New York Times Company v. Sullivan

PETITIONER:New York Times Company
RESPONDENT:Sullivan
LOCATION:New York Times Office

DOCKET NO.: 39
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 376 US 254 (1964)
ARGUED: Jan 06, 1964 / Jan 07, 1964
DECIDED: Mar 09, 1964

ADVOCATES:
Herbert Wechsler – For the Petitioner
M. Roland Nachman, Jr. – for the Respondent
Samuel R. Pierce, Jr. – for the Petitioner
William P. Rogers – for the Petitioner

Facts of the case

Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King’s efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.

Question

Did Alabama’s libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment’s freedom of speech and freedom of press protections?

Earl Warren:

Number 39, New York Times Company, Petitioner, versus L.B. Sullivan.

Mr. Wechsler.

Herbert Wechsler:

Mr. Chief Justice, may it please the Court.

This case is here together with Number 40 on writ of certiorari granted a year ago to the Supreme Court of Alabama.

It summons for review a judgment of that court which poses in our submission hazards to the freedom of the press of a dimension not confronted since the early days as the Republic.

(Inaudible)

Herbert Wechsler:

Thank you.

I was saying that the writ calls for review, a judgment of the Supreme Court of Alabama which in our submission poses hazards for these — freedom of the press, not confronted since the early days of the Republic.

The questions presented are, in general, first, how far the civil law of libel may be used by state officials to punish the publication of statements critical of their official conduct or of the conduct of the agencies of which they are in-charge.

And second, how far a state may force a newspaper which publishes a thousand miles away to defend libel actions instituted in its forum because its correspondents go there on occasion to cover news of national importance as — for a very small amount of advertising emanates from sources in the State and a very small circulation of the paper in this instance, 394 copies of the total daily circulation of 650,000 found its way into the State.

The problems arise in this context.

The action was instituted by the respondent, Mr. L.B. Sullivan, one of the three elected Commissioners of the City of Montgomery, Alabama.

It was brought against the Times and four codefendants who were then residents of Alabama, four clergymen, the Reverends Abernathy, Shuttlesworth, Seay and Lowery.

These are the petitioners in Number 40.

The complaint demands damages of $500,000 for libel allegedly contained in two paragraphs of a full page advertisement that was published in the Times on March 29th, 1960.

I should say that similar actions based on the same advertisement were instituted by the other two city Commissioners by a former Commissioner and by the then Governor of the State of Alabama, Governor Patterson.

They had dominance in these other suits, total $2 million.

But this was the first of the five cases brought to trial and it resulted in a verdict in a judgment against all defendants for the $500,000 claim.

Of the other cases, only the James case, the case by Mayor James has gone to trial, there was the same verdict there but that’s pending on motion for new trial in the State of — in the Alabama Court.

The other three cases were removed by the Times to the United States District Court.

The removal was sustained by the District Court but remand was ordered in a divided judgment of the Court of Appeals for the Fifth Circuit.

And that case involving the order of remand is also pending in this Court on petition for writ of certiorari in Number 52 of this term.

The publication claims of libel, the respondent —

William J. Brennan, Jr.:

Which was the — which was the James case, is that another Commissioner of Montgomery or (Voice Overlap) —

Herbert Wechsler:

He was the Commissioner who’s called the mayor.

Potter Stewart:

One of the three Commissioners is the mayor.

Herbert Wechsler:

Yes sir.

One of the three Commissioners.

And that case of course was not removed, that was after a verdict.

Potter Stewart:

And — and what’s the status of that case now?

Herbert Wechsler:

It’s pending in the Circuit Court of Montgomery County on an — is yet undetermined motion for new trial presumably, being held pending the decision of this Court here.

Arthur J. Goldberg:

THe verdict of this came (Inaudible)

Herbert Wechsler:

It was Mr. Justice.

Arthur J. Goldberg:

(Inaudible)

Herbert Wechsler:

It was.

The publication which the respondent claims to have libeled him was attached to the complaint and it’s most readily available, in facsimile form at the back of our brief.

Since in my submission, the case not only begins with the publication but ends there as well.

I respectfully invite the Court’s attention to the text.

As it shows upon its face, it was an advertisement published on behalf of an organization —

William O. Douglas:

Where is that printed here?

Herbert Wechsler:

It’s in appendix —

William O. Douglas:

Oh (Inaudible)

Herbert Wechsler:

— to the brief Mr. Justice Douglas —

William O. Douglas:

Yes, I —

Herbert Wechsler:

— which of course is a facsimile copy.

This — is the — it’s reproduced as the way it looked in the Times when it was published as well as the text.

It was published on behalf of the Committee, the name of which is on the bottom which was called the “Committee to defend Martin Luther King in the struggle for freedom in the South.”

Chairman of the Committee was A. Philip Randolph, the President was — the co-chairman was Gardener C. Taylor, Dr. Taylor of New York.

The other offices of the Committee are listed at the bottom of the page that includes such names as Father Ford and Dr. Fosdick.

The members appear under the statement, “Your help is urgently needed now.”

Some 60 names of well-known people, actors, lawyers, clergymen, politicians like Norman Thomas and the name of Mrs. Roosevelt.

The object of the publication was to obtain financial support for the three needs and I’m now quoting, which was stated in the last paragraph, the paragraph beginning, “We urge you to join hands.”

And those needs are put as the defense of Martin Luther King who I should add was then facing trial for perjury in Montgomery, Alabama.

The funds for his defense for the support of the embattled students and the struggle for the right to vote, these are the stated goals of the solicitation.

The recitation in the text, these 10 paragraphs, the small type, is of course a statement designed to support this cause.

The lead caption, “Heed Their Rising Voices” is a phrase that’s taken from a New York Times’ editorial of some days earlier as — is indicated at the top right hand corner where there’s a quotation from the editorial, which indicates accurately the sympathy with which this newspaper has viewed the Negro protest demonstrations in the South.

The text itself begins with the assertion that thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the United — U.S. Constitution and the Bill of Rights.

And it proceeds to claim that in their efforts to uphold these guarantees, they’re being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom.

Now, the succeeding paragraphs recite a series of alleged abuses visited on student demonstrators in some dozen Southern cities including Montgomery, Alabama.

Then the paragraphs go on to praise Dr. Martin Luther King Jr. as a symbol and the inspiration of the movement to allege that his peaceful protest had been answered by what the ad calls the “Southern Violators” with intimidation and violence designed to remove him as a leader.

Herbert Wechsler:

They urged the importance of defending Dr. King and the need of a material help by those who, in the language of the advertisement, are taking the risks facing jail and even death in glorious reaffirmation of our Constitution and its Bill of Rights.

I suggest, therefore, that the text was thus a statement of protest, that ad coelum interwoven to be sure with a recitation of events.

But it names no names but Dr. King’s and plainly makes no personal attack on any individual.

And reading it in this way, the — noting the prominence of the name to some of the signatories, the employees of the Times who received it, received the copy and the order for its publication from a New York advertising agency who received it of course in New York, approved its publication as what is called a newspaper parlance in editorial type advertisement, and so that publication appeared.

Now, the respondent claimed in the complaint and the Court and jury found that he was libeled by the third paragraph of the advertisement, the paragraph that begins in Montgomery, Alabama and by the first eight lines of the sixth paragraph, at the bottom of the middle column, the words that begin again and again, “The Southern Violators.”

Those were the portions of the advertisement set forth in the complaint in which the action was based.

Turning from the complaint to the record, the respondent’s evidence showed that this third paragraph beginning in Montgomery, Alabama was indeed inaccurate in some particulars and I would like to state as faithfully as I can, what those inaccuracies were.

It was shown by the evidence which I might say consisted and it’s a very imposing record which proves to be much less difficult than it seems because a great part of it consisted nothing but the reproduction of newspaper stories that were published by the New York Times in which the respondent’s claim showed it was doing business in Alabama but about at least half of these five volumes consist of nothing but those stories.

The — the evidence in the libel action was all in the second volume and it doesn’t run to more than — than a couple of hundred pages actually.

It might be — be helpful if I said that it runs from pages 567 to 818, the whole case on the merits is in those pages.

Now, I say the respondent’s evidence which consisted principally of reports that were made to the New York Times by its investigators after this controversy started and the suit was threatened or instituted, the Times had Claude Sitton, it’s Atlanta correspondent and a lad named McKee, who was a stringer in Montgomery, investigate what had happened and these reports came in.

They were then obtained on discovery by the plaintiffs and put into the record and they really constitute the — I shouldn’t say the whole because the respondent cuddles with this, but I say the heart of the case as to what actually occurred.

Now, what it shows is that there was a big demonstration in Montgomery, a thousand students went down from the Alabama State College, the Negro College there, went down to the Capitol steps as a group.

And massing on the steps, they said the Lord’s Prayer and sang the Star-Spangled Banner and then they walked back to the campus.

This was a protest against the earlier denial of lunch counter service in the courthouse building to some 30 students who had demanded service.

Potter Stewart:

Alabama State College is entirely Negro —

Herbert Wechsler:

So I understand Mr. Justice.

Potter Stewart:

At — in or near Montgomery?

Herbert Wechsler:

It is sir, yes.

Now, after this had happened, nine of the student leaders of this lunch counter demonstration were in fact expelled from college.

They were expelled by the State Board of Education of which the Governor was ex officio chairman and at which he appointed the members.

I believe the minutes of that meeting showing their expulsion also appear in the record, they were proven independently by another witness by respondent.

And of course when the expulsion took place, there was a student strike in protest.

That I think is consistent with what the paragraph says but the statement was inaccurate in saying as it did that the students refused to reregister.

They didn’t refuse to reregister or at least only an infinitesimal number may have.

And they — more than that, the ad was wrong in stating that their dining hall was padlocked in an attempt to starve them into submission.

There’s no evidence that the dining hall was padlocked.

The evidence says that it was not padlocked and of course, there was no attempt to starve the students into — into submission.

And reverting to the first sentence which says that truckloads of police armed with shotguns and teargas ringed the campus, the evidence doesn’t show that the police ever ringed the campus and that a literal sense, it shows that they were deployed near the campus in large numbers on three occasions.

Their armament is not shown by the record one way or another and that it is true that after a subsequent, in a period of a few days, there was another demons — student demonstration, this time on the campus.

Herbert Wechsler:

And the superintendent of grounds called the police and they came in, the students had grown rowdy and they made some 32 arrests.

The arrested students subsequently the record shows pleaded guilty and were fined in varying amounts for minor crimes like disorderly conduct.

