Press: An Absence of Malice

(2 of 2)

In the Consumer Reports article, an evaluation of several loudspeaker systems, the Bose model 901 was criticized for producing sounds that "tended to wander about the room." Bose Corp. sued in federal court in Boston, claiming product disparagement. After extensive testimony from the engineer responsible for the choice of words, the judge hearing the case ruled that the published statement had been false, since the sound actually wandered "along the wall." He further held that Consumers Union was guilty of malice because the engineer was too intelligent to have made the error inadvertently.

The U.S. Court of Appeals for the First Circuit rejected that reasoning. "Consumers Union was guilty of using imprecise language in the article," the court conceded in throwing out the award, but "this does not support an inference of actual malice." Bose went to the Supreme Court, where its attorneys argued that the appeals court had exceeded its authority by weighing the basic facts of the case—whether or not there was falsehood and malice—which is the responsibility of the trial court. Not so, concluded Stevens for the majority, ruling in effect that First Amendment guarantees of free speech are so important that appellate courts' right of review in such cases should not be limited to just legal issues. Judges, wrote Stevens, "must exercise such review in order to preserve the precious liberties established and ordained by the Constitution." As for the appellate court decision in the Consumers Union case, he wrote: "We agree with the Court of Appeals that the difference between hearing violin sounds move around the room and hearing them wander back and forth fits easily within the breathing space that gives life to the First Amendment."

Consumers Union's victory has cost several hundred thousand dollars in legal fees. Even so, if the Consumers Union decision helps weed out libel actions of little merit, the public interest will have been served. Said Consumers Union Executive Director Rhoda Karpatkin: "Our determination to go to the wall on this case rather than settle it anywhere along the way has been vindicated."

—By Janice Castro. Reported by Anne Constable/Washington and Raji Samghabadi/New York