*1 v. CONSUMERS UNION OF BOSE CORP. STATES, UNITED INC. Argued April 30,
No. 82-1246. November 1983 Decided *2 Stevens, Brennan, J., Court, opinion delivered which Burger, Marshall, Blackmun, Powell, JJ., joined. J., C. con- White, J., dissenting opinion, post, judgment. in the filed a curred O’Connor, Rehnquist, p. J., dissenting opinion, J., 515. filed a in which joined, post, p. 515. *3 argued petitioner.
Charles Hieken the cause for himWith Perry. on L. the briefs was Blair argued respondent. N. Michael Pollet the cause for With Schrager* him on the brief were Marshall Beil and Carol A. opinion delivered Court. Justice Stevens metaphor An unusual in a critical review of an unusual loudspeaker system gave product disparagement rise to liti- gation presents procedural question us with a first im- 52(a) pression: Does Rule of the Federal Rules of Civil Proce- prescribe applied by dure the standard to be Court Appeals in its review of a Court’s District determination that a false statement was made with the kind of “actual malice” in New Sullivan, described York Times Co. v. 376 U. S. (1964)? 279-280 May magazine, Reports,
In the 1970issue of its Consumer respondent published seven-page evaluating article quality medium-priced loudspeakers. of numerous brands of respond- occupying pages, In a boxed-off section most of two loudspeakers special ent interest,” commented on “some *Briefs of amici curiae urging filed for American affirmance were Sims, McHugh, F. Civil James Charles S. Liberties Union et al. and Reinstein; Abrams, by Floyd John and for New York Times Co. et al. Ringel, Chatillon, Sack, Lucan, Cory- Dean Devereux Robert Alice Neff Dunham, Fuller, Jr., B. Maguire, don David M. Terry Otis W. Richard Schmidt, Jr., Rich, R. Bruce and Peter C. Gould. “unique admittedly and 901—an Bose was the one which recently placed system that had been unconventional” system describing by petitioner.1 and After market noting a listener “could after virtues, some its pinpoint much more of various instruments the location system,” easily speaker the Bose than with a standard with following respondent’s statements: made the article through instruments heard the Bose “Worse, individual gigantic grow proportions system seemed to instance, a vio- the room. For about tended wander piano appeared stretched to be 10 feet wide and lin music, such effects With orchestral from wall to wall. they might inconsequential. But think be- we seemed listening annoying to soloists.” Plaintiff’s come when p.2, Exhibit 274. opinions concerning quality, stating the overall sound
After system un- article concluded: “We think the Bose so prospective buyer judge usual that a must listen to it and suggest delaying big for himself. would an invest- We so *4 you system you please ment until were sure the would after novelty Id., value had worn off.” at 275. exception Petitioner took to numerous made statements respondent publish in the article, and when a re- refused to petitioner product disparagement traction, commenced this in action the United States District Court for the District pretrial protracted period of Massachusetts.2 After a 1 introducing In loudspeaker petitioner system marketplace, to the emphasized the system actively unconventional nature of the and solicited reviews in publications thereby numerous inviting critical evaluation and comment unique qualities system. on the Supp. of the 508 F. 1273 (Mass. 1981). 2 jurisdiction product Federal over the disparagement was based claim diversity 1332(a)(1). on citizenship, § 28 U. S. C. of New York law Massachusetts, and by parties area, gov viewed inas accord in this product erned the disparagement Supp., claim. F. n. 17. at The District Court held that applicable law, plaintiff under the had state
discovery, the District Court denied respondent’s motion for summary 84 F. R. D. 682 judgment, (1980), and a conducted on the 19-day bench trial issue of In liability. its lengthy, detailed on the opinion case, merits 508 F. Supp. (1981), the District Court ruled respondent’s favor most issues.3 Most the District Court ruled significantly, that the is a as that term is petitioner “public figure” defined in Gertz by evidence, proving, preponderance the burden a that the state- disparaging, ments in issue were false and and also had the burden of Id., establishing damages actual in order to recover. at 1259-1260. claim, product disparagement petitioner alleged addition to the claims for Act, competition unfair § and a violation of the Lanham C. U. S. 1121. proved. The District Court held that neither of those claims had been Supp., F. at 1277. 3Petitioner’s attack on the article included contentions that it was “panel” misleading referring persons as in creating two a impression loudspeaker quality objective that evaluations of are rathеr subjective judgments. peti than agreed While the District Court with points, petitioner tioner on these it ruled that did not entitle to relief. Id., argued quality 1260-1262. Petitioner also overall sound higher by the Bose 901 should have been rated the reviewers. The Dis rejected claim, observing testimony, trict Court that all of the includ Bose, ing speaker’s Dr. revealed that the evaluation of a “sound analy quality” “accuracy” “subjective matter,” is a and hence in the final “nothing opinion and, such, proved sis is more than an as it cannot be to be Id., petitioner true or false.” at 1262. The court also found that had prove recommending amplifier failed to false a statement of an of 50 use per “deepest” response speak watts channel to achieve the with the bass ers, observing requirements parties power that the had conceded that the Id., speakers readily objectively at 1263- were ascertainable. per petitioner prove 1264. The court also found that had failed to primarily responsible his finan son for the article was biased reason of eventually marketing speaker cial interest on which he had obtained hand, respondent’s argu patent. rejected other On the the District Court *5 respondent had no mo ment that there could be no malice actual because facts; possible reasons tive to the the two distort District Court identified first, a disparagement, proof” respondent that had “built for the the “scant second, suggestion in the against “higher priced products” in a bias” Id., testimony respondent circulation. that resorted to “sarcasm” to boost possi not, however, rely upon these at The District did 1275-1276. Court id., 1276-1277. proof ble malice. See at motivations as affirmative of actual 328, 345, 351-352 Welch, Inc., 418 U. S. Robert case and therefore the First for this (1974), purposes Times v. Sulli- in New York Co. as Amendment, interpreted 279-280, recovery precludes prod- van, S., at the petitioner proved by unless action uct disparagement a false evidence made convincing that'respondent clear and “actual malice.” with statement disparaging however, the District Court points, three critical On one First, it found that sentence petitioner. with agreed statement of “fact” concerning contained a “false” the article to Based the instruments wander.4 primar- the tendency the article, the author of the District testimony by on ily heard the through speakers instruments Court found the rather than the wall,” “about “along tended to wander Second, it found that by respondent.6 room” as reported respondent’s summary judgment, for ruling In its motion the District respondent’s panelists question “actually the whether had held that Court grow gigantic proportions or wander room heard instruments about the fact, opinion .” question not . . . 84 F. R. D. is summary judgment, respondent for support of the motion had submitted by Seligson, stating panelists, one of the Arnold article an affidavit accuratеly in the and “I I reported what was heard tests know what Bose, by heard,” petitioner had submitted an affidavit Dr. who de while 901, stating signed phenomenon the Bose substance that “the widened wandering instruments Ibid. impossibility.” ... a scientific 6Although point the suggest at one District Court seemed to e., sound, instruments, all, relying i. did not at on a wander publication stating prescribed in another that “each instrument has its there,” space stays it Supp., (emphasis supplied 508 F. at 1268 —and Court) (citation omitted), District previously District Court had stated degree loudspeakers that some of “movement” sound is com between systems liability respondent mon to all and its discussion indicates truthfixlly reported “along could have that the sound tended to wander wall,” along entirely or at least “seemed” to wander It is the wall. not finding regarding clear that the District Court made where of fact as such Indeed, the sound tended to wander. entirely is not clear that he found Rather, as a that the sound did not wander about the room. as dis fact extensively infra, 493-497, more finding cussed seemed to be that “panel” conducting the subjectively perceive test did not sound
491
the
Third,
the statement was
concluded “on
disparaging.
