Bose Corporation v. Consumers Union of United States, Inc.

PETITIONER: Bose Corporation
RESPONDENT: Consumers Union of United States, Inc.
LOCATION: Chicago, Illinois

DOCKET NO.: 82-1246
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 466 US 485 (1984)
ARGUED: Nov 08, 1983
DECIDED: Apr 30, 1984

Charles Hieken - Argued the cause for the petitioner
Michael N. Pollet - Argued the cause for the respondent

Facts of the case

Bose Corporation, a loudspeaker manufacturer, brought a product disparagement action against Consumer Union for publishing a negative review of Bose products. Among other comments, Consumer Union's article mistakenly said that Bose loudspeakers caused sounds of individual musical instruments to wander "about the room" when they in fact merely wondered "along the wall[s]." Ruling in favor of Bose, the District Court found that the article's statements were factually wrong and made with "actual malice." On appeal, the Court of Appeals reversed as it found the lower court's ruling to be clearly erroneous. The Supreme Court granted Bose certiorari.


Was Consumer Union's article written with "actual malice," thereby placing it outside the First Amendment's freedom of speech protections?

Media for Bose Corporation v. Consumers Union of United States, Inc.

Audio Transcription for Oral Argument - November 08, 1983 in Bose Corporation v. Consumers Union of United States, Inc.

Warren E. Burger:

We'll hear arguments next in Bose Corporation against Consumers Union.

Mr. Hieken, I think you may proceed when you are ready.

Charles Hieken:

Mr. Chief Justice, and may it please the Court:

This case presents the question whether when constitutional rights are involved appellate judges who did not hear the witnesses testify can conduct a de novo review of the cold printed record of a lengthy bench trial unrestrained by the clearly erroneous requirements of Rule 52(a) or the due process requirements of the Fifth Amendment and reverse the findings of the U.S. District Court judge who heard the witnesses testify.

In 1967 Dr. Amar G. Bose, a professor of electrical engineering at the Massachusetts Institute of Technology, invented the 901 loudspeaker system.

The design of the 901 loudspeaker system was based on 12 years of research at MIT.

In 1968 Bose began marketing the loudspeaker and the 901 loudspeaker met with success in the market place.

The District Court had found that the Bose 901 had received the best reviews which had been given to a loudspeaker product.

Then in 1970 Respondent Consumers Union published an article entitled 24 medium priced loudspeakers based on tests and measurements conducted in its laboratories by its engineers including the use of panelists.

The article also reported on tests conducted of some higher priced loudspeakers under the heading "Some Loudspeakers of Special Interest".

One of these loudspeakers of special interest was the Bose 901 loudspeaker system.

The District Court found that the article as a whole disparaged the 901 loudspeaker system.

In particular the District Court found that one statement was actionable in that it was false and disparaging.

Based on observations of panelists playing recordings through the Bose 901 loudspeaker system, the article reported

"worse individual instruments heard through the Bose system tended to wonder about the room. "

The District Court judge then determined that Bose was a public figure and would be required to meet the actual malice test of New York Times and, therefore, had to prove that CU knew of the falsity of the statement by clear and convincing evidence.

What the District Court judge did was to focus on the knowledge of the author of the statement, A. L. Seligson who was the engineer in charge of conducting the tests and who actually wrote the article.

He was one of the two panelists who participated in the test upon which the false statement was based.

Well, when the article came out Bose complained promptly.

They tried to set up a meeting as soon as possible with CU.

Finally in June of 1970 the meeting was held and Dr. Bose went to this meeting.

He told the people there, look, it is scientifically impossible for a loudspeaker system to make instruments wonder about the room when heard through a loudspeaker.

So he asked for a demonstration there.

They had the loudspeakers there.

It would have taken a half hour to set up the demonstration according to the testimony of Seligson who was at the meeting.

But its association technical director, Monte Florman, refused to put on the demonstration.

Dr. Bose again asked for the demonstration, and again the demonstration was refused.

So Dr. Bose asked Mr. Seligson to please identify the recordings that had been used to observe the strange phenomena of instruments wondering about the room.

Seligson said that he would supply those recordings but he never did and, therefore, as the District Court found at the conclusion of the damage trial Bose could not refute the false statement by demonstrating to customers and dealers that in fact instruments heard through the Bose system did not wander about the room when using the same recordings that Consumers Union had allegedly used during the test.

Well, Bose sought a retraction.