# Petition — Miskovsky v. Oklahoma Publishing Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 923

## Text

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 8
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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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|
f
i

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0295%3A1. Public record. Not legal advice.