Opposition Brief — LaRouche v. National Broadcasting Co.

ve Supreme Court, U.S.

No. 85-1914 ED

JUN 24 1986

wo JOSEPH F. SPANIOL, JR.

Supreme Court of the United|States*“

OCTOBER TERM, 1985

te

LYNDON H. LAROUCHE, JR.,

Petitioner,

—Yy,—

NATIONAL BROADCASTING COMPANY, INC., ef ai.,

Respondents.

ON PETITION FOR AWRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF RESPONDENTS NATIONAL BROAD-

CASTING COMPANY, INC., LYNCH, NYKANEN,

AND ROSS IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

FLOYD ABRAMS

80 Pine Street

New York, New York 10005

(212) 701-3000

Of Counsel: Counsel for Respondents

National Broadcasting

Company, Inc., Lynch,

Nykanen and Ross

THOMAS J. KAVALER

DEVEREUX CHATILLON

JOAN T. INFARINATO

CAHILL GORDON & REINDEL

(a partnership including

professional corporations)

PETER K. STACKHOUSE

TOLBERT, SMITH, FITZGERALD

& STACKHOUSE

2300 Ninth Street, South

Arlington, Virginia 22204

(703) 521-5252

June 21, 1986

ee

QUESTIONS PRESENTED

1. Whether this Court should review discovery rulings of the

United States District Court for the Eastern District of Virginia

rooted in plaintiff’s demonstrated failure to exhaust alternative

sources Of information and plaintiff's proven pattern of

harassment, which were affirmed by the United States Court

of Appeals for the Fourth Circuit, and which had no impact on

the result of the action?

2. Whether this Court should review an interpretation of

Virginia law by the District Court, which was affirmed by the

Court of Appeals?

3. Whether this Court should review the District Court’s

refusal to declare a mistrial, which was affirmed by the Court

of Appeals?

PARTIES BELOW

The parties to the proceedings below were Lyndon H.

LaRouche, Jr., plaintiff and counterclaim defendant, and

National Broadcasting Company, Inc., Pat Lynch, Mark

Nykanen, Brian Ross, Anti-Defamation League of B’nai

B’rith, and Irwin Suall.'

National Broadcasting Company, Inc., which was the sole counter-

claim plaintiff, advises the Court pursuant to Supreme Court Rule 28.1

that while, prior to June 9, 1986, it was a wholly owned subsidiary of

RCA Corporation, both RCA Corporation and National Broadcasting

Company, Inc. are now wholly owned by General Electric Company.

iil

TABLE OF CONTENTS

PAGE

CL. (cc ss cbse eect cecenees i

ES Oe ee eee il

en nee ae iv

eset bisa sca sec encsesnaness |

RS 2

Es ee 9

GE ee 9

I. THE COURT OF APPEALS’ AFFIRMANCE

OF THE DISTRICT COURT’S FACT-SPECIFIC

DISCOVERY AND EVIDENTIARY RULINGS

WAS CORRECT AND PRESENTS NO NOVEL

OR IMPORTANT QUESTIONS WARRANTING

Ee EPEC © RES VEIE WY oo cee ccccccccccccses 9

Il. THIS COURT SHOULD NOT REVIEW THE

DISTRICT COURT’S INTERPRETATION OF

VIRGINIA LAW, WHICH WAS AFFIRMED BY

EE ERPEEEOE GUBIAIED cose ccrocencccscoes 16

lil. ON THE FACTS OF THIS CASE THE DIS-

TRICT COURT’S REFUSAL TO DECLARE A

MISTRIAL, WHICH WAS AFFIRMED BY THE

COURT OF APPEALS, WAS WELL WITHIN

ITS DISCRETION AND IS NOT AN ISSUE

SULIABLE FOR CERTIORARI............... 16

Ta cheese here eceed ake veccescecess 19

TABLE OF AUTHORITIES

Cases PAGE

Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78

Re RE , Ceara gt AE ee nh ee a 13n

Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972)

Cart. Gented, 441 U.S. S66 C1973) oc cnccccsccceccves 13n

Beach v. Shanley, 62 N.Y.2d 241, 465 N.E.2d 304, 476

Se ae Pe ED © oso oe Conse hho ek CRE AS eed 14

Bernhardt v. Polygraphic Co. of America, Inc., 350

i ee RE Sy aa ies cn en seer aw eee eRe xs 16

Brown v. Reardon, 770 F.2d 896 (10th Cir. 1985)...... 10n

Bruno & Stillman, Inc. v. Globe Newspaper Co., 633

Pee eee ee eb kw aed We ee Ree 12n-13n

Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), cert.

, Gare Grace. FO COSTED vice idee ewseeeseuvens 10n

Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972).. 13n

Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972),

Care. Coren, Soe Us. PAZ CIT aD acc vvcvcsvccvenes 13n

Continental Cablevision, inc. v. Storer Broadcasting

Co., 583 F. Supp. 427 (E.D. Mo. 1984) ............ 13n

Democratic National Committee v. McCord, 356 F.

es Bde COPPA, BUI SE cc acncedcecakeeee enaeas > 13n

DeRoburt v. Gannett Co., 507 F. Supp. 880 (D. Hawaii

Vere oa lak ReME CUS REE Re Seed ee eee ees 15n

Dowd v. Calabrese, 577 F. Supp. 238 (D.D.C. 1983)... 15n

Downing v. Monitor Publishing Co., 120 N.H. 383, 415

Pie RS ook oo aaa eso hha ene ba eens ee 15n

Ewers’ Administrator v. National Improvement Co., 63

ee ask es OG PS sd ae hehe eua wees aes 17n

Falwell v. Penthouse International, Ltd., 52\ F. Supp.

Re SOs Os RED 6 oko 5b SEO Oe eee he eee en 10n

Goins v. McKeen, 605 F.2d 947 (6th Cir. 1979)....... 17, 17n

Greenberg v. CBS Inc., 69 A.D.2d 693, 419 N.Y.S.2d

ee Bi BP errr rier terry Teer ree 15n

Harden v. Adams, 760 F.2d 1158 (11th Cir.), cert.

