Petition — Larsen v. Fisher

IN THE Eade

Supreme Court of the Anited States st

a z

October Term, 1983

YVONNE LARSEN, W. DANIEL LARSEN,

JOSEPH K. HARMON, and EDWIN J. GRAY,

Petitioners,

vs.

JULIE FISHER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL, STATE OF CALIFORNIA,

FOURTH APPELLATE DISTRICT

Oscar F. Irwin

Counsel of Record

Margaret Z. Johns

HILLYER & IRWIN

530 ‘‘B’’ Street, 14th Floor

San Diego, California 92101

Telephone: (619) 234-6121

Attorneys for Petitioners

INTERIM PRINTING & MAILING COMPANY

1105 West MORENA BOULEVARD, SAN DIEGO, CALIFORNIA 92110 — 275-3050

QUESTIONS PRESENTED

1. Whether the First Amendment to the United States Constitution

compels entry of summary judgment in a civil defamation action brought

by a defeated public official against her successful challenger for cam-

paign statements criticizing her performance in office where the evidence

is insufficient to support a finding of actual malice with the convincing

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

2. Whether a candidate for public office can be found to have acted

with actual malice for failing to further investigate criticisms of her op-

ponent’s conduct in office where the candidate relied on reports publish-

ed in the news media and confirmed by a trustworthy source with ‘irst-

hand knowledge of the events.

a. Does a school board candidate have a duty to indepen-

dently investigate information about the incumbent

school board member’s conduct in office which has

been widely reported in local news media?

b. Does aschool board candidate have a duty to repeated-

ly reconfirm reports from the school superintendent

about conversations he had with the incumbent school

board member?

c. Does a school board candidate have a duty to investi-

gate the incumbent’s denial of threatening the school

superintendent where the superintendent has repeated-

ly confirmed that the threats were made?

PARTIES

Petitioners are Yvonne Larsen, W. Daniel Larsen, Joseph K. Harmon,

and Edwin J. Gray. Respondent is Julie Fisher. '

‘Michael Scott-Blair and Copely Press, Inc. were also parties to the proceedings in the

court below. However, these parties were defendants on distinct and severable causes of

action arising out of completely different facts and have no interest in the outcome of the

actions brought by Julie Fisher against Petitioners.

a.

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS INVOLVED.........

STATEMENT OF THE CASE

a

How the Federal Question Was Raised ...............

Finality of the State Court Decision ..................

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW PRESENTS

SIGNIFICANT AND RECURRING

CONSTITUTIONAL ISSUES CONCERNING

THE APPLICATION OF NEW YORK TIMES

CO. V. SULLIVAN, 376 U.S. 254 (1964) ..........

A. Does the New York Times actual malice

B. Does the New York Times actual malice

standard modify traditional summary judgment

rules and prescribe a policy of liberally granting

EE ee

Page

11

a ee

- iii -

TABLE OF CONTENTS (Continued)

Page

C. Can a candidate for public office be found to

have acted with actual malice for failing to

contact her incumbent opponent before making

campaign statements criticizing the incumbent’s

COMETS 6 6. oro ooo head bh eweeeessceus 13

II. THE DECISION BELOW PRESENTS

CONSTITUTIONAL ISSUES CONCERNING

THE APPLICATION OF NEW YORK TIMES

WHICH ARE SIMILAR TO ISSUES ALREADY

PENDING BEFORE THIS COURT .............. 16

CELA, c cbvecidvecencccpestnbesssevaneuimeses 17

- fy -

TABLE OF AUTHORITIES

Alvins v. White,

627 F.2d 637 (3d Cir.

CASES

DP Ciiettesseedncedusauwaney es

Beckley Newspapers Corp. v. Hanks,

389 U.S. 81 (1967)..

oeeeeerereeeereeeereereereeeeereeeeee ees

Bose Corp. v. Consumers Union of the United States, Inc.,

692 F.2d 189 (ist Cir. 1982) petition for cert. granted

51 U.S.L.W. 3774 (1983) (No. 82-1246)... ......6-0 200s

Bussie v. Larson,

501 F.Supp. 1107 (M

ee ie oo ao care oh aks

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975).

ose eeeseeseereseeeeeeseeeeeeeseeeeeeee

Edgartown Police Patrolmen’s Association v. Johnson,

$22 F.Supp. 1149 (D.

oe) I eee ee

Guam Federation of Teachers, Local 1581 v. Ysrael,

492 F.2d 920 (Sth Cir. 1973) cert. denied

419 U.S. 872 (1974).

Hutchinson v. Proxmire,

443 U.S. 111 (1979).

Jacron Sales Co., Inc.

v..Sindorf,

i Cs Ue Neste igveecheadeweneves

Loeb v. New Times Communications Corp.,

SP PSUs BOUED oo ccvcsescodcecvecusas

Martin Marietta Corp.

