[sixties-l] Libel Suit: 60s Radical v. Right-Winger; SWP v FBI

From: Sorrento95@aol.com
Date: Wed Jul 05 2000 - 14:02:46 CUT

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    On September 20, 1975, Fielding Haas, recently-
    resigned city attorney of Norman, Oklahoma,
    made libelous accusations against me, in regard
    to my antiwar activities during the Vietnam
    years, in a letter published by the OU student
    newspaper. In response to this I brought a
    libel lawsuit against Haas.

    It was dismissed by his crony, Judge Elvin
    Brown, on grounds that I was a "public figure."
    As a "public figure" my case had to rise to
    a higher standard of evidence than that required
    for other plaintiffs, to sustain a libel accusa-

    Appended is a copy of the Oklahoma Supreme
    Court's decision to reverse this dismissal.
    One of the individuals named in Haas' letter
    was John Neal, whose successful election to the
    City Council I had earlier promoted, by recommending
    to the NCCR steering committee that they endorse

    Neal responded to the Haas accusations by publicly
    revealing that he had been an FBI informant on the
    OU campus during the Vietnam years. He was a rat
    who was betraying his associates to the Thought
    Police. He also had been a member of the Young
    Socialist Alliance, youth affiliate of the Socialist
    Workers Party. This gave him access for surveillance
    activities against the SWP.

    Of course I did not know these things about
    Neal when I asked the NCCR to endorse him.
    I just thought of him as an old comrade from
    the antiwar movement.

    Back to the lawsuit, I found it rather chilling
    that I, as a private citizen criticizing the
    conduct of a public official in a letter to
    the editor, became legally defined as a "public
    figure," and therefore not entitled to full
    protection against retaliation by false and
    defamatory publication.

    In direct contradiction to his decision in my
    case, Judge Brown allowed former Norman Police
    Chief Bill Henslee -- not only a public figure
    but a public official -- to bring a lawsuit to
    court against an Oklahoma City TV station, which
    had exposed his lenient treatment of horse ranch
    operators bringing in undocumented workers from
    Mexico to work for slave wages and sleep in the
    barns. Interestingly, Henslee's lawyer was none
    other than Fielding Haas, who enjoyed seeing my
    lawsuit dismissed on "public figure" grounds

    I would like to hear from anyone who was involved
    with or studied the SWP lawsuit against the FBI.
    Neal was subpoenaed to give a deposition for it.

    ~~ Michael
    Michael WRIGHT, Appellant v. Fielding HAAS, Appellee

    No. 49,914

    Supreme Court of Oklahoma

    1978 OK 109; 586 P.2d 1093; 1978 Okla. LEXIS 467

    June 18, 1978

    PRIOR HISTORY: [**1]
    Appeal from the District Court of Cleveland County,
    Oklahoma, Honorable Elvin J. Brown, Trial Judge.
    Action brought for defamation of character based on
    libel contained in a letter addressed to the editor
    of, and published in a newspaper. Trial court granted
    summary judgment to defendant letter writer, determined
    plaintiff to be a public figure, and applied a qualified
    privilege. Plaintiff appeals.


    COUNSEL: Peter Clinton Moore, Norman, Oklahoma,
    for Appellant.

    Robert L. Bailey, Sam Whitlock, Norman, Oklahoma,
    for Appellee

    JUDGES: Lavender, V.C.J., wrote the opinion.


    OPINION: [*1094] Michael Wright (Wright), a Norman,
    Oklahoma, resident, brought a libel suit against
    Fielding Haas (Haas), a former Norman city attorney.
    The alleged defamatory statements were contained in
    a letter n1 written by Haas that was addressed to
    [*1095] the editor of, and published in, The Oklahoma
    Daily, the University of Oklahoma newspaper. The Haas
    letter was in response to a letter n2 written by
    Wright similarly addressed and published in the same
    newspaper a few days before the Haas response. These
    letters were preceded by a background of controversy
    [**2] involving a local issue concerning utility rates
    of the municipally owned utility and swirling around
    the city council, an organization called Norman Citizens
    for Civic Responsibility (NCCR), the city attorney,
    his voluntary resignation, and subsequent rehiring.
    - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

    [NOTE: The decision as recorded uses asterisks in place
    of names of other individuals named by Haas.]

    n1 Text of Haas letter follows:

    "To the editor:

    A letter appeared in the issue of September 16, 1975,
     from Mike Wright, claiming to be a member of the
    Norman Citizens for Civic Responsibility (NCCR). Since
    he apparently desires to continue the attack on behalf
    of himself, his cohorts in the NCCR and the other
    radicals who run that organization, perhaps you will
    accommodate my reply thereto.

