure, a did not private as re- type litigation sensitive most Times standard demanding New York regard in these dispositions malice, it remanded mand41 the issue of proof on statements in cases indications as new There was no for a trial. capable each a libel supporting were were any of the accusations suggestion that judgment.42 law, constitutional as a matter of incapable, Supreme out the Court cases Rounding deemed libelous. bearing have some believe on defa- Similarly, in a recent statement meaning of are two decisions “opinion” a mation, reversed Court magazine articles which summa- involving trial a case and remanded for defendant susceptible differing in- rized documents arguably could featuring statements Inc. terpretations. Time Pape43 In Hutchinson v. as be classified public-figure plain- Gertz case with a pre- libelant, a United alleged Proxmire,38 Time, recapitulating tiff. in the course of Senator, plaintiffs had described States Commission, re- Rights the Civil report of animal research governmentally-funded brutality Pape charges police peated “transparent worthless- “nonsense” and asway such a to indicate that the accusa- use mo- Branding public ness.” independent findings by the tions reflected had added “outrageous,” nies the Senator actuality, Commission. Commis- fact, good doctor has made “[i]n presented charges had report sion’s monkeys proc- from his fortune party’s rights in a third civil allegations American monkey out ess made The issue before the Court complaint.44 The Court ruled Time “engaged thus was whether had taxpayer.”40 *6 were not immunized observations report] sufficient in ‘falsification’ [of Clause, that and Debate determined Speech finding ‘actual jury to sustain a of itself public figure, ”45 not a report was as a plaintiff Looking to the malice.’ no intimation that whole, back with found “a document that

sent case the Court it therefore were with allegedly libelous remarks bristled any of ambiguities”;46 of what the summary Time’s privilege. characterized within 2780, 25, 282, 36. Court, opinions having 418 at 94 S.Ct. at 41 L.Ed.2d U.S. announced that protection, 760-761.' at command constitutional absolute privilege. allude to did not thereafter deserving Perhaps mention is the also 42. pre-Gertz Metrome- decision in Rosenbloom v. 4, 37. 418 4,n. 3003 41 U.S. at 331 94 S.Ct. at n. 1811, 29, dia, Inc., 91 29 L.Ed.2d 403 U.S. S.Ct. at n. 4. L.Ed.2d 800 appeared (1971), plurality will- where the 296 ing Metromedia’s characteriza- to assume that 2675, 38. Ill, 61 L.Ed.2d 411 U.S. 99 S.Ct. 443 as “the smut of Rosenbloom’s business tions (1979). “girlie peddlers” book racket” and literature defamatory. being capable of deemed were 2678-2679, 39. Id 116, 61 at S.Ct. at L.Ed.2d 99 57, 1826, 29 id. 91 at L.Ed.2d at at S.Ct. 319. 40. Id 279, 633, 28 L.Ed.2d 45 401 91 S.Ct. 43. U.S. Ass’n, Publishing See, Coop. e.g., 41. Greenbelt 24, 11, Bresler, supra 637, U.S. at 90 note 398 284-285, Inc. v. 28 S.Ct. at L.Ed.2d at Id. at 91 44. 13; 1540, York 26 at New at L.Ed.2d S.Ct. 50. 19, Sullivan, supra 376 U.S. v. Times Co. 284-285, 728-729, 639, 289, at 28 L.Ed.2d at 53. at 84 S.Ct. at 91 S.Ct. at 45. Id. at 496, Nat’l Dominion Branch No. 709. Cf. Old Austin, 28 at 91 L.Ed.2d 53. Id at S.Ct. v. of Letter Carriers Ass’n

844 interpre- interpretation “said” statement tional ambiguous

document an docu- his- tation or rather than one of ment is constitutionally protected.”54 The Deeming reading a toric fact.47 Time’s explained Court It disagreed. Pape an one, the that plausible Court held no libel standard,55 application the actual-malice possible in recovery was such circumstanc- apparently thus foreclosing possibility from Pape opinion, es.48 It is unclear really decision was an “opinion” however, whether the Court reasoned that case. Because the of fault question had not statement could not consti- challenged been properly submitted to the jury, subjected to a tutionally post hoc evalua- Firestone, making Court remanded it very falsity tion of truth or because it was an clear the jury could decide whether expression opinion,49 rather that interpretation of Time’s the divorce decree capable being adjudged was a one and if it impose liability “false” incapable erroneous labeled found that Time bore blame.56 malicious because reasonableness misinterpretation.50 Ill uncertainty This about the rationale of pronouncement Gertz’ the First Pape appears to have been resolved Amendment confers absolute Firestone,51 Time, Inc. v. a post-Gertz expressions of opinion stands as one of wherein private-figure plaintiff charged the cardinal principles speech free erroneously Time reporting Yet, that her press. brief my pertinent review husband been granted Supreme had a divorce on illustrates, defamation cases Court grounds of “extreme cruelty and adul- it is a principle implementation on whose 52 tery.” The divorce prompting decree the Court has been silent. virtually Since Gertz, news item was hardly clarity,53 model of high- federal courts of appeals,57 Time, citing Pape, argued states,58 that a “ra- est courts of several the American 290-291, 639-640, See, Id. e.g., 91 S.Ct. at 28 Cianci v. New Times Co., Cir.1980); L.Ed.2d at (2d 639 F.2d 61-67 Hotchner Castillo-Puche, (2d v. 551 F.2d 913-914 Id. at 290-292, 639-640, 91 S.Ct. at Cir.), denied, cert. U.S. S.Ct. L.Ed.2d at 53-54. (1977); Buckley Littell, L.Ed.2d 95 882, F.2d denied, (2d Cir.1976), 893-895 cert. See, e.g., id. at 91 S.Ct. at (1977); 97 S.Ct. (“[w]here reported L.Ed.2d at 54 the document White, Cir.), (3d Avins v. 642-644 ambiguous was, on is so as this one it is hard denied, cert. 449 U.S. 101 S.Ct. imagine put a test of ‘truth’ would not (1980); Scientology L.Ed.2d 244 Church of publisher virtually mercy unguided at the *7 Cazares, 1272, (5th 638 F.2d 1286-1289 Cir. jury”). discretion of a 1981); 1227, NBC, Street v. 645 F.2d 1232-1233 Co., (6th Cir.1981); Argus-Press Orr v. 586 See, 290, e.g., 639, id. at 91 at 28 S.Ct. 1108, (6th 1978), F.2d 1114-1115 Cir. cert. de (“[tjhe L.Ed.2d at 53 deliberate choice of such nied, 1502, 960, 440 U.S. 99 S.Ct. 59 L.Ed.2d interpretation, though arguably reflecting (1979); Corp. 773 Information Control v. Gene- misconception, enough jury was not to create a 781, Computer Corp., sis One 783-784 Times”). issue of ‘malice’ under New York Cir.1980); Newsweek, Inc., (9th Dixson 562 51. 