Opposition Brief — Deutcsh v. Birmingham Post Co.

Case No. 92-811 | DEC 7 1992

IN THE

Supreme Court of the United States

October Term, 1992

ARTHUR V. DEUTCSH,

Petitioner,

Vv.

BIRMINGHAM POST COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

BRIEF IN OPPOSITION

RIDES EY het ae

y (BEST AVAILABLE COPY

i

QUESTION PRESENTED FOR REVIEW

Whether the Court should review a dismissal of a libel

action brought by a public official where no court that has

considered the case has ever found a single element of the tort

of libel present.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW............. i

Sea GA oa an ckcueundebaduecess ili

SEAS NE MO Be i eo bie ce kde cen kaee cae 2

REASON FOR DENYING THE WRIT................ 6

REVIEW IN THIS COURT IS INAPPROPRIATE

BECAUSE THERE HAS NEVER BEEN A LI-

BELOUS STATEMENT PUBLISHED ABOUT

PETITIONER WITH OR WITHOUT ACTUAL

NRE bs ace ses ceecee eee 6

A. Petitioner Has Never Established That A False

Statement Was Made About Him............. 6

B. Petitioner Has Never Established By Clear And

Convincing Evidence That A False Statement

Of Fact Was Made With Actual Malice........ 8

CASPASE i dc skys chakawiexn keen anaes eanes 10

ill

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)... 8,9

Brenner v. Local 514, United Bhd. of Carpenters, 927 F.2d

SN isis db eckbeexdseawousaeeunels 7

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) ..... 10

Deutcsh v. Birmingham Post Co., 603 So. 2d 910 (Ala.

SOEE 80s 506545000 s bbl kd eek danas 3,5,8

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

Harte-Hanks Communications, Inc. v. Connaughton, 491

ee EE SUP 64a Awd wakdas dcnsade seam 7,9,10

Masson v. New Yorker Magazine, Inc., 111 S. Ct. 2419

EA CA CARec RKC SESS anes tkneducasekunnereue ks 8

McCaig v. Talladega Publishing Co., 544 So. 2d 875 (Ala.

ie gt SE TEE ET EEE CE Ne Me iN 7

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) . passim

Pemberton v. Birmingham News Co., 482 So. 2d 257 (Ala.

WE Kika Cisecba stn cdbddedtaacercarn cee 8

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767

ere eee F Pe Ae ore eee (EA Fee 1,7,9

Shutt v. Harte-Hanks Communications, Inc., 7 Media L.

Rep. (BNA) 2559 (E.D. Mich. 1981)............... 9

St. Amant v. Thompson, 390 U.S. 727 (1968)........... 9

White v. Mobile Press Register, Inc., 514 So. 2d 902 (Ala.

PUTA 6 0 WA ch cbbkehd keds cokes Winans cnen 7

Constitutional Provisions

hice Ms ES Ea ss kv hk ca bo ekeclataetinoe ee 1

iV

TABLE OF AUTHORITIES — (Continued)

Page

Rules P

Pes Sr A, PUES wc cb Ce ben Gu oho ech eras )

Statutes

Ge SPs OE Cs no show co veuvcsucewncneecscubin 7

Miscellaneous Materials

Restatement (Second) of Torts § 558 (1977)............. 7

Case No. 92-811

LL A Lae a a a Ea SS Re

IN THE

Supreme Court of the United States

October Term, 1992

ARTHUR V. DEUTCSH,

Petitioner,

Vv.

BIRMINGHAM POST COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

BRIEF IN OPPOSITION

Respondent Birmingham Post Company (“the news-

paper’),' publisher of the Birmingham Post-Herald (“Post-

Herald”), respectfully prays that the instant Petition be denied.

Review in this Court is inappropriate because the First Amend-

ment to the United States Constitution prohibits a public official

from recovering damages for libel unless he proves by clear and

convincing evidence that allegedly defamatory statements were

false and were made with actual malice. See Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); New York

Times Co. v. Sullivan, 376 U.S. 254 (1964). Petitioner has not

1. Birmingham Post Company is a wholly-owned subsidiary of Scripps

Howard, Inc., which is a wholly-owned subsidiary of the E. W. Scripps

Company.

2

challenged the fundamental holding of the decision below —

that the statements at issue are true. Instead, Petitioner contin-

ues to complain about the way he was treated by the newspaper

and blame his abundant problems in Birmingham on accurate

news reports.

