492 F.2d 631 (D.C. Cir. 1974), 71-1736, Carey v. Hume

Docket Nº:71-1736.
Citation:492 F.2d 631
Party Name:Edward L. CAREY v. Britt HUME, Appellant, Jack Anderson et al.
Case Date:January 28, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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492 F.2d 631 (D.C. Cir. 1974)

Edward L. CAREY


Britt HUME, Appellant, Jack Anderson et al.

No. 71-1736.

United States Court of Appeals, District of Columbia Circuit.

January 28, 1974

Argued Oct. 27, 1972.

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Leonard Appel, Washington, D.C., with whom Warren Woods and Betty Southard Murphy, Washington, D.C., were on the brief, for appellant.

J. Gordon Forester, Jr., Washington, D.C., for appellee.

William R. Glendon and Anthony F. Essaye, Washington, D.C., filed a brief on behalf of the Washington Post Company as amicus curiae.

Before DANAHER, Senior Circuit Judge, and McGOWAN and MacKINNON, Circuit Judges.

McGOWAN, Circuit Judge:

The troublesome legal issue of the compelled disclosure by a journalist of his sources of information gave rise to this interlocutory appeal (28 U.S.C. § 1292(b)) from the District Court. It comes to us in the context of a civil action for libel, as contrasted with the criminal setting in which the Supreme Court has most recently examined the question and sustained compulsion. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Although there may be discernible degrees of difference in the social interests attaching to the exaction of testimony in the one field as compared with the other, we have concluded, on the basis of both authority and reason, that civil litigation has its entitlements on proper occasion to the pursuit of truth wherever it may be found. We find that this record presents one such occasion; and we affirm the District Court.


The complaint in the District Court alleged that on December 14, 1970, the following item was published in a syndicated daily newspaper column known as 'The Washington Merry-Go-Round':


Records Stolen?-- With the government digging deeper into the financial affairs of the United Mine Workers, the union's President Tony Boyle and General Counsel Ed Carey spent hours recently going through the records. Later, they were seen removing boxfuls of documents from Boyle's office. Not long afterward, Carey made an official complaint to Washington police that burglars had struck at union headquarters. Among the goods reported stolen: a boxful of 'miscellaneous items.' The Justice Department is investigating.

The complaint further alleged that this item had been written by appellant and a co-defendant, Jack Anderson, with a malicious purpose to damage appellee's reputation, and with the effect of causing such injury. Substantial compensatory and punitive damages were sought. An answer was filed on behalf of appellant and Anderson, which described appellant as employed by the latter for the purpose of 'research, news gathering, and journalistic writing in the course of this employment.' Authorship was admitted of the paragraph upon which the complaint was based, but liability was denied. Extensive discovery proceedings were then engaged in by both sides. The facts which follow are derived from a deposition taken of appellant.

Prior to publication of the item in question, appellant established, by direct inquiry at the police department, that the burglary complaint mentioned in the story had in fact been filed with the police. He also attempted to call appellee on the day the story was to go to press, but, being unable to reach him, went forward with publication, apparently

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with no further attempt at verification of his facts. The day the story appeared appellee called appellant, and that conversation led to the inclusion of this item in the column published December 15:

CAREY'S DENIAL-- Our report on the circumstances surrounding the reported burglary of a box of 'miscellaneous items' from United Mine Workers headquarters has drawn a belated but angry denial from the union's general counsel Ed Carey . . .. 'A contemptible, despicable lie, ' said Carey. Our report was based upon information supplied by eyewitnesses, and we will not retract.

Since this second story indicated that the first had been based on eyewitness observation, appellant was asked the identity of those sources. Although appellant refused, as directed by his counsel, to give their names, he did indicate that there was more than one such informant, and that they were UMWA employees. 1 Appellant also disclosed in the course of the deposition that he did not know the date on which the activities described by him had occurred, but said it could have been any time during the six weeks immediately prior to publication. The claimed eyewitnesses had provided no written statements or affidavits, nor did appellant know of any writing or recording summarizing their accounts of these incidents. He was unsure whether he had taken notes of the revelations made to him by his informants, and, if so, whether he had preserved them.

