Opposition Brief — Keogh v. Washington Post Co.

Supreme Court brief1967

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— NOV25 1966 J

- JOHN F. DAVIS, CLERK

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| Sipreme Gout of the Buited States

2 / cok. ke ant alee - Ocrosei TeRM, 1966

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Evcene J, Kroon, Petitioner, . 7:

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‘Tur. WasHiNcTox, Post CoMPaNny, Respondent. GRE y

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| - BRIEF OF RESPONDENT IN OPPOSITION TO < ao

‘... PETITION FOR. WRIT OF CERTIORARI ee aa

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: JAMES H, McGnormuin, = =—s«w ss

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ape Seen _ > Washington, -D. C. 20005,

e = Attorneys for Respondent.

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Covincton & BuRLING. © 5 2 eee as

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TABLE.OF CONTENTS |

‘an ; . °° Page

Constitutional a Sie Statutes, and Regilations Involved an =e

Counterstatement of the Case.....:..... Seeeeetws ouees si

- Reasons for Denying the Writ............ ‘ VenchRiabcaaae ee

Conclusion Epepake peelbaGhs ie tikas cetke cise wkwn sepeeeseess 22

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_ TABLE OF CITATIONS

Cases:

' Arscott v. ‘Washington Post Co; Civit No. 1025-61. (DDE.

I cs a,

Associated Press v. Walker, 87 Sup. Ct. 40, ost. granted. . 9

Clark v. Pearson, 248 F.Supp. 188 (D.D.C. 1968). ....:... oy

- Curtis Publishing Co. v. Butts, 87 Sup. Ct. 30, cert. granted.. . 9

Garrison v. Louisiana, 379 U.S. 64 (1964)...........000.. - 10,12

> Gilberg v. Goff, 21 App. Div. 2d 517, 251 N.Y.S.2d 823

(1964), affd.-mem., 15 N.Y. 2d. 1023, 260 N.YS. 2d 29

q RIED PS haces sou cauukseks thie bo 15

Gilligan v. King, 48 Mise. 2d. 212, 264 NY. S. 2d 309 (Sup.

Ct., Trial Term, N.Y. Cty: 1965)......... Le aS ae ee

| Henry v. Collins, 380 US. 356 (1965)... 9,12

Linn v. United Plant Guard Workers of America, Local 1th, ae

BOR We COs hi oiedas ces ty he ie 13

Mills v. Alabama, 384 U.S. 214 “(1966) pn eae xs 20 .

New York iar Co. v. Connor, No. a (5th Cir. Aug. 4,

Neiw York Times Co. v. Sailioen, 376 US. 254 (1064) ...666- 48 2

Pape v. Time, Inc.; 354 F.2d 558 (7th Cir. eS E: (14

Pauling v. Globe- Democrat Pub. Co., No. 522, agai Term,

. BOGS, curt, potition PONTING. 65 a. vice vince ckccckics chek. g

Pauling v. National, Review, Inc. ‘269 NYS. 2d 11 (1966)... 16

Rosenblatt v. Baer, 203 A-2d 773 (N.H. 1964), rev'd, —

US. %: WUE oi iis. sii tevin ast 13,17

| Schneph v. New York Post Carn:, 98 hate. Div. 2d 822, 250°

N.YS. 2d 775 (1965) (aff'd mem.., N.Y.LJ. Nov. 23, 1964) 45

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“Fed. R. Civ. P. 56.00.0000. 02 ecegeeeeveees

Cases—Continued :

Walker v, Courier Jeureal and Soule Tinie Co.; 246 F. be

Supp. 231 hes “WD. _ Ky. 1965), appeal pending, ‘No. 16,999

Statutes ant Legislative Mater isls: oN ee

aes 2 A 8, 15, 19, 20

Miccsllancous:. . eg pene

McCormick, leant § 155 (1964). oo ees sete neon 21

sila gmetad § 64 (3d ed: 1940).. ykecseuien:: ae

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OCTOBER TERM, ‘1966

No: 715

~ Evang J. Kroan, Petitioner,

Oe against

Tue WasHINncTon Post Company, Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

‘PETITION FOR WRIT OF CERTIORARI

*«

CONSTITUTIONAL PROVISIONS. STATUTES, AND

REGULATIONS INVOLVED

El kas ; 1 petition does not include the text of Rule 56.

of the Federal Rules of Civil Procedure, the applica-

tion of which is involved 1 in this case. In relevant aaah

that Rule reads: roe

“(b) For Defétiding oo: A ge against :

~ whom a claim, counter-claim, or cross-claim is as- . »

serted or a declaratory judgment is sought may, at

any, time, move with or gwithout. supporting affi-

davits for a summary judgment i his favor as to, aoe

all or any part thereof.

“*(ce) Motion and Proceedings Thereon. ‘The:

: “motion. shall be served at least: 10 days’ before the

0 * time fixed for the hearing. The adverse party prior ©

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sosttensianmnnemeentedrtihir—teiebiniatithieiihitenttiaeadaaatal a

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to the rom of Sicatitnas may serve e opposing affidavits.”

rogatories, and admissions on file, together with

the affidavits, if any, ‘show that there is no genuine

- issue as to any material fact and that the moving

_ . party is entitled to a judgment as a matter of law.

