Howard v. Lyons – Oral Argument – December 08, 1958

Media for Howard v. Lyons

Audio Transcription for Oral Argument – December 09, 1958 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Earl Warren:

Number 57, W. E. Howard, Jr., Petitioner, versus Kenneth T. Lyons and Joseph S. McAteer.

Paul A. Sweeney:

May it please the Court.

Earl Warren:

Mr. Sweeney.

Paul A. Sweeney:

This case is here on writ of certiorari to the United States Court of Appeals for the First Circuit, draws out of an action for libel brought by two civilian employees of the Boston Navy Yard against Admiral Howard, the commander of that yard.

The alleged ground of libel, the report issued by Admiral Howard and transmitted to his superior, copies of which he also furnished the members of the Massachusetts Delegation.

The District Court entered judgment for the petitioner on the ground that the pleadings and affidavits conclusively established the statements attributed to petitioner were published by him on the discharge of his official duties and in relations to matters committed to him for determination.

On appeal, the Court of Appeals affirmed on the part as to the communication to his superiors but held that the communication to the — or the publication to the members of the Congressional Delegation of Massachusetts was at the best qualifiedly privileged and remanded the case before the proceedings in accordance with its opinion.

This Court has now granted certiorari.

The facts in this case are relatively simple.

And they are comprised the pleadings and two affidavits filed in support of a motion for summary judgment.

The respondents here, the plaintiffs in the District Court, Lyons and McAteer, were civilian employees of the Boston Navy Yard.

They were also officers of an organization known as the Federal Employees Veterans Association with purpose was to bring together an association of veterans employed by the Federal Government to protect all veterans’ rights which are conferred by various laws and regulations, and also to seek to better the affairs and the rights of veterans employed by the Federal Government.

Now, the Navy has an industrial relations policy which applies particularly on navy yards in which there’s an encouragement of representative groups forming and dealing with the — the management of the stations.

I believe in Massachusetts at the Boston Navy Yard, there were probably 30 some odd organizations represented.

They would represent labor unions, veteran’s organizations and different groups who are in a position to speak for and represent the employees.

In 1949, the FEVA, this Federal Employees Veterans Association, was recognized as a bargaining unit.

It originated in this post number 1, was an association of the employees at the Boston Navy Yard.

That recognition continued for a number of years, but there’s no question but that the FEVA was extremely militant in undertaking to protect the rights of its members.

It represented them at grievance hearings.

It was instrumental in certain litigation, some of which was successful and bettered the rights of the members of the association.

The FEVA also put out a week — a monthly newsletter, which was distributed among its members which were given to members of the Congressional Delegation of Massachusetts and released to the press.

Over a period of time, these newsletters yet, became extremely critical of management, the Navy Yard management.

They went further.

They criticized the policy of the Navy Department as such, the executive department as such.

It appeared about the beginning of 1955, that certain complaints they had made at the Massachusetts Delegation resulted in an investigation as to the personnel policies and other matters being pursued at the Boston Navy Yard.

At the conclusion of that, the investigation, it was decided and determined that no violations had occurred.

Shortly thereafter, the petitioner here, Admiral Howard became Commandant of the station and he immediately began to encounter difficulties with the representatives of FEVA.

Now, these matters are set forth in this report which was sent to the Bureau of Ships and the Bureau of Industrial Relations.

And he comments in that, that the — that with all other organizations they found them were beneficial and helpful, that the tendency of this organization was to magnify trivialities, to belittle management and you could only conclude that their whole purpose was to attack managements, to complain, to keep things in the turmoil.

And as they characterized it, the thing was openly subversive as to the management of the station.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Paul A. Sweeney:

I think that the words which are relied upon as probably being potentially libelous in this, but if they are obviously referred to management.

They also said that it was bad on the morale, both of the management itself and of other employees.

As a result thereof, he decided to withdraw recognition of this union as a bargaining unit.

As I said before, copies of this report were sent to the — through the Commandant of the First Naval District to the Bureau of Ships and Bureau of Industrial Relation of the Navy Department.

He also sent copies of the report to all members of the Massachusetts Congressional Delegation.

The Commandant of the First Naval District, Admiral Schnackenberg, through the Public Information Office of that district, released copies of this to the press.

This occurred on September 9, 1955.

A year later, presumably, just before the local statute of limitations in this suit was instituted.

Now, it may have the usual allegations of libel that it was malicious, false, for the purpose of — that the defendant there, petitioner here, departed entirely from his duty and unusually used it as a subterfuge for the purpose of maintaining this malicious attack upon the two plaintiffs who are officers of the FEVA, one of whom was identified by name in the report, and the other by description.

An answer was filed in which it was sort of one count of the answer and denial in the manner in form because, while this report was attached to the complaint it did not have the exhibit, so that went with this.

Also, as a defense, it was alleged that the statements were true, that they were in the performance of his duty.

And finally, there was a complaint that they were absolutely privileged because they were matters upon which he acted in the performance of his duty.

Before any evidence was taken, a motion for a summary judgment was filed, and two affidavits were submitted in support thereof.

One affidavit by Admiral Schnackenberg, the Commandant of the First Naval District, recited that he was Admiral Howard’s superior.

And on the date this was issued to Admiral Howard was in the exercise of his functions and duties as Commander of the Boston Navy Yard.

That among his duties was to notify the Bureau of Ships and the Office of Industrial Relations of the Navy Department of any significant changes and personnel policy that took place.

And that this was the title, a report which should be made.

He also stated that one of Admiral Howard’s duties was to keep the Boston — the Massachusetts Congressional Delegation advised of any significant personnel changes such as this.

