Opposition — Edwards v. New York Times Co.

Supreme Court, U.S,

FILED |

NOV 18 1977 |

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

No. 77-576

J. Gorpon Epwarps, Pu.D., THomas H. Juxes, Px.D.,

Rosert H. Wauire-Strevens, Px.D.,

Petitioners,

v.

Tue New York Times Company and Routanp C. CLEMENT,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF RESPONDENT

THE NEW YORK TIMES COMPANY IN OPPOSITION

FiLoyp ABRAMS

Evucene R. ScHEman

Ruts D. MacNavenuton

Canmt Gorpon & Rerpen

Counsel for Respondent

The New York Times Company

80 Pine Street

New York, New York 10005

November 18, 1977

INDEX

PAGE

ND TINY cenntnnnsseccsnnneneniicimeiniimianmetnintelannnacteniinmnnnts 1

I | cernsctnctnsegentninnninn — 2

Question Presented ......................... siathdhahatisininisdiasdaleniiin 2

Constitutional Provisions Involved ...........................--+---- 2

Statement of the Case ........................ - i

I cchsiniiisstisininesnisirctinnsesiisaniitpimiicicsciitiadesusinitaiisiniibuaiidials 9

SETEIIIIIR cevisinicsntiensienciohaines 15

TasLe or CrraTions

Cases:

Bandelin v. Pietsch, 98 Idaho 337, 563 P.2d 395 (1977),

cert. denied, 46 U.S.L.W. 3238 (U.S. October 11,

—___, GRRREERSAR SESE eve own ote Ts salcalinaalii 13

Campo -. Paar, 18 App.Div.2d 364, 239 N.Y.S.2d 4

(1st Dep’t 1963) -....... sain =. 10n

Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.),

cert. denied, 46 U.S.L.W. 3216 (U.S. October 3,

USTED sinsiieiciccidingsiisshlisdciaitpliindinitnasiiinanibscanaetiitediiibatedbeniaitiiaiiiiaes 13

Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251 (Ct.

Spec. App. 1975), cert. denied, 426 U.S. 907 (1976) .... 13

Medina v. Time, Inc., 439 F.2d 1129 (1st Cir. 1971) —.. 11

ii

PAGE

New York Times Co. v. Sullivan, 376 U.S. 254

RRR SE EST DR DE ne RAT 6, 8, 9, 10, 13, 14, 14n

Novel v, Garrison, 338 F.Supp. 977 (N.D. Ill. 1971) ... 12

Oliver v. Village Voice, Inc., 417 F.Supp. 235 (S.D.N.Y.

SPOT. bicsdittasdhealh cestidiecbithsiceinapiliadecnpeariboniarsciesnicllieariplititcii itis 12

Roberts v. Breckon, 31 App.Div. 431, 52 N.Y.S. 638

I ia 10n

St. Amant v. Thompson, 390 U.S. 727 (1968) ............... 13

Seroff v. Simon & Schuster, Inc., 6 Mise.2d 383, 162

N.Y.S.2d 770 (Sup. Ct. N.Y. Co. 1957), aff’d, 12 App.

Div.2d 475, 210 N.Y.S.2d 479 (1st Dep’t 1960), app.

denied, 12 App.Div.2d 755, 210 N.Y.S.2d 1000 (1st

REET Ie TIRES IE a CE 9n-10n

Storch v. Gordon, 23 Mise.2d 477, 197 N.Y.S.2d 309

I, 10n

Thuma v. Hearst Corp., 340 F.Supp. 867 (D.Md.

ID iestesecipndiphicdaatlchcn inden lia aictcisesihtliteanhiciibebe 12

Time Inc. v. Pape, 401 U.S. 279 (1971) 0000000... 10, 11, 12

Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th

REERERER RSG EA OA A eC ae A ape 12,14

Other Authorities:

Judicial Code

ae Gees ee Ce 2

ae Uae eee Coere? oo. 6

U.S. Const.

eet ieceieisdleehiitieidainsebiaclactennsimnetdeitertciaeheloidainiakimias passim

| EET I Sa eae Ie 2

IN THE

Supreme Court of the United States

No. 77-576

J. Gorpvon Epwarps, Px.D., THomas H. Juxes, Px.D.,

Rosert H. Wuirte-Srevens, Px.D.,

Petitioners,

v.

Tue New York Times Company and Rouanp C, CLEMENT,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF RESPONDENT

THE NEW YORK TIMES COMPANY IN OPPOSITION

*-

Opinions Below

The opinion of the Court of Appeals for the Second

Cireuit (App. A of Petition) is reported at 556 F.2d 113.

