Warren E. Burger: We'll hear arguments next in Wolston against Reader's Digest. We'll wait another minute or so, counsel, while your audience is reduced. I think you may proceed whenever you're ready Mr. Dickstein.
Sidney Dickstein: Thank you. Mr. Chief Justice, and may it please the Court. Petitioner in this case is Ilya Wolston who is the nephew of Jack and Myra Soble, admitted Soviet espionage agents. Following the Soble's arrest in 1957 in their later plea of guilty to espionage charges, Wolston received and failed to comply with the grand jury subpoena. Following commencement of the trial on the resulting contempt charge, Wolston pleaded guilty, received a one-year suspended sentence conditioned on his future cooperation with federal authorities and was placed on three years probation. Newspaper stories relating to Wolston's failure to appear in his contempt hearing, his plea and his sentence were published between July 15 and August 14, 1958. As the District Court observed however, Wolston had led a thoroughly private existence and was generally unknown until his failure to appear before the grand jury became public knowledge. And after the flurry of publicity attending his conviction ceased, he apparently succeeded for the most part in resuming his private ways. The defamatory statements at issue here are found in a book entitled KGB, the Secret Work of Soviet Agents, which was written by John Barron an employee of the Reader's Digest Association Inc. It was published in 1974 by Reader's Digest press and republished by two book clubs and in paperback by Bantam Books. The defamatory statements on the book identified petitioner as a Soviet agent undifferentiated from the Rosenbergs, William Remington, Judith Coplon, Harry Gold, and other infamous figures of Soviet espionage. A footnote to the identification of Wolston as a Soviet agent can be read to mean that petitioners -- petitioner had been indicted for espionage as well as convicted of contempt of court. Following petitioner's filing of this action a diversity action in the District of Columbia, the author of KGB was deposed. He testified that his identification of Wolston as a Soviet agent was predicated upon a 1960 FBI report --
William H. Rehnquist: Mr. Dickstein, could I ask you the same question I asked counsel in the case preceding, then the source of law is District of Columbia law?
Sidney Dickstein: The source of law in so far as federal issues are not concerned and is of course the District of Columbia.
William H. Rehnquist: The basic right rise out of the District of Columbia law.
Sidney Dickstein: That is correct, it does. Barron also testified that prior to and while he was writing KGB, he was completely familiar with the book entitled “My Ten Years as a Counterspy” which was written by Boris Morros and published in 1959. In this book, Morros recounts that Soble has identified his nephew Wolston as “Slava” a person who would purportedly furnish Soble with information. Morros' book referred to Wolston sentenced for contempt of court, but the book concluded that he knew nothing about Wolston's activities except that which Soble and I quote “a confirmed liar” had told him. Barron testified that notwithstanding his authorization to invest as much time and research as necessary on the book, the full backing of the Reader's Digest organization, the assignment to him of a fulltime researcher, his use of the worldwide research facilities of the Reader's Digest and cooperation by the FBI and other federal agencies which had been assured and which he received. In the over four years that this book was in preparation, he made no attempt to verify the information set out in the book concerning Wolston and relied he said solely on the FBI report. With regard to the footnote reference in the book which the District Court and the Court of Appeals both agreed appear to state falsely that Wolston had been indicted for espionage. Barron testified that he knew that Wolston had not been indicted, but that the persons to which the note refer, which included Wolston, had been convicted of espionage or falsifying information or perjury and/or contempt charges. And that I take it meant Wolston following the espionage indictment of other people. In support of the defendant's motion for summary judgment, Barron submitted an affidavit in which he says “I was confident upon publication of KGB that the book as a whole and each and every statement in it were true, and I was aware of no fact that tended to make me doubt the truth of the book or of any statement in it.” He added that “At no time have I been aware of any fact that will give me reason to doubt the FBI report or any statement in it.”
William H. Rehnquist: Isn't it the rule on summary judgment that where a party defendant makes an affidavit that he's not only got -- you have right to depose him but that the District Court has to resolve issues against him if they are triable issues of fact?
Sidney Dickstein: That is the normal rule of course, but that is not the rule that was followed by the courts below. In fact that is not the rule which appears to pertain in the District of Columbia where there is a special rule that deals with matters of summary -- deals with motions for summary judgment --
William H. Rehnquist: Then what's the basis for --
Sidney Dickstein: -- than matters involving libel.
William H. Rehnquist: What's the basis for any different rule on a libel case?
Sidney Dickstein: It seems to have been suggested that the very existence, persistence if you would of a lawsuit which can otherwise be nipped in the bud at an early stage, has a chilling and inhibiting effect upon the press which is force to continue to defend that case from the normal processes of trial. And so, summary judgment is encouraged in the District of Columbia and in the Fifth Circuit as well. That is the rule that was applied here, because as we think is evident from the record, and I refer to this. If inferences were drawn which could fairly have been drawn, even if an actual malice standard were to have been applied, a jury could've concluded that Barron did entertain serious doubts about the truth of the allegation, the accusation that Wolston was a Soviet agent but went ahead and published anyway. The courts below did apply the actual malice standard here. Purporting to follow this Court's opinions in Gertz and Firestone, they concluded that Wolston was a public figure. And crediting Barron self-serving assertion, they concluded that malice could not be shown and granted summary judgment for the defendants. It is from that summary judgment that we are before this Court.
William H. Rehnquist: Did you seek to the fullest ground?
Sidney Dickstein: We did in fact oppose him, Your Honor.
William H. Rehnquist: And they nonetheless chose to believe his statement without a trial of fact?
Sidney Dickstein: That is correct precisely. The basis for the conclusion of the courts below, that Wolston was a public figure subject to the actual malice standard, was that in failing to comply with the subpoena, he had voluntarily exposed himself to the publicity that might and did in fact ensue.
Warren E. Burger: In your view, is the issue of whether or not a person is a public figure invariably a fact issue for a jury? Or where would you put it in the range since you seem to suggest some special rules about First Amendment cases.
Sidney Dickstein: Your Honor, we argued in the courts below that the question of whether one is or is not a public figure in a close case would be a question for a jury. We have not raised that here and we don't argue it here because we do not think this is a close case. We think this is a case in which Wolston cannot be classified as a public figure and hence no fact issue arises which would give -- which a jury would have to consider. It is possible to postulate a case, to hypothesize a case in which an individual whose -- to whom public attention was drawn as a consequence of action which was contemptuous or in any other way in violation of the criminal law, could be said to have made a political statement by his conduct. One -- the case of a Hollywood Ten is brought to mind, where in their actions which were at one in the same time held to be in contempt of Congress. It was clear that they were making political statements. If it occurred that it was -- that there were fact issues and if were there ambiguities as to whether or not someone was a public figure under those circumstances, then possibly a jury question might be presented. We do not think one is presented here. The reason why the courts below held that Wolston was a public figure beyond any question of a doubt, I suppose, was that they found in his actions the kind of voluntariness which this Court they said had in mind in Gertz. Our reading of Gertz to the contrary was dismissed just too literal, too restrictive. But we submit that the significant language of this Court's opinions dealing with public persons simply can not embrace petitioner Wolston. He had no fame or notoriety of achievement. Certain he occupied no rule of special prominence in the inference of society, nor did he attempt to influence society with respect to the outcome of public issues.
