Mary Alice Firestone, Plaintiff-Appellee-Cross v. Time, Inc., Defendant-Appellant-Cross

BELL, Circuit Judge

(specially concurring) :

I concur in the result reached by Judge Ainsworth that the evidence is insufficient to warrant recovery by plaintiff in this case, and thus in the reversal. My reasons for reaching this result differ, however, in substantial measure from those of Judge Ainsworth. Moreover, I reach the result without the use of the procedural euphuism — a de novo review in the appellate court.

I.

In New York Times v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the Supreme Court fashioned a procedural technique under the aegis of the First Amendment to insulate the communications industry from state libel laws. That case involved a libel action brought by a public official against a newspaper. The rule was announced that in such an action, the complainant must meet a standard of proof of convincing clarity that a defamatory falsehood alleged as libelous was uttered with “. . . knowledge that it was false or with reckless disregard of whether it was false or not . . .” 376 U.S. at 280, 84 S.Ct. at 726.

This rule reached its full scope in Rosenbloom v. Metromedia, 1971, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, when it was extended to place the same burden on any citizen if the utterance involved is related to an issue of public or general concern. 403 U.S. at 44, 91 S.Ct. 1811.

Also in Garrison v. Louisiana, 1964, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125, and again in Rosenblatt v. Baer, 1966, 383 U.S. 75, 84, 86 S.Ct. 669, 15 L.Ed.2d 597, both public official cases, the court stated that the holding in New York Times v. Sullivan also establishes that the burden is on the plaintiff in such a case to establish the falsity of the utterance.¹

Thus, the present rule is that the buj’den of the plaintiff in a libel action against the news media arising out of a defamatory publication, where a First Amendment defense is asserted, is (a) to establish by clear and convincing proof ² that (b) the statement was false and (c), that it was published with the knowledge that it was false or with reckless disregard of whether it was false or not.

The Supreme Court has not expressly added the requirement of clear and convincing proof of falsity to the plaintiff’s burden of proof. As stated, the burden of showing falsity has been imposed upon the plaintiff in First Amendment cases. Garrison, supra; Rosenblatt, supra. Such a standard of proof seems implicit however, in the stated requirement in New York Times that plaintiff has the burden of showing by clear and convincing proof that publication was with knowledge of falsity or with reckless disregard as to falsity vel non. I conclude for the same constitutional reasons giving rise to this stringent proof requirement that the clear and convincing proof standard would also apply to proving that the statement was false in the first instance.

Given the rule of New York Times with the gloss of Garrison and Rosenblatt, supra, as extended in Metromedia, the questions become first, whether plaintiff sustained her burden of establishing by clear and convincing proof that the published statement in issue was false, and second, whether defendant Time, Inc., acting through its Life Magazine employees, printed the statement with knowledge that it was false or with reckless disregard of whether it was false or not.

Plaintiff, a hapless private citizen, involved in a divorce proceeding with attendant wiretapping activity at the behest of her husband and his private detective-minion, was partially the subject of a Life article on wiretapping where she was charged with getting one of her husband’s private detectives “to sell out and work for her.” This statement was alleged to be false and defamatory. The article in pertinent part is printed in the margin.³

In publishing the article, Life relied entirely on the text of a long telegram from a stringer correspondent, Chandler. The pertinent part of the text is contained in footnote 16 of Judge Ainsworth’s opinion. What appears from the text is that Mrs. Firestone “wooed one of Harwood’s top investigators, Carl Geisler, to work in her interests.” Chandler then quoted Mrs. Firestone as recounting an invasion by Harwood, Geisler and another private detective into her bedroom, through the medium of kicking the door down. The persons in the bedroom at the time were Mrs. Firestone, her baby and the baby’s nurse. Harwood expected to find a man in the house with Mrs. Firestone at the time, and the raid was on the signal of Harwood’s lookout, Geisler. Chandler stated in the telegram to Life that Harwood said to him that it was “on this occasion that he first knew that Carl Geisler had sold him out” to Mrs. Firestone.

Life’s conduct must be justified on the text of the telegram. The language of the telegram was escalated to some extent in the article but probably not to a prohibited degree. The rub comes from other facts contained in the telegram. There was much to put Life on notice to move cautiously. The description of Harwood’s work style was revolting to the point that one might question his credibility. In addition, Chandler drew the conclusion that Harwood had “developed a paranoiac hatred” of Mrs. Firestone. Life made no check with anyone other than Chandler before publishing the statement.

Nevertheless, I do not find it necessary to reach the question whether a fact issue is presented as to reckless disregard on the part of Life. I get no further than the preliminary question whether the proof is clear and convincing that the statement was false. The record will be searched in vain for clear and convincing proof that Mrs. Firestone did not arrange in some manner for the services of Geisler, a former private detective for Mr. Firestone. There is no express denial from Mrs. Firestone of the fact. There is unrefuted evidence that Geisler was working with and under Harwood for Mr. Firestone. There is substantial evidence that he was later in the service of Mrs. Firestone on some basis.

