Petition — Miskovsky v. Oklahoma Publishing Co.

Supreme Court of the United States *

OcTOBER TERM, 1982

GEORGE MISKOVSKY,

. Petitioner,

THE OKLAHOMA PUBLISHING COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

BRADLEY G. MCDONALD

Counsel of Record

JAMES L. LYONS

JOHN F. KARL, JR.

1919 Pennsy!vania Avenue

Suite 300

Washington, D.C. 20006

(202) 338-7800

EVERETT J. SWEENEY

E. JoE LANKFORD

803 South Peters

Norman, Oklahoma 73069

(405) 360-2254

CAROLL E. GREGG

830 Hightower Building

Oklahoma City, Oklahoma 73102

(405) 235-1375

Attorneys for Petitioner

Of Counsel:

DAvip A. ANDERSON

4111 Shoal Creek Blvd.

Austin, Texas 78756

(512) 471-5151

WILSON - Eres Printine Co.. Inc. - 789-0096 - WasHINGTON. D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

1. Does the United States Constitution supplant state

defamation law on the issues of defamatory meaning,

opinion, and burden of proof as to truth?

2. Assuming the editorial cartoon was defamatory and

a statement of fact, was there sufficient evidence of

actual malice under the standard of New York Times v.

Sullivan for the editorial cartoon to be submitted to the

jury?

3. Assuming expressions of pure opinion are constitu-

tionally protected under Gertz v. Welch, was there suffi-

cient evidence of undisclosed defamatory facts in the

three articles and in the editorial for the issue of defama-

tion to be submitted to the jury?

4. Does the United States Constitution require a bal-

ancing between the rights of the media defendant and the

rights of candidates for public office to freedom of speech

and protection of reputation?

(i)

OPINION AND ORDER BELOW

JURISDICTION .

I.

II.

III.

TABLE OF CONTENTS

THIS COURT SHOULD GRANT REVIEW

BECAUSE THE DECISION OF THE OKLA-

HOMA SUPREME COURT RAISES AN IM-

PORTANT FEDERAL QUESTION NOT DE-

CIDED BY THIS COURT CONCERNING

THE EXTENT OF FEDERAL CONSTITU-

TIONALIZATION OF STATE DEFAMATION

— SRR OY OP

ASSUMING THAT THE EDITORIAL CAR-

TOON WAS DEFAMATORY AND A STATE-

MENT OF FACT, THERE WAS SUF FICIENT

EVIDENCE OF ACTUAL MALICE FOR SUB-

MISSION OF THE LIBEL ISSUE TO TUE

——̃ — —

ASSUMING THAT EXPRESSIONS OF PURE

OPINION ARE CONSTITUTIONALLY PRO-

TECTED UNDER GERTZ v. WELCH,

THERE WAS SUFFICIENT EVIDENCE OF

UNDISCLOSED DEFAMATORY FACTS IN

THE THREE ARTICLES AND EDITORIAL

FOR THE ISSUE OF LIBEL TO BE SUB-

MITTED TO THE JURY

(iii)

Junewveeuwe

8

18

iv

TABLE OF CONTENTS—Continued

Page

IV. THE FIRST AND FOURTEENTH AMEND-

MENTS PROHIBIT A RULE OF LAW

WHICH GRANTS VIRTUAL ABSOLUTE IM-

MUNITY TO A MEDIA DEFENDANT FROM

LIBEL SUITS BROUGHT BY A PUBLIC

FIGURE BECAUSE SUCH A RULE WOULD

CHILL THE FIRST AMENDMENT RIGHTS

OF PETITIONER AND OTHER CANDI-

DATES FOR PUBLIC OFFICE ..................

CONCLUSION ........ — — —

APPENDIX

A—Opinion of the Supreme Court of the State of

Oklahoma Reversing the Jury Verdict in Favor

of Petitioner, January 12, 198ũ22W—2. la

B—Order of the Supreme Court of the State of

Oklahoma Denying Petitioner’s Motion for Re-

2. Apel 6, 1008 q... 0s 19a

C—“SEX CHARGE A LIE, GOV. BOREN RE-

PLIES” The Daily Oklahoman, August 11, 1978. 20a

D—“MISKOVSKY, POINTS LASHED—ALLEGA-

TIONS STIR STORM” The Daily Oklahoman,

August 11, 1978 liad NEG — —-„— 23a

E—“BOREN’S FRIENDS EXPRESS DISGUST”

Oklahoma City Times, August 11, 1978 26a

F—“MISKOVSKY AND MUD” The Daily Okla-

homan, August 11, 1978 27a

G—Editorial Cartoon, “ISN’T THAT RIGHT

ANTHONY ?” Oklahoma City Times, August 14,

1 RAR AR OO IRS, Oe Te CN 29a

H—Editorial Cartoon, “BOREN vs. BORIN” The

Daily Oklahoman, August 16, 1979 80a

I—12 Oklahoma Statutes § 1441 ee... 31a

J—Jury Instructions, May 27, 1980 2 a

v

TABLE OF AUTHORITIES

Cases: Page

Akins v. Altus Newspapers, Inc., 609 P.2d 1268

(Okla. 1977), cert. denied, 7, US. 1010

(1980) 18

Associated Press v. United States, 326 US. 1

„eee GRR SE TR IEE SES 27

Autobuses Internacionales v. El Continental Pub-

ishing Co., 488 S. W. 2d 506 (Tex. Civ. App.

1972) ..... 17

Buckley v. Littell, 589 F.2d 882 (2d Cir. 1976),

cert. denied, 429 U.S. 1062 (1977) 26

Buckley v. Valeo, 424 U.S. 1 (1970) 27, 28

Carson v. Allied News Co., 529 F.2d 206 (7th Cir.

