The press, which is ordinarily hyper-vigilant about guarding its own perogatives, pretty much overlooked Footnote Nine when it appeared last year in a Supreme Court opinion.
But many libel lawyers believe that Chief Justice Warren Burger's footnote, sitting innocently at the bottom of Hutchinson vs. Proxmire, has critically altered the law of libel against the press -- and expanded the rights of public figures who feel victimized by media malice.
On its face, Footnote Nine is no more than a warning to judges to think harder before throwing out libel suits brought by public figures without proceeding to trial. "We are constrained," Burger wrote, "to express some doubt about" this procedure, the practice of summary judgment.
But its potential effect, already demonstrated in four or five major cases, is more dramatic, for in the past the press has relied on these quick and clean "summary judgments" to protect them from the forbidding costs of trial and harassing lawsuits.
For libel plaintiffs, said one of their most prominent attorneys, Jonathan Lubell, Footnote Nine is "definitely good news," maybe better news than other more celebrated libel decisions during the same Supreme Court session.
For media lawyers and their partisans, it is a bad omen, the only question being how bad. For them, in the words of Village Voice critic Nat Hentoff, it is "the notorious Footnote Nine."
Critics who believe newspapers and television are irresponsible will tend to see it as a question of accountability -- forcing the press to answer for its misdeeds.
The media, however, tend to see First Amendment rights threatened by the economic chill of harassing lawsuits, which might inhibit a free press.
Just how Footnote Nine got there -- along with the 16 others in the opinion that day -- only the brethren and Chief Justice Burger know. But it was assumed that Burger knew the meaning of the footnote he added, and the punch it might pack.
The story of Footnote Nine begins in April 1975, and it had little to do with newspapers. Sen. William Proxmire (D-Wis.) at that time gave his famous Golden Fleece of the Month Award for federal waste to a research project conducted by scientist Ronald Hutchinson.
Hutchinson felt embarrassed and professionally damaged by the resulting ridicule. He sued Proxmire for defamation.
When a newspaper is sued, its lawyers try immediately to have the case thrown out on a "summary judgment." Proxmire's lawyers did the same.
Under the law, summary judgment is granted when a judge feels there is no reason for a trial, when there are no facts to prove to a jury.
In most cases, it saves defendants the massive costs of a trial when charges are unfounded or frivolous, or when the case is not in a judge's jurisdiction.
In libel cases many judges have considered summary judgments even more essential, and have enshrined them over the years as a free speech protection.
"In the First Amendment areas," the D.C. Court of Appeals said in 1966, "summary procedures are even more essential. For the stakes here, if harassment succeeds, are free debate."
The sources of some bragging "never lost a libel case" was often a tribute to the summary judgment, for in the majority of cases, most judges went along.
In Proxmire's case, the lower court judge also went along, on the grounds that a senator was immune from suits like Hutchinson's. Hutchinson's case was thrown out.
When the Supreme Court got it last year, the issue was not "summary judgments," but Proxmire's immunity. In a 7-to-2 opinion on June 26 in the case of Hutchinson vs. Proxmire, Burger ruled that the Golden Fleece of the Month Award did not entitle Proxmire to immunity. On March 25, 1980, Proxmire settled with Hutchinson out of court for $10,000.
The story was well played. So was a story on an important libel decision the same day: Wolston vs. Readers Digest Association Inc.
But, in the deadline rush, Footnote Nine, one of 16 in the Proxmire opinion, was missed. It seemed obscure enough at the time.
The opinion had noted that the lower court in the Proxmire case believed "summary judgment might well be the rule rather than the exception" in libel cases.
The footnote, acknowledging that summary judgment was not the issue in the Proxmire case, then delivered its blow:
"Considering the nuances of the issues raised here," Burger wrote, "we are constrained to express some doubt about the so called 'rule'" of summary judgment. "The proof of actual malice [necessary in a libel case brought by a public figure] calls a defendant's state of mind into question . . . and does not readily lend itself to summary disposition."
There are scores of "famous footnotes," as courtwatchers call them, in Supreme Court history. "Famous Footnote Four" in a 1936 opinion (U.S. Vs. Carolene) helped establish thinking that would later change the face of constitutional law: the application of stricter standards of review to violations of individual rights than to violations of economic rights.
Only justices know for sure what produces a footnote, separated as it is from the rest of the opinion. Sometimes, it provides a few extra facts. Sometimes, the majority uses it to take on dissenters. Occasionally, it is said, a footnote is a compromise designed to head off a dissent by incorporating someone else's views.
In the case of Hutchinson vs. Proxmire, it appeared used to address questions not raised by the case itself -- summary judgment.
Because footnotes carry the same weight as opinions -- they become law -- lawyers search them out with enthusiasm.
The first publicized sighting of Footnote Nine came in a seminar conducted by libel expert and media friend Floyd Abrams about a month after the opinion.
"Has Footnote Nine sounded the death knell for summary judgment?" asked the Media Law Reporter, a trade publication reporting on Abrams's speech.
"The court," Abrams responded, "knew what it was inferring in the footnote." "You could argue," he said with hope, "that Footnote Nine is meerly speculative -- that the court didn't mean to overrule a whole body of law in one footnote."
As Abrams was speaking, Washington lawyers Michael Nussbaum and Ronald Precup were hurriedly incorporating Footnote Nine in their legal briefs in a long-running libel suit they brought for Ralph Nader against columnist Ralph de Toledano in connection with a de Toledano suggestion -- denied by Nader -- that the consumer crusader had "falsified and distorted" evidence about the Corvair.
Nussbaum and Precup were appealing to the D.C. Appeals Court a lower court summary judgment throwing out Nader's suit.
"We merely drew the attention of the Court of Appeals to Footnote Nine," said Brecup. "There were no arguments on the subject."
The D.C. Court of Appeals was the one that in 1966 called summary judgment essential to the free press. In the Nader case, they reversed the lower court and sent the libel complaint to trial.
In its opinion July 31, the court cited, among other things, Footnote Nine.
De Toledano is now preparing to go to trial. The decision immediately tripled his costs to an estimated $75,000, he says, adding: "I can't afford it. I'm broke. It's wiped me out."
Between then and now, at least four major libel cases have been kept going with Footnote Nine as one of the reasons, including a suit against the TV show "60 Minutes" and a suit against Playboy magazine.
The most explicit use of Footnote Nine, however, came on Aug. 27, when a federal judge in the Southern District of New York allowed the Church of Scientology to press to trial parts of a suit against some of its critics.
The judge said he was "concerned over the damaging effect a frivolous suit could have upon the exercise of the First Amendment.
But "the propriety of granting summary judgment where actual malice has been alleged, however, has been cast into great doubt by the Supreme Court's recent pronouncement" in Footnote Nine.
"Footnote Nine," said Lubell, an attorney representing the church, "is a good thing. It will give plaintiffs a shot at proving their case."