Bose v. Consumers Union of the United States Motion for Leave to File and Brief of the American Civil Liberties Union and the Civil Liberties Union of Massachusetts as Amici Curiae

    No. 82-1246.

In the
Supreme Court of the United States.■<■■*** • ,-..***,*.*>...**!..........

snip
O ctober T erm , 1982.

j> L  .W  ‘ -  -r'*TBOSE CORPORATION,
P etitio n er ,

v.
CONSUMERS UNION OF UNITED STATES, INC., 

R espo n d en t .

O N  W R IT O F CERTIORARI TO T H E  U N ITED  ST A T E S COURT O F A P PE A LS 

FOR T H E  FIR ST C IR C U IT.

Motion for Leave to File Brief and Brief of the American Civil 
Liberties Union and the Civil Liberties Union of 

Massachusetts as Amici Curiae.

J am es F . M c H u g h ,
Counsel o j Record 

J a n e  E . Ser e n e ,
B in g h a m , D a n a  &  G o uld ,

100 Federal Street,
Boston, Massachusetts 02110. 

O j Counsel: (617) 357-9300
C h a rles S. S im s ,
A m erican  C iv il  L iberties U nio n  

F o u n d a t io n ,
132 West 43rd Street,
New York, New York 10036.
(212) 944-9800

J o h n  Re in s t e in ,
C iv il  L iberties U n io n  of 

M a ssa c h u se t t s ,
47 Winter Street,
Boston, Massachusetts 02108.
(617) 482-3170

BA T EM A N  *  SL A D E , IN C . B O ST O N , M A SSA C H U SET TS



No. 82-1246.

In the
Supreme Court of the United States.

O ctober  T erm , 1982.

BOSE CORPORATION,
P etitio n er ,

v.

CONSUMERS UNION OF UNITED STATES, INC., 
R espo n d en t .

O N  W RIT OF CERTIORARI TO  T H E  UN ITED  STA TES COURT O F A PPEA LS 

FOR T H E  FIRST CIRCU IT.

Motion of the American Civil Liberties Union and the
Civil Liberties Union of Massachusetts for Leave to File 

Brief as Amici Curiae.

The American Civil Liberties Union and the Civil Liberties 
Union of Massachusetts respectfully move for leave to file the 
attached brief as amici curiae. The respondent, but not the 
petitioner, has consented to the filing of this brief.

The American Civil Liberties Union (hereinafter “ ACLU”) 
is a nationwide, non-partisan organization of over 250,000 
members. Founded over sixty years ago, ACLU is dedicated 
to preserving and protecting the fundamental principles em­
bodied in the Bill of Rights. The Civil Liberties Union of 
Massachusetts (hereinafter “ CLUM”) is one of ACLlTs state 
affiliates, a private, non-profit, membership-only organization



having approximately 9,500 members in the Commonwealth 
of Massachusetts. CLUM has as its purpose the preservation 
of rights and liberties protected both by the Constitution of the 
Commonwealth of Massachusetts and the Constitution of the 
United States. For a considerable time, both ACLU and 
CLUM have been actively involved in efforts designed to en­
sure that the people of the United States and of the Common­
wealth have the broadest possible latitude within which to ex­
ercise their undoubted right to speak with impunity about all 
matters of public interest or importance.

Amici believe that the opinion and judgment of the district 
court in this case were in irreconcilable conflict with the over­
riding principle that speech on public affairs “should be unin­
hibited, robust and wide-open.” New York Times Co. v. 
Sullivan, 376 U.S. 254, 270(1964). The power of the Court of 
Appeals to remove that conflict by making an independent 
constitutional judgment that the record did not contain “clear 
and convincing” evidence of respondent’s knowledge of falsity 
at the the time of publication, represents an important aspect 
of the protections for First Amendment rights this Court has 
historically endorsed. Indeed, independent review of “consti­
tutional facts” and of the powers by which those facts are 
found is but a reflection of a reviewing court’s obligation to en­
sure that constitutional principles are constitutionally applied. 
To entrust to the trial court near-final power to find the facts 
and to determine that the facts have been properly found 
would create a grave danger of erosion of constitutional rights 
through distorted fact-finding. Independent review of the 
type exercised by the Court of Appeals here is the only sure 
way to check that danger.

In sum, amici believe that resolution of the “procedural” 
issues riding on the surface of this case can have very impor­
tant consequences for the substantive First Amendment rights 
those procedural issues concern. To present the foregoing 
views in this important First Amendment case, ACLU and



CLUM respectfully move for leave to file the attached brief as 
amici curiae.

Respectfully submitted,
J am es F . M cH u c h ,

Counsel of Record 
J a n e  E. S eren e ,
B in g h a m , D a n a  &  G o u ld ,

100 Federal Street,
Boston, Massachusetts 02110. 

(617) 357-9300

Of Counsel:
C h a rles S . S im s ,
A m erican  C iv il  L iberties U nion  

F o u n d a t io n ,
132 West 43rd Street,
New York, New York 10036. 
(212) 944-9800

J o h n  R e in st e in ,
C ivil  L iberties U n io n  of 

M a ssa c h u se t t s ,
47 Winter Street,
Boston, Massachusetts 02108. 
(617) 482-3170



Table of Contents.

Interest of amici 
Statement of the case 
Summary of argument 

Argument
I. Introduction
II. The court of appeals properly made an inde­

pendent judgment concerning whether “ actual 
malice” had been shown on the record by clear 
and convincing” evidence
A. The court of appeals’ independent judgment 

was properly exercised because of its obligation 
to insure that constitutional principles are con­
stitutionally applied

B. Even if the rule requiring proof by “clear and 
convincing” evidence is not of constitutional 
dimension, the court of appeals properly exer­
cised its independent judgment to determine 
whether that standard had been met

III The court of appeals correctly concluded that 
Bose had not proved CU’s actual malice by clear 
and convincing evidence 

Conclusion

Table of Authorities Cited.

C a se s .

Addington v. Texas, 441 U.S. 418 (1979) 15, 16, 18n, 20, 23

Ashe v. Swenson, 397 U.S. 436 (1970) ^
B aum gartn er v. U nited States, 322 U.S. 665(1944) 21,23

Beaumont v. Morgan, 427 F .2d 667 (1st Cir. 1970) 25n



11 T A B L E  O F A U TH O R ITIES CITED .

Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967) 10
Branti v. Finkel, 445 U.S. 507 (1980) 11
Cantwell v. Connecticut, 310 U.S. 296 (1940) 13n
Carroll v. President & Commissioners of Princess Anne,

393 U.S. 175(1968) 15
Chambers v. Florida, 309 U.S. 227 (1940) 12n
Chaunt v. United States, 364 U.S. 350 (1960) 21
Colorado v. New Mexico,____U .S .____ , 51 U.S.L.W.

4045 (U.S., December 13, 1982) (No. 80, Orig.) 20n
Columbus Board of Education v. Penick, 443 U.S. 449

(1979) 16,17
Connick v. M yers,____U .S .____ , 51 U.S.L.W. 4436

(U.S., April 20, 1983) (No. 81-1251) 11, 14n
Costello v. United States, 365 U.S. 265 (1961) 21
Cox v. Louisiana, 379 U.S. 536 (1965) 12
Culombe v. Connecticut, 367 U.S. 568 (1981) 12
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) 10
Dayton Board of Education v. Brinkman, 443 U.S.

