bose consumers union argued november decided april respondent published article magazine evaluating quality numerous brands loudspeaker systems including one marketed petitioner petitioner objected statements article system including one effect sound individual musical instruments tended wander room respondent refused publish retraction petitioner filed product disparagement action federal district ruled petitioner public figure therefore pursuant first amendment interpreted new york times sullivan recover petitioner must prove clear convincing evidence respondent made false disparaging statement actual malice entering judgment petitioner found based primarily testimony article author respondent employee article contained false statement fact sound instruments heard speakers tended wander along wall speakers rather room reported respondent author testimony challenged statement intended mean along wall credible statement disparaging basis considered clear convincing proof concluded petitioner sustained burden proving respondent published false statement knowledge false reckless disregard truth falsity appeals reversed holding review actual malice determination limited clearly erroneous standard federal rule civil procedure provides indings fact shall set aside unless clearly erroneous due regard shall given opportunity trial judge credibility witnesses must perform de novo review independently examining record ensure district applied properly governing constitutional rule based review record appeals concluded petitioner sustained burden proof held standard rule prescribe standard review applied reviewing determination actual malice case governed new york times sullivan appellate judges case must exercise independent judgment determine whether record establishes actual malice convincing clarity pp cases raising first amendment issues appellate obligation make independent examination whole record ensure judgment constitute forbidden intrusion field free expression however standard review must faithful rule new york times rule independent review conflict two rules respects apparent real instance rule forbid examination entire record constitutionally based rule independent review permits giving due regard trial judge opportunity judge witnesses credibility provided rule pp rule applies findings fact inhibit appellate power correct errors law including may infect mixed finding law fact consideration possible application rule distinction questions law fact issue actual malice three characteristics new york times rule relevant heritage rule fact content given meaning adjudication fact constitutional values protected make imperative judges make sure correctly applied pp requirement independent appellate review enunciated new york times reflects deeply held conviction judges particularly members must exercise review order preserve precious constitutional liberties new york times question whether evidence record defamation case convincing clarity required strip utterance first amendment protection ultimately question federal constitutional law pp appeals correctly concluded significant difference proof actual malice mere proof falsity requisite additional proof lacking case testimony article author constitute clear convincing evidence actual malice fact attempted rationalize mistake article use phrase room establish realized inaccuracy time publication choice language used though reflecting misconception place speech beyond outer limits first amendment broad protective umbrella even accepting district purely factual findings nevertheless matter law record contain clear convincing evidence respondent employee prepared article knowledge contained false statement reckless disregard truth pp affirmed charles hieken argued cause petitioner briefs blair perry michael pollet argued cause respondent brief marshall beil carol schrager briefs amici curiae urging affirmance filed american civil liberties union et al james mchugh charles sims john reinstein new york times et al floyd abrams dean ringel devereux chatillon robert sack alice neff lucan corydon dunham david otis fuller terry maguire richard schmidt bruce rich peter gould justice stevens delivered opinion unusual metaphor critical review unusual loudspeaker system gave rise product disparagement litigation presents us procedural question first impression rule federal rules civil procedure prescribe standard applied appeals review district determination false statement made kind actual malice described new york times sullivan may issue magazine consumer reports respondent published article evaluating quality numerous brands loudspeakers section occupying two pages respondent commented loudspeakers special interest one bose admittedly unique unconventional system recently placed market petitioner describing system virtues noting listener pinpoint location various instruments much easily standard speaker bose system respondent article made following statements worse individual instruments heard bose system seemed grow gigantic proportions tended wander room instance violin appeared feet wide piano stretched wall wall orchestral music effects seemed inconsequential think might become annoying listening soloists plaintiff exhibit petitioner took exception numerous statements made article respondent refused publish retraction petitioner commenced product disparagement action district district massachusetts protracted period pretrial discovery district denied respondent motion summary judgment conducted bench trial issue liability lengthy detailed opinion merits case supp district ruled respondent favor issues significantly district ruled petitioner public figure term defined gertz robert welch purposes case therefore first amendment interpreted new york times sullivan precludes recovery product disparagement action unless petitioner proved clear convincing evidence