Amicus Curiae Brief — Anderson v. Liberty Lobby

BEST AVAILABLE COPY arene con

BOURDETTE, BENJAMIN

& WEILL

| FILLED

No. 84-1602 AUG 1@ 1865

IN THE JOSEPH F SPaiOh. JR

CLE

SUPREME COUR

OF THE UNITED STATES

October Term, 1984

JACK ANDERSON, THE INVESTIGATOR

PUBLISHING CO., and BILL E. ADKINS,

Petitioners,

vs.

LIBERTY LOBBY, INC. and WILLIS A,

CARTO,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE IN SUPPORT OF

RESPONDENTS, AND BRIEF OF AMICI

CURIAE THE SYNANON CHURCH AND

CHARLES E. DEDERICH IN SUPPORT OF

POSITION OF RESPONDENTS

PHILIP C. BOURDETTE JONATHAN W. LUBELL

DAVID R. BENJAMIN

ANDREW J. WEILL

PO. Box 42 (212) 757-4000

Badger, California 93603

(209) 337-2885

Attorneys for Amici Curiae

The Syneron Church and Charles E. Dederich

Lawyers Brief Service, Inc / Lege! Publishers / (21) 3834657

COHN, GLICKSTEIN, LURIE,

OSTRIN, LUBELL & LUBELL

1370 Avenue of the Americas

New York, New York 10019

TOPICAL INDEX

TABLE OF AUTHORITIES o.oo

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE IN SUPPORT OF

ee -

BRIEF Or AMICI CURIAE IN SUPPORT OF

POSITION OF RESPONDENTS

SUMMARY OF ARGUMENT

eee

I. THE STANDARD OF PROOF ON A

MOTION FOR SUMMARY JUDGMENT

IS NOT MANDATED BY THE FIRST

REESEEEIECS cnn

Il. IT iS NOW URGENT FOR THIS COURT

TO STATE CLEARLY AND UNEQUIV.-

OCALLY THAT STATES HAVE A VALU-

ABLE, RECOGNIZABLE INTEREST IN

PROTECTING THE REPUTATIONS OF

THEIR CITIZENS, THAT THERE IS

CONSTITUTIONAL VALUE IN ALLOW.

ING CITIZENS TO TAKE TRIABLE

QUESTIONS OF ACTUAL MALICE TOA

JURY, AND THAT MOTIONS FOR SUM-

MARY JUDGMENT IN LIBEL CASES ON

THE ACTUAL MALICE QUESTION ARE

GENERALLY DISFAVORED BECAUSE

THEY CALL INTO QUESTION THE

STATE OF MIND OF THE CENTRAL

ee |

ee .

Page

16

26

TABLE OF AUTHORITIES

Cases

Addington v Texas

441 US. 418, 9 SCt. 184, © LEd2d

323 (1979 ..... . 18, 21

Agosto v Immigration & Naturalization Service

436 US. 748, 98 S.Ct. 2081, 56 L.Ed2d

0 14

Attorney General of the United States v. Irish

People

395 F Supp. 114 (DDC. 1984) ...................... 4

Berkey v. Delia

287 Md. 32, 413 Ald 170 (19%) 7

Calder v. Jones

US, 104 §. Ct.1482, 79 L.Ed2l2d #4

CC 28

Clark v American Broadcasting Companies, Inc.

684 F2d 1208 (6th Cir. 1982), cert.

denied, 460 US. 1040, 103 S.Ct. 1433, 75

Se COED CED cerernresecrersremremeseeneeseesee 7

Collins v Brigman

428 So.2d 373 (Fla. Dist. Ct. App. 1983) ?

Collord v. Cooley

92 Idaho 789, 451 P2d 535 (1969) _.................. 4

Community Medical Services of Clearfield, Inc. v.

Local 2665, American Federation of State,

County and Municipal Employees, AFL-CIO

437 A.2d 23 (Pa. Super. Ct. 1981) 7

Credit Union of America v. Myers

2@ Kan. 773, 676, P.2d 99 (1984) .......cccccen 4

Dienes v. Associated Newspapers, Inc.

137 Mich.App. 272, 358 N.W.2d 562

GIRS ance 7

Di Lorenzo v. New York News, Inc.

81 AD.2d 844, 432 N.Y.S.2d 483 (1980) ........... 7

Dugan v. First Nat. Bank in Wichita

227 Kan. 201, 606 P.2d 1009 (1980) ................... 4

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

US, 105 S.Ct. 2939, 86 L.Ed.2d 593

0 8

Floyd U. L.) v. Industrial Development Board of

City of Dothan

A, ys 5

Gerstein v. Pugh

420 US. 103, 95 S.Ct. 834, 43 LEd2d M4

(Ea 15

Herbert v. Lando

441 US. 153, 99 S.Ct. 1635, 60 L.Ed.2d

a Se 8, 9, 10, 23

Hibtds v. Chandler

684 $W.2d 310 (Ky. Ct. App. 1985) .................. 5

Hutchinson v. Proxmire

443 US. 111, 99 S.Ct. 2675,

GB B.026 G68 CIETD cnnnninmciiitiemat 2, 25

3}. C. Freeman v. Saxton

240 Ga. 309, 240 S.E.2d 708 (1977) ................. 4

Joseph v. Xerox Corp.

$94 F Supp. 330 (D.D.C. 1984) occccccccccsesseseeeenneee 6

a §Y ==

Kline v. Clinton

103 Idaho 116, 645 P.2d 350 (1982) oo... 4

Liberty Lobby v. Anderson

746 F.2d 1563 (1984), cert. granted,

—US—, 105 S.Ct. 2672

86 L.Ed.2d 691 (1985) ........ 3, 6, 7, 8, 15, 18, 24

Nader v. de Toledano

408 A.2d 31 (D.C. App. 1979),

cert. denied, 444 U.S. 1078, 100 S.Ct.

