HUTCHINSON v. PROXMIRE

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Argument of Michael E. Cavanaugh

Chief Justice Warren E. Burger: -- Mr. Justice White.

We'll hear arguments first this morning in Hutchinson against Proxmire and others.

Mr. Cavanaugh, I think you may proceed whenever you are ready.

Mr. Cavanaugh: Mr. Chief Justice, and may it please the Court.

I am Michael Cavanaugh of Lansing, Michigan appearing on behalf of the respondent -- excuse me, the petitioner, Dr. Ronald Hutchinson.

This is a civil action by Dr. Hutchinson, a research scientist against the United States Senator William Proxmire and his aide Morton Schwartz, seeking damages for libel, slander, interference with contractual relations and invasion of privacy, and intentional infliction of mental anguish.

The basis of federal jurisdiction is diversity of citizenship.

In March of 1975, Senator Proxmire launched a series of monthly press releases which were designed according to Senator Proxmire to focus national attention upon what he considered as the greatest waste of taxpayer money that could be located that month.

Justice William H. Rehnquist: Mr. Cavanaugh, can I interrupt you for a moment?

Mr. Cavanaugh: Yes, sir.

Justice William H. Rehnquist: You said the basis of jurisdiction is diversity of citizenship.

I take it then that it's state law of some state that forms the substantive basis for your claim of libel and slander?

Mr. Cavanaugh: Yes, Your Honor, ultimately state law will be applied.

Justice William H. Rehnquist: In what state, Wisconsin?

Mr. Cavanaugh: Your Honor, there are three possible choices, Wisconsin, the District of Columbia, and the State of Michigan.

We believe that the appropriate state law to be applied would be the State of Michigan.

The petitioner resides in the State of Michigan.

The publication was nationwide but the greatest impact would be in the State of Michigan, and we think that under the Wisconsin choice of law provisions they would look to the impact of the tort and that Michigan law would be applied.

Justice William H. Rehnquist: But it would be a question of Wisconsin choice of law then?

Mr. Cavanaugh: That is correct, Your Honor.

It is our contention Your Honors that a review of the press releases issued by Senator Proxmire that are contained in this record along with the evidence that relates to them will show that the press releases typically will take a small part of a research project, distort it and then indicate that the full amount of the research grant was granted for that project.

The press releases are typically filled with sarcasm and humiliate the researcher involved.

In April of 1975, Dr. Hutchinson was selected for the “Golden Fleece of the Month Award.”

The Golden Fleece issued for Dr. Hutchinson contained defamatory and untrue statements.

The following statements among others were made.

The Government paid one half million dollars to find out that anger, stopping smoking and loud noises produce jaw clenching.

All this money was given to Dr. Hutchinson of Kalamazoo State Hospital.

In fact, the good doctor has made a fortune from his monkeys and in the process made a monkey of the American taxpayer.

The press release also stated that Dr. Hutchinson's research work was perhaps duplicative.

In the course of the depositions, the respondents have admitted that prior to issuance of the press release they knew that the $500,000.00 did not go to Dr. Hutchinson personally, but rather was paid to the State of Michigan and used by the State of Michigan to pay salaries, to pay for supplies, overhead and similar expenses.

As far as the statement that in fact the good doctor has made a fortune from his monkeys, the respondents contended in deposition that this was merely a reflection of Dr. Hutchinson's status and power as a researcher, and a reflection of his income which they claim is among the highest percentages of income in the United States.

In fact, at the time the fleece was issued, Dr. Hutchinson's salary from the state was $30,000.00 which was the highest at any time covered by the fleece.

The period of time he served as a college professor, the salary would've been considerably less.

In depositions, the respondents had also admitted that prior to the issuance of the press release they received statements from the funding agencies that gave the true nature of Dr. Hutchinson's work.

The Office of Naval Research and the National Aeronautics and Space Administration, particularly gave statements to the respondents which indicated that Dr. Hutchinson had for the first time, given those agencies, an accurate method of detecting and measuring aggression.

The Navy hoped to use that research in training and selecting submarine crews.

NASA hopes to use that research in selecting crews for long range space missions.

In addition to the press release, the respondents issued a newsletter in April of 1975 which repeated many of the same defamatory statements.

This newsletter was sent to over 100,000 persons.

Some of whom resided in the Senator's home state of Wisconsin, and some of whom did not.

A second newsletter was issued in February of 1976, which also referred to Dr. Hutchinson.

In addition, Senator Proxmire made statements regarding Dr. Hutchinson's work on radio and television, including the Mike Douglas Show where the Senator referred to Dr. Hutchinson's work as “the most outrageous example of wasteful, extravagant, stupid spending.”

In addition to these activities --

Justice Potter Stewart: On that broadcast, am I correct in remembering that Dr. Hutchinson's name was not mentioned?

Mr. Cavanaugh: No, Your Honor, his name was not mentioned.

But his work was specified in --

Justice Potter Stewart: Well, then yes.

Your answer's yes?

Mr. Cavanaugh: That's correct.

His work was specified in such detail that he could be identified from what was said.

And in fact there are affidavits in the record, Your Honor, which indicate that people did recognize a Dr. Hutchinson was being referred to.

The prior press release issued by Senator Proxmire certainly aided in the identification later of Dr. Hutchinson.

Justice Potter Stewart: Isn't there some question about whether or not there was more than one broadcast?

I know you say there were at least two but.

Mr. Cavanaugh: There is -- we know of one other for certain is the Bob Barry Show which is referred to in the record.

In addition, there may have been other ones.

The Senator indicated in his deposition that he could not recall if there are other ones.

I believe there are some affidavits in the record which we filed from people who indicated that they believe that they heard mention of this sort of thing and other entertainment type television shows.

In addition to these actions, after the press release was issued, the Senator's aide made telephone calls to the various funding agencies.

During some of those calls, defamatory statements were made and pressure was apparently exerted on those agencies to cause them to cease funding Dr. Hutchinson's work.

Dr. Hutchinson filed suit and the defendants moved for summary judgment on the basis of the Speech or Debate Clause in the First Amendment.

The District Court granted summary judgment.

The Seventh Circuit Court of Appeals affirmed holding one, that the press release and the newsletters were absolutely immune under the Speech or Debate clause, even though they may have contained defamatory material.

Secondly, the Court of Appeals held that the radio and television interviews and the calls to the funding agencies to seek termination of the research grants were not immune under the speech or debate clause, but they were protected under the First Amendment.

Justice Byron R. White: Didn't the District Court make that same conclusion?

Mr. Cavanaugh: Your Honor, the District Court would've extended speech or debate, I believe to those items as well, but the -- it is correct that the District Court in addition found that petitioner Hutchinson was a public figure, and therefore, there was protection under the First Amendment.

Justice Byron R. White: So the Court of Appeals affirmed that part of the District Court judgment?

Mr. Cavanaugh: The Court of Appeals narrowed the District Court's finding.

The Court of Appeals found that some activity --

Justice Byron R. White: I'm talking about the First Amendment part of it.

Mr. Cavanaugh: Yes, that is correct, Your Honor.

Justice William H. Rehnquist: Well, when you talk about findings and so on, this case went off on summary judgment against your client.

Mr. Cavanaugh: That is correct, Your Honor.

Justice William H. Rehnquist: So we're not talking about a finding of fact on a disputed issue where the Court of Appeals affirms on a clearly erroneous basis.

Mr. Cavanaugh: That's exactly right, Your Honor.

In fact one of our contentions is that Dr. Hutchinson is entitled to a trial on the merits so that a jury or other trier of the fact can consider this evidence in any inferences that can be drawn from it.

Justice Byron R. White: Could I ask you, as I read the District Court's opinion, the District Court also reached the state law question of whether these remarks were defamatory?

Mr. Cavanaugh: That is correct, Your Honor.

Justice Byron R. White: And they ruled that they were not.

Mr. Cavanaugh: That is correct.

Justice Byron R. White: Now, this is a state law issue, I take it, isn't it?

Mr. Cavanaugh: Your Honor, --

Justice Byron R. White: Now isn't it, isn't it?

Mr. Cavanaugh: Yes, it is.

Justice Byron R. White: You just told that -- said to Mr. Justice Stewart that it was going to be local law that would govern this case.

