Brief for Respondent

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Brief for Respondent

Brief for Respondent

In the Supreme Court of the United States
October Term, 1963
No. 39

THE NEW YORK TIMES COMPANY, PETITIONER,
V.
L. B. SULLIVAN, RESPONDENT

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA
BRIEF FOR RESPONDENT

Steiner, Crum & Baker,
1109-25 FIRST NATIONAL BANK BUILDING, MONTGOMERY 1, ALABAMA,
Calvin Whitesell,
MONTGOMERY, ALABAMA, OF COUNSEL.
Robert E. Steiner III,
Sam Rice Baker,
M. Roland Nachman Jr.,
ATTORNEYS FOR RESPONDENT

Index

Questions Presented

Statutes Involved

Statement

  1. Merits
  2. Jurisdiction
    1. General Appearance
    2. Validity of Service of Process on The New York Times

Summary of Argument

Argument

  1. The Constitution Confers No Absolute Immunity to Defame Public Officials
    Libelous Utterances Have No Constitutional Protection
    The Advertisement Was Libelous Per Se
    Damages Awarded by the Jury May Not Be Disturbed
  2. There Is No Ground for Reviewing a Jury Determination That the Advertisement Was "Of and Concerning" the Plaintiff
  3. This Case Provides No Occasion for Excursions From This Record and From Accepted Constitutional Standards
  4. The Times Was Properly Before the Alabama Courts

Conclusion

Certificate

Appendix A

Respondent adopts petitioner's statement of "Opinions Below" and "Jurisdiction."

QUESTIONS PRESENTED

1. Does a newspaper corporation have a constitutionally guaranteed absolute privilege to defame an elected city official in a paid newspaper advertisement so that the corporation is immune from a private common law libel judgment in a state court in circumstances where, because of the admitted falsity of the publication, the newspaper is unable to plead or prove state afforded defenses of truth, fair comment, privilege or retraction (to show good faith and eliminate punitive damages), and where the corporation has retracted the same false material for another admittedly "on a par" with the city official?

2. When the only claimed invasion of a corporation's constitutional rights is that a city official successfully sued it for damages in a private civil action for libel in a state court in circumstances described in Question 1, and when the corporation does not contend that the state trial proceedings have been unfair, has there been an abridgement of the corporation's constitutional rights under the First and Fourteenth Amendments?

3. Are libelous utterances in a paid newspaper advertisement within the area of constitutionally protected speech and press?

4. When an admittedly false newspaper advertisement published in circumstances described in Question 1 charges that city police massively engaged in rampant, vicious, terroristic and criminal actions in deprivation of rights of others, is a state court holding in a private common law libel action that such an utterance is libelous as a matter of state law—leaving to the jury the questions of publication, identification with the police commissioner, and damages—an infringement of the newspaper's constitutional rights?

5. When a paid newspaper advertisement published in circumstances described in Question 1 contains admittedly false charges described in Question 4 about police action in a named city, may this Court consistently with its decisions and the Seventh Amendment review on certiorari a state jury finding, in a trial concededly fair, that the publication is "of and concerning" the city police commissioner whose name does not appear in the publication, and an award of general and punitive damages to him, when this state jury verdict embodied in a final state judgment has been approved by the state's highest appellate court?

6. May this Court consistently with its decisions and the Seventh Amendment re-examine facts tried by a state jury in a trial concededly fair, when those findings have been embodied in a final state judgment affirmed by the highest state appellate court, and when review is sought on assertions that the verdict is wrong and the general and punitive libel damages merely excessive?

7. When a foreign corporation makes a general appearance in a private state civil action against it, according to state law consistent with the majority view of all states, is there an adequate independent state ground as to jurisdiction over this foreign corporation?

8. Even if there had been no general appearance as described in Question 7, when a foreign newspaper corporation continuously and systematically gathers news by resident and transient correspondents, solicits advertising in person and by mail, and distributes its newspapers for sale in the forum state, and when some of these activities are incident to the cause of action in suit, has this foreign corporation sufficient contacts with the forum state so that suit against it is fair in accordance with decisions of this Court so explicit as to leave no room for real controversy?

STATUTES INVOLVED

Statutes referred to in this brief are contained in an appendix hereto.

STATEMENT

In the New York Times of March 29, 1960, there appeared a full-page advertisement, "warmly endorsed" by the four petitioners in No. 40, entitled, "Heed Their Rising Voices."1 Charging generally "an unprecedented wave of error," the advertisement said of Montgomery:

"In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.

* * * * * * *

"Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with 'perjury'—a felony under which they could imprison him for ten years."

Respondent, police commissioner of Montgomery, asked $500,000 as damages for this libel from the New York Times and the four "warm endorsers."

After a lengthy hearing the trial court held on August 5, 1960, that the New York Times was amenable to suit in Alabama. It had made a general appearance the court found. And, moreover, its business activities in Alabama, some of which had given rise to the cause of action, were sufficient contacts under due process standards to permit service on a Times string correspondent residing in Alabama, and on the Secretary of State under the Alabama Substituted Service Statute2 (R. 49–57).

1 App. B of Petitioner's brief, p. 97.

2 Title 7, § 199 (1), Code of Alabama. The Times has conceded throughout adequate notice and opportunity to defend.

After its demurrers had been overruled (R.108) the Times filed six separate pleas to the complaint (R. 99–105). Although truth regardless of motive is a complete defense to a libel suit in Alabama (see infra), the Times and its codefendants filed no plea of truth. Although privilege and fair comment are defenses in Alabama in appropriate circumstances (see infra), the Times and its co-defendants did not plead these defenses. At the conclusion of the trial a jury returned a verdict against all defendants for $500,000, and the trial court entered a judgment against all defendants in this amount.3 Petitioner does not assert here any due process defects in these trial proceedings, and does not attack the motives and conduct of the jury.

The Times filed a motion for new trial, which was overruled (R. 970); the petitioners in No. 40 filed motions for new trial, but allowed them to lapse (R. 984, 998, 1013, 1028).

The Alabama Supreme Court affirmed the judgment as to all defendants (R. 1180).

The Times complains in this Court: (1) The holdings of the Alabama courts that the publication was libelous per se and the jury verdict that it was "of and concerning" respondent abridged its guaranties under the 1st and 14th Amendments, and (2) it was not amenable to suit in Alabama.

I. Merits

Since the Times has told this Court that the whole libel rests on two discrepancies—mere "exaggerations or inaccuracies"4 in the course of an "impersonal"5 discussion "plainly" not meant as an attack on any individual,6 respondent will state this case.7

This lawsuit arose because of a wilful, deliberate and reckless attempt to portray in a full-page newspaper advertisement, for which the Times charged and was paid almost $5,000, rampant, vicious, terroristic and criminal police action in Montgomery, Alabama, to a nationwide public of 650,000. The goal was money-raising. Truth, accuracy and long-accepted standards of journalism were not criteria for the writing or publication of this advertisement. The defamatory matter (quoted R. 580–81) describes criminal police action because some college students innocently sang "My Country 'Tis of Thee" from the Alabama State Capitol steps. The innocent singers were expelled from school; police ringed their campus by truckloads armed with shotguns and tear gas;8 and their dining hall was padlocked to starve the students into submission. All statements charge violation of the students' rights.

The Times is not candid when it tells this Court (Brief p. 7) that "the only part" of the foregoing statement "that Respondent thought implied a reference to him was the assertion about 'truckloads of police.' " Respondent made entirely clear that he considered the padlocking charge—and all other charges except expulsion—as applicable to him as well (R. 716). The Times is also absolutely inaccurate when it tells this Court that respondent's evidence "consisted mainly" (Brief p. 7) of a story by Sitton and a report by McKee. Respondent's evidence also included the Times' answers to interrogatories; respondent's own testimony, and that of his numerous witnesses; the testimony of all of the Times' trial witnesses; the statements and judicial admissions of its attorneys; and the testimony of John Murray who testified for the individual petitioners.

3 Of course, this joint judgment is not collectible more than once. The facts giving rise to liability of petitioners in No. 40 will be related in a separate brief.

4 Brief, p. 33.

5 Brief, p. 32.

6 Ibid.

7 Respondent, accordingly, will not dignify beyond this comment the "statement" contained in the briefs of the friends of the Times. They are literally second editions of the advertisement and do not even purport to be confined to accurate summaries of the record.

The American Civil Liberties Union Brief, for example, draws most of its statement from newspaper articles, offered by the Times on its motion for new trial, and excluded below. The correctness and propriety of the ruling are not challenged. The brief simply cites the material as evidence anyway. Such practice presumably fosters the "fair trials" to which the organization is "devoted" (Brief, pp. 1 and 2). The other amici briefs are consumed with unrelated cases, entirely outside the record, and with inaccurate and incomplete characterizations of and quotations from a scant fraction of the testimony in this case.

8 The Times apparently hopes to de-emphasize the ad's false allegations that the police were armed with shotguns and tear gas. It describes the ad as speaking of "truckloads of armed police …" (Brief, pp. 5 and 62. See also p. 8).

9 The Times argues here, remarkable to say, that the jury should have disregarded Aaronson's testimony, because another witness, Redding, was not interrogated on the point (Brief, p. 17).

The advertisement in another paragraph charges that the perpetrators of the foregoing alleged barbarisms were the same persons who had intimidated Martin Luther King; bombed his home; assaulted his person; and arrested him. All statements charge criminal conduct. Although the Times' brief tells this Court that the pronoun "they" does not point to respondent, and that such a jury finding is "absurd" (Brief p. 33), the jury was able to make the connection from the Times' own witness, Gershon Aaronson. He conceded that the word "they" as it appeared repeatedly in the quotation in the ad "refers to the same persons" (R. 745).9 Accordingly, the same police and the same police commissioner committed or condoned these alleged acts. And a jury unanimously agreed with Aaronson.

In a vain attempt to transfer these devastating statements from the constitutionally unprotected area of socially useless libel, where they belong, to the arena of constitutionally protected speech, where they obviously have no place, the Times and its friends employ various soothing phrases to describe the advertisement. It is called "political expression" and "political criticism" (pp. 29 and 30) of "public men" (p. 41); "the daily dialogue of politics" (p. 50); "a critique of government as such"; "criticism of official conduct" and "of the government" (pp. 30 and passim); "the most impersonal denunciation of an agency of government" (p. 50); a "recital of grievances and protests against claimed abuse dealing squarely with the major issue of our time" (pp. 31 and 57); "an expression which is merely wrong in fact with denigrating implications" (p. 54); an "appeal for political and social change" (A.C.L.U. brief, p.13); a "critique of attitude and method, a value judgment and opinion" (A.C.L.U. brief, p. 29).

But the ordinary, unsophisticated reader of this ad was bound to draw the plain meaning that such shocking conditions were the responsibility of those charged with the administration of the Montgomery Police Department—respondent and the other two city commissioners. Any other conclusion is impossible. The Times itself can suggest no other reference, except to the police generally, and police are under the direct control and supervision of respondent. Indeed, the Times brief (p. 44) characterizes the ad as "criticism of an elected political official …" and observes that this official should be hardy enough to take it without suing for libel.

A description of such conduct, at war with basic concepts of decency and lawful government, inevitably evokes contempt, indignation, and ridicule for the person charged with the administration of police activities in Montgomery. And obviously this was the precise intent of the authors of the advertisement. One of them, John Murray, so testified.10

Significantly, none of the Times' witnesses, and none of the petitioners in No. 40, all of whom testified, presented any evidence designed to show that the statements from the ad were true. Certainly, the individual petitioners in No. 40, two of whom lived in Montgomery, had no reason to withhold testimony harmful to respondent.

The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the testimony of a newspaper editor (R. 602, et seq.); a real estate and insurance man (R. 613, et seq.); the sales manager of a men's clothing store (R. 634, et seq.); a food equipment man (R. 644, et seq.); a service station operator (R. 649, et seq.); and the operator of a truck line for whom respondent had formerly worked (R. 662, et seq.). Each of these witnesses stated that he associated the statements with respondent, and that if he had believed the statements to be true, he would have considered such conduct reprehensible in the extreme.11

10 "Q. (After reading the first paragraph quoted in the complaint) Was that the way that paragraph was when you first got it with the memorandum or did you give it that added touch for appeal?

"A. Well, it would be a little difficult at this time to recall the exact wording in the memorandum but the sense of what was in the memorandum was certainly the same as what is in here. We may have phrased it a little differently here and there.

"Q. I see. Your purpose was to rev it up a little bit to get money, I take it.

"A. Well, our purpose was to get money and to make the ad as—to project it in the most appealing form from the material we were getting.

"Q. Whether it was accurate or not really didn't make much difference, did it?

"A. Well, that did not enter the—it did not enter into consideration at all except we took it for granted that it was accurate—we took it for granted that it was accurate—they were accurate—and if they hadn't been—I mean we would have stopped to question it. I mean we would have stopped to question it—We had every reason to believe it" (R. 814–815).

11 One stated, for example: "I don't think there is any question about what I would decide. I think I would decide that we probably had a young Gestapo in Montgomery" (R. 646).

12 For example, Blackwell testified (R. 619): "He called me into his office and showed me this ad and at that time I indicated that I had seen the ad before but I don't remember just where and under what circumstances …"

Price testified: " … I saw copies of the two paragraphs myself prior to that time" (R. 648).

Respondent's counsel himself asked Parker whether he had seen the ad "before in my office" (R. 649) but not whether this was the first occasion; and counsel for the Times did not cross-examine on the point, presumably because its counsel had also talked to Parker before the trial (R. 651).

Unless the Times is asking this Court to assume the functions of a jury and to weigh the credibility of this relevant testimony, nothing could be more irrelevant than the time and place of the witnesses' first inspection of the ad. Even so, the Times has had to adjust the testimony to make its dubious point,12 and it seems to forget that all of its witnesses were its own employees.

Undoubtedly the demonstrable falsity of the statements prevented pleas of truth or privilege or fair comment. Indeed, the Times published a retraction of the same paragraphs for Governor Patterson on May 16, 1960 (R. 596 and 1958–1961):

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

The Times asked its Montgomery string correspondent, McKee, for an investigation. On April 14, 1960, five days before suit was filed, McKee advised that the statements in the first quoted paragraph of the ad were false; and that King had been arrested twice by the Montgomery police for loitering and speeding and twice by the Sheriff's office for violation of the State boycott law and on charge of income tax falsification—a charge on which he was subsequently acquitted. Nevertheless, the Times, instead of retracting, wrote respondent that with the exception of the padlocking statement the rest of the quoted material was "substantially correct" (R. 589).

Later the Times directed another investigation by its regional correspondent, Claude Sitton. While the Times now speaks in this Court of "discrepancies" and "inaccuracies" in two instances, Sitton reported on May 4, 1960, that the first quoted paragraph of the advertisement "appears to be virtually without any foundation" (R. 594). There was no suggestion of involvement of respondent or any other city commissioner, or public employee under their charge, in the matters in the second quoted paragraph.

The Times then retracted for Governor Patterson, but not for respondent. The Times attempted to explain its inconsistency:

"The defendant … felt that on account of the fact that John Patterson held the high office of Governor of the State of Alabama and that he apparently believed that he had been libeled by said advertisement in his capacity as Governor of the State of Alabama, the defendant should apologize" (R. 595–596).

