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Washington, D. C. The above–entitled matter came on for hearing before the Supreme Court of the United States at 12:30 p.m. BEFORE:
APPEARANCES:
[*1] PROCEEDINGS MR. CHIEF JUSTICE WARREN: No. 39, New York Times Company, petitioner, versus L. B. Sullivan. BAILIFF: Counsel are present. MR. CHIEF JUSTICE WARREN: Mr. Wechsler? ON BEHALF OF THE PETITIONER MR. WECHSLER: Mr. Chief Justice, may it please the Court: This case is here together with No. 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 with a dimension not confronted since the early days of the Republic. MR. JUSTICE BRENNAN: I am sorry; I am having difficulty hearing you. MR. WECHSLER: I was saying that the writ calls for review of a judgment of the Supreme Court of Alabama which, in our submission, poses hazards for the 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, a very small amount of advertising emanates from sources within the state, and a very small circulation of the paper—in this instance, 394 copies of a 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 [*2] Commissioners of the City of Montgomery, Alabama. It was brought against The Times and four co–defendants who were then residents of Alabama—four clergymen, the Reverends Abernathy, Shuttlesworth, Seay and Lowery. These are the petitioners in No. 40. The complaint demands damages of half a million dollars for libel allegedly contained in two paragraphs of a full page advertisement that was published in The Times on March 29, 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. The ad damnums in these other suits total two million dollars. But this was the first of the five cases brought to trial and it resulted in a verdict and judgment against all defendants for the half million dollars claimed. 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 is pending on motion for new trial 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 No. 52 of this term. The publication claimed to libel the respondents— MR. JUSTICE STEWART: The James case, was that not another Commissioner of Montgomery? MR. WECHSLER: He was the Commissioner, called the Mayor. MR. JUSTICE STEWART: One of the three Commissioners is the Mayor? MR. WECHSLER: Yes, sir; one of the three Commissioners. That case, of course, was not removed. That was after verdict. MR. JUSTICE STEWART: And what’s the status of that case now? MR. WECHSLER: It’s pending in the Circuit Court of Montgomery County on an as yet undetermined motion for new trial, presumably being held pending the decision of this Court here. MR. JUSTICE GOLDBERG: Was it averred in that case also for 500,000 dollars? MR. WECHSLER: It was, Mr. Justice. MR. JUSTICE GOLDBERG: Was that the amount requested as damages? [*3]MR. 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— MR. JUSTICE DOUGLAS: Where is that printed? MR. WECHSLER: It’s in the appendix to the brief, Mr. Justice Douglas—which, of course, is a facsimile copy. This reproduces the way it looked in The Times when it was published, as well as the text. It was published on behalf of a committee, the name of which is on the bottom, which is called “The Committee to Defend Martin Luther King in the Struggle for Freedom in the South.” The Chairman of the Committee was A. Philip Randolph. The Co–Chairman was Gardner C. Taylor—Dr. Taylor of New York. The other officers of the Committee are listed at the bottom of the page. They include such names as Father Ford and Dr. Fosdick. The members appear under the statement, “Your Help Is Urgently Needed Now,” some sixty 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 am now quoting—which were 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 were for the defense of Martin Luther King, 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 ten paragraphs of small type, is, of course, a statement designed to support this cause. The lead caption, “Heed Their Rising Voices,” is a phrase that was taken from a New York Times editorial of some days earlier, as is indicated in 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 mass demonstrations in the South. The text itself begins with the assertion that: Thousands of southern Negro students are [*4] engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights. And it proceeds to claim that: In their efforts to uphold these guarantees they are 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 protests have been answered by what the ad calls “the southern violators” with intimidation and violence designed to remove him as a leader. They urge the importance of defending Dr. King, and the need of material help by those who, in the language of the advertisement, “are taking the risk, 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, an encomium, 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, noting the prominence of the names of some of the signatories, the employees of The Times who received the copy and the order for its publication from a New York advertising agency, received it, of course, in New York, approved its publication as what is called in newspaper parlance an editorial–type advertisement. And so the 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.” These were the portions of the advertisement set forth in the complaint on 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 [*5] were. It was shown by the evidence, which I might say consisted of a very imposing record which proves to be very much less difficult than it seems, because a great part of it consists of nothing but the reproduction of newspaper stories that were published by The New York Times and which the respondents claim showed it was doing business in Alabama—but at least half of these five volumes consist of nothing but these stories. The evidence in the libel action is all in the second volume, and it doesn’t run to more than a couple of hundred pages, actually. It might be helpful if I said that it runs from page 567 to 818. The whole case on the merits is in those pages. Now, I say 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, its 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 cavils with this, but I’ll 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 thirty students who had demanded service. MR. JUSTICE STEWART: Alabama State College is entirely Negro? MR. WECHSLER: So I understand, Mr. Justice. MR. JUSTICE STEWART: And it’s in or near Montgomery, Alabama? MR. WECHSLER: It is. 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 of which he appointed the members, I believe. The minutes of that meeting showing their expulsion also appear in the record. They were proved independently by another witness by respondent. And, of course, when the expulsion took place there was a student strike in protest. That, [*6] I think, is consistent with what the paragraph says. But the statement was inaccurate in saying, as it did, that the students refused to re–register. They didn’t refuse to re–register, or at least only an infinitesimal number may have. And, more than that, the ad was wrong in stating that their dining hall was padlocked in an attempt to starve them into submission. There is no evidence that the dining hall was padlocked. The evidence is that it was not padlocked, and perforce there was no attempt to starve the students into submission. And, reverting to the first sentence, which says that “Truck–loads of police armed with shotguns and tear gas ringed the campus,” the evidence doesn’t show that the police ever ringed the campus in any 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 then it is true that after a subsequent—within a period of a few days, there was another student demonstration, this time on the campus, 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 is a controversy in the record about that. And he was arrested not seven times, to be sure, as the 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 in an indictment on two counts which did indeed carry a potential sentence of ten years if he had been convicted. He was in fact subsequently acquitted of that charge. Now, these are the essential facts about the publication that the courts below held unprotected by the First Amendment. I come now to the theory—I shall not permit myself to call it evidence—that was relied on to sustain a verdict that these statements to which I have called attention libeled this respondent. MR. JUSTICE GOLDBERG: Before you do that, may I ask you this: Dr. King’s four arrests, were they in Montgomery? MR. WECHSLER: There were four in Montgomery. There actu–[*7]ally was another one outside of Montgomery, Mr. Justice. But when I said four I meant four in Montgomery. 