Petition for Writ of Certiorari — Time, Inc. v. Wasserman

APR 23 1970

TONITE, DAVIS, CLERE

In THE

Supreme Court of the United States

October Term, 1969

a TIME, INC,,

a3; Petitioner,

ei

ie JACK WASSERMAN,

a Respondent.

se

alt PETITION FOR A WRIT OF CERTIORARI TO THE

Heir UNITED STATES COURT OF APPEALS FOR THE

rt DISTRICT OF COLUMBIA CIRCUIT

ym Harotp R. MEpINA, Jr.,

i i One Chase Manhattan Plaza,

au New York, N. Y. 10005

E¢bss) Attorney for Petitioner.

Joun H. PICKERING, ~

Deine Dennis M. FLANNERY,

2% Witmer, CUTLER & PICKERING,

bi Farragut Building,

ei 900—17th Street, N. W.,

thy Washington, D. C. 20006

ae W. Dennis Cross,

¥ CravaATH, SWAINE & Moore,

ais One Chase Manhattan Plaza,

rt: New York, N. Y. 10005

x, Of Counsel.

April 22, 1970

BLEED THROUGH POOR COPY

INDEX

PAGE

PETITION FOR WRIT OF CERTIORARI .........----- 1

OPINION AND ORDERS BELOW ......-.--+-+++e+e05 1

JURISDICTION «00+ ee eeeeeeee reese sere eeeeeeees 2

QUESTIONS PRESENTED ......++++-seeeeereereeees 2

CoNSTITUTIONAL PROVISIONS | ere ey et 2

STATEMENT «00. +e eee ec cece reece tee eeereeeeees 3

FatvOdUctiOn 2... cece cc ccccscecsecce aaweuwe 3

Ragano’s Companion Action .......--+.-++++++5 4

ee TE oabSvivcvccsesve dsc cnsvceess 5

(a) Respondent ........-.sseeeeeeeeeeeeees 5

(b) The La Stella arrest of September 22,1966 6

(c) The La Stella luncheon of September 30,1966 6

(d) Petitioner’s editorial process with respect to

the publication ........--.eeeeeeeeeeees 8

REASONS FOR GRANTING THE WRIT ........---++-- 11

1. Importance of the “Deliberate Omission” Issue 11

2. The Failure to Follow New York Times ...... 13

(a) Knowledge of falsity by reason of knowl-

edge of omission ........+--+-++eeeeee 14

(b) The Circuit Court’s unsound journalistic

judgment ........... ee ee ence eee eeeee 18

(c) The Circuit Court’s focus upon a single iso-

lated fact in disregard of the entire record,

in conflict with decisions of this Court and

ME. 2. oC. . ease ewik sees >< e 20

3. The Gravely “Chilling Effect” of this Litigation

CII ios cece cc wsvcccvcreseeccresossees

“Phe

APPENDIx A

District Court Order Granting Motion for Summary —

POON io isisevnvisvestissvass teen Al

APPENDIx B

Opinion and Order of the Circuit Court Reversing

the District Court’s Judgment ................ BI

APPENDIx C -»

Article and Photograph upon which Complaint is

Based ,

PREECE eee Stee peudenet bev bebe peEC TE Cl

APPENDIx D

cme Pee Wletest Tet... ss. oh case Di

APPENDIx E

The Actual Malice Standard ................... El

APPENDIx F

The Necessity for Summary Judgment .......... Fl

TABLE OF AUTHORITIES

CAsEs:

Beckley Newspapers Corp. v. Hanks, 389 U. S. 81

CPE ose ae bi chee idiee sy cakes cecal 13, 22

Bon Air Hotel, Inc. v. Time, Inc., 295 F. Supp. 704

OW: Sie ls BNOPD oo 6 cs oc kes eset 13, 23

Cerrito v. Time, Inc., 302 F. Supp. 1071 (N. D. Cal.

MON hans Kade 4 Ne ais GAA EOE Dien hee 13

Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967) 13

Dombrowski v. Pfister, 389 U. S. 479 (1965) ...... 25

Garrison v. Louisiana, 329 U. S. 64 (1964) ...... 13, 15

BLEEOQ THROUGH POOR COPY

iii

PAGE

Hurley v. Northwest Publications, Inc., 273 F. Supp.

967 (D. Minn. 1967), aff’d on opinion below, 398

F, 2d 346 (8th Cir. 1968) .......ccccesecees 13, 23

Klahr v. Winterble, 4 Ariz. App. 158, 418 P. 2d 404

(1966) vcsccccecccsssccavsccersocccccees 13, 23

New-Journal Co. v. Gallagher, 233 A. 2d 166 (Del.

Sg Re RE P Oa EP roe eae e eee Lee LE

New York Times Co. v. Connor, 365 F. 2d 567 (Sth

OO RRS eae pene

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

OME) Go casyoki coseacs 2, 11, 13, 14, 15, 16, 20, 21

Pape v. Time, Inc., 318 F. 2d 652 (7th Cir. 1963),

354 F. 2d 558 (7th Cir. 1965), 294 F. Supp. 1087

(N. D. Ill), rev'd, 419 F. 2d 980 (7th Cir.

3 Ea De Pa ee reer ECL Sy OE 12, 14, 15, 20

Ragano v. Time, Inc., 302 F. Supp. 1005 (M. D. Fila.

NY <4 icKe 0 BESO ES KR SEE E HET OO OO 4-5, 12, 14, 24

Rosenblatt v. Baer, 383 U. S. 75 (1966) ........ 13

Rosenbloom v. Metromedia, Inc., 415 F. 2d 892 (3d

Cir. 1969), cert. granted, 38 U. S. L. W. 3309

A: Se Oy BAF) eo eek wi See hs bs we cine 13

Ryan v. Dionne, 28 Conn. Sup. 35, 248 A. 2d 583

EEE ees cc hehe wesc sUnenvares cctv benss sss 13

St. Amant v. Thompson, 390 U. S. 727 (1968) ..13, 21

Sellers v. Time, Inc., 299 F. Supp. 582 (E. D. Pa.

LVR e CUR WANS 6 WS KER TERR SMO oe KES SN 13, 23

Tagawa v. Maui Publishing Co., 448 P. 2d 337

(Hawaii 1968), cert. denied, 396 U. S. 822

os SSSR Spee, Ree para ae rea eva eae 13, 23

Thompson v. Evening Star Newspaper Co., 394 F.

CREE ep ebay howe eek eeeeuee sie vein a's 13, 23

Time, Inc. v. Hill, 385 U. S. 374 (1967) .......... 13

Time, Inc. v. McLaney, 406 F. 2d 565 (5th Cir.

1969), cert. denied, 395 U. S. 922 (1969) ..... 13, 22

PAGE

United Medical Laboratories, Inc. v. C olumbia

Broadcasting System, Inc., 404 F. 2d 706 (9th

Cir. 1968), cert. denied, 394 U. S. 921 (1969) .13 23

Walker v. Pulitzer Pub. Co., 394 F. 2d 800 (8th Cir,

vi ae AS ARE RIE Re na i: 13

Washington Post Co. v. Keogh, 365 F. 2d 965

(1966), cert. denied, 385 U.S. 1011 C3907) 5

UNITED StaTEs ConsTITUTION:

NE Bech e iin iens on bessevesv'sceudens 2,3

ios sn-suemoraahen, taht. LTTE 2,3

UNItTEp STATEs STATUTES:

28 U.S. C. § 1254(1)

28 U. S. C § 1292(b)

BLEED THROUGH POOR COPY

In THE

Supreme Court of the United States

October Term, 1969

No.

TIME, INC.,

Petitioner,

Vv.

Jack WASSERMAN,

Respondent.

ey.

vv

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioner seeks a writ of certiorari to the United States

Court of Appeals for the District of Columbia Circuit from

the judgment of that Court, reversing an order of the

United States District Court for the District of Columbia,

which granted petitioner’s motion for summary judgment.

OPINION AND ORDERS BELOW

The order of the District Court granting summary judg-

ment is attached hereto as Appendix A. No opinion was

rendered by the District Court. The opinion and judgment

of the Court of Appeals for the District of Columbia Cir-

2

cuit reversing the District Court’s judgment has not been

officially reported but is attached hereto as Appendix B.

JURISDICTION

The judgment of the Court of Appeals reversing the

District Court’s order granting summary judgment was

entered March 3, 1970. The jurisdiction of this Court is

invoked under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED

1. Does the deliberate and good faith omission of a

known fact which the publisher believed, and still believes,

to be irrelevant constitute knowledge of falsity or serious

doubts as to truth within the meaning of New York Times

v. Sullivan, 376 U. S. 254 (1964) ?

2. Was the District Court correct in granting summary

judgment to defendant and dismissing this action where the

uncontradicted evidence showed that:

(a) the article in question dealt with public figures

and matters of public interest ; and

(b) the article was published following a complete

factual investigation in the good faith belief that it was

true?

3. Can the Court of Appeals substitute its own editorial

judgment for that of responsible journalists ?

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provisions involved are the First and

Fourteenth Amendments, Unitec States Constitution,

Amendment I, Amendment XIV, § 1.

BLEED THROUGH POOR COPY

3

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the Government for a re-

dress of grievances.” U. S. Const., amend. I.

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State where-

in they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person with-

in its jurisdiction the equal protection of the laws.”

U. S. Const., amend. XIV, § 1.

STATEMENT

Introduction

This is a “deliberate omission” libel case in which the

respondent, Wasserman, complains of the decision of peti-

tioner, reached in good faith, not to identify Wasserman as

an attorney when picturing him with his mobster clients

in a photograph accompanying an article dealing with the

activities of those mobsters.

The article, published in Time Magazine for October

7, 1966, is reproduced in Appendix C. It described the

arrest of 13 Cosa Nostra leaders at the La Stella Restau-

rant in Queens; their refusal to testify before a Queens

County Grand Jury; and a second luncheon at La Stella

at which the participants (representing and playing the

part of the 13 originally arrested) demonstrated their con-

tempt and disdain for law enforcement. Wasserman was

4

not mentioned in the article, nor was Frank Ragano, an.

other attorney. Accompanying the article was a photo.

graph of the second luncheon in which Wasserman anq

Ragano were pictured with their clients but were not iden.

tified either by name or as attorneys.