Gented, TOS B.. e. Fae CPE aves nbcdscdicnvesess 10n

Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977), cert.

Galen, S55 Ue Fee ISI) vive cccdeusseusdsacess 17n

Laborers’ International Union v. United States Depart-

ment of Justice, 772 F.2d 919 (D.C. Cir. 1984) ...... 10n

Margoles v. United States, 407 F.2d 727 (7th Cir.), cert.

Gented,, 356 U.S. Gas (19) occninecvvuescecvsssses 17

Marshall v. United States, 360 U.S. 310 (1959) (per

QUT 5 6.0 6.05:06600 3 bee RESTO e eet 17

McDonough Power Equipment, Inc. v. Greenwood, 464

LE Fe. De RRO 6604005 CAREC RO AOR ee 10n

Miller vy. Transamerican Press, Inc., 621 F.2d 721 (Sth

Cir.), modified, 628 F.2d 932 (Sth Cir. 1980), cert.

Gantied.. Gop tts POO. CUA) voce cece ener ees 13n

Mize v. McGraw-Hill, Inc., 82 F.R.D. 475 (S.D. Tex.

by: PO ee ere rere eae testy CMe 13n

NAACP vy. Alabama ex rel. Patterson, 357 U.S. 449

GRR oe eb wee e se chen is cee eee eee ae 14

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

Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62

N.Y.2d 158, 464 N.E.2d 967, 476 N.Y.S.2d 269 (1984),

Cort. Gee, FS 3. CA. Sor EPs ak eo eee ee 14, 15n

Palmer v. Hoffman, 318 U.S. 109 (1943)............. 10n

Oe

vi

PAGE

Paramount Film Distributing Corp. v. Applebaum, 217

F.2d 101 (Sth Cir. 1954), cert. denied, 349 U.S. 961

RE eee Ce ere mre ia rey iy of 16n

Philadelphia Newspapers, Inc. v. Hepps, 106 S. Ct. 1558

EP eer en et re re 9n-10n

Porter v. Eckert, 465 F.2d 1307 (Sth Cir. 1972)........ 8n

Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979)... 9 13n

Roviaro v. United States, 353 U.S. 53 (1957).......... 15n

Sellers v. Time, Inc., 299 F. Supp. 582 (E.D. Pa. 1969),

aff’d, 423 F.2d 887 (3d Cir.), cert. denied, 400 U.S.

gk Sarre er hit a Ls Aye 10n

Sharon v. Time, Inc., 599 F. Supp. 538 (S.D.N.Y. 1984) 10n

Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir.

og ee rere ee rey ee rr rrr Ghee 13n

Texas & New Orleans Railroad Co., v. Underhill, 234

fh Fe fe Ba, . | reer ro on re 16n

United States v. Burke, 700 F.2d 70 (2d Cir.), cert.

Geied,, 466. U.S. SEO CIGD ook kv sci adeesceweencen 12n

United States v. Hankish, 502 F.2d 71 (4th Cir. 1974) ..17, 18

United States v. Herring, 568 F.2d 1099 (Sth Cir. 1978). = -17n

United States v. Hubbard, 493 F. Supp. 202 (D.D.C.

| £5, PPE ESTEE TCT CRT TUT Tee TCT ee er eee 13n

United States v. Jackson, 649 F.2d 967 (3d Cir.), cert.

meteied, 454 U.S. 56 (ISGT) cicciccdcasevdadavaaws 17

United States v. Jones, 542 F.2d 186 (4th Cir.), cert.

denied, 426 U.S. 922 (1976) ......... ccc cee eee ees 18

United States v. Lord, 565 F.2d 831 (2d Cir. 1977)..... 17

United States v. Mountain State Fabricating Co., 282

ae aes C40 Cir. FOG occ ect idenes cance dew nd 8n

Vil

PAGE

United States v. Pennell, 737 F.2d 521 (6th Cir. 1984),

cart. Gented, 105 3. Ct. SOG CIGGS). vcs cc cecsccccas 17n

United States v. Pretzinger, 542 F.2d 517 (9th Cir. 1976) = 13n

United States v. Watchmaker, 761 F.2d 1459 (11th Cir.

1985), cert. denied, 106 S. Ct. 879 (1986)........... 18

U.S. News & World Report, Inc. v. Campaigner Publi-

cations, Inc., 222 U.S.P.Q. 123 (D.D.C. 1982) ....:. 14n

Vance v. Universal Amusement Co., 445 U.S. 308 (1980)

Se NG as bok ea neo aks Areca oak ee ke re eh 16

Warner v. Kewanee Machinery & Conveyor Co., 411

F.2d 1060 (6th Cir. 1969), cert. denied, 398 U.S. 906

CREM CNG Sa Nah vase sandka reves eiad Laie eens 8n

Wehling v. Columbia Broadcasting System, 608 F.2d

Pe ee ee OE ccs vrai rnc betas deena sees 1Sn

Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) ......12n, 13n

Constitutional Provision

She MO IC Re ewer dr cease estate cece eens 12, 15

Ruies

Sri ME es Ws EE ose kv cae eee Cees es eeduacen 16

Pe IN EE cs ones yl inad Vk VEN etre de ce emed 6n

Statute

Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. §§ 1961, et seg. (1982 & Supp. Il 1984)...... 2,8

Treaties

SA J. Moore, Moore’s Federal Practice (2d ed. 1986) .. 8n

1 J. Weinstein & M. Berger, Weinstein’s Evidence (1985) 6n

8 C. Wright & A. Miller, Federal Practice and Procedure

FRE eS SEEM NCR ee eae ee eee Lae 15n

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1914

>

LYNDON H. LAROUCHE, JR.,

Petitioner,

—_—V—

NATIONAL BROADCASTING COMPANY, INC., ef al.,

Respondents.

