Opposition Brief — Gannett Co. v. DeRoburt

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No. 84-772 ? reme Court, U.S.

— et ED

IN THE

DEC 15 |864

Supreme Court of the United States

OcTOBER TERM 1984 ALEXANDER .. STEVAS.

CLERK

>

GANNETT Co., INC.,

GUAM PUBLICATIONS, INC.

d/b/a PaciFric DAiLy News,

Petitioners,

V.

HAMMER DEROBURT,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENT HAMMER DEROBURT

IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

oa

CADWALADER, WICKERSHAM & TAFT

*JOHN J. WALSH

KEVIN W. GOERING

One Wall Street

New York, New York 10005

Tel: (212) 908-7000

GEORGE M. ALLEN

GENEVIEVE S. RICHARDSON

3116 Mauka Tower

737 Bishop Street

Honolulu, Hawaii 96813

Tel: (808) 523-5448

Attorneys for Respondent

Of Counsel:

PETER SHERIDAN, Q.C.

2 Crown Office Row,

The Temple

London, England EC4Y7HJ

* Counsel of Record

m'

<<)

Some

(i)

QUESTIONS PRESENTED

‘WHETHER THE COURT OF APPEALS ERRED IN

REFUSING TO UPHOLD THE DISMISSAL OF PLAIN-

TIFF’S LIBEL CLAIM ON THE BASIS OF THE ACT OF

STATE DOCTRINE, WHERE (A) THE PLAINTIFF WAS

MISIDENTIFIED AS THE HEAD OF STATE WHO PER-

FORMED A PARTICULAR ACTION, (B) THE ACTION

WAS CHARACTERIZED IN THE DEFAMATORY ARTI-

CLES AS SECRET, ILLEGAL AND IMPROPER, AND (C)

THE LEGALITY OR VALIDITY OF AN ACT OF STATE IS

NOT RELEVANT TO EITHER PARTY’S PROOF ON THE

ISSUE OF THE TRUTH OR FALSITY OF PETITIONERS’

STATEMENT THAT RESPONDENT PERFORMED THE

ACTION.

WHETHER A MEDIA DEFENDANT IS ABSOLUTELY

IMMUNE FROM DEFAMATION LIABILITY UNDER

THE FIRST, NINTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CONSTITUTION FOR

PUBLISHING FALSE STATEMENTS OF FACT CON-

CERNING A FOREIGN HEAD OF STATE WITH KNOW-

ING OR RECKLESS FALSITY.

Semnennnnnl we Te CR sis ccrsisesjitertiscrecittireonketineen

Reasons for Denying the Writ .............. iii asecaimcapeedbasicas

I.

III.

THE ISSUES RAISED ON THIS PETITION

FROM A NON-FINAL ORDER ARE

NEITHER RIPE NOR APPROPRIATE FOR

THIS COURT’S CONSIDERATION .............

A. Any Ruling on The Act of State Doctrine

Should Await Further Development of The

POIIIIG - csscksisrcsraciannttiontteataniabaneanieaameiaabataine

B. This Court Should Not Entertain Arguments

Not Presented To The Courts Below ..........

TRIAL UNDER THE FOURTH AMENDED

COMPLAINT WILL NOT REOUIRE THE

COURT AND JURY TO ADDRESS THE LE-

GALITY, VALIDITY OR MOTIVATION OF

ADCY BACT GF BAGG ccsssdceseincccvnnnsnrivonaivecensenss

GANNETT IS NOT ENTITLED TO ABSO-

LUTE IMMUNITY FOR DEFAMATORY

STATEMENTS PUBLISHED WITH ACTU-

AL MALICE UNDER EITHER THE FIRST

OR NINTH AMENDMENTS TO THE CON-

STE TAFE Ee sreccsiccesecnottonaninosviinngpentehinsticennaniineie

A. This Court Has Repeatedly Held That The

First Amendment Does Not Grant Absolute

Immunity for False Statements of Fact Pub-

lished with Actual Malice and Nothing in the

Record of This Case Suggests That Aban-

donment of the Rule of New York Times Co.

v. Sullivan Is Appropriate ...........ccccccseceeeeees

B. Calculated or Reckless Falsehood Regarding

the Official Conduct of Foreign Heads of

State Is Not Absolutely Protected Under the

PURE AINE sncctiessstissisivanscsenctnntbinietoinice

| RD ian NAME eC tok Ne OM

1]

19

20

25

30

(iii)

TABLE OF AUTHORITIES

Cases:

Alfred Dunhill of London, Inc. v. Republic of Cuba, 425

SE II ila SLU hash sncicadeichdssdieildehcbsiukinidantddiniauniaésiopapens

Alioto v. Cowles Communications, Inc., 623 F.2d 616 (9th

Cir. 1980), cert. denied, 449 U.S. 1102 (1981) 0.0...

American Banana Co. v. United Fruit Co., 213 U.S. 347

TE pitino

Appleyard v. Transamerican Press, Inc., 539 F.2d 1026

(4th Cir. 1976), cert. denied, 429 U.S. 1041 (1977) ..

Associated Container Transportation (Australia) Ltd. v.

United States, 705 F.2d 53 (2d Cir. 1983) oe

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)

Bokkelen v. Grumman Aerospace Corp., 432 F. Supp. 329

ire siicdnasisstthesasicntnsesnentabindchbntinuuncborsinsesee

Bose Corp. v. Consumers Union Inc.,

a NT II ik sstsicichasisabveeanpnbbabusinisevecdesebusawheledeeanivs

Brewer v. Memphis Publishing Co., 626 F.2d 1238 (Sth Cir.

1980), cert. denied, 452 U.S. 962 (1981) .......... eee

Brotherhood of Locomotive Firemen & Enginemen v.

Bangor & A. R. Co., 389 U.S. 327 (1967) .............000

Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d

I cha sada cided ea ksielasutiannehowsenetnoverse

Buttes Gas & Oil Co. v. Hammer, (1981) 3 W.L.R. 787

a ssc cidicieeminens

Charles v. Brown, 495 F. Supp. 862 (N.D. Ala. 1980) ...

Clayco Petroleum Corp. v. Occidental Petroleum Corp.,

712 F.2d 404 (9th Cir. 1983), cert. denied, U.S.

OE PU OT peiticicscacticlassstaatonickntnsinwnrconces

D’Angelo v. Petroleos Mexicanos, 398 F. Supp. 72 (D. Del.

SE aes aise hahohdiniaiaskenisibabeunvebabcbsesiirmibemangenarasonne

DeRoburt v. Gannett Co., 733 F.2d 701 (9th Cir. 1984)

PAGE

11, 18

15, 19

16

5

(iv)

PAGE

DeRoburt v. Gannett Co., 551 F. Supp. 973 (D. Haw. 1982) 5

DeRoburt v. Gannett Co., 548 F. Supp. 1370 (D. Haw.

SOE sckdsicxesiahataceenpsituaaveicsseeenncccammeacuaadiatnatcaianaandadines 4

DeRoburt v. Gannett Co., 507 F. Supp. 880 (D. Haw. 1981) 4

DeRoburt v. Gannett Co., 83 F.R.D. 574 (D. Haw. 1979) = 3, 22

FIC v. Grolier, Tne., 62 US. UD CUBS) vocicrecscrccscsencsvess. 1]

Garrison v. Louisiana, 379 U.S. 64 (1964) oo... eee 20, 22

General Aircraft Corp. v. Air America, Inc., 482 F. Supp. 3

i ia IEE | ance phsrcdancaniee sun ecdaidintanseeacians eatcehivabeacansansuacwens 15

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

Goldwater v. Ginzberg, 414 F.2d 324 (2d Cir. 1969), cert.

denied, 396 U.S. 1049 (1970) oe. Ste Ee Sct ear 25

Hamilton Shoe Co. v. Wolf Brothers, 240 U.S. 251 (1916) 10

Harkaway v. Boston Herald Traveler Corp., 418 F. 2d 56

SS RRS Sean arcrlis erie ENR mRNA 13

Herbert v. Lando, 441 U.S. 153 (1979) wu.cceeeeeeeeeeee 20, 21, 24

Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d Cir.), cert.

es Tee rl Ie OT iciteciees sestnanssenenssesthcicncenes 15

Industrial Investment Development Corp. v. Mitsui & Co.,

594 F.2d 48 (Sth Cir. sin cert. denied, 445 U.S. 903

COPE wcsiscincilireicaiiemeneldbeids aiaicalscltvlalinds Labiemiseuensneniigaicinidalées 14

Keeton v. Hustler Magazine, US. uu, 104 S. Ct.

