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

No. 84-1491

eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

— “

PHILADELPHIA NEWSPAPERS, INC., et al.,

Appellants,

Vv.

MAuRICE S. HEPPS, et al.,

Appellees

On Appeal from the Supreme Court of Pennsylvania

BRIEF OF THE

AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

DAVID M. SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.c. 20001

@ ofEZo v0

BEST AVAILABLE COPY

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-149]

PHILADELPHIA NEWSPAPERS, INC., et al.,

Appellants,

V.

Maurice S. HEPPS, et al.,

Appellees

On Appeal from the Supreme Court of Pennsylvania

MOTION OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

FOR LEAVE TO FILE A BRIEF AMICUS CURIAE

IN SUPPORT OF APPELLANTS

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”), a federation of

95 national and international labor organizations having

a total membership of approximately 13,500,000 working

men and women, moves the Court for leave to file the at-

tached brief amicus curiae in support of appellants. Ap-

pellees have refused to consent to the filing of said brief.

The AFL-CIO and its affiliated unions participate ac-

tively in the public dialogue on issues of concern to

workers at the local, state and national level. At issue

in this case is whether the First Amendment permits the

use of the libel laws to penalize those who speak on mat-

ters of public concern unless it is established that such

speech is false. The resolution of that issue is of pro-

found concern to all who participate in the debate on

public issues and to all who believe that such debate

should be uninhibited. Accordingly, the AFL-CIO seeks

leave to file the attached brief amicus curiae to demon-

strate that under the First Amendment, truthful state-

ments on matters of public concern are constitutionally

protected even if such statements are injurious to the rep-

utation of another, and that the First Amendment does

not allow damages to be awarded against one who speaks

on a matter of public concern in the absence of a proper

finding that the statement in question is false.

For the foregoing reasons this motion for leave to file

the attached brief amicus curiae should be granted.

Respectfully submitted,

DAVID M. SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

TABLE OF CONTENTS

SUMMARY OF ARGUMENT ..............------------------------

ARGUMENT ..........-------------ec--seeeesse00e0 iii iaiahiaanitinigtnsaeimencens

THE FIRST AMENDMENT DOES NOT ALLOW

THE AWARD OF DAMAGES IN A DEFAMA-

TION ACTION UNLESS IT IS ESTABLISHED

THAT THE DEFAMATORY STATEMENT IS

FALSE AND THEREFORE UNPROTECTED

BY THE FIRST AMENDMENT ..................----------

CONCLUSION ........------0-----ceeceeesenceesccesncessonenensesnnseseneesnesees

ii

TABLE OF AUTHORITIES

CASES: Page

Addington v. Texas, 441 U.S. 418 (1979) .........-.-.---- 9

Bantam Books Inc. v. Sullivan, 372 U.S. 58 (1963) .. 14

Beckley Newspapers v. Hanks, 389 U.S. 81 (1967) .. 11

Blount v. Rizzi, 400 U.S. 410 (1971) ................-...----. 15

Bose Corp. v. Consumers Union, —— U.S. ——, 52

L.W. 4513 (April 30, 1984) ...............---------------------- 12

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

; ) a ne 5

Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980)............ 10

Cu.tis Publishing Co. v. Butts, 388 U.S. 130

(1967) ...... Pi a ee eeeamneetin 6, 7

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

US. , 53 L.W. 4866 (June 26, 1985)... 7

First National Bank of Boston v. Billotti, 435 U.S.

