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

SUPREME COURT OF THE UNITED STATES

RHODE ISLAND

PI

and AMERICAN FEI

AND MUNICIPAL EM

No. 89-229

BLIC EMPLOYEES ¢

On Petition for a Writ of Certiorars

to the Supreme Court of Rhode Island

PETETIONER’S REPLY MEVORANDUMW

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TABLE OF AUTHORITIES

Cases: Page(s)

Bose Corp. v. Consumers Union,

SOG. UB. SBS (hPSepccccccesses passim

Harte-Hanks Communications, Inc.

v7. Connaughton, 109 S.Ct.

i ee | haere Te eT eee 7s ae

Lewisohn v. Dial Press, Inc.,

264 A.D. 370, 35 N.Y.S.2d

BRE CARO UOPE 4 6446440646560 6406 Owes 12

Lyons v. Policemen's Association

of the District of Columbia,

C.A. No. 74-441 (D.5.C.

Fed. 20, 1976) .cccceseersB, 9, 10, 12

Michigan v. Long, 463 U.S. 1032

Cl hh RPPPPPT TILL CT ELT ETT Tee 4

Mills v. Alabama, 284 U.S. 214

6). | } rrr e*eeees eeeee#eee#e#ee#eee#t#e#e#ee#*#*# 3

New York Times Co. v. Sullivan,

5, oF Me eels aeprerrrrrrT 5, 6

Ocala Star-Banner Co. v. Damron,

SOG Dalen SOO CEPT e eee cceececsceseces 3

Old Dominion Branch No. 496,

National Association of Letter

Carriers v. Austin, 418 U.S.

gt 5. | RE reer. Fae |

Philadelphia Newspapers, Inc.

v. Hepps, 475 U.S. 767 (1986)...2, 4

Reilly v. Gillen, 176 N.J.

Super. 321, 423 A.2d 3li

(App. Div. 1960) ....c02ee-10, ll, 12

- ii-

Tavoulareas v. Piro, 817 F.2d 762

(D.c. Cir.), cert denied,

108 S.Ct. 200 (1987). cee ceneeeeeees

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

No. 89-229

KENNETH T. LYONS and NATIONAL ale da

OF GOVERNMENT EMPLOYEES, INC.,

Petitioners,

Vs.

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

PETITIONERS' REPLY MEMORANDUM

1. Respondents' contention that the

Rhode Island Supreme Court's holding on

the decisive issue of falsity was based

i/ Information concerning petitioner

NAGE as required by Rule 28.1 is set forth

in the Petition for Certiorari, at p.ii.

- io

solely on state law is manifestly

incorrect. In their briefs to the Rhode

Island Supreme Court, respondents argued

that proof of falsity in a libel action is

constitutionally mandated, citing

Tavoulareas v. Piro, 817 F.2d 762 (D.C.

Cir.), cert. denied, 108 S.Ct. 200 (1987),

and that the constitutional requirement of

searching appellate review under Bose

Corp. v. Consumers Union, 466 U.S. 485

(1984), extends to the issue of falsity.

Further, it is clear that the Rhode Island

Supreme Court was convinced that the

determination of falsity in this case was

governed by constitutional principles, as

is revealed by its explicit reliance on

Philadelphia Newspapers, Inc. v. Hepps,

475 U.S. 767 (1986), as well as by the

fact that the court's holding on the

falsity issue is immediately preceded by a

discussion of its review obligations under

Bose, culminating in the observation that,

-3-

under Bose, the record must “independently

Support the assertion that the alleged

defamatory material contains a false and

defamatory statement of fact." Petn. App.

A-10. Moreover, as even respondents

acknowledge, the Rhode Island Supreme

Court bolstered its finding that the

Anderson reprint was not false by

citations to this Court's First Amendment

rulings in Ocala Star-Banner Co. v.

Damron, 401 U.S. 295 (1971), and Mills v.

Alabama, 384 U.S. 214 (1966). The Rhode

Island Supreme Court's opinion thus makes

clear that in holding that the Anderson

reprints were, as a matter of law, not

"false," the court perceived itself to be

exercising a reviewing function required

by the First Amendment and to be affording

constitutional. protection to respondents'

speech. The correctness of the Rhode

= 4 _

Island court's holding thus presents a

question of federal constitutional law.

