Edward L. Carey v. Britt Hume, Jack Anderson

judicial reiteration of the close with a proceedings nature. The role 15, powers under Sections

Commission’s Shipping Act are un- 16, and 17 the court

questionably broad. Once Commission itself

satisfied

properly the nature understood reviewing duties, scope func- its its questions limited to of fact is

tion on

determining evi- substantial support

dence exists to Commission’s examined determinations. We challenges

carefully procedural questions

raised, as well as present

pear Commis- issues Having authority. statutory sat- sion’s did

isfied that the Commission ourselves these'matters, have exam- not err in we ined factual determi- the Commission’s therefrom,

nations, and conclusions its standard

under the evidence substantial occasion did we find

of review. no Accordingly, we af- error.

reversible approval of T-

firm the Commission’s modified, respects, all

deny petitions for review.

It is so ordered.

Edward L. CAREY HUME, Appellant,

Britt

Jack Anderson et al.

No. 71-1736. Appeals,

United States Court of

District of Circuit. Columbia

Argued Oct. 1972.

Decided Jan. 1974.

Rehearing Denied Feb. 1974.

Petition Dismissed June 1974.

See 94 S.Ct.

I complaint in the District Court alleged 14, 1970, that on December following syndi- published item was in a daily newspaper cated column known as Washington Merry-Go-Round”: “The WASHINGTON EXPOSE govern- Records Stolen? —With the digging deeper ment into the financial Workers, affairs of the United Mine Tony Boyle the union’s President and C., Appel, Washington, D. Leonard Carey spent Counsel General Ed hours Betty and with whom Warren Woods through recently going records. C., Murphy, Washington, D. Southard they Later, removing were seen box- brief, appellant. for were on the Boyle’s fuls documents from office. Forester, Jr., Washington, J. Gordon long afterward, Carey Not made an C., appellee. D. complaint Washington po- official Anthony burglars F. lice R. and William Glendon struck at union C., headquarters. Among goods Essaye, Washington, D. filed a brief re- Washington ported on behalf Post Com- stolen: a boxful of “miscella- pany Depart- neous items.” as amicus curiae. The Justice investigating. ment DANAHER, Before Senior Circuit complaint alleged further Judge, and Mac and McGOWAN by appellant this item had been written Judges. KINNON, Circuit co-defendant, Anderson, and a Jack with damage purpose appellee’s a malicious Judge: McGOWAN, Circuit reputation, with and caus- the effect of injury. compensa- such Substantial legal issue of troublesome tory punitive damages sought. and compelled by journalist appel- An was filed on answer behalf gave sources information rise Anderson, and lant which described interlocutory appeal (28 this U.S.C. § pellant employed the latter 1292(b)) from the District It Court. gathering, purpose “research, comes to us in the context a civil ac journalistic writing course libel, tion for as contrasted with the employment.” Authorship was ad- setting Supreme criminal in which the paragraph upon mitted of the which the recently Court has most examined the complaint based, liability but compulsion. sustained discovery proceedings denied. Extensive Branzburg Hayes, 92 S. engaged were then both sides. Ct. Al L.Ed.2d 626 The facts which follow are derived from though may degrees discernible deposition appellant. taken of of difference at social interests taching testimony publication exaction the item Prior compared appellant established, the one question, field as oth direct er, concluded, police department, we inquiry on the basis authority reason, burglary complaint both liti mentioned civil gation proper po- story has its on entitlements oc had in fact been filed pursuit appellee attempted casion to the of truth wherever to call lice. He also day go story press, be found. findWe was to presents occasion; being him, but, record one such to reach unable went publication, apparently we affirm the District Court. forward with attempt with no further at verification sure he had notes of the taken ¡ day story ap- of his facts. The revelations made him his infor- peared appellee appellant, mants, and, called so, pre- whether he had / conversation led to the inclusion of this served them. published item the column December Appellee then made motion under 15: 37(a), compel ap- Fed.R.Civ.P., Rule pellant eye- to reveal the names of report CAREY’S DENIAL—Our Appellant opposition witnesses. filed an surrounding the circumstances re- motion, ground to this the first of which ported burglary of a box “miscella- “generic question” was that raised neous items” from United Mine Work- by pending the motion was headquarters ers drawn has a belated Supreme petitions Court on for writs angry but denial from the union’s Branzburg trilogy certiorari in the general Carey. counsel Ed cases; signifi- and that because of “the contemptible, despicable lie,” “A said posture cant at issue be- Carey. report Our was based in- Supreme Court,” fore the the motion supplied by eyewitnesses, formation pending disposition should be denied and we will not retract. grounds the writs.2 The other advanced story Since this second indicated that by 'appellant were the constitutional eyewitness the first had been on based privilege, claim of and the assertion that observation, appellant was asked the sought the information was not relevant identity Although ap- of those sources. appellant’s to proof. or case material to his pellant refused, by as directed coun- his give sel, names, their he did indicate Pretrial Examiner recommended The that there was more