526 (1979) 16

Drope v. Missouri, 420 U.S. 162 (1975) 12n, 14
Eaton v. City of Tulsa, 415 U.S. 697 (1974) 13n
Edw’ards v. South Carolina, 372 U.S. 229 (1963) 12
Elrod v. Burns, 427 U.S. 347(1976) 11
Federal Insurance Co. v. Summers, 403 F.2d 971 (1st

Cir. 1968) 25n
Fedorenko v. United States, 449 U.S. 490 (1981) 20, 22
Fiske v. Kansas, 274 U.S. 380 (1927) 12n, 23n
Freedman v. Maryland, 380 U.S. 51 (1965) 15
FTC v. Standard Oil Company, 449 U.S. 232 (1980) 20n
Garrison v. Louisiana, 379 U.S. 64 (1964) 25, 27n
Gertzv. Robert Welch, Inc., 418 U.S. 323(1974) lOn



T A B L E  O F A U TH O RITIES CITED . Ill

Greenbelt Cooperative Publishing Association v. Bres- 
ler, 398 U.S. 6(1970) 10

Haynes v. Washington, 373 U.S. 503 (1963) 12n, 14
Helvering v. Tex-Penn Oil Co., 300 U.S. 481 (1937) 23n
Henderson v. Morgan, 426 U.S. 637 (1976) 12n
Herb v. Pitcairn, 324 U.S. 117 (1945) lln
Herman & MacLean v. Huddleston,____U .S-------- 51

U.S.L.W . 4099 (U.S., January 24, 1983) (Nos. 81- 
680, 81-1076) 20, 23

Hess v. Indiana, 414 U.S. 105 (1973) 13n
In re Little, 404 U.S. 553(1973) 13n
In re Winship, 397 U.S. 358 (1970) 16, 20, 23
Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,

456 U.S. 844(1982) 17
Jacobellis v. Ohio, 378 U.S. 184 (1964) 13n
Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert, denied,

382 U.S. 87*9(1965) 25n
Jenkins v. Georgia, 418 U.S. 153 (1974) 13n, 14
Kois v. Wisconsin, 408 U.S. 229 (1972) 14, 15
Louisiana v. Cox, 244 La. 1087, 156 So. 2d 448 (1963) 12n
McNabb v. United States, 318 U.S. 332 (1943) 28
Miller v. California, 413 U.S. 15(1973) 14
Moore v. Chesapeake & Ohio Ry., 340 U.S. 573 (1951) 25n
Moore v. Michigan, 355 U.S. 155(1957) 12n
NAACP v. Claiborne Hardware C o . ,____U.S. ------ ,

50 U.S.L.W . 5122 (U .S., July 2, 1982) (No. 81-202) 13, 14n
National Association of Letter Carriers v. Austin, 418

U.S. 264(1974) 10
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

6, 7, 8, 9n, 15 et seq.
Nishikawa v. Dulles, 356 U.S. 129(1958) 21,24



IV T A B L E  O F A U TH O R ITIES CITED .

NLRB v. Gotham Industries, Inc., 406 F.2d 1306 (1st
Cir. 1969) 25n

NLRB v. Joseph Antell, Inc., 358 F.2d 880 (1st Cir.
1966) 25n

Pennekamp v. Florida, 328 U.S. 331 (1946) 13n

Pickering v. Board of Education, 391 U.S. 563 (1968) 11
Pullman-Standard v. Swint, 456 U.S. 273 (1982) 17, 18, 22n, 23

Rogers v. Lodge, ____U.S. _____, 50 U.S.L.W. 5041
(U.S., July 1, 1982) (No. 80-2100) 17

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) 10, 15
St. Amant v. Thompson, 390 U.S. 727 (1968) 10, 25, 27n

Santosky v. Kramer, 455 U.S. 745 (1982) 18n, 20, 23
Schneiderman v. United States, 320 U.S. 118 (1943) 20, 21
Smith v. California, 361 U.S. 147 (1959) 14n
Speiser v. Randall, 357 U.S. 513 (1958) 15, 18
Steadman v. SEC, 450 U.S. 91 (1981) 23
Stovall v. Denno, 388 U.S. 293 (1967) 12n
Time, Inc. v. Johnston, 448 F.2d 378 (4th Cir. 1971) 6
Time, Inc. v. Pape, 401 U.S. 279 (1971) 8, 9, 26
Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969) 13n
United Mine Workers v. Gibbs, 383 U.S. 715 (1966) 13
United States v. United States Gypsum Co., 333 U.S.

364 (1948) 17n
United States v. Wade, 388 U.S. 218 (1967) 20n
Vance v. Terrazas, 444 U.S. 252 (1980) 23
Watts v. Indiana, 338 U.S. 49 (1949) 14
Watts v. United States, 394 U.S. 705 (1969) 13n
Woodby v. Immigration & Naturalization Service,

385 U.S. 276(1966) 20



T A B L E  O F A U TH O RITIES C ITED . V

St a t u t e s .

United States Constitution 
First Amendment 
Fourteenth Amendment 

Due Process Clause 
Fed.R.Civ.P. 52(a)

2, 3, 6, 8, 9 et seq.

9, 12n 
7, 17, 18n, 19,28

M i s c e l l a n e o u s .

Kalven, The New York Times Case: A Note on “ The 
Central Meaning of the First Amendment,” 1964
Sup. Ct. Rev. 191 14n

Monaghan, First Amendment “ Due Process,” 83 Harv.
L. Rev. 518(1970) 14n, 15

Restatement (Second) of Torts
§ 580A, comment d 15n
§ 581A 14n

Schauer, Fear, Risk and the First Amendment: Unravel­
ling the “Chilling Effect,” 58 B.U. L. Rev. 685 
(1978) 20



No. 82-1246.

In the
Supreme Court of the United States.

O ctober  T erm , 1982.

BOSE CORPORATION, 
Pe tit io n er ,

v.

CONSUMERS UNION OF UNITED STATES, INC., 
R esp o n d e n t .

ON W RIT O F CERTIORARI TO  T H E  U N ITED  ST A T ES COURT O F A PPEA LS 

FOR T H E  FIR ST C IRCU IT.

Brief of the American Civil Liberties Union of Massachusetts
as Amici Curiae.

Interest of Amici.

The interest of amici curiae is set forth in the motion at­
tached to this brief.

Statement of the Case.

Amici adopt the statement of the case presented by respond­
ent, Consumers Union of United States, Inc., (hereinafter 
“ CU”).



4.

2

Summary of Argument.

This is a case in which the United States District Court for 
the District of Massachusetts, after a lengthy bench trial, con­
cluded that the First Amendment to the Constitution of the 
United States did not protect CU’s use of the word “ about” to 
describe the location from which the sound of musical in­
struments appeared to come when one listened to those in­
struments played through loudspeakers manufactured by peti­
tioner, Bose Corporation (hereinafter “ Bose”). In reversing 
that judgment, the United States Court of Appeals for the First 
Circuit concluded, after its independent review of the entire 
record, that the First Amendment did protect CU’s use of the 
word because Bose had not proved by “clear and convincing 
evidence” that CU knew it was making a false statement of 
fact when that word was published (pp. 4-7).

In coming to an independent judgment that the record con­
tained no “clear and convincing evidence” of CU’s knowledge 
of falsity at the time the relevant word was published, the 
court of appeals exercised the proper scope of review in cases 
like this. As is discussed in Part IIA of this brief, the require­
ment that knowledge of falsity be proved by “clear and con­
vincing evidence” is a requirement which stems directly from 
the First Amendment itself. Indeed, that requirement is an 
important element of the process by which speech protected 
by the First Amendment is separated from speech which is 
not.

Becognizing its obligation to ensure that constitutional prin­
ciples are constitutionally applied, this Court has, on numer­
ous occasions, reviewed the entire record in cases involving 
First Amendment freedoms to come to an independent consti­
tutional judgment on the facts the record contains. Sometimes 
it has done so because the constitutional rule of decision would 
admit of no other approach. More often, it has done so 
because the rule of decision, although couched in fact-like 
form, was not fully self-defining and thus required an inde-

l



3

pendent constitutional judgment in order to ensure that speech 
had not been impermissibly penalized.

Undoubtedly, the process by which “constitutional facts” 
are found in the trial court has important consequences for the 
underlying constitutional rights at issue. The rule requiring 
proof by “clear and convincing” evidence in cases like this is an 
important part of-that process. But application of the rule is 
not a ministerial task. The terms themselves contain no cer­
tain guide to their precise application and thus gain meaning­
ful form only through application to individual cases. The 
obligation to ensure that constitutional principles are constitu­
tionally applied thus requires exercise of independent judg­
ment by a reviewing court so that the “clear and convincing” 
rule remains the barrier against erosion of the First Amend­
ment freedoms it was designed to be (pp. 7-19).

Even if, unlike the “actual malice” standard it is designed to 
serve, the “clear and convincing” rule does not stem from the 
Constitution itself, Part IIB of this brief discusses why inde­
pendent review of the type exercised by the court of appeals 
was nonetheless proper. The “clear and convincing” rule em­
bodies a choice concerning the outcome of legal disputes, a 
choice based on the relative importance of the values those 
disputes involve. The need to ensure proper recognition of 
those values historically has triggered independent review by 
this Court of the basis for trial-court findings the “clear and 
convincing” rule governed. Indeed, the values inherent in the 
rule undoubtedly would be exposed to serious erosion were its 
execution left to the virtually unreviewable care of triers of 
fact, those whose conduct it is intended to guide (pp. 19-24).

