This is a U.S. district court opinion and order dismissing most of a Church of Scientology libel suit against Time magazine. Judge Peter Leisure ruled on November 14, 1995, that the suit could proceed on only one of the allegedly libelous statements made in the 1991 cover story, "Scientology: The Cult of Greed and Power." The church is seeking $419 million.

UNITED STATES DISTRICT COURT 
 
SOUTHERN DISTRICT OF NEW YORK 
 
 
CHURCH OF SCIENTOLOGY INTERNATIONAL, 
 
Plaintiff, 
 
-- against -- 
 
TIME WARNER, INC., TIME INC. MAGAZINE COMPANY, 
and RICHARD BEHAR, 
 
Defendants. 
 
 
92 Civ. 3024 (PKL) 
 
OPINION AND ORDER 
 
 
APPEARANCES 
 
MORRISON COHEN SINGER & WEINSTEIN, LLP 
 
750 Lexington Avenue 
 
New York, New 10022 
 
Jonathan W. Lubell, Esq., of counsel 
 
Jonathan M. Plissner, Esq., of counsel 
 
Attorneys for Plaintiff 
 
 
CAHILL GORDON & REINDEL 
 
80 Pine Street 
 
New York, New York 10005 
 
Floyd Abrams, Esq., of counsel 
 
Dean Ringel, Esq., of counsel 
 
Attorneys for Defendants 
 
 
LEISURE, District Judge: 
 
Plaintiff Church of Scientology International ("CSI") brought this 
action to recover for damages allegedly suffered from the 
publication of false and defamatory statements concerning CSI in 
the cover story of the May 6, 1991 issue of Time Magazine. 
Defendants Time Warner, Inc., Time Inc. Magazine Company, and 
Richard Behar (collectively "Time") move this Court for summary 
judgment, pursuant to Federal Rule of Civil Procedure 56, on the 
grounds that they lacked actual malice in publishing the article 
about CSI, an admitted public figure. See Plaintiff's Response to 
Defendants' First Set of Requests for Admission to Plaintiff. For 
the reasons stated below, defendants' motion is granted in part 
and denied in part. 
 
DISCUSSION 
 
"Summary judgment is proper only if, viewing all evidence in the 
light most favorable to the nonmoving party, there is no genuine 
issue of material fact" as to an essential element of a claim. 
Buttry v. General Signal Corp., No. 95-7135, 1999 WL 628556, at 
#3 
(2d Cir. Oct. 26, 1995). A public figure suing for libel must 
prove, as one of the essential elements of the claim, that the 
defendant published the material with actual malice, i.e., actual 
knowledge of its falsity or with serious subjective doubts as to 
its truth. See New York Times Co. v. Sullivan, 376 U.S. 254, 
279-80 (1964); St. Amant v. Thompson, 390 U.S. 727, 731-32 
(1968). 
The First Amendment further requires that the plaintiff prove 
actual malice with clear and convincing evidence. See id. 
Therefore, "there is no genuine issue if the evidence presented in 
the opposing affidavits is of insufficient caliber or quantity to 
allow a rational finder of fact to find actual malice by clear and 
convincing evidence." Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 254 (1986). 
 
Although a defendant's state of mind is at issue in a libel case 
covered by New York Times, that fact alone cannot preclude 
summary 
judgment, for First Amendment protection cannot be emasculated 
by 
unwillingness on the part of a court to grant summary judgment 
where "affidavit evidence of the defendant's state of mind" is 
lacking. A libel suit cannot be allowed to get to the jury, at 
enormous expense to the defendant, based on mere assertions of 
malice by the plaintiff. Cf. St. Gurin v. Virgin Islands Daily 
News, Inc., 21 F.3d 1309, 1318 (3d Cir. 1994) ("Summary 
judgment 
for the publisher is quite often appropriate because of the 
difficult a public office has in showing 'actual malice.'"). 
Indeed, without judicious use of summary judgment to dispose of 
libel suits, "the threat of being put to the defense of a lawsuit 
freedoms as fear of the outcome of the lawsuit itself." Immuno AG. 
v. Moor-Jankowski, 74 N.Y.2d 548, 561, 549 N.E.2d 129, 135, 
549 
N.Y.S.2d 938, 944 (1989) (internal quotation marks omitted); 
vacated, 497 U.S. 1021 (1990), adhered to, 77 N.Y.2d 335, 567 
N.E.2d 1270, 566 N.Y.S.2d 906 (1991), cert. denied, 500 U.S. 954 
(1991). Because the freedoms guaranteed by the First Amendment 
are 
designed to ensure that debate not litigation, is vigorous, the 
subjective nature of the test of liability cannot create a bar to 
summary disposition of libel suits.[FN1] See McLee v. Chrysler 
Corp., 38 F.3d 67, 68 (2d Cir. 1994) (ruling that district court's 
view - that summary judgment was unavailable in discrimination 
cases where employer's intent was at issue - was unsupportable). 
Indeed, this Court finds little to distinguish silence enforced by 
oppressive litigation from "silence coerced by law - the argument 
of force in its worst form." Whitney v. California, 274 U.S. 337, 
375-76 (1927) (Brandeis, J., concurring). 
 