Mr. Cavanaugh: That is correct.

Justice Byron R. White: And now if these remarks were not defamatory, what excuse is there for ever reaching the First Amendment issue at least?

I'm not talking about speech or debate.

Mr. Cavanaugh: Your Honor, the Seventh Circuit Court did not reach the state law issue.

They would appear --

Justice Byron R. White: I know but what -- isn't it the usual rule, you reach non-constitutional issues first?

Mr. Cavanaugh: Yes, Your Honor, I would think that if --

Justice Byron R. White: Well what if the Court of Appeals had affirmed the District Court on the ground these remarks were not defamatory.

Would there be any constitutional issues in the case?

Mr. Cavanaugh: Your Honor, to speak frankly, I think the Court's decision of Paul versus Davis would indicate that the torts involved do not invade constitutional rights.

Justice Potter Stewart: Well now, Paul against Davis is a 1983 case.

This is a case based upon state tort law, isn't it?

Mr. Cavanaugh: Yes, Your Honor it is.

Your Honor in Paul versus Davis, the Court considered whether invasion of privacy could rise to a constitutional level.

And Justice Rehnquist writing for the Court indicated there are only certain limited areas in which an invasion of privacy would rise to a constitutional level.

Therefore, while we would hope to view this as a constitutional issue, I think realistically that the Court has discussed at least in dicta in Paul versus Davis if not in holding.

Justice Byron R. White: Mr. Cavanaugh, why should we reach the either the First Amendment issue where the Speech or Debate Clause if the District Court is right that this wasn't defamatory anyway?

Mr. Cavanaugh: Well Your Honor, we believe that the District Court was clearly erroneous and we would have hoped that --

Justice Byron R. White: Maybe so but the Court of Appeals hasn't said so.

Mr. Cavanaugh: That is --

Justice Byron R. White: And we rarely disagree with lower courts on what state law is.

Mr. Cavanaugh: That is correct, Your Honor.

The Court of Appeals did not reach the issue and we would hope that the Court would remand for a determination on the issue after the Court would rule on the --

Justice Byron R. White: Why would we rule on then, on the constitutional issue?

Mr. Cavanaugh: Your Honor, --

Justice Byron R. White: Because we granted certiorari that may be is a good answer.

Mr. Cavanaugh: Your Honor it's an answer I was embarrassed to give.

Justice Byron R. White: Yes.

Mr. Cavanaugh: I think the other answer is that the District Court clearly was erroneous on the state law.

Justice William H. Rehnquist: I suppose you contend that the court -- you're entitled to have the Court of Appeals pass on the question of state law just the way you would in any other appeal from the District Court to the Court of Appeals even though the constitutional question shouldn't be reached.

Mr. Cavanaugh: That is correct, Your Honor.

The petitioner has a right to review, and that review should encompass at least the threshold issue.

Your Honor, I would like to in my remarks today, speak to two issues.

The first is speech or debate, and the second is the public figure issue.

Article I, Section 6 of the Constitution provides the senators and representatives for any speech or debate in either House shall not be questioned in any other place.

Chief Justice Warren E. Burger: Before you get on to that.

Is there in your position the notion that whether or not he is a public figure, is a jury issue which can not be resolved by the court on summary judgment?

Mr. Cavanaugh: Your Honor, that would be your position.

Our position is that a jury should be allowed to review the facts and the inferences that can be drawn from those facts to decide whether or not the petitioner is a public figure.

Chief Justice Warren E. Burger: Well then you must mean that among other things that that's an issue which cannot be resolved, that's a factual issue which can not be resolved on affidavits but only by a trial of the issues, is that it?

Mr. Cavanaugh: Yes, Your Honor, that it would appear appropriate to reverse the lower decisions and permit the petitioner to have a trial on the issue.

In understanding our speech or debate position, it's as important to understand what we do not challenge as it is to understand what we do challenge.

We do not challenge any speech by Senator Proxmire.

We do not challenge the insertion of a speech in the congressional record.

We do not challenge any vote or any action taken in Congress or in committee.

We do challenge a defamatory press release that was given massive publicity, two defamatory newsletters that were given similar dissemination, radio and TV appearances and the telephone calls to the funding agencies to seek termination to of Dr. Hutchinson's funding.

Chief Justice Warren E. Burger: Did you say there were 100,000 of these press releases sent out?

Mr. Cavanaugh: Yes, that's correct Your Honor.

Each press release was sent to over 100,000 persons.

Chief Justice Warren E. Burger: In -- all in Wisconsin?

Mr. Cavanaugh: No, Your Honor, somewhere in Wisconsin and somewhere in other states.

Chief Justice Warren E. Burger: Does the record show what the spread was under Wisconsin?

Mr. Cavanaugh: No, Your Honor, the only statement I believe is in Senator Proxmire's deposition where he indicated that some of those press releases were sent to Wisconsin, and others were sent outside of the state.

Justice Potter Stewart: Were those press releases or newsletters?

Mr. Cavanaugh: I'm sorry, newsletters.

Justice Potter Stewart: Of course not.

Mr. Cavanaugh: All of the press releases were sent to the media.

Justice Potter Stewart: Right.

Mr. Cavanaugh: This Court in the recent past has set out at least on three occasions that publications or republications outside of Congress are not protected by the Speech or Debate Clause.

In United States versus Brewster, a criminal bribery case, the Court pointed out that Congress had been engaged in many activities that are critical in nature rather than legislative.

Specifically mentioned were newsletters, news releases and speeches outside of Congress.

The Court then commented that it is never seriously been contended that these political matters are protected by the Speech or Debate Clause.

In Gravel versus United States, private publication of the Pentagon Papers was found not to be essential to the deliberations of the Senate and not part and parcel of the legislative process.

Hence, it was not protected by speech or debate.

In Doe versus McMillan, it was held that committee members who compiled and voted to publisher report were immune under the Speech or Debate Clause, but the Court made it very clear that the Speech or Debate Clause does not protect a private republication of documents introduced and made public at a committee hearing.

The Court went so far as to say that if a member of Congress republished libel by reading from a record from a congressional committee record in his home district, he would not be immune under the speech or debate clause.

And these recent statements by the Court comply with the historical understanding of the speech or debate clause.

Just as Story, 145 years ago in the commentaries on the Constitution of the United States, stated that if a congressman republished a defamatory statement that it was originally made in Congress, he would not be immune.

I think it's worth noting how far the defendants have gone in this case beyond the conduct in Doe.

In Doe, the defendants acted as a congressional committee and they did nothing more than prepare the report and vote along with the rest of the House for its publication.

Here we have one congressman issuing his own press release and his own newsletters.

In Doe, the publication was very limited.

It was limited to 1,682 copies that were sent to other congressmen and to the usual offices that received printings.

Justice John Paul Stevens: Mr. Cavanaugh, what would you say if they just mailed out -- that you just mailed out the congressional record?

Mr. Cavanaugh: Your Honor, I think then we would have a question of how wide was the dissemination.

If the dissemination --

Justice John Paul Stevens: Same mailing list you got here.

Mr. Cavanaugh: Your Honor, I would think it would not be protected.

I think that that is dissemination beyond a legitimate needs of Congress, and therefore would not be protected.

Chief Justice Warren E. Burger: But if the Congress for some reason or other sent the same copy of the congressional record out?

Mr. Cavanaugh: Your Honor if it was an action taken by Congress, I believe that it would be immune.

Chief Justice Warren E. Burger: Or a committee?

Mr. Cavanaugh: Yes, sir.

But if it was taken -- if the action was taken by an individual congressman and it is disseminated beyond legitimate legislative needs then it would not be immune.

In Doe, in addition to the publication being limited, there was no effort to call attention to it.

In the present case, every possible effort was made to call attention to the new release.

In short, in the present case we do not have Congress taking action or a committee taking action.

We have one senator issuing a press release, issuing a newsletter in giving him the widest possible dissemination.

This is not immune under the Speech or Debate Clause.

If I may, I'd like to turn to the public figure issue?

This Court in Gertz versus Robert Welch indicated that there were two types of public figure.

First, there was the all purpose public figure which was described as a person with pervasive power and influence, pervasive fame and notoriety.

The Court of Appeals and the parties in this case are in agreement that Dr. Hutchinson does not satisfy that definition.

