Petition for Writ of Certiorari — Lauderback v. American Broadcasting Cos.

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Office - Supreme Court. US

FILED

NOV 14 1984

ALEMANDER L. STEVAS.

No. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

GARO LAUDERBACK,

Petitioner,

vs.

AMERICAN BROADCASTING COMPANIES, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

STEPHEN F. AVERY

CORNWALL, AVERY, BJORNSTAD & SCOTT

407 Grand Avenue

Spencer, lowa 51301-0346

(712) 262-1630

Attorneys for Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

BASIC QUESTION

Can a national telecast portray a non-charged private in-

dividual as a criminal and claim the defense of opinion, not

fact.

SUB QUESTIONS PRESENTED

I. In a libel case does the court commit error in focusing on

the publisher’s state of mind as opposed to the information

given to the reader and listener when determining whether the

defense of fair comment exists?

II. Does the common law privilege of fair comment exist for

ABC when its telecast ‘‘20/20 News’’ implies the existence of

undisclosed defamatory facts which form the basis of the theme

of the telecast?

III. What effect does the actual malice standard expressed in

New York Times v. Sullivan have on the coinmon law privilege

of fair comment?

IV. Should motions for summary judgments in libel actions

be reviewed in a light different from motions for summary

judgments in other damage actions?

V. When the telecast ‘‘20/20 News’’ portrayed Garo Lauder-

back as a criminal and ABC was notified prior to the telecast

that the county attorney did not intend to prosecute Lauderback

out of the “‘sting’’ tape, is there sufficient proof of possible

malice to defeat a motion for summary judgment?

VI. Where a statement may have been understood by the

average viewer to be either defamatory or non-defamatory,

should the issue as to whether it is fact or opinion be left to the

jury’s determination?

TABLE OF CONTENTS

Page

ek sae inks peu ba aK GNA ome v0 6 i

EE ee, iii

NS ER 6 sah ARS 6 v.dds eanevebes ves l

CO EEE ee a l

Constitutional Provisions Involved .................. 2

Ce ia ews ekaeev ees 2

Argument for Allowance of Writ..................4. 5

I. The Eighth Circuit Committed Errors Of Law

In Its Resolution Of The Fair Comment /Opi-

IE og cit ce cer newvenerece 5

I]. Whether The Eighth Circuit Erred In Gran-

ting ABC’s Motion For Summary Judgment . 10

Ill. The Eighth Circuit Erred In Holding That

The Inferences Or ‘‘Sting’’ Of The Telecast

As It Related To Lauderback Was A Pro-

tected Expression Of Opinion.............. 15

ann da a's awa ve aes 20

Appendix:

A. District Court Order August 1, 1983 ........ A-1l

B. District Court Order September 13, 1983 .... A-4

C. - Opinion of Eighth Circuit Court of Appeals... A-6

D. Transcript of May 14, 1981, 20/20telecast... A-17

TABLE OF AUTHORITIES

Cases:

Anderson v. Low Rent Housing Com’n, 304 N.W.2d

po, Pa RE Pane ee reer nk pee 12

Brown v. Herald Co., 698 F.2d 949 (8th Cir. 1983) ..... 6

Caron v. Bangor Pub. Co., 470 A.2d 782 (Me. 1984) ... 16

Cianci v. New Time Publishing Co., 639 F.2d 54 (2d

tO ee ee epee Fe yo reraeee 18

Clark v. American Broadcasting Co., 684 F.2d 1208

(6th Cir. 1982), cert. denied, 103 S.Ct. 1433 (1983) 12

Fitzgerald v. Penthouse, Int’l, Ltd., 639 F.2d 1076

Ry RU 065 RAR ATA ew 14

Gertz v. Welch, 418 U.S. 323 (1974) 2... cc ieee nese 6

Gleichenhause v. Carlyle, 597 P.2d 611 (Kan. 1979) .... 12

Good Gov’t Group of Seal Beach, Inc. v. Superior

Court, 586 P.2d 572 (Cal. 1979), cert. denied, 441

C8 er er erry reer ome 16

Greenbelt Cooperative Pub. Ass’n v. Bressler, 398

ON ESPN ay RINE SEE i Se gn ope GR yny mats Pa amN eRe 19

Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir. 1977) 18

Hutchinson v. Proxmire, 443 U.S. 111 (197%) ......... 11

Information Control Corp. v. Genesis One Computer

Corp., 611 F.2d 781 (9th Cir. 1980) ............. 17

Lal v. CBS, 551 F.Supp. 356 (E.D. Pa. 1982).......... 14

Lauderback v. American Broadcasting Companies,

741 F.2d 193 (8th Cir. 1984)........... 6, 9, 10, 15, 16, 17

Letter Carriers v. Austin, 418 U.S. 264............... 18, 19

Lewis v. Time, 710 F.2d 549 (9th Cir. 1983) ...........

Lyons v. New Mass Media, Inc., 453 N.E.2d 451 (Mass.

RR ire htt: Ce ke oe a ese

Marchiondo v. New Mexico State Tribune Co., 648

ceed ee Ce SU, SEED bb kk dc wesc davanccears

McCarney v. Des Moines Register and Tribune Co.,

BOOTS. W 2G BEE We TGR) onc cess cccassccss

McManus v. Doubleday & Co., 513 F.Supp. 1383

ER RS ee ee erry ere rere Pere

Mount v. Sadik, slip. op. (S.D.N.Y. April 10, 1980)....

Myers v. Boston Magazine Co., Inc., 403 N.E.2d 376

0 re: sary ae ee ern

Nader v. de Toledano, 408 A.2d 3! (D.C. 1979), cert.

Gemled QG6 U.S. SEFE CIGD oii cic Sa eee ees

Nevada Ind. Broadcasting Corp. v. Allen, 664 P.2d

ye ear Tree ee

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

Pease v. Telegraph Pub. Co., 426 A.2d 463 (N.H. 1982)

Pep v. Newsweek, Inc., 553 F.Supp. 1000 (S.D.N.Y.

PS i kaa CeCe Eee ek ke eeen ba veeeeeeeecee

Renwick v. News and Observer Pub. Co., 304 S.E.2d

mo ee er erry Pree et sere

Rinaldi v. Holt Rinehart and Winston, Inc., 42 N.Y.2d

369, cert. denied, 434 U.S. 969 (1977). ...........

Rinaldi v. Viking Penguin, 425 N.Y.S.2d 101 (1980)....

Treutler v. Meredith Corp., 455 F.2d 255 (8th Cir. 1972)

Yiamouyiannis v. Consumer’s Union, 619 F.2d 932 (2nd

Cir.) cert. denied, 449 U.S. 839 (1980) ...........

16

1]

Vi

Miscellaneous:

W. Prosser, Torts 747-748 (4th ed. 1971) ............. 15

Restatement of the Law of Torts, Second, §566,

GOED ban Vs < secu ewewh ewortabd ens 8, 15

Restatement of the Law of Torts, Second, §617,

SS, | re er eee ner 14

U.S. Constitution, Amendment! ................... 2, 17

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

GARO LAUDERBACK,

Petitioner,

VS.

AMERICAN BROADCASTING COMPANIES, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Garo Lauderback petitions for a writ of certioreri to review

the judgment of the United States Court of Appeals for the

Eighth Circuit entered in the above case on August 21, 1984.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eighth Circuit is reported at 741 F.2d 193. The order of the

United States District Court For The Northern District of lowa-

Central Division, Honorable Judge McManus is unreported.

JURISDICTION

The judgment of the Court of Appeals was entered on August

21, 1984. The jurisdiction of this Court is invoked under 28

U.S.C. §1254.

tv

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the Constitution of the United

States provides:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the G vernment for a redress of grievances.

STATEMENT OF THE CASE

Garo Lauderback filed an action for libel against American

Broadcasting Companies, Inc., (ABC) in the United States

District Court for the Northern District of Iowa on June 19,

1981. Jurisdiction in that action was based on diversity of

citizenship. Defendant ABC moved for summary judgment:on

January 12, 1983. On August 1, 1983, the district court denied

the motion for summary judgment. (Ap. A-1) On September

13, 1983, the district court certified its order for interlocutory

appeal. (Ap. A-4) On August 21, 1984, the United States

Court of Appeals for the Eighth Circuit reversed the district

court’s denial of ABC’s motion for summary judgment and

remanded the case to the district court for proceedings in accor-

dance with the opinion. (Ap. A-6)

This case involves the question of whether ABC is entitled to

the protection of the fair comment privilege for a non-public

figure and in addition whether the procedure of summary judg-

ment is appropriate on these facts.

On May 14, 1981, ABC broadcast is ‘20/20 News”’ television

news program. Approximately one-third of that program con-

cerned a criminal investigation concerning insurance fraud,

which investigation had been conducted in Emmet County,

Iowa.

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The insurance investigation in Emmet County, lowa, arose

through the efforts of John Martens, the Emmet County At-

torney, who obtained the assistance of ABC to secretly

videotape ‘‘sting’’ interviews with insurance agents in northwest

lowa. The pre-taping arrangement between the County At-

torney’s office and ABC placed no restrictions on ABC as to

their use of the secret videotapes which they obtained during the

sting operation.

On January 13, 1981, Garo Lauderback answered a request

directed to his employer, Michael Crawford, and attempted to

sell nursing home insurance to ‘‘decoys’’ Carl and Dagney

Matheson, who were portraying potential buyers in their

cooperation with the County Attorney’s office. This sales

presentation by Lauderback was secretly taped by ABC and

portions of that secret videotape were reproduced and made a

portion of the May 14, 1981, naiional telecast on ‘‘20/20

news.”’

The producer of the May 14, 1981, telecast and the assistant

general counsel for ABC were both informed by Emmet County

Attorney John Martens prior to the telecast that Garo Lauder-

back would not be prosecuted from the sting tape. ABC was in-

formed by Martens that the County Aitorney’s office was still

looking into Lauderback’s contact with another Emmet County

resident, a Lucy Chalstrom, and the sale to her of a nursing

home policy. In addition, ABC was aware that the Iowa In-

surance Commissioner was reviewing all agents taped and infor-

mation obtained during the investigation since the Insurance

Commissioner’s office was cooperating with County Attorney

Martens’ investigation. The telecast by ABC pictured Lauder-

back in his sales presentation made during the ‘‘sting’’ tape. In

addition, the telecast contained references to Lauderback and

his attempts to determine whether a nursing home policy which

he was selling to Lucy Chalstrom would be effective at a local

facility. In fact, Lauderback had not contacted the facility’s

director, but rather the executive secretary for the facility and

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thus merely exaggerated during the ‘‘sting’’ tape and had not

outright lied. This was known to ABC prior to its telecast and

this also was not disclosed to the viewers.

The producer of the telecast did discuss with his assistant Jef-

fries and reporter Geraldo Rivera removing Lauderback’s name

and picture from the show prior to airing the telecast on May

14. In addition, the producer discussed with assistant general

counsel the removal of Lavderback from the telecast. ABC fur-

ther received a request froin Lauderback and his wife not to in-

clude Lauderback in the show after the producer phoned

Lauderback to advise him that he had been secretly videotaped

on January 13 and that portions of that show were going to be

used on a ‘*20/20 News”’ telecast. Garo Lauderback was never

indicted by a grand jury although grand juries are referred to in

the telecast. No county attorney’s information was ever filed

against Garo Lauderback although the county attorney was pic-

tured and referred to in the telecast. The telecast showed

various court proceedings and each of the other insurance

salespersons who were named or pictured in the telecast were

either indicted, charged, or involved in the pleas of guilty pic-

tured in the telecast.

The written transcript of the telecast is attached in the appen-

dix at A-17. The video tape of the telecast is available for

viewing by the Court.

The telecast pictured the headline in the local newspaper, The

Daily News, which headline read ‘‘Emmet Grand Jury Indicts

Two lowa Insurance Agents’’. While this headline was on the

screen, the voice-over is by Geraldo Rivera and he states, ‘‘The

fact that most policies do not cover extended nursing home care

has received some publicity.’”’ The next picture on the telecast

after Rivera finished that sentence is Garo Lauderback. His pic-

ture is on the screen While Geraldo Rivera is stating, ‘‘So the

agents just say, ‘Oh, it’s the other guys who are doing the steal-

ing.”’’ Thereafter, a portion of Garo Lauderback’s sting tape is

shown on the screen with Garo Lauderback talking. (In the

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transcript this is the portion marked ‘‘salesman’’ Ap. A-33).

The telecast pictured the newspaper headiine referring to the

indictment of two agents. It showed plea bargains, grand jury

reporting, the prosecutor, and courtroom scenes. It used such

terms as ‘‘crook’’, “‘liar’’, ‘‘white collar crime’’, ‘‘insurance

fraud’’, ‘‘misconduct’’, unethical’’, ‘‘renegade agents’’, ‘‘dregs

of the insurance industry’, “‘illegal conduct’’, and ‘‘stealing’’.

ARGUMENT FOR ALLOWANCE OF WRIT

I. The Eighth Circuit Committed Errors Of Law In Its

Resolution Of The Fair Comment/Opinion Privilege Issue.