Finally, Part III of this brief discusses the court of appeals’ 
proper conclusion that the record in this case simply did not 
contain “clear and convincing evidence” of CU’s knowledge of 
the falsity of the word “about.” The trial court’s contrary con­
clusion proceeded on its disbelief of one of CU’s employees 
coupled with its belief that that employee was too intelligent to 
accidentally misuse the word. But disbelief of testimony does



4

not amount to affirmative evidence of a contrary fact, much 
less “clear and convincing evidence” of the type here required. 
Moreover, the CU employee whose testimony the trial court 
disbelieved was not the one who first used the relevant word. 
Finally, in relying on the ordinary meaning of the word 
“about,” the trial court impermissibly substituted an objective 
standard of knowledge for the subjective standard the Consti­
tution requires (pp. 24-27).

Argument.

I. In tro d u c tio n .

After an “exceedingly protracted period of pretrial discov­
ery” and after nineteen days of trial (App. X. 39), the United 
States District Court for the District of Massachusetts, sitting 
without a jury, concluded that CU falsely had used the word 
“about” in its six-hundred and fifty word article about Bose 
stereophonic speakers. The court appeared to conclude that 
CU should have used the word “ across,” for “across” the room 
or “ along the wall,” and not “ about” the room, is where it 
found that the sound of musical instruments played through 
the Bose speakers had “wandered” (App. X. 141-142).1 The 
court then concluded that CU knew that its use of the word 
“about” was false because Arnold Seligson, one of two CU em­
ployees who heard the wandering sounds, was too intelligent 
to “ interpret[ ] a commonplace word such as ‘about’ to mean 
anything other than its plain, ordinary meaning.” (App. X. 142.)

1 The word “about” appeared in the following sentence: “Worse, indivi­
dual instruments heard through the Bose system seemed to grow to gigantic 
proportions and tended to wander about the room.” (App. X. 49.) The 
court found that Bose had not proved that the phrase “seemed to grow to 
gigantic proportions” was false (App. X. 88-99). The court also found that 
the use of the verb “wander” was accurate (App. X. 102).



5

Subsequently, after another three days of trial, judgment in 
the amount of $115,000 entered in favor of Bose.2

In the main, the CU article at issue was a verbal translation 
of various aural phenomena experienced by ClTs employees 
while listening to Bose speakers. As the district court itself 
seemed to recognize, such efforts at translation are bound to 
breed at least some imprecision (App. X. 87 & n.29). See also 
J.A. 328-330. Indeed, before concluding that the word 
“ about” had been falsely used, the district court felt it neces­
sary to create the lexicon it intended to use while analyzing the 
truth or falsity of the statements CU had made (App. X. 
87-88). The court’s perceived need to do so undoubtedly 
reflected the fact that “ there are no words to describe all of the 
aesthetic aspects of sound.” (J.A. 336-337 (Testimony of 
Amar Bose).)

The judgment in favor of Bose thus came as the result of an 
article which attempted to verbalize non-verbal phenomena. 
It came as the result of an article in which, because of the in­
herently subjective nature of any effort to verbalize non-verbal 
phenomena — particularly phenomena received from “unique 
and unconventional” stereo speakers (App. X. 43) — the state­
ment at issue may well have been a statement of opinion and 
not of fact.3 It came as the result of a statement which, in 
fact, may well have been true.4 And it came as the result of a

2 With interest and costs, the total amount of the judgment exceeded 
$200,000 (J.A. 344-345).

3 The court of appeals simply assumed for purposes of its decision that the 
statement was one of fact and not of opinion (App. X. 15-18, 20). That, as 
the court itself recognized, was a large assumption. The difference between 
hearing “instruments [which] tended to wander . . . about the room” and 
hearing, for example, “ instruments which danced from place to place like a 
fawn through the green spring meadow” is the difference between someone 
who liked what he heard and someone who did not.

4 Again, the court of appeals assumed for purposes of its decision that the 
statement was false (App. X. 19-20), although it expressly recognized that it 
may well have been true. Id. Once again, the court’s ambivalence was ap­
propriate. The record clearly reveals that there was some depth to the



6

conclusion by the district court that the “plain, ordinary 
meaning” of a “commonplace word such as ‘about’ ” (App. X. 
142) was too clear to admit of mistake.

Thus viewed, the district court’s opinion and judgment are a 
paradox. On one hand, the court’s unchallenged conclusion 
that Bose was a “ public figure” for purposes of this action5 
necessarily was a conclusion that the First Amendment per­
mitted — indeed, encouraged — speech about the Bose speak­
ers which was uninhibited, robust and wide-open [sometimes 
including] vehement, caustic and . . . unpleasantly sharp at­
tacks.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 
(1964). That, after all, is the guiding principle which the 
rules regarding liability of those who speak about “public 
figures” were designed to serve.

On the other hand, the judgment in this case is an implicit 
endorsement of an exceedingly narrow and crabbed view of 
what the First Amendment protects, a view at war with the 
basic principle discussed in New York Times itself. If per­
mitted to stand, that judgment and the method used to reach 
it would shrink the boundaries of the First Amendment to an 
area encompassing only “an arid, dessicated recital of bare 
facts.” See Time, Inc. v. Johnston, 448 F.2d 378, 384 (4th 
Cir. 1971). Indeed, in cases like this one where the “bare

wandering heard by Seligson and the other CU employee who listened to the 
Bose speakers (J.A. 254-255, 342, 343; App. X. 100). Indeed, to the extent 
that the word “across” or the word “along” implies a strictly linear move­
ment, that word was itself not a precise description of what the two men 
heard.

5 Not having challenged the trial court’s conclusion in the court of appeals, 
Bose cannot, and has not, challenged it here. Bose’s decision reflects reality. 
As part of its marketing efforts, Bose solicited reviews of its speakers by pro­
fessional reviewers and then publicly distributed some seven million copies of 
those reviews in order to convince individuals that they ought to buy the 
speakers it made (R.A. 43-44 & n.6). Bose itself thus aggressively sought to 
make the quality and performance of its speakers an issue for public com­
ment, albeit public comment which it undoubtedly hoped would be uni­
formly favorable.



7

facts” require one to verbalize an auditory or other non-verbal 
sensation, that judgment would make dangerous any state­
ment at all.

But the business of appellate courts — indeed, the chief rea­
son for their very existence — is to correct judgments of liabil­
ity' which depart from the principles, general or specific, on 
which liability ought to turn. In this case, an important prin­
ciple of liability is the requirement that knowledge of falsity be 
shov/n on the record by “clear and convincing” evidence. It 
simply was not. And neither the “clearly erroneous” standard 
embodied in Fed.R.Civ.P. 52(a) nor anything else prevented 
the court of appeals from saying just that. Indeed, any other 
conclusion would have a crippling effect on execution of the 
fundamental principles embodied in this Court’s decision in 
New York Times.

II. T h e  C ourt of Appea ls P roperly M ade a n  I n d epen d en t  
J udgm ent  C o ncerning  W h eth er  “ A c t u a l  M a l ic e”  had 
been  S how n  on t h e  R ecord by  “ C lear  and  C o n v in c in g ”  
E vidence .

A. The Court of Appeals’ Independent Judgment was Prop­
erly Exercised Because of its Obligation to Insure that 
Constitutional Principles are Constitutionally Applied.

As it began the critical portion of its opinion, the court of 
appeals said that its proper “ focus [was] on the district court’s 
holding that Bose proved by clear and convincing evidence 
that CU published the words ‘individual instruments . . . tend­
ed to wander about the room’ with knowledge that they were 
false or with reckless disregard of their truth or falsity.” Con­
tinuing, the court said:

In performing this review we are not limited to the clear­
ly erroneous standard of Fed.R.Civ.P. 52(a); instead, we



8

must perform a de novo review, independently examin­
ing the record to ensure that the district court has applied 
properly the governing constitutional law and that the 
plaintiff has indeed satisfied its burden of proof. . . .  At 
the same time, we recognize that we are in no position to 
consider the credibility of witnesses and must leave ques­
tions of demeanor to the trier of fact.

(App. X. 22-23) (emphasis added).6
As support for the proposition that it was required to ex­

amine independently the entire record, the court of appeals 
cited, among other cases, New York Times Co. v. Sullivan, 
376 U.S. 254, 285 & n.26 (1964); and Time, Inc. v. Pape, 401 
U.S. 279, 284 (1971). Those citations were entirely proper 
and mark an appropriate place to begin.

As this Court will recall, the question presented in New 
York Times was whether the First Amendment permitted L.B. 
Sullivan, one of three elected commissioners of the City of 
Montgomery, Alabama, to recover a judgment for libel 
against the New York Times under the common law of Ala­
bama, common law which permitted a finding of liability 
without any showing of fault and without proof that Sullivan 
had been expressly targeted in any of the published remarks. 
This Court concluded that the First Amendment did not per­
mit such a judgment and, in the process, announced the now 
well-known rule of “actual malice” which governs recovery 
for libel by public officials.