The opinion of the District Court (App. C of Petition)

denying the motion for judgment n.o.v. of defendant The

New York Times Company (the “Times”) is reported at

423 F. Supp. 516. The opinion of the District Court (App.

B of Petition) denying the motion of defendant Roland C.

Clement for judgment n.0.v. is unreported. The opinion of

the District Court denying motions by the Times, Clement

and certain other defendants for summary judgment after

reargument of a prior order denying summary judgment is

reported at 411 F.Supp. 744 and not appended to the

Petition.*

*The Petition (p. 2) inaccurately states that the opinion re-

ported at 411 F.Supp. 744 is reproduced as Appendix D.

Jurisdiction

Petitioners assert jurisdiction of this Court arises under

28 U.S.C. § 1254(1) (1970).

Question Presented

Whether the United States Court of Appeals for the

Second Circuit correctly held that a libel judgment against

the Times for accurately reporting charges made by the

National Audubon Society against public figure plaintiffs

was impermissible under the First Amendment to the

United States Constitution, and, in any event, unsupported

by the clear and convincing proof needed to sustain a jury

verdict of actual malice.

Constitutional Provisions Involved

The First Amendment to the United States Constitution

provides :

“Congress shall make no law respecting an- estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech or of the

press; or the right of the people peaceably to assem-

ble, and to petition the Government for a redress of

grievances.”

The Fourteenth Amendment to the United States Con-

stitution provides, in pertinent part as follows:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

3

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.”

Statement of the Case

This case arises out of the accurate reporting by the

Times of accusations made by officials of the National

Audubon Society, Inc. (“Audubon”) against five scientists,

three of whom commenced this action. The accusations

were made in the miast of the heated national debate over

the use of DDT and its possible effect on bird life in which

the plaintiffs and Audubon were—and are—opponents.*

In the context of that debate, Audubon accused the plain-

tiffs of being, in effect, paid liars, an accusation reported

by the Times, together with denials by those accused.

With a single excepton, the facts of this action as they

relate to the Times have essentially been undisputed from

the outset. In late July or early August, 1972, the Fore-

word to the April 1972 issue of Audubon’s quarterly pub-

lication, American Birds, came to the attention of John

Devlin, Sr., a Times reporter who had often written on

nature subjects. The Foreword denounced the use being

made of Audubon’s bird count data by some proponents

* Audubon actively supported a ban on the use of DDT which

was ordered by the Environmental Protection Agency two months

before the publication of the Times article at issue in this litigation.

The plaintiffs vigorously opposed the ban and organizations that

advocated it. As the Court of Appeals noted, at times the DDT

controversy in which “fundamental questions of value” were at

stake, “exceeded the limits of temperance and good manners.” (556

F.2d at 116, App. A of Petition, p. 4A) For example, referring

to Audubon’s opposition to DDT, petitioner Dr. J. Gordon Edwards

wrote to the Editor of the Audubon Magazine on February 17,

1970 that “T still find it incredible that the Audubon Society leaders

persist in their heavily-financed de facto murder plot against the

human race... .”

4

of DDT, and accused them of making “false and mislead-

ing” statements and of distorting “the facts for the most

self-serving of reasons.” It concluded as follows:

“With increased local coverage by the press of

Christmas Bird Count activities, it is important that

Count spokesmen reiterate the simple and truthful

fact that what we are seeing is result of not more birds,

but more birders. Any time you hear a ‘scientist’ say

the opposite, you are in the presence of someone who

is being paid to lie, or is parroting something he

knows little about.” (emphasis in original)

Believing the charges to be newsworthy, Devlin tele-

phoned Robert S. Arbib, Jr. the Audubon editor who had

signed the Foreword, and asked Arbib to identify the

unnamed persons he referred to in the Foreword as paid

liars. (Tr. 65-68, 434-35)* Arbib, after initially declining

to provide any names, passed on Devlin’s inquiry to

Roland C. Clement, Vice President of the Audubon Society

and a respondent herein, who gave Arbib a written

critique of the pro-DDT views of five scientists he had

prepared for publication. (Tr. 438, 501) Arbib then

furnished Devlin with five names drawn from Clement’s

article, including the names of petitioners Dr. J. Gordon

Edwards, Dr. Thomas H. Jukes and Dr. Robert H. White-

Stevens. (Tr. 441)** What was said at this time later was

disputed by Devlin and Arbib, in the one factual contro-

versy that arose in this litigation with respect to the

Times. Arbib testified that when he gave Devlin the

scientists’ names, he specifically cautioned the reporter

* References are to page numbers of the Joint Appendix filed

with the Court of Appeals.

