Opposition Brief — Lyons v. Rhode Island Public Employees Council 94

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: No. 89-229 ene

EP JS 398!

IN THE JOSEP! F. Si atoll

Supreme Court of the United States as

OCTOBER TERM, 1989

KENNETH T. LYONS, and NATIONAL ASSOCIATION OF

GOVERNMENT EMPLOYEES, INC.,

> Petitioners,

RHODE ISLAND PUBLIC EMPLOYEES COUNCIL 94

and

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES,

Respondents.

——_——»

On Petition for a Writ of Certiorari to the

Supreme Court of Rhode Island

BRIEF IN OPPOSITION

DAVID E. KENDALL

Counsel of Record

WILLIAM K. LAYMAN

WILLIAMS & CONNOLLY

839 17th Street, N.W.

Washington, D.C. 20006

(202) 331-5000

MILTON STANZLER

56 Pine Street

Providence, Rhode Island 02903

(401) 272-7800

RICHARD KIRSCHNER

KIRSCHNER, WEINBERG

& DEMPSEY

Suite 1360

1615 L Street, N.W.

Washington, D.C. 20036

(202) 775-5900

Counsel for Respondents

WILSON - Epes PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT .......

If.

ITI.

The Rhode Island Supreme Court’s Finding

That the Anderson Reprint Contained No False

Statement of Fact Was Based On the Applica-

tion of Settled Principles of State Law ........ ress

The Rhode Island Supreme Court Decision Does

Not Conflict with Other Precedents .....................

There Is No Reason for This Court Again to

Consider the Nature of the Independent Appel-

late Review Obligation in a Public Figure Libel

ga IS alah A Otne Pe OI MEA Tate LA ca OE RE Oe -

The Result Below Is Appropriately Protective of

Vigorous and Heated Speech Uttered During a

Hard Fought Labor Election Campaigr. .............

CONCLUSION .......00..... RAMA LEA ARLE AS psec ty

TABLE OF AUTHORITIES

CASES Page

Antwerp Diamond Exchange of America, Inc. v.

| Better Business Bureau of Maricopa County,

Inc., 180 Ariz. 528, 687 P.2d 733 (1981) ............. 7

Barasch v. Soho Weekly News, 208 N.J. Super.

163, 505 A.2d 166 (App. Div. 1986) -....000 2. 7

Bose Corp. v. Consumers Union of United States,

ine. 46 US. 46. OSS)... 9

Bray v. Providence Journal Co., 101 R.I. 111, 220

SBE G8 CI ocicestncotceccc eee 4,5

Della Posta v. Rand Express Freight Lines, Inc.,

G6 R.t. 148, 195 A2a TS (i9t) ...c2 4

DiLorenzo v. New York Times, Inc., 81 A.D.2d

844, 432 N.Y.S.2d 483 (N Y. App. Div. 1980)... 7

Elias v. Youngken, 493 A.2d 158 (R.I. 1985)... 4,5

Harte-Hanks Communications, Inc. v. Connaugh-

ton, US. , 109 S. Ct. 257, 105 L.Ed.2d

aE | eee nsannehiitalcscuumeelatiddaedaiaeaaeee 9

Healey v. New England Newspapers, Inc., 555

A.2d 321 (R.I. 1989) pet. for cert. pending, No.

II sinc ttecsniicsininercorvncsanio caine a 6

Hob Nob Hill Restaurant v. Hotel and Restaurant

Employees Union, 660 F. Supp. 1266 (S.D. Cal.

