Petition — Yiamouyiannis v. Consumers Union of the United States, Inc.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No._@9-1987

JOHN YIAMOUYIANNIS, PH.D.,

Petitioner,

-VS-

CONSUMERS UNION OF THE UNITED STATES, INC.,

A NEw York CORPORATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOHN REMINGTON GRAHAM

212 West Franklin Avenue

Minneapolis, Minnesota 55404

Telephone: 612-871-8885

PAUL STEPHEN BEEBER

781 Old Country Road

Plainview, New York 11803

JAMES K. SIMAKIS

One East 11th Avenue

Columbus, Ohio 43201

Attorneys for the Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Page

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Questions Presented for Review ...........sscececece 2

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Argument for Writ of Certiorari .................0. 10

Appendix A — Opinion of Court of Appeals.......... A-l

Appendix B — Memorandum and Order of District

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TABLE OF AUTHORITIES

United States Constitution:

oe Ee Serre ee 2,11,12

I I oaks io cans ccanddanbens 2,12

Federal Rules of Civil Procedure:

PEER TTR Ter TUL TET TEE CET 3,9,11

Cases:

Hutchinson v. Proxmire, 61 L. Ed. 411 (1979) .... 9

New York Times v. Sullivan, 376 U.S. 254 (1964). . 10

Trentler v. Meredith Corp., 455 F. 2d. 255 (8th

Sy SP a SU KAS he Kinase ada eke es eae eee 11

Other Sources:

Washington Post Co. v. Keough, 365 F. 2d. 965

(D.C. Cir. 1966), cert. denied, 385 U.S. 1011

EE ES

Oliver v. Village Voice, Inc., 417 F. Supp. 235

TS ES

Nader v. De Toledano, 408 A. 2d. 31 (D.C. App.

1979), cert.denied, __ U.S. _____ (1980).........

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

a ek ag beeps be dd TUSSs veccedece

Arnstein v. Porter, 154 F.2d 464 (2 Cir. 1946).....

Herbert v. Lando, 60 L.Ed.2d 115 (U.S. 1979) ....

Tansill, Ed., Documents Illustrative of the Forma-

tion of the Union of American States, Gov’t.

Printing Office, 1927, p. 3 (Resolves of the

First Continental Congress of 1774).........

Ibid., p. 716 (Debates of the Philadelphia Conven-

tion on September 14, 1787) ...............

Madison, Hamilton & Jay, The Federalist, Mentor

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11

11

11

13

12

12

12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

JOHN YIAMOUYIANNIS, PH.D.,

Petitioner,

-VS-

CONSUMERS UNION OF THE UNITED STATES, INC.,

A NEw YorK CORPORATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

The opinion of the United States District Court for Southern

New York, per Owen, J., entered May 30, 1979, F. Supp.

, is reprinted in the Appendix hereof. The opinion of the

United States Court of Appeals for the Second Circuit, per

Oakes, J., entered on March 19, 1980, F. 2d. oe

reprinted in the Appendix hereof.

JURISDICTION

This Court has jurisdiction to entertain this Petition for Writ

of Certiorari under 28 U.S.C., Section 1254(1). The time

allowed for filing this Petition is 90 days from and after March

19, 1980 by virtue of 28 U.S.C., Section 2101(C), Cf. Rule 22

(3), Rules of the United States Supreme Court.

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QUESTIONS PRESENTED

1. If, on motion for summary judgment in a federal diversity

libel suit brought by a public figure plaintiff (Petitioner here), it

appears on the one hand that the journalist claimed to have

carefully assembled his facts and believed his defamatory asser-

tions, and on the other hand that the sources the journalist

claimed to have examined, as accentuated by proffered expert

testimony, directly and objectively contradicted the allegations

of the articles complained of, and the defendant (Respondent

here) continued publication after the factual errors were pointed

out, is there a triable issue of actual malice?

2. Is the correct legal standard for deciding the foregoing

question set forth in the Nader v. DeToledano, 408 A. 2d 31

(D.C. App. 1979), cert. den. ___. U.S. ____ (1980)?

3. Did the United States Court of Appeals for the Second Cir-

cuit correctly apply the standard of Nader v. DeToledano,

supra, in this particular case?

CONSTITUTIONAL PROVISIONS

The pertinent provisions of the United States Constitution

are:

Amendment I, which reads in part, ‘‘Congress shall make no

law ... abridging the freedom of speech or of the press. . .”’

Amendment VII, which reads, ‘‘In suits at common law,

where the value in controversy shall exceed twenty dollars, the

right of the trial by jury shall be preserved, and no fact shall be

otherwise reexamined in any court of the United States than ac-

cording to the rules of the common law.”’

<_< om

RULE PROVISION

Rule 56 of the Federal Rules of Civil Procedure pertains to

summary judgment, and provides in part, ‘“The judgment

sought shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue of

material fact, and that the moving party is entitled to judgment

as a matter of law.”’

STATEMENT OF THE CASE

The references to the record hereinafter are to the record as

organized for consideration by the United States Court of Ap-

peals for the Second Circuit.

This is a federal diversity suit for libel. The Plaintiff (Peti-

tioner here), Dr. John Yiamouyiannis, is a biochemist and

epidemiologist with a worldwide reputation for his work tend-

ing to show a causal relationship between fluoridation and

cancer. The Defendant (Respondent here), through Mr. Joseph

Botta, a well-trained and experienced journalist, published two

articles (Complaint Exhibits A-B, Appendix, pages 11-18) in the

July and August, 1978, issues of Consumer Reports which has a

circulation of about 2,000,000 copies throughout the country.

Dr. Yiamouyiannis claims that these articles were defamatory of

him, and sued for money damages.

While the Plaintiff (Petitioner here) requested jury trial as to

disputed material facts (Complaint, page 9, Appendix, page 10),

both sides moved for summary judgment.

From the motion papers, affidavits, and exhibits, it emerged

that the articles in question made several comments of and con-

cerning the Plaintiff (Petitioner here), the most prominent of

which were to the effect that, either out of stupidity, malice,

misguided sincerity, or greed, and using techniques of hysteria

and propaganda, he contrived or contributed to a false con-

ied ee

troversy concerning the safety of fluoridation, particularly in

relation to the threat of cancer, and failed to adjust his crude

data on cancer deaths for age, race, and sex as would any com-

petent scientist working in the field. See Complaint Exhibits A

and B, (Appendix, pages 11-18); and First Affidavit of Mr.

Graham, pages 2-8, including references therein. '

' On page 37 of his Affidavit in Support of Defendant’s Motion for

Summary Judgment, Mr. Joseph Botta, author of the articles here

complained of (Complaint Exhibits A and B), candidly described the

impression concerning the Plaintiff (Petitioner here), Dr. John

Yiamouyiannis, and his colleague, Dr. Dean Burk, that he hoped his

journalistic efforts would convey to the public. Specifically, his words

were, ‘*... the reader is left to draw his own conclusions as to

whether the plaintiff and his cohort are motivated by stupidity,

malice, misguided sincerity, or greed in their reckless and irresponsible

actions . . . the plaintiff and his cohorts have continued irresponsibly

to mislead the public about an issue vital to health, using techniques of

hysteria and propaganda. . . .’”” Appendix, page 64.

On page 396 of Complaint Exhibit A, Mr. Botta wrote, ‘‘The real goal

of antifluoridation groups, explains an American Dental Association

official, ‘is to create the illusion of a scientific controversy.’’’ Appen-

dix, page 14. On page 482 of Complaint Exhibit B, Mr. Botta wrote,

‘*The survival of this fake controversy represents, in CU’s opinion,

one of the major triumphs of quackery over science in this

generation.’’ Appendix, page 18.

On page 395 of Complaint Exhibit A, Mr. Botta wrote concerning the

work of the Plaintiff (Petitioner here) and his colleague, ‘‘Drs. Burk

and Yiamouyiannis had somehow managed to ignore the most fun-

damental factors involved in cancer mortality rates—age, sex, and

race.’” Appendix, page 13. This latter sentence was intended to

describe the work of Drs. Burk and Yiamouyiannis presented to a

Subcommittee of the House Committee on Government Operations in

the Congress of the United States on September 21, and October 12,

1977, the official transcript of which constitutes Defendant’s Exhibit

C. This is so, because on page 392 of Defendant’s Exhibit A, Mr.

Botta wrote, ‘‘Last fall, a subcommittee of the House’s Committee on

Government Operations held hearings on the issue. Drs. Burk and

Yiamouyiannis testified .. . What emerged from the testimony in

CU’s opinion, was an unmistakable sense that millions of Americans

are being grossly misled,’’ etc. Appendix, page 11.

cen eee

Whatever the ultimate truth may be, the reality of the

fluoridation-cancer controversy among competent, learned,

serious-minded scientists is beyond question. See Plaintiff’s Ex-

hibits 12, 13, and Defendant’s Exhibit C; First Affidavit of Dr.