Harry A. Blackmun: Counsel, your argument now centers on 1958 as well as on 1974, does it not?
Sidney Dickstein: Yes, it does.
Harry A. Blackmun: If you lose on the form or if he were a public figure in 1958, have you abandoned the argument that he ceased to be one in 1974?
Sidney Dickstein: Yes, we have.
Harry A. Blackmun: Could I ask why? You made the argument in the courts below.
Sidney Dickstein: Yes, we did, Your Honor. Upon reflection, and I must say in part at least persuaded by the views expressed by the courts below. We reach the conclusion that the rights of privacy and the rights of defamation are so different than apart. That while it could be argued that one who had lost his right of privacy in 1958 would have had it restored by 1974, that in a work of this kind, a work which is purportedly and I suppose on its face to be regarded as a reflective work of history. If one were a public figure in 1958, one would remain a public figure for the purpose of commenting upon those same events in a historical work published in 1974. And so yes, Your Honor, we did abandon that contention.
Harry A. Blackmun: Would it -- would the passage of time also serve to impose on the defendants a greater measure of operation in the recklessness concept?
Sidney Dickstein: We think so and certainly so, in fact --
Harry A. Blackmun: Well, haven't you lost that by abandoning your argument?
Sidney Dickstein: No, we don't -- as a matter of fact, it's raised in our reply brief, Your Honor, because in determining what is reasonable care if that is to be the standard if negligence is applicable here. Or even in determining actual malice, and the Court was very careful to note in St. Amant but what the definition of actual malice would be and presumably the facts which would support it would vary from case to case. We think the circumstances are particularly important. Here where there was an interim period between the event and the publication of 16 years, 16 years of opportunity for reflection and four years of writing and opportunity for determination, for research, for checking out, for interviewing and those opportunities were foregone. We believe that those circumstances demonstrate negligence in the first instance, and we believe that they would satisfy the actual malice standard as well if that were the issue here. We do not think that one can treat this book as if it were a hot news written by the Washington Post say on the morning of publication of the FBI report. And so we do think there's a difference and we haven't abandoned that.
Potter Stewart: You say you filed a reply brief?
Sidney Dickstein: Yes, we did, Your Honor.
Potter Stewart: I don't seem to have it.
Sidney Dickstein: This is being in form of porous case. The reply brief was not printed. I do not believe the clerk is able to print it prior to the argument itself. We agree that Wolston by his actions became newsworthy, and it is clear that if the plurality opinion in Rosenbloom were the law, the actual malice standard would be applicable to petitioner's case. But we believe it strange in fact distorts the plain meaning of this Court's opinion in Gertz to equate petitioner's conduct with the inviting of attention and public comment, which is one of the hallmarks of a public figure. It has been said that we read Gertz too literally, but we think the Court meant exactly what it said in Gertz. To invite means to welcome, to solicit, to court, to entice and that is what public figures indeed do. Whether they're public figures for all purposes or for single issues, for unless they attract public attention, they can not achieve their purpose and it is precisely because they purposefully seek public attention that the press has accorded more room in dealing with them.
Harry A. Blackmun: Well doesn't that approach really restrict the public figure to those who indulge in political speech?
Sidney Dickstein: Not at all. The public issues, which I think are the concern of the cases beginning with Times v. Sullivan in its project, are not necessarily limited to political issues. We do not so contend, I don't think the Court has so held. There is a whole range of public issues which are matters of public concern, but the focus of course is on the activities of the -- of the plaintiff in the defamation suit not on the surrounding circumstances which gave rise to the defamation. There are other ways in which Wolston simply does not match up to what this Court has held a public figure to be in Gertz and Firestone. One thing is crystal clear, unlike Wally Butts in General Walker, Wolston did not command sufficient continuing public interest nor to be have sufficient access to the moons of counter-argument to be able to expose through discussion the falsehood and fallacies of the defamatory statements. One wonders how these falsehoods could've been exposed.
Warren E. Burger: We'll resume there at 1 o'clock Mr. Dickstein.
Sidney Dickstein: Thank you.
Warren E. Burger: Mr. Dickstein you are going to rest at this point and reserve?
Sidney Dickstein: And reserve the rest of my time for rebuttal.
Warren E. Burger: Very well. Mr. Buckley.
John J. Buckley, Jr.: Mr. Chief Justice, and may it please the Court. In Gertz this Court stated that public figures are persons whose actions invite attention and comment in the context of a public controversy.
Warren E. Burger: That isn't the only thing -- the only definition or was it?
John J. Buckley, Jr.: That's correct Your Honor there are other definitions. For example there are some individuals who have attained a degree of prominence in society generally who may be public figures merely by virtue of their status. But there are other individuals who have engaged in conduct which invites if not compels public attention and comment in a context of a public controversy and therefore become public figures by that virtue of that voluntary conduct. In this case, Wolston's conduct fit that description precisely. He failed to comply with a subpoena issued by a grand jury investigating Soviet espionage.
Warren E. Burger: In what year was that?
John J. Buckley, Jr.: In 1958. That conduct occurred in a midst of a public controversy over Soviet espionage and that conduct in fact invited and resulted in attention and comment. Now the larger controversy --Is that -- Mr. Buckley, would that be true of any criminal defendant then that the press is free to libel or defame him in the subject only to liability under the public figure standards?
John J. Buckley, Jr.: I think that is generally the case that a person who engages in criminal conduct will result in being a public figure at least for a limited range of issues relating to his conviction. In this case however --
Warren E. Burger: Well what if he's acquitted?
John J. Buckley, Jr.: Your Honor, if he's acquitted then it poses a more difficult question. Of course in this case, the citation for contempt resulted in a plea of guilty to the charge. If a person is however acquitted, then there will still remain the question whether he engaged in voluntary conduct which invited attention and comment.
Byron R. White: Well Mr. Buckley you said he remains -- he's a public figure for a narrow range of issues. You wouldn't suggest that a person who's convicted of burglary or armored car robbery in 1958 is a necessarily a public figure if he's accused of doing the same thing in 1979? He's never been heard of since, the only thing is he's accused of robbing another armored truck in 1979.
John J. Buckley, Jr.: Well I would say, Your Honor, that he would not be a public figure for the purposes of comment for example --
Byron R. White: But although he might be with respect to his -- the 1958 episode.
