Petitioners Reply Brief — Scripps-Howard Broadcasting Co. v. Embers Supper Club, Inc.

ice - Supreme Court, US

= FILED |

MAY 24 1964

ANDER L. STEVAS.

No. 83-1653 oman

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

Scripps-HOWARD BROADCASTING COMPANY,

Petitioner,

We

EMBERS SUPPER CLUB, INC.,

Respondent.

On Writ Of Certiorari

To The Supreme Court Of Ohio

REPLY BRIEF OF PETITIONER

SCRIPPS-HOWARD BROADCASTING COMPANY

Bruce W. SANFORD

Counsel of Record

LEE LEVINE

BRIAN S. HARVEY

BAKER & HOSTETLER

818 Connecticut Ave., N. W.

Washington, D. C. 20006

(202) 861-1500

Counsel for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-6203

i

TABLE OF CONTENTS

1. Independent Review Of The Record Reveals That

Embers Adduced No Evidence At Trial That The

—— % K —— — ——„— „ „„ „„ „„

Independent Review Of The Record Reveals That

Embers Adduced No Evidence At Trial That The

News Reports At Issue Are Not Substantially Accu-

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. Independent Review Of The Record Reveals That

Embers Adduced No Evidence At Trial That It Suf-

fered Actual Injury To Reputation As A Proximate

Result Of Any Allegedly Defamatory Statement .

Independent Review Of The Record Reveals That

Embers Adduced No Evidence At Trial That The

News Reports At Issue Were Published With Any

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TABLE OF AUTHORITIES

CASES: Page

Bose Corp. v. Consumers Union, 52 U.S.L.W. 4513

(U.S. April 30, 1984) (No. 82-1246) ........ 1, passim

El! 8 Espanol v. NYM Corp., 521 F. 2d 737 (2d Cir. :

Gertz v. Robert Welch, Inc., 418 U.S. 323

T ͤ Kb 2, passim

Gwinn v. Washington Post Co., 211 F.2d 641 (D.C. Cir.

eee 4

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

„ boost tes ake 0 0 diukes 2, passim

St. Amant v. Thompson, 390 U.S. 727 (1968) ........ 9

State v. Thomas, 66 Ohio St. 2d 518, 423 N.E.2d 137

rr e 5

United States v. Brown, 501 F.2d 146 (9th Cir. 1974),

rev'd on other nds sub nom. United States v.

Nobles, 482 U.S. 225 (197/5)))))0!: cccccnes 5

OTHER AUTHORITIES:

Restatement (Second) of Torts (19777 4

Vem 4 enn eee c eke eee ce 1,4

IN THE

Supreme Court of ithe United States

OCTOBER TERM, 1983

No. 83-1653

ScCRIPPS*HOWARD BROADCASTING COMPANY,

Petitioner,

V.

EMBERS SUPPER CLUB, IN.,

Respondent.

On Writ Of Certiorari

To The Supreme Court Of Ohio

REPLY BRIEF OF PETITIONER

SCRIPPS-HOWARD BROADCASTING COMPANY

After the filing of the petition for certiorari in this defama-

tion action, this Court issued its decision in Bose Corp. v.

Consumers Union, 52 U.S.L.W. 4513 (U.S. April 30, 1984)

(No. 82-1246). The obvious relevance of Bose to the instant

litigation, and misstatements of the record contained in the

Brief in Opposition of Embers Supper Club, Inc. (“Embers”),

persuade petitioner Scripps-Howard Broadcasting Company

d/b/a Station WCPO- TV (“the Station”) respectfully to submit

this Reply Brief.“

In light of Bose, Embers’ contention that “facts proven be-

low” preclude this Court’s review in the instant case is plainly

in error. See Brief in Opposition at 7. On the contrary, Bose

reinforces the obligation of appellate courts, and especially of

' The corporate listing statement required by S. Ct. R. 28.1 and included in

the Station's petition remains currently accurate and reference is made

thereto.

2

this Court, to review the record to ensure that the con-

stitutional facts requisite to the imposition of defamation liabil-

ity have been established. Embers seeks no such scrutiny, but

instead a judicial shrug that would leave in place a decision that

curtails news coverage of the work of law enforcement offi-

cials.

