Opposition Brief — Sellers v. Time, Inc.

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PREME COURT, U. S.

IN THE

Supreme Court of the United States:

October Term, 1970.

No. 437.

% .

| WILLIAM W. SELLERS, THE SELLERS COMPANY, INC.

and SELLERS SERVICE, INC., si a

PRO cara AO Petitioners,

wns ae ¥ vy,

TIME, INC.,

ae Respondent.

| BRIEF IN OPPOSITION TO PETITION

. FOR A WRIT OF CERTIORARI.

Pur H. Strustnc - - © Harorp R. Meprna Jr.

Wiser H. Haines Jr. ~~ Cravatu, Swarne & Moore

Pepper, Hamitton & ; One Chase Manhattan Plaza.

ScHEETz New York, N. Y. 10005 ;

2001 Fidelity Building

Philadelphia, Pa. 19109 .

Attorneys for Respondent.

International, 711 So. 0th te Phila., Pa. 19143—Tel. SA 7-8711 Ares Code 215

INDEX.

: ; Page

CONNIE TIRE | oa ee Gia chat ee aa tag pate ]

Or ESTIONS yp Be RE ee Se enor Par Rn TS oy! 2

’ STATEMENT OF THE ST See as hae fee a aa triah 3

ARGUMENT 2.55 05.5.5 Per rerrTr ye ate eas : Pree OTe Tere 8

A. The Coles of Appeals Decision Correctly Held. That.

_ the Article Was Not Reasonably Capable of ‘a De-

~ damatory Meaning Undér Pennsylvania Law ...... 8

(1) The Third Circuit . Tested the Article's

Capacity for Defamatory Meaning gp Ac-

cordance, With Pennsylvania RM Wis ass 8

(2) The Third Circuit Properly Affirmed on a *

. (3) Petitioners’ Alternative Invasion of Privacy:

' Theory of Recovery Poa Ren et eres 13.

B. The District Court Decision Is 5 Cortes in* Holding That

the Time Article Was Constitutionally Privileged ...° 17

(1) ‘The First Amendment Protection Applies to.

Publications of Matters of Public Interest 18

(2) Respondent Is Entitled to "Summary Judg-

SP ELSIE ere UEP eT eee rere. Fe me 21

C. The District Court Decision Is Correct | in Holding T hat

- the Time Article W as ‘Priv ileged as a Fair Report:

of Judicial Proceedings Seabee a awed errr ery rey 23

CoNCLUSION ......... epee pe aire yer ere ere roree 2B

APPENDIX A—Opinion of the Court of Appeals for the Fifth

~ Circuit in Bon Air Hotel, Inc. v. ‘Time, Ine. [ No. 27 490,

May 6, _— ——-. re ae deaeee Cee Pre TTC ree “A-1

ee,

TABLE OF CASES. eae

A - es Page

Aquino v. Bulletin Company, 190 Pa. Super. 528, 154... 2d

422. (1959) ses ;

Alma Motor Co. é. Timken-Detroit Axle*Co., 329 U. S. 129 ;

Fe aN Ae OOS eee eon 8 alee S

Beckley New spapers. Corp. v. Haiks, 889 LS. 81 °(1967) .. 18

Birl v. Philadelphia Kleetric Company; 402 Pa. 297, 167 A. 2d

A REO ens ia sin asad ins er ee ree a ee 11

Bogash y. Elkins, 405 Pa. 437, 176.A. 2€°677 (1902) ...... 9

Bon “Air Hotel, Inc. v. Time, Ine., No. 27,490 (Sth Cir, May .

0, 1970) {uinreported; opinion printed in Appendix A

hereto), affirming, 205 F, Supp. 704 ($. D. Ga. 1969). .19, 23

Boyer +. Pitt Publishing, Company, 324 Pa. 154, 188 .,203 |

ERIE? cai was Cyan ree Thi cas RK Veena ae oue REL Aes OO

Capital Tiaction Co. v. Hof, 174 U. S. 1 (1898) aN = ¥

Clark v. Allen, 415 Pa. 484, 204 A. 2d 42 (1964) .......: 9,10

Cresson vy. North American Co., 280 Pa. 373, ail A. +495

(i eG ess) oun wn basxie ss 4 ‘Sys pene 216,24

Curtis Publishing. Co. v. Butts, 388 LE. S. 130 (1967 were 18, 19

Friday v. Official Detective Stories, Inc., 233. F. Sapp. 1021

COD OWS.) eee eee eee aaeanes oo. Gt ee

Garrison v. Louisiana, 379 U.S: 64 (1964). 0.0.22... a 386, 19; 22

Grayson vy. Curtis Publishing Co., 72 Wash. 999, 436 P. 2d

756 (1967) Ee PENCE OEY eer eecacede. “ae.

Greenbelt Cooperative Publishing Associdtion, Inc. v. Bresler,

OFS. 4% WSar CIO) 5 esas APP ye re a eye ‘18 |

Grove Vv. Dun & Bradstreet, Inc., 308 F. Supp. 1068 (W. BD.

nes a Ar ana CA OR pak Le me 19

Helvering v. Gowran, 302 U. $2238 (1937) ...........008. 13

Henry vy. Collins, 380 U.S. 356 (1905) 2.0.26. oe yey.

Hormel vy. Helyering, 312 U, S. $52 (1941) ....... Sek renee

a5 235 + | tai

TABLE OF CASES (Continued)...

‘ , Page

Kernick v, Dafdanell Press, 428 Pa. 288, 236 .\. 2d 191 (19¢ 7) 9,10

‘LindA* Coat and Supply Co., Th ré, 255 F.2d 655 3d" Cir.

We as Sen Were So ee peeee ARG ©

‘Linn v; United Plant Guard Workers, gas US, 5. : . .

McAndrew v. Seranton Repub. Pub. Co., 364 Pa. 504, 72 A. 2d

EE oot) aa saa ae Pe STR ae gt ANOS 9

Mengel v. Reading Eagle Co. . 241 Pa. 367,88 A. 600 ( 1913 Wis ae.

New York Times Co. vy. Sullivan, 376 U. S. 234 (1964)

. Teg 26,80 17/48, 19/21, 22

Pickering v. Board of Education, 391 (U.S. 563° (1908) 6. 18, 19

—

Rosenberg v. Fleuti,'374 U.S: 449 (1903) .... saeyectauns ., 90

Rosenblatt_y, Baer,.a83.U. $..75 (1966) V2... .. re 18, 19

Resenbloom v. Metromedia, Inc., 415 F.2d 892 (1969), cert.

granted, 397. U."S, 904 Sane 1 Ena ye ER On Ee Oar . “19

St. Amant v. addict, 390 U.S. 727 §1908 ) races ee es ix 22

Sarkees y.. Warner-West re 349. Pa. 305, v/ A. 2d 344

20 ee oe 1 URE R ROS aS ee eee 29,1001]

_ Sciandra vy. | ynett, 409 Pa. - 698, 187 A. 2d 586 (19063) ‘ OG 2k. 24

Shafer. v. Reo Motors, Inc., 205 If. 2d 685° (3d Cir. ae ea 14

Time, «Ine. v. Hill, 385 U.S. 374 (A967) 0. ,18; 19, 22

Time, Inc: v. MeLaney, 406 F. 2d 565 (5th Cir.), cert. denied, |

VU. S. Ser ( .. Rae Ete ee? 19, 23

tnited Medical Laboratories, Inc. v. Columbia Broadcasting

System, Inc. 404 F.2d 706 (9th Cir, 1908), cert. dented,

DNS 9 I ce i e wd a AB ens - ya

Virgini: an Railway Company v. Mullens, 271 U.S. 220 (1926) 14

Vitex Manufacturing Co. v.G Hovernment of Vi irgin Islands, 351

I, 2d°313 (3d Cir. 1965) Pure ee Nana. 3 ea beets oe eo

Wachs v. Ramp Consulting Services, Iné., 28 Do & C. 2d 201

roy 3 P. Monte. Co. 0 Geena eee : Be 3p ae ee 24

Wi Eavionten Post ae Keogh, a0> fF. 2d 965 iD Cc tr, =

1966), cert. Venied- 385 1. S. 1011 (9007) .2......... 23

~ Wasserman v. Time, Inc., 424 F. oA 920 (D. ©. Cir. 1970) 22.19

é ° i

fo e a

. . UNITED STATES CONSTITUTION. .

- Page

farst “Amendment he ocean Naa a ee PE eee 17, 187 19, 22

Seventh Wmendment 2... 0... Heres beac ie ee ere 12

es ; > o

_ OTHER AUTHORITIES.

ee ee ee . Page eco ss

Restatement of Torts, $ OFF (1938) fi POe eS ee NO ee Se ee 9

Sank 6

a e ; “hes

Supreme Court ¢f the United States :

‘>

ae “1%

Ocropen Term, 1970.

° . > j na . *: :

Pot Rig aa: : °

* WILLIAM W. SELLERS, THE SELLERS COMPANY,

“INC. axp SELLERS “SERVICE, INC,

Petitioners,

go:*

U ;

TIME, INC., x

Respondent,

ER red Site meses ; %

* ler

_ BRIEF -IN OPPOSITION TO. PETITION

- \FOR A. WRIT OF CERTIORARI.

ae.

- OPINIONS BELOW.

. Petitioners seekoa writ of 8certiorari to™the United

States Court of ‘Appeals for the. Third’ Cireuit: which:

Mareh 20, 1970 affirmed ihe judement of the United States

Disttict Court for the Hastern District of Pennsylvania

dismissing the complaint in a libel Retion based on’ an

arti¢le published in Time magazine. The Third) Cireuit,

. 3 . . . ~

oh URS, : °. “e

. peta ma Brick in Opposition to Petition ; oes

agreeing with the District Conrt, held. that the ‘Rime article,

Was not capable ‘of a libe tope theaning under the Pennsyl-

ie a ee common law of libel.” The Third Cireuit’s opinion

Se ee Appendix 10 of Petition) is reported at 423 1. Yd SS7.

ae The District’ Court addition: ly granted respondent’ .

motion Tor summinary judgement on the grounds that the

TAne article was priv Heged asa fair report of judiet: il pro-

cood ings under the | onusylvania common lawtof dibel and

' Was also constitutionally privileged as a matter of law

under thet principles of New. York Times Co. v. Sullivan,

30h U.S. 24 (1964). “The ( ‘aut of Appe ‘als di not reac ‘I

eos these pr ivilege questions, Sey

The Distfict Court's opinion ¢ Appendix I of Pe tion)

is s reported at 299 FL Supp. o82 t ;

QUESTIONS: PRESENTED. oMever

a | Whether the Third © iPeuit correctly held «that the

ae article was not peas sonatbty capable of a defamatory

meaning, In accordance with’ established principles: of the

Peitnsylyvania common haw of ibe I. j

AS an, tame F it not, whether the District Court eorrectly held

Ve tigat ‘the Timé article: Wats privileged as a fair report of

as Stee. oes lal progedite® undefgthe Pennsylvanta common law

* hbely and was constitutionally privileged, tmder Neve.

