Amplifying Bose Corp. v. Consumers Union: The Proper Scope of De Novo Appellate Review in Public Person Defamation Cases De Novo Appellate Review in Public Person Defamation Cases

Authors

Tigran W. Eldred, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

3-1989

ISSN

0015-704X

Publisher

Fordham Law School

Language

en-US

Abstract

In 1984, the Supreme Court in Bose Corp. v. Consumers Union of United States, Inc.¹⁰ explicitly affirmed its longstanding practice¹¹ of independently reviewing a trial court's actual malice determination. At issue was whether an appellate court was bound under Federal Rule of Civil Procedure 52(a)¹² to defer to a trial court's finding of actual malice. The Court concluded that Rule 52(a) was inapplicable to the actual malice decision and that "[a]ppellate judges ... must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity."¹³ The Court, in accord with New York Times Co. v. Sullivan, ¹⁴ also stated in dictum that the duty of independent appellate review applied with equal force to jury determinations of actual malice.

Bose, however, left unresolved the scope of de novo review. ¹⁶ The Court was unclear as to which elements ¹⁷ of an actual malice finding are deferentially reviewed and which are reviewed de novo. Federal and state appellate courts disagree: some independently review all elements of the actual malice determination¹⁸ while others restrict de novo review to the legal inference of actual malice.¹⁹ In addition, Bose offered little guidance on how an appellate court is procedurally to exercise its independent review.²⁰ A general verdict does not provide findings of fact from which an appellate court may independently infer the existence of actual malice.²¹ This procedural inadequacy compromises the independent nature of appellate scrutiny mandated by the Bose decision.

This Note attempts to resolve the ambiguities surrounding the constitutional mandate of independent appellate review of an actual malice determination. Part I focuses on the nature of appellate review and discusses the differences between the varying standards of review applicable in civil actions. Part II examines Bose and addresses the appropriate scope of the independent appellate review mandate. Part III discusses the procedural limitations of de novo review and concludes that special verdicts or special interrogatories accompanying general verdicts should be used to facilitate an appellate court's independent review of the actual malice determination.

Recommended Citation

Tigran W. Eldred, Amplifying Bose Corp. v. Consumers Union: The Proper Scope of De Novo Appellate Review in Public Person Defamation Cases De Novo Appellate Review in Public Person Defamation Cases , 57 Fordham Law Review 579 (1989).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4141