Amicus Brief — Bose Corp. v. Consumers Union of United States, Inc.

Ce

S) J

ee. No. 82-1246.

ys In th

n the

Supreme Court of the United States.

Octroser Term, 1982.

BOSE CORPORATION,

PETITIONER,

v.

CONSUMERS UNION OF UNITED STATES, INC.,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT,

Motion for Leave to File Brief and Brief of the American Civil

Liberties Union and the Civil Liberties Union of

Massachusetts as Amici Curiae.

James F. McHucn,

Counsel of Record

Jane E. Serene,

BincHaM, Dana & GouLn,

100 Federal Street,

Boston, Massachusetts 02110.

Of Counsel: (617) 357-9300

Cuaances S. Sims,

AMERICAN Civit Liserties UNION

FOUNDATION,

132 West 43rd Street,

New York, New York 10036.

(212) 944-9800

Joun REINSTEIN,

Civit Liserties UNION OF

MASSACHUSETTS,

47 Winter Street,

Boston, Massachusetts 02108.

(617) 482-3170 '

& SLADE, INC. Z BOSTON , MASSACHUSETTS

No. 82-1246.

In the

Supreme Court of the United States.

Octoser Team, 1982.

BOSE CORPORATION,

PETITIONER,

U.

CONSUMERS UNION OF UNITED STATES, INC.,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT,

Motion of the American Civil Liberties Union and the

Civil Liberties Union of Massachusetts for Leave to File

Brief as Amici Curiae.

The American Civil Liberties Union and the Civil Liberties

Union of Massachusetts respectfully move for leave to file the

attached brief as amici curiae. The respondent, but not the

petitioner, has consented to the filing of this brief.

The American Civil Liberties Union (hereinafter “ACLU”)

is a nationwide, non-partisan organization of over 250,000

members. Founded over sixty years ago, ACLU is dedicated

to preserving and protecting the fundamental principles em-

bodied in the Bill of Rights. The Civil Liberties Union of

Massachusetts (hereinafter “CLUM”) is one of ACLU’s state

affiliates, a private, non-profit, membership-only organization

having approximately 9,500 members in the Commonwealth

of Massachusetts. CLUM has as its purpose the preservation

of rights and liberties protected both by the Constitution of the

Commonwealth of Massachusetts and the Constitution of the

United States. For a considerable time, both ACLU and

CLUM have been actively involved in efforts designed to en-

sure that the people of the United States and of the Common-

wealth have the broadest possible latitude within which to ex-

ercise their undoubted right to speak with impunity about all

matters of public interest or importance.

Amici believe that the opinion and judgment of the district

court in this case were in irreconcilable conflict with the over-

riding principle that speech on public affairs “should be unin-

hibited, robust and wide-open.” New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964). The power of the Court of

Appeals to remove that conflict by making an independent

constitutional judgment that the record did not contain “clear

and convincing” evidence of respondent's knowledge of falsity

at the the time of publication, represents an important aspect

of the protections for First Amendment rights this Court has

historically endorsed. Indeed, independent review of “consti-

tutional facts” and of the powers by which those facts are

found is but a reflection of a reviewing court's obligation to en-

sure that constitutional principles are constitutionally applied.

To entrust to the trial court near-final power to find the facts

and to determine that the facts have been properly found

would create a grave danger of erosion of constitutional rights

through distorted fact-finding. Independent review of the

type exercised by the Court of Appeals here is the only sure

way to check that danger.

In sum, amici believe that resolution of the “procedural”

issues riding on the surface of this case can have very impor-

tant consequences for the substantive First Amendment rights

those procedural issues concern. To present the foregoing

views in this important First Amendment case, ACLU and

CLUM respectfully move for leave to file the attached brief as

amici curiae,

Respectfully submitted,

James F. McHvucu,

Counsel of Record

JANE E. SERENE,

BINGHAM, Dana & GouLp,

100 Federal Street,

Boston, Massachusetts 02110.

(617) 357-9300

Of Counsel:

CHARLES S, SIMS,

AMERICAN Crvit Liperties UNION

FOUNDATION,

132 West 43rd Street,

New York, New York 10036.

(212) 944-9800

JouHN REINSTEIN,

Crvit Luperties UNION OF

MASSACHUSETTS,

47 Winter Street,

Boston, Massachusetts 02108.

(617) 482-3170

Table of Contents.

Interest of amici

Statement of the case

Summary of argument

Argument

I. Introduction

Il. The court of appeals properly made an inde-

pendent judgment concerning whether “actual

malice” had been shown on the record by “clear

and convincing” evidence 7

A. The court of appeals’ independent judgment

was properly exercised because of its obligation

to insure that constitutional principles are con-

stitutionally applied 7

B. Even if the rule requiring proof by “clear and

convincing” evidence is not of constitutional

dimension, the court of appeals properly exer-

cised its independent judgment to determine

whether that standard had been met 19

III, The court of appeals correctly concluded that

Bose had not proved CU's actual malice by clear

and convincing evidence 24

-~- +& NO — —

Conclusion 27

Table of Authorities Cited.

CASES.

Addington v. Texas, 441 U.S. 418 (1979) 15, 16, 18n, 20, 23

Ashe v. Swenson, 397 U.S. 436 (1970) 15

Baumgartner v. United States, 322 U.S. 665 (1944) 21, 23

Beaumont v. Morgan, 427 F.2d 667 (1st Cir. 1970) 25n

ii TABLE OF AUTHORITIES CITED.

Beckley Newspapers Corp. v. Hanks, 389 U.S. §1 (1967) 10

Branti v. Finkel, 445 U.S. 507 (1980) ll

Cantwell v. Connecticut, 310 U.S. 296 (1940) 13n

Carroll v. President & Commissioners of Princess Anne,

393 U.S. 175 (1968) 15

Chambers v. Florida, 309 U.S. 227 (1940) 12n

Chaunt v. United States, 364 U.S. 350 (1960) 21

Colorado v. New Mexico, _. U.S. ___, 51 U.S. L.W.

4045 (U.S., December 13, 1982) (No. 80, Orig.) 20n

Columbus Board of Education v. Penick, 443 U.S. 449

(1979) 16,17

Connick v. Myers, _. U.S. ___., 51 U.S.L.W. 4436

(U.S., April 20, 1983) (No. 81-1251) 11, l4n

Costello v. United States, 365 U.S. 265 (1961) 21

Cox v. Louisiana, 379 U.S. 536 (1965) 12

Culombe v. Connecticut, 367 U.S. 568 (1981) 12

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) 10

Dayton Board of Education v. Brinkman, 443 U.S.

526 (1979) 16

Drope v. Missouri, 420 U.S. 162 (1975) 12n, 14

Eaton v. City of Tulsa, 415 U.S. 697 (1974) 13n

Edwards v. South Carolina, 372 U.S. 229 (1963) 12

Elrod v. Burns, 427 U.S. 347 (1976) 1]

