Plaintiff, Defendant. This libel action arises out of the public controversy. concerning the safety.of fluoridation o:f public water supplies,

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1 UNTED STATES DSTRCT COURT SOUTHERN DSTRCT OF NEW YORK ~ x J6HN YAMOUYANNS, PhD, -aganst- Plantff, CONSUMERS UNON OF UNTED STATES, NC, Defendant x OWEN, Dstrct Judge 78 Cv ~721 MEMORANDUM AND ORDER Ths lbel acton arses out of the publc controversy concernng the safety of fluordaton o:f publc water supples, a measure that has been wdely nsttuted n the belef-atfurthers dental health Plantff, John Yamouyanns, s a promnent opponent of fluordaton, and has conducted and publczed studes purportng to establsh a lnk between fluor~aton and ncreased cancer death rates He cla~ms he was defamed n two artcles appearng n the July and August 1978 edtons of defendant's magazne, Consumer Reports The artcles defend fluordaton a~ a valuable dental health measure, and severely c~tcze as baseless and rresponsble the charges, by plantff and others, that fluordaton can cause dangerous sde effects, such as cancer Both sdes move for summary judgment On thes~ motons, the burden s squarely on plantff, an a dmtt ed publ c fgure,

2 j ' to establsh, by clear and convncng evdence, at least a genune ssue of fact as to whether the artcles were publshed wth "actual malce" wthn the meanng of New York Tmes Co v Sullvan, 376 US 254 (1964)_(l) Rnald v Holt, Rneh~rdt & Wnston, nc, ~2 NY2d 369, , cert dened~ 434 US 969 (1977); Relance nsurance Co v Barron's, 442 FSupp 1341 (SDNY 1977) Whle summary dsmssal of actons at early stages n ltgaton s generally dsfavored, see Heyman v Commerce and ndustry nsurance Co, 524 F2d 1317 (2d Cr 1975), n lbel actons t "may we1 1 be the 'rule' rather than the 'excepton'" Olver v Vllage Voce, nc, 417 FSupp 235, 237 (SDNY 1976), ctng - Gutar v ~e~tnghouse Electrc Corp, 396 FSupp 1042, 1953 (SDNY 1975), aff'd mem, 538 F2d 309 (2d Cr 1976) Ths polcy n favor of affordng summary relef to defendants n lbel actons stems from a recognton of the need to avod the "chllng effect" on free speech and press such suts ~ay have See Meeropol v Nzer, 381 FSupp 29, 32 (SDNY 1974), aff'd 560 F2d 1061, 1966 (2d Cr 1977), cert dened, 434 US 1013 (1978), and cases cted theren t seems partcularly 1 Snce the aueston of "actual malce" s determnatve here, there s no n~ed to consder the numerous other bases for summary judgment offered by defendant -2-

3 approprate to guard aganst any obstacle to the free flow of ~centfc debate where the truth or falsty of specfc assertons may elude us for generatons To publsha statement wth "actual malce" s to publsh "wth knowledge that t was false or wth reckless dsregard of whether t was false or not" New York Tmes v Sullvan, 376 US at 280 t s establshed beyond dspute that actual malce may not be nferred merely from the false or defamatory content of the statement (d at ), nor from a lack of nvestgaton before publshng, St Amant v Thompson, 390 US 727, (1968) Rather, "reckless dsregard of the truth [means] subjectve awareness of probable falsty: 'There must be suffcent evdence to permt the concll!'"son that the defendant n fact entertaned serous doubts as to the truth of hs publcaton'" Gertz v Welch, 418 US 323, 335 n6, quotng St Amant v Thompson, 390 US at 731 (1968) To establsh actual malce, Mr Yamouyanns reles on the followng theory By defendants own admsson, the prmary source of nformaton for the Consumer Reports artcles was the record of 1977 Congressonal subcommttee hearngs on the safety of fluordaton, at whch Mr Yamouyanns testfed (Defendant's Exhbt C) Accordng to Mr Yamouyanns, the subcommttee hearng record establshes conclusvely that hs research and studes showng a cancer-lnk n fluordaton have not been refuted by any reputable authortes Therefore, -3-

4 ;: the statements n the Consumer Reports artcles pontng out serous flaws n Mr Yamouyanns' studes and data could not have been publshed wth any fath n ther veracty Specfcally> Mr Yamouyanns refers to statements n the July artcle that hs studes have ~een refuted by the Natonal Cancer nsttute because they faled to account for the most fundamental factors nvolved n cancer mortalty rates -- age> sex> and race He states that the Congresson2l record shows hs studes dd a~count for these factors n essence> therefore, plantff clams that the patent falsty of the content of the artcles, drectly contradcted n the sources reled on by ther publsher, s evdence of actual nalce allegatons The foregong/are, however, grossly nadequate to rase - even an nference of actual malce, much less the c:ear and convncng judgment proof necessary to survve a moton for summary There s overwhelmng evdence n defendents affdavts, unrebutted by plantff, that the artcles ~ere prepared n a conscentous and professonal manner af~er a thorough revew of reputable sources and standard r-=ference works on medcne and scence No serous queston ~s rased that ether the author or the edtors who revewed E~d approved the artcles for publcaton had the slghtest doub: as to ther truth and accuracy Wthout contradctng any of these facts, pla~:fr reles -11-

5 \ entrely on the clamed falsty of the statements to support hs clam of actual malce n lght of the clear and weghty precedent rejectng such an approach, see New York Tmes v Sullvan, 376 US at , the suggeston s strong that plantff's object n brngng ths acton s to use ths court to dscourage the publcaton of opposng vews j Needless to say, t s n the publc nterest for the debate on the safety of fluordaton to proceed n as free and open a manner as possble, wthout the threat of lbel suts nhbtng the publcaton of conflctng studes and commentary n concluson, snce plantff has adduced no evdence t to show actual malce on the part of defendants n publshng the two artcles n queston, summary judgment s granted-to defendant and s dened as to plantff So Ordered May l-0 > 1979 Unted Dstrct Judge -5-