Petition — Hutchinson v. Proxmire

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IN THE SUPREME COURT OF THE: =:

UNITED STATES | OCT 20

OctToBER TERM, 1978

978

MIGHAEL Re DAK, JR., CLERK

Ronatp R. Hutcutinson,

Petitioner,

Witu1aM Proxmire and

Morton ScHwaRrtTz,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Fraser T'rREBILCOCK Davis & FostER

By: Micuaru E. CavanaucH

And: Davin E.S. Marvin

Business Address:

1018 Michigan National Tower

Lansing, Michigan 48933

Telephone: 517/372-0235

Aserc, Bett, BLAKE & MetTzNER

By: Carrot EK. Metzner

Business Address:

222 West Washington Ave.

Madison, Wisconsin 53703

Telephone: 608/257-3764

Counsel for Petitioner Ronald R. Hutchinson

AMERICAN BRIEF AND RECORD COMPANY, 125 WEALTHY STREET, S. E.

GRAND RAPIDS, MICHIGAN 49503 — TELEPHONE 458-5326

Leeann"

INDEX

Page

SE I anne iil

a i At sa oidndichncinenaainamnlascanonies 1

IN ih cel fr chneescsbcnsintacbanebeensomdaininaeron 2

QUESTIONS PRESENTED .....-<....-...2.........-----.eccereeeose 2

CONSTITUTIONAL PROVISIONS INVOLVED ..... -2

ope vy i fe ee iw i 8 OY.) | See 3

REASONS FOR GRANTING THE WRIT —

1. The Decision Below Is Inconsistent With The

Decisions Of This Court Defining The Scope Of

Immunity Under The Speech Or Debate Clause... 12

2. This Case Presents An Important Question Of

Constitutional Law Which Has Not Been, But

Should Be, Settled By This Court —.....0200000000002.... 15

3. The Decision Below Contains Inconsistencies

Which Are Likely To Confuse Lower Courts

And Thereby Impede The Proper Administra-

ge ae een ps AINA EE vader 16

4. The Decision Below Conflicts With The Deci-

sions Of This Court On The Definition Of ‘‘ Pub-

lic Figures’’ Subject To The Malice Standard

Of New York Times v. Sullivan..............2.....-2--0---- i8

The Decision Below Is Based Upoh Several

Serious Misstatements Of Fact And Therefore

Constitutes A Gross Miscarriage Of Justice...... 21

6. The Decision Below Involves Important Prin-

ciples Of Constitutional Law Having Extra-

ordinary Public Significance -....2..222. eee 24

RSET ERR CRS SE 25

INDEX (Continued)

APPENDIX A — Page

The Complete Opinion Of The United States Dis-

trict Court For The Western District Of Wiscon-

sin Dated April 22, 1977, Including The Appendix

NE acs cece dacs tenreicr epncensilensialienambacaceapibabonamidoneaeslinte 26

APPENDIX B —

The Complete Opinion Of The United States Court

Of Appeals For The Seventh Circuit Dated June

30, 1978, Including The Appendices Thereto............ 68

ili

TABLE OF CITATIONS

Cases Page

Cochran v. Couzens, 42 F. 2d 788 (D.C. Cir. 1930)... 13

Curtis Publishing Company v. Butts, 388 US 130

CI etrsereagearea mecsdacian tical uepaambiceioesene nud 18, 20

Doe v. McMillan, 412 US 306 (1973) 2.0.0... 13, 22, 23

Gertz v. Welch, 418 US°323 (1974) 0. 2, 18, 19, 21

Gravel v. United States, 408 US 606 (1972).......... 12, 13, 14

Kilbourn v. Thompson, 103 U.S. 168 (1881)............ 13

New York Times Company v. Sullivan, 376 US 254

RIF ccess seid ceuisatertbtenarctecesieeeaneacoran casas 18, 19, 20

Powell v. McCormack, 395 U.S. 486 (1969)............ 13

Rosenbloom v. Metromedia, Inc., 403 US 29 (1971) 19, 25

Tenney v. Brandhove, 341 US 367 (1951)... 12,13

United States v. Brewster, 408 US 501 (1972)...... 12-17

United States v. Doe, 455 F.2d 760

Constitutional Provisions

Speech or Debate Clause, Art. I, See. 6, United

ot eee a eee eae Pee 2, 10-17, 22, 24

First Amendment to the United States Constitu-

ECS ie Ce SAE NIA an OUEV Ts ma TOTT ee De 3, 10, 11, 25

—~

IN THE SUPREME COURT OF THE

UNITED STATES

OctToBeR TERM, 1978

Ronatp R. Hutcuinson,

Petitioner,

WituramM ProxMireE and

Morton ScuwartTz,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Petitioner Dr. Ronald R. Hutchinson respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Seventh Circuit entered in this proceeding on June

30, 1978.

OPINION BELOW

The opinion of the Court of Appeals, reported at 579

F2d 1027 (1978), appears in the Appendix hereto, along

with the District Court opinion which is reported at 431

IF’, Supp. 1311 (1977).

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Cireuit was entered on June 30, 1978. A timely petition

for rehearing enZbanc was denied on July 26, 1978, and

this petition for certiorari was filed within 90 days of that

date. This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Are the press releases and newsletters of a member

of Congress entitled to absolute immunity under the

Speech or Debate Clause of the United States Constitu-

tion? .

2. Does a research scientist who has not voluntarily

thrust himself into the vortex of any important public

controversy become a ‘public figure’’ within the meaning

of Gertz v. Welch, 418 U.S. 323 (1974), merely because his

work is publicly funded, his scientific articles are pub-

lished in obseure technical journals, his name occasionally

appears in a small local newspaper and his reply to a Sen-

ator’s attack is printed in various newspapers?

3. Does a defendant’s past pattern of malicious defa-

mation coupled with his awareness of the truth and his ad-

mitted knowledge of the falsity of some of his statements

create a genuine issue of material fact as to the issue of

malice?

CONSTITUTIONAL PROVISIONS INVOLVED

The Speech and Debate Clause of Article I, Section 6 of

the Constitution of the United States:

3 ;

‘‘The Senators and Representatives shall receive’. 7)

Compensation for their Services . . . and for any

Speech or Debate in either House, they shall not be,

questioned in any other Place.”’

The First Amendment to the Constitution of the United

States:

‘Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise there-

of; 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.’’

STATEMENT OF THE CASE

This is a civil action by a research scientist (Dr. Ronald

R. Hutchinson) against a United States Senator (William

Proxmire) and one of the Senator’s administrative aides

(Morton Schwartz), seeking damages for slander, libel,

interference with contractual relations, invasions of pri-

vacy and intentional infliction of mental distress. The ba-

sis for federal jurisdiction is diversity of citizenship. As

explained below, this suit involves a series of allegedly

tortious statements made by the Senator and his aide in

the context of several telephone calls, a press release, vari-

ous press conferences, two newsletters, at least two tele-

vision appearances and at least one radio broadeast.

The Plaintiff in this proceeding, and the Petitioner here-

in, is Dr. Ronald R. Hutchinson, a research scientist hold-

ing several academic degrees including a Ph.D. in experi-

mental psychology from Yale University. Much of Dr.

Hutchinson’s professional career has been devoted to the

study of aggression in humans and animals, including

empirical research into possible techniques for quantita-

tively measuring latent stress and anger. To a large ex-

tent, this research has been facilitated through grants or

contracts from various governmental agencies. It was on

the basis of this funding that Dr. Hutchinson first came

into contact with the Defendants.

In March of 1975, Defendant Proxmire launched a series

of monthly press releases which he labeled ‘‘Golden Fleece

of the Month Awards.’’ Laden with caustic ridicule, sar-

casm, and sardonic wit, these press releases were allegedly

designed to attract nationwide attention to ‘‘the biggest

or most ridiculous or most ironic example of government

waste’’ which Proxmire could find each month. In con-

nection with this monthly publicity program, Proxmire

assigned his aide, Defendant Schwartz, to hunt for likely

targets for the ‘‘Fleece’’.

During the course of his search, Schwartz discovered

that a little-known scientist in Kalamazoo, Michigan had

received government funding for research which involved,

among other things, experiments into the measurement of

latent aggression by recording the electrical impulses in

the jaw muscles of laboratory monkeys under various con-

ditions. Aware of Proxmire’s bias against social scien-

tists, Schwartz decided to focus on Dr. Hutchinson’s re-

search as a possible subject for the monthly Fleece.

As the investigation progressed, the Defendants received

numerous written statements from the funding agencies

explaining the value of Dr. Hutchinson’s work. The state-

ment from the National Aeronautics and Space Admini-

stration (NASA) included the following information:

‘REASON FOR NASA SUPPORT OF

WORK BY DR. R. R. HUTCHINSON

‘““The National Aeronautics and Space Administra-

tion is sponsoring a program of research to develop

improved selection and training methods for crews of

space vehicles. This will be of particular importance

in possible future long-duration manned space flight.

Since crews would be required to live and work to-

gether in confined spaces for long periods of time, it

will be important to choose people who can work to-

gether effectively.

One of the first objectives of this project was to de-

velop measurements of latent anger or aggression in

order to measure the development of interpersonal

hostility in normal people brought into the laboratory.

It was demonstrated that at least one measure, jaw

clenching, may be an appropriate indicator for this

purpose. This technique records the electrical dis-

charges from the jaw muscles (the masseters). With

such recording, an indication of hostility is obtained

apparently even when the person is unaware of any

change in his attitude, and unaware that his jaw

muscles have tightened.’’

NASA also informed the Defendants of certain specific

uses for Dr. Hutchinson’s research in connection with

manned space missions.

The Office of Naval Research (ONR) also furnished the

Defendants with a detailed explanation of the importance

of Dr. Hutchinson’s work. One significant portion of the

report contains the following conclusion:

‘“‘This research has provided the Navy for the first

time with an objective scientific testing system for

measuring and examining aggressive behavior, and

this permits, for example, an evaluation of specific

effects of various pharmaceutical agents on these be-

haviors. Such information could well lead to proce-

dures which would permit control and modification of

aggressive behavior in situations where that behav-

lor would be inappropriate and disruptive..”’

ONR also added a note concerning the cost of Dr. Huteh-

inson’s reach:

‘“‘It should be noted that Dr. Hutchinson’s work was

supported by the Office of Naval Research aver a six-

year period at an average of $34,500 per year for all

costs, including the use of animals and overhead. This

is considered a moderate expenditure by the Navy for

basic research.’’

Another agency statement given to Proxmire and his

staff explained the results of a thorough review of Dr.

Hutchinson’s work:

‘‘All reviewers recognize the value of Hutchinson’s

systematic, quantitative approach to an important re-

search area that has often been plagued by subjective

techniques. There was also general agreement that

Hutchinson is a highly competent, hard-working, and

productive investigator, and that his experiments are

well designed and well executed.”’

In addition to these documents, other evidence of the

nature and worth of Dr. Hutchinson’s research was pro-

vided to Schwartz in the course of his telephone conversa-

tions with various agency officials. As Schwartz has ad-

mitted in sworn testimony, Dr. Woodward, project officer

at ONR, defended Dr. Hutchinson’s work and described it

as ‘‘valid’’ and Dr. Stollnitz, an official at the National

Science Foundation (NSF), emphasized the merit of the

research and told Schwartz that it was ‘‘sound’’. In re-

sponse to Dr. Stollnitz’s supportive statements, Schwartz

criticized the research and misrepresented R. Hutchinson’s

approval rate at the National Institute of Mental Health

(NIMH). ’

Notwithstanding the abundant and uncontroverted evi-

dence that Dr. Hutchinson’s research was ‘‘of particular

importance’’, ‘well designed’’, ‘‘well executed’’, ‘‘valid’’,

‘‘sound’’, and a ‘‘moderate expenditure’’, the Defendants

drafted a caustie press release in anticipation of ‘‘fleec-

ing’’ Dr. Hutchinson’s work. The release contained sev-

eral statements which Dr. Hutchinson contends were false

and defamatory, including some statements the falsity of

which has been admitted by the Defendants. For example,

although both Defendants admittedly knew the statement

to be false, the press release charged that Dr. Hutchinson

had personally received a half million dollars in research

funds and had thereby ‘‘made a fortune from his mon-

keys.’’ In similar fashion, the release charged that Dr.

Hutchinson’s projects had been ‘‘perhaps duplicative,”’

even though the only information in the Defendants’ pos-

session with respect to possible duplication was a state-

ment by Dr. Stollnitz of NSF that an agency study had

compared Dr. Hutchinson’s projects and specifically found

‘no overlap.”’

The release also mischaracterized the nature of Dr.

Hutchinson’s research and ridiculed both the doctor and

his work. Focusing this ridicule on the fact that Dr. Hutch-

inson’s experiments had involved measurements of jaw

clenching as an indicator of latent aggression in laboratory

monkeys, Proxmire accused Hutchinson of taking a ‘‘bite’’

out of the taxpayers, and he summarized seven full years

of Dr. Hutchinson’s scientific research as mere ‘‘monkey

business’’ and ‘‘nonsense’’ which was ‘‘transparently

worthless’? and which had ‘‘made a monkey out of the

American taxpayer.’’ (The complete text of the press re-

lease is contained in Appendix A to the Court of Appeals’

decision).

After the proposed release was drafted, Schwartz called

Dr. Hutchinson and read it to him. Although Dr. Huteh-

inson vigorously objected to the release as inaccurate and

misleading, it was nevertheless submitted to the Senate

Service Department on April 15, 1975 for release to 275

members of the news media, including CBS, NBC, ABC,

the major wire services, major newspapers and maga-

zines, and also such purveyors of the news as the National

Inquirer. As a result, the release was widely distributed

and receivéd considerable attention across the nation.

Three days later, after the press release had already re-

ceived nationwide publicity, Proxmire took a copy of sub-

stantially the same statement to the Senate and either

handed it te the Clerk for insertion into the Congressional

Record or read it on the Senate floor. Proxmire is not

certain which method he used for entering the press release

into the Record.

Later in May of 1975, Proxmire mailed a newsletter to

approximately 100,000 people repeating the substance of

his press release and further ridiculing Dr. Hutchinson

and his work. This newsletter also stated that Proxmire

was pressuring various government agencies to terminate

their suppoprt of Dr. Hutchinson’s research:

‘I’ve told these government agencies it’s time to get

out of this ‘monkey business’ and put an end to worth-

less studies be they scientific or social.’? (The com-

plete text of this newsletter is contained in Appendix

B to the Court of Appeals’ decision.)

In addition to his written statements, Proxmire also ridi-

culed Dr. Hutchinson on the Bob Barry radio program in

Milwaukee (6/17/75), the nationally syndicated Mike Doug-

las television show (11/24/75) and on at least one other

television broadcast. During his appearance on the Mike

Douglas show, Proxmire described the funding of Dr.

Hutchinson’s research as ‘‘terrible’’ and noted that it was

one of ‘‘the most outrageous examples of wasteful extrava-

gant stupid spending.’’

During the time that Proxmire’s various statements

were being published throughout the country, his aide

Morton Schwartz, was actively contacting the agencies

which had supported Dr. Hutehinson’s work and urging

them to cut off funding. During several of these telephone

calls, Schwartz misrepresented the facts concerning Dr.

Hutchinson and his research. For example, he ealled Dr.

Stollnitz at NSF and falsely stated that Dr. Hutchinson

had been terminated from his research position for mis-

management of funds. He also called Dr. Krasnegor at

the National Institute of Drug Abuse (NIDA) and false-

ly stated that ‘‘NSF, ONR and NASA were all dropping

support of Dr. Hutchinson’s work.’’ In addition, Schwartz

called Dr. Pollin at NIDA and reminded him that NIDA

had not yet received a Golden Fleece. Although Schwartz

contends that this ‘‘reminder’’ was merely a joke, Dr.

Hutchinson contends that it constituted an implicit threat.

During at least one of his agency calls, Schwartz was. by

his own admission, ‘‘hostile,’’ ‘upset’? and ‘fangry.”’

Finally, in February of 1976, the Defendants issued a

second newsletter of relevance to this case. The news-

letter was entitled ‘‘Did the Golden Fleece Get Results?”?

and mentioned several projects which Proxmire had

fleeced. Under the heading ‘‘Successes,’’ Proxmire claimed

credit for cutting off Dr. Hutchinson’s funding and stop-

ping his research, as follows:

‘fAll the studies on why monkeys clench their jaws

were dropped. No more monkey business.’’

It is Dr. Hutchinson’s contention that the above-de-

scribed conduct caused severe injury to his reputation,

physical illness, mental distress, and substantial loss of

existing and prospective economic advantage. As a result,

he filed a Complaint in the United States District Court for

the Western District of Wisconsin on April 16, 1976. When

the presiding Judge of that District disqualified himself,

Judge Leighton of the Northern District of Illinois was

designated to hear the case on behalf of the Western Dis-

trict of Wisconsin.

As indicated by the record in this ease, the parties have

filed numerous motions concerning jurisdiction, venue, ex-

tensions of time, amendment to pleadings, answers to in-

terrogatories and production of documents. For purposes

of this petition, however, the only relevant motion was the

motion filed by Defendant Proxmire on July 6, 1976 de-

manding dismissal or, in the alternative, summary judg-

ment. This motion. was based on claims of an absolute

privilege under the Speech or Debate Clause (US Const.,

Art. I, §6), a qualified privilege under the First Amend-

ment, and the alleged absence of any genuine issue of mate-

rial fact justifying a trial on merits.

