U.S. SUPREME COURT REPORTS 80 L Ed 2d (Bose Corporation v. Consumers Union of United States)

    U.S. SUPREME COI'RT REPORTS 80 L Fd'2d

BOSE CORPORATION, Petitioner

v
CONSUI\{ERS UNION OF UNTTED STATES, INC.

- us -, 80 L Ed 2d 502,104 S Ct _
tNo.82-1246)

Argued November 8, 1988. Decided ApriJ 80, 19g4.

Decision: "Actual malice" determinations in defamation suits held subject
to de novo review.

SLMMAR}'

- In a product disparagement suit brought by a stereo loudspeaker manu-
f3ctq:er against a magazine publisher, trre unitea states District court for
the District of Massachusetts held that the manufacturer was a public
figure within the me-aning of the rure precluding recovery unless the
manufactu-rer proved by clear and convincing evide"nce that ihe publisher
made a false and disparaging statement with actual maligs, but entered aju'lgrnent for the lmanufacturer on the ground that it rr.i 1*t i"ed its
burdln of proof (508 F supp 1249). The united states court of Appeals forthe First circuit ieversed, holding that its review of the ..act,,ir-malice,,
determination wac not limited to tt " crearly erroneous 

"t""aara 
; R;i"

52(d of the Federal Rules of civil procedure,-but that it must perform a de
novo review to determine whether there was clear and convincing evidence
of actual malice (692.F2d 189).

^ on certiorari, the united states supreme court affirmed. In an opinion by
srrvrNs, 

-J. expressing the views of Bn,vNeN, M.e,s,er,r, Br.lcxr,rr-rN, ani
P-owg1 J.J., it was held that the clearly erroneous sr^ndard of Rule ld<a) ofthe Federal Rules of civil Proced,r.e does not prescribe the standard of
r-eview to be applied in reviewing a determination of actual malice underthe constitutional ru-le prohibiting a public ofrciar or public figure from
recovering damages for a defamatory ?ahehood unless h" p.oro that the
statement u'as made with actuar malice; that appellate judges in such a case
mttst_ exercise independent judgment and determine 

-q-hether 
the record

establishes actual malice wiitr convincing clarity; and that the record did
502

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80 L Ed'2d

ES, INC.

.

J0, 1984.

;on suits held subject

o loudspeaker manu
tes District Court for
.cturer -vas a public \
recovery unless the

ce that the publisher
malice, but entered a -

it had sustained its
Court of Appeals for

I the "actual malice"
ous standard of Rule ^',t
it must perform a de C

med. In an opinion by
HALL, BLACKITUN, ANd
indard of Rule 52(a) of
:ribe the standard of
f actual malice under
:r public figure from
ss he proves that the
judges in such a case
whether the record

I that the record did

G

BOSE CORP. v CONSIIN{ERS U\-ION OF U.S., INC.
80 L Ed 2d ti02

not contain clear and convincirag evidence that the publisher or its r*riter
was guilty of actual malice.

BuncrR, Ch. J., concurred in the judgmt'nt.

Wxlrr, J., dissented on the g;rounds that the question r+'hether the
defamatory statement u'as u'ritten r+'ith ac'tual knorlledge of its falsit-r' was a
question of historical fact not subject to de novo revie'*'.

RsHNeursr, J., joined by O'Coxxon, J., dissented on the ground that the
"clearly erroneous" standard of Rule 52(at applies to actual malice determi-
nations, which involve no more than findings about the mens rea of an
author.

HF-ADNOT[Xi

Classi-fied to U.S. Supreme Court p;-.61. larrl'ers'Edition

Appeal and Eror $ f477 -findings - malice
fact- stitutional rule prohibiting a public

1a, 1b. The clearly erroneous stan-
dard of Rule 52(a) of the Federal
Rules of Civil Procedure does not
prescribe the standard of rerieq' to
be applied in revieu'ing a determina-
tion of actual malice under the con-

TOTAL CLTENT.SER\IICE LIB}IARY B RMERENCES

5 Am Jur 2d, Appeal and Error S 831; 32 Am Jur 2d, Federal
Practice and Procedure $ 363

2 Federal Procedure, L Ed, Appeal, Certiorari, and Review
,-$ 3:649 '
USCS, Court Rules, Federal Rules of Civil Procedure, Rule 52
US L Ed Digest, Appeal a:rd Error S 1477

L &l Index to Annos, Appeal and Error
ALR Quick Index, Appeal and Error
Federal Quick Index, Appeal and Error
Auto-Citc€: Any case citation herein can be checked.for

form, parallel references, later history and annotation ref-
erences through the Auto{ite computer research system.

ANNOTATION REFERENCES

Application of "purely erroneous" test of Rule 52(a) of Federal Rules of
Civil Procedure to trial court's findings of fact based on documentary
evidence. 11 ALR Fed 212.

official or public figure from recover-
ing damages for a defamatory false-
hood unless he proves that the state-
ment 'A'as macie q'ith actual malice;
rather, appellate judges in such a
case must exercise independent judg-
ment and determine u'hether the



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U.S. SUPREME COURT REPORTS 80LEd2d

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record establishes actual malice w"ith
convincing clarity. (\4'hit€, Rehn-
quist, arrd O'Connor, J.J., dissented
from this holding.)

Courts S 352 - applicable la*' -product disparagement
2a, 2b.In a suit in Federal District

Court sirting in IMassachusetts by a
Delavrare corporation u'ith its princi-
pal place of business in Massachu-
setts against a }{eu' York not-for-
profit corporation having its princi-
pal place of business in New York, a
product disparagernent claim is gov-
erned by the law of New York and
Massachusetis u'hen vie*,ed bv the
parties as in accord in this area.

Constitutional Lar*' S 948 - pubtic
figure - defamation - media
defendant

3a, 3b. A corporation's publication
of a product-evaluation magazine
qualifies it as a "media" defendant
under the constitutional rule prohib-
iting a public official or public figure
from recovering damages for a de-
famatory falsehood unless he proves
that the statemenr was made r+'ith
actual malice.

Appeal and Error S t4Z? - facts

- knowlcdge
4. What a person knew at a given

point in time is a question of fact
within the meaning of the provision
in Rule SZa) of the Federal Rules of
Civil Procedure that factfindings
shall not be set aside unless clearly
erroneous,

Appeal and Error S 14b2 : re-
cords - free speech

5. The constitutional principle
that an appellate court has an o6li-
gation to make an independent ex-
amination of the s'hole record in
order to make sure that the judg-
ment does not constitute a forbidden
504

intrusion on the 6eld of free expres-
sion applies equally to state and
federal litigation.

Appeal and Error S l4g - find-
ings - documents - oral tes-
timony

6. While the "clearh' erroneous,'
standard of Rule S}ta of the Federal
Rules of Civil Procedure applies to
findings based on documeniiry evi-
dence as v,ell as to those basid en-
tirely on oral testimony, the pre.
sumption h?" less force in the for-
mer situation than in the latter.

Appeal and Error S f464 - find-
ings - length of trial

7. While the "clearly erroneous',
standard of Rule 52(a) of the Federal
Rules of Civil Procedure does not
change as the trial becomes longer
and more complex, the likelihood
that the appellate court vrill rely on
the presumption tends to increase
u'hen the trial judges have lived
u'ith the controvers5' for u'eeks or
months instead of just a few hours.

APpeal end Error S 1453 - find.
ings - conclusiveness

8a, 8b. The conclusiveness of a
firrdirrg of fact depends on the nature
of the materials on s-hich the find-
ing is based.

Appeal and Error $ 1464 - fact-
fuldings

9. Rule 52(il of the Federal Rules
of Civil Procedure applies to findings
of fact, including those described as
"ultimate facts" because they may
determine the outcome of litigation,
but it does not inhibit an appellate
court's power to correct errors of
law, including those that may infect
a so-called mixed finding of law and
fact, or a finding of fact that is pred-
icated on a misunderstanding of the
governing rule of law.

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:ld of free expres-
lly to state and

r $1464 - find-
rents oral tes-

'earl1' erroneous"
l,a) of the Federal
:edure applies to
documentary evi-
r those based en-
timony, the pre-
force in the for-
in the latter.

r$I4&l-find-
of trial
early erroneous"

lia) of the Federal
.,cedure does not
I becomes longer
t, the likelihood
.'ourt u'ill rely on
ends to increase
.dges have lived
-sy for u'eeks or
ust a fen,hours.

r $1453 - find-
:siveness
rclusiveness of a
nds on the nature
n which the find-

rr $1464 - fact-

rhe Federal Rules
applies to findings
.hose described as
,ecause they may
- ome of litigation,
:ribit an appellate
correct errors of
-e that may infect
.nding of lau' and
fact that is pred-
erstanding of the

BOSE CORP. v CONSUMERS UNrON OF U.S.. INC
80 L Ed 2d 502

{

frial g 42 - questions of larr and
fact

10a, 10b. The line between find_
ings of fact and cotrclusions of law
varies according to the nature of the
substantive law at issue, but at some
point the reasoning by u.hich a fact
is found crosses the line between
application of those ordinary princi-
ples of logic and common e*pe.ien"e
which are ordinarily entrusted to
the finder of fact into the realm of a
legal rule upon which the reviewing
court must exercise its oll'n indepen_
dent judgment; regarding ce.-tain
largely factual questions in some
areas of the law, the stakes-in
terms of impact on future cases and
future conduct-are too great to en-
trust them finally to the judgrnent of
the trier of fact.

Constitutional Laq' g g2E 
- free

speech-false ideas
11. Under the First Amendment

there is no such thing as a false
idea; however pernicious an opinion
may seem, its correction depends not
on the conscience of judgel and ju-
ries but on the competition of otlier
ideas.

Appeal and Error S f464 
- facts

- constitutional questions
72a, l2b. The United States Su_

preme Court has an obligation to
test challenged judgments against
the First and Fourteenth Amend-
ments and in doing so cannot avoid
making an independent constitu-
tional judgment on the facts of the
case.

Appeal and Error g f464 - consti-
tutional fact

13a, 13b. First Amendment ques-
tions of constitutional fact compel
the United States Supreme Court's
de novo revieu'.

Appeal and Error $ f464 - fact-
findings

14a, 14b. The limitation on appel-
lat.e revievr of factual determinaiions
under Rule 52tat of the Federal
Rules of Civil Procedure is no more
stringent than the limitation on fed_
eral appellate revielr' of a jury's fac-
tual determinatior** undei the Sev-
enth Amendment.

Appeal and Emor S f47Z - defa-
mation - actual malice

15. The question whether the evi-
dence in the record in a defamation
case is of the conrincing clarity re.
quired to strip the utterance of First
Amendment protection is not merely
a question for the trier of faci;
judges, as expositors of the Constitu-
tion, must independently decide
q,hether the evidence in the record
is sufficient to cross the constitu-
tional threshold that bars the entrv
of any judgment that Ls not sup
ported b1'clear and convincing proof
of "actual malice."

Constitutional Las' $ gr18 
- free

speech - malice
16a, 16b. The burden of proving

"actual malice" in a defamati-on case
requires the plaintif to demonstrate
with clear and convincing er-idence
that the defendant realized that his
statement was false or that he sub-
jectively entertained serious doubt
as to the truth of his statement.

Evidence S 872 - d;scredited tes.
timony - opposite conclusion

17. When the testimony of a nit-
ness is not believed, the trier of fact
may simply disregard it, but nor-
mally the discredited testimony is
not considered a suffcient basis for
drauing a contrary conclusion.
Constitutional Las- $ 942 - free

speech - malapropism
18. The choice of one of a number

505

0



of possible rational interpretations
of an event that bristles q'ith
ambiguities and descriptive chal-
lenges for the writer, even if reflect-
ing a misconception, does not place
the speech be1'ond the outer limit-s of
the First AmenCment's broad protec-
tive umbrella; otheru'ise, anf indi-
vidual using a malapropism might
be liable, simply' because an intelli-
gent speaker s'ould have to knos'
that the term s'as inaccurate in con-
text, even though he did not realize
his foll-v at the time.

Constitutional Law $ 947 - free
speech erroneous state-
ments

19. Erroneou-s statement is inevita-
ble in free debate, and must be pro.
tected if the freedoms of expression
are to have the breathing space that
they need to sunive.

Constitutional Law $ 947 - free
speech - product rlisparage.
ment

20. \4rtrether or not the rule re-
quiring a shoui.:rg of actual malice

Respondent published an article in
its malazine evaluating the quality
of numerous brands of loudspeaker
systems, including one marketed by
petitioner- Petitioner objected .to

statements in the article about its
system, including one to the effect
that the sound of individual musical
instruments tended to wander
"about the room." \4tten respondent
refused to publish a retraction, peti-
tioner fi.led a product disparagment
action in Federal District Courb. The
court ruled that petitioner was a
"public figure" and that therefore,
pursuant to the First Amendment as
interpreted in Nes' York Times Crc.

506

ST'LI.ABUS BY REPORTM. OF DECISIONS

U.S. SI]PRE\{E COURT REPORTS 80LEd2d

in a defamation case applies to a
claim of product disparagement
based on a critical revie*'of a stereo
loudspeaker s)'stem, the difference
between hearing violin sounds move
around the room and hearing them
q'ander back and forth fit-. easily
vrithin the breathing space that
gives life to the First Amendment.

Appeal and Error S 1477 - fac-
tual revies' - defamation

27a, 2lb. In a defamation case
implicating the constitutional rule
that damages are not recoverable by
a public official or public figure for a
defamatory falsehood rx'ithout clear
and convincing evidence of actual
malice, it is not actually necessary
to revieq, the entire record to fulfill
the function of independent appel-
late review on the actual malice
question; rather, only those portions
of the record u'hich relate to the
actual malice determination must be
independently assessed, and the in-
dependent review function is not
equivalent to a de novo review of the
ultimate judgment itself.

v Sullivan, 376 US 254, 11 L Ed %l
686, 84 S Ct 710, 95 AIR2d 7412, ta
.recover petitioner must prove by
clear and convincing evidence that
respondent made a false disparaging
statement u'ith "actual 6aligs." Bn-
tering judgment for petitioner, the
court found, based primarily on the
testimony of the article's author (re
spondent's employee), that the arti-
cle eontained a false statement of
"fact," because the sound of instru-
ments heard through the speakere
tended to wander "along the wall"
between the speakers, rather than
"about the room" as reported by
respondent; that the author's testi-

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e applies to a
disparagement
'ieu' of a stereo
the difference
n sounds move
hearing them

rth fits easil-v
.C space that
-{mendment.

S 1477 - fac-
efamation
:famation case
-'.itutional rule
recoverable by

rlic flgure for a
u'ithout clear

ence of actual
:ally necessary
record to fulfill
pendent appel-
actual malice
those portions
relate to the

.nation must be
ed, and the in-
.rnction is not
i'o review of the
:elf.

t54, 11 L Ed 2d
ALR2d L412, tn
must prove by
g evidence that
alse disparaging
ral malice." En-

petitioner, the
,rimarily on the
,cle's author (re-
), that the arti-
se statement of
sound of instru-
--h the speakers
along the wall"
rs, rather than
as reported by

author's testi-

mony that the challenged statenrent
rras intended to mean "along the
u'all" was not credible; and that the
statement *'as disparaging. On the
basis of s'hat it considered to be
clear and convincing proc,f, the court
concluded that petitioner had sus-
tained its burden of proving that
respondent had publisheC the false
statement q'ith knou'ledge that it
u'as false or u'ith reckless disregard
of its truth or falsit-r'. The Court of
Appeals reversed, holding that its
revier.r' of the "actual malice" derer-
mination q'as not Iimited to the
"clearly erroneous" standard of Fed-
eral Rule of Civil Procedure 52tal
u'hich pror-ides that "[!indings of
fact shall not be set aside unless
clearly erroneous, and due regard
shall be given to the opportunity of
the trial court to judge of the credi-
bilitv of the q'itnesses"-and that it
must perform a de novo revies'. in-
dependentl-v examining the record to
ensure that the District Court had
applied properly the governing ccn-
stitutional rule. Based on its review
of the record, the Court of Appeals
concluded that petitioner had not
sustained its burden of proof.