Wasserman then brought the instant action. After the

depositions of Wasserman and of petitioner’s employees

who wrote, checked and edited the article had been taken,

petitioner moved for summary judgment on the basis of

those depositions and accompanying exhibits.* Wasserman

filed a cross motion. After hearing, the District Court

(Robinson, J.) without opinion entered an order on May

29, 1969, granting summary judgment to petitioner and

denying Wasserman’s cross motion. On March 3, 1970,

the Court of Appeals reversed and ordered a trial of al]

issues.

Ragano’s Companion Action

The other attorney pictured in the photograph accom-

panying the article, Frank Ragano, also sued for libel, but

in the Middle District of Florida. In that case it was stip-

ulated that the depositions taken in the instant Wasserman

case should be admitted for all purposes, and Ragano’s de-

position was also taken. On the basis of those depositions

petitioner moved for summary judgment against Ragano,

That motion was denied, without opinion, by Chief Judge

Lieb on December 18, 1968, and a motion for reconsider-

ation was likewise denied by him, without opinion, on Jan-

uary 27, 1969.

*In this petition the deposition of Wasserman is referred to as

“W. .", the depositions of petitioner’s employees are referred to

as “T. s.”, and the appendix printed below which is included in

the record certified to this Court is referred to as “App.”. The exhib-

its to the depositions are included in the original record below which

has also been transmitted to this Court.

BLEED THROUGH POOR COPY

— °

5

After Judge Robinson granted petitioner’s motion for

summary judgment in the instant case, petitioner renewed

its motion for summary judgment in the Ragano case. That

motion was denied by Judge Krentzman on August 8, 1969,

with an opinion (302 F. Supp. 1005). Judge Krentzman,

however, recognized that there were “substantial grounds

for difference of opinion” and certified the case for inter-

jocutory appeal pursuant to 28 U. S. C. § 1292(b). Leave

to appeal was granted by the United States Court of Appeals

for the Fifth Circuit. The Ragano case is now pending in

that Court, having been argued on April 8, 1970.

Relevant Facts

The uncontradicted facts of this case, on which peti-

tioner relies for summary judgment, can be most readily

reviewed in the perspective of respondent's background,

the original arrest, the second La Stella luncheon and peti-

tioner’s editorial process.

(a) Respondent.

The respondent, Jack Wasserman, is an attorney prac-

ticing in the District of Columbia ; Carlos Marcello is his

client (W. Dep., App. 183). Marcello has long had the

reputation of a leading hoodlum and the Mafia or Cosa

Nostra leader in New Orleans.* Wasserman first repre-

*For example, in 1961, the New York Times called Marcello

the “alleged rackets king in New Orleans” (W. Dep., App. 193, ex.

6), and the Washington Post has called Marcello “one of the leaders

of the Mafia” (W. ., App. 194, ex. 7). Both Senators Kefauver

and McClellan have denounced Marcello for his criminal activities

tal Dep., App. 187, 191), and United States District Judge Ben

wkins has called Marcello “a racketeer of the first order who

ag tA a sympathy from anybody” (W. Dep., App. 199-201,

ex. ;

6

sented Marcello in 1955 in litigation in this Court concern.

ing Marcello’s immigration status (W. Dep., App. 183),

Since 1955, he has become more and more closely associated

with Marcello and he is now widely referred to as Mar-

cello’s “chief attorney”, a description Wasserman does not

dispute (W. Dep., App. 205).

(b) The La Stella arrest of September 22, 1966,

On September 22, 1966, the New York City Police De-

partment raided a meeting and arrested 13 men at the La

Stella Restaurant in Queens, New York. The Chief Ip-

spector of the New York City Police Department reported

that the 13 men were “Mafia leaders” and that the meeting

was “a little Apalachin” (W. Dep., exs. 97-104). Carlos

Marcello attended the meeting. Marcello and the other men

arrested were held as material witnesses and called to testi-

fy before a special Grand Jury in Queens County (W. Dep.,

exs. 105-126). The incident was widely publicized in the

press, as appears from the exhibits cited.

Marcello called his “chief attorney”, Jack Wasserman.

Wasserman advised Marcello and other clients of their

constitutional rights. When they first appeared before the

Grand Jury they invoked the First, Fourth, Fifth, Eighth,

and Fourteenth Amendments in declining to testify, al-

though subsequently they did testify (W. Dep., App. 245-

46, 248).

(ce) The La Stella luncheon of September 30, 1966.

On September 30, 1966, during a noon break in the

Grand Jury proceedings, Wasserman, accompanied by his

clients, including Carlos Marcello, and another attorney,

Frank Ragano, accompanied by his client, Santo Trafi-

BLEED THROUGH POOR COPY

Se

7

cante,* deliberately and openly and with clear invitation

to newspaper reporters, repeated the luncheon at La Stella

in what the daily press appropriately interpreted to be a

staged performance and an obvious gesture at law en-

forcement agencies to show that law enforcement could not

touch that criminal element.

The incident received front-page publicity in the New

York papers (W. Dep., exs. 131-133, 135, 136). The New

York Times, on October 1, 1966, concluded that the lunch-

eon was “to show their disdain for the proceedings” (T.

Deps., ex. 2, App. 175-7). The New York Daily News, on

the same date, commented on “the general gaiety that per-

vaded the restaurant”, and observed that the “move [was]

obviously staged” and “seeemed to be rehearse ” (T. Deps.,

ex. 2, App. 172-4). Both newspapers quoted participants

in the luncheon as saying “Why don’t they arrest us . . ° a

On the day following the luncheon, Wasserman ex-

pressed his appreciation to the reporters for their coverage

of the incident.

“Q. Didn’t you and Ragano say to the reporters,

‘Thank you very much’?

“A. I may well have told the reporters that I

considered the news report accurately worded, or

something like that, yes.

“Q. And didn’t you and Mr. Ragano tell Greene

and Kessler that the stories were great and the re-

porters had kept their word?

“A J don’t recall anything about saying keep-

ing their word, but it may have been said.

*Trafficante has long been reputed as the Cosa Nostra leader

in Miami. In his deposition in his case Ragano stated that he had

been a social friend of and attorney for Trafficante since 1958, that

Trafficante was a reputed Cosa Nostra or Mafia leader, that Traffi-

cante had atttended the notorious Aqcatin ne, and that Traffi-

cante has been under constant surveillance by the FBI.

8

“I mean, I cannot recall the specific

that was utilized on October 1 in an offhand cop.

versation with newspaper reporters the following

day.

“Q. But the substance of what I have stated is

accurate insofar as you can recall?

“A. I have no basis for denying the accuracy of

what you state.” (W. Dep., App. 270)

(d) Petitioner’s editorial process with respect to the

publication.

The publication upon which this suit is based was re

searched and checked for accuracy in its final form by

Researcher Serena Rachels, written by Writer Timothy

James, edited by Editor George Daniels, and, after com-

plaint and demand for retraction was received, reviewed by

Editorial Counsel John Dowd and Managing Editor Otto

Fuerbringer. As previously stated, the depositions of James,

Daniels, Rachels, and Dowd were taken in this case. These

depositions clearly describe the editorial process followed

by petitioner in connection with the challenged publication,

The newspaper articles describing the September 30

luncheon appeared in the morning papers of Saturday,

October 1. Researcher Rachels was asked to compile a

file from which a story concerning the incident might be

written (T. Deps., App. 53). She collected a file of news-

paper coverage of the original La Stella luncheon, at which

the 13 Costa Nostra leaders were arrested, and of the Sep-

tember 30 luncheon (T. Deps., App. 55). The coverage

of the first luncheon went into detail respecting the notorious

criminal careers of the 13 leaders present. The stories in

the New York Times and the Daily News of October 1

were remarkably similar in their description of the second

luncheon. This editorial file has been produced, and appears

at App. 167-178. In her capacity as researcher, Miss Rachels

BLEED THROUGH POOR COPY

ee es

9

also reviewed the biographical data in the Time files con-

cerning the 13 hoodlums who attended the first luncheon

(T. Deps., App. 53-4).

Mr. James read the file before writing the article and

Mr. Daniels read the file before editing it (T. Deps., App.

99, 114). When the article was in final form it was sent

to Miss Rachels for a review of its accuracy (T. Deps.,

App. 57).

When a letter dated October 6, 1965, was received from

Wasserman complaining about the article, the file was re-

viewed by Editorial Counsel Dowd and by Managing Editor

Fuerbringer (T. Deps., App. 143, 144-7). Copies of the

resulting correspondence between Wasserman and petitioner

appear at App. 10-13.

James, Daniels, and Rachels testified unequivocally as

to their belief in the truth of the article at the time it was

published (T. Deps., App. 69, 101, 125). They also testi-

fed that they believed that the file compiled by Miss Rachels

was a sufficient basis upon which to write the article (T.

Deps., App. 68, 94-5, 120). During the deposition Daniels

was asked the basis of his belief. His answer was unequi-

vocal :

“Q. I take it you did no investigation of the facts

independently.

“A. No. It seemed clear enough to me.”

- . +

“Q. Do you consider the New York Daily News

a good factual source of information?

“A Yes, 1 do. They are generally quite good on

things like that. So is the New York Times. The

information is virtually identical in the two stories.”

(T. Deps., App. 119-20, 131) (Emphasis supplied. )

Dowd also testified to his and Fuerbringer’s belief in

the truth of the article at the time it was reviewed (T. Deps.,

10

App. 147, 159). All who testified stated that they con-

strued the purpose of the second La Stella luncheon asa

publicity stunt; that, in their opinion, the second luncheon

was intended as a re-creation of the first luncheon and its

Purpose was to show defiance of law enforcement au-

thorities ; and that Wasserman participated in the re-creation

in a representative capacity as one of the original 13 Cosa

Nostra leaders, whom those attending the second luncheon

obviously were portraying (T. Deps., App. 72-4, 79, 99,

107, 122, 127-8, 144-7).