Yiamouyiannis, pages 2-11 (Appendix, pages 69-78), including

references therein; First Affidavit of Mr. Graham, pages 8-10,

including references therein.’

Below the Defendant (Respondent here) argued that, despite the plain

language of the articles in question here and the affidavit of the author

the libels were not of and concerning the Plaintiff (Petitioner here).

The explicit references set forth above are sufficient to demolish that

contention. In any event, one can sue for defamation of another, if

the author knew of the relationship between the person explicitly

defamed and the complainant, and intended indirect reference to the

latter. See, e.g., Vol. 35, New York Jurisprudence, Libel and Slander,

Section 144; and Vol. 50, American Jurisprudence 2nd. Libel and

Slander, Section 311.

Lest there be any question of the propriety of consideration of con-

text, extrinsic circumstances, and innuendo, we refer the Court to the

following New York cases: Sanderson v. Caldwell, 45 N.Y. 398

(1871); O’Connell v. Press Pub. Co., 214 N. Y. 352, 108 N. E. 556

(1915); Kloor v. New York Herald Co., 200 App. Div. 90, 192 N.Y.S.

465 (1922); and Crane v. New York World Telegram Corp., 308 N.Y.

470, 126 N. E. 2d 753 (1955).

? At the conclusion of the congressional hearings to which earlier

reference has been made (Defendant’s Exhibit C, page 319), the chair-

man of the subcommittee, Hon. L. H. Fountain of North Carolina,

remarked, ‘‘. . . the basic purpose of this hearing has been to bring

this important matter into the open so that competent scientists can

evaluate . . . I am not suggesting that flourides cause cancer. I do not

know. Rather, I am saying that at the present time the carcinogenicity,

or the lack of carcinogenicity, of this substance is a question which re-

mains unanswered.’’

The excellent credentials of the Plaintiff (Petitioner here) Dr.

Yiamouyiannis, as a biochemist, statistician, and epidemiologist, are

described on pages 194-196 of Defendant’s Exhibit C.

The seriousness of the controversy concerning the relationship be-

tween fluoridation and cancer is further manifest from a fair reading

of Plaintiff’s Exhibits Nos. 12 and 13: on November 16, 1978, in the

case of Aitkenhead v. West View, No. GD 4585 78, tried before the

ntl aca

It is equally clear that the Plaintiff (Petitioner here) did adjust

his crude data for age, race, and sex, and that he is a prominent,

well-recognized scientist in the area of fluoridation. See Defen-

dant’s Exhibit C, pages 3-17, 18-40, 61-72, 191-196, 203-211,

310-319. See also First Affidavit of Dr. Yiamouyiannis, pages

3, 7-8 (Appendix, pages 71, 75-76).

Allegheny County Court of Common Pleas in Pittsburgh, Hon. John

P. Flaherty (now Associate Justice of the Pennsylvania Supreme

Court) enjoined fluoridation as a nuisance on a finding that the

measure Causes cancer.

> In the passages of the congressional hearings cited above, Dr.

Yiamouyiannis, in written submissions and oral testimony reprinted,

showed adjustments for age, race, and sex, both by direct and indirect

methods. Specifically, he demonstrated, in relation to crude data, that

the ratio of males to females went down faster in the fluoridated cities,

that therefore sex tends to widen the difference in cancer deaths be-

tween experimental and control cities, that race is a function of ur-

banization and only central cities were considered, that therefore race

is not a factor, and that hard data breakdowns age group by age group

show no discernable difference in cancer death rates among persons

under 45 years of age, but considerable difference among persons 45

years of age and older, particularly among persons 65 years of age and

older. Defendant’s Exhibit C, pages 18-40. He went on to demonstrate

that, if the indirect method of adjustment is used, including the so-

called standardized mortality ratio, as preferred by his critics, his

results by the direct method are confirmed. This is so, he explained,

because his critics, aside from the deficiency of their method, made

two primary errors: first, they mistabulated cancer deaths for

nonfluoridated cities in 1970, and, secondly, they omitted 80-90% of

the available and pertinent data in deriving their standardized mortali-

ty ratios; the correction of both errors, Dr. Yiamouyiannis made

clear, yielded a confirmation of the results he and Dr. Burk reached by

the method they preferred. All of the foregoing is made inescapably

lucid in the transcript. Defendant’s Exhibit C, pages 3-17, 61-72,

310-319. Not a single critic of the work of Drs. Burk and Yiamouyian-

nis testifying before the subcommittee claimed anywhere that they had

not corrected for age, race, and sex. See pages 194-196 of Defendant’s

Exhibit C for a description of the qualifications and prominence in the

field of fluoridation epidemiology enjoyed by the Plaintiff, Dr.

Yiamouyiannis. It might be added that his colleague, Dr. Burk, is one

of the most highly decorated cancer research scientists in the world, a

veteran of fifty years of superb scientific work in the field. See page

471 of Defendant’s Exhibit C.

oo;

The question formulated by the motions was simply whether

the Defendant, (Respondent here) through Mr. Botta, pub-

lished with actual malice.

Mr. Botta insisted that he carefully reviewed his sources, in-

cluding the Hearings of the Fountain Subcommittee, con-

ferred with a number of learned persons, and sincerely believed

that his defamatory comments were true. See First Affidavit of

Mr. Botta, pages 7-19 (Appendix, pages 36-48).

The Plaintiff (Petitioner here) showed, however, that the face

of the Fountain Subcommittee Hearings, reviewed by Mr.

Botta,‘ clearly reveal the seriousness and reality of the

fluoridation-cancer controversy, as well as the extensive ad-

justments for age, race, and sex he executed; and thus, he

claims, an inference of willful or reckless disregard for the truth

is perfectly natural. See First Affidavits of Dr. Yiamouyiannis,

pages 2-12 (Appendix, pages 69-79), and of Mr. Graham, pages

11-13, including references therein.

* In his Affidavit in Support of Defendant’s Motion for Summary

Judgment, Mr. Botta explained that he had reviewed and carefully

digested the transcript of the congressional hearings earlier men-

tioned. Indeed, he began his research by reading this piece, for, on

page 7 of his Affidavit, Mr. Botta said, ‘‘During February of 1978, I

began my investigation of the issue of fluoridation of public water

supplies. I requested and received a copy of the transcript of the hear-

ings before the House Subcommittee . . . A copy of the transcript is

annexed to this affidavit as Exhibit C. . . .”” Appendix, page 35. On

page 8 of his Affidavit, Mr. Botta admitted that he read and digested

Defendant’s Exhibit C. Appendix, page 36. Cf. footnote 3 hereof.

a Se

As additional circumstantial evidence of actual malice, the

Defendant (Respondent here) continued to license publication

of the articles in question, even after the factual mistakes of Mr.

Botta were clearly pointed out by the Plaintiff (Petitioner here).

See Second Affidavit of Mr. Graham.’ Cf. Affidavit of Dr.

McKinney, and Plaintiff’s Exhibit No. 2.°

> Specifically, Consumers Union licensed publication of the articles

here complained of in the Journal of the California Dental Associa-

tion, Vol. 7, pages 41-49, published in January, 1979. Pages 10-11 of

the First Affidavit of Mr. Graham reveals that Plaintiff’s Exhibit No.

13 was made available to the Defendant (Respondent here) in the early

autumn of 1978, prior to the commencement of this suit. This exhibit

constitutes a summation of the evidence which ‘‘compellingly con-

vinced’’ Justice Flaherty of the fluoridation-cancer link, in part by

reason of the facts recited in footnote 3 hereof. See page 9 of

Plaintiff’s Exhibit No. 12. Cf. footnote 2 hereof. If the Defendant

(Respondent here) had published in good faith at the outset, once they

had learned the factual errors in their articles, they would have at least

discontinued further publication and licensing for publication. In-

stead, they went ahead to broadcast their libels even further. What

more convincing evidence of malice can be imagined?

* Dr. McKinney is a professor of scientific history at the University

of Kansas with eminent knowledge in the field of fluoridation, a sub-

ject of considerable interest to him as a scholar. On page 1 of his Af-

fidavit, Dr. McKinney expressed his expert opinion that ‘‘the said ar-

ticles in Consumer Reports are full of elementary mistakes of science,

gross misrepresentations of fact, deceitful omissions, and outrageous

defamation, which no honest, careful journalist could possibly

write.”’ Plaintiff’s Exhibit No. 2 is a letter to Dr. Yiamouyiannis from

Mr. Patrick McGrady of New York City, a respected free-lance journ-

alist. Mr. McGrady observed, ‘‘After reading the correspondence and

the articles, I can only conclude that, in this case, CU and/or its writer

didn’t give a damn about searching out the truth. .. .”’

ae hes

The United States District Court for Southern New York held

from the record as a matter of law that there was insufficient

evidence of actual malice, and granted the Defendant (Respon-

dent here) a summary judgment. The District Court apparently

adopted the notion that the First Amendment exerts a special in-

fluence on Rule 56, F.R. Civ.P. in public figure libel actions,

and held that in such cases summary judgment is the ‘‘rule’’

rather than the ‘‘exception.’’ Given this premise, the District

Court held that sharp disparity in fact between the source relied

upon by the journalist, and the libel published, is insufficient

evidence of actual malice to withstand summary judgment, at

least where the journalist states by affidavit that he carefully

reviewed his sources and consulted others. The Plaintiff (Peti-

tioner here) appealed.