He said that the release to the press had been effectuated by his office.

Admiral Howard also submitted an affidavit in which he said that he had performed these acts in accordance with his duties, that his first duty was to make these reports or a report of any significant personation of chain such as this was to the Bureau of Ships and the Bureau of Industrial Relations.

And that it was also one of his duties to send copies of that to the Massachusetts Delegation.

He denied that he had made any release to the newspaper.

This affidavit was uncontroverted, and as I noted before in my statement that the District Court made a finding that the pleadings in the affidavits showed conclusively that the statements attributed to Admiral Howard were published by him in the discharge of his official duties and in relations committed to him for determination.

It — and the judgment for the defendant, dismissed the complaint.

On appeal —

Earl Warren:

Well, Mr. Sweeney, was that a finding that he did not give it to the press?

I understood you to — to say that.

Paul A. Sweeney:

I don’t think he dealt with the question as to whether that it was given to the press because he would have held, I think, that they had Admiral Howard giving it to the press.

It probably would have been in relation to his duties because Admiral Schnackenberg did testify that it was part of Admiral Howard’s duties to give these to the press.

However, the undisputed evidence, both from Admiral Schnackenberg and Admiral Howard is that the release was by Admiral Schnackenberg and by not Admiral Howard.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Earl Warren:

Both to the press and to the Congress?

Paul A. Sweeney:

No.

I admittedly, Admiral Howard published, sent these letters to the congressional delegation.

There’s no question about that.

Earl Warren:

And — and admittedly, he did not put out the — the press publication?

Paul A. Sweeney:

Well, that it’s uncontroverted.

There’s only two statements are —

Earl Warren:

Yes.

Paul A. Sweeney:

— one by the man that said, “I did it,” and the other by Admiral Howard who said, “I didn’t do it,” and there’s no evidence to the contrary.

The District Court did not bother to make that finding.

The Court of Appeals did discuss it some.

Now, the Court of Appeals stated that there were three publications alleged in the light of the complaint.

First, the publication of sending the report to its superior officers, the Court of Appeals stated that on the basis of the overwhelming rate of precedence and authorities that that was an absolutely privileged communication and that they would not look behind that for any element of malice.

As far as the release to the press was concerned, they stated that that apparently had been abandoned on appeal, which I think was correct.

However, they went beyond that and said, “Even if that had not been abandoned, the evidence here clearly shows that if there had been any — the publication rather had been by Admiral Schnackenberg.

And that while Admiral Howard may have known that when he put this in channels, it would go through Admiral Schnackenberg’s office and be released.

Nevertheless, that was an action over which he had no control with the release of that matter was one of which provided for by Navy regulations that Admiral Howard was under a duty to make this report.

And when he made it and put it in channels, he was not responsible and could not be held for a publication even though he might have anticipated that would be what would happen when he put it in channels.

On the question of release to the publications to the Congressmen, I’m a little bit unable to follow the theory of the Court except that they said that they did not believe that the doctrine of absolute liability should be expanded.

They did not dispute the evidence that this was an action performed by Admiral Howard in the carrying out of his duty.

It was a duty imposed upon him by — I assume, by regulations and by orders of his superiors.

Charles E. Whittaker:

That is not quite correct, sir.

Does not the affidavit obviously relies (Inaudible) there’s a separate hearing (Inaudible)

Paul A. Sweeney:

Well, I think there are two affidavits if Your —

Charles E. Whittaker:

I’m thinking of the one in relation to the company that was sent to members of Congress (Inaudible)

Paul A. Sweeney:

Just a minute, if Your Honor please.

The — I’m — I’m reading now if Your Honor please, on the affidavit of Admiral Schnackenberg, Admiral Howard’s immediate superior.

It’s on page 21 of the record.

“Included among where Admiral Howard’s official duties as Commander of Boston Navy Shipyard, is and was on September 8, 1955, the furnishing of copies to the Massachusetts Congressional Delegation of his official notification of the Bureau of Ships of personnel action taken by him as Commander of Boston Naval Shipyard.”

Now, that was Admiral Howard’s superior and he said that was one of Admiral Howard’s official duties, to furnish this.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Paul A. Sweeney:

I think here’s an affidavit is much more significant than would be Admiral Howard’s affidavit, which might sometimes be regarded as self-serving.

Admiral Schnackenberg was the man in immediate charge of Admiral Howard and undoubtedly knew what his duties were.

Now, it is not disputed by the Court of Appeals, by anyone else, that this was not part of his official duties.

Had there been any doubt on this question, undoubtedly, they would have remanded the case for further evidence or for a more specific finding on that question.

It was accepted in the case that this was one of his duties imposed upon Admiral Howard by the Navy Department.

Charles E. Whittaker:

(Inaudible) towards this was — this (Inaudible)

Are you referring to the copies that went to the Massachusetts Delegation?

Paul A. Sweeney:

Delegation, yes, Your Honor, because that’s the only thing — that’s the only point on which the court below held that there was not absolute privilege.

They held at the best that was a qualified privilege.

Charles E. Whittaker:

The defendant who was here as I understand you now, he was sending those copies by Admiral Howard through the Massachusetts Delegation was under the disposal of duty.

Paul A. Sweeney:

Yes, Your Honor.

Charles E. Whittaker:

(Inaudible) to be.

Paul A. Sweeney:

I — I have never heard it disputed.

It was not disputed in the court below and I would make this observation, if I might, Your Honor.

Had the court entertained any doubt about that point, that it was not one of his official duties, undoubtedly, they would have remanded it for further evidence on that — that point because this was up on a motion for summary judgment which had been granted.