v. Evening Star,

417 F.Supp. 947 (D.C.D.C. 1976) ............ccc eevee.

Nader v. de Toledano,

408 A.2d 31 (D.C. 1979) cert. denied

444 U.S. 1078 (1980)

Page

10

14

16,17

12

13

9,12

10

11,13

16

11,12

o¥-

TABLE OF AUTHORITIES (Continued)

Page

CASES (Continued)

New York Times Co. v. Sullivan,

De 6 Ss hewn atade ads sb uluwuenesa ne passim

New York Times v. Connor,

rr ee re en. . , oi secdebe sens eppesaees 15

Rodriquez v. Nishiki,

ren Ce. . sreeveuscewes wawueee 10

Rowden v. Amick,

446 S.W.2d 849 (Mo. 1969) ........... > dirpvcacgiarth actor eae 10

Rowe v. Metz,

rn: PCr! . i. evade os senecereakmuceune 10

St. Amant v. Thompson,

oi ae oly kG adam ay Seeman 14

Schultz v. Newsweek, Inc.,

ee a as din ws ae eevee nen 12

Vanderburg v. Newsweek, Inc.,

ee ee Bs os id cee hbad pany eneuneene 15

Velle Transcendental Research Association v. Sanders,

rr ee, ©, SED ok sas cesa<necsvaeeunce 12

Washington Post Co. v. Keogh,

365 F.2d 965 (D.C. Cir. 1966) cert. denied

eee ucwuweedunn ee giles sae 1]

Wasserman v. Time, Inc.,

424 F.2d 920 (D.C. Cir. 1969) cert. denied

so ee cu Cen aten ee kaon ea hater 12

Wolston v. Reader’s Digest Association,

ee MS Wa oh as Coo. ohdWet ene be weekend canuwh 12

- vi -

TABLE OF CONTENTS (Continued)

CASES (Continued)

Woy v. Turner,

Pease, GOs BEEP 6 > ccvcvescvenevcesses

Yiamouyiannis v. Consumers Union of United States, Inc.,

619 F.2d 932 (2d Cir. 1979) cert. denied

en Ch napades seed dcexvceveusnnes

TEXTS

Anderson, Libel and Press Self-Censorship,

ee CE oc ec cebcsveceusecscceuseses

Kaus, The Law: The Plaintiff’s Hour,

PEs ca deecacevensenvexdecesecns

Note, The Role of Summary Judgment in Political Libel

Se, Rls Mees REUECEDTED «voc vcvevocceweceses

Note, The Use of Summary Judgments in Defamation Cases,

IE © ooo cg cas voeureaceaeeseuds

Pell, ‘‘Libel as a Political Weapon,”’

eben ws

Stewart, ‘‘Or of the Press,’’ 26 Hastings L.J. 631 (1975).....

Symposium on the Press Clause,

es OE on occ wua'ys tuctecesauvewuncs

10A C. Wright & A. Miller, Federal Practice and Procedure,

eee ek, UO COG, BEEP 0 occ cv ccccccdveccnves

Page

10

12

- vii -

TABLE OF AUTHORITIES (Continued)

Page

MISCELLANEOUS

is ee Lacdty dats ar duncsee ack induces bate 2,8

United States Constitution,

AS col dian sh ky denG eee dd trop meter ueens passim

ee

IN THE

Supreme Court of the United States

October Term, 1983

YVONNE LARSEN, W. DANIEL LARSEN,

JOSEPH K. HARMON, and EDWIN J. GRAY,

Petitioners,

VS.

JULIE FISHER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL, STATE OF CALIFORNIA,

FOURTH APPELLATE DISTRICT

OPINION BELOW

The opinion of the Court of Appeal of the State of California, Fourth

Appellate District, Division One, is reported at 138 Cal.App.3d 627, 188

Cal.Rptr. 216 (1982) (Appendix A).’

JURISDICTION

The decision of the Court of Appeal of the State of California, Fourth

Appellate District, Division One, was filed on December 24, 1982, revers-

ing in part the summary judgment entered in favor of Petitioners by the

?For convenience, the appendices to this Petition are separately presented.

~-

Superior Court of California on May 13, 1981. The Court of Appeal

denied a timely petition for rehearing on January 11, 1983 (Appendix B).

On March 23, 1983, the Supreme Court of California denied a timely

petition for hearing; Justice Mosk was of the opinion that the petition

should be granted (Appendix C). This petition was filed within 90 days

of that date. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment of the United States Cagstitution provides, in

pertinent part: ‘

Congress shall make no law . . . abridging the freedom of

speech. ...

The Fourteenth Amendment of the United States Constitution pro-

vides, in pertinent part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States. ...

STATEMENT OF THE CASE

Statement of Facts

In June 1977, San Diego was stunned by the San Diego Teachers’

Association’s illegal strike. School Board member Julie Fisher played a

highly visible and controversial role in the events surrounding the strike

and in the School Board’s decision to grant amnesty to the strikers

despite their defiance of a temporary restraining order and a preliminary

injunction.

