Petition for Writ of Certiorari — Marcone v. Penthouse International, Ltd.

84-1869 -

No.

Office - Supreme Court, U

FILED

In The MAY 30 1985

Supreme Court of the United Stapp’ + o=™

>

October Term, 1984

FRANK J. MARCONE,

Petitioner,

vs.

PENTHOUSE INTERNATIONAL, LTD.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

STEPHEN M. FELDMAN

Counsel of Record

GarRY LEE

STEPHEN M. FELDMAN, P.C.

Attorneys for Petitioner

1715 Rittenhouse Square

Philadelphia, Pennsylvania 19103

(215) 546-2604

2226

& *NJ (201) 257-6850°NY (212) 840-9494°PA (215) 563-5587

ters.ine. MA (617) 542-1114*DC (202) 783-7288°USA (800) 5 APPEAL

QUESTIONS PRESENTED

1. In a libel action in which the defendant asserts the New

York Timer v. Sullivan privilege does the defendant bear the

burden of proving its allegation that the plaintiff is a public figure?

2. In a libel action in which the defendant asserts the New

York Times v. Sullivan privilege may the public figure status of

the plaintiff be established by mere hearsay newspaper reports?

3. In a libel action in which the defendant asserts the New

York Times v. Sullivan privilege must disputed facts relevant to

plaintiff’s status as a public figure be decided by the jury even

if the ultimate decision as to that status is for the Court?

4. Is a libel plaintiff’s mere indictment for a crime for which

he is not convicted sufficient to make him a limited purpose public

figure?

5. Can an attorney’s representation of a client render the

attorney a limited purpose public figure?

6. Where the issue is whether there is sufficient evidence to

warrant submission to the jury of the issue of actual malice under

New York Times v. Sullivan, and there are conflicting inferences

that can be drawn from the evidence, must the evidence be viewed

in the light most favorable to the plaintiff?

il

Contents

TABLE OF CONTENTS

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Constitutional Provisions Involved ..................4..

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Reasons for Granting the Writ:

I. The decision of the Court of Appeals involves

important questions which have not been, but should,

be settled by this Court concerning the allocation of

the burden of proving the public figure status of a

libel suit petitioner, the quality of proof admissible

to prove that status, and the right to a jury trial of

disputed issues of fact related to that status. .....

A. This Court Has Not, But Should Settle the

Important Question of Whether the Defendant

Has the Burden of Proving the Plaintiff to Be

S Pee WHS: 5.00660 nsbecceecarvisieree

Page

li

II.

iit

Contents

B. This Court Has Not, But Should, Settle the

Important Question of Whether a Libel Plaintiff’s

Status as a Public Figure Can Be Established by

Ee

C. This Court Has Not, But Should, Settle the

Important Question of Whether There Is a Right

to Jury Trial of Disputed Issues of Fact Related

to Plaintiff’s Status as a Public Figure. .....

The Court of Appeals has held plaintiff-petitioner to

be a limited purpose public figure based on an analysis

which is inconsistent with applicable decisions of this

A. The Court of Appeals, Inconsistent with

Applicable Decisions of this Court, Held that the

Indictment of the Plaintiff-Petitioner for a Crime

of Which He Was Never Convicted Amounted

tc an Involvement in a Public Controversy

Militating in Favor of His Being Held to be a

Limited Purpose Public Figure............ -

(1) The Court of Appeals Erroneously Defined

Public Controversy Inconsistently With the

Applicable Decisions of this Court. .....

(2) The Court of Appeals, Inconsistent with the

Applicable Decisions of this Court, Equated

Plaintiff-Petitioner’s Indictment on Drug

Charges with Voluntary Participation by

Him in Drug Trafficking. .............

Page

11

13

13

13

15

iv

Contents

Page

B. The Court of Appeals, Inconsistent with

Applicable Decisions of this Court, Held that the

Conduct of the Plaintiff-Petitioner as an Attorney

in Connection with His Clients Rendered Him

a Limited Purpose Public Figure............ 16

III. The Court of Appeals’ decision conflicts with decisions

in other Circuits as to the method of resolving

conflicting inferences from the evidence on the issue

fg. eer errr er se ree eee 18

CI is EERE ES Ea eo ee ae ba ees 21

TABLE OF CITATIONS

Cases Cited:

Alioto v. Cowles Communications, Inc., 519 F.2d 780 (9th

Cir.), cert. denied, 423 U.S. 930, 96 S. Ct. 280, L. Ed.

p FREE aie te Peers ee a Ae ee oe 20

Bose v. Consumers Union of U.S., ___. U.S. ___,, 104 S.

oe. ao Ve ere ere 6

Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997,

ote SS eS Brrr rrr rT ee 6, 8, 10, 13, 17

Guam Federation of Teachers, Local 1581 v. Ysreal, 492 F.2d

438 (9th Cir.), cert. denied, 419 U.S. 872, 95 S. Ct. 132,

oe es ee 20

Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61

we Me 2 te. Seer erenrrerre se 6, 8, 10, 11, 14

Contents

Page

New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710,

rr We os cn cb es Kawa Wises senses ia

Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed.

