Monitor Patriot Company v. Roy

PETITIONER:Monitor Patriot Company
RESPONDENT:Roy
LOCATION:Arizona Dept of Public Welfare

DOCKET NO.: 62
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 265 (1971)
ARGUED: Dec 17, 1970
DECIDED: Feb 24, 1971

Facts of the case

Question

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.

Thurgood Marshall:

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.

Potter Stewart:

The second — the alternative part of the charge instructing the jury as to the conditions under which they could find liability if this were not a public libel did not, that part of charge did not purport to have any reference to the United States Constitution, did it? That was purely a matter of New Hampshire case law or statute law.

Edward Bennett Williams:

Exactly Mr. Justice.

Potter Stewart:

The theory being I suppose that if it were that kind of a defamation it was — the United States Constitution had no impact whatsoever upon it.

Edward Bennett Williams:

That’s exactly right sir.

Now, it’s our contention, if the Court please that the trial judge committed error of constitutional dimension when it permitted the jury to find that this characterization of Roy could be a so-called “private libel.”

It is our contention, if the Court please that the rule which applies to public officials for defamations concerning the discharge of their public duties namely that the defamation must be shown to have been made with malice before recovery can be made applies a fortiori to a candidate for public office whether he aspires to executive, legislative, or judicial office.

It is our contention, if the Court please that the logical sequel to New York Times against Sullivan is that defamations against candidates for public office, so long as they relate to the fitness of the candidate for office, so long as they are within the ambit of public discourse and dialogue regarding the qualifications and background of the candidate, have a constitutional protection unless uttered maliciously.

This Court when it articulated New York Times against Sullivan cited immediately with approbation a case which have been cited for almost half a century with approbation by many state in federal courts.

It dealt with a candidate for office.

It was the case of Coleman against MacLennan.

And in that case, eloquently and articulately, and precisely is stated what we contend should be the rule.

There the court said it’s of the utmost consequence that the people should discuss the character and qualifications of candidates for suffrages.

The importance to the State and to society of such discussion is so vast and the advantages derived is so great that they more than counter-balance the inconvenience of private persons whose conduct may be involved and occasional injury to the reputation of individuals must yield to the public welfare although at times such injuries may be great.

I suppose you contend the very least this time as a public figure not a public official.

Edward Bennett Williams:

We can — of course, he was a public figure but we contend Mr. Justice but we say more than that he was a candidate for public office so there can be no doubt about the malice rule applying to him in his aspiration for public office.

Well, he’s the one to bring in under the times rule?

Edward Bennett Williams:

Yes, sir.

I believe it would.

Warren E. Burger:

Do you think Mr. Williams that there is a separate category for candidates as supplementing the distinction that’s been made between public figures and public officials?

Edward Bennett Williams:

Well, this Court in Curtis Publishing Company against Butts divided, as I read the opinion, with respect to the rule that should apply to public figures as against public officials.

I say that there is no reason for division here because certainly a public candidate for public office should be treated as a public official.

Warren E. Burger:

Public official or public figure?

Edward Bennett Williams:

Public official, sir.

I think the rule that applies to a public official on defamations concerning the discharge of his duties should apply to a candidate who aspires for such office because I believe that when a candidate announces for office.

He lays his life before the press for scrutiny and I believe that anything in his life is relevant to his fitness for office, his private life or his public life.

His character, his mental and physical health, his record whether it be academic, professional, commercial, social, marital, or criminal, as in this case.

I believe that all of that is appropriate for public discourse and that there is a constitutional protection surrounding the discourse so long as it is within the ambit of dialogue relating to his background, his qualifications or his fitness for office.

Warren E. Burger:

Did I understand you to say that you see no real difference between the public figure and public official classifications or do you mean as it applies to this case?

Edward Bennett Williams:

As it applies to this case.

In Curtis Publishing Company against Butts where the Court discussed in great detail the doctrine relating to public figures.

Edward Bennett Williams:

As I read the opinion, four justice of this Court felt that there should be a rule of highly unreasonable conduct applicable to the press before a recovery could be made.

Other justices felt that the New York Times rule applied.

The rule of malice, I suggest that that distinction does not lie with respect to a candidate for public office.

I believe that the New York Times rule should apply in its full import and all of its implications with respect to a candidate for public office.

Potter Stewart:

That really was the holding in Butts as to a “public figure” wasn’t it by virtue of I think a footnote in the opinion of Chief Justice Warren?

