Petition for Writ of Certiorari — Pearson v. Gariepy

‘ i, Sitti. ices

OCT 26 1°53

aimiactans Beontpheeabe “ai

IN THE

Supreme Court of the Anited States

Ocrosrer Term, 1953

wo. 43 6

Drew Pearson anD AMERICAN Broapoastine Company, Ino.,

a Corporation, Petitioners, a :

v.

Mary G, Garrery, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

. O.

Of Counsel:

Trenz Kennepy ;

Epwarp G. VinLaLon ¥

Roserts & McInnis

DeSales Building

Washington 6, D. C.

Joun Donovan, Esquire

920 Southern Building

Washington, D. C.

Purss or Braow S. D.c,

“ss, aids elit

INDEX

Page

Petition for Writ of Certiorari .............cccceeees 1

Contes BOW 66 ii a 1

WORE 5 os ne ve bavi apa kee thee een 2

Qusetote Preseited 665i kes aS 2

RRCPNNE TURIN ion ¢ sannnxed kbs badinss cn 3

OMNIA, i's is dny ho Sea shan cueuas cabana 3

Specifications of Errors to be Urged ............. 7

Reasons for Granting the Writ .................. 8

Ee RD arn er Aken Nahe eee eK 25

TABLE OF CASES

Brewer v. Hearst Pub. Co. (C.A. 7, 1950), 185 F. 2d

DOD ig ow cd sie Gy Via uned Seeks REA SS ART eae 12, 19

Bridges v. State of California (1941), 314 U.S. 252 ..11, 15

Caldwell v. Hayden (1914), 42 U.S. App. D.C. 166... 17

Cannon v. Bee News Pub. Co. (D.C. Neb. 1933), 8 F.

UD. MOE 66s i a ee 17, 20

Craig v. Harney (1947), 331 U.S. 367 .............. 11

Farrell v. New York Evening Post, 3 N.Y.S. 2d 1018,

167 Mise. 412 ......... Prey ee ee or as 14

Gariepy v. U. S. (C.A. 6, 1951), 189 F. 2d 459 ....... 5, 6

Holtz v. National Furniture Co. (1932), 61 U.S. App.

BAK Oy OFF OO OO oi vc oka coencbeu shine wikss

Lorentz v. R.K.O. Radio Pictures (C.A. 9, 1946), 155

i OG iene A eee es INC aks ee 19

Mohn v. Tingley (1933), 191 Cal. 470, 217 Pac. 733 ... 23

Myerson v. Hurlburt (1938), 68 U.S. App. D.C. 360, 98

Bs RED svn cnbhad hb bass Mee CeN UAE 23

eee pe ee er

li Index Continued |

Page |

Pinn y. Lawson (1934), 63 U.S. App. D.C. 370, 72 F. 2d

742

PERE SEE ESD NRE ee eat I ee 12 |

Sullivan v. Meyer (1937), 67 U.S. App. D.C. 228, 91 F.

DU PON aN ahd Goes coe ais, See a ease 25

na SRSA OR RRS AA Rain ea eaas 25

Woodhouse v. Woodhouse (1929), 99 Vt. 91, 130 Atl.

758

CONSTITUTION AND STATUTES

Constitution of the United States:

wae ce 2, 3, 7, 8, 9

Fifth Amendment

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IN THE

Supreme Court of the Anited States

Ocroser Term, 1953

ae

No.

Drew Pearson anp AMERICAN Broapcastine Company, Ino.,

a Corporation, Petitioners,

v.

Mary G. Gariepy, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

To the Honorable Chief Justice, and the Associate Justices

of the Supreme Court of the United States:

The petitioners, appellees below, Drew Pearson and

American Broadcasting Company, a corporation, pray that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the District of Columbia

Circuit entered in the above cause on June 11, 1953 (R. 26).

OPINIONS BELOW

The opinion and judgment of the majority of the United

States Court of Appeals for t..e District of Columbia Cir-

cuit and the minority opinion are set forth at R. 23-26.

2

The opinion of the United States District Court for the

District of Columbia rendered on April 29, 1952 which was

reversed, is set forth at 104 F. Supp. 681, R. 15A-21A. The

order of the United States District Court for the District

of Columbia entered on May 5, 1952, is set forth at R. 21A.

JURISDICTION

The judgment of the United States Court of Appeals for

the District of Columbia Circuit was entered on June 11,

1953 (R. 26). An order denying a petition for rehearing

was entered by majority vote on July 28, 1953 (R. 38).

The jurisdiction of this Court is invoked under 28 U.S.C.

1254.

QUESTIONS PRESENTED

Petitioner Drew Pearson broadcast over the facilities of

the American Broadcasting Company on January 30, 1949

the following:

**Detroit. The Justice and Treasury Departments have

ordered the prosecution of Dr. Bernard F. Gariepy of

Royal Oak, Michigan, in a strange income tax case

indirectly involving Father Coughlin. Dr. Gariepy’s

defense is that Father Coughlin gave him $68,000 be-

cause of alienation of affection of Mrs. Gariepy by

the radio priest. The Justice Department plans to

prosecute Gariepy anyway.’’

And on February 6, 1949:

‘*Despite denials, the income tax case of Dr. Bernard

F. Gariepy, indirectly involving Father Coughlin, will

be brought to trial. When that trial takes place we will

see who was really telling the truth.’’

The action was brought by the divorced wife of Dr. Gariepy.

1. Did the United States Court of Appeals for the District

of Columbia Circuit restrain freedom of speech and the

press contrary to the First Amendment and the due process

clauses of the Fifth and Fourteenth Amendments by ruling

atl

SS

3

that a fair and impartial report of a defense of a taxpayer

in a tax evasion proceeding might libel a third party?