; ee Tities Co. r. Sullivan, 376 Ue. 254 (4964) and re-

lated decisions of this Court. «.

Brief in Opposition to Petition ‘ tous oom

‘STATEMENT OF THE CASE..

This is 4 libel action! based on an article entitled

“Duffer’s Dilemma?” hich appeared in the Law section

of the May 6, 1966 issie of Time. magazine. > The article

reported on a personal injury action instituted-in the Dis

trict Court for the Eastern District of Pennsylvania against

Wilhiani Sellers and the Sellers Companies “by a business

acquaintance, James Walsh, whom ‘Selle rs had blinded in a.

freak golfing ace ‘ident. - The developme ut in the case that

prompted Time? s report was —Distiict Judge «Luongo’s

denial of Sellers’. motion for summary: judemeit in which

“plaintiffs asserted: that "W alsh had assumed the risk of:

Sellers’ “impossible? * shot which had-been hit laterally |

and to the rear of the tee. — - =

The decision tha{ the defénse of assgumption of risk

was inapplic: tbte because Walsh was hit hy a wild shot

while in a place of supposedly perfect safety wats reported

and summarized in, Sections 1-and.2 of the April 19, 1966

issue of United States Law Ww eck, 34 U.S. L. W. LINGO, 2 2: 263,

—where it was seen by the editor of the Law séetion of Ti iImes-

magazine (App. 123-24) .2 -Time’s Philadelphia vorrespond-

1. The. petition erroneously desetibes’ the 2étion’ as “being “for

libel and i invasion of privacy ‘Ce. g.. p23). The ‘complaint. sowhds:

solely in libel: it contams no language which, even remotely suggests

a privacy cause of action: Petitigners tive proceeded excluxiv

on a libel theory, both opinions | below describing and treatimg the

action as for ‘libel only. ° Individual petitioner Sellers first @ontended

“that his cause of action may also be sygtained under Pennsyi-

vania-common law principle of invasion of agree vey

tehearng by the ‘Third Cireuit, tiled April 3, 1970. fhe petition for

rehettireagompl: titted that the: Court ol Appei a ‘completely over-_.

‘looked: and failed even to discuss-tiie fhyasion gf priv: CV we a it

‘it did not exist,” based.on an-oblique reference to conimon Tart, inva-

‘sion is privacy in a footnote in petitioners’ reply brief.

References to the Apperidix containing: the design: ited por-

tions: of the record on appeal m the Third Circuit are cited herein :

as “ App.” ea | te

etition tor *

<—

Brief in Opps jion to Petition

“ent review wed thie District Court file it WV alsh v, Selle 1s, and ©

~ forwarded da copy of Suilge Luongo’s opinion. to. Neiv York

with a memorandum saummiar izing the depositions: of W alsh

and Sellers i in that action (App. 18). The Time artiele Was

based on Judge Luongo" s opiiton and the sword deposition

testimony of Se llers, taken in the W alsh'action. The : article ;

owas prepared i indraft (App.46), and then edited, revie wel

liy Time's Managing I Vitor, écheeked for accuracy by vw re-

‘searcher and reviewed by a, Professor of Law at Colambia

University prior to. publication (App. 18). are

Sellers testified his depesition in Walsh ve. Sellers

that"on the day of the accident he was at a golf dinner and

outing of the Oil Trade NXssoeiation of Philadelphia, and

was there on the business of Sellers Company to solicit

‘sales and make arrangements for “the putchase or sale of

products ised by his company: Tis admitted intent in

playing golf that day was to-further the profits of Sellers

Company. He also’ stated that Walsh was {fin a.position

sto, help me as: well in recouime fing: our produc ts’? (App.

2 3). He further Yestifie d.thad he sid Tot have it playing

membership’ at any club, and-tiat he played golf **maybe

“two, maybe three, five, maybe half a dozen dimes a year’? at

the. various outings he‘went to-(App. 5). As ‘to his Ae

prowess, Sellers stated’ that he-avould generally expect ‘t¢

go out and sheot 1002105, something like that?’ “Ibil.):

With respect to the accident, Selters admitted he was usc

able to remember “Oxnetly What: happened, but thought that

in swinging, the toe of his club connected with’ the’ ball and

instead of going forward, it hada spin on it which made it

curyt backw ards and to the side. fe did not de ny that the

hall struck Walsh i in the eye (App. 6-7).

Time’s article, which reported a judicial decision ‘that

hola the defénsg of assumption of risk inapph cable in a

personal sinjuty actiof arising ott ot a wild galt cbyive

*. R o& .

“ shot, is set out im full tm the opinions be low. Although ,

“ .

- >

Brief in Opposition to Petition.” o

b i a

deseribed by. the Court as an “impossible”

dealt with a matter of public interest. The ¢ article, which is. | |

written in a lively prose style, which petitione rs charac *

terized. as ‘flippant’? and “smart alecky’’, it is obviously

not.def famatory. ne ‘i vo |

Nonethe loxs petitione rs filed-a libel setion on May 26,

1966 cliiming that the article WaeNtalse and defamatory.

Sellers contended .the article libeled him: because (1) i

deseribed him as a ‘*duffer”? and: said that Sellers’ eame

Was running true ‘te form’ > ofvthe day Ww alsh was ‘struc ‘k °

with the bal’ ;,(2) it stated thitt he ‘“Odaysevolf for busimess

rather than plewsure’

= ane (3) it stated’ that. ‘At the third tee, iis mind on a

potential deal , Sellers hit the ball so. awkwardly that. it

flew to the rear and struck oe of. his partiers, James

Walsh’... Asa result, Walsh was blinded in his left eye.’

The libelous mreaning ‘Sellers aseribed to these staie-

ments was that they portrayed him.as an overly material-

istic oer crassa man, for whom business suecess overrides all.

concern for others, as well i as a stupid, awkward and in-

competent person.

In support of their complaint petitioners sindértosk OX-

tensive pretrial discove Ty, Inc lnding (1) reeeiving answers

to two sets of interrogatories which set forth in detail the

editorial. process of respondent; (2) examining the entire

—editérial reference file of. respondent relating to the article;

and (3) .deposing at.length cach of the five individuals who

e, participate ‘din the preparation of the articles

On August 2, 1968 Time filed a motion to dismfsss the

complaint on the eround the . article was not capable: of.

defamatory meaning as‘a matter of law,.and for summary

judgment on ‘the grounds the, article was ‘constitutionally.

priv Beare under New York Times and privileged asa fair

shot, ¢learly”

and “was working while golfing” at

pete Lave Yi ‘ae § teteee ts tee |

— 7)

t Opyosilion’ to Petition ‘

report of jtidieial preceedings Gudon the. Pennsylvania

common law of. libel.. he four members. of Time gnaga-

Zine’s New York editorial ‘staff who “participa ed) in the

Sufirmiod’ their bodiet i in the truth

of the article, both in the (epositions taken ‘by petitioners

“and in affidavits filed in’ support of respondent's motion.

preparation of the artivlé

Petitioners submitted no opposing aflidavits.

On May 12, f969, after completion of all rele vant. dis-

covery; District’ Judge Kraft ¢ratited respondent’s motion.

He based his alecision on. three grounds : First, .that the =

article was’ privileged under the common ‘daw of Perinsyl-

vania as, a fair report , of judicial prec vedings. Second,

. that the artide Was” constitutionally pri ileged beeatse it

“reported én a judici al decision of public sas ae peti-

tioners failed Yo offer evidence 7) i any: gehuine issue of.

‘factual malice’? In ihe view of Judge Kraft, “The, sup- \

porting affidavits attached to the motign together with the \

depositions and answers to. interrogatories, manifestly

demonstrate the complete Jack of any knowledge of the:

‘alsity of the article or reckless ‘disregard of the truth on

the part of Time’s employees. * 299 FL Supp at 386.

Third, that the article was not capable ot the det ‘amatory

meanings ascribed to it by. petitioners. Ss ey ae .

“Additionally, Judge Kraft found. that: the portions of

the article complaine «lof by petitioners, as set forth above,

avere “stibstantially accurate: * 299 F, Supp. ut 586, This |

“finding is material with respect to petitioner: Wifliam Sel

lers’ new, theory, not raised be low’, that the article invaded,

his common ‘law rightof privacy. ~~.

(i March : 20,1970 the Court of Neale for the. Third

. Circuit affirmed the District {‘ourt’s ‘judgment dismissing

the complaint, on the ¢ eround that the .article, fairly and

- reasonably’ construed, Was not ¢: rapadle of the Iibelous mean-.

-ings ascribed to it? by petitioners." Ace ordingly, the Court.

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“of Appeals found it unnceessary to consider the* privilege

On April 249 1970 _ the Third Circuit denied Sellers’

£7 + petition for. a rehe: aring. ae

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‘a ; Li it oap Oppo sition: fy Pe tition

"ARGUMENT.

A ‘The Court of pene Decision Correctly Held That the

Article Wa’ Not Reasonably Capable of a Defamatory

- Meaning Under aa haan Law.

Ii holding. that the: Time aitinte Was not eapable of |

the defatnatorvaqeiuiigs attributed to it by petitioners, the”

Third Circuit coy fe fet ly applied established principles of the

Penusyivania commer law of libel. Moreover, the Court of

Appeals was correct in concluding that the District ‘Court

Ate Kratt’s opinion makes

al-o°~o Wedd. as a reading ef

plain. But even Third Cireuit did misread Judge

I oraat't On Wee of the article S capacity for-defumatory

re, it property disposed of this action on & common -

aw ground without, reaching and deciding the constitu-

tional privilege Issue, S)

Accordingly, there is nothing ae this C ‘onrt to review.

The Third Cireiit hae piyperly: decided a question of state

law, foe iv principles established and followed in a long

line of Pennu-vlvatia state court libel cases and, indeed, fol-

lowe i. in most if not all ot he iy Arne rican jurisdictions, There

js nothing new or novel inthe Third € ‘ircuit? s decision. It

Involves “we tse of iniportance 10 alfyone exee pt the party

Var litigants.

(1) The Third Circuit Tested the Article’s Capacity

, for Defamatory Meaning in Accordance With

Pennsylvania Law.

Petitioners ‘concéde, as they must, that the question of

Whether the artiele is capable of a, defamatory meaning—

thats, whether it can fairly and reasonably be construed to

have the libelous me anings ascribed to it by petitione rs—is

amatter of Jaw for the court under Pennsylvania law (P.

