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

FILE COPY APR 27 1970

“JONNP—DAVIS, CLERK

IN THE

Supreme Court of the United States

Ocroser TERM, 1969

No. 1490

TIME, INC.,

Petitioner,

v.

MARY ALICE FIRESTONE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Harortp R. MEDINA, Jr.,

One Chase Manhattan Plaza,

New York, N. Y. 10005

Attorney for Petitioner.

Frates, Fay, FLoyp & PEARSON,

Wituam S. FRATEs,

Larry S. STEWART,

12th Floor,

Concord Building,

Miami, Florida 33130

W. Dennis Cross

CravATH, SWAINE & Moore,

One Chase Manhattan Plaza,

New York, N. Y. 10005

Of Counsel.

INDEX

PAGE

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

OPINION AND ORDERS BELOW ...............000: 1

IIE as ce cevssvserinceseeveesseonnses 2

QUESTIONS toi yanse 3 ccs 2

CoNSTITUTIONAL PROVISIONS INVOLVED ........... 4

ENE OP DEE GD ce ccccccccescccessscses a

REASONS FOR GRANTING THE WRIT .............. 7

A. Applicability of the Constitutional Standard ... 10

B. Necessity for Summary Judgment ........... 15

CONCLUSION 2c cccccccccccccccccsovccvcces jaake 21

APPENDIX A

District Court Opinion and Order Denying Motion

for Summary Judgment and Certifying Order as

Appropriate for Appeal ............cceccee Al

APPENDIX B

Fifth Circuit Order Denying Leave to Appeal ..... Bl

APPENDIX C

Fifth Circuit Order Denying Petition for Rehearing Cl

ii

TABLE OF AUTHORITIES

PAGE

CASEs:

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

- (1967) 8

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

(S. D. Ga. 1969)

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

Cal. 1969)

Curtis Publishing Co. v. Butts & Associated Press

v. Walker, 388 U. S. 130 (1967) 8, 9, 12, 13, 20

Dombrowski v. Pfister, 380 U. S. 479 (1965) ....9, 16

Garrison v. Louisiana, 379 U. S. 64 (1964) ....8,9, 19

Harkaway v. Boston Herald Traveler, 418 F. 2d

56 (1969)

Henry v. Collins, 380 U. S. 356 (1965)

Hurley v. Northwest Publications, 273 F. Supp. 967

(D. Minn. 1967), aff’d, 398 F. 2d 346 (8th Cir.

In re 620 Church St. Corp., 299 U. S. 24 (1936) ..

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

404 (1966)

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

(Del. 1967)

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

8, 9, 10, 12, 13, 14, 15, 19, 21

Pape v. Time, Inc., 419 F. 2d 980 (7th Cir.), rev’g

294 F. Supp. 1087 (N. D. Ill. 1969)

_Rosenblatt v. Baer, 383 U. S. 75 (1966) ....8, 9, 10, 12

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

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

Feb. 24, 1970)

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

(1968)

St. Amani v. Thompson, 390 U. S. 727 (1968) .

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

1969) 8, 12, iB

ee een TLIDHOIUCH POOR COPY

ili

PAGE

Tagawa v. Maui Pub. Co., 448 P. 2d 337 (Hawaii

1968), cert. denied, 396 U. S. 822 (1969) ....8,9, 18

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

1968), cert. denied, 393 U. S. 884 (1968) ....8,9, 18

Thornhill v. Alabama, 310 U. S. 88 (1940) ....... 13

Time, Inc. v. Hill, 385 U. S. 374 (1967) ... 8, 9, 11, 15

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

cert. denied, 395 U. S. 922 (1969) ....8,9, 12, 15, 18

United Medical Laboratories, Inc. v. Columbia Broad-

casting System, Inc.,404 F. 2d 706 (9th Cir. 1968),

cert. denied, 394 U. S. 921 (1969) .....-- 8, 9, 12, 18

United States Alkali Export Ass'n, Inc. v. United

States, 325 U. S. 196 (1945) ....--- eee e rere

Walker v. Pulitzer Publishing Company, 394 F. 2d

800 (8th Cir. 1968) ......-eeee reece eect eee 8, 18

Washington Post v. Keogh, 365 F. 2d 965 (D. C. Cir.

1966), cert. denied, 385 U. S. 1011 (1967) .8, 9, 17-18

Unitep STATES CONSTITUTION:

Amendment I ....... cece eecc cee c eee ceeeeeee 4

Amendment XIV §1 ....--- see eeee ee eereeees 4

Unitep STATES STATUTES:

2B U. S. C. §1254(1) ... eee e cere ener e cess 2

2B U. S. C. §1292(b) ..--- eee eee e recess 1, 2, 4, 7

2B U.S. C. §1651(a) ...- eee reece e ee eeeees 2

OrHER AUTHORITIES:

Brennan, The Supreme Court and The Meiklejohn

Interpretation of the First Amendment, 79 Harv.

L. REV. 1 (1965) ....--seceeeceeeeecreccess 13

Pedrick, Freedom of the Press and the Law of

Libel: The Modern Revised Translation, 49 Cor-

NELL L. Q. 581 (1964) ..----eeeeeeeeeeeess 10-11

re eent TLIDALICL DAOD CHDpDY

IN THE

Supreme Court of the United States

October Term, 1969

No.

