Garrison v. Louisiana – Oral Reargument – October 19, 1964

Media for Garrison v. Louisiana

Audio Transcription for Oral Argument – April 22, 1964 in Garrison v. Louisiana

Audio Transcription for Oral Reargument – October 19, 1964 in Garrison v. Louisiana

Earl Warren:

Number 400, Jim Garrison, Appellant, versus Louisiana.

Mr. Deutsch.

Eberhard P. Deutsch:

Mr. Chief Justice, may it please the Court.

Appellant is the District or Prosecuting Attorney for the Parish of Orleans, which is coterminous with the City of New Orleans, Louisiana.

He was inducted into office about two years ago and following that induction, set himself two goals.

First was an intensive attack to that fact —

Potter Stewart:

Should you say set himself two goals?

Eberhard P. Deutsch:

Yes.

Potter Stewart:

Okay.

Eberhard P. Deutsch:

First, was an intensive attack on a backlog of criminal cases awaiting disposition and the second was a campaign against commercialized vice in New Orleans Bourbon Street section.

Under Louisiana law, all fines and forfeitures in criminal cases go into a special fund under the control of the District Attorney for the payment of the expenses of his office and certain expenses of the criminal courts and he may make expenditures from that fund under the appropriate statute on the approval of a judge of the Court.

Such funds had always been used to pay for investigations made by the District Attorney on approval by a single judge and that applied to his predecessors in office, and it applied to him during the first few months of his incumbents.

Potter Stewart:

Is this the only source of funds to enable a District Attorney to make investigation?

Eberhard P. Deutsch:

There is a provision under which he is supplied with police officers by the City of New Orleans.

They are not funds, which he uses for that purpose.

Potter Stewart:

They’re personnel paid by the —

Eberhard P. Deutsch:

Personnel paid by the city is made available to him.

Aside from that — this, — well, actually that is not a fund given to him for that purpose.

This is the only front as such.

Potter Stewart:

His — his own salary doesn’t depend upon that, doesn’t it?

Eberhard P. Deutsch:

No.

No, his salary is a state salary pay.

This is for what we might call incidental expenses, sending people to an extradition matters to other states and the thing for furnishings of the office and actually for the officers of the judges and so on and so on.

A short time later, however, the judges met en banc and adopted a rule, there are eight of these judges, adopted a rule under which such expenditures would not be approved except on the concurrence of five of the eight judges.

And not long thereafter, they discontinued altogether the approval of the expenditures for vice investigation.

Earl Warren:

This was — happened when he was elected and took office?

Eberhard P. Deutsch:

This was some months, five or six months after he took office.

Potter Stewart:

How long a term each turn?

Eberhard P. Deutsch:

Four years I think.

Potter Stewart:

And he was first elected in 19 —

Eberhard P. Deutsch:

— 62.

Well, he took office I think in May 1962.

We have a kind of an irregular system of the elections.

We have primarily primaries.

Potter Stewart:

Yes.

But so he’s now serving his —

Eberhard P. Deutsch:

Well, he is now serving.

Potter Stewart:

He was then and he’s now serving his first elective term.

Eberhard P. Deutsch:

Correct.

(Inaudible)

Eberhard P. Deutsch:

A few days later after this fund was cut off, one of the recently retired judges of that Court made a statement to the press charging appellant with responsibility for the backlog of these untried cases.

He had been an officer, as I say, a few months at that time.

On the following day, the newspaper reporters came to him and asked if he had any comment to make about this statement and it was in response to that request that he made the statement, which is the subject of this litigation.

Earl Warren:

Did I understand you to say that that judge was retired at the time —

Eberhard P. Deutsch:

Had recently retired, just recently retired.

He was actually in office when appellant took office as District Attorney.

He retired between that time and the time of this incident.

Now, appellant said in answer to this statement by this judge in substance that it was the judges who were responsible for the backlog of untried criminal cases that they had been been taking excessive vacations, that they were endeavoring to block his vice investigations, and that their attitude and now I quote, may it please the Court, “raises interesting questions about the racketeer influences on our eight vacation-minded judges.”

Where is that stated?

Earl Warren:

In the record?

It’s right in the very beginning —

Potter Stewart:

Page 7 and 8 of your brief, isn’t it?

Eberhard P. Deutsch:

It’s, yes.

It’s — but that’s not in full in our brief.

Arthur J. Goldberg:

What is — what did the Court suggested?

Eberhard P. Deutsch:

If you will look at page 27 of the transcript, it — it is quoted in full 27 et. seq., goes through to page 32 at that point given in the text of the indictment or rather the bill of information, which was filed against it.

Now, on petition, formal petition of the eight criminal court judges, the Attorney General of Louisiana filed a bill of information charging appellant with criminal defamation under the Louisiana Defamation Statute.

And the Supreme Court of Louisiana appointed a judge from another district to try the case.

Trial by jury was denied under the Louisiana constitutional provision though the effect that a judge alone may try misdemeanor cases.

Potter Stewart:

Is there a timely demand for a jury trial?

Eberhard P. Deutsch:

Oh yes, formal motion on page 38 of the transcript, and formally denied in that point was formally taken up on appeal and so on to pass it on.

Arthur J. Goldberg:

(Inaudible) penalty in total?

Eberhard P. Deutsch:

Under this particular statute $3000 or one year in jail or both.

Now, let me say there are apparently some mistakes; one in the record somewhere and one in the Attorney General’s brief leaving out the word or both.

Actually, it does show in the original part of the Attorney General’s brief but later on it was quoted again and apparently inherent the words “or both” are left out, I think they’re extremely significant in light of the recent Barnett decision.

But it is also left out in the opinion of the Supreme Court unaccountably, those two words “or both”.

William J. Brennan, Jr.:

And what’s the significance of that?

Eberhard P. Deutsch:

Pardon?

William J. Brennan, Jr.:

I didn’t understand you say — what’s the significance of that?

Eberhard P. Deutsch:

Well, you know, you talk about petty offenses maybe heard without a jury.

Here you have a maximum penalty of $3000 or one year in jail or both.

I’d like —

William J. Brennan, Jr.:

What actually was the penalty?

Eberhard P. Deutsch:

You mean the sentence in this case?

William J. Brennan, Jr.:

Yes.

Eberhard P. Deutsch:

— was a fine of $1000 or in default of payment four months in prison.

William J. Brennan, Jr.:

Four months.

Eberhard P. Deutsch:

Now, as I said trial by jury was denied under this constitutional provision and a —

William J. Brennan, Jr.:

Well, that was the exception to that denial taken under the Federal Constitution?

Eberhard P. Deutsch:

This was passed on by the Supreme Court, again, on appeal in question.

Pardon?

William J. Brennan, Jr.:

On Federal Constitution again?

Eberhard P. Deutsch:

Oh yes.

There is a little — there’s no question raised about it if the Sixth Amendment was mentioned.

And then it says — the motion says — the Sixth and Fourteenth are mentioned in that motion but it also goes on to say in the alternative under the freedom of speech provisions also without saying in so many words the First and Fourteenth.

William J. Brennan, Jr.:

Now, this is not really a criminal contempt, is it?

The statute was —

Eberhard P. Deutsch:

This is not a contempt case at all.

This is a criminal prosecution for defamation.

Byron R. White:

Under a defamation statute.

Eberhard P. Deutsch:

Under a specific state defamation statute.

(Inaudible)

Eberhard P. Deutsch:

Or a misdemeanor as I’m not — I assume you’re not making that distinction..

(Inaudible)

Eberhard P. Deutsch:

It is a prosecution and it is a — it is a prosecution without a jury of course, that sort of advances my point a little but I’ll get to it again, if I may.

Also his place under the First and Fourteenth Amendment that this statute so applied violated the First and Fourteenth Amendments with regard to his right of free speech was also specifically overruled.

And again, it was passed on by the Supreme Court on appeal and so on.

The judge found the appellant guilty, sentenced him to pay this fine of a $1000 or four months in jail stating that he did so under the mitigating circumstances of the case, and that he would be less than frank, and I’m quoting, “If he did not say that the defamatory statement might not have been issued without some probable case.”

Well that goes into this question of malice.