Edward Bennett Williams:

I think so.

Yes, sir.

Potter Stewart:

The — Justice Harlan wrote their prevailing opinion but that is that those four Justices were outgunned by that footnote.

Edward Bennett Williams:

Yes, sir.

So we contend, if the Court please that any other rule — any other rule would ice the wings of public debate concerning candidates for office, concerning as in this case a candidate for a high office.

It would depth and the bigger and limit the variety of discourse with respect to the qualifications of the candidate for office.

Mr. Williams you probably already said it but I guess I didn’t hear it.

Was it a fact — was it proved as a fact that this plaintiff had been a small-time bootlegger?

Edward Bennett Williams:

There were five witnesses, Mr. Justice who testified that he had the reputation for having been a small-time bootlegger.

He vigorously denied this and claimed that his brothers were the bootleggers but one witness took the stand who had been the original source of the information for the writer of this column and swore that this man had been a former small-time bootlegger and had admitted it to him.

Well, do I understand though that treating this as a private sector case as the trial judge did, it would not have been a defense that it was true?

Edward Bennett Williams:

It would have been a defense Mr. Justice under the New Hampshire rule of conditional privilege even if it were not true if the defendants reasonably believed it to be true but if they uttered it with justifiable purpose and good motive.

But suppose, the jury had found that was true would they nevertheless under New Hampshire go ahead been an action for libel?

Edward Bennett Williams:

Yes, sir there would have been because under the defense of justification, even though the allegation is true unless it is published with justifiable purpose.

There may be a recovery by the plaintiff and that’s what the jury was told in this case.

Warren E. Burger:

Mr. Williams you’ve spoken of New Hampshire law several times.

Do you think the state law has a — libel has survive the line of cases in New York Times and others or is the state law viable simply up to the point where it is in coalition with the First Amendment cases in this part.

Edward Bennett Williams:

I think Your Honor that it certainly a fragment of state libel law has survived and I think that the trial judge in the New Hampshire Supreme Court misgauged how much of it survived.

The trial judge, if the Court please read Garrison against Louisiana to support the instruction which he gave to the jury.

You’ll remember, if the Court please that in that case this Court discuss the defense of truth to the criminal libel law of Louisiana and discuss the limitation on truth namely that the utterance had to have been made with good motive.

In a footnote, the Court said this, footnote 8.

“We recognize that different interest may be involved were purely private libels, totally unrelated to public affairs are concerned.

Therefore, nothing we say today is to be taken as emanating any views as to the impact of the constitutional guarantees in the discreet area of purely private lives.”

Now, we do not contend, if the Court please here before this Court that the moment that a man announces that he is a candidate for high office in this land that he loses all his rights under the area, in the area of defamation, all the rights at a (Inaudible) as a private citizen.

For example, if a candidate announced that he was going to run for the Senate and simultaneously in an unrelated transaction he was seeking to buy a house.

Edward Bennett Williams:

And the perspective vendor send a credit report — was send a credit report by a Credit Information Bureau in which it was said untruthfully that he had eight unsatisfied judgments against you and if the sale were cancelled because of that then if that defamation never got into the public discourse concerning his fitness for office, if it never became part of the dialogue concerning his qualifications, if it never came within in the ambit of what was uttered to influence votes but remain purely private between the Credit Information Bureau and the perspective vendor, we say that his rights would survive as a citizen under appropriate New Hampshire law or if —

I thought that, I don’t quite understand that.

I thought you’re theory would permit anybody to put that right into the public discourse.

Edward Bennett Williams:

Well, I —

Even though untrue would say this candidate for Senator has eight unsatisfied judgment.

Edward Bennett Williams:

Yes, sir.

And if it got into the public discourse —

Well anybody could put it in.

Edward Bennett Williams:

It could be put it in.

A columnist or anybody else.

Edward Bennett Williams:

And once it got into the public discourse, it would have a constitutional umbrella over it.

I thought you said.

Edward Bennett Williams:

Exactly, that’s what I say.

But take another illustration.

If a gossip should go to the candidate’s wife during the campaign and say that he was conducting a meretricious relationship with one of the staff while out on the hustings and if that stayed private, if it broke his marriage.

What if it never got into the public dialogue?

If it never became part of the public discourse, then I suggest it will remain in what this Court characterized as the discreet area of purely private libel.