When confronted with this answer to interrogatories, Harding Bancroft, then secretary of The New York Times, could give no reason for the different treatment of Governor Patterson and respondent. They were "on a par." But there was a retraction for Patterson and not for respondent (R. 779).13

Undisputed trial testimony showed that respondent and the other commissioners and the Montgomery police had nothing to do with the King bombings; that a city detective had helped dismantle a live bomb which had been thrown on King's front porch (R. 685); and that the department had exerted extraordinary efforts to apprehend the persons responsible (R. 686–687). The occurrence of this event before respondent took office simply compounds the libelous nature of this advertisement which seeks to portray such matters as current actions which "they" took. The ordinary reader, chronologically unsophisticated, would clearly associate the acts with the current city government.

Another police officer testified without contradiction that no one had assaulted King when he had been arrested for loitering outside the courtroom (R. 692–693).

Frank Stewart, State Superintendent of Education, testified without contradiction that students had not been expelled from school for singing on the capitol steps (R. 700).

13 The Times brief, in its lengthy attempt to explain its inconsistency (pp. 21–22), presents an incomplete and inaccurate summary of Bancroft's testimony. It omits the following (R. 779):

"Q. Is there anything contained in this sentence in the Interrogatories that I just read to you which differentiates in any manner the position of Governor Patterson in his suit with Commissioner Sullivan in the present suit?

"A. As I read the thing, the answer is no.

"Q. They are put on a par, aren't they, Governor Patterson and this Plaintiff?

"A. Yes.

"Q. But there was a retraction for Governor Patterson and there was no retraction for this Plaintiff. That is correct, isn't it?

"A. That is correct."

The uncontroverted testimony of falsity was so overwhelming that counsel for the Times repeatedly brought out from witnesses that the statements quoted from the ad were not true. Moreover, he stated that truth was not in issue in the case because it had not been pleaded (A compendium of counsel's statements is in Appendix B of the brief in opposition, pp. 48–52). Counsel would not and could not have made such statements if the quoted portions of the ad had been true or if they had contained only a few "discrepancies" or "exaggerations."

Undeterred, however, in the teeth of these judicial admissions, Harding Bancroft maintained to the end an equivocal position about the correctness of the ad, with the exception of the padlocking statement.14 The Times' brief, on the contrary, candidly recites (pp. 62–65) a chronicle of the ad's falsities in addition to the padlocking statement.

Because of this testimony, when the Times six months before had retracted the same statements on the basis of the same investigation as "errors and misstatements" (R. 595–596, 1958–1961), the court below characterized Bancroft's performance as "cavalier ignoring of the falsity of the advertisement" which surely impressed the jury "with the bad faith of the Times, and its maliciousness inferable therefrom" (R. 1178). The Times is absolutely incorrect when it argues that this statement of the Court was based upon the selected portion of Bancroft's testimony excerpted on pages 21 and 22 of its brief.

Sullivan himself testified that the matters contained in the ad were false (R. 705–709); that the statements reflected "upon my ability and integrity, and certainly it has been established here that they are not true" (R. 713).

The bombing statement "referred to me and to the Police Department and the City Commissioners" (R. 718). Similarly, the other matters contained in the second quoted paragraph of the ad related to him "by virtue of being Police Commissioner and Commissioner of Public Affairs."

When asked on cross-examination whether he felt that the ad had a "direct personal reference" to him, his answer was, and it is the simple answer which any normal reader of the ad would give:

"It is my feeling that it reflects not only on me but on the other Commissioners and the community. … When it describes police action, certainly I feel it reflects on me as an individual" (R. 724).

Moreover:

"I have endeavored to try to earn a good reputation and that's why I resent very much the statements contained in this ad which are completely false and untrue" (R. 722).

The circumstances under which this ad was cleared for publication show a striking departure from the Times' usual meticulous screening process. So that it will print only what is "fit to print," the Times has codified an elaborate set of "advertising acceptability standards" (R. 597–601), designed "to exclude misleading, inaccurate, and fraudulent advertisements and unfair competitive statements in advertising. The chief purpose of this policy of The Times is to protect the reader and to maintain the high standards of decency and dignity in its advertising columns which The Times has developed over the years."

14 When asked whether the Times took the position that the ad's statements, with this exception, were "substantially correct," Bancroft first said: "I think it is a pretty hard question to answer" (R. 781). Then, the Times … "doesn't know anything more than what is set forth in these two responses which our stringer and correspondent there, which are annexed to the Answers to the Interrogatories and we don't have any additional knowledge to that" (R. 782). Next: "I really think I have to answer the question by saying I don't know" (R. 782). Then: "[I]t is awfully difficult to define what The Times thinks," but The Times' lawyers had seemed to indicate on April 15, 1960, that the statements were substantially correct (R. 784). He concluded (R. 785): "I find it terribly difficult to be able to say that The Times, as such, believes something is true or is not true. Now, all I can tell you is what the sources of The Times' knowledge are, and the sources are The Times' knowledge—the complete sources as far as I know, are the two annexes attached to the Answers to the Interrogatories. Now, if you asked me would I use the words 'substantially correct,' now, I think I probably would, yes. The tenor of the content, the material of those two paragraphs in the ad which have been frequently read here are not substantially incorrect. They are substantially correct. Now, what sort of words I can use to give you an answer that would satisfy you, I don't know."

To be as charitable as possible, it is remarkable that no person connected with The Times investigated charges that as part of "a wave of terror," public officials in Montgomery, because students sang "My Country 'Tis of Thee" from the Capitol steps, expelled the students from school; ringed their campus with truckloads of police armed with shotguns and tear gas; padlocked dining halls to starve them into submission; and thereby maintained continuity with earlier days in which they had bombed King's home, assaulted his person, and arrested him on baseless charges.

Over sixty names appeared on the ad; none of these persons was contacted. A regional correspondent in Atlanta, who the Times admits had written news reports about racial difficulties in Montgomery, was not questioned. The Times had a string correspondent in Montgomery. It directed him to give an immediate report on the demand for retraction. But he was not asked for prior information or investigation.

In its answer to interrogatories, the Times specified sixteen contemporaneous news stories of its own as "relating to certain of the events or occurrences referred to in the advertisement"(R. 586). Aaronson, Redding, and Bancroft—the three Times witnesses—had never bothered to look at any of this news material before publishing the ad.

Aaronson, an employee on the national advertising staff, who first received the ad, testified that he did not read it (R. 741), but simply "scanned it very hurriedly" (R. 742).

Because he knew nothing which would lead him to believe that these monstrous statements were false (R. 758), Vincent Redding, head of the Advertising Acceptability Department, did not check with any of the signers of the ad; or with the regional correspondent in Atlanta; or with the string correspondent in Montgomery; or with the sixteen newspaper stories on file in his office (R. 763–765):

"Q. Mr. Redding, wouldn't it be a fair statement to say that you really didn't check this ad at all for accuracy?"

"A. That's a fair statement, yes" (R. 765).

One wonders whether the performance of Messrs. Aaronson, Redding and Bancroft inspired the American Civil Liberties Union comment that the Times had suffered "liability without fault" (Brief, p. 26), and the Washington Post evaluation that " … the undisputed record facts disclose that the advertisement was published under circumstances which, by no stretch of the imagination could be characterized as anything other than complete good faith" (Brief, p. 6).

Testimony of John Murray, one of the authors of the ad, and erstwhile Hollywood "scenarist" and Broadway lyricist (R. 815), describing the manner in which the ad was composed, has been quoted previously (Footnote 10, supra).

Thus, this "appealing" congeries of monstrous and now undefended falsehoods was sent to The New York Times. Upon payment of almost five thousand dollars, it was published without any investigation as a full-page advertisement in The New York Times of March 29, 1960. Six hundred and fifty thousand copies of it circulated to the nation as part of "All the news that's fit to print." And its purveyors sat back to await the financial return on their investment in "free speech".

II. Jurisdiction

General appearance Petitioner, by moving to dismiss the action because the Alabama court was said to have no jurisdiction of the subject matter, made a general appearance in this case and thereby consented to the jurisdiction of the Alabama courts over its corporate person. This was the holding of both courts below. In addition, the trial court held that by bringing a mandamus action in the Supreme Court of Alabama unrelated to questions of personal jurisdiction, the Times had compounded its general appearance (R. 49–51). The holdings below, as will be demonstrated, accord with Alabama cases as well as those in a majority of the states.

The Times calls this general appearance "involuntary" (Brief, p. 75). But the Times in its brief in the Alabama Supreme Court (p. 54) said:

"Accordingly, while the motion made it clear that the only grounds for the motion were the defects in the mode of service, the prayer asserted the consequences of these defects—a lack of jurisdiction not only over the person but also over the subject matter."

And the Times still makes the subject matter argument in this Court (Brief, p. 73):

"Hence a contention that the statute is inapplicable or invalid as applied goes, in this sense, to jurisdiction of the cause as well as jurisdiction of the person."

Validity of service of process on The New York Times The courts below held that service on the string correspondent, McKee, and on the Secretary of State were valid. The trial court held that the Times had been sued on a cause of action "incident to" its business in Alabama (R.55); and the "manifold contacts which The Times maintains with the State of Alabama" make it amenable to this process and suit in the Alabama courts, commenced by service on McKee and on the Secretary of State, "regardless of its general appearance" (R. 51). The trial court found:

" … an extensive and continuous course of Alabama business activity—news gathering; solicitation of advertising; circulation of newspapers and other products. These systematic business dealings in Alabama give The Times substantial contact with the State of Alabama, considerably in excess of the minimal contacts required by the Supreme Court decisions. … The Times does business in Alabama" (R. 56–57).

The Alabama Supreme Court affirmed on this point, after extensive findings regarding the business activities of the Times in Alabama (R. 1140–1147). It adopted, as had the trial court, the test of Consolidated Cosmetics v. D-A Publishing Company, 186 F. 2d 906, 908 (7th Cir. 1951):

"The functions of a magazine publishing company, obviously, include gathering material to be printed, obtaining advertisers and subscribers, printing, selling and delivering the magazines for sale. Each of these, we think, constitutes an essential factor of the magazine publication business. Consequently if a non-resident corporation sees fit to perform any one of those essential functions in a given jurisdiction, it necessarily follows that it is conducting its activities in such a manner as to be subject to jurisdiction."

The court below concluded (R. 1149–1150):

"The evidence shows that The Times sent its papers into Alabama, with its carrier as its agent, freight prepaid, with title passing on delivery to the consignee. See Tit. 57, Sec. 25, Code of Alabama 1940; 2 Williston on Sales, Sec. 279 (b), p. 90. Thence the issue went to newsstands for sale to the public in Alabama, in accordance with a long standing business practice.

"The Times or its wholly owned advertising subsidiary, on several occasions, had agents in Alabama for substantial periods of time soliciting, and procuring in substantial amounts advertising to appear in The Times.

"Furthermore, upon the receipt of the letter from the plaintiff demanding a retraction of the matter appearing in the advertisement, The Times had its string correspondent in Montgomery, Mr. McKee, investigate the truthfulness of the assertions in the advertisement. The fact that Mr. McKee was not devoting his full time to the service of The Times is 'without constitutional significance.' Scripto, Inc. v. Carson, Sheriff, et al., 362 U.S. 207."

Moreover, the court below found (R. 1151):

"In the present case the evidence shows that the publishing of advertisements was a substantial part of the business of The Times, and its newspapers were regularly sent into Alabama. Advertising was solicited in Alabama. Its correspondent McKee was called upon by The Times to investigate the truthfulness or falsity of the matters contained in the advertisement after the letter from the plaintiff. The acts therefore disclose not only certain general conditions with reference to newspaper publishing, but also specific acts directly connected with, and directly incident to the business of The Times done in Alabama."

The exhaustive findings of fact contained in the opinions of both Alabama courts are fully substantiated in the record, and are not challenged in the Times Brief. In a qualitative sense, the test of International Shoe Co. v. Washington, 326 U.S. 310, 319–320, these decisions below were clearly correct. The Times from 1956 through April, 1960, conducted an extensive and continuous course of business activity in Alabama. The annual revenue was over twice as great as the $42,000 which this Court found sufficient to establish adequate Florida contacts in Scripto v. Carson, 362 U.S. 207.

SUMMARY OF ARGUMENT

I.

The commercial advertisement in suit sought to, and did, portray criminal and rampant police state activity—an "unprecedented wave of terror"—resulting from students singing "My Country 'Tis of Thee" from the state capitol steps. This falsely alleged "wave of terror" against innocent persons was said to include expulsion from school; ringing of a college campus with truckloads of police armed with shotguns and tear gas; padlocking of the dining hall to starve protesting students into submission; and the arrest of Martin Luther King for loitering and speeding by those who had also bombed his home, assaulted his person and indicted him for perjury. The ad did not name respondent, but massive, terroristic and criminal acts of the police carry the sure meaning to the average, reasonably intelligent reader that the police activity is that of the police commissioner.

A. Alabama libel laws provided petitioner with the absolute defense of truth and with the privilege of fair comment. Petitioner did not plead or attempt to prove truth or fair comment. Its attorneys suggested in open court that the defamatory matter was not true and would not be believed, and that truth was not in issue. The Times itself, in a contemporaneous retraction for another person whom it considered to be "on a par" with respondent, admitted that the material in the ad was erroneous and misleading.

Alabama law provides for untruthful and unprivileged defamers an opportunity to retract and thereby to eliminate all damages except special. Though the Times retracted for another "on a par," it refused to do so for respondent.

The Times makes no claim that it was denied a fair and impartial trial of this libel action, and raises no question of procedural due process.

In these circumstances, no provision of the Constitution of the United States confers an absolute immunity to defame public officials. On the contrary, this Court has repeatedly held that libelous utterances are not protected by the Constitution. Beauharnais v. Illinois, 343 U.S. 250; Near v. Minnesota, 283 U.S. 697, 715; Konigsberg v. State Bar of California, 366 U.S. 36, 49–50; Roth v. U.S., 354 U.S. 476, 483; Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572; Barr v. Matteo, 360 U.S. 564; Farmers Union v. WDAY, Inc., 360 U.S. 525; and Pennekamp v. Florida, 328 U.S. 331, 348–349. Historical commentary on "freedom of the press" accords. See, Thomas Jefferson to Abigail Adams in 1804; Thomas Jefferson's Second Inaugural Address (1805); Chafee, Book Review, 62 Harvard L. Rev. 891, 897, 898 (1949). Moreover, commercial advertisements are not constitutionally protected as speech and press. Valentine v. Chrestensen, 316 U.S. 52, 54; and Breard v. City of Alexandria, 341 U.S. 622, 643. Because such libelous utterances are not constitutionally protected speech, "it is unnecessary, either for us or for the state courts, to consider the issues behind the phrase 'clear and present danger.' " Beauharnais v. Illinois, 343 U.S. 250, 266.

B. It is fantasy for petitioner to argue that the ad which falsely charged respondent, as police commissioner, with responsibility for the criminal and rampant "unprecedented wave of terror" is "the daily dialogue of politics" and mere "political criticism" and "political expression." If the Times prevails, any false statement about any public official comes within this protected category. The absolute immunity would cover false statements that the Secretary of State had given military secrets to the enemy; that the Secretary of the Treasury had embezzled public funds; that the Governor of a state poisoned his wife; that the head of the public health service polluted water with germs; that the mayor and city council are corrupt; that named judges confer favorable opinions on the highest bidder; and that a police commissioner conducted activities so barbaric as to constitute a wave of terror.