A summaiy judgment, interlocutory in character,

may be rendered on the issue of liability alone al-—

. though there is a genuine issue as to the amount of 3

ae : wr, ‘ err

* eo)

ee Fe Form of ‘Affidavits; Further Testimony

Defense Required. Supporting and opposing affi- ~

davits shall be made on personal knowledge, shall

. set forth such facts as would be admissible in evi- -

dence, and shall show affirmatively that the affiant

is competent to testify to the matters stated therein.

Sworn or certified copies of all papers or parts

_ thereof referred to in an affidavit shall be attached

thereto or served therewith. The court may permit ~

affidavits to be supplemented or opposed by deposi- © -

tions, answers to interrogatories, or further affi-

davits. When a motion-for summary judgment is

tfade and supported as provided in this rule, an

adverse party may not rest upon the mere allega-

tions or denials of his pleading, but his@esponse, by

affidavits or as otherwise provided ‘in this rule,

must set forth specific facts showing that there is.

a genuine issue for trial. If he does not so respond, .

‘+ summary judgment, if appropriate, shall be en-—

tered against him. Reds

a (£)° When. Affidavits Are Unavailable. Should

= appear from the affidavits of a party opposing

, 4

. The judgment sought shall be rendered forthwith |

if the pleadings, depositions; answers ‘to inter- ° |

- thé motion that he cannot for reasons stated present |

_by affidavit facts’ essential to justify his opposi-

_ tion, the court may refuse the application for

' judgment or may. order a continuance to permit —

affidavits to be obtained or depositions to be taken

or discovery, to be had or may make such other

_ order as is just.’’

*, + ates

: (As amended tie 27, tai. eff: Mar. 19, 1948; Tan, :

21, 1963, eff. July % 1963.)

COUNTERSTATEMENT OF THE CASE

Eugene z Keogh, petitioner herein,’ has been at: all-

. relevant times a member of the United States Congress

from the State of N ew York. On December 6, 1962,°

petitioner filed this action for libel in the: United .

States District Court for the District of Columbia...

- JA, pp. 6-12. He alleged the existence of. defamatory

_ JA, pp.-18-21; Petition, Appendix D, pp. 25-28a.

states that the ‘Attomey Generalof the United aioe 3

eigee _. then Robert Kennedy—was in the embarrassing posi- -

' + tion of having to ‘‘sit in judgment”’ on a close political -

ally, Congressman Keogh, following reports that the

Congressman was involved in the same judicial scandal

which a few months earlier had resulted in the con-,

viction and imprisonment of the Congressman’s brother

? » j

“+

—_ ae,

- gtatements-of and concérning him in‘ two ‘“‘edlumns’* .

. written by defendant Drew Pearson and published | ane

» about 600 newspapers including the ‘‘ Washington Post |

~ Times-Herald”’ published’by, respondent. _ - oe

The first article was published on December 12, 1961: |

.—a judge in the New York State Courts. ‘The article ~ aro

went on to ans that the’ ene General, who was

wa:

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described as ‘‘a good Attorney General,’” had an-

nounced that Congressman Keogh was not involved in

the bribery scandal. Additionally, the article discussed,

among other things, Congressman Keogh’s\voting rec-

ord on natural gas legislation and. aid to the Spanish |

Government and-his relationship with.a regintared, lob-

_ byist named Charles Patrick/Olark.

Petitioner’ s theory is that the artisle sinha: < an |

implication of wrongdoing. There is nothing inthe

article, however, which ‘‘could only. be interpreted’’ as .

_ charging that petitioner was involved in‘ the bribery

_ + scandal. Petition, p JB. é

The second article was published ; in Seladinn 1962, |

_ JA, pp. 21-25; Petition, Appendix D, pp. 28a-32a. It’ -

discussed President Kennedy’s - then proposed tax

legislation. In mentioning Congressman Keogh, among

others, the article stated that the Congressman had

made a career out of representing special interests and

had been urged by a White Hows c aibecaoen ak to

support tax reform. .

Petitioner’s complaint asks Pa $2,000, 000 in damai ges

- for the publication of these two articles. ~

In May and June, 1963, petitioner deposed defen dant :

~ Pearson. In October, 1964, petitioner took the deposi- - -’

tions of three of respondent’s employees. In December,

1964, respondent filed a motion for summary judgment

in the District Court. No motion was filed by defendant ©

. Pearson.

Respondent’ s miotion far summary judgment relied

or the rule announced by this Court in New Y ork Times . —

Co. v. Sullivan, 376 U.S, 254 (1964), that the constitu-

tional guarantees of freedom of speech prohibit a pub- *

- die official from recovering damages for a defamatory

falsehood i in the amen of clear and eheniing =~ :

| by the official that, the statement was made with “actual °

| -malice’’, which the Court. a? as nes or r reck-

less disregard of falsity.