Although no hearing was ever held on this motion, the

issues were addressed by the parties in detailed briefs

supported by a total of 204 exhibits. After these doeu-

ments were filed, the Trial Judge issued an Order on De-

cember 23, 1976 announcing that he intended to grant sum-

mary judgment in favor of Defendant Proxmire, but ex-

plaining that he would not enter a final order until a

memorandum opinion had been filed. Then, on January 27,

1977, the Trial Judge ordered that the time for filing his

memorandum be extended. The anticipated memorandum

opinion was eventually issued on April 22, 1977 along with

a ‘‘Ruling on Motion for Summary Judgment’ stating

that summary judgment had been entered in favor of De-

fendant Proxmire. Although the opinion was not entire-

ly clear, the trial court apparently ruled that all of Prox-

mire’s conduct was privileged under the Speech or Debate

Clause and the First Amendment and also that there was

no genuine issue of material fact justifying a trial on the

merits. Dr. Hutchinson then filed a timely notice of ap-

peai and Cause No. 77-1677 was docketed in the United

States Court of Appeals for the Seventh Circuit.

With respect to the Co-Defendant (Morton Schwartz),

who had not joined in the original motion for summary

judgment, the trial court served notice that the suit against

the Senator’s aide would be dismissed on the Court’s in-

itiative unless Dr. Hutchinson made a showing within 30

days that such dismissal should not be ordered. Accord-

ingly, the parties filed various briefs and several new ex-

hibits and, on June 22, 1977, the Trial Judge issued a ‘‘Mi-

nute Order’? dismissing the suit against Defendant

Schwartz. No explanatory opinion was filed with the ‘‘Mi-

nute Order’? and, on July 7, 1977, the Clerk of the United

States District Court for the Western District of Wiscon-

sin entered a judgment dismissing the action.

Dr. Hutchinson then filed a second notice of appeal to

cover the judgment regarding Defendant Schwartz, and

the same was docketed in the Seventh Cireuit as Cause No.

77-1755. On Dr. Hutchinson’s motion, the two appeals

were consolidated on July 29, 1977.

Following the appropriate briefing and oral argument,

the Court of Appeals entered a judgment on June 30, 1978,

affirming the summary judgment and dismissal granted by

the District Court. The grounds for the Appellate Court

decision, however, were somewhat different than those ex-

pressed in the District Court opinion. Specifically, the

Court of Appeals extended Speech or Debate immunity to

the Defendants’ press release and newsletter, but rejected

the District Court’s application of such immunity to the

Defendants’ phone calls, television appearance and radio

interviews. These calls, appearances and interviews were

held to be privileged under the First Amendment because,

according to the Seventh Cireuit, Dr. Hutchinson was a

public figure and the Defendants had acted without malice.

Doctor Hutchinson was deemed to be a publie figure be-

cause his research was publicly funded, he had published

some scientifie articles in obscure technical journals, his

name had occasionally appeared in a small local newspaper

and his response to Proxmire’s press release was quoted in

various newspapers.

On the issue of malice, the Court of Appeals found that

at least some of the Defendants’ statements may have been

defamatory falsehoods, but that the Defendants were im-

mune from liability because they were supposedly unaware

of the actual or probable falsity of their statements. The

court never specifically addressed the affidavits concern-

ing the Defendants’ past pattern of malicious defamation

or the depositions wherein the Defendants admitted having

prior knowledge of the falsity of some of their statements.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Is Inconsistent With The Decisions

Of This Court Defining The Scope Of Immunity Under

The Speech Or Debate Clause.

The Speech or Debate Clause, US Const. Art. I §6 creates

a constitutional privilege which immunizes United States

Senators and Representatives from liability for state-

ments made in the course of their deliberations as legisla-

tors. An analysis of the applicable precedent defining the

scope of this immunity reveals a definite emphasis on the

legislative/deliberative character of the activities to be

protected. It has been uniformly held that Speech or De-

bate immunity applies only to those activities which are

‘‘legitimate legislative activities.’’ Gravel v. United

States, 408 U.S. 610 (1972); United States v. Brewster,

408 U.S. 501 (1972); Tenney v. Brandhove, 341 U.S. 367

(1951).

In construing the term ‘‘legitimate legislative activity,’’

this Court has repeatedly emphasized that Congressional

conduct is not immune merely because it is related to the

legislative process:

‘*In no case has this Court ever treated the Clause as

protecting all conduct relating to the legislative pro-

cess. In every case thus far before this Court the

Speech and Debate Clause has been limited to an act

which was clearly a part of the legislative process —

the due functioning of the process.’’ United States v.

Brewster, 408 U.S. 501, 515-516.

To be deemed ‘‘legitimate legislative activity,*’ conduct

must be necessary to Congressional deliberations:

‘‘(T]he courts have extended the privilege to matters

beyond pure Speech or Debate in either house, ‘only

when necessary to prevent indirect impairment of

such deliberation.’ United States v. Doe, 455 F.2d

at 760.’? Gravel v. United States, 408 at 625.

This limited category of deliberative activity has been

held to include official resolutions, committee reports, vot-

ing and, of course, actual speeches and debates on the floor

of Congress. Kilbourn v. Thompson, 103 U.S. 168 (1881) ;

Powell vy McCormack, 395 U.S. 486 (1969) ; Cochran v. Cou-

gens, 42 F. 2d 788 D.C. Cir. (1930) ; Tenney v. Brandhove,

341 U.S. 367 (1951); Gravel v. United States, 408 U.S. 606

(1972) ; Dee v. McMillan, 412 U.S. 306 (1973). Many other

Congressional activities, while entirely legitimate, are nev-

ertheless not sufficiently legislative in character to be im-

mune from normal legal constraints. United States v.

Brewster, supra, at 512. The standard for applying the

Speech or Debate Clause is neither legitimacy nor relation-

ship to legislative activity, but rather the actual delibera-

tive nature of the conduct itself:

‘*Legislative acts are not all-encompassing. The heart

of the Clause is speech or debate in either House. In-

sofar as the Clause is construed to reach other mat-

ters, they must be an integral part of the delibera-

tie and communicative processes by which members

participate in commiittee and House proceedings with

respect to the consideration and passage or rejection

of proposed legislation or with respect to other mat-

ters which the Constitution places within the jurisdie.

tion of either House.’’ Gravel v. United States, 408

US at 625. (Emphasis Added)

In the instant case, the Court of Appeals has apparently

declined to follow the rules enunciated by this Court. In

its decision below, the Court of Appeals has held that the

Defendants’ press release and newsletters were entitled to

absolute immunity under the Speech or Debate Clause, even

though such political publications are clearly not ‘‘an inte-

gral part of the deliberative and communicative processes

by which members participate in committee and House pro-

ceedings,’’ as required by this Court. Gravel v. United

States, supra, at 625.

Furthermore, the decision below directly conflicts with

the following statement of Mr. Chief Justice Burger, speak-

ing for a majority of this Court in United States v. Brew-

ster, supra:

‘It is well known, of course, that Members of the

Congress engage in many activities other than the

purely legislative activities protected by the Speech

or Debate Clause. These include a wide range of legit-

imate ‘errands’ performed for constituents, the mak-

ing of appointments with government agencies, assist-

ance in securing government contracts, preparing so-

called ‘newsletters’ to constituents, news releases,

speeches delivered outside the Congress. The range

of these relatec activities has grown over the years.

They are performed in part because they have be- .

come to be expected by constituents and because they

are a means of developing continuing support for fu-

ture elections. Although these are entirely legitimate

activities, they are political in nature rather than leg-

islative, in the sense that term has been used by the

Court in prior cases. But it has never been seriously

contended that. these political matters, however ap-

propriate, have the protection afforded by the Speech

or Debate Clause.’’ United States v. Brewster, supra,

at 512 (Emphasis added)...

The inconsistency between the above-cited language and

the decision below is patently obvious. Mr. Chief Justice

Sennen tt

Burger, speaking for this Court, has specifically stated

that newsletters and press releases are not entitled to ab-

solute immunity under the Speech or Debate Clause, where-

as the Court of Appeals in the instant case has specifically

held to the contrary. In light of this conflict a Writ of

Certiorari is clearly appropriate.

2. This Case Presents An Important Question Of Con-

stitutional Law Which Has Not Been, But Should Be.

Settled By This Court.

As noted in the previous section, the decision below di-

rectly conflicts with the language of this Court in United

States v. Brewster, supra at 512. Technically, however, the

cited language from the Brewster decision is only dicta,

rather than binding precedent. Consequently, this Court

has never specifically decided the important issue of wheth-

er Congressional press releases and newsletters are en-

titled to absolute immunity under the Speech or Debate

Clause.

In their arguments below, the Defendants have consist-

ently maintained the position that the dicta in Brewster

is neither accurate nor binding nor helpful in the resolu-

tion of this significant public question. By combining vari-

ous statements from a number of related Supreme Court

decisions, the Defendants have argued, and apparently con-

vineed the Seventh Cireuit, that the dicta in Brewster

misrepresents the current position of a majority of the

Justices of this Court. According to the Defendants, a

‘““new majority’’ of this Court has formed since the Brew-

ster decision in 1972 and, consequently, the same political

press releases and newsletters which were so clearly out-

side the Speech or Debate Clause in that year are now

fully cloaked in absolute immunity.

Although Dr. Hutchinson has vigorously disputed the

Defendants’ convoluted arguments, it is apparent from the

decision below that the Seventh Circuit has accepted the

Defendants’ position. If the Defendants are correct that

this Court has formed a ‘‘new majority’’ which has com-

pletely rejected its earlier position in Brewster, then it is

appropriate that this radical change in the law be clearly

enunciated by the Supreme Court, rather than intimated

by a Court of Appeals. If, on the other hand, this Court

has not reversed its position on the scope of the Speech

or Debate Clause, then it should reverse the Seventh Cir-

cuit in order to maintain uniformity in the decisions on this

issue. In either event, this Court should grant the in-

stant Petition for Writ of Certiorari so that this im-

portant question of constitutional law can be directly con-

sidered and decided by this Court.

3. Decision Below Contains Inconsistencies Which Are

Likely To Confuse Lower Courts And Thereby Impede

The Proper Administration Of Justice.

There are at least two inconsistencies in the Court of

Appeals’ decision which are likely to confuse other courts

unless these matters are clarified by this Court. The first

inconsistency involves three separate: statements by the

Court of Appeals which, when read together, are apparent-

ly irreconcilable.

On page-four of the decision below, the Court of Appeals

correctly cites the well-recognized principle that Speech

or Debate immunity is limited to ‘‘legitimate legislative

activities.’ On page six of its opinion, the Court of Ap-

peals correctly characterizes the so-called ‘informing

function’’ of Congress as a ‘‘non-legislative’’ activity.

Then, on page ten of its opinion, the Court of Appeals ex-

tends Speech or Debate immunity to the informing fune-

tion. In other words, the Court of Appeals has set forth

an erroneous syllogism, as follows:

1. Only legislative activities are immune.

2. The informing function is a non-legislative ac-

tivity.

3. The informing function is immune.

The Court of Appeals’ conclusion defies logic and its

three statements are inherently contradictory. As a re-

sult, the decision below fails to provide adequate guidance

to lower courts and is likely to create confusion as to the

true status of the informing function.

Another example of an apparent inconsistency in the

Court of Appeals’ decision is found in its decision re-

garding the application of the Speech or Debate Clause

to the Defendant’s television and radio interviews. In its

one-paragraph discussion of this issue, the Court of Ap-

peals relies entirely on a citation to page 512 of the deci-

sion in United States v. Brewster. Based on that citation,

the Court of Appeals correctly concludes that such tele-

vision and radio interviews are not entitled to absolute

Speech or Debate immunity.

Although the text at page 512 of the Brewster decision

does, in fact, clearly indicate that television and radio ap-

pearances are outside the scope of the Speech or Debate

Clause, it is exactly the same passage in Brewster which

specifically states that press releases and newsletters are

similarly outside the scope of immunity. Since the Court

of Appeals earlier rejected the language on page 512 as "

being inaccurate and unpersuasive dicta, it is clearly in-

consistent for the Court to then rely upon precisely the

same passage as the sole support for its decision regard-

ing the television and radio interviews.

If the decision below is allowed to stand, the above-cited

inconsistencies will create uncertainty and confusion re-

garding the proper scope of Speech or Debate immunity.

Therefore, a Writ of Certiorari should be issued in this

matter.

I ROLEEOESSSSSSSSSS SSE OCT TTT

4. The Decision Below Conflicts With The Decisions Of

This Court On The Definition Of “Public Figures”

Subject To The Malice Standard Of New York Times

v. Sullivan.

In the decision below, the Court of Appeals applied the

malice standard of New York Times Company v. Sullivan,

376 US 254 (1964), after concluding that Dr. Hutchinson

was a ‘‘publie figure’? under Curtis Publishing Company

v. Butts, 388 US 133 (1967) and its progeny. A careful

analysis of the Court of Appeals’ decision, however, re-

veals that it is in conflict with the decisions of this Court

regarding the proper definition of the term ‘public fig-

ure,’’

In defining the class of ‘‘ public figures’? who must dem-

onstrate ‘‘actual malice’’ (i.e., knowing falsity or reckless

disregard of the truth), this Court has enunciated the fol-

lowing rule:

‘‘For the most part, those who attain this status [i.e.,

public figures] have assumed rules of especial promi-

nence in the affairs of society. Some occupy positions

of such persuasive power and influence that they are

deemed public figures for all purposes. More com-

monly those classed as public figures have thrust

themselves to the forefront of a particular public con-

troversy in order to influence the resolution of the is-

snes involved. In either event, they invite attention

and comment.’’ Gertz v. Welch, 418 US 323 (1974).

In the instant case, it is undisputed that Dr. Hutchinson

did not assume any role of especial prominence in the af-

fairs of socitty and it is obvious that he never thrust him-

self to the forefront of any particular publie controversy

in order to influence the resolution of the issues involved.

Consequently, Dr. Hutchinson is not a publie figure as that

term has been defined by this Court. The Court of Ap-

peais, however, found that Dr. Hutchinson was « public fig-

ure because his research work was publicly funded, his

scientific articles were publisiied in obscure technical jour-

nals, his name occasionally appeared in a small local news-

paper and his reply to the Defendants’ press release was

printed in various newspapers. In basing its decision on

these factors, the Court of Appeals has essentially re-

jected the standards enunciated in Gertz v. Welch, supra,

and resurrected the discredited standard of Rosenbloom v.

Metromedia, Inc., 403 US 29 (1971).

In Rosenbloom, a plurality of this Court expressed the

opinion that the New York Times test applied to any ‘‘pri-

vate person involved in a matter of public interest.’? This

standard, however, was specifically rejected in Gertz v.

Welch, supra, where this Court concluded that:

‘‘The extension of the New York Times test proposed

by the Rosenbloom plurality would abridge this legiti-

mate state interest to a degree that we find unaccept-

able.’’

Thus, under Gertz, it is clear that a private individual

such as Dr. Hutchinson does not become a public figure

merely because his research is publicly funded.

It was equally contrary to the Gertz standard for the

Court of Appeals to elevate Dr. Hutchinson to the status

of a public figure merely because his scientific articles

were published in obscure technical journals and his name

occasionally appeared in a small local newspaper. In the

Gertz case, the Plaintiff-Petitioner was described as fol-

lows:

‘*Petitioner has long been active in community and

professional affairs. He has served as an officer of

local civil groups and of various professional organi-

zations, and he has published several books and arti-

cles on legal subjects. Although Petitioner is conse-

quentiy well-known in seme circles, he has achieved

no general fame or notoriety in the community. ’’

SESE aan

From this description, it is clear that Mr. Gertz enjoyed

greater prominence than Dr. Hutchinson and yet this

Court specifically held that it was ‘‘plain that petitioner

was not a public figure.’’ Obviously, the Court of Appeals

in the instant case has applied a different standard in de-

termining that Dr. Hutchinson’s limited publications made

him a public figure. The articles which he published were

all printed in obscure technical journals which received

little or no public attention. Furthermore, the so-called

‘‘stories’’ which appeared in ‘local papers’’ were all

printed in one small Kalamazoo newspaper and normally

consisted of one or two paragraph routine announcements

inconspicuously printed in the back pages of the paper

among the obituaries and the want ads. If this type of

‘press coverage’’ is sufficient to satisfy the ‘*publie fig-

ure’’ standard, as the Court of Appeals has held, then the

rigorous standard of New York Times v. Sullivan must

necessarily apply to every eagle scout, accident victim or

club secretary whose name is ever printed in a newspaper.

This conclusion, although mandated by the Court of Ap-

peals’ decision, is clearly contrary to the standards enunci-

ated by this Court.

The final factor mentioned by the Court of Appeals in-

volved the fact that Dr. Hutchinson’s reply to Proxmire’s

press release was printed in various newspapers. Accord-

ing to tha Court of Appeals, Dr. Hutchinson’s denial of the

Defendant ’s statement satisfied the requirement that a pub-

lic figure\have ‘‘sufficient access to the means of counter-

argument to be able to expose through discussion the false-

hood and fallacies of the defamatory statements.’’ Curtis

Publishing Company v. Butts, supra, at 155. The Court of

Appeals conveniently overlooks the fact that Dr. Hutchin-

son was unable to respond on the Mike Douglas Show, the

Bob Barry Show, or in a Congressional newsletter. Ap-

parently, the Court of Appeals believes that any person

ns cs

who is defamed automatically becomes a public figure if

his denial is mentioned by the press. If this standard is

accepted, however, virtually anyone who is ever publicly

defamed by a United States Senator will automatically

become a public figure. This will occur not by virtue of

the victim’s status, but by virtue of the persuasive power

and influence of the person making the defamatory state-

ments. Thus, the Court of Appeals’ decision has basically

turned Gertz on its head and adopted a completely differ-

ent definition of the term, public figure.