respondent made false disparaging statement actual malice three critical points however district agreed petitioner first found one sentence article contained false statement fact concerning tendency instruments wander based primarily testimony author article district found instruments heard speakers tended wander along wall rather room reported respondent second found statement disparaging third concluded basis proof considers clear convincing plaintiff sustained burden proving defendant published false statement material fact knowledge false reckless disregard truth falsity judgment entered petitioner product disparagement claim appeals first circuit reversed accepted finding comment wandering instruments disparaging assumed without deciding statement one fact rather opinion false observing stemming least part uncertain nature statement one fact opinion difficult determine confidence whether true false noting petitioner contest conclusion public figure applicability new york times standard appeals held review actual malice determination limited standard rule instead stated must perform de novo review independently examining record ensure district applied properly governing constitutional law plaintiff indeed satisfied burden proof added however position consider credibility witnesses must leave questions demeanor trier fact ibid based review record appeals concluded unable find clear convincing evidence cu published statement individual instruments tended wander room knowledge false reckless disregard whether false evidence presented merely shows words article may described precisely two panelists heard listening test cu guilty using imprecise language article perhaps resulting attempt produce readable article mass audience certainly support inference actual malice place issue focus necessary state somewhat greater detail evidence actual malice issue basis district determination evidence actual malice trial petitioner endeavored prove key sentence embodied three distinct falsehoods instruments heard bose system size seemed grossly enlarged seemed move movement room although great deal evidence concerned first two points district found neither false concluded average reader understand reference enlarged instruments intended describe size area sound seemed emanate rather perception actual size musical instruments played rejecting absurd notion readers interpret figurative language literally referring testimony explaining certain degree movement location apparent sound source expected stereo loudspeaker systems district recognized statement accurate insofar reported instruments tended wander thus neither reference apparent size instruments reference fact instruments appeared move false statement instruments tended wander room found false listeners test actually perceived apparent movement back forth along wall front two speakers apparent movement room rather back forth different average listener learned expect district concluded location movement apparent sound source critical reader fact movement occurred ibid evidence concerning respondent knowledge falsity focused arnold seligson engineer employed respondent seligson supervised test bose prepared written report upon published article based initial report contained sentence instruments placed precision appeared suffer giganticism tendency wander around room violin seemed wide piano stretched wall wall etc since editorial revision around room room change meaning false statement since evidence editors aware inaccuracy original report determination rests entirely evaluation seligson state mind wrote initial report checked article report seligson deposed trial testified almost six days trial one point direct examination responded length technical testimony bose explaining scientific explanation apparent movement source sound back forth across wall app trial judge questioned seligson questioning revealed movement seligson heard tests confined wall counsel request drew rough sketch movement sound source intended describe words tended wander room sketch revealed back forth movement along wall speakers asked seligson use words tended wander room describe drawn board well know made pick particular choice words satisfied said across think instead feeling objected either event word meant drew board testified deposition district reasons finding falsity description location movement wandering instruments provided background ruling actual malice concluded reasonable reader understand sentence describing lateral movement along wall average reader interpret word according plain ordinary meaning district unequivocally rejected seligson testimony respondent argument sentence read context understood refer lateral movement similar reasoning district found seligson explanation intended meaning sentence incredible district reasoned thus according seligson words used article room mean something different populace general seligson believed time publication article interpreted still interprets today words room mean along wall careful consideration seligson testimony demeanor trial finds seligson testimony point credible seligson intelligent person whose knowledge english language questioned simply impossible believe interprets commonplace word mean anything plain ordinary meaning based finding seligson testimony contrary credible finds time article publication seligson knew words individual instruments tended wander room accurately describe effects lefkow heard special listening test consequently concludes basis proof considers clear convincing plaintiff sustained burden proving defendant published false statement material fact knowledge false reckless disregard truth falsity ii case two respected rules law point opposite directions petitioner correctly reminds us rule provides findings fact shall set aside unless clearly erroneous due regard shall given opportunity trial judge