viduals would be subjecting themselves, without any legal In accordance with New York Times Co. v. Sullivan, 376, Finally, with respect to the Petition Clause, the plaintiff contended that it was "not implicated by defendant's submission of letters to various Members of Congress and others containing malicious and deliberately false statements" [Id. at 21-22] because such correspondence did not constitute legitimate petitioning activity. The plaintiff explained: [The defendant's] actions were not directed towards the passage or enforcement of laws or efforts to effect and mobilize public opinion on that subject. Nor was he criticizing governmental employees or operations, or seeking to influence government to change its policies. Rather, defendant's letters were published to various public officials, many of whom were entirely unconnected with the formal selection process for appointment to the position of United States Attorney pursuant to Article 2, § 2, cl. 2 of the Constitution and 28 U.S.C. § 541(a), for the purpose of harming plaintiff in his candidacy for appointment, in his private profession as an attorney at law, and in his personal life (Complaint at paragraph nos. 5, 6 and 9). Such conduct does not constitute an exercise of the First Amendment right "to petition the Government for a redress of grievances" as that constitutional provision has been interpreted by the courts of this nation, and defendant's argument in this regard should therefore be rejected. [Id. at 26 (footnote omitted)] Even if the defendant's letters were deemed to constitute a legitimate exercise of the right to petition, the plaintiff again argued that any privilege which attached would be qualified and "would not immunize him from liability at this posture of the proceedings, given [the] allegations that the letters contain unfounded charges and were published with actual malice." [Id. at 30] On October 28, 1982, the defendant filed a reply to the plaintiff's brief in opposition to his motion for a judgment on the pleadings. Initially the reply took issue with the plaintiff's contention that the Petition Clause was not implicated by the facts of the case because the defendant's actions did not constitute such "legitimate" petitioning activity as communicating about the passage or enforcement of laws, criticizing government employees or operations, or trying to influence government policies. Terming such a contention "plainly untenable," the defendant asserted that the "Petition Clause applies to all communications between a citizen and his government regarding matters of legitimate public concern." [Reply to Plaintiff's Brief in Opposition to Defendant's Motion for Judgment on the Pleadings, October 28, 1982, at 4 (emphasis added)] In the defendant's view, there was simply no difference between efforts to influence government officials regarding appointments and efforts to influence officials regarding other matters. "A rule providing that the Petition Clause will or will not apply depending on the precise subject matter of the communication would be judicially unworkable and burdensome," the defendant insisted. [Id.] Furthermore, the defendant argued, the mental state of the petitioner was irrelevant to the existence of the petition privilege. Citing in particular Eastern Railroad Presidents Conference v. Noerr, 365 U.S. 127 (1961), the defendant maintained that even communications made with ill will, malice, or knowledge of their falsity would be protected by the Petition Clause. Finally, the defendant argued that the privilege afforded by the Clause was absolute, not qualified. The only exception to the privilege, he asserted, would arise in a case where the relevant communication was not truly a petition but a "sham" employed to bar others from exercising their rights to petition. However, since the complaint in this case did not allege that the plaintiff was prevented from communicating with government officials regarding his candidacy for the U.S. Attorney position, the defendant contended that the sham exception was not applicable. The reply memorandum also took issue with the plaintiff's characterization of the defendant's arguments concerning the Speech or Debate Clause, the Appointments Clause and the common law legislative privilege: [D]efendant does not argue that the Speech or Debate Clause or the common law doctrine of legislative immunity, standing alone, provide independent grounds for an absolute privilege for the statements at issue. Instead, defendant argues that the policies underlying those provisions are also implicated by the facts of this case. Those policies would be furthered by a decision that the communications at issue are absolutely privileged under the Petition Clause, and would be frustrated by a ruling that the communications are not absolutely privileged. Accordingly, ng in the special circumstances of this case, these policies provide additional reasons for the Court to recognize that the defendant's communications are protected by an absolute On February 4, 1983, the defendant's motion for a judgment on the pleadings was argued before District Judge Frank W. Bullock, Jr. and taken under advisement. Status-The case is pending in the U.S. District Court for the Middle District of North Carolina, Greensboro Division. The complete text of the March 19, 1982 memorandum of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982. Webster v. Sun Company, Inc. Civil Action Nos. 81-2867 and 81-2868 (D.D.C.) On November 25, 1981, Sherwood Webster, President and Chairman of the Board of the Webster-Heise Corporation, filed a libel action in the U.S. District Court for the District of Columbia against the Sun Company, Inc. ("Sun"), a Pennsylvania corporation doing business in Washington, D.C., and Anthony L. Anderson, an Assistant Director of Government Relations for Sun. [Civil Action No. 81-2867] The complaint alleged that Mr. Anderson had written a letter to David Lindahl, an employee of the Congressional Research Service ("CRS") of the Library of Congress, enclosing a memorandum and letter (prepared by other individuals at Sun) which made libelous statements about the plaintiff and an octane reducing device he had invented. The complaint further alleged that because of the defendants' action the "great economic value in the marketplace" of the device had been diminished and "potential industry, government, and public acceptance of the invention" had been hindered. The complaint sought $25,000,000 in compensatory damages and $10,000,000 in punitive damages. A similar complaint was also filed on November 25, 1981 by the Webster-Heise Corporation against the same defendants. [Civil Action No. 81-2868] Webster-Heise, purportedly the owner of the patent rights on the octane reducing device, sought $100,000,000 in compensatory damages and $10,000,000 in punitive damages on each of two counts of the complaint. On April 2, 1982, the two cases were ordered consolidated. (Two other cases filed at the same time by Mr. Webster and WebsterHeise against Sun and another Sun employee, Brian C. Davis, who authored one of the allegedly libelous documents