Brief in Opposition ti Petition,

10). Sarkees +. Warwer-West Shae ee 349 ‘Pa. 365, BOS, 37

A, 2d 544, 046 (1944): Bagash 1 Elkins, 405 Pa. 487, 440,

6 ALS Gil, Ts (1962 J - Clarke. Allen, 415 Pa. 484, 487, .

204 A. 21 42, 49 (1964): Nervivk e. Dardaugll, Riess? 42%

Pa. 288, 294, 256. A. 24 191, 54 ( 1962), 3 ‘Restatement Of

‘Torts 614 (1958). ¥ Petitioners also concede that the

——article’s capacity for defamatory meaning is to be tested

a the effect it is fai calculated produce, the im-

ae ession it would. yaturally engender, in the minds of the

; average persons among whonr ii is intended to cireulate—

that is, the average Tipe reader (PL 9). Boyer ee Pitt

Publishing Coinpauy, M24 Pal dod. 157, 188 A) 203, 204

(1936). fae 4 pee este

This is preeisely what the Court of Appeals did, with

painstaking care, The Court analyzed cach of the sections

of the article petitioners Gomplained about and the libelous

meanings ascribed to the words-by the innuendos. It cor-

_ rectly pointed out that, under Pennsylvania law, inmendos:

may be used eat eee the defamatory meaning

attributed to words, but that’ they eannot be ased to intro-

duce. new matter, to enlarge the Natural meaning of, the

Words, or to put an nnfair and forced construction on the

article. ae Andrew re Serautou Repiah, Pub. Co. 3646 Pa,

@ 04, A427 (2 A, 2d 780, 785 (1950) ; Roaash, . Elkiuse supra,

405 Pa. at 440,176 \.2d at 679 (1962).

~The Third Circuit, correctly applying the above prin-

-¢ ciples of Penns viv: ‘mia daw, held that the statements in the

article. that Selle rh: uyS volf for business rather. than

pleasure”? and that his ‘feame was running true to form”

awhich were limited to one aetivity, golf--could. not: fairly

» and reasonably be construed to hi ive the meaning imputed

to. them hy petitioners, Nae Ivy .that they portrayed Sellers

3. Refererces to ghe Petition for a Writ of Ce erierae “are cited

heremoas RL. : :

10 ee Brief in Opposition to Petition

als an overly materialistic or crass man for whom business

success overrides all.concern for others. The Court also

held that the statement in the article that **. . . his mind

on a potential deal, Sellers hit te ball so awkwardly that

Jit flew to the rear and struck one of his partners, James

Walsh . 2 2°, fairly read, states that Sellers hit an. awk-

ward shot because he had his nuind on a potential deal;

that to so state was not defamatory because riot to eon-

centrate properly in golf, to hit a ball awkwardly in golf,

and to play golf for business are commonplace events; and

that the tragie result of these commonplace events (the

blinding of Walsh's léft eve) did not inspart a defamatory

meaning to the article because the average Time reader

“would recognize «that Sellers, the author of thie *timpos-

sible’* shot,. could) not have foreseen its occurrence or

consequences, 7

The Third Cireuit’s decision | is manifestly. be and

clearly in accord with Pennsylvania case law. Compare

Clarke. len, supra, a 1964 Pennsylvania Supreme Court

decision: holding an accusation that a United States sen-

ators voting record exhibited ‘communist tendencies’? was

not libelous as a matter of law; and Nernick v. Dardanell

Press, supraca Y967T decision of the same court holding an

accusation’ that a township auditor’ repeatedly brought

‘outrageons’* and **bascless”? charges ° ‘carefully eal-

culated to disparage the township and its officials’? which

cost the t taxpayers nroney to investigate was not libelous

as amatter of law. | |

The principles followed in Sarkees ve Warner-West

Corp:, supra, for determining capacity for defamatory

meaning, Which the: Third Cireuit relied on here, are the

law of Pennsylvania today. The three cases discussed at

some length in the petition as supporting petitioners’ posi-

tion-that the Tithe article *fwas at least capable of a de-

- famatory meaning’ ’ (P. 19) and as being in conflict with

» Brief in Opposition to Petition —— 11

Sarkees, correctly apply these same principles on the fssue

of capacity for defamatory meaning and do not support’

petitioners’ position: Friday v. Official Detective Stores,

Inue., 235 F.Supp. 1021 (KE. D. Pa, 1964) ; Birl?r, Philadel-

phia Electric Company, 402 Pa 297,167 A, 2d AT2 (1960) ;

Boyer v. Pitt Publishing Company, supra’ Tn Eriday and

Boyer, the articles were clearly capable of imputing crim-

inal conduct or invelvement on the part: of the plaintiffs ;

in Berl the slanderous statement was held capable of imput-

ing that, the plaintiff lacked honor and integrity, and was

not-a person to be relied-on, insofar as his business deal-

ings were concerned, because it categorically stated ‘that

his former employer would have no furtlfer dealings with

the plaintiff. . Ley

Petitioners misread and misquote ‘the Third Circuit's

opinion when they claim that the Court applied a test of

what the average Timé reader would ‘probably’? conclude

upon a reading of the article (P.11). No such test was

stated, or applied, as a ‘reading of the opinion — will

demonstrate. . ei

The issue of whether an article is ¢: apable ¢ fa de-

famatory meaning -is hot a fact issue under | eeatvatts

law or under the general common law of libel; Nor does

its resolution turn on a test which would find capacity for

defamafory meaning unless ‘‘construing the facts int the

light-most favorable to plaintiff’s position, reasonable men

could not differ on the non-defamatory nature of the cOm-

munication,’* as petitioners contend (P. 11). Qn the con-

trary, the test to be applied by the Court is ‘the effect the

article is fairly caleulated to produce, the impression. it

. The petition, at p. 18, quotes only the second of the two

newspaper articles involved in boyer. ‘the omitted first article is

the one principally relied on by the Pennsylvania Supreme Court its

being reasonablt capable of imputing persury on the part of the’

plaintiff. . : . :

News

1) > Brief in Op pas Vai yee ik fifton

\ ee a :

would uaturilly eneeneber, um thie aindbs) of the caverage ,

persagns amore whomeat is. intended to etrenhate ts "Boyes

PIP DP ublishtia Cu WME, SUP Ver, ;

Petitioners’ chum that ther Seventh Amendment recht

of trial by jury has been violated hy the Third Cirenit’s,

deeiston rothus w holly, tiseoneenved. The Seventh Amend

ment orieht te teal of envail actions by jury tia never heen

absolute, as this Court has held frofa the Deeinnine. See,

Capital Traction Co. v0. Hof, Ae BL SOTO CUSSS).

OObvioushy the sratutine af motiodis to dismiss for Fathire to

State a-elamm, for judement an the pleadines and for Su

miary: judement, om Appropruie eases as here, are net i.

eontiet with the rieht. ATE Ot tyre deetstotis, of this Court

cited ir tlie petition In suppert of petitioners ® elarm that

they have been deprived of ther right toca. jury trish in:

velve rulings by lower courts that the evidenee, was in

sufierent for subniission te a cdury, where the court under

took te resolve testinfontal conthets, Credibility. isstesand——

etherinmestions of Tact.

(2). Phe Third Cirenit Properly Aflirmed on a Conon.

Law Ground. ; be

"As the Court of Appeals points out its opintony itis

Gear from Judge Wratt’s épinion the Distriet Court ried

the Time varticle was net reasonably: capable of a de

famatery meaning. . Nonetheless, petitioners’ persist i

contention that the “Phird Cirenit- misconstrued: the

Metric! Conurt’s apinion and thus *tevaded the vital issues

of cothmen law and constitutional privilege which formed

basis tor the Distriet Court's holding’* (?. 9-10).* But

assuming petitioners are right. and the Third Cirenit

ndentawrong. it is clear that the Court of Appeals

PTO} ony: considered and decided the issue of the article's *

eapacity. for defamatory meaning without reaching the

Brief in Opposition to Petition . ae

privilege issues. Two principles are involved: EF RPst, as

this Gourt has he lel, Where (Wo sues are raised, aie of mon

constitutional ng ure anil the other of constitutional ature,

sunlit deersion of thie Hon Cots tittionall Issue would miake

inteeessary a decision of the cons litwtion: issue, a court.

of appeals should) decide the eat Alina Molo Co. we

Timken Detroit Aale Co. B29 Us Se 129, 1G (1946): Roseuw

berg e. Fiews Fiat. BR. we Rare Second, Court af

Appeals has the power to affirm a Distriet Court if the

result is correct even thoteh ats affirmmanee. is based son

vrounds not considered or relicd on below, and even thoneh

the -Distriet Court’s decision was based on imeorreet reason

Ing. Meleering v. Gowran, 802 US. 258, 240 (1987) Pater

Manufacturing Co. e. Government of VirguiTslands, 351

that the article was not reason: thly capable of a det famatory

meaning aus aomatter of law, if even the Distriet Court had

not so held or had applied the wrong lest in so holding,

(3) Petitioners’ Alternative Invasion of Privacy Theory*

of: Recovery.

Petitioner Se Hers asks this ( ‘ort te re vie Woon certio-

fo remand the action fo ihe District: Court on the issue of

invasion 6f privacy, claiming that the Distriet Court in turn

erred in not holding that Sellers was entitled to have the

Rodd Os, Ste (td Cir. 96D). Plainly, then, the "Phitd’

Cirentt had the power abd duty tocaffirm on the ground

vari the alleged error of the Court of Appeals ine failing : 7

privacy issue pissed upon by a jury. As already pointed

out, this alternative privacy theory of recovery was raised.

for the first time in the petition-for rehearing by the Third

Ciyeuit, based upon an oblique reference: tos it in. peti-

tioners’ reply brief, asserting that the Court of Appeals

had ‘‘completely’ overlooked and failed. even to discuss”?

‘Sellers’? footnote reference to the fact that ‘this cause of

14 dae Brief 7 Opposition to Pelition

“action may also be sustained under the Pennsylvania com-

mon law principle of invasion of. privacy’? (Pet. for Re-

hearing, px 9). Petitioners’ complaint sounds solely in

‘ uae : ‘. ‘ on : ae !

libel, At nos time did Sellers. claim or suggest ‘in’ the

District Court, directly or indirectly, that his: right of

privacy’ had, been mivaded by publication of the, Time

article. |

The*'Phird Cirenit follows me consistent practice of

refusing to consider issues, theories, and questions not

raised below when reviewing decisions of. District: Courts.

Shafer vo Reo Motors, Ine., 205 F.2d 685 (3d Cir. 1953)

In Re Linda Coal and Supply Co., 255 BF. 2d 653. (8d Cir.

1958). This Court has approved the Third Cireuit’s prac-

tice, Stating that'a Court of Appeals should not review. or

consider, issues not raised below except in ‘exeeptional cir-

éumstances where a failure to do so would lead to'a ‘‘plain

en of justice.”’ Hlormel v. Melveriug, 3812 U.S.

dol (1941. And this Court itself, in Virginian Railicay

Company vo Mullens, 271 U.S. 220, 227 (1926), following -

grant of certiorari, refused. to consider on review a new

theory of liability not raised below by the plaintiff-appellee.