But once it was injected into the discourse concerning his qualifications fitness for office by the press or by his opponent or by any member of the media then it would have a constitutional umbrella protecting it unless maliciously uttered.

Thurgood Marshall:

Do you not think that you probably suggesting an imaginary line?

Edward Bennett Williams:

I don’t think.

Thurgood Marshall:

Of occurred politics?

Do you think if there’s anything, if any man who runs for office has ever done as said have been charge with, it won’t be found out and become a part of the campaign?

Edward Bennett Williams:

I think that the chances are very high than any defamation that is uttered during the life of a campaign will find its way into the public dialogue and get the protection of the Constitution.

But I say that it is possible certainly. It is possible certainly that there could be a defamation in what this Court has called a discreet area of purely private liable where the candidate would still retain his rights as a citizen.

Thurgood Marshall:

Because it would never find out anything about it.

Edward Bennett Williams:

But the public might not find out.

Thurgood Marshall:

I couldn’t imagine that if it —

Edward Bennett Williams:

Well, I think it could happen Mr. Justice.

I think it could happen.

Byron R. White:

So does your distinction depend upon the identity of the libeler that is if it’s done by a newspaper or —

Edward Bennett Williams:

No.

Byron R. White:

— by anybody publicly to the public.

Edward Bennett Williams:

I think it depends upon —

Byron R. White:

It’s protected by — but on the other hand if it it’s just a private communication from a gossip to the candidate’s wife then it’s —

Edward Bennett Williams:

I think not.

I think not Mr. Justice.

I think it depends upon two things.

I think it depends upon whether the utterance comes within the perimeters of public disburse on the candidate’s fitness.

I think it depends upon the design, the purpose for which it was uttered in the first instance.

I don’t think that we can divorce ourselves from the content from the design at which it’s uttered.

I think if its gets into the ambit of public discourse regarding the candidates fitness for office then it has the constitutional protection.

Now, certain —

Warren E. Burger:

Somewhat — I’m confused.

Let me see if I can clear up what you’re thinking is on this private libel.

Let’s assume that in today’s atmosphere where pollution is a big problem, someone describes in a column, describes the person to the power company as one of the worst polluters of American life, something of that kind.

Up to that time, nobody has ever heard about the president of the power company.

He’s a candidate for office.

He isn’t a public official.

Is this the kind of — is this a private libel?

Edward Bennett Williams:

I think, no sir.

I think it would be a matter of such high public interest that it would fall within the perimeters of Curtis Publishing Company against Butts.

And therefore that the Times rule would apply to this particular kind of libel which you cite Mr. Chief Justice.

Warren E. Burger:

Even though his neither —

Edward Bennett Williams:

Even though he himself may not be known to the public.

Warren E. Burger:

Not a public figure, not a candidate, not any?

Edward Bennett Williams:

Because I think it’s a matter of such high public interest, a matter in which the public has such a deep concern.

Now in this case of course we’re dealing with the characterization of the man as a bootlegger, as a lawbreaker.

Certainly, it cannot be held to be irrelevant to its fitness for office.

This Court nine years ago found that whether a man was a bootlegger or not was relevant to his fitness for citizenship.

And I suggest to the Court that if its relevant to its fitness for citizenship, it’s relevant to its fitness for membership in the United States Senate.

Edward Bennett Williams:

In Costello against the United States, decided in 1961, the Court found that the Bureau of Immigration and Naturalization might certainly have turned away this applicant for American citizenship if they have known that he was a former bootlegger.

And I say, a fortiori it applies here.

Now, we ask not simply that this case be remanded because indeed there’s no cause for remand.

We ask that it be reversed became there is absolutely no evidence in this record that this alleged defamation was done with malice on the part of these defendants.

The trial judge himself found absolutely no malice with respect to North American Newspaper Alliance.

The record is completely devoid of any evidence of malice with respect to the Concord Monitor Patriot.

They subscribed to this column.

They relied on the information in it.

But beyond that, the testimony in the record was that the editor of the paper himself knew of the plaintiff’s reputation as a former bootlegger.

He read the column before he allowed it to be defendant relying on his own information as well as the prior experience with the columnists.

He permitted the column to go forward.

There was no evidence in this record which suggested that there was any awareness of falsity or that there was any reckless or cavalier disregard as to the truth or falsity of the publication on the part of Concord Monitor Patriot.