1028, G2 L.BG.2d 761 (198) ..........cccccccccceceesess 5, 6

New York Times Company v. Sullivan

376 US. 254, 8 S.Ct. 710, 11 L.Ed.2d

Re 2, 12, 17, 25

Pace v. McGrath

378 F.Supp. 140 (D.Md. 1974) .....cccccccccccccccceeeeeees 7

Poller v. Columbia Broadcasting System, Inc.

368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458

EE 17

Reader's Digest Assn. v. Superior Court

37 Cal.3d 244, 208 Cal.Rptr. 137, 690

PBB GOR CIDBG) ccccescccccccsccscceccsccccsccsccscoccscneces 2, 5, 25

Steadman v. Turner

84 N.M. 738, S07 P.2d 799 (1973) ooocccccccccees 4

Wasserman v. Time, Inc.

424 F.2d°920 (D.C. Cir 1970),

cert. denied, 398 U.S. 940, 90 S.C:. 1844,

Eee 5

Webbe v. McGhie Land Title Co.

F* B Fy Ce ee ,, 4

Westmoreland v. CBS Inc.

$96 F.Supp. 1170 (S.D.N.Y. 1984) cocoon 8

Yiamouyiannis v. Consumers U. of the United

States

619 F.2d 932 (2d Cir. 1980), cert. denied,

449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d

GG COGTD cecescsssssssssssseccsssscnnsescszesesesaseccsssscssencessncesesseece 7

Constitution

United States Constitution First Amendment ..... 3, 4, 8, 17,

21, 25

United States Constitution, Fourth Amendment .............. 15

Statutes and Other Authorities

6 J. Moore, Moore’s Federal Practice .................ccccccccceeeeees 14

No. 84-1602

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1984

JACK ANDERSON, THE INVESTIGATOR

PUBLISHING CO., and BILL E. ADKINS,

Petitioners,

vs.

LIBERTY LOBBY, INC. and WILLIS A.

CARTO,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE IN SUPPORT OF

RESPONDENTS

The Synanon Church and Mr. Charles E. Dederich

hereby respectfully move for leave to file the attached brief

amici curiae in this case.

The amici are petitioners in a libel case now pending

before this Court on petition for writ of certiorari, entitled

The Synanon Church, et al. v. Reader’s Digest Association,

Inc. et al., No. 84-1304 (hereinafter, “Synanon v. RDA’’).

The issue of the proper standards to be applied in a motion

for summary judgment in defamation cases is one of the

issues specifically presented by amici’s petition. Resolution

of this issue could have a direct and immediate effect on

amici’s petition and, therefore, amici have a real and

continuing interest in the present case. For example, the

decision of the California Supreme Court could be reversed

based on a decision in this case. The relationship between

the issue in the present case and the issues presented in

amici’s petition is underscored by the fact that Reader's

Digest Association, Inc., one of the respondents to amici’s

petition, has submitted a motion for leave to file a brief of

amicus curiae in this case. (It should be emphasized that

while resolution of the issue in this case will resolve an

important issue in amici’s case, any resolution of this case's

issue will still leave what amici contend are many serious

errors and confusions in the California Supreme Court

decision in Reader's Digest Assn. v. Superior Court, 37

Cal.3d 244, 208 Cal. Rptr. 137, 690 P.2d 610 (1984).

Therefore, amici submit that their petition for certiorari

should be granted regardless of the outcome of this case.)

A second way in which petitioners have an interest in this

matter arises from the various references made to amici in

the briefs already filed in support of petitioners in this

action. These briefs attempt to bolster their arguments by

disparaging the character and good name of amici,

including references such as “Synanon's deliberate use of

litigation to ‘chill’ the media” (Reader's Digest Brief, p. 8)

and the characterization of Synanon as filing defamation

ee

actions “to stifle adverse comraent™ (Media Amici Brief, p.

26).' The allegations made about Synanon and Mr.

Dederich are false and are frequently based upon

unsubstantiated newspaper reports or no citation at all. To

the extent that petitioners in this case are attempting to

support their position by attacks on the character of amici,

amici have a direct and real interest in having their points

heard.

The facts and questions of law which amici wish to

address focus on how petitioners and their supporters are

asking for a new and extraordinarily high protection at the

which will cause great difficulties. The attached brief

corrects many of the erroneous factual and legal arguments

of petitioners and their supporters. Blatant misstatements

— as, for example, the false claim that there is “virtual

unanimity” among the various jurisdictions regarding

petitioners’ proposed rule — demonstrate the fundamental

errors of petitioners and their supporters in the media

industry who wish to establish extraordinary rules favoring

them as litigants.

' The relevant petitions and briefs before this Court will be referred to

herein as follows: Petiuion for Writ of Ceruiorari in Synanon v. Reader's

Digest Association, Inc. hereinafter “Synanon Pet. for Cert.”: Brief for

Petitioners, Anderson v. Liberty Lobby, hereinafter “Pet. Bnef”; Brief of

Amicus Curiae, the Reader's Digest Association, Inc., in S:»port of

Petitioners, hereinafter “‘Reader’s Digest Brief”; and, Brief Amici

Curiae of American Newspaper Publishers Association, et al.

hereinafter “Media Amici Brief.”

For these reasons, The Synanon Church and Mr

Dederich respectfully request that this motion for leave to

file a brief amici curiae be granted.

Respectfully submitted,

BOURDETTE, BENJAMIN &

WEILL

PHILIP C. BOURDETTE

DAVID R. BENJAMIN

ANDREW J. WEILL

P.O. Box 42

Badger, CA 93603

Phone: (209) 337-2885

COHN, GLICKSTEIN, LURIE,

OSTRIN, LUBELL & LUBELL

JONATHAN W. LUBELL

1370 Avenue of the Americas

New York, NY 10019

Phone: (212) 757-4000

Attorneys for Amici Curiae

The Synanon Church and

Charles E. Dederich

No. 84-1662

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1984

JACK ANDERSON, THE INVESTIGATOR

PUBLISHING CO., and BILL E. ADKINS,

Petitioners,

vs.

LIBERTY LOBBY, INC. and WILLIS A.