STATEMENT OF THE CASE

This case began more than a decade ago, when the City of

Birmingham hired Petitioner as its police chief.2 A native of

Brooklyn, New York, with no previous experience or contacts in

the Birmingham Police Department, Petitioner was employed

on a probationary basis for his first year. He successfully

completed the first year, and was officially appointed police chief

of Birmingham in December 1982. Shortly thereafter, he be-

came embroiled in one controversy after another with different

segments of the government in Birmingham. The Alabama

Ethics Commission investigated his decision to accept gifts of

large appliances from local businessmen and a discounted

mortgage loan from a local banker. See Record of the Proceed-

ings Below at pages 1840-43 (“R. 1840-43”), R. 1890-98. The

City Council resisted Petitioner’s demand for payment of his

moving expenses, and one City Council meeting turned into an

ugly shouting match between Deutcsh and Councilman Russell

Yarbrough. R. 1822-23. Mayor Richard Arrington, who had

appointed Petitioner, investigated allegations that Petitioner

mistreated two disabled arrestees, and ordered the police

2. At the time the articles were written and the lawsuit was filed,

Petitioner Arthur Deutcsh was chief of the Birmingham Police Department.

He was convicted of misdemeanor records tampering, on May 24, 1991, and

sentenced to one year of hard labor and a $2,000 fine. He appealed the

conviction, and it was overturned by the Alabama Court of Criminal Appeals

on July 24, 1992. The case was submitted to the Supreme Court of Alabama for

preliminary examination, but the court has yet to decide whether it will issue

a writ of certiorari. After his conviction, Petitioner was placed on paid,

administrative leave from his duties as police chief. In January 1992, Petitioner

fcll down the steps of Birmingham City Hall. He was diagnosed with neck and

back injurics and awarded a disability pension of $53,732 per year by a 3-2 vote

of the Birmingham Retirement and Relief System.

3

interna! affairs department to look into allegations that Peti-

tioner beat a suspect during an interrogation. R. 1650, 1927-30.

And the Birmingham Fraternal Order of Police (“FOP”) clashed

repeatedly with Deutcsh over allegations that he selectively

enforced department regulations against FOP leaders. See, e.g.,

R. 1719-20, 2396, 2398-400, 2505-41.

Plagued by controversy, Deutcsh’s tenure as police chief

was covered by the local media, including the newspaper, which

dutifully informed the citizens of Birmingham about the ques-

tionable conduct of the public official charged with ensuring

their safety.

After nearly two years of news coverage, Petitioner filed his

original complaint on November 19, 1984. It alleged that every

word of fifty-seven separate newspaper articles and editorials

was both false and defamatory. R. 1-6. To this day, Petitioner

has failed to prove that even a single word of a single article is

false. See Deutcsh v. Birmingham Post Co., 603 So. 2d 910, 912

(Ala. 1992).

The procedural history of this case demonstrates the con-

siderable effort and expense required to elucidate Petitioner’s

claims. On February 11, 1985, the newspaper asked the Ala-

bama Circuit Court to dismiss the complaint or force Petitioner

to identify which specific statements in the fifty-seven articles

were false. Petitioner responded by amending his complaint,

but again failed to identify, with specificity, any allegedly false

and defamatory statements, prompting the newspaper to file a

second motion to dismiss. While the motion was pending,

Petitioner again amended his complaint, on April 26, 1985. The

Second Amended Complaint, Petitioner’s third opportunity to

specify false and defamatory statements, failed to do so. The

newspaper then withdrew its pending motion and moved to

dismiss the Second Amended Complaint for failure to state a

claim and for failure to comply with the statute of limitations. On

October 11, 1985, the court granted the newspaper’s motion in

part, dismissing Petitioner’s claims based on nine time-barred

articles.

In the fall of 1985, the parties embarked on extensive

discovery. Petitioner noticed the depositions of twenty-two

4

persons. The newspaper propounded its First Set of Interroga-

tories on November 22, 1985. Petitioner did not respond within

the required thirty days, and the newspaper filed a motion to

compel on February 11, 1986. No answers were received and,

on April 14, 1986, the newspaper moved to dismiss the lawsuit

based on Petitioner’s failure to respond to discovery requests.

Petitioner filed incomplete interrogatory answers, and, on Oc-

tober 14, 1986, the court ordered Petitioner to supplement

those answers in response to another motion to compel by the

newspaper. No supplemental responses were received and, on

December 16, 1986, the newspaper moved to dismiss the case

for failure to comply with a court order. Petitioner finally

supplemented his interrogatory answers on December 29, 1986,

over a year after they were served.