There is no dispute that all concerned knew Wasserman

was an attorney (T. Deps.; App. 66-7, 92, 120, 141),

The testimony is uncontradicted, however, that all con-

cerned likewise believed that Wasserman was not acting as

an attorney when he participated in the luncheon (T. Deps.,

App. 79, 99, 122, 146). He was, rather, playing the part

of one of the arrested Cosa Nostra leaders. That was the

basis of the editorial decision, challenged in this case, that

no reference be made to Wasserman’s status as an attorney.

The decision is best exemplified by the testimony of Editor

Daniels, as follows:

“Q. And there are seven people there?

“A. I am afraid that Mr. Wasserman and Mr.

Ragano there are representing the entire group.

“Q. Is it your belief that by representing the

entire group they become members of the Cosa

Nostra?

“A. Journalistically speaking, it’s the same

thing, I believe.

“Q. And is that the reason why you did not

identify Mr. Wasserman as an attorney?

“A. There was no need to, in my judgment.

“Q. Because, as you stated, journalistically

speaking, they were all Cosa Nostra members?

BLEED THROUGH POOR COPY

—,

11

“A. Journalistically speaking, they all went to

this for one simple purpose, which was to gain

publicity, in my judgment, and to defy the law.

“Q. And that is the reason why you did not

identify Mr. Wasserman as an attorney?

“A. That is correct.

“Q. Because, in your judgment, they were there

to gain publicity?

“A. And to defy the law. Correct.” (T. Deps.,

App. 127-8)

REASONS FOR GRANTING THE WRIT

This case presents an important question of First

Amendment rights—the right of a publisher to constitu-

tional protection for deliberate decisions to omit facts be-

cause in the publisher’s good faith judgment such facts

are irrelevant or would give a false impression—which

was decided below in conflict with the holdings of this

Court in New York Times v. Sullivan, 376 U. S. 254

(1964), and subsequent cases.

1. The importance of the “deliberate omission”’ issue.

Application throughout the country of the new con-

stitutional doctrines stemming from: New York Times has

proceeded smoothly on the whole. Those doctrines include:

putting the constitutional burden upon a libel plaintiff to

prove “with convincing clarity” “actual knowledge of fal-

sity’ or “serious doubts as to truth”, applying that test

to articles dealing with subject matters of public interest,

and granting summary judgment to a responsible journalist

who reveals his good faith editorial process to the Court

—~y

(see discussion, infra). For the most part those cases, how-

ever, have dealt with affirmative statements of fact or

opinion. More difficulty has been encountered in application

of those principles in cases where there has been a bona

fide editorial decision of omission-—for convenience, we

shall call those cases the “deliberate omission” cases, In

those cases some courts have tended to substitute their

own editorial judgment for that of a responsible journalist,

in direct contravention of a basic tenet of the First

Amendment.

There are three of those cases now in the Federal

courts and involving petitioner Time, Inc. In the first,

Pape v. Time, the United States District Court for the

Northern District of Illinois (Robson, J.) dismissed the

action at the close of a trial [294 F. Supp. 1087 (1969) ]

but the Seventh Circuit reversed and stated that a j

issue had been created [419 F. 2d 980 (1969) ]. A petition

for certiorari is presently pending in this Court, No. 1309.

The second is the instant Wasserman case. The third is

the companion Ragano case, now pending before the Fifth

Circuit. In these three cases, two district courts have up-

held petitioner’s right to constitutional protection, and two

Courts of Appeal and one district court have denied it.

The questions involved are important, novel and in need

of authoritative resolution by this Court. If the decision

below is allowed to stand, publishers face the “chilling ef-

fect” of trial if they decide to omit a fact, and the courts

of the United States are free to impose their journalistic

judgment upon good faith decisions of the press, contrary

to the teaching of New York Times that constitutional

protection can be lost only where it can be convincingly

shown that the press acted with “actual malice”,

12

BLEED THROUGH POOR COPY

13

2. The failure to follow New York Times.

All courts passing upon these “deliberate omission”

cases accept the general doctrine laid down in New York

Times and subsequent cases that (1) the Constitution ap-

plies since matters of public interest are involved,* (2) a

plaintiff must show “with convincing clarity” either “actual

knowledge of falsity” or “serious doubts as to truth”,**

and (3) summary judgment is a necessary constitutional

corollary to the New York Times doctrine.***

*See, ¢.g., New York Times v. Sullivan, 376 U. S. 254 (1964);

Garrison v. Louisiana, 379 U. S. 64 (1964); Rosenblatt v. Baer,

383 U. S. 75 (1966); Curtis Publishing Co. v. Butts and Asso-

ciated Press v. Walker, 388 U. S. 130 (1967); Time, Inc. v. Hill,

385 U. S. 374 (1967) ; United Medical Laboratories, Inc. v. Colum-

bia Broadcasting System, Inc., et al., 404 F. 2d 706 (9th Cir. 1968),

cert. denied, 394 U. S. 921 (1969) ; Time, Inc. v. McLaney, 406 F.

2d 565 (Sth Cir. 1969), cert. denied, 395 U. S. 922 (1969) ; Rosen-

bloom v. Metromedia, 415 F. 2d 892 (3d Cir. 1969), cert. granted,

38 U. S. L. W. 3309 (U. S. Feb. 24, 1970) ; Bon Air Hotel, Inc. v.

Time, Inc., 295 F. Supp. 704 (S. D. Ga. 1969) ; Sellers v. Time, Inc.,

299 F. Supp. 582 (E. D. Pa. 1969), aff'd, F, 2d (3d Cir.

1970) ; Cerrito v. Time, Inc., 302 F. Supp. 1071 (N. D. Cal. 1969).

A discussion of the “public interest” doctrine is attached as Ap-

pendix D.

**New York Times, supra; Garrison, supra; Beckley Newspaper

Corp. v. Hanks, 389 U. S. 81 (1967) ; St. Amant v. Thompson, 390

U. S. 727 (1968). A discussion of the “actual malice” doctrine is

attached as Appendix E.

**#*See, e.g., Washington Post v. Keogh, 365 F. 2d 965 (D. C.

Cir. 1966), cert. denied, 385 U. S. 1011 (1967); United Medical

Laboratories, supra; McLaney, supra; Thompson v. Evening Star,

394 F. 2d 774 (D. C. Cir. 1968) cert. denied, 393 U. S. 884 (1968) ;

Walker v. Pulitzer Publishing Company, 394 F. 2d 800 (8th Cir.

1968); Hurley v. Northwest Publications, 273 F. Supp. 967 (D.

Minn. 1967), aff'd, 398 F. 2d 346 (8th Cir. 1968) ; Klahr v. Win-

terble, 4 Ariz. App. 158, 418 P. 2d 404 (1966) ; Ryan v. Dionne, 28

Conn. Sup. 35, 248 A. 2d 583 (1968) ; New-Journal Co. v. Gallagher,

233 A. 2d 166 (Del. 1967) ; Tagawa v. Maui Pub. Co., 448 P. 2d 337

(Hawaii 1968), cert. denied, 396 U. S. 222 (1969) ; Bon Air, supra;

Sellers, supra; Cerrito, supra. A discussion of the summary judgment

doctrine is attached as Appendix F.

14

The error below and the limited question presented upon

this petition is the failure to apply those principles to a good

faith editorial decision of omission where the publisher in

good faith believes that the omission of the irrelevant fact

enabled it to publish the truth. Put simply, can the Omission

of matter which a publisher honestly believes is irrelevant

or misleading constitute “actual malice” under the New

York Times rule? To state the question impels the answer,

for otherwise the courts are substituting their editorial

judgment for that of the press, contrary to the very essence

of the First Amendment—yet that is all that is involved in

this case.

The Circuit Court’s erroneous decision on the simple

question stated above was based on three misconceptions,

each fundamentally opposed to the New York Times rule.

First, it erroneously held that a knowledgeable editorial

decision of omission includes, by the very fact of knowl-

edge of the decision (which any responsible journalist will

always have), knowledge of falsity. Second, it erroneously

held that a court is free to substitute its own editorial de-

cision for that of the publisher in making a judgment as

to truth or falsity. Third, it isolated and focused entirely

upon one single factor, the good faith omission, to find

“actual malice”, to the complete exclusion and disregard of

all other evidence concerning the editorial procedure and

methodology followed in preparation of the article and the

uncontradicted beliefs of the editor, writer and researcher

that it was true. All three conceptions are erroneous*:

(a) Knowledge of falsity by reason of knowledge of omis-

sion.

The Circuit Court totally misapprehended the test which

it was required to apply in judging whether the publication

*The identical errors were indulged in by the Seventh Circuit in

the Pape case and the District Court in the Ragano case, errors which

were rejected by the District Court in the Pape case and the District i

Court in this case.

oon

BLEEO THROUGH POOR COPY

15

was entitled to constitutional protection. Thus, in New York

Times this Court explicity stated: “A defense for erroneous

statements honestly made is no less essential here” (376 U. S.

at 278) and barred action on such statements “believed to

be true” (p. 279). Again, in Garrison, this Court stated

that: “Utterances honestly believed contribute to the free

interchange of ideas and the ascertainment of truth” (379

U. S. at 73). The same protection necessarily extends to

deliberate omissions honestly made in the belief they were

necessary to the truth. Such omissions cannot constitute

the “actual malice” which is required to defeat the constitu-

tional protection.

But the court below completely disregarded these princi-

ples in reaching its conclusion that there was a basis for

denial of constitutional protection; its conclusion was based

solely upon the following statement:

“However, as more fully appears in the opinion

of Judge Krentzman, it is undisputed that Time

knew that Wasserman, like Ragano, was an attorney

for one or more of the men in the group referred to

in the article and was not one of those called before

the grand jury and released on $100,000 bail.”*

All the court is saying is that the editor, writer and re-

searcher knew that they were omitting a fact. This does not

cover the further, and essential point that, in the view of

the editor, writer and researcher (as testified to on deposi-

tions) the omission of that fact made the story true. The

essential inquiry is not whether the editor, writer and re-

*Similarly, in the Pape case, now pending in this Court as No.