% 20

Cobb v. Oklahoma Publishing Co., 140 P. 1079

/ Set * 28

Corabi v. Curtis Publishing Co., 441 Pa. 482, 278

r tiene idhasnsinctcine 16

Coz Broadcasting Corp. v. Cohn, 420 U.S. 469

r et ae. Sa le 16

Curtis Publishing Co. v. Butts, 388 U.S. 130

yD SS PE. SS AE EAT NES ne 15

Farnsworth v. Tribune Co., 48 III. 2d 286, 253

kg EEL ESC a evra 17

First National Bank of Boston v. Bellotti, 435

, 27, 28

Garrison v. Louisiana, 379 U.S. 64 (1964) 8 16, 20

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ..passim

Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.

1969), cert. denied, 396 U.S. 1049 (1970) 17, 21

Good Government v. Superior Court, 22 Cal. 3d

672, 150 Cal. Rptr. 258, 586 P.2d 572 (1978),

cert. denied, 441 U.S. 961 (1979 25

Greenbelt Cooperative Publishing Association v.

Bresler, 398 U.S. 6 (197ö0h 19, 28, 24, 25

Gregory Vv. McDonnell Douglas Corp., 17 Cal. 3d

596, 131 Cal. Rptr. 641, P.2d 425 (1976) 23

Herbert v. Lando, 441 U.S. 158 (1979) 18, 18

Hetherington v. Griffin Television, Inc., 480 F.

Supp. 498 (W.D. Okla. 1977) 14

vi

TABLE OF AUTHORITIES—Continued

Page

Hutchinson v. Proxmire, 448 U.S. 111 (19799) 18

Illinois State Board of Elections v. Socialist

Workers Party, 440 U.S. 178 (197999 29

Information Control Corp. v. Genesis One Com-

puter Corp., 611 F.2d. 781 (9th Cir. 1980) 23

Matthews v. Oklahoma Publishing Co., 219 P.

ere 28

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) 27

Nebraska Press Association v. Stuart, 427 U.S.

. r 17, 29

New York Times Co. v. Sullivan, 876 U.S. 254

eA ALE SITS passim

Oklahoma Publishing Co. v. Gray, 280 P. 419

r alahelinthbntninanigusebiees

Oklahoma Publishing Co. v. Kendall, 221 P. 762

r.

Oklahoma Publishing Co. v. Tucker, 254 P. 975

re

Pease v. Telegraph Publishing Co., Inc., 121 N. H.

62, 426 A. 2d 468 (1981)

Pell v. Procunier, 417 U.S. 817 (1974)

Pennekamp v. Florida, 328 U.S. 881 (1946)

Pickering v. Board of Education, 391 U.S. 5638

1 ͤ T

Reaves v. Foster, 200 So. 2d 458 (Miss. 1967)

Rinaldi v. Holt, Rinehart & Winston Inc., 42

N.Y.2d 869, 897 N.Y.S.2d 948, 866 N.E.2d 1299

(1977), cert. denied, 484 U.S. 969 (1977) 16

Rosenblatt v. Baer, 388 U.S. 75 (1966) 18

Rosenbloom v. Metromedia, Inc., 408 U.S. 29

CEIPEED <icuiicahinncntindueceketbicitee 8 18, 15

St. Amant v. Thompson, 390 U.S. 727 (1968)...... 15, 16,

19, 22

Stevens v. Sun Publishing Co., 270 S.C. 65, 240

S.E.2d 812 (1978), cert. denied, 486 U.S. 945

c 21

Thornhill v. Alabama, 310 U.S. 88 (1940) 28

Time, Inc. v. Pape, 401 U.S. 279 (1971) ................. 18

Trails West, Inc. v. Wolff, 82 N. V. 2d 207, 344

N. V. S. 2d 868, 298 N. Z. 2d 62 (1978 17

$838 8 8 &

— —

2 8

vil

TABLE OF AUTHORITIES—Continued

Page

Wat Henry Pontiac v. Pitcock, 301 P.2d 208 (Okla.

Zr 12

Wiggins v. Sterne, 298 P. 2d 608 (Okla. 1955) 18

Williams v. Rhodes, 398 U.S. 28 (196) 29

Wilson v. Scripps-Howard 1 Co., 642

F.2d 871 (6th Cir. 1981), cert. granted, 102

S.Ct. 500, cert. dismissed per stipulation, 102

r - 14

Wimmer v. — ere 1 P. 2d 671

rr xxx. 19, 28, 28

Treatises and Law Review Articles:

Eaton, The American Law of Defamation through

Gertz v. Robert Welch, Inc., and Beyond: An

Analytical Primer, 61 Va. L. Rev. 1849 (1975).. 15, 16

L.H. Eldredge, The Law of Defamation §51

nnen . 19, 30

Franklin, Winners and Losers and Why: A Study

of Defamation Litigation, Am. Bar Foundation

Research J. 498 (Summer 1980 29

R.D. Sack, Libel, Slander, and Related Problems

Re .... 23

Restatement (Second) of Torts 88 566, 618

——— eee 15, 17, 22, 26

Constitutional Provisions:

U.S. Constitution, Amendments, I, XIX passim

7 Petitioner,

THE OKLAHOMA PUBLISHING COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OKLAHOMA

Petitioner George Miskovsky respectfully petitions for

a writ of certiorari to review the judgment of the Su-

preme Court of the State of Oklahoma, entered on Janu-

ary 12, 1982, reversing the libel judgment on a jury ver-

dict for petitioner in the sum of one million dollars, and

remanding the case with instructions to dismiss.

OPINION AND ORDER BELOW

The opinion of the Oklahoma Supreme Court, which

appears in the Appendix at la, has been officially reported

at Vol. 53 Oklahoma Bar Journal 76. The order of the

case was issued on January 12, 1982. The

petitioner’s motion for rehearing was issued on April 6,

1982. The jurisdiction of this Court is invoked under

U.S.C. 1257 (8).

2

CONSTITUTIONAL PROVISIONS INVOLVED

1. United States Constitution, Amendment I:

Congress shall make no law. . . abridging the free-

dom of speech, or of the press

2. United States Constitution, Amendment XIV § 1:

[Nlor shall any state deprive any person of life,

liberty, or property, without due process of law ... .