which it considers
and
basis
clear
that
proof
convincing,
the
has sustained its burden of
that
the
plaintiff
proving
a
defendant
false statement
material
fact with
published
the
that it was false or with reckless
knowledge
disregard
F.
at
falsity.”
its truth or
1277.6
was
Supp.,
Judgment
for
on the
petitioner
product disparagemеnt
entered
claim.7
for the
Appeals
The United States Court
First Circuit
(1982).
reversed.
8 Judge specially emphasize concurred the fact Appeals passed Court of had not on the merits of the District Court’s hold ing petitioner public figure. We, pass was a course, not also do question. respondent’s We observe that publication Reports plainly of Consumer qualify it would as a “media” any defendant in this under action conceivable
49B granted to consider certiorari whether the Court of We apply clearly-erroneous Appeals erred it refused to when 52(a) “finding” Rule to the District Court’s standard of actual malice. U. S. 904
(I— necessary place focus, To the issue m it is tо state m some- *8 (a) greater what detail the evidence on the “actual malice” (b) issue; and the basis for the District Court’s determination. Actual Evidence Malice. petitioner prove key
At endeavored to that trial the sen- tence embodied three distinct falsehoods about instruments (1) system: through heard the Bose that their size seemed (2) (3) grossly enlarged; move; that seemed to their movement was “about the room.”
Although great deal of the evidence the concerned first points, two the District Court found that neither was false. average It concluded that the would reader understand that enlarged reference the to instruments was intended to de- scribe the size of the area from which the sound seemed to any perception emanate rather than to the size about actual being played, rejecting of the musical instruments as “ab- interpret figurative surd” the notion that readers would the language literally. Supp., referring 508 F. at 1266.9 After testimony explaining degree to that “a certain of movement Hence, definition of that term. question presented the answer to Bradstreet, Builders, Inc., Dun & Inc. Greenmoss granted, cert. (1983), naturally express S. 959 could not affect no this case and we question. view at this time on that 9“Therefore, plaintiff present any did not to contradict evidence listening defendant’s evidence which tended to show that when to the Bose 901 a listener perceive apparent could does source is sound Thus, very large. plaintiff the court sustained concludes that the has not proof by preponderance its burden of of the evidence that the defendant’s grow gigantic proportions’— statement —‘instruments . . . seemed to Supp., was false.” 508 F. at 1267. expected apparent source is to be sound of the
of the location systems,” loudspeaker the District Court with all stereo insofar as it recognized was accurate statement . . . .” reported . . . tended to wander “instruments apparent reference to the Thus, neither Id., at 1267. reference to the fact that instruments, nor the size of the appeared move, was false.10 instruments tended to wander “about that instruments The statement found false because what listeners room” was apparent perceived actually was an movement back the test along in front of them and between the two forth the wall and speakers. apparent movement
Because an “about different forth—would be so than back and room”—rather average expect, the listener has learned to what the from “the of the movement concluded that location District Court just apparent source is as critical to a reader as sound Ibid. the fact that movement occurred.” respondent’s concerning knowledge of The evidence *9 falsity Seligson, engineer employed by focused on Arnold an Seligson supervised respondent. the test of the Bose 901 prepared report upon published the written which the report article was based. His initial in-house contained this only placed sentence: ‘“Instruments not could not be with precision appeared giganticism but to suffer from and tend- ency to wander around the violin room; seemed about 10ft. ” piano wide, a Id., stretched from wall to at wall, etc.’ n. 28. Since the editorial revision from “around the room” change meaning the “about room” did not of the false statement, and since there was no evidence that the editors inaccuracy original report, were aware of the in the entirely actual-malice determination rests on an evaluation Seligson’s report, state of mind when he wrote his initial against report. or when he checked the article that 10 Thus,respondent prevailed on both of the issues of fact that had been identified summary judgment stage at the proceedings. n. See supra.
Seligson deposed trial was before and testified for almost days point trial itself. At one six at the his direct ex- responded length testimony by amination, he to technical explanation explaining appar- Bose, Dr. scientific for the of the source of sound back ent movement and forth across a judge App. questioned Selig- The 117-122. trial then wall. questioning son, and that revealed that the movement which during Seligson had heard the tests was confined to the During request cross-examination, wall.11 his at counsel’s he rough drew a sketch the movement of the sound source he intended to describe with the words “tended to wan- room”; der that sketch revealed a back about and forth along speakers. movement wall between the He was then asked: Seligson, why you Mr. did use the words
“Q. ‘tended you to wander about the room’ to describe what have drawn on the board? pick par- IWell,
“A. don’t me know what made you ticular choice of words. Would have been more sat- following questions were asked and answered: “[Q.] explain, your opinion, Does that the lateral movemént of the instrument?
“[A.] Yes. “[Q.] your I think in the says they statement article which moved into room, just forward, if as came as well— example given “[A.] The for the only movement into room refers to a piano widened violin and a imply only widened meant was widening and movement was speakers. across the rear from the wall two *10 “[Q.] ‘It tended to wander say about the room.’ It from didn’t side to against alone, or side the walls says— but it I says, “[A.] believe the next sentence explain is meant to It then that. instance,’ example ‘For as an of the effect. ... “[Q.] The word around, ‘about’ means doesn’t it? was, your Honor, It wall, “[A.] it was meant to mean about the rear speakers. between the
“CQ-3 says, That isn’t what it though. I App.
“[A.] understand.” 122-124. of before. think not —instead if isfied we said ‘across/ —I in either have you objected I would feeling have the it on as I just ‘about’ meant drew event. word The Id., in deposition.” I so Now, my testified the board. at 169.12 Determination. Aсtual-Malice District Court’s
The in the falsity for de- finding reasons The District Court’s of the wandering movement of the location scription for its on actual background ruling provided instruments “no reasonable reader” concluded that malice. court as lateral move- describing the sentence would understand reader” would “average the wall. Because the ment along according ordinary “about” to its “plain the word interpret meaning,” unequivocally rejected Selig- the District Court son’s the sen- testimony respondent’s argument —and —that refer tence, context, when read could be understood to to lateral movement.13 questions These additional were then asked and answered:
“Q. say your judgment it have more Would been accurate speakers? instruments tended to move back and forth between the two No, so, way I think “A. don’t taken context of the it's described. Re- member, carefully the effect is described in a few sentences later. It’s hard to mistake.