C. Since the Times did not invoke Alabama defenses of truth, fair comment or privilege, the question of the constitutional adequacy of these defenses is entirely academic. Nevertheless, Alabama libel law conforms to constitutional standards which this Court has repeatedly set and to the libel laws of most states. "Only in a minority of states is a public critic of Government even qualifiedly privileged where his facts are wrong." Barr v. Matteo, 360 U.S. 564, 585 (dissenting opinion of Chief Justice Warren). The constitution has never required that states afford newspapers the privilege of leveling false and defamatory "facts" at persons simply because they hold public office. The great weight of American authority has rejected such a plea by newspapers. Burt v. Advertiser Company, 154 Mass. 238, 28 N. E. 1, 4 (opinion by Judge, later Mr. Justice Holmes); Post Publishing Company v. Hallam, 59 F. 530, 540 (6th Cir. 1893) (opinion by Judge, later Mr. Chief Justice Taft); Washington Times Company v. Bonner, 86 F. 2d 836, 842 (D. C. Cir. 1936); Pennekamp v. Florida, 328 U.S. 331, 348–349: "For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants."

D. Alabama's definition of libel per se as a false publication which tends to injure the person defamed in his reputation, which brings him into public contempt as a public official, or which charges him with a crime, is a familiar one and accords with that of most states. This Court approved it in Beauharnais v. Illinois, 343 U.S. 250, 257, n. 5, citing Grant v. Reader's Digest, 151 F. 2d 733, 735 (2d Cir. 1945), opinion by Judge Learned Hand; Hogan v. New York Times, 313 F. 2d 354, 355 (2d Cir. 1963). The presumption of general damages from libel per se is the majority rule throughout the country. Developments in the Law—Defamation, 69 Harvard L. Rev. 875 at 934 and 937; 3 Restatement of Torts, § 621, pp. 313–316.

E. In Alabama, as elsewhere, punitive damages and general damages, where there has been no retraction, are permitted, and the jury is given broad discretion in fixing the amount of the award. Reynolds v. Pegler, 123 F. Supp. 36, 38, affirmed 223 F. 2d 429 (2d Cir.), cert. den. 350 U.S. 846; Faulk v. Aware, Inc., 231 N. Y. S. 2d 270; and Beauharnais v. Illinois, 343 U.S. 250, 266. In assessing punitive damages, the jury may properly consider the nature and degree of the offense, as well as the higher moral consideration that these damages may deter such illegal practices in the future. The award in this case is but a fraction of two recent libel awards in the Faulk case and by a Georgia Federal jury of more than three million dollars, with punitive damages alone of two and one-half million dollars and three million dollars respectively.

This Court has always considered itself barred by the Seventh Amendment of the Constitution from setting aside state and federal damage awards as inadequate or excessive. Chicago, B. & Q. v. Chicago, 166 U.S. 226, 242–243; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474; Neese v. Southern Ry., 350 U.S. 77. Many other cases are cited in this brief.

There is no constitutional infirmity in Alabama procedure which preserves the jury's long-standing common law right to return a general verdict. Statement of Mr. Justice Black and Mr. Justice Douglas, 31 F. R. D. 617 at 618–619.

In setting punitive damages, the jury could properly contrast the judicial admissions of the Times' attorneys that the advertisement was false and the Times' retraction of the same matter for another person as misleading and erroneous, with the trial testimony of the secretary of the corporation that the advertisement was substantially correct with the exception of one incident described in the ad.

II.

It is patently frivolous for the Times to argue that no ordinary person of reasonable intelligence could read the advertisement in suit as referring to the Montgomery police commissioner. Certainly the jury is not required as a matter of law to hold that the ad is not of and concerning respondent. Its finding is entitled to all of the safeguards of the Seventh Amendment. Gallick v. B. & O. R. Co., 372 U.S. 108; Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226 at 242–243; and Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474. While the ad's reference is clear enough, the jury heard witnesses who associated respondent with its false allegations. Hope v. Hearst Consolidated Publications, 294 F. 2d 681 (2d Cir.), cert. denied 368 U.S. 956; Chagnon v. Union Leader Corp., 103 N. H. 426, 174 A. 2d 825, 831–832, cert. denied 369 U.S. 830.

This Court in Beauharnais v. Illinois, 343 U.S. 250, and courts generally, have held that a plaintiff need not be named in a defamatory publication in order to have a cause of action for libel. Cosgrove Studio, Inc. v. Pane, 408 Pa. 314, 182 A. 2d 751, 753; Hope v. Hearst Consolidated Publications, supra; Nieman-Marcus v. Lait, 13 F.R. D. 311 (S. D. N. Y. 1952); National Cancer Hospital v. Confidential, Inc.. 136 N. Y. S. 2d 921; Weston v. Commercial Advertisers, 184 N. Y. 479, 77 N. E. 660; Bornmann v. Star Co., 174 N.Y. 212, 66 N. E. 723; Chapa v. Abernethy (Tex. Civ. App.), 175 S. W. 165; Gross v. Cantor, 270 N. Y. 93, 200 N. E. 592; Fullerton v. Thompson, 119 Minn. 136, 143 N. W. 260; Children v. Shinn, 168 Iowa 531, 150 N. W. 864; Reilly v. Curtiss, 53 N.J. 677, 84 A. 199; 3 Restatement of Torts, § 564 (c), p. 152; and Developments in the Law—Defamation, 69 Harvard L. Rev. 894 et seq.

III.

A. The courts below held that under Alabama practice the Times appeared generally in the action because it objected to jurisdiction of the subject matter as well as to jurisdiction of the person. This holding, which accords with the majority rule (25 A. L. R. 2d 835 and 31 A. L. R. 2d 258) is an adequate independent state ground as to jurisdiction over the Times which bars review of that question. Herb v. Pitcairn, 324 U.S. 117, 125–126; Murdock v. Memphis, 20 Wall. 590, 626; Fox Film Corporation v. Muller, 296 U.S. 207, 210; Minnesota v. National Tea Company, 309 U.S. 551, 556–557. A state court's interpretation of its own law is binding here. Fox River Paper Company v. Railroad Commission, 274 U.S. 651, 655; Guaranty Trust Company v. Blodgett, 287 U.S. 509, 513; United Gas Pipeline Company v. Ideal Cement Company, 369 U.S. 134.

B. Even if the Times had not made a general appearance in this case, effective service of process on a Times string correspondent residing in Alabama and on the Secretary of State of Alabama under a Substituted Service Statute, Title 7, § 199 (1), Alabama Code of 1940 as amended, is based on decisions of this Court so explicit as to leave no room for real controversy. Suit against the Times in Alabama accorded with traditional concepts of fairness and orderly administration of the laws. International Shoe Company v. Washington, 326 U.S. 310, 319;McGee v. International Insurance Company, 355 U.S. 220; Scripto v. Carson, 362 U.S. 207; Travelers Health Association v. Virginia, 339 U.S.643. The Times maintained three resident string correspondents in Alabama, and, since 1956, carried on an extensive, systematic and continuous course of business activity there, including news gathering, solicitation of advertising and circulation of newspapers and other products. It performed all of the functions of a newspaper outlined in Consolidated Cosmetics v. D. A. Publishing Company, 186 F. 2d 906, 908 (7th Cir. 1951). Its business activity produced more than twice the revenue which Scripto derived from Florida (see Scripto v. Carson, 362 U.S. 207), and its regular employees combined their efforts with those of independent dealers to produce this result.

It would be manifestly unfair to make respondent bring his libel suit in New York instead of in his home state where the charges were likely to harm him most. See Justice Black's dissenting opinion in Polizzi v. Cowles Magazines, 345 U.S. 663, 667.

When other business corporations may be sued in a foreign jurisdiction, so may newspaper corporations on similar facts. This Court has refused newspaper corporations special immunity from laws applicable to businesses in general. Mabee v. White Plains Publishing Co., 327 U.S. 178, 184 (Fair Labor Standards Act); Associated Press v. N. L. R. B., 301 U.S. 103 (National Labor Relations Act); and Lorain Journal Company v. United States, 342 U.S. 143 (Anti-trust laws).

ARGUMENT

I. The Constitution confers no absolute immunity to defame public officials

The New York Times, perhaps the nation's most influential newspaper, stooped to circulate a paid advertisement to 650,000 readers—an advertisement which libeled respondent with violent, inflammatory, and devastating language. The Times knew that the charges were uninvestigated and reckless in the extreme. It failed to retract for respondent with subsequent knowledge of the falsity of the material in the advertisement. Yet it retracted as misleading and erroneous the same defamatory matter for another "on a par."

Petitioner was unable to plead truth; or fair comment; or privilege. Alabama provides these classic defenses so that the press may be free within the rubric of its libel laws.15 Since petitioner did not invoke these Alabama defenses, its belated attack on their constitutional adequacy is hollow and entirely academic. Nevertheless, the Alabama law of libel conforms to constitutional standards which this Court has repeatedly set and to the libel laws of most states. "Only in a minority of states is a public critic of Government even qualifiedly privileged where his facts are wrong."16 Moreover, "[t]he majority of American courts do not give a privilege to a communication of untrue facts, or to a comment based on them, even though due care was exercised in checking their accuracy."17A fortiori there is no such privilege where there was no check whatever. (See Aaronson, Redding and Bancroft testimony).

The Times' trial attorneys conceded that truth was not in issue; and made plain to the jury that the material was so patently false as to be unbelievable in the community. No defendant attempted to introduce testimony to substantiate the charges. The Times does not claim that it was denied a fair and impartial trial of the libel action. The petition raises no question of procedural due process.

"This cause was tried in the courts of [the state] in accordance with regular court procedure applicable to such cases. The facts were submitted to a jury as provided by the constitution and laws of that State, and in harmony with the traditions of the people of this nation. Under these circumstances, no proper interpretation of the words 'due process of law' contained in the Fourteenth Amendment can justify the conclusion that appellant has been deprived of its property contrary to that 'due process.' "18

15 Substantial truth in all material respects is a complete defense if specially pleaded. Ferdon v. Dickens, 161 Ala. 181, 49 So. 888; Kirkpatrick v. Journal Publishing Company, 210 Ala. 10, 97 So. 58; Alabama Ride Company v. Vance, 235 Ala. 263, 178 So. 438.

Privilege and fair comment, too, are defenses, if specially pleaded. Ferdon v. Dickens, supra; W. T. Grant v. Smith, 220 Ala. 377, 125 So. 393.

A retraction completely eliminates punitive damages. Title 7, Sections 913–917, Alabama Code (App. A. p. 67).

16 Chief Justice Warren, dissenting in Barr v. Matteo, 360 U.S. 564, 585.

17Developments in the Law—Defamation, 69 Harvard L. Rev. 877, 927 (1956).

18United Gas Public Service Company v. Texas, 303 U.S. 123, 153, Black J. concurring.

Libelous utterances have no constitutional protection The Times does not seek review of a federal question—substantial or otherwise. For libelous utterances have never been protected by the Federal Constitution. Throughout its entire history, this Court has never held that private damage suits for common law libel in state courts involved constitutional questions.19 Respondent vigorously disputes the Times' assertion that this Court is wrong in its history (Brief, pp. 44–48), and that the constitutional pronouncements in those cases are mere "adjectives" and statements "made in passing" (Brief, p. 40). Respondent is confident that this Court meant what it said in Roth v. U.S., 354 U.S. 476, 483, for example:

"In light of this history it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech (citation)."

Again in Konigsberg this Court pronounced that it "has consistently recognized [that] … certain forms of speech [have] been considered outside the scope of constitutional protection." 366 U.S. 36, 50, citing Beauharnais and Roth.

Moreover, commercial advertisements are not constitutionally protected as speech and press, since there is no real restraint on speech and press where commercial activity is involved. Valentine v. Chrestensen, 316 U.S. 52, 54; Breard v. City of Alexandria, 341 U.S. 622, 643.20 The Times has termed the citation of these cases "frivolous" and "cynical" (Brief, pp. 31 and 57). But its analysis of Valentine v. Chrestensen is incomplete—the other side of the handbill protested a city department's refusal of wharfage facilities. And the Times itself classified the ad as a commercial one, and submitted it to the Advertising Acceptability Department and to the standards of censorship which that department is supposed to impose. The Times charged the regular commercial advertising rate of almost five thousand dollars, scarcely as "an important method of promoting some equality of practical enjoyment of the benefits the First Amendment was intended to secure" (Brief, p. 58).

This Court last term in Abernathy v. Patterson, 368 U.S. 986, declined to review a decision of the Court of Appeals, 295 F. 2d 452, 456–457, which had held this very publication unprotected constitutionally as a libelous utterance. The Court of Appeals stated that the only constitutional claim could be one relating to the conduct of the trial.

In 1804, Thomas Jefferson wrote to Abigail Adams, referring to his condemnation of the Sedition Act of 1798:

"Nor does the opinion of the unconstitutionality and consequent nullity of that law remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the U.S. The power to do that is fully possessed by the several state legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so."21

Again in his second inaugural address on March 4, 1805, Jefferson said:

"No inference is here intended that the laws provided by the States against false and defamatory publications should not be enforced; he who has time renders a service to public morals and public tranquility in reforming these abuses by the salutary coercions of the law; but the experiment is noted to prove that, since truth and reason have maintained their ground against false opinions in league with false facts, the press, confined to truth, needs no other legal restraint; the public judgment will correct false reasonings and opinions on a full hearing of all parties; and no other definite line can be drawn between the inestimable liberty of the press and its demoralizing licentiousness."22

A century and a quarter later, Justices Holmes and Brandeis joined Chief Justice Hughes, who spoke for the Court in Near v. Minnesota, 283 U.S. 697, 715:

19Beauharnais v. Illinois, 343 U.S. 250; Near v. Minnesota, 283 U.S. 697, 715; Konigsberg v. State Bar of California, 366 U.S. 36, 49–50; Roth v. U.S., 354 U.S. 476, 483; Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572.

20 Lower Federal court decisions accord. Pollak v. Public Utilities Commission, 191 F. 2d 450, 457 (D. C. Cir. 1951); E.F. Drew & Co. v. Federal Trade Commission, 235 F. 2d 735, 740 (2d Cir. 1956), cert. den. 352 U.S. 969.

21 Quoted in Dennis v. U.S., 341 U.S. 494, 522, n. 4, and in Beauharnais v. Illinois, 343 U.S. 250, 254, n. 4.

22 I Messages and Papers of the Presidents, Joint Committee on Printing, 52nd Congress, pp. 366, 369 (1897).

"But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions."

Twenty years thereafter, this Court upheld an Illinois criminal group libel statute which had been applied to one who had distributed a pamphlet charging that Negroes as a class were rapists, robbers, carriers of knives and guns, and users of marijuana. Beauharnais v. Illinois, 343 U.S. 250, 266:

"Libelous utterances, not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' "

Since Beauharnais, as the table contained in Appendix A of respondent's brief in opposition shows, this Court has declined to review forty-four libel cases coming from the state and federal courts. It has reviewed three. Two of them23 resulted in a holding that certain lower echelon federal executive personnel had an absolute privilege. The third24 held that a radio and television station, which gave equal time to all political candidates because of the dictates of § 315 of the Federal Communications Act, was absolutely immune, by virtue of the same act, from state libel suits growing out of any such broadcasts.