than such in- one appellant required answer formant, they and that UMWA were eyewitnesses; questions concerning the employees.1 Appellant also disclosed in Court, disallowing ap- and the District deposition the course of the he did pellant’s objections to the recommenda- not know the date by which the activi- directing tion, him entered an order ties occurred, described him had but so, stay provided pending do with a de- any during said it could have been time appeal. appeal termination This of. immediately the six prior pub- weeks is from that order. eyewitnesses The claimed lication. provided no written statements affi- or II davits, appellant nor did know of writing recording dispute summarizing There is no before us to the proof appellee must accounts of these standard incidents. He was un- Appellant’s opinion Appeals, Supreme 1. one counsel made Court it clear deposition transcript Pappas limiting In re [408 that he also decided was his eyewit- non-disclosure from the Su 626] 33 L.Ed.2d instruction to those Massachusetts, preme ness sources who “have been Judicial Court of or are now employed by Caldwell, United Mine United States v. Workers.” Supreme permitted give Judi witness was from the Ninth Circuit. Massachusetts, names decision of sources of cial Court of whose information who were employees, Pappas compel a newsman to Government in In re but this information grand testify jury did not relate sustained before a observation of removal recently Supreme Court, held that a records UMW offices. grounds journalist pretrial must, dis asserted in the course of counsel at time as respond supporting libel, covery appellant in a action instruction tort questions seeking against the sources was fear retaliation writing employees, al UMW of information used the First Amend- rights story appellant defamatory legedly Dow Jones ment news as a af- newsman privilege Superior Court, Mass., N.E.2d forded him to reveal confi- & Co. dential sources. Branzburg, In addition to which involved judgments Kentucky two Court of ultimately in a TV-radio column written Marie to win his ease. if he is meet rigorously printed in Her- demand the New York Torre is the That standard ald v. Sulli The column contained sev- Times Co. York Tribune. of New one L. eral statements about Garland which van, Supreme Torre in her column attributed a CBS (1964), where the Ed.2d 686 “network principle executive.” Court established fig attempt iswho In an civil libel to learn the name is alleged detractor, plaintiff deposed that the statement ure must show malice or published actual sue was three CBS executives without success. disregard deposition of the truth.3 by plaintiff in reckless taken Gar land, newsman’s of an asserted the context columnist refused disclose confidential her sources and sentenced to 1 0days sources, jail is a source of contempt. rule Sullivan criminal On hand, appeal upheld the Court’s On one Second Circuit tension. potential spectre Court, concluding li of District the resolu concern that might inhibiting ef an tion of actions the First in bel Amendment issue .have press although freedom it, perhaps of the case on the exercise before fect against compulsory “delicate,” militates was not “difficult.” See heavy Contrarily, bur Jersey, of the Schneider v. sources. State of New 308 plaintiff upon proof imposed 147, 161, the 146, den of U.S. 60 84 155 S.Ct. L.Ed. discovery (1939). often make in a case will such any of confidential sources critical key The factor which the Cir- Second carrying hope of that burden. allowing cuit identified as it to move confidently to this conclusion was that years mark before Sullivan six Some “question asked the of went to ground [Torre] edly for recov rules the altered ¡the plaintiff’s heart of the The claim.” ery actions, there in defamation civil process respect to the v. the case Garland 1958), was decided ¡decisional it, issue (2d before said Torre, ¡¡constitutional “court, cert. F.2d 545 Cir. 259 involved a determination 237, 910, denied, L. 79 3 358 U.S. S.Ct. “whether the interest to be served (1958). opinion Ed.2d 231 compelling testimony Judge the witness Circuit court was written present justifies sitting case some im- (now Stewart, Justice) in Mr. pairment of designation. this First Amendment free- In Second Circuit ” Conceding dom . . free- Judy sued Columbia that case Garland press dom of the ety,” is “basic to a free soci- Broadcasting alleging System, Inc., say went on to that “ba- had made false and defamato the latter sic too justice, are courts of her, armed with ry and had autho statements about power truth”, publication discover and that their rized or induced “concept duty example that it is the of a wit- newspapers. publi An such testify ness a court complaint in of law has cation attached to fully deep history roots as in our does appearing as paragraphs the form of some recognized heavy stage litigation We have burden In an earlier imposes upon alleg by appellee which that standard that he was was some intimation edly plaintiff. Thompson See, g., public figure defamed e. not a the reach of Sulli- within Evening Company, Newspaper however, since, expressly v. dis- Star van. He has U.S.App.D.C. Publishing 299, 774, 776, position. 