Now, if I turn to the sixth paragraph, the Southern violators’ paragraph, I have to say that it was shown by the evidence to be a lot more accurate.

Dr. King’s home had at that time been bombed not once but twice.

One of the bombs failed to go off, the other did go off, he and his wife were home at the time.

He claimed at least to have been assaulted on one occasion when he was arrested, though the arresting officer denied that there had been a physical assault and there was a controversy in the record about that.

And he was arrested not seven times to be sure as the other paragraph says but it was established that he was arrested four times.

And as I said earlier, he, at this very time, was charged with perjury and an indictment in two counts that did indeed carry a potential sentence of 10 years if he’d been convicted.

He was in fact subsequently acquitted of that charge.

Now, these are the essential facts about publication that the courts below held unprotected by the First Amendment.

Now, I come now to the theory, I — I shall not permit myself to call it evidence that was relied on to sustain a verdict that these statements to which I’ve called attention libeled this respondent.

Arthur J. Goldberg:

(Inaudible)

Herbert Wechsler:

There were four in Montgomery.

There actually was another one outside of Montgomery Mr. Justice but when I said four, I meant four in Montgomery.

And I’m glad you asked me that because it reminds me that I failed to call attention to the perfectly obvious fact that this sixth paragraph doesn’t say a thing about Montgomery.

Arthur J. Goldberg:

(Inaudible)

Herbert Wechsler:

Correct.

Arthur J. Goldberg:

(Inaudible)

Herbert Wechsler:

He was arrested four times in Montgomery and my recollection is that that didn’t count another arrest in Atlanta.

I think perhaps it was on the perjury charge that he’d been in Atlanta and was arrested there.

I — I’m reasonably confident of my recollection about the fifth.

It would be easy to check.

Earl Warren:

You said it — you said it to be in the fifth paragraph that they object to?

Herbert Wechsler:

No, Mr. Chief Justice, they —

Earl Warren:

The sixth?

Herbert Wechsler:

Oh in — it’s the sixth, yes.

Earl Warren:

Yes.

Herbert Wechsler:

The words beginning again and again and down through the italicized words “10 years” on the eighth line.

Which —

Byron R. White:

(Inaudible) the college within the city limits?

Herbert Wechsler:

I believe it is.

I believe it is —

Byron R. White:

All within the city limits.

Herbert Wechsler:

— Mr. Justice.

Byron R. White:

But it is a state college.

Herbert Wechsler:

It is a state college.

Byron R. White:

It is a state college.

Herbert Wechsler:

I assume so.

Byron R. White:

And it is state supported.

Herbert Wechsler:

I know that it is a state college under the State Board of Education where they — where the Governor of the State, the ex officio chairman of the Board of Trustees.

William J. Brennan, Jr.:

May I ask Mr. Weschler, turning again to that sixth paragraph, is it every statement of every sentence to which the libel charge was addressed.

In other words, again and again, the Southern violators then started singing, speech of protests and intimidation to violence, is that (Voice Overlap) —

Herbert Wechsler:

I — I would have to answer your question in this way Mr. Justice.

I would have to refer to what the respondent argued at various times of this case.

The pleading did not separate out any particular statement.

And under the Alabama practice, no innuendo need be alleged so that we are at a loss and it gives a — may I say, a very unreal quality to this proceeding.

We are at a loss to know precisely in what respect the respondent claims that he was libeled.

William J. Brennan, Jr.:

But you do, as I understood you so far, if in effect you had conceded or review their mistake or inaccuracy, the word “seventh.”

Herbert Wechsler:

Yes.

William J. Brennan, Jr.:

But do you otherwise?

Herbert Wechsler:

The — no, I don’t concede any inaccuracy but I — I say that the record shows a contrariety of evidence on the question whether Dr. King was assaulted.

William J. Brennan, Jr.:

Yes.

Herbert Wechsler:

And those are the only —

William J. Brennan, Jr.:

The only concession you’re making is to enact it in using the word “seventh.”

Herbert Wechsler:

Exactly, sir.

Byron R. White:

Likely, I supposed the ad really charges “eight”, that’s seven arrests of a certain type (Inaudible) now he is charged — getting charged with (Inaudible) does that make the eighth?

Herbert Wechsler:

Well, that’s a problem of construction.

That point was not made by our opponents, they made almost every other point but they didn’t make that one.

Potter Stewart:

Then I suppose that’s technically inaccurate and it says that the (Inaudible)

Certainly —

Herbert Wechsler:

But —

Potter Stewart:

— on one count, it’s punishable by 10 years (Voice Overlap) —

Herbert Wechsler:

Exactly.

But I think in order to understand Commissioner Sullivan’s position fully and I would like to put it now as I understand it, let me say first that he’s been a Commissioner, elected Commissioner of the City of Montgomery since October 5th, 1959.

And he specifically, the Commissioner of Public Affairs and as such, his jurisdiction includes the supervision of a number of departments, police, fire, scales and cemeteries being the four are in — as the record indicates.

He doesn’t supervise the police force daily in the sense as the police chief does and there is a police chief.

But the police chief reports to Sullivan and he’s responsible himself or to Sullivan.

So it’s something like the relationship between — in a large city between the police commissioner and the mayor.

Commissioner is in-charge of day-to-day operations.

The mayor is his boss, in-charge of the whole show.

Now, Commissioner Sullivan testified and what he said was quite simply that he felt that the statements in the advertisement that referred to events in Montgomery reflected on him, on the other Commissioners and on the whole community.

And that he added that when they described police action or police activities, they were associated particularly with himself as the Commissioner who had jurisdiction of the Police Department.

And this really is the basic claim of the respondent in the case on which he won.

That references to the police, brought this publication home to him because he was the Commissioner who had jurisdiction over the police and the witnesses who testified for him are the people in Montgomery, some of them friends of his, testified to just about that.

Did the police —

Herbert Wechsler:

But —

— chief himself bring an action?

Herbert Wechsler:

No he did not Mr. Justice.

He apparently took a different view of the appropriate response to this type of publication.

Potter Stewart:

That’d be the statute of limitation (Inaudible)

Herbert Wechsler:

I think it has, sir.

Now, I think the most helpful thing that I could do next is to emphasize what the reference is to the police in the police of activities are.

And I call to the Court’s attention that there are only two allusions to police in the — in the parts of the ad that are involved as the statement in the first paragraph that after their leaders were expelled from school, truckloads of police, armed, ringed the campus, armed with shotguns and teargas.

The rest of that paragraph refers to state authorities when they put — entire student body protested to state authorities.

Their dining hall was padlocked and —

Byron R. White:

(Inaudible) the local police, could it be the state (Inaudible)

Herbert Wechsler:

It could be the state police.

It could be the state —

William J. Brennan, Jr.:

What were the facts — well, two days later, you mentioned the — there were more police to the number of arrests, who were they?

Were they (Voice Overlap) —

Herbert Wechsler:

No, these were the Montgomery police who made that —

William J. Brennan, Jr.:

And on those (Voice Overlap) —

Herbert Wechsler:

— those arrests.

William J. Brennan, Jr.:

— proof of those who where there on this occasion were the Montgomery Police?

Herbert Wechsler:

Yes.

William J. Brennan, Jr.:

You said they were stationed nearby or something like that.

Herbert Wechsler:

That these Montgomery Police, the record shows were deployed nearby.

That is correct sir.

Now, as far as the sixth paragraph is concerned — oh, I — I do want to say this.

So far as the padlocking statement is concerned, I submit that from the context and this is the real grievance about this paragraph incidentally, the padlocking, I submit that that grievance has just absolutely nothing to do whether respondent did this.

If anybody has a grievance about it, it’s the state authorities that are — they referred to him those words and not the Commissioner of the City of Montgomery or any other local authorities even if this theory of reference to the individual could be accepted which I deny.

And the sixth paragraph of course makes no allusion to Montgomery at all as I indicated earlier in response to Mr. Goldberg’s question.

And the only reference to the police is on the seven arrests which was wrong, it should’ve been fourth.

Now, we urge below and we argue here that such a reference is that to the police cannot be read as an allusion to the respondent as Commissioner in-charge in the context of prosecution of an action for libel.

But even if it could, what I have said, I think makes clear that any evidential basis for the claim of falsity must rest on very small discrepancies indeed between what was said and what the record shows to have been the case.

Now, at this point, I think I should recognize that the respondent takes a wholly different view what this case is about and I wish to state his view.

He says that the claim of libel was at the — this publication charged Commissioner Sullivan with padlocking the dining hall, with bombing Dr. King’s home, with assaulting and arresting him, with charging with perjury and indeed with everything that happened except that for some reason that I don’t quite understand, he makes an exception for the expulsion of students.

He acknowledges that that was the jurisdiction of the State Board of Education and he doesn’t take that to allude to himself.

When it came to the testimony about this reading of this document, which I submit is fantastic, the respondent merely said that he considered that since these statements appeared in paragraphs that contained a reference to the police that they all referred to the same people or at least could reasonably be taken to refer to the same people and that he did take them to all refer to himself.

And accepting this theory, the trial court permitted him solemnly to prove that he hadn’t really bombed Dr. King’s home and that the police in fact had done everything they could to solve that atrocious crime.

Had worked overtime on it and so on which of course was not challenged by anybody and counsel for the defense called in this position, found himself saying, “Well, we don’t claim that this was true.”

And of course, they didn’t claim that it was true that Commissioner Sullivan bombed Dr. King’s home.

On the contrary, what we claimed and claimed throughout the trial was that the — this piece of paper couldn’t be read to make the charge that Commissioner Sullivan had bombed Dr. King’s home.

Now, I don’t think any of the other facts in the record add significantly to the case.

The Times did retract the — these two paragraphs formally at the request of the Governor of Alabama, the then Governor, Governor Patterson who claimed to have been libeled and the Times published their retraction saying that they didn’t intend to imply by this statement any misconduct on the part of the Governor.

In explaining why they did this, they said they did it in deference to the high office that he held as — as Governor of the State.

What’s the effect of the retraction under Alabama law?

Herbert Wechsler:

The — the effect of it Mr. Justice was to bar punitive damages —

Punitive damages —

Herbert Wechsler:

— if considered adequate under the Alabama retraction statute.

Herbert Wechsler:

Governor Patterson obviously didn’t think it adequate because he sued $4 million after he got it.

But that would be an issue in that case if it ever went to trial as to whether he’d be entitled to any punitive damages.

