Bose Corp. v. Consumers Union of United States, Inc.

Justice Rehnquist,

with whom Justice O’Connor joins, dissenting.

There is more than one irony in this “Case of the Wandering Instruments,” which subject matter makes it sound more like a candidate for inclusion in the “Adventures of Sherlock Holmes” than in a casebook on constitutional law. It is ironic in the first place that a constitutional principle which originated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), because of the need for freedom to criticize the conduct of public officials is applied here to a magazine’s false statements about a commercial loudspeaker system.

It is also ironic that, in the interest of protecting the First Amendment, the Court rejects the “clearly erroneous” standard of review mandated by Federal Rule of Civil Procedure 52(a) in favor of a “de novo” standard of review for the “constitutional facts” surrounding the “actual malice” determination. But the facts dispositive of that determination — actual knowledge or subjective reckless disregard for truth — involve no more than findings about the mens rea of an author, findings which appellate courts are simply ill-prepared to make in any context, including the First Amendment context. Unless “actual malice” now means something different from the definition given to the term 20 years ago by this *516 Court in New York Times, I do not think that the constitutional requirement of “actual malice” properly can bring into play any standard of factual review other than the “clearly erroneous” standard.

In this case the District Court concluded by what it found to be clear and convincing evidence that respondent’s engineer Arnold Seligson had written the defamatory statement about Bose’s product with actual knowledge that it was false. It reached that conclusion expressly relying on its determination about the credibility of Seligson’s testimony. 508 F. Supp. 1249, 1276-1277 (1981). On appeal there was no issue as to whether the District Court had properly understood what findings were legally sufficient to establish “actual malice” nor was there any issue as to the necessary quantum of proof nor the proper allocation of the burden of proof of “actual malice.” The issue on appeal thus was only the propriety of the District Court’s factual conclusion that Bose had actually proved “actual malice” in this case. Yet the Court of Appeals never rebutted the District Court’s conclusion that Seligson had actual knowledge that what he printed was false. Instead it concluded after de novo review that Seligsoh’s language was merely “imprecise” and that as such, it would not “support an inference of actual malice.” 692 F. 2d 189, 197 (1982).

It is unclear to me just what that determination by the Court of Appeals has to do with the mens rea conclusion necessary to the finding of “actual malice” and with the District Court’s finding of actual knowledge here. In approving the Court of Appeals’ de novo judgment on the “actual malice” question, for all the factual detail and rehearsal of testimony with which the majority’s opinion is adorned, the Court never quite comes to grips with what factual finding it must focus on. At one point we are told that “[t]he statement in this case represents the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies,” ante, at 513, suggesting that the disparaging *517 statement was perhaps not even false, or at any rate not false enough. One paragraph later, we are told that “as a matter of law . . . the record does not contain clear and convincing evidence that Seligson or his employer prepared the loudspeaker article with knowledge that it contained a false statement, or with reckless disregard of the truth.” Ante, at 513. The Court remarks that the question presented “reaches us on a somewhat peculiar wavelength,” ante, at 514, but that is scarcely a reason for transmitting the answer on an equally peculiar wavelength.

In my view the problem results from the Court’s attempt to treat what is here, and in other contexts always has been, a pure question of fact, as something more than a fact — a so-called “constitutional fact.” The Court correctly points out that independent appellate review of facts underlying constitutional claims has been sanctioned by previous decisions of this Court where “a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts.” Fiske v. Kansas, 274 U. S. 380, 385-386 (1927). But in other contexts we have always felt perfectly at ease leaving state-of-mind determinations, such as the actual knowledge and recklessness determinations involved here, to triers of fact with only deferential appellate review— for example, in criminal cases where the burden of proving those facts is even greater than the “clear and convincing” standard applicable under New York Times. 1

*518 Presumably any doctrine of “independent review” of facts exists, not so that an appellate court may inexorably place its thumb on the scales in favor of the party claiming the constitutional right, but so that perceived shortcomings of the trier of fact by way of bias or some other factor may be compensated for. 2 But to me, the only shortcoming here is an *519 appellate court’s inability to make the determination which the Court mandates today — the de novo determination about the state of mind of a particular author at a particular time. Although there well may be cases where the “actual malice” determination can be made on the basis of objectively reviewable facts in the record, it seems to me that just as often it is made, as here, on the basis of an evaluation of the credibility of the testimony of the author of the defamatory statement. I am at a loss to see how appellate courts can even begin to make such determinations. In any event, surely such determinations are best left to the trial judge.