In addition, the Court must "consider this case against the 
background of a profound national commitment to the principle 
that 
debate on public issues should be uninhibited, robust, and 
wide-open, and that it may well include vehement, caustic, and 
sometimes unpleasantly sharp attacks." New York Times Co., 376 
U.S. at 270. As quoted in New York Times, 
 
In the realm of religious faith, and in that of political belief, 
sharp differences arise. In both fields of the tenets of one man 
may seem the rankest error to his neighbor. To persuade others to 
his own point of view, the pleader, as we know, at times, reports 
to exaggeration, to vilification of man who have been, or are, 
prominent in church or state, and even to false statement. But the 
people of this nation have ordained in the light of history, that, 
in spite of the probability of excesses and abuses, these 
liberties are, in the long view, essential to enlightened opinion 
and right conduct on the part of the citizens of a democracy." 
 
Id. at 271 (quoting Cantwell v. Connecticut, 310 U.S. 296, 310 
(1940)). Because sharp disagreement is essential to robust debate 
about important issues, "[a]ctual malice under the New York 
Times 
standard should not be confused with the concept of malice as an 
evil intent or a motive arising from spite or ill will." Masson v. 
New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991). The 
speaker's 
belief in his statements, even his exaggerations, enhances, rather 
than diminishes, the likelihood that they are protected from libel 
attack by the First Amendment. Only where the speaker himself 
lacks this conviction, where the speaker entertains serious doubts 
as to the veracity of his statements, is the false statement 
actionable. See St. Amant, 390 U.S. at 731. 
 
As a threshold matter, then, the Court considers plaintiff's 
assertions that Behar, after publishing an article in Forbes 
critical of the church, 
 
targeted the Church with a fixed view of it as a 'destructive 
cult.' In the next five years, through the publication of his 
article in the May 6, 1991 issue of Times, Behar refined his focus 
- gathering negative information from Scientology adversaries and 
proposing anti-Church articles - while never changing any view 
about the Church, never accepting anything a Scientologist said 
and uniformly ignoring anything positive he learned about the 
Church. 
 
Plaintiff's Memorandum of Law in Opposition to Defendants' 
Motion 
for Summary Judgment at 2. As noted, malice in the sense of 
hatred 
or ill-will is often indicative of lack of the actual malice 
required under New York Times, and therefore would tend to 
undermine, not support, plaintiff's case. In addition, "reckless 
conduct is not measured by whether a reasonably prudent man 
would 
have published, or would have investigated before publishing." St. 
Amant, 390 U.S. at 731. However, the combination of inadequate 
investigation with bias on the part of the publisher can give rise 
to an inference of actual malice. See Harte-Banks 
Communications, 
Inc. v. Connaughton, 491 U.S. 657, 632 (1989). With a showing of 
an extreme departure from standard investigative techniques, bias 
of the reporter becomes relevant to explain this extreme departure 
as more than mere carelessness rather as purposeful avoidance of 
the truth. Plaintiff therefore devotes much of its opposition to 
the motion to attempting to demonstrate Behar's predetermined 
bias 
toward the church. However, plaintiff has failed to demonstrate 
the correlative circumstance or inadequate investigation to make 
its evidence of bias probative of actual malice, rather than 
probative of lack thereof. Without a showing of inadequate 
investigation, bias merely confirms the publisher's firmly-held 
belief in the allegedly defamatory statements, 
 
