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wrongs in doing so. [Opposition to Petition for a Writ of

Certiorari, October 21, 1981, at 3]
Mr. Benford went on to offer three reasons for denying the writ.
First, he said, the court below correctly followed the decisions of
the Supreme Court:

This Court has repeatedly held that dissemination outside
the halls of Congress of material obtained upon investiga-
tion by a legislator, let alone by a legislative aide, is not
privileged conduct immunized by the Speech or Debate
Clause. Hutchinson v. Proxmire, 443 U.S. 111, 132–133
(1979) ("electronic media"); Doe v. McMillan, 412 U.S. 306,
315-317 (1975) (Committee Report). See Dombrowski v.
Eastland, 387 U.S. 82 (1967); Gravel v. United States, 408
U.S. 606 (1972). This Court has also made clear that crimi-
nal conduct by a legislative aide outside the halls of Con-
gress, such as that arguably at issue here, is not within
Speech or Debate Clause protection even if it occurs in a
context related to legislative acts. Dombrowski v. Eastland,
supra, 387 U.S. at 84 (Congressional investigation); Gravel
v. Uniied States, supra, 408 U.S. at 619-622; Doe v. McMil-
lan, 412 U.S. 306, 315 (1973) (dictum); McSurely v. McClel-

lan, supra, 553 F. 2d at 1287. [Id. at 6) Mr. Benford noted in particular that the lower court decision was on a motion for summary judgment and held only that the record at that point did not fully establish that the Congressional defendants' involvement in the taping was a protected legislative act. In view of the principles governing summary dispositions (i.e., "the papers supporting movant's positions are closely scrutinized while the opposing papers are indulgently treated ...", 6 Moore, Fed. Prac. Par. 56.15 (3] (2d Ed. 1981)), the plaintiff argued, the “decision below, far from being novel, rests upon settled doctrine governing summary adjudication.” [Id. at 9]

Turning to the cases cited by the Congressional defendants, Mr. Benford maintained that they were distinguishable:

On the record below, the court of appeals correctly deter-
mined that Eastland v. United States Servicemen's Fund,
421 U.S. 491 (1975), United States v. Brewster, 408 U.S. 501
(1972), and Tenney v. Brandhove, 341 U.S. 367 (1951) did
not compel dismissal. (Compare Pet., 15, 17). In each of
those cases, involving respectively the issuance of a sub-
poena, voting, and conducting a legislative hearing, the
Court determined, based upon the history and purposes of
the privilege, that the acts in question, all unlike the ones
here, done in the halls of the legislature, were legislative
acts. Having reached that conclusion, this Court held in
each instance that these acts and the legislators' motives
for engaging in them could not be the subject of inquiry or
be introduced in evidence. But deceptively arranging a
meeting for the purpose of surreptitiously taping it and
having it broadcast is not even arguably “. . . an integral
part of the deliberative and communicative processes by
which members participate in committee and House pro

ceedings. ." Gravel v. United States, supra, 408 U.S. at

625. (Id. at 9-10] Second, Mr. Benford contended, the opinion below did not conflict with either the McSurely or Helstoski decisions. With respect to the former, the plaintiff asserted that the District of Columbia Circuit had made it clear that illegal or unconstitutional conduct was not privileged under the Speech or Debate Clause, and, like the court of appeals in this case, the McSurely court had remanded for further proceedings to determine whether such conduct had occurred. With respect to Helstoski, Mr. Benford argued that unlike that case, "petitioners have failed factually to show that untainted legislative acts are at issue here, let alone that evidence of them permeate(s) the whole proceeding,' Helstoski, supra" [Id. at 13]

Finally, Mr. Benford maintained that the court below did not decide a novel or important question of Federal law. He pointed out:

The court of appeals did not decide whether the Speech or Debate Clause"... protect[s] ... valid investigative activity through 'field work' by staff ..." as petitioners assume in arguing that this case is certworthy. (Pet. 19; See id., 10-11) (emphasis added). Rather, the court below decided that a public broadcast is not a legislative act (Pet. 3a) and that " . . at this point in the proceedings" (Pet. 3a) petitioners had not shown whether they were engaging in a legislative investigation or in an unprotected effort to televise a distorted picture of respondent's sales methods when they infiltrated respondent's business and staged the meeting in suit. Hence, the record does not present and the court below did not decide whether legislative aides are absolutely protected from civil liability for "acts performed as part of 'field work' ” (Question 2), or whether, had petitioners been engaged in legislative acts, taping and broadcasting by a third party would have deprived Congressional participants in those acts of absolute immu

nity. (Question 1). (Id.) Contending that "no issue of principle" was involved, and that the "Court does not sit to deal with such trivia” as the application of the proper law governing motions for summary judgment, Mr. Benford concluded that the petition for a writ of certiorari should be denied.