credibility witnesses hand respondent correctly reminds us cases raising first amendment issues repeatedly held appellate obligation make independent examination whole record order make sure judgment constitute forbidden intrusion field free expression new york times sullivan see also naacp claiborne hardware greenbelt cooperative publishing assn bresler amant thompson although statements made frequently cases rule apply arose state courts respondent argues constitutional principle equally applicable federal litigation quite agree surely pervert concept federalism lay claim broader power review judgments exercises reviewing judgments intermediate federal courts standard review must faithful rule rule independent review applied new york times sullivan conflict two rules respects apparent real new york times rule emphasizes need appellate make independent examination entire record rule never forbids examination indeed seminal decision rule expressly contemplated review entire record stating finding clearly erroneous although evidence support reviewing entire evidence left definite firm conviction mistake committed gypsum supra emphasis supplied moreover rule commands due regard shall given trial judge opportunity observe demeanor witnesses constitutionally based rule independent review permits opportunity given due indeed previously observed appeals case expressly declined district judge credibility witnesses requirement special deference given trial judge credibility determinations recognition broader proposition presumption correctness attaches factual findings stronger cases others clearly erroneous standard applies findings based documentary evidence based entirely oral testimony see gypsum supra presumption lesser force former situation latter similarly standard change trial becomes longer complex likelihood appellate rely presumption tends increase trial judges lived controversy weeks months instead hours one might therefore assume cases appellate courts duty exercise independent review merely presumption trial ruling correct particularly weak difference two rules however much mere matter degree rule independent review assigns judges constitutional responsibility delegated trier fact whether factfinding function performed particular case jury trial judge rule applies findings fact including described ultimate facts may determine outcome litigation see swint rule inhibit appellate power correct errors law including may infect mixed finding law fact finding fact predicated misunderstanding governing rule law see ibid inwood laboratories ives laboratories rule furnish particular guidance respect distinguishing law fact pullman standard swint characterized vexing nature distinction however diminish importance importance principles require distinction drawn certain cases consideration possible application distinction issue actual malice least three characteristics rule enunciated new york times case relevant first heritage rule assigns especially broad role judge applying specific factual situations second content rule revealed simply literal text rather given meaning evolutionary process adjudication though source rule found constitution nevertheless largely rule law finally constitutional values protected rule make imperative judges cases judges make sure correctly applied words aspects rule appropriate federal rule prohibits public official recovering damages defamatory falsehood unless proves false statement made actual malice knowledge false reckless disregard whether false new york times counterpart rules previously adopted number state courts extensively reviewed scholars generations earlier defamation cases turn kinship english cases considering kind motivation must proved support commonlaw action deceit long recognized formulation rule kind allows judge maximum power passing judgment particular case moreover exercise power process rule evolves integrity maintained explained meaning concepts adequately expressed simple statement considerations fall short proving amant reckless disregard accuracy statements thompson reckless disregard true fully encompassed one infallible definition inevitably outer limits marked adjudication true many legal standards judging concrete cases whether standard provided constitution statutes case law cases however furnished meaningful guidance definition reckless publication amant thompson first amendment presupposes freedom speak one mind aspect individual liberty thus good unto also essential common quest truth vitality society whole constitution thing false idea however pernicious opinion may seem depend correction conscience judges juries competition ideas gertz robert welch omitted nevertheless categories communication certain special utterances majestic protection first amendment extend essential part exposition ideas slight social value step truth benefit may derived clearly outweighed social interest order morality chaplinsky new hampshire libelous speech held constitute one category see beauharnais illinois others held outside scope freedom speech fighting words chaplinsky new hampshire supra incitement riot brandenburg ohio obscenity roth child pornography new york ferber areas limits unprotected category well unprotected character particular communications determined judicial evaluation special facts deemed constitutional significance cases regularly conducted independent review record sure speech question actually falls within unprotected category confine perimeters unprotected category within acceptably narrow limits effort ensure protected expression inhibited providing triers fact general description type communication whose content unworthy protection served sufficiently narrow category served eliminate danger decisions triers fact may inhibit expression protected ideas principle viewpoint neutrality underlies first amendment see police department chicago