New York Times Company v. Sullivan – Oral Argument – January 07, 1964

Media for New York Times Company v. Sullivan

Audio Transcription for Oral Argument – January 06, 1964 in New York Times Company v. Sullivan

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Earl Warren:

Ralph D. Abernathy et al., Petitioners, versus L. B. Sullivan.

General Rogers.

William P. Rogers:

Mr. Chief Justice, may it please the Court.

Judge Pierce and I represent the four individual petitioners in this case which is a companion case to the one that was argued yesterday.

And if the Court will permit us, we would like to divide our time as far as the argument is concerned.

The courts of Alabama could have decreed that these four individual petitioners too, should be punished in a civil libel action.

No actual or special damages were awarded.

The trial court in charging the jury, merely said that punitive damages means such damages as are given as a kind of punishment to a defendant with the view to preventing similar wrongs in the future and that falsity and malice are presumed.

The jury responded by awarding a $500,000 punitive damages against these individual petitioners which was the largest such judgment in the history of Alabama up to that time.

I think it’d be —

John M. Harlan:

(Inaudible)

William P. Rogers:

I’m not sure that’s certainly in this case, there was no —

John M. Harlan:

(Inaudible)

William P. Rogers:

Yes.

Hugo L. Black:

They can be, given the evidence.

William P. Rogers:

I think it’s interesting in that connection Your — Your Honor that the largest fine that could’ve been imposed in a criminal libel action in the State of Alabama would have been $500.

Now, what did — what did these petitioners do to deserve this punishment?

A precise recital of the evidence brings into sharp focus the petitioners’ constitutional rights have been violated.

The petitioners are not in truth being punished for what they did or failed to do in this case or what they said and did elsewhere and who they are.

That the central fact of this case is that they are being — drastically punished because they were Negroes residing in Alabama, who’ve had the courage to speak out in the struggle to — to achieve the rights guaranteed by the Constitution for all citizens regardless of race or color.

Indeed, these petitioners, Dr. King and these four petitioners are the leaders of the civil rights movement in Alabama.

What was the proof in the case?

In the testimony offered by the plaintiff, there were only two brief references to the petitioners.

The first was that their names appeared in the advertisement as published by the New York Times in March 29th, 1960.

The second was that a few days before this suit was started, each received identical letters from the plaintiff demanding that they publish a retraction.

There was no evidence that the petitioner’s authorized the use of their names in the advertisement.

There was no evidence that they were members of the group or committee that inserted the advertisement in the paper.

And there was no evidence that they had any knowledge of the advertisement at all that appeared in the New York Times.

That’s all there was to the plaintiffs’ case, no other evidence.

The defendants then proceeded to show that the total failure of proof by the plaintiff was not a mere oversight.

William P. Rogers:

Mr. John Murray who is a volunteer worker for the Committee to defend Martin Luther King in the struggle for freedom in the South testified that on or about March 25th, 1960, he took the draft to the advertisement in question to New York Times and gave it to a Mr. Aronson, who was an employee of the paper.

Mr. Murray testified that in addition to the proposed advertisement with the names of a large group of individuals and a letter from A. Philip Randolph, saying that those persons were signed members of the Committee endorsed the advertisement.

Mr. Murray and Mr. Aronson, who were the two people who would know both testified at the trial and each testified that the names of these four petitioners were not on the list.

Mr. Murray further testified that the Executive Director of the Committee, a Mr. Rustin, some time later after the original advertisement had been submitted to the paper, decided that he wanted some prominent names from the South to be included among the sponsors.

So he proceeded to add to the original list submitted to New York Times, some names from a list he had in his desk of persons who belonged to the Southern Christian Leadership Conference, an entirely separate organization.

Now, because he was anxious to get the advertisement published, he decided not to take the time to ask the individuals for permission to use their names.

All of the petitioners testified, each as a spiritual and religious leader of his people.

All have been active in the cause for civil rights.

Each testified though that he had not been and was not a member of the Committee to defend Martin Luther King.

Non-authorized publication of the advertisement that appeared over New York Times or had any knowledge of the advertisement prior to its publication, the cross examination was brief and nothing was to develop — was developed to cast any doubt on the accuracy of the testimony of these petitioners.

Why then, it might be asked, was such harsh punishment imposed?

It is stated that it is because the petitioners somehow ratified the publication of the advertisement.

After the publication of this advertisement, there was considerable publicity about it in Alabama.

It was finally decided that several lawsuits should be commenced by certain state officials but there was a difficulty.

Respondent and others like him obviously had no actual or special damages and a mere technical victory would have not have served their basic purpose of the litigation which was to intimidate.

So how could they accomplish the end that they sought whether it was decided to base the lawsuits on Title 7, Section 914 of the Code of Alabama which provides that a public official in order to recover punitive damages must make a written demand on the person who published the material demanding a public retraction five days before bringing a suit.

So few days before starting this lawsuit, the plaintiff wrote a letter to each petitioners demanding a retraction of the fall — false and defamatory matter published by you in the New York Times on March 29th in this prominent public manner as the original publication.

Parenthetically, the letter only set forth two paragraphs from the advertisement and these were out of context.

Petitioner according to the testimony never saw the advertisement until the lawsuit was started.

Now, none of these petitioners, after they received this letter and during a few days before the suit was started, answered the letter or attempted to place an advertisement in the New York Times saying that they had nothing to do with the original advertisement.

This is the — the basis, the sole basis for the claim of ratification.

What did the petitioner say about it when they were asked?

Well, Reverend Seay was asked why he did not reply to the letter.

He testified, and this on page 789 of the record, “Well in the first place, I was so amazed about the complaint and about the ad that I was afraid to make any reply to it until I had some legal advice for fear I might incriminate myself.

I had no knowledge of it whatsoever.”

When Reverend Shuttlesworth, page 789 of the record, was asked why he did not reply to the letter, he said, “I had not written anything to be retracted as the letter demanded and neither had I seen a material which the letter call upon me to retract.”

When Reverend Abernathy was asked why he did not make a retraction, he replied, “Well, I didn’t make a retraction number 1 because I did not publish the ad and I felt that I was being asked to retract something that I did not put forth.”

Reverend Lowery, who — page 802 and it’s interesting I think, in this case that he didn’t receive the letter demanding retraction until after the complaint had been receipt — had been — had been served on him.

When he was asked the question he said, “As I recall, the letter didn’t for a reply, it asked me to republish a retraction of equal size or something like that to an ad that — that appeared in New York Times.

I had no knowledge of the ad and so I could make no retraction.”

William P. Rogers:

Of course, the claim of ratification is auspicious.

Petitioners were under no obligation either in law or as a matter common sense to publish or retraction in the New York Times as demanded by the letter.

The statute which — which is relied on by the respondent refers only to publishers of the alleged libel.

It does not require persons who did not publish a libel to retract it.

In fact, the letter from the plaintiff recognizes this and demands retraction of the defamatory matter published by you.

It did not say, retracted defamatory matter — I warn you whether published by you or not.

Counsel for respondent now says, that it was the petitioners’ silence, not their failure to retract for which they’re being punished.

But certainly, the letter from the respondent did not call upon the petitioners to speak.

It did not ask for a reply.

It demanded a retraction in the New York Times.

In fact, I think it’s interesting to notice that the letter which is really the basis of this whole lawsuit was — gave every indication of being a “trick and device” because it was dated March 8, 1960.

And it referred to something that — that appeared in the New York Times on March 29th, 1960 so that the petitioners in reading the letter quite nastily would have thought it was a trick.

It was dated March 8 referring to an advertisement that appeared in the letter that’s set on March 29.

Arthur J. Goldberg:

(Inaudible)

William P. Rogers:

As to the other suit Your Honor it was delivered up roughly eight days before the litigation was started.

Arthur J. Goldberg:

(Inaudible)

William P. Rogers:

That is correct —

Arthur J. Goldberg:

(Inaudible)

William P. Rogers:

It says five days.

Arthur J. Goldberg:

(Inaudible)

William P. Rogers:

The settled law of Alabama is that mere silence concerning it does not create liability for a tort committed by another person with whom there was no agency or other such relationship.

The Alabama Rule as to tort as declared in Burns against Campbell, which is 71 Alabama 271, and W.E. Belcher Lumber Company against York 20 — 245 Alabama 286.

Ratification occurs only as the Court said in the Belcher case where the relationship of agency exists and the principle derives a benefit from the Act beyond the scope of the agency.

Even in such a case, ratification occurs only after the principle — after having been fully informed, fails to express his data — his dissatisfaction after a reasonable time.

The Supreme Court of Alabama pointed out in the Belcher case that in tort cases, mere silence or non-interference does not amount to a ratification.

That is the settled law of Alabama.

John M. Harlan:

(Inaudible)

William P. Rogers:

Yes, it is Your Honor.

In Leach against Peirson, this Court, in the opinion of — of — written by Justice Holmes held that a man cannot make evidence for himself by writing a letter containing the statement he wishes to prove and then claim a failure to answer as an admission, this is a settled law too in Alabama.

In fact, the Supreme Court decision in the Leach case was cited and relied upon in the decision of the Supreme Court of Alabama in Fidelity & Casualty against Beeland Company.

William P. Rogers:

Now, notwithstanding this — notwithstanding the fact that there was no evidence against these petitioners and they’ll — that the law of Alabama makes it clear that silence cannot be construed as — as ratification of a tort committed by another who is totally unconnected with the person concerned.

The Courts of Alabama have found a judgment of $500,000 against these petitioners.

Such a basis for imposing liability is utterly without foundation in law or reason.

I believe that any fair reading of the record causes one to reach the conclusion that this case represents a perversion of the judicial process with no evidence to support the verdict and the case has it — as its purpose the intimidation of these petitioners and others like them who speak off for equality and justice for the Negro in Alabama.

This Court said in (Inaudible) that it retains the authority to nullify action when it encroaches on freedom of utterance under the guise of punishing libel.

The Court held in Garner and Thompson that when the record contains no evidence to support a finding that the petitioners’ rights of due process of law have been violated.

Now that is this case.

And we contend that the petitioners’ rights of due process have been violated.

But this case is much more significant than merely a case where there’s no evidence to support a finding.

It is clear that this case is a direct attack too on the constitutionally protected rights set forth in the First Amendment.

Without attempting to repeat the arguments made yesterday, or the arguments made in the amicus brief of the Washington Post and the Chicago Tribune, we merely submit, one That a fair reading of the advertisement discloses simply an attempt to speak up on a crucial public issue, not an attack on any individual.

And two That freedom to criticize and comment in good faith upon the conduct in office of public officials even if overstated and exaggerated is constitutionally protected.

Otherwise as the Court points in the Farmers Union case, all remarks even faintly objectionable, would be excluded out of an excess of caution.

A newspaper, however carefully it may be run cannot possibly check on every detail and every statement that is made on the great public issues of our time.

And public officials, I have to think quite naturally that the arguments of — and the statements of those who oppose them are misleading and defamatory.

The punitive procedures such as were used in this — in the related cases were readily available to public officials, it would present a most serious threat to a free press, possibly, the most serious threat to free press in this country during this century.

If this case should stand, many newspapers, magazines, radio and television networks I believe, would have to give very serious consideration to limiting their circulation or coverage to certain states, otherwise they could well be destroyed or severely damaged by a flood of punitive litigation.