On October 22, 1981, the Speaker of the House, Thomas P. O'Neill, filed a motion for leave to file a brief amicus curiae in support of the Congressional defendants' petition for a writ of certiorari.2 In the brief, lodged with the Court simultaneously with the motion, the amici argued that it was "essential to the maintenance of a vigorous and effective legislature that committees of the House be able to pursue legislative investigations free from the threat of civil lawsuits or accountability before the courts based on the performance of the investigative function.” [Brief of the Honorable Thomas P. O'Neill, et al., October 22, 1981, at 1-2] Characterizing

2 Representatives Jim Wright, the Majority Leader of the House, and Robert H. Michel, the Republican Leader, joined in this motion.

the lower court rulings as a threat to "seriously impair and impede the discharge of Congress' legislative authority" (Id. at 2], the amici concluded:

Aside from the reasons adequately set forth in the petition involving the factors for exercise of the Court's jurisdiction under Rule 17, the Court needs to reaffirm that the Congressional investigative function is entitled to Speech or Debate Clause protection, whether it be by subpoena, committee hearings, or the type of field investigation conducted by the Select Committee, which due to the complexities of modern life, are required to ascertain the "complete and accurate" facts which Congress requires as a predicate to "wise” legislation. Moreover, in an age when Congress is called upon with increasing frequency to defend itself in court, the Court should take the opportunity presented by this case to make clear to the lower federal courts that "field work" is an "integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings" with respect to legislation, Gravel v. United States, 408 U.S. 606, 625, (1972) and that failure to remedy the inconsistencies and misapplications of the lower federal courts is "necessary to prevent indirect impairment of such deliberations" Id., in this case and more importantly, in the future. (Id.

at 5-6] Although, on October 28, 1981, Mr. Benford filed an opposition to the Speaker's motion to intervene, the motion was subsequently granted.

On November 16, 1981, the Supreme Court denied, without comment, the Congressional defendants' petition for a writ of certiorari. [102 S. Ct. 612]

Docketed activity resumed in the Federal district court in Maryland on November 27, 1981, when the plaintiff filed a request for the production, inspection and copying of documents in the possession of the Clerk of the House. Thereafter, notices of the plaintiff's intended depositions of defendant Gardner and House Clerk Edmund L. Henshaw, Jr. were filed.

On March 1, 1982, the plaintiff filed a motion for an order directing the Congressional defendants to produce certain documents. The plaintiff stated that although he had previously served a request for discovery and inspection on the defendants, he asserted that none of them had responded to him in writing.

StatusThe case is pending in the U.S. District Court for Maryland.

The complete text of the November 14, 1980 memorandum of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the June 17, 1981 opinion of the circuit court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

Brown v. American Broadcasting Companies, Inc.
Civil Actions Nos. N-81-127 (D. Md.) and 81-0871-A (E.D. Va.)

and No. 82-1192 (4th Cir.) On January 22, 1981, Glenda C. Brown, an independent insurance agent formerly employed by the Bankers Life and Casualty Insurance Company of Chicago, filed suit in the U.S. District Court for the District of Maryland (Civil Action No. N-81-127) against the American Broadcasting Companies, Inc. ("ABC"); Roone Arledge, Av Westin, and Margaret Osmer-McQuade, ABC executives and employees; Herbert S. Denenberg; and Kathleen T. Gardner, David L. Holton, Margaret Dixon, Val J. Halamandaris and Robert Weiner, five present and former employees of the Select Committee on Aging of the U.S. House of Representatives. The five count complaint charged the defendants with conspiracy, defamation, invasion of privacy, interference with a business relationship, and violation of the Federal eavesdropping statute arising from the Select Committee's investigation into abuses in the sale of health insurance to the elderly. The action was based on a November 2, 1978 meeting arranged by the Congressional defendants at Mr. Holton's house at which Ms. Brown presented certain health insurance information to defendant Gardner and her "mother-in-law”, defendant Dixon. Ms. Brown did not know that those involved were Committee employees; nor did she know that the meeting was secretly recorded by ABC 'for subsequent broadcast on its "World News Tonight" programs of November 27 and 29, 1978.