The United States Court of Appeals for the Second Circuit

noted footnote 9 of the majority opinion in Hutchinson v.

Proxmire, 61 L. Ed. 2d 411i at 422 (U.S. 1979), as well as the

majority opinion in Nader v. DeToledaro, supra, and held, in

light of the First and Seventh Amendments, that there is no

special ‘‘rule’’ favoring preferred use of summary judgment in

public figure libel actions, and that summary judgment operates

the same way in such suits as in any other civil action. However,

the Circuit Court, in applying this standard, held that there still

was insufficient evidence of actual malice as a matter of law,

because the journalist stated in an affidavit that he had con-

sulted others, reviewed his source material, and protested his in-

nocence of evil motive. The judgment of the District Court was

therefore affirmed.

This Petition for Writ of Certiorari seeks review of the judg-

ment of the Second Circuit.

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ARGUMENT FOR WRIT OF CERTIORARI

1. We accept as settled principle that, in a public figure libel

action, the plaintiff must prove actual malice — i.e. willful or

reckless disregard of the truth — with convincing clarity. New

York Times v. Sullivan, 376 U.S. 254 (1964). Nor do we doubt

that the plaintiff in this case (Petitioner here) has voluntarily

thrust himself into the forefront of the public controversy con-

cerning fluoridation, so as to become a public figure.

The question we seek to have reviewed deals with the use of

summary judgment in public figure libel actions.

2. The record below shows circumstantial evidence of actual

malice, viz., sharp factual disparity between the source material

relied on and the published libel, as well as tendered expert

opinion, together with continued publication after the factual

errors were shown to the publisher. This uncontradicted

evidence was tendered in opposition to summary judgment.

In support of summary judgment, by way of an attempt to

show the absence of actual malice, the journalist protested that

he had studied the source material, consulted others, and acted

with professional vare. Although these assertions were not

directly contradicted, they are insufficient to demonstrate the

absence of malice as a matter of law in the context of a summary

judgment motion. This is so, because, given this record, the

credibility of these asserticns is challenged by powerful circum-

stantial evidence, and may yet be further impeached, with possi-

ble aid of discovery by cross-examination at trial. Plainly, a

reasonable jury can be persuaded by the circumstantial

evidence, and might disbelieve the protestations of the jour-

nalist, after full development of the facts at trial.

Under normal procedure for summary judgment, guided by

the traditional principles of jury trial mandated by the Seventh

Amendment, a full hearing in Upen court, with direct and cross

examination before a panel of jurors, would be required in this

case. It has been held that, if a journalist is shown to have been

aware of the underlying facts which he reports inaccurately, a

triable issue of actual malice has been created. Wasserman v.

Time, Inc., 424 F. 2d 920 (D.C. Cir. 1970). Likewise, it has been

held, in a well-known copyright case, that so long as there is the

slightest doubt as to state of mind, and credibility can be tested

on cross examination, even if the testimony resisting summary

judgment is out of the ordinary and hard to believe, it is error to

grant summary judgment. Arnstein v. Porter, 154 F. 2d 464 (2

Cir. 1946). ms

3. It therefore appears to us that jury trial on the question of

actual malice can be avoided, given this record, only by adop-

tion of a special doctrine of summary judgment in public figure

libel actions. Following the case of New York Times v. Sullivan,

supra, inferior courts in this country began to develop a number

of extrapolations from the seminal principle, one of which has

been the idea that the First Amendment exerts a special in-

fluence on Rule 56, F.R. Civ. P., in other words, that the policy

of press freedom is strong enough to warrant more liberal use of

summary judgment for the protection of publishers sued for

libel by public figures: otherwise, so this train of thought goes,

press defendants would be chilled in First Amendment freedoms

simply by the pendency of jury trial in public figure libel ac-

tions. The normal judicial rhetoric concerning summary judg-

ment asserts that this procedure is appropriate only rarely, in

the unusual or exceptional case, and that any doubt as to ihe ex-

istence of a question of fact should be resolved against use of

summary judgment. But some courts, sensing the urgency of

First Amendment demands, have insisted that summary judg-

ment is the ‘‘rule’’ rather than the ‘‘exception’’ in public figure

libel actions. See, e.g., Oliver v. Village Voice, Inc., 417 F.

Supp. 235 (S.D.N.Y. 1976); Trentler v. Meredith Corp., 455 F.

2d 255 (8 Cir. 1972); and Washington Post Co. v. Keogh, 365 F.

2d 965 (D.C. Cir. 1966), cert. den. 385 U.S. 1011 (1967).

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4. The problem we see with this approach is that the prin-

ciples of summary judgment requiring extremely cautious use of

this procedure are dictated by the Seventh Amendment. The

right of jury trial in suits at common law is no less sacred to

American legal institutions than press freedom, as may be seen,

for example, in the Resolves of the First Continental Congress in

1774, (Tansill (ed.), Documents Illustrative of the Formation of

the Union of American States, Gov’t. Printing Office, 1927, p.

3), the Debates of the Philadelphia Convention on September

14, 1787 (Ibid, p. 716), and the 83rd and 84th Federalist

(Madison, Hamilton & Jay, The Federalist, Mentor Ed., pp.

495-519), followed by prominent mention of both press freedom

and jury trial in the same Federal Bill of Rights as framed in

1789 and adopted in 1791. The First Amendment should not be

read to the detriment of the Seventh Amendment. Indeed, the

use of summary judgment as normalized procedure in public

figure libel actions effectively restricts litigous protest of harm

to the reputations of those in the public forum whose offerings

provoke the displeasure of the managers of big media: the effect

can only be to intimidate participation in public debate of those

persons — even those well known, but perhaps unpopular,

figures — who do not have the support of major publishers.

The notion of preferred use of summary judgment in public

figure libel actions not only contravenes the Seventh Amend-

ment, but practically limits freedom of speech and press for less

powerful participants in the marketplace of ideas, contrary to

the clear policy of the First Amendment.

5. In light of these considerations, we were gratified to see the

dictum of Chief Justice Burger in footnote 9 of his majority

opinion in Hutchinson v. Proxmire, supra. In that case, cir-

cumstantial evidence of actual malice consisted essentially of

‘‘unfair editing and summarizing’? — in other words, sharp

disparity between the source relied on and the writing com-

plained of — precisely as we have here. The district court re-

jected this evidence of actual malice, and granted summary

judgment on the special doctrine that summary judgment is the

— =

‘“‘rule’’ rather than the ‘‘exception’’ in public figure libel ac-

tions. The Chief Justice responsively said in footnote 9:

‘*Considering the nuances of the issues raised here, we are

constrained to express some doubt akut the so-called

‘rule.’ The proof of ‘actual malice’ calls a defendant’s

state of mind into question . . . and does not readily lend

itself to summary disposition.”’

Interestingly enough, the Chief Justice made reference to

Herbert v. Lando, 60 L. Ed. 2d 115 (U.S. 1979) in which Justice

Byren White noted that circumstantial evidence is a normal way

to prove actual malice in public figure libel actions. 60 L. Ed. 2d

at 124.

In an apparent effort to conform to, or perhaps in anticipa-

tion of this message, the District of Columbia Court of Appeals

voted against summary judgment in a case strikingly similar to

this matter. In Nader v. DeToledano, supra, the essential facts

developed on summary judgment motion were that a public

figure, Mr. Ralph Nader, gave a congressional subcommittee

certain information; that the subcommittee report found the

claims of Mr. Nader to be erroneous, but to have been ‘‘made in

good faith based on information available to him;’’ but that

nevertheless the journalist, Mr. Ralph DeToledano, wrote in his

column, ‘‘Nader falsified and distorted evidence to make his

case.’’ The appellate court, by vote of 2 to 1, reversed summary

judgment in favor of Mr. DeToledano, and ordered jury trial.

The disparity between the subcommittee report and the jour-

nalistic critique was considered enough evidence of actual

malice to resist summary judgment. Said the majority, in

language which we consider to be precisely appropriate:

**. . . we are convinced that the special protection afforded

press defendants in public figure libel actions does not

necessitate a dilution of the Seventh Amendment by skew-

ing the roles of judge and jury in summary judgment pro-

ceedings . . . we hold that the same principles applicable to

— '

normal summary judgment motions are applicable to such

motions when made in a public figure libel action . . . The

question to be resolved at summary judgment is whether

plaintiff’s proof is sufficient such that a reasonable jury

could find malice with convincing clarity, and not whether

the trial judge is convinced of the existence of actual

malice.’’