Federal Insurance Co. v. Summers, 403 F.2d 97] (lst

Cir. 1968) 25n

Fedorenko v. United States, 449 U.S. 490 (1981) 20, 22

Fiske v. Kansas, 274 U.S. 380 (1927) 12n, 23n

Freedman v. Maryland, 380 U.S. 51 (1965) 15

FTC v. Standard Oil Company, 449 U.S. 232 (1980) 20n

Garrison v. Louisiana, 379 U.S. 64 (1964) 25, 27n

Gertz v. Robert Welch, Inc., 418 U.S, 323 (1974) 10n

TABLE OF AUTHORITIES CITED. iii

Greenbelt Cooperative Publishing Association v. Bres-

ler, 398 U.S. 6 (1970) 10

Haynes v. Washington, 373 U.S. 503 (1963) 12n, 14

Helvering v. Tex-Penn Oil Co., 300 U.S. 481 (1937) 23n

Henderson v. Morgan, 426 U.S. 637 (1976) 12n

Herb v. Pitcairn, 324 U.S. 117 (1945) lln

Herman & MacLean v. Huddleston, __. U.S. ____, 51

U.S.L.W. 4099 (U.S., January 24, 1983) (Nos. 81-

680, 81-1076) 20, 23

Hess v. Indiana, 414 U.S. 105 (1973) 13n

In re Little, 404 U.S. 553 (1973) 13n

In re Winship, 397 U.S, 358 (1970) 16, 20, 23

Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,

456 U.S. 844 (1982) 17

Jacobellis v. Ohio, 378 U.S: 184 (1964) 13n

Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied,

382 U.S. 879 (1965) 25n

Jenkins v. Georgia, 418 U.S. 153 (1974) 13n, 14

Kois v. Wisconsin, 408 U.S. 229 (1972) 14,15

Louisiana v. Cox, 244 La. 1087, 156 So. 2d 448 (1963) 12n

McNabb v. United States, 318 U.S. 332 (1943) 28

Miller v. California, 413 U.S. 15 (1973) 14

Moore v. Chesapeake & Ohio Ry., 340 U.S. 573 (1951) 25n

Moore v. Michigan, 355 U.S. 155 (1957) 12n

NAACP vy. Claiborne Hardware Co., _. U.S. ___.,

50 U.S.L.W. 5122 (U.S., July 2, 1982) (No. 81-202) 13, l4n

National Association of Letter Carriers v. Austin, 418

U.S. 264 (1974) 10

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

6, 7, 8, 9n, 15 et seq.

Nishikawa v. Dulles, 356 U.S. 129 (1958) 21, 24

iv TABLE OF AUTHORITIES CITED.

NLRB v. Gotham Industries, Inc., 406 F.2d 1306 (lst

Cir. 1969) 25n

NLRB v. Joseph Antell, Inc., 358 F.2d 880 (lst Cir.

1966) 25n

Pennekamp v. Florida, 328 U.S. 331 (1946) 13n

Pickering v. Board of Education, 391 U.S. 563 (1968) ll

Pullman-Standard v. Swint, 456 U.S. 273 (1982) 17, 18, 22n, 23

Rogers v. Lodge, ___ U.S. ___., 50 U.S.L.W. 5041

(U.S., July 1, 1982) (No. 80-2100) 17

Rosenbloom v. Metromedia, Inc., 403 U.S. 29(1971) 10,15

St. Amant v. Thompson, 390 U.S. 727 (1968) 10, 25, 27n

Santosky v. Kramer, 455 U.S. 745 (1982) 18n, 20, 23

Schneiderman v. United States, 320 U.S. 118 (1943) 20, 21

Smith v. California, 361 U.S. 147 (1959) l4n

Speiser v. Randall, 357 U.S. 513 (1958) 15, 18

Steadman v. SEC, 450 U.S. 91 (1981) 23

Stovall v. Denno, 388 U.S. 293 (1967) 12n

Time, Inc. v. Johnston, 448 F.2d 378 (4th Cir. 1971) 6

Time, Inc. v. Pape, 401 U.S. 279 (1971) 8, 9, 26

Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969) 13n

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) 13

United States v. United States Gypsum Co., 333 U.S.

364 (1948) 17n

United States v. Wade, 388 U.S. 218 (1967) 20n

Vance v. Terrazas, 444 U.S. 252 (1980) 23

Watts v. Indiana, 338 U.S. 49 (1949) 14

Watts v. United States, 394 U.S. 705 (1969) 13n

Woodby v. Immigration & Naturalization Service,

385 U.S. 276 (1966) 20

TABLE OF AUTHORITIES CITED. Vv

STATUTES.

United States Constitution

First Amendment 2, 3, 6, 8, 9 et seq.

Fourteenth Amendment

Due Process Clause 9, 12n

Fed.R.Civ.P. 52(a) 7,17, 18n, 19, 28

MISCELLANEOUS.

Kalven, The New York Times Case: A Note on “The

Central Meaning of the First Amendment,” 1964

Sup. Ct. Rev. 191 l4n

Monaghan, First Amendment “Due Process,” 83 Harv.

L. Rev. 518 (1970) 14n, 15

Restatement (Second) of Torts

§ 580A, comment d 15n

§ 581A l4n

Schauer, Fear, Risk and the First Amendment: Unravel-

ling the “Chilling Effect,” 58 B.U. L. Rev. 685

(1978) 20

No. 82-1246.

In the

Supreme Court of the United States.

Octoser Term, 1982.

BOSE CORPORATION,

PETITIONER,

v.

CONSUMERS UNION OF UNITED STATES, INC.,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

Brief of the American Civil Liberties Union of Massachusetts

as Amici Curiae.

Interest of Amici.

The interest of amici curiae is set forth in the motion at-

tached to this brief.

Statement of the Case.

Amici adopt the staternent of the case presented by respond-

ent, Consumers Union of United States, Inc., (hereinafter

“CU”.

2

Summary of Argument.

This is a case in which the United States District Court for

the District of Massachusetts, after a lengthy bench trial, con-

cluded that the First Amendment to the Constitution of the

United States did not protect CU’s use of the word “about” to

describe the location from which the sound of musical in-

struments appeared to come when one listened to those in-

struments played through loudspeakers manufactured by peti-

tioner, Bose Corporation (hereinafter “Bose”). In reversing

that judgment, the United States Court of Appeals for the First

Circuit concluded, after its independent review of the entire

record, that the First Amendment did protect CU’s use of the

word because Bose had not proved by “clear and convincing

evidence” that CU knew it was making a false statement of

fact when that word was published (pp. 4-7).

In coming to an independent judgment that the record con-

tained no “clear and convincing evidence” of CU’s knowledge

of falsity at the time the relevant word was published, the

court of appeals exercised the proper scope of review in cases

like this. As is discussed in Part IIA of this brief, the require-

ment that knowledge of falsity be proved by “clear and con-

vincing evidence” is a requirement which stems directly from

the First Amendment itself. Indeed, that requirement is an

important elernent of the process by which speech protected

by the First Amendment is separated from speech which is

not.

Recognizing its obligation to ensure that constitutional prin-

ciples are constitutionally applied, this Court has, on numer-

ous occasions, reviewed the entire record in cases involving

First Amendment freedoms to come to an independent consti-

tutional judgment on the facts the record contains. Sometimes

it has done so because the constitutional rule of decision would

admit of no other approach. More often, it has done so

because the rule of decision, although couched in fact-like

form, was not fully self-defining and thus required an inde-

3

pendent constitutional judgment in order to ensure that speech

had not been impermissibly penalized.

Undoubtedly, the process by which “constitutional facts”

are found in the trial court has important consequences for the

underlying constitutional rights at issue. The rule requiring

proof by “clear and convincing” evidence in cases like this is an

important part of that process. But application of the rule is

not a ministerial task. The terms themselves contain no cer-

tain guide to their precise application and thus gain meaning-

ful form only through application to individual cases. The

obligation to ensure that constitutional principles are constitu-

tionally applied thus requires exercise of independent judg-

ment by a reviewing court so that the “clear and convincing”

rule remains the barrier against erosion of the First Amend-

ment freedoms it was designed to be (pp. 7-19).

Even if, unlike the “actual malice” standard it is designed to

serve, the “clear and convincing” rule does not stem from the

Constitution itself, Part IIB of this brief discusses why inde-

pendent review of the type exercised by the court of appeals

was nonetheless proper. The “clear and convincing” rule em-

bodies a choice concerning the outcome of legal disputes, a

choice based on the relative importance of the values those

disputes involve. The need to ensure proper recognition of

those values historically has triggered independent review by

this Court of the basis for trial-court findings the “clear and

convincing” rule governed. Indeed, the values inherent in the

rule undoubtedly would be exposed to serious erosion were its

execution left to the virtually unreviewable care of triers of

fact, those whose conduct it is intended to guide (pp. 19-24).