A similar scenario unfolded after the newspaper requested

documents on November 22, 1985. No documents were pro-

duced within thirty days, and the newspaper filed a motion to

compel that the court granted on December 31. Petitioner still

failed to produce any documents and, on April 3, 1987, the

newspaper filed another motion to dismiss based on Deutcsh’s

failure to comply with court orders. Petitioner then produced a

number of documents, but did not fully respond to the news-

paper’s request. The newspaper followed, on October 13, 1987,

with a third motion requesting dismissal of the action based on

Deutcsh’s failure to comply with court orders.

On June 29, 1988, after nearly three years of frustrated

attempts to conduct discovery, the newspaper filed another

Motion to Compel a More Definite Statement. The court

granted this motion and entered an order to that effect on

December 21, 1988. When Petitioner failed to comply, the

court entered another order on February 22, 1989. Then, on

October 25, 1989, the newspaper filed yet another motion to

dismiss based on Deutcsh’s failure to comply with court orders

because, after nearly five years of costly litigation, Petitioner still

had not identified any specific statements as allegedly false.

Eventually, on April 24, 1990, Petitioner identified 137 specific

Statements in thirty separate articles which he claimed were

false and defamatory.

—

5

Having finally succeeded in flushing out Petitioner’s claims,

the newspaper filed a motion for summary judgment on Sep-

tember 21, 1990. After considering the issues for nearly a year,

the Circuit Court granted the motion and dismissed the case

with prejudice on September 16, 1991.

Petitioner appealed the Circuit Court’s dismissal of his

claim to the Alabama Supreme Court. Although the trial court

had winnowed the case down to thirty articles, his appeal only

addressed thirteen. The Alabama Supreme Court held that

Deutcsh had waived any claim of libel based on the other

seventeen articles and upheld the dismissal of his remaining

claims on multiple grounds after considering the voluminous

record and briefs filed by both parties. See Deutcsh, 603 So. 2d

at 911-12. The court’s opinion states:

(1) there was “no clear and convincing evidence of libel

in any of the statements in the articles”;

(2) “Deutcsh failed to present evidence that the state-

ments in the non-editorial articles were false and

defamatory .. .”; and

(3) “Deutcsh failed to show that any of the statements of

public concern in the editorials contained a provably

false factual connotation.”

Id. at 912. Petitioner applied for rehearing, which was denied on

August 7, 1992.

Thus, after eight years of litigation and extensive effort on

the part of the newspaper and the Alabama courts, Petitioner’s

claims have been limited to twelve‘ articles and editorials

published in the Post-Herald during 1983, 1984, and 1985.

These news stories are unremarkable reports about routine

controversies that occur in many municipalities every day. Their

3. Petitioner's Alabama Supreme Court Brief and Reply totaled ninety-

one pages, excluding appendices. The newspaper's brief was sixty-two pages

and included a four-volume appendix of over 1,500 pages.

4. Petitioner requested that the Alabama Supreme Court review claims

based on thirteen articles, but only references twelve in his Petition to this

Court. Accordingly, Petitioner has abandoned any review of a claim based on

the omitted May 23, 1984 article. See infra at 7.

6

ordinariness hardly makes them less newsworthy. United Press

International, for example, carried seventy-four separate stories

about Deutcsh’s exploits between November 1983 and February

1985. See, e.g., R. 1959, 2017,-2393-94, 2396-97.

This Petition is nothing more than the final stage of a public

official’s attempt to make the newspaper “pay” for reporting the

news. Unable to prevail on the merits, he has subjected the

newspaper to years of costly litigation. Petitioner’s actions have

shown that he is, as Mayor Arrington stated, “too sensitive to

criticisms, sometimes needlessly abrasive, and quite

‘bull-headed.’” R. 2488 (February 1985 performance evaluation

of Deutcsh submitted to Jefferson County Personnel Board by

Mayor Arrington).° As a visible public official whose conduct had

a discernable impact on the everyday life of each citizen of

Birmingham, Petitioner could hardly expect to remain free from

news coverage or commentary. But apparently he had precisely

such expectations.

REASON FOR DENYING THE WRIT

REVIEW IN THIS COURT IS INAPPROPRIATE BECAUSE

THERE HAS NEVER BEEN A LIBELOUS STATEMENT

PUBLISHED ABOUT PETITIONER WITH OR WITHOUT

ACTUAL MALICE,

A. Petitioner Has Never Established That A False State-

ment Was Made About Him.