** Arbib, in his testimony, disclaimed knowledge when he wrote

the Foreword of any particular scientists to whom the Foreword

related. (Tr. 444)

4)

that the named individuals were to be referred to as

misusers of Audubon data, not as persons who were paid

to lie. (Tr. 440) Devlin denied receiving any such warning.

(Tr. 133-34)

After his interview with Arbib, Devlin attempted to

reach the scientists who had been named by the Audubon

editor, and was successful in contacting three of them. He

spoke with Dr. White-Stevens and Dr. Jukes, who denied

the Audubon charges. (Tr. 164, 291-92) Both followed up

their conversations with Devlin by sending him letters

enclosing scientific literature on the DDT question. (795e-

970e, 689e-741e) Devlin also spoke with Dr. Donald A.

Spencer, who called the Audubon charges “almost libelous.”

(Tr. 75)

On August 14, 1972, the Times published, under the head-

line “Pesticide Spokesmen Accused of ‘Lying’ on Higher

Bird Count,” an article by Devlin concerning the Audubon

Foreword. The article quoted and discussed the Foreword,

named the five scientists who had been cited by Arbib in

his interview with Devlin and summarized the reactions

and denials of the scientists to the Audubon charges.

On the morning of the Times’ publication, Clement

drafted a letter to the Times, read it over the telephone to

Arbib who was out of town and sent it out over Arbib’s

signature. (Tr. 462-64, 504) The letter, which was not

published by the Times, referred to “Jack Devlin’s punchy

piece” and concluded with the following paragraph:

“Nor do we like to call people liars, but those who

have most consistently misused our data—Robert H.

White-Stevens of Rutgers University, Thomas H.

Jukes of the University of California, J. Gordon

Edwards of San Jose State College, Donald A. Spencer

of the National Agricultural Chemicals Association,

and more recently Nobel laureate Norman E. Borlaug

6

—certainly have had time to learn from our patient

explanations of their misinterpretations of our data

over the several years of the DDT controversy.”

Petitioners filed suit against the Times and Audubon in

April 1973, later joining Arbib and Clement as defendants.

As it relates to the Times, the complaint alleged that in

reporting the charges made by Audubon, the Times had

published defamatory falsehood about the plaintiffs with

malice. Counsel for plaintiffs conceded at trial that no

charge of actual malice in the sense of knowing falsity

had been made against the Times but rather the allegation

against the Times under the rule of New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), “depends squarely upon the

second branch, that is, a reckless disregard as to whether

the matter was true or not.” (Tr. 407)*

Proceedings in the District Court

On January 23, 1976, the District Court, Hon. Charles M.

Metzner, U.S.D.J., ruled that Drs. Edwards, White-Stevens

and Jukes were public figures in the context of this action,**

and denied motions made by the various defendants for

summary judgment on the ground that triable issues of

fact had been raised in pretrial discovery. (App. D of Peti-

tion) When motions for reargument and certification of

that decision to the Court of Appeals under 28 U.S.C.

§ 1292(b) (1970) were made, Judge Metzner granted re-

argument but adhered to his prior ruling denying summary

judgment. (411 F.Supp. 744) His opinion with respect to

the Times (which also denied certification) was based in

its entirety on the existence of a single factual issue which

*The District Court later ruled, in denying the motion of the

Times for judgment n.o.v., that “[i]t cannot be said that the Times

knew that the statements in the story were false.” (423 F.Supp. at

519, App. C of Petition, p. 28A)

** This ruling was not thereafter challenged by plaintiffs.

7

was held to preclude the granting of summary judgment:

conflicting deposition testimony of Arbib and Devlin as to

what was said in the telephone conversation during which

Arbib furnished Devlin with the scientists’ names later

published by the Times. Judge Metzner concluded that

summary judgment could not be granted in the face of such

conflicting testimony, because:

“In essence, we are confronted with what may be called

a ‘one on one’ situation. If the finder of the fact

believes Arbib and disbelieves Devlin, then a jury

would be justified in finding plaintiffs have sustained

their burden of showing actual malice.” Id. at 746.

The action was then tried and on June 9, 1976, following

five days of trial, the jury returned a verdict against the

Times and Audubon defendant Clement. The jury awarded

compensatory damages against the Times and Clement

with respect to the Times article of August 14, 1972 in the

amounts of $21,000 to Dr. Edwards and $20,000 each to Dr.