The Times and its powerful corporate newspaper friends obviously realize that history and precedent support the holding below that this libelous advertisement is not constitutionally protected. They assert, therefore, at least for themselves and others who conduct the business of mass communication, an absolute privilege to defame all public officials—even in paid advertisements; even when the defamation renders the classic defenses of truth, fair comment and privilege unavailable; even when there is no retraction to show good faith. They urge this Court to write such a fancied immunity into the constitution—at least for themselves, for they are silent on whether this new constitutional protection is to extend to ordinary speakers and writers. The obvious consequence of such a holding would be the confiscation of the rights of those defamed to assert their traditional causes of action for defamation in state courts.

The Times attempts to cloak this defamatory advertisement with constitutional respectability. The ad is called "the daily dialogue of politics" and mere "political criticism" and "political expression." Surely desperation leads the Times so to characterize a charge that respondent, as police commissioner, was responsible for the criminal and rampant "unprecedented wave of terror" which this ad sought to portray falsely.

If the Times prevails, then any statement about any public official becomes "the daily dialogue of politics," "political expression and criticism" and "a critique of attitude and method, a value judgment and opinion." The absolute immunity would cover false statements that the Secretary of State had given military secrets to the enemy; that the Secretary of the Treasury had embezzled public funds; that the Governor of a state poisoned his wife; that the head of the public health service polluted water with germs; that the mayor and city council are corrupt; that named judges confer favorable opinions on the highest bidder; and that a police commissioner conducted activities so barbaric as to constitute a wave of terror. If a state court indulges in "mere labels" without constitutional significance when it holds such utterances libelous, and if such defamatory statements about "public men" are to be protected as legitimate and socially useful speech, then the Times and its friends urge this Court to "convert the constitutional Bill of Rights into a suicide pact."25

23Barr v. Matteo, 360 U.S. 564; and Howard v. Lyons, 360 U.S. 593.

24Farmers Union v. WDAY, Inc., 360 U.S. 525.

25 Jackson, J. dissenting in Terminiello v. Chicago, 337 U.S. 1, 37.

The Times wrongly argues that Mr. Justice Frankfurter's caveat in Beauharnais was designed for such a purpose (Brief, p. 41). He examined the hypothetical dangers of permitting statutes which outlawed libels of political parties. Justice Frankfurter observed that such attempts would "raise quite different problems not now before us" (343 U.S. 250,264), and it was in this context that he observed that the doctrine of fair comment would come into play "since political parties, like public men, are, as it were, public property." The case at bar, too, presents far different problems.

Clearly, Congress and this Court did not find such a constitutional immunity, hence Section 315 and Farmers Union v. WDAY, 360 U.S. 525. The very reason for such Congressionally conferred immunity was the "widely recognized" existence of causes of action for libel by defamed candidates for public office "throughout the states" (360 U.S. 525 at 535). This Court found that Congress had given immunity because broadcasters would have too much difficulty determining whether a particular equal time broadcast was defamatory in terms of relevant state law. 360 U.S. 525 at 530. Surely this Court did not decide WDAY on an assumption that the Constitution already provided such immunity absent a "clear and present danger."

Beauharnais, 343 U.S. 250 at 266, disposes of petitioner's "clear and present danger" cases (pp. 13–15) involving criminal prosecutions for breach of peace, criminal syndicalism and contempt of court.26 Indeed, the background of one of them, Pennekamp v. Florida, 328 U.S. 331, 348–349, sharply distinguishes these cases from the one at bar. This Court told Pennekamp that even those hardy judges described by petitioner could bring private suits for defamation in state courts. "For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants."27

Pennekamp—editor of the Miami Herald—ignored this warning. Perhaps he assumed, as does the Times, that the official's remedy was "left at large," and that there was an absolute privilege to level not only fair but false and defamatory criticism at public officials. Pennekamp discovered that he was wrong, and that the remedy had been brought in tow, when his paper libeled a prosecuting attorney who recovered $100,000 in damages. Miami Herald v. Brautigam (Fla.), 127 So. 2d 718. Even though Pennekamp and his paper were able to plead fair comment and truth, and claimed the editorial expression as their own,28 this Court declined to review despite the same First and Fourteenth Amendment arguments which the Times advances in its brief. 369 U.S. 821.

Two of this Court's greatest figures rejected a contention that newspapers should have an absolute privilege to defame public officials and a consequent absolute immunity from private libel suits. Mr. Justice, then Judge Holmes, in Burt v. Advertiser Company, 154 Mass. 238, 28 N.E. 1, 4, upholding a trial court charge to the jury that newspaper statements of fact, as distinguished from opinion, if false, were not privileged, said:

"But what the interest of private citizens in public matters requires is freedom of discussion rather than of statement. Moreover, the statements about such matters which come before the courts are generally public statements, where the harm done by a falsehood is much greater than in the other case."

"If one private citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no better than the writer."

Mr. Chief Justice, then Judge Taft, upholding a similar trial court charge in Post Publishing Company v. Hallam, 59 F. 530, 540 (6th Cir., 1893), wrote:

"[I]f the [absolute] privilege is to extend to cases like that at bar, then a man who offers himself as a candidate must submit uncomplainingly to the loss of his reputation, not with a single person or a small class of persons, but with every member of the public, whenever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reasonable ground. We think that not only is such a sacrifice not required of everyone who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good."

26Cantwell v. Connecticut, 310 U.S. 296; DeJonge v. Oregon, 299 U.S. 353; Bridges v. California, 314 U.S. 252; Pennekamp v. Florida, 328 U.S. 331; Craig v. Harney, 331 U.S. 367; Wood v. Georgia, 370 U.S. 375; Edwards v. South Carolina, 372 U.S. 229; Terminiello v. Chicago, 337 U.S. 1; Whitney v. California, 274 U.S. 357; Stromberg v. California, 283 U.S. 359. While Cantwell is cited by the Times for the proposition that political expression is not limited by any test of truth, it omits the more relevant observation just following:

"There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish" (at p. 310).

27 Surely the Times does not assert seriously that this Court "left at large" what may amount to defamation and what remedy a public servant has (Brief, p. 41). He has the same remedy under the laws of his state that any other citizen has.

28 In the Supreme Court of Alabama, the Times literally disavowed the advertisement as its utterance: "The ad was not written by anyone connected with The Times; it was not printed as a report of facts by The Times, nor as an editorial or other expression of the views of The Times" (Reply Brief, p. 12).

Judge Taft rejected the argument, urged here by the Times and its newspaper friends, that the privilege of fair comment "extends to statement of fact as well as comment" when made by one "who has reasonable grounds for believing, and does believe, that [the public officer or candidate] has committed disgraceful acts affecting his fitness for the office he seeks" (59 F. 530 at 540).

Judge Taft's admonitions still obtain, as Chief Justice Warren observed, in the majority of the states which hold that a public critic of government "is not even qualifiedly privileged where his facts are wrong." Barr v. Matteo, 360 U.S. 564, 585. Alabama is in accord with the great weight of state and federal authority.29

A noted commentator, Professor Zechariah Chafee, an old and close friend of free speech and press, also disagrees with the Times' law and history:

"Especially significant is the contemporaneous evidence that the phrase 'freedom of the press' was viewed against a background of familiar legal limitations which men of 1791 did not regard as objectionable, such as damage suits for libel. Many state constitutions of this time included guaranties of freedom of speech and press which have been treated as having approximately the same scope as the federal provisions. Some of these, as in Massachusetts, were absolute in terms, while others, as in New York, expressly imposed responsibility for the abuse of the right. The precise nature of the state constitutional language did not matter; the early interpretation was much the same. Not only were private libel suits allowed, but also punishments for criminal libel and for contempt of court. For instance, there were several Massachusetts convictions around 1800 for libels attacking the conduct of the legislature and of public officials. This evidence negatives the author's idea of a firmly established purpose to make all political discussion immune."30

The Times can cite no authority holding that the Federal Constitution grants it an absolute privilege to defame a public official.

The advertisement was libelous per se The Times and its friends complain that the court below has held libelous per se a publication which is false, which tends to injure the person defamed in his reputation, which brings him into public contempt as an official, and which charges him with crime. Such a standard, they argue, is a common law concept of the most general and undefined nature. But this Court in Beauharnais v. Illinois, 343 U.S. 250, 257, n. 5, approved Judge Learned Hand's definition of libel in Grant v. Reader's Digest, 151 F. 2d 733, 735 (2d Cir. 1945),"in accordance with the usual rubric, as consisting of utterances which arose 'hatred, contempt, scorn, obloquy or shame,' and the like." Such a definition, this Court held, was a familiar—not a general and undefined—common law pronouncement.

The Times objects because the court decided the question of whether the publication was libelous per se. But the Times' contention opposes Baker v. Warner, 231 U.S. 588, 594. And see Beauharnais, 343 U.S. 250, 254:

"Similarly, the action of the trial court in deciding as a matter of law the libelous character of the utterance, leaving to the jury only the question of publication, follows the settled rule in prosecutions for libel in Illinois and other States."

The Times complains because Alabama presumes general damages from a publication libelous per se, including the uncertain future damage of loss of job. This is the law generally.31

This publication charged a public official in devastating fashion with departing from all civilized standards of law and decency in the administration of his official duties. The correctness of the determination below that it is libelous per se is underscored by Sweeney v. Schenectady Union Publishing Company, 122 F. 2d 288, affirmed 316 U.S. 642. There a statement that a Congressman opposed a federal judicial appointment because of anti-Semitism was held libelous per se as a matter of law.

Very recently this same Court in Hogan v. New York Times, 313 F. 2d 354, 355 (2d Cir. 1963), observed that the Times did not even contest on appeal a district court holding that its news article describing a dice game raid of two policemen as a Keystone cop performance was "libelous per se as a matter of law."

29 See Washington Times Company v. Bonner, 86 F. 2d 836, 842 (D. C. Cir. 1936).

30 Chafee, Book Review, 62 Harvard L. Rev. 891, 897–898 (1949) (Footnotes omitted).

31 Commentators precisely oppose the Times' view. See Note, Exemplary Damages in the Law of Torts, 70 Harvard L. Rev. 517, 531 (1957), where it was observed that a requirement of correlation between actual and punitive damages "fails to carry out the punitive function of exemplary damages, since it stresses the harm which actually results rather than the social undesirability of the defendant's behavior."

See, Developments in the Law—Defamation, 69 Harvard L. Rev. 875, at 934, et seq. And see ibid. at 937: "Because defamation is a tort likely to cause substantial harm of a type difficult to prove specifically, courts will allow a substantial recovery of general damages on a presumption of harm even though the plaintiff offers no proof of harm." See also 3 Restatement of Torts, § 621, pp. 313–316.

Clearly the court below has correctly applied the Alabama common law of libel—law which accords in all relevant particulars with that of many other states.

Damages awarded by the jury may not be disturbed The Times' objection that punitive damages in libel should not be imposed to deter the libeler and others like him from similar misconduct does not square with Beauharnais, 343 U.S. 250, 263. The Alabama test is precisely that of Reynolds v. Pegler, 123 F. Supp. 36, 38, affirmed 223 F. 2d 429 (2d Cir.), cert. den. 350 U.S. 846.32 There the jury brought back one dollar compensatory damages and $175,000 in punitive damages.

In its argument that the size of this verdict impinges its constitutional rights, the Times has ignored a recent New York decision refusing to disturb a verdict of $3,500,000, of which the sum of $2,500,000 was punitive damages, against a publication and another for stating that plaintiff was linked to a Communist conspiracy. Faulk v. Aware, Inc., 231 N. Y. S. 2d 270, 281:

"In libel suits, of course, punitive damages have always been permitted in the discretion of the jury. The assessment of a penalty involves not only consideration of the nature and degree of the offense but the higher moral consideration that it may serve as a deterrent to anti-social practices where the public welfare is involved. The jury, representing the community, assesses such a penalty as, in its view, is adequate to stop the practices of defendants and others having similar designs."

The New York Times did not condemn the Faulk verdict—seven times as great as the one at bar—as heralding the demise of a free press. Instead, the Times applauded the verdict as "having a healthy effect."33

Quite recently a Federal jury returned a libel verdict of $3,060,000 in favor of a former college athletic director who was charged with rigging a football game. The specified punitive damages were $3,000,000, even higher than those in the Faulk case.34

Another commentator has observed that in England "the survival of honorific values and standards of communal decency keep defamation at a minimum and subject it, when it raises its head, to staggering jury verdicts." Riesman, Democracy and Defamation, 42 Columbia L. Rev. 727, 730.

It is appropriate here to remind this Court that it has always considered itself barred by the Seventh Amendment from setting aside state and federal jury damage awards as inadequate or excessive. Chicago, B. & Q. v. Chicago, 166 U.S. 226, 242–243 ($1 verdict in condemnation proceeding); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474 (and cases cited); St. Louis, etc., Ry. Co. v. Craft, 237 U.S. 648; Maxwell v. Dow, 176 U.S. 581, 598; Southern Ry. v. Bennett, 233 U.S. 80, 87; Herencia v. Guzman, 219 U.S. 44, 45; Eastman Kodak v. Southern Photo Materials, 273 U.S. 359; L. & N. v. Holloway, 246 U.S. 525; cf. Neese v. Southern Ry., 350 U.S. 77. See also, Justices v. U.S. ex rel. Murray, 9 Wall. 274, said by this Court to be one of many cases showing "the uniform course of decision by this Court for over a hundred years in recognizing the legal autonomy of state and federal governments." Knapp v. Schweitzer, 357 U.S. 371, 378–379.

In an attempt to avoid this precedent, the Times first cites a series of cases which hold statutory penalties subject to judicial review as excessive—cases obviously having nothing to do with appellate review of jury verdicts.35

32 "Punitive or exemplary damages are intended to act as a deterrent upon the libelor so that he will not repeat the offense, and to serve as a warning to others. They are intended as punishment for gross misbehavior for the good of the public and have been referred to as a 'sort of hybrid between a display of ethical indignation and the imposition of a criminal fine.' Punitive damages are allowed on the ground of public policy and not because the plaintiff has suffered any monetary damages for which he is entitled to reimbursement; the award goes to him simply because it is assessed in his particular suit. The damages may be considered expressive of the community attitude towards one who wilfully and wantonly causes hurt or injury to another" (Emphasis supplied; footnotes omitted).

33 Editorial of June 30, 1962, p. 18.

34New York Times, August 21, 1963, p. 1.

35Life & Casualty Co. v. McCray, 291 U.S. 566; Chicago and N. W. Ry. v. Nye Schneider Fowler Company, 260 U.S. 35; Mo. Pac. Ry. Co. v. Tucker, 230 U.S. 340; St. Louis, etc. Ry. v. Williams, 251 U.S. 63. The other case cited for this purpose is a criminal case dealing with the Sixth Amendment. Robinson v. California, 370 U.S. 660 (Brief, p. 68).

Next the Times urges that respondent's cases permit appellate review of excessive jury damage awards as errors of law (Brief, p. 69). But the cases themselves are otherwise. They cite, as examples of errors of law, awards which exceed the statutory limits; or are less than the undisputed amount; or are pursuant to erroneous instructions on measure of damages; or are in clear contravention of instructions of the court. Fairmount Glass Works v. Cub Fork Coal Company, 287 U.S. 474, 483–484. Another case, Chicago, B. & Q. RR. v. Chicago, 166 U.S. 226, 246, holds instead:

"We are permitted only to inquire whether the trial court prescribed any rule of law for the guidance of the jury that was in absolute disregard of the company's right to just compensation."