Defendant American Broadcasting Companies claimed that

its broadcast was privileged as a statement of opinion under

common law principles and sought a summary judgment on that

basis in the U.S. District Court for the Northern District of

lowa. After District Judge Honorable Edward J. McManus

denied that motion, the U.S. Court of Appeals for the Eighth

Circuit reversed. Any reading of the circuit court’s opinion

demonstrates that the court committed reversible legal error in

three ways. First, the court of appeals erred in its application of

the common law of fair comment by confusing the common law

with constitutional defamatior principles. Second, tie court er-

red in its resolution of the issue of whether the defendant’s

broadcast implied the existence of undisclosed defamatory facts

and thus was not privileged by fair comment. Third, the court

erred by applying to a private individual plaintiff the constitu-

tion! actual malice test in its evaluation of the defendant’s

publication-time state of mind.

A. The Court Of Appeals Confused Common Law Fair

Comment Principles With The Constitutional Actual

Malice Privilege.

The Court of Appeals, while ruling that ABC’s statements

were entitled to the common law fair comment privilege, stated

_— on

that ‘‘not all information favorable to the plaintiff need be

disclosed as the basis of a published opinion’’ and cited as sup-

port Brown v. Herald Co., 698 F.2d 949 (8th Cir. 1983). See

Lauderback v. American Broadcasting Companies, No. 741

F.2d 193 (8th Cir. 1984). (Ap. A-6). The court’s opinion

shows clearly that it confused the fact-opinion issue with that of

actual malice. Brown, the cited case, merely restates the com-

mon view that failure to include in a publication favorable facts

about a libel plaintiff does not alone show with convincing clari-

ty the existence of actual malice. But the issue of whether the

presentation by the defendant of his publication in a particular

manner sheds any light on the publisher’s state of mind has

nothing to do with whether that publication is, in the first in-

stance, entitled to the common law privilege of fair comment.

The fair comment privilege focuses on the information given to

the reader and protects statements of opinion only if they are

accompanied by a factual presentation sufficient to allow

readers to independently reach a judgment as to the credibility

of the publisher’s opinion. Gertz v. Welch, 418 U.S. 323

(1974). The constitutional privilege of actual malice, on the

other hand, focuses on the publisher’s state of mind and does

not concern itself independently with the interpretation of the

publication by the reader or the omission of critical facts, except

to the extent they demonstrate that state of mind. Gertz, supra;

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

This confusion injured the plaintiff. Good faith and lack of

recklessness are sufficient to render a publication privileged

under the Sullivan actual malice test. It is this test which the

court of appeals erroneously intertwined with its resolution of

the common law fair comment issue. This approach was er-

roneous for two reasons. First, the fair comment privilege is

deserved only if the publication is accurate enough to allow in-

dependent reader evaluation. Accuracy, not state of mind, is

key. While opinions can never be deemed false, the ‘‘facts’’ on

which the opinion is based may be. ‘‘(T)he ‘facts’ on which an

opinion is based are either true or false. Wnen they are true,

a

and when they are stated, the first amendment shields from

liability an opinion that arises from them.”’ Lewis v. Time, 710

F.2d 549 (9th Cir. 1983). Second, even were state of mind the

proper consideration for a fair comment analysis, invoking ac-

tual malice would have been improper because the plaintiff is

not a public official or public figure.

The court of appeals judged ABC’s conduct only by the lesser

actual malice standard appropriate for determination of con-

stitutional privilege, and not by the more strict standard re-

quired before invocation of the common law fair comment

privilege.

B. The Eighth Circuit Erred In Determining That ABC

Was Entitled To The Common Law Fair Comment

Privilege.

As the court of appeals judged the defendant’s conduct by an

incorrect, lesser standard, it is no surprise that its resolution of

the fair comment issue was erroneous. If the proper fair com-

ment standards are applied, it is clear that ABC’s statements

were not entitled to the privilege. ABC’s television broadcast

did not contain facts sufficient to allow viewers to independent-

ly evaluate ABC’s expression of its opinion that the plaintiff

was among the ‘‘flim-flam’’ insurance men who “‘tell lies’’ to

cheat the elderly. See Transcript of 20/20 Broadcast, (Ap.

A-27). The broadcast did not tell viewers that the taped con-

duct which thcy witnessed had been reviewed by prosecuting

authorities, who had decided that criminal charges were not

warranted, although ABC knew this. See Order of District

Judge Edward J. McManus, No. 1C 81-3031, August 1, 1983.

(Ap. A-3) The defendant’s broadcast stated broadly, after

a discussion of criminal conduct and charges, that the plaintiff

was “‘under formal investigation.”” (Ap. A-34). Had viewers

been informed that this investigation dealt not with the

pictured conduct and its criminality in ABC’s eyes but rather

concerned an apparent good-faith mistake in another matter,

aig ae,

they might have reached a quite different opinion than that ex-

pressed by ABC. The average viewer likely would have conclud-

ed that the plaintiff was not a shameless crook but rather an

honest but relatively less talented salesman. The defendant’s

broadcast also misrepresented the plaintiff’s conduct in trying

to determine whether a nursing home policy would be effective

at a local facility. The broadcast showed the plaintiff claiming

that he had verified the effectiveness of the policy with the

facility director and then showed the director denying any

knowledge of the plaintiff. (Ap. A-33). In fact, the plain-

tiff had obtained verification, albeit erroneous, of the plan’s ef-

fectiveness with the director’s executive secretary after waiting

unsuccessfully to see the director. Had viewers known that the

plaintiff had tried to reach the director and ultimately obtained

confirmation from a member of his staff, and had thus merely

exaggerated and not boldly lied, they might have reached a very

different opinion. Viewers undoubtedly feel more sympathetic

to a man frustrated by bureaucracy who ultimately exaggerates

than one who creates fiction out of whole cloth.

C. The Court Of Appeals Misstated The Law Regarding

Implication Of Undisclosed Defamatory Facts.

The common law privilege of fair comment is not available to

one whose publication implies the existence of further, un-

disclosed defamatory facts which formed the basis for its stated

opinion. Kestatement (Second) of Torts §566. The court of ap-

peals effectively destroyed this requirement with one stroke of

the pen. While addressing the factual bxsis issue, the court

wrote that, ‘‘By its very nature, a media investigation of an in-

dustry conveys the message that all negative facts relevant to the

topic will be revealed.’’ Lauderback, (Ap. A-15). Thus, the

court of appeals made the rather startling pronouncement that

.0 viewer could ever get the impression that a publisher’s opi-

nion was based on further defamatory, undisclosed facts. Sure-

ly such a pronouncement is not for the court to make.

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D. The Eighth Circuit Erred By Judging The

Defendant’s Publication State Of Mind By The Ac-

tual Malice Standard.

What effect the Sullivan decision has on the common law

privilege of fair comment has never been resolved by this court.

The court did note that the privilege might be unavailable to

those who, while setting forth the factual basis for their opi-

nion, act with constitutionally sufficient culpability, i.e. actual

malice or negligence. See Sullivan, 376 U.S. 254, 292 n.30.

Under such a rule of law, one who acted with negligence while

setting forth the factual basis for its opinion regarding a private

individual’s behavior would not be able to invoke the fair com-

ment privilege in states that choose the Gertz option. Such a

defendant would then be relegated to trying to prove the truth

of all of this factual assertions.

The Eighth Circuit considered this issue but determined that

the fair comment privilege was not defeated because ABC had

not acted with constitutional actual malice. Lauderback (Ap.

A-11). The court’s treatment of the issue was thus erroneous. If

constitutional culpability defeats the common law fair comment

privilege, then the court should have examined whether ABC’s

factual statements were made with negligence. There has been

no claim that the plaintiff is anything other than a private

individual, on whom Iowa law would apparently impose only a

duty to demonstrate simple negligence. See McCarney v. Des

Moines Register, 239 N.W.2d 152 (lowa 1976) (noting with ap-

proval Illinois’ adoption of the negligence standards for private

individuals). ABC’s factual presentation was made negligently,

for it knew before the broadcast that the plaintiff faced no

criminal charges for the conduct featured on the broadcast.

(Ap. A-3, 15). Yet the defendant still stated that the plaintiff

was ‘‘under formal investigation.’’ (Ap. A-34) The fortuitous,

for ABC, fact that the plaintiff was apparently getting an infor-

mal look because of an unrelated, good-faith mistake in another

matter does not change the fact that the defendant’s conduct at

ia Ge

the time of publication was negligent. That being the case, the

defendant should not have been allowed to invoke the common

law fair comment privilege. Rather, the court should have

allowed the jury to interpret what was meant by the statement

that the plaintiff was ‘‘under formal investigation’ and then

allow the defendant the chance to prove the truth of that inter-

pretation.

Ii. Whether The Eighth Circuit Erred In Granting ABC’s

Motion For Summary Judgment.

Judge McManus for the United States District Court for the

Northern District of lowa rejected the ABC’s motion for sum-

mary judgment in this action, concluding that:

(d)efendant’s motivation for including plaintiff in the

**20/20’" programs in insurance fraud is particularly in

question because defendant had been notified prior to the

date of telecast that plaintiff would not be prosecuted for

anything he said or did in the course of the taped sales

presentation. Consequently, summary judgment will be

denied and the remaining factual issues will be left for the

jury.

Lauderback v. ABC, (N.D. Iowa August 1, 1983). (Ap. A-1)

The United States Court of Appeals for the Eighth Circuit

reversed, holding that the statements were privileged opinions

and remanded with directions to grant ABC’s motion for sum-

mary judgment. Lauderback v. American Broadcasting Co.

(Ap. A-6) The decision by the Eighth Circuit is reversible error

in that material issues of fact remain for the jury to determine.

A. Summary Judgment Is Inappropriate In This Action

Because Of The Fact That It Was A Libel Action.

The Eighth Circuit’s decision is based in part on its view that

summary judgment in libel cases is ‘‘particularly appropriate.”’

(Ap. A-15, 16) See also Treutler v. Meredith Corp., 455

F.2d 255, 257 n.1 (8th Cir. 1972); McCarney v. Des Moines

Register and Tribune Co., 239 N.W.2d 152 (lowa 1976). This

view, however, has recently been questioned by the Supreme

Court in Hutchinson v. Proxmire, 443 U.S. 111 (1979). Justice

Burger set forth his concern about the prevalence of summary

judgment in libel cases and the district court’s belief that ‘‘sum-

mary judgment might well be the rule rather than the

exception:’’

Considering the nuances of the issues raised here, we are

constrained to express some doubt about the so-called

“‘rule.”’ The proof of ‘‘actual malice’’ calls a defendant’s

state of mind into question,...and does not readily lend

itself to summary disposition.

Id. at 120 n.9 (citations omitted). Justice Burger not only ques-

tioned the legitimacy of the rule, he strongly suggested that sum-

mary judgment is inappropriate in libel cases. The issue raised

by Justice Burger was addressed directly in March 1980 by the

Court of Appeals for the Second Circuit in Yiamouyiannis v.

Consumer’s Union, 619 F.2d 932, cert. denied, 449 U.S. 839

(1980):

Appellant’s principle claim on appeal is that the district

court erred in granting summary judgment because it

thought, erroneously, that in libel cases summary judg-

ment ‘‘may well be the rule’’ rather than the ‘‘exception’’

....Until more directly advised, we think that this neutral

approach correctly states the rule as it is presently in force:

neither grant nor denial of a motion for summary judg-

ment is to be preferred....Defamation actions are, for

procedural purposes, such as discovery. ..or for summary

judgment, to be treated no differently from other actions;

any “‘chilling effect’’ caused by the defense of a lawsuit

itself... .is simply to be disregarded, to have no force and

effect.

Id. at 940 (emphasis added).

iin A a

In response to this concern, a number of courts have adopted

this ‘‘neutral approach,’’ considering motions for summary

judgment as if they were any other motion for summary judg-

ment. Clark v. American Broadcasting Co., 684 F.2d 1208,

1212 (6th Cir. 1982), cert. denied, 103 S.Ct. 1433 (1983);

Yiamouyiannis v. Consumer’s Union, 619 F.2d 932, 940 (2d

Cir.), cert. denied, 449 U.S. 839 (1980); Pep v. Newsweek, INc.,

553 F.Supp. 1000, 1001 (S.D.N.Y. 1983; McManus v. Double-

day & Co., 513 F.Supp. 1383, 1388 (S.D.N.Y. 1981); Nader v.

de Toledano, 408 A.2d 31, 44-50 (D.C. 1979), cert. denied, 444

U.S. 1078 (1980).

Indeed, the lowa Supreme Court has held that ‘‘(p)arties to a

lawsuit have a right to have their legal theories submitted to the

jury as long as they are supported by the pleadings and substan-

tial evidence.”’ Anderson v. Low Rent Housing Com’n, 304

N.W.2d 239, 249 (lowa 1981). Therefore, the standard that the

Eighth Circuit should have used to review the defendant’s mo-

tion for summary judgment is not a preferential first amend-

ment based standard, but a neutral approach identical to that

used to review any other motion for summary judgment.

B. The Fact That ABC Had Been Notified Prior To The

Telecast That The County Attorney Did Not Intend

To Prosecute Is Enough Proof Of Possible Malice To

Defeat A Motivn For Summary Judgment.