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. MR. JUSTICE GOLDBERG: That is what the purport of my question was. I wasn’t clear from the recitation in the briefs. This refers to southern violators. The rest could be anywhere in the South? MR. WECHSLER: Exactly. MR. JUSTICE GOLDBERG: You say he was arrested a total of five times in the South? MR. WECHSLER: He was arrested four times in Montgomery, and my recollection is that that didn’t count another arrest at Atlanta. I think perhaps it was on a perjury charge. He had been in Atlanta and was arrested there. I am reasonably confident of my recollection about the fifth. It would be easy to check. MR. CHIEF JUSTICE WARREN: Was there anything specifically in the fifth paragraph that they object to? MR. WECHSLER: No, Mr. Chief Justice. MR. CHIEF JUSTICE WARREN: The sixth? MR. WECHSLER: It is the sixth, yes. The words beginning “Again and again,” and down through the italicized words “ten years” on the eighth line. MR. JUSTICE WHITE: Mr. Wechsler, is the college within the city limits? MR. WECHSLER: I believe it is. I believe it is. MR. JUSTICE WHITE: All within the city limits. But it is a state college? MR. WECHSLER: It is a state college. MR. JUSTICE WHITE: And it is state property? MR. WECHSLER: I assume so. MR. JUSTICE WHITE: And it is state–supported? MR. WECHSLER: I know that it is a state college under the State Board of Education, with the Governor of the State the ex officio chairman of the board of trustees. [*8]MR. JUSTICE BRENNAN: May I ask, Mr. Wechsler, turning again to that sixth paragraph, is it every statement of every sentence to which the libel charge is addressed? In other words, “Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence.” Is that it? MR. WECHSLER: 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, I may 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. MR. JUSTICE BRENNAN: But as I understood you so far, in effect you have conceded there was either a misstatement or inaccuracy in the word “seven.” MR. WECHSLER: Yes. MR. JUSTICE BRENNAN: But do you otherwise? MR. WECHSLER: No, I don’t concede any inaccuracy. But I say that the record shows a contrarity of evidence on the question of whether Dr. King was assaulted. MR. JUSTICE BRENNAN: Yes. The only concession you’re making as to inaccuracy is as to the word “seven.” MR. WECHSLER: Exactly, sir. MR. JUSTICE WHITE: I suppose the ad really charges eight, doesn’t it? Seven arrests of a certain type. Now they have charged him with perjury. Does that make the eighth? MR. 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. MR. JUSTICE STEWART: I suppose that is technically inaccurate when it says perjury on one count, punishable by ten years. It takes two counts, doesn’t it? MR. WECHSLER: Yes. But I think, in order to understand Commissioner Sullivan’s position fully—and I would like to put it now as I understand it—but let me say first that he has been a commissioner, elected commissioner, of the City of Montgomery, since October 5, 1959, and he is 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 [*9] the four, as I understand the record indicates. He doesn’t supervise the police force daily in the sense that the police chief does, and there is a police chief. But the police chief reports to Sullivan and is responsible to Sullivan. So it’s simply like the relationship, in large cities, between the police commissioner and the mayor. The 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 he added that when they described police action or police activities, they were associated particularly with himself as the Commissioner who had jurisdiction over the police department. And this really is the basic claim of the respondent and 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, people in Montgomery, some of them friends of his, testified to just about that. MR. JUSTICE HARLAN: Did the police chief himself bring an action? MR. WECHSLER: No, he did not, Mr. Justice. He apparently took a different view of the appropriate response to this type of publication. MR. JUSTICE STEWART: Has the statute of limitations run out? MR. WECHSLER: I think it has, sir. Now, I think the most helpful thing that I could do next is to emphasize what the references to the police and the police activities are, and I call to the Court’s attention that there are only two allusions to police in the parts of the ad that are involved. There is the statement in the first paragraph that, “After their leaders were expelled from school, truckloads of police ringed the campus, armed with shotguns and tear gas.” The rest of that paragraph refers to state authorities; when the entire student body protested to state authorities, their dining hall was padlocked. MR. JUSTICE WHITE: Does the word “police” necessarily refer to local police? Could it be state police? MR. WECHSLER: It could be the state police. It could be. MR. JUSTICE BRENNAN: What were the facts two days later? You mentioned there were more police and a number of arrests. [*10]MR. WECHSLER: No, these were the Montgomery police who made these arrests. MR. JUSTICE BRENNAN: On this occasion, those who were there on this occasion were Montgomery police? MR. WECHSLER: Yes. MR. JUSTICE BRENNAN: You said they were stationed nearby or something like that? MR. WECHSLER: These Montgomery police, the record shows, were deployed nearby. That is correct, sir. Now, as far as the sixth paragraph is concerned—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 with the respondent. If anybody has a grievance about it, it’s the state authorities that are referred to in those words, and not the Commissioner of the City of Montgomery, or any local authority, even if this theory of reference to the individual could be accepted, which I deny. And the sixth paragraph, of course, makes no allusions to Montgomery at all, as I indicated earlier in response to Mr. Justice Goldberg’s question, and the only reference to the police is on the seven arrests, which was wrong; it should have been four. Now, we urged below, and we argue here, that such a reference as that to the police cannot be read as an allusion to the respondent, as Commissioner in charge, in the context of a 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 of what this case is about, and I wish to state his view. He says that the claim of libel was that this publication charged Commissioner Sullivan with padlocking the dining hall, with bombing Dr. King’s home, with assaulting and arresting him, with charging him with perjury, and indeed, with everything that happened except that, for some reason that I don’t quite understand, he makes an exception to 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 refer [*11] to the same people, or at least could reasonably be taken to refer to the same people, and that he did take them all to 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, caught 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 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 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 a 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 Governor of the State. MR. JUSTICE HARLAN: What is the effect of retraction under Alabama law? MR. WECHSLER: The effect of it, Mr. Justice, was to bar punitive damages, if considered adequate under the Alabama retraction statute. Governor Patterson obviously didn’t think it adequate because he sued for a million dollars after he got it. But that would be an issue in that case if it ever went to trial, as to whether he would be entitled to any punitive damages. Now, The Times didn’t apologize to the respondent, and indeed, when he wrote a demand for a retraction, The Times’ counsel replied that, as 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 him to let them 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 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 [*12] about the truth of these statements, since The Times is a large enterprise composed of many individuals, that he could say that all of the knowledge that The Times had was embodied in these reports to which I have referred, and that as he read them he considered that, except for the padlocking statement, the material was generally—the general tenor 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, I should say, as the prime basis for sustaining the punitive award. Now I come to the rulings. MR. JUSTICE HARLAN: Could I ask you a question? MR. WECHSLER: Yes, indeed, sir. MR. JUSTICE HARLAN: How many days was this advertisement published? MR. WECHSLER: One day. MR. JUSTICE HARLAN: Just one day? MR. WECHSLER: Yes, just March 29th. MR. JUSTICE HARLAN: 394 copies, you say? MR. WECHSLER: 394 copies went to Alabama, of which some 350 went to mail subscribers in Alabama, being put in the United States mails in New York, and the balance went by carrier, by mail carrier, perhaps a few even air mail, or air carrier, I mean, to news stands, news dealers, in Alabama, who simply sold them. So that I suppose you get The New York Times at a few news stands in Alabama the way you would get The Montgomery Advertiser in 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 did not protect libelous statements. Then, on the libel part of the case they ruled that these paragraphs in suit were libelous per se, testing that by the general test, whether they tended to injure reputation. And that was the ruling made by the court. No jury ever passed on whether these statements were libelous. But the trail court did submit to the jury the question of 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. As to the rest, the court told the jury that, when a statement is libelous per se, falsity and malice, and special damage—falsity [*13] and malice and general damages are presumed, that there was no need for any proof of damage by the plaintiff, actual damage by the plaintiff whatsoever, and that punitive damages were available. MR. JUSTICE GOLDBERG: Before you develop that, let me see if I understand the court’s ruling. Would there be encompassed in the court’s ruling that since this, in the language of Mr. Sullivan’s testimony, reflected upon the community as well as himself, and since the ad refers to southern violators, did the court mean that any member of the community was libeled by this? MR. WECHSLER: Well, I can’t say that the court went that far, Mr. Justice. I think that emphasis was placed on the official position of Commissioner Sullivan. 