“Q. anything you Is there in the conveys article which think to the stayed reader the idea that the instruments at one end of the room down about, you about, and didn’t come out and wander like wandered where you orange have drawn the line? “A. Yes.
“Q. What is that? “A. I think get reading would that the reader would that from that a appeared piano violin ten feet wide and a stretched from wall to wall. Id., depth This is whatever, entering no hint of into room.” 169-170. 13The District Court buttressed this by pointing peti conclusiоn out that tioner no complaints had received purchasers any wandering from about instruments, and no other reviews of the Bose had referred to wandering contrary, instruments. On the quoted District *11 reasoning Seligson’s
On Court similar District found above-quoted explanation meaning of the intended of the sen- tence incredible. The District Court reasoned: according Seligson, in the
“Thus, words used something Article—‘About the room’—mean different to general. populace Seligson him to the If than do publication the time of is to be of the Article believed, interprets today, interpreted, he still he the words ‘along the ‘about the room’ to mean wall.’ After care- Seligson’s testimony ful consideration of his de- testimony Seligson’s trial, Court meanor at finds Seligson point intelligent on this is not credible. is an knowledge English person language whose cannot impossible questioned. simply It is for the Court to interprets commonplace believe that he word such as anything ordinary plain ‘about’ to other than mean its meaning. finding Seligson’stestimony
“Based on the above contrary to the is not finds credible, Court further publication Seligson that at the time the Article’s . knew that the words ‘individualinstruments . . tended accurately to wander the room’ about did not describe during the effects that he and heard Lefkow had ‘special listening Consequently, test.’ con- the Court proof cludes, on the basis of which it considers clear and convincing, plaintiff its burden of has sustained proving published defendant false statement knowledge material fact with the or with that it was false disregard falsity.” Supp., reckless F. its truth or at 1276-1277. prescribed Court space commented that “each instrument has its —and
stays supra. evidence, however, proba- there.” n. See This was more falsity ascribing any tive of than of movement at all to the sound source falsity describing pointed the location of the As we have movement. out, the District as it Court found that the article was truthful insofar apparent stated that movement occurred.
498
Notably, determination of the District Court’s ultimate in a stated was framed as conclusion was malice actual though disjunctive. found it Even the District Court the Seligson impossible the time of trial —was to believe —at maintaining truthfully that the words “about room” could fairly in to describe lateral movement read, context, throughout irregular room, movement than rather identify any independent not evidence did District Court inaccuracy Seligson of the or enter- statement, realized truthfulness, at the time of doubts about its serious tained publication.14
II respected in two well-settled and rules This a case which opposite point in directions. of law 52(a) correctly provides: us that Rule
Petitioner reminds clearly “Findings of fact shall not be set aside unless given opportu- regard to the erroneous, and due shall be credibility nity judge of the of the trial court to witnesses.” says. repeatedly
We have held that Rule means what Laboratories, Laboratoriеs, 456 Inc., Inwood Inc. v. Ives (1982); Swint, 456 844, U. S. 855-856 Pullman-Standard v. (1982); Gypsum 273, S. United States v. United States surely Co., 333 U. S. 394-396 It not does language inquiry stretch the an Rule to characterize person given point question into in what a knew at a time as judge expressly case, “fact.”15 since the trial com Seligson’s credibility, petitioner argues mented on rejected expressly petitioner’s attempt The District Court exhaustive prove Seligson continuing marketing own had interest his speaker Supp., deliberately therefore F. distorted review. at 1275. 15Indeed, Lando, in Herbert (1979), referred S. we passing to actual malice as “ultimate fact.” Appeals plainly uphold
Court of erred when it refused to “finding” clearly- District Court’s actual-malice under the 52(a). erroneous standard Rule respondent correctly hand, the other On reminds us that raising repeatedly cases First Amendment issues we have *13 appellate obligation held has that an court an to “make an independent examination the whole record” in order to judgment “the make sure that does not constitute a forbidden expression.” intrusion on field of free New York Times Sullivan, S., Co. v. at 284-286. See also v. NAACP (1982); Co., Claiborne Hardware 886, U. S. 933-934 Cooperative Publishing Bresler, Greenbelt Assn. v. (1970); Thompson, Amant 727, S. St. v. 390 U. S. (1968). Although 732-733 such statements have made been 52(a) frequently apply most cases to which Rule does not argues respondent because arose in courts, state principle equally applicable the constitutional is to federal liti- gatiоn. quite agree; surely pervert concept We would lay power of federalism to for this Court claim to a broader judgments of review over state-court it exercises in than reviewing judgments of intermediate federal courts. 52(a)
Our standard of review must be faithful to both Rule independent applied and the rule of in New York review Times Co. v. Sullivan. The rules conflict between the two respects apparent is in some New more than The York real. emphasizes appellate Times rule for to the need an court independent make an record; Rule examination of the entire 52(a) never examination, forbids such an and indeed our sem- expressly contemplated inal decision on the Rule a review of ‘clearly stating “finding record, the entire that a is erroneous’ although reviewing support when there is it, evidence to court on the entire firm evidence is left with the definite conviction that a mistake has been committed.” United Gypsum supra, (empha- Co., States United States at 395 52(a) supplied). sis Rule Moreover, commands that “due regard” given judge’s opportunity shall be to the trial to constitutionally witnesses; demeanor observe permits independent opportunity rule of based previously given Indeed, as we observed, due. its expressly Appeals case declined to second- in this Court of Judge credibility guess on the of the witnesses. the District given special requirement deference be to trial recognition credibility judge’s is itself determinations presumption proposition correctness broader findings stronger in some cases than to factual attaches “clearly applies erroneous” standard The same others. documentary findings evidence as to those based en- based testimony, Gypsum tirely Co., States see United on oral presumption supra, has lesser force in the but the Similarly, in the latter. the standard situation than former longer change the trial becomes and more com- not as does plex, *14 appellate rely on likelihood that the court will but the judges presumption increase when trial have the tends to controversy or the for weeks months instead of lived with just might therefore a few hours.16 One assume duty appellate in cases which the courts have a to exercise ‘finding depends conclusiveness of a fact’ the of the “The of nature finding finding on which the is The a materials based. even of so-called ‘subsidiary may process according fact’ be more or varying a less difficult to simplicity subtlety type controversy. the Finding or of the of ‘fact’ so- clearly called implies application ultimate ‘facts’ more of standards of ‘finding may beyond of by go law. And so fact’ even if made two courts Though determination that should not set be aside here. labeled ‘find ing fact,’ may of very judgment involve the basis on which of fallible Thus, may evidence is to be made. appropriately the cоnclusion that always drawn from the whole mass of evidence is not the ascertainment g., e. precludes the kind ‘fact’ that by See, consideration this Court. LeFevre, Beyer v. Particularly 186 U. 114. S. is this so where a decision escape broadly here for review cannot judgments judgments lying social — opinion to regarding close the whole nature of our Government and States, citizenship.” Baumgartner v. United duties and immunities of Swint, 665, 670-671 (1944). S. Pullman-Standard v. generally See 273, 286-287, 456 U. S. n. 16 review those in independent merely are which the presump- ruling tion trial court’s is correct is particularly weak. difference between the two rules, however, is much more than a mere matter of degree. For the rule of to independent assigns judges constitutional respon- sibility fact, cannot be to the trier of delegated whether factfinding function be case performed particular a trial by jury judge. 52(a)