Another case, Dimick v. Schiedt, 293 U.S. 474, did not hold that the question of excessive or inadequate verdicts was one of law, but on the contrary that it was "a question of fact." 293 U.S. 474 at 486. And A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355, 360, cited by the Times, stated that the Seventh Amendment "fashions 'the federal policy favoring jury decisions of disputed fact questions'."

The Times then argues that this Court may review the amount of damages because alleged abridgment of freedom of the press must take precedence over the Seventh Amendment (Brief, p. 69). It cites no authority for this amazing argument—one which scarcely accords with this Court's observation in Jacob v. City of New York, 315 U.S. 752 and 753:

"The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts."

The Times quickly moves on to an argument almost as tenuous, namely, that modern authority "regards the Seventh Amendment as inapplicable generally to appellate review of an excessive verdict …" (Brief, p. 69). The premise clashes with Neese v. Southern Ry., 350 U.S. 77, as well as with such cases as Fairmount, supra, 287 U.S. 474, 481:

"The rule that this Court will not review the action of a federal trial court in granting or denying a motion for a new trial for error of fact has been settled by a long and unbroken line of decisions; and has been frequently applied where the ground of the motion was that the damages awarded by the jury were excessive or were inadequate." (Footnotes omitted.)

Finally, the Times complains that there was constitutional infirmity in the failure of the Alabama court to permit special interrogatories to the jury on damages, and thereby to deprive the jury of its right to return a general verdict.36 Surely there is no constitutional defect in Alabama's adherence to the common law general verdict so recently eulogized by Justices Black and Douglas when they condemned an extension of the practice of submitting special interrogatories to federal juries:

"Such devices are used to impair or wholly take away the power of a jury to render a general verdict. One of the ancient, fundamental reasons for having general jury verdicts was to preserve the right of trial by jury as an indispensable part of a free government. Many of the most famous constitutional controversies in England revolved around litigants' insistence, particularly in seditious libel cases, that a jury had the right to render a general verdict without being compelled to return a number of subsidiary findings to support its general verdict. Some English jurors had to go to jail because they insisted upon their right to render general verdicts over the repeated commands of tyrannical judges not to do so."37

Accordingly, a review of the damages awarded by the jury in this case is beyond the powers of this Court. Moreover, the verdict, as the court below held, conforms to the general damages suffered by the respondent and to the wrong which the Times committed. The Times does not claim here that the jury was motivated by passion or prejudice or corruption or any improper motive. Two state courts have found that it was not.

36Johnson Pub. Co. v. Davis, 271 Ala. 474, 496, 124 So. 2d 441; All States Life Ins. Co. v. Jaudon, 230 Ala. 593, 162 So. 668; Little v. Sugg, 243 Ala. 196, 8 So. 2d 866; Spry v. Pruitt, 256 Ala. 341, 54 So. 2d 701.

37 Statement of Mr. Justice Black and Mr. Justice Douglas on the Rules of Civil Procedure and the Proposed Amendments, 31 F. R. D. 617, at 618–619.

The jury was no doubt struck by the amazing lack of concern and contrition exhibited by the Times' representatives at the trial, and it certainly contrasted their conduct. The Times' attorneys did not plead truth; did not attempt to introduce evidence of truth; suggested in cross-examination of respondent's witnesses that the matter was untrue and would not be believed; stated in open court that truth was not in issue; and could not plead fair comment or privilege. The Times retracted the same matter as erroneous and misleading for another person whom it considered to be "on a par" with respondent. But the secretary of the corporation, who had signed its answers to interrogatories, said that with the exception of the padlocking incident he believed the matters in the ad were not substantially incorrect.

Even more recently the conduct of the Times' business has warranted judicial condemnation. Hogan v. New York Times, 313 F. 2d 354, 355–356 (2d Cir. 1963):

"We believe that sufficient evidence existed to sustain the jury verdict on either of the two possible grounds upon which its decision that defendant abused its qualified privilege might have been based: (1) improper purpose in publishing the article, or (2) reckless disregard for the truth or falsity of the story, amounting to bad faith."

The Times had its chance to retract and eliminate punitive damages, but chose not to do so for this respondent though it retracted for another person "on a par." A restriction of respondent to special damages would compound the evils described by Mr. Chafee in the following statement which he quoted with approval:

" 'To require proof of special damages would mean virtual abolition of legal responsibility for inadvertent newspaper libel. Newspaper slips are usually the result of reprehensible conduct of members of the defendant's organization. To deny plaintiffs recovery for retracted libel unless they prove special damages, is to do away with newspapers' financial interest in accuracy. The tendency towards flamboyance and haste in modern journalism should be checked rather than countenanced. If newspapers could atone legally for their mistakes merely by publishing corrections, the number of mistakes might increase alarmingly….' "38

II. There is no ground for reviewing a jury determination that the advertisement was "of and concerning" the Plaintiff

The Times' assertion that this Court should decide as a matter of constitutional law that the jury which tried this case was wrong in finding that the advertisement was "of and concerning" respondent is astounding. Respondent will not repeat here the thorough discussion of the testimony analyzing the false allegations of the ad and their reference to respondent as police commissioner of Montgomery. Apparently a reading of this testimony has now impressed even the Times. It has omitted from its brief on the merits the cases of Thompson v. Louisville, 362 U.S. 199, and Garner v. Louisiana, 368 U.S. 157, cited in its petition for certiorari for the proposition that there was no evidence to support the verdict.

Again the Times seeks to overturn imbedded constitutional principles. This case has been tried in a state court according to admittedly proper court procedure, and a jury has decided the facts. This Court simply does not go behind these factual determinations and review a state court judgment, entered on a jury verdict and affirmed by the highest state appellate court. Chicago, B. &Q. R. Co. v. Chicago, 166 U.S. 226 at 242–243; United Gas Public Service Co. v. Texas, 303 U.S. 123, 152–153 (Black, J., concurring); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474; Maxwell v. Dow, 176 U.S. 581, 598.39

When this Court in Gallick v. B. & O. R. Co., 372 U.S. 108, 9 L. Ed. 2d 618, 627, held that its duty was to reconcile state jury findings "by exegesis if necessary," it surely assigned no lesser place to the Seventh Amendment than that described by Justices Black and Douglas:

"The call for the true application of the Seventh Amendment is not to words, but to the spirit of honest desire to see that constitutional right preserved. Either the judge or the jury must decide facts and to the extent that we take this responsibility, we lessen the jury function. Our duty to preserve this one of the Bill of Rights may be peculiarly difficult, for here it is our own power which we must restrain."40

Similar principles permeated the judicial philosophy of Judge Learned Hand:

38 Quoted in Chafee, Possible New Remedies for Errors in the Press. 60 Harvard L. Rev., 1, 23.

39 The Times seeks to circumvent these cases—and the 7th Amendment—by citing inapposite cases dealing with review here of state court conclusions as to a federal right where facts inadequately support the conclusion. Norris v. Alabama, 294 U.S. 587; Wood v. Georgia, 370 U.S. 375; Craig v. Harney, 331 U.S. 367; Pennekamp v. Florida, 328 U.S. 331; Bridges v. California, 314 U.S. 252; Edwards v. South Carolina, 372 U.S. 229—cases involving state court (not jury) determinations of questions of discrimination in the selection of a grand jury, and of the existence of a clear and present danger; Watts v. Indiana, 338 U.S. 49—a state court determination as to a coerced confession; Herndon v. Lowry, 301 U.S. 242—a case invalidating a conviction because the criminal statute prescribed "no reasonably ascertainable standard of guilt" (at 264); and Fiske v. Kansas, 274 U.S. 380—overturning a conviction under a criminal syndicalism act where the prosecution had introduced no evidence other than a preamble of the constitution of the Industrial Workers of the World which this Court found to be no evidence to support the conviction.

40Galloway v. United States, 319 U.S. 372, 407 (Black, Douglas and Murphy, JJ., dissenting).

"And so only the most unusual circumstances could justify judicial veto of a legislative act … or a jury verdict. Hand's standard for intervention was essentially the same in both cases. It came simply to this: if there was room for doubt, legislation—like a verdict—must stand, however, mistaken it might seem to judges. Ambivalence in the law was the province of jury and legislature—the two authentic voices of the people. Judicial intervention was permissible only when a court was prepared to hold that no reasonable mind could have found as the legislature or jury did find."41

Regarding falsity, the statements in the ad have been discussed exhaustively in this brief. The Times was unable to plead truth; and conceded falsity before the trial by its retraction to Governor Patterson and at the trial through the statements of its attorneys. It is surely paradoxical for the Times to assert in this Court that the record is so "devoid" of evidence of falsity as to invoke the certiorari jurisdiction of this Court. Nothing could be more idle than to debate with the Times and its friends the question of whether Alabama imposes the burden of proving truth on the wrong party, when the Times by its judicial admissions has conceded falsity.42

Moreover, this record reveals this ad's devastating effect on respondent's reputation among those who believed it. Courts have easily and effectively dealt with the Times' argument that the publication was not libelous or injurious because it was not believed in the community (Brief, p. 65).43 Perhaps the Times would also argue that those in a crowded theater who did not see or smell smoke would not believe a person who yelled "fire."

It is patently frivolous for the Times to argue that no ordinary person of reasonable intelligence44 could possibly read this advertisement as referring to the Montgomery police commissioner. Nor is a jury bound by the Federal Constitution to take the Times' construction of these words after its attorneys have completed a sanitizing operation in an attempt to dull the cutting edges of these words.45

Beauharnais v. Illinois, 343 U.S. 250, teaches that a libel plaintiff need not be named in the defamatory publication. There the criminal prosecution was for defamation of the entire Negro race.46

It is difficult to believe that the Times is serious when it argues that this record is entirely devoid of evidence to support the jury finding that these defamatory words were of and concerning respondent.

The ad sought to, and did, portray criminal and rampant police state activity resulting from the singing of "My Country, 'Tis of Thee" from the State Capitol steps. It sought to portray, and did, a resultant "wave of terror" against innocent persons—expulsion from school; ringing of the campus of Alabama State College with truckloads of police armed with shotguns and tear gas; and padlocking of the dining hall to starve protesting students into submission. And the ad returned to Montgomery in the second quoted paragraph to charge that pursuant to the same "wave of terror," those who had arrested King for loitering and speeding also had bombed his home, assaulted his person, and indicted him for perjury.47

41 Mendelson, Learned Hand: Patient Democrat, 76 Harvard L. Rev. 322, 323–324 (1962).

42 Completely inapposite, therefore, are the Times' citations of Speiser v. Randall, 357 U.S. 513 and Bantam Books, Inc. v. Sullivan, 372 U.S. 58, regarding inadequate state procedures where the speech or writing itself may be limited.

43 See e.g. Reynolds v. Pegler, 123 F. Supp. 36, 37–38, affirmed 223 F. 2d 429 (2d Cir.), cert. denied 350 U.S. 846:

"'A person may be of such high character that the grossest libel would damage him none; but that would be no reason for withdrawing his case from the wholesome, if not necessary, rule in respect of punitive damages …'

To adopt the contrary view … would mean that a defamer gains a measure of immunity no matter how venomous or malicious his attack simply because of the excellent reputation of the defamed; it would mean that the defamer, motivated by actual malice, becomes the beneficiary of that unassailable reputation and so escapes punishment. It would require punitive damages to be determined in inverse ratio to the reputation of the one defamed."

44 This is the test everywhere. See Albert Miller & Co. v. Corte, 107 F. 2d 432, 435 (5th Cir. 1939), which holds that Alabama cases to this effect accord with libel law generally. See also Peck v. Tribune Co., 214 U.S. 185 (where the wrong person was named); Grant v. Reader's Digest, 151 F. 2d 733 (2d Cir. 1945); Spanel v. Pegler, 160 F. 2d 619 (7th Cir. 1949); 3 Restatement of Torts, § 580, Comments (b) and (c), pp. 205–207.

45 Authorities in Footnote 44.

46 See also Cosgrove Studio, Inc. v. Pane, 408 Pa. 314, 182 A. 2d 751, 753: "The fact that the plaintiff is not specifically named in the advertisement is not controlling. A party defamed need not be specifically named, if pointed to by description or circumstances tending to identify him…."

47 Even Gershon Aaronson of the Times so read "they" as used in this paragraph of the advertisement (R. 745).

The effect of this publication was as deadly as intended—to instill in the minds of the readers the conclusion that these acts had been perpetrated by Montgomery city officials, specifically the police commissioner. The Times can suggest no one else except the police, whose massive acts in the public mind are surely the work of the commissioner. The connotation is irresistible—certainly not, as the Times argues, completely devoid of rationality.

Moreover, the jury heard witnesses who made the association. Hope v. Hearst Consolidated Publications, 294 F. 2d 681 (2d Cir.), cert. denied 368 U.S. 956; Chagnon v. Union Leader Corp., 103 N. H. 426, 174 A. 2d 825, 831–832, cert. denied 369 U.S. 830.

Respondent sued as a member of a group comprising three city commissioners. Libel suits by members of private or public groups of this size are widely permitted. The decision below accords with the law generally.48

III. This case provides no occasion for excursions from this record and from accepted constitutional standards.

In a desperate effort to secure review in this Court, the Times and its friends go outside the record and refer this Court to other libel suits pending in Alabama. With the exception of two brought by the other Montgomery commissioners, all are erroneously and uncandidly labeled "companion cases."49

But the effort is as revealing as it is desperate. Clearly, petitioner feels that this case, standing on its own, does not present grounds for review.

These cases are not yet tried. There are different plaintiffs; different defendants; different publications; different communications media; different forums; different attorneys; different issues;50 no final judgment in any; and a trial on the merits in only one of them. The Times urges this Court to jettison libel laws that have existed since the founding of this Republic, and hold:(a) there is an absolute privilege to defame public officials, at least those living in Alabama; (b) private libel suits for defamation are available to all citizens of the United States in state courts according to state libel laws, but not to persons who happen to hold public office in Alabama;(c) plaintiffs in those cited cases shall be deprived of their rights to have their libel cases heard on their merits.

The Times seems to hint to this Court that because the publication contained statements regarding racial tensions, the law of libel should perforce "confront and be subordinated to" a constitutional privilege to defame.51 Surely in a field so tense, truthful statements by huge and influential newspapers are imperative. For as this Court said in Beauharnais, 343 U.S. 250 at 262:

"Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion."

The confrontation which the jury hoped to achieve was the confrontation of the Times with the truth.

The enormity of petitioner's wrong is clear. Hopefully the decision below will impel adherence by this immensely powerful newspaper to high standards of responsible journalism commensurate with its size.

48Hope v. Hearst Consolidated Publications, 294 F. 2d 681 (2d Cir.), cert. denied 368 U.S. 956 (One of Palm Beach's richest men caught his blonde wife in a compromising spot with a former FBI agent); Nieman-Marcus v. Lait, 13 F. R. D. 311 (S.D. N.Y. 1952) (immoral acts attributed to department store's 9 models and 25 salesmen); National Cancer Hospital v. Confidential, Inc., 136 N. Y. S. 2d 921 (libelous article about "hospital" gave cause of action to those who conducted hospital); Weston v. Commercial Advertisers, 184 N. Y. 479, 77 N.E. 660 (4 coroners); Bornmann v. Star Co., 174 N. Y. 212, 66N. E. 723 (charges about a hospital stall with 12 doctors in residence); Chapa v. Abernethy (Tex. Civ. App.), 175 S. W. 165 (charges about a posse); Gross v. Cantor, 270 N. Y. 93, 200 N.E. 592 (12 radio editors); Fullerton v. Thompson, 119 Minn. 136, 143 N. W. 260 (State Board of Medical Examiners, of which there were 9); Children v. Shinn, 168 Iowa 531, 150 N.W. 864 (Board of Supervisors); Reilly v. Curtiss, 53 N. J. 677, 84 A. 199 (an election board).

