Amicus Curiae Brief — Philadelphia Newspapers, Inc. v. Hepps

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

VEINS VUUTL, U.de |

2 FILED

No. 84-1491 AUG 19 1985

—_—— JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

PHILADELPHIA NEWSPAPERS, INC., et al.,

. Appellants,

MAURICE S. HEPPsS, et al.,

Appellees.

On Appeal from the Supreme Court of Pennsylvania

BRIEF AMICUS CURIAE OF PRINT

AND BROADCAST MEDIA AND ORGANIZATIONS +

IN SUPPORT OF APPELLANTS

E. BARRETT PRETTYMAN, JR.*

JAMES G. MIDDLEBROOKS

HOGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

DAN PAUL

FRANKLIN G. BURT

STEVEN M. KAMP

PAUL & BURT

13th Floor

100 South Biscayne Boulevard

Miami, Florida 33131

(305) 371-2000

Attorneys for Print and

Broadcast Media and

Organizations

e...

handled

—

a _—-«

—

——

Fe)

fhe

* Counsel of Record

+ Amici and their counsel are listed in Appendix A to this Brief.

WIL@ON - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 “oe

—_—_ ~—

TABLE OF CONTENTS

Page

I i ii

I a scieannsapliielaiane 1

STATEMENT OF THE CASE......W..2....2.....-..c.eescscceoeese 2

SUMMARY OF ARGUMENT ................. srehahsencibiaialibonasiii 2

ae EES RSLS SE a AER AL SO ROR 4

IEEE diivschcitpisiunilih Alhvantiaterelicdncdaniebeeebuaipoastiabasnainasean 27

IN tibia ceeeecnsiisdsibsaibaininnciiniatcannceconliiininniihcnieieg apache la

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

(1976) ....... OST SS ET Ree ee a 21

Addington v. Texas, 441 U.S. 418 (1979) ................. 5

Agriss v. Roadway Express, Inc., 483 A.2d 456

EE SAREE Ne 11

Bennett v. New Jersey, 53 U.S.L.W. 4337 (U.S.

I ccetemmnaseinaee 5

Birl v. Philadelphia Electric Co., 402 Pa. 297, 167

FE ES A 10

Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677

ER ORREE IE CES SEIT Sey Sie Fi et 11

Brinegar v. United States, 338 U.S. 160 (1949)... 5

Brophy v. Philadelphia Newspapers, Inc., 281 Pa.

Super. 588, 422 A.2d 625 (1980) ......................... 11-12

Carroll v. United States, 267 U.S. 132 (1925) ........ 5

Chapski v. Copley Press, 92 Ill.2d 344, 442 N.E.2d

ft & 5 SL, Fn eNneNe 10

Dairy Stores, Inc. v. Sentinel Pub. Co., 191 N.J.

Super. 202, 465 A.2d 953 (1983), aff’d, 198 N.J.

Super. 19, 486 A.2d 344 (1985) —...000 20-21

Garrison Vv. Louisiana, 379 U.S. 64 (1964) ............ 4

Gazette, Inc. v. Harris, 325 S.E.2d 713 (Va.), cert.

denied, 105 S. Ct. 3513 & 3528 (1985) 0... 6

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ..2-6, 16,

Greenbelt Coop. Pub. Ass’n v. Bresler, 398 U.S. ¢

SSIES ey BLA Se OO Oar ee 15, 17

Herbert v. Lando, 441 U.S. 153 (1979) .................... 9

Herrmann v. Newark Morning Ledger Co., 48 N.J.

Super. 420, 138 A.2d 61, aff’d on rehearing, 49

N.J. Super. 551, 140 A.2d 529 (1958)... 14

Lal v. CBS, Inc., 551 F. Supp. 356 (E.D. Pa.

1982), aff'd, 726 F.2d 97 (3d Cir. 1984)... 26

Lawrence Vv. Bauer Pub. & Printing Ltd., 89 N.J.

451, 446 A.2d 469, cert. denied, 459 U.S. 999

(ERIS ASM EERE 55a a 25

Linn Vv. United Plant Guard Workers, 383 U.S. 58

ESSA GRATES ESE Cpa tn Soe 24

iii

TABLE OF AUTHORITIES—Continued

Page

MacLeod vy. Tribune Pub. Co., 52 Cal. 2d 536, 343

fg IIR FRR eee eee Ree ee Se oe 14, 16

Madison v. Bolton, 234 La. $97, 102 So.2d 433

ES A ee ee eT Ne 13

Martin v. Griffin Television, Inc., 549 P.2d 85

a eeaietandl 7

Medico v. Time, Inc., 643 F.2d 134 (3d Cir.), cert.

es Me ec I CD veeiteeteectectiettcctaesens 25-26

Memphis Pub. Co. v. Nichols, 569 S.W.2d 412

I i 13

Miami Herald Pub. Co. v. Ane, 423 So.2d 376 (Fla.

Dist. Ct. App. 1982), aff’d, 458 So.2d 239 (Fla.

| RE We nN ren ee Rees PET OSS 6

New York Times v. Sullivan, 376 U.S. 254 (1964) ..4-6, 21,

Newell v. Field Enterprises, 91 Ill. App. 3d 735,

415 N.E.2d 434, 47 Ill. Dec, 429 (1980), modified

in Chapski v. Copley Press, 92 Ill. 2d 344, 442

N.E.2d 195, 65 Ill. Dec. 884 (1982) _.....00000 10

Peabody v. Barham, 52 Cal. App. 2d 581, 126 P.2d

668 (1942), modified in MacLeod V. Tribune Pub.

Co., 52 Cal.2d 536, 348 P.2d 36 (1959)... 16

Raffensberger v. Moran, 485 A.2d 447 (Pa. Super.

gE SI LN SAR ie 12

Rutt v. Bethlehems’ Globe Pub. Co., 484 A.2d 72

fa re eee aoe 11

S.J. Groves & Sons Co. v. Ohio Turnpike Comm’n,

315 F.2d 235 (6th Cir.), cert. denied, 375 U.S.

RL aE a 14

Sarkees v. Warner-West Corp., 349 Pa. 365, 37

GE I I ceecerehiichal Ni ite 11

Schaefer v. Lynch, 406 So.2d 185 (La. 1981) ....... 13

Speiser v. Randall, 357 U.S. 518 (1958)... 4

Strada v. Connecticut Newspapers, Inc., 193 Conn.

Seay Gee Gee Seem Cas 11

Taskett v. King Broadcasting Co., 86 Wash. 2d 439,

a ii i 13

Tavoulareas v. Washington Post Co., 759 F.2d 90

(D.C. Cir. 1985), reh’g granted, June 11, 1985.. 18

Time, Inc. v. Firestone, 424 U.S. 448 (1976)... 17, 19

TABLE OF AUTHORITIES—Continued

Page

United States v. Valenzuelo-Bernal, 458 U.S. 858

eR Tilak RIA Seen Keel) <b ne aoe 5

Vitteck v. Washington Broadcasting Co., 256 Pa.

Super. 427, 389 A.2d 1197 (1978) _ ...................... 10

Wilson v. Garcia, 53 U.S.L.W. 4481 (U.S. April 17,

| ig SII LS CSE aR a a ls RO 5

Wilson v. Scripps-Howard Broadcasting Co., 642.

F.2d 371 (6th Cir.), cert. dismissed pursuant to

Rule 53, 454 U.S. 1180 (1981) ............................... 18

Zartman v. Lehigh County H::mane Soc’y, 482

Pp fF ERR 12

Constitutional Provision and Statutes

ee eee ees 2, 4-5, 10, 15, 20, 27

RI TE PEELS TOT Ae Se 20

Ariz. Rev. Stat. § 12-2287 (1981) ............................... 20

Ark. Stat. Ann. § 48-917 (1977) ................................. 20

ea er 20

Del. Code Ann. tit. 10, §§ 4320-4326 _...................... 20

Ill. Rev. Stat. ch. 110, § 8-901 et seq. _.....................-.-. 20

pa a I 20

le a A a 20

PM | Ec 20

Md. Cts. & Jud. Proc. Code Ann. § 9-112 —................. 20

FS Sk 20

Minn. Stat. §§ 595.021-595.025 (1981)... 20

Mont. Code Ann. §§ 26-1-901 et seq. -........................-- 20

Neb. Rev. Stat. §§ 20-144 - 20-147 (1977) ............. 20

pa 20

ee FN Fee aneee 20

N.M. Stat. Ann. § 38-6-7 (1978) ................................. 20

ke NE 20

N.D. Comt. Code § $1-01-O06.2 —.................-.-2..22...2200--- 20

Ohio Rev. Code Ann. § 2739.12 (Page 1981) -............ 20

| a 20

Or. Rev. Stat. §§ 44.510-44.540 ...... 20

42 Pa. Cons. Stat. Ann. § 5942 _................................... 20

mein 20

Tenn. Code Ann. § 24-1-206 ......................................... 20

TABLE OF AUTHORITIES—Continued

Franklin, What Does “Negligence” Mean in Def-

Miscellaneous Page

Anderson, Libel and Press Self-Censorship, 53

pe AT aa eR ee ETE 9, 23

Anderson & Murdock, Effects of Communications

Law Decisions on Daily Newspaper Editors, 58

pi (CO Ft NE a cee 26

Bloom, Proof of Fault in Media Defamation Liti-

gation, 38 Vand. L. Rev. 247 (1985) -.....000.00.0.... 26

Brill, Inside the Jury Room at the Washington

Post Libel Trial, Am. Law., Nov. 1982 _.............. 17-18

Collins & Drushal, The Reaction of the State

Courts to Gertz v. Robert Welch, Inc., 28 Case

W. Res. L. Rev. 306 (1978) ................................... 6

Curley, How Libel Suit Sapped The Crusading

Spirit Of A Small Newspaper, Wall St. J.,

Sept. 29, 1988 ................ RES 5-02 ER 22

L. Eldredge, Law of Defamation (1978) ................. 25

Franklin, Good Names and Bad Law: A Critique

of Libel Law and a Proposal, 18 U.S.F. L. Rev.