2. In construing the words of the broadcasts, which of the

following is the proper legal standard: whether the words

might possibly be understood as defamatory; or, whether

a defamatory construction is reasonable under the cir-

cumstances?

3. Whether reference to a $68,000 settlement of an aliena-

tion of affection claim alone can give to the words ‘‘aliena-

tion of affection’’ a connotation of unchastity?

4. Whether a Circuit Court remand for a jury trial of a

libel action where the basic complaint does not allege libel

per se and is without a sufficient showing of special dam-

ages, denies to defendant the traditional assurances of due

process provided by the common law and the Fifth and

Fourteenth Amendments.

STATUTES INVOLVED

The pertinent Constitutional provision involved is

Amendment I to the Constitution of the United States,

U.S.C. Vol. I, page XLII, which reads: ‘‘Congress shall

make no laws ... abridging the freedom of speech, or of

the press; * * *’’? The due process clauses of the Fifth and

Fourteenth Amendments are also involved.

STATEMENT

Dr. Bernard F. Gariepy is a medical doctor who main-

tained his office and practice in Royal Oak, Michigan. In

1935 he married Mary G. Gariepy and they lived separately

while he was undergoing further training until 1938, when

they set up housekeeping in Royal Oak. Domestic diffi-

culties developed and i¢acy Gariepy consulted her parish

priest, the Reverend Father Charles E. Coughlin, concern-

ing her problems, but the Gariepys were divorced in Pon-

tiac, Michigan, in 1943 after a brief separation in 1942.

(Mary G. Gariepy Deposition, pp. 28, 33, 54, 71)

4

During the years 1946 through 1948, the Bureau of

Internal Revenue, under statutory authorization, instituted

proceedings against Dr. Gariepy to investigate him for in-

come tax evasion. Dr. Gariepy was represented in these

proceedings by his general counsel, his tax consultant and

his tax attorney. In testifying before Treasury Agents in

1946, Dr. Gariepy stated that his lawyer would explain an

alleged discrepancy of $91,800 (Kitchen Deposition, pp.

6-8) in his unreported income and his lawyer supposedly

had a ruling from the Bureau of Internal Revenue saying

that the money was non-taxable (Kitchen Deposition, p. 9).

Dr. Gariepy told his attorney Gillespie that he had received

a sum of money by reason of, as he described it, ‘‘an aliena-

tion of affection’’ (Gillespie Deposition, p. 18). On October

28, 1946 and November 21, 1946, Dr. Gariepy introduced

two formal statements in the Treasury Department proceed-

ing attempting to explain the purpose of receipt of the

alleged additional income. Gariepy told his tax consultant

that he had received a gift of $50,000 in 1942 and $18,000

in 1943 and 1944 (Whitfield Deposition, p. 49) from Father

Coughlin (Whitfield Deposition, p. 50), $50,000 in cash

being delivered to him by Father Coughlin in a paper sack

(Whitfield Deposition, p. 52). Gariepy’s tax consultant

advised him that such ‘‘gifts’’ were not taxable (Whitfield

Deposition, p. 29). Gariepy was unable to carry the burden

of proving these facts in the Treasury Department proceed-

ing, and the determination was made to transfer the case

to the Department of Justice with the recommendation of

prosecution.

During the summer of 1948, official proceedings author-

ized by statute were conducted by the Department of Justice

in its offices in Washington, D.C. Present at the hearings

representing Gariepy were his tax consultant Whitfield and

his tax attorney O’Hara; representing the Government

were the then Head of the Tax Division and one of his asso-

ciates. Gariepy’s defense of having received $68,000 from

Father Coughlin for ‘‘alienation of affection’? was again

—

5

raised, but the Department of Justice decision was also

adverse to Gariepy. “Ie had failed to prove his case, and

the administrative determination was made—Gariepy

would be prosecuted for income tax evasion.

Subsequently, petitioner Drew Pearson came on the air

over the facilities of the American Broadcasting Company

and reported on the decisions reached in these administra-

tive proceedings. On January 30, 1949, he broadcast the

following:

‘*Detroit. The Justice and Treasury Departments have

ordered the prosecution of Dr. Bernard F. Gariepy of

Royal Oak, Michigan, in a strange income tax case

indirectly involving Father Coughlin. Dr. Gariepy’s

defense is that Father Coughlin gave him $68,000 be-

cause of alienation of affection of Mrs. Gariepy by the

radio priest. The Justice Department plans to prose-

cute Gariepy anyway.’’ (R. 10A)

And on February 6, 1949, he reported:

‘*Despite denials, the income tax case of Dr. Bernard

F. Gariepy, indirectly involving Father Coughlin, will

be brought to trial. When that trial takes place we

will see who was really telling the truth.” (R. 10A)

This report of petitioner Drew Pearson was confirmed

on April 5, 1949, when a then Assistant Attorney General

publicly announced in the Detroit Free Press that the

Gariepy case would be brought to trial. Gariepy was in-

dicted on April 29, 1949, and tried from October 28 through

November 11, 1949. At the trial, one of his defenses was

the same as reported by petitioner Drew Pearson. He

lost again, and was convicted of tax evasion. The convic-

tion was affirmed by the United States Court of Appeals for

the Sixth Cireuit. Gariepy v. U. S., 189 F. 2d 459.

Long after her former husband’s trial and almost seven

years after the divorce, respondent, Mary G. Gariepy, on

January 28, 1550 filed a complaint for libel against peti-

tioners alleging that mention of the alienation of affection

6

defense of Dr. Gariepy to the tax evasion charge in the

broadcast was tantamount to accusing plaintiff of unchas-

tity while a married woman. The answers admit the

language of the broadcasts, and defend on the grounds that

the broadcasts were fair reports of executive and subse-

quent judicial proceedings, were true in substance, and con-

stituted fair report and comment on matters of public

interest (R. 8A-13A).