Rule findings fact, applies including those de- may scribed as “ultimate facts” because determine the Swint, See Pullman-Standard outcome of v. litigation. 52(a) S.,U. at 287. But Rule does not inhibit an appellate to correct errors power law, court’s those that including infect a so-called mixed finding fact, law and or a find- of fact that on a ing predicated misunderstanding ibid.; Laboratories, Inwood Inc. rule law. See governing Laboratories, v. Ives Inc., S., at n. 15. Nor does 52(a) Rule “furnish with particular guidance respect distin- Swint, law from fact.” Pullman Standard guishing S.,U. at 288. What we have “the vexing characterized as ibid., of that distinction, nature” does diminish not, however, its or the importance, importance that re- principles the distinction to quire be drawn certain cases.17 In a consideration of the of the distinc- possible application tion malice,” to the issue of “actual characteris- least three *15 New York Times tics of the rule enunciated in case are the finding 17 A inseparable principles of fact in some cases is from the through reasoning it a point, by which was deduced. some which At the ordinary princi fact is “found” crosses the application line between of those ples logic experience of ordinarily and common are to the which entrusted reviewing finder of fact the legal upon into realm of court a rule which the judgment. must exercise its own independent the line is drawn Where according Regarding varies to the nature of the substantive law at issue. largely law, questions certain factual in the stakes —in some areas of the impact great terms of on too to future cases and future conduct —are finally judgment entrust them to the of the trier of fact. common-law the rule itself heritage the First,
relevant. role the in judge to to applying broad especially an assigns Second, the content of the rule is situations. factual specific text, literal but rather by given its is simply not revealed evolutionary process common-law ad- through meaning the source of rule is found in the Con- judication; though judge-made a rule of law. largely it is nevertheless stitution, by values rule make protected the constitutional Finally, in some cases of this judges judges it imperative —and A correctly that it is few words applied. sure Court —make rule are aspects appropriate. each of these about official from recov- prohibits public rule that federal for a falsehood unless he defamatory proves ering damages was made with ‘actual that the false “statement malice’—that it was false or with disre- is, with reckless knowledge Times, New York false or not,” of whether it was gard its in S., 279-280, counterpart 376 U. has rules previously re- extensively a number state courts and adopted by for viewed scholars The earlier defamation generations.18 turn, in cases, have cases kinship English considering kind of motivation that must be a common- proved support law action for deceit.19 It has been long recognized formulation a rule of this kind the maxi- judge “allows mum of case.”20 power passing judgment the particular
18 representative A list such cases and comments is found in footnote Times, in New York opinion S., of the Court’s at 280. formula, Under what has fraud been characterized as the “honest liar” proved be could “when it is has been representation shewn that a false (1) (2) (3) knowingly, recklessly, truth, made or without belief in its or Deny Peek, careless whether it App. be true false.” Cas. 20“Probably the are formula less than limitations definite it seеms. Its perhaps formulas, largely language English a matter of As do most color. judge it allows power judgment par in the passing maximum It jury neatly ticular case. restricts the the function as as can be done to evaluating judgment evidence. But under formula can Green, Judge way turned equal facility any either with L. close case.” *16 (1930) Jury Green, (Chapter cited 10 of this work Professor herein, (1930)). published is also in 16 Va. L. Rev. power process through
Moreover, the of this exercise is the integrity which the rule itself evolves and its is maintained.21 explained, meaning concepts As we have of some cannot expressed simple adequately be in a statement: proving fall “These considerations short of St. Amant’s disregard accuracy for the reckless his statements Thompson. disregard,’ true, ‘Reckless it can- about is fully encompassed be in one infallible definition. not Inevitably through its outer limits will marked out case-by-case adjudication, legal many as is true with so judging cases, for concrete whether standards the stand- provided by Constitution, statutes, ard is or case meaningful however, cases, law. Our have furnished guidance publica- for further definition of a reckless Thompson, tion.” Amant v. S., St. at 730-731. governing particular When the standard the decision provided by Constitution, case is role in Court’s marking process through out the of the limits standard case-by-case adjudication special importance. is of This process vitally important involving has been in cases restric- speech protected by tions the freedom of the First Amend- particularly in ment, those cases in which is contended the communication in issue is within one of the few classes of “unprotected” speech. presupposes
The First Amendment that the freedom speak only aspect liberty— one’s mind is not an of individual essential, good and thus a unto to the itself—but also quest vitality society common for truth and the as a kept “And it must be judge mind that func has another distinct dealing elements, tion in though frequently with these which into not called play, importance. is of the utmost It of the involves determination scope general formula, or some It comes into one its elements. marginal play in the requires judge say cases. It of con what sort duct can employed be considered as condemned under the rules which are It through such eases. is the function rules which the formulas and evolved, through integrity themselves were which their is maintained availability supra, Green, their determined.” at 304. *17 504 no “there is such as thing Under our Constitution
whole. seem, we may an opinion pernicious idea. However false of on the conscience and judges not its correction for depend v. Rob- of other ideas.” Gertz competition but on the juries (footnote omitted). Welch, Inc., at 339-340 ert S., 418 U. of communication categories are Nevertheless, there majestic protection to which the utterances certain special not extend because Amendment does First ideas, and are of exposition part any “are no essential step any to truth that benefit social value as a slight such clearly outweighed by derived from them is may v. New morality.” Chaplinsky in order and social interest (1942). 568, 315 572 Hampshire, U. S. held to constitute one such cate has been speech
Libelous Illinois, 343 U. Beauharnais v. 250 (1952); S. see gory, held to be outside the scope others that have been New Chaplinsky words, are v. fighting freedom speech Ohio, riot, Brandenburg v. Hampshire, supra, incitement States, Roth v. United 395 444 (1969), obscenity, U. S. New York (1957), 354 U. 476 and child pornography, S. Ferber, (1982).22 v. U. 458 S. 747 each these speech regarded unprotected by 22 Commercial was once as the First Chrestensen, Amendment, see Valentine v. but in Vir (1942), 52 S. ginia Pharmacy Council, Inc., Virginia Board v. Citizens Consumer (1976), rejected U. S. 748 we Though that broad false and conclusion. misleading speech category commercial represent could be deemed to ibid., unprotected speech, see doing the rationale for would be essen so tially viz., area, same as that involved in the libel “there is constitu no Welch,Inc., tional value in false statements of fact.” Gertz v. Robert 323, Moreover, U. S. usually since a commercial advertiser “seeks to disseminate specific product information about a or he service provides presumably else,” himself anyone knows more about than Virginia Pharmacy Council, Inc., Virginia Board Citizens Consumer S., n. “danger governmental there is a minimal regulаtion misleading price false or product advertising will chill accu nondeceptive Id., rate and (Stewart, expression.” J., commercial at 777 concurring). by public
Statements employees made employment in their capacity and touching not public on matters of unprotected concern be considered unprotected category, the limits of the
areas, as well as the unprotected particular *18 character of communications, have by judicial special been determined evaluation of facts significance. that have been deemed to have constitutional regularly cases, the Court has such conducted an inde- pendent speech review of the record both to be sure that the unprotected question actually category falls within perimeters any unprotected category to of confine within acceptably protected effort narrow limits an to ensure that expression Providing not be inhibited. of will triers fact general description type awith of the of communication unworthy protection not, whose content is of in and has of sufficiently category, nor itself, served to narrow the served danger may to eliminate the that decisions triers of fact expression protected principle inhibit the of ideas.23 The of viewpoint neutrality that the First underlies Amendment Department Chicago Mosley, itself, see Police v. 408 U. S. of (1972), imposes special responsibility 95-96 92, also a on judges particular whenever it is claimed that a communica- unprotected. generally Chicago, tion is See Terminiello v. (1949). 41, 337 U. S. independent judgment question have exercised on
We
particular
inherently
whether
remarks “were so
inflamma-
tory
'fighting
as to come within that small class of
words’
‘likely
average
provoke
person
which are
retaliation,
thereby
peace,’”
