Cranberg v. Consumers Union of U.S., Inc.
| Decision Date | 01 April 1985 |
| Docket Number | No. 83-1912,83-1912 |
| Citation | 756 F.2d 382 |
| Parties | 17 Fed. R. Evid. Serv. 1260, 11 Media L. Rep. 2099 Lawrence CRANBERG, Plaintiff-Appellant, v. CONSUMERS UNION OF U.S., INC., Defendant-Appellee. Lawrence CRANBERG, Plaintiff-Appellant, v. ASSOCIATED PRESS and Austin American Statesman, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lawrence Cranberg, plaintiff-appellant, pro se.
Graves, Dougherty, Hearon & Moody, David H. Donaldson, Jr., R. James George, Jr., Austin, Tex., for Consumers & Austin.
Brown, Maroney, Rose, Baker & Barber, Charles D. Dye, Todd N. Wade, Austin, Tex., for Associated.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, WISDOM, and HIGGINBOTHAM, Circuit Judges.
Dr. Lawrence Cranberg filed these diversity actions for product disparagement and libel against Consumers Union of United States, Inc., (Consumers Union), the publisher of Consumer Reports magazine, and for libel against the Associated Press (AP), and Cox Enterprises, Inc., d/b/a Austin American-Statesman (American-Statesman ). These cases were consolidated for trial on the issue of liability alone. In a nonjury trial, the district court found all defendants not liable. We affirm the finding of the district court.
This law suit was sparked by an article that appeared in the January 1981 issue of Consumer Reports magazine. Dr. Cranberg claims this article libeled him and disparaged his product, the Texas Fireframe. Cranberg is the sole proprietor of the Texas Fireframe Company, which manufactures and sells the Texas Fireframe, a grate he invented for use in building the "slot fire." Cranberg, a physicist, discovered and patented the slot fire, also known as the "physicist's fire." This fire is built by stacking logs in a double-decked arrangement with a larger log in the back. This "C" formation creates a cavity that faces the room and acts as a natural radiator, generating intense heat which is directed out into the room rather than up the chimney. The Texas Fireframe is a double-decked grate developed and patented by Cranberg to hold the logs in the proper stacked formation.
Along with promoting his Fireframe, Cranberg has fervently waged a continuous battle against what he calls the "anti-fireplace hoax"--the belief that fireplaces are inefficient home heating sources because they draw centrally heated air out of the room and allow more heated air to escape through the flue than is sent back into the room. The record contains voluminous examples of Cranberg's activities and writings directed toward dispelling this hoax. Throughout these efforts, Cranberg has challenged the scientific basis underlying the notion that fireplaces waste energy and has asserted that his product, the Texas Fireframe, greatly improves fireplace efficiency.
In its January 1981 issue of Consumer Reports, Consumers Union reviewed a number of fireplace devices to determine their efficiency as domestic heat sources. As stated in the article, Consumers Union set out "to see if a fireplace could be modified in order to pull its weight as an auxiliary heat-provider." One of the devices tested and reported on was the Texas Fireframe.
To conduct its tests in a controlled environment, Consumers Union built a calorimeter room, a room specially designed to measure gain or loss of heat energy. Each device was tested in this room under two scenarios. One test estimated the net heat output in a "log cabin" situation, where the air supplied to the fire is not preheated. The "log cabin" output supposedly shows how much heat is provided when the fireplace is the only source of warmth. The second test dealt with the more common situation, in which the fireplace is operating in a centrally heated home. Unlike the log cabin test, this scenario supposedly accounted for the energy loss occurring from the fire's being fueled by air heated by another source.
As its benchmark for data comparison, Consumers Union built what it called a simple or "standard" fire. This arrangement had the logs placed directly on the hearth, abutting the back wall, and the front of the fireplace covered with a wire-mesh screen. The measurements collected from this base case provided a point for relative comparison of the heat production data collected from the ten devices Consumers Union tested and reviewed. Upon completing its testing, Consumers Union found this standard fire, without a grate or add-on device of any kind, out-performed three of the devices it tested, including the Texas Fireframe.