Justice Potter Stewart: Now before you get into this public figure business or public official, those concepts have been deemed important in the decisions and opinions of this Court when the alleged false defamatory material has been published by some instrumentality of the public news media.

Isn't that correct?

Is there any case here --

Mr. Cavanaugh: That is correct.

Justice Potter Stewart: -- is there any case here that holds that the so-called New York Times rules are applicable when the defamatory statement has been made by an individual person, human being?

Mr. Cavanaugh: No, Your Honor, in fact that is an issue that we have specifically not conceded.

The respondents in our brief indicated in a footnote that apparently we had conceded the point that the same standard applies to public or to private defendants as would apply to a member of the media.

Your Honor, we do not think that's correct.

The Court has not yet addressed that issue.

Justice Burger or Chief Justice Burger in a recent concurring opinion pointed that out that the Court had not yet squarely faced that issue.

And there is considerable speculation in the legal community that perhaps different standards do apply to private citizens.

Justice Byron R. White: Well there are required decisions in the state courts the other way, aren't there?

Mr. Cavanaugh: Yes, Your Honor there are.

Justice Potter Stewart: So it may be that whether or not your client is a public figure is totally irrelevant?

Mr. Cavanaugh: It may well be that way, Your Honor.

Justice Potter Stewart: You don't brief or argue this basic question?

Mr. Cavanaugh: No, we have not.

And the reason that we have not is simply this.

New York Times involved both media defendants and none media defendants.

Justice Potter Stewart: Yes.

Mr. Cavanaugh: It would appear from the ruling in New York Times that there was an assumption that the same rule would apply to both types of defendants.

Now since that time in Gertz and in the other public figure cases, the Court seems to have rather carefully indicated that the defendant was a media defendant.

But Your Honor, for purposes of argument we have assumed that this is the same standard would apply, but I think that the Court is not foreclosed the possibility that different standards would apply to the two types of defendants.

Justice Potter Stewart: And although you've assumed it, you reserve the privilege of arguing that it doesn't.

Mr. Cavanaugh: That is correct, Your Honor.

Justice Potter Stewart: But you're not arguing it here.

Mr. Cavanaugh: That's correct, Your Honor.

The Court of Appeals held that Dr. Hutchinson fell within the second category of public figures, the limited public figures.

These were described as people who have voluntarily thrust themselves into the forefront of a particular public controversy in order to influence the resolution of the issue involved.

In other places in the opinion these persons who were referred to as person who had voluntarily injected themselves into an issue, persons who would assume special prominence in resolution of a particular dispute.

The Court of Appeals relied on four factors in finding that Dr. Hutchinson was a limited public figure.

First, the court relied upon his solicitation of federal funds.

Second, the published articles about Dr. Hutchinson's work; third about the stories that appeared about Dr. Hutchinson in local newspapers; fourth, the court relied upon the fact that it believed Dr. Hutchinson had sufficient access to the media to reply to the statement.

To these four grounds, the respondents would add a fifth which is that Dr. Hutchinson's research department was the subject of a public audit in the State of Michigan after the press release, apparently after the first newsletter and after the telephone calls to the funding agencies, but prior to some of the other publications.

Justice William H. Rehnquist: But that's almost like going back to the plurality opinion in Metromedia versus Rosenbloom, isn't it?

If you say something bad about a person and it's published, that makes him a public figure.

Mr. Cavanaugh: I think that's exactly right, Your Honor.

It's a bootstrap argument that anyone who is defamed by United States Senator is going to become a public figure and there's going to be a serving --

Justice Potter Stewart: On the very fact of his defamation?

Justice William H. Rehnquist: Right.

Mr. Cavanaugh: Yes, sir.

And he is going to have some access to the media because the media will call him for his response.

And so the -- a very public defendant such as a senator could make anyone a public figure if that were the test.

Justice Potter Stewart: Or the media always could.

Mr. Cavanaugh: That's right, Your Honor.

In regard to the -- Dr. Hutchinson's publications, his publications have consisted of four or five chapters in books, and several articles that he has published.

All of those were scholarly articles setting forth the results of his research.

They did not advocate a position in public funding.

They did not to seek to thrust him to the forefront of any issue involving the continuation of public funding.

It's important to note that in Gertz, the Court noted that Mr. Gertz had published many articles and many books, yet he was found not to be a public figure.

In regard to the articles that appeared in the local papers, in fact there was only one local paper.

And out of the seven stories that appeared, only one can be called a true story.

The other six were simply notices indicating that Dr. Hutchinson had been promoted at the university or something of that nature.

The publication that there was about Dr. Hutchinson prior to this release was limited solely to one newspaper in Kalamazoo.

This is in startling contrast to the publication in Firestone, Justice Marshall in his dissent that Mrs. Firestone had been a subject of over 80 newspaper articles during the course of the divorce proceedings, yet she was found not to be a public figure.

The last item mentioned by the Court of Appeals was a receipt of federal funding.

As the brief of the amicus curiae, the American Psychological Association points out over 72% now of research that is related to universities is funded by the United States Government.

If that were the tests, we would be making virtually every researcher a public figure.

But more importantly than that, merely by seeking public funds, a researcher that does not thrust himself into the forefront of any public issue.

So we would submit that that cannot be the test.

Justice John Paul Stevens: Mr. Cavanaugh, shouldn't -- if he's going to ask for, what do you get $900,000.00 or something like that according to the footnote in Judge Layton's opinion, shouldn't he be prepared to defend in a public forum the appropriateness of that kind of spending by the Government?

Mr. Cavanaugh: Your Honor, the $900,000.00 as I mentioned earlier, and $900,000.00 is a high figure.

It's something less than nine -- it was near 700,000 or 800,000.

But at any rate, the money was paid by the federal agencies to the State of Michigan or to the other sponsoring authority.

The research before it is funded is carefully evaluated by the funding agencies in a pure review committee.

Justice John Paul Stevens: But it may have been entirely proper, I don't suggest that.

But when you do get involved in seeking public funds of that magnitude, isn't it appropriate to consider that you must be prepared to defend publicly the expenditure of that kind of money?

Does that seem reasonable?

Mr. Cavanaugh: I think while the researcher should be prepared to defend his funding, he should not be given a status of public figure so that he has to rise to the high level of meeting actual malice before he can maintain an action, because in addition to the researcher defending the action, the agencies themselves that fund it can defend the action.

And that's where I think that the public or a congressman should look for justification rather than the researcher.

Justice John Paul Stevens: But doesn't he know that this is the kind of thing that is typically a subject of public debate and newspaper articles where there might be careless comment on the way it goes --

Mr. Cavanaugh: But Your Honor --

Justice John Paul Stevens: -- when you get into the appropriations area.

Mr. Cavanaugh: But Your Honor if we accepted that standard we would be back to the Metro Media standard, which is that it is a matter of general interest to the public.

And therefore, anyone who happens to be involved in it can be slandered anymore show actual malice before he can recover.

The Court has left that mark --

Justice John Paul Stevens: Well that is more of a public issue than the public person.

Mr. Cavanaugh: Yes, sir.

Your Honor, I would like to reserve whatever time I have remaining for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Cavanaugh.

Mr. Cavanaugh: Thank you.

Argument of Alan Raywid

Chief Justice Warren E. Burger: Mr. Raywid.

Mr. Raywid: Mr. Chief Justice, and may it please the Court.

A proper assessment of this case, we maintain, requires some examination of the facts of how Congress actually operates.

I'd like to review a few pertinent facts.

In the year of the filing of this suit, President Ford had submitted a budget to the Congress of just short of $400 billion.

In that budget was some $25 billion allocated for research and development.

That year proved to be an all time high of $76 billion in deficit.

The competitors for research and development funds included such national interest topics as energy research, national defense, environment and health.

It is an annual ritual when this budget is submitted to the Congress that a review take place which spends most of the legislative year.

That review process is the responsibility first to the Appropriations Committee and many of its subcommittees.

It conducts hearings along with formal review process and a report to the Congress and legislation submitted to the Congress is an informal review process that goes on continually throughout that year.

That is, the budget officers in each of these various agencies contact the appropriations staff and they exchange information and they are asked to give more support for particular items, to eliminate some items and to get the budget into what the Congress deems to be a proper shape.