ON PETITION FOR AWRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

>

BRIEF OF RESPONDENTS NATIGNAL BROAD-

CASTING COMPANY, INC., LYNCH, NYKANEN,

AND ROSS IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

On January 30, 1984, and on March 4, 1984 National

Broadcasting Company, Inc. (“NBC”) broadcast two news

stories about Mr. LaRouche, one on Nightly News and one on

a program called First Camera. Mr. LaRouche sued for libel.

On April 3, 1984, in its answer NBC asserted a counterclaim

against LaRouche based on an attempted cancellation of an

interview with United States Senator Daniel Patrick Moynihan

by an impostor claiming to be from NBC and a similar

telephone call to NBC from an impostor claiming to be an aide

to Senator Moynihan. After a nine-day trial, the jury con-

cluded that LaRouche had failed to demonstrate that the NBC

broadcasts were false. The jury rejected NBC’s claim under the

Nw

Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. §§ 1961, et seq. (1982 & Supp. II 1984), as amended,

but ruled in NBC’s favor on its claim of interference with

advantageous business relationships under the common law of

Virginia. An award of $202,000 to NBC, after remittitur, was

entered by the Court.

LaRouche moved for judgment n.o0.v. on NBC’s counter-

claim against him, which was denied. He then appealed to the

United States Court of Appeals for the Fourth Circuit. The

Court .of Appeals unanimously rejected LaRouche’s claims of

error in the District Court’s discovery rulings, evidentiary

rulings, interpretation of Virginia state law and refusal to

declare a mistrial. A petition for en banc consideration was

denied.

STATEMENT OF FACTS

The Broadcasts

In the two broadcasts about LaRouche, NBC reported his

view that the Queen of England is a dope dealer (JA 62); his

assertion that he was targeted for assassination along with

President Reagan and Pope John Paul II (JA 62); his continu-

ing efforts to intimidate reporters (JA 57, 62, 64); his violation

of rules of the Federal Election Commission (JA 65); and his

belief that NBC works with the “drug lobby” and is supported

by the KGB. (JA 68) The second NBC broadcast also included

Statements of non-NBC employees that LaRouche believes

Jews are responsible for all evils in the world (JA 65), that any

serious investigation of LaRouche by the Internal Revenue

Service would lead to criminal indictment and the closing down

of his organization (JA 65), and that he at one time proposed

the assassination of President Jimmy Carter, Zbigniew Brze-

zinski, Joseph Lund, Paul Warnecke, and David Rockefeller.

(JA 66)

Pre-Trial Proceedings

Brian Ross, an NBC correspondent, and Ira Silverman, an

NBC producer, prepared the January 30, 1984 Nightly News

broadcast complained about. (Ross Tr., V, 858, 863-64) Be-

cause LaRouche now complains about issues that are relevant

only to the later First Camera broadcast, no further discussion

of the Nightly News broadcast is included here.

On February 10, 1984, LaRouche filed his first complaint in

this action. (JA 2) In addition to NBC and Mr. Ross, the

complaint named Pat Lynch as a defendant, even though Ms.

Lynch was the producer of First Camera, a program that was

not to be broadcast until March 4, 1984. (JA 21, 29) On

February 16, 1984, LaRouche served and filed 80 requests for

admission, !7 interrogatories, and 36 document requests,

directed primarily to the as yet unaired First Camera broad-

cast. (JA 2; see JA 215-318)

On March 21, LaRouche filed an amended complaint (JA 2,

38), adding as a defendant Mark Nykanen, an NBC correspon-

dent who appeared on the March 4 First Camera broadcast,

and including a cause of action for defamation based on the

First Camera broadcast, as well as a cause of action for

conspiracy. After moving for and obtaining a protective order

from the District Court, NBC made available almost 650

documents and 170 videotapes to LaRouche for inspection and

copying. (JA 363) NBC withheld under a claim of privilege

citation to the Appendix to the Petition, “JA ___” for citation to the

joint appendix below, “LaRouche Tr., III, 1252” for citation to

testimony at trial not included in the Joint Appendix by the name of

the witness, the trial transcript volume, and page number, and “NBC

Trial Ex. 114” for citation to trial exhibits not included in the Joint

Appendix.

While the references above are to the two transcripts of the broad-

casts that were attached to the Amended Complaint, these transcripts

were never admitted into evidence. Videotapes of the actual broadcasts

have been lodged with the Court of Appeals for the Fourth Circuit

(LaRouche Trial Ex. 2; NBC Trial Ex. 114)

only two documents and four videotapes in their entirety and

one page of notes. (JA 319-27)

On July 16, 1984, LaRouche filed a motion seeking to

compel disclosure of confidential sources. (JA 7, 214) At the

time the motion was filed, LaRouche had taken only the

deposition of Brian Ross; he had not taken depositions of

anyone associated with the First Camera broadcast. (JA 364)

Despite the Local Rule of the Eastern District of Virginia

allowing five non-party depositions, LaRouche had taken no

non-party depositions. (/d.) Magistrate Sewell denied La-

Rouche’s motion,’ stating that:

“I consider specifically the matter of exhaustion of

other sources, the specificity of the need without first

performing other discovery in the case. And I also con-

sider the type and nature of the controversy based upon

the history of the case, the actions of the various parties

in connection with discovery thus far in the case, the

depositions taken, and the various other matters which

relate to the nature and type of the case that we have.

“For those reasons I’m going to deny the motion to

compel further production at this time without prejudice

to the plaintiff to renew the motion at some later time.”

(JA 396-97)

LaRouche renewed his motion to compel disclosure before

he had taken the deposition of Pat Lynch. (JA 408; see JA

410) At this time, LaRouche had taken only four non-party

depositions (JA 409-10, 422-24); he had not even taken the

fifth deposition allowed him during the discovery period.