424 626, 448, (10th 958, Cir.1977). F.2d 631 These cases U.S. 96 S.Ct. 47 L.Ed.2d 154 (1976). markedly comprehensiveness differ with they “opinion” which treat the issue. 52. Id. at 452, 964, 96 S.Ct. at 47 L.Ed.2d at 161. See, e.g., Gregory Douglas v. McDonnell 53. See id. at 467-469, 971-972, 96 S.Ct. at 47 596, Corp., 425, 17 Cal.3d 552 P.2d 131 Cal. (concurring opinion). L.Ed.2d at 170-172 Rptr. (1976); 641 Em National Ass’n Gov’t ployees, Broadcasting Corp., Inc. v. Central 379 54. Id. at 459 n. 4, 4, 96 S.Ct. 967 47 at n. 220, denied, (1979), Mass. 396 N.E.2d 996 cert. L.Ed.2d at 166 n. 4. 935, 2152, 446 U.S. 64 100 S.Ct. L.Ed.2d 788 Holt, Winston, (1980); Rinaldi v. Rinehart & 55. Id. Inc., 1299, 42 N.Y. N.Y.2d 366 N.E.2d 397 denied, 458-459, cert. 434 S.Ct. id. at S.2d U.S. 98 96 at 47 S.Ct. (1977). L.Ed.2d at 54 165-166. L.Ed.2d 456

845 marking portion speech commenta- off that and various Law Institute,59 60 protec- accorded absolute constitutional just have endeavored ascertain tors tion rather than the conditional protected of statements are what kinds opinion61 of fact.62 representations afforded of the difficulty opinion. Cognizant to the fact that undertaking, resigned and the continuum are state- At one end of superimpose categorical any attempt for want of a better might, ments that en- infinitely variable area ordering term, are “pure” opinion. be called These oversimplification, I nevertheless tails some expressions commonly regarded which guidelines may be purposeful believe that adjudged “true” incapable of cases disposition fashioned inform the objective sense of those “false” raising this issue. taste, aesthet- personal Matters terms. beliefs, ics, criticism, religious mor- literary recognition start with candid views, convictions, social political al and neatly of statements cannot be universe all fall within this class.63 theories would equa- divided, discernible logically might sort that These are statements tor, hemispheres of fact and into sur- and whose be altered discussion64 the transi- opinion, Fact is the and germ society’s of our discourse part vival as expression fact to tion from assertion of committed competition should be a continuum. along is progression place “market” of ideas.65 determine, charge reviewing A court’s principles inspiring First light “pure-opinion” near the end of Also think, often jurisprudence continuum, and the defin- “loosely Amendment are those able, generally common countervailing policies underlying variously interpretable,”66 frequently remarks peace derogatory law and de- colloquial argument line about in mind, point flung at which to draw the pub- (Second) vincing proof that the misstatement was of Torts 566 § 59. See Restatement knowledge accompanying it was false either with comment. lished falsity. disregard truth or or in reckless of its Carman, See, e.g., v. Proxmire Hutchinson Sullivan, supra note New York Times Co. v. Neglected Defense: An and the Fair Comment 279-280, at S.Ct. at 376 U.S. 84 Malice,” 30 DePaul Alternative to “Actual Butts, 706; Co. v. U.S. Curtis at 388 Christie, Defamatory Opinions (1980); 1 L.Rev. 1995-1996, 162-165, 18 87 S.Ct. Torts, (Second) of the Restatement 75 Private-figure (1967). 1115-1117 L.Ed.2d Keeton, (1977); Defamation Mich.L.Rev. and, negligence plaintiffs at least must show Press, and Freedom of 54 Tex.L.Rev. 1221 go prove actual unless can further and Wade, (1976); Torts and Communicative malice, may only compensatory dam- recover Amendment, (1977); the First Miss.L.J. Inc., Welch, ages. Gertz v. Robert Opinion Note, Fact After v. Robert Gertz 3010-3012, 347-350, 94 S.Ct. at 418 U.S. Welch, Privilege, The Evolution of Inc.: L.Ed.2d 809-811. Rutgers L.Rev. White, supra E.g., F.2d Welch, Inc., Avins v. supra note Gertz v. Robert Cf. alia, (inter 3007-3011, is an academic ennui 339-348, “there 94 S.Ct. at pervades The intellectual (balancing the institution. at 805-810 the needs students.”); spark missing faculty society’s concern First Amendment *8 481, Co., Newspaper F.Supp. v. Globe reputation, 489 Loeb to arrive at a standard of alia, (inter actions); private-figure “probably culpability (D.Mass.1980) in libel of 486 n. 6& Publications, America”). Fairchild newspaper Waldbaum v. 201 U.S. in the worst 1291-1298, 301, 305-312, 1287, App.D.C. 627 F.2d denied, 898, 266, Co., rt. U.S. 101 449 S.Ct. Publishing v. New Times 64. See Cianci ce (1980) (similar balancing, 128 57, supra at 62 10. note 639 F.2d n. fig- identifying public at a arrive standard ures). States, 616, 630, v. United Abrams 250 (1919) 63 1180 40 L.Ed. S.Ct. degree and 62. The of afforded false (dissenting opinion). varies, course, defamatory of fact of statements plaintiff. officials with the of the Public status F,2d Littell, Buckley supra at v. 539 note 66. defamatory public figures and can recover 895. clear and con- factual misstatements on of hallmark these statements is or wrongdoing, hyperbolic as colorful and bate.67 or they not that are innocuous impotent, applications of language. say This is not to they have moved so far into publication rather of such statements will of have epithet realm vernacular damaging never be to the and expressions generalized become of criticism psyche targets. of their At this end of the dislike, specific or divorced from factu- any continuum, however, First our Amendment Indeed, underpinning. al evaluating commitment free circulation of ideas and statements as “true” or “false” is proble- unfair, beliefs—no matter how unreason- largely difficulty matic of the of because able, unseemly or appear to be— at a arriving precisely consensus on what bars the law of defamation assessing, from evidence would be relevant and sufficient according to some standard orthodoxy, justify their use.68 propriety justification or for such statements.

