Robert Novak, who died today at 78, became the focus of a debate about First Amendment rights after he used his syndicated column to spotlight CIA operative Valerie Plame in 2003.
But Novak will also be remembered as a defendant in a major libel case that arose from a column 25 years earlier.
In May 1978, he and co-columnist Rowland Evans published an op-ed in The Washington Post and other newspapers about New York University political scientist Bertell Ollman. Ollman had been chosen to head the politics department at the University of Maryland — something Evans and Novak opposed because, according to accounts at the time, Ollman was a Marxist.
The column — “The Marxist Professor’s Intentions” — accused Ollman of using the classroom to convert students to Marxism. And it went further, questioning Ollman’s scholarship.
Ollman lost the chairmanship in Maryland and sued the columnists. Evans and Novak moved for summary judgment, which the U.S. District Court in the District of Columbia granted, finding that Evans and Novak were simply stating their own opinions.
Ollman appealed to the U.S. Court of Appeals for the D.C. Circuit, and a three-judge panel reversed, saying the line between facts and opinion isn’t so clear. The columnists had quoted anonymously another academic who told them that Ollman “has no status within the profession, but is a pure and simple activist.” The panel took the quote as an assertion of fact.
In late 1983, the D.C. Circuit agreed to hear the case en banc. And in a narrow win for the press, the full court split 6-5 in favor of the columnists. Writing for the majority, then-Judge Kenneth Starr cited the context surrounding the anonymous quote and the awareness of the “reasonable reader” that he is not getting “hard” news from Evans and Novak.
“What is more,” Starr wrote, “we cannot forget that the public has an interest in receiving information on issues of public importance even if the trustworthiness of the information is not absolutely certain. The First Amendment is served not only by articles and columns that purport to be definitive but by those articles that, more modestly, raise questions and prompt investigation or debate.”
Then-Judge Robert Bork wrote a concurrence, which three other judges joined and which briefly made Bork a favorite of the press, according to a 1985 column in Legal Times.
And among the dissenters was then-Judge Antonin Scalia, who wrote that Evans and Novak had authored “what seems to me a classic and cooly crafted libel.”
Postscript: The Supreme Court denied a petition for certiorari, prompting a dissent from then-Justice William Rehnquist.