Jurisdictional Statement — National Enquirer, Inc. v. Burnett

8 3 - I 0) 7 6 Office Supreme Court, U.S,

FILED

Ne. DEC BO 1993

il ALEXANDER L. STEVAS,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

NATIONAL ENQUIRER, INC.,

Appellant,

Vv.

CAROL BURNETT,

Appellee.

On Appeal from the Califorinia Court of Appeal,

Second Appellate District

STATEMENT AS TO JURISDICTION

JOHN G. KESTER *

HAROLD UNGAR

Hill Building

Washington, D.C. 20006

(202) 331-3069

Attorneys for Appellant

Of Counsel:

WILLIAMS & CONNOLLY

Hill Building

Washington, D.C. 20006

* Counsel of Record

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

QUESTIONS PRESENTED

1. Do the First and Fourteenth Amendments permit

a state, arbitrarily and based solely on content, to im-

pose on one publisher of a weekly tabloid a harsher stan-

dard for libel liability and damages than that applied

to other weekly and monthly publications?

2. Do the First, Fifth, Eighth and Fourteenth Amend-

ments permit a public figure to obtain punitive damages

in a civil proceeding for libel based simply on showing of

“conscious disregard for the rights of others” by a pre-

ponderance of the evidence, when:

—There was no proof, and no claim, that the pub-

lisher acted out of hatred or ill will;

—There was admittedly no measurable damage to

reputation ;

—tThe article complained of was promptly retracted;

and

—Punishment was held justified because of the

court’s stated distaste for the defendant’s “style

of journalism”?

(i)

ii

Pursuant to Rule 28.1, Appellant states that it is a Florida

corporation wholly owned by GP Group, Inc., a Delaware corpo-

ration that also owns Distribution Services, Inc., a Delaware cor-

poration, and Weekly World News, Inc., a Florida corporation.

Appellant has no other affiliates or subsidiaries except wholly owned

subsidiaries.

TABLE OF CONTENTS

dy py 8) Bg 2 1, 5 | | Senne On OEE SS

TTR CE UTNE EN cencccnsiccteccscssasensrcoqronnnsnstonnes

END | WINN UT cirresescsincasencrspenionentinnnintonctiinnsensticuanapiiain

FIFI ccrrscttnnscensivsenieeneqsinakumeatiiohaneaaiminineanes

CONSTITUTIONAL PROVISIONS AND STATUTES

SINT ‘wcicis ndnibasenicnticodeseuniniuilinn tet vsbentuimaasbaniplintciores

RAISING THE FEDERAL QUESTION ....................

PR III ctinecahSactioretcendtncientcthcdidiiamasimtaianectiniduinimenclichiiaile

THE QUESTIONS ARE SUBSTANTIAL... B

I. BY CAPRICIOUSLY PROTECTING SOME

II.

WEEKLY PERIODICALS BUT NOT OTHERS,

THE DECISION CONFLICTS WITH DECI-

SIONS OF TWO STATE SUPREME COURTS,

OF TWO FEDERAL COURTS OF APPEALS,

TED GE RAED MUO Retetvincinsenatinesentetnnh covers

A. The Statute Is Applied Arbitrarily and With-

GE TID sninintccocnancedntbnsciitacnetncdeenias

B. The Statute Unconstitutionally Distinguishes

Among Publications Based Upon Their Con-

SII saccicascceniesseinseelhcinisitishesitliantiibdingtadedatiiensadad shakata te iad

C. The Statute as Applied To Exclude This

Weekly Tabloid Is Void for Vagueness ..........

BY HOLDING THAT THE FIRST AMEND-

MENT PERMITS PUNITIVE DAMAGES FOR

A PUBLIC FIGURE IN A LIBEL CASE—

WHEN HATRED, ILL WILL AND DAMAGE

TO REPUTATION ALL WERE ABSENT—

THE DECISION CONFLICTS WITH HOLD-

INGS OF THREE STATE COURTS AND

WITH THE CLEAR IMPLICATION OF DE-

CISIONS OF THIS COURT ...........................-..

(iii)

Page

10

11

1l

14

19

iv

TABLE OF CONTENTS—Continued

Page

A. The State Courts Are in Conflict .................... 21

B. On the Broad Instructions Here, Punitive

Damages Unconstitutionally Punish for Legal

Expression by Unpopular Publishers ............ 23

C. The Issue Is One Which Has Not Been, But

Should Be, Decided by This Court .................. 27

III sciincsteiciitlrsiciicinhcg-ipcecteamhanhicndhcaailaatteastaiaiaa ae ratte ta 30

APPENDICES

A. Opinion and Judgment of the California Court

of Appeal, Second Appellate District, with Modi-

fication and Orders Denying Rehearing .............. la

B. Order of the Supreme Court of California Deny-

I i 43a

C. Opinion of the Superior Court for the County of

Los Angeles, March 18, 1981..........000000 44a

D. Opinion of the Superior Court for the County

of Los Angeles, May 13, 1981 .......00... 52a

ERE US eae Es OR 65a

F. Constitutional and Statutory Provisions .............. 67a

G. Opinion of the California Court of Appeal,

Second Appellate District, in Faan v. National p

Enquirer, Inc., 78 Cal. App. 3d 543 (1978) ......... 73a

Vv

TABLE OF AUTHORITIES

Cases: Page

AAFCO Heating & Air Conditioning Co. v. North-

west Publications, Inc., 162 Ind. App. 671, 321

N.E.2d 580 (1974), cert. denied, 424 U.S. 913

} | ee staneicistngsiiselcpsalcetaphdinilicinskeiuaaaaiiameande 22

Ad World, Ine. V. Tow nship of Doylestown, 672

F.2d 1136 (3d Cir.), cert. denied, 456 U.S. 975

| SSA Ae ces ae Mm Re Rs HN Skala 16

Ashton Vv. Kentucky, 384 U.S. 195 (1966)............ ; 20

Baggett Vv. Bullitt, 377 U.S. 360 (1964) 0... 20

Bailey v. Loggins, 22 Cal. 3d 907, 654 P.2d 758

TINUED nnctisistersichsaacgiencstantaanadiataiaiiedgcustenmuaniatecat as sae 13

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

| in Se ee ee Pram Ne # 30

Bell v. Wolfish, 441 US. 520 (1979) SNOT pene . 24

Bouie v. City of Columbia, 378 U.S. 347 (1964)... 14, 20

Brewer v. Second Baptist Church, 32 Cal. 2d 791,

197 P.2d 718 (1948)... seinen 24

Briscoe v. Reader’s Digest Ass'n, 4 Cal. 3d 529,

7 & - § oS aca ae 11

Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976),

cert. denied, 429 U.S. 1062 (1977) ........ eae 2 28

Cantrell v. Forest City Pub. Co., 419 U.S. 245

RE Cree ee Meet NS RS aT Ss TT 26

Cantwell v. Connecticut, 310 U.S. 296 (1940)... 20

City of Newport v. Fact Concerts, Inc., 453 U.S.

es ) FR aee en re Ke cem oy TT 23, 26

Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967).... 26, 28

Dahnke-Walker Milling Co. Vv. Bondurant, 257

5 Ss} Eee Ee eer ce 3

Eastwood v. Superior Court, — Cal. App. 3d

(Ct. App., 2d Dist., No. 67746, Dec. 1,

EIT ddiiid\intrihictentcesaenvabnisniniibemmiieaamene 13

Eberle v. Municipal Court, 55 Cal. App. 3d 423,

£ S&S FF eee a ee 29

Erznoznik v. City of Jacksonville, 422 U.S. 205

EE eee eC hy ET. vere 15

Faan v. National Enquirer, Inc., 78 Cal. App. 3d

543, 144 Cal. Rptr. 496 (1978) 0000. 9, 13, 73a

Fay Vv. Parker, 58 N.H. 342 (1872) ......................... 28

vi

TABLE OF AUTHORITIES—Continued

Page

First National Bank v. Bellotti, 485 U.S. 765

(PES LR, SRR ies tw pee oe ON 18

Friedman’s Express, Inc. v. Mirror Transp. Co.,

71 F. Supp. 991 (D.N.J. 1947), aff'd, 169 F.2d

Is I i 17

Garrison Vv. Louisiana, 379 U.S. 64 (1964).............. 29

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).. 18, 21,

23, 24, 26, 28, 29

Gomes V. Fried, 136 Cal. App. 3d 924, 186 Cal.

ER ea eee: 12

Grayned Vv. City of Rockford, 408 U.S. 104 (1972)... 24

Green Vv. Alton Telegraph Printing Co., 107 Ill.

