NEW YORK TIMES v. SULLIVAN

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Argument of Herbert Wechsler

Chief Justice Earl Warren: Number 39, New York Times Company, Petitioner, versus L.B. Sullivan.

Mr. Wechsler.

Mr. Herbert Wechsler: Mr. Chief Justice, may it please the Court.

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

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

Unknown Speaker: (Inaudible)

Mr. Herbert Wechsler: Thank you.

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

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

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

The problems arise in this context.

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

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

These are the petitioners in Number 40.

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

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

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

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

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

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

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

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

The publication claims of libel, the respondent --

Justice William J. Brennan: Which was the -- which was the James case, is that another Commissioner of Montgomery or (Voice Overlap) --

Mr. Herbert Wechsler: He was the Commissioner who's called the mayor.

Justice Potter Stewart: One of the three Commissioners is the mayor.

Mr. Herbert Wechsler: Yes sir.

One of the three Commissioners.

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

Justice Potter Stewart: And -- and what's the status of that case now?

Mr. Herbert Wechsler: It's pending in the Circuit Court of Montgomery County on an -- is yet undetermined motion for new trial presumably, being held pending the decision of this Court here.

Justice Arthur J. Goldberg: THe verdict of this came (Inaudible)

Mr. Herbert Wechsler: It was Mr. Justice.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert Wechsler: It was.

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

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

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

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

Justice William O. Douglas: Where is that printed here?

Mr. Herbert Wechsler: It's in appendix --

Justice William O. Douglas: Oh (Inaudible)

Mr. Herbert Wechsler: -- to the brief Mr. Justice Douglas --

Justice William O. Douglas: Yes, I --

Mr. Herbert Wechsler: -- which of course is a facsimile copy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: Alabama State College is entirely Negro --

Mr. Herbert Wechsler: So I understand Mr. Justice.

Justice Potter Stewart: At -- in or near Montgomery?

Mr. Herbert Wechsler: It is sir, yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He was in fact subsequently acquitted of that charge.

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert Wechsler: There were four in Montgomery.

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert Wechsler: Correct.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert Wechsler: He was arrested four times in Montgomery and my recollection is that that didn't count another arrest in Atlanta.

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

I -- I'm reasonably confident of my recollection about the fifth.

It would be easy to check.

Chief Justice Earl Warren: You said it -- you said it to be in the fifth paragraph that they object to?

Mr. Herbert Wechsler: No, Mr. Chief Justice, they --

Chief Justice Earl Warren: The sixth?

Mr. Herbert Wechsler: Oh in -- it's the sixth, yes.

Chief Justice Earl Warren: Yes.

Mr. Herbert Wechsler: The words beginning again and again and down through the italicized words "10 years" on the eighth line.

Unknown Speaker: Which --

Justice Byron R. White: (Inaudible) the college within the city limits?

Mr. Herbert Wechsler: I believe it is.

I believe it is --

Justice Byron R. White: All within the city limits.

Mr. Herbert Wechsler: -- Mr. Justice.

Justice Byron R. White: But it is a state college.

Mr. Herbert Wechsler: It is a state college.

Justice Byron R. White: It is a state college.

Mr. Herbert Wechsler: I assume so.

Justice Byron R. White: And it is state supported.

Mr. Herbert Wechsler: I know that it is a state college under the State Board of Education where they -- where the Governor of the State, the ex officio chairman of the Board of Trustees.

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

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

Mr. Herbert Wechsler: I -- I would have to answer your question in this way Mr. Justice.

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

The pleading did not separate out any particular statement.

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

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

Justice William J. Brennan: But you do, as I understood you so far, if in effect you had conceded or review their mistake or inaccuracy, the word "seventh."

Mr. Herbert Wechsler: Yes.

Justice William J. Brennan: But do you otherwise?

Mr. Herbert Wechsler: The -- no, I don't concede any inaccuracy but I -- I say that the record shows a contrariety of evidence on the question whether Dr. King was assaulted.

Justice William J. Brennan: Yes.

Mr. Herbert Wechsler: And those are the only --

Justice William J. Brennan: The only concession you're making is to enact it in using the word "seventh."

Mr. Herbert Wechsler: Exactly, sir.

Justice Byron R. White: Likely, I supposed the ad really charges "eight", that's seven arrests of a certain type (Inaudible) now he is charged -- getting charged with (Inaudible) does that make the eighth?

Mr. Herbert Wechsler: Well, that's a problem of construction.

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

Justice Potter Stewart: Then I suppose that's technically inaccurate and it says that the (Inaudible)

Certainly --

Mr. Herbert Wechsler: But --

Justice Potter Stewart: -- on one count, it's punishable by 10 years (Voice Overlap) --

Mr. Herbert Wechsler: Exactly.

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

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

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

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

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

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

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

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

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

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

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

Justice John M. Harlan: Did the police --

Mr. Herbert Wechsler: But --

Justice John M. Harlan: -- chief himself bring an action?

Mr. Herbert Wechsler: No he did not Mr. Justice.

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

Justice Potter Stewart: That'd be the statute of limitation (Inaudible)

Mr. Herbert Wechsler: I think it has, sir.

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

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

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

Their dining hall was padlocked and --

Justice Byron R. White: (Inaudible) the local police, could it be the state (Inaudible)

Mr. Herbert Wechsler: It could be the state police.

It could be the state --

Justice William J. Brennan: What were the facts -- well, two days later, you mentioned the -- there were more police to the number of arrests, who were they?

Were they (Voice Overlap) --

Mr. Herbert Wechsler: No, these were the Montgomery police who made that --

Justice William J. Brennan: And on those (Voice Overlap) --

Mr. Herbert Wechsler: -- those arrests.

Justice William J. Brennan: -- proof of those who where there on this occasion were the Montgomery Police?

Mr. Herbert Wechsler: Yes.

Justice William J. Brennan: You said they were stationed nearby or something like that.

Mr. Herbert Wechsler: That these Montgomery Police, the record shows were deployed nearby.

That is correct sir.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice John M. Harlan: What's the effect of the retraction under Alabama law?

Mr. Herbert Wechsler: The -- the effect of it Mr. Justice was to bar punitive damages --

Justice John M. Harlan: Punitive damages --

Mr. Herbert Wechsler: -- if considered adequate under the Alabama retraction statute.

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

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

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

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

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

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

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

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

Now, I come to the rulings --

Justice John M. Harlan: Could I ask you one (Voice Overlap) --

Mr. Herbert Wechsler: Yes, indeed.

Justice John M. Harlan: -- how many days did this advertisement published?

Mr. Herbert Wechsler: One day.

Justice John M. Harlan: Just one day.

Mr. Herbert Wechsler: Yes, this March, 29th?

Justice John M. Harlan: And with 394 copies you say?

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

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

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

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

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

And that was a ruling made by the Court.

No jury ever passed on whether these statements were libelous.

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

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

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

Justice Arthur J. Goldberg: But --

Mr. Herbert Wechsler: They --

Justice Arthur J. Goldberg: Before you (Inaudible)

Mr. Herbert 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 -- the Alabama Supreme Court made its view quite explicit.

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

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

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

I don't know what those legal patterns were.

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

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

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

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

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

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

Justice William J. Brennan: (Inaudible)

Mr. Herbert Wechsler: It is Mr. Justice, yes.

Justice William J. Brennan: (Inaudible)

Mr. Herbert Wechsler: Yes.

Justice William J. Brennan: (Inaudible) as I get -- I gather, to separate (Inaudible)

Mr. Herbert Wechsler: We -- we prayed for a separation which was denied, argued that this was error in the Supreme Court of Alabama.

It's not adverted to in the opinion.

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

Justice William J. Brennan: In any event, I gather there was no true fallback (Inaudible)

Mr. Herbert Wechsler: None --

Justice William J. Brennan: (Inaudible) as these -- both from the supposed presumption of the --

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

And the record is absolutely clear on that.

Justice John M. Harlan: Does the record show (Inaudible)

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

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

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

Unknown Speaker: That's right.

Justice William J. Brennan: (Inaudible)

Unknown Speaker: Yes.

It was over two hours.

Mr. Herbert Wechsler: I apologize, a little over two hours.

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

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

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

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

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

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

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

Now --

Justice Arthur J. Goldberg: In this -- in the assumption (Inaudible) is the safe passing of the common law rule (Inaudible) that would probably (Inaudible)

Mr. Herbert Wechsler: Oh certainly, certainly we -- certainly we assume that but I shouldn't suppose that controversial.

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert Wechsler: I should think --

Justice Arthur J. Goldberg: Do you think that would (Inaudible) if the second (Inaudible) or that the statement (Inaudible) without offending the First Amendment?

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

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

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

Unknown Speaker: (Inaudible)

Justice William J. Brennan: (Inaudible) to official conduct --

Mr. Herbert Wechsler: Yes.

Justice William J. Brennan: -- through official conduct, are there any limits whatever, which take it outside the protection of the First Amendment?

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

I -- I think --

Justice William J. Brennan: (Inaudible) to say then that the -- if the First Amendment gives it to -- in effect on absolute truth (Voice Overlap) --

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

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

Justice Arthur J. Goldberg: This applies to the (Inaudible)

Mr. Herbert Wechsler: Exactly.

Of course, or any --

Justice Arthur J. Goldberg: And it was not -- were not arguing here (Inaudible) rule that applies (Inaudible)

Mr. Herbert Wechsler: Certainly not.

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

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

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

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

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

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

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

Mr. Herbert Wechsler: Certainly.

Justice Potter Stewart: (Inaudible)

Mr. Herbert Wechsler: Certainly, certainly.

Justice Potter Stewart: -- or vying this office or --

Mr. Herbert Wechsler: Certainly.

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

Now --

Justice Byron R. White: But Mr. Wechsler, the -- we don't have here a case of a deliberate falsity --

Mr. Herbert Wechsler: No.

Justice Byron R. White: So we -- we don't really need to -- I don't suppose that's really posed here.