And of course, it goes without saying that such a result would be most destructive to our national interest particularly if it resulted in stifling public discussions on issues such as civil rights and the other great issues of our time.

This case is not merely a case of denial of due process.

This case represents a federal attack under the guise of a civil libel action on freedom of the press as represented here by the New York Times yesterday and freedom of speech and assembly as represented by Reverend Abernathy, Shuttlesworth, Seay and Lowery.

It is the violation of the First and Fourteenth Amendment of the Constitution.

I like to say in closing my remarks that three of these petitioners have had their automobiles seized and sold at public auction, sheriff sale.

Two of them have had their land seized and sold at public auction, three have had — have had to move out of Alabama, all have spent a great deal of time and money in this and related lawsuits.

Arthur J. Goldberg:

(Inaudible)

William P. Rogers:

Yes it is, Your Honor.

Arthur J. Goldberg:

(Inaudible)

William P. Rogers:

Well, Your Honor, I’m not sure that — I’ll attempt to find out.

Arthur J. Goldberg:

(Inaudible)

William P. Rogers:

Mr. Nachman says no.

John M. Harlan:

(Inaudible)

William P. Rogers:

Yes, Your Honor.

Well, that I think — that was — but while it was pending on appeal, that’s alright.

(Inaudible)

William P. Rogers:

In other words, three of them have had their automobiles sold at sheriff sale.

Two have had their lands seized and sold at public auction.

Three have moved out of Alabama.

All of them have spent a great deal of time and money in litigation, in this litigation and related litigation.

Now, Mr. Nachman, rather —

Hugo L. Black:

In the record, Mr. Rogers?

William P. Rogers:

About the time spent?

Hugo L. Black:

(Inaudible) you just stated?

William P. Rogers:

Well, I think so Your Honor.

I’m not sure it’s in the — I’m — I’m sure it’s printed in here that their automobiles have been seized and sold, yes.

Hugo L. Black:

In connection with this matter.

William P. Rogers:

Yes.

Hugo L. Black:

If you just going to (Inaudible) refer us to the pages?

William P. Rogers:

Yes, I could Your Honor.

This Court said in Bates against Little Rock, that freedoms are protected not only against heavy handed fraudulent acts but also from being stifled by more subtle government interference.

So far, in this case, those who brought the case has had been successful.

If this judgment is permitted to stand, it will be a mile forerunner of what will follow.

We respectfully ask this Court to dismiss this suit and in so doing preserve and protect the constitutional rights of these petitioners and others who seek not to defame any person but seek simply to achieve equal rights and dignity for all persons regardless of race or color.

Earl Warren:

Judge Pierce.

Samuel R. Pierce, Jr.:

Thank you.

If it pleases the Court.

I should like to address my remarks to the question of fair trial and if time permits to discuss briefly the question of fair comment and to close by summarizing the position of the petitioners in this case.

A present litigation is but one of several libel suits instituted by a number of state and local officials in Alabama on the basis of an advertisement which appeared in the New York Times on March 29th, 1960.

The sole purpose of this litigation is to suppress and punish expressions of support for the course of racial equality and to try to keep those who are actively engaged in their fight for civil rights, such as the petitioners in this case from continuing to participate in that stroke.

It is the petitioners’ contention that the injustice of this action which encroaches on freedom of speech under the guise of punishing for libel is magnified by the fact that the petitioners fail to receive a fair trial.

This trial was conducted in an atmosphere of racial bias, passion and hostile community pressures.

The atmosphere under which this trial was conducted is quickly sensed by bruising the record.

Samuel R. Pierce, Jr.:

One has only to thumb through this record to find a number of interesting things.

One, you’ll find that the record makes reference to Mr. M.R. Nachman, Jr.

To Mr. Embry, but when to get to the lawyers for the petitioners who happened to be Negroes, they are referred to as Lawyer Gray and Lawyer Crawford.

I think it’s a shame in this day in time for a record to come up to this great Court where so many pronouncements of equality and freedom have been made particularly in recent years, had to have a record of this kind before it.

To be sure it is done by the stenographer, but the stenographer I think generally speaking reflects the attitude and the demeanor of the court and the customs and the usages of what goes on in a place where the court is located.

Arthur J. Goldberg:

(Inaudible)

Samuel R. Pierce, Jr.:

Is the record approved?

Arthur J. Goldberg:

(Inaudible)

Byron R. White:

Yes.

Samuel R. Pierce, Jr.:

Yes, yes.

William J. Brennan, Jr.:

Did the trial judge make that distinction, addresses counsel (Inaudible)

Samuel R. Pierce, Jr.:

Yes, he — he does.

In fact, I will go into — right now, sir on page 570 of the printed record.

The lawyers for the plaintiff and the times were introduced to the jury panel as a mister, but those for the petitioners were introduced as Fred Gray, Solomon Seay, V. E. — V. Z. Crawford.

I want —

Byron R. White:

(Inaudible)

Samuel R. Pierce, Jr.:

That — that’s the judge, Judge Jones.

And on one occasion, one of the plaintiff — one of the counsels for the plaintiffs mispronounced the word Negro as Niger and went in a subsequent colloquy with the judge, he said that’s the way he’d been pronouncing it all of his life.

Now, also in final argument to the jury, plaintiff’s counsel made a highly prejudicial, I think, race-baiting remarks to the jury which should have been censored by the trial court.

And I quote, “In other words, all of these things that happened did not happen in Russia where the police ran everything.

They did not happen in the Congo where they are still — where they still eat them, they happened in Montgomery, Alabama, a law abiding community”.

Now, I think when the Court thinks that this remark was made about the time when there was a great deal of civil strife in the Congo and there was a great deal of public statements made in newspaper articles printed about that civil strife and about how the Congolese mistreated Whites, raped and so forth.

The intensity of that remark can be felt here.

Now, it is difficult to see how there can be equal protection under the laws and due process in a court where there’s not even equality of courtesy or recognition of human dignity.

Now, I’d like to talk for just a few minutes about the presiding judge of that trial, Judge Walter B. Jones.

Now, Judge Jones in a companion case, as I said before this — there are — this case is but one of several pieces of litigation arising out of the same set of facts.

And James B. Abernathy, Judge Jones made a statement on open court that the Fourteenth Amendment was a pariah, an outcast that the case would be tried in accordance with White men’s justice, not in accordance with the Fourteenth Amendment.

The exact words of Judge Jones were very interesting.

He said, “I would like to say for those here present and for those who may come here to litigate in the future that the Fourteenth Amendment has no standing whatever in this Court, it is a par ” —

Hugo L. Black:

(Inaudible) in the record?

Samuel R. Pierce, Jr.:

This is — is not in the record sir, this is in a companion case and this was actually yesterday.

I noticed that counsel went in to this companion cases, this is just another one, it’s the Parks case which is a companion case is in the record, this is

Hugo L. Black:

One of the libel —

Samuel R. Pierce, Jr.:

— just another —

Hugo L. Black:

Another libel case?

Samuel R. Pierce, Jr.:

This is another libel case.

Hugo L. Black:

One that —

Samuel R. Pierce, Jr.:

And I think that —

Hugo L. Black:

(Inaudible)

Samuel R. Pierce, Jr.:

It’s the same nature.

In fact, they have the same defendants.

Brought in the court.

Samuel R. Pierce, Jr.:

The same advertisement, it’s exactly the same case.

And this is the same judge who tried it.

And I think that where the words are the judge’s own where he has actually stated them in an open court that they should be brought to the attention of — of this Court.

(Inaudible) where are you reading?

Samuel R. Pierce, Jr.:

I’m reading from his — his statement that he made from the bench on February 1, 1961 in the Circuit Court of Montgomery, Alabama.

His remarks are printed in full in the Alabama Lawyer and its entitled “Judge Jones on Courtroom Segregation”.

And these are his remarks —

(Inaudible)

Samuel R. Pierce, Jr.:

The Alabama Lawyer pages 190 through 192 and the month of the issue, I don’t have it, what’s the month of the issue?

(Inaudible)

Samuel R. Pierce, Jr.:

Volume 22?

Volume 22.

John M. Harlan:

(Inaudible)

Samuel R. Pierce, Jr.:

No, it’s not a lower — well, it — it does contain law review type articles but this is just — this — it’s a — it’s an official journal as they say of the Alabama Bar.

It contains articles, legal law articles but this just happens to be his statement that he made in open court, it’s reprinted in the Alabama Lawyer.

Hugo L. Black:

Is it printed in the court record?

Samuel R. Pierce, Jr.:

What’s that sir?

Hugo L. Black:

It’s printed in court record?

Samuel R. Pierce, Jr.:

It’s printed in the court record in this case, yes sir.

In the —

Hugo L. Black:

In this case.

Samuel R. Pierce, Jr.:

In the — no, in the case of James versus Abernathy, it’s in the court record.

He made the statement in open court.

Hugo L. Black:

Where is it then?

Samuel R. Pierce, Jr.:

Right now that case is pending in this — I believe in the Circuit —

(Inaudible)

Samuel R. Pierce, Jr.:

Their waiting, if I understand, a motion for a new trial, it’s a sort of waiting the outcome, I imagine, of this case.

There are a number of cases, they’re about four or five of them down —

(Inaudible)

Samuel R. Pierce, Jr.:

— in Alabama.

What’s that?

Is that (Inaudible)

Samuel R. Pierce, Jr.:

No, no.

It was not tried first.

The Sullivan case was tried before it.

This statement was made after the trial of the Sullivan case.

Is James (Inaudible) official?

Samuel R. Pierce, Jr.:

James is another official, yes sir.

William J. Brennan, Jr.:

Commissioner like Sullivan?

Samuel R. Pierce, Jr.:

He’s a — he’s a commissioner, yes sir.

William J. Brennan, Jr.:

Half a million dollar verdict?

(Inaudible)

Samuel R. Pierce, Jr.:

Half — half a million dollar judgment yes.

Now —

Hugo L. Black:

How many lawsuits?

Samuel R. Pierce, Jr.:

What’s that sir?

Hugo L. Black:

How many judgments?

Samuel R. Pierce, Jr.:

Five suits, I understand it pending at the present time.

Hugo L. Black:

All with half a million dollar judgment?

Samuel R. Pierce, Jr.:

All with — all except I think the one involving them — the — the governor, I think is for $1 million.

The others are for $500,000.

Earl Warren:

Would you mind reading those words of the judge, (Inaudible)

Samuel R. Pierce, Jr.:

Yes.

Yes, sir.

I — I — he said much — much has been said at the bar and out of the hearing of the trial jury as to the supposed requirements of the Fourteenth Amendment directing the trial judge of the court of the sovereign state how to conduct a trial before a jury in the Courts of Alabama.”

I would like to say for those present and for those who may come here to litigate in the future, that the Fourteenth Amendment has no standing whatever in this Court.

It is a pariah and an outcast.”

And it goes on and says, “A number of other things he ends up with, we will now continue the trial of this case under the laws of the State of Alabama and not under the Fourteenth Amendment and in the belief and knowledge that the White men’s justice.