App. 3d 755, 488 N.E.2d 203 (1982) —........ 25

Greenfield Town Crier, Inc. Vv. Commissioner, 385

Mass. 692, 433 N.E.2d 898 (1982) .......000000.. 15, 16

Grosjean V. American Press Co., 297 U.S. 233

Ihe es ERB IRS RPA RSE ae Ss Setien oe Hae iat oO 18

Hadwen, Inc. v. Department of Taxes, 139 Vt. 37,

422 A.2d 255 (1980), appeal dismissed, 451

Ei OB | RE SMa e see Te 10, 15, 16

Hall v. May Dept. Stores, 292:Ore. 131, 687 P.2d

SUC MITEL I sacissispncesemcicciinesicedacuansnabensuecionbaialanansghasianie 22

Harper & Row, Publishers, Inc. v. Nation Enter-

prises, Nos. 83-7277, 83-7327, U.S. Court of Ap-

EE ee Ge US: Bp BUND ccaccicmecescubdrchiovinstotese 17

Harris Vv. Curtis Pub. Co., 49 Cal. App. 2d 340, 121

Neen eee sareeiibeubinchotidiaiees 11

Herndon v. Lowry, 301 U.S. 242 (1937) ................. 25

IBEW v. Foust, 442 U.S. 42 (1979).........0000000000.... 25

Japan Line, Ltd. v. County of Los Angeles, 441

Aste ES IIIS 00s sc sicacwatabiaashimabionmtiabeniaiemmtashaaeae 3

Johnson V. Harcourt, Brace, Jovanovich, Inc., 43

Cal. App. 3d 880, 118 Cal. Rptr. 370 (1974) ...... 12

Kapellas v. Kofman, 1 Cal. 3d 20, 459 P.2d 912

Tee Ae Re SPR ER My Am 12

Keeton Vv. Hustler Magazine, Inc., No. 82-485 ........ 23

Kennedy v. Mendoza-Martinez, 372 U.S. 144

RUTTEN lis ccitsehissenbeitiiaemasceianioasnmeesdailcaamlr iti et iat 30

Keyishian v. Board of Regents, 385 U.S. 589

(1967) 14

vii

TABLE OF AUTHORITIES—Continued

Page

Kunz v. New York, 340 U.S. 290 (1951) ................ 18

Laguna Pub. Co. v. Golden Rain Foundation, 131

Cal. App. 3d 816, 182 Cal. Rptr. 813 (1982),

appeal dismissed, 108 S. Ct. 1170 (1983) ............ 13

Lanzetta v. New Jersey, 306 U.S. 451 (1939)-....... 20

Long Vv. City of Anaheim, 255 Cal. App. 2d 191,

Re OG. | Pen ore 13

Maidman v. Jewish Publications, Inc., 54 Cal. 2d

6 Sok 2: | ee eee 12

Mathews Vv. Eldridge, 424 U.S. 319 (1976) _........... 30

McHale v. Lake Charles American Press, 390 So.

2d 556 (La. App. 1980), cert. denied, 452 U.S.

a ei 22

Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241

(TRL cM os Pca, © Ree ance Rec 18, 19, 20

Minneapolis, St. P. & S. Ste. M. Ry. v. Moquin,

gg mE pCR DAR ES Sheen De aoe 29

Minneapolis Star & Tribune Co. Vv. Minnesota

Commissioner, 103 S.Ct. 1865 (1983) —............... 19

Montandon vy. Triangle Publications, Inc., 45 Cal.

App. 3d 398, 120 Cal. Rptr. 186, cert. denied,

Pk CE RE Bg, | SRR pe res Bina eemeenc eet ee 12

NAACP Vv. Button, 371 U.S. 415 (1968)... 20, 24

New Jersey State Lottery Comm’n v. United

States, 491 F.2d 219 (3d Cir. 1974), vacated,

I a ee CE ieee cebciinsindeciacipedaials 16

New York Times Co. vy. Sullivan, 376 U.S. 254

| RRS a ERE AAS SUS Re I A a ES 6, 8, 10, 22, 27

Pittsburgh Press Co. v. Pittsburgh Comm’n, 413

RIN? GED INGE cis iancichin coupebedcinsdeeneonsbdaentiiatbapecdambeaeads 18

Police Dept. Vv. Mosley, 408 U.S. 92 (1972) -........ 14, 15, 18

Pridonoff v. Balokovich, 36 Cal.2d 788, 228 P.2d

i PREETI iccich ca > scissenididbenielcinieeaabeddicdsbimetaasadatiadmniiccnciaa 12

Pruneyard Shopping Center v. Robins, 447 U.S.

, A. FEET eee ee see e er SR 18

Rosenbloom v. Metromedia, Inct} 403 U.S. 29

CIITA D Ucinetasiinesintcpdesnilinars otamcpiidlentingnihcineninmetiiddintaniiainabiipe 28

Rosener v. Sears, Roebuck & Co., 110 Cal. App. 3d

740, 168 Cal. Rptr. 237 (1980), appeal dis-

missed, 450 U.S. 1051 (1981) 27

viii

TABLE OF AUTHORITIES—Continued

- Page

Saia v. New York, 334 U.S. 558 (1948) —............... 14

Sears, Roebuck & Co. v. State Tax Comm’n, 370

Mass. 127, 345 N.E. 2d 893 (1976) ..................... 16

Smith v. Cahoon, 283 U.S. 558 (1931) -................... 14

Smith v. California, 361 U.S. 147 (1959) —......... 20, 26, 29

Smith v. Wade, 103 S.Ct. 1625 (1983) ................ 26, 27, 28

Soderberg Vv. Halver, 276 Minn. 315, 150 N.W. 2d

alt RE ee ane Gai ane na <> aL Ce 10

Solem v. Helm, 103 S.Ct. 3001 (1983) ..................... 24

Speiser Vv. Randall, 357 U.S. 513 (1958) ................ 24

Sprouse v. Clay Communication, Inc., 211 S.E.2d

674 (W. Va.), cert. denied, 423 U.S. 882 (1975).. 22

Stone v. Essex County Newspapers, Inc., 267

Mass. 849, 330 N.E.2d 161 (1975) ....................... 22

Taskett v. KING Broadcasting Co., 86 Wash. 2d

8 St By Reece eee 22

Toepleman v. United States, 263 F.2d 697 (4th

Cir.), cert. denied, 359 U.S. 989 (1959) -............. 30

United States v. Associated Press, 52 F. Supp.

362 (S.D.N.Y. 1943), aff'd, 326 U.S. 1 (1945)... 17

United States v. Ward, 448 U.S. 242 (1980) _........... 30

Walker v. Colorado Springs Sun, Inc., 188 Colo.

86, 538 P.2d 450, cert. denied, 423 U.S. 1025

SITE * vechitnsiedtinsipiassicsadeountibuabeideics-diihaee tisebadpvcaidtenndemetinidaeiees 22

Werner Vv. Southern California Associated News-

papers, 35 Cal. 2d 121, 216 P.2d 825 (1950),

appeal dismissed on appellant’s motion, 340 U.S.

SE IED sccisksncisictaccdiastediniliadie:jiiantentiecpeieiaccctasdiies 20

In re Winship, 397 U.S. 358 (1970) .......000000-.2.. 30

Winters v. New York, 333 U.S. 507 (1948) ............ 18, 20

Yick Wo v. Hopkins, 118 U.S. 356 (1886) 20. 13

Statutes:

i ns MRI GI iain acciesinoeiscsamieinatioinsieu 1, passim

i ee CO I 4

aie, Mee MII FE IIS ae cieccansinisssmsivnlisanpeentinanniacansl 1, 2, 3,9

es ny cll 29

I I ais coeds sutlisinseiebeinads maria 10

IND. CODE § 34-4-15-1 ......................... 10

ix

TABLE OF AUTHORITIES—Continued

Page

a cacamevennadacneseqee 10

Ey eee 10

os cecesesesscccccsooce 10

es ncnscenenveutebanses 10

Ss sccnsennnscesocsnsces 10

N. DAK. CENT. CODE § 14-02-08 ........................ Mae €7 10

S. Dax. Cop. Laws § 20-11-7 .................................... 10

Ten en ee sccoreumensceee 10

EE 2,3

Neen Ts ccocssebsnesnseveucsnecens 3

Tee nc ccacnescesecccucsoon 3

Constitutional Provisions:

U.S. CONSTITUTION, First Amendment ................ 1, passim

Fifth Amendment .................... 1, 30

Eighth Amendment ................ 80

Fourteenth Amendment ...... 1, passim

Rules:

California Rule of Court 976 ..............................000+. 9

ES 8 rE ii

Miscellaneous:

Curley, How Libel Suit Sapped the Crusading

Spirit of a Small Newspaper, Wall Street Jour-

eS 25, 27

Ellis, Fairness and Efficiency in the Law of Puni-

tive Damages, 56 So. CAL. L. REV. 1 (1982)........ 27

Hill, Defamation and Privacy Under the First

Amendment, 76 CoLUM. L. REV. 1205 (1976)... 27

RESTATEMENT (2D), TORTS (1977).......................... 21

R. POSNER, ECONOMIC ANALYSIS OF Law 548 (2d.

a ensciummmsesenezeennecs 24

Wheeler, The Constitutional Case for Reforming

Punitive Damages Procedures, 69 Va. L. REV.

ER a 27

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No.

NATIONAL ENQUIRER, INC.,

Appellant,

V.

CAROL BURNETT,

Appellee.

On Appeal from the Califorinia Court of Appeal,

Second Appellate District

STATEMENT AS TO JURISDICTION

Appellant appeals from the judgment of the Califor-

nia Court of Appeal, Second Appellate District, entered

in this case on July 18, 1983, as modified August 1, 1983,

holding that California Civil Code §§ 48a and 3294, as

applied to Appellant in this case, do not violate the First,

Fifth, Eighth and Fourteenth Amendments to the United

States Constitution.

OPINIONS BELOW

The opinion of the Court of Appeal is reported offi-

cially at 144 Cal. App. 3d 991 and unofficially at 193

Cal. Rptr. 206. It is reproduced in Appendix A, infra.

