Amicus Brief — Los Angeles Times v. Hartley

IN THE

Supreme Court of the United States

OcroBEerR TERM, 1976

No. 76-71

Los ANGELES TIMES, a division of THE Trwes Mirror

Company, Pau Conrab, THE Times Mrrror Com-

PANY, a corporation, Oris CHANDLER, ANTHONY

Day, Petitioners

v.

Frep L. Hartiey, Respondent

MOTION OF AMERICAN NEWSPAPER PUBLISHERS

ASSOCIATION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE

ArTuur B. Hanson

MITOHELL W. DALE

Hanson, O’BrIEN, BIRNEY

AND BUTLER

888 Seventeenth Street, N.W.

Washington, D. C. 20006

Attorneys for Amicus Curiae

American Newspaper

Publishers Association

Pases or Brnow S. Apams Paterina, Inc., Wasntncron, D. C.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-71

Los ANGELES TIMES, a division of THE Times Mrrror

ComMPpaANy, Pau Conrab, THE TIMES Mrrror Com-

PANY, a corporation, Otis CHANDLER, ANTHONY

Day, Petitioners

Vv.

Frep L. Hartiey, Respondent

MOTION OF AMERICAN NEWSPAPER PUBLISHERS

ASSOCIATION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The American Newspaper Publishers Association

(hereinafter ‘‘ANPA’’) respectfully moves this Court

for leave to file the accompanying Brief Amicus Curiae

in support of the Petition for Writ of Certiorari filed

herein. The Petitioners have consented to ANPA’s

filing of a brief amicus curiae; the Respondent has de-

clined to do so,

The opinion of the California Court of Appeal for

the Second Appellate District, with review thereof de-

nied by the Supreme Court of California, places itself

squarely athwart the proper administration of justice

2

in the field of libel law by reducing the exercise of ap-

propriate summary judgment proceedings to a useless

charade. Your amicus fully recognizes the importance

of a litigant’s day in court in order to prove his or her

case. Just as importantly, the litigant defending a

case is entitled to use the appropriate court procedures

as set forth in the federal rules and in the state court

rules of procedure to dispose of meritless litigation in

summary fashion rather than be harrassed into large

money settlements in order to avoid the cost of expen-

sive trials, or even worse, in the field of the First

Amendment, be forced into a status of timidity in ap-

proaching its service to the people of this county of

providing uninhibited reporting. Obviously, Amer-

ican Newspaper Publishers Association has a deep and

abiding interest in seeing that the people of the United

States are afforded full and complete reporting and

editorial comment as depicted in the cartoon in ques-

tion here, without fear that someone aggrieved by

same can bring a lawsuit which must be tried rather

than summarily dismissed when clear-cut constitu-

tional principles cry for its dismissal.

The American Newspaper Publishers Association is

a non-profit membership corporation organized and

existing under the laws of the Commonwealth of Vir-

ginia. Its membership consists of more than 1,140

newspapers representing over ninety percent of the

total daily and Sunday newspaper circulation in the

United States. A recent bylaw change has allowed an

increasing number of non-daily newspapers to join

ANPA. The Los Angeles Times, one of the Petition-

ers involved in this proceeding, and sixty other daily

newspapers throughout the state of California hold

membership in ANPA.

3

Concerned with matters of general significance to

the profession of journalism and the newspaper pub-

lishing business, ANPA seeks to keep its members

abreast of matters touching on ‘hese concerns. In that

regard, the Association’s member newspapers, indi-

vidually and through ANPA, are ever vigilant to pro-

tect the publie’s right, under the First Amendment,

to information concerning matters of public interest.

ANPA and its members are vitally interested in pro-

tecting the public’s right to receive, and the right of

the press to publish, robust editorial comment and

criticism regarding matters of public interest. ANPA

therefore is concerned lest the full breadth of the con-

stitutional guarantees of freedom of speech and of the

press in the context of libel law not be applied to polit-

ical cartooning, which historically has been an im-

portant means of expressing protected social comment

and criticism.

Ever since its 1964 decision in the case of New York

Times Co. v. Sullivan, 376 U.S. 254, the Supreme Court

has been caught in what at least one Justice has called

a ‘‘quagmire in the field of libel,’’ Curtis Publishing

Co. v. Butts, 388 U.S. 130, 171 (1967) (Black, J., dis-

senting opinion), seeking to define ‘‘the proper accom-

modation between the law of defamation and the free-

doms of speech and press,’’ Gertz v. Welch, 418 U.S.

323, 325 (1974). This effort began with the adoption

of the ‘‘actual malice’’ test, whereby it was held that

a public official plaintiff, in order to prevail in a libel

action, must show with convincing clarity that the de-

fendant has published a defamatory statement ‘‘with

knowledge that it was false or with reckless disregard

of whether it was false or not,’’ 376 U.S. 279-280. In

1967 the Supreme Court extended this constitutional

4

privilege to allegedly defamatory publications relating

to ‘‘publie figures,” that is, persons who purposely

thrust themselves ‘“‘into the vortex of an important

public controversy.”? Curtis Publishing Company VY.

