US, 61 L Ed 2d 411, 99 S Ct [No. 78-680] RONALD R. HUTCHINSON, Petitioner, V. WILLIAM PROXMIRE and MORTON SCHWARTZ Argued April 17, 1979. Decided June 26, 1979. Decision: U.S. Senator's press release and newsletters, containing alleged defamation of scientist receiving funds for study from agencies awarded Senator's prize for wasting money, held not protected under Constitution's speech or debate clause, and scientist held not to be "public figure." SUMMARY A research behavioral scientist, who had received funds from federal agencies to investigate the behavior patterns of animals, such as the clenching of their jaws when exposed to aggravating stressful stimuli, brought an action for defamation in the United States District Court for the Western District of Wisconsin against a United States Senator and the Senator's aide arising from the Senator's giving his "Golden Fleece of the Month Award" for egregious wasteful governmental spending to the federal agencies that had funded the scientist's work, the award having been announced by the Senator in a speech prepared with the help of his aide, the text of which was later incorporated in a widely distributed press release, and the award also having been referred to in newsletters sent out by the Senator, in a television interview program on which the Senator appeared, and in telephone calls made by the Senator's aide to the federal agencies which had sponsored the scientist's work. The District Court granted summary judgment to the defendants, ruling, among other things, (1) with respect to the speech or debate clause of the United States Constitution (Art I, § 6), which protects members of Congress from being questioned in any other place with regard to speeches or debates in Congress, that the clause afforded absolute immunity for the press release covering the speech, and (2) with respect to the First Amendment rule requiring a "public figure" suing for defamation to show that the alleged defamation was made with actual malice as a prerequisite to recovery, that the scientist was a "public figure" and that there was no genuine issue of material fact on the issue of the defendants having acted with actual malice (431 F Supp 1311). The United States Court of Appeals for the Seventh Circuit affirmed on appeal, the Court of Appeals dealing expressly not only with the protection of the speech or debate clause for the press release as the District Court had done, but also treating the newsletters, the telephone calls of the Senator's aide, and the Senator's television interview, ruling in such regard that the clause protected the newsletters as well as the press release, and that although the clause did not protect the telephone calls and the television interview, the calls and interview were protected by the First Amendment, since the scientist was a "public figure" and there was no showing on the record of actual malice (579 F2d 1027). On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Burger, Ch. J., joined by White, Marshall, Blackmun, Powell, Rehnquist, and Stevens, JJ., and joined in part (all but holding (2)(b) below) by Steward, J., it was held (1) with respect to issues arising under the speech or debate clause of the Constitution, that (a) the clause did not protect the Senator's transmittal of information by press release and newsletters, since newsletters and press releases, which are primarily means of informing those outside the legislative forum and which represent the views and will of a single member of Congress, are neither essential to the deliberation of Congress nor part of its deliberative process, and are not privileged as part of the informing function of Congress, and (b) with respect to the follow-up telephone calls to the federal agencies and the television interview, that any libelous remarks in such calls or interview would not be protected under the clause, since the clause does not protect the republication of libelous remarks, and (2) with respect to the First Amendment rule regarding a defamation action by a "public figure," that the scientist did not qualify as a "public figure," notwithstanding that local newspapers had reported his successful application for federal funds and that newspapers and wire services had reported his response to the Senator's announcement of the "Golden Fleece" award, since the scientist-whose published writings reached a relatively small category of professionals concerned with research in human behavior, and who did not thrust himself or his views into public controversy to influence others or at any time assume any role of public prominence in the broad question of concern about expenditures, but had gained access to the media to respond to the announcement of the Senator's award-did not have the regular and continuing access to the media that is one of the accouterments of having become a "public figure." STEWART, J., concurring in part and dissenting in part, joined all parts of the court's opinion except that portion in which the court addressed the protection of the speech or debate clause for the follow-up telephone calls and television interviews, on the ground that the question whether a communication by a Congressman or a member of his staff with a federal agency is entitled to speech or debate clause immunity does not depend upon whether the communication is defamatory, and that telephone calls to federal agency officials, being a routine and essential part of the congressional oversight function, are protected by the speech or debate clause. BRENNAN, J., dissenting, expressed the view that public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the speech or debate clause, and thus disagreed with the conclusion that the Senator's newsletters and press release fell outside the protection of the speech or debate clause. HEADNOTES Classified to U.S. Supreme Court Digest, Lawyers' Edition Appeal and Error § 1339.5-Supreme Court reviewFederal court of Appeals' decision-certiorari— matter not decided below 1a, 1b. On certiorari to review a decision of a Federal Court of Appeals regarding a defamation action brought against a United States Senator, the United States Supreme Court will not consider whether the plaintiff in the defamation action-a scientist who received funds from federal agencies for research-is a "public official" for purposes of the rule prohibiting a public official from recovering damages for defamatory falsehoods relating to his official conduct unless he proves the statement was made with actual malice, where the Federal District Court whose decision the Court of Appeals had reviewed had determined that the plaintiff was a "public official," but the Court of Appeals had not decided whether the District Court's conclusion was correct. Constitutional Law § 927.5-First Amendment defamation action—“public official" 2a, 2b. For purposes of the rule, required under the First and Fourteenth Amendments, which prohibits a "public official" from recovering damages for a defamatory falsehood relating his official conduct unless he proves the statement was made with actual malice, not all public employees are included within the category of "public official." United States § 9-Constitution-speech of debate clause-republication of libelous remarks-phone calls-TV and radio interviews 3a, 3b. Since the speech or debate clause of the United States Constitution (Art I § 6), providing that members of Congress shall not be questioned in any other place with regard to speeches or debates in Congress, does not protect the republication of libelous re marks originally made in the legislative chambers, any libelous remarks that republish the remarks of a United States Senator in the Senate and are made by the Senator in television and radio interviews and by the Senator's legislative assistant in follow-up telephone calls to executive agencies are not protected under the clause. (Stewart, J., dissented in part from this holding.) United States 89-Constitution-speech or debate clause-phone calls to federal agencies-libelous comments 4a, 4b. Regardless of whether and to what extent the speech or debate clause of the United States Constitution (Art I, § 6), protecting members of Congress from being questioned in any other place with regard to speeches or debates in Congress, might protect a Congressman's calls to federal agencies seeking information, it does not protect attempts to influence the conduct of executive agencies or libelous comments made during the conversations. (Stewart, J., dissented from this holding.) Appeal and Error § 1692.1; Courts § 95.3-reaching constitutional questions-availability of dispositive nonconstitutional grounds-state-law questionremand from Supreme Court 5. On certiorari to review the decision of a Federal Court of Appeals affirming a Federal district Court's decision in a defamation action brought against a United States Senator-the petition for certiorari raising questions concerning the speech or debate clause of the United States Constitution (Art I, §6), the first Amendment, and the propriety of a District Court's grant of summary judgment embracing both a federal constitutional issue and a state-law issue-the United States Supreme Court will decline to follow its practice of not reaching constitutional questions in a case if a dispositive nonconstitutional ground is available, and thus will not remand to the Court of Appeals to consider the question, considered by the District Court but not by the Court of Appeals below, whether pertinent state law precludes recovery for defamation, but rather, the Supreme Court will consider the issues presented under the speech or debate clause and then, even though its resolution of such issues would ordinarily warrant a |