|} | ene AT 10

Lyons v. Policemen’s Association of the District

of Columbia, Inc., Civil Action No. 74-441, slip

op. (D.D.C. Feb. 20, 1976) ......00..0. eee 8

Lyons v. Rhode Island Public Employees Council

94, 516 A.2d 1839 ¢€R.I. 1986) .............................. passim

Lyons v. Rhode Island Public Employees Council

94, 559 A.2d 130 (R.I. 1989) ..........................-....- passim

Melrose-Wakefield Hospital Ass’n v. NLRB, 615

rae 66 (itt Ch. 1900)... 10

Mills v. Alabama, 384 U.S. 214 (1966)... 10

New York Times Co. v. Sullivan, 376 U.S. 254

GRID ais ovo inesivannnsoensasn'sssSdcumbececdcsadeeese eee 9

Ocaia Star-Banner Co. v. Damron, 401 U.S. 295

¢: : f } enn MeNRaEC RS) ute el 10

Old Dominion Branch No. 496, Nat’l Ass’n of

Letter Carriers v. Austin, 418 U.S. 264 (1974).. 10

iii

TABLE OF AUTHORITIES—Continued

Page

Reilly v. Gillen, 176 N.J. Super. 321, 423 A.2d 311

Neen ee. Lsisebengunenencancsssusnsons 7

MISCELLANEOUS

Restatement (Second) of Torts § 558 (1977) ........ 5

Sack, Libel, Slander, and Related Problems

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-229

KENNETH T. LYONS, and NATIONAL ASSOCIATION OF

GOVERNMENT EMPLOYEES, INC.,

a Petitioners,

RHODE ISLAND PUBLIC EMPLOYEES COUNCIL 94

and

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Rhode Island

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The facts of this case are relatively straightforward.

In 1975 and 1976, three labor elections took place be-

tween, on one side, respondents American Federation of

State, County, and Municipal Employees (hereinafter

“AFSCME”) and Rhode Island Public Employees Coun-

cil 94 (hereinafter ‘Council 94’’) and, on the other side,

petitioner National Association of Government Employees,

Inc. (hereinafter “NAGE”). Respondents distributed cam-

paign leaflets which consisted of an accurate reproduc-

tion of an October 31, 1972 column by investigative re-

porter Jack Anderson regarding two 1972 investigations

of NAGE’s president, petitioner Kenneth T. Lyons. The

correct date of the column was prominently displayed on

the reprints.

The Jack Anderson column contained no false state-

ments of fact when it was originally published in 1972.

In addition to discussing investigations of Lyons by the

Departments of Justice and Labor regarding alleged ties

to organized crime and the misuse of union funds, the

article stated that Lyons was “[o]ne of President Nixon’s

favorite labor leaders,” and ‘national vice chairman of

Democrats for Nixon.” The column also discussed the

up-coming 1972 presidential election in detail.

The Jack Anderson reprints distributed by respondents

in 1975 and 1976 were full and accurate reproductions

of the original column. In addition to the dating refer-

ences within the text of the column, respondents typed

the column’s original publication date, “October 31, 1972,”

above the reprint in type larger than that of the column

itself.' Prior to the distribution of the reprints, however,

both federal investigations were concluded with no en-

forcement actions taken against Lyons. The reprints did

not include these facts.

Petitioners brought a libel case based on the dissemi-

nation of the reprints which was first tried in 1983 in

the Superior Court of Rhode Island.? The jury found in

favor of all defendants, including respondents. Petition-

ers’ new trial motion was denied by a successor judge

after the trial judge died. The Rhode Island Supreme

Court remanded the case for a second trial, however, be-

cause it found that the new trial motion required assess-

ment of the credibility of the witnesses, which the suc-

1Some of the reprints also contained a large headline stating

“EXPOSE/Jack Anderson Looks at NAGE,” underlinings and one

circle around a portion of the text, and a jagged line surrounding

the entire article.

? Petitioners stipulated that they were “public figures.”

cessor judge could not do. At the second trial in Decem-

ber 1987, the jury found respondents liable.*

On appeal, however, the Rhode Island Supreme Court

reversed, finding that the Jack Anderson reprints con-

tained no false statements of fact and had not been dis-

tributed with “actual malice.” Lyons v. Rhode Island

Public Employees Council 94, 559 A.2d 130 (R.I. 1989) .'