Te il 9, 17, 24

Franklin, Suing the Media for Libel: A Litigation

Study, 1981 Am. B. Found. Research J. 795........ 6

amation Cases?, 6 Comm/Ent L.J. 259 (1984) ..6, 21, 26

Franklin & Bussel, The Plaintiff’s Burden in Def-

amation: Awareness and Falsity, 25 Wm. &

Friendly, Investigative Journalism Is Found Shift-

ing Goals, N.Y. Times, Aug. 23, 1983 _..............

Goodale, The Tavoulareas Jury Verdict Provides

a Chilling Lesson for the Press, 1 Com. Law. 6

A Oe ca ce

Keeton, Defamation and Freedom of the Press, 54

_ 2s ¢. eee

Kupferberg, Libel Fever, Colum. Journalism Rev.,

A A Sk he ea

LaRue, Living With Gertz: A Practical Look at

Constitutional Libel Standards, 67 Va. L. Rev.

TABLE OF AUTHORITIES—Continued

Libel Defense Resource Center Bulletin No. 6

) Se ae lies

Libel Defense Resource Center Bulletin No. 11

(1984) ROR ee OK: ee te eee

Libel Defense Resource Center Bulletin No. 12

SET insteiniatemnan Liss

Libel Defense Resource Center Bulletin No. 14

REI cisccernsinstslichickodesochsttinssniibashqanonsaindetaieesetinicasabubiamninaee

Massing, The libel chill: How cold is it out there?,

Colum. Journalism Rev., May/June 1986 ..........

E. Morgan, Some Problems of Proof Under the

Anglo-American System of Litigation (1956)...

Restatement (Second) of Torts § 578 (1976)........

Riley, Fighting Back: What Redress Media Have

Against Frivolous Libel Suits, 59 Journalism Q.

OM _, SR eo SS

R. Sack, Libel, Slander, and Related Problems

NR eS Ae ERE TT a Sn ee

Smith, The Rising Tide of Libel Litigation: Im-

plications of the Gertz Negligence Rule, 44

ee RR, Ree

Smolla, Let the Author Beware: The Rejuvena-

tion of the American Law of Libel, 132 U. Pa.

Ba, Ri Be MI ibaa liicieadecebniesipiedilibaibeliipatiyaibeieines

Spiegel, Defamation by Implication—In the Con-

fidential Manner, 29 S. Cal. L. Rev. 306 (1956)..

Taylor, Libel Law: A Tough Puzzle For Trial Jury,

Ss Ss CT UN IID ee Dicesenabaicstebbcbedbeetigtiienisccs

L. Tribe, American Constitutional Law (1978)....

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1491

PHILADELPHIA NEWSPAPERS, INC., et al.,

\ . Appellants,

MAURICE S. HEPPs, et al.,

Appellees.

On Appeal from the Supreme Court of Pennsylvania

BRIEF AMICUS CURIAE OF PRINT

AND BROADCAST MEDIA AND ORGANIZATIONS

IN SUPPORT OF APPELLANTS

INTEREST OF AMICI

The amici curiae submitting this brief include a wide

variety of entities representing all forms of the news

media—print, radio, and television. They range in size

from large broadcasting and print organizations, such as

the American Broadcasting Company, the Associated

Press, and Cable News Network, Inc., to a small weekly

newspaper (T'he Highlander, published by Highland Pub-

lishing Company in Marble Falls, Texas) with a circula-

tion of 9,561. The amici obviously have a direct interest

in the outcome of this appeal, which will determine

whether states can constitutionally place the burden of

proving truth on a m« lia defendant in a private person

case involving public issues.

As we demonstrate in this brief, the problems faced

by the media in this type of litigation are not only legal

in nature but extremely practical—problems which amici

must face every day in the newsroom and in the court-

room. Because the Appellants and the other amici have

concentrated primarily on the legal issues involve’ this

brief focuses on those practical and pragmatic consic'era-

tions which might not otherwise come to the Court’s

attention. And since the public is not represented in

this appeal, amici further demonstrate that the ultimate

ramifications of the concerns expressed here will be that

the uninhibited flow of information to the public will

be threatened—an interest at the core of the First Amend-

ment.

The parties have consented to the filing of this Brief.

STATEMENT OF THE CASE

We adopt the Statement of the Case set forth by Ap-

pellants in their Brief, as supplemented by certain facts

added in the Argument below.

SUMMARY OF ARGUMENT

In addition to the legal principles set forth by Appel-

lants and the other amici that argue persuasively for

placing the burden of proof as to falsity on the plaintiff

in a media case involving public issues, there are strong

practical considerations calling for the same result.

The limited protections envisaged by Gertz v. Robert

Welch, Inc., 418 U.S. 323 (1974), have proven illusory.

Most states have adopted negligence standards for de-

termining fault, and the ground rules for establishing

negligence are so loose that juries can and do assume

that fault flows from falsity. Under the rule adopted

below—that the burden of proving truth is on the de-

fendant—there is, in fact, a presumption of falsity. This

is because: jurors are usually instructed, as they were

in this case, (a) that they can find fault only after find-

ing falsity; and (b) that they can consider a wide-rang-

ing number of elements in determining fault. Thus, in

practice, jurors are allowed to apply a rule of strict lia-

bility once they may presume that a defamatory publica-

tion is false. The situation is particularly egregious be-

cause defamation is defined in extremely broad terms in

most states. Therefore, any media reporting “bad news”

is susceptible to the enormous expense of time and re-

sources in defending a defamation action, with the added

threat of not being able to prove to a jury’s satisfaction

that its statements were true.

Under the rule below, it will be no simple matter for

a media defendant to establish “truth,” because many

states in private person cases (as opposed to public offi-

cial/figure cases) have imposed on the defendant the

burden of proving all adverse implications, inferences

and innuendos arising out of the reporting of true facts.

In this case, for example, the trial court told the jury five

times that the statements published by defendants, even

if literally true, could be held defamatory if they con-

veyed a false and defamat-ry meaning by implication

and innuendo. This poses enormous problems for the

press, and especially for small media that do not have

the benefit of oversight counsel, in determining not only

what some people may take a publication to mean, but

how the truth of all of these inferences can be proven in

court. The myriad questions of law that are involved in

proof—particularly proof of inferences—will force many

rer to forego the publication of important, newsworthy

stories.

Juries are already confused by libel instructions, and

the application of the rule below will add ~ new element

of confusion. Inevitably, the facts as to falsity will bear

on the facts as to fault, and to tell a jury that one party

has the burden as to falsity but that the other bears it

as to fault is to create an unrealistic expectation of what

a jury can absorb and apply. Moreover, in a close case

the ;'!acement of the burden of proof may be determina-

tive, for by allocating that burden the trial court effec-

tively decides each issue of fact which the jury is unable

to decide. Thus, as a practical matter the result in cer-

tain cases is to impose liability without fault.

There is bound to be a resulting “chilling effect” on

the press if the burden of proof as to truth is on the

defendant. This self-censorship will be undertaken by

both large and small media, although in some instances

for different reasons. Even where a publisher is con-

fident of the truth of the story, the risk of not being able

to carry the burden of proving truth, combined with the

already enormous costs of litigation, will often dissuade

the media from publication. When this occurs—and it

will if the lower court’s ruling is affirmed—the ultimate

loser will be the public.

ARGUMENT

Appellants and other amici curiae deal in some detail

with the case law applicable to this lawsuit, from New

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

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

its progeny. They correctly argue that imposing the

burden of proving truth on the media defendant in a

private person case involving public issues violates both

the First Amendment and due process of law. They set

forth the legal principles from a great variety of cases,

with special emphasis on Garrison v. Louisiana, 379 U.S.

64 (1964), and Speiser v. Randall, 357 U.S. 513 (1958).

They further point out that falsity is an essential ele-

ment of a defamation action and that there are strong

reasons for not assuming that defamatory speech is false.

Finally, they assert that it is not unfair to place the

burden of proving falsity on the plaintiff, that there are

many analogous situations in the law where plaintiffs

in fact carry that burden, and that the effect of the

contrary ruling below penalizes fully protected truthful

speech.

What has not been stressed, however, are some of the

important practical aspects of how the Pennsylvania rule

(i.e., placing the burden of proving truth on the defend-

ant), if approved by this Court, will actually work in

the state and federal courts. When these pragmatic con-

siderations are taken into account,’ it becomes even more

apparent that the operation of the rule will result in

an undue and unfair burden on the press, as well as a

self-censorship that is incompatible with the free and

uninhibited flow of information to the public. Such re-

sults are contrary to the purpose and protections of the

First Amendment and should not be approved by this

Court.

1. The Negligence Standard Offers Little Protection.

Gertz, insofar as relevant here, established two basic

rules affecting private person cases in which public is-

sues are discussed by the media: (1) the states are not

bound hy the actual malice standard, but instead are free

to adopt lesser standards of liability; however, (2) the

states may not impose liability without fault. Through

these two rulings, the Court recognized that in order to

preserve a free flow of information to the public, the

media must be afforded some degree of liability protec-

tion, though not necessarily the degree accorded under

the higher Suliivan standard. The Court apparently as-

sumed that by requiring at least negligence to be shown

and by allowing liability to be imposed only for false

speech, the press and the First Amendment would re-

ceive all the protection needed.

1In a variety of situations, the Court has taken practical con-

siderations into account in reaching its judgments. E.g., Wilson

v. Garcia, 53 U.S.L.W. 4481, 4484 (U.S. April 17, 1985); Bennett

v. New Jersey, 583 U.S L.W. 4337, 43839 (U.S. March 19, 1985);

United States v. Valenzuela-Bernal, 458 U.S. 858, 865 (1982);

Addington v. Texas, 441 U.S. 418, 427-431 (1979); Brinegar v.

United States, 338 U.S. 160, 175 (1949); Carroll v. United States,

267 U.S. 182, 153 (1925).

In actual practice, however, the limited Gertz protec-

tions have proven to be illusory, and if the additional

burden of establishing truthfulness is now to be imposed

on the media defendant, the goals sought by the Court in

Gertz will be defeated altogether.