In that same process is going on in the House on parallel committees similarly structured.

Chief Justice Warren E. Burger: Now is this -- these observations directed at the Speech or Debate Clause or the First Amendment issue or what?

Mr. Raywid: Principally, the speech and debate issue.

It also touches upon First Amendment but principally speech or debate, Mr. Chief Justice.

Justice Byron R. White: Mr. Raywid, could you comment just briefly on why we should reach that issue here if the Court of Appeals could've disposed of the case on a state law ground?

Mr. Raywid: Well --

Justice Byron R. White: I take it the Court of Appeals didn't deal with the state law ground at all?

Mr. Raywid: That is correct.

When a speech or debate immunity is raised by a senator, and it was in this case on behalf of the Senator and his aide, it requires a preliminary investigation or a preliminary determination by the court as to whether or not it appropriately applies, whether legitimate legislative activity is involved.

Once that has been raised and there is --

Justice Byron R. White: Do you think -- do you say for a speech or debate is involved it is the threshold issue because the senator shouldn't even be in court at all?

Mr. Raywid: That is correct.

Court should proceed no further when it makes such a determination and --

Justice Byron R. White: Shouldn't reach the local issue at all.

Mr. Raywid: Should not reach the local law, should not reach First Amendment.

It is an obligation on the part of the court to first reach that examination.

Justice William H. Rehnquist: So under your hypothesis, say the District Court here in Madison would've addressed first speech and debate then local law then First Amendment?

Mr. Raywid: That would be the appropriate order, but in order to reach local law, it might first have to determine First Amendment issues.

Justice William H. Rehnquist: Why?

Mr. Raywid: Well, if certainly if there is no libel then it need not address First Amendment.

Chief Justice Warren E. Burger: Well suppose a complaint in its terms alleged only that the defamatory statements were made in a speech on the floor of the House or the Senate on a given day and then give the content of that speech.

Would there be anything in that case except Speech or Debate Clause?

Mr. Raywid: There would be nothing in that case, Mr. Chief Justice.

That would be a simple determination and --

Chief Justice Warren E. Burger: And the demurrer type of response to it by the Senator?

Mr. Raywid: It would need no evidentiary showing whatsoever.

A demurrer type operation would be sufficient.

It wouldn't merely need to plea the Speech or Debate Clause on the affirmance on the complaint.

Chief Justice Warren E. Burger: On your approach on that hypothetical, the senator or congressman might write a letter rather than filing a formal answer saying “On the face of the complaint against me, I am not required to answer in any place other than the Senate or the House itself.”

And that would suffice in your view?

Mr. Raywid: Perhaps it might, but I would think that the Senator would've observed legal procedure like any other litigant and raise that issue preliminarily.

But he might choose not to answer at all, and it would then be incumbent upon the court to examine that complaint and see whether or not it was immune.

I have been describing an annual ritual of some rather major proportions in the Congress.

I want to emphasize that that is the principal business of the Congress and takes up most of its legislative year.

Now turning to Senator Proxmire, Senator Proxmire is a member of the Senate Appropriations Committee and he serves on five of its subcommittees.

Those five subcommittees have control or at least passed upon 60% of the national budget.

They passed on 75% on --

Justice John Paul Stevens: Mr. Raywid as I understood your brief, you'd make precisely the same argument if Senator Proxmire was not a member of any of these committees, is that right?

Mr. Raywid: That is correct, that any member has this right but it certainly more particularized in his responsibilities.

And if there is to be any examination made of his conduct --

Justice John Paul Stevens: Presumably every senator has an interest in avoiding waste of government funds, so I don't understand what the committee membership has to do with the case.

Mr. Raywid: The committee membership was one of the findings below.

It certainly explains if any examination is to be made of Senator Proxmire.

But I agree with you Mr. Justice Stevens that any -- that right rest in all congressmen and it is one that the Congress protects.

In addition to these committee assignments though I would like to mention one additional assignment he has.

All of these subcommittee assignments span his or span the particular agencies which receive the fleece.

But in addition to that, he has an assignment on the Joint Economics Committee and he is chairman of its priorities and economy in government.

That committee curiously may not propose any legislation.

It has purely an informational function.

It publishes a number of reports, but its most popular one is its monthly economic indicators.

It is widely circulated, and as I say, has an informative function only.

Senator Proxmire has been in the Senate for 21 years.

It has been hallmark of his representation that he has always criticized waste and government efficiency.

After 16 years in Congress, he made the decision that he could be much more affective in that criticism if he narrowed his focus and made some particular or dramatic representation of waste in government.

Billions have no relation or have no sense to the public as a whole or even that matter to economists.

But some particular item that the Government has paid twice the amount of its retail value does have a lot of meaning.

He has chosen a pattern of making a speech and also issuing a simultaneous press release for the widest possible coverage.

He has explained in his deposition the reason why he does this is that debate and speaking on the floor is not a debating process in the modern Congress.

Senators do not attend speech and debates.

They do not read the congressional record or they are not apt to generally, but they do read the newspapers about what has occurred in Congress.

And they do listen to their constituents about what their constituents are concerned about in Congress.

It is that manner and in that manner he feels that he can be most effective in his criticism of spending.

Now, these have been characterized as defamatory and -- or mischaracterized I believe as defamatory.

But before we reach that issue, I would like to show how each of these --

Justice Thurgood Marshall: But it's your position that he could defame.

Mr. Raywid: That is correct, if he is properly executing the legislative function which has been authorized by the Congress.

Justice Potter Stewart: He certainly could in a speech on the floor of the Senate.

Mr. Raywid: Without question.

Chief Justice Warren E. Burger: What if he made a commencement speech at the University of Michigan where Dr. Hutchinson was employed and said all the same things?

Mr. Raywid: Well, in -- possibly yes, probably not.

Chief Justice Warren E. Burger: Probably not protected?

Mr. Raywid: Probably not protected.

We draw a distinction in this case and I think you Mr. Chief Justice put your finger on or at least our element of the case, our major emphasis when you asked Mr. Cavanaugh whether he would concede as to whether a publication authorized by the Congress would be protected.

He said in his view, it would be.

It is our position that this particular release through newsletter and through and through press release is a matter specifically authorized by Congress.

Justice Byron R. White: Well that's in general, that's in general I take it because congressmen and senators are authorized to frank their communications to their constituents.

Is that what you mean?

I mean this particular release wasn't approved by Congress.

Mr. Raywid: That is correct.

Justice Byron R. White: Or by any committee for that matter.

Mr. Raywid: That is not correct.

Justice Byron R. White: Why?

Mr. Raywid: A procedure has been established in 1973 after this Court's opinions in its 1971 and 1972 session.

A procedure was established for mailings.

That's in 39 U.S.C. 3210.

The first thing that was placed in that statute was first to express the intent of Congress.

Was the intent of Congress to inform the public and that that was part of its legislative process?

Then it said congressmen may mail certain items.

Justice Byron R. White: Right.

Mr. Raywid: They may not mail political items.

They may not put in personal information.

Then it established a procedure for complaints and it also established a procedure for review.

As petitioners pointed out, they don't review them for the accuracy of the statements but they --

Justice Byron R. White: What I'm asking was this particular publication approved as it was written by a committee?

Mr. Raywid: It was approved for it was because mass mailed.

It was sent to the Senate Service Department for approval as to whether it conforms to these statutory rules that were enacted in 1973.

In that manner, we maintain that this has been conduct that has been authorized by Congress and for that matter it is protected.

Now it would -

Justice William H. Rehnquist: Do you think that matter is entirely in the hands of Congress that Congress could've passed a statute saying that anything that a congressman or a senator wants to mail anywhere at anytime is protected regardless of how defamatory it is?

Mr. Raywid: That would be too broad.

What we do maintain is that this Court should give due deference to Congress in the way Congress operates, in the way Congress says it operates.

Congress understands best how to perform its functions.

The Court is willing and has frequently given due deference to legislative schemes that the Congress establishes.

When the Congress itself defines how it is to operate, we say that a substantial amount of deference should be given to Congress.

