# Reply Brief — Lyons v. Rhode Island Public Employees Council 94 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0122%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1989 - **Citation:** 493 U.S. 892 ## Text 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 Da fan nr nee erties PACKARD PRESS, 1025 Connecticu ( rrsel kK Sc [.. Nels MILLER, ¢ X% | | \A SSS M Street, N.W 5 Washins “hy oR 202) 29° 3 ()0) ( Ld7ISC ? rf 4 } NW Suite 905. Washinaton 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 _ ~ + ms > + > > ‘ Cannot 5 € as ¢ Da rc ~+ < ; } . vercic . Ne c . 4 2 i \ ‘ y De ‘ € t a r . > ~~ — bh LA A 4 I V4 e a et — . ~ ‘ + A apt N . Gk y Yew « t r . ney at Imnre x ¢ ~ ‘ c > Ss ae) “ ¢ , 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0122%3A3. Public record. Not legal advice.