LaRouche had noticed the deposition of four non-NBC em-

3 On the same day Magistrate Sewell also denied LaRouche’s motion

to extend the five non-party deposition limit set by the Local Rules

The Magistrate gave LaRouche two options: interviewing witnesses

first and, if necessary, noticing a de bene esse deposition prior to trial;

if, after taking five depositions, another specific deposition were

needed, LaRouche could ask for it. (JA 392-94)

5

ployees, but made no effort to take those depositions. (JA

423-24) LaRouche never even noticed the deposition of Larry

Cooper, the on-the-record source of the statements in the

broadcast about the discussion by LaRouche of the proposed

assassination of President Carter and others. (JA 423) The

District Court denied LaRouche’s motion. (JA 429)

On the day the trial began, October 22, 1984, LaRouche

filed his third motion, seeking to preclude the NBC defendants

from relying on confidential sources at trial. (JA 684) After

argument, that motion, too, was denied. (JA 693, 727-30)

Balancing the interests of LaRouche as a litigant against the

interests of both NBC and the public in protecting the confi-

dentiality of the sources, the District Court relied upon the

fact, inter alia, that “I have no evidence before me that the

plaintiff has tried to comply with [the requirement of] exhaus-

tion.” (JA 728)

The Trial

LaRouche called eight witnesses to prove that the broadcasts

were false. The first two witnesses, on cross-examination,

testified that they agreed with LaRouche that NBC, The New

York Times, The Washington Post, Walter Mondale and Henry

Kissinger were pari of the “drug lobby.” (Grauerholz Tr., I,

192-95; Mirak Tr., 1, 240, 246, 256)

The next three witnesses, all flown in from Germany, testi-

fied that they never heard LaRouche threaten to assassinate

members of the Carter Administration. (Rumpf Tr., II, 333-52;

Friesecke Tr., 11 RM., 21-29; Hellenbroich Tr., I] PM., 42-45)

The credibility of each was put at issue on cross-examination.

(E.zg., Rumpf Tr., Il, 361-63; JA 740-47; Hellenbroich Tr., Il

P.M., 47) Other witnesses testified that the statements in the

NBC broadcasts that LaRouche is anti-Semitic were untrue

(Weber Tr., VI A.M., 958-59) and the statements that La-

Rouche is anti-black were untruc. (Innis, Tr. If A.M., 307-09)

The final witness on falsity was LaRouche himself. La-

Rouche personally testified that virtually everything reported

in the two broadcasts was false. (E.g., LaRouche Tr., VI, 1010,

1020-30, 1035-37, 1067-91) He specifically denied that he had

ever expressed a desire to assassinate Jimmy Carter or any

member of Carter’s administration. (JA 1118) Mr. LaRouche

also testified that the only public figure in the United States in

more danger of assassination than LaRouche is President

Reagan (JA 1161), that the Bush, Kennedy, and Carter cam-

paigns all were involved in setting him up for assassination in

the 1980 presidential campaign (JA 1164, 1166, 1168), that

Governor Averill Harriman, Secretary of State John Foster

Dulles, Secretary of State Henry Kissinger and Secretary of

State Alexander Haig were all Nazis (JA 1174-77), and that

KGB officials dictated to presidential candidate Walter Mon-

dale the foreign policy program he adopted. (JA 1200-02)

LaRouche also called Pat Lynch, the producer of the First

Camera program, to testify. Ms. Lynch testified that she had

begun working on the March 4, 1984 program in early Decem-

ber of 1983 (Lynch Tr., Il RM., 72), that she had interviewed

more than 108 people on the record for the LaRouche broad-

cast (Lynch Tr., II PM., 143, 158) and that she repeatedly had

sought to interview LaRouche, but had been rebuffed. (E.z.,

Lynch Tr., If RM., 153, 155) Ms. Lynch testified for four days

on how she assembled the First Camera broadcast and on what

it was based. (E.g., JA 865-89) Ms. Lynch was questioned

extensively by LaRouche’s counsel as to what she had been

told by Larry Cooper, an on-the-record source for the assas-

sination story.*

During Ms. Lynch’s testimony, at LaRouche’s request, the

District Court asked the jurors whether they had read an article

in The Washington Post that morning. (The article reported on

death threats made against Ms. Lynch.) (JA 750-68) When two

4 As LaRouche’s counsel either solicited this testimony or did not

object to its admission, it came in for truth and was not subject to a

limiting instruction on the grounds of hearsay. E.g., Fed. R. Evid. 103;

1 J. Weinstein & M. Berger, Weinstein’s Evidence ¢ 103(02) (1985). No

such instruction was, in any event, even sought

jurors responded, the court asked them to come to the bench.

One juror had seen only the headline and a second had seen

only a reference to the article. Both testified that they could be

fair jurors in the case. (JA 769) In denying LaRouche’s motion

to strike the two jurors, the court said:

“I find the jurors I think are very candid, very forth-

right and indicated that they have an open mind. I think

they both looked me right in the eye and told me they

could decide this case on the basis of what they hear here

and are not influenced by it.” (JA 772)

The court then instructed the jury, as it had at the start of the

trial, that they should decide the case on the basis of what they

heard in the courtroom and to disregard any reports in the

newspapers. (JA 773-76)

The next morning, after a sketch artist for New Solidarity, a

LaRouche publication, appeared in the courtroom (JA 901),

the jury sent the District Court a note asking whether the artist

was for the plaintiff. (JA 899) At LaRouche’s counsel’s re-

quest, the court sent a note asking why the jury was concerned.

(JA 903-04) When the jury’s response included a crossed out

portion that indicated that some members expressed concern

for their personal safety (JA 907), the court conducted an

individual voir dire of each juror. (JA 908-13) As a result of

that voir dire the court excused Juror Kelly who expressed fear

for her personal safety, even though she said that her fear was

based solely on the testimony of the day before. (JA 909-10)°

After the court decided to excuse Juror Kelly, he said:

“I don’t find anything on my questioning of all of the

jurors that show that any others have any fear because |

asked them a very direct question, no preliminaries, they

just said no. I don’t think there was any hesitation on the

part of any of the jurors. . . . I don’t find anything in

5 Juror Fewel, an alternate who was excused before the jury began its

deliberations (Tr., IX, 1825-26), said that she just did not like the idea

of the artist sitting and looking at the jury and drawing. (JA 908-09)

8

the record as to my view of these jurors to show anything

that they have in any way been poisoned. This has been a

very, very attentive jury to what is going on. It’s been a

very fine jury.” (JA 920)

At the end of the day, when the judge denied a request that

further inquiry be made of the jury to determine to what extent

the subject was discussed, he noted that he had carefully

observed the jury during the day and saw no evidence of fear.