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, public groups like police, fire department, other municipal agents, praise or criticism is usually attached to the official in complete control of the body, that this is common knowledge, and, as they said, has its origin in established legal patterns. I don’t know what those legal patterns were. But in any event, this comes very close, but does not actually become, a kind of presumption, that if you talk about the police you’re talking about the commissioner. I can’t say that the New York police tap wires, for example, though I believe they do, without giving Commissioner Murphy an axe against me, since it’s illegal for them to do it without a court order in New York under the federal law. And I have got to prove truth and make my defense by proving truth, 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, worked an abridgment of the freedom of the press, were all rejected. MR. JUSTICE BRENNAN: The award is a single award? MR. WECHSLER: It is, Mr. Justice, yes. MR. JUSTICE BRENNAN: To include, I gather, both general and punitive damages? MR. WECHSLER: Yes. [*14]MR. JUSTICE BRENNAN: It is the practice, I gather, to separate the two? MR. WECHSLER: We prayed for a separation, which was denied. We 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. MR. JUSTICE BRENNAN: In any event, I gather, there was no proof of actual damages, other than as flows from the supposed presumption? MR. WECHSLER: Exactly. I would say the presumption, if there is 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 the less of him. And he was asked if he could show he was hurt in any way. In no way had he been hurt, and the record is absolutely clear on that. MR. JUSTICE HARLAN: Does the record show how long the jury was out? MR. 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. My opponent says a little over two hours. Now I come to my legal submissions. 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, what it amounts to is that a public official is entitled to recover presumed and punitive damages, subject to no legal limit in 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 and material particulars. There is no qualified privilege in Alabama, as there is in some states, as the court pointed out in Barr v. Matteo. The qualified privilege rule that 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 sense, I’ll grasp that nettle and say that, as applied to this kind of a statement, we are attacking the [*15] constitutionality of the majority rule as it appears in the black letter of libel law. MR. JUSTICE GOLDBERG: The basic assumption behind that contention, if I understand you correctly, is that a state fashioning of a common law rule may violate the Constitution. Does that underlie this facet of your argument? MR. WECHSLER: Certainly. Certainly we assume that, but I shouldn’t suppose that is controversial. That was certainly true in the Bridges case, as to contempt. And it was true in the Cantwell case as to breach of the peace. MR. JUSTICE GOLDBERG: Proceeding from that, which is an established doctrine, the second proves that the state may obviously fashion libel and slander rules under the common law without offending the First Amendment. But it is the particular rule which is fashioned under these circumstances that you assail? MR. WECHSLER: It’s this rule, as applied to officials and the criticism of official conduct which we submit is what the First Amendment to the Constitution of the United States—I would not say was 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 the Sedition Act of 1798. MR. JUSTICE BRENNAN: How far does this go, Mr. Wechsler? As long as the criticism is addressed to official conduct? MR. WECHSLER: Yes. MR. JUSTICE BRENNAN: To official conduct? Are there any limits whatever which take it outside the protection of the First Amendment? MR. WECHSLER: Well, if I take my instruction from James Madison, I would have to say that within any references that Madison made I can see no toying with limits or with exclusions. MR. JUSTICE BRENNAN: You say, then, the First Amendment gives it, in effect, an absolute privilege to criticize— MR. WECHSLER: The proposition is that the First Amendment was precisely designed to do away with seditious libel, and seditious libel was the punishment of criticism of the Government and criticism of officials. MR. JUSTICE GOLDBERG: And this applies not only to newspapers but to anybody? [*16]MR. WECHSLER: Exactly; of course. MR. JUSTICE GOLDBERG: In other words, you are not arguing here for a special rule that applies to newspapers? MR. WECHSLER: Certainly not. We are talking about the full ambit of the First Amendment. Now, I realize 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 1940, when the scope of the contempt power had never been considered by this Court. When obscenity was here, that issue had never been considered. 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 the opportunity—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 that he wrote, particularly in the report on the Virginia Resolutions, that the submission that I am making is the submission he would make. MR. JUSTICE STEWART: Your argument would be the same and would cover this situation if The New York Times or anybody else had accused this official of taking a bribe? MR. WECHSLER: Certainly. MR. JUSTICE STEWART: Or buying his office? MR. WECHSLER: Certainly. 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. MR. JUSTICE WHITE: Mr. Wechsler, we don’t have here a case of a deliberate falsehood. MR. WECHSLER: No. MR. JUSTICE WHITE: So we don’t really need to—I don’t suppose that’s really posed here. MR. WECHSLER: Oh, I think it’s posed because the constitutionality of the rule by which the case was judged, when challenged, as this was challenged, is surely in issue. But there are different points that can be made. And this brings me to my second— MR. JUSTICE WHITE: The next are narrower? MR. WECHSLER: The next are narrower, and there are two. First, I would like to emphasize what it comes to. The issue [*17] is, I think, whether a state may constitutionally, for the sake of protecting individual—I am sorry, for the sake of protecting official reputations—we’re not dealing with individual reputations here, we’re dealing with official reputations. It’s criticism of his official conduct that’s involved, not private conduct, not his private life, though I admit that that’s not an easy line to draw, since obviously private affairs do bear 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 where the criticism can be proved to be false. Now, that pitches everything— MR. JUSTICE BLACK: Now, do we assume that it is false, if the jury has found that it is? MR. WECHSLER: I don’t think you can assume it was false here— MR. JUSTICE BLACK: You mean, assume that it was not deliberate, as I understood you had something to say about that. MR. WECHSLER: Yes. But the record shows how far it was true and how far it was false, Mr. Justice. MR. JUSTICE BLACK: And the jury passed on it? MR. WECHSLER: The jury passed on it. MR. JUSTICE BLACK: And they held that it was false? MR. WECHSLER: Well, the jury actually didn’t have the issue of falsity submitted to it. 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. 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 happiest circumstances for the defendant, anyhow—but it had to be litigated in terms of whether these statements made an actionable reference to Commissioner Sullivan. MR. JUSTICE STEWART: Truth is a complete defense, is it? MR. WECHSLER: It is a complete defense in Alabama, but there is no privilege beyond that. MR. JUSTICE STEWART: Well, how about fair comment? That’s suggested— [*18]MR. WECHSLER: Only on facts truthfully stated. So under Alabama law you lose your privilege of comment, as indeed under the laws of many states, you lose your privilege of comment unless your facts are right. This, of course, is the rule of the Hallinan case that Circuit Judge Taft wrote in the nineties and which pretty well determined the black letter law on this point, and the Restatement in the books. MR. JUSTICE STEWART: But truth is a complete defense? MR. WECHSLER: It is a complete defense. MR. JUSTICE STEWART: And it has to be specially pleaded? MR. WECHSLER: And it has to meet the charge. It must be as broad as the charge. MR. JUSTICE STEWART: Well then, in short, and putting it bluntly, the reason you couldn’t plead that defense is that some of these statements were not true. MR. WECHSLER: But beyond that—and the point I’m trying to make, Mr. Justice Stewart—is that the plaintiff was contending that the statement 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 conceived that anybody in the world in his right mind could read this to say that Sullivan bombed his home. That was the difficulty. MR. JUSTICE BRENNAN: To the extent to which the jury passed on anything, the jury finding, I take it, was this meant that Sullivan bombed King’s home? MR. WECHSLER: I don’t know, Mr. Justice. MR. JUSTICE BRENNAN: Well, wasn’t that issue of the identification— MR. WECHSLER: We don’t know what the jury thought 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? MR. JUSTICE BRENNAN: What was the actual submission to them? On the premise that if they found that any one of these statements, which on its face was libelous under that rule, referred to Sullivan, they could bring in a verdict against The Times? MR. WECHSLER: This issue was not clarified by the charge. The charge was, you must consider whether the