394 F.2d cert. claimed Curtis See denied, Company Butts, 89 S.Ct. 21 L.Ed. v. U.S. (1968), (1967). event, 2d 160 where held that we 18 L.Ed.2d 1094 plaintiff sum could not survive a motion for atten- because of focus of the recent mary judgment get jury Mine tion .the affairs of the United ques- Workers, issue of he makes show malice “unless some be no there would seem to applicability malice ... facts from which tion as to the the Sullivan Inc., may Metromedia, be inferred ...” standard. Rosenbloom 1811, 29 U.Ed.2d 296 thought press.” attitude to- guarantee reflect an free ^ different/) palpably an ward libel actions that “[I]f on to conclude court went liberty— approach grand jury pro-' from its First Amendment additional Branzburg. is, ceedings in how- here There of the freedom —is ever, conclude the matter of continu- volved, not the Court’s do hesitate we give ing gost-Sullivan place under citations of Garland.5 must it too suggests continuing paramount public in strongly This Constitution negates vitality case, of the latter in the fair administration terest any inference that does justice.” Court not; consider the interest striking balance the constitutional defamed| important one. per- Garland, contemplated could although Branzburg’s argued that, lengthy the Sulli- haps of a discussion duty libel testify civil newsman’s van did eliminate decision downgraded grand jury entirely, implications undoubtedly it has so suits plaintiff’s respect importance that a ac- deference to be social pressing can a claim corded a newsman’s such claim of interest Although ever, outweigh in- rarely, other a newsman’s areas the dif- well. protecting pro- sources. ferences between civil terest and criminal ceedings distinguish Branzburg opinion in Sullivan tenor Court’s the First These recent 4. Over and above the claim that reaffirmations historically grounded obligation every the com- Amendment without more barred person appear give pelled sources to his evidence be- disclosure of the confidential grand jury. newsmen, upon personal urged in the fore “The sacri- of it was the part necessary recognize, apart a fice involved is the Garland that it should Constitution, a interest contribution of the individual to the wel- the societal throwing public.” by the fare of the Blair v. United unrestricted flow of news privilege 273,- 468, protection States, qualified 250 [39 of at U.S. 281 S.Ct. least 471, identity v. Not- 63 L.Ed. 979]. over the news source. See also Garland the Cir.], 545, ing question in Torre 549. [2 259 F.2d threshold as to governed, diversity case York law New opinion pro- dissenting privilege in In there Justice Marshall’s the court found no such p. 764, rejected (410 41, law, 35 that case U.S. 93 S.Ct. vided under New York along sought 67), cited, non-statutory with as one L.Ed.2d Branzburg Garland is the cases, jus- Supreme poorly other Court which serve the cause “would testify suggesting compulsions as that to tice.” personal testimony argued was, lastly, the limited as distinct that to It in Garland exemplars. judge precise should, circum- from voice district him, his dis- exercised stances before Branzburg itself, in In was cited Garland cretion under Rule the 30 to opinion as Mr. for the Court Justice White’s regard suggested In that source. it was p. (408 p. 686, 92 at U.S. at S.Ct. follows 2659): “might to ac- the be able Garland quire else”, and the information somewhere 1958, gatherer as . . a news . that the claim was value on of such doubtful First the first the serted for time compulsion testimony merits that the exempted .its infor Amendment confidential these, would be no use. first of As to the pursuant to mation from possible that, the court noted it was while suit, subpoena in issued Garland civil plaintiff might have learned the (CA2), Torre, de cert. v. 259 545 discovery proceedings from further nied, 237, L.Ed. [79 358 U.S. 910 S.Ct. against CBS, “her in that reasonable efforts denied, (1958), 2d but the claim was 231] singular suc- direction had met lack of with argument uni been almost and this second, it- cess.” As to the the court found rejected although formly since then say self unable was frivo- to the claim that, in circumstances are occasional dicta especially sought lous, since information might here, presented a newsman materiality to relevance was of obvious excused. . . its establishment. appears dissent Justice It also in Stewart’s p. p. (408 Dionisio, at 92 S.Ct. at 743 n. 5. 410 U.S. United States joined by (1973), 2681), Justices L.Ed Justice S.Ct. .2d 67 turning upon Marshall, Douglas Stewart, writing Court, referred sought finding Branzburg (pp. 8-9, “went the information in these terms plaintiff’s 769) p. claim.” the heart of : at anticipating ignore Hopefully us,6 a differ we cannot the case before appellant Branzburg, ent result asserted interests fact present Branzburg trilogy content the case us newsmen theory First Amendment determinative not accorded cases were room, any circumstances, left no under weight by of the Court. members five compelling identify a newsman to provide Although some cases these clearly That is source. not the law guidance importance as- to be as to Branzburg respect after to criminal signed competing inter- each of the proceedings, appears and it to us that ests, the ba- they to disturb do not seem Branzburg, language if not hold balancing approach in Gar- set forth sic ing, litigation intact, left civil insofar as Branzburg ap- Indeed, result land. concerned, approach is taken in Gar pears the vote controlled have been approach essentially That is that land. concurring opin- His Justice Powell.7 the court will look to the on a facts ion states: case-by-case basis course weighing testimony the need for the privilege should asserted claim [ against striking judged claims news on its facts ' right public’s man that proper know freedom balance between impaired.8 obligation of all and the give testimony citizens relevant Ill respect conduct. The criminal constitutional