With these principles in mind, the Court considers each allegedly 
libelous statement individually to determine whether a rational 
finder of fact could find actual malice by clear and convincing 
evidence. See Tayoulareas v. Piro, 817 F.2d 762, 794 (D.C. Cir.) 
(en banc) ("[D]efamation plaintiffs cannot show actual malice in 
the abstract; they must demonstrate actual malice in conjunction 
with a false defamatory statement." (emphasis in original)), cert. 
denied, 484 U.S. 870 (1987). 
 
A. Statements Set Forth at 40 
 
Paragraph 40 of the complaint sets forth several statements 
alleged to be false and defamatory. (The text of the sentences as 
they appear in the article is set forth below, the portions quoted 
in the complaint are underlined.) 
 
1. "In reality the church is hugely profitable global racket that 
survives by intimidating members and critics in a Mafia-like 
manner." 
 
2. "Says Cynthia Kisser, the (Cult Awareness) network's 
Chicago-based executive director: 'Scientology is quite likely the 
most ruthless, the most classically terroristic, the most 
litigious and the most lucrative cult the country has ever seen. 
No cult extracts more money from its members.'" 
 
3. "Those who criticize the church - journalists, doctors, lawyers 
and even judges - often find themselves engulfed in litigation, 
stalked by private eyes, framed for fictional crimes, beaten up or 
threatened with death." 
 
 
Mafia-Like Intimidation 
 
Time relied on many sources as the basis for its belief that "the 
church . . . survives by intimidating members and critics in a 
Mafia-like manner." None of these sources is so obviously 
incredible that a reasonable jury could infer from Time's reliance 
on them knowledge of falsity or subjective doubt as to veracity. 
See St. Amant, 390 U.S. at 732; cf. id. ("Professions of good 
faith will be unlikely to prove persuasive, for example, where a 
story is fabricated by the defendant, is the product of his 
imagination, or is based wholly on an unverified anonymous 
telephone call."). Compare Harte-Hanks, 491 U.S. at 691 ("The 
hesitant, inaudible, and sometimes unresponsive and improbable 
tone of Thompson's answers to various leading questions raise 
obvious doubts about her veracity."). On the contrary, Behar 
relied on affidavits from former high-ranking Scientologists, 
newspaper and periodical articles, interviews and personal 
experience, and published court opinions, often issued after the 
benefit of adversarial presentation of testimony, which supported 
his professed belief that CSI intimidated critics and members. See 
Affidavit of Richard Behar ("Behar Aff.") Paragraphs 28-61. The 
Court finds that based on this evidence, no reasonable jury could 
find that CSI had proven by clear and convincing evidence that 
Time either knew or entertained serious doubts that the statement 
was false. 
 
2. Most Ruthless, Classically Terroristic Cult 
 
This statement appeared in the article in the form of a quotation 
from Cynthia Kisser, executive director of the Cult Awareness 
Network. "Repetition of another's words does not release one of 
responsibility if the reporter knows that the words are false or 
inherently improbable, or there are obvious reasons to doubt the 
veracity of the person quoted or the accuracy of his reports." 
Goldwater v. Ginzburg, 414 F.2d 324, 337 (2d Cir. 1969), cert. 
denied, 396 U.S. 1049 (1970). Based on the material supporting 
Behar's statement regarding Mafia-like intimidation, see Behar 
Aff. Paragraphs 28-61; see also id. Paragraphs 62-67, Behar's 
repetition of Kisser's statement was not done with knowledge that 
the statement was false or inherently improbable. Nor are there 
obvious reasons to doubt Kisser's veracity. There is no doubt that 
her views are deeply opposed to CSI's views, and each likely 
regards the other's conduct as reprehensible if not criminal, see 
Farny Aff. Paragraph 98, but such sharp disagreement and Kisser's 
obvious antagonistic relationship with Scientology does not 
amount 
to an obvious reason to doubt her veracity. On the contrary, as 
executive director of an organization dedicated to studying 
so-called cults, her judgment as to CSI's ruthlessness and 
terroristic practices likely carried credence with Behar. See id. 
Paragraph 62. The Court therefore finds that a reasonable jury 
could not find that plaintiff had demonstrated actual malice on 
the part of Time in publishing this statement by clear and 
convincing evidence. 
 