statements refer to—you must be satisfied that the statements refer to Commissioner [*19] Sullivan, without referring to which statements, or whether any of the statements would be enough. I think that leaves us in the position where there was—we have basis for grievance, really, if any of the statements are not enough. I think it is a stronger case. MR. JUSTICE WHITE: Was the jury also free to believe that all of these statements were false? MR. WECHSLER: It was free, except that the evidence didn’t support such a view. MR. JUSTICE WHITE: Was there no submission on this matter at all? No submission on the matter at all? The jury wasn’t instructed? MR. WECHSLER: No. We asked for a directed verdict, of course. And our main grievance was that a directed verdict was denied. MR. JUSTICE GOLDBERG: Mr. Wechsler, your basic position, if I understand it correctly, is that under the First and Fourteenth Amendments, no public official can sue for libel constitutionally and get a verdict with respect to any type of false or malicious statement made concerning his conduct, his official conduct? MR. WECHSLER: That is the broadest statement that I make. But I wish in my remaining time to indicate what the lesser submissions are, because there are many that I think must produce a reversal in this case. And I make that submission because of the impact on me of Madison’s report and other historic material about the First Amendment as applied to criticism of officials. MR. JUSTICE GOLDBERG: So, to follow this through, it is a logical conclusion that a citizen would have the right under that broad proposition to state falsely, knowingly and maliciously that his mayor, his governor, had accepted a bribe of one million dollars to commit an official act, and a citizen could not—the mayor could not sue for libel? MR. WECHSLER: That’s right. What he would have to do is 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 a different sense, in a common sense, the 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 as it then was had been enforced, we would never have had a Republic. That has been a point throughout the history of law, that these provisions are not enforced, and these actions are not [*20] brought. It’s only when you encounter a monolithic situation of the sort that we encountered in Montgomery that there is any profit in bringing the actions. But my further points are these: First, that even if I am wrong, you have then a situation here where law should surely attempt an accommodation of conflicting interests, the interests in protecting official reputation and the interests in freedom of discussion. But there is no accommodation here. The qualified privilege rule is one way to work out an accommodation. Judge Clark in the old Sweeney case suggested limiting the action to proof of damage. In Massachusetts there are no punitive damages, and so on. There are all sorts of accommodating via media that are possible but are rejected by Alabama here. And then thirdly, on this point, we have of course the submission—and we think this 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 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 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 rights. MR. JUSTICE HARLAN: Are we entitled to review the evidence here, short of finding that there was no evidence on the Thompson against Louisville— MR. WECHSLER: Yes, I think very definitely, Mr. Justice. I’m not making—we have the Thompson argument. But I think Norris and Alabama—we brought the cases together at the beginning of the second point in the brief—made perfectly clear that this Court—Bridges and California is 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 untenable. Discrimination, coercion in a confessions case, and here that fact is the 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? MR. JUSTICE GOLDBERG: You are saying that the state fact–[*21]finding cannot relieve us of our function of determining whether the constitutional right was abridged? MR. WECHSLER: Certainly. And, as a matter of fact, I thought, Mr. Justice Harlan, that in your own opinion in one of the outstanding cases where you talked about individualized judgment in individual cases, you were making precisely this point in what seems to me an analogous context. MR. JUSTICE BRENNAN: May I ask, in any one of these three arguments, is the size of the award peculiarly important? MR. WECHSLER: The size of the award is part of our argument on the evidence, exactly. 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. MR. JUSTICE BRENNAN: What I really meant was, I take it one of the things that you think really trespasses upon the First Amendment rights, apart from everything else, is the extent to which this practice leaves the jury completely at large in arriving at an award. Now, my point was, whether that argument is addressed to any of these three special grounds or all of them. Or is it an independent argument? MR. WECHSLER: It is 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 award. But certainly there wasn’t any evidence for a half a million dollar award. And it is the half million dollar 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 is a separate submission on the jurisdictional point. I must submit that on the brief. MR. JUSTICE WHITE: Mr. Wechsler, what is the fact in the record about whether The Times knew these statements were true or false? MR. 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. MR. JUSTICE WHITE: Then if you accept the Supreme Court of Alabama’s version, we must deal with your broader first ground? [*22]MR. WECHSLER: Yes. MR. JUSTICE WHITE: And if we are obliged— MR. WECHSLER: But you have to accept the Supreme Court of Alabama’s version also, Mr. Justice, on the “of and concerning” point, in order to get to the broad ground, actually, if you start with the narrow ground and work to the 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. MR. JUSTICE BLACK: Then that latter point depends on whether there was evidence—whether the evidence that Sullivan was the Police Commissioner and had charge of the police, was responsible for their actions, is enough to justify a jury in finding that the charge that the police acted in a terribly bad manner, as indicated, the jury couldn’t find that that was a charge against Sullivan? MR. WECHSLER: In this case, on this statement, I most vigorously submit that the answer to that question is that they could not. MR. JUSTICE BLACK: Why? MR. WECHSLER: The reason why they could not is because the record shows there were 175 policemen, that there was a police chief in addition to the Commissioner, and there is not the slightest bit of 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. MR. JUSTICE BLACK: Wouldn’t the jury have the right to determine that if the police of a city, who were armed with shotguns and tear gas bombs, go around and throw their weight around with all that, and it’s shown that the chief of police, the man acted as chief of police, the Commissioner, wouldn’t that be enough for a judge or jury reasonably to find that the head of the department was responsible for it, particularly if it’s charged to be a continuing thing? MR. WECHSLER: Well, it isn’t charged to be a continuing thing in Montgomery, Alabama, in this document. There are two statements about the police, and only two. And ringing the campus was practically true. MR. JUSTICE CLARK: How about the one, arrested seven times? MR. WECHSLER: I, in stating the case, Mr. Justice, accepted, for purposes of argument, Commissioner Sullivan’s statement [*23] that when you talk about arrests, you’re talking about police. But obviously, it is not explicitly put that the police arrested him. I assume police do make arrests, and that’s all right. MR. JUSTICE CLARK: That is paragraph six? MR. WECHSLER: That is paragraph six. MR. JUSTICE CLARK: Each charge was apparently an individual citizen doing this? MR. WECHSLER: Yes. MR. JUSTICE CLARK: This one said, “They arrested him.” An individual, I suppose, couldn’t arrest him. Could they make arrests? MR. WECHSLER: There are citizen’s arrests, certainly. But I accept the proposition that that sentence can reasonably be taken as a reference to police action. I don’t accept the proposition that they had arrested him, that the “they” who may have arrested him is the same as the “they” who bombed his home. Obviously, this was a recitation of all the grievances that this man has. MR. JUSTICE CLARK: Four of those were made in this particular town? MR. WECHSLER: Yes, in Montgomery. Of course, the ad doesn’t say they were made in Montgomery. But in fact they were made in Montgomery. MR. JUSTICE CLARK: Where does Dr. King live? MR. WECHSLER: Well, he at one time lived in Montgomery, as I understand it, but he left, and moved to Atlanta. MR. JUSTICE CLARK: At this time he lived in Atlanta? MR. WECHSLER: At the time of this publication he lived in Atlanta. Atlanta was his home, yes. MR. JUSTICE CLARK: At the time of his arrest he lived in Montgomery? MR. 