(JA 1038-39; see also JA 1388; JA 1585-87)

The jury returned a verdict for the defendants on La-

Rouche’s defamation claim, concluding that the broadcasts

were true. (JA 1447) The jury awarded NBC both actual

($2,000) and punitive ($3,000,000) damages on its counterclaim

against LaRouche for interference with advantageous business

relationships. (JA 1452) It returned a verdict for LaRouche on

NBC’s alternate counterclaim based on the Racketeer In-

fluenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961,

et. seq. (1982 & Supp. II 1984), as amended (“RICO”). (JA

1452)

Post-Trial Proceedings

LaRouche made a motion for judgment n.o.v. or in the

alternative for a new trial on NBC’s counterclaims. (JA 1469)

He did not move either for a directed verdict or for judgment

n.o.v. on his defamation claim against the NBC defendants.°

The District Court denied LaRouche’s motion for judgment

n.o.v. on the counterclaims, but on remittitur reduced the

punitive damages awarded against LaRouche to $200,000,

which NBC accepted. (JA 1589, 1605)

6 As a result, LaRouche is precluded from arguing that the evidence

was insufficient to support the jury’s verdict on the defamation claim.

See, e.g., Porter v. Eckert, 465 F.2d 1307, 1309 (Sth Cir. 1972); Warner

v. Kewanee Machinery & Conveyor Co., 411 F.2d 1060, 1063 (6th Cir.

1969), cert. denied, 398 U.S. 906 (1970); United States v. Mountain

State Fabricating Co., 282 F.2d 263, 265 (4th Cir. 1960); SA J. Moore,

Moore’s Federal Practice € 50.12, at 50-90 (2d ed. 1986).

9

SUMMARY OF ARGUMENT

In his petition for certiorari Mr. LaRouche seeks review of a

number of fact-specific rulings that the District Court made

well within the bounds of its discretion and that were affirmed

by the Court of Appeals for the Fourth Circuit. These rulings,

on motions, inter alia, to compel discovery and to declare a

mistrial for juror exposure to publicity during a libel trial,

provide no novel questions of law that merit this Court’s

review. Additionally, LaRouche’s request that this Court re-

view the District Court’s interpretation of Virginia law, which

was affirmed by the Court of Appeals, is not a proper subject

for certiorari.

The decisions of the District Court and the Fourth Circuit

are consistent with well-established law and present no occa-

sion for review by this Court.

ARGUMENT

THE COURT OF APPEALS’ AFFIRMANCE OF THE

DISTRICT COURT’S FACT-SPECIFIC DISCOVERY AND

EVIDENTIARY RULINGS WAS CORRECT AND PRE-

SENTS NO NOVEL OR IMPORTANT QUESTIONS

WARRANTING THIS COURT’S REVIEW

LaRouche cannot seriously claim that the District Court’s

confidential source rulings interfered with his ability to meet

his burden of proof on the issue of actual malice as that term

has been defined in New York Times Co. v. Sullivan, 376 U.S.

254 (1964), and its progeny. The jury’s verdict was based solely

upon LaRouche’s failure to prove that the broadcasts were

false.’ Thus, LaRouche’s repeated arguments that the rulings

7 LaRouche did not object to the charge of the court as to his burden

to prove that the broadcasts about him were false. See, e.g., Phila-

10

of both courts below interfered with his ability to prove

constitutional malice is a non sequitur. Only if both the District

Court and Court of Appeals interfered with LaRouche’s ability

to demonstrate falsity (as they did not) and were in error (as

they were not) could any claim of reversible error be enter-

tained by this Court.®

LaRouche focuses on two statements made in the First

Camera broadcast to illustrate the “impediment” that he suf-

fered as a result of these rulings. The first is the statement,

attributed to Larry Cooper in the broadcast, that LaRouche at

one time had plotted the assassination of members of the

Carter Administration. LaRouche complains that his inability

to cross examine Ms. Lynch about an additional, off-the-rec-

ord source for this story somehow impaired his right to a fair

trial. (Pet’n at 9-10) Yet LaRouche does not expiain how

knowledge of a confidential secondary source could have

enabled him to contradict Ms. Lynch’s reliance on the dis-

closed primary source, Mr. Cooper. LaRouche’s position is

made even more untenable by his failure to depose Mr. Cooper

during discovery. (JA 423) Finally, LaRouche presented four

delphia Newspapers, Inc. v. Hepps, 106 S. Ct. 1558 (1986); Buckley v.

Littell, 539 F.2d 882, 889-90 (2d Cir. 1976), cert. denied, 429 U.S. 1062

(1977); Falwell v. Penthouse International, Ltd., 521 F. Supp. 1204,

1208 (W.D. Va. 1981); Sellers v. Time, Inc., 299 F. Supp. 582, 584 n.2

(E.D. Pa. 1969), aff’d, 423 F.2d 887 (3d Cir.), cert. denied, 400 U.S.

830 (1970); Sharon v. Time, Inc., 599 F. Supp. 538, 558 (S.D.N.Y.

1984). LaRouche admitted that he is a public figure. (LaR. Br. at 29)

8 The standard of review of a decision on a motion to compel

discovery is limited to whether the District Court abused its discretion.