There may be some determination initially by this Court in its authority to review all acts of Congress even its own functions as to whether --

Chief Justice Warren E. Burger: Do I understand you to suggest that Congress by a legislative enactment can broaden, expand the scope of the Speech or Debate Clause?

Mr. Raywid: The Speech or Debate Clause is broad but Congress helps to define that and Congress helps to --

Chief Justice Warren E. Burger: But defines it finally?

Mr. Raywid: Well, certainly this Court must pass on the scope of speech or debate.

But in arguing due deference, it seems to me that the Court should give wide latitude the Congress in its explanations of its functions.

As I said, it understands what its obligations are at best, and some review process is necessary.

Justice William H. Rehnquist: Well but when you're talking about deference basically, this is a case that could've been in, for all practical purposes for the issues here been brought in the state court in Wisconsin.

And so the ultimate question is whether the State of Wisconsin in enforcing its libel policy or its slander policy is foreclosed from enforcing it by the Speech and Debate Clause of the United States Constitution.

It isn't a question of this Court giving due deference to the Senate or the House.

Mr. Raywid: Well, this Court of course is the ultimate authority on defining legitimate legislative activity.

Justice Potter Stewart: And it's up to us in this case to decide the question that my brother Rehnquist accurately, I think, says is posed by this case.

Mr. Raywid: That is correct.

Justice Potter Stewart: Can the State of Wisconsin enforce its policy expressed in its tort law in this diversity case, in defamation slander cases in these circumstances despite the speech and debate clause.

And that's a decision that -- that's a question that this Court has to answer in this case.

Mr. Raywid: That is correct.

Justice Byron R. White: But your submission is I take it that the Senator may in his newsletter to his constituents tell knowing or -- and deliberate falsehoods about other people and be immune.

That even if this is the closes kind of defamation under Wisconsin or local law that the Senator is immune from distributing these statements in his newsletter, that's you submission.

Mr. Raywid: Certainly that's viewing it in its harshest light, but that one I would have to agree.

Justice Byron R. White: Yes, that's the basis on which we must review the case, isn't it?

Mr. Raywid: That -- well not entirely since the Court --

Justice Byron R. White: Well why isn't it?

Mr. Raywid: Well since the Court has held that it was not defamatory material that --

Justice Byron R. White: Who held that?

Mr. Raywid: The District Court.

Justice Potter Stewart: Well that's the end of the case then if we accept that.

Mr. Raywid: That's the --

Justice William H. Rehnquist: -- never been reviewed by the Seventh Circuit.

Mr. Raywid: No, it is not.

Justice Byron R. White: So I think we must on the speech or debate issue, you certainly can object to our viewing the case on the basis that this is the grossest kind of defamation?

Mr. Raywid: That I would have to agree.

And that is -- that is the issue posed when speech or debate has been an issue raised.

Justice Byron R. White: Exactly.

I agree with you, I agree with you.

And would you say the senator's immune on the -- at the rostrum in his home district if he gets out his newsletter and reads it?

Mr. Raywid: We would make a distinction between what has been authorized by Congress.

What is in the means and how Congress has defined its particular function?

Justice Byron R. White: Well what do you say about he radio and television broadcast?

Mr. Raywid: We have advocated to what is specifically authorized a per se approach.

That TV appearance was not authorized by Congress.

In that instance, an ad hoc approach might be necessary.

Was -- and a more thorough examination of the material of that television broadcast.

Was the congressman or was the senator in that program serving legitimate legislative needs?

Justice Thurgood Marshall: And isn't your position, not that we determine by us.

It's your position that staff person that this was handed to decided as to whether this is a congressional action or not.

Mr. Raywid: Well I --

Justice Thurgood Marshall: Is that your position?

Mr. Raywid: In a sense, yes.

Justice Thurgood Marshall: Well do you think Congress can give to a person that is neither congressman nor anything else that authority?

Mr. Raywid: If there are disputes, that is supposed to be referred to the rules committee.

But quite frequently the Senate Service Department returns mails or returns newsletters and says “that does not conform to our rules.”

Now with --

Justice Thurgood Marshall: And what are the rules?

Where are the rules?

Mr. Raywid: The rules are contained --

Justice Thurgood Marshall: There are the rules says that if nobody can pleads it goes out.

Isn't that what the rule says?

Mr. Raywid: No the Senate rules in --

Justice Thurgood Marshall: Says what?

Mr. Raywid: -- in Rule 25 and Rule 48.

Justice Thurgood Marshall: Says what?

Mr. Raywid: -- places authority, screening authority --

Justice Thurgood Marshall: And where is that, may I see the rule?

Mr. Raywid: The screening of -- first of all the rules can be --

Justice Thurgood Marshall: Do have it anything that filed here?

Mr. Raywid: Yes.

It has been cited in our briefs.

Justice Thurgood Marshall: Then where.

That's the one – well, I'll find it.

Never mind, never mind.

Mr. Raywid: Well we have a portion there on how Congress actually operates.

I want -- I don't want any misconception about this.

There is no --

Justice Thurgood Marshall: We do know don't we that any congressman is sending a piece of paper in the congressional record and nobody objects.

We know that don't we?

Mr. Raywid: Well I --

Justice Thurgood Marshall: Don't we?

Mr. Raywid: -- I know of no limitation on that.

Justice Thurgood Marshall: Right.

Mr. Raywid: He may put it in the congressional record and --

Justice Thurgood Marshall: Get congressional approval?

Mr. Raywid: He needs no -- there is no censorship imposed on members.

But I -- before we leave that Mr. Justice Marshall, I don't mean to represent that the Senate Service Department does the censoring to screen out information.

It does --

Justice Thurgood Marshall: But does anybody?

Mr. Raywid: Yes, yes there --

Justice Thurgood Marshall: But first does anybody in the Senate pass upon what goes out?

Mr. Raywid: Yes, there is a self-policing policy.

First there is this screening also --

Justice Thurgood Marshall: By whom?

Mr. Raywid: By the Senate Service Department.

Justice Thurgood Marshall: Right.

Mr. Raywid: And the --

Justice Thurgood Marshall: Those are employees?

Mr. Raywid: That is correct, and they are employed by the rules committee.

Now then there are two other restraining forces, it seems to me, and that is the ethics committee.

Complaints may be referred to the ethics committee for disciplinary action.

The statute that I referred to in 1973 establishes a whole procedure for due process and screening of any material that may be defamatory.

So there is a self-policing process and of course the major process with a legislator is supposed to be -- the major restraining force is supposed to be the ballot box.

Justice Thurgood Marshall: So that guy should've gone to the committee, if his committee is someplace, someplace in the Senate to complain.

Mr. Raywid: Yes, he could have done that as could any citizen.

We've urged that the Speech or Debate Clause must take into account how Congress actually operates.

We've mentioned due deference.

In the investigations conducted by Congress, this Court has seen to show the greater -- the greatest amount of deference even though that investigation might not be specifically authorized by Congress.

The -- once an investigation has been determined that it is a matter upon which legislation may be had, this Court has said it will not examine any further the conduct and that it is immune.

We would say that the same principle ought to apply in the -- with respect to the informing function.

Justice William H. Rehnquist: But hasn't that generally applied to committee chairman or committee activities rather than individual members of Congress?

Mr. Raywid: No, Mr. Justice Rehnquist, I would not say that it has been -- most frequently it's exercised by committee chairman.

But there has no been restraint on investigation by a particular member.

In the Gravel case, in the investigation in that sense there was to be no investigation or the Court ruled there would be no further investigation as to the motives of that member in preparing himself for the committee hearing.

Now also a distinctive feature in Gravel from this case, and it has been relied upon by petitioner is that conduct that is secret material was specifically proscribed by Congress, both its collection and its distribution.

The distinction we believe that should be apparent in this case is that this particular material has been generally authorized by Congress and the newsletters and press releases had been specifically facilitated.

Chief Justice Warren E. Burger: Well, but you've already said that no one checks the content then how do you authorize the contents of a letter which the Congress has carefully, very carefully said they would not censor, was the term you used.

Mr. Raywid: It would not -- it would not try to muscle a particular member.

That might be an abuse that this Court would ask to be resolved in the member's favor.