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 after he left, and it could be that the record isn’t certain about that, sir. MR. JUSTICE BLACK: Do you think that the court and jury would treat these separately? Suppose the document as a whole showed it was intended to be charged, either by innuendo, insinuation, or direct express statement, that the police department had [*24] joined with a bunch of bad people to permit what I would call the offenses that are charged here. Would you say that if it’s by insinuation and innuendo, it would not be equally chargeable if you are wrong on your first big broad ground? MR. WECHSLER: I think that’s a question of whether the innuendo is proved. And the first thing 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 the way that the innuendo charges. I believe this is the 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 to respondent are references to police; that that’s too large a group in the setting 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. MR. JUSTICE BLACK: What difference would it make if he was one of the group, and there are 175 or 200? Do you accept Beauharnais? MR. 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 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 the state court finding of danger of violence, which is an important public end and which is not involved in this situation at all. The 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 that he’d have 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 was. MR. JUSTICE WHITE: Mr. Wechsler, was there an issue made out in the instructions or for the jury to decide about the knowledge of The Times as to the accuracy of these statements in regard to punitive damages? MR. WECHSLER: Yes. [*25]MR. JUSTICE WHITE: So the jury was supposed to decide that one way or another? MR. 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. The essence of the charge, 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, the 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 will, 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. That, I think, is as close as we come to this, Mr. Justice. That request was made and denied. And there is no equivalent of that instruction in the charge that was actually given. MR. JUSTICE WHITE: No definition of punitive damages? MR. WECHSLER: No. Well, yes, punitive damages are given to deter the offender and to deter others. But no indication of the— MR. JUSTICE WHITE: Of the relevance of knowledge? MR. WECHSLER: Exactly. No indication that the jury had to find malice in fact, as libel lawyers talk about malice, in order to justify a punitive award. That is not in the charge. MR. JUSTICE WHITE: The way the case was tried, it was irrelevant whether they knew it or not? And in the submission to the jury? MR. 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 request, 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 of and concerning Sullivan. That was the main contour of the trial. MR. JUSTICE GOLDBERG: You don’t argue at law that punitive damages are unconstitutional in that they impose a penalty in a civil proceeding without the burden of proof and safeguards surrounding the criminal proceedings, and because the purpose of punitive damages is, as you have said, to punish; you don’t argue that? [*26]MR. WECHSLER: No, we have not made that point, Mr. Justice. ROLAND NACHMAN, JR., ESQ., ON BEHALF OF THE RESPONDENT MR. NACHMAN: May it please the Court: I would like to address myself at the outset to what I consider to be a sharp difference between Mr. Wechsler’s analysis of the facts and the facts as I see them. 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 a new trial, after it has been before the highest 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, that we are 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. MR. JUSTICE GOLDBERG: I don’t want to disturb you, but you made a rather provocative statement I would like to ask you about. You said a jury trial in terms of the Seventh Amendment. MR. NACHMAN: Yes, sir. MR. JUSTICE GOLDBERG: Is it your idea the Seventh Amendment applies to the states by the Fourteenth? Is that part of your argument? MR. NACHMAN: CB & Q v. Chicago, which we have cited in our brief, Your Honor, and many other cases, say the protections of the Seventh Amendment which surround the re–examination 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 [*27] 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 a demurrer, The Times filed six separate pleas to the complaint. Not one of these 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, plea 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, cites statutes as well as judicial decisions, on the theory that the law in 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 have 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 ten 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, suggestions in the presence of the jury, if it please the Court, that this ad was false. An example, if I may be indulged in reading: Isn’t it a matter of common knowledge in and around Montgomery that what we have been reading from this ad is not true? This was to a witness, 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. Kaminski? Answer: No, I didn’t think Commissioner Sullivan would do that. That’s at page 638 of the record. [*28]Another example, to another witness: You didn’t believe that it was true, did you? Answer: I knew it wasn’t true. Another question to the same witness: You never thought it was true or had any idea it was true? MR. JUSTICE GOLDBERG: What are you talking about now? What was true? MR. NACHMAN: I’m addressing myself to Mr. Wechsler’s argument that this ad is inaccurate in certain particulars, Your Honor. MR. JUSTICE GOLDBERG: Let me ask you this. I don’t know what references you are making, but if the witness were asked, “Would you believe it true that Mr. Sullivan bombed Mr. King’s home?” I assume the answer would be, “No, I would not believe it is true.” Is that the type of questioning you have reference to? MR. NACHMAN: No, sir. The type of question I have reference to is whether the ad, the words in the ad—I’m addressing myself to Mr. Wechsler’s contention, as I understood it, sir, that this was only incorrect in some particulars. 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 there was no attempt made at the trial by The Times to say that any of this was true. MR. JUSTICE GOLDBERG: I looked over the record, and I thought there was evidence at the trial which showed the truth in part of some of the allegations of the ad. There were some inaccuracies, as I read the record, in the ad, and it’s correct there was no attempt to show that Mr. Sullivan bombed the home, et cetera. But I didn’t read the record to do what you now are saying, in saying that the ad at large and every sentence of it was totally and completely false. Are you arguing to us the case went to the jury on the posture that this ad was from beginning to end totally false? MR. NACHMAN: Yes, sir. MR. JUSTICE GOLDBERG: You are? MR. NACHMAN: I am not saying that there was no attempt made by The Times to justify it. As a matter of fact, as Mr. Wechsler here pointed out, Mr. Bancroft, the Secretary of the corporation, who was there at the counsel table throughout the trial, on [*29] cross–examination stated that he thought it was substantially correct, with the exception of the padlocking statement. What I am saying, sir, is that there was evidence from The Times itself, from its pleadings, from statements of its 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 am saying that there is evidence in the record that the entire ad was false. MR. JUSTICE STEWART: By “the entire ad” you mean paragraphs three and six? MR. NACHMAN: Excuse me. Yes, sir, the two paragraphs we complained of, Mr. Justice Stewart. The second paragraph and the sixth, I believe. I didn’t mean to address— MR. JUSTICE BRENNAN: I don’t follow all these references to the statements of The Times’ counsel. Are you suggesting that whatever he may have said, whatever you want to put on it in the way of interpretation, that this was evidence for the jury to consider? MR. NACHMAN: Yes, sir. He brought out questions from these witnesses that this isn’t true, and the witness said, “No, it isn’t,” and this went to the jury. 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 it, as indeed with Mr. Bancroft’s statement. What we say is, here is evidence which went to a jury on complete falsity, not just partial falsity. MR. JUSTICE BRENNAN: May we re–examine that? MR. NACHMAN: We say no, sir, unless there is no basis whatever, it’s devoid of reason—the Thompson test. MR. JUSTICE WHITE: You mean re–examine the facts? MR. NACHMAN: Correct, sir. In other words, we say that the Seventh Amendment protects this verdict unless this Court finds there’s no reasonable basis whatever for it, no evidence at all to support it. Thompson versus Louisville— MR. JUSTICE BRENNAN: The Seventh Amendment? MR. NACHMAN: Yes, sir, the Seventh Amendment. MR. JUSTICE BRENNAN: A state trial? [*30]MR. NACHMAN: A state trial—the jury verdict re–examined otherwise in accordance with the rules of common law, which, as we understand the decisions of this Court, protects state verdicts as well as federal verdicts. MR. JUSTICE WHITE: I suppose if it’s your assertion—which I gather it is—that libel falls outside the protection of the First Amendment, that someone has to finally decide what libel is that falls outside the protection of the First Amendment? MR. NACHMAN: Yes, sir. MR. JUSTICE WHITE: The jury isn’t the final answer on that, I suppose? MR. NACHMAN: You mean the characterization of the ad as libelous? Your Honor, that was a question that the court decided, but there we say that that is a question of state law. MR. JUSTICE BRENNAN: That we can’t re–examine here as a constitutional question? MR. NACHMAN: Your Honor, I would answer that in two ways. Up to now, as we read the cases, the Court has left the characterization of publications as libelous or not libelous to the states. Now, we