Bose Corporation v. Consumers Union of US, Inc.
Decided on Apr. 30, 1984; 466 US 485



A. Issues Discussed: 1st Amendment, defamation, judicial power

B. Legal Question Presented:

Does Rule 52(a) of the Federal Rules of Civil Procedure prescribe the standard to be applied by the Court of Appeals in its review of a District Court's determination that a false statement was made with the kind of “actual malice” described in New York Times Co. v. Sullivan?

Did the Court of Appeals err when it refused to apply the standard of Rule 52(a) to the District Court's “finding” of actual malice?


A. Background:

In the May 1970 issue of its magazine, Consumer Reports, respondent Consumers Union published an article evaluating the quality of numerous brands of loudspeakers, including the Bose 901, a product of the Bose Corporation (petitioner).  After describing the Bose 901 and some of its virtues, and after noting that a listener “could pinpoint the location of various instruments much more easily with a standard speaker than with the Bose system,” respondent's article made the following statements:

“Worse, individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room. For instance, a violin appeared to be 10 feet wide and a piano stretched from wall to wall. With orchestral music, such effects seemed inconsequential. But we think they might become annoying when listening to soloists.” The article concluded: “We think the Bose system is so unusual that a prospective buyer must listen to it and judge it for himself. We would suggest delaying so big an investment until you were sure the system would please you after the novelty value had worn off.”

Petitioner took exception to numerous statements made in the article, and when respondent refused to publish a retraction, petitioner commenced a product disparagement action. The District of Massachusetts Court ruled in favor of the petitioner, finding that the article's statements were factually wrong and made with "actual malice." On appeal the Court of Appeals reversed, as it found the lower court's ruling to be "clearly erroneous." The US Supreme Court granted Petitioner certiorari.

B. Counsel of Record:
Opposing Side
Michael N. Pollet argued the cause for respondent. With him on the brief were Marshall Beil and Carol A. Schrager. Charles Hieken argued the cause for petitioner. With him on the briefs was Blair L. Perry.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by James F. McHugh, Charles S. Sims, and John Reinstein; and for New York Times Co. et al. by Floyd Abrams, Dean Ringel, Devereux Chatillon, Robert Sack, Alice Neff Lucan, Corydon B. Dunham, David Otis Fuller, Jr., W. Terry Maguire, Richard M. Schmidt, Jr., R. Bruce Rich, and Peter C. Gould. No amici curiae briefs were filed on behalf of Respondent.

"The clearly erroneous standard of Rule 52(a) does not prescribe the standard of review to be applied in reviewing a determination of actual malice in a case governed by New York Times Co. v. Sullivan. Appellate judges in such a case must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity...

In cases raising First Amendment issues, an appellate court has an obligation to make an independent examination of the whole record to ensure that the judgment does not constitute a forbidden intrusion on the field of free expression. However, the standard of review must be faithful to both Rule 52(a) and the New York Times [v. Sullivan] rule of independent review, the conflict between the two rules being in some respects more apparent than real. For instance, Rule 52(a) does not forbid an examination of the entire record, and the constitutionally based rule of independent review permits giving 'due regard' to the trial judge's opportunity to judge witnesses' credibility, as provided by Rule 52(a)...

Rule 52(a) applies to findings of fact, but does not inhibit an appellate court's power to correct errors of law, including those that may infect a so-called mixed finding of law and fact. In a consideration of the possible application of Rule 52(a)'s distinction between questions of law and fact to the issue of 'actual malice,' three characteristics of the New York Times [v. Sullivan] rule are relevant: (1) the common law heritage of the rule, (2) the fact that its content is given meaning through case-by-case adjudication, and (3) the fact that the constitutional values protected by it make it imperative that judges make sure that it is correctly applied...

The requirement of independent appellate review enunciated in New York Times [v. Sullivan] reflects a deeply held conviction that judges - particularly Members of this Court - must exercise such review in order to preserve precious constitutional liberties. Under New York Times [v. Sullivan], the question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is ultimately a question of federal constitutional law...

The Court of Appeals correctly concluded that there is a significant difference between proof of actual malice and mere proof of falsity, and that the requisite additional proof was lacking in this case. The testimony of the article's author did not constitute clear and convincing evidence of actual malice. The fact that he attempted to rationalize the mistake as to the article's use of the phrase 'about the room' does not establish that he realized the inaccuracy at the time of publication. The choice of the language used, though reflecting a misconception, did not place the speech beyond the outer limits of the First Amendment's broad protective umbrella. Even accepting all of the District Court's purely factual findings, nevertheless, as a matter of law, the record does not contain clear and convincing evidence that respondent or its employee prepared the article with knowledge that it contained a false statement, or with reckless disregard of the truth... affirmed."

Justice Vote: 6 Pro vs. 3 Con

  • Stevens, J.  Pro  (Wrote majority court)
  • Brennan, W.  Pro  (Joined majority opinion)
  • Marshall, T.  Pro  (Joined majority opinion)
  • Blackmun, H.  Pro  (Joined majority opinion)
  • Powell, L.  Pro  (Wrote concurring opinion)
  •  Burger, E.  Pro  (Joined Powell's concurrence)
  • White, B.  Con  (Wrote dissenting opinion)
  • Rehnquist, W.  Con  (Wrote dissenting opinion)
  • O’Connor, S.  Con  (Joined Rehnquist’s dissent)

The ACLU filed as amicus curiae urging affirmance. The United States Supreme Court affirmed the Court of Appeals for the First Circuit's decision in a 6-3 vote, giving the ACLU an apparent win.