mosley also imposes special responsibility judges whenever claimed particular communication unprotected see generally terminiello chicago exercised independent judgment question whether particular remarks inherently inflammatory come within small class fighting words likely provoke average person retaliation thereby cause breach peace street new york analogous question whether advocacy directed inciting producing imminent lawless action hess indiana per curiam compare rehnquist dissenting simple explanation result case majority interpreted evidence differently courts edwards south carolina recognizing duty make independent examination whole record pennekamp florida compelled examine statements issue see whether carry threat clear present danger whether character principles first amendment protect similarly although miller california questions appeals prurient interest patently offensive community standard obscenity test essentially questions fact expressly recognized ultimate power appellate courts conduct independent review constitutional claims necessary therefore rejected contention jury finding obscenity vel non insulated review long jury properly instructed evidence support findings holding substantive constitutional limitations govern jenkins georgia based independent examination evidence exhibition motion picture held film question matter constitutional law found depict sexual conduct patently offensive way recent opinion identifying new category unprotected expression child pornography expressly anticipated independent examination allegedly unprotected material may necessary assure judgment constitute forbidden intrusion field free expression new york ferber quoting new york times sullivan hence new york times sullivan announcing constitutional requirement finding actual malice certain types defamation actions natural conduct independent review evidence dispositive constitutional issue explained action follows duty limited elaboration constitutional principles must also proper cases review evidence make certain principles constitutionally applied case particularly since question one alleged trespass across line speech unconditionally guaranteed speech may legitimately regulated speiser randall cases line must drawn rule examine statements issue circumstances made see whether character principles first amendment adopted due process clause fourteenth amendment protect pennekamp florida see also one olesen sunshine book summerfield must make independent examination whole record edwards south carolina assure judgment constitute forbidden instrusion field free expression omitted monitor patriot roy held matter constitutional law jury allowed determine relevance defamatory statement plaintiff status public figure explained jury application standard unlikely neutral respect content speech holds real danger becoming instrument suppression vehement caustic sometimes unpleasantly sharp attacks new york times supra must protected guarantees first fourteenth amendments prevail ibid requirement independent appellate review reiterated new york times sullivan rule federal constitutional law emerged exigency deciding concrete cases law purest form heritage reflects deeply held conviction judges particularly members must exercise review order preserve precious liberties established ordained constitution question whether evidence record defamation case convincing clarity required strip utterance first amendment protection merely question trier fact judges expositors constitution must independently decide whether evidence record sufficient cross constitutional threshold bars entry judgment supported clear convincing proof actual malice iii appeals correct conclusions significant difference proof actual malice mere proof falsity additional proof lacking case factual portion district opinion may fairly read including following findings seligson actual perception apparent movement sound source time bose tested along wall rather room even words disputed sentence read context entire article neither average reader intelligent person interpret word mean across seligson intelligent person words room meaning seligson populace general although otherwise credible witness seligson testimony know made pick particular choice words word meant drawn board credible testimony witness believed trier fact may simply disregard normally discredited testimony considered sufficient basis drawing contrary conclusion see moore chesapeake ohio case trial judge found impossible believe seligson continued maintain word meant across seligson testimony rebut inference actual malice record otherwise supports equally clear constitute clear convincing evidence actual malice seligson displayed capacity rationalization made mistake confronted refused admit steadfastly attempted maintain mistake made inaccurate accurate attempt failed fact made attempt establish realized inaccuracy time publication aside seligson vain attempt defend statement precise description nature sound movement evidence actual malice district relied fact statement inaccurate description seligson actually perceived seligson course insisted know heard trial took word reasoned since know heard knew meaning language employed accurately reflect heard must realized statement inaccurate time wrote analysis kind may adequate alleged libel purports eyewitness direct account events speak time pape see generally santissima trinidad wheat however adoption language chosen one number possible rational interpretations event bristled ambiguities descriptive challenges writer time pape supra choice language though reflecting misconception place speech beyond outer limits first amendment broad protective umbrella district analysis individual using malapropism might liable simply intelligent speaker know term inaccurate context even though realize folly time statement case represents sort inaccuracy