1309, the Seventh Circuit based its conclusion solely upon the follow-

ing statement :

“However, Magnuson deliberately and knowingly failed to

mention in the article that his story of the alleged conduct

and action of Pape and the other police officers was based on

an allegation in a complaint in a pending civil suit.”

16

searcher knew what they were doing—rather, it is whether

the editor, writer and researcher, knowing what they were

doing, “honestly believed” in the truth of that which was

said. But the court below failed to make this inquiry,

Instead, it engaged in a complete non sequitur—since peti-

tioner knew that Wasserman was an attorney and had not

been arrested, petitioner knew that the article was false—

which ignores the nature of the editorial process, the sub-

jective nature of the “actual malice” standard of New York

Times, the facts which amply supported the honest belief

of petitioner’s employees that they were publishing the truth,

and the lack of any contrary showing that they had actual

knowledge of falsity.

The fact that an editorial decision to omit material is

knowingly made cannot mean tpso facto that the resulting

publication is known by the publisher who makes that deci-

sion to be false. By the nature of the editorial process, the

publisher, confronted with a mass of facts concerning a

person, must pick and choose among those facts in order

to present a story which, in his opinion, most accurately

informs the reader about the matter of public interest in

which the person was involved.

In looking solely to the fact that Time knew Wasserman

and Ragano to be attorneys, the court below also ignored

the subjective nature of the “actual malice” standard. If

actual malice means actual serious doubts as to truth, as

this Court has held, then it is only the state of mind of

petitioner’s responsible employees which is relevant. It is

not enough to say that those employees had actual knowl-

edge that Wasserman was an attorney. Neither is it enough

to show that they had actual knowledge that he was not

one of those who had been arrested at the first luncheon,

It is necessary in addition to show that they published

something which, in light of those facts, they knew to be

false.

BLEED THROUGH POOR COPY

_

Such a showing is precluded by the facts of this case.

They amply support the honest belief of petitioner’s employ-

ees that Wasserman should not have been identified as an

attorney. They show that seven persons, including Wasser-

man, who participated in the second La Stella luncheon were

showing their contempt for law enforcement authority by

acting the part of the 13 hoodlums who had been arrested

at the first La Stella luncheon. Why else would those per-

sons state, as reported in the New York Daily News and

the New York Times clippings of October 1, 1966, “Why

don’t they arrest us now?” But whether or not the second

luncheon was actually a gesture of contempt and a staged

performance in which Wasserman was playing a part, in

which case the article is true, is immaterial here. What is

material is that petitioner’s employees certainly thought

that it was a gesture of contempt in which Wasserman was

playing a part and so testified. All of the information

available to the editor, writer and researcher, including the

photograph which speaks for itself, and the articles in the

New York Times and the New York Daily News, clearly

supported that conclusion.

To put it another way, petitioner’s employees testified

that there would be nothing wrong with Wasserman as

an attorney going out to lunch with his clients. Neither

would there be anything newsworthy about it. However,

for an attorney to go out to lunch with his clients to the

same restaurants where they were originally arrested and,

against the background of the prior arrest and refusal to

testify, to participate in the second lunch where it was

stated, “Why don’t they arrest us now?” is quite a differ-

ent matter. This was not a simple luncheon attended by

an attorney and his clients—this was a staged performance

and the New York Times and the New York Daily News

on which petitioner relied, so reported it. More to the point,

17

18

under the facts of this case, petitioner’s employees certainly

had a right to believe that the second luncheon was a staged

performance for the benefit of the press, complete with

toasts to the photographers and mock expressions of amaze.

ment that no arrests were made. That should be the end of

the matter, particularly since there is no showing that petj-

tioner’s employees published with knowledge of falsity or

with serious doubts as to truth.

(b) The Cireuit Court’s unsound journalistic judgment,

In hinging its legal reasoning and factual analysis on

the sole fact that Wasserman was an attorney and was not

identified as such, the court below substituted its editorial

judgment for that of petitioner. As shown in the preceding

part of this petition, the focus of the Time article as the

editor, writer and researcher interpreted it, and with ample

basis, was upon the second La Stella luncheon as a news-

worthy event in itselfi—a vignette of the contemptuous chal-

lenge which hoodlums can offer law enforcement. Time was

not reporting on a group of Cosa Nostra leaders lunching

with their attorneys. Instead, it was reporting on a group of

individuals who were playing a role on behalf of a larger

group of hoodlums that preceded them. Freedom of the

press will have reached a sorry state, if, as a matter of law,

attorneys are required to be identified as such whether or

not their activities bear a relationship to their professional

status, and if articles on matters of public interest are to

be written as courts think they should be rather than as a

publisher honestly believes is necessary for truthful report-

ing.

The court below assumed that since Wasserman was an

attorney he could only attend the luncheon in his capacity

as an attorney. The fallacy is obvious and this would be

equally true if Wasserman had been a police officer or a

businessman. Both the New York Times and the New York

BLEED THROUGH POOR COPY

19

Daily News, on which petitioner relied and which it believed

to be responsible publishers who published accurate accounts

of the events, stated that the individuals at the second

luncheon, including Wasserman, were conducting a staged

performance and were disdainful and contemptuous. Even

if this were wrong, petitioner was entitled to convey the

impression which Wasserman and his luncheon companions

thus created, since petitioner had reason to believe it was

true, did not have serious doubts as to its truth and did not

have information to the contrary.

More to the point, how can a publisher, who omits from

its publication what it honestly believes to be irrelevant

facts, be charged with “actual malice” when he would not

be for affirmative misstatements honestly made? Obviously,

if Wasserman was not at the second luncheon in his capac-

ity as a lawyer, or at least if petitioner believed that or did

not have serious doubts to the contrary, knowledge that

Wasserman was a lawyer was totally irrelevant to the sub-

ject matter of the publication. Since petitioner in good faith

believed that the individuals at the second luncheon, includ-

ing Wasserman, returned to La Stella as representatives of

the original group, i.e., that Wasserman was an actor and

not a lawyer, petitioner was entitled so to publish even if

ultimately proved wrong.

The District Court clearly agreed with this position, with

the truth of the Time story, and with the good faith of the

editor, writer and researcher. Even the Circuit Court

referred to “Time in its editorial decision reached in good

faith”. That agreement, it seems to us, is significant. If

petitioner’s position was sufficient to convince the District

Court, that position even if erroneous as to the literal and

technical truth of the story, can hardly give rise to that

“high degree of awareness of probable falsity” which is

needed before the protection of the Constitution can be lost.

The decision below is diametrically in conflict with

decisions of this Court and other Circuits (except for the

Seventh Circuit in Pape) in defining and applying the New

York Times concept of actual malice. The Circuit Court

here has isolated and focused entirely upon one single factor

to find actual malice, to the complete exclusion and disregard

of all other evidence concerning the editorial methodology

followed in preparation of the article and the uncontradicted

beliefs of the editor, writer and researcher that it was true

Other New York Times decisions have rejected such a con-

strictive approach and have held that all evidence pertaining

to the publication and its origin must be considered to

establish actual malice with the “convincing clarity” re.

quired by the First Amendment.

The approach of the court below in considering one

single and narrow factor (omission of “attorney”) rather

than all elements of the editorial process in writing and

research of the article, is in square conflict with the decisions

of other Circuits under the New York Times doctrine and

that of New York Times itself. Virtually all other courts,

both federal and state, have followed the constitutional

mandate of New York Times and have examined all facts

behind the preparation and writing of the publication in

determining whether actual malice is a jury issue.

The evidence that this Court held insufficient in New

York Times to support a finding of actual malice was

manifestly stronger than that adduced by Wasserman below.

Thus, in New York Times, the trial record disclosed:

1. The New York Times had evidence in its own

files (from news material it had previously published)

BLEED THROUGH POOR COPY

ee

21

demonstrating the falsity of several statements in the

publication (376 U. S. at 263, 287-8).

2. The Secretary of The New York Times Company

admitted he could readily discern that on its very face

at least one statement in the publication was false (id.,

pp. 263-4).

3. The New York Times accepted and published the

assailed advertisement without checking its accuracy

against anything—either outside sources or the paper’s

own files (id., p. 287).

Upon such a showing this Court held that the Times

could not be found guilty of actual malice because the

evidence would support “at most a finding of negligence”

(id., p. 288). The court below disregarded the entire meth-

odology of the editor, writer and researcher and focused

solely upon the omission of the word “attorney”. If this

Court had followed the same approach in New York Times

and looked at only one fact (such as the materials in the

Times’ files), this Court clearly would have found a suffi-

cient basis for a finding of actual malice. Instead, this

Court considered all of the facts concerning the method and

processes followed in making the publication and held that

there was no actual malice as a matter of law.

The decision below also squarely conflicts with St.

Amant v. Thompson, 390 U. S. 727 (1968). There the

record revealed that the defendant publisher had made no

attempt to check or verify the truth of the alleged libel,

had no knowledge of the plaintiff's past conduct, and had

relied solely on the affidavit of a stranger whose veracity

and credibility were unknown. This Court nonetheless held

that the plaintiff had failed as a matter of law to make a

submissible showing of actual malice in the sense of “reck-

22

lessness”; this Court declared that recklessness requires

proof that the defendant “in fact entertained serious doubts

as to the truth” of the alleged libel (390 U. S. at 730, em-

phasis added). Here, we submit, Wasserman has made

not the remotest showing that either the editor, the writer,

the researcher or anyone at Time, Inc. entertained “serious

doubts as to the truth” of the Time article.

So also, the decision below is in flat conflict with

Beckley Newspaper Corp. v. Hanks, 389 U. S. 81 (1969).

In Beckley the defendant newspaper had accused the plain-

tiff of intimidation, threats and other misconduct as a public

official; defendant admitted that (unlike the instant case)

no research or investigation had been conducted concerning

the accusations, and that they were published because de-

fendant believed there was a possibility they were true.