This Court did not stop, however, with announcement of a 
general rule. After stating that reversal of the judgment was 
required because the just-announced liability rules had not

eThe emphasized language was not simply a casual phrase tucked into the 
middle of the court’s opinion. The court said it was focusing on whether 
Bose had met its burden of proof at the beginning of its analysis (App. X. 22), 
in the middle of its analysis (App. X. 23, 25-26), and again at the end (App. 
X. 34). In addition, the authorities it cited for the scope of the review it was 
undertaking (App. X 23), all discuss the requirement of “clear and convinc- 
ing” proof.



9

been followed, the Court said that, because a new trial might 
be sought, it was appropriate “ to review the evidence in the 
. . . record to determine whether it could constitutionally sup­
port a judgment.” Id. at 284-285. Explaining, it continued 
by saying:

This Court’s duty is not limited to the elaboration of con­
stitutional principles; we must also in proper cases review 
the evidence to make certain that those principles have 
been constitutionally applied. This is such a case, par­
ticularly since the question is one of alleged trespass 
across “ the line between speech unconditionally 
guaranteed and speech which may legitimately be regu­
lated.” In cases where that line must be drawn, the rule 
is that we “examine for ourselves the statements in issue 
and the circumstances under which they were made to 
see . . . whether they are of a character which the prin­
ciples of the First Amendment, as adopted by the Due 
Process Clause of the Fourteenth Amendment, protect.”

Id. at 285 (citations omitted).
Following its independent examination, this Court conclud­

ed, among other things, that “ the proof presented to show ac­
tual malice lacks the convincing clarity which the constitu­
tional standard demands, and hence . . .  it would not constitu­
tionally sustain the judgment for respondent under the proper 
rule of law.” Id. at 285-286.7

In Time, Inc. v. Pape, 401 U.S. 279 (1971), this Court re­
instated a directed verdict for the defendant which the Court 
of Appeals for the Seventh Circuit had reversed. This time the 
issue was whether, given the evidence presented during the

7 This Court also concluded, again based on that independent examina­
tion, that the evidence was constitutionally "incapable of supporting the 
jury’s finding that the allegedly libelous statements were made ‘of and con­
cerning’ ” Sullivan, notwithstanding the testimony of several individuals to 
the effect that they understood the statements in question to refer to him im­
plicitly because of his official position. New York Times Co. v. Sullivan, 376 
U.S. at 288-291 & n.28.



10

plaintiff’s case-in-chief, a jury question existed concerning the 
“ actual malice” of Time when it published an article about 
Pape. Again, this Court said that the scope of its review was 
premised on “ the settled principle that ‘[i]n cases in which 
there is a claim of denial of rights under the Federal Constitu­
tion, this Court is not bound by conclusions of lower courts, 
but will re-examine the evidentiary basis on which those con­
clusions are founded.’ ” Id. at 284 (emphasis added) (citation 
omitted). It then reviewed in some detail the basis for the 
statements the Time article contained and, after that review, 
concluded that Time’s “conduct reflected at most an error of 
judgment” which was not sufficient to send to a jury the ques­
tion whether Time had published the article with “ actual 
malice.” Id. at 292.

In other libel cases, as well, this Court has engaged in the 
same, intensive, fact-bound review to determine whether 
clear and convincing evidence of actual malice was demon­
strated on the record compiled below. E.g., Curtis Publishing 
Co. v. Butts, 388 U.S. 130, 156-158, 168-169 (1967); Beckley 
Newspapers Corp. v. Hanks, 389 U.S. 81, 83-84 (1967); St. 
Amantv. Thompson, 390 U.S. 727, 739-733 (1968); Greenbelt 
Cooperative Publishing Association, v. Bresler, 398 U.S. 6, 11
(1970) ; Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 54-57
(1971) . See National Association oj Letter Carriers v. Austin, 
418 U.S. 264, 282 (1974).8

But the rule requiring independent examination of the en­
tire record to determine whether speech is protected is not a 
rule unique to libel cases. Indeed that rule, as the cited cases 
recognize, generally manifests the important obligation this 
Court has, not only to announce constitutional principles, but 
to ensure that judgments are rendered in accordance with

8 Indeed, those who have, at times, disagreed with adoption of a prophy­
lactic rule which might effectively ease, at least somewhat, the burden un­
doubtedly imposed on this Court by the requirement for independent review' 
have adverted to the efficacy of that type of review as an argument against 
the prophylactic rule itself. Ccrtz v. Robert Welch, Inc., 418 U.S. 323, 
397-398 (1974) (White, J., dissenting).



11

those principles.9 Chiefly for two reasons, that obligation 
often makes broad and independent review of the entire 
record unavoidable.

Sometimes independent review is required because the con­
stitutional principle involved is itself so fact-sensitive that 

‘ broad review is necessary for its very application. For that
reason, only three months ago, this Court independently re­
viewed the record in a case which, like this one, came to it 
after a bench trial in the United States District Court. In Con-
nick v. M yers,____U .S .____ , 51 U.S.L.W . 4436 (U.S., April
20, 1983) (No. 81-1251), the question was whether, and to 
what extent, the First Amendment limited the right of a public 
employer to discharge an employee for speech-related activity. 
Reversing a judgment in favor of the employee, this Court 
held that the district court erred in concluding that the em­
ployee’s speech involved “ matters of public importance and 
concern” and that it had imposed on the employer “ an unduly 
onerous burden” to show that the reasons for discharge were 
unrelated to exercise of protected freedoms. Id. at 4437, 4439.

Again, however, this Court did not stop there. Instead, it 
went on to examine for itself the statements in issue and the 
circumstances under which they were made to reach the “ in­
dependent constitutional judgment on the facts of the case 
that the employer’s discharge of the employee had been prop­
er. Id. at 4439 n.10. It did so because the ultimate constitu­
tional judgment turned on a proper resolution of the “balance 
between the interests of the [employee], as a citizen, in com­
menting upon matters of public concern and the interest of the 

, State, as an employer, in promoting the efficiency of the
i public sendees it performs through its employees.” Id. at

4436, citing Pickering v. Board oj Education, 391 U.S. 563, 
568 (1968). See also Branti v. Finkel, 445 U.S. 507, 518 
(1980); Elrod v. Burns, 427 U.S. 347, 367-368 (1976). Given 
the nature of the constitutional principle at issue, involving as

"This Court’s power, after all, is the power to correct “wrong judgments, 
not to revise opinions.” Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945).



«rr.'. .t . i. r«tfii

12

it did a broad-gauge balance of differing interests, proper ap­
plication of that principle necessarily required an extensive in­
dependent review of, and judgment on, the facts of the entire 
case.10

More commonly, however, independent review is required 
because the constitutional rule of decision, although couched 
in terms which, at first blush, appear relatively firm, certain 
and “factual,” is not fully self-defining and thus gains life and 
meaning only by its application to the facts of specific cases. 
See Culombe v. Connecticut, 367 U.S. 568, 604-605, 622 
(1961) (opinion of Frankfurter, J.). In both Edwards v. South 
Carolina, 372 U.S. 229 (1963) and Cox v. Louisiana, 379 U.S. 
536 (1965), for example, the question was whether conduct 
the state had punished as a criminal “breach of the peace” 
nonetheless constituted a “peaceable assembly” fully protected 
by the First Amendment. To answer that question, this Court 
reviewed in substantial detail the evidence contained in the 
record and concluded for itself that petitioners’ activity had 
been the kind of “peaceable assembly” the First Amendment 
was designed to protect.11

10 See also Fiskev. Kansas, 274 U.S. 380 (1927), a due process case, albeit a 
due process case clearly tinged with First Amendment principles. By its very 
nature, application of the Due Process Clause often requires a fact-sensitive 
and thorough review of the evidence in order to determine whether the ac­
tion of the state in a given case has met constitutional requirements. See, 
e.g., Drope v. Missouri, 420 U.S. 162 (1975) (competence to stand trial); 
Stovall v. Denno, 388 U.S. 293, 301-302 (1967) (fairness of “show-up” after 
arrest); Henderson v. Morgan, 426 U.S. 637 (1976) (voluntariness of plea); 
Haynes v. Washington, 373 U.S. 503, 515-518 (1963) (voluntariness of a con­
fession); Moore v. Michigan, 355 U.S. 155 (1957) (right to counsel and volun­
tariness of guilty plea); Chambers v. Florida, 309 U.S. 227, 228-229 (1940) 
(voluntariness of confession).