See, e.g., Laborers’ International Union v. United States Department

of Justice, 772 F.2d 919, 921 (D.C. Cir. 1984); Brown v. Reardon, 770

F.2d 896, 907-08 (10th Cir. 1985); Harden v. Adams, 760 F.2d 1158,

1167 (11th Cir.), cert. denied, 106 S. Ct. 530 (1985). To merit reversal

of an evidentiary ruling by any appellate court, LaRouche must

demonstrate not only error, but also prejudice. See, e.g., McDonough

Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984);

Palmer v. Hoffman, 318 U.S. 109, 116 (1943). This he cannot do.

1]

witnesses to the jury, all of whom swore that this statement was

false.” The jury simply did not believe him or his witnesses.

LaRouche also focuses on a second aspect of the First

Camera broadcast: the statement by one observer that “[a]ny

serious investigation by the Internal Revenue Service would

lead to criminal indictments and the closing down of the

LaRouche organization.” (JA 65) (Pet’n at 9-10) LaRouche

claims that the identity of NBC’s confidential sources was

crucial to his ability to prove falsity as to this statement as

well. Yet, LaRouche put on no witnesses from his organiza-

tions with knowledge of their financial dealings to testify as to

the supposed falsity of NBC’s statement. The jury, however,

heard LaRouche’s own testimony on the subject. After testify-

ing that “the statement is totally false in the form in which it

was broadcast” and that “anyone who would believe that or

say that is crazy, is a lunatic, is a mental case” (JA 1185),

LaRouche testified as follows:

“Q. Did you file a tax return this year?

“A. No, I did not.

“Q. What about last year?

“A. No, Mr. Kavaler.

“Q. What about the year before?

“A. No, Mr. Kavaler.

“Q. Have you filed a tax return anytime in the last ten

years, Mr. LaRouche?

“A. No, Mr. Kavaler.

“Q. Who paid for the suit you’re wearing, Mr. La-

Rouche?

“A. 1 don’t know, Mr. Kavaler.

9 Three of the witnesses testified that one of them was present when

Cooper was with LaRouche and that they heard no discussion similar

to that reported to Lynch by Cooper. (E.g., Rumpf Tr., II, 351-52,

Friesecke Tr., Il PM. 29; Hellenbroich Tr., Il PBM., 45) LaRouche

himself explicitly denied the truth of this part of the First Camera

story. (JA 1118)

12

“Q. You just found it in your closet, did you?

“A. No, it was a gift by persons associated with me

some years ago.

“Q. Are the other suits in your closet ones that you

went out to a store and bought?

“A. | have on no occasion gone out to a store and

bought an article of more than a haircut, a $5 price, in the

past ten years.

“Q. Do you know who pays for all those suits in your

closet?

“A. Ido not, Mr. Kavaler. I do not know in detail. I

have some general idea that they are gifts from people

associated with me or others.

“Q. I see. Who pays for your food, Mr. LaRouche?

“A. The same, Mr. Kavaler.” (JA 1185-86)

LaRouche testified he does not know who pays for his large

rented house in Leesburg, Virginia (shown on videotape to the

jury) (JA 1187-89) or for his first class or chartered plane

fares. (JA 1191-93) LaRouche did not pay for the lawyers

representing him in this personal defamation suit. (JA 1193-94)

In denying LaRouche’s motion for judgment n.o.v., the Dis-

trict Court found LaRouche’s testimony “that he has no

income and virtually no assets of his own” to be “completely

lacking in credibility,” and noted that the jury’s punitive

damage award indicated that the jurors similarly had rejected

LaRouche’s testimony. (JA 1603) Given such a record, there is

simply no basis for concluding that the lack of identification of

NBC’s sources was prejudicial to LaRouche’s case.

Moreover, the rulings of the courts below were correct.

Every federal court of appeals that has considered the question

has recognized some First Amendment protection for sources

to whom a promise of confidentiality has been made.'® At a

10 See, e.g., United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied,

464 U.S. 816 (1983); Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir.

1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583

13

minimum, the courts have required that a party seeking disclo-

sure Of such confidential information pursue reasonable al-

ternative sources for the information, especially in civil cases in

which no Sixth Amendment rights are at stake, before using

compulsory process to compel a journalist to break a promise

of confidentiality.'' LaRouche did not even begin to try to

obtain this information elsewhere.'’ In fact, he concededly

already possessed it. As the Court of Appeals succinctly

summarized:

“In denying LaRouche’s motions, the district court

grounded its decision on the fact that LaRouche had not

exhausted reasonable alternative means of obtaining this

same information. LaRouche did not depose Larry

Cooper, the public source of the Carter assassination

story. He did not exhaust all his non-party depositions

before making the motion, and he failed to demonstrate

to the court unsuccessful, independent attempts to gain

the requested information. In fact, New Solidarity, a

LaRouche publication, claimed that LaRouche already

knew the names of all of NBC’s principal sources well

(Ist Cir. 1980); Miller v. Transamerican Press, Inc., 621 F.2d 721 (Sth

Cir.), modified, 628 F.2d 932 (Sth Cir. 1980) (per curiam), cert. denied,

450 U.S. 1041 (1981); Riley v. City of Chester, 612 F.2d 708 (3d Cir.

1979); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-38 (10th Cir.

1977); United States v. Pretzinger, 542 F.2d 517 (9th Cir. 1976) (per

curiam); Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert.

denied, 411 U.S. 966 (1973); Bursey v. United States, 466 F.2d 1059

(9th Cir. 1972); Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972),

cert. denied, 409 U.S. 1125 (1973); Continental Cablevision, Inc. v.

Storer Broadcasting Co., 583 F. Supp. 427 (E.D. Mo. 1984); United

States v. Hubbard, 493 F. Supp. 202 (D.D.C. 1979).

See, e.g., Zerilli v. Smith, supra, 656 F.2d at 714-15; Baker v. F&F

Investment, supra, 470 F.2d at 783-84; Democratic National Commit-

tee v. McCord, 356 F. Supp. 1394, 1397-98 (D.D.C. 1973); Mize v.

McGraw-Hill, Inc., 82 F.R.D. 475, 477 (S.D. Tex. 1979): Apicella v.

McNeil Laboratories, Inc., 66 F.R.D. 78, 83, 85 (E.D.N.Y. 1975).