In Gleichenhause v. Carlyle, 597 P.2d 611 (Kan. 1979), the

court reversed summary judgment because the defendant had

been advised of the true facts before he published. The court

stated:

A court should be cautious in granting a motion for sum-

mary judgment when resolution of the dispositive issue

necessitates a determination of the state of mind of one or

both of the parties.

=

Id. at 613. In Mount v. Sadik, slip op. (S.D.N.Y. April 10,

1980), the plaintiff submitted material to defendants contradic-

ting the charges which defendants later reported. The plaintiff

contended that such material must have either convinced the

defendants that the allegations were false or at the very least,

created serious doubts as to the trust of the charges. The court

denied defendants’ motion for summary judgment. /d. In

Rinaldi v. Viking Penguin, 425 N.Y.S.2d 101 (1980), the plain-

tiff had informed the publisher of an error in the first edition

before the publication of a second edition. The second edition

was then published without making the correction which

publisher had promised. As a result, the court reversed the

lower court’s summary judgment for publisher. Jd.

In the instant action, County Attorney Martens had notified

ABC that he had no intention to pursue a criminal prosecution.

(Ap. A-15) In spite of the fact that it had been informed

prior to the broadcast of the truth, ABC stated in its broadcast

that ‘‘Mr. Lauderback is currently under a _ formal

investigation.’”’ (Ap. A-34) Therefore, the Eighth Circuit’s

decision granting summary judgment for ABC should be revers-

ed because a reasonable jury could find malice with convincing

clarity in ABC’s refusal to heed the prior notice of the truth that

Lauderback would not be prosecuted out of the sting interview

and was merely subject to an investigation for an unrelated

good faith mistake.

C. The Eighth Circuit Erred While It Was Considering A

Motion For Summary Judgment By Improperly Tak-

ing It Upon Itself To Resolve The Truth And Implica-

tions Of ABC’s Statement That The Plaintiff Was

Under A Formal Investigation.

Judge McManus found that the truth of ABC’s statement

that the plaintiff was under a formal investigation was a ques-

tion of fact to be determined by the jury.

—"

However, the Eighth Circuit stated that:

Although uncontradicted statements by Martens indicated

that he had decided by May 14, 1981, not to prosecute

Lauderback for his dealings with the Mathesons, there re-

mained a question as to whether Martens would pursue the

criminal prosecution of Lauderback for his dealings with

another client. Thus, ABC had grounds to believe that

Lauderback might be prosecuted....We think that a

viewer would reasonably conclude that had Lauderback

actually been indicted by the date of the broadcast such in-

formation would have appeared in the program.

(Ap. A-15) The Eighth Circuit, in its examination of the un-

disclosed facts on which ABC based its libelous statements,

therefore found as substantially true the statement that Lauder-

back was under a formal investigation and the inference that

ABC would have included information about Lauderback’s in-

dictment if it had been true.

The finding that a material issue of fact is substantially true

requires a determination to be made by the finder of fact.

Restatement (Second) of Torts §617 comment a (1977). See

e.g., Fitzgerald v. Penthouse, Int’l, Ltd., 639 F.2d 1076,

1078-79 (4th Cir. 1981) (allegation that plaintiff attempted to

sell top secret military information to other countries was a

material fact to be determined by the jury); La/ v. CBS, 551

F.Supp. 356, 360 (E.D. Pa. 1982) (issue of fact whether plain-

tiff’s building actually had ‘‘leaky roofs, faulty wiring and other

eyesores’’).

The Eighth Circuit’s finding as substantially true as a matter

of law that ABC had grounds to believe that Martens would

pursue the criminal prosecution of Lauderback is the very kind

of material issue of fact that should have been left for jury

determination. Moreover, the Eighth Circuit’s inference that a

reasonable ‘‘viewer could conclude that had Lauderback actual-

ly been indicted by the date of the broadcast such information

no. yee

would have appeared in the program”’ is also a material issue

that should have been resolved by the jury.

Therefore, it was error for the Eighth Circuit to find that the

disputed facts were true while it was considering ABC’s motion

for summary judgment.

II. The Eighth Circuit Erred In Holding That The Inferences

Or “‘Sting’’ Of The Telecast As It Related To Lauderback Was

A Protected Expression Of Opinion.

A. The Eighth Circuit Erred In Totally Excluding The

Fact Finder From The Determination Of Fact Or Opi-

nion.

The court of appeals in Lauderback states, ‘‘It is for the court

to decide whether a statement is fact or opinion.’’ Such a state-

ment may, however, be an incomplete statement of the law on

this issue. (Ap. A-11, n.6)

Reasons for bringing the statement into question are these:

the U.S. Supreme Court opinion cited can not be read to sup-

port such a broad rule. Although it is abundantly clear that the

court is to determine as an issue of law whether a particular

statement constitutes fact or opinion, Restatement (Second) of

Torts §566, comment (c) (1977), there are questions to be raised

regarding how the court is to make such a determination, and

what role the jury might play.

The determination of whether a statement is one of fact or

opinion is similar to the question of law of whether a statement

is defamatory. Similarly, the determination of whether a state-

ment is defamatory is a question of law for the court. Where,

however, the statement could have been understood by the

average reader to be either defamatory or non-defamatory, the

issue must be left to the jury’s determination. See W. Prosser,

Torts 747-748 (4th ed. 1971).

_— po

The same sort of analysis has been adopted for the fact/opi-

nion question in a clear line of state court opinions. These

courts have held that ‘‘the distinction between fact and opinion

is a question of law...if the statements unambiguously con-

stitutes either fact or opinion. Where, .. .however, the allegedly

libelous remarks could have been understood by the average

reader in either sense, the issue must be left to the jury’s deter-

mination.’’ Good Gov’t Group of Seal Beach, Inc. v. Superior

Court, 586 P.2d 572, 576 (Cal. 1979), cert. denied, 441 U.S. 961

(1979); Pease v. Telezcraph Pub. Co., 426 A.2d 463, 465 (N.H.

1982); Caron v. Bangor Pub. Co., 470 A.2d 782, 784 (Me.

1984); Lyons v. New Mass Media, Inc., 453 N.E.2d 451, 457

(Mass. 1983); Myers v. Boston Magazine Co., INc., 403 N.E.2d

376, 378-79 (Mass. 1980); Renwick v. News and Observer Pub.

Co., 304 S.E.2d 593, 611-12 (N.C. App. 1983); Nevada Ind.

Broadcasting Corp. v. Allen, 564 P.2d 337-342 (Nev. 1983);

Marchiondo v. New Mexico Staite Tribune Co., 648 P.2d 321,

331 (N.M. App. 1982).

Applying this rule to the present case, on ABC’s motion for

summary judgment, the test would be whether the challenged

language can reasonably be read as stating a fact. It seems

rather obvious that the Eighth Circuit made no such analysis of

the statements in the present case. Such finding should be aided

by the ighth Circuit’s apparent admission that the program in-

cluded a ‘‘misleading juxtaposition’’ of the indicted agents, the

bald statement of the court that Lauderback was portrayed as a

“less than honest or scrupulous insurance agent’’ and that

Lauderback was ‘‘currently under a formal investigation.’’ See

Lauderback v. American Broadcasting Companies, (Ap.

A-11).

This case provides an opportunity for the U.S. Supreme

Court to clarify the standard in the fact/opinion question.

Although the Eighth Circuit determined the statement to be

opinion, the court did so by determining ‘‘that a reasonable

—

viewer of the 20/20 broadcast would have recognized that in-

ferences raised about Lauderback’s honesty or about the

truthfulness of his statements were opinions and not legal con-

clusions.’’ See Lauderback (Ap. A-14).

Since the facts were ‘‘legal conclusions’’ the trier of fact and

not the appellate court should make the determination as to

how a reasonable viewer understood the inference of ‘‘sting’’ of

the telecast.

B. The Appropriate Standard For Review Of The

Telecast Is The Information Control Test.

The test which is currently most often applied is the Informa-

tion Control test. This test calls on the judge/jury to ‘‘examine

the statement in its totality in the context in which it was uttered

or published. The court must consider all the words used, not

merely a particular phrase or sentence. In addition, the court

must give weight to cautionary terms used by the person

publishing the statement. Finally, the court must consider all

the circumstances surrounding the statement, including the

medium, by which the statement is disseminated and the au-

dience to which it is published.’’ /nformation Control Corp. v.

Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.

1980).

This telecast portrayed legal settings, legal proceedings,

judges, grand jury, etc.

The total impression is one of legal proceedings and not opi-

nion of ABC.

C. Accusations Of Criminal Conduct, Even If Phrased

As Opinion, Are Not Absolutely Protected By The

First Amendment.

Even if ABC’s statements were properly categorized as opi-

nion, the accusations of criminal conduct portrayed by the

telecast is not absolutely protected by the First Amendment.

Cianci v. New Time Publishing Co., 639 F.2d 54, 63 (2d Cir.

1980); Rinaldi v. Holt Rinehart and Winston, Inc., 42 N.Y.2d

369, 381-82, cert. denied, 434 U.S. 969 (1977).

In Rinaldi, supra, the court made a thoughtful analysis of

how to differentiate between protected and unprotected opi-

nion. Here the court found itself faced with defamatory

statements regarding a sitting judge. The court found that

**(t)}he expression of opinion, even in the form of pejorative

rhetoric, relating to fitness for judicial office or to performance

while in judicial office, is safeguarded.’’ Rinaldi at 950, citing

Letter Carriers v. Austin, 418 U.S. 264, 283-84. “‘Plaintiff may

not recover from defendants for simply expressing their opinion

of his judicial performance, no matter how unreasonable, ex-

treme or erroneous these opinions might be.’’ Rinaldi at 950

citing Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.

1977). For the defendant to state that a Judge is incompetent

and unfit for office is to express an opinion regarding the Judge.

Both opinions, even if falsely and insincerely held, are constitu-

tionally protected if the facts supporting the opinions are set

forth. Rinaldi at 951. Defendant’s assertions, however, that

plaintiff is “‘probably corrupt’’ and that his sentences of certain

defendants were suspiciously lenient, with their strong under-

tones of conspiracy and illegality, rest on a different footing

than his opinions as to plaintiff’s judicial performance. These

words were not used merely in a ‘‘loose, figurative sense’’ to

demonstrate defendant’s strong disagreement with some of

plaintiff's dispositions. (See Letter Carrier’s v. Austin, 418

U.S. 264, 284). The ordinary and average reader would likely

understand the use of these words, in the context of the entire

article, as meaning that plaintiff has committed illegal and

unethical actions. Accusations of criminal activity, even in the

form of opinion, are not constitutionally protected. Rinaldi at

951.

If Rinaldi stands for anything, it must be that there need be

no “‘bald accusation of criminal activity’’ by the defendant.

— on

There can be no doubt that ABC’s statements reached at least

the level that Lauderback was ‘‘probably corrupt’’ and included

‘strong undertones of . .. . illegality.”’ There seems to be no

need for a rule requiring any ‘‘bald accusation’’ when the entire

concern cf defamation law is based upon the conclusions which

the reasonable viewer would draw from the statements.

The statements regarding Lauderback are clearly differen-

tiated from the statements in Letter Carrier’s v. Austin, 418

U.S. 264, 284, and Greenbelt Cooperative Pub. Ass’n. v.

Bresler, 398 U.S. 6. In Greenbelt a newspaper was sued for

republishing a speaker’s comment at a city council mecting that

plaintiff was ‘‘blackmailing’’ the city in connection with pen-

ding negotiations. Justice Stewart wrote for the court that no

one who read the account would have construed that the plain-

tiff was being charged with the crime of blackmail. The word

was ‘‘no more than rhetorical hyperbole, a vigorous epithet us-

ed by those who considered Bresler’s negotiating position ex-

tremely unreasonable.’’ 398 U.S. at 14. The clear implication is

that if an accusation of actual criminal wrongdoing had been

conveyed, ¢.g., a statement that Bresler had threatened a coun-

cilman with exposure of an extramarital episode unless he voted

Bressler’s way, it would have been held actionable, unless within

the privilege of fair reportage of public proceedings.

In Letter Carrier’s v. Austin, supra, the court relied on

Greenbelt in holding that no one could reasonably understand

publication of a well-known definition of a ‘‘scab’’ attributed

to Jack London, as a “‘traitor to his God, his country, his family

and his class,’’ as charging the crime of treason. The words

were protected because defendants were using them “‘in a loose,

figurative sense. . . merely rhetorical hyperbole, a lusty and im-

aginative expression of the contempt felt by union member to

those who refuse to join.”’ 418 U.S. at 284-86.

Statements depicting an insurance agent under an affir-

mative, statutory duty not to misrepresent his product to the

imi Oe

public, in terms such as ‘‘crook,’’ “‘liar,’’ ‘white-collar crime,”’

‘insurance fraud,’’ ‘‘misconduct,’’ ‘‘unethical,’’ “‘renegade

agents,’’ ‘‘dregs of the insurance industry,”’ ‘‘illegal conduct’’

and ‘‘stealing’’ cannot be seen as ‘‘broad, unfocused, wholly

subjective conduct.’’ These are allegations of specific criminal

and unethical conduct. No viewer would conclude that these

terms were being used ‘‘loosely’’ or ‘‘figuratively.”’ Rather,

these terms were used to describe Lauderback in regard to what

ABC portrayed as a ‘“‘sting’’ of illegal and unethical

misrepresentations in the sale of insurance. Under any

reasonable interpretation of the law, these statemenis, even if

clothed as opinion, are actionable.