It is a matter of public record that the alleged libelous

statements of Drew Pearson were true. Dr. Gariepy was

prosecuted for income tax evasion. He did present as one

defense the allegation that he had received certain moneys

from ‘‘a prominent citizen of Royal Oak, Michigan’’ and

that these moneys were non-taxable for the reason that,

among other reasons, they were given to him by the ‘ promi-

nent citizen’’ because of a relationship between the giver

and Gariepy’s wife. All these facts appear in the public

transcript of the trial and in the opinion of the United

States Court of Appeals for the Sixth Circuit in the case of

Gariepy v. U. S., 189 F..2d 459, 463. They also appear, in

substance, in depositions which supported the motion for

summary judgment (R. 16A, 17A). While the appellate

court in the Gariepy tax case did not mention Father

Coughlin by name, his identity as a “prominent citizen of

Royal Oak, Michigan’’ is made clear in the transcript and

the depositions.

Petitioners moved for summary judgment and contended

that the words in the alleged libel do not support the innu-

endo of unchastity and were therefore not libelous, and that

the publications were protected by the defenses of qualified

privilege and fair comment (R. 13A). The district court

ruled that the reasonable and usual meaning of the words

‘‘alienation of affection’’ used in the broadcast do not sup-

port an innuendo which would make such words defamatory

and that one reporting the news should not be ‘‘charged

with liability by giving to statements made a strained

and unusual meaning te afford a basis for an evil innuendo

Lo

ee

7

when the usual meaning of such words is not evil,’’ and

granted the motion for summary judgment. 104 F. Supp.

681. The United States Court of Appeals for the District

of Columbia Circuit reversed the judgment of the District

Court in a two-to-one decision on June 11, 1953, and rehear-

ing was denied (also by a two-to-one decision) by order

dated July 28, 1953.

SPECIFICATION OF ERRORS TO BE URGED

The Court of Appeals erred:

1. In failing to find that the alleged libelous broadcasts

were accurate news reports of a tax evasion case under

investigation by the Treasury Department concerning a

matter of public interest and that such reports are pro-

tected by the First, Fifth and Fourteenth Amendments from

the necessity of proving the truth of contentions accurately

reported.

2. In failing to find that the statement made in the broad-

cast, “Dr. Gariepy’s defense is that Father Coughlin gave

him $68,000 because of the alienation of affection of Mrs.

Gariepy by the radio priest,’’ was not defamatory of the

plaintiff and that the mentioning of her name was necessary

in order to give an accurate account of a matter of public

interes‘.

2. In finding that the words, ‘‘alienation of affection,”’

as used in the broadcast in connection with the defense

offered by Dr. Gariepy might be understood as implying

that the plaintiff was an unchaste wife and that therefore

the jury should be permitted to decide whether they actually

were so understood.

4. Having ruled that the nature of the publication was

a jury question and thus not libelous per se, in failing to

find that the complaint did not state a cause of action

because of the absence of sufficient allegations of special

damage.

Cie

8

REASONS FOR GRANTING THE WRIT

1. In failing to affirm the summary judgment for peti-

tioners, the United States Court of Appeals for the District

of Columbia Circuit deprived petitioners of the rights of

free speech and press guaranteed by the First Amendment

to the Constitution and the protection that should be af-

forded to one reporting news against being charged with

liability for so doing by giving to statements made a

strained and unusual meaning to afford a basis for libel

action, and thus has decided a question of substance and

general importance relating to the construction and appli-

cation of the Constitution. The due process clauses of the

Fifth and Fourteenth Amendments extend the First Amend-

ment protections to judicial action which restrict free speech

as effectively as Acts of Congress.

2. The decision of the United States Court of Appeals for

the District of Columbia Circuit in reversing the judgment

of the United States District Court for the District of

Columbia on the theory that the term ‘‘alienation of affec-

tion’’ might be understood to support an innuendo of un-

chastity as charged in the complaint is in conflict with the

rule followed by the United States Court of Appeals for the

Fourth Cireuit in Phillips v. Union Indemnity Co. (1928),

28 F. 2d 701, that the defamatory character of a publication

depends on whether, giving the words their reasonable and

usual meaning, they were reasonably susceptible of a de-

famatory meaning, not whether they can possibly be con-

strued so as to have a defamatory meaning.

3. The ruling of the United States Court of Appeals for

the District of Columbia Circuit that because of the amount

of money allegedly paid to Dr. Gariepy, the words ‘‘aliena-

tion of affection’’ might be found by a jury to impute

unchastity to the respondent where the words in their usual

and legal meaning simply connote a change in mental atti-

tude of one spouse toward the other, so far departs from

judicial precedent and from the usual and accepted prin-

Nal ea nee area

9

ciples applied in determining the defamatory character of

the words as to call for an exercise of this Court’s power

of supervision.

4. In remanding the case for jury trial where the com-

plaint fails to allege libel per se or to present a sufficient

showing of special damages, the appellate court so seriously

misconstrued the requirements of common law and Fifth

and Fourteenth Amendment due process as to call for re-

view of its action by this Court.

1. Accurate news reports of an official proceeding are

protected by the First Amendment to the Constitution, as

well as by the Fifth and Fourteenth Amendments.