This Court, in reversing a judgment for the plaintiff per

curiam, considered the entire record and held that the evi-

dence was insufficient to present a jury question of whether

defendant acted recklessly. Again, the proof of actual malice

in the instant case falls palpably short of the evidence held

insufficient to go to the jury in Beckley. Here the article

was comprehensively researched in accordance with Time’s

standard editorial procedure, and the editor, the writer and

the researcher all believed the article was in fact true, not

merely that there was a possibility it was true (as in Beck-

ley).

Decisions of other Circuits have held that defendant-

publishers are entitled to summary judgment or dismissal

without the necessity of submitting the case to a jury when

it appears on the basis of all affidavits, depositions or other

adduced evidence that the plaintiff cannot sustain his bur-

den of proving actual malice. Thus, in Time, Inc. v. Mc-

Laney, 446 F. 2d 565 (Sth Cir. 1969), cert. denied, 395

U. S. 922 (1969), the Fifth Circuit observed that a “sub-

stantial investigation” had been made into the truth of the

BLEED THROUGH POOR COPY

23

libel and that the author had no reason to have

serious doubts as to the truth of the publication. Precisely

the same is true, we submit, in the instant case.*

3, The gravely “chilling effect” of this litigation.

Summary judgment is essential here. Organized crime

is a matter of consuming public concern. Its leaders do not

like press exposes, but they like even less to sue for them.

None of the named Cosa Nostra leaders at the La Stella

luncheon on September 22 and 30, 1966 have brought libel

actions, and for good reasons.** But if their lawyers, such

as Wasserman and Ragano, are free to participate with

them in a staged gesture of defiance such as disclosed by

the record in this case, and then bring suits which survive

summary disposition, organized crime will have found an

easy way to exert the “chilling effect” on press discussion

of its activities which the Constitution is supposed to pre-

yent. Not only will publishers such as petitioner be put to

the expense of a protracted trial, but their defense will be

*Equally in conflict with the holding below are New York Times

Co. v. Connor, 365 F. 2d 567 (Sth Cir. 1966); United Medical

Laboratories v. CBS, 404 F. 2d 706 (9th Cir. 1968), cert. denied,

304 U. S. 921 (1969) ; Bon Air Hotel, Inc. v. Time, Inc., 295 F.

Supp. 704 (S. D. Ga. 1969) ; Klahr v. Winterble, 418 P. 2d 404

(Ariz. Ct. App. 1966) ; Hurley v. Northwest Publications, Inc., 273

F. Supp. 967 (D. Minn. 1967), aff'd, 398 F. 2d 346 (8th Cir. 1968) ;

Thompson v. Evening Star Newspaper Co., 394 F. 2d 774 (D. C.

Cir. 1968), cert. dented, 393 U. S. 884; Tagawa v. Maui Pub. Co.,

448 P. 2d 337 (Sup. Ct. Hawaii 1968), cert. denied, 396 U. S. 822

(1969) ; Sellers v. Time, Inc., 299 F. Supp. 582 (E. D. Pa. 1969),

aff'd, F, 2d (3d Cir. 1970).

**Wasserman testified that he and his client, Carlos Marcello,

“determined the better part of discretion was [for Marcello] not to

file a lawsuit . . . in view of the fact that all around it might be better

not to expose himself to the kind of searching pre-trial depositions

that are customary in libel actions” (W. Dep., App. 194).

24

hampered by invocation of the lawyer-client privilege be-

tween the attorney and the mobster.*

Both this Court and the Circuit and District Courts

have recognized and squarely held that avoidance of a “chill.

ing effect” is necessary to maintain the vitality of the First

Amendment. The instant case, and its companion Ragano

suit and the proceedings which have been had in them, place

in bold relief the insidious and chilling effect of a failure

to terminate a libel suit involving publications dealing with

matters of public interest at the earliest possible moment.

The petitioner has been in litigation since 1966 and has been

required to defend extensive pretrial proceedings in both

actions and two appeals. In the Ragano case, it was neces-

sary three times to move for summary judgment before

leave to appeal was finally granted by Judge Krentzman.

Also, that case was set for trial twice in Tampa, Florida,

with defendant’s counsel and all witnesses (from New

York) present and ready for trial, and then adjourned. And

now the Wasserman case is being sent back for trial in the

*Both Wasserman and Ragano at the taking of their depositions

in their respective actions invoked the attorney-client privilege con-

cerning their communications with their clients, with one exception—

Wasserman’s inherently incredible statement that Carlos Marcello

was in New York City in September, 1966, for the purpose of rais-

ing funds for an “old ladies’ home” (W. Dep., App. 251).

It is also noteworthy that when the depositions of Carlos Mar-

cello, Joseph Marcello and Santo Trafficante were taken in the com-

panion Ragano action, all gave their names and addresses and then

proceeded to take the Fifth Amendment with respect to each and

every question asked them. Similarly, in this action, Wasserman

stipulated that if the depositions of Carlos and Joseph Marcello

were taken, they would refuse to answer on the same grounds.

Such actions, effectively closing the doors to discovery of the

truth, illustrate conclusively the wisdom of the constitutional protec-

tion. As long as a publisher acts in good faith without knowledge of

falsity or serious doubts of truth, it should not be subject to the

pendency of libel actions such as the instant ones brought by Wasser-

man and Ragano; and, where a publisher is, summary disposition

should be granted.

BLEED THROUGH POOR COPY

——_—

25

District of Columbia. The time and expense involved in

these two cases stemming from one short miscellany item

printed in October 1966, is appalling. A publisher with less

financial resources than Time Inc. would have long since

capitulated in these cases and resolved, for the future, to

steer far wide of reporting the truth as he honestly believes

it lest libel litigation result. If the decision below is allowed

to stand, “free expression * * * might be the loser”, Dom-

browski v. Pfister, 380 U. S. 479, 486 (1965).

CONCLUSION

For the reasons stated, the petition for a writ of cer-

tiorari should be granted.

April 22, 1970.

Respectfully submitted,

Harotp R. MeEpInNA, Jr., EsoQ.,

One Chase Manhattan Plaza,

New York, N. Y. 10005

Attorney for Petitioner.

Joun H. PICKERING,

Dennis M. FLANNERY,

Witmer, CUTLER & PICKERING,

Farragut Building,

900—17th Street, N. W.,

Washington, D. C. 20006

W. Dennis Cross,

CravATH, SWAINE & Moore,

One Chase Manhattan Plaza,

New York, N. Y. 10005

Of Counsel.

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT

For THE DIstTRICT oF COLUMBIA

——

ACK WASSERMAN, Civil Action

; Plaintiff, No. 2925-66

v. [FILED

May 29 1969

Time, INc., Robert M. Stearns,

Defendant. Clerk]

Order

This case having come on for hearing on defendant’s

motion for summary judgment and on plaintiff’s motion for

interlocutory summary judgment, and the Court having

heard argument and it appearing that there is no genuine

issue as to any material fact and that defendant is entitled

to judgment as a matter of law,

It Is, THEREFORE, ORDERED:

1. Defendant’s motion for summary judgment be, and

it hereby is, granted.

2. Plaintiff’s motion for interlocutory summary judg-

ment be, and it hereby is, denied.

3. Judgment is entered in favor of defendant and

against the plaintiff, and the complaint is dismissed.

Dated this 27th day of May, 1969.

/s/ AusBrey E. RoBINson, Jr.

United States District Judge

No objection as to form:

/s/ CHESTER C. SHORE

Chester C. Shore

Attorney for Plaintiff

BLEED THROUGH POOR COPY

APPENDIX B

United States Court of Appeals

For THE District or CoLuMBIA CirRcUIT

No. 23,267

JAcK WASSERMAN, APPELLANT

V.

Tim_E, Inc.

Appeal from the United States District Court

for the District of Columbia

Decided March 3, 1970

Mr. Chester C. Shore for appellant.

Mr. Harold R. Medina, Jr., of the bar of the Court of

Appeals of New York, pro hac vice, by special leave of

court, with whom Messrs. John H. Pickering and Dennis

M. Flannery were on the brief, for appellee.

Before Fany, Senior Circuit Judge, and WricutT and

Rosinson, Circuit Judges.

Per CurraM: On cross motions in appellant’s action for

libel in the District Court against appellee Time, Inc., the

court granted summary judgment in favor of Time, and

dismissed appellant’s complaint. He appeals.

—— ~~

B2

Appendix B

Time publishes a weekly magazine with national circy.

lation. In its issue of October 7, 1966, it published a photo.

graph of seven men sitting at a table in a restaurant jn

Queens, New York. One of the men was appellant, a mem.

ber of the bar of this court in active practice. Another was

Frank Ragano, also an attorney. Accompanying the photo-

graph was a brief article which referred to the occasion

as a meeting even “ ‘bigger than Apalachin’ of top Cosa

Nostra hoodlums.” The article also referred to the occasion

as a delayed lunch which had been interrupted by the po-

lice because the District Attorney wanted the men before

a grand jury on crime in Queens, that a judge had set bail

at $100,000 each, that this had been met, and that the grand

jury got only grunts.

Ragano sued Time for libel in the United States District

Court for the Middle District of Florida.’ In that case Time

moved for summary judgment on the basis of the freedom

of press protected by the First Amendment. Judge Krentz-

man denied the motion. He held that if the statement was

understood as defamatory it was not protected by the rul-

ing announced in New York Times v. Sullivan, 376 U. S.

254 (1964), if the statement was false and made with actual

malice, that is, with knowledge of its falsity or in reckless

disregard of whether it was true or false. He held as to Mr.

Ragano that under these criteria the publication was with

actual malice. He accordingly denied Time’s motion for

summary judgment and held that it was for the jury to

determine whether or not the article was in fact understood

as defamatory.

Weaccept the position of Time, as Judge Krentzman did,

that the standards of New York Times v. Sullivan, supra,

1Ragano v. Time, Inc., 302 F. Supp. 1005 (M. D. Fla. 1969),

appeal docketed, 5th Cir. 1969.