TED, TIC (1DTB) .....2.-00---c-eneeene-cornnreenernncenesennennseeees 7

Freedman v. Maryland, 380 U. S., 51 (1965) ........... 3,14

Garrison v. Louisiana, 379 U.S. 64 (1964) ............... 5,9

Garrity v. New Jersey, 385 U.S. 493 (1967)...........-.- 10

Gertz v. Robert Welch, Inc., 418 U.5. 323 (1974) ....passim

Greenbelt Corp. Pub. Ass’n v. Bresler, 398 U.S. 6

CDT anccececeecscceceenicreeeenssnsecentscenannsenenssentnscssnaounsinen 5, 11

Herbert v. Lando, 441 U.S. 153 (1979).....................- 1, 5, 11

Hutchinson v. Proxmire, 443 U.S. 111 (1979) ........ 6

Lavine v. Milne, 424 U.S. 577 (1976) .............-...---... 8

NAACP v. Button, 371 U.S. 415 (1963) ................... 4

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

CD oo vceccccseincecs ccnsosceninbaaesintonntigmnnntenatibnnsatensan passim

Rosenblatt v. Baer, 389 U.S. 75 (1966). laa Liaiaciaesitiedtaiie 5

Southeastern Promotions Ltd. v. Conrad, 420 U.S.

OG CTI necccnctsccissnsnsvnenetenttainnnittiannaninscemacenetines 15

Speiser v. Randall, 357 U.S. 513 (1958) -..............-... 3, 8,15

St. Amant v. Thompson, 390 U.S. 727 (1968) ........ 5, 6, 11

Texas Department of Community Affairs v. Bur-

dine, 450 U.S. 248 (1981) »..............----...----0-+--eeeeeee- 14

Thornhill v. Alabama, 310 U.S. 88 (1940) .............. 7,9

Time Inc. v. Hill, 385 U.S. 374 (1967) .................--. 11

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748 (1976)... 10

STATUTES:

Pennsylvania Rules of Civil Procedure 4001-4020. 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1491

PHILADELPHIA NEWSPAPERS, INC., et al.,

Appellants,

v.

MAuRICcE S. HEPPS, et al.,

Appellees

On Appeal from the Supreme Court of Pennsylvania

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”) submits this

brief amicus curiae contingent upon the granting of the

foregoing motion for leave to file said brief. The interest

of the amicus curiae is stated in that motion.

SUMMARY OF ARGUMENT

The question presented here is unlike the ones that have

been posed to this Court in the cases following New York

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

all involved speech which was proven (or at least as-

sumed) to be false and which therefore “carrie[d] no

First Amendment credentials,” Herbert v. Lando, 441

2

U.S. 153, 171 (1979). The issue in those cases was

whether to “extend a measure of strategic protection,”

Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974)

(emphasis added), to such speech in order not to chill the

dissemination of truthful speech. In this case, in contrast,

what is at issue is one aspect of the procedures for deter-

mining whether speech on a matter of public concern is

true or false. The resolution of that issue does not turn

on the prophylactic considerations that have been deter-

minative in past cases, but rather on more elementary

principles of First Amendment jurisprudence. Part A,

pp. 4-7 infra.

The First Amendment embodies our “profound national

commitment to the principle that debate on public issue

should be uninhibited, robust and wide-open.” New York

Times, supra, 376 U.S. at 270. Given this commitment,

the Court has concluded that the interest in truthful ex-

pression on matters of public concern outweighs the

countervailing interests of those whose reputation may be

injured by such expression, regardless of the speaker’s mo-

tivation in making the truthful publication. Because true

statements on public issues are constitutionally protected,

their publication may not form the basis for an award

of damages. And this in turn requires that, in a defama-

tion action, before a defendant/speaker may be required

to pay damages on account of his speech, the plaintiff

must prove that the speech is false and therefore un-

protected. Any other rule would permit speech to be sanc-

tioned, through civil damages, absent proof that (or

where the evidence is in equipoise as to whether) the

speech is false and therefore stands outside the protective

umbrella of the First Amendment. Part B, pp. 8-11,

infra.

In the context of the prophylactic rules of culpability

formulated in New York Times and its progeny the Court

has recognized as much. Those cases hold that where non-

culpable, false speech is entitled to “strategic protection,”

the burden of proving culpability rests on the plaintiff. If

3

a plaintiff is required to prove that a defamatory false-

hood does not qualify for “strategic protection,” it follows

a fortiori that the plaintiff must also be required to prove

that a defamatory statement is false and therefore does

not qualify for the protection to which truthful speech is

entitled in its own right. Part C, pp. 11-12 infra.