and who lived in Pennsylvania, were ordered transferred to the U.S. District Court for the Eastern District of Pennsylvania on February 11, 1982.) On May 3, 1982, the defendants filed a motion for summary judgment, arguing that the two complaints were based solely on the communication to the U.S. Congress of documents relating to an official Congressional inquiry and that such a communication was absolutely privileged as a matter of law. Alternatively, the defendants moved to dismiss the Webster-Heise's complaint because it failed to plead special damages which, as a corporation, it was required to do in a libel action. In an accompanying memorandum, the defendants contended that, if permitted, the two actions would "intrude on the free flow of information to the United States Congress, and would violate well-settled common law and constitutional principles." [Memorandum in Support of Defendants' Motion for Summary Judgment, May 3, 1982, at 1] The memorandum pointed out that CRS employee Lindahl was an energy expert who provided the Sun documents, along with other material on the octane reducing device, to investigators of the Subcommittee on Investigations and Oversight of the House Science and Technology Committee, which was engaged in a study of possible barriers in American society to the acceptance by large corporations of private inventions. The memorandum also pointed out that this action by Lindahl was consistent with the mandate of CRS, an information-gathering arm of Congress, created in 1970 "to collect . . . data having a bearing on legislation, and to make such data available and serviceable to committees" of Congress (2 U.S.C. § 166). According to the memorandum, the documents were not disclosed by Sun to anyone outside the company except Lindahl, and were provided to him only "for use in his official congressional work because Lindahl had told Anderson of his interest in the Webster-Heise device on at least two prior occasions." [Id. at 2] Turning to their specific legal arguments, the defendants asserted that both the common law and constitutional considerations pointed "compellingly" to the conclusion that the communication of the documents by Sun to CRS was absolutely privileged. The defendants summarized their arguments as follows: The common law clearly provides that communications preliminary to legislative and judicial proceedings are absolutely privileged even if such communications are false and malicious. The privilege is designed to remove all barriers to the free flow of information to our elected representatives. It applies to communications which are volunteered as well as compelled and it applies to preliminary communications occurring prior to any formal proceeding as well as to communications made while a proceeding is in progress so long as the communication relates in some way to a valid legislative inquiry. This privilege we submit should apply a fortiori to communications to the United States Congress. In the context of communications to Congress, this absolute privilege has constitutional overtones deriving from the Speech or Debate Clause and the First Amendment right to petition the Government. Several authoritative recent cases have emphasized the importance of Congress' information-gathering functions, and have pointed out that they must be carried out through informal as well as formal means and through aides and staffers as well as Congressmen and Senators. The CRS is an integral part of Congress' infor- The defendants put particular emphasis on those constitutional considerations which in their view in the case of a communication with the U.S. Congress buttressed the common law reasons for absolute privilege. Those considerations, they said, were embodied in the Speech or Debate Clause and the First Amendment right to petition the government. Both the acquisition of information by Congress, protected by the former, and the communication of information to Congress, protected by the latter, were at issue in this case, the defendants asserted: The Speech or Debate Clause privilege, on the one hand, and the right to petition and the absolute immunity for defamatory communications to Congress, on the other, are distinct privileges. The former protects congressional personnel acquiring information for a legislative purpose; and the latter protects citizens who communicate the information when it is related to a valid congressional inquiry. Both privileges, however, serve the same overriding purpose. They remove barriers to the free flow of information to our democratically elected representatives; and leave them free from interference by the courts, through private lawsuits, to receive the information and to act in the public interest. The privileges would appear to be congruent to the extent that at least when a congressional staffer is privileged under the Speech and Debate Clause in connection with acquiring information, the person giving the information is absolutely privileged under the common law in connection with providing it.3 36 36 There are, of course, two related privileges involved. First, the common law privilege of the provider of information from a defamation suit. Second, the Speech or Debate Clause privilege of the Congressional recipient. The defamation privilege is designed to affect the conduct of the provider by encouraging the communication of information. The Speech or Debate Clause privilege is designed to affect the conduct of the Congressional recipient by encouraging him to acquire it. Both privileges further the same purpose-removing possible barriers to the obtaining of information by Congress. In Tavoulareas v. Piro, 527 F. Supp. 676 (D.D.C. 1981), Judge Gasch ruled the Speech or Debate Clause privilege inapplicable to the purely passive receipt by a Congressional staffer of purely volunteered information. Although questionable, the result can be justified because where the Congressional recipient is purely passive there is no conduct by the Congressional recipient to be affected and the Speech or Debate Clause is arguably inapplicable. In any event, Tavoulareas has no application to the common law privilege of the provider of information. He is by no means passive, and withholding the privilege from him will inevitably affect his decision to volunteer the information to Congress. This would erect a barrier to the free flow of information to Congress. Thus, at common law the privilege of the provider of information applies to purely volunteered information. See supra at p. 20. In any event, under Tavoulareas, this case does not involve purely passive receipt by Lindahl. In Tavoulareas, "The Court recognizes that, in practice, the line between contacts initiated by Congress and contacts initiated by a source may be difficult to draw." Id. at 681. "The Court... does not intend a niggardly definition of the term 'acquisition'. . ." (denoting active receipt of information). Id. at 680. Here Lindahl was active and instrumental in Anderson's decision to send him the memorandum. [Id. at 29-30] The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other place." [art. I, § 6, cl. 1] |