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Misc. No. 3, September Term, 1996 Vladimir Telnikoff v. Vladimir Matusevitch

[Whether A Particular English Libel Judgment, Under The Circumstances Presented, Is Contrary To The Public Policy Of Maryland So That It Should Be Denied Recognition Under Principles Of Comity]

IN THE COURT OF APPEALS OF MARYLAND Misc. No. 3 September Term, 1996 ______________________________________________

VLADIMIR TELNIKOFF

v.

VLADIMIR MATUSEVITCH

______________________________________________ * Murphy, C.J., Eldridge Rodowsky Chasanow * Karwacki Bell Raker, JJ. ______________________________________________ Opinion by Eldridge, J.

_____________________________________________ Filed: November 12, 1997 * Murphy, C.J., and Karwacki, J., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and the adoption of this opinion.

The issue presented in this certified question case is whether a particular English libel judgment, under the circumstances presented, is contrary to the public policy of Maryland so that it should be denied recognition under principles of comity. I. Vladimir Matusevitch, now a Maryland resident, was born to parents of Belarusan Jewish descent in New York City in 1936. In 1940, Matusevitch moved to Russia where he remained until 1968 when he defected to Norway and received political asylum. Between 1969 and 1992, Matusevitch worked in several countries as a journalist for Radio Free Europe/Radio Liberty (RFE/RL), a publicly-funded American corporation that broadcasts to listeners in Eastern Europe and countries formerly under Soviet control. Matusevitch presently works at RFE/RL's corporate headquarters in the District of Columbia. Vladimir Telnikoff, an English citizen, was born in Leningrad in 1937 and remained there until 1971, when he emigrated to Israel. The following year, Telnikoff began working as a freelance writer and broadcaster for the British Broadcasting Corporation (BBC) in London. In 1983, Telnikoff became employed as a journalist at RFE/RL in Munich, Germany. On February 13, 1984, an article written by Telnikoff was published in the London Daily Telegraph, headed "Selecting the Right Wavelength to Tune in to Russia." The article stated in pertinent part as follows: "But still, after three decades of gradually becoming aware of the significance of Russian language broadcasting, I believe

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[the BBC's] general concept has never been set right. It continues to reflect the fatal confusion of the West, which has yet to clarify to itself whether it is threatened by Russia or by Communism. We fail to understand that Communism is as alien to the religious and national aspirations of the Russian people as those of any other nation. "This confusion further manifests itself in the policy of recruitment for the Russian Service. While other services are staffed almost exclusively from those who share the ethnic origin of the people to whom they broadcast, the Russian Service is recruited almost entirely from Russian-speaking national minorities of the Soviet empire, and has something like 10 per cent of those who associate themselves ethnically, spiritually or religiously with Russian people. However high the standards and integrity of that majority there is no more logic in this than having a Greek service which is 90 per cent recruited from the Greek-speaking Turkish community of Cyprus. "When broadcasting to other East European countries, we recognize them to be enslaved from outside, and better able to withstand alien, Russian, Communism through our assertion of their own national spirit and traditions. However, this approach leaves room for flirting with Euro-communism or 'socialism with a human (non-Russian) face' as a desirable further alternative, and well suits the Left in the West. "Resisting the ideological advance of Communism by encouraging anti-Russian feelings is of less obvious value with a Russian audience. Making 'Russian' synonymous with 'Communist' alienates the sympathetic Russian listeners. It stirs up social resentment in others against the Russians. Making those word synonymous also makes sympathy for Russian into support for the Communist system."