Theresare no special circumstances warranting review

by this Court of petitioners’ new theory of recovery. In

effect, petitioners “are asking this Court to review and

correct a mistake made by theirs counsel; not a mistake

mide by the Court of Appeals ow by the District Court.

“The new. issue involves the question of whether Sellers has -

a cause of action, under the common law of P sare dt grape

for invasion of privacy based on the publication of Time? s

report of a judicial decision-of public interest, in litigation

in which Sellers was a party. It is'a matter of state law,

and its resolution is important to no.one except the parties

to this action. , ; ;

~ Moreover Sellers’ cleventh hour claim that his present

‘action ¢ al be sustained. under a common law privacy. theory.

Brie} iW Opposition fo Petition ; ; . 15 .

is without substantive merit, in view of ‘the decision of the-

‘District Court. The: Pennsylvania Cases dealing” with the

right of privacy establish that press reports of coirt pro-

ceedings, including routine divorce actions, are privileged.

Those. involved.in a court proceeding, however uawillingly

and whether as parties or witnessestor bee ause of their

relationship to parties: or witnesses, Stee objects if

public interest ;;and the press is privileged to report the

event and: their connection wath it. —Aequino «. Bulletin,

Company, 190 Pa. Super. 02 8, 534-36) 154 A. 2d 422, 426-27:

(1959). The privilege may be lost, where, as in equine,

the article dealing withr the spite’ mari: we and divorce of

“The danght¢ of the plhintiffs was in the nature, of fietion

amd not a news report, the facts were ‘embellished: sensa-

* tionalized and fictionalized, and the story. bedecked with a

Jarge drawing bearing no resembrance to the divorced

couple. In dequaoe, the Superior Court quite. properly held

that-the‘lower court correctly left it tothe jury to determine

"whether the purpose of the article was ses the reporting

of news but to amuse and astonish the reading public and

Whether the publisher should have realized the article .

would be offensive to persons of orditary sensibilities,

bg ° . . } . . a ~ -

thereby constituting an unwar ranted luvasion of | the

‘privacy of the ‘parent’ plaintiffs.

The Distriet Court, in its opinion im this. action, held

‘that the Tinte article was privileged as a fair report of

judicial proceedings. That holding was based on a record

which included the court decision re ported on and the depo-

sitions of tlie parties to the aétion. fn so holding. the Dis-

trict Court necessarily found that Tome ’s «report wits a

substantially accurate summary of the proceedings con-

taining no signitieant emissions and no exaggerated addi-

tions or embellishments. Under Pennsylvania law the t fair

report privilege is not lost by the inclusion in ‘the ae Lon

of comment fairly based on the contents of: the record i

; os ,

16 Meick i Opposition to Petition

the proceeding. Siiaidoa e. Lynctt, 409, Pa. 595, 187 A.

a759

2 O86 (1965) 3 Cresson vo North ine ‘rican Co,, 280 Pa. O00,

P24 AS495 (1924), Consistegit: with that finding, the Dis--

trict Court held thit the privilege was not lost by the use

of a lively prose style and ‘color’? fo enliven an otherwise

routine end dull account: of a legal decision. ~~ F. Supp.

at DS), District Judge iKratt also found that. the alleged.

._ defamatory portions of the article were substantjally ae-

curate, that thre Comment on the undisclosed state of Sel-

lets? mind wi is fair, and that the-language coniplained pf

“could only offend a person of the most highly tev ‘eloped

sensibilities’, 299 F, Supp. at O86,

At follows, therefore, that had petitioners. asserted in

the District Court a claim that Time’s report of Judee

Luongo’s decision in Walsh v. Sellers constituted an ‘ae:

Gionable invasion of Sellers me of privacy, Judge Kraft

would hiave he ld it privileged as a anatter of law for pur-—

poses of the privacy cause. also. Judge ipscntcl 's Opinion

wholly. precludes even the possibility of a ruling by -him

that Time*s report was a substantially. seas ee ae-

count of the court proceeding sand Sellers’ connection with

it, and the privilege thereby lost.

Judge Kraft also held, that Time’s article was coni-

stitutionally privileged as: a-"‘matter of law under New.

York Times prine iple seagainst claims for defamation. The

decision of this Court in Time, Pie. v. Hill, 88) U.S. 874°

mecwivey applying the constitutional ie in“a privacy | °

saction toa matter of public interest (an-artiele dealing

with the opening.of a Broadway: play ), mandates the same.

holding as respects petitioners? new privacy cause of action.

Tn sunmharye the Court of Appeals has corre tly ap-

plied the applicable state law in affirming the District

Court’s holding that-the Time article Was -not re; sonably

“ ate

Bricf Ww Opposition to Petition — - 7

capable of a a area meaning as a matter of law: Tis.

decision is. entirely. in accord with the Jarge number of

Pennsylvania etc ( ‘ourt cases dealing with the com-

mon law of libel, which hi we consistently held that. the issue.

of capacity for det famatory meaning is a question of law

for the court. Its decisiof follows to. the letter the prin-

ciples applied by Pennsylvania, courts In-resokying that

issue. “Four federal court judges, Who are constantly re-

‘quired to pass upon Pennsylvania law questions, ere in

aereement that ‘the challenged article is not -reasonabtly

capable of a gt amatory meaning. nder ,the cireum-

stances there is x reason for this Court to ener from

its announced .general policy ‘and Jeave undisutrbed) this

Court of Appeals’ holding on a question of state laws |

B. The .District Court Decision Is Correct in mng |

That the Time Article Was Constitutionally Privilege

Petitioners, ask: -this Court. to review the District

Court’s application of First Amendment -protection under

New York Times principles to Time's report of a judicial

decision of substantial public interest, even though the

Court’ of: Appeals affirmed the District Court's judgment

for responde nt” on common law grounds and accordingly:

did not reach the. constitutional’ privilege issue, P Ctition:

ers’? primary contention is‘ that the -application of First

Amendment protection to Time’s report by the District

‘Court represents an unwarranted extension of New York

Times principles, and that the Court of Appeals evaded

its duty in not re: whine the issue and reversing the Distri ict

Court.’ In the final paragraph of their petition, they also |

challenge the District Court’s holding that the record be-

fore it demonsirated a ‘complete lae k of ‘actual m alice"? in

the New York Times sense on the og ‘of respondent's -

employees. mg j

‘Pe titione ‘Ts are avrong im hoth contentions. .T = ap-

plication’ of First Ame ndment Protection to Time’s report

hy the District Court is entirely: consistem withfand sup--

ported by the decisions of this Court and the decisions of |

slower federal courts applying. the principles of New York

Times. «There therefore-is no- need Jor review by this:

OO of tht District Court *s ‘holding on constitutional

sida hat eh : fae F a

. : }

(1) The First Sesendinnsatt Protection Applies to Pub-

lications of Matters of Public Interest.. ‘ at

“ Betitiongss’ Areume nt is hasicnily that ‘the District

ms ourt evred. | int holding that the Time articke was’ “cousfitue

. tien ly. privileged unde New York Pime s Corr, Sullbwan,

266° UL S..854 (1964) ancb related cases? Dee cause fhey- lo

Tot e stend such protection’ byvend. sti iteéments concerning -

‘s public officials” and ‘public feures’* to matters of. ids

Interest. '

Potitione PS aure plainly Ossie. as should ngw be ap.

, parent. The basis of Ne we York Tides Was that ‘freedom

of expression es public que stions is secured by the First

~Ametidment.? 376 U » Seat 2692. This Court has specilically

applied the constitutional privilege in libel actions to public Rs

ollicials | New York Times]; public figures, both nationally "

known | Batts | ‘and local. [Greenbelt |s and, in a false light

“privacy action, to a matter, of public inteyest (thé opening”

‘of i Broailway hic iy) [//it].° In its deetsions since New

. Those cases inehide Garrison ve Louisiana, 379°C: S. 64°

(19d Henry v. Collins, 38U-U. Ss 356: (19635y: Linn v.. United

Plant ngs iWoorkers, b83 0. S..53 (1966) : RoSenblatt 7. Baer,

333. ae ee hip aig Time, due. v. Mill, 385 U.S. 374 ¢1967):

Curtis Pub ‘ishing Co.t. Butts, 38S uw Siw Pg A: Beckley News- -

papers ¢ OV. 7 "Hans? 389 U.S. SI ( 1967 ‘= Almant v. Thomp-

son, 390 © 427 (1908); Pickering + hee of Lducation,. 391

LU. #503 1608 1: Greenbelt ( aati p ublishing . Assoc lation, Ine:

Vv. Gee HW) >. Ct. 1537 (1970)...

. Ow

ot - 7 7 = in cao tgs nes * Petition eee 19

York: Times this court has RRS a to PR Oe that

freedom of expression. upon public questions is secured ‘by

the Fi Amendment? - It sis ‘clear! aoe that the

c es foundat ion of the privilege first. sel forth an Vew Fork

Times is the publ right to hoe informed concerning tmat-

- . 9 ters of public interest. 0, ;

: Mae Saree. he certs of appeals hive sp understood,. pul have *

applied re privilege tomate Vs of public interest iu Cited 7

ae Vedic Wo Laboratgrics, Ine oe. Ceylar india Broadcdisting

: - Syste m, lue., 404 F.2d 706. (Sth Cir, 1968), Cert. denied B94. *

. 4 U. S. 921 (1969) (television brtoadcast dealing with mail

order niedical laborjitories) ; Time, luc... MeLaney, 406°

F’; 2d 565° (oth Cir), cert. denied, B99 U.S. 922 (169) (ar-

ticle de aling with election campaign in Bahamas) ; Rosiu-

bloom ve. Metromedia, luc. 4150 FB. 2d 892° (1969), cert,

granted, B97 U.S. 904 (1979); (radio. broddeasts dealing

with police arresty of deale rs and distr ibutors of allegedly

si ‘obscene malazines) ; ‘Wasserman eTimes, Ine, 424 Fe 2d

bes an 920 (D.C. Cir, 1970) (article dealing with: police ‘arrests

Ine. vo. Time, Inc., ~ F. 2d — (Stl Cie. 1970) 27 490,

uy |. May k I9UF (article dealing with upcoming Mat “Golf

| Tournament and public accoinmodations available fob cae

* - ">. tators).7 _So atso have a number of federal district, COUrts

po* SS" [e.g., Grove’ ts Dun @ Bradstreet. Ine. 308 F, Siipp. 1068

6 W.. DL Paz 1970) (imereantile, eredit’ ae state

courts [e.g., Crrayson vw. Curtis, Publishing Co... 72.W ash.

