Magazine proves lack of ‘actual malice’ by doubting own source

Magazine proves lack of ‘actual malice’ by doubting own source

02/12/96

WASHINGTON, D.C.–Publication of the grounds for doubting a source tends to rebut a claim of actual malice — knowledge of falsity or reckless disregard of the truth — a three-judge panel of the U.S. Court of Appeals in Washington, D.C., stated in late January.

The court held that former National Security Advisor Robert “Bud” McFarlane failed to show that Esquire magazine acted with actual malice when it published an article about the so-called “October Surprise,” upholding the dismissal of McFarlane’s libel claims against the magazine and Craig Unger.

Unger wrote an October 1991 Esquire article effectively alleging that McFarlane had spied for Israel and participated in a conspiracy by the Reagan-Bush presidential campaign to delay the release of American hostages from Iran in 1980.

McFarlane argued that Esquire was aware that its source for the article’s allegations, a self-professed former Israeli spy, had little or no credibility. McFarlane noted that the article quotes two people who call the source a “liar” and a “con man.”

In rejecting McFarlane’s argument, the court stated that “full (or pretty full) publication of the grounds for doubting a source tends to rebut a claim of malice, not to establish one.” The court noted that Esquire’s reliance on Unger’s favorable reputation as a reporter tended to show a lack of actual malice on the magazine’s part.

Furthermore, McFarlane could not attribute Unger’s state-of-mind to Esquire, because Unger was a freelance writer, not an employee of the magazine.

The court upheld the dismissal of McFarlane’s libel claims against Unger, finding it did not have personal jurisdiction over the author, who wrote the article in New York and had very limited contacts with the District of Columbia. (McFarlane v. Esquire Magazine, et al.; Media Counsel: Bruce Sanford, Washington, D.C.)