Steven Gole
Telecommunication Law and Policy (COM 541)
Case:
Bose Corp. v. Consumers Union of U.S.
Due Date: Wednesday, March 8, 2006 @ 2:00 pm.
Bose Corp. v. Consumers Union of U.S. Inc., 508 F. Supp 1249 (1984).
Problem Defined:
Was the Consumers Union’s article written with actual malice, thus placing it outside the First Amendments freedom of speech protection? Is there a difference between actual malice and an accidental falsehood? Does Rule 52(a) of the Federal Rules of Civil Procedure prescribe the standard to be applied by the Court of Appeals in its review of a determination of actual malice? Is Bose Corp a public entity, thus making it prove actual malice by Consumers Union?
Case Description:
Bose Corp designs, manufactures, and sells consumer and professional speaker systems along specific coordinating audio and video technology. In 1969 Bose Corp came out with its Bose 901 loudspeaker system and marketed it to the American public. (Bose United States) Consumers Union is a nonprofit organization that compiles a magazine titled Consumers Report which compares consumer products and delivers an opinion evaluating the quality of the products. (Consumers Union) In 1970 Consumers Union wrote an article evaluating the quality of numerous brands of medium-priced loudspeaker systems, including the Bose 901 loudspeaker. The Bose 901 loudspeaker is a new unconventional system which Consumers Union gave a poor review when it was stated that,
“Individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room. For instance, a violin appeared to be 10 feet wide and a piano stretched from wall to wall. We think they {sound of instruments} might become annoying when listening to soloists.” (US Supreme Court Center)
Consumers Union also stated that they recommend one delay the purchase of the Bose 911 loudspeaker until one was sure the system would please them beyond the unconventional novelty design. (US Supreme Court Center)
Bose Corp disagreed with the article and statement and requested the publisher issue a reaction, in which Consumers Union declined to do so. As a result Bose Corp filed a product disparagement action in the Federal District Court of Massachusetts. Bose Corp claimed that sound of musical instruments did not wander about the room, but “they wander along the walls of the room”. (US Supreme Court Center)
Outcome:
The District Court determined that Bose is a public figure based on precedence set forth in Gertz v Robert Welch. Therefore Bose Corp must prove clear and convincing evidence of actual malice as stated by the First Amendment interpreted in NY Times v Sullivan. Court testimony from the author, Arnold Seligson claimed the musical sound wandered between the speakers along the walls which contradicted what he had written. Seligson's testimony also stated that he knew that his criticism of the speakers' performance was inaccurate. The Judge also questioned upon the Federal Rule of Civil Procedure 52(a) which claims “findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court judge to determine the credibility of the witness.” This represented what the judge found to be a credible witness that made false statement of fact that disparaged Bose Corp, and published with reckless disregard. The District Court found this knowledge to be clear and convincing proof that Consumers Union had showed reckless intent of actual malice, and entered judgment against them. (US Supreme Court Center) In another trial damages of $211,000 were assessed to Consumers Union. (James Goodale)
Consumers Union addressed the Court of Appeals claiming, falsehoods from the Federal District Court trial. After reviewing the previous trial the Appeals Court reversed the Federal District Courts decision. The Appellate Court accepted Bose Corp was a public figure and that the written statements were false and disparaging. However, judgment was reversed because it was unable to find clear and convincing proof that Consumers Union published the false and disparaging statement with knowledge that it was false or with reckless disregard of it being false. Seligson may know his statements were false by the time the trail was conceived, however he did not know they were false before they were published. The Appellate Court determined they needed to exercise an independent examination because the determination of actual malice was not limited to the standard of Rule 52(a). (US Supreme Court Center) An independent review reexamines the record to ensure that the district court had applied properly the constitutional law and that the plaintiff had satisfied its burden of proof. The Appellate Court addressed only whether the record before the court satisfied the constitutional actual malice standard, which it did not. (Mountain Enterprises inc.) They Stated,
“The evidence presented merely shows that the words in the article may not have described precisely what the panelist had heard during the listening test. CU was guilty of using imprecise language in the article – perhaps resulting from an attempt to produce a readable article for its mass audience. Certainly this does not support an inference of actual malice.” (US Supreme Court Center)
However the Appellate Court did not overrule any of the District Court's factual findings. According to the Court of Appeals, Consumers Union provided clearly erroneous written statement in which he made the mistake of claiming “the musical instruments wandered around the room.” Based on the Federal Rule of Civil Procedure 52(a) the statement should have been thrown out. These decisions favored Consumers Union, and forced Bose Corp to attempt to guide the trial to the Supreme Court. (US Supreme Court Center)
The Supreme Court, in an opinion by Justice Stevens, sustained the reversal of the judgment against Consumers Union that was ruled by the Appellate Court. After conducting its own independent review of the District Courts finding of actual malice, the Supreme Court agreed with the Appellate Courts determination that the record does not contain clear and convincing evidence that Seligson acted with knowledge that the article contained a false statement, or with reckless disregard of the truth. They felt that the Seligson’s description that the location of the movement of the apparent sound source and the size of the instruments is critical to aiding the reader and does not represent an attempt of actual malice. It was concluded that the average reader would understand the references made and that they would not interpret the figurative language literally. Seligson’s testimony was deemed not credible because of his demeanor at the trial concerning the interpretation of the words in question. This is because his opinion has changed since the article was published and the time of his testimony. (OYEZ Supreme Court Multimedia)
The Supreme Court also agreed with the Appellate Court that none of the factual findings should be overruled, but based on them they that might have justified a reversal of the actual malice finding of the trial court on the ground that it was clearly erroneous. However, the Court chose instead to affirm the practice of independent appellate review. This is based on the testimony of Seligson, but because they felt it did not contain a reckless disregard, they ruled to further affirm independent review. The Supreme Court stated that
“concerning First Amendment issues they have an obligation to make an independent examination of the record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” (US Supreme Court Center)
Supreme Court also reaffirmed that the Court of Appeals was correct in its conclusions that there is a significant difference between proof of actual malice and proof of falsity, and that additional proof is lacking in this case. Seligson’s article had shown evidence of actual malice was in fact an inaccuracy that was a mistakenly poor choice of words which was used.