Held:
1. The clearly-erroneous standard

of Rule 52a) does not prescribe the
standard of review to be applied in
reviewing a determination of actual
malice in a case governed by New
York Times Crc. v Sullivan. Appel-
late judges in such a ca-re must exer-
cise independent judgment and de.
termine whether the record estab.
lishes actual malice with convincing
clarity.

(a) In cases raising First Amend-
ment issues, an appellate court has
an obligation to make an indepen-
dent examination of the whole rec-
ord to ensure that the jud5ment does
not constitute a forbidden intrusion

,.: .: ..,-;..,..:$j.{d|

on the field of free expression. Hos.
ever, the standard of ret'ievr must be
faithful to both Rule 52rar and the
Neu' York Times rule of indepen-
dent rerieg', the conflict betrleen the
ts'<l rules being in some re:pects
more apparent thaa real. For in-
stance, Rule 52(a) does not forbid an
examination of the entire record,
and the constitutionally ba-sed rule
of independent resie\,r' permit-. giv-
ing "due regard" to the trial judge's
opportunitl' to judge s'itnesses' cred-
ibilitl', as provided b1-Rule 52rar.

,b) Rule 52ta) applies to findings of
fact, but does not inhibit an appel-
lafe court's po\4'er to correct erTors
of laq,, including those that may
infect a so-called mixed finding of
Iaq and fact. In a consideration of
the possible application of Rule
52i a)'s distinction betu'een questior*x
of la'x' and fact to the issue of "ac-
tual malice," three characteristics of
the Neu' York Times rule are rele.
vant: (1) the common-law heritage of
the rule, (2) the fact that its cont€nt
is given meaning through case.by-
case adjudication, a-nd (3) the fact
that the constitutional values pro
tected by it make it imperative that
judges make sure that it is correcrly
applied.

(c) The requirement of indepen-
dent appellate review enunr:iated in
New York fimes reflects a deeply
held conviction that judges-particu-
larly Members of this Court-must
exercise such revies in order to pre.
serve precious constituti<lnal liber-
ties. Under New York Times, the
question u'hether the evidence in the
rercord in a defamation case is of the
cc,nvincing clarity required to strip
the utterance of Fi.rst Amendment
protection is ultimately a question of
federal constitutional law.

2. The Court of Appeals correctly
concluded that there is a significant

507

BOSE CORP. v CONSUMER-S UNION OF U.S.,INC.
60 L Ed 2d 512

{

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U.S. SUPREME COURT REPORTS 80LEd2d

r{

di-fference between proof of actualmalice and mere proof of f.f"iti, ."fthat, the. requisite 
"dditi;;"1'-'p;;;;was lacking in this 
"""u. ff,u L.tl-mony' of the arricle's author JiJ ""iconstitute clear and .o"uin.inf 

""I-dence of actual malice. ff,e faci tfraihe attempted to rationait; ;; mil:
tk" * to the article,s ,." 

- 

rf ii"phr1g 
-"about the room', ao". ,roiestablish that he realized th;l;;;:

13"I ,t the time of publicatior. i;cn:)lce.ot' the language used, thoushreflectlng a misconception, did n"ot

I1"9: ,hg speech beylnd the ourerrrmlts ol the First Amendment,s
broad protective umbreff.. er"n 

-"cl
cepting all of rhe District C";r;L

[1a] Justice Stevens delivered theopinion of the Court.
An unusual metaphor ia a criticalreview of an unusr.l mra.p"l?.

system gave rise to product disi-;-
-agement 

litigation tliat presenfs*twrth a procedura) question of nrstimpression: Does Rule S-Ztrl ,f -"tfr"Federal-Rules of Civi.l p.";;; ;;;scribe the standard e b";OOIt;j;;

ll;irJf s#{"flr,iliT##i
3________________.faJse^s.!ateme-ntwasmaae*ilt-iil'e
S"o 9j "actual malice', described inNew York Times v Sullivan, 316 G
?14:-?7\280, 11 L Ed 2d 6',d;;r4"5Lt 710, 95 ALR2d L4t2 (lgu)i

purely factual findings, nevertheless,
ac.a matter of law, the record ddnot contain clear and convincing-e-r{
dence that respondent o, it"'"rn-
l,o) T -prepared the article u.ithroou'ledge that it contained a falsestatement, or n.ith reckless di.;";;;;
of the truth.

692 Fzd 189. affirmed.

-Stevens, J., deUvered the opinionof the Court, in "hi.t B#;;:I\{arshall, BIackmun, and pou,ell.
JJ., joined. Burger, C. J., ;"*;;;;;rn r.he judgment. White, J., 6led a
9lyr,,ig opinion. n"frrqri"i-"ll
l1e_o a drssenting opinion, in u.hich
O'Crcnnor, J., joinld.'

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APPEARANCES OF COUNISEL
C_harles Hieken argued the cause for petitioner.ItIi cha et N. porr et ;.c" 

"J 
;;;."" iofl[o., o 

"n,OPNiION OF TIIE COURT

. In the May 1970 issue of its maga_
A, "Co*umer ,Repo.tr,,, .".fri-

dent published a seven_page articleeval'rating the quality 
"?;il;;;;;::aS of medium priced loudspeak_

ers. ln a boxed_off section occupltngmos! of two,,pages, respondent' iomlmenl€g on ..some Ioudspeakers of
:p".i"I* interest,', one of 

",fri.f, ".*Lne Uose 901_an admittedlv
"unique and ro"oouu.rtio;;; :;,rr.Hthat,had recently been placed;;;;
mark€t by petitioner.r After describ_mg the system and some of its vir_tues, and after noting that a lirt";;;
courct prnpoint the location of vari_ous instruments much -o."- ""iiiwith a standard .p"rtu.-it "r;;ilEne Sose 6y6tem,,, respondent,s arti-

cle made the following statements:
' "Iilorse, inditidual instruments

2. tb)
uct dispe..
sitl' of c
USCS $ r;
Massachu
accord in
disparagpr
17. The I
applicable
of prorin5
dence, tla
and disp:
establishin
cover. Id_
product di
leged clair
violation oi
[15 UScs t
neither of r
F Supp. ar _

. 3. Petitior
coDt€ntioc
ri.ug to tr,
creating &
Ioudspeater
subjective
Court agrea
it ruled that
relief. 5O8 I
also argrred
the Bose 9O
b_r' the revie
this claim. cl

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o*ia.*-*f*fl[
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,d"il".-.Hi;:-r:1i""""'"f HiTj'ff ',#unconventional nature 
"f th" .6;;;;ac:ttvely solicited rerieu.s in numerous publica_

508

li-ons 
therebf inviting critical evaluation aadcomment on the unique qualities of the J-tem. 808 F Supp tze, 12?i CD M;ld;i,--'-



80LEd2d

. nevertheless,

.e record does
cnvincing evi-
r or its em-
articie' rn'ith

:ained a false
:less disregard

d.
.d the opinion
,ich Brennan,

and Pos'ell,
J., concurred

ite, J., filed a
Rehnquist, J., (
rion, in u'hich

en-page article
:v of numerous
iced loudsPeak-

.ction occuPYing
espondent com-
.oudspeakers of
e of q'hich was
.n admittedlY
:ntional" sYstem
en placed on the
:'.t Afber describ-
some of its vir-
s that a listener
iocation of vari-
.ich more easilY
eaker than with
'espondent's arti-
rg statements:

.ual ilstruments

tic:l evaluation and
qualities of the sYs'
-3 (D lUass 1981).

:. -; :ir.-'r.;.: r.li . ..ia*.- :i.*,i.f,*

'i

t.
BOSE CORP. v CONSUMERS UNION OF LI'S'' INC'
, 80 Lil 2d 502

heard through the Bose sYstem

seemed to grou' to gigantic propor-

tion*. a.,d Gnded to g'ander about
the room. For instance, a violin
upp"u.ua to be 10 feet u'ide and a

oiano stretched from lr'all to wall'
iVith orchestral music, such effects

seemed inconsequential But we

think theY might become annoy-

i"e "'t,"n listening to soloists'"
Pt"aintiffs Exhibit 2' at 274'

After stating opinions concerning
it"-r""tutt tJrrrd quality, the article
concluded: "We think the Bose sYs-

i"r" i. so unusual that a prospective

iuil"r *,rt, listen to it and judge it
i#f,imsetf. We would suggest delay-

i.,g ,o big an investment until You
*"-r" trt6 the sYstem would Please

;;- aft€t the noveltY value had

worn off." Id-, at 275.

[2a] Pr:titioner took exception .to
ora.r"ro,.,= statements made in the

"Ji.t", 
and when respondent refused

to publish a retraction, petitioner
cornmenced this product disparage'
ment action in the United States

District C,ourt for the District of
ntuitu.t 

"""tts.'z 
After a protracted

oeriod of pretrial discoverl , the Dis-

irict Court denied respondent's mo
tion for summar]' judgment' 84 t'RL)

OAi tlgsol, and-conducted a 19daY

Ue"ci, trial on the issue of liability'
In its lengthY, detailed oPiniol on

tt " ^"tit"'of 
th" case, 508 F SuPq

fZag tfSAU, the District Court ruled
in respondent's favor on most is-

.rr"t.' tUo=t signifi cantll', the District
Court ruled that the petitioner is a

t.
.t

.I

ri
,'i. I

2. lzb) Federal jurisdiction over the prod'

,r.i-a'i-"pr'.ug"rnent claim u'a-' based on diver-

;i-;-i;i&*hip' 26 USC $r332'ar'lt [28

USCS S 1332,ax1rl. The lau of Neq' York ano

fJl**Jf,"*,o. riewed by the parties a-' in

acco.d ln this area, governed the prod-uct

il"rri^*"to"n, claim Sb8 F Supp' at 1259. n

ii'in"' oi"uct Court held that under the

"ppficaUte 
stat"e law, plaintif had the burden

II"t*i"*' bv a prePonderance of the eri-

i".r'"* t-r,"'i th"e staLments in issue were false-

;;-;";;t.ci"g, and also had the burden of
oGUtiri,i"g-"ctual dam'gls i"..9S"t b 

.1e.
corer. Id., at 1259-1260 In addition to tne

or"ar.i-ii,"p"."gement claim, petitioner 
. 
al-

i&J-.f"i.. foi unfair competitio-n- and 
^aiili"ti* "f 

the l,anham Act' 15 USC S lr2l
ii;-uscs S I1211. The District courl held that
'""ittru.ofinot"-claims had been proven 508

F Supp, at1277.

. 3. Petitioner's attack on the article included

"ont"ntiott. 
that it n'as misleading in refe.r-

ring to two persons as a "panel" ?nd A
c."-ating the impression that evaluatlons oI

iouL*"uf."t qur.fity .t" objective rather than

subiective judgments. \l'hile the l)lstrlct
A;;'r+; i'ith petitioner on the6e points'

it-^t"a"tlrt they did not entitle petitioner to

r"fi"i. 5OS F Supp' at 12€0-1262 Petitioner-

"i.o 
utsu"d that'ihe overall sound qualitl'of

ai" Sol 9Or should have been rated higher
i'*l ti-" 

-i.,''i""'"rs. 
The District Cou rt rejected

tfiis cl.im. obsen'ing that all of the testimonl''

inc)udrng that of Dr. Bose' revealed that the

""^j"utiI" 
of a speaker's "sound qualitl"' or

ir""ri"lt" is a "subjective matter.'' and

hence in the final anallsis is "nothing more

ih;; ; opinion and, a-' such' it cannot-be

".""J to L t-" or false " ld', at 1262 The

I.r" .ft" found that petitioner had failed to

p-r" futse a stat€ment recommending use of

lr, ,mPtifi"t of 50 warts Per channel to

".ii"""'ir," 
"deepest" bass response with the

;;;i"r=, obsening that the parties had^ con-

""a"a 
ttrt the power requirements of the

""".f."". 
were readily and objectively ascer-

e;Ji" Id.' at 1263-1264' The court also

f""rJlf,", Petitioner had failed to prove that

il;;; primarilv responsible for the arti'
;1" ;* biased by reason of his financial inter-

Ii li "r"nru.ily 
marketing a speaker 

. 
on

"'iri.f-,--- 
fr. had obtained a Patent On the other

i-r."J. il" District Court rejected respondent's

arsument that there could be no actual mal-

i""';;; respondent had no motive to dis'

;l;" facts; the District Court identified two

;ibi; reasons for the disparagement' ftst'
ii," 

-;*", 
proof' that respondent irad a

'U"if,-i" bias" against "higher priced prod-

ucts" and second, a suggestion in.the testi-

monl that respondent resort'ed to "sarcasm

;-';;*i circuiation. Id.' at 12?5-1276' The

Di.r.i"t Court did not, however' rely upon

af,"."- p".= iUf 
" 

m ot ivat i ons as afr rmative proof

of actual malice. See id'' al l27|l2i7 '

509

t-



'i'f{::'.i, -dil

U.S. SIIPREME COURT REPORTS 80LEd2d

!
1
r{

rl

tl"public figure" as that term is de.
fined in Gertz v Robert Welsh, Inc.,
118 US 323,342,345, 351_352, 4t L
Ed 2d 789,94 S Ct 2992 (1924) for
purposes of this case and therefore
the First Amendment, as interpreted
in New York Times v Sullivan. su-
pra, 376 US, at 279-ZBO,11 L Ed 2d
686, 84 S Ct 710, 95 ALR?| 7412,
precludes recovery in this product
disparagement action unless ite pe-
titioner proved by clear and convinc-
ing et'idence that respondent made a
false disparaging statement with
"actual malice."

- 01 three critical points, hox'ever,
the District Court agreed u'ith peti-
tioner. First, it found that one ie.r-
tence in the article contained a

"false" statement of "fact,' concern-
ing the tendency of the instruments
to wander.. Based primarily on testi-
ryony by the author of the article,
the District Court found that instru-
ments heard through the speakers
tended to '*'ander "along the s-all,,,
rather than "about the room', as
ryported by respondent.s Second, it
found that the statement u.as dispar-
aging. Third, it concluded ,,on the
basis of proof vvhich it cor**iders
clear and convincing. that the plain-
tifl has sustained its burden of prov-
ing that the defendant publistied a
false statement of material fact q-ith
knowledge that it u'as false or rnith
reckless disregard of its truth or
falsity." 508 F Supp, at 1277.6 Judg-

EI
tI

t

A'
YE

co
oo
lD,
Fi '
Bi
ax'
t's

OD

to
s-I
19
no
WE

4. In its ruling on respondent's motion for
summarJr' judgment, the District Court had
held -that the question whether respondent,s
panelisls "actually heard instruments gTow to
gigantic proportions or q'ander about the
room is a question of fact, not opinion. , . .',
84 F?D, at 684. In support of thi motion for
summary judgment, respondent had submit-
ted an affidarit by one of the panelists, Ar_
nold Seligson, stating that the-article accu-
rately reported what was heard in the tests
and "I know what I heard,', while petitioner
had submitted an affidavit by Dr. Bose, -u,ho
d-esig:ned the Bose 901, staflng in substance
that "the phenomenom of *-idened and wan-
dering instruments . . is a scientifc inpossi-
bility." Ibid.