Ek Fe Se Me ED, Siebiescadcabiansiccdiseuninniesice 2!

Linn v. United Plant Guard Workers of America, 383 U.S.

Fe EEE dia cchanePicticantilchisipintnantieuinnreiianeteatoasin tastes 22

Liquori v. Republican Co., 5 Med. L. Rep. (BNA) 2180

NN MN UIE iat conics siisiiiisninniendhonseiearaeianabenamtisiaiity 13

Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406

SNA I UIE iia oceania pmiianitcaieebin testbehiaieibenbbieies 13

News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385 (1930) 13

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .. 20

(v)

PAGE

Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d

1030, (9th Cir.), cert. denied, US. , 1048S. Ct.

BOE a scscdahasescsscsasuclsGcanbcmscdieonnaaieorenceeipesccusnaa venation 14, 17, 18

Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971) 13

Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F.

Supp. 92 (C.D. Cal. 1971), affd, 461 F.2d 1261 (9th

Cir.), cert. denied, 409 U.S. 950 (1972) ccc ceeeseeeeenees 16

Phoenix Canada Cil Co. v. Texaco Inc., 560 F. Supp. 1372

CER: SO Fe eicssicntaneiiinneevsstiidiclinioepicitendaadbaaiinn 16

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.

1982) cert. denied, i) Boog Ff

SIRI D -sinssiccsssstshvrsiiseesndceashtardlcisoencsbinialcshiordseehinbabaanecesedtiataaan 27

Reavis v. Exxon Corp., 90 Misc. 2d 980, 396 N.Y.S.2d 774

CR SR. FTE) scicnicrintncatnnsiinniiatiovimasinilievateniniiaticpendiantanes 16

Ricaud v. American Metal Co., 246 U.S. 304 (1918) ..... 9

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

CIID ski secsescsicscicinctibieninnsnciaeclaniseehicebabhastauamapinigataiacemeteiit 26

Rosenblatt v. Baer, 383 U.S. 75 (1966) .........ccceeeeeeeee 20, 24, 27

Ryder v. Time, Inc., 557 F.2d 824 (D.C. Cir. 1976) ....... 13

Sequoyah v. Tennessee Valley Authority, 480 F. Supp. 608

(E.D. Tenn. 1979), aff'd, 620 F.2d 1159 (6th Cir.), cert.

SE, SES TT Re 1 EE. niki ciscspnscsepesinecticniisiecinns 27

Shapleigh v. Mier, 299 U.S. 468 (1937) ...cccsccecseeceseeeereees 16

Sharon v. Time, Inc., No. 83 Civ. 4660, slip op. (S.D.N.Y.

PIE TWEE sisikseiccnnisciantentirornsmdenian 8, 9, 16, 17,

: 23, 28

St. Amant v. Thompson, 390 U.S. 727 (1968) «00... 20, 22

Temistocles Remirez de Arellano v. Weinberger, No. 83-

1950, slip op. (D.C. Cir. October 5, 1984) ....... eee 9

Time, Inc. v. Firestone, 424 U.S. 448 (1976) ......c eee 24

Time, Inc. v. Pape, 401 U.S. 279 (1971) ....sceccccsesseeersesees 20

Underhill v. Hernandez, 168 U.S. 250 (1897) ........ceeeee 11

(vi)

United States v. General Motors Corp., 323 U.S. 373

TINIE: Sussisicshinschonioksinddelientehiviehiuceannna didhaildaldiascalanasthabaaesicsyNoeia

United States v. Lovasco, 431 U.S. 783 (1977) voce

United States v. Pink, 315 U.S. 203 (1942) wo.

Washington Post Co. v. Kennedy, 3 F.2d 207 (D.C. Cir.

IIIT: lioitinsis ics bacihrsuittccatesca cchinktelstliniseicdababdkcbaleoinicsiscanbbia ellie lasiaacaas

Westmoreland v. CBS, 10 Med. L. Rep. (BNA) 2417

PORK, © . CORE BG, WOGE) cncccscessnccscasssinsnsanineivsses

Other Authorities and References:

A. Lewis, New York Times v. Sullivan Reconsidered: Time

to Return to “The Central Meaning of the First Amena-

ment,” 83 Colum. L. Rev. 603 (1983) .....................0000.

D. Noel, Defamation of Public Officers and Candidates, 49

Colum. L. Rev. 875 (1949) ..... sdiisabcidneiobibcinlanlalin ancibibaataiiets

PAGE

25

26

IN THE

Supreme Court of the United States

OCTOBER TERM 1984

No. 84-772

GANNETT Co., INC.,

GUAM PUBLICATIONS, INC.

d/b/a PaciFic DAILY News,

Petitioners,

Vv.

HAMMER DEROBURT,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ee

BRIEF OF RESPONDENT HAMMER DEROBURT

IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

STATEMENT OF THE CASE

Petitioners seek this Court’s Writ of Certiorari to review an

order of the United States Court of Appeals for the Ninth Circuit

reversing the District Court’s dismissal of the plaintiff's libel case

on the basis of the act of state doctrine. Hammer DeRoburt

(“DeRoburt”), currently the President of the Republic of Nauru,

brought this action for iibel in 1978 against the Petitioners, Gan-

nett Co., Inc. and its subsidiary, Guam Publications, Inc. (collec-

tively, “Gannett”). Two articles published on May 30, 1978 (the

“May 30 article”) and on June 29, 1978 (the “June 29 article”)

ee ee

2

in Gannett’s Guam newspaper, the Pacific Daily News, reported

that DeRoburt, while President of Nauru, had made and person-

ally delivered a loan of government funds described as secret,

illegal and improper to a political “separatist movement” in the

neighboring Marshall Islands. In fact, DeRoburt had neither

made nor delivered such a loan; but his predecessors had

approved and closed a,loan to the Marshall Islands Nitijela (leg-

islature) immediately before DeRoburt’s sudden and unexpected

reelection as President after the preceding government fel! from

power under Nauru’s parliamentary system of government.

THE PARTIES

Respondent Hammer DeRoburt became President of the

Republic of Nauru in 1968, when Nauru gained its independence.

DeRoburt remained President until 1977, when he fell from

power. Opposition party member Bernard Dowiyogo and his

successor from the same party, Lagumot Harris, held the Presi-

dency of Nauru for slightly over a year. On May 11, 1978, the

Harris government fell and DeRoburt was reelected President.

Petitioner Gannett is one of the largest newspaper publishers in

the United States. Through its Pacific subsidiary, Guam Publi-

cations, Inc., it publishes the Pacific Daily News. Styling itself

as the “Voice of the Pacific,” this daily newspaper is virtually the

only source of news for many islands in the western and central

Pacific.

PROCEEDINGS BELOW

DeRoburt filed this action for defamation over six years ago on

October 2, 1978. The complaint and first amended complaint

asserted that the May 30 article falsely and maliciously accused

DeRoburt of personally lending government funds to the Mar-

shall Islands Political Status Commission (the “MIPSC”), of

committing serious crimes under the laws of Nauru, and of inter-

fering with the internal affairs of the Marshall Islands in violation

of accepted standards of international diplomacy.

* SE

3

Gannett moved for dismissal of counts | and 2 of the complaint

on the ground that Nauruan law did not apply, and for summary

judgment on the remaining counts based on an asserted absence

of actual malice. The District Court denied the motion in its

entirety. DeRoburt v. Gannett Co., 83 F.R.D. 574 (D. Haw.

1979). It held that “the libel law of Nauru together with the

Firs: Amendment safeguards of New York Times v. Sullivan and

its progeny” would govern DeRoburt’s claim. 83 F.R.D. at 580-

83. The court further held that DeRoburt had raised genuine

issues of material fact as to Gannett’s actual malice. 83 F.R.D.

at 583-585.

DeRoburt then moved to amend the complaint to conform it to

evidence adduced in discovery and to implement the District

Court’s holding that the libel law of Nauru governed. The sec-

ond amended complaint added the June 29 article as a basis for

liability and divided the allegations of falsity into two categories:

those concerning the identification of DeRoburt as the maker of

the loan and his reported activities in connection therewith, and

those concerning Gannett’s characterization of the loan as secret,

illegal and improper. The third amended complaint was identi-

cal in substance to the second amended complaint and increased

the ad damnum.