Specifically, the court relied on state law in finding that

the Jack Anderson reprints did not contain false state-

ments of fact because the references to “President Nixon”

and the 1972 election dated the column, the reprints were

affirmatively labelled with the original publication date,

and the reprints had been distributed in the context of

hotly contested labor elections. Additionally, the court

independently reviewed the record and did not find clear

and convincing evidence that the reprints were distrib-

uted with knowledge or reckless disregard of any falsity.

Petitioners now seek review in this Court. Despite pe-

titioners’ dramatic claim that the Rhode Island Supreme

Court has “given birth to a startling and disquieting

new First Amendment ‘right’,” Petition for Certiorari

(“Petn.”) at 11, the court below merely applied settled

principles of libel law to the particular facts of this case.

Respondents respectfully submit that the petition for

certiorari should be denied.

3 A third defendant, AFSCME Local 911, was found not liable.

4 Subsequent citations to the opinion below will refer to the

pages of the opinion as it is reprinted in the appendix to the

Petition, i.e., ‘“Petn. App. at Al.”

REASONS FOR DENYING THE WRIT

I. The Rhode Island Supreme Court’s Finding That the

Anderson Reprint Contained No False Statement of

Fact Was Based On the Application of Settled Prin-

ciples of State Law.

The Rhode Island Supreme Court relied steal on set-

tled principles of state law in finding that the Jack An-

derson reprints did not contain any false statement of

fact, because a reasonable reader would understand the

publication to be a dated, historical document, written at

a particular point in the past and not implying any par-

ticular facts about the present:

Reading these reprints in their historical context,

noting the insertion of the October 31, 1972 date,

and realizing that the reprints were republished dur-

ing heated labor elections, we find that the jury is

prevented from concluding that the article was false

and defamatory. Therefore, we find that the EX-

POSE and Anderson reprints did not contain a false

and defamatory statement of fact.

Petn. App. at All.

The court considered itself obligated to construe the

reprint, as a whole, in the context in which it was pub-

lished. As the text of the decision makes clear, these re-

quirements were mandated by the court’s previous deci-

sions in Della Posta v. Rand Express Freight Lines, Inc.,

86 R.I. 148, 133 A.2d 775 (1957), and Bray v. Provi-

dence Journal Co., 101 R.I. 111, 220 A.2d 531 (1966).

Petn. App. at A8. The court also relied on the Rhode

Island definition of “false” and “defamatory” words, cit-

ing its previous decision in this case, Lyons v. Rhode Is-

land Public Employees Council 94, 516 A.2d 1339 (R.I.

1986), as well as that decision’s quotation from Elias v.

Youngken, 493 A.2d 158 (R.I. 1985).

These cases repeat traditional and elementary rules of

construction for determining whether a statement ex-

presses or implies a falsehood.

Words alleged to be defamatory must be read in the

context of the publication in which they appear,

taken as a whole.

Lyons, 516 A.2d at 1348. Thus, the court must consider

the entirety of a publication, including its headline, Bray,

220 A.2d at 534-35, and must consider the context and

reasonable meaning of the words, Elias, 493 A.2d at 161-

63. These are not constitutional principles, but simple

rules of state law which, as construed and applied by

judges, control a jury’s permissible interpretation of of-

fending words. Moreover, these rules of construction are

generally accepted and long-established. See, e.g., Sack,

Libel, Slander, and Related Problems, 51-55 (1980).

The Rhode Island Supreme Court never states that it

was “constitutionally compelled,” Petn. at 18, to find no

falsity. In fact, its legal analysis is carefully constructed

to indicate unmistakable reliance on state law. See Petn.

App. at A8-A10. After reiterating the three elements re-

quired in an action in libel, citing only to its own deci-

sions and to Restatement (Second) of Torts § 558

(1977), and discussing the definition of “false and de-

famatory” under Rhode Island common law, the court

states the applicable rules of construction for applying

this definition. This section of the opinion relies exclu-

sively on previous decisions of the Rhode Island Supreme

Court applying state common law.® The court’s intention

to base its “falsity” analysis exclusively on state law is

then underlined by the immediately following discussion

of the “actual malice” requirement which, by contrast,

5 The decision’s only reference to federal concerns in its falsity

analysis is its statement that “[t]he important constitutional con-

cerns regarding free speech are greatest when a publication is

political and is distributed during an election.” Petn. App. at All

(omitting citation to two decisions of this Court). The Rhode

Island Supreme Court’s opinion makes clear, however, that the

court considered the political context of the speech because of the

state law mandate “that we not isolate the words from the circum-

stances in which they were spoken.” Petn. App. at All.

relies extensively and explicitly on First Amendment

principles. Petn. App. at A9-A10.°

II. The Rhode Island Supreme Court Decision Does Not

Conflict with Other Precedents.