5. Although at one point the District Court
seemed to suggest that the instruments, i. e.
the sound, did not *'ander at all, relling on a
review in another publication sfairng tfrat
"each instrument has its prescrifi 

"pr.*__and it stays there," bO8 F Supp, a[ 1ZOS
(emphasis supplied by the Distriii Court) (ci-
tation omitted), the District Court had previ_
ously stated that some degree of .,movement,'
of-sound between loudspeakers is common to
all systems and its discleqion of liability indi-
cates that-respondent could have truihfully
reported that the sound tended to rander
"along the wall," or at least .,seemed" to
wa-nder along the wall. It is not entirelv clear
that the District Court made a finding;tfa;
as such regarding.n'here the sound tended to

5r0

wander. Indeed, it is not entirely clear that he
found as a fact that the sound did not *-ander
about the room. Rather, as discussed more
extensivelf infra, at 

-, 
80 L Ed %. 

-,
the finding seemed to be that the ..panel,;
conducting the test did not subjectiveil, per-
ceive the sound to be u'andering ..about itre
room," but rather perceived it to be q,ander_
ing "across the room." Just u'here the sound
did "*'ander," in realit.r', did not appear to be
the focus of the decision, though ih".e o.as
conficting t€stimony concerning whether itq'as "scientificall.v impossible" for sound toq,ander "about" the room, or to ..seem" to
s'alder "about" the room. Se€ SO8 F Supp, at
1%7-7269, t276-r277.

. G In its ruling on the motion for sqmm,ry
judgment, the District Court assumed- s-ith-
out deciding. that the actual malice standard
would be applicable in the case and expressty
recognized that falsity alone does not provi
that stat€ments were made s'ith actual mal-
ice, observing that additional facts are re-
quired, and that there must be clear and
convincing evidence on this question. 84 F?D,
at 684-685. In holding that there was a Eate-
rial issue of "fact" (a label we use advisedly)
on actual malice, the District Court recounted
petitioner's argument that the panelists must
bave known the statements concerning en-
larged and wandering instruments were-false
because_ they n'ere false, ibid. ("[A]ccording to
plaintitr, the panel could not have heard these
phenomena and the statement that thev did

G'

lr-v

tb'
rgr

,Ei
cle
52i
pei
der
au
Pli
Urt
ha

h€a
@D
d
lno
Tb€
Cln(
ryEt
CE
tbat
(Et
--t -

{[ I
rhrr
inr
,'!qt
ca8!
tin
ircc
Jud-

: *' ::aj-.- -,. ;,,
.u..r=-**ii{i

u :61ElF,ffi



- 1. :: ..+: i,.- :'.,:i:.,;.r;;i$;ifl
f.

',n*

\s

80LEd2d

rf "fact" concern-
the instruments

rimarily on testi-
-,r of the article,
:rund that instru-
gh the speakers
along the wall,"
t the room" as
Cent.3 Second, it
ment was dispar-
rcluded "on the
ich it considers
;, that the plain-
, burden of prov-
.ant published a
aterial fact *-ith
as false or u'ith
of its truth or
. at 7277.6 Judg-

,ntirely clear that he
rund did not u.ander

as discussed more_.80LEd2d_,
,e that the "panel,'
rot subjectively per-
,ndering "about the
', ed it to be r*'ander-
rst where the sound
did not app€ar to be
;. though there was
rcerning r*'herher it
-sible" for sound to
:n, or to "seem" to

Se€ 508 F Supp, at

motion for summary
ourt assumed, n'ith-
:ual malice standard
e case and expressly
lone does not prove
de q'ith actual mal- .

:ional facts are re.
must be clear and
.is question. 84 FRD,
rt there was a mate.
.-l we use advisedly)
rict Court recounted
l the panelists must
nts concerning en-
:ruments were false
',id ("[A]ccording to
't have heard these
r)ent thar the-v did

BOSE CORP. v CONSUI\{ERS UNION OF U.S., n\rc.
80 L Ed 2d 502

{

ment was entered for petitioner on
the product disparagement claim.?

[3a] The United Stales Court of
Appeals for the First Circuit re-
versd. 692 F2d 169 (1982). The
court accepted the findlng that the
comment about n'andering instru-
ments u'as disparaging. It assumed,
u'ithout deciding, that ttre statement
was one of fact, rather than opinion,
and that it s'as false, obsen'ing that
"stemming at leasl i.u parr from the
uncertain nature of the statement a-q

one of fact or opinion, it is difficult
to determine with confidence
u'hether it is true or false." Id., at
194. After noting that petitioner did
not contest the conclusion that it
was a public figure, or the applicabil-
ity of the Neu' York Times standard,
the Court of Apped. held that its
revie\tr of the "actual malic:e" deter-
mination was not "Iimited" to the
clearl-r' erroneous standard of Rule
52(a); instead, it stated ttrat it ..must
perform a de novo review, indepen-
dently examining the record to en-
sure that the district court has ap
plied properly the governing consti-
tutional law and that the plaintiff
has indeed satisfied its buiden of

proof." Id., at 195. It added, hou'ever,
that it "was in no position to con-
sider the credibility of u-itnesses and
must leave such questions of de-
meanor to the trier of fact." Ibid.
Based on its oq'n revieg. of the rec-
ord, the Court ofAppeals concluded:

"[47]e are unable to find clear and
convincing evidence that CU pub-
lished the statement that indiyid-
ual instruments tended to wander
about the room u-ith knouledge
;hat it $'as false or u'itir reckleis
disregard of q'hether it u'as false
or not. The evidence presented
merely shorn's that the 'a-ords in
the article ma)'not have described
precisely *'hat the tu o panelists
heard during the listening test.
CU q'as guilty of using imprecise
Janguage in the article-perhaps
resulting from an attempt to pro-
duce a readable article for its
mass audience. Certainly this does
not support an inference of actual
malice." Id., at 197.s

We granted certiorari to consider
u'hether the Court of Appeals erred
u'hen it refused to apply the clearly
erroneous standard of Rule 52(a) to
the District Court's "finding" of ac-

{
hear them *'as false. The plaintiff further
contends that because Seligson was a member
of the ll<tening panel . - . he must have
knou'n that the stat€ment wa-s ialse. . . .").
The court also noted petitioner! evidence
concerning-Seligison's par€nt oD a spea.ker
system, and indulging in a.ll reasonable infer-
ences fauorable to the plaintiff, concluded
that a genuine issue of m"terial fact existed
on the question ofactual melise. td., s1 6g6.

-7..A separate trial before a different judge
o.n th9 issug of damages resulteC in a finding
that the false disparagiDg sratement resultea
in a slgs loss of 824 u.nits, each of s.hich
r+ould have produced a net profit of $129.
causing petitioner damages of1106,296 peti-
tioner al.so s'as aq-arded S9,0O0 for expenses
incurred in an atkmpr to mitigate danrages.
Judgment for the total amount. plus intei*t.

.r.*..v ii-J,..usr*ye.p!.ii ; frf f ;itr6f ;

. : li (,r.i , ; rp[F:

was entered b)'the District Court. 529 F Supp
357 0981).

8. Judge Campbell concurreC specially to
ernphasize the fact that the Court of Appeals
had not passd on the merits of the District
Court's bolding that petirioner g'as a public
figure. We, of course, also do not p^c< oD that
question.

{3b] We observe that respondent's publica-
tion of Consumer ReporG plainly would qual-
ify it as a "media" defendant in this action
under any conceivable defnition of that term.
Hence, the ansr^'er to the question presented
ir. Dunn & Bradstreet, lnc. v Greenmoss
Builders, Inc., certiorari granted, 

- 
US

-. 
78 L En 2d 33{, r0{ S c\ 389 (1983i

cculd not a-ffect this ca-.e and u.e naturallv
elpresis no rieu at this time on that question.

511



tual malice US _, ?6 L &l
2d 805, 103 S Cr 18?2 (1983).

I
To place the issue in focus, it is

necessary to state in somewhat
greater detail (a) the et'idence on the
"actual malice" issue; and (b) the
basis for the Disrrict C,ourt,s deter-
mination.

Euidence of Actual llfa]ice.

At trial petitioners endeavored to
prove that the key sentence embod-
ied three distinct falsehoods about
instruments heard through the Bose
system: (1) that their size seemed
grossly enlarged; (D that thev
seemed to move; and (B) that their
movement r+'as "about the room.,'

Although a great deal of the evi-
dence concerned the first two points,
the District Court found that neither
was false. It concluded that the aver-
age reader u'ould understand that
the reference to enlarged instru-
ments was intended to describe the
size of the area from which the
sound seemed to emanate rather
than to any perception about the
actual size of the musical instru-
melts being played, rejecting as .,aF
surd" the notion that readeis v,ould
intglnret the figurative language lit-
erally. 508 F Supp, at 126t., -After
referring to testimony explaining
"that a certain degree of mo.,remenl
of the apparent sound source is to be
expected with all stereo loudspeaker
systems," the District Court recog-

nized that the statement was accu-
rate insofar as it reported that .,in_

struments... tended to wander.
. . ." Id., at 1267. Thus, neither the
reference to the apparent size of the
rnstruments, nor the reference to
the fact that instruments appeared
to move, u'as false.ro

The statement that instruments
tended to n'ander "about the room"
was found false because what the
listeners in the test actually per-
ceived was an apparent movement
back and forth along the wall in
front of them and bet*,een the two
speakers. Because an apparent
movement "about the room',-rather
than back and forth-u'ould be so
diflerent from what the average lis-
tener has learned to expect, the Dis-
trict Court concluded "that the loca-
tion of the movement of the appar-
ent sound source is just as critical to
a reader as the fact that movement
occurred-" Ibid.

The eridence concerning respon-
dent's knowledge of this falsity fo-
cused on Arnold Seligson, an Lngi-
neer employed by respondent. Selig-
son supen'ised the test of the Bose
901 and prepared the u'ritten report
upon which the published article
was based. His initial in-house rq.port contained this sentence:
"'Instruments not only could not be
placed nith precision but appeared
to sufer from giganticism and a ten-
dency to wander around the room; a
violin seemed about 10 ft. $'ide, a
piano stretched from *'all to wall,

.r rr -. /a.j<:-:

etc,'" -

editori.
room"
change
statemr
evidenc
of the
report,
tion re
of Seli6
qrote 1

checkec
port.

S"irg,
and tes
the triz
direct e
length r

Bose, er
nation
of the
forth a<

122. Th
Seligsor
vealed
Seligsor

I l. The
answereC:

"Q.Dc
lateral m<

"A. Yes
"Q..I ti

*'hich sa1.

if the_v car
"A. Iht

into the r
and a sid
onll' thar
acres tie

'Q. 'Ir !
didn't sa1
r*'all. aloa

'4. I b€
explain tl
an exampl

'Q. Tbe
it?

"A. It r
mean abor
ers.

:L&ir -r'ij: :ij.,

U.S. SUPREME COURT REPORTS 80LEd2d

!.1

1
+{

i

I
I

.l
I

I: I
t-, I

(

G,O

9. 'Th-erefore, the plaintiff did not present
any evidence to contradict the defe;dantt
evidence which tended to show that whenlj"tening to the Bose 901 a listener could ana
does perceive that the apparent sound source
rs very large. Thus, the court concludes that
the plaintitr has not susta-ined its burden of
proof by a preponderance of the evidence that

512

the defendant's stat€ment-'instruments
seemed to grow t gigantic proportions,-*,as
false." 5O8 F Supp, atL267.

10. Thus, respondent prevailed on both of
the issues of fact that had been identifed at
the summary judgment stage of the proceed-
ings. See n 4, supra.

.ii,ii5i



:l

'l

:l
;l

I
I

80LEd2d

iement was accu-
-eported that ..in_

rded to q.ander.
J hus, neither the
rarent size of the
.he reference to
rments appeared

hat instruments
about the room',
cause what the.t actually per-
arent movement
ng the wall in
,etween the two

an apparent
c 19991',_;g[lgy
l-would be so
the average lis-
expect, the Dis-
: "that the loca-
,t of the appar_
-st as critical to
that movement

erning respon-
this falsiry fo
:gson, an engi-
.pondent. Selig_
:st of the Bose
u'ritten report

blished article
al in-house re
-r is sentence:
iy could not be
. but appeared
-ism and a ten-
rd the room; a
10 ft. r,r'ide, a
wall to u'all,

-'iDstruments . - -
proportions,_wa5

'. ailed on both of
'ieen identified at
e of the proceed-

-oose, explalnlrl
nation for the!!f!, erttalning the scientidc ;'rpl;-
rr4rrurl ror f,ne apparent movement
ol the source of sound baek qn.ty, Lne source ol sound back andforth across a u'all. Joint aon rJi_rurlo across a $'all. Joint App 112_
122; The trial judge then queitioned
Seligson, and 

-thit 
questioning ieivealed that the movement wt ictr

Seligson had heard during the ;;;

(

"*:"'.Id., at 1264, n 2g. Since theedrtorral rer"ision from .,around theroom" to "about the room', did noichange the meaning of th; f"i;;
statement, and since there u,2-s n9
evidence that the edit.ors were a\\,areof the inaccuracy in the ,.igi;;l
report, the actual malice dehr;in;_tiol rests entirel-v on an evaluation
of Seligson's state of mind *fr"rr h"wrote his-initial report, or u.hen he
cneclied the article against that re-port.

Seligson u.as deposed before trial
a-nd testifed for almost six days atthe trial itself. At one point il-fri.
direct examination. he r-esponded ai
lg"Stl, to technicat testimo"i: [y O..

Il. The follou-ing questions were asked and
ansr+'ered:

, .'a ,D*. that explain, in your opinion, the

('

,'Q I thint your statement in the article
. ynl.h sa_vs theJ moved into the room, iust a^str rney carDe fors,ard, as well_

, "A-,The example given for the movementrnro the room refers onl-r. to a widened riolinand a widened piano anj u.as meant !o imnlvonr} that the widening and movement s,as
acrosc the rear s.all from the tu.o speakers.

,.:q,'r, ten-ded to s.ander about the room., Itdidat say from side to siae oi ,g"l*i'rf,Iwalls alone, but it savs_
"A.. I believe the next s€Dtence is meant to

::e]ain tlar -It therr says, .Fo. instar,[,; Ian example ofthe effect.

., "Q. ff," word .aboutj 
means around, doesn,t

"A. It was, your Honor, it nas meant tomean about the rear r*.all, between tf," 
"p".1"ers.

Iateral movement oi the ilnstrument?
"A. Yes.

..i4. }.ggt! t]. - ' _

rJ j ..i. .: _ :1i-.,1,

BOSE CORP. v CONSUMERS UMON OF U.S.,INC.
80 L Ed 2d 502

. f;+'

r.**

\r'as confined to the u.all.r Duringhis cross-examination, at counsel,s
request he dreq- a rough sketch oithe movement of the *urrd sou.cethat he intended m a"...iU" 

-oiii
the u'ords "tended to u.ander about
the- room"; that sketch ,"r"a"Jl
back and forth movement along ihewall betr+.een the speaku... H"'**
then asked:

"Q.- Mr. Seligson, rr.hl. did l,ouuse the words .tend"d io o.ant"i
about the room' to aerc.iUe 

-"frai
you have drau-n on the board?

"A. Well, I don't knou, what
Tr9" me pick that particular
cnorce ol q'ords. \\rould 1.ou have
been more satisfied if "*; 

";i;'ac,ross,'-I think not_instead oi
before. I have the feeling Vouwould have objected in "either
eve-nt- The r.r.ord 'about. rneant iust
as I drer,r- it on the board. Xo".-i
s_o testified in m-v deposition"_
Joint App 169.12

"Q. That isn't q.hat it sa-r,s, though.
"A. I understand."

Joint App. l2l-t24.
I2,- These additional questions were thenasked and answered:
"Q. Would it have been more accurate in

_vour judgment to say t-hat the instrument"
r€nded to move back and forth tretu,egn 15.t*'o speakers?