John J. Buckley, Jr.: That's right. He would not be for purposes of a statement that he was a Soviet agent as in this case. He might not be for some unrelated criminal conduct. He certainly would be for the criminal conduct for which he was convicted. And in this case --
Byron R. White: You mean he remains a public figure if he were accused of being a Soviet agent today? He would still be a public figure?
John J. Buckley, Jr.: Well I think in this case, of course, one need not reach that result.
Byron R. White: I know but your statement awhile ago indicated that yes he would be a public figure.
John J. Buckley, Jr.: If the statement was to the effect that he was in the 50's and remains today, I would submit that he would be a public figure for those purposes because the controversy is an ongoing one. Now --
Byron R. White: Well he's never been heard of since.
John J. Buckley, Jr.: Well, of course again in this case were limited to his -- it's limited to historical comments on what he was in the 1950's.
Byron R. White: Alright.
Thurgood Marshall: How many people are usually arrested in New York City in any one day?
John J. Buckley, Jr.: Your Honor, I have no idea. I would posit, it's in the hundreds.
Thurgood Marshall: Would they all be public figures?
John J. Buckley, Jr.: I think they would all be public figures for the purposes --
Thurgood Marshall: Well for the record, I can't remember the name of one of them.
John J. Buckley, Jr.: Well if one looks at the rationale --
Thurgood Marshall: How do they become a public figure nobody ever heard of them?
John J. Buckley, Jr.: Well certainly after their conviction they are, I would submit, a public figure for the purposes of comments on their criminal conduct in which they engaged.
Thurgood Marshall: If they never reached the newspapers?
John J. Buckley, Jr.: No because of the nature of criminal conduct --
Thurgood Marshall: If they've never -- yes if they never reached the newspapers?
John J. Buckley, Jr.: Yes, Your Honor.
Thurgood Marshall: They've been --
John J. Buckley, Jr.: Even if they never reach the newspaper. And the reason is this.
Thurgood Marshall: What do you mean by public?
John J. Buckley, Jr.: Pardon me?
John J. Buckley, Jr.: What do you mean by public?
John J. Buckley, Jr.: Well first of all --
Thurgood Marshall: Public, what do you mean by that?
John J. Buckley, Jr.: That's right. First of all, it requires conduct committed in the midst of a public controversy. Now when someone engages in --
Thurgood Marshall: You mean a public controversy is that when a man is charged with a crime?
John J. Buckley, Jr.: That's right. And the controversy revolves around the conduct for which --
Thurgood Marshall: Well this -- my case, my hypothetical is no controversy if he pleaded guilty.
John J. Buckley, Jr.: He pleaded guilty, correct.
Thurgood Marshall: So there's no -- it takes controversy out doesn't it?
John J. Buckley, Jr.: Well by the guilty plea he has confessed that he engaged in voluntary conduct that was criminal.
Thurgood Marshall: So he becomes a public figure?
John J. Buckley, Jr.: Yes.
Thurgood Marshall: And nobody ever heard of him.
John J. Buckley, Jr.: I don't think it makes any difference for the following reasons that --
Thurgood Marshall: That -- I mean Firestone didn't even go that far, did it?
Warren E. Burger: Well if you mean if no one ever heard about a person they are still a public figure?
John J. Buckley, Jr.: Of course we say to begin with --
Warren E. Burger: Well, I mean why --
John J. Buckley, Jr.: -- in this case --
Warren E. Burger: -- his mother and father know about him. But --
Thurgood Marshall: Doesn't say it.
John J. Buckley, Jr.: But he say the police were aware of his actions because that resulted in his arrest and eventually in his conviction. Let me say that in this case, we're not -- it's not dealing with a totally obscured figure because as a result of Wolston's conviction for contempt in 1958, he received at that time a fair degree of publicity and at least 15 newspapers published in two cities at that time in a book written by Boris Morros in 1959, and in an FBI report published in 1960. All of which discussed his failure to appear before the grand jury and his guilty plea to contempt all show the notoriety which Wolston gained for himself by his unlawful conduct.
William H. Rehnquist: Do you say that was an instance of his injecting himself into a controversy intentionally?
John J. Buckley, Jr.: Yes, I would say so. For this reason that Wolston became an activist for the purpose of insuring that he did not appear before that grand jury on July 1, 1958. Initially of course he received a subpoena. That's how you'll basis for a complaint on his part of course because as this Court has held the law and the grand jury as its embodiment is entitled to every man's evidence. But that did not compel Wolston to do what he in fact did. He had two lawful alternatives to comply with the subpoena or to move to quash the subpoena if he thought it to be unreasonable, oppressive or in violation of any constitutional or statutory right.
Warren E. Burger: But if he complied with the subpoena, he might get a lot more publicity than if he refused to comply, isn't that a possibility?
John J. Buckley, Jr.: But his conduct could not be said to be as it can fairly be here to have been on such a nature as to have invited defamatory comments as to have opened the door to speculation on the basis for his refusal to comply with the subpoena.
Warren E. Burger: Now you use the phrase invite defamatory comments. Who invites defamatory comments?
John J. Buckley, Jr.: I think when one engages in conduct which inevitably attracts by its very nature, public comment and attention, and especially when that conduct is criminal conduct that it invites people to discuss his actions particularly where that conduct is committed in the midst of a federal investigation into Soviet espionage. It sparks the public debate, it arouses public's interests. It runs the risk of closer public scrutiny and of course even more than if he had mounted a rostrum, it constitutes on his part a relinquishment of some measure of his interest in the protection of his own good name. It opens the door --
Thurgood Marshall: You merely mean he invites discussion, not defamation.
John J. Buckley, Jr.: Well, I did say that no --
Thurgood Marshall: It does invite somebody to tell a lie --
John J. Buckley, Jr.: I would say your observation --
Thurgood Marshall: It does invite somebody to tell a lie?
John J. Buckley, Jr.: I would say Your Honor's observation is true in every case of a public figure including someone who runs for office. In those senses he invite lies, but he is nonetheless a public figure. So here in this case, Wolston engaged in conduct that bears all the earmarks of public figure status under Gertz. Conduct which attracted public attention in the midst of a public controversy which ran the risk of closer public scrutiny, which constituted a relinquishment of some measure of his interest in protecting his own good name, and which invariably opened the door to speculation on the reasons for his refusal to comply with the subpoena including the possible and related inference that he was in fact a spy.
Warren E. Burger: Now, he is an American citizen, is he not?
John J. Buckley, Jr.: Yes, Your Honor, he is.
Warren E. Burger: Now if you were to say that it's an American citizen who is asked to help in an inquiry into foreign espionage refuses to assist the United States Government, then I can understand your argument that he has at least, if invited is not the right word, he has -- he must take into account that that will attract a lot of attention. That I can understand.
John J. Buckley, Jr.: Certainly a person who engages in criminal conduct to refuse to bear a subpoena, invites comment on his actions. That's invariable consequence of his refusal to appear, and it certainly was in this case. After all, if one pauses for a moment to look at the context in which this conduct occurred, the FBI had been engaged in a ten-year investigation of Soviet espionage. The Soble's --
Thurgood Marshall: Well, certainly that wasn't public.