During discovery, Gannett’s employees categorically refused to

disclose the identity of their sources. Cisco Uludong, the May 30

article’s author, admitted that the statements at the heart of the

defamation claim—those concerning DeRoburt’s alleged involve-

ment in the loan—were based solely on unnamed “sources,” but

refused to disclose any information concerning how or from

whom he had supposedly obtained his facts. Uludong Deposition

at 89-90, 376-77, 422-32, 472, 484-85. John Simpson, the man-

aging editor of the Pacific Daily News, admitted that he had

deliberately destroyed copies of his reporter’s notes and memo-

randa containing the name of the source or sources so that they

could not be subpoenaed as evidence:

After I had got this material together, I reflected that

there then was material that possibly could be subpoenaed

4

that existed. You had told me that a suit was coming.

And I said to myself, “If the material doesn’t exist, it can't

be subpoenaed.” So | destroyed it.

Simpson Deposition at 29-30.

Upon DeRoburt's motion to compel disclosure of sources, the

District Court ordered (1) that Gannett be compelled to disclose

the sources, (2) that upon failure to disclose within sixty days of

the order, a presumption would arise that Gannett had no sources,

and (3) that disclosure of the sources within a reasonable time

before rial would remove the presumption. DeRoburt v. Gan-

nett Co., 507 F. Supp. 880 (D. Haw. 1981). in its subsequent

second pretrial order, the court held that a reasonable time for

disclosure had passed and that Gannett would be barred from

introducing at trial “any evidence that Mr. Uludong had any

source for the stories giving rise to this litigation.” Trial was sct

for November 9, 1982.

On August 6, 1982, Gannett moved to dismiss the complaint

for failure to state a claim on which relief could be granted based

on the act of state doctrine. The District Court granted the

motion on October 13, 1982. DeRoburt v. Gannett Co., 548 F.

Supp. 1370 (D. Haw. 1982). While its reasoning was not

entirely clear, the court concluded that

the issues raised by the defendants’ characterization of the

loan are sufficient alone to raise an effective act of siate

defense, and therefore it need not decide whether the ques-

tions surrounding DeRoburt's involvement in the loan

implicate act of state considerations . . . That such an

examination must be prevented can be discerned simply by

supposing that the jury will find in defendants’ favor on all

relevant issues.

548 F. Supp. at 1383-84 (footnote omitted).

DeRoburt then filed motions for reconsideration and for leave

to file an amended complaint on October 22, 1982. The proposed

fourth amended complaint dropped ali allegations asserting the

5

legality and propriety of the loan made by DeRoburt's predeces-

sors. The proposed complaint asserts simply that Gannett’s arti-

cles defamed DeRoburt by falsely accusing him of performing an

act characterized as secret, illegal and improper. The District

Court denied both motions on November 30, 1982, holding that

the issue of DeRoburt’s “involvement” in the loan required an

impermissible inquiry into the “motivation” of a foreign state.

DeRoburt v. Gannett Co., 551 F. Supp. 973 (D. Haw. 1982).

On appeal, the Ninth Circuit unanimously reversed and

remanded the case for further proceedings:

After a review of the fourth amended complaint, this court

believes the balance tips in favor of the plaintiff and

against the application of the act of state doctrine. As

pleaded, this case has become one more akin to a misiden-

tification situation. Although resolution of the instant

controversy might to some degree encroach on areas best

left untouched by the judiciary, this court believes any

such intrusion would be minimal and plaintiff should not

be barred by the application of the act of state doctrine.

DeRoburt v. Gannett Co., 733 F.2d 701, 704 (9th Cir. 1984.)

The Ninth Circuit recognized that Respondent may well be able

to maintaicx this action without intruding upon those areas in

which the act of state doctrine precludes judiciary inquiry. The

Ninth Circuit unanimously denied Gannett's petition for a

rehearing and rejected its suggestion for a rehearing en banc.

Gannett did not seek a stay of the Ninth Circuit's mandate, and

the case was remanded to the District Court for further

proceedings.

At a hearing on remand held on December 6, 1984, the District

Court denied Gannett’s application for a stay pending this

Court’s disposition of the instant petition, ordered the filing and

service of the fourth amended complaint, established a schedule

for final discovery and set a firm trial date for August 6, 1985.

6

BACKGROUND OF THE CASE

In the six weeks prior to a scheduled referendum in the Mar-

shall Islands, the Pacific Daily News published two articles con-

cerning a loan supposedly made and delivered by Hammer

DeRoburt, as President of the Republic of Nauru, to the Mar-

shall Islands Political Status Commission (“MIPSC”). The

May 30 article, authored by Cisco Uludong, Gannett’s Saipan

reporter and a political activist, charged that Hammer DeRoburt,

shortly after his reelection, made a secret, illegal and improper

loan to the MIPSC after his predecessors in office had turned

down a prior loan request for fear of being accused of “meddling”

in Micronesia’s internal affairs. It also stated that DeRoburt

flew to the Marshall Islands for the express purpose of delivering

the proceeds of the loan. The article is reprinted in full in appen-

dix F to the Petition.

The May 30 article's statements concerning DeRoburt are

undeniably false. Government officials in both Nauru and the

Marshall Islands have repeatedly stated under oath that

DeRoburt simply had nothing todo with the loan. The statement

of David Lang, Nauru Secretary for Justice at the time, is

representative:

26. * * * ®* As I have made clear:

(a) The plaintiff did not make the loan;

(b) The plaintiff did not hand over the cheque;

(c) The plaintiff was not present when the cheque for

the loan was handed over;

(d) The cheque was handed over in Nauru and not in

the Marshalls;

(¢) The plaintiff was not President of Nauru, was not a

member of the Cabinet, was not a member of the

board of RONFIN [Republic of Nauru Finance

Corporation] in relation to the loan and was not

party to any decision in relation to the loan.

7

27. The plaintiff was elected President of Nauru on the

resignation of President Harris on May 11, 1978, after the

loan was made and complete.

Affidavit of David Lang, at 12.’ See also Affidavit of Atlan

Arien, Speaker of the Marshall Islands Nitijela (legislature), at

2, 17, 9 (“The story of May 30, 1978 is unequivocally false.

While there have been transactions involving the Marshall

Islands Nitijela and The Republic of Nauru Finance Corporation

..., His Excellency, Hammer DeRoburt was in no way involved

in these transactions... . At no time was Hammer DeRoburt a

participant on any basis whatever in any of the transactions

involving the Marshall Islands Nitijela and Marshall Islands

Constitutional Convention during the period February to mid-

May, 1978, when such transactions took place.”).

The June 29 article was authored by Gannett reporter Paul

Addison. Headlined “Nauru Officials Admit Lending Separat-

ists’ Loan,” the article repeated the defamation contained in the

May 30 article, stating: “Sources have said that shortly after his

re-election in early May, DeRoburt flew to the Marshalls to

deliver the separatist Marshalls Political Status Commission a

$600,000 check.” The article further reported that two Nauru

government officials, David Lang and Peter Jones, had “refused

to answer any questions about the loan.” The June 29 article is

reproduced in full in appendix G to the Petition.

Again, discovery evidence demonstrated not only that Lang

and Jones had responded to questions about the loan but that the

content of their responses explicitly informed Addison that the

statements subsequently republished were entirely faise:

1. As in the Court of Appeals, Gannett grossly mischaracterizes

certain documents al ly “linking [DeRoburt] to the loan” and cites

to a Marshallese resolution “thanking him for his involvement in the

loan.” Petition at 11 1.8. In fact, the resolution in question mentions

“financial assistance,” not a “loan,” and specifically thanks “the Honor-

able Kinza [sic] Dowiyogo, the President of the Republic of Nauru ar

the time of the financial assistance” (emphasis added), and only men-

tions DeRoburt in keeping with normal diplomatic courtesies because he

was the Nauruan President when the resolution of thanks was passed.

8

I replied, “ .. . I regard your story as largely fabricated.

Before publishing it, your newspaper could not have

checked its 2ccuracy with anyone who really knew about

the loan at all. You alleged that Hammer DeRoburt

played a major part in the loan. In fact, as I’ve told you,

he was out of office when it was made and did not have the

slightest thing to do with it, let alone fly to the Marshalls

with the cheque.”

Affidavit of David Lang, at i1-12.

REASONS FOR DENYING THE WRIT

I.