And if there had been some doubt, they would have discussed that point in their opinion.

They accepted it.

It’s also accepted in — that a — that — the pattern in the case it seems to me indicates that the court below rather definitely accepted these findings.

Now, if Your Honors please, I would like briefly to advert to the — in a defamation action, what elements to argue, considered simply, can now the ground here.

In the defamation action between private parties, truth is a defense, but if the falsity has been established, malice is presumed.

And so, the burden is upon the defendant in a case where if he has not been able to establish the truth of these defamatory statements, also, to bear an over, almost overwhelming burden to offset malice.

In qualified privilege, again, truth is normally a defense, but the burden shifts and is necessary in the place of qualified privilege for the plaintiff to establish malice either by extrinsic evidence or by evidence, intrinsically, that the statement is so far so recklessly made with malice, may be drawn by the jury.

Both the — the question of malice and both these instances are questions from the jury.

In a situation of absolute privilege, the only question that’s for examination by the Court is whether the person is an official and has acted in the course of his duties or a matter as this Court has stated in Spalding versus Vilas that has more or less relation to those duties.

Now, absolute privilege, as far as the Government is concerned, exists in three fields.

In the legislative field, it exists by reason of a constitutional provision.

In the judicial field and then the executive field, I think that the cases are sufficiently old that you would call them a — a common law almost in that state, because as far as the judiciary is concerned, they date back to the days of Lord Cook.

It has also been extended by the judiciary — by a judicial decision to the executive departments.

Now, the reasoning at the back of this is, not that anybody should protect a “be known” person, a malicious person or anything of that character, but that because of the — a position that people have.

The decisions they have to make, that they should be able to make those decisions, to utter those statements and to do the things that are necessary to carry out their duty, without feeling that they can be called to an account by any private individual who feels that they have been outraged or hurt or who alleges that they have by these actions.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Paul A. Sweeney:

That it’s been remarked in the field of judicial and of the immunity of the judiciary, that cases are so bitterly contested that the losing person usually believes that the only way the decision against him can be explained is because of corruption on the part of the judge.

At least in a lot of cases, so that they were open to them, they would consistently bring suit against judges in the lower courts.

Now, in the judicial field, the absolute immunity, the extent is not only their actions, of judges in their judicial capacity, but as this Court held in Bradley versus Fisher, that it’s necessary that they had — have — that it was necessary for them to have the jurisdiction to perform the particular act that they did, but only that they have jurisdiction, generally, in that field.

It extends to petty and grand jurors.

It extends to statements made by counsel before in a judicial proceeding and also the testimonies of witnesses.

There’s a complete immunity in all judicial proceedings.

Now, this Court has only passed on three occasions upon the absolute immunity insofar as the executive branch is concerned.

The leading case, of course, is Spalding versus Vilas, a case in which Mr. Justice Harlan spoke for the unanimous court in 1895.

That case involved a — an action against the Postmaster General for a — for effect — would in effect be defamation.

He had sent out certain letters which they claimed had bad effect.

And then this Court reviewed all the judicial — all the decisions involving the absolute immunity of the judiciary.

That drew from them what was considered by it, to be the underlying principle, and that is, that public interest was the controlling — the matter of here.

And that public officials, as well as the judiciary had to be able to act freely without feeling that they would have to be called for it to account on suits by private individuals for their acts.

That, not only, of course, it’s been pointed out in many of these decisions, that other matters are open for this discipline.

Presumably, a Cabinet officer that transcends his functions, it’s something that was corrupt or evil could be removed by the President, could be impeached.

Lesser officials, of course, they’re even more subject.

They’re subject to the definite discipline of the Department.

Now, the test of these cases as the cases have evolved, and that there are a very large number of them in the lower district courts.

The Courts of Appeals and then the District Courts themselves, are that — it must — it’s a not — that it’s — it’s either in the course of the performance of their duties or for an officer to have discretion either to act or not to act where it has more or less relation to their duties.

It must not be an act that’s imposed on him by law.

It’s enough that it’s an act that he can exercise by his discretion.

Now, as Your Honors, we’ll proceed in this case as much an hour because here, the duty of sending these reports to members of Congress was placed upon Admiral Howard by the Navy Department.

Now, I would just like to advert to one fact here in our — I just checked our index.

In 10 of these cases involving absolute immunity, certiorari has been denied.

I know that there at least 10 or 15 more of them where it’s been denied.

I know that that ordinarily does not indicate a feeling on the part of this Court, but I do submit that this case as you can steadily have been counting that this Court since the decision in Spalding versus Vilas, and that the decisions have been uniformly denied with one exception.

And that was the case of — that came up, Yaselli versus Goff came up from the Second Circuit, it involved an action for malicious prosecution against the Special Assistant to the Attorney General.

These are very acts in opinion by the Second Circuit in 12 F.2d.

It was affirmed by this Court in a per curiam opinion in which they relied upon only two cases that was Bradley versus Fisher and Alzua versus Johnson, both cases hearing the immunity of the judicial.

The other thing assigned in this case as a matter of support in this Court was the Court’s recent decision in the last term, in Barr versus Matteo, where this Court vacated a decision of the Court of Appeals for the District of Columbia Circuit and sent the matter back for a decision as the Court could do so on the question of qualified privilege.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Paul A. Sweeney:

In that case, however, there had been a complete record made.

Would you mind giving me the name of that Second Circuit decision?

Paul A. Sweeney:

Yaselli.

Y-E —

Yes.

Thank you.