The Pennsylvania Supreme Court’s contrary view rests

on its conclusion that there is no “legitimate constitu-

tionally protected interest in condoning the media’s mali-

cious or negligent discharge” of its informational func-

tion. But given the values and purposes of the First

Amendment, there is an overriding interest in disseminat-

ing truthful information, and it is contrary to the First

Amendment to punish the publication of truthful infor-

mation simply because the media did not act responsibly

in deciding to publish the information. Part D, pp.

12-14, infra.

This conclusion is confirmed by decisions of the Court

involving analogous First Amendment questions. In the

obscenity cases, for example, the Court has concluded that

“the burden of proving that the [speech] is unprotected

expression must rest on the censor.” Freedman v. Mary-

land, 380 U.S. 51, 58 (1965). And in Speiser v. Randall,

357 U.S. 513 (1958), the Court held that California had

violated the First Amendment by requiring taxpayers to

prove that they had not engaged in unprotected expres-

sion in order to qualify for a tax exemption; the First

Amendment, the Court concluded, required the State to

assume the burden of persuasion on that issue. The rea-

soning of those decisions is fully applicable here. Part E,

pp. 14-16 infra.

4

ARGUMENT

THE FIRST AMENDMENT DOES NOT ALLOW THE

AWARD OF DAMAGES IN A DEFAMATION ACTION

UNLESS THE PLAINTIFF ESTABLISHES THAT

THE DEFAMATORY STATEMENT IS FALSE

The brightness of the constitutional principles stated in

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

has been tarnished by twenty years of litigation generated

by the tension between our “society’s interest in ‘un-

inhibited robust and wide-open’ debate on public issues”

and the “legitimate state interest” in preserving “the

individual’s right to the protection of his own good

name” from “the harm inflicted . . . by defamatory false-

hood,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 341

(1974). The instant case permits us to see again, cleaned

of that coating, the unalloyed truth of New York Times’

most basic teaching: “What a state may not constitu-

tionally bring about by means of criminal statute is like-

wise beyond the reach of its civil law of libel.” 376 U.S.

at 277. As we show below, so long as that much is

granted—so long as it is recognized that the term “libel”

is no talistaan that forecloses First Amendment analysis

and that “a State cannot foreclose the exercise of con-

stitutional rights by mere labels,” NAACP v. Button, 371

U.S. 415, 429 (1963)— it is plain that the Pennsylvania

rule at issue here cuts deeply into free speech on public

issues and is not justified by any countervailing state

interest.

A. The question presented here is unlike the ones that

have been posed to and have divided this Court in the

years since New York Times.’ Those disputes all involved

speech which was held to be both defamatory and false.

1 As the court below noted, there is language in several of this

Court’s prior decisions which appears to address the issue posed

here and to “state[] the New York Times holding as requiring proof

of falsity as part of the plaintiff’s prima facie case.” Pet. App. A-11

5

In this case what is at issue is precisely whether the

speech in question is true or false.

This difference is of central legal significance because,

as the Court repeatedly has concluded, “there is no con-

stitutional value in false statements of fact.” Gertz,

supra, 418 U.S. at 340. “Neither lies nor false communi-

cations serve the ends of the First Amendment,” St.

Amant v. Thompson, 390 U.S. 727, 732 (1968), and thus

“[s]preading false information in and of itself carries no

First Amendment credentials,” Herbert v. Lando, 441

U.S. 158, 171 (1979). Rather, “the intended lie [and]

the careless error . . . belong to that category of utter-

ances which ‘are no essential part of any exposition of

ideas, and are of such slight social value as a step to

truth that any benefit that may be derived from them

n.4, citing Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (“a public

official might be allowed the civil remedy only if he establishes that

the utterance was false”); Rosenblatt v. Baer, 389 U.S. 75, 84

(1966) ; Greenbelt Corp. Pub. Ass'n v. Bresler, 398 U.S. 6, 8 (1970).