Jukes and Dr. White-Stevens. An additional $1.00 in

compensatory damages was awarded to each plaintiff

against Clement with respect to his letter of August 14,

1972 to the Times. No punitive damages were awarded.

The Times and Clement filed motions for judgment not-

withstanding the verdict, both of which were denied in

separate opinions issued in December 1976 Ly Judge

Metzner. (423 F. Supp. 516, App. B and C of Petifion) In

his opinion as to the Times, Judge Metzner interpreted the

jury verdict against both the Times and Clement as reflect-

ing the jury’s belief that the Times accurately reported the

Clement-Audubon charges,* but cited the denials of the

scientists and the scientific material furnished to Devlin by

Drs. Jukes and White-Stevens in holding that the verdict

against the Times was supported by clear and convincing

* See note at pp. 9-10, infra.

8

proof that Devlin’s article was published with reckless dis-

regard of the truth. (423 F. Supp. at 519, App. C of Peti-

tion, pp. 26A-29A)

The Decision of the Court of Appeals

The decision of the Court of Appeals for the Second

Cireuit from which a writ of certiorari is now sought re-

versed the judgments against the Times and Clement and

dismissed the complaint. In an opinion by Chief Judge

Irving R. Kaufman writing for a unanimous panel (com-

prised, as well, of former Justice Tom C. Clark of this

Court and Judge William J. Jameson, Senior United States

District Judge for the District of Montana, sitting by

designation) the Court held that as libel law had developed

since New York Times Co. v. Sullivan, supra, the verdict

against the Times was constitutionally impermissible. In

so holding, the Court initially noted that

“Implicit in the jury’s verdict against Clement is the

finding, which we must accept, that the Times accu-

rately reported the five scientists whose names were

furnished by Arbib were the ‘paid liars’ referred to

in the Amercian Birds Foreword.” (556 F.2d at 120,

App. A of Petition, p. 13A)

The Court also observed that “Devlin reported Audubon’s

charges fairly and accurately,” without espousing the ac-

cusations themselves, and that he “published the maligned

scientists’ outraged reactions in the same article that con-

tained the Society’s attack.” (556 F.2d at 120, App. A of

Petition, p. 14A) In light of the protection afforded in the

case law to such reports of statements by third parties, the

Court concluded:

“We believe that the New York Times cannot, con-

sistently with the First Amendment, be afflicted with

a libel judgment for the accurate reporting of news-

9

worthy accusations made by a responsible and well-

noted organization like the National Audubon Society.”

(556 F.2d at 122, App. A of Petition, p. 19A)

The Court of Appeals further held that the evidence sub-

mitted at trial was “manifestly insufficient” to meet the

demanding standard of New York Times Co. v. Sullivan,

even absent special First Amendment protection for neu-

tral reportage. The Court rejected as a possible basis for

a finding of actual malice against the Times the denials by

the accused—which the Court noted are “commonplace in

the world of polemical charge and countercharge”—as well

as the “mass of materials” sent Devlin by the scientists

which were, in any event, “largely irrelevant to the Bird

Count controversy, and completely irrelevant to the as-

sertedly libelous accusations of the Audubon Society.”

(556 F.2d at 121, App. A of Petition, pp. 15A-16A)

Rehearing en banc was sought by petitioners and denied

on July 20, 1977. °

ARGUMENT

The essence of the jury finding in this case was—as the

District Court and the Court of Appeals both held—that

the Times had accurately reported that the five scientists

identified by Arbib were those referred to as paid liars in

the Audubon Foreword.* Given this factual finding, peti-

* Both courts were plainly correct on this point. If the jury had

believed otherwise, it could hardly have held against Clement with

respect to the Times article of August 14 since, plainly, to the extent

the Times printed information that Clement did not cause to be

furnished to it, or, alternatively, printed information which was

contrary im fact to that provided it as a result of Clement’s

efforts, there could have been no basis for finding Clement liable.

New York law has long held that when a second party distorts

information furnished it by another into a libel, the first party

bears no responsibility for the libel. Seroff v. Simon & Schuster,

10

tioners have utterly failed to cast doubt on the correctness

of the Court of Appeals’ holding that the libel judgment

against the Times was constitutionally impermissible—let

alone to set forth a basis for review by this Court of that

decision.