CARTO,

Respondents.

BRIEF OF AMICI CURIAE THE SYNANON

CHURCH AND CHARLES E. DEDERICH IN

SUPPORT OF POSITION OF RESPONDENTS

This brief is respectfully submitted, pursuant to Rule 36

of the Rules of this Court, urging affirmance of the

decision below of the United States Court of Appeals for

the District of Columbia Circuit, on the grounds that (1) no

special procedural rules are mandated at the summary

judgment level in defamation cases by the First Amendment

=* (2) this Court should explicitly state that, as in other

cases where state of mind is in issue, summary judgment is

a disfavored remedy to resolve a disputed issue of actual

malice in a defamation case?

SUMMARY OF ARGUMENT

Petitioners’ position is in error because there is no

constitutional mandate for a particular standard of proof at

the summary judgment stage in a defamation action. This

Court's decision in New York Times Company v. Sullivan,

376 US. 254 (1964), did not create such a rule, and

is now-

necessary for this Court to hold explicitly what it has

suggested in Hutchinson v. Proxmire, 443 US. 111 (1979)

and Calder v. Jones, US, 104 S.Ct. 1482 (1984):

is a

ability to take their cases to juries.

2 The abbreviations used herein for briefs are set forth in Footnote |,

supra,atp 3.

ARGUMENT

I

THE STANDARD OF PROOF ON A MO.

TION FOR SUMMARY JUDGMENT IS NOT

MANDATED BY THE FIRST AMENDMENT

Previous Analysis by This Court

The petitioners and amici curiae in support of petitioners

raised from the decision in Liberty Lobby v. Anderson, 746

F.2d 1563 (D.C. Cir. 1984), cert. granted, US, 105

S.Ct. 2672 (1985), is whether the First Amendment

mandates the special procedural protection that a party

opposing a motion for summary judgment in a libel case

must prove the defendant's actual malice by clear and

convincing evidence.

Petitioners assert that in defamation cases there should be

@ constitutional mandate under the “4 Amendment

requiring the special procedural protection of a higher

standard of proof in opposing a motion for summary

judgment. Petitioners’ position is unique. Even where a

higher standard of proof than a preponderance of evidence

is required at trial, the standard of proof in a motion for

summary judgment in such cases is uniformly left to the

individual jurisdictions.’

) Petitioners and supporting amici have cited some cases in which

various junsdictions have elected to impose a heightened standard of

proof at the summary judgment stage when a higher burden is required

at tnal However, contrary to their repeated implications, this is far from

& universal rule. Many jurisdictions do not impose a heightened

standard, as a few examples show. See, eg. Webbe ». McGhie Land

Tithe Co, 349 F.2d 1358, 1360 (10th Cir. 1977) [while clear and

convincing evidence is required to overcome the presumption that a

deed is valid, “{w)hether the quantity and quality of evidence offered 's

sufficient to overcome such presumption is to us a matter which cannot

be satisfactorily resolved by summary judgment} Atrorney General of

the United States v. Irish People, 995 F Supp. 114, 116-117 (D. DC.

1984) [Plaintiff argues that because the application of FARA affects

First Amendment nghts, the government must make a compelling

factual showing and establish its case by clear and convincing evidence

Although this argument might be appropriate in « discussion of

proposed jury instructions, it has no place in the consideration of

motion for summary judgment.”} J. C. Freeman v. Saxton, 240 Ga 309,

240 SE.2d 708, 709 (1977) [“[q)uestions concerning the factual

sufficiency of the evidence, 1... whether the appellant has by clear and

convincing evidence rebutted the presumption of gift and shown an

implied trust, are for the jury”}, Dugan v. First Nat. Bank in Wichita,

227 Kan. 201, 606 P.2d 1009, 1014 (1980) [“[p]arty resisting « motion

for summary judgment in an action based upon fraud need not present

‘clear and convincing’ evidence of fraud in opposing the motion “}

Kline v. Clinton, 103 Idaho 116, 645 P.2d 350, 355 (1982)[“"While proof

of an oral modification by clear and convincing evidence is the

appropriate burden of proof at the trial of a matter, at the summary

judgment stage the function of the trial court is not to weigh the

evidence or to try the factual issues by whatever standard 1s appropriate

to the case, but merely to determine whether or not there exists any

genuine issue of material fact”), Collord » Cooley, 92 Idaho 789, 45!

P.2d $35, $41 (1969) [Contention that summary judgment was properly

granted because opposing parties failed vo come forward with clear and

convincing evidence “misconstrues the role of a summary judgment

The burden is upon the party moving for summary judgment. to

establish that there is no genuine issue of material fact”), Credit Union

of America v. Myers, 234 Kan. 773, 676 P.2d 99, 106 (1984) (“The

general rule is that fraud is never presumed and must be proven by clear

and convincing evidence. [Citation] The tna! court incorrectly apphed

the trial evidentiary standard to the motion for summary judgment”),

Steadman »v. Turner, & NM. 738, 307 Pld 799, M1 (1973

[Defendants confuse rules applicable to tnals and rules appbcable to

Amici in support of petitioners assert that application of

the “clear and convincing” standard at the summary

judgment stage in defamation actions is a matter of “virtual

unanimity among the state and federal courts” (Reader's

Digest Brief, p. 5). This is a misstatement of the law.

Indeed, the very authority cited by petitioners’ amici belie

their characterization of the “virtually unanimous” rule. In

Nader v. de Toledano, 408 A.2d 31 (D.C. App. 1979), cert.

denied, 444 US. 1078 (1980) (cited in Media Amici Brief,

pp. 20-21, nm. 15), the conflicts which exist concerning the

standard of proof at summary judgment were carefully

described and analyzed. The Nader court found that one

line of cases, deriving from Wasserman v. Time. Inc, 424

F 2d 920 (D.C. Cir. 1970), cert. denied, 398 US. 940 (1970),

created a test which deviated from usual summary

summary judgments At tnal. the burden of estabhshing each element of

fraud by clear and convincing evidence 1s upon plamntffs” but no such

requirement occurs at summary judgment} Floyd (J L.) v. Industrial

Development Board of City of Dothan, 442 So 2d 927, 9% (Ala. 1983)

[clear and convincing evidence is necessary at trial to prove

abandonment by non-use, but plainuff will survive mouon for summary

judgment by establishing genuine issue of material fact) Hibbs ».