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

Justice William J. Brennan: Need next to be narrowed.

Mr. Herbert Wechsler: Next to narrower and there were two.

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

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

We're not dealing with individual reputation here.

We're dealing with official reputation.

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

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

Now, that pictures everything of --

Justice Hugo L. Black: Suppose that the jury found that he did?

Mr. Herbert Wechsler: Well, I don't think you can assume it was false here.

Justice Hugo L. Black: (Voice Overlap) it was not deliberate.

Mr. Herbert Wechsler: You could --

Justice Hugo L. Black: I -- as I -- as I understood you had something to say about this.

Mr. Herbert Wechsler: Yes.

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

Justice Hugo L. Black: And the jury has passed on it.

Mr. Herbert Wechsler: The jury was passed on it.

Justice Hugo L. Black: And they held it was false.

Mr. Herbert Wechsler: Well, the jury actually didn't --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Herbert Wechsler: -- have the issue of falsity submitted to it.

And the jury was told that it was presumably false.

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

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

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

Now --

Unknown Speaker: (Inaudible) a complete defense, is it?

Mr. Herbert Wechsler: It is a complete defense in Alabama but there's no privilege beyond that.

Justice Potter Stewart: Well, how about fair comment, that's suggested (Voice Overlap) --

Mr. Herbert Wechsler: Only on facts truthfully stated.

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

Justice Potter Stewart: Yes.

Mr. Herbert Wechsler: You lose your privilege of comment unless your facts are right.

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

But I --

Justice Potter Stewart: The truth is a complete defense.

Mr. Herbert Wechsler: The truth is a complete --

Justice Potter Stewart: (Voice Overlap) of pleadings?

Mr. Herbert Wechsler: And it has to be and it has to meet the charge.

It must be as broad as the charge.

Justice Arthur J. Goldberg: (Inaudible)

Justice Potter Stewart: It went in -- in short, and putting it bluntly, the reason you couldn't plea that defense is that some of these statements were not true.

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

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

Justice Potter Stewart: Well, I (Voice Overlap) --

Mr. Herbert Wechsler: -- to say that Sullivan bombed it, that was the difficulty.

Justice Potter Stewart: Yes, I see.

Justice William J. Brennan: (Inaudible) the jury finding, I take it was, this meant that Sullivan bombed King's home.

Mr. Herbert Wechsler: I don't know Mr. Justice.

The --

Justice William J. Brennan: Well, wasn't that issue of the identification?

Mr. Herbert Wechsler: We don't know what the jury thought --

Justice William J. Brennan: Alright.

Mr. Herbert Wechsler: -- referred to Sullivan.

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

Justice William J. Brennan: What was the actual submission to them whether -- on -- on the premise that if they found that anyone of the statements which on its face was libelous under that rule, referred to Sullivan.

They could bring in a verdict against Times.

Mr. Herbert Wechsler: The -- this issue was not clarified by the charge.

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

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

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

Justice Byron R. White: (Inaudible) to believe that all these statements involved?

Mr. Herbert Wechsler: It was free except that the evidence didn't support such a view.

Justice Byron R. White: Was there any -- no -- no submission on this matter at all.

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

Mr. Herbert Wechsler: No.

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

Justice Arthur J. Goldberg: (Inaudible) the First and the Fourteenth Amendment, no public official can sue or rely upon (Inaudible)

Mr. Herbert Wechsler: That is the broadest statement that I made but I wish in my remaining time to indicate what the -- what the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert Wechsler: -- lesser submissions are because there are many that I think must produce --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert Wechsler: -- the reversal in this case.

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

But --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Herbert Wechsler: That's right.

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

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

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

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

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

But my further points are these.

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

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

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

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

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

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

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

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

Justice John M. Harlan: Are we entitled to review the evidence here short of findings.

There was no evidence in the Thompson against Wilson?

Mr. Herbert Wechsler: Yes.

I think very definitely Mr. Justice.

I'm -- I am not making that we have the Thompson argument.

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

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

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

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

I'm not saying it may make --

Justice Arthur J. Goldberg: Are you saying the state (Inaudible)

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

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

Now --

Justice William J. Brennan: Mr. Wechsler, (Inaudible) is the size of the award peculiarly important?

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

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

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

Mr. Herbert Wechsler: The jury --

Justice William J. Brennan: (Inaudible) in a dependent argument based on the purpose.

Mr. Herbert Wechsler: It's a part of the argument on the sufficiency of the evidence really but it is an independent one.

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

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

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

Justice Byron R. White: Mr. Wechsler, what is the fact of the record about whether the Times -- whether the Times knew these -- these statements which were involved?

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

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

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

Justice Byron R. White: And the -- then the -- if you accept the Supreme Court of Alabama's aversions of -- we must deal with your broader first ground.

Mr. Herbert Wechsler: Yes.

Justice Byron R. White: And we -- if you're --

Mr. Herbert Wechsler: But --

Justice Byron R. White: Why --

Mr. Herbert Wechsler: But you --

Justice Byron R. White: Why --

Mr. Herbert Wechsler: You have to accept the Supreme Court's -- of Alabama's version also Mr. Justice on the other concerning point in order to get to the broad ground.

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

Justice Hugo L. Black: Was that the finding?

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

The jury was -- couldn't find that that was a charge against him?

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

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

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

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

Mr. Herbert Wechsler: I haven't --

Justice Hugo L. Black: -- particularly, if it's charged to be a continuant thing.

Mr. Herbert Wechsler: Well, it isn't charged to be a continuant thing in Montgomery, Alabama.

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

Justice Tom C. Clark: And what if the (Inaudible) wouldn't that case, sort of place that (Inaudible)

Mr. Herbert Wechsler: I -- in stating the case Mr. Justice, I accepted for purposes of argument, Commissioner Sullivan's statement that when you talk about arrest, you're talking about police.

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

I -- I assume police do make arrests and that's alright.

Justice Tom C. Clark: That's in the reference at paragraph six, isn't it?

Mr. Herbert Wechsler: That's paragraph six.

Justice Tom C. Clark: This charge from the (Inaudible)

Mr. Herbert Wechsler: Yes.

Justice Tom C. Clark: This was (Inaudible) arrested upon (Inaudible) arrested, isn't that correct?

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

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

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

Justice Tom C. Clark: Four of those were made in Montgomery.

Four of those were made in a particular house.

Mr. Herbert Wechsler: Yes, in Montgomery.

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

Justice Tom C. Clark: Where is the (Inaudible)

Mr. Herbert Wechsler: Well, he -- he at one time lived in Montgomery as I understand it but he left and moved to Atlanta.

Justice Tom C. Clark: At this time he made (Inaudible)

Mr. Herbert Wechsler: At the time of this publication, he lived in Atlanta.

Atlanta was his home, yes.

Justice Tom C. Clark: At the time of the arrest, he lived in Atlanta?

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

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

Justice Hugo L. Black: (Inaudible) according to jury were to find -- to have treated these paragraphs separately?

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

Mr. Herbert Wechsler: Yes.

Justice Hugo L. Black: Would you say that it's the same that if -- if it by insinuation, in innuendo, it would not be equally chargeable if you are wrong on your first big, broad ground?

Mr. Herbert Wechsler: I -- I think that's a question of whether the innuendo is proved.

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

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

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

Justice Hugo L. Black: (Inaudible) he was one in the group, that there were a 175 or 200?

Mr. Herbert Wechsler: Well --

Justice Hugo L. Black: Do you accept Beauharnais?

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

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

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

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

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

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

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

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

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

Mr. Herbert Wechsler: Yes sir.

Justice Byron R. White: The very --

Mr. Herbert Wechsler: The --

Justice Byron R. White: The jury was supposed to decide that when (Inaudible)

Mr. Herbert Wechsler: Well, no, there was an issue made but it didn't work that way.

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

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

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

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

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

Justice Byron R. White: No definition of punitive damages of --

Mr. Herbert Wechsler: No, just -- well, yes, punitive damages are given to deter the offender and to deter others but no indication of the --

Justice Byron R. White: The relevance acknowledged through within --

Mr. Herbert Wechsler: Exactly.

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

That is --

Unknown Speaker: (Inaudible)

Mr. Herbert Wechsler: That is not in the charge.

Justice Byron R. White: The way the case was tried, it's irrelevant whether it was true -- whether they knew it or not.

Mr. Herbert Wechsler: Well --

Justice Byron R. White: And then -- in a submission to the jury.

Mr. Herbert Wechsler: There was in the testimony of course.

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

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

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

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

Justice Arthur J. Goldberg: Mr. Wechsler, (Inaudible)

Mr. Herbert Wechsler: No, we have not made that point, Mr. Justice.

Chief Justice Earl Warren: (Inaudible)

Mr. Nachman.

Argument of M. Roland Nachman, Jr

Mr. M. Roland Nachman, Jr: May it please the Court.

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

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

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

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

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

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

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

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

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

An answer was received and this is in the record.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: It's alright sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

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

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

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

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

There was still a refusal to retract.

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

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

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

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

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

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

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

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

Then we move to the trial.

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

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

An example, if I may be indulged in reading.

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

This was to a witness.

This is page 625 of the record.

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

Another example, "You didn't believe it to be true when you read it, did you Mr. Kaminsky?"

Answer: No.

I didn't think Mr. -- Commissioner Sullivan would do that.

That's at page 638 of the record.

Another example, to another witness, "You didn't believe that it was true, did you?"

Answer: I knew it wasn't true.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: I'm talking about -- I'm addressing myself to Mr. Wechsler's argument that this ad is -- is inaccurate in certain particulars, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: No, sir.

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: I am not saying that there was no attempt made by the Times to justify.

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

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

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

Justice Potter Stewart: By the entire ad, you mean paragraph three and six?

Mr. M. Roland Nachman, Jr: Excuse me sir.

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

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

I --

Justice John M. Harlan: The third.

Mr. M. Roland Nachman, Jr: I didn't mean to -- to address myself.

Justice William J. Brennan: (Inaudible) I gather he was the Times counsel?