Mr. Williams, I take it you would for — if you should prevail on the basic law, you would foreclose the plaintiffs from attempting to establish the New York Times standard of malice from which you just said.

Do you think he should be foreclosed if the case in fact was tried on the State standard?

Edward Bennett Williams:

Not if it had been Mr. Justice but it was not.

It was not.

Edward Bennett Williams:

In fact the trial post-dated New York Times v. Sullivan and appropriate amendments were made to the pleadings to allege malice within the purview of New York Times against Sullivan and the plaintiff put proof in to show malice so as to comply with standards of New York Times against Sullivan and I suggest to the Court that may exceed unnecessary for a remand for that purpose.

Now, going back to the alleged bootlegging activities.

Edward Bennett Williams:

It was not specified Mr. Justice but it had to be 26 years at least because the Volstead Act had died 26 years before the campaign.

Thurgood Marshall:

Well, imagine we have many bootleggers in a place where they allow whiskey to be sold illegally?

Edward Bennett Williams:

I’m sorry Mr. Justice.

I’m sorry.

Thurgood Marshall:

I say, the mere fact that the Volstead Act was not in effect wouldn’t determine that, would it?

Edward Bennett Williams:

No —

Thurgood Marshall:

Bootleggers in the section were the —

Edward Bennett Williams:

I was using the term “bootlegger” as a term of art to describe people who traffic in whiskey at the time when it was illegal to traffic in whiskey.

But I agree Mr. Justice it’s possible that he could have been a bootlegger even after the inhibitions against the sale of liquor were —

Thurgood Marshall:

Not only possible but it takes place all the time —

Edward Bennett Williams:

But probable —

Thurgood Marshall:

— in the country.

Edward Bennett Williams:

I don’t know whether it takes place in New Hampshire Mr. Justice.

Byron R. White:

Well, we have a case like that in Massachusetts.

Edward Bennett Williams:

Yes.

Warren E. Burger:

Thank you Mr. Williams.

Well, the fact there was evidence that if he was a bootlegger was sometime in the early 1930s.

There was some evidence of that was presumably being.

Edward Bennett Williams:

Yes.

That’s right.

Thank you Mr. Williams.

Mr. Brown.

Stanley M. Brown:

Mr. Chief Justice, if it please the Court.

Let me start where my brother Williams left off.

And let me start out by answering Mr. Justice Brennan’s question what was the situation factually disclaim a bootlegger was totally false.

Totally false, it wasn’t even close.

Now here’s the one brush with the law that my client had over 68 years of life, the majority of his adult life being public life and public office including being a Congressman, being twice a member of the Executive Council of my State.

In 1923, one of his brothers was running one in those days was known as a Near Beer Joint.

Now those of us who remembered Near Beer remember that it really wasn’t much of a drink unless you had a shot to put in it.

And the local police officers thought that the brother Emmanuel not this plaintiff below, not this respondent.

But they thought that Emanuel probably was selling an occasional shot of whiskey.

So they sent a spy to him and the spy got a shot of whiskey and he has to preserve that evidence because that’s going to be the evidence on which they’re going to rock up Emanuel.

So he takes the shot of whiskey in his holding under the bar when the rest of the by squad breaks in, in a big rush.

And this is in the record, they jumped over the bar, hit the bartender in the nose, and grab the bottle out of which the shot was poured and they got Emmanuel.

No question about it and they’ve also got Oscar who was acting as bartender at that time.

In the rush of people coming in and people inside trying to get out somebody jostled the arm of the officer who was carefully holding the evidence and spilled the shot.

And the officers coming in said, Alphonse Roy did that and we want him over the station.

We’re going to charge him with interfering with a police officer.

He went over to the station.

No charge was ever filed, Captain Gorrie running the by squad told him, “Look Al, would you see if you can’t get your brother out of this racket, he shouldn’t be doing.”

And Alphonse, this is the testimony.

He had been trying to get his brother out.

Stanley M. Brown:

And with the assistance of another Frank or American Professional man in the area after he paid this fine, he did get out of it and went back to an honest living.

Now that is the total evidence on which either 37 or 26 years later, during a period when this man was in vicious political campaign and nobody ever made this suggestion that (Inaudible) Publishers that this man was a former small-time bootlegger.

Byron R. White:

Of course, it wouldn’t require any brushes with the law to prove a fellow as bootlegger I suppose.