The Supreme Court affirmed it held in substance that there was no violation of the First and Fourteenth Amendments on free speech that they found no provisions in the Constitution of the United States requiring a trial by jury under such circumstances and because Louisiana treats defamation and contempt as separate offenses.

It is unnecessary for us to consider the issues behind the phrase “clear and present danger” under the opinions of this Court which deal with their — which have dealt with the offense of contempt.

William J. Brennan, Jr.:

Is it — malice is an ingredient of the offense, is it?

I know it says malicious publications.

That’s what it said in this.

Eberhard P. Deutsch:

That raises the interesting questions of statutory construction and really it’s not directly pertinent here because the state took it upon itself to prove that there was malice without raising the point whether it have to do so or not.

And there was a finding —

William J. Brennan, Jr.:

Well, are you making any attack upon the sufficiency of the evidence of malice?

Eberhard P. Deutsch:

I am insofar as that word was given a definition by this Court recently in the New York Times case.

Byron R. White:

What would that be?

Eberhard P. Deutsch:

You mean what I have just said?

Byron R. White:

What do you mean by that?

Eberhard P. Deutsch:

This Court held in the New York Times case that ‘actual malice’ was a deliberate misstatement of fact or a reckless disregard as to its falsity.

There is no such finding, we submit, in this record.

There is a finding in the words of mouths and I’ll come to that if I may.

Byron R. White:

Then you say there is no evidence to support the finding —

Eberhard P. Deutsch:

Of malice under that definition.

I think I can clarify that immediately by reading a short paragraph on page 633 of the transcript from the opinion of the trial court at the first full paragraph at the top of the page.

After making the finding of malice on the preceding page, the judge said, “However where it conceded for the purposes of argument that he did have a reasonable belief as to the truth of the statement and the statement was entitled to be considered a qualified privilege, I am with the opinion that the state has proved ‘actual malice’ in its many definitions, et cetera.”

In other words, even if he had says the reasonable belof — belief in the truth of what he was saying, I still find it was actuated by malice that could not be the malice which this Court recently defined.

(Inaudible)

Eberhard P. Deutsch:

Well, when the — under Louisiana Law as I understand it, I trust you’ll forgive me, this is first criminal case with which I ever had any connections, but as I understand that any sentence of more than one year is not served in the parish prison and I think that would straighten that out.

(Inaudible)

Eberhard P. Deutsch:

If I’m wrong about that, I will be happy to stand corrected.

That’s my understanding.

But there is no question that a misdemeanor is the one that goes up to one year.

Now, we do submit, may it please the Court that the validity —

William J. Brennan, Jr.:

Forgive me.

Eberhard P. Deutsch:

Fine, surely.

William J. Brennan, Jr.:

I just like the fact if I may for one second on this malice, but is it your suggestion that the way the Court phrased that where it conceded for the purposes of argument that he did have a reasonable belief.

That the Court is suggesting that as he did in fact of — and he finally get in —

Eberhard P. Deutsch:

If you will read Mr. Justice Brennan on the preceding page —

William J. Brennan, Jr.:

Here I am.

Eberhard P. Deutsch:

That — towards the bottom, the long paragraph it says it —

William J. Brennan, Jr.:

Yes.

It says it could not have reasonably had on the honest reasonable belief.

Eberhard P. Deutsch:

He puts it of course in the form of an inference —

William J. Brennan, Jr.:

Yes.

Eberhard P. Deutsch:

He says, “I cannot understand that he could have any other.”

He doesn’t make it a finding of fact.

William J. Brennan, Jr.:

I see, yes.

Eberhard P. Deutsch:

And then he goes on, “But even if so, he’s actuated by malice anyway if they should believe there was truth.”

William J. Brennan, Jr.:

Well, what —

Eberhard P. Deutsch:

So he’s not talking about your kind of malice.

William J. Brennan, Jr.:

Well what I want to get to was this.

If we should agree with you at least this suggests an ingredient which is contrary to the test stated in the Times case.

Would that entitled you to a reversal?

Eberhard P. Deutsch:

I think that alone —

William J. Brennan, Jr.:

At that time —

Eberhard P. Deutsch:

— look, but there are many other grounds.

William J. Brennan, Jr.:

Yes, but on this ground alone, you think it was.

Eberhard P. Deutsch:

Well, you see in the Times case, you didn’t make a finding with regard to a criminal case at all.

You were talking about the right to recover civil damages.

William J. Brennan, Jr.:

Well, I’m only assuming from what you’ve suggested that we should agree with you, that the malice test is that where this statute as it was in the Times case.

Eberhard P. Deutsch:

Yes, then —

William J. Brennan, Jr.:

And that assumption, what I’m trying to get to is whether you think there is a sufficient departure from the time of the test of malice that you’d be entitled on that ground alone assuming that Times testified to a reversal.

Eberhard P. Deutsch:

I stand on that, yes.

William J. Brennan, Jr.:

You do think?

Eberhard P. Deutsch:

Yes sir.

William J. Brennan, Jr.:

Thank you.

Eberhard P. Deutsch:

Of course, as I was just starting to say perhaps indirectly in that connection, that we do take the position that the application of a state criminal libel statute especially when employed as a sedition law with regard to criticism of public official simply can’t be reconciled at all with the principles of the First Amendment passing through the Fourteenth with regard to a state statute.

That’s — that seems to have been considerable controversy on that subject in this Court.

I don’t have to go all the way with the proponents of that principle whatever my own views are but in this particular case, you’ve got a general criminal libel statute being applied as Sedition Act.

Now, of course —

William J. Brennan, Jr.:

You’re limiting this now.

This argument is limited to public officials?

Eberhard P. Deutsch:

I — as far as I have to go —

William J. Brennan, Jr.:

That’s right.

But is your argument base that this is a sedition law?

Eberhard P. Deutsch:

That this is being applied as a sedition law.

William J. Brennan, Jr.:

Because it’s involved —

Eberhard P. Deutsch:

Criticism of public official —

William J. Brennan, Jr.:

— criticism of public official?

Eberhard P. Deutsch:

That’s right.

Byron R. White:

But in their official capacity?

Eberhard P. Deutsch:

Well, of course, the argument is made on the other side that it is not.

Byron R. White:

What does your brief have to say about that?

Eberhard P. Deutsch:

What does our brief say?

Byron R. White:

Yes, what was in there in a decision that was passed there?

Eberhard P. Deutsch:

Well, I don’t think there is a slightest question that when you say a judge took a bribe if that’s what you say for instance, that’s not involved in this case, you’re certainly talking about the judge in his official capacity, whatever reflections you may be casting on his personal character.

Byron R. White:

There’s no suggestion — there’s no suggestion in this case that any of the allegations that he took a bribe in connection with any of the suits.

Eberhard P. Deutsch:

Oh, there’s no bribe question here at all.

I’m using that for illustration.

Byron R. White:

Alright.

The word that you said about it was indirect view.

Eberhard P. Deutsch:

No, that didn’t aim to that.

That I — this raises interesting questions as to our — whether our vacation-minded judges are subject to racketeering influences or something of that sort.

He did not say about each and everyone unless you want to read this thing with great care, an oral statement made to reporters.

He said as to whether our eight vacation-minded judges are subject to racketeering influences.

Hugo L. Black:

What do you say about the constitutional arguments that are made by many that the Court just can’t survive maybe destroyed to their existence unless they can kind of speak with the contempt to criticize that?

Eberhard P. Deutsch:

Well, I think perhaps I could best state it by stating sir that I stand with you in your views on that subject that’s heretofore expressed.

I take it I don’t need to elaborate on that statement.

I should be very happy to do so.

I’ve have read every word written on this, sir.

Now, I do say that the opinion of the Supreme Court of Louisiana was rendered of course before the New York Times case.

The Supreme Court of Louisiana relied on the statement in the Beauharnais and prior cases, which said libel is not covered by the First Amendment.

You ought to straighten that out, to my satisfaction in the New York Times case stating that your expressions in the Beauharnais and other cases to the effect that the Constitution does not protect libelous publications do not foreclose inquiry in the cases which might involve the use of libel laws to impose sanctions upon expressions, critical of the official conduct of public officials.