Finally, al- metaphorical language is also “pure” opinion. lied to When context Expressions at or pure-opinion near the it that a is apparent makes word used end of the continuum probably constitute imaginatively figuratively or without portion a only small of the statements that rely its intention literal subjects become of defamation lawsuits. meaning,69 “true” labels and “false” are inapposite. common, Perhaps far more certainly and with, more difficult to deal types All these statements statements seem clear- that reflect the author’s ly to fall within the deductions eval- ambit the constitu- at opinion tional uations but the same time are They be “laden would privilege.70 with factual recognized by apparent pro- most listeners and content.”72 readers71 as expressions personal portion opinion taste or in “hybrid” convic- to fact these tion that are simply matters of statements varies opinion, considerably. For exam- as rhetorical venting outlets for anger ple, incompetent statement that “Jones is contempt without imputing any specific job” to handle suggests specific Castillo-Puche, E.g., supra v. opinion assessing Hotchner note fact or as it does whether alia, (inter “toady,” “hypo- 551 F.2d at capable conveying the statement a defam- crite,” open board”); “never atory meaning. example, above Loeb v. epithet For “fas- Co., Newspaper supra Globe note flung pig” police angry cist at a officer an F.Supp. (cartoon plaintiff n. 486 & presents very demonstrator different showing emerging forehead). cuckoo from his from use of the term “fascist” in an article accusing having a man been one Mussoli- See, e.g., Buckley Littell, supra v. note situation, ni’s henchmen. In first “fascist” “fascist”, (regarding 539 F.2d at 893 “fellow likely protected opinion; classed as traveler”, right”, context, and “radical in their second, actionable, culpably it would be if as statements of because of the “tre- false, as an assertion of fact. imprecision meaning usage mendous political of these terms in realm of de- deciding, matter, In threshold whether a bate”). defamatory susceptible of statement mean- ing, viewpoint the court assumes E.g., 24-34; supra text at notes Loeb v. publication audience to which the was directed. Co., Newspaper supra Globe Jaffe, Afro-American Co. v. F.Supp. (plaintiff paper by para- at 486 “runs U.S.App.D.C. F.2d at paranoids”). noids for 655; Patterson, U.S.App.D.C. De v. Savitsch 358, 360, (1946); Restatement constructing categories sug- (Second) accompanying of Torts § gesting examples, imply I do not mean viewpoint appro- comment. This same every phrase word or can be accorded im- priate perspective determining whether a designation applies mutable at all times representation of fact an ex- publication all circumstances. “[The] Littell, pression Buckley whole, must be taken aas and in the sense 894; supra note 539 F.2d at Information it which would be understood the readers to Corp. Computer Corp., Control One Genesis it whom was addressed.” Pub- Afro-American *9 Jaffe, F.2d at 784. lishing U.S.App.D.C. Co. v. (1966) (en banc) (footnote omitted). plays Co., supra Context as essential a role in 72. Cianci New Times determining challenged whether a statement F.2d at 63. whole, of fact into a but, specified, seems assumed assertions on the factual conclusion degree subjective from fairly high a statement of drawn import simple to contrast, a judgment. By Having an grounds. supplied enumerated closer appears a much is murderer” “Smith background, of the factual accurate account Yet, ana- objective to assertion of fact. an have or be said to misled the author cannot of murder could be the accusation lytically, the matter dis- deceived the reader about it, opinion, like the regarded as cussed, if the author’s ultimate conclu- even conclu- incompetence, reflects a charge sion —the hybrid statement — by reached the author on ultimately sion although the au- sense be erroneous. And interpre- and amalgamation the of an basis may carry some derogatory judgment thor’s underlying facts. tation of vir- damage simply by to power reputation pure opin- differ from Hybrid statements eyes, tue his in the reader’s think status which most they ion in that are remarks fairly a correlation high it safe to posit capable denomi- people regard would as damage by whatever is inflicted between “false,” depending upon or nation as “true” personal ap- reader’s the and the hybrid facts are revealed to background what the reasonable, justified, praisal how time, generally the are they be. At same is in of the judgment light “true” that facts logician not scientist propositions circumstances, hybrid set forth. In these regard provable “facts.” would little threat pose statements would seem is whether these kinds of question hard safeguarded interest by statements, express author’s which both can ordi- they defamation law because spe- judgment import presence subject to and fair narily rigorous will be warranting cific facts At fully-informed readers.74 by evaluations within the absolute time, their claim to First Amend- the same hybrid of a state- proponent When because, accompa- great ment all pertinent to the reader ment discloses presentation perti- full and fair by nied background completely facts accurate- data, pri- background they nent share believe, strong argument, ly, there pure immunizing characteristic of mary including hybrid within realm of data presence as the of accurate opinion, privilege.73 absolute these circumstanc- element really active only ensures that es, recognize can hybrid the reader compo- interpretive judgmental and, synthesis placing it beside author’s nent. facts, up own predicate make of First problem balancing with this how much and credence weight mind about implications and defamation Amendment conclusion. In ef- give the author’s appropriate it is hybrid statements is fect, transform the background facts is, case—that where a11 perfect for the reader from a hybrid eyes accurately background facts suffused with un- material conclusion judgmental White, enraged, grabbed knife and argument apply equally a butcher 73. The would knows, already lunged with from the room toward Smith case where reader across sources, personal gun, all the weapon observations or other her raised. Smith drew out heart, facts. pulled relevant White’s aimed it at trigger. from the wound. Smith White died Times, Inc., E.g., Gambling Stuart is a murderer. (D.N.J.1982). point F.Supp. This can hybrid likely readers would consider Most neatly hypothetically. Author