Mr. M. Roland Nachman, Jr: He was the trial counsel, yes, but there were others.

Justice William J. Brennan: And now you're suggesting that whatever he may have said, whatever you want to put on it in the way of interpretation that this was evidence to the jury?

Mr. M. Roland Nachman, Jr: Yes, sir.

He brought out questions from these witnesses.

This isn't true and the witness said no.

It isn't, and this went to the jury.

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

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

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

Justice William J. Brennan: May we reexamine?

Mr. M. Roland Nachman, Jr: We -- we say, no sir, unless there is no basis whatever.

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

But we say --

Justice Byron R. White: (Inaudible) -- you mean re -- you mean examine the facts?

Mr. M. Roland Nachman, Jr: Correct, sir.

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

There's no evidence at all to support it that the Thompson against Louisville situation --

Justice William J. Brennan: (Inaudible)

Mr. M. Roland Nachman, Jr: The Seventh Amendment.

Justice William J. Brennan: State trial?

Mr. M. Roland Nachman, Jr: State trial, yes, sir that that -- the jury verdict reexamined otherwise and in accordance with the rules of common law which is -- we understand the decisions of this Court --

Justice William J. Brennan: (Inaudible)

Mr. M. Roland Nachman, Jr: -- protects state verdicts as well as -- as federal verdicts.

Justice Byron R. White: But I suppose if -- (Inaudible) I gather it is that libel falls out the -- outside the protection of the First Amendment that someone has to finally decide what is libel that what -- what libel is that falls outside the protection of the First Amendment.

Mr. M. Roland Nachman, Jr: Well, yes, sir.

The jury was not --

Justice William J. Brennan: The jury isn't the final answer on that I don't suppose.

Mr. M. Roland Nachman, Jr: You mean the characterization of the ad as libelous Your Honor?

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

Justice William J. Brennan: That we can't (Inaudible)

Mr. M. Roland Nachman, Jr: Your Honor, I would -- I would answer that in two ways.

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

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

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

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

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

Justice William O. Douglas: (Inaudible) because the judge charges at the bottom of page 823 that this is libel per se.

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

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

Mr. M. Roland Nachman, Jr: Yes, sir.

That's a prima facie presumption.

Justice William O. Douglas: Yes.

Mr. M. Roland Nachman, Jr: The -- this is not an absolute presumption.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice William J. Brennan: (Inaudible)

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

Mr. M. Roland Nachman, Jr: Yes, sir.

It -- it said for errors and misstatements.

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

Justice Arthur J. Goldberg: (Inaudible) I'm reading it from page (Inaudible) of the petitioner.

Justice Potter Stewart: So am I.

Mr. M. Roland Nachman, Jr: Alright, sir.

Justice William J. Brennan: (Inaudible) -- complained of by the Governor, the New York Times has never intended (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

And we read --

Justice William J. Brennan: (Inaudible)

Mr. M. Roland Nachman, Jr: We read that Your Honor.

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

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

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

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

I -- I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Well the errors and misstatements Your Honor, I think are -- are different ways of saying that it's -- that it's false.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Your Honor, if -- if I might sir --

Chief Justice Earl Warren: (Inaudible)

Mr. M. Roland Nachman, Jr: Could I call your attention to page 596 of the record about midway down, since publication of the -- for its -- its just before Folio 1715.

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

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

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: That's alright sir, I'm -- I'm glad to answer the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: That's right, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: That's what he said first before cross-examination.

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

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

Answer: That is correct.

Justice Arthur J. Goldberg: (Inaudible)

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: In my opinion -- in my opinion, everything except the -- the academic discipline of expulsion from school refers to Mr. Sullivan.

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

We think that --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Your Honor, municipal authorities can reasonably be construed by a jury to the state authorities too.

They -- they're police authorities within a state.

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Well, we -- we simply don't because the -- the respondent conceded at the trial that -- that he had no jurisdiction in that regard and made no contention whatever at the trial at that particular statement re -- referred to him.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: He would in certain circumstances where -- whether -- order -- with peace and order were threatened, I'm sure he would.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Your Honor, in paragraph 6, we would like to advert to an observation which Justice Clark made and which was -- was, I thought rather notably underplayed in -- in Mr. Wechsler's argument.

The repeated use of the word "they".

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

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

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

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: What the -- the thing --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: The thing that would prevent in Alabama Your Honor is Alabama jurisprudence which requires -- which --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: -- which requires that a group be sufficiently small so that the identification can readily be made.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: I think it would.

The --

Justice Arthur J. Goldberg: (Inaudible)

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

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

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

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: The question was asked earlier about the police chief.

I would say that he could, yes sir.

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

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

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

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

Justice John M. Harlan: Well, was there any effort to prove special damage (Inaudible)

Mr. M. Roland Nachman, Jr: To this extent Your Honor, one of the witnesses testified.

He was a former employer of Mr. Sullivan.

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

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

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

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

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

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

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

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

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

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

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

Justice William J. Brennan: (Inaudible) -- action of (Inaudible) take out of the case, especially in general damages?

Mr. M. Roland Nachman, Jr: Yes, sir.

We've --

Justice William J. Brennan: At least punitive, is that it?

Mr. M. Roland Nachman, Jr: Excuse me sir.

I beg your pardon.

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

We've cited the statute on page 68 of -- of our brief.

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

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

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

Chief Justice Earl Warren: (Inaudible) that retraction statute found?

Mr. M. Roland Nachman, Jr: No, sir.

Oh, Mr. Chief Justice, I do not --

Chief Justice Earl Warren: I mean, irrelevant to this (Voice Overlap).

Mr. M. Roland Nachman, Jr: I believe there are a good many, sir but I -- I couldn't say exactly how many.

We say that all -- that --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Alright, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Your Honor, the -- the two reports Mr. Wechsler talked about one of them.

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

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

Justice Arthur J. Goldberg: You're not assuming --

Mr. M. Roland Nachman, Jr: Yes, but I will assume for the sake of the hypothetical what --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: May -- may I be sure I understand the -- the question correctly.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: I -- I certainly would contend that a retraction of -- was --was an order Your Honor.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Well, in the first paragraph --

Unknown Speaker: (Inaudible)

Mr. M. Roland Nachman, Jr: In the first paragraph -- to the third paragraph, the first one that we complained about other than the unprecedented wave of terror in the preamble.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. M. Roland Nachman, Jr: That's right sir and we've --

Unknown Speaker: (Inaudible)

Mr. M. Roland Nachman, Jr: And then in the -- in the other paragraph as I've stated the repeated use of the word "they".

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: That was the question I attempted to answer before.

I -- I still think that the rest of --

Justice Arthur J. Goldberg: The whole point of your argument (Inaudible)

Mr. M. Roland Nachman, Jr: You left police and --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: I -- well --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: I would take the same position.

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: I would --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: I would take the same position Your Honor and I would be in accord with Mr. Aronson of the Times.

Justice Arthur J. Goldberg: Do you think (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

I would.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: Well, police action, we submit is clearly described.

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

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

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

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

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

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

They -- they -- that booklet is in evidence and --

Justice Byron R. White: (Inaudible) the Alabama law?

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

Mr. M. Roland Nachman, Jr: Yes sir.

Justice Byron R. White: That's the -- the jury would get him up the stand though?

Mr. M. Roland Nachman, Jr: Yes sir.

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

Two of its three witnesses were --

Justice Byron R. White: (Inaudible) to this case unavoidably presents the question of whether or not a -- a person may tell a deliberate lie about a publication?

Mr. M. Roland Nachman, Jr: We think this evidence on which a jury --

Justice Byron R. White: Oh, is that the issue?

Mr. M. Roland Nachman, Jr: No, sir.

That is not the issue.

Justice Byron R. White: But that's the -- but that -- that's a question of the First Amendment whether the -- whether a -- whether you may publish a deliberate lie --

Mr. M. Roland Nachman, Jr: Oh -- oh yes sir.

Justice Byron R. White: -- in order to lie --

Mr. M. Roland Nachman, Jr: Yes Your Honor.

Justice Byron R. White: -- about a public official?

Mr. M. Roland Nachman, Jr: We do.

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

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

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

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

Justice Byron R. White: But even (Inaudible) -- if it were held here -- it were held here that a newspaper could publish a (Inaudible) which -- this must be true, that would still (Inaudible)

Mr. M. Roland Nachman, Jr: You mean a reasonable belief in truth?

Justice Byron R. White: Yes.

Mr. M. Roland Nachman, Jr: No, sir.

Not under Alabama law.

It would have to be true.

Justice Byron R. White: But on the (Inaudible)

Mr. M. Roland Nachman, Jr: They --

Justice Byron R. White: -- this case, say they knew it was false or (Voice Overlap).

Mr. M. Roland Nachman, Jr: Yes, sir.

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

Justice Potter Stewart: Well, then you -- don't you also say that the failure to retract --

Mr. M. Roland Nachman, Jr: Later Your Honor.

Justice Potter Stewart: -- (Voice Overlap) of the falseness is --

Mr. M. Roland Nachman, Jr: After -- after knowledge came but I say, even before that, that that they -- they have as I was going say, these advertising acceptability standards.

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

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

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

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

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

He didn't check with any of the -- the signers of the ad.

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

We asked that specific question.

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

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

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

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

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

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

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

Justice Byron R. White: What -- where in the record -- was there any way of finding out what the jury found or --

Mr. M. Roland Nachman, Jr: There were no --

Justice Byron R. White: -- or any other -- or any other -- or any other Alabama courts about the questions (Inaudible)

Mr. M. Roland Nachman, Jr: Your Honor, under Alabama practice, a jury has a right to bring back a general verdict as distinguished from -- from the federal practice.

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

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

Justice Byron R. White: Did the Alabama --

Mr. M. Roland Nachman, Jr: -- what they deliberated on.

Justice Byron R. White: The Alabama Supreme Court feels it's necessary to sustain the verdict to the (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

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

Justice Byron R. White: Does it say a finding?

