UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 18, 1979
MARCUS A. ARNHEITER, PLAINTIFF-APPELLANT,
NEIL SHEEHAN, RANDOM HOUSE, INC., NATIONAL BROADCASTING COMPANY, INC., AND METROMEDIA, INC., DEFENDANTS-APPELLEES.
Appeal from the United States District Court for the Southern District of New York
Present: Hon. William H. Mulligan, Hon. Milton Pollack,*fn*
Hon. Robert L. Carter, * Circuit Judges
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed. Relying on principles of res judicata and collateral estoppel, we note that the Ninth Circuit has already judged the hardcover version of "The Arnheiter Affair" under the standard of actual malice enunciated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and concluded that neither the author Neil Sheehan nor Random House, Inc. published the hardcover with knowledge of its falsity or with reckless disregard for the truth. Arnheiter v. Random House, Inc., 578 F.2d 804 (1978). Appellant has failed to come forward with proof that, subsequent to the publication of the hardcoer version of the book, any of the appellees obtained knowledge that any statement in the book is false. Therefore, appellant has not met his burden under New York Times Co. v. Sullivan, supra, of providing clear and convicing proof that the April 11, 1972 interview of Neil Sheehan on "The Tonight Show" was broadcast with actual malice.