Paul A. Sweeney:

— S-E-L-L-I versus Goff —

(Inaudible)

Paul A. Sweeney:

— 12 F.2d 396.

They also, if Your Honor please, had drew very largely upon the learning to be acquired from the cases involving immunity of the judicial department.

Now, ordinarily, qualified privilege does not give to the official the type of protection that would be needed if he has to perform his duties fearlessly.

In the first place, presumably in a lot of these instances, you will have overstated these facts, there may be a misstatement.

As I said, normally, truth is a defense.

I think there’s one —

Charles E. Whittaker:

(Inaudible)

Paul A. Sweeney:

Pardon?

Charles E. Whittaker:

You said normally, truth is a defense?

Paul A. Sweeney:

Yes, Your Honor.

Charles E. Whittaker:

(Inaudible) no exceptions?

Paul A. Sweeney:

Well, there’s —

Charles E. Whittaker:

But suppose they have —

Paul A. Sweeney:

Well, I —

Charles E. Whittaker:

(Inaudible)

Paul A. Sweeney:

There’s a statute in Massachusetts that if you have malice, truth is no defense.

Charles E. Whittaker:

Well, maybe in some States (Inaudible)

Paul A. Sweeney:

There were in some States peculiarities but — that’s why I say normally and there’s also certain other States which have something very similar to this which constitutes an invasion of the privacy.

And if you run into one of those things, they’ve are supposedly assimilated the defamation that I use the term “normally” to take care of those situations.

It’s not a universal rule, but it — it does normally apply.

William O. Douglas:

Your — in speaking of civil — civil suits for libel and not criminal?

Paul A. Sweeney:

Civil suits for libel.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Paul A. Sweeney:

I think a number of these things — I hadn’t looked into that field, if Your Honor please, to any great extent.

I know there are States that make it criminal to invade somebody’s privacy.

In other words, the result may also be a civil relief but they’re — they’re also made criminal.

I did notice one thing and that is in France, any body that disturbs a person’s privacy after 10 years, it’s a criminal offense there.

10 years is supposed to be the statute limitations on a person’s reputation.

I don’t know of any community in this country that has that particular law.

Hugo L. Black:

Do you think that this defense is a good defense under the laws of Massachusetts?

Paul A. Sweeney:

Yes.

I would think so, Your Honor, because I’ve noticed —

Hugo L. Black:

Are you defending on the law of Massachusetts?

Paul A. Sweeney:

No, I think this is definitely, should be a federal question, if Your Honor please.

Hugo L. Black:

You’re arguing it all together on that basis.

Paul A. Sweeney:

I did, Your Honor, but I know — as the court below could find nothing in Massachusetts’ law to show that it’s any different from laws of other States.

Hugo L. Black:

Why do you proceed it on the basis that you do not have to consider the fact that this was turned over to Howard?

Howard turned it over with knowledge and the regular routine has to be given to the paper that’s the — your adversaries — the other position made.

Paul A. Sweeney:

Well, I agree with the court below that the Navy Department has an involved system governing press releases.

Their policy basically is that the public should be informed involving matter that comes through them unless it involves security matters or there are some other specific reasons for not making it public.

They have instructions issued.

There’s an information officer in every desk whose business it is to look over matters coming through, and if he thinks they’re of interest to the public to release the matters.

This is a matter of Navy policy.

Now, Admiral Howard, if you honor the duty, to make this report, would have to send this report through their Commandant of the First Naval District and if it’s Navy’s policy to make these things public, there’s nothing he could do to stop it.

The point is he had determined that he was — as a change in personnel, he was withdrawing recognition from FEVA.

And that was a matter that he felt it was necessary for him to report to his superiors.

Admiral Schnackenberg took that same position.

Now, but when necessary for him to report that to his superiors, that maybe decided to intercept it along the way and make it public, there’s nothing he could do about it.

He could not refuse to make the report.

That’s the reasoning of the court below and I think that’s the reasoning that applies to this case.

Earl Warren:

Mr. Sweeney, would you be here if it was not his precise duty to release this to the Congress to the admiral duty to do that but hadn’t done it?

Paul A. Sweeney:

Now, I would have said that it had more or less relation to his duties.

Yes, Your Honor, I would still be here.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Earl Warren:

You would have to be —

Paul A. Sweeney:

There’s two — there’s two things on this.

It’s either, first, if it’s his absolute duty, I do not think in those instances it’s really (Voice Overlap) —

Earl Warren:

But do —

Paul A. Sweeney:

— his actions.

Earl Warren:

— they have to — let’s just say a positive duty.

Paul A. Sweeney:

A positive duty.

All right.

Earl Warren:

Yes.

Paul A. Sweeney:

That is in response and the directions of his superiors.

And then in fact it’s his superiors’ act when he does something —

Earl Warren:

Yes.

Paul A. Sweeney:

— like that.

Earl Warren:

Yes, I —

Paul A. Sweeney:

Now —

Earl Warren:

— I follow you on.

Paul A. Sweeney:

So that —

Earl Warren:

Now, suppose it was not his duty and he just chose to — chose to —

Paul A. Sweeney:

Then, I think —

Earl Warren:

— a concern.

Paul A. Sweeney:

— I think it’s a question you’d have to find out if that had more or less relation to his duty.

In other words, had there been enough dealings with the members of the Massachusetts Delegation to indicate that this was a desirable and good thing to do.

He might make an error of judgment, but nevertheless, if he thought that because of the relationship that existed between the Navy, the Navy Yard and the members of Congress, it was a desirable thing to do, that is, I would say that’s something that falls within his discretion.

That would be my argument in that case.