The order of the Supreme Court of California denying

hearing without opinion is unreported; it is reproduced

in Appendix B, infra. The opinions of the Superior

Court of the State of California for the County of Los

Angeles are unreported; they are reproduced in Appen-

dices C and D, infra.

JURISDICTION

The judgment of the California Court of Appeal was

entered July 18, 1983 and modified August 1, 1983. A

timely petition for rehearing was denied by that court on

2

August 11, 1983. The Supreme Court of California de-

nied a timely petition for hearing on October 6, 1983.

Notice of appeal to this Court was filed in the Court of

Appeal on November 28, 1983. See Appendix E, infra.

This Court has jurisdiction under 28 U.S.C. § 1257(2).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

California Civil Code § 48a provides in relevant part:

“Libel in newspaper; slander by radio broadcast

“1. Special damages; notice and demand for correc-

tion. In any action for damages for the publication

of a libel in a newspaper, or of a slander by radio

broadcast, plaintiff shall recover no more than spe-

cial damages unless a correction be demanded and

be not published or broadcast, as hereinafter pro-

vided. ...

“2... . no exemplary damages may be recovered

unless the plaintiff shall prove that defendant made

the publication or broadcast with actual malice and

then only in the discretion of the court or jury, and

actual malice shal] not be inferred or presumed from

the publication or broadcast... .

“4. ... (d) ‘Actual malice’ is that state of mind

arising from hatred or ill will toward the plain-

a

California Civil Code § 3294 and other pertinent constitu-

tional and statutory provisions are eproduced in full at

Appendix F, p. 67a, infra.

RAISING THE FEDERAL QUESTION

As it had in the trial court, Appellant argued in the

Court of Appeal that if construed to exclude Appellant

from its protection, California Civil Code § 48a “would

be an arbitrary and irrational distinction, based appar-

ently on media content, which would violate the First and

Fourteenth Amendments of the United States Constitu-

tion,” and “lead to the unconstitutionality of the provi-

sion in question.” Appellant also contended that applica-

3

tion of California’s general punitive-damage statute, Cal-

ifornia Civil Code § 3294, to Appellant in this case would

violate the First, Eighth and Fourteenth Amendments to

the United States Constitution. The Court of Appeal re-

jected those arguments and held both that § 48a could be

applied to exclude Appellant and that Civil Code § 3294’s

provision for punitive damages based simply on “con-

scious disregard” of the rights of others was constitu-

tional as applied to Appellant. Pp. 14a, 20a-21a, infra.

Appellant renewed the same arguments to the Supreme

Court of California, which denied review. Because the

constitutionality of the statutes as applied was drawn

into question, and the decision below upheld their validity,

this Court has jurisdiction on appeal under 28 U.S.C.

§ 1257(2). See, e.g., Japan Line, Ltd. v. County of Los

Angeles, 441 U.S. 434, 440-41 (1979). Dahnke-Walker

Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921).'

STATEMENT

This is an action for libel brought by the actress Carol

Burnett against the National Enquirer, Inc., publisher

of the weekly tabloid National Enquirer. The alleged

libel consisted of a four-sentence news item in the En-

quirer’s March 2, 1976 gossip column, headlined “Carol

Burnett and Henry K. in Row,” and reading in its en-

tirety:

“At a Washington restaurant, a boisterous Carol

Burnett had a loud argument with another diner,

Henry Kissinger. Then she traipsed around the

place offering everyone a bite of her dessert. But

Carol really raised eyebrows when she accidentally

knocked a glass of wine over one diner—and started

giggling instead of apologizing. The guy wasn’t

amused and ‘accidentally’ spilled a glass of water

over Carol’s dress.”

‘If for any reason this Court were to conclude that appellate

jurisdiction under 28 U.S.C. § 1257(2) were lacking, we respectfully

request that this jurisdictional statement be treated pursuant to

28 U.S.C. $2108 as a petition for certiorari under 28 U.S.C.

§ 1257(8). Title 28 U.S.C. § 2408(b) may be applicable.

4

Ms. Burnett’s attorney demanded a retraction of that

news item “in the manner provided for in Section 48/(a)

[sic] of the Civil Code of the State of California.” Ap-

pellant agreed to retract in accordance with that statute,

and accordingly on April 6, 1976, it published the fol-

lowing retraction and apology, in bold-face type, again in

the gossip column:

“An item in this column on March 2 erroneously re-

ported that Carol Burnett had an argument with

Henry Kissinger at a Washington restaurant and

became boisterous, disturbing other guests. We un-

derstand these events did not occur and we are sorry

for any embarrassment our report may have caused

Miss Burnett.”

Notwithstanding the retraction, Ms. Burnett sued for

libel, demanding $5,000,000 compensatory damages, and

in addition $5,000,000 punitive damages. The complaint

alleged that Appellant published “a weekly newsaper of

national circulation” and that Appellee had demanded,

but not adquately received, a retraction “pursuant to

California Civil Code § 48(a) [sic].”

California Civil Code § 48a sets two separate limita-

tions on damages that can be imposed for a libel pub-

lished “in a newspaper” or by radio:* First, if an ade-

quate retraction is timely made, a plaintiff can recover

only special damages (e.g., for out-of-pocket losses), but

no general damages (e.g., for hurt feelings), and no puni-

tive damages. Second, in every case—even if no retrac-

tion is made—the statute prohibits punitive (exemplary)

damages except on proof that the publisher acted with

“that state of mind arising from hatred or il] will toward

the plaintiff.”

For four years after filing the complaint, Appellee’s

attorney continued repeatedly to allege that this case was

controlled by § 48a. The trial court indeed initially held

that the “hatred or ill will” required under § 48a could

2 Television broadcasts are covered by § 48a by virtue of Cali-

fornia Civil Code § 48.5.

5

not be shown, so that therefore § 48a precluded punitive

damages in this case. But thereupon Appellee’s attorney

moved to overturn his own repeated prior allegations

that $ 48a applied. He changed his position because, he

' frankly explained,

“it occurred to your declarant that if the National

Enquirer were not a newspaper, . . . the definition

of actual malice [requiring proof of hatred or ill

will] as contained in § 48(a) of the Civil Code would

not apply.”

The trial court at first rejected that new argument,

again holding:

“the National Enquirer, Inc. is a newspaper within

the meaning of newspaper as said term is contained

in Civil Code § 48a.”

However, six months later on Appellee’s renewed motion

the trial court revised its position and held that whether

§ 48a applied was “a triable issue of fact.”

At trial the court excluded the jury and announced,

“we are here to decide whether or not the publication is

a newspaper or magazine.” It then heard testimony on

this point from two journalism professors, the Enquirer’s

head of story control, and the Enquirer’s editor.* The

3 One professor was the Chairman of the Journalism Department

at the State University of California at Long Beach, and also the

President of the Los Angeles chapter of Sigma Delta Chi journal-

ism fraternity. He testified that based on his five years’ experience

as a practicing reporter and twenty-two years as a journalism

professor, and his “talking with professionals in the newspaper

business,” the Enquirer is what is customarily called a “tabloid

newspaper.” The other witness, a retired journalism professor

presented by Appellee, testified that he had never read the Enquirer

before being retained by Appellee, but that based on his research

of dictionary definitions, his layman's reading of court decisions,

and his reviewing the apparent timeliness of only one article, he

thought the Enquirer should not be treated as a newspaper. He

added that:

“I think that deadline thing is not as crucial as the actual

content of the publication. ... The determining factor, to

me, was what is referred to as ‘news while it’s news,’ the hot

6

head of story control testified without contradiction that

the Enquirer has an average of twenty-five to thirty “hot

potato” news items each week, and that late-breaking

news items sometimes are prepared the same morning

the paper goes to press. The editor supplied examples

of rush stories, and listed numerous governmental au-

thorities and trade groups that classify the Enquirer as

a newspaper.‘

The trial court at the conclusion of the hearing an-

nounced that

“there probably isn’t anything spelled out in terms

of standards how to weigh these things. There isn’t

anything spelled out in the statute. Unfortunately,

the cases don’t spell it out.” Pp. 44a-45a, infra.

The trial court then said that it had concluded that the

test under § 48a was whether “timely news predominates.”

“That to me,” said the court, “is the critical thing in de-

news concept that the Supreme Court expressed when it ex-

tended the New York Times protection to public figures. The

Supreme Court sought to protect hot news.”

*The Enquirer on its front page for years has claimed the

“Largest Circulation of Any Paper in America.” (Emphasis sup-

plied). The editor testified without contradiction that the Enquirer

has been granted membership in the American Newspaper Pub-

lishers Association; it subscribes to the Reuters News Service; its

staff call themselves “newspaper reporters ;” it describes its business

as “newspaper” in its filing with the Los Angeles County Assessor

and in its insurance applications; the Nebraska revenue department

has ruled that “the National Enquirer meets the qualifications of a

newspaper and is thus exempt from sales and use tax;” and the

United States Department of Labor describes the Enquirer as “‘be-

longing to establishments primarly engaged in publishing or print-

ing and publishing newspapers.” It was also uncontradicted that

the Enquirer is printed on newsprint in tabloid format, is not

stapled, and is of a size, format and layout indistinguishable from

such tabloid dailies as the New York Daily News and Chicago

Sun-Times, while altogether different in format from such maga-

zines as, ¢.g., Time or Newsweek. A grouping of the Enquirer in

1960 with national magazines was based solely on advertising mar-

keting; moreover, there was uncontradicted evidence that the En-

quirer had drastically changed its content and become far more

active in newsgathering since 1960.