    First, let me state that my advice to the city council
    was based upon what I, and others, consider to be sound
    legal grounds The releasing of the tapes to the council,
    thence to the media, thence to the public, would have
    been a serious breach of the city charter. I have never
    permitted vilification from radical or revolutionary
    quarters to deter me in the practice of my profession.
    If I did, I would voluntarily relinquish my license
    to practice law. I would also like to add, in this
    regard, that I do not relish answering people such as
    Wright, but the public should be aware for whom he

    Wright, it is true, is one of the organizers and
    principle leaders of the so-called NCCR. He, along
    with people named * * * * and others created the
    organization using the issue of the increase in
    utility rates in July, 1974. Of course, no organization
    was needed to create that issue; it was, as subsequently
    proven, a universal issue Wright admits in his letter
    that has 'radical' views. He, at least in 1969 and
    1970, had more than radical views; he effectuated
    those views by participating in activities on the
    campus which, but for the protection of highway
    patrol troopers and the national guard, would have
    resulted in the fire-bombing of at least one book
    store and the armory. As background on Wright and
    some of his comrades in the NCCR, your readers and
    the public should consider the following:

    During the late 1960's a rag was published entitled
    'The Jones Family Grandchildren.' Principally, it
    was the mouthpiece of the Students for Democratic
    Society, but its membership also included members of
    something called the 'OU Committee to End the War.'
    Wright was a member of both organizations. The sheet
    published by these radicals openly advocated the
    destruction of the government; advised and counseled
    its readers on how to beat the draft; how to beat
    the 'Pigs' on interrogations should they be arrested
    Its membership included notorious drug pushers and
    users and radical activists who advocated the burning
    of university buildings; who flew the Viet Cong flag;
    interfered with ROTC ceremonies and generally created
    havoc on an innocent facility of the State of Oklahoma
    * * * * now a member of the city council, has his
    name among the membership of this sheet. Obviously,
    their colors haven't changed, for they are still in
    association with one another. Some of your readers
    might recall that people were arrested for selling
    the so-called newspaper.

    As another example of Wright's 'views,' I note that
    he also held meetings, or 'workshops' on such things
    as 'Imperialism' and the university 'ROTC.' And in
    May, 1970, along with some 10 other radicals, voted
    to commence violence and confrontations with the
    police and national guard. The question one might
    ask, is, why create violence? Personally, I look to
    the columns of the Jones Family Grandchildren for
    my answer: the overthrow of the government by any
    means. The sad part of that avocation is that they
    had nothing in mind to replace the old institutions
    of government. They merely wanted to destroy the
    'establishment' for destruction's sake. In this I
    am reminded of the past four months, having personally
    observed their tactics; dissension and distrust in
    the police department of Norman, in the city
    administration, even as to the council. And for
    what reason?

    * * * * was the chairman of the OU Committee to
    End the War. He was high in the planning of the
    radical march on Washington during that time. He
    advocated interferring with judicial procedures on
    campus, ROTC ceremonies and other lawful functions
    of that state institution. He seemed to be proud of
    the fact that he was a member of the Jones Family
    Grandchildren. It could logically follow that he, too,
    advocated what the other radicals advocated, destroying
    the 'establishment.' As an example of * * * * activities,
    the JFG held a dance on the South Base in December,
    1969. Neal called this dance to the attention of a
    meeting of the Committee to End the War and then
    encouraged everyone to talk to the GI's who would be
    present. We might wonder just what the soldiers
     from Fort Sill were to be told or encouraged to do.

    Another 'leader' of the NCCR is * * * *. * * * *
    had been a resident of Norman for only five or six
    weeks prior to the increase in rates last July 30,
    1974. * * * * was a Hall flunkie; appointed to a
    minor political job in the Capitol. He is a paid
    political organizer; he has done political work in
    Texas, Oklahoma, Virginia and Rochester, NY. We
    wonder just what attracted him to Norman. Perhaps,
    the NCCR's ultimate goal of forcing the city to
    purchase the various public utilities in Norman
    has something to do with it.

    * * * * is another leader of the NCCR. * * * *

    can tell us about radical activities involving
    Tinker Field He is one of the 'Tinker 12.'

    And * * * * former wife, * * * *, who as the
    spokesman for the NCCR, demanded a grand jury
    to investigate city administration. Then when
    the city administration requested the council to
    try to get a grand jury called, * * * * and the
    members of the leadership of NCCR were the first
    to run for cover. They didn't want a grand jury,
    no more than they want it public knowledge that
    the transcripts of the police investigation
    conducted by the city manager were turned over
    to both the Cleveland County District Attorney's
    office and the United States District Attorney's
    office for the purpose of determining if a crime
    had been committed by anyone.