In Bose, this Court reaffirmed that, in defamation actions,

appellate courts are obliged to undertake “ an independent

examination of the whole record’ in order to make sure ‘that the

judgment does not constitute a forbidden intrusion on the field

of free expression.’ 52 U. S. L. W. at 4517 (quoting New York

Times Co. v. Sullivan, 376 U.S. 254, 284-86 (1964)). The

requirement of independent appellate review “reflects a deep-

ly held conviction that judges—and particularly members of

this Court—must exercise such review in order to preserve

precious liberties established and ordained by the Constitu-

tion.” Id. at 4520 (emphasis added). Indeed, “judicial evalua-

tion of special facts that have beer deemed to have con-

stitutional significance,” id., is crucial in order to ensure that

finders of fact—including the judges of lower courts—will not

purport to impose defamation liability in derogation of the

First Amendment rights articulated in Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974), and other progeny of New York

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

The First Amendment requires, at the very least, that the

plaintiff establish in its case-in-chief, prima facie, each of the

constitutionally mandated elements of a defamation action set

forth in New York Times and Gertz. Thus, in order to with-

stand a motion for directed verdict, the plaintiff must establish |

facts demonstrating that:

(a) the statement complained of is defamatory of the plain-

tiff, New York Times Co. v. Sullivan, 376 U.S. at 288;

(b) the statement was published with some degree of cul-

pability, Gertz v. Robert Welch, Inc., 418 U.S. at 340;

(c) the statement is not substantially true, New York

Times Co. v. Sullivan, 376 U.S. at 279; Gertz v. Robert

Welch, Inc., 418 U.S. at 341; and

3

(d) the plaintiff was actually injured as a result of the

statement, Gertz v. Robert Welch, Inc., 418 U.S. at

349-50.

As this Court’s decisions make clear, these facts are of “con-

stitutional significance”; no judgment of defamation liability

can stand, consistent with the First Amendment, in their

absence.

In the instant case, the four-justice majority of the Ohio

Supreme Court failed to ensure that the First Amendment

rights articulated in New York Times and Gertz will be vindi-

cated in this litigation or in other defamation actions instituted

in Ohio. Despite the inability of Embers to produce evidence at

trial of fault, falsity, actual injury, or of any statement

defamatory of Embers, the Ohio Supreme Court simply as-

sumed that a prima facie case of defamation had been estab-

lished. At no stage of a defamation action is the need for

independent appellate review of the record in this Court more

compelling than upon reversal of a directed verdict against the

plaintiff at the close of his case-in-chief. For any rule requiring

the defendant, in rebuttal, to demonstrate the absence of a

prima facie case would effectively revive the common-law

presumptions of liability so forcefully rejected by this Court in

Gertz.

In a transparent attempt to mask the Ohio Supreme Court’s

disregard of this Court’s precedents, Embers distorts the rec-

ord and baldly suggests that the Ohio Supreme Court actually

found that the record evidenced a prima facie case. On the

contrary, the Ohio Supreme Court has ruled that the defend-

ant in an Ohio defamation action is presumed liable, that the

plaintiff need only produce evidence of publication, and that

the defendant must then prove the absence of the con-

r 4 mandated elements of actionable defamation—

, falsity, fault, actual injury, and a publication “of and

concerning” the plaintiff. This approach turns the rule of Gertz

and New York Times on its head. The Station urges that this

4

Court grant the petition and summarily reverse the judgment

of the Ohio Supreme Court, in accordance with S. Ct. R. 23. 1.“

1. Independent Review Of The Record Reveals That Embers

Adduced No Evidence At Trial That The Statements Com-

plained Of Are Defamatory Of Embers.

In New York Times Co. v. Sullivan, 376 U.S. at 288, this

Court held that unless the statements at issue in a defamation

action are shown to be defamatory “of and concerning” the

plaintiff, the claim is “constitutionally defective.” Accord, 3

Restatement (Second) of Torts § 564, comment g (1977). In the

instant case, an independent review of the record reveals no

evidence that either news report at issue was, or possibly could

be, understood by any third party as defamatory of Embers.

The singular contention of Embers’ sole stockholder that his

own corporation was defamed—the only evidence on the issue

presented by Embers—hardly establishes that any third per-

son saw and heard the news reports and considered them

defamatory of Embers. Indeed, neither report is in any sense

defamatory of Embers, since neither accuses Embers or any-

one else of any wrongdoing but rather states that the Embers

Supper Club was the scene of improper activity. Such news

reports do not satisfy the First Amendment mandate of New

York Times that, to be actionable, the statements complained

of must be defamatory of the plaintiff.’

Thus, even if the July 21 news report had stated, as Embers

claims, that “Elmwood Place gamblers” were operating at the

Embers Supper Club, it would not be defamatory of Embers.‘ ’

To expedite an independent review of the record in this Court, the

Station has requested that the record below be certified and made available

to the Court pursuant to S.Ct. R. 19.1.