7

ciding whether this is a newspaper or a magazine.” P.

45a, infra. After examining four issues of the Enquirer

(that did not include the issue in question), the court held

that although “I’m not saying the paper [sic] is totally

devoid of it,” ibid., nevertheless in the court’s view “timely

news” did not “predominate,” ibid., so that “at least for

what it is worth I am ruling that the Enquirer is a

magazine for purposes of not giving them the benefit of

Civil Code Section 48(a) [sic].” P. 51a, infra.

At trial before a jury the editor of the Enquirer testi-

fied that the retraction had been published simply to com-

ply with Appellee’s demand under § 48a and based on her

assurance that the news item had not been correct.’ Her

counsel specifically conceded on the record that there had

been no measurable damage to her reputation and that

“the only economic loss that she sustained was $250 to

her attorneys in endeavoring to get a retraction.” Her

counsel added that

“the only damages we are talking about in this case,

the only relevant damages, are general damages for

emotional distress.”’

5 The evidence at trial showed that Appellant’s writers and edi-

tors had had at least one reliable source for every element of the

four-line news item (except the characterization of a loud discus-

sion with Mr. Kissinger as a “row’’), that some parts had two

sources, and that none had been contradicted by anyone prior to

publication. Appellee, concededly a public figure, admitted that she

had in fact been in the restaurant, by her own recollection had

drunk “two, possibly three” glasses of wine, had then shared her

dessert with other diners who were strangers, and had had an

animated conversation with Henry Kissinger, which some char-

acterized as loud. She testified that although she objected to the

word “boisterous” in the news item, “effervesent” would have

been an accurate description of her behavior that evening and

would have satisfied her. She also testified that she had portrayed

drunks “numerous times” in order “to make people laugh” because

“It’s comedy.”

8

The court instructed the jury, because it held Civil

Code § 48a was inapplicable, that if liability were found,®

general compensatory damages could be awarded in what-

ever amount the jury thought “just and reasonable.” The

court also instructed that in addition a punitive award

could be imposed “in your discretion.” It rejected Appel-

lant’s contention that punitive damages required showing

of hatred or ill will and therefore could not be awarded in

the face of Appellee’s counsel’s concession that

“I’m not... saying that these people [Appellant]

... have any actually [sic] ill will.”

Because of its holding that Civil Code § 48a’s protections

for a “newspaper” did not apply, the court instructed

that once liability was established, for a punitive award

all that had to be shown—and by merely a preponderance

of the evidence—was that Appellant had acted with “con-

scious disregard for the rights of others.” The court

added that “the law provides no fixed standards as to the

amount of such punitive damages.”

The jury set compensatory damages at $300,000,

and in addition imposed punitive damages of $1,300,000

(one-half of Appellant’s net worth). The trial court—

holding that “the record is clear that she suffered no

actual pecuniary loss as a result of the libelous article,”

p. 58a, infra—reduced the compensatory damage award

to $50,000. With regard to punitive damages, the court

said that Appellant habitually engaged in a “style of

journalism” that the court characterized as “legalized

pandering designed to appeal to the readers’ morbid sense

of curiosity,” p. 60a, infra, and on that basis the court

approved punishment of $750,000.

On appeal, the California Court of Appeal approved all

the reasoning and instructions of the trial court. The

Court of Appeal conceded that “no definitive exposition

of the scope of § 48a has been articulated sufficiently for

® The liability standard was clear and convincing proof of know-

ing or reckless disregard for truth or falsity. See New York

Times Co. V. Sullivan, 376 U.S. 254 (1964).

us to say the question of its application here is without

doubt.” P. 13a, infra. It acknowledged that heretofore

California had applied the protection of § 48a to the

Saturday Evening Post, to the Reader’s Digest, to edi-

torials, and to “columnists, critics, editors.” P. 9a, infra.

The Court of Appeal did not comment at all on one of its

own prior decisions, called to its attention by Appellant,

in which it had itself held without hesitation that § 48a

applies to the National Enquirer.’ Nevertheless, in spite

of those other applications, the court said, § 48a applied

“as the trial court supposed” only to periodicals whose

stories upon review by a court showed “constraints of

time,” and that “the trial court consistently with the fore-

going rationale correctly determined the National En-

quirer should not be deemed a newspaper for the purposes

of the instant litigation.” P. 14a, infra.

The court never addressed Appellant’s argument that if

applied to exclude Appellant, California Civil Code § 48a

would violate the guarantees of equal treatment contained

in the First and Fourteenth Amendments. And rejecting

Appellant’s challenge to imposition of punishment for its

“style of journalism” based simply on finding “conscious

disregard for the rights of others” by a preponderance

of the evidence, the court held that this was the standard

for punishment set by California Civil Code § 3294, the

ordinary punitive-damage statute, and that that statute

as applied to Appellant was constitutional. The court

commented :

“While a review of the decisions of that court [the

Supreme Court of the United States] on the subject

reveals a wide spectrum of opinion concerning the

propriety of punitive damages in instances like the

7 Faan V. National Enquirer, Inc., 78 Cal. App. 3d 543, 144 Cal.

Rptr. 496 (1978), reprinted at p. 73a, infra. A petition for review

of the Faan case was denied by the California Supreme Court, but

that court held that the court of appeal’s opinion in that case did

not qualify to be published in the permanent volume of reports.

Such publication is reserved for only an opinion that “establishes

a new rule of law,” criticizes an existing rule, or “involves a legal

issue of continuing public interest.” California Rule of Court 976.

10

one before us, we do not find in any of these au-

thorities an announcement of definitive principles

which a state must apply to awards of such dam-

ages when, as here, the New York Times test has

been satisfied.” P. 27a n.12, infra.

The court said it presumed from the excessiveness of

the award that the jury had been motivated by “passion

or prejudice” against Appellant, p. 24a, infra, but never-

theless affirmed the judgments of liability and $50,000

compensatory damages. It offered Appellee a choice be-

tween reduction of the penalty amount to $150,000, or

a partial new trial limited to punitive damages. Appel-

lee elected the latter. The Supreme Court of California

denied review.

THE QUESTIONS ARE SUBSTANTIAL

By holding that the retraction statute’s protection is

to depend on a court’s impression of a tabloid’s content,

and also by holding that a public figure can recover

punitive damages when the publisher had no ill will (the

absence of which Appellee conceded), the decision below

conflicts with holdings of at least five state courts and

two federal courts of appeals, and violates the First and

Fourteenth Amendments. Retraction statutes similar to

California’s exist in more than thirty states. A number

of them, like California’s, describe their coverage of the

written press by simply referring to “newspapers.” * Un-

til now, no state had attempted to define “newspaper” in

terms of news content,’ and decisions in parallel contexts

have held that to make a periodicai’s legal status turn on

judicial impressions of its content would violate the First

and Fourteenth Amendments. F.g., Hadwen, Inc. v. De-

partment of Taxes, 139 Vt. 37, 422 A.2d 255 (1980),

8 E.g., IDAHO CODE § 6-712; IND. CopE § 34-4-15-1; Iowa CopDE

§ 659.2; Ky. Rev. STaT. § 411.051; MINN. STAT. § 548.06; Miss.

CopE § 95-1-5; Nev. Rev. STAT. § 41.336; N. DAK. CENT. CODE

§ 14-02-08; S. DAK. Cop. Laws § 20-11-7; UTAH CopDE § 45-2-1.

® Minnesota, for example, has interpreted “newspaper” in its re-

traction statute (on which California’s was modeled) to include

a mimeographed circular that appeared no more than eight times

per year. Soderberg Vv. Halver, 276 Minn. 315, 150 N.W.2d 27 (1967).

ll

appeal dismissed, 451 U.S. 977 (1981). In addition, the

court’s order that there be a new civil trial for no pur-

pose except to set punishment for the Enquirer violates

the same constitutional guarantees, because it was con-

ceded that Appellant did not publish with any ill will,

and that Appellee, a public figure, suffered no measur-

able harm to reputation at all.

I. BY CAPRICIOUSLY PROTECTING SOME WEEKLY

PERIODICALS BUT NOT OTHERS, DEPENDING

ON THEIR CONTENT, THE DECISION CONFLICTS

WITH DECISIONS OF TWO STATE SUPREME

COURTS, OF TWO FEDERAL COURTS OF AP-

PEALS, AND OF THIS COURT.

A. The Statute Is Applied Arbitrarily and Without

Standards.

The trial court held a‘hearing “to decide whether or

not the publication is a newspaper or magazine.” The

court candidly conceded that

“there probably isn’t anything spelled out in terms

of standards how to weigh these things. There isn’t

anything spelled out in the statute. Unfortunately,

the cases don’t spell it out.” Pp. 44a-45a, infra.

That was understatement. “Arbitrary and capricious”

is an epithet so often invoked in legal pleadings that by

overuse it has almost lost its meaning. But “arbitrary

and capricious” is the only phrase to describe Califor-

nia’s shifting, inconsistent and standardless applications

of its Civil Code § 48a.

The trial court concluded, and the Court of Appeal

agreed, that the National Enquirer is outside the sub-

stantial protections that § 48a provides “in any action

for damages for the publication of a libel in a news-

paper.” Yet that holding is impossible to square with

previous applications of § 48a, which have held that

“newspaper” in § 48a includes the Saturday Evening

Post *® and even the monthly Reader’s Digest," and that

10 Harris v. Curtis Pub. Co., 49 Cal. App. 2d 340, 121 P.2d 761

(1942).