STATEMENT OF THE CASE

A. PROCEDURAL BACKGROUND

Petitioner George Miskovsky [hereinafter “petitioner”

or “Miskovsky”], a candidate in 1978 for the United

States Senate, instituted this action for libel in the Dis-

Court

The

County, Oklahoma, on May 19-21, 1980. At the conclu-

sion of petitioner’s case, the trial court denied OPUBCO’s

motion for a directed verdict, thus ruling that petitioner

had submitted sufficient evidence of actual malice under

the First Amendment for the factual issues to be resolved

by the jury. (Vol. III, 161)" OPUBCO chose to present

no evidence whatsoever.

After approximately six hours of deliberation, the jury

awarded damages to petitioner in a total amount of one

1 References are to the volume and page number of the Official

Court Reporter’s Transcript. The transcript of each day's proceed-

ings is numbered separately.

mistrial. (Vol. III, 239-240)

B. IDENTIFICATION OF PARTIES

1. Petitioner George Miskovsky, son of immigrant par-

ney, State Representative, and State Senator. In 1958,

he was a candidate for Governor. Twenty years later,

at the age of sixty-eight, Miskovsky became a candidate

for the office of United States Senator. (Vol. I, 4-12)

Broadcasting Company, and numerous other diversified

holdings. (Voi. III, 2-4) The OPUBCO newspapers in-

volved in this case are The Daily Oklahoman and The

Oklahoma City Times. These papers have a combined

circulation of approximately 295,000 daily copies and

300,000 Sunday copies and are distributed throughout the

state of Oklahoma. (Vol. III, 3-5)

C. FACTUAL BASIS OF THE LIBEL CLAIM

I. The Press Conference

On August 9, 1978, during the course of the United

States Senate primary race, petitioner attended a candi-

date’s forum in El Reno, Oklahoma, sponsored by the

Women’s Democratic Club of Canadian County. The

.

unequivocal statement which Points had made. Although

Miskovsky had been aware of “widespread discussions

and beliefs and rumors throughout the state for—to my

knowledge about two years—” (Vol. I, 19), he had no

belief one way or the other about the rumors or Points’

statement. (Vol. I, 79)

After hearing the allegations, Miskovsky “waited to

see if there was anything done about it . . . considered

it,” and debated with himself whether he should call it

to the “people’s attention” because “the people had a

right to have that question asked.” (Vol. I, 20)

following day, August 10, Miskovsky delivered a

to Governor Boren’s office. The letter quoted in full the

charges made by Points and requested the Governor to

answer under oath the following questions:

Do you know what a homosexual or bisexual is?

Are you a homosexual or bisexual?

Have you ever been a homosexual! or bisexual?

Have you ever engaged in homosexual or bisexual

activity? (App. 4a)

The letter makes clear that Miskovsky himself was mak-

ing no allegations about Governor Boren. (App. 3a-5a)

Aware that the letter was newsworthy, Miskovsky called

a press conference that same day at which he made

copies of the letter available to members of the news

media. (App. 5a)

2. OPUBCO’s Reaction

OPUBCO reporters covered the press conference and

received copies of the letter. OPUBCO Managing Editor

Jim Standard, head of the State Capitol Bureau Ed

Montgomery, and many other OPUBCO reporters had

been aware of these rumors about Governor Boren for at

least two to three years. (Vol. II, 85, Vol. III, 91-92)

Managing Editor Standard had even discussed the matter

with Boren as early as 1976. (Vol. II, 83)*

The next day, August 11, OPUBCO published three

news articles and an editorial dealing with Points’

charges, Miskovsky’s press conference, and the Governor’s

response to these events. The first article appeared in

The Daily Oklahoman with the headline, “Sex Charge a

Lie, Governor Boren Replies.” Within the article,

OPUBCO planted the seed that a conspiracy existed be-

tween Miskovsky and Points:

2As discussed infra, OPUBCO vigorously endorsed Governor

Boren’s campaign.

Governor Boren’s staff members also were aware of the rumors.

They did not know how to deal with them and were relieved that

the matter had finally become public. (Pre Ex. 9)

Asked if he t Miskovsky and Points worked

together to t him, Boren replied, ‘I will just

have to leave that to your speculation.’ (App. 21a)

Inserted within that article is the caption, “Miskovsky

and Mud—an editorial—page 10.”

Immediately below this article appeared a second article

— “Miskovsky, Points Lashed-Allegations Stir

torm”’ :

Allegations against Governor Boren raised by fellow

U.S. Senate candidates George Miskovsky and

Anthony Points spurred a storm of indignation.

The [Tulsa] World said Miskovsky won a place

state history saying he ‘took the prize for the fi

stunt that has ever

4

N

8

1

8

HE

for major public office in this state.’

Oklahoma City radio station KTOK said the names

of Miskovsky and Points should be stricken from the

Such loathsome and statements, which have

Miskovsky

no place in it any longer either.’ (App. 23a-25a)

The third article appeared in The Oklahoma City Times

and was captioned, “Boren’s Friends Express Disgust.”

It stated in part:

Longtime friends and close associates of Gov. David

Boren expressed shock and disgust in his hometown

7

today after allegations surfaced Thursday that he is

a homosexual.

I’m really shocked. I just can’t believe it, [Boren’s

former pastor] said of the allegations.

Ward Lynn, father-in-law of Boren’s press secretary,

Rob Pyron, said he expected Miskovsky to be the

“hatchet man” in the campaign. (App. 26a)

The editorial of the The Daily Oklahoman, which ac-

companied the first and second articles, was entitied,

“Miskovsky and Mud.” It contained false and defamatory

statements:

George Miskovsky has sunk to a new low in Okla-

homa political rhetoric—and for him that takes some

doing

In a press conference reported on elsewhere in The

Oklahoman, the septuagenarian lawyer has attempted

to inject some sign of vitality in his moribund cam-

paign for the Democratic nomination for the U.S.

te.