11 In Cox, the relevant evidence itself was not free of substantial ambigui­
ty, Cox, 379 U.S. at 543 n.7, and thus this Court was required to analyze the 
record in exacting detail in order to make its independent constitutional 
judgment. Id. at 545-549 & nn.9-12. Compare Louisiana v. Cox, 244 La. 
1087, 156 So.2d 448 (1963) with Cox v. Louisiana, 379 U.S. 559, 586-587 
(1965) (Clark J ., dissenting).



13

Similarly, in NAACP v. Claiborne Hardware C o .,____U.S.
:---- > 50 U.S.L.W . 5122 (U.S., July 2, 1982) (No. 81-202), the
issue was, in part, whether the damages suffered by the re­
spondent as a result of petitioner’s boycott had been “proxi- 
mately caused by unlawful activity or whether those damages 
resulted from activity the First Amendment protected. That 
issue was one of constitutional magnitude because of this 
Court’s earlier holding, reaffirmed in Claiborne, that “the per­
missible scope of state remedies . . .  is strictly confined to the 
direct consequences of . . . [violent] conduct, and does not in­
clude consequences resulting from associated peaceful 
picketing.” United Mine Workers v. Gibbs, 383 U.S. 715, 729 
(1966). Proximate causation, although common grist for find­
ers of fact, is by no means a self-defining concept. Because the 
existence or non-existence of that causation marked the dividing 
line between constitutional immunity and substantial tort 
damages, the obligation to insure constitutional application of 
constitutional principles thus made an independent judgment 
on the facts of the case inescapable. See NAACP v. Claiborne 
Hardware Co., 50 U.S.L.W . at 5124 n.10, 5130 n.50.12

12Other examples abound. In Pennekamp v. Florida, 328 U.S. 331, 335 
(1946), the question was whether a newspaper editorial and cartoon con­
stituted a “clear and present danger” to the orderly and fair administration of 
justice. See also Eaton v. City oj Tulsa, 415 U.S. 697, 698 (1974); In re Lit­
tle, 404 U.S. 553 (1973). In Jacobellis v. Ohio, 378 U.S. 184 (1964), the 
question was whether the pre-Miller standards for determining whether a 
work was obscene had in fact been met. In Jenkins v. Georgia, 418 U.S. 153, 
160-161 (1974), the question was whether the post-Miller standards of 
prurient interest and patent offensiveness” had been met. In Hess v. In- 

diana, 414 U.S. 105 (1973), the question was, in part, whether the words 
used were “fighting words.” In Cantwell v. Connecticut, 310 U.S. 296 
(1940), the question was whether Cantwell's conduct was a “clear and pres­
ent menace to public peace and order.” In Watts v. United Slates, 394 U.S. 
705 (1969), the question was whether Watts' comments at a public gathering 
amounted to a ‘ threat” to the life of the President of the United States. And 
in Tinkers'. Des Moines Independent Community School District, 393 U.S. 
503, 509 (1969), the question was whether there had been material and sub­
stantial interference with the requirements of appropriate discipline in the 
operation of school.”



„  i i m H — f t  .

14

The cited cases demonstrate the importance of distinguish­
ing between “ issues of fact that are here foreclosed and issues 
which, though cast in the form of determinations of fact, are 
the very issues to review which this Court sits. Watts v. In­
diana, 338 U.S. 49, 51 (1949) (opinion of Frankfurter, J.); ac­
cord Dropex. Missouri, 420 U.S. 162, 175 n. 10 (1975). Those 
cases show that the obligation to ensure constitutional applica­
tion of constitutional principles cannot be avoided by articu­
lating standards which break the ultimate principle down into 
constituent parts, labeling each of those constituent parts a 
“ fact” and then repressing judicial review of the facts ul­
timately found so long as the fact-finder appeared to nod at 
the relevant standards. To do that — to reduce constitutional 
principles to an amalgam of discrete and all-but-unreviewable 
facts — would give rise to a clear danger that those principles 
might be frustrated by “distorted fact-finding. Haynes v. 
Washington, 373 U.S. 503, 516 (1963).13 The power of a re­
viewing court to conduct an independent review and to reach 
its own constitutional judgment on the facts of the case thus is 
itself a substantial part of the process by which the lines 
separating protected speech from criminal or tortious behavior 
are staked. Miller v. California, 413 U.S. 15, 25 (1973). See 
Jenkins v. Georgia, 418 U.S. 153, 160 (1974); Kois v. Wiscon­
sin, 408 U.S. 229, 232 (1972).14

13 That danger is not one which stems solely from fact-finding by juries. 
See Monaghan, First Amendment “Due Process, 83 Harv. L. Rev. 518, 529 
(1970). As the cases just discussed make clear, independent review has been 
undertaken when cases came to this court from state and federal bench trials
as well as from state and federal trials by jury. E .g., Connick v. M yers,-----
U S ____ 51 U.S.L.W . 4436 (1983); NAACP v. Claiborne Hardware Co.,

' U .S.’____, 50 U.S.L.W . 5122 (1982).
14“ Actual malice” necessarily is a “constitutional fact no different than 

those just discussed. See generally Kalven, The New York Times Case: A 
Note on “ The Central Meaning oj the First Amendment,” 1964 Sup. Ct. 
Rev. 191, 220. That standard requires, among other things, knowledge of 
“falsity.” But “falsity” is not a unitary concept. See, e.g., Restatement (Sec­
ond) of Torts § 581A; cf. Smith v. California, 361 U.S. 147, 154-155 (1959). 
Here, difficult questions the court of appeals assumed away, see n.4, supra, 
included whether knowledge of imprecision, if imprecision there was,



ffranar

15

If independent review of the entire record is often required 
to ensure that the “constitutional facts,” Kois v. Wisconsin, 
408 U.S. at 232, see Rosenbloom v. Metromedia, Inc., 403 
U.S. 29, 54 (1971) (plurality opinion); Ashe v. Swenson, 397 
U.S. 436, 443 (1970), on which liability turns do indeed exist, 
then surely independent review of the process by which those 
facts are found in the trial court is both necessary and proper. 
As this Court has recognized, that process is an important part 
of the protective fabric with which First Amendment rights 
are cloaked. See Carroll v. President ir Commissioners of 
Princess Anne, 393 U.S. 175, 183 (1968); Monaghan, First 
Amendment "Due Process," 83 Harv. L. Rev. 518, 534 (1970). 
See generally Freedman v. Maryland, 380 U.S. 51 (1965). In­
deed, that process is one of the “sensitive tools” used to 
separate protected speech from unlawful activity. Speiser v 
Randall, 357 U.S. 513, 525 (1958).

Proper allocation of the burden of proof is one important 
ingredient of the protection afforded to First Amendment 
rights in the fact-finding process. Speiser v. Randall, 357 U.S. 
at 525. An equally important component of that protection, 
however, results from the quantum and quality of proof which 
must be brought forward by the party on whom the burden re­
poses. As the court of appeals fully recognized in this case, see 
App. X. 26, the constitutional requirement of proof by clear 
and convincing evidence, New York Times Co. v. Sullivan, 
376 U.S. 254, 285-286 (1964), itself “serves to allocate the risk 
of error between the litigants and to indicate the relative im­
portance attached to the ultimate decision.” Addington v.

amounts to knowledge of “falsity” for purposes of applying the constitutional 
rule and whether the relevant knowledge must include knowledge of the 
defamatory innuendo -  in this case that the sounds were “bizarre” and “gro­
tesque” (App. X. 101, 105) — lurking in the words actually used. See Re­
statement (Second) of Torts § 580A, comment d. The latter question is par- 
ticularly important in cases like this where the speaker uses words which ex­
pressly contradict the asserted innuendo. See App. X. 49 (“With orchestral 
music, such effects seemed inconsequential. But we think they might 
become annoying when listening to soloists.”). See also App. X. 20 n.8.



16

Texas, 441 U.S. 418, 423 (1979). See also In re Wlnship 397 
U.s. 358, 363-364 (1970). P’

But the term “clear and convincing,” like the term “clear 
and present danger” or the term “proximate cause” or the term 
patent offensiveness,” is not fully self-defining. To be sure, 

t e terms provide a guide to appropriate decision-making and 
they shoW the general area of focus for proper fact-finding.
l Z Â i mgtOTl V' TeXas’ 441 U’S- at 423-425; In re Winship,

, ' ‘ 370 (Harlan, J ., concurring). A determination
whether the standard has been met in a given case, however, 
u innately is a value-laden decision which must be made only 
after the entire record has been canvassed.