balance of these vital Turning to the facts the case be- ease-by-ease and societal on a interests us, sought appears fore the information tradi- basis accords with the tried and go appellee’s heart libel ac- way adjudicating ques- tional such tion, certainly important the most factor omitted). (Footnote tions. exceedingly Garland.9 It would be at 2671. Liddy, U.S.App. 7. See United States v. Branzburg was decided after this case was (1972) (Leventhal, D.C. 478 F.2d 586 submission, thereby disappoint- taken under J., concurring). high hopes entertained for it embodying 8. There are no federal statutes pellant pressed strongly in both the Dis- newsmen, testimonial for nor has appeal, especially trict Court and on Congress any special provision made on respect to the Ninth Circuit decision score for the District of Al- Columbia. Caldwell, United' States v. 434 F.2d though jurisdiction diversity the elements of Branzburg. Although which was reversed in may present case, appear be in this it would certainly necessary carefully it is to consider jurisdiction attaching that was considered as emphasis Branzburg upon public the the applica- in the District Court under the then giving testimony, interest in the of we do provisions ble of the D.C.Code. automatically not believe that controls this case. This distinguish is a civil libel suit rather than a 9. This element serves to Baker v. grand jury inquiry crime, Investment, (2d into and the dis- F 1972). F& Cir. pute press over disclosure is the between That case involved a class federal private litigant and a pending alleging than rather between action in Illinois racial dis- prolonged period the Government. This differ- crimination over a importance, ence is of some Chicago part since the central sale of houses in of opinion thrust of Justice White’s Court concerns the traditional for some 60 realtors named as defendants. importance of Plaintiffs in that suit went into the South- grand juries strong public and the interest ern District of un- New York for an order jour- effective 37, Fed.R.Civ.P., compel enforcement of the criminal law. der Rule to pro- Justice nalist, York, White also relied on the various who had since moved to New prosecutors grand cedures available to identity Chicago disclose the of one real es- juries agent techniques “block-busting” informants and on careful tate whose power use magazine Government of the to com- had been the basis of a article 10 pel testimony. litigants years journalist. Emphasizing Private are not sim- earlier ilarly charged public although per- with the sought, interest and that haps the information prone be more simply to seek wholesale and relevant, not central indiscriminate plaintiff’s case, disclosure. distin- Second. Circuit Mayor’s appellee public image, complaint introduce evi- difficult for byond prove challenged only testimony para- dence his own four of those not, day graphs, any time of or while the that he did truth of the rest was night period expressly of sever- either over indefinite admitted or not denied. weeks, of documents remove boxfuls al sought Mayor by deposition if he did from the Even offices. UMW upon discover confidential sources whom false, prove that the statements part story. had relied Life showing requires of mal- Sullivan also publisher The defendant refused to dis- disregard ice or truth. reckless close that information and countered might step achieved That further be summary judgment. with a motion for relia-, proof appellant no in fact had that accompanied That motion was exten- misrepresented sources, he ble the) detailing prolonged sive affidavits reports sources, that reliance! of his research, and careful and numerous oth- particular sources wasl those sources, private, upon er both reckless.10 which the article was based. granted summary judgment for the de- identity Knowledge of the ground regardless that, fendant on the alleged logically an ini sources would identity the confidential proof tial such element plaintiff sources, the would be unable might Although it circumstances. establish It reasoned malice. possible of malice to submit extensive documentation and uncontro- jury simply on the basis accuracy of verted the bulk of arti- allegation^ parties, conflicting cle, combined with the evidence as to the provide procedure would seem prolonged, careful, comprehensive plaintiff little/prospect of success investigation, nature of the defendant’s heavy proof.11 of his burden view unlikely made it so Consequently, we find that the compulsory could succeed in his suit appel appellant’s sources is critical disclosure of the confidential sources lee’s claim. was unwarranted. unable In Garland the court was has, course, no say plaintiff’s There been motion was frivo- that the claim by appellant summary judgment can lous. we conclude Neither showing us, appel- no the case and thus record before us basis bearing upon of appellee In that re- facts the likelihood that claim merit. lee’s is without distinguishable spect be able meet the will Sullivan this case present record, pre-trial Time, Inc., standard. F.2d 986 Cervantes wide-ranging any event, (8th 1972), involved libel no discloses Cir. thorough against investigatory by ap- Mayor effort by Louis and action St. pellant comparable magazine. prolonged and to that demonstrated After a Life investigation, published an in the confirma- Cervantes. Aside from detailed Life Mayor burglary report, descrip- had tion of his representing article appellee’s appears ties with tion of actions to have and social maintained business Although solely organized the article been on the confidential based crime. generally question. paragraphs in In sources Cervantes consisted of 87 prepared period over a containing article had been detrimental statements wholly regards xjossibility, involving guished 10. As this see last as “facts Curtis Garland supra. Butts, Publishing upheld us”, Co. v. note 3 unlike those the news- District determination Court’s Indeed, court, questionable 1 1. at whether it best man need not disclose his source. permitted jury ordinarily rejecting infer would claim of ab- a First Amendment only ques- privilege, See Afro- malice from so little evidence. asserted that solute Publishing Jaffe, v. whether, American Co. U.S. was on the immediate tion before it (en (1966) banc). Judge App.D.C. 70, facts, abused wide 366 F.2d 649 the District had in him vested motions discretion disiwse under Rule 37. might by people that have disclosed the true name of several months numerous pseudonymous “spent corro- of informant. had countless hours who evaluating borating data.” 464 information on Our this score is con- proce- In to that at contrast appears appellant’s dep- fined to what attempted dure, appellant unsuc- after appellant There