Reply Brief — Gronowicz v. United States

a Te, ane Court, U.S.

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au OSEPH F. SPANIOL, UA

No. 85-515 | soseri oP

IN THE

Supreme Court of the United States

Octoser TERM, 1985

IN RE

GRAND JURY MATTER

ANTONI GRONOWICZ,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondeni.

PETITIONER’S REPLY BRIEF

RAMSEY CLARK

Counsel of Record

LAWRENCE W. SCHILLING

WELDON BREWER

113 University Place

New York, New York 10003

(212) 475-3232

Attorneys for Petitioner

January 6, 1986

TABLE OF CONTENTS

Table of Authorities

Point T

This case is not moot because

God's Broker remains suppressed

by a judicially approved, uncon-

stitutional government investiga-

tion which continues to chill

authors and publishers from wide

open, robust and uninhibited

speech.

Point IT

TF this Court concludes that

the case is moot, it should grant

the petition for certiorari,

vacate the decision below and

remand the case for dismissal.

Conclusion

ii

14

|

TABLE OF AUTHORITIES

Page

Commodity Futures Trading ;

Commission v. Board of Trade

of Chicago, 701 F. 2d 653, 657

(7th Cir. 1983) 11

Dove v. United States, 423 U.S.

325 (1976) 9,10

Duke Power Co. v. Greenwood

County, 299 U.S. 259, 267 (1936) 8

Fletcher v. Bryan, 361 U.S. 126

(1959) 9

Iron Arrow Honor Society v.

Heckler, 464 U.S. 67, 73 (1983) 9

Mintzes v. Ruchanon, U.S.

7105 S. Ct. 2006 (1985) 9,10

Murphy v. Aunt, 455 U.S. 478,

483 (1982), 6

Securities and Fxchange Commission

v. Roard of Trade of Chicago,

459 U.S. 1026 (1982) a

Tulare Lake Canal Co. v. U.S.,

459 U.S. 1095 (1983) 9

United States v. Munsingwear,

34N U.S. 36, 39 (1940) 8-11,

13

Sup, Ct, Rs Zeke 12

Sup. Ct. Ra d7ck te) 12

Point TI

This case is not moot because God's

Rroker remains suppressed by a judicially

approved, unconstitutional qovernment

investigation which continues to chill

authors and publishers from wide open,

robust and uninhibited speech.

The government's unconstitutional

investigation of the truth or falsity of.

God's Broker has undermined the book's

credibility, removed it from bookstores,

and severely diminished its economic value.

Instead of permitting the contents of God's

Broker to be fairly tested in the market-

place of ideas, the government intervened

with an unprecedented criminal investiga-

tion into the book's truth. The Court of

Appeals erroneously condoned this intimi-

dating, inhibiting and stigmatizing

governmental interference with free speech.

The book remains withdrawn and publishers

are now fearful of republishing it because

of this unconstitutional investigation

erroneous. y supported by the courts.

‘Petitioner's counsel requests that

Mr. Gronowicz' widow and primary heir,

Sophie Gronowicz, be substituted as legal

representative for the deceased so that the

right to publish God's Broker without

governmental interference may be vindi-

cated. All the materials subpoenaed by the

grand jury possessed by her husband are now

possessed by Sophie Gronowicz, and she now

stands in his position with the same

commitments. Jt is her highest purpose and

resolve to have the book republished and

widely circulated. Whatever the government

mav claim, Mr. Gronowicz' death does not

remove the need to resolve the fundamental

controversy of this case -- whether

God's Broker may be marketed and

distributed free from the threat and burden

of a judicially approved government

investigation into its truth. The

contemplated discontinuance of the

investigation does not remove the damage of

past investigation and judicial approval or

the threat and chill of possible future

investigation. Judicial approval of the

investigation irreparably damages the

economic value of the book and its

potential for publication more effectively

than would an indictment. The imprimatur

of the federal judiciary is stamped on this

condemnation of God's Broker. This Court

should reverse the judicial approval by

granting certiorari and holding any

investigation of the book, past or future,

unconstitutional.