We ask this Court to determine on writ of certiorari that the

correct standard for summary judgment in public figure libel ac-

tions is that stated by the D.C. Court of Appeals in Nader v.

DeToledano, supra, and expressed in footnote 9 of the opinion

of the Chief Justice in Hutchinson v. Proxmire, supra.

6. = adopting the ‘‘footnote 9’’ approach in this case, the

United States Court of Appeals for the Second Circuit noted,

**Until more directly advised, we think that this neutral ap-

proach correctly states the rule as it is presently in force:

neither grant nor denial of a motion for summary judg-

ment is to be preferred. Defamation actions are, for pro-

cedural purposes, such as discovery . . ., or for summary

judgment, to be treated no differently from other actions;

any ‘‘chilling effect’’ caused by the defense of a lawsuit

itself . . . is simply to be disregarded, to have no force and

effect.’’

It is of importance that the country know whether the ‘‘foot-

note 9’’ approach is the law or not. It is noteworthy that so

distinguished a court as the Second Circuit appears to be uncer-

tain in some degree, but has merely made the assumption. Even

in Nader v. DeToledano, supra, there was a vigorous dissent.

There is considerable libel litigation in our state and federal

courts. If this point is not settled with a clear statement from

this Court, it takes no great amount of imagination to see that

the resulting uncertainty could cause a serious split of authority,

leading to contradictory decisions, hence a plethora of appellate

litigation consuming vast amounts of time, money, and energy

of lawyers, litigants, and judges. We submit also that the wise

statement of Lord Coke — ‘‘The known certainty of the law is

the greatest security of us all’? — particularly warrants review of

this Court on writ of certiorari.

7. A troublesome feature of the opinion of the Second Circuit

in this case is apparent confusion concerning the way the ‘‘foot-

note 9’’ approach should be applied. We believe that, if the dic-

tum of the Chief Justice in Hutchinson v. Proxmire, supra, is

the law, the denial of summary judgment would follow as a

matter of course.

In Nader v. DeToledano, supra, the mere contradiction be-

tween the legislative report and the journalistic commentary was

held to be sufficient evidence of actual malice to warrant jury

trial. As footnotes 1-2 hereinabove demonstrate, we have

precisely the same situation in this case: there is a sharp dispari-

ty between the remarks of the subcommittee chairman and the

published libel. The same kind of disparity prompted the

remarks of the Chief Justice in footnote 9 of Hutchinson v.

Proxmire, supra.

Yet, in this case, the Second Circuit found insufficient

evidence of actual malice as a matter of law, as if the ‘‘footnote

9’’ approach were accepted in name only, but in fact not at all.

This result was prompted by Judge Oakes’ conclusion of fact

that the ‘‘unquestioned methodology of the preparation of the

article exemplifies the highest order of journalism,”’ etc. Appen-

dix hereof, p. A-16. To reach this conclusion, Judge Oakes simp-

ly accepted at face value the affidavit of the journalist. At trial

we would contest this defense claim by evidence of objective

disparity between the admitted source of information and the

published libel. And we would attempt to impeach the

testimony of the journalist on cross-examination, with possible

aid of discovery, and by the testimony of our witness — not

only of the Plaintiff (Petitioner here), but of experts as set forth

in footnote 6 hereinabove. Cf. Arnstein v. Porter, supra. These

considerations, in our view, certainly warrant a jury trial in ac-

cordance with the Seventh Amendment.

=

Even assuming that the ‘‘footnote 9’’ approach is the law in

certain enough degree, there is plainly confusion over how the

principle should be applied to concrete facts. In short, the coun-

try needs unambiguous guidance and definition, lest the present

misunderstandings continue. The facts of this case provide a

very good illustration which this Court could use to teach.

For this additional reason, a writ of certiorari should go out.

Respectfully submitted,

JOHN REMINGTON GRAHAM

212 West Franklin Avenue

Minneapolis, Minnesota 55404

Telephone: 612-871-8885

PAUL STEPHEN BEEBER

781 Old Country Road

Plainview, New York 11803

JAMES K. SIMAKIS

One East 11th Avenue

Columbus, Ohio 43201

Telephone: 614-294-5144

Attorneys for Petitioner

APPENDIX

ide Mil ot,

APPENDIX A

UNITED STATES COURT OF APPEALS

For The Second Circuit

No. 470—September Term, 1979

(Argued December 12, 1979 Decided March 19, 1980)

Docket No. 79-7541

John Yiamouyiannis,

Appellant,

ips

Consumers Union of the United States, Inc.,

Appellee,

Before:

Mulligan, Oakes and Gurfein,*

Circuit Judges

Appeal from a judgment of the United States District Court

for the Southern District of New York, Richard Owen, Judge,

granting summary judgment to a libel defendant, after cross-

motions for summary judgment. Because the district court

found correctly that appellant failed to make the requisite show-

ing of ‘‘actual malice,’’ the judgment is affirmed.

* Judge Gurfein heard the argument on December 12, 1979, but

died unexpectedly shortly thereafter. He expressed agreement with the

result in this case, however.

pay. ee

John R. Graham, Minneapolis, Minn. (Paul S. Beeber,

Plainview, N.Y., Kirkpatrick W. Dilling, Chicago,

Ill., James K. Simakis, Columbus, Ohio, of counsel),

for Appellant.

Michael N. Pollet, New York, N.Y. (Karpatkin, Pollet &

LeMoult, New York, N.Y., Steven Delibert, of

counsel), for Appellee.

Oakes, Circuit Judge:

This appeal in a diversity libel action is from a summary judg-

ment for the defendant granted by the United States District

Court for the Southern District of New York, Richard Owen,

Judge. The plaintiff, John Yiamouyiannis, Ph.D., brought suit

against Consumers Union of the United States, Inc. (Con-

sumers Union) for libel said to have been contained in a two-

part series of articles appearing in appellee’s magazine, Con-

sumer Reports, in July and August of 1978. The articles, en-

titled Fluoridation: The Cancer Scare and The Attack on

Fluoridation—Six Ways to Mislead the Public, as their titles im-

ply, attacked as misleading and erroneous the claims made by

certain individuals and organizations that fluoridation causes

cancer, birth defects and other ills. Appellant claims that he was

defamed, particularly in the scientific community, but also in

the eyes ‘‘of his fellow countrymen to whom he has something

important to say’’ and ‘‘whom he serves and must convince.”’

We affirm the judgment.

Briefly stated, the underlying facts are these: Dr.

Yiamouyiannis is and for many years has been an active oppo-

nent of the fluoridation of public water supplies, and since 1974

has been a paid employee of the National Health Federation,

which is an organization that for over twenty years has been ac-

tively opposed to fluoridation. Dr. Yiamouyiannis has also

authored over fifteen articles on fluoride and is a coeditor of a

ae em

quarterly, Fluoride, published by the International Society for

Fluoride Research. He appeared actively before the Subcommit-

tee on Intergovernmental Relations and Human Resources of

The House Committee on Governmental Operations on

September 21 and October 12, 1977,' both to state his own

views on the dangers of fluoridation and to refute the arguments

of the National Cancer Institute (NCI) and various other

organizations that have taken the position that fluoridation is

not harmful and helps significantly in the prevention of dental

caries. These other organizations include the National Academy

of Sciences, the National Heart, Lung and Blood Institute, the

American Medical Association, the American Cancer Society,

and the American Dental Association.

The Consumer Reports article was written by Joseph R.

Botta, a senior editor on the magazine staff. Botta is a profes-

sional journalist who has been a scientific writer for fifteen

years, having worked for the Shell Oil Company from 1959 to

1971, and for Consumers Union in the environmental and

health areas since 1972. Botta became interested in the topic of

the campaign against fluoridation after having read an article in

the New England Journal of Medicine—Walsh, Fluoride, Slow

Diffusion of a Proved Preventive Measure, 296 New England J.

Med. 1118 (1977)—and an article in a leading British medical

journal—Doll & Kinlen, Fluoridation of Water and Cancer

Mortality in the USA, Lancet, June 18, 1977, at 1300. But it was

only when the House Subcommittee held hearings on the effects

of fluoridation and its possible link to cancer that the decision

to write and publish an article on the subject was made. Botta

obtained a copy of the transcript of the hearings before the

' See The National Cancer Program (Part 2.—Fluoridation of

Public Drinking Water); Hearings Before the Subcomm. on In-

tergovernmental Relations and Human Resources of the House

Comm. on Governmental Operations, 95th Cong., Ist Sess. (1977)

(hereinafter ‘‘Hearings Record’’).