osition. testified cessfully appellee by tele- to reach one eyewitnesses employees were all phone call, publica- ahead he went UMWA. When asked num- as immediately waiting even tion without ber, colloquy occurred: day attempt appellee’s one to obtain is one that THE There WITNESS: only Further, action comments. personally I know of and understand I story appellee when denied was that there were others. along publish refusal that denial BY MR. FORESTER: to retract.12 Q. being more at least two Others not, course, do mean to inti- We talking that we are about ? any opinion appel- mate toas A. At least one more. investigation adequate, lant’s fact ultimately pre- oc- appellee As to the time when observations or whether will curred, appellant that his un- say only testified vail. We the facts dis- derstanding that “this was some- closed at this the record before us period thing support had been done over a inadequate are a conclu- time occasion;” time, appellee more than one unlikely sion that to meet is so give any admittedly heavy of the he was unable idea burden Sullivan purpose because his number of such occasions that no would be dis- served specific about that. sources had not been closure of the of the sources. understanding Appellant to be stated his is, finally, There the matter of the in the occurred the observations possible availability of the information working hours, during daytime normal from other than someone say precisely where he but was unable pro- pellant. The values resident building they place. took of the confidential sources tection certainly point that the com- We think assumed newsmen pelled towards the UMWA from the him- national offices newsman by very end, normally substantial number not the be- manned self employees. from the ginning, inquiry. clear It is also Garland ques- foregoing that the observations into account the fact took by anyone deposed made execu- have been three CBS tion could turning boy top officer, and from an office tives without success before building. Baker, supra, part We do note dis- Torre. concept exercising court, of exhaustion that the trict its discretion think deny compelled writer, invoked here is remedies relevant revelation vague Appel- guide marks as as these. had found that there were other sources high- showing damages Publishing Butts, ... 12. In Curtis Co. note constituting ly supra, extending an ex- Harlan, unreasonable conduct Justice Sullivan departure in- public figures the standards treme to reach offi- as well as ordinarily reporting p. 135, vestigation cials, expressed (388 adhered concern by responsible publishers p. . 1981) . rule “lest the to [Sullivan] 87 S.Ct. at damages Butts, press affirming gives to the award of become a the talisman which in- only adequate protection constitutionally a the sketchiness in the stressed Court publication. prior vestigation In- field, or, equally to un- made limited what would concurring Warren, deed, fortunate, goes immunize Justice far to Chief one which p. 169-170, just repara- Butts, having at at make 388 U.S. the from to investigative injury 1999, ef- “that little commented tion the of needless for infliction expended initially, through reputation no additional false and fort and was honor protest (p. inquiries publication.” after” 87 made even were Ilis formulation defamatory figure’ ‘public against matter. 1991) p. and denial of the at that “a S.Ct. recover also who is official not to the circum- own information as What we have all lant’s decided —and im- was so that we the observations have that decided —is the Dis stances appellee cannot, reason- no trict Court on precise to afford the limited record as begin. us, to before know where be said to have basis to abused able grant discretion in it vested or to quite unlike those These facts are compel discovery deny a motion under Garland, testified where rejected only Rule 37. have We con deposition did know who that she by appellant, tention made us and was who executive” CBS “network pre-Branzburg that was the claim that column, but referred to Torre’s be, is, or should an there either absolute it was “either had told that she been First Amendment com barrier or Robinson.”13 Hubbell Lester Gottlieb pelled disclosure newsman of appear to be this record Neither does under confidential sources circum were Baker where like not, view, That was in our stances. agents sixty real estate defendant some Branzburg, certainly law and it is charged discriminatory certain after, not the either civil or crim law practices, de- the informant was proceedings. inal agent himself as a real estate scribed engaged practices had in the same Affirmed. who time; place at same the same obviously why the saw no reason Judge (concur- MacKINNON, Circuit de- could not be defendants themselves ring) : posed for the information. same foregoing opinion concur in the but L the¡ always must courts alert to add some additional reflections wish limiting impingements* possibilities practical appellant’s result j upon press the minimum freedom to were to be sustained. claim doing way one is make so comj Supreme Court recent decisions pelled journalist a last long- changed substantially has pursuit opportuni- other resort after standing nation law of this so as libel lit- ties has failed. But neither must newspapers, make broadcast stations gants carry wide-ranging be made to others immune from civil criminal all discovery burdens where and onerous responsibility libelous statements emerg- ill-lighted path is as figures against public unless the state- deposition. appellant’s from maliciously, e., i. ments are made “with knowledge falsity or in reckless IV disregard they are true or Louisiana, important It is remember false.” Garrison appeal 64, 78, matter is before us on an 13 L.Ed.2d 125 S.Ct. (1964); Sullivan, order over- an District Court York Times v. New ruling part objection to that L.Ed.2d pretrial media examiner’s recommendation has been granted appellee’s quick advantage Rule 37 motion be take new- appellant, deposi- “either on further found freedom and since decision writing, identify ‘eye-wit- Times, supra, tion or in New York the nation has expansion him . .” nesses’ referred witnessed an enormous discovery began, appellant publication Before and statements articles denying liability. prior subject- filed an There under answer law have would proceedings publishers liability been far other thus ed no libelous by way judgment development of motion for or other- defamation. This wise, speed has no course there law also comes at time when been greatly trial. of electronic communication persons deposed presumably working by plain- 13. These utive in the same area two operations. Garland, tiff a third as was later exec- of network CBS 640 growing tempting prove concentration