Most recently, in Herbert v. Lando, 441 U.S. 153, 175-76 (1979),

the Court stated:

Although defamation litigation . . . is an ancient phenomenon,

it is true that our cases from New York Times to Gertz have

considerably changed the profile of such cases. In years gone

by, plaintiffs made out a prima facie case by proving the dam-

aging publication. Truth and privileges were defenses. .. . The

plaintiff’s burden is now considerably expanded. Jn every or

almost every case, the plaintiff must focus on the editorial

process and prove a false publication attended by some degree

of culpability on the part of the publisher. [Emphasis added ]

At the same time, as the court below also noted, there is dictum

in other opinions that looks the other way, or at least is unclear.

E.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490 (1975)

(“the defense of truth is constitutionally required where the sub-

ject of the publication is a public official or public figure. What is

more, the defamed public official or public figure must prove not

only that the publication is false but it was knowingly so or was

circulated with reckless disregard for its truth or falsity”) (em-

phasis added).

For purposes of this brief, we treat the issue presented here as

one of first impression in this Court.

6

is clearly outweighed by the social interest in order and

morality.’’’ Gertz, supra, 418 U.S. at 340.

Because that is so, the issue in this Court’s prior cases

has been whether to “extend a measure of strategic pro-

tection to defamatory falsehood,” in order to “assure to

freedom of speech and press that ‘breathing space’ essen-

tial to their fruitful exercise.” Jd. at 342 (emphasis

added). The Court has reasoned that “[a]lthough the

erroneous statement of fact is not worthy of constitu-

tional protection, it is nonetheless inevitable in free de-

bate” and that “[t]he First Amendment requires that

we protect some falsehood in order to protect speech that

matters.” Id. at 340-41. See also St. Amant v. Thomp-

son, supra, 390 U.S. at 732.’

To determine how much “strategic protection” to afford

false speech in order to “protect speech that matters,”

the Court “has sought to define the accommodation re-

quired to assure the vigorous debate on public issues that

the First Amendment was designed to protect while at

the same time affording protection to the reputations of

individuals.” Hutchinson v. Proxmire, 443 U.S. 111, 133-

34 (1979). Through that process of accommodation the

Court has formulated separate rules of constitutional

privilige for: defamation concerning a public official, New

York Times Co. v. Sullivan, supra, or public figure,

2Compare Curtis Publishing Co. v. Butts, 388 U.S. 130, 152

(1967) (opinion of Harlan, J.):

[S]ome antithesis between freedom of speech and press and

libel actions persists, for libel remains premised on the content

of speech and limits the freedom of the publisher to express

certain sentiments, at least without guaranteeing legal proof of

their substantial accuracy.

While the truth of the underlying facts might be said to

mark the line between publications which are of significant

social value and those which might be suppressed without

serious socia! harm, and thus resolve the antithesis on a neutral

ground, we have rejected . . . the argument that a finding of

falsity alone should strip protections from the publisher.

7

Curtis Publishing Co. v. Butts, supra; defamation con-

cerning a private figure involved in a matter of public

concern, Gertz, supra; and defamation concerning a pri-

vate figure and a matter not of public concern, Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., —— U.S.

, 53 L.W. 4866 (June 26, 1985).

This case in contrast to all the prior New York Times

cases does not involve the question of whether to extend

“strategic protection” to admittedly (or assumedly) false

speech. Rather, at issue here is one aspect of the pro-

cedures for determining whether defamatory speech is

true or false—viz., the allocation of the burden of per-

suasion on the question of truth or falsity. And the issue

here can be further refined to the context of defamatory

speech on a matter of public concern because that is the

factual context in which this case arises: the newspaper

articles in question concern (alleged) ties between a

liquor store chain and organized crime and the (alleged)

use of political connections to enable this chain to con-

tinue to do business in violation of state law. The sub-

ject matter of these articles thus falls easily within the

Court’s test for determining “public concern”: “ ‘Free-

dom of discussion; if it would fulfill its historic function

in this nation, must embrace all issues about which in-

formation is needed or appropriate to enable the members

of society to cope with the exigencies of their period.’ ”