Mr. M. Roland Nachman, Jr: Yes, sir.

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

The -- I'm reading from 273 Alabama 686.

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

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

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

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

Unknown Speaker: (Inaudible)

Mr. M. Roland Nachman, Jr: Plaintiff asked, but no charges.

Unknown Speaker: Any charge at all?

Mr. M. Roland Nachman, Jr: No, sir.

Justice Hugo L. Black: Could the plaintiff has had asked for a charge if we, the jury find all the issues in favor of the plaintiff?

Mr. M. Roland Nachman, Jr: I -- I don't believe that.

Justice Hugo L. Black: That was normally the fact here.

Mr. M. Roland Nachman, Jr: I don't believe that would be permissible, so we -- we ask for no -- I mean I -- we -- the plaintiff could've asked for a directed verdict.

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

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

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

Mr. M. Roland Nachman, Jr: I -- I don't know but sir, but I'm -- I'm not prepared to say it's been abandoned or --

Justice Hugo L. Black: (Inaudible)

Mr. M. Roland Nachman, Jr: -- or I -- I've -- I've never done it and I've never seen it done but --

Justice Hugo L. Black: It was formerly or effective, I know in dispute.

Mr. M. Roland Nachman, Jr: But in this case, there was no requested charge from the -- the jury -- to -- from the judge to the jury.

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

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

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

Justice William J. Brennan: (Inaudible) thousands with the 5 million and (Inaudible) the 5 million I take it, (Inaudible) on this record, could still be the (Inaudible)

Mr. M. Roland Nachman, Jr: Your Honor, on that as we've argued in our brief, as we understand the cases of this Court, it has not heretofore gone into the question of the excessiveness or inadequacy of damages.

Unknown Speaker: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, under the -- under the Seventh Amendment.

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

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

We --

Justice Arthur J. Goldberg: (Inaudible)

Mr. M. Roland Nachman, Jr: The latest case on this question of damages that I know of is Neese against Southern Railroad where this case -- or where this Court expressly refused or declined to go into this -- this question.

Justice Arthur J. Goldberg: (Inaudible)

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

Justice William J. Brennan: But why 500,000 there is, but there wouldn't be a full $5 million, I don't follow it.

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

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

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

But on the question of reason -- sir?

Unknown Speaker: (Inaudible)

Mr. M. Roland Nachman, Jr: Faulk against Aware, Inc.

It was a case in which this publication of --

Unknown Speaker: (Inaudible)

Mr. M. Roland Nachman, Jr: Yes, sir.

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

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

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

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

And it would --

Unknown Speaker: (Inaudible)

Mr. M. Roland Nachman, Jr: No, sir.

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

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

Thank you sir.

Print this transcript Transcript: 

Argument of William P. Rogers

Chief Justice Earl Warren: Ralph D. Abernathy et al., Petitioners, versus L. B. Sullivan.

General Rogers.

Mr. William P. Rogers: Mr. Chief Justice, may it please the Court.

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

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

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

No actual or special damages were awarded.

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

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

I think it'd be --

Justice John M. Harlan: (Inaudible)

Mr. William P. Rogers: I'm not sure that's certainly in this case, there was no --

Justice John M. Harlan: (Inaudible)

Mr. William P. Rogers: Yes.

Justice Hugo L. Black: They can be, given the evidence.

Mr. William P. Rogers: I think it's interesting in that connection Your -- Your Honor that the largest fine that could've been imposed in a criminal libel action in the State of Alabama would have been $500.

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

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

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

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

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

What was the proof in the case?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All have been active in the cause for civil rights.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I had no knowledge of it whatsoever."

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

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

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

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

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

Of course, the claim of ratification is auspicious.

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

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

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

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

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

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

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

It did not ask for a reply.

It demanded a retraction in the New York Times.

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. William P. Rogers: As to the other suit Your Honor it was delivered up roughly eight days before the litigation was started.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William P. Rogers: That is correct --

Justice Arthur J. Goldberg: (Inaudible)

Mr. William P. Rogers: It says five days.

Justice Arthur J. Goldberg: (Inaudible)

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

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

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

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

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

That is the settled law of Alabama.

Justice John M. Harlan: (Inaudible)

Mr. William P. Rogers: Yes, it is Your Honor.

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

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

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

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

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

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

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

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

Now that is this case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. William P. Rogers: Yes it is, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William P. Rogers: Well, Your Honor, I'm not sure that -- I'll attempt to find out.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William P. Rogers: Mr. Nachman says no.

Justice John M. Harlan: (Inaudible)

Mr. William P. Rogers: Yes, Your Honor.

Well, that I think -- that was -- but while it was pending on appeal, that's alright.

Unknown Speaker: (Inaudible)

Mr. William P. Rogers: In other words, three of them have had their automobiles sold at sheriff sale.

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

Three have moved out of Alabama.

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

Now, Mr. Nachman, rather --

Justice Hugo L. Black: In the record, Mr. Rogers?

Mr. William P. Rogers: About the time spent?

Justice Hugo L. Black: (Inaudible) you just stated?

Mr. William P. Rogers: Well, I think so Your Honor.

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

Justice Hugo L. Black: In connection with this matter.

Mr. William P. Rogers: Yes.

Justice Hugo L. Black: If you just going to (Inaudible) refer us to the pages?

Mr. William P. Rogers: Yes, I could Your Honor.

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

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

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

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

Chief Justice Earl Warren: Judge Pierce.

Argument of Samuel R. Pierce, Jr.

Mr. Samuel R. Pierce, Jr.: Thank you.

If it pleases the Court.

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

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

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

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

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

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

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

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Is the record approved?

Justice Arthur J. Goldberg: (Inaudible)

Justice Byron R. White: Yes.

Mr. Samuel R. Pierce, Jr.: Yes, yes.

Justice William J. Brennan: Did the trial judge make that distinction, addresses counsel (Inaudible)

Mr. Samuel R. Pierce, Jr.: Yes, he -- he does.

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

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

I want --

Justice Byron R. White: (Inaudible)

Mr. Samuel R. Pierce, Jr.: That -- that's the judge, Judge Jones.

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

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

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

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

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

The intensity of that remark can be felt here.

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

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

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

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

The exact words of Judge Jones were very interesting.

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

Justice Hugo L. Black: (Inaudible) in the record?

Mr. Samuel R. Pierce, Jr.: This is -- is not in the record sir, this is in a companion case and this was actually yesterday.

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

Justice Hugo L. Black: One of the libel --

Mr. Samuel R. Pierce, Jr.: -- just another --

Justice Hugo L. Black: Another libel case?

Mr. Samuel R. Pierce, Jr.: This is another libel case.

Justice Hugo L. Black: One that --

Mr. Samuel R. Pierce, Jr.: And I think that --

Justice Hugo L. Black: (Inaudible)

Mr. Samuel R. Pierce, Jr.: It's the same nature.

In fact, they have the same defendants.

Unknown Speaker: Brought in the court.

Mr. Samuel R. Pierce, Jr.: The same advertisement, it's exactly the same case.

And this is the same judge who tried it.

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

Unknown Speaker: (Inaudible) where are you reading?

Mr. Samuel R. Pierce, Jr.: I'm reading from his -- his statement that he made from the bench on February 1, 1961 in the Circuit Court of Montgomery, Alabama.

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

And these are his remarks --

Unknown Speaker: (Inaudible)

Mr. Samuel R. Pierce, Jr.: The Alabama Lawyer pages 190 through 192 and the month of the issue, I don't have it, what's the month of the issue?

Unknown Speaker: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Volume 22?

Volume 22.

Justice John M. Harlan: (Inaudible)

Mr. Samuel R. Pierce, Jr.: No, it's not a lower -- well, it -- it does contain law review type articles but this is just -- this -- it's a -- it's an official journal as they say of the Alabama Bar.

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

Justice Hugo L. Black: Is it printed in the court record?

Mr. Samuel R. Pierce, Jr.: What's that sir?

Justice Hugo L. Black: It's printed in court record?

Mr. Samuel R. Pierce, Jr.: It's printed in the court record in this case, yes sir.

In the --

Justice Hugo L. Black: In this case.

Mr. Samuel R. Pierce, Jr.: In the -- no, in the case of James versus Abernathy, it's in the court record.

He made the statement in open court.

Justice Hugo L. Black: Where is it then?

Mr. Samuel R. Pierce, Jr.: Right now that case is pending in this -- I believe in the Circuit --

Unknown Speaker: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Their waiting, if I understand, a motion for a new trial, it's a sort of waiting the outcome, I imagine, of this case.

There are a number of cases, they're about four or five of them down --

Unknown Speaker: (Inaudible)

Mr. Samuel R. Pierce, Jr.: -- in Alabama.

What's that?

Unknown Speaker: Is that (Inaudible)

Mr. Samuel R. Pierce, Jr.: No, no.

It was not tried first.

The Sullivan case was tried before it.

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

Unknown Speaker: Is James (Inaudible) official?

Mr. Samuel R. Pierce, Jr.: James is another official, yes sir.

Justice William J. Brennan: Commissioner like Sullivan?

Mr. Samuel R. Pierce, Jr.: He's a -- he's a commissioner, yes sir.

Justice William J. Brennan: Half a million dollar verdict?

Unknown Speaker: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Half -- half a million dollar judgment yes.

Now --

Justice Hugo L. Black: How many lawsuits?

Mr. Samuel R. Pierce, Jr.: What's that sir?

Justice Hugo L. Black: How many judgments?

Mr. Samuel R. Pierce, Jr.: Five suits, I understand it pending at the present time.

Justice Hugo L. Black: All with half a million dollar judgment?

Mr. Samuel R. Pierce, Jr.: All with -- all except I think the one involving them -- the -- the governor, I think is for $1 million.

The others are for $500,000.

Chief Justice Earl Warren: Would you mind reading those words of the judge, (Inaudible)

Mr. Samuel R. Pierce, Jr.: Yes.

Yes, sir.

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

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

It is a pariah and an outcast."