    As long as your readers know who the Wrights
    and * * * * are, I don't mind what they have to
    say about me. I did not spend my time advocating
    the burning of the flag, or state buildings, or
    destroying my government. I served it. And with

    honor." Fielding D. Haas, Former City Attorney."

    n2 Text of Wright letter follows:

    "To the editor:

    For the past year the Norman Citizens for Civic
    Responsibility (NCCR) has encouraged the people
    of Norman to exercise their democratic rights.
    Predictably, in recent weeks local anti-progressive
    forces have made a concerted effort to create a
    backlash against NCCR, in order to erode its

    The Oklahoma Daily has been a willing instrument
    in the anti-NCCR campaign. Two weeks ago the paper
    ran an editorial which stated that the NCCR was
    'running the city.' Shortly thereafter, the Daily
    gave heavy coverage to municipal counsel Fielding
    Haas' hysterical claims that NCCR was controlled
    by 'radicals' and the building-burning 'antiwar
    types.' Following Haas' resignation, the Daily
    'congratulated' itself for having brought out a
    councilman's denial that NCCR was 'pulling his

    In all likelihood, the ridiculous statement that
    NCCR was running the city was planted at the
    Daily by an anti-NCCR source, as part of a calculated
    effort to create a backlash.

    For the record, the NCCR is not a shadow government,
    but it has been an effective citizens' lobby. There
    are individuals in the group who have radical opinions
    on a number of contemporary social issues: I include
    myself in this category. There are also moderates,
    liberals and conservatives. NCCR people are united
    on certain local issues, such as support for reasonable
    utility rates and ward representation. We respect one
    another's differences in viewpoint, and no single bloc
    controls the group.

    The recent attempts to intimidate NCCR members and
    supporters with the 'radical' label reminds one of
    the man who made a political career out of redbaiting:
    Richard Nixon. Nixon's famous "Pink Lady" smear
    campaign against Helen Douglas set a trend which
    dominated his style for years. Two decades later, he
    was finally revealed as a crook. There are lessons in

    Nixon's game finally ended when the tapes which he
    fought so hard to conceal were finally heard. Recently,
    Norman residents have seen a similar effort to suppress
    tape-recorded evidence by a man who has also indulged
    in red scare tactics. The parallels do not escape notice.

    Unfortunately, the city council saw fit to rehire
    Fielding Haas after he made his attack on NCCR. One
    would like to believe that they were merely being
    magnanimous. Another ugly hypothesis raises its head;
    could it be that the council sought to satisfy Haas
    in order to prove that they are not 'radical'? If this
    is so, what kind of precedent is set? Will anyone be
    able to bludgeon the council into taking unwise actions
    by merely yelling 'radical'?

    After the Council's appeasing treatment of Haas, his
    aggression continued. Alst week he insulted them after
    his rehiring by publicly stating that the city was run
    by 'dingalings.' How long must this continue? Hopefully,
    the council members will soon restore their tarnished
    esteem, by quickly severing all ties between Fielding
    Haas and the City of Norman. Mike Wright."
    - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

    Here, in seeking to determine the characterization of
    Wright, the defamed party, as eight a public or private
    personality, we follow the understanding of Gertz v.
    Robert Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed.
    2d 789 (1974) as expressed by this court in Martin v.
    Griffin Television, Inc., Okl., 549 P.2d 85 (1976).
    Gertz, supra, allowed the designation of the defamed
    party as a "public figure" to rest on either of two
    alternative [*1096] bases. First, one may become a
    public figure for all purposes and in all contexts.
    This may be achieved through pervasive fame or
    notoriety. Second, and more commonly, an individual
    becomes a public figure for a limited range of issues.
    This is achieved by an individual voluntarily injecting
    himself into a particular public controversy. Both
    Gertz and Martin were determined to be private
    individuals. Neither had voluntarily injected himself
    into a particular public controversy; neither had
    thrust himself into the vortex of a public issue, nor
    had either attempted to engage the public's attention
    to influence the outcome of a public issue.

    We find present case to be a corollary to Martin, supra.
    Wright voluntarily [**5] injected himself into the
    vortex of the public controversy by writing his letter
    addressed to the editor with the intent it be published.
    Wright's letter sought to engage the public's attention
    to influence public issues. He defended the NCCR. He made
    an issue of its composition. He makes himself an issue
    through his own labeling of himself as "an individual
    having radical opinions on a number of contemporary
    social issues." Other issues easily identifiable in
    the Wright letter include, but are not limited to,
    Haas for his opposition to the NCCR, and his rehiring
    by the city council.