To establish a prima facie case of libel under Alabama law,

Petitioner must prove by clear and convincing evidence that

each allegedly defamatory statement was:

(1) false and defamatory;

(2) of and concerning him;

(3) not privileged; and

(4) published with actual malice.

5. Mayor Arrington also noted Petitioner’s “tendency to be argumenta-

tive” and “disagrecable,” his inability “to maintain his ‘cool’ in the face of

hostile inquiry and accusation,” and his “tend[ency] to ignore advice which

differs from his opinions.” R. 2157 (February 1984 performance evaluation), R.

2488 (February 1985 performance evaluation).

7

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. at 775-76;

New York Times Co., 376 U.S. at 286-91; McCaig v. Talladega

Publishing Co. , 544 So. 2d 875, 877 (Ala. 1989), citing Restate-

ment (Second) of Torts § 558 (1977); White v. Mobile Press

Register, Inc. , 514 So. 2d 902, 904 (Ala. 1987).

Petitioner has chosen not to request review by this Court of

the central holding below that he had failed to prove falsity. He

quibbles only with the lower court’s consideration of evidence

relating to actual malice. See Petition at 27. It must, therefore,

be presumed that Petitioner has abandoned his claim of falsity

and that his long road in this litigation ends with the tacit

acknowledgment that the newspaper’s reports about his prob-

lems in the community were true. See Harte-Hanks Communi-

cations, Inc. v. Connaughton, 491 U.S. 657, 694 (1989)

(“Connaughton”) (Blackmun, J., concurring) (“Petitioner has

abandoned the defense of truth. . . . We therefore must

presume that the jury correctly found that the article was false

.. .”); Brenner v. Local 514, United Bhd. of Carpenters, 927

F.2d 1283, 1298 (3d Cir. 1991) (failure to include a legal

argument in a statement of the issues waives that argument).

Truth is an absolute defense to any action for defamation.

By abandoning and otherwise failing to prove falsity, Petitioner

has neglected to establish an essential element of any defamation

action. See, e.g., New York Times Co. , 376 U.S. at 271-72. The

Alabama Supreme Court, after finding Petitioner could not

establish even the threshold element of libel (i.e. , falsity), chose

not to address the second and third elements — whether the

articles. were of and concerning Petitioner and whether the

publication was privileged — although both issues were briefed

for the court. The court did go on to consider Petitioner’s actual

malice argument, and found it utterly lacking.®

6. Even if Petitioner were correct in his unsupported assertion that the

Alabama Supreme Court did not consider evidence of actual malice, it would

not alter the fact that dismissal of this action was appropriate because the

statements at issuc are truce. See New York Times Co. , 376 U.S. at 271-72; see

also 28 U.S.C. § 2111 (1988) (“[o}n the hearing of any . . . writ of certiorari in

any case, the court shall give judgment after an examination of the record

without regard to errors or defects which do not affect the substantial rights of

the parties”).

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8

B. Petitioner Has Never Established By Clear And Con-

vincing Evidence That A False Statement Of Fact Was

Made With Actual Malice.

It 1s now firmly established that the Constitution of the

United States requires a public official, in order to prevail in a

libel suit, to prove by clear and convincing evidence that each

false and defamatory statement was published “with knowledge

that it was false or with reckless disregard of whether it was false

or not.” New York Times Co., 376 U.S. at 279-80; see also

Masson v. New Yorker Magazine, Inc. , 111 S. Ct. 2419, 2429-30

(1991). If a public official fails to make such a showing at the

summary judgment stage, summary judgment for the defendant

is appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 254-56 (1986) (federal law); Pemberton v. Birmingham News

Co. , 482 So. 2d 257, 260 (Ala. 1985) (Alabama law).

Petitioner’s claim that the Alabama Supreme Court did not

properly consider his evidence of actual malice is unsupported

by the record and belied by the court’s own words. The court

left no doubt that it considered and rejected Petitioner’s prof-

fered evidence of actual malice as unreliable and insufficient to

meet his weighty burden. Its opinion states that the court

“thoroughly” reviewed the articles at issue and “[v]iew[ed] the

evidence in a light most favorable to Deutcsh . . . .” Deutcsh,

603 So. 2d at 912. After reviewing a record of over 2,500 pages,

the court’s decision not to discuss specific evidence of alleged

actual malice, either in support of or contrary to Petitioner’s

claims, is understandable and perfectly proper.’