— -

House Subcommittee and reviewed some standard medical

reference works, which led him to the World Health Organiza-

tion’s 1970 report, Fluorides and Human Health, and to other

studies on fluoridation. His conclusion from these studies, as

stated in his affidavit, was that there was ‘‘no acceptable scien-

tific evidence of any kind that the practice of fluoridating drink-

ing water at approximate levels had any deleterious effects

whatever’’ (emphasis in original).

In the course of Botta’s research he also made reference to

studies by the British Royal College of Physicians, by the Royal

Statistical Society and by investigators at Oxford University.

The Subcommittee hearings record contained a schedule, set out

in the margin, of studies between 1954 and 1977 showing no

association between cancer incidence or deaths and fluoride.’

Accordingly, Botta was led by ‘‘the overwhelming weight of

scientific evidence’’ to have serious doubts as to the credibility

to be accorded to Dr. Yiamouyiannis’s work—two unpublished

versions of which, dating from July and December of 1975,

were criticized by the National Cancer Institute. Hearings

Record at 98-101, 110-113, 203-208. A more recent version of

appellant’s work, presented in England in May of 1977 and

published in the magazine Fluoride, was incorporated in the

hearings record. Jd. at 18-40.

Association

with

Year and institution Method fluoride

1954: Division of Dental Public Cancer deaths in U.S.

Health (USPHS) ..... ES ae None

1962: Ministry of Health, Great Cancer deaths in English

Se Cities (IN)... ccccccess Do.

1974: Medical Research Council Cancer deaths in English

(G.B.), London School _ cities (N) (reanalysis of

ee 1962 study) .......... Do.

— * Po

A brief review of the Consumer Reports articles is as follows:

The first article, published in July 1978, relates how Dr.

Yiamouyiannis’s colleague, Dean Burk, Ph.D., an American

biochemist, helped to kill a proposal before the Dutch Parlia-

ment to fluoridate water supplies, by virtue of a television in-

tereview in Holland in 1976 in which he told the audience that

‘*fluoridation is a form of public mass murder.’’ The article

discusses the defeat in Los Angeles and hundreds of other

American communities of fluoridation proposals, and mentions

the House Subcommittee hearings. What emerged from the

testimony, the article says, was ‘‘an unmistakable sense that

millions of Americans are being grossly misled about fluorida-

tion. The article then describes the initial investigation in the

1930s and 1940s resulting in the conclusion that fluoridation

1975: Oxford University (Eng- Cancer incidence in Eng-

BO eck cued soaeasae lish cities and rural

GING 6A on os eeinss Do.

PtsxksQcticentaaeune Cancer incidence in cities

and rural areas of New

York, Connecticut,

Holland, and New

Zealand (A) .........

1976: National Cancer Institute Cancer deaths in U.S.

cé.c0s idiees sees counties (N) ......... Do.

NSS on. es ees Coan Cancer deaths in U.S.

counties (A) ......... Do.

BD va-6:uwe's wit narek Maat Cancer incidence in U.S.

| Ee Do.

1977: National Heart, Lung, Cancer deaths in U.S.

and Blood Institute’ cities(A)............

Pe peckeabectines Do.

1977: Center for Disease Con-

trol (USPHS)........ AO: nies erenewh eked see Do.

1976: Royal College of Physi-

cians (England) ...... Review (N & A) ........ Do.

1977: National Academy of

Sciences (U.S.)....... ae cs docked sk ol pA Do.

Hearings Record at 101 (‘‘Do.’’ means ‘‘ditto’’).

—

helps prevent dental cavities, and also refers to the opposition

that gradually developed. This opposition is now led by the Na-

tional Health Federation, whose roots, the article says, ‘‘run

deep into the soil of medical quackery.’’’ The article goes on to

say that in 1974, the NHF decided to ‘‘ ‘break the back’’’ of

fluoridation efforts and ‘‘hired Dr. Yiamouyiannis to do the

job.’’ It says that he was successful in influencing the debate in

1974 in Los Angeles, and that his July 1975 study with Dr. Burk

(who is said to be a leading advocate of laetrile along with the

NHF), ‘‘failed [according to the NCI] to take into account

widely recognized risk factors known to affect the death rate.”’

It adds that a later December 1975 study was even more ‘‘ama-

teurish,’’ according to an NCI official, and ignored ‘‘the most

fundamental factors involved in cancer mortality rates—age,

sex and race.’’ The article reports that Drs. Burk and

Yiamouyiannis were successful in Holland, but unsuccessful in

England, and points out that ‘‘independent investigations by

seven of the leading medical and scientific organizations in the

English-speaking world have unanimously refuted the National

Health Federation’s cancer claims.’’ See note 2 supra.

The second article, published one month later, refers to other

claims that fluoridation causes harm, yet nowhere mentions Dr.

Yiamouyiannis, Dr. Burk, or the National Health Federation in

refuting theories that fluoride is a poison, causes birth defects,

is mutagenic, causes allergic reactions, causes cancer in animals,

and contributes to heart disease. However, the article does state

> According to the article in 1963 the FDA released a report on the

NHF that said in part:

The stated purpose of the federation is to promote ‘‘freedom

of choice”’ in health matters. This record shows that what this

frequently means is freedom to promote medical nostrums and

devices which violate the law. From its inception, the federation

has been a front for promoters of unproved remedies, eccentric

theories and quackery.

—_*

that ‘‘every type of misrepresentation known to Disraeli’’ has

‘*been used to attack fluoridation,’’ referring te che ‘‘mislead-

ing information’’ that appears regularly in a paper called the

National Fluoridation News, and also states the the ‘‘entire

gamut of hokum’’ has recently been published in an issue of the

Cancer Control Journal, a pro-laetrile magazine based in Los

Angeles. The article concludes by saying that the ‘‘simple truth

is that there is no ‘scientific controversy’ over the safety of

fluoridation,’’ and that the ‘‘survival of this fake controversy

represents, in CU’s opinion, one of the major triumphs of

quackery over science in our generation.”’

Appellant’s unverified complaint in four counts, each seeking

two million dollars in damages, complains of defamation main-

ly by innuendo. In essence, appellant reads the articles as saying

that his work is ‘‘grossly and irresponsibly misleading’’ the

American people; that fluoridation is absolutely and unques-

tionably safe; that appellant sold his scientit c integrity and ob-

jectivity to contrive a deliberately false case against fluorida-

tion; that appellant’s work is incompetent ‘‘claptrap’’ and

overlooks fundamental risk factors that elementary principles

require; that appellant and Dr. Burk have insisted both in

America and Europe that fluoridation is mass murder; and that

they are men of no credibility or honor. All of this is said to be

false and to have been published with the purpose of destroying

the appellant’s reputation with ‘‘willful or reckless disregard of

the facts.’”’

In moving for a summary judgment, appellee submitted Mr.

Botta’s affidavit as well as the House Subcommittee hearings.

The affidavit set forth Botta’s account of research, as above

stated, which was undisputed, as well as his investigation of the

background and qualifications of Drs. Yiamouyiannis and Burk

and his consuliants before publication, also undisputed. These

consultations were with (1) the Consumers Union library staff,

to determine the reliability of supporting references, (2) the

technical department, (3) an in-house medical consultant, (4) an

ee

outside medical advisor, (5) a dental consultant, (6) a Ph.D with

experience in epidemiology and the safety of water supplies, (7)

a psychiatrist who in connection with health fraud had in-

vestigated and written about the National Health Federation,

(8) the head of the Environmental Studies Section of the En-

vironmental Epidemiology Branch of NCI, and (9) a professor

of biochemistry of the University of Minnesota, all of whom,

after some suggested changes that were incorporated into the

final version of the article, agreed that it was reliable and

accurate.

Dr. Yiamouyiannis’s counteraffidavit takes particular issue

with the statement in the first article that he and Dr. Burk had

ignored the most fundamental risk factors-age, sex and

race—and says that this related only to their 1975 preliminary

studies, whereas their later works Cid take into account.‘ The

* The Hearings Record at 203-04 contains the following testimony,

as to the later 1977 paper, from Dr. Robert N. Hoover, Head, En-

vironmental Studies Section, Environmental Epidemiology Branch,

Division of Cancer Cause and Prevention of the National Cancer

Institute:

Mr. Fountain. Dr. Newell, Mr. Goldhammer informs me

that he asked NCI to review and to analyze a paper ‘‘Fluorida-

tion and Cancer’’ written by Dr. Yiamouyiannis and Dr. Burk

and published in the publication Fluoride. Has NCI done this?

Dr. Newell. I will defer to Dr. Hoover.

Dr. Hoover. Yes, I have, sir.

Mr. Fountain. Would you give your expert assessment of the

paper from your point of view?

Dr. Hoover. The paper attempted to address some of the

criticisms that have been directed at their earlier studies in that

they had not controlled for age, sex and race, differences be-

tween the two areas.