Stanley M. Brown:

Mr. Justice White, what we did in this case we discovered the informant to Pearson.

We took his deposition and we gave him a chance to tell us every single thing he claimed to know that would have justified his making this report to Pearson and then we went out and we found witnesses still alive to disprove every single one of that man’s lies.

And we proved that Scott the informant was a bald-faced lie.

Byron R. White:

Well, that’s arguing the evidence.

Could I ask you if it’s under the court’s instructions that it was essential?

Absolutely essential and unavoidable for the jury to find this charge was false.

This allegation was false in order to give him recovery?

Stanley M. Brown:

No recovery was possible under New Hampshire law if it proves to be made out of defense.

They had to find and presumably did find that it was false.

Byron R. White:

Well, as I understand your colleague, Mr. Williams and as I read the instructions of the court, the court said that if the jury found this was on the private side of the libel law that it wasn’t a public matter to which New York Times applied, that even if the matter were true, the defendant had to justify it.

Is that — that’s where the recent instructions.

That’s — is that the way you read it?

Stanley M. Brown:

If Your Honor is talking about the total charge, Your Honor, I think misinterprets.

If Your Honor is talking about those segments of the charge my brother Williams had brief you would get that impression.

The law in New Hampshire as I argued to this Court back in 1966 gives a broader conditional privilege and that which this Court is attempting to work on.

Byron R. White:

Alright.

Stanley M. Brown:

And you have to read the total charge on the private sector or state law to see that you can either justify or excuse and in the total picture you cannot — a plaintiff cannot recover for a false — for a true defamatory of the case.

The plaintiffs must prove falsely and you pick that up that in the beginning of the charge where the Court instructs them with regard to what actual defamation in New Hampshire is.

May I say this Mr. Justice White with regard to this situation to which you are directing our attention.

On page 406 of the record in this Court you will find the defendant’s request for instruction number 20.

Now under our practice that the conclusion of the trial, counsel submit request which puts this — suppose to put the judge on the hook.

He either grants them or denies them.

If he denies them the fellow who submitted them gets an exception and can go someplace.

But if he grants that becomes the law or the trial and that party is not under our practice entitled to come forward later and complain about the instruction being given that he asked and this is the defendant’s instruction as applied to this case, applying New York Times to this case.

Where an article is published and circulated amongst borders for the sole purpose of giving what the defendant believes to be truthful information concerning a candidate to public office and for the purpose of enabling such voters to cast their ballot more intelligently and the whole thing is done in good faith and without malice.

The article is privileged.

Byron R. White:

Well, the judge says to the jury that is the plaintiff and a private defamation is entitled to recover for the injury done to him unless the defendants establish justification.

Byron R. White:

Justification if the matter was true and published for a justifiable purpose.

Stanley M. Brown:

And then there’s an additional section of the charge that if he can’t justify, he then may excuse it.

Byron R. White:

Well sure.

If untrue then he can’t justify.

Stanley M. Brown:

But in that —

Byron R. White:

And then he goes to conditional privilege.

Stanley M. Brown:

That’s correct.

Byron R. White:

Well, I know but now what if the plaintiff.

What if the jury finds in his own mind that this statement is true?

The statement is true.

Now as I read the court’s instructions the jury then does not automatically give a recovery even if he thinks it’s just defamatory.

Stanley M. Brown:

Mr. Justice White, I have read that charge more than once.

I’m talking about the one that Judge Morris gave this case and I cannot accept your interpretation of it and I think perhaps that misunderstanding with the regard to what —

Byron R. White:

New Hampshire law is?

Stanley M. Brown:

— what New Hampshire law is.

Byron R. White:

Well, it maybe what New Hampshire law is but how about this case.

We’re citing this particular case.

And under the instructions if the judge said that even if it’s true, the plaintiff can recover.

He said that to the jury.

I suppose that the jury might have found that was true but still given a recovery because the defendant didn’t feel it was a justifiable motive.

Stanley M. Brown:

Mr. Justice White, I do not — believe that those instructions that charge left that position open.

I’m relatively sure that it did not since I was involved in the case — and I had gone over this now.

I’d be glad to submit.

I didn’t brief it here because I didn’t know it is just going to come out.

But what’s happened here, a particular portion of the charge has been over emphasized by the defense.

And if you read the entire charge, as it was given and understand it as it was given, that position is not open.