First National Bank of Boston v. Billotti, 435 U.S. 765,

776 (1978), quoting Thornhill v. Alabama, 310 U.S. 88,

102 (1940). |

The resolution of the question here does not, in our

judgment, turn on the prophylactic considerations that

have been determinative in past cases. Rather, as we

proceed to show, this case can and should be decided on

the basis of more elementary principles of First Amend-

ment jurisprudence.®

’This is not to deny that a holding requiring defendants to

assume the burden of proving truth in order to avoid liability for

defamatory statements would have a chilling effect on the dissemina-

tion of truthful information. Thus, this case could be decided by

8

B. We start from the proposition that “[t]o experi-

enced lawyers it is commonplace that the outcome of a

lawsuit—and lence the vindication of legal rights—

depends . . . often on how the factfinder appraises the

facts.” Speiser v. Randall, 357 U.S. 513, 520 (1958).

“Thus the procedures by which the facts of the case are

determined assume an importance fully as great as the

validity of the substantive rule of law to be applied.” Id.

And in particular, “[w]here the burden of proof lies on

a given issue is, of course, rarely without consequence

and frequently may be dispositive to the outcome of the

litigation.” Lavine v. Milne, 424 U.S. 577, 585 (1976).

In the context of a defamation action, if the burden of

persuasion on the issue of truth or falsity were placed on

the defendant, a plaintiff would be entitled to recover dam-

ages from a speaker based on evidence that a particular

statement is injurious to the plaintiff’s reputation but

absent any evidence that the statement is false.* Such an

allocation of the burden of persuasion would likewise per-

mit recovery where the evidence is in equipoise as to

whether the statement is true or false. And such an

allocation of the burden of persuasion would increase the

applying the mode of analysis used in e.g. Gertz and Dun & Brad-

street, viz., balancing that chilling effect against the injury to

reputation that could result from placing the burden of persuasion

on the plaintiff. We believe that the threat to free expression that

would result from requiring defendants to prove truth to avoid liabil-

ity far outweighs the threat to the reputation that would result from

requiring plaintiffs to prove falsity in order to establish liability.

But as we show in text, it is not necessary to engage in this balanc-

ing process to conclude that the First Amendment requires that the

burden of persuasion with respect to truth or falsity be allocated

to the plaintiff.

4 Of course, if the plaintiff were a public official or public figure, or

if the speech involved a matter of puvolic concern, the plaintiff also

would be required to prove culpability on the defendant’s part. See

pp. 11-12 infra. But as the court below correctly observed, the

issues of culpability and truth or falsity are “not synonymous”:

“Tal plaintiff can demonstrate negligence [or recklessness] in the

manner in which the material was gathered, regardless of its truth

or falsity.” App. A-18, A-19 n.13.

9

risk that damages would be awarded for speech that, in

fact, is truthful.’ As we proceed to show, the First

Amendment does not allow these results.

The First Amendment embodies our “profound national

commitment to the principle that debate on public issues

should be uninhibited robust and wide-open.” New York

Times, supra, 376 U.S. at 270. “The. . . Amendment,

said Judge Learned Hand, ‘presupposes that right con-

clusions are more likely to be gathered out of a multi-

tude of tongues than through any kind of authoritative

selection. To many this is, and always will be, folly; but

we have staked upon it our all.’” Jd.

Given this commitment, the Court has concluded that

the interest in truthful expression on matters of public

concern outweighs the countervailing interests of those

whose reputation may be injured by such expression.

“The freedom of speech and of the press guaranteed by

the Constitution embraces at the least the liberty to dis-

cuss publicly and truthfully all matters of public concern

without previous restraint or fear of subsequent punish-

ment.” Thornhill v. Alabama, supra, 310 U.S. at 101.

And this is so regardless of the speaker’s motives in mak-

ing the truthful publication. That is the central teaching

of Garrison v. Louisiana, 379 U.S. 64, 73 (1964) :

If upon a lawful occasion for making a publication,

[the publisher] has published the truth, and no more,

there is no sound principle which can make him

liable, even if he was actuated by express malice... .

