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1983-1984 Preview U.S. Sup. Ct. Cas. 63 (1983-1984)
Bose 901 Product Disparagement Suit: How Badly Can One Speak About Speakers, The (82-1246)

handle is hein.journals/prvw10 and id is 71 raw text is: The Bose 901 Product Disparagement Suit:
How Badly Can One Speak About Speakers?
by Lee Arbetman

Bose Corporation
Consumers Union of the United States, Inc.
(Docket No. 82-1246)
To be argued November 8, 1983
In this case the Supreme Court is asked to look at a
specific procedural question arising under the line of
public figure/defamation actions that began with the land-
mark case of New York Times v. Sullivan, 376 U.S. 254
(1964). In these lawsuits brought by public figures against
publishers, the Court recognizes that lies and false com-
munications do not serve the ends of the First Amend-
ment. At the same time, the Court also attempts to
preserve our profound national commitment to the prin-
ciple that debate on public issues should be uninhibited,
robust and wide open, to give the freedoms of express-
ion ... the breathing space that they need to survive. (New
York Times)
To provide the necessary breathing space, the Court
has said that public figures can only recover damages in
defamation cases when they produce clear and convincing
proof that the defamatory statement was false and made
with actual malice (i.e., knowledge of falsity or reckless
disregard of the truth or falsity of the statement).
In Bose, a lawsuit was brought against Consumer's
Union (CU) for allegedly disparaging the Bose 901 loud-
speaker in a published analysis of loudspeakers in CU's
monthly magazine. At trial, Bose won a libel judgment of
more than $200,000. On appeal, the First Circuit re-
versed, finding that Bose had not met the precise consti-
tutional standards for actual malice established in the
New York Times case.
To understand the procedural issue here, one must
remember the general rules for legal appeals: 1) questions
of fact are determined at trials by the finder of fact (i.e.,
the jury in a jury case; otherwise by the judge); 2) ques-
tions of fact are not ordinarily reviewable on appeal un-
less the trial court is clearly erroneous, and 3) appellate
courts can and do review questions of law (as opposed to
fact) on appeal.
Lee Arbetman is Adjunct Professor of Law at Georgetown Uni-
versity Law Center and Deputy Director of the National Institute
for Citizen Education in the Law, both in Washington, D.C. He
may be reached at 605 G Street, NW, Washington, D.C. 20001,
telephone (202) 624-8217.

Put simply: Bose won at the trial level by successfully
proving that CU had published a false and disparaging
statement with actual malice. Bose lost on appeal because
the appellate court made its own judgment as to whether
the facts proven by Bose constituted actual malice. In
the appeal to the Supreme Court, Bose argues essentially
that an appellate court has no business overturning the
trialjudge's finding of actual malice.
The May, 1970, issue of Consumer Reports included an
article entitled Loudspeakers which evaluated 24 loud-
speakers based on a series of objective tests and measure-
ments conducted by CU's engineers. The article's review
of the Bose 901 speaker included the following language:
Worse, individual instruments heard through the Bose
system ... tended to wander about the room. Dr. Amar G.
Bose, president of the company and inventor of the
speaker system, sought a retraction of the statement. CU
refused, and Bose filed suit in the Federal Court for the
District of Massachusetts in February of 1971.
Before going to trial, Dr. Bose asked CU to repeat the
tests in his presence, to identify the record(s) used in the
tests, and to use the record(s) with other loudspeakers to
determine whether any unusual audio effect was caused
by the record as opposed to the speaker. CU refused these
requests and stood behind the validity of the evaluation
procedures they had used.
In a lengthy trial, the two CU engineers who had
tested and then reported on the Bose speakers were cross-
examined as to what they had meant by wander about
the room. Their response indicated that they were deal-
ing with an abstract, subjective perception of an ambigu-
ous aural phenomenon. Bose contended       that the
language they used was false and harmful to the sales of
their product.
The trial court found the testimony of CU's engineers
to be lacking in credibility on some important issues and
held that the statement that the instruments wandered
about the room was, in fact, false and disparaging. The
court also found that in the area of loudspeakers Bose was
a public figure. This required that Bose produce clear
and convincing evidence that the statement was false and
disparaging and that the statement was made with actual
malice, as defined in the New York Times case. However,
the trial court accepted Bose's contention that, because
wandering about the room was theoretically impossible
and because CU's engineers were experts, they must have
known that their analysis was false.
On appeal, the First Circuit held it would indepen-

Issue No. 4                                                                                                     63

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