Respondent, contended ‘ghee was” no genuine issue

of fact on thie” question. of actual ‘malice, relying upon

__ the various depositions teferred to above and upon two

affidavits filed with the motion, one by respondent’s

_ assistant managing editor,.Mr. Joseph Paull, and the:

other by Mr. James Russell Wiggins, the executive

vice-president and ‘editor. *JA, pp.‘ 94-98. The affi-

- davits affirm that neither’ of respondent’s officials .

‘responsible for. publication of the articles knew that

either article contained any false statement and that :

neither official had any evidence causing them to sus-

pect prior to publication that: the articles contained

any false statement. In his ‘deposition Mr. Paull testi-

fied that:he recalled reading the December 1961 column

~ for newsworthy content, for sense and accuracy, for’

libelous ‘content and-for style; and that after so read-.

ing the article he approved it for publication. He

could not specifically recall reading the February

column but may have done so. It.was Mr.: Paull’s ¥

' “policy, when reviewing articles for publication, to take

steps to ascertain the truthfulness of the statements -

whenever an article contained anything contrary to

Mr. Paull’s understanding of the facts. JA, p. 75.

Petitioner conceded that.the Times rule was appli-

cable but opposed the motion. for summary judgment

with: legal argument and his personal ‘affidavit. The

affidavit consisted of an attack upon defendant Pear-

son’s past, making a series of allegations that in 1955

Time Magazine published a story charging that a’ Pear-

son article of that era was untrue in part; that in 1944

_ respondent panes a retraction of a statement in or

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aS Pearson siiticla publishéd| at that time; that in: 1948

“Time asserted that: a.1944 survey of journalists had -.

7 pated Pearson the. tenth most accurate journalist ; that

Pearson was. criticized in a 1949 article-in the Saturday

Evening Post; that in 1961 Newsweek reported that ~

- ”. Pearson was not ‘“considered a ‘final source’ in Wash-

i. oe _’ ington’’; that Pearson. had been ‘attacked in a 1958

|’... article ina newspaper in Alaska ; that in 1956 Pearson .

a 3 ‘-. published certain statements in the Saturday Evening

| ) Post. about his controversies with various political

Be _° figures; and that. in 1948 Time asserted that Pearson -

+. ‘was not-asked for his proof by newspaper editors be-

cause they: knew he would defend libel cases for: them.

_ No copy of any document referred to in.the sesanhiae was

"attached thereto. JA, pp. 99-108. ‘

The District Court enied yespondent’s sepieani in

‘March, 1965 with a short memorandum and order. ~

Petition, Appendix. B. (pp. 2a-3a. On motion for re-

consideration, the District Judge filed ¢ ‘amore, lengthy

SPR Ces OS abs NE ets

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TESTA EEE OES

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- opinion and, pursuant to 28 U.S.C. § 1292(b),. certified

2 _ that his decision involved a controlling ‘question of law

Py as to which there was a substantial ground for: a dif-

| Fo ference of opinion and that an immediate appeal mejght °

materially advance . the ultimate termination en the z

litigation. Petition; Appendix C, pp. 4a-lla; 244 F.¢

Pere ‘Supp. 482. The “principal controlling ‘question “oi

iz tified by the ‘trial court, although ‘not articilated

$5 complete clarity, was whether‘ actual. malice outa he

| "| 4nferred from.the face of artiéles alone, assuming a

‘jury might find the articles contained serious allegations -y."

; . °°. of misconduct which respondent had jot verihed. ‘in-

dependently prior to ‘publication. A timely application

for leave ‘to appgel pursuant to-28 U.S.C. §1292(b) .

the District of Columbia Circuit in November, 1965.

Of the three depositions of respondent’s einployees

was a printed by the United States Court: of seipiite for .

which petitioner’ took on October 22, 1964; two were - -

completed on/that date and the. third deposition, that -

of Mr. Paull, was adjourned without date by peti- °~

tionet’s attorney pending: a ruling’ on the propriety of —

it - diréetions to the witness not to answer certain ques-

tions. JA; p. 92.. Although the transcript of the de-

position | was completed. shortly thereafter, no motion

to compel answers: was made until April 26, 1965, six

months after the deposition had been adjourned and .

one month after summary judgment had been denied. » ©

*-JA, pp. 3-4. At no time during any of the District Court

proceedings did petitioner’s attorney seek 'to resume ©

the deposition of Mr. Paull or to begin the deposition of

. Mr. Wiggins, which. petitioner had also scheduled for oy “

October 22, 1964. ‘At no time did petitioner ‘requestor. °°

seek a continuance pursuant to Rule 56(f) of the Fed-

eral Rules of - Civil Procedgire, in order to supplement. .

his affidavit; complete the Paull deposition or to con-

duct any other discovery. Petitioner’s motion to coni-

pel answers ‘of Mr.. ct fei iwi s argued in the District

Court -in August, 1965 ‘at which time _petitioner’s at-

* -torney was directed to. file a proposed order that would —

pe the motion in part and deny it in jpart. “‘Peti-

. tioner’s attorney did not file a proposed order until some

time’after’the oral argument i in the Cours of ress ae

" } April, 1966.