It is of course true as the Court recognizes that “where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding— inherent in all litigation — will create the danger that the legitimate utterance will be penalized.” Speiser v. Randall, 357 U. S. 513, 526 (1958). But the New York Times rule adequately addresses the need to shield protected speech from the risk of erroneous factfinding by placing the burden of proving “actual malice” on the party seeking to penalize expression. I agree with Justice Harlan who, in commenting on the inappropriateness of de novo fact review of the “actual malice” determination, concluded that he could not

“discern in those First Amendment considerations that led us to restrict the States’ powers to regulate defamation of public officials any additional interest that is not served by the actual-malice rule of New York Times, supra, but is substantially promoted by utilizing [an appellate court] as the ultimate arbiter of factual disputes in those libel cases where no unusual factors, such as allegations of harassment or the existence of a jury verdict resting on erroneous instructions . . . are present.” Time, Inc. v. Pape, 401 U. S. 279, 294 (1971) (dissenting opinion).

I think that the issues of “falsity” and “actual malice” in this case may be close questions, but I am convinced, that the *520 District Court, which heard the principal witness for the respondent testify for almost six days during the trial, fully understood both the applicable law and its role as a finder of fact. Because it is not clear to me that the de novo findings of appellate courts, with only bare records before them, are likely to be any more reliable than the findings reached by trial judges, I cannot join the majority’s sanctioning of factual second-guessing by appellate courts. I believe that the primary result of the Court’s holding today will not be greater protection for First Amendment values, but rather only lessened confidence in the judgments of lower courts and more entirely factbound appeals.

I continue to adhere to the view expressed in Pullman-Standard v. Swint, 456 U. S. 273, 287 (1982), that Rule 52(a) “does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous.” There is no reason to depart from that rule here, and I would therefore reverse and remand this case to the Court of Appeals so that it may apply the “clearly erroneous” standard of review to the factual findings of the District Court.

In attempting to justify independent appellate review of the “actual malice” determination, the majority draws an analogy to other cases which have attempted to define categories of unprotected speech, such as obscenity and child pornography cases, New York v. Ferber, 458 U. S. 747, 774, n. 28 (1982); Miller v. California, 413 U. S. 15 (1973); Roth v. United States, 354 U. S. 476 (1957), and cases involving words inciting anger or violence, Hess v. Indiana, 414 U. S. 105 (1973) (per curiam); Street v. New York, 394 U. S. 576 (1969); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). To my mind, however, those cases more clearly involve the kind of *518 mixed questions of fact and law which call for de novo appellate review than do the New York Times “actual malice” cases, which simply involve questions of pure historical fact.

For example, with respect to the obscenity cases, appellate courts perhaps are just as competent as are triers of fact to make determinations about whether material appeals to “prurient interests,” whether it depicts sexual conduct in a “patently offensive” way, and whether the material lacks serious artistic value, Miller v. California, supra, at 24 . In the words-inciting-violence cases, the necessary determinations, equally capable of de novo appellate review, are whether words are “ ‘likely to provoke the average person to retaliation,’” Street v. New York, supra, at 592 (emphasis added) (quoting Chaplinsky v. New Hampshire, supra, at 574 ), or whether the “rational inference from the import of the language” is that it is “likely to produce imminent disorder.” Hess v. Indiana, supra, at 109 . None of those cases requires the kind of pure historical factual determination that the New York Times cases require: a determination as to the actual subjective state of mind of a particular person at a particular time.

The Court correctly points out that in New York Times Co. v. Sullivan , we conducted independent appellate review of the facts underlying the “actual malice” determination. It is notable, however, that New York Times came to this Court from a state court after a jury trial, and thus presented the strongest case for independent factfinding by this Court. The factfinding process engaged in by a jury rendering a general verdict is much less evident to the naked eye and thus more suspect than the factfinding process engaged in by a trial judge who makes written findings as here. Justifying independent review of facts found by a jury is easier because of the absence of a distinct “yes” or “no” in a general jury verdict as to a particular factual inquiry and because of the extremely narrow latitude allowed appellate courts to review facts found by a jury at common law. Thus it is not surprising to me that early cases espousing the notion of independent appellate review of “constitutional facts,” such as Fiske v. Kansas, 274 U. S. 380 (1927), and New York Times, should have arisen out of the context of jury verdicts and that they then were perhaps only reflexively applied in other quite different contexts without further analysis. See Time, Inc. v. Pape, 401 U. S. 279 (1971) (involving appellate review of a District Court's directed verdict).