LOCATION: Arizona Dept of Public Welfare
DOCKET NO.: 62
DECIDED BY: Burger Court (1970-1971)
CITATION: 401 US 265 (1971)
ARGUED: Dec 17, 1970
DECIDED: Feb 24, 1971
Facts of the case
Media for Monitor Patriot Company v. Roy
Audio Transcription for Oral Argument - December 17, 1970 in Monitor Patriot Company v. Roy
Warren E. Burger:
Mr. Williams, you may proceed whenever you’re ready.
Edward Bennett Williams:
Mr. Chief Justice, may it please the Court.
On September 10, 1960, a column appeared on the Concord, New Hampshire Monitor Patriot syndicated and distributed by the Northern American Newspaper Alliance.
The column discussed and reported upon the upcoming New Hampshire Democratic senatorial primary race. The column had been written by the late Drew Pearson.
The column reported that there were three candidates vying for the Democratic Nomination to oppose the Republican incumbent the late Senator Styles Bridges.
Those candidates were Professor Herbert Hill, a Dartmouth college professor, a respected political figure in the State of New Hampshire and clearly the front-runner in the race; one Alphonse Roy who became the plaintiff in this cause in the court below; and one Frank Sullivan who is release from the Grasmere County Jail after his 19th conviction for public drunkenness had been obtained on the eve of the last filing date by candidate Roy, so the column reported.
The column further reported that candidate and plaintiff below Roy had induced and procured Sullivan’s candidacy as a means of attracting an ethnic vote away from Hill and that Candidate Roy had done this in consort and complicity with the Republican incumbent the late Senator Bridges.
The column characterized candidate Roy as “a former small-time bootlegger, later U.S. Marshal.”
Two other candidates also (Inaudible) of the New Hampshire Jail system had been disqualified by the New Hampshire Ballot Commission, so the column reported.
Roy promptly filed suit in the New Hampshire courts naming that Concord Monitor Patriot as a defendant and naming North American Newspaper Alliance as a defendant.
He alleged three specific libels.
First, the characterization of him as a former small-time bootlegger; secondly, the fact that he had induced and procured Sullivan as a candidate; and thirdly, the fact that he had done so in complicity with the Republican candidate.
After trial, the jury returned the verdict for the plaintiff against both Concord Monitor Patriot and North American Newspaper Alliance solely upon the characterization of Roy as a former small-time bootlegger and that defamation is the only alleged defamation germane to the appeal in this case.
It is our contention, if the Court please that the trial judge and the New Hampshire Supreme Court misread, misgauged, and misconstrued the language of this Court in Garrison against Louisiana decided in 1964.
How much was the verdict?
Edward Bennett Williams:
It was $10,000 against each defendant Mr. Justice, an aggregate of $20,000 which is permissible under New Hampshire law.
The trial judge, if the Court please gave the jury what was a bifurcated instruction on the law of libel.
He told them that if they found that the characterization of Roy as a small-time bootlegger was on a par with the criticism of a public official for the misconduct of his office.
Then New York Times against Sullivan would be applicable and it would be necessary for the plaintiff to show malice that is the falsehood was uttered with knowledge of its falsity or with a reckless cavalier disregard as to its truth or falsity.
Trial judge did not stop there.
He went on and told the jury that they may find that the libel was in what he characterized as the private sector.
He said that if the alleged defamation had no relevancy to Roy’s fitness for office.
If it was merely a bringing forward of his long forgotten past misconduct, if it was on a matter in which the public had no interest then it was a private libel and New York Times v. Sullivan would not be applicable and in that case, the plaintiff might recover unless the defendant successfully asserted one of two defenses.
He then told them what the two defenses were under the law of New Hampshire.
The first one was justification and the second one was conditional privilege.
He then went on to describe the defense of justification.
He said that the defendants could prevail if what they said was true and if it was uttered with good motive.
Secondly, he told them that the defendants might prevail if the defense of conditional privilege obtained and he said that they could avail themselves of conditional privilege even if what they have uttered was untrue if it was uttered with a reasonable belief in its truth, a reasonable basis for believing it to be true and if it were uttered with justifiable purpose and good motive.
He told the jury that if they found the characterization of Roy to have been a public libel in the public sector under New York Times v. Sullivan then they must exonerate North American Newspaper Alliance because there have been no showing whatsoever of malice against North American Newspaper Alliance.
Obviously, the jury found the libel to have been in the private sector because it returned verdicts against each defendant in this case.