In other words, this is the (Voice Overlap) —

Earl Warren:

Whether he was given such discretion specifically or not.

Paul A. Sweeney:

Yes.

It would be more or less of an incident to a person running a — running a large naval installation in which I’m sure the Congressional Delegation of Massachusetts had a very great interest.

Earl Warren:

Well, really?

Then you make no distinction between it being his duty in this case to send it to Congress and — and on the other hand, his feeling that it might be helpful to do it.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Paul A. Sweeney:

Oh, I do make a distinction, Your Honor.

I think the second is a case where you’re — it’s possible to say there was an abuse of discretion on his acting pursuant to a positive order.

He had no discretion.

It was his duty to do it, and his act is the act of his superiors.

Earl Warren:

Yes, I’m with that.

Paul A. Sweeney:

And so that this case, to my mind, is a very simple case.

It does not offer some of these more difficult facets that I think would exist in other fields.

And now, there’s just one thing that I would like to touch on.

That is a — as I say the case law has extended this to officials of various types.

It does not depend upon the office they hold.

It depends upon the type of the duty they are performing that is one that’s been placed upon them by law or by orders of their superiors or if they have a discretion to act in a certain field, that’s the public policy as believed to be served by them exercising unfettered discretion in acting within the discretionary field that they have.

There’s a — a large number of cases and as I say, they’ve been consistently held that they’re not reviewable by the Court.

Now, if I could come back —

Potter Stewart:

Mr. Sweeney —

Paul A. Sweeney:

— to what —

Potter Stewart:

I — I want to be sure (Inaudible) the cases in this Court, all the Government officials are immune, absolutely immune, have to do with department heads, do they not?

Paul A. Sweeney:

That’s right, sir.

Potter Stewart:

(Inaudible) officers.

Paul A. Sweeney:

Yes.

There’s just the one case —

Potter Stewart:

Yes.

Paul A. Sweeney:

— Spalding versus Vilas.

Potter Stewart:

Right.

Paul A. Sweeney:

And we’ve dealt with that.

Potter Stewart:

Well, how about the — now, the (Inaudible) case was in the Court of Appeals.

Paul A. Sweeney:

That was in Court of Appeals.

We rely a lot on those cases, if Your Honor.

And we always — they are certiorari-denied cases.

(Inaudible) there’s a number of those cases.

Potter Stewart:

Now, on those — officials of that type, of course, have a great deal of policy making power and policy making duties, a very great deal of discretion, do they not?

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
Audio Transcription for Oral Reargument – April 21, 1959 in Howard v. Lyons

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Paul A. Sweeney:

That’s correct, sir.

Potter Stewart:

And isn’t that the basis on which absolute immunity was placed by the courts?

Paul A. Sweeney:

It depends upon the degree of discretion of what they’re doing.

As I understand, if I could just deal with another phase of the —

Potter Stewart:

Well, just let me this so that you’ll —

Paul A. Sweeney:

Yes.

Potter Stewart:

— get my thought.

Then I understood you that — one of the Chief Justice’s questions to the effect that what you’re contending for was this — was this man’s absolute duty.

He didn’t have any discretion to do this.

Paul A. Sweeney:

Right.

Potter Stewart:

He had to obey his superior officer.

And therefore, you mustn’t hold them because it’s not his act, it’s that of his superior officer.

Well, that’s just the opposite kind of a situation, is it not, from an official who has a great deal —

Paul A. Sweeney:

Yes.

Potter Stewart:

— of discretion?

Paul A. Sweeney:

Well, yes.

But ordinarily they only deal with the discretionary situation.

I don’t know of any instance where it was a man’s absolute duty to do something that has been before the Courts insofar as, certainly, not as far as this Court is concerned.

Ordinarily, any official that performs an act is either guilty of a trespass or may commit a tort upon a private individual.

If he were a private individual that would be actionable.

His defense, ordinarily, is that he is acting pursuant either to a valid law or valid regulation of his superior.

When he shows that, he normally is immune from any kind of a tort or a trespass action.

And that’s one of the reasons you practically never find anything of this character because ordinarily, there’s a number of cases that upheld, the Ainsworth — De Arnaud versus Ainsworth is the next, in Lynn O’Connor case in the — in the lower courts where they have held that because of the complexities of the modern departments, it’s impossible for the head to exercise most of his duties.

He has to delegate them to his subordinates.

But the acts of his subordinates are usually the acts of the Department.

Now, that basically is the reasoning which deals with the problem that you raised, Mr. Justice Stewart that there has been restricted in this Court or the only case they have dealt with was the head of the department.

I would assume that an ordinary assistant secretary has more people under him and more duties now than the head of the department had in 1895.

There’s been that much increase in the complexity of Government operations.

And I think the reason in back of it is the thing that should be of interest.

And, that is, that you look not at the titular job that the person holds but the duties that they are intended to perform.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
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Paul A. Sweeney:

And I think that that is the point at which the decision should be made as to whether there should be absolute immunity or not.

Now, of course, again on the question of defamation, we all know that anybody that publishes it or transmits it is liable.

For example, when a man has a publicity agent, public, whether he release these things through, that man is also guilty of publishing but no one ever treat that as anything except the acts of the head of the department and the person that directed him to.

Even a newsboy that carries and sells newspaper that contains a libelous article is technically guilty of a publication.

No one bothers with that.

You usually look at the responsible person.

But there’s a lot of technicalities in this field that I think that can be over exaggerated.

I would like to express the fact that at least as far as the field of absolute privilege is concerned, we think it should be examined — it should be dealt with as a matter of federal law.