is be illustrated to be an irrational and is murderer” “Smith person who takes the extreme view that the Presumably, their conclusion. thus a “false” killing is under all human another one adversely be affected would not view Smith the fol- Author makes murder. circumstances regarded commonly as an would be what lowing communication: charge. application Be- unreasonable evening, went White’s house. Smith One data, possess all the relevant the readers cause gun cus- had her small that she She im- the factual deceived tomarily purse protection. her carried in plications “murderer.” of the word began esca- a discussion that She White point, argument. At one into a heated lated *10 him, forth with the The along set bal- data accurately assembled before hybrid.75 radically, believe, ance a hy- shifts when might give even credence au- more to the appears brid without recitation thor’s conclusion.78 un- Hybrid statements facts, or underlying when those facts are accompanied facts, at- by any predicate or or When erroneously incompletely. stated underly- tended defective recitals of the case, is that reader is unable to facts, ing occupy should thus a very differ- judgment place perspective, the author’s position law, ent the concerns libel because he either is completely ignorant claim to protection their First Amendment background facts is in some sense also is less If the compelling. background they misled as to what are. false hy- deficient, reaching data the reader are then, the potential, brid statement has to hybrid remains as much statement considerable, wreak unjustified damage to interpretation facts supplied A reader with no reputation.76 them.79 background may at all well assume that reasons, these For I would conclude that support derogato- there are facts which a hybrid may claim conclusion, absolute ry if particularly it is announced privilege when it apparent author with A is accom- assurance.77 opinion80 given incomplete facts, panied by reader a full incorrect and accurate narration of mistakenly supposing that all pertinent or, the material if mate- facts81 Corp., 75. See hypothetical, Adler v. American Standard one more on variation F.Supp. 572, (D.Md.1982) (“there is a dis- the case Author sto- consider where recites the simple opinions expres- tinction ry between except Smith’s encounter White that sions of which indicate that describing he omits the sentence how White facts”). based on undisclosed note 73 See also event, at Smith came with a knife. In this supra. probably statement “Smith is a murderer” is damaging to both most Smith’s long recognized: 76. This has been deceptive hypothetical most of all the hybrids accompanied by appar- because it accurately is done, To state what a man has which, face, ently complete set of facts on their say your opinion and then to justify dishonorable, its use. disgraceful assume neither the dam- conduct is is age deception significantly harm, nor the every if comment which do no lessened judge opin- one can himself Author had said instead “I think for whether the Smith is expressed problem ion well founded or not. Misde- murderer.” The not with the read- scription conduct, hand, only ability recognize on the other er’s to this is Author’s conclusion, leads to person inability sepa- the one conclusion detrimental to the but rather with an to misdescribed, out, whose conduct is erroneously suggested, rate and dismiss as opportunity judging leaves the reader no for component charge the factual “murder- himself for the character of the conduct [sic ] er” circumstances. condemned, nothing picture being but a false presented judgment. Although requires First Amendment “[t]he Robertson, L.Rep. Christie v. 10 New S.Wales protect we some falsehood in order 157, quoted Patterson, supra in De Savitsch v. speech matters,” protect Gertz v. Robert U.S.App.D.C. at at 17. Welch, Inc., supra note 418 U.S. at S.Ct. at at “there is no Consider, example, variation constitutional value in false statements hypothetical supra. in note This time Au- Id. at facts.” 94 S.Ct. simply thor makes the unelaborated statement persons “Smith is a murderer” to with no knowledge underlying circumstances. is, course, hybrid always 80. The entitled average unlikely reader consider even qualified privilege least the First Amend- possibility that Author entertains a bizarre ment accords factual statements. See conception of “murder” which fails distin- accompanying and text note 82 infra. guish unjustified killing between intentional My concern in this case is determine when a Accordingly, self-defense. the reader is hybrid quantum will receive the of additional apt to assume the existence of some factual predicate warranting, according to common opinion privilege. afforded understanding, charge use of the “murderer”— accept I also the claim particularly of absolute ap- if Author were who someone

peared hybrid unaccompanied position statements be in a to know about by predicate made to incident. facts when readers who *11 erroneous, all hybrid omitted or when the should be held to forfeit claim to rial data are or error is traceable to factual omission privilege absolute and be afforded that public figure, in the case of a actual malice accorded quantum protection purely or, private figure, the of a to what- in factual misstatement in the circumstances.83 degree culpability adopted has been ever I the recapitulate, To think absolute First the state’s defamation law.82 by relevant proclaimed in opinion privilege Amendment believe, I the approach, This is dictated be held to shield four catego- Gertz should for the factual adequately need account first ex- ries of statements. includes hybrid the statement. If load carried taste, sentiment, pressions personal and the it hybrid presents along- the author of are and essentially inherently values that predicate side recital of material facts subjective in nature. In the group second or, if and inaccu- complete, that accurate general derogatory epithets are those and duty or satisfies the care incomplete, rate slogans”84 flung “undefined about in the making representa- in he must meet factual economic, political, course of and de- social tions, interpreta- or the ultimate bate express contempt that extreme disa- he through hybrid tion announces any particular without greement connoting from no liability, should be immune matter which, language factual basis. Third is unreasonable, spiteful intemperate, how context, from obviously its used in the culpably be. If the author