The discussion of the Texas Fireframe appeared under a subheading "And sometimes you lose." 1 The discussion noted that the Texas Fireframe, while better than ordinary grates, was not as good as Consumers Union's standard fire built directly on the hearth. The article stated the Texas Fireframe would increase the efficiency of a fireplace as compared to a regular one-level grate, but would decrease the efficiency of a fireplace in a centrally heated home as compared to a fireplace with no grate and no device.
Cranberg believed the Consumer Reports article to be completely in error, the testing procedures wholly inaccurate and Consumers Union a perpetrator of the anti-fireplace hoax. He alleged the article disparaged his product and libeled his business and himself.
Cranberg attempted to rectify the perceived injustice perpetrated by Consumers Union against him and his grate. Cranberg prepared a paper disputing Consumers Union's findings and testing methods and emphasizing that the grateless fire, touted by Consumers Union as more energy efficient, would not even ignite and burn effectively. Cranberg wrote to Consumers Union on January 19, 1981 to inform them he planned to present his paper, tentatively titled "Plagarism, Suppression of Evidence, and Misrepresentations in Consumer Reports, January 1981," at the April meeting of the American Physical Society in Baltimore. Cranberg further stated in his letter to Consumers Union that if he did not receive an appropriate response he would mail the paper to the Society with copies to representatives of the media. When Cranberg had not received what he deemed an appropriate response by January 27, he sent an abstract of his paper to news organizations and media personalities to publicize his side of the dispute with Consumers Union. In a letter accompanying the abstract, Cranberg indicated he was challenging the publication and intended to ask the Society to initiate a thorough study of Consumers Union. Dr. Cranberg's express purpose in sending these abstracts, and later the full text of his paper, to these news organizations was to encourage the broadcast of his paper "at least as widely as the story that had been written about [his] product by Consumers Union, [and], preferably much more."
Prior to the convening of the American Physical Society, Cranberg continued his media campaign with mixed success. 2 On the day of the Society meeting, before his presentation, Cranberg was interviewed by various news representatives. As one of these interview sessions was being conducted in the hallway outside the main meeting room, David Berliner, Director of the Office of Public Information for Consumers Union, approached Cranberg. Consumers Union had sent Berliner to the meeting to respond to Cranberg's paper. A verbal confrontation began between Cranberg and Berliner. During the commotion, a fellow Society member indicated to Cranberg that he was being tape recorded by Consumers Union. Although it is uncertain whether the tape recorder was turned on, Cranberg, believing it was, took the recorder and began recording a message to Consumers Union denouncing surreptitious recording. Berliner tried to take the recorder away from Cranberg. Both men tugged at the machine; eventually, one let go. Immediately following this confrontation, Cranberg presented his paper to the Society. Berliner followed with Consumers Union's statement. Both men were given opportunities for rebuttal.
Associated Press reporter, Chris Sullivan, was covering the Society meeting at the request of the New York AP office. Sullivan testified that he spoke to both Cranberg and Berliner before the meeting; he witnessed the struggle over the tape recorder, attended the meeting and heard the presentations by both Cranberg and Berliner. He interviewed both Cranberg and Berliner again after the meeting and was given written copies of the presentations made by each. Sullivan's story went over the AP wire and was published by the American-Statesman.
Following these events, Cranberg filed suit against Consumers Union, the AP and the American-Statesman. These suits were consolidated for trial and heard without a jury on the question of liability only. Dr. Cranberg appeared pro se at the trial and throughout this appeal. In oral findings of fact and conclusions of law issued at the conclusion of the trial, the court credited Sullivan's account of what occurred between Cranberg and Berliner. The court found that the AP story, as written by Sullivan and reprinted by the American-Statesman, was a fair and accurate rendition of what occurred, that Dr. Cranberg was a public figure for the purposes surrounding these events and that Cranberg failed to prove actual malice by either the AP or the American-Statesman.
The district court also found the statements made by Berliner before the American Physical Society were substantially true. In addition, the district court found Cranberg had voluntarily asserted himself into a public controversy and had attempted to influence its resolution, thus, making him a public figure within the limited context of the controversy with Consumers Union. Because Cranberg was a public figure, the court held he must prove actual malice which he failed to do.
As to the claims against Consumers Union, the court found Cranberg failed to disprove the accuracy of the...
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