In the eleven years since Gertz, at least three-fifths

of the states have responded by adopting some degree of

negligence as the proper standard for fault, most of the

remaining states have not definitively ruled on the

matter, and only four have required that actual malice

be shown.’ Not surprisingly, due to the lesscr protec-

tions afforded them, Gertz defendants have fared more

poorly than Sullivan defendants at the hands of juries

and judges.* What is more disturbing, however, is that

negligence standards adopted pursuant to Gertz have

proven to provide little protection at all to media defend-

ants, for in practice jurors can and do impose liability

on the media where no negligence exists.‘ The reason

for this, as we demonstrate below, is that the ground

rules for determining negligence are so loose that jurors

often assume that negligence necessarily flows from a

2 See Miami Herald Pub. Co. v. Ane, 423 So.2d 376, 385-386 n. 3

(Fla. Dist. Ct. App. 1982), aff’d, 458 So.2d 239 (Fla. 1984), and

cases there cited; Gazette, Ind. v. Harris, 325 S.E.2d 713, 726 n. 3

(Va. 1985), cert. denied, 105 S.Ct. 3518 & 3528 (1985), and cases

there cited; Franklin, What Does “Negligence” Mean in Defama-

tion Cases?, 6 Comm/Ent L. J. 259, 264-265 (1984): Collins &

Drushal, The Reaction of the State Courts to Gertz v. Robert Welch,

Inc., 28 Case W. Res. L. Rev. 306 (1978).

% Several studies have demonstrated this to be so. Franklin,

Suing the Media for Libel: A Litigation Study, 1981 Am. B. Found.

Research J. 795, 824-825; Libel Defense Resource Center (“LLDRC”’)

Bulletin No. 6, 41-43 (1983, ; LDRC Bulletin No. 11, 20-21 (1984) ;

LDRC Bulletin No. 12, 7 (1984); Franklin, supra note 2, at 272-

281. “This failure [of the negligence standard established in Gertz]

is so clear and so serious that it alone should justify renewing the

search for acceptable standards in libel cases.” Jd. at 281.

4See generally L. Tribe, American Constitutional Law 646

(1978) ; Franklin, supra note 2, at 272-273.

finding that the defendant has published a false def-

amation, and, of course, under the Pennsylvania rule,

falsity is presumed.

Normally, instructions to the jury begin with the

issue of truth or falsity, because if the statement is true,

a verdict must be returned for the defendant.’ Hence, in

practice, jurors never reach the question of negligence

unless they have determined a communication to be false.

Moreover, negligence, and therefore fault, are defined

to the jury in terms of falsity. An example is this very

case, where the trial court did not instruct on the issue

of fault until it had first instructed on the issue of

falsity, and where the jurors were told not to decide

fault until they had decided falsity. Thus, the court’s

instruction was that if the contested statements were

found to be true, the defendant was not liable (JA A99),

but if the statements were found to be false, “you will

then consider the seventh element of the action in libel—

the element of fault on the part of the defendants.” JA

A100. On that “element of fault,” the jurors were

allowed to consider a wide-ranging number of elements,

including “whether a reasonably prudent person would

have acted as the defendants did in investigating and

publishing the articles, given the circumstances of this

ease.” JA Al104-A105. They were further told that

“t]he thoroughness of the check that a reasonable per-

son would make before he published the article may

vary with the play and interplay of these factors.” JA

A105.

In other words, the jury was free to determine the

negligence issue based on very little more than a finding

of falsity. Under instructions like these, it is all too easy

for a jury to conclude that falsity necessarily denotes

negligence—or, stated conversely, that absent negligence,

5 See, e.g., Martin v. Griffin Television, Inc., 549 P.2d 85, 94

(Okla. 1976).

there could have been no false publication. Under such

circumstances, a jury will likely reason that regardless

of what was done, the error would have been caught and

corrected if something more had been done. And the

fact that something more should have been done follows

naturally from the fact that something false was pub-

lished. This line of reasoning in practice amounts to

a rule of strict liability once the jury is allowed to pre-

sume that a defamatory publication was false.

This predisposition toward fault-finding would not be

so serious if appellate courts were capable of ferreting

out instances of over-zealousness in regard to negligence

and were prepared to reverse on that ground. However,

one study of such appellate reviews disclosed but a

single reported case in which a finding of negligence

was even a factor in reversal and found not one case

tried under a negligence standard in which a verdict

or judgment for the plaintiff was rever-ed solely because

the finding of negligence was erroneous.” The same was

found true in a study of cases involving defense motions

for summary judgment—negligence is such a loose stand-

ard that virtually no motions are won on this issue.’

If the negligence standard as interpreted by the lower

courts in substance adds essentially nothing to the case,

and a finding of negligence is virtually unreviewable,

a state has, as a practical matter, imposed a standard

of strict liability. A defamatory statement that is pre-

sumed to be false thus subjects the defendant to liability

without any further proof. However, where the burden

is on the plaintiff to prove falsity, there is at least a

requirement of something more than a defamation and

the filing of a complaint before a recovery is allowed

against a media defendant that is unable, for whatever

6 LDRC Bulletin No. 6 at 42-43.

7 LDRC Bulletin No. 12 at 7.

reason,® to prove truth. Shifting the burden on the issue

of truth to the defendant not only exacerbates the prac-

tical imposition of strict liability but eliminates all con-

straints against groundless suits.

It is a common misconception that all libel plaintiffs

sue for compensation for harm incurred or to clear their

names. In fact, many sue for revenge, to harass, to in-

timidate, to obviate future unfavorable stories, or to

recover a “windfall.”® It has been estimated that as

many as half of all defamation suits are “nuisance” suits,

with no hope of recovery.” In the light of these facts,

there is something fundamentally unfair about a gen-

eral presumption that the defendant has acted wrong-

fully by speaking falsely merely on the basis of the filing

of a complaint; “it runs counter to our usual assump-

tion that a defendant has acted properly unless and

until it is proven otherwise.” " It is all too easy to file

a complaint if it carries few burdens with it, and it is

all too difficult to defend against such a complaint where

the most important and difficult burden in the case is

on the defendant.

Moreover, not even the requirement that the publica-

tion be defamatory offers much protection. This is be-

cause there are very few news reports that do not ad-

® For example, evidence necessary to prove truth may be solely

in the hands of, or under the effective control of, the plaintiff. See

also note 30, infra, and accompanying text.

* See Franklin, Good Names and Bad Law: A Critique of Libel

Law and a Proposal, 18 U.S.F. L. Rev. 1, 5 (1988); Massing, The

libel chill: How cold is it out there?, Colum. Journalism Rev.,

May/June 1985, at 31, 33 (1985); Anderson, Libel and Press Self-

Censorship, 53 Tex. L. Rev. 422, 485 (1975); Herbert v. Lando

441 U.S. 153, 204-205 (1979) (Marshall, J., dissenting).

ry See Riley, Fighting Back: What Redress Media Have Against

Frivolous Libel Suits, 59 Journalism Q. 566 (1982), as updated

by Franklin, supra note 9, at 6 n. 27.

11 R. Sack, Libel, Slander, and Related Problems 136 (1980).

versely impact upon someone, and the definitions of

defamation in most states are so loosely worded that

almost any adverse statements qualify as defamation.

For example, in Pennsylvania, a statement is defamatory

“4f it tends so to harm the reputation of another as

to lower him in the estimation of the community or

deter third persons from associating or dealing with

him’.” Vitteck v. Washington Broadcasting Co., 256 Pa.

Super. 427, 389 A.2d 1197, 1200 (1978), quoting Birl v.

Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472, 475

(1960). Similarly, in Illinois a statement is defamatory

if it “impeaches a person’s integrity, virtue, human de-

cency, respect for others or reputation and thereby low-

ers that person in the estimation of the community or

deters third parties from dealing with that person.”

Newell v. Field Enterprises, 91 Ill. App.3d 735, 415 N.E.

2d 434, 440, 47 Ill. Dec. 429 (1980), modified on other

grounds, Chapski v. Copley Press, 92 Ill.2d 344, 442 N.E.

2d 195, 65 Ill. Dec. 884 (1982). Under such standards

media defendants subject to the Pennsylvania rule may

be deprived of First Amendment protections altogether.

Indeed, unless the Pennsylvania rule is repudiated, the

practical result under many states’ relaxed negligence

and defamation standards may be jury verdicts against

media defendants who simply report bad news.

2. The Problems of Foreseeability and Proof of Innuendo.

Much has been written in this case about the ability

of one side or the other to prove truth, or the fairness of

placing on one side or the other the burden of proving

or disproving truth. But “truth” in a defamation case

concerns more than the simple offering of clear and con-

vincing evidence as to particular facts. Rather, whoever

carries the burden of proof must also address all infer-

ences that might reasonably be drawn from those facts

—.a formidable task not only in respect to evidence but,

more importantly, in respect to foreseeing in advance

of publication the possible inferences that later might

also have to be supported by proof.

Many state courts have drawn a sharp distinction in

this regard between public official/figure and private per-

son cases. Where the plaintiffs are public official/figures,

there can be no liability for inference or innuendo once

the published facts have been proven true. See, e.g.,

Strada v. Connecticut Newspapers, Inc., 193 Conn. 313,

477 A.2d 1005, 1010-12 (1984), and cases there cited.

As the Strada court held, “{t}he media would be unduly

burdened if, in addition to reporting facts about public

officers and public affairs correctly, it had to be vigilant

for any possibly defamatory implication arising from the

report of those true facts.” Jd. at 1012; emphasis added.

And yet precisely the opposite is true in private per-

son cases; defendants can be and have been held liable

for implications, inferences and innuendos arising out

of the reporting of true facts. In Pennsylvania, for ex-

ample, a finding of falsity may be based on a false infer-

ence drawn from true statements.” In a recent Penn-

sylvania case, the defendant newspaper had to prove

not only the truth of statements in an article about a

son committing suicide (such as the fact that he shot

himself with a rifle belonging to his father) but also the

truth of the implication that the father in some fashion

caused the suicide. Rutt v. Bethlehems’ Globe Pub. Co.,

484 A.2d 72, 76-77 (Pa. Super. 1984). In this very

2 E.q., Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962) ;

pnt Vv. Warner-West Corp., 349 Pa. 365, 369, 37 A.2d 544, 546

18In Pennsylvania, for purposes of the threshold determination

of whether a communication could have been understood as defama-

tory, it is not necessary that the communication actually caused

harm; its defamatory character “depends on the general tendency

of the words to have such an effect.” Agriss v. Roadway Express,

Inc., 483 A.2d 456, 461 (Pa. Super. 1984). Moreover, the fact that

the communication is subject to an innocuous interpretation or that

the author had an innocent intention does not defeat the right of

action. Id. at 462; Brophy v. Philadelphia Newspapers, Inc., 281

case, the trial court told the jury not once but five times

that the statements published by defendants, even if lit-

erally true, could be held defamatory if they conveyed a

false and defamatory meaning by implication and innu-

endo.* A defendant who has the burden to prove

“truth” in such a setting not only has an unfair eviden-

tiary burden but, more importantly, is saddled with such

a weight on its stories—that is, the need to foresee how

some reader may misconstrue true statements—that some

of those stories may never be released to the public at all.