Ne er ee seeks ena s Mute nae 12

Tavoulareas v. The Washington Post Company, 83-1605 (U.S.

Court of Appeals, D.C. Cir. April 9, 1985)......... 20

Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L.

Re ne Pee re 6, 10, 11, 15

Wolston v. Reader’s Digest Ass’n., Inc., 443 U.S. 157, 99

Some, Se eee & Ci eer eee

oa a peas lat tgs a AE EE SE 6, 7, 8, 10, 14, 15, 16, 17

Statute Cited:

EE exc cae vis ady e Ci bio os CRE ER A See 2

United States Constitution Cited:

ee I so ohn 0cs aie Kh cede ON TRNN Ose eas 2

Other Authorities Cited:

Prosser and Keeton on Torts (1984) 806................ 9

Restatement, Torts 2d §580(a) (1977)...... ets Shears 8

Restatement, Torts 2d §613(2) (1917)................... 9

vi

Contents

Page

Smolla, Let the Author Beware: The Rejuvenation of the

American Law of Libel, 132 U. of Pa. L. Rev. 1 (1983)

PPTPTeT eer rr Ie Fe I ee 14

APPENDIX

(Separately Bound)

Opinion of the Third Circuit Court of Appeals (754 F.2d 1072)

PEP TEUTTE Te er A-1

Judgment of the Third Circuit Court of Appeals ........ A-38

Order of the Third Circuit Court of Appeals ........... A-40

Opinion of the U.S. District Court (533 F. Supp. 353)

(Summary Jw. s cies nissnwhn sean enetees un A-42

Order of the U.S. DOERR SIGRID =. nc cc ncn skinwecse ssw es A-74

Opinion of the U.S. District Court (577 F. Supp. 318) (Post-

trial Motions)... « <a«ssxdase~ ce eae eas A-75

Order of the U.S. EXRMBRIDE GOQR. «ci cin ee bast vache eons A-144

Opinion of the U.S. District Court (577 F. Supp. 318, 336)

(Motion for Reconsideration) ...........seesseeees A-147

Order of the U.S. EGE Sitiiies 0 a ta wo auwicast even sus A-160

No.

In The

Supreme Court of the United States

>

October Term, 1984

FRANK J. MARCONE,

Petitioner,

VS.

PENTHOUSE INTERNATIONAL, LTD.,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

The petitioner, Frank J. Marcone, respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Third Circuit entered

in this proceeding on February 6, 1985 (timely motion for rehearing

en banc denied on March 1, 1985).

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 754 F.2d

1072. The opinion of the District Court for the Eastern District

of Pennsylvania on post trial motions is reported at 577 F. Supp.

318, and the opinion of the district court on respondent’s motion

for summary judgment is reported at 533 F. Supp. 353. All these

lower court opinions appear in the Appendix hereto, which is

separately bound. (Citations to the opinions in the Appendix are

made thus: App. 1, efc.)

JURISDICTION

The judgment of the Court of Appeals for the Third Circuit

was entered on February 6, 1985, and a timely petition for

rehearing en banc was denied on March 1, 1985. This petition

for certiorari was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment I.

Congress shall make no law... abridging the

freedom of speech, or of the press... .

STATEMENT OF THE CASE

This is a diversity jurisdiction libel action under Pennsylvania

law in which the plaintiff-petitioner sought damages from the

respondent, the publisher of Penthouse magazine, because of a

November 1978 article entitled ‘“The Stoning of America,’’ in

which petitioner was listed as an example of an ‘‘attorney criminal’’

who ‘‘contributed down payments of up to $25,000 on grass

[marijuana] transactions’? and against whom charges ‘‘were

dismissed because he cooperated with further investigations.’’ In

its answer to the complaint the respondent alleged that petitioner

was a public figure and that, therefore, it was entitled to the

constitutional privilege set forth in New York Times v. Sullivan.

On a summary judgment motion, however, the District Court

for the Eastern District of Pennsylvania determined that petitioner

was a private and not a public figure and, therefore, Penthouse

was not entitled to the constitutional privilege. The trial resulted

in a jury verdict for petitioner in the amount of $30,000 in

compensatory damages and $537,500 in punitive damages.

Penthouse’s post trial motions were denied by the District Court

except that a remittitur of punitive damages to $200,000 was

ordered by the Court and accepted by petitioner.