And incidentally, Mr. Justice Black, you have in our brief a statement by Mr. Justice Brewer which takes that question about destruction of courts by criticism of judges and applies it to the Supreme Court of the United States, and says it is — it might be used as a current fiction perhaps because it no such thing could possibly exist.

Hugo L. Black:

I remember they referred to that, more than 27 years ago.

Eberhard P. Deutsch:

I remember that reference too.

Now, I do call your attention if I may to a couple of matters which you have not had a case and at least to put into your briefs within your opinions and which as far as I know have not been in briefs before this Court in analogous cases, for instance that Madison in the Virginia resolutions on the Sedition Act of 1798 that it would seem a mockery to say that no law should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made.

It gets back to this question of previous restraint not being the full scope of the First Amendment.

And Governor Morris with regard to the Zenger acquittal said that the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.

And Dean Pound said the same thing.

He cited in an article, a case of a chap in England who had been convicted for saying that a certain justice of the peace was “a baffle-headed fellow.”

And Dean Pound says it was that sort of thing that led the colonies as soon as they could make a frame of government for themselves into what these provisions with reference to the liberty of the press in their Bill of Rights, a criticism of a judge or justice of the peace in that case.

Now then, came the Sedition Act, the federalist ruthless enforcement of its provisions.

And then this is something else so far as I know that has never been mentioned in that connection.

A resolution was introduced in the House of Representatives to repeal the second section of the Sedition Act.

It was approved in the House.

It was passed in the House by a vote of 50 to 48 on the lone federalist vote of John Marsh who very nearly wrecked his political career by that statement because he went directly against this party.

Eberhard P. Deutsch:

He was the only federalist in the Congress, which had a majority of federalists, which went along with the repeal of the sedition law.

Now, in 1940, Attorney General Robert H. Jackson refused to institute a prosecution for criminal libel of a public official under the District of Columbia’s Criminal Libel Act stating that that would constitute embarrassment not consistent with our support of the freedom of the press and it is therefore the Department of Justice policy that we do not institute that kind of action.

Actually, on statistics which we have cited in our brief, it is shown that the larger number of criminal libel actions recently instituted throughout the United States, have been for libel of public officials that is as Sedition Act.

After all, this Court has held uniformly now in a number of leading cases that out of court criticism of judges may not be punished as contempt without trial by jury and in the absence of a clear and present danger of interference with the administration of justice.

We submit that you cannot change that rule in a criminal libel prosecution without a jury simply by calling it, labeling it criminal libel or sedition instead of contempt of court.

We submit there is no real difference there.

Now, the question of malice is really the only other one whether this Court intends to substitute that rule for the clear and present danger rule, which I’m sure it did not in the New York Times case.

And — or whether perhaps it means to add that on to the requirements amongst the clear and present danger rule.

We submit that in any event there has not been a finding of malice as I stated a few moments ago within the meaning of that expression as used in the New York Times case that the prosecution in the case at bar violated the First and Fourteenth Amendments and that the opinion of the Supreme Court of Louisiana should be reversed.

Potter Stewart:

Well now the trial judge did say — he said it is inconceivable to me that the defendant could have had a reasonable belief which could be defined as an honest belief that not one but all eight of these judges of the Criminal District Court were guilty of what he charged them with as a defamatory statement.

Well, you say he didn’t characterized that as a finding but he said that’s certainly is a very clear cut conclusion, that the — that the defendant —

Eberhard P. Deutsch:

On the question he made that —

Potter Stewart:

— was not telling the truth and knew that he was not telling the truth.

That’s the finding, isn’t it?

Eberhard P. Deutsch:

He said, “I cannot escape that inference of that conclusion.”

He did not make it a specific finding.

Potter Stewart:

Well he said, “I could not escape the conclusion.”

Eberhard P. Deutsch:

I cannot escape that conclusion.

Potter Stewart:

And then he says “I can only conclude.”

Eberhard P. Deutsch:

Well that’s —

Potter Stewart:

He’d made no findings or —

Eberhard P. Deutsch:

That’s covered on that.

Potter Stewart:

Well now, in view of that finding by the trial court which I gather, you don’t specifically take issue with, why isn’t — why isn’t that malice?

Eberhard P. Deutsch:

Well I do take issue with the — we took issue with —

Potter Stewart:

You say it too?

Eberhard P. Deutsch:

— on the facts, oh yes.

Potter Stewart:

And you — and you say so here?

Eberhard P. Deutsch:

You all — under your own decisions we’ll examine the findings of fact and we trace them in the brief.

Potter Stewart:

Yes.

Eberhard P. Deutsch:

We say in a controversy of this sort started let us say when the immediate purposes, there was staff preceding all of these that I have mentioned.

Eberhard P. Deutsch:

There were some more afterwards.

If you look for instance at note 3 on page 6 of the supplemental brief, our supplemental brief, you’ll find the speech which he made a couple — the appellant made a couple of months later talking about the — these excess vacations of these district judges and so on that he felt himself bound to tell the people of New Orleans the truth.

The only way he could get the sacred cows backdoor was by informing the public as to what they were doing.

Now, a public official under Wood versus Georgia and so on, has a duty to say those things and in our opinion can’t be charged with malice perse.

Potter Stewart:

Well, I’m just going to the trial court’s finding that the defendant knew what he said — that what the defendant said was false and that the defendant knew it was false.

Eberhard P. Deutsch:

I don’t treat that as a finding sir but that, we’ll begin to get in the semantics there, I think it is simply an inference on his part and not a formal finding but that even if it is, we find fault.

Hugo L. Black:

It is a finding on what is this based, or the basis.

Eberhard P. Deutsch:

Or there’s evidence, there’s hundreds of pages of evidence here.

There he bases it —

Hugo L. Black:

But I think it is a common ordinary thing for a man to think that someone else who’s vowed to disagree, it’s been viewed that he’s filing the old either has to be decided fully.

How are you going to get down into the knowledge to what a man absolutely uses in the (Voice Overlap).

I — what’s the reason to ask, what are the facts on which he basis it?

Eberhard P. Deutsch:

Well the fact that he made similar statements on other occasions which showed that he was repeating and that that could be engendered only by malice.

That’s why I call it —

Hugo L. Black:

That’s what I’m talking about —

Eberhard P. Deutsch:

— a conclusion rather than finding.

Hugo L. Black:

As far as it is truthful that he say that because the man said it and kept repeating it, it is bound to be a falter?

Eberhard P. Deutsch:

He made one other.

I’m not going to try to say that I’m going to give you now all the evidence on which that was based because there’s hundred — hundreds of pages of evidence.

But for instance, he said he couldn’t considerably have believed that all of these judges were subject to racketeering influence and he made no exceptions when he made this statement.

He takes that for instance as an indicia of malice.

Hugo L. Black:

But he’s taking judicial knowledge of that that he had some evidence on which to base it —

Eberhard P. Deutsch:

Well, I assume he knew the judges but I assume also that he tried this case on the record.

I have not fault to find whether he’s going outside the record for that purpose.

I call your attention in the New York Times case to footnote — I’m sorry, I don’t have an official copy here but it’s Footnote 13 citing John Stewart Mill on liberty stating that there just has to be misstatement from time to time in the course of controversy in public life and that — that’s not in effect evidence of malice because it says very fine people do that from time to time.

Now, if there is any misstatement of fact here, in my humble opinion (Voice Overlap) it could be found only by construing these words in a certain way in which in my opinion, they were not meant and I — I just don’t believe they were meant to.

Hugo L. Black:

It sounds like you’ve covered that in New Orleans, to the people who never exaggerated political rights among themselves.

Eberhard P. Deutsch:

May I quote that to the Chamber of Commerce (Laughter).

Earl Warren:

Attorney General Gremillion

Jack P.F. Gremillion:

Mr. Chief Justice, members of the Court.

Jack P.F. Gremillion:

I think that the law in this case is pretty well expressed in the Times-Sullivan decision which states that where defamatory remarks concerned a public official in his official conduct, that actual malice must be shown to sustain a conviction or recovery in a civil suit, and likewise to sustain a judgment of guilty as charged in a criminal statute.I have no argument with that.