The Rhode Island Supreme Court did not in this case

apply or create a radical new theory of “falsity” which

is in conflict with other state courts or with its own

earlier decisions. The court below has expressly recog-

nized that a libel cause of action can be based on a false

implication (by omission or otherwise) if the words, read

in context, could be reasonably understood by the average

person to state a defamatory falsehood. See Healey v.

New England Newspapers, Inc., 555 A.2d 321, 326 (R.I.

1989), pet. for cert. pending, No. 88-1939; Lyons, 516

A.2d at 1343. The present decision in no way repudiates

the holding of only two months earlier in Healey that

true facts could give rise to an actionably false implica-

tion. Rather, because of the factual context, the court

found no such implication in this particular case.

Petitioners cannot demonstrate that the decision below

has “given birth to a startling and disquieting new First

Amendment ‘right,’ ”’ Petn. at 11, so they attempt to show

6In attempting to give weight to the allegation that constitu-

tional issues lurk beneath the surface of the opinion, petitioners

raise several transparently insubstantial issues, all of which fail

to transform the Rhode Island definition of “falsity” into a matter

of constitutional concern. Petitioners discuss both the republication

rule, Petn. at 11-12, and the fair report privilege, Petn. at 12-13,

despite the fact that these concepts are, as petitioners admit, merely

“common-law concepts of truth and privilege,” Petn. at 13, were

not argued by the parties in the Rhode Island Supreme Court, and

are not even alluded to by the opinion. Additionally, petitioners

discuss the relevant common-law issues of falsity by omission, Petn.

at 15-18, and falsity by implication, citing a variety of cases which

primarily apply state common law. Petn. at 18-19. The Rhode

Island Supreme Court, however, has neither eliminated nor nar-

rowed these doctrines, on a constitutional or other basis. See infra,

Section II.

that similar cases have come to opposite conclusions. Pe-

titioners’ argument, however, demonstrates only that

different facts may produce different results.

Reilly v. Gillen, 176 N.J. Super. 321, 423 A.2d 311

(App. Div. 1980), cited by petitioners, is, for example,

easily distinguishable. The New Jersey court found

“false” a reprint which reported a charze of conspiracy

against a city council candidate because the complaint

was later dropped. The Reilly reprint, however, was 23

years old and the decision gives no indication that it was

plainly dated. It contained substantive errors unrelated

to the acquittal and was distributed only three days be-

fore the election. By contrast, the three-year-old Jack

Anderson reprint was clearly dated in several ways and

was published well in advance ef election day of a heated

campaign. Petn. App. at All. Every other “false accusa-

tion” case cited by petitioners, Petn. at 16-18, is distin-

guishable on more general grovnds.’

’ Particularly, they all deal with a contemporary report of a

stale accusation or conviction with the suggestion (often through

the omission of the relevant date) that the information is the

most current (and, hence, most accurate) available: By contrast,

the dated reprint of an old news item in the present case is pre-

sented as the opposite of up-to-date news—it clearly implies that

subsequent events may have occurred. Respondents have a variety

of other disagreements with the way petitioners summarize the

holdings of other state precedents. Barasch v. Soho Weekly News,

208 N.J. Super. 163, 505 A.2d 166, 175 (App. Div. 1986) did not

find falsity, but merely remanded for further findings. Moreover,

the New Jersey court indicated that the reporting of a stale crim-

inal accusation could be privileged unless reported “in some com-

pletely unrelated matter... before the public... .” The decision

in DiLorenzo v. New York Times, Inc., 81 A.D.2d 844, 482 N.Y.S.2d

483 (N.Y. App. Div. 1980), does not indicate that there was ever

any conviction, making the report of conviction false on its face

even without the omission of later acquittal. In Antwerp Diamond

Exchange of America, Inc. v. Better Business Bureau of Maricopa

County, Inc., 130 Ariz. 523, 637 P.2d 733 (1981), the court made

no explicit finding of falsity, and may have been inclined to assume

that readers of a Better Business Bureau publication would expect

more (or more contemporary) accuracy.