Before the strike, the San Diego School Board authorized a negotiator

to represent the School Board in negotiations with the San Diego

Teachers’ Association (Union). Fisher believed these fragile negotiations

were failing. She decided to conduct her own negotiations with the

Union without telling either the School Board or its authorized

nie

negotiator. In deposition testimony Fisher stated that she was acting as a

‘‘self-appointed emissary.”’

On June 5, 1977 Fisher went to the Union office. She disclosed to

Union leaders the tone and substance of confidential executive sessions

of the School Board called in response to the threatened teachers’ strike.

Fisher and Union leaders developed a list of demands which Fisher would

then urge School Superintendent Thomas Goodman to recommend to

the School Board.

Fisher then took the list of Union demands to Superintendent

Goodman’s office to urge him to recommend the demands to the Board.

Only two people were present at this meeting: Fisher and Goodman.

Both versions of the meeting are set forth below.

Fisher’s version of the June 5 meeting. Fisher told Superintendent

Goodman that a teachers’ strike should be avoided for the good of the

District. She told him that if the District could solve integration and

employee-relations problems, he would gain a national reputation.

Fisher told Goodman that a teachers’ strike would focus attention on

him because ‘‘there were a lot of things that he was getting away with

that nobody’s paying attention to.’’ She told him his wrongdoing includ-

ed misuse of developers’ funds. Goodman told her that if she believed

him guilty, she should report him to the District Attorney or to the

Grand Jury.

Goodman’s version of the June 5 meeting. Fisher told Goodman a

strike should be averted. She presented the Union demands and sought

his support. She told him that if he did not support her proposal and if a

strike occurred, she would publicly charge him with four counts of

wrongdoing and call for his resignation. She accused him of: (1) misap-

propriating developers’ funds; (2) falsifying attendance records; (3) im-

properly demoting an administrator; and (4) improperly recommending

dismissal of a Children’s Center supervisor. Goodman reminded Fisher

that she had made the charges before and the School Board had rejected

them. However, he advised her to inform the District Attorney or Grand

Jury if she really believed the charges. Fisher replied that she had already

gone to the Grand Jury, but they would not listen to her. Fisher said the

Grand Jury would listen when she had the backing of 2,000 teachers.

Superintendent Goodman prepared a chronology reflecting this conver-

sation.

a

gis

When Goodman refused to support Fisher’s list of Union demands,

Fisher returned to the Union office to continue her independent negotia-

tions with the Union leaders. Fisher and Union leaders worked out an

eight-point list of demands. Fisher then went to the homes of two School

Board members and Superintendent Goodman, seeking their support for

these Union demands.

When its demands were rejected, the Union called a strike. On

Monday, June 6, 1977, the Honorable Wesley Buttermore, Judge of the

Superior Court, issued a temporary restraining order declaring the strike

illegal.

On Tuesday, June 7, 1977, the teachers remained on strike in defiance

of the temporary restraining order. The School Board met. At that

meeting Fisher charged Superintendent Goodman with the four charges

of wrongdoing threatened at their June 5 meeting and called for his

resignation. She left the School Board meeting and repeated the charges

before the striking teachers who cheered: Julie! Julie! Julie!

Reverend George W. Smith, President of the School Board, promptly

rebuked Fisher, condemning her ‘‘irresponsible and outrageous’’ attack

on Superintendent Goodman. Reverend Smith held a press conference

where he disclosed Fisher’s conduct at the June 5 meeting with

Superintendent Goodman. Reverend Smith revealed that Fisher had

threatened to charge Goodman with wrongdoing and call for his resigna-

tion if Goodman did not support her proposal. According to reports in

both major local daily newspapers, Fisher denied threatening Super-

intendent Goodman but Superintendent Goodman confirmed that

Reverend Smith’s account of Fisher’s threats was accurate.

Tempers flared; criticism was caustic. School Board President Smith

declared: ‘‘It is reprehensible that Mrs. Fisher is conducting her reelec-

tion campaign at the expense of Dr. Goodman and his family and that

she feels that destruction of the integrity of the District is not tuo high a

price to pay for her personal gain.’’ Bill Foxx, General Manager of

KCST-TV, broadcast an editorial demanding Fisher’s immediate resigna-

tion.

On Wednesday, June 8, the Honorable Jack Levitt, Judge of the

Superior Court, issued a preliminary injunction declaring the strike il-

legal. He agreed with the earlier ruling of Judge Buttermore that the

y=

strike threatened irreparable harm to the District’s students. Defying the

injunction, the teachers remained on strike.