BLEED THROUGH POOR COPY

B3

Appendix B

are applicable even though appellant was not a public offi-

cial, since he was engaged in a matter of public interest and

concern.” However, as more fully appears in the opinion of

Judge Krentzman, it is undisputed that Time knew that

Wasserman, like Ragano, was an attorney for one or more

of the men in the group referred to in the article and was

not one of those called before the grand jury and released

on $100,000 bail. Time’s position is that by attending the

delayed lunch meeting the attorneys were playing a part

and were engaging in a demonstration defiant of the law,

which justified Time in its editorial decision reached in

good faith not to refer to appellant and Ragano as at-

torneys, but to place them in the same category as the

others characterized in the article as we have set forth.

Such a decision on the part of the editors of Time, however,

would not preclude responsibility for any defamation known

to be false or made with reckless disregard of the truth.

The judgment is reversed and the case is remanded for

trial on the issues of actual malice, defamation and possible

damages.

Reversed and remanded for further pro-

ceedings consistent with this opinion.

*See cases cited in Ragano, supra, 302 F. Supp. at 1006-07, n. 1.

B4

Appendix B

Waricut, Circuit Judge, concurring: 1 concur in th

court’s opinion. My attempt here is to set out what J

conceive to be the proper procedure in handling the issue

of actual malice in New York Times Co. v. Sullivan’ cases,

In my judgment New York Times Co. v. Sullivan makes

actual malice a constitutional issue to be decided in the first

instance by the trial judge applying the Times test of actual

knowledge or reckless disregard of the truth.* Cf. Jackson

v. Denno, 378 U. S. 368 (1964). Unless the court finds, on

the basis of pretrial affidavits, depositions or other docu

mentary evidence, that the plaintiff can prove actual malice

in the Times sense, it should grant summary judgment for

the defendant. Washington Post Co. v. Keogh, 125 U.S,

App. D. C. 32, 365 F. 2d 965 (1966), cert. denied, 385

U. S. 1011 (1967). Compare Goldwater v. Ginzburg, 2

Cir., 414 F. 2d 324, 336-337 (1969), cert. denied, ——

U. S. ——, 38 U. S. L. Weex 3279 (January 26, 1970).

If the case survives the deiendant’s summary judgment

motion, the trial court at the close of the plaintiff’s case

must decide whether actual malice has been shown with

“convincing clarity." In making this judgment the court

will judge the credibility of the witnesses and draw its own

inferences from the evidence. If the trial is permitted to

proceed, the court will be called upon again to make a judg-

ment on the actual malice issue at the close of all of the evi-

dence. If the motion for a directed verdict at this stage of

the trial is denied, the actual malice issue, along with the

other issues, is then submitted to the jury under the Times

1376 U. S. 254 (1964).

"Compare Rosenblatt v. Baer, 383 U. S. 75, 88 (1966): -

remark only chat, as is the case with of

{in a libel case] it is for the trial j

termine whether

the show responden public oi

*New York Times Co. v. pf egg supra Note 1, 376 U. ce

285-286.

BLEED THROUGH POOR COPY

BS

Appendix B

instruction without any indication from the court or counsel

that the court has decided that the evidence shows actual

malice with “convincing clarity.”

This two-step procedure in which both the trial judge

and the jury must find actual malice before there can be

judgment for the plaintiff provides the protection of the

First Amendment freedom that Times sought to make se-

cure in areas of public concern. As the Court stated in

Rosenblatt v. Baer in support of its requirement that the

trial judge in the first instance determine whether the evi-

dence shows the plaintiff in a libel suit to be a public official:

“Such a course will both lessen the possibility that a jury

will use the cloak of a general verdict to punish unpopular

jdeas or speakers, and assure an appellate court the record

and findings required for review of constitutional decisions.

Cf. Speiser v. Randall, 357 U. S. 513, 525; New York

Times, 376 U. S., at 285.” 383 U. S. at 88 n. 15.

I am authorized to say that Judge Robinson concurs in

Biticen THROLGH POOR COPY

APPENDIX C

PEOPLE

Considering the 6-ft. 8-in. size of the

man. it was like looking for a needle in

a bonefish. Dining with University of

Britivh Columbia dons in Vancouver. Har-

vard Economist John Kenneth Gal-

braith, 57. choked on a hony hunk of

the area's famed broiled salmon. As he

told it. “There followed a contest, he-

tween myself and the salmon, that was

a great sporting event on the whole. At

the hospital, they tried casting for it:

then they trolled for it, and that didn't

work cither. And then, after they used

a general anesthetic. I learned that they

had tried a fly, but finally extracted it

with an o'd-fashioned worm.” Fish story

or no. once unplugged, Galbraith po-

litely tock his hosts off the hook. said,

“I'm sure my salmon was one of the

finest local species.”

Mow of the alumni don't feel overly

rah-trah about Tacoma’s McNeil Island

Federal ’enitentiary: but for ex-Team-

sters Bows Dave Beck, 72, the place was

a veritable Vic Tanny’s West. Released

22 months ago. after serving half of a

fixe-scar stretch for income tax evasion.

Beck bousts that “I came out in better

shape than I went in.” Since the kind of

Gemiitlich\eit that goes with his $50,-

weefll-a-\cur leamsiers pension was out

each other.” beamed Humphrey.

ously tickled at the mere nine-min

drive from his Capitol office.

The boys had barely finished ¢

cocktails in La Stella's restaurant o

in Queens, when New York's fi

burst into the joint to bust up what ¢

Queens D.A. called a meeting

“bigger than Apalachin™ of top Co

Nostra hoodlums from New Yo

Florida and Louisiana. It did look li

a summit at that: Sento (“Louis

tos”) Trafficante, 51. :

pre-Casiro gambling. Thomes (“Tc

my Ryan”) Eboli, 55, running

>

ode

pe 3

*.

<

*

y

;

a

f

es

MUIR] [eouSW

sty JO MIA UL “BuNsasdquy.. :Ajdou |

“1ySnoy) ui * <I Pasnpy _“wsiqeuor

jo sung jou “uoBys1 OF Yyorosdde

“yinoy) © sp2su.. puesuy “ponunuc

ay “sow smoyad asoyi uy . “purlsu

ul wsyadurad jo odil sty poou jtuc

am. IY) POISISUI IMG | SLDAUOS d

vow, dsey few Ayig iy) Popssuvs A

“wey “epeut> wisnem ysnowy) U

sty jo Burws & Suunp “> g “J2anooue

wt sueyd & yo Buiddoig “iy *

JOOU>1WY “AD ISOPY DY) “AunquojueD

doyyyssy s_puejSuq jo younyd ay)

JUIPINA “DIE[Eg YIaquuey ul mopurm

ayes se YORU OS 30U PIP sprsnid

“wins 38ny sweyesy Aypig SippSueAy

“WIKESY UOS PO-s294-g7 S suet

APPENDIX D

The Public Interest Test

Although some courts were initially misled by some of

the language in New York Times into believing that the

principle which it announced was limited in its application

to statements about “public officials”, it is now quite clear

that that concept as well as that of “public figure” are

simply facets of and are embraced within the broader con-

cept of “public interest”.

It is true that New York Times dealt only with “public

officials”. However, this Court quickly moved to make clear

that New York Times was not to be so narrowly inter-

preted. In his opinion for the Court in Rosenblatt v. Baer,

383 U. S. 75 (1966), Justice Brennan wrote:

“.. we reject any suggestion that our references

in New York Times, 376 U. S. at 282, 283, n. 23,

and Garrison, 379 U. S. 564, to Barr v. Matteo, 360

U. S. 564, mean that we have tied the New York

Times rule to the rule of official privilege. The pub-

lic interests protected by the New York Times rule

are interests in discussion, not retaliation, and our

reference to Barr should be taken to mean no more

than that the scope of the privilege is to be deter-

mined by reference to the functions it serves. See

Pedrick, Freedom of the Press and the Law of Libel:

The Modern Revised Translation, 49 Cornell L. Q.

581, 590-591 (1964).” 338 U. S. at pp. 84-95 n. 10.

The article by Pedrick, referred to in Justice Brennan’s

opinion, stated the policy grounds for the New York Times

rule as follows:

“..- If a qualified ‘good faith’ privilege is needed

to better assure open debate then the privilege ought

D2

Appendix D

to extend as stated by Judge Burch of Kansas tp

‘all matters of public concern.’ The logic is simple,

In modern democratic society the public judgment

makes itself felt on a great variety of subjects in a

great variety of ways, official and unofficial. If deci-

sion on these matters is to be adequately informed

every effort ought to be made to free the channels

of communication with respect to these subjects. . . ,

The determination of ‘matters of public concern’

should thus become the key to the application of

the privilege recognized in the Times decision.”

p. 592.

Pedrick argued that the protection went far beyond com-

ment directed at public officials:

“. .. But those maters which are of public con-

cern also go beyond the iniuediate province of gov-

ernment. A threatened labor strike aticcting a

critical industry may not provide any immediately

discernible role for public opinion but who would

doubt the legitimacy of the public concern and the

strategic significance of the public attitude. Even

such pedestrian matters as the closing hours ob-

served by business establishments, the hiring, reten-

tion, or dismissal of a symphony conductor or an

athletic coach would seem clearly matters of proper

public concern with respect to which the popular will

plays a role.” p. 593 (footnotes omitted).

If there were any doubt on the subject, it was set to rest

in Time, Inc. v. Hill, 385 U. S. 374 (1967). Justice Brennan

stated in his opinion for the Court:

BLEED THROUGH POOR COPY

———

D3

Appendix D

“ | We hold that the constitutional protections

for speech and press preclude the application of the

New York statute to redress false reports of matters

of public interest in the absence of proof that the

defendant published the report with knowledge of

its falsity or in reckless disregard of the truth.

“The guarantees for speech and press are not the

preserve of political expression or comment upon

public affairs, essential as those are to healthy gov-

ernment. ... We have no doubt that the subject of

the Life article, the opening of a new play linked to

an actual incident, is a matter of public interest. . . .