TiME, INc.,

Petitioner,

v.

Mary ALICE FIRESTONE,

Respondent.

4.

ue

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Plaintiff seeks a writ of certiorari to the United States

Court of Appeals for the Fifth Circuit from an order of

that court, denying petitioner leave to appeal from an order

of the United States District Court for the Southern Dis-

trict of Florida, Miami Division, which denied petitioner’s

motion for summary judgment. The District Court had

previously certified its order as appropriate for appeal pur-

suant to 28 U. S. C. § 1292(b).

OPINION AND ORDERS BELOW

The original opinion and order of the District Court

denying the motion for summary judgment and certifying

its order as appropriate for appeal, entered December 2,

1969, is attached hereto as Appendix A. The order of the

Court of Appeals for the Fifth Circuit, denying leave to

appeal, entered January 29, 1970, is attached hereto as Ap-

pendix B. The order of the Court of Appeals for the Fifth

2

Circuit denying petitioner’s application for rehearing, en.

tered March 24, 1970, is attached hereto as Appendix C.

JURISDICTION*

The order of the Court of Appeals denying petitioner’s

leave to appeal was entered January 29, 1970, and the

order denying petitioner’s application for rehearing was

entered March 24, 1970. The jurisdiction of this Court is

invoked under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED

1. Is a publication dealing with matters of public in-

terest protected from civil liability, absent a showing of

knowledge of falsity or serious doubts as to truth, by the

constitutional guarantees of freedom of speech and the

press?

2. Is the protection lost by relating an incident illus-

trative of that matter of public interest, merely because the

matter of public interest could have been reported without

the illustration?

3. Is a publication dealing with the private uses of

wiretapping, bugging and electronic invasions of privacy

a matter of public interest?

4. Is a former beauty queen who has married a mil-

lionaire socialite, received great attention in social circles

*Since no specific authority _ been found (although we do not

believe one is needed) allo $ petition from a denial of an =

lication under 28 U. 's C. § 1502(0). by petition filed simultaneo

erewith, petitioners are kf applying for common law writs of

certiorari pursuant to 28 U. S. Sa tel directed to the United

States Court of Appeals for the Fifth Circuit and the United States

District Court for the Southern District of Florida, Miami Division,

in accordance with the doctrines establishe1 by this Court in In re

620 Church St. Corp., 299 U. S. 24 (1936), and United States Alkali

Export Ass'n, Inc. v. United States, 325 U. S. 196 (1945).

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3

for over ten years, and is party to a much-publicized divorce

proceeding in which private detectives and electronic sur-

yeillance have been utilized on both sides a “public figure”

within the meaning of the constitutional protection ?

5. If the protection is available, is an issue of fact

created by an offer of proof that the publication in question

js untrue and that the publisher was negligent in failing to

discover its untruth, where it has been established that the

publication was made without any doubts on the part of

any responsible person as to its truth?

6. If the protection is available, is an issue of fact

created by an offer of proof that the publisher’s reporter in

the field bore personal ill will toward the plaintiff, without

an allegation that either he or any of those responsible for

the publication had knowledge of its falsity or serious doubts

as toits truth?

7. Was the publisher justified in relying on a dispatch

from its reporter in the field whom the publisher had known

for some time and who had a high reputation for accuracy

and trustworthiness ?

8 Did the District Court err in denying summary

judgment in an action for libel when it was uncontroverted

and uncontrovertible that:

(a) the article in question involved a matter of

legitimate public interest,

(b) the publication was based upon the report of an

experienced and nationally respected journalist, and

(c) both the journalist who made the report and

those responsible for publication were free from any

doubt whatsoever as to the truth of the publication and

remain free from such doubt to this day?

9. Did the Court of Appeals err in refusing to grant

petitioner leave to appeal from the District Court’s denial of

4

summary judgment, following the District Court’s certifica.

tion of the appeal pursuant to 28 U. S. C. § 1292(b)?

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provisions involved are the First and

Fourteenth Amendments, United States Constitution,

Amendment I, Amendment XIV, § 1.

“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

redress 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 wherein

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

within its jurisdiction the equal protection of the

laws.” U. S. Const., amend. XIV, § 1.

STATEMENT OF THE CASE

Mary Alice Firestone, the plaintiff, is a former beauty

queen, third wife of Palm Beach society millionaire Russell

Firestone, and party to one of the most publicized divorce

suits of the decade. She seeks to recover six million dollars

in compensatory and punitive damages from the petitioner

herein for injury which she claims to have sustained as a

result of an allegedly defamatory article appearing in the

May 20, 1966, issue of Life Magazine entitled “Snooping

Electronic Invasion of Privacy”. The article complained of

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5

contains a photograph of the Firestones with an accom-

panying caption which reads:

“Two-Way Snoop. In Florida, where electronic

eavesdropping is frequently employed in divorce

suits, private eyes like Jack Harwood of Palm Beach,

shown above with some of his gear, do a thriving

business. Harwood, who boasts, ‘I’m a fantastic wire

man,’ was hired by tire heir Russell Firestone to keep

tabs on his estranged wife Mary Alice. She in turn

got one of Harwood’s assistants to sell out and work

for her and, says Harwood, ‘He plays just as rough

with the bugs as I do.’ A court recently ordered

Russell and Mary Alice (right) to stop spying on

each other.”