Finally, Part III of this brief discusses the court of appeals’

proper conclusion that the record in this case simply did not

contain “clear and convincing evidence” of CU’s knowledge of

the falsity of the word “about.” The trial court’s contrary con-

clusion proceeded on its disbelief of one of CU’s employees

coupled with its belief that that employee was too intelligent to

accidentally misuse the word. But disbelief of testimony does

4

not amount to affirmative evidence of a contrary fact, much

less “clear and convincing evidence” of the type here required.

Moreover, the CU employee whose testimony the trial court

disbelieved was not the one who first used the relevant word.

Finally, in relying on the ordinary meaning of the word

“about,” the trial court impermissibly substituted an objective

standard of knowledge for the subjective standard the Consti-

tution requires (pp. 24-27).

Argument.

I. INTRODUCTION.

After an “exceedingly protracted period of pretrial discov-

ery” and after nineteen days of trial (App. X. 39), the United

States District Court for the District of Massachusetts, sitting

without a jury, concluded that CU falsely had used the word

“about” in its six-hundred and fifty word article about Bose

stereophonic speakers. The court appeared to conclude that

CU should have used the word “across,” for “across” the room

or “along the wall,” and not “about” the room, is where it

found that the sound of musical instruments played through

the Bose speakers had “wandered” (App. X. 141-142).' The

court then concluded that CU knew that its use of the word

“about” was false because Arnold Seligson, one of two CU em-

ployees who heard the wandering sounds, was too intelligent

to “interpret{ ] a commonplace word such as ‘about’ to mean

anything other than its plain, ordinary meaning.” (App. X. 142.)

' The word “about” appeared in the following sentence: “Worse, indivi-

dual instruments heard through the Bose system ssemed to grow to gigantic

proportions and tended to wander about the room.” (App. X. 49.) The

5

Subsequently, after another three days of trial, judgment in

the amount of $115,000 entered in favor of Bose.*

In the main, the CU article at issue was a verbal translation

of various aural phenomena experienced by CU's employees

while listening to Bose speakers. As the district court itself

seemed to recognize, such efforts at translation are bound to

breed at least some imprecision (App. X. 87 & n.29). See also

J.A. 328-330. Indeed, before concluding that the word

“about” had been falsely used, the district court felt it neces-

sary to create the lexicon it intended to use while analyzing the

truth or falsity of the statements CU had made (App. X.

87-88). The court’s perceived need to do so undoubtedly

reflected the fact that “there are no words to describe all of the

aesthetic aspects of sound.” (J.A. 336-337 (Testimony of

Amar Bose).)

The judgment in favor of Bose thus came as the result of an

article which attempted to verbalize non-verbal phenomena.

It came as the result of an article in which, because of the in-

herently subjective nature of any effort to verbalize non-verbal

phenomena — particularly phenomena received from “unique

and unconventional” stereo speakers (App. X. 43) — the state-

ment at issue may well have been a statement of opinion and

not of fact.? It came as the result of a statement which, in

fact, may well have been true.‘ And it came as the result of a

*With interest and costs, the total amount of the judgment exceeded

$200,000 (J.A. 44-345).

* The court of appeals simply assumed for purposes of its decision that the

statement was one of fact and not of opinion (App. X. 15-18, 20). That, as

the court itself recognized, was a large assumption. The difference between

hearing “instruments (which) tended to wander .. . about the room” and

hearing, for example, “instruments which danced from place to place like a

fawn through the green spring meadow” is the difference between someone

who liked what he heard and someone who did not.

‘ Again, the court of appeals assumed for purposes of its decision that the

statement was false (App. X. 19-20), although it expressly recognized that it

may well have been true. id. Once again, the court's ambivalence was ap-

propriate. The record clearly reveals that there was some depth to the

6

conclusion by the district court that the “plain, ordinary

meaning” of a “commonplace word such as ‘about’” (App. X.

142) was too clear to admit of mistake.

Thus viewed, the district court's opinion and judgment are a

paradox, On one hand, the court's unchallenged conclusion

that Bose was a “public figure” for purposes of this action’

necessarily was a conclusion that the First Amendment per-

mitted — indeed, encouraged — speech about the Bose speak-

ers which was “uninhibited, robust and wide-open [sometimes

including] vehement, caustic and . . . unpleasantly sharp at-

tacks.” New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964). That, after all, is the guiding principle which the

rules regarding liability of those who speak about “public

figures” were designed to serve.

On the other hand, the judgment in this case is an implicit

endorsement of an exceedingly narrow and crabbed view of

what the First Amendment protects, a view at war with the

basic principle discussed in New York Times itself. If per-

mitted to stand, that judgment and the method used to reach

it would shrink the boundaries of the First Amendment to an

area encompassing only “an arid, dessicated recital of bare

facts.” See Time, Inc. v. Johnston, 448 F.2d 378, 384 (4th

Cir. 1971). Indeed, in cases like this one where the “bare

wandering heard by Seligson and the other CU employee who listened to the

Bose speakers (J.A. 254-255, 342, 343; App. X. 100). Indeed, to the extent

that the word “across” or the word “along” implies a strictly linear move-

ment, that word was itself not a precise description of what the two men

heard.

* Not having challenged the trial court's conclusion in the court of appeals,

Bose cannot, and has not, challenged it here. Bose’s decision reflects reality.

As part of its marketing efforts, Bose solicited reviews of its speakers by pro-

fessional reviewers and then publicly distributed some seven million copies of

those reviews in order to convince individuals that they ought to buy the

speakers it made (R.A. 43-44 & n.6). Bose itself thus aggressively sought to

make the quality and performance of its speakers an issue for public com-

ment, albeit public comment which it undoubtedly hoped would be uni-

formly favorable.

|

~~

facts” require one to verbalize an auditory or other non-verbal

sensation, that judgment would make dangerous any state-

ment at all,

But the business of appellate courts — indeed, the chief rea-

son for their very existence -— is to correct judgments of liabil-

ity which depart from the principles, general or specific, on

which liability ought to turn. In this case, an important prin-

ciple of liability is the requirernent that knowledge of falsity be

shown on the record by “clear and convincing” evidence. It

simply was not. And neither the “clearly erroneous” standard

embodied in Fed.R.Civ.P. 52(a) nor anything else prevented

the court of appeals from saying just that. Indeed, any other

conclusion would have a crippling effect on execution of the

fundamental principles embodied in this Court's decision in

New York Times.

Il. THe Court or Aprpeats Property MADE AN INDEPENDENT

JUDGMENT CONCERNING WHETHER “ACTUAL MALICE” HAD

BEEN SHOWN ON THE Recorp By “CLEAR AND CONVINCING”

EVIDENCE,

A. The Court of Appeals’ Independent Judgment was Prop-

erly Exercised Because of its Obligation to Insure that

Constitutional Principles are Constitutionally Applied.

As it began the critical portion of its opinion, the court of

appeals said that its proper “focus [was] on the district court's

holding that Bose proved by clear and convincing evidence

that CU published the words ‘individual instruments . . . tend-

ed to wander about the room’ with knowledge that they were

false or with reckless disregard of their truth or falsity.” Con-

tinuing, the court said:

In performing this review we are not limited to the clear-

ly erroneous standard of Fed.R.Civ.P. 52(a); instead, we

8

must perform a de novo review, independently examin-

ing the record to ensure that the district court has applied

properly the governing constitutional law and that the

plaintiff has indeed satisfied its burden of proof... . At

the same time, we recognize that we are in no position to

consider the credibility of witnesses and must leave ques-

tions of demeanor to the trier of fact.

(App. X. 22-23) (emphasis added).°

As support for the proposition that it was required to ex-

amine independently the entire record, the court of appeals

cited, among other cases, New York Times Co. v. Sullivan,

376 U.S, 254, 285 & n.26 (1964); and Time, Inc. v. Pape, 401

U.S. 279, 284 (1971). Those citations were entirely proper

and mark an appropriate place to begin.

As this Court will recall, the question presented in New

York Times was whether the First Amendment permitted L.B.