A justice born long centuries in England, brought over to this country by the Anglo-Saxon race and brought today to it’s full flower here, a justice which has blessed countless generations of Whites and Blacks will give the parties of the bar of this Court regardless of race or color equal justice under law.”

These are some of the quotes, there are many others but this article run — I mean, not article but these words were uttered by Judge Jones, take about three pages.

(Inaudible)

Samuel R. Pierce, Jr.:

Yes, that was the occasion sir.

What happened here was, a lot of Negro spectators came to the courtroom one day and they filled up the courtroom.

And Judge Jones said he realized what they were doing in trying to end the segregation in the courtroom and he was not going to stand for it.

He said, “The presence of this crowd of Negro spectators, occupying every seat from the front row to the back row of the courtroom is — is to test and challenge the right and power of the presiding judge to direct the seating of spectators in the courtroom.

And here, under the constitutional laws of Alabama, he exercises in the case on trial a solemn judicial power of the state.”

He goes on to say, “From this hour forward, in keeping with the common law of Alabama and observing the wise and time honored customs and usages of our people.

Spectators will — I’ll leave something up but it ends up, spectators will be seated in this courtroom according to their race and this for the orderly administration of justice and the good of all people coming here lawfully.”

(Inaudible)

Samuel R. Pierce, Jr.:

Yes, sir.

Hugo L. Black:

Is there anything like that in this record?

Samuel R. Pierce, Jr.:

In the — in — in this particular record, there are objections made — constitutional objections have been raised about a segregated courtroom, yes sir.

But the judge, who is Judge Jones, decided that the motions under which the objections were made had lapsed and I want to get into that a little while and because I think his action there was strictly arbitrary and capricious and discriminatory.

(Inaudible)

Samuel R. Pierce, Jr.:

Well, what — what happened here was this, just as well take this now.

Let me go back a little bit and say that the — the respondent here contends that the constitutional objections that I’ve been discussing are not properly before this Court because they were not raised in a timely fashion.

But if the Court will examine the amended demurrers, they will see that even at that early stage of the trial, there was a — an objection to any recovery because it was claimed by the petitioners that it would be violate the Fourteenth Amendment and that it would deprive the petitioners of their property without due process of law, would deny them equal protection of justice and would abridge the privileges and immunities of the petitions.

They then make — they then again made constitutional objections and motions to exclude evidence and then finally, after the trial, they made motions for new trials and these — that in here, they made very extensive objections, constitutional objections.

Samuel R. Pierce, Jr.:

Now, the — the respondent claims that — that these objections shouldn’t count and should not be before this Court because they involved lapsed motions.

Now, we believe that the — the —

William J. Brennan, Jr.:

(Inaudible)

Samuel R. Pierce, Jr.:

Well —

William J. Brennan, Jr.:

(Inaudible)

Samuel R. Pierce, Jr.:

Well, I’m gonna — I — I — I — I will — here’s what happened.

After these motions for a new trial were made and they were made timely within the 30 day period, the petitioners appeared in court on December 16th and all the parties to the lawsuit, at least the times and the petitioners, they wanted to get a long adjournment.

Under the Alabama law, you can only adjourn a motion for new trial for 30 days at the time.

So these petitioners or attorneys for the petitioners, they said, well (Inaudible) — they thought that as the New York Times was going to come in and adjourn the motion until it was heard, they would not have to appear in court.

And they did not appear in court until it was time to argue and that was March 3rd, 1961.

And when they walked into the Court on March 3rd to argue this case, the judge refused to hear argument.

He said that the motions had lapsed, that — that they did not appear at the time they were adjourned and therefore they had lapsed.

Now, there are no cases in Alabama precisely on point.

The respondent cites none and we were unable to find any in our search of the Alabama cases.

The respondent does cite cases on lapsed motions but this involved an individual plaintiff or defendant who was allowed a motion to lapse.

They did not involve as here two or more plaintiffs or defendants who had each made a motion for a new trial and one had appeared to adjourn the hearing of the motion and the other had not and the court then decided on the day of the argument that the party who had failed to appear on a date, the matter was adjourned could not argue because he allowed it to lapse, announced precisely on that.

I’d — I would go further here Your Honors and say that state judges have an obligation to protect fundamental constitutional rights of individuals.

As this — as this court had said as far back is Gibson versus Mississippi in 1895, “Upon the state courts equally with courts of the union rest, the obligation to God, enforce and protect every right guaranteed or secured by the Constitution of the United States.”

More recently, in Johnson versus Virginia, this Court stated that the state has a duty to deny no one equal protection.

I think that the action of the judge here was arbitrary, whimsical and capricious.

And for that reason alone, can be set aside and the objections that are raised can be looked at by this Court.

Moreover, this Court has held that alleged violations of fundamental constitutional rights when plainly and reasonably made, are not to be defeated under the name local practice and such violations are reviewable by this Court even if they were not raised strictly in accordance with local forms of practice and procedure and — procedural technicalities.

Therefore for all of those reasons —

Hugo L. Black:

I could agree with you, that action was in this case (Inaudible) in another case.

Samuel R. Pierce, Jr.:

It’s in this case sir.

This is in this case.

Hugo L. Black:

I think you were now talking about the statements he made in this case?

Samuel R. Pierce, Jr.:

Yes, sir.

In this case, yes sir.

Arthur J. Goldberg:

Judge Pierce, (Inaudible)

Samuel R. Pierce, Jr.:

Well, actually, what he said was, he — he endorsed the papers only that the — that the — that the motion had lapsed.

Actually, all he said to him when they asked to be heard, he just said you’re dead, you’re dead and that’s all.

He wouldn’t even listen to them.

Arthur J. Goldberg:

(Inaudible)

Samuel R. Pierce, Jr.:

I don’t know —

Arthur J. Goldberg:

New York Times, the motion came up (Inaudible)

Samuel R. Pierce, Jr.:

It is — I’ve understand it’s a — it’s — it’s at least, I think dated at the same time.

Potter Stewart:

The counsel for the New York Times did keep their time alive, did he?

Samuel R. Pierce, Jr.:

Yes, they — they did.

They kept — they went in and got adjournments but I — but I — I submit to — to the Court that I think you will realize that as a matter of just general practice in law when you have cases involving several defendants or several plaintiffs, it’s often a practice for one of the attorneys, but one of the plaintiffs or the attorney — or defendants to go down to the court and get an adjournment for time with the understanding when that — whenever the case is argued, the other attorneys will be present.

This is just a matter of common sense in saving time, that’s all that these —

William J. Brennan, Jr.:

(Inaudible)

Samuel R. Pierce, Jr.:

— lawyers were doing.

William J. Brennan, Jr.:

(Inaudible) Mr. Pierce, this case is tried together before the same period?

Samuel R. Pierce, Jr.:

Yes, yes, this — this one case.

This was a — this was a — so like a joint action.

Arthur J. Goldberg:

Counsel for the plaintiff, in taking the motions, (Inaudible) on a motion for a new trial.

Samuel R. Pierce, Jr.:

The — the —

Arthur J. Goldberg:

(Inaudible)

Samuel R. Pierce, Jr.:

No, no.

Arthur J. Goldberg:

(Inaudible)

Samuel R. Pierce, Jr.:

No, no.

I should like in just my remaining time to — to briefly summarize our — our position in this case.

It — it is our position here that there was absolutely no cause or connection between the petitioners and the alleged libelous statement.

There is no evidence to show that the petitioners authorized published or ratified this statement in question.

Consequently, the recovery against the petitioners is a violation of the Fourteenth Amendment and that it amounts to a denial of due process.

Moreover, we submit that a fair reading of the entire advertisement involved in this case discloses simply an attempt to speak on a crucial public issue.

It is not an attack upon any specific individual therefore it’s protected by the First Amendment.

We further submit that even if this can properly be — properly be characterized as a libel case, the utterances here made as they were in good faith and without proof of any special damages are constitutionally protected since they relate even on the respondents’ theory solely to criticism of his conduct as a — an elected official.

This —

William J. Brennan, Jr.:

Did the plaintiffs (Inaudible) if I may (Voice Overlap) —

Samuel R. Pierce, Jr.:

Yes, sir.

William J. Brennan, Jr.:

I am right, am I that Sullivan sued New York Times and these four individual defendants —

Samuel R. Pierce, Jr.:

Right.

William J. Brennan, Jr.:

— with the same complaint but —

Samuel R. Pierce, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And the — the Times is represented by one counsel or counsels and the individual defendants by other at —

Samuel R. Pierce, Jr.:

Correct.

William J. Brennan, Jr.:

— the same trial.

Samuel R. Pierce, Jr.:

At the same —

William J. Brennan, Jr.:

Is that right?

Samuel R. Pierce, Jr.:

— trial, yes sir.

William J. Brennan, Jr.:

And the same — before the same jury and what the jury returns, separate —

Samuel R. Pierce, Jr.:

No sir.

William J. Brennan, Jr.:

— awards?

Samuel R. Pierce, Jr.:

A single —

William J. Brennan, Jr.:

A single —

Samuel R. Pierce, Jr.:

Single verdict.

William J. Brennan, Jr.:

A single award, $500,000 against the Times and $500,000 each against these individuals, is that it?

Samuel R. Pierce, Jr.:

No, it’s a joint.

William J. Brennan, Jr.:

Its joint, (Voice Overlap) —

Samuel R. Pierce, Jr.:

Its not — I think its $500,000 against all defendants.

William J. Brennan, Jr.:

Two $500,000 award.

Samuel R. Pierce, Jr.:

No, one $500,000.

William J. Brennan, Jr.:

One against all —

Samuel R. Pierce, Jr.:

Against all.

William J. Brennan, Jr.:

Against all, oh, I see.

Samuel R. Pierce, Jr.:

Yes sir.

William J. Brennan, Jr.:

And then it was the time which — then both — both the individuals and the Times filed a — motions for new trial, right?

Samuel R. Pierce, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And then the Times put on the burden of postponing the argument.

Samuel R. Pierce, Jr.:

They’ve adjourned it a couple of times, yes sir.

Potter Stewart:

But it’s not — it’s not unheard of or when you have a verdict against two or more defendants or one of them to appeal and the other not to appeal.

Samuel R. Pierce, Jr.:

Yes, but they both —

Potter Stewart:

If one to asked for a new trial and other —

Samuel R. Pierce, Jr.:

But they both did —

Potter Stewart:

— didn’t ask for a new trial

Samuel R. Pierce, Jr.:

They both did asked for new trials and they —

Potter Stewart:

(Inaudible)

Samuel R. Pierce, Jr.:

And — and the motions for a new trial were timely filed.

Potter Stewart:

(Inaudible)

Samuel R. Pierce, Jr.:

Understand that Your Honor.

Potter Stewart:

Yes, I do —

Samuel R. Pierce, Jr.:

Yes, originally, they came and they’d filed and they appeared at the — at the time they were required.

The only time they did not appear, for — was for the simple adjournments.

And I submit to the court it’s rather nonsensical after a run down of the court, have a lot of lawyers come down to court just to simply get a clerk or the judge to say —

William J. Brennan, Jr.:

No.

We might —

Samuel R. Pierce, Jr.:

— “I’ll give you another 30 days.”

Potter Stewart:

We might — we might agree with you that it’s nonsensical and — and unusual but if that’s the Alabama practice, that’s the Alabama practice.