The same type of “sting” rule as to inferences obtains

in cYher states. In a Tennessee case, for example, where

Pa. Super. 588, 422 A.2d 625 (1980); Raffensberger V. Moran, 485

A.2d 447, 451 (Pa. Super. 1984); Zartman v. Lehigh County

Humane Soc’y, 482 A.2d 266, 269 (I’a. Super. 1984).

14 JA A99-A100:

Nevertheless, although individual statements in an article may

be literally true, if the article conveys a defamatory meaning

by implications and innuendo, which meaning is false, then

insofar as the law is concerned, the article is false.

Once again: Although individual statements in an article

may be literally true, if the article conveys a defamatory mean-

ing by implication and innuendo, which meaning is false, then

insofar as the law is concerned, the article is false.

The proof of falsity thus must be directed at the gist or

sting of the defamation. The test is whether the alleged libel,

as published, would have a different effect on the mind of the

reader than the truth would have produced.

Remember again, if defamatory implications and innuendo

produced by an article are false, the literal truth of each fact

asserted in the article will not render the article true where

the article read in its entirety implies additional defamatory

statements.

In order to carry their burden with respect to the sixth

element, then, the plaintiffs must prove by a fair preponderance

of the evidence either that a defamatory statement in an article

was false, or that while true, the statements in an article con-

veyed a defamatory meaning by implication and innuendo,

which defamatory meaning was false.

the burden was on the defendant newspaper to prove

truth, it was held not to be a defense that every state-

ment in the article was true and correct. Since the

ordinary reader could have inferred an additional, ad-

verse meaning from the article, the newspaper had to

prove the truth of that meaning. Memphis Pub. Co. v.

Nichols, 569 S.W. 2d 412, 418-420 (Tenn. 1978). Through-

out these rulings, the state courts have imposed a differ-

ent, more all-encompassing type of duty upon the defend-

ant in a private person case than in a public official/

figure case.” Thus, it will not be enough for a media

defendant who bears the burden of proof simply to prove

the truth of the relevant facts; it must also prove the

truth of inferences, implications, and innuendos that can

be drawn from those facts.

A per se defamatory publication is presumed to have

been understood in a defamatory sense, but when a pub-

lication is susceptible to an innocent as well as a defam-

atory interpretation, the plaintiff is required in some

states to prove the defamatory meaning because there is

no basis for any presumption."* Yet these assumptions

438 (1958) (in a private person case, “if the words used, when

taken in their ordinary acceptation, convey a degrading imputation,

no matter how indirectly, they are libelous—it matters not how

artfully their meaning is concealed or disguised”), with Schaefer

v. Lynch, 406 So.2d 185, 188 (La. 1981) (Bolton ruling is correct

but not applicable to public officials). The Washington Supreme

Court, in holding against a broadcaster in a private person defama-

tion case, has said that the plaintiff may recover upon a showing

that “the defendant knew or, in the exercise of reasonable care

should have known that the statement was false, or would create °

false impression in some material respects.” Taskett v. King Broad-

casting Co., 86 Wash.2d 439, 546 P.2d 81, 85 (1976) (emphasis in

original).

16 See Spiegel, Defamation by Implication—In the C ]

. onfidential

Manner, 29 S. Cal. L. Rev. 306, 312 (1956).

are stood on their head in states like Pennsylvania, where

the plaintiff is not required to be put to any proof in

this regard, and the defendant must establish the truth

of each adverse interpretation that the jury could legiti-

mately draw. Since “[i]t is often the case that although

the basic facts are not in dispute, the parties in good

faith may nevertheless disagree about the inferences to be

drawn from these facts * * *,” the question of who

bears the burden of proof in relation to inferences be-

comes vital.

Moreover, it must be remembered that while a plain-

tiff need only read or hear what has been published about

him and allege the inferences that he believes others

have drawn from the statement, the media defendant,

if it carries the burden imposed by Pennsylvania, must

foresee all adverse inferences that may ultimately be

drawn from the statements and either eliminate them

from the communication or prove them true. Thus, the

California Supreme Court, in a case deciding that a de-

fendant is liable for what is insinuated as well as for

what is stated explicitly, went so far as to say that

“(t]he language used may give rise to conflicting infer-

ences as to the meaning intended, but when it is ad-

dressed to the public at large, it is reasonable to assume

that at least some of the readers will take it in its de-

famatory sense.” '* Such a rule may be fair and prac-

tical so long as the plaintiff is required to prove the

17 §.J. Groves & Sons Co. v. Ohio Turnpike Comm'n, 315 F.2d 235,

237 (6th Cir.), cert. denied, 375 U.S. 824 (1963).

18 MacLeod v. Tribune Pub. Co., 52 Cal.2d 536, 343 P.2d 36,

43 (1959). See also Herrmann v. Newark Morning Ledger Co., 48

N.J. Super. 420, 188 A.2d 61, 71-72, aff'd on rehearing, 49 N.J.

Super. 551, 140 A.2d 529, 530 (1958), where the court stated

that even though an article does not impute defamatory meaning

on its face, and even though a majority of people would not derive

a defamatory meaning from it, the defendant carries the burden

of proving the truth of the defamatory implications that some peo-

ple will derive from it.

falsity of the particular inference he drew, but if that

burden is on the media defendant, the scope of the bur-

den is almost limitness.'”

Indeed, under that approach a defendant might publish

a statement about the plaintiff which was not defamatory

on its face but was defamatory only because of facts

known to the plaintiff and his intimates. The question

whether the defendant should have discovered those facts

would be then left to a jury, along with the question

whether the defendant had proved the truth of connota-

tions of which it may not have been aware when it pub-

lished the statement. To require that the defendant have

the full burden of proof as to such “truth,” particularly

where the plaintiff’s complaint may not be specific about

the sense in which the statements were deemed to be

defamatory, is both unfair and unrealistic. It places too

heavy a burden on the media defendant under the First

Amendment. As one commentator has put it: “It would

be only too easy for a jury to conclude that someone at

the newspaper should have known of the latent ambiguity

or hidden fact. The only way to avoid such a result is

to require the plaintiff to establish that the media de-

fendant was aware of the defamatory meaning at the

1° Courts are e!ready mired in the kinds of determinations in-

volved in Greenbelt Coop. Pub. Ass’n v. Bresler, 398 U.S. 6,

11-14 (1970), where this Court had to decide whether the word

“blackmail” could have been understood by a reader in the sense

alleged by the plaintiff. This type of problem will be gveatly

exacerbated if the burden of proving the truth of all infer-

ences is on the defendant, because the defendant not only will

be forced to prove that the inferences alleged by the plaintiff could

not be inferred by reasonable people but also that, if those un-

intended inferences could be drawn, they are, in fact, true. In

an already confused atmosphere, the jury will thus be further

misled by the alternative, contradictory positions forced upon the

defendant. It makes much more sense to place the ultimate burden

of persuasion on the plaintiff, thus leaving a defendant free to

interpose truth as an affirmative defense.

time the statement was uttered.” * And this burden, of

course, is inextricably intertwined with that of truth or

falsity.

Under the Pennsylvania rule, there is still a further

complication. In some states, ambiguous lar guage must

be pleaded by the plaintiff so as to indicate that the words

were understood in a defamatory sense—that the posi-

tion or opinion of the readers was such that they derived

a defamatory meaning from them.” Can this burden also

be shifted to the media defendant, so that it must prove,

in an ambiguous language case, that readers could not

have understood the words as defamatory or derived a

defamatory meaning from them? Such a burden would

appear to be intolerable, and yet it flows naturally from

the Pennsylvania rule in those states where the plaintiff

can plead the defamation in general terms.

Although this Court announced in Gertz that it might

take into account “somewhat different” considerations if

a statement’s content “did not warn a reasonably pru-

dent editor or broadcaster of its defamatory potential”

(418 U.S. at 348), it is not at all clear how such con-

siderations can be taken into account in practice. For

example, there obviously would be serious difficulties in

reversing a jury’s finding, approved by a state court

following its own standards, that (a) a reasonably pru-

dent editor or broadcaster should have foreseen all in-

nuendos, and (b) the editor or broadcaster failed to

carry its burden of proving the truth of those innuendos.

In such a case, at the very least the Court would have to

establish two categories of “fact”—direct facts, which

the defendant carries the burden of proving, and facts

20 Franklin & Bussel, The Plaintiff's Burden in Defamation:

Awareness and Falsity, 25 Wm. & Mary L. Rev. 825, 844 (1984)

(emphasis in original).

21 This is true, for example, in California. E.g., Peabody v.

Barham, 52 Cal. App.2d 581, 126 P.2d 668, 670 (1942), modified in

MacLeod vy. Tribune Pub. Co., supra.

by inference, which the plaintiff carries the burden of

disproving. Whether this dichotomy would be workable,

in view of the maze of variations on the “fact” theme

now extant in the states, is problematical at best.”

If the Pennsylvania Supreme Court ruling stands,

media defendants will bear the burden of proving the

truth of any and every adverse implication, inference or

innuendo that some people might derive from published

statements. Not only is such a rule unfair and unwork-

able, but the spectre of the rule, with its attendant media

burden of foreseeing myriad reader or listener interpre-

tations of its statements and how they might be proved

true, will chill many statements, to the ultimate detri-

ment of the public.

3. The Issues of Jury Confusion.

Juries are already confused by instructions in libel

cases,** and the application of the Pennsylvania ruling

will add a new element of confusion that threatens a

vigorous, outspoken press.

Appellants and other amici persuasively urge the ex-

press adoption of the legal concept, derived from Time,

Inc. V. Firestone, 424 U.S. 448, 458 (1976), that falsity

is an element of fault. We agree with their arguments

in favor of such a doctrine but write separately because

the difficulty of separating for a jury the elements of

fault from the elements of falsity has great practical

import.