His tactic was to indirectly suggest, in the form of a

letter asking questions, that Gov. David Boren has

homosexual tendencies.

Were it not for the fact that American law and

tradition make it virtually impossible to libel or

slander a politica] figure, Miskovsky’s words would

be actionable. As it is, they are merely despicable

and stupid. (App. 27a)

The editorial went on to state that Boren’s Senate candi-

dacy should be weighed on the record and on the positions

taken on national issues and “not on the scurrilous de-

famation hurled by Miskovsky. ... Miskovsky should save

his gutter theatrics for the next time he is defending

some scoundrel in criminal court.” (App. 28a)

Also published in The Daily Oklahoman on August 11

was the caption, “First Lady Molly Boren kisses Gov.

8

David Boren upon his arrival in Oklahoma City for a

press conference to refute fellow U.S. Senate candidate

George Miskovsky's allegations.” (Pl's Ex. 23)

On August 14, The Oklahoma Cit» Times published an

editorial cartoon captioned, “Isn’t That Right, Anthony?”

This was an effigy falsely depicting Miskovsky as a

puppeteer who was holding and manipulating a puppet,

Points. (App. 29a)

D. THE LIBEL TRIAL

As recognized by the Oklahoma Supreme Court, the

evidence at trial conclusively established that Governor

Boren was the favored candidate of OPUBCO. (App.

17a; Vol. II, 21, Vol. III, 11, 98) OPUBCO’s endorse-

ment of Boren was shown, for example, in an editorial

cartoon entitled, “Boren vs. Borin,” which appeared on

August 16, 1978. The cartoon depicted all the major

candidates except Boren. Senator Gene Stipe is depicted

with the words, I am not a Crook!”; former Congress-

man Ed Edmondson is dericted with the words, “I am not

a Has-Been!”; former Senator Miskovsky is depicted with

the words, “I am not GAY!”; and John Q. Public is de-

picted with the words, “I am not a Bit Interested!”

(App. 30a)

OPUBCO’s favoritism of Governor Boren was also

shown by its failure to make Points’ statement public

although it had a copy of the statement prior to Miskov-

sky’s press conference. Because Miskovsky chose to let

the voters know about Points’ statement, OPUBCO de-

cided to engage in a course of conduct designed to damage

Miskovsky’s reputation and to harm his campaign. On

the afternoon of August 10, following the press confer-

ence, Managing Editor Jim Standard in a discussion with

Publisher Edward L. Gaylord notified Gaylord that

“tomorrow we are really going to blister [Miskovsky].”

(Vol. II, 147) (Emphasis added.) The references to

Miskovsky’s profession and the statement that he should

“save his gutter theatrics for the next time he is defend-

ing some scoundrel in criminal court” were intended by

Standard to be a “good example . . so the readers would

understand what was going on.” (Vol. II, 147)

Against this backdrop, OPUBCO published the dam-

aging articles, editorial and cartoon even though OPC BCO

actually knew that Miskovsky had made no allegation

about Governor Boren. Moreover, prior to publication,

OPUBCO failed to conduct any investigation concerning

the asserted connection between Points and Miskovsky.*

Managing Editor Standard admitted that at no time did

he believe there was any such connection. (Vol. II, 105)

Simply put, OPUBCO knew better than to imply that a

conspiracy existed between Points and Miskovsky to harm

Governor Boren. (Vol. II, 124-125)

In regard to the “puppet” cartoon, editorial cartoonist

Chan Lowe testified that in drawing the cartoon he relied

upon the information appearing in the OPUBCO news

articles. (Vol. III, 114) The conspiratorial point of the

cartoon was shown by the admission at trial of Assistant

Managing Editor Robert E. Lee who testified:

Q. Does that—do you feel that that gives the im-

— to the public that George put him up to

t?

A. I would hope so. I think that is what Chan

was trying to do, and if they didn’t give the public the

impression, then he wasn’t doing a very good job,

was he? (Vol. II, 34)

*Only after the publication of the articles in question did

OPUBCO’s chief investigative reporter Jack Taylor conduct any

investigation regarding a possible link between Points and Miskov-

sky. The investigation revealed no connection whatsoever between

Points and Miskovsky, but did indicate that Points was not what he

represented himself to be. Although the investigation developed no

relationship between Miskovsky and Points, OPUBCO in its news

articles never publicized this fact and continued to link Miskovsky

ard Points. On August 30, 1978, OPUBCO published two separate

full-page articles headlined, “Thwarted Miskovsky Denies ‘Gay’

Charge Link” and “Who is Anthony Points?” (Ps Ex. 18; Vol. II.

184-185)

10

At the conclusion of the trial, the court properly sub-

mitted the three articles, editorial and cartoon to the jury

for determination of whether they singly or in combina-

tion libeled Miskovsky. The court carefully instructed the

jury concerning the applicable law. The test of actual

malice as articulated by this Court in New York Times v.

Sullivan, 376 U.S. 254 (1964), was given to the jury

almost verbatim :

In order to prove that he has been libeled by the de-

fendant, plaintiff must prove the publications were

knowingly false or were published with reckless dis-

regard of whether they were true or not. (Instruction

14, App. 38a)

The Court further explained the New York Times re-

quirement:

Proof of malice requires evidence showing that the

defendant published the material complained of with

an awareness of the probable falsity of the publica-

tions or that there be sufficient evidence to permit the

conclusion that the defendant, through its agents,

publications in order for the plaintiff to be entitled

to recover damages from the defendant. (Instruction

14, App. 38a)

In addition, the trial court correctly stated the “clear

and convincing” proof requirement and admonished the

jury that this was a “much higher” burden than pre-

ponderance of the evidence. (Instruction 5, App. 35a)

At OPUBCO’s request, the court gave the following addi-

tional instruction :

11

Thus a properly instructed jury, after hearing the evi-

dence and after careful deliberation, concluded that

OPUBCO had in fact libeled George Miskovsky.