Erroneous statement is no less inevitable in such a

case than in the case of comment upon public affairs,

and in both, if innocent or merely negligent, ‘. . . it

must be protected if the freedoms of expression are

to have the “breathing space” that they “need . . . to

survive”... .’ New York Times Co. v. Sullivan,

supra, at 271-272. .. .” 385 U. S. at pp. 387-88.

It is true that this Court explicitly left open the question

of whether the “public interest” rule in its full sweep should

apply to defamation actions in addition to the privacy

action involved in Hill. However, in its next decision in

Butts, a defamation action, the Court again referred to

the public interest test.

Justice Harlan’s opinion which announced the judg-

ment of the Court relied on a phrase from Thornhill v.

Alabama, 310 U. S. 88 (1940), that freedom of discussion

“ ‘must embrace all issues about which information is needed

or appropriate to enable the members of society to cope

with the exigencies of their period.’” 388 U. S. at p. 147.

He noted that “we have rejected, in prior cases involving

D4

Appendix D

materials and persons commanding justified and important

public interest, the argument that a finding of falsity alone

should strip protections from the publisher”. Jd. at p,

152. He concluded:

““... We note that the public interest in the circy-

lation of the materials here involved, and the pub-

lisher’s interest in circulating them, is not less than

that involved in New York Times... .” p. 154,

And, in St. Amant v. Thompson, 390 U. S. 727, 731

(1968), the Court elaborated upon the constitutional safe-

guards established by its decision and drew no distinction

between publications dealing with public officials and those

dealing with public figures and matters of public interest.

Against that background the Court of Appeals for the

Ninth Circuit in United Medical Laboratories v. CBS, 404

F. 2d 706 (1968), cert. denied, 394 U. S. 921 (1969), the

Court of Appeals for the Fifth Circuit in Time, Inc. v.

McLaney, 406 F. 2d 565 (1969), cert. denied, 395 U. S.

922 (1969) and the Court of Appeals for the Third Circuit

in Rosenbloom v. Metromedia, Inc., 415 F. 2d 892 (3d Cir.

1969), cert. granted, 38 U. S. L. W. 3309 (U. S. Feb. 24,

1970) have explicitly accepted the principle that the “public

interest” rationale specifically applies to defamation actions.

Thus the Court in United Medical Laboratories stated:

“... If the publications here are within the field

of First Amendment protection at all as against the

consequences of state libel law, the area of public

interest to which they relate—conditions allegedly

capable of wide-spreadedly affecting public health—

would seem to us to be one of such inherent public

concern and stake that there could be no possible

BLEED THROUGH POOR COPY

D5

Appendix D

question as to the applicability of the New York

Times standard for any defeasance.

“The crucial question here then is whether First

Amendment immunity can properly be regarded as

extending to disclosure and discussion of profes-

sional practices and conditions in the health area

involved, so that those engaged in the particular

field who may claim to have been stained by such a

publication will be subject, in any seeking of redress,

to application of the federal standard for defeasance

of the Amendment immunity, instead of to the stand-

ards of state libel law for recovery.

“We have no difficulty in so concluding.” 404

F. 2d at p. 711.

In McLaney, the Fifth Circuit followed the lead of the

Ninth Circuit:

“|... [W]e agree with the Court of Appeals for

the Ninth Circuit which in its recent case, United

Medical Laboratories, Inc. v. Columbia Broadcast-

ing System, Inc., et al. (9th Cir.) D. C., 404 F. 2d

706, November 18, 1968, said: The standard of

New York Times was not to be regarded as having

had “its outer limits* * * marked out” so as not to

be open to further definition.’

“We conclude that the constitutional privilege

extends to discussions by specific individuals, not

associated with any government, if those individuals

are involved in matters of important public con-

cern... .” 406 F. 2d at 573.

Similarly, the Court in Rosenbloom stated its holding

as follows:

D6

Appendix D

“. .. [W]e conclude that the fact that plaintif¢

was not a public figure cannot be accorded decisive

importance if the recognized important guarantees

of the First Amendment are to be adequately imple.

mented. In Time, Inc. v. Hill, supra, the Court

applied the Times rule to false reporting of ‘matters

of public interest’ in connection with an action for

invasion of the right to privacy by a private indj-

vidual. See also Linn v. United Plant Guard Work.

ers, 383 U. S. 53 (1966), and Pickering v. Board

of Education, 391 U. S. 563 (1968). Our con-

clusion finds support in similar rulings of other

courts. United Medical Laboratories v. Columbia

Broadcasting System, 404 F. 2d 706 (9th Cir.

1968), cert. den., 394 U. S. 921 (1969) ; Bon Air

Hotel, Inc. v. Time, Inc., 295 F. Supp. 704 (S. D.

Ga. 1969); All Diet Foods Distributors, Inc. y.

Time, Inc., 290 N. Y. S. 2d 445 (Sup. Ct. 1967).

See also Time, Inc. v. McLaney, 406 F. 2d 565

(Sth Cir. 1969), cert. den., 395 U. S. 922 (1969).”

The guiding principle stated by this Court in Thornhill

v. Alabama, supra—freedom of discussion on all subjects—

was quoted in Rosenblatt v. Baer, 383 U. S. at pp. 89-9

(1965) (concurring opinion of Justice Douglas) ; Hill, 385

U. S. at p. 388; and Butts, 388 U. S. at p. 147. To the

extent, then, that the Court has referred to the “public

figure” status of a plaintiff, the term means a figure in

whom the public has an interest, not necessarily a figure

who is public. For example, the activities of a Russian spy

ring in New York entirely unknown to the public would

render the members of that ring a legitimate subject of

BLEED THROUGH POOR COPY

_——

D7

Appendix D

inquiry since the public has an interest in those activities.

Thus, in McLaney, the Court determined that the privilege

applied to statements concerning a professional gambler

who tried to remain anonymous because of the nature of

his activities.

In addition to the Supreme Court and Circuit Court

decisions, lower court decisions have expressly held that

public interest was the basis for application of the con-

stitutional test in defamation. Cullen v. Grove Press, 276

F. Supp. 727 (S. D. N. Y. 1967); Altoona Clay Products

y. Dun & Bradstreet, 286 F. Supp. 899 (W. D. Pa. 1968).

Those lower court decisions have also included several in

which Time, Inc. has been a party. All Diet Food Distri-

butors, Inc. v. Time, Inc., 56 Misc. 2d 821, 290 N. Y. S.

2d 445 (Sup. Ct. N. Y. County 1967); Bon Air v. Time,

Inc., 295 F. Supp. 704 (S. D. Ga. 1969) ; Sellers v. Tine,

Inc., 299 F. Supp. 582 (E. D. Pa. 1969), aff'd, —— F. 2d

— (3d Cir. 1970) ; Cerrito v. Time, Inc., 302 F. Supp.

1071 (N. D. Cal. 1969).

It can no longer be doubted that the constitutional privi-

lege announced in New York Times applies to all applica-

tions regarding matters as to which the public has a right

to be informed. The crux of the matter was aptly put by

Judge Lawrence in his decision in Bon Air Hotel, Inc. v.

Time, Inc., 295 F. Supp. 704, 705 (S. D. Ga. 1969) :

“Whatever solid ground plaintiff’s case origi-

nally stood on has been steadily eroded by the sweep

and flow of First Amendment freedoms through

new and wider channels.”

res. = , ess eee, Ae tee Se ~—me eer Bem ee

APPENDIX E

The Actual Malice Standard

This Court has laid down the following constitutional

standard for articles which are entitled to protection: A

plaintiff may not recover unless he proves with “convincing

clarity” that the article was published with “actual malice” —

“that is, with knowledge that it was false or with reckless

disregard of whether it was false or not” 376 U. S. at 280.

And it is for the courts to determine whether this standard

has been met—they must examine the statements in issue

and the circumstances under which they were made to see

whether the proof presented to show “actual malice” has

“the convincing clarity which the constitutional standard

demands... .” New York Times, 376 U. S. at 285-86.

These principles—enunciated in New York Times and

repeated in Garrison v. Louisiana, 379 U. S. 64, 74 (1964),

have remained constant as this Court has extended the doc-

trine of New York Times to articles involving public figures

and matters of public interest. In St. Amant v. Thompson,

390 U. S. 727 (1968), the Court explained that in cases

concerning publications dealing with public figures and

matters of public interest, as well as public officials, a plain-

tiff has the burden of showing that the publication is made

with “actual malice” as defined in New York Times and

later cases. The Court went on to explain what its cases

mean with respect to the “reckless disregard” branch of its

“actual malice” rule:

“These cases are clear that reckless conduct is not

measured by whether a reasonably prudent man

would have published, or would have investigated

before publishing. There must be sufficient evi-

dence to permit the conclusion that the defendant

in fact entertained serious doubts as to the truth

of his publication. Publishing with such doubts

E2

Appendix E

shows reckless disregard for truth or falsity ang

demonstrates actual malice.” 390 U. S. at p. 731,

And the Court went on to emphasize that nothing less

would “adequately implement First Amendment policies”,

stating:

“Tt may be said that such a test puts a premium

on ignorance, encourages the irresponsible publisher

not to inquire, and permits the issue to be determined

by the defendant’s testimony that he published the

statement in good faith and unaware of its probable

falsity. Concededly the reckless disregard standard

may permit recovery in fewer situations than would

a rule that publishers must satisfy the standard of

the reasonable man or the prudent publisher. But

New York Times and succeeding cases have em-

phasized that the stake of the people in public busi-

ness and the conduct of public officials is so great

that neither the defense of truth nor the standard

of ordinary care would protect against self-censor-

ship and thus adequately implement First Amend-

ment policies. Neither lies nor false communica-

tions serve the ends of the First Amendment, and

no one suggests their desirability or further prolif-

eration. But to insure the ascertainment and pub-

lication of the truth about public affairs, it is e-

sential that the First Amendment protect some er-

roneous publications as well as true ones. We ad-

here to this view and to the line which our cases

have drawn between false communications which

are protected and those which are not.” Jd. at pp.