Accord, El Meson Espanol v. NYM Corp., 521 F.2d 737 (2d Cir. 1975);

Gwinn v. Washington Post Co., 211 F.2d 641 (D.C. Cir. 1964) (per curiam).

‘Contrary to Embers’ contentions, the July 21 news report does not

charge that Elmwood Place gamblers had set up operations at the Embers

Supper Club. That report states, in its entirety:

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this afternoon, and seized racing forms, betting slips, and

.

5

Moreover, Embers' assertion that the July 23 news report

“charged the Embers with being an area bookie” simply aban-

dons credulity. Brief in Opposition at 5. This tortured reading

of plain English, which was rejected by even the Ohio Supreme

Court, can hardly serve to support Embers’ claims.

Because of their lack of defamatory reference to Embers,

each news report at issue “fits easily within the breathing

space that gives life to the First Amendment.” Bose Corp. v.

Consumers Union, 52 U.S.L.W. at 4521. The cavalier dis-

regard of this constitutional mandate by four justices of the

other gambling hrenalia (sic). Police said they acted ona tip, that

handbook operators from Elmwood Place 1 set up operations there.

So far, no arre(sts] have been made; the Club itself remains open.

Record, Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co.,

No. 83-102, at 578 (Ohio Jan. 11, 1984) (hereinafter cited as R.] (emphasis

added). Embers produced no evidence that police did not say they acted on

such a tip, and in fact Embers’ own evidence demonstrates that police were

told, as Embers’ sole shareholder admitted at trial, that if the “bookie at the

| Embers” failed to pay his gambling debts, three men would “blow the place

up.” R. 373-75, 592. Plainly, the Ohio Supreme Court’s decision, if not

ence of crime or the comprehensibility of a society ordered by law.

* Embers understandably disregards the text of the July 23 news report,

which states:

this

(9th Cir. 1974), rev'd on other grounds sub nom. United States v. Nobles, 422

U.S. 225 (1975); State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981).

6

Ohio Supreme Court alone warrants summary reversal of its

judgment.

2. Independent Review Of The Record Reveals That Embers

Adduced No Evidence At Trial That The News Reports At

Issue Are Not Substantially Accurate.

This Court’s decisions make clear that the First Amendment

forbids the imposition of defamation liability for publication of

truth. See, e. g., Gertz v. Robert Welck, Inc., 418 U.S. at

340-41; New York Times Co. v. Sullivan, 376 U.S. at 271-79.

By refusing to require Embers to produce evidence of falsity in

its case-in-chief, the Ohio Supreme Court has reinstated the

common law rule of presumed falsity—a rule that this Court

has squarely repudiated. Embers must resort to gross distor-

tions of the record in order to claim falsity in post hoc justifica-

tion of the Ohio Supreme Court’s decision. Its claim that “(nJo

gambling operations of any type were being conducted on the

premises,” Brief in Opposition at 4, is an outright fiction that

cannot overcome the reality of the record below. Daniel Com-

er, Embers’ sole stockholder, himself admitted at trial that he

often had placed illegal bets, and that he would have the

Embers’ “cook” piace bets for him. R. 395-400. Comer further

admitted at trial that he had been told by a customer, as had the

police, that if the “bookie at the Embers” did not pay off his

gambling debts, three men would “blow the place up.” R.

373-75, 592. Comer admitted that he “knew of the bookmaking

activities,” R. 592, but had told the customer “not to worry

about it,” R. 375. Moreover, it is undisputed that the raid had

in fact occurred and that gambling equipment had in fact been

seized by police at the Club. And, while there was testimony

that no employees of Embers actually lived in Elmwood Place,

there is no evidence that Elmwood Place gamblers had not set

up operations at the Club. R. 368-10.

On this record, Eber centhations of M Gade 0

contrivance which, if given the imprimatur of the Ohio Su-

Moreover, contrary to Embers’ assertion, there is not a shred of evidence

that the Station’s employees “admitted the correctness” of the so-called

“expert's opinion. Brief in Opposition at 5.

7

preme Court and this Court, can only serve to punish the

Station for accurately informing the public about the probable

cause for a police raid.

3. Independent Review Of The Record Reveals That Embers

Adduced No Evidence At Trial That It Suffered Actual

Injury To Reputation As A Proximate Result Of Any

Allegedly Defamatory Statement.

This Court’s decision in Gertz precludes defamation liability

unless the plaintiff demonstrates that it sustained “actual inju-

ry” as a result of the statements at issue. 418 U.S. at 349. This

“constitutional command of the First Amendment” requires

that any award of damages for defamation “must be supported

by competent evidence concerning the injury.” Id. at 349-50.