fails to may it figurative hyperbolic requisite background, then the sense. These three provide the data, however, already pertinent background imperative, see ab- have all tutional extend the text, supra accompanying hybrids privilege note 73 and antici- in solute false cases where however, pating, culpably provide that instances of this sort will the author fails to full and relatively background be few. accurate material data. 82. The author’s recitation of data position I have advanced is similar to course, may, variety be defective for of a Law taken American Institute gamut run from a of reasons. These pletely com- (Second) and Restatement of Torts. § ignorance innocent and excusable clear, however, illustrations 3 & It is not key facts a deliberate and malicious with- imposes, think whether the Restatement as I holding relevant material. In between are proper, underlying be a condition that the facts varying errors omissions attributable to fully reported privilege before absolute can be degrees negligence and recklessness. In- Appellees argued that have all that is claimed. required holding supply stead failure to com- trigger privilege is disclosure of plete predicate automatically and accurate data underlying factual for the some of the basis opinion claiming disentitles the author from statement; import hybrid if this is the statement, hybrid I believe that Restatement, respectfully express my I must require taking First considerations Amendment rule, disagreement. Were that could one culpability author’s account of the deficien- (1) truthfully out facts that Smith went set presentation. cies the factual therefore house, quarreled, gun took out a to White’s by analogy adopt the standards of care White; deliberately intentionally (2) shot developed in New York Times and Gertz. See maliciously the fact that White attacked omit Thus, supra. plaintiff note ing when claim- knife; (3) first announce conclusion public figure, public libel is a official murderer; (4) is a claim that Smith pertinent inquiry should be whether the au- absolutely privileged be- communication provide thor’s failure to full and correct back- reported which accu- cause the facts were were ground is traceable to actual malice. data private-figure plaintiff hybrid accompanied by rate and the involved, When a slight- As this has said in a factual basis. court question whether at mini- critical should be context, ly “[pjartial are not different truths negligent setting mum author was out necessarily mitigating even branch hybrid. bases If the material factual law, may be for the defamer the more predicate error or the recital omission hook with truth.” when baits the successful nonculpable data is found under the relevant Jaffe, Co. Afro-American standard, false, hybrid, though should then U.S.App.D.C. at 366 F.2d at absolutely privileged opinion though even supra. 655. See note damage it reader mislead the the vic- reputation. degrees of tim’s These think, Employees Angelos, necessary, prophylac- Union 84. Cafeteria for the same 126, 127, 293, 295, purposes purely 88 L.Ed. 64 S.Ct. tic are needed when factual I see no assertions involved. consti- by the types are characterized absence of kind of literary criticism that would be ab- they are any suggestion grounded in a solutely privileged subjective expres- specific predicate, factual and I have locat- sion of if “pure” opinion; in the realm of opinion” ed them “pure near the end of the all, report was at *12 best category continuum. The fourth embraces hybrid presented with no background data statements, which I have termed “hybrids,” Thus, dispositions in those whatever.89 that specific both intimate the existence of cases are not with my at odds view on the facts, and convey author’s ultimate scope of the opinion privilege. facts, interpretation those provided that such are accompa- statements IV by nied a full and accurate account of the I now my turn attention to the facts, passages material or that incom- of the pleteness inaccuracy syndicated column which are predicate subjects data case noneulpable according complaint to the at bar. appli- agree cable standard of care. with the District that Court Evans’ and Novak’s characterization of Oilman as an I do imply perceive not mean to that I my “outspoken proponent ‘political Marx- delineation scope of the of the privi- ”90 ism’ absolutely privileged. It falls lege to be clearly by mandated any of the definable, well within the of “loosely class Supreme Court’s defamation decisions. variously interpretable opin- statements of believe, however, that it is responsive to, ion ... inextricably made in the contest of and certainly with, not inconsistent what political, philosophical social little can be de- gleaned from them. For ex- bate ....”91 ample, “Political Marxism” is are, Greenbelt and Letter much Carriers terms, their own ambiguous instances of too a slogan permit a court to accorded language used figuratively hy- really determine whether it defamatory, where the much less to ascertain whether the claim perbolically.85 Hutchinson;86 challenged press release called the plain- propounds Oilman it is actually false.92 tiff’s research “transparent worthlessness” very Presenting a different problem, and remarked that he was personally profit- however, is the column’s observation that ing from a pointless expenditure of tax [wjhile Oilman is described in news monies, the plaintiff claimed that the re- “respected accounts as a Marxist schol- lease “contained an inaccurate and incom- ar,” he widely profession viewed in his plete summary of Hence, research.”87 political a activist.93 if the allegedly libelous comments Marxism,” case Like “political the term “politi- viewed as hybrids, issue squarely joined had been cal activist” not normally on whether a full be deemed and fair however, account of predicate here, appears factual had As it been defamatory.94 provided. The it report content read reasonably could be implying divorce decree in Firestone88 was not the antithesis of interpreta- This scholarship.95 supra 85. See text at notes 24-34. 92. This is not a wherein the author has terminology defined the critical the state- supra 86. See text at notes 38-41. precise impart meaning ment so as to particular context. 87. 