Now, Times didn’t apologize to the respondent and indeed when he wrote a demand for a retraction.

The Times’ counsel replied that so far as they could tell, the third paragraph of the ad was accurate except for the padlocking statement and they couldn’t see how that or anything else referred to Commissioner Sullivan.

And they asked to let him know if he would, how he did feel that it referred to him and of course he brought suit at that point instead of undertaking correspondence and that didn’t surprise the Times which knew that he wanted to bring a suit.

The only other thing is that at the trial itself, Harding Bancroft, who was then Secretary of the New York Times, repeated what in substance had been said in the interrogatories earlier that while it was very hard to say what the New York Times thought about the truth of these statements since the Times is a large enterprise composed of many individuals that he could say that of all the knowledge that the Times had was embodied in these reports to which I have referred and that is, he read them.

He considered that except for that padlocking statement, the material was generally the general tenure of the material was substantially correct.

And of course, the Supreme Court of Alabama made a great deal of this testimony of Mr. Bancroft on the appeal and viewed it as the, I should say the prime basis for sustaining the punitive award.

Now, I come to the rulings —

Could I ask you one (Voice Overlap) —

Herbert Wechsler:

Yes, indeed.

— how many days did this advertisement published?

Herbert Wechsler:

One day.

Just one day.

Herbert Wechsler:

Yes, this March, 29th?

And with 394 copies you say?

Herbert Wechsler:

394 copies went to Alabama of which some 350 went to mail subscribers in Alabama being mailed — put into the United States mails in New York and the balance went by carrier, by rail carrier and perhaps a few even airmailed, air carrier I mean, to newsstands, news dealers in Alabama who simply sell them.

So that I suppose you get to New York Times in a few newsstands in Alabama the way you can get the Montgomery Advertiser at the Time Square in New York City if you look for it.

Now, the courts below denied our contention that this publication was protected by the First Amendment.

All they said about it was that the First Amendment does not protect libelous statements.

Then on the libel part of the case, they ruled that these paragraphs in suit where libelous per se testing that by the general test that whether they tended to injure reputation.

And that was a ruling made by the Court.

No jury ever passed on whether these statements were libelous.

But the trial court did submit to the jury the question whether these statements which the jury was told, were libelous per se were made of and concerning Commissioner Sullivan.

That question was put to the jury and as to the rest the Court told the jury that when a statement is libelous per se, falsity and malice and special damage — falsity of malice and general damages are presumed.

There was no need for any proof of damage by the plaintiff, actual damage by the plaintiff whatsoever and that punitive damages were available.

Arthur J. Goldberg:

But —

Herbert Wechsler:

They —

Arthur J. Goldberg:

Before you (Inaudible)

Herbert Wechsler:

Well, I can’t say that the court went that far Mr. Justice.

Herbert Wechsler:

I think that emphasis was placed on the official position of Commissioner Sullivan.

The — the Alabama Supreme Court made its view quite explicit.

It encountered the question on the issue whether — either as a matter of state law or as a matter of constitutional law, there was here sufficient evidence connecting this publication with the respondent.

So that even on conventional grounds, there was any basis for a verdict.

And what the Court said is at page 1157 of the record and the substance of it was that in measuring the performance or deficiencies of groups like public groups like police, Fire Department, other municipal agents, put praise or criticism, is usually attach to the official in complete control of the body that this is common knowledge and as I said, has its origin and established legal patterns.

I don’t know what those legal patterns were.

But in any event, this comes very close if it does not actually become a kind of presumption.

Now, if you talk about the police, you’re talking about the Commissioner.

Though, I can’t say that the New York Police tap wires for example, though I believe they do without giving Commissioner Murphy in — an action against May since it’s illegal for them to do it without a court order in New York and under the federal law.

And I’ve got to prove, I’ve got to prove truth and make my defense by proving true.

If this doctrine is constitutional libel law and of course we submit that it is not.

And our contention that the verdict and the judgment including of course the separate attack on the enormous award, work in abridgement of the freedom of the press were all rejected below.

William J. Brennan, Jr.:

(Inaudible)

Herbert Wechsler:

It is Mr. Justice, yes.

William J. Brennan, Jr.:

(Inaudible)

Herbert Wechsler:

Yes.

William J. Brennan, Jr.:

(Inaudible) as I get — I gather, to separate (Inaudible)

Herbert Wechsler:

We — we prayed for a separation which was denied, argued that this was error in the Supreme Court of Alabama.

It’s not adverted to in the opinion.

And I assume, therefore, that there is no requirement of state law that there be such a separation.

William J. Brennan, Jr.:

In any event, I gather there was no true fallback (Inaudible)

Herbert Wechsler:

None —

William J. Brennan, Jr.:

(Inaudible) as these — both from the supposed presumption of the —

Herbert Wechsler:

Exactly that — I would say the presumption if there’s a real presumption was rebutted on the record because the respondent’s own witnesses said they didn’t believe it of him and they didn’t think any less of him and he was asked if he could show that he’d been hurt in anyway and no way had he been hurt.

And the record is absolutely clear on that.

Does the record show (Inaudible)

Herbert Wechsler:

I have it in my mind Mr. Justice that the jury was out two hours and I believe the record shows it.

But I can’t be sure the record shows it.

I’m pretty sure it was two hours and a few minutes.

That’s right.

William J. Brennan, Jr.:

(Inaudible)

Yes.

It was over two hours.

Herbert Wechsler:

I apologize, a little over two hours.

Now, I come to my legal submissions and we have on the libel part of the case essentially two, perhaps three really.

Our first proposition is that this action was judged in Alabama by an unconstitutional rule of law, a rule of law offensive to the First Amendment, and offensive on its face to the First Amendment.

Taking that rule, where it amounts to as to a public official is entitled to recover presumed in punitive damages subject to no legal limit and amount for the publication of a statement critical of his official action or even of the official action of an agency under his general supervision.

If the Court finds that the statement tends to injure reputation, which the Court did find here and the jury finds that the statement makes a reference to him, and the only defense available is that the statement is true in all its factual material particulars.

There’s no qualified privilege in Alabama as there is in some states as the Court pointed out in Barr and Matteo, that — that the — the qualified privilege rule, it goes beyond allowing truth as a defense doesn’t apply in Alabama and indeed, the writers say it’s a minority rule.

So in that — in that sense, I’d grasp that metal and say that does apply to this kind of a statement.

We are attacking the constitutionality of the majority rule as it appears in the black letter of libel law.

Now —

Arthur J. Goldberg:

In this — in the assumption (Inaudible) is the safe passing of the common law rule (Inaudible) that would probably (Inaudible)

Herbert Wechsler:

Oh certainly, certainly we — certainly we assume that but I shouldn’t suppose that controversial.

That was certainly true in the Bridges case, it was the contempt.

And it was true in the Cantwell case as to breach of the peace and I should think —

Arthur J. Goldberg:

(Inaudible)

Herbert Wechsler:

I should think —

Arthur J. Goldberg:

Do you think that would (Inaudible) if the second (Inaudible) or that the statement (Inaudible) without offending the First Amendment?

Well, in the particular rule, (Inaudible) circumstance (Voice Overlap) —

Herbert Wechsler:

It’s this rule as applied to officials, then the criticism of official conduct which we submit is what the First Amendment to the Constitution of the United States, I was not — I will not say exclusively about, but was primarily about.

And we are actually making here in relation to this rule of law the same argument that James Madison made and that Thomas Jefferson made with respect to the validity of this Sedition Act of 1798.

(Inaudible)

William J. Brennan, Jr.:

(Inaudible) to official conduct —

Herbert Wechsler:

Yes.

William J. Brennan, Jr.:

— through official conduct, are there any limits whatever, which take it outside the protection of the First Amendment?

Herbert Wechsler:

Well, if I take my instruction from James Madison, I would have to say that within any — any references that Madison made, I can see no toying with limits or with exclusions.

I — I think —

William J. Brennan, Jr.:

(Inaudible) to say then that the — if the First Amendment gives it to — in effect on absolute truth (Voice Overlap) —

Herbert Wechsler:

The proposition is that the First Amendment was precisely designed to do a way with seditious libel.

Herbert Wechsler:

And seditious libel was criticism of it in punishment for criticism of the Government and criticism of officials.

Arthur J. Goldberg:

This applies to the (Inaudible)

Herbert Wechsler:

Exactly.

Of course, or any —

Arthur J. Goldberg:

And it was not — were not arguing here (Inaudible) rule that applies (Inaudible)

Herbert Wechsler:

Certainly not.

We’re talking about the full ambit of the First Amendment.

Now, I realized the weight of this argument at this time, the Sedition Act was never passed on.

But on the other hand, as I see our case, we’re in the same position that the contempt cases were in, in the 1940 when the scope of the contempt power had never been considered by this Court, when obscenity was here and that issue had never been considered.

In — in short, this is a field of constitutional interpretation which is 35 years old, that is a fact of life.

And this is the first time that we have had — that the opportunity has arisen to make this submission in this Court.

But I believe that if James Madison were alive today, so far as anything that I can see, in anything he wrote or — and particularly in the report on the Virginia resolutions that the submission that I am making was a submission he would make.

Potter Stewart:

In your argument — your argument would be the same and would cover the situation if — if the New York Times or anybody else had accused this official of taking a bribe (Voice Overlap) —

Herbert Wechsler:

Certainly.

Potter Stewart:

(Inaudible)

Herbert Wechsler:

Certainly, certainly.

Potter Stewart:

— or vying this office or —

Herbert Wechsler:

Certainly.

Many of the — of course in the historic period in which Madison was writing charges of bribery were common and it was this type of press freedom that he saw in the First Amendment.

Now —

Byron R. White:

But Mr. Wechsler, the — we don’t have here a case of a deliberate falsity —

Herbert Wechsler:

No.

Byron R. White:

So we — we don’t really need to — I don’t suppose that’s really posed here.

Herbert Wechsler:

Oh, I think it’s posed because the — the constitutionality of the rule by which the case was judged when challenged as this was challenged is surely an issue but there are different points that can be made and as — does bring me to my — my second —

William J. Brennan, Jr.:

Need next to be narrowed.

Herbert Wechsler:

Next to narrower and there were two.

And the first is — I — I would like to emphasize what it comes to Mr. Justice.

The issue is I think whether a state may constitutionally, for the sake of protecting individual rep — I’m sorry, for the sake of protecting official reputation.

We’re not dealing with individual reputation here.