Appellee then made a motion under Rule 37(a), Fed.R.Civ.P., to compel appellant to reveal the names of the eyewitnesses. Appellant filed an opposition to this motion, the first ground of which was that the 'generic question' raised by the motion was pending before the Supreme Court on petitions for writs of certiorari in the Branzbury trilogy of cases; and that because of 'the significant posture of the question at issue before the Supreme Court, ' the motion should be denied pending disposition of the writs. 2 The other grounds advanced by appellant were the constitutional claim of privilege, and the assertion that the information sought was not relevant to appellant's case or material to his proof.

The Pretrial Examiner recommended that appellant be required to answer the questions concerning the eyewitnesses; and the District Court, disallowing appellant's objections to the recommendation, entered an order directing him to do so, with a stay provided pending determination of an appeal. This appeal is from that order.


There is no dispute before us as to the standard of proof which appellee must

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meet if he is ultimately to win his case. That standard is the rigorously demanding one of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), where the Supreme Court established the principle that a civil libel plaintiff who is a public figure must show that the statement at issue was published with actual malice or in reckless disregard of the truth. 3 In the context of an asserted newsman's privilege to protect confidential news sources, the Sullivan rule is a source of tension. On the one hand, the Court's concern that the spectre of potential libel actions might have an inhibiting effect on the exercise of press freedom militates against compulsory disclosure of sources. Contrarily, the heavy burden of proof imposed upon the plaintiff in such a case will often make discovery of confidential sources critical to any hope of carrying that burden.

Some six years before Sullivan markedly altered the ground rules for recovery in civil defamation actions, there was decided the case of Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231(1958). The OPINION was written by Circuit Judge (now Mr. Justice) Stewart, sitting in the Second Circuit by designation. In that case Judy Garland sued Columbia Broadcasting System, Inc., alleging that the latter had made false and defamatory statements about her, and had authorized or induced their publication in newspapers. An example of such publication was attached to the complaint in the form of some paragraphs appearing in a TV-radio column written by Marie Torre and printed in the New York Herald Tribune. The column contained several statements about Garland which Torre in her column attributed to a CBS 'network executive.'

In an attempt to learn the name of the alleged detractor, plaintiff deposed three CBS executives without success. In a deposition taken by plaintiff Garland, the columnist refused to disclose her sources and was sentenced to 10 days in jail for criminal contempt. On appeal the Second Circuit upheld the District Court, concluding that resolution of the First Amendment issue in the case before it, although perhaps 'delicate, ' was not 'difficult.' See Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939).

The key factor which the Second Circuit identified as allowing it to move confidently to this conclusion was that the 'question asked of (Torre) went to the heart of the plaintiff's claim.' The decisional process with respect to the constitutional issue before it, said the court, involved a determination of 'whether the interest to be served by compelling the testimony of the witness in the present case justifies some impairment of this First Amendment freedom . . .' Conceding that freedom of the press is 'basic to a free society, ' the court went on to say that 'basic too are courts of justice, armed with the power to discover truth', and that the 'concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does

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the guarantee of a free press.' The court went on to conclude that 'If an additional First Amendment liberty-- the freedom of the press-- is here involved, we do not hesitate to conclude that it too must give place under the Constitution to a paramount public interest in the fair administration of justice.' 4

In striking the constitutional balance contemplated in Garland, it could perhaps be argued that, although the Sullivan decision did not eliminate civil libel suits entirely, it has so downgraded their social importance that a plaintiff's interest in pressing such a claim can rarely, if ever, outweigh a newsman's interest in protecting his sources. The tenor of the Court's opinion in Sullivan may be thought to reflect an attitude toward libel actions palpably different from its approach to grand jury proceedings in Branzburg. There is, however, the matter of the Court's continuing...

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