731-32.

BLEED THROUGH POOR COPY

E3

Appendix E

The burden of proving actual malice is on the plaintiff,

y. Cowles Magazines & Broadcasting, Inc., 392 F.

24417 (9th Cir. 1968), who must make an affirmative show-

ing of facts from which defendant’s probable knowledge of

falsity may be constitutionally sustained. Thompson Vv.

Evening Star Newspaper Co., 394 F. 2d 774, 776 (D. C.

Cir. 1968), cert. denied, 393 U. S. 884 (1968). The mere

hope of questioning the credibility of defendant’s witnesses

is not sufficient to resist summary judgment. Hurley v.

Northwest Publications, Inc., 273 F. Supp. 967, 974 (D.

Minn. 1967), aff’d on opinion below, 398 F. 2d 346 (8th

Cir. 1968). Where testimony stands uncontradicted and

the adverse party has no basis on which to question the

credibility of the witnesses so testifying, their assertions

must be accepted as true. See Orvis v. Brickman, 196 F.

24 762, 765-6 (D. C. Cir. 1952) ; Gifford v. Travelers Pro-

tective Assn., 153 F. 2d 209, 211 (9th Cir. 1946); Radio

City Music Hall Corp. v. United States, 135 F. 24 715, 718

(2d Cir. 1943).

Further, “actual malice” may not be presumed or in-

ferred from the nature of the defamatory statement, Wash-

inton Post Co. v. Keogh, 365 F. 2d 965 (D. C. Cir. 1966),

cert. denied, 385 U. S. 1011 (1967) ; Rosenbloom v. Metro-

media, Inc., supra, nor from the defendant’s failure to re-

tract the allegedly defamatory statement, New York Times,

376 U. S. at 286; United Medical Laboratories, Inc. v.

Columbia Broadcasting System, Inc., 404 F. 2d 706, 713

(9th Cir. 1968), cert. denied, 394 U. S. 921 (1969) ; New

York Times Co. v. Connor, 365 F. 2d 567, 577 (Sth Cir.

1966). Neither may it be inferred from the failure to seek

out plaintiff to verify facts before publication, Hurley v.

Northwest Publications, Inc., supra, nor from a failure to

investigate, Beckley Newspapers Corp. v. Hanks, 389 U .S.

81 (1967).

i a a a= Mie a Mle te Eee i. a = a ol on te

The Necessity for Summary Judgment

This Court has emphatically noted that one of the great-

est deterrents to free discussion of matters of public inter-

est is fear that publication might result in a libel action

entailing an expensive defense to prove truth.

“[ W Jould be critics . . . may be deterred from

voicing their criticism, even though it is believed

to be true and even though it is in fact true, because

of doubt whether it can be proved in court or fear

of the expense of having to do so. They tend to

make only statements which ‘steer far wider of the

unlawful zone.’ Speiser v. Randall, supra, 357 U. S.

at 526. The rule thus dampens the vigor and limits

the variety of public debate. It is inconsistent with

the First and Fourteenth Amendments.” New York

Times Co. v. Sullivan, 376 U. S. 254, 279 (1964).

This Court has specifically noted that fear of expense

of trial is as great a threat to freedom of press as fear of

large verdicts :

“Fear of large verdicts in damage suits for in-

nocent or mere negligent misstatement, even fear

of the expense involved in their defense, must in-

evitably cause publishers to ‘steer . .. wider of the

unlawful zone,’ New York Times Co. v. Sullivan,

376 U. S. at 279; see also Speiser v. Randall, 357

U. S. 513, 526; Smith v. California, 361 U. S. 147,

153-154; and thus ‘create the danger that the legiti-

mate utterance will be penalized.’ Speiser v. Randall,

supra, at 526.” Time, Inc. v. Hill, 385 U. S. 374,

389 (1967).

It is necessary that frivolous libel suits be dismissed

summarily to avoid the “chilling effect” on freedom of

2F |

Appendix F

speech and press an expensive defense entails. Dombroy.

ski v. Pfister, 380 U. S. 479, 487 (1965). Thus, the First

Amendment guarantee requires that summary judgment

be granted as soon as it becomes clear that a plaintiff can.

not establish “actual malice’. Since Wasserman cannot

show “actual malice” with the convincing clarity required, _

it is necessary that summary judgment be granted.

In Washington Post Co. v. Keogh, 365 F. 2d 965, 968

(D. C. Cir. 1966), cert. denied, 385 U. S. 1011 (1967),

the Court held that the defendant was entitled to summary

judgment, stating that summary judgment was an essential

part of the rules developed to ensure the First Amendment

guaranty of freedom of press:

“In the First Amendment area, summary pro-

cedures are even more essential. For the stake here,

if harassment succeeds, is free debate. One of the

purposes of the Times principle, in addition to pro-

tecting persons from being cast in damages in libel

suits by public officials, is to prevent persons from

being discouraged in the full and free exercise of

their First Amendment rights with respect to the

conduct of their government. The threat of being

put to the defense of a lawsuit brought by a popular

public official may be as chilling to the exercise of

First Amendment freedoms as fear of the outcome

of the lawsuit itself, especially to advocates of un-

popular causes. All persons who desire to exercise

their right to criticize public officials are not as

well equipped financially as the Post to defend

against a trial on the merits. Unless persons, in-

cluding newspapers, desiring to exercise their First

’ Amendment rights are assured freedom from the

harassment of lawsuits, they will tend to become self-

BLEED THROUGH POOR COPY

—

3F

Appendix F

censors. And to this extent debate on public issues

and the conduct of public officials will become less

uninhibited, less robust and less wideopen, for self-

censorship affecting the whole public is ‘hardly less

virulent for being privately administered.’ Smith v.

People of California, 361 U. S. 147, 154, 80 S. Ct.

215, 219, 4 L. Ed. 2d 205 (1959).”

The Court concluded:

“... The actual malice test, designed to give

practical effect to this commitment, precludes an

issue of fact in this case.” Jd. at 972 (footnote

omitted ).

Again, in Klahr v. Winterble, 4 Ariz. App. 158, 418

P. 2d 404 (Ct. App. 1966), the Arizona Court of Appeals

afirmed summary judgment for the defendant finding that

the plaintiff could not prove “actual malice” and stated:

“We acknowledge that we are influenced in part

in arriving at the conclusion that the plaintiff's

affidavit is insufficient by the nature of the case. In

New York Times the fact that a threat of lawsuit

is in itself an inexorable censor is recognized:

“*The fear of damage awards under a rule

such as that invoked by the Alabama courts here

may be markedly more inhibiting than the fear

of prosecution under a criminal statute.’ 84

S. Ct. at 724.

“If all actions of libel similar to this must go

to a full jury trial in order to ascertain whether

criticism by analogy, invective and satire is believed

4F

Appendix F

in ‘good faith’ to be ‘true’, the light of freedom of

speech and press as enunciated in New York Times

will be frustrated.” Jd. at 170, 418 P. 2d at 416,

In Time, Inc. v. McLaney, 406 F. 2d 565 (5th Cir.

1969), cert. denied, 395 U. S. 922 (1969), the Court con-

sidered, as in Keogh, an appeal from a denial of

judgment in a libel action. It pointed out that consideration

of such interlocutory appeals was an unusual practice, but

that it was justified in cases of this kind because “the fail-

ure to dismiss a libel suit might necessitate long and ex-

pensive trial proceedings, which, if not really warranted,

would themselves offend the principles enunciated in Dom-

browski v. Pfister, 380 U. S. 479, 85 Sup. Ct. 1176, 14

L. Ed. 2d 22, because of the chilling effect of such litiga-

tion.” 406 F. 2d at 566.

The Keogh doctrine has been followed in a number of

other First Amendment cases, which have granted sum-

mary judgment in applying constitutional principles. New-

Journal Co. v. Gallagher, 233 A. 2d 166 (Sup. Ct. Del.

1967); Hurley v. Northwest Publications, Inc., 273 F.

Supp. 967 (D. Minn. 1967) aff’d on opinion below 398 F.

2d 346 (8th Cir. 1968); Thompson v. Evening Star, 394

F. 2d 774 (D. C. Cir., 1968), cert. denied, 393 U. S. 884;

Walker v. Pulitzer Pub. Co., 394 F. 2d 800 (C. A. 8

1968) ; Ryan v. Dionne, 28 Conn. Sup. 35, 248 A. 2d 583

(1968) ; Tagawa v. Maui Pub. Co., 448 P. 2d 377 (Sup.

Ct. Hawaii, 1968) cert. denied, 396 U. S. 822 (1969).

That same summary judgment doctrine has specifically

been followed in several recent Time Inc. cases in which

the Time Inc. editorial process has been fully disclosed to

the Court. E.g., Time, Inc. v. McLaney, 406 F. 2d 565

(C. A. 5, 1969), cert. denied, 395 U. S. 922 (1969) ; Bon

BLEED THROUGH POOR COPY

— ae

SF

Appendix F

Air Hotel, Inc. v. Time, Inc., 295 F. Supp. 704 (S. D. Ga.

1969) ; Sellers v. Time, Inc., 299 F. Supp. 582 (E. D. Pa.

1969) aff'd, F. 2d (3d Cir. 1970) ; Cerrito

v. Time, Inc., 302 F. Supp. 1071 (N. D. Cal. 1969).

Similar recognition of the necessity for summary dis-

position whenever possible in First Amendment cases ap-

pears in the opinion in the United Medical case.

In short, this case squarely presents to this Court the

constitutional right to summary disposition referred to in

New York Times and Hill, applied by the Circuit Courts in

Keogh, Thompson, McLaney and United Medical, and

followed by numerous District Courts. If summary judg-

ment be net granted, then rights of libel-suit defendants

recognized in New York Times and subsequent cases, de-

signed to preserve the public interest in a free and robust

press, are illusory. That is the necessary constitutional

corollary to the New York Times doctrine.