In this case, LaRouche demanded the identity of confidential

sources for the First Camera broadcast before that broadcast had been

aired or even edited. (JA 2; see JA 215-318)

140

before the two reports were broadcast.” (Pet’n App. at

A-8 to A-9)

In its rulings the District Court also considered the strong

public policy embodied in the New York shield law’? (JA

1436-37), Beach v. Shaniey, 62.N.Y.2d 241, 255-56, 465 N.E.2d

304, 312, 476 N.Y.S.2d 765, 773 (1984) (Wachtler, J., concur-

ring); see Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62

N.Y.2d 158, 168, 464 N.E.2d 967, 972, 476 N.Y.S.2d 269, 274

(1984), cert. denied, 105 S. Ct. 907 (1985), as well as a final

factor that is sui generis to this case—LaRouche’s history of

harassing reporters and their sources. This factor was an

appropriate one for consideration and amply supported by the

record. See NAACP v. Alabama ex rel. Patterson, 357 U.S.

449, 462-63 (1958).

When NBC produced hundreds of documents and video

tapes upon LaRouche’s request (JA 363), NBC first sought a

protective order that limited dissemination of material desig-

nated confidential—material that contained unbroadcast infor-

mation from and the identities of NBC’s on-the-record

sources—to LaRouche himself and his counsel. (See JA 3-4,

215-318; Motion of NBC for Protective Order, Dkt No. 42.)

That motion, based on LaRouche’s and his organizations’

prior history of harassing reporters and their sources, was

granted. (JA 4)'*

13 Ms. Lynch and Mr. Ross are based in New York out of NBC’s

national headquarters and are New York residents who worked on

broadcasts that originated in New York.

i4. The motion cited, inter alia, an occasion when LaRouche followers

used the name of a U.S. News & World Report reporter to conduct

interviews. This action was enjoined by the United States District

Court for the District of Columbia. U.S. News & World Report, Inc.

v. Campdtener Publications, Inc., 222 U.S.P.Q. 123 (D.D.C. 1982).

See Affidavit of Peter K. Stackhouse filed May 2, 1984, Dkt. No. 42;

see also JA 85-86.) The motion also was based upon published reports

that LaRouche campaign workers impersonated reporters and upon a

LaRouche campaign teletype that documented a nationwide campaign

of harassment of the Anti-Defamation League and all who report the

ADL’s comments on LaRouche. (Affidavit of Peter K. Stackhouse

filed May 2, 1984, Dkt. No. 42)

15

The District Court correctly held that LaRouche had not

overcome the NBC defendants’ qualified First Amendment

privilege. Once a court has determined that the identity of a

reporter’s confidential source is protected, the privilege does

not become divested at trial. There is simply no legal basis for

penalizing a party who properly asserts a privilege not to

disclose confidential communications. '*

The ruling of the District Court and its affirmance by the

Court of Appeals are both well grounded in the record and

legally correct. They do not provide a basis for review by this

Court.

15

See, e.g., Wehling v. Columbia Broadcasting System, 608 F.2d i084,

1087 (Sth Cir. 1979) (“we find no provision in the federal discovery

rules which authorizes a court to impose sanctions on a party who

resists discovery by asserting a valid claim of privilege”); 8 C. Wright &

A. Miller, Federal Practice and Procedure § 2018, at 147 (1970) (“Rule

37 contains elaborate sanctions if a deponent fails to answer a question

after being directed to do so by the court. . . . But if there is a valid

claim of privilege, the court cannot order that the question be

answered and that discovery be permitted”) (footnote omitted).

The cases cited by LaRouche in support of his claim of prejudice

differ markedly on their facts from this one. In DeRoburt v. Gannett

Co., 507 F. Supp. 880 (D. Hawaii 1981) and Downing v. Monitor

Publishing Co., 120 N.H. 383, 415 A.2d 683 (1980) (Pet'n at 13) the

courts imposed a presumption that no sources existed as punishment

for failure to obey the courts’ orders to disclose sources. The District

Court in this case, however, declined to enter any such order requiring

disclosure. In Dowd v. Calabrese, 577 F. Supp. 238, 243-44 (D.D.C.

1983) (Pet’n at 13, 15), the court imposed sanctions based on, inter

alia, the record’s indication of a strong likelihood that the sources did

not in fact exist. While Roviaro v. United States, 353 U.S. 53 (1957)

(Pet’n at 13), may support the proposition that in a criminal case the

government cannot assert a privilege that would impede a defendant’s

constitutional right to confront witnesses, it is LaRouche who is the

plaintiff in this civil case. Finally, Greenberg v. CBS Inc., 69 A.D.2d

693, 419 N.Y.S.2d 988 (2d Dep’t 1979), an early case construing the

New York Shield Law, effectively has been overruled by the New York

Court of Appeals in O»k Beach Inn Corp. v. Babylon Beacon, Inc., 62

N.Y.2d 158, 464 N.E. 967, 476 N.Y.S.2d 269 (1984), cert. denied,

105 S. Ct. 907 (1985).

16

THIS COURT SHOULD NOT REVIEW THE DISTRICT

COURT’S INTERPRETATION OF VIRGINIA LAW,

WHICH WAS AFFIRMED BY THE FOURTH CIRCUIT

LaRouche seeks to have this Court issue a writ of certiorari

to review the interpretation of Virginia law by the District

Court, which was affirmed by the Court of Appeals. (Pet’n at

22-24) This attempt must fail for two reasons. First, the

interpretation of state law by federal courts sitting in diversity

is not a proper subject for certiorari. See Supreme Court Rule

17.1(a) & (c). Second, this Court traditionally gives great

weight to determinations of local law by the lower federal

courts more familiar with that law.'® See Vorce v. Universal

Amusement Co., 445 U.S. 308 (1980) (per curiam); Bernhardt

v. Polygraphic Co. of America, Inc., 350 U.S. 198, 204-05

(1956).