Sullivan, one of three elected commissioners of the City of

Montgomery, Alabama, to recover a judgment for libel

against the New York Times under the common law of Ala-

bama, common law which permitted a finding of liability

without any showing of fault and without proof that Sullivan

had been expressly targeted in any of the published remarks.

This Court concluded that the First Amendment did not per-

mit such a judgment and, in the process, announced the now

well-known rule of “actual malice” which governs recovery

for libel by public officials.

This Court did not stop, however, with announcement of a

general rule. After stating that reversal of the judgment was

required because the just-announced liability rules had not

* The emphasized language was not simply a casual phrase tucked into the

middle of the court's opinion. The court said it was focusing on whether

Bose had met its burden of proof at the beginning of its analysis (App. X. 22),

in the middle of its analysis (App. X. 23, 25-26), and again at the end (App.

X. 34). In addition, the authorities it cited for the scope of the review it was

undertaking (App. X 23), all discuss the requirement of “clear and convinc-

ing” proof,

i)

been followed, the Court said that, because a new trial might

be sought, it was appropriate “to review the evidence in the

. . record to determine whether it could constitutionally sup-

port a judgment.” Jd. at 284-285. Explaining, it continued

by saying:

This Court's duty is not limited to the elaboration of con-

stitutional principles; we must also in proper cases review

the evidence to make certain that those principles have

been constitutionally applied. This is such a case, par-

ticularly since the question is one of alleged trespass

across “the line between speech unconditionally

guaranteed and speech which may legitimately be regu-

lated.” In cases where that line must be drawn, the rule

is that we “examine for ourselves the staternents in issue

and the circumstances under which they were made to

see . . . whether they are of a character which the prin-

ciple of the First Amendment, as adopted by the Due

Process Clause of the Fourteenth Amendment, protect.”

Id. at 285 (citations omitted).

Following its independent examination, this Court conclud-

ed, among other things, that “the proof presented to show ac-

tual malice lacks the convincing clarity which the constitu-

tional standard demands, and hence . . . it would not constitu-

tionally sustain the judgment for respondent under the proper

rule of law.” Id. at 285-286.’

In Time, Inc. v. Pape, 401 U.S. 279 (1971), this Court re-

instated a directed verdict for the defendant which the Court

of Appeals for the Seventh Circuit had reversed. This time the

issue was whether, given the evidence presented during the

’This Court also concluded, again based on that independent examina-

tion, that the evidence was constitutionally “incapable of supporting the

jury’s finding that the allegedly libelous statements were made ‘of and con-

cerning” Sullivan, notwithstanding the testimony of several individuals to

the effect that they understood the statements in question to refer to him im-

plicitly because of his official position. New York Times Co. v. Sullivan, 376

U.S. at 288-291 & n.28.

10

plaintiff's case-in-chief, a jury question existed concerning the

“actual malice” of Time when it published an article about

Pape. Again, this Court said that the scope of its review was

premised ow “the settled principle that ‘[i]n cases in which

there is a claim of denial of rights under the Federal Constitu-

tion, this Court is not bound by conclusions of lower courts,

but will re-examine the evidentiary basis on which those con-

clusions are founded.’” Jd. at 284 (emphasis added) (citation

omitted), It then reviewed in some detail the basis for the

statements the Time article contained and, after that review,

concluded that Time's “conduct reflected at most an error of

judgment” which was not sufficient to send to a jury the ques-

tion whether Time had published the article with “actual

malice.” Jd. at 292.

In other libel cases, as well, this Court has engaged in the

same, intensive, fact-bound review to determine whether

clear and convincing evidence of actual malice was demon-

strated on the record compiled below. E.g., Curtis Publishing

Co. v. Butts, 388 U.S. 130, 156-158, 168-169 (1967); Beckley

Newspapers Corp. v. Hanks, 389 U.S. 81, 83-84 (1967); St.

Amant v. Thompson, 390 U.S. 727, 739-733 (1968); Greenbelt

Cooperative Publishing Association, v. Bresler, 398 U.S, 6, 11

(1970); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 54-57

(1971). See National Association of Letter Carriers v. Austin,

418 U.S, 264, 282 (1974).°

But the rule requiring independent examination of the en-

tire record to determine whether speech is protected is not a

rule unique to libel cases. Indeed that rule, as the cited cases

recognize, generally manifests the important obligation this

Court has, not only to announce constitutional principles, but

to ensure that judgments are rendered in accordance with

"Indeed, those who have, at times, disagreed with adoption of a prophy-

lactic rule which might effectively ease, at least somewhat, the burden un-

doubtedly imposed on this Court by the requirement for independent review

have adverted to the efficacy of that type of review as an argument against

the prophylactic rule itself. Certz v. Robert Welch, Inc., 418 U.S, 323,

397-398 (1974) (White, J., dissenting).

1]

those principles.’ Chiefly for two reasons, that obligation

often makes broad and independent review of the entire

record unavoidable.

Sometimes independent review is required because the con-

stitutional principle involved is itself so fact-sensitive that

broad review is necessary for its very application. For that

reason, only three months ago, this Court independently re-

viewed the record in a case which, like this one, came to it

after a bench trial in the United States District Court. In Con-

nick v, Myers, _. U.S. ___, 51 U.S.L.W. 4436 (U.S., April

20, 1983) (No. 81-1251), the question was whether, and to

what extent, the First Amendment limited the right of a public

employer to discharge an employee for speech-related activity.

Reversing a judgment in favor of the employee, this Court

held that the district court erred in concluding that the em-

ployee’s speech involved “matters of public importance and

concern” and that it had imposed on the employer “an unduly

onerous burden” to show that the reasons for discharge were

unrelated to exercise of protected freedoms. Id. at 4437, 4439.

Again, however, this Court did not stop there. Instead, it

went on to examine for itself the statements in issue and the

circumstances under which they were made to reach the “in-

dependent constitutional judgment on the facts of the case”

that the employer's discharge of the employee had been prop-

er. Id, at 4439 n.10. It did so because the ultimate constitu-

tional judgment turned on a proper resolution of the “balance

between the interests of the [employee], as a citizen, in com-

menting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the

public services it performs through its employees.” Jd. at

4436, citing Pickering v. Board of Education, 391 U.S. 563,

568 (1968). See also Branti v. Finkel, 445 U.S. 507, 518

(1980); Elrod v. Burns, 427 U.S. 347, 367-368 (1976). Given

the nature of the constitutional principle at issue, involving as

* This Court's power, after all, is the power to correct “wrong judgments,

not to revise vpinions.” Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945).

12

it did a broad-gauge balance of differing interests, proper ap-

plication of that principle necessarily required an extensive in-

dependent review of, and judgment on, the facts of the entire

case,'°

More commonly, however, independent review is required

because the constitutional rule of decision, although couched

in terms which, at first blush, appear relatively firm, certain

and “factual,” is not fully self-defining and thus gains life and

meaning only by its application to the facts of specific cases.

See Culombe v. Connecticut, 367 U.S, 568, 604-605, 622

(1961) (opinion of Frankfurter, J.). In both Edwards v. South

Carolina, 372 U.S. 229 (1963) and Cox v. Louisiana, 379 U.S.

536 (1965), for example, the question was whether conduct

the state had punished as a criminal “breach of the peace”

nonetheless constituted a “peaceable assembly” fully protected

by the First Amendment. To answer that question, this Court

reviewed in substantial detail the evidence contained in the

record and concluded for itself that petitioners’ activity had

been the kind of “peaceable assembly” the First Amendment

was designed to protect.''

"© See also Fiske v. Kansas, 274 U.S. 380 (1927), a due process case, albeit a

due process case clearly tinged with First Amendment principles. By its very

nature, application of the Due Process Clause often requires a fact-sensitive

and thorough review of the evidence in order to determine whether the ac-

tion of the state in a given case has met constitutional requirements. See,

¢.g., Drope v. Missouri, 420 U.S. 162 (1975) (competence to stand trial);

feasion); Moore v. Michigan, 355 U.S. 155 (1957) (right to counsel and volun-

tarines of guilty plea); Chamber: v. Florida, 308 U.S. 287, 288-889 (1940)

(voluntariness of confession).