. 999, 436 DB. -2d 756 (1967) (article dealing with ‘sang:

manlike conduct of basketball coaches, players and offli-

we, ‘ . “* F . . : e

‘| cials) |. pots 2 “ ‘

Sts. 3 ; 6. Garrison, i Us S.at 74-75: Rosenblatt, yc cS. mv 5: RO:

Pickering. 391 Us. at S74; Butts, B88, 3. at 147: Hal, sivas

-U. 5. at 387-88. — =

The opinion of the Court of Appeals for the Fifth Cireuit in

Bon oe Hotel, Inc. v. Timewlne.,, which’ igs not yet reported, is at-

tached hereto as Appendix’ A. . Mg oS

‘

20 Brie tin Opposifiow fo Petition C

The iaotsigd of Judge Luonge in Walsh +. Sellers, ‘on

se h Time reported, was prominently ‘eatured in Section

I of the April 19, 1966°isste of Vnited States Law Week

‘under the bold. face heading **Golter Does «NOt Assume

Risk Of Injury hy ‘Impossible’ Shot’’. The opening sen-_

tenées of Law Week's coniment read: “Let the duffer be-

ware, His. playing partners do not assume: the risk of

his negligénee and ineptitude, a to the U.S. Dis-

‘trict Court for Exstern Pennsylvania.’ “Key portions of

Judge Luouvo’s opinion were re printed in Section 2 of that

INSU, unde ‘ry the general heading ‘*Sienifie: ant Opinions Not

y yt Ge He rally Re ‘ported’?

Judge Luongo’ ~ de ee involved a ruling of par-

ticular publie inte rest, not only to the legal profession but

to laynic ‘yas well. Millions of ‘Americans who parti¢ipate

in sports doubtless believe that they cannot recover for any

“injuries they may sustain during those activities or that

they cannot be held liable for injuries which they them-

selves inflict. Walsh vc. Sellers presented an unusual factual

situation of almost textbook ingenuity in which the extent

of the “assumption of risk’? ‘doctrine for golfers (and by

analogy, other sports) could be clarified. Judge Luongo’ s

opinion severely limited that doctrine, holding that a per-

“Son assumes the risk of being hit by a golf ball only when

he is standing in the ‘apparent orbit’? of the shot. Tn

short, the decision undoubtedly Was of more immediate

interest to the American public. than the latest ruling of

this Court CONCELNING: patent issues or antitrust law.

Time?s report stuck to the point. It did Jhot deal with

Sellers’ personal life as petitioners suggest, or otherwise

report extraneous infgrmration, The rae date in the

article came from: the read on which Jude ge Luongo bh: ased

his decision, which included the de ‘positions of the parties.

The statement that Sse lle Ts played golf for business. reasons

Brief in Opposition to Petition : ?1

was the explanation for the otherwise curious fact that the

-action was brought not only” against him personally but

dlso against his company.

~The decision in Walsh + Sellers was obviously a mat-

_ ter of legitimate public interest... District Judge Kraft Cor.

rectly interpreted and applied the principles of New York

Times in holding that the: judicial decision, which he found.

involved ‘two Gutstandinig points of reader interest

the unusual flight of the Dall and the legal decision that the

defense of assumption of risk was inapplicable under the

particular facts,’? waS “a matter of public intere(@S) and

that therefore Time's report: was coustitutionalypriv-

ileged. 299 F. Supp. at 5s6. | |

(2) Respondent Is Entitled to eanimary Judgment.

The record upon which the District Court based its

grant of summary judgment for respondent Was a complete

one. In addition to Judge Luongo’s apinion in Walsh vo.

Sellers and the de ‘positions of Walsh and ‘Sellers in that

case, on which Time’s report wis based, the record-ineluded

the following: (1) Respondent’ Ss answers to two sets of

interrogatories, setting forth?in detail the editorial process

relating to the article: ( (2) Time’s editorial reference file

relating to the arfiele; (3) The depositions of the five in-

dividuals whe participated in the preparation of the article

and who were examined at length by petitioners’ counsel—

Time’s Philadelphia correspondent, Time's Managing

Editor, the writer of the article, its editor, ‘and the re-

searcher who checked it for accurae y;and (4) The support-

ing affidavits of the article's writer , editor and researcher,

all of whom verified their belief in the truth of the article

when if was published. Petitioners submitted no opposing

affidavits. :

—

as - Brief ii Opposition to Petition : fre

As the District Court *s < opinion indicates, Judge Kraft

applied the correct standard in examinite the complet e ree-

ord to determine whether petitioners could prove “actual

malice’? as defined in New York Times. Ue pointed out

that petitioners, to overcome the constitutional privilege,

“must prove with ‘convincing clarity’ that the statement

Was false and thet it was made with knowledgeof its falsity

pr in. reckless disregard of whether it was false-or true’,

citing New York Times. 299 F. Supp. at oS4,n. 2.) Based

on that examination; and applying fhe corroet: standard,

Judge Kraft concluded that the documents domprising the

record **. .-. manifestly demonstrate the complete lack of

any knowledge of the falsity of the article or reckless dis-

regard of the truth on the part of Time’s employees. The

plaintiff has submitted) no aflid: Wits to the contrary,

and, so, has failed to. offer evidence of the exision « of any

genuine ixsue of actual malice? 299 I’. Supp. at S86.

Judge Kraft also found that the portions of the article

Claimed by petitioners to be det famatory **.°. . are substan-

tially accurate.’* 299 F, Supp. at ose,

Since the procedure followed by the District Court in

assessing the evidence wats clearly in accord with the eon-

stitutional standard laid down by this Court in Meo oa

Times, and repeated and. amplified in Garrison and .

-lmant, there is no need for this Court to review the soa

trict Court’s findine that there was constitutionally insufii-

cient evidence to take petitione rs to a: jury) on the issue

of actual malice. .

This Court has ‘pointed out in New York Times, 376

U. SJat 279, and-in Ii, 585 U.S. at 389, that fear of the

expense of ‘trial is as great a threat to free discussion of

matters of public interest as fear of large libel verdicts.

Thus,’ free exercise of First Amendment. rights requires

that summary judgment be granted as soon as: if becomes

Bricf in Opposition to Petition _ 23

clear that a plaintiff cannot establish “‘actual malice’’.

Summary judgment was granted for the defendant pub-

lisher, in applying the onstitutional principles of New York

Times, in Washington Post Co. +. Keogh, 365 FB. 2d 965,

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

Time, luc. v. MeLancy, “supra, and Bon Air hotel, Tie. v.

Time, Ine, supra, among numerous other First-Amendment

cases In federal and state courts. Summary dispositior

Was appropriate here,

C. The District Court Decision Is Correct in Hélding That

the Time Article Was Privileged as a Fair Report of

Judicial Proceedings.

Petitioners ask this Court té review on certiorari an-

other question of state law—the holding of .the District

Court that Time’s article was privileged as a fair report of

Judicial proceedings under the conimon law of libel. Again -

the holding of the Distriet Court is in. accord with Penn-

sylvania state court libel Cases, involves nothing yew or

novel, and is of importance ‘to no one except the party

litigants.. :

Numerous Pennsylvania decisions establish that a re-

port on the contents of public records, including those of

judicial proceedings, - is -qualifiedly, privileged against a

libel claim. Sciandara v, Lynette, 409 Pa. 595, 187 A. 2d 586

(1963); Boyer v. Pitt Publishing Company, 324 Pa. 154,

188 A. 203 (1936). It is clear-th: it such records as judicial

opinions-nd deposition transcripts are within the coverage

~of the privilege. Mengel v. Reading Kagle Co., 241 Pa, 307,

88 A. 660 (1915); 1V achs vr. Ramp Consulting Services, Inc..

28 D. & @. 2d 201 (C.'P. Monte. Co. A961). The sirivilewe

is a bar to the libel claim unless the plaintiff establishes

that the report is not a subst: autially accurate summary, as

by a*shoaving of significant omissions or. of exaggerated |

Se eg

2-4 Brief in Opposition to Petition

additions and embellishnnents; or that the report.was pub-

lished solely for the purpose of causing him harm. Sciandra

v. Lyne tt, supra, 409.Pa. at 600-601, 187 A. 2d at 589.

The privilege-allows the press ‘reasonable freedom in

reporting on judiei al proceedings. It permits the use of a

lively prose style and ‘color’ te-entiven an otherwise rou-

tine and dull aceount of a legal deeision, as the District.

Court, held. Comment fairly based on the contents of the

record is permitted. Sciandra v. Lynett, supra, Cresson v.

North Amerivan Cow 280 Paz 373, 124 A. 495 (1924).

Sciandra, for-example, the Pennsylvania, Supreme Court

held that a series of ne Wspaper: articles coneerning an ~

Official New York State report ona meeting at Appalachin,

N. Y., widely suspected of being a business meeting of un--

derwprld overlords and their vassals, was privileged as a

matter of law even though the series used language nof_

contained in the official report, such’as a headline 1 reading

‘*Barbecue Gives Four A Bellyache’’ and su¢h phrases as

«infamous gangland meeting.*

*- The court. said the

plaintiff’s complaint about such language was’ without

merit or justification in view of the information contained

in the report concerning the police records of his t traveling

companions,

Petitioners: challen nge the holding of the District C ourt

that the article was privileged as a fair report of a judicial

proceeding on the ground Time’s report ‘‘is not accurate

or complete, or at least a fair abridg¢nent of the -proceed-

ings”? (P. 28), and apparently on the ground the statements

in the article claimed to be libelous constitute unfair com-

ment. But Judge Kraft, with the record in Walsh v. Sel-

lers (ineluding Judge Luongo’s opinion and Sellers’ deposi-

tion) before. him, held that’ the statements complained of

were substantially accurate and fair based on that record.

‘gangland convention,

and. ‘‘so-eatled hoodlum - meeting.

Brief in es acai dn to Petition 25

Moreover Judge Kraft ‘held that “The. Time article, read?

as a whole, fairly reports the result of Judge Luongo’s

decision.’’? 299 F. Supp. at.585.- er ~ se - i

The District Court’s holding on the Pennsylvania eom-

mon law privilege issue was clearly correct and in accord

with Pennsylvania case law. Review ‘by this Court of the

District Court’s holding on a question of state law plainly

Is not warranted,

CONCLUSION.

The petition does not present any questions warranting

review. by this Court and should be denied.

Respectfully submitted,

Puitire H. Srrupine . Haroip R. Mepixa Jr.

‘Witsur H. Harnes Jr. Cravatu, Swarne &*Moore

Peprer, Hamruron_ . ~ One C hase Manhattan

& ScnEEtz "Plaza

2001 Fidelity Building ~- New York, N. Y. 10005

Philadelphia, Pa. 19109

‘ Attorneys for Respondent.

August 21, 1970. a ce

court? s order granting’

inafter. referred to as:

APPENDIX A.