3. Journalists, Doctors, Lawyers, and Judges Framed, Beaten pp. or 
Threatened with Death 
 
In light of Behar's beliefs regarding his own experiences with 
Scientology, the admitted harassment of Paulette Cooper by 
Scientology's Guardian's office (which has been disbanded), and 
the other sources relied on by Behar, see Behar Aff. Paragraphs 
85-93, the Court finds no evidence that Behar made the statement 
regarding journalists with actual malice. Similarly, there are not 
"obvious reasons to doubt" Behar's sources for his statement 
regarding doctors, lawyers, and judges. See St. Amant. 390 U.S. at 
732. Although Behar does not have convincing evidence to link 
CSI 
with many of the strange incidents befalling these groups of 
people in conflict with Scientology, that fact alone does not 
allow a reasonable jury to conclude that Behar entertained doubts 
as to the veracity of his statement that these incidents are 
linked to CSR. Compare id. at 732 (good faith unlikely where story 
is fabricated by defendant, based on his imagination, or based on 
unverified anonymous telephone call). Therefore, the Court finds 
that no reasonable jury could find by clear and convincing 
evidence that Time published the above statement with actual 
malice. 
 
B. Statements Set Forth at Paragraph 58 
 
CSI challenges the following as false and defamatory: 
 
"THE LOTTICKS LOST THEIR SON, Noah, who jumped from a 
Manhattan 
hotel clutching section 171, virtually the only money he had not 
yet turned over to Scientology. His parents blame the church and 
would like to sue but are frightened by the organization's 
reputation for ruthlessness. 
 
"His death inspired his father Edward, a physician, to start his 
own investigation of the church. 'We thought Scientology was 
something like Dale Carnegie,' Lottick says. 
 
'I now believe it's a school for psychopaths. Their so-called 
therapies are manipulations. They take the best and brightest 
people and destroy them.' 
 
"It was too late. 'From Noah's friends at Dianetics' read the card 
that accompanied a bouquet of flowers at Lottick's funeral. Yet no 
Scientology staff members bothered to show up." 
 
The primary sources relied on by Behar for these statements are 
the parents of Noah Lottick. The Lotticks affirmed the accuracy of 
each statement in the article. See Reply Memorandum of Law in 
Further Support of Defendants' Motion for Summary Judgment 
("Def.'s Reply") at 12. Furthermore, the Lotticks are not 
obviously lacking in credibility, and the statements are not 
inherently improbable. Nevertheless, Behar made a thorough 
investigation of this aspect of his article by discussing it with 
various persons who knew Noah. Although Behar can be criticized 
for not interviewing Fred Lemons, an active Scientologist, 
asserted Scientology staff member, and former roommate of Noah 
Lottick, this omission is not such that it might raise an 
inference of purposeful avoidance of the truth. Cf. Harte-Hanks, 
491 U.S. at 582 ("[W]hile denials coming from Connaughten's 
supporters might be explained as motivated by a desire to assist 
Connaughton, a denial coming from [the uninterviewed] Stephens 
would quickly put an end to the story."). Any information to be 
gleaned from Lemons might be expected to be similar to, though 
less authoritative than, information that might be obtained from 
the director of the Scientology Dianetic Center, whom Behar twice 
attempted to contact. See Behar Aff. Paragraph 106. In short, 
besides minor omissions in investigation, from which no 
inferences 
of purposeful avoidance of the truth could reasonably be drawn, 
(even combined with Behar's alleged bias, see supra) CSI has not 
produced evidence such that a reasonable jury could find by clear 
and convincing evidence that behar published the statements with 
actual malice. On the contrary, as reflected in Behar's notes from 
one of his conversations with the Lotticks, it appears that Noah 
had spent the money to which he had access, that Dr. Lottick had 
concluded that Scientology therapies were manipulations, and that 
no Scientology staff members attended the funeral.[FN2] See 
Affidavit of Jonathan W. Lubell, esq., at Ex. 41. Therefore, the 
Court finds that no reasonable jury could find by clear and 
convincing evidence that Tire published the above statement with 
actual malice. 
 