Fisher supported the teachers during the strike. She agreed with some

of the striking teachers’ demands including binding arbitration, reduced

class size, and a 5% pay raise. On the third day of the illegal strike,

Fisher went to the Union office, worked out and signed an amnesty

agreement with the strikers, and attempted to get other School Board

members to support the agreement. As Ray Kipp reported in the San

Diego Union:

The SDTA [San Diego Teachers’ Association] aided by

board member Julie Fisher, developed its own no-

reprisal, back-to-work agreement late last night, and at-

tempted to get at least two other board members to sign

it.

The teachers continued to defy the injunction and remained on strike

on Thursday, June 9. The School Board met again. When Fisher arrived

at the Board meeting she was greeted by a standing ovation from the

teachers in the audience. Fisher and two other Board members voted to

grant the strikers amnesty; the strikers agreed to return to the classroom.

Many condemned the amnesty vote and Fisher’s role in the teachers’

strike. A letter to the editor of the San Diego Tribune described the

amnesty vote as ‘‘the complete lack of backbone and the sellout of the

taxpayers and the law-abiding students, parents, teachers, and other

employees.’’ City Councilman Mac Strobl called for Fisher’s resigna-

tion. A La Jolla Light editorial by John Sasso sarcastically singled out

Fisher for ‘‘[s]pecial commendation . . . for her open support of teachers

in rebellion.”’

On July 27, 1977, Yvonne Larsen declared her candidacy for the

School Board seat held by Fisher. W. Daniel Larsen and Joseph K.

Harmon helped draft her campaign announcement criticizing Fisher’s

role in the illegal teachers’ strike as follows: ‘‘Do taxpayers like it when

Julie Fisher appears at union rallies and supports their demands?’’

On October 24, 1977, Yvonne Larsen gave a campaign speech criticiz-

ing Fisher for threatening Superintendent Goodman. W. Daniel Larsen

and Edwin J. Gray helped draft this speech which contained the follow-

ing statements:

=

We watched [Fisher] as she leveled a series of scurrilous

charges against the superintendent of schools. This sorry

chapter in the history of our schools was nothing less than

blackmail.

She told the superintendent that if he agreed to col-

laborate with the teachers union, she would see to it that

he would gain such a good reputation that he could name

his job anywhere in the country.

But, if he refused, she would get him. She would accuse

him of many things and publicly call for his resignation.

The superintendent refused to go along with what was

almost a form of bribery.

Frankly, I hold no brief either for or against the

superintendent. He was fully able to defend himself

against the false and vicious charges he was threatened

with.

But outright blackmail is not a quality I take too lightly.

The strike -- by any standard -- was illegal. In my

opinion, it was also immoral. And my opponent was

associated with it every step of the way.

Her vote [or amnesty] coming as it did from one who

earlier sought to blackmail the school superintendent,

should not have been surprising.”’

On November 4, 1977, Yvonne Larsen held a news conference where

she released a statement which W. Daniel Larsen and Edwin J. Gray

helped draft. The statement criticized Fisher for her role in the teachers’

strike as follows: ‘‘Furthermore, Julie Fisher’s collaboration last Spring

with the striking teachers -- who defied the law and a judge’s order --

was, in my opinion, a direct violation of her oath of office to uphold the

law.”’

On July 27, 1978, Fisher filed a complaint for libeland slander alleging

she had been defamed by the Larsen campaign statements.

Bm, ie

How the Federal Question Was Raised

Petitioners’ First Amendment privilege under New York Times Co. v.

Sullivan, 376 U.S. 254 (1964) was raised at every stage of the pro-

ceedings. Appendix D consists of a summary of the following portions in

the record where this federal question was raised below:

1. The complaint alleged that the statements complained of were

made with actual malice;

2. Petitioners demurred to the complaint on First Amendment

grounds;

3. Petitioners asserted as an affirmative defense that the action was

barred by the First Amendment;

4. Petitioners moved for and obtained summary judgment on the

ground that no question of fact exists on the issue of actual

malice;

5. The Court of Appeal partially reversed the summary judgment

on the ground that a question of fact exists on the issue of actual

malice; and

6: Petitioners sought review by the California Supreme Court on

the ground that the Court of Appeal decision on the issue of ac-

tual malice violated their First Amendment rights.

Thus, the controlling issue from the inception of this litigation has

been the constitutional protection to be afforded to Petitioners’ political

speech.

Finality of the State Court Decision

The Court of Appeal reversed summary judgment in this public of-

ficial defamation action on the ground that sufficient evidence of actual

malice exists for the issue to go to the trier of fact. The California

Supreme Court declined to exercise jurisdiction. Petitioners submit that

the evidence is constitutionally insufficient to establish actual malice and

that the burden of proceeding with litigation violates their constitutional

rights. Petitioners are now faced with the expense and delay of a trial

and months -- if not years -- of repetitious appellate review of the very

issues presented by this petition. Under these circumstances, this Court’s

jurisdictional requirement of finality is satisfied. Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 476-487 (1975).