That is to recover for the publication of the truth.

It never has been since New Hampshire.

Byron R. White:

Alright.

And that is — does the Supreme Court opinion straighten this out or no?

Stanley M. Brown:

The Supreme Court, the State Supreme Court decision in this case says that a charge of bootlegging based upon this solitary brush with the law that I spoke of which is at least 26 and maybe 37 years old.

The rest of the evidence was that such a rumor that he might have been a bootlegger had dried up, stopped that was not prevalent from 1930 on.

That bringing that into a 1960 campaign as it was done in this case could be found factually to be irrelevant to the man’s 1960 qualifications for office.

Now the Supreme Court decision says obviously the trial court came to that preliminary decision which is what is the suggested procedure under Times and Sullivan.

And obviously in addition, the jury so found and that’s what this record is at this point.

Nobody until we got here has suggested the contrary that this is not a factual matter as to whether or not something is stale as this is material relevant to the man’s fitness at the time.

Byron R. White:

Could I ask you another thing about the instructions?

Do you think the instructions fairly left it to the jury to decide whether this was a so-called private matter or public matter?

Stanley M. Brown:

Yes.

Byron R. White:

Or was the overall reading of the instructions that — or did the judge himself decide that this was a — that he was a public figure or public official?

Stanley M. Brown:

No, no Your Honor.

The charge is quite specific and in language that jurors could understand that they came to this division in the role.

They must divide as a matter of fact themselves was this bootlegging.

You see, they don’t comment on evidence in New Hampshire, they judge not at all.

If this charge having them published, if they found it would bear on the man’s fitness for office and therefore —

Byron R. White:

That’s a different.

That’s a different question.

Stanley M. Brown:

I’m sorry.

Byron R. White:

Is there any issue in the case with respect to whether — was there any issue with respect to whether the plaintiff was a public figure or a public official?

Stanley M. Brown:

No, Your Honor.

We stipulated at the outset Butts and Walker had not yet come down and we stipulated that.

Byron R. White:

Well then, so considered he is a public official or a public figure, to which the New York Times rule apply?

Stanley M. Brown:

Well, we can see that if he was a public official, that aspect we just not concede that this subject matter was comment concerning his so-called official comment.

Byron R. White:

Yes.

Stanley M. Brown:

But the status of the public figure official, we conceded and tried the case on that basis.

That wasn’t left over the jury.

The jury was instructed that that had been agreed upon and they were to handle case on that basis.

Byron R. White:

Would you think that if that if a publication injures a public candidate a candidate for public office in the minds of voters injures his reputation in the minds of voters that it nevertheless can be held to be relevant and private?

Stanley M. Brown:

I say —

Byron R. White:

That’s your position, I take it.

Stanley M. Brown:

Your Honor, I say that the answer to that is yes and I’ll go back to Hitlers Mein Kampf.

The big lie is the one that hurts.

Now understand this, if it please the Court, not one nickel was awarded for a lost of election.

So he lost the election and whatever time and effort he put it.

And the public lost the benefit of having as a public official.

But in addition to that and thereafter, because this was a big lie, the damage continues on and it damages him and his personal private capacity.

And that’s what the verdicts represent.

I don’t think that you can take the position as argued by my brother Williams that whatever anybody wants to write about anybody who stands the public office is automatic — is automatically subject to the strictures of New York Times and Sullivan.

If you take that position I think you’re moving in the wrong direction.

The application of the Times doctrine below has gone so far that Judge Skelly Wright for example has completely reversed all of the normal procedures that courts are suppose to use on motions for summary judgment, motions to dismiss and motions for directed verdict.

He says that the court shall take into account the credibility of witnesses and the court shall draw all instances and the court shall, this is his decision in Wasserman, unless the court is satisfied that the plaintiff has won, the case never gets to the jury for determination.

Now all of the law that I know says that on each of those situations if there is evidence in the case which raises a material question of fact, the jury is the trier of the fact.

In New Hampshire that must be the situation because that is the constitutional requirement.

This judge —

Byron R. White:

That is the constitutional requirement of trial by jury, in your State?

Stanley M. Brown:

Yes, but additionally if the court is conducting a jury trial the court is powerless to make any factual determination.

Byron R. White:

And that’s a matter of your State Constitution.

Stanley M. Brown:

State Constitution statute been practiced since the beginning of time.

Let me point out one thing that my brother Williams did not mention to the Court.