In response, a letter written by Matusevitch, entitled "Qualifications for Broadcasting to Russia," was published in the Daily Telegraph on February 18, 1984. It was as follows

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(emphasis in original): "Sir -- Having read 'Selecting the Right Wavelength to Tune in to Russia' (Feb 13) I was shocked, particularly by the part on alleged inadequacies of the BBC's Russian Service recruitment policies. "Mr. Vladimir Telnikoff says: 'While other services are staffed almost exclusively from those who share the ethnic origin of the people to whom they broadcast, the Russian Service is recruited almost entirely from Russian-speaking national minorities of the Soviet empire.' "Mr. Telnikoff must certainly be aware that the majority of new emigres from Russia are people who grew up, studied and worked in Russia, who have Russian as their mother tongue and have only one culture -- Russian. "People with Jewish blood in their veins were never allowed by the Soviet authorities to feel themselves equal with people of the same language, culture and way of life. Insulted and humiliated by this paranoiac situation, desperate victims of these Soviet racialist (anti-Semitic) policies took the opportunity to emigrate. "Now the BBC's Russian Service, as well as other similar services of other Western stations broadcasting to Russia, who are interested in new staff members (natives), employ those people in accordance with common democratic procedures, interested in their professional qualifications and not in the blood of the applicants. "Mr. Telnikoff demands that in the interest of more effective broadcasts the management of the BBC's Russian Service should switch from professional testing to a blood test. "Mr. Telnikoff is stressing his racialist recipe by claiming that no matter how high the standards and integrity 'of ethnically alien' people Russian staff might be, they should be dismissed. "I am certain the Daily Telegraph would reject any article

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with similar suggestions of lack of racial purity of the writer in any normal section of the British media. "One could expect that the spreading of racialist views would be unacceptable in a British newspaper."1

The Daily Telegraph subsequently published Telnikoff's reply letter, entitled "BBC Employment of Russian Broadcasters," on April 13, 1984: "Sir -- I regret the lateness for unavoidable reasons of my response to the letter of Mr. Vladimir Matusevitch (Feb. 18) which completely misconstrued my article about broadcasting to the Soviet Union. "What I in fact attempt to do is to draw attention to the fatal confusion of the West which has yet to clarify to itself whether it is threatened by Russia or by Communism. "This lack of understanding nurtures the spread of Communism globally and has shown itself in many failures of the West. To illustrate this confusion in broadcasting terms, I refer to the fact that, contrary to the general recruiting policy of the BBC's External Services, the Russian Service employs only 'something like 10 per cent of those who associate themselves ethnically, spiritually or religiously with Russian people.' "The price is to hinder that vital meeting of minds whereby we appeal to Russian people, not their Soviet dummies, and without which it is impossible to oppose Communism ideologically. "From this Mr. Matusevitch concludes that I am `racialist' and claims that I demand `the BBC's Russian Service should switch from professional testing to a blood test.' "To justify the fact that the BBC's Russian Service is almost entirely recruited from Russian speaking national minorities of the Soviet Empire, Mr. Matusevitch says that `the majority of new emigres from Russia are people who grew up, studied and worked in Russia, who have Russian as their mother-tongue and have only one culture -- Russian.' (continued...)

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After Matusevitch refused to apologize for his February 18th letter, Telnikoff filed a libel action against Matusevitch in the High Court of Justice, Queen's Bench Division, in London. Matusevitch was absent for the trial on October 5, 1988, and judgment was entered against him in the amount of 65,000 pounds. Subsequently, the High Court of Justice set aside the judgment upon a motion by Matusevitch and set a new trial for May 22, 1989. At the May 22nd trial, Telnikoff argued that the "natural and ordinary" meaning of the words contained in Matusevitch's letter implied that Telnikoff advocated (1) the use of blood-testing as part of the recruitment policy in the BBC Russian Services, (2) the dismissal of employees of the BBC Russian Service on racial grounds, and (3) racial discrimination

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(...continued) "Here, he himself, unwittingly, highlights the major misconception of the West concerning Russian and Soviet. The people he refers to emigrated from the Soviet Union, grew up, studied and worked in the Soviet Union, and, while retaining their ethnic self, their culture is with rare exception, Soviet -- which by its definition rejects Russian people and their religion. "Under the circumstances, becoming one of Russian culture, although not impossible, is no easy task, particularly for non-Russian emigres, since its very fabric is woven on the loom of the Russian Church. And yes, those who choose to associate themselves with Russian people may have much to contribute. "While in my article I had no wish to specify any particular minority involved, Mr. Matusevitch singled out Jewish emigres and tried to present me as anti-Semitic. "Furthermore, in proclaiming the complete assimilation of this national minority, he is, I believe, well in tune with Soviet policy. "Surely Jewish emigres will not thank him if he, too, denies them their own national identity."