On Jhly 28, 1966 the Court of Appeals Grice its

decision reversing the District Court on the denial of

summary judgment. The Court of Appeals ‘found - fae

4°. —" in the article eee: which, in the taht of this aes

ey S

ae ad

. Court’s explanations of the’ Pimes rule, would cause.

the failure to make an independent verification of the —

articles. constitute evidence of actual malice: The. col-

umns in question were found to contain no more serious |

charges. than those in cases.in which this Court had ,

found no duty to investigate. The court below held

», that the seriousness of a charge, by itself, is insufficient .

_ to support a finding that publication occurred with

- knowledge or reckless disregard of zabaity. Petition,

- Appendix D, pp. 19a-20a. > — i

- The Court of Appeals further foun that sibel 1p

affidavit was not entitled. to. consideration because of - -

the failure to contply’ with Rule 56. One J udge went

on to state in the alternative that even if the affidavit _

had complied with the Rule; it would be ‘insufficient:to- .

raise a genuine issue of fact on ‘the questo’ of actual

‘ -malice.’ wr :

‘REASONS FOR DENYING. THE WRIT

“The decision’below is not in conflict with any decision °

of this Court. It is not*in conflict with any decision

cited in the gotten or known. to respondent’s counsel

The decision below sustaing a claim by ‘eingsandent

of constitutional protection under the First Amend-

ment for published criticism’ of a United States ‘Con-

gressman—one who is undeniably a public official.

Petitioner makes no claim of denial of constitutional

A ‘ ‘ r.) ¥

ae The Petition (p. 9) quotes a portion of this altconatie® statement: :

in & misleading manner so as to suggest erroneously that the quota-

tion is taken. from that portion of the opigion in which ‘two judges

malice. . eas ‘

ie: '

@ en ke peg oe

;

i 2? : of. Appeals rendered [since

New Yo or’ Times Co. v. Sullivan.

.-jeined to hold that the mere failure to investigate the article inde- .

: " pendently was not, mone alone,, sufficient evidence of actual

‘

: * ae ma eoteedes that for present purposes he is a

. a

. ‘.

‘a

‘‘public official” and 'that the articles of which he com-

plains are subject to the constitatrenal Tule announced

_ by this Court in the Times case.’

Stripped of its verbiage and: mischaracterizations of

_ the record, the principal point urged in the petition is

that this Court should reconsider the definition of actual

malice which it has.enunciated in five cases in the last

two Terms. Petitioner argues that: this Court defi;

ffi tion of actual malice goes too far in the dino ion of

restricting libel actions and too far in the direction. of.

promoting unfettered public debate. Petitioner calls —

upon this.Court to renounce the definition of actual

malice expressed in Times and the four eases that fol-

lowed, and to accépt as the constitutional definition of |

actual malice the common ‘law test which this. Court

explicitly rejected’ in He emry V. Collins, oe: U: g-956 |.

(1965). ;

' Petitioner concedes ‘that ‘there is abeolutaly. no evi-

dence to suggest that respondent’ S — knew or

~eontained - faise* aaa. He argues ne aa :

_ . that there is a duty to verify independently~‘‘serious

charges’’ before publication, because the ‘‘severe reper-

eyssidns regarding the reputation of the official’’ ‘if the

.’ % The issues in this case, therefore, are not. comparable to the issues

in three gther cases pending in this Court. Associated Press. v. °

- Walker, '87 Sup. Ct. 40, cert. granted (question whether Times rule

applies to comments on retired U.S. general) ; Curtis Pub. Co. v.. -

- Butts, 87°Sup. Ct. 30, cert. granted ‘(question whether Times rule.

applies to comment on Athletic Director of State University) ; :

Pauling v. Globe-Democrat Pub. Co., ‘No. 522, October Term, 1966

(certiorar. i #letition pending; question whether Times rule extends to.

voluntary rticipant in public debate).

’

einen are ulitrue would entitle a jury to infer the

existence of reckless disregard. Petitioner relies upon

a series of common law decisions antedating Times. in

- which’ state law, principally in New York, has been

interpreted by the lower courts as defining actual malice

as ‘“‘a. wanton. or reckless rasa ta to carseinai

rights.”’ : Petition, pp. 12-13% °° ;

he test announeed by this Court in Times is on z

3 reckless disregard-of reputation, but rather publication

of a defamatory falsehood a

‘with knowledge that it was false or ee reckless

disregard of whéther it was false or not.’ ”” 376 U. S.

vat 279-80. gue Ee aie

ee “reckless disregard’’ was explained

‘by this Court to mean publigation of such false state-

ments. with a ce degree of awareness of their prob-

able falsity... ..’’ Garrison v. Louisiana, 379 U. S.

- 64, 74 (1964). ie age A

In case after case, this Court has: held that thes mere

_ fact that a charge was berious—together with a failure

3In the court below, petitioner seated I in support ‘of the Teciaion— i FES

of the District Court that there was a duty to investigate independ-

‘ently serious charges since such charges . were ipso facto probably

false. Apparently that position is now abandoned. ‘As the Court

of Appeals pointed "hae

“the seriousness of a charge,.in itself, is not probative of reck- :

lessness with respect to the truth. The most serious charges,

which if anything we have the most reason to avoid deterring,

emay be made responsibly, with no hint of anything contrary

- to common knowledge . . . .” Petition, Appendix D, PP. 19a-

20a.