Chandler, 684 $W 2d 310, 312 (Ky. Ct. App. 1985) [while clear and

convincing evidence is required at trial to prove paternity, such evidence

18 Not required to survive mouon for summary judgment)

malice with convincing clarity # plaintiff is to

survive a summary judgment attack. The

Wasserman approech thus constitutes a two-

Id. at 46.

The Nader court then decided that norma! rules apply at

summary podgment without constitutional concerns as to

court. We find no hint anywhere from the

Id. at 49. Accord, Joseph v. Xerox Corp. 334

F Supp. 330, 334, 2. 5$(D.D.C. 1984).

Thus, the very case cited by media amici stands for the

proposition opposite to their claim and, in fact, supports the

holding of Liberty Lobby. Many other decisions show that

the claim of petitioners is far from universally accepted.

Other courts hewe rendered decisions in accord with the

decision in Liberty Lobby‘

* See, also, Clerk » American Broadcasting Companies, Inc. 684

F 2d 1208, 1212 (6 Cir. 1982), cert. denied, 460 US. 1040 (1983)

[ABC suggests thet different rules and considerations apply to

summmary pedgrment mouons in defamation cases. However, the standard

for summary padgment motions is articulated clearly in Fed.R.Civ-P.

Stic) [f) There & so rule which favors either granting or denying

motions for summary judgment in defamation cases.’ [Citations]

Therefore. even i defamation cases, summary judgment is proper only

if there exists so genuine issue as to any material fact.”]; Pace vy.

McGrath, 378 F Supp 140, 144 (D.Md. 1974) [making distinction that

comwmenng clarty «© burden required at trial, not summary judgment);

Berkey » Delia, 28) Md. 302, 413 A.2d 170, 185 (1980) [clear and

comwimenng test regected at summary judgment level; “{wJhether Delia

edduces clear and comvincing evidence to support his action against

Berkey must be Getermened by the trier of fact who will weigh, compare,

test, and jedge is worth”); DiLorenzo v. New York News, Inc. 81

AD2¢ 4, 41 N YS.2d 483, 484 (1980) [“Concern for the First

Amendment showld sot be transformed into a requirement that the

planet! prowe actual malice to the motion court}; Dienes v. Associated

Newspapers, Inc. 137 Mich. App. 272, 358 N.W.2d 562, 568 (1984) [at

mowor for summary pedgment “(w]e decline to hold that any benefit of

the Gout’ must go to the media defendant nor do we hold that plaintiff

must come forward with clear and convincing proof that a genuine issue

of fact exests with regard to malice”); Community Medical Services of

Clearfield. Inc. + Lecal 2665, American Federation of State, County

and Municipal Employees, AFL-CIO, 437 A.2d 23, 27 (Pa. Super. Ct.

1981) [~The umport of the Guam decision is that the usual procedural

rules showld govern summary judgment and that a libel plaintiff need

met prove mahce twice—first to the judge, then to the jury.”]; Collins v.

Brigman, 428 So.2¢ 373, 374 (Fla. Dist. Ct. App. 1983) [In order for a

bugant © evord « summary judgment he does not have to ‘demonstrate

with clear and comwimceng evidence that there is a genuine issue as to any

maternal fact. —even m a public official defamation case.”].

Another case heavily relied upon by petitioners and their supporters is

Yiermow ytannis » Comswmers U. of the United States, 619 F.2d 932 (2d

The Liberty Lobby court and the many courts which have

ruled similarly are correct. There is certainly no reference

in the language of the First Amendment itself to the special

procedural protection petitioners seek; there is no indication

that the framers of the Constitution ever envisioned such a

special procedural protection. There is no apparent

indication in any decision of this Court that the clear and

convincing evidence standard must be applied at any stage

prior to submission to the jury. In fact, this Court's

decistoas-inficate the opposite. This Court unanimously

held last year that there are no First Amendment concerns

whatsoever in determining whether a particular court has

jurisdiction over a defendant in a defamation action. Calder

v. Jones, _U S—, 104 S.Ct. 1482, 1487 (1984). There is no

First Amendment bar to inquiring during the discovery

phase of the litigation into the editorial processes and state

of mind of persons involved in the publication. Herbert v.

Lando, 441 US. 153, 176 (1979). This Court has never held

that the standard of proof on any issues other than actual

malice in a libel case has any constitutional implications at

all, including the proof of falsity, innuendo, colloquium and

the fact of publication. Recently, a plurality of this Court

held that presumed and punitive damages are not

constitutionally prohibited in certain cases involving private

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

Inc, —U S—, 105 S.Ct. 2939 (1985). This Cowr't has never

indicated that it is limiting a litigant’s opportunity to have

his case reach the jury.

Cir. 1980), cert. denied, 449 U.S. 839 (1980). However, a later decision

characterized the portion relied upon as mere dictum which does not

precisely set forth the rule on summary judgment motions in defamation

cases. Westmoreland v. CBS Inc., 596 F Supp. 1170, 1179 (S.D.N-Y.

1984).

The new, extra protection which petitioners seek is a form

of double counting, similar to that which has already been

expressly rejected by this Court in a unanimous decision:

Moreover, the potential chill on protected First

Amendment activity stemming from libel and

defamation actions is already taken into account

in the constitutional limitations on the substantive

law governing such suits. See New York Times,

Inc. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11

L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc.,

418 US. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789

(1974). To reintroduce those concerns at the

jurisdictional stage would be a form of double

counting. We have already declined in other

contexts to grant special procedural! protections to

defendants in libel and defamation actions in

addition to the constitutional protections embo-

died in the substantive laws. See, e.g. Herbert v.