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and anti-semitic behavior. Matusevitch denied that the letter was defamatory and defended on the ground that the letter constituted "fair comment" on a matter of public interest.2 Matusevitch did not, however, assert truth as a defense.3 In reply to Matusevitch's "fair comment" defense, Telnikoff asserted that Matusevitch "had been actuated by express malice."4 At the conclusion of the trial, the High Court of Justice granted Matusevitch's motion for a judgment as a matter of law. Holding that a "reasonable jury" would find that the alleged libel was "comment," the court explained:

"Read in the context of the rest of the letter, I think that [Matusevitch] was doing no more than to make the comments that, if [Telnikoff's] views as stated in his article were given effect to, then the logical outcome would be that the BBC would, when interviewing applicants to join the Russian Service, concentrate on the ethnic origins of the applicant rather than their expertise as broadcasters. I think it is clear that [Matusevitch] was using the suggestion of a blood test in a

Under English law, "fair comment" is an affirmative defense under which a defendant must prove that the alleged libel was "comment," and that the "comment" was objectively "fair" or that it could honestly have been said by an honest person. See the discussion later in this opinion, infra, Part III D. Matusevitch claimed that his letter was "fair comment" upon a matter of public interest because of "the view expressed by the Plaintiff as to the necessary qualifications for broadcasting to Russia and in particular the alleged inadequacies of the recruitment process of the BBC Russian Service." A second affirmative defense under English law is "justification" or "truth." Defamatory words are presumed false, and thus the defendant carries the burden of proving the "truth" of the alleged defamatory words. Because a defendant who pleads but fails to prove truth as a defense may be liable for aggravated damages, Matusevitch chose not to plead truth as a defense. "Express malice," in the sense of ill-will, spite, or an intent to injure, will under English law, defeat a defense of "fair comment." See infra, Part III D.
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metaphorical sense and in no way suggesting that [Telnikoff] in his article had actually demanded that a blood sample should be taken from anyone. . . . Mr. Telnikoff had not demanded in his article that any existing staff should actually be dismissed; but by claiming that 90% of the existing staff were unsuitable for the service, I think it is comment rather than a bare statement of fact to state, as the defendant did in his letter, that Mr. Telnikoff was suggesting that those unsuitable staff should be dismissed."

The High Court went on to rule that Matusevitch's comment was objectively "fair," consisted of "a matter of public interest," and that there was no showing of express malice.5 The Court of Appeal affirmed the High Court's judgment on May 16, 1990.6 Telnikoff appealed to the House of Lords which, on November 14, 1991, affirmed in part,
At the trial, Telnikoff had argued that the comment was malicious because "Matusevitch's dominant motive [in the letter]. . . was to injure [him] and/or to give vent to his personal spite and ill-will towards [him]" and that Matusevitch "published the words complained of with no honest belief as to their truth and/or recklessly, that is to say that he was genuinely indifferent as to their truth or falsity." The court held, however, that "there was no evidence of express malice." On appeal, the Court of Appeal agreed with the trial court that "Matusevitch's figurative and hyperbolic words were at the very least comment, not fact, whether considered in context with Telnikoff's article or by itself." Lord Justice Lloyd for the court stated: "Take the statement `Mr. Telnikoff demands that [the BBC] should switch from professional testing to a blood test.' Contrary to what might appear from the particulars in the statement of claim, [Mr. Telnikoff] concedes that the reference to a blood test is not to be taken literally . . . . Any fair-minded man reading the letter as a whole would regard it as an inference drawn by the author from the . . . letter." The court then held that the letter was "fair" -- that "an honest-minded man might honestly hold the views stated as comments on the facts on which those comments were made," and that there was no malice on Matusevitch's part. Rather, the court concluded that Matusevitch "believed passionately in the evil of anti-semitism. . . . [H]e and [Telnikoff] were total strangers. In those circumstances no reasonable jury could have held that [Matusevitch's] dominant motive was to injure [Telnikoff], rather than express his own honest if misguided views."
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reversed in part and remanded the case. While affirming the rulings below with regard to malice, the House of Lords set aside the holdings below that Matusevitch's letter was "pure comment." Lord Keith of Kinkel for the House of Lords reasoned that, in determining whether the letter was comment or fact, the jury should examine the letter by itself and not in context with Telnikoff's article.7 Accordingly, the House of Lords remanded the case to the High Court of Justice for a jury to decide "whether paragraphs 6 and 7 of [Matusevitch's] letter consisted of pure comment or whether they contained defamatory statements of fact." On remand, the High Court of Justice instructed the jury on this issue at a trial commencing March 10, 1992.8 The jury returned a 240,000 pound verdict in favor of Telnikoff, finding that Matusevitch's letter conveyed:

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Lord Keith of Kinkel wrote for the House of Lords as follows: "In my opinion, the letter must be considered on its own. The readers of the letter must have included a substantial number of persons who had not read the article or who, if they had read it, did not have its terms fully in mind. If to such persons the letter appeared in paras (6) and (7) to contain statements of fact about what the plaintiff had written in his article, which as I have already indicated might well be the case, then in the eyes of those persons the plaintiff would clearly be defamed. The matter cannot turn on the likelihood or otherwise of readers of the letter having read the article. In some cases many readers of a criticism of some subject matter may be familiar with that subject matter but in other cases very few may be, for example, where that subject matter is a speech delivered to a limited audience. The principle must be the same in either case."

After a pre-trial hearing, the High Court rejected Matusevitch's amended plea to assert the affirmative defense of "justification" or "truth," relying on the overall delay and the "hardship and anxiety" which a plea of "justification" could present at this stage. The denial was later affirmed by the Court of Appeal.

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"1. That [Telnikoff] had made statements inciting racial hatred and/or racial discrimination; [and] 2. That [Telnikoff] was a racialist and /or anti-semite and/or a supporter and/or proponent of doctrines of racial superiority or racial purity."

Subsequently, a judgment was entered into Telnikoff's favor for the amount of the jury's verdict. Telnikoff unsuccessfully attempted to have his judgment enforced against Matusevitch in the United States.9 On April 20, 1994, Matusevitch commenced the present action by filing a complaint in the United States District Court for the District of Maryland, seeking a declaratory judgment that the English judgment was "repugnant" to the First and Fourteenth Amendments to the United States Constitution, to Article 40 of the Maryland Declaration of the Rights, and to Maryland common law and Maryland public policy. Telnikoff

counterclaimed, seeking enforcement of his English judgment in Maryland. Upon stipulation by the parties, the case was transferred to the United States District Court for the District of Columbia.

There is some confusion as to the initial procedure by which Telnikoff sought to enforce the judgment in the United States. On December 10, 1993, Telnikoff filed in the Circuit Court for Montgomery County, Maryland, the authenticated English judgment in the amount of $ 370,800 plus interest. The judgment was recorded in the circuit court's docket book. In April 1994, Telnikoff filed in the Superior Court for the District of Columbia a copy of the docket sheet obtained from the Montgomery County Circuit Court. According to Telnikoff, the docket sheet represented a Maryland "judgment" in his favor. Matusevitch, on the other hand, claims that a "judgment" was never entered against him in Maryland because the filing was improper under Maryland law. The record reveals that, on Matusevitch's motion, the District of Columbia Superior Court dismissed Telnikoff's action on November, 1994. On October 17 1995, Telnikoff and Matusevitch filed in the Circuit Court for Montgomery County a stipulation dismissing the "action" in that court.

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On January 27, 1995, the United States District Court for the District of Columbia entered judgment for Matusevitch, holding that the cause of action underlying the English libel judgment was "repugnant to the public policy of the State" within the meaning of Maryland's Uniform Foreign-Money Judgments Recognition Act, Maryland Code (1974, 1995 Repl. Vol.),

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