In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), the Supreme Court ruled that federal appeals courts hearing defamation or libel cases must conduct โindependent appellate reviewโ to determine whether the evidence proves actual malice under New York Times Co. v. Sullivan (1964), regardless of the deference appellate judges usually accord trial courts in evaluating testimony and witness credibility.
Bose sued after critical review of its speakers
The May 1970 issue of Consumer Reports included a review critical of a new Bose speaker system. One statement noted that the โindividual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room.โ After the magazine refused to retract its article, Bose Corp. successfully sued the publisher, Consumers Union of the United States, Inc., in federal court for product disparagement.
Trial court said reviewer had written article with actual malice
The engineer who supervised the test for Consumer Reports testified that although he wrote in his report that the sound moved โaround the room,โ which the magazineโs editors published as โabout the room,โ he heard only lateral sound movement along the wall and had intended that meaning in his report. The trial judge found his testimony about his intent to be โimpossible to believeโ and concluded that the false statement had been made with actual maliceโpublished while knowing the statement was false or entertaining serious doubts about its truthfulness.
Supreme Court said there was insufficient evidence for actual malice
A federal appeals court overturned the ruling and it was upheld by the Supreme Court in a 5-4 decision authored by Justice John Paul Stevens, with Chief Justice Warren E. Burger concurring. Justices Byron R. White and William H. Rehnquist penned dissents in favor of deferring to the trial courtโs factual determinations.
The majority of the Court found insufficient evidence that the engineer knew that he had misstated a fact about the Bose system at the time the article was published. The Court in a lengthy analysis rejected the argument that appeals judges should overturn trial judgesโ determinations on actual malice only when such findings are โclearly erroneous.โ
Court said that appeals courts must review trial court evidence in defamation cases
The Court concluded that the independent appellate review discussed in Sullivan was a rule of federal constitutional law that โreflects a deeply held conviction that judgesโand particularly members of this Courtโmust exercise such review in order to preserve the precious liberties established and ordained by the Constitution.โ
As such, even on factual issues where appeals courts typically defer to trial judges, such as witness credibility, in defamation cases, appeals courts must review the evidence on their own, or de novo.
This article was originally published in 2009. Chad Bowman is a media and First Amendment lawyer in Washington, D.C. and represents news organizations, nonprofits, and other content creators. Chad is a partner at the national law firm Ballard Spahr LLP. Prior to attending law school, Chad worked as a journalist in Upstate New York and in Washington, D.C.