And I certainly appreciate counsel’s marvelous opportunity and presentation to try to bring this case under the time through.

But as you said in the Times decision, that it was your duty to — it’s not limited to the elaboration of constitutional principles.

We must also in proper cases review the evidence to make sure that these principles have been constitutionally applied.

I’m very confident that this Court will do that.

And I know that when you do that, that you will find here, the District Attorney making malicious statements that attack the personal reputation of these judges which subjected them to hatred, ridicule, and contempt, and which destroyed their public confidence.

Now, that is the charge that the state made.

That may review our defamation statutes.

And I ask you to bear in mind that this is not a contempt proceeding.

Contempt is defined as an entirely different matter in the State of Louisiana.

Contempt can be constructed in the presence of the Court or it can be outside of the presence of the Court such as a newspaper public — publishing an editorial about the conduct of the Court.

And I might say that Louisiana recognize this, the clear and present danger because in the case of Graham versus Jones which is cited in our supplemental brief.

The Supreme Court of Louisiana said that this editorial of the Times speaking succinctly have no effect on the decision of these judges and dismissed the contempt citation of the Times speaking here.

But we have no clear and present danger involved in this particular matter because there was no question about the obstruction of justice.

There was no uestion about defamatory statement going to the personal reputation of these judges.

And what the defendant did here?

He used a —

Byron R. White:

(Voice Overlap) Mr. Gremillion that the — that these statements really are not under attack upon the official conduct of the —

Jack P.F. Gremillion:

We contend that there are — that they go to the personal reputation of these judges and our bill of information charged that he willfully and maliciously made it, and that it subjected them to hatred, contempt, and ridicule, and destroyed their public confidence.

Byron R. White:

Well is the — is it your claim in this case could not be viewed as criticism of the public officials?

Jack P.F. Gremillion:

Absolutely.

Byron R. White:

I mean that the other —

Jack P.F. Gremillion:

It should not be considered, it — if just these men happened to be judges and he defamed them in that personal category.

William J. Brennan, Jr.:

Well, Mr. Attorney General, is it conceivable that he dissent these things that they were not in office?

Jack P.F. Gremillion:

I don’t understand your question, sir.

William J. Brennan, Jr.:

Would he have made the statements that these men were not in office as judges?

Jack P.F. Gremillion:

All that — absolutely not.

He would have no occasion to.

But what I’m getting at is this.

That he filed — the defendant filed a bill, a motion for a bill of particulars which we answered.

Jack P.F. Gremillion:

And we charged in that bill of particulars — we — we answered in the bill of particulars that we were going to use the statement in its entirety.

And we were going to depend upon the statement of November the 2nd in its entirety.

And that he want to ask also whether these statements were made as maliciously and we answered him that we would prove that the statements who are malicious both in law and in fact and we put all 22 witnesses to prove that number one, the statement that he made was entirely false.

And number two that it was made with ‘actual malice’.

And the record is complete in that particular respect.

Now, let me say this —

Earl Warren:

General, may I ask you —

Jack P.F. Gremillion:

Yes sir.

Earl Warren:

— what particular statement or statements are in his press — press release which disassociate these justices from their — from their official duties?

In other words, what did he say that can — can be said to be only personal against these judges and not what has to do with their official conduct?

Jack P.F. Gremillion:

Well, you have to take the statement in its entirety and look at it as one.

And in there, he said that all of these things about the backlog of cases which I’d like to talk about in a minute —

Earl Warren:

Yes.

Jack P.F. Gremillion:

— and about the crowded condition of the jail, those judges had nothing to do with that, absolutely nothing to do with that.

The criminal sheriff who’s in charge of the jail, the District Attorney in Louisiana has complete charge of the docket.

He determines who comes to trial, when he comes to trial, and how he will prosecute it.

All of those statements in here are —

Earl Warren:

You mean the judges?

Jack P.F. Gremillion:

— absolutely false and we prove them as false.

And then here’s where he — where he hits it that — at that character.

He says all of these.

That first, he says again, the message is clear, “Don’t rock the bullet son, you’re not supposed to investigate anything.”

Well, the judges never sent him any such statement like that.

They never told him that, they all took the stand and say that this statement was false in its entirety.

Now, the official — the — the statements about official conduct was conduct with which these judges had nothing to do with.

And then after making all these statements, he comes up with this.

This raised his interesting questions about the racketeer influences on our eight vacation-minded judges.

Now, in the first place, those judges were conducting that Court in accordance with the law.

It never was proved that they took vacation.

They didn’t take any vacations at all.

Jack P.F. Gremillion:

We’ve got to remember that the courts certainly require a lot more time off the bench than they do on the bench —

Potter Stewart:

You said they were vacation-minded.

Jack P.F. Gremillion:

That’s right, you said —

Potter Stewart:

Was anybody’s —

Jack P.F. Gremillion:

— vacation-minded.

But of course, if they were guilty of taking excessive vacations contrary to the law, they could be indicted and prosecuted from malpheasants.

But instead, he had a lot of legal remedies.

He could have held an open hearing if he had evidence that these judges were racketeers, or there was influenced by racketeers.

Certainly, when you say you’re influenced by a racketeer, you mean — you’re stating the ordinary meaning of the word to the general public.

And when you say that I’m influenced by a racketeer or you’re influenced by a racketeer, that means that some crook is either paying you off or bribing you to influence in your decision, influence you in your decision.

And it can have no other meaning.

Byron R. White:

Was that the charge of — you mean the official conduct it seems to me.

Jack P.F. Gremillion:

Alright, okay.

I don’t think so, Your Honor.

I don’t think that leads to official conduct (Voice Overlap) because if that was true — if that was true, they had no business serving these judges.

And that was the reason why I file this Bill of Information against Mr. Garrison because if he could prove that those men were influenced by racketeers, and if they were being influenced by racketeers, they had no business serving on that bench and they should be indicted, and tried, and removed.

If he had a remedy, he could have gone to the Supreme Court and ask the judicial, the administrator of the Supreme Court of Louisiana to investigate it.

He could have brought it before the grand jury himself if he had that particular evidence.

And of course as the trial judge says, “I can’t find out what’s in Mr. Garrison’s mind.”

Incidentally, he didn’t take the stand at this case.

He subpoenaed some 22 witnesses and didn’t put a warrant on.

We put all 23 witnesses to prove that he made the statement with ‘actual malice’.

And then it damaged these persons individually.

And after we finished our case, he rests it.

So the facts in this case are absolutely uncontroverted.

There’s no doubt about it.

There’s no doubt about the fact that the judge, when he made the statement “it is inconceivable to me” that he knew his statements were false when he made them, because if he didn’t find that under his oath of office, he’s required to find the men not guilty.

So that’s one of the ingredients of the offense.

(Inaudible)

Jack P.F. Gremillion:

False and malicious statement.

(Inaudible)

Jack P.F. Gremillion:

Because of the fact that we have proved that the statement was made with ‘actual malice’ to injure these people.

(Inaudible)

Jack P.F. Gremillion:

Well, we go back to gray matter that you’re talking — that you’ve talked about it.

Now, this could be — yes, this could be a — but you see, he was using a qualified privilege as a vehicle to vindicate himself against these persons individually.

And several of our historians have made statements concerning that.

We have one in our original brief.

I don’t remember who made it but he said that the First Amendment said it didn’t allow an individual the right or freedom of speech to abuse that particular liberty.

And Louisiana law, I submit is in complete accord with the rationale of the Sullivan or the Times case, however you want to refer to it.

Byron R. White:

Was there — do you think that the evidence in this case that show that this fellow, that he actually knew the information was false?

Jack P.F. Gremillion:

Oh yes, the evidence proves that.

Let me briefly run down this —

Byron R. White:

(Voice Overlap) these were false, but that he knew it?

Jack P.F. Gremillion:

Oh yes, absolutely.

Because he certainly knows the criminal statutes, because he’s a District Attorney and he’s a lawyer.

1557 provides that — that he’s in charge of the docket.

He knew that that was his responsibility to bring those cases to the trial not the judges.

The prisoner was in jail and wanted to get a quick trial, and at the end, he did not want to bring him to trial, he could file a motion with the Court in a motion — the Court would then fix the trial date.