We’re dealing with official reputation.

Herbert Wechsler:

It’s criticism of his official conduct that’s involved, not private and not his private life, though I admit that that’s not an easy line to draw since obviously, private affairs do bear on officials — on official competence and I’m not trying to oversimplify this.

But if this is a valid rule of law, the proposition must be that it is constitutional to prefer the protection of official reputation against that diminution which arises from the criticism of your official conduct that it’s constitutional to prefer that to the freedom of criticism or at least to do so was to criticism can be proved to be false.

Now, that pictures everything of —

Hugo L. Black:

Suppose that the jury found that he did?

Herbert Wechsler:

Well, I don’t think you can assume it was false here.

Hugo L. Black:

(Voice Overlap) it was not deliberate.

Herbert Wechsler:

You could —

Hugo L. Black:

I — as I — as I understood you had something to say about this.

Herbert Wechsler:

Yes.

But the record shows how far it was true and how far it was false Mr. Justice.

Hugo L. Black:

And the jury has passed on it.

Herbert Wechsler:

The jury was passed on it.

Hugo L. Black:

And they held it was false.

Herbert Wechsler:

Well, the jury actually didn’t —

Hugo L. Black:

(Voice Overlap) —

Herbert Wechsler:

— have the issue of falsity submitted to it.

And the jury was told that it was presumably false.

And it is true that we couldn’t plead truth and the reason why we couldn’t plead truth was that we couldn’t say that the ad said that Commissioner Sullivan bombed Martin Luther King’s home.

The — we didn’t think the ad said that, so the case had to be litigated in the trial court and it wasn’t litigated under the happiest circumstances for the defendant anyhow.

But it had to be litigated in terms of — of whether the statements made an actionable reference to Commissioner Sullivan.

Now —

(Inaudible) a complete defense, is it?

Herbert Wechsler:

It is a complete defense in Alabama but there’s no privilege beyond that.

Potter Stewart:

Well, how about fair comment, that’s suggested (Voice Overlap) —

Herbert Wechsler:

Only on facts truthfully stated.

So, under the Alabama law, you lose your privilege of comment as indeed under the law of many states.

Potter Stewart:

Yes.

Herbert Wechsler:

You lose your privilege of comment unless your facts are right.

And this of course is the rule of the Hallam case that Circuit Judge Taft wrote in late 90s in which pretty well-determined the black letter law in this point in the restatements and the books.

But I —

Potter Stewart:

The truth is a complete defense.

Herbert Wechsler:

The truth is a complete —

Potter Stewart:

(Voice Overlap) of pleadings?

Herbert Wechsler:

And it has to be and it has to meet the charge.

It must be as broad as the charge.

Arthur J. Goldberg:

(Inaudible)

Potter Stewart:

It went in — in short, and putting it bluntly, the reason you couldn’t plea that defense is that some of these statements were not true.

Herbert Wechsler:

At — and — but beyond that and the point I’m trying to make Mr. Justice Stewart is that the plaintiff was contending that the statements said that Sullivan had bombed King’s home.

Now, it was true that King’s home was bombed but it was not true that Sullivan bombed his home or that we conceive that anybody in the world in his right mind could read this —

Potter Stewart:

Well, I (Voice Overlap) —

Herbert Wechsler:

— to say that Sullivan bombed it, that was the difficulty.

Potter Stewart:

Yes, I see.

William J. Brennan, Jr.:

(Inaudible) the jury finding, I take it was, this meant that Sullivan bombed King’s home.

Herbert Wechsler:

I don’t know Mr. Justice.

The —

William J. Brennan, Jr.:

Well, wasn’t that issue of the identification?

Herbert Wechsler:

We don’t know what the jury thought —

William J. Brennan, Jr.:

Alright.

Herbert Wechsler:

— referred to Sullivan.

The jury did find that the statements referred to Sullivan but does that mean that all the statements referred to Sullivan or only some of the statements.

William J. Brennan, Jr.:

What was the actual submission to them whether — on — on the premise that if they found that anyone of the statements which on its face was libelous under that rule, referred to Sullivan.

They could bring in a verdict against Times.

Herbert Wechsler:

The — this issue was not clarified by the charge.

The charge was, you must consider whether the statements refer to Commissioners, you must be satisfied that the statements referred to Commissioner Sullivan without referring to weak statements or whether any of the statements would be enough.

And I think that leaves this in the position where there was — we have basis for grievance. Really, if any of the statements are not enough.

I think it’s the Stromberg case but the other issue is it’s so much broader.

Byron R. White:

(Inaudible) to believe that all these statements involved?

Herbert Wechsler:

It was free except that the evidence didn’t support such a view.

Byron R. White:

Was there any — no — no submission on this matter at all.

No — no submission on the matter at all, the jury, the instructions of the jury —

Herbert Wechsler:

No.

No, we asked for a directed verdict of course and our main grievance was that if the record verdict was denied.

Arthur J. Goldberg:

(Inaudible) the First and the Fourteenth Amendment, no public official can sue or rely upon (Inaudible)

Herbert Wechsler:

That is the broadest statement that I made but I wish in my remaining time to indicate what the — what the —

Arthur J. Goldberg:

(Inaudible)

Herbert Wechsler:

— lesser submissions are because there are many that I think must produce —

Arthur J. Goldberg:

(Inaudible)

Herbert Wechsler:

— the reversal in this case.

And I make that submission because of the impact on Mayor Madison’s report and other historic material about the First Amendment as applied to official, the criticism of officials.

But —

Arthur J. Goldberg:

(Inaudible)

Herbert Wechsler:

That’s right.

What he’d have to, would be to make a speech using his official privilege as mayor to make a speech answering this charge.

And that of course is what most mayors do and what the political history of the country has produced as I should say using the words in the different sense, common sense of American Libel Law, not that these actions are brought but that they’re not brought.

And indeed, Madison himself observed that if the law of libel hasn’t been wise where it had been enforced, we’d never have had a Republic.

Then it has been the point throughout the history of law that these provisions are not enforced.

And these actions are not brought, it’s only when you encounter a monolithic situation of the sort that we encountered in Montgomery that there’s any profit in bringing the action.

But my further points are these.

First, that even if — even if I’m wrong, you have then a situation here where law should surely attempt an accommodation of conflicting interest, the interest in protecting official reputation and the interest and freedom of discussion, but there is no accommodation here.

The qualified privilege rule might, is one way to work out an accommodation.

Judge Clark in the old Sweeney case suggested require limiting the action of proof of damage.

In Massachusetts, there’s no punitive damages and so on.

There are all sorts of a — of — of accommodating (Inaudible) that are possible but are rejected by Alabama here.

And then thirdly, on this point, we have of course the submission and we think there’s a constitutional submission that there was in this record no evidence sufficient to support a finding that these particular statements in this particular advertisement threatened the — this particular respondent’s reputation in any tangible way.

And since that is the finding which justifies on this assumption, the suppression of a constitutionally protected freedom, we submit that the normal scope of Supreme Court review as to the facts on this obtains.

And it’s Fiske against Kansas or — or one of the sedition cases in which the prosecution failed to make a record that warrants a finding of the jurisdictional basis for infringing the federal right.

Are we entitled to review the evidence here short of findings.

There was no evidence in the Thompson against Wilson?

Herbert Wechsler:

Yes.

I think very definitely Mr. Justice.

Herbert Wechsler:

I’m — I am not making that we have the Thompson argument.

But I think Norris and Alabama, we brought cases together at the be — beginning of the second point in the brief make perfectly clear that this Court bridges in California as the perfect illustration.

This Court has the responsibility and the duty to satisfy itself that the record sustains the basis on which the constitutional right asserted has been held to be unsound, untenable discrimination, coercion in a — in a confessions case.

And here — here, that fact is threat of injury to individual reputation.

And if there is no threat of injury to individual reputation on the facts, then does it not follow under this general principle of the scope of review that we are entitled to reversal.

I’m not saying it may make —

Arthur J. Goldberg:

Are you saying the state (Inaudible)

Herbert Wechsler:

Certainly and as a matter of fact, I thought Mr. Justice Harlan that in your own opinion in one of the obscenity cases where you talked about individualized judgment.

In individual cases, you are making precisely this point in what seems to me an analogous context.

Now —

William J. Brennan, Jr.:

Mr. Wechsler, (Inaudible) is the size of the award peculiarly important?

Herbert Wechsler:

The size of the award is part of our argument on the — on the evidence exactly that the — we say — that we say, there was no evidence for a finding of threat or injury but we add to that that surely there wasn’t any evidence to sustain a judgment of this sort which is a death penalty for any newspaper if multiplied.

William J. Brennan, Jr.:

Well, what — what I really meant was, I — I take it, one other thing that you think really trespasses upon First Amendment rights apart from anything else is the extent of which these practice, this jury completely at large in fixing — in arriving at an award.

Now, my point was whether that argument, that any of these three special grounds was all of them.

Herbert Wechsler:

The jury —

William J. Brennan, Jr.:

(Inaudible) in a dependent argument based on the purpose.

Herbert Wechsler:

It’s a part of the argument on the sufficiency of the evidence really but it is an independent one.

We say there wasn’t any evidence here for any — any award but certainly, there wasn’t any evidence for $500,000 award.

And it is $500,000 award that from the point of view of the press of this country carries the hazard of course that this case entails.

Now, I should say in closing that, there’s a separate submission on the jurisdictional point, I — I must submit that on the brief.

Byron R. White:

Mr. Wechsler, what is the fact of the record about whether the Times — whether the Times knew these — these statements which were involved?

Herbert Wechsler:

The exact facts Mr. Justice are that at the time when the publication was made, the New York Times had nothing, by way of information, to indicate that the statements were false.

Now, I know that that is inconsistent with what the Supreme Court of Alabama says.

It says that we had in our files, dispatches, stories from our correspondents that would show that the statements were false but the record does not sustain that statement.

Byron R. White:

And the — then the — if you accept the Supreme Court of Alabama’s aversions of — we must deal with your broader first ground.

Herbert Wechsler:

Yes.

Byron R. White:

And we — if you’re —

Herbert Wechsler:

But —

Byron R. White:

Why —

Herbert Wechsler:

But you —

Byron R. White:

Why —

Herbert Wechsler:

You have to accept the Supreme Court’s — of Alabama’s version also Mr. Justice on the other concerning point in order to get to the broad ground.

Actually, if you start with the narrow grounds and work to broad ones because if there was no evidence sufficient to relate this publication to Sullivan, I submit we are constitutionally entitled to reversal, even if we knew it was false as a matter of history.