"In Cos, the relevant evidence itself was not free of substantial ambigui-

per y nye stag ae and thus this Court wes required to analyze the

waccwm= order to make its independent constitutional

at

13

Similarly, in NAACP v. Claiborne Hardware Co., __. U.S.

__., 50 U.S. L.W. 5122 (U.S., July 2, 1982) (No. 81-202), the

issue was, in part, whether the damages suffered by the re-

spondent as a result of petitioner's boycott had been “proxi-

mately caused” by unlawful activity or whether those damages

resulted from activity the First Amendment protected, That

issue was one of constitutional magnitude because of this

Court's earlier holding, reaffirmed in Claiborne, that “the per-

missible scope of state remedies . . . is strictly confined to the

direct consequences of . . . [violent] conduct, and does not in-

clude consequences resulting from associated peaceful

picketing.” United Mine Workers v. Gibbs, 383 U.S. 715, 729

(1966). Proximate causation, although common grist for find-

ers of fact, is by no means a self-defining concept. Because the

existence or non-existence of that causation marked the dividing

line between constitutional immunity and substantial tort

damages, the obligation to insure constitutional application of

constitutional principles thus made an independent judgment

on the facts of the case inescapable. See NAACP v. Claiborne

Hardware Co., 50 U.S.L.W. at 5124 n.10, 5130 n.50."*

"Other examples abound. In Pennekamp v. Florida, 328 U.S. 331, 335

(1946), the question was whether a newspaper editorial and cartoon con-

stituted a “clear and present danger” to the orderly and fair administration of

justice. See also Eaton v. City of Tulsa, 415 U.S. 687, 608 (1974); In re Lit-

tle, 404 U.S. 553 (1973). In Jacobellis v. Ohio, 378 U.S. 184 (1964), the

question was whether the pre- Miller standards for determining whether a

work was obscene had in fact been met. In Jenkins v. Ceorgia, 418 U.S. 153,

160-161 (1974), the question was whether the post-Miller standards of

“prurient interest” and “patent offensiveness” had been met. In Hes v. in-

diana, 414 U.S. 105 (1973), the question was, in part, whether the words

used were “fighting words.” In Cantwell v. Connecticut, 310 U.S. 296

(1940), the question was whether Cantwell's conduct was a “clear and pres-

ent menace to public peace and order.” In Watts v. United States, 304 U.S.

prin ey nr ag ye Ag me cere yea ae 8 ge

amounted to a “threat” to the life of the President of the United States.

in Tinker v. Des Motnes Independent Community School District, 383 U.S.

503, 508 (1969), the question was whether there had been material and sub-

stantial interference “with the requirements of appropriate discipline in the

operation of school.”

14

The cited cases demonstrate the importance of distinguish-

ing between “issues of fact that are here foreclosed and issues

which, though cast in the form of determinations of fact, are

the very issues to review which this Court sits.” Watts v. In-

diana, 338 U.S. 49, 51 (1949) (opinion of Frankfurter, J.); ac-

cord Drope v. Missouri, 420 U.S, 162, 175 n.10 (1975). Those

cases show that the obligation to ensure constitutional applica-

tion of constitutional principles cannot be avoided by articu-

lating standards which break the ultimate principle down into

constituent parts, labeling each of those constituent parts a

“fact” and then repressing judicial review of the facts ul-

timately found so long as the fact-finder appéared to nod at

the relevant standards. To do that — to reduce constitutional

principles to an amalgam of discrete and all-but-unreviewable

facts — would give rise to a clear danger that those principles

might be frustrated by “distorted fact-finding.” Haynes v.

Washington, 373 U.S. 503, 516 (1963).'* The power of a re-

viewing court to conduct an independent review and to reach

its own constitutional judgment on the facts of the case thus is

itself a substantial part of the process by which the lines

separating protected speech from criminal or tortious behavior

are staked. Miller v. California, 413 U.S. 15, 25 (1973). See

Jenkins v. Georgia, 418 U.S. 153, 160 (1974); Kotis v. Wiscon-

sin, 408 U.S. 229, 232 (1972).'*

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15

If independent review of the entire record is often required

to ensure that the “constitutional facts,” Kois v. Wisconsin,

408 U.S. at 232, see Rosenbloom v. Metromedia, Inc., 403

U.S. 29, 54 (1971) (plurality opinion); Ashe v. Swenson, 397

U.S. 436, 443 (1970), on which liability turns do indeed exist,

then surely independent review of the process by which those

facts are found in the trial court is both necessary and proper.

As this Court has recognized, that process is an important part

of the protective fabric with which First Amendment rights

are cloaked. See Carroll v. President & Commissioners of

Princess Anne, 393 U.S. 175, 183 (1968); Monaghan, First

Amendment “ Due Process,” 83 Harv. L. Rev. 518, 534 (1970).

See generally Freedman v. Maryland, 380 U.S. 51 (1965). In-

deed, that process is one of the “sensitive tools” used to

separate protected speech from unlawful activity, Speiser v.

Randall, 357 U.S. 513, 525 (1958).

Proper allocation of the burden of proof is one important

ingredient of the protection afforded to First Amendment

rights in the fact-finding process. Speiser v. Randall, 357 U.S.

at 525. An equally important component of that protection,

however, results from the quantum and quality of proof which

must be brought forward by the party on whom the burden re-

poses. As the court of appeals fully recognized in this case, see

App. X. 26, the constitutional requirement of proof by clear

and convincing evidence, New York Times Co. v. Sullivan,

376 U.S. 254, 285-286 (1964), itself “serves to allocate the risk

of error between the litigants and to indicate the relative im-

portance attached to the ultimate decision.” Addington v.

amounts to knowledge of “fal.cy” for purposes of applying the constitutional

rule and whether the relevant knowledge must include knowledge of the

defamatory innuendo — in this case that the sounds were “bizarre” and “gro-

tesque” (App. X. 101, 105) — lurking in the words actually used. Ser Re

statement (Second) of Torts § 580A, comment d. The latter question is par-

ticularly important in cases like this where the speaker uses words which ex-

pressly contradic: the asserted innuendo See App. X. 49 (“With

music,

|

16

Texas, 441 U.S. 418, 423 (1979). See also In re Winship, 397

U.S, 358, 363-364 (1970),

But the term “clear and convincing,” like the term “clear

and present danger” or the term “proximate cause” or the term

“patent offensiveness,” is not fully self-defining. To be sure,

the terms provide a guide to appropriate decision-making and

they show the general area of focus for proper fact-finding.

See Addington v. Texas, 441 U.S. at 423-425; In re Winship,

397 U.S. at 370 (Harlan, J., concurring). A determination

whether the standard has been met in a given case, however,

ultimately is a value-laden decision which must be made only

after the entire record has been canvassed.

Indeed, there is no other way to do it. Surely, the question

whether “clear and convincing” evidence has been presented

to the trier of fact is not itself a fact like the amount owed by

one private partner in a retail shoe business to another. Cf,

Columbus Board of Education v. Penick, 443 U.S. 449, 491

(1979) (Rehnquist, J., dissenting). How “clear,” for example,

must “clear” evidence be? How “convincing” must “convinc-

ing” evidence be? One cannot reduce the answers to those

questions to a formula easily applicable always and ever. But

the answers to those questions are enormously important for,

in part, those answers mark the dividing line between speech

which is protected by the First Amendment and that which is

not. If constitutional principles are to be applied in constitu-

tional fashion, then the reviewing court must have the ability

to determine for itself whether the fact-finding process has

proceeded in appropriate fashion. That, as stated, can only

be done by taking an independent look at the entire record.

