The U.S. Court of Appeals yesterday upheld the dismissal of 21 libel charges in a lawsuit brought by the Liberty Lobby against a magazine owned by columnist Jack Anderson but said a jury should decide nine other libel allegations.
U.S. District Court Judge Barrington D. Parker had dismissed all 30 allegations before trial. He had ruled that Willis Carto, the Liberty Lobby's leader, had failed to show that the magazine, The Investigator, had published the articles with "actual malice" -- knowledge that the material was false or with reckless disregard for whether it was true. The appeals court disagreed on nine of the counts.
It said the author of the articles, Charles Bermant, relied for some of that information on allegations that had been published in True magazine. Carto later sued True and won a cash settlement from the magazine, according to the opinion.
The court said allegations in The Investigator that Carto emulated Adolf Hitler, sang Hitler's "Horst Wessel Lied" and tried to imitate Hitler's style and charisma in a speech were based solely on the True article.
"There is no other evidence that Carto emulates Hitler in appearance or in action, allegations the jury could find to be defamatory," the opinion said.
The court said Bermant obtained other allegations about Carto from a freelance journalist, Robert Eringer, without checking their accuracy.
"Bermant not only did not inquire how Eringer came to know these details of Carto's operations; he never even looked the unknown Eringer in the eye until after the story was published, but spoke to him only once over the telephone," the court said.
The court said Anderson testified that "he did not care whether Eringer was reliable" because "we did not intend to use his material."
The opinion also said the articles were published despite the view of the magazine's editor, William McGaw, that the stories were "terrible" and "ridiculous."
The opinion rejected an argument by lawyers for Anderson that Carto should be "libel proof" because his reputation has been irreparably damaged by earlier articles about him.
"We are not yet ready to adopt for the law of libel the principle that 10,000 repetitions are as good as the truth," the court said.
The opinion was written by Circuit Court Judge Antonin Scalia and joined in by Circuit Court Judge Harry T. Edwards and District Court Judge Stanley S. Harris.
Anderson could not be reached yesterday for comment, but a lawyer for Anderson said the columnist will seek a rehearing.