, "A. No, I donl think so, taken in context ofthe way it's described. Remember, tf," 
"f*i i"carefully described in a fes, ,""i;;;--L;;

It's hard to mistake.
"Q.. Is.there anSlhing in the anicle s.hich

]'ou rtunti conveys to the reader the idea thatthe rnstrumeDts stayed dosn at one end ofthe room and didn't come out and wander
about,. Ii.ke you wandered 

"lout, "rt "." Jo,nave dra\A?l the orange line?
"A. Yes.
"Q. 14'har is that?

. "A. I would think that the reader would setthat-from reading thar a riolin ;;p"";';";
1en fTt r,r.ide and a piano stretched f.o_ *,ulito u'all. ThLs L. no hint of depth o, 

".1.,ut"*1"r,ent€ring into the room ,'Joini app fog_iio.''

5r3



ir#r

U.S. SUPREME COURT REPORTS 80 LU 2d

{

1
t1

i
i

The District Court,s Actual Malice
Determination.

^ The District Court,s reasons for
fi,nding falsity- in the au.".ipJon'lf
the location of the movement of the
wandering instruments provided the
background for its ruling 

""-".t".imalice. The court conclud"ed th;;:."o
reasonable .reader,, would under_
stand the sentence as describintiai-
eral movement along the r+.ail] Ce_
cause the "average reader', 

",o"tarnterpret the word ,,about,, 
accord-

ilrg P its "plain ordinary -";;i;;J,the Diltrict Court uneqrliro""t\,-io
jected Se.ligson,s testimony_;i ;;-
spondent's argument_thai the sen_tence, when read in context, couldbe understood to refer t" il;;i
movement.rs

^ On similar reasoning the District
Court found Seligson's"ar";**;';;
explanation of the intended meanins
of. the sentence incredible. ifr" iii"ltrict Court reasoned:

"Thus, according to Seligson, the
words used in the Articli.ALout
the room'-mean something difei-ent to him than they do"to the
populace in general. tf S"tig.o"-;
b.P" believed, at the ti*e of p"Lfi

. cation_ of the Article fre inter_preted, and he still interprefs to_
day, the words 'about thd;;;;, ;mean 'along the wall., After care.ful consideration of Setigson,s GI-
liTgny and of hi" a".i"a"o. 

- 

"itrial, the Court finds ttrat Selig-son's testimony on this poini L

not credible. Seligson is an intelli-gent person whose knou,ledge ofthe English language cannor bequestioned. It is simply imposiblefor the Court to Uetie"e ihr, ;;interprets a commonplace *o.a
such as 'about' to mean anlthins
other. than its plain ;;a;;;
meanlng.

^ "Based on the above finding that
Seligson's testimony to the'con-
trar-v is not credible, tf," 

-C.ii
further finds that at the tim;-;i
the Article's- publication Seligs;
kneu, that the u,ords .indir.ilual
instruments . . . tended to 

",anae.about the room, did not accuratelv
des_cribe the eflects tf,at f,e-r"iktg* had heard during th; ..pe:
cial listening test., Co.r"r"qu"otij,
the Court concludes, on the basisof 

-proof which it considers clear
and convincing, that the plainiii.
has sustained its burden of p.or.
ing that the defendant published a
fa-lse statement of material factu'ith the knou'ledge that it u-as
lalse or *ith reckless disregard of
iF,r:u^th- ^or 

falsity.', 50S fr Sup;:
at L276-7277.

(

Notably, the District Crcurtt ulti-
mate determination of actual -J*was framed as a conclusion and was
s-tated in the disjunctive. E"en
though the District 

-Court 
iorra il

impossible to believe that Selilson_
at the time of trial_was trui'hfully
maintaining that the words ..aboui
the room" could fairly U" ,""a, 

-i"
context, to describe lateral mor-e

.:J

-, 
13. The District Court buttressed thjs 

.con-

:luslon,by pointing out that petitioner hadrecelved no complaints from purchase.s abouiany r*'andering- instruments, and that noor.her rer.ies.s of the Bose 901 had referred tJ*andering instruments. On the ..nt."^j. Irevreu', quoted b.r. the Distri"t Cor.t io-_mented that .,each instrument f,"s it pr*
514

scribed space-and it sta-vs there." See n i,
iYflu lni.,ltidence, howlver, s.a-s more pro
Datlve of falsity in ascribing an). movement atal b the sound source than of fa.lsitv indescribing the location of th" .;;";;;1 ,f,we have pointed out, the District Court fou.nlthat the article s:as truthful insofar a-. itstated that apparent movement occurred.



., I- ;.rl

I

BOSE CORP. v CONSUMERS UNION OF U.S., INC.
80 L Ed 2d 502

80LEd2d

gson is an intelli-
-rse knou'ledge of
luage cannot be
rimplf impossible

believe that he
lmonplace u'ord
l mean anlthing
plain ordinary

rbove finding that
rny to the con-
dible, the Court
t at the time of
,ircation Seligson
.r'ords 'individual
rended to *'ander
id not accurately
t'ts that he and
.l during the 'spe-
-t.' Consequently,
Ces, on the basis
i considers clear
:hat the plaintiff

burden of prov-
;dant published a
of material fact
dge that it was
.iless disregard of
ty." 508 F Supp,

trict Court's ulti-
r of actual malice
)nclusion and was
lisjunctive. .Even
't Court found it
;e that Seligson-
,l-was truthfully
:he u'ords "about
airly be read, in
be lateral move.

."ays there." See n 5,
,wever, rvB-< more PrG
,ing any movement at
e than of falsity in
cf the movement. As
.District Court found
'uthful insofar as it
ement occurred.

(

ment rather than irregular move-
ment throughout the room, the Dis-
trict Court did not identify anf inde
pendent evidence that Seligman re-
alized the inaccuracy of the 

-state-

ment. or entertained serious doubts
about its truthfulness, at the time of
publication.'a

il
tal This is a case in which two

*'ell settled and respected rules of
lau-point in opposite directions.

Petitioner correctly reminds us
that Rule 52(a) provides:

"Findings of fact shall not be set
aside unless clearl-v erroneous, and
due regard shall be given to the
opportunitl' of the trial court to
judge of the credibility of the u-it-
nesses."

We have -repeatedly held that the
rule means u'hat it says. In'*'ood
Laboratories, Inc. v Ives Laborator-
ies, Inc., 456 US 844, 85H56,72 L
Ed 2d 606, 102 s ct 2i82 (1982);

Pullman-Standard v S*'int, 456 US
273, %7, 72 L Ed 2d 66, 102 s ct
1781 (1982); United States v United
States Glpsum Co., 333 US 364,
394-396, 92 L Ed 746,68 S Ct 525
(194S). It surely does not stretch the
langrrage of the rule to characterize
an inquiry into what a person knew
at a given point in time as a ques-
tion of "fact."rs In this case, since
the trial judge expressly commented
on Seligson's credibility, petitioner
argles that the Court of ApPeals
plainly erred when it refused to up

hold the District Court's actual mal-
ice "finding" under the clearly erro-
neous standard of Rule 52ta).

l5l On the other hand, respondent
correctl]' reminds us that in cases
raising First Amendment issues s'e
have repeatedly held that an app€l-
late court has an obligation to
"make an independent examination
of the r*'hole record" in order to
make sure "that the judgment does
not constitute a forbidden intrusion
on the field of free expression." New
York Times v Sullivan, supra, 3?6
US, ar 2A4-266,11 L Ed 2d 686, E4 S

Ct 710, 95 ALR2d 1412. See also
NAACP v Claiborne Hardq'are. 458
us 886, 933-934, 73 L Ed 2d L2L5,
102 S C,t 3409 (1983); Greenbelt Co
operative Publishing Assn. v Bres-
sler, 396 US 6, 11,26 L Ed 2d 6.9C S

Ct 1537 i1970); St. Amant v Thomp
son, 390 US 727,732-733. 20 L Ed
2d 262. 88 S Ct 1323 i1968). A-l-
though such statements have been
made most frequentll in cases to
which Rule 52(a) does not appll'be
cause they arose il state courts, re-
spondent argues that the constitu-
tional principle is equally applicable
to federal litigation. \Ve quite agree;
surely it would pen'ert the concept
of federalism for this Court to laY
claim to a broader po\t'er of rer-iew
over state court judgments than it
exercises in revieuing the judgments
of intermediate federal courts.

Our standard of rer-ieq' mu-st be
faithful t0 both Rule 52ta) and the
rule of i-ndependent relier,r' applied
in New York Times v Sullivan. The
conflict between the two rules is in

()

il

I
I

I

I

i

.l

I

1it. The District Court exPressl-v rejected
petitioner's exMustive att€mpt to prove that
Seligson had a continuing int€rest in market-
ing his o*'n speaker and therefore deliber-
atell- distorted the review. 508 F Supp. at
1275.

15. Indeed. in Herbert s Lando, 441 US f53'
1.70, 60 L El 2d 115, 99 S Ct 1635 t1979t *'e
referred in passing to actua.l malice as "ulti-
mate faa."

5r5

.:\r -r-! .a , ' !, i,'"i!?



U.S. SUPREME COURT REPORTS 80LEd2d
;,t

,.i

':r,

il

some respects more apparent than
reai. The New york Tfres ."tu u__
phasizes the need ficr an appell.t"
court to make an independeni exam-ination of the entir.e .".o.a; RriL
5?a) never forbids such an "*"-inr_tion, and indeed our seminal deci
sion on the rule expressly con;;_
plated a review of the entire ;;;,
stating that a .,finding is ,clearlv
erroneous' u'hen although there i
eridence to- support it, the reviewing
court or? the entire euidence is lefiqith the definite and firm 

"o,rU"rlo.,llrt , mistake has been committed.,,
United States v Glpsum Co.. sup.a,gll us,at 3e5, s2'iEd i46, 68 dci
lZi re_lnlasis supptied). trio.uor,*,
xule C:l(a) commands that ,.due 

re_gard" shall be given to the trial
Jucrge s opportunity to observe the
demeanor of the u-itnesses; the con_
stitutionally-based rule of i"aefe"-
dent revieu' permiLs this opportuniiv
to be given its due. Indeed, 

". *Lpreriously observed, the Co.rrt oi
tpPe.b in this c€Lse expressll, de-clined to second-guess r-he di-strict
Judge on the credibility of the uit_
nesses.

[6, 7, 8a] The requirement that
:p1i4 deference be given to a t.iJ
.lydqg'" credibility dererminations isrtsell a recogaition of the broader

proposition that the presumption of
correctness that attaches to factual
findings is stronger in .o-" cas".than in others. The same ,.clearlv
erroneous" standard applies to find'-
ings based on document"."-r. 

"ria""." 
,

as to those based entireil. on oraltestimony, see United States Gfp
1o.*_C9., supra, B3B US, ar Bg4, giL
Ed 746,68 S Cr 525, but th;;;;
sumption has lesser force in the ior_mer situation than in the latter.
Similarly, the standar"d do". ;;;
change as the trial becom". fo"gui
and more complex, but the likEii-
ho-od that the appella:e court uillrely on the presumption tends toincrease when triaf judge. frrrl"
lived rn'ith the controv"rsy io. weeksor months instead of just a ferv
h-ours.t6 One might thereiore *."-u
that the cases in which tf," ,pp"-firt"
courts have a dut1. to exercise ind+
pendent rer-ieu. are merelv those in
*'hich the presumption that the triJ
court's ruling is correct is particu_
larly weak. The differen.u U"t*"""the two rules, however, is much
more than a mere matter of degree.
For the rule of independent ."i,i"ro
assigns to judges a constitutional
responsibility that cannot be dele.
gated to the trier of fact, 

",fr"ifr*the factfinding function be per_

(

I
.s

7
rT

I,

'a
t

.^19,t9_b] 
"The colclusiveness of a .6nding ofract depends on the nature of the materlls

::^:1.! ,n" .Fgi"r. x based ir'r"'n"ar"e
even ol a so-called .subsidiarl. 

fact, ma.y be !
l:T "-l 

less .ti_fficult process varving accord_
[C-.lo.tne simplicity or sublety oi the type of,uT .p controversl.. Fi-nding so_called'ulti_
f;^L:€ ;t1crs',more clcarly implies the applica_

be drant from the q,hole mass of eridence is
n^ot alu,ays the ascertainment of the kind ofTacf. that precludes consideraiion- ;;]h;
:3^ult !_.", e. g., Beyer v LeFevre. 186 IjS tlr{
{19 L Ed lo$o, 22 S Ct ?65j. p.ni.uUJv isthis so *'here a decision here for ,""i"* Ln-not esc€pe broadly social judgments_iude_
-,u1b lvi"g close to opinion ..gr.ai"g 1f,"whote nature of our Government anJ theduties and imm unities of citizenship. ;--B;;;-
q3.1r9." United States, S22 US 665, 620_621,q L M 1525. U S Ct 1240 (194{,. Se;;e;;;:ally PullmanStandard v Swint, ;;.:-;6
US,-at 286-282 n t6, 72 t ra za'eo, ibz' S'Ci

tion. of standards of lro..:And'so th. inri'"gif
fact' 1ve-n if made b5, tu,o courls mav so
DeyoDd the determination that should not L
f:. .r:d: here. Though labeted ,firdi"; ;"fract. u rna). inrolve the very basis on r..Lch
iy,d*:1, of fallible eridence i. to Ue maae.rnus- the conclu-sion that ma5. appropriatel_t_ I 781.

5r6

.rQ*.\H!
.9:rl.!}i*ll

(

'l

I
i
t
1

r
r
l
lr

8
s
2
v
v
it
,ir
p.
ti

lal
iB
th
er

-,@

-
tru
rl
'tte{
tL
prt
wh
ta.
th€
iDd
dr6
sut

ci,



80LEd2d

: presumption of
:aches to factual
:' in some cases
e sanie "clearly
: applies to find-
rentarl' evidence
entirell, on oral
:ed States Gyp-
US, at 394,92L
25, but the pre-
force in the for-

: in the latter.
rdard does not
becomes longer
but the likeli-

.llate court rr'ill
rption tends to
al judges have
rversy for q'eeks
of just a fe'*'

.herefore assume
,ch the appellate
:o exercise inde-
merely those in

.on that the trial
rrect is particu-
ference betu'een
ivever, is much
::ratter of degree.
ependent review
a constitutional
cannot be dele-
of fact, u'hether
:nction be per-

: mass of eridence is
-.ment of the kind of
-:rsideration by this
LeFevre, 186 US 114
7651. Particularly is
here for review cal-
ral judgments-judg-
'rnion regarding the
'lvernmeDt and the
: citizenship." Baum-
i2 US 665, 670-67r,
i0 (1944). See gener-

Su'int, supra, 456
- Ed 2d 66. 102 S Ct

ii
:.:
y1

SI
'!l

i

(

formed in the particular case by a
jury or b-r' a trial judge.

/- [9, 10a] Rule 52ra) applies to find-
/ ings of fact, including those de.
/ scribed as "ultimate facts" because
I tn"y ma!' determine the outcome of
i litigation. See Pullman-Standard v
I Su'int, supra, 456 US, at 287, 72 L
i Ed 2d ffi, 102 S Ct 1781. But Rule

I SZtal does not inhibit an appellate
\ court's power to correct errors of,| la*, including those that maf infect
I a socalled mixed finding of lau' and
I fact, or a finding of fact"that is pred-I icated on a misunderstanding of the
i goverrdng rule of law. See ibid.; In-

wood l,aboratories, Inc. v Ives Labo-

I ratories. Inc., supra, 456 US, at 855
I n 15,72L Ed 2d 606, 102 S Ct 2182.