It has been said that it is lawful to publish truth

from good motives, and for justifiable ends. But this

rule is too narrow. If there is a lawful occasion—a

legal right to make a publication—and the matter

5 Although under the preponderance of the evidence standard

applicable in most civil litigation the “litigants . . . share the

risk of error in roughly equal fashion,” Addington v. Texas, 441

U.S. 418, 423 (1979), that standard tilts the risk of error in the

direction of the party upon whom the burden is placed, as that party

will lose in every case in which the factfinder is in doubt.

10

true, the end is justifiable, and that, in such case,

must be sufficient. [Emphasis added]

Indeed, it is difficult to imagine what speech the First

Amendment would protect if not truthful speech about

matters of public concern.

Because true statements on public issues are constitu-

tionally protected, their publication may not form the

basis for an award of damages; this is part of what it

means to say that the speech is protected. As the Court

stated in Garrity v. New Jersey, 385 U.S. 493, 500

(1967), “There are rights of constitutional stature whose

exercise a State may not condition by the exaction of a

price... Assertion of a First Amendment right is [one

such right].” Indeed, that is the central lesson of New

York Times as well: “civil libel is a form of regulation,”

thus “what a State may not constitutionally bring about

by means of a criminal statute is likewise beyond the

reach of its civil law of libel.” 376 U.S. at 277.

It follows that, in a defamation action, before a de-

fendant/speaker may be required to pay damages on ac-

count of his speech, it must be established that the de-

fendant’s speech is false and therefore unprotected.

And this in turn requires that the plaintiff bear the

burden of persuasion on the issue of truth or falsity.

Any other rule would permit the State to “exact a price”

and thereby sanction speech, through civil damages, ab-

6A similar line has been drawn in the decisions involving

commercial speech. The Court has concluded that while truthful

advertising is protected, Virginia State Board of Pharmacy v. Vir-

ginia Citizens Consumer Council, 425 U.S. 748 (1976), false com-

mercial speech is not because such speech does not advance the

“First Amendment concern for commercial speech [which] is based

on the information function of advertising,” Central Hudson Gas

& Electric Corp. v. Public Service Commission, 447 U.S. 557, 562

(1980). The Court has distinguished false commercial speech from

false speech on matters of public concern, however, on the ground

that the former “is not ‘particularly susceptible to being crushed by

overbroad regulation,’” id. at 562 n.6, and therefore the Court has

decided that the Constitution does not require that any “strategic

protection” be extended to false commercial speech.

11

sent proof that—or where the evidence is in equipoise as

to whether—the speech stands outside the protective um-

brella of the First Amendment.

C. In the context of the rules of culpability formulated

in New York Times and its progeny the Court has recog-

nized as much. As previously noted, to provide “breath-

ing space” for truthful expression, the Court has extended

“strategic protection” to false, defamatory speech if the

speech is uttered without fault; the degree of culpa-

bility required to cause a defamatory falsehood to lose its

“strategic protection” varies with the nature of the false-

hood and the subject matter of the speech. Pp. 6-7

supra. But whatever the degree of culpability that is re-

quired before particular false speech is deemed to be

unprotected, the Court has made clear that the burden of

proving such culpability rests on the plaintiff.

The roots of this rule can be traced to New York Times

itself where the Court concluded that “ ‘the showing of

malice required for the forfeiture of the [constitutional]

privilege is not presumed but is a matter of proof by the

plaintiff ...’” 376 U.S. at 284 (emphasis added). On

that basis the Court reversed the judgment for the

plaintiffs in that case because “the proof presented

to show actual malice lacks the convincing clarity

which the constitution demands.” Jd. at 285. In subse-

quent cases involving public officials and public figures

the Court has reiterated and applied this holding to reverse

judgments where the plaintiffs had failed to prove malice.’