John J. Buckley, Jr.: It was at the time of the arrest, the culmination --
Thurgood Marshall: The FBI's probing was public?
John J. Buckley, Jr.: It became public in January 1957 when --
Thurgood Marshall: And it's after the fact?
John J. Buckley, Jr.: No, it's before the fact. When as a result --
Thurgood Marshall: Before the fact?
John J. Buckley, Jr.: Before the fact, because --
Thurgood Marshall: When the CIA too, I read it, I mean I didn't -- I thought these were secret outfits.
John J. Buckley, Jr.: Well the investigation had been going on for ten years. It culminated in the arrest of the Soble's --
Thurgood Marshall: The Soble's were secret, but you said it was public.
John J. Buckley, Jr.: It was a controversy that was going on because there was an investigation. It first came to the public for in early 1957. But at that time it built up even increasing momentum. The Soble's, Wolston's aunt and uncle were indicted for espionage, entered pleas of guilty and thereafter cooperated with the federal grand jury. In the ensuing months, a series of additional indictments were handed down against others involved in the spy ring. The stage had thus been set for Wolston. The subject of Soviet espionage by the middle of 1958 had achieved a prominence in the public's mind, after all it did concern national security. His failure to appear was the climax of an unsuccessful 15-month effort by the grand jury to obtain his testimony. Now --
William H. Rehnquist: Well it sounds like that's the metro media plurality test, if it whatever attracts public attention, make somebody a public figure.
John J. Buckley, Jr.: Now, for this reason that we're not relying here only on the fact that this conduct attained publicity, but on the fact that the conduct by its nature invariably attracted, invited and compelled comment and attention. After all there is the clear language of Gertz that public figures are persons who invite attention and comment in public controversies.
William H. Rehnquist: But I would've meant a voluntary, I mean that they deliberately invite them.
John J. Buckley, Jr.: Well, let's examine that. I think the position taken by petitioner here is that to be a public figure it is not enough to have engaged in conduct attracting by its very nature attention and comments in a controversy, but to have desired the publicity as well. That is I believe the nub of his theory. Let's look at it from two standpoints. The first is from a jurisprudential standpoint. The determination of what a public figure's personal or subjective motive is, I would submit, a very dicey task at best. A person who engages in criminal conduct to disrupt a government ceremony may have a whole panoply of whole motives, saddling the press with proving what the causative or primary motive was in engaging that conduct, I would submit does not promote the constitutional values involved.
William H. Rehnquist: It's a dicey task to determine actual malice under the New York Times standard too, isn't it?
John J. Buckley, Jr.: That's right. But I think here, I don't think that important distinctions in the measure of constitutional protection of free speech should turn on so supra in enterprise. But let me take it to a different stage which is, let's look at it in terms of the two values or two interests accommodated by the public figure doctrine. Now what this theory would require is dividing a class of libel plaintiffs. All of whom took conduct which invited and attracted public attention and controversy and comment in a controversy into two subclasses which would depend on the method by which they use to affect the controversy or to attain the notoriety. So for example, the division would be between voluntary conduct which purposely seeks notoriety, and voluntary conduct which inevitably by its nature attracts notoriety. Between open advocacy of a particular results and conduct which inevitably affects or has that same result. So Wolston here says in his brief that he will be a public figure if he had mounted a rostrum and argued against his grand jury appearance. But that he shouldn't be if he merely engaged in a contempt precluding his grand jury appearance. The first interest accommodated by the public figure doctrine is the public's need to know. How is that need to know any less in one case than in the other? The citizen in becoming informed about Soviet espionage has as much a need to know about someone such as Wolston who commits a contemptuous act precluding the grand jury from obtaining his testimony as it would about Wolston if he merely advocated against it. Indeed the need in this case would be greater because he didn't just talk about it, he did something about it.
William H. Rehnquist: Precisely that same dichotomy is involved in his libel defendants with 20 newspapers who all published the same story. The libel plaintiff is equally damaged by all 20 of them, but if it's published with actual malice there can be recovery. If it's published without actual malice, there can't be. And yet the good name is equally tarnished regardless of the motive.
John J. Buckley, Jr.: Well here in both instances by the same degree, the conduct engaged in by the public actor, either in mounting a rostrum or in engaging in conduct which criminal conduct which attracts publicity is the same. But it's the public's need to know is the same as no reason to draw a line between the two. In fact the need to know is greater in the case where one speaks about pure conduct that in the case when one speaks about pure advocacy. The other interest to be accommodated under the public figure standard is the reputational interests of the public figure, which are regarded as less than the wholly private person because he has committed conduct which has in created and enhanced likelihood of defamatory statements being made about him because he has invited indeed the very types of comments about which he now complains. Now, surely that's true whether Wolston mounts a rostrum to argue against his grand jury appearance as it would be if he in fact took contemptuous conduct precluding his grand jury appearance. In both instances to the same degree, the conduct creates an enhanced likelihood of defamatory statements. It runs a risk of closer public scrutiny, and it --
Lewis F. Powell, Jr.: Mr. Buckley, your analogy to mounting a rostrum prompts me to ask this question. Sort of absurd to think about anybody getting on a rostrum to argue against complying with the subpoena, you just -- that isn't the kind of public debate one gets into when he gets a legal process served on him. And I noticed the language in Gertz describing the public figure emphasized as being drawn into a public controversy, and in the last sentence he assumes special prominence in the resolution of public question. Now what is the public controversy or the public question that his man had prominence in?
John J. Buckley, Jr.: The public --
Lewis F. Powell, Jr.: Is it something that could be resolved by the public?
John J. Buckley, Jr.: The public controversy was the controversy over Soviet espionage and the actions --
Lewis F. Powell, Jr.: What was the controversy? Everybody is against Soviet espionage. There aren't pros and cons about that are they?
John J. Buckley, Jr.: I don't think that the term necessarily means that it's limited to some matter that is about to be put to a referendum.
Lewis F. Powell, Jr.: Well isn't it supposedly a controversy over a debatable issue on which people in the public might disagree. Otherwise, what's the purpose of this whole area of free speech?
John J. Buckley, Jr.: Well I think that under that statement it qualifies as well, because in all instances, particularly in this instance where we had a ten-year investigation by the FBI into Soviet espionage, actions by the grand jury spanning well over a year and a half. There was a controversy over the subject of --
Lewis F. Powell, Jr.: What was the public controversy?
John J. Buckley, Jr.: The controversy was over the propriety of the actions by the public officials running the investigation, by the grand jury conducting it. It was in every sense something that related to the matters of governance.
Lewis F. Powell, Jr.: The matters of public controversy over whether the investigation was being conducted properly?
John J. Buckley, Jr.: That's right.