I No. does Rule 52ta) "furnish particu-
I lar guidance u'ith respect to distin-
I guishing lau' from fact." Pullman
I Standard v Su'int, supra, 456 US, at
I 288, 72 L Ed 2d 66, 102 S Ct 1781.
I What s'e have characterized as "the
\ vexing nature" of that distinction,
I ibid., does not, hor+'ever, diminish ils
\ importance, or the importance of the
\ principles that require the distinq-
\, tion to be drau'n in certain cases.r?

In a consideration of the possible
application of the distinction to the
issue of "actual malice," at least
three characteristics of the rule
enunciated in the New York Times
case are relevant. First, the common

I

,,
,J

ot
I't
,t
t

-.t.I

,,I
{

;
,i

I

I

{

17. [10bJ A findrng of fact in some cases is
inseparable from the principles through
which it *'as deduced. At some poiat, the
lsssening by which a fact is "found" crmes
the line betseen application of thme ordinary
principles of logic and common experience
s'hich are ordinarily entrusted to the finder of
fact into the realm of a legal rule upon *'hich
the reriesing court mu6t exercise it-s ourr
independent judgment. Where the line is
dra*m saries according to the nature of the
substantive iar,r' at issue. Regarding certain

BOSE CORP. v CONSUMERS UNION OF U.S., INC.
80 L Ed 2d 502

...:..i-: : "',:<t:.s,.,*

iS"

lau' heritage of the rule itself aqqigng
an especially broad role to the judge
in app)fing it to specific factual situ-
ations. Second, the content of the
rule is not revealed simpll' by its
literal text, but rather is given
meaning through the evolutionary
process of common lau' adjudication;
though the source of the rule is
found in the Constitution, it is nev-
ertheless largely a judge-made rule
of lar+,. Finally, the constitutional
values protected b-r'the rule make it
imperative that judges-and in some
cases judges of this gou6-make
sure that it is correctly applied. A
few u'ords about each of these as-
pects of the rule are appropriate.

The federal rule that prohibits a
public official from recovering dam-
ages for a defamatorl' falsehood un-
less he proves that the false "state.
ment $'as made vrtth 'actual malice'

-that is, u'ith knou'ledge that it was
false or u'ith reckless disregard of
u'hether it s'as false or not." Nen'
York Times, supra, 376 US, at 279-
280, 11 L &l 2d 686, 84 S Ct 710, 95
ALR2d 1412, has its counterpart in
rules previously adopted by a num-
ber of Etate courts and extensively
reviewed by scholars for genera-
tions.rs The earlier defamation cases,
in turn, have a kinship to English
cases considering the kind of motiva-
tion that must be proved to support

largell' factual questions in some areas of the I
law, the stalies-in terms of impact on future I
cases and future coDduct-are too great to I

'entru.st them finally to the judgEent of theJ
trier of fact.

18. A representative list of such cases aad
comments is found in footnote 20 of the
Court's opinion in New York Times, supra,
376 US. at 28O, 11 LU 2n 686, 84 S Ct 7r0,
95 ALR2d 1412.

<*+!,..ri;fr. i&,.*4<r?*.i*ti-.!trr{: t",

517



lF,*- '- ' L+

{
nl

21 '.1.['',1$
i

erthel
C{)mtu
uiterz
p:ots
does r

no ess
ideas
va.lue
tx'ne6:
them
social
it5'.'' I
315 r;
ct 76t

Libe
cotl6tit
Beau-h:
96Lj
ott!ers
out*sid€
speecl
sk1' v l
86LI
inciter
Ohio, 3
sesc
(19691,

Statq

ZL Cq.
as unprli
!'alenti'x
1t62,62 |
Board d
Council f
1817 0S
sion. Tbq.
qeech co
gory of rr
tirnale fu
aalIe AS t
'ftftere i
6tat€De8t
IDc- {f8 [
2997. Mrr
usarally -
about. a ry
provides a
tharr anlt

''-; "* : I
.-:::ct-r+ii*Fl

.t ;'r:.:i L C'

i4+*bl .

U.S. SUPREME COURT REPORTS 80LEd2d -t
rlil
d.l

1tt
a'i

a common law action for deceit.re It
has long been recognized that the
formulation of a rule of this kind
"allows the judge the maximum of
po$'er in passing judgment in the
particular case."2o IUoreover, the ex_
ercise of this pou'er is the process
through which the rule itself evolves
and its integrity is maintaiaed.rr As
we have explained, the meaning of
some concepts cannot be adequately
expressed in a simple statement:

"These considerations fall shortof proving St. Amant's reckless
disregard for the accuracy of his
statements about Thompson.
'Reckless disregard,'it is true, can-
not be fully encompassd in one
infallible definition. Inevitably its
outer limits will be marked out
through case-byrase adjuciication,
as is true with so many iegal stan-
dards for judging concrete cases,
whether the standard is providej
by the Constitution, statutes, or
case lau. Our cases. however, have
furnished meaningful guidance for
the further definition of a reckless
publication." St. Amant v Thomp
so-n, 390 US Z2Z, 7BO-ZSL,20 L Ifo
2d262,88 S Ct 1323 (1968).

_ l\'hen the standard governing the
dlisjon of a particulai case i; p;;
y.ided by the Constitution, ifri,
Court's role in marking out the lirn-
its of the standard through tire pre
cess of case-by-case adjudiiation ii of
special importance. This process has
been ritally important in cases in_
volr-ing restrictions on the freedomof speech protected by the Firsi
Amendment, particulariy in those
cases in which it is contended that
the communication in issue is u,ithin
one of the ferl' classes of .,unpro_
tected" speech.

[11] The First Amendment presup
poses that the freedom to- speak
one's mind is not only ", ^p".t of
indiridual liberty-and thus L goJ
unto itself-but also is essentia--l to
the common quest for truth and the
vitalig of societl' as a q,hole. Under
our Constitution ',there is no such
thing as a false idea. However perni-
cious an opinion may seem, r,r.e de-
pend for its correction not on the
conscience of judges and juries but
on the competition of othlr ideas.',
Gertz v Robert Welch, Inc., supra,
118^U^S,at 389-840, 41 L Ed Zd iAg',
94 S Cr 2992 (footnote omitted). Nev_

(

..l9._Under what has been characterized asthe '!r9ngt liar', formula, t;;d ;;; tpmved "uf,ren it is shorrn that a ialse [pJ
rynhtion has been made (1) kno".inginglo.
(2r without belief in its truth, or fSt Jkle.i, '

g3ryle"" whether it be true o. f.U:;n ^j"Peek, 14 App Cas 837,574 (l889)r -'

..2X). 'Probably the formula is lesq definite
ll11t-. r, .*T,". I1.. limitations are perhaps
lgC:t{ a-matter of language color. As do mctrrngllsh tormula.s,. it allows the jufus fls mar_.rnyg 9r power in passrng jufument in theparttcular case. It restricts the jury as neatlv
8.s can be done to the function of-."ar"iirri
the, evidence. But judgment under this foIpup can be turned either wa.y nith eoualfacili_ty on any close 

".*." t .-b.** .l-J#"
and Jury, 286 u9g0) (Chapter tO of ihl ;;k
5r8

by,Professor_Gr_een, cited herein, is also pub_
hshed i-n t6 Va L Rev ?49 0990,).

2f. "And it must be kept in mind that thejudge has another distincl function in J"rlrrg
with these elements, *,hich though not frEquentll called into play, is of lhe utmost
mportarce. It involves the determination oftlg *p. of the general formula, o, *." o."
of its elements. It comes into pla1. in ma.ginal
cases. It requires the judge to 6aj.s.hat 60; of
coDduct ce. be considered as condemned un_der the rules q'hich are employed in such
case6. It is the function through s'hlch the
formulas and rules themselves -*o"." 

.rotr"a,
through which their int€grity is maintain-J
and their- a-vailability det€rmined." L. Green,
Judge and Jur1, 304 {1930).

!
,l

!

G'l
I
I

,l
'l

I



80L&l 2d

governing the
,r Case.is Pro-
iitution, this
g out the lim-
'ough the pro-
.rdication is of
.is process has
t in cases in-
r the freedom
by the First
arly in those
ontended that
issue is lvithin
es of "unpro

dment presuP-
.om to speak
i' an aspect of
C thus a good
is essential to
truth and the
'x,hole. Llnder

re is no such
fowever perni-

seem, we de-
rn not on the
and juries but
f other ideas."
h, Inc., supra,
1 L Ed 2d789,
.omitted). Nev-

rerein, is also pub-
1930),.

t in mind that the
iunction in dealing
'h though not fre
is of the utmost

e determination of
:mula, or some one
to play in marg:inal
to say *'hat sort of
as condemned un-
employed in such
hrough which the
ives were evolved,
-ity is maintained
nined." L. Green,

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-lr-l

BOSE CORP. v CONSLTMERS UNION OF U.S.,INC.
80 L Edtu3 502

ertheiess, there are categories of
comrnunication and certain special
utterances to *'hich the majestic
protection of the First Amendment
does not extend because they "are
no essential part of an-t* exposition of
ideas, and are of such slight social
value -as a step to truth that any
benefit that may be derived from
them is clearly outrveighed by the
social intere-qt in order and moral-
ity." Chaplinsky v Neu' Hamphire,
315 US 568, 572,86 L Ed 1031, 62 S

ct 766 $942t.

Libelous speech heis been held to
constitute one such category, see

Beauharnais v Illinois. 343 US 250,
96 L Ed 919, 72 S Ct 725 $95D;
others that have been held to be
outside the scope of the freedom of
speech are fighting rvords, Chaplin-
sky v New Hampshire, 315 US 568,
86 L &l 10:'11 62 S Ct 766 $942\,
incite,ment to riot, Brandenburg v
Ohio, 395 US 444, 23 L Ed 2d 430,
89 S Ct 7827, 48 Ohio Ops 2d 320
(1969), obscenity, Roth v United
States, 354 US 476,1 L Ed 2d 1498,

.22. Commercial speoch q as once regaded
as unprotectd by the First Amendment, see
Valentine v Chrestensen, 316 US 52, 86 L &l
1262,62 S Ct 920 (1942), but in Virginia Stat€
Board of Pharmacy v Virginia Consumer
Council, 425 US ?48, 48 L Ed 2d 346, 96 S Ct
1817 (1976), we rejected that broad conclu-
sion. Though false and misleading commercial
speech could be deemed to represent a cate
gory of unproteced speech, see ibid., the ra-
tionale for doing so would be essentially the
aalle as that involved irr the [bel area, viz
"ffiere is no constitutional value in fals€
statements of fact." Gertz v Robert Welch,
lnc., 418 US, at 340, 4r L Ed 2d ?89,94 S Ct
2997. l\{oreover, since a commercial advertiser
usually "seeks to disseminate information
about a specific product or service he him-self
providts and presumabll knou's more about
than anyone else," Virginia State Board of

(

I.a

.,'l(i
!

a',.i
-l

:

77 S Ct 1304, 14 Ohio Ops 2d 331
(1957), and child pornographl', New
York v Ferber, 458 US 74i,73 L FA
2d 1113, 102 S Ct 3348 (1982).2 In
each of these areas, th€ limits of the
unprotected categorl', as u'ell as the
unprotected character of particular
communications, have been deter-
mined by the judicial evaluation of
special facts that have been deemed
to have, constitutional sigaificance.
In such cases, the Court has regu-
larly conducted an independent re
vie*' of the record both to be sure
that the speech in question actually
falls uithin the unprotected category
and to confine the perimeters of any
unprotected category u'ithin accept-
ably narrou' Iimits in an effort to
ensure that protected exprersion u'ill
not be inhibited. Providing triers of
fact rnith a general description of the
t1'pe of communication u'hose con-
tent is unworthy of protection has
not, in and of itself, sen'ed suffi-
ciently to narow the category, nor
served to eliminate the danger that
decisions by triers of fact may in-
hibit the expression of protected

Pharmacy. v Virginia C,onsumer Council, su-
pra, 425 lJS, at 772 n 24, 48 L H %l 346, 96 S

Ct 1817, there is a minimal "danger that
governmental regulation of false or mislead'
ing price or'product advertising s'ill chill
accurat€ and nondeceptive commercial ex'
pression." 7d, at 7i7,48 L Ed 2d 3,48,96 S Ct
1817 (Stervart, J. concurring).

Statements made by public employee in
their employnent capacity and not touchiag
on rnatt€rs of public conoern m"y be consid-
ered unprotected ia the sense that employ-
ment-related sanctions may be impaed on the
basis of such stat€ments. See Connick v
Myers, 

- 
US 

-, 
75 L Ed 2d 7O8, r03 S

C\ 1648 (1983); Givhan v Western Line C.on-

solidated School District, 439 US 410, 58 L &l
2d 619, 99 S Ct 693 (1979); Pickering v Board
of Education. 39f US #3,20 L Ed 2d 8f f , 88
s c\ 1731 (1968).

r",.*-.:,.1*,

5r9



U.S. SUPREME COURT REPORTS 80LEd2d

;
j

i

ideas.a The_ principle of vieu,point
neutrality that underlies the First
Amendme-nt itself, see police Depart-

. aen_t-of Chicago v Mosley, 40ti US
92, 95_96, 33 L Ed 2d 212,92 S Ct
2286 (7972). also imposes a special
responsibility on judges u.henever it
is. cla.imed that a particular commu-
nrcatrln rs unprotected. See gener_
ally, Terminiello v Chicago, g5Z US
1, 4, 93 L Ed 1131, 69- S Ct gg4
(1949).

We have exercised independent
judgment on the question whether
particular remarks ',were so inher-ently inflammatory as t.o come
within that small class of ,fighting
words' u,hich are 'likely to piovokE
the average person to retaliation,
and thereby cause a breach of the
peace,'" Street v Nen, york, 394 US
576, 592, 22 L Ed 2d 572,89 S Ct
1354 (1969), and on the analogous
question u'hether advocacy is di-
rected to_inciting or producing immi-
nent_lawless action, Hess v Indiana,
414 US 105, 108_109, 38 L Ed 2d
303, 94 S Ct 926 (1929) (p". "rri.-i:g-J"le i{., "! 111, 88 t Ed 2d S0s;
94 S q 326 (Rehnquist, J., dissent-
ing) ("The simple explanation for the

result in this case is that the major-
i-t-v ha-. interprered rhe er.ide.,ce ili_
t'erentll' from the court.q belou..',);
E-dwards v South Carolina, 872 US
229! 9 L Ed 2d 697, 83 S Cr 680
(19_63) (recogtrizing dut-r. ..to make an
rndependent examination of the
I:hol:^ITgld."); pennek.-p 

" fio.-
i^{a,^a!s US 391, Bg5, 90 r'FH tisS,
66-5 Ct 1029 (1946) (..ftqe u." 

"o*lpelled to examine for ourselves the
statements in issue to see s,hether
or not the_r. do carr), a threat of clear
a_nd present danger or u,hether
they are of a character u.hich the
principles of the First Amendment. .protgct.,,).%

Similarly. although under Irliller v
California, 4IB US tb. g7 L Ed 2d
4.19, 93 S Ct 2602 (1978r, the ques-
tions of u.har appeals to ..pruiient
interest" and u'hat is .,patently 

of-
fensive" under the community itan-
dard .obscenit)' test ..u ..""r"r,ti"iiy
questions of fact,', id., at 30, gZ L Ea
2d 479,93 S Ct 2607, y.e expressly
recognized the "ultimate power of
appellate courts to conduct an independent review of constitutional
claims when necessary,,'_id., at ii,
37 L M %l 4t9,99 S Cr 260Z.% W;

I

t

i

(

'23. The risk of broadening a category ofunprotected speech may explain u.iy -one

Member of this Court preferred a candidstatement-"I know it whin I see it,,,-_<f hG
concept of the judicial function to a prema_
tr.tre attempt-to fashion an all encomiassing
"shorthand description" of oUscenity.- See Jal
cobellis v Ohio, gZ8 US 184, l9Z, li L Ed 2A
7€3, 84 S 

-Ct 
1676, 28 Ohio Op. Za ior Os6a)(st€wart, J., concurring).