2 Franklin & Bussel, supra note 20, at 828-834; Greenbelt Coop.

Pub. Ass’n v. Bresler, 398 U.S. at 22, 23 (White, J., concurring).

%8 See, e.g., Brill, Inside the Jury Room at the Washington Post

Libel Trial, Am. Law., Nov. 1982, at 1; Taylor, Libel Law: A Tough

Puzzle for Trial Jury, N.Y. Times, May 5, 1983, at B15, col. 1;

Franklin, supra note 9, at 8.

As we have noted, while it is theoretically true that a

defendant can act reasonably or be “non-negligent” in

publishing an untrue libelous statement, it is going to be

extraordinarily difficult for a jury to believe it. First, in

the minds of many jurors, reasonable care is closely as-

sociated with and often dependent upon a determination

of truth or falsity. As one court has stated, “(t]he pub-

lisher’s carelessness must have caused an error in ac-

curacy, an error in failing to ascertain that the defama-

tory statement was false.” ** Fault, in other words, not

only consists of carelessness but is evidenced by the re-

sulting falsity. Second, a jury is going to be considering

evidence as to fault and falsity at the same time, and

inevitably the facts found as to one will bear on the

other. To tell a jury that one party carries the burden

as to truth but the other carries it as to fault is to

create unrealistic expectations of what a jury can ab-

sorb and apply. The risk is great under the Pennsyl-

vania rule that if the defendant does not prove “truth,”

it will inevitably be found at fault.

We have seen how this works in the instant case. The

instructions on fault followed immediately upon, and

were related to, the instructions on falsity. The jurors’

were told to turn from their consideration of one to their

consideration of the other. In exercising their practical,

good-sense judgment about whether due care had been

24 Wilson Vv. Scripps-Howard Broadcasting Co., 642 F.2d 371, 375

(6th Cir.), cert. dismissed pursuant to Rule 58, 454 U.S. 1130

(1981).

25 Keeton, Defamation and Freedom of the Press, 54 Tex. L. Rev.

1221, 1236 (1976); Franklin & Bussel, supra note 20, at 858. The

fact that the burden of proving truth or falsity can make the dif-

ference is demonstrated by the Washington Post-Tavoulareas case,

where it has been reported that one juror was able to convince the

other five that the Post carried the burden of proving truth and had

failed to do so. Brill, supra note 23. See generally Tavoulareas v.

Washington Post Co., 759 F.2d 90 (D.C, Cir. 1985), reh’g granted,

June 11, 1985.

exercised, therefore, the jurors had uppermost in their

minds the conclusions they had just reached about truth

or falsity. In this case, the burden was placed by the

trial judge on the plaintiff of proving falsity, but when

the Pennsylvania rule as announced by the state’s Su-

preme Court is followed in the next case (or in this case

on remand), the burden of proving truth will be on the

defendant. The jury, if it reaches the issue of fault at

all, will have just decided against the defendant on the

truth issue; it will have concluded that a defamatory

falsehood has been published. Added to the jury’s burden

of trying to disassociate falsity from fault will be the

almost impossible task of recognizing and applying a

shift in the burden of proof from the defendant back to

the plaintiff. This is more than a jury can reasonably ve

asked to do, and the resulting risk of unfair defamation

judgments is greater than media defendants should be

asked to bear.

Additional pragmatic considerations argue for placing

the falsity burden on the plaintiff, particularly in those

cases where the plaintiff seeks to establish the defendant’s

culpable state of mind. If the plaintiff is attempting to

show that the defendant lacked a reasonable basis for be-

lieving the contested statement to be true, as a practical

matter he has to prove that the statement is false. If

falsity is to be a prerequisite to recovery—which it must

be, under Gertz and Firestone—a great deal of confu-

sion in submitting the case to the jury is going to be

avoided by placing the burden of proof as to that issue

on the plaintiff. And that plaintiff, after all, is in the

best position to know the facts and details about his own

activities.”

Such considerations as these matter in the courtroom.

While statistical proof concerning jury deliberations is

not available, both plaintiffs’ and defendants’ trial at-

26 See Keeton, supra note 25, at 1236; Franklin & Bussel, supra

note 20, at 859.

torneys know from experience that many defamation

cases are extremely close in the minds of jurors, and that

a number of factors, including who carries the burden

of proof, can be decisive in reaching a given result. In

a close case, placement of the burden of proof may well

be determinative of liability. Thus, by allocating the

burden of proof, the trial court effectively “decides each

issue of fact which the jury is unable to decide.” ** The

practical result is to impose liability without fault in

certain cases—a result which, as we have noted, this

Court had said the states cannot constitutionally reach

even in private person cases.

There are other important First Amendment consid-

erations. For example, if the burden rests on the de-

fendant to prove truth, the pressure increases drama-

tically to produce any confidential sources who can sup-

ply that proof. Yet as numerous state shield statutes

attest,** there are strong public policy reasons for not

forcing the production of confidential sources except

where absolutely essential to the resolution of a law-

suit. Moreover, as one state court has pointed out, “no

direct consideration appears to have been given [in the

extensive litigation to date] to the scope of potential

27 E. Morgan, Some Problems of Proof Under the Anglo-American

System of Litigation 70-71 (1956).

*8 At least half the states have some form of statutory shield

protection for confidential sources. See Ala. Code § 12-21-142; Ariz.

Rev. Stat. § 12-2237 (1981); Ark. Stat. Ann. § 43-917 (1977) ;

Cal. Const. art. 1, §2(b); Del. Code Ann. tit. 10, §§ 4320-4326;

Ill. Rev. Stat. ch. 110, § 8-901 et seg.; Ind. Code § 34-3-5-1; Ky. Rev.

Stat. § 421.100; La. Rev. Stat. § 45:1454; Md. Cts. & Jud. Proc.

Code Ann. § 9-112; Mich. Comp. Law § 767.5a; Minn. Stat.

§§ 595.021-595.025 (1981); Mont. Code Ann. §§ 26-1-901 et seq.;

Neb. Rev. Stat. §§ 20-144-20-147 (1977) ; Nev. Rev. Stat. § 49.275;

N.J. Rev. Stat. § 2A:84A-21; N.M. Stat. Ann. § 38-6-7 (1978);

N.Y. Civ. Rights Law §79-h; N.D. Cent. Code § 31-01-06.2; Ohio

Rev. Code Ann. § 2739.12 (Page 1981); Okla. Stat. tit. 12, § 2506;

Or. Rev. Stat. §§ 44.510-44.540; 42 Pa. Cons. Stat. Ann. § 5942;

R.I. Gen. Laws § 9-19.1-2; Tenn. Ccde Ann. § 24-1-208.

liability for defamation to which an identified news

source is exposed.” ** In other words, even in a case

where truth can be proved, the media defendant risks

not only revealing confidential sources but exposing them

to the same defamation charges that the defendant is

already experiencing.*

We do not argue, based on the foregoing considera-

tions, for a general application of the Sullivan principles

to private parties. We do say, however, that in view of

the unfairness and risk of self-censorship that will re

sult from the Pennsylvania rule, each citizen may fairly

be asked to spell out in his or her complaint precisely

what the alleged defamation is and then proceed to prove

that the defamatory elements are false. Otherwise, .he

balance between the protection of private rights and the

free flow of information to the public will swing so

strongly to one side that all citizens in the democracy

will suffer. As one state court has so aptly pointed out,

treating only public officials/figures as having assumed

the risk of defamation by placing themselves in the public

eye misconceives “the role which every citizen is ex-

pected to play in a system of participatory self-govern-

ment. Every citizen, as a necessary part of living in

society, must assume the risk of media comment when

he becomes involved, whether voluntarily or involuntarily,

in a matter of general or public interest.” *

2° Dairy Stores, Inc. v. Sentinel Pub. Co., 191 N.J. Super. 202, 465

A.2d 953, 962 (1983), aff'd, 198 N.J. Super. 19, 486 A.2d 344

(1985).

380 Mureover, a serious problem may exist as to whether the

confidential source will support the information he previously sup-

plied. As a witness, the source may change his story during dis-

covery, or even lie, either because the repercussions from the in-

formation had not been anticipated or to avoid being subjected to

liability. See Franklin, supra note 2, at 279.

31 Aafco Heating & Air Conditioning Co. v. Northwest Publica-

tions, Inc., 162 Ind. App. 671, 321 N.E.2d 580, 588 (1974), cert.

denied, 424 U.S. 918 (1976).

4. The Resulting Self-censorship by the Press.

A claimed “chilling effect” on the press from libel liti-

gation has become such a cliche that attorneys tend

largely to avoid it—as witness the briefs by Appellants

and the other amici in this case. But the fact is that even

successfully-defended libel litigation has had a chilling

effect on news reporting, though some in the industry—

perhaps out of professional pride and personal self-

esteem—deny it.** A contributing editor of the Columbia

Journalism Review, for example, interviewed more than

150 reporters, editors and media lawyers and “came

away convinced that a chill has indeed set in.” Massing,

supra note 9, at 31. He has given numerous examples of

how the chill has manifested itself, from the discontinu-

ance of investigative journalism to names and pertinent

details being left out of stories. Jd. One managing editor

told him, “[y]ou can never prove that a story didn’t get

into a paper, but I’m going to say that there are things

that should have gotten into our paper that haven’t.”

Id. The editor of a small weekly who had been sued

seven times in ten years, who had successfully disposed

of all of these suits but had gone “broke” in the process,

and who had spent an average of one day a week on

court-related matters, told the author, “I’m not as ag-

gressive as I used to be.” Jd. at 34. Many other examples

are given.*

82 Smith, The Rising Tide of Libel Litigation: Implications of

the Gertz Negligence Rule, 44 Mont. L. Rev. 71, 87 (1983) ; Friendly,

Investigative Journalism Is Found Shifting Goals, N.Y. Times,

Aug. 23, 1983, at 8, col. 1 (“reporters or television news directors

do not openly discuss the chances they do not take’’).

%3 Of course, the now-familiar story of the Alton (Ill.) Telegraph

(cir. 38,000) and its $1.4 million settlement of a $10.5 million libel

suit need not be repeated here. Suffice it to say that today, the

Telegraph “doesn’t produce the kind of investigations that once

led to the resignation of two Illinois Supreme Court judges for

accepting gifts of stock.” Curley, How Libel Suit Sapped The

Crusading Spirit Of A Small Newspaper, Wall St. J., Sept. 29,

1983, at 1, col. 1.