C. Statements Set Forth at Paragraph 43 
 
Of the statements set forth at paragraph 45 of the complaint, 
pursuant to this Court's ruling of November 23, 1992, only the 
following remains at issue; 
 
"Scientology denies any tie to the Fishman Scam, a claim strongly 
disputed by both Fishman and his longtime psychiatrist, Uwe 
Goertz, a prominent Florida hypnotist. Both man claims that when 
arrested, Fishman was ordered by the church to kill Goertz and 
then do an 'EOC,' or end of cycle, which is church jargon for 
suicide." 
 
Behar relied on Steven Fishman, Owe Goertz, Fishman's 
psychologist, Marc Nurik, Fishman's former counsel, Vicki 
Aznaran, 
a former Scientologist, and Robert Dondero, the assistant United 
States Attorney who prosecuted Fishman for stock fraud. Although 
Fishman in many respects is not highly credible, based on the 
corroboration of aspects of his claim by other sources, this Court 
finds that his claims are not obviously incredible. Ct. St. Amant, 
390 U.S. at 732 (good faith unlikely where unverified reliance on 
obviously incredible source). Specifically, Behar relied on 
Goertz's evaluation of Fishman's claims, Vicki Asnaran's 
corroboration of Fishman and Goertz's claims regarding the length 
of Fishman's involvement with the church, the depth of knowledge 
of Scientology that Fishman demonstrated, and the corroboration 
of 
certain claims by Robert Dondero. The fact that Dondero did not 
believe Fishman's claims does not undermine Behar's belief 
because 
Dondero was at the time prosecuting Fishman, and that prosecution 
would be undermined by accepting Fishman's account of 
Scientology's involvement with Fishman. Cf. Harte-Hanks, 491 
U.S. 
at 682 (denials coming from interested witnesses would not cause 
reporter to question veracity of allegations). Therefore, the 
Court finds that no reasonable jury could find by clear and 
convincing evidence that Time published the above statement with 
actual malice. 
 
D. Statements Set Forth in Paragraph 52 
 
Of the statements set forth at paragraph 52 of the complaint, 
pursuant to this Court's ruling of November 23, 1992, only the 
following remains at issue: 
 
"One source of funds for the Los Angeles-based church is the 
notorious, self-regulated stock exchange in Vancouver, British 
Columbia, often called the Scam capital of the world." 
 
The Court finds that a reasonable jury could find by clear and 
convincing evidence that Time published the above statement with 
actual malice. 
 
CONCLUSION 
 
For the reasons stated above, defendants' motion for summary 
judgment is HEREBY DENIED as to the statement set forth at 
paragraph 52 of the complaint, and HEREBY GRANTED as to all 
other 
statements. 
 
 
SO ORDERED 
 
New York, New York 
 
November 14, 1995 
 
/s/ U.S.D.J. 
 
 
==========FOOTNOTES========== 
 
(1) In this respect, the Court notes that both debate and 
litigation have been vigorous in the case at bar. CSI published an 
80-page rebuttal to the Time article, which it distributed to 
church members, business leaders, and political figures. See 
Memorandum of Law in Support of Defendants' Motion for 
Summary 
Judgment ("Def.'s Memo.") at 3. In addition, CSI published a 
series of full-page advertisements in USA Today challenging the 
article and Time's accuracy and biases in publishing it. See id.; 
Affidavit of Lynn R. Farny ("Farny Aff.") Paragraph 16, Exs. 14, 
15. The discovery in this case has been extensive, even though 
discovery has not yet been directed to the issue of truth or 
falsity. For example, Richard Behar, the author of the article, 
was deposed for 16-1/2 days over a 12 month period. See Def.'s 
Memo. at 4. The submissions to the Court in support of or in 
opposition to this motion consist of thousands of pages of 
memoranda, affidavits, and exhibits. 
 
(2) Although CSI asserts that Fred Lemons is a staff member, there 
is no evidence that Behar knew this fact. In addition, if Behar 
were trying to avoid this fact, he would not have contacted the 
Scientology center.