CONCLUSION

ABC portrayed Garo Lauderback as a criminal to a national

television audience. The district court decided issues of truth

and accuracy existed to be tried.

The Eighth Circuit determined the telecast was opinion, not

fact, and that the undisclosed facts would not alter the average

listener’s interpretation.

The factual questions should be tried at the trial level with a

full evidentiary hearing, not disposed of by summary judgment.

The Court is requested to reverse the Eighth Circuit under

Rule 23.1 and remand the matter to the district court for trial,

or to grant the Petition and allow briefs and argument.

Respectfully submitted,

Stephen F. Avery

CORNWALL, AVERY,

BJORNSTAD & SCOTT

407 Grand Avenue

Spencer, IA 51301

(712) 262-1630

Attorney for Plaintiff

APPENDIX

= ee

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

No. 1C 81-3031

GARC LAUDERBACK,

Plaintiff,

vs.

AMERICAN BROADCASTING COMPANIES, INC.,

Defendant.

ORDER

This matter is before the court on defendant’s resisted motion

for summary judgment, filed January 12, 1983.

Denied.

Plaintiff initiated this action for compensatory and punitive

damages alleging that defendant defamed him during the May

14 and 21, 1981 broadcasts of its television show ‘‘20/20.”’

Defendant now asks the court to grant summary judgment

against plaintiff for two reasons. Defendant contends that the

broadcasts of which plaintiff complains are nonactionable

because they are 1) true as to all statements of fact contained

therein and protected comment as to all other statements and

2) privileged as a report of an official government investigation.

Plaintiff resists defendant’s motion and denies that the broad-

casts were true or constituted a ‘‘report of an official govern-

ment investigation.”’

Briefly, the undisputed facts are as follows: In late 1980, the

Emmet County Attorney’s office initiated an ‘‘undercover’’ in-

surance investigation of Northwest Iowa insurance agents as

related to elderly citizens’ complaints of insurance sales fraud.

The Emmet County Attorney enlisted the aid of defendant to

ay

videotape suspected agents making sales presentations to elderly

citizens who were assisting in the investigation. In return,

defendant was granted the right to use the videotapes on its

‘**20/20’’ program or however it desired. Plaintiff was

videotaped while making a sales presentation and portions of

that videotape were later used in two of defendant’s ‘‘20/20’’

programs.

Summary judgment should not be entered unless the record

indicates that 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...’’ FRCP 56(c). It is a procedure which ad-

vances the salutary objective of avoiding useless, expensive and

time-consuming trials where there is actually no genuine, factual

issue remaining to be tried. Anderson v. Viking Pump, 545

F.2d 1127, 1129 (8th Cir. 1979); Lyons v. Board of Education of

Charleston, 523 F.2d 346, 347 (8th Cir. 1975); see also Bouilles

v. Ricketts, 518 F.Supp. 687, 690 (D.C. Col. 1981).

Here, there are genuine issues to be resolved regarding

damages, the factual accuracy and truth of the portion of the

**20/20’’ reports concerning plaintiff, and defendant’s motiva-

tion in telecasting those programs. Hence, summary judgment

is not proper, unless defendant’s claim of privilege is found to

be justified.

Questions concerning damages, the truth of statements, and

whether or not a libelous meaning was intended or conveyed by

the alleged defamatory statements are for the jury to decide. See

Brown y. First Nat. Bank of Mason City, 193 N.W.2d 547

(Iowa 1972). It is for the court to decide as a matter of law

whether a privilege is available for the libelous communication

in question. Jd.

Defendant claims that the statements made regarding plain-

tiff on the ‘‘20/20’’ programs are privileged as a report of of-

ficial government records and actions. The court cannot agree.

The privilege claimed by defendant is set out in Restatement

(Second) of Torts § 611.

ee

§ 611. Report of Official Proceeding or Public Meeting

The publication of defamatory matter concerning another

in a report of an official action or proceeding or of a

meeting open to the public that deals with a matter of

public concern is privileged if the report is accurate and

complete or a fair abridgement of the occurrence reported.

It is apparent from reading § 611 and the comment and an-

notations applicable thereto that the privilege extends only to

official actions which have been made a matter of public record.

However, the investigation which took place here was a secret

investigation primarily carried out by private parties. No

charges or prosecution resulted from the investigation and it

does not appear that there was an official report or record made

of the investigation.

To allow defendant to claim the privilege in this case would

open the door for widespread abuse of that privilege. In effect,

it would mean that, as long as a news organized agreed to

release its findings to a public prosecutor, it would be free to

conduct its own investigations and disseminate the findings,

without regard for the potential defamatory effect of those fin-

dings. This court will not expand the privilege to such a degree.

Defendant’s motivation for including plaintiff in the

**20/20’’ programs on insurance fraud is particularly in ques-

tion because defendant had been notified prior to the date of

telecast that plaintiff would not be prosecuted for anything he

said or did in the course of the taped sales presentatioi:. Conse-

quently, summary judgment will be denied and the remaining

factual issues will be left for the jury.

It is therefore

/s/ Edward J. McManus

ORDERED Chief Judge

Denied. United States District Court

August 1, 1983.

— he

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

No. 1C 81-3031

GARO LAUDERBACK,

Plaintiff,

VS.

AMERICAN BROADCASTING COMPANIES, INC.,

Defendant.

ORDER

This matter is before the court on defendant’s resisted motion

to certify interlocutory appeal, filed August 22, 1983.

Granted.

On August 1, 1983 the court denied defendant’s snoticn for

summary judgment for the reason that material faz:ual issues

remained and because the record then before the court did not

support defendant’s assertion, that the allegedly libelous

telecasts were privileged communications. Defendant now asks

the court to modify its August 1, 1983 order in accordance with

28 U.S.C. §1292(b) for the purpose of effecting defendant’s

right to an interlocutory appeal of the order. Plaintiff resists

defendant’s motion arguing that an interlocutory appeal would

merely protract and delay plaintiff’s opportunity to be heard on

the merits.

Permission to allow interlocutory appeals should be granted

sparingly and with discrimination. Control Data Corporation

v. International Business Machines, 421 F.2d 323, 325 (8th Cir.

1970). However, the court agrees that, in this case, the question

of whether defendant’s statements are privileged as a matter of

Ee

ny Ioan

law is a controlling one and resolution of that issue prior to trial

would materially advance the ultimate termination of the

lawsuit. Jd. See also Time, Inc. v. McLaney, 406 F.2d 565, 566

(Sth Cir. 1969), cert. denied, 395 U.S. 922 (1969).

It is therefore

ORDERED

The court’s August 1, 1983 order is hereby modified to state,

at the end thereof, ‘‘This order involves a controiling question

of law as to which there is substantial ground for difference of

opinion and an immediate appeal from this order may material-

ly advance the ultimate termination of the litigation.’’

The Final Pre-Trial Conference scheduled for Friday,

September 16, 1983 is continued pending appeal of this matter.

September 13, 1983.

/s/ Edward J. McManus

Chief Judge

United States District Court

—_—

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 83-2381

Garo Lauderback,

Appellee,

v.

American Broadcasting

Companies, Inc.,

Appellant.

Appeal from the United States

District Court for the Northern

District of lowa.

Submitted: February 17, 1984

Filed: August 21, 1984

Before LAY, Chief Judge, HEANEY and BOWMAN,

Circuit Judges.

LAY, Chief Judge.

The American Broadcasting Companies, Inc. (ABC), appeals

from the denial of its summary judgment motion in a libel ac-

tion brought by Garo Lauderback. The district court' found

that material factual issues remained to be resolved and that the

record did not support ABC’s assertion that the allegedly

libelous telecasts were privileged communications. The court

certified its order to this court under 28 U.S.C. §1292(b).

' The Honorable Edward J. McManus, Ch'ef Judge, United States

District Court for the Northern District of Iowa, presiding.

—S— a ee

=

Because we conclude that any inferences relating to Lauderback

were protected expressions of to opinion, we reverse and re-

mand to the district court with directions to grant ABC’s mo-

tion for summary judgment.

FACTS

In 1980, after receiving complaints from senior citizens in

Emmet County, Iowa, John Martens, the county attorney,

decided to conduct an investigation into fraud in the sale of

medical and hospital policies of insurance to senior citizens.

Martens wanted to videotape the sales presentations of some in-

surance agents, allegedly for preservation of evidence to be used

in any subsequent proceedings. Martens solicited the aid of

ABC and CBS. Charles Thompson, one of the producers of

ABC’s 20/20 program, eventually agreed to help. Martens also

solicited the assistance of a Des Moines television station,

WHO-TV, and of lowa Insurance Commissioner Bruce

Foudree who at that time was working on a similar undercover

insurance investigation.

Martens and his staff recruited senior citizens to act as

‘**decoys’’ and to request information from insurance agencies.

Martens chose the agencies to be contacted? and sent letters out

in the names of his recruits. One of these letters was sent to

Michael Crawford, a general agent who at that time employed

Garo Lauderback.’

? Martens chose to contact agents who had had complaints made

aoout them to the Iowa Insurance Department.

> On Sept. 30, 1980, the Iowa Insurance Department filed a charge

against Crawford on the basis of a complaint about life insurance sold

to an elderly woman. According to Crawford’s deposition, the charge

was later dropped.

a

—_* pe

Crawford sent Lauderback to discuss insurance with Carl and

Dagney Matheson, two of Marten’s recruits. Martens had ar-

ranged for this meeting 10 be videotaped by ABC’s crew. Dur-

ing the course of the presentation, Lauderback made several

Statements about his insurance policies, some of which were

made without knowledge of the subject matter and some of

which were admittedly false. Several weeks before the date on

which ABC was to air the videotape on its 20/20 program,

Thompson contacted Lauderback to get a statement. This was

the first time Lauderback was informed about the videotaping.

Thompson later received a phone call from Mrs. Lauderback

commenting on her husband’s actions subsequent to the

videotaping. No further calls were exchanged between Thomp-

son and the Lauderbacks.

ABC aired a portion of the videotape of Lauderback on its

May 14, 1981, broadcast of the show 20/20. On June 19, 1981,

Lauderback filed suit against ABC alleging that the May 14

broadcast of the show and the next week’s show (which also had

a repori on insurance fraud but did not mention or show

Lauderbac«) libeled him.‘

During discovery, 12 depositions were taken. On January 12,

1983, ABC filed its motion for summary judgment basing its re-

quest on two theories: (1) all the statements of fact made about

Lauderback were true and other statements were protected as

opinion, and (2) the broadcast was privileged as a report of an

official government investigation. The district court denied

ABC’s motion. The court found that gen sine issues of material

fact needed to be resolved and that the official report privilege

extended only to official actions that have been made a matter

* In his brief, Lauderback does not discuss the broadcast of May 21.

We conclude that he is not relying on representations made in that

broadcast and, thus, we confine our discussion to the May 14 broad-

cast.

—" =

of public record. Upon application, the matter was then cer-

tified for an interlocutory appeal under § 1292 (b) and this court

granted the motion.’

The relevant portion of the broadcast began with a picture of

a newspaper headline which read ‘‘Emmet Grand Jury Indicts

Two lowa Insurance Agents.’ While the headline was on the

screen, a voice-over stated: ‘The fact that most policies do not

cover extended nursing home care has received some publicity.’’

The next picture shown was that of Lauderback during which

showing the aimouncer stated: ‘‘So the agents just say, ‘Oh, it’s

the other guys who are doing the stealing.’ ’’ Following this

statement, a portion of the tape made of Lauderback at the

Matheson’s house was shown. On this tape, Lauderback states

that a director of a local nursing home had on another occasion

verified that Lauderback’s insurance policy would pay for care

at the facility. The next segment shows a brief ‘uterview with

the nursing home director during which he demes ever having

spoken to Lauderback. The final reference to Lauderback is a

statement by the announcer toward the end of the segment that

‘*Mr. Lauderback is currently under a formal investigation.”’

The broadcast at several points shows criminal proceedings

against other lowa Insurance agents. During the broadcast

epithets such as “‘rotten,”’ ‘‘unethical,’’ and ‘‘sometimes

illegal’ are used to describe the practices of agents who sell wor-

thless policies to senior citizens. The agents themselves are

referred to as ‘‘crooks’’ and “‘liars.”’

On appeal, Lauderback contends that the 20/20 broadcast,

on the whole, characterized him as a crook and a liar. Lauder-

back argues that these characterizations, although untrue, were

* Although the trial court granted certification specifically on the

issue of fair report privilege, on appeal, all issues are before this court.

The Board of Managers of the Arkansas Training School for Boys v.

George, 377 F.2d 228, 231 (8th Cir. 1967).

—_—~

presented as facts or, alternatively, that they were represented as

opinions which appeared to be based on undisclosed facts.

Because we conclude that statements made by ABC which

related to Lauderback are protected opinion, we reverse the

district court’s denial of ABC’s motion for summary judgment.