But you see the reason I say it’s within the rationale of the Sullivan and the Times case is this particular reason.

A cause that is important from our defamation statute, our defamation statute says that defamation is the malicious publication or expression in any malice to anyone other than the part of defense, to expose persons to hatred, contempt, to ridicule, or to deprive him of the benefit of public confidence or social intercourse.

It’s questionable about a fine of $3000 and not more than one year in jail.

Now 49 provide — statutes of Fourteenth and that provides this.

A qualified privilege exists, an actual malice must be proved regardless of whether the publication is true or false in the following situations, the conduct of a person in respect to public affairs.

And then the next article gives an absolute privilege to a legislator, a judge, and a statement of a witness stand and so forth.

And this is the same statute that you mentioned in the Times case that was enacted in the 1908 Gorman case where the state attorney general was running for office and there you found that the law was appropriate to set forth in the Kansas case and noted that there was some 20 somewhat states that had similar laws and Louisiana I submit is one that had similar laws.

Now —

Hugo L. Black:

Do your judges elected them as —

Jack P.F. Gremillion:

Yes sir, they’re elected for — I think eight years, if I’m not mistaken, yes.

You see, the Parish of Orleans has a Home Rule Charter.

And the District Attorney is elected at the same time the mayor and the counsel went of.

Jack P.F. Gremillion:

They go in for a period of four years.

Other District Attorneys in state are six years.

But the judges if I’m — the 12 — they have 12 years in the Parish of Orleans.

And in other districts in the State of Louisiana, of course, they have six years.

Hugo L. Black:

They have been made or they all —

Jack P.F. Gremillion:

They have (Voice Overlap) — they preside over for sections.

They had — he — he approve each and each one has that particular section.

And the judge with the longest service which is Judge Black has been on the bench 44 years out of his 50 years of practice.

With the long and honorable career, he was one of the men that was defamed in this case.

The one with the longest service is the Chief Judge.

Now, let me —

Hugo L. Black:

I haven’t heard yet from either one of yours, what was your basis which started this?

What did this man claimed was running in New Orleans that ought not to run?

Jack P.F. Gremillion:

Well —

Hugo L. Black:

What does the word racketeer means there General?

What were you talking about?

Jack P.F. Gremillion:

When he took office, he promised that he was going to close down Bourbon Street.

Hugo L. Black:

That’s pretty soon (Laughter) do you think?

Jack P.F. Gremillion:

Well I mean that — that was his premise and of course that’s the heart of his statements.

He claims that —

Hugo L. Black:

Is that the heart of his —

Jack P.F. Gremillion:

That the judges blocked his vice investigations.

Now, it’s in this record that the judges don’t have anything to do with vice investigations because the State of Louis — the State Supreme Court in the case of State versus Marrero has said that a District Attorney is not an investigator.

That in the Parish of Orleans and this is in our constitution in Orleans, in Parish of Orleans, that the police department is the one to make these particular investigations —

Hugo L. Black:

You mean he’s barred —

Jack P.F. Gremillion:

That’s why he’s got 12 — yes sir?

Hugo L. Black:

Do you mean he’s barred from investigating crimes?

Jack P.F. Gremillion:

Oh absolutely not.

He’s got an open hearing.

He can bring or file a Bill of Information.

Jack P.F. Gremillion:

He can bring witnesses before —

Hugo L. Black:

Having a grand jury?

Jack P.F. Gremillion:

Oh yes, in the Parish of Orleans, states in session, all of that.

Hugo L. Black:

What do they mean, who preside government charges?

Jack P.F. Gremillion:

The district judge —

Hugo L. Black:

The district judge.

Jack P.F. Gremillion:

That’s correct.

Hugo L. Black:

Which is — is it his view that he charge him of that vice in crime?

Jack P.F. Gremillion:

That’s absolutely correct and everyone — everyone of these —

Hugo L. Black:

He depended on the District Attorney for that, isn’t it?

Jack P.F. Gremillion:

Oh no.

But the District Attorney is a legal adviser to the grand jury.

And in the Parish of Orleans, he collects his evidence from the police department and brings it before the grand jury, you understand?

And each one of these judges got up on the stand, and said that they had denied that they had ever blocked his attempts.

That each one went up and said, he didn’t care, I can’t repeat his word, he said he didn’t give a — what you call they could close anything up on Bourbon Street as far as he was concerned because he had no sympathy for them.

So that portion of the statement was absolutely false.

And we put Superintendent —

Hugo L. Black:

What statement are you talking?

Jack P.F. Gremillion:

I’m talking about the statement that Mr. Garrison made when he said that they blocked his attempts to stimulate vice.

And you see that’s where this racketeering influence becomes so important because he says that — that they tried to stop fines and forfeitures for him when the first beer drinking spot was closed down.

And that raised these questions of racketeering influence.

So when you consider his statement together with the background of this thing, it only means one thing, that you’re influenced by racketeers, you hate criminal district judges.

Earl Warren:

General, I un — I understood Mr. Deutsch to say that prior to the time this man was District Attorney, under the law, the judges — this group of judges or one of them at least was in the habit of authorizing expenditures —

Jack P.F. Gremillion:

Yes sir.

Earl Warren:

— by the District Attorney for the suppression of vice that when he came in, they — they have the meeting en banc and decided that it would take five of the eight judges to authorize such expenditures and that thereafter, they would — they would permit no expenditures of that kind by him, is that correct?

Jack P.F. Gremillion:

No, it’s partially correct.

Let me straighten that out for you.

Earl Warren:

Well I’m in —

Jack P.F. Gremillion:

And this is all in the record —

Earl Warren:

I may have then stated —

Jack P.F. Gremillion:

You see in — in Orleans Parish, they have a lot of expeditions.

And the legislature provided that the fines and forfeitures would go to the District Attorney, would be put into account, and he would use that for the expenses of his offices for extraditions.

It doesn’t say anything about vice.

Now, he would use that for extraditions and other general expenses.

At the end of the year, he’d keep half of the money himself, he turn the half over to the City Treasury.

They’ll also provide and he’s got to file a motion with the city clerk saying that “I want $3000 for a room.”

And — then he files that with the clerk of the City Court in New Orleans.

And then 24 hours after that, I believe it is, he goes to the court to anyone of the judges, to get an approval of that particular expenditure.

It’s a motion that’s filed in open court.

It’s a public record.

Now, what started this five out of eight business whether it was right or not, was the fact — and this is all in the record, was the fact that Mr. Garrison went to this retired judge to get him to approve this application for this room and the judge says, “I think it’s too expensive.

Give me some proof.”

And in the meantime, this judge went on his vacation.

And he went to another judge and told this judge, “That Judge Beauharnais said it was alright.”

And upon Mr. Garrison’s statement and assurance, the judge signed it.

And it turned out later on to be completely false.

So the District Attorney was playing one judge up against the other.

Hugo L. Black:

Did you say —

Jack P.F. Gremillion:

And that’s when they met — now I say this Mr. Black — Mr. Justice Black, may I say this.

Now, before he took office and this is in the record, he said he thought the system was bad that the judges wanted to change and he agreed with it that it should be changed.

He was present at that en banc meeting and didn’t disapprove or voice any objection whatsoever.

And so then —

Hugo L. Black:

I then try to ask you, did you say one of the judges went away on vacation?

Jack P.F. Gremillion:

This was the retired judge.

He went to Asheville, North Carolina.

But that was a legal vacation because he had absolutely retired.

Hugo L. Black:

I believe of that.

Jack P.F. Gremillion:

Now — and of course, that’s when — let me say this — this is in the record too, that there were some 73 motions approved by these judges during this controversy, they gave him over — over eight — I think $65,000 to operate on.

So how — how could they be blocking his efforts as to what he wanted to do if they were approving that much expenses for it?

Then in addition to that, he had 12 policemen who are paid for by the city and he’s back in call to use as he saw fit to investigate, to do anything.

Jack P.F. Gremillion:

We put the police superintendent on the stand.

He said that he picked the 12 men on — I’m talking about the defendant.

The defendant picked the 12 men out.

And the defendant had them.