THE ISSUES RAISED ON THIS PETITION FROM A NON-FINAL

ORDER ARE NEITHER RIPE NOR APPROPRIATE FOR THIS

COURT'S CONSIDERATION

A. Any Ruling On The Act of State Doctrine Should

Await Further Development Of The Record

The Ninth Circuit’s opinion in this case contemplated the pos-

sibility of further proceedings regarding the applicability of the

act of state doctrine. Only the further narrowing of the issues in

preparation for trial and the development of a trial record will

enable the District Court and any reviewing court to determine

whether the act of state doctrine is necessarily implicated.

The act of state doctrine “is, in its origins and essences, a

federal rule mandating a choice of law by which to judge the

validity of the official actions of sovereign states.” Sharon v.

Time, Inc., No. 83 Civ. 4660, slip op. at 11 (S.D.N.Y. November

9, 1984). As this Court has stated:

{The doctrine] does not deprive the courts of jurisdiction

once acquired over a case. It requires only that, when it is

made to appear that the foreign government has acted in a

given way on the subject-matter of litigation, the details of

such action or the merit of the result cannot be questioned

but must be accepted by our courts as a rule for their

decision.

9

Ricaud vy. American Metal Co., 246 U.S. 304, 309 (1918).

Under this view, dismissal is appropriate only when the court’s

inability to invalidate a foreign act of state precludes a possibility

of any relief for an opposing party. Sharonv. Time, Inc., slip op.

at Il.

To the extent that the act of state doctrine is implicated at all in

this lawsuit, Respondent is confident that he can proceed to trial

under the fourth amended complaint and obtain a judgment with-

out treading in areas precluded by that doctrine. If, following a

trial on the merits, a contention is made that plaintiff has been

unable to avoid the effects of the act of state doctrine, the District

Court, the Ninth Circuit Court of Appeals, and ultimately this

Court on certiorari will have the opportunity to review that judg-

ment. At this juncture, in a six year old case where the parties

are poised to complete discovery and proceed to trial, any consid-

eration of dismissal on the ground of the act of state doctrine

would be premature. See Temistocles Remirez de Arellano v.

Weinberger, No. 83-1950, slip op. at 39, 49 (D.C. Cir. October 5,

1984) (en banc); Associated Container Transportation ( Austra-

lia) Ltd. v. United States, 705 F.2d 53, 62 (2d Cir. 1983).

Simply stated, the act of state issue is not yet ripe for this Court’s

review. See Brotherhood of Locomotive Firemen & Enginemen

v. Bangor & A. R. Co., 389 U.S. 327, 328 (1967) (per curiam).

Gannett does not argue that the principles applied by the Ninth

Circuit panel create a conflict with the positions of the other

courts of appeals. In faci, Gannett’s primary point is that the

panel misapplied its own Circuit’s view of the act of state doc-

trine—a point which the Ninth Circuit judges unanimously

rejected when they-declined to review the panel’s decision en

banc. Respondent knows of only two American libel cases in

which the defendant has asserted the act of state doctrine: this

case and Sharon v. Time, Inc., No. 83 Civ. 4660, slip op.

(S.D.N.Y. November 9, 1984). Judge Sofaer’s Sharon deci-

sion permitting the case to go to trial is fully consistent with the

Ninth Circuit’s decision in this case. Under these circumstances,

this interlocutory order refusing to dismiss the complaint presents

10

legal issues that are neither “fundamental to the further conduct

of the case,” United States v. General Motors Corp., 323 US.

373, 377 (1945), nor of “peculiar gravity and general impor-

tance,” Hamilton Shoe Co. v. Wolf Brothers, 240 U.S. 251, 258

(1916). Gannett offers no compelling reason to justify the issu-

ance of the Writ at this stage.

B. This Court Should Not Entertain Arguments

Not Presented To The Courts Below

In a desperate about-face, Gannett now argues that its state-

ments concerning DeRoburt are absolutely privileged under the

First and Ninth Amendments to the Constitution because

DeRoburt is a foreign head of state. Gannett neglected to raise

this issue in either lower court. Thus, there are crucial questions

for which there is no record support. For example, Gannett

baldly asserts that President DeRoburt, as a head of state, enjoys

“ready access to the media.” Petition at 22. Yet, there has been

no record developed with regard to DeRoburt’s presumed access

to the press.’ In fact, DeRoburt lacks the access to the media

that heads of larger states may sometimes have, since his isolated

island nation is not heavily populated and does not even have iis

own daily newspaper. Gannett does not dispute that the only

regular source of news in the Pacific region is the Pacific Daily

News itself. Most importantly, Gannett actually represented to

the District Court that it was not making an absolute immunity

argument:

An even more obvious “straw man” argument is

DeRoburt’s claim that “Gannett again claims absolute

immunity from liability because plaintiff is a foreign gov-

ernment official.” .... The fact that DeRoburt is a foreign

government official is not critical to this motion.

2. Gannett’s only specific evidence regarding DeRoburt’s access to

the media is its self-serving citation to its own interview of him in April,

1978.

ee 4s ne

1]

Reply Memorandum to Plaintiff's Memorandum in Opposition to

Defendants’ Motion to Dismiss (filed September 2, 1982). Gan-

nett’s failure to present the issue of absolute immunity to either

the District Court or the Court of Appeals should preclude this

Court’s consideration of the issue. FTC v. Grolier, Inc., 462 US.

19, 103 S. Ct. 2209, 2212 n.6 (1983); United States v. Lovasco,

431 U.S. 783, 788 n.7 (1977).

Like the act of state issue, Gannett’s strained absolute privilege

argument presents no authority conflicting with’prior decisions of

this Court or of another court of appeals. In Gannett’s own

words, the issue’s lack of importance “is demonstrated by the

absence of any reported United States cases in which a foreign

government or foreign official has sued for statements describing

the official-acts of that government or official.” Petition at 26.

The Court should not address Gannett’s recently concocted abso-

lute privilege argument.

\

} I.

/

TRIAL UNDE THE FOURTH AMENDED COMPLAINT WILL

NOT REQUIRE THE COURT AND JURY TO ADDRESS THE

LEGALITY, VALIDITY OR MOTIVATION OF ANY ACT OF STATE

Although the act of state doctrine precludes adjudication of the

legality, validity\or motivation of a sovereign act of a foreign

state, Alfred Dunhill of London, Inc. v. Republic of Cuba, 425

U.S. 682 (1976); Banco Nacional de Cuba v. Sabbatino, 376

U.S. 398 (1964); Underhill v. Hernandez, 168 U.S. 250 (1898),

such legality, validity and motivation are no longer issues in this

case. Examination of the substantive elements of Hammer

DeRoburt’s libel claim and of the permissible defenses thereto

shows that the Court of Appeals was manifestly correct in deter-

mining that the act of state doctrine does not mandate dismissal

of the case.

The falsity issue here is identical to that presented in every

defamation case under American law. DeRoburt must simply

prove publication of a false statement about him. Gannett will

12

be free, but not required, to prove the truth of its statements.

Proof of falsity here arises in the most straightforward context

imaginable in libel law: that of misidentification. Gannett’s arti-

cles reported that Hammer DeRoburt, as President of Nauru,

made a secret, illegal and improper loan. The heart of the defa-

mation is in Gannett’s false identification of Hammer DeRoburt

by name as the perpetrator of an act socharacterized. DeRoburt

will show that he never performed such an act, and that the mere

association of his name with actions called secret, illegal and

improper has defamed him. -

As the District Court recognized, the libel comprises two fac-

tual elements: the charge of making a loan and its characteriza-

tion as secret, illegal and improper. The flaw in the District

Court's reasoning was its assumption that DeRoburt must offer

evidence and the court or jury must make findings on both ele-

ments to establish falsity, when in fact they must address only the

misidentification element. Specifically, DeRoburt will prove the

following historical facts:

(a) He did not make the 1978 loan described in the

story;

(b) His predecessors as President did not turn down an

application for a loan from the Marshall Islands legisla-

ture; a loan was approved, closed and funds delivered on

May 10, 1978 by the Governments of President Dowiyogo

and President Harris while DeRoburt was out of office and

leading the opposition in Parliament; and

(c) the Marshallese did not renew or make a request

for any loan to DeRoburt after he took office on May 11,

1978, and he neither approved any loan nor flew to the

Marshall Islands to deliver any check.