443 U.S. at 99 S.Ct. at infra, Appendix, 93. See If supra 88. See text at notes 51-56. Nor, matter, very precise. is it See 424 U.S. at 96 S.Ct. at (reprint para- at 161-162 of the entire graph complained of). standing 95. A term not libelous when alone defamatory in context in which it has infra, Appendix, 90. See See, damaging e.g., connotation. De Savitsch Patterson, U.S.App.D.C. Buckley Littell, supra 539 F.2d at 359, 159 F.2d at 16. do peers A statement Oilman’s not the authors’ later com- is reinforced tion submit, stands, I as a scholar respect him ments: from a statement footing quite different is hooted at pamphleteering Such do not themselves Evans and Novak major eastern political scientist one latter well fall might him as one. The rank scholarship reputa- university, whose “pure” category opinion, into the “Oil- are well known. tion as a liberal of the value Oil- subjective appraisal profession, no within the man has status former, however, if man’s writings.99 activist," simple pure ais representation cer- actually fact,100 said.96 higher than a state- hybrid no tainly rises characterized The District Court It the authors’ ultimate may convey ment. *13 “that as the authors’ submission statements pro- political what the science assessment of a in his field as a reputation lacks [Oilman] Oilman, implies of but it also fession thinks a agree jury reasonably I scholar.”97 inducing of facts that conclu- the existence re- the import could find98 overall as evaluations of Oilman’s work sion —such that, been although marks be Oilman has academics, sampling a of critical reviews respected as a schol- press described in articles, poll a taken of of his or of members colleagues do ar, actually his professorial sign is of profession there little —and doubt, regard him as such. Without not predicate in column in any such factual is the attribute of scholarship quintessential passage is directed to a suit. Our attention a say To professional competence. describing Oilman came in last in two how presumably who professor’s peers, academic American Political Science Association elec- of capable evaluating are those most this fact has to do just what tions,101 work, of his do not rate him scholarly reputation real merit with Oilman’s immediately highly impugn profes- profession apparent as a scholar is to is not me; indeed, professes itself some severely. the article sional infra, added). “pam- Society, “ponderous Appendix, (emphasis 11 tome” 96. See K not, course, infra, 11, Appendix, phleteering,” jffl lia- 10 & Authors are of insulated from see bility they merely obviously fact subjective judgment virtue of the within be an repeat purportedly said. “The what another pure opinion. the realm of protection to law no those who couch affords reports repetition.” their libel in the form of or treating the There some reason for state- 100. Ass’n, Olinger Loan v. American Savs. & purports representation. It ment a factual 142, U.S.App.D.C. 409 F.2d categorically what a finite set of to announce Accord, Pittsburgh Publishing Courier giv- people political about scientists —think — Lubore, U.S.App.D.C. v. Co. scholarship. theory subject In at en —Oilman’s (1952); New Times F.2d Publishing Cianci v. least, falsity representation of this the truth Co., supra note 639 F.2d at 60- by polling empirically each be established could 61; Newsweek, Inc., supra v. Dixson note tabulating group the re- member of the 562 F.2d at 630-631. in itself of the answers is sults. That each Evans, supra F.Supp. respondent’s opinion note not make the sum- Oilman does mary many people gave answer which how recognize, I how- less a of fact. statement threshold determination on whether ever, group opinion large on a defamatory capable bearing cannot, logistical given subject often rea- court; meaning is for the the ultimate conclu- sons, poll. through a In be universal obtained meaning was indeed sion on whether such cases, reporter would-be conveyed jury. Olinger v. American sample survey extrapolate or from must from a Ass’n, supra Savs. Loan note & reason, this I it that the For take other data. Accord, App.D.C. at 409 F.2d at 144. degree ele- issue reflect statements at Co., New Cianci v. Times By interpretation. no ments of White, 60; supra note Avins v. 639 F.2d however, means, accept suggestion do I 644; Scientology Church of pure opinion. they represent Cazares, supra F.2d at vein, I Evans’ and No- similar consider infra, Appendix, j[6. book, Alien- vak’s characterization of Oilman’s Conception Capitalist ation: Marx’s Man uncertainty automatically about leads acceptance.” to its “[w]hether [the a professional represent election Non-Marxist students are defined as results] [] Oilman, colleagues.”102 judgment by his yet those “who do not understand Marx- hand, points published the other to a 1978 place ism.” The “classroom” is a where which, claims, he “a survey poll so “bourgeois ideology student’s leading representative political scien- prior dismantled.” “Our task” before “10th tists” ranked him in the entire field revolution, writes, “is to make more all scientists in terms of political occupa- revolutionaries. The revolution will that, I prestige.”103 tional thus think al- enough occur when there are of us to though wholly the matter is not free from make it.”105 doubt, sparsity supporting facts in initially excerpts would note that these column, coupled survey with the Oilman literary, do not represent scholarly, or ideo- proffers, raises a issue as to wheth- genuine logical They criticism. do not advance the er there was a omission or error in culpable authors’ views of personal such attributes presented the background facts to the read- style, writing quality Oilman’s of his er.104 analysis, value correctness I come to a set of finally statements ideas he advances. While comments Oilman’s relating writings and to what assume, type, kind pure *14 assertedly they objectives reveal about his opinion that lies at the core opinion as an instructor: privilege,106 quoted the passages purport to His candid avow his writings desire to use describe the substantive content of Oilman’s pre- classroom as an instrument for article. jury reasonably A could read these what paring he calls “the revolution.” Oilman, passages as in saying his writ-

ings, openly admits that he wishes use to to Oilman’s classroom indoctrinate his intentions become in students explicit “On Teaching and them into Marxism and transform Marxists.107 To be Building Movement,” sure, his article in whenever an the Winter author undertakes issue New of Political encapsulate Science. Most stu- and describe the contents of dents, claims, conclude his work, course with lengthy another’s the product apt a “Marxist outlook.” Oilman concedes to reflect of own some amount the author’s that will be “as seen an admission that interpretation judgment. Here, and how- my purpose of course is to convert ever, a component of significant factual students to socialism.” representation through, particu- also comes