And that he hadn’t interfered with their activities that they reported to him, and did what he was supposed to do, so all of that is in the record to prove that this statement that he made on November the 2nd was absolutely false.

Now, let me go into this question of malice.

He said that they were subject to racketeering influence.

On the same day, he said that they were taking vacations and that that wasn’t nothing but a racket.

He said something — in fact one of the judges to be charitable, he’s a lie.

Then he said the only way to get these sacred cows back to work is bring this to the public.

Then he made a speech at a Catholic Church group in New Orleans.

And he got up and he repeated the fact.

He says, “I’m going to continue.”

He says, “I don’t care.”

He says, “I’m not going to let any judge stop me.”

He says, “I don’t care what they say.”

He says, “I don’t care whether we have perfect rules, red rules.

Or any other kind of rule, I’m not going to let any judge get in my way.

And I call to your attention that I don’t care being a reckless disregard for the truth.”

Hugo L. Black:

I know that he claims in his argument he’s not going to stop.

He’s not going to stop what?

Jack P.F. Gremillion:

He says he’s not going to stop his investigations, is what he’s talking about which the judges had — hadn’t done and we prove that.

He again repeated that they were subject to racketeering influences.

And then he made up the statement, he says, “I don’t care what you call it.”

He says, “That’s the only reason they’re subject to racketeering influences.”

They made a speech after he was — while the trial was — or just right before the trial.

He made a speech on television.

He repeated the fact that these judges were subject to racketeering influences.

And yet he told one on private that he didn’t really mean that about him.

And he said to another one, Judge Wimbley was a real good judge.

Jack P.F. Gremillion:

But then he gets up and makes the speech that same afternoon in which he says they’re all subject to racketeering influences and there can be no other reason.

And then when he made the speech to the church group, he says, “I’m going to continue to tell the people of New Orleans about this.”

He says, “Because I’ve got no opposition to turn to.”

He says, “The other officials are the association of armed robbers.”

Now, you mean to tell me you’re going to say that the — you keep saying that.

You keep repeating that about five or six times and you tell that to the public and that the Captain Orlow, he made a statement after it all happened.

And that’s in the record.

He says, “If I had to do it again,” he says, “I’d say the same thing.”

As the trial judge says —

Hugo L. Black:

Who is he referring — who is he referring to as armed robbers?

Jack P.F. Gremillion:

All of the officials, he was talking about the judges.

Hugo L. Black:

Where is that in the record?

Jack P.F. Gremillion:

That’s in the record (Voice Overlap) I saw it, I can’t find it, just a second.

Hugo L. Black:

I just wanted to get that, that’s part of the record, if you could get to that immediately.

Jack P.F. Gremillion:

I can’t find it right now, Your Honor, but it’s definitely in the record because it was — comes in a testimony — of one of the court throughout that took it all down, that comes in a testimony of — what, 259, I think.

Hugo L. Black:

259?

Jack P.F. Gremillion:

Of the record, Your Honor.

Potter Stewart:

I’m almost half way down the page.

Jack P.F. Gremillion:

That’s the witness of the court reporter.

Potter Stewart:

“I have no allies because the other officials are the association of armed robbers,” on page 259, almost half of that —

Jack P.F. Gremillion:

Well, that was the subject matter of his speech.

It was his condemnation of these judges.

That was what his whole speech was about.

That’s what he’s talking about.

They’ve got to please — I submit to this Court that our laws are complete.

The Court with the decision of this Court in the Sullivan case, I don’t think there’s a doubt about that.

And this Court, I’m talking about the state court that tried it, found and proved that he was guilty beyond a reasonable doubt.

He had every constitutional safeguard afforded him in the trial of his case.

We were very fair about it.

The judge found that the trial judge was very fair about it.

Jack P.F. Gremillion:

And if you will read his decision which starts, I think on the 16 of the record, you will find that it is thoroughly, it’s complete, that his decision was based on the evidence — on the evidence, it was given by the 23 witnesses that the state produced.

And there’s nothing in this record that shows any of these testimonies that these witnesses produced to be false.

It’s devoid of it.

During a trial, he said he was going to take the stand himself but he didn’t.

The judges got up and said that that statement was false.

The judges got up and said that they had been exposed to hatred and ridicule.

One of them even said that who’s a member in New Or — in New Orleans Athletic Club, he says — now and he walked into the club, all the members started how to move, move, move.

Well, how much does a judge — how much does a person got to be subjected to?

And that state — others had phone calls with bad English, “You so and so racketeer, and so forth.”

One of the judges’ son was absolutely insulted in school.

One of the pupils told this — told this particular boy of the Judge Beauharnais’ boy that, “Your father is a crook.

Your father is a thief.”

That’s all in the record and none of it is uncontradicted, not a bit of it.

Potter Stewart:

Is that boy tried for — under your criminal statute?

Jack P.F. Gremillion:

No, no, no.

I might say that the defendant is a very valuable man.

He talks a lot.

He who said that up to the Supreme Court of Louisiana rendered decisions not in this case, when he said, what would typically be written on it?

And incidentally in one of his valuable threats towards the end of this matter in January of 1963, he even predicted your decision.

He said that he was going to be convicted in the lower courts but at the supreme law — the Supreme Court then would reverse it.

William J. Brennan, Jr.:

He said it would be unanimous vote or (Laughter)

Jack P.F. Gremillion:

I do — he didn’t get to that gentlemen.

He didn’t get to that.

But that’s definitely in all of that of course is in this particular record.

Well, I say —

William J. Brennan, Jr.:

May I just ask Mr. Attorney General?

Jack P.F. Gremillion:

Yes sir.

William J. Brennan, Jr.:

I gather this at 259, this association of armed robbers, that’s not part of the charge on which (Voice Overlap)

Jack P.F. Gremillion:

No, no, no —

William J. Brennan, Jr.:

This only goes to malice, is that it?

Jack P.F. Gremillion:

That’s right.

That was introduced.

That was evidence.

We introduced all these evidence to show malice on the part of the defendant because it was instances that related to this particular statement of November the 2nd, the —

Byron R. White:

But he made after — after he was in charged and concerning the charges.

Jack P.F. Gremillion:

Oh yes, absolutely, absolutely.

William J. Brennan, Jr.:

Well, I’m — I’m still quite — well, only the issue of malice and not to any charge.

Jack P.F. Gremillion:

You can show — you can show malice surrounding an event.

By circumstances that properly relate to it even before or after the particular instance, I think that’s universal.

I have no doubt about that.

And the judge only allowed that for the purpose of showing malice.

Now, first is when the judges testified that they were subjected to hatred, contempt, and ridicule.

The judge did not let them say what that was because he held that that of course would be his in which we know is correct, and of course, it was sufficient for the information and the charge to prove that they were subjected and that they knew that they got up and testified accordingly.

Hugo L. Black:

Had there been any other charges against any other people in your area in recent years?

Jack P.F. Gremillion:

On defamation?

Hugo L. Black:

On talking against judges, either federal or state.

Jack P.F. Gremillion:

No, I don’t think so.

There’s been none of such serious nature that I know of.

Hugo L. Black:

There have none?

Jack P.F. Gremillion:

There — there have been no — this is the only one that I know of.

Hugo L. Black:

That’s the only one you’ve ever heard of.

Jack P.F. Gremillion:

The only one I’ve ever heard of.

But of course, let me say this that all of these conferences that they had — the judges have and the District Attorney had concerning this matter, the judges never got up and made any public statements.

He was the only one.

And we proved that he made these statements deliberate, that he dictated to this reporter, that he did it with thoughtfulness, that’s all in Mr. Bernhardt’s testimony.

And if you repeated it and let him read it back to make sure that that’s what he wanted to say and as I say.

And I mean this at the very bottom of my heart that those judges were guilty of racketeering influence.

They got no business serving on that bench.

And the state proved its case.

He didn’t offer any evidence that what he said was true.

Jack P.F. Gremillion:

He didn’t offer any evidence that he had a reasonable belief that it was true.

And even so, the state showed ‘actual malice’ in the presentation of this case and the conviction should stand and I trust and pray that you would object this writ on the grounds that it was improvidently granted.

Thank you so much.