This Court recognized in Sullivan, 376 U.S. at 279,

that requiring the media to prove the truth of reported

facts would lead to self-censorship. Publishers, the Court

noted, would avoid the publication of controversial] arti-

cles because they would be fearful of not being able to

prove the truth of their statements. But precisely the

same reasoning is applicable to stories about private per-

sons. The fear does not relate to the nature of the per-

son being written about but to the possibility of a law-

suit and the inability to prove in a court of law, by

whatever legal standard is applicable, that each element

of the story is true.

Both large media and small would be at a disadvantage

if the added burden of proof under the Pennsylvania rule

were imposed on them.

Large media, such as national television networks and

newspapers in large cities, will normally have attorneys

available to check questionable or borderline stories. At-

torneys are notoriously conservative in close cases, find-

ing it easier to say “no” than to risk even a winnable

lawsuit.** Therefore, the decision may well be to change

or even kill a story rather than risk the time and ex-

pense of a possible lawsuit, even if the press is confident

of the truth of the story. This will be particularly so,

however, if the press has to prove truthfulness, and even

more particularly truthfulness as to all possible interpre-

tations of the story.

_ If stories are printed and the resulting lawsuits reach

trial, large media appear to juries to be corporate, deep-

pocket defendants that elicit no sympathy or understand-

ing. It would simply be ignoring reality not to recognize

that today, more than in most periods of our history,

there is an animosity toward the press. Whether this is

because journalists are regarded as arrogant, the media

% See examples in Anderson, supra note 9, at 431-432.

appear to be biased, or for whatever reason, juries are

reflecting a general community hostility to the press, and

their verdicts are reflecting this attitude.** Whether or

not such attitudes are justified, if rules of law allow

them to be translated into unjustified jury verdicts, the

public will be the eventual loser.

Small media, on the other hand, are most likely to

become embroiled in private person litigation; it is the

small town dailies or weeklies, for example, that report

more often about private persons and that therefore run

the greater risk by virtue of the sheer number of stories

printed. Yet small media normally do not have attor-

neys immediately at hand to protect them by reviewing

such stories prior to publication.

This fact has particularly serious consequences under

the Pennsylvania rule. In a case where the burden of

proving falsity is on the plaintiff, any editor who is con-

fident of the truth of a story will probably release it,

even if it involves a controversial subject. But if the

burden is the other wy, a wholly different set of con-

siderations comes into play. The question then becomes

not whether the story is true, but whether the press can

prove, as a matter of law, that it is true. How will the

hearsay rule apply, if at all? Will the evidence relied

upon be deemed legally admissible? Can witnesses in

35 See, e.g. Goodale, The Tavoulareas Jury Verdict Provides a

Chilling Lesson for the Press, 1 Com. Law 6 (No. 3, 1983);

Franklin, supra note 9, at 8-10. The trend toward trial rather than

summary judgment, larger jury awards, larger legal fees in libel

cases, and larger costs of settlement, have all been well documented.

See, e.g., Smolla, Let the Author Beware: The Rejuvenation of the

American Law of Libel, 182 U. Pa. L. Rev. 1, 6-7, 13, 14 (1983).

For a recent study of one jury’s attitude toward a media defendant

in a libel case, see LDRC Bulletin No. 14, 1, 6-7, 9-10 (1985).

In an entirely different context, this Court has decided a case

in part because of “the propensity of juries to award excessive

damages for defamation.” Linn v. United Plant Guard Workers,

383 U.S. 58, 64 (1966).

support of the story be subpoenaed, particularly if they

are located out of town? Can the testimony of old or

unavailable witnesses be preserved? Suppose a witness

is deceased? What are the rules as to confidential sources?

These and a myriad of other questions will face the

editor without the aid of an attorney. The practical re-

sult may well be to avoid the whole problem by killing

the story.

Under the Pennsylvania rule, the time it takes to de-

fend a libel action, the costs and diversion of resources

for that defense, and the possibility of large jury awards

would, along with all of the problems of affirmatively

proving the truth of the defamatory statements, amount

to a combination of publication disincentives that many

media could not bear. The impact would be particularly

burdensome on small media.

Large media obtaining copy from wire services and

small media receiving copy from free-lancers will have

special problems. Under Pennsylvania law—as in many

other jurisdictions *—it is no defense that a third party

made the defamatory statement and that the defendant

merely repeated or otherwise republished it. The defend-

ant is subject to the same liability as if it had originally

36 Restatement (Second) of Torts § 578 (1976). For example,

unless a special privilege applies, if a defendant publishes the fact

that X said that Y committed a crime, it is not enough for the

defendant to prove that X made the statement; it must prove that

Y did commit the crime. L. Eldredge, Law of Defamation § 67, at

331 (1978) ; see generally Lawrence v. Bauer Pub. & Printing Ltd.,

89 N.J. 451, 446 A.2d 469, 474, cert. denied, 459 U.S. 999 (1982);

Medico v. Time, Inc., 643 F.2d 134, 137-139 (3d Cir.) (discussing

“fair report” exception), cert. denied, 454 U.S. 836 (1981).

For examples of how significant this can be when the standard

is simple negligence, as opposed to actual malice, see LaRue, Living

With Gertz: A Practical Look at Constitutional Libel Standards,

67 Va. L. Rev. 287 (1981).

published the defamation.* If the burden is on the news-

paper to prove the truth of a story received from a news

agency or a syndicate covering remote persons or events,

for example, there may be serious impediments to the

paper’s ability to discover and prove truth, particularly

where it alone is sued. That there may be ultimate vin-

dication for the newspaper in no way diminishes the

chilling effect that this cumbersome and costly proce-

dure will have on the newspaper in the meantime.

We respectfully submit that it is precisely because

the malice standard does not apply to private persons

that the media need the protection accorded by having

the burden of proving falsity on the plaintiff. The higher

standards of fault that are required when the media

defames a public person are no longer applicable; simple

negligence will suffice, and, as we have seen, this is in any

event an illusory standard of protection, particularly

given the almost unlimited definition of defamation in

most states.** If the media, protected only by the simple

87 Medico v. Time, Inc., 643 F.2d at 134; Lal v. CBS, Inc., 551

F. Supp. 356, 361 (E.D. Pa. 1982), aff’d., 726 F.2d 97 (3d Cir.

1984).

38 It is no answer that media defendants are covered by insurance.

First, it has been estimated that a quarter of all newspapers and

broadcasters are not even insured. Anderson & Murdock, Effects

of Communications Law Decisions on Daily Newspaper Editors,

58 Journalism Q. 525 (1981); Kupferberg, Libel Fever, Colum.

Journalism Rev., Sept./Oct. 1981, at 36, 39; Franklin, supra note 2,

at 265. Second, even for those that are insured, the possibility of

an adverse claims history in the future and insurers’ use of “de

ductibles and “retentions” mean that the threat of lawsuits remains

a formidable one. Id. at 274-275.

389 The ad hoc and often irrational nature of jury verdicts under

the ephemeral negligence standard has led to a situation where

“the very threat of protracted litigation along with frequent sub-

stantial damage awards will be sufficient to chill aggressive report-

ing and thereby impede the flow of information to the public.”

Bloom, Proof of Fault in Media Defamation Litigation, 38 Vand.

L. Rev. 247, 253 (1985).

negligence standard, must also prove truth, the bias

toward recovery will have shifted so significantly that a

chilling effect is inevitable. This is the ultimate, prac-

tical result of the rule here at issue. It is a result not

in the public interest, and not in keeping with the First

Amendment. The Court should disapprove it.

CONCLUSION

For these reasons and those expressed by Appellants

and the other amici, we urge the Court to reverse the

decision and judgment of the Supreme Court of Penn-

sylvania.

Respectfully submitted,

E. BARRETT PRETTYMAN, JR.*

JAMES G. MIDDLEBROOKS

HOGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

DAN PAUL

FRANKLIN G. BURT

STEVEN M. KAMP

PAUL & BURT

13th Floor

100 South Biscayne Boulevard

Miami, Florida 33131

(305) 371-2000

Attorneys for Print and

Broadcast Media and

Organizations

* Counsel of Record

APPENDIX

APPENDIX A

DESCRIPTION OF AMICI

1. A.H. Belo Corporation—The A.H. Belo Corpora-

tion, a Texas corporation, publishes The Dallas Morning

News, a daily newspaper in Dallas, Texas.

John R. McElhaney

Thomas §S. Leatherbury

Locke, Purnell, Boren, Laney & Nealy, P.C.

36th Floor

RepublicBank Tower

Dallas, Texas 75201

Attorneys for A.H. Belo Corporation

2. American Broadcasting Company—The American

Broadcasting Company, a division of American Broad-

casting Companies, Inc., is a New York corporation

which owns and operates a national television network

(ABC), national radio networks, television and radio

broadcasting stations, and, through various subsidiaries,

also publishes magazines and books.

Sam Antar

Vice President & General Attorney

American Broadcasting Company

7 West 66th Street

New York, New York 10023

3. American Society of Newspaper Editors—The

American Society of Newspaper Editors (““ASNE”) is a

nationwide professional organization of more than 950

persons who hold positions as directing editors of daily

newspapers throughout the United States.

Richard M. Schmidt, Jr.

Cohn & Marks

1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036

Attorneys for American Society of

Newspaper Editors

4. Anniston Star Consolidated Publishing Company—

The Anniston Star Consolidated Publishing Company is

an Alabama corporation which publishes the Anniston

Star and Talladega Daily Home daily newspapers and

several weekly newspapers, all in the State of Alabama.

James C. Barton

Johnston, Barton, Proctor, Swedlaw & Naff

1100 Park Place Tower

2001 Park Place

Birmingham, Alabama 35203

Attorneys for Anniston Star Consolidated

Publishing Company

5. A.S. Abell Publishing Company—The A.S. Abell

Publishing Company is a Maryland corporation which

publishes The Baltimore Sun and The Baltimore Evening

Sun newspapers in Baltimore, Maryland.

Douglas D. Connah, Jr.