Lando, 441 US. 153, 99 S.Ct. 1635, 60 L.Ed.2d

115 (1979) (no First Amendment privilege bars

inquiry into editorial process). See also

Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9, 99

S.Ct. 2675, 2680 n. 9, 61 L.Ed.2d 411 (1979)

(implying that no special rules apply for summary

judgment).

Calder v. Jones, supra, 104 S.Ct. at 1488.

The approach that Synanon and Mr. Dederich are

suggesting regarding this procedural question on summary

judgment is similar to the approach taken by this Court in

Herbert v. Lando:

The plaintiff's burden is now considerably

expanded. In 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. If

plaintiffs in consequence now resort to more

discovery, it would not be surprising; and it would

follow that the costs and other burdens of this

kind of litigation would escalate and become

much more troublesome for both plaintiffs and

defendants. It is suggested that the press needs

constitutional protection from these burdens if it

is to perform its task, which is indispensable in a

system such as ours.

Creating a constitutional privilege foreclosing

direct inquiry into the editorial process, however,

would not cure this problem for the press. Only

complete immunity from liability for defamatior.

would effect this result, and the Court has

regularly found this to be an untenable construc-

tion of the First Amendment. Furthermore,

mushrooming litigation costs, much of it due to

pretrial discovery, are not peculiar to the libel and

slander area. There have been repeated expres-

sions of concern about undue and uncontrolled

discovery, and voices from this Court have joined

the chorus. But until and unless there are major

changes in the present Rules of Civil Procedure,

reliance must be had on what in fact and in law

are ample powers of the district judge to prevent

abuse.

Herbert v. Lando, supra, 441 U.S. at 176-177.

(Footnote omitted.)

The argument that defamation defendants are entitled to

a particular standard of review in determining motions for

summary judgment presupposes that defamation

defendants have a constitutional right to seek summary

judgment in the first place. No such right exists. A state is

free to provide or eliminate the summary judgment as an

available procedure. Since defamation defendants have no

constitutional right to a motion for summary judgment,

they likewise have no constitutional right to a particular

standard on a motion for summary judgment.

In presenting their arguments, petitioners and amici raise

three other arguments which deserve some response: their

attack on libel plaintiffs, their equating summary judgment

with a directed verdict, and their attempts to distinguish

between the criminal and civil standards.

Attack on Libel Plaintiffs

Petitioners and supporting amici resort to attacks on the

character of The Synanon Church and other libel plaintiffs.

Their attacks are based entirely on newspaper reports and

other matters not properly before this Court. However, this

willingness to engage im exaggeration and outright

falsification about Synanon underscores how much the

media are seeking a special procedural rule for their benefit.

For example, the media amici cite two Newsweek articles

for their argument that a “major newspaper group,” The

Hearst Corporation, paid a substantial settlement to get rid

of certain costly, time-consuming litigation. The clear

implication is that Synanon's litigation against the Hearsts

was meritless. The truth is that in 1976 the Synanon

plaintiffs received a $600,000 settlement with a front-page

retraction from the Hearsts in a libel case and in 1978 $2

million for various torts of the Hearsts and their attorneys,

including the burgling of Mr. Dederich’s personal offices.

These payments were obviously not mere nuisance value

settlements.

==

There are also references in the briefs to Synanon being a

“violent” organization based upon language in certain

judicial decisions. In none of these cases was any ultimate

fact decided regarding this issue. In the one case, the court

only noted that evidence of such violence had been

introduced, but declined to reach this issue; in the other, the

court was only considering the sufficiency of the

government's prima facie showing to compel a grand jury

witness’ testimony based upon in camera exhibits submitted

by the government. The interpretations of the cases by

amici are gross distortions and, moreover, these

characterizations and unsupported allegations are comp-

letely irrelevant to any issue before this Court.

The view of petitioners reflects a cynical view of the role

of courts and juries. To accept their argument, one must

assume that courts wil] not act to prevent useless and

harassing litigation and that juries will not follow properly

drafted legal instructions.*

Synanon is alleged to have conducted a campaign to

harass the members of the media, but these reports were

generated by either the media themselves or organizations

financed by and supporting the media organizations. The

entire point of the defamation action by Synanon and Mr.

Dederich against Reader's Digest is the opportunity to

clear the worldwide defamation suffered by them at the

hands of Reader’s Digest and other multi-million-dollar,

5 The media amici argue that the high reversal rate of libel verdicts

indicates that increased use of summary jucgment is required. (Media

Amici Brief , p. 24.) Exactly the reverse is true. The high reversal rate of

libel verdicts shows that the media is already receiving an extraordinary

degree of protection greater than that enjoyed by other civil litigants.

Again, the media's position is, in essence, that the protection afforded by

New York Times Company v. Sullivan is not good enough.

==

international media conglomerates. These huge commercial

media enterprises, whose major purpose is to increase

profits by selling more stories, would have this Court create

a virtually impenetrable barrier to Synanon’s and Mr.

Dederich's efforts to take their case to a jury.

Comparison to Directed Verdicts

Media arnici argue that the clear and convincing evidence

standard must be employed in summary judgment motions

because such a standard is applied in directed verdict

motions and the two are “functionally equivalent” (Media

Amici Brief, pp. 6-10). This argument ignores ceiiain well-

Professor Moore points out that a significant distinction

for directed verdict is that the party moving for summary

judgment has a higher burden:

As to certain issues the motion for summary

judgment does, however, operate differently than

moving for summary judgment has the burden of

establishing the lack of any triable issue of

material fact, even as to issues upon which the

Opposing party would have the burden of proof at

trial. And since the motions operate differently in

point of tume—the motion for summary judgment

to foreclose a trial, and the motion for directed

verdict after the opposing party has had full

opportunity to present his evidence in court—this

enfin.

factor may be considered in the exercise of sound

jedicial edenini '

wy Mowe Sey Seted Practice, 1 56.23,

This distinction is crucial in the present case. At the time

of a motion for directed verdict, after the evidence has been

heard, it is proper to consider whether plaintiff has met his

burden of establishing constitutional malice by clear and

convincing evidence. Such is not the burden at the time of

motion for summary judgment, where the burden is entirely

upon the party moving for summary judgment, as the

above-quoted language makes clear.

motion and the summary judgment motion is that at the

directed verdict stage it is proper for the trial judge to make

credibility determinations:

Yet a major difference between summary

judgment and directed verdict is that credibility

determinations may enter into the latter but not

made after the witness had testified and the court

could take account of the possibility that he either

could not be disbelieved or believed by the jury.”