Don’t you agree with that?

Samuel R. Pierce, Jr.:

Well, I do not think that there is — I — I do not think that that is —

Potter Stewart:

The Alabama practice.

Samuel R. Pierce, Jr.:

To be perfectly honest with you, the Alabama practice — I think that when we bruise this — when you bruise the — or I shouldn’t say bruise, when you go back and study the practice as you often have done in —

Potter Stewart:

Yes.

Samuel R. Pierce, Jr.:

–such cases — I think you’d find that this is not necessarily the practice.

And we couldn’t find the case and then — and the cases the cite it are not really on point where they have these joint kind of cases where one, just one defendant after having made the motion timely is said to have allowed it to lapse merely because he does not appear at the date the cases just put over for a hearing.

Arthur J. Goldberg:

Judge Pierce, what you’re really saying is, (Inaudible) in the Alabama practice (Inaudible) where a single defendant doesn’t show up, you assume the motion had lapsed.Another thing is that several defendants were there (Inaudible) the cases then put over.

Samuel R. Pierce, Jr.:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Samuel R. Pierce, Jr.:

Exactly.

Exactly sir.

Arthur J. Goldberg:

There was no Alabama precedent.

You take the latter situation because the motion (Inaudible)

Samuel R. Pierce, Jr.:

As we could not find any and they do not cite it here that’s my statement.

John M. Harlan:

When the Times got the adjournment on the motion for a new trial, does it say it was speaking for all the defendants?

No record.

Samuel R. Pierce, Jr.:

No, there’s no record of that.

There’s nothing in the record on that.

John M. Harlan:

Were there any statements during the trial with exceptions taken by one defendant put in order to the benefit (Inaudible)?

Samuel R. Pierce, Jr.:

No, no.

John M. Harlan:

(Inaudible)

Samuel R. Pierce, Jr.:

I don’t believe so.

No sir.

Hugo L. Black:

(Inaudible) as I understand it what you’d do with this whole (Inaudible) the court was in error in not passing on the motion for a new trial, it has to go back —

Samuel R. Pierce, Jr.:

Well actually sir —

Hugo L. Black:

(Inaudible) in the merits just to decide on the — let them act again on the motion for a new trial.

Samuel R. Pierce, Jr.:

Well actually sir, we — we think that this case should be decided on other grounds so it be totally reversed and not sent back for a new trial.

I bring this —

Hugo L. Black:

But I — I said that because —

Samuel R. Pierce, Jr.:

Yes sir.

Hugo L. Black:

(Inaudible) a great deal of your time on that —

Samuel R. Pierce, Jr.:

Yes.

Hugo L. Black:

— particular —

Samuel R. Pierce, Jr.:

Yes.

Hugo L. Black:

— point —

Samuel R. Pierce, Jr.:

Well I — I did —

Hugo L. Black:

(Inaudible)

Samuel R. Pierce, Jr.:

I hadn’t — I hadn’t planned to spend as much time as I did but it seems —

Hugo L. Black:

Well, I can understand —

Samuel R. Pierce, Jr.:

— to be an interesting subject to the justices of the Supreme Court.

Hugo L. Black:

I can understand —

Samuel R. Pierce, Jr.:

Thank you very much.

I think I like to reserve the rest of my time for rebuttal.

Earl Warren:

You may.

Mr. Nachman.

Roland Nachman, Jr.:

May it please Court, Mr. Chief Justice.

It’s a little difficult to know whether I should discuss this case or another case that was tried.

The record of which is not before this Court.

We take sharp exception.

The statements of Judge Pierce and of Mr. — General Rogers regarding matters which we say and we say — we say correctly are not involved in this case.

Matters which were not raised at the trail of this case with matters which had most were presented in the Supreme Court of Alabama and in this Court and at worst, matters which don’t even relate remotely to this case but to another case that was tried three months after this case was over.

If I may begin with General Rogers’ argument —

Earl Warren:

Was this statement considered by the Alabama Supreme Court?

Roland Nachman, Jr.:

The — the — what — what statement was it?

Earl Warren:

The one you’re — that you’re objecting to, bringing in to this case?

Roland Nachman, Jr.:

The — the — one of — by — that the trial judge made?

That — that was the one I was referring to Your Honor.

Earl Warren:

I say, was that considered in this case —

Roland Nachman, Jr.:

No sir.

Earl Warren:

— by the Alabama Supreme Court?

Roland Nachman, Jr.:

No sir.

It couldn’t have been.

It — it wasn’t even in the record.

The case hasn’t even been appealed.

Earl Warren:

I thought you said — I thought you said that this was dragged into the — into the case before the Alabama Supreme —

Roland Nachman, Jr.:

No, sir.

Earl Warren:

— Court and this Court.

Roland Nachman, Jr.:

No, sir.

What I — I meant to say was that some of the points that counsel have made, not that particular point —

Earl Warren:

Yes.

Roland Nachman, Jr.:

— but some of the points were raised for the first time before the Supreme Court of Alabama.

They were not raised at all in the trial court when this case was tried or — and — and as to the James case, I think I can dispose of that quickly.

That hasn’t even been appealed Your Honors.

That there — there is no record of that case.

And in connection with records, in answer to Mr. Justice Goldberg’s question, the trial court does not and did not approve the record of this case.

As a matter of fact, there is a statutory procedure and we’ve cited the statute in the appendix to our brief.

“Whereby any person, any party who has an objection to anything that is transcribed in the record which that party thinks is inaccurate, he can make an objection before the trial judge.

And then the matter is brought to the attention of the trial judge and the trial judge rules on the question of whether or not the court reporter has accurately and properly transcribed the record.”

But in the absence of such a motion, the trial court has nothing whatever to do with it.

That the — the record in Alabama is certified by the clerk of the court and by the court reporter who transcribed the testimony and that is it.

Unless there is an affirmative motion made by a party objecting to any part of the record as being improper, the trial court has nothing to do with it.

And we had nothing to do with it, it wasn’t our record.

The Times had it prepared.

The other defendants all of whom were defendants jointly in this lawsuit are — are appealed and it was their record.

What the Court — the court reporter’s designation of their counsel didn’t even get before the court with — that the trial court.

And as a matter of fact, it wasn’t even raised in the Supreme Court of Alabama where over 80 assignments of error were made by these defendants and that we submit is the spurious nature of these objections that are now brought before the highest court in the land, matters that weren’t even mentioned below much less raised and disposed of and this — this record does not carry the stamp of approval of the trial court because there never was any occasion for him to consider it.

William J. Brennan, Jr.:

(Inaudible)

Roland Nachman, Jr.:

No, he did not Your Honor and there was nothing in — this — this is a court reporter’s designation in a record that was transcribed months after this trial was over.

It couldn’t possibly have had any effect whatever on — on the — the conduct of this trial, it couldn’t have gotten before the jury.

It — it was simply a court reporter’s designation when he wrote the transcript up and as — as I have said, there was ample opportunity for these petitioners to accept to the record, to ask the trial court, to direct the court reporter to change it if it has been improper.

We certainly wouldn’t have objected to it or — or — but it wasn’t done.

Earl Warren:

(Inaudible) the counsel, they don’t object to this to — to this transcript on the grounds that it was incorrect.

They object to what was actually said and done at the trail.

Now for instance — for instance, what I’m taking out is this, counsel said that the judge introduced the lawyers.

The white lawyers as Mr. so and so, Mr. so and so and Mr. so and so and when he introduced the Negro lawyers, he introduced some as John Jones, Frank Smith and so forth.

They’re not objecting in that respect to an incorrect transcript.

They’re objecting to what was done in the courtroom, isn’t that right?

Roland Nachman, Jr.:

No, Mr. Chief Justice.

That is not my understanding in the brief.

Roland Nachman, Jr.:

There is no mention made of any address to any counsel and as a matter of fact —

Earl Warren:

Well, I’m — I’m just talking —

Roland Nachman, Jr.:

On —

Earl Warren:

— about what was said —

Roland Nachman, Jr.:

In — In —

Earl Warren:

— here in the argument.

Roland Nachman, Jr.:

Yes sir.

In oral argument, we would like to call the Court’s attention to the — the introduction of counsel and — on page 570, every member of the firm of Lord Day & Lord was read out to the jury and this is 5 — page 570 and then the names of the attorneys for the individual defendants and there’s no mister in any of them.

There was a mister used in the preceding paragraph, there was none in this paragraph and this paragraph includes the names of — as I say, of every single member of the firm of Lord Day & Lord, this is outside the record but the Court was handed a letter here so that he could identify each member of the firm to see whether there was any connections with — with any member of the jury or venire.

Earl Warren:

Were the Negro — Negro lawyers in that case members of Lord (Voice Overlap) —

Roland Nachman, Jr.:

No, sir.

But they represented the other defendants, I’d say they were — Your Honor, the — there were — there was a corporate defendant of Times which was represented by Lord Day & Lord and —

Earl Warren:

Yes.

Roland Nachman, Jr.:

— some Alabama counsel.

Earl Warren:

Yes.

Roland Nachman, Jr.:

And then there were four other defendants who were represented by individual counsel, Negro lawyers they were but they were not, as Your Honor observes, members of — of Lord Day & Lord.

Earl Warren:

But were they — were they introduced in the same manner as to the —

Roland Nachman, Jr.:

Yes.

Earl Warren:

— other Mr. — Mr. —

Roland Nachman, Jr.:

If I may read to the Court, gentlemen, this is from 570 and any of you can’t — to any of these members of the firm, Lord Day & Lord of New York, Allen Foster, Sherman Bowen, James S. Hemingway, Herbert Brownell, Louis M. Loeb, Thomas F. Daley, Terry J. (Inaudible) and so on.

Down the line, the lawyers for the other defendants are Fred Gray of Montgomery, Solomon Seay and V. Z. Crawford of Mobile.

On the question —

Earl Warren:

Is that — that’s the only reference he makes to the — to the lawyers.

Roland Nachman, Jr.:

I — I assume that that — that’s what he had in mind.

I — I believe that that is the —

Parts that are —

Earl Warren:

Are there any — are there any instances in the record where he does make a distinction between the Negro and the white lawyers?

Roland Nachman, Jr.:

In the — the preceding paragraph as I pointed out to the Court, there are — some of the lawyers are called mister.

But in the next paragraph as I say, when he read all of the names of the def — of — of the members of Lord Day & Lord, the use of the word mister does not appear in any —

Earl Warren:

How does he make a distinction in the paragraph before that you just mentioned?

Roland Nachman, Jr.:

Now, the lawyers in this case are the firm of Steiner, Crum & Baker.

Mr. Nachman, Mr. Sam Rice Baker, Mr. Steiner and Calvin Whitesell, who was also a white lawyer associated with us in the case, not referred to as mister.

The lawyers for the defendant, New York Times are Mr. Roderick Beddow, Mr. Embry, Mr. Thomas Daley, of New York, Mr. Diana.

And then I said, “Your Honor, here is a list of the members of firm of Lord Day & Lord of New York” and then he read — he stated what I have just read to the Court leaving — reading all of the —

I don’t think —

Roland Nachman, Jr.:

— their names —

(Inaudible)

Roland Nachman, Jr.:

Well, —

Earl Warren:

Where does he read — where do — when did they introduce the — the Negro lawyers?