As this Court’ pointed out in Times, the Constitution ‘aseinhe all |

‘criticisms of:public officials, including those which. are “vehement,

- caustic, and sometimes unpleasantly sharp... . .” 376 US. at 270.

Sper

_ to verify independently the truth of that charge—-was

constitutionally insufficient evidence to raise a —

issue on the question of actual malice.

In Times a jury would have been entitled to infer ;

as perhaps a jury might be entitled’ to infer in this case,.

that the publication in question charged the public offi-

_phohed the listed sponsors of the advertisement to*de-

* ' termine whether they liad indorsed it nor did he.check .

the accuracy of the advertisement against the news

stories in the Times’ own files. . : anh

rae Despite the fact that news stories in ‘the Times’ own

~ files would have shown the advertisement to be false,

' this Court held that. the failure ‘to. discover the mis-

_ Statements .

‘fat most supports a ‘piulees of Peas arid is

‘ constitutionally insufficient to show the reckless-

ness that is required for a finding of actual malice. 9

| 876 U.S. at 287-88. |

P . a

“i

The evidence is no different ne It shows (1) a : i

publication that er be found to be defamatory,’

—

4 Indeed, the deni court in Times. ita the jury that the pub- |

\ "lication was libelous per se.

eee 5 For purposes of the motion for summary judgment jespondent

could not be found to contain. some defamatory innuendo. This is

. hot @ concession, as petitioner seems to assert, that as ‘a matter of

law the publication is defamatory. Unlike the Times case, there is ©

absolutely no-evidence in the present record that any news stories

in respondents’ own files would indicate any falsity in the columns in

question. While truth was not one of the defenses raised by the —

motion for summary — it is illuminating to note that in a

_ cial with criminal conduct.* Yet:the official responsible

for accepting the publication in Times neither tele-

\ ' did not raise the argument that as a matteg of law the publication

( 2) a failuse to verity independently the truth of that

-publication, and (3) each of the two newspaper officials.

|. - °. charged with reviewing the. articles’ before publication -—

fe _ “Khew nothing to ‘cause him to believe that anything

| in it was false.’”” 376 U.S. at 261. The absence of any -

. evidence beyond these facts shows that there is no

genuine issue of fact on the question of actual-malice.

. In Garrison v. Louisiana, supra, the publication-com- ~ paces

plained of was a charge that there were ‘“‘:.. . inter

esting questions about the racketeer influences on Saprcer

_.. ‘eight vacation-minded judges.’*? 379 US. at 66. This

“™ ~~ Court did not suggest, that there was a. higher duty of

; investigation due to the seriousness of this utterance.

» Tt held that the mere failure to have a ‘‘just’’ or ‘‘fair

; ’ reason’? for making the utterance was not constitu-

hally sufficient to show actual malice. Because error is -

, inevitable in free debate, ‘‘only those false statements

FN, _ made with the high degree of awareness of their prob-

able falsity demanded by New York Times may bestlie

subject of either civil gr. criminal sanctions. ” 319 U. S.

ot Tai... 2 yi

In Henry v. Collins, supra, the libelous statement

_ constituted the serious charge that-the defamed public: _

officials: were involved in a ‘‘diaboli¢ plot’’'to deprive . °

the defendant of his civil rights. Consistent with the

_ position of the petitioner in this case, the jury in Henry

_ v. Collins was charged | ce. . Yow may infer malice

companion case | the District Court said of the first of the two

colange sued upon. here: .

a * “Counsel for . the defendant - Pearson, Geena separately in

- detail each factual item contained in the article and con-

fee at vincingly demonstrated by reference to depositions, affidavits, :

Basa . ‘nd exhibits; that each individual statement was true and

“> abeurate.” Clark | v.: vam, 248 F. Supp. 188, 191 (D.D.C.

. from the falsity and libelous nature of the state-_

ment... . .”’? 380 U.S. at 357. This is precisely. the ._

rule petitioner seeks. This Court held that instruction.

to be in error under the Times rule because it. would

have permitted the jury to find actual malice merely

.in the intent to inflict_harm,- whereas Times ‘employs

_. the more strict’ test of calculated. use of "known false-

“hood. Ibid. — ‘

Rosenblatt v. Baer, 983 U.S. 75 (1966); is ins: only

case since Times in which this Court has suggested :

there might be sufficient evidence of actual malieé to

Taise a jury question.on that issue. The evidence did

not consist of a simple failuré’to verify independently .

a serious allegation. Rather the evidence consisted of

testimony showing that the author of ‘the alleged defa-

mation had been offered, in response to a request in

one defamatory publication, the opportunity to investi-

gate the ‘plaintiff’s records some twelve days’ before

- publishing a further defamation charging that the re-

quest had. not provoked any response: See Baer v.

Rosenblatt, 203 A.24 773, 776-48 (N. H. 1964), reversed,

' 383 U.S. 75 (1966).

In Linn v. United Plant Guard Warkers-of Amtrica> :

- Local 114, 383 U.S. 53 (1966), where this Court applied

the principle of- Times to the context of actions for

defamation attacking speech protected by the Labor om .