That the Rhode Island court also

cited opinions based on Rhode _ Islana

common law does not insulate its holding

from review by this Court. "([W]hen, as in

this case, a state court decision fairly

appears to rest primarily on federal law,

or to be interwoven with the federal law,

and when the adequacy and independence of

any possible state law ground is not clear

from the face of the opinion, we will

accept as the most reasonable explanation

that the state court decided the case the

way it did because it believed that

federal law required it to do so."

Michigan v. Long, 463 U.S. 1032, 1040-41

(1983) (emphasis added). The Rhode Island

Supreme Court's primary reliance on Bose

and Hepps as the basis for its review of

the question of falsity renders’ the

court's citation of state-court authority

- 5 -

insufficient to provide an adequate and

independent State-law basis for its

holding. At the very least, the Rhode

Island court's ruling on falsity is

"interwoven" with federal constitutional

law, and thus may be reviewed by this

Court.

2. Respondents’ reliance on cases

applying federal labor policy to libel

actions, such as Old Dominion Branch No.

496, National Association of Letter

Cacriers v. Austin, 418 U.S. 264 (1974),

is misplaced. Unlike the labor dispute in

Austin, the labor election in which

respondents libeled petitioners did not

even implicate federal labor policy, as it

involved state and local governmental

employees not subject to the NLRA or to

Executive Order 11491. In any event,

Austin holds only that, where it is appli-

cable, federal labor policy imposes on

libel plaintiffs the standards of New York

Limes SS va ‘

P .

ne + ; ‘ + non? ‘

(1964), and 1a Ct staceme

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Cannot 5 € as ¢ Da

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stateme : e a é

ract concerning tne governne Cc a

ana investigatil : [r wt ote g

in the Anders ts

Cc sncer nr T ¥ ry Pe¢ Spee r 4 om

nigqnest _s a tne ase

campaigns the First Amendment

2 The language respondents

Austin does not represent the

holding, but is merely a quota

government official concerning

on regulation of labor campaigns.

- J) -

bar imposition of liability for knowing

false statements of fact. See, e€.g.,

Harte-Hanks Communications, Inc. Vv.

Connaughton, 109 S.Ct. 2678 (1989).

3. Respondents attempt to minimize

the significance of the Rhode Island

Supreme Court's ruling on the issue of

falsity by suggesting that it amounts to

little more than a factual finding. But

the facts -- as found by the properly

instructed jury -- were that respondents'

Statements would be reasonably understocd

by the average reader as stating a defama-

tory falsehood. The Rhode Island court's

holding was that, as a matter of law,

respondents' republication of Jack

Anderson's account of false allegations of

wrongdoing made in the course of

terminated investigations could not be

found false simply because the

investigations were ongoing when the

article was first written. As

~ i>

Gemonstrated in the Petition for

Certiorari, this holding is inconsistent

with settled principles of libel law, 3/

as well as with numerous decisions of

other state and federal courts.

Respondents attempt to distinguish

only two of those decisions, while

ignoring or raising trivial objections to

our characterizations of the rest. But

even where respondents attempt to address

directly the cases cited in the Petition,

their efforts to identify genuine distinc-

tions fall short. Respondents purport to

distinguish Lyons Vv. Policemen's

3/ Respondents contend that the

discussion in the Petition of the

doctrines of republication and privilege

is "irrelevant" and that these issues were

not raised below. The relevance of that

discussion, as set forth in the Petition,

is that the breadch of the lower court's

misunderstanding of the meaning of falsity

would render chese settled doctrines

useless and superfluous. The discussion

thus bears directly on the correctness of

the lower court's ruling on the issue of

falsity, which was of course fully

litigated and decided telow.