That larly bothers him not at all in because “a and un- strong apparently correct understanding (as of Marxism in- equivocal phrases writings as candid “[h]is deed any body of of truths) avow,” scientific intentions explic- “Oilman’s become argue Id. Evans and Novak here public figure. gener- whether is a Oilman “[r]unning political for ally Publications, office is an act of activ- Waldbaum v. Fairchild That, Appellees ism. ...” Brief for of note 61. course, point. misses The issue is not whether Oilman indeed an activist of infra, 3, 7, Appendix, 105. See flU sort, professional colleagues but whether his regard “political op- him as a activist” as supra. 106. See posed according up to the antithesis set in — “respected column —to a Marxist scholar.” accept suggestion I Oilman’s view that a classroom, that a teacher uses his not for the Silver, 103. Letter from Isidore counsel Oil- goal impartial advancing educational his stu- man, demanding to Evans and Novak retrac- progress, partisan dents’ intellectual but for tion, appended Complaint, supra as personal purpose recruiting po- them to his B, J.App. Exhibit damaging implies litical is a one that creed perversion say of the academic mission. To disposition In view of its entire case pur- falsely professor ground that a admits such a opinion on privilege, defamatory. pose well be found question District could Court did not reach the by culpable therefore has been forfeited omis- it” and “Oilman concedes.”108 re- passages properly these should be facts which supporting think sions or errors hybrid statements of what Oil- garded as offered its readers. the article writings say man’s about his intentions

the classroom.109 APPENDIX A fair amount of material point provided this the column under THE MARXIST PROFESSOR’S attack, direct largely quota- in the form of INTENTIONS writings. tions from Oilman’s There is danger becoming frivolous What however, question, as the complete- appointment over debate public predi- ness and with which these accuracy head University Mary- Marxist Court, cate facts are set out. The District politics govern- department land’s review, after a careful found “[w]hile ignored has far this con- unspoken ment so refer writ- [Evans Novak] [Oilman’s] community: cern within academic ings speeches, Oilman’s statements political activists to many avowed desire selected to reflect Portions [their] higher use education for indoctrination. contrary viewpoint to Evans’ and Novak’s Oilman, to name Bertell proposal also carefully The court omitted.”110 University, at New York de- professor suggested thought that “this has generated wrong-headed head partment biased an examination journalism,”111 op- who in to jumped debate. Politicians quoted text could full of the sources philoso- his Marxist simply Oilman pose appellation lead to believe that one justifiable going-over have then, phy received conclude, may not be undeserved.112 from defenders academic freedom present also passages genuine university. Academic Prince press absolute issue whether *15 infra, majority wary Appendix, are still of the label “Marx- 108. See KK ist”). happens, these students Where this Indeed, with whom opening paragraph know better than most comrades of Evans’ they adopted princi- I have when and how this as talked Novak’s column identifies its most, pal the break with theme: Marxist outlook. For bourgeois ideology place to have taken seems becoming danger is in a frivolous What backs, so that at one moment behind their they public appointment of a debate over (or liberals considered themselves University Maryland’s Marxist to department head worse), quite and then a little later —without government politics has they noticing the considered unspoken ignored so far concern within transition — themselves socialists. community: the academic the avowed desire my concern with such If non-Marxists see many political higher activists to use edu- questions purpose an admission that cation for indoctrination. my is to students to social- infra, added). of ism, course convert Appendix, (emphasis not- As K my only earlier, answer that in view—a can ed see at note Oilman is text distinc- view which denies fact/value subsequently in some- identified the column as understanding of Marxism correct colleagues regard “political tion —a his as a one whom truths) any body (as of scientific indeed of activist.” automatically acceptance. I has- to its leads Evans, supra F.Supp. 110. Oilman v. my not in that this is reflected ten add (i.e., practices; grading students non-Marxist yet do Marx- students who not understand Id. ism) least as well the rest of the do at professors, given by bourgeois class Furthermore, [sic] example, opening paragraphs 112. For that I I do not consider intro- article, quotations my Oilman’s from which several “politics” into course than do duce more taken, were read in full: professors, that I am other social science they any interested than are convinc- my more practical What are the results of course my ing inter- correctness of students judge can on Marxism? How one them? pretations. question, Most students who answer Oilman, Building Marxist?”, Teaching Marxism and “Why you you On or aren’t (Winter Movement, Science New Political at the end of indicate the course that 1978), accept analysis Supp.App. at (although the now Marx’s truths)

