# Amicus Curiae Brief — Anderson v. Liberty Lobby

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0328%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 477 U.S. 242

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0328%3A11. Public record. Not legal advice.