11 Briscoe V. Reader's Digest Ass'n, 4 Cal. 3d 529, 483 P.2d 34

(1971).

12

it applies to “columnists, authors, critics” * as well as

editorials,* and to magazines and perhaps even books."

California unhesitatingly applies § 48a’s protection to

other weekly newspapers, at least those published in the

State of California."®.In California the application of

§ 48a goes back and forth from case to case, without any

objective reference point. The California holdings ar-

ray themselves in the following incomprehensible jumble:

Newspaper Not a Newspaper

Saturday Evening Post National Enquirer

Reader’s Digest (in this case)

Friday Observer (weekly) TV Guide *

B’nai B’rith Messenger

(weekly)

Magazines and possibly

textbooks

12 Pridonoff v. Balokovich, 36 Cal. 2d 788, 791, 228 P.2d 6, 8

(1951).

13 Kapellas v. Kofman, 1 Cal. 8d 20, 459 P.2d 912 (1969); Maid-

man V. Jewish Publications, Inc., 54 Cal. 2d 6438, 355 P.2d 265

(1960).

14 Johnson V. Harcourt, Brace, Jovanovich, Inc., 48 Cal. App. 3d

880, 118 Cal. Rptr. 370 (1974) (dictum).

15 F.g., Maidman v. Jewish Publications, Inc., supra (weekly

B’nai B’rith Messenger). Thus last year in Gomes v. Fried, 136

Cal. App. 3d 924, 186 Cal. Rptr. 605 (1982), it was held that the

protection of § 48a extended to a publication called the Friday Ob-

server, which was published once per week in San Leandro, Cali-

fornia. Appellee’s own expert testified regarding the Enquirer that

“Well, being a weekly newspaper [sic—his word], it wouldn’t

be like a newspaper that tries to get ‘today’ in the first para-

graph of every story.”

When asked about local California small-town weeklies, he ex-

plained:

“Well, 48(a) protects California newspapers. They are not

national exposure. They are not national newspapers.”

There are over 400 weekly newspapers published in California.

16 Montandon v. Triangle Publications, Inc., 45 Cal. App. 3d

898, 120 Cal. Rptr. 186, cert. denied, 423 U.S. 893 (1975) (TV

Guide, the court noted, describes itself as a “magazine;” see p.

49a, infra).

13

California has not even applied § 48a consistently to

the National Enquirer itself. Five years ago in Faan

v. National Enquirer, Inc., 78 Cal. App. 3d 543, 144 Cal.

Reptr. 496 (1978), p. 73a, infra, the same California

court of appeal held that § 48a applied and indeed was

“the statute which is determinative,” p. 77a, infra, in

dismissing a suit against the National Enquirer." Then

came the present case, which held that the Enquirer

should not be treated as a “newspaper” after all. And

then, less than a month ago, the same California court

of appeal in yet another opinion, not involving § 48a,

acknowledged that “The Enquirer publishes a weekly

newspaper known as the ‘National Enquirer.” East-

wood v. Superior Court, —— Cal. App. 8d —— (Ct.

App., 2d Dist., No. 67746, Dec. 1, 1983) (emphasis

supplied) .**

The point is, California as shown by its totally in-

consistent pattern of inclusion in and exclusion from § 48a

has been following not law, but whimsy. If the Califor-

nia statute were a regulation being applied so ecapri-

ciously by administrators, there is no doubt that it would

violate constitutional requirements of certainty and equal

protection. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356

(1886) ;** see also Kunz v. New York, 340 U.S. 290, 293-

17 See note 7, supra.

18In other contexts, the Supreme Court of California has also

held that even an information sheet prepared and circulated by in-

mates of a state prison is a “newspaper.” Bailey v. Loggins, 32

Cal. 3d 907, 654 P.2d 758 (1982). So also, California has held, is

a political tract distributed weekly. Long v. City of Anaheim, 255

Cal. App. 2d 191, 63 Cal. Rptr. 56 (1967). So is a give-away

paper subsisting on advertisements. Laguna Pub. Co. v. Golden Rain

Foundation, 131 Cal. App. 3d 816, 182 Cal. Rptr. 813 (1982), appeal

dismissed, 103 S. Ct. 1170 (1983).

19“Though the law itself be fair on its face and impartial in

appearance, yet, if it is applied and administered by public author-

ity with an evil eye and an unequal hand, so as practically to make

unjust and illegal discriminations between persons in similar cir-

cumstances, the denial of equal justice is still within the prohibition

of the Constitution.” Yick Wo v. Hopkins, 118 U.S. 356, 373-74

(1886).

14

94 (1951); Saia v. New York, 334 U.S. 558, 560 (1948).

That it is instead being capriciously applied by Califor-

nia courts does not alter its unconstitutionality as ap-

plied, under the First Amendment as well as the Four-

teenth. Police Dept. v. Mosley, 408 U.S. 92, 98 (1972);

Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967) ;

cf. also Bouie v. City of Columbia, 378 U.S. 347, 354

(1964) ; Smith v. Cahoon, 283 U.S. 553 (19381).

B. The Statute Unconstitutionally Distinguishes

Among Publications Based Upon Their Content.

To the extent that they articulated any rationale at

all, both courts below made the applicability of § 48a

turn, not on the physical qualities of the tabloid, or any

other objective test, but rather upon the courts’ subjective

impressions of the newsworthiness of its content. As the

trial court explained,

“I mean, I don’t have any problem distinguishing

the New York Daily News from the National En-

quirer.

“Sure, they are both in tabloid forms, but that

goes to form and not substance.

“And that’s what counts.” P. 47a, infra.

The trial court held that the Enquirer did not qualify

as a “newspaper” because based upon the court’s reading

of four issues (not even including the one in which the

news item complained of appeared), “the timely news”

did not appear to “predominate,” and “[t]hat to me is

the critical thing in deciding whether this is a newspaper

or a magazine.” P. 45a, infra.” The Court of Appeal,

endorsing the trial court’s impression of the timeliness

of the Enquirer’s content, agreed that § 48a applied only

where it appeared from the way the stories were written

20If the apparent timeliness of content were a legitimate test,

then a publication’s legal status could vary from issue to issue.

And then there would be a simple due process violation here, be-

cause the trial court never read the issue in which the news item

appeared, but instead examined four other issues of the Enquirer.

15

that “the constraints of time as a function of the require-

ments associated with production dictate the result,” and

that “the trial court consistently with the foregoing cor-

rectly determined the National Enquirer should not be

deemed a newspaper.” P. 14a, infra.

In upholding a statute construed to define “newspaper”

based on content and on what to a judge appears to be

“timely news,” the decision below is in flat conflict not

only with this Court’s holdings, but with a decision of the

Supreme Court of Vermont that recently held just the op-

posite. In Hadwen, Inc. v. Department of Taxes, 139

Vt. 37, 422 A.2d 255 (1980), appeal dismissed, 451 U.S.

977 (1981), the Vermont court was asked to rule on

whether a giveaway advertising weekly qualified as a

“newspaper” for purposes of Vermont’s use tax exemp-

tion. Referring to the First Amendment and to the need

to “avoid a construction which may lead to the uncon-

stitutionality of the provision in question,” the Vermont

Supreme Court explained:

“Therefore, we decline to adopt a definition of ‘ news-

paper’ publications based upon their content .

139 Vt. at 39, 422 A.2d at 257 (emphasis sup-

plied).

In so holding, the court relied on this Court’s decisions

in Police Dept. v. Mosley, 408 U.S. 92, 95 (1972), and

Erznoznik v. City of Jacksonville, 422 U.S. 205, 215

(1975).

The same issue arose last year in Massachusetts, again

in the context of applying the exemption for a “news-

paper” in a tax statute to a weekly tabloid consisting

85% of advertisements. The highest court of Massachu-

setts noted that

“The Town Crier contains a large amount of adver-

tising, but whether it is a newspaper cannot depend

on the ratio of advertising to other matters.” Green-

field Town Crier, Inc. v. Commissioner, 385 Mass.

692, 696, 433 N.E.2d 898, 901 (1982).

16

The Massachusetts court referred to the First Amend-

ment and said that on that point it adopted the reason-

ing of the Vermont court in Hadwen, supra. Ibid.”

California’s content-based approach to meting out pro-

tection, based on a court’s perception of “timely news,”

also is in conflict with decisions of at least two United

States Courts of Appeals. In New Jersey State Lottery

Comm’n v. United States, 491 F.2d 219 (3d Cir. 1974),

vacated on other grounds, 420 U.S. 371 (1975), the

Third Circuit sitting en banc held that

“The first amendment makes clear that it is beyond

the competency of any governmental agency to de-

termine, a priori, that any item of information is,

for any news medium, not news.” 491 F.2d at 223.