On appeal the Court of Appeals for the Third Circuit, after

finding the article to be defamatory under Pennsylvania law, held

as a matter of law that although this is a ‘‘close case,’’ the

petitioner was a limited purpose public figure (754 F.2d at 1086-87,

App. 27) and that there was insufficient evidence in the record

of actual malice.‘ Based on these determinations the Court of

Appeals entered judgment in favor of Penthouse notwithstanding

the verdict.

The sole evidence in the record on which the Court of Appeals

could have based its finding that petitioner was a limited purpose

figure was as follows: Petitioner, an attorney from the Philadelphia

area, was indicted in Detroit for allegedly participating in drug

trafficking. The indictment was ‘‘widely reported by the

Philadelphia area media.’’ Petitioner had represented various

members of two motorcycle gangs, the Pagans and the Warlocks,

but did not engage in any activity to bring attention ‘‘to his clients

or himself.’ There were newspaper reports that petitioner had

met at some unspecified time with one of his clients and others

at the Castle, a place which was allegedly the headquarters of

the motorcycle gangs and which was allegedly linked to the drug

ring which was the subject of the Detroit indictment. There was

1. Although the case was tried on the basis of plaintiff’s being a private

figure, the issue of actual malice was presented to the jury as related to punitive

damages, resulting in a verdict for petitioner.

also a newspaper report that petitioner, at an unspecified time

and place, had taken occasional weekend trips with motorcycle

gang members.

On the other hand, the evidence in the record which would

support a finding of actual malice is as follows: The draft of the

article as submitted by the author, a free-lance writer, stated that

charges against Marcone were dismissed in favor of another

indictment. This statement was confirmed by a Senate

Subcommittee report which Penthouse had obtained to verify the

statements against Marcone. This statement, however, did not

support one of the themes of the article that attorney criminals

were not being severely punished for their participation in drug

trafficking. Penthouse altered the article and instead of the

statement made by the author, Penthouse published the statement

that, ‘‘charges against him [Marcone] were dismissed because he

cooperated with further investigations.’’ The only possible support

for this change in the article was a footnote in the Senate

Subcommittee report which ‘dicated that the sentence of some

defendants was reduced because of cooperation. The footnote

indication, however, did not appear next to Marcone’s name.’

Moreover, the footnote mentioned a reduction in the sentence

of certain defendants and Penthouse had no information that

Marcone had ever been sentenced for any crime and in fact, he

had not been convicted or sentenced. Nevertheless, the Court of

Appeals stated that it was ‘‘clear’’ that the footnote was misread

or misinterpreted by Penthouse and was the reason why Penthouse

altered the author’s draft (754 F.2d at 1090, App. at 35).

2. Contrary to the Court of Appeals’ opinion (754 F.2d at 1076, App.

at 4) the record does disclose why Marcone was not reindicted. It was because

there was insufficient evidence. 577 F. Supp. at 329, App. at 106-7).

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE COURT OF APPEALS

INVOLVES IMPORTANT QUESTIONS WHICH HAVE NOT

BEEN, BUT SHOULD, BE SETTLED BY THIS COURT

CONCERNING THE ALLOCATION OF THE BURDEN OF

PROVING THE PUBLIC FIGURE STATUS OF A LIBEL SUIT

PETITIONER, THE QUALITY OF PROOF ADMISSIBLE TO

PROVE THAT STATUS, AND THE RIGHT TO A JURY

TRIAL OF DISPUTED ISSUES OF FACT RELATED TO

THAT STATUS.

Based on the district court’s summary judgment

determination, the present case was tried on the theory that the

petitioner was a private and not a public figure.’ On appeal,

however, the Court of Appeals, relying on hearsay evidence which

had been admitted solely for an unrelatec reason, determined as

a matter of law that petitioner was a limiteu purpose public figure,

and because the Court of Appeals also found insufficient evidence

of actual malice, it entered judgment in favor of the respondent

notwithstanding the verdict. Thus, there was no trial of the issue

of whether the petitioner was a private or public figure. To the

extent that there was insufficient evidence, the Court of Appeals

3. On the defendant’s motion for summary judgment the district court

determined ‘‘that Mr. Marcone is not a public figure for the limited purposes

of this action’’ (533 F. Supp. at 360, App. at 65-66). Although the plaintiff

had filed no cross motion this determination of plaintiff’s status was treated

as final by the district court and both parties at trial, and no evidence was offered

at trial directed to plaintiff’s status. On post trial motions the issue of the

plaintiff’s status as a private figure was, likewise, treated as having been

determined by the summary judgment motion (517 F. Supp. at 322, App. at

75). The Third Circuit also treated the issue as foreclosed prior to trial. (754

F.2d at 1077, App. at 6).

determined the issue in favor of the respondent, and to the extent

that there was conflicting evidence of the facts on which the

determination of petitioner’s status was based, the Court of

Appeals decided that conflict as a matter of law in favor of the

respondent.