^^?._-Qf" also Fiske v Kansas, 274 US 380,
l8T9z, zr L Ed il08, 47 s Ct osiirgiii(erplaining that thi6 Court will review find_
u]Ss of fact by a State court n,here a feaerafncft has been denied on the basis ;i;-i;;sithout evidence to support it and u,here a
conclusion of lar,r' as to a federal right and afinding of fact are so intermingled ; ."q"i.;
analysis of the facts); Gitlow v rt"* vo.tl C6a

520

US 652, 655.666, 69 L Ed 1138,45 S Ct 625
(1928); see also Schaefer v United stat€s, 251
qS 466, 4&). 64 L Ed 360, 40 S Cr zSs dsnt(Brandeis, 

1Ia, 
dis-senlingt; see generalll. Broa-

drick.v Oklahoma, 4I3 US 60f, 6lg_614, 87 L
Ed 2d 830, 9g S Cr 2906 (1978) te*pf"i"i"g
!{n'ards v South Carolina, gZ2 US iA, i L
Ed u 697,83 S Cr 680 (fgffi); Cox v Louisi
ana, 379 US 536, 18 L Ed %) til., 85 S Ct 4EB(1965); and Cantwell v C,onnesticut, g10 US'296,311,84 L Ed 1213,60 S Cr 900, 1% ALR
1352 (794Ot).

. 

_ 25. In support of this statement, *,e cited
Justice Harlaa's opinion in Roth'v United
Iat1s,_354 US 476, 4924s8, t f Sd 2d t4g-8,
77 S Ct 1304. 14 Ohio ops 2l 331 0957);
n'here he obsened:
"The Court seems to assume that .obscenitv'
is a peculiar genus of hpeech and press.'

C

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80LEd2d

that the major-
:he evidence dif-
courts belovr'.");
lrolina, 372 US
;. 63 S Ct 680
It)' "to make an
ration of the
:rekamp v Fior-
. 90 L Ed 1295,
'';\\r]e are com-
r ourse]ves the
to see rvhether
r threat of clear
. . or q'hether

,Jrer \4'hich the
st Amendment

under \{iller v
5,37LEd2d
973), the ques-
.s to "prurient
s "patently of-
,mmunity stan-
.re "essentiall-"-
at 30, 37 L Ed-, we expressll,

nate power of
,nduct an inde.

constitutional
ry," id., at 25,r Ct 2607.s We

1138, 45 S Ct 625
Unit€d States, 251
40 S Ct 259 (7920)

-ee generally Broa-
60r, 613-614, 37 L
(1973) (explaining
372 US 229, I L

963); Cox v l-ouisi-
rd 471, 85 S Cr 453
lnec'ricut, 3f0 US
s cr 900, 128 ALR

:at€ment, we cited
in Roth v United
.. 1 L Ed 2d 1498,
,ps 2d 331 (1957),

re that 'obscenity'
:,eech and press,'

-l

I

'1

l
;i
!.t
'1
il,l

1

BOSE CORP. v CONSUMERS UNION OF U.S., D(C.
80 LU 2,li 502

(

have therefore rejected the conten-
tion that a jury finding of obscenitv
vel non is insulated from revieu. s-o
long "s the jury rl'a-< properll, in-
structed and there is some er-idence
to support its findings, holding that
substantive constitutional Iimita-
tions govern. In Jenkins v Georgia,
418 US 153, 159_16t, 47 L Ed-2d
642,94 S Ct 2250 l.974), based on an
independent examination of the evi-
dence-the exhibition of a motion
picture-the Court held rhat the film
in question "could not. as a matter
of constitutional laq', be found to
depict sexual conduct in a patently
offensive way. . . ." Id., at tef , af L
Ed 2d 642,94 S Ct 2Z50.6 And in irs
recent opinion identifling a nerr.cat_
eggly of unprotected expression-
child pornography-the ihurt ex-
pressly anticipated that an .,inde-
pendent examination" of the alleg-
edly unprotected material may b"e
necessary "to assure ourselves that

tute a forbidden intrusion on the
field of fre expression.", Nes, york
1^Fe_rb1r, supra, 45S US, at 774 n 2g,
73 L Ed 2d 11i9, 102 S Cr SB48(quoting \er+' York Times v Sulli-
van, supra. 376 US, at 285.11 L Ed
2d 666, 64 S Ct Zr0, 95 ALR2d 74t2t.

[12a, 13a, 14a] Hence, in Ner*.york
Times v Sulljvan, after announcing
the constitutional requirement for i
finding of "actual ma_lice" in certain
t-r'pes of defamation actions, it lr.as
onll'natural that rx'e should conduct
an independent rerie*' of the evi-
dence on the dispositive constitu-
tional issue. \\'e explained our action
a-. follou's:

"This Crcurt's dutl- is not limited
to the elaboration of constitutional
principles: rl'e musr also in proper
cases reriew the eridence to make
cerLain that those principles have
bee,r constitutional\ appiiea. Tnis
is such a case, particularll. since
the question is one of alleged tres-

the judgment 'does not consti-

(

s'hich is as distinct, recognizable, and classi6-
aAle gs poison iry Ls among'other plants. On
this basis Lhe constitutional question before
r'.. simply becomes r,r'hether .obscenity,, 

as an
abstraction, is protected b5. the F-#sr and
Fourteenth Amendments, and the question
whether a particdar book ma_v be suppressed
becomes a mere lmatt€r of ilrssificaiion, of'fact,' to be entiusted to a factfinder and
insulated from independent constitutional
judgment. But surely the problem cannot be
solved i') such a generalized fashion. Every
communicstion has an indiriduality ani
'value' of.its on::. The suppression of r-pu.ti._
ular writing or other tangible form of expres_
sion is, therefore, an individual matter, and in
the nature of things every such supp.ession
raises an individual constiiutional p.otle-, il
which a reviewing court must det€rmine forjfsel,/"whether the attacked expression is sup
pressable u'ithin constitutiona.l standar&.
Since those standards do not readily lend
themselves to generalized definitions, ti.," -n-stitutional problem in the last analvsis b+
come6 one of particularized juemenG nhich
appellate courLs must make for themselves.

"I do not think that rerieu.ing court's can
escape this responsibilitl-b-v sa_vIn6 that the
trier- of {acts. be it a jury or a j1fue, has
labeled the questioned -utt , -.- 

.o6scene,,
for, if 'obscenity' is to be suppres.ed, the
question *'hether a particular n'ork is of that
character involves not real]-v an issue of fact
but a question of constitutionat judgment of
the most sensitive and delicate kind.;

_-^26. Compare Hamling v United Stat€6, 4lg
us 87, r00, t2A,41 L Ed 2t 590, 94 S Ct 288?(l924t (holding that jury determination of
obscenity u'as supporled b-r'the etidence and
consistent r*-ith the applicqhle constitutional
standard n'hile revierx'ing petitionert sr,fi-
cienc5, of the er-idence arguments rqarding
other issues under the test of Glasser i
Unit€d Stat€s, 3fS US 60, S6 L Ed 680, 62 Sql 457 (194,r. S€e generally Jacoueitis v
phrg, 

^328 US rs4, 187_190. l, L Ed 2t ?s3,
Y S C, 7676, %, Ohio Ops Zl tOI (opinion oi
IJrennan, J.) (de novo revies. required in ob-
scenity cases); id,.. at %)2-%3, 12 L Ed fut 7gg,
Qa S Ct 1676, i)6 Ohio Ops 2i l0l Ot'arren, C.
J., dissentingt (intermediate standard of re.
view).

,-:i :lr. Y 'i. {1.'JL::q3d}q.;

521



U.S. SUPREME COURT REPORTS 80LEd2d

,l

(.' o

jr1 ..:r'rlr{Hl

28. Justie
Time, Inc. v
had merelyrt
ag"eed thatt}
itself the erl
decision betor
power need nc
rather indepe
should be lin
"unusual factr
of harrassmsn
45, 9r S ct 6&

!:
.-.-.., .o$l[

';-:**
,-i-. , !.: %1
,t.tah", r.)#ipts-

pass across ,the line between
speech unconditionally guaranteJ
and 

_ 
speech which may leeiti-

mately. b-e regulated' Sp"i."i 
-r'

Itandall, 3SZ US Stg, b2S t2 L Ed2d 1460, 78 S Ct 18321. I; L;where that line must 'be d.;;;,the r-ule is that *" ."r"-i.r" foi
ourselves the statements in issue
and - the circumstances u:rder
u'hich they were made to "u- . .
u'.hgt-her they are of a charactl.
whrch -the principles of the First
Amendment, as adopted b1. the
Due Process Clause bf tn" "Fo;;-
teenth Amendment, protect.' pen-
lglamp v Ftorida, 328 US 831,
335 [90 L Ed 7295, OO S Ct tozgi,
:_"9 Slso One, Inc. v Olesen, S5B-
yrs-37_1 [2 L Ed 2d 352, ZA'S-Ct
3641; Sunshine Book Co. r. Su-_
11e-r$rld, s5s US szz 12 L Ed rd
352, .78 S Ct 9651. We must ,make
an . independent examination oi

the q'hole record,' Edwards v
South Carolina, 872 US iZS, %S fiL Ed 2d 697, 85 S Ct oso1 ;r;;
assure ourselves that the judg_
ment does not constitute a forUiE-
den instrusion on the field of iree
expression." Nelr. york Times v
Sullivan, supra, 826 US, ai-jiiS, ri
!-!q 2d 686, 84 s ct zlo,'gs
ALRAI 1412 (footnot€ omitted).,

^ _In Time, Inc. v pape, 401 US 229,28 L U 2d 45, sr S 
'Ct 

Oae rigzr ),I
lase in which the federal Disi.ict
Court had entered a directed ,-;;i;;;
we again conducted an independeni
examination of the evidence on thequestioa of actual malice, labeling
our defiaition of ,.actual 

-"lice;, ,s i'tonstitutional rule,' and staGnthat the question before 
";-;.;whe-ther that rule had been 

"o..".riiapplied to the facts of the ca.e, ia.at 284, 28 L Ed Zd 45,91 S Ct'6b1.

Again r
inquirie
under tl
cases in
denial c
Constitu
by the r

but $ill
basis on
founded, '-

volving t
the Firs
ments or
defamati,
have fre<
vieu.'the
to deterrr
tutionallr
the plair:
ted)%

In IUon
us 265, 2
621 (1971
ter of cor
jur1, coulr
mine the
statement
a public :

the jurt's
dard "is u
respect to
holds a re
instrumen.
those 'veh,
times !rnp
Nerr'York
&l 2d 686

.27. t12b, 13bJ This Court '.ha-. an .oblica.
uon ro test ch-alle.nged judgments againsr iheguarantees of the First ana nou.t e"iiAmendments,, and in doiag ; iit, e;;cannot avoid making an independent 

"o"*iiu-uonal JudgTnent on the facl. of the case.,
{3gbett1s v Ohio 378 US 184, 1e0 tt2 i &t;;
i1lt& s ct-1626, 28 ohio op" za'iorl t'iis?i
loprnron ot .tsrennan, J.l. The simple fact isthat First Amendment questions oi ."o*iitul
rlonar^tacf compel this Court,s de novo re.
yr_q*. see lktwards v South Carolina, BZ2 US .2n, zss [e L &r 2i 6sz, es s ct-eitoirlirii i
Blackburn v Alabema, S6t US l9r, ;O'S'; ;i;L y .% 242, 80 S Cr 2741 0960).,, R.;"bl;; 'v.M_erromedra, 403 US 29, 54, 29 L A 2n m, I

91 S.q t8ll tlgzlr (opinion or A."n;. l l

lorned b.v Ir.g"I, C. J., and Blackmun, J.).see generail5.Adams v Tanner, 24{ US Egd.gry, 6-r l.Ed r3s6, sz s ct eoi ogizi6.#
oers., .r., dlssenting) (.,Ex facto jus oritur- Thatancieat rule must preuail io"oidei;;;;;;
may have a s)Et€m of living lar,.,,).In New York Times v Sulivan, we wenererientng.a state courtjudgrDent ent€red on aJury^verdict Respondent had contended thairne D€venth Amendment precluded an inde-pendent revie*-. R^ecognizing that the Sev;;;Amendrnent-s ban on reexamination of facls
522

:Id li a jurl applied ro a case coming fromtne starc courts. Chicag:o, Bur.linpnoi and
9\-.", n v Chicago, 166 US 226. ZiS_;aA, ii
!-Ed 9i9, 17 S Ci5S1 rt89?r; The .lu.it"*-r.
Murra5', 9_Sall 274, i9 L Ed'OSe OSOiit]L.
9,":l4l-t Parsons v Bedford, B p"i ,,i;'i;H 732 (1830), *'e found the urgui"r,i*itlrl
out merit _relring on our statemint in Fiske v
ll_ans:rs. 27.i US 360, 385_986, 7t L Ed IlO8,47 S Ct 655 (tgZ?) that review 

"f;"dir;;;fact is appropriate .,*.here a co.rclusion oilr*,
as t3 a Federal right and a finding of i.a ,r"so.intermiryled as to make it ,""""a".*. i"ordl to.pa.s. upon the Federal q;".1;;;: ;
anaJy?E the facts."

., [14b] the intermingling of lau. and fact inthe actuAt melice determiration is no gleater
irt "?t" or_ federat jury trials than i; ?"d";
bench trials. See supra at 

-, 
g0 L Ed 2d

-, 
and infua at g0 L Ed 2d

And, of cours€, the limitation onappellate review of factual determi"uiio^
under Bule.5?a) is no more stringent thanthe li'nitation on federal appellate ;;;;,-.f ;
Jury'6 lact't2t determinations-under the Sev_

Snth ,!m.e-ndment, r,hich commands that .,no

lact t.ned by jury, shall be otherwise r*xam_lned r_n aD-v Court of the United States, thah
according to the rules of the common larr,.,,

n'1



80LEd2d

Edwar& v
us 229, 235 [9

6801, so as to
at the judg-
tute a forbid-
e field of free
ork Times I'
JS, at 285, 11j ct 710, 95
- omittedt.,

. 401 US 279,
633 (1971), a

ieral District
'ected verdict,

independent
dence on the
lice, labeling
I malice" as a
and stating

fore us rryas
reen correctly
the case, id.,
91 S Ct 633.

a-*e coming from
Burlington and
226,243-246, 41
r; The Justices v
i 658 (1869); see

.. 3 Pet 433, 7 L
argument nith-

ement in Fiske v
6, 77 L &t 1108,
:w of findings of
:onclusion of law
;nding of fact are
it necessary, in

-eral question, to

'f law and fact in
:ion is no gleat€r
s than in federal

-,80LEd2.d.-,80LEd2d:he limitation on
i determinations
'e stringent than

llate revies' of a
under the Sev-

rnands that "no
:erwise reexm-
ied States, than
,mmon las'."