Hugo L. Black:

Was that the finding?

(Inaudible) and was there — it was in evidence, (Inaudible) the evidence, Sullivan was a police commissioner, in-charge of the police, responsible for their actions, is enough to justify the jury in finding that the charge that the police acted terribly, terribly bad manner as to indicate injury.

The jury was — couldn’t find that that was a charge against him?

Herbert Wechsler:

In this case or in this statement, I most vigorously submit that the answer to that question is they could not.

The reason — well, the reason why they could not because the record shows if there are 175 policemen, that there was a police chief in addition to the Commissioner.

And there’s not the slightest bit of a suggestion here in my submission that what the police did, they were ordered to do by Commissioner Sullivan as the city commissioner with jurisdiction over the police.

Hugo L. Black:

Wouldn’t the jury have a right to adjourn, they have a right to determine that if the police of the city who were armed with shotguns, teargas bombs, go around and throw that — wait around with all that that it shown that the chief of police, the man — actually the chief of police was the Commissioner, wouldn’t that be enough for a judge or jury reasonably define that the head of the department was responsible in part —

Herbert Wechsler:

I haven’t —

Hugo L. Black:

— particularly, if it’s charged to be a continuant thing.

Herbert Wechsler:

Well, it isn’t charged to be a continuant thing in Montgomery, Alabama.

In this — in this document, there are two statements about the police and only two and ringing the campus was practically true.

Tom C. Clark:

And what if the (Inaudible) wouldn’t that case, sort of place that (Inaudible)

Herbert Wechsler:

I — in stating the case Mr. Justice, I accepted for purposes of argument, Commissioner Sullivan’s statement that when you talk about arrest, you’re talking about police.

But obviously, it is not explicitly important that the police arrested him.

I — I assume police do make arrests and that’s alright.

Tom C. Clark:

That’s in the reference at paragraph six, isn’t it?

Herbert Wechsler:

That’s paragraph six.

Tom C. Clark:

This charge from the (Inaudible)

Herbert Wechsler:

Yes.

Tom C. Clark:

This was (Inaudible) arrested upon (Inaudible) arrested, isn’t that correct?

Herbert Wechsler:

Well, there are citizens to arrest certainly but, I — I accept the proposition that that sentence can reasonably be tagged in this reference to police action if they had arrested them.

I don’t accept the proposition that they have arrested him, that — that they — and they have arrested him as the same as that they may bomb his home.

Obviously, this was a recitation of all the grievances that this man has.

Tom C. Clark:

Four of those were made in Montgomery.

Four of those were made in a particular house.

Herbert Wechsler:

Yes, in Montgomery.

Of course the ad doesn’t say that they were made in Montgomery but in fact, they were made in Montgomery.

Tom C. Clark:

Where is the (Inaudible)

Herbert Wechsler:

Well, he — he at one time lived in Montgomery as I understand it but he left and moved to Atlanta.

Tom C. Clark:

At this time he made (Inaudible)

Herbert Wechsler:

At the time of this publication, he lived in Atlanta.

Atlanta was his home, yes.

Tom C. Clark:

At the time of the arrest, he lived in Atlanta?

Herbert Wechsler:

At the time of the four arrests that the evidence showed, I believe he lived in Montgomery.

It could be that one of those was accurately left, and it could be the record isn’t certain about that sir.

Hugo L. Black:

(Inaudible) according to jury were to find — to have treated these paragraphs separately?

Suppose that the document as a whole showed that it was a charge intended to be the charge either by innuendo, insinuation or direct to the first statement that the police department has joined with a bunch of (Inaudible) to do the — permit the — what I was called offenses that are charged here.

Herbert Wechsler:

Yes.

Hugo L. Black:

Would you say that it’s the same that if — if it by insinuation, in innuendo, it would not be equally chargeable if you are wrong on your first big, broad ground?

Herbert Wechsler:

I — I think that’s a question of whether the innuendo is proved.

And the first you have to do in deciding whether it’s proved is to look at the document and ask yourself whether the document is reasonably susceptible of being read in a way that the innuendo charges.

I believe this is a way a libel case would normally be tried.

And many courts would rule — I believe, I think most courts would rule that this document could not be libelous under the common law of the United States because the only references here that could be taken to refer the respondent are references to police that that’s two larger group in the setting of this — of this evidence, 175 to permit the statement to be read to mean either all policemen or to mean not all policemen but just the Commissioner in charge.

Hugo L. Black:

(Inaudible) he was one in the group, that there were a 175 or 200?

Herbert Wechsler:

Well —

Hugo L. Black:

Do you accept Beauharnais?

Herbert Wechsler:

I distinguish Beauharnais on the ground that it had nothing to do with official conduct and that the issue with respect to official conduct was expressly reserved in the majority opinion.

It was deemed by the Court to be a different issue.

But if you ask me beyond that, Mr. Justice, whether I think Beauharnais was — should be followed and was correctly decided, I do not.

But I do believe it’s a different case than this and it does involve a finding, a state court finding of danger of violence which is an important public end and which is not involved in this situation at all.

Main distinction, I say is that was not official conduct.

And I can’t believe that in the State of Illinois where Judge Floyd Thompson wrote that great opinion, when the City of Chicago tried to sue for libel and got thrown out on the ground that you can’t libel a city.

I can’t believe he had turned around and sustained that action if Mayor Thompson had brought the action instead of the City.

And that’s what this was, that’s what this case is.

Byron R. White:

Mr. Wechsler, was there an issue made out in the instructions or for the jury to decide about the knowledge of the Times that — as the accuracy — accuracy of these statements in regard with punitive damages or —

Herbert Wechsler:

Yes sir.

Byron R. White:

The very —

Herbert Wechsler:

The —

Byron R. White:

The jury was supposed to decide that when (Inaudible)

Herbert Wechsler:

Well, no, there was an issue made but it didn’t work that way.

It’s requested charge 18 which is in the record and the — that the essence of the charge was — of the requested charge was that the jury — that punitive damages could not be returned.

I’m summarizing of course, could be returned only in the event that you, a jury — it’s at page 844 of the record, are convinced by a fair preponderance of the evidence that the defendant, the New York Times Company, in publishing the matter complained of was motivated by personal ill-well.

That is actual intent to do the plaintiff harm or that the defendant was guilty of gross negligence and recklessness and not just of ordinary negligence or carelessness in publishing the matter complained of so as to indicate a wanton disregard of plaintiff’s rights.

Now, that’s I think is close as we come to it Mr. Justice White.

That request was made and denied and no — there’s no equivalent of that instruction in the charge that was actually given.

Byron R. White:

No definition of punitive damages of —

Herbert Wechsler:

No, just — well, yes, punitive damages are given to deter the offender and to deter others but no indication of the —

Byron R. White:

The relevance acknowledged through within —

Herbert Wechsler:

Exactly.

No — no indication that the jury had to find malice in fact as libel are — is thought of malice in order to justify punitive award.

That is —

(Inaudible)

Herbert Wechsler:

That is not in the charge.

Byron R. White:

The way the case was tried, it’s irrelevant whether it was true — whether they knew it or not.

Herbert Wechsler:

Well —

Byron R. White:

And then — in a submission to the jury.

Herbert Wechsler:

There was in the testimony of course.

The testimony of Mr. Bancroft was the story from the Times’ point of view.

When it came to the requests, I think this is where it came up.

Our great exception was to the ruling that it was libelous per se and secondly, to the proposition that there was evidence that it was often concerning Sullivan.

Now, the (Inaudible) — that was the main contour of the trial.

Arthur J. Goldberg:

Mr. Wechsler, (Inaudible)

Herbert Wechsler:

No, we have not made that point, Mr. Justice.

Earl Warren:

(Inaudible)

Mr. Nachman.

M. Roland Nachman, Jr.:

May it please the Court.

I would like to address myself to what at the outset to what I consider to be a short difference between Mr. Wechsler’s analysis of the facts and facts as I see them.

M. Roland Nachman, Jr.:

And I would like to do that in the context that this case is here obviously after a jury verdict, after the case has been before a trial court on a motion for new trial, after it’s been before the high state appellate court.

And we do not rely on there being something in the record to support it.

We say there was ample and indeed overwhelming evidence to support the jury verdict but we do remind the Court at the outset in view of the trend of the argument as it has gone up to now.

We’re not here like in Norris on a question of whether a judge in a pretrial proceeding correctly decided the question of whether there was discrimination against Negroes in the selection of a grand jury panel.

And we’re not here as in Bridges on the question of whether a judge was correct when he decided a contempt proceeding.

We’re here after a jury trial with all that that means in terms of the Seventh Amendment.

Now, on the issue of falsity, which is where Mr. Wechsler began, I would like to take this step-by-step as this lawsuit progressed.

A demand for retraction was filed as it had to be filed under Alabama law before the lawsuit began.

An answer was received and this is in the record.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

It’s alright sir.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Yes, Your Honor.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

C. B. & Q. which we’ve — again, Chicago which we’ve cited in our brief Your Honor and other — many other cases say that the protections of the Seventh Amendment which surround the reexamination of jury verdicts apply equally to state jury verdicts as they do to federal jury verdicts.

That was the point that I had in mind sir, yes, sir.

The answer to the demand for retraction admitted at the outset that one of the serious charges contained in the ad was false, namely that the dining halls had been padlocked but there was a refusal to retract.

This refusal to retract came, the evidence shows after an investigation made by a string correspondent in Montgomery in which he outlined the falsity of these charges.

There was still a refusal to retract.

Then the lawsuit was filed and after certain procedural matters were out of the way, motions to quash and demurrers, the Times filed six separate pleas to the complaint.

Not one of those pleas, not one of the six had the slightest suggestion in it that this ad was true in any particular.

Mr. Wechsler made the argument that it might be difficult for the Times to plead truth because it might have to spell out its theory that there was some question in its mind as to whether the ad applied to the plaintiff.

But we would like to call the Court’s attention to the scope and detail of one of the pleas, pleas six which appears on page 102 of the record.

A plea which extends for almost three and a half pages of the printed record of this case, a plea which sets out the entire law of New York on libel, cite statutes as well as judicial decisions on the theory that the law of New York as a matter of choice of law should be applied to this case.

There was no difficulty in pleading truth in this case, we submit.

If the Times had felt this ad was true or any part of it was true, it could’ve set that out in its plea but it did not do so.