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

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

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

Unknown Speaker: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Yes, that was the occasion sir.

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

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

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

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

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

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

Unknown Speaker: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Yes, sir.

Justice Hugo L. Black: Is there anything like that in this record?

Mr. Samuel R. Pierce, Jr.: In the -- in -- in this particular record, there are objections made -- constitutional objections have been raised about a segregated courtroom, yes sir.

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

Unknown Speaker: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Well, what -- what happened here was this, just as well take this now.

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

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

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

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

Now, we believe that the -- the --

Justice William J. Brennan: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Well --

Justice William J. Brennan: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Well, I'm gonna -- I -- I -- I -- I will -- here's what happened.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Therefore for all of those reasons --

Justice Hugo L. Black: I could agree with you, that action was in this case (Inaudible) in another case.

Mr. Samuel R. Pierce, Jr.: It's in this case sir.

This is in this case.

Justice Hugo L. Black: I think you were now talking about the statements he made in this case?

Mr. Samuel R. Pierce, Jr.: Yes, sir.

In this case, yes sir.

Justice Arthur J. Goldberg: Judge Pierce, (Inaudible)

Mr. Samuel R. Pierce, Jr.: Well, actually, what he said was, he -- he endorsed the papers only that the -- that the -- that the motion had lapsed.

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

He wouldn't even listen to them.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Samuel R. Pierce, Jr.: I don't know --

Justice Arthur J. Goldberg: New York Times, the motion came up (Inaudible)

Mr. Samuel R. Pierce, Jr.: It is -- I've understand it's a -- it's -- it's at least, I think dated at the same time.

Justice Potter Stewart: The counsel for the New York Times did keep their time alive, did he?

Mr. Samuel R. Pierce, Jr.: Yes, they -- they did.

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

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

Justice William J. Brennan: (Inaudible)

Mr. Samuel R. Pierce, Jr.: -- lawyers were doing.

Justice William J. Brennan: (Inaudible) Mr. Pierce, this case is tried together before the same period?

Mr. Samuel R. Pierce, Jr.: Yes, yes, this -- this one case.

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

Justice Arthur J. Goldberg: Counsel for the plaintiff, in taking the motions, (Inaudible) on a motion for a new trial.

Mr. Samuel R. Pierce, Jr.: The -- the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Samuel R. Pierce, Jr.: No, no.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Samuel R. Pierce, Jr.: No, no.

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

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

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

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

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

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

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

This --

Justice William J. Brennan: Did the plaintiffs (Inaudible) if I may (Voice Overlap) --

Mr. Samuel R. Pierce, Jr.: Yes, sir.

Justice William J. Brennan: I am right, am I that Sullivan sued New York Times and these four individual defendants --

Mr. Samuel R. Pierce, Jr.: Right.

Justice William J. Brennan: -- with the same complaint but --

Mr. Samuel R. Pierce, Jr.: Yes, sir.

Justice William J. Brennan: And the -- the Times is represented by one counsel or counsels and the individual defendants by other at --

Mr. Samuel R. Pierce, Jr.: Correct.

Justice William J. Brennan: -- the same trial.

Mr. Samuel R. Pierce, Jr.: At the same --

Justice William J. Brennan: Is that right?

Mr. Samuel R. Pierce, Jr.: -- trial, yes sir.

Justice William J. Brennan: And the same -- before the same jury and what the jury returns, separate --

Mr. Samuel R. Pierce, Jr.: No sir.

Justice William J. Brennan: -- awards?

Mr. Samuel R. Pierce, Jr.: A single --

Justice William J. Brennan: A single --

Mr. Samuel R. Pierce, Jr.: Single verdict.

Justice William J. Brennan: A single award, $500,000 against the Times and $500,000 each against these individuals, is that it?

Mr. Samuel R. Pierce, Jr.: No, it's a joint.

Justice William J. Brennan: Its joint, (Voice Overlap) --

Mr. Samuel R. Pierce, Jr.: Its not -- I think its $500,000 against all defendants.

Justice William J. Brennan: Two $500,000 award.

Mr. Samuel R. Pierce, Jr.: No, one $500,000.

Justice William J. Brennan: One against all --

Mr. Samuel R. Pierce, Jr.: Against all.

Justice William J. Brennan: Against all, oh, I see.

Mr. Samuel R. Pierce, Jr.: Yes sir.

Justice William J. Brennan: And then it was the time which -- then both -- both the individuals and the Times filed a -- motions for new trial, right?

Mr. Samuel R. Pierce, Jr.: Yes, sir.

Justice William J. Brennan: And then the Times put on the burden of postponing the argument.

Mr. Samuel R. Pierce, Jr.: They've adjourned it a couple of times, yes sir.

Justice Potter Stewart: But it's not -- it's not unheard of or when you have a verdict against two or more defendants or one of them to appeal and the other not to appeal.

Mr. Samuel R. Pierce, Jr.: Yes, but they both --

Justice Potter Stewart: If one to asked for a new trial and other --

Mr. Samuel R. Pierce, Jr.: But they both did --

Justice Potter Stewart: -- didn't ask for a new trial

Mr. Samuel R. Pierce, Jr.: They both did asked for new trials and they --

Justice Potter Stewart: (Inaudible)

Mr. Samuel R. Pierce, Jr.: And -- and the motions for a new trial were timely filed.

Justice Potter Stewart: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Understand that Your Honor.

Justice Potter Stewart: Yes, I do --

Mr. Samuel R. Pierce, Jr.: Yes, originally, they came and they'd filed and they appeared at the -- at the time they were required.

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

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

Justice William J. Brennan: No.

We might --

Mr. Samuel R. Pierce, Jr.: -- "I'll give you another 30 days."

Justice William J. Brennan: We might -- we might agree with you that it's nonsensical and -- and unusual but if that's the Alabama practice, that's the Alabama practice.

Don't you agree with that?

Mr. Samuel R. Pierce, Jr.: Well, I do not think that there is -- I -- I do not think that that is --

Justice William J. Brennan: The Alabama practice.

Mr. Samuel R. Pierce, Jr.: To be perfectly honest with you, the Alabama practice -- I think that when we bruise this -- when you bruise the -- or I shouldn't say bruise, when you go back and study the practice as you often have done in --

Justice William J. Brennan: Yes.

Mr. Samuel R. Pierce, Jr.: --such cases -- I think you'd find that this is not necessarily the practice.

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

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

Mr. Samuel R. Pierce, Jr.: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Samuel R. Pierce, Jr.: Exactly.

Exactly sir.

Justice Arthur J. Goldberg: There was no Alabama precedent.

You take the latter situation because the motion (Inaudible)

Mr. Samuel R. Pierce, Jr.: As we could not find any and they do not cite it here that's my statement.

Justice John M. Harlan: When the Times got the adjournment on the motion for a new trial, does it say it was speaking for all the defendants?

Unknown Speaker: No record.

Mr. Samuel R. Pierce, Jr.: No, there's no record of that.

There's nothing in the record on that.

Justice John M. Harlan: Were there any statements during the trial with exceptions taken by one defendant put in order to the benefit (Inaudible)?

Mr. Samuel R. Pierce, Jr.: No, no.

Justice John M. Harlan: (Inaudible)

Mr. Samuel R. Pierce, Jr.: I don't believe so.

No sir.

Justice Hugo L. Black: (Inaudible) as I understand it what you'd do with this whole (Inaudible) the court was in error in not passing on the motion for a new trial, it has to go back --

Mr. Samuel R. Pierce, Jr.: Well actually sir --

Justice Hugo L. Black: (Inaudible) in the merits just to decide on the -- let them act again on the motion for a new trial.

Mr. Samuel R. Pierce, Jr.: Well actually sir, we -- we think that this case should be decided on other grounds so it be totally reversed and not sent back for a new trial.

I bring this --

Justice Hugo L. Black: But I -- I said that because --

Mr. Samuel R. Pierce, Jr.: Yes sir.

Justice Hugo L. Black: (Inaudible) a great deal of your time on that --

Mr. Samuel R. Pierce, Jr.: Yes.

Justice Hugo L. Black: -- particular --

Mr. Samuel R. Pierce, Jr.: Yes.

Justice Hugo L. Black: -- point --

Mr. Samuel R. Pierce, Jr.: Well I -- I did --

Justice Hugo L. Black: (Inaudible)

Mr. Samuel R. Pierce, Jr.: I hadn't -- I hadn't planned to spend as much time as I did but it seems --

Justice Hugo L. Black: Well, I can understand --

Mr. Samuel R. Pierce, Jr.: -- to be an interesting subject to the justices of the Supreme Court.

Justice Hugo L. Black: I can understand --

Mr. Samuel R. Pierce, Jr.: Thank you very much.

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

Chief Justice Earl Warren: You may.

Mr. Nachman.

Argument of Roland Nachman, Jr.

Mr. Roland Nachman, Jr.: May it please Court, Mr. Chief Justice.

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

The record of which is not before this Court.

We take sharp exception.

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

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

If I may begin with General Rogers' argument --

Chief Justice Earl Warren: Was this statement considered by the Alabama Supreme Court?

Mr. Roland Nachman, Jr.: The -- the -- what -- what statement was it?

Chief Justice Earl Warren: The one you're -- that you're objecting to, bringing in to this case?

Mr. Roland Nachman, Jr.: The -- the -- one of -- by -- that the trial judge made?

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

Chief Justice Earl Warren: I say, was that considered in this case --

Mr. Roland Nachman, Jr.: No sir.

Chief Justice Earl Warren: -- by the Alabama Supreme Court?

Mr. Roland Nachman, Jr.: No sir.

It couldn't have been.

It -- it wasn't even in the record.

The case hasn't even been appealed.

Chief Justice Earl Warren: I thought you said -- I thought you said that this was dragged into the -- into the case before the Alabama Supreme --

Mr. Roland Nachman, Jr.: No, sir.

Chief Justice Earl Warren: -- Court and this Court.

Mr. Roland Nachman, Jr.: No, sir.

