Phillips v. Washington Magazine, Inc.

LISS, Judge. This appeal involves an action for libel and invasion of privacy in which the appellant, David Atlee Phillips, a retired officer of the Central Intelligence Agency (hereafter “CIA”) sought to recover compensatory and punitive damages from the appellees herein, Washington Magazine, Inc., John A. Limpert, Phillip Merrill and Gaeton Fonzi. Appellant’s claim is based upon allegations contained in an article entitled “Who Killed JFK?”, published in the November, 1980 issue of The Washingtonian magazine, a publication of Washington Magazine, Inc. The article was authored by Gaeton Fonzi. The editor and the publisher of The Washingtonian were John Limpert and Phillip Merrill, respectively.

On May 1,1981, appellant filed a declaration in the Circuit Court for Montgomery County alleging libel by the appellees as a result of their publishing the aforementioned article. Fonzi filed a motion raising preliminary objection, asserting the absence of personal jurisdiction over him. That motion was denied by the trial judge. The other three defendants demurred to the declaration on October 19, 1981.

After the denial of Fonzi’s jurisdictional motion, Fonzi joined with the other defendants in their demurrer. The court twice sustained the demurrers but allowed Phillips to attempt to correct the defects in his declaration through amendment. In a memorandum opinion dated April 4, 1983, the trial judge sustained the demurrer to Phillips’ second amended declaration, without leave to amend, on the grounds of ³⁴ failure to allege actual malice and constitutional protection of opinion. Appellant then noted this appeal, asking us to consider the following issues: 1.

Whether the second amended declaration sufficiently alleged that the appellees made false and defamatory statements, with actual malice, and resulting in damage to the appellant? 2. Whether the constitutional provision for opinion protects defamatory statements? Fonzi filed a cross-appeal, asking us to consider whether the Maryland long-arm statute confers personal jurisdiction over him. The appellees, including Fonzi, raise an additional issue in their brief, i.e., whether the appellant’s case is barred by the statute of limitations.

An article entitled “Who Killed JFK?” was published in the November, 1980 issue of The Washingtonian magazine. The article was featured on the front cover of The Washingtonian with the lead-in language “No More Lies, No More Cover-Ups — This Is the True Story of My Search for WHO KILLED JFK? . . . The Trail Leads to Washington, an Elusive Spymaster Becomes the Key. ...” The November, 1980 issue of The Washingtonian was first distributed and circulated to subscribers on or about October 27, 1980. At that time the appellant was a retired, decorated employee of the CIA residing in Bethesda, Maryland.

The author of the article, Fonzi, had been an investigator for two Committees of the U.S. Congress. His areas of inquiry included investigations of the assassination of President John F. Kennedy. The central scope of the article was Fonzi’s efforts to locate an alleged “spymaster” named Maurice Bishop, who knew and met with Lee Harvey Oswald, and thus may have been involved in a conspiracy to assassinate President Kennedy. The article included a caption to a photograph of Salvador Allende stating that Mr. Allende “. . . was overthrown by a ³⁵ secret force from the CIA headed by David Atlee Phillips.” Appellant’s second amended declaration states that this accusation is false.

The article allegedly suggests that appellant, for a period of some ten years, was a spy operating under the name of Maurice Bishop. Inside the magazine was a composite sketch of Maurice Bishop, the elusive spymaster referred to throughout the article. Adjacent to the composite sketch was a photograph of David A. Phillips. Although appellant concedes that Fonzi, in his article, never stated that David Phillips and Maurice Bishop are the same person, he alleges in his second amended declaration that the organization and layout of the article — placing the composite sketch and photograph of appellant on facing pages — was an identification mechanism to connect plaintiff with defamatory references to Maurice Bishop.

Appellant concedes he is a public figure and recognizes that he must prove that the defamatory falsehood was made with actual malice, i.e., with knowledge that it is false or with reckless disregard of whether it was false or not. He admits that the sole instance of actual malice upon which he relies is his perception that the other appellees in this case knew that Fonzi had fabricated the composite sketch to link Maurice Bishop to the appellant by supplying a description of the appellant to the sketch artist. The founding fathers of this nation, in adopting the First Amendment to the Constitution, made a commitment to robust and open debate protected by the right of freedom of speech. Justice Cardozo described that freedom as “the matrix, the indispensable condition of nearly every other freedom.” Palko v. Connecticut, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937).

The Supreme Court recognized that freedom of speech can be chilled by expensive libel litigation, and as a result, placed a heavy burden on the public figure who seeks to pursue a libel action. See New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). ³⁶ A public figure plaintiff in a libel or invasion of privacy 1 action must plead and prove that the communication at issue was: (1) false; (2) defamatory; (3) made with actual malice; (4) defamatory either on its face or when considered in light of extrinsic facts; and (5) injurious to the plaintiff. Capital-Gazette Newspapers, Inc. v. Stack, 293 Md. 528, 538-40 , 445 A.2d 1038 (1982); Metromedia, Inc. v. Hillman, 285 Md. 161, 171-72 , 400 A.2d 1117 (1979). A plaintiff must establish his case by clear and convincing evidence.

New York Times Co. v. Sullivan, supra. Appellant contends that there were two defamatory charges in the article: the caption concerning the overthrow of Allende, and the purported link between Phillips and Bishop. The issue of defamation was appropriately raised by demurrer. Flaks v. Clarke, 143 Md. 377 , 122 A. 383 (1923); Weeks v. News Publishing Company, 117 Md. 126 , 83 A. 162 (1912).

In determining whether the article was defamatory, the courts must consider the article as a whole to arrive at the true meaning of the specific words and phrases. Baugh v. Moore, 122 Md. 149 , 89 A. 404 (1913); Kilgour v. Evening Star Newspaper Company, 96 Md. 16 , 53 A. 716 (1902). Maryland Rules 301 and 340 set forth the general requirements of form and content of a declaration. Rule 301(b) requires that “[a] pleading shall be brief and concise and contain only such statements of fact as may be necessary to constitute a cause of action or ground of defense, except as may otherwise be necessary for purposes of demurrers and motions.... ” Rule 345 a 2 sets forth the principles governing a demurrer and states “[a]ny question as to the sufficiency of substance of any pleading may be raised by demurrer.” ³⁷ In ruling on a demurrer, the court is required to accept as true all well-pleaded facts and any reasonable inferences which may be drawn therefrom.

Schwartz v. Merchants Mortgage Co., 272 Md. 305 , 322 A.2d 544 (1974); Hooke v. Equitable Credit Corp., 42 Md.App. 610 , 402 A.2d 110 (1979). The caption about which Phillips complains states that he was the “chief” of a CIA “task force” set up “to work with Chilean military brass who opposed Allende.” Phillips does not aver that the article states or even suggests that the. task force acted illegally, that it conducted renegade activity against CIA orders, or even that its activities were illegal under Chilean law. Phillips admits in his second amended declaration that he was an employee of the CIA between 1950 and 1975, that he at various times in his career had been awarded special recognition for distinguished and meritorious service. When the article is read in its entirety the statement that