We have ample evidence of New York Times malice in this case.

But it was not permitted to be considered by the jury because our trial court made one error in ruling.

He ruled that Drew Pearson and Drew Pearson’s malice.

I’m talking about his reckless disregard was not chargeable to NANA and to the newspaper.

He did this because the defense below although they were orders to make this clear successfully avoided letting the court know whether or not Pearson was the real party in interest defendant and therefore chargeable with his own acts.

When they came to this Court, by letter they acknowledged that Pearson was the real party in interest defendant by a letter to Judge Brennan asking for an extension which they have been unwilling ever to say to the state court.

The factual background between Pearson and this people is that Pearson by contract would NANA writes, NANA is not permitted to change his writings and has affirmatively obligated to spread it out to the newspapers.

And if there is any light, Pearson indemnifies NANA and in this case also indemnifies the Monitor.

And we tried this case assuming that the malice of Pearson this whole thing was based on one, telephone call to a man he did not know and had never met.

No verification whatsoever and it was false.

Getting back to Senator Mundt, this is the situation.

Stanley M. Brown:

There was a man and it wasn’t an anonymous telephone call.

The fellow’s name was George Scott.

But it might just as well have been anonymous.

Did he ask or attempt to find out from the other side, is it true or false?

I asked him that.

He said, no.

He didn’t try to find out from Roy whether it was true or false because people in embarrassing positions, he knows would deny it anyway.

Now this is malice and we preserve our position, the court was wrong excluding that.

It came in but then this jury was instructed to disregard it.

So that if it were necessary on remand we would go back to the State Supreme Court prior to a new trial and that court would I’m quite sure advice the trial court that that was error.

We try it again with this evidence and we would satisfy all of the requirements of Times and Sullivan that anybody justly could say apply to the case.

One other thing —

Thurgood Marshall:

Mr. Brown, on this private sector thing.

I think I’m confused.

Suppose they said that this was man was bootlegging last year, would that be in private sector?

Stanley M. Brown:

The State Supreme Court decision, Mr. Justice Marshall adverts to that.

What the State Supreme Court says is that a charge of bootlegging — it’s difficult to say that that is not relevant particularly if it were an event of recent occurrence.

But that was the passage of time.

Thurgood Marshall:

Well, that’s what worries me is that the position of real court in the passage of time puts in the private sector.

I mean the words the private gets me into trouble that a candidate for public office as a private sector.

Stanley M. Brown:

Well, the court does not —

Thurgood Marshall:

Maybe I’m quarreling with the word “private.”

Stanley M. Brown:

The Court does not as a matter of law rule that this was in the private sector.

I don’t like the language either.

What it says is that with the passage of time, of more than a quarter of a century and with no actual factual basis for the charge being made it becomes a question of fact as to whether it is relevant in a 1960 campaign and therefore let a jury determine that question of fact.

May I add, —

Thurgood Marshall:

What’s the proper instruction with the court?

Stanley M. Brown:

Sir?

Thurgood Marshall:

On the proper instruction, that’s a part of the case.

Stanley M. Brown:

May I add other thing and it bears on what the point that you bring out.

Stanley M. Brown:

Pearson testified under oath that he didn’t make this publication for the purpose of instructing the voters at all.

Now you’ll find that at page, I think its 190 194 perhaps, and again at 183.

What he said was that he was writing this for a national consumption and had no intention at all to affect the outcome of the election.

So you get this situation.

The defense is that since this man is running for public office, anything that’s said about him to help the voters or to help persuade them should have this privilege.

And the man who wrote it said that isn’t what I was writing it for.

The only reason that it was published on the Saturday before the election was that general reader interest in this type of thing is highest then.

In other words, the column has more salability then it would a week or two later.

But there was no effort to use this Pearson says, to influence voters.

Now as to whether or not it was relevant whether to the election campaign, bear this in mind.

Nobody in the election campaign itself ever used this bootlegger charge at all.

That Hill camp that this article might have helped, they never put out a word claiming any bootleg.

That’s the vicious thing about this whole case.

You can say I think and it’s difficult to argue.

You can say almost anything about a candidate may have some relevance to his fitness, almost.

And if it is used for the purpose of helping the voters make their decision, then it should have some higher standing than as if it is published a month afterwards for the purpose of making some other story.