The effect of the decision of the court below is to require

any news commentator reporting on an official proceeding

to submit to trial by jury on the issue of whether some of

the words he used might be considered defamatory by a

small segment of the population, even though the words are

not defamatory by themselves and the report itself is fair

and impartial. We submit the requirement of jury trial

under such circumstances is as effective a muzzle on the

exercise of the constitutional freedom of press as an Act

of Congress and represents a clear-cut deprivation of prop-

erty rights without due process of law under the Fifth and

Fourteenth Amendments. When juries are allowed to de-

cide questions of law which should be reserved to the court,

the heavy damages and expenses to which a defendant may

be forced to submit can become a most effective restraint

on freedom of the press. Unless the court below is reversed,

news commentators will be wrapped in a legalistic straight-

jacket which will prevent them from truthfully reporting

news of public interest unless they are prepared to vouch

for the accuracy of all defenses or allegations asserted by

a person whose activities are reported.

The first question to be explored in this case is how far

does the First Amendment go toward protecting a defend-

ant in a libel case who has fairly and impartially reported

10

an official proceeding, We recognize that essential parts of

the question are whether his reporting was fair and im-

partial and whether the proceeding covered was an official

proceeding. But analysis should begin with the meaning

of the First Amendment.

Justice Holmes put the issue squarely in The Common

Law, Modern Library Edition, p. 139, when he said of

defenses in slander and libel cases that:

‘*Again, the real substance of the defense is not that

the damage was not intended ... ; but that whether it

was intended or not... , the manifest facts and circum-

stances under which he said it were such that the law

considered the damage to plaintiff of less importance

than the benefit of free speaking.” (Emphasis

supplied)

In West Virgimia State Board of Education v. Barnette

(1943), 319 U.S. 624, 638, Justice Jackson said for the

majority:

‘“‘The very purpose of a Bill of Rights was to withdraw

certain subjects from the vicissitudes of political con-

troversy, to place them beyond the reach of majorities

and officials and to establish them as legal principles to

be applied by the courts. One’s right to life, liberty,

and property, to free speech, a free press, freedom of

worship and assembly, and other fundamental rights

may not be submitted to vote, they depend on the out-

come of no elections.”” (Emphasis supplied)

The First Amendment prohibits not only prior restraint

or censorship of criticism; it also protects against any

attack which suppresses fair reporting of matters of public

interest. The prohibition against suppression of free

speech is directed to any governmental acts which abridge

speech, ‘‘whether the abridgment is attempted by the exec-

utive, the legislative, or the judicial arm of government.’’

Miller, Principles of Law Limiting Radio Broadcasting,

9 F.R.D. 217, 228, and cases there cited. The safeguards of

11

free speech and a free press apply to whatever means the

attempted abridgment uses, whether court injunction, Near

v. Minnesota,* 283 U.S. 697, or summary contempt pro-

ceedings, Craig v. Harney, 331 U.S. 367, Bridges v. State of

California, 314 U.S. 252; Pennekamp v. State of Florida,

328 U.S. 331.

In short, the First Amendment places any speech or

printed report in the public domain when it touches on

matters of public concern. If a balancing of the various

values of the speech against the competing risks of the

harm from it results in a prudent man’s judgment that the

public interest in untrammelled publication outweighs

occasional private or public injuries which may result, then

the speech should be protected by the First Amendment.

Klaven, Univ. Chicago Conference on the Arts, Publishing

and the Law (1952), pp. 16-17. By analogy with the ‘‘clear

and present danger’’ cases, this public interest is not to

be disregarded unless language is so clearly defamatory,

false and damaging as to present a danger ty segments

of the public which outweighs the importance of the Consti-

tutional protections to the whole body politic.

Was what Pearson said through the facilities of American

Broadcasting Company fair and accurate comment about

an official proceeding?

The comment was at least fair and accurate. Pearson, on

January 30, 1949, reported that the Justice and Treasury

Departments had ordered the prosecution of Dr. Gariepy

‘fin a strange income tax case.’’ The case was strange

because it ‘‘indirectly involved Father Coughlin.’’ It in-

directly involved Father Coughlin because Dr. Gariepy’s

* In the Near case this Court held that the States are precluded

from abridging freedom of the press by the due process clause of

the Fourteenth Amendment. The twofold nature of the jurisdic-

tion of the courts of the District of Columbia is well known to this

Court and should make clear that either the Fifth or the Four-

teenth Amendments due process clauses are applicable to judicial

action in the District of Columbia which abridges freedom of

speech and press.

12

defense in part was that Father Coughlin gave Gariepy

$68,000 as a result of alleged alienation of affection of

Mrs. Gariepy by the radio priest. Despite this defense, the

Justice Department planned to prosecute Gariepy anyway,

apparently not crediting the defense.

Every fact reported was demonstrably accurate. Gar-

iepy’s prosecution had been ordered. A week later on

February 6, 1949, when Pearson returned to the subject,

he repeated that Dr. Gariepy would be brought to trial in

a tax case indirectly involving Father Coughlin and said

when the trial takes place ‘‘we will see who was really tell-

ing the truth.’’

No newspaper or news commentator could have been

more careful in warning his listeners that the defense

claimed by Dr. Gariepy might not be credible. He cautioned

that the Justice Department apparently did not consider

the defense valid and that the trial would disclose who was

telling the truth. As District Judge Morris said:

‘If any intimation or innuendo accompanied the words

which were used by the defendant Pearson, from a

reading of the statement in its entire context, it is that

the defendant Pearson did not believe the statement of

Dr. Gariepy to be credible, and that such was also the

view of the Justice Department.’’ (R. 20A)

These facts establish the broadcasts as fair report and

comment on a matter of public concern upon which no action

lies. See Brewer v. Hearst Pub. Co. (7th Cir., 1950), 185

F. 2d 846; Restatement, Torts; Sec. 606; 53 C.J.S. 210

et seq. ‘‘It is well settled that fair criticism or comment on

matters of public interest is not actionable in the absence

of malice, i.e., bad faith or bad motive.’’ Potts v. Dies

(1942), 77 U.S. App. D. C. 92, 132 F. 2d 734, 735, cert. den.

