Possum-Playing Plaintiff

If a TV commentator files suit against his critics for libel and then tries to call off the trial, how do the accused clear their names? Such is the puzzle facing Margot Power, 50, a surgeon's wife, a sometime G.O.P. precinct captain and president of the Grand Traverse (Mich.) League of Women Voters.

Last year Mrs. Power decided that 'local folks were getting overly fond of a 15-minute Sunday show sponsored by the American Conservative Club. Writing in the league's local bulletin, Mrs. Power declared: "The Dan Smoot TV program, literally right out of Dallas, Texas, is a skillful professional job of propaganda against--against the United Nations, against all foreign aid, against the income tax, against civil rights for the Negro. It is based on slanted information, half-truths, innuendoes, and sometimes worse."

In a later bulletin, she apologized to Smoot "if we hurt his feelings," but the commentator was not moved. He slapped a $1,000,000 libel suit against Mrs. Power and three other league members, charging that he had suffered financial loss. He offered no specifics whatever, and he spent the next ten months playing possum with the court. Weary of endless pretrial conferences, Federal Judge Noel P. Fox in Grand Rapids finally ordered Smoot to post a $15,000 bond (he never has) to cover the league's legal fees if it could prove that Smoot's suit was merely for "vexatious purposes." With that, Smoot asked Fox to dismiss the charges.

When Fox refused, Smoot asked for a writ of prohibition from the U.S. Court of Appeals in Cincinnati. Fox argued in reply that the ladies had a free-speech right to clear their names, said he was convinced that Smoot had sued them as part of "a definite plan of harassment and punishment." Without a trial, said Fox, the league would be open to similar suits every time it spoke out. With a trial, the courts could attack a new libel issue--whether public commentators, like public officials, are subject to the rule of no recovery from critics except in cases of "actual malice."

The Court of Appeals ruled against Judge Fox. Since that leaves Smoot, in effect, the victor, the league's lawyers are now honing an appeal to the Supreme Court on the ground that the ladies of Grand Traverse may be in for future trouble if they now fail to fight for the right to speak their minds.

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