Venable, Baetjer & Howard

1800 Mercantile Bank & Trust Building

Two Hopkins Plaza

Baltimore, Maryland 21201

Attorneys for A.S. Abell Publishing

Company, publisher of The Baltimore

Sun and the Baltimore Evening Sun

6. Associated Press—The Associated Press, the world’s

largest newsgathering organization, is a mutual news

cooperative organized under the Not-For-Profit Corpora-

tion Law of the State of New York, and engages in

gathering and distributing news of local, national and

international importance to its member newspaper and

broadcast stations across the United States and through-

out the world. The AP, on its own behalf and on behalf

of its members, has a vital interest in protecting the

right of the press to gather and publish news.

Richard N. Winfield

Rogers & Wells

200 Park Avenue

New York, New York 10166

Attorneys for the Associated Press

7. Associated Press Managing Editors—The Associ-

ated Press Managing Editors is a separate membership

organization which includes more than 600 editors of

newspaper members of the Associated Press, which gath-

ers news worldwide for dissemination of 1,330 news-

papers and 3,300 broadcast stations in the United States.

Richard N. Winfield

Rogers & Wells

200 Park Avenue

New York, New York 10166

Attorneys for the Associated Press

Managing Editors

8. Bergen Record Corporation—The Bergen Record

Corporation is a New Jersey corporation which pub-

lishes The Record and The Sunday Record newspapers

from Hackensack, New Jersey.

Peter G. Banta

Winne, Banta, Rizzi, Hetherington

& Basralian

22 East Salem Street

Hackensack, New Jersey 07602

Attorneys for Bergen Record Corporation

9. Cable News Network, Inc.—Cable News Network,

Inc., a subsidiary of Turner Broadcasting System, Inc.,

is the nation’s only 24-hour television network, reaching

more than 34 million homes domestically and many other

outlets overseas.

Robert W. Ross, Esq.

Vice President and General Counsel

Turner Broadcasting System, Inc.

1140 Connecticut Avenue, N.W.

Washington, D.C. 20036

Stuart F. Pierson, Esq.

William E. Kennard, Esq.

Verner, Liipfert, Bernhard,

McPherson and Hand, Chartered

Suite 1000

1660 L Street, N.W.

Washington, D.C. 20036

Attorneys for Cable News

Network, Inc.

10. Central Newspapers, Inc.—Central Newspapers,

Inc., publishes the following daily newspapers: Jndi-

anapolis Star, Indianapolis News, Arizona Republic, and

Phoenix Gazette.

Edward O. DeLaney

Barnes & Thornburg

1313 Merchants Bank Building

Indianapolis, Indiana 46204

Attorneys for Central Newspapers, Inc.

11. Chronicle Publishing Company—The Chronicle

Publishing Company is a Nevada corporation with its

principal place of business in San Francisco, California,

where it publishes the San Francisco Chronicle, a daily

newspaper.

Neil L. Shapiro

Maria L. Joseph

Cooper, White & Cooper

100 California Street, 16th Floor

San Francisco, California 94111

Attorneys for the Chronicle Publishing

Company

12. The Copley Press, Inc.—The Copley Press, Inc.,

publishes The San Diego Union and The Tribune and

nine other daily newspapers in California and [Illinois

with a combined circulation of more than 700,000.

Harold W. Fuson, Jr.

Vice President and General Counsel

The Copley Press, Inc.

7776 Ivanhoe Avenue

La Jolla, California 92038-1530

13. The Courier Journal and Louisville Times Com-

pany—The Courier Journal and Louisville Times Com-

pany publishes The Cowrier Journal and The Louisville

Times, which are daily newspapers published in Louis-

ville, Kentucky.

Jon L. Fleischaker

Wyatt, Tarrant & Combs

2710 Citizens Plaza

Louisville, Kentucky 40202

Attorneys for The Courier Journal &

Louisville Times Company

14. Deseret News Publishing Company—The Deseret

News Publishing Company, a Utah corporation, publishes

The Deseret News, an evening daily newspaper in Salt

Lake City, Utah.

Wilford W. Kirton, Jr.

Kirton, McComkie & Bushnell

330 South Third East

Salt Lake City, Utah 84111

Attorneys for the Deseret News Publishing

Company 7

15. Des Moines Register—The Des Moines Register

is a daily newspaper in Des Moines, Iowa, and is cir-

culated throughout the State of Iowa by the Des Moines

16. Detroit Free Press *—The Detroit Free Press is

a daily newspaper published in Detroit, Michigan, and

distributed throughout the State of Michigan by Knight-

Ridder Newspapers, Inc., a Florida corporation

Herschel Fink

Honigman, Miller, Schwartz and Cohn

2290 First National Building

Detroit, Michigan 48226

Attorneys for the Detroit Free Press

17. Donrey, Inc.—Donrey, Inc. is a Nevada corpora-

tion, which does business as Donrey Media Group, pub-

lishes 53 daily newspapers and 56 non-daily newspapers,

and owns and operates 8 broadcast stations and 6

cable television companies in 20 states. Some of the daily

newspapers published by the Donrey Media Group in-

clude: the Las Vegas (Nev.) Review-Journal, the South-

west Times-Record in Ft. Smith, Arkansas, the Pomona

(Calif.) Daily Bulletin, the Norman (Okla.) Transcript,

the Sherman (Tex.) Democrat, the Hawaii Tribune Her-

ald in Hilo, Hawaii, the Minot (N.D.) Daily News, the

Macon (Mo.) Chronicle-Herald, the Picayune-Item in

Picayune, Mississippi, the Glasgow (Ky.) Daily Times,

the Columbia (Tenn.) Daily Herald, the Aberdeen

(Wash.) Daily World and the Kent (Wash.) Daily News

Journal. Donrey Media Group also owns and operates

radio stations KE XO-AM and KLDR-FM in Grand Junc-

tion, Colorado.

George O. Kleier

General Counsel

David M. Olive

Assistant General Counsel

Donrey Media Group

920 Rogers

Ft. Smith, Arkansas 72901

18. Evening Post Publishing Co.—The Evening Post

Publishing Co., a South Carolina corporation, publishes

The Evening Post and The News and Courier, which are

daily newspapers published in Charleston, South Carolina

and distributed throughout the State of South Carolina.

D.A. Brockington, Jr.

Brockington, Brockington & Smith

P. O. Box 663

Charleston, South Carolina 29402

Attorneys for The Evening Post

Publishing Co.

19. Gaithersburg Publishing Company, Inc.—Gaith-

ersburg Publishing Company, Inc. is a Maryland corpora-

tion which publishes the following weekly newspapers in

Maryland: Olney Courier-Gazette, The Gaithersburg Ga-

zette, The Gazette, The Rockville Gazette, The Damascus

Courier-Gazette, and The Mt. Airy Courier-Gazette.

Theodore Sherbow

Weinberg and Green

100 South Charles Street

Baltimore, Maryland 21201

Attorneys for Gaithersburg Publishing

Company

20. Globe Newspaper Company—Globe Newspaper

Company publishes The Boston Globe, a daily newspaper

in Boston, Massachusetts.

Robert Haydock, Jr.

Bingham, Dana & Gould

100 Federal Street

15th Floor

Boston, Massachusetts 02110

Attorneys for Globe Newspaper Company

21. Great Falls Tribune Company—-Great Falls Trib-

une Company publishes The Great Falls Tribune, a daily

newspaper in Great Falls, Montana.

Peter Michael Meloy

Meloy Law Firm

P. O. Box 1241

Helena, Montana 59624

Attorneys for Great Falls Tribune Company

22. Gulf Publishing Company, Inc.—The Gulf Pulish-

ing Company, Inc., a Mississippi corporation, publishes:

(i) The Gulport-Biloxi Daily Herald, an evening aaily

newspaper published in Gulfport, Mississippi; and (ii)

The South Mississippi Sun, a morning daily newspaper

published in Gulfport, Mississippi.

W. Joel Blass

Mize, Thompson & Blass

P. 0. Box 160

Gulfport, Mississippi 39501

Attorneys for Gulf Publishing Company, Inc.

23. The Hearst Corporation—The Hearst Corporation

—more than 125 companies including newspapers, maga-

zines, books, broadcasting and cable communications.

Jerome C. Dougherty

Pillsbury, Madison & Sutto

225 Bush Street

San Francisco, California 94120

Attorneys for The Hearst Corporation

24. The Highland Publishing Company—Highland

Publishing Company is a Texas corporation with its prin-

cipal place of business in Marble Falls, Texas, where it

publishes: (i) The Highlander, the largest circulation

(9,561) weekly newspaper in the State of Texas, and

(ii) Texas Fish and Game, a monthly magazine.

David H. Donaldson

Graves, Dougherty, Hearon & Moody

2300 Interfirst Tower

Austin, Texas 78701

Attorneys for Highland Publishing Company

25. The Houston Chronicle Publishing Company—The

Houston Chronicle Publishing Company is a Texas Cor-

poration which publishes The Houston Chronicle, a daily

newspaper in Houston, Texas.

William W. Ogden

D. Mitchell McFarland

Liddell, Sapp, Zivley & Laboon

3400 Texas Commerce Tower

Houston, Texas 77002

Attorneys for The Houston Chronicle

Publishing Company

26. Houston Post Company—The Houston Post Com-

pany publishes The Houston Post, a daily morning news-

paper published in Houston, Texas.

Rufus Wallingford

Fulbright & Jaworksi

500 MBank Building

Houston, Texas 77002

Attorneys for Houston Post Company

27. Journal Publishing Company—The Journal Pub-

lishing Company, a New Mexico corporation, is the pub-

lisher of The Albuquerque Journal, a seven-days-a-week

newspaper in Albuquerque, New Mexico, which is the

at circulation daily newspaper in the State of New

exico.

Eric D. Lanphere

Michael A. Gross

Johnson & Lanphere, P.C.