319 U.S. 762. Though t»ir comment might enable some

journalists and others to esvape liability for even defama-

tory language which offends the taste and moral sense of a

substantial part of the community, this occasional abuse is

part of the price of free speech. 62 Harv. L. Rev. 1207, 1216.

a ——

13

Was the proceeding about which Pearson was reporting

an ‘‘official proceeding?’’

Since this country began, the public has had a vital and

legitimate interest in tax evasion cases. The Whiskey Tax

rebellions of the late 1790’s provide an early example.

Today, after the impact of two World Wars, tax evasion is

a serious crime directly affecting national security.* It is

the public interest in a proceeding which makes the proceed-

ing official and protects reports of it.

The proceeding was official at the stage when Pearson

reported, and hence in the absence of malice his report

was privileged. 53 C.J.S. 201.

Any lawyer familiar with tax work knows that the ad-

ministrative conference he has with Treasury and Justice

Department officials can be as decisive of the rights of his

client as the trial which might become the ultimate end

of administrative procedure. The reality, not the form, of

the ‘‘official proceeding’’ determines whether the public

interest justifies the protection of privilege. The Restate-

ment, Torts, Section 611, comment b, recognizes that the

rule of privilege applicable to reports of judicial and legis-

lative proceedings extends to reports of the executive or

administrative actions of officials of the nation, state or any

municipal corporation and to proceedings and actions of

other organizations which are by law authorized to perform

* That the administration and enforcement of the tax evasion

statutes were at full peak during the period critical in this case is

evident from the following statistics:

: 1947 1948 1949

Tax fraud cases investigated 4125 3806 2962

Cases in which prosecution

recommended 925 988 848

Individuals tried 190 328 356

Convictions or pleas 182 315 346

Additional taxes

and penalities $199,787,798 $228,808,194 $271,831,308

(Tax Fraud Cases, Section of Taxation, American Bar Association

(1951).

14

public duties, such as a medical society or a bar association

charged with authority to license practitioners.

In fact, the privilege attaches even to proceedings which,

although not authorized by law, are nevertheless in their

nature public proceedings because they vitally concern the

public at large. Thus, in Farrell v. New York Evening Post,

3 N.Y.S. 2d 1018, 167 Mise. 412, the New York Court held

that the test of the rule of privilege to report an official

proceeding was not restricted by the fact that the proceed-

ing was not open to the public, so long as the nature of the

proceeding was such as to make it of general interest and

concern to the public. Reports of criminal proceedings are

privileged even though preliminary or ex parte in their

nature. In the District of Columbia it has been held that

a fair report of a meeting of the board of deacons and the

congregation of a church may be privileged. Pinn v. Lawson

(1934), 63 U.S. App. D. C. 370, 72 F. 2d 742, 744.

In this case, we are concerned with fair and impartial

reports of proceedings conducted by officials of the executive

branch of the Federal government. The Bureau of Internal

Revenue (now Internal Revenue Service) and its agents

have the authority to examine books, papers, and records,

to take testimony of individuals, to summon witnesses and

to administer oaths. Internal Revenue Code, Sections 3614,

3615, 3632. It is during these proceedings that a taxpayer

is advised that criminal prosecution is under consideration

by the Bureau of Internal Revenue. The taxpayer then

testifies and sets up his defenses, and the merits of the case

are argued by his counsel. If the Bureau is persuaded

that there was no willfulness or intent to defraud, the

matter is dropped so far as criminal prosecution is con-

cerned. If the Bureau concludes that in its opinion, based

upon the record and argument, there is guilt beyond a rea-

sonable doubt, then the case is transferred to the Depart-

ment of Justice with the recommendation of prosecution.

Tax Fraud Cases, Section of Taxation, American Bar

Association, supra, pp. 13-26. The procedure before the

15

Bureau of Internal Revenue is formal, official and adverse,

concerned with a matter of public interest. It is as much

2 quasi-judicial function of an administrative agency as a

formal hearing before the Interstate Commerce Commission

and other Federal agencies and certainly no one now denies

that reports of such hearings fall within the defense of

privilege. The same can be said of the proceedings in

which Dr. Gariepy participated before the Department of

Justice. If the public interest in being informed of pro-

ceedings before a church board of deacons, or a bar or

medical association, is more vital than a possible incidental

private injury, then the public interest in a proceeding so

important as a tax fraud case must prevail.

Any relaxation of these principles of iibel law which

tends to penalize accurate reporting of an official matter

of public concern collides immediately with the First

Amendment protection of freedom of the press. The penalty

and expense of trial and libel judgments risked by a re-

porter or commentator if the law is to be interpreted as

requiring him, in the words of one observer ‘‘to prove the

truth of all the nasty things the people said about each other

in the proceeding.’’ (John B. Martineau, University of

Chicago Conference on the Arts, Publishing, and the Law,

supra, p. 21) is as effective a suppression of freedom of

press as would be an injunction against publication of any

criticism in the first instance.

We have said that an analogy to the public interest test

may be found in the series of cases dealing with the clear

and present danger test of the permissible limits of freedom

of speech. The multitude of cases philosophizing on the

meaning of the clear and present danger test requires, in

the interest of brevity, the selection of only a few to demon-

strate the point. In Bridges v. California (1941), 314 U.S.