IN. THE

U NI ITED ST. \TES COURT OF APPEALS |

For tur Fieri Cirevir

No. 27490

Bon Alk Horen, Ixa,,

Plaintiff Appe lant,

versus

TIME, Ive, and Dan JENKINS,

‘De fendan ts-A ppellé ees

Appeal from the United States District C

ourt for the

Pig pease District of Georgia

(May 6, 1970)

_——

Before Rives, a and Moran, Circuit Judges,

Rives, C ireuit PaaS Bon Air appeals from the dicts ict

Time, Ine. and Dan: Jenkins’ (here-

SiN motion for summary judge-

ment. Bon Air Hotel, Ane. v. Time, Inc

re, £nc., 295 F. Supp. 704

(S. D.. Ga. a ue

(Al)

A2 2° Appendix A-

Appellant, owner ef the Bon Air Tfotel in Augusta,

Georgia, brought this libel action against Time for an

article written by. Jenkins and published in ‘its magazine

Sports. Hlustrated. Time’s initial motion for summary

Judgment was denied by Judge Searlett on December 20,

1967. On-Mareh 4; 1968, this Court denied Time’s s appligag

tion for leave to appeal under 28 U.S. GL AL § 1292(b).

Subsequently, the Supreme Court denied eed. Ne

U.S.859. Meanwhile Judge Scarlett had retired. Further

proceedings were held before his successor, Judge’ Law-

rence, On January 30, 1969, Judge Lawrence, pursuant

to Rule 60(b), Fed. R. Civ. P., vaeated Judge Searlett*s

order and granted Time's motion for sui wy, judgment,

Bon Air contends that the district court’s order ‘should

be reversed on the grounds that: (1) The district court

erred in applying the New Fork Times" rule to the publi-

cation in question;:(2) the district court denied Bon Air

due process of Jaw. in eranting the motion for summary

judgment without notice or opportunity for hearing; and

(3) the district court erred in eranting summary Judgment.

The faets surrounding the publication will be men-

— tioned only briefly Since. the district court's opinion sets”

forth the facts in detail... The April 6, 1964 issue of Sports,

- Hlustrated was: devoted in large part to the Masters? Golf ,

Tournament which is held each April in Augusta, Georgia.

This issue ‘included an article written by Jenkins, a well-

known sports writer, who had visited Augusta during the

week of the Tournament for fourteen. years,. The article

described conditions under whic h the Tour mead Wan held,

accommodations pines in Augusta for both ee and

spectators, and, in particular, conditions at the Bon Air

Hotel. HK xamining the present comdition -of the hotel and

past experiences of its guests during. the week of the

Tournament, Jenkins focuse “bon the -: *

1. New, York Times Co. v. Sullivan, 370 Us 3. 254: (1964S.

Uy :

Appendix A ai ee

‘de cline into dishev ‘tise of the Dios Air Hotel though

the general theme was Augusta and the Masters Tour-

nament. According to the author, ‘100,000 golf enthusi-

asts visit that city each year when it is played. Millions

Watch the event o television. For over twenty years

prior to 1960 the Bon Air had bee ma landmark of the

Masters scene. It-was patt and parcel of the Tourna-

: ment. As the article says, ‘Phe Bon Air was the place

‘to be, and to be seen. ~ During the period 1961-1964

the hotel was Closed fon fifty: “one weeks for each véar

_and-was opened. only for the week of the Masters,

The author had*stayed at or ‘visited the Bon Air ‘for.

thirteen years and had observed: first hand its alleged

decline from the. status of grande dame into the sta-.-

— tion.of a dowdy, decrepit and disheveled old woman. ”’

, 4

295 F. Supp. at 100.

1. cae York Tinves: Issue.

fe: ‘

The district court: held’ the « case Was a proper one for

application of the actual malice standard of New York

Times Co, v. Sullivan, 376 US. 254 (1964). Bon “Air

contends thie holding is erroneous ‘in that (1) the New

York Times rule applies only to defamation of ‘*puble

’ o) ‘ by

oflicials’? and ‘public figures’? and (2) assuming that Vew

York Times is applicable, the subject matter of the publica-

tion in question is not of sufficient public interest to war-

rapt first amendment immunity. We conclude: that both —

contentions are without merit. — |

In New York Times the: Supreme ous held that the |

first. amendment limits a state’s power te award: damages,

in a libel action*brought by a public offictal against critics

of his official conduct. The 1 rationale of’ the decision was

that*in the area of free debate, where ex aggeration and

misstatement .are inevitable, freedom of expression must

Ps e

A4 | Appendix il ; ha es

have the breathiug space it necds to survive’ regardless of -

“the truth, popularity, or social utility’? of the statements.

o16A'. Scat 278. However; the Court conditioned the first

amendment protection. on a lack of actual malice, i.e.:

knowledge that’ a statement is false or reckless: disregard.

of whether ox not it is false. In Curtis Publishing Co, v.

Butts, 38s UL S. 130 (1967), the Court extended the first

amendment guarantees to misstatement of faet in discussing

public figures. oy .

The qhestion before us is whether the first amendment

protection, extended to public officials ju. New York Times.

‘and to public figures in Butts, applies to publication con-

cerning matters of public interest. In decisions since ‘Vere.

York Times, the Court has continued to emphasize that

freedoin of expressio® upon publié questions is secured: by

the first amendment.* This Court in Rime, Tue. e. MeLaney,

406 F.2d 565.15 Cir.), cert. den... 395 U. S. 922 (1969), noted

that the New York Times aetual malice standard is ap-

“plicable to publications involving matters of great publie

interest. ° . : gu

2. See Garrison v. Louisiana, 379° U.°S. 64, 74-75 (1964):

Rosenblatt. v. Baer, 383 U.S. 75,86 (1966): Curtis Publishing Co.

v. Butts, supra at 130-52; Pickering v.-Poard of Education, 391 U.S.

963, .573-74 (1968). Ine Butts, Justice -Harlan (announcitig the

judgment of the Court) relied on a phrase from Thorahill v.. Aka”

bama, SIO U.S. 88, 102 (1940), that: freedom of discussion “must ’

embrace all issiies about whieh information is needed or appropriate

to enable the members of society to cope with the exigencies of their

period’.” 388 UL S.at 147. InTime, Inc. v. Hill, 385° U.S. 374°

(1967), the Court denied recovery im an action brought under New

York's right of privacy statute. Relying on New Vork Times. the

Court held that “the constitutional protections for speech and press

preclude the application of the New. York statute to redress false

“reports of matters of publie interest in the absence of proof that the

defendant published the report with: knowledge of its falsity or in

reckless disregard of the trutli.” Id. at 387-88. aes

~* 3. The Court in MeLaney predicated its application of the Vew.

York Times standard on MeLaney’s active participation in matters

of important public concern. —McLaney,’ Like General- Walker in

geo

% ee

ANppeudia A Sl Se AD

Since the Bitts decision, which extended first. amend-

“ment protection to public figures, numerous lower courts

~? (S02 Ik. Supp. 1005 (M. —. Fla. 1909): Arizona Biochemical

‘ PI .

have extended application\of the actual malice standard to ¢

publications possessing a vi atid public interest! We agree

With these deisions that publications concerning: matters

of public interedt are “protected hy ‘the ‘first ame ndment

absent proof of actual malice, ° '

Bon Air \lso contends that, if the New York Times

actual malice Atandard applies to publications discussing

matters of publi interest, the article j In Spoyts Ilustrated

is not of sufficient public interest to warrant first: amend-

ment immunity. In partigular, Bon Air argues that the

Masters’? Golf Tourna fii docs not inake an inconspicuous

and little. Known hodvt i‘ mi iter of such public interest.

In re jectingthis contention, thie district court found

that the national interest ‘in the particular event and the

: a. (cont “d)

—

Curtis Publi. hing Co. v. Butts, inne, had thrust his person: ity into

Alie “vortex” of an jmportant public coutrover sy. The Court, how-

ever, did not attempt to limit Vew York Times to public officials and

public figures, but agreed with the Ninth Circenit’s decision in United

Medical. Laboratories, Ine. v. Columbia Broade: isting System, Inc.»

404 F.2d 706 (9-Cir, 1968), which applied the actual malice ‘stand-

ard to mi utters of legitimptepublic interest. :

4. Wasserman v. Time, Inc.. — F 2d — (15. C. Cir. 1970) Na.

23.207, Mar. 3, 1970]; Rosenbloom v. Metromedia. Inc.. $15 F.2d

892 (3 Cir. 1969) = United Medical 1. aboratories? Inc. -v. Columbia

Broadcasting System, Inc., 404 F.2d 706 (9 Cir. 1068) : Holmes v.

Curtis: Publishing Co., 303 F.Supp. 322 (D. SC. 1969) : Cerrito

Time, Inc., 302. Supp. 1071 ¢N.D. Cal. 1969) : Ragano v. Time,

Co. v. Hearst, $02 F. Supp: 412 (S..D. N: ¥2.4969): DeSalvo ¢.

2th Coane. Fox Corp...300 F, Supp. 742 (D. Miss. 1909): Sel-

lers v. Time, Inc.; 299 F, Supp. 582° CE. Dd. Pa. 1969) : Altoona Clay ;

~ Prods., Ing. ve Dun & Bradstreet, Inc.) 286 F. Supp. 899 pre 1D.

Pa. 1968) Cullen v. Grove Press, Inc., 276 I. Supp. 727. (S. D.

N.Y. 1967) :4All Diet Food Distributors. Inc. x. Time, — ~ 290

N. Yo S. 2d 445 (Sup. Ct. 1907 y; seg ‘Vinge, Ine. v. MeLaney, 406

I. 2d 565 (5 Cir. 1969). See. also Curtis Publishing Co. -y: Butts,

351 F.2d 702, 721-22 (5 Cir. 1905 ) (Kives, J, dissenting ).

ase Appendix A | |

obs a

interest of 100,000 golf Gnthusiasts in) ‘the, accommodations

in Augusta daring: the Masters’? Tournament constituted ‘a

valid public interest. We agree, Although some “publi¢

interest’? cases have dealt with matters of a more critic ul

nature, e.g. public health ® and organized crime," awe con+

clude that i Ime*s article, focusing on Augusta, the Masters?

Golf Tournament and the publie accommodations availabl:

for the many thousands of spectators, was of a legitimate

public interest.7. Fér these | reasons, the distriet court didl

notoerr in-applying the New York Times actual malice

“TT. Denial of Due Process, |

standard to the publication in question.