Roland Nachman, Jr.:

Right after the — the list of the — the members of the —

Earl Warren:

Of Lord Day & Lord.

Roland Nachman, Jr.:

— firm Lord Day & Lord.

He then says, “The lawyers for the other defendants are Fred Gray of Montgomery, Solomon Seay and V Z. Crawford of Mobile.”

And I assume that this is what counsel had reference to in oral argument.

As I say, the point is not made at all in their brief.

If I may go then to the question of whether or not the individual defendants as — I will refer to in the petitioners here who were jointly sued in this libel suit —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Not at all sir, I — I welcome —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

— the question —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Your Honor —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Your Honor, that — that is, if I may say so respectfully sir, a partially correct reading of the record —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

For this reason sir — that is one of the reasons.

The motion for a new trial lapsed.

Another reason was that the Court, the trial court and the Supreme Court of Alabama subsequently held that under Alabama practice, long established, the only matters it can be — considered by a trial court on a motion for a new trial on matters that are contained within the record, unless the ground for the motion for a new trial is newly discovered evidence.

Roland Nachman, Jr.:

If newly discovered evidence is one of the grounds for motion for a new trial, then the party moving may seek to introduce evidence in support of its motion.

But if that is not the ground and this of course was not the ground, then the Court may not consider on the motion for a new trial matters which were not part of the trial record.

Now, this — this was — this point was reached for the New York Times because it kept its motion alive so to speak.

The point was never reached for the individual defendants because they allowed — allowed their motion to lapse.

And this is why I say sir that — that your — your observation was partially correct even if they had kept their motion alive — their motions alive, they still would not have been able to introduce any evidence outside the record which did not deal with — with newly discovered evidence.

On the question of lapse while I’m on it, we think the cases that we’ve cited Your Honors are crystal clear.

And I state what has long been the law of Alabama, they’re cited in Footnote 4 on page 5 of our brief, “That it is incumbent on a — on a party moving for a new trial either to submit for consideration by the Court within 30 days or to get a continuance for resetting within a 30-day period.”

If this is not done, the cases as I say are crystal clear and of long standing, the motion is as the Alabama Supreme Court calls it, “discontinued”.

And this is what happened to their motions.

These — these defendants, the Times on the one hand and the individual defendants on the other tried their cases completely — separately throughout.

They were represented by a different counsel, as a matter of fact, there were frequent objections in the record by Times’ counsel to questions that the individual petitioner’s counsel asked and all that sort of thing.

And if there was to be any — any joint protection so to speak, it seems to me that — that the Times possibly should’ve taken it.

But certainly, there is no requirement that where there are several defendants, that if one does one thing, it’s presumed that he does it for all of the rest of the defendants in the case.

As a matter of fact, one of the principle contentions as the Court has obviously recognized, one of the principal contentions in the case on the part of the individual defendants was that the Times had published their names on this ad without any authority.

And there was quite a difference of — of — of a position at the trial throughout on this matter.

Earl Warren:

Is there any case in Alabama precisely in point on this question, whether multiple — multiple defendants and — and they were all set for hearing on the motion for a new trial on a particular day and one counsel obtained the continuance and all of them were put over?

Roland Nachman, Jr.:

Your Honor, this — this was not exactly the fact in — in — in this case.

They had not been set for hearing or — on — on a particular day.

The time — the motions were filed and then they were continued.

The Times I believe continued its motion to for — I think three times —

Earl Warren:

Yes.

Roland Nachman, Jr.:

— from — they — they were heard in March and — and the trial concluded in — in November.

There must’ve been at least that — that many times.

We submit Your Honor that the case as we’ve cited, deal with any defendant and any motion —

Earl Warren:

But — but here —

Roland Nachman, Jr.:

— for a new trial —

Earl Warren:

Here, you have — do you have a case precisely in point here —

Roland Nachman, Jr.:

What?

Earl Warren:

— with multiple defendants where — where the action taken by them were not taken by them as the same as here.

Roland Nachman, Jr.:

The cases that we’ve cited do not as I recall, deal with multiple defendants but there is no difference made in — in Alabama practice where — whether there’s one or — or several defendants.

Roland Nachman, Jr.:

In other words, it is incumbent on the movement to present his motion for hearing within 30 days and if he doesn’t, he’s got to get a continued for setting within a 30 day period otherwise, it’s discontinued and we’ve cited cases that — that go back a considerable number of years in Alabama.

It’s — it’s a — a well established rule of Alabama practice.

We — we will certainly if — if the Court would like or — or attempt to give the Court a — of a case where there are joint defendants but we do not think it makes any difference, Your Honor.

In — in other words, it’s — it’s what’s incumbent on the movement in connection with his motion for new trial.

Earl Warren:

But when the judge continued these motions from time to time, did he continue the — the ones for these defendants as he did the one for the New York Times or did he then and there say — say that these defendants are out because they have not appeared?

Roland Nachman, Jr.:

No, sir.

As a matter of fact, these defendants did get one continuance separately.

They didn’t depend on the New York Times’ continuance but the first time the motion for a new trial was — was — when the motions for new trial were — were continued, the Times got its motion for new trial continued and these petitioners got their motions continued.

That happened once and then the next time, the Times got its motion continued and the individual petitioners did not.

Earl Warren:

Did the — did the judge continue the motions for the individuals?

Roland Nachman, Jr.:

Yes sir.

Earl Warren:

Why didn’t —

Roland Nachman, Jr.:

Once.

Earl Warren:

Why didn’t he, if they had lapsed that they hadn’t — hadn’t appeared, why didn’t he then say that they were — they had lapsed?

Roland Nachman, Jr.:

They had not lapsed the first time Your Honor —

Earl Warren:

No, I’m talking about the second time.

Roland Nachman, Jr.:

The — the — the second time there was — there was no — when — when the matter came on for hearing, the trial judge announced that the individual petitioner’s motions had lapsed and for — I — I was going say proceeded to hear the Times’ motion.

Actually, I think the Times’ motion was heard and then the counsel for the individual petitioners sought to bring theirs to the attention of the Court and the Court announced that — that theirs was discontinued or was dead to use the — the — the colloquial list.

But there was one continuance by the individual petitioners, quite separate from the New York Times and certainly indicates again that that they were handling their case on a separate basis and were not riding the — the Times’ coattails.

Tom C. Clark:

(Inaudible)

Roland Nachman, Jr.:

I beg your pardon sir?

Tom C. Clark:

The order (Inaudible) the Times — at the time didn’t mention the Times specifically or just the view (Inaudible)

Roland Nachman, Jr.:

It was endorsed on their motion Your Honor by the trial court.

He just — the — the record show, he just wrote on the — the last page of the — of the motion and separate motions were filed and he wrote on that, continued to such and such a date.

Tom C. Clark:

(Inaudible)

Roland Nachman, Jr.:

Yes sir, that’s correct.

There was —

Tom C. Clark:

(Inaudible)

Roland Nachman, Jr.:

It’s — it’s by statute and by — or — or judicial decision, we’ve cited the statute and the decisions on — as I say on — in Footnote 4 on page 5 of our brief.

The — the statute is Title 13, Section 119 and we’ve cited three Alabama cases and many more.

Hugo L. Black:

It was decisive in point that that —

Roland Nachman, Jr.:

Yes sir, the —

Hugo L. Black:

— the continuances — that they must be kept alive?

Roland Nachman, Jr.:

This — the statute requires that they be filed within 30 days.

Hugo L. Black:

(Inaudible)

Roland Nachman, Jr.:

Then the decisions require that if they are not submitted within the 30-day period, they must be continued for setting within a subsequent period.

Hugo L. Black:

(Inaudible) to that effect.

Roland Nachman, Jr.:

No sir, this is (Inaudible) —

Hugo L. Black:

That’s a discretionary matter, is it not?

Roland Nachman, Jr.:

No sir, it’s not discretionary.

Hugo L. Black:

It’s not?

Roland Nachman, Jr.:

It —

Hugo L. Black:

The judge can’t waived them?

Roland Nachman, Jr.:

The — the Alabama Supreme Court has held that this cannot be waived.

It is not a matter of discretion and matters have come before the Alabama Supreme Court where a counsel have even attempted to agree that the — that the case will not be discontinued and the Supreme Court of Alabama has held that this is not a matter for agreement of counsel.

If there has been no continuance — no continuance, the matter is discontinued and dead as a matter of — of law and — and cannot be revived by agreement of counsel.

Hugo L. Black:

In all cases?

Did they —

Roland Nachman, Jr.:

And —

Hugo L. Black:

— tell that in all cases?

Roland Nachman, Jr.:

In cases dealing with — with the question of continuance of motions for new trial, yes sir.

Hugo L. Black:

(Inaudible)

Roland Nachman, Jr.:

Yes, sir.

It’s — its — its — its entirely jurisdictional.

On the — on the question of — of the identification of or connection, if I — if — if there are no further questions on — on this — this point of the — these individual defendants with this ad because I certainly will not burden this Court with another discussion of — of the libelous nature of the ad and the falsity and the malice and all of the matters that — what were discussed yesterday.

John M. Harlan:

(Inaudible)

Roland Nachman, Jr.:

Yes, sir.

I — I would think so —

John M. Harlan:

(Inaudible)

Roland Nachman, Jr.:

No sir, I — I don’t think they do and — and the underlying constitutional questions on the — the nature of the ad and —

John M. Harlan:

(Inaudible)

Roland Nachman, Jr.:

Yes sir.

I — I — I assume that they are.

And — and these of course were joint tort pieces but were sued for libel.

The theory for suing the individual petitioners was their names were on the ad as people do warmly endorse the material which preceded it.

And I must confess that I am a little confused by what seems to me to be the dichotomy in the contentions, the counsel for petition is made.

On the one hand they say, “We had nothing to do with this ad, we knew nothing about it, we didn’t do it.”

On the other hand, they say, “This judgment punishes us for expressing ourselves in this ad.”

Now, it can’t work both ways.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

We submit that the — that the second alternative is the correct one.

That this was their publication —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

No sir.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Not at all sir —

Arthur J. Goldberg:

Well then what (Inaudible)

Roland Nachman, Jr.:

They could’ve sent a letter to the New York Times to be published in the letters to the ad at the column of the New York Times saying, “This ad appeared in our columns, we had nothing to do with it, please publish this letter in the New York Times”, and it would have had exactly the same circulation that this ad had and it would’ve cost the — the price of a — of a postage stamp.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Then, I think we would have quite a different situation.

These people would’ve done all that they could’ve done within reasonable means.

And I do want to address myself since the question has —

Arthur J. Goldberg:

(Inaudible) statutory requirement.

Roland Nachman, Jr.:

We — we think it would have.

We think an attempt to — to publish a statement and to give it circulation in — in that fashion, would certainly have met the — the requirements of the statute.

But obviously, this is a hypothetical situation because they didn’t attempt to do it.

But we say —

Earl Warren:

Have the courts so construe —

Roland Nachman, Jr.:

— it could’ve been —

Earl Warren:

— have the court so construed your statute?

Roland Nachman, Jr.:

I don’t —

Earl Warren:

(Voice Overlap) —

Roland Nachman, Jr.:

I don’t of no — I — I don’t know of any case right on point on this Your Honor.