6400 Uptown Boulevard, N.E.

Suite 200-West

Albuquerque, New Mexico 87110

Attorneys for Journal Publishing Company

28. Landmark Comunications, Inc.—Landmark Com-

munications, Inc. is a Virginia corporation which pub-

lishes The Virginian-Pilot (each morning, Monday

through Friday), The Ledger-Star (each afternoon, Mon-

day through Friday), and a combined newspaper, The

Virginian-Pilot and The Ledger-Star (on Saturday and

Sunday mornings), which are circulated primarily in

Norfolk, Portsmouth, Virginia Beach, Chesapeake and

10a

Suffolk, Virginia, and in surrounding counties in Vir-

ginia and North Carolina. Through subsidiaries, Land-

mark Communications, Inc., also publishes: (i) the

Greensboro Daily News and Record, an all-day, seven-

days-a-week newspaper published from Greensboro, North

Carolina; (ii) the Roanoke Times & World News, all-

day, seven-days-a-week newspaper published from Roa-

noke, Virginia; (iii) 4 daily, 3 tri-weekly, 6 semi-weekly,

14 weekly, 2 free weekly, 22 shopping, and 8 special com-

munity newspapers and publications in California, Flor-

ida, Indiana, Illinois, lowa, Kentucky, Maryland, Missis-

sippi, New Mexico, Pennsylvania and Virginia; (iv) 3

weekly entertainment publications in Hampton Roads,

Virginia; Richmond, Virginia; and Greensboro/Winston-

Salem/High Point, North Carolina. Finally, Landmark

Communications, Inc., also owns and operates television

stations in San Jose, California (KNTV) and Las Vegas,

Nevada (KLAS-TV), radio stations WTAR and WLTY-

FM in Norfolk, Virginia, and The Weather Channel, Inc.,

a 24-hour weather service for cable television systems.

Mr. Louis Ryan

Vice President, Secretary and Counsel

Landmark Communications, Inc.

150 W. Brambleton Avenue

Norfolk, Virginia 23501

Conrad M. Shumadine

Wilcox & Savage

1800 Sovran Center

Norfolk, Virginia 23501

Attorneys for Landmark Communications, Inc.

29. Los Angeles Times—The Los Angeles Times, a

division of The Times Mirror Company, is a daily news-

paper published in Los Angeles, California; it also syn-

dicates newspaper features and is the joint owner of a

news service.

lla

William A. Niese

Vice President and General Counsel

Jeffrey S. Klein

Staff Counsel

Los Angeles Times,

a division of the Times Mirror Comany

Times Mirror Square

Los Angeles, California 90053

30. McClatchy Newspapers—McClatchy Newspapers,

a California communications company since 1857, owns

and operates ten newspapers in California, Washington

and Alaska with a total circulation of over 600,000, in-

cluding The Sacramento Bee, The Fresno Bee, The Mo-

— Bee, the Tri-City Herald, and The Anchorage Daily

ews.

Gary B. Pruitt

Counsel

McClatchy Newspapers

2100 “Q” Street

Sacramento, California 95852

31. The Miami Herald Publishing Company *—The

Miami Herald Publishing Company is a division of

Knight-Ridder Newspapers, Inc., a Florida corporation,

and publishes The Miami Herald, a daily newspaper in

Miami, Florida, which is distributed throughout the State

of Florida.

Richard J. Ovelmen

Samuel A. Terilli

Office of the General Counsel

The Miami Herald Publishing Company

One Herald Plaza

Miami, Florida 33101

32. Minneapolis Star and Tribune Company—Minne-

apolis Star and Tribune Company is a Minnesota cor-

poration which publishes The Minneapolis Star and Trib-

12a

une, a seven-days-a-week newspaper which circulates

throughout the State of Minnesota.

Norton L. Armour

General Counsel

The Minneapolis Star and Tribune

429 Portland Avenue

Minneapolis, Minnesota 55488

32. National Association of Broadcasters—The Na-

tional Association of Broadcasters (“NAB”), organized

in 1922, is a non-profit incorporated association of radio

and television broadcast stations and networks. NAB

membership includes more than 4500 radio stations, 850

television stations, and the major commercial broadcast

networks. Among NAB’s members are more than 160

radio and television broadcasters in the Commonwealth

of Pennsylvania.

Henry L. Baumann

Steven A. Bookshester

National Association of Broadcasters

1771 “N” Street, NW

Washington, D.C. 20036

34. News and Observer Publishing Company—The

News and Observer Publishing Company is a North Car-

olina corporation whose principal place of business is

located in Raleigh, Wake County, North Carolina. The

company publishes The News & Observer, The Raleigh

Times, and 18 other newspapers throughout North Caro-

lina and South Carolina.

H. Hugh Stevens, Jr.

Sanford, Adams, McCullough & Beard

414 Fayetteville Street Mall

Raleigh, North Carolina 27602

Attorneys for the News and Observer

Publishing Company

18a

35. News-Journal Corporation—The News-Journal

Corporation, a Florida corporation, publishes the Daytona

Beach Morning Journal, the Daytona Beach Evening

News, and the Sunday News Journal, all of which are

published in Daytona Beach, Florida.

Thomas T. Cobb

Cobb & Cole

150 Magnolia Avenue

Daytona Beach, Florida 32015

Attorneys for News-Journal Corporation

36. North Carolina Press Association, Inc—The

North Carolina Press Association, Inc. (the “NCPA’”)

is a voluntary membership association chartered as a

non-profit corporation under the laws of North Carolina.

Its principal place of business is located at Suite 1100,

5 West Hargett Street, Raleigh, North Carolina 27602.

Its membership consists of approximately 55 daily news-

papers and 120 non-daily newspapers published through-

out North Carolina.

H. Hugh Stevens, Jr.

Sanford, Adams, McCullough & Beard

414 Fayetteville Street Mall

Raleigh, North Carolina 27602

Attorneys for the North Carolina Press

Association

37. North Dakota Newspaper Association—The North

Dakota Newspaper Association is a voluntary member-

ship association chartered as a non-profit corporation

under the laws of North Dakota. Its principal place of

business is located at Box 8137, University Station,

Grand Forks, North Dakota 58502. Its membership con-

sists of every newspaper published from the State of

North Dakota, including 10 daily newspapers and 87

non-daily newspapers.

l4a

Jack McDonald, Jr.

Wheeler, Wolf, Peterson, Schmitz,

McDonald & Johnson

220 North 4th Street

Bismarck, North Dakota 58502-2056

Attorneys for North Dakota Newspaper

Association

38. Oklahoma Publishing Company—The Oklahoma

Publishing Company publishes The Daily Oklahoman, The

Saturday Oklahoman & Times and The Sunday Okla-

homan, all of which are published in Oklahoma City,

Oklahoma.

Michael Minnis

Pierson, Ball & Dowd

Suite 1310

First Oklahoma Tower

210 West Park Avenue

Oklahoma City, Oklahoma 73102

Attorneys for Oklahoma Publishing Company

39. Omaha World-Herald Company—The Omaha

World-Herald Company publishes the Omaha World-

Herald, a daily newspaper in Omoha, Nebraska.

James L. Koley

McGill, Koley, Parsonage & Lanphier, P.C.

Suite 300

10010 Regency Circle

Omaha, Nebraska 68114

Attorneys for Omaha World-Herald Company

40. Radio-Television News Directors Association

(“RTNDA”)—RTNDA is a professional organization of

more than 2000 news directors and others who are active

in the supervising, reporting, and editing of news and

public affairs programming on radio and television, both

broadcast and cable.

15a

J. Laurent Scharff

Pierson, Ball & Dowd

1200 18th Street, N.W.

Washington, D.C. 20036

Attorneys for Radio-Television News

Directors Association

41. Richmond Newspapers, Inc.—Richmond Newspa-

pers, Inc., publishes a morning newspaper, the Richmond

Times-Dispatch, and an evening newspaper, The Rich-

mond News Leader (cumbined circulation in excess of

250,000 and Sunday morning circulation 230,878), which

are distributed in 21 cities and 71 counties throughout

the Commonwealth of Virginia.

Alexander Wellford

Christian, Barton, Epps, Brent

& Chappell

1200 Mutual Building

Richmond, Virginia 23219

Attorneys for Richmond Newspapers, Inc.

47. Salt Lake Tribune—The Salt Lake Tribune is a

seven-days-a-week morning newspaper published in Salt

Lake City, Utah, by Kearns-Tribune Corporation, a Utah

corporation.

Donald R. Holbrook

D. Miles Holman

Jones, Waldo, Holbrook & McDonough

170 South Main Street

Salt Lake City, Utah 84101

Attorneys for the Salt Lake Tribune

43. San Jose Mercury News*—The San Jose Mercury

News is a daily newspaper published in San Jose, Cali-

fornia by Knight-Ridder Newspapers, Inc., a Florida cor-

poration.

16a

Edward P. Davis, Jr.

Rankin, Oneal, Center, Luckhardt,

Lund & Hinshaw

Suite 300

2 West Santa Clara Street

San Jose, California 95115

Attorneys for San Jose Mercury News

44. Seattle Times Company—Seattle Times Com-

pany is a Delaware corporation with its principal place

of business in Seattle, Washington where it publishes

The Seattle Times, a daily newspaper.

P. Cameron DeVore

Davis, Wright, Todd, Riese & Jones

4200 Seattle First National Bank Building

Seattle, Washington 98154

Attorneys for Seattle Times Company

45. The Tampa Tribune—The Tampa Tribune is a

daily newspaper in Tampa, Florida, published by The

Tribune Company Inc., which is a subsidiary of Media

General, Inc.

Gregg D. Thomas

Holland & Knight

600 Florida Avenue

Tampa, Florida 33602

Attorneys for The Tampa Tribune

46. Times-Picayune Publishing Corporation—Times-

Picayune Publishing Corporation, a Louisiana corpora-

tion, publishes The Times-Picayune/States-Item, a daily

newspaper in New Orleans, Louisiana.

Jack M. Weiss

Rutledge C. Clement, Jr.

Phelps, Dunbar, Marks, Claverie & Sims

Texaco Center

400 Poydras Street, 30th Floor

New Orleans, Louisiana 70130

Attorneys for Times-Picayune Publishing

Corporation

17a

47. Times Publishing Company—The Times Pub-

lishing Company is the publisher of the St. Petersburg

Times and Evening Independent, daily newspapers which

are published in St. Petersburg, Florida.

George K. Rahdert

Rahdert, Anderson & Richardson

233 Third Street North

St. Petersburg, Florida 33701

Attorneys for Times Publishing Company,

publisher of the St. Petersburg Times

and Evening Independent

* These amici are divisions of Knight-Ridder Newspapers, Inc.,

which is the parent corporation of one of the Appellants, Philadel-

phia Newspapers, Inc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.