Discussion

The traditionally state-regulated area of defamation has in

the past 20 years become increasingly dominated by the federal

Constitution. With New York Times Co. v. Sullivan, 376 U.S.

254 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974), the United States Supreme Court has declared that First

Amendment safeguards are available to media defendants in

defamation actions. It is true that not all statements by the

media are insulated from attack as defamatory, see, e.g., Time,

Inc. v. Firestone, 424 U.S. 448 (1976); however, the publication

of truthful, non-private facts and of pure opinion is protected

by the First Amendment. C/. Gertz v. Robert Welch, Inc., 418

U.S. 323, 339 (1975); Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 489-90 (1974); e

A difficult question is presented when one statement may be

interpreted as either fact or opinion. While the right of free

speech provides absolute protection to statements which are

purely opinions, Gertz v. Welch at 339-40, it is conceded that

statements clothed as opinion which imply that they are based

on undisclosed, defamatory facts are not protected. This stric-

ture on publication of opinion rests on the assumption that,

given all the facts of a situation, the public can independently

evaluate the merits of even the most outrageous opinion and

discredit those that ar: unfounded. On the other hand, when an

opinion held out for belief is stated so that the average listener

would infer that the speaker had an undisclosed factual basis for

holding the opinion, the listener does not have the tools

necessary to independently evaluate the opinion and may rely

on unfounded opinion that defames an individual. Thus, the

— A-Il —

Constitution contains safeguards which protect both the right to

publish opinions and the right of a private individual to be pro-

tected from unfounded statements clothed as fact.

Lauderback first contends that ABC’s broadcast stated as a

fact that he was a criminal or had been indicted on criminal

charges. Lauderback apparently asserts that the successive

showing of the newspaper headline regarding the indictment of

two lowa insurance agents and then the picture of Lauderback

gave rise to the inference that Lauderback himself was one of

the indicted agents. However, this purportedly misleading jux-

taposition was quickly clarified when the two agents who actual-

ly were indicted were named and discussed. Also, at the end of

the broadcast, the program’s announcer stated that Lauderback

was “‘currently under a formal investigation.’’ We find that the

average viewer would conclude from this that Lauderback had

not yet been indicted or convicted of a crime.

Lauderback next argues that the ‘‘gist’’ or “‘sting’’ of the

broadcast was that he was a crook or liar. We agree that, given

the broadcast as a whole, Lauderback was portrayed as a less

than honest or scrupulous insurance agent. However, we con-

clude that this portrayal indicated ABC’s opinion of Lauder-

back’s dealings and not a bald accusation of criminal activity.°

In Lewis v. Time, Inc., 710 F.2d 549 (9th Cir. 1983), the

Ninth Circuit was presented with a similar situation. Lewis was

a practicing attorney who found himself the subject of a seg-

ment of a Time Magazine article. The article,, entitled ‘‘Those

**§!!! Lawyers,”’ stated in relevant part:

If the legal profession has been reluctant to discipline its

shadier practitioners, it has been swift to crack down on

anyone threatening to cut fees or reduce business.

* It is for the court to decide whether a statement is fact or opinion.

See Old Dominion Branch No. 496, National Association of Letter

Carriers v. Austin, 418 U.S. 264, 283-84 (1974).

— A-12 —

Under these circumstances, it is hardly surprising that

some Americans have grown cynical about lawyers — and

the law. What is more, every day’s newspaper offers up

fresh horror stories. . . . Thanks to painfully slow bar

discipline, a northern California lawyer named Jerome

Lewis is still practicing law despite a $100,000 malpractice

judgment against him in 1970 and a $60,000 judgment in-

cluding punitive damages in 1974 for defrauding clients of

money... .

Lewis v. Time at 550-51. Lewis sued Time alleging that the

readers of the article would draw negative inferences about him,

that is, they would infer that he was going to be disbarred. He

claimed, as does Lauderback in the instant case, that the

statements about him were understood alternatively as fact or as

opinion which appeared to be based on undisclosed fact.

The Ninth Circuit rejected Lewis’s argument that the article

indicated that disbarment was a foregone conclusion. However,

the court concluded that even if the article did imply this, the

implication was no more than an ‘‘outsider’s prediction of the

uncertain outcome of a future adjudication,’’ Jd. at 552, and

was protected opinion: ‘‘The inference that Lewis’s morality or

legal abilities were doubtful, or that he was unreliable and

disreputable, is a broad, unfocused, wholly subjective com-

ment, not the kind of factual expresseion for which the Con-

stitution permits liability to be imposed.’’ Jd. at 554. Time’s

full disclosure of the true facts supporting its accusation

brought the statements within the safeguards of the First

Amendment.

Lauderback seeks support from Cianci v. New Times

Publishing Company, 639 F.2d 54 (2nd Cir. 1980). In Cianci,

the defendant magazine printed an article about Cianci, who

was seeking reelection as Mayor of Providence, Rhode Island.

The article stated that Cianci had been accused of rape 12 years

— A-13 —

earlier and included an interview with the alleged victim, re-

counting her attack. The article contained the statement that

the State Crime Law expert who had conducted the lie detector

tests believed that the report on the tests showed ‘‘one of the

most clear cut cases of rape he had ever processed.”’ Jd. at 57.

The article continued with an explanation that the charge had

been dropped and shat the district attorney had decided not to

prosecute due to lack of evidence which, according to the arti-

cle, stemmed from a settlement between the alleged victim and

Cianci. The article concluded with the statement that ‘‘(f)or the

nominal sum of $3,000, Cianci had managed to buy his way out

of a possib!e felony charge.’’ /d. at 58.

The Second Circuit found that a jury ‘‘could surely conclude

that New Times was saying that Mayor Cianci, instead of being

the man of characcer he represented himself to be, was in fact a

rapist and an obstructor of justice — not simply a person who

had been accused of being such.’’ /d. at 60. The court found

that the article represented as fact the rape and Cianci’s settle-

ment with the complainant. The article also contained quotes

from others who represented as fact Cianci’s involvement in the

rape. The court further found that a reasonable reader of the

article would infer that Cianci had paid a $3,000 settlement to

the complainant before the criminal charges against him had

been dropped. The truth was that the criminal charges first

were dropped due to lack of evidence and then Cianci made an

offer of settlement to the complainant evidently to preempt a

civil suit by her.

The court of appeals rejected the argument that these

statements were protected as pure opinion. Such privilege, the

court reasoned, does not exist for ‘‘a charge which could

reasonably be understood as imputing specific criminal or other

wrongful acts.’’ Jd. at 64. The fair comment privilege also did

not apply, the court reasoned, because ‘‘charges of specific

criminal misconduct”’ are not “‘comment.’’ Also, the court

found that the facts of the article and any opinions stated

— dithn

therein were inextricably intertwined and in such a case, ‘“‘it is

meaningless to say that the opinion is protected, when the facts

are not.’’ /d. at 67.

While allegations of specific criminal conduct generally can-

not be protected as opinion, broad brush-stroked references to

unethical conduct, even using terms normally understood to im-

pute specific criminal acts, may be understood by the reasonable

viewer as opinion. See, e.g., Old Dominion Branch No. 496,

National Association of Letter Carriers v. Austin, 418 U.S. 264

(1974) (use of the term ‘“‘traitor’’ understood to imply no

specific criminal conduct); Greenbelt Cooperative Publishing

Association, Inc. v. Bresler, 398 U.S. 6 (1970) (same for the

term ‘‘blackmail’’). In the instant case, we find that the impres-

sion left by the broadcast, that Lauderback was dealing

unscrupulously with senior citizens, is more analogous to a

‘**broad, unfocused, wholly subjective comment’’ than it is to

specific accusations of feloneous conduct.’ We conclude that a

reasonable viewer of the 20/20 broadcast would have recogniz-

ed that inferences raised about Lauderback’s honesty or about

the truthfulness of his statements were opinions and not legal

conclusions. While the television medium particularly must be

aware that grouping actual criminals with innocent persons may

convey an inference of guilt for all, we do not feel media repor-

ting can be unduly restrained in showing the facts and

disclosures of an ongoing or completed investigation. We con-

clude that the broadcast as a whole may have indicated that

ABC believed Lauderback to be guilty of unethical behavior.

However, any representation of such was understandable as

opinion and not fact.

” There is no dispute that the tape was a valid representation of

Lauderback’s meeting with the Mathesons and that Lauderback did

not speak to the nursing home director. It is uncontested that pro-

secutor Martens was considering bringing charges against Lauderback

for a sale which was referred to on the video tape. Martens also stated

in his affidavit that an administrative investigation was being con-

0g at the time of the broadcast by the Insurance Commissioner’s

office.

— A-15 —

Our analysis of Lauderback’s claim of defamation does not end

by finding that the relevant statements were opinion. As we

earlier have noted, opinion which purports to be based on un-

disclosed facts is not protected speech. Lauderback argues that

ABC had knowledge before the date of the broadcast that no

criminal charges would be brought against him. He argues that

the writers had a duty to disclose this fact in order that the

negative statements regarding lauderback could be evaluated ac-

curately by the viewing public.

Although uncontradicted statements by Martens indicated

that he had decided by May 14, 1981 not to prosecute Lauder-

back for his dealings with the Mathesons, there remained a

question as to whether Martens would pursue the criminal pro-

secution of Lauderback for his dealings with another client.

Thus, ABC had grounds to believe that Lauderback might be

prosecuted for some actions relating to insurance sales to senior

citizens. We also point out that not all information favorable to

the plaintiff need be disclosed as the basis of a published opi-

nion. Cf. Brown v. Herald Co., Inc., 698 F.2d 949 (8th Cir.

1983). We think that a viewer would reasonably conclude that

had Lauderback actually been indicted by the date of the broad-

cast such information would have appeared in the program. By

its very nature, a media investigation of an industry conveys the

message that all negative facts relevant to the topic will be

revealed. In the instant case, the factual bases for the inferences

raised about Lauderback were revealed. The videotape of

Lauderback, the interview of the nursing home director, and the

statement by the Insurance Commissioner regarding the sale of

insurance to the elderly, in general, formed the bases of the opi-

nions in the broadcast. No undisclosed facts existed which were

necessary for the viewers to be able to independently evaluate

the opinions expressed.

We acknowledge that summary judgment is an extraordinary

means of disposing of an action and, thus, should be used only

when no factual disputes cloud the legal issue presented. This

— A-16 —

court has held that summary judgment may be ‘‘particularly ap-

propriate’ in an action for defamation. Truetien v. Meredith

Corp., 455 F.2d 255, 257 n.1 (8th Cir. 1972). Where the court

determines that the allegedly defamatory statements are opinion

and that the plaintiff can point to no undisclosed facts which

would substantially alter the average listener’s interpretation of

the opinion, summary judgment for the defendant is warranted.

We therefore reverse the district court’s denial of ABC’s mo-

tion for summary judgment and remand the case to the district

court for proceedings in accordance with this opinion.

Each party to pay its own costs.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

er oo

APPENDIX D

ABC NEWS

7 West 66th Street, New York, N.Y. 10023

Transcripts: Box 2020, Ansonia Station, New York, N.Y. 10023

Press contact: Veronica Pollard (212) 887-4099

20/20

May 14, 1981

AV WESTIN Vice President & Executive Producer

HUGH DOWNS Host

‘‘The Pope Who Touches the People’’

Jan Rifkinson Producer

SYLVIA CHASE Correspondent

Additional footage provided by Edward J. Piszek,

Catholic Relief Service, Food for Poland

Windover Productions/Albert C. Waller

**Twist & Stack’’

CHARLES C. THOMPSON, II Producer

GERALDO RIVERA Correspondent

Additional videotape courtesy of KETV, Omaha, Nebraska

WHO-TV, Des Moines, Iowa, KCAU-TV, Sioux City, lowa

‘*Paul Anka’’

PAMELA H. COHEN Producer

BILL REDEKER Correspondent

Additional footage courtesy of Johnny Carson Productions

ALL RIGHTS RESERVED. Copyright © 1981 by American

Broadcasting Companies, Inc. This transcript may not be

reproduced in whole or in part by mimeograph or by any other

means, without permission.

— A-18 —

TRANSCRIPT CHARGES:

One to ten copies, $2.00 each; additional copies, $1.00 each. Be

sure to indicate air date and subject or participants. Send order

with payment to Box 2020, Ansonia Station, New York, N.Y.

10023. Annual subscriptions available at $95 per year. Indicate

starting date and enclose payment. All order must be prepaid.

Make check payable to 20/20.

ABC NEWS 20/20

MAY 14, 1981

HUGH DOWNS: Good Evening, I'm Hugh Downs. And this is

20/20.

ANNOUNCER: On the ABC news magazine, 20/20, tonight.

MUSTAFA GURSEL, Turkish Journalist: The question is, is it

possible for this man to have travelled from Germany,

Switzerland, Spain, France and Italy, alone, under false

passports and false identities?

ANNOUNCER: Yesterday in Rome this man in the crowd, a

known terrorist. The Italian police had been warned. What

kind of man would be an assassin? How does a dangerous ter-

rorist move freely through Europe? Is there a network of

murder in the world? Hugh Downs asks the experts the ques-

tions that must be asked about the plan to kill the Pope.