Butts and Associated Press v. Walker, 388 U.S. 180,

154 (opinion of JJ. Harlan, Clark, Stewart and

Fortas).

In addition to its application of the New York Times

standard of fault to both defamation of public officials

and defamation of publie figures, in order ‘‘to give

effect to the [First] Amendment’s function to encour-

oge ventilation of public issues,’’ Rosenbloom vy, Metro-

media, 430 U.S. 20, 46 (1971), the Supreme Court has

emphasized that before a defendant may be held liable

for deliberately, or with reckless disregard, defaming

a publie figure the published statement must be found

to contain false statements of fact, and not mere opin-

ion or ideas expressed through rbetoriecal hyperbole or

figurative epithet. See, Old Dominion Branch No. 496

v. Austin, 418 U.S. 264 (1974) ; Greenbelt Cooperative

Publisher’s Association Vv. Bresler, 398 U.S. 6 (1970).

In the case sought to be presented to this Court by Peti-

tioners, the Court of Appeal of the State of California

for the Second Appellate District misapplied the rele-

vant state and federal law in overturning the trial

court’s grant of Petitions’ Motion for Summary

Judgment, and thereby of ‘ted the **proper aceomo-

dation”’ between the law of defamation and freedom of

the press under the U. S, Constitution.

In the decision herein the Court of Appeal, applying

a standard of ‘possible [defamatory] implication,”

found the political cartoon in question, which expressed

a eritical eomment and opinion on publie issues and

public figures, to give rise to a defamatory implication

D

which, in fact, is directly contrary to the factual impu-

tation contained in the written caption of said cartoon.

In addition, the Court of Appeal completely ignored

the insufficiency of Respondent’s evidence to show ac-

tual malice on Petitioners’ part, and reversed the grant

of summary judgment merely because Petitioners

failed to demonstrate a factual basis for what the court

deemed 2 ‘possible [defamatory] implication.’’ This

of course is erroneous and contrary to the requirements

under New York Times since even assuming, arguendo,

that the cartoon both conveys a factual inaccuracy and

injures Respondent’s reputation, Respondent still is re-

quired to show by ‘“‘clear and convincing proof that the

defamatory falsehood was made with knowledge of its

falsity or with reckless disregard for truth.’ Gertz v.

Welch, 418 U.S. 323, 342 (1974).

Finally, the decision of the Court of Appeal to re-

verse the grant of summary judgment in this proceed-

ing adds to the confusion and conflict among the various

states and lower federal courts as to the role of sum-

mary judgment in expediting the disposition of libel

actions on their merits. Various jurisdictions, mindful

that even the threat of costly litigation and defense

against sham libel claims may be chilling to the exer-

cise of First Amendment freedoms, approve the grant

of summary judgment in libel actions. See, Guam

Federation of Teachers, Local 1581, A. F. T. v. Ysrael,

492 F.2d 438, 441 (9th Cir. 1974) ; Treutler v. Meredith

Corp., 455 F.2d 255, 257 (8th Cir.. 1972, per Hunter,

J.); Time, Ine. v. Johnston, 448 F.2d 378 (4th Cir.,

1971) ; Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858

(5th Cir., 1970) ; Wasserman v. Time, Inc., 424 F.2d 920

(D. C. Cir., 1970) [eoneurring opinion]; Buchanon v.

Associated Press, 398 F. Supp. 1196 (D.C.D.C. 1975) ;

6

Guitar v. Westinghouse Electric Corp., 396 F. Supp.

1042, 1053 (S.D.N.Y. 1975); Meeropol v. Nizer, 381

F. Supp. 29 (8.D.N.Y. 1974) ; Cardillo v. Doubleday &

Co., 366 F. Supp. 92 (S.D.N.Y. 1973); LaBruzzo v.

Associated Press, 353 F. Supp. 979 (D.C. Mo. 1973) ;

Konigsberg v. Time, Inc., 312 F. Supp. 848 (S.D.N.Y.

1970) ; Cerrito v. Time, Inc., 302 F. Supp. 1071 (N.D.

Col. 1969) ; Belli v. Curtis Pub. Co., 25 Cal. App. 3d

834 (1972).

In contrast, a substantial number of jurisdictions

express'y disfavor summary judgment where the issue

of malice—which calls a defendant’s state of mind into

question—is raised. See, Ragano v. Time, Inc., 302

F. Supp. 1005, 1010 (D.C. Fla. 1969) (per Krentzman,

J.), affirmed 427 F.2d 219 (5th Cir. 1970); Goldwater

v. Ginzburg, 261 F. Supp. 784, affirmed following deci-

sion on the merits, 414 F.2d 324 (2nd Cir. 1969), cert.

den. 396 U.S. 1049; Fignole v. Curtis Pub. Co., 247 F.