E. FEDERAL QUESTIONS PROPERLY RAISED

The federal questions raised in this Petition were

properly raised before the Oklahoma Supreme Court. A»

by the trial court, though not precisely those sought by

review sought by OPUBCO in this case.” Appellee’s

Brief at 26-28. Petitioner argued that ‘ ““fo}nee the New

York Times standard is satisfied, the states are free to

impose liability in accordance with their own common

law or statutory precepts.” Appellee’s Brief at 24. The

question of the extent to which these issues are controlled

by federal constitutional law thus was squarely presented

to the Oklahoma Supreme Court.

12

REASONS FOR GRANTING PETITION

I. THIS COURT SHOULD GRANT REVIEW BECAUSE

THE DECISION OF THE OKLAHOMA SUPREME

COURT RAISES AN IMPORTANT FEDERAL

QUESTION NOT DECIDED BY THIS COURT CON-

CERNING THE EXTENT OF FEDERAL CONSTI-

TUTIONALIZATION OF STATE DEFAMATION

LAW.

When this Court ruled in New York Times that the

First Amendment requires a public figure to demonstrate

actual malice in order to prevail in a libel case, the Court

did not intend to abolish the common law of libel. The

Oklahoma Supreme Court, however, erroneously concluded

that under New York Times and its progeny the Okla-

homa law of libel had been supplanted by federal constitu-

tional law.

The jury by its verdict implicitly found that the re-

spondent had defamed petitioner, that respondent’s state-

ments were false, that respondent’s publications were not

protected statements of opinion, and that respondent pub-

lished with actual malice. The Oklahoma Supreme Court

reversed the judgment entered pursuant to this verdict,

not because of any error in the instructions under which

the case was submitted, but on the ground that peti-

tioner’s evidence on the issues of defamation, falsehood

and malice was constitutionally deficient. (App. 9a)

It is apparent from the opinion of the Oklahoma Su-

preme Court that the court incorrectly believed that state

law on all of these issues had been both superseded and

controlled by the requirements of the Constitution.“ Except

* The Oklahoma Supreme Court would not have overturned the

jury verdict on state law grounds because of the limited appellate

review of jury verdicts under Oklahoma law. In Wat Henry Pontiac

v. Pitcock, 301 P.2d 203, 207 (Okla. 1956), the Oklahoma Supreme

Court held:

In a law action the verdict of the jury is conclusive as to all

disputed facts and all conflicting statements, and where there

is any competent evidence reasonably tending to support the

verdict of the jury, this court will not invade the province of

13

for one case cited to show the applicability of New

York Times to candidates for public office (App. 18a,

n.1), the court did not cite a single Oklahoma case. Nor

did the court cite the Oklahoma statute which establishes

the standards governing libel actions. (App. 3la) The

court did not refer to state standards of judicial review,

but instead discussed extensively the requirements of

New York Times. After this preface, the court then

examined the evidence with respect to each of the five

publications alleged to be libelous.’ The court drew no

distinctions regarding the source of law or the standard

of review applicable to the issues of defamation, false-

hood and malice. To the contrary, the court obviously

assumed that federal law controlled and that under fed-

eral law the court was required to engage in the same

type of de novo review with respect to each issue before

the court.

It is now well settled that the finding of actual malice

is a “constitutional fact” subject to de novo review by

this Court. See Rosenbloom v. Metromedia, Inc., 403 U.S.

29, 54 (1971) (plurality opinion); Time, Inc. v. Pape,

401 U.S. 279, 284 (1971). Petitioner acknowledges that

it is appropriate for a state appellate court to engage in

a similar review of evidence on the issue of actual malice.

Cf. Pickering v. Board of Education, 391 U.S. 563, 578,

the jury and will not disturb its verdict and judgment based

thereon. Wiggins v. Sterne, 293 P.2d 608, 604 (Okla. 1955).

The Oklahoma Supreme Court has held that this very narrow stan-

dard of review applies to defamation actions under state law and

that in such an action [wle do not weigh the evidence or the

correctness of the finding of the facts by the jury.” Akins v. Altus

Newspapers, Inc., 609 P.2d 1263, 1266 (Okla. 1977), cert. denied,

449 U.S. 1010 (1980). Just as this Court has concluded that defa-

mation suits are not exempt from the normal rules of discovery,

Herbert v. Lando, 441 U.S. 153 (1979), so also should the tradi-

tional Oklahoma policies governing appellate review of jury verdicts

be applied.

7 Petitioner concedes that he is a public figure plaintiff to whom

the actual malice requirement of New York Times applies.

855

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The American Law Institute in a caveat to Restatement (Sec-

ond) of Torts §613 at 307 (1977) expresses “no opinion on be

extent to which the common law rule placing on the defendar he

burden of proof to show the truth of the defamatory communication

25

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II. ASSUMING THAT THE EDITORIAL CARTOON

WAS DEFAMATORY AND A STATEMENT OF

FACT, THERE WAS SUFFICIENT EVIDENCE OF

ACTUAL MALICE FOR SUBMISSION OF THE

LIBEL ISSUE TO THE JURY.

In its treatment of the editorial cartoon, the Oklahoma

Supreme Court assumed, without deciding, that the pub-

lication was defamatory and a statement of fact. (App.

15a-16a) The Oklahoma Supreme Court incorrectly held

that there was insufficient evidence of actual malice for

the matter to be submitted to the jury.

As long as there is sufficient evidence by which a rea-

sonable person might conclude that actual malice was

shown with clear and convincing clarity, a jury may re-

turn a verdict against a publisher. Proof of actual malice

calls into question a defendant’s state of mind and does

not lend itself to a “summary disposition.” Hutchinson v.