In none of the public figure defamation cases previously

decided by this Court has there been a dispute as to the facts

on which the alleged public figure status of the plaintiff was based.‘

Therefore, this Court has not as yet had the occasion to settle

the important procedural questions involved here as to whether

hearsay evidence is admissible to prove the public figure status

of the plaintiff, which party has the burden of proof as to that

status and whether there is a right to jury trial as to the disputed

facts on which the determination of that status is made. These

procedurai questions are of broad importance since they could

arise in any defamation case where it is contended that the plaintiff

is a public figure, and, therefore, should be settled by this Court.

A. This Court Has Not, But Should Settle the Important Question

of Whether the Defendant Has the Burden of Proving the Plaintiff

to Be a Public Figure.

Although the Court of Appeals in the instant case did not

explicitly place the burden on the petitioner of disproving his public

figure status, a review of the Court of Appeals’ analysis

4. Bose v. Consumers Union of U.S.,.. U.S. ___., 104 §. Ct. 1949,

1955, __ L. Ed. 2d ____ (1984) (petitioner did not contest public figure status);

Wolston v. Reader’s Digest Assoc., Inc., 443 U.S. 157, 166, 99 S. Ct. 2701,

2706, 61 L. Ed. 2d 950 (1979) (undisputed facts do not justify public figure

status); Hutchinson v. Proxmire, 443 U.S. 111, 139-36, 99 S. Ct. 2675, 2688,

61 L. Ed. 2d 411 (1979) (same); Time, Inc. v. Firestone, 424 U.S. 498, 453-55,

96 S. Ct. 958, 965, 47 L. Ed. 2d 154 (1976) (same); Gertz v. Robert Welch,

Inc., 415 U.S. 323, 325-26, 351-52, 94 S. Ct. 2997, 3000-01, 3013, 41 L. Ed.

2d 789 (1974) (same).

demonstrates that it, in fact, placed the burden on petitioner and

that if the court had recognized that the burden lay on the

respondent, it would have concluded that respondent had not met

its burden of proof.’ The Court of Appeals found ‘‘Marcone’s

non-representational contacts with the Pagans’’ to be crucial to

its determination that Marcone was a limited purpose public figure*®

(754 F.2d at 1086, App. at 25). These so-called non-

representational contacts included meetings at the Castle with Frey,

Heron and Mealy and occasional weekend trips with motorcycle

gang members (ibid.). Assuming for purposes of discussion that

these contacts did in fact occur, there is insufficient evidence in

the record to permit them to be used to establish the petitioner

as a public figure. With regard to the meetings at the Castle with

Frey, Heron and Mealy, there is no evidence whatsoever as to

when the meetings occurred or whether they were of a completely

private nature. Moreover, as noted by the Court of Appeals,

Marcone represented Frey (754 F.2d at 1085, App. at 23), and

there is no evidence that the meetings were not solely in furtlierance

of that representation. With regard to the weekend trips, there

is absolutely no evidence when or where these trips occurred, /.e.,

whether they occurred years before or whether they were in

completely private circumstances.’

5. Since respondent did not meet even the minimal! burden of producing

prima facie evidence that petitioner was a public figure, it is not necessary,

for present purposes, to distinguish between the burden of producing evidence

and the burden of persuasion.

6. The Court of Appeals in the present case cites no authority for its holding

that a lawyer’s non-representational contacts with his clients can convert him

into a public figure.

7. This Court in Wolston v. Reader’s Digest Ass’n., Inc., 993 U.S. 157,

163, 165, 99 S. Ct. 2101, 2705, 2706, 61 L. Ed. 2d 450 (1979), indicated that

with the passage of time a return of a public figure to private life was possible.

See also, the concurring opinion of Justice Blackman, joined by Justice Marshall,

443 U.S. at 170, 99 S. Ct. at 2108. And see the Court of Appeals opinion in

(Cont'd)

Although this Court has indicated that the burden of proof

is on the defendant to prove the public figure status of a

defamation plaintiff, this Court has not settled this important

issue. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 352, 94-S.

Ct. 2991, 3013, 41 L. Ed. 2d 789 (1974), where the plaintiff was

found not to be a public figure, this Court pointed out that

‘‘respondent offered no proof’’ and that ‘‘absent clear evidence

of general fame or notoriety’’ a person should not be deemed

a general purpose public figure. Likewise, In Hutchinson v.