Commentators have agreed. See 3 Restatement of Torts, Sec. 564 (c), p. 152:

"[A] statement that all members of a school board or a city council are corrupt is sufficiently definite to constitute a defamatory publication of each member thereof." And see Developments in the Law—Defamation, 69 Harvard L. Rev. 894, et seq.

49 Times' petition for certiorari, p. 19. Even the Times does not follow the reckless averment of its friends that this suit is part of an "attempt by officials in Alabama to invoke the libel laws against all those who had the temerity to criticize Alabama's conduct in the intense racial conflict" (Brief of Washington Post, p. 8).

50 For example, the Times retracted for Patterson, but not for respondent. Obviously, the Times, while guilty of clear inconsistency, has nevertheless in Patterson's case sought to eliminate punitive damages by retraction, as permitted by Alabama statute.

51 Times petition, p. 20 and amici briefs generally.

"A free press is vital to a democratic society because its freedom gives it power. Power in a democracy implies responsibility in its exercise. No institution in a democracy, either governmental or private, can have absolute power. Nor can the limits of power which enforce responsibility be finally determined by the limited power itself. (Citation.) In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise. Most State constitutions expressly provide for liability for abuse of the press's freedom. That there was such legal liability was so taken for granted by the framers of the First Amendment that it was not spelled out. Responsibility for its abuse was imbedded in the law. The First Amendment safeguarded the right."52

These freedoms are amply protected when a newspaper in a state court can plead and prove truth; can plead and prove fair comment; and can plead and prove privilege. Even when it cannot, it can retract, show its good faith, and eliminate punitive damages. Alabama thus provides the very safeguards which, the Times and its friends argue, are essential to protect petitioner's constitutional rights.

When it can do none of these, and when it has indeed defamed in a commercial advertisement, no constitutional right, privilege or immunity expounded by this Court during its entire history shields a newspaper from damages in a common law libel suit.

The Times and its cohorts would have this Court abandon basic constitutional standards which have heretofore obtained and which Justice Harlan recently described:

"No member of this Court would disagree that the validity of state action claimed to infringe rights assured by the Fourteenth Amendment is to be judged by the same basic constitutional standards whether or not racial problems are involved."53

IV. The Times was properly before the Alabama courts.

1. Because both courts below held that the Times had made a general appearance,54 an adequate independent state ground as to jurisdiction over the Times in this suit is a bar to review here. Herb v. Pitcairn, 324 U.S. 117, 125–126; Murdock v. Memphis, 20 Wall. 590, 626; Fox Film Corporation v. Muller, 296 U.S. 207, 210; Minnesota v. National Tea Company, 309 U.S. 551, 556–557.

The Times intended to assert, and did, that the trial court was without jurisdiction of the subject matter of this action. Indeed, the Times still argues in this Court that there was no jurisdiction of the subject matter (Brief, p. 63). This act, alone, is a general appearance in Alabama and in a majority of state courts. In addition, the Times compounded its general appearance by other activities in the Alabama courts unrelated to the claimed lack of personal jurisdiction.

Petitioner argues that the Alabama Supreme Court has incorrectly interpreted its own decisions, and that the decision below is in error. This is obviously the wrong forum for such an argument.55

But even if an examination of state law were appropriate, the court below followed its earlier cases. Alabama has held, as have other states, that there is a clear distinction between jurisdiction of the person and subject matter. Constantine v. Constantine, 261 Ala. 40, 42, 72 So. 2d 831. A party's appearance in a suit for any purpose other than to contest the court's jurisdiction over the person is a general appearance.56

52 Frankfurter J., concurring in Pennekamp v. Florida, 328 U.S. 331, 355–356 (Footnotes omitted).

53NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 427 (dissenting opinion of Harlan, Clark and Stewart, J. J.).

54 A state court's interpretation of its own case law is binding here. Fox River Paper Company v. Railroad Commission, 274 U.S. 651, 655; Guaranty Trust Company v. Blodgett, 287 U.S. 509, 513; United Gas Pipeline Company v. Ideal Cement Company, 369 U.S. 134.

Texas, for example, long provided that any appearance at all was a general appearance. York v. Texas, 137 U.S. 15, 20.

55 See Footnote 54.

56Kyser v. American Surety Company, 213 Ala. 614, 616, 105 So. 689; Blankenship v. Blankenship, 263 Ala. 297, 303, 82 So. 2d 335; Thompson v. Wilson, 224 Ala. 299–300, 140 So. 439; Aetna Insurance Company v. Earnest, 215 Ala. 557, 112 So.145. And see Vaughan v. Vaughan, 267 Ala. 117, 121, 100 So. 2d 1:

"[R]espondent … by not limiting her appearance and by including non-jurisdictional as well as jurisdictional grounds in her motion to vacate has made a general appearance and has thereby waived any defect or insufficiency of service."

57Ex Parte Cullinan, 224 Ala. 263, 139 So. 255.

58Ex Parte Haisten, 227 Ala. 183, 149 So. 213.

The Alabama cases cited by the Times do not conflict with the decisions below. One case holds that a request for extension of time to file pleadings is not a general appearance;57 another recognized that defendant might have converted a special appearance into a general appearance, but held that even so a circuit court had authority to set aside a default judgment within thirty days, and denied an extraordinary writ;58 a third involved a limited attack on "the court jurisdiction over the person of defendant;"59 one did not even consider the question, since apparently neither the trial judge nor the parties had noticed it;60 one discussed the proper way to plead misnomer;61 and in the last two the defendants conceded jurisdiction of the person.62

Moreover, there is nothing novel about the Alabama holding of general appearance. This Court in such cases as Western Loan & Savings Company v. Butte, etc. Mining Company, 210 U.S. 368, 370 and Davis v. Davis, 305 U.S. 32, 42, as well as leading text writers,63 and the majority of the jurisdictions of this country have recognized the binding effect of this rule.64

Petitioner argues that the general appearance ground is an untenable non-federal one. Its cases simply do not support its contention. No novel state procedure, of which a party could not fairly be deemed to have been apprised, thwarted all means of raising a federal question.65 Nor is the Alabama rule—in accord with the majority one—an "arid ritual of meaningless form."66 Clearly beside the point is a case where an admitted special appearance by a party, an officer appointed to run the railroads for the federal government, was not deemed by the state court to be a special appearance for his successor.67

Nor do petitioner's cases (pp. 76–77) support the contention that even if there had been jurisdiction by consent because of the general appearance, the commerce clause forbids its exercise. These cases simply hold that a carrier must be given an opportunity to make a seasonable objection to court jurisdiction, and cannot be deprived of doing so by state machinery making a special appearance a general one. Cf. York v. Texas, 137 U.S. 15, 20. Alabama does permit a special appearance, and does not prevent a "seasonable motion." But when a foreign corporation makes, instead, a general appearance, the commerce clause does not bar the exercise of court jurisdiction by consent.

Davis v. O'Hara, 266 U.S. 314, 318, discussed by the Times (Brief, pp. 74–75) involved Nebraska, not Alabama law, and held that under Nebraska practice a special appearance was not required to object to jurisdiction over the person.

2. Even if the Times had not made a general appearance in this case, effective service of process is based on decisions of this Court so explicit as to leave no room for real controversy. The Times, having already argued that this Court should cast aside its many decisions permitting libel suits against newspapers, now asks this Court to cast aside its cases permitting tort actions against foreign corporations in states where those corporations do business. In short, the Times seeks absolute immunity on the merits, and jurisdictional immunity from suit outside New York state.

59St. Mary's Oil Engine Company v. Jackson Ice & Fuel Company, 224 Ala. 152, 155, 138 So. 834. See also Sessoms Grocery Co. v. International Sugar Feed Co., 188 Ala. 232; Terminal Oil Mill Co. v. Planters, etc. Co., 197 Ala. 429; and Dozier Lumber Co. v. Smith-Isberg Lumber Co., 145 Ala. 317, also cited by the Times.

60Harrub v. Hy-Trous Corp., 249 Ala. 414, 31 So. 2d 567.

61Ex Parte Textile Workers, 249 Ala. 136, 142, 30 So. 2d 247.

62Seaboard Ry. v. Hubbard, 142 Ala. 546, and Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 2d 441.

63Restatement of Conflict, § 82, Comment (b); and Kurland, The Supreme Court, The Due Process Clause and The In Personam Jurisdiction of State Courts, 25 U. of Chicago L. Rev. 569, 575:

"The mere appearance of a defendant in a lawsuit for a purpose other than to attack the jurisdiction of the court over him is considered a voluntary submission to the court's power."

64 25 A. L. R. 2d 835, 838 and 31 A. L. R. 2d 258, 265. New York itself prior to statutory amendment, held in Jackson v. National Grain Mutual Liability Company, 299 N. Y. 333, 87N. E. 2d 283, 285:

"Under its special appearance, the defendant company could do nothing but challenge the jurisdiction of the Justice's court over its person … (citation). Hence by its attempt to deny jurisdiction of the subject of the action, the company waived that special appearance and submitted its person to the jurisdiction of the court."

Civil Practice Act, § 273 (a), was necessary to enable a litigant to combine in New York an attack on jurisdiction of the person and of the subject matter without appearing generally in the action. Ray v. Fairfax County Trust Company, 186 N. Y. S. 2d 347.

65NAACP v. Alabama, 357 U.S. 449, and Wright v. Georgia, 373 U.S. 284.

66Staub v. City of Baxley, 355 U.S. 313, 320.

67Davis v. Wechsler, 263 U.S. 22.

The crucial test is simple. Did the Times have sufficient business contacts with Alabama so that suit against it there accorded with traditional concepts of fairness and orderly administration of the laws? International Shoe Company v. Washington, 326 U.S. 310, 319. The court below, and indeed the trial court, after painstaking analysis of the jurisdictional facts of record, held that there were sufficient contacts. The qualitative functions of a newspaper outlined in Consolidated Cosmetics v. DA PublishingCompany, 186 F. 2d 906, 908 (7th Cir. 1951), were carried on in Alabama.

The Times plainly maintained an extensive and continuous pattern of business activity in Alabama at least since 1956. The resident string correspondents and staff correspondents, who repeatedly came into Alabama, were a unique and valuable complement to the news gathering facilities of the Associated Press and United Press and other wire services upon which smaller newspapers rely. Such widespread news gathering facilities unquestionably increase the scope and detail of the Times' news columns, and enhance, accordingly, its prestige, its circulation, and the prices which it can command in the advertising market. In turn, these far-flung news gathering tentacles subject the Times to potential suit in the states into which they reach. If financial reward comes to the Times from its on-the-spot news coverage in Alabama, it is fair that citizens of Alabama should be able to sue the Times here when it has wronged them.

Scoffing at the quantitative size of its business activities in Alabama, the Times apparently ignored the most recent pronouncement of this Court in Scripto v. Carson, 362 U.S. 207, cited by the courts below. Scripto derived less than half of the revenue from Florida which the Times has derived from Alabama—and regular employees of the Times have combined their efforts with those of independent dealers to produce this result.

The Times attempts to distinguish Scripto by the inaccurate observation that "no issue of judicial jurisdiction was involved" (Brief p. 85). But this Court's opinion in Scripto stated that the Florida courts had "held that appellant does have sufficient jurisdictional contacts in Florida [to be made a collector of use tax] … We agree with the result reached by Florida's courts" (362 U.S. 207, 208). While the Times would argue that due process standards for jurisdiction to sue are stricter than those for jurisdiction to make a tax collector out of a foreign corporation, objective commentators have not agreed. The due process clause "might well be deemed to impose more stringent limitations on collection requirements than on personal jurisdiction."68

One contract negotiated entirely by mail with a predecessor company gave California sufficient contact with a successor insurance company. A default judgment against it was upheld. McGee v. International Insurance Company, 355 U.S. 220.69 Mail transactions alone enabled a Virginia Securities Commission to regulate an out-of-state insurance company. Travelers Health Association v. Virginia, 339 U.S. 643. And this Court, as noted in the decision below, commented upon more enlightened concepts resulting in expanded scope of state jurisdiction over foreign corporations. McGee v. International Insurance Company, 355 U.S. 220, 222–223. Moreover, state activity through the means of independent contractors, as distinguished from agents or employees, is without constitutional significance. Scripto v. Carson, 362 U.S. 207, 211. The Times does not cite Scripto on this point, but it is nevertheless the law.

A recent decision, interpreting Alabama's Substituted Service Statute, Callagaz v. Calhoon, 309 F. 2d 248, 256 (5th Cir. 1962) observed:

"Since [Travelers Health and McGee] it is established that correspondence alone may establish sufficient contacts with a state to subject a non-resident to a suit in that state on a cause of action arising out of those contacts."

Justice Black's dissenting opinion in Polizzi v. Cowles Magazines, 345 U.S. 663, 667, considered a magazine publisher subject to Florida libel suit, under old or new concepts, when its only contact there was two circulation road men who checked retail outlets in a multi-state area which included Florida. Presumably no reporting or advertising solicitation was carried on. Mr. Justice Black's opinion, which has been widely quoted as expressive of the prevailing view, found it manifestly unfair to make the plaintiff "bring his libel suit in a federal district court in the corporation's home state of Iowa … [and not] in a federal court in the state where Polizzi lived and where the criminal charges were likely to do him the most harm" (345 U.S. 663 at 668).

68Developments in the Law—Federal Limitations on State Taxation of Interstate Business, 75 Harvard L. Rev. 953, 998 (1962).

69 Noteworthy is the fact that the foreign corporation held amenable to California process had never solicited or done any insurance business in California apart from the policy involved. The "continuing legal relationship" on the basis of which the Times attempts to distinguish McGee (Brief, p.84) could not possibly consist of more than transmission of premiums by mail. Such "continuing legal relationship" scarcely compares with the vastly more extensive and continuing relationship which the Times maintained with Alabama according to evidence going back to 1956.

Obviously the case at bar does not present an instance of "forum shopping" such as was faced by Judge Hand in Kilpatrick v. T. & P. Ry. Co., 166 F. 2d 788 (2d Cir. 1948). The court's remarks (quoted Brief, p. 81) were directed to a Texas plaintiff, injured in Texas, who had brought his suit in New York. Even so, the district court was reversed for dismissing the plaintiff's action.

McKee, an Alabama resident, conducted all of the usual activities of a stringer for the New York Times. In addition, he performed the delicate task, to which he "naturally" fell heir, of investigating respondent's demand for retraction. The Times was efficaciously brought into court by service on McKee. It is inconceivable, for example, that if while helping Harrison Salisbury obtain material for his Alabama stories, Don McKee had run an automobile into a plaintiff, the Times could have escaped liability by maintaining that McKee was an independent contractor.