Agosto v. Immigration & Naturalization

Service, 436 US. 748, 770, n. 8 (1978) (Powell, J,

ti ing!

To the extent that amici argue that their conclusion is

compelled by some “functional equivalence” between the

judgment, their contention is without merit.

—_— =

Analogy to Criminal Cases

The analogy used in Liberty Lobby of the “clear and

convincing” evidence standard in libel cases to the “beyond

a reasonable doubt” constitutional standard in criminal

cases and the application of those standards in pretrial

proceedings is a proper one. This excellent analysis derives

further support from the decisions of this Court. In addition

to the premise that “probable cause” is sufficient to take a

criminal case to trial, this Court has held, concerning the

preliminary inquiry in the criminal context, that there are

no constitutional necessities that require the application of

the higher “beyond a reasonable doubt” standard when

dealing with the question of pretrial incarceration of a

criminal defendant. Gerstein v. Pugh, 420 US. 103, 121-122

(1975). In Gerstein, this Court held that, although guilt in a

criminal case must be proved beyond a reasonable doubt, a

finding of probable cause is all that is required under the

Fourth Amendment to incarcerate a criminal defendant

before trial. Id.

* The media amici attempt to counter the analogy by suggesting that

the criminal preliminary hearing occurs before the prosecutor has

engaged im any discovery. for summary judgment

while the movon

discovery. This is meritless. Usually a prosecutor will have

—"o

IT IS NOW URGENT FOR THIS COURT TO

STATE CLEARLY AND UNEQUIVOCALLY,

THAT STATES HAVE A_ VALUABLE,

RECOGNIZABLE INTEREST IN PRO-

TECTING THE REPUTATIONS OF THEIR

CITIZENS, THAT THERE IS CONSTITU-

TIONAL VALUE IN ALLOWING CITIZENS

TO TAKE TRIABLE QUESTIONS OF

ACTUAL MALICE TO A JURY, AND THAT

MOTIONS FOR SUMMARY JUDGMENT IN

LIBEL CASES ON THE ACTUAL MALICE

QUESTION ARE GENERALLY DIS-

FAVORED BECAUSE THEY CALL INTO

QUFSTION THE STATE OF MIND OF THE

CENTRAL WITNESSES

It is respectfully submitted that this ‘Court should now

strongly hold that motions for summary judgment in libel

cases on the actual malice question a = to be treated in the

same manner as other state-of-mi J matters, and are

therefore disfavored. This Court has provided excellent,

clear explanations of the motion for summary judgment

purpose and procedure which should be the standay| ~

defamation cases:

Summary judgment should be entered only wir

the pleadings, depositions, affidavits, and admis

sions filed in the case “show that [except as to the

completed his investigation before filing charges, and the prosecution

typically conducts little or no discovery after the preliminary hearing.

anfifies

amount of damages] there is no genuine issue as to

any material fact and that the moving party is

entitled to a judgment as a matter of law.” Rule

56(c), Fed. Rules Civ. Proc., 28 U.S.C.A. This rule

authorizes summary judgment “only where the

moving party is entitled to judgment as a matter

of law, where it is quite clear what the truth is, * *

* [and where] no genuine issue remains for trial *

* * [for] the purpose of the rule is not to cut

litigants off from their right of trial by jury if they

really have issues to try.” Sartor v. Arkansas

Natural Gas Corp, 321 US. 620, 627, 64 S.Ct.

724, 728, 88 L.Ed. 967 (1944).

Poller v. Columbia Broadcasting System, Inc.

368 U S. 464, 467 (1962).

It is a well-established principle that questions of state of

mind of a witness do not readily lend themselves to

resolution by summary judgment. /d. at 473. It is now time

for this Court to articulate a clear recognition that state of

mind issues are inherent in the New York Times test, and

that these subjective tests require that summary judgments

should be rare.

The right of plaintiffs to bring defamation suits to clear

their reputation is a vital one. It is absolutely essential in our

democracy that individuals, even those who risk speaking

out against the established norm, be protected from

irresponsible attacks by the media. People wronged by

irresponsible media have a right to some recourse, and

defamation actions are the only realistic recourse possible.

It is imperative for this Court to prevent other courts from

misreading the First Amendment to denigrate that right.

The media's claim of a “chilling effect” from protracted

litigation is baseless. In fact, the reverse is true. Defamation

asffien

plaintiffs are the ones who are “chilled.” The enormous

resources of media defendants are brought to bear against

any who dare to sue them.’ There are no signs ‘hat the

instigation of litigation deters the media at all. For example,

even after Synanon filed suit against Reader's Digest

Association, Inc., Reader's Digest republished the article

sued upon in its foreign editions (Synanon Pet. for Cert.,

pp. 22-23). In no way was Reader's Digest “chilled.”

generally the defendants. Libel defendants are better able to

stories sell the best. Therefore, this Court should act to

protect the rights of citizens to seek redress for injury to

their reputation and to have their legitimate claims reach a

jury.

, Unless this Court firmly states that summary judgments

on the actual malice question are disfavored, defamation

defendants wi!] coni‘nue to make inroads on the legitimate

rights of plaintiffs. The position of the petitioners would

require a trial court to weigh evidence and test credibility

on a motion for summary judgment in a libel case. As this

Court cogently explained in Addington v. Texas, 441 US.