In the paper, they did not control for race and they did not

think they had to. They attempted to control for age by using

very broad age categories.

ye

counter-affidavit also says that data and procedures of NCI

were shown in Congress to be flawed by critical errors and omis-

sions and that it was this data that was copied in England,

thereby showing ‘‘the political intrigue of the current cover-up

of the fluoridation cancer link.’’’ He goes on to say that the

So, in essence, they did not address the criticisms and they did

not control for race, and they did not adequately control for

age.

Therefore, I think the same criticisms that applied to the

earlier works, such as inadequate control for differences be-

tween the two groups of cities, apply to their more recent effort.

In fact, even the crudeness of the analysis that they have done

contributes to our opinion that there is, in fact, no association.

In general, there is a dictum in epidemiology. The crudest

control is no control at all. That is using one age category. If you

do a very crude control by splitting into several groups and you

knock an association way down, it indicates to epidemiologists

that maybe you need to achieve very fine control. That is, you

need to take the controlling categories down to a finer level in

order to see what happens to the association.

* The Hearings Record at 208 contains the following:

Dr. Hoover. Dr. Yiamouyiannis has demeaned some fairly

renowned scientists in Great Britain by saying that they put their

names on our publications. That is clearly not true. If you read

their materials, you will see that it is not true. They used dif-

ferent standards than we did and they used truly elegant analyses

which went much beyond what we did in our instant reanalysis.

They did use the same set of data, however, and, therefore, they

had the 1.5 percent error we did. We transmitted that informa-

tion to them and then called them to see if correction of this er-

ror changed their conclusions.

— A-10 —

seven independent investigations alluded to in the Botta article

did not address the most recent and comprehensive study by Dr.

Burk and the affiant appearing in F/uoride magazine, so that his

work had not been ‘‘refuted.’’* Other issues with regard to the

scientific viability of the fluoridation controversy are detailed.

Judge Owen below granted the motion for summary judg-

ment, concluding that appellant had failed to meet his burden,

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

establishing, ‘‘by clear and convincing evidence, at least a

genuine issue of fact as to whether the articles were published

with ‘actual malice,’’’ i.e., knowledge of falsity or reckless

disregard of the truth. To make this showing, appellant relied

mainly on the theory that the article was directly contradicted by

one of the principal sources relied on by the publisher, the

House Subcommittee report itself. But the judge held that no

serious showing was made that either the author or the editor of

the article ‘‘had the slightest doubt as to [the article’s] truth and

accuracy.’’ Because of what it considered an absence of

evidence of subjective awareness of probable falsity, see Gertz

I talked to Dr. Kinlen of Oxford on the phone, and I wish I

could do the British accents for you, but Dr. Kinlen said, ‘‘Of

course, it makes no difference at all.’’

Dr. D.J. Newell of the Royal Statistical Society said he had

written me a letter but he did not call me because there was

nothing urgent about it and the correction really made no dif-

ference in their conclusions either.

So, I think you can rest assured that the conclusions reached

by Oxford and by the Royal Statistical Society are as they were

published.

The error was not one of addition but of geography in that the NCI

erroneously included all the deaths from Suffolk County (14,487)

rather than the City of Boston (14,272). /d. at 81, 208. This made a

difference of 1%-2% Id.

* But see notes 4 and 5 supra.

— A-ll —

v. Robert Welch, Inc., 418 U.S. 323, 334 n.6 (1974) (citing Sr.

Amant v. Thompson, 390 U.S. 727, 731 (1968)), the court was

compelled to award summary judgment.

Discussion

The rule of New York Times Co. v. Sullivan, supra, 376 U.S.

at 279-80, is that, constitutionally, a public official cannot

recover for a defamatory statement relating to his official con-

duct absent proof that the statement was made with ‘‘actual

malice’ as defined therein and subsequently in St. Amant v.

Thompson, 390 U.S. 727, 731 (1968). This rule was expanded to

cover ‘‘public figures,’’ at least on matters of public interest, in

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). In Gertz v.

Robert Welch, Inc., supra, 418 U.S. at 344-48, however, the

Court declined to accept what the late Harry Kalven referred to

as the ‘‘invitation to follow a dialectic progression,’’’ and re-

fused to extend Sullivan to private individuals. In holding that

an attorney representing the family of the victim in a police

shooting was not a public figure, the Court, after noting that

public officials and public figures have greater access to the

channels of effective communication than private individuals,

added that most public figures have ‘‘voluntarily exposed

themselves to increased risk of injury from defamatory false-

hood concerning them.’’ /d. at 345. The Court described two

ways in which people may be classified as ‘‘public figures’’:

For the most part those who attain this status have as-

sumed roles of especial prominence in the affairs of socie-

ty. Some occupy positions of such persuasive power and

influence that they are deemed public figures for all pur-

poses. More commonly, those classed as public figures

have thrust themselves to the forefront of particular public

” Kalven, The New York Times Case: A Note on ‘‘The Central

Meaning of the First Amendment,’’ 1964 Sup. Ct. Rev. 191, 221.

— A-12 —

controversies in order to influence the resolution of the

issues involved. In either event, they invite attention and

comment.

Id.*

On this basis, Mrs. Firestone, the plaintiff in a contested

Palm Beach divorce case that had allegations or. both sides of

adultery and was a cause celebre in Palm Beach if not in all of

Florida. was held not to be a public figure. Time, Inc. v.

Firestune, 424 U.S. 448, 453-55 (1976). More recently, the

Court held that a researcher of animal aggressive behavior, who

had received federal funds for his research and received Senator

Proxmire’s ‘‘Golden Fleece Award,’’ was not a public figure.

Hutchinson v. Proxmire, 47 U.S.L.W. 4827, 4833-34 (U.S.

June 26, 1979). This same is true of an individual who, in the

late 1950s, was held guilty of contempt and given a suspended

sentence with attendant publicity, for failure to appear before a

grand jury investigating Soviet espionage. Wolston v. Reader’s

Digest Association, 47 U.S.L.W. 4840, 4841-42 (U.S. June 26,

1979). This person had in the interim returned to private life. In

each case the Gertz formulation quoted above was relied upon

for the result reached. Firestone, supra, 424 U.S. at 454-55;

Hutchinson, supra, 47 U.S.L.W. at 4833; Wolston, supra, 47

U.S.L.W. at 4841-42.

Under that formulation, we have no doubt that appellant is a

‘*public figure.’’ While he is not one of those occupying a posi-

tion of persuasive power and influence so as to be deemed a

public figure for all purposes, he clearly is a person who has

‘*thrust’’ himself ‘‘to the forefront’’ of a particular public con-

troversy—that pertaining to fluoridation—‘‘in order to in-

fluence the resolution of the issues involved,’’ thereby in Gertz’s

words ‘‘invit[ing] attention and comment.’’ 418 U.S. at 345.

* See Note, The Editorial Function and The Gertz Public Figure

Standard, 87 Yale, L.J. 1732, 1733 (1978) (describing two ‘‘branches’’

of Gertz rule).

— A-13 —

Indeed, we do not understand appellant to dispute this; Judge

Owen below stated that he was ‘‘an admitted public figure.’’

And appellant’s brief on appeal does not claim otherwise,

though no express concession is made. But if there were any

doubt about it, appellant’s own complaint and affidavits would

resolve it. His complaint notes that he is ‘‘Science Director of

the National Health Federation, an organization dedicated to

the promotion of health freedoms throughout the United

States.’’ Complaint 41 (emphasis supplied). It states that his

work has been made ‘‘a matter of public record’’ in a ‘‘scientific

paper,’’ in the House Subcommittee Hearings, and in hearings

before the Allegheny County Court of Common Pleas.’ Jd. 42.

His affidavit states that he is a ‘‘recognized expert on the

biological effects of fluoride,’’ ‘‘has authored over fifteen ar-

ticles on fluoride,’’ and has ‘‘demonstrated to [Congressmen]

that . . . the National Cancer Institute made . . . significant er-

ror(s).’’ Affidavit of Dr. Yiamouyiannis 44 1, 6. His statement

pursuant to Local Rule 9(g) does not deny the following state-

ments by appellee: that he ‘‘is and for many years has been an

active and vociferous opponent of’’ fluoridation; that ‘‘since

1974, has been a paid employee of the National Health Federa-

tion, which has itself for over two decades been actively and

vociferously opposed to fluoridation’’; that he has produced

studies obtaining broad distribution, including one in the City

of Los Angeles, at a time when the voters of that city were to

pass upon a water fluoridation referendum; that he has volun-

tarily sought and obtained the very widest publicity for himself

and his views, in newspaper and magazine articles, radio and

television broadcasts, public speeches, and other public forums;

that he has testified at length as to his views, in various judicial

* Exhibit 13, attached to appellant’s affidavit, is a brief submitted

to the Court of Common Pleas of Allegheny County, Pennsylvania in

Aitkenhead v. Borough of West View, No. DG 4565-78, a case in

which the court on the strength of the Burk-Yiamouyiannis study of

1977 preliminarily enjoined fluoridation under a permit granted by the

state Department of Environmental Resources ten years before.