Evidence establishing these facts will satisfy DeRoburt’s prima

facie case on falsity. DeRoburt need not prove that the loan

attributed to him by Gannett was “open, legal and proper”

because he never made any loan. In this respect, Gannett’s

charge is false and defamatory solely because Gannett attributed

13

an act it described as secret, illegal and improper to the wrong

person.

In cases where journalists have falsely accused the wrong per-

son of breaking the law or other improper conduct, plaintiffs have

never been required to prove the legality or propriety of the

conduct falsely imputed to them. See, e.g., Ocala Star-Banner

Co. v. Damron, 401 U.S. 295 (1971) (newspaper erroneously

reported that plaintiff, rather than his brother, had been charged

with perjury); Brewer v. Memphis Publishing Co., 626 F.2d 1238

(Sth Cir. 1980) (plaintiffs wife mistakenly identified by name

and photograph as woman visiting Elvis Presley in hotel suite;

imputation of cuckoldry to plaintiff and adultery to his wife),

cert. denied, 452 U.S. 962 (1981); Ryder v. Time, Inc., 557 F.2d

824 (L.C. Cir. 1976) (omission of middle initial and address

caused public confusion of plaintiff with another attorney who

had been suspended from practice); Harkaway v. Boston Herald

Traveler Corp., 418 F.2d 56 (1st Cir. 1969) (plaintiff named as

law partner of underworld figure who was not an attorney);

Washington Post Co. v. Kennedy, 3 F.2d 207 (D.C. Cir. 1925)

(plaintiff's age and profession given in identifying criminal with

same name as plaintiff); Mathis v. Philadelphia Newspapers,

Inc., 455 F. Supp. 406 (E.D. Pa. 1978) (plaintiff's picture mis-

takenly published as that of bank robber with same name);

Liquori v. Republican Co., 5 Med. L. Rep. (BNA) 2180 (Mass.

App. 1979) (plaintiff's address published as that of convicted

criminal with same name): News Leader Co. v. Kocen, 173 Va.

95, 3 S.E.2d 385 (1939) (plaintiff's address given as that of

criminal with same name).

DeRoburt does not need to prove anything about the character-

istics of the actual loan made by his predecessors in office. If a

publication states that A committed a murder, and A proves at

trial that B in fact caused the death, it adds nothing to A’s libel

case to prove that B’s action did not constitute murder, or was

justified, or that B was acquitted. If a newspaper states that A

has entered into a bigamous marriage, and A proves at trial that

he is single and the article in fact concerns his business partner B,

14

he would have no reason to prove that B’s marriage actually is not

bigamous. Similarly, if DeRoburt proves at trial that he was

misidentified as a maker of an illegal loan, positive evidence of the

legality of a loan made by his predecessors adds nothing to proof

of falsity.

Under these cirz:umstances, the District Court’s holding that

“resolution of the central issues in this case. . . will inevitably lead

to this court’s exam:ning or ‘sitting in judgment on’ the validity,

legality and motivation of the government of Nauru in making

the 1978 loan to the Marshall Islands,” was properly reversed. In

accordance with the allegations of the fourth amended complaint,

DeRoburt’s proofs concerning the actions of his predecessors will

be limited to establishing the simple historical facts underlying

the actual loan to the Marshall Islands—who made the loan,

when and where the loan was made, and how the loan was

made—to establish that he was not involved. In these circum-

stances, the court and jury will not need to examine or adjudicate

why his predecessors made the loan or whether the loan was valid

under any law.

Such a limited and tangential inquiry into the circumstances

surrounding a sovereign act is clearly permissible under the act of

state doctrine. As one court has observed in holding the doctrine

inapplicable to a claim of breach of contract and refusal to deal,

“*Precluding all inquiry into the motivation behind or circum-

stances surrounding the sovereign act would uselessly thwart

legitimate American goals where adjudication would result in no

embarrassment to executive department action’... . [The plain-

tiff] does not ask the court to pass judgment on any foreign

sovereign’s act or policy.” Northrop Corp. v. McDonnell Doug-

las Corp., 705 F.2d 1030, 1048-49 (9th Cir.), cert. denied,

—US. , 104 S.Ct. 156 (1983) (emphasis added) (quot-

ing Industrial Investment Development Corp. v. Mitsui & Co.,

594 F.2d 48, 55 (Sth Cir. 1979), cert. denied, 445 U.S. 903

(1980)). In Mitsui, an antitrust case involving the development

of timber resources in Indonesia, the court stated:

i

15

[Neither the validity of [Indonesia’s] regulations nor

the legality of the behavior of the Indonesian government

is in question here. The mere fact that members of the

Indonesian government were to play a part in the alleged

scheme does not insulate defendants’ accountability. .. .

* * * *

To determine whether there has been a violation of Ameri-

can antitrust law it is not necessary to resolve the propriety

of Indonesia’s failure to issue a cutting license.

594 F.2d at 49, 53. In Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d

Cir.), cert. denied, 434 U.S. 984 (1977), a decision on which

Gannett heavily relies and whose broad holding was criticized

explicitly in Mitsui and implicitly in Northrop, the dissenting

member of the panel observed that the act of state doctrine Goes

not

prohibit judicial scrutiny of the conduct of foreign offi-

cials. Indeed, the very assertion of an act of state defense

requires the court to examine into the nature of the con-

duct complained of and its relationship to the foreign sov-

ereign. See Alfred Dunhill of London, Inc. v. Republic of

Cuba .... Federal courts have not hesitated to receive

evidence concerning the acts of foreign officials and the

role played by American citizens in motivating such acts

.... The proscription of the doctrine is against judicial

determination of the validity of the acts of a foreign sover-

eign... . and judicial redress of grievances predicated

upon a finding of invalidity.

Id. at 79-80 (Van Graafeiland, J., dissenting) (citations omit-

ted). See also United States v. Pink, 315 U.S. 203 (1942);

3. Gannett claims that “[t}he line of cases expressly barring adjudi-

cation of this issue [of who was responsible for an act of state] remained

unbroken until the Ninth Circuit panel ignored them in this case.”

Petition at 14n.8. This “line of cases” however, has little to do with the

issue here. See American Banana Co. v. United Fruit Co., 213 U.S. 347

(1909) (to recover, plaintiff must show sovereign acts of Panamanian

government to be illegal under U.S. antitrust laws); Clayco Petroleum

Corp. v. Occidental Petroleum Corp., 712 F.2d 404 (9th Cir. 1983),

cert. denied, 104 S. Ct. 703 (1984) (plaintiff could only succeed if it

showed successful bribe of foreigis official); Hunt v. Mobil Oil Corp.,

16

Shapleigh v. Mier, 299 U.S. 468 (1937); Phoenix Canada Oil

Co. v. Texaco Inc., 560 F. Supp. 1372, 1381 (D. Del. 1983);

D’ Angelo v. Petroleos Mexicanos, 398 F. Supp. 72, 77-78 (D.

Del. 1975); Reavis v. Exxon Corp., 90 Misc. 2d 98%, 396

N.Y.S.2d 774 (Sup. Ct. 1977) (act of state doctrine does not bar

examination and interpretation of legal effect of acts of state

where validity is not in issue).

Most significantly, in Sharon v. Time, Inc., No. 83 Civ. 4660,

slip op. at 9-10 (S.D.N.Y. November 9, 1984), the only other

reported American libel decision to address the act of state doc-

trine, the court held:

By contrast, the litigation here involves no challenge to the

validity of any act of state. With respect to Sharon’s

alleged acts, no one is suggesting that these acts—by

which Time claims Sharon condoned the massacre of

unarmed noncombatant civilians—have validity in the

sense that they cannot be attacked. All agree—lIsrael, the

United States, and the world community—that such

actions, if they occurred, would be illegal and abhorrent.

The issue in this litigation is not whether such acts are

valid, but whether they occurred. (emphasis added).

Viewed in the light of the proscriptions of the act of state

doctrine, DeRoburt’s evidence concerning facts, circumstances,

and occurrences relating to the making of the loan by his prede-

cessors does not implicate any act of state concerns. The legality,

validity and motivation of acts of the Republic of Nauru are

$50 F.2d 68 (2d Cir.), cert. denied, 434 U.S. 984 (1977) (damage if

any resulted from acts of Libyan government); Occidental Petroleum

Corp. v. Buttes Gas & Oil Co., 331 F. Supp. 92, 110 (C.D. Cal. 1971),

aff'd, 461 F.2d 1261 (9th Cir.), cert. denied, 409 U.S. 950 (1972)

(antitrust claim would require “proof of damage resulting from for-

bidden conduct” of foreign state); General Aircraft Corp. v. Air

America, Inc., 482 F. Supp. 3, 6 (D.D.C. 1979) (alleged injury resulted

directly from acts or decisions of a foreign government); Bokkelen v.