In Cox Broadcasting this Court defined categories of cases where a

state court decision on a federal issue will be treated as a final judgment

for the purposes of 28 U.S.C. § 1257 without awaiting the completion of

the additional proceedings anticipated in the lower state courts. /d. at

477, 476-487. This case falls within the category of cases where a

substantial federal issue has been finally and incorrectly decided by the

state court and reversal of the state court decision would preclude further

litigation on the causes of action. Although Petitioners may prevail at

trial, if Petitioners are correct in asserting that the First Amendment

requires summary judgment, there should be no trial at all. Moreover, if

the Petitioners prevail at trial, the unreviewed decision of the Court of

Appeal would survive to chill the exercise of free speech in political cam-

paigns, thus eroding a fundamental constitutional right. /d., at 482-486.

Petitioners therefore submit that the decision of the Court of Appeal is

final for purposes of the jurisdiction of this Court under 28 U.S.C.

§ 1257(3).

REASONS FOR GRANTING THE WRIT

I

THE DECISION BELOW PRESENTS SIGNIFICANT AND

RECURRING CONSTITUTIONAL ISSUES CONCERNING THE

APPLICATION OF NEW YORK TIMES CO. V. SULLIVAN

The decision below raises three recurring issues concerning the proper

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

threshold issue is whether the New York Times actual malice standard

applies to non-media defendants. The second issue concerns the pro-

cedure to be followed where the New York Times standard applies.

Specifically, the issue is whether New York Times modifies the usual

summary judgment rules and prescribes a policy of liberally granting

summary judgments to prevent the chilling effect of protracted litigation.

The third issue is whether actual malice can be established by showing a

candidate for public office failed to contact the incumbent public official

~

before making statements critical of the incumbent’s conduct in office

based on information received from reliable sources.

A. Does the New York Times actuai malice standard appiy to

non-media defendants?

Petitioners are individual defendants in a defamation action brought

by a defeated school board member for statements about her conduct in

office made by her challenger in a school board election campaign.

Throughout this litigation, Petitioners have relied on New York Times v.

Sullivan to protect their First Amendment right to criticize a public of-

ficial’s conduct in office (Appendix D). The lower court extended the

New York Times privilege to the Petitioners. However, this Court has

never expressly applied the New York Times standard to non-media

defendants. Certiorari should be granted so that this Court may consider

and determine whether the New York Times privilege applies to non-

media defendants.

This Court has frequently performed the delicate task of balancing the

constitutional right to freedom of the press against the states’ right to af-

ford compensation for injury to reputation. In New York Times, after

balancing these competing rights, this Court held that the First Amend-

ment restricted the states’ right to afford a remedy for harm to reputa-

tion by conferring a qualified immunity on the news media when it is

sued by a public official. This Court prohibited the states from allowing

a public official to recover for defamation from the news media unless

the official proves actual malice.

While this Court has thus balanced state protection of individual

reputation against constitutional protection of media speech, this Court

has yet to weight state protection of individual reputation against con-

stitutional protection of individual speech. In fact, in Hutchinson v.

Proxmire, 443 U.S. 111, 133 n. 16 (1979), this Court expressly reserved

the question of whether the New York Times actual malice standard ap-

plies to non-media defendants.

Confronted with this open question, state and federal courts have been

left to reach their own conclusion about the application of New York

Times to non-media defendants. Courts facing this recurring issue have

frequently held that the New York Times standard applies to non-media

defendants. The courts reason that the purpose of the press is to

-10-

facilitate discussion by individuals. To protect the press but not the

discussion would be to place greater value on the means than on the end.

Distinguishing between individual and media defendants would create a

‘dangerous disequilibrium between the first amendment’s guarantees of

freedom of speech and the press.’’ A/lvins v. White, 627 F.2d 637, 649

(3d Cir. 1980).’

On the other hand, constitutional scholars have argued that a dise-

quilibrium between the first amendment’s guarantees of freedom of

speech and the press is exactly what the Founding Fathers had in mind.

As Justice Potter Stewart explained, the Free Press Clause must be

distinguished from the Free Speech Clause:

This basic understanding is essential, I think, to avoid an

elementary error of constitutional law. It is tempting to

suggest that freedom of the press means only that news-

paper publishers are guaranteed freedom of expression.

They are guaranteed that freedom, to be sure, but so are

we all, because of the Free Speech Clause. If the Free

Press guarantee meart no more than freedom of expres-

sion, it would be a cunstitutional redundancy. . . By in-

cluding both guarantees in the First Amendment, the

Founders quite clearly recognized the distinction between

the two.

Stewart, ‘‘Or of the Press,’’ 26 Hastings L.J. 631 (1975).

The question of the application of the New York Times actual malice

standard to individuals is significant for two reasons. First, an in-

dividual’s right to criticize a public official’s conduct in office is

guaranteed by the First Amendment. Extending the New York Times

standard would protect this fundamental right. Second, delimiting the

states’ power to award damages for libel actions requires the accom-

modation of state and federal interests under the Constitution. Cer-

tiorari should be granted to resolve these issues.