In Herbert v. Lando, supra, the Court, recognizing that

“New York Times and its progeny ma[ke] it essential to

7 See, e.g., Time Inc. v. Hill, 385 U.S. 374, 387-88 (1967) ; Beckley

Newspapers v. Hanks, 389 U.S. 81, 83 (1967) ; St. Amant v. Thomp-

son, supra, 390 U.S. at 730; Greenbelt Pub. Assn. v. Bresler, supra,

398 U.S. at 8. We do not here address the question whether

falsity, like culpability, must be proven with “convincing clarity,”

viz., by “clear and convincing evidence,” as that question is not

presented by this case: the jury here ruled for the defendants pur-

suant to an instruction requiring that the plaintiffs prove falsity

only by a preponderance of the evidence.

12

proving liability that the plaintiff focus on the conduct

and state of mind of the defendant,” 441 U.S. at 160,

upheld the right of plaintiffs to take discovery from de-

fendants on these issues lest “liability is to be completely

foreclosed,” id. And in Bose Corp. v. Consumers Union,

— US. ——, 52 L.W. 4518, 4520 (April 30, 1984),

the Court added to the requirement that plaintiffs prove

culpability the further requirement that the appellate

courts conduct an independent review of the sufficiency of

the plaintiff’s evidence of fault.

It follows a fortiori from the decisions just reviewed

that the burden of proving falsity must be placed upon

the plaintiff. If a plaintiff is required to prove that a

defamatory falsehood—which “in and of itself carries no

First Amendment credentials,” Herbert v. Lando, supra,

441 U.S. at 171—does not qualify for the “strategic pro-

tection” afforded by New Yo k Times and its progeny,

necessarily the plaintiff must also be required to prove

that a defamatory statement is false and therefore does

not qualify for the protection to which truthful speech

is entitled in its own right because of its transcendent

value in furthering “uninhibited, robust and wide-open

debate on public issues.” New York Times, supra, 376

U.S. at 270.

In other words, before damages may be awarded in a

defamation action, the evidence must suffice “vo strip the

utterances of the First Amendment protection,” Bose

Corp., supra, 52 L.W. at 4520, which at the least means

that the evidence must suffice to establish falsity. Proof

of falsity thus is required “to cross the constitutional

threshold that bars the entry of any judgment” against

truthful speech. /d.

D. The Pennsylvania Supreme Court viewed the prob-

lem here in precisely the opposite way. That court rea-

soned that because a plaintiff must prove malice or negli-

gence, the plaintiff should not also be required to prove

falsity:

13

The “breathing space” requirement of the First

Amendment has not been extended, nor do we be-

lieve it can be reasonably extended, to condone or to

encourage irresponsible conduct by the media in its

exercise of informing the public of newsworthy

events. Nor can we conceive of a legitimate con-

stitutionally protected interest in condoning the

media’s malicious or negligent discharge of this re-

sponsibility. [Pet. App. at A-21]

But as we have seen, there is a “legitimate constitu-

tional interest”—indeed, given the values and purposes

of the First Amendment, an overriding interest—in the

dissemination of truthful information. And that interest

exists even where the disseminator did not use due care

(or acted recklessly) in ascertaining whether the state-

ment he planned to disseminate is true. Thus, while

there is no reason to “condone or to encourage irrespon-

sible conduct by the media,” it would be contrary to the

First Amendment to punish the publication of truthful

information simply because the media did not act re-

sponsibly in gathering the information. For First Amend-

ment purposes the requirement of “responsible media con-

duct” is a means toward the end of truthful media speech,

not an end in itself. The court below thus confused means

and ends in holding that “irresponsible conduct” in itself

causes truthful speech to lose its constitutional protection.

The Pennsylvania Supreme Court also voiced a prac-

tical concern about placing the burden of persuasion with

respect to the issue of truth or falsity on the plaintiff:

“where the [defamatory] accusation is totally general

and without the specificity necessary for a response” the

plaintiff would be severely handicapped, in that court’s

view, if he/she had to prove the accusation to be false.

Pet. App. A-5. The Pennsylvania Court recognized that

this “evidentiary consideration[] . . . cannot support the

presumption of falsity if it is offensive to constitutional

mandate,” id. A-8, and hence cannot be dispositive here.

14

But even on its own terms, that court’s argument can-

not withstand analysis.