Prowmire, 443 U.S. 111, n.9 (1979) Although the Court

in Hutchinson was discussing the tendency of certain

courts to award summary judgment to defendants in libel

cases, this holding is also applicable in considering the

decision of the Oklahoma Supreme Court. If the state

court had correctly applied the constitutional standards

for libel, it would have upheld the verdict of a properly

instructed jury. Deference to a jury’s finding regarding

a defendant’s state of mind is appropriate because evi-

dence of malice is a question of fact which only a jury

ean decide.” Herbert v. Lando, supra. “The finder of

ual states under the Ninth and Tenth Amendments. But this

does not mean that the right is entitled to any less recognition

by this Court as a basic of our constitutional system.

Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring).

18 In its ruling that the cartoon was not actionable, the Oklahoma

Supreme Court summarized the publisher’s testimony that OPUBCO

19

fact [and not the appellate court] must determine

whether the publication was indeed made in good faith.”

St. Amant v. Thompeor ~upra, 390 U.S. at 732.

Relying on Gertz v. Welch, supra, the Oklahoma Su-

preme Court ruled that OPUBCO’s failure to investigate

could

proof of failure to investigate without more, can-

;

.

;

law of actual malice. The

. „states that [failure to in-

vestigate does not in itself establish bad faith.” 390 U.S.

at 733 (emphasise added). However, where there is suffi-

ous doubts as to the truth of his publication, then publish-

ing with such doubt shows reckless disregard for truth or

falsity and demonstrates actual malice. Id., at 731.

“[T)he failure to investigate the truth or falsity of the

The jury in concluding that OPUBCO had demonstrated

a reckless disregard of the truth or falsity of its pub-

did not intend to accuse Miskovsky of criminal libel. (App. 16a-17a)

This focus on the intent of the publisher contradicts the evidence

lications regarding petitioner was undoubtedly influenced

by evidence of petitioner’s eminent career in public serv-

ice. Petitioner has practiced law for more than 40 years

in Oklahoma and has often defended unpopular or con-

troversial individuals and causes. He has held numerous

public offices and was a serious candidate for the office of

United States Senator. In view of petitioner’s record and

reputation, there were obvious reasons why the jury

would naturally and logically conclude that OPUBCO

must have had serious doubts about the truth of the

charges. The evidence of failure to investigate, coupled

with OPUBCO’s motives in “blistering” petitioner in

order to further the political career of its favored candi-

date, and the eminence of petitioner’s career certainly

demonstrated OPUBCO’s reckless disregard for the

truth.“

On facts similar to those found in petitioner's case,

the United States Court of Appeals for the Second Circuit

affirmed a libel judgment for Senator Barry Goldwater

after considering what other circumstances, in addition

to failure to investigate, might constitute actual malice."

% In Garrison v. Louisiana, supra, 379 U.S. at 76, this Court

stated :

The use of caiculated falsehood, however, would put a different

cast on the constitutional question. Although honest utterance,

even if inaccurate, may further the fruitfu) exercise of the

right of free speech, it does not follow that the lie, knowingly

and deliberately published about a public official, should enjoy

a like immunity ....

* * * *

That speech is used as a tool for political ends does not auto-

matically bring it under the protective mantle of the Constitu-

tion. For the use of the known lie as a tool is at once at odds

with the premises of democratic government and with the

orderly manner in which economic, social, or political change

is to be affected.

21

Goldwater v. Ginaberg, supra, 414 F.2d at 339. Neither

the Goldwater article nor the cartoon in question con-

tained any “hot news” which might have presented a

mitigating factor or would have excused haste in pub-

lishing; in fact, the Miskovsky cartoon was not news at

all. In Goldwater, the court found that the publisher was

very much aware of the possible resulting harm. Here

the facts are even more egregious because the evidence is

undisputed that OPUBCO was more than merely aware

of the possibility that harm would result from its publica-

tion; OPUBCO affirmatively desired and sought to “blis-

ter” petitioner and his reputation to further the electoral

prospects of its favored candidate. The publisher’s inten-

tion “to get” Miskovsky is evidence of actual malice.

Stevens v. Sun Publishing Co., 270 S.C. 65, 240 S.E.2d

812 (1978), cert. denied, 486 U.S. 945 (1978). Accord-

ing to Assistant Managing Editor Robert E. Lee,

OPUBCO intended that the cartoon convey the impression

of a conspiracy.“ (Vol. II, 36) In both the Goldwater

and the Miskovsky publications the seriousness of the

charges necessitated a thorough investigation. In Gold-

water, the court faulted the media defendant for a “slip-

shod and sketchy” investigation. In Miskovsky, an in-

vestigation was held only after the cartoon was printed—

an investigation which could easily have been arranged

prior to publication.

actual malice where the publication presented a substantial danger

to the reputation of the individual who was the target of the attack

and the information was not “hot news” that could not wait another

day or two before publication. The court also weighed the oppor-

tunity of the publisher to investigate whether the “keystone” fact

in the story was true.

18 The uncontroverted evidence at trial showed that OPUBCO’s

efforts were successful and that readers interpreted the “puppet”

cartoon in a defamatory way. Petitioner testified to numerous

hate calls and to having received in the mail the cartoon containing

epithets drawn upon it by a reader. (App. 22a) Further, Assistant

Managing Editor Robert E. Lee testified that following publication

of the cartoon, there was talk going around town and at City Hall

that Miskovsky and Points had engaged in a conspiracy. (Vol. II.

26-27)

In sum, a failure to investigate, the absence of any

“hot news” value, the publisher’s intent to get Miskovsky,

and the ease with which an investigation could have been

conducted, all support the jury’s conclusion that the car-

toon was published with actual malice. The Oklahoma

Supreme Court erroneously failed to consider these other

circumstances, as required by Gertz and St. Amant. Ac-

cordingly, this Court should reinstate the jury’s verdict.

III. ASSUMING THAT EXPRESSIONS OF PURE OPIN-

ION ARE CONSTITUTIONALLY PROTECTED UN-

DER GERTZ v. WELCH, THERE WAS SUFFICIENT

EVIDENCE OF UNDISCLOSED DEFAMATORY

FACTS IN THE THREE ARTICLES AND EDI-

TORIAL FOR THE ISSUE OF LIBEL TO BE SUB-

MITTED TO THE JURY.

