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March 17, 1971


Knox, District Judge.

The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 This action is one brought by Angelo C. Spern against Time, Inc., for an alleged libel which appeared in the November 14, 1969, issue of Life Magazine. The article complained of examined the so called instant minister ordination and religious diploma mill rackets. The article is entitled "Praise the Lord and Pass the Diplomas". The only paragraph of the nine-page article offensive to the plaintiff reads as follows:

"The man who takes dubious credit for giving Keck his start is Angelo C. Spern, director of the Calvary Grace Church in Rillton, Pa. 'I ordained him early in 1961', says Spern. 'He called his church Calvary Grace Christian Church and listed himself as pastor and me as International General Superintendent, which I was. But, about a year later, I got his stationery and he calls himself International General Superintendent and lists me as National Superintendent.' Spern still fumes at his power play, saying, 'Why they didn't even hold a meeting.'" *fn1"

 Extensive investigation by author William A. Bruns, who conferred with Life editors Berry Stainback and Stephen M. Gellman, disclosed that the said Herman Keck, Jr., would ordain anyone as a minister for a fee. It is on Keck that the article focused. The substance of plaintiff Spern's complaint is that since the appearance of Mr. Brun's article, which in its facts and its implication and in its editorial comment is allegedly untrue, the Reverend Spern has been chided, ridiculed and made the subject of scorn. *fn2"

 This matter is presently before the Court on Motion of defendant Time, Inc., for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The pleadings, affidavits, depositions and the Editorial Reference File included in the affidavits disclose no genuine issue of fact upon which reasonable minds could differ. Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966). Therefore, the first point of discussion is whether the First Amendment to the United States Constitution bars prosecution of this action. As a safeguard to freedom of speech and the press, the United States Supreme Court has refused to permit a public official to recover damages in a civil action for libel against a newspaper for comments about his conduct of public business absent a showing of such publication's "actual malice, that is, knowledge of falsity or reckless disregard of the truth". New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967) the Court stated:

 The New York Times Standard has been expanded to include publications concerning public figures as well as matters of public interest. Curtis Publishing Co. v. Butts, Associated Press v. Walker, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967); United Medical Laboratories, Inc. v. Columbia Broadcasting System, 404 F.2d 706 (9th Cir. 1968), cert. denied 394 U.S. 921, 89 S. Ct. 1197, 22 L. Ed. 2d 454 (1969). The First Amendment protection is to be applied in libel cases where there is found a legitimate public interest in the subject matter of the publication. Time, Inc. v. McLaney, 406 F.2d 565 (5th Cir. 1969), cert. denied 395 U.S. 922, 89 S. Ct. 1776, 23 L. Ed. 2d 239 (1969); Rosenbloom v. Metromedia, Inc., 415 F.2d 892 (3rd Cir. 1969), cert. granted 397 U.S. 904, 90 S. Ct. 917, 25 L. Ed. 2d 85 (1970). Thus the Court in United Medical Laboratories, Inc. v. Columbia Broadcasting System, 404 F.2d 706 (9th Cir. 1968) stated:

"The crucial question here then is whether First Amendment immunity can properly be regarded as extending to disclosure and discussion of professional practices and conditions in the health area involved, so that those engaged in the particular field who may claim to have been stained by such a publication will be subject, in any seeking of redress, to application of the federal standard for defeasance of the Amendment immunity, instead of to the standards of state libel law for recovery.
"Those cases engaged in some analogy of public figures to public officials. In outer respects, such an analogy might have more closeness than one between public officials and persons engaged in the activities here involved. Thus, such persons could perhaps claim not to have offered themselves to the limelight as have public officials and public figures. But though limelight may be a factor in public interest occurring, it can hardly be held to constitute a condition for the right of public interest to exist."

 The New York Times rule, having as its basis the principle of free discussion regarding issues concerning which the public requires information, surely applies to this case. That religious racketeering is a matter of public interest can scarcely be questioned. Thus the free flow of information on such a matter of public concern is not to be obstructed in the absence of a showing of "actual malice" by plaintiff. The requisite malice has been found only in cases in which the plaintiff proves with "convincing clarity" that the complained of article was published with actual malice or with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, supra. In St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968), the Court explained what the cases mean with respect to the "reckless disregard" element of the "actual malice" rule:

"These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." 390 U.S. at 731, 88 S. Ct. at 1325.

  The plaintiff must bear the burden of coming forth with affirmative evidence of facts indicating the defendant's probable knowledge of the falsity. Thompson v. Evening Star Newspaper Co., 129 U.S. App. D.C. 299, 394 F.2d 774, cert. denied 393 U.S. 884, 89 S. Ct. 194, 21 L. Ed. 2d 160 (1968). Mere attack on the credibility of defendant's witnesses where the testimony is uncontradicted provides no adequate basis for resisting summary judgment. Hurley v. Northwest Publications, Inc., 273 F. Supp. 967 (D. Minn. 1967) aff'd on opinion below 398 F.2d 346 (8th Cir. 1968).

 Furthermore, in the present case, there are no facts from which actual malice may be inferred. Washington Post Co. v. Keogh, 125 U.S. App. D.C 32, 365 F.2d 965 (1966) cert. denied 385 U.S. 1011, 87 S. Ct. 708, 17 L. Ed. 2d 548 (1967); New York Times Co. v. Connor, 365 F.2d 567 (C.A. 5th 1966); Hurley v. Northwest Publications, Inc., supra; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S. Ct. 197, 19 L. Ed. 2d 248 (1967). The thrust of the religious racketeering article was at the activities of Rev. Keck; certainly the meager ...

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