The government has not damaged

God's Rroker or First Amendment values any

the less because of Mr. Gronowicz' death.

The book did not die when its author died.

Sophie Gronowicz intends to have God's

Rroker republished. The government's

conduct in investigating the book continues

to have achilling effect on her and

prospective publishers. The book was

damaged by adverse publicity arising from

the judicially approved criminal investiga-

tion. That judicial approval remains the

law and is the salient fact in public

opinion about God's Broker.

As long as there is no ruling that

the investigation of the book was constitu-

tionally improper, the book remains uncon-

stitutionally burdened by the executive and

the judiciary in future efforts to obtain

publishers, readers and an opportunity for

ultimate vindication in the marketplace.

Mrs. Gronowicz' husband was firmly

resolved, in spite of extremely precarious

health, to resist this unprecedented

assault on the First Amendment, to obtain

the widest possible audience for his book,

and to thwart the government's attempt to

discredit it. Total destruction of God's

Rroker by government action is well

advanced and the unconstitutional burden on

Gistribution of the book has not been

remedied by the courts. Potential

publishers and Sophie Gronowicz must remain

concerned that they will subject themselves

to a criminal investigation by republishing

the book. They must be skeptical that the

public will buy a book which has been

criminally investigated with judicial

approval. The assertion by the United

States Attorney that "no further investiga-

tion of this matter is contemplated” is not

a promise or a commitment and may only be

contingent upon self-censorship and self-

Silencing by whoever owns the book.

Under present circumstances,

Sophie Gronowicz, the primary owner of the

copyright of God's Broker, is posed with a

real dilemma created by the government's

unconstitutional conduct: whether to

withhold the book from its rightful place

in the marketplace of ideas, contrary to

the clear wishes of her husband, or to

republish the book, thereby risking a

renewal of the unconstitutional °

investigation with all the resulting

burdens, jeopardies, and expenses to family

members and the publisher. Roth choices

are weighted by knowledge that the book has

been damned by the government with judicial

approval.

The grounds for a ruling that this

case is not moot are stronger than those

held to establish non-mootness in Nebraska

Press Association v. Stuart, 427 U.S.

539, 546-547 (1976). Only likely future

repetitions of the dispute were present

in Nebraska Press. There, as noted

in Murphy v. Runt, 455 U.S. 478, 483

(1982), the controversy between the parties

was capable of repetition in large part

because the dispute between the Nebraska

Press Association and the State of Nebraska

eetaiieal

was likely to recur. Here there is a

dispute that is similarly likely to recur,

because the enduring interest of the

Authors League of America, Inc., and the

American Civil Liberties Union,

amici curiae, in the relevant issues is

Similar to that of the Nebraska Press

Association. In the instant case, however,

the dispute between the government and

those who would sponsor, publish, or sell

God's Broker not only is likely to recur,

but the inhibiting and chilling effect of

the government's conduct on potential

sponsors, publishers and sellers is a

present reality now.

Point ITI

If this Court concludes that the case is

moot, it should grant the petition for

certiorari, vacate the decision below and

remand the case for dismissal.

In United States v. Munsingwear,

340 U.S. 36, 39 (1940), this Court stated:

The established practice of this Court

in dealing with a civil case froma court

in the feceral system which has become moot

while on its way here or pending our

decision on the merits is to reverse or

vacate the judgment below and remand with a

direction to dismiss.

Yacation and remand is not discretionary;

it is "the duty of the appellate court."

Id. at 40, guoting Duke Power Co. Vv.

Greenwood County, 299 U.S. 259, 267 (1936).

Vacation and remand removes the res

judicata and stare decisis effect of the

judgment and decisions below.

The Court continues to follow this

established practice in civil cases that

become moot pending review. See, _ e.g.