deed of body of scientific leads automatically acceptance.” to its arrayed against Valiants seem Non- McCarthyite students are defined as those Marxist “who know-nothings. Marxism.” yet do not understand But approaches neither side the central place is a where the “classroom” students’ question: beliefs, not in- Oilman’s but his “bourgeois ideology dismantled.” tentions. candid writings His avow his de- revolution, task” prior “Our before he sire to use the classroom as an instrument writes, “is to revolutionaries. make more what he calls preparing “the revolu- occur revolution will when there tion.” Whether this is a form of indoctrina- enough of us to make it.” tion that could transform the real function importance He by stressing concludes of a university and of aca- transcend limits movement” professors.” to “the of “radical demic freedom is concern to academicians post, If for his new Oilman will approved who are McCarthyite neither know- nor major filling have a voice in a new profes- nothing. promised A sorship leading prospect him. To protect freedom, ques- academic Wolfe; he fellow Marxist Alan is notori- tion posed by politicians should be his book Seamy ous for “The Side of De- by professors. But professors throughout mocracy,” whose celebration communist nomination, country by troubled extols China beneficial nature clearly minority, dare not word in say a “brainwashing.” today’s campus climate. work, principal scholarly Oilman’s “Alien- While Oilman described news Marx’s Conception ation: Man in Capi- “respected scholar,” accounts as a Marxist Society,” talist is a ponderous tome in ado- he is widely profession viewed as a (Marxism ration of the master “is like a political activist. Amid increasingly magnificently rich tapestry”). Published in popular Marxist movement in university 1971, does hope it not abandon for the revo- life, he is distinct from philosophical Marx- forecast Karl lution Marx 1848. “The ists. Rather, he is outspoken proponent rebellion,” present youth writes, of “political Marxism.” the workers “helping change of tomor- will, factors, He twice row” sought along election to other make council “a possible socialist revolution.” American Political Science Association candidate of “Caucus for a New pamphleteering Such hooted at one Political Science” and finished out of 16 last *16 political scientist in a major eastern univer- candidates time. each Whether not sity, whose scholarship and represents a professional judgment by his liberal are well known. “Oilman has no colleagues, as some critics contend, the ver- status within profession, but pure is a dict clearly rejected his campaign pledge: simple activist,” and he said. Would he say “If elected ... I shall use every means that publicly? “No chance of it. Our aca- my disposal to promote the study Marx- demic culture permit does not the raising of ism and approaches Marxist politics to such questions.” throughout profession.” these: include questions” would “Such Oilman’s intentions explicit become in of Oilman’s the true measurement isWhat “On Teaching Marxism Building and to use Does he intend scholarship? Movement,” his article in the Winter 1978 in- Will he indoctrination? classroom issue of New Political Science. Most stu- profes- Marxist by followed other deed be dents, he claims, conclude his with a course in time be department Could the sors? “Marxist outlook.” Oilman concedes that the tend- non-Marxists, following to closed will be seen “as an admission the pur- universities? English several ency at pose of my course is to convert to students socialism.” questions” Even if “such cannot be raised

That bothers him not at all because “a faculty, they certainly should not be correct understanding (as by politicians. Marxism in- raised While dissatisfaction

meaning of allegedly defamatory state- its ment words to be construed their in professors many liberal pragmatism in context not isolation.1 In opin- my comprehensive in the has renewed interest ion the content of the nationally syndicated toler- Marxists, there is little dogma of the article judged in this should be in its dog- the value of that confronting ance for disjointed entirety and not in that, fragments. makings of a crisis are the ma. Here Furthermore, give I would more considera- and true academic protect integrity to its tion to circumstances under which the freedom, resolve. itself must academia published.2 remand, statement was On in WALD, concurring Judge, Circuit keep district court should these fundamen- judgment. tal determining in mind principles believe the remand because I I concur in “whether the absolute opinion Judge out in Chief singled the statements has culpable been forfeited by omissions or “hybrid” properly opinion as Robinson’s supporting errors facts which the statements, opinion not classified as factual article offered read- its [Evans Novak] as libelous. challenge subject and thus Robinson, C.J., ers.” Opinion of fact-opinion clas- of a hybrid While creation If, I suspect as and as is customary, I believe intriguing, balance sification appeared article on the opinion-editorial each case judgments in making hard page, generally known in the as the trade will opinion or fact whether op-ed page, circumstance be easier the law of libel long run make very relevant to district court’s determi- comply Specifical- with. to understand Newspaper nation. are likely readers have to that courts not ly, I am concerned assume that appearing op-ed articles on the has the author backed decide whether page, especially nationally syndicated edito- and accurate statement with “full hybrid comments, rial in contrast to news articles facts”; material account traditionally which appear in the elsewhere an exercise of too much like that sounds newspaper, express are intended specific addition, predict judgment. editorial opinions. It is also customary the news- enjoy will statements hybrid that since paper space syndi- limit available for per- if all opinions privileged status to express cated columnists their editorial com- are stated background facts tinent opinions. requires This that their views be requisite stan- accurately pletely presented very condensed form. met, majority care is vast dard of primary opinion focus of such articles is ultimately will be treated such statements they are generally so understood. Under facts anyway. and tested as circumstances, opinions readers of the MacKINNON, Senior con- Judge, Circuit nationally less syndicated columnists are curring judgment: to be misled likely omission of substantially Judge persons differ from Chief facts named in articles analysis Robinson’s do might not oppose necessary. consider I do to give oppor- remand the district court an Judge understand Chief Robinson’s *17 tunity points to consider the raised to foreclose the district court’s considera- opinion. article, my judgment con- assessing tion of such circumstances in whole, sidered as It privileged availability

is well in evaluating established this case.3 Co., Publishing v. New Times (1974); Cianci 639 F.2d S.Ct. L.Ed.2d 745 Cir.1980); (2d Cooperative Publishing Afro-American Ass’n v. Greenbelt Jaffe, (D.C.Cir.1966) Bresler, Co. 6, 13-14, S.Ct. (en banc); (Second) Restatement of Torts (1970); (Second) 26 L.Ed.2d 6 Restatement (1977). d § 563 comment Torts comment e § No. Ass’n of Old Dominion Branch Nat’l C.J., Robinson, Opinion 17 n. Austin, 264, 285-86, Letter Carriers v. 418 U.S.