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Judge Dismisses $10-Million Libel Suit

Magazine article Editor & Publisher

Judge Dismisses $10-Million Libel Suit

Article excerpt

IN DISMISSING A $10-million libel lawsuit against Random House Inc., a federal judge told the plaintiff, essentially, if you can't take the heat, stay out of the kitchen.

In the process, the judge also expanded protection for commercial speech about protected speech -- in this case, an ad for a book.

Judge Royce C. Lamberth, of the U.S. District Court for the District of Columbia, granted summary judgment to Random House after finding that the suit, filed by author Mark Lane, was without merit.

Lane sued the publishing house after it ran an ad twice in the New York Times in 1993, touting publication of Case Closed, a book by Gerald Posner, whose research supports the Warren Commission conclusion that Lee Harvey Oswald alone was responsible for the assassination of President John F. Kennedy.

Featured in the ad were the photographs of six authors, one of whom was Lane, along with excerpts from their work supporting various assassination conspiracy theories and a counterpoint from Posner's book.

Above the photographs was the caption, "Guilty of Misleading the American Public."

In his lawsuit, Lane contended that the ads misappropriated his name and image for gain by the publisher, sullied his reputation and hurt his credibility, and were defamatory because he never has been charged or convicted of committing fraud on the public.

Lane maintained that, as a result of the ad, he saw a decline in demand for his commentary and in backing for his other writing, and he anticipated a reduction in future demand for his lectures and writing.

Random House countered, however, by arguing that the ads were protected opinion; contained privileged, fair commentary; did not misappropriate Lane's image because it was newsworthy and used incidentally; and Lane could not meet the standard for a false light claim.

"Mark Lane might well profit from Jefferson's sage advice," Lamberth wrote, "`I laid it down as a law to myself, to take no notice of the thousand calumnies issued against me, but to trust my character to my own conduct, and the good sense and candor of my fellow citizens.'"

"If, nonetheless, Lane is affronted by such minor provocations as the court addresses today, he may elect to minimize his exposure by opting for a lower public profile," the judge continued. "More likely, having acknowledged that publicity is the lifeblood of his career, Lane will have to overcome his brittleness -- or seek solace elsewhere than from this court."

On Lane's claims of misappropriation, Lamberth found the arguments "without merit."

Case Closed, the judge found, was written to counter arguments from conspiracy theorists, among whom Lane "is one of the protagonists; without Lane and his cohorts, the controversy over the Kennedy assassination may well have been put to rest by the Warren Commission."

Further, Lamberth noted, a misappropriation claim cannot prevail unless the aggrieved person's likeness has no relationship to the publication's subject matter.

"Lane cannot seriously contend that the discussion of him in Case Closed is not newsworthy," Lamberth wrote.

"Nor can Lane credibly maintain that he has `no real relationship' to Posner's book. Lane has devoted much time and effort to establishing himself as a paladin of the conspiracists," he added. "It is too late for him to retreat to the sidelines as a means of shielding himself from criticism."

Lamberth also ruled that even though the newsworthiness privilege does not apply to commercial speech, "it does apply to advertisements for speech products -- even those that propose a commercial transaction. …

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