    Though the lack of rebuttal opportunities may be
    considered in seeking to distinguish between public
    and private defamation plaintiffs, there are more
    important distinctions. Gertz, supra. Here, both
    Wright and Haas had established a likelihood of
    rebuttal through their letter writing to the editor
    and the publishing of both their letters. Wright
    is a public defamation plaintiff for the limited
    range of issues encompassed within his letter.
    Martin, supra; Gertz, supra.

    With Wright determined to be a public defamation
    plaintiff, the New York Times standard must be
    applied. Martin, [**6] supra, p. 87; Weaver v.
    Pryor Jeffersonian, Okl., 569 P2d 967, 973 (1977).
    That standard requires actual malice to be an
    essential element of libel as applied to a public
    figure. Actual malice is defined as "with knowledge
    that it was false or with reckless disregard of
    whether it was false or not."

    In granting summary judgment to Haas, the trial
    court applied a "qualified privilege." It has been
    suggested that common law imposes strict liability
    for the publishing of a false and defamatory statement
    about another, but also allows a "conditional privilege"
    to protect certain defined interest if that privilege
    was not abused. n3 Libel and slander case law in this
    jurisdiction appears to recognize two bases for a
    "qualified privilege." One base stems from statutory
    law. n4 German-American Ins. Co. [*1097] v.
    Huntley, 62 Okl. 39, 161 P. 815 (1916); Bland v.
    Lawyer-Cuff Co., 72 Okl. 128, 178 P. 885 (1918);
    Reininger v. Prickett, 192 Okl. 486, 137 P.2d 595
    (1943). The other base accepts a "conditional privilege"
    without reference to statute Beshiers v. Allen, 46
    Okla. 331, 148 P. 141 (1915); Johnson v. Inglis,
    190 Okl. 316, 123 P.2d 272 (1942) See also [**7]
    Fawcett Publications, Inc. v. Morris, Okl., 377
    P.2d 42, 52 (1962).
    - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

    n3 Restatement of the Law, Second, Torts 2d, Special
    Note on Conditional Privileges and the Constitutional
    Requirement of Fault, at p. 259, reads in part:
    "At common law strict liability was imposed for the
    publishing of a false and defamatory statement about
    another. The publisher was held liable even though he
    had used all due care to check the accuracy of his
    statement and thus reasonably believed it to be true.
    This has now been changed as a result of Supreme
    Court interpretation of the First Amendment to the
    Constitution. * * * *

    "At common law, a defendant was privileged to make
    a statement about another party even though it was
    defamatory, so long as he was making the statement
    to protect certain defined interests and he did not
    abuse the privilege. These are called conditional
    privileges, * * * *."

    n4 Modern statutory sections of 12 O.S. 1971, 1443
    and 1445 establish a statutory presumption of malice
    on the part of one publishing a defamatory or injurious
    statement. 12 O.S. 1971, 1443 provides:

    "A privileged publication or communication is one made:

    First In any legislative or judicial proceeding or
    any other proceeding authorized by law;

    Second. In the proper discharge of any official duty;

    Third. By a fair and true report of any legislative
    or judicial or other proceeding authorized by law, or
    anything said in the course thereof, and any and all
    expressions of opinion in regard thereto, and criticisms
    thereon, and any and all criticisms upon the official
    acts of any and all public officers, except where the
    matter stated of and concerning the official act done,
    or of the officer, falsely imputes crime to the officer
    so criticised.

    In all cases of publication of matter not privileged
    under this section, malice shall be presumed from the
    publication, unless the fact and the testimony rebut
    the same. No publication which, under this section,
    would be privileged, shall be punishable as libel."
    (Emphasis added.)
    12 O.S. 1971, 1445 provides:

    "An injurious publication is presumed to have been
    malicious if no justificable motive for making it
    is shown." (Emphasis added.)