Supp. 595 (S.D.N.Y. 1965) ; ef. Poller v. C.B.S., Ine.,

368 U.S. 464 (1962). The disagreement among the

various state and federal courts over whether the news

media, as defendauts in literally thousands of libel ae-

tions, may appropriately seek and obtain disposition of

these actions by means of summary judgment on the

issue of actual malice, cries for the input and guidance

of this Court.

Therefore a decision from this Court, delineating

more fully the burdens of proof to which, in a libel

action, the respective parties in a motion for summary

judgment are to be held, and clarifying for emphasis

the distinction between the dual requirements under

N. Y. Times—i.e., a showing of (1) both falsity and

injury to reputation, and (2) clear and convincing

proof of actual malice—can eliminate the chill on the

ee —

ee eee ee er

i

exercise of First Amendment freedoms caused by the

practical requirement in libel actions in many jurisdic-

tions that the press either offer settlement or be called

to defend at trial, due to the relative unavailabiilty of

summary judgment.

Because of the importance of the issues sought to be

presented to this Court by the Petition for Writ of

Certiorari, ANPA desires to present to the Court, for

its assistance, its view on the important matters in this

proceeding.

Wuererore, American Newspaper Publishers Asso-

ciation respectfully requests this Court to grant this

motion and permit them to file the Brief Amicus Curiae

attached hereto and submitted herewith.

Respectfully submitted,

ARTHUR B. HANSON

MITCHELL W. DALE

Hanson, O’Brien, Birney

AND BUTLER

888 Seventeenth Street, N.W.

Washington, D. C. 20006

Attorneys for Amicus Curiae

American Newspaper

Publishers Association

74h Ya gedeen

; INDEX

Page

PrRe.ImMInNany STATEMENT .........cccccccccccccccses 1

INTEREST OF THE AMICUS CURIAE ............cceceees 2

pO EE FFE ES, RE FORE Re RP nT ee 3

The Standard Employed by the California Court of

Appeal To Determine That Petitioners’ Cartoon

Was Defamatory in Nature Offends Both the Rele-

vant Law of the State of California and the Con-

stitutional Standards Enunciated in Greenbelt

Coop. Pub. Assn. v. Bresler and Old Dominion

Branch No. 456 v. Amstim ....cccccccccccntbecs 4

The Court of Appeal Committed Error of Constitu-

tional Dimension by Reversing the Trial Court’s

Grant of Summary Judgment Without Making

Any Determination of ‘‘Actual Malice’’ on the

ee ee EE ‘sc ocdsvevecudceseuneetesennes 10

The Lower Court’s Disapproval of Summary Judg-

ment in This Action Undermines a Very Neces-

sary Means of Aveiding Unnecessary Libel Trials

Which Put a Chill on the Exercise of First Amend-

CE bss codbdenn 66Geedve beneeseedsneses 13

EE NSE E RSE PML My doy epg SNE a Pepa Pe OEE 15

TABLE OF CITATIONS

CASES:

Associated Press v. Walker, 388 U.S. 130 (1967) .... 4

Beckley Newspapers v. Hanks, 389 U.S. 8 (1967) .... 12

Buckley v. Littel, 394 F.Supp. 918 (1975) ........... 9

Cepeda v. Cowles Magazines, 392 F.2d 417 (1968) ... 5

Cervantes v. Time, Inc., 464 F.2d 986 (1972) ........ 11

Correia v. Santos, 191 Cal. App. 2d 844 (1961) ...... 9

Curtis Publishing Co. v. Putts, 388 U.S. 130 (1967) .. 4

il Table of Citations Continued

Page

Dombrowski v. Pfister, 380 U.S. 479 (1965) ......... 14

Field Research Corp. v. Patrick, 30 Cal. App. 3d 603

| SESS ge IER Pe AA None ck DI 11

Fignole v. Curtis Pub. Co., 247 F.Supp. 595 (1965) ... 15

Fram v. Yellow Cab Company, 380 F.Supp. 1313 (1975) 9

Garrison v. Louisiana, 379 U.S. 64 (1964) ........... 12

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). ..4, 7, 8,9

Greenbelt Coop. Pub. Ass’n v. Bresler, 398 U.S. 6 (1970)

4,7, 9,10

ITenry v. Collins, 380 U.S. 356 (1965) ....... cuneeden 12

MacLeod v. Tribune Pub. Co., 152 Cal. 2d 536 (1959). .4, 10

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) .......... 14

N. Y. Times y. Sullivan, 376 U.S. 254 (1964) ...... passim

Old Dominion Branch No. 496 v. Austin, 418 U.S. 264

PED: Mvnend bh6-enceusendaeseuewaeedeecssunes 7,8,9

Poller v. C.B.S., Inc., 368 U.S. 464 (1962) ........... 15

Ragano v. Time, Inc., 302 F.Supp. 1005 (1969), affirmed

ae ee ee EE 0040 k0 000 54 she eekeessues 14, 15

Scott v. McDonnell Douglas Corp., 37 Cal. App. 3d 277

SEPGEE. Kibet bvnwnd clea cedkscekinwiiatueoree 10

Sellers v. Time, Inc., 423 F.2d 887 (1970) ........... 9, 10

St. Amant v. Thompson, 390 U.S. 727 (1968) ........ 12

Washington Post Co. v. Keogh, 365 F.2d 965 (1966) .. 15

Yorty vy. Chandler, 13 Cal. App. 3d 469 (1970) ...6, 7,9, 10

Gruner AUTHORITIES:

A. Hanson, 1 Linen anp Retatrep Torts (1969) ...... 14

Murnaghan, ‘‘From Figment to Fiction to Philosophy

—The Requirement of Proof of Damages in Libel

Actions”, 22 Catholic University Law Review 1

citeduwscbudesickatseeakcesecoenetennes 14

TU A UR bk cdxvddévccascdadeiieawual 5, 12

Restatement (First) of Torts (1939) ............... 10

United States Constitution, First Amendment .... passim

Wright & Miller, Federal Practice and Procedure (1973) 15

46 Oda eid

IN THE

Supreme Court of the United States

OcToBER TERM, 1976

No. 76-71

Los ANGELES TIMEs, a division of THe Times Mirror

Company, Paut Conrap, THE Times Mirror Com-

PANY, a corporation, Otis CHANDLER, ANTHONY

Day, Petitioners

v.

Frep L. Hartiey, Respondent

BRIEF OF AMICUS CURIAE

AMERICAN NEWSPAPER PUBLISHERS

ASSOCIATION

PRELIMINARY STATEMENT

The American Newspaper Publishers Association

(hereinafter ‘‘ANPA’’) submits this brief amicus

curiae in support of Defendants Paul Conrad, The

Times Mirror Company, Los Angeles Times, Otis

Chandler, Anthony Day, in their Petition for Writ of

Certiorari.

2

INTEREST OF THE AMICUS CURIAE

The Los Angeles Times and sixty other daily news-

papers published throughout the state of California

hold membership in ANPA. Concerned with issues

of general significance to the profession of journalism

and the daily newspaper publishing business, ANPA

seeks to keep its members abreast of matters touching

on these concerns. In that r gard, the Association’s

member newspapers, individually and through the

ANPA, are ever vigilant to protect the publie’s

right under the First Amendment to information con-

cerning the activities of government and matters of

public interest.

The decision of the Court of Appeal of the State of

California for the Second Appellate District in this

cause of action constitutes another example of judi-

cial misapplication of the legal principles regarding

the scope of traditionally privileged fair comment and

the qualified constitutional privilege extended to publi-

‘ations in cases involving the defamation of public offi-

cials or publie figures, so painstakingly set forth by this

Court in New York Times and its progeny. It eannot

be denied that, inasmuch as the California Court uf

Appeal’s decision under challenge herein merely re-

versed the trial court’s grant of summary judgment,

were this Court to refuse to accept and consider the

substance of Petitioner’s claims, Petitioner would not

necessarily be precluded thereby from ultimately pre-

vailing in the underlying libel action. The decision

of the Court of Appeal, however, does injury to the

free exchange of ideas and opinion countenanced by

the First Amendment far more serious than merely

requiring Petitioners herein to go to trial and defend

against Respondent’s claim, as costly and _ time

Stee einer

a

ew eRe Me Bethe: . abaiget wit P

3

consuming as that may be. Rather, the Court of

Appeal’s decision involves a fundamentally invalid

interpretation of legal principles forged in the sub-

stantive law of libel. Moreover, it becomes another

in a substantial number of decisions wherein summary

judgment, either expressly or by implication, has been

disfavored and has been eroded as a practical means

of resolving libel actions on the merits.

It is the hope of ANPA that a definitive decision by

this Court reimposing summary judgment in this case,

where it so clearly is warranted, and reaffirming the

elements of proof under the New York Times stand-

ards which must be shown by a plaintiff in order to

successfully maintain a libel action in the face of a

defendant’s motion for summary judgment, will halt

the steady encroachment on the availability of sum-

mary judgment as a just means for summary disposi-

tion of libel claims wherein no disputed questions of

fact exist. Because of the importance of this issue to

ANPA, its members, and all persons who, through

comment and critical discussion on issues of public

significance, run the risk of being put to the defense in

a libel action, ANPA desires to present to this Court,

for its assistance, its views in regard to the important

issues jiivolved in this proceeding.

ARGUMENT

At the outset it must be pointed out that ANPA

strongly supports and adopts the position of Petition-

ers herein. ANPA believes that the Petitioners’ brief

accurately and forcefully sets forth the background of

this case, delineates the errors and misinterpretations

of constitutional dimension contained in the opinion

of the California Court of Appeal for the Second Ap-

4

pellate District, and persuasively presents legal reason-

ing and authority demonstrating the First Amendment

protections which the Petitioner should have been ac-

corded in the appeal proceeding below.

ANPA wishes to emphasize that grave errors have

been committed by the California Court of Appeal in

analyzing and ruling on significant issues related to the

substantive law of libel. The court’s well-intentioned

but misguided concern that Respondent’s claim be given

a full and fair hearing on the merits has effectively

annulled the Constitutional protections owed to the

defendant under N. Y. Times vy. Sullivan and its

progeny.