—_—< oe

proceedings, and in the Subcommittee hearings; and that he has

maintained for the past five years that the reason for his

discharge as an employee of the Chemical Abstracts Service was

his notoriety as an opponent of fluoridation.

In the light of the foregoing, appellant is clearly a public

figure and the ‘‘actual malice’’ test of Sullivan therefore clearly

applies.

Appellant’s principal claim on appeal is that the district court

erred in granting summary judgment because it thought, er-

roneously, that in libel cases summary judgment ‘‘ ‘may well be

the ‘‘rule’’ rather than the ‘‘exception.’’’’’ District Court Opin-

ion at 2 (quoting Oliver v. Village Voice, Inc., 417 F. Supp. 235,

237 (S.D.N.Y. 1976), which in turn quoted Guitar v. Westing-

house Electric Corp., 396 F. Supp. 1042, 1053 (S.D.N.Y. 1975),

aff'd mem., 538 F.2d 309 (2d Cir. 1976)). While this view of the

district court had considerable support in the case law at the

time it was expressed, e.g., Trentler v. Meredith Corp., 455 F.2d

255, 257 n.1 (8th Cir. 1972); Washington Post Co. v. Keogh,

365 F.2d 965, 967-68 (D.C. Cir. 1966), cert. denied, 385 U.S.

1011 (1967), footnotes in the recent Hutchinson and Wolston

cases in the Supreme Court raise serious doubt as to the con-

tinued legal viability of the proposition, expressed in Keogh,

that ‘‘[t]he threat of being put to the defense of a

lawsuit . . . may be as chilling to the exercise of First Amend-

ment freedoms as fear of the outcome of the lawsuit itself.’’ Jd.

at 968. Footnote 9 of the Chief Justice’s opinion in Hutchinson

not only states ‘‘doubt’’ about the supposed ‘‘rule’’ (supporting

summary judgment), but takes almost the opposite position:

Considering the nuances of the issues raised here, we are

constrained to express some doubt about the so-called

“‘rule.’’ The proof of ‘‘actual malice’’ calls a defendant’s

state of mind into question, New York Times ~. Sullivan,

376 U.S. 254 (1964), and does not readily lend itself to

summary disposition. See 10 Wright & Miller, Federal

Practice and Procedure § 2730, at 590-592. Cf. Herbert v.

— A-15 —

Lando, ___. U.S. ___ (1979). In the present posture of

the case, however, the propriety of dealing with such com-

plex issues by summary judgment is not before us.

47 U.S.L.W. at 4830 n.9. Wolston refers to this footnote, but

again does not reach the question. 47 U.S.L.W. at 4831 n.3.

And at least one appellate court has already said that ‘‘the same

principles applicable to normal summary judgment motions are

applicable to such motions when made in a public figure libel

action.’’ Nader v. de Taledano, 408 A.2d 31, 50 (D.C. 1979),

cert. denied, 48 U.S.L.W. 3536 (U.S. Feb. 19, 1980).

Until more directly advised, we think that this neutral ap-

proach correctly states the rule as it is presently in force: neither

grant nor denial of a motion for summary judgment is to be

preferred. Defamation actions are, for procedural purposes,

such as discovery, see Herbert v. Lando, 99 S. Ct. 1635 (1979),

or for summary judgment, to be treated differently from other

actions; any ‘‘chilling effect’’ caused by the defense of a lawsuit

itself, see Herbert v. Lando, 568 F.2d 974, 980 (2d Cir. 1977)

(Kaufman, C.J., for the court), rev’d, 99 S. Ct. 1635 (1979); id.

at 993-94 (Oakes, J., concurring); Washington Post Co. v.

Keogh, supra, 365 F.2d at 968, is simply to be disregarded, to

have no force and effect. We must therefore now determine

whether summary judgment was proper under this standard.

Our job is made easier because both parties take the position

that the evidence on actual malice has been fully marshalled.

Since appellant does not seek or suggest the need of further

discovery, the ‘‘state of mind’’ problem referred to in the Chief

Justice’s Hutchinson footnote is not present.

But this does not mean that our preliminary analysis is at end.

The rule of Sullivan, in addition to requiring a defamation

plaintiff to prove ‘‘actual malice’’ in the case of public officials

and public figures, requires that proof of actual malice be with

‘convincing clarity,’’ 376 U.S. at 285-86, a standard which is

‘*intermediate between the normal ‘preponderance of the evi-

ne Anl§ —

dence’ civil standard and the ‘beyond the reasonable doubt’

criminal standard,’’ Nadar v. de Toledano, supra, 408 A.2d at

49. See also Gertz v. Robert Welch, Inc., supra, 418 U.S. at 342

(requiring ‘‘clear and convincing proof that the defamatory

falsehood was made with knowledge of its falsity or with reck-

less disregard for the truth’’). Accepting this rule, there remains

the question what standard the court should use in applying the

law to the facts. In a case where the defendant has moved for

summary judgment on the issue of actual malice and the plain-

tiff claims that there remain material factual disputes, the court

decides the materiality of the disputed facts by accepting the

plaintiff’s version and applying the actual malice standard. This

standard requires a clear and convincing showing, which may be

by circumstantial evidence, of defendant’s actual state of

mind—either subjective awareness of probable falsity or actual

intent to publish falsely. Therefore, a judge in denying a defen-

dant’s summary judgment motion must conclude that, based on

the evidence asserted in the plaintiff’s affidavits, ‘‘a reasonable

jury could find malice with convincing clarity.’’ Nadar v. de

Toledano, supra, 408 A.2d at 49 (emphasis in original); see

Guam Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d

438, 441 (9th Cir.), cert. denied, 419 U.S. 872 (1974). Under this

standard we are convinced, as was Judge Owen below, that no

reasonable jury could find with convincing clarity on the facts in

this record that appellee, or its agents Botta and his editors and

consultants, acted with actual malice in the Sullivan-St. Amant

sense of that much-abused term.

It is clear that appellee, through its agents, made a thorough

investigation of the facts. Scientific writings and authorities in

the field were consulted; authoritative scientific bodies speaking

for substantial segments of the medical and scientific com-

munity were investigated. The unquestioned methodology of

the preparation of the article exemplifies the very highest order

of responsible journalism: the entire article was checked and re-

checked across a spectrum of knowledge and, where necessary,

changes were made in the interests of accuracy.

— A-17 —

Appeliant’s principal claim on appeal is that Botta’s credi-

bility is contested by circumstantial evidence. The House Sub-

committee hearings, he argues, themselves show actual malice

because they show (a) that ‘‘the reality of the fluoridation-

cancer controversy among competent, learned, serious-minded

scientists is beyond question,’’ (b) that ‘‘Plaintiff did adjust his

crude data for age, race, and sex,’’ and (c) that he ‘‘is a promi-

nent, well-recognized scientist in the area of fluoridation.’’ Ap-

pellant also argues that, after publication of the articles but

before suit and before a licensed republication in the Journal of

the California Dental Association in January 1979, he made

available to Consumers Union the 51-page memorandum sub-

mitted in the Allegheny County case, mentioned earlier, note 9

supra. This ‘‘rebroadcast’’ of the libels, he contends, shows

malice.

Treating these points seriatim, even if in the opinion of some

there is a real fluoridation-cancer controversy, this does not

prove actual malice on the part of Consumers Union. Indeed,

appellee’s expressed ‘‘opinion’’ to the contrary, as such, is not

defamatory at all, since false or even pernicious opinions are not

actionable. Gertz v. Robert Welch, Inc., supra, 418 U.S. at

339-40; Buckley v. Littell, supra, 539 F.2d at 893-94. It is only

through innuendo that anything defamatory can be read into

the statement that there is no ‘‘scientific controversy,’’ about

fluoridation and cancer. We will accept for the purposes of this

case appellant’s argument that the statement contains an in-

nuendo that appellant’s studies and statements have been am-

ateurish and not scientifically sound, are grossly misleading,

and amount to ‘‘claptrap.’’ This innuendo casts doubt upon ap-

pellant’s scientific competence and, we will assume, might be

thought to raise a triable issue of fact as to whether appellant

was defamed. But the House Subcommittee hearings do not on

their face demonstrate that appellee was acting with reckless dis-

regard of the facts, much less with knowledge of falsity. Dr.

Yiamouyiannis and his colleague Dr. Burk have certain qualifi-

cations (though the former’s claim to being an epidemiologist

— A-18 —

(Complaint 41) is not substantiated by the list of his qualifica-

tions set forth at pages 194-96 and 579 of the Hearings Record).