would certainly concede that if a statement was made that somebody had blond hair and a state court held that this statement was libelous per se, well, of course this Court could review it. But, adverting 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 libel. It charges them with criminal offenses, charges which would certainly hold them up to contempt and ridicule and disapproval, and we think we’re well within the classic definition of libel. We don’t say, sir, in no circumstances could this Court review a state characterization. MR. JUSTICE DOUGLAS: I read in the charge to the jury that they were not given the issue of truth or falsity, because the judge charged, at the bottom of page 823, that this is libelous per se, and then on page 824 he says libelous per se carries the presumption of falsity and knowledge. And later on down he says, so, in a case of the kind that we have here, where the court charges you that this is libelous matter, that this libelous matter is libelous per se, falsity and malice are presumed. MR. NACHMAN: Yes, sir. That’s a prima facie presumption. This is not an absolute presumption. In other words, if a case is libelous per se, that’s enough to get the plaintiff to the jury. This [*31] 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 submit that this is what the court had in mind. It’s a prima facie presumption under Alabama law, 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 from the Governor of Alabama. It refused 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 of Dr. King for speeding and loitering and the bombing and the fact that he was under indictment for perjury, a charge 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. 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, 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 plead 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. MR. JUSTICE STEWART: You said, as I understood you, that the retraction which The Times made at the request of Governor Patterson admitted that the whole ad was false. Did you say that? MR. NACHMAN: Yes, sir. It said errors and misstatements, and there was nothing in the ad, Your Honor, even suggesting, as we recall it, that there was any truth in the ad. MR. JUSTICE GOLDBERG: They didn’t go that far, as I read [*32] the retraction. I am reading from page twenty of the brief of the petitioner, and that doesn’t say that. It says: ...herewith retracts the two paragraphs complained of by the Governor. The New York Times never intended to suggest by the publication of the advertisement that the Honorable John Patterson was guilty of grave misconduct or improper actions and omission. To the extent that anyone can fairly conclude from the statements in the advertisement that any such charge was made, The New York Times hereby apologizes to the Honorable John Patterson therefor. Is that the statement you have reference to? MR. NACHMAN: Yes, sir. MR. JUSTICE GOLDBERG: That does not go as far as you said. MR. NACHMAN: We read that, Your Honor, and the qualification there as a question of reference, not the underlying statements in the ad. We say that 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. That was the basis for my statement that there’s no attempt made 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. MR. JUSTICE GOLDBERG: But you can’t infer from this that it said it was false. MR. NACHMAN: The errors and misstatements, Your Honor, I think are different ways of saying that it’s false. MR. JUSTICE GOLDBERG: What they merely say, as I read it—unless I read it improperly, Mr. Counsel—is, with respect to this ad, they never intended to impute misconduct to Governor Patterson. MR. JUSTICE BRENNAN: What page is this? MR. JUSTICE GOLDBERG: Page twenty of the brief for the petitioner. MR. JUSTICE BRENNAN: Of September 9? MR. JUSTICE STEWART: Filed September 6. MR. NACHMAN: If I might, sir, could I call your attention to page 596 of the record, about midway down. It is just before Folio 1715: [*33]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 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. On the matter of association, we certainly feel that— MR. JUSTICE GOLDBERG: I don’t want to keep you from pursuing this, but then there was testimony, as I read the record, with respect to this retraction by Mr. Bancroft. MR. NACHMAN: That’s right, sir. MR. JUSTICE GOLDBERG: And he explained, I take it, the circumstances of the retraction, in which he, as I remember it, said that by reason of the Governor’s high position it was not intended to cast any reflection upon him. Isn’t that correct? MR. NACHMAN: That’s what he said first before cross–examination, but then he said— MR. JUSTICE GOLDBERG: What did he say on cross–examination? MR. NACHMAN: On cross–examination he was asked whether the Governor and this plaintiff were not on a par: They are put on a par, aren’t they, Governor Patterson and this plaintiff? That 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’s correct, isn’t it? Answer: That’s correct. MR. JUSTICE GOLDBERG: Wasn’t that explained on Mr. Bancroft’s testimony, that he believed that the language with respect to the state authorities might refer to the Governor, but he didn’t think any of the language referred to Mr. Sullivan? [*34]MR. NACHMAN: That was the first thing he said, Your Honor, but then he said that they were on a par in this record, and that there was no—I assume the jury 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. MR. JUSTICE GOLDBERG: Would you, referring to the paragraph, state to us—take paragraph three; what in that paragraph refers to Mr. Sullivan and what does not refer to Mr. Sullivan, in your opinion? MR. NACHMAN: In my opinion, everything except the academic discipline of expulsion from school refers to Mr. Sullivan. We think it can reasonably be read, in fact irresistibly be read, as describing “police action” resulting from the “singing of My Country ‘Tis of Thee from the capitol steps,” and Mr. Sullivan conceded at the trial, of course, that he had no academic disciplinary function, and that this expulsion, of course, does not refer to it. MR. JUSTICE GOLDBERG: You include the padlocking of the dining room as referring to the police official? MR. NACHMAN: Yes, sir. It’s a clear sort of police action, especially in view of the earlier reference to police in there. MR. JUSTICE GOLDBERG: What about this? Read the whole sentence: “when the entire student body protested to state authorities.” Do you get an implication from that that something was done by the state authorities? MR. NACHMAN: Your Honor, municipal authorities can reasonably be construed by a jury to be state authorities, too. They’re police authorities within a state. We don’t say that a reasonable argument can’t be made that state authorities in certain contexts doesn’t mean police. But again, sir, I return to the context. This is a question of whether a jury could reasonably make a connotation—and we say certainly that police authorities in a state can 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 is in charge of the police. MR. JUSTICE GOLDBERG: Why don’t you say that about the expulsion from school? I presume the police authority could expel them from school. MR. NACHMAN: We simply don’t because the respondent conceded at the trial that he had no jurisdiction in that regard and made no contention whatever at the trial that that particular statement referred to him. [*35]MR. JUSTICE GOLDBERG: Does he have jurisdiction to padlock the school? MR. NACHMAN: He would in certain circumstances where peace and order were threatened, I am sure he would. MR. JUSTICE GOLDBERG: Would you refer to paragraph six and point out there what you think referred to Mr. Sullivan, please? MR. NACHMAN: Your Honor, in paragraph six, we would like to advert to an observation which Justice Clark made, and which was, I thought, was rather notably underplayed in Mr. Wechsler’s argument—the repeated use of the word “they.” Here I am not simply relying on my analysis or a hypothetical analysis. I asked on cross–examination a witness for The Times, Mr. Aaronson, whether the “they” as used repeatedly in this paragraph referred 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 is our contention that an ordinary reader of normal intelligence knows that the people who arrest for loitering and speeding are the municipal police. There is no attempt made in this paragraph to differentiate in any manner the “they” who arrest for loitering and speeding from the “they” who bombed and the “they” who assaulted and the “they” who indicted for murder. We don’t say that this is an irresistible connotation in all contexts. We not only say it is a reasonable one, but that it was indeed made by The Times’ own witness, Mr. Aaronson, who had had more than twenty years’ experience in a screening process of this kind of editorial–type ad, as The Times describes it. MR. JUSTICE GOLDBERG: I’d like to ask what I asked Mr. Wechsler. Since the advertisement as a whole refers to southern violators, and since your client testified that the community itself was libeled, since there are many, many law–abiding citizens in the South as well as some who are not law–abiding, as in all sections of the country, what would prevent, under your theory of the case, any citizen in the South saying that, “I am libeled by this ad of The Times,” and by innuendo then to allege and go to the jury on the assumption that, I am a southern citizen, this refers to southern violators, the “they” means that I bombed, that I did all these