It has to do with what as a matter of federal interest and the desire is the balancing of two equities.

The right of a private individual to be secure in their reputation, that’s as far as the defamation case is concerned, but to this, of course, would extend to the malicious prosecution cases, false imprisonment.

There’s a great number of those in the books as an addition to this particular form.

And that the relationship, that balance that should be made as far as federal officials is concerned, as far as the federal judiciary is concerned, is a matter that should be decided on the basis of federal law and not from the varying concepts of 48 different States.

The second thing is, especially in anything that has to do with defamation, it should have a uniform rule because a press release from Washington will be published perhaps in all 48 States of the Union.

And, of course, you may maintain a suit for defamation any place that it’s published.

So, you would get divergent views and divergent results.

And I would like to call attention to one fact that I think is quite disturbing.

I would see no reason or any basis on which you can distinguish, that is on the basic reasons.

The degree of it might be entirely different between the immunity of the judiciary and the immunity of the executive.

It’s all based on a basis of public policy.

Now, if you applied state law to the executive branch, I would think by the same sign and token, you would have to apply state law to the judiciary.

And yet there’s a decision by the Supreme Court — the Court of Appeals of New York which is then cited in the opinion below where they held that the judge can send a copy of his opinion to West Publishing Company under the New York Law Journal that transcended the duties of his office and he was guilty of publication of that and it could be held in an action, at least it was not ordinarily demurrable.

Now, I don’t think that it would be a very good idea to have the federal judiciary subjected to suits for defamation if there happened to be some statement in one of the opinion and it was a frivolous argument put in by an attorney and that it would have been published in the New York Law Journal.

And that would be — that — I’m giving that as a concrete example of what could happen.

In other words, I think in the field of absolute immunity, it should be definitely governed by federal law and whether — whether different considerations apply to qualified privilege, we do not need to consider because this case is here only on the question of absolute immunity.

Earl Warren:

Mr. Sweeney, I understood you to say that the — the foundation for — for this exemption on the part of the executives stemmed either from statute or from a regulation.

Paul A. Sweeney:

No, not the basis for exemption.

No, Your Honor.

I said that the person was ordinarily protected in their action —

Earl Warren:

Yes.

Paul A. Sweeney:

— if it would a constitute trespass or a tort.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
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Earl Warren:

Yes.

Well, his — his protection comes from the fact —

Paul A. Sweeney:

Yes.

Earl Warren:

— that he’s responding to either a statute or a regulation.

Paul A. Sweeney:

That’s right.

Earl Warren:

Now, is there any such statute or regulation in this state so far as the Admiral is concerned?

Paul A. Sweeney:

Yes there’s a —

Earl Warren:

Where?

Paul A. Sweeney:

Well, I would — I would add one thing like that when I say statute or regulation or a valid order of his superiors.I think that’s in that.

I have not examined the regulations to any degree.

I know there is a — a very definite regulation.

I look at that with more care relating to the organization — the industrial relations branch of the Navy and that provides that they shall make reports on periodic reports through the head of the department in that thing.

It has nothing to do with the release of reports to the congressional delegation.

Now, this — this large volume here, which I’ve been totally unable to — I think you can get an idea.

This has to do with the public relations of the Navy.

I think it’s (Inaudible) 200 or 300 —

Earl Warren:

Is there any regulation in there that affects the Admiral in this case?

Paul A. Sweeney:

There is a — there’s one small one in here.

It doesn’t seem to me to read on this much one way or the other.

Earl Warren:

Well, if it doesn’t, there’s no use taking your time Mr. Sweeney.

Paul A. Sweeney:

I don’t think there’s significant —

Earl Warren:

Yes.

Paul A. Sweeney:

— on it.

Earl Warren:

Yes.

Hugo L. Black:

(Inaudible)

Earl Warren:

Yes.

Hugo L. Black:

(Inaudible)

Earl Warren:

Well, I didn’t —

Hugo L. Black:

Did the Court of Appeals decide this on the basis that there was a duty on the part of this man to reports this to the Congress?

Paul A. Sweeney:

Now, they sort of sides (Voice Overlap)

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
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Hugo L. Black:

They seemed to say — well they seemed to have gone on the basis of Justice Whittaker (Inaudible)

Paul A. Sweeney:

I think the —

Hugo L. Black:

— that policy.

Paul A. Sweeney:

I think the —

Hugo L. Black:

What is the difference, so far as you’re concerned between the two?

Paul A. Sweeney:

Well, my idea is that they overlooked the basic situation here that there was a duty on his part, so they don’t challenge it.

Hugo L. Black:

So, the Court went on the theory, they didn’t have a right to accept the petition of Howard rather than that of Schnackenberg?

Paul A. Sweeney:

They don’t —

Hugo L. Black:

Howard —

Paul A. Sweeney:

— they don’t —

Hugo L. Black:

Did Howard — you say there was a duty on him?

Paul A. Sweeney:

In the Court of Appeals —

Hugo L. Black:

The Court of Appeals says (Inaudible)

Paul A. Sweeney:

They don’t get on it’s stand on that, but they are — they had — and they said perhaps, I’m reading from page 38, “Whether the courts may perhaps have gone too far down the line in developing this doctrine of absolute immunity, may be a fair question.

At any rate, we shall not be astute to develop further the categories of absolute immunity.”

Hugo L. Black:

But on page 39 at this first paragraph, they draw a distinction there.

I don’t know what — what they meant.

But I’m not speaking on that.

In this respect, the defendant’s affidavit conceded to the Court of his official duty, that is, expected notice to the Congress and informant was made with department policy (Inaudible) he sent copies.