The Standard Employed by the California Court of Appeal To

Determine that Petitioners’ Cartoon Was Defamatory in

Nature Offends Both the Relevant Law of the State of

California and the Constitutional Standards Enunciated

in Greenbelt Coop. Pub. Ass’n v. Bresler and Old Do-

minion Branch No. 496 v. Austin

The major portion of the California appeal court’s

opinion below is devoted to the application of MacLeod

v. Tribune Pub. Co., 52 Cal. 2d. 536 (1959), to the pres-

ent ease. Therein, the Court discussed which standard

is applicable in analyzing the threshold issue in every

libel action—vis., whether the publication, by its terms,

is defamatory in nature. The Court focused its reli-

ance on a faulty interpretation of MacLeod vy. Tribune

Pub. Co., supra, and failed to consider federal consti-

tutional libel law which, in view of the appeal court’s

acknowledgment of Hartley as a ‘‘publie figure,”’

clearly pre-empts state law. See, Gertz v. Robert

Welch, Inc., 418 U.S. 328 (1974) ; Greenbelt Coop. Pub.

Ass’n Vv. Bresler, 398 U.S. 6 (1970); Associated Press

v. Walker and Curtis Pub. Co. v. Butts, 388 U.S. 130

Ott on bse sw ne =

— =~

Ct ws. eee

5

(1967) ; Cepeda v. Cowles Magazines, 392 F.2d 417 (9th

Cir. 1968).

The court interpreted the holding of MacLeod to

mandate denial of summary juagment where a publi-

cation may reasonably be held to ‘‘contain a possible

defamatory meaning when viewed by the eyes of the

average reader.’’ Petitioners’ Appendix A, p. 3; (em-

phasis added). Under the guidance of this spurious

interpretation of MacLeod, the Court held that it could

not as a matter of law find the Respondent was not

defamed. This judgment was made, however, despite

the fact that the court was unable to find in the politi-

eal cartoon in question a single false statement of fact,

which clearly is required under federal libel law. The

only ‘fact’? stated in the cartoon was its caption,

wherein the federal government was accurately charged

with responsibility for diverting 500,000 barrels of

Union Oil’s crude from Southern California to Guam.

Nevertheless the court pointed out that in view of the

fact that the ‘‘general tone of the cartoon’’ was not

charitable toward Respondent and the cartoon actually

invited persons to ‘‘think the worst’’ of Respondent,

there may be certain viewers who nevertheless would

construe the cartoon to charge Respondent with re-

sponsibility for the diversion order. Petitioner’s Ap-

pendix A, p. 6.

Such a tortured interpretation of the cartoon and

the utilization of a ‘possible [defamatory] implica-

tion’’ standard to reverse the trial court’s grant of sum-

mary judgment below patently ignores the relevant

state and federal law in respect of the defamatory

nature of false ideas, critical opinions, and rhetorical

hyperbole.

6

Turning first to a California state case, Yorty v.

Chandler, 13 Cal. App. 3d 469 (1970), the court there

makes it clear that where an allegedly defamatory pub-

lication contains rhetorical hyperbole or patently exag-

gerated epithets, and the reader may reasonably be

held to discern it as such, liability will not lie, despite

the fact that the possibility of a defamatory construc-

tion may still exist:

‘Because a political cartoon presents critical opin-

ion in imaginative and symbolic form, in claimed

instances of defamation a court must ferret out the

underlying themes of the cartoon and then deter-

mine whether these can reasonably be considered

libelous. [citations omitted |”’

13 Cal. App. 3d. at 472; (emphasis added).

In that case, the mayor of Los Angeles had been

lampooned for his publicly expressed aspirations for a

eabinet appointment by means of a political cartoon

depicting Mayor Yorty at his office desk talking on

the telephone while four white-coated medical attend-

ants with concerned expressions on their faces stood

around him. One orderly was holding a strait jacket

behind his back while another was beckoning the mayor

with his finger. The caption read, ‘I’ve got to go

now... I’ve been appointed Secretary of Defense and

the Seeret Service men are here!’’ In holding that this

eartoon did not impute mental instability or insanity

on the mayor’s part and that the cartoon was not

defamatory, the court reasoned:

‘‘TE]ven the most careless reader must have per-

ceived that the cartoon was no more than rhetor-

ical hyperbole, a vigorous expression of opinion

by those who considered Mayor Yorty’s aspira-

tion for high national office preposterous. To

ee eee

— ae es ae _

7

penalize defendants for publishing this political

cartoon would subvert the most fundamental

meaning of a free press, protected by the First

and Fourteenth Amendments.

* * x

We conclude that under both state and federal

law the trial court correctly determined that the

cartoon was not reasonably susceptible to a de-

famatory meaning and that consequently plaintiff

had failed to state a cause of action.”’

