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First Amendment Library:
Michael N. Pollet


An unusual metaphor in a critical review of an unusual loudspeaker system gave rise to product disparagement litigation that presents us with a procedural question of first impression: Does Rule 52(a) of the Federal Rules of Civil Procedure prescribe the standard to be applied by the Court of Appeals in its review of a District Court's determination that a false statement was made with the kind of "actual malice" described in New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964)?In the May 1970 issue of its magazine, Consumer Reports, respondent published a seven-page article evaluating the quality of numerous brands of medium-priced loudspeakers. In a boxed-off section occupying most of two pages, respondent commented on "some loudspeakers of special interest," *488 one of which was the Bose 901 — an admittedly "unique and unconventional" system that had recently been placed on the market by petitioner.[1] After describing the system and some of its virtues, and after noting that a listener "could pinpoint the location of various instruments much more easily with a standard speaker than with the Bose system," respondent's article made the following statements:

"Worse, individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room. For instance, a violin appeared to be 10 feet wide and a piano stretched from wall to wall. With orchestral music, such effects seemed inconsequential. But we think they might become annoying when listening to soloists." Plaintiff's Exhibit 2, p. 274.
After stating opinions concerning the overall sound quality, the article concluded: "We think the Bose system is so unusual that a prospective buyer must listen to it and judge it for himself. We would suggest delaying so big an investment until you were sure the system would please you after the novelty value had worn off." Id., at 275.


431 U.S. 678 (1977) CAREY, GOVERNOR OF NEW YORK, ET AL. v. POPULATION SERVICES INTERNATIONAL ET AL. No. 75-443. Supreme Court of United States. Argued January 10, 1977. Decided June 9, 1977. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. *680 Arlene R. Silverman, Assistant Attorney General of New… Read more