It did not suggest in any one of its pleas that any part of this publication was true.

Then we move to the trial.

We have excerpted in the appendix of our brief in opposition to the petition for certiorari on page 48.

We have excerpted 10 examples of comments made by counsel during the course of the trial, suggestions to witnesses and comments to the Court in the course of objections to evidence and so on, suggesting in the presence of the jury, if it please the Court, that this ad was false.

M. Roland Nachman, Jr.:

An example, if I may be indulged in reading.

“Isn’t in a matter of common knowledge in and around Montgomery that we have been reading from this ad is not true.”

This was to a witness.

This is page 625 of the record.

Answer: Yes sir, they know it’s not true.

Another example, “You didn’t believe it to be true when you read it, did you Mr. Kaminsky?”

Answer: No.

I didn’t think Mr. — Commissioner Sullivan would do that.

That’s at page 638 of the record.

Another example, to another witness, “You didn’t believe that it was true, did you?”

Answer: I knew it wasn’t true.

And another question to the same witness, “You never thought it was true or had any idea it was true?”

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I’m talking about — I’m addressing myself to Mr. Wechsler’s argument that this ad is — is inaccurate in certain particulars, Your Honor.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

No, sir.

The type of question I have referenced to is whether the ad — the words in the ad.

1I’m addressing myself to Mr. Wechsler’s contention as I understood it sir, that this ad was only incorrect in some particulars.

I’m — I’m saying that what went to the jury was an admission really by counsel for the New York Times from the very outset of this case, from the pleadings, from what happened during the trial and from the evidence which I will get to in a moment, sir.

That this was false not just in some particulars but completely false and that there was no attempt made at the trial by the Times to say that any of these was true.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I am not saying that there was no attempt made by the Times to justify.

As a matter of fact, as Mr. Wechsler pointed out, Mr. Bancroft, the Secretary of the corporation, who was there at the counsel table throughout the trial on the cross-examination, stated that he thought it was substantially correct with the exception of the padlocking statement.

What I’m saying sir is that there was evidence from the Times itself from his pleadings from — from statements of his counsel, from evidence in the case in addition to this which could justify a jury verdict that the entire ad was false.

And as I began by saying, this case comes here obviously, after a jury verdict and I’m saying that there’s evidence in the record that the entire ad was false.

Potter Stewart:

By the entire ad, you mean paragraph three and six?

M. Roland Nachman, Jr.:

Excuse me sir.

Yes sir, the two com — paragraphs, we complained of, Mr. Justice Stewart.

M. Roland Nachman, Jr.:

The — the second and — of the paragraph and the six I believe.

I —

The third.

M. Roland Nachman, Jr.:

I didn’t mean to — to address myself.

William J. Brennan, Jr.:

(Inaudible) I gather he was the Times counsel?

M. Roland Nachman, Jr.:

He was the trial counsel, yes, but there were others.

William J. Brennan, Jr.:

And now you’re suggesting that whatever he may have said, whatever you want to put on it in the way of interpretation that this was evidence to the jury?

M. Roland Nachman, Jr.:

Yes, sir.

He brought out questions from these witnesses.

This isn’t true and the witness said no.

It isn’t, and this went to the jury.

And — and we say that’s evidence to support a finding of falsity on the part of the jury, not just falsity in part but falsity completely.

We’re not saying that the Times, at some point did not seek to justify as indeed with Mr. Bancroft’s statement.

What we say is, here’s evidence that went to a jury on complete falsity, not just partial falsity.

William J. Brennan, Jr.:

May we reexamine?

M. Roland Nachman, Jr.:

We — we say, no sir, unless there is no basis whatever.

No, it’s devoid of reason, the Thompson test.

But we say —

Byron R. White:

(Inaudible) — you mean re — you mean examine the facts?

M. Roland Nachman, Jr.:

Correct, sir.

Or in other words, we say that the Seventh Amendment protects this verdict unless this Court finds that there’s no reasonable basis, whatever for it.

There’s no evidence at all to support it that the Thompson against Louisville situation —

William J. Brennan, Jr.:

(Inaudible)

M. Roland Nachman, Jr.:

The Seventh Amendment.

William J. Brennan, Jr.:

State trial?

M. Roland Nachman, Jr.:

State trial, yes, sir that that — the jury verdict reexamined otherwise and in accordance with the rules of common law which is — we understand the decisions of this Court —

William J. Brennan, Jr.:

(Inaudible)

M. Roland Nachman, Jr.:

— protects state verdicts as well as — as federal verdicts.

Byron R. White:

But I suppose if — (Inaudible) I gather it is that libel falls out the — outside the protection of the First Amendment that someone has to finally decide what is libel that what — what libel is that falls outside the protection of the First Amendment.

M. Roland Nachman, Jr.:

Well, yes, sir.

M. Roland Nachman, Jr.:

The jury was not —

William J. Brennan, Jr.:

The jury isn’t the final answer on that I don’t suppose.

M. Roland Nachman, Jr.:

You mean the characterization of the ad as libelous Your Honor?

That — that was a question that the Court decided but there we say that is a question of state law and — and —

William J. Brennan, Jr.:

That we can’t (Inaudible)

M. Roland Nachman, Jr.:

Your Honor, I would — I would answer that in two ways.

Up to now, as — as we — we read the cases, “The Court has left the characterization of publications as libelous or not libelous to the States.”

Now, if we would certainly concede that if a statement was made that somebody had blonde hair and a state court held that this statement was libelous per se, well of course this — this Court should — could review it.

But adverting to — to some of Mr. Justice Black’s observations in his questions, we say that when this kind of conduct is charged, this is within the normal usual rubric and framework of — of libel.

It charges them with criminal offenses of the charges which certainly hold them up to contempt and — and ridicule and disapproval and — and we think, we are well within the — the classic definition of libel.

We don’t say sir and no circumstances could — could this Court review a state characterization.

William O. Douglas:

(Inaudible) because the judge charges at the bottom of page 823 that this is libel per se.

And then on page 824, he says, “Writings libelous per se carry the presumption of falsity and of malice.”

And then later on down he says, “So in the case at the time that we have here where the Court charges you that this is libelous matter, that this libelous matter is libelous per se, then falsity and malice I presume.”

M. Roland Nachman, Jr.:

Yes, sir.

That’s a prima facie presumption.

William O. Douglas:

Yes.

M. Roland Nachman, Jr.:

The — this is not an absolute presumption.

In other words, if a publication is libel per se, that’s enough to get the plaintiff to the jury.

This does not mean that the defendant cannot introduce evidence to show that it’s true.

But in this case, the defendant didn’t even plead truth.

I — I submit that this is what the — the Court had in mind in as a prima facie presumption under Alabama law.

And — and certainly not an absolute presumption which cannot be rebutted by the defendant.

So we say that we come then to the question of the retraction.

Now, as Mr. Wechsler said, the Times retracted the same ad on the basis of the same demand where the Governor of Alabama used to do so for this plaintiff.

And this, may we remind the Court, was approximately six months before the trial and it was, the evidence shows after a second investigation had been made, this time by Mr. Sitton who was a regular full-time regional correspondent of the Times who was stationed in Atlanta.

He advised the Times that the first paragraph to use his words, was virtually without foundation.

As to the second paragraph, he noted the four arrests for Dr. King for — for speeding and loitering and — and the bombing and the fact that he was under indictment for perjury charged on which he was later acquitted.

The Times in its retraction stated that there were errors and misstatements in the ad and accordingly, it was retracted.

It didn’t specify that any part of it was true.

M. Roland Nachman, Jr.:

It retracted the whole ad and it didn’t simply apologize.

As I say, it stated that there were errors and misstatements in the ad.

Then six months later as — almost, when this case came to trial, the Times with no plea of truth, with these investigations in the record, with live oral testimony from witnesses including the respondent that the matters were false, with the judicial admission, we submit of a failure to plea truth which is an absolute defense regardless of motive under Alabama law.

This matter went to the jury and the jury found that it was false.

Now, we submit that there is ample support in this record.

We submit that Mr. Wechsler should fail before a jury and certainly before this tribunal on the question of whether or not there was ample evidence to sustain a jury verdict of falsity.

Now, let’s get to the question of the association of the police commissioner with these statements in the ad.

William J. Brennan, Jr.:

(Inaudible)

Potter Stewart:

(Inaudible) you said that — as I understood you, that the — that the retraction which the Times made at the request of Governor Patterson, admitted that the whole ad was false, did he say that?

M. Roland Nachman, Jr.:

Yes, sir.

It — it said for errors and misstatements.

And there was no — nothing in the ads Your Honor even suggesting as we recall it that there was — that there was any — any truth in the ad.

Arthur J. Goldberg:

(Inaudible) I’m reading it from page (Inaudible) of the petitioner.

Potter Stewart:

So am I.

M. Roland Nachman, Jr.:

Alright, sir.

William J. Brennan, Jr.:

(Inaudible) — complained of by the Governor, the New York Times has never intended (Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

And we read —

William J. Brennan, Jr.:

(Inaudible)

M. Roland Nachman, Jr.:

We read that Your Honor.

The qualification there is a question of reference, not the underlying statements in the ad.

We say that that ad — that statement qualifies on the question of whether or not this ad can be read as referring to Governor Patterson, not as to whether or not the underlying subject matter of the publication itself is true or false.

And — and that was the basis for — for my statement that there’s no attempt in that to say that any of this ad was true.

They simply say, “We don’t think it can be read to refer to Governor Patterson but we’re retracting anyway so to speak.”

I — I —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Well the errors and misstatements Your Honor, I think are — are different ways of saying that it’s — that it’s false.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Your Honor, if — if I might sir —

Earl Warren:

(Inaudible)

M. Roland Nachman, Jr.:

Could I call your attention to page 596 of the record about midway down, since publication of the — for its — its just before Folio 1715.

“Since publication of the advertisement, the Times made an investigation and consistent with its policy of retracting and correcting any errors or misstatements which may appear in its columns herewith retracts the two paragraphs complained of by — by the Governor.”

Now, we say that there is no qualification there as to any part of those paragraphs being true.

The clear implication is that both paragraphs to use the words were erroneous or misstated.

They were exactly the same two paragraphs that this plaintiff complained about and we say as the Alabama Supreme Court said, “If it was false for Patterson, it was equally false for Sullivan.”

And this went to the jury on the question of falsity.

Now, on the matter of association, we certainly feel that —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

That’s alright sir, I’m — I’m glad to answer the —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

That’s right, sir.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

That’s what he said first before cross-examination.