    Like presumptions were held to be unconstitutional
    by the United States Supreme Court in Gertz v. Welch,
    418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974).
    In Martin v. Griffin Television, Inc., Okl., 549 P.2d 85
    (1976) this court following the dictates of the United
    States Supreme Court in Gertz, supra, held that the
    legislative created presumption of malice under the
    Oklahoma libel and slander statutes to be unconstitutional.
    In doing so, we found portions of 12 O.S. 1971, 1443
    and 1445, supra, to be unconstitutional. Additionally,
    we found portions of 12 O.S. 1971, 1444 to be
    unconstitutional. Section 1444 of Title 12 dealt with
    pleadings and proof and defenses in libel and slander
    actions. The portion of the statute held unconstitutional
    by this court dealt with the plaintiff's burden of proof;
    that portion read:
    "* * * * and the plaintiff to recover shall only be
    held to prove that the matter was published or spoken
    by the defendant concerning the plaintiff."
    - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - -

    With the holding in Martin, supra, of presumed malice under
    Oklahoma libel and slander statutes n5 being unconstitutional,
    there can be no presumption for rebuttal to act upon as a
    statutorially carved out "conditional privilege."
    - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

    n5 Portions of 12 O.S. 1971, 1443, 1444, and all of 1445,
    Martin, supra, p. 90.
    - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

    As already indicated, a "conditional privilege" created at
    common law is lost through abuse. One such identified abuse
    is knowing the defamatory matter to be false, or acting in
    reckless disregard as to its truth or falsity. n6 That is
    the same standard as imposed upon Wright as a "public
    figure." With the required proof of actual malice, then
    the abuse, and resulting loss, of any common law "conditional
    privilege" is also proven.
    - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

    N6 Restatement of the Law, Second, Torts 2d, Subtitle III.
    Abuse of Privilege, 600 reads in part:

    "b. One consequence of the holding ( Gertz, supra) is that
    mere negligence as to falsity, being required for all
    actions of defamation, is no longer treated as sufficient to
    amount to abuse of a conditional privilege. Instead,
    knowledge or reckless disregard as to falsity is necessary
    for this purpose The policy upon which the conditional
    privilege is based then no longer applies, and * * * * the
    publisher is not given the protection that the privilege
    will otherwise afford, if the matter turns out to be
    false. * * * *.

    "Reckless disregard as to truth or falsity exists when
    there is a high degree of awareness of probable falsity
    or serious doubt as to the truth of the statement. The
    standard here is the same whether liability will be imposed
    for a defamatory communication about a public official or
    a public figure * * * *." (Explanation and emphasis added.)
    - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**9]

    We hold there is no longer a "conditional privilege" available,
    either by statute or common law, as a defense to a public
    defamation plaintiff.

    The Haas letter must be viewed as measured by the Times
    standard. The trial court granted summary judgment and
    found no evidence that Haas in fact entertained serius
    doubts as to the truth contained in the Haas letter, or
    that the letter was written by Haas with reckless disregard
    for the truth or falseness of the statements therein

    Weaver, supra, p. 973, discusses the application of Rule
    13 n7 authorizing summary judgment to libel cases requiring
    actual malice, saying:

    "* * * * on motion for summary judgment all inferences
    and conclusions to be drawn from underlying facts contained
    in such materials as affidavits, admissions, depositions,
    pleadings, exhibits [*1098] and the like, must be viewed
    in a light most favorable to party opposing the motion.
    Northrip v. Montgomery Ward & Co., Okl, 529 P.2d 489 (1974).

    "While ordinarily the burden of proving actual malice is
    upon the official who complains of defamation, it was held
    in Tagawa v. Maui Publishing Co., 49 Haw. 675, 427 P.2d 79
    (1967), that on [**10] a motion by defendant for summary
    judgment in a libel action, the defendant has the burden
    of showing there is no issue of actual malice in the case.

    "Motion for summary judgment should be denied if the
    facts concerning any issue raised by the pleadings and
    affidavits thereinafter filed in the case are conflicting,
    or if reasonable men, in exercise of fair and impartial
    judgment, might reach different conclusions from undisputed
    facts concerning any issue as set forth in such instruments.
    Northrip v. Montgomery Ward & Co., supra."

    - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

    n7 Rules-District Courts, 12 Okl.St.Ann.Ch.2-App., Rule 13.
    - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

    The Haas deposition given in present case indicates the
    sources, kinds of knowledge he acquired about Wright and
    his interpretation of that knowledge. Included were
    conversations with various security officials and much
    reliance on contents of an "intelligence log" with
    references to Wright. These, along with other information
    in affidavits, were the principal bases for many of the
    statements made in Haas's [**11] letter. Viewing that
    evidence in the light most favorable to Wright, the
    party opposing the motion for summary judgment, we find
    reasonable men might reach a different conclusion as to
    whether Haas wrote his letter with actual malice, as
    heretofore defined in this opinion. We cannot find that
    there is no substantial controversy as to any material
    facts so as to sustain the summary judgment.

    The trial court is reversed in granting summary judgment
    to Haas and cause is remanded. The trial court was correct
    in, and this cause requires, the application of the "Times
    standard," for Wright is a public defamation plaintiff.

    Reversed and remanded.

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