In Gertz v. Welch, supra, this Court limited public fig-

ure status to the type of person who has ‘‘voluntarily ex-

posed himself to increased risks of injury from defama-

tory falsehoods.’’ This Court should uphold that re-

strictive definition of public figure status and should grant

the instant petition in order to eliminate the conflict be-

tween its decisions and the decision below.

5. The Decision Below Is Based Upon Several Serious

Misstatements Of Fact And Therefore Constitutes A

Gross Miscarriage Of Justice.

Certain critical portions of the-Court of ‘Appeals’ deci-

sion in the instant case are based upon erroneous factual

assumptions. For example, in deciding whether this ease

presents a serious question of material fact as to the is-

sue of malice, the Court of Appeals stated that ‘‘Defend-

ants’ exhibits include correspondence from agencies which

criticize Plaintiff’s research technique and project costs.

(Defendants’ Exhibit 90).’’ This statement is undeniably

false. In fact, Defendants’ Exhibit 90 is a letter from the

National Institute of Mental Health concerning a research

proposal. The agency concluded that “‘the quality of the

proposal was far below that of [Dr. Hutchinson’s] pub-

lished work,’’ and therefore declined to fund that particu-

lar proposal. No actual research was ever discussed or

criticized in this agency letter.

This factual error is significant because the Court of Ap-

peals relies upon Defendants’ Exhibit 90 to demonstrate

that the Defendants were faced with conflicting evidence

concerning the quality of Dr. Hutchinson’s work. Since

Defendants’ Exhibit 90 did not criticize any of Dr. Hutch-

inson’s actual research, it is clear from the other exhibits

and from the Defendants’ depositions that the Defendants

were not faced with conflicting evidence concerning the

quality of Dr. Hutchinson’s work but, on the contrary, were

in possession of voluminous documents, all of which in-

dicated the falsity of the Defendants’ statements. Since

the Defendants have admitted their awareness of these doc-

uments and have admitted spending a substantial amount

of time reviewing these documents prior to issuing their

defamatory statements, it appears that there is, at a min-

imum, a genuine issue of material fact as to whether the

Defendants acted in reckless disregard of the truth con-

tained in the agency documents. Since the Court of Ap-

peals’ decision on this matter was based upon the errone-

ous assumption of a divided record, justice mandates that

this case be reversed and remanded. :

Another misstatement of fact in the Court of Appeals’

decision appears in that Court’s discussion of the Defend-

ants’ press release. There, the Court of Appeals correct-

ly notes that Doe v. McMillan, 566 F.2d 713 (D.C. Cir.

1977), Cert. 98 S. Ct. 1607 (1978) extended Speech or De-

bate immunity only to the ‘limited distribution’’ of mate-

rials ‘‘within the legitimate needs of the Congress.’’ Af-

ter stating that correct rule, however, the Appellate Court

committed gross error in finding that the instant case in-

volved ‘‘the limited facilitation of press coverage.’’ Con-

trary to the Court of Appeals’ ascertion, it is undisputed

that the press coverage of the Defendants’ new release was

far from limited. The Defendants’ release was submitted

to two hundred and seventy-five members of the news me-

dia, including CBS, NBC, ABC, all the major wire serv-

ices, all the major newspapers and magazines, and even

the National Inquirer, This wide-spread distribution

stands in stark contrast to the limited distribution protect

in Doe v. McMillan, supra, where the court specifically

noted that ‘‘no attempt [was] made to eall attention to

the report or its contents.’ Here, virtually every conceiv-

able attempt was made to call attention to Proxmire’s press

release through the use of television appearances, radio

interviews, newsletters, ete. It is certainly a gross inac-

curacy to refer to this conduct as ‘‘the limited facilitation

of press coverage.”’

Still another serious misstatement of fact in the Court

of Appeals’ decision appears on page 13 where the Court

concludes that ‘‘there is no question that Defendant did

not have knowledge of the actual or probable ‘falsity’ of

their statements.’’ This statement is directly contrary to

the evidence in this case. On pages 15 and 21 of Defend-

ant Proxmire’s deposition, he admits having actual know]l-

edge that the federal funds in question were not paid di-

rectly to Dr. Hutchinson as he falsely stated in his press

release. He further admits actual knowledge that the in-

stitutions receiving the funds, and not Dr. Hutchinson, had

control over the expenditure of these grants. Likewise, on

page 63 and 96 of his deposition, Defendant Schwartz has

admitted having actual knowledge, prior to the issuance

of the press release, that his statement concerning pay-

ments to Dr. Hutchinson was false. Moreover, Dr. Hutch-

inson presented various affidavits demonstrating that the

Defendants had actual or probable notice of the falsity of

their statements prior to the time of publication. In light

of these facts, the above-quoted statement of the Court of

Appeals is clearly erroneous.

Since the misstatements cited in this section concern

facts critical to the decision of this ease, it would be mani-

festly unjust to allow the Court of Appeals’ decision to

stand. In order to prevent this gross miscarriage of jus-

tice, the instant petition for Writ of Certiorari should be

granted and this Court should summarily vacate the judg-

ment below and remand the case for further consideration.

6. The Decision Below Involves Important Principles Of

Constitutional Law Having Extraordinary Public Sig-

nificance.

The instant case is of exceptional importance because it

has attracted wide-spread public attention and because it

concerns significant constitutional issues of the highest

order which directly affect the rights of American citizens

to seek judicial redress for tortious injuries inflicted upon

them by members of Congress.

If the decision below is not considered and reversed, its

broad extension of Speech or Debate immunity could have

a profound impact on our society. For example, it could

give an overwhelming political advantage to all incum-

bent candidates by enabling them to maliciously defame

their opponents with total impunity. The door would be

opened to political character assassination with the simple

proviso that all such attacks be printed in the form of a

press release or a newsletter.

In the absence of potential liability for defamation, there

would be no effective legal deterrent against the intentional

publication of defamatory falsehoods by members of Con-

gress. As knowledge of this absolute immunity becomes

known to average citizens, it would be logical to expect

that the public credibility of members of Congress would

be substantially eroded. These are only some of the po-

tential ramifications of the Court of Appeals’ decision in

the instant case.

With respect to the First Amendment issue, the decision

Lelow, if allowed to stand, could signal a return to the pre-

viously rejected standard of Rosenbloom v. Metromedia,

supra and, consequently, a serious infringement on the

legitimate state interest in the protection of reputation.

The extraordinary constitutional significance and public

importance of these issues clearly demonstrates a compel-

ling need for review by this Court.

CONCLUSION

For the foregeing reasons, Dr. Ronald R. Hutchinson

hereby respectfully prays that his petition for Writ of

Certiorari be granted.

Respectfully submitted,

Fraser TREBILCOCK Davis & Foster

Attorneys for Petitioner

By:

Michael E. Cavanaugh

David E.S. Marvin

Business Address: ’

1018 Michigan National Tower

Lansing, Michigan 48933

Telephone: 517/372-0235

Dated: October 19, 1978

APPENDIX A — Opinion Of The United States District

Court For The Western District Of Wis-

consin Dated April 22, 1977.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

(Before the Honorable George N. Leighton,

United States District Judge, Northern District of Illinois,

sitting by designation)

RonaLp R. Hutcuinson,

Plaintiff,

Vs. 76-C-257

Witu1amM Proxmire and Morton

ScHwarktTz,

Defendants.

MEMORANDUM

This is a suit by a research scientist against a United

States Senator, and one of his administrative assistants,

seeking eight million dollars in damages for alleged slander,

libel, malicious interference with contractual relations,

malicious conduct or conduct with grossly negligent disre-

gard for the truth, invasion of rights to privacy, and

intentional infliction of emotional anguish. Jurisdiction is

invoked under 28 U.S.C. §1332(a)(1). When this suit was

filed the presiding district judge recused himself, and this

court was appointed to sit by designation.

Thereafter, the United States Senator moved, in the al-

ternative; for summary judgment. Therefore, the question

to be decided is whether the motion, pleadings, depositions,

exhibits, and affidavits disclose there is no genuine issue

of material fact and that movant is entitled to judgment as

a matter of law. However, to answer this question, this

court must resolve three issues. 1. Whether the investi-

gative activities of the United States Senator in connection

with his duties as a member of Senate subcommittees were

privileged, 2. Whether a press release issued by the United

States Senate Service Department and containing the sub-

stance of a Senate floor speech by the United States Sena-

tor was privileged under the speech or debate clause of the

United States constitution. 3. Whether the statements

made by the United States Senator to his constituents and

in a television appearance were libelous or defamatory.

The material facts are as follows.!

Il.

The plaintiff, Dr. Ronald R. Hutchinson, is a research

scientist, president of the Foundation for Behavioral Re-

search, a non-profit organization, former director of re-

search at Kalamazoo State Hospital, Fort Custer State

Home, and former adjunct associate professor of psychol-

ogy at Western Michigan University. From 1966 to 1975,

he directed research projects under federal grants from the

National Aeronautics and Space Administration (NASA),

' This court acknowledges the invaluable assistance of Ms.

Emily Nicklin, a third year student at the University of

Chicago Law School, who did the underlying research,

analysis of the cases, and the preliminary papers for this

Memorandum. The caliber of her work reflects the high

standards that characterize American legal education and

the ability of the young men and women who are preparing

to enter our profession.

the National Institute for Mental Health (NIMH), the Na-

tional Institute for Drug Abuse (NIDA) and the Office of

Naval Research (ONR). These projects were investiga-

tions into various aspects of animal and human aggression.

Defendant William Proxmire is the senior United States

Senator from Wisconsin. Among his congressional duties

is service on subcommittees of the Senate Committee on

Appropriations which have jurisdiction and review of

budget and appropriations for ONR, NASA, NSF, NIDA,

and NIMH. As a member of these subcommittees, he votes

on appropriations for government obligations and makes

recommendations regarding expenditures. Defendant Mor-

ton Schwartz is Senator Proxmire’s administrative as-

sistant in legislative matters. His duties included research

into efficiency in domestic government spending so that he

could make recommendations to his superiors on the de-

sirability of particular appropriations.

Karly in 1975, Senator Proxmire directed his staff to

gather information on wasteful government spending and

provide him with at least one example each month so he

could dramatize it, call it to the attention of his colleagues,

and thus discourage it. To this end, while speaking on the

Senate floor in March, 1975, he established what he called

the ‘‘Golden Fleece of the Month Award,” a program

through which he made monthly announcements of waste-

ful government spending identified by his staff. These

announcements were routinely accompanied by a press re-

lease. publicizing his selection for the award.

The Senate Service Department, under the Senate Ser-

geant-at-Arms, duplicates and distributes senatorial press

releases after reviewing them for conformity with Senate

regulations governing use of the mailing frank. Senator

Proxmire’s office routinely supplies the Service Depart-

ment with a copy of a proposed release and a list of dis-

tributees composed at the Senator’s direction with the view

toward conveying information to his constituents, to in-

terested segments of the news media, and his colleagues,

either directly or through their constituents. Senator Prox-

mier established and approved the procedure by which his

news releases were sent to the Senate Service Department

for duplication and distribution.

In March 1975, Mr. Schwartz learned of Dr. Hutchinson’s

research from Dr. D. Greenburg, editor of a social science

publication who had read of plaintiff’s work in N TIS, a

weekly abstract of government studies and publications.

The NTIS abstract referred to two publications by NASA

giving details of Dr. Hutchinson’s research, both of which

Mr. Schwartz subsequently obtained by mail from NASA’s

Congressional Liaison Officer, Mr. William Allen. The

NASA publications cited other research conducted by plain-

tiff with grants from ONR, NSF, and the Michigan State

Department of Mental Health. Mr. Schwartz contacted

ONR and NSF seeking information concerning this re-

search. He spoke with Dr. Robert Woodward of ON R and

Mr. Richard Wilson, Congressional Liaison Officer for

NSF, inquiring into their reasons for supporting Dr. Huteh-

inson’s projects. At all times, he identified himself as a

member of Senator Proxmire’s staff. Mr. Schwartz’ review

of the documents he obtained uncovered one grant to the

plaintiff by NIMH, and the additional information that

NIMH had rejected all but one 1962 research application

Dr. Hutchinson had made to that agency. Having decided

that the federal fundings of plaintiff’s research constituted

a potential ‘‘Golden Fleece of the Month Award,’’ Mr.

Schwartz spent appreximately forty hours over a four-week

period reviewing documents and preparing a draft of his

findings. During this time, he contacted various state and

federal agencies to inquire about the structure of the fund-

ings and to determine their justification.

On or about April 11, 1975, defendant Schwartz tele-

phoned NIMH, and was informed by Mr. Joseph Bracket

that other than an expired 1962 grant, plaintiff’s research

had not been funded by that agency. After this inquiry,

Dr. Hutchinson received from NIMH aii $11,554 three-year

- grant commencing on June 1, 1975. Three days later, Mr.

Schwartz made telephone calls to various agencies. He

contacted the Michigan State Department of Mental Health

to inquire about the structure of plaintiff’s state fundings.

He telephoned NIDA where he was informed that it did not

fund any of plaintiff’s projects.2 He telephoned Mr. Fred

Stollnitz of NSF and discussed the possibility of that agen-

cy receiving a Golden Fleece of the Month Award for its

part in the funding of plaintiff’s research. Mr. Stollnitz’

telephone log of the conversation reveals that Mr. Schwartz

criticized the NSF funding, stating that plaintiff’s re-

search was obvious and duplicatively funded by ONR; and

that NIMH had not granted plaintiff any funds. On April

15, Mr. Schwartz telephoned Mr. Stollnitz to inform him

that NSF would definitely receive the award and made

comments about what he called Dr. Hutchinson’s ‘‘grants-

manship.’’ ’This having been done, a draft of the ‘Golden

Fleece of the Month Award”’ for April 1975 was prepared

and submitted for review by Senator Proxmire and Mr.

Howard Shuman, another of his administrative assistants.

After some editing, the award draft was finalized and ap-

proved. A copy of the news release concerning the award

2 Since the Golden Fleece Award was given to agencies

funding plaintiff’s research, he has received at least three

federal grants: from NASA for one year commencing

February 1, 1976, in the sum of $25,000; from NIDA for

six months commencing May 30, 1975, in the sum of $54,800;

and from NIMH for three years commencing June 1, 1975,

in the sum of $11,554.

was sent to the Senate Service Department by Mr. Shuman

on April 15 for release on the morning of April 18, 1975.3

On or about April 15, Mr. Schwartz telephoned Dr.

Hutchinson, told him of the planned Golden Fleece Award,

and read him the text of the press release. Plaintiff ob-

jected because he thought it did not fairly evaluate his work,

‘and that his name was misspelled. As was his custom, Sena-

tor Proxmire made the award the subject of a Senate floor

speech in which he stated that NSF, ONR, and NASA had

spent:

‘falmost $500,000! in the last seven years to determine

under what condition rats, monkeys, and humans bite

and clench their jaws. From the findings of these

studies, it is clear that the government paid a half a

million dollars to find out that anger, stopping smok-

ing, and loud noises produce jaw clenching in people

. All this money went to Dr. Roland [sie] R. Hutch-

inson of Kalamazoo State Hospital in Michigan... .

Dr. Hutchinson’s studies should make the taxpayer

as well as his monkeys grind their teeth. In fact, the

good doctor has made a fortune from his monkeys

and in the process made a monkey out of the Ameri-

can taxpayer .... In view of the transparent worth-

lessness of Hutchinson’s studies .. . it is time we put

a stop to the bite Hutchinson and the bureaucrats who

fund him have been taking out of the taxpayer.’’

$ The release is set out in full as Appendix A to this

Memorandum.

* There are various estimates of how much federal money

plaintiff actually received. Senator Proxmire states that

plaintiff received $910,500; plaintiff says that the sum is

$820,500.

32 33

Dr. Hutchinson has received one grant after another

from various federal bureaucracies to study these

earth shaking problems. He has examined crayfish,

In the next newsletter he mailed to his constituents fol-

lowing the release, Senator Proxmire told them of the

April award. The news item was in the following language : ,

ROMANTIC LOVE STUDIED

Each month I have decided to offer a ‘*golden fleece’’

award to the organization or person who has most ut-

terly wasted your tax dollars.

Last month’s award went to the National Science

Foundation for a study of why people fall in love.

For $84,000 the researchers were supposed to find out

how people grow dependent upon each other in what

they called ‘‘romantie love.’’

Not only is this a question that cannot be answered,

like what is infinity, I’m not sure we want an answer.

There should be some mysteries in life.

A BITE OUT OF YOUR POCKETBOOK

This month the award is shared jointly by the Nation-

al Science Foundation, National Aeronautics and Space

Administration and the Office of Naval Research.

These three organizations have put up $500,000 of your

tax money to reach the astounding conclusion that

people and monkeys clench their jaws when angry or

forced to stop smoking or confronted with loud noise.

In seven years of work by Dr. Ronald R. Hutchinson

of Michigan, your money was used to discover that

people get angry when they feel cheated and they tend

to clench their jaws or even scream and kick. Did you

know that? Did you know that monkeys become angry

when they are given electric shocks? Or that drunk

monkeys do not react as quickly as sober monkeys?