The same court reiterated that rule just last year in

Ad World, Inc. v. Township of Doylestown, 672 F.2d 1136

(3d Cir.), cert. denied, 456 U.S. 975 (1982), holding that

a sixteen-page weekly tabloid consisting mainly of adver-

tising was a “newspaper” and as such was constitution-

ally entitled to be exempt from a local ordinance restrict-

ing distribution of advertising materials. And just last

month the Second Circuit, in construing the “fair use”

provisions of the Copyright Act to accord with constitu-

tional “values of free expression,” explicitly rejected the

approach taken by the California courts here:

“The trial court characterized its task as deciding

‘whether the Nation’s article was “news reporting”

,

“(A] careful reading of the opinion reveals that the

district judge decided the piece was not news report-

ing because it contained insufficient ‘hot news’ to be

21 Similarly, in Sears, Roebuck & Co. v. State Tax Comm’n, 370

Mass. 127, 345 N.E.2d 893 (1976), the Supreme Judicial Court of

Massachusetts held that a tax exemption for “newspapers” should be

construed to include even advertising inserts prepared by Sears,

Roebuck & Co., in part because of the “effect on First Amendment

freedoms.” 370 Mass. at 131, 345 N.E.2d at 896. Although both

Hadwen and Greenfield Town Crier were cited to the court below,

its opinion made no reference to them.

17

so classified. The court, in short, substituted its own

views concerning the quality of the journalism in

The Nation article, and then determined that it was

not news because it was not good or genuine news.

“We fully agree with our brother Meskill that

courts should be ‘chary’ of deciding what is and

what is not news.” Harper & Row, Publishers, Inc.

v. Nation Enterprises, Nos. 83-7277, 83-7327, U.S.

Court of Appeals, 2d Cir. (Nov. 17, 1983), slip op.

at 193-194.

The Vermont, Massachusetts and Second and Third Cir-

cuit interpretation of the Constitution is correct, and the

California view is wrong. As this Court has held, “above

all else, the First Amendment means that government

22 The California courts’ a priori definition of “newspaper” based

on what a court considers timely news has never been the judicial

understanding of “newspaper.” For example, in Friedman’s Ez-

press, Inc. V. Mirror Transp. Co., 71 F. Supp. 991 (D.N.J. 1947),

aff'd, 169 F.2d 504 (3d Cir. 1948), construing the definition of

“newspaper” in the federal Motor Carrier Act, the court reminded:

“The proportion of news items to advertisements and special

features varies with different papers; and in the Sunday issues

of Metropolitan journals which are imposing in bulk, if not

always in contents, the proportion of news to the rest of the

printed and pictured matter is but small. News of world-

shattering import will be conveyed to readers in far less space

than is occupied in calling attention to contraptions for shapely

confinement of the female figure, or for perfumes guaranteed to

slay the most recalcitrant misogynist, or for conveying the

reminder that even your best friends won’t tell you. Reports

of discussions at the United Nations Organization or Ecclesi-

astical synods yield in amount of line-space to paid recital of

the ultimate in boudoir furnishings or kitchen equipment. The

greater part of the matter furnished for the edification of the

Sunday newspaper reader is concerned with salesmanship, fic-

tion and mental titillators rather than the exposition of news.”

As Judge Learned Hand observed, “That paper may print it ver-

batim, or a summary of it, or a part of it. The last two are cer-

tainly as authentically new and original as the dispatch itself... .”

United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.

1943), aff'd, 326 U.S. 1 (1945).

18

has no power to restrict expression because of its mes-

sage, its ideas, its subject matter, or its content.” Police

Dept. v. Mosley, 408 U.S. 92, 95 (1972). Any regulation

based on a newspaper’s “selection of news stories,” this

Court has held, “would be incompatible with the First

Amendment.” Pittsburgh Press Co. v. Pittsburgh Comm’n,

413 U.S. 376, 385 (1973). Yet here the statute improp-

erly “exact{ed] a penalty on the basis of the content of

a newspaper.” Miami Herald Pub. Co. v. Tornillo, 418

U.S. 241, 256 (1974); see also Pruneyard Shopping Cen-

ter Vv. Robins, 447 U.S. 74, 88 (1980).

The Chief Justice recognized and warned about the

danger of picking and choosing among publications in

First National Bank v. Bellotti, 435 U.S. 765, 801 (1978)

(concurring opinion) :

“The very task of including some entities within the

“institutional press” while excluding others, whether

undertaken by legislature, court, or administrative

agency, is reminiscent of the abhorred licensing

system of Tudor and Stuart England—a system the

First Amendment was intended to ban from this

country.”

The same had been earlier recognized in Grosjean V.

American Press Co., 297 U.S. 233 (1936), where this

Court unanimously struck down a tax that had been

enacted “with the plain purpose of penalizing the pub-

lishers and curtailing the circulation of a selected group

of newspapers.” 297 U.S. at 251 (emphasis supplied).

In Winters v. New York, 333 U.S. 507, 510 (1948),

this Court recognized that “(t]he line between the in-

forming and the entertaining is too elusive” to permit

the legal status of publications to hinge on such distinc-

tions. And in Gertz v. Robert Welch, Inc., 418 U.S. 323,

346 (1974), this Court rejected a proposal that courts

should decide “which publications address issues of ‘gen-

eral or public interest’”’ because, it said, “We doubt the

wisdom of committing this task to the conscience of

judges.”

19

Earlier this year, in Minneapolis Star & Tribune Co. Vv.

Minnesota Commissioner, 103 S.Ct. 1865 (1983), this

Court reminded that a statute violates the First and

Fourteenth Amendments when it “targets individual pub-

lications within the press.” 103 S.Ct. at 1376. There

Minnesota “has created a special tax that applies only to

certain publications protected by the First Amendment.”

103 S.Ct. at 1870 (emphasis supplied). As this Court

emphatically concluded:

“We think that recognizing a power in the State

not only to single out the press but also to tailor the

tax so that it singles out a few members of the press

presents such a potential for abuse that no interest

suggested by Minnesota can justify the scheme.”

103 U.S. at 1375 (emphasis supplied).

C. The Statute As Applied To Exclude This Weekly

Tabloid Is Void for Vagueness.

It is of course well established that a newspaper has

a First Amendment right to decline to publish material.

Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).

No authority could have required the National Enquirer

to print the retraction that it published here.

However, brandishing and invoking explicitly the provi-

sions of § 48a, see p. 4, supra, Appellee’s counsel de-

manded a retraction “in the manner provided for in

Section 48(a) [sic] of the Civil Code of the State of

California.” Reasonably relying on being covered by

§ 48a, the Enquirer promptly complied and printed a re-

traction and apology, giving up its First Amendment

right recognized in Tornillo.* It did so on the under-

23 Pp. 4-5, supra. Because the trial court held that § 48a excludes

the National Enquirer, the adequacy of the retraction under § 48a

was never put to the jury. The dicta of both courts below (pp.

25a, 56a, infra), complaining that the retraction was insufficiently

abject, we believe simply do not bear scrutiny. A comparison of the

retraction the trial court said would have been adequate, p. 64a,

infra, with the one that was printed, p. 4, supra, speaks for itself,

particularly when compared to the much more cursory “corrections”

that appear in most newspapers nearly every day.

20

standing that thereby its potential liability for general

and punitive damages would be eliminated. As the Su-

preme Court of California has explained, “the retraction

provisions of section 48a provide a reasonable substitute

for general damages... .” Werner v. Southern Califor-

nia Associated Newspapers, 35 Cal. 2d 121, 126, 216 P.2d

825, 828 (1950), appeal dismissed on appellant’s motion,

340 U.S. 910 (1951).

Now California has held that, contrary to what every-

one long thought,** the statute’s protection does not ex-

tend to this tabloid at all. But a statute that by the

uncertainty of its terms and application causes First

Amendment rights to be lost is itself void for vagueness

under both the free speech and due process guarantees

incorporated in the Fourteenth Amendment.

“Vague laws in any area suffer a constitutional in-

firmity. When First Amendment rights are involved,

we look even more closely... .” Ashton v. Kentucky,

384 U.S. 195, 200 (1966) (footnote omitted).

Accord, NAACP vy. Button, 371 U.S. 415, 432-33, 438

(1963) ; Smith v. California, 361 U.S. 147, 151 (1959);

Winters v. New York, supra. A statute is unconstitu-

tionally vague when “men of common intelligence must

necessarily guess at its meaning and differ as to its ap-

plication... .” Baggett v. Bullitt, 377 U.S. 360, 367

(1964); see also Bouie v. City of Columbia, supra.

Vagueness is also particularly intolerable when punish-

ment is at stake. See, e.g., Cantwell v. Connecticut,

310 U.S. 296 (1940); Lanzetta v. New Jersey, 306 U.S.

451 (1939). Appellant’s First Amendment rights were

sacrificed here because of the vagueness of the statute.

And “([g]lovernmental restraint on publishing need not

fall into familiar or traditional patterns to be subject

to constitutional limitations ....” Tornillo, supra, 418

U.S. at 256.

The trial court recognized, “apparently I’ve caught you by

surprise.” P. 49a, infra. As earlier noted, the trial court had twice

earlier ruled in this very case that the Enquirer was protected by

§ 48a. See pp. 4-5, supra.

21

II. BY HOLDING THAT THE FIRST AMENDMENT

PERMITS PUNITIVE DAMAGES FOR A PUBLIC

FIGURE IN A LIBEL CASE—WHEN HATRED, ILL

WILL AND DAMAGE TO REPUTATION ALL WERE

ABSENT—THE DECISION CONFLICTS WITH

HOLDINGS OF THREE STATE COURTS AND

WITH THE CLEAR IMPLICATION OF DECISIONS

OF THIS COURT.

Whether punitive damages, with their vast latitude for

punishing unpopular opinion, are tolerable under the

First and Fourteenth Amendments in a libel case brought

by a public figure is an issue left unsettled by Gertz v.