Lewis F. Powell, Jr.: And what did he had to do with that controversy?
John J. Buckley, Jr.: Because he became an activist for the purpose of ensuring that the grand jury did not obtain his testimony regarding Soviet espionage and did so by his own voluntary conduct.
Warren E. Burger: Going back a bit, I don't have the timeframe in mind but in the middle 50's, was there a great deal of controversy, public controversy over the methods being used to investigate Soviet espionage --
John J. Buckley, Jr.: Yes.
Warren E. Burger: -- and borderline conduct?
John J. Buckley, Jr.: Certainly so.
Warren E. Burger: Is that the kind of controversy you're talking about?
John J. Buckley, Jr.: Let me say to begin with.
Warren E. Burger: Criticism of the FBI for example, under the CIA?
John J. Buckley, Jr.: That certainly could be that let me say to begin with though that anytime the government takes actions particularly in the context of an investigation of Soviet espionage, there is a matter pertaining to the affairs of governance about which the public a right to be informed. Now let's -- in Firestone this Court focused on meaning of the phrase public controversy and the Court held that a matrimonial dispute is not a public controversy under the reasoning that --
Warren E. Burger: Well, it wasn't that broad, in the setting of that case.
John J. Buckley, Jr.: Right. The dissolution of a marriage --
Warren E. Burger: That particular case was not a public controversy.
John J. Buckley, Jr.: Right, that's correct. And the Court's rationale was that at heart, this was a dispute between of course two spouses that had only been brought into the court because of the requirements of the state. And that dispute between two spouses in a marriage is a private domestic affair about -- that does not qualify as a public controversy. Now in this case, there is a clear difference. The commission of criminal conduct by Wolston, if there was not already a controversy ongoing, created a new one that is a controversy involving himself on one side and the federal government on the other.
Thurgood Marshall: How public was he? Everybody did know about him.
John J. Buckley, Jr.: Well there were 15 newspapers that were published at the time.
Thurgood Marshall: When did you first hear about Mr. Wolston, you?
John J. Buckley, Jr.: Me, personally?
Thurgood Marshall: Yes. Before he walked into your office?
John J. Buckley, Jr.: He never came into my office though.
Thurgood Marshall: But did you take deposition?
John J. Buckley, Jr.: I was not in the case at the time that the deposition was taken, so I came to this case --
Thurgood Marshall: Well, was that the first time you heard of him?
John J. Buckley, Jr.: Pardon me?
Thurgood Marshall: Was that the first time you ever heard of him?
John J. Buckley, Jr.: I suppose if I had been a better student and had read more widely in the area, I'd be able to give Your Honor a response that I did know about him.
Thurgood Marshall: Because my next question would be to name one other one that was involved.
John J. Buckley, Jr.: Well let me put it in this way. Well, obviously first of all there were ten individuals who were identified as Soviet agents as a result of this FBI investigation. Many of them were well known, Jack Soble for one, his wife another, The Sterns and on that down the list. This was no secret investigation, it --
Lewis F. Powell, Jr.: It's ironic, you know, to think of someone trying to conceal his activities as a spy being a public figure.
John J. Buckley, Jr.: Well I don't think it's --
Lewis F. Powell, Jr.: And that's why I did not --
John J. Buckley, Jr.: -- I don't think it's ironic at all, it's because espionage inevitably invites and attracts publicity that it must be done covertly. If one is going to steal the plans to the hydrogen bomb and how they go about it by walking in, in broad daylight into the Pentagon and looking for the plans. But nevertheless, it's because of the recognition that if someone knew what you were up to, the press would indeed be interested in it by its very nature.
Lewis F. Powell, Jr.: Mr. Buckley -- if you really know all about this person then you'd know he really belonged in the public domain.
John J. Buckley, Jr.: That's right, that's right.
Potter Stewart: Have you read the petitioner's reply brief, Mr. Buckley?
John J. Buckley, Jr.: Yes, I have.
Potter Stewart: I asked you because I'd not read it until the lunch hour, I had not seen it. As you know in that reply brief the distinction is made between the loss of privacy and the public figure. it may well be that a person who commits a criminal offense or allegedly commits one or somebody who resists his subpoena, loses any claim he may have to privacy with respect to publicity of that fact, publicity of emanating from his conduct. But does it follow, and that loss of publicity serves to satisfy at least one of the interests that you described to us? Does it necessarily follow or should it that loss of privacy is equivalent to becoming a public figure?
John J. Buckley, Jr.: I don't think in each and every case someone who is a public figure under privacy law is so the purposes of libel law as well. But certainly in the context of this case I would submit that the result should be the same, because someone like author Barron in writing a book on the KGB and in discussing the more recent disclosures concerning the activities of that organization, has a compelling need to refer to the history of the controversy to the background and how these present events evolve. In fact --
Potter Stewart: Well that's -- and to be sure, when the petitioner resisted the subpoena and didn't appear, there could've been legitimate reporting of that fact, and he would've had no right to hold anybody liable for reporting it because he'd lost his privacy pro tanto. But does it follow, does it necessarily follow at all that are, or the two at all equivalent that he is there by a public figure?
John J. Buckley, Jr.: I don't think it follows in each and every case. But if one looks at the earmarks of public figure status identified in the Gertz opinion. But I think that in this case it follows at least in respect to someone who engages in a criminal contempt.
Potter Stewart: And one can understand if a person becomes a candidate for governor or mayor or president or indeed if he's elected to any one of those offices he is a public figure and he does invite adverse criticism, some of which will be false probably. And he knows it's going to come and that's a true public figure, but if somebody simply is arrested for robbery or having contempt for disobedience of a subpoena, he loses his privacy but it certainly doesn't follow he'd becomes a public figure and can reasonably expect or have or be said to have invited adverse and perhaps false defamatory comment.
John J. Buckley, Jr.: I think he has, because the conduct by its very nature attracts attention and notoriety, criminal conduct, I think always --
Potter Stewart: When you're reporting a fact.
John J. Buckley, Jr.: Well, but these are the earmarks of public figure status under Gertz.
Potter Stewart: No, running for office is quite a different thing, isn't it or holding public office?
John J. Buckley, Jr.: Well he creates the enhanced possibility by criminal conduct of the very types of comments about which he now complains. And just as much if he had ran for office to have an affect upon the governmental process, the failure to appear before a federal grand jury in response to a subpoena has a direct effect, which more then if he had mounted a rostrum upon the governmental process.
Potter Stewart: Do you think they're basically equivalent as so far as the law and the Constitution goes, resisting a subpoena and running for the presidency?
John J. Buckley, Jr.: I wouldn't say that in order to qualify for a public figure one has to almost be a public official. But in this context I think it was sufficient.
Potter Stewart: Well Mr. Ralph Nader is a public figure but doesn't hold any public office, I suppose.
John J. Buckley, Jr.: That's right.