EDWARD J. PISZEK: He’s imaginative; he’s compassionate;

he has charisma. When you add all those things together, you

have quite 2 man.

ANNOUNCER: Pope John Paui II. All of his life, this pope—

as a priest, a bishop, a cardinal—has exchanged love with the

people. All of his life, this pope has moved in the open, has

moved toward his critical encounter yesterday in Rome. Sylvia

Chase with a report on the qualities that have made John Paul II

the pope who touches the people.

ert TAN, NRE FE Ie

Se ee RT TTR

— A-19 —

JACK KIBBIE: A few white-collar crooks come in the front

door and in a matter of two or three years, take your entire life

savings.

ANNOUNCER: Old people. Easy victims of flim-flam men

selling insurance policies that are unnecessary and, to some,

worthless. Tonight, the salesmen reveal themselves before hid-

den cameras in an investigative report. Geraldo Rivera ex-

amines unethical insurance sales tactics by agenst who twist and

stack.

FRANK SINATRA: Paul is a very talented young man — he

really is, you know. I call him a kid. And he calls me the old-

timer.

PAUL ANKA [singing]: You and I will be as free—

ANNOUNCER: Paul Anka, a singer and a composer. He was a

pop music veteran by 19 with a dozen top hits, a world tour and

songs in five languages.

ANKA [singing]: Diana.

ANNOUNCER: Now, he’s 39, a top star in Las Vegas. He’s

written nearly 700 songs, some for Tom Jones, Barbara Strei-

sand, Frank Sinatra. Tonight, Bill Redeker with a show

business profile of Paul Anka.

HUGH DOWNS: Up front tonight, the condition of Pope John

Paul II—guarded and showing signs of improving. Now, many

serious questions have been raised by yesterday’s attempt on th

pope’s life. How could it happen? Why? Istherea plot? Well,

tonight, we will try to bring you answers to some of these ques-

tions that we have all been asking. The first: What kind of per-

son would feel driven to kill a pope—this pope? We asked a

psychiatrist, Dr. David Hubbard. He is director of the

Behavioral Research Center at the University of Texas. And he

specializes in understanding the personality of terrorists.

DR. DAVID HUBBARD, Psychiatrist: I think you have to

begin with the assumption that these are not normal people.

They have been social misfits almost from the beginning of their

— A-20 —

existence. The age at which they begin to radicalize and assume

this desperate posture is usually between about 28 and 30. I

think assassins, by and large, would be about that age. It’s

about the age that society shakes out the failures among men.

And at that point, a man must either accept his own personal

failure or lay it off as blame on some other individual. These

men, in their loneliness, tend to idealize some group—the

Fourth of July Memorial Group or the Black Communists of

Mexico, or some such thing. This doesn’t mean they belong. In-

deed, one will find these men have generally never belonged to

any political party, have never taken up funds for a political

party; they have never recruited for a political party and they

have never belonged to any activity cell. They are loners. They

idealize this group and at a distance, they wish they could

belong to it.

DOWNS /voice over]: Now, we ask about the very man who

was seized right after the attack on the pope. Why was he in

that crowd at all? He had warned, in a letter to a newspaper

more than a year ago, that if the pope visited his country.

Turkey, he would kill him. Under heavy security, the pope did

visit Turkey, was told of the warming and didn’t take it serious-

ly, John Paul said, ‘“‘Poor man, poor boy.’’ The man is

Mehmet Ali Agca and he is a known terrorist, a murderer. He

kilied a respected editor in Turkey in 1979. He escaped from

prison and has been at large since. We asked a Turkish jour-

nalist, Mustafa Gursel, about him.

MUSTAFA GURSEL, Turkish Journalist: I would say he is a

lost soul, a coldblooded murderer. He is the most wanted, the

most notorious terrorist in Turkey. The organization that he

belongs to is an underground organization of the extreme right-

wing Nationalist Action Party, which is now on trial in Turkey.

About 450 members of this party is being tried and the death

penalty is being asked for 220 members of this party.

DOWNS: Now, what would his motivation have been in 1979

for threatening to kill the pope?

= S|

GURSEL: Before the papal visit, he said in this famous letter,

that he saw the pope as an agent of imperialism and that he ac-

cused the pope of coming to Turkey at a time when Turkey was

trying to develop closer ties with the Middle Eastern countries.

And because of that, since he saw the pope as a crusader, he was

going to kill him. Now, according to information given by the

Turkish government, he definitely lived in Germany for quite

awhile. He has also been spotted—claimed to have been spotted

—in Switzerland, France, Spain, before coming to Italy a week

ago. And the Turkish government—and this has been confirm-

ed by Rome—informed the Italian government last week that he

had been spotted in Milan.

DOWNS: In the hospital yesterday, the pope asked, ‘‘How

could they do it?’ They. Was there word of a plot? Did the

Vatican or the Italian police know something? ABC news cor-

respondeni, Pierre Salinger reported from Rome earlier tonight

that Italian police are convinced that Agca is a highly-trained

terrorist. He claims friendship with George Habash, a Palesti-

nian terrorist leader. But he won’t tell police how he got the

fake passport with which he entered Italy or where he got the

powerful nine-millimeter pistol taken from him after the attack

on the pope. How did he get all this help? De terrorists work

together extensively? Do they cooperate from one country to

another? We asked Robert Kupperman, who is director of the

Georgetown University Center for Strategic Studies.

ROBERT KUPPERMAN: Many of us have known for years

that there has been a very, very tight organization among ter-

rorists, some sponsored by patron states, others loosely sup-

ported, including potential Soviet cooperation. They know

each other’s telephone numbers. Not all telephones are

monitored. There’s often a cell structure so that if the

authorities capture one element of it that the whole organization

doesn’t collapse. Couriers—special couriers—are used.

DOWNS: How—can you give an example of a network of ter-

rorists organizations that you know to exist, now?

- A-22 —

KUPPERMAN: Sure. The—for example, there are very close

ties between Palestinian organizations, such as the Popular

Front for the Liberation of Palestine, and, say the Red Army

Faction, which is the successor to the Baader-Meinhof gang.

Look at some of the operations that have occurred in the past —

at Entebbe, the OPEC raid, you had both Germans and Palesti-

nians. In the case of the Lode Airport massacre, you had there

Japanese terrorists. They clearly were trained by Palestinian

terrorists. There is discussion and there’s no proof—there is no

smoking gun, if you will—of potentially having had not only

Palestinian instructors but also Soviet instructors.

DOWNS: The kind of police action that might have anticipated

the appearance of a man who had threatened the pope in 1979,

was known to be in Italy—where did the police fail in an-

ticipating his arrival on the scene at some point to finish what he

had threatened to do?

KUPPERMAN: You know, a lot of countries just don’t want to

know there are terrorists coming in and out. They don’t want to

know the problem of it. They don’t want to bring the plague of

terrorism upon them. It has almost the psychiatric problem of

denial. If you don’t know about it, you don’t hear about it, you

see nothing—it will go away.

DOWNS: It doesn’t exist.

KUPPERMAN: That's correct.

DOWNS: A bizarre but perfectly plausible explanation from an

expert about why Interpol failed to act.

DOWNS [voice-over]: And now the target—the man, the pope,

whose open style, whose impulse to reach out to people keeps

him in danger. Just last week, one of his aides said, ‘‘if so-

meone wants to get to this pope, he can do it."’ We asked Dr.

Hubbard why the pope would be a typical target.

DR. HUBBARD: Well, a typical target is somebody who is the

ultimate daddy. And if you take the familiar term used in rela-

_—.

tionship with the pope, he is the papa. And all the words that

flow from the word patriarch—patria—these things are all in-

volved. But that only makes him the top of the heap. The men

who seem to call an assassin towards themselves are the men

who have the common touch. And | suppose this particular

pope has touched more other hands in the last two years than

probably any other human being on earth. He has been seen in

person by probably more millions of people than any other man

on earth. He has been among the people, in his busy travels. He

has walked on many old trails, many of which, of course, are

too regional to be noted. But it is out of these regional conflicts

that frequently can arise this sort of individual.

DOWNS: Now for a look at the open nature of the pope. Here

is Sylvia Chase. Sylvia?

SYLVIA CHASE: Hugh, it is as if everything about Pope John

Paul Il worked together to move him toward that critical en-

counter yesterday. His openness, his powerful urge to reach out

to the whole world, his insistent mobility—all of the qualities he

brought with him to the papacy.

CHASE /voice-over]: October, 1978. Joy rings out in Com-

munist Poland. There is a new pope, a Pole—Karol Wojtyla.

John Paul il. Right from the start of his papacy, John Paul

reached out to the people as he always had. And never more

dramatically than when he returned to his native Poland. Why?

Because he has always believed that the church would wither

and die if it is led by people who behave like they are special. So

his style has always been a personal one, an intimate one. He is

drawn to people and people are drawn to him. In his native

Carpathia, they walked all night to be with him. They

remembered their cardinal, a man they could touch, a leader

who made them brave and kept their church open against the

closed Communist rule of their Poland. It was more than

politics with him, though. He appears to be—quite simply—a

trusting and open man. A childhood neighbor remembers how

it was with him growing up.

—

MRS. SZCZEPANSKA, neighbor [through translator]: As a

little boy, he used to run around the yard together with his

friends, always laughing and merry. And this photograph of

the Cardinal Wojtyla reminds me of a little Lolusa, only some

40 years younger. The same smiling and merry eyes, the same

smile—natural, hearty, kind, brotherly.

CHASE [voice-over]: After the death of his mother and his

brother, Karol was raised by his father. He was a retired Army

officer. Even then, a schoolmate remembers that there was

always something special about him.

ZBIGNIEW SILKOWSKI, Schoolmate: He was head and

shoulders above the rest of our class. And every one of us can

confirm that his level, his methods of study, his way of think-

ing, his areas of interest, were a whole world deeper than that of

any of us.

CHASE: [voice-over]: At the University in Cracow, the future

pope discovered the stage. It became a way for him to reach out

to the public. He was considered a fine actor. A play he wrote

then is now being produced as a film and television special. But

the creative years were cut short by the German invasion of

Poland in 1939. The future pope, like many students and

scholars, went to work as a laborer in a quarry and chemical

plant to avoid being sent to Germany as forced labor. He still

remembers his fellow workers and they still remember him.

PLANT WORKER /through translator]: He used to work

various shifts like I did. We often shared our bread with each

other. For those were difficult times, under the occupation.

CHASE: [voice-over]: ‘‘One doesn’t forget those facts,’’ Wo-

jtyla said. ‘‘All that boiled up in my soul and resulted in the

priestly calling.’’ During these years, Wojtyla began studying

theology. And during the last year of the war, to avoid arrest by

the Gestapo, he was forced into hiding—the first and only time

in his life he went underground. He lived in secret in the

Bishop’s Palace in Cracow. He said of those war years, ‘‘I had

has

the sense that this built us up rather than destroyed us.’’ After

the war, Karol Wojtyla emerged to find Poland under Com-

munist rule nearly as grim as it was under the Nazis. He was or-

dained a priest; and in the face of an often repressive govern-

ment he was uncompromising. A very public leader of his

church, his popularity grew with the people. After all, he had

shared the war years with his parishioners. Together, they had

all known hunger, fear. And they knew that this man had been

an ordinary laborer. When Father Wojtyla was consecrated, he

took as his motto Totus Tuus. Translated from Latin, that

means “‘completely yours’’. Father Wojtyla took the position

that because most Poles are Catholics, the Communist govern-

ment should serve the needs of the church. He drew upon that

passionate commitment when the government built a model

community from the ground up and did not build a church.

Karol Wojtyla took to celebrating open-air masses on the site of

his proposed church. And huge congregations they

were—20,000 and more assembled to be with this man who

understands that the spiritual commitment of a people can sur-

vive—even thrive—in the face of political repression.

Voice of POPE PAUL II: The church in Poland is living its own

life. That is very important. And I suppose that that is impor-

tant for the church everywhere—to living its own life.

CHASE /voice-over]: The church Wojtyla had dreamed of was

built just where he wanted it, on the site where he had defiantly

celebrated those open-air masses. At the dedication, he was

among his people—as always, more and more of them.

PISZEK: His work in Poland showed how courageous he was.

He is imaginative; he is compassionate, he has charisma. When

you add all those things together, you have quite a man.

CARDINAL, Conclave: Habemus Papam.

POPE JOHN PAUL Il: Sealudatu Jesu Christu.

CHASE /voice-over]: Pope John Paul II sees his ministry as the

world. And he has conducted his papacy as if it were one con-

— A-26 —

tinuous audience with his people, whether they come to him or

he goes to them—more than half a billion Roman Catholics.

This pope seems to want to see them all. Perhaps memories of

his impoverished youth draw him to poor countries. This man

who has been hungry and afraid himself has said, ‘‘You have a

right to be respected and not to be deprived of the little that you

have. You have the right to throw down the barriers of ex-

ploitation.’’ Perhaps the finesse he acquired on the stage in col-

lege gives him the courage to present himself to millions. Is he

recalling his years of struggle against a totalitarian government

when he says, ‘“The church will not hesitate to take up the cause

of the poor and to become the voice of those who are not listen-

ed to when they speak up—not to demand charity but to ask for

justice’’? And who can forget John Paul’s trip to the United

States. When he spoke, he was not always friendly to the in-

dustrialized West. Recalling, perhaps, his years in the quarry,

he said the gap between the church and the factory must be nar-

rowed and the fumes of incense mixed with those of industry.