Similarly substituted service under the Alabama statute70 was valid. Alabama business activity of the Times preceded and followed the printing of this libelous material in New York. The ad itself was supposedly cleared on the basis of prior news gathering; it was later sent into Alabama by the Times, with a carrier as its agent, freight prepaid, with title passing on delivery to the consignee. Thence the issue went to newsstands for sale to the Alabama public, in accordance with the longstanding business practice of the Times.71

Scripto v. Carson, 362 U.S. 207, lays to rest the significance of any contention that sales to the public in Alabama were through the medium of independent contractors. It is not necessary for this Court to reach the question of whether isolated newsstand sales, disconnected from any other business activity in Alabama, would be a sufficient contact to sustain substituted service. This is not the case. For the Times has also solicited advertising and gathered news in a systematic and continuous fashion, and has thereby established a firm business connection with Alabama.72

Due process and the commerce clause do not immunize the Times from Alabama suit.

As Polizzi makes clear, newspapers are not to be in a special category. When other corporations may be sued in a foreign jurisdiction, so may they on similar facts. Newspaper corporations are no more entitled to the favored position which the Times and its friends would accord them than they are entitled to many other preferences for which they have unsuccessfully argued. In Mabee v. White Plains Publishing Co., 327 U.S. 178, 184, this Court held: "As the press has business aspects, it has no special immunity from laws applicable to business in general." This case concerned the applicability of the Fair Labor Standards Act to newspapers. This Court has likewise held newspaper corporations subject to the National Labor Relations Act, Associated Press v. N. L. R.B., 301 U.S. 103 and to the anti-trust laws, Lorain Journal Company v. United States, 342 U.S. 143.

70 Title 7, § 199 (1), Code of Alabama.

71 If the cases cited by the Times (Brief, pp. 79–80) are supposed to conflict with the decision below, they conflict also with the decisions of this Court cited in this section of respondent's brief and by the court below. They conflict, too, with such cases as Paulos v. Best Securities, Inc. (Minn.), 109N. W. 2d 576; WSAZ v. Lyons, 254 F. 2d 242 (6th Cir. 1958); Gray v. American Radiator Corporation, 22 Ill. 2d 432, 176 N.E. 2d 761; Sanders Associates, Inc. v. Galion Iron Works, 304 F. 2d 915 (1st Cir. 1962); Beck v. Spindler (Minn.), 99 N. W. 2d 670; and Smyth v. Twin State Improvement Corporation, 116 Vt. 569, 80 A. 2d 664. Moreover, the court in Insull v. New York World-Telegram, 273 F. 2d 166, 169 (7th Cir. 1959), indicated that its result would have been different if the newspaper "employ[ed] or ha[d] any reporters, advertising solicitors or other persons who are located in Illinois …"

72 A remarkably similar case is WSAZ v. Lyons, 254 F. 2d 242 (6th Cir. 1958), cited by the courts below. There the court upheld a Kentucky libel judgment against a foreign television station which had beamed the libelous television matter into Kentucky from outside the state. Service was had under a Kentucky statute covering causes of action "arising out of" or "connected" with the doing of business by foreign corporations in Kentucky. The court cited McGee and International Shoe. Moreover, it held irrelevant the fact that Kentucky produced only 1.03 per cent of the total annual advertising revenue.

73 But compare Times Brief, p. 81.

Hanson v. Denckla, 357 U.S. 235, relied upon by the Times as contrary to the decisions below, is easily distinguishable. As this Court pointed out, there was no solicitation of business in Florida by the foreign corporation, either in person or by mail. In the case at bar the Times solicited business in both manners. The cause of action in Hanson v. Denckla did not arise out of an act done or transaction consummated in the forum. On the contrary, this cause of action arose out of the very distribution of the newspapers by the Times in Alabama. Surely the Times cannot contend that its introduction of these newspapers in Alabama was involuntary.73 The foreign corporation in Hanson v. Denckla had received no benefit from the laws of the forum. The manifold business activities of the Times—news gathering, solicitation of advertising and distribution—have received the protection of Alabama laws.

Finally (Brief, pp. 86–88) the Times suggests that even though it might be amenable to suit in Alabama under due process standards, the commerce clause nevertheless bars the Alabama action. The most recent decision of this Court cited in support of this proposition was handed down in 1932. It seems scarcely necessary to observe that this Court, which has developed enlightened standards giving expanded scope to jurisdiction over foreign corporations in such cases as International Shoe, McGee, Travelers Health and Scripto will not grant review to turn the clock back to 1932, and invoke the rigid concepts of earlier days under the aegis of the commerce clause. And the Times must concede that this Court has not "hitherto" held that tort actions against foreign corporations—fairly subject to in personam jurisdiction—are unconstitutional as undue burdens on interstate commerce (Brief, p. 87).

Accordingly, even without a general appearance, the Times would have presented no unsettled federal question of jurisdiction for review by this Court on certiorari.

CONCLUSION

For the foregoing reasons it is respectfully submitted that the writ of certiorari should be dismissed as improvidently granted; in the alternative, respondent respectfully submits that this case should be affirmed.

Respectfully submitted, Robert E. Steiner III,
Sam Rice Baker,
M. Roland Nachman Jr.,
Attorneys for Respondent. Steiner, Crum & Baker,
Calvin Whitesell,
Of Counsel.

CERTIFICATE

I, M. Roland Nachman, Jr., of Counsel for Respondent, and a member of the bar of this Court, hereby certify that I have mailed copies of the foregoing Brief and of respondent's Brief in No. 40, Abernathy v. Sullivan, air mail, postage prepaid, to Messrs. Lord, Day & Lord, Counsel for petitioner, at their offices at 25 Broadway, New York, New York. I also certify that I have mailed a copy of the foregoing Brief, air mail, postage prepaid, to Edward S. Greenbaum, Esquire, 285 Madison Avenue, New York, New York, as attorney for American Civil Liberties Union and the New York Civil Liberties Union, as amici curiae; to Messrs. Kirkland, Ellis, Hodson, Chaffetz & Masters, attorneys for The Tribune Company, as amicus curiae, at their offices at 130 East Randolph Drive, Chicago 1, Illinois; and to William P. Rogers, Esquire, attorney for The Washington Post Company, as amicus curiae, at his office at 200 Park Avenue, New York 17, New York.

This … day of October, 1963.

… … … … … … … … … . .

M. Roland Nachman Jr.,

Of Counsel for Respondent.

APPENDIX A

Title 7, Section 909 of the Code of Alabama:

"TRUTH OF THE WORDS, ETC., EVIDENCE UNDER THE GENERAL ISSUE.—In all actions of slander or libel, the truth of the words spoken or written, or the circumstances under which they were spoken or written, may be given in evidence under the general issue in mitigation of the damages."

Truth specially pleaded is an absolute bar to a civil libel action, Webb v. Gray, 181 Ala. 408, 62 So. 194; Ripps v. Herrington, 241 Ala. 209, 212, 1 So. 2d 899; Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 2d 441.

Title 7, Section 910 of the Code of Alabama:

"LIBEL OR SLANDER; DEFAMATORY MATTER.—In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove, on the trial, the facts showing that the defamatory matter was published or spoken of him."

Title 7, Section 913 of the Code of Alabama:

"RETRACTION MITIGATES DAMAGES.—The defendant in an action of slander or libel may prove under the general issue in mitigation of damages that the charge was made by mistake or through inadvertence, and that he has retracted the charge and offered amends before suit by publishing an apology in a newspaper when the charge had been thus promulgated, in a prominent position; or verbally, in the presence of witnesses, when the accusation was verbal or written, and had offered to certify the same in writing."

Title 7, Section 914 of the Code of Alabama:

"AGGRIEVED PERSON MUST GIVE NOTICE TO PUBLISHERS OF ALLEGED LIBEL BEFORE VINDICTIVE DAMAGES CAN BE RECOVERED.—Vindictive or punitive damages shall not be recovered in any action for libel on account of any publication concerning the official conduct or actions of any public officer, or for the publication of any matter which is proper for public information, unless five days before the bringing of the suit the plaintiff shall have made written demand upon the defendant for a public retraction of the charge or matter published; and the defendant shall have failed or refused to publish within five days in as prominent and public a place or manner as the charge or matter published occupied, a full and fair retraction of such charge or matter."

Title 7, Section 915 of the Code of Alabama:

"WHEN ACTUAL DAMAGES ONLY RECOVERABLE.—If it shall appear on the trial of an action for libel that an article complained of was published in good faith, that its falsity was due to mistake and misapprehension, and that a full correction or retraction of any false statement therein was published in the next regular issue of said newspaper, or in case of daily newspapers, within five days after service of said notice aforesaid, in as conspicuous a place and type in said newspaper as was the article complained of, then the plaintiff in such case shall recover only actual damages."

Title 7, Section 916 of the Code of Alabama:

"RECANTATION AND TENDER; EFFECT OF.—If the Defendant, after or before suit brought, make the recantation and amends recited in the preceding sections, and also tender to the plaintiff a compensation in money, and bring the same into court, the plaintiff can recover no costs, if the jury believe and find the tender was sufficient."

Title 7, Section 917 of the Code of Alabama:

"EFFECT OF TENDER RECEIVED.—The receipt of the money tendered, if before suit brought, is a bar to the action; if after suit, releases the defendant from all damages and costs, except the costs which accrued before the tender and receipt of the money."

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Brief for Respondent

Brief for Respondent

In the Supreme Court of the United States
October Term, 1963
No. 40

RALPH D. ABERNATHY ET AL., PETITIONERS,
V.
L. B. SULLIVAN, RESPONDENT

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA
BRIEF FOR RESPONDENT1

Steiner, Crum & Baker,
1109–25 First National Bank Building,
Montgomery 1, Alabama,
Calvin Whitesell,
Montgomery, Alabama
Of Counsel.
Robert E. Steiner III.,
Sam Rice Baker,
M. Roland Nachman Jr.,
Attorneys for Respondent

Index

Opinions Below

Jurisdiction

Questions Presented

Statutes Involved

Statement

  1. Matters outside the record which petitioners did not raise in the trial court, but attempted to raise for the first time in the Supreme Court of Alabama
  2. Matters outside the record which petitioners did not seek to raise in the trial court or in the Supreme Court of Alabama
  3. Matters raised below but concluded to petitioners' apparent satisfaction at the time
  4. Matters foreclosed from the statement of facts by virtue of petitioners' improper procedure below

Summary of Argument

Argument

  1. This court will not go outside the record to consider federal questions which were not timely raised in accordance with state procedure
  2. There was ample evidence of petitioners' publication for submission to a jury
    1. Silence as admission
    2. Petitioners ratified and acquiesced in the use of their names on the advertisement

Conclusion

Certificate

Appendix A

OPINIONS BELOW

The opinion of the Supreme Court of Alabama (R. 1139) is reported in 273 Ala. 656, 144 So. 2d 25.

JURISDICTION

Petitioners have sought to invoke this Court's jurisdiction under 28 U.S.C., § 1257 (3).

QUESTIONS PRESENTED

1. Will this Court review a state jury verdict in a private common law libel action, embodied in a final state judgment and affirmed by a state's highest appellate court, when alleged federal questions asserted in this Court were not timely raised below in accordance with state procedure, and when there is nothing in the record to support the allegations of the petition and brief?

2. Is there a constitutionally guaranteed absolute privilege to defame an elected city official, under guise of criticism, in a paid newspaper advertisement so that participants in the publication of this defamation are immune from private common law libel judgment in a state court in circumstances where, because of the admitted falsity of the publication, the participants are unable to plead truth, privilege or retraction (to show good faith and eliminate punitive damages)?

3. Are libelous utterances in a paid newspaper advertisement within the area of constitutionally protected speech and press?

1 To conserve the time of this Court the brief filed by this respondent in No. 39, New York Times Company v. Sullivan, will be referred to throughout this brief when the same issues have been covered there.

4. When persons whose names appear on a defamatory newspaper advertisement as "warm endorsers" of the advertisement do not deny participation in its publication in response to a demand for retraction which charges publication, and ratify by silence, and when there is other evidence of authority for use of their names on the advertisement, will this Court re-examine a state jury verdict of liability in a private common law libel action, embodied in a final judgment affirmed by the highest state appellate court on a record which a Federal Court of Appeals has found to contain state questions of "substance" which could "go either way." on a bare assertion that the same record is totally devoid of evidence of petitioners' participation in the publication of this defamatory advertisement?

5. When an admittedly false newspaper advertisement charges that city police massively engaged in rampant, vicious, terroristic and criminal actions in deprivation of the rights of others, is a state court holding in a private common law libel action that such an utterance is libelous as a matter of state law—leaving to the jury the questions of publication, identification with the police commissioner, and damages—an infringement of constitutional rights of a participant in the publication of the libel?

6. When a paid newspaper advertisement published in circumstances described in Questions 2 and 4 contains admittedly false charges described in Question 5 about police action in a named city, may this Court consistently with its decisions and the 7th Amendment review on certiorari a state jury finding that the publication is "of and concerning" the city police commissioner whose name does not appear in the publication, and an award of general and punitive damages to him, when this state jury verdict embodied in a final state judgment has been approved by the state's highest appellate court?

7. May this Court consistently with its decisions and the 7th Amendment re-examine facts tried by a state jury when those findings have been embodied in a final state judgment affirmed by the highest state appellate court, and when review is sought on assertions that the verdict is wrong and the general and punitive libel damages merely excessive?

STATUTES INVOLVED

Statutes referred to in this brief are contained in an appendix.

STATEMENT

Petitioners, whose names appeared in a paid advertisement in the New York Times of March 29, 1960 (described in No. 39) as "warm endorsers" of the material contained in the advertisement, were joined as co-defendants in a common law libel action against The New York Times. The nature of the ad as a defamation, and not a political expression; its extensive falsity, not one "minor discrepancy" (Brief pp. 11, 17 and 42);2 its reference to respondent; the questions of libel per se and truth as a limitation on libelous utterances; the circumstances of the ad's composition, publication and distribution; and other relevant facts of record are fully discussed in respondent's brief in No. 39. As observed there, these petitioners, two residents of Montgomery, and all residents of Alabama, introduced no testimony whatever to attempt to substantiate in any manner the truth of the defamatory material in the advertisement. Nor did they plead specially truth, or privilege.

The jury returned a joint verdict against The New York Times and petitioners in accordance with Alabama procedure,3 for Five Hundred Thousand Dollars, and the trial court entered a judgment thereon.

In the case which was tried below, as distinguished from the case which petitioners attempt to bring in this Court, the only alleged defect of due process which petitioners asserted at the trial was a contention that there was an entire absence of evidence connecting them with the publication of the advertisement.

2 Petitioners are entirely inaccurate in their observation that other "alleged inaccuracies in the ad were conceded by respondent Sullivan to refer to matters within the jurisdiction of the State Education Department or other agencies, and to matters occurring long prior to respondent's taking office" (Brief, p. 12).

3 Such a joint verdict against joint tort-feasors is required by Alabama procedure, Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612. It is, of course, collectible only once.

Petitioners filed motions for new trial but allowed them to lapse (R. 984, 999, 1013, 1028). Petitioners' assertion that there was a "general understanding" (Brief, pp. 14–15) which should have prevented this lapse and which was violated by the trial court and presumably by respondent's attorneys is absolutely contrary to fact. The record is barren of even a hint of such an understanding. The record shows that petitioners' then attorneys (none of whom have appeared in this Court) made no attempt to continue the motion within each thirty day period as required by Alabama statutory and case law. The Times' attorneys obviously were unaware of such an "understanding" since they continued The Times' motion from January 14, 1961 to February 10, 1961 (R. 968) and from February 10, 1961 to March 3, 1961 (R. 968), when the motion was heard. Moreover, none of the assignments of error in the Supreme Court of Alabama relating to their motion for new trial (R. 1100–1132) even mentioned that there was any "understanding." Clearly there was not. And clearly the motion lapsed.4

The court below affirmed the judgment as to all defendants.

