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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

mation gathering process. (Id. at 14-15] 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 1 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 per. sonnel 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 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 ques. tionable, 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 pro vider 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 be-
tween contacts initiated by Congress and contacts initiated by a source may be diffi-
cult 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 memo
randum.
[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, čl. 1)

The defendants concluded their memorandum by arguing that the Webster-Heise complaint should be dismissed because it was legally deficient. According to the defendants, it was "the universal rule that a corporation must plead special damages in a libel or commercial disparagement case and must specify how those damages were caused by the alleged wrong.” (Id. at 32] In this case, they contended, the plaintiff corporation had failed to state with specificity how the publication of the memorandum to Congress injured it and to apprise the defendants of its special damages.

On June 3, 1982, the plaintiffs filed an opposition to the defendants' motion for summary judgment which argued that: (1) the common law privilege which formed the basis of the defendants' memorandum was in fact a narrow one, applicable only in special circumstances not present in this case; and (2) pleading special damages was not necessary insofar as the corporate plaintiff was concerned given the nature of the libel against Webster-Heise, and, in any event, special damages were sufficiently alleged.

Focusing first on the issue of privilege, the plaintiffs claimed that it applied only to "communications made during judicial and legislative proceedings, such as trials and hearings, and to communications made preliminary to a proceeding.” (Opposition of Plaintiffs To Defendants' Motion For Summary Judgment, June 3, 1982, at 4) But in this case, the plaintiff insisted, there was no proceeding in existence at the time the communication was sent to Mr. Lindahl and the memorandum was not even provided to the House Science and Technology Committee until ten months after Mr. Anderson initially sent it. Further, the plaintiffs contended, the communication of the memorandum to CRS was also not preliminary to a legislative proceeding, since Mr. Anderson's purpose in sending it was solely to demonstrate that Sun had investigated the octane reducing device. "Such a purpose hardly relates to a proceeding that is actually contemplated in good faith and under serious consideration by Anderson,” the plaintiffs maintained. (Id. at 6] In any event, said the plaintiffs, the memorandum did not address the issues which were ultimately investigated by the committee.

In the plaintiffs' view, a narrowly-construed privilege was sufficient to guarantee the free-flow of information to Congress, while at the same time preventing libelous communications:

The problem presented by the defendants' proposed privilege is that there would be absolutely no control over potentially abusive communications. The defendants propose that a communication be privileged merely because it is sent to Congress. This not only would fly in the face of a well-advised tradition of judicial restraint in this area, but there is no rationale offered why the present privilege is inadequate to permit the free flow of information to Congress. It is respectfully submitted that the present privilege as interpreted by the courts is more than adequate to ensure that Congress receives all information necessary for it to carry out its constitutional function. It is also respectfully submitted that the defendants have failed to established that the communication at issue in this case falls

within the judicially fashioned requirements for the appli

cation of the privilege. (Id. at 10) Next addressing the issue of the legal sufficiency of the WebsterHeise complaint, the plaintiffs argued that special damages need not be pleaded because the communication to CRS constituted libel per se. Alternatively, they asserted that special damages had in fact been pleaded.

On June 10, 1982, the defendants filed a reply memorandum in support of their motion for summary judgment. In essence, the memorandum reiterated the arguments made in the defendants' original brief, and once again contended that the communication to CRS was "well within” the common law privilege as delineated by prior case law. The defendants insisted that, in the case of communications made to a legislative or judicial body, the privilege encompassed "informal communications—such as the one involved here-made without court supervision to persons gathering facts which may or may not eventually be presented to the body.(Reply Memorandum of Defendants June 10, 1982, at 4 (emphasis added)] Further, the defendants asserted, Mr. Lindahl's investigation was an "integral part" of the legislative process, and the communication to CRS was “plainly" preliminary to a legislative proceeding:

[T]he Sun employee who sent Lindahl the memorandum,
had every reason to believe Lindahl was conducting his in-
quiry preliminary to a "proceeding”; the statute under
which Lindahl was acting permitted him to gather the in-
formation only at the request of a committee or "in antici-
pation of a request" by a committee; and here there even-
tually was a request and a proceeding conducted by the

subcommittee. (Id. at 6 (footnotes omitted)] The defendants concluded:

Under the plaintiffs' reading of the scope of the privilege, the only communication to Congress which would be privileged in a defamation action would be one made under oath, in public, before a duly constituted legislative committee; or where a hearing is already scheduled. The privilege certainly applies to such situations. However, in the real world Congress obtains most of its information from informal sources and uses that information to decide whether or not to have a hearing or other proceeding. To hold that a person may be sued for communications to a Congressional investigator engaged in the legislative process would be to interfere with that process and impede the Congress' acquisition of information. On the other hand, where, as here, the information must be handled confidentially and can never be published outside Congress unless there is a hearing, little or no injury to private reputations will result from a rule applying the privilege. (Id. at 7 (footnote omitted)]

1

On June 14, 1982, the Joint Leadership of the House of Representatives 2 filed a motion for leave to file a brief amici curiae in the case. Two days later the motion was granted.

On June 17, 1982, the Joint Leadership filed its brief, urging the court to find the communication to CRS employee Lindahl absolutely privileged. The brief noted at the outset that "Amici are aware of no case where a court has permitted a defamation action to proceed to trial on the basis of the submission of information to the Congress or its committees.” [Memorandum of the House Joint Leadership as Amici Curiae, June 17, 1982, at 1] Initially, the brief also pointed out that Congress utilizes many informal means to gather information, and, "if communicants using these informal means are not protected by the absolute common law privilege Congress will be denied a vast potential source of information.” (Id. at 2]

Before proceeding to a discussion of the merits, the amici emphasized the special relationship between CRS and Congress. The amici stressed that by law CŘS serves only the research and sup port needs of Congress, is bound by numerous confidentiality provisions, and has a statutory mandate to "maintain continuous liaison with all committees” and to “upon its own initiative in anticipation of requests . . . collect, classify and analyze in the form of studies, reports, . : . and otherwise, data having a bearing on legislation and to make such data available and serviceable to committees." (2 U.S.C. § 166(d)(4)) Further, the amici stated, "CRS is, in effect, a staff-sharing arrangement for the Congress, and the CRS employees performing statutorily mandated tasks for Members and committees are the same in all material respects as employees working directly for Members and committees.” (Id. at 3]

Turning to the merits, the amici argued that the information gathering process was an integral part of the legislative function, and the use of informal methods of gathering information in particular was essential to that function. The amici pointed out that the "Rules of the Committees of the House specifically recognize and authorize preliminary inquiries by staff in connection with the conduct of committee business(Id. at 6), and added that the courts “have fully and explicitly recognized the validity of this informal information gathering and its protection under the Speech or Debate Clause as an integral part of legislating.” (Id. at 7]

Even leaving aside the question of whether Mr. Anderson's communication was privileged under the Speech or Debate Clause, the amici argued that it was "clearly” privileged under the common law:

[Since) it is the purpose of the common law privilege to encourage communications to Congress on matters relevant to its legislative functions, it will effectively chill or deter persons outside the Congress with pertinent information from providing knowledge they have to Congress if they are unsure of their liability in doing so. In Howard v. Lyons, 360 U.S. 593 (1959), the Court held that executive

2 The Joint Leadership of the House was comprised of Reps. Thomas P. O'Neill, Jr., Speaker, James Wright,

Majority Leadehert Michel, Republican Leader, Thomas Foley, Majority Whip, and Trent Lott, Repub!

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