Iron Arrow Honor Society v. Heckler, 464

U.S. 67, 73 (1983); Tulare Lake Canal Co.

ve. United States, 459 U.S. 1095 (1983);

S E C ° Vv

Board of Trade of Chicago, 459 U.S. 1026

(1982). The rule applies whether mootness

results from a party's death, see Fletcher

v. Rryan, 361 U.S. 126 (1959), or from

some other circumstance. See, _ e.g., Iron

Arrow, supra.

The sole exception to this practice

occurs when a party dies pending this

Court's direct or collateral review of his

federal or state criminal conviction. In

that situation the Court will dismiss the

petition or appeal which has the effect of

letting the lower court decision stand.

Dove _v. United States, 423 U.S. 325

(1976); Mintzes vy. Buchanon, U.S.

, 105 S. Ct. 2006 (1985).

This is acivil case, which if it

is moot, is controlled by Munsingwear. The

10

decision of which review is sought affirms an

order holding Gronowicz in civil contempt

for failing to comply with a subpoena duces

tecum. Gronowicz was not convicted of, or

even indicted for, a crime. Fence, the

exception for review of criminal

convictions is inapplicable.

Because the government has stated

it does not contemplate pursuing its

investigation of Gronowicz's book, it can

point to no collateral consequences that

justify letting the Court of Appeals'

opinion stand.

The government is taking the

position in this case that the judgment

below should be vacated only if the Court

would have granted certiorari, and that the

petition should be denied because the case

is not worthy of review, citing Dove and

Mintzes without mention of Munsingwear.

See U.S. Mem. in Opp. at p. 3, n.3.

11

This argument is without merit for

two reasons. First, this case is

controlled by Munsiigwear and application

of Munsingwear has never turned on the

merits of a petition for certiorari. This

Court has never accepted this argument of

the government. See Commodity Futures

Trading Commission v. Board of Trade of

Chi , 701 FP. 2d 653, 657 (7th Cir.

1983).

Second, even if the government is

correct in proposing “certworthiness" as a

prerequisite to vacation and remand, this

case satisfies that requirement.

As both the petition itself and the

supporting briefs of amici curiae make

clear, this case presents a significant

constitutional issue. It requires the

Court to determine whether, and under what

circumstances, the First Amendment permits

a criminal inquiry into the truth or

12

falsity of a book. It raises the questions

whether a difference of constitutional

magnitude exists between civil and criminal

punishment for false speech, and whether

purportedly intentional false speech ever

merits constitutional protection. A

decision in this case would affect all

authors and journalists who write about

matters of public interest. The case thus

satisfies one of the established criteria

for certiorari. See Sup. Ct. R. 17.1(c).

Furthermore, the government's

argument that no conflict on this issue

exists among the circuits, see Sup. Ct. R.

17.1(a), is irrelevant in this situation.

Gronowicz's case is unprecedented; the

federal government has never before asked a

court to permit a criminal inquiry into the

validity of an author's work.

A strong indication of the

decision's certworthiness is the number of

opinions it generated: a majority, two

13

concurrences and three separate dissents

among the eleven judges who heard the case

in banc. This “internal” conflict ina

case of first impression demonstrates that

a substantial basis for certiorari exists

if the case is not moot.

Gronowicz's case presents a

meritorious petition for certiorari. Thus,

even if the government correctly asserts

that "“certworthiness” is a prerequisite for

application of Munsingwear, this case

satisfies that requirement. Accordingly,

this Court should grant the petition for

certiorari, vacate the decision below and

remand the case with directions to dismiss

it.

14

CONCLUSION

The petition for a writ of

certiorari to the United States Court of

Appeals for the Third Circuit should be

granted, The judgment below should be

reviewed on the merits, or if the case

is moot, should be vacated and the case

remanded to the District Court for

dismissal.

Respectfully submitted,

!

/

~~ al

Fag an ace al 7:

i AF oe = ’ peated

Ramsey Clark

Counsel of Record

Lawrence W. Schilling

Weldon Rrewer

113 University fFlace

New York, N.Y. 10003

(212) 475-3232

Attorneys for Petitioner

January 6, 1986