Mrs. Firestone had filed suit for separate maintenance

in November 1964, and her husband had counterclaimed

for divorce on the grounds of extreme cruelty and adultery.

In her suit, according to the Miami Herald, she complained

about the surveillance activities of private detectives hired

by her husband. During the pendency of the action, in

January 1966, it was reported that a court order had for-

bade “surveillance by private detectives and wiretapping

telephones or any other such tactics” by either party. On

April 16, 1966, the same order was again reported by the

Herald in connection with a $100,000 suit filed by Mrs.

Firestone against a private detective for “openly shadow-

ing her”.

Meanwhile, wiretapping and eavesdropping—made pos-

sible on an ever greater scale by the increased sophistication

of available equipment—had become a matter of great pub-

lic interest and concern. The questions raised by the in-

creasing frequency of their use and their great potential

for destruction of privacy had led to a widespread public

debate which continues to this day. In the spring of 1966,

6

Life Magazine began work in a feature article on the sub-

ject, and Life stringer David Chandler was assigned to

investigate the nature and prevalence of snooping activity

in New Orleans and Florida.

Chandler, an experienced reporter, undertook a detailed

investigation during which he learned of the activities of

Jack Harwood, a Palm Beach private detective who ciaimed

to be a “fantastic wire man”. Harwood had been hired by

Russell Firestone to keep tabs on Mary Alice and to lend

his assistance in the then pending divorce suit. Chandler

felt that the role of electronic surveillance in the notorious

Firestone divorce was an ideal illustration of the private

uses of bugging and wiretapping techniques with which

the Life article was to deal.

Chandler’s interest was heightened when he learned that

Carl Geisler, a former assistant of Harwood’s, had “sold

out” to Mary Alice. He first learned this from Harwood,

then confirmed it with Geisler and Mrs. Firestone, and with

Mrs. Firestone’s attorney, Joseph Farish, Jr. He also

learned that the court in which the divorce case was pend-

ing had ordered the Firestones to stop spying on each other.

The methods employed by the investigators during the

divorce proceeding, as well as Geisler’s switch in allegiance,

convinced Chandler that this story was of particular sig-

nificance, not only as an illustration of snooping activities,

but as an example of the opportunities for the double-cross

inherent in such practices. He therefore included the story

in his dispatches to Life.

Chandler’s dispatches were received by Life editor

Richard Billings, who then proceeded to write the “Two-

Way Snoop” caption based on those reports. Because of

Chandler’s long and satisfactory relationship with the mag-

azine, and his consistent accuracy and trustworthiness as a

correspondent, Billings had no hesitation in relying on his

dispatches. In addition, Billings had the caption rechecked

—

7

by researcher Alan Patureau and by Chandler himself.

The caption as it appeared was in complete accord with the

results of Chandler’s investigation. No one on Life’s staff

had then or has today any doubt whatsoever as to the truth

of the caption.

Based on the foregoing facts, all of which appear from

undisputed depositions and affidavits of the principals in-

yolved, petitioner moved for sumtnary judgment in the

District Court on the basis that the publication was consti-

tutionally protected under the First Amendment guarantees

of freedom of speech and press because it concerned a

matter of legitimate public interest and was published with-

out knowledge of falsity or serious doubts as to truth.

Petitioner also moved the District Court, in the event that

it denied its motion to dismiss or for summary judgment,

to certify that its order involved a controlling question of

law as to which there is substantial ground for difference

of opinion and that an immediate appeal from the order

may materially advance the ultimate termination of the

litigation, which would provide the foundation for an inter-

locutory appeal pursuant to 28 U. S. C. §1292(b). The

District Court denied petitioner’s motion for summary

judgment and granted petitioner’s motion for certification

of an interlocutory appeal pursuant to 28 U. S. C. § 1292(b).

Subsequently, petitioner applied to the United States

Court of Appeals for the Fifth Circuit for leave to appeal.

By order dated January 29, 1970, the Fifth Circuit Court

of Appeals denied that petition. On February 10, 1970,

a petition for rehearing was filed in the Court of Appeals.

On March 24, 1970, that petition for rehearing was denied.

Certified copies of the record in the District Court and

in the Court of Appeals will be filed with this petition,

reference to which establishes the facts as set out above.

REASONS FOR GRANTING THE WRIT

This case presents an opportunity for this Court to

establish beyond doubt two propositions which, in petition-

—

8

er’s view, are integral elements of the protection afforded

publishers by the First Amendment guarantees of freedom

of speech and the press, have been squarely adopted by sey-

eral Courts of Appeals, but which the District Court below

declined to apply in this case. The first of these is that the

First Amendment insulates from civil liability any publica-

tion dealing with a matter of legitimate public interest, ab-

sent a showing that the publication was made with knowl-

edge of its falsity or with serious doubts as to its truth.*

The second is that where, as here, it is established on plead-

ings and discovery that no such knowledge or serious

doubts existed, summary judgment is not only appropriate

but is mandated by the First Amendment.**

*See, eg., New York Times v. Sullivan, 376 U. S. 254

(1964) ; Garrison v. Louisiana, 379 U. S. 64 (1964) ; Henry v. Col-

lins, 380 U. S. 356 (1965) ; Rosenblatt v. Baer, 383 U. S. 75 (1966);

Curtis Publishing Co. v. Butts & Associated Press v. Walker, 388

U. S. 130 (1967) ; Time, Inc. v. Hill, 385 U. S. 374 (1967) ; Beckley

Newspaper Corp. v. Hanks, 389 U. S. 81 (1967); St. Amant vy.