Robert Welch, Inc., 418 U.S. 323 (1974). The American

Law Institute recognizes that “[a]n authoritative de-

termination . . . awaits further action by the Court.”

RESTATEMENT (2D), TORTS, § 621, comment d (1977).

Also totally unsettled, if punitive damages are in some in-

stances to be permitted, is the question of what constitu-

tional standards govern their application in suits by

public figures. For here it is undisputed that there was

no hatred or ill will by the publisher. As Appellee’s

counsel] stated at trial,

“I’m not... saying that these people [Appellant]

. . . have any actually [sic] ill will.”

No damage to reputation was claimed, either. Appellee’s

counsel stated: “the only damages we are talking about

in this case, the only relevant damages, are genera] dam-

ages for emotional distress.” But he added: “the first two

items [special and general damages] have to do with

Carol’s case, what she’s lost. The second part [punitive

damages} is really against the National Enquirer.”

(Emphasis supplied. )

A. The State Courts Are in Conflict.

In square conflict with the decision below, three states

have held that the First and Fourteenth Amendments

bar punitive damages in libel actions for public figures

22

who recover adequate compensatory damages.” In

Sprouse v. Clay Communication, Inc., 211 S.E.2d 674

(W .Va.), cert. denied, 423 U.S. 882 (1975), the Supreme

Court of West Virginia in disallowing punitive damages

did so because they “would have a chilling effect upon

the legitimate exercise of First Amendment rights and

would lead to the type of self-censorship which has been

the object and purpose of the United States Supreme

Court to prevent since New York Times v. Sullivan,

supra.” 211 S.E.2d at 692. That court’s reasoning was

adopted by Louisiana in McHale v. Lake Charles Amer-

ican Press, 390 So.2d 556, 570 (La. App. 1080), cert.

denied, 452 U.S. 941 (1981). The Supreme Judicial

Court of Massachusetts likewise has held punitive dam-

ages barred, resting its holding on both state grounds

and federal constitutional policy:

“We reject the allowance of punitive damages in

this Commonwealth in any defamation action, on

any state of proof, whether based in negligence, or

reckless or wilful conduct. We so hold in recognition

that the possibility of excessive and unbridled jury

verdicts, grounded on punitive assessments, may im-

permissibly chill the exercise of First Amendment

rights by promoting apprehensive self-censorship.”

Stone v. Essex County Newspapers, Inc., 367 Mass.

849, 860, 330 N.E.2d 161, 169 (1975).

Thus, as the law now stands after the decision below,

public-figure libel plaintiffs in California may obtain

punitive damages without even proving a publisher’s ill

25 In addition, at least two states have held that punitive damages

in libel cases are barred by the free-speech and free-press guar-

antees of their own constitutions. Hall v. May Dept. Stores, 292 Ore.

131, 637 P.2d 126 (1981); Taskett v. KING Broadcasting Co., 86

Wash. 2d 439, 546 P.2d 81 (1976). Two more states have held that

punitive damages for libel are barred by their constitutions unless

there is proof (concededly absent here) that the publisher acted

with actual hatred or ill will. AAFCO Heating & Air Conditioning

Co. Vv. Northwest Publications, Inc., 162 Ind. App. 671, 321 N.E.2d

580 (1974), cert. denied, 424 U.S. 913 (1976) ; Walker v. Colorado

Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450, cert. denied, 423 U.S.

1025 (1975).

23

will, but in other states they are held barred by the

United States Constitution from any punitive award at

all. And to the extent that libel plaintiffs may have a

choice of states in which to sue, cf. Keeton v. Hustler

Magazine, Inc., No, 82-485, they will be able to select

those where punishment of publishers is encouraged.

That is an intolerable conflict among the states on a mat-

ter of federal constitutional law. It is unfair to plain-

tiffs and defendants alike. Only this Court can resolve it.

B. On the Broad Instructions Approved Here, Punitive

Damages Unconstitutionally Punish for Legal Ex-

pression by Unpopular Publishers.

The trial court advised the jury, in an instruction

which the Court of Appeals approved, that the malice

required for an award of punitive damages was simply

“conduct . . . carried on by the defendant with a con-

scious disregard for the rights of others,” and that this

might be established by a simple preponderance of the

evidence. The court added:

“The law provides no fixed standards as to the

amount of such punitive damages, but leaves the

amount to the jury’s sound discretion, exercised with-

out passion or prejudice.”

We cannot state the constitutional problem raised by

such instructions any better than this Court did in Gertz

v. Robert Welch, Inc., 418 U.S. 323, 350 (1974):

“In most jurisdictions jury discretion over the

amounts awarded is limited only by the gentle rule

that they not be excessive. Consequently, juries as-

sess punitive damages in wholly unpredictable

amounts bearing no necessary relation to the actual

harm caused. And they remain free to use their

discretion selectively to punish expressions of un-

popular views.”

Anomalous as they are in other contexts, punitive dam-

ages are particularly bizarre and dangerous when applied

to First Amendment conduct. The stated purpose of puni-

tive—“exemplary”’—damages is punishment and deter-

rence. See, e.g., City of Newport v. Fact Concerts, Inc.,

24

453 U.S. 247, 266-67 (1981).** Punitive damages can in-

deed set an example, and that example chills others, and

with them a wide swath of speech and press activities.”

Yet the rule this Court has consistently applied under the

First Amendment is that lawful speech must not be de-

terred, and that speech may be regulated only by clearly

defined and evenhanded standards. See, e.g., Grayned V.

City of Rockford, 408 U.S. 104, 108 (1972); NAACP v.

Button, 371 U.S. 415 (1963). This Court has struck

down procedures that “create the danger that the legiti-

mate utterance will be penalized.” Spieser v. Randall,

357 U.S. 513, 526 (1958). Punitive damages are the only

instances in which some courts routinely endorse the chill-

ing of First Amendment freedoms.

The threat of unlimited punitive damages is particu-

larly troublesome to publishers because, unlike compen-

satory damages, punitive awards are unpredictable in

amount, and so the degree of care in preparing a story

cannot be related to the potential risk. (Here, for ex-

ample, the plaintiff concededly suffered no damage except

alleged emotional distress, yet the punishment imposed by

the jury was $1,300,000.) Punitive awards thus habitu-

ally violate the constitutionally mandated requirement of

proportionality in punishment. See Solem v. Helm, 103

S.Ct. 3001 (1983). Unpredictability is heightened be-

cause in many states, including California, a publisher

cannot insure against punitive damages. A single un-

26 There is no doubt that “[r]Jetribution and deterrence are not

legitimate nonpunitive governmental objectives.” Bell v. Wolfish,

441 U.S. 520, 539 n.20 (1979). Punitive damages “are private

fines.” Gertz v. Robert Welch, Inc., supra, 418 U.S. at 350. In Cali-

fornia they “are assessed to punish the defendant and not to com-

pensate for any loss suffered by the plaintiff.” Brewer v. Second

Baptist Church, 32 Cal. 2d 791, 801, 197 P.2d 713, 720 (1948).

27 Based upon economic analysis of their overbroad deterrent

effect, Judge Posner has concluded that in libel cases “punitive

damages should be disallowed.” R. POSNER, ECONOMIC ANALYSIS OF

Law 543 (2d ed. 1977).

25

expected verdict may cripple a publisher.** At the same

time, the hope of large windfalls encourages plaintiffs to

file suits.

The greatest danger, of course, is that punitive dam-

ages will be used for arbitrary punishment of unpopular

publishers and unpopular views. To permit such fines

“licenses the jury to create its own standard in each

case.” Herndon v. Lowry, 301 U.S. 242, 263 (1937).

Again, this Court has succinctly stated the problem: “it

cannot be ignored that punitive damages may be em-

ployed to punish unpopular defendants.” JBEW v. Foust,

442 U.S. 42, 50-51 n.14 (1979). That is exactly what

happened at the trial in this case. Having been told that

“The second part is really against the National En-

quirer,” the jury came back with a grotesque verdict of

$1,300,000 punitive damages. The trial judge then filed

an opinion explaining that he did not approve of the

Enquirer either, and, although cutting the amount, that

he believed that punishment was appropriate because of

distaste for the Enquirer’s “style of journalism,” which

the court described as “legalized pandering designed to

appeal to the readers’ morbid sense of curiosity.” P. 60a,

infra. In other words, the trial court was willing to

punish for “style,” and for publications not even at

issue in this case—conduct which the court itself de-

scribed as “legalized.” The fact that Appellee rejected as

insufficient a punitive award of $150,000, and instead

28 See, for example, the $2.5 million punitive libel verdict against

the Alton (Ill.) Telegraph. Cf. Green v. Alton Telegraph Printing

Co., 107 Ill. App. 3d 755, 488 N.E.2d 203 (1982). As the Wall Street

Journal noted,

“First Amendment advocates often warn of the subtle intimi-

dation of libel suits—the ‘chilling effect,’ as they call it. But

for small newspapers, there’s nothing subtle about it. As

the Telegraph case shows, a costly court fight can frighten

editors, discourage reporters, saddle a business with debt and

even drive families apart.”

Curley, How Libel Suit Sapped The Crusading Spirit Of a Small

Newspaper, Wa!! Street Journal, Sept. 29, 1983, p. 1, col. 1.

26

chose a new trial limited to punishment, does not solve the

problem, because the court below in its opinion approved

every instruction and action by the trial court except the

amount of punishment.