Proxmire, 443 U.S. 111, 134-35, 99 S. Ct. 2615, 2688, 61 L. Ed.

2d 411 (1979), where it was held the plaintiff was not a public

figure, this Court referred to the issue as a ‘‘defense,’’ and pointed

out that the evidence does not ‘‘demonstrate’’ that the plaintiff

was a public figure. And, in Wolston v. Reader’s Digest Ass’n.,

Inc., 443 U.S. 151, 162-63, 99 S. Ct. 2101, 2701, 61 L. Ed. 2d

450 (1919), this Court, in holding the plaintiff not to be a public

figure, stated:

A libel defendant must show more than mere

newsworthiness to justify application of the

demanding burden of New York Times.

However, even in the face of the foregoing statements by

this Court, prominent commentators have treated the burden of

proof issue as an open one. Thus, in Restatement, Torts 2d §580A,

comment c, at p. 211 (1977), it is stated:

where the burden of proof lies . . . has not been

settled.

(Cont’d)

the instant case (574 F.2d at 1087 n.10, App. at 27 n.10) where the Court notes

“that theoretically the passage of time might permit a public figure to regain

private status, but such was not the case here.’’

And in Prosser & Keeton on Torts 806 (1984) it is stated:

probably the burden of proof will be on the

defendant to show such facts as necessary to

establish the favored category.

Of course, placing the burden on the defendant of proving

the public figure status of the plaintiff would be consistent with

the rule that the burden is on the defendant of proving ‘‘the

presence of circumstances necessary for the existence of a privilege

to publish the defamatory communication,’’ Restatement, Torts

2d §613(2) (1917). And then the burden wouid fall on the plaintiff

of proving abuse of the privilege, i.e., actual malice.

B. This Court Has Not, But Should, Settle the Important Question

of Whether a Libel Plaintiff’s Status as a Public Figure Can Be

Established by Mere Hearsay.

In the present case the crucial evidence relied upon by the

Court of Appeals as establishing plaintiff-petitioner’s status as

a public figure consisted solely of hearsay’ reports from news

papers concerning ‘‘non-representational contacts’’ between peti-

tioner and his clients. Thus, the Court of Appeals held:

More important for the limited public figure

determination are Marcone’s non-representational

contacts with the Pagans. As noted, Marcone

reportedly met at the Pagans’ headquarters with

Frey, Heron and Mealy. In addition, one

newspaper article reported that Marcone admitted

to going on occasional weekend trips with

motorcycle gang members.

8. The trial judge recognized the newspaper articles as hearsay, but admitted

them for the sole purpose of mitigating damages by showing petitioner’s pre-

publication reputation (N.T. 4.77: Charge of the Court 47).

10

In this regard, Marcone’s non-representaticnal

connections to the Castle and the Pagans are

sufficient to tip the balance in the calculation.

(754 F.2d at 1086, App. at 25-26). (Emphasis added.)

This Court has never ruled on the question of whether the

plaintiff’s status as a public figure may be established by hearsay

reports as in the present case. However, in the public figure cases

decided by this Court the question has always appeared to be

whether the plaintiff was actually a public figure rather than

whether he or she was merely reputed to be a public figure. See,

e.g., Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 99

S. Ct. 2701, 61 L. Ed. 2d 450 (1979); Hutchinson v. Proxmire,

443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979); Time,

Inc. v. Firestone, 424 U.S. 448, 96S. Ct. 958, 47 L. Ed. 2d 154

(1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94S. Ct. 2997,

41 L. Ed. 2d 789 (1974). Moreover, requiring non-hearsay proof

that the plaintiff was actually a public figure is consistent with

this Court’s analysis of the public figure defense as being based,

not on the defendant’s view of the plaintiff, but rather on the

plaintiff’s having voluntarily placed himself in a position where

he is in the public eye. In Gertz, supra, 418 U.S. at 351, 94S.

Ct. at 3009, this Court defined the status of public figure as

follows:

For the most part those who attain this status have

assumed roles of especial prominence in the affairs

of society. Some occupy positions of such

persuasive power and influence that they are

deemed public figures for all purposes. More

commonly, those classed as public figures have

thrust themselves to the forefront of particular

public controversies in order to influence the

1]

resolution of the issues involved. In either event,

they invite attention and comment. (Emphasis

added.)

See also, to the same effect, Hutchinson, supra, 443 U.S.

at 134, 99 S. Ct. at 2687-88. And see Time, Inc. v. Firestone,

supra, 424 U.S. at 454-55, 96 S. Ct. at 965 where this Court,

in finding the plaintiff not to be a public figure, held:

Nor did respondent freely choose to publicize issues

as to the propriety of her married life. She was

compelled to go to court by the State in order to

obtain legal release from the bonds of matrimony.