cause a breach of the
v. New
Street
(1969),
analogous ques-
York,
576,
394 U. S.
592
and on the
advocacy
inciting
producing
tion whether
is directed to
employment-related
in the
may
imposed
sense
sanctions
Myers,
(1983);
Connick v.
basis
such statements.
See
461
U. S. 138
District,
Givhan v. Western Line Consolidated
(1979);
School
410
439 U. S.
Education,
Pickering
Board
v.
imminent curiam); (per id., (1973) compare (Rehn- 108-109 (“The the result for dissenting) simple explanation J., quist, has the evidence majority interpreted in this case is below”); Edwards v. South Caro- from the courts differently lina, (1963) “to make an (recognizing duty U. S. Pennekamp record”); whole examination independent Florida, (“[W]e (1946) are compelled 328 U. S. ... to see ourselves the statements issue for to examine a threat сlear and carry present or not do whether of a character which the they are ... or whether danger protect”).24 Amendment. . . the First principles *19 under Miller v. California, 413 U. S. although Similarly, appeals “prurient of what interest” (1973), 15 the questions offensive” under the stand- community is “patently and what id., fact,” of “essentially test are questions ard obscenity the “ultimate we 30, expressly recognized power appellate an review of constitutional independent courts to conduct id., at 25.25 We have therefore necessary,” claims when Kansas, (1927) 380, 24 Seealso Fiske v. (explaining 274 U. S. 385-387 findings this Court will review of fact a state court where a federal right support been on the basis of a fact without has denied evidence to right finding it and where a conclusion of as to a fact law federal and a York, New intermingled require analysis Gitlow v. facts); are so States, 251 U. 652,665-666 466, 483 (1925); 268 U. S. v. S. United Schaefer (1920) (Brandeis, J., Oklahoma, dissenting); generally Broadrick v. see Carolina, (1973) 601, Edwards v. South (explaining S. 613-614 372 Louisiana, (1963); Cox Cantwell v. 229 v. (1965); U. S. 379 U. S. 536 and Connecticut, (1940)). 296, 310 U. S. statement, in Roth support opinion In of this we cited Justice Harlan’s States, United (1957), U. S. 497-498 he where observed: peculiar genus “The ‘obscenity’ ‘speech Court seems to assume that is a distinct, press,’ is recognizable, poison ivy and which as and classifiable as among plants. other this basis the constitutional is On question before us becomes, simply says, abstraction, as the ‘obscenity,’ Court whether anas protected by Amendments, is question First and Fоurteenth and particular whether a suppressed book be becomes a mere matter of the contention that a ml
rejected jury finding obscenity from non is insulated review so as the was long jury properly instructed and is some evidence to there its support findings, that substantive constitutional limitations holding govern. (1974), Jenkins v. U. S. 159-161 Georgia, based an examination the evidence —the ex- independent of a motion Court held that film picture hibition —the not, as matter of law, “could constitutional question found to sexual conduct depict patently offensive Id., .” at 161.26 in its recent . . . And way opinion identify- of unprotected expression a new ing category pornog- —child expressly anticipated Court an raphy “independent —the classification, ‘fact,’ to be entrusted to a factfinder and insulated from surely independent judgment. problem But constitutional cannot be Every generalized solved in such a fashion. communication has an individ- uality suppression particular ‘value’ writing of its own. of a is, tangible expression therefore, matter, other form of an individual every things suppression the nature such raises an individual con- problem, in reviewing stitutional which a court must determine for itself expression suppress[i]ble whether the attacked within constitutional readily standards. Since those standards do not lend themselves to definitions, generalized problem analysis the constitutional in the last *20 particularized judgments appellate becоmes one of which courts must make for themselves. reviewing
“I not think escape responsibility do courts can saying facts, jury judge, trier be it a or a ques- has labeled the ‘obscene,’ for, ‘obscenity’ tioned matter as if suppressed, ques- tois be particular tion whether a is of really work that character involves not an question judgment issue fact but a of constitutional of the most sensitive and delicate kind.” 26 Hamling States, (1974) 87, Cf. 100, (holding v. United 418 U. S. 124 jury of obscenity supported by determination was the evidence and applicable reviewing peti consistent with constitutional standard while sufficiency arguments tioner’s of the evidence regarding other under issues States, (1942)). the test of Glosser v. United 315 generally U. S. 60 See Ohio, J.) (de S., v. (opinion Brennan, Jacobellis 378 U. at 187-190 novo required obscenity cases); id., (Warren, J., at 202-203 C. dis (intermediate review). senting) standard of may allegedly unprotected material be examination” judgment. necessary . . ‘does “to assure ourselves of free ex- on the field intrusion a forbidden constitute not Ferber, at n. 28 pression.’” S., U. York v. New 285). Sullivan, S., 376U. at (quoting Times v. New York Co. Sullivan, after Times v. announc- New York Co. Hence, in finding requirement ing for a “actual the constitutional only types actions, of defamation was in certain malice” independent an review of conduct should that we natural dispositive constitutional issue. We on the evidence explained follows: our action as duty is not limited to the elaboration of
“This Court’s proper principles; we must also cases re- constitutional principles evidence to make certain that those view the constitutionally applied. case, This is such a have been question alleged trespass particularly is one of since speech unconditionally guaran- across ‘the line between regulated.’ legitimately speech which be teed and Speiser Randall, v. 357 U. S. 525. cases where drawn, the rule is that we ‘examinefor that line must the statements in issue and the circumstances ourselves they under which were made to see . . . whether principles of a are character which the of the First adopted by Amendment, as Due Process Clause of protect.’ Pennekamp the Fourteenth Amendment, Florida, 331, 335; One, Olesen, 328 U. S. see also Inc. v. 355 U. 371; S. Sunshine Book Co. v. Summerfield, independent 372. S. We must ‘make an examination Carolina, the whole record,’ Edwards v. South judg- 229, 235, U. S. so as to assure ourselves that ment does not constitute a forbidden instrusion on the (footnote expression.” field omitted).27 free S., *21 27This Court “has an ‘obligation challenged judgments against to test guarantees of the First and Amendments,’ doing Fourteenth and in so ‘this making Court cannot avoid independent an judgment constitutional
509
Pape,
Time,
Inc. v.