things? MR. NACHMAN: The thing that would prevent it in Alabama, Your Honor, is Alabama jurisprudence, which requires— MR. JUSTICE GOLDBERG: What in Alabama jurisprudence? [*36]MR. NACHMAN: —which requires that a group be sufficiently small 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 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 member of the community with no other identification as a plaintiff in a lawsuit. MR. JUSTICE GOLDBERG: Would Alabama law prevent a suit for libel if an ad were published which said every citizen of Birmingham is a thief and scoundrel and a crook? MR. NACHMAN: I think it would. MR. JUSTICE GOLDBERG: You couldn’t sue as a citizen of Birmingham? MR. NACHMAN: The cases which the Supreme Court of Alabama has cited repeatedly in these matters, as we construe them, require, as we submit most states do, that where you have this area of group libel, the group has to have a bound—and, in Alabama, reasonably small bounds—in the context of your question, Your Honor. I think a member of the community could not. But I don’t think we have that question in this case. I think that the association is certainly clear enough. We think it’s very clear, but certainly it’s clear enough to warrant a jury finding that the charges of this sort about terrible 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 it sufficient unto the day if this matter arises, but I don’t think it would arise in Alabama because of the court’s restrictions in this matter. MR. JUSTICE GOLDBERG: Within your Alabama law the police commissioner is one of the commissioners of the city. Can any public official involved in a command position in the police department sue under your theory of the case? MR. NACHMAN: The question was asked earlier about the police chief. I would say that he could, yes, sir, although I do say that an elected official, such as a commissioner, has a larger notoriety and identification. I think that when something goes wrong in a massive sort of way like this, that people think of the mayor and the council. They’re the ones who are supposed to run the city, and when something like this happens, they are the ones that people think of, and especially at election time and that sort of thing. But I would think that the police commissioner could. In answer to an earlier question, I would reaffirm what Mr. Wechsler said. The statute of limitations has run. It’s one year in [*37] Alabama, and there has been no suit by the police commissioner. MR. JUSTICE HARLAN: Is there any evidence to prove special damages? MR. NACHMAN: To this extent, Your Honor. One of the witnesses testified that he was a former employer of Mr. Sullivan. Mr. Sullivan, as the record shows, had formerly been in the Public Service Commission of Alaska, in the transportation safety field, and after he left there and before he was elected Commissioner he had worked for a truck line 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 re–employ Mr. Sullivan. We think that this kind of thing certainly enabled the jury to find that in the future, long after this man could come back into court and ask the jury to give him some special damages, that he might be damaged specially in this regard. But in the sense of showing any actual out–of–pocket loss of money at that time, no, sir, there was no showing of that. But we submit that the jury could fairly take into account future losses of earnings of that sort if the occasion arose, and of course we also— I don’t know to what extent Your Honor would refer to what we call general damages, that is, damages for injury to reputation, for hurt feelings, for 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. I would like to remind the Court that under Alabama law there is a very broad retraction statute. I understand from, I believe it’s Mr. Chafee’s article, which we have cited in our brief, that Alabama and Virginia were two of the earliest states which enacted these retraction statutes, and that a defendant in Alabama can eliminate entirely special and general damages, as I have described them, 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, if The Times had done for this plaintiff what it did for Governor Patterson, it would not be in the situation in which it finds itself today. MR. JUSTICE BRENNAN: You say the retraction takes out of the case special and general damages? MR. NACHMAN: Yes, sir. MR. JUSTICE BRENNAN: But leaves the punitive, is that it? MR. NACHMAN: Excuse me. I beg your pardon. It takes out punitive and general and leaves in special. I am glad you corrected [*38] me on that. We have cited the statute on page 68 of our brief. It is Title VII, Section 915, and makes actual damages only recoverable where there has been a retraction. We submit that this, plus the Alabama defense of fair comment, plus the absolute defense of truth in Alabama, are means which Alabama, within 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 the freedom of the press and freedom of speech. MR. CHIEF JUSTICE WARREN: Do you happen to know how many states have that retraction statute now? MR. NACHMAN: No, sir, Mr. Chief Justice, I do not. I believe there are a good many, sir, but I couldn’t say exactly how many. MR. JUSTICE GOLDBERG: I would like to refer to your retraction point of view. Would you look at the ad again. Suppose the ad in paragraph three had merely said, the police were called to the campus; the leaders were expelled from school and the police were called to the campus, police armed with shotguns and tear gas, and ringed the campus, which I understand is correct. Police were called to the campus. Do you deny that? MR. NACHMAN: Your Honor, there are two reports. Mr. Wechsler talked about one of them. The first report, the report from McKee, 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, which said at one time they were deployed in large numbers. MR. JUSTICE GOLDBERG: Let us assume the ad was written in that way and in all other respects remained the same. Would you regard your client to have been similarly libeled and calling for a retraction in the terms that you have just described? MR. NACHMAN: May I be sure I understand the question correctly? MR. JUSTICE GOLDBERG: In other words, the ad remains exactly as it is, but instead of saying that truckloads of police armed with shotguns and tear gas ringed the Alabama State College campus, suppose it said in place of that language that police were called to the campus, and everything else remained the same. MR. NACHMAN: I certainly would contend that a retraction was in order, Your Honor. I think that a great deal more of the ad than that one sentence applied to this plaintiff. MR. JUSTICE GOLDBERG: Putting that sentence aside, where [*39] do you find that anything else applies to your plaintiff? Putting that aside, if that is not the linkage, where are the allegations relating to your plaintiff that you could make by innuendo? MR. NACHMAN: The first paragraph; the third paragraph. The first one that we complain about, other than the unprecedented wave of terror in the preamble—we think that the padlocking does refer to the police. MR. JUSTICE GOLDBERG: You would say that when police were called to the campus the padlocking then referred to the police? MR. NACHMAN: That’s right, sir. MR. JUSTICE GOLDBERG: What else? MR. NACHMAN: Then in the other paragraph, as I have stated, the repeated use of the word “they”; Mr. Aaronson’s testimony that the “they” refers to the same people who arrest for loitering and speeding—that’s the police—the same people who did that either participated in or condoned the bombing and the rest of it. MR. JUSTICE GOLDBERG: Let me ask you this: Assuming the reference to truckloads of police armed with shotguns is eliminated from the ad and there was no reference to that, what would your position be then? MR. NACHMAN: That was the question I attempted to answer before. I still think that the— MR. JUSTICE GOLDBERG: No, it wasn’t, because in the hypothetical I said police were called to the campus. I am now giving you a different hypothetical. I am giving you one that eliminates that entirely and the ad remains otherwise the same. MR. NACHMAN: I would take the same position, Your Honor, and I would be in accordance with Mr. Aaronson of The Times. MR. JUSTICE GOLDBERG: You would take the position your client is still libeled? MR. NACHMAN: Yes, sir, I would. Not as much, possibly, but certainly he is libeled, and certainly the reference, we submit, is clear enough for a jury to find, especially when there is testimony from the defendant’s own witness that the association was made through the repeated use of the word “they.” MR. JUSTICE GOLDBERG: Even though “police” is not referred to anywhere? MR. NACHMAN: Well, “police action,” we submit, is clearly [*40] described, and we don’t think, Your Honor, that you’ve got to say the police arrest in order to contend that “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 arrests are made by the police. An argument can be made that private persons arrest, but this doesn’t mean that a jury as a matter of constitutional law has to find that arrests in that context doesn’t relate to police. On the question of malice and deliberateness, 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 the inconsistent treatment 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 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 call them—that booklet is in evidence— MR. JUSTICE WHITE: I gather that under the Alabama law it’s the same as knowing the statement is false at the outset if you refuse to