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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 V. Consumers Union of the United States, Inc. (Docket No. 82-1246) To be argued November 8, 1983 ISSUES 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. FACTS 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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