466 U.S. 485 (1984), 82-1246, Bose Corp. v. Consumers Union of United States, Inc.

Docket Nº:No. 82-1246
Citation:466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502
Party Name:Bose Corp. v. Consumers Union of United States, Inc.
Case Date:April 30, 1984
Court:United States Supreme Court

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466 U.S. 485 (1984)

104 S.Ct. 1949, 80 L.Ed.2d 502

Bose Corp.


Consumers Union of United States, Inc.

No. 82-1246

United States Supreme Court

April 30, 1984

Argued November 8, 1983




Respondent published an article in its magazine 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." When respondent refused to publish a retraction, petitioner filed a product disparagement action in Federal District Court. The court ruled that petitioner was a "public figure," and that therefore, pursuant to the First Amendment as interpreted in New York Times Co. v. Sullivan, 376 U.S. 254, to recover, petitioner must prove by clear and convincing evidence that respondent made a false disparaging statement with "actual malice." Entering judgment for petitioner, the court found, based primarily on the testimony of the article's author (respondent's employee), that the article contained a false statement of "fact," because the sound of instruments heard through the speakers tended to wander "along the wall" between the speakers, rather than "about the room," as reported by respondent; that the author's testimony that the challenged statement was intended to mean "along the wall" was not credible; and that the statement was disparaging. On the basis of what it considered to be clear and convincing proof, the court concluded that petitioner had sustained its burden of proving that respondent had published the false statement with knowledge that it was false or with reckless disregard of its truth or falsity. The Court of Appeals reversed, holding that its review of the "actual malice" determination was not limited to the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a) -- which provides that

[f]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 credibility of the witnesses

-- and that it must perform a de novo review, independently examining the record to ensure that the District Court had applied properly the governing constitutional rule. Based on its review of the record, the Court of Appeals concluded that petitioner had not sustained its burden of proof.


1. The clearly erroneous standard of Rule 52(a) does not prescribe the standard of review to be applied in reviewing a determination of actual

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malice in a case governed by New York Times Co. v. Sullivan. Appellate judges in such a case must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity. Pp. 498-511.

(a) In cases raising First Amendment issues, an appellate court has an obligation to make an independent examination of the whole record to ensure that the judgment does not constitute a forbidden intrusion on the field of free expression. However, the standard of review must be faithful to both Rule 52(a) and the New York Times rule of independent review, the conflict between the two rules being in some respects more apparent than real. For instance, Rule 52(a) does not forbid an examination of the entire record, and the constitutionally based rule of independent review permits giving "due regard" to the trial judge's opportunity to judge witnesses' credibility, as provided by Rule 52(a). Pp. 498-501.

(b) Rule 52(a) applies to findings of fact, but 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. In a consideration of the possible application of Rule 52(a)'s distinction between questions of law and fact to the issue of "actual malice," three characteristics of the New York Times rule are relevant: (1) the common law heritage of the rule, (2) the fact that its content is given meaning through case-by-case adjudication, and (3) the fact that the constitutional values protected by it make it imperative that judges make sure that it is correctly applied. Pp. 501-503.

(c) The requirement of independent appellate review enunciated in New York Times reflects a deeply held conviction that judges -- particularly Members of this Court -- must exercise such review in order to preserve precious constitutional liberties. Under New York Times, the question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is ultimately a question of federal constitutional law. Pp. 503-511.

2. The Court of Appeals correctly concluded that there is a significant difference between proof of actual malice and mere proof of falsity, and that the requisite additional proof was lacking in this case. The testimony of the article's author did not constitute clear and convincing evidence of actual malice. The fact that he attempted to rationalize the mistake as to the article's use of the phrase "about the room" does not establish that he realized the inaccuracy at the time of publication. The choice of the language used, though reflecting a misconception, did not place the speech beyond the outer limits of the First Amendment's broad protective umbrella. Even accepting all of the District Court's purely

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factual findings, nevertheless, as a matter of law, the record does not contain clear and convincing evidence that respondent or its employee prepared the article with knowledge that it contained a false statement, or with reckless disregard of the truth. Pp. 513.

692 F.2d 189, affirmed.

STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. BURGER, C.J., concurred in the judgment. WHITE, J., filed a dissenting opinion, post, p. 515. REHNQUIST, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 515.

STEVENS, J., lead opinion

JUSTICE STEVENS delivered the opinion of the Court.

An unusual metaphor in a critical review of an unusual loudspeaker system gave [104 S.Ct. 1953] rise to product disparagement litigation that presents us with a procedural question of first impression: 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 District Court's determination that a false statement was made with the kind of "actual malice" described in New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964)?

In the May, 1970, issue of its magazine, Consumer Reports, respondent published a seven-page article evaluating the quality of numerous brands of medium-priced loudspeakers. In a boxed-off section occupying most of two pages, respondent commented on "some loudspeakers of special interest,"

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one of which was the Bose 901 -- an admittedly "unique and unconventional" system that had recently been placed on the market by petitioner.1 After describing the system and some of its virtues, and after noting that a listener "could pinpoint the location of various instruments much more easily with a standard speaker than with the Bose system," respondent's article made the following statements:

Worse, 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. With orchestral music, such effects seemed inconsequential. But we think they might become annoying when listening to soloists.

Plaintiff's Exhibit 2, p. 274. After stating opinions concerning the overall sound quality, the article concluded:

We think the Bose system is so unusual that a prospective buyer must listen to it and judge it for himself. We would suggest delaying so big an investment until you were sure the system would please you after the novelty value had worn off.

Id. at 275.

Petitioner took exception to numerous statements made in the article, and when respondent refused to publish a retraction, petitioner commenced this product disparagement action in the United States District Court for the District of Massachusetts.2 After a protracted period of pretrial

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discovery, the District Court denied respondent's motion for summary judgment, 84 F.R.D. 682 (1980), and conducted a 19-day bench trial on the issue of liability. In its lengthy, detailed opinion on the merits of the case, 508 F.Supp. 1249 (1981), the District Court ruled in respondent's favor on most issues.3 Most significantly, the District Court ruled that the petitioner [104 S.Ct. 1954] is a "public figure" as that term is defined in Gertz

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v. Robert Welch, Inc., 418 U.S. 323, 342, 345, 351-352 (1974), for purposes of this case, and therefore the First Amendment, as interpreted in New York Times Co. v. Sullivan, 376 U.S. at 279-280, precludes recovery in this product disparagement action unless the petitioner proved by clear and convincing evidence that respondent made a false disparaging statement with "actual malice."

On three critical points, however, the District Court agreed with petitioner. First, it found that one sentence in the article contained a "false" statement of "fact" concerning the tendency of the instruments to wander.4 Based primarily on testimony by the author of the article, the District Court found that instruments heard through the speakers tended to wander "along the wall," rather than "about the room" as reported by respondent.5 Second, it found that

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the statement was disparaging. Third, it concluded,

on the basis of proof which it considers clear and convincing, that the plaintiff has sustained its burden of proving that the defendant...

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