Thompson, 390 U. S. 727 (1968) ; United Medical Laboratories, Inc,

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

1968), cert. denied, 394 U. S. 921 (1969) ; Time, Inc. v. McLaney,

406 F. 2d 565 (5th Cir.), cert. denied, 395 U. S. 922 (1969);

Rosenbloom 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) ; Cerrito

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

of the District Court, which the Circuit Court declined to review, is

in direct conflict with these decisions.

**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 vy. 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. 822 (1969). The deci-

sion of the District Court, which the Circuit Court declined to review,

is in direct conflict with these decisions.

—

In denying leave to appeal, the Court of Appeals let

stand a District Court opinion which is in direct conflict

with applicable decisions of this Court and numerous lower

courts in declining to apply New York Times standards to

this litigation. Because petitioner is thus required to go to

the expense of a common-law libel trial, notwithstanding

the fact that the publication in question concerned a matter

of legitimate public interest and was published in the good

faith belief that it was true, a severe burden is placed on

its exercise of First Amendment rights.

We had thought that this Court by its language in New

York Times (p. 269), Garrison (pp. 74-5), Rosenblatt (p.

86) and Butts (pp. 150-152), by its direct holding in Hill

(pp. 387-8), although limited to privacy (p. 397), and by

its denial of certiorari in United Medical and McLaney had

clearly indicated its view that public interest in the subject

matter of an article was the basis for imposition of con-

stitutional protection. Apparently it is now necessary

explicitly so to hold. See, for instance, the recent decision

for the Court of Appeals of the First Circuit in Harkaway

v. Boston Herald Traveler, 418 F. 2d 56 (1969), which

still talks solely in terms of public official. This case presents

that opportunity. We urge that the Court avail itself of it.

We had thought that this Court by its reference to the

“chilling effect” of expense of trial in New York Times

(p. 279), Hill (p. 389) and Dombrowski (p. 487) and by

its refusal to grant certiorari from decisions granting sum-

mary judgment in Keogh, Thompson, United Medical,

McLaney and Tagawa, supra, had clearly indicated its view

that summary judgment was a necessary constitutional cor-

ollary to the New York Times doctrine. Apparently, it

is now necessary explicitly so to hold in order that respon-

sible journalists may receive that protection. This case

presents that opportunity. We urge that the Court avail

itself of it.

9

10

A. Applicability of the Constitutional Standard

Because in publishing the caption at issue in this case

it was reporting on a matter of legitimate public interest,

petitioner submits that it is entitled to the protection of the

First Amendment and that plaintiff is barred from recovery

unless the caption was published with knowledge of falsity

or reckless disregard of the truth.

The references to “public officials” and to the rule of

official privilege in New York Ties initially misled some

courts into restricting the constitutional doctrine there an-

nounced to statements made concerning persons holding

political office. This Court quickly moved to make clear,

however, that the basis for the protection was not to be

found in any such restricted interpretation. In Rosenblatt

v. Baer, supra, 383 U. S. at 84-85 n. 10, in rejecting the

suggestion “that we have tied the New York Times rule

to the rule of official privilege”, the Court cited with ap-

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

The Modern Revised Translation, 49 Cornet L. Q. 581

(1964). In that article Professor Pedrick stated the basis

for the New York Times rule as follows:

ce

°

. .. If a qualified “good faith” privilege is

needed to better assure open debate then the privilege

ought to extend as stated by Judge Burch of Kan-

sas to “all matters of public concern.” The logic is

simple. In modern democratic society the public

judgment makes itself felt on a great variety of sub-

jects in a great variety of ways, official and unoffi-

cial. If decision 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 pub-

lic concern” should thus become the key to the appli-

cation of the privilege recognized in the Times de-

cision.’”’ p. 592.

— ngs

11

Pedrick argued that the protection went far beyond com-

ment directed at public officials:

eee

. . - » But those matters which are of public

concern also go beyond the immediate province of

government. A threatened labor strike affecting 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, re-

tention, 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)

It soon became apparent that further expansion of the

privilege along the lines indicated by Professor Pedrick

was necessary if the clear demands of the First Amendment

were to be satisfied. As the Court observed in Time, Inc. v.

Hill, supra, in applying the protection to invasion of privacy

cases :

“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 corament 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. Su'livan,

supra, at 271-272....’” 385 U. S. at 388.

12

Then, in Butts and Walker, supra, the Court squarely

applied the New York Times standard to publications con-

cerning a football “fix” and racial integration, respectively,

notwithstanding that the plaintiffs were not public officials,

noting that the “public interest in the circulation of the ma-

terials here involved, and the publisher’s interest in cir-

culating them, is not less than that involved in New York

Times.” 388 U. S. at 154.

It is apparent that the true basis for the decisions of

this Court under the New York Times doctrine is to be

found in legitimate public interest in the content of the

publication. A number of lower courts have so held, and

have adopted “public interest” as the criterion for applica-

tion of the First Amendment protection. E.g., Rosenbloom

v. Metromedia, supra; Time, Inc. v. McLaney, supra;

United Medical Laboratories v. CBS, supra; Cerrito v.