Nor is the decision below at odds with Lyons v. Police-

men’s Association of the District of Columbia, Inc., Civil

Action No. 74-441, slip op. (D.D.C. Feb. 20, 1976). This

1976 decision of the United States District Court for the

District of Columbia involved a republication of only part

of the Jack Anderson reprint under wholly different cir-

cumstances. ~Petitioners themselves note that the portions

of the article containing Mr. Lyons’ denials of the charges

were omitted. Petn. at 15 n.9. In fact, seven full para-

graphs were omitted. Additionally, the reprint at issue

in the D.C. case (1) was not distributed as part of a

labor election campaign, (2) contained a headline com-

posed not by Jack Anderson but by the republishers

(“IBPO PRESIDENT INVESTIGATED FOR MISUSE

OF UNION FUNDS AND PERJURY”), and (3) con-

tained additional text added by the republishers stating

that they did not “know of the final outcome of the inves-

tigation,” a statement which under the circumstances was

plainly false.* Thus, the decision below does not conflict

with the common law or with any prior application of

law to the Jack Anderson reprint.

III. There Is No Reason for This Court Again to Consider

the Nature of the Independent Appellate Review Obli-

gation in a Public Figure Libel Case.

Three months ago, the Court announced an opinion

joined by eight Justices * in which it considered at length

the manner in which a reviewing court in a public figure

libel case must exercise its independent judgment to de-

—

8 Petitioners are additionally incorrect in asserting that the

Rhode Island Supreme Court “reversed not only the verdict but its

own prior ruling in this very case... .” Petn. at 3. The only ruling

made by the court in Lyons v. Rhode Island Public Employees

Council 94, 516 A.2d 1339 (R.I. 1986), was that piaintiffs’ new

trial motion should be granted because the motion could not prop-

erly be decided by a judge who did not sit through the trial and,

therefore, could not assess the credibility of the witnesses.

9 Mr. Justice Scalia filed an opinion concurring in the judgment.

termine whether the record establishes actual malice with

the convincing clarity required by the New York Times

Co. v. Sullivan® line of cases. Harte-Hanks Communica-

tions, Inc. v. Connaughton, U.S. , 109 S. Ct.

257, 105 L.Ed.2d 562 (1989). The present case was de-

cided approximately a month prior to the Harte-Hanks

decision but is perfectly consistent with it. Indeed, it is

significant that apart from a casual and perfunctory as-

sertion that the decision below “is directly at odds with”

Harte-Hanks, Petn. at 22, petitioners neither address

Harte-Hanks nor articulate just why the Court should so

soon again consider the standards for appellate review of

a public figure libel case.

There is simply no need for the Court to revisit these

issues until the lower courts have had time to consider

and apply the Harte-Hanks rules. In this case, the Rhode

Island Supreme Court followed the mandate of Bose Corp.

v. Consumers Union of United States, Inc., 466 U.S. 485,

499 (1983), in a manner which anticipated this Court’s

decision in Harte-Hanks:

In finding whether “clear and convincing” evidence

of “actual malice” exists, we must independently

examine the whole record. New York Times Co. v. |

Sullivan, 376 U.S. at 285, 84 S. Ct. at 729, 11 L. Ed.

2d at 709. The usual “clearly erroneous” standard

of appellate review is not applicable, so we must ex-

amine mixed findings of fact and law to determine

the issue of actual malice.

Petn. App. at A9-A10. In fulfilling this duty, the court

reviewed testimony from the employees of respondents

who actually disseminated the Jack Anderson reprints.