Potter Stewart: What if it's just an ordinary citizen, secretary, clerk and the government is accosted on the street by a policeman who wants to arrest him and has no reason. And some opinions of some courts have said that citizen may resist an unlawful arrest, and that person does resist the arrest and puts his name in the paper and on the evening television news. That make him a public figure?
John J. Buckley, Jr.: Well, it would depend on whether he in fact engaged in criminal conduct.
Potter Stewart: But why?
John J. Buckley, Jr.: That's what's this case is all about, the commission of criminal conduct.
Potter Stewart: I know but just what I've said to you.
John J. Buckley, Jr.: And later on --
Potter Stewart: No court has yet decided whether he is engaged in criminal conduct here.
John J. Buckley, Jr.: Well, I think that might well depend on an examination of the -- of what happened thereafter. If eventually he was convicted --
Thurgood Marshall: Mr. Buckley, trying to bring you back to my brother Stewart's point, a very simple question. If in 1950, an incident occurred when a man was admittedly a public figure that you and I and everybody else agree on. And something had published in 1970, and he is now going to a monastery, what would happen on this?
John J. Buckley, Jr.: If the public controversy was still alive, I think he would still be a --
Thurgood Marshall: No, would that be determined in fact to whether the controversy was still alive?
John J. Buckley, Jr.: Or if the comment pertained to with a --
Thurgood Marshall: No the comment pertains solely to what he did in 1950.
John J. Buckley, Jr.: Then he's a public figure for those purposes, yes.
Thurgood Marshall: And then he went to publish in 1970 as protected even though in 1970 he's in a monastery.
John J. Buckley, Jr.: I think it's impossible to write a book such as KGB without referring to the history of the activities of that agency. And certainly I think it would not make sense in that regard to have on every page the constitutional standard varying back and forth depending on the time period in which the conduct or the comment refers to.
Thurgood Marshall: Yes but you -- you're injuring a man who is a private figure.
John J. Buckley, Jr.: He's a public figure as I --
Thurgood Marshall: No, no. In 1970 he's in the monastery, that's rather private.
John J. Buckley, Jr.: He's still a public figure for the limited range of issues relating to his earlier conduct.
Thurgood Marshall: That's your position?
John J. Buckley, Jr.: That is.
Byron R. White: Mr. Buckley, would you say he is a public figure if he hadn't been convicted for contempt?
John J. Buckley, Jr.: I think that would create a much more difficult question, because I'm not saying he would necessarily would not be because the criminal law imposes standards that are different from those and posed for trimming whether someone is a public figure. For example, proof beyond a reasonable doubt specific criminal intent. One might engage of course in conduct that is not criminal and still be a public figure, and if he could not --
Byron R. White: Well, if I'm accused of a crime and for some kind of pretrial or during trial conduct, I am convicted of contempt, criminal contempt. But I haven't been convicted of any other crime, and then the newspaper makes some comments about me that are libelous about -- they refer to me as the one who committed the offense for which I am on trial and I'm acquitted. Am I a public figure for it?
John J. Buckley, Jr.: Well if you're acquitted of the charge --
Byron R. White: Well I know, but I'm -- is it just because I'm convicted for contempt is that enough to --
John J. Buckley, Jr.: In this case, it certainly is because the --
Byron R. White: Well in my case, in my case.
John J. Buckley, Jr.: In your case, the lawyer eventually was not convicted for contempt.
Byron R. White: No, he is convicted of contempt, but he's acquitted of the crime for which he was on trial. This is, I'm charged with a crime of safe cracking, whatever, and then in pretrial proceedings or during trial I'm convicted of contempt, criminal contempt.
John J. Buckley, Jr.: You are --
Byron R. White: Do I -- right then and there become a public figure or was I already just because I was accused?
John J. Buckley, Jr.: No, after you are convicted to be sure, you --
Byron R. White: Of criminal contempt that is.
John J. Buckley, Jr.: Right.
Byron R. White: And anything they might say about my guilt for safe cracking is subject to the public figure standard?
John J. Buckley, Jr.: I'm not arguing that here. I'm not saying that --
Byron R. White: But you were.
John J. Buckley, Jr.: But I'm saying that if there was any -- if you became a public figure as result of your conviction for contempt then for purposes of a limited range of comments relating to that contempt, you will be a public figure, not necessarily --
Byron R. White: Just about the contempt?
John J. Buckley, Jr.: That's right.
Byron R. White: Well then why in this case are you a public figure for anything else except just commenting about your defying a grand jury subpoena?
John J. Buckley, Jr.: That's what the comment was in effect about, because the failure to comply with the subpoena --
Byron R. White: In the -- about accusing of being a spy?
John J. Buckley, Jr.: It opened the door to speculation, I would submit for a range of issues relating to possible reasons why he did not comply with the subpoena. One possible inference being of course that he was a soviet spy. And this conduct occurred in the context of a major controversy over Soviet espionage. Let me say there's no contention here that Wolston was the prime actor in the entire controversy, but he was at least a supporting actor who was starring in his own subplot with a script he largely authored by his own contempt. And therefore became part of the larger drama.
Warren E. Burger: Now what if having been convicted either by government employee going home from work and resist arrest or Mr. Justice White's hypothetical case and first there's a conviction for a contempt or whatever. You say that automatically makes him a public figure?
John J. Buckley, Jr.: If one engages in criminal conduct, I think it does.
Warren E. Burger: Well now on appeal it's reversed, that is he is a nonpublic figure?
John J. Buckley, Jr.: Not necessarily. Certainly in the --
Warren E. Burger: You mean you're going to penalize him for taking an appeal?
John J. Buckley, Jr.: Well one can engage in conduct that is not criminal and yet be a public figure.
Warren E. Burger: Well but we were dealing with something near to your case what criminal conduct you've described.
John J. Buckley, Jr.: I think that --
Warren E. Burger: He certainly can't be in and out as a public figure.
John J. Buckley, Jr.: Always the question is what was the underlying voluntary conduct? It may have been criminal or noncriminal. If it was criminal I would submit that's a strong indication that that conduct, criminal conduct by its nature attracts public attention and comment.
John Paul Stevens: Mr. Buckley, it seems to me that you spent a good deal of your time defending an issue that's not before us, as I understand it. You don't have to defend the position that any one convicted of any crime at any time becomes a public figure.
John J. Buckley, Jr.: No, Your Honor, I don't.
John Paul Stevens: As I understand your brief and as I understood the opinion of the District Court and the Court of Appeals, this man became a public figure in the opinion of those courts only because he was convicted of contempt in the context of the great furor in this country that existed at that time with respect to communist espionage. Now why don't you confine your position to that?
John J. Buckley, Jr.: Your Honor, I certainly am just trying to be helpful to the Court -- members of the Court who wanted to broaden the question under examination. But that is the whole point of this is that this was not routine crime as all the hypotheticals put involve but rather real major controversy involving a 10-year FBI investigation, a grand jury that handed down a series of indictments against others for espionage.