That’s what your taxes paid for!

wasps, boa constrictors, turtles, alligators, opossums,

foxes, pigeons, rats, monkeys and humans to discover

under what circumstances th show signs of being

angry.

TESTS ON ANIMALS

He has ‘‘stimulated’’ the animals by using physical

blows, electric tail shocks, intense heat, brain probing,

air blasts, foot shocks and loud noises. He has influ-

enced them with morphine, tranquilizers, foed, alco-

hol, caffeine and in the case of humans, with money.

He graduated from animals to humans in 1970, That’s

when he began to conclude that humans bite and

clench their jaws under stress. And that when they

feel cheated, they react by screaming and kicking on

occasions. ‘

These studies are continuing and several new propos-

als, if accepted, will mean another $150,000 for this

program.

If this use of your tax money makes you want to kick

and scream or clench your jaws, then join the club.

The good doctor has made a monkey out of the fed-

eral bureaucrats.

I’ve told these government agencies it’s time to get

out of this ‘‘monkey business’ and put an end to

worthless studies be they scientific or social.

If you have any suggestions for my next ‘‘golden

fleece’’ award, please write to me in Washington.

On at least one other occasion, Senator Proxmire men-

tioned plaintiff by name to his constituents and commented

on what he thought was useless research at the expense of

taxpayers. And on the same subject, he made some un-

specified statements to a District of Columbia reporting

firm, contributed to or authored an article in a popular

publication called ‘‘Human Events Magazine”’ and gave an

interview to ‘‘Behavior Today,’’ a journal that publishes

articles on subjects within the spectrum of the behavioral

sciences. In the meantime, either Senator Proxmire per-

sonally, or his assistant Mr. Schwartz, made follow-up in-

-quiries of federal and state agencies concerning their re-

action to the April Golden Fleece of the Month Award,

Then on November 24, 1975, Senator Proxmire appeared

on the Mike Douglas Show, a nationally televised interview

program, and described his ‘‘Golden Fleece of the Month

Award[s].’’? In response to questions, he. gave three ex-

amples; and without naming him, alluded to Dr. Hutchin-

son’s research, saying that one of the awards had been for

‘*...a study that cost $500,000 to find out why people,

rats and monkeys clench their jaws. They found out

they clench their jaws when they were angry, when

they were prodded by sticks, when they were hungry,

and they didn’t clench their jaws as much if they had

been drinking.’’

ITI.

The eomplaint that began this suit, originally in three

counts with a fourth added by amendment, attaches the

April 18, 1975 press release as an exhibit and alleges it

contained untrue statements and omitted others so that the

release incorrectly or falsely summarized studies with the

result that Senator Proxmire, his agents and employees

libeled, slandered and defamed him by implying that he

improperly or illegally profited personally from his gov-

ernmental research grants; that defendants’ telephoning

of various federal agencies and attempting to persuade or

pressure them to terminate existing grants or contracts

for research, prejudiced and prevented plaintiff from ob-

taining other grants or contracts from fedaral agencies in

the future; that Mr. Schwartz in contacting the federal

agencies involved identified himself as Senator Proxmire’s

staff member and uttered or published slanderous, libelous

and defamatory statements which were false regarding

plaintiff and threatened or implied to those agencies that

if they continued funding of plaintiff’s research they would

receive Senator Proxmire’s ‘‘Golden Fleece of the Month

Award’’; that as a result of defendants’ actions, plaintiff

lost research funding from various federal agencies, lost

the respect of his profession, was subjected to humiliation,

held up to publie scorn, suffered extreme mental anguish,

injury to his feelings, physical illness and pain to his per-

son, accompanied by loss of income and ability to’ earn

money in the future; and that defendants’ conduct inten-

tionally violated and infringed plaintiff’s right to privacy,

his right to peace of mind and tranquility, for which con-

duct plaintiff seeks judgment against defendants, jointly

and severally, in the sum of $8,000,000.

Senator Proxmire’s alternative motion for summary

judgment concedes as true the issuance of the press re-

lease, his investigative activities and those of his adminis-

trative assistant, the newsletters to constituents contain-

ing statements about Dr. Hutchinson, and the appearance

in the Mike Douglas television show accompanied by the

statement concerning the Golden Fleece Award for April

1975. The Senator, however, insists that summary judg-

ment in his favor must be entered because the alleged mis-

conduct was legitimate legislative activity and accordingly

absolutely privileged by virtue of the speech or debate

clause of the United States Constitution, article I, section

6. He argues that the conduct falls within the investigative

or informing functions of Congress, and was related to

public contracting and expenditures which are at the heart

of congressional business. He insists that his statements

and criticisms concerning the use of public funds were

privileged under the free speech clause of the First Amend-

ment to the United States Constitution. He says that (1)

Dr. Hutchinson, as a recipient of public funds, was and is

both a public official and a public figure; and (2) there is

no factual basis to support a judgment for the plaintiff in

this case because (a) his statements accurately and truth-

fully reported the public contracting involved; (b) the

record demonstrates an absence of malice; that i is, knowl-

edge of falsity or reckless disregard of the truth; (c) during

his television appearance he did not make any statements

that constituted actionable libel, defamation or slander;

and (d) Mr. Schwartz’ communications with government

officials administering public funds were privileged. The

motion, contention and argument are supported by a well-

documented brief, affidavits, 72 exhibits and references to

depositions,

Dr. Hutchinson meets this motion with counter-affidavits,

96 exhibits, and a well-written brief containing two argu-

ments that raise what is claimed to be material issues of

fact which can only be resolved by a trial. The counter-

affidavits are those of fellow scientists familiar with Dr.

Hutchinson’s work, government evaluations of his re-

search, newspaper articles about the plaintiff, and a number

of scientific papers authored by him. From this, he argues

that the conduct of Senator Proxmire and his administra-

tive assistant was not legitimate legislative activity and

therefore not privileged under the speech and debate clause.

Plaintiff declares that his complaint is not directed at any

speech on the floor of the Senate; it is at the libel by re-

publication contained in the press release of April 18, 1975

that contained in newsletters to the Senator’s constituente,

the allegedly defamatory statement Senator Proxmire made

during the Mike Douglas Show, the comments concerning

plaintiff to news reporters, and conimunications with vari-

ous federal] agencies and their staffs. Dr. Hutchinson ar-

gues for a restrictive application of the speech or debate

clause which, he insists, is mandated by decisions of the

United States Supreme Court in a number of its recent

pronouncements on the subject.

IV.

The speech or debate clause of the federal constitution

provides, in pertinent part, that “‘ ... Senators and Rep-

*resentatives ... for any Speech or Debate in either House,

. shall not be questioned in any other Place.’’ U.S.

Const. art I, sec. 6. In Kilbourn vy. Thompson, 103 U.S. 168

(1880), for the first time, the Supreme Court dealt with a

challenge to the immunity conferred by the clause. There,

a congressional committee witness who refused to deliver

certain documents to the committee was ordered taken into

custody. He brought suit for false imprisonment against

the House Sergeant-at-Arms and members of the House of

Representatives who had voted for the order. It was held

that in ordering the witness’ imprisonment, the House had

_ exceeded its authority; but that the speech or debate

clause precluded imposition of liability on the congressmen

who voted for the arrest, even though they had violated

the witness’ constitutional rights. The Court said=

‘‘It would be a narrow view of the constitutional pro-

vision to limit it to words spoken in debate. The rea-

son of the rule is as forcible in its application to writ-

ten reports presented in that body by its committees,

to resolutions offered, which, though in writing, must

be reproduced in speech, and to the act of voting. ...

In short, to things generally done in a session of the

House by one of its members in relation to the busi-

ness before it.’’ 103 U.S. at 204.

Thus, actions within the legislative role were held to be

within the ambit of the privilege. And consistent with this

holding, the Supreme Court has reaffirmed that once it is

determined a member of Congress is acting within a

‘‘legitimate legislative sphere,’’ the speech or debate clause

is an absolute bar to interference. Eastland y. United States

Servicemen’s Fund, 421 U.S. 491, 503 (1975), citing Doe v.

McMillan, 412 U.S. 306, 314 (1973). The standard for, in-

voking congressional immunity under article I, section 6

of the Constitution is the standard of legitimate legislative

activity. In the event of a suit, once it is determined that

the conduet complained of meets that standard, the action

must be dismissed. The Court has said:

‘‘[Legislators acting within the sphere of legitimate

legislative activity ‘should be protected not only from

the consequences of litigation’s results but also from

the burden of defending themselves.’ Dombrowski v.

Eastland, [3887 U.S. 82, 85 (1967)] .. . [A] private

civil action, whether for an injunction or damages,

creates a distraction and forces Members to divert

their time, energy, and attention from their legislative

tasks to defend the litigation. Private civil actions

also may be used to delay and disrupt the legislative

function. Moreover, whether a criminal action is in-

stituted by the Executive Branch, or a civil action is

brought by private parties, judicial power is still

brought to bear on Members of Congress and legis-

lative independence is imperiled.’”’ Eastland v. United

States Servicemen’s Fund, 421 U.S. 491, 503 (1975).

Although it is certain that legitimate legislative activity

is within the privilege, considerable confusion exists as to

what constitutes legitimate legislative activity because

there are expansive dicta and a multiplicity of views in the

cases examining various conduct alleged to be protected by

the clause. Although the Supreme Court has always in-

sisted that the clause must be read ‘‘broadly to effectuate

its purpose,’’ United States v. Johnson, 383 U.S. 169, 180

(1966), recent cases appear to adopt a restrictive view of

what is legitimate legislative activity.

The conduct of Senator Proxmire and his administrative

assistant can be divided into phases for the purpose of

determining applicability of the speech or debate clause:

(1) investigation into federal funding of Dr. Hutchin-

son’s research; .

(2) delivery of a speech on the Senate floor by the Sena-

tor; and issuance of a press release reciting the facts

and content of the Senate speech;

(3) follow-up investigation by the Senator’s staff and

by him at appropriation hearings; and

(4) the Senator’s statement on the Mike Douglas Show,

his newsletter to constituents, and his other com-

ments about the plaintiff,

As to the investigation into federal funding of Dr. Hutch-

inson’s research, the Supreme Court has always recog-

nized the authority of Congress to investigate. In Watkins

v. United States, 354 U.S. 178 (1957), dealing with the ap-

peal from a conviction for contempt of Congress, the Court

stated:

‘“The power of Congress to conduct investigations is

inherent in the legislative process, That power is

broad. ... It comprehends probes into departments

of the Federal Government to expose corruption, in-

efficiency or waste. But, broad as is this power of in-

quiry, it is not unlimited. There is no general authori-

ty to expose the private affairs of individuals without

justification in terms of the functions of the Congress.

. No inquiry is an end in itself; it must be related

to, and in furtherance of, a legitimate task of the

Congress. Investigations conducted solely for the per-

sonal aggrandizement of the investigators or to ‘*pun-

ish’ those investigated are indefensible.’’ 354 U.S. at

187.

In this case, Senator Proxmire serves on several sub-

committees of the Senate Committee on Appropriations.

These subcommittees review the budgets of the various

agencies with which Dr. Hutchinson has contracted. As a

member of these subcommittees, Senator Proxmire votes

on appropriations, makes recommendations regarding the

distribution of government funds, and concerns himself

with their expenditure. Therefore, his inquiries, and those

of his administrative assistant, into how American taxpay-

ers’ moneys are spent by the agences over which the sub-

committees in question had jurisdiction were privileged

as legitimate legislative activity under the Kilbourn test

of ‘‘things generally done in a session of the House by one

of its members in relation to the business before it.’’ 103

U.S. at 204. This being the case, the court will turn to the

issue whether as to Senator Proxmire, the April 18, 1975

press release was also privileged under the speech or de-

bate clause.

The most recent Supreme Court pronouncements on the

subject of legitimate legislative activity in the context of

republication of congressional activity are Gravel v. United

States, 408 U.S. 606 ( 1972), and Doe v. McMillan, 412 U.S.

306 (1973). These pronouncements have an important bear-

ing on the issue to be resolved.

In Gravel, the government sought to subpoena a Sena-

tor’s aide and compel him to testify before a grand jury

investigating the release and republication of certain clas-

sified documents, the Pentagon Papers. It appears that

Senator Gravel had convened a subcommittee meeting and

had read extensively from the classified materials. He then

inserted a forty-seven volume study into the Congressional

Record and, some weeks later, arranged for their republica-

tion by a private printing company. The Senator, as in-

tervenor, moved to quash the subpoena and to require the

government to specify the questions it was going to ask his

aide, contending that requiring the aide to testify would

violate the speech or debate clause, In a six to three de-

cision, the Supreme Court agreed with Senator Gravel,

holding that the speech or debate clause extended immu-

nity to both him and his aide with respect to events which

occurred in preparation for the conduct of the subecommit-

tee meeting. However, the Court held that there was no

immunity with respect to arrangements the Senator had

made for private republication of the Papers. With regard

to the immunity_that extended to the Senator’s aide, the

Court said,

‘*{I]t is literally impossible, in view of the complexi-

ties of the modern legislative process, with Congress

almost constantly in session and matters of legisla-

tive concern constantly proliferating, for Members of

Congress to perform their legislative tasks without

the help of aides and assistants; . . . the day-to-day

work of such aides is so critical to the Members’ per-

formance that they must be treated as the latter’s

alter egos; and... if they are not so recognized, the

central role of the Speech or Debate Clause — to pre-

vent intimidation of legislators by the Executive and

accountability before a possibly hostile judiciary [ci-

tation omitted] — will inevitably be diminished and

frustrated.’’ 408 U.S. at 616-617.

-The court emphasized that aides are only protected insofar

as they ‘‘perform or aid in the performance of legislative

acts.’’ 408 U.S. at 618. Thus, they are protected only to

the extent they perform acts which would be privileged were

the legislator-superior to perform them.

In holding that the privilege precluded questioning of

either the Senator or his aide about the subcommittee meet-

ing, but not about the arrangments for private republica-

tion, the Court found that the subeommittee meeting easily

met the Kilbourn test of acts ‘‘generally done in a session

of the House by one of its members in relation to business

before it.’’ 408 U.S. at 624. The Court assumed that ac-

tion taken in committee was legitimate legislative activity,

without examining its relationship to pending legislation or

ordinary committee business. Arrangements for private

republication of the Papers were found not to meet the test

because they were unrelated to the legislative process. 408

U.S. 625-26. The court warned:

‘‘Legislative acts are not all-encompassing. The

heart of the Clause is speech or debate in either

House. Insofar as the Clause is construed to reach

other matters, they must be an integral part of the de-

liberate and communicative processes by which Mem-

bers participate in committee and House proceedings

with respect to the consideration and passage or re-

jection of proposed legislation or with respect to other

matters which the Constitution places within the juris-

diction of either House.’’ 408 U.S. at 625.

Private republication, the Court found, was not central to

Senate deliberations; consequently, a grand jury inquiry

into arrangements for private republication did not threaten

Senate independence by ‘‘impermissibly’’ exposing Senate

deliberations to executive influence. 408 U.S. at 625.

In Doe v. McMillan, 412 U.S, 306 (1973), parents of chil-

dren in the District of Columbia school system brought a

class action alleging that the release and publication of a

congressional] committee report on the District of Colum-

bia school system revealed embarrassing information about

individually named children, infringed their right to pri-

vacy, damaged their mental and physical health, and

harmed their reputations and future careers. The parents

sought to enjoin further publication, and recover compensa-

tory and punitive damages. The defendants, among others,

ineluded (1) the Chairman and members of the House Com-

mittee on the District of Columbia; (2) various committee

staff members; and (3) the Superintendent of Documents

and the Publie Printer,

The District Court dismissed the complaint as to all

defendants; the Court of Appeals affirmed; the Supreme

Court affirmed in part and reversed in part, holding that

the complaint was barred by the speech or debate clause

‘insofar as it sought relief from the Congressmen-Com-

mittee members, from the Committee staff, from the con-

sultant, or from the investigator, for introducing material

at Committee hearings that identified particular individ-

uals, for referring the report that included the material to

the Speaker of the House, and for voting for publication

of the report.’’ 412 U.S. at 312. These acts, and distribu-

tion of the report, the Court said, were ‘legislative acts.’’

412 U.S. 312. It recognized explicitly that, constitutionally,

there was no judicial authority to oversee the judgment of

the Committee with respect to the utility or necessity of

including the names of particular children in the report.

412 US. at 313.

However, the Court refused to extend the privilege to non-

legislator personnel who published the report for the pur-

pose of informing the public about congressional business.

Therefore, it found that the Superintendent of Documents

and the Publie Printer enjoyed no immunity to carrying

out the directions given them to publish the report, although

Congressmen and their staffs were immune from suit for

ordering the publication that went beyond the requirements

of the legislative function. In holding liable those who, at

the direction of Congress, distributed actionable material

to the public, the Court commented:

“To hold otherwise would be to invite gratuitous in-

jury to citizens for little if any publie purpose. We

are unwilling to sanction such a result, at least absent

more substantial evidence that, in order to perform

its legislative function, Congress must not only inform

the publie about the fundamentals of its business but

also must distribute to the public generally materials

otherwise actionable under local law.” 412 U.S. at

316-17,

The ‘‘informing function’? of Congress was not under-

mined by the holding, the Court insisted, because congres-

sional materials such as reports are available for inspec-

tion by the press and the public. 412 U.S. at 317,

The dissent in Gravel joined the Doe majority with Jus-

tice Douglas’ concurring opinion emphasizing that:

‘*We all should be painfully aware of the potentially

devastating effects of congressional accusations, .