13 Cal. App. at 477; (emphasis added).

To require that a publication, in order to be deemed

defamatory, be ‘‘reasonably susceptible’? to such a

meaning, clearly affords significantly greater protec-

tion to the expression of critical comment on matters

of public importance than does the requirement that

a publication merely contain a ‘‘possible [defamatory ]

implication.”’

Not only is the California Court of Appeal’s adop-

tion of a ‘‘possible [defamatory] implication’’ stand-

ard at odds with the relevant state law of California;

under various decisions handed down by this Court,

it clearly is impermissible as a matter of constitutional

law. See, Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974) ; Old Dominion Branch No. 496 v. Austin, 418

U.S. 264 (1974); Greenbelt Coop. Publ. Ass’n vy. Bres-

ler, 398 U.S. 6 (1970).

In Gertz, this Court emphasized the distinction be-

tween constitutionally protected expressions of opinion

and false statements of fact:

‘Under the First Amendment there is no such

thing as a false idea. However pernicious an

opinion may seem we depend for its correction

8

not in the conscience of judges and juries but on

the competition of other ideas, But there is no

constitutional value in false statements of fact.’’

41 L.Ed.2d at 805.

In Old Dominion Branch No. 496, a companion deci-

sion to Gertz, plaintiffs were accused in the course of

a labor dispute of having ‘‘rotten principles,”’ of *‘lack-

ing character,”’ and of being ‘‘traitors.”’ In overturn-

ing a libel judgment against the defendants, the Su-

preme Court held:

‘‘Before the test of reckless or knowing falsity

can be met, there must be a false statement of fact.

Gertz v. Robert Welch, Inc., 418 U.S. at 339-340.

* * *

“The... use of words like ‘traitor’ cannot be con-

strued as representations of fact. As the Court

said long before Linn, in reversing a state court

injunction of union picketing, ‘to use loose lan-

guage or undefined slogans that are part of the

conventional give and take in our economic and

political controversies—like ‘unfair’ or ‘fascist’

—is not to falsify facts.’ [Citation]. Such words

were obviously used herein in a loose, figurative

sense to demonstrate the union’s strong disagree-

ment with the views of those workers who oppose

unionization. Expression of such an opinion, even

in the most perjorative terms, is protected under

federal labor law.

41 L.Ed.2d at 761-762.

In Greenbelt Coop. Pub. Ass’n., ‘he Court held that

there could be no recovery based on the use of the word

‘‘blackmail,’’ because it was clear from the context

that the word was no more than ‘‘rhetorical hyperbole,

a vigorous epithet’’ intended as criticism of the plain-

tiff’s ‘public and wholly legal negotiating proposals.’’

tut -* Sw =

9

26 L.Ed.2d at 15; ef. Buckley v. Littel, 394 F. Supp.

918 (1975).

In Fram v. Yellow Cab Company, 380 F. Supp. 1313

(1975), the United States District Court for the West-

ern District of Pennsylvania granted summary judg-

ment to the defendant—who on television had charac-

terized plaintiff's public comments as similar to ‘‘the

sort of paranoid thinking you get from a schizophren-

ic’’—hecause the ‘‘typical’’ or ‘“‘average’’ viewer would

recognize said statement to be rhetorical hyperbole.

Similarly, in the libel action Sellers v. Time, Inc.,

423 F.2d 887 (1970), the U.S. Court of Appeals for

the Third Circuit affirmed a grant of summary judg-

ment and based its analysis on whether ‘‘the language

used in the objectionable article could fairly and rea-

sonably be construed to”’ defame. 423 F.2d at 890;

(emphasis added). The court also expressly focused

its attention ‘‘on the impact of the publication on the

average reader of TIME.”’ Id., at 891; (emphasis

added).

The federal law and the law of the state of California

have firmly established, as applied to the facts under-

lying this action: (1) that any reference to Respond-

ent as heartless—although an adverse characterization

of Respondent’s personality—is an exaggerated ex-

pression of opinion, rather than a statement of fact,

and is therefore protected, Yorty v. Chandler, supra;

Correia v. Santos, 191 Cal. App. 2d. 844 (1961) ; Gertz

Vv. Welch, supra; Greenbelt Coop. Pub. Ass’n. vy. Bres-

ler, supra; Old Dominion Branch No. 496 v. Austin,

supra; and (2) that any implication contained in the

cartoon suggesting that Respondent was responsible

for the order to divert oil to Guam—despite the car-

10

toon caption’s accurate attribution of responsibility

for said order to the federal government—must be

‘‘measured, not so much by its effect when subjected to

the critical analysis of a mind trained in the law, but

by the natural and probable effect upon the mind of

the average reader [eitation].’’ MacLeod v. Tribune

Pub. Co. Inc., 52 Cal.2d. 536, 543 (1959). See also

Scott v. McDonneli Douglas Corp., 37 Cal. App. 3d.