Time, Inc., supra; Sellers v. Time, Inc., supra; Bon Air

Hotel v. Time, Inc., supra.

These cases have recognized that, since it is expression

which the First Amendment protects, it is the subject matter

of the expression and not the identity of the particular

plaintiff which must be the focus of the constitutional

inquiry. “The public interests protected by the New York

Times rule are interests in discussion, not retaliation.”

Rosenblatt v. Baer, supra, 383 U. S. at 84-85-n. 10. Thus,

the Court of Appeals stated in United Medical Laboratories:

“[T]hough limelight may be a factor in public

interest occurring, it can hardly be held to constitute

a condition for the right of public interest to exist.

Indeed, in the case of Mr. Butts at least, the factor

of limelight would seem to have been a relatively

subordinate one in the national publication involved.

“The primary basis of general interest in the

Butts situation would have to be regarded as the

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a ;

13

public’s right to be concerned over the nature and

significance of the things alleged to have been done,

with the persons said to have done them being

secondary elements therein.” 404 F. 2d at 712.

This view accords with Professor Meiklejohn’s thesis

that the First Amendment is the primary instrumentality

through which a free people exercises its sovereign decision-

making power. See Brennan, The Supreme Court and The

Meiklejohn Interpretation of the First Amendment, 79

Harv. L. Rev. 1 (1965). It is an unduly narrow interpreta-

tion of the principles announced in New York Times to

characterize them as merely a new privilege engrafted onto

the law of libel. Such a view leads to distinctions too easily

made and sanctions for expression too easily imposed. Their

basis is rather to be found in the statement in Thornhill v.

Alabama, 310 U. S. 88, 102 (1940), quoted by Justice

Harlan in Butts, 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”.

The publication is this case clearly dealt with a matter of

legitimate public interest. It is just such matters as to which

the First Amendment guarantees unfettered discussion.

The District Court’s assertion that, although the subject of

the private use of electronic snooping devices was of legiti-

mate public interest, the story of the plaintiff’s use of such

devices was not, is simply untenable. Such a rule would

make it virtually impossible to report on any matter of

public concern, since the publisher would be reduced to

making abstract assertions completely devoid of concrete

examples. Such writing would not be reporting at all, but

merely theorizing.

That the District Court could reach such a conclusion

illustrates the inadequacy of the “public figure” test without

14

an appreciation of the basic public interest foundation of the

New York Times rule. Here the plaintiff was a well-known

participant in a widely publicized divorce case, and thus a

“public figure” by any reasonable construction of the term,

But can it be doubted that the result should be the same if

she were not? The very essence of the Life article was the

use of wiretapping and bugging by private citizens for

private ends, and the need for public awareness of the

prevalence of such practices and of the inadequacy of present

laws addressed to the problem. To deny a publisher the -

protection of the First Amendment when it reports instances

of such practices would be to deny the public its right to be

informed on a matter regarding which it has a vital and

legitimate concern.

What the District Court has done in effect is to attempt

to exercise a purely editorial judgment by judicial process,

In Pape v. Time, Inc., 419 F. 2d 980 (7th Cir.), rev’g 294

F, Supp. 1087 (N. D. Ill. 1969), presently the subject of

another petition for certiorari addressed to this Court, the

Court of Appeals for the Seventh Circuit indicated that it

would require the publisher to include a fact which the

Court thought relevant but the publisher, in good faith,

thought irrelevant. Here, the District Court would have

the publisher exclude reportage of an incident which the

Court thought improperly included but which the publisher,

in good faith, thought to be relevant and appropriate as

well as true. Both kinds of judicial second-guessing of good

faith editorial decisions are prohibited by the First Amend-

ment.

This limitation on judicial power is and must be un-

affected by the degree of public notoriety which the plain-

tiff has acquired. To the extent, then, that the courts speak

of “public figures” in the context of the New York Times

rule, they must mean a figure in whom the public has an

interest or who is participating in activities in which the

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i5

public has an interest, and not necessarily a figure who

seeks publicity or is famous in his own right. Thus, the

activities of a foreign spy ring or a criminal syndicate

theretofore entirely unknown would be a subject of con-

stitutionally protected expression, notwithstanding the

strong preference for anonymity on the part of the indi-

yiduals involved. Such, in fact, was the case in both Time,

Inc. v. McLaney, supra, and Cerrito v. Time, Inc., supra,

and led the courts in those cases to adopt the public interest

test. Here, by indulging in the practices with which the

article was concerned, Mrs. Firestone became to that extent

a fair subject of public comment. In this sense, she became

a “public figure”. ;

It is clear that the essence of the protection afforded

publishers by the First Amendment lies in the public inter-

est test. This has been recognized by many courts and

commentators as well as in the language of this Court’s

opinions ; the time is now ripe to so hold directly and thus

to set the First Amendment privilege on the firm ground

which will make possible its more rational application in

future cases.