352, the Supreme Court examined the Constitutional as-

pects of contempt of court by publication. The case

involved, among other things, editorial attacks on a judge’s

decision in litigation affecting labor unions. This court,

Se | ce Pio NUE Re eat toe Le Sa ah dite SCOR cee

16

reversing a contempt finding, held that the First Amend-

ment ‘‘must be taken as a command of the broadest scope

that explicit language, read in the context of a liberty-

loving society, will allow.’’ (Emphasis supplied.) The

Court balanced the public interest in freedom of comment

against the severity of the criticism of judicial proceedings

and concluded that the former outweighed the latter.

In Pennekamp v. Florida (1946), 328 U.S. 331, this Court

in reversing a contempt conviction in Florida based on crit-

icism of judicial actions in criminal cases, said that the Con-

stitution imposes upon the United States Supreme Court

the sole authority to determine when words carry a suffi-

cient threat of clear and present danger to our form of

society to justify a contempt conviction. The Court ob-

served:

‘*Free discussion of the problems of society is a

cardinal principle of Americanism—a principle which

all are zealous to preserve ... In the border line

instances where it is difficult to say upon which side the

alleged offense falls, we think the specific freedom of

public comment should weigh heavily against a possible

tendency to influence pending cases. Freedom of dis-

cussion should be given the widest range compatible

with the essential requirement of the fair and orderly

administration of justice.’’ Pp. 346, 347.

In each of the two cited cases as in most of the ‘‘clear

and present danger’’ cases, this Court decided the issue of

whether the public interest in a particular expression of

ideas or criticism outweighs the threat of the speech to an

institution of government. Yet in this libel case the public

interest in tax evasion matters is to be balanced against a

wholly incidental injury, if any, which truthful reporting

of an official proceeding may have caused a third party.

The court below remands for trial on the sole ground that

the ‘‘unusual amount (alleged by Dr. Gariepy to have been

received from Fr. Coughlin for alienation of affection)

might be thought to imply unusual circumstances.’’ (Em-

17

phasis supplied.) On how precarious a base will our Consti-

tutional protection of freedom of speech rest if the necessity

of proving to a jury in a civil case the truth of all the de-

fenses a man makés in a criminal proceeding depends not

on the accuracy of the reporting but on the interpretation

given to simple factual statements by a minority of listeners

with ‘‘an evil eye serving an immoral mind’’? Cannon v.

Bee News Pub. Co. (D.C. Neb. 1933), 8 F. Supp, 154, 155.

There is no more certain method of extinguishing freedom

of the press than to cireumscribe its exercise within imprac-

ticable limitations which force an individual to weigh each

word he uses in the light of its possible effect on the minor-

ity of evil-minded people in a given community. A servile

and sterile press may hurt no one, but neither does it help

the public nor assist in the preservation of our freedoms.

Every curtailment of the right of fair and impartial com-

ment on matters of public interest invades the fundamental

rights guaranteed by the First Amendment.

The ever increasing activity of executive and legislative

agencies in the field of investigation, especially into the

realm of taxation with which the public is so vitally con-

cerned, demonstrates the importance of the questions

raised in this case. The action of the Court of Appeals

represents an abridgment of Constitutional guarantees of

which this Court is the ultimate guardian.

2. The decision of a majority of the lower court im this

case should be reviewed because it is im conflict with the

per curiam decision of the Court of Appeals for the Fourth

Circuit in Phillips v. Union Indemnity Co. (1928), 28 F.

2d 701.

Whether a publication is reasonably capable of bearing

a defamatory meaning is a question of law for the Court

to determine. Caldwell v. Hayden (1914), 42 U.S. App. D.C.

166. If the Court is satisfied that the words as used are

not capable of being so construed by reasonable people, the

action should be dismissed.

18

In reversing the District Court, the United States Court

of Appeals for the District of Columbia Cireuit, conceded

that the words ‘‘alienation of affection’? do not usually

imply unchastity but held that the term as used might be

construed so as to have a defamatory meaning. In its

opinion, the appellate court says:

‘*In the statement ‘. . . Father Coughlin gave him

$68,000 because of alienation of affections of Mrs.

Gariepy ... ,’ the unusual amount might be thought

to imply unusual circumstances.

~ “*. . . Therefore the question for the Court in the

present case was whether appellees’ broadcasts might

reasonably be understood as implying that appellant

was an unchaste wife. In our opinion they clearly

might.’’ (Emphasis supplied) R. 25.

Instead of applying the ‘‘reasonable and usual”? test used

by the trial judge in determining whether the words were

reasonably susceptible of a defamatory meaning, the Court

of Appeals applied the test of whether or not the words

can possibly be construed so as to impute unchastity to the

plaintiff. The emphasis of the opinion of the majority

of the Court is on the word ‘‘might.’’

This construction of the law of libel conflicts with the

principles laid down in the decision of the Fourth Circuit

Court of Appeals in Phillips v. Union Indemnity Co., supra,

and with the common law.

In the Phillips case the Court said that ‘‘the test is not

whether the language can possibly be construed so as to

have a defamatory meaning, but whether it is reasonable

under the circumstances so to interpret it.’’ 28 F. 2d at

703. Plaintiffs were former agents of defendant insur-

ance company. The gist of the alleged libel was that

defendant had sent out notices to policyholders notifying

them that their policies were cancelled for non-payment

of premiums when in fact the agents had forwarded such

premiums to the company. Plaintiffs alleged by way of

19

innuendo that by such notices and cancellation of policies

defendant intended to convey that plaintiffs had not re-

mitted the premiums and were dishone..t in their business

dealings and unworthy of public confidence. The Court of

Appeals ruled that the publication, taken in connection with

all the facts and circumstances, was not reasonably suscep-

tible of a libelous meaning and hence not actionable. With

respect to the innuendo, the Court stated that it ‘‘cannot

be used to give a forced and unnatural construction and

application of the words, but only a reasonable and natural

construction and application.’’ The Court said:

‘‘Furthermore, since the injurious character of the

publication and the harm done to the plaintiff depends

upon the manner in which the writing is understood

by those to whom it is uttered, it must be read and con-

strued in the sense in which the reader would ordinarily

understand it; and if, when thus considered, it cannot

reasonably be interpreted as defamatory, it will not

serve as a basis fpr the action.’’ 28 F. 2d at 703.