The issue thus posed by this case — whether Bose satisfied

its burden of proving by clear and convincing evidence that

CU knew its publication was false at the time that publication

was made — is substantially different from the issue posed in

the cases cited by Bose and decided by this Court over the past

several years. E.g., Columbus Board of Education v. Penick,

443 U.S. 449 (1979); Dayton Board of Education v. Brinkman,

17

443 U.S. 526 (1979); Rogers v. Lodge, __. U.S. ___., 530

U.S.L.W. 5041 (U.S., July 1, 1982) (No. 80-2100); Inwood

Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844

(1982); Pullman-Standard v. Swint, 456 U.S. 273 (1982).'* In

each of those cases, the question decided by the trial court was

whether an individual or group did or did not have a certain

“intent.” The issue before this Court in each of those cases

was whether the appellate court could review for itself the

record compiled in the trial court and come to its own conclu-

sions on that question notwithstanding the requirements of

Fed.R.Civ.P. 52(a). Not at issue in any of those cases were the

threshold questions whether the trial court correctly allocated

the burden of proof or correctly determined that the quantum

and quality of evidence adduced b: the party having the

burden met the relevant standard.

It is obvious, however, that the question whether the record

contains the quantum and quality of evidence necessary to

support a conclusion that a person did or did not have a given

intent and the question whether that intent in fact existed are

two entirely separate questions. See, e.g., Columbus Board of

Education v. Penick, 443 U.S. 449, 468 (1979) (Burger, C.]J.,

concurring).'* Indeed, the difference between the two is what

'S This case is distinguishable at once from Inwood and Pullman-Standard

because those cases involved questions cf statutory construction alone.

Resolution of the issues those cases presented thus did not mean the difference

between preservation of a constitutional right and violation of it.

“*This Court repeatedly has held that a finding is “clearly erroneous”

when, “although there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has

been committed.” United States v. United Stetes Gypsum Co., 333 U.S. 364,

395 (1948) (emphasis added). Accord Inwood Laboratories, Inc. v. Ives La-

boratories, Inc., 456 U.S. 844 (1982); Pullman-Standard v. Swint, 456 U.S.

273 (1982). As those words make clear, before arriving at a conviction that a

mistake has been committed, the reviewing court must conclude as a prelim-

inary matter that there is some evidence on the record sufficient to support

the court's finding. In the vast majority of cases in which the fact at issue

need be proved only by a preponderance of the evidence, this preliminary

conclusion understandably is reached with little or no discussion by the re-

18

gives to the “possibility of mistaken fact-finding. . . inherent

in all litigation” which this Court so fully discussed in Speiser

v. Randall, 357 U.S. 513, 525-526 (1958). And if both ques-

tions were left to the near-final decision of the trial court, ap-

pellate review would lose much, if not all, of its role in assur-

ing that First Amendment rights were fully and carefully pro-

tected.

Properly viewed, then, this case is not one in which the

court of appeals manifested a belief that it was free to make up

its own mind about the fact on which liability turned. Cf.

Pullman-Standard v. Swint, 456 U.S. 273, 284-285 (1982).

viewing court, because evidence of virtually any quality or quantity is

capable of being found more persuasive by the fact-finder than evidence of

any quality or quantity to the contrary. This characteristic of the prepond-

erance of the evidence standard is true whether the fact at issue is the color of

a traffic light or the existence of discriminatory intent under Title VII of the

Civil Rights Act. In both cases, therefore, the only difficult question to be

resolved by the reviewing court is whether the trial court decided that fact

against the clear weight of the evidence — in other words, whether the trial

court's finding was clearly erroneous. See Pullman-Standard v. Swint, 456

U.S. 273 (1982).

On the other hand, when the fact at issue must be proved by more than a

mere preponderance of the evidence — by clear and convincing evidence —-

the first tier in the two-tiered process of inquiry just described achieves far

greater significance. For the appellate court must in the first instance ask

itself not merely whether there is any evidence on the record which, if be-

lieved, could tend to prove the fact at issue, but whether the evidence on the

record as a whole is of a quality and quantity which is “clear and

convincing.” See Santosky v. Kramer, 455 U.S. 745, 764 (1982); Addington

v. Texas, 441 U.S. 418, 424-425 (1979). As has been emphasized earlier, that

is a question which is extremely important yet not easily resolved.

In this case, after a thorough review of the record in light of existing legal

standards governing the meaning of “clear and convincing” evidence in the

context of First Amendment cases, the court of appeals answered the first

question in the negative. Accordingly, it was unnecessary for that court even

to reach the question which would have brought into play the clearly er-

roneous standard of Fed.R.Civ.P. 52(a) — that is, whether, on the entire

evidence, it was left with the firm conviction that the district court had been

mistaken in concluding that CU published the words “instruments . . . tend-

ed to wander about the room” with knowledge that they were false or with

reckless disregard of their truth or falsity.

19

Instead, the court of appeals reviewed the entire record to

determine whether the existence of that fact was shown on the

record by the quantum and quality of evidence the Constitu-

tion commands. Because the answer to that question deter-

mined whether CU’s speech was or was not protected by the

First Amendment to the Constitution, the case was a “proper”

one for review of “the evidence to make certain that [the con-

stitutional principles embodied in the “clear and convincing”

rule] ha[d] been constitutionally applied.” New York Times

Co. v. Sullivan, 376 U.S. 254, 285 (1964). In conducting that

review and answering that question, the court of appeals thus

was not bound by Fed.R.Civ.P.52(a). As will be demon-

strated shortly, the constitutional judgment reached by the

court of appeals after its review was surely correct.

B. Even if the Rule Requiring Proof by “Clear and Con-

vincing” Evidence is Not of Constitutional Dimension,

the Court of Appeals Properly Exercised Its Independent

Judgment to Determine Whether thet Standard Had

Been Met.

As mentioned, earlier, the question considered by the court

of appeals was whether the evidence produced by Bose satis-

fied the “clear and convincing” standard required by New

York Times Co. v. Sullivan, 376 U.S. 254, 285-286 (1964), in

cases like this. Even if the “clear and convincing” rule does

not derive from the Constitution itself, that question histor-

ically and properly has been viewed by this Court as one

which did not bind a reviewing court to the confines of

Fed.R.Civ.P.52(a).

At bottom, the requirement that knowledge of falsity be

shown on the record by “clear and convincing” evidence

represents a choice concerning who bears the risk of erroneous

fact-finding. The common “preponderance of the evidence”

standard “allows both parties to ‘share the risk of error in

roughly equal fashion.’ . . . Any other standard expresses a

20

preference for one side’s interests.” Herman & MacLean v.

Huddleston, __. U.S. ___,, 51 U.S.L.W. 4099, 4103 (U.S.,

January 24, 1983) (Nos. 81-680, 81-1076). See also Santosky v.

Kramer, 455 U.S. 745, 755 (1982); Addington v. Texas, 441

U.S. 418, 423 (1979). But that preference is not a preference

abstractly made. Instead, it represents a determination that

the “social disutility” of an erroneous judgment penalizing

speech is much greater than the “social disutility” of a wrong

judgment in the speaker's favor. In re Winship, 397 U.S. 358,

372 (1970) (Harlan, J., concurring); Schauer, Fear, Risk and

The First Amendment: Unraveling the “Chilling Effect,” 58

B.U.L. Rev. 685, 702-703, 708-709 (1978).'”

Denaturalization and deportation cases illustrate the point.

In Schneiderman v. United States, 320 U.S. 118 (1943), this

Court held that the government must prove its case with

“clear, unequivocal and convincing” evidence, for “[wJere the

law otherwise, valuable rights would rest upon a slender reed,

and the security of the status of our naturalized citizens might

depend in considerable degree upon the political temper of

majority thought and stresses of the times.” Id. at 159. Ac-

cord Fedorenko v. United States, 449 U.S. 490 (1981); Wood-

by v. Immigration & Naturalization Service, 385 U.S. 276

'" The infrequency with which this Court has imposed the requirenfent of

proof by “clear and convincing” evidence attests to the value of the interests

it is designed to protect. In addition to the libel cases, the “clear and con-

vincing” requirement appears to have a current life as an evidentiary rule in

five other areas: revocation of parental rights, Sentosky v. Kramer, 455 U.S.