But it does attempt to screen for facilitation or that the particular proscription in the 1973 Act had not been violated, that --

Chief Justice Warren E. Burger: You're only suggesting that Congress could by a legislative enactment authorize a libel, as I think Mr. Justice White put it to you in different terms, extend the statute of the speech or debate immunity to something which it does not cover within the reach of that clause.

Mr. Raywid: It may frequently and has in the past concern libel.

Justice Byron R. White: Well Mr. Raywid what if Senator Gravel's newsletter had contained the so-called the secret information you referred to?

Mr. Raywid: Then I expect the screening process might have stopped its distribution.

Justice Byron R. White: Well you said it doesn't censor.

Mr. Raywid: I said it screens for conformance with its rules.

Justice Byron R. White: Well what if something in the newsletter would violate Wisconsin law or local law?

Mr. Raywid: So long as it serves the legitimate legislative need, and so long as Congress has made that determination, it seems to me that due deference should be paid to that determination and immunity would follow.

And the Wisconsin law would have to give way.

Justice Byron R. White: So you think Congress did intend to authorize senators to in their newsletter, give them immunity, absolute immunity for the grossest kind of defamation that you think that was their intention in this legislation?

Mr. Raywid: It sought to protect their communication with their constituents and --

Justice Byron R. White: Well, yes or no, I would suppose my question can be answered with yes or no.

Mr. Raywid: In the extreme situation that you pose, yes.

But there is broad definition there as to -- that the matters should relate to business before the Congress, to matters of broad public interest, to only state information where it bears upon the impact of national legislation.

Chief Justice Warren E. Burger: What about the letters, the newsletters that went outside of Wisconsin?

Senators don't have constituents in the technical sense outside of their own states, do they?

Mr. Raywid: That is true.

However, each senator of course has national impact and votes on national issues.

The actual facts there are that -- and what Proxmire explained was that he mails his constituents.

He also avails to those persons who have requested to be placed on his mailing list.

Chief Justice Warren E. Burger: And that might include quite a few newspapers for example and radio and television broadcasters.

Mr. Raywid: Those -- that determination is made entirely separately, and those are the press releases.

They are broadly distributed and are not confined to his state by any means.

Petitioner has properly represented that they went to news media throughout the country.

Constituents are another matter, the newsletters are another matter and they are not sent as a matter of routine to the press and the media.

There has been reliance placed on Story's interpretation of the constitution, and his early pronouncements as to whether or not speech or debate would cover -- speech or debate immunity would cover republication.

On the very issue that you've raised Mr. Chief Justice, Story has an extended comment.

I don't know whether we read different editions, but in the fifth edition in Section 866, and there's an extended footnote which he says that Congress may have an immunity when they write to their constituents, report to their constituents and he treats the very issue that you raised.

That constituent issue should not be confined to his particular state.

He ought to be able to reach an influence legislation beyond that state.

And his immunity is perhaps so far as he accurately reports and does not defame.

Now Story goes on in the quote that has been cited in the reply brief, and then there's a caveat at the end of his long examination of speech and debate which was not included in that quote.

And he says that there are legal scholars that agree -- or that disagree on my interpretation of the English law, than make a distinction in American law that because it -- the Congress has mandated that all of its speeches and all of its proceedings, unlike the English law or parliament, be made public then the argument follows that speech or debate should follow a republication of official congressional business.

Whether it be on speaking on the floor, or whether it be on publication or distribution by that congressman of what he said on the floor.

Justice William J. Brennan: Mr. Raywid, if gross defamation is not redressable because in speech and debate in a judicial proceeding, what can the Senate do about it?

Mr. Raywid: I miss the first part, if you said gross?

Justice William J. Brennan: If gross defamation is not to be the cause of speech and debate redressable in a judicial proceeding, is there anything the Senate can do?

Mr. Raywid: The Senate can discipline its member.

The Senate can --

Justice William J. Brennan: That's all?

Mr. Raywid: -- that's all.

It can not award damages, but it can discipline --

Justice Byron R. White: Then it can't even vindicate the person's reputation, can it?

Justice Potter Stewart: No.

Mr. Raywid: Well I would say --

Justice Byron R. White: There wouldn't be a trial or a hearing or anything?

Mr. Raywid: Oh yes.

There has been established in the ethics committee or other detailed procedure for of due process.

Justice Byron R. White: For participation by the victim of a libel, for example?

Mr. Raywid: It does not specifically call for that, no it does not.

But that his views might be expressed through committee council, and that would be in the sense of --

Justice John Paul Stevens: And Mr. Raywid --

Chief Justice Warren E. Burger: How many members have been subject to that procedure?

Mr. Raywid: I do not know.

In the early history of the Congress --

Chief Justice Warren E. Burger: Are you speaking of --

Mr. Raywid: -- the disciplinary practice was quite common, and it certainly is increasingly so not as to the particular issue raised by Mr. Justice White.

I --

Chief Justice Warren E. Burger: Wasn't the last one -- was the last one about 20 years ago, the most recent?

Mr. Raywid: I do not know that how frequently it is been.

Of course the 1973 Act is rather new.

Justice Thurgood Marshall: Mr. Raywid, the trouble -- what law of libel would you apply in the Senate?

Mr. Raywid: The -- none.

Justice Thurgood Marshall: Definitely weird.

I mean you couldn't choose between Michigan and Wisconsin, you acted -- you just got to get more at there.

Mr. Raywid: We have argued that it was somewhat akin to judicial immunity.

Justice Thurgood Marshall: Right, right.

Mr. Raywid: The senators --

Justice Thurgood Marshall: Right, so you don't get to be really whether or not it is libel.

Justice Potter Stewart: Right.

Justice Thurgood Marshall: I thought when you get to whether or not that's a libel you're going to be in trouble.

Mr. Raywid: Well I disagree with you and the District Court supports me.

Justice Thurgood Marshall: But you don't mind if we go the other way and say you don't touch it all.

You don't mind it's going that way do you?

Justice John Paul Stevens: It is correct, is it Mr. Raywid that in the disciplinary proceedings for example of Senator McCarthy that the victims of his comments did have an opportunity in some cases to testify and a certain extent vindicate their reputation?

Mr. Raywid: Well, I think they had an opportunity and I think they were called by committee council, and a careful bill of particulars was prepared.

Justice John Paul Stevens: Whether it was an adequate opportunity is another issue of course.

Mr. Raywid: Excuse me?

Justice John Paul Stevens: Whether it was an adequate opportunity is another issue of course.

Mr. Raywid: Well it certainly was not an open trial, but it was due process and it was --

Justice John Paul Stevens: But in any event, that's the remedy that you say is available on this sort of situation?

Mr. Raywid: Yes.

Justice Byron R. White: And but they were invited.

They had no right to appear there.

Mr. Raywid: Well I'm quite certain they sought appearance.

Justice Byron R. White: Yes but --

Mr. Raywid: But --

Justice Byron R. White: -- they were there at the sufferance of the committee.

Mr. Raywid: At the sufferance of the committee.

Justice Potter Stewart: Mr. Raywid, you haven't there, if you have I missed it, mentioned the language the in the court opinion on the Brewster case that explicitly and unambiguously held said, said that newsletters and press releases are simply not covered by the Speech and Debate Clause.

Have you mentioned that?

Mr. Raywid: Certainly, I have mentioned it extensively in the brief.

Justice Potter Stewart: Yes but at this point.

Mr. Raywid: Certainly, I mentioned it to the courts below.

What we hadn't pointed --

Justice Potter Stewart: Because it wouldn't be up to you, I suppose, to emphasize it and that's --

Mr. Raywid: Well what we try to point out in the courts below, and successfully so, that that issue was not posed to the Brewster court, that that was not contained in the Brewster case.

They were talking about bribery.

It might've been helpful in explaining the scope of legislative immunity in that particular case.

We're not maintaining for unlawful conduct here that any specific activity proscribed by Congress itself should speech or debate immunity apply.

Justice Potter Stewart: That is criminal conduct.

Mr. Raywid: Any --

Justice Potter Stewart: When you said unlawful conduct, you meant criminal conduct did you?

Mr. Raywid: Well, principally criminal conduct but it might.

Justice Potter Stewart: Because the allegation is that the Senator's conduct was unlawful as a matter of civil law.

Mr. Raywid: Well I'm talking about a proscription imposed by Congress itself.

Justice Potter Stewart: Federal law.