Byron R. White:

Mr. Gremillion, can I just have a moment?

Did you — did you indicate that this is the only Constitution under this defamation statute?

Jack P.F. Gremillion:

Defamation statute?

Oh no, no, no!

Byron R. White:

Was this frequently used?

Jack P.F. Gremillion:

We had a case in Louisiana which was decided December 16th.

We have a guy by the name of Marty defamed the District Attorney and the Supreme Court of Louisiana reaffirmed its decision in the Garrison case because the defense is there, well it’s the same as this particular case, on the same date.

The Supreme Court of Louisiana reversed the case of Mrs. Webster because she was not allowed or given the opportunity to prove that a statement that she made was true.

We’ve had a lot of defamation prosecutions.

But the only one — the only one that I was with Mr. Justice Black (Voice Overlap) was there any in New Orleans under this —

Hugo L. Black:

Yes.

In the statement about — statements made about judges, either the state or federal.

Jack P.F. Gremillion:

This is the only case — this is the only time that I know of that a District Attorney has called the judge that he’s supposed to cooperate with that he’s under the influence of racketeers.

William J. Brennan, Jr.:

Well I think that there are statements in Louisiana made about judges of the state and federal, aren’t there?

Jack P.F. Gremillion:

Well, there are plenty of statements.

Now, he would have said that this — this Court doesn’t know what it’s doing or these judges don’t know what they’re doing, something like that.

I’ve heard this Court criticize quite precipitously in Louisiana.

But nobody has said that you are influenced by racketeers.

And nobody’s called you sacred cows or said that you belong to an association of armed robbers.

I’ve been called a lot of things in my official conduct, the District Attorney supported my opponent in the last election.

We got —

Byron R. White:

Well, these armed robber charge isn’t here, is it?

It isn’t what they want him to be prosecuted.

Jack P.F. Gremillion:

No, that was introduced to show the state of his mind that that was malice, that’s the only way we could prove it but then he didn’t take the stand.

Byron R. White:

I suppose you can file another charge of this statement.

Jack P.F. Gremillion:

Oh yes, I’m pretty sure.

Byron R. White:

What — but — but in any event this criminal — criminal defamation statute is used frequently.

Jack P.F. Gremillion:

Yes, very much so.

There’s the Lambert case, the (Inaudible) case, the Jones case, the — but — that I know are 25 or 30 of them.

Byron R. White:

What — what — what do you think that’s pretty good to all the interest of the state is that is getting into deciding that case?

Jack P.F. Gremillion:

I think that the interest of the state is exactly what I stated before.

That the honesty of these men were at stake.

And if they had been guilty of racketeering influence, they had no business serving on the bench.

And that was the reason that the state had at this case.

You see, the judges filed —

Byron R. White:

You did not state that —

Jack P.F. Gremillion:

— may I say this Mr. Justice White.

After he made the statement, the judges filed an affidavit in the District Attorney’s office.

And of course the District Attorney can now process any case he wants.

And he has one of these first assistants coming to court and now processed the affidavit that the judges made.

So then the judges met en banc and ultimately to file this.

This is the only way we could have done it, because under the Constitution of Louisiana, the Attorney General has the interest of the state, he can intervene, he can supersede, he can dismiss, or anything.

And I would — it came in there because there was no other way that we could determine the truth of the matter.

Byron R. White:

Well do you — do you feel that the state has been interested in vindicating the reputation of the petitioners?

Jack P.F. Gremillion:

I do because of the fact that if these judges were guilty of those charges, they’re not only violating the Code of Ethics, they were violating the law of the State of Louisiana and they should be prosecuted.

And if I could have found evidence, I investigated a third and if I could have found evidence that there was any sort of a bribe or racketeering influence by New Orleans racketeers on these judges, I can assure you I would have brought it to the grand jury of prosecutors.

Byron R. White:

You could have — the state could have found the truth of this matter.

You apparently conceded it in finding, what’s the result of the truth of the matter in the grand jury investigation right here.

Jack P.F. Gremillion:

We didn’t have a grand jury investigation.

Byron R. White:

Well, anyway you — you feel that you — you prove what the truth of the matter was.

Jack P.F. Gremillion:

I pro — I think so and I think that the proof of that putting is the fact that he made these — he made the statement on November the 2nd of 1962 falsely, that there was no truth in it, and that he did it maliciously.

Byron R. White:

And then why did — but why don’t you determine the truth of the matter and why — and you know that it is true and why — what — what’s the statement that the — then prosecute him?

Jack P.F. Gremillion:

Because he had violated the law.

We —

Byron R. White:

There was a largely (Voice Overlap) on constitutional grounds to me and then —

Jack P.F. Gremillion:

I was ordered to do this by these particular judges.

And then that was — of that great of importance.

Byron R. White:

Why did you say that?

Jack P.F. Gremillion:

What’s that?

Hugo L. Black:

What did I understand you to say?

Jack P.F. Gremillion:

The judges met en banc and ask me by order, would I file this Bill of Information, because they were anxious to find out their racketeering influences themselves.

This was a very hidden controversy in — in Louisiana, in the City of New Orleans.

And somebody had to do something about it.

William J. Brennan, Jr.:

Incidentally Mr. Attorney General, have all these other prosecutions under the facts that you’ve mentioned?

Have there been constitutions with statements about other public officials, you mentioned one —

Jack P.F. Gremillion:

The ladies — Lambert case was a statement that the District Attorney had put a guy in the penitentiary, put a prison into penitentiary on —

Hugo L. Black:

That’s what he thought of.

Jack P.F. Gremillion:

That he illegally committed to the penitentiary on urgent testimony of a certain prison.

William J. Brennan, Jr.:

And what — and these other prosecutions, they also were — were statements about public officials?

Jack P.F. Gremillion:

They were affirmed, yes by our Supreme Court.

In other —

Byron R. White:

Well in the — then he thought in the state court and you have to do this in order to avoid the truth to proceed.

Jack P.F. Gremillion:

Yes.

Now — now let me — in this Lambert case, the District Attorney was defamed and we have a procedure.

Well, if the District Attorney is interested, he’s got to refuse himself at the court — a request to the court and that is if he’s interested in the prosecution, do you understand?

And the only person that can prosecute — the court has got to find an attorney within the district who has the capabilities of a District Attorney.

And then if he can’t find any, he certifies that to the Attorney General.

And the Attorney General can assign another District Attorney to prosecute that particular case.

Or I could go in and prosecute it myself because I have that authority.

Earl Warren:

General, I noticed that the gist of this complaint is that there is vice, and crime, and corruption on Bourbon Street in New Orleans.

Is there any proof in — is there any proof of the fact that there is no such vice or corruption on Bourbon Street or–?

Jack P.F. Gremillion:

Oh, no.

No, I don’t — I don’t make that contention Your Honor.

I’m — I’m sure that a place like Bourbon Street that there is a lot of vice there.

Earl Warren:

Okay, but you — just a moment, do you say they allow vice there?

Jack P.F. Gremillion:

No, I didn’t say that.

I say I — I presumed that there is, I assume that there is because there has been several suits that the District Attorney filed, that he padlocked some of the places.

Earl Warren:

But who — who would — you presumed that they would let it.

Who would do that?

The police who were — who were assigned to him and that these judges —

Jack P.F. Gremillion:

Somebody —

Earl Warren:

— must experience only, it must be his only investigators?

Jack P.F. Gremillion:

Somebody would evidently be lax somewhere along the line.

But you see he — he claims in his statement that the judges —

Earl Warren:

But would you have any — would you have any jurisdiction over that?

Jack P.F. Gremillion:

No, I don’t think so.

That would be up to the District Attorney or it would be up to the police department.

Earl Warren:

I thought you could still foresee that anyone in — in the event could —

Jack P.F. Gremillion:

Oh, I could go in there but I don’t make it a practice to run around in the State of Louisiana superseding District Attorneys and so forth unless they’re actually involved — or involved and the situation is of such gravity that it necessitates it such as the case here.

But you see he claims that the judges blocked his investigations and we proved on the trial of this case that the judges did not, that that was false, that they wanted to cooperate with him.