277 (1974); Yorty v. Chendler, supra; Restatement

(First) of Torts § 569, comment d (1938) ; Greenbelt

Coop. Pub. Ass'n v. Bresler, supra; Sellers v. Time,

Ine., supra,

Thus the legal analysis and, your amicus submits,

the decision of the California Court of Appeal with

respect to the defamatory nature of the political car-

toon in question is clearly erroneous. The Court has

employed a definitional standard of defamation which

can apply to almost any statement of criticism, no mat-

ter how exaggerated, facetious or metaphorical. Clear-

ly the press cannot be expected to perform its consti-

tutionally protected function of vigorously dissemi-

nating news and other information to the publie when

faced with the prospect of liability for defamation on

such an attentuated basis as ‘‘a possible [defamatory |

implication.”’

The Court of Appeal Committed Error of Constitutional

Dimension by Reversing the Trial Court’s Grant of Sum-

mary Judgment Without Making Any Determination of

“Actual Malice” on the Part of Petitioners

Under the New York Times standard regarding

defamation of public officials—since applied to public

figures, such as the Court of Appeal conceded Respond-

ent to be—a plaintiff may not successfully maintain an

action for defamation unless he raises triable issues

11

of fact regarding two material elements of prooi: (1)

that the publication was defamatory in nature; and

(2) that the defendant acted either with knowledge

of falsity or a reckless disregard for truth. The

quality of the evidence required to raise a triable

issue of fact as to ‘‘actual malice” is set forth in

Cervantes v. Time, Inc., 464 F.2d. 986 (Sth Cir. 1972).

There the court affirmed a summary judgment for the

defendant, noting that the plaintiff had failed in his

obligation ‘‘to demonstrate with convincing clarity

that either defendant acted with knowing or reckless

disregard for truth.’? Jd. at 992, emphasis supplied.

See also Field Research Corp. v. Patrick, 30 Cal. App.

6d. 603, 608 (1973).

The Court of Appeal below patently failed to apply

the twofold requirement of the New York Times rule.

As already discussed above, the Court erroneously

ruled that it could not, as a matter of law, hold Peti-

tioner’s cartoon to be nondefamatory. Yet even as-

suming, arguendo, that the cartoon did contain false

statements of fact which would reasonably tend to

injure Respondent’s reputation, only one of the two

necessary elements of liability is established. It still

must be shown that Petitioners acted with knowing or

reckless disregard for truth. And the affdavits of

Petitioners, uncontradicted by the Respondent, show

that at no time did Petitioners aet with knowing or

reckless disregard for truth.

In its opinion, the California Court of Appea’

spends one paragraph setting forth the applicable law

under New York Times v. Sullivan, et seq., and only

one sentence applying said law to the facts herein:

“While ".espondents made a strong showing of

the basis for their charge that appellant’s re-

12

fusal to allocate the shortfall caused a bleak

Southern California Christmas, negating reckless

regard [sic] of the truth or knowledge of falsity

in that respect, they made no effort to demonstrate

that there was any basis for a charge that appel-

lant was in some way responsible for causing the

diversion order.”’

Petitioners’ App. A, pp. 8-9.

In effect the Court has turned New York Times

around, by reasoning that since Petitioners failed to

demonstrate some factual basis for implying that Re-

spondent was responsible for the diversion order—an

implication which Petitioners claim does not even exist

in the cartoon—Respondent has raised a triable issue

ef fact as to whether Petitioners acted with actual

malice. In fact Respondent has failed to allege any

culpable conduct on Petitioners’ part which would

exeeed ‘‘common law malice”’ (i.e., hatred, spite, ete.)

or negligence, both of which are insufficient under

New York Times.

Although a defendant’s inability, if thoroughly

tested, to demonstrate any factual basis for his defam-

atory statement may refleet upon his competence and/

or good will, it is not ‘‘sufficient evidence to permit the

conelusion that the defendant in fact entertained seri-

ous doubts as to the truth of his publication.’’ St.

Amant v. Thompson, 390 U.S. 727, 731 (1968). Fur-

thermore, it is evident beyond peradventure that the

constitutional privilege established under New York

Times is not overcome by proof of negligence, Gar-

rison v. Louisiana, 379 U.S. 64, 79, (1964) ; ill will,

Beckley Newspapers v. Hanks, 389 U.S. 8 (1967); or

intent to inflict harm, Henry v. Collins, 380 U.S. 396

(1965).

13

Your amicus curiae respectfully wishes to emphasize

that by equating the Petitioners’ failure to demon-

strate a factual basis for an allegedly defamatory

interpretation of their political cartoon, which they

have felt at all times cannot reasonably be made, with

knowledge or disregard for the cartoon’s defamatory

nature is clearly reversible error.

The Lower Court's Disapproval of Summary Judgment in This

Action Undermines a Very Necessary Means of Avoid-

ing Unnecessary Libel Trials Which Put a Chill on the

Exercise of First Amendment Rights

Although Petitioners may ultimately vindicate by

means of a directed verdict their assertion that Re-

spondent has failed to raise triable issues of material

fact which would sustain a verdict of liability, the

lower court’s reversal of summary judgment raises

concerns of far greater significance than the time and

expense which will be required of Petitioners in fully

litigating this action.