745 (1982); denaturalization proceedings, Fedorenko v. United States, 449

U.S. 490 (1981); civil commitment proceedings, Addington v. Texas, 441

U.S. 418 (1979); the existence of an independent basis for an in-court identifi-

cation after an identification at a tainted lineup, United States v. Wade, 388

U.S. 218 (1967); and certain disputes between states tendered to this Court

for resolution under its original jurisdiction, Colorado v. New Mexico, ___

U.S. __, 51 U.S.L.W. 4045, 4048 & n.13 (U.S., December 13, 1982) (No.

80, Orig.). In a non-evidentiary sense, the requirement has been applied to

showings that the legislature intended to preciude al] judicial review of an

administrative action. FTC v. Standard Oil Company, 449 U.S. 232, 249

n.5 (1980) (Stevens, J. concurring).

21

(1966); Costello v. United States, 365 U.S. 265 (1961); Chaunt

v. United States, 364 U.S. 350 (1960); Nishikawa v. Dulles,

356 U.S. 129 (1958); Baumgartner v. United States, 322 U.S.

665 (1944).

After announcing that standard, the Court reviewed for

itself the evidence in the record and concluded that the stand-

ard had not been met. Schneiderman v. United States, 320

U.S. at 125, 144 (1943). Explaining its analysis of one aspect

of the record which the Government urged was sufficient to

support the judgment rendered by the court below, this Court

said as follows:

We do not say that a reasonable man could not possibly

have found, as the district court did, that the Communist

Party in 1927 actively urged the overthrow of the Gov-

ernment by force and violence. But that is not the issue

here. We are not concerned with the question whether a

reasonable man might so conclude, nor with the narrow

issue whether administrative findings to that effect are so

lacking in evidentiary support as to amount to a denial of

due process. As pointed out before, this is a denaturaliza-

tion proceeding in which, if the Government is entitled to

attack a finding of attachment . . . the burden rests upon

it to prove the alleged lack of attachment by “clear, une-

quivocal and convincing” evidence. That burden has not

been carried. The government has not proved that peti-

tioner’s beliefs on the subject of force and violence were

such that he was not attached to the Constitution in 1927.

Id. at 153-154.

The following term, in Baumgartner v. United States, 322

U.S. 665 (1944), this Court announced the principled basis for

its conclusion that an appellate court’s own view of the record

determined whether “clear, unequivocal and convincing” evi-

dence was present. This Court said:

22

It is idle to try to capture and confine the spirit of this

requirement of proof within any fixed form of words.

The exercise of our judgment is of course not at

large... . But wemustbe. . . watchful that citizenship

once bestowed should not be in jeopardy nor in fear of ex-

ercising its American freedom through a too easy finding

that citizenship was disloyally acquired. We have suffi-

ciently indicated the considerations of policy, derived

from the traditions of our people, that require solid proof

that citizenship was falsely and fraudulently procured.

These considerations must guide our judicial judgment.

Nor can the duty of exercising a judgment be evaded by

the illusory definiteness of any formula.

Id. at 676.

While suggesting that the question whether the rigorous

standard of proof had been met was an “ultimate” fact which

an appellate court was not bound to review in the manner it

was compelled to review “subsidiary” facts, this Court admit-

ted that the difference between an “ultimate fact” and a

“question of law,” if any, was not always easy to determine.

Concluding its discussion of the matter, the court said as fol-

lows:

Suffice it to say that emphasis on the importance of

“clear, unequivocal, and convincing” proof ... on

which to rest the cancellation of a certificate of

naturalization would be lost if the ascertainment by the

lower courts whether that exacting standard of proof had

been satisfied on the whole record were to be deemed a

“fact” of the same order as all other “facts,” not open to

review here.

Id, at 671. That approach was reaffirmed most recently in

Fedorenko v. United States, 449 U.S. 490 (1981).'*

As this Court itself observed in Pullman-Standard v. Swint, 456 U.S. 273

(1982), the label “ultimate finding” is not a particularly helpful analytical

23

The “clear, unequivocal, and convincing” standard applied

in the denaturalization cases did not stem from the Constitu-

tion itself. Vance v. Terrazas, 444 U.S. 252 (1980). See Her-

man ¢ MacLean v. Huddleston, ___._ U.S. ___, 51 U.S.L.W.

4099, 4103 (U.S., January 24, 1983) (No. 81-680); Steadman

v. SEC, 450 U.S. 91, 102 n.22 (1981). Nonetheless, the values

protected by that standard involved “judgments lying close to

opinion regarding the whole nature of our Government and

the duties and immunities of citizenship.” Baumgartner v.

United States, 322 U.S. 665, 671 (1944). Asa result, however

labeled, the “clear, unequivocal and convincing” rule is not a

fact like the color of the traffic light at the time of the accident

but “clearly implies the application of standards of law.”

Baumgartner v. United States, 322 U.S. at 651. Accord

Pullman-Standard v. Swint, 456 U.S. at 288. Moreover, the

phrase “clear and convincing” implies a “qualitative as well as

a quantitative judgment.” See Santosky v. Kramer, 455 U.S.

745, 764 (1982); Addington v. Texas, 441 U.S. 418, 424-425

(1979). Cf. In re Winship, 397 U.S. 358, 364 (1970); Stead-

man v. SEC, 450 U.S. 91, 98, 102 n.22 (1981). And that

qualitative judgment, at least, cannot be reduced to “the il-

lusory definiteness of a formula.” Baumgartner v. United

States, 322 U.S. at 676.

If the qualitative judgment embodied in the “clear and con-

vincing” rule inherently escapes the “illusory definiteness” of

reformulation, if its function as a bulwark against erosion of

important rights would be seriously undercut by treating it as

a “fact” like all others not open to review and if it is a finding

which has no life independent of a legal standard, then surely

independent review of the type undertaken by the court of

tool. The real question in each case is whether the finding of the district

court under review has a life independent of a legal standard or concept or

whether that legal standard or concept is an indispensable element of the

finding in question. See generally Pullman-Standard v. Swint, 456 U.S. at

286-287 n.19 (1982); Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 491

(1937); of. Fiske v. Kansas, 274 U.S. 380, 385-386 (1927).

24

appeals here was proper. Indeed, only through such inde-

pendent review is it possible to insure that the qualitative judg-

ment the rule embodies does in fact protect the rights it is de-

signed to serve.

III. Tue Court or Apreats Cornrnecrty CONCLUDED THAT Bose

Hap Not Proven Cv 3 Acruat MA.ice sy CLEAR AND Con-

VINCING EVIDENCE.

In carrying out its review of the record, the court of appeals

summarized the evidence — all virtually uncontested — it con-

sidered in reaching the conclusion that petitioner had failed to

meet its burden of proof. First, the court reviewed the evidence

as to the state of mind of Seligson, one of the two engineers who

conducted the relevant listening tests and upon whose written

description of those tests the article was based. Even giving due

regard to the district court's disbelief of Seligson’s testimony

that the words used in the article accurately described what he

heard, the court of appeals properly concluded that “(tJhe

evidence presented merely shows that the words in the article

may not have described precisely what the two panelists heard

during the listening test. . . . Certainly this does not support an

inference of actual malice.” (App. X. 35.)

That conclusion is amply supported by cases this Court has

decided. The district court's finding with respect to Seligson’s

“actual malice” was based on its that the word “about”

was false coupled with. (a) its of Seligson’s testimony

that he thought the word, incontext, accurately described what

he heard, and (b) its conel that he was too intelligent a

person to equate the words " and “across” (App. X.

141-142). To the extent that the district court concluded that

Bose’s burden was satisfied by its disbelief of Seligson’s

testimony, the district court was wrong. As this Court heid in.