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

Chief Justice Earl Warren: Yes.

Mr. Roland Nachman, Jr.: -- but some of the points were raised for the first time before the Supreme Court of Alabama.

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

That hasn't even been appealed Your Honors.

That there -- there is no record of that case.

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

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

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

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

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

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

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

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

The Times had it prepared.

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

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

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

Justice William J. Brennan: (Inaudible)

Mr. Roland Nachman, Jr.: No, he did not Your Honor and there was nothing in -- this -- this is a court reporter's designation in a record that was transcribed months after this trial was over.

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

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

We certainly wouldn't have objected to it or -- or -- but it wasn't done.

Chief Justice Earl Warren: (Inaudible) the counsel, they don't object to this to -- to this transcript on the grounds that it was incorrect.

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

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

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

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

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

Mr. Roland Nachman, Jr.: No, Mr. Chief Justice.

That is not my understanding in the brief.

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

Chief Justice Earl Warren: Well, I'm -- I'm just talking --

Mr. Roland Nachman, Jr.: On --

Chief Justice Earl Warren: -- about what was said --

Mr. Roland Nachman, Jr.: In -- In --

Chief Justice Earl Warren: -- here in the argument.

Mr. Roland Nachman, Jr.: Yes sir.

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

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

Chief Justice Earl Warren: Were the Negro -- Negro lawyers in that case members of Lord (Voice Overlap) --

Mr. Roland Nachman, Jr.: No, sir.

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

Chief Justice Earl Warren: Yes.

Mr. Roland Nachman, Jr.: -- some Alabama counsel.

Chief Justice Earl Warren: Yes.

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

Chief Justice Earl Warren: But were they -- were they introduced in the same manner as to the --

Mr. Roland Nachman, Jr.: Yes.

Chief Justice Earl Warren: -- other Mr. -- Mr. --

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

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

On the question --

Chief Justice Earl Warren: Is that -- that's the only reference he makes to the -- to the lawyers.

Mr. Roland Nachman, Jr.: I -- I assume that that -- that's what he had in mind.

I -- I believe that that is the --

Unknown Speaker: Parts that are --

Chief Justice Earl Warren: Are there any -- are there any instances in the record where he does make a distinction between the Negro and the white lawyers?

Mr. Roland Nachman, Jr.: In the -- the preceding paragraph as I pointed out to the Court, there are -- some of the lawyers are called mister.

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

Chief Justice Earl Warren: How does he make a distinction in the paragraph before that you just mentioned?

Mr. Roland Nachman, Jr.: Now, the lawyers in this case are the firm of Steiner, Crum & Baker.

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

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

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

Unknown Speaker: I don't think --

Mr. Roland Nachman, Jr.: -- their names --

Unknown Speaker: (Inaudible)

Mr. Roland Nachman, Jr.: Well, --

Chief Justice Earl Warren: Where does he read -- where do -- when did they introduce the -- the Negro lawyers?

Mr. Roland Nachman, Jr.: Right after the -- the list of the -- the members of the --

Chief Justice Earl Warren: Of Lord Day & Lord.

Mr. Roland Nachman, Jr.: -- firm Lord Day & Lord.

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

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Not at all sir, I -- I welcome --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: -- the question --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Your Honor --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Your Honor, that -- that is, if I may say so respectfully sir, a partially correct reading of the record --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: For this reason sir -- that is one of the reasons.

The motion for a new trial lapsed.

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

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

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

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

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

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

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

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

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

And this is what happened to their motions.

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

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

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

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

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

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

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

Mr. Roland Nachman, Jr.: Your Honor, this -- this was not exactly the fact in -- in -- in this case.

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

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

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

Chief Justice Earl Warren: Yes.

Mr. Roland Nachman, Jr.: -- from -- they -- they were heard in March and -- and the trial concluded in -- in November.

There must've been at least that -- that many times.

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

Chief Justice Earl Warren: But -- but here --

Mr. Roland Nachman, Jr.: -- for a new trial --

Chief Justice Earl Warren: Here, you have -- do you have a case precisely in point here --

Mr. Roland Nachman, Jr.: What?

Chief Justice Earl Warren: -- with multiple defendants where -- where the action taken by them were not taken by them as the same as here.

Mr. Roland Nachman, Jr.: The cases that we've cited do not as I recall, deal with multiple defendants but there is no difference made in -- in Alabama practice where -- whether there's one or -- or several defendants.

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

It's -- it's a -- a well established rule of Alabama practice.

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

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

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

Mr. Roland Nachman, Jr.: No, sir.

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

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

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

Chief Justice Earl Warren: Did the -- did the judge continue the motions for the individuals?

Mr. Roland Nachman, Jr.: Yes sir.

Chief Justice Earl Warren: Why didn't --

Mr. Roland Nachman, Jr.: Once.

Chief Justice Earl Warren: Why didn't he, if they had lapsed that they hadn't -- hadn't appeared, why didn't he then say that they were -- they had lapsed?

Mr. Roland Nachman, Jr.: They had not lapsed the first time Your Honor --

Chief Justice Earl Warren: No, I'm talking about the second time.

Mr. Roland Nachman, Jr.: The -- the -- the second time there was -- there was no -- when -- when the matter came on for hearing, the trial judge announced that the individual petitioner's motions had lapsed and for -- I -- I was going say proceeded to hear the Times' motion.

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

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

Justice Tom C. Clark: (Inaudible)

Mr. Roland Nachman, Jr.: I beg your pardon sir?

Justice Tom C. Clark: The order (Inaudible) the Times -- at the time didn't mention the Times specifically or just the view (Inaudible)

Mr. Roland Nachman, Jr.: It was endorsed on their motion Your Honor by the trial court.

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

Justice Tom C. Clark: (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir, that's correct.

There was --

Justice Tom C. Clark: (Inaudible)

Mr. Roland Nachman, Jr.: It's -- it's by statute and by -- or -- or judicial decision, we've cited the statute and the decisions on -- as I say on -- in Footnote 4 on page 5 of our brief.

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

Justice Hugo L. Black: It was decisive in point that that --

Mr. Roland Nachman, Jr.: Yes sir, the --

Justice Hugo L. Black: -- the continuances -- that they must be kept alive?

Mr. Roland Nachman, Jr.: This -- the statute requires that they be filed within 30 days.

Justice Hugo L. Black: (Inaudible)

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

Justice Hugo L. Black: (Inaudible) to that effect.

Mr. Roland Nachman, Jr.: No sir, this is (Inaudible) --

Justice Hugo L. Black: That's a discretionary matter, is it not?

Mr. Roland Nachman, Jr.: No sir, it's not discretionary.

Justice Hugo L. Black: It's not?

Mr. Roland Nachman, Jr.: It --

Justice Hugo L. Black: The judge can't waived them?

Mr. Roland Nachman, Jr.: The -- the Alabama Supreme Court has held that this cannot be waived.

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

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

Justice Hugo L. Black: In all cases?

Did they --

Mr. Roland Nachman, Jr.: And --

Justice Hugo L. Black: -- tell that in all cases?

Mr. Roland Nachman, Jr.: In cases dealing with -- with the question of continuance of motions for new trial, yes sir.

Justice Hugo L. Black: (Inaudible)

Mr. Roland Nachman, Jr.: Yes, sir.

It's -- its -- its -- its entirely jurisdictional.

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

Justice John M. Harlan: (Inaudible)

Mr. Roland Nachman, Jr.: Yes, sir.

I -- I would think so --

Justice John M. Harlan: (Inaudible)

Mr. Roland Nachman, Jr.: No sir, I -- I don't think they do and -- and the underlying constitutional questions on the -- the nature of the ad and --

Justice John M. Harlan: (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir.

I -- I -- I assume that they are.

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

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

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

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

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

Now, it can't work both ways.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: We submit that the -- that the second alternative is the correct one.

That this was their publication --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: No sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Not at all sir --

Justice Arthur J. Goldberg: Well then what (Inaudible)

Mr. Roland Nachman, Jr.: They could've sent a letter to the New York Times to be published in the letters to the ad at the column of the New York Times saying, "This ad appeared in our columns, we had nothing to do with it, please publish this letter in the New York Times", and it would have had exactly the same circulation that this ad had and it would've cost the -- the price of a -- of a postage stamp.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Then, I think we would have quite a different situation.

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

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

Justice Arthur J. Goldberg: (Inaudible) statutory requirement.

Mr. Roland Nachman, Jr.: We -- we think it would have.

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

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

But we say --

Chief Justice Earl Warren: Have the courts so construe --

Mr. Roland Nachman, Jr.: -- it could've been --

Chief Justice Earl Warren: -- have the court so construed your statute?

Mr. Roland Nachman, Jr.: I don't --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Roland Nachman, Jr.: I don't of no -- I -- I don't know of any case right on point on this Your Honor.

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

Justice Arthur J. Goldberg: The mere construction (Inaudible)

Mr. Roland Nachman, Jr.: No, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: But --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Your Honor, there -- there was no occasion for such an instruction because they didn't do anything.

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

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

Justice Hugo L. Black: Mr. Nachman, I'm very much interested in the basic question argued by (Inaudible) as to evidence in connection with -- whether they were responsible for this.

Mr. Roland Nachman, Jr.: Alright sir.

Justice Hugo L. Black: It seems to me it divides the (Inaudible) into two parts.

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

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

I'd like to just --

Mr. Roland Nachman, Jr.: And I will retract my --

Justice Hugo L. Black: -- if it's alright with you to mention that and say, "First, was there and -- and is it your position that there was a -- from which the jury could find, they were responsible for it initially and if so, what is that evidence (Inaudible)

Mr. Roland Nachman, Jr.: Alright, sir.

I was just going to address myself to that.

First of all, their names were on the ad.

Secondly, a demand for retraction was sent to them.

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

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

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

In this case, publishing this defamatory statement.

Now, this is different from the question of retraction.

Justice Hugo L. Black: Now those -- there are only two.