(

Again we stated that independent
inquiries "of this kind are familiar
under the settled principle that '[i]n
cases in u'hich there is a claim of
denial of rights under the Federal
Constitution, this Court is not bound
by the conclusions of lou'er courts.
but rrill reexamine the evidentian
basis on g'hich those conclusions arl
founded,"' noting that "in cases in-
volving the area of tension betu'een
the First and Fourteenth Amend-
ments on the one hand and state
defamation laws on the other, we
have frequently had occasion to re.
view'the evidence in the . . record
to determine whether it could consti-
tutionally support a judgment' for
the plaintiff " Ibid. (citations omit-
ted)r8

In Monitor Patriot Co. v Roy, 401
us 265, 277,28 L Ed 2d 35, 91 S Ct
621 (1971) the Court held "as a mat-
ter of constitutional lau"' that the
jury could not be allowed to deter-
mine the relevance of a defamatory
statement to the plaintifl's status as
a public figure. We explained that
the jury's application of such a stan-
dard "is unlikely to be neutral with
respect to the content of speech and
holds a real danger of becoming an
instrument for the suppression of
those 'vehement, caustic, and some.
times unpleasantly sharp attacks,'
New York Times, supra, at 270, L7 L
&l 2d 686, 84 S Ct 710, 95 ALR2d

(,i

28. Justice Harlan, the lone dissenter in
Time, Inc. v Pape, observed rhqt the Court
had merely refound the facts in the case, but
ageed that the C-ourt was free to examine for
itself the evidentiary bases upon s'hich the
decision below rested. He argued that this
power need not be exercised in ever_r case, but
rather independent revies' of the evidence
should be limited to cases in which certain
"unusual factors" exist, such a-s "allegations
of harrassment." 40f US, at 294, ?A t U U
45, 91 S Ct 633.

1; 411;):;,i;;i;*,,,,;.:$',,

. .i.

''ii,i'ri'i,t :
-ir';:

BOSE CORP. r'CONSIII{ERS UNION OF U.S.,INC.
&LA%502

1412, which must be protected if the
guarantees of the First and Four-
teenth Amendments are to prevail."
Ibid.,,

. [15] The requirement of indepen-
dent appellate revie\,\. reiterated in
Ner+'York Times v Sullivan is a rule
of federal constitutional laq'. It
emerged from the exigencl' of decid-
ing concrete cases; it is las. in its
purest form under our common lat4'
heritage. It reflects a deeply held
conviction that judges-and particu-
larly members of this Court-must
exercise such revie',\, ir order to pre-
serve the precious liberties estab-
lished and ordained by the Constitu-
tion. The question whether the evi-
dence in the record in a defamation
case is of the convincing clarit;' re-
quired to strip the utterance of First
Amendment protection is not merelv
a question for the trier -of faci.
Judges, as expositors of the Constitu-
tion, must independently decide
whether the evidence in the record
is sufficient to cross the constitu-
tional threshold that bars the entry
of any judgment that is not sup.
ported by clear and con\.incing proof
of "actual malice."

m
[16a] The Court of Appeals was

oorrect in its conclusions (1) that
there is a sigaificant diference be-

29. A similar ooncern s'ith the need to
"preserwe the right of free speech both from
suppression by tyrannous, well-merrhihg rDa-
lrrities and from abuse by irresponsible,.fa-
aatical minorities," Schaefer v United States,
251 US, at 482, 64 L Ed 360, 40 S Ct 259
(1920) (dissenting opinion) was identifed by
Justice Brandeis in explaining the special risk
in allo*'ing jurors to evaluate the character of
the "clear and present danger" presented by
arguably seditious speech.

523



':. ::<.".i.*i4#

U.S. SUPREME COURT REPORTS 80LEd2d

^ The factual portion of the Districtfrl.t': opinion ma1, fairly be'-;;;;
as. including the follou.inf nnai.,e.,(1) Seligson's actual perleption ?
the apparent movemeni of the ,ourJ
source at the time the Bose 901 u.as
tested was "along the u,all,' ratherthan "about the room"; (2) even
when the words in the disputed sen-
tence are read in the context of the
entire article, neither the ,.average
reader," nor_ -any other intellig;ii
person, would interpret the vrlord
"about" to mean .,acioss',; 

tA) Seiig_
son is an intelligent, weli educate?
person; (4) the words ..about the
lo9m" have the same meaning for
Seligson as they do for tt" popif.."
in_ general; and (5) although [" ;;;
otheru-ise a credible $,itn"ess, Selig-
son's testimony that (a) he aia "&'lkn9w what made me pick thaf par_
ticular choice of words;' and tb) ihatthe word "about', meant u.hat he
had drawn on the board, i. 

"ot .r"ai-
ble.

[17] \['hen the testimony of a wit-
ness is not believed, the tiier of fact
Tay,.simpll disregard it. Normally
the discredited testimony is not cori-
sidered.a sufficient basis-for a."*i"g
a-contiary conclusion. See Moore 

-i

9lesapeake & Ohio Railway C"" 5aO
u.]s 573, 575, 95 L M 547",7i b-ci428 (1951). In this case the trialjudge_found it impossible to beh;;
that Seligson continued to maintain

[18J Aside from Seligson's vain
attempt to defend his statement as a
p-recise description of the nature o]the sound movement, the odrl Lri-
dence of actual malice o" 

".t 
ict iire

District Court relied was the factthat the statement lvas an iaaccu_
..utg description of vrhat Seligson
had actuall5, perceived. SeUgrol- oi
course had insisted ..I know-what I
heard-" The trial court took him athi! word, and reasoned that ,ir; h;
did know q,hat he had heard, ..; il;
knew that the meaning of if,e ian_
guage employed did not accuratelv
reflect what he heard, he must havl
realized the statement was inagpq_
rate at the time he r*,rote it. ..Aaaly_
sis of this kind may be adequaL
r+'hen the alleged libei purports io bean eyewitness or other direct ac_
count of events that speak for them_
selves." Time, Inc. v pape, supra,

tween proof of actual malices and
mere proof of falsity, and (2) that
such additional proof is lacking in
this case.

lhat the word .,about', 
meant

"across." Seligson's testimonl. does
not-. rebut al_v infer.ence of actualmalice that the record oiherwise
supports, but jt L equall.t, clear thatrt does not constitute c]ear and con_vincing evidence of actual malice.
Seligson displa.ved a capacitl. for ra_
tronalization. He had made a mis-take and q'hen confro.rtea oit},--it,
he refused to admit it and 

"Grd]fastiy attempte<i to mai"t.io tt ai,,i
mistake had been maae_tt ri tt einaccurate wa-c accurate. That at-tempt failed, bur the fact that he
made the attempi does not establishthat he realized the inaccurr.l. ut
the time of publication.

I

I

i

I

I
i
I

i

(i
;

i

401
Ct€
sime
5L
adop
"one
inter
brisrl
scrip'
Time -

290,:
choic,
flec'tir
place
limit
broac
the I
indiri
mighr
intelL
knon'
in cpr
realiz

[1e]
repres
that i":

robust
York'
28LE
eally,
and th
from I
New )
Simila
instant
pabilir
nate t
ship ar
materi
153, li
ct 163
ment i
and..
freedor
the'bn
-. .to
Sulliva

(

39. [.16b] The burden of proving ..acrual
malice" requires the plaintitr to a"ion.iiut"wrth clear and convincing evidence that thede.lendant realized that his stat€ment s,asfalse.or.that he subjectivell 

"";;;; ";;ous doubt-as to the truth of his statement.:be, e. 9., New yorh Times v Sullivan, supra.

524

?16 U_Sr at 2f,0, rI L H 2t 686, 84 S G ?tO,
9-i .4fB2d \4L2; w also Gertz , R"b"-;
fefc\ s-uprg, 418 US, at s42, 4t L Ed 2d ;;-9;
91_S Ct 2997; St. Amant v Thompson, A€,0 ,-S
727,791,20 L Ed Zt %2.88 S C.[ rgX ,1968);
see ge-ncrally W. Prosser, Handbook on the
Law ofTorts ?71_772,92I (4rh ed t97l).



I
80LEd2d

''about" meant
testimony does
'ence of actual
r.cord otheru'ise
;ually clear that
e clear and con-
. actual malice.
capacity for ra-

,rd made a mis-
.fronted g'ith it,
.t it and stead-
naintain that no
made-that the
erate. That at-
"re fact that he
,€S not establish
errinaccuracy at

Seligson's vain
,. statement as a
f the nature of
t, the only evi-
:e on u,hich the
I u'as the fact
was an inaccu-
u,hat Seligson

ved. Seligson of
"I know what I
urt took him at
ed that since he

.rd heard. and he
ning of the lan-
i not accurately
'd, he must have
ent was inaccu-
*'rote it. "Analy-
ay be adequate
el purports to be
:ther direct ac-
speak for theu-
v Pape, supra,

2d 686, 84 S Ct 7r0,
so Gertz v Robert
342, 47 L H 2d 789,

Thompson,390 US
88 S Ct 1323 (1966);
. Handbook on the
4th ed 1971).

(

401 US, at 279,28 L Ed 2d 45, 91 S
Ct 633. See generally The Santis-
sima Tinidad, 7 Wheat 283, 338-339,
5 L Ed 454 082D. Here, hou'eser,
adoption of the language chosen was
"one of a number of possible rational
interpretations" of an event "that
bristled rrith ambiguities and de-
scriptive challenges for the u'riter.
Time, Inc. v Pape, supra, 401 US, at
290, 28 L Ed 2d 45, 97 S Ct 633. The
choice of such language, though re-
flecting a misconception, does not
place the speech bel,ond the outer
limits of the First Amendment's
broad protective umbrella. Under
the District Court's analysis, an1'
individual using a malapropism
might be liable, simpll, because an
intelligent speaker would have to
know that the term u'as inaccurate
in context, even though he did not
realize his folly at the time.

[19] The statement in this case
represents the sort of inaccuracy
that is commonplace in the forum of
robust debate to q'hich the New
York Times rule applies. ld., at 292,

.28 L Ed 2d 45,91S Ct 633. "Realisti-
cally, some error is inevitable;
and the difficulties of separating fact
from fiction iconvinced the Court in
New York Times, Butts, Gertz, and
Similar cases to limit liabilitv to
instances where some degree of cul-
pability is present in order to elimi-
nate the risk of undue self-censor-
ship and the suppression of truthful
material." Herbert v Lando, 441 US
153, 171-172, 60 L Ed 2d 115, gg S
Ct 1635 (1979). "fElrroneous state-
ment is inevitable in free debate,
and must be protected if the
freedoms of expression are to have
the 'breathing space' that they 'need
- . Lo surrive.' " New York Times v
Sullivan, supra, 376 US, at 271-272.

€

' .. r.: *+; "+-{r:, r.e+ :. *,. ir-,ft q,q1i fl |
.n

,trfl

BOSE CORP. v CONSUMERS UI{ION OF U.S., INC.
80 L Ed 2d 502

11 L &l 2d 686, 84 S Cr 710, 95
ALR2d 1412 (citation omitted).

[20] The Court of .Appeals enter-
tained some doubt concerning the
ruling that the Neu' York Times
rule should be applied to a claim of
product disparagement based on a
critical rer-ieu' of a loudspeaker sys-
tem. We express no view on that
ruling. but having accepted it for
purposes of deciding this case, we
agree uith the Court of Appeals that
the difference betq'een hearing vio-
lin soulil" move around the room
and hearing them wander back and
forth fits easily rnithin the breathing
space that gives life to the First
Amendment. \4'e ma1 accept all of
the purell' factual findings of the
District Court and nelertheless hold
as a mafter of lau' that the record
does not contain clear and convinc-
ing evidence that Seligson or his
emplol'er prepared the loudspeaker
article with kno'*.ledge that it con-
tained a false stat.ement, or s'ith
reckless diq1sg61fl of the truth.

[1b, 21a] It may well be that iilfl
this case, the "findilg" of the Dis-ll
trict Court on the actual . malice \l
question could have been set aside ll
under the clearly erroneous stan- [\
dard of revieu', and we share the l\
concern of the Court of Appeals that ll
the statements at issue tread the l\
line betn'een fact and opinion. More- ll
over, the aralysis of the central le /
gal question before us may seem out
of place i.n a case involving a dispute
about the sound quality of a loud-
speaker. But though the question
presented reaches us on a somewhat
peculiar n-avelength, vve reaffirm the
principle of independent appellate
review that we have applied un-
counted times before. We hold that
the clearll' erroneous standard of
Rule 52ra) of the Federal Rules of

525



E.i'.:.r'€i

U.S. SUPREME @T.IRT REPORTS 80LEd2d
Civil Procedure does not prescribe
the standard of review to be applied
in revie'*'ing a determination ti 

"._tual malice in a case governed by
New York Times v Sullivan.s'App"i_
Iate judges in such a case must exer-
cise independent judgment and de.
termine whether the record estab-

lishes actual malice nith convincing
clarity.

The judg:nent of the Coun of Ap
peals is affirmed.

It is so ordered.

The Chief Justice concurs in thejudgment.

tive
kno,,
re8a
thar'
ane
cour
mak.
Firsl
"agtr
thlD{
glvel
thi.6
not I
quir€
erl-v
dard
the "

In
clude
and c
dent'r
rrritt
about
know
reach
relyir
the <
mon-Y
On a1
whetl
erly r
legall:
maliq
to thr
nor tt
den ol
issue
proPn
tual c
dly.+
case. I
rebutt
sion tl
edge t
Instea
revies
merell
such, i

SEPARATE OPINIONS
Justice S'hite, dissenting.

- Although I do not believe that the"reckljss disregard', .o-po"".rt 
- 
oithe New York Times malice stan-

dard is a, question of historical fact, i
agree u'ith Justice Rehnquist thatthe actual knowledge 

"o*po"""isurely is. Here, the -District'CouJ
found that the defamatory statement
was u'ritten u'ith actual knowledge
of falsity. The Court of Appeals this
erred in lasing its diiagree-eniuith the District Court on its de
novo review of the record. The ma_jority is today equally i., e..o. I
would remand to the Court of Ap
peals so that it may perform its tasi
under the proper standard.

- Justice Rehnquisl, r,ith whom
Justice O'C,onnor joins, dissenting.

, F.:1" is more than one irony in
this "Case of the Wandering I;tr;_

ments," u.hich subject marter makesrt sound more like a cand:iate forinclusion in the .,aa"e"tu.es -oi
Sherlock Holmes,' than in 

" 
-;ase-

book on constitutional tu".- ft is
ironic in the first place that a consti_
tutional _principle s hich or.i6rinated
rn_New York Times v Sullir.an, 326
q_s 254, 11 L Ed 2d 686, As S Ci zlb,
95 ALR2d 1412 (1964) because of the
need for freedom to criricize the con-
duct of public ofEcials i. .ppliud he.Lto a magazine's false ltetements
about a commercial lc.,udspeaker sys-
tem.

It is also ironic that, in the inter-
est of protecting the First Amend-
ment, the .Court_ rejects the .,clearly
erroneous" standard of review mai_
9"t-"d by Fed Rule of Civ prcrc, iZ<alin favor of a "de novo', stand".t;i
review for the "constitutional facts,'
surrounding the "actual malise,' de-
termination. -But the facts disposi

(

. lt. [21b] There are, of course, many find_
Fgs_ of fact in a defamation case that are
irrele_v_ant to the constitutional standardt
New-York Times v Sr,Iivan and to which theclearly enoneous standard .f n"f" 

-Si"i'i"
fully applicable. lndeed, it is not ;;;;
T9c5sary to review the .,entire,, record tofulfill the function of indepenJen, ,pp"ifu[
review on the actual malige quesllan;'rather,
only. thoee portions of the record 

",f,lcfr "ei"Gto.the actual malice determination must beindependently assess€d. The i"de[n<ieJ Ivieu func-tion is not equivalent to.l;a" irJ,
1t1",* ol the ultimatr judgment itself, ins'hlch a reviewing court makes an original
526-

appraisal of all the evidence to decide
Ihut-h-"i or not it believes th"t judgm;;;
should be entered for plainri.f. ff *[ ,I"ie*_
pg (ourt determiaes that actr,il nralice has
been established with convincilg 

"1";by, 
th"judgment of the trial court ma-v or,ly L re_

versed on the ground of some other er.or oflan' oy 61gar1, err,oneous finrting of f""t. Al:
though the C.ourt of Appeals 

"tt"a tfrri it
must perform a de novo revien., it is plain
that the Court ol Appeals did not o""i"-
any factual finding to s.hich Rule 52rar woulJ
be applicable, but in-ct€ad engaged in aa inde_
pendent assessment only of ite e.taence gei-
mane to the actual malice determination.

rl:tl

€.;



..i--) : -.t:

80LEd2d

'.! convincinE:

lourt of Ap

.curs in the

.tter makes
ndidate for
:ntures o1"

in a case-
law. It is
at a consti-
originated
llivan, 376
I S Ct 710.
ause of the
ze the con-
rplied here
:tatements
reaker sys-

the inter-
st Amend-
re "clearly
\ale$, man-
Proc 52(a)
:andard of
tnal facts"
ralice" de.
ts disposi-

to decide
rt judgment'the review-
i ma.lice has
clarity, the
onl5'be re.