In many if not most cases, the statements which form

the basis for a defamation lawsuit will be specific enough

that the Pennsylvania Supreme Court’s concern simply

will not apply; in such cases the plaintiff will be at least

as well situated to prove falsity as the defendant will be

to prove truth. Moreover, even where a defamatory state-

ment is “totally general,” the existence of the discovery

process provided for in Pennsylvania civil procedure *

ordinarily will enable the plaintiff, by the time of the

trial, to obtain “the specificity necessary for a response.”

And even in the rare case in which such specificity is

still lacking at the time of trial, the problem the court

below hypothesized could be resolved by placing the

initial burden of production on the defendant to articu-

late the factual basis for the defamatory accusation,

thereby enabling the plaintiff to respond. Cf. Texas De-

partment of Community Affairs v. Burdine, 450 US.

248 (1981). In no event does the concern the Pennsyl-

vania Supreme Court raised warrant placing the risk of

nonpersuasion with respect to truth or falsity on the

defendant and thereby permitting libel judgments to be

entered where the evidence is in equipose as to whether

the statement is true and therefore entitled to constitu-

tional protection.

E. This conclusion is confirmed by decisions of this

Court involving analogous First Amendment questions.

For example, in cases involving the regulation of ob-

scenity, the Court has reviewed not only the substantive

standards applied by the States but also has concluded

that the Constitution “requires that regulation by the

States of obscenity conform to procedures that will en-

sure against the curtailment of constitutionally protected

expression. . .” Bantam Books Inc. v. Sullivan, 372 U.S.

58, 66 (1963). In particular, in Freedman v. Maryland,

8 See Pennsylvania Rules of Civ. Procedure, 4001-4020.

15

380 U.S. 51, 58 (1965), the Court concluded that “the

burden of proving that the [speech] is unprotected expres-

sion must rest on the censor.” The Court reaffirmed

that holding in Blount v. Rizzi, 400 U.S. 410, 417 (1971)

and again in Southeastern Promotions Ltd. v. Conrad,

420 U.S. 546, 560 (1975).

Perhaps most closely on point is this Court’s decision

in Speiser v. Randall, supra, on which the obscenity cases

relied. In Speiser, California had denied a tax exemption

to certain individuals because they had failed to prove

that they had not engaged in certain specified speech.

This Court concluded that California had violated the

First Amendment is so doing. The Court “assume([d]

without deciding that California may deny tax exemp-

tions to persons who engage in the proscribed speech.”

357 U.S. at 520. But the Court concluded that California

could not impose the burden of persuasion on the individ-

uals to prove that they had not done so:

As cases decided in this Court have abundantly dem-

onstrated, the line between speech unconditionally

guaranteed and speech which may legitimately be

regulated, suppressed, or punished is finely drawn.

The separation of legitimate from illegitimate speech

calls for more sensitive tools than California has

supplied. Jn all kinds of litigation it is plain that

where the burden of proof lies may be decisive of the

outcome. There is always in litigation a margin of

error, representing error in factfinding, which both

parties take into account. Where one party has at

stake an interest of transcending value—as a crimi-

nal defendant his liberty—this margin of error is

reduced as to him by the process of placing on the

other party the burden .. . of persuading the fact-

finder at the conclusion of the trial of his guilt

beyond a reasonable doubt. Due process commands

that no man shall lose his liberty unless the Govern-

ment has borne the burden of producing the evidence

and convincing the factfinder of his guilt. Where the

transcendent value of speech is involved, due process

16

certeinly requires in the circumstances of this case

that the State bear the burden of persuasion...

[357 U.S. at 526-27; emphasis added; citations omit-

ted. |

|

Here, too, because “the transcendent value of speech is

involved,” the Constitution requires that he who would

exact damages for such speech must bear the burden of

persuasion on the issue of falsity which is the first hall-

mark of whether the speech is protected by the First

Amendment or unprotected.

CONCLUSION

For the foregoing reasons, the judgment of the Penn-

sylvania Supreme Court should be reversed.

Respectfully submitted,

DAVID M. SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390