But then he said — then on cross-examination, he was asked whether the Governor and this plaintiff were not on a par.

They are put on a par Governor Patterson and this plaintiff, this is from page 779 of the record, “Yes, but there was a retraction for Governor Patterson and there was no retraction for this plaintiff, that is correct, isn’t it?

Answer: That is correct.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

That’s as — that was the first thing he said Your Honor but then he said that they were on a par in this regard and that there was no — I — I assume the jury could — could determine from that that there was no greater reference, no more precise reference to Patterson than there was to the plaintiff in this case.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

In my opinion — in my opinion, everything except the — the academic discipline of expulsion from school refers to Mr. Sullivan.

If — it — we think can reasonably be read, in fact, irresistibly read as describing police action resulting from the singing of My Country, ‘Tis of Thee from Capitol steps.

And Mr. Sullivan conceded at the trial of course that he had no academic disciplinary function and — and that this expulsion of course does not refer to him.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

We think that —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

It’s a clear sort of police action that was — especially in view of the earlier reference to — to the police in there.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Your Honor, municipal authorities can reasonably be construed by a jury to the state authorities too.

M. Roland Nachman, Jr.:

They — they’re police authorities within a state.

We don’t say that a reasonable argument can’t be made that state authorities in certain context don’t mean police.

But again sir, I return to the — to the context, this is a question of whether a jury could reasonably make a connotation.

And we say certainly that police authorities in state can — can or reasonably connote to the average ordinary reader which is the test that the jury has before it that these statements have reference to the man who’s in charge of the police.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Well, we — we simply don’t because the — the respondent conceded at the trial that — that he had no jurisdiction in that regard and made no contention whatever at the trial at that particular statement re — referred to him.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

He would in certain circumstances where — whether — order — with peace and order were threatened, I’m sure he would.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Your Honor, in paragraph 6, we would like to advert to an observation which Justice Clark made and which was — was, I thought rather notably underplayed in — in Mr. Wechsler’s argument.

The repeated use of the word “they”.

Now, here I’m not relying simply on my analysis or a hypothetical analysis.

I asked on cross-examination a witness with the Times, Mr. Aronson whether that “they” is used repeatedly in that paragraph refer to the same persons.

And after some backing and filling, he stated that it did or could be read that way.

Now, this evidence went to the jury and it’s our contention that a — an ordinary reader of — of normal intelligence knows that the people who arrest for loitering and speeding of the municipal police.

There is no attempt made in this paragraph to differentiate in any manner that “they” who arrested for loitering and speeding from the “they” who bombed and that “they” who assaulted and the “they” who indicted for murder.

We don’t say that this is an irresistible connotation in all contexts.

We do say that it’s not only is a reasonable one but that it was indeed made by the Times own witness, Mr. Aronson who had had more than 20 years experience in a screening process of this kind of editorial type ad as the Times describes it.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

What the — the thing —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

The thing that would prevent in Alabama Your Honor is Alabama jurisprudence which requires — which —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

— which requires that a group be sufficiently small so that the identification can readily be made.

And that a person in an entire community, under Alabama law would not have standing to sue because the diffusion of — of the attack, the diffusion of the invidious remarks would be so great that under Alabama law, it could not be applied to this man as a plaintiff, a member of a community with no other identification as a plaintiff in a lawsuit.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I think it would.

The —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

The cases which — which the Supreme Court of Alabama has cited completely in these matters if we construe them, requires what — what, as we submit most states do that where you’ve got this area of group libel or — that has to — that the group has to have a — a bounds or — and in Alabama reasonably — small bounds in the context of your question Your Honor.

M. Roland Nachman, Jr.:

I — I think that the community could not — a member of the community could not.

But I don’t think we have that question in this case.

I think that the — that the association is — is certainly clear enough.

We think it’s very clear but certainly clear enough to warrant a jury finding that the charges of this sort of are terrible and — and indefensible police action reflect on the man who is police commissioner of the city.

And I don’t think we need to go beyond that.

I think sufficient on to the day if this matter arises but I don’t think it would arise in Alabama because of the — of the Court’s restriction in this matter.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

The question was asked earlier about the police chief.

I would say that he could, yes sir.

Though I do — I do say that — that an elected official such as the Commissioner has a large notoriety and identification.

I think that when something goes wrong in a massive sort of way like this that people think of the — of — of the mayor and the council.

They’re the ones who’s suppose to run the city and when something like this happens, they are the ones that that people think of and — and especially that at election time and that sort of thing.

But I — I would think if the police commissioner could, an answer to an earlier question, I would reaffirm what Mr. Wechsler said the statute of limitations has one, that it’s one year in Alabama and — and there has been no suit by the police commissioner.

Well, was there any effort to prove special damage (Inaudible)

M. Roland Nachman, Jr.:

To this extent Your Honor, one of the witnesses testified.

He was a former employer of Mr. Sullivan.

Mr. Sullivan, as the record shows, had formally been in the Public Service Commission of Alabama in — in the transportation safety field and after he left there, before he was elected Commissioner, he had worked for a truck line in — in a similar capacity.

And this man testified, his former employer that if he had believed the matters contained in this ad that he would not reemploy Mr. Sullivan.

We think that — that this — this kind of thing certainly enabled the jury to find it in the future long after this man could come back into court and ask a jury to give him some special damages that he might be damaged especially in this regard.

But in the sense of showing any actual out-of-pocket loss of money at that time, no sir, there — there was no showing to that.

But we submit that the jury could fairly take into account future losses of — of earnings of that sort or if the — the occasion arose.

And of course, we also — I — I don’t know to what extents Your Honor would refer to — to what we call general damages that is damages for — for injury to reputation, for hurt feelings to that sort of thing.

That is also allowed in Alabama and that is different from what I have just described as special damages and then of course in addition to that, there are punitive damages.

And I would like to remind the Court that under Alabama law, there is a very broad retraction statute.

I — I understand from — I believe it’s Mr. Chafee’s article that we’ve cited in — in our brief that Alabama and Virginia were two of the earliest states which enacted these retraction statutes and that a — that a defendant in Alabama can eliminate entirely special and general damages as I’ve described in — by retraction.

The Times, we submit, has done this in the Governor’s case.

It refused to do it in our case and if the Times had done it, the Times had done for this plaintiff what it did for — for Governor Patterson, it would not be in the situation which it finds itself today.

William J. Brennan, Jr.:

(Inaudible) — action of (Inaudible) take out of the case, especially in general damages?

M. Roland Nachman, Jr.:

Yes, sir.

We’ve —

William J. Brennan, Jr.:

At least punitive, is that it?

M. Roland Nachman, Jr.:

Excuse me sir.

I beg your pardon.

It takes out punitive and — and general and leaves in special, I — I’m glad you corrected me on that.

We’ve cited the statute on page 68 of — of our brief.

It’s Title 7, Section 915 and — and makes actual damages only recoverable where there has been a retraction.

And we submit that that this plus the Alabama defense of fair comment, plus the absolute defense of truth in Alabama are means which Alabama were they not only the constitutional command of the United States Constitution but the command of its own Alabama Constitution.

The accommodation which Alabama seeks to make with this freedom of the press and freedom of speech but —

Earl Warren:

(Inaudible) that retraction statute found?

M. Roland Nachman, Jr.:

No, sir.

Oh, Mr. Chief Justice, I do not —

Earl Warren:

I mean, irrelevant to this (Voice Overlap).

M. Roland Nachman, Jr.:

I believe there are a good many, sir but I — I couldn’t say exactly how many.

We say that all — that —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Alright, sir.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Your Honor, the — the two reports Mr. Wechsler talked about one of them.

First report, the report from the key, the stringer said that a passing police car came by.

Mr. Wechsler stressed a later investigation which they asked, I believe a month or so later where it said that at one time, they were to forward in large numbers.

Arthur J. Goldberg:

You’re not assuming —

M. Roland Nachman, Jr.:

Yes, but I will assume for the sake of the hypothetical what —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

May — may I be sure I understand the — the question correctly.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I — I certainly would contend that a retraction of — was –was an order Your Honor.

I think that — that a great deal or more of the ad than that one sentence applies to this plaintiff and we alleged it into —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Well, in the first paragraph —

(Inaudible)

M. Roland Nachman, Jr.:

In the first paragraph — to the third paragraph, the first one that we complained about other than the unprecedented wave of terror in the preamble.

We think that the padlocking does refer to the — to the police and —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

(Inaudible)

M. Roland Nachman, Jr.:

That’s right sir and we’ve —

(Inaudible)

M. Roland Nachman, Jr.:

And then in the — in the other paragraph as I’ve stated the repeated use of the word “they”.

Mr. Aronson’s testimony that “they” refers to the same people, “they”, arrest for loitering and speeding, as to the police that they’re the same people who did that either participated in or — or condoned the bombing and the rest of it.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

That was the question I attempted to answer before.

I — I still think that the rest of —

Arthur J. Goldberg:

The whole point of your argument (Inaudible)

M. Roland Nachman, Jr.:

You left police and —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I — well —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I would take the same position.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I would —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I would take the same position Your Honor and I would be in accord with Mr. Aronson of the Times.

Arthur J. Goldberg:

Do you think (Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

I would.

Not as much possibly but certainly he’s liable and certainly, the reference we submit is clear enough for a jury to find especially when this testimony from the defendant’s own witness that the association was made through the repeated use of the word “they”.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

Well, police action, we submit is clearly described.

And — and arrest, we don’t think Your Honor that you got to say the police arrest in order to — to contend the arrest refers to the police.

We think that if you use the test of what a normal intelligent reader understands, that a normal intelligent reader understands that arrest are made by the police.

An argument can be made that private person’s arrest but this doesn’t mean that a jury as a matter of constitutional law has defined that arrest in that context don’t relate to police.

On the question of malice and deliberateness to — to get to a matter that Mr. Justice White raised earlier in the argument, we submit sir that there was plenty from which the jury could find deliberateness.

We think that — that the inconsistent treatment of — of Governor Patterson and this plaintiff, the treatment of this plaintiff after investigations showed falsity.

The treatment of this plaintiff by the testimony of the Secretary telling the jury that it was not substantially incorrect after his own lawyers couldn’t even plead truth, the failure of the Times to apply a very rigorous set of advertising acceptability standards as they called them.

They — they — that booklet is in evidence and —

Byron R. White:

(Inaudible) the Alabama law?

Do you say that knowing the statement is false at the outset if he refused to retract that, you know it’s false?