Bon-Air next contends that it Was denied die process

of law when the (istrict court. eranted Time’s motion for

summary judgment without notice or r opportunity to de-|

° 4 » |

velop a case by. oral argument or by. presentation of |

evidence, |. ‘ ie “

The district court: on January 20, 1969, wrote counsel

and inquired Whether the court had the power, and if so

Whether it should be exercised under the circumstances, to

vacate the ‘court's previous de nial ‘of "Time's motion -for

Summary judgment. Counsel for Time replied that the

court did have the power to vacate and suggested. that his

- letter be treated-as a motion for reconsideration of Time’s

earlier. motion for summary judement. On January 25 the

court notified counsel that it was treating the letter as a

tonited. Medic: al Laboratories, Ane, v. Columbia Broadcasting

Systeni, Ine., supray ; oll

- Wasserman v. Time, Ine. ntpra: Maen ‘Time, Inc., supra;

Ragano v. Time, Ine., supra; Time, Ine, v. Mrehaaey, supra.

ture); Sellers v. Time, Inc., sipra. (freak accident on golf course*and

_ resulting action. for damages ) ; Altoona Clay - Prods., Tne, v. “Dun &

Bradstreet, Ine., supra (credit: information ).

Appendix A AZ

motion to vacate the earlier order denying summary judg-

ment and also as a motion to. reopen Time’s earlier motion

for summary judgment. Counsel for -Bow Air, in replying.

to the court on January 27, 1969, donceded that the court

had the power to vacate the earlier order denying summary

Judgment but urged the court not to exercise that power,

On January 30, 1969,° the court gr anted Time’s motion

for summary Judgment,

The district courts outs of Time’s motion for sum-

_mary judgement on December 20, 1967, was only an inter-

‘loe ‘tutory order and thus not subject to being vacated under

Rule 60(b); Fed. R, Civ. P However » because the order

was interlocutory, “the court a any: ia before final decree

leould |. modify or rescind it.’” John Simmons Co. v. Grier

Brothers. Co., 258 U.S. 82, 8S (1922) ; see Carter v. Amer-

tcan Bus Lines, Ine., 22 I R.-D. 323, 325 (D. Neb. 1958) ;

Kliaguine v. Jerome, supra. Thus, vacating the earlier

order was within the district court’s power, and we do not

find that the court eee its discretion. Sve Marconi Wire-

less ‘Tele ‘graph Co, v seni States, 320 U. #. 1, 47-48

. (1943). :

~ Rule 96(¢), Fed. R. Civ. P., provides that the ‘*motion

[for summary judgment] shall be served at least 10 days

before. the time fixed for the Rearing.’ This Court has

interpreted. Rule 56(c) as requiring notice to the adverse

party and a hearing.”

We are of the opinion that both of these requirements

were complied with in the district court. Through the dis-

8. Although ‘te oder ‘is di ited Senin iry 29, 1969, it was filed

with the clerk on — 30.

~. O Kliaguine Jerome,-91. F. Supp. 809, 810 (E. D. N. Y.

-1950); see 6 tidak rederah Practice §§ S 90.14] 2], 60.20 (2d ed.

1966)... *

10. Georgia Southern & Ta. Ry. Co. v. Atlantic ‘Comm Line

R. R. Co., 373.4. 2 493, 496-97 (5 Cir. 1967) Enochs v. Sisson,

301 I. 2d 125, 126 (5 Cir."1962). Sée also, Bowdidge v. Lehman,

252 F. 2d 366 (6 Cir. 1958),

AS . Appeudiv ‘i

trict judge's letter to counsel on January 20, 1969; and the

court's notification on January 23, 1969, Bon Air received

. Sufficient notice that the district ‘court was reconsidering

Time’s motion for summary judgment, 7

The following factors dre relevant in our consideration

of the question of whether Bon Air was allowed to be heard

on the summary Judgment motion: (1) Oral argument was

conducted on “Time’s original motion for summary judg-

ment, which was denied; (2) Bon Air filed briefs in opposi-

tion to Time’s petition in this Court for leave to appeal the

denial of its motion and alse in opposition to Time’s peti-

tion for rehearing of this Court's denial of the above peti-

tion; (3) aflidavits and interregatories with Time and Dan

Jonkins* answers thereto were filed with the distriet court

by Bon Air; (4) on January 27, Bon Air submitted a letter

to the district court, together with a pretrial brief, and

urged that the district court should not vacate its earlier

denial of Time’s summary judgment motion, for the prin-

cipal reason that the ease should proceed to trial and should

not be disposed of throweh summary judgment. The eom-

bination of these factors convinces us that Bon Air was

‘heard,’

sideration of Time's motionfyr summary judgment. The

“fact that an oral hearingtvas nyt held oni the court’s recon-

sideration of Time’s motion dpes not amount to noneom-

pliance with Rule 56(¢) or a denial of due process,"

I. See Hilton v. W. PT. Grant & Co., 212 F. Supp. 126,, 128-29

(W. D. Pa. 1962). See also Federal Communication Commnr'n v.

WIR, the Goodwill Station, Inc.. 337 U.S. 265 274-77 (1949).

Another consideration is. Boo “Air's inaction. because this was a

reconsideration of Time's earlier motion for summary judgment, it

scems to us that Bon Air should have presented any additional e-

dlence through affidavits of otherwise under Rule 36(e). Fed. R. Civ.

P.,.and if time had wot permitted it to do 7, should have requested

the district comrt to reconsider its order granting summary jndg-

. ment. In the absence of some such action on Bon Air's part, we are

left to mere spéculation as to whether any additional evidence was

available to Bon Air. ,

within the meaning of Rule 56(e), on the recon.

Appendix A | ee ; AQ

HI. Summary Judgment.

Having concluded that New York Times’ actual malice

standard was applicable to. the publication in question, the

district court examined the record and granted Time's

motion for summary judement. The court held the record

“devoid of any showing that defamatory statements’ were

published by defendant Time . . . -with knowledge of their

falsity or with a reckless disregard of whether they were

true or false.’’ 295 -F, Supp. at 709. We agree with the

district court that the, record. was totally devoid of facts:

from which Bon Air could prove thaf statements ‘vere made

by Time and Jenkins with .actual malice, and. proceed to

state our views at some length. | | , .

The Supreme Court in New York Times conditioned

the first amendment privilege to make misstatement of facets

on the absence of a publisher’s actual malice, ‘7.¢., with

actual knowledge. of a statement’s falsity or with reckless

disregard of its falsity. 376 U.S. at 279-80. In Garrison

v. Louisiana, supra at TA, ‘reckless disregard’? is. defined

as “high degree of awareness of probable falsity,’? and in

St. Amant v. Thompson, 390 U.S. 727, 731 (1968), as

‘‘serious doubts as to the truth.’ 2) Tn addition, the Court

12. In its most complete statement on the “reckless disregard” ’

"element of actual malice, the Court in S¥. <lmant explained: .

* “Reckless disregard,’ it is true, cannot be fully enconipassed

in one infallible definition. Inevitably its outer limits will be

marked out through case-by-case adjudication, as is true with

so many legal standards for judging concrete cases; whether the

standard is provided by the Constitution, statutes, or’ case law.

-Our cases, however, have furnished meaningful guidance for the

further definition of a reckless publication. In New York Times.

supra, the plaintiff did not satisfy his burden because the record

failed to show ‘that the-publisher. was aware of, the likelihood. that

he was circulating false information. In Garrison v. Louisiana.

379 U.S. 64 (1964), also decided . before the decision of the

Louisiana Supreme Court in this case.. the opinion emphasized

the necessity for a showing that a false publication was ‘made with

a ‘high degree of awareness of . . probable falsity.”

AIO * ~ Appendix A’

‘fendant

_ placed a heavy burden of proof on plaintiffs—actual malice

must be proved with “convinéing clarity”? ™ i

Actual malice is a constitutional issue to be decided.

initially by the trial judge vis-a-vis motions for summary

Judgment and directed ‘verdict. The functions of the trial

court judge and the jury have been explained as follows:

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

» makes actual mace a constitutional issue to be de-

cided in the first instance by: the trial Judge applying

the Times test of actual knowledge or reckless disre-

gard of the truth. Cf. Jackson v. Denno, 378_ULS, 368

(1964). Unless the court finds, on the basis of pretrial

affidavits, depositions or other documentary evidence,

that the plaintiffcan prove actual malice in the Times ’

‘sense, it should grant summary judgment for the de-

“Tf the case surviyes the defendant'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-emaking this

Judgment the court will judge the credibility “of the

Witnesses and draw its own inferences from the evi-

-denee, If the trial is permitted to proceed, the court -

12. (cont'd) .

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 supe

ficient evidence to permit the conclusion that the defendant in:

jact entertained serious doubts as to the truth of his publication.

Publishing with such doubts shows reckless disregard for truth

or falsity and demonstrates actual malice.”

mee ae

$90 U.S. at 730-31 [emphasis added J.

13. New York Times Co. v. Sullivan, supra at 285-86: see

-Cepeda v. Cowles Magazines & Broadcasting, Inc.. 392 F. 2d 417

(9 Cir. 1968),; Rangano v. Time, Ine., 302. F. Supp. 1005, 1010

(M.D. Fla. 1969). |

. . i!

Appendix A All

Will be called upon again to make a Judginent on the

actual malice issue at the close of all ef the evidence.

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

the trial is denied; the actual matice j Issue, along with

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

the Times Instruction without any indi¢ation from the:

court or counsel that the court has decided that the

evidence shows actual malice with ‘convincing

clarity.’ ’’ {Citations and footnotes omitted. ]

Wasserman v. Time, luc., — F. 2d — (D.C. Cire 1970) [No.

23,267, Mar. 3, 1970, slip opinion pp. +5] (Wright, J., con-

curring). Such two-step procedure ‘*provides the protee-

tion of the First Amendment freedom that Times sought to

make secure in areas of public concern”? Id, at 5. Compare

Rosenblatt v. Baer, 883 U.S. 75, 88 n. 15 (1966).

Thus it is clear that, where a publigation is protected

by the New York Times immunity rule, summary ‘judg-

ment, rather than trial on the merits, is a proper vehicle

for affording constitutional Lagoa in the proper case.

Judge Tuttle in Time, Ine. ce. Me Laney, supra at. 566, ree-

ognized the nso of summary judgment ;

The subject matter of this litig: ation, inv olving as it

-does, the very serious and timely question of how far

the First Amendment guarantee of freedom of. the

press may still be impinged upon by actions for: libel,

places some cases in a somewhat differ ‘ent category.