Indeed; there is no other way to do it. Surely, the question 
whether clear and convincing” evidence has been presented 
to the trier of fact is not itself a fact like the amount owed by 
one private partner in a retail shoe business to another. Cf. 
Columbus Board of Education v. Penick, 443 U.S. 449 491 
(1979) (Rehnquist, J ., dissenting). How “clear,” for example, 
must clear” evidence be? How “convincing” must “convinc­
ing evidence be? One cannot reduce the answers to those 
questions to a formula easily applicable always and ever. But 
the answers to those questions are enormously important for 
in part, those answers mark the dividing line between speech 
which is protected by the First Amendment and that which is 
not. If constitutional principles are to be applied in constitu- 
lonal fashion, then the reviewing court must have the ability 

to determine for itself whether the fact-finding process has 
proceeded in appropriate fashion. That, as stated, can only 
be done by taking an independent look at the entire record.

The issue thus posed by this case — whether Bose satisfied 
its burden of proving by clear and convincing evidence that 
CL knew its publication was false at the time that publication 
was made — is substantially different from the issue posed in 
the cases cited by Bose and decided by this Court over the past 
several years. E.g., Columbus Board of Education v. Penick 
443 U.S. 449 (1979); Dayton Board of Education v. Brinkman,



17

443 U.S. 526 (1979); Rogers v. Lodge, ____ U.S. ____, 50
U.S.L.W . 5041 (U.S., July 1, 1982) (No. 80-2100); Inwood 
Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 
(1982); Pullman-Standard v. Swint, 456 U.S. 273 (1982).15 In 
each of those cases, the question decided by the trial court was 
whether an individual or group did or did not have a certain 
intent. The issue before this Court in each of those cases 

was whether the 'appellate court could review for itself the 
record compiled in the trial court and come to its own conclu­
sions on that question notwithstanding the requirements of 
Fed.R.Civ.P. 52(a). Not at issue in any of those cases were the 
threshold questions whether the trial court correctly allocated 
the burden of proof or correctly determined that the quantum 
and quality of evidence adduced by the party having the 
burden met the relevant standard.

It is obvious, however, that the question whether the record 
contains the quantum and quality of evidence necessary to 
support a conclusion that a person did or did not have a given 
intent and the question whether that intent in fact existed are 
two entirely separate questions. See, e.g., Columbus Board of 
Education v. Penick, 443 U.S. 449, 468 (1979) (Burger, C .J., 
concurring).16 Indeed, the difference between the two is what

This case is distinguishable at once from Inwood and Pullman-Standard 
because those cases involved questions of statutory construction alone. 
Resolution of the issues those cases presented thus did not mean the difference 
between preservation of a constitutional right and violation of it.

This Court repeatedly has held that a finding is “clearly erroneous” 
when, although there is evidence to support it, the reviewing court on the 
entire evidence is left with the definite and firm conviction that a mistake has 
been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 
395 (1948) (emphasis added). Accord Inwood Laboratories, Inc. v. Ives La­
boratories, Inc., 456 U.S. 844 (1982); Pullman-Standard v. Swint, 456 U.S. 
273 (1982). As those words make clear, before arriving at a conviction that a 
mistake has been committed, the reviewing court must conclude as a prelim­
inary matter that there is some evidence on the record sufficient to support 
the courts finding. In the vast majority of cases in which the fact at issue 
need be proved only by a preponderance of the evidence, this preliminary 
conclusion understandably is reached with little or no discussion by the re-



18

gives to the “possibility of mistaken fact-finding . . . inherent 
in all litigation” which this Court so fully discussed in Speiser 
v. Randall, 357 U.S. 513, 525-526 (1958). And if both ques­
tions were left to the near-final decision of the trial court, ap­
pellate review would lose much, if not all, of its role in assur­
ing that First Amendment rights were fully and carefully pro­
tected.

Properly viewed, then, this case is not one in which the 
court of appeals manifested a belief that it was free to make up 
its own mind about the fact on which liability turned. Cj. 
Pullman-Standard v. Swint, 456 U.S. 273, 284-285 (1982).

viewing court, because evidence of virtually any quality' or quantity is 
capable of being found more persuasive by the fact-finder than evidence of 
any quality or quantity to the contrary. This characteristic of the prepond­
erance of the evidence standard is true whether the fact at issue is the color of 
a traffic light or the existence of discriminatory intent under Title VII of the 
Civil Rights Act. In both cases, therefore, the only difficult question to be 
resolved by the reviewing court is whether the trial court decided that fact 
against the clear weight of the evidence — in other words, whether the trial 
court’s finding was clearly erroneous. See Pullman-Standard v. Suiint, 456 
U.S. 273 (1982).

On the other hand, when the fact at issue must be proved by more than a 
mere preponderance of the evidence — by clear and convincing evidence — 
the first tier in the two-tiered process of inquiry just described achieves far 
greater significance. For the appellate court must in the first instance ask 
itself not merely whether there is any evidence on the record w hich, if be­
lieved, could tend to prove the fact at issue, but whether the evidence on the 
record as a whole is of a quality and quantity which is “clear and 
convincing.” Sec Santosky v. Kramer, 455 U.S. 745, 764 (1982); Addington 
v. Texas, 44] U.S. 418, 424-425 (1979). As has been emphasized earlier, that 
is a question which is extremely important yet not easily resolved.

In this case, after a thorough review of the record in light of existirig legal 
standards governing the meaning of “clear and convincing” evidence in the 
context of First Amendment cases, the court of appeals answered the first 
question in the negative. Accordingly, it was unnecessary for that court even 
to reach the question w hich would have brought into play the clearly er­
roneous standard of Fed.R.Civ.P. 52(a) — that is, w'hether, on the entire 
evidence, it was left with the firm conviction that the district court had been 
mistaken in concluding that CU published the words “ instruments . . . tend­
ed to wander about the room” with knowiedge that they wore false or with 
reckless disregard of their truth or falsity.



19

Instead, the court of appeals reviewed the entire record to 
determine whether the existence of that fact was shown on the 
record by the quantum and quality of evidence the Constitu­
tion commands. Because the answer to that question deter­
mined whether CU’s speech was or was not protected by the 
First Amendment to the Constitution, the case was a “proper” * 
one for review of “the evidence to make certain that [the con­
stitutional principles embodied in the “clear and convincing” 
rule] ha[d] been constitutionally applied.” New York Times 
Co. v. Sullivan, 376 U.S. 254, 285 (1964). In conducting that 
review and answering that question, the court of appeals thus 
was not bound by Fed.R.Civ.P.52(a). As will be demon­
strated shortly, the constitutional judgment reached by the 
court of appeals after its review was surely correct.

B. Even if the Rule Requiring Proof by “Clear and Con­
vincing” Evidence is Not of Constitutional Dimension, 
the Court of Appeals Properly Exercised Its Independent 
Judgment to Determine Whether that Standard Had 
Been Met.

As mentioned, earlier, the question considered by the court 
of appeals was whether the evidence produced by Bose satis­
fied the “clear and convincing” standard required by New 
York Times Co. v. Sullivan, 376 U.S. 254, 285-286 (1964), in 
cases like this. Even if the “clear and convincing” rule does 
not derive from the Constitution itself, that question histor­
ically and properly has been viewed by this Court as one 
which did not bind a reviewing court to the confines of 
Fed. R. Civ. P. 52(a).

At bottom, the requirement that knowledge of falsity be 
shown on the record by “clear and convincing” evidence 
represents a choice concerning who bears the risk of erroneous 
fact-finding. The common “preponderance of the evidence” 
standard “ allows both parties to ‘share the risk of error in 
roughly equal fashion.’ . . . Any other standard expresses a



20

preference for one side’s interests.” Herman & MacLean v.
Huddleston, ____U.S. ____ , 51 U.S.L.W . 4099, 4103 (U.S.,
January 24, 1983) (Nos. 81-680, 81-1076). See also Santoskyv. 
Kramer, 455 U.S. 745, 755 (1982); Addington v. Texas, 441 
U.S. 418, 423 (1979). But that preference is not a preference 
abstractly made. Instead, it represents a determination that 
the “social disutility” of an erroneous judgment penalizing 
speech is much greater than the “social disutility” of a wrong 
judgment in the speaker’s favor. In re Winship, 397 U.S. 358, 
372 (1970) (Harlan, J ., concurring); Schauer, Fear, Risk and 
The First Amendment: Unraveling the “ Chilling Effect," 58 
B.U.L. Rev. 685, 702-703, 708-709 (1978).17

Denaturalization and deportation cases illustrate the point. 
In Schneiderman v. United States, 320 U.S. 118 (1943), this 
Court held that the government must prove its case with 
“clear, unequivocal and convincing” evidence, for “ [wjere the 
law otherwise, valuable rights would rest upon a slender reed, 
and the security of the status of our naturalized citizens might 
depend in considerable degree upon the political temper of 
majority thought and stresses of the times.” Id. at 159. Ac­
cord Fedorenko v. United States, 449 U.S. 490 (1981); Wood- 
by v. Immigration 6- Naturalization Service, 385 U.S. 276