Specifically, Count I of the complaint charged that all the named defendants had entered into a “criminal and civil conspiracy” with “malice and with wanton, reckless and complete indifference to the grave financial and other injury to Brown and her well established good reputation as an Independent Agent for the sale of supplemental health insurance and other insurance." (Complaint and Demand for Jury Trial, January 22, 1981, [17] Count II alleged a violation of the Federal eavesdropping statute (18 U.S.C. $$ 2510 et seq.) in that the defendants had utilized the product of "unlawful electronic surveillance.” [Id., 118] Count III asserted that the defendants had "interfered with Brown's right to pursue a lawful insurance business” by implementing their "scheme" and causing subsequent adverse publicity. (Id., 1 | 19, 20) Count IV averred an invasion of the plaintiff's right of privacy since the "use of Brown's words

and picture ... was without her knowledge or consent ... and by reason of such nationwide publication, Brown was held up tp public ridicule."[Id., 122] Finally, Count V charged that the ABC broadcasts were defamatory, and had been edited to place Ms. Brown in a “false light and to create a false impression.” (Id., 1 29] The complaint sought $150,000 in compensatory damages and $3,000,000 in punitive damages on each count.

(This case set forth substantially the same allegations, against several of the same defendants, as Benford v. American Broadcasting Companies, Inc. which is discussed on page 204 of this report.)

On April 14, 1981, defendant Denenberg moved to have the case dismissed because the court lacked personal jurisdiction over him. Mr. Denenberg, who was then living and working in Pennsylvania, argued that neither Maryland law nor the Due Process Clause of

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the U.S. Constitution would permit the court to assert jurisdiction, and that the nationwide broadcast of the ABC programs did not provide a sufficient basis on which to do so.

On April 23, 1981, the plaintiff filed an opposition to Mr. Denenberg's motion, contending that Maryland law did provide for the assertion of juridiction over him and that such an assertion was not barred on constitutional grounds. According to the plaintiff, there was no constitutional requirement that a trial be held in the forum with the "best" contacts with the defendant, only a require ment that there be "minimum" contacts between the defendant and the forum state.

On June 1, 1981, defendants Arledge, Westin and OsmerMcQuade filed a motion to dismiss the complaint on the grounds that: (1) the court lacked personal jurisdiction over them in that none of the defendants had the requisite minimum contacts with Maryland to satisfy the requirements of the State long-arm statute or of due process (since no specific acts complained of by the plaintiff took place in the state, whereas nearly all the alleged acts took place in Virginia); (2) venue was improper; and (3) service of process was insufficient under both the Federal Rules of Civil Procedure and the Maryland Rules of Procedure.

Also on June 1, 1981, defendant ABC filed a motion to dismiss the complaint on the ground that venue was improper. Because, according of ABC, both diversity of citizenship and a Federal question (i.e., violation of a Federal statute) provided the basis for Federal court jurisdiction in the case and because all the defendants did not reside in any single judicial district, ABC argued that the plaintiff could only bring the action in the judicial district where the "claim arose". (28 U.S.C. $ 1391(b)) In light of the fact that the gravamen of the plaintiff's complaint centered on a conspiracy, the alleged overt acts of which took place in Virginia, ABC insisted that the claim did not arise in Maryland and venue therefore did not lie in the Maryland court.

On June 10, 1981, Chief U.S. District Judge Edward S. Northrop approved a stipulation and order granting the Congressional defendants 60 days after the service of the summons and complaint upon all of them to file a consolidated answer or other responsive pleading

On June 18, 1981, the plaintiff filed answers and memoranda in opposition to the motions to dismiss of the ABC employees and ABC itself. With respect to venue, the plaintiff maintained that jurisdiction was based solely on diversity of citizenship and that, therefore, under 28 U.S.C. $ 1391(a), the case could be brought either where the claim arose or where she resided. Moreover, the plaintiff noted, Maryland was in fact more geographically convenient for the parties and use of Maryland forum would not prejudice any of the parties' substantive rights, particularly in view of the fact that several of the defendants were already within the jurisdiction of the court as party defendants in the Benford case.

With respect to the "minimum contracts” argument of the ABC employees, the plaintiff asserted that because the ABC "World News Tonight” programs were broadcast nationally, including Maryland, such broadcasts constituted purposeful activity within

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