Did the court draw a distinction between the statement of official duty and statement of Navy policy, and do you draw any?

Paul A. Sweeney:

I don’t think they did because, as you said, if you read on, it is true, the sent copies, the previous members did have an official interest in being kept advised of important developments.

It is therefore understandable and certainly not abtitious officious that the Commander of the Boston Navy Yard might have considered this to be a proper exercise of his official function to see to it that the members of Congress should receive copies of such.

Hugo L. Black:

Well, what —

Paul A. Sweeney:

Well, here is —

Hugo L. Black:

— is the basis —

Paul A. Sweeney:

— here is what I think is their — the rationale of their decision in all of its line.

It would be on a wholesome thing to extend to this situation the protection of an absolute immunity such has been held to apply to official reports to a superior officer.

They just don’t like the doctrine.

I think that’s what they’re telling us.

Earl Warren:

Well I thought, Mr. Sweeney, you’ve told us earlier that if there’d never been disputed, but what this was a positive duty on the part of the Admiral to — to —

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
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Paul A. Sweeney:

I don’t —

Earl Warren:

— send the — this communication to the Congress.

Paul A. Sweeney:

There’s two — two points on this.

There are two affidavits here.

There’s the affidavit of the superior, Admiral Schnackenberg, “Included among Rear Admiral Howard’s official duties as Commander, Boston Navy Yard is and was on September 8th, 1955, the furnishing of copies to the Massachusetts Congressional Delegation of his official notification to the Bureau of Ships of personnel action taken by him.”

Now, he states in unequivocal terms.

It was included among his official duties to do this thing.

Now, Admiral Howard expresses it slightly differently.

“In the course of my official duties as Commander of Boston Navy Yard and in conformance,” now he’s got a double head and if you notice the court just took the second part of this.

They didn’t say, “In the course of my official duties as commander and in conformance with Navy Department policy of keeping them advised.”

Hugo L. Black:

Where are you reading from now?

Paul A. Sweeney:

Pardon, sir?

Hugo L. Black:

What page are you reading?

Paul A. Sweeney:

225.

Hugo L. Black:

Five.

Paul A. Sweeney:

This is Admiral Howard’s affidavit and the Court picked up starting in the second sentence “in conformance,” as I recall — the language you called my attention to.

Hugo L. Black:

Well, are they justified in drawing from that inclusion that Howard was not compelled to obey that policy of his superiors?

Paul A. Sweeney:

No, I do not think they were justified in drawing that conclusion at all, Your Honor, because you have the uncontroverted statement of Schnackenberg and Howard says, “In accordance with his duties and”, this is conjunctive, this was another reason, because of the policy of the Navy.”

They keep them advised, generally.

Charles E. Whittaker:

Were those the claims (Inaudible)

Paul A. Sweeney:

All right, not in accordance, in the course of.

I beg Your Honor’s pardon.

Charles E. Whittaker:

(Inaudible)

Paul A. Sweeney:

I was —

Charles E. Whittaker:

That’s right.

Now, this is why I got the distinction you from the court’s opinion.

It seems to me that it has no place of decision at all unless it makes the distinction based on Admiral Howard’s affidavit that he had a legal duty to file the reports with his superiors and the judgment here it held that those were not exclusive privilege.

But when it comes to the matter of the copies that were sent to the congressional delegation, both were made only in the course of official duties but in accordance with Navy policy, not any compulsion.

And therefore, Judge Magruder says, “Those were only qualified the privilege.”

Isn’t that right?

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
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Paul A. Sweeney:

I think that’s the interpretation, but I do not think of — of that that is what they were leading to, but they do not dispute or they do not say anything about Admiral Schnackenberg’s statement which has included among Admiral Howard’s official duties is and was the furnishing of copies.

Now, a duty is — if it’s one of your duties to furnish a thing, it’s mandatory on you.

Now, have I — would again like to stress the fact that had the Court felt there was some doubt on this question, and may I add this thing for Your Honor’s consideration.

It’s what I regard as a finding by the District Court.

It’s on page 24 — 23, I beg, Your Honor.

The complaint in the affidavits and documents referred thereto in filed in support of this motion show conclusively that the statements attributed to the Defendant were published by him in the discharge of his official duties.

Now, that’s publication.

And of course sending it to the members of Congress is publication, and in relation to matters committed to him for determination.

Now, this is the finding of the District Court.

And if the Court of Appeals had not agreed with that finding, I find it very difficult to believe that they would have taken the course that they have here.

In other words, they could have held that there was insufficient evidence to support it.

They could have drawn a inference.

Of course, it should be clearly erroneous if they all accept — accept that.

They don’t discuss anything of — in the clearly erroneous rule.

And the argument of this case in the matters before it, this thing was stressed that it was part of the duties.

Now, as I say, I think the point about it is the Court of Appeals’ opinion makes it pretty clear they don’t believe the doctrine should be extended and I think it’s an unwholesome thing to extend it to new categories.

That is, different things.

In other words, you have the category of a report to a superior.

That’s one category.

If you had a — a category of sending a report to Congress, they say that’s extending it.

That’s a new category.

I think the basic reason at the back of them is all the same, but at least they’re treating them in these categories.

The category of sending a report to Congress they felt was a category in which they should not expand this.

Charles E. Whittaker:

At least I — I think you — you agree that under the law, if there was not a legal compulsion for or duty by regulation or law, having a regulational order has any effect to that, to file these reports with the congressional delegation, there would be no qualified privilege.

Paul A. Sweeney:

No qualified privilege.