commonplace forum robust debate new york times rule applies realistically error inevitable difficulties separating fact fiction convinced new york times butts gertz similar cases limit liability instances degree culpability present order eliminate risk undue suppression truthful material herbert lando rroneous statement inevitable free debate must protected freedoms expression breathing space need survive new york times sullivan citation omitted appeals entertained doubt concerning ruling new york times rule applied claim product disparagement based critical review loudspeaker system express view ruling accepted purposes deciding case agree appeals difference hearing violin sounds move around room hearing wander back forth fits easily within breathing space gives life first amendment may accept purely factual findings district nevertheless hold matter law record contain clear convincing evidence seligson employer prepared loudspeaker article knowledge contained false statement reckless disregard truth may well case finding district question set aside standard review share concern appeals statements issue tread line fact opinion moreover analysis central legal question us may seem place case involving dispute sound quality loudspeaker though question presented reaches us somewhat peculiar wavelength reaffirm principle independent appellate review applied uncounted times hold standard rule federal rules civil procedure prescribe standard review applied reviewing determination actual malice case governed new york times sullivan appellate judges case must exercise independent judgment determine whether record establishes actual malice convincing clarity judgment appeals affirmed ordered justice white dissenting although believe reckless disregard component new york times malice standard question historical fact agree justice rehnquist component surely district found defamatory statement written actual knowledge falsity appeals thus erred basing disagreement district de novo review record majority today equally error remand appeals may perform task proper standard footnotes federal jurisdiction product disparagement claim based diversity citizenship law new york massachusetts viewed parties accord area governed product disparagement claim district held applicable state law plaintiff burden proving preponderance evidence statements issue false disparaging also burden establishing actual damages order recover addition product disparagement claim petitioner alleged claims unfair competition violation lanham act district held neither claims proved petitioner attack article included contentions misleading referring two persons panel creating impression evaluations loudspeaker quality objective rather subjective judgments district agreed petitioner points ruled entitle petitioner relief petitioner also argued overall sound quality bose rated higher reviewers district rejected claim observing testimony including bose revealed evaluation speaker sound quality accuracy subjective matter hence final analysis nothing opinion proved true false also found petitioner failed prove false statement recommending use amplifier watts per channel achieve deepest bass response speakers observing parties conceded power requirements speakers readily objectively ascertainable also found petitioner failed prove person primarily responsible article biased reason financial interest eventually marketing speaker obtained patent hand district rejected respondent argument actual malice respondent motive distort facts district identified two possible reasons disparagement first scant proof respondent built bias higher priced products second suggestion testimony respondent resorted sarcasm boost circulation district however rely upon possible motivations affirmative proof actual malice see ruling respondent motion summary judgment district held question whether respondent panelists actually heard instruments grow gigantic proportions wander room question fact opinion support motion summary judgment respondent submitted affidavit one panelists arnold seligson stating article accurately reported heard tests know heard petitioner submitted affidavit bose designed bose stating substance phenomenon widened wandering instruments scientific impossibility ibid although one point district seemed suggest instruments sound wander relying review another publication stating instrument prescribed space stays emphasis supplied district citation omitted district previously stated degree movement sound loudspeakers common systems discussion liability indicates respondent truthfully reported sound tended wander along wall least seemed wander along wall entirely clear district made finding fact regarding sound tended wander indeed entirely clear found fact sound wander room rather discussed extensively infra finding seemed panel conducting test subjectively perceive sound wandering room rather perceived wandering across room sound wander reality appear focus decision though conflicting testimony concerning whether scientifically impossible sound wander room seem wander room see ruling motion summary judgment district assumed without deciding standard applicable case expressly recognized falsity alone prove statements made actual malice observing additional facts required must clear convincing evidence question holding material issue fact label use advisedly actual malice district recounted petitioner argument panelists must known statements concerning enlarged wandering instruments false false ibid ccording plaintiff panel heard phenomena statement hear false plaintiff contends seligson member listening panel must known statement false also noted petitioner evidence concerning seligson patent speaker system indulging reasonable inferences favorable plaintiff concluded genuine issue material fact existed question actual malice separate trial different judge