At the same time, though, I also wonder whether it might be time to scrap the rule requiring a majority vote for rehearing en banc. After all, the U.S. Supreme Court only requires four justices out of nine to vote in favor of granting a petition for certiorari. Rehearing en banc, like certiorari, is a discretionary review process. The idea behind the Supreme Court's "Rule of Four" is that a substantial minority which questions the pervious decision should have the right to place cases on the Court's calendar with the intent of persuading at least one more justice to join them. An absolute rule of five would perclude much of the useful appellate review now provided by the Supreme Court. The same could be said of rehearing en banc petitions. If eleven judges in the Ninth Circuit thought the case was worth another look, chances are it was. You would rarely (if ever) get that many judges on the record in support of a wholly meritless appeal.
Turning to the case denied rehearing, Suzuki Motor Corporation v. Consumers Union, the eleven-judge dissent produced an opinion authored by Circuit Judge Alex Kozinski, whom CAC lauded last week for his excellent dissent from rehearing en banc in support of the Second Amendment. Kozinski goes 2-for-2 with today's dissent, which correctly seeks to dismiss a meritless—and potentially dangerous—product disparagement lawsuit brought against Consumer Reports by an unhappy auto manufacturer. The trial court granted summary judgment to Consumer Reports, finding no evidence of "actual malice," a key element to sustain a product disparagement claim. A 9th Circuit panel reversed the trial court last June and ordered the case tried. Judge Kozinski's Monday opinion dissents from the panel's decision:
KOZINSKI, Circuit Judge, with whom PREGERSON, REINHARDT, T.G. NELSON, HAWKINS, THOMAS, McKEOWN, WARDLAW, W. FLETCHER, FISHER and BERZON, Circuit Judges, join, dissenting from denial of rehearing en banc:
For over half a century, Consumers Union has been testing and rating consumer products and publishing the results in its magazine, Consumer Reports. A significant portion of the American public relies on CU’s ratings on a regular basis, and almost everyone consults Consumer Reports now and then before making a significant purchase—whether a sound system, a dishwasher or a car. What makes CU’s ratings particularly useful is the thorough explanation of the testing procedures employed, which lets consumers judge whether the ratings fairly represent the product.
The Suzuki Samurai article, the subject of this lawsuit, is no exception. Running some 6500 words, it tells readers precisely how CU came to conclude that “The Suzuki rolls over too easily,” starting with an incident during the vehicle’s break-in period where the Samurai “flopped over on its side” during a low-speed maneuver. The explanation is not written for morons; like other CU reviews, it is geared to an intelligent, informed consumer. Yet the careful reader will not fail to understand the central facts that undergird Suzuki’s claim in this lawsuit, namely, that the Samurai did well on CU’s standard course, that CU then modified the course to make it more challenging and, as a result, the Samurai did far worse than its competitors.
I find it incomprehensible that a review truthfully disclosing all this information could be deemed malicious under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). If CU can be forced to go to trial after this thorough and candid disclosure of its methods, this is the death of consumer ratings: It will be impossible to issue a meaningful consumer review that a band of determined lawyers can’t pick apart in front of a jury. The ultimate losers will be American consumers denied access to independent information about the safety and usefulness of products they buy with their hard-earned dollars. The majority sets a dangerous precedent, and the full court errs
grievously by failing to take the case en banc to correct the error.
Taking Judge Kozinski's warning a step further, just imagine the potential lawsuits for reviewers and critics of all types if they were subject to "disparagement" lawsuits: an angry film executive sues Roger Ebert for giving her film a "thumbs down"; a restaurant owner files a defemation claim against a magazine reviewer who didn't like the fish; or, to take a real life example, a talk show host gets sued for doing a show on the potential dangers of tainted beef. The reason the law requires "actual malice" is to separate basic acts of free speech from actual torts. The courts must vigorously defend objective standards against efforts to water them down, rather than simply letting things proceed to trial in the hopes the jury will figure it out.
Eugene Volokh, a former clerk for Judge Kozinski, discusses the substance of this case and Kozinski's dissent in this excellent post