What happened here was that Pearson claimed that Sullivan was a (Inaudible) after a hearing had been had on it and at which he was held not to be a (Inaudible).

So this is false.

At that hearing, the theory of the Hill forces was that Roy had procured all three of them and that wasn’t substantiated so that again is false he throws it in.

Nobody really believed that Senator Bridges would fool around with these democrat candidates.

The three of them together couldn’t have elect him and they didn’t.

It wasn’t that close.

The evidence is that as National columns throws big names in to attract attention to his column that’s why Bridges is in there and he had three people with criminal records who had filed for this off of it, Sullivan, McCarthy and Robinson.

And he wanted one more to make this story that much better and he made my client Roy into a criminal for that purpose.

In the information that he got at the time he got this information he was told that Roy had been a U.S. Congressman.

He was told that Roy was a responsible public officer and a responsible businessman.

He left that out and he deliberately substituted, this is something like the Pope case.

It’s something like Wasserman and Ragano.

He knew that Roy was actually a responsible person.

He deliberately maligned him and degraded him not for the purpose of helping the voters one bit but for the purpose of selling that column throughout the United States, and you take his word for that, not mine.

Stanley M. Brown:

This is the part that this Court is going to have to face up to it sometime.

You cannot assume that publishes are publishing with proper motives.

Motive may be a bad word in this Court but in good faith and for our proper purpose those two things have always been the underlying basis for allowing the privilege and where the person claiming that privilege does not make that out.

I say, there’s no basis for this or any other court in this county saying that the injured person who has a constitutional right of equal magnitude to be — to a remedy for that damage, to send that person away remediless.

Unless the Court has questions?

Warren E. Burger:

Thank you Mr. Brown.

Mr. Williams you have about three minutes left.

Edward Bennett Williams:

Thank you sir.

Under the instructions that the trial judge gave, it was entirely possible for the jury to have found that the alleged defamation was true and yet to permit recovery for the plaintiff.

Let me read the instruction.

The trial judge said, “If you decided —

Warren E. Burger:

What page are you in?

Edward Bennett Williams:

Page 11 of our brief, if the Court please.

The word is quoted in (Inaudible).

If you’ve decided that it’s a private defamation.

The plaintiff would be entitled to recover unless the defamatory matter was justified.

Now justification is established if the facts stated are true and are published with the justifiable motive.

So the jury was given free license to find that this publication was not with a justifiable motive and even thought the allegation was true, they could have been brought in a verdict in this case for the plaintiff.

Now, the counsel concedes that New York Times v. Sullivan is appropriate here for application.

So what counsel is arguing to this Court is that under New York Times against Sullivan that its possible that an alleged defamation may be true and yet a recovery may be had —

Byron R. White:

But I didn’t understand that to be his argument.

I thought his argument was that he concedes that New York Times v. Sullivan is fully applicable if this were defamation having to do with the — these public figures of record as a public figure and relevant to his qualifications as a candidate.

However, he argues that jury was entitled to find as the court instructed them in this case that the defamation had — did not touch upon or was relevant in any way to his fitness for the office for which he was a candidate but had to do with his long forgotten past in which the public had no interest and then if the jury found that then the law of New Hampshire is applicable and what the law of New Hampshire is of no business to this Court whatsoever if you accept his hypothesis —

Edward Bennett Williams:

If you accept —

Byron R. White:

— and the First Amendment has nothing to do with it.

Edward Bennett Williams:

If you accept the hypothesis that you can utter in the public dialogue a defamation concerning a candidate for high office that is irrelevant to his fitness —

Byron R. White:

If you accept this bifurcation then (Voice Overlap) the law in New Hampshire is absolutely no interest to this Court.

Edward Bennett Williams:

I suggest, if the Court please that it’s a constitutional impossibility to utter a defamation about a candidate for high office that is irrelevant because the mere fact that damage flows to him as he alleges makes it relevant if it influences the electorate.

If the Court please, counsel said in quoting the record, “that the columnist Pearson did not write this to influence the electorate but rather wrote it in a purely private vain,”

This does violence to the record because at page 194, the very page which he cites the witness Pearson said that he wrote this to let the voters — because the voters had a right to know the background of every candidate which is a precise reason for the constitutional rule articulated in Times v. Sullivan.

Edward Bennett Williams:

Thank you your Honor.

Warren E. Burger:

Thank you Mr. Williams.

Thank you Mr. Brown.

The case is submitted.