The district court made no subsidiary-findings of fact on falsity. At most, there was an assumption of falsity. As the court stated in New York Times v. Sullivan, 376 U.S. at 284-285, 84 S.Ct. at 728, where the case might have been retried if remanded or reversed, “ . . . we deem that considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment for [plaintiff].”

The record as a whole, including all subsidiary facts that might lend support to the allegation of falsity, is bereft of clear and convincing proof of falsity. There the matter ends.

II.

I also wish to register disagreement with the new procedure announced by Judge Ainsworth of deciding First Amendment cases de novo. I do not take the use of the term “de novo” for the first time in the plurality opinion in Metromedia (three justices), 403 U.S. at 54, 91 S.Ct. 1811, to establish a new and different standard of review in First Amendment cases from that previously announced by the Supreme Court.

The term “de novo” is not one to be used indiscriminately, given its other-uses in procedural law. One ordinarily thinks of a trial de novo when a case is appealed from one trial tribunal to another. Perhaps the most familiar use of the term in the federal courts was in the old admiralty practice where appellate courts reviewed admiralty trials de novo and could take additional proof where indicated. Judge Godbold in Caradelis v. Refineria Panama, S.A., 5 Cir., 1967, 384 F.2d 589, 592-593, discussed this former practice and the abolition of it by the Supreme Court in McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, which applied the clearly erroneous principle of Rule 52, Federal Rules of Civil Procedure, to admiralty cases.

When considering the state of records to be reviewed in appellate courts, state and federal, jury and non jury trials, it becomes apparent that the use of the term “de novo” in Metromedia was one of emphasis — to the end that reviewing courts must carefully consider the facts pertaining to constitutional questions. We do this by making our own careful examination of the record, with particular scrutiny of the underlying or subsidiary facts — to see if the factual conclusions meet the high standard set in New York Times, supra, of finding clear and convincing proof. This is the teaching of New York Times, Metromedia, Time v. Pape, 1971, 401 U.S. 279, 284, 91 S.Ct. 633, 28 L.Ed.2d 45; Edwards v. South Carolina, 1963, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697; Blackburn v. Alabama, 1960, 361 U.S. 199, 205 n.5, 80 S.Ct. 274, 4 L.Ed.2d 242. This leaves the law as a workable institution. A de novo review in the traditional sense would reduce the trial courts to a level below that of a master; they would simply be recorders of the evidence. There would be no one to make credibility choices. We are not told what would be done with jury verdicts nor with the Seventh Amendment. This is not my reading of the plurality opinion in Metromedia.

I hasten to add that Judge Ainsworth has only used the term “de novo” in his review of the record. I neither perceive nor suggest that he would or has ignored credibility findings or the clearly erroneous rule as it applies to underlying or subsidiary facts as distinguished from conclusions of fact.

1 . This is a departure from the rule that a defamation is presumed to be false with the burden being cast upon the defendant to jilead and prove truth. Prosser, Law of Torts, p. 798 (4 Ed., 1971). It is also a departure from the Florida rule. See Miami Herald Publishing Company v. Brautigam, Fla.App., 1961, 127 So.2d 718.

The language used in Garrison was as follows:

“AVe held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true.” 379 U.S. at p. 74, 85 S.Ct. at 215.

This can be read as permitting the presumption of falsity from a defamatory statement where the issue is reckless disregard as distinguished from an allegation of actual knowledge of falsity. Indeed, it is difficult to imagine how actual knowledge of falsity could be established without pi'oof of falsity, thus explaining the use of the language in Garrison. However, it may be argued that where plaintiff relies on proof of reckless disregard for truth, no proof of actual falsity is necessarily implicit in jdaintiff’s case. Stated differently, in such a case, proof of falsity is not a logical prerequisite.

The view that Garrison does not intend to abrogate state law by requiring a plaintiff to prove falsity is reinforced by looking to the origin of the quote in New York Times v. Sullivan, supra, 376 U.S. at 279-280, 84 S.Ct. 710. The court does not there or in later cases appear to deal with the question of proving falsity, but rather with what degree of awareness and proof thereof will excuse the publication of a falsity. Absent specific derogation of the state law should be preserved except where in direct conflict with the rule fashioned by the Supreme Court.

However, this narrow reading of the Garrison language should be rejected. Such would hardly comport with the other broad safeguards created in New York Times and its progeny to vouchsafe freedom of the press.

2 . The language “convincing clarity” in New York Times, 376 U.S. at 285-286, 84 S.Ct. 710, was transposed into “clear and convincing” in Metromedia, 403 U.S. at 30, 91 S.Ct. 1811.

3 . “TWO-WAY SNOOP. In Florida, where electronic eavesdropping is frequently employed in divorce suits, private eyes like Jack Harwood of Palm Beach, shown above with some of his gear, do a thriving business. Harwood, who boasts, ‘I’m a fantastic wire man,’ was hired by the tire heir Russell Firestone to keep tabs on Ills estranged wife, Mary Alice. She in turn got one of Harwood’s assistants to sell out and work for her and, says Harwood, ‘He plays just as rough with the bugs as I do.’ A court recently ordered Russell and Mary Alice to stop spying on each other.”