There can be no question that the [Senate] resolution

authorizing the investigation and study expressed a

legitimate legislative purpose, Nevertheless, neither

the investigatory nor, indeed, the informing function

of Congress authorizes any ‘congressional power to

expose for the sake of exposure’.’’ 412 U.S. at 329,

330, (citing Watkins v. United States, 354 U.S. 178,

200 (1957).)

Three members of the Gravel majority, Chief Justice

Burger and Justices Blackmun and Rehnquist, dissented,

They argued that the speech or debate clause should be

read to cover preparation, content, and publication of any

committee report, once it is determined that it was properly

authorized by Congress and had a valid legislative purpose,

412 U.S. at 331 et seq. Therefore, Doe v. McMillan sug-

gests a restrictive view of what constitutes legitimate legis-

lative activity in the context of private defamation actions.

By distinguishing between the Congressmen and their staff,

on the one hand, and the Publie Printer and the Superin-

tendent of Documents, on the other, the Court has made it

clear that authorizing and requesting distribution of a

privileged speech or document may not be made the basis

of civil or criminal liability, while distribution by non-

legislators may lead to liability because the privilege of

the speech or debate clause does not apply.

5 In other cases, the Court has shown a willingness to

impose liability on those who act at the direction of legis-

lators, while protecting the legislators themselves. See,

e.9., Powell v. McCormack, 395 U.S. 486 (1969), where cer-

tain House members, the House Sergeant-at-Arms, and the

House Doorkeeper were sued for violating constitutional

rights; House members held immune under speech or de-

bate clause, Sergeant-at-Arms and Doorkeeper held not

immune for carrying out House members’ orders; Dom-

browski v. Eastland, 387 U.S. 82 (1967), where legislators

and their counsel accused of participation in conspiracy

to violate constitutional rights, legislators held immune

In the case at bar, Senator Proxmire resists liability for

the press release on two grounds, one of which is compatible

with Gravel and Doe. First, he argues that no liability can

be imposed upon him for authorizing the release because

the subject matter of the statement, appropriations and

expenditures, is within his immediate jurisdiction as a

member of the various subcommittees on appropriations.

Hence, his conduct is absolutely privileged, as were the

action of the subcommittee members in Doe. Second, he

insists that his authorization of the press release is im-

mune because it is an exercise of the ‘‘informing function.”’

Congress has enacted legislation to establish guidelines

and mechanisms for distribution of various materials. The

franking statute, 39 U.S.C. §3210 (1970), promotes the “in-

forming function” by authorizing free use of the mails.

The statute specifically includes press releases and news-

letters ‘* . . . which may deal with such matters as the im-

pact of laws and decisions on State and local governments

and individual citizens; reports on publie and official ac-

tions taken by Members of Congress; and discussions of

proposed or pending legislation or govenmental actions

and the positions of Members of Congress on, and argu-

ments for or against, such matters.’ 39 U.S.C. §3210

(3)(B). Moreover, Congress has established an adminis-

trative procedure for policing possible abuses of the frank-

ing privilege, See 2 U.S.C. §501, et seq.

Lower courts have recognized the legitimacy of the ‘‘in-

forming function” as a legislative activity in actions in-

volving alleged abuses of the franking privilege. In Hoel-

len v. Annunzio, 348 F. Supp. 305 (N.D. Ill. 1972), aff’d

468 F.2d 522 (7th Cir. 1972), cert. denied, 412 U.S. 953

® (Continued)

under clause, no immunity necessarily extended to their

counsel; Kilbourn y, Thompson, 103 U.S. 168 (1880).

(1973), the district court held that the use of the frank to

send constituents questionnaires which contained the de-

fendant-Congressman’s photograph was a legitimate mail-

ing ‘‘upon official business’? in the exercise of the ‘*inform-

ing function.’’ See Bowie vy. Williams, 351 F. Supp. 628

(E.D. Pa. 1972). For these reasons, this court is con-

Strained to agree with Senator Proxmire. The speech or

debate clause of the constitution renders him immune from

liability to Dr. Hutchinson for his authorization of the

press release of Apri] 18, 1975. That press release, in a

constitutional sense, was no different than would have been

a television or radio broadcast of his speech from the Sen-

ate floor.

The remaining issue is whether Senator Proxmire ’s

statement on the Mike Douglas Show, his newsletter refer-

ences to Dr. Hutchinson’s research and fundings, his com-

ments to news reporters and in interviews either men-

tioning Dr. Hutchinson by name or alluding to his work,

were libelous or defamatory. Resolution of this issue de-

pends on Dr. Hutchinson’s position in his community, and

the interest of the public in the research projects for which

he had received federal funding.

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964),

the Supreme Court held that the First Amendment pro-

vides a conditional immunity from liability in libel actions

brought by public officials. The Court ruled that to pre-

serve free, uninhibited discussion of public issues, a news-

paper could not be held liable for publishing a defamatory

falsehood about a public official unless the plaintiff demon-

_ Strated with ‘‘convincing clarity’’ that the publication was

made with ‘‘actual malice’’; that is, actual knowledge of

falsity or reckless disregard of the truth. 376 U.S. at 279-

80. In Curtis Publishing Co. y. Butts, 388 U.S. 130 (1967),

the Court extended New York Times to actions brought by

‘‘publie figures,’’ persons who are ‘‘intimately involved in

the resolution ef important public questions or, by reason

of their fame, shape events in areas of concern to society

at large.’’ 388 U.S. at 164 (Warren, C.J., concurring). The

test formulated in New York Times represents recognition

that freedoms of speech and press are essential to open dis-

cussion of public issues, freedoms our founding fathers

deemed fundamental for the continued existence of our

governmental system. New York Times vy. Sullivan, 376

U.S. at 270. The test recognizes that:

“erroneous statement is inevitable in free debate, and

that it must be protected if the f reedoms of expression

are to have the ‘breathing space’ that they ‘need...

to survive’....’’ Id. at 271-72.

Soon after this extension, a plurality of the Court held in

Rosenbloom vy. Metromedia, Inc., 403 U.S. 29 (1971), that

the New York Times test applied whenever the publication

concerned matters of general or public interest, without

regard to the plaintiff’s position in his community. 403

U.S. at 43. This holding was shed in Gertz v. Rob-

ert Welch, Inc., 418 U.S. 323 (1974), where it was decided

that a publisher is liable to a publie figure ‘‘only on clear

and convincing proaf that the defamatory falsehood was

made with knowledge of its falsity or with reckless disre-

gard for the truth.’’ 418 U.S. at 342. However, in the case

of private individuals, a less demanding standard is econ-

stitutionally permissible, At least where the substance of

the defamatory statement makes substantial danger to

reputation apparent, states may define for themselves the

appropriate standard of liability, provided they do not

impose liability without fault. 418 U.S. at 347, 348. How-

ever, states may not permit recovery of presumed or puni-

tive damages, at least where liability is not based on a

showing of ‘‘actual malice’’ as defined by New York Times.

Id. at 349,

It is not easy to determine whether a plaintiff is a publie

figure or a private individual. As one court has wryly

observed, ‘‘ Defining public figures is much like trying to

nail a jellyfish to the wall.’’ Rosanova v. Playboy Enter-

prises, Inc., 411 F. Supp. 440, 443 (S.D. Ga. 1976). Ina

recent decision, Time, Jnc. v. Firestone, 424 U.S. 448 (1976),

the Supreme Court held that the plaintiff was not a public

figure since she had not assumed any role of ‘‘especial

prominence in the affairs of society... .’’ Id. at 453. The

fact that she had held press conferences during a well-

publicized divorce proceeding was insufficient to make her

a public figure for the purpose of determining the con-

stitutional protection afforded the defendant’s report of

her divorce. ;

The term ‘‘publie figure’’ has been variously defined.

In Gertz, the Court stated that ‘*[t]hose who, by reason

of the notoriety of their achievements or the vigor and

success with which they seek the public’s attention, are

properly classed as public figures... ’’ 418 U.S. at 342.

Designation as a public figure:

“*... may rest on either of two alternative bases. In

some instances an individual may achieve such per-

vasive fame or notoriety that he becames a public fig-

ure for all purposes and in all contexts. More com-

monly, an individual voluntarily injects himself or is

drawn into a particular publie controversy and there-

by becomes a public figure for a limited range of

issues. In either case such persons assume special

prominence in the resolution of public questions.”’

Gertz v. Robert Welch, Inc., 418 U.S. at 351.

The court added:

‘‘Absent clear evidence of general fame or notoriety

in the community, and pervasive involvement in the

affairs of society, an individual should not be deemed

a public personality for all aspects of his life. It is

preferable to reduce the public-figure question to a

more meaningful context by looking to the nature and

extent of an individual’s participation in the par-

ticular controversy giving rise to the defamation.”

Id. at 352.

Lower court determinations regarding the public figure

status of a plaintiff in a defamation action have followed

the Court’s suggestion and examined the plaintiff’s role in

the controversy out of which the defamation arises. See,

generally, Annot., 75 A.L.R. 3d 616 (1977). In Rosanova vy.

Playboy Enterprises, Inc., 411 F. Supp. 440 (S.D. Ga. 1976),

the court concluded that the plaintiff was a public figure

for purposes of a libel action based on defendant’s maga-

zine article identifying him as a ‘‘mobster”? because over

the years he had voluntarily engaged in a course of conduct

bound to invite attention and comment through his volun-

tary contacts with organized crime figures. In Hotchner

v. Castillo-Puche, 404 F. Supp. 1041 (S.D.N.Y, 1975), the

plaintiff was found to be a public figure for purposes of

libel action based on defendant’s book about Ernest Hem-

ingway. Although the plaintiff’s name was not well known

in the community, he had successfully published a number

of widely distributed works based on his relation with Hem-

ingway, and was thus found to have injected himself

into controversies surrounding the later years of the novel-

ist’s life, a matter of considerable public interest. In a

number of other cases, and on varying facts, courts in dif-

ferent parts of the country have reached the same conclu-

sion. Guitar v. Westinghouse Elec. Corp., 396 F. Supp.

1042 (S.D.N.Y. 1975), aff’d, 538 F.2d 309 (2d Cir. 1976) ;

Buchanan v. Associated Press, 398 F. Supp. 1196 (D.D.Cc.

1975); Fram v. Yellow Cab Co., 380 F. Supp. 1314 (W.D.

Pa. 1974); Meeropol v. Nizer, 381 F. Supp. 29 (S.D.N.Y.),

pet. denied, 508 F.2d 837 (2d Cir. 1974). The question

whether the New York Times test applies to a case is one

of law. ‘‘[I]t is for the trial judge in the first instance to

determine whether the proofs show [plaintiff] to be a

[public figure or a] ‘public official’.’’ Rosenblatt v. Baer,

383 U.S. 75, 88 (1966); Rosanova v. Playboy Enterprises,

Inc., 411 F. Supp. 440, 444 (S.D. Ga. 1976); Hotchner vy.

Castillo-Puche, 404 F. Supp. 1041, 1045 (S.D.N.Y. 1975).

Here, Dr. Hutchinson argues that he is not a publie fig-

ure because he has never voluntarily exposed himself to

extensive public attention, nor assumed any role of special

prominence in the affairs of society, nor thrust himself to

the forefront of public controversy. He contends that the

media coverage of his research before the ‘‘Award’’ was

limited to brief articles in largely local newspapers. More-

over, he argues that because of the information for these

articles was solicited from him by the News and Publica-

tions’ Department of Western Michigan University which

provided him with ‘forms’ for reporting on his work to the

media, he did not initiate media coverage and hence did

not invite public attention and comment.

Senator Proxmire contends that in the area of criticism,

the merit of publicly-funded studies, plaintiff has sought

and acquired a public standing and reputation. He was

published widely in the scientific community, claiming more

than forty behavioral science articles. Except for the peri-

od 1960-61, he has been employed as a research scientist at

various public institutions. Since 1966, his achievements,

grants and studies have been the subject of media cover-

age. Defendant argues that this media coverage indicates

not only that plaintiff is a public figure but that he solicited

that status through press releases and interviews.

Given Dr. Hutchinson’s long involvement with publicly-

funded research, his active solicitation of federal and state

grants, the local press coverage of his research, and the

public interest in the expenditure of public funds on the

precise activities in which he voluntarily participated, the

court concludes that he is a public figure for the purpose of

this suit. As he acknowledged in his deposition, ‘‘Certain-

ly, any expenditure of public funds is a matter of public

interest.’’

He is also, in the judgment of this court, a public offi-

cial. See generally Annot., 19 A.L.R.3d 1361 (1968). Al-

though the Supreme Court has never articulated the limits

of this classification, Rosenblatt vy. Baer, 383 U.S. 75 (1966),

offers some guidance, There, the Court held that the New

York Times test was applicable to a libel action brought by

a former supervisor of a county recreation area who was

appointed by and responsible to three county commission-

ers. The alleged libel had criticized fiscal management un-

der the plaintiff’s regime. The Court stated:

‘The thrust of New York Times is that when inter-

ests in public discussion are particularly strong, as

they were in that case, the Constitution limits the pro-

tections afforded by the law of defamation. Where a

position in government has such apparent importance

that the public has an independent interest in the

qualifications and performance of the person who holds

it, beyond the general public interest in the qualifi-

cations and performance of all government employees,

. the New York Times malice standards apply.

... The employee’s position must be one which would

invite public scrutiny and discussion of the person

holding it, entirely apart from the serutiny and dis-

cussion occasioned by the particular charges in con-

troversy. Id. at 86, 86-87, fn. 13.

In Aday v. United Action for Animals, 361 F. Supp. 457

(S.D.N.Y. 1973), aff’d, 493 F.2d 1397 (2d Cir. 1974), cert.

denied, 419 U.S. 842 (1974), the district court found that the

plaintiff, a research scientist employed by NASA and in-

volved in planning a space flight for a monkey, was both

a public figure and a public official for the purpose of an

action based on allegedly defamatory remarks about his

treatment of experimental animals. In this case, Dr. Hutch-

inson held the important public position of director of re-

search at the Kalamazoo State Hospital in Kalamazoo,

Michigan; he was dealt with as a responsible publie offi-

cial by the federal agencies that funded‘his research; and

he holds himself out as the President of a not-for-profit

corporation that purports to act in the public interest.

Therefore, at the times relevant to this controversy he

held ‘‘a position in government * * * [with] such apparent

importance that the public has an independent interest in

the qualifications and performance of the person who holds

it....’’ Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

This important fact appears from the affidavits, ex-

hibits, and excerpts from depositions that support the mo-

tion for summary judgment; and consequently, the ques-

tion arises; has Dr. Hutchinson made a sufficient showing

that there is a genuine issue of material fact with regard to

actual malice on the part of Senator Proxmire; i.e., knowl-

edge on his part of the falsity of what he said, or a reck-

less disregard by him of the truth, when he made the state-

ments about which complaint is made? The showing of

malice may not be presumed but must be proved by the

plaintiff. Time, Inc., v. McLaney, 406 F.2d 565, 572 (Sth

Cir. 1969), cert. denied, 395 U.S. 922 (1969). A bare alle-

gation of malice, standing alone, is not sufficient to with-

stand a motion for summary judgment. Fram v. Yellow

Cab Co., 380 F. Supp. 1314, 1335 (W.D. Pa. 1974); Gold-

man v. Time, Inc., 336 F. Supp. 133, 138 (N.D. Cal. 1971).

Rule 56(e) of the Federal Rules of Civil Procedure requires

a party opposing a motion for summary judgment to show

specific facts, admissible in evidence, which establishes

that there is a genuine issue for trial. Moreover, under

New York Times,the standard of proof plaintiff must meet

at trial is more than a preponderance of evidence; it is a

showing of defendant’s actual knowledge of falsity or reck-

less disregard of the truth by ‘‘elear and convincing evi-

dence.’’ Vandenburg v. Newsweek, Inc., 507 F.2d 1024, 1026,

1029 (5th Cir. 1975); see New York Times Co. v. Sullivan,

376 U.S. 254, 279-80 (1964); Gertz v. Robert Welch, Inc.,

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

‘Knowledge of falsity”’ presumably means just what it

says: subjective awareness by the defendant that his

statements were false. ‘‘Reckless disregard of the truth,”

on the other hand, has been defined by several Supreme

Court decisions to require that the defendant act with a

‘‘high degree of awareness of ... probable falsity.”’ Beck-

ley Newspapers Corp. v. Hanks, 389 US. 81, 84 (1967);

Garrison vy. Louisiana, 379 U.S. 64, 74 (1964). In the lead-

ing case of St. Amant vy. Thompson, 390 U.S. 727 (1968),

the Court found the ‘reckless disregard’’ requirement un-

satisfied where the defendant had published defamatory

falsehoods about the plaintiff without personal knowledge

of the matter published. The Court said,

eé

. reckless conduct is not measured by whether a

reasonably prudent man would have published, or

would have investigated before publishing. There

must be sufficient evidence to permit the conclusion

that the defendant in fact entertained serious doubts

as to the truth of his publication. ... The finder of

fact must determine whether the publication was in-

deed made in good faith. Professions of good faith

will be unlikely to prove persuasive ... where a story

is fabricated by the defendant, is the product of his

519)

imagination, or is based wholly on an unverified anony-

mous telephone call. Nor will they be likely to pre-

vail when the publisher’s allegations are so inherent-

ly improbable that only a reckless man would have

put them in circulation. Likewise, recklessness may

be found where there are obvious reasons to doubt

to veracity of the informant or the accuracy of his

reports.’’ 390 U.S. at 731, 732.