For the burden of proof required of a plaintiff, under

the erroneous standards employed by the California

Court of Appeal, in order to raise a triable issue of

fact as to a publieation’s defamatory content and the

presence of ‘‘actual malice’”’ is so lenient as to negate

substantially the special protection afforded to libel de-

fendants under New York Times and severely limit

the availability to a defendant of summary judgment.

As a result, those persons who legitimately exercise

their First Amendment right to publish critical com-

ment on matters of public interest involving publie

figures or public officials, if sued within the Second

Appellate District of California, may expect to face

costly discovery and trial on even unfounded allega-

tions of defamation raised by a libel plaintiff, unless

14

a compromise settlement can be reached. The effect

thereof upon publishers dedicated to the legitimate ex-

pression of critical or unpopular social comment would

be devastating.

The sheer volume of published material in this coun-

try has steadily increased. The newspaper profession

has grown in both size and, due to an increased em-

phasis upon investigative reporting and advocacy

journalism, in its impact upon public opinion. It also

may be supposed that as Americans grow more numer-

ous, as their relations with one another become more

complex, and as they find themse'ves less able to reach

their potential and goals in life solely on the basis of

their individual efforts, their estimate of the worth of

their reputational interests will increase. Against this

background, the volume of libel suits brought and the

size of damage awards in libel actions has inereased

dramatically in the 1960’s and early 1970’s, 1 A. Hanson

Lipet AND ReLatep Torts (pt. vii) (1969) ; Murnaghan,

“From Figment to Fiction to Philosophy—The Re-

quirement of Proof of Damages in Libel Actions’’, 22

Catholic University Law Review 1 (1972). This trend

and the well-recognized fact that the threat of being

put to the defense in a libel action may result in self-

censorship that is chilling to the exercise of First

Amendment freedoms should be of grave concern to all

citizeus generally and to this Court in particular. See

Dombrowski vy. Pfister, 380 U.S. 479, 487 (1965) ;

NAACP vy. Button, 371 U.S. 415, 482 (1963).

Yet regardless of the substantive threat to free

speech posed by unfounded civil libel actions, many

courts expressly disfavor summary judgment, particu-

larly on issues such as ‘factual malice’? which involve

a defendant’s state of mind. See Ragano v. Time, Inc.,

ait ie

ns estes Sine

15

302 F. Supp. 1005, 1010 (D.C. Fla. 1969), affirmed 427

F.2d 324 (2nd Cir. 1969), cert. den. 396 U.S. 1049;

Fignole v. Curtis Pub. Co., 247 F. Supp. 595 (D.C. N.Y.

1965) ; ef., Poller v. C.B.S. Inc., 368 U.S. 464 (1962) ;

Wright & Miller, FeperaL PracricE AND PROCEDURE,

§ 2712, fn. 54 (1973).

Your amicus respectfully wishes to emphasize that

Respondent has failed to raise a genuine issue of fact

bearing on the question whether Petitioners herein

published with knowing or reckless disregard for truth.

Petitioners therefore are entitled to judgment now and

should not be put to the burden and expense of litigat-

ing this action. In the Second Appellate District of

California as well as the rest of the United States,

‘‘[s]ummary judgment serves important functions

which would be left undone if courts too restrictively

viewed their power. * * * In the First Amendment area,

summary procedures are even more essential.’’? Wash-

ington Post Co. v. Keogh, 365 F.2d 965, 967-968 (U.S.

App. D.C. 1966), cert. den., 385 U.S. 1011. ANPA

therefore urges this Court to reaffirm the very neces-

sary role summary judgment plays in the summary

disposition of unfounded libel actions alleging defama-

tion of public figures and public officials.

CONCLUSION

Your amicus has attempted to elucidate for this

Court the very significant First Amendment issues

surrounding the California court’s decision below. The

constitutional infirmity of that decision is evident.

ANPA recognizes, however, that this Court may be

inclined to reject the Petition herein because Peti-

tioners may ultimately prevail on their claim of privi-

lege by means of a directed verdict or favorable ver-

16

dict from the jury at trial. Your amicus respectfully

requests this Court to resist that inclination. To

uphold or refuse to consider the reversal of summary

judgment in this matter, which would result in expen-

sive and time consuming litigation, can only serve to

cause uncertainty and timidity in those who, through

political cartoonists, employ symbolism and caricature

to express meaningful social comment and criticism,

It would contribute to an atmosphere in which the

open, uninhibited and robust exercise of First Amend-

ment freedoms cannot long survive,

For the reasons stated herein it is respectfully

urged that this Court grant the Petition for Writ of

Certiorar! in order that the substantia] constitutional

questions raised therein can be fully examined.

Respectfully submitted,

ARTHUR B,. Hanson

MITCHELL W. DALE

Hanson, O’Brien, Birney

AND BUTLER

888 Seventeenth Street, N.W.

Washington, D. C. 20006

Attorneys for Amicus Curiae

American Newspaper

Publishers Association