The dissenting opinion written by Justice White, Rehnquist and O’Connor believe that the Appeals Court should only independently review factual findings of the trial court. The District Court found clear and convincing evidence that Consumers Union engineer/author, Seligson had written the defamatory statement about Bose’s product with actual knowledge that it was false. It reached that conclusion relying on its determination about the credibility of Seligson’s testimony. The dissenting Justices feel the Appellate Court reviewed more than they were legally able to.
Supreme Court decided to grant Bose Certiorari with a 6-3 vote, which ensured the Court of Appeals determined the appropriate decision and reversed the 211,000 in damages resulting against Consumers Union. (US Supreme Court Center ; Teeter, Loving)
Significance:
Significance in this case is concerning the four main problems earlier stated. The first being whether Bose Corp is considered a public entity. The District Court affirmed the correct practice and reaffirmed NY Times v. Sullivan which requires public entities to prove actual malice occurred which caused disparage to their situation. Both Bose Corp. and Consumers Union were both considered public entities. Since Bose was the petitioner they must prove actual malice which they failed to do so. Bose Corp failed to construct a coherent and workable doctrine that proved a false statement with deliberate disregard for the truth. (US Supreme Court Center)
The second main significance was the determination that the Federal Rule of Civil Procedure 52(a) is not to be the only standard used to determine actual malice. Federal Rules of Civil Procedure govern conduct of civil action brought before a Federal Circuit Court. These rules do not apply to State Courts. Rule 52(a) states,
“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be give to the opportunity of the trial courts to the judge of the credibility of the witness.” (US Supreme Court Center)
This rule is to be considered; however, an independent review of the record by the Justice is an obligation that must be performed. Concerning Bose v Consumers Union it should have been found by independent review in District Court that Arnold Seligson idea and thoughts of the statements under question had changed. Thus, that part of his testimony would be thrown out and not show proof of actual malice. (US Supreme Court Center)
The obligation to perform an independent review of the record is the third major significance. This maintains the precedence set forth by the NY Times v Sullivan which requires widespread independent review when judging a libel case of actual malice. An independent review certifies that the factual findings meet the constitutional requirements of libel and actual malice. Justice Stevens stated that,
“Concerning First Amendment issues that Justices have an obligation to make an independent examination of the record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” (US Supreme Court Center)
The final point of significance is the noted difference between actual malice and a accidental falsehood. The District Court made the judgment that Seligson’s article had actual malice and they ignored the independent review which would have proven that his opinion had changed or that he was unaware to the incorrect meaning. This fact was found upon an independent review by the Appellate Court which reversed the ruling based the fact his statement was false but it was mistakenly made. Also shown was the continuing standard of actual malice. Though the writer wrote a false fact, he did so by error or misconception. This maintains the standard set that an accidental mistake is not considered actual malice.
These four points of significance are key to the reformation of past libel cases and critical to future cases under question.
References:
Bose United States. “Better Sound Through Research”. Available at: http://www.bose.com/ Retrieved: 7 March, 2006. 1
Consumers Union. “ Non profit publishers of Consumers Report”. Available at: http://www.consumersunion.org/ Retrieved: 7 March 2006. 1
Dwight L Teeter Jr. and Bill Loving, Law of Mass Communications: Freedom and Control of Print and Broadcast Media (New York, NY: Foundation Press, 2004) 270, 285, 354, 358.
Gary A Paranzino. “The Future of Libel Law and Independent Appellate Review: Making Sense of Bose Corp. v Consumers Union of United States, Inc.” Available at: http://paranzino.com/libel.html Retrieved: 2 March, 2006. 1-26
James Goodale. “Bose Before the Supreme Court: Turning Tables in Libel Cases?,” National Law Journal 22, 1 (1983)
Mountain Enterprises Inc. “In the Supreme Court of the United States:” Available at: http://www.appellateacademy.org/publications/amicus/AAAL_Amicus.pdf#search='Bose%20v%20Consumers%20union%20of%20us%20certiorari%20to%20the%20united Retrieved: 7 March, 2006. 2-12
OYEZ Supreme Court Multimedia. . “Bose Corp. v. Consumers Union of U.S., Inc. 466 U.S. 485 (1984)” Available at: http://www.oyez.org/oyez/resource/case/954/abstract Retrieved: 2 March, 2006. 1
US Supreme Court Center. “Bose Corp. v Consumers Union of U.S., Inc. 466 U.S. 485 (1984)” Available at: http://www.justia.us/us/466/485/case.html Retrieved: 5 March, 2006. 1-16