issue damages resulted finding false disparaging statement resulted sales loss units produced net profit causing petitioner damages petitioner also awarded expenses incurred attempt mitigate damages judgment total amount plus interest entered district supp judge campbell concurred specially emphasize fact appeals passed merits district holding petitioner public figure course also pass question observe respondent publication consumer reports plainly qualify media defendant action conceivable definition term hence answer question presented dun bradstreet greenmoss builders cert granted affect case naturally express view time question therefore plaintiff present evidence contradict defendant evidence tended show listening bose listener perceive apparent sound source large thus concludes plaintiff sustained burden proof preponderance evidence defendant statement instruments seemed grow gigantic proportions false thus respondent prevailed issues fact identified summary judgment stage proceedings see supra following questions asked answered explain opinion lateral movement instrument yes think statement article says moved room came forward well example given movement room refers widened violin widened piano meant imply widening movement across rear wall two speakers tended wander room say side side walls alone says believe next sentence meant explain says instance example effect word means around honor meant mean rear wall speakers says though understand app additional questions asked answered accurate judgment say instruments tended move back forth two speakers think taken context way described remember effect carefully described sentences later hard mistake anything article think conveys reader idea instruments stayed one end room come wander like wandered drawn orange line yes think reader get reading violin appeared ten feet wide piano stretched wall wall hint depth whatever entering room district buttressed conclusion pointing petitioner received complaints purchasers wandering instruments reviews bose referred wandering instruments contrary review quoted district commented instrument prescribed space stays see supra evidence however probative falsity ascribing movement sound source falsity describing location movement pointed district found article truthful insofar stated apparent movement occurred district expressly rejected petitioner exhaustive attempt prove seligson continuing interest marketing speaker therefore deliberately distorted review indeed herbert lando referred passing actual malice ultimate fact conclusiveness finding fact depends nature materials finding based finding even subsidiary fact may less difficult process varying according simplicity subtlety type fact controversy finding ultimate facts clearly implies application standards law finding fact even made two courts may go beyond determination set aside though labeled finding fact may involve basis judgment fallible evidence made thus conclusion may appropriately drawn whole mass evidence always ascertainment kind fact precludes consideration see beyer lefevre particularly decision review escape broadly social judgments judgments lying close opinion regarding whole nature government duties immunities citizenship baumgartner see generally swint finding fact cases inseparable principles deduced point reasoning fact found crosses line application ordinary principles logic common experience ordinarily entrusted finder fact realm legal rule upon reviewing must exercise independent judgment line drawn varies according nature substantive law issue regarding certain largely factual questions areas law stakes terms impact future cases future conduct great entrust finally judgment trier fact representative list cases comments found opinion new york times characterized honest liar formula fraud proved shewn false representation made knowingly without belief truth recklessly careless whether true false derry peek app cas probably formula less definite seems limitations perhaps largely matter language color english formulas allows judge maximum power passing judgment particular case restricts jury neatly done function evaluating evidence judgment formula turned either way equal facility close case green judge jury chapter work professor green cited herein also published rev must kept mind judge another distinct function dealing elements though frequently called play utmost importance involves determination scope general formula one elements comes play marginal cases requires judge say sort conduct considered condemned rules employed cases function formulas rules evolved integrity maintained availability determined green supra commercial speech regarded unprotected first amendment see valentine chrestensen virginia pharmacy board virginia citizens consumer council rejected broad conclusion though false misleading commercial speech deemed represent category unprotected speech see rationale essentially involved libel area constitutional value false statements fact gertz robert welch moreover since commercial advertiser usually seeks disseminate information specific product service provides presumably knows anyone else virginia pharmacy board virginia citizens consumer council minimal danger governmental regulation false misleading price product advertising chill accurate nondeceptive commercial expression stewart concurring statements made public employees employment capacity touching matters public concern may considered unprotected sense sanctions may imposed basis statements see connick myers givhan western line consolidated school district pickering board education risk broadening category unprotected speech may explain one member preferred candid statement know see concept judicial function premature attempt fashion encompassing shorthand description obscenity see jacobellis ohio stewart concurring see also fiske kansas explaining review