Petn. App. at A12-A13. More importantly, however, the

court determined that, under relevant state law principles

of construction, the publication could not have been made

with actual malice because it was not “false.” See supra,

10 376 U.S. 254 (1964).

—

Section I. This independent review is entirely unremark-

able and presents no reason for further review by this

Court.

IV. The Result Below Is Appropriately Protective of Vig-

orous and Heated Speech Uttered During a Hard

Fought Labor Election Campaign.

As petitioners recognize, this case concerns a “literally

accurate but incomplete” publication. Petn. at 13. The

Jack Anderson reprint was circulated during a heated

election contest between rival labor unions. This Court

has frequently held that the First Amendment is par-

ticularly protective of political speech distributed during

an election even when that speech is vituperative, exag-

gerated or hyperbolic. Ocala Star-Banner Co. v. Dam-

ron, 401 U.S. 295, 300-01 (1971); Mills v. Alabama, 384

U.S. 214, 218-19 (1966). Moreover, adversarial speech

is given unusually wide tolerance in a labor union con-

text:

“It is a cliche by now but, nonetheless, an imbedded

policy in labor relations that electioneering or cam-

paigning has a broad tolerance. We do not encour-

age, nor do we prohibit, the exaggeration, the dis-

semination of half-truth or accusation. In sum, we

leave it to the employee to decide.”

Old Dominion Branch No. 496, Nat'l Ass’n of Letter Car-

riers v. Austin, 418 U.S. 264, 275 (1974) (quoting

Naumoff, Ground Rules for Recognition Under Executive

Order 11491, 22 Lab. LJ. 100 (1970) (emphasis

added) ) .*?

11 Robust and provocative speech is typical of labor union cam-

paigns: “Federal labor policy encourages robust, even abusive,

speech during labor conflicts,” Hob Nob Hill Restaurant v. Hotel

and Rest. urant Employees Union, 660 F. Supp. 1266, 1269 (S.D.

Cal. 1987) , “most exaggerations and misstatements are left to be

countered or corrected in the give and take of a robust campaign,”

Melrose-W akefield Hospital Ass’n v. NLRB, 615 F.2d 563, 567 (1st

Cir. 1980).

ro |

These policies underlie the fact that the alternative

to the Rhode Island Supreme Court’s holding is unten-

able. Had the court allowed petitioners to collect millions

in damages for dissemination of the Jack Anderson re-

print on the ground that it was misleading, incomplete

or contained a “half truth,” it would have imposed ab-

surd and sterile limitations on political campaigns and

labor disputes. The Jack Anderson column reprinted in

the campaign leaflets was aecurately dated and contained

a great deal of information that was indisputably accu-

rate and relevant to voters in the union elections: that

petitioner Lyons was vice-chairman of Democrats for

Nixon, that he-had numerous Nixon connections, and that

he had testified before the Senate about his contacts with

a company with underworld connections.

The court wisely recognized that it could not require

political eandidates to publicize facts which benefit their

opponent, to redact their campaign material, or to give

a “balanced” accounting of their opponents’ record. In

this case in particular, the reprint was circulated long

before the relevant elections and petitioners had every

opportunity not only to attack the reprint as incomplete,

unfair or misleading, but also actually to supply any

omitted or updating information as part of the give-and-

take of a free election.'”

12 The Rhode Island Supreme Court also recognized that the par-

ticipants in a labor election campaign are aware of the biased

nature of the candidates’ charges and countercharges. Thus the

court noted that one voter in the election testified that “[j]ust

because someone says something does not mean its true.” Petn

App. at Al2. This acknowledgment of the public’s expectations of

labor campaigns was yet another application of the traditional

standard adopted by the court: “what the person ... to whom the

communication was published reasonably understcod as the mean-

ing intended to be expressed.” Lyens, 516 A.2¢d at 1343 (quoting

Restatement (Second) of Torts § 563(e) (1977})}.

nettle

CONCLUSION

For the above-stated reasons, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,