That is whether a letter to the editor would have satisfied the statute giving retraction the same circulation of this ad.

Arthur J. Goldberg:

The mere construction (Inaudible)

Roland Nachman, Jr.:

No, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

But —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Your Honor, there — there was no occasion for such an instruction because they didn’t do anything.

If they had done this and it made the contention that by doing it, they complied with the statute, we would’ve had one situation but these defendants testified without exception that they did nothing.

And so we have — we don’t have a situation where they attempted to comply and — and to give a retraction of — of the same publicity that the ad itself had had and — and we think that by that very simple expedient, these petitioners could have given publicity to the fact that they retracted.

Hugo L. Black:

Mr. Nachman, I’m very much interested in the basic question argued by (Inaudible) as to evidence in connection with — whether they were responsible for this.

Roland Nachman, Jr.:

Alright sir.

Hugo L. Black:

It seems to me it divides the (Inaudible) into two parts.

One, was there evidence upon which the jury could find that they actually did this?

Second, even if there was no such evidence, was there — it cannot be said that they acquiesced it and — so as to make them liable?

I’d like to just —

Roland Nachman, Jr.:

And I will retract my —

Hugo L. Black:

— if it’s alright with you to mention that and say, “First, was there and — and is it your position that there was a — from which the jury could find, they were responsible for it initially and if so, what is that evidence (Inaudible)

Roland Nachman, Jr.:

Alright, sir.

I was just going to address myself to that.

First of all, their names were on the ad.

Secondly, a demand for retraction was sent to them.

The demand for retraction said, to — to paraphrase it, “You published a defamatory ad about us, about me”, the — the plaintiff.

Now, under the rules of evidence, Alabama has them and it’s a common rule, if an inculpatory statement or charge is made to a person, in circumstances which would ordinarily call for a reply and the person doesn’t reply, he doesn’t deny the charge contained.

That failure to deny in those circumstances is considered evidence of the fact that the person did what he was charged with doing.

In this case, publishing this defamatory statement.

Now, this is different from the question of retraction.

Hugo L. Black:

Now those — there are only two.

Roland Nachman, Jr.:

No, sir.

No.

There are others, I — I was just — in addition to that, there was a letter from A. Philip Randolph setout on page 587 of the record.

Hugo L. Black:

Is he one of the defendants?

Roland Nachman, Jr.:

No, sir.

He was either the Chairman or some official of this Committee and this letter was written to the Times saying, “The people on the list attached to this letter have authorized the use of their names and furtherance of the work of this Committee.”

Hugo L. Black:

(Inaudible)

Roland Nachman, Jr.:

Well, it — it may have been — the letter came in to evidence as part of the answers to interrogatory, there was no objection to it and so —

Hugo L. Black:

But even so, you rely on that as substantive proof, they authorized their (Inaudible)

Roland Nachman, Jr.:

The — the letter was attached Your Honor as a — as an — an exhibit — as an answer to one of the interrogatories which were propounded to the New York Times.

Interrogatory was, “What authority did you have for using the names of these people on the ad?”

Hugo L. Black:

(Inaudible)

Roland Nachman, Jr.:

And the answer was — yes, sir but if the — if these individual defendants did not object as they didn’t object, the answer went into evidence and there was no request to restrict it to anybody.

There was no objection to it.

It went into evidence.

It went before the jury and there was no objection to — to that letter.

Now, there was a conflict of testimony as to whether or not there were two lists of names attached to the — the Randolph letter.

The — the petitioners maintained and their witness Murray testified that there was one list and then later a subsequent list of names was added to that list.

And that their names were on the subsequent list and were not included in the original Randolph authorization.

On the other hand, Mr. Redding who testified for the New York Times and the Times makes this observation on page 16 of its brief.

Mr. Redding who was in charge of the Advertising Acceptability Department said, he did not recall any two lists.

That far as he knew, there was no difference between the lists, a conflict of testimony which went to the jury on that point.

So we say that — that —

Hugo L. Black:

Is that all?

Roland Nachman, Jr.:

Then there was the ratification.

Hugo L. Black:

What I mean, before you get to the so-called ratification, is that all?

Roland Nachman, Jr.:

Yes sir, though — that — that is the — that that —

Hugo L. Black:

Did they examine — take depositions of Randolph or summoned as a witness?

Roland Nachman, Jr.:

No sir.

And — and we would’ve had difficulty taking his deposition because of the state boundaries.

Roland Nachman, Jr.:

I mean, he — he was — he was not a —

Hugo L. Black:

During the trial?

Roland Nachman, Jr.:

No, sir.

Nor was he produced by the defendants

Hugo L. Black:

But you don’t —

Roland Nachman, Jr.:

— in this case.

Hugo L. Black:

— come to Alabama rule that wouldn’t make a hearsay statement (Inaudible)

Roland Nachman, Jr.:

Yes sir.

If —

Hugo L. Black:

Alright.

Roland Nachman, Jr.:

If a hearsay — if any kind of testimony, hearsay or otherwise is — is —

Hugo L. Black:

But this, you have no testimony from him.

Roland Nachman, Jr.:

Oh, oh excuse me sir.

It — the — the letter was admissible as answers to the interrogatory of the Times which was introduced in evidence without objection.

And it went to the jury —

Hugo L. Black:

Was it then refused as evidence to prove that these people had done what Randolph said (Inaudible)?

Roland Nachman, Jr.:

Yes sir.

And there was no objection to it by these —

Hugo L. Black:

Did you state that was the purpose for which he was interviewed?

Roland Nachman, Jr.:

Yes sir, the — the —

Hugo L. Black:

At the time it was interviewed?

Roland Nachman, Jr.:

The question was read.

The question was read to the jury.

Hugo L. Black:

It was done.

Roland Nachman, Jr.:

What was the authorization for the use of the names on the ad, clearly indicating that this was a purpose for which the answer would then be —

Hugo L. Black:

New York Times in that case gave you a statement by a third person who was not a party to the lawsuit, and not a witness.

Roland Nachman, Jr.:

That was the same case Your Honor —

Hugo L. Black:

Well, but they were different defendants.

Roland Nachman, Jr.:

Yes, sir.

Hugo L. Black:

And it’s — some evidence could be admissible against some and not against others.

Roland Nachman, Jr.:

If there was a proper request Your Honor to restrict, but if —

Hugo L. Black:

You’ve got to decide or restrict hearsay evidence when —

Roland Nachman, Jr.:

Yes sir.

If — if — if — if somebody introduces hearsay evidence and there’s no objection —

Hugo L. Black:

If that person (Inaudible) against the New York Times, they’re the ones (Inaudible) —

Roland Nachman, Jr.:

No sir, we didn’t.

We — we did not restrict the introduction of it.

Hugo L. Black:

No.

If you state that it was offered against the other people who had not given you the answer.

Roland Nachman, Jr.:

Not specific.

Really, the matter didn’t come up that way.

We simply introduced, we — the interrogatory —

Hugo L. Black:

But that’s the third prong, that’s the third prong that you’re proving against them.

If that’s eliminated, what do you have left?

Roland Nachman, Jr.:

We have the — the — the fact that their names were on the ad and we have the fact that they —

Hugo L. Black:

(Voice Overlap)

Roland Nachman, Jr.:

— failed to reply to the — the inculpatory statement which was made in the demand for retraction.

Hugo L. Black:

Now, assume —

Roland Nachman, Jr.:

And that is of —

Hugo L. Black:

(Inaudible) the fact that a man’s name appeared on an ad was enough to hold him libel for half a million dollars.

Roland Nachman, Jr.:

We — we don’t say that that’s all we have sir.

Hugo L. Black:

Now, you wouldn’t — you said they wouldn’t say that.

Roland Nachman, Jr.:

And — no, sir.

But we say that in addition to that, we have the rule of evidence which is not peculiar to Alabama.

That a failure to reply to an inculpatory statement made in circumstances which would normally call for reply can be considered as evidence of the fact that the person did what the charge said he did.

Hugo L. Black:

On the other side, did they deny they’ve given authority?

Roland Nachman, Jr.:

Yes sir.

They certainly —

Hugo L. Black:

(Inaudible)

Roland Nachman, Jr.:

Yes sir, they did.

Hugo L. Black:

All of them?

Roland Nachman, Jr.:

All of them.

Hugo L. Black:

But if you have these items that you’ve mentioned, besides from your ratification, have these items that you’ve mentioned, which includes the letter from Randolph?

Roland Nachman, Jr.:

Yes.

That — there was a — we — we concede a square conflict of — of — of the testimony on it, each one of the petitioners testified that he had no connection with the ad at all.

Didn’t know anything about it and hadn’t authorized the use of his name.

As a matter of fact, they also put on this man, Murray, who testified that their names were brought on as an — as an afterthought to lend the — a local people to the — to the ad.

But we say that there is no constitutional requirement that testimony be believed, the other testimony not be believed.

And if these people be heard to say that their pretrial conduct which was at war with the position that they took at the trial was so little worthy of credence that a jury as a matter of constitutional law couldn’t believe it.

It would’ve been an easy matter for them to have said in response to this demand, we had nothing to do with this ad.

We didn’t know anything about it.

Mr. Commissioner —

Arthur J. Goldberg:

(Inaudible) that’s your argument.

Roland Nachman, Jr.:

No sir.

We separate ratification from this argument that — that there are two separate arguments.

The one is that a failure to deny in these circumstances is positive evidence and the fact that it was done, not that it was ratified later but that it was actually done.

We say that if somebody sends a letter saying, “You published a defamatory statement about me”, and — and the recipient hadn’t published it.

Didn’t know anything about it —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

He — his — his — he should’ve answered —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Yes sir.

We say he should’ve answered saying, I had nothing to do with it.

Earl Warren:

Would that have satisfied your statute if he had — if he had just written a letter to you and said, “I deny that I had anything to do with that advertisement.”

Roland Nachman, Jr.:

I’m not talking about the retraction statute now, Mr. Chief Justice.

I’m talking about the — that the — the rule of evidence that — that a failure to deny a charge in certain circumstances can be evidence of the — of — or — or to the effect that the charge is correct.

Now, as far as retraction is concerned, that requires an actual retraction of — of the material that was contained in the ad.

What I say is to avoid the evidentiary effect of a failure to deny publication, they didn’t have to retract.

All they had to do is say, we didn’t publish it.

We had nothing to do with it.

Arthur J. Goldberg:

(Inaudible) as I recall that (Inaudible)

Roland Nachman, Jr.:

No, sir.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Not where there is —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Not where there is a demand under Alabama law.

Where a demand is made, then there is a requirement that it be answered and of course, that there need be no relationship.

For example, if one person runs into another with an automobile and A says to B, “You were speeding and hit me”, and B doesn’t deny it, that can be evidence of the fact that —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

— that B was speeding.

Arthur J. Goldberg:

Is that your argument (Inaudible)

Roland Nachman, Jr.:

No sir.

But what we say is that where there is a — a — a — a charge that you published something about me which was defamatory and — and so on that if there was no publication, there is a — an obligation and not an obligation, but if it’s not answered, it can be considered as evidence to the fact —

(Inaudible)

Roland Nachman, Jr.:

— that there was a publication.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

I — I don’t know sir, we cite a Massachusetts case in — in our — our brief, Gould against Kramer which is on all of course with a —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Well, Your Honor, we submit that it is and has been.