401 U.
279 (1971),
S.
a case in which
the Federal District
had entered
verdict,
Court
a directed
we
conducted an
examination
again
independent
of the evidence
malice,
on the
of actual
our definition
question
labeling
of
malice” as a “constitutional
rule”
“actual
and
stating
before us was whether that rule had been correctly
question
case, id.,
facts of the
at 284. Again
to the
we stated
applied
“of this kind are
under
independent
inquiries
that
familiar
in
settled
cases
which there is a claim
principle
‘[i]n
of denial of
under the Federal
rights
Constitution,
Court
is not bound
the conclusions of lower
but will
courts,
re-
Ohio,
[opinion
facts
v.
(1964)
of
case.’ Jacobellis
S.
184,
378
190
Brennan,
of
simple
questions
The
fact
that First
J.].
Amendment
compel this Court’s
‘constitutional fact’
de novo review. See Edwards v.
Carolina,
Alabama,
South
372 U. S.
Blackburn v.
229,
(1963);
235
361
Metromedia,
(1960).”
n. 5
Rosenbloom
U. S.
v.
403 U. S.
199,
29,
Brennan,
J., joined by Burger,
(opinion
J.,
(1971)
Black
C.
J.).
Tanner,
generally
(1917)
See
Adams v.
mun,
U. S.
(“Ex
J.,
(Brandeis,
dissenting)
jus oritur. That ancient rule must
facto
law”).
system
prevail
living
in order that we
have a
Sullivan,
reviewing
In New York Times
v.
we
a
Co.
were
state-court
judgment
jury
Respondent
entered on a
verdict.
had contended that the
precluded
independent
Recognizing
Seventh Amendment
an
review.
by jury
the Seventh Amendment’s ban on reexamination of facts tried
applied
coming
courts,
Q.
to a case
Chicago,
from the state
B.
R.
&
Co. v.
Chicago,
(1897);
Murray,
166 U. S.
243-246
The Justices v.
9 Wall.
(1870);
generally
(1830),
see
Bedford,
Parsons v.
examine the basis on which those conclusionsare noting involving that “in cases the founded,’” area tension the and Fourteenth Amendments on the one between First on the have fre- other, hand and state defamation laws we quently ‘the in . . . had occasion evidence the constitutionally support it could record to determine whether Ibid, (citations omitted).28 judgment’ plaintiff.” for the (1971) Roy, 401 In Monitor Patriot Co. U. S. matter of constitutional the held “as a law” that the Court jury allowed to determine the relevance of a could not be defamatory plaintiff’s public to the status as a statement jury’s figure. explained application We of such a unlikely respect standard “is to be neutral with to the content becoming speech danger of an and holds a real instrument suppression ‘vehement, caustic, for the of those and some sharp supra, unpleasantly attacks,’ Times, New York times protectеd guarantees must be if the of the First which prevail.” are to Ibid.29 and Fourteenth Amendments requirement independent appellate review reit- in New York Times rule of erated Co. v. Sullivan is a fed- emerged exigency It from eral constitutional law. deciding purest cases; concrete is law in its form under our heritage. deeply common-law It reflects a held conviction judges particularly Members this Court—must —and Time, Harlan, Pape, Justice dissenter in Inc. v. lone observed merely case, agreed the Court had in refound the facts but evidentiary was free to examine for upon Court itself the bases which argued decision below He power rested. that this need not be exercised every case, independent rather lim but review of the evidence should be exist, “allegations cases in which ited to certain “unusual factors” such as S., harassment.” at 294. right speech A similar concern “preserve with need to of free by tyrannous, suppression well-meaning majorities both from from States, by minorities,” irresponsible, abuse fanatical v. United Schaefer S., (dissenting opinion), at 482 Brandéis was identified Justice explaining special allowing jurors risk to evaluate the character present danger” presented by speech. arguably the “clear and seditious *23 preserve precious such in order to exercise liber- ques- ties established and ordained The Constitution. in tion whether the evidence in the record a defamation case convincing clarity required strip is of the the utterance of protection merely question First Amendment is not a for the Judges, expositors the Constitution, trier of fact. independently as must in
decide whether the evidence is record sufficient to cross the threshold that constitutional bars the entry any judgment supported by is not that clear and convincing proof of “actual malice.”
hH r—4 (1) Appeals The was correct in Court of its conclusions significant proof there is a difference between of actual mali (2) falsity, proof ce30 and mere and that such additional proof lacking in this case. portion opinion may
The factual of the District Court’s (1) fairly including following findings: Selig- read as perception apparent son’s actual movement of the “along sound source at 901 the time the Bose was tested was (2) the wall” rather than the room”; “about even when the disputed words sentence are read the context of the any “average article, entire neither the reader,” nor other intelligent person, interpret would the word “about” to mean (3) Seligson intelligent, per- “across”; is an well-educated (4) meaning son; the words “about the room” have the same (5) Seligson populace general; for as do for the and although Seligson’s he was otherwise a credible witness, tes- (a) timony pick he did not “know what me made 30 proving burden “actual requires plaintiff malice” to demon strate with clear convinсing evidence that the defendant realized that his statement was subjectively false or that he entertained serious doubt as Sullivan, g., See, e. New York to the truth his statement. Times Co. v. Welch, Inc., S., 280; Gertz Robert S., 342; 376 U. at see also v. Thompson, St. Amant (1968); generally S. W. Pros see (4th ser, 1971). 771-772, Law of Torts ed. (b) particular of words” that the word “about” choice board, is not credible. he had drawn on the meant what testimony of witness is not the trier believed, When the Normally disregard simply it. the discredited of fact drawing testimony a sufficient basis for is not considered contrary Chesapeake R. Moore v. & Ohio conclusion. See judge Co., this case the trial 340 U. S. Seligson impossible to believe that continued found it Seligson’s “about” meant “across.” maintain that the word *24 any testimony actual does not rebut inference of malice that supports, equally but it is clear that it the record otherwise convincing not constitute clear and evidence of actual does Seligson displayed capacity a for rationalization. malice. it, He had made a mistake and when confronted with he steadfastly attempted refused to admit it and to maintain no mistake had been made—that the inaccurate was attempt failed, accurate. That but the fact that he made attempt not establish that he realized the inaccu- the racy does publication.