ON THE FACTS OF THIS CASE THE DISTRICT

COURT’S REFUSAL TO DECLARE A MISTRIAL,

WHICH WAS AFFIRMED BY THE COURT OF AP-

PEALS, WAS WELL WITHIN ITS DISCRETION AND

IS NOT AN ISSUE SUITABLE FOR CERTIORARI

LaRouche claims that the District Court’s failure to declare

a mistrial or engage in further questioning of the jurors who

were exposed to publicity during the trial amounted to prejudi-

cial error requiring reversal. (Pet’n at 29)'’ The District Court,

16 Here, Judge Cacheris, who presided at the District Court, pre-

viously had served as a state court judge in Virginia.

17 The question of prejudicial publicity generally arises in criminal

cases where a defendant’s life or liberty are at stake. The civil cases

cited by petitioner in support of his argument involved not publicity

but extensive private communications with or threats to jurors by third

parties. See Texas & New Orleans Railroad Co. v. Underhill, 234 F.2d

620 (Sth Cir. 1956); Paramount Film Distributing Corp. v. Apple-

baum, 217 F.2d 101 (Sth Cir. 1954), cert. denied, 349 U.S. 961 (1955);

17

however, followed the proper procedure to the letter in its

handling of the Washington Post article that LaRouche claims

prejudiced the jury.'*

First, in his initial instructions to the jurors, the District

Court judge admonished them against reading any articles or

listening to any broadcasts concerning Mr. LaRouche or the

trial. (Tr., 1, 51) See e.g., United States v. Jackson, 649 F.2d

967 (3d Cir.), cert. denied, 454 U.S. 1034 (1981); Goins v.

McKeen, 605 F.2d 947, 954 (6th Cir. 1979).

Second, when an article was published in the Washington

Post, the District Court conducted a voir dire of the jurors to

determine whether any jurors had seen the article. When two

jurors indicated they had, he questioned them individually,

outside the hearing of the other jurors. See, e.g., United States

v. Hankish, 502 F.2d 71, 77 (4th Cir. 1974); United States v.

Jackson, 649 F.2d 967, 975-76 (3d Cir.), cert. denied, 454 U.S.

1034 (1981); United States v. Lord, 565 F.2d 831, 838-39 (2d

Cir. 1977); Margoles v. United States, 407 F.2d 727, 735 (7th

Cir.), cert. denied, 396 U.S. 833 (1969); see also Marshall v.

United States, 360 U.S. 310, 312 (1959) (per curiam) (“The

trial judge has a large discretion in ruling on the issue of

prejudice resulting from the reading by jurors of news articles

concerning the trial. . . . [EJach case must turn on its special

facts.”).

Ewers’ Administrator vy. National Improvement Co., 63 F. 562

(C.C.W.D. Va. 1894) and Krause v. Rhodes, 570 F.2d 563 (6th Cir.

1977), cert. denied, 435 U.S. 924 (1978), which effectively was over-

ruled by United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984),

cert. denied, 105 S. Ct. 906 (1985).

18 In the two criminal cases Mr. LaRouche relies on, the trial judge did

not follow the well-established procedure that the District Court did

here. Goins v. McKeen, 605 F.2d 947, 954 (6th Cir. 1979) (failure to

instruct jury in advance not to read publicity about trial); United

States v. Herring, 568 F.2d 1099, 1102 (Sth Cir. 1978) (failure to

question jury to determine extent of exposure to newspaper article or

headline).

18

The judge also conducted a voir dire when the jury expressed

concern over the presence of a sketch artist (from a LaRouche

publication) in the courtroom. (JA 899) When one juror

expressed fear that arose not from published news accounts,

but solely from the testimony (JA 909-10), the judge excused

her. He denied the appellant’s motion for a mistrial because he

found on the basis of his voir dire, that the jury was “very

fine” and had not been “poisoned” by any external publicity.

(JA 920)'?

A mistrial is hardly automatic where there has been public-

ity; the decision to continue the trial rests “in the sound

discretion of the district judge, and he should exhaust other

possibilities before aborting a trial.” United States v. Hankish,

502 F.2d 71, 77 (4th Cir. 1974). See United States v. Jones, 542

F.2d 186, 197 (4th Cir.), cert. denied, 426 U.S. 922 (1976) (no

error in refusal to declare a mistrial when juror who expressed

fear due to a headline was excused); United States v. Watch-

maker, 761 F.2d 1459, 1466 (11th Cir. 1985), cert. denied, 106

S. Ct. 879 (1986) (“Discussions among the jurors as to their

fear of the defendants are not inappropriate, so long as such

discussions do not lead them to form an opinion of the

defendants’ guilt or innocence of the offenses charged.”)

The District Court’s decision to continue the trial despite

LaRouche’s two motions for a mistrial is consistent with all

these rulings. The judge’s careful questioning, coupled with his

dismissal of one juror, demonstrate that he acted in an excess

of caution in assuring the impartiality of the jury. The District

Court did not abuse its discretion by denying LaRouche’s

motions for a mistrial and therefore there is no reason for this

Court to exercise its supervisory power.

19 LaRouche contends that another member of the jury—Juror

Fewel—also expressed fear, but was not excused on that basis. Juror

Fewel, however, merely testified that she “didn’t like the idea of [the

artist] being able to draw, you know, sitting and looking right at us.”

(JA 908-09) Juror Fewel was an alternate juror who ultimately did not

participate in the jury’s deliberations. (Tr., IX, 1825-26)

19

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

FLOYD ABRAMS

CAHILL GORDON & REINDEL

80 Pine Street

New York, New York 10005

(212) 701-3000

Of Counsel:

THOMAS J. KAVALER

DEVEREUX CHATILLON .

JOAN T. INFARINATO

CAHILL GORDON & REINDEL

(a partnership including

professional corporations)

PETER K. STACKHOUSE

TOLBERT, SMITH, FITZGERALD

& STACKHOUSE

2300 Ninth Street, South

Arlington, Virginia 22204

(703) 521-5252