B. Necessity for Summary Judgment

This Court has correctly noted that the constitutional

infirmity of the common law of libel lies in the fact that

publishers “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.” New York

Times v. Sullivan, supra, 376 U. S. at 279. See also Time,

Inc. v. Hill, supra, 385 U. S. at 389. Thus, it is recognized

that the very maintenance of a lawsuit, with the uncertainty

and expense entailed in an extended trial of the facts, im-

poses a burden on publishers of statements on matters of

16

public concern which is inconsistent with the First Amend.

ment.

While the normal processes of trial and appeal are

normally considered adequate for the protection of syb.

stantive rights, the overriding importance of the First

Amendment guarantees of freedom of expression present

a clear exception, because when such rights are at stake tix

burden of trial itself may amount to an unconstitutional

hardship. Recognition of this fact has led this Court even to

enjoin state criminal prosecutions which threaten First

Amendment freedoms. In Dombrowski v. Pfister, 380 U. §,

479, 486-7 (1965), the Court said:

‘

*,... Because of the sensitive nature of the con-

stitutionally protected expression, we have not re-

quired that all of those subject to overbroad regula-

tions risk prosecution to test their rights. For free

expression—of transcendent value to all society, and

not merely to those exercising their rights—might be

the loser .. . [W]e have, in effect, avoided making

vindication of freedom of expression await the out-

come of protracted litigation. Moreover, we have

not thought that the improbability of successful

prosecution makes the case different. The chilling

effect upon the exercise of First Amendment rights

may derive from the fact of the prosecution, un-

affected by the prospects of its success or failure.”

The necessary corollary to application of the First

Amendment standard in libel cases is that, when the de-

fendant publisher makes a proper showing of his editorial

process with respect to the challenged publication so as

to preclude the possibility that he published with knowledge

of falsity or reckless disregard of the truth, summary

judgment must be granted. That this is an essential element

of the constitutional protection has been recognized by a

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—

17

number of lower courts. Thus, in Washington Post v.

Keogh, supra, as here, defendant appealed from the trial

court’s denial of its motion for summary judgment. In

reversing, the Court stated:

“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 find 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, including news-

papers, desiring to exercise their First Amendment

rights are assured freedom from the harassment of

lawsuits, they will tend to become self-censors. And

to this extent debate on public issues and the con-

duct of public officials will become less uninhibited,

less robust and less wide-open, 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, 4

L. Ed. 2d 205 (1959).” 365 F. 2d at 968.

The Court concluded:

‘

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

practical effect to this commitment, precludes an

18

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

omitted )

The principle established in Keogh has been followed

in a number of cases where First Amendment rights were

at stake in libel actions. Time, Inc. v. McLaney, supra, like

Keogh, was a case in which the Court of Appeals reviewed

the trial court’s denial of summary judgment. Because of

the important First Amendment principles involved and

because the defendant had demonstrated by a showing of

its editorial process that it could not have had the knowl-

edge or recklessness necessary to defeat the constitutional

protection, the court reversed, noting that “the failure to

dismiss a libel suit might necessitate long and expensive

trial proceedings, which, if not really warranted, would

themselves offend the principles enunciated in Dombrowski

v. Pfister . . . because of the chilling effect of such litiga-

tion.” 406 F. 2d at 566. Summary judgment has also

been recognized as an indispensable part of the constitu-

tional protection in Thompson v. Evening Star, supra;

Walker v. Pulitzer Publishing Co., supra; United Medical

v. CBS, supra; Cerrito v. Time, Inc., supra; Sellers v. Time,

Inc., supra; Bon Air Hotel v. Time, Inc., supra; Hurley v.

Northwest Publications, supra; Tagawa v. Maui Pub, Co.,

supra; New-Journal Co. v. Gallagher, supra; and Ryan v.

Dionne, supra.* This Court denied certiorari in Keogh,

Thompson, United Medical, McLaney and Tagawa.

No issue of fact under the constitutional standard has

been presented in this case. Uncontradicted testimony of

those responsible for the caption has conclusively estab-

lished their good faith in the accuracy of the publication.

Far from being chargeable with knowledge of falsity or

serious doubts as to truth, petitioner represents to this

*Petitioner was the defendant in McLaney, Cerrito, Sellers and

Bon Air. The editorial process upon which the courts relied in those

cases was substantially the same as that involved here.

19

Court today, as it did to the District Court, that it still be-

lieves the publication to be true in every respect..

Apparently the District Court does not disagree with

itioner’s contention that it published the caption with a

good faith belief in its truth, although it is difficult from

a reading of the opinion to detect the exact basis for its

holding. Beyond the obvious result that the publisher was

held not to be entitled to summary judgment, the opinion

is singularly unenlightening. First it denies, without stating

a reason, that Mrs. Firestone is a public figure. Then it

concedes that the article concerns a subject of public inter-

est, but states that that does not apply to the individual

illustration of that subject which mentions the plaintiff. Fol-

lowing these assertions, the Court assumes the applicability

of the constitution and reviews some factual issues which

it says are unresolved but which have no bearing on the

publisher’s knowledge of falsity or reckless disregard of

the truth. Finally, the Court makes the gratuitous observa-

tion that Life could have written the article without men-

tioning Mrs. Firestone.