at the time of Seligson’s attempt Aside from vain to defend his statement description precise оf of movement, as a the nature the sound only of evidence actual malice on which the District Court the fact that relied was the statement was an inaccurate de actually scription Seligson perceived. Seligson of what had “I of course had insisted know what I heard.” The trial him word, court took at his and he reasoned since did meaning know he had he heard, what and knew that the language employed accurately did not reflect what he have heard, he must realized the statement was inaccurate at “Analysis adequate it. the time he wrote this kind be alleged purports eyewitness other when the libel to be an speak Time, direct account events that themselves.” for Pape, generally v. S., Inc. at 285. See San Trinidad, tissima 7 Wheat. 338-339 how Here, adoption language ever, chosen was “one a number interpretations” possible rational of an event “that bristled ambiguities” descriptive challenges for the writer. with Pape, supra, Time, Inc. v. at 290. The choice of such language, though reflecting misconception, place does not beyond speech outer limits of the First Amend- protective ment’s broad umbrella. Under the District Court’s analysis, any using malapropism might individual liable, intelligent speaker simply an would because have to know though in context, inaccurate even he term was did folly not realize his at the time. represents
The statement this case the sort of inaccu- racy cоmmonplace in that is the forum of robust debate to applies. New York Times rule S., which the at 292. “Realistically, inevitable; . . . some error is and the difficul- separating ties of fact from fiction convinced Court in Butts, Times, Gertz, New York similar cases limit liability degree culpability to instances where some present self-censorship in order to eliminate risk of undue suppression and the of truthful Herbert material.” (1979). “[E]rroneous Lando, 441 U. S. 171-172 state- protected ment is in free . debate, inevitable and . . must be *25 expression ‘breathing if the freedoms of are to have the space’ ... that ‘need to survive.’” New York Times (citation omitted). Sullivan, Co. v. atS., 271-272 Appeals concerning The of Court entertained some doubt ruling applied New York Times rule should be product disparagement a claim of based on a critical of review loudspeaker system. express ruling, We no view on that having accepted purposes deciding but it for case, of we agree Appeals with the Court that the difference between hearing hearing violin sounds move around the room easily breathing them wander back and forth fits within space gives may that life to the First Amendment. We accept purely findings all of the factual of the District Court and nevertheless hold as a matter of law that the record does convincing Seligson not contain clear and his evidence that employer prepared loudspeaker knowledge article with disregard contained a false statement, or with reckless truth. of the of the District case, “finding” in this
It well be that could have been set aside question Court on the actual-malice review, share standard of and we the clearly-erroneous under the statements of Appeals of the Court concern Moreover, line fact opinion. tread the between issue us may central before seem legal question analysis dispute about sound involving out of in a case place But though question presented of a quality loudspeaker. we peculiar reaffirm wavelength, reaches us on a somewhat that we have appellate independent the principle hold the clearly- times before. We uncounted applied 52(a) of the Federal Rules of Civil of Rule erroneous standard the standard of review to be ap does not prescribe Procedure in of actual malice a case a determination plied reviewing York Times New Co. Sullivan.31 v. Appellate governed by exercise independent judgment such a case must judges the record establishes actual malice and determine whether with convincing clarity. judgment the Court is affirmed. Appeals
It is so ordered. are, course, findings many There in a that are fact defamation case irrelevant to the of New constitutional standard York Times Co. Sulli 52(a) clearly-erroneous fully van and to which the standard Rule Indeed, applicable. actually necessary it is not to review the “entire” independent appellate record to fulfill the function of review on the actual- question; rather, only portions malice those of the record which relate to the actual-malice independently determination must be assessed. The independent equivalent review function is not “de review of to a novo” judgment itself, the ultimate a reviewing original which court makes an *26 appraisal of judg all the evidence to decide whether or not it believes that ment plaintiff. reviewing should be entered for If the Court determines has convincing clarity, judg that actual malice been established with may only ment ground trial court be reversed of some other clearly or finding Although error law erroneous of fact. the Court of Appeals perform review, stated that it must plain a de novo it is 52(a) Appeals any finding Court of did not overturn factual which Rule applicable, engaged would be independent but instead in an assessment only germane of the evidence to the actual-malice determination. judgment. concurs in Chief Justice White, dissenting. Justice
Although disregard” I do not believe that the “reckless component ques- the New York Times malice standard is a agree tion of historical with Justice fact, Rehnquist I actual-knowledge component surely Here, is. the Dis- defamatory trict Court found that the statement was written knowledge falsity. Appeals with actual The Court thus basing disagreement erred its with the District Court on majority today its de novo review of the record. The equally Appeals I error. would remand to the Court may perform proper so that it its task under the standard. Justice Rehnquist, with whom Justice O’Connor joins, dissenting. irony
There is more than one this “Case the Wander- ing subject Instruments,” which matter makes it sound more like a candidate for inclusion in the “Adventures of Sherlock Holmes” than in a casebook on constitutional law. It is place principle ironic in the first that a constitutional which originated in New Sullivan, York Times v.Co. U. S. (1964), because of the need for freedom to criticize the con- public applied magazine’s duct of officials is here to a false loudspeaker system. statements about a commercial protecting It is also that, ironic in the interest of the First rejects “clearly Amendment, the Court erroneous” stand- ard of review mandated Federal Rule of Civil Procedure 52(a) in favor of a “de novo” standard of for the “con- surrounding stitutional facts” the “actual malice” determina- dispositive tion. But the facts of that determination —actual knowledge subjective disregard reckless for truth —in- findings more volve no than about the author, mens rea of an findings appellate simply ill-prepared which courts are any including make in context, the First Amendment con- something text. Unless “actual malice” now means different given years ago by from the definition to the term 20 *27 Times, I think that the constitu- York do not Court New properly bring requirement can into malice” tional of “actual “clearly any play review other than the factual standard of erroneous” standard. by it concluded what found
In this case the District Court respondent’s engi- convincing evidence that to be clear and defamatory Seligson statement written the neer Arnold had knowledge product that it was false. with actual about Bose’s relying expressly on its determina- It that conclusion reached credibility Seligson’s testimony. F. tion about (1981). appeal Supp. there no issue 1276-1277 On was 1249, properly had understood the District Court as to whether findings legally establish “actual mal- sufficient to what were necessary any quantum nor there issue as to the ice” was proof proof proper nor of the burden of allocation pro- appeal only thus “actual malice.” The issue was priety had of the District Court’s factual conclusionthat Bose actually proved “actual malice” this case. Yet the Court Appeals never rebutted the District Court’s conclusion knowledge Seligson printed had actual that what he Instead it de novo was false. concluded after Seligsoh’slanguage merely “imprecise” such, was and that as “support it would not an inference of actual malice.” F. 2d just