\er error of
of fact. Al-
:ted that it
it is. plain

lt overturn
52(a) g'ould
:n an inde.
.Cence ger-
3iion.

(

BOSE @Rp. v CONSUMERS UNION OF U.S., INC.

tive of that determin.tion-ufrl.t ?# 
", 

acruar marice.,, 692 F2d r89,knor+'led^gs or subjectiv" ,".f.f"., JiI rgz.regard for truth_involve .ro _r.uthan finding! about the mens .;;; . It is unclear to me just what thatan author, hndings *fri"ii-.o*fi"il determination by the- Court ;i A;
courts . are simply ill-prepiied to peals has to do with the mens rea
malie in any context, i"ct,iains t# conclusion necessary to the fi;d.;;Iust Amendment context. Uiless or...ac-tual malice,,and qith the DisI.actual 

malice,, no* _"*r;.i] trict Court,s finding of actuat-tnor.,i
thing diferent from tne aennitio" edge here.-In approving the C,ourt ofgiven to the term ZO v"...-uno't" Appeals' de. novo judgment on the
this Coun in New yor[ Time;i ;; -actuaf malice., question, for a]l the
not think that the .r"iltril""li # tactuat detail and rehearsal of teJi-
quirement of .,actr

err-r' can tr.i,,g in#rr,X'Xl :;;3 il:XI",T:t:d.;1":f JlLffi"J:'i;:
d.ard of factuZl i"rfJ".,rti.,r. if.,i, g:ll"-"o.T"r.to grips r+itb e.hat fac_
the "crearrv 

"r.on*u." .trra".a."-" ||il,rli':;, ili;,,T:r.n;^=;x
- 
In this case the T"t.ict court con- ment in this case ."p."r"nt" the sortcluded by- r,r'hat it found to u" .r"". of in,sgu.rcy that is commonplace

and-convincing eridence tnat iespon- in .the forum of robust debate todent's engineer Arnold seligson had which the Neu' york Times .uleluritten the defamatory .Lturn""i flpplies-," ante, at --, g0 L
f^:l Po*':, product 

"-ith ;;;;;i Pd 2.d szq-izi, suggesting thatKno*'ledge that it. was false. It the disparaging statement $?s per_reached that conclusion 
"*p*.tv 

haps not eu:un"f"l"u, oi at any ratere)1iag on its determinati;;'il; n-ot false urouglr.-'Oie paragraph
-!he 

cTqlb+ity of S"tig"o"[ tisi- later, we a.e toii th;;...as a marter
Xron-v.509 { Supp 12491 t276_titi. of.law... the record d"*;;;;_un appeal there was no issue as to !3.in gle-qr and convinciog e"iaenc"whether the District Cril il ;; that -setigson or his 

-Lmpjov". 
p.*erly--understood what findi.,g; ;;ie pared- the loudspeak"i-^rti"t" *ith

leg3,u1' sufficient to ot ur[li1;""iu"i kno*'ledge tt at ir conlined a farse
:1+S" nor was there any i;;; lFfment, or with .".UtL dir."g"ij
1"","i"1"."ff :X,*:ti"T*;l"T#;lH:lFll'"*lf ;ll;'f,r",",H
oen ol proof of "actual malice.', The question presented "reaches * or, ,issue.on appeal thus was only the somewhaf peculiar *uituogth,'--b,rI
propriety of the District c"il,". i;;: th.gt. is scarcely a rea60n ro. i.a"s-tual conclusion that so"e h"i ""tu- 

mitting the answer on uo equallyally proven "actual -rtice;'-io=ttis peculiar-wavelength.
case. Yet the Court of appeals ne"J In my vier*, the problem resultsrebutted the District .colrt's- "o"a"- # Jii: c"r.,;r'.i*lipt to treatsion that se'gson had actuar k";; *ilrt i.-here, and in other contextsedge that u'hat he printed **-f"If"". ;;;r. has been, a pure question ofInstead it concluded after de novo f";1, * something more than a factrerien- that Seligson'. lungu"g"-rou-l jl" s*""tted ..constitutional 

facr.,,meret_r. "imprecise,, and- th"at ; Th; c";';;r.#i;:.;ltts out thatsuch, it n'ould not "support an infer- ina'ep"noent appeuate reries, of

(

5n



,..,*;I'*ill

U.S. SUPREME COURT REPORTS 80LEd2d
fgcts underlying constitutional
claims has been sanctioned by previ_
ous decisions of this Court w-here ..a
conclusion of law as to a Federal
right and a finding of fact 

"." *
rntermingled as to make it neces_
6ary, in order to pass upon the Fed_
era) question, to analyzl the facts-i,
Ii*"_ v_K-a.nsas, 274 tJS 880, B8S_
386, 7t L Ed 1108, 47 S Ct os',s. Butin other contexts we have .f"rya
felt perfectly at ease leaving state iimind determinations, such as the
actua-l knor+'ledge and .recklessness
determinations involved here, to tri-

ers,_of fact r*ith onl1, deferential appellate review-for example, i"criminal cases q'here the briJ"n Li
p,rovinq, tho.se. facts is even g.;;t";
than- the "clear and conlircine,,

#*:f applicable under x"" {'oir.

Presumably any doctrine of .'inde.
pendent reliew" of facts exlsts" not
so that an_ appellate .o".i *il i"Jxorab.l1. place its thumb ori the
scares ln lavor of the part_v claiminethe constitutional right, Uni * tnr?percelved shortcomings of the trieroI lact b)' $'ay of bias or some othertactor may be compensated for.2 But

to me,
an ai
make
C,ourt
determ
mind
particu
may b,e

ice" de'
the ba
facts ir
that jur
on the

.credibil
author
Iama:
courts (

determi
such de
the tria

It is
recogrrii
speech I
ing the
possibili
inherenr
the danl
ance wi
Randall,
7460, 7E

New Yr
addresse
tected -s1
neous f,
burden
on the p
pression.
rx'ho, in r

priatener
the "act
conclude,

qrscer
ment c
restricl
late de

(

l\

_-l; In ,,,:-Oting to justify independent appellate revie* of the .,actual 
malice,, determi_nation, the majority draws an analogy. toother cases u.hich have attempted to jln""

cat€gories of unprotected .pu..ir,."u.h ,-. ob_scenity and child pornograpt y ."".,1"*
rork r.|'erber,456 US 747,1?4 n 2g, ?3 L Ed2d 1113, 102 S Ct 33a8 (1982); frlilf". r, Ca-I
!^t^, 1i! us 15, sz L H 2e arri, gj s?
26O7 Q97S\ Rorh v Uniued StaGs, iSn"US
4J6. I L Ed 2d 14e6, 77 S Cr rsoa, ra bn"il
Ops 2d 331 (1952), and 

""s.. irrol,ri.,g *o.d"inciting anger or violence, Hess v fiai""f411 US 10s, BB L H, 2d A03, 94 S Ct'l;?(1973) (per curiam); Street v I,i"* yo.l! i9;y.s 576, 22 Lil 2d 5?2,8s S O rssa iie6er,
Uh€plrnsky v New Hampshire, BI5 US 56g, gd
I- Ed 1031, 62 S Ct rcA e}qZt. f, mu -tol.hor*,ever, those cases -ore clea.lv ir;;;il;l<i1d:f +*"a questions of f."t 

""a 
fr", wfjt

13ll f9r de novo appellate review than do iheNew.York Times.iactual malice', 
"r*, *f,i.isimply involve questions of pure histoil*i

fact.
For example, with respect to the obscenitv

cases, 
_appellate courts perhaps a.e iust alcompet€nt as are triers of fact to -*" a"t"i-minations about *.hether material 

"pp"uf" 
;'pru rien t in terests," s,herher it a"pi"ii 

-""i 
rJ

:Jg-l* in a .'patently 
o$ensive,; way, andwnerber the material lacks serious irtisticvalue, Miller v California, supra, at 24., g7 L&1.2d {r9,93 S Ct 2602. L tti *""ar-iri,il*g-

violence cases, the necessary a"t .-i"uti-orri,
equally capable of de norq appelate revil*,are whether words are .,likel1i 

1e p;;;;k;-;;;
lleyce person to retaliation," Stleet v Nen.York, supra, at 592, 22 L A 2d SZZ,-ag 3'"CiI354 (emphasis addedr 1qu61lng Cf,rpfii.ty1,
528

Neu [f26p5[iye, supra. at b74, g6 L Ed l03f,62 S Ct ?66r, or whether the .,rational lnllil
."_"9" f:-,glt,.the imporl of the languag.';i. ii,"tlr ts lrke.l). to produce imminent di.errder.,,
.dess v lndrana. supra,.ar 1O9, Ag L &l 2d 903.
.1 q Ct 326. None of those 

"** ;"q;;-;;\
kind bf pure historical ru"tu"r a*t"iJrl;ltio" llthat the Neu. York fi.". .r.". l*;,"; I
determination as to the ,.,uul 

""Ui*ii_ *ri Ilof mind of a particular person at ii^iiiii, lltrme. -J

-_2. lhe Court correctly points out \qt inNew York Times v Sutiivan, 
""p.u, [-i_ducted iadependent appellate J;;;. ;;;

racts un_derlying the ..actual 
malice,, determi-

Dation. It is notable, ho*.ever, that New yeri.
't lmes c€rne to this Court from a state courtafter a jury trial, and thus p.*.ri"a tfr"
:|.-.:"gut ca!9 for_ irdependent iaa_findrng-by
thrs Lburt. The fact-finding process eDgageih b.y ." jury rendering a general 

"""li"i i.much less evident to the naled eye and thusmore suspect than the fact-findinS p-G
gnCaq.q in by a trial juftre who -it& *.it-
t€n tn.rihgs as here. Justifying independent
revien' of facts found by i jurr* i"' ;;;;
because of the absence of a aritin-ct;,r*- i."no" in.a general jury verdict * to u 6;Iar iachral inquiry and because of 'the 

ex_tremel-v narrow latitude allowed appe-Ltatc
courts to reriew facts found by a iury atcommon law. f5us it is not 

"".piri"ini ti .uthat.earl;- cases espousing the nbtion -of i"a*pendent appellate revier of ..66n5[l[utisnnl
facts," such as Fiske, supra, and New york'lrmes, 6upra. should have arisen out of thecont€xt of jury verdicts and that thev thenwere qglhaps only reflexivel_v applied i, otf,ei
q ui tc differen t cont€xts uttl.,irui fu rtfrei arJy_

CC

sis. See Tir:
u 2d 45,9



30LEd2d

rential ap
lmple, in
burden of

en grehter
onvincing"
New York

e of "inde-
exists, not
t may ine-
b on the
y claiming
,ut so that
f the trier
-.ome other
.d for.2 But (
16 L Ed 1031,
'ational infer-
:uage" is that
--nt disorder."
- L Ed 2d 303,
s requires the
letermination
es require: a
:bjective state
.t a particular

s out that in
uPra, we con-
revies' of the
.lice" determi
rat New York
a state court

presented the
fact-finding by

-ocess engaged
eral verdict is
r eve and thus a
nding, process t10 makes wTlt-

-g independent
jury is easier
stinct "yes" or
:s to a particu-
rse of the ex-
,wed appellate
by a jury at
rprising to me
notion of inde
''constitutional
.nd New York
ien out of the
hat they then
.rplied in other
further analy-

o

BOSE CORP. v CONSUMERS UNION OF U'S'' INC'
N LEd 2d 502

to me, the only shortcoming here is
an appellate court's inabilitY to
make the determination which the
Court mandates todaY-the de novo
determination about the state of
mind of a Particular author at a
particular time. Although there well
may be cases where the "actual mal-
ice'l determination can be made on
the basis of objectively revieu'able
facts in the record, it seems to me
that just as often it is made, as here,
on tlie basis of an evaluation of the
credibility of the testimony of the
author of the defamatory statement'
I am at a loss to see how aPPellate
courts can even begin to make such
determinations. In any event' surely
such determinations are best left to
the trial judge.

It is of course true as the Court
recognizes that "'*'here particular
speech falls close to the line separat-
ing the lau'ful and the unlas'ful, the
poisibility of mistaken fact-finding-
inherent in all litigation-rn'ill create
the danger that the legitimate utter-
ance will be penalized." Speiser v
Randall, 357 US 513, 526, 2 L M 2d

1460, ?8 S Ct 1332 (1958). But the
New York Times rule adequatelY
addresses the need to shield . Pro
tected speech from the risk of erro
neous fact-finding bY Placing the
burden of proving "actual malice"
on the party seeking to penalize ex-
pression. I agree *"ith Justice Harlan
u'ho, in commenting on the inaPPro
priateness of de novo fact review of
the "actual malice" determination,
concluded that he could not

"discern in those First Amend-
ment considerations that led us to
restrict the States' powers to regu-
Iate defamation of Public officials

any additional interest that is not
sen'ed by the. actual-malice rule of
Neu' York Times, supra, but is
substantialll' promoted b1' utilizing
[an appellate court] as the ulti-
mate arbiter of factual disputes in
those libel cases q-here no unusual
factors, such as allegations of ha-
rassment or the existence of a jurY
verdict resting on erroneous in-
structions . are Present." Time,
Inc. v Pape, 401 US 2i9,294,28 L
Ed 2d 45, 91 S Ct 633 t1971 ) (FIar-

lan, J., dissenting).

I think that the issues of "falsity"
and "actual malice" in this case may
be close questions, but I am con-
rinced that the District Court, q'hich
heard the principal u'itness for the
respondent testifY for almost six
da1's during the trial, fully under-
stood both the applicable larr and its
role as a finder of fact. Because it is
not clear to me that the de novo
findings of apPellate courts, with
only bare records before them, are
likely to be an1' more reliable than
the frndings reached by trial judges,

I cannot join the majority's sanction-
ing of factual second guessing bY

appettate courts. I believe that the
piimary result of the Court's holding
today will not be greater protection
for First Amendment values, but
rather only lessened confidence in
the judgments of lower courts and
more entirell' factbound appeals'

I continue to adhere to the view
expressed in Pullman-Standard v
Sv'int, 456 US 273,287,72L M 2d
66, 102 S Ct 1781 (1982), that RuIe
52(a) "does not make exceptions or
purport to exclude certain categories
of factual findings from the obliga-

sis. See Time, Inc. v Pape' 401 US 279' 28 L
EA 2d 45,91 S Ct 633 (1971) (involving appel-

late revieq' of a District Court's directed ver'
dict).

P,ii 1'a: .6:r*

,: r' -: .€-:r:;a,..rr. i::.it{!-rr

529



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US. ST'PREME @I'RT REPORTS 80LEd2d

T:l ".f 
a coirrt of appeals to accept a

district . court'6 findings ,roi"",
dearly errdn@us." ttere is no.rea-
soo- P depart from that rule here,
and I would therefore reverse and

remaad this case to the Court of
Appeals eo t,hat it may apply the'tlearly erroneous', stairaani irf "*y9w to the factual fiodings of the
District Court-

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