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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1190

## Text

=

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.

~~ en

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

— po

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

=

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.

— pe

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1712%3A1. Public record. Not legal advice.