In deciding that the three newspaper articles and the

editorial were not defamatory, the Oklahoma Supreme

Court ruled that the contents of the articles and the edi-

torial were not actionable because they were pure opinion

rather than statements of fact.“ The Oklahoma Supreme

Court in its decision appears to rely on the federal Con-

stitution since the court does not cite any state law. The

court, however, refers to only one federal case to support

its belief that no reader could have thought that the

statements in OPUBCO’s editorial in fact accused peti-

tioner of committing criminal libel. With respect to the

other findings of privileged opinion, the Oklahoma Su-

1% The rationale of the Oklahoma Supreme Court may be ex-

plained with reference to the view expressed in the Restatement

(Second) of Torts § 566, Comment C (1977), which states that

actions for defamation on the basis of an expression of pure opin-

ion appear to have been rendered unconstitutional by Gertz v.

Welch. In Gertz, this Court said:

Under the First Amendment there is no such thing as a false

idea. However pernicious an opinion may seem, we depend for

its correction not on the conscience of judges and juries, but

on the competition of other ideas. 418 U.S. at 339-340.

The Oklahoma Supreme Court incorrectly stated that Miskovsky in

his brief conceded that statements of opinion are not actionable.

(See App. 12a and Appellant’s Brief at 38-42)

preme Court articulates no standard or rationale for de-

termining what is opinion, mixed opinion and fact, or

opinion which implies the existence of defamatory facts.

It simply acted as the “thirteenth” member of the jury.

The full impact of New York Times and its progeny

on the common law of defamation is unclear and this is

an area where there is considerable confusion. For ex-

ample, a leading commentator has said:

Determining what is defamatory may have constitu-

tional implications, although few cases have explored

them. The theory seems to be thaty as a matter of

constitutional law, the First Amendment thumb is

put on the balance in favor of finding expression to

be non-defamatory

R. D. Sack, Libel, Slander, and Related Problems 83

(1980). Other courts have also concluded that pure opin-

ion is not actionable under the Constitution. F. g., Gre-

gory v. McDonnell Douglas Corp., 17 Cal.3d 596, 131 Cal.

Rptr. 641, 552 P.2d 425 (1976); Information Control

Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th

Cir. 1980) ; Pease v. Telegraph Publishing Co., Inc., 121

N.H. 62, 426 A.2d 463 (1981). This Court, however, has

never required the absolute privilege accorded here by

the Oklahoma Supreme Court.“

In Greenbelt Cooperative Publishing Association v.

Bresler, supra, 388 U.S. at 6, the only case cited by the

Oklahoma Supreme Court in its discussion of opinion

and defamatory meaning, Mr. Justice White addresses

in his concurring opinion the issue of words with double

meaning

Should New York Times Co. v. Sullivan . . be ex-

tended to preclude liability for injury to reputation

caused by employing words of double meaning, one of

which is libelous, whenever the publisher claims in

2° Under Oklahoma law, whether a statement is defamatory is

“measured by its natural and probable effect upon the mind of the

average lay reader.” Wimmer v. Oklahoma Publishing Co., supra,

1 Pad at 673.

24

good faith to have intended the innocent meaning?

I think not. 8

But it is quite a different thing, not involving the

same danger of self-censorship, to immunize profes-

sional communicators from liability for their use of

ambiguous language and their failure to guard

7

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In concluding that the

that [al llegations against Gov. David Boren

0

fellow U.S. Senate candidates George Miskovsky and

Anthony Points spurred a storm of indignation“ did not

imply that petitioner brought up this issue on his own

or in cooperation with Points, the Oklahoma Supreme

Court relied upon one of several dictionary definitions of

the word “raised.” (App. 12a) It is clear that there are

other meanings for the word “raised” and that a reader

might reasonably conclude from the use of the word that

petitioner stirred up the issue on his own or in a con-

spiracy with Points. This is particularly true when the

after considering all of the circumstances, which

sharply different from those found here. Id., at 13. The

Court found that the use of the word “blackmail” con-

stituted an “accurate and truthful report(s) of what

had been said at a public hearing.” Id., at 12. The word

was used in an article discussing a public debate whereby

the paper was “performing its wholly legitimate func-

tion.” Id., at 13. This Court did not decide in Greenbelt

that expressions of opinion could never be libelous. The

Court concluded only that the use of the word “blackmail”

was not defamatory in an article where no reader could

have thought that the plaintiff was actually being charged

with “blackmail” and where the defendant was printing

“accurate and truthful reports.“ The facts in Miskov-

sky are sharply different because OPUBCO was not

merely reporting what had been said, but was accusing

petitioner of “scurrilous defamation”; OPUBCO was edi-

torializing in order to subvert Miskovsky’s candidacy for

public office and was not fulfilling its traditional First

Amendment role.

The third newspaper article entitled “Boren’s Friends

Express Disgust” also contains defamatory statements

because OPUBCO repeated a comment made by Ward

Lynn that Miskovsky was the “hatchet man” in the cam-

paign. This characterization is not pure opinion pro-

tected by the First Amendment because a typical reader

could easily have concluded that petitioner was being

charged with illegal or immoral acts. The jury could

have concluded that OPUBCO printed the comment made

by a partisan individual who was not part of the cam-

paign because doing so was useful to OPUBCO’s plan to

“blister” Miskovsky.

Also, the newspaper editorial, in addition to character-

izing Miskovsky’s words as “scurrilous defamation,” ac-

cuses petitioner of “gutter theatrics” and states that he

is a “defender of scoundrels.” * Contrary to the view of

21 In circumstances different from those in Greenbelt the question

of whether a reference to “blackmail” constituted an accusation of a

crime was left for the jury to decide. Good Government v. Superior

Court, 22 Cal.3d 672, 150 Cal. Rptr. 258, 586 P.2d 572, 576 (1978),

cert. denied, 441 U.S. 961 (1979).