Nishikawa v. Dulles, 356 U.S. \29, 137 (1968), clear and con-

vincing evidence of a fact is not supplied by disbelief of testi-

25

mony concerning the non-existence of that fact.'* To the ex-

tent that the district court relied on its conclusion as to the

“plain, ordinary meaning” of the word “about” and on Selig-

son's being too intelligent to mistake that meaning, the court

was using an objective test of Seligson’s state of mind which is

wholly incompatible with the “actual malice” standard ap-

plicable to this case as a whole. St. Amant v, Thompson, 390

U.S. 727, 731 (1968); Garrison v. Louisiana, 379 U.S. 64,

78-79 (1964).

The court of appeals also reviewed the evidence regarding

the editorial procedures followed by CU in the course of

preparing the article for publication, Despite the trial court's

suggestion at trial that such evidence was irrelevant (J.A.

130-131), a brief look at that evidence reveals that it, too, was

appropriately reviewed by the court of appeals to determine

whether the burden of proving actual malice had been met.

Seligson’s written report of the phenomena he observed during

the listening tests, the “report to editorial,” was sent to CU's

Editorial Department to assist it in preparing the article for

publication (J.A. 125-126). Although the Editorial Depart-

ment sent the manuscript to Seligson for his review, Seligson

did not have final authority to approve its content prior to

publication (J.A. 145-146). As the court of appeals recog-

nized, during the course of this editorial process, “the

[Editorial] Department changed Seligson’s words that instru-

'* Disbelief of testimony concerning the existence of a fact is not affirma-

tive evidence of the non-existence of that fact in any context. As the United

States Court of Appeals for the First Circuit consistently has said, “however

satisfied a court may be from the witness's demeanor or his demonstrated un-

truthfulness in other respects that certain testimony is false, it cannot use such

disbelief alone to support a finding that the opposite was the fact.” Jenigan v.

Taylor, 344 F.2d 781, 784 (ist Cir.), cert. denied, 382 U.S. 879 (1965). See

generally Moore v. Chesapeake & Ohio Ry., 40 U.S. 576-577 (1951);.

Beaumont v. Morgan, 427 F.2d 667, 6723-673 (ist Cir. 1970); NLAB v.

ee Se Se aoe ee

surance Co. v. Summers, 403 F Od 971, 974 (ist Cir. 1968); NLAB v. Joseph

Antell, Inc., 358 F 2d 680, 683 (ist Cir. 1968).

26

ments ‘suffered [from] a tendency to wander around the room’ to

the staternent ultimately published that instruments ‘tended to

wander about the room.’” (App. X. 33.) See J.A. 160-161, The

manuscript prepared by CU's Editorial Department also was

reviewed by Monte Florman, then CU's Associate Technical

Director and one of Seligson’s superiors (J.A. 130). Florman

testified that, when conducting his review of the manuscript, he

“never really pondered” the meaning of the word “about” as used

in the relevant phrase (J.A. 219). See App. X. 34.”

The most that can be concluded from this evidence, said the

court of appeals, “is that in reviewing the manuscript CU

employees could have inquired more painstakingly into the

precise language being used.” (App. X. 34.) That conclusion,

against the backdrop of this record, was surely proper, In-

deed, it is quite similar to the conclusion reached by this Court

itself in Time, Inc. v. Pape, 401 U.S. 279, 292 (1971), where,

as here, the source materials on which the relevant article was

based themselves were not free from ambiguity."

In its brief and in its statement of the questions presented, Bose argues

that it was improper for the court of appeals to consider Florman’s testimony

regarding his role in the editorial process because “(t]he District Court judge

had found expressly that ‘Florman'’s testimony is wholly untrustworthy and is

not credible’ (App. X163).” (Brief for Petitioner, pp. ti, 69.) This quote from

the district court's opinion is taken out of its limited context and altogether

misstates the district court's finding as to Florman’s credibility. Florman

testified on a number of subjects at trial, among them his observations during

a listening test he conducted on the Bose 901's after Bose had to

respondent about the article (J.A. 203-206). It was Florman’s

testimony that he had heard “unusual auditory effects” during this post-

CT ne an en

(App. X. 163). Florman also testified at some length as to the editorial pro-

cxhures followed by respondent in preparing the article for publication. See

J.A. 197-200, 214-219. Far from disregarding it, the district court explicitly

cconstauidllenetvaaieemaelteedatae word “about” in the

contest of the statement concerning wandering (App. X. 103),

and, indeed, directly quoted from Florman's description of the editorial

process in its opinion (App. X. 167-168).

“ Bose that other evidence, neither relied on by the district court

nor raised by Bose in the court of appeals, supports the finding that it

.

27

In sum, the court of appeals correctly concluded that

neither the evidence as to the state of mind of Seligson, nor the

evidence as to the editorial procedures followed by CU nor any

other evidence on the record, taken by itself or cumulatively,

was sufficient to prove with “convincing clarity” that the

words at issue were published with “actual malice.” A con-

trary conclusion would mean that the burden of proving

knowledge of falsity by “clear and convincing evidence” could

be shouldered by proof of little more than falsity alone. But see

n.4, supra. That, of course, is the very result the “clear and

convincing” standard was designed to prevent.

Conclusion.

Although this case involves on its face a question of pro-

cedure, the answer to that question is enormously important.

As Justice Frankfurter put it forty years ago, the “history of

established actual malice with clear and convincing proof (Brief for Peti-

tioner, pp. 54-60). It does not. First, the fact that the listening panel used

for conducting the special test on the Bose 901's was different from the panel

used in conducting the separate “cricket test” described in the article simply

is irrelevant to the question whether CU knew or acted with reckless

disregard of whether the words “instruments . . . tended to wander about

the room” accurately described what the panelists who, in fact, tested the

Bose 901's heard. Second, the claim that Bose failed to play the recordings

used during the special listening test through a conventional loudspeaker as

well as through the Bose 901's would also be irrelevant to the actual malice

issue if it were true. In fact, CU did employ a reference loudspeaker during

the special! listening test to “see what ordinary loudspeakers . . . would sound

like under the same circumstances” (J.A. 101-103). Third, Bose’s claim that

actual malice can be inferred from CU's use of the word “instruments” in

describing the wandering effect since Seligson and Lefkow testified that only

the violin “wandered”, is without merit. The district court ruled that CU

“reported accurately that instruments . . . tended to wander. . . .” (App. X.

108.) Finally, the fact that CU did not identify the records it wed in the

listening tests when asked to do so by Bose after the article had been pub-

lished is of no relevance whatsoever to CU's state of mind at the time the arti-

cle was published. See St. Amant v. Thompson, 300 U.S. 727, 731 (1968);

Garrison v. Louisiana, 370 U.S. 64, 74 (1964).

28

liberty has largely been the history of observance of procedural

safeguards.” McNabb v. United States, 318 U.S. 332, 347 (1943).

The power and duty of a reviewing court to reach in a proper

case its own judgment concerning whether constitutional prin-

ciples have been constitutionally applied is an important ingre-

dient of the strategic protection afforded to rights preserved by

the First Amendment. It is an important ingredient precisély

because it constitutes the only sound means by which often am-

biguous rules of decision possibly can take on meaningful form.

In this case, the court of appeals utilized the scope of review

historically reserved to an appellate court when constitutional

judgments must be made and properly concluded that Bose had

not satisfied its burden of producing “clear and convincing

evidence” of CU's “actual malice.” In so doing, the court of ap-

peals did not invade the territory reserved to the trier of fact by

Rule 52(a). As a result, the judgment of the court of appeals

should be affirmed.

Respectfully submitted,

JAMES F. McHUGH,

Counsel of Record

JANE E. SERENE,

BINGHAM, DANA & GOULD,

100 Federal Street,

Boston, Massachusegts 02110.

Of Counsel: (617) 357-9300

CHARLES S. SIMS,

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION,

132 West 43rd Street,

New York, New York 10036.

(212) 944-9800

JOHN REINSTEIN,

CIVIL LIBERTIES UNION OF

MASSACHUSETTS

47 Winter Street,

Boston, Massachusetts 02108.

(617) 462-3170