Att, the suggestion that “ grave’’ defamations ‘should ©

be treated differently from ‘‘ordinary”’ libels was dis-

missed in a footnote as an inappropriate ‘artificial .

- characterization.’”’ 383 U.S. at 65,-n. 7. Contrary to

- the claim of ‘petitioner that serious charges must. be |

independently verified before. publication becatise of |

_ the danger of possible i injury to. —— eens this

Court: said in Linn: - .: Ka

mucaeiend

“the most repulsive speech enjoys immunity pro-—

_ vided it ‘falls short of deliberate or Leones un-"

ciheoan ieee at 63. AS ae a

. The lower court Sbileteen relied upon ‘by petitioner 2?

“ave not in conflict- with fhe decision below. In Pape v.

Time, Inc.,.354 F.2d 558 (7th Cir. 1965), evidence of ©

actual malice was found whege the publisher consciously

and intentionally rewrote allegations summarized in a —

report of the Civil Rights Commission as though those

allegations were the Commission’s established conclu-

sions of fact. No such reckless rewriting by respondent

appears inthis récord., In Gilligan v. King, 48 Mise.

2d 212, 264 N.Y.S. 2d 309 (Sup. Ct., Trial Term, N.Y.

‘Cty. 1965), the trial court, applying state rules of

procedure, denied a motion to dismiss a complaint al-..

leging actual malice. The defendants did not contend

- or attempt to show that there was an absence of evi- -

dence of ‘actual malice. In the present case, the motion

for summary judgznent: pierced the pleading’and asked

_ whether there was any genuine issue of fact to be tried |

toa jury. |

The facts of record show that's wge of summary. , judg. |

- ment procedure in the present case ‘was entirely ap-

‘ propriate and well within the discretion of the lower. -

courts.. Petitioner had ample time for discovery. The

motion. for summary judgment was. made two years

after the suit began, more than one year after a four-

day deposition of defendant Pearson’ was completed,

and two months after several depositions of respond-.

ent’s employees were taken. Petitioner unfairly insinu-—

ates he was not allowed to complete the deposition ‘of Mr.

Paull and that.a fourth employee, Mr. Wiggins, was -

“not. i ee for éxamination. This is | sheer fantasy.

o ce

° ‘15:

< .

| Petitioner ’s attorney adjourned the Paull deposition

| indefinitely on October 22, 1964, and expressed no in- .

terest in taking the deposition of Mr. Wiggins whose

deposition was also scheduled for October 22, 1964, and

_ who was available at that time. No:effort was made to

complete the Paull deposition or to take Mr. Wiggins’

- deposition at any time until July, 1966, shortly before:

the Court of Appeals: announced its decision. No ef: | |

fort was miade to supplement discovery under the pro- E;

cedure outlined in Rule 56(f), Federal Rules of Civil _

- Procedure. After waiting six months before moving

to compel answers of Mr. Paull, petitioner waited an-

‘other ten months—until after the oral argument in.

the Court of Appeals—to file an order requested by the |

* District Court which only partially granted the motion

to compel answers. ..

Unless there is to be no end to litigation, ‘the use of

summary judgment procedures to test the’ merits of —

_ plaintiff’s case was perfectly appropriate. here.

The petition suggests that, on the meritsythe decision —

below is in conflict with the decisions of other courts

. applying the Times rule. The only conflict of other

- lower court decisions is with petitioner’s contentions,

not the ruling below. Numerous cases have correctly

interpreted the Times rule as precluding a genuine

issue of fact on actual malice when the only evidence

was’a failure to verify independently what some might

read as a serious charge. See Walker v. Courier-Jour- .

nal and Louisville Times Co., 246 F.Supp. 231.(C.W.D.

Ky. 1965), appeal pending, No. 16,999 (6th Cir.) ; Ars--

scott v. Washington Post Go., Civil Action No, 1025-61

(D.D.C. May 20, 1964) ; Gilberg v. Goffi, 21 App. Div.

2d 517, 251 N.Y.S. 2d 823 (1964), aff’d mem.,'15 N.Y.

2d 1023, 260 N.Y.S. 2d 29 (1965); Schneph v. New...

th may rely ons

“4

16 ~

‘York Post Corp. .. 23 App. Div. 2d '822, 259 N.Y.S. 2d

* 9 995. (1965) (aff'd, mem. N.Y.L.J. Nov. 23, 1964).