Measured by this standard, it is clear that Dr. Hutchin-

son’s allegations of libel and defamation fall short. His

arguments that he was subjected to these torts proceed,

basically, along these lines: failure to investigate; unfair

editing in disregard of the facts before defendants; and

republication after plaintiff complained about the press re-

lease of April 18, 1973. From St. Amant, it is clear that

failure to investigate is insufficient to establish reckless

disregard to the truth. Moreover, the record shows that

Mr. Schwartz, on behalf of Senator Proxmire, spent ap-

proximately forty hours over a four week period gathering

and reviewing agency documents regarding plaintiff and

making a draft of his findings. During that time, he con-

tacted various state and federal agencies to verify his find-

ings and to inquire about the justification for the funding

in question. Senator Proxmire and his administrative as-

sistant, Howard Shuman, reviewed Mr. Schwartz’ find-

ings. Before publishing the release, Schwartz telephone

plaintiff to read him the text of the release and ask him if

there were any factual misstatements. Dr. Hutchinson said

that the intended release did not fairly evaluate his re-

search, but corrected only a misspelling of his name.

The charge now being made that defendants’ unfair edit-

ing in disregard of the facts before them is also insufficient

to establish actual malice. Undoubtedly, editing involves

making choices; but selective reporting will not support a

finding of reckless disregard of the truth. Summarizing

plaintiff’s research for the purpose of making some state-

ment about its federal funding will not rise to the level of

falsification. In Time, Inc. v, Pape, 401 U.S. 279 (1971), a

magazine reported as a charge by the United States Com-

mission on Civil Rights an incident of police brutality which

the Commission itself, in its report, characterized as the

allegations of a civil rights complaint. Notwithstanding

the fact that the reporters themselves were pware that the

Commission attributed its account of the incident to a court

complaint, the Court held that the failure to include such a

secondary attribution in the article was not ‘falsification’

sufficient in itself to sustain a jury finding of ‘actual

malice’.’’ 401 U.S. at 289. It would appear that an error

in interpretation of ambiguous documents, such as the con-

glomeration of plaintiff’s grants and publications, through

the adoption of one of several rational alternatives, is in-

sufficient to create a jury issue.

Moreover, Dr. Hutehinson’s claim with regard to unfair

editing and summarization of his research is not buttressed

by Senator Proxmire’s characterizations as ‘*nonsense”’

and ‘‘transparently worthiess’’ or the suggestion that the

news release gives the false impression of $500,000 having

been paid personally to plaintiff; and that he was making

a fortune from government money. In Greenbelt Coopera-

tive Publishing Ass’n, Inc. vy. Bresler, 398 U.S. 6 (1970),

plaintiff was a land developer who was seeking zoning vari-

ances from a town which was in turn attempting to buy

land from him. He used his position as seller to strengthen

his position in requesting the variances. Defendant-news-

paper had reported third-persons’ characterizations of

plaintiff’s conduct as ‘‘blackmail.’’ The Court held that,

as a matter of constitutional law, the use of the word

‘‘blackmail’’ in this context was not libelous:

‘*([E]ven the most careless reader must have per-

ceived that the word was no more than rhetorical

hyperbole, a vigorous epithet used by those who con-

sidered [plaintiff's] negotiating position extremely

unreasonable.’’ 398 U.S. at 14.

- Here, too, it would appear that Senator Proxmire’s state-

ment, ‘‘the good doctor has made a fortune from his mon-

keys and in the process made a monkey out of the Ameri-

can taxpayer’’ is, at worse, no more than rhetorical hyper-

bole. Compare Time, Inc. v. Johntson, 448 F.2d 378 (4th

Cir. 1971),

Defendant’s republication of the allegedly defamatory

remarks after plaintiff complained about the release also

appear insufficient to raise a jury issue of actual malice.

Defendants Proxmire and Schwartz believed the state-

ments to be true when made and still believe them to be

true. Nothing in either defendant’s affidavit or deposition

indicates that they ever entertained any doubt as to the

truth of their statements,

The constitutional privilege of New York Times mandates

summary judgment once it becomes clear that a plaintiff

cannot establish the actual malice required for recovery in

defamation action of this nature, Meeropol v. Nizer, 381

F. Supp. 29, 32, fn, 1 (S.D.N.Y. 1974), pet. denied, 508 F.2d

837 (2d Cir. 1974). However, ‘‘ ‘[o]n a motion for a sum-

mary judgment the burden of establishing the non-existence

of any genuine issue of fact is upon the moving party, all

doubts are resolved against him, and his supporting affi-

davits and depositions, if any, are carefully scrutinized by

the court’.’’? Rose v. Bridgport Brass Co., 487 F.2d 804,

808 (7th Cir. 1973) [citations omitted]. But the court has

a special responsibility here to determine if there is any

genuine dispute because of the danger that speech may be

chilled by the mere fact of litigation. Guam Fed. of Teach-

ers, Local 1581, A.F.T. vy. Ysrael, 492 F.2d 438 (9th Cir,

1974), cert. denied, 419 U.S. 872 (1974); Oliver v. Village

Voice, Inc., 417 F. Supp. 235, 237 (S.D.NVY. 1976). The

court must make a threshold determination, before trial,

whether there has been a showing of actual malice. Bon

Air Hotel v. Time, Inc., 426 F.2d 858, 864 (5th Cir, 1970);

Wasserman v. Time, Inc., 424 F.2d 920, 922 (D.C. Cir, 1970)

(Wright, J. concurring), cert, denied, 398 U.S. 340 (1970),

‘*{T]n making this determination, the granting of summary

judgment may well be the ‘rule’ rather than the ‘excep-

tion’.’’ Oliver v. Village Voice, Inc., 417 ¥. Supp. 235, 237

(S.D.N.Y. 1976); Guitar vy, Westinghouse Elec, Corp., 396

F. Supp. 1042, 1053 (S.D.N.Y, 1975), aff’d 5388 F.2d 309

(2d Cir, 1976); see also, Perry v. Columbia Broadcasting

System, Inc., 499 F.2d 797 (7th Cir. 1974), cert. denied,

419 U.S. 883 (1974); Cervantes v. Time, Inc., 464 F.2d 986

(8th Cir, 1972), cert, denied, 409 U.S. 1125 (1973); Wash-

ington Post Co, v. Keogh, 365 F.2d 965, 968 (D.C, Cir, 1966),

cert, denied, 385 U.S. 1011 (1967).

But even if for the purpose of this suit it is found that

Dr, Hutchinson, is a private person so that First Amend-

ment protections do not extend to Senator Proxmire and

his administrative assistants, relevant state law dictates

the grant of summary judgment, In a diversity action, un-

der the doctrine of Erie R. Co. vy. Tompkins, 304 U.S. 64

(1938), a federal court must apply the conflict of laws

doctrine of the state in which it sits. Klaxon Co. v. Stentor

Flee, Mfg, Co., 313 U.S, 487 (1941), Thus, sitting in Wis-

consin where the suit is filed, this court must look to the

choice of law principles of this jurisdiction to determine

What state law to apply. In Wilcow v. Wilcox, 26 Wis. 2d

617, 133 N.W.2d 408 (1965), the Wisconsin Supreme Court

abandoned the lex loci delicti approach to choice of law

problems in tort cases and adopted the general approach

of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191

N.E.2d (1963). It has since elaborated on the new method

of analysis and adopted ‘‘choice-influencing’’ considera-

tions which are ‘Predictability of results, Maintenance

of interstate and international order, Simplification of the

Judicial task, Advancement of the forum’s governmental

interests, Application of the better rule of law.’’ Conklin

v. Horner, 38 Wis.2d 468, 157 N.W.2d 579, 583 (1968) ; ac-

cord, Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664

(1967). It is not certain what law Wisconsin would apply

in this case, using these ‘*choice-influencing’’ considera-

tions; but it appears the option is logically limited to the

law of two jurisdictions, that of, the District of Columbia,

the place where defendants work and their allegedly wrong-

ful conduct originated, or of Michigan, the plaintiff’s do-

micile, where the injury presumably had effect. For appli-

cation of the relevant law, the conduct consisted of (1) the

April 18, 1975 press release and the newsletters to consti-

tuents; (2) the Mike Douglas Show appearance and the

other alleged defamations, some of them unspecified. How-

ever, under the law of either jurisdiction, Dr. Hutchinson

cannot recover in this case.

In the District of Columbia, an alleged defamatory pub-

lication must be construed in the sense in which readers

to whom it is addressed would ordinarily understand it.

‘The publication is to be read as a whole .... Tf after an

examination of the entire article there is only one reason-

able interpretation of its meaning, it is for the judge...

to say whether or not the words are defamatory.” John-

son v. Johnson Publishing Co., 271 A.2d 696, (D.C. Ct. App.

1970). Only if a publication is libelous per se, are qnestions

of malice, truth, and privilege for the jury. Restatement

(Second) of Torts, an authority that is followed in the Dis-

trict of Columbia, Harmon vy. Liss, 116 A.2d 693 (D.C. Mun.

1955); Restatement (Second) of Torts §569, Comment b

(Tent. Draft No, 21, April 5, 1975) suggests that the only

effect of a finding that a publication is libelous per se is to

place the burden of establishing truth or privilege on the

defendant; and recognizes that liability may be imposed

only on a showing that defendant actually knew of the fal-

sity and defamatory nature of his statements, or reck-

lessly disregarded the truth, or acted negligently in fail-

ing to ascertain the facts. Based on these principles, it

is clear that in the District of Columbia, neither the press

release and newsletters nor the statements attributed to

Senator Proxmire or members of his staff constitute ac-

tionable libel or defamation.

This conclusion is supported by the unmet averments of

Mr. Schwartz and those of persons in state and federal

agencies with whom he spoke during his investigation of

Dr. Hutchinson’s federal funding; but particularly, by the

recognition in the District of Columbia of a defense to an

action for defamation based on the doctrine of fair com-

ment. In Fisher v. Washington Post Co., 212 A2d 335

(D.C, Ct. App. 1965), an action by an art gallery owner

against a newspaper based on allegedly libelous comments

about the manner in which the gallery presented its paint-

ings, the court held that the doctrine of fair comment was

applicable. The court defined the doctrine:

‘Fair comment or criticism on a matter of public

interest is not actionable so long as the comment is

not motivated by malice .... So long as the comment

is the speaker’s actual opinion, based on fact, about a

matter of public interest, the words are protected un-

less they are grounded in malice or go beyond a dis-

cussion of the public works or acts of the subject of

the opinion. ... Fair comment isa complete defense

... and the words are not made actionable by the fact

that the complaining party is injured in his, business

reputation, ... The fair comment defense goes only

to opinions expressed by the writer and does not ex-

tend to misstatements of fact.’’ Jd. at 337.

In the case here, the fair comment doctrine is a complete

defense to Dr. Hutchinson’s action with regard to the

statements contained in the April 1975 press release and

the newsletters. The disposition of public funds is clearly

a matter of public interest; and the opinions expressed

were based on facts researched by Senator Proxmire’s as-

sistant, the defendant, Mr. Schwartz. Under these ¢ireum-

stances, the release and newsletters did not have to include

all the facts on which the opinions were based, ‘‘[s]o long

as the facts are available to the public, the criticism is with-

in the doctrine of fair comment.’’ Fisher v. Washington

Post Co., 212 A.2d 335, 338 (D.C. Ct. App. 1965).

It is also clear that in the District of Columbia the brief

and innocuous statement Senator Proxmire made on the

Mike Douglas Show did not constitute defamation, nor did

any of the other statements about which Dr. Hutchinson

complains. The law of the jurisdiction requires that in a

suit for defamation there be proof of certainty as to the

person defamed before liability can be imposed. Restate-

ment of Torts §564(b) (1938). The person defamed need

not be specifically named; but the surrounding cireum-

stances must be such that there is no doubt in the hearer’s

mind as to the person’s identity. Harmon v. Liss, 116 A.2d

693, 695 (D.C. Mun. App. 1955), citing Restatement of

Torts §564(b). In this case, the statement on the Mike

Douglas Show did not name Dr. Hutchinson or even de-

scribe him with the clarity that would suggest a jury ver-

dict against Senator Proxmire. The other statements were

similarly innocuous.

Under the law of Michigan, Dr. Hutchinson fares no bet-

ter. That state recognizes a rule of qualified privilege for

all bona fide communications concerning any ‘subject in

IIE ee

which the party communicating has an interest, or in refer-

ence to which he has a legal, moral or social obligation to a

person having a corresponding interest or duty. Timmis v.

Bennett, 352 Mich. 335, 89 N.W.2d 748, 753 (1958) ; Bufalino

v. Maxon Bros., Inc., 368 Mich. 140, 117 N.W.2d 150 (1962).

This rule was applied in Timmis v. Bennett, supra, an ac-

tion by a police officer against an attorney for libel in a

letter referring to conduct of the city’s law enforcement.

The court found that the rule included *“*statements made

in good faith by a citizen . . . having, or claiming to have,

special knowledge . . . bearing on [a] matter of publie con-

cern and communicated to others concerned or interested.”’

89 N.W.2d at 755. The court explained the procedural con-

Sequences of a finding of qualified privilege, saying,

‘*The meaning in law of a privileged communication

is that it is made on such an oecasion as rebuts the

prima facie inference of malice arising from the pub-

lication of matter prejudicial to the character of the

plaintiff, and throws upon him the onus of proving

malice ip ‘act, but not of proving it by extrinsic evi-

dence only. ... The effect, therefore, of showing

that the communication was made upon privileged oc-

casion is prima facie to rebut the quality ... of malice

[in law] and casts upon the plaintiff the necessity of

showing malice in fact, — that is, that the defendant

was actuated by ill will in what he did and said, with

a design to causelessly or wantonly injure the plain-

tiff, — and this malice in fact, resting, as it must,

upon the libelous matter itself and the surrounding

circumstances tending to prove fact and motive, is a

question to be determined by the jury. The question

whether the occasion is such as to rebut the inference

of malice if the communication be bona fide is one of

law for the court, but whether bona fides exist is one

of fact for the jury, [citations omitted] Id. at 753-54;

accord Harrison v. Arrow Metal Products Co., 20

Mich. App. 590, 174 N.W.2d 875 (1969).

Timmis indicates that the doctrine of qualified privilege

applies in Michigan for the same reasons that the doctrine

of fair comment applies in the District of Columbia. Thus,

the burden is on Dr. Hutchinson to resist the motion for

summary judgment by showing that in the trial of this case

there will be evidence of malice in fact or ill-will. He ecan-

not simply rest on his pleadings, but must make this show-

ing once it is established that the occasion in question

was privileged. In Nuyen v. Slater, 372 Mich. 654, 127

N.W.2d 369, 373 (1964), where summary judgment for de-

fendant was affirmed, the Supreme Court of Michigan said

that ‘‘[i]f the cireumstances relied on as showing malice

are as consistent with its nonexistence as with its exist-

ence, the plaintiff has not overcome the presumption of

good faith [established by defendant’s showing of a quali-

fied privilege] and there is nothing for the jury.’’ No such

showing has been made here by Dr. Hutchinson with regard

to the press release or the newsletter.

As to the statement made on the Mike Douglas Show,

and those claimed by Dr. Hutchinson to have been made on

other occasions, it appears that the law of Michigan, like

that of the District of Columbia, requires certainty as to

the person allegedly defamed before liability may be im-

posed. In Lewis v. Soule, 3 Mich 514, 521 (1855), the Su-

preme Court of Michigan said that

‘‘(T]he true test is... whether those who are ac-

quainted with the person libelled, upon hearing the

charge, are able to make the application. ... Men gen-

erally talk, and write, to be understood ; and when they

design to speak of and concerning an individual, they

either refer to him by name, or connect him with some

fact or circumstances, by which those addressed, un-

| |

derstood who is to be designated. That fact or cir-

cumstances must be known by those to whom the

communication is made; otherwise, nothing is com-

municated,”’

It follows, then, that in this Summary judgment pro-

ceeding, the motion, pleadings, depositions, exhibits, and

affidavits disclose there is no genuine issue of material fact

to be resolved between the parties. The conduct about which

Dr. Hutchinson complains is admitted by the defendant,

Senator Proxmire. On the facts alleged in the complaint,

indeed the only facts on which the plaintiff can base any

claim for relief, it matters not whether he was a public

figure, a public official or a private person. Therefore,

this court concludes that defendant is entitled to judgment

as a matter of law; and this is true whether the law applied

in this case is that of federal jurisdictions, the District

of Columbia where the conduct complained of originated,

or that of the state of Michigan where Dr. Hutchinson lives

and the claimed injury presumably was felt. Bon Air Hotel

Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970); Perry vy.

Columbia Broadcasting System, Inc., 499 F.2d 797 (7th Cir.

1974) ; Washington Post Company v. Keogh, 365 F.2d 965

(D.C. Cir. 1956); Nuyen vy. Slayter, 372 Mich. 654, 127

N.W.2d 369 (1964).