17 The infrequency with which this Court has imposed the requirement of 
proof by “clear and convincing” evidence attests to the value of the interests 
it is designed to protect. In addition to the libel cases, the “clear and con­
vincing” requirement appears to have a current life as an evidentiary rule in 
five other areas: revocation of parental rights, Santosky v. Kramer, 455 U.S. 
745 (1982); denaturalization proceedings, Fedorenko v. United States, 449 
U.S. 490 (1981); civil commitment proceedings, Addington v. Texas, 441 
U.S. 418 (1979); the existence of an independent basis for an in-court identifi­
cation after an identification at a tainted lineup, United States v. Wade, 388 
U.S. 218 (1967); and certain disputes between states tendered to this Court
for resolution under its original jurisdiction, Colorado v. New Mexico,____
U .S .----- , 51 U.S.L.W. 4045, 4048 & n.13 (U.S., December 13, 1982) (No.
80, Orig.). In a non-evidentiary sense, the requirement has been applied to 
showings that the legislature intended to preclude all judicial review of an 
administrative action. FTC  v. Standard Oil Company, 449 U.S. 232, 249 
n.5 (1980) (Stevens, J. concurring).



21

(1966); Costello v. United States, 365 U.S. 265 (1961); Chaunt 
v. United States, 364 U.S. 350 (1960); Nishikawa v. Dulles, 
356 U.S. 129 (1958); Baumgartner v. United States, 322 U.S. 
665 (1944).

After announcing that standard, the Court reviewed for 
itself the evidence in the record and concluded that the stand­
ard had not been met. Schneiderman v. United States, 320 
U.S. at 125, 144 (1943). Explaining its analysis of one aspect 
of the record which the Government urged was sufficient to 
support the judgment rendered by the court below, this Court 
said as follows:

We do not say that a reasonable man could not possibly 
have found, as the district court did, that the Communist 
Party in 1927 actively urged the overthrow of the Gov­
ernment by force and violence. But that is not the issue 
here. We are not concerned with the question whether a 
reasonable man might so conclude, nor with the narrow 
issue whether administrative findings to that effect are so 
lacking in evidentiary support as to amount to a denial of 
due process. As pointed out before, this is a denaturaliza­
tion proceeding in which, if the Government is entitled to 
attack a finding of attachment . . . the burden rests upon 
it to prove the alleged lack of attachment by “clear, une­
quivocal and convincing” evidence. That burden has not 
been carried. The government has not proved that peti­
tioner s beliefs on the subject of force and violence were 
such that he was not attached to the Constitution in 1927.

Id. at 153-154.
The following term, in Baumgartner v. United States, 322 

U.S. 665 (1944), this Court announced the principled basis for 
its conclusion that an appellate court’s own view of the record 
determined whether “clear, unequivocal and convincing” evi­
dence was present. This Court said:



22

It is idle to try to capture and confine the spirit of this 
requirement of proof within any fixed form of words. 
The exercise of our judgment is of course not at 
large. . . .  But we must be . . . watchful that citizenship 
once bestowed should not be in jeopardy nor in fear of ex­
ercising its American freedom through a too easy finding 
that citizenship was disloyally acquired. We have suffi­
ciently indicated the considerations of policy, derived 
from the traditions of our people, that require solid proof 
that citizenship was falsely and fraudulently procured. 
These considerations must guide our judicial judgment. 
Nor can the duty of exercising a judgment be evaded by 
the illusory definiteness of any formula.

Id. at 676.
While suggesting that the question whether the rigorous 

standard of proof had been met was an “ultimate” fact which 
an appellate court was not bound to review in the manner it 
was compelled to review “subsidiary” facts, this Court admit­
ted that the difference between an “ultimate fact” and a 
“question of law ,” if any, was not always easy to determine. 
Concluding its discussion of the matter, the court said as fol­
lows:

Suffice it to say that emphasis on the importance of 
clear, unequivocal, and convincing” proof . . .  on 

which to rest the cancellation of a certificate of 
naturalization would be lost if the ascertainment by the 
lower courts whether that exacting standard of proof had 
been satisfied on the whole record were to be deemed a 
“ fact” of the same order as all other “ facts,” not open to 
review here.

Id. at 671. That approach was reaffirmed most recently in 
Fedorenko v. United States, 449 U.S. 490 (1981).18

18 As this Court itself observed in Pullman-Standard v. Swint, 456 U.S. 273 
(1982), the label “ ultimate finding” is not a particularly helpful analytical



23

The “clear, unequivocal, and convincing” standard applied 
in the denaturalization cases did not stem from the Constitu­
tion itself. Vance v. Terrazas, 444 U.S. 252 (1980). See Her­
man <b MacLean v. Huddleston,____U .S .____ ., 51 U.S.L.W.
4099, 4103 (U.S., January 24, 1983) (No. 81-680); Steadman 
v. SEC, 450 U.S. 91, 102 n.22 (1981). Nonetheless, the values 
protected by that standard involved “ judgments lying close to 
opinion regarding the whole nature of our Government and 
the duties and immunities of citizenship.” Baumgartner v. 
United States, 322 U.S. 665, 671 (1944). As a result, however 
labeled, the “clear, unequivocal and convincing” rule is not a 
fact like the color of the traffic light at the time of the accident 
but “clearly implies the application of standards of law.” 
Baumgartner v. United States, 322 U.S. at 651. Accord 
Pullman-Standard v. Swint, 456 U.S. at 288. Moreover, the 
phrase “clear and convincing” implies a “qualitative as well as 
a quantitative judgment.” See Santosky v. Kramer, 455 U.S. 
745, 764 (1982); Addington v. Texas, 441 U.S. 418, 424-425 
(1979). Cj. In re Winship, 397 U.S. 358, 364 (1970); Stead­
man v. SEC, 450 U.S. 91, 98, 102 n.22 (1981). And that 
qualitative judgment, at least, cannot be reduced to “ the il­
lusory definiteness of a formula.” Baumgartner v. United 
States, 322 U.S. at 676.

If the qualitative judgment embodied in the “clear and con­
vincing” rule inherently escapes the “ illusory definiteness” of 
reformulation, if its function as a bulwark against erosion of 
important rights would be seriously undercut by treating it as 
a “ fact” like all others not open to review and if it is a finding 
which has no life independent of a legal standard, then surely 
independent review of the type undertaken by the court of

tool. The real question in each case is whether the finding of the district 
court under review has a life independent of a legal standard or concept or 
whether that legal standard or concept is an indispensable element of the 
finding in question. See generally Pullman-Standard v. Swint, 456 U.S. at 
286-287 n.19 (1982); Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 491 
(1937); cj. Fiske v. Kansas, 274 U.S. 380, 385-386 (1927).



24

appeals here was proper. Indeed, only through such inde­
pendent review is it possible to insure that the qualitative judg- ' 
ment the rule embodies does in fact protect the rights it is de­
signed to serve.

III . T h e  C ourt o f  Appea ls C orrectly  C oncluded  t h a t  B ose

H ad N ot  P roved CU’s A c t u a l  M a lic e  by C lear  and  C o n ­
vincin g  E v id en ce .

In carrying out its review of the record, the court of appeals 
summarized the evidence — all virtually uncontested — it con­
sidered in reaching the conclusion that petitioner had failed to 
meet its burden of proof. First, the court reviewed the evidence 
as to the state of mind of Seligson, one of the two engineers who 
conducted the relevant listening tests and upon whose written 
description of those tests the article was based. Even giving due 
regard to the district court’s disbelief of Seligson’s testimony 
that the words used in the article accurately described what he 
heard, the court of appeals properly concluded that “ [t]he 
evidence presented merely shows that the words in the article 
may not have described precisely what the two panelists heard 
during the listening test. . . . Certainly this does not support an 
inference of actual malice.” (App. X. 35.)