Grumman Aerospace Corp., 432 F. Supp. 329, 333 (E.D.N.Y. 1977)

(necessary inquiry into why Brazilian government denied import

mpeg Clearly, these decisions are all factually distinguishable from

this case.

17

simply not relevant to the truth or falsity of the Petitioners’

statements.*

Nor are such issues material to any defense of truth that Gan-

nett might muster. Even if the merits of Gannett’s defense were

properly before the Court on a motion to dismiss, Gannett’s

defense of truth at trial will be limited to rebutting DeRoburt’s

proof that the following statements are false:

Sources say that shortly after his reelection earlier this

month, Nauru President Hammer DeRoburt . . . gave the

separatists $600,000 of the $1 million they originally

requested.

The sources said Marshallese separatist leaders had

ea‘lier approached DeRoburt’s predecessors about the

loan but were politely turned down because Nauru offi-

cials did not want to be accused of “meddling” in Microne-

sia’s internal affairs.

4. Gannett argues that this Court must consider the “context in

which the so-called ‘historical facts’ would have to be adjudicated.”

Petition at 14n.6. If context were the determining factor, every action

involving an act of state, even tangentially, would be barred by the act of

state doctrine. Clearly this is notthelaw. See, e.g., Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 423 (1964); Associated Container

Transportation (Australia) Ltd. v. United States, 705 F.2d 52, 61 (2d

Cir. 1983); Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d

1030, 1040 (9th Cir. 1983), cert. denied, 445 U.S. 903 (1980).

Gannett cites Buttes Gas & Oil Co. v. Hammer, [1981]3 W.L.R. 787

(H.L.). Not only is Buttes an English decision cited for a proposition

of purely federa! law, it was not a misidentification case. The action

there was dismissed not under the traditional act of state doctrine (on

which Gannett relies here), but rather on a general theory of abstention

akin to the political question doctrine (which Gannett does not even

discuss). See Sharon v. Time, Inc., supra, slip op. at 15. Moreover,

the truth or falsity adjudication in Buttes necessarily would have

required deciding whether the Ruler of Sharjah conspired to fraudu-

lently backdate a decree. Finally, Gannett mischaracterizes the dispo-

sition in Buttes. Gannett’s quotation regarding the slander claim was

pure dicta, since the plaintiff Buttes voluntarily offered to stay that

claim and the Court held merely that “he should be held to this offer.”

Id. at 811.

BEST AVAILABLE COPY,

The Marshallese renewed their request to DeRoburt

after he took office. He approved it and flew to the Mar-

shalls to personally deliver the check, sources said.

See Petition, appendix F.

For purposes of the act of state doctrine, Gannett’s defense of

truth is a mirror image of DeRoburt’s claim of falsity. Alioto v.

Cowles Communications, Inc., 623 F.2d 616, 620 (9th Cir.

1980), cert. denied, 449 U.S. 1102 (1981) (defendant's proof of

truth is limited to gist or sting of libel alleged by plaintiffs). Like

DeRoburt's proof, the defense is limited to the bare historical

facts and circumstances concerning the inechanics of the loan.

No question of validity, legality or motivation of an act of state is

involved, and evidence on that point is irrelevant.

Gannett bears the burden of showing that the act of state

doctrine bars this action. Alfred Dunhill of London, Inc. v.

Republic of Cuba, 425 U.S. 682, 690-96 (1976). Gannett can

carry that burden only if it shows that a verdict for DeRoburt

“would necessitate direct judicial inquiry into [the acts of state] .”

Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030,

1048 (9h Cir.) cert. denied, --U.S.—, 104 S.Ct. 156 (1983).

As the Ninth Circuit stated in Northrop:

Whether [the plaintiff] can eventually establish the

amount of damages without implicating foreign procure-

ment decisions, and whether that implication is permissi-

ble, are disputed questions which we need not address at

this stage of the proceedings.

id. at 1048. Because Gannett cannot show that plaintiff is una-

ble to recover without implicating act of state concerns, it has not

carried its burden of proof.’ Neither should this Court address

5. Inthe midst of its argument that adjudication of truth or falsity is

barred by the act of state ine, Gannett slyly states that “this libel

action would require a jury to decide whether it is defamatory to say

Oe ee Se re eee ee eeneee

p in another country.” Petition at 11 (emphasis added).

om irrelevant to Gannett’s “truth or falsity” argument, the statement

is incorrect. Gannett itself characterized the loan as “illegal,” and that

unambiguous allegation is arguably defamatory as a matter of law. In

any event, defamatory meaning looks only to a statement's effect on a

19

such remote or speculatively’ based issues at this stage of the

proceedings. The Ninth Circuit recognized that further act of

state issues may arise in further pretrial proceedings and at trial

and rightly saw no barrier to proceeding despite that possibility.

It is high time to move this six-year old case to trial.

Il.

GANNETT IS NOT ENTITLED TO ABSOLUTE IMMUNITY FOR

DEFAMATORY STATEMENTS PUBLISHED WITH ACTUAL

MALICE UNDER EITHER THE FIRST OR NINTH AMEND-

MENTS TO THE CONSTITUTION

Whether or not properly raised, see Point I B supra, Gannett’s

absolute immunity argument has no merit. Conceding that no

judicial decision has ever recognized an absolute privilege for

false statements of fact concerning foreign officials (and marshal-

ling such authorities as the Declaration of Independence), Gan-

nett asks this court to overrule New York Times Co. v. Sullivan

and its progeny to prohibit libel actions by “foreign heads of

state” even for knowing lies. The proposition is legally without

merit and has extraordinarily pernicious implications. Accord-

ingly, this Court should not entertain argument on this point.

person's reputation in the minds of its readers, and that inquiry impli-

cates no act of state concern.

6. Gannett's resort to speculative argument is another indication of

the lack of substance in its position here. See Petition at 17-18. We

doubt very much that the hypothetical libel suit postulated there, based

loosely on the facts of Clayco Petroleum Corp. v. Occidental Petroleum

Corp., 742 F.2d 404 (9th Cir. 1983), cert. denied, —US.—, 104 S.Ct.

703 (1984). would be dismissed under the act of state doctrine if the

hypothetical plaintiff simply denied making any payment whatsoever,

whether legal! or not.

20

A. This Court Has Repeatedly Held That The First

Amendment Does Not Grant Absolute Immunity for

False Statements of Fact Published with Actual Mal-

ice and Nothing In The Record of This Case

That Abandonment of the Rule of New York Times

Co. v. Sullivan ts Appropriate

Gannett argues that the First Amendment provides an absolute

privilege for defamatory statements regarding the official acts of

foreign heads of state. In support, Gannett relies on the two

rationales used to justify adoption of a conditional privilege in

New York Times Co. v. Sullivan and its progeny: (1) the superior

access to the media presumed to be available to the public official

or public figure; and (2) the “normative conclusion” that a public

official or public figure “assumes the risk” of defamatory state-

ments and is less deserving of recovery than a private individual.

Gannett makes these arguments in the absence of any record

evidence on the points. Neither rationale supports the adoption

of an absolute immunity for defamation in the context of this

case.

Gannett urges this Court to overrule virtually every libel deci-

sion rendered in the past twenty years, including, among others:

Herbert v. Lando, 441 U.S. 153 (1979); Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974); Time, Inc. v. Pape, 401 U.S. 279

(1971); St. Amant v. Thompson, 390 U.S. 727 (1968); Rosen-

blatt v. Baer, 383 U.S. 75 (1966); Garrison v. Louisiana, 379

U.S. 64 (1964); and New York Times v. Sullivan, 376 U.S. 254

(1964). In each of these cases, this Court balanced the public

official's or public figure’s fundamental right to his reputation

with the public interest in protecting the press from inordinate

defamation liability. In New York Times , this Court specifically

rejected the view of Justices Black, Goldberg and Douglas that

the press should enjoy absolute immunity for statements regard-

ing the official conduct of public officials. 376 U.S. at 293 (con-

curring opinion of Black, J.); /d. at 297 (concurring opinion of

Goldberg, J.). This court also rejected that minority view in

Garrison, Rosenblatt, St. Amant and Gertz. In Gertz, 418 US.

at 341, the majority noted:

21

The need to avoid self-censorship by the news media is,

however, not the only societal value at issue. If it were,

this Court would have embraced long ago the view that

publishers and broadcasters enjoy an unconditional and

indefeasible immunity from liability for defamation. . . .