The holding of the Court of Appeals is entirely con-

sistent with case law since New York Times Co. v. Sullivan

affording protection to news reports describing (without

commenting on the truth of) newsworthy accusations made

against public figures. It is, in fact, based upon the ruling

of this Court in Time, Inc. v. Pape, 401 U.S. 279 (1971).

In that case this Court held that the omission of the word

“alleged” from a Time magazine article summarizing a

federal commission’s report on police brutality failed to

create a jury issue of actual malice, although the omission

was done knowingly and caused the article to convey an

erroneous impression that the commission had adopted as

fact the allegations of a complaint filed in federal court.

In the Court’s view, the belief of Time employees, even if

misguided, that their article fairly stated what the com-

mission had said, provided no basis for an inference by the

jury of actual malice. The Court held that, at most, defen-

dants had committed an error of editorial judgment in

adopting “one of a number of possible rational interpreta-

Inc., 6 Mise.2d 383, 391, 162 N.Y.S.2d 770, 777, 778 (Sup. Ct. N.Y.

Co. 1957), aff'd, 12 App.Div.2d 475, 210 N.Y.S.2d 479 (1st Dep’t

1960), app. denied, 12 App.Div.2d 755, 210 N.Y.S.2d 1000 (1st

Dep’t 1961). It has likewise been held that a person who gives a

defamatory statement to a newspaper which later prints it “is

responsible for any damage caused by the publication,” but only

“to the extent that the article represents an accurate statement”

of what he said. Campo v. Paar, 18 App.Div.2d 364, 367-68, 239

N.Y.S.2d 494, 498 (1st Dep’t 1963). See also, Storch v. Gordon,

23 Mise.2d 477, 479, 197 N.Y.S.2d 309, 312, 313 (Sup. Ct. Kings

Co. 1960) ; Roberts v. Breckon, 31 App.Div. 431, 433-34, 52 N.Y.S.

628, 640 (4th Dep’t 1898).

11

tions of a document that bristled with ambiguities.” (401

U.S. at 290)

The Court in Pape attached special significance to the

fact that the “news” element of the Time article there at

issue, like the Devlin article of August 14, 1972, was the

making of certain statements by a third party, which Time

itself had not endorsed or adopted. The Court recognized

that “a vast amount of what is published in the daily and

periodical press purports to be descriptive of what some-

body satd rather than of what anybody did.” (401 U.S. at

285 (emphasis in the original)) Noting that “(t]he ques-

tion of the ‘truth’ of such an indirect newspaper report

presents rather complicated problems”, the Court indicated

the need for special solicitude under the First Amendment

for newspaper reports recounting what others have said

without taking any independent position on the truth of

those statements. (401 U.S. at 286)

Since the Pape ruling, the principle that the accurate

reporting of charges against public figures made by reliable

sources must receive special First Amendment protection

has led a number of courts to afford just such protection.

While the Edwards ruling is the latest—and most thought-

ful—of these cases, it is consistent with all of them. Peti-

tioners have cited no cases to the contrary and we are aware

of none.

One prior ruling to the same effect as Edwards was that

of the Court of Appeals for the First Cireuit in Medina v.

Time, Inc., 439 F.2d 1129 (1st Cir. 1971) affirming a lower

court’s summary judgment for defendants. The challenged

story discussed the My Lai tragedy and carried charges

made by an independent party claiming that plaintiff had

killed a child. On appeal from summary judgment, plain-

tiff had argued that Time was liable for asserting the truth

12

of charges against the plaintiff contained in a statement

made to Time’s reporter and reprinted in Time’s story dis-

cussing the plaintiff. Finding that Time had merely re-

counted the charges without asserting their truth, the

Court held that, under Pape, no showing of actual malice

could be sustained.

Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th Cir.

1975), similarly concludes that a publisher cannot, con-

sistently with the First Amendment, be held liable for re-

porting accusations made against a public figure by a

reliable source, even if the underlying charges reported

are later determined to be false. District Court cases with

similar holdings include Thuma v. Hearst Corp., 340

F.Supp. 867 (D.Md. 1972); Novel v. Garrison, 338 F.Supp.

977 (N.D.Ill. 1971); and Oliver v. Village Voice, Inc., 417

F.Supp. 235 (S.D.N.Y. 1976).