We’ve cited in our brief on page 21 a Massachusetts case of — of some age which is — is right on point.

And the — and the Alabama cases of the — the Alabama case — Supreme Court in this case has followed the same thing.

The Fifth Circuit in the Parks case that the matter that has been brought here on — on certiorari and which has not yet been ruled on reach the same conclusion.

Arthur J. Goldberg:

I would suggest so far as I understand the case (Inaudible)

Roland Nachman, Jr.:

Your Honor, we submit that — that — that there — there are —

Arthur J. Goldberg:

(Voice Overlap)

Roland Nachman, Jr.:

— we respectfully and in addition to that on the question of ratification which we also contend provided a basis for the judgment against these individual defendants.

They’re quite the contrary to the argument that was made by counsel for petitioners.

There is no requirement in Alabama and there is no requirement generally that there be a preexisting agency relationship before there can be ratification.

Mr. Seavey (ph) in the restatement of agency says, “There need to be no preexisting agency relationship.”

We’ve cited that in our brief and contrary to what counsel argued, Alabama requires no preexisting agency relationship to Birmingham News Company case which is cited in our brief, makes it perfectly clear but we’ve cited in Footnote 18 on page 23 of our brief, makes it perfectly clear that there need to be preexisting agency relationship in order for there to be ratification.

Roland Nachman, Jr.:

And I believe, the question was asked — answered in — in response to Mr. Justice Harlan’s question about whether there were some equal protection matter involved because in this case, there was no preexisting agency relationship and ratification was found.

Whereas in other Alabama cases, the Court had held that there had to be a preexisting agency relationship, this is simply not the case Your Honor.

And the Birmingham News case which we cited on page 23 in Footnote 18 so holds and was so interpreted not only by the Supreme Court of Alabama but by the Court of Appeals for the Fifth Circuit in Parks against the New York Times — New York Times against Parks as it is here, which was — the same case were cited in the Court of Appeal’s decision.

So we say that, in addition to these items of evidence, we also have ratification.

And we say —

Earl Warren:

Mr. — Mr. Nachman, it is not unknown to at least one member of this Court that he receives letters from various parts of the country claiming that he has made statements that are libelous on certain groups or certain individuals and demanding an apology for it.

If that member of the Court has made no such statements, is he under obligations to — to apologize or to deny that he made any such statements at the peril of being sued for libel and having that offered as sufficient proof to get a $500,000 verdict against him?

Roland Nachman, Jr.:

Your Honor, of course — obviously, I’m not familiar with — with the content of the letter but this letter sir —

Earl Warren:

Well, they were —

Roland Nachman, Jr.:

— specified —

Earl Warren:

They’re far worse that this one.

Roland Nachman, Jr.:

But — but — this letter Mr. Chief Justice, specified a particular publication by date, they quoted from a part of it.

It — and — and in that kind of a circumstance, as distinguished from a general kind of a comment, “you libel me”, so to speak, without any real specification of what was done, I think there would be a distinction sir.

But in this case, the demand for retraction actually specified it.

It said that you published this ad in the New York Times on March 29, 1960, saying specifically this and it quoted two paragraphs from it, the two paragraphs which were — were discussed at some length yesterday and — and — and referred to the ad as a whole.

I believe them that there should be a distinction between a generalized kind of a statement in the letter and — and a statement in the letter referring to a specific publication.

Earl Warren:

Well, I’m willing to make it just as specific as you want it to be made, where in fact, the — the person I’ve been talking about has made no such statement.

Is he obligated to deny that he said it in order to prevent being sued and — and recovered against for libel.

Roland Nachman, Jr.:

But we — we would contend Your Honor that if somebody is charged with making a specific publication and if it becomes important at a lawsuit later, whether or not he has made this publication, whether he had anything to do with it.

That his failure to deny in response to such to a demand can be considered as evidence of the fact that he did actually publish the material that he was charged with publishing.

And we don’t say there’s an obligation sir, but we say that — that it is within the rule of evidence that if a person is charged with doing something —

Earl Warren:

Charged, now when you say charged, are you — you mean accused?

Roland Nachman, Jr.:

Yes sir.

In — in —

Earl Warren:

Accused by an individual.

Roland Nachman, Jr.:

Yes sir.

Earl Warren:

Not — not charged in — in court.

Roland Nachman, Jr.:

(Inaudible) — oh no sir, I didn’t charged in court —

Earl Warren:

Yes.

Roland Nachman, Jr.:

— or in any criminal sense —

Earl Warren:

Yes.

Roland Nachman, Jr.:

— but — but —

Earl Warren:

Yes.

Roland Nachman, Jr.:

— receives a lot of such as these or demand for retraction saying, you —

Earl Warren:

Yes.

Roland Nachman, Jr.:

— you published this about me in a — in an ad in the New York Times on such and such a date saying doesn’t so, and quoting from part of the — of — of the publication, we demand that you retract it.

And if the person then takes the position at the trial that he had nothing to do with the publication at all.

He didn’t — he didn’t know anything about it, had — had no connection with it.

We say that the fact that he did not deny that, that he did not reply and did not say, “I had nothing to do with this publication.

My name was used without authorization.

I knew nothing about it”, and so on that if he doesn’t disavow the fact that he published it, not the content of the ad but the fact that he published it, then we say that that comes within this rule of evidence, yes.

Byron R. White:

Could you say it’s a — it’s enough evidence on the — the fact the publication to get to the jury?

Roland Nachman, Jr.:

Yes sir, we have this scintilla rule.

Byron R. White:

There’s no other evidence, this is enough evidence?

Roland Nachman, Jr.:

Alabama Your Honor has the scintilla rule.

I don’t know whether we’re the only state in the union which has it (Inaudible)

Byron R. White:

(Voice Overlap) this is enough to survive a motion for a directed verdict or motion for dismissal poses it — poses the plaintiff’s case?

Roland Nachman, Jr.:

It — it is enough to get to the jury.

Now, Alabama —

Byron R. White:

(Inaudible) a jury verdict.

And (Inaudible)

Roland Nachman, Jr.:

Yes sir.

Byron R. White:

— jury verdict.

Roland Nachman, Jr.:

Yes sir.

That — that — the — the parties cannot be heard to say that his pretrial conduct which is inconsistent with the position that he later takes at the trial, namely that he had nothing to do with the ad.

That — that — that — that his pretrial conduct is so little worthy of credence that the jury —

Byron R. White:

(Inaudible)

Roland Nachman, Jr.:

— can’t even consider it.

Byron R. White:

I suppose then it must be true that if the defendant does put on substantial evidence that he had nothing to do with it but nevertheless, there is this fact that he failed to deny at a certain point in light.

That also is enough to sustain a jury verdict.

Roland Nachman, Jr.:

Yes sir.

But then we get into a question of whether a jury verdict is against the great weight of the evidence, not whether there’s enough to get to the jury.

Byron R. White:

But you had the scintilla rule?

Roland Nachman, Jr.:

We do sir.

Byron R. White:

On getting to the jury?

Roland Nachman, Jr.:

On getting to the jury.

Byron R. White:

Yes, but —

Roland Nachman, Jr.:

But Alabama says that even though you can get to the jury, the Court can still set aside a verdict —

Byron R. White:

(Voice Overlap)

Roland Nachman, Jr.:

— being against the great weight of the evidence —

Byron R. White:

(Voice Overlap) common law rule for —

Roland Nachman, Jr.:

That — that’s right.

Byron R. White:

— reviewing a jury — jury verdict then?

Roland Nachman, Jr.:

That — that’s right sir.

Byron R. White:

If it’s against the evidence, you’d set it aside?

Roland Nachman, Jr.:

That’s right sir, but in —

Byron R. White:

And in — in your Supreme Court too.

Roland Nachman, Jr.:

Yes.

Yes sir.

But in this case Your Honor, under Alabama law, the — the — the — the Court has made a distinction between what you’ve got to have to get to a jury and what a trial court on motion for new trial, can do to —

William J. Brennan, Jr.:

(Inaudible)

Roland Nachman, Jr.:

That — that’s one against the great weight of the evidence is usually the one.

But in this case — in this case we remind the Court and we’ve cited that the cases in our brief.

Where there is no motion for new trial, the Court cannot consider the weight of the evidence and as has been pointed at some length, these motions for a new trial lapsed and the question of excessiveness and the question of the weight of the evidence was — is — is therefore, gone.

John M. Harlan:

(Inaudible) to go into a criminal libel prosecution under your Alabama law, what do you have to establish to establish criminal libel?

Roland Nachman, Jr.:

Well you have to —

John M. Harlan:

Supposing you’ve prosecuted the Times for criminal libel in this case, what would you have had to establish?

Roland Nachman, Jr.:

We would have had to establish that this was a libelous publication and —

John M. Harlan:

Willful?

Roland Nachman, Jr.:

— and that it was false and defamatory.

John M. Harlan:

Malice?

Roland Nachman, Jr.:

And — well, we would’ve had a presumption of malice or — or — which could be of course rebutted by evidence from the defendant.

John M. Harlan:

Presumption of malice in a criminal case?

Roland Nachman, Jr.:

From falsity, yes sir.

But a rebuttable presumption and of course the proof, the burden of proof would’ve been as in criminal cases beyond a reasonable doubt other than more probable than that of — by a fair preponderance of the evidence as — as is the test in a civil case.

John M. Harlan:

What was the penalty of that?

Roland Nachman, Jr.:

I believe its $500, Your Honor.

Earl Warren:

Irrespective of the character of the libel?

Roland Nachman, Jr.:

I — I think that’s correct, I don’t believe that — that there are gradations of — of penalty under the Alabama criminal libel statute.

Earl Warren:

(Inaudible) is there imprisonment connected with it or just a fine of $500?

Roland Nachman, Jr.:

I believe its fine and possibly up to — is it six months?

It’s a — it’s a misdemeanor I think under — under Alabama Criminal Law.

John M. Harlan:

(Inaudible)

Roland Nachman, Jr.:

No sir.

There would be no —

John M. Harlan:

Cooperation?

Roland Nachman, Jr.:

That — that’s right.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

It does not sir.

It certainly does not.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

And on that question I would also like to correct what I’m sure was an inadvertent error by General Rogers on the question of when there was an attachment — whether an attachment had been made after there was an — an attempt to review in this Court.

That — that was General Rogers as I understood him said that that had been the case but an attempt has been made after review had been — review proceedings had been instituted here.

This incorrect not only had there been no review proceedings instituted here but there hadn’t been any review proceedings instituted in Alabama.

And moreover, there is absolutely nothing in the record of this case about those attachments.

The only thing that — that appears in — in these volumes are some newspaper stories which the Times attempted to introduce in support of its motion for a new trial which were excluded by the trial court under the — the rule that I mentioned earlier that only matters going to newly discovered evidence can be introduced to amplify a record.

(Inaudible)

Roland Nachman, Jr.:

Yes sir, but they were — before there was even an appeal to the Alabama Supreme Court, they came after the motions for a new trial lapsed and —

Tom C. Clark:

(Inaudible) of execution on the judgment, (Inaudible)

Roland Nachman, Jr.:

Yes sir.