Such a rule would, indeed, obviate the fear that the pros-

pect of civil liability for injurious falsehood might dissuade

a timorous press from the effective exercise of First

Amendment freedoms. Yet absolute protection for the

communications media requires a total sacrifice of the

competing value served by the law of defamation. (cita-

tions omitted).

In Herbert v. Lando, 441 U.S. at 158-60, 176, this Court stated:

Civil and criminal liability for defamation was well estab-

lished in the common law when the First Amendment was

adopted, and there is no indication that the Framers

intended to abolish such liability.... New York Times

and Butts effected major changes in the standards applica-

ble to civil libel actions. Under these cases public officials

and public figures who sue for defamation must prove

knowing or reckless falsehood in order to establish

liability.

Given the required proof, however, damages liability for

defamation abridges neither freedom of speech nor free-

dom of the press... . Only complete immunity from

liability for defamation would [relieve the media of the

burdens of libel litigation], and the Court has regularly

found this to be an untenable construction of the First

Amendment.

Gannett urges this Court to abandon the balancing approach

and to grant the media an absolute license to make statements

about foreign officials with knowing or reckless falsity. But this

Court has repeatedly recognized that there is no constitutional

value in false statements of fact, whatever their subject matter.

E.g., Keeton v. Hustler Magazine, —US.—, 104 S.Ct. 1473

(1984); Gertz v. Robert Welch, Inc., 418 US. at 340.

22

Neither lies nor false communications serve the ends of

the First Amendment, and no one suggests their desirabil-

ity or further proliferation.

St. Amant v. Thompson, 390 U.S. at 732.

For the use of the known lie as a tool is at once at odds with

the premises of democratic government and with the

orderly manner in which economic, social, or political

change is to be effected. Calculated falsehood falls into

that class of utterances “which are no essential part of any

exposition of ideas, and are of such slight social value as a

step to truth that any benefit that may be derived from

them is clearly outweighed by the social interest in order

and morality... .”

Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (citation omit-

ted). See Linn v. United Plant Guard Workers of America, 383

U.S. 53, 63 (1966) (“malicious libel enjoys no constitutional

protection in any context”).

Gannett urges this Court to overrule this precedent and to hold

that even defamatory statements published with knowing or reck-

less falsity are absolutely protected under the First Amendment.’

This new thrust by the media is hardly limited to cases brought by

“foreign heads of state.” Arguments similar to Gannett’s have

been advanced and rejected in two recent district court cases. In

Westmoreland v. CBS, 10 Med. L. Rep. (BNA) 2417, 2418

(S.D.N.Y. 1984), Judge Leval dealt with a claim of absolute

immunity for “criticism” of highly placed domestic government

officials:

I consider it inappropriate to rule in advance of trial on

these novel contentions. The consideration of such far

reaching changes in law, not only in the district court but

in higher courts on review, is better based on the experi-

ence of a full trial record. Accordingly, these branches of

7. The District Court in this case has already ruled that there is

sufficient evidence of falsity and actual malice to require submission of

the case toa jury. See DeRoburt v. Gannett, 83 F.R.D. 574 (D. Haw.

1979) (denying Gannett’s motion for summary judgment).

a eee

23

defendants’ motion are denied with leave to renew at the

conclusion of trial.

In Sharon v. Time, Inc., No. 83 Civ. 4660, slip op. (S.D.N.Y.

November 9, 1984), where the plaintiff was and is a cabinet

minister in a foreign government, Judge Sofaer rejected the argu-

ment outright:

The short answer to these arguments is that the Supreme

Court has already weighed all the considerations Time

advances and has chosen alternative means for protecting

the strong interest in encouraging publication of views

relating to official conduct.

Id., slip op. at 27. The Sharon court found that the actual malice

standard itself gives “the press an especially high degree of pro-

tection in suits by public officials.” Jd. The court also noted that

the reversal in New York Times of the common law rule that the

defendant has the burden of proving truth as a defense, coupled

with an array of federal and state law privileges such as the

opinion and fair report defenses, have the effect of prohibiting

“the imposition of liability on any defendant who has acted in

good faith.” /d., slip op. at 27. Similarly, the recent reaffirma-

tion of the doctrine of independent appellate review in cases

where the actual malice standard applies further protects the

press from undue liability for defamation. See Bose Corp. v.

Consumers Union Inc., —-U.S.—, 104 S.Ct. 1949 (1984).

If adopted, Gannett’s rie would permit the media to elude

liability for highly defamatory, utterly false and wholly

fabricated statements. Even a totally fabricated story attributed

to non-existent “sources” charging that a foreign public official

had personally murdered half the population of his country would

%. Time's conduct in the Sharon case is not unlike Gannett’s con-

duct here. Time stated “it had learned” certain facts regarding General

Sharon. Similarly, here, the articles state that “sources said” that

President DeRoburt committed the alleged acts. As in Sharon, “the

protection of opinion and fair comment should not be expanded to

encourage the press, with actual malice, to pass off its opinions or

findings in a form that unfairly enhances the weight these opinions

would otherwise receive in public debate.” Jd. at 30.

24

be absolutely immune. Such a rule would completely abolish the

longstanding belief embodied in the decisions of this Court that

all individuals have a fundamental interest in their reputations.

See, e.g., Herbert v. Lando, 441 U.S. at 169; Time, Inc. v. Fire-

stone, 424 U.S. 448, 455-57 (1976); Gertz v. Robert Welch, Inc.,

418 U.S. at 348-49. In the words of Justice Stewart:

The right of a man to the protection of his own reputation

from unjustified invasion and wrongful hurt reflects no

more than our basic concept of the essentia! dignity and

worth of every human being—a concept at the root of any

decent system of ordered liberty.

Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (concurring opin-

ion). See also Herbert v. Lando, 441 U.S. at 195 (dissenting

opinion of Marshall, J.). ,

Access to the media (even if Gannett had presented evidence of

it) is an inadequate substitute for a defamation action. “[A]n

opportunity for rebuttal seldom suffices to undo harm of defama-

tory falsehood. Indeed, the law of defamation is rooted in our

experience that the truth rarely catches up with a lie.” Gertz v.

Robert Welch, Inc., 418 U.S. at 344.n.9. See Bruno & Stiliman,

Inc., v. Globe Newspaper Co., 633 F.2d 583, 589 n.5 (Ast Cir.

1980) (“The ‘access to media’ argument is no more than a make-

weight.”). Gannett’s access to the media argument would vitiate

an important goal of the law of defamation, that of deterrence.

As Justice Stewart has recognized:

Moreover, the preventive effect of liability for defamation

serves an important public purpose. For the rights and

values of private personality far transcend mere personal

interests. Surely if the 1950’s taught us anything they

taught us that the poisonous atmosphere of the easy lie can

infect and degrade a whole society.

Rosenblatt v. Baer, 383 U.S. 75, 93-94 (1966) (concurring opin-

ion). See id. at 86 (society has a “strong interest in preventing

and redressing attacks on a reputation.”).

25

Similarly, Gannett’s reliance on the normative conclusion that

a public official is less deserving of reputational protection

because he has “assumed the risk” of adverse publicity, whatever

it may mean in the context of a qualified privilege or immunity, is

not compelling here. Absolute immunity would result in consid-

erable unfairness to the public official who would be left entirely

at the mercy of deliberate or reckless attacks on his reputation.

See, e.g., Goldwater v. Ginzberg, 414 F.2d 324 (2d Cir. 1969),

cert. denied, 396 U.S. 1049 (1970). No public figure or public

official forfeits entirely his right to vindicate reputational injury

and no public policy is served by mandating such forfeiture. Due

to their prominence, these individuals are in some ways “more

likely to suffer from malicious attacks than are private citizens.”

Appleyard v. Transamerican Press Inc., 539 F.2d 1026 (4th Cir.

1976), cert. denied, 429 U.S. 1041 (1977).°

B. Calculated or Reckless Falsehood Regarding the Offi-

cial Conduct of Foreign Heads of State Is Not Abso-

lutely Protected Under the Ninth Amendment

Gannett next argues that the Ninth Amendment coupled with

national tradition exemplified by the Declaration of Indepen-

dence grant it absolute immunity—the equivalent of a license to

defame foreign heads of state. Since no court has ever recog-

nized such a Ninth Amendment right, Gannett is forced to reiy on

its perception of history. Its argument is entirely meritless.