increased a his case face would a developed ownership, power wall, practically opportu- blank with no This, nity and influence of the news media.1 to discover the of the al- leged coupled widespread with the existence source which the defense networks, electronic communication vests claims reliance. relatively people

a number of small publishers defamatory If media ability within a few to blan minutes given immunity were material to be ket the nation with that for statements fig disclosing sources, public from their prior years held to ac 200 be greatly restricted, would if not ures be pow tionable is libel. This an enormous recovering prevented, from their dam er. Ginzburg, ages, F. v. 414 Goldwater cf. (2d 1969), denied, requested by In 2d 396 this case we are Cir. cert. pellant, reporter, a 24 L.Ed.2d 695 news decide that U.S. (1970),2 private possesses importantly, but more news media effect vir- prevented tually liability individuals would be immunity equally absolute from securing compensation This would result if em- libel. those from fair ployed injury immunity their because news media were freed obligation disclosing alleged reporter testify from the from his as to their alleged apply sources, sources, or would to all suits news source their libel- publications. injured person public law, ous If whether the figure that were reporters private employers This immu citizen. nity (newspapers stations) would also inure to the benefit broadcast newspapers practical reporter’s employer, could as matter most cases be held and news media. never accountable for the serious injuries they cause. In cases where re- my prac- immunity In from view such covery justified the amount of dam- tically pub- responsibility all for libelous age, depends upon degree media, by the news lications constitut- malice, difficult, would be much more departure ing, would, as it a substantial properly impossible, not to assess where previously law, well settled would reliability alleged or existence of an contrary interest informant is unknown and unknowable. responsible press. not conducive appellant, Hume, Britt admitted as The media must be free it but much in published an article of his responsible. To should also hold that Magazine, New York Times Decem- responsible all it is to the same extent as ber 1972: responsible other for libel- citizens Carey point. publications, Yet has a ous additional If newsmen recognized Times, can refuse in New York to name freedom the source of de- infringement famatory stories, they effectively not amount an does can guarantee vitiate free what is left of the constitutional libel laws speech press. and the freedom of the [after New York Times v. Sullivan] by hiding Branzburg Hayes, anonymous behind sources Cf. whenever L.Ed.2d sued. logic grant my the constitutional of that view statement Hume disposes press” argument does “freedom ... in this case dispose immunity convey should an absolute claim for a re- porter’s immunity publish libelous information if the law is to be general fair public. then itself receives and If the law exercising injured were otherwise, and the source at- per questioning frequent response 1. 99.8 as to cent of homes of A America given by the defend- radio and television sets. sources would bo Statistical Ginzburg, States, 1972, supra: Abstract “I recall don’t who United ant at 691. addition, newspapers daily statement.” I I wrote that had a mind when paid 62,108,000 circulation at 332. reached homes. Id. at 501. proving from prevents victim source intent the malicious privilege publisher. The constitutional press. responsible To