22 OPUBCO did not controvert the evidence Miskovsky presented

at trial that he has never engaged in gutter theatrics in the court-

the Oklahoma Supreme Court, these are not constitution-

ally protected statements of opinion. In the totality of

the circumstances, the characterization of petitioner’s

words as “actionable” falsely accuses petitioner of crimi-

nal libel. Courts and commentators have concluded that

expressions of opinion mixed with fact and statements

of opinion which imply the existence of undisclosed de-

famatory facts do not enjoy the protection of the First

Amendment. Buckley v. Littell, 589 F.2d 882 (2d Cir.

1976), cert. denied, 429 U.S. 1062 (1977) ; Restatement

(Second) of Torts § 566. In sum, the Oklahoma Supreme

Court opinion erroneously decided that the Constitution

rendered OPUBCO’s publications not actionable and ac-

cordingly should be reviewed by this Court.

IV. THE FIRST AND FOURTEENTH AMENDMENTS

PROHIBIT A RULE OF LAW WHICH GRANTS

VIRTUAL ABSOLUTE IMMUNITY TO A MEDIA

DEFENDANT FROM LIBEL SUITS BROUGHT BY

A PUBLIC FIGURE BECAUSE SUCH A RULE

WOULD CHILL THE FIRST AMENDMENT RIGHTS

OF PETITIONER AND OTHER CANDIDATES FOR

PUBLIC OFFICE.

The First Amendment fulfills an important function

in our society in preserving the integrity of the electoral

process. As this Court has observed, dl iscussion of

public issues and debate on the qualifications of candi-

dates are integral to the operation of the system of gov-

room and has never been a defender of scoundrels. Nor did OPUBCO

dispute Miskovsky’s evidence that there never was any conspiracy

between himself and Points. (Vol. I, 39, 54-55) The conclusion

that these accusations were leveled at Miskovsky without any sub-

jective belief or concern for whether or not they were true is

inescapable. As Chief Justice Burger noted:

[The advocate is not to be invidiously identified with his

client. The important public policy which underlies this tradi-

tiun—the right to counsel—would be gravely jeopardized if

every lawyer who takes an ‘unpopular’ case, civil or criminal,

would automatically become fair game for irresponsible re-

porters and editors . . Gertz v. Welch, supra, 418 U.S. at

355 (Burger, C.J., dissenting).

27

ernment established by our Constitution.” Buckley v.

Valeo, 424 U.S. 1, 14 (1976). The constitutional guaran-

tee of freedom of speech “has its fullest and most urgent

application precisely to the conduct of campaigns for

public office.” Monitor Patriot Co. v. Roy, 401 U.S. 265,

272 (1971). “The candidate, no less than any other per-

son, has a First Amendment right to engage in the dis-

cussion of public issues and vigorously and tirelessly to

advocate his own election.” Buckley v. Valeo, supra, 424

U.S. at 52. “Democracy depends on a well informed

electorate, not a citizenry . . . limited in its ability to

discuss and debate candidates and issues.” Id. at 49,

n.55. Further, “the press does not have a monopoly on

either the First Amendment or the ability to enlighten.”

First National Bank of Boston v. Bellotti, 435 U.S. 776,

782 (1978); Cf. Pell v. Procunier, 417 U.S. 817 (1974).

“(T]he purpose of the Constitution was not to erect the

press into a privileged institution but to protect all per-

sons in their right to print what they will as well as to

utter it.“ Id., at 802 (Burger, C. J., concurring), citing

Pennekamp V. Florida, 328 U.S. 331, 364 (1946) (Frank-

furter, J., concurring). “And self-government suffers

when those in power suppress competing views on public

issues ‘from diverse and antagonistic sources.“ Associ-

ated Press v. United States, 326 U.S. 1, 20 (1945), cited

in Bellotti, swpra, 435 U.S. at 777, n.12. The Oklahoma

Supreme Court decision overturning the libel verdict in

favor of petitioner infringes upon petitioner’s First

Amendment rights and encourages OPUBCO to limit pub-

lie debate in future elections.

The evidence presented at petitioner’s trial clearly

demonstrates that OPUBCO sought to “blister” petitioner

in a race for public office by knowingly publishing de-

famatory falsehoods about him in order to limit debate

on public issues and to infringe on petitioner’s First

Amendment rights. A jury of Oklahoma citizens correctly

understood OPUBCO’s intent and responded with the

largest jury verdict in favor of a candidate for political

office in the United States. While awarding petitioner

Freedom of discussion, if it would fulfill its historic

function in this nation, must embrace all issues about

which information is needed or appropriate to enable

the members of society to cope with the exigencies of

their period. Thornhill v. Alabama, 310 U.S. 88,

101-102 (1940).

“(T]he concept that government may restrict the speech

of some elements of our society in order to enhance the

relative voice of others is wholly foreign to the First

Amendment.” Buckley v. Valeo, supra, 424 U.S. at 48-49.

* OPUBCO has not lost a libel case since 1927 when a $1000

jury verdict in favor of a municipal judge was upheld on appeal.

Oklahoma Publishing Co. v. Tucker, 254 P. 975 (Okla. 1927). There

v. Kendall, 221 762 (Okla. 1924); Oklahoma Publishing Co. v

Gray, 280 P. 419 (Okla. 1929); Wimmer v. Oklahoma Publishing

Co., supra.

— —

ty and with immunity in such a fash-

oo petitioner’s First Amendment rights.“

.

gn for public office and OPUBCO’s right of fair

4. The grant of virtual absolute immunity to

OPUBCO would require a candidate who runs for public

office without OPUBCO’s endorsement to sacrifice his

right of free speech and his right to his good name as a

pri

authors of

sociation.“ Accordingly, this Court should grant review

condition of candidacy, contrary to Nebraska Press As-

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