We have said that in such an instance ‘[rJesort to

the judicial process . . . is no more voluntary in

a realistic sense than that of the defendant called

upon to defend his interests in court.” (Emphasis

added).

C. This Court Has Not, But Should, Settle the Important Question

of Whether There Is a Right to Jury Trial of Disputed Issues

of Fact Related to Plaintiff’s Status as a Public Figure.

In the present case the Court of Appeals made its own

independent findings as to the facts, and then based on those

findings determined that the petitioner was a limited purpose public

figure. (957 F.2d at 1084-87, App. at 22-27). For example,

newspaper articles on which the Court of Appeals relied stated

that petitioner had meetings at the Castle. On the other hand,

petitioner expressly denied having any connection with the Castle

(N.T. 4.66). The Court of Appeals resolved this factual dispute

by finding that petitioner had, in fact, met at the Castle (757 F.2d

at 1086-87, App. at 25-27).

This Court has never ruled on the important question of

whether there is a right to jury trial as to disputed subsidiary facts

12

on which the ultimate determination of the plaintiff’s public figure

status is based, even though the ultimate determination of the

plaintiff’s status may be for the Court. This question could arise

in every defamation action where the status of the plaintiff is

an issue.

On the closely related question of whether a libel plaintiff

was a public official, this Court in Rosenbiatt v. Baer, 383 U.S.

75, 88, 86 S. Ct. 669, 677, 15 L. Ed. 2d 597 (1966), stated:

We remark only that, as is the case with

questions of privilege generally it is for the trial

judge in the first instance to determine whether

the proofs show respondent to be a ‘public

official.’'*

15. 1 Harper & James, Torts §5.29 (1956); Prosser, Torts

§110, p. 823 (3d ed. 1964); Restatement, Torts §619.

Each of the three authorities cited by this Court in Rosenblatt

set forth the same division of function between judge and jury

with regard to privilege, j.e., whether a privileged occasion exists

is determined by the court, but if the facts are in dispute, their

determination is for the jury.

13

Il.

THE COURT OF APPEALS HAS HELD PLAINTIFF-

PETITIONER TO BE A LIMITED PURPOSE PUBLIC

FIGURE BASED ON AN ANALYSIS WHICH IS

INCONSISTENT WITH APPLICABLE DECISIONS OF THIS

COURT.

A. The Court of Appeals, Inconsistent with Applicable Decisions

of this Court, Held that the Indictment of the Plaintiff-Petitioner

for a Crime of Which He Was Never Convicted Amounted to

an Involvement in a Public Controversy Militating in Favor of

His Being Held to be a Limited Purpose Public Figure.

The Court of Appeals, consistent with this Court’s decision

in Gertz v. Robert Welch, Inc., 418 U.S. 323, 352, 94S. Ct. 2997,

3013, 41 L.Ed.2d 789 (1974), correctly started its analysis of the

question of whether plaintiff-petitioner was a limited purpose

public figure by holding:

To determine whether Marcone was a limited

purpose public figure with regard to his alleged

involvement in the purchase and sale of illicit

drugs, we must consider (1) whether drug

trafficking is a ‘public controversy’ and (2) the

‘nature and extent’ of Marcone’s participation in

this controversy.

754 F.2d at 1082, App. at 18. However, the Court of Appeals

then departs drastically from the applicable decisions of this Court.

(1) The Court of Appeals Erroneously Defined Public

Controversy Inconsistently With the Applicable Decisions of this

Court.

The Court of Appeals held that —

is

Drug trafficking of such mammoth proportions,

which is one of the most troubling issues of our

time, surely falls within the ambit of public

controversy.

754 F.2d at 1083, App. at 19. This analysis of what constitutes

a public controversy is in direct conflict with this Court’s decision

in Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 166 n.8,

99 S. Ct. 2701, 2701 n.8, 61 L.Ed.2d 450 (1979), where the Court

concluded that the plaintiff, who had been listed by the defendant

as a Soviet spy, was not a public figure, holding:

Certainly, there was no public controversy or

debate in 1958 about the desirability of permitting

Soviet espionage in the United States; all

responsible United States citizens understandably

were and are opposed to it.

See also, to the same effect Hutchinson v. Proxmire, 443 U.S.

111, 135, 99 S. Ct. 2675, 2688, 61 L. Ed. 2d 411 (1979).

The Court of Appeals, however, flouted the authority of this

Court by intentionally deciding the point in direct conflict with

this Court’s decision in Wolston. This is demonstrated by footnote

8 of the Court of Appeals opinion in which the Court states:

We reject the notion that merely because most

people would agree that drug trafficking is

undesirable, there is no ‘controversy’ regarding the

matter.