. @ In New York Times Co. v. Connor, No. 22362 (5th

. Cir. Aug. 4, 1966), the Court found no evident’ . actual

malice, explaining: Na

“All that, the pee reveals is that Sat cee

. relied on one or two persons for each statement

-and that some of. these. ‘people were actively in-

volved in the events which were thé subject of the _

article. This certainly does:not constitute ‘reckless

‘disregard for the truth.’ Although accuracy. and

objectivity in reporting are goals for which all

responsible news media strive, the protection of

- the First Amendment is not limited to statements

flect an objective picture of the reported events. -

While verification of the facts remains an im-

ie portant reporting standard, a reporter, without a

‘high degree of aware ss of their probable falsity,’

Fabia oe rhade by a single source .

even though they reflect only one side of the story

without fear of libel. prosecution by a. public of-

nee ’” Slip opinion, ig 21-22. oe ) |

“Aa Pauling v. National Revtew: Ine. 269 NY. Ss. 2a See

Ee era | 1966) the court held the Times privilege applicable

. %ge:

and dismissed. the > complaint at the close-of plaintiff's ’

ease: stating: ise 4

“Plaintiff argues that he: has dicta ‘reckless |

i | ‘disregard’ by the defendants of whether the article

“was false of not’. But all the plaintiff’s eviderice |

~ on this:phase of the ¢ase amounts to, giving it the —s_

+ iyi ‘most favorable inferences, is that defendants ws

~\. «in 1961, he had heard otipiees"

ve 17,

~ lied on anediaiti: sources, and that if ie had

- ghecked in a reasonable manner, they would have

- ascertained that their statements were false. -As-

. suming these facts. to be true, that is still not a

. showing of ‘reckles disregard of whether it was

- false or not’, in the New York Times ‘v. Sulliyan Si

sense.’ poe ) ;

Petitioner in pa oe not the decision blow but

rathe? the Times case itself and all the cases following

it. Petitioner argues. that unless serious charges have . '

been independently verified, a‘ jury is entitled. to infer ~ -

actual maliée,® and that without such:a rule newspapers "s

‘will employ ‘‘persons 6f invincible ignorance in posi- -

tions of responsibility’? who will never have’ a sus-.

icion of falsity and érefore will never ‘call for -

independent verification., Petition, p. J4.7 There

% -will be time eno for this Courtsto deal with such )

far-fetched hypothetical cases—should one ever aise.”

., in ‘the: meanwhile, it suffices to say that newspapers .

| “have concerns that lead them to read what i is offered. for

6 The arguthent contains a bootstrap clement wiles es

seeks %o slide over “by repeatedly characterizing the ‘article as

. vindictive, cruel, and defamatory. Just as in Rosenblatt’ v. ‘Baer,

' statement.” 383 U.S. at 79.- A jury would, under the rule-advocated |

by petitioner, first have to find that it accepts the unfavorable

interpretation of the publication and then further find that the

_\ .__ publisher’s failure to adopt the same interpretation and to. ray sy

~~ eonstituted actual malice. .

iat vas _ 1 The petition accuses Mr. Paull of being such a person by.in- -

sinuating that Mr. Paull testified that at the time of publication

he had never heard of Congressman Keogh. Petition, p. 14, n. *

- ‘When read in context, it is clear that all Mr. Paull was saying was"

that in 1964 atthe time of the deposition he could not rece whether,

*@*

x publteation i in eliiiion to the fear of soatiie libel suits.-

This Court may reasonably assume that any newspaper

employing invincibly ignorant editors would not stay

- in business: for. long. More importantly, the duty to

verify which petitioner seeks to impose would seriously

curtail the very ‘‘uninhibited, robust, and wide-open” | ,

debate the Times rule was intended to promote. -376

¢ a, U.S. at 270. As Judge Wright effectively stated below::

“Verification of syndicated. news reports. and

columns is.a time-consuming process, a factor es-

: pecially significant in the newspaper business ~

_. where news quickly goes stale, commentary rapidly

+ becomes irrelevant, and commercial opportunity

in the form of advertisements can easily be lost.

‘In many instances considerations of time and dis-

tance make verification impossible. Thus the news-" | .

" paper is confronted with the’choice of publication -

‘» without. verification or suppression. ... We —

‘should be hesitant to impose responsibilities upon .

~ newspapers which can be met only through costly

procedures or through self-censorship designed

to avoid the: risks, of publishing controversial mate- 3

- Pial.. ... Pearson and‘his fellow columnists seek

and often uncover. the sensational, relying upon

educated instinct, wide knowledge and confidential

tips. Verification would be certain to dry up much

of the stream of information that finds it way

"into their hands. Whether or not this‘would please

‘ , anumber of us is irrelevant. What matters is that

a rule requiring verification in the absence of

evidence that the publisher had good reason to.

- suspect falsity would’ curtail. substantially a pro-

tected form of speech.’’ Petition, Appendix D,

_ pp. 24a-25a. (fos 4 |

nod

e , ° > 9 °

“+

|) OF . / spe e ‘ 19

. O a lo . .

| “Awareness of the basis premise of the: Tignes ision,

_and ofthe’ interpretation and Seyeral explanatio of

that decision by: this Court, 194 )the ‘court bélow \to

_” order semery judgment after firiding t st-no.genuine

issue of existed. The.court was min also o

this Court’s admonitions regarding ‘the care to be exer- \

cised in employing summary judgment (see Petition,

Appendix D, pp. 14a-16a) and made its-decision only

. after a careful review of the facts and law. There is mo/-.

% sound reason + for disturbing that decision.

* ¥ ‘e ee

hi addition to his ietnclvat contention tha¢4 e Times ae

| definition’ of actual malice should. be modified, ‘peti-

tioner argues that:a genuine issue of fact was raised

by tke affidavit he filed in the District Court.