Charles E. Whittaker:

I — I mean (Inaudible)

Paul A. Sweeney:

Well, I think maybe there would be, Your Honor please, because it may be a matter that was up to his discretion as to whether he would send them to Congress or not.

Earl Warren:

Well, is there anything on the record here that shows that?

Paul A. Sweeney:

No, no, Your Honor.

That wasn’t — this is beyond the basis that this was a –a duty on his part.

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
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Potter Stewart:

Yes.

And Mr. Sweeney, your answer to Justice Whittaker’s question comes back to my original difficulty with your argument.

I honestly don’t understand if you’re — I know you’re arguing that this absolute immunity should exist because here was a man with a great deal of discretion or are you arguing that the immunity exists because here was a man with no discretion that he had to — had to do this?

They are —

Paul A. Sweeney:

I’m arguing first —

Potter Stewart:

Or possibly, argue — are you arguing both?

Paul A. Sweeney:

I would argue both if it’s necessary.

I say as far as this case is concerned, he had no discretion on sending these reports to Congress.

He did have discretion in compiling the report that he sent to his superiors.

In other words, that is a matter that he had to make the decision now that as to what he would do about this situation that existed there.

That was entirely within his discretion.

Charles E. Whittaker:

(Inaudible)

Paul A. Sweeney:

Now, I was going to say that there is discretion mixed up in it as far as the compilation of that report is concerned.

And that’s the type of discretion that is absolutely immune.

Now, I say that under the record in this case, after he had exercised his discretion and made that report, he had no discretion, under the record in this case to — and sending it to members of Congress.

I would go further that the case necessitates the argument and that is that he did have a realm of discretion as to whether he should send it to Congress or not because of the matters that had occurred heretofore in this field.

But the —

Earl Warren:

But therefore —

Paul A. Sweeney:

— case was not tried — the case was not tried on that basis.

In other words, there is not evidence in here to make the difficulty, which I think you’re both suggesting, and that is that he had an area of discretion as to whether he would send it to Congress or not.

It was assumed that the record made established that he was under a duty.

Once he had made the report, it was his duty to send it to Congress.

Under —

Earl Warren:

Oh, Pardon me.

Excuse me.

Earl Warren:

Oh, I’m finished with —

Under the pleadings, is there an issue of fact as to whether this was in his line of duty?

Paul A. Sweeney:

Only I suppose there’s an issue of fact in this extent that they alleged it was outside of it.

He alleged in his answer that it was in his line of duty and —

And this came up on —

Audio Transcription for Oral Reargument – April 20, 1959 in Howard v. Lyons
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Paul A. Sweeney:

This came up on a motion —

(Voice Overlap) a motion.

Paul A. Sweeney:

— affidavits on a motion for summary judgment —

Summary judgment.

Paul A. Sweeney:

— on absolute privilege.

And the District Court treated the allegations and the Admiral’s affidavit is un-denied and therefore, said there was no issue of facts.

Is that the way?

Paul A. Sweeney:

That’s right, Your Honor.

Earl Warren:

Mr. Dawson.

Before you get into your argument, Mr. Dawson, would you mind addressing yourself to this last point we’ve been discussing and — and tell us (Voice Overlap) —

Claude L. Dawson:

Very well, Your Honor.

Earl Warren:

— tell us whether you agree with Mr. Sweeney that– that as the record comes to us, we must — we must take it as though the Admiral was acting under orders and–and was obliged to send this communication to Congress.

Claude L. Dawson:

Mr. Chief Justice, and Associate Justices, in my answer to that I say this.

There’s a total absence in the record of any such proof that he was under compulsion to send this report to the members of Congress or to release it to anyone except to the person to whom the memorandum was directed.

Now, it is true that the affidavits in this case state that it was his duty to send this report to the Admiral in charge but they cite no order.

They cite no regulation or anything that shows that that is his duty nor in the affidavit which is the Navy or — or what he says is the Navy policy, to send this to members of Congress of all memorandums.

He cite no memorandum or order or regulation requiring them to do that.

So that in both cases, the affidavits which are shown are mere conclusions of the affiance and are not entitled to very much weight and I don’t think that the Court of Appeals, when they considered them, gave them very much weight.

Hugo L. Black:

But they’d be entitled to weight, wouldn’t it, if you didn’t offer some kind of counter affidavit?

Claude L. Dawson:

They’d be entitled to — to a weight to the extent that the affidavit show, Your Honor.

Earl Warren:

But what do you do with this — with this finding of the court — the trial court, “The complaint and the affidavits and documents referred to here — therein filed in support of this motion show conclusively that the statements attributed to the defendant were published by him in the discharge of his official duties and in relations to matters committed to him for determination”?

Claude L. Dawson:

Well, now, Your Honor, I’ll refer you to the allegations of the complaint in which we alleged that outside of the — of the — in which the respondents alleged that outside of the duties, that the releasing of the memorandum to the members of Congress from Massachusetts and also releasing through the Admiral before a release to the press were outside of the duties of it.

Now, the — the only thing that as far as the record shows in this case, and I wasn’t at the trial, at the hearing rather, is the motion for summary judgment.

The motion for summary judgment in this case admits all of the facts that are well pleaded.

And of course, considers the affidavits in the case.

Now, if there is a disputed fact in which they must be under the allegations of the complaint in this case, to the effect as he was acting within the scope of his — he was not acting within the scope of his duties, then the finding that predicated only on the affidavits has hereto in the record cannot be sustained.

And I — that’s my answer to that, Your Honor.

Earl Warren:

We’ll recess now —

Claude L. Dawson:

All right, sir.

Earl Warren:

— Mr. Dawson.