An independent review of the record reveals that the trial

court acted properly in striking Embers’ conjectures as to

damages on the ground that they were too speculative to go to

the jury. Not only is there no credible evidence of any decline in

Embers’ business due to the news reports, but the raid itself—

and the admitted knowledge of Embers’ customers that the

place would be “blown up” if Embers’ “bookie” did not pay his

gambling debts—were plainly the cause of any possible busi-

ness misfortune suffered by Embers. The First Amendment

prohibits presumed damages, and the decision of the Ohio

Supreme Court should be summarily reversed on this ground

as well.

4. Independent Review Of The Record Reveals That Embers

Adduced No Evidence At Trial That The News Reports At

Issue Were Published With Any Degree Of Culpability.

In Bose, this Court confirmed that independent appellate

review is necessary in order to ensure that liability for defama-

tion is limited “to instances where some degree of culpability is

present.” 52 U.S.L.W. at 4521. This limitation is crucial “in

order to eliminate the risk of undue self-censorship and the

suppression of truthful material.” /d. In the instant case, Em-

bers failed to demonstrate at trial that the Station was at fault

in any sense in broadcasting the news reports at issue. As an

independent review readily reveals, there is no evidence in the

ae

8

record that either news report was prepared in derogation of

accepted standards of journalism as practiced every day by

professional broadcasters, including employees of the Station.

By ignoring this crucial omission in Embers’ prima facie case,

and requiring the Station to prove the absence of fault, the

Ohio Supreme Court has violated the command of the First

Amendment articulated in Gertz v. Robert Welch, Inc., 418

U.S. at 340.

Indeed, Embers’ failure to produce evidence of fault re-

sulted from Embers’ own tactical decision at trial to decline to

call relevant witnesses. Embers had over nine years to prepare

for trial, and it could easily have called police officials, as

witnesses on its behalf, to testify, if they could, that no Station

employee verified with police the reported raid at the Club.

Similarly, Embers could have called the Station employee

responsible for monitoring the police radio and gathering the

information contained in the news reports at issue to testify, if

he could, that he did not contact the police and that the police

did not refer to Elmwood Place in their report of the raid.

Embers deliberately chose neither of these strategies and the

record is, accordingly, wholly devoid of evidence of fault. In-

deed, under the Ohio Supreme Court’s approach, Embers may

well have had a stronger case of fault had it elicited no testi-

mony at all on the issue.“

° Embers continues tn assert that the Station was somehow at fault in not

contacting an employee of Embers prior to the broadcasts. This contention is

absurd. There was no need to contact anyone at Embers because neither

Embers nor anyone else was accused in the news reports at issue of engaging

in any wrongful conduct—or, for that matter, of engaging in any type of

conduct at all. See Gertz v. Robert Welch, Inc., 418 U.S. at 348. Indeed,

Embers’ penchant for misstatement conveniently ignores its own failure to

contact the Station after either of the broadcasts seeking correction,

clarification, or retraction of the news reports. Embers also claims that the

first sentence of the July 23 report, “Business went sour for area bookies,”

was “a product of the author’s imagination.” Brief in Opposition at 5-6. The

record, however, is clear that these were words of Embers’ counsel, not of

the witness, who actually testified, “I don’t like the connotation of ‘imagina-

tion. R. 63. The witness’s clarification is understandable, for every commu-

nication is, to some extent, a “product of the author’s imagination.” This

hardly means that the communication is a tota fabrication, in the sense this

92 r 8

n

9

CONCLUSION

The news reports at issue did no more than accurately in-

form the public about law enforcement activity. As such, they

epitomize one of the most commonplace services provided by

local television news. By failing to require the defamation

plaintiff to establish a prima facie case, the Ohio Supreme

Court’s decision erects for Ohio news media a formidable

obstacle to reporting on law enforcement activity. If a commu-

nity television station must bear the burden—through years of

costly litigation—of a defamation plaintiff's own inability to

establish a prima facie case, it often will choose simply to omit

or truncate coverage of criminal investigations and law

enforcement. It is precisely for this reason that Gertz and New

York Times require the defamation plaintiff—surely no less

than any other tort plaintiff—to prove its case at trial, prima

facie, before the defendant need go forward. After the plaintiff

has had every opportunity to obtain proof and to produce it at

trial, but has failed to do so, the case must be weeded out as

meritless. The First Amendment’s requirement that a defama-

tion plaintiff prove its case—by producing evidence of fault,

falsity, actual injury, and defamatory reference to the

plaintiff—demands no less.

Respectfully submitted,

Bruce W. SANFORD

Counsel of Record

LEE LEVINE

Brian S. HARVEY

BAkER & HOSTETLER

818 Connecticut Ave., N. W.