*Other cases considering this issue include: Rowden v. Amick, 446 S.W.2d 849 (Mo.

1969); Jacron Sales Co., Inc. v. Sindorf, 350 A.2d 688, 694-695 (Md. 1976); Rowe v.

Metz, 564 P.2d 425 (Colo. 1977); Bussie v. Larson, 501 F.Supp. 1107, 1111-1113 (M.D.

La. 1980); Woy v. Turner, 533 F.Supp. 102, 103-104 (N.D. Ga. 1981); and Rodriquez v.

Nishiki, 653 P.2d 1145, 1149 (Haw. 1982).

“See generally, Symposium on the Press Clause, 7 Hofstra L.Rev. 559 (1979) considering

whether the press is entitled to special constitutional privileges.

«ft.

B. Does the New York Times actual malice standard modify

traditional summary judgment rules and prescribe a

policy of liberally granting summary judgments?

Petitioners obtained summary judgment on the ground that the

evidence of actual malice was insufficient to present a triable issue of

fact. The Court of Appeal partially reversed the summary judgment

holding that the evidence of actual malice presented a triable issue of

fact. Petitioners submit that the New York Times actual malice standard

compels entry of summary judgment because the evidence is insufficient

to establish actual malice with convincing clarity. Certiorari should be

granted to determine the propriety of and the standard for summary

judgment under New York Times.

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

held that the Constitution delimits a State’s power to award damages for

libel actions brought by public officials against critics of their official

conduct. To recover, the public official must establish actual malice with

clear and convincing evidence. /d., 283-286.

Critics observed that the New York Times privilege operated too late in

the litigation process to prevent scif-censorship since the fear of defend-

ing a defamation action would be as chilling to the exercise of free speech

as the fear of a judgment in the action. Anderson, Libel and Press Self-

Censorship, 53 Tex.L.Rev. 422 (1975); Washington Post Co. v. Keogh,

365 F.2d 965, 968 (D.C. Cir. 1966) cert. denied 385 U.S. 1011 (1967). In

practical terms, in 1975, the cost of a libel defense ranged from $10,000

to $19,000 (Anderson, supra at 434); currently, the fee for New York

lawyers for the initial stages of a libel defense ranges from $20,000 to

$35,000 (Kausy The Law: The Plaintiff’s Hour, Harper’s 14 (March,

1983)). And the costs continue to climb.

To cure this serious deficiency in the New York Times privilege, state

and federal courts adopted a policy of liberally granting summary judg-

ment to insure early disposition of defamation actions having First

Amendment implications. Nader v. de Toledano, 408 A.2d 31, 43 n. 7

(D.C. 1979), cert. denied, 444 U.S. 1078 (1980) and cases cited therein.

By 1979, many courts regarded the granting of summary judgment in

libel actions as the rule rather than the exception. Loeb v. New Times

Communications Corp., 497 F.Supp. 85, 94 n. 14 (S.D.N.Y. 1980) and

cases cited therein.

x ©

In 1979, this Court questioned but did not address the propriety of

resolving the actual malice issue on summary judgment considering the

complexity of the issue. Hutchinson v. Proxmire, 443 U.S. 111, 120, n. 9

(1979), Wolston v. Reader’s Digest Association, 443 U.S. 157, 161 n. 3

(1979).

This Court’s cautionary footnotes left the lower courts in a quandry.

The Second Circuit announced that ‘‘until more directly advised’’ courts

may no longer consider the chilling effect a libel suit may have on first

amendment rights. Yiamouyiannis v. Consumers Union of United

States, Inc., 619 F.2d 932, 940 (2d Cir. 1979) cert. denied 449 U.S. 839

(1980). The Sixth Circuit has followed this lead. Schultz v. Newsweek,

Inc. , 668 F.2d 911, 917 (6th Cir. 1982). Other courts however have con-

tinued to follow the rule of liberally granting summary judgment on the

actual malice issue. Edgartown Police Patrolmen’s Association v.

Johnson, 522 F.Supp. 1149 (D.C. Mass. 1981). See JOA C. Wright & A.

Miller, Federal Practice and Procedure, § 2730, pp. 240-248 (2d ed.

1983).

Beyond the question of the propriety of favoring summary judgment

on the issue of actual malice, a question remains as to the standard the

courts should use on summry judgment since actual malice must be

established with clear and convincing evidence. New York Times Co. v.

Sullivan, 376 U.S. 254 at 285-286 (1964); Yiamouyiannis v. Consumers

Union of the United States, Inc., 619 F.2d at 940; Nader v. de Toledano,

408 A.2d at 44-50. While summary judgment has frequently been

granted on this issue, the trial courts have used different standards in

reaching this result. These differing standards stem from differing inter-

pretations of the New York Times admonition to the courts to in-

dependently examine the evidence to insure that First Amendment rights

are protected. New York Times Co. at 285; Nader at 45; Velie

Transcendental Research Association y. Sanders, 518 F.Supp. 512,

518-519 (C.D. Ca. 1981).