9. If accepted, Gannett’s arguments based on “media access” and

“assumption of the risk” could not logically be limited to foreign heads

of state. Certain domestic public officials and many public figures enjoy

infinitely greater access to the media than do heads of small foreign

nations. Are they to be next in the line of fire of the absolute immunity

advocates? Moreover, every well-known movie, television or athletic

star in this country has assumed the risk of adverse publicity to the same

if not to a greater extent than heads of small nations. Media apologists

routinely advance the absolute immunity argument notwithstanding

this Court’s rejection of it in New York Times. E.g., A. Lewis, New

York Times v. Sullivan Reconsidered: Time to Return to “The Central

Meaning of the First Amendment,” 83 Colum. L. Rev. 603 (1983).

This Court, not the media and their advocates, has determined that the

“central ae of the First Amendment” does not protect calculated

or reckless falsehoods regarding any person, public or private.

26

With a disrespect for history that would be shocking were its

desperation not so apparent, Gannett compares its conduct

here—the commercial publication of a news story based on undis-

closed sources—with the nobie, bold, personal and public state-

ment of grievances by our Founding Fathers against King George

II] in the Declaration of Independence. King George III was not

simply a foreign public official. Rather, he was the despotic ruler

of the American colonies during a period of revolution, a ruler

whose subjects had every right, under fundamental principles of

natural law and justice (as they declared), to cite his oppressive

actions while throwing off his unbearable yoke. What the

Founding Fathers and the colonial press objected io was the

English King’s waging of war against the colonies. Thcir exer-

cise of a basic right—to declare independence from the

tyrant—has absolutely nothing to do with the issues in this case.

The only decision of this Court on which Gannett attempts to

rely is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980). However, in that case, this Court concluded that the

public’s right of access to criminal trials is necessary to protect

First Amendment rights, not that the Ninth Amendment inde-

pendently elevates that historical right to constitutional dimen-

sions. This Court concluded, “without the freedom to attend

such trials, which people have exercised for centuries, important

aspects of freedom of speech and ‘of the press could be eviscer-

ated.” Jd. at 580 (citation omitted).

The Richmond Newspapers decision does not assist Gannett.

First, an individual’s right to vindicate his reputation is one

“which people have exercised for centuries.” By contrast, the

conditional privilege for publicly disseminated false statements of

fact regarding public officials is of relatively recent origin. See,

e.g., D. Noel, Defamation of Public Officers and Candidates, 49

Colum. L. Rev. 875, 891-96 (1949). Secondly, this Court in

Richmond Newspapers held that an accused has no “right to a

private trial.” 448 U.S. at 580. This case, however, involves the

individual’s right to redress for reputational harm. Thus, unlike

27

Richmond Newspapers, this case involves directly competing fun-

damental rights which must be balanced.'° New York Times and

subsequent decisions have struck the balance and opted for a

conditional privilege only. E.g., Gertz v. Robert Welch, Inc., 418

U.S. at 342-43. Thirdly, and most importantly, this Court has

repeatedly stated that there is no constitutional value in false

statements of fact. Thus, under the Richmond Newspapers rea-

soning, the purported right of absolute privilege could exist only if

it emanated from some constitutional guarantee other than the

First Amendment. Gannett has not and cannot cite to any other

such guarantee.

The Ninth Amendment is essentially a rule of construction

designed to insure that the maxim expressio unius est exclusio

alterius would not be applied to the Bill of Rights. Charles v.

Brown, 495 F. Supp. 862, 863 (N.D. Ala. 1980). The Ninth

Amendment has never been held to provide an independent

source for any substantive right. Quilici v. Village of Morton

Grove, 695 F.2d 261, 271 (7th Cir. 1982), cert. denied,

—U.S.—, 104 S.Ct. 194 (1983); Sequoyah v. Tennessee Valley

Authority, 480 F. Supp. 608, 611 (E.D. Tenn. 1979), aff'd, 672

F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980). Gan-

nett must therefore look elsewhere for the origin of its claimed

absolute immunity.

Gannett cautions that “if this action is allowed to proceed to

trial, American courtroom doors will be thrown open to foreign

leaders using vast national treasury resources whose primary pur-

pose is to suppress published accounts of their and their country’s

Official acts.” Petition at 29. Obviously, Gannett’s imagined

dire consequences are identical to those which failed to convince

this Court to adopt an absolute immunity rule in New York Times

and its progeny. More importantly, Gannett’s false characteri-

zation of DeRoburt as a foreign official with vast resources capa-

ble of intimidating the press ignores Gannett’s own conduct in

10. In fact, given the pervasive and strong interest in preventing and

redressing attacks upon reputation, Rosenblatt v. Baer, 383 U.S. at 86,

Gannett’s argument would support the view that DeRoburt’s rights are

also protected under the Ninth Amendment.

28

this case. One of the largest and most powerful publishers in the

world, Gannett is hardly a poor, threatened libel defendant.

Armed with libel insurance and its own vast resources, Gannett

has retained a battery 0° competent lawyers to engage in pro-

tracted litigation fraugh. with delay and obstruction. For exam-

ple, Gannett’s attorneys have made numerous burdensome

motions in this case, with the latest motion for dismissal on the

pleadings made just two months before the scheduled trial in this

action. The portrayal of Gannett as a champion of justice with

limited resources to defend against this action is inaccurate at

best.

Gannett further contends that “a head of state libel plaintiff

can control access to vital documents, information and witnesses

necessary to adequately defend the libel action.” Jd. at 23.

Again, this argument ignores Gannett’s conduct in this case. As

noted above, a Gannett editor deliberately destroyed documents

essential to plaintiff's case to prevent their being subpoenaed.

Further, Gannett has steadfastly refused to reveal the purported

confidential sources on which its defamatory statements were

solely based. Finally, in the face of overwhelming proof of fal-

sity, see discussion supra, Gannett continues its disingenuous

assertion that the articles’ statements about DeRoburt are some-

how true. E.g., Petition at 6 n.2. The words of Judge Sofaer

about the defendant Time in his recent Sharon decision are pecu-

liarly apt to describe Gannett’s posture:

That this [litigation] process has proved enormously

expensive, and painfully contentious, is as much the prod-

uct of Time’s all-out litigation strategy as of any plan by

plaintiff to intimidate the press. Despite the fact that

every single Time witness claims to have had no evidence

that plaintiff knew in advance that the massacre would

occur, Time has chosen to pour enormous resources into

proving precisely that. Time may be entitled to enhance

through such tactics the risks plaintiff faces in suing for

defamation. But it would be pure fantasy to treat Time in

this case like some struggling champion of free expression,

defending at great risk to itself the right to publish its view

of the truth.

Ae RAC OD UR Ee a NR tena wc ant Mes sisal Stone aL Vo

29

Sharon v. Time, Inc., slip op. at 31.

Gannett contends that “the factors to be balanced in a case

where a foreign head of state brings a libel suit for statements

about his official acts are substantially different from those in

libel cases involving domestic public officials.” Petition at 23-24.

Not only does Gannett fail to give a single reason to justify this

conclusion, it ignores the greater access to the American press

which domestic public officials enjoy. On the Island of Nauru,

there are no daily or mass media. The only means by which

Hammer DeRoburt can restore his reputation is this lawsuit. He

is entitled to his day in court.

30

CONCLUSION

For all the reasons set forth above, this Court should deny the

Writ of Certiorari_in this case. Only the development of a full

trial record will permit proper adjudication of Gannett’s act of

state argument which, in any event, is meritless. The press is not

entitled to an absolute license to defame foreign government

officials.

Respectfully submitted,

CADWALADER, WICKERSHAM & TAFT

*JOHN J. WALSH

KEVIN W. GOERING

One Wall Street

New York, New York 10005

Tel.: (212) 908-7000

GEORGE M. ALLEN

GENEVIEVE S. RICHARDSON

3116 Mauka Tower

737 Bishop Street

Honolulu, Hawaii 96813

Tel.: (808) 523-5448

Attorneys for Respondent

Of Counsel:

PETER SHERIDAN, Q.C.

2 Crown Office Row,

The Temple

London, England EC4Y7HJ

* Counsel of Record