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- 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, 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)] 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 CRS serves only the research and support 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 en- 2 The Joint Leadership of the House was comprised of Reps. Thomas P. O'Neill, Jr., Speaker, James Wright, Majority Leader, Robert Michel, Republican Leader, Thomas Foley, Majority Whip, and Trent Lott, Republican Whip. branch officers, in that case a civilian employee at a Naval Further, said the amici, the communication was privileged because it related to a matter over which the relevant subcommittee had jurisdiction and on which a proceeding was initiated: As discussed earlier, Congress has a "standing order," so to speak, with CRS for all data bearing on legislation and is statutorily mandated to make such data available to committees. 2 U.S.C. § 166(d)(4). Under the rules of the House, the standing committees of the House are to maintain "continuous" oversight of the laws, agencies and programs within their jurisdiction, to determine whether those laws and programs are being carried out as intended by Congress, to undertake "futures research and forecasting on matters within the jurisdiction of that Committee" and to establish special oversight subcommittees to meet their responsibilities in these areas. H.R. Rule X, cl. 2 (a) and (b), Rules of the House, supra §§ 692(a), 692(b). Together with the statutory "standing order" for data these rules would appear to constitute sufficient basis for finding that even without the subsequent interest expressed by the staff of the House subcommittee, the communication to Lindahl is privileged. The oversight rules amount to nothing less than a legislatively mandated "preliminary inquiry" to a proceeding on all subjects within the committees jurisdiction and communications to CRS related to these subjects should be protected. [Id. at 11] Finally, the amici rejected the plaintiffs' argument that the common law privilege was not applicable because the memorandum transmitted to CRS was not relevant to the issues which were ultimately investigated by the subcommittee. The amici asserted that legislative relevancy was "defined by the limits of the committees' jurisdiction and is broader than the strict legal or evidentiary use of the term." [Id. at 12] Under this broad test, the amici concluded, the memorandum was relevant to the areas in which the subcommittee was involved and on which its staff was conducting inquiries. Ön August 3, 1982, the defendants filed a supplement to their motion for summary judgment, bringing an additional case to the court's attention. On August 18, 1982, the plaintiffs filed a response to the defendants' supplemental memorandum. On December 16, 1982, the defendants filed a second supplement to their motion for summary judgment, bringing to the court's attention a recently published CRS report by Mr. Lindahl entitled "The Webster-Heise Valve: A Significant Improvement in the Internal Combustion Engine and Its Fuels?" According to the defend ants, the report (which made no mention of Sun, Mr. Anderson or the purportedly libelous memorandum) discussed technical criticisms of the octane reducing device. In the defendants' view, the publication of this official CRS report demonstrated that the communication to CRS employee Lindhal of the Sun memorandum "has thus proved useful to Congress and at the same time has had no adverse effect on Webster or the Webster-Heise device." [Second Supplement to Defendants' Motion for Summary Judgment, December 16, 1982, at 2] Further, said the defendants, publication of the report effectively answered the plaintiffs' contention that Mr. Lindahl's activity in investigating the octane reducing device was not part of an "official" Congressional investigation. Finally, the defendants argued, publication of the report demonstrated that "the absolute privilege accorded to communications to Congress is necessary so that Congress can function in exactly the way it did here. The communication of the memorandum to Mr. Lindahl aided the Congressional investigation into the merits of the Webster-Heise valve and, because it was governed by Congressional confidentiality rules and was not republished in the official report, it has resulted in no injury either to Mr. Webster or the Webster-Heise Corporation." [Id. at 2-3] On January 3, 1983, the plaintiffs filed a response to the defendants' second supplemental memorandum. The plaintiffs noted that the recently published Lindahl report had been initiated by a March 2, 1982 letter to the Director of CRS from U.S. Senator Robert T. Stafford, Chairman of the Senate Committee on Environment and Public Works. The plaintiffs continued: The mere fact that the Congressional Research Service was asked to prepare a report on the merits of the Webster-Heise valve in March of 1982 and subsequently did so does not in any way establish that Anderson's sending of a letter in December of 1980 was preliminary to a legislative proceeding. In fact, there is no evidence that, at the time Anderson sent his letter to Lindahl, that communication had any relation to a proceeding that was "actually contemplated in good faith and under serious consideration by the witness or a possible party to the proceeding." See Restatement (Second) of Torts, §588(c); Opposition of Plaintiffs to Defendants' Motion for Summary Judgment, ¶P. 5-6. [Plaintiffs' Response to Second Supplement to Defendants' Motion For Summary Judgment, January 3, 1983, at 2] The plaintiffs insisted, as they had previously, that the common law legislative privilege required a connection to such a contemplated proceeding. They reiterated that neither the case law nor public policy supported a broader rule which would extend the privilege to any communication which "ultimately proves useful to Congress at some indeterminate point in time." [Id.] Status-The case in pending in the U.S. District Court for the District of Columbia. As of March 1, 1983, the court had not ruled on the defendants' motion for summary judgment. XIV. Prosecution for Disrupting Congressional Proceedings United States v. Roth [See page 449.] |