We do not argue here that there can never be punitive

damages on proper instructions as an adjunct to com-

pensatory damages in a libel case. What we do believe

this Court’s decisions clearly imply at a minimum is that

a windfall punitive award should not be recoverable by a

public figure merely on showing of “conscious disregard

for the rights of others” by mere preponderance of the

evidence. Instead, the requirement in most states—and

the requirement that this Court in speech cases always

has assumed applied **—is that the publisher must be

shown to have acted out of hatred or ill will toward the

plaintiff. That, this Court has recognized, is “the com-

mon-law standard of ‘malice’ generally required under

state tort law to support an award of punitive dam-

ages.” Cantrell v. Forest City Pub. Co., 419 U.S. 245,

252 (1974); accord, City of Newport v. Fact Concerts,

Inc., 453 U.S. 247, 267 (1981); Curtis Pub. Co. v. Butts,

388 U.S. 130, 161 (1967) (plurality opinion). That is

consistent with this Court’s holding that publication can-

not be punished except when the publisher has notice of

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

That is also consistent with this Court’s recognition in

Gertz v. Robert Welch, Inc., supra, that for private fig-

ures punitive damages require a greater showing of mis-

conduct than compensatory damages. The same should

be true for public figures—a greater showing of mis-

conduct for punitive damages should be required, i.e.,

hatred or ill will—or else the First Amendment’s protec-

tion as a practical matter is eviscerated.

29 Smith v. Wade, 103 S.Ct. 1625 (1983), which did not require a

higher degree of fault for punitive damages in interpreting a fed-

eral civil rights statute, was not a First Amendment case, and this

Court explicitly recognized that its holding did not apply to First

Amendment cases. See 103 S.Ct. at 1639 n.19.

27

The impact of the constitutional decision below is po-

tentially staggering. If, contrary to what this Court has

heretofore assumed, there need be no showing of ill will

before publishers can be punished for libel of public

figures, then the press can routinely expect to pay puni-

tive damages in nearly every libel action. And assuming

that the standard for public figures will apply also to

public officials, then public officials will be able not just

to obtain compensation, but to punish even those who

write about them without ill will—and something very

close to the law of seditious libel will have been restored,

with publishers publishing “on pain of libel judgments

virtually unlimited in amount.” New York Times Co. v.

Sullivan, 376 U.S. 254, 279 (1964).

C. The Issue Is One Which Has Not Been, But Should

Be, Decided By This Court.

Windfall punitive damages now are gyrating out of

control, destroying all certainty and altering the very

fabric of our legal system.* As one California Justice

recently remarked,

“T am fearful that the law of punitive damages as

it has developed in this state no longer serves any

public policy, or the legitimate interests of the un-

entitled recipients of its constantly accelerating

largess.” *

This Court too has recognized the anomalous nature of

punitive damages. In Smith v. Wade, 103 S.Ct. 1625

(1983), Mr. Justice Rehnquist joined by the Chief Justice

and Mr. Justice Powell in dissent reviewed the vehement

3° See, e.g., Ellis, Fairness and Efficiency in the Law of Punitive

Damages, 56 So. CAL. L. REv. 1, 2 (1982) (“Punitive damages are

being sought and awarded in a growing number of cases, often for

substantial amounts”) (footnote omitted); Curley, supra note 28.

31 Rosener V. Sears, Roebuck & Co., 110 Cal. App. 3d 740, 758,

168 Cal. Rptr. 237, 248 (1980), appeal dismissed, 450 U.S. 1051

(1981) (Elkington, J., concurring). See generally Wheeler, The

Constitutional Case for Reforming Punitive Damages Procedures.

69 Va. L. REV. 269, 279 (1983); Hill, Defamation and Privacy

Under the First Amendment, 76 CoLuM. L. REV. 1205, 1253 (1976).

28

criticisms of what one court called a “monstrous heresy.”

Fay v. Parker, 53 N.H. 342, 382 (1872); see 103 S.Ct.

at 1641. This Court expressed concern in Gertz v. Robert

Welch, Inc., 418 U.S. 323, 350 (1974), that “juries assess

punitive damages. in wholly unpredictable amounts bear-

ing no necessary relation to the harm caused.” In Smith

v. Wade, supra, this Court included a clear caution that

“we intimate no view on any First Amendment issues

[punitive damages] . . . may raise.” 103 S.Ct. at 1639

n.19. But the court below ignored that warning, because

it saw in this Court’s holdings only “a wide spectrum of

opinion concerning the propriety of punitive damages in

instances like the one before us.” P. 26a n.12, infra.

Other courts, by contrast, have doubted whether punitive

damages are allowable to public figures in libel cases at

all.*?

This Court never has approved punitive damages in a

case like the present one. Only once has this Court up-

held an award of punitive damages in a defamation case

involving a public figure at all. That was in Curtis Pub.

Co. v. Butts, 388 U.S. 130 (1967), a holding that did not

command any opinion of the Court. Butts, however, does

not support the decision below, because in Butts it was

explicity assumed that “punitive damages require a find-

ing of ‘ill will’... .” 388 U.S. at 161 (plurality opinion)

(emphasis supplied). Moreover, Mr. Justice Harlan, au-

thor of the plurality opinion in Butts, later came to advo-

cate close restrictions on punitive damages in defamation

cases, commenting that “matters are in flux” and that in

Butts “my earlier opinion painted with somewhat too

broad a brush.” Rosenbloom v. Metromedia, Inc., 403

U.S. 29, 72 n.3 (1971) (Harlan, J., dissenting). And

%2 B.g., the Second Circuit in Buckley v. Littell, 539 F.2d 882 (2d

Cir. 1976), cert. denied, 429 U.S. 1062 (1977): “It may be that

Gertz . . . and its underlying concern lest punitive damages be

used ‘selectively to punish expressions of unpopular views’ especially

with ‘the wholly unpredictable amounts’ that can be awarded will

ultimately lead the Supreme Court to hold that punitive damages

cannot constitutionally be awarded to a public figure.” 539 F.2d at

897.

29

Gertz v. Robert Welch, Inc., supra, limiting punitive dam-

ages in defamation actions by private figures, expressed

deep misgivings about punitive damages in other defama-

tion contexts as well. No decision of this Court has ever

approved an award of punitive damages to a public-figure

libel plaintiff where concededly hatred and ill will were

absent. On the contrary, this Court has held that speech

may not be punished by a statute “eliminating all men-

tal elements from the crime.” Smith v. California, supra,

361 U.S. at 155.

The present appeal captures in starkest form what

punitive damages against a publisher really are about.

The court below, by its order commanding that a new

trial be held for punitive damages alone, has directed

that a publisher stand trial civilly solely for the purpose

of determining punishment for a publication. This Court

has never approved, or even had occasion to approve, a

civil trial of a publisher solely for purposes of punish-

ment. Instead, it has repeatedly expressed warnings that

usually speech “is . . . inappropriate for penal control.”

Garrison V. Louisiana, 379 U.S. 64, 70 (1964). Certainly

there is no overwhelming interest of the state necessitat-

ing such a strange punitive proceeding. As this Court

observed in Gertz v. Robert Welch, Inc., supra, “the

States have no substantial interest in securing for plain-

tiffs such as this petitioner gratuitous awards of money

damages far in excess of any actual injury.” 418 U.S. at

349,

%3 California’s own policy, as reflected in its Penal Code, sets a

maximum fine for criminal libel of $5,000. CAL. PENAL CODE § 249.

Indeed, the court below earlier held that criminal punishment provi-

sion unconstitutional under the First and Fourteenth Amendments.

Eberle v. Municipal Court, 55 Cal. App. 3d 423, 127 Cal. Rptr. 594

(1976). A trial based on affirmance of the liability finding is inap-

propriate also because the court below recognized that the jury had

been motivated by passion or prejudice. P. 24a, infra. As a matter

of due process, that tainted the entire verdict. Minneapolis, St. P.

& S. Ste. M. Ry. Vv. Moquin, 288 U.S. 520 (1981).

30

If there is to be a trial of a publisher in which the

only issue is punishment, then although due process may

not necessarily require all the safeguards of a criminal

trial, see generally Mathews v. Eldridge, 424 U.S. 319,

334 (1976): United States v. Ward, 448 U.S. 242

(1980), it certainly should include at least the require-

ments of clear standards and a more demanding standard

of proof than mere preponderance of the evidence. Cf.

In re Winship, 397 U.S. 358 (1970) ; Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168-69 (1963). Here to punish

speech “the State has . . . eliminated the safeguards

of the criminal process.”” Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 69-70 (1963). Its interest in totally doing so

is too slight to overcome the constitutional policies of the

First, Fifth, Eighth ** and Fourteenth Amendments.

CONCLUSION

For the reasons stated, probable jurisdiction should

be noted.

Respectfully submitted,

JOHN G. KESTER *

HAROLD UNGAR

Hill Building

Washington, D.C. 20006

(202) 331-3069

Of Counsel: Attorneys for Appellant

WILLIAMS & CONNOLLY

Hill Building

Washington, D.C. 20006

* Counsel of Record

December 30, 1983

* It has been recognized that unjustified awards of punitive dam-

ages may also violate the Eighth Amendment's prohibition of

“excessive fines.” Toepleman Vv. United States, 263 F.2d 697, 700

(4th Cir.), cert. denied, 859 U.S. 989 (1959).

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