# Jurisdictional Statement — National Enquirer, Inc. v. Burnett

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1020%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1014

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1020%3A1. Public record. Not legal advice.