contemplates a practical mat

grant as a media what immunity absolute to ter amounts —ab lead to tend to solute —would be, journalism would irresponsible Lippmann, “cor paraphrase Walter to proce journalistic

rupting to the whole accordingly fore concur I ss.” to

going opinion I believe because law and a correct statement public policy as well.

sound KIXMILLER, Petitioner,

Bruce C. COM

SECURITIES AND EXCHANGE MISSION, Respondent.

No. 72-1285. Appeals,

United States Court of

District of Columbia Circuit.

Argued Nov. 1973.

Decided Jan. 1974. process. journalistic Lippmann In the to the whole Walter commented as follows up in, grew journalistic general it wasn’t subject I world interview you question di- responsibility had to press of law whether : vulge your great It was sources. There’s been a over Q: concern guts reporter to recently press whether freedom of —the got infor- right sources, he reveal where refuse to of newsmen to go willing mation, government he was intimidate effort of the regarded necessary. prison That was media. Tou’ve been concerned newspaper elementary aof problem throughout your code career. Do that was —and you man. The reverse think serious threat is a practice always my someone freedom of the —when i>ress? confidence, something I didn’t [By Lippmann] told me I A: think Walter reporters could pass so we very it on to come often troubles relationship scoop. get get I had desire commercialized interviewing I didn’t want scoops, print man I was news. to be the first print places very that. These “sources” often (emphasis Washington Post, March get tips happen. going of what’s added). newspapers desire he first corrupting print particular information

Case Details

Case Name: Edward L. Carey v. Britt Hume, Jack Anderson

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 5, 1974

Citation: 492 F.2d 631

Docket Number: 71-1736

Court Abbreviation: D.C. Cir.