And if they did cooperate with him, that they approved motions for expenses, and that he had 12 policemen that could do — go do undercover work if he wanted, and so forth.

Earl Warren:

The policemen are the ones who — who have the responsibility of policing Bourbon Street, do they not?

Jack P.F. Gremillion:

Well, there’s no doubt about that, Your Honor.

Earl Warren:

There is no doubt about that.

Jack P.F. Gremillion:

No doubt about that.

Earl Warren:

Would they — if there was this vice and corruption there, would they be likely on assignment to him to clean that place up?

Jack P.F. Gremillion:

Well, I assume that they would be — yes that would be the logic between them.

Earl Warren:

Even though as you say you assume that they permitted the vice to continue there.

Jack P.F. Gremillion:

With that assumption, yes, I agree.

Earl Warren:

They don’t seem to fit with the —

Jack P.F. Gremillion:

Well, I can’t change the facts, Your Honor.

I mean –-

Earl Warren:

We can’t tell you the fact that there was vice and corruption?

Jack P.F. Gremillion:

I said in my opinion — I said in my opinion, I assume that there was.

And because of the fact that the District Attorney has filed padlock proceedings on several places and has actually close some of them.

I’m trying to be as frank and truthful as I possibly can.

Earl Warren:

Well, he sets here that no, there was — we — we have — there’s no question raised about expenditures until the first beer drinking joint began to cave in.

Jack P.F. Gremillion:

Yes.

Earl Warren:

That’s his — that’s his complaint.

Jack P.F. Gremillion:

Yes but he didn’t prove that.

He didn’t prove that the judges stopped his — his so-called funds until that happened.

That was absolutely repudiated by the testimony of the judges.

That’s the very point I’m coming to, that this thing was so grave and that there was — that this particular charge would really amount into bribery by racketeers of the judges that something had to be done about it.

The truth had to come out.

And that was proved to be deliberately false by the testimony.

There’s no evidence in here to show that that was even — that he even thought that.

He’d had a reasonable belief of that.

Hugo L. Black:

One of the judges called you and to audit you to prosecute him.

Jack P.F. Gremillion:

I didn’t have to do it.

Hugo L. Black:

You didn’t have to do that.

Jack P.F. Gremillion:

I had that discretion under Article 7, Section 56.

But as I told this Court —

Hugo L. Black:

They would have the same time to get to you that they’re reasonably charged with.

They had the right to use the Attorney General to investigate Bourbon Street.

Jack P.F. Gremillion:

No, they did not.

No one ever ask me to do that.

Hugo L. Black:

— what they wanted you to do —

Jack P.F. Gremillion:

Now frankly — frankly it sets about superseding the District Attorney.

In the case of Kemp versus Stanley, our Supreme Court held that the Attorney General could not supersede a District Attorney who is willing to do his duty.

And so here Mr. Garrison has been working hard and has been closing up quite a few places.

So I would have no actual authority to supersede him unless he had actually refused to do his duty, do you understand?

But —

Hugo L. Black:

Well, he has not refused to do his duty in that connection?

Jack P.F. Gremillion:

No, not that I know of.

But he claimed that the judges had kept him from doing this.

And that was absolutely false because as I said previously, time and time again, the record shows that he had clear funds available.

The record shows that he had these 12 policemen to do his work.

Jack P.F. Gremillion:

And that the judges in no way had ever issued any messages to him or any orders to him to stop his crime prevention work.

I thank you.

Anymore questions?

Earl Warren:

No, I think none, General.

Eberhard P. Deutsch:

Thank you.

I may have just (Voice Overlap)

Earl Warren:

Yes.

Eberhard P. Deutsch:

Just a few more moments, I think I can answer your question, Mr. Chief Justice on the record.

In the first place in the supplemental brief, a question was just asked a few moments ago for the second time.

In the supplemental brief of the State of Louisiana on page 9, a short paragraph of the second full paragraph on that page.

Prior to October 1962, expenditures from the fund for vice investigations by appellant’s office had been approved by individual judges.

They had been approved.

Now, page 376 of the record, one of the judges has questioned on the subject with regard to prior administrations of District Attorneys.

Let me ask you, this judge, “if you don’t feel the District Attorney has the discretion, can you point to any single case in the previous District Attorney’s administration that you refuse to authorize, meaning as you’ll find in the context, these orders were investigation funds?”

And the answer is “No, I don’t remember any.”

So that they were always approved up to this time as appellant said when the beer drinking joints have began to get closed or —

Hugo L. Black:

How long had this man been elected?

Eberhard P. Deutsch:

About five months I think, yes.

He was — took office in May and this happened in —

Hugo L. Black:

The record —

Eberhard P. Deutsch:

— statement was made in November of the record.

Hugo L. Black:

Did the record show whether he ran on a platform of doing this which he says he was trying to do it?

Eberhard P. Deutsch:

I think the Attorney General made that statement.

There isn’t any question and after all, it’s almost a matter of public record of which I believe you could take judicial notice if it’s not in there.

In so many words, he ran independently.

He had no political party.

There isn’t any statement there that he said the judges were an association of armed robbers.

He says, “I have no organization.

My opponents are the association of armed robbers.”

He wasn’t talking about the judges.

Eberhard P. Deutsch:

That’s — a string that that language won’t take —

Potter Stewart:

Who was he talking about?

Eberhard P. Deutsch:

Pardon?

Potter Stewart:

Who was he talking about?

Eberhard P. Deutsch:

The political organizations which had opposed him in his elect.

I have no — he says that.

That’s expressed on opponent, I think.

I have no organization.

My opponents are the association of armed robbers, meaning the professional political organizations which had opposed him in his election.

He was elected —

Tom C. Clark:

Well I —

Eberhard P. Deutsch:

Pardon?

Tom C. Clark:

He had the —

Eberhard P. Deutsch:

What maybe the opin –?

Tom C. Clark:

Well I — are the association of armed robbers.

Eberhard P. Deutsch:

I think — well, I didn’t have it performed but here the sentence before that says, “I have no organization —

Tom C. Clark:

It turned to them.

Eberhard P. Deutsch:

That’s — and that follows right with it.

“I have no organization, the other officials are the association of armed robbers.”

Hugo L. Black:

Do you think that statement was what the people used they called to proceed but they won’t admit it at least that they were bad people and he was a good man.

Eberhard P. Deutsch:

Well, I don’t think there’s any question you could ask and he would answer that question affirmatively.

Earl Warren:

Mr. Deutsch, — Mr. Deutsch, how long was he in office before this judge attacked him for —

Eberhard P. Deutsch:

For, well —

Earl Warren:

— for suggesting the calendar?

Eberhard P. Deutsch:

This controversy started three or four months later, I think.

I suppose I can get it.

The statement which is the subject of this — once the subject of this prosecution was made on November 2nd, published on November 2nd as I recall it.

He took office in May.

Now, there had been a building up of the controversy and statements back and forth when the retired judge made his statement charging appellant with responsibility for the backlog of these cases, that wasn’t the first thing that was said on this subject that had been going back and forth.

Earl Warren:

Very well.

Potter Stewart:

Do you think it’s a — is there any difference whether this statement, they maybe run and attacked upon these judges in their official rather than their personal character?

Eberhard P. Deutsch:

Well, I think the judgment must go with me in either event but I do think it makes that difference because it brings it under the scope of what we have called sedition in the last 175 or 100 maybe year.

Potter Stewart:

You say that it attacked upon them solely and exclusively in their official capacity?

Eberhard P. Deutsch:

Would — would make it sedition in the — shall I say appropriate sense.

I don’t know whether it was an offense for him to make the statement as to what he thought this Court would ultimately do in this case.

I certainly had my very strong views and I ask you to support it.

Jack P.F. Gremillion:

Mr. Chief Justice, may I ask you one thing?

Earl Warren:

Yes, General.

Jack P.F. Gremillion:

What he — what Mr. Deutsch is just saying about the organizations, that’s his interpretation of it but he, the District Attorney, never did explained that and there’s nothing in the record to show that he was talking about a political organization.

So I don’t know what he was talking about but I do know that he was in a controversy with these judges and that’s when — that was a subject matter of his speech at that particular auditorium.

Earl Warren:

Yes, very well.