‘

- 9 -

Association of the District of Columbia,

Civil Action No. 74-441 (D.D.C. Feb. 20,

1976), on the basis of the failure of the

defendants in that case to- reprint

portions of the Anderson article that

contained Mr. Lyons' denial of the

charges. But this distinction is

irrelevant, since the court below did not

rely on the inclusion of this material in

holding the article to be truthful: under

the Rhode Island court's analysis, even

the truncated version published in

Policemen's Association would have

remained "truthful." Respondents) also

Suggest that Policemen's Association is

distinguishable because the defendants in

that case added to some of their reprints

the false statement that they were unaware

whether the investigations of Mr. Lyons

were ongoing. But the District Court in

the Policemen's Association case did not

rely on this disclaimer in finding the

=— =

reprints false; rather, it explicitly held

that other reprints distributed by the

defendants without the disclaimer were

equally or even more false, because they

suggested by omission that the investi-

gations definitely were ongoing. Finally,

respondents' statement that the

Policemen's Association reprint contained

a headline not composed by Jack Anderson

does not even amount to a factual distinc-

tion, since the same was true of respon-

dents' "EXPOSE" reprint.

Simiarly unavailing is respondents’

effort to distinguish Reilly v. Gillen,

176 N.J. Super. 321, 423 A.2d 311 (App.

Div. 1980), on the ground that it is not

clear that the 23-year-old article

reprinted in that case was dated, as was

the Anderson’. reprint distributed by

respondents. But there is also no basis

for concluding that the article

republished in Reilly was not dated, and

EO

—

the Reilly court's opinion nowhere

Suggests that its holding depended in any

way on whether the article was dated or

not. Nor did the court rely on the

trivial factual errors in the article as

the basis for holding that its republi-

cation was false once the charges it

described had been dropped. Even more

irrelevant is respondents' observation

that the Reilly reprint was distributed on

the eve of an election, whereas’ the

Anderson reprint was not. While these

facts might relate to the relative out-

rageousness of the misconduct of respon-

dents and the Reilly defendants, they have

no logical conrection to the issue of

whether the reprints distributed in each

case were false.

The Rhode Island court's'holding that

the publication or republication of stale.

incomplete and unfair accounts of

terminated investigations into discredited

- 12 -

allegations is "truthful" as long as the

allegations and investigations were in

fact pending at some time in the past is

inconsistent with the decisions in Reilly,

Policemen's Association, and the other

cases cited in the Petition: if the Rhode

Island court is correct, these decisions

are constitutionally defective. See also

Lewisohn v. Dial Press, Inc., 264 A.D.

370, 35 N.Y.S.2d 551 (1942) (distribution

of book libelous where post-publication

events render account of judicial pro-

ceedings "no longer true"). The conflict

between the Rhode Island court's ruling

and the decisions of other courts that

have recognized the falsity of efforts to

resurrect and spread outdated charges

renders review by certiorari appropriate

in this case.

4. Finally, respondents suggest that

there is no reason to review the Rhode

Island court's application of Bose in

- 13 -

light of this Court's recent decision in

Connaughton. Respondents understandably

make little effort to defend the Rhode

Island Supreme Court's de novo weighing of

the evidence with respect to the factual

issues of knowlege and falsity, as the

court's procedure was plainly at odds with

the deference commanded by Connaughton to

the jury's inferences and its resolution

of evidentiary contradictions. Instead,

respondents argue simply that the Rhode

Island court's error may be overlooked

because the Court has so recently visited

the issue of the scope of Bose review.

Were the Bose/Connaughton issue the

only one raised by the case, respondents'

argument might have some force. But the

Rhode Island Supreme Court's misapplica-

tion of Bose was intertwined with and

compounded the error in its ruling on the

question of falsity, which is, as we have

demonstrated, an issue of constituticnal

—) we

import with respect to which the Rhode

Island court's ruling has worked a signif-

icant distortion of libel principles and

created a conflict with the decisions of

other courts. Viewed in conjunction with

the falsity question, the court's misap-

plication of Bose presents an additional

reason for allowing the writ.

For the foregoing reasons, as well as

those set forth in the Petition itself,

the Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

THOMAS B. CARR

SCOTT L. NELSON

MILLER, CASSIDY, LARROCA

& LEWIN

2555 M Street, N.W.

Washington, D.C. 20037

Counsel for Petitioners.