Accordingly, summary judgment will be entered in favor

of the defendant Senator William Proxmire and against

the plaintiff Dr. Ronald R. Hutchinson. And since on the

facts alleged a claim cannot be stated on which relief can

be granted against the remaining defendant, Mr. Morton

Schwartz, this court serves notice on the plaintiff that be-

cause of the inadequacy of the complaint, it will, on its own

initiative, dismiss the suit as to Mr. Schwartz, unless a

showing is made within 30 days that such dismissal should

not be ordered. Interature, Inc. v. Quinn, 482 F.2d 372

16 Pn

(1 Cir. 1973); Dodd v. Spokane County, Washington, 393

F.2d 330 (9th Cir. 1968).

So ordered \

(s) George N. Leighton

Dated: April 22, 1977 *

APPENDIX A \

Office of

SENATOR WILLIAM PROXMIRE

Wisconsin

FOR RELEASE AFTER 6:30 A.M. FRIDAY,

APRIL 18, 1975

Senator William Proxmire (D. Wis) announced on Fri-

day, ‘‘My choice for the Golden Fleece Award for the big-

gest waste of taxpayers’ money for the month of April

goes jointly to the National Science Foundation, National

Aeronautics and Space Administration and the Office of

Naval Research for spending almost $500,000 in the last

seven years to determine under what conditions rats, mon-

keys and humans bite and clench their jaws. From the

findings of these studies it is clear that the Government

paid a half million dollars to find out that anger, stopping

smoking, and loud noises produce jaw clenching in people.’’

The Wisconsin Senator said, ‘This is the second in a

series of ‘fleece of the month’ awards which will climax

in a Biggest Waste of the Year Award.

‘All this money was given to Dr. Roland 8. Hutchinson

of Kalamazoo State Hospital jn Michigan. Last year alone

the good doctor spent over $200,000 of which more than

$100,000 were federal funds. And what are some of the

other results reached by these research projects in the last

seven years?

‘‘Dr. Hutchinson told NASA that people get angry when

they feel cheated and tend to clench their jaws or even

scream and kick. NSF learned that Dr. Hutchinson’s mon-

keys became angry when they were shocked and would try

to get away from the shock. In addition, NSF was informed

that drunk nionkeys do not usually react as quickly or as

often as sober monkeys and that hungry monkeys get angry

more quickly than well-fed monkeys.

“The Office of Naval Research appears to have gotten

the same type of so-called research as did the NSF and

NASA.

‘It is very interesting to trace the history of these ex-

tremely similar and perhaps duplicative projects. In 1967,

NSF gave Dr. Hutchinson $44,700 to study ‘Environmental

and Physiological Causes of Aggression.’ For two years,

Dr. Hutchinson studied the biting reactions of monkeys

when they received electric shocks. He also compared their

reaction while being given a number of different drugs as

alcohol and caffeine. In 1969, the NSF gave Dr. Hutchin-

son another $26,000 to continue these experiments. He re-

ceived another grant, this one for $51,200 in 1970 from the

NSF.

‘‘By this time Dr. Hutchinson was ready to extend his

work to human biting and jaw cienching. In 1970, Dr.

Hutchinson received a grant which ran for five years from

the ONR to continue ‘research on subhuman primates to

determine the environmental, physiological and biochemi-

cal factors responsible for the maintenance of aggressive

behavior and systematic replication of results obtained in

primates extended to human subjects.” Total funding from

the Navy ran to $207,000.

‘‘During this period, Dr. Hutchinson applied for and

received a $50,000 grant from NASA to develop measure-

ments of latent anger or aggression in humans by means of

jaw-clenching. In addition, Dr. Hutchinson received his

fourth NSF grant in 1972 for $51,800 in order to continue

his experiments on monkeys and extend the work to human

jaw-clenching.

‘*Dr. Hutchinson, who in addition to being Research Di-

rector at Kalamazoo State Hospital, is also an Adjunct

Professor at Western Michigan University and President

of his own non-profit Foundation for Behavior Research,

has proposals presently pending before the NSF, the

National Institute of Drug Abuse, and the National Insti-

tute of Mental Health to continue research on monkeys’

drinking, drug and jaw clenching habits. If Dr. Hutchinson

is successful in this new grantmanship attempt, he would

receive an additional $150,000 of taxpayers’ money,

‘The funding of this nonsense makes me almost angry

enough to scream and kick or even clench my jaw.

‘‘Dr. Hutchinson’s studies should make the taxpayers

as well as his monkeys grind their teeth. In fact, the good

doctor has made a fortune from his monkeys and in the

process made a monkey out of the American taxpayer.

‘*Tt’s time for the federal government to get out of this

‘monkey business.’ In view of the transparent worthless-

ness of Hutchinson’s study of jaw-grinding and biting by

angry or hard-drinking monkeys, it’s time we put a stop to

the bite Hutchinson and the bureaucrats who fund him have

been taking out of the taxpayer.”’

Proxmire said that the publie is urged to write him in

Washington with suggestions for the ‘‘Golden Fleece of

the Month’’ for May.

a, i i i

APPENDIX B — Opinion Of The United States Court of

Appeals For The Seventh Circuit Dated

June 30, 1978.

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 77-1677 and 77-1755

Ronavp R. Hurcuryson,

Plaintiff-Appellant,

WituraM Proxmie and Morton SCHWARTz,

Defendants-A ppellees.

Appeal from the United States District Court for the

Western District of Wisconsin, No. 76-C-257,

George N. Leighton, Judge

Northern District of Illinois, sitting by designation.

Arouep January 9, 1978 — Decipep June 30, 1978

Before Castie, Senior Circuit Judge, Woov, Circuit

Judge, and East, Senior District Judge.*

Caste, Senior Circuit Judge. This civil suit against a

United States Senator and his legislative aide for dam-

ages arising from one of the Senator’s monthly ‘*Golden

* Honorable William G. East, Senior United States Dis-

trict Judge for thé District of Oregon, is sitting by desig-

nation.

Fleece’’ awards involves the interplay of the immunities

provided by the Speech or Debate Clause and the first

amendment. The issues on appeal are (1) whether the

alleged activities of the congressional defendants were

within the legitimate legislative sphere and thus abso-

lutely immune from suit and (2) to the extent those activ-

ities are not absolutely protected by the Speech or Debate

Clause, whether the statements complained of are pro-

tected by the qualified privilege of the first amendment.

The district court found that the combination of the ab-

solute and qualified immunities completely shielded the

defendants and granted their motion for summary judg-

ment. We affirm.

The facts as alleged by plaintiff are fully stated in the

opinion below. Hutchinson v. Proxmire, 431 F. Supp. 1311

(W.D: Wis. 1977), and will be briefly summarized here.

Defendant William Proxmire is a United States Senator

from Wisconsin who serves on the Senate Committee on

Appropriations. In March, 1975, Senator Proxmire an-

nounced in a speech on the Senate floor that he was es-

tablishing his ‘‘Golden Fleece of the Month Award’’ the

aim of which was to point out examples of wasteful

government spending. Senator Proxmire’s legislative

aide, Morton Schwartz, was assigned to identify and in-

vestigate possible ‘Fleece’’ candidates.

After a review of agency documents and discussions

with the various agencies’ officials, the defendants de-

cided they would give a Golden Fleece award to the

National Science Foundation (NSF), the Office of Naval

Research (ONR), and the National Aeronauties and

Space Administration (NASA) for spending $500,000 to

fund research by plaintiff Dr. Ronald Hutchinson into

the causes of animal and human aggression. Defendants

delivered a press release to the Senate Service Depart-

ment on April 15, 1975 for release April 18 which, in es-

sence, was the text of a speech scheduled to be given

before the Senate by Senator Proxmire on April 18.1 In

his speech, Senator Proxmire characterized the research

as merely studying why ‘‘rats, monkeys and humans bite

and clench their jaws.’’ Also, on or about April 15, 1975,

Schwartz telephoned Dr. Hutchinson to inform him of the

upeoming award and to verify the information contained

in the speech. In rebuttal, Dr. Hutchinson then issued his

own press release also dated April 18, 1975, In May, 1975,

Senator Proxmire sent approximately 100,000 newsletters

to his constituents and others summarizing the Golden

Fleece Award. Later in 1975, in addition to other inter-

views, Senator Proxmire appeared on a Milwaukee radio

show and the Mike Douglas television show to discuss the

Golden Fleece Awards including the one given to NSF,

ONR, and NASA. Following the April 18, 1975 announce-

' The press release is attached to this opinion as Appendix

? This newsletter is attached as Appendix B. A second

newsletter repeated the substance of the first and stated

that all funding of the studies involved had been ended,

* The relevant dialogue from the Mike Douglas Show is

set forth below:

Mike Douglas: You gave another award to a research

project studying angry rats.

Senator Proxmire: Well it was angry monkeys, rats

and humans, It was a study that cost $500,000 to find

out why people, rats and monkeys clench their jaws.

They found out they clench their jaws when they were

angry, when they were prodded by sticks, when they

were hungry, and they didn’t clench their jaws as

much if they had been drinking,

Mike Douglas: You know we’re laughing at this but

this is really really,

Senator Proxmire: Oh it’s terrible.

ment of the award, plaintiff alleges defendant Schwartz

made several followup phone ealls to NSF, ONR, and the

National Institute of Drug Abuse (NIDA), and possibly

other agencies, encouraging them to terminate the funding

of Dr. Hutchinson’s research,

Dr. Hutchinson filed this action seeking $8,000,000 in

damages for injury to his reputation, for physical illness,

mental distress, invasion of privacy, and loss of existing

and prospective economic advantage. Defendants, claim-

ing immunity from suit, moved for summary judgment

and filed numerous supporting documents. Plaintiff op-

posed the motion with equally voluminous documetita-

tion. The district court, in a scholarly opinion, granted

Senator Proxmire’s motion for summary judgment and

later dismissed the suit against Schwartz. This appeal

followed.4

Il.

Several recent cases have interpreted the scope of the

absolute immunity provided legislators and their aides

* The district court granted Senator Proxmire’s motion

for summary judgment on April 22, 1977 (77-1677) and

the motion to dismiss defendant Schwartz on June 22, 1977

(77-17° ). As stated below, see note 5 infra, since we find

the legal status of the defendants to be identical, we af-

firm both rulings for the same reasons.

We note that in cases involving the assertion of the

immunities raised here, dismissal or summary judgment,

when proper, is necessary to prevent the possible harass-

ment of a full-fledged lawsuit; the precise harassment the

legislative and ‘irst amendment immunities were designed

to prevent. See Dombrowski v. Eastland, 387 U.S. 82, 85

(1967) (Speech or Debate Clause protects legislators from

the burden of defending against a lawsuit as well as from

the results of the lawsuit); Grzelak v. Calumet Publishing

Co., Inc., 543 F.2d 579, 582 (7th Cir. 1975) (summary jndg-

ment minimizes the chilling effect libel suits have on first

amendment rights).

under the Speech or Debate Clause in suits stemming

from investigations.’ While actual speech in either House

is unquestionably protected, the Clause also protects other

acts by representatives when those acts are found to be

within the “legitimate legislative sphere.’’ Eastland v.

United States Servicemen’s Fund, 421 U.S. 491, 503 (1975) ;

Gravel v. United States, 408 U.S. 606 (1972).6 The act of

investigation is an ‘‘appropriate auxiliary to the legisla-

tive function’’ and legislators have been found to be with-

in the legislative sphere when the subject of the investiga-

* See Comment, McSurely v. McClellan: Civil Suits Un-

der the Speech or Debate Clause. 71 Nw.U.L.Rev. 783

(1977) [hereinafter cited as Northwestern Comment].

The Speech or Debate Clause states: ‘for any Speech or

Debate in either House, they [members of Congress] shall

not be questioned in any other Place.’’ U.S. Const. art. I,

§6. Generally, legislative aides are entitled to the same

Speech or Debate Clause protection as the representatives

they serve. Gravel v. United States, 408 U.S. 606, 618

(1972). In the present action, we view the immunity avail-

able to Senator Proxmire and his aide, Morton Schwartz,

to be identical.

The heart of the Clause js speech or debate in either

House. Insofar as the Clause is construed to reach

other matters, they must be an integral part of the de-

liberative and communicative processes by which Mem-

bers participate in committee and House proceedings

with respect to the consideration and passage or rejec-

tion of proposed legislation or with respect to other

matters which the Constitution places within the juris-

diction of either House.

408 U.S. at 625. See generally Reinstein & Silvergate.

Legislative Privilege and the Separation of Powers, 86

Harv. L. Rev. 1113 (1973).

tion was one on which Congress could legislate and when

the information sought from material witnesses furthered

that subject. McGrain v. Dougherty, 273 U.S. 135, 174, 177

(1927) ; Watkins v. United States, 354 U.S. 178, 187 (1957).?

However, even where the investigation is within the legis-

lative sphere, absolute immunity does not attach to the im-

proper dissemination of actionable information outside

Congress, Doe v. McMillan, 412 U.S. 306, 316 (1973) ; Grav-

el v. United States, supra at 625, nor to illegal or unconsti-

tutional acts committed during the investigation. United

States v. Brewster, 408 U.S. 501, 526 (1972) ; Dombrowski

v. Eastland, 387 U.S. 82 (1967).8 Equipped with these ba-

sic principles, we will now determine if absolute legisla-

tive immunity bars suit upon the acts complained of by the

plaintiff. For the purposes of analysis, we divide the al-

legations in this case into four separate acts: (1) the fol-

low-up phone calls to administrative agencies; (2) the

press release of the speech; (3) the newsletters; and (4)

the television, radio, and other interviews.

7 We find unpersuasive plaintiff’s argument that these

cases do not involve Speech or Debate immunity but only

the power of Congress to investigate. Language from

McGram and Watkins is frequently used in Speech or De-

bate cases involving investigations as the test for applica-

tion of legislative immunity. E.9. Eastland v. United States

Servicemen’s Fund, supra at 505-06; Northwestern Com-

ment, supra note 5 at 788 n. 39.

8 An example of a civil suit based upon claims of uncon-

stitutional acts is McSurely v. McClellan, 553 F.2d 1277

(D.C. Cir. 1976) (en bane), cert. dismissed as improvident-

ly granted sub nom., McAdams v. McSurely, ...... Ms scent

46 U.S.L.W. ...... (June 26, 1978). It is not contended that

the tort claims here are of constitutional dimensions. See

Paul v. Davis, 424'U.S. 693 (1976).

1, Follow-up Phone Calls to Agencies

Plaintiff agrees that the investigative actions by de-

fendants in gathering information on public spending from

administrative agencies is not actionable under the Speech

or Debate Clause since the investigation was within the

legislative sphere. McGrain v. Dougherty, supra. How-

ever, Dr. Hutchinson argues that when the defendants

made the phone calls to the agencies encouraging them to

terminate the research grants, they exceeded the legiti-

mate information gathering protected by legislative im-

munity. The phone calls, plaintiff alleges, were made for

the purpose of influencing the agencies and not for the

gathering of information. In response, defendants main-

tain that the follow-up contact with the agencies was part

of the legislature’s oversight function and thus should be

accorded Speech or Debate protection.

The thrust of legislative immunity is the protection of

the ‘deliberative and communicative processes’’ of repre-

sentatives Gravel v. United States, supra at 625. It can

be argued that each of the nonlegislative functions of Con-

gress, t.e¢., investigative, oversight, informing, assist rep-

resentatives in their legislative deliberations and commu-

nications. However, the Supreme Court has specifically

stated that contact with administrative agencies is norm-

ally too far removed from the legislative sphere to be ab-

solutely protected:

Members of Congress are constantly in touch with the

Executive Branch of the Government and with ad-

ministrative agencies — they may cajole, and exhort

with respect to the administration of a federal stat-

ute — but such conduct, though generally done, is not

protected legislative activity. United States v. John-

son [383 U.S. 169 (1966)] decided at least this much.

Gravel v. United States, supra, at 625. See also McSurely

v. McClellan, supra note 8 at 1285-86. Thus, while there

may be cases where the postinvestigation contact with ad-

ministrative agencies is so integral to the investigation

or other protected activities that application of absolute

immunity would be compelled, the phone calls to NSF, NA-

SA, and NIDA in this case cannot be accorded Speech or

Debate protection.9

2. Press Release, Newsletters, Television and Radio

Comments :

To determine whether the remaining allegations of plain-

tiff are actionable under the Speech or Debate Clause, we

must explore the limits of permissible public dissemina-

tion of information by a representative. The Supreme

Court has rejected the argument that the ‘‘informing fune-

tion’’ of Congress requires absolute immunity for all pub-

lie distribution of information. ‘ Doe v. McMillan, supra

at 316. Doe held that the Speech or Debate Clause pro-

tected representatives and their legislative aides from suit

for voting to authorize the public distribution of an ac-

tionable committee report. However, the Court further

held that absolute immunity was not automatically avail-

able to the Public Printer and Superintendent of Docu-

ments who actually distributed the report and remanded

the case for a determination of whether the ‘“legitimate

° The district court did not specifically address the Speech

or Debate status of the follow-up phone calls, It appears,

however, that the court below viewed these actions as

merely a part of the total investigation and therefore ab-

solutely privileged. 431 F. Supp. at 1321-22. In light of

the language in Gravel, we must disagree. ;

legislative needs’’ of Congress had been exceeded. Thus,

while the Supreme Court has recognized that the inform-

ing function of Congress is sufficiently important to war-

rant Speech or Debate immunity for some public dissem-

ination of information, 7d. at 317, 328 (Douglas, J., concur-

ring), 333 (Blackmun, J., concurring and dissenting), 341

(Rehnquist, J., concurring and dissenting), the distribu-

tion outside Congress must serve legitimate legislative

needs to afford the actual distributor absolute immunity.