This folldws when the trial court and this court jointly |

consider that the t failure to-dismiss a libel suit might

necessitate long and expensive trial proce edings,

which, if not really warranted, would themselves offend

the principles enunciated in Dombrowski v. Pfister, 380 —

U.S. 479,°85 S. Ct. 1116, 14 L. Ed. 2d 22, because of .

the chilling effect of such litigation.’ ca

a. - Appeutie A

The Distri wt of Columbia Ciréeuit placed a similar emphasis

on the role of summary Judgments in defamation actions :

‘In the First Amendment area, summary proce-

dures are even more essential Kor the stake here,

Uf harassment succeeds, is free debates... . Unless

persons, including newspapers, 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 pub-

lie issues .° 2. will become Less uninhibited, less-robust,

and less wide-open, for self- -ccnsorship affecting the

whole public is ‘hardly less virulent for being privately

aylministered.’? Smithy. People of State of California,

361 UL S.-147,°154, 80 8. Ct. 215, 219, 4 L. ED. 2d 205

(1959)."° | |

' Caen ngtou Post Cc 0.0. Keogh, 365 BF. 2d 965, 968 (D.C,

~ 1966). ;

Numerous courts have found Summary judgment for

publishers proper where the record is devoid of genuine

issues of fact as to whether the alleged defamatory state-

ment was published with actual knéwledge of its falsity or

With a reckless disregard of whether it was true or false.

Other courts, however, have not allowed a-publisher’s mo-

tion for summary indent Where facts were presented

14. Time, hie. Mel “aney, . 406 F. 2d 565 (5 Cir.), oe den.,

395 U.S. 922 (1969) : lnited Medical Laboratories, Ine. Célum-

bia Dicadcaaing System, Inc., 404 I. 2d 706 (9 Cir. 1968). cert.

den., 394 U.S. 921 (1969) : I turley. v. Patewes Publications, -Inc.,

398 KF. 2d 346 (8 Cir. 1908), aff'g 273° F. Supp. 967 (D. Minn.

1967); Walker v2 Pulitzer Publishing Co., 394 KF. 2d 800 (8 - Cir.

1968).; Thompson v. Evening Star, 394 F. 2d 774 (D.C. Cir. 1968) ;

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

cert. den., 335 US. loli (1967) ; Cerrito v. Time, Inc., 302 F. ~~

1071 (N. D. Cak. 1969); Sellers v. Time, Inc.. 290 F. Supp. 582

(E. D. Pa. 1909), aff'd. — F. 2d — (3 Cir.. Mar. 20, ed ed

, 4

Fits

alppeudix A A13

from which a jury could find: that a stateme nt was made

with actual matics. We thus proceed to an examination

of the record: viewing it and the inferences which might be

drawn therefrom in ‘the light most favor able t» Bon Air,'®,

to ascertain whether “the record established by [Bon Air |

de ‘monstrate[s] that there is no issue of fact from which a

jury could find ‘actual malice.’ Time, Ine. ve, McLaney,

supra at 567;-see Rule 56(e), Fed. R. Civ. P. ‘

The complaint alleged that the article as a whole was

defamatory and that ten specific statements in the article

were false and dibeled Bon Air: (1) The hotel has a ‘‘white-

washed face’’; (2) the hotel is staffed: with ancient Waiters

in White coats who ‘‘tumble.drowsily through the dining -

room’*; (3) the hotel management's attitude toward its

guests is that of ‘stay -at-your-own- risk”? ; (+) the hotel is

leine eradually converted into a eae oa for the

elderly’*; (5) halls ‘sloped awkwardly’? toward the rooms;

(6) rooms are ‘wide enoiigh so that by turning, sideways

? guest can walk between the bed and the dresser’; (7)

‘Windows are of two types. If, upon, entry, 5 widok is

up it is not likely ever to come down, especially if the

evening is brisk. On the other hand, if the window is down,

it will never go up?’; (8) tubs and basins were never “worth

much’’; (9) sleeping accommodations are’ described:

*Sleepmeg at the Bon Air has long been difficult for reasons

‘other than the heat or the cold or the hardness of the beds.

5. W

[No. 23.207, Mar/-3,. 1970): Goldwater y. Ginzburg, 414 F. 2d 324

(2 Cir. 1 109), affg 201 KF. Supp. 784 (S. DON. Y, 1965) > Ragano

. Time, ie 302 F. Supp. 1005 (M. D.- Fla. 1969), appeal filed

(5 Cir.) ; cf. Pape v, Time, Inc., 419 F.2d 980 (7 Cir, 1969), rev'g

294 F.Supp. 1087 (N. DD. Hl. 1969) (evidence of aetyal malice suf-

ficient to go to jury): Stearn v:; MaclLean-Huainter, Ltd., 46 Fok. D.

76 (S.D.N: Y. 1969) (complaint sufficient to state cause of action).

°16. United States v. Diebold, Ine... 369 U.S. Bg 655 (1962):

Goldwater v. Ginzburg, supra at 337: Time, Ine. . McLaney, supra

‘at 571-72.

asserman Vv. Time, Inc., ee 2d —.(D..C. Cie, 1970)

Al4 | _Appen: lin A

? -

It is noisy. Not the least amount of noise sometimes is

‘aused by ‘the clacking of highheeled shoes going down the

fire escape outside a guest's window at 4 am.’?;-and (10)

the hotel has a. ‘‘sellout crowd’? for the week of April 6

through April 12, 1964. Bou Air also objected to a draw-

ing of the hotel at the beginning of the article.

Jenkins in writing the article relied on interviews with

persons who had stayed at the Bon Air, reséarched the

files of Time, Ine. with respect to Augusta and its baek-

ground, and. drew upon his thirteen years’ attendance at

the Tournament in Augusta and also upon the occasions

When he was a registered guest or visitor at the hotel.

After the article was completed and a month before its

publication, a Sports Hlustrated resei ee Sarah Pileggi,

checkud the article for accuracy by telephone cony ersations,

by personal interviews, by consuling Time, Ine. files and by

reading relevant published sources on golf tournaments and’

Augusta. Pileggi also sent a list of questions concerning

specified’ statements in the article to Sports Illustrated's

Atlanta correspondent, Jim Minter, who ‘with assistanee

from an Augesta newspaperwoman cheeked the accur acy

of these items. Detailed answers were returned and are

‘included in the affidavits. |

The distriet court examined the urticle and, in’ par-

ticular, the ten alleged “det famatory -stacements in light of

the various affidavits and answers .o inte rrogatories in the

record and found *that no. proof was adduced that had

‘the canvincing clarity which the. constittitional standard,

oe Ps

demands, This finding is clearly supported by the ree-

cord. Jenkins relied on his own experic nees at the Bon Air

in making: many of the stateme nts and, in addition, had the

-article thoroughly investigated: for accuracy hy members

of Time’s research staff. The ‘affidavits and answers to

of the research conducted by Time’ s staff. Bon Air pre-

Appendix A _ NALS.

sented no evidence that Time: or Jenkins published. the .

\. statements with knowledge of their falsity or with ““se-

‘rious doubts as to the truth of [the] publication.’’ Si.

Amant ve Thompson, 390 U.S. 727, 731 (1968) : Time, Inc.

. McLaney, supra.at 572-73.

Two alleged ‘defamatory statements merit further dis-

cussion: (1) the statement that, the ‘hotel. had a ‘white-

washed face’? and (2) the sketch- of. the hotel at the

beginning of: the article. In investigating the accuracy of .

the article, Time ’s researchers gave three different an-

swers: that the hotel was—white-yellowish color, that it

was painted outside white, and that it was painted a daz-

aling white. | ;

At the beginning of, the article Time ‘published a

sketch of the hotel and . surrounding grounds by Mare

Simont, who had visited the hotel several times during the

preparation of the sketch. ‘Bon Air objected to two areas

of the sketch: at the far end of the hotel three wooden

braces support the outer hotel Wall, and near the swimming

pool a small ‘amount of trash covers the ground. The re-

‘searcher’s report stated that during her inspection of the

hotel. the grounds. were-clean. In addition, Time admitted:

that the hotel walls were. not supported, by wooden braces.

These statements are clearly net 100% accurate. Truth

' or falsity, however, is not the constitutional test: the state-

ments must be published with actual knowledge of their

falsity or with reckless disregard for their falsity. We are

_ not convinced that Time’s decision to describe the hotel -

as having a “‘whitewashed face,’ instead of a ‘‘white-

yellowish face,’ an ‘‘outside white faée,”’ or a ‘*dazzling

white face,”’ is evidence that the statement was ‘published

with actual malice." In publishing the sketeh of the hotel,

" 17.-"A word is not a.crystal, transparent and unchanged, it is

the skin of a living thought and May ‘vary greatly in color and con-

tent according to the circumstances and the time in whiclt it is used.”

Towne v. Eisner, 1918, 245.U. S. 418, 425.

AIG | Ks Appendix A

as explained in its affidavits, Time attempted to convey to

its readers, in what amounts to a. ‘“artoon, the condition of

the hotel as-deseribed in the article.’ Again, the evidence

presented by Bon Air is not sufficient proof that the sketch

Was published by Time with, actual malice.”

Freedom of expression must have a necessary breath-—

ing space if it is to surviye.2” If these statements raise

factual issues of: actual matice, that eeessary breathing,

space becomes almost meaningless. As has. been: noted,

actual mali¢e is a constitutional issue to-be determined

initially by, the trial Judge on motion for summary jude-

ment... We are convinced that Bon Air has not presented

issues of fact. from whiell a jury could find that Time pub-

lished the article with actual knowledge of its falsity or with

a reckless disregard, as to whether or not it: was false.”

iy P “*) a . :

IS. We would be confronted with an entirely: different situation

if a trite photograph of the hotel had. been used with additional pic-

tures, oF wooden braces did trash superimposed en the photograph.

19.. The decisions int :\Wasserman y. Time, Inc, —.F, 24 —.

"(D. C:.Cir., Mar. 3, 1970), and Ragano v. Time, Inc., 302 F. Supp. *

= 4 2 ; ? . . + . ‘

1005. (M.D. Fla. 1969), are distinguishable. . Wasserman involved |

the same factual situation as: Ragano. Time had published a photo- .

—« graph of seven men sitting in a restaurant in Queens, New York.

The article referred to the men as “top Cosa Nostra hoodlums,” even

though Time knew. that Wasserman snd Ragano were present with:

the other five men only in an attorney-client relationship. This’ was

sufficient proof of actuak malice to survive Time's motion for sum-

mary judgment. 9 :

‘ 20. New York Times Co... Sullivan, supra at 285-86, :

A i 9 i

“21: The follawing «statement by Judge Tuttle in MeLaney seems

‘pertinent here: ay oa

“Where . >. it is plain that the record has been, fully developed ”

by depositions and -aflidavits on a metion for summary. judg—

ment, and such record: demonstrates that. construing all of the

facts and inferences t? be drawn therefrom -in favor of the

party against whom the judgment is entered, he avould not be

entitled to have a jury verdict stand, we have not hesitated to

~ hold that tke grant of summary judgment is proper.”

406 FF. 2d at 571-72. co, °.

‘Appendix &£ . jan i Al7

For these reasons we conclade that the district

did tiot err in granting. Ti

ment. The Judgment is

Pcourt

me’s motion for summary judg--

ere AFFIRMED.

. 3 | ,

oe 5

e a) :

° os . Sr ae ene ——

« .

.' 2

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