In view of the District Court’s opinion, petitioner con-

fesses to some puzzlement as to what it is expected to prove

at trial. The Court refers to Mrs. Firestone’s affidavit in

which she claims Chandler told her she would be sorry

after she rejected his offer to write a complimentary story

in return for sexual favors. It is clear from this Court’s

decisions, however, that intent to harm does not amount

to actual malice under the First Amendment standard ab-

sent a showing of knowing or reckless falsehood. Garrison,

supra, 379 U. S. at 73; Henry v. Collins, supra, 380 U. S.

at 357. Further, the knowledge of falsity or reckless dis-

regard of the truth which must be shown must be that of

“the persons . . . having responsibility for the publication”.

New York Times, supra, 376 U. S. at 287. Such knowledge

or recklessness is not present where it is shown that the

20

publisher relied on a dispatch which was filed by a reporter

of proven reliability and which is internally consistent ang

not inherently improbable in light of known facts. Butts

and Walker, supra, 388 U. S. at 156-59. The Court refers

to the fact that the Life staff relied entirely on Chandler

without conducting an independent investigation, but this

Court has already held that failure to investigate, even in

the light of awareness of “possible” falsity, is insufficient

to show “ ‘the high degree of awareness of . . . probable

falsity demanded by New York Times... .’” Beckley

Newspapers Corp. v. Hanks, supra, 389 U. S. at 84. In

short, the only thing that clearly emerges from the opinion

below is that petitioner, for exercising its First Amend-

ment right to report and comment on matters of public

interest, faces a lengthy and costly trial of issues which

are utterly irrelevant to the determination of the litigation.

The issue here is not whether the Life caption was true,

Petitioner submits that it was true, and, if necessary, can

prove that it was true. The issue is whether, consistent with

the freedom of the press guaranteed by the First Amend-

ment, respondent by bringing this action can force peti-

tioner to expend thousands of dollars in a trial when the

record on the motion for summary judgment shows that

the publication dealt with a matter of public concern and

that respondent cannot establish that petitioner published

the caption with knowledge of falsity or serious doubts as

to truth. If the publishing industry faced this prospect

every time it printed an article of public interest, a ready

weapon would be available to silence the press.

This case squarely presents to this Court a very real

threat to the freedom guaranteed by the First Amendment.

If petitioner is correct in its view of the First Amendment,

then it is entitled to summary judgment, and is so entitled

not merely as a matter of procedural law but as an indis-

pensable part of its substantive rights. It is petitioner's

substantive right to summary judgment which is at issue

21

here, and that right can only be vindicated by this inter-

jocutory appeal. If immediate review is not available, the

freedoms recognized in New York Times and subsequent

cases will prove illusory. If doctrines developed to protect

free expression are to be meaningful, it must be possible

to obtain appellate review of lower court orders such as the

orders here before running the gauntlet of trial. That is

the necessary constitutional corollary to New York Times.

CONCLUSION

When a person engages in activity which is an appro-

priate and legitimate subject of public comment and con-

cern, that person cannot defeat the constitutionally

guaranteed freedom of expression of a publisher who re-

ports that activity by raising spurious factual issues which

do not go to the publisher’s knowledge of falsity or reckless

disregard of the truth. Summary disposition in such cases

is required by the First Amendment, and this requirement

presupposes the necessity for review of orders denying that

right. For these reasons this petition should be granted.

April 15, 1970.

Respectfully submitted,

Harotp R. MEpINA, Jr.,

One Chase Manhattan Plaza,

New York, N. Y. 10005

Attorney for Petitioner.

FraTes, Fay, FLoyp & PEARSON,

WittiaM S. Frates,

Larry S. STEWART,

12th Floor,

Concord Building,

Miami, Florida 33130

W. Dennis Cross

CravATH, SWAINE & Moore,

One Chase Manhattan Plaza,

New York, N. Y. 10005

Of Counsel.

Al

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

No. 66-907-Civ-EC

ey

vv

Mary ALICE FIRESTONE,

Plaintiff,

vs.

TiME, INc.,

Defendant.

a.

vv

ORDER DENYING SUMMARY JUDGMENT

This cause came on upon defendant’s motion for sum-

mary judgment. The Court of Appeals has held that the

complaint, as amended, adequately states a cause of action

for libel per se and libel per quod. Firestone v. Time, Inc.,

414 F. 2d 790 (5 Cir. 1969). The alleged defamatory

language need not be re-quoted here.

Defendant first contends that the article was constitu-

tionally protected under the docrine of New York Times

Co. v. Sullivan, 376 U. S. 254 (1964) and the subsequent

- cases that have expanded those concepts. The court is of

the opinion that the plaintiff is not a “public figure” under

those authorities. And, while the general subject of eaves-

dropping may be considered a “matter of great public con-

A2

Appendix A

cern,” certainly the plaintiff’s private marital difficulties

as referred to in the article, are not of that character. Thus,

while the general subject matter of an article might be pro.

tected, it does not follow that every particular reference

therein is similarly immunized. It should also be stated

that the fact that a publisher sees fit to refer to a particular

individual in print does not establish the “public” character

of the person or reference. The law in this area has not

stretched so far as to allow the publisher to create its own

defense to possible litigation.