The key factor in determining the amount of distribution

that is within legislative needs is the extent of the dis-

semination. Jd. at 324.11

10 On appeal after demand, Doe v. McMillan, 566 F.2d 713

(D.C. Cir. 1977), cert. denied, 98 S.Ct. 1607 (1978), the

D.C. Cireuit upheld the district court’s finding that the

routine distribution of the actionable report ‘‘did not ex-

ceed the legitimate legislative needs of Congress.’’ Id. at

715. See also Gravel v. United States, supra at 625 (Sen-

ator’s direct arrangements with a private printer to pub-

lish classified information was “in no way essential to the

deliberations of the Senate’’),

It appears that while the representatives and their leg-

islative aides are automatically immune from suit when

authorizing public dissemination of information, both can

become subject to showing ‘legitimate legislative needs’?

if they actually distribute actienable material outside Con-

gress. In the latter instance, representatives and their

legislative aides are treated in the same manner as non-

legislative functionaries such as the Public Printer. See

Doe v. McMilian, 566 ¥.2d at 715 n.1. We assume, accord-

ing to plaintiff’s allegations, that defendants actually dis-

tributed the actionable materials here and cannot claim to

have merely ‘‘authorized”’ their distribution.

While the extent of* the public dissemination was the

only factor noted by the Supreme Court in Doe, implicit

recognition was also given to the importance of the type

Following the particularized inquiry into the legisla-

tively necessary extent of public distribution outlined in

Doe, we agree with the district court that the press re-

lease in this case was protected by absolute immunity. It

is uncontested that the release, which is virtually identical

to the speech by Senator Proxmire, was routinely distrib-

uted to the Senator’s general media list which was placed

on file in the Senate Service Department (Shuman A ffida-

vit ff/ 8-11). The release merely served to call attention

‘to the speech which was in the publie record.!2. Given the

enormous amount of material addressed by Congress each

day, strategic press releases may serve to alert a repre-

sentative’s colleagues about a matter of particular im-

portance as well as to inform the appropriate federal agen-

cies and the public who can then comment on proper legis-

lative action. We find the limited facilitation of press

coverage of congressional action in this case to be pro-

tected by the Speech or Debate ‘Clause. Cf. Consumer’s

Union of United States, Inc. v. Periodical Correspondents’

Association, 515 F.2d 1341, 1350-51 (D.C. Cir. 1975), cert.

denied, 423 U.S. 1051 (1976) (management of congression-

4 (Continued) :

of information being distributed; i.€., committee reports,

floor speeches, proposed legislation. Presumably, certain

types of information would require greater publie distri-

bution to properly serve legislative needs.

2 Plaintiff claims the press release, dated April 18, 1975,

was actually made public April 15, three days before the

speech. Assuming, as we must, that plaintiff is correct,

we do not see how the timing of the release affects this

case. There is no claim that Senator Proxmire attempted

to create absolute immunity after the fact by reading the

release in the Senate. The wording of the press release be-

lies any such contention.

al press galleries, though entrusted to private association,

is protected by the Speech or Debate Clause).

We also find that the Speech or Debate Clause protects

any otherwise actionable material contained in newsletters

mailed to Senator Proxmire’s constituents. As noted

above, the informing function of Congress was given lim-

ited Speech or Debate protection by the Supreme Court

in Doe v. McMillan, supra, If the informing function, even

though limited, is to be accorded any absolute immunity, it

must be in a ease such as this. Senator Proxmire’s news-

letter informed his constituents of his actions in connection

with overseeing public funds which were part of his gen-

eral duties as a Senator and his particular responsibilities

as a member of the Senate Committee on Appropriations.

Denying a representative protection for newsletters to his

constituents in circumstances such as this would effective-

ly isolate the legislator from the people who elected him.

Id. at 333 (Blackmun, J., concurring and dissenting). The

subject matter and language of the newsletter make this

case factually distinct from Doe. Id. at 328-29 (Douglas, J.,

concurring).

However, any defamatory remarks made by Senator

Proxmire in television, radio, and other interviews are

13 The district court held that the ‘‘press release, in a

constitutional sense, was no different than would have been

a television or radio broadeast of his speech from the Sen-

ate floor.’’ 481 F.Supp. at 1325. This statement might be

an overstatement since it is unlikely that all exact duplica-

tions of congressional speeches would enjoy the unques-

tioned absolute immunity accorded actual speech in the

House or Senate. See note 6 supra. However, we agree

with the district court that the form of distribution of the

questioned material has an effect upon the extent to which

its dissemination can still be considered to serve legisla-

tive needs.

not protected by absolute immunity. We view this form

of public dissemination of information, absent special

circumstances, to be too far removed from serving legiti-

mate legislative needs to be within the limited reach of the

protected informing function. Such methods of reaching

the public are generally not necessary to carry out a rep-

resentative’s informing function and are more frequently

used for political purposes. United States v. Brewster,

supra at 512. While there might be a case where distribut-

ing actionable information through television and radio

interviews would be viewed as serving legislative needs,

the type of distribution alleged here does not suggest that

situation.

Finding that television and radio interviews and the

follow-up telephone conversations with administrative

agencies urging the cut-off of funds are not absolutely im-

mune under the Speech or Debate Clause, we must now de-

termine whether the statements made in those communica-

tions are protected by the qualified privilege of the first

amendment right to free speech.

IIT.

Regarding the statements which were unprotected by

an absolute Speech or Debate immunity, the court pelow

after careful analysis, found (1) that Dr. Hutchinson was

both a public official and publie figure and there was no

showing of ‘‘actual malice’? under the doctrine of New

York Times v. Sullivan, 376 U.S. 254 (1964) and (2) that

even if Dr. Hutchinson was a private person, the state-

ments did not constitute defamation under the applicable

local law. 431 F. Supp. 1325-83. After having independ-

ently examined the record, Fadell v. Minneapolis Star and

Tribune Co., Inc., 557 F.2d 107, 108 (7th Cir.), cert. de-

nied, 98 S. Ct. 508 (1977), we agree wiih the district court

that summary judgment was proper based upon first amend-

ment grounds. Consequently, we need not decide whether

the statements were actionable defamation under local law.

We agree with the district court that Dr. Hutchinson

is a public figure and consequently must show that any

false, defamatory statements were made with ‘‘actual mal-

ice,’’ i.e., actual knowledge that the statements were false

or reckless disregard of their truth or falsity. New York

Times v. Sullivan, supra at 279-80. See Curtis Publishing

Co. v. Butts, 388 U.S. 130 (1967). Public figures are those

who (1) have the appropriate status which either exists by

their position alone or is achieved by their voluntarily

thrusting themselves into the ‘‘ ‘vortex’ of an important

public controversy’’ and (2) have ‘‘sufficient access to the

means of conterargument to be able to ‘to expose through

discussion the falsehood and fallacies’ of the defamatory

statements.’’ Jd. at 155. While government employees

and contractors by their positions alone do not generally

have such ‘‘persuasive power and influence that they are

deemed public fizures for all purposes,’’? Gertz v. Robert

Welch, Inc., 418 U.S. 323, 345 (1974), the nature and ex-

tent of an individual’s participation in the particular mat-

ter may make him a public figure for that issue. Id. at

352.

Here, there is no question that Dr. Hutchinson had ac-

tively solicited federal grants to pursue his research and

had secured a substantial amount of public funds by his

applications. (Defendants’ Exhibits 82b, 83). The plain-

tiff had also published numerous articles regarding his

work (Plaintiff’s Exhibits 64-96), and stories regarding

his research had appeared several times in local papers.

(Defendants’ Exhibits 47-51). In addition to his public

status as to his research, it is evident from the record

that plaintiff had sufficient access to the media to rebut

any defamatory falsehood. Dr. Hutchinson’s answering

press release was quoted in detail in the same stories

which initially reported the Golden Fleece Award. (Plain-

tiff’s Exhibits 32-39). Thus, Dr. Hutchinson had the ap-

propriate status and access to the means of rebuttal to be

considered a public figure with regard to the propriety of

his research. See Adey v. United Action for Animals, Inc.,

361 F. Supp. 457, 460 (S.D.N.Y. 1973), aff’d, 493 F.2d 1397

(2d Cir.), cert. denied, 419 U.S. 842 (1974) (NASA re-

search scientist is public figure).

Having found the plaintiff to be a public person and

therefore subject to the New York Times standard, the

district court granted summary judgment after finding

that there was no issue of material fact as to whether

the defendants had actual malice. 431 F. Supp. 1329-30,

In order to show actual malice, plaintiff must prove by

clear and convincing evidence that defendants had actual

knowledge of the falsity of their statements or that defend-

ants acted with a ‘‘high degree of awareness of . . . prob-

able falsity.’’ St. Amant v. Thompson, 390 U.S. 727, 730-

31 (1968), Gertz v. Robert Weich, Inc., supra at 342. We

agree with the district court that, upon this record, there

14 In light of our decision that Dr. Hutchinson is a public

figure, we need not decide whether the district court was

correct in holding that plaintiff was also a public official.

431 F.Supp. at 1327.

Time, Inc. v. Firestone, 424 U.S. 448 (1976), cited by

plaintiff, is factually distinct from the present case. There,

the Court found that Mrs. Firestone was not a public fig-

ure since she did not thrust herself into the forefront of a

public controversy in order to influence its reolution by

her divorce proceedings and related press conferences. Id.

at 454 & n.3. In contrast, here Dr. Hutchinson was not

forced to seek public funds and plaintiff’s numerous arti-

cles and news stories which preceded his rebuttal press re-

lease demonstrate his public affirmation of the soundness

of the research and the continued public funding thereof.

See also Gertz v. Robert Welch, Inc., supra at 345.

is no question that defendants did not have knowledge of

the actual or probable ‘‘falsity’’ of their statements.

Dr. Hutchinson’s main argument in this regard is that

while failure to fully investigate generally does not es-

tablish reckless disregard for the truth, St. Amant v.

Thompson, supra, defendants were on notice of the possible

falsehoods since they possessed agency reports supporting

the type of research and its cost. (ONR letter, Plaintiff’s

Exhibit 9 to Shuman Deposition.) In contrast, defend-

ants’ exhibits include correspondence from agencies which

criticize plaintiff’s research technique and project costs.

(Defendants’ Exhibit 90.) At best, this could be read to

show there was a dispute as to the value of the research.

This dispute by itself, however, is not sufficient to raise a

question of material fact as to whether defendants had

knowledge that their statement of opinion regarding the

value of the research was actually or probably ‘‘false.’’

In addition, it is unchallenged that defendants spent many

hours investigating and verifying their information.

(Schwartz Affidavit § 10-20.) Defendants even tele-

phoned Dr. Hutchinson before the press release was is-

8 We note that the statements in the interviews consti-

tute a personal opinion as to the value of plaintiff’s work,

rather than false statements of fact and thus may not be

defamatory in a constitutional sense. See Greenbelt Coop-

erative Publishing Ass’n, Inc. v. Bresler, 398 U.S. 6, 14

(1970). While the statements in the press release intimat-

ing that Dr. Hutchinson had made a personal fortune and

that the research was ‘‘perhaps duplicative’? may be de-

famatory falsehoods, that document, together with the

newsletters, is absolutely immune under the Speech or

Debate Clause. See Part Il supra. In any event, we find

the allegedly defamatory statements, including any action

which may be premised on the documents being mislead-

ing, to be privileged under the first amendment.

sued to inform him of its content. (Hutchinson Deposition

pp. 889-90.) Defendants can also point to their exten-

sive researching of Dr, Hutchinson’s application for fed-

eral grants and contracts as support for their opinions re-

garding plaintiff’s ‘‘grantsmanship.’’ (Defendants’ [Ex-

hibits 82b, 83.) Under these circumstances, plaintiff has

not presented facts which could demonstrate that defend-

ants acted with a ‘thigh degree of awareness of ... prob-

able falsity.’’ St. Amant v. Thompson, supra at 730-31,

Therefore, we find that there is no genuine issue as to

whether the defendants had actual malice in the constitu-

tional sense and that summary action by the district court

was proper. See Grzelak v. Calumet Publishing Co. Ine.,

supra note 4 at 583.

Finally, plaintiff argues that even though the first

amendment may shield the defendants from liability for

defamation, the district court erred in not allowing a trial

upon the other wrongs alleged in the complaint, i.e., inter-

ference with contractual relations, intentional infliction of

emotional anguish, and invasion of privacy. We view

these additional allegations of harm as merely the results

defamatory falsehoods themselves are privileged, it would

defeat the privilege to allow recovery for the specified dam-

ages which they caused,

'6 Although the harm caused by the follow-up phone calls

might be argued to be independent of the defamatory

statements, we see no constitutional distinetion in their

treatment. The torts allegedly stemming from the phone

calls, interference with contractual relations and interfer-

ence with prospective advantage, are based upon ‘‘malice’’

or other improper intent. W. Prosser, Law or Torts, §§

129, 130 (4th ed. 1971). Where the constitutional right to

free speech is involved, as it is here, the New York Times

standard would be applicable to such an intent inquiry.

For the reasons stated above, the judgments of the dis-

trict court are

AFFIRMED.

APPENDIX A

April 18, 1975 Press Release

Office of

SENATOR WILLIAM PROXMIRE

Wisconsin

For Revease Arrer 6:30 A.M. Fray, Aprit 18, 1975

Senator William Proxmire (D.—Wis) announced on

Friday, ‘‘My choice for the Golden Fleece Award for the

biggest waste of taxpayers’ money for the month of April

goes jointly to the National Science Foundation, National

Aeronautics and Space Administration and the Office of

Naval Research for spending almost $500,000 in the last

seven years to determine under what conditions rats,

monkeys and humans bite and clench their jaws. From the

findings of these studies it is clear that the Government

paid a half million dollars to find out that anger, stopping

smoking, and loud noises produce jaw clenching in peo-

ple.’’

The Wisconsin Senator said, ‘‘This is the second in a

series of ‘fleece of the month’ awards which will climax

in a Biggest Waste of the Year Award.

‘*All this money was given to Dr. Roland [sie] R. Hutch-

inson of Kalamazoo State Hospital in Michigan. Last

year alone the good doctor spent over $200,000 of which

more than $100,000 were federal funds. And what are

some of the other results reached by these research proj-

ects in the last seven years?

Paice ca = “

‘‘Dr. Hutchinson told NASA that people get angry when

they feel cheated and tend to clench their jaws or even

seream and kick. NSF learned that Dr. Hutchinson’s

monkeys became angry when they were shocked and would

try to get away from the shock. In addition, NSF was

informed that drunk monkeys do not usually react as quick-

ly or as often as sober monkeys and that hungry monkeys

get angry more quickly than well-fed monkeys.

‘‘The Office of Naval Research appears to have gotten

the same type of so-called research as did the NSF and

NASA.

‘Tt is very interesting to trace the history of these ex-

tremely similar and perhaps duplicative projects. In 1967,

NSF gave Dr. Hutchinson $44,700 to study ‘Environmen-

tal and Physiological Causes of Aggression.’ For two

years, Dr. Hutchinson studied the biting reactions of mon-

keys when they received electric shocks. He also com-

pared their reaction while being given a number of differ-

ent drugs as alcohol and caffeine. In 1969, the NSF gave

Dr. Hutchinson another $26,000 to continue these experi-

ments. He received another grant, this one for $51,200 in

1970 from the NSF.

‘*By this time Dr. Hutchinson was ready to extend his

work to human biting «nd jaw clenching. In 1970, Dr.

Hutchinsor received a grant which ran for five years from

the ONR to continue ‘research on subhuman primates to

determine the environmental, physiological and biochemi-

eal factors responsible for the maintenance of aggressive

behavior and systematic replication of results obtained in

primates extended to human subjects.’ Total funding from

the Navy ran to $207,000.

‘‘During this period, Dr. Hutchinson applied for and re-

received a $50,000 grant from NASA to develop measure-

ments of latent anger or aggression in humans by means

of jaw-clenching. In addition, Dr. Hutchinson received

his fourth NSF grant in 1972 for $51,800 in order to con-

tinue his experiments on monkeys and extend the work to

human jaw-clenching.

‘*Dr. Hutchinson, who in addition to being Research Di-

rector at Kalamazoo State Hospital, is also an Adjunct

Professor at Western Michigan University and President

of his own non-profit Foundation for Behavior Research,

has proposals presently pending before the NSF, the Na-

tional Institute of Drug Abuse, and the National Institute

of Mental Health to continue research on monkeys’ drink-

ink, drug and jaw clenching habits. If Dr. Hutchinson is

successful in this new grantsmanship attempt, he would

receive an additional $150,000 of taxpayers’ money.

‘*The funding of this nonsense makes me almost angry

enough to scream and kick or even clench my jaw.

‘*Dr. Hutchinson’s studies should make the taxpayers

as well as his monkeys grind their teeth. In fact, the good

doctor has made a fortune from his monkeys and in the

process made a monkey out of the American taxpayer.

‘*It’s time for the federal government to get out of this

‘monkey business.’ In view of the transparent worthless-

ness of Hutchinson’s study of jaw-grinding and biting by

angry or hard-drinking monkeys, it’s time we put a stop

to the bite Hutchinson and the bureaucrats whe fund him

have been taking out of the taxpayer.’’

Proxmire said that the public is urged to write him in

Washington with suggestions for the ‘‘Golden Fleece of

the Month’’ for May.

re -

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