These cases, together with the Edwards decision, do no

more than reaffirm what we believe should be a self-evident

proposition—that the press must be free to report accusa-

tions such as those reported by the Times without bearing

the responsibility for their underlying truth. It should be

clear, for example, that if a candidate for the office of

Vice President of the United States makes defamatory

statements about a rival candidate, the press may freely

report them, regardless of the views of the journalists or

editors as to the truth of the charges. Of course, it is well

established, as the Court of Appeals recognized, that a

publisher may be held liable for reporting defamatory

charges that he “in fact espouses or concurs in... [or] de-

liberately distorts.” (556 F.2d at 120, App. A of Petition, p.

14A) But if, as here, the charges are reported fairly and

reasonably accurately, in the words of the Court of Appeals,

“(t]he public interest in being fully informed about con-

troversies that often rage around sensitive issues demands

13

that the press be afforded the freedom to report such

charges without assuming responsibility for them.” (556

F.2d at 120, App. A of Petition, p. 14A) The petition for

certiorari, having failed to cite a single case to support a

contrary result, let alone a single supportable policy rea-

son for such a result, provides no basis for review by this

Court.

The alternative holding of the Court of Appeals itself

suggests the undesirability of plenary review by this Court.

The determination that “[e]ven absent the special pro-

tection afforded to neutral reportage, . . . the evidence

adduced at trial was manifestly insufficient to demonstrate

‘actual malice’ on the part of the Times” * is precisely the

sort that this Court has frequently refrained from review-

ing. See, e.g., Bandelin v. Pietsch, 98 Idaho 337, 563 P.2d

395 (1977), cert. denied, 46 U.S.L.W. 3202 (U.S. October 11,

1977) ; Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.),

cert, denied, 46 U.S.L.W. 3216 (U.S. October 3, 1977);

Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251 (Ct. Spec.

App. 1975), cert. denied, 426 U.S. 907 (1976).

Moreover, the decision of the Court of Appeals as to

this issue was plainly correct. At the heart of the allega-

tions of reckless disregard made in the petition for

certiorari is the notion that having received denials of the

Audubon charges from the three scientists called by Devlin

and having received information from two of the scientists

setting forth their scientific positions, the Times should

not have printed the story without more investigation

and/or verification. But the law simply does not permit

reckless disregard to be so divined. In both New York

Times Co. v. Sullivan, supra, and St. Amant v. Thompson,

390 U.S. 727 (1968), the failure to engage in precisely such

* 556 F.2d at 120, App. A of Petition, p. 15A.

14

pre-publication investigations was held to be inadequate

as a matter of constitutional law to sustain findings of

liability. As this Court explained in Sullivan, evidence of

an inadequate investigation “supports at most a finding of

negligence in failing to discover the misstatements, and is

constitutionally insufficient to show the recklessness that is

required for a fin¢ing of actual malice.” (376 U.S. at 288)

Petitioners cite no authority to challenge the Court of

Appeals’ finding that the fact of the plaintiffs’ denials of

the Audubon charges was insufficient to support a verdict

against the Times. Apart from what we believe to be its

evident correctness, the Court of Appeals’ view that denials

from persons criticized are so common as to “hardly alert

the conscientious reporter to the likelihood of error,” much

less provide a basis for liability under the clear and con-

vincing proof standard of Sullivan, is entirely consistent

with cases such as Vandenburg v. Newsweek, Inc., supra.

Likewise, even if, as petitioners assert, the information on

DDT forwarded by the scientists to Devlin discussed

Audubon’s bird count data (Petition, p. 22), the Court of

Appeals’ finding is unrefuted that this information, being

“eompletely irrelevant” to the merits of the Audubon

charges, could not, consistently with Sullivan, conceivably

provide a basis for a judgment against the Times.*

* We do not deal in this brief with petitioners’ suggestion that

the Court of Appeals reversed the judgments herein for insufficient

proof of knowing falsity, and thus allegedly “severed” the reckless

disregard branch of the Sullivan test (Petition, pp. 3, 11), as this

either misreads or misrepresents Judge Kaufman’s opinion. Quite

to the contrary, with respect to the Times, Judge Kaufman noted

that the propriety of Judge Metzner’s finding of recklessness against

the Times was the sole issue before the Court of Appeals (556

F.2d at 119, App. A of Petition, p. 13A), and that the absence of

any issue of alleged knowing falsity was “uncontested.” (556 F.2d

at 120, App. A of Petition, p. 15A)

15

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be denied.

Respectfully submitted,

FLoyp ABRAMS

EKvcene R. Scuerman

Rutu D. MacNauenuron

CanILL Gorpon & Rernpen

Counsel for Respondent

The New York Times Company

80 Pine Street

New York, New York 10005

November 18, 1977