expressing view that clear and convincing proof standard applies to issue of falsity vel non
How later courts described this case
- expressing view that clear and convincing proof standard applies to issue of falsity vel non
- expressing view that clear and convincing proof standard applies to issue of falsity vet non
- arguing for a clear and convincing standard
- magazine article concerning prominent citizen’s use of detectives and electronic surveillance in connection with a divorce
Written by the judges who cited it.
The opinion
GODBOLD, Circuit Judge
(specially concurring) :
I concur in the result reached by Judge Ainsworth, but I am not able to join in all of what he has said. It seems to me that some caveats are necessary.
I agree that the constitutional guaranty now extends to discussion and communication involving “an issue of public or general concern.” However, the reach of that term was not an issue in *725 Metromedia, which left the delineation thereof to future cases, Rosenbloom v. Metromedia, 403 U.S. 29 at 44-45 , 91 S.Ct. 1811, at 1820 , 29 L.Ed.2d 296, at 312 (1971). The plurality opinion in that case recognized that there are areas of a person’s activities that fall outside the scope of public or general interest. While I accept that the publication in this case was within the Metromedia phraseology, it seems to me important to note that the publisher may not, by mere artful characterization, force into the ambit of the phrase activities otherwise outside of its scope.
Secondly, Judge Ainsworth’s opinion chooses as a standard of review “independent de novo review” without definition of what that illusory term means. The phrase alone does not adequately answer the question of the extent to which, in making an independent examination of the record, we give effect or deference to lower court findings. However, the cases relied upon by Justice Brennan, 403 U.S. at 54 , 91 S.Ct. 1811 , 29 L.Ed.2d at 318 , flesh out the term. They seem to me to compel rejection of any implication that review is to exclude a residual deference to lower court findings. Edwards v. South Carolina, 372 U.S. 229, 235 , 83 S.Ct. 680, 683 , 9 L.Ed. 2d 697, 701-702 (1963), refers to the “duty ... to make an independent examination of the whole record” [citing footnote 5 of Blackburn v. Alabama, 361 U.S. 199, 205 , 80 S.Ct. 274 , 4 L.Ed.2d 242, 247 (1960)], but in the sentences immediately preceding, 372 U.S. at 235 , 83 S.Ct. 680 , 9 L.Ed.2d at 701 , Edwards recognized that the Supreme Court “may accept ... as binding” the decision of the state court that the petitioners’ conduct constituted breach of the peace under state law.
Footnote 5 of Blackburn said this: “It is well established, of course, that although this Court will accord respect to the conclusions of the state courts in cases of this nature, we cannot escape the responsibility of scrutinizing the record ourselves.” The footnote supports the statement in text that the Court has accorded to the trial judge’s decision “all of the deference . . . which is compatible with our duty to determine constitutional questions.” 361 U.S. at 205 , 80 S.Ct. at 279 , 4 L.Ed.2d at 247 . Cited in footnote 5 is Pierre v. Louisiana, 306 U.S. 354 , 59 S.Ct. 536 , 83 L.Ed. 757 (1939), which held that “the conclusions reached by the Supreme Court of Louisiana are entitled to great respect” but that the Court has a duty to make independent inquiry and determination of the disputed facts.
These cases make clear that the newly-employed phrase “de novo” does not mean that the appellate court’s duty to make an independent examination of the record is to be pursued in the manner of a plenary new trial.