The differing standards for granting summary judgment fall within

two main categories. First, some courts depart from the usual summary

judgment rules. These courts require the trial judge to view the evidence

in its most reasonable light and to grant summary judgment if the trial

judge fails to find actual malice with convincing clarity. Wasserman v.

Time, Inc. , 424 F.2d 920, 922-923 (D.C. Cir. 1969) cert. denied 398 U.S.

940 (1970). Second, some courts follow the usual summary judgment

rules. These courts require the trial judge to view the evidence in the light

- 39 -

most favorable to the plaintiff and to deny summary judgment if a

reasonable jury could find actual malice with convincing clarity. Guam

Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d 920, 922-923 (9th

Cir. 1973) cert. denied 419 U.S. 872 (1974); Loeb v. New Times Com-

munications Corp., 497 F.Supp. 85, 94 (S.D.N.Y. 1980). See generally

Note, The Role of Summary Judgment in Political Libel Cases, 52 S.Cal.

L.Rev. 1783 (1979) and Note, The Use of Summary Judgments in

Defamation Cases, 14 U.S.F.L. Rev. 77 (1979).

Thus, significant and recurring issues have arisen concerning the use of

summary judgments in cases applying the New York Times actual malice

standard. These issues involve the propriety of and the standard for

granting summary judgment on the issue of actual malice. Certiorari

should be granted to determine: (1) whether the First Amendment com-

pels liberal use of the summary judgment procedure to prevent the chill-

ing effect of protracted litigation; and (2) whether New York Times com-

pels a departure from the traditional summary judgment standard of

evaluating evidence of actual malice.

C. Can a candidate for public office be found to have acted

with actual malice for failing to contact her incumbent

opponent before making campaign statements criticizing

the incumbent’s conduct in office?

Petitioners were sued for campaign statements criticizing Fisher for

threatening Superintendent Goodman and supporting the striking

teachers. Petitioners obtained summary judgment on the ground that

these statements were not made with actual malice since Petitioners relied

on widespread media reports confirmed by reliable sources. The Court _

of Appeal reversed holding that a jury could find actual malice because

Fisher denied these reports and Petitioners failed to ask her about her

denials. Certiorari should be granted to determine whether Petitioners’

failure to investigate their opponent’s denial of reliable information is

sufficient to support a finding of actual malice with the convincing

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

The New York Times actual malice standard imposes a duty on ap-

pellate courts to independently examine the record to. make certain that

governing constitutional principles have been properly applied and that

the plaintiff has met the burden of proving actual malice with convincing

clarity. Jd. at 286 and n. 26. Actual malice in public figure defamation

-14-

actions means knowledge of falsity or reckless disregard for truth or

falsity. As explained by this Court in St. Amant v. Thompson, 390 U.S.

727, 730 (1968):

[R]eckless conduct is not measured by whether a

reasonably prudent man would have published, or would

have investigated before publishing. There must be suffi-

cient evidence to permit the conclusion that the defendant

in fact entertained serious doubts as to the truth of his

publication.

Investigatory failures alone have repeatedly been held insufficient to

establish actual malice with clear and convincing evidence as required by

New York Times. New York Times at 288; St. Amant at 732-7.* In-

deed, the complete failure to investigate is not sufficient to show actual

malice. Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967).

Rather, to support a finding of recklessness, the record must contain

clear and convincing evidence that the defendant subjectively entertained

serious doubts about the truth of the information as where the defendant

relied on an anonymous telephone tip or had other obvious reasons to

doubt the veracity of the informant or the accuracy of the report. Sv.

Amant, at 731.

The instant case presents the question of whether a public official’s

denial of accusations is sufficient to establish by clear and convincing

evidence that Petitioners entertained serious doubts about the truth of in-

formation reported by reliable sources. The court below held that a jury

could find that Petitioners acted recklessly because they failed to check

with Fisher, the incumbent opponent, before making campaign

statements based on widespread media reports which had been confirm-

ed by trustworthy sources with first-hand knowledge of the events.

Before making the campaign statements at issue, Petitioners read the

widespread media reports of Fisher’s threats against Goodman and of

her support for striking teachers. Petitioners independently verified

these reports. They obtained Goodman’s personal chronology documen-

ting his account of Fisher’s threats. Further, Yvonne Larsen con‘acted

two other candidates for school board who had observed Fisher’s con-

duct during the teachers’ strike. Thus, Petitioners campaign statements

were based on articles in reputable newspapers which Petitioners had in-

dependently verified by contacting reliable sources with first-hand

knowledge of the events.

~ =

Despite this uncomtrsazicted evidence, the court below held that the

evidence supported a finding of actual malice. The court pointed to

three items of evidence to support this conclusion: (1) the Petitioners’

motive; (2) the Petitioners’ reliance on Goodman’s chronology; and (3)

the Petitioners’ failure to contact Fisher to learn her side of the story.