The District. Court: placed no reliance on this affidavit

’ . in its final-opinion. If it had relied upon the affidavit,

it surely would not have certified as a controlling: ques-

tion of law the issue whether the article on. its face

' eould be taken as evidence of malice..The Court of —

Appeals held that the affidavit was inadmissible because. ti

it did not conform to the requirements of Rule 56(e)

_ in that (1) it was not based upon personal knowledge, .

. . (2) it did not set forth facts admissible in evidence and

(3) there were no sworn or spar copies of any. of —

i® Another “reason” offered by pétitioner for ei the Times

standard is that there should be a higher: duty to investigate te:

'» works of a syndicated columnist because under local law the news-

_ paper is not held, vicariously liable. for the‘ columnist’s.’ actions. ‘It

_,Suffices to note that no higher duty was imposed: ih Times ‘where

‘an advertiser was invo ved and as whom the newnpener would have

-- No vicarious responsibility.

4 Coes the various documeits referred, b in tie aidavit at-

|. *~.,; tathed thereto. ° ’

= Pees. - As Judge McGowan correctly ‘noted, tad ruling by

i '- ‘the Court of Appeals tm the affidavit was not entitled |

; ee -- to consideration roomyrerbenr, to rule on the further.

question of whether, under the Times principle, the

affidavit gave rise toa genuine issue of fact., Accord:

‘ingly, unless the ruling on the affidavit by the ‘Court ae

- Appeals iferroneous, which it clearly is not, this Court

. has no occasion to resolve the question whether a few

. unproved charges against a columnist, some as many

a | . * ag 20 years old and none of which were shown to.-be. |

BE te withimthe knowledge of respondent’s officers atthe time __ i

_ \-*% +. of publieation of the coluffins in question, raise a genu- |

. ine issue 6f fact on the question of actual maliee® . *

Clearly ‘there is. no occasion. to review the question —s_—-

of .whether the affidavit violates Rule 56(e). Peti---—. 5

. _ tioner hag offered no excuse for the failure to comply

- ° ~. with the rule. The insistence of the District Courtand. | / |

. raises an issue this-Court ought to review.-And unless. ~

|. that question is reviewed, there is simply no occasion =

<> to proceed further. . ~ ; ; axial mele

iy . With:regard to. the failure to somiisiyi in otbar ebplicke .

‘with Rule 56(e), petitioner's argues that ) the cena

ee ee en ae

olf this pn were to be reached, the reasoning expressed in

f ; ae a Judge’ Wright’s altern&tive. statement ‘is .qurely most persuasive. ae :

«..° > When all is said and done, petitionerjs argument is simply that it is ne

/ \> + +» sper sé:evidence of actual malice to publish anything by Drew-Rear- yee

“s .\ * ,.| , som without independent verification, the assertéd reasdn being that -

\: ‘ . . Pearson is controversial: ‘Surely’ Pearson’s controversies, some 15. o&

\ __in the affidavit out of a journalistic career of over 30 years aid 0

“\, _. 11,000 columns, cannot deprive his statements of the same consti- * a

eae ty Fae “tutional protection that i8 aecordéd more ae columnists. Ct. wo ae

Mills v. Alabama, 384 U.S. 214, 218-19 cease ee | ee :

in, the affidavit was admissible as evidence of reputation :

and? (2). the supposed. statements:of Pearson quoted.

in the affidavit were admissible as admissions by a |

party. These contentions raise questions regarding the ~

local Distriet of Columbia, law of evidence, and henée »

do not call for this Court’ time. They are, morever, |

- completely devoid of mer .. The alleged admissions of

defendant Pearson would not be‘admissible against the

_. Post, The asserted specific acts of supposed inaccuracy

pier «in remote years in Pearson’s past—involving matters |

‘wholly unrelated to the present case—aire not admissible

\ A

evidence. F.g.,1 Wigmore, Evidence § 64 (3d ed. 1940); ~

‘McCormick, Evidence, $155 (1954).

Petitioner makes a scattering of. other. arguments,

together with numeroys unfair characterigations, of the

~ ‘recordsthat approach’ serious misstatements of the’

"facts." * No. extended reply seems } necessary. :

10 To cite but one wach i in arguing that Serena had no.

* “standard at all” for deciding whether to publish syndicated columns,

-, # petitioner cites certain testimony by one employee who petitioner’s

_ attorney well knows had no’ editorial responsibility—that respoysi-_

« bility being ‘vested in Messrs. Wiggins and Paull. . See Petition, -

. Pp 18, n. °. See J.A:, p. 60, 75, 95, 97. The employee quoted out

of context by petitioner further testified that while his delegated

_ function was not reading for accuracy, he would not pass a ‘story

--~ ,._ .Which contained anything he recognized to be untrue, See J.A.,.p. 70.

CONCLUSION.

‘The Petition should be denied. |

~ Respectfully submitted, 3

| JaMEs H. McGuora.in,

| MicHasn S. Horne,

* 701 Union Trust "Building,

_ Washington, D. C.:20005, -

« Of Counsel, :

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/ ’

6 —T for Respondent.

. Covinaton & BuRLING.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.