Liberty Lobby, Inc. v. Drew Pearson

390 F.2d 489

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1968
• Docket: 20690
• Status: Published

Opinions

BURGER, Circuit Judge.

This is an appeal from the District Court’s denial of a preliminary injunction sought by Appellants to prohibit “dissemination or publication [by Appel-lee] of information, letters, or documents illegally and unlawfully removed and/or copied from the files of the plaintiffs.” The preliminary injunction was sought pending disposition of Appellant’s suit for a permanent injunction and damages.

Appellant Liberty Lobby is a political-action or lobbying organization; Appellant Carto is an organizer and treasurer. Appellees Pearson and Anderson publish a newspaper column entitled “Washington Merry-Go-Round,” which is syndicated throughout the United States. The complaint charges that Appellee Horne, while an employee of Liberty Lobby, removed and/or copied certain private letters and documents which were in a box in a Liberty Lobby file closet and that Pearson and Anderson have published and propose to publish excerpts from these letters. Appellants allege they do not know precisely what papers Appel-lees have.

The District Court denied Appellant’s motion for injunctive relief pending trial. In exercising the discretion to grant or withhold a preliminary injunction,¹ 2the District Judge must consider the petitioner’s prospect of success on the merits and weigh the interests of the parties and the public.² Our review of the District Judge’s decision is limited, Maas, supra note 1; see also Perry v. Perry, 88 U.S.App.D.C. 837, 190 F.2d 601 (1951).

The District Judge denied the injunction. Appellants have constructed their appeal on a challenge to the District Court’s view of Appellants’ rights in property and privacy and argue that these rights can support an injunction even as against the press, where private papers are illegally acquired, without offending the First Amendment.

The First Amendment, of course, protects the free expression and exchange of ideas regardless of their merit because this is considered imperative to open and “robust debate” on matters of public interest.³ Any claim which seeks prior restraint on publication bears a heavy burden. The validity of any such claim depends on a balance of the interests sought to be protected by the limitation against the injury to free utterance.⁴

While the right of expression and publication is not absolute, the balance is always weighted in favor of free expression⁵ and tolerance for error is afforded; some utterances are protected not because of their merit or truth but because a free, open society elects to take calculated risks to keep expression uninhibited.⁶

The express purposes and the admitted activities of Liberty Lobby— political lobbying and dissemination of information on highly controversial subjects⁷ — render its affairs a matter of public interest. While the term “lobbyist” has become encrusted with invidious connotations, every person or group engaged, as this one allegedly has been, in trying to persuade Congressional action is exercising the First Amendment right of petition. Like other Constitutional rights, the right to petition is subject to abuse and misuse and a vigilant press can expose abuses to public view.

Appellants contend in this court that their case presents considerations not controlled by the First Amendment holdings. They argue that this case does not involve free expression of ideas but rather use of private papers illegally taken in violation of rights of privacy and property.

The question here, however, is whether Appellants have made out such a case by their pleadings and evidence. Their complaint alleges that an employee, one Jeremy Horn, in breach of duty and of Appellants’ rights, reproduced private documents and delivered copies to others including Appellees who will publish them. Horne admits making copies of various letters and documents which were in his custody while an employee of Appellant Liberty Lobby including publications sponsored by Liberty Lobby and income tax returns of Liberty Lobby. Horne testified in pre-trial depositions that he gave copies of these papers and income tax returns to the F.B.I. and later to Appellees. His testimony was that he did not know whose property these papers were; he refused to answer various questions as to the precise nature of the documents he copied or who owned these papers. Appellants did not pursue the interrogation or seek judicial power to compel answers.

Upon a proper showing the wide sweep of the First Amendment might conceivably yield to an invasion of privacy and deprivation of rights of property in private manuscripts. But that is not this case; here there is no clear showing as to ownership of the alleged private papers or of an unlawful taking and no showing that Appellees had any part in the removal of these papers or copies from the offices of Appellants or any act other than receiving them from a person with a colorable claim to possession.

Affirmed.

1 . Maas v. United States, 125 U.S.App.D.C. 251, 254-255, 371 F.2d 348, 351-352 (1966).

2 . Virginia Petroleum Jobbers Ass’n. v. F. P. C., 104 U.S.App.D.C. 106, 259 F.2d 921 (1958).

3 . New York Times v. Sullivan, 376 U.S. 254, 269-270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

4 . E. g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Time, Inc. v. Hill, 385 U.S. 374, 389-390, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); New York Times Co. v. Sullivan, 376 U.S. 254, 268, 84 S.Ct. 710,11 L.Ed.2d 686 (1964); NAACP v. Button, 371 U.S. 415, 443, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); see Justice Black’s concurrence in Time, Inc. v. Hill, 385 U.S. at 398, 87 S.Ct. 534.

5 . Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Mur-dock v. Commonwealth of Pennsylvania, 319 U.S. 105, 115, 63 S.Ct. 870, 87 L.Ed. 1292 (1943).

6 . Time, Inc. v. Hill, 385 U.S. 374, 388-389, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).

7 . The record reveals extensive money raising campaigns to support various programs of “political education,” some of which contain overtones of anti-Semitism ad racism which, however reprehensible, are within the areas covered by the First Amendment.