Remember his exhortations in a land of plenty; help those who

are most in distre««. those who are extremely poor, those suffer-

ing from all the physical, mental and moral ills that afflict

humanity; there are many in your own midst. And there was

this, in St. Charles Cathedral in Overbrook, Pennsylvania. And

this moment of pure love in Chicago, John Paul II, the pope

who touches the people.

DOWNS: What a remarkable man. Sylvia, thank you. Next,

Geraldo Rivera with a report on unscrupulous insurance

salesmen cheating the elderly.

[commercial break]

DOWNS: Tuesday of this week, there was a major action in

Washington that could add to the anxieties of older people in

America. The White House apnounced details of its plan to

reduce Social Security payments to the retired. Any reduction,

whether in medical benefits or in income the elderly have

ot AST

available for medical bills, caused deep worry among the aged

and could make them more susceptible to the sales pitches of a

new breed of con man. Here tonight with a shocking in-

vestigative report on a kind of fraud that thrives on the fear of

the elderly is Geraldo Rivera.

GERALDO RIVERA /voice-over]: Thanks, Hugh. As most

people get older, they become more and more frightened about

the financial consequences of illness. They worry, for instance,

about how they would pay their bills if they were to become

really sick. So, many seek to insure themselves against

devastating medical expenses. But some fall victim to a white-

collar crime on the rise—insurance fraud, agents who go door-

to-door trying to sell inflated or, at times, even worthless

policies to unsuspecting and vulnerable old people.

SALESMAN: Cataracts, stroke, heart attack, new kneecaps for

arthritis, gall bladder, strokes, aneurisms in the brain,

pacemakers, any—fall and break a hip, fall and break a toe, in-

grown toenail—I can go down the list. Anything. Anything.

Anything.

RIVERA /voice-over]: Anything. Anything. Anything. As the

hidden camera show, these flim flam men, this unethical

minority of the insurance industry, will apparently say

anything, anything, anything to trick the elderly into buying un-

necessary and therefore worthless insurance policies. They will

use heavy-handed scare tactics.

SALESMAN: It’s important to you, now. And that’s because

you are at an age now where you know that the law of averages

aren’t with you like they used to be. Your susceptibility to

sickness is extremely great.

SALESMAN: If you still can’t manage to be on your own after

15 months, chances are you will never come out of that remis-

sion. Not a nice way to put it but—

RIVERA /voice-over]: They’ll tell you little lies about their own

personal experiences.

— A-28 —

SALESMAN: My wife’s grandma, she was in a nursing home in

Holstein for nine years and she had two farms—

SALESMAN: My wife’s grandma was in the nursing home in

Holstein, lowa for seven years and she had three farms—

RIVERA /voice-over]: And they will grossly exaggerate or

outright lie about the extent of the coverage they are selling.

SALESMAN: After 90 days, it covers absolutely everything,

100 per cent.

SALESMAN: We would come in and pay 100 percent of that

expense.

RIVERA: [voice-over]: lowa State Law forbids these gentlemen

from claiming that their policies cover anything and everything

100 percent. In fact, actual coverage is far less. To expose

wrongdoing by insurance agents, 20/20 and several television

stations recently videotaped various ‘‘sting’’ operations, using

hidden cameras to monitor insurance sales pitches. Last

December, for instance, station WHO in Des Moines, working

in conjunction with the lowa Insurance Commission secretly

videotaped eleven agents selling insurance to an elderly woman

who is actually an employee of the Insurance Commission.

SALESMAN: If anything I say in our policy is not exactly— ex-

actly—what I have written here, you take this, you fold it up,

you can send it to the lowa Insurance Commissioner at the

Lucas State Office Building. Tell him Carl Rossi from

Guarantee Trust was here and he told me all these things and it’s

a lie. I will lose my license immediately for fraud.

RIVERA /voice-over]: Well, Mr. Rossi has been charged with

fraud. And the state is attempting to revoke or suspend his

license to sell insurance. One of the most common rip-offs in-

volves an unethical sales technique called ‘‘twisting’’. You see,

these guys earn most of their commission during the first year a

policy is in effect. So it is in their best interest to keep you

changing your insurance, get you to shift from one policy to

— A-29 —

another as often as possible. They win by repeatedly collecting

that big first-year commission. You lose because twisting leaves

big gaps in your coverage. Station WHO’s cameras caught this

guy trying to convince this supposed victim to drop Blue Cross

and instead buy the insurance he was offering.

SALESMAN: Blue Cross and Blue Shield, now, I don’t know

how you feel towards them or anything else. I am going to tell

you my feelings on it because I am not afraid to tell people. I

call them double-cross.

RIVERA /voice-over]: Double-cross. Ten of the eleven agents

stung by WHO were later charged with alleged misconduct, bas-

ed on these secret videotapes.

RIVERA: There are 40,000 licensed insurance agents here in the

State of lowa. Half of them are registered to sell insurance to

the elderly. Now, that’s an awful lof of competition for an in-

surance agent trying to make a living and it pushes some of them

into what are called abusive marketing practices. Now, that’s a

fancy way of saying that some of them will do or say

anything—however unethical—in order to exploit their elderly

customers.

SALESMAN: What about that maternity clause? You think

you need that one?

FLORENCE CAIN: Yeah. I need that one very badly.

{laughter]

RIVERA: [voice-over]: It is unlikely that 86-year-old Florence

Cain needs insurance to pay her bills in case she were to get

pregnant. Florence isn’t even married. This obvious rip-off

may give us a few laughs. But the whole story is more likely to

make you cry. Florence is one of those grassroots Americans,

born and bred in the heart of lowa’s rich farm country. She

lives in a modest home on Main Street in a small town called Ar-

nold’s Park. As her closest relatives—her neice, Alice, and

nephew, Jack Kibbie—+told us, Florence worked all her life to

— A-30 —

build up a nest egg to sustain her during old age. But by now,

her life savings have been plundered by salesmen who dishonor

the insurance industry. In Florence’s case, the sign on her door

was posted too late.

ALICE KIBBIE: There were 23 policies in 18 months issued to

her.

RIVERA: She had taken out 23 different policies in a period of

18 months.

ALICE KIBBIE: That’s right.

RIVERA: How much money was involved?

ALICE KIBBIE: Over $20,000.

RIVERA: How did you react, Jack, when you found out how

many policies your aunt had taken out in her name and how

much money was involved?

JACK KIBBIE: I couldn’t believe it, you know. A person that

has saved her entire life to take care of herself when she got up

in years and then to have a few white-collar crooks come in the

front door and in a matter of two or three years, take your en-

tire life savings. They can get in a strange area and with their

smooth talking—so they are not going to have to meet these

people on the street every day. And they just go from door to

door until they find a victim.

RIVERA: [voice-over]: In buying these unnecessary, overlapp-

ing, and therefore effectively worthless policies, all Florence

Cain can be faulted for is believing the lies an insurance agent

named George Muller told her—lies that took her to the brink

of bankruptcy.

RIVERA: Mr. Muller, incidentally, has already surrendered his

license to sell insurance in the state of Iowa. And he is under

criminal indictment in another case. The fleecing of Florence

Cain is the gravest example of an underhanded sales tactic called

*‘stacking’’. Once an unscrupulous agent finds an easy mark,

BN Fhe See a aed Seen

a plithh: PARE eS

bse

— A-31 —

he just keeps coming back to their home—time and time again

—selling them one policy after another until—as in Florence

Cain’s case—the elderly victim has been taken for just about all

they are worth. Stacking often involves Medicare supplement

policies—insurance designed to pay part of your medical ex-

penses—the 62 percent not covered by Medicare. It’s a $5

billion-a-year business. Fifteen million elderly Americans have

at least one such policy. But according to the House Select

Committee on Aging, hundreds of millions of dollars supposed-

ly spent for those Medicare supplement policies have been paid

out, instead, to insurance crooks—con men who either over-

sell, misrepresent or just plain lie about what it is they are sell-

ing. Congressman Claude Pepper, chairman of the Committee

on Aging, demonstrates a typical sales pitch.

Rep. CLAUDE PEPPER: He comes back next week. He says,

**You know, Miss Smith, I’ve got just the thing for you. What

would happen if you had a serious illness and Medicare didn’t

pay but 38 percent of your bill? What would you do?’’ She’d

say, ‘‘I don’t know what I would do. I’ve got a little money but

it wouldn’t last very long with these high doctors’ bilis and

everything.’’ ‘‘Well,’’ he said, ‘‘I’ve got the answer for you,

I’ve got a policy here by a big insurance company, and that

policy will protect you. You just pay me a relatively small

premium and you'll be protected against all these things.’’ And

then, a little while later, he comes back again. ‘‘Miss Smith,

I’ve got something better than I had last week when I was out

here for it.’’ He sells your mother. We had an instance of an

elderly lady in Illinois that had, I believe, 56—76 insurance

policies. They finally—the premiums totalled up to where she

had to mortgage her farm. The payments were supposed to be

$15,000 a year in expense.

RIVERA: Embarrassment is one of the biggest obstacles

preventing effective regulation or criminal prosecution of the

renegade agents who sell unnecessary—or, at times, even wor-

thless—insurance to the elderly. Old folks are just like the rest

sm ed =

of us. They don’t like to admit when they have been taken. But

when they do come forward—as this grand jury meeting here in

Emmet County, lowa shows—effective action is possible

against the dregs of the insurance industry.

PRESIDING JUDGE, Emmet County courtroom: The indict-

ment also states that the defendant did unlawfully obtain the

property of Alma Junkermeyer by deception—

RIVERA /voice-over]: Harley Small, the insurance agent in-

dicted by the grand jury, and several others allegedly operating

illegally, were videotaped in action by 20/20, during our under-

cover operation, which began last winter in lowa. We got in-

volved after a call from a smalltown prosecutor, 36-year-old

John Martins, the part-time Emmet County attorney. While

speaking with elderly residents of his county, Martins found

complaints of insurance rip-offs widespread. But he knew it

would be tough to get successful criminal prosecutions. In

court, it would be the old person’s word against the insurance

agent’s . And, as you have seen, most of the agents are smooth

talkers — while the elderly, on the other hand, often have more

fragile memories and can be more easily confused on the witness

stand by clever cross-examination. At Martins’ request and

with the cooperation of both lowa’s insurance commissin and

its Department of Criminal Investigation, 20/20 set up its

cameras in the homes of retirees Carl and Dagna Mathison, and

Ed and Hanna Meehan — four area residents, all in their 70s,

who agreed to serve as bait in the state’s trap. Insurance agents

were then invited to homes under state anc 20/20 surveillance.

Our cameras recorded them as they unethically sought to sell

policies by scaring people.

SALESMAN: Pardon my French, if the person was a type of —

a vegetable type, you know, like, you say, bedfast, and they

weren’t conscious of themselves or things like this, you see.

RIVERA /voice-over]: One problem with policies being sold as

so-called ‘‘nursing home insurance’”’ is simply that most are not

what they claim to be.

— A-33 —

SALESMAN: They call it ‘‘custodial care’’ It’s neighborhood

nursing home type thing It’s custodial, where people get their

meals and their doctors don’t call on them or anything. It’s just

kind of a—

RIVERA /voice-over]: As far as we can determine, there are

very, very few legitimate policies currently available that cover

room and board in a nursing home. What these fellows are sell-

ing in reality are recuperative policies—good only after

hospitalization and then for just limited periods of time. The

fact that most policies do not cover extended nursing home care

has received some publicity. So the agents just say, ‘‘Oh, it’s

the other guys who are doing the stealing.”’

SALESMAN: This woman over here on First Avenue South,

she had one from Bankers Life and it was the same way. The

only way it would pay was in a skilled nursing facility. And I

told her that. And she said, ‘‘Well, the agent said it would pay

here. The agent said it would pay here ‘‘Bullrip, it would pay

here. We took it out there and the administrator of the nursing

home said, ‘‘No, it will not pay here.’’ I showed him this one

and he said ‘‘Yes, it will.’” That made my sale for me. I didn’t

have to do any talking. He sold it for me.

RIVERA /voice-over]: Prosecutor John Martins went to Knut

Mehl, director of the nursing home in question and asked about

his alleged endorsement.

KNUT MEHL: No, that has never happened. if anybody

makes statements like that, they are lying. Because I have a

policy, myself, that I do not endorse any nursing home in-

surance policies. We have had too many policies that do not

pay off. So I don’t believe in them.

RIVERA /voice-over]; Thirty-two-year-old Larry Gollhofer is

the insurance agent who couldn’t remember whether his wife’s

grandma had two farms or three, or whether she was in the nur-

sing home seven years or nine. Actually, we taped him spinning

sO many tall tales, we half expected his nose to grow. For in-

—<

stance, he told our undercover family that they had better buy

more of his insurance because Medicare was about to be

abolished.

LARRY GOLLHOFER, Salesman: Nothing gets in his way.