In finding that the inference that defendant intended to

charge plaintiffs with dishonesty, as alleged by the innu-

endo, was not reasonable under the circumstances, the

Court concluded:

“It was of course not impossible for some policy-

holder, turning over in his mind all the contingencies,

to suppose that the agents had improperly retained the

premiums, but the test is not whether the language can

possibly be construed so as to have a defamatory mean-

ing, but whether it is reasonable under the circuwm-

stances so to interpret it.’’ (Emphasis supplied) 28

F. 2d at 703.

In accord with the principles of the Phillips case is the

Ninth Cireuit Court of Appeals, Lorentz v. R.K.O. Radio

Pictures (1946), 155 F. 2d 84, 87, in which the court refers

to and relies on the Phillips case, and the Seventh Circuit

Court of Appeals, Brewer v. Hearst Pub. Co. (1950), 185

F’. 2d 846, 850.

20

The case of Cannon v. Bee News Pub. Co. (D.C. Neb.

1933), 8 F. Supp. 154, is very much in point here. Bishop

James Cannon, Jr., alleged that a newspaper article, by

innuendo, charged him with committing adultery with a

Mrs. McCallum. The defendant demurred and the court

sustained the demurrer and dismissed the complaint. The

court summarized its position in a holdin, that is equally

applicable to the case before this Court when ii said: (8 F.

Supp. at 157)

“‘Reading the whole article over, and giving the

words their plain ordinary meaning, no slanderous or

libelous statements will be found therein. Now it is

possible that to an evil eye serving an immoral mind,

one of such might draw deductions therefrom which

are not justified by the statements. Still, it is to be

rejoiced that the minds of the great mass of humans

throughout the world are clean and wholesome and are

not prone to attribute evil where none appears or none

exists.’? (Emphasis supplied.)

The rule of law that ‘‘words will not be construed to

impute unchastity, if in their milder sense they may have

another harmless meaning’’ (Cannon v. Bee News Pub. Co.,

supra) is necessary and desirable. Otherwise, a news

reporter would act in great peril because in a great variety

of factual situations, it is possible for ‘‘an evil eye serving

an immoral] mind”’ to find an evil meaning.

The Phillips decision follows the common law and English

authorities. Gatley, in his recently published book, Libel

and Slander, 4th Edition, 1953, at page 126 says: (footnotes

omitted)

‘In determining whether the words are capable of

a defamatory meaning the judge will construe the

words according to the fair and natural meaning which

would be given them by reasonable persons of ordinary

intelligence, and will not consider what persons setting

themselves to work to deduce some unusual meaning

might sueceed in extracting from them. That clearly

is not the test. ‘The test according to the authorities’

21

said Lord Selbourne, ‘is whether, under the circum-

stances in which the writing was published, reasonable

men to whom the publication was made would be likely

to understand it in a libelous sense.’ ‘The law is

perfectly well settled. Before a question of slander or

libel is submitted to a jury, the Court must be satisfied

that the words complained of are capable of the defama-

tory meaning ascribed to them. That is a matter of law

for the court. ...‘The proposition has been established

now upon authority which is difficult to question .. .

that it is not enough to say that by some person or

another the words might be understood in a defamatory

sense.” ‘It is unreasonable that where there are a

number of good interpretations, the only bad one should

be seized upon to give a defamatory sense to the docu-

ment.’’’ (Emphasis supplied)

In determining whether words are capable of a defaraa-

tory meaning is the test whether it is reasonable under the

circumstances to construe the language so as to have a

defamatory meaning, which was the standard applied by

the Fourth Circuit Court of Appeals in the Phillips case;

or is the test whether the language might possibly be con-

strued so as to have a defamatory meaning, which was the

standard applied by the Court of Appeals for the District

of Columbia in the present case? Since the issue in both

cases was whether an alleged libelous publication would

support an innuendo which would make the words defama-

tory and since the decisions are in conflict on the proper test

to be used in determining the issue, it is submitted that

which is the proper test to be applied is an important ques-

tion of law which should be resolved by this Court.

While ‘‘canons of construction’’ stated in the abstract

might be deemed to represent a ‘‘local question”’ of insuffi-

cient importance to warrant the attention of this Court,

when the principle enunciated by the Court of Appeals is

viewed in the light of the circumstances here presented, the

question takes on a broader meaning. The American public

has but one method of being informed of the activities of

its Government and that is through the media of commercial

22

news enterprises. News writers and reporters must look

to the decisions of the courts for guidance in determining

what can and cannot be published in fulfilling their function,

indeed, their duty, in keeping the public informed. The

conflicting doctrines created by the action of the appellate

court in the instant case throws a cloud of confusion upon

the proper means of interpreting words, and newsmen as

well as lower courts the country over are at a loss as to

this important point in the law of defamation. The Court

should accept this case for review in order to clarify the

confusion now existing.

3. The principle that because of the reference to the

amount of money allegedly paid to Dr. Gariepy the term

‘‘alienation of affection’’ might be found by a jury to im-

pute unchastity to the respondent when those words in their

usual and legal meaning simply connote a change in mental

attitude of one spouse toward the other caused by a third

party, so far departs from judicial precedent and the

usual and accepted principles applied in determining the

defamatory character of words as to call for an exercise

of this Court’s power of supervision.