’ For example, in one slander case brought by Synanon against

Amencan Broadcasting Companies, Inc . two officers of Synanon were

each subjected to over 30 days of deposition Defamation defendants are

renowned for imposing such oppressive discovery burdens.

anfifie

418 (1979), the difference between clear and convincing

evidence and a preponderance of evidence is one of degree,

requiring a weighing process to distinguish:

type of adjudication.” Jn re Winship, 397 US. 358,

370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970)

(Harlan, J, concurring).

commonly used, but nonetheless “is no stranger to

the civil law.” [Citations] One typical use of the

standard is im civil cases involving allegations of

fraud or some other quasi-criminal wrongdoing by

the defendant The interests at stake in those cases

are deemed to be more substantial than mere loss

of money and some jurisdictions accordingly

reduce the risk to the defendant of having his

analyze what lay jurors understand concerning

the differences among these three tests or the

nuances of a judge's instructions on the law may

well be largely an academic exercise; there are no

directly relevant empirical studies. Indeed, the

ultumate truth as to how the standards of proof

affect decisionmaking may well be unknowable,

given that factfinding is a process shared by

countless thousands of individuals throughout the

country. We probably can assume no more than

that the difference between a preponderance of

antics

the evidence and proof beyond a reasonable doubt

probably is better understood than either of them

im relation to the intermediate standard of clear

and comvincing evidence. Nonetheless, even if the

perticular standard-of-proof catchwords do not

always make a great difference in a particular

case, adopting a “standard of proof is more than

an empty semantic exercise.” [Citation] In cases

involving individual rights, whether criminal or

civil, “(dhe standard of proof [at a minimum]

reflects the value society places on individual

liberty.” [Citation]

Id. at 423-425.

As Addington teaches, the difference between

“preponderance,” “clear and convincing,” and “beyond a

reasonable doubt” is a matter of degree — a matter of how

much weight the factfinder is to give to the evidence.

Petitioners would have this Court interpret the First

Amendment so as to require trial courts to drag into the

motion for summary judgment procedure the debate as to

what amount or type of evidence is sufficient to resolve a

disputed question of material fact by clear and convincing

evidence. That resolution requires a weighing of evidence

and testing of credibility of witnesses, and is completely

inconsistent with normal summary judgment procedures.

Indeed, the rule urged by petitioners would require the trial

court to grent a defamation defendant’s motion for

summary jedgment even if a plaintiff comes forward with a

preponderance of the evidence on the issue of actual malice.

A firm statement from this Court is required to counter

the confusion created by petitioners and their supporters

regarding the nature of the summary judgment inquiry. As

conceded by emici, the elements of the inquiry are “that the

= =

contested fact be material and that the dispute be genuine.”

(Media Amici Brief, p. 8.) Thus, the court has only two

inquiries. The first is whether the allegedly disputed fact is

material, i.c., whether resolution of the fact could prove or

disprove an element of the case. The second inquiry is

whether the dispute is genuine. This does not mean that the

court needs to weigh the relative merits of the sides in the

dispute; indeed, the trial court is forbidden to do so. The

only inquiry properly before the trial court is whether or not

the dispute is genuine.

If this Court does not use this opportunity to reject firmly

the position urged by petitioners and their supporters,

defamation defendants will continue to argue that summary

judgment determinations in libel cases are a matter of

federal constitutional law potentially subject to review by

this Court. This Court would find it necessary to resolve

repeatedly the meaning and scope of this new procedural

right. For example, it would be essential for this Court to

accept the Synanon v. Reader’s Digest Association petition

for certiorari to resolve what issues lower courts must

consider in the “clear and convincing” evidence test and

what weight should be given to evidence upon those issues.

A striking example exists in the Synanon case, where the

California Supreme Court minimized the dispute wherein

Reader’s Digest’s sources deny saying that which the

author claims they said (Synanon Pet. for Cert., pp. 23-24).

If the clear and convincing evidence standard is not clearly

rejected, courts will be required to wrestle with the weight

to be given to the conflicting evidence, as the California

Supreme Court did. There are many other examples. This

Court would be called upon to resolve how much weight

should be given to evidence that the defendant deleted

pertinent facts that contradicted the defamation (Synanon

Pet. for Cert., p. 19); evidence of predisposition to publish a

ws

defamatory article (/d., p. 20); evidence of failure to contact

the subject of the story or persons associated with it (/d,

p. 21); evidence of failure to corroborate sources when the

story did not constitute “hot news” (Jd.); and evidence of

publication of the defamation after receipt of a demand for

retraction (Jd. p. 22). In the Synanon case, the evidence

introduced in the summary judgment motion was

considered sufficient by the trial judge to raise a triable

issue of fact. The evidence was considered insufficient

under the “favored remedy” approach taken by the

California Supreme Court. Under petitioners’ approach,

this Court will ultimately have to decide how much weight

should be given to such evidence and whether it meets the

proposed new constitutional standard at the summary

judgment stage.

A rule allowing courts to use a clear and convincing

evidence standard at summary judgment will cause an

xtreme distortion of the discovery process. At a trial, a

plaintiff can call a witness and confront him with all

contradictions which may have been developed in the

course of discovery. This is impossible to achieve in the

discovery process itself, since witnesses deposed in the early

Stages of discovery cannot be confronted with later-

developed facts. Actual malice can rarely be proven

directly, since defendants will usually vouch for their own

good faith. Herbert v. Lando, supra, 441 US. at 170.

Therefore, it is usually essential for the plaintiff to establish

actual malice by accumulated circumstantial evidence,

which can be weighed against the defendant's denials. Such

weighing is properly performed by a jury. Under petitioners’

view, trial courts will be resolving factual disputes using an

inadequate record, insufficient cross-examination, and

extremely truncated and limited discovery. For example, in

the Synanon v. RDA case, petitioners filed an affidavit

—

detailing eight depositions which were needed to oppose the

motion for summary judgment; the California Supreme

Court apparently did not find this affidavit in the file and

concluded no need for further discovery had been shown.

