Newspaper Seeks Libel Suit Dismissal p. 20

By: DOROTHY GIOBBE AWYERS FOR THE New York Daily News and columnist Mike McAlary have requested that a State Supreme Court judge throw out a $12 million libel lawsuit ? filed by a plaintiff whose name never appeared in print.
The case involves three columns which ran in the Daily News during 1994. In the columns, McAlary accused a 28-year-old rape victim ? "Jane Doe" ? of fabricating the crime. He termed the rape a "hoax" and said the police might consider arresting the woman for filing a false police report.
Labeling Doe a social activist who craved publicity, McAlary said the woman was "kind of vocal about being a lesbian." She lied about the rape, McAlary said, in order to bring attention to police non-responsiveness to violence against lesbians and gay men.
McAlary said his information was based on his sources inside the New York City police department, one of whom has been identified as John Miller, then-deputy police commissioner for public information. McAlary did not speak to the victim or any of her representatives.
Even after reporters for the Daily News and other media confirmed that police had found the presence of semen on the victim's body and on her clothes, McAlary continued to maintain that the victim was lying about the rape. Doe's lawyers say that proves McAlary acted with malice.
During arguments for a dismissal, McAlary's lawyers contended that, as a columnist, McAlary's statements should be considered opinion, and therefore protected by the First Amendment. Also, they said that much of what McAlary said in his columns was true, including that police had doubts about the woman's rape claim.
Additionally, they maintained, because the woman was not identified, she is not entitled to damages.
According to Associated Press libel guidelines, a person does not have to be named in order for a charge of libel to stand up in court. In some cases, if the person can be identified from a description in the newspaper ? physical or otherwise ? a judge may find that the person has, in effect, been named by the publication.
During last week's hearing, Justice Charles E. Ramos did not rule on McAlary's motion to dismiss. Instead, he ordered the columnist to submit to further questioning about his sources by Doe's lawyers.