At the trial petitioners denied any connection with the publication of the advertisement. But contrary to what petitioners would have this Court believe, their denial was far from "undisputed", as this record and the following summary of it make clear. Certainly the jury was not required as a matter of law to believe petitioners' protestations of innocence.

Respondent showed at the trial that the names of the petitioners were on the advertisement. They did not reply to respondent's demand for retraction, and their silence in the face of the demand's inculpatory charges that each published the libel under circumstances normally calling for a reply, was evidence from which a jury could find that they had admitted the statements contained in the demand, namely, that they had published the material in the ad. Their failure to deny publication—not their failure to retract—is the basis of the admission.

Moreover, petitioners' silence, and their failure in any manner to disavow the advertisement, constituted a ratification.

In addition, a letter from A. Philip Randolph (R. 587) went to the jury without objection from petitioners as part of The Times' answer to an interrogatory asking for authorization from the signers of the advertisement.5

Though petitioners recite that "undisputed" evidence (Brief, pp. 8 and 46) established that their names were not on the Randolph letter, and called the contrary finding below "distorted," the sworn answers to the interrogatories were in evidence, and Times witness Redding, according to the Times' brief in this Court, "did not recall this difference in the list of names …" (Times Brief in No. 39, p. 16).

A witness for the Times, Aaronson, testified without objection from petitioners, that the Randolph letter was a "written communication confirming the fact that the persons whose names were given here had authorized it" (R.739), and that such a letter was "our usual authorization" (R. 740). Murray, the author of the ad, a witness for petitioners, testified that the executive director of the committee which inserted the ad, one Bayard Rustin, had stated that the southern ministers, including petitioners, did not have to be contacted or consulted since they were all members of the Southern Christian Leadership Conference, and supported the work of the committee (R. 809).

4 Title 13, § 119, Code of Alabama, 1940 (App. A. p. 29); Mount Vernon Woodbury Mills v. Judges, 200 Ala. 168, 75 So. 916; Ex parte Margart, 207 Ala. 604, 93 So. 505; Southern Ry. Co. v. Blackwell, 211 Ala. 216, 100 So. 215.

5 This letter stated:

"This will certify that the names included on the enclosed list are all signed members of the Committee to Defend Martin Luther King and The Struggle for Freedom in the South. Please be assured that they have all given me permission to use their names in furthering the work of our Committee."

6 The painstaking analysis of the Court of Appeals revealed:

1. "(The complaint) alleges that on or about March 29, 1960, 'supporters of the plaintiffs and the movement for equality which they lead' inserted in The New York Times a paid advertisement …" (295 F. 2d at 453).

2. The advertisement "purports to be signed by twenty ministers including the four plaintiffs" (295 F. 2d at 454).

3. "The complaint then alleges: 'The defendants … conspired and planned … to deter and prohibit the plaintiffs and their supporters as set forth above, from utilizing their constitutional rights and in particular their right to access to a free press, by instituting fraudulent actions in libel against the plaintiffs …' " (295 F. 2d at 454).

4. "Irreparable damage is alleged, as follows: ' … (b) … the plaintiffs herein … will be deterred from using the media of a free press and all other rights guaranteed under the 1st Amendment …' " (295 F. 2d at 454).

5. "The relief prayed for is as follows: '… (c) … Restraining each of the defendants … from engaging in the aforesaid conspiracy designed to deter and prohibit the plaintiffs from exercising rights guaranteed by the 1st and 14th Amendments with respect to freedom of speech, press …' " (295 F. 2d at 455).

6. "As has been noted (on page 454), the plaintiffs' claim of irreparable injury and loss is based (1) upon the claim that 'the plaintiffs and the Negro citizens of the State of Alabama will be deterred from using the media of a free press …' " (295 F. 2d at 456).

7. "Libelous utterances or publications are not within the area of constitutionally protected speech and press. The plaintiffs' claim that they will be deterred from using the media of a free press must therefore be predicated upon their claims of denial of a fair and impartial trial of the libel actions and the absence of a plain, adequate and complete remedy at law" (295 F. 2d at 456–457).

While not in this record, the report of Abernathy v. Patterson, 295 F. 2d 452 (5th Cir.), cert. den. 368 U.S. 986, shows that the complaint of these petitioners in that case verified by oath of Petitioner Abernathy strongly underlines the correctness of the jury verdict.6

The foregoing states the facts relating to this case.

The following matters, stated by petitioners to be in this case, are not.

A. Matters outside the record which petitioners did not raise in the trial court, but attempted to raise for the first time in the Supreme Court of Alabama

1. An alleged racially segregated court room. There is nothing in the record to support this. It was not raised in the trial court. Had it been, respondent would have strongly controverted the allegation as entirely untrue.7

2. An alleged "atmosphere of racial bias, passion and hostile community pressures" (Petition, p. 2). This was not raised in the trial court. There was no motion for change of venue, continuance, or for mistrial, though three lawyers represented the petitioners and five represented The New York Times at the trial (R. 567–568). Their silence in this regard speaks eloquently for the fair and impartial manner in which the trial judge conducted the trial. There is nothing in the record to support this allegation.

3. Alleged improper newspaper and television coverage at the trial. This was not raised in the trial court, nor were there motions for mistrial, change of venue, or continuance. There is nothing in the record to support the allegations. Had there been timely trial motions attacking the propriety of newspaper and television coverage of the trial, respondent would have strongly controverted them.

4. Alleged intentional and systematic exclusion of Negroes from the jury. This was not raised in the trial court and there is nothing in the record to support the allegation. Had the allegation been made, respondent would have strongly controverted it.8

5. Alleged unqualified trial judge—illegally elected and illegally a member of the county jury commission. This matter was not raised in the trial court. There was no motion seeking disqualification of the trial judge. There is nothing in the record to support the allegation. Had the charge been made in timely fashion, it would have been strongly controverted.

6. Alleged improper closing argument of one of the attorneys for respondent. There is nothing in the trial record about this. No objection to any argument of any attorney is in the record. There was no motion for mistrial. Had such objection or motion been made, respondent would have strongly controverted any suggestion of an improper argument. It is noteworthy that the Times makes no such allegation in this Court.

7 Petitioners tell this Court that court room segregation "has been judicially noted to be a longstanding practice in the state courts of Alabama …" (Brief, p. 53). They cite U.S. ex rel. Seals v. Wiman, 304 F. 2d 53 (5th Cir. 1962). But that case specifically held that the question of a segregated courthouse, there sought to be raised, "[was] not presented to the State courts on the appeal from the judgment of conviction, on the petition for leave to file coram nobis, or in any other manner. Those questions cannot therefore be considered here" (304 F. 2d at 56).

8 When this question was appropriately raised in a recent case, the method of selecting Montgomery County juries passed constitutional muster in this Court. Reeves v. Alabama, 355 U.S. 368, dismissing the writ of certiorari "as improvidently granted."

9 (R. 1165) citing Thomason v. Silvey, 123 Ala. 694, 26 So. 644; and Alabama Gas Company v. Jones, 244 Ala. 413, 13 So. 2d 873.

The record references contained in petitioners' brief on some of these points concern testimony offered by The Times in support of its motion for new trial, after petitioners' motion had lapsed. As the court below held, the trial court correctly excluded such evidence under the well-settled Alabama rule that only when newly discovered evidence is the basis for a motion for new trial is the trial court permitted to extend the hearing to matters not contained in the record of the trial.9 Obviously the Times and these petitioners realize that the trial court ruling was correct. No petitioner challenges the ruling of the courts below here. Unlike the Times, however, these petitioners simply cite this rejected material as evidence anyway, and ask this Court to consider matters outside the record which were not raised in the trial below.

B. Matters outside the record which petitioners did not seek to raise in the trial court or in the Supreme Court of Alabama

1. Petitioners object to the court reporter's transcript designation of their attorneys as "Lawyer." This matter was not raised in either court below. The record was obviously transcribed by the court reporter after the trial was over. It was prepared at the instance of The New York Times; filed by The Times with the clerk of the trial court; and "joined in" by these petitioners (R. 1031). Under Alabama procedure, these petitioners had an opportunity to make any objection to the transcript which they desired, and to bring the matter to the attention of the trial court for ruling.10 Moreover, the transcript, noting appearances, refers to these, and all other attorneys, as "Esq." (R. 567–568).

Obviously these designations by the court reporter are his own, and were made after the trial had closed. They do not purport to be, nor are they, quotations of the manner of address used by the attorneys in the case or by the trial judge. A search of the record reveals that only an attorney for the New York Times used this form of address in the proceedings before the trial court without a jury.11

2. Petitioners object to an alleged statement by the trial judge regarding "white man's justice," said to have been made by him three months after this trial concluded. The matter was not raised in either court below. There was no motion to disqualify the judge.

But this record does reveal that this judge stated to the jury in his oral charge (R. 819–20):

"Now, one other thing I would like to say although I think it is hardly necessary—one of the defendants in this case is a corporate defendant and some of the others belong to various races and in your deliberation in arriving at your verdict, all of these defendants whether they be corporate or individuals or whether they belong to this race or that doesn't have a thing on earth to do with this case but let the evidence and the law be the two pole stars that will guide you and try to do justice in fairness to all of these parties here. They have no place on earth to go to settle this dispute except to come before a Court of our country and lay the matter before a jury of twelve men in whose selection each party has had the right to participate and out of all the jurors we had here at this term of Court, some fifty jurors, the parties here have selected you because they have confidence in your honesty, your integrity, your judgment and your common sense. Please remember, gentlemen of the jury, that all of the parties that stand here stand before you on equal footing and are all equal at the Bar of Justice."

3. The allegation that there was a "general understanding" about petitioners' motion for new trial has already been covered. The point was not raised in either court below.

4. The allegation that an all-white jury deprived petitioners of their rights. This allegation was not made in either court below. Any such allegation of misconduct on the part of the jury would have been strongly controverted by respondent.

5. The pendency of other libel suits is a matter entirely outside this record; and not presented in either court below. The utter desperation involved in this attempt to bring in other libel suits is fully discussed in respondent's Brief in Opposition in No. 39. The argument will not be repeated here. The baseless and totally unfounded charge that this case is "part of a concerted, calculated program to carry out a policy of punishing, intimidating and silencing all who criticize and seek to change Alabama's notorious political system of enforced segregation" (Brief, p. 29) is simply a figment of the imagination of petitioners and their appellate lawyers. The charge is totally without foundation in the record or in fact. Significantly, none of the numerous attorneys representing the Times and these petitioners at the trial even questioned respondent about such a preposterous matter.

6. Alleged "deliberate, arbitrary, capricious, and discriminatory misapplications of law" (Petition, p. 12). It is impossible to determine what the reference is. It cannot have been raised in either court below.

10 Title 7, § 827 (1a), Alabama Code, Appendix A, p. 27.

11 "Mr. Embry: … I will read Lawyer Gray's examinations"(R. 550).

"Mr. Embry: At this time, your Honor, Lawyer Gray said, 'That's all' " (R. 551).

It is not clear from petitioners' brief whether they claim that these matters outside the record (sub-heads "A" and "B") were raised by "steps" said to have been taken "to preserve their constitutional rights"(Brief, p. 14). Petitioners summarize these "steps" as demurrers to the complaint; objections to the admission of evidence; motions to exclude evidence as insufficient; motions for special jury findings; written requests to charge the jury; and motions for directed verdict in their favor (Brief, p. 14). Obviously, such "steps" could not raise the foregoing points in "A" and "B" under any known rules of practice. It is perfectly plain that the questions were never presented at the trial. And later observations that the questions are "inherent and implicit in the trial transcript" (Brief, p. 59), and "shockingly manifest outside the transcript as well" (Brief, p. 60), reveal clearly that petitioners, too, know these matters were never raised, and are not part of the record before this Court.

C. Matters raised below but concluded to petitioners' apparent satisfaction at the time

This category relates to the pronunciation of the word "Negro." This entirely spurious objection vanished when, whatever the pronunciation had been, the pronouncing attorney was told to "read it just like it is" (R. 579). That was the end of the matter. No further objection was lodged by counsel for these petitioners, even though respondent's counsel spoke the word on at least a dozen additional occasions.12 Moreover, there is nothing in the record to show precisely how the word was pronounced.

D. Matters foreclosed from the statement of facts by virtue of petitioners' improper procedure below

When petitioners allowed their motions for new trial to lapse, they were foreclosed from raising questions regarding alleged excessiveness of the verdict or alleged insufficiency of the evidence.13

SUMMARY OF ARGUMENT14

I.

When the only defect of procedural due process asserted at the trial was an alleged entire absence of evidence connecting petitioners with the publication of the ad, they cannot go outside the record and seek to present to this Court new matters—none of which were raised in the trial court, and many of which were not asserted in the Supreme Court of Alabama. Included in this category are those arguments in this Court which allege a segregated trial courtroom; a hostile and prejudiced trial atmosphere; improper newspaper and television coverage of the trial; illegal composition of the jury; improper argument of one of the lawyers for respondent; improper court reporter's designation of petitioners' attorneys in the appellate transcript of the record prepared many months after the trial was over; improper statements allegedly made by the trial judge three months after the trial had ended; pendency of other libel suits by different plaintiffs, against different defendants, regarding different publications, in different communications media, brought in different forums, with different attorneys, and different issues; illegal election of the trial judge.

Had these allegations been made before or during the trial, they would have been strongly controverted. Since these assertions of alleged federal questions were not made in timely fashion, this Court will not go outside the record to consider them. Stroble v. California, 343 U.S. 181, 193–194 (charges of inflammatory newspaper accounts and community prejudice); Michelv. Louisiana, 350 U.S. 91 (systematic exclusion of Negroes from grand jury panels not raised in time); Edelman v. California, 344 U.S. 357, 358–359 (vagueness of vagrancy statute not raised at the trial); Stembridge v. Georgia, 343 U.S. 541, 547 (federal rights asserted for first time in state appellate court); Bailey v. Anderson, 326 U.S. 203, 206–207 (same holding); Herndonv. Georgia, 295 U.S. 441, 443 (trial court rulings not preserved in accordance with state practice); Hanson v. Denckla, 357 U.S. 235, 243–244.

Since petitioners allowed their motions for new trial to lapse, they may not question the size of the verdict against them or the sufficiency of the evidence. State v. Ferguson, 269 Ala. 44, 45, 110 So. 2d 280; Shelley v. Clark, 267 Ala. 621, 625, 103 So. 2d 743.

Moreover, it is noteworthy that the Times does not argue that the trial proceedings were defective or that they were other than fair and impartial.

12 R. 580; 581; 592; 593; 631; and 656.

13State v. Ferguson, 269 Ala. 44, 45, 110 So. 2d 280; Shelley v. Clark, 267 Ala. 621, 625, 103 So. 2d 743.

14 Respondent refers this Court to his summary of argument in New York Times Company v. Sullivan, No. 39, where applicable. Respondent has there set out a summary of the constitutional questions relating to the substantive Alabama law of libel as applied in this case. Those arguments will not be repeated in this brief.

II.

The only federal question of due procedure raised at the trial was whether there was any evidence connecting petitioners with the publication of the ad