That conclusion is amply supported by cases this Court has 
decided. The district court’s finding with respect to Seligson’s 
“actual malice” was based on its finding that the word “about” 
wras false coupled with (a) its disbelief of Seligson’s testimony 
that he thought the word, in context, accurately described what 
he heard, and (b) its conclusion that he was too intelligent a 
person to equate the words “about” and “across” (App. X. 
141-142). To the extent that the district court concluded that 
Bose’s burden was satisfied by its disbelief of Seligson’s 
testimony, the district court was wrong. As this Court held in 
Nishikawa v. Dulles, 356 U.S. 129, 137 (1958), clear and con­
vincing evidence of a fact is not supplied by disbelief of testi-



25

mony concerning the non-existence of that fact.19 To the ex- 
tent that the district court relied on its conclusion as to the 
plain, ordinary meaning” of the word “ about” and on Selig- 

sons being too intelligent to mistake that meaning, the court 
was using an objective test of Seligson’s state of mind which is 
wholly incompatible with the “actual malice” standard ap- 

thlS case 35 a whoIe- St. Amant v. Thompson, 390 

78-797(19647)31 (1968)! Garrison v‘ Lou^ n a ,  379 U.S. 64,

The court of appeals also reviewed the evidence regarding 
the editorial procedures followed by CU in the course of 
preparing the article for publication. Despite the trial court’s

f  trial that SUch evidence was irrelevant (J.A 
130-131), a brief look at that evidence reveals that it too was 
appropnatdy reviewed by the court of appeals to determine 
whether the burden of proving actual malice had been met 
Sehgson s written report of the phenomena he observed during 
the listenmg tests, the “ report to editorial,” was sent to CU’s 
. itonal Department to assist it in preparing the article for 

publication (J.A. 125-126). Although the Editorial Depart­
ment sent the manuscript to Seligson for his review, Seligson 
did not have final authority to approve its content prior to 
publication (J.A. 145-146). As the court of appeals reeog-

rpvrf’ n ™ g 6 C° UrSe ° f this editorial Process, “ the 
(Editorial] Department changed Seligson’s words that instru-

19Disbelief of testimony concerning the existence of a fact is not affirma

7 7 7 “  » ' ,h- '  f“ >'» «■* c o n l l e l S
saHsfWt ° t  Appeals for the First Circuit consistently has said, “however
truthM 3 T a>' te  fr° m the witness’s demeanor or his demonstrated un- 
t nth fulness in other respects that certain testimony is false, it cannot uXsuch 
disbehef alone to support a finding that the opposite was the fact A Ja Z a n V .

y0T'ii 781> 784 (1st Cir.), cert, denied, 382 U.S. 879 (1965) See
generally Moore v. Chesapeake b  Ohio Ry., 340 U.S. 573, 576-577 (1951 ).

C n Z  ,  ;  gan' 427 F  2 d  6 6 7 ’ 672-673 (1st Cir. 1970); NLRB l '  
Gotham Industries, Inc., 406 F.2d 1306, 1310 (1st Cir. 1969) Federal In 
surance Co. v. Summers, 403 F.2d 971, 974 (1st Cir 19681- NT RR t u
Antell, Inc., 358 F.2d 880, 883 (1st CiV. 19M) ^  Jmeph



26

ments ‘suffered [from] a tendency to wander around the room’ to 
the statement ultimately published that instruments ‘tended to 
wander about the room.’” (App. X. 33.) See J.A. 160-161. The 
manuscript prepared by ClTs Editorial Department also was 
reviewed by Monte Florman, then CUs Associate Technical 
Director and one of Seligson’s superiors (J.A. 130). Florman 
testified that, when conducting his review of the manuscript, he 
“never really pondered” the meaning of the word “about” as used 
in the relevant phrase (J.A. 219). See App. X. 34.20

The most that can be concluded from this evidence, said the 
court of appeals, “ is that in reviewing the manuscript CU 
employees could have inquired more painstakingly into the 
precise language being used.” (App. X. 34.) That conclusion, 
against the backdrop of this record, was surely proper. In­
deed, it is quite similar to the conclusion reached by this Court 
itself in Time, Inc. v. Pape, 401 U.S. 279, 292 (1971), where, 
as here, the source materials on which the relevant article was 
based themselves were not free from ambiguity.21

“ In its brief and in its statement of the questions presented, Bose argues 
that it was improper for the court of appeals to consider Florman’s testimony 
regarding his role in the editorial process because “ [t]he District Court judge 
had found expressly that 'Florman’s testimony is wholly untrustworthy and is 
not credible’ (App. X163).” (Brief for Petitioner, pp. ii, 69.) This quote from 
the district court’s opinion is taken out of its limited context and altogether 
misstates the district court’s finding as to Florman’s credibility. Florman 
testified on a number of subjects at trial, among them his observations during 
a listening test he conducted on the Bose 901’s after Bose had complained to 
respondent about the article (J.A. 203-206). It was only Florman’s 
testimony that he had heard “unusual auditory effects” during this post­
publication listening test that the district court disregarded as not credible 
(App. X. 163). Florman also testified at some length as to the editorial pro­
cedures followed by respondent in preparing the article for publication. See 
J.A. 197-200, 214-219. Far from disregarding it, the district court explicitly 
accepted Florman’s testimony as to the meaning of the word “about” in the 
context of the statement concerning wandering instruments (App. X. 103), 
and, indeed, directly quoted from Florman’s description of the editorial 
process in its opinion (App. X. 167-168).

21 Bose suggests that other evidence, neither relied on by the district court 
nor raised by Bose in the court of appeals, supports the finding that it



* r

* t

27

In sum, the court of appeals correctly concluded that 
neither the evidence as to the state of mind of Seligson, nor the 
evidence as to the editorial procedures followed by CU nor any 
other evidence on the record, taken by itself or cumulatively, 
was sufficient to prove with “convincing clarity” that the 
words at issue were published with “actual malice.” A con­
trary conclusion would mean that the burden of proving 
knowledge of falsity by “clear and convincing evidence” could 
be shouldered by proof of little more than falsity alone. But see 
n.4, supra. That, of course, is the very result the “clear and 
convincing” standard was designed to prevent.

Conclusion.

Although this case involves on its face a question of pro­
cedure, the answer to that question is enormously important. 
As Justice Frankfurter put it forty years ago, the “ history of

established actual malice with clear and convincing proof (Brief for Peti­
tioner, pp. 54-60). It does not. First, the fact that the listening panel used 
for conducting the special test on the Bose 901’s was different from the panel 
used in conducting the separate “cricket test” described in the article simply 
is irrelevant to the question whether CU knew or acted with reckless 
disregard of whether the words “instruments . . . tended to wander about 
the room” accurately described what the panelists who, in fact, tested the 
Bose 901”s heard. Second, the claim that Bose failed to play the’ recordings 
used during the special listening test through a conventional loudspeaker as 
well as through the Bose 901’s would also be irrelevant to the actual malice 
issue if it were true. In fact, CU did employ a reference loudspeaker during 
the special listening test to “see what ordinary loudspeakers . . . would sound 
like under the same circumstances” (J.A. 101-103). Third, Bose’s claim that 
actual malice can be inferred from ClTs use of the word “instruments” in 
describing the wandering effect since Seligson and Lefkow testified that only 
the violin wandered , is without merit. The district court ruled that CU 
reported accurately that instruments . . . tended to wander. . . .” (App. X. 

102.) Finally, the fact that CU did not identify the records it used in the 
istening tests when asked to do so by Bose after the article had been pub­

lished is of no relevance whatsoever to CU’s state of mind at the time the arti­
cle was published. See St. Amant v. Thompson, 390 U.S. 727, 731 (1968); 
Garrison v. Louisiana, 379 U.S. 64, 74 (1964).



28

liberty has largely been the history of observance of procedural 
safeguards.” McNabb v. United States, 318 U.S. 332, 347 (1943). 
The power and duty of a reviewing court to reach in a proper 
case its own judgment concerning whether constitutional prin­
ciples have been coastitutionally applied is an important ingre­
dient of the strategic protection afforded to rights preserved by 
t e First Amendment. It is an important ingredient precisely 
because it constitutes the only sound means by which often am­
biguous rules of decision possibly can take on meaningful form.

In this case, the court of appeals utilized the scope of review 
historically reserved to an appellate court when constitutional 
judgments must be made and properly concluded that Bose had 
not satisfied its burden of producing “clear and convincing 
evidence” of ClTs “actual malice.” In so doing, the court of ap­
peals did not invade the territory reserved to the trier of fact by
Rule 52(a). As a result, the judgment of the court of appeals 
should be affirmed.

Respectfully submitted,
JAMES F. McHUGH,
Counsel o j Record 
JANE E. SERENE,
BINGHAM, DANA & GOULD, 

100 Federal Street,
Boston, Massachusetts 02110. 

Oj Counsel: (617) 357-9300
CHARLES S. SIMS,
AMERICAN CIVIL LIBERTIES UNION 

FOUNDATION,
132 West 43rd Street,

New York, New York 10036.
(212) 944-9800

JOHN REINSTEIN,
CIVIL LIBERTIES UNION OF 

MASSACHUSETTS 
47 Winter Street,

Boston, Massachusetts 02108.
(617) 482-3170