But the hearings give clear support for the proposition in the ar-

ticle that ‘‘independent investigations by seven of the leading

medical and scientific organizations in the English-speaking

world have unanimously refuted the National Health Federa-

tion’s cancer claims.’’ See Hearings Record at 90-91, 100-01;

note 2, supra. This evidence is sufficient to exonerate appellee

on the issue of actual malice with respect to the general subject

of appellant’s professional competence. Even if, as appellant

argues, these seven studies did not address appellant’s later and

more sophisticated July 1977 article, the hearings contain

evidence that this study was seriously flawed as well. See note 4

supra.

More specifically, with respect to appellant’s two 1975

studies, the article stated that the first failed to take into ac-

count ‘‘widely recognized risk factors’’—ethnic, demographic

and others'°—and second was said to be ‘‘even more amateur-

ish’’—ignoring age, sex, and race.'' Appellant’s affidavit makes

much of these remarks. But appellant does not deny that his

1975 articles did not take these risk factors into account—ob-

viously there could be no actual malice if the statements were

true. Moreover, his complaint that the Consumer Reports arti-

cle did not address his subsequent 1977 article does not indicate

either defamation or actual malice, especially since the later

study was also suspect.'?

'° This was substantiated by the Hearings Record at 110-11.

'' This was substantiated by the Hearings Record at 111-13.

'? The Hearings Record substantiates that it was. See note 4 supra.

See also Hearings Record 218 (letter from D. J. Newell to Dr. J.

Yiamouyiannis, Oct. 27, 1977).

— =

In addition, the complaint argues that the Consumers Union

article did not fairly show that the NCI had made a serious

mathematical error, which, combined with a refusal to disclose

certain procedures to appellant, amounted to a ‘‘cover-up of the

fluoridation-cancer link.’’ (Aff. of Dr. Yiamouyiannis 4 10).

We find nothing, however, after perusal of the hearings record,

that indicates that appellee’s failure to discuss an NCI ‘‘cover-

up’’ is defamatory of Dr. Yiamouyiannis, much less made with

actual malice. The error was apparently minor,'’ and the failure

to disclose was merely described in Botta’s article as ‘‘less

sinister than some members of the British Parliament were later

led to believe’’—a matter of opinion, fair for public comment.

Finally, we find nothing in the memorandum in the Allegheny

County case, submitted to appellee after publication but before

a republication, that is sufficient to show that appellee acted

with actual malice. The argument in the memorandum itself is

based principally on the studies of appellant and his NHF col-

leagues, and therefore is hardly sufficient to demonstrate that

Botta or the others at Consumers Union who allowed the repub-

lication either knew that their criticisms of appellant were false,

or were reckless concerning that question.

In short, with respect to any portions of the alleged

defamatory matter that are not already protected as statements

of opinion, no showing has been made that they were published

with actual malice, let alone a showing that achieves ‘‘convinc-

ing clarity.’’ The order granting summary judgment must there-

fore be affirmed.

Judgment affirmed.

'> See notes 5 and 12 supra.

— A-20 —

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

78 Civ. 4721

John Yiamouyiannis, Ph.D.,

Plaintiff,

-against-

Consumers Union of United States, Inc.,

Defendant.

MEMORANDUM AND ORDER

OWEN, District Judge

This libel action arises out of the public controversy concern-

ing the safety of fluoridation of public water supplies, a

measure that has been widely instituted in the belief it furthers

dental health. Plaintiff, John Yiamouyiannis, is a prominent

opponent of fluoridation, and has conducted and publicized

studies purporting to establish a link between fluoridation and

increased cancer death rates. He claims he was defamed in two

articles appearing in the July and August 1978 editions of defen-

dant’s magazine, Consumer Reports. The articles defend

fluoridation as a valuable dental health measure, and severely

criticize as baseless and irresponsible the charges, by plaintiff

and others, that fluoridation can cause dangerous side effects,

such as cancer.

Both sides move for summary judgment. On these motions,

the burden is squarely on plaintiff, an admitted public figure, to

establish, by clear and convincing evidence, at least a genuine

issue of fact as to whether the articles were published with ‘‘ac-

tual malice’ within the meaning of New York Times Co. v.

— A-2!1 —

Sullivan, 376 U.S. 254 (1964).' Rinaldi v. Holt, Rirehardt &

Winston, Inc., 42 N.Y.2d 36S. 384-85. cert. denied, 434 U.S.

969 (1977); Reliance Insurance Co. v. Barron’s, 442 F.Supp.

1341 (S.D.N.Y. 1977). While summary dismissal of actions at

early stages in litigation is generally disfavored, see Newman v.

Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir.

1975), in libel actions it ‘‘may well be the ‘rule’ rather than the

‘exception.’’’ Oliver v. Village Voice, Inc., 417 F.Supp. 235,

237 (S.D.N.Y. 1976), citing Guitar v. Westinghouse Electric

Corp., 396 F.Supp. 1042, 1953 (S.D.N.Y. 1975), aff’d mem.,

538 F.2d 309 (2d Cir. 1976). This policy in favor of affording

summary relief to defendants in libel actions stems from a

recognition of the need to avoid the ‘‘chilling effect’’ on free

speech and press such suits pay have. See Meeropel v. Mizer,

381 F.Supp. 29, 32 (S.D.N.Y. 1974), aff’d 560 F.2d 1061, 1966

(2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978), and cases

cited therein. It seems particularly appropriate to guard against

any obstacle to the free flow of scientific debate where the truth

or falsity of specific assertions may elude us for generations.

To publish a statement with ‘‘actual malice’’ is to publish

**with knowledge that it was false or with reckless disregard of

whether it was false or not.’” New York Times v. Sullivan, 376

U.S. at 280. It is established beyond dispute that actual malice

may not be inferred merely from the false or defamatory con-

tent of the statement (id. at 272-73), nor from a lack of in-

vestigation before publishing, St. Amant v. Thompson, 390

U.S. 727, 731-32 (1968). Rather, ‘‘reckless disregard of the truth

[means] subjective awareness of probable falsity; ‘There must

be sufficient evidence to permit the conclusion that the defen-

dant in fact entertained serious doubts as to the truth of his

publication.’’’ Gertz v. Welch, 418 U.S. 323, 335 n.6, quoting

St. Amant v. Thompson, 390 U.S. at 431 (1968).

' Since the question of ‘‘actual malice’’ is determinative here, there

is no need to consider the numerous other bases for summary judg-

ment offered by defendant.

_

To establish actual malice, Mr. Yiamouyiannis relies on the

following theory. By defendants own admission, the primary

source of information for the Consumer Reports articles was

the record of 1977 Congressional subcommittee hearings on the

safety of fluoridation, at which Mr. Yiamouyiannis testified.

(Defendant’s Exhibit C). According to Mr. Yiamouyiannis, the

subcommittee hearing record establishes conclusively that his

research and studies showing a cancer-link in fluoridation have

not been refuted by any reputable authorities. Therefore, the

statements in the Consumer Reports articles pointing out

serious flaws in Mr. Yiamouyiannis’ studies and data could not

have been published with any faith in their veracity. Specifical-

ly, Mr. Yiamouyiannis refers to statements in the July article

that his studies have been refuted by the National Cancer In-

stitute because they failed to account for the most fundamental

factors involved in cancer mortality rates—age, sex, and race.

He states that the Congressional record shows his studies did ac-

count for these factors. In essence, therefore, plaintiff claims

that the patent falsity of the content of the articles, directly con-

tradicted in the sources relied on by their publisher, is evidence

of actual malice.

The foregoing allegations are, however, grossly inadequate to

raise even an inference of actual malice, much less the clear and

convincing proof necessary to survive a motion for summary

judgment. There is overwhelming evidence in defendants af-

fidavits, unrebutted by plaintiff, that the articles were prepared

in an conscientious and professional manner after a thorough

review of reputable sources and standard reference works on

medicine and science. No serious question is raised that either

the author or the editors who reviewed and approved the articles

for publication had the slightest doubt as to their truth and

accuracy.

~ hat —

Without contradicting any of these facts, plaintiff relies en-

tirely on the claimed falsity of the statements to support his

claim of actual malice. In light of the clear and weighty prece-

dent rejecting such an approach, see New York Times v.

Sullivan, 376 U.S. at 279-80, the suggestion is strong that plain-

tiff’s object in bringing this action is to use this court to

discourage the publication of opposing views. Needless to say, it

is in the public interest for the debate on the safety of fluorida-

tion to proceed in as free and open a manner as possible,

without the threat of libel suits inhibiting the publication of

conflicting studies and commentary.

In conclusion, since plaintiff has adduced no evidence to

show actual malice on the part of defendants in publishing the

two articles in question, summary judgment is granted to defen-

dant and is denied as to plaintiff.

So Ordered.

May, 30, 1979.

Richard Owen

United States District Judge