Lewis F. Powell, Jr.: Mr. Buckley let me just ask one question. I realized your opponent is pretty much abandoned the argument, but on the question of the time gap between when the conduct occurred and when the book was written.Do you think it's appropriate to have the same standard of care for the writer who has to meet a deadline as it is for a historian?
John J. Buckley, Jr.: I think so especially with respect to --
Lewis F. Powell, Jr.: In other words, the historian should equally have the same latitude to be really be on direct notice of falsehood before he has to be careful about what he says about someone.
John J. Buckley, Jr.: I think for two reasons. First of all the public's need to know is the same.
Lewis F. Powell, Jr.: Well would that serve the public's need to know or would it serve the public's need to know to say “Well if you're going to write a history, be careful.”
John J. Buckley, Jr.: Well in -- nothing in a few are pure history. KGB is not pure history. Some of it involves the more recent activities of the KGB. Should one delay publication of this hot news in a sense about the more recent activities because one has to spend more time investigating under different standard of liability, the history of the controversy? I don't think it makes sense because --
Lewis F. Powell, Jr.: But he had four years to write this book, didn't he?
John J. Buckley, Jr.: He did, indeed explained about four years in writing the book and his reliance was placed upon an official report of the FBI, the accuracy of which had never been called into question until --
Lewis F. Powell, Jr.: Well, maybe he wasn't -- I'm not suggesting that. Maybe they were totally -- they've got a good defense there. It's just not the question of the standard of the author. Does it really seem reasonable to say that a historian should have the same latitude when he has plenty of time to research and presumably writes something that has a stamp of careful research on as opposed to the reporter who has to meet a deadline to get in before 4:30 or whatever the time the story has to be filed.
John J. Buckley, Jr.: Well in the present context, there were more recent activities in the KGB itself.
Lewis F. Powell, Jr.: Yes, but this wasn't a recent activity.
John J. Buckley, Jr.: No this wasn't, but in order to illuminate, give meaning, give context to the discussion of the more recent activities it's necessary to get history. If one applies in the theory that you should take longer to write the background that will delay the publication of that -- those matters that are more current. And therefore, I think the policy defeats itself because the two are really related.
Warren E. Burger: Well, what might be under Gertz, what might be negligence for a news magazine a weekly news magazine might not be negligence, culpable negligence for a reporter of a daily newspaper --
John J. Buckley, Jr.: That's certainly true.
Warren E. Burger: -- none of you writing a history it strings out.
John J. Buckley, Jr.: Like the where the standard --
Harry A. Blackmun: Well, Mr. Buckley this is why I asked your opponent why he abandoned the passage of time argument.
John J. Buckley, Jr.: Well, that I think is not relevant as to the standard of liability. But his actual --
Harry A. Blackmun: But that has to be your position.
John J. Buckley, Jr.: I don't -- that's right. I don't think that the definition of actual malice changes because the publisher is a news reporter versus an historian. The standard is the same. Was the comment published with a high degree of awareness of probably falsity as this Court stated in --
Harry A. Blackmun: So long there's recklessness in it there is a difference.
John J. Buckley, Jr.: I don't really think so because the policy underlying the actual malice standard is getting at the calculated falsehood. I don't say --
William H. Rehnquist: Mr. Buckley, am I right in understanding Mr. Dickstein and is he right in saying, if I am right in understanding him to say so, that the District Court simply accepted at its face value the affidavit of an interested defendant that he intended no malice and granted judgment on that basis?
John J. Buckley, Jr.: No that's not so. First of all in the -- with respect to the statement that Wolston had been identified as a Soviet agent as a result of an official investigation. It was undisputed that Barron relied upon an official report of the FBI which so identified him, so there was no evidence here of knowledge of falsity or reckless disregard. Now, in addition to that Barron submitted an affidavit and was deposed and in that context swore that he believed the truth of his publication.
William H. Rehnquist: But there's no reason why the District Court has to -- should believe that on a motion for summary judgment.
John J. Buckley, Jr.: On a motion for summary judgments if the court can grant summary judgment. If there are no contrary inferences that can fairly be drawn from the evidence. If there's no --
William H. Rehnquist: But an interested party's testimony can always be disbelieved by a jury.
John J. Buckley, Jr.: If it stood alone, but it didn't stand alone here. One had the FBI report which itself in fact identified Wolston as a Soviet agent. I think that in the reply brief, petitioner candidly admits that his position is that a plaintiff in a libel case has no obligation to introduce evidence contradicting the sworn assertions of the publisher as to his belief in the truth of his publication.
William H. Rehnquist: Why I would have thought --
John J. Buckley, Jr.: But much more was involved --
William H. Rehnquist: Was the burden of proof -- the burden is on the party moving for summary judgment and the credibility of a -- interested witnesses for the jury, do you dispute either of those propositions?
John J. Buckley, Jr.: No.
William H. Rehnquist: Well then why should your party grant on summary judgment here?
John J. Buckley, Jr.: Because there were no contrary inferences which could be fairly drawn from the evidence involved in this case. How can reliance upon an official report of the FBI unequivocally, categorically identifying someone as a Soviet agent constitute proof in any sense of actual malice. Were it so, then historians and newscasters would report the official findings of such agencies at their peril because under petitioner's view, there must always be a costly trial irrespective of the evidence. And that he's under no obligation of his view to present evidence to the contrary putting an issue as he must, a genuine issue if material fact.
Warren E. Burger: I think we've detained you unduly long, Mr. Buckley.
John J. Buckley, Jr.: Thank you, Your Honor.
Warren E. Burger: Mr. Dickstein, do you have something further?
Sidney Dickstein: Yes I do, Your Honor. We would probably have a quite a different case here if Mr. Wolston had challenged the FBI's right to investigate into espionage or the right of the United States Government to issue a subpoena compelling his attendance before a grand jury conducting such an investigation. But one thing is quite clear even on this abbreviated record and that is that the only justification, the only excuse that Mr. Wolston ever gave for not complying was his physical and mental condition at the time the subpoena was issued. He did not take a position in this public controversy with a view toward influencing it. Indeed if one looks at the contemporaneous newspaper articles, they replete with references to; he refused to comment, he disappeared, he could not be reached. And when you read the article concerning the event of the trial, it certainly appears as if the reason why he terminated the trial and plead guilty was because he wanted to resist any in further intrusion into his privacy and the privacy of his family.
Warren E. Burger: Suppose Mr. Dickstein --
Sidney Dickstein: We are not --
Warren E. Burger: -- suppose that a witness subpoenaed in these same circumstances instead of just refusing to appear and taking all the consequences of a contempt citation and so forth, decided to go to one of the Caribbean islands or South American countries and then there would be a good many newspaper accounts, assumed on newspaper accounts that he had fled the country. And then perhaps when extradition proceedings were started to get him back, he moved to some South American country that has no extradition treaty with the United States, and you have another series of stories. You think that might at some stage bring him into the public figure category?