It is unclear to me what that determination Appeals has to do Court with the mens rea conclusionnec- finding essary “actual malice” and with the District finding knowledge аpproving Court’s actual here. Appeals’ judgment Court of de novo on the “actual malice” question, testimony for all the factual detail and rehearsal of majority’s opinion with which the adorned, never Court quite grips finding comes to with what factual must focus point “[t]he At on. one we are told in this statement represents inaccuracy commonplace case the sort of that is in the forum of robust debate to which the New York Times applies,” suggesting disparaging ante, rule
517 perhaps any or false, statement was not even at rate not false enough. paragraph later, One we are told that “as a matter convincing of . . . the law record does not contain clear and Seligson employer prepared or his evidence that the loud- knowledge speaker article with contained a false disregard Ante, or with reckless of the truth.” statement, question presented Court at 513. The remarks that peculiar wavelength,” ante, “reaches us on a somewhat scarcely transmitting is for 514, but that a reason the answer peculiar wavelength. equally on an my problem attempt view the from results the Court’s always here, to treat what is other contexts been, has pure something question fact, as more than a fact—a correctly points so-called “constitutional fact.” Court independent appellate underlying out that review of facts by previous constitutional claims has bеen sanctioned deci- where “a sions this Court conclusion law as to a Federal right finding intermingled and a of fact are so as to make it necessary, pass upon question, in order to the Federal to analyze Kansas, the facts.” Fiske v. 274 U. 385-386 S. (1927). always perfectly in other But contexts we have felt leaving at ease state-of-mind determinations, such as knowledge actual and recklessness determinations involved only appellate here, triers fact with deferential review— example, proving for in criminal cases where the burden of greater convincing” those facts even than the “clear and applicable standard under New York Times.1 attempting justify independent appellate 1 In of the “actual determination, majority malice” analogy which draws an to other cases attempted categories unprotected speech, have to define such as obscen Ferber, ity cases, 747, 774, child pornography New York v. 458 U. S. California, Miller (1982); Roth v. (1973); 28 United n. v. 413 15 U. S. States, (1957), involving 354 U. inciting anger S. and cases words Indiana, curiam); violence, (1973) Hess v. New (per Street U. S. 105 York, (1969); Chaplinsky Hampshire, v. New S. 576 S. mind, my however, clearly To kind of those cases more involve the of facts review” “independent doctrine Presumably any its may inexorably place that an court appellate not so exists, the con- party claiming favor of on the scales thumb perceived shortcomings but so that right, stitutional factor be com- or some other way fact bias trier of here is an only shortcoming to me, for.2 But pensated *29 call for de novo appellate review questions of fact and law which mixed cases, simply do the New York Times “actual malice” which involve than pure of historical fact. questions obscenity cases, appellate per- courts example, respect to the
For with triers of fact to make determinations haps just competent as are are as interests,” depicts whether it appeals “prurient to about whether material “patently way, offensive” and whether the material conduct in a sexual California, supra, at 24. Miller v. value, In the serious artistic lacks cases, necessary determinations, equally capa- words-inciting-violence “ ble of de novo review, ‘likely provoke are to appellate are whether words York, average supra, retaliation,’” Street New v. 592 person to at added) supra, New 574), (quoting Chaplinsky Hampshire, (emphasis v. at language” import the “rational inference from the of the is that whether Indiana, supra, imminent disorder.” Hess v. “likely produce it is at requires pure 109. None of those cases the kind of historical factual deter- the New York Times a as to the require: mination that cases determination particular person particular subjective actual at a time. state mind a in New York Times Co. v. Sulli correctly points The Court out that vаn, independent underlying appellate we conducted review of the facts that New York notable, however, the “actual malice” determination. It is Times trial, jury came to Court from a state court after a and thus presented strongest independent factfinding by case for this Court. factfinding process engaged by jury rendering general a a verdict eye is much less to the suspect evident naked and thus more than factfinding process engaged by findings trial judge a who makes written Justifying independent by jury as here. review of facts found a easier “yes” because of the of a general jury absence distinct or “no” in verdict particular as to a inquiry extremely factual of the narrow lati because tude appellate allowed jury courts to review facts found common law. Thus it surprising early is not to me that espousing cases the notion independent Fiske v. appellate facts,” review of “constitutional such as Kansas, Times, and New York (1927), U. S. 380 out should have arisen jury of the context only verdicts and perhaps then were reflex ively applied in quite other different analysis. contexts without further Time, (1971) v. Pape, Inc. See (involving appellate S. verdict). a District Court's directed inability
appellate court’s to make the determination which today mandates de novo the Court determination about —the particular particular mind the state of of a author at a time. Although there well be cases where the “actual malice” objectively can be determination made on basis review- just in the to me record, able facts seems as often it is credibility made, here, as on the basis of an evaluation of the testimony defamatory the author of the statement. appellate begin I loss to am at a see how courts can even any surely event, make such determinations. such deter- judge. minations are best left to the trial recognizes It is of course true as the Court that “where particular speech separating line falls close to the the lawful possibility factfinding— of mistaken unlawful, litigation danger inherent legitimate all create —will be penalized.” Speiser Randall, utterance will *30 the New 513, 357 U. S. But York Times rule adequately protected speech addresses need to shield factfinding by placing from the risk of erroneous the burden proving party seeking penalize “actual malice” on the to agree expression. I in with Justice Harlan comment- who, ing inappropriateness on the de novo fact review of “actual malice” determination, concluded that he could not in
“discern those First Amendment considerations powers regulate led us to restrict the States’ defama- public any tion of officials additional that is not interest by Times, served the actual-malice rule of New York supra, substantially promoted ap- by utilizing [an but pellate court] disputes as the ultimate arbiter of factual in thоse libel cases factors, where no unusual such as allegations jury ver- harassment or the existence of a resting present.” dict . . erroneous instructions . are (1971) Pape, (dissenting Time, Inc. v. 401 U. S. opinion). “falsity”
I think that the issues of and “actual malice” convinced, may questions, this case be close I am but principal witness for the Court, which heard District days during testify fully respondent the trial, for almost six applicable role understood both the law and its as finder findings clear to me that the de novo fact. Because it is not only appellate courts, them, with bare records before are findings any likely more reliable than the reached to be join majority’s sanctioning judges, I of factual trial second-guessing by appellate cannot pri- I
courts. believe that holding today greater mary will not be result of Court’s protection only values, for First Amendment but rather less- judgments ened confidence lower courts and more entirely appeals. factbound expressed
I adhere to the view continue to Pullman- 52(a) (1982), Swint, Standard S. that Rule exceptions purport make “does not categories to exclude certain findings obligation of factual from the of a court appeals accept findings clearly a district court’s unless depart erroneous.” is no There reason to from that rule here, and I would therefore reverse and remand this case to Appeals “clearly apply the Court of so that errone- findings standard of ous” review to the factual of the District Court.