# Opposition Brief — LaRouche v. National Broadcasting Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1933%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 818

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1933%3A2. Public record. Not legal advice.