M. Roland Nachman, Jr.:

Yes sir.

Byron R. White:

That’s the — the jury would get him up the stand though?

M. Roland Nachman, Jr.:

Yes sir.

And — and/or beyond that, that the jury had before it a deliberate failure of the New York Times personnel of people who are put on the stand, who were brought down there and put on the stand by the defendant.

Two of its three witnesses were —

Byron R. White:

(Inaudible) to this case unavoidably presents the question of whether or not a — a person may tell a deliberate lie about a publication?

M. Roland Nachman, Jr.:

We think this evidence on which a jury —

Byron R. White:

Oh, is that the issue?

M. Roland Nachman, Jr.:

No, sir.

That is not the issue.

Byron R. White:

But that’s the — but that — that’s a question of the First Amendment whether the — whether a — whether you may publish a deliberate lie —

M. Roland Nachman, Jr.:

Oh — oh yes sir.

Byron R. White:

— in order to lie —

M. Roland Nachman, Jr.:

Yes Your Honor.

Byron R. White:

— about a public official?

M. Roland Nachman, Jr.:

We do.

We — we think that the defendant in order to succeed must convince this Court that a newspaper corporation has an absolute immunity from anything it publishes.

And in an answer to one, I believe, it was Mr. Justice Stewart’s question.

I — as I understand their contention and as I understand what they said it to be, if a newspaper charges or let’s say a mayor or a police commissioner was taking a bribe that there is absolute immunity against the libel suit in that regard and we think that’s something brand new in our jurisprudence.

M. Roland Nachman, Jr.:

We think that it would have a devastating effect on this nation.

Byron R. White:

But even (Inaudible) — if it were held here — it were held here that a newspaper could publish a (Inaudible) which — this must be true, that would still (Inaudible)

M. Roland Nachman, Jr.:

You mean a reasonable belief in truth?

Byron R. White:

Yes.

M. Roland Nachman, Jr.:

No, sir.

Not under Alabama law.

It would have to be true.

Byron R. White:

But on the (Inaudible)

M. Roland Nachman, Jr.:

They —

Byron R. White:

— this case, say they knew it was false or (Voice Overlap).

M. Roland Nachman, Jr.:

Yes, sir.

We say that on the facts of this case, there was ample evidence from which a jury could find that there was the kind of recklessness and abandon and an inability to look at facts at the beginning before publication which could be the equivalent of — of intent.

Potter Stewart:

Well, then you — don’t you also say that the failure to retract —

M. Roland Nachman, Jr.:

Later Your Honor.

Potter Stewart:

— (Voice Overlap) of the falseness is —

M. Roland Nachman, Jr.:

After — after knowledge came but I say, even before that, that that they — they have as I was going say, these advertising acceptability standards.

They’re suppose to screen these ads under newspaper procedure, not under Alabama law, but under the procedure that — that the Times has set up.

They brought down presumably the two people under that screening process who were supposed to look at this ad and see whether it passed master under the libel laws among other tests.

The first man said he scanned it horridly, this is Mr. Aronson, and didn’t find anything offensive in it.

I even asked him whether he found any extravagant or superlative language and he said he did not even though the ad uses the phrase unprecedented wave of terror.

And then the — the man who is in-charge of the department, Mr. Redding, who is — who is in-charge of the advertising acceptability department, was put on the stand and he said he didn’t do anything at all.

He didn’t check with any of the — the signers of the ad.

He — the Times specified in answers to interrogatories, 16 separate news articles which related to the subject matter purportedly described in this ad.

We asked that specific question.

They specified 16 stories and Mr. Redding said he didn’t look at one of them before this ad was — was sent off for publication.

And so at that stage, we say there was a recklessness that — that was — was illegal equivalent of intent.

And then beyond that as Mr. Justice Stewart points out, we have the retraction for one and not for the other in precisely similar circumstances and that’s the case that went to the jury.

And certainly, the intent, we submit, of the author of this ad, the man who wrote it, sent it in and paid almost $5000 to have it published, it’s a paid ad in the New York Times.

That man certainly intended as he testified unequivocally to make this ad as devastating as possible because the purpose of the ad was to raise money and he wanted to use his phrase to make it as appealing as possible.

We submit that the — this Court and no other courts had ever made a distinction between libel of public officials and libel of private persons.

M. Roland Nachman, Jr.:

Public officials, as this Court pointed out in Pennekamp have a right to sue for libel when they have been defamed.

Byron R. White:

What — where in the record — was there any way of finding out what the jury found or —

M. Roland Nachman, Jr.:

There were no —

Byron R. White:

— or any other — or any other — or any other Alabama courts about the questions (Inaudible)

M. Roland Nachman, Jr.:

Your Honor, under Alabama practice, a jury has a right to bring back a general verdict as distinguished from — from the federal practice.

The Times, and I think the individual defendants asked four special verdicts but the Court — we’ve cited several Alabama cases in our brief which say that under Alabama practice, a jury has a right to bring back a general verdict.

And — and there is no special verdict in this case and I know of no way to — to determine —

Byron R. White:

Did the Alabama —

M. Roland Nachman, Jr.:

— what they deliberated on.

Byron R. White:

The Alabama Supreme Court feels it’s necessary to sustain the verdict to the (Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

It — it made — the Alabama Supreme Court made a specific finding that there was evidence in the record from which malice could be found.

Byron R. White:

Does it say a finding?

M. Roland Nachman, Jr.:

Yes, sir.

They found it or they — they found that — that the — that matter involving Mr. — Mr. Bancroft.

The — I’m reading from 273 Alabama 686.

“On the other hand,” during his testimony, it was a contention that — that the Times mentioned that the — I mean that the Court had mentioned this retraction that — that we discussed.

“On the other hand, during his testimony it was a contention of the Secretary of the Times that the advertisement was “substantially correct.”

In the face of the cavalier ignoring of the falsity of the advertisement, the jury could not have — but been impressed with the bad faith of the Times and its maliciousness inferable therefrom.”

In other words, once all of the facts were on the table from the very early investigations through the retraction, through the conduct of the Times, attorneys in the trial where they conceded falsity, the Secretary nevertheless and in the face of all that, told the jury that this was substantially correct.

(Inaudible)

M. Roland Nachman, Jr.:

Plaintiff asked, but no charges.

Any charge at all?

M. Roland Nachman, Jr.:

No, sir.

Hugo L. Black:

Could the plaintiff has had asked for a charge if we, the jury find all the issues in favor of the plaintiff?

M. Roland Nachman, Jr.:

I — I don’t believe that.

Hugo L. Black:

That was normally the fact here.

M. Roland Nachman, Jr.:

I don’t believe that would be permissible, so we — we ask for no — I mean I — we — the plaintiff could’ve asked for a directed verdict.

Hugo L. Black:

It was normally the practice so that the plaintiff did not want to take a risk on a general verdict referenced to some of the issues.

He could ask the Court, (Inaudible) the jury.

Hugo L. Black:

We, the jury, find all of the issues in favor of the plaintiff and under those circumstances, it would’ve foreclosed all issues but a general verdict might not, was that — was that proved and abandoned?

M. Roland Nachman, Jr.:

I — I don’t know but sir, but I’m — I’m not prepared to say it’s been abandoned or —

Hugo L. Black:

(Inaudible)

M. Roland Nachman, Jr.:

— or I — I’ve — I’ve never done it and I’ve never seen it done but —

Hugo L. Black:

It was formerly or effective, I know in dispute.

M. Roland Nachman, Jr.:

But in this case, there was no requested charge from the — the jury — to — from the judge to the jury.

In this connection, we would like to point out again and answer to some of Mr. Justice White’s questions to Mr. Wechsler with regard to charges that — that the — they were very precise exceptions made to the overall charge by the defendant, New York Times and none of them are related to any of these — these matters.

We — we submit that certainly at this stage, the New York Times could not contend that there is any deficiency in the overall charge which the judge gave to the jury.

Indeed, it makes no such argument in these briefs, in this Court and —

William J. Brennan, Jr.:

(Inaudible) thousands with the 5 million and (Inaudible) the 5 million I take it, (Inaudible) on this record, could still be the (Inaudible)

M. Roland Nachman, Jr.:

Your Honor, on that as we’ve argued in our brief, as we understand the cases of this Court, it has not heretofore gone into the question of the excessiveness or inadequacy of damages.

(Inaudible)

M. Roland Nachman, Jr.:

Yes, under the — under the Seventh Amendment.

The C. B. & Q. case against Chicago which I’ve cited earlier was the case where $1 was brought back in a condemnation case against the Railroad.

This Court held that it — it would not go into the question of the adequacy of that award.

We —

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

The latest case on this question of damages that I know of is Neese against Southern Railroad where this case — or where this Court expressly refused or declined to go into this — this question.

Arthur J. Goldberg:

(Inaudible)

M. Roland Nachman, Jr.:

I — well, I was going to say Your Honor that — that we — we would — we will concede that at some point, you get into a question of whether there is any evidence at all that Thompson against Louisville test so to speak.

William J. Brennan, Jr.:

But why 500,000 there is, but there wouldn’t be a full $5 million, I don’t follow it.

M. Roland Nachman, Jr.:

Well, we think that the — that if this Court went into the question at all as we submitted has not heretofore done, the question would be whether there was any reasonable basis whatever for this verdict.

In our brief, we have pointed out situations a New York verdict seven times as big, $3,500,000.

It has since we wrote the brief and cut to $550,000 by the appellate division.

But on the question of reason — sir?

(Inaudible)

M. Roland Nachman, Jr.:

Faulk against Aware, Inc.

It was a case in which this publication of —

(Inaudible)

M. Roland Nachman, Jr.:

Yes, sir.

M. Roland Nachman, Jr.:

It was a libel case, I — I — excuse me sir.

It — it was a — a libel case and as I say, there was a $3,500,000 award in that case and the Times itself on the issue of reason said that this has a healthy effect.

We submit that in — in the context of this case, a small verdict would have been a bagatelle.

It would’ve been a slap on the wrist to the Times for this sort of conduct even — even if you consider this as being entirely punitive damage.

And it would —

(Inaudible)

M. Roland Nachman, Jr.:

No, sir.

It was against a much smaller publication with a — I think a circulation of about 2000, a — a publication with obviously nothing like the prestige that this ad carried all the news it’s fit to print, all the rest of it.

We think that — if that all impel a large and substantial verdict in this case which the jury awarded.

Thank you sir.