Sidney Dickstein: Not as I understand the teaching of this Court's opinions in Gertz and Firestone, Your Honor. We're not suggesting that this Court should assume that Wolston's actions were non-volitional for purposes of determining whether or not he was a public figure. In fact, we're prepared to have the Court assume that they were volitional that he did not obey the subpoena and that he was properly plead. But that is not the kind of activity that we understand is spoken of in Gertz and in Firestone as to making him a public figure. Mr. Buckley has asserted that this is a very evanescent proposition. How can the press expect to know what Wolston's state of mind was when he failed to obey the subpoena? We've never suggested that for one moment, but we have said is that there is not a scintilla, there was not a scintilla of indication that Wolston was refusing to obey a subpoena in order to have impact upon the processes, the controversy, the dispute in order to persuade the public of a position much like the analogy that I employed in my opening argument with respect with the Hollywood Ten. No guesswork was required here. But what if the standard that Mr. Buckley does advocate, he suggests that perhaps when someone has been convicted of a crime, some special things occur. At that point at least he becomes a public figure. Well, if one thinks about guesswork in terms of assessing concrete facts then self-evident, what about the crystal balling that would be involved in application of such a standard? The press would rightfully complain. How can we possibly know how much breathing space we have? How much room we have for error in commenting upon this man's conduct in the trial in his background if we have to wait until conviction and final judgment before we know whether or not and what we can say? Indeed, I dare suggest that given the criminal processes which fortunately have speeded somewhat in this country. In most instances, the statute of limitations are in libel in most jurisdictions would've run long before the press could fathom the extent of the room which has been allowed by such a standard. To be sure, Mr. Wolston has been stripped of his privacy. But that does not mean that he is thereby to be made a subject of additional sanction at the behest of the Reader's Digest. Judge Cashin, 20 years ago decided what was an inappropriate sanction. With regard to the question of actual malice, and your questions Mr. Justice Rehnquist, if the actual malice standard was applicable here and we say it is not but if it were held to be. The question would then be whether Barron had serious doubts about the truth of the statement that Wolston was a Soviet agent but went ahead and published it anyway. Now less we be misunderstood, we are not suggesting and I answered before Mr. Justice Blackmun, that there is a varying standard depending upon the length of time that has occurred since the events which ostensibly are purportedly make up one a public figure. We say the standard is the same but the manner in which that standard is to be applied is not rigid. It must take in a consideration. And particularly if one is going to ascribe to the balance, the accommodation of interest referred to in Gertz and predecessor opinions, one must take into consideration the circumstances of publication. And hence whether you're talking about actual malice or negligence or the minimal standard of fault permissible by Gertz, we think it completely appropriate that the trier of fact, the jury in this instance, have the opportunity to determine whether or not whatever standard of care is to be employed was employed under these circumstances. When Barron testified, when Barron submitted an affidavit that he had no doubt whatever about any statement in his book, I submit that such extravagant overstatement should've been self-impeaching, instead it was fully credited. When he said “Yes, I knew about Morros' view of Soble's credibility that he was a confirmed liar, but I didn't rely upon that. I relied upon this FBI report and did the two put together create any doubt in my mind?”
John Paul Stevens: But Mr. Dickstein, he's a confirmed liar as a -- as in all agents are confirmed liars are they, all spies? I don't understand how -- I don't really understand your theory about why that should've put him on notice that a statement after he'd acknowledged his status as a spy would necessarily be suspect.
Sidney Dickstein: Your Honor, there is so much in that book which is just completely inconsistent that is in which Slava as described is completely inconsistent with Wolston, the man as he live. There is more than that. We are talking about an accusation made, a statement, a report if you would, filed by the FBI in 1960 at the time when it was known that accusations of this kind were rampant and often overstated. We have a period of time which ran since. We also have the indisputable fact known to Barron --
John Paul Stevens: But none of those things would put the author unnoticed that maybe this statement was false?
Sidney Dickstein: There are other circumstances, Your Honor. There is an -- I'm not necessarily saying I noticed. I think the man was unnoticed. And the question was; what was his own self-assessment as to the extent to which he entertained doubts? The mere fact as he knew it that Wolston was in the grip of federal prosecutorial power and yet was never indicted for espionage should've said something to him. All of these things, but what -- but Barron's testimony at deposition was not only extravagant and self-serving, some of it sounded like a lawyer's post litem inventions. That in and of itself should've enabled us to challenge his credibility, this overbroad statement with respect to every proposition in his book being true, that should've been a basis for assessing his credibility, the fact that he saw no need to research despite the fact that he had these facilities.
John Paul Stevens: But even if you would considered he was totally impeached and he just remove all his testimony from the record, you still have some affirmative burden of showing the knowledge of falsity. I'm trying to figure how you've discharged your affirmative burden. Maybe you can eliminate his affidavit, let's strike it from the record. What have you got left?
Sidney Dickstein: Given the facts that we have, if a jury believed that Barron was lying, we think that that alone would've been sufficient.
John Paul Stevens: But maybe they won't put him on the witness stand.
Sidney Dickstein: Oh, but I would, Your Honor.
John Paul Stevens: Oh I see.
Byron R. White: Oh what they might believe he was lying that doesn't necessarily follow that anything was untrue does it or is it?
Sidney Dickstein: If there is -- if there are facts and circumstances because there are here --
Byron R. White: Just because the jury can disbelieve and disregard his affidavit doesn't mean they have to conclude or that he absolutely knew or suspected that something was false?
Sidney Dickstein: Standing by itself, if that were the -- if those were the facts here, that might be the case. But it does not stand by itself.
Byron R. White: Well say the man says you --
Sidney Dickstein: Because there are.
Byron R. White: Say the man says the mental element could be satisfied if there are obvious reasons to doubt the veracity of the informant or the accuracy of his report. Now, what -- how did you, Mr. Justice Stevens asked you how did you satisfy that burden of proof. What obvious reasons were there for the defendant to doubt the accuracy of his information objectively?
Sidney Dickstein: Objectively. There was the fact that Wolston was never indicted for espionage. There was the fact that Soble who -- while the witness denies that that was the only basis for the FBI report was characterized as a liar by one who knew him best. There were facts in the FBI report and in the Morros book which apart -- which demonstrably had no bearing and no connection with Wolston. They could not be one and the same person. There was the fact that in the Morros book, Morros clearly suggest that in his view, Soble was putting him on in order to get some money out of him, in order to cool him -- what he refers to with respect to his -- Soble's always declining, always finding excuses so that Morros could not meet Wolston the Slava.
Byron R. White: So you say at least there was jury question about that?
Sidney Dickstein: Exactly. And this case was disposed off on summary judgment.
Warren E. Burger: Thank you gentlemen. The case is submitted.