He’s got a bill that has already passed the House of Represen-

tatives. It’s just got to go through the Senate. If it goes through

teh Senate, there will— Medicare will be done away with. But

the government will pay $100 a month towards your premium to

take on a policy that will pay everything. They are just going to

let the insurance companies handle that, as in the government.

RIVERA /voice-over]: We checked with the relevant congres-

sional committees and with the administration and, of course,

could find no serious proposals to repeal Medicare. On the 23rd

of February, Mr. Golhoffer was arraigned on five felony

charges involving conspiracy, theft and fraud. A sixth count

alleging forgery was added later. Golhoffer, accompanied by

his attorney, refused our request for an interview.

RIVERA: You have anything to say about it?

RIVERA /voice over]: On April 22nd, the second day of his

trial, Mr. Golhoffer’s attorney asked Judge Hamilton and Pro-

secutor John Martins to accept his plea of guilty.

Judge HAMILTON: There is a plea bargain between the defen-

dant and the state in this matter—

RIVERA /voice-over]: Golhoffer pled guilty to one count of

theft in the third degree in return for an agreement dropping the

other charges. In all, two of the four agents videotaped by us

were judged to have committed acts serious enough to lead to

criminal indictments. Mr. Lauderbach is currently under a for-

mal investigation. This kind of unethical — sometimes illegal

— conduct is certainly not condoned by the mainstream of the

insurance industry.

JIM MOOREFIELD, President, Health Insurance Association

of America: But if there is any evidence — any evidence — of

wrongdoing, then the company should be advised and the com-

— A393 —

pany should take action as they are doing and has been done,

particularly in the last few years when these Medicare supple-

ment policies, as some of the abuses that you are showing, have

come to the forefront.

RIVERA /voice-over]: But Iowa’s Insurance Commissioner

Bruce Foudree thinks that just as there are some bad agents,

there are also a few bad companies that tolerate and, at times,

even encourage dishonesty.

BRUCE FOUDREE, Iowa Insurarce Commissioner: The

abusive marketing practices have been either condoned or en-

couraged by companies and that is something that concerns us a

lot. And we are just as disturbed about that as we are with

agent misconduct.

RIVERA: You are saying that companies actually encourage

this kind of misrepresentation?

FOUDREE: We have seen evidence to that effect. yes.

RIVERA /voice-over]: During hearings held in 1978, the Select

Committee on Aging charged several insurance companies

specializing in senior citizen sales with offering policies of ques-

tionable economic value. The committee went on to say that

Pioneer Life of Illinois, Certified Life of California, and Inter-

continental Life of Newark, New Jersey, ‘‘... specifically teach

their salesmen how to lie and cheat in order to sell as much in-

surance as possible to senior citizens.’’ The companies deny any

wrongdoing. Union Casualty, the company whose agents were

involved in most of the cases documented by 20/20, refused

repeatedly to be interviewed by us, saying only that the agents’

were out on their own and that the company should not be held

reponsible for their agents’ alleged misconduct. The company

said disciplining agents is the state’s responsibility. This seems

typical of a pattern uncovered by teh congressional hearing.

Companies usually seek criminal prosecutions against their

age’ *s when they are caught stealing from the company, not

when they are caught stealing from old people like Florerice

Cain.

— A-3%6 —

RIVERA: Did you ever realize that you were spending so much

of your money on all those insurance policies?

CAIN: No. I didn’t at the time, no.

RIV ERA: How do you feel about it, now, when you look back

on it?

CAIN: Oh, I thought I made a fool of myself.

RIVERA: There is a guide available in either English or Spanish

that will help you avoid some of the rotten practices we have un-

covered tonight. It is a joint publication of the federal govern-

ment and the National Association of Insurance Commis-

sioners. It’s free. And if you want one, just write to Medigap.

their address is 632-J, Pueblo, Colorado. The zip there, 81009.

Insurance fraud is a nationwide problem. Next week, we will in-

troduce you to a group called the Missouri Renegades. You

ain’t seen nothin’ yet, Hugh?

DOWNS: We look forward to that. Thank you, Geraldo.

DOWNS voice-over]: Paul A.-%a. He was a teenage pop music

idol in the ‘50s. Now, he’s a top star in Las Vegas and he has

written nearly 700 songs. Next Bill Redeker with a profile of

Paul Anka.

[commercial break]

DOWNS: For a moment, a short lesson in the recent history of

pop music. [voice-over] It’s a story of trends, each pushing aside

the preceding one. There was the Elvis sound, pushed aside by

the British sound, the Beatles, which was later drowned out by

acid rock — Jimmy Hendricks, Janis Joplin and the sound of

protest. Yet through it all, there has been a singer-composer

who has survived — even flourished — by writing for the trend-

setters and maintaining his whole middle-of-the-road commer-

cial sound. Here to tell us about Paul Anka is Bill Redeker.

Bill?

BILL REDEKER: Thank you, Hugh. You know, the fact is

that the big draws, the big sellers of recorded music are those

— AST —

who never stray far from the broadest popular taste. That's the

path Paul Anka has followed from the beginning, since he was

teenager, and still today.

REDEKER /voice-over]: Paul Anka. Singer and composer. A

pop star of the ‘50s Twenty-five years later, he is still singing the

same songs that originally put him in the Top Ten.

PAUL ANKA voice-over]: It's more enjoyable for me singing

them now than when I was younger.

REDEKER /voice-over]/: Born in Ottawa, Canada in 1941,

Anka was determined to be an entertainer. But his restaurant-

owner father neither recognized nor encouraged his son’s talent.

ANDREW ANKA, father: I don’t think, reminiscing back, that

I detected anything that is talent— what you'd call talent, in

Paul. And much to my protest — I wanted to make a journalist

out of him or a lawyer. And I just couldn't get him to think in

that direction.

REDEKER /voice-over]: While his father wanted him to finish

school, his mother supported his ambition.

ANKA: I mean, there were times I would take my mother’s car,

at age 14, and in the dead of winter I would drive over to

Quebe> without a driver’s license and enter amateur contests,

just so | could get the experience and feel that environment of

applause and that acceptance. And I would come home at 11 or

12 at night and he was still at work and never knew I had left.

REDEKER /voice-over]: Anka wrote his own songs. One was

about a crush he had op a girl named Diana when he was only

15.

ANDREW ANKA: We used to have a young lady by the name

of Diana who frequently would come up to babysit. And Paul

being younger fell in love with her. And he composed a song,

**Diana’’. She’s older and, if you know the lyrics of *‘Diana’’,

**You’re so old and I’m so young. . .”” And he sort of treasured

the—

— A-38 —

REDEKER /voice-over]: With the song, “‘Diana’’, and a hun-

dred dollars borrowed from his father, he left Canada, headed

to New York and won a recording contract. ‘‘Diana’’ has sold

more than 10 million copies.

REDEKER /voice-over]: One year later, at age 16, Anka toured

the country singing in more than 90 cities. Irvin Feld was his

first manager.

IRVIN FELD: More than anything else. Paul wanted to be suc-

cessful. He had a lot of charisma. | always told Paul, I said,

**Paul, you have to be considerate of other people. Never

forget your fans. Stay around. Sign autographs. If they want

you for an hour, stay for the hour or whatever it is. But never

forget your fans.”’

REDEKER /voice-over]: By the time he was 19, in 1960, Anka

was a veteran of the pop music world, having produced more

than a dozen Top-40 hits in only three years. As he travelled

around the world, he wrote and recorded songs in five

languages. In the mid-60s. Anka was a host of the television

show. ‘‘Hullaballoo’’, but the British rock invasion was

threatening a lot of young singers’ careers. Yet Anka’s talent as

an entertainer enabled him to turn to nightclubs. In 1960, Anka

began his nightclub career here at teh Sahara Hotel in Las

Vegas. The 18-year-old was paid $5,000 for a one-week engage-

ment. Twenty-one years and several las Vegas clubs later, Anka

continues to perform in the top showrooms. But today, the

39-year-old entertainer earns 50 times more — or a quarter of a

million dollars per week.

REDEKER /voice-over]: Anka spends ten weeks a year in Las

Vegas and another ten to twenty weeks on the road, travelling

from city to city in his Lear jet. Between trips, he returns home,

arriving here in Monerey, California. His wife, Anne, is a

former fashion model who he married 18 years ago. They live in

nearby Carmel with their five daughters. His home is also

where he composes, in this elaborate recording studio. The pro-

cedure is relatively straightforward.

— A-39 —

REDEKER: How long does it take to write a piece?

ANKA: To do a very quick commercial song can take an even-

ing. If you are writing alone, maybe sooner than that. It’s

always getting the melody structure down first, for me, and then

working on your lyric.

REDEKER /voice-over]: Sometimes the title he picks gives him

ideas for a melody.

REDEKER: How do today’s melodies compare, and the

rhythm and the lyrics, with yesterday’s?

ANKA: Back in the ‘50s, we established, like, new rhythms. We

had pretty well established what had to be laid down for ballads.

For instance, you would always hear this [playing piano] and it

was really hip, you know. You could wiite anything around it.

[singing] ‘‘Put your head on my shoulder . . .’’ | mean, every

record, I mean, people were walking around the streets with

their hands going like this after a session. They’d say, ‘‘Next,”’

and the other guy would walk in and it would be [playing piano]

— and that drove you nuts for over three years.

REDEKER: What about your new material — the material

that’s in the latest album — how did you put that together?

ANKA: I concentrated on one ballad that I felt was very

melodic and very contemporary and lyric. [playing piano and

singing] Here I go again/Trippin’ on my own feet] . . . and

established my next rhyme for the following line: Lately, it

seems I’ve been—

REDEKER /voice-over]: Anka’s new lyrics are sophisticated:

the device of natural rhyme schemes is not as easy as it sounds.

ANKA: So I rhyme “‘talk,”’ ‘‘walk’’, I’ll do like a one-two-three

rhyme pattern. / stumble when I try to walk/It’s like I’m ina

state of shock/When I’m with you — and then going for what is

a hook, here. The real—the song builds to this point, where she

can really say it, into: Think I’m in love again/When—.

— > ea

REDEKER /voice-over]: Anka feels the lyrics of his songs say

something to everyone.

ANKA: Look what a fool Ive been/Guess I’m in love again...

REDEKER: And, again, all the rhyming right?

ANKA: And then you get the same— to get the title home and

to repeat the important line — ‘‘Think I’m in love again’’ is

always the key line.

REDEKER /voice-over]: It’s a formula he’s been using for 25

years, and it works. In all, Anka has written nearly 700 songs,

many of them recorded by other singers, including Annette

Funicello, Tom Jones, Barbra Streisand. He also wrote the

opening of the ‘‘Tonight’’ show in 1962, which brings in

$30,000 dollars a year. But without a doubt, his most

memorable song is ‘‘My Way’’ Anka wrote the lyrics to a

French melody he bought and thought it would be ideal for

Frank Sinatra. Anka first heard Sinatra’s recording over the

telephone.

REDEKER: How did it sound?

ANKA: If it were coming through a tin can, it sounded like

Mozart.

FRANK SINATRA: Well, actually, it was right on this stage

where we’re sitting now that he came in to watch a rehearsal.

And he said. ‘‘I gotta see you right after you’re through.’’ And

he had a music sheet under his arm. And we went back in the

dressing room and the piano player played this thing for me.

And I said. ‘‘It’s marvelous. Where’d you get this thing?’’ But

the next day, we recorded it. The following day, I went to Los

Angeles and recorded it. And I think that the night, 1968 —

somewhere like that — and it got the big joke because it became

the anthem — the national anthem for the act.

REDEKER /voice-over]: Every January since 1972, Anka has

conducted a telethon for cerebral palsey and has helped raise

$19.5 million.

—

DINA MERRILL: She’s having a baby and she wants you to

sing. ‘‘Having My Baby’’.

Anka: Okay, [singing] ‘‘ You’re havin’ my baby/What a lovely

way of sayin’ how much you love me/Havin’ my baby/What a

lovely way of sayin’ how—

REDEKER /voice-over]: Most of his songs, including ‘‘ Having

My Baby’’ are ballads. They are commercial and designed to

appeal to a broad-based audience.

REDEKER: How do you describe what you do musically — the

types of songs you write and sing?

ANKA: They are people songs — pop songs. There’s—

REDEKER: One critic told us that they are story songs.

ANKA: Yeah. I would say that most songs— some songs tell a

story.

ANKA [singing]: I’ve been waitin’ for you all of my life/So

many times I feel you holdin’ me tight/And now that you’re

here, it’s all right/I waited for you all my life ...

REDEKER: How do you rank Paul as an entertainer?

JOE DELANY: Taking everything into consideration, he ranks

in the top five.

ANKA [singing]: So many times I’ve dreamed of holdin’ you

tight/And now that you’re here, it’s all right.

ANKA: When you’re on that stage, it’s an experience that I

wish everyone could experience once because it is a form of

love, a form of feeling that is really unparalleled.

DOWNS: Style.

REDEKER: Absolutely.

DOWNS: Thank you, Bill. We'll be right back.

[commercial break]

an AM

DOWNS: Well, that’s 20/20 for tonight. We’re in touch, so

you be in touch. I’m Hugh Downs. Good night.

ABC NEWS—20/20

Box 2020

Ansonia Station

New York, N.Y. 10023

Transcript: May 14, 1981