754 F.2d at 1083 n.8, App. 19 n.8. This statement is then followed

by the citation of Wolston with the signal ‘‘see’’ and the citation

of a law review article’ in which the author, on the pages cited

9. Smolla, Let the Author Beware: The Rejuvenation of the American Law

of Libel, 132 U. of Pa. L. Rev. 1, 56-57 (1983).

15

by the Court of Appeals, characterizes this Court’s analysis in

Wolston as ‘‘myopic,’’ ‘‘facially spurious,’’ ‘‘ludicrous,’’

’**hypertechnical’’ and ‘‘flawed.’’

(2) The Court of Appeals, Inconsistent with the Applicable

Decisions of this Court, Equated Plaintiff-Petitioner’s Indictment

on Drug Charges with Voluntary Participation by Him in Drug

Trafficking.

After discussing plaintiff-petitioner’s indictment on drug

charges, the Court of Appeals equated petitioner’s indictment with

actual voluntary participation in criminal activity, holding:

Although the criminal activity, by itself, may not

create public figure status, such activity may,

nevertheless, be one element in a mix of factors

leading to that classification. Moreover, the crime

involved in Wolston was particularly passive —

a contempt citation for failure to appear at a grand

jury hearing because of ill health. In the present

case, however, Marcone was indicted for

participating, not in a passive manner, in a drug

conspiracy. This factor may be considered in our

analysis of Marcone’s status.

754 F.2d at 1085, App. at 24. This use by the Court of Appeals

of plaintiff-petitioner’s indictment on drug charges as evidence

that he, in fact, was involved in drug trafficking and had, thus,

thrust himself into a public controversy is inconsistent with

applicable decisions of this Court. In Time, Inc. v. Firestone,

424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), this Court

held: 3

‘[rJesort to the judicial process ... is no more

voluntary in a realistic sense than that of the

16

defendant called upon to defend his interest in

court.’

424 U.S. at 454, 96 S. Ct. at 965.

And while participants in some litigation may be

legitimate ‘public figures,’ either generally or for

the limited purpose of that litigation, the majority

will more likely resemble respondent, drawn into

a public forum largely against their will in order

to attempt to obtain the only redress available to

them or to defend themselves against actions

brought by the State or by others.

424 U.S. at 457, 96 S. Ct. at 966-67. And in Wolston v. Reader’s

Digest, Ass’n., Inc., 443 U.S. 157, 167, 99 S. Ct. 2701, 2707,

61 L. Ed. 2d 450 (1979), this Court held:

A private individual is not automatically

transformed into a public figure just by becoming

involved in or associated with a matter that attracts

public attention.

B. The Court of Appeals, Inconsistent with Applicable Decisions

of this Court, Held that the Conduct of the Plaintiff-Petitioner

as an Attorney in Connection with His Clients Rendered Him

a Limited Purpose Public Figure

After stating that ‘‘{nJothing in the record of the present case

indicates that Marcone was engaged in bringing attention to his

clients or himself in regard to their legal relationship,’’ the Court

of Appeals holds that it ‘‘may give only limited significance to

Marcone’s representational activities in the public figure analysis.’’

754 F.2d at 1086, App. at 25. In attributing any significance

whatsoever to the petitioner’s representation of his clients, no

17

matter how notorious or controversial the clients, the Court of

Appeals’ decision conflicts with this Court’s holding in Gertz v.

Robert Welch, Inc., 418 U.S. 323, 94S. Ct. 2997, 41 L. Ed. 2d

789 (1974), that an attorney’s representatio”. of a client does not

make the attorney a public figure. See also, Wolston v. Reader’s

Digest Ass’n, Inc., 443 U.S. 157, 167, 99 S. Ct. 2701, 2707, 61

L. Ed. 2d 450 (1979), where this Court described Gertz as holding

that an attorney was not a public figure even

though he associated himself with a case that was

certain to receive extensive media coverage.

And as is pointed out by Mr. Justice Blackmun in his concurring

opinion in Gertz, ‘‘the advocate is not to be invidiously identified

with his client’’ since to do so would ‘‘gravely jeopardize’’ the

right to counsel. Gertz, supra, 418 U.S. at 355, 94S. Ct. at 3014.

18

Ill.

THE COURT OF APPEALS’ DECISION CONFLICTS

WITH DECISIONS IN OTHER CIRCUITS AS TO THE

METHOD OF RESOLVING CONFLICTING INFERENCES

FROM THE EVIDENCE ON THE ISSUE OF ACTUAL

MALICE.

The Penthouse article involved in the present case was written

by Edward Rasen, a free-lance writer. The only existing drafts

of the article state:

Frank Marcone, an attorney from the Philadelphia

area, contributed down payments of up to $25,000

towards shipments. Charges were dismissed in

favor of another indictment.