No reasonable jury could find that a specific false statement

here was published with actual malice. See Anderson, 477 U.S.

at 257 (“reasonable jury” standard applies to motion for sum-

mary judgment on the issue of constitutional malice). By defi-

nition, actual malice cannot exist where falsity does not. See

7. The court was well aware of Deutcsh’s relentless argument that the

newspaper was “out to gct” him, see, e.g., Petition at 3, and found the

argument unavailing. Pctitioncr’s Bricf to the Alabama Supreme Court quoted

the portions of his deposition supporting his actual malice claim; those same

deposition cxcerpts were again referenced in his Reply Brief. See Brief and

Argument of Appellant Arthur V. Deutesh at 7-9; Reply Brief of Appellant

Arthur V. Deutesh ai 4.

9

Philadelphia Newspapers, Inc., 475 U.S. at 778 (“evidence

offered by plaintiffs on the publisher’s fault . . . will generally

encompass evidence of the falsity of the matters asserted”);

Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (actual malice is a

subjective standard requiring proof that the publisher had a

“high degree of awareness of . . . probable falsity . . .”); Shutt v.

Harte-Hanks Communications, Inc., 7 Media L. Rep. (BNA)

2559, 2562 (E.D. Mich. 1981) (“{a]n action for libel cannot be

based on a claim of lack of fairness, so long as the article in

question is truthful”). And, because Petitioner has not carried

his burden of proving that even a single statement in the articles

is false, he cannot prove actual malice.

Petitioner’s “evidence” of actual malice is nothing but bald

allegations and invective. He claims that, at a-cocktail party, the

_ then-editor of the Post-Herald threatened to run him out of

town, but the only proof offered for this highly implausible

Suggestion is Petitioner’s own uncorroborated deposition testi-

mony. He also claims that the author of several editorials relied

on “known unreliable sources,” but no evidence or other proof

has been adduced or offered in the course of this eight-year

litigation. Without support, these conclusory allegations are

insufficient as a matter of law. See Anderson, 477 U.S. at 248-49.

Finally, Petitioner offers the impressions of Mr. Glosecki, a

Professor of Old English Literature at the University of Alabama

with no journalistic experience. Glosecki’s notions are not

competent evidence of actual malice and address an issue which

is left to the province of a jury in a libel case — the meaning of

language.

This hodgepodge falls far short of proving by clear and

convincing evidence that the newspaper was aware the state-

ments were false or “entertained serious doubts as to the truth

of [the] publication.” St. Amant v. Thompson, 390 U.S. 727, 731

(1968). Instead, Petitioner tries to shoehorn his bare allegations

into the “‘unmistakably’ sufficient” evidence of actual malice

addressed by this Court in Connaughton. See 491 U.S. at 693,

8. Although Petitioner refers to Glosecki as an expert, no experts have

been designated or qualified in this case because there was no trial below. See

Fed. R. Evid. 702.

10

quoting Curtis Publishing Co. v. Butts, 388 U.S. 130, 172

(1967). This case, however, is not Connaughton. There, the

defendant intentionally neglected to interview the witness most

likely to corroborate or dispute-the statements, and chose not to

listen to tape recordings which were available to disprove the

statements. 491 U.S. at 683. Here, the articles and editorials are

ordinary, balanced reports of typical controversies surrounding a

local public official. And, unlike the statements in Connaughton,

they are true.

CONCLUSION

_ The articles and editorials at issue are the bread and butter

of a local newspaper. They are reports, and commentary, about

a chief of police who was accused of committing police brutality,

accepting gifts from local businessmen, mistreating a paraplegic

and a quadraplegic, and badgering officers who were active

leaders in the police union. From time to time, public officials in

America doggedly pursue libel cases against newspapers for

accurately reporting such events. Twenty-five years after the

Commissioner of Montgomery, Alabama generated New York

Times Co. v. Sullivan, a former Police Chief in Birmingham,

Alabama has now reminded us that it can take eight years for a

meritless libel case to reach a merciful end.

For the foregoing reasons, Respondent Birmingham Post

Company respectfully requests that this Court deny the Petition

for Writ of Certiorari.

Respectfully submitted,

BRUCE W. SANFORD

Counsel of Record

HENRY S. HOBERMAN

STEPHANIE S. ABRUTYN

BAKER & HOSTETLER

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 861-1500

Counsel for Respondent