retract after you know it is false. MR. NACHMAN: Yes, sir. MR. JUSTICE WHITE: And the jury was given to understand that? MR. NACHMAN: Yes, sir. And, beyond that, the jury had before it a deliberate failure of The New York Times personnel, of people who were put on the stand, who were brought down there and put on the stand by the defendant, two of its three witnesses— MR. JUSTICE WHITE: So you are saying this case unavoidably presents the question of whether or not a person may tell a deliberate lie about a public official. Is that the issue? MR. NACHMAN: No, sir, that is not the issue. MR. JUSTICE WHITE: Doesn’t it present that question under the First Amendment, whether you may publish a deliberate lie— MR. NACHMAN: Yes, Your Honor. MR. JUSTICE WHITE: —about a public official? MR. NACHMAN: 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 answer [*41] to one, I believe, of Mr. Justice Stewart’s questions, as I understand their contention and as I understand what they said it to be, if a newspaper charges, say, a mayor or police commissioner with taking a bribe, that there is absolute immunity against a libel suit in that regard. And we think that’s something brand new in our jurisprudence. We think that it would have a devastating effect on this nation. MR. JUSTICE WHITE: But if it were held here that a newspaper could publish a falsehood which it thought to be true, that would still not save The Times here? MR. NACHMAN: You mean a reasonable belief in truth? MR. JUSTICE WHITE: Yes. MR. NACHMAN: No, sir, not under Alabama law. It would have to be true. MR. JUSTICE WHITE: But on the facts of this case you say they knew it was false or essentially false? MR. NACHMAN: 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 inability to look at facts at the beginning before publication, which could be the equivalent of intent. MR. JUSTICE STEWART: Don’t you also say that the failure to retract after learning of the falsehood— MR. NACHMAN: Later, after knowledge came. But I say even before that they have, as I was going to say, these advertising acceptability standards. They’re supposed to screen these ads under newspaper procedure, not under Alabama law, but under the procedure 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 muster under the libel laws, among other tests. The first man said he scanned it hurriedly —this is Mr. Aaronson—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 man who is in charge of the department, Mr. Redding, who was 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 signers of the ad. The Times specified in answers to interrogatories 16 separate news articles which related to the subject matter purportedly des–[*42]cribed 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 sent on for publication. And so at that stage we say there was a recklessness that was the legal 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 and sent it in and paid almost 5,000 dollars to have it published as 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 this Court and no other court has ever made a distinction between libel of public officials and libel of private persons. Public officials, as this Court pointed out in Pennekamp, have a right to sue for libel when they have been defamed. MR. JUSTICE WHITE: Where in the record is there any way of finding out what the jury found about the question of knowledge of falseness, or any other Alabama court about the question of knowledge? MR. NACHMAN: Your Honor, under Alabama practice a jury has a right to bring back a general verdict, as distinguished from the federal practice. The Times, and I think the individual defendants, asked for special verdicts, but the court—we’ve cited several Alabama verdicts in our brief that say that under Alabama practice a jury has a right to bring back a general verdict, and there is no special verdict in this case and I know of no way to determine what they deliberated on. MR. JUSTICE WHITE: Did the Alabama Supreme Court feel it was necessary to sustain the verdict to announce its own conclusions about whether The Times was guilty of malice? MR. NACHMAN: Yes, sir. The Alabama Supreme Court made a specific finding that there was evidence in the record from which malice could be found. MR. JUSTICE WHITE: Did they find it? MR. NACHMAN: Yes, sir, they found it. They found that the matter involving Mr. Bancroft—and I am reading from 273 Alabama 686: “On the other hand, during his testimony it was the contention”—the Court had mentioned this retraction that we discussed— [*43]. . . 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 but have 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. MR. JUSTICE BLACK: Did the plaintiff ask for a charge? MR. NACHMAN: The plaintiff asked for no charge. MR. JUSTICE BLACK: Any charge at all? MR. NACHMAN: No, sir. MR. JUSTICE BLACK: Could the plaintiff have asked for a charge that “We the jury find all the issues in favor of the plaintiff”? MR. NACHMAN: I don’t believe that would be permissible. MR. JUSTICE BLACK: Is that normal practice? MR. NACHMAN: I don’t believe that would be permissible, sir. Plaintiff could have asked for a directed verdict. MR. JUSTICE BLACK: Is it normally the practice that, if the plaintiff did not want to take the risk of a general verdict with reference to some of the issues, he could have asked the court to charge the jury, “We the jury find all of the issues in favor of the plaintiff,” and under those circumstances it would have foreclosed all issues, where a general verdict might not? Has that rule been abandoned? MR. NACHMAN: I don’t know, sir. I am not prepared to say. I have never done it, and I have never seen it done. MR. JUSTICE BLACK: It was formerly the practice. I know from experience. MR. NACHMAN: But in this case there was no requested charge from the judge to the jury. In this connection, we would like to point out again, in answer to some of Mr. Justice White’s questions to Mr. Wechsler with regard to the charges, that there were very precise exceptions made to the oral charge by the defendant [*44] New York Times, and none of them related to any of these matters. We submit that certainly at this stage The New York Times could not contend that there is any deficiency in the oral charge which the judge gave to the jury. Indeed, he makes no such argument in its brief and in this Court. MR. JUSTICE BRENNAN: Incidentally, if you hadn’t asked for 500,000 dollars but for five million, and the jury had come in with five million, I take it on this record you would still be entitled to it? MR. NACHMAN: Your Honor, on that, as we have argued in our brief, as we understood the cases of this Court, it has not heretofore gone into the question of the excessiveness or inadequacy of damages. MR. JUSTICE BLACK: You mean on the basis of the constitutional level. MR. NACHMAN: Yes, sir, under the Seventh Amendment. The C, B & Q case which I cited earlier was a case in which one dollar was brought back in a condemnation case, a railroad. This Court held that it would not go into the question of the adequacy of that award. MR. JUSTICE GOLDBERG: Would that case square with our holding in Haynes, where we said this Court could examine into the facts where federal constitutional rights are involved, even where there is a jury verdict? There is an expression in the case you cite, but I would like to venture to suggest that perhaps that case of rather ancient vintage doesn’t still hold. MR. NACHMAN: The latest case on this question of damages that I know of is Neese against the Southern Railway, where this Court expressly refused or declined to go into this question. MR. JUSTICE GOLDBERG: I am challenging the breadth of your statement. MR. NACHMAN: I was going to say, Your Honor, that we will concede that at some point you get into a question of whether there is any evidence at all, the Thompson against Louisville test, so to speak. MR. JUSTICE BRENNAN: Why 500,000, but not five million? I don’t follow. MR. NACHMAN: Well, we think that if this Court went into the question at all, as we submit it has not heretofore done, the question would be whether there was any reasonable basis whatever [*45] for this verdict. In our brief we have pointed out citations, a New York verdict seven times this big, three and a half million dollars. Since we wrote the brief, it has been cut to 350,000 dollars by the appellate division. MR. JUSTICE BLACK: What kind of case? MR. NACHMAN: Falk against Aware. It was a case in which the publication— MR. JUSTICE BLACK: A libel case? MR. NACHMAN: Yes, sir, a libel case. It was a libel case, and as I say there was a three and one–half million dollar award in this case. And The Times itself on the issue of reason said that this has a healthy effect. We submit that in the context of this case a small verdict would have been a bagatelle. It would have been a slap on the wrist to The Times for this sort of conduct, even if you consider this as being entirely punitive damages. MR. JUSTICE BLACK: That verdict wasn’t against The Times, was it? MR. NACHMAN: No, sir, it was against a much smaller publication with, I think, a circulation of about 2,000, a publication with obviously nothing like the prestige that this ad carried—“All the News That’s Fit to Print” and all the rest of it. We think that that all impelled a large and substantial verdict in this case, which the jury awarded. Thank you, sir. THE CLERK: The Honorable Court is now adjourned until tomorrow at ten o’clock. [Whereupon, at 2:33 o’clock p.m., argument in the above–entitled matter was concluded.] |