Mr. Raywid: Yes.

But also in the Doe case when they were -- when the Court was considering whether it was necessary to make a legitimate legislative need.

In order to meet the Brewster language, we made an elaborate evidentiary showing rather than the mere halting of immunity by simply the letter as the Chief Justice suggested might be filed.

We made an extensive evidentiary showing to try and explain how Congress operates, how Congress conceives this -- its own function, and in that manner hope to overcome that dicta and showed that this was necessary to a legitimate legislative function.

Justice Potter Stewart: The statements in the Court's opinion in the Brewster case are clear and unambiguous aren't they?

They are, as you suggest, perhaps dicta.

Mr. Raywid: They are.

Justice Potter Stewart: That the Court would certainly have to modify or remand those views, wouldn't it?

Mr. Raywid: Well the --

Justice Potter Stewart: If you're correct.

Mr. Raywid: The --

Justice Potter Stewart: Just to -- to accept your submission.

Mr. Raywid: Well we believe that a majority of the Court has.

The dictum -- the -- excuse me, the Brewster majority turned out to be the Doe minority.

And they were talking in the Doe minority of the rights of Congress or the necessary function of Congress to inform.

We think that seven members of this Court have given more than adequate treatment to the informing function.

Justice William H. Rehnquist: In Doe, the committee it authorized the publication, had it not?

Mr. Raywid: Yes it had.

The would --

Justice Potter Stewart: This informal function of, excuse me, excuse me I'm sorry I didn't mean to interrupt.

You can complete your --

Mr. Raywid: Well I merely wanted to say that yes, and to that extent we would say that in our per se application that those should be extended.

It was only of course the majority opinion there was written by only two justices and joined by an additional three.

But I think the critical factor in Doe and the influential factor with the -- that made up the majority is that this was exposure for the sheer sake of exposure in violation of Watkins, and the Court was offended by that.

When -- in this particular case, it is so intimately tied to public spending and how these agencies and given to these particular agencies, and authorized by Congress.

Those are distinguishing elements but to the extent that we are contrary to Doe, we would ask the Court to modify that.

Chief Justice Warren E. Burger: Are you suggesting that in order to explain unwise public expenditures, it's necessary to libel someone in order to get attention?

Is that the justification for the libel?

Mr. Raywid: No, but as Mr. Justice White said, or I believe I'm properly paraphrasing him that we may make the assumption that it was libelous.

No, I wouldn't say that was necessary, but neither does the Court, it seems to me in -- want to get into the examination of each the exercise of each congressman, how he feels he will reach the public, how he will influence legislation, how he will garner votes.

If it is, it will be placing the legislature under the heel of the judiciary and it will remove to a substantial degree the representation of Congress.

Justice William H. Rehnquist: Well, you say of the judiciary, I mean basically it's a question of Wisconsin tort law unless the Constitution prohibits it.

It isn't certainly up to this Court to kind of pull something out of the sky and say “yes, you can” or “no, you can.”

Mr. Raywid: Well that issue may never come to this Court, it's true.

But I would put no less weight on a possible hostile judiciary in the State of Wisconsin or any other state as curbing the activity of a congressman.

It's equally important it seems to remove that from all courts.

Justice Byron R. White: Even for openly illegal activities?

Mr. Raywid: Not for unlawful activity or activity proscribed by Congress.

But where it is authorized --

Justice Byron R. White: But it's a criminal libel law in the state, and this publication -- anybody would, in his right mind would take this criminal libel, you say he's immune?

Mr. Raywid: Yes, it would say he's immune, it sound very much like sedition laws.

Justice Potter Stewart: Mr. Raywid -- excuse me.

Justice Byron R. White: For libel, the more libel sounds like sedition?

Mr. Raywid: A criminal to prosecute a congressman in issuing a letter in the manner proscribed by Congress and make that subject to a criminal libel law, yes.

It seems to me akin to a sedition law.

Justice William H. Rehnquist: Well sedition it thought was criticism of the Government?

Mr. Raywid: Yes, and this -- and I've stated in every one of these instances or the conduct under review here is conduct of criticism of the Government.

Justice William H. Rehnquist: Well supposing a senator goes back to his home state and says “The guy who lives next to me in Madison is a real SOB.”

Mr. Raywid: We should bring an action against that congressman, and he should be prosecuted in those local courts without question.

Justice William H. Rehnquist: So your doctrine would not extend that far?

Mr. Raywid: It certainly would not.

Justice Byron R. White: That isn't sedition.

Mr. Raywid: No, that's not sedition, the same if he ran over someone.

Chief Justice Warren E. Burger: Very well, I think you --

Justice Potter Stewart: You rely -- I'd like to ask the question I've perhaps been too deferential.

Chief Justice Warren E. Burger: Go ahead.

Justice Potter Stewart: You rely a great deal on your brief on what you call the informing function of Congress to justify bringing the newsletters and press release within the Speech and Debate Clause, that function which was emphasized by Woodrow Wilson has been by many, many others.

I'd always understood to be largely the function of Congress to inform itself in order to intelligently legislate.

You rather understand it as a function of informing the public.

Mr. Raywid: I don't believe, or certainly not my reading Mr. Justice Stewart of all of those treatises as narrowed it to Congress.

It's seems to the major --

Justice Potter Stewart: You mean the justification for congressional investigations by its various committees and subcommittees.

The basic justification is the informing of the members of Congress so that they can be -- act intelligently in deciding whether or not to vote for against a proposed legislation or even in framing the proposed legislation.

Mr. Raywid: I think Mr. Justice Blackmun has best articulated our position on the informing function in his dissent in Doe.

He characterizes that informing function in four different stages.

He talks about the public, getting word back from the public, and the participation of the public and with their congressman and how that influences legislation.

I would say it was far beyond --

Justice Potter Stewart: And with all respect to my brother Blackmun, that was a dissenting opinion, correct?

Mr. Raywid: It was a dissenting opinion, but as I've tried to point out it seems to me that a number of dissenters in the varying opinions of the Court had been very much conscious of the informing function then they would make up or which I invite a new majority in recognizing the informing function as --

Justice Potter Stewart: That is the informing of the public, not the informing of the members of Congress.

Mr. Raywid: Most definitely.

Justice Potter Stewart: It's both at least if you would concede that, wouldn't you?

Mr. Raywid: Oh certainly.

Other members play a definite part, and that was what Senator Proxmire said was important to --

Chief Justice Warren E. Burger: I read Woodrow Wilson's essays as putting the emphasis on informing and educating the public.

But that was a function of the Congress through its committees not 100 individual senators and 435 individual congressmen running off on their own and having any immunity.

Mr. Raywid: In the tier, in the hierarchy and structure of the Senate, the member's rights have been protected and encouraged.

Chief Justice Warren E. Burger: By?

Mr. Raywid: By the Senate rules.

No one attempts to muscle an individual senator.

And in the investigative phase, it's pointed out by the Court of Appeals in the McSurely case.

A summary information must start with a particular senator.

He receives some information, he asks an executive official and that starts the process.

It can not all be formalized through subpoena, to the -- by a committee or by the chairman of the committee, otherwise nothing really would get started except the most popular items.

Rebuttal of Michael E. Cavanaugh

Chief Justice Warren E. Burger: We have detained you long enough now counsel.

We'll see if Mr. Cavanaugh has anything further.

Mr. Cavanaugh: Your Honors, Mr. Raywid just comment that this case does not involve a case of exposure for the sake of exposure.

We would vigorously disagree with that.

That appears to us to be exactly what occurred here.

Senator Proxmire's devout purpose was to award the Golden Fleece to funding agencies for the funding that they had granted.

There was no need to name Dr. Hutchinson by name.

There was no need to ridicule and humiliate Dr. Hutchinson.

There was no need to send this press release in addition to every newspaper and member of the media of the United States, to members of the press in Japan, Italy, Britain, and Canada.

The Senator's press releases may be entertaining to read and they may be entertaining on television talk shows, but to the people in Kalamazoo, Michigan to the victims in Madison, Wisconsin and the victims in the other places in the United States they're devastating, they humiliate, they ridicule and they emotionally cripple.

What can a man who's been a victim of one of these releases say to his children when he comes home?

What can his children tell to their schoolmates?