However, the article as published by Penthouse stated:

Frank Marcone, an attorney from the Philadelphia

area, contributed down payments of up to $25,000

on grass transactions. Charges against him were

dismissed because he cooperated with further

investigations. '°

There was no evidence as to why the article as published

contained the statement that charges against Marcone were

dismissed because 1e¢ cooperated with further investigations.

Indeed, before the article had been published, Penthouse had in

its possession a Senate Subcommittee report indicating that an

10. In addition to indicating petitioner’s guilt of the crime, this statement

could also be found to be defamatory on the ground that it could be interpreted

as meaning that Marcone had cooperated by disclosing privileged information

he received from clients.

19

indictment was dismissed against Marcone and that he was to

be reindicted in Philadelphia.'' This report stated in a footnote

that the sentence of certain persons other than Marcone had been

reduced because of their cooperation with the authorities. The

other two sources upon which Penthouse had to rely in publishing

the defamatory statements about Marcone were the author’s notes

and an article in The Philadelphia Inquirer. The author’s notes

were not produced by respondent at trial, and the editor of the

article had no recollection as to what the notes contained

concerning Marcone. The /nquirer article referred to the indictment

against .Marcone, but did not state that Marcone had actually

committed the crime and did not say that he had cooperated with

further investigations.

At trial, Penthouse argued that the footnote in the Senate

Subcommittee report could have been misinterpreted by someone

at Penthouse to mean that Marcone cooperated with the

government. In answer to special interrogatories, however, the

jury expressly found that Penthouse published false and

defamatory statements about Marcone either with knowledge of

their falsity or with reckless disregard as to whether they were

true or false. Thus, the jury rejected Penthouse’s argument.

Nevertheless, the Court of Appeals overturned the jury’s finding,

and adopted respondent’s argument, holding that ‘‘the source of

the mistaken alteration is clear. * * * Someone at the magazine

apparently misread the footnote as also referring to...

Marcone.’’ 754 F.2d at 1090, App. at 35-36.

By accepting Penthouse’s argument, which had been rejected

by the jury, ane on that basis entering judgment notwithstanding

the verdict, the Court of Appeals, in effect, viewed the evidence

11. Petitioner was, in fact, never reindicted and no further criminal

proceedings were brought against him because of a lack of evidence. (577 F.

Supp. at 329, App. at 106-7).

20

in the light most favorable to the respondent.'? In this regard

the Court of Appeals’ decision is in direct conflict with the

decisions of the Courts of Appeals of other Circuits on the same

issue.

The Court of Appeals for the District of Columbia Circuit

in Tavoulareas v. The Washington Post Company, 83-1605 (U.S.

Court of Appeals, D.C. Cir. April 9, 1985) (Pet. for Reh. pending),

reversed the District Court’s Order entering judgment for the

defendant notwithstanding the verdict, and in so doing held:

Our review commands only that we evaluate the

inferences most favorable to the plaintiff, examine

them for their reasonableness, and determine

whether they support a finding that the plaintiffs

have clearly and convincingly demonstrated actual

malice.

Slip opinion at 79.

The Court of Appeals for the Ninth Circuit in Alioto v.

Cowles Communications, Inc., 519 F.2d 777, 780 (9th Cir.), cert.

denied, 423 U.S. 930, 96 S. Ct. 280, 46 L. Ed. 2d 259 (1975),

likewise, held that an appellate review to determine the adequacy

of the evidence of actual malice in a public official libel case must

draw all permissible inferences in the plaintiff’s favor and resolve

all questions of credibility in his behalf. See also, to the same

effect, Guam Federation of Teachers, Local 1581 v. rsrael, 492

F.2d 438 (9th Cir.), cert. denied, 419 U.S. 872, 95 S. Ct. 132,

42 L. Ed. 2d 111 (1974).

12. Petitioner, by no means, concedes that it is a fair inference from the

record that the foonote in the Senate report was, in fact, aisread as argued

by Penthouse. But for present purposes, it is sufficient to accept the proposition

that it is reasonable to view the report either way.

21

This Court should, therefore, grant certiorari to resolve this

conflict among the Circuits as to the method of resolving

conflicting inferences during an appellate review of the record

to determine the adequacy of the evidence of actual malice in

a public official or public figure libel case.

CONCLUSION

For the foregoing reasons a writ of certiorari should issue

to review the judgment and opinion of the Third Circuit.

Respectfully submitted,

STEPHEN M. FELDMAN

GARY LEE

STEPHEN M. FELDMAN, P.C.

Attorneys for Petitioner

1715 Rittenhouse Square

Philadelphia, Pennsylvania 19103

(215) 546-2604