Mr. Roland Nachman, Jr.: No, sir.

No.

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

Justice Hugo L. Black: Is he one of the defendants?

Mr. Roland Nachman, Jr.: No, sir.

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

Justice Hugo L. Black: (Inaudible)

Mr. Roland Nachman, Jr.: Well, it -- it may have been -- the letter came in to evidence as part of the answers to interrogatory, there was no objection to it and so --

Justice Hugo L. Black: But even so, you rely on that as substantive proof, they authorized their (Inaudible)

Mr. Roland Nachman, Jr.: The -- the letter was attached Your Honor as a -- as an -- an exhibit -- as an answer to one of the interrogatories which were propounded to the New York Times.

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

Justice Hugo L. Black: (Inaudible)

Mr. Roland Nachman, Jr.: And the answer was -- yes, sir but if the -- if these individual defendants did not object as they didn't object, the answer went into evidence and there was no request to restrict it to anybody.

There was no objection to it.

It went into evidence.

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

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

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

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

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

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

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

So we say that -- that --

Justice Hugo L. Black: Is that all?

Mr. Roland Nachman, Jr.: Then there was the ratification.

Justice Hugo L. Black: What I mean, before you get to the so-called ratification, is that all?

Mr. Roland Nachman, Jr.: Yes sir, though -- that -- that is the -- that that --

Justice Hugo L. Black: Did they examine -- take depositions of Randolph or summoned as a witness?

Mr. Roland Nachman, Jr.: No sir.

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

I mean, he -- he was -- he was not a --

Justice Hugo L. Black: During the trial?

Mr. Roland Nachman, Jr.: No, sir.

Nor was he produced by the defendants

Justice Hugo L. Black: But you don't --

Mr. Roland Nachman, Jr.: -- in this case.

Justice Hugo L. Black: -- come to Alabama rule that wouldn't make a hearsay statement (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir.

If --

Justice Hugo L. Black: Alright.

Mr. Roland Nachman, Jr.: If a hearsay -- if any kind of testimony, hearsay or otherwise is -- is --

Justice Hugo L. Black: But this, you have no testimony from him.

Mr. Roland Nachman, Jr.: Oh, oh excuse me sir.

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

And it went to the jury --

Justice Hugo L. Black: Was it then refused as evidence to prove that these people had done what Randolph said (Inaudible)?

Mr. Roland Nachman, Jr.: Yes sir.

And there was no objection to it by these --

Justice Hugo L. Black: Did you state that was the purpose for which he was interviewed?

Mr. Roland Nachman, Jr.: Yes sir, the -- the --

Justice Hugo L. Black: At the time it was interviewed?

Mr. Roland Nachman, Jr.: The question was read.

The question was read to the jury.

Justice Hugo L. Black: It was done.

Mr. Roland Nachman, Jr.: What was the authorization for the use of the names on the ad, clearly indicating that this was a purpose for which the answer would then be --

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

Mr. Roland Nachman, Jr.: That was the same case Your Honor --

Justice Hugo L. Black: Well, but they were different defendants.

Mr. Roland Nachman, Jr.: Yes, sir.

Justice Hugo L. Black: And it's -- some evidence could be admissible against some and not against others.

Mr. Roland Nachman, Jr.: If there was a proper request Your Honor to restrict, but if --

Justice Hugo L. Black: You've got to decide or restrict hearsay evidence when --

Mr. Roland Nachman, Jr.: Yes sir.

If -- if -- if -- if somebody introduces hearsay evidence and there's no objection --

Justice Hugo L. Black: If that person (Inaudible) against the New York Times, they're the ones (Inaudible) --

Mr. Roland Nachman, Jr.: No sir, we didn't.

We -- we did not restrict the introduction of it.

Justice Hugo L. Black: No.

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

Mr. Roland Nachman, Jr.: Not specific.

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

We simply introduced, we -- the interrogatory --

Justice Hugo L. Black: But that's the third prong, that's the third prong that you're proving against them.

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

Mr. Roland Nachman, Jr.: We have the -- the -- the fact that their names were on the ad and we have the fact that they --

Justice Hugo L. Black: (Voice Overlap)

Mr. Roland Nachman, Jr.: -- failed to reply to the -- the inculpatory statement which was made in the demand for retraction.

Justice Hugo L. Black: Now, assume --

Mr. Roland Nachman, Jr.: And that is of --

Justice Hugo L. Black: (Inaudible) the fact that a man's name appeared on an ad was enough to hold him libel for half a million dollars.

Mr. Roland Nachman, Jr.: We -- we don't say that that's all we have sir.

Justice Hugo L. Black: Now, you wouldn't -- you said they wouldn't say that.

Mr. Roland Nachman, Jr.: And -- no, sir.

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

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

Justice Hugo L. Black: On the other side, did they deny they've given authority?

Mr. Roland Nachman, Jr.: Yes sir.

They certainly --

Justice Hugo L. Black: (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir, they did.

Justice Hugo L. Black: All of them?

Mr. Roland Nachman, Jr.: All of them.

Justice Hugo L. Black: But if you have these items that you've mentioned, besides from your ratification, have these items that you've mentioned, which includes the letter from Randolph?

Mr. Roland Nachman, Jr.: Yes.

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

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

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

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

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

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

We didn't know anything about it.

Mr. Commissioner --

Justice Arthur J. Goldberg: (Inaudible) that's your argument.

Mr. Roland Nachman, Jr.: No sir.

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

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

We say that if somebody sends a letter saying, "You published a defamatory statement about me", and -- and the recipient hadn't published it.

Didn't know anything about it --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: He -- his -- his -- he should've answered --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir.

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

Chief Justice Earl Warren: Would that have satisfied your statute if he had -- if he had just written a letter to you and said, "I deny that I had anything to do with that advertisement."

Mr. Roland Nachman, Jr.: I'm not talking about the retraction statute now, Mr. Chief Justice.

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

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

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

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

We had nothing to do with it.

Justice Arthur J. Goldberg: (Inaudible) as I recall that (Inaudible)

Mr. Roland Nachman, Jr.: No, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Not where there is --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Not where there is a demand under Alabama law.

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: -- that B was speeding.

Justice Arthur J. Goldberg: Is that your argument (Inaudible)

Mr. Roland Nachman, Jr.: No sir.

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

Unknown Speaker: (Inaudible)

Mr. Roland Nachman, Jr.: -- that there was a publication.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: I -- I don't know sir, we cite a Massachusetts case in -- in our -- our brief, Gould against Kramer which is on all of course with a --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Well, Your Honor, we submit that it is and has been.

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

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

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

Justice Arthur J. Goldberg: I would suggest so far as I understand the case (Inaudible)

Mr. Roland Nachman, Jr.: Your Honor, we submit that -- that -- that there -- there are --

Justice Arthur J. Goldberg: (Voice Overlap)

Mr. Roland Nachman, Jr.: -- we respectfully and in addition to that on the question of ratification which we also contend provided a basis for the judgment against these individual defendants.

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

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

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

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

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

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

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

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

And we say --

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

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

Mr. Roland Nachman, Jr.: Your Honor, of course -- obviously, I'm not familiar with -- with the content of the letter but this letter sir --

Chief Justice Earl Warren: Well, they were --

Mr. Roland Nachman, Jr.: -- specified --

Chief Justice Earl Warren: They're far worse that this one.

Mr. Roland Nachman, Jr.: But -- but -- this letter Mr. Chief Justice, specified a particular publication by date, they quoted from a part of it.

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

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

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

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

Chief Justice Earl Warren: Well, I'm willing to make it just as specific as you want it to be made, where in fact, the -- the person I've been talking about has made no such statement.

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

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

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

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

Chief Justice Earl Warren: Charged, now when you say charged, are you -- you mean accused?

Mr. Roland Nachman, Jr.: Yes sir.

In -- in --

Chief Justice Earl Warren: Accused by an individual.

Mr. Roland Nachman, Jr.: Yes sir.

Chief Justice Earl Warren: Not -- not charged in -- in court.

Mr. Roland Nachman, Jr.: (Inaudible) -- oh no sir, I didn't charged in court --

Chief Justice Earl Warren: Yes.

Mr. Roland Nachman, Jr.: -- or in any criminal sense --

Chief Justice Earl Warren: Yes.

Mr. Roland Nachman, Jr.: -- but -- but --

Chief Justice Earl Warren: Yes.

Mr. Roland Nachman, Jr.: -- receives a lot of such as these or demand for retraction saying, you --

Chief Justice Earl Warren: Yes.

Mr. Roland Nachman, Jr.: -- you published this about me in a -- in an ad in the New York Times on such and such a date saying doesn't so, and quoting from part of the -- of -- of the publication, we demand that you retract it.

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

He didn't -- he didn't know anything about it, had -- had no connection with it.

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

My name was used without authorization.

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

Justice Byron R. White: Could you say it's a -- it's enough evidence on the -- the fact the publication to get to the jury?

Mr. Roland Nachman, Jr.: Yes sir, we have this scintilla rule.

Justice Byron R. White: There's no other evidence, this is enough evidence?

Mr. Roland Nachman, Jr.: Alabama Your Honor has the scintilla rule.

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

Justice Byron R. White: (Voice Overlap) this is enough to survive a motion for a directed verdict or motion for dismissal poses it -- poses the plaintiff's case?

Mr. Roland Nachman, Jr.: It -- it is enough to get to the jury.

Now, Alabama --

Justice Byron R. White: (Inaudible) a jury verdict.

And (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir.

Justice Byron R. White: -- jury verdict.

Mr. Roland Nachman, Jr.: Yes sir.

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

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

Justice Byron R. White: (Inaudible)

Mr. Roland Nachman, Jr.: -- can't even consider it.

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

That also is enough to sustain a jury verdict.

Mr. Roland Nachman, Jr.: Yes sir.

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

Justice Byron R. White: But you had the scintilla rule?

Mr. Roland Nachman, Jr.: We do sir.

Justice Byron R. White: On getting to the jury?