The Court has always attempted to balance the interest of the individual and his reputation would --

Justice Byron R. White: Well you can tell him who to vote for, I guess?

Chief Justice Warren E. Burger: They don't allow in Michigan citizens to vote in other states, do they?

Justice William H. Rehnquist: In Michigan they --

Mr. Cavanaugh: That's right, nor do they do those unfortunate people in Japan who receive these newsletters or the press releases.

Chief Justice Warren E. Burger: Well isn't the real damage that you're talking about is in the academic community and his professional reputation as a scientist who either within the country or out of the country if he has a wide enough reputation?

Mr. Cavanaugh: That certainly is a major element, but there also is damage just to the people who know Dr. Hutchinson as a person.

In effect a press release like this calls a man a charlatan or a fraud, accuses him of taking government money for doing worthless work.

You could take the same approach and describe a scientist discovering penicillin as some charlatan taking money to watch bread mold.

It's simply unfair and what the Senate is asking us to do in this case is to totally disregard the balancing process that has occurred in the past, and to grant senators absolute immunity for anything they say at time in any place no matter how widely it is disseminated.

Justice John Paul Stevens: Mr. Cavanaugh, in your principle argument I asked you about the public figure issue and you helped me out there.

What about the public official problem which the court below did not reach?

Wasn't your client a public official as that term has been used in the cases?

Mr. Cavanaugh: No, Your Honor, I don't believe he is.

A public official is jived and defined as a person who occupies a high public position who would be the subject of interest without the controversy.

In this case, Dr. Hutchinson was Director of Research of Kalamazoo State Hospital.

He had 10 or 11 employees under his supervision.

He could not hire, he could not fire.

He had very little discretion.

He could respond to a contract request from a federal agency but he would respond through his employing department.

He was no different in the type of position that he had really than someone who is director of nursing at the institution or director of physical facilities.

That he is not the type of public official that I think the court had in mind in the cases where public official is spoken of.

He was not an elected official --

Justice John Paul Stevens: Could you measure -- did you measure it by the number of persons under his supervision?

Is that the test?

Or was it the importance of his responsibilities?

Mr. Cavanaugh: Your Honor, I don't think that there is any one test.

The number of people under him is a measure of his responsibility.

If responsibility is the test, Dr. Hutchinson had no authority to spend the money that Senator Proxmire has referred to.

It was sent to the state of Michigan, and mostly Hutchinson could do was to submit a purchase request or a voucher for payment of salaries.

The people who control the funding were the funding agencies in Washington, and then the agencies in Michigan that received the funds.

Dr. Hutchinson was merely another civil service employee.

Justice Thurgood Marshall: He was an officer of the state, wasn't he?

Mr. Cavanaugh: An officer of the state, sir?

Justice Thurgood Marshall: Usually they are.

Mr. Cavanaugh: He was --

Justice Thurgood Marshall: They are usually the officers of the state.

Mr. Cavanaugh: He was an employee of the state, Your Honor --

Chief Justice Warren E. Burger: How is the senator or a congressman, however, who is focusing on some particular problem, how do you say he should inform his constituents or the broad constituency which is the country?

Mr. Cavanaugh: Your Honor he can inform without defaming.

He should not need absolute immunity to say the boldest lie.

It should be enough that he can tell the truth to his constituents or the other members of the nation.

He certainly can say anything to other congressman and have absolutely immunity.

Chief Justice Warren E. Burger: Well, if he issued a press release, even a great many of them, simply stating all these facts that “X” hundred thousands of dollars were being done and reciting factually and accurately the nature of the research, how many members of the media would pay any attention to it?

Mr. Cavanaugh: Yur Honor, --

Chief Justice Warren E. Burger: It's a pretty dull stuff, would it?

Mr. Cavanaugh: It's difficult to say how many members of the media to pay attention to one of these Golden Fleece is two weeks after it is issued.

It's certainly sensational when it is issued, and it gets coverage simply because it is sensational because of the witty things that it says.

But Your Honor I'm not sure that that ultimately is given any more attention than would a factual truth worthy or truthful newsletter or press release.

Justice Thurgood Marshall: What do you say about the protection of the senator from having to go before a court on the Island of Maui in the Hawaiian Islands and defend the statement that he made?

Mr. Cavanaugh: Your Honor, if he makes a statement, it is his obligation to defend it.

Justice Thurgood Marshall: To go to Maui and defend it?

Mr. Cavanaugh: Your Honor, I would disagree of Mr. Raywid's statement that he does not even have to file an answer.

I believe the law is that a senator does have to file an answer.

He could raise speech and debate then if it's a legitimate activity, and he certainly could ask to have the case move to some other form.

But if the senator makes a defamatory statement and broadcast it so widely that it reaches Hawaii then I don't think it's unfair to initially to require him to appear there through counsel to defend it.

Chief Justice Warren E. Burger: But the clause, if it's within the clause, the clause says he may not be questioned.

That literally means they can't even ask him a question on a deposition, on the witness stand in the courtroom or anywhere else.

Mr. Cavanaugh: If it's within the privilege.

Chief Justice Warren E. Burger: I see.

Justice William H. Rehnquist: And Congress could forbid any federal court from taking jurisdiction over a claim such as this against a member of Congress, could it not?

Mr. Cavanaugh: Your Honor I don't believe Congress could, because if you said that Congress could do that then you're saying that Congress has the power to rewrite the Constitution and that Congress has the power to say how broad the protection is afforded by the Speech or Debate Clause.

Justice William H. Rehnquist: Oh!

They're not rewriting the Constitution.

They're simply saying that courts that which they create.

Lower federal courts shall not entertain particular types of action.

Mr. Cavanaugh: Then, Your Honor, I presume our cause of action would be in a higher court, perhaps in front of this Court as you --

Justice Potter Stewart: Simply under Article III that Congress has the power to create any inferior federal courts that it wants to and to allocate to them any jurisdiction that it wants to.

That's all that my brother Rehnquist is talking about, I think.

Mr. Cavanaugh: Yes.

But I don't think that that would deprive the victim of his right to appear in some court, perhaps state court perhaps a higher federal court that Congress has not created.

If --

Chief Justice Warren E. Burger: They surely would have no jurisdiction under Article III, any power under Article III to define state court jurisdiction.

Mr. Cavanaugh: That's right, Your Honor that is absolutely correct.

Chief Justice Warren E. Burger: And when a federal court sits on a state case diversity, it's a surrogate for a state court, is it not?

Mr. Cavanaugh: Yes, Your Honor.

Justice William H. Rehnquist: And Congress could repeal diversity jurisdiction tomorrow.

Justice Potter Stewart: Correct.

Chief Justice Warren E. Burger: They have -- Congress has been urged to do it.

Mr. Cavanaugh: Yes, sir.

Your Honor we would respectfully ask that the Court reverse the lower decisions and permit Dr. Hutchinson to have his day in courts that he may vindicate his reputation.

Justice Byron R. White: Is the newspaper publishing a quote from the congressional record liable to a -- to the victim?

Mr. Cavanaugh: No, Your Honor.

Generally there is a privilege for the media to report the --

So if the media takes the congressional record in which this Golden Fleece Award has been placed and publishes it in full, it is -- it's immune?

Mr. Cavanaugh: It would be, Your Honor.

Justice Byron R. White: Now, the Senator though if he mails it out in his newsletter, the very same thing, a copy of the congressional record, you say he is not immune?

Mr. Cavanaugh: That is correct, Your Honor.

There are two separate immunities.

The Senator's immunity is under the Speech and Debate clause.

The press' immunity is the common law that has been developed.

And the common law has recognized a qualified privilege for members of the media to accurately report what has taken place in Congress or in a court.

But they're two separate immunities.

With the Senator, I think under Doe, if he publicizes the action taken or the speech made wider than is necessary for legitimate legislative needs, he has exceeded the Speech or Debate Clause and there is liability.

Justice Byron R. White: Well the submission is though that newsletters are an ordinary way of legislating.

Mr. Cavanaugh: Your Honor, we would respectfully disagree with that, that a newsletter to a hundred thousand people in Wisconsin and outside of Wisconsin is not within the legitimate legislative needs of Congress.

It is a personal political act.

Thank you very much, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.