(Synanon Pet. for Cert., pp. 9-10, n. 8.) The trial court did

not have to reach the discovery issue since it had denied the

motion for summary judgment, but under the California

Supreme Court's favored remedy and clear and convincing

evidence standard, which caused the termination of the

Synanon v. RDA libel suit, the question of whether Synanon

and Mr. Dederich were unconstitutionally denied sufficient

discovery is fundamental.

Moreover, a clear statement that libel summary

judgments are disfavored will serve to keep this Court from

being embroiled in other constitutional questions. For

example, must trial and appellate courts cumulate

inferences and circumstantial evidence to deny the motion

for summary judgment, as in all other summary judgment

proceedings? This issue is directly apparent from the

Synanon v. RDA case (Synanon Pet. for Cert., pp. 17-19)

and cries out for resolution therein if this Court were to

allow for the clear and convincing evidence standard

requested by petitioners in this case.

Thus, unless this Court gives a direct statement of the

disfavored status of summary judgments on the actual

malice issue, most perplexing constitutional matters are

potentially raised, all cl which are set forth in Synanon’s

petition in response to the California Supreme Court's

position that summary judgment is a favored remedy.

A clear statement of this Court will unambiguously

determine that defamation defendants are not entitled to

special protections at the pretrial stage. Although

= =

petitioners repeatedly claim they seek no special rules,*

elsewhere they admit that special protection is indeed what

they seek.’

In effect, petitioners’ argument is that the Constitution

requires the creation of a heavy presumption that libel

defendants have not engaged in tortious conduct and that

this heavy presumption must be adhered to at all stages of

the proceedings to create unique hurdles for libel plaintiffs.

® Pet. Brief, pp. 8-9 [Liberty Lobby decision creates special rule

disadvantaging libel defendants on summary judgment], p. 9 [neutral

summary judgment rule implies no special protection for libel

defendants], pp. 13-19 [normal summary judgment rules apply to libel

cases}; Reader’s Digest Brief, p. 5 [only normal summary judgment

procedures apply], p. 12 [no special procedural rules apply at summary

judgment stage of libel cases], p. 14 [the manner of considering the

evidence is the same as in any other summary judgment case], p. 17

[neutral approach to summary judgment applies as in any other case):

Media Amici Brief, p. 3 [normal rules require that elevated standard of

proof needed at trial must also apply at summary judgment), p. 16

[settled principles of summary judgment apply], p. 18 [Hutchinson v.

Proxmire, supra, mandates application, in libel cases, of normal

9 In direct contradiction of the statements set forth in the preceding

note, petitioners and their supporters repeatedly refer to the special

protection necessary for libel defendants at summary judgment. See, ¢.g.,

Pet. Brief, p.9 [special need for independent judicial scrutiny at

summary judgment stage of public-figure libel cases], pp. 24-26

[constitutional question in libel cases is “of the most sensitive and

delicate kind” and should not be left to the trier of fact}; Reader's

Digest Brief, pp. 2, 6-8 [chilling effect of libel litigation mandates

special constitutional protection at all stages of proceedings], p. 12

[substantive constitutional limitations on libel law must be applied at

summary judgment in order to make constitutional protections

effective]; Media Amici Brief, p. 3 [freedom of speech requires special

protection at pretrial stage), p. 28 [First Amendment rights require

application of heightened standard of proof at summary judgment).

Petitioners and their supporters argue that this is the

conclusion mandated by New York Times.

The present case offers this Court an excellent

opportunity, which it is respectfully submitted should be

taken, to examine and modify the decision in New York

Times Company v. Sullivan; however, such a drastic

approach is not required, because New York Times does not

mandate a clear and convincing evidence standard at the

summary judgment stage. Instead, petitioners and their

supporters should be denied the new, extraordinary

protection which they are requesting, and it is further

respectfully submitted that it is now urgent for this Court to

issue a Clear, unequivocal holding that summary judgments

are disfavored on the actual malice issue in defamation

cases.

CONCLUSION

For the foregoing reasons, the decision of the District of

Columbia Circuit should be affirmed.

Respecifully submitted,

BOURDETTE, BENJAMIN &

WEILL

PHILIP C. BOURDETTE

DAVID R. BENJAMIN

ANDREW J. WEILL

P. O. Box 42

Badger, CA 93603

Phone: (209) 337-2885

COHN, GLICKSTEIN, LURIE,

OSTRIN, LUBELL & LUBELL

JONATHAN W. LUBELL

1370 Avenue of the Americas

New York, NY 10019

Phone: (212) 757-4000

Attorneys for Amici Curiae

|

t

)

i

'

i)

J

:

>

\ PROOF OF SERVICE BY MAIL

I served the within MOTION FOR LEAVE TO FILE

BRIEF OF AMICI CURIAE IN SUPPORT OF RESPON-

DENTS, AND BRIEF OF AMICI CURIAE THE

SYNANON CHURCH in re: “Jack Anderson vs.

Liberty Lobby, Inc.” in the U.S. Supreme

Court, October Term, 1984, No. 84-1602;

KAYE, SCHOLER, FIERMAN, HAYS & HANDLER

David J. Branson, 1575 Eye Street, N.W.

Washington, D.C. 20005;

LIBERTY LOBBY, INC., Fleming Lee, 300

Independence Avenue, Washington, D.C.

20003;

PILLSBURY, MADISON & SUTRO, Walter R.

Allan, 225 Bush Street, P.O. Box 7880,

San Francisco, CA 94120; ( 1 copy)

PATTERSON, BELKNAP, WEBB & TYLER, Robert

D. Sack, 30 Rockefeller Plaza, New York,

New York 10112; (1 copy)

,

AMERICAN LEGAL FOUNDATION, Suite 300,

1705 “N” Street, N.W., Washington, D.c.

20036; (1 copy)

All parties required to be served have

been served.

I certify (or declare) under penalty of perjury that the

Saseead aires and pervect 16, 1985

at Los Angeles, California

TL “es - Bile Ag Y

Lawyer's Brief Service, Inc / Legal Publishers / (213) 383.4457