findings fact state federal right denied basis fact without evidence support conclusion law federal right finding fact intermingled require analysis facts gitlow new york schaefer brandeis dissenting see generally broadrick oklahoma explaining edwards south carolina cox louisiana cantwell connecticut support statement cited justice harlan opinion roth observed seems assume obscenity peculiar genus speech press distinct recognizable classifiable poison ivy among plants basis constitutional question us simply becomes says whether obscenity abstraction protected first fourteenth amendments question whether particular book may suppressed becomes mere matter classification fact entrusted factfinder insulated independent constitutional judgment surely problem solved generalized fashion every communication individuality value suppression particular writing tangible form expression therefore individual matter nature things every suppression raises individual constitutional problem reviewing must determine whether attacked expression suppress ble within constitutional standards since standards readily lend generalized definitions constitutional problem last analysis becomes one particularized judgments appellate courts must make think reviewing courts escape responsibility saying trier facts jury judge labeled questioned matter obscene obscenity suppressed question whether particular work character involves really issue fact question constitutional judgment sensitive delicate kind cf hamling holding jury determination obscenity supported evidence consistent applicable constitutional standard reviewing petitioner sufficiency evidence arguments regarding issues test glasser see generally jacobellis ohio opinion brennan de novo review required obscenity cases warren dissenting intermediate standard review obligation test challenged judgments guarantees first fourteenth amendments avoid making independent constitutional judgment facts case jacobellis ohio opinion brennan simple fact first amendment questions constitutional fact compel de novo review see edwards south carolina blackburn alabama rosenbloom metromedia opinion brennan joined burger blackmun see generally adams tanner brandeis dissenting ex facto jus oritur ancient rule must prevail order may system living law new york times sullivan reviewing judgment entered jury verdict respondent contended seventh amendment precluded independent review recognizing seventh amendment ban reexamination facts tried jury applied case coming state courts chicago chicago justices murray wall see generally parsons bedford pet found argument without merit relying statement fiske kansas review findings fact appropriate conclusion law federal right finding fact intermingled make necessary order pass upon federal question analyze facts intermingling law fact determination greater state federal jury trials federal bench trials see supra infra course limitation appellate review factual determinations rule stringent limitation federal appellate review jury factual determinations seventh amendment commands fact tried jury shall otherwise according rules common law justice harlan lone dissenter time pape observed merely refound facts case agreed free examine evidentiary bases upon decision rested argued power need exercised every case rather independent review evidence limited cases certain unusual factors exist allegations harassment similar concern need preserve right free speech suppression tyrannous majorities abuse irresponsible fanatical minorities schaefer dissenting opinion identified justice brandeis explaining special risk allowing jurors evaluate character clear present danger presented arguably seditious speech burden proving actual malice requires plaintiff demonstrate clear convincing evidence defendant realized statement false subjectively entertained serious doubt truth statement see new york times sullivan see also gertz robert welch amant thompson see generally prosser law torts ed course many findings fact defamation case irrelevant constitutional standard new york times sullivan standard rule fully applicable indeed actually necessary review entire record fulfill function independent appellate review question rather portions record relate determination must independently assessed independent review function equivalent de novo review ultimate judgment reviewing makes original appraisal evidence decide whether believes judgment entered plaintiff reviewing determines actual malice established convincing clarity judgment trial may reversed ground error law clearly erroneous finding fact although appeals stated must perform de novo review plain appeals overturn factual finding rule applicable instead engaged independent assessment evidence germane determination justice rehnquist justice joins dissenting one irony case wandering instruments subject matter makes sound like candidate inclusion adventures sherlock holmes casebook constitutional law ironic first place constitutional principle originated new york times sullivan need freedom criticize conduct public officials applied magazine false statements commercial loudspeaker system also ironic interest protecting first amendment rejects clearly erroneous standard review mandated federal rule civil procedure favor de novo standard review constitutional facts surrounding actual malice determination facts dispositive determination actual knowledge subjective reckless disregard truth involve findings mens rea author findings appellate courts simply make context including first amendment context unless actual malice means something different definition given term years ago new york times think constitutional requirement actual malice properly bring play standard factual review clearly erroneous standard case district concluded found clear convincing evidence respondent engineer arnold seligson written defamatory statement bose