Assuming the applicability of the constitutional defense,

however, the plaintiff must come forward with evidence

sufficient to show actual malice or reckless disregard for

the truth. The article in question was researched and writ-

ten (subject to editorial deletion) by one David Chandler,

a “stringer”* employed by defendant. In support of its

motion, defendant has submitted Chandler’s affidavit and

copies of his working notes. Chandler, by affidavit, states

that he “never entertained any doubts as to the accuracy of

the material contained in that article.”* Richard Billings,

the Life reporter ultimately responsible for the text of the

article, stated by affidavit that “I relied entirely on Chand-

ler’s dispatches and on oral reports of telephone conversa-

tions Life reporter Patureau had had with Chandler.”

In opposition to the motion, plaintiff has submitted

the affidavit of plaintiff and Patureau’s deposition. Mrs.

1A “stringer” is a reporter who works on a commission or hour

basis. He is not a member of the full-time reporting staff and 1s

assigned to cover matters that do not warrant coverage by full-time

rters. Deposition of Patureau, pg. 16.

2It should be noted that while Chandler’s notes contain the con-

clusion that Carl Geisler, Jack Harwood’s assistant, “sold out” to work

for plaintiff, there is nothing in Chandler’s notes to indicate that

plaintiff played any active role in procuring this transfer of allegiance,

—_ - ——— - -- Fr” * — OS a rT ) Oa

— ey

A3

Appendix A

Firestone stated that she was approached by Mr. Chandler

who offered to write a complimentary story if she would

engage in sexual activity with him. When she refused,

Chandler “stated that she would be sorry.”

Patureau was the Life employee assigned to check

the article “for accuracy.” However, under the defend-

ant’s procedures then in effect, this only consisted of as-

certaining whether the final copy accurately reflected

what was submitted by the stringer. No independent ef-

fort was made to verify any of the statements so sub-

mitted and the article in question was published as sub-

mitted by Chandler. Patureau testified that no verifica-

tion was made or attempted, nor was it Patureau’s job

to do so.°

Clearly, the article could have been written in such a

way that plaintiff would not have been implicated. “Ad-

mittedly, journalistic flair and pungency might have been

sacrificed, but the law of defamation is not grounded on

considerations of whether or not the article in question

provides provocative or entertaining reading.” Ragano v.

$Patureau, resisting some degree of pressure, refused to sign an

affidavit that was submitted to him by defendant and which contained

the following language:

The entire article . . . [was] the subject of an intensive in-

vestigation, detailed and thorough checking and careful edi-

torial scrutiny. It was my duty, which I performed, to verify

the accuracy of each fact contained in that caption and I

checked each and every word to assure its accuracy. As a

result thereof, I formed the conclusion which I hold to this day

that everything in the article is absolutely accurate and true;

I have never and I do not now have any doubts concerning the

veracity and accuracy of any statement in the article.

(Plaintiff's ex 6 to Patureau’s deposition).

A4

Appendix A

Time, 302 F. Supp. 1005, 1010 (M.D. Fla. 1969). This

case presents issues of fact that should be submitted to a

jury.

Upon consideration, it is,

ORDERED and ADJUDGED:

1. That the motion for summary judgment filed on

behalf of the defendant, Time, Incorporated, be and the

same is hereby denied.

2. The defendant’s application for certification pur-

suant to Title 28, U. S. C. § 1292(b) is considered by the

Court to be appropriate in that this order does involve a

controlling question of law as to which there is substantial

ground for difference of opinion and a prompt appeal may

materially advance the ultimate determination of the liti-

gation.

3. An application for an interlocutory appeal shall

operate as a stay of further proceedings in this Court if

said application is timely filed. In the event that no such

application is filed this cause shall be scheduled for pre-

trial conference.

Done and ORDERED at Miami, Florida, on this 2nd day

of December, 1969.

Emmett C, CHOATE

SENIOR UNITED STATES

District JUDGE

cc: Jos. D. Farish, Jr., Esquire

Larry S. Stewart, Esquire

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B-1l

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

For THE FirtH CIRCUIT

Misc. No. 1566

4.

ww

Time, Inc., a New York Corp.,

Petitioner,

versus

Mary ALICE FIRESTONE,

Respondent.

dy.

v

On APPLICATION FOR LEAVE TO APPEAL FROM AN

INTERLOCUTORY ORDER

Before GEw1n, GoLpBERG* and Dyer, Circuit Judges.

By THE CouRT:

It IS ORDERED that leave to appeal from the interlocutory

order of the United States District Court for the Southern

District of Florida entered on December 2, 1969, in the

above styled and numbered cause, is hereby DENIED.

*Judge Goldberg took no part in the consideration of or decision

on this Application.

-.* ~

Cl

APPENDIX C

UNITED STATES COURT OF APPEALS |

FIFTH CIRCUIT ‘

OFFICE OF THE CLERK

March 24, 1970

To Att Parties Listep BELOw

Re: Misc. No. 1566—TimeE, Inc., Etc.

US.

Mary ALICE FIRESTONE

Gentleman:

You are hereby advised that the Court has today enters

an order denying the Petition ( ) for Rehearing i in t

above case. No opinion was rendered in connection th rt

with. See Rule 41, Federal Rules of Appellate Procedig

for issuance and stay of the mandate. By

Very truly yours,

Epwarp W. Wapsworrs, |

By Frances WoLFF

Deputy Clerk —

cc: Messrs. Larry S. STEWART 2

Wit.1aM S. FRATES

Mr. Harotp R. MEpINa, Jr.

Mr. JosEPH FarisH, Jr.

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