These will be considered in order.

First, the court indicated that the Petitioners’ motive supported a

finding of actual malice. The court observed that Edwin J. Gray, the

campaign manager, employed political rhetoric and hyperbole in an

effort to make Larsen’s campaign more ‘‘vigorous’’ and that W. Daniel

Larsen wanted a ‘‘hard hiting’’ campaign. But, as this Court explained

in New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), public

official defamation actions must be considered ‘‘against the background

of a profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and wide-open, and that it

may well include vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.’’ To base a finding of actual

malice on the desire to engage in a vigorous political campaign destroys

the protection that gives meaning to New York Times.

Second, the court held Petitioners’ reliance on Goodman’s chronology

was reckless. The court suggested that Petitioners should have contacted

Goodman to reconfirm his account. But they had already read two

newspaper articles in which Goodman confirmed the threats and Good-

man’s personal written record of the threats. Petitioners had no reason

to expect Goodman to disavow his account, and in fact he never has.

Goodman testified in support of Petitioners’ motion for summary judg-

ment that his chronology was accurate. The court’s suggestion that Peti-

tioners should have confirmed this account for the fourth time imposes

an excessively prudent and futile investigation requirement.

The court also held that Petitioners’ reliance on Goodman was reckless

because he was biased. But there was no unbiased source to turn to --

only Goodman and Fisher were at the meeting and their stories were ir-

reconcilable. Petitioners submit that in actions involving the First

Amendment, a defendant is entitled to rely on a single source, even if it

represents only one side of the story, without fear of defamation pro-

secution by a public official. Vanderburg v. Newsweek, Inc., 507 F.2d

1024, 1026-1028 (Sth Cir. 1975); New York Times v. Connor, 365 F.2d

567, 576 (Sth Cir. 1966).

Se

The third and critical item of evidence relied on by the court to support

a finding of actual malice is that Fisher denied the reports and that Peti-

tioners failed to check with her before making campaign statements

criticizing her performance in office. The court thus allows the plaintiff

public official to establish actual malice simply by showing that she

denied the accusations of wrongdoing.

This conclusion is a constitutional outrage! Few public officials can-

didly admit their own wrongdoing, most vehemently deny it. Yet, critics

must be free to speak out if our democratic system is to survive. Fear of

being subjected to protracted and expensive litigation chills the exercise

of free speech. Recent reports indicate an increase in the use of libel ac-

tions to intimidate those who criticize public figures. Pell, ‘‘Libe/ as a

Political Weapon,’’ The Nation, June 6, 1981. The New York Times

standard was designed to prevent the chilling effect of such actions. But

permitting a finding of actual malice on a showing only that the public

official denied wrongdoing destroys the protection promised by New

York Times.

Certiorari should be granted so that this Court can determine whether

the court below properly concluded that the New York Times actual

malice standard can be satisfied by evidence that the plaintiff public

official denied reliable reports criticizing her conduct in office. See

Martin Marietta Corp. v. Evening Star, 417 F.Supp. 947, 960 (D.C.D.C.

1976).

THE DECISION BELOW PRESENTS CONSTITUTIONAL ISSUES

CONCERNING THE APPLICATION OF NEW YORK TIMES

WHICH ARE SIMILAR TO ISSUES ALREADY PENDING

BEFORE THIS COURT

On April 25, 1983, this Court granted certiorari in Bose Corp. v. Con-

sumers Union of the United States, Inc., 692 F.2d 189 (ist Cir. 1982),

petition for cert. granted §1 U.S.L.W. 3774 (1983) (No. 82-1246). In

Bose, the First Circuit reversed judgment for the plaintiff manufacturer

of loudspeakers in a product disparagement action brought against the

publisher of a monthly magazine on the ground that the plaintiff failed

to establish actual malice with the clear and convincing evidence required

by the New York Times standard.

off.

As in Bose, the instant case presents the issue of the standard for

appellate review of evidence of actual malice under New York Times. But

this case is factually distinguishable. This case concerns criticisms of a

public official’s conduct in office by individual defendants during a

political campaign rather than criticisms of product performance by a

media defendant in a monthly magazine. By considering Bose and the

instant case together, this Court will be able to explore the constitutional

policies and implications raised on the same substantive issue under dif-

ferent facts. Certiorari should be granted because of the significant

similarities and the significant differences between the Bose case and the

case at bar.

CONCLUSION

For these reasons, a writ of certiorari should issue to review the

opinion of the California Court of Appeal, Fourth Appellate District.

Respectfully submitted,

Oscar F. Irwin,

Counsel of Record

Margaret Z. Johns

HILLYER & IRWIN

530 *‘B’’ Street, 14th Floor

San Diego, California 92101

Counsel for Petitioners.