product actual knowledge false reached conclusion expressly relying determination credibility seligson testimony supp appeal issue whether district properly understood findings legally sufficient establish actual malice issue necessary quantum proof proper allocation burden proof actual malice issue appeal thus propriety district factual conclusion bose actually proved actual malice case yet appeals never rebutted district conclusion seligson actual knowledge printed false instead concluded de novo review seligson language merely imprecise support inference actual malice unclear determination appeals mens rea conclusion necessary finding actual malice district finding actual knowledge approving appeals de novo judgment actual malice question factual detail rehearsal testimony majority opinion adorned never quite comes grips factual finding must focus one point told statement case represents sort inaccuracy commonplace forum robust debate new york times rule applies ante suggesting disparaging statement perhaps even false rate false enough one paragraph later told matter law record contain clear convincing evidence seligson employer prepared loudspeaker article knowledge contained false statement reckless disregard truth ante remarks question presented reaches us somewhat peculiar wavelength ante scarcely reason transmitting answer equally peculiar wavelength view problem results attempt treat contexts always pure question fact something fact constitutional fact correctly points independent appellate review facts underlying constitutional claims sanctioned previous decisions conclusion law federal right finding fact intermingled make necessary order pass upon federal question analyze facts fiske kansas contexts always felt perfectly ease leaving determinations actual knowledge recklessness determinations involved triers fact deferential appellate review example criminal cases burden proving facts even greater clear convincing standard applicable new york times presumably doctrine independent review facts exists appellate may inexorably place thumb scales favor party claiming constitutional right perceived shortcomings trier fact way bias factor may compensated shortcoming appellate inability make determination mandates today de novo determination state mind particular author particular time although well may cases actual malice determination made basis objectively reviewable facts record seems often made basis evaluation credibility testimony author defamatory statement loss see appellate courts even begin make determinations event surely determinations best left trial judge course true recognizes particular speech falls close line separating lawful unlawful possibility mistaken factfinding inherent litigation create danger legitimate utterance penalized speiser randall new york times rule adequately addresses need shield protected speech risk erroneous factfinding placing burden proving actual malice party seeking penalize expression agree justice harlan commenting inappropriateness de novo fact review actual malice determination concluded discern first amendment considerations led us restrict powers regulate defamation public officials additional interest served rule new york times supra substantially promoted utilizing appellate ultimate arbiter factual disputes libel cases unusual factors allegations harassment existence jury verdict resting erroneous instructions present time pape dissenting opinion continue adhere view expressed swint rule make exceptions purport exclude certain categories factual findings obligation appeals accept district findings unless clearly erroneous reason depart rule therefore reverse remand case appeals may apply clearly erroneous standard review factual findings district attempting justify independent appellate review actual malice determination majority draws analogy cases attempted define categories unprotected speech obscenity child pornography cases new york ferber miller california roth cases involving words inciting anger violence hess indiana per curiam street new york chaplinsky new hampshire mind however cases clearly involve kind mixed questions fact law call de novo appellate review new york times actual malice cases simply involve questions pure historical fact example respect obscenity cases appellate courts perhaps competent triers fact make determinations whether material appeals prurient interests whether depicts sexual conduct patently offensive way whether material lacks serious artistic value miller california supra cases necessary determinations equally capable de novo appellate review whether words likely provoke average person retaliation street new york supra emphasis added quoting chaplinsky new hampshire supra whether rational inference import language likely produce imminent disorder hess indiana supra none cases requires kind pure historical factual determination new york times cases require determination actual subjective state mind particular person particular time correctly points new york times sullivan conducted independent appellate review facts underlying actual malice determination notable however new york times came state jury trial thus presented strongest case independent factfinding factfinding process engaged jury rendering general verdict much less evident naked eye thus suspect factfinding process engaged trial judge makes written findings justifying independent review facts found jury easier absence distinct yes general jury verdict particular factual inquiry extremely narrow latitude allowed appellate courts review facts found jury common law thus surprising early cases espousing notion independent appellate review constitutional facts fiske kansas new york times arisen context jury verdicts perhaps reflexively applied quite different contexts without analysis see time pape involving appellate review district directed verdict