The Court of Appeals agreed with the district court that

the words ‘‘alienation of affection’’ do not usually imply

unchastity. Cases are legend supporting the principle that

those words, both in the usual sense and in a legal sense,

mean nothing more than a change in mental attitude

between spouses caused by a third party. However, the

appellate court held that because of the reference to the

amount of money allegedly paid to Dr. Gariepy, the term

might take on an entirely different meaning from that

generally and commonly understood. Such a ruling is with-

out judicial precedent or logical support.

That the amount of money involved in an alienation of

affection proceeding cannot inject an imputation of un-

chastity is made clear by concrete example. In Woodhouse

v. Woodhouse (1925), 99 Vt. 91, 130 Atl. 758, the wife sued

23

her husband’s parents for alienation of his affections and

the jury awarded her $465,000 which was reduced by the

court to $125,000. And in Mohn v. Tingley (1923), 191 Cal.

470, 217 Pac. 733, the wife sued another woman, not a

relative, for alienation of her husband’s affections. The

defendant was an official and leader of a society of which

both the plaintiff and her husband were members. Evidence

was introduced to show that the defendant dominated the

plaintiff’s husband and that he accepted her judgment and

heeded her advice in preference to his wife’s. There was

not the slighest intimation of debauchery in the relationship

between the plaintiff’s husband and the defendant. The

jury awarded plaintiff damages of $100,000 which was

affirmed on appeal. The district court in the present case

considered the proposition at hand and summarily dis-

missed it, stating:

“Certainly the amount of money referred to could not

give the words used a meaning different from the

natural meaning of such words, nor distort them into

support for the innuendo asserted.’”? 104 F. Supp.

at 684.

The Court of Appeals cited only two decided cases in

support of its holding: Peck v. Tribume Co. (1909), 214 U.S.

185, and Myerson v. Hurlburt (1938) 68 U.S. App. D.C. 360,

98 F’. 2d 232. Neither of those cases involved an ‘‘ unusual

amount of money’’ and the publications involved in both

were clearly defamatory. Obviously those cases cannot

control in this case and they are no support for the proposi-

tion that when an ‘‘unusual amount’’ of money is involved,

words not otherwise defamatory might become defamatory.

The mere restatement of the Court of Appeals’ proposi-

tion that the amount of money involved might give words

a different meaning reveals the proposition’s fallacy. If

$68,000 might suggest a meaning to words different from

their ordinary understanding, would $50,000, or $25,000,

or $5,000? How could this rule possibly be administered

24

by a court with any degree of accuracy or reasonableness?

Or how could this determination or dividing line between

what might be a usual amount of money and an unusual

amount be left to a jury?

There will always be a few members of the public who

will interpret words in the most evil sense possible. Idle

tongues rejoice at the opportunity of imputing unfaithful-

ness to a husband or wife where there might not be an iota

of foundation for such imputation. Likewise, there are

always a few who will take advantage of every opportunity

to interpret words or actions of a clergyman in an evil

sense. But the Court of Appeals has magnified the impor-

tance and size of this relatively minute group and the legal

effect of the court’s decision is to foster distortion of words.

It has sanctioned an evil interpretation of words where

no basis for such an interpretation exists by a ruling based

upon an entirely novel principle of law not supported by

legal authority or logic, and in doing so has so far departed

from sound authority as to warrant the exercise of this

Court’s power of supervision in this matter of general

importance.

4. Where a complaint fails to allege libel per se or to pre-

sent a showing of special damages, procedural due process

assured by the Fifth and Fourteenth Amendments inher-

ently require judicial determination that the complaint does

not state a cause of action and should be dismissed.

The legal effect of the holding of the court below is that

the language alleged in the complaint is not libelous per se.

The court said of the possible implication of unchastity from

the words ‘‘alienation of affection’? and the amount of

money mentioned, $68,000, that ‘‘in our opinion they clearly

might’’ imply unchastity and therefore ‘‘. . . a jury should

be permitted to decide whether they actually were so under-

stood.’’ (Emphasis supplied) (R. 25) This is the same as

ruling that there was no libel per se since the words used

required innuendo to be defamatory.

25

In the District of Columbia and traditionally at common

law it has long been held that where a court cannot hold

that a publication is on its face libelous per se, any com-

plaint for libel based thereon should be dismissed, or sum-

mary judgment granted, in the absence of sufficient allega-

tions of special damages. Thackrey v. Patterson (1946), 81

U.S. App. D.C. 292, 157 F. 2d 614; Sullivan v. Meyer (1937),

67 U.S. App. D.C. 228, 91 F. 2d 301; Holtz v. National Fur-

niture Co. (1932), 61 U.S. App. D.C. 80, 57 F. 2d 446.

In this complaint the showing of special damages was

demonstrably insufficient as pointed out in the petition for

rehearing although this point was not even commented upon

by the appellate court in its opinion. (R. 28) To force a

man to trial before a jury on the basis of a legally insuffi-

cient complaint violates the entire concept of procedural

due process as guaranteed by both the Fifth and Fourteenth

Amendments. Pennoyer v. Neff (1878), 95 U.S. 714.

CONCLUSION

For the reasons stated, this petition for a writ of certio-

rari to the Court of Appeals for the District of Columbia

should be granted. —

Respectfully submitted,

Wuutunm A. Roserts

Warren Woops

Washington, D. C.

Attorneys for Petitioners

Of Counsel:

Trene Kennepy

Epwarp G. VinLaton

Roserts & McInnis

DeSales Building

Washington 6, D. C.

Joun Donovan, Esquire

920 Southern Building

Washington, D. C.