Roland Nachman, Jr.:

There were executions in the judgment.

Tom C. Clark:

There wasn’t any supersedeas bonds filed?

Roland Nachman, Jr.:

There was no supersedeas bond at —

Tom C. Clark:

(Inaudible) go ahead and get it in execution.

Roland Nachman, Jr.:

That’s right sir.

And if the cases goes the other way on — on — on appeal, they get their money back with 6% interest under — under Alabama law.

Hugo L. Black:

You mean, what has been paid to other people (Inaudible)

Roland Nachman, Jr.:

No sir.

It’s been paid in to Court.

Hugo L. Black:

(Inaudible) in Court.

Roland Nachman, Jr.:

It’s in the Court, yes.

Byron R. White:

How much this amounted to?

Roland Nachman, Jr.:

I’m guessing Your Honor, I believe it’s around $6000 but I — I — it — it — it’s somewhere in that — in that neighborhood.

I — I — I don’t know the — remember the precise amount but I think that’s reasonably accurate.

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

Your Honor, we — we think it’s a — it’s a fairly serious matter when — when a public official says to a person, “You published in — the first one in Times” —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

We — we — we think —

Arthur J. Goldberg:

(Inaudible)

Roland Nachman, Jr.:

We don’t think that either on this issue or on ratification Your Honor, a preexisting relationship is required.

We think that Alabama stands for that and we think that Mr. Seay, his restatement states the law generally on that and that a preexisting relationship is not required.

On the other matters that — the — the question of the courtroom in the atmosphere at the trial and other matters that — that — that are raised even including the question of whether the trial judge was properly elected.

These things we submit were complete afterthoughts had nothing to do with this — with — with — with the — the record in this case.

They are not — they were not — none of these matters were raised before the trial court even if these people had not let their motions for new trial lapsed.

We say they would not have been properly presented because these are things that should be presented at the time, not on motions for new trial later.

And not in this case, we think they are smoke screens for this case, we think the sole question that these people attempted to raise which deal with federal due process was the question of whether or not there was enough evidence to connect these people with the publication of this ad to get to a jury and that we submit is the sole federal question that was raised in this record.

Hugo L. Black:

Didn’t they challenge the constitutionality of the holding in libel for libel (Inaudible).

You mean that’s not in this case?

Roland Nachman, Jr.:

You mean the nature of the publication is —

Hugo L. Black:

Yes.

Roland Nachman, Jr.:

— libelous?

Yes sir.

I — as the —

Hugo L. Black:

(Inaudible) the First Amendment (Inaudible)

Roland Nachman, Jr.:

Excuse me sir.

I — I — I should have made —

Hugo L. Black:

Your main argument —

Roland Nachman, Jr.:

— that clear, in addition to the matters that were involved in the Times case.

I — I should have made that clear.

(Inaudible)

Roland Nachman, Jr.:

Yes sir, the —

(Inaudible)

Roland Nachman, Jr.:

That — that’s right sir.

But how the matters of — of the — of — of who was sitting where in a courtroom or how a trial judge was elected or what a trial judge said three months after a trial and those things could have been raised by the matters of — in the manner that — that — that the petitioner say they were raised as contrary to any known rule of practice.

You can’t raise things like that by demurrer or by motions for a directed verdict.

These — these are things that — that — that requires specific motions going to those specific matters and they simply aren’t in this case nor is there in this case what may be in another libel suit and we — we think that whether another libel suit is — is a — a — a valid one or a groundless one is not before the Court in this case.

This case should be heard and we are confident it will be heard on its own merits.

These were joint defendants Your Honors, under Alabama practice, a jury could not even if it had wanted to apportion, culpability or damage among several defendants.

We’ve cited in our brief the case of — of Bell against Riley Truck Lines where a jury as a matter of fact tried to apportion damages among joint tortfeasors and the Alabama Supreme Court says, “This cannot be done.

That is part of a general verdict by a joint tortfeasors who are sued jointly, the jury must bring back a joint verdict against those — whom it finds guilty or — that are liable in — in — in a civil case.”

John M. Harlan:

(Inaudible) the case in Alabama in criminal libel.

It can’t do it quickly while —

Roland Nachman, Jr.:

Your Honor we have —

John M. Harlan:

(Inaudible)

Roland Nachman, Jr.:

I — I — I don’t have offhand, I’ll be glad to supply a memorandum on that if — Mr. Justice if — if — if you would like.

I — I don’t have it at my fingertips the leading case on —

John M. Harlan:

(Inaudible)

Roland Nachman, Jr.:

— criminal libel but I —

Earl Warren:

You may.

Roland Nachman, Jr.:

— I will be glad to do that.

Roland Nachman, Jr.:

We submit that the nature of this ad, the culpability involved and all of the matters which we discussed yesterday require an affirmance of this case.

As a joint case, we do not think it is a separate case, we think it was tried as a joint case.

It was appealed as a joint case and we submit that as joint tortfeasors, there should be an affirmance as to all defendants here petitioners in this case.

Earl Warren:

What you told us a little while ago that it was not tried as a joint case.

That it was not a joint action and that therefore all of the counsel had to be present when they put over the motions for a new trial.

Roland Nachman, Jr.:

No sir.

I said that there were — what I meant to say sir was — was that there were separate theories of defense on the part of the — the — the different defendants, individual defendants on one — one side and the New York Times on the other.

The — the — the trust of the — the evidence of — of these individual defendants was really the — they had nothing to do with the publication of this ad.

It was tried as a joint case, yes sir.

But — but they — they had different attorneys and each was looking out for the interest of his own clients, that was what I meant to say.

We would like to — to — to leave with the Court in closing the observation which we made yesterday, ask the Court to bear in mind that here we have four individual defendants who reside in Alabama.

Two of them resided in Montgomery.

There was not one word of evidence from anyone of these defendants that any part of this ad was true.

And we ask the Court in weighing this case to bear in mind that not only did the Times put in — failed to put in any evidence of truth but did not one of these individual defendants did either.

And they, even more than the Times, were in a position to know what the true facts were.

We ask that both these cases be affirmed.

Thank you.

William P. Rogers:

Your Honor, I just have a —

Earl Warren:

General Rogers.

William P. Rogers:

— one or two brief comments.

I think counsel ended his remarks by saying that these petitioners reside in Alabama.

The fact is only one of them resides in (Inaudible).

I think that I would like to refer to the answers that Mr. Nachman gave to the questions by Mr. Justice Black because he left the impression that this letter from — from Mr. Randolph even though hearsay did state that these four petitioners had authorized this publication.

Now, the record is just the opposite from that.

In page 807, Mr. Murray testified that the names of these petitioners were not included in that list and Mr. Aronson at page 755 who was the other witness who would have known said that the names were not on that list so what Mr. Nachman said is 100% different from the truth.

The truth is that not only did they not authorize it but in Mr. Randolph’s letter, their names were not included at all.

Hugo L. Black:

I understood him to say there was a conflict that these two witnesses testified as you’ve said.I — I may have been wrong but if someone else has testified, that a Times’ man had testified about a second list, that should’ve been a part of it.

I thought he said —

William P. Rogers:

Well, yes he did —

Hugo L. Black:

(Inaudible)

William P. Rogers:

— Your Honor but there — there was — that the interesting thing about that is the other witness he talked about was a Mr. Redding who was not involved in the original transaction.

In other words, Mr. Murray took the advertisement in the Randolph letter to Mr. Aronson.

Mr. Murray said at this four — the names of these four petitioners was not on that list.

Mr. Aronson said the names of these four petitioners were not on that list.

Now, the other man that he referred to was a man named Mr. Redding who subsequently reviewed the advertisement for acceptability.

His testimony was that he didn’t know.

In other words, he didn’t say, “Yes, the names were on the list.”

He said, “I don’t know.

I don’t have any recollection.”

So there wasn’t any conflict of testimony on the —

Hugo L. Black:

Did he say something about a second list or — or —

William P. Rogers:

No, that’s what he was talking about.

What happened —

Hugo L. Black:

Where is that in the record?

William P. Rogers:

I don’t know.

I don’t know of —

Hugo L. Black:

His name is Redding?

William P. Rogers:

Yes, Your Honor.

I can give you the —

Hugo L. Black:

That’s alright.

William P. Rogers:

The page number is 771 and Mr. Redding said that he did not know.

So there is no conflict at all.

Now, the second thing that I thought was interesting in Mr. Nachman’s statement, he said, “Now, that he was not relying on the statute.”

In other words, he said that he didn’t expect these petitioners to comply with the statute but he said the failure to say anything after they received the letter in his view was an admission that they actually had authorized the advertisements.

Now, the fact of the matter is, they all denied that they had anything to do with it, not within the five days.

What if he — if he doesn’t rely in the statute as soon as they were served with the complaint, they said they did not authorize it then they — they all gave depositions and then new depositions.

They said they did not authorize it.

They didn’t even know anything about it.

So very quickly after they received the letters, they made it perfectly clear to the public and to Mr. Sullivan and Mr. Nachman that they had no connection at all with this advertisement.

So that the arguments he makes — well, interesting, really are — I think designed to deceive the Court.

William P. Rogers:

The fact of the matter is these petitioners are here today because they’re Negroes and because they’ve been leaders in the fight for civil rights.

That’s all there is to this case.

Now, he — when — when Justice Goldberg asked him about the cases in — in Alabama which he relied, it seemed to me he — he didn’t answer that one.

The fact of the matter is there are three cases, Burns against Campbell, which is 71 Alabama 271, Belcher Lumber against York, and there’s Fidelity & Casulty against Beeland.

Now, in every one of those cases, it’s made perfectly clear that the law is that in a tort case, mere silence does not make you guilty of a tort.

There is no case in Alabama that suggest that and Mr. Nachman didn’t really — he just — adopt the issue when you asked.

The fact of the matter is in that — in the — in the Beeland case, the Court said that a man cannot make evidence for himself by writing a letter containing the statement he wishes to prove and then claim failure to answer as omission.

That’s a settled law of Alabama.

He — he cited the Birmingham News case.

The Birmingham News case Your Honor is a case where the Birmingham News wanted to have a shopping guide published and it employed a person, gave him an office in the Birmingham News Company.

He went out and solicited ads.

He had the shopping guide printed.

The printing company sued the Birmingham News because they weren’t paid for the printing.

They had set the bills to the Birmingham News because they thought it was for the Birmingham News.

And the Birmingham News didn’t deny the fact that he was an agent.

He had an office in the building.

He was doing their work.

And the Court said in that case, because of the relationship with the party and because it certainly appeared that he was not an independent contractor that their failure to claim that he wasn’t after they received the bills made them liable for the work that they had done in behalf of the Birmingham News.

Now that’s not this case.

And when counsel states that case, I think he’s trying to mislead the Court.

In conclusion, I’d like merely to say this that this case has I think very broad significance because if — if it should be affirmed or — let’s see there are four other cases now pending where a request for damages amount to $2,500,000.

There are cases pending against CBS, damages amount to $1,300,000.

There are other cases against the New York Times for a request of damages of $1,800,000.

And if this case should stand in the cause the civil rights will be set back a great many years.

Earl Warren:

We’ll recess now.