Mr. Roland Nachman, Jr.: On getting to the jury.

Justice Byron R. White: Yes, but --

Mr. Roland Nachman, Jr.: But Alabama says that even though you can get to the jury, the Court can still set aside a verdict --

Justice Byron R. White: (Voice Overlap)

Mr. Roland Nachman, Jr.: -- being against the great weight of the evidence --

Justice Byron R. White: (Voice Overlap) common law rule for --

Mr. Roland Nachman, Jr.: That -- that's right.

Justice Byron R. White: -- reviewing a jury -- jury verdict then?

Mr. Roland Nachman, Jr.: That -- that's right sir.

Justice Byron R. White: If it's against the evidence, you'd set it aside?

Mr. Roland Nachman, Jr.: That's right sir, but in --

Justice Byron R. White: And in -- in your Supreme Court too.

Mr. Roland Nachman, Jr.: Yes.

Yes sir.

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

Justice William J. Brennan: (Inaudible)

Mr. Roland Nachman, Jr.: That -- that's one against the great weight of the evidence is usually the one.

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

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

Justice John M. Harlan: (Inaudible) to go into a criminal libel prosecution under your Alabama law, what do you have to establish to establish criminal libel?

Mr. Roland Nachman, Jr.: Well you have to --

Justice John M. Harlan: Supposing you've prosecuted the Times for criminal libel in this case, what would you have had to establish?

Mr. Roland Nachman, Jr.: We would have had to establish that this was a libelous publication and --

Justice John M. Harlan: Willful?

Mr. Roland Nachman, Jr.: -- and that it was false and defamatory.

Justice John M. Harlan: Malice?

Mr. Roland Nachman, Jr.: And -- well, we would've had a presumption of malice or -- or -- which could be of course rebutted by evidence from the defendant.

Justice John M. Harlan: Presumption of malice in a criminal case?

Mr. Roland Nachman, Jr.: From falsity, yes sir.

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

Justice John M. Harlan: What was the penalty of that?

Mr. Roland Nachman, Jr.: I believe its $500, Your Honor.

Chief Justice Earl Warren: Irrespective of the character of the libel?

Mr. Roland Nachman, Jr.: I -- I think that's correct, I don't believe that -- that there are gradations of -- of penalty under the Alabama criminal libel statute.

Chief Justice Earl Warren: (Inaudible) is there imprisonment connected with it or just a fine of $500?

Mr. Roland Nachman, Jr.: I believe its fine and possibly up to -- is it six months?

It's a -- it's a misdemeanor I think under -- under Alabama Criminal Law.

Justice John M. Harlan: (Inaudible)

Mr. Roland Nachman, Jr.: No sir.

There would be no --

Justice John M. Harlan: Cooperation?

Mr. Roland Nachman, Jr.: That -- that's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: It does not sir.

It certainly does not.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: And on that question I would also like to correct what I'm sure was an inadvertent error by General Rogers on the question of when there was an attachment -- whether an attachment had been made after there was an -- an attempt to review in this Court.

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

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

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

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

Unknown Speaker: (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir, but they were -- before there was even an appeal to the Alabama Supreme Court, they came after the motions for a new trial lapsed and --

Justice Tom C. Clark: (Inaudible) of execution on the judgment, (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir.

There were executions in the judgment.

Justice Tom C. Clark: There wasn't any supersedeas bonds filed?

Mr. Roland Nachman, Jr.: There was no supersedeas bond at --

Justice Tom C. Clark: (Inaudible) go ahead and get it in execution.

Mr. Roland Nachman, Jr.: That's right sir.

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

Justice Hugo L. Black: You mean, what has been paid to other people (Inaudible)

Mr. Roland Nachman, Jr.: No sir.

It's been paid in to Court.

Justice Hugo L. Black: (Inaudible) in Court.

Mr. Roland Nachman, Jr.: It's in the Court, yes.

Justice Byron R. White: How much this amounted to?

Mr. Roland Nachman, Jr.: I'm guessing Your Honor, I believe it's around $6000 but I -- I -- it -- it -- it's somewhere in that -- in that neighborhood.

I -- I -- I don't know the -- remember the precise amount but I think that's reasonably accurate.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: Your Honor, we -- we think it's a -- it's a fairly serious matter when -- when a public official says to a person, "You published in -- the first one in Times" --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: We -- we -- we think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Roland Nachman, Jr.: We don't think that either on this issue or on ratification Your Honor, a preexisting relationship is required.

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

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

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

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

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

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

Justice Hugo L. Black: Didn't they challenge the constitutionality of the holding in libel for libel (Inaudible).

You mean that's not in this case?

Mr. Roland Nachman, Jr.: You mean the nature of the publication is --

Justice Hugo L. Black: Yes.

Mr. Roland Nachman, Jr.: -- libelous?

Yes sir.

I -- as the --

Justice Hugo L. Black: (Inaudible) the First Amendment (Inaudible)

Mr. Roland Nachman, Jr.: Excuse me sir.

I -- I -- I should have made --

Justice Hugo L. Black: Your main argument --

Mr. Roland Nachman, Jr.: -- that clear, in addition to the matters that were involved in the Times case.

I -- I should have made that clear.

Unknown Speaker: (Inaudible)

Mr. Roland Nachman, Jr.: Yes sir, the --

Unknown Speaker: (Inaudible)

Mr. Roland Nachman, Jr.: That -- that's right sir.

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

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

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

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

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

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

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

Justice John M. Harlan: (Inaudible) the case in Alabama in criminal libel.

It can't do it quickly while --

Mr. Roland Nachman, Jr.: Your Honor we have --

Justice John M. Harlan: (Inaudible)

Mr. Roland Nachman, Jr.: I -- I -- I don't have offhand, I'll be glad to supply a memorandum on that if -- Mr. Justice if -- if -- if you would like.

I -- I don't have it at my fingertips the leading case on --

Justice John M. Harlan: (Inaudible)

Mr. Roland Nachman, Jr.: -- criminal libel but I --

Chief Justice Earl Warren: You may.

Mr. Roland Nachman, Jr.: -- I will be glad to do that.

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

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

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

Chief Justice Earl Warren: What you told us a little while ago that it was not tried as a joint case.

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

Mr. Roland Nachman, Jr.: No sir.

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

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

It was tried as a joint case, yes sir.

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

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

Two of them resided in Montgomery.

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

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

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

We ask that both these cases be affirmed.

Thank you.

Rebuttal of William P. Rogers

Mr. William P. Rogers: Your Honor, I just have a --

Chief Justice Earl Warren: General Rogers.

Mr. William P. Rogers: -- one or two brief comments.

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

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

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

Now, the record is just the opposite from that.

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

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

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

I thought he said --

Mr. William P. Rogers: Well, yes he did --

Justice Hugo L. Black: (Inaudible)

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

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

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

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

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

His testimony was that he didn't know.

In other words, he didn't say, "Yes, the names were on the list."

He said, "I don't know.

I don't have any recollection."

So there wasn't any conflict of testimony on the --

Justice Hugo L. Black: Did he say something about a second list or -- or --

Mr. William P. Rogers: No, that's what he was talking about.

What happened --

Justice Hugo L. Black: Where is that in the record?

Mr. William P. Rogers: I don't know.

I don't know of --

Justice Hugo L. Black: His name is Redding?

Mr. William P. Rogers: Yes, Your Honor.

I can give you the --

Justice Hugo L. Black: That's alright.

Mr. William P. Rogers: The page number is 771 and Mr. Redding said that he did not know.

So there is no conflict at all.

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

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

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

What if he -- if he doesn't rely in the statute as soon as they were served with the complaint, they said they did not authorize it then they -- they all gave depositions and then new depositions.

They said they did not authorize it.

They didn't even know anything about it.

So very quickly after they received the letters, they made it perfectly clear to the public and to Mr. Sullivan and Mr. Nachman that they had no connection at all with this advertisement.

So that the arguments he makes -- well, interesting, really are -- I think designed to deceive the Court.

The fact of the matter is these petitioners are here today because they're Negroes and because they've been leaders in the fight for civil rights.

That's all there is to this case.

Now, he -- when -- when Justice Goldberg asked him about the cases in -- in Alabama which he relied, it seemed to me he -- he didn't answer that one.

The fact of the matter is there are three cases, Burns against Campbell, which is 71 Alabama 271, Belcher Lumber against York, and there's Fidelity & Casulty against Beeland.

Now, in every one of those cases, it's made perfectly clear that the law is that in a tort case, mere silence does not make you guilty of a tort.

There is no case in Alabama that suggest that and Mr. Nachman didn't really -- he just -- adopt the issue when you asked.

The fact of the matter is in that -- in the -- in the Beeland case, the Court said that a man cannot make evidence for himself by writing a letter containing the statement he wishes to prove and then claim failure to answer as omission.

That's a settled law of Alabama.

He -- he cited the Birmingham News case.

The Birmingham News case Your Honor is a case where the Birmingham News wanted to have a shopping guide published and it employed a person, gave him an office in the Birmingham News Company.

He went out and solicited ads.

He had the shopping guide printed.

The printing company sued the Birmingham News because they weren't paid for the printing.

They had set the bills to the Birmingham News because they thought it was for the Birmingham News.

And the Birmingham News didn't deny the fact that he was an agent.

He had an office in the building.

He was doing their work.

And the Court said in that case, because of the relationship with the party and because it certainly appeared that he was not an independent contractor that their failure to claim that he wasn't after they received the bills made them liable for the work that they had done in behalf of the Birmingham News.

Now that's not this case.

And when counsel states that case, I think he's trying to mislead the Court.

In conclusion, I'd like merely to say this that this case has I think very broad significance because if -- if it should be affirmed or -- let's see there are four other cases now pending where a request for damages amount to $2,500,000.

There are cases pending against CBS, damages amount to $1,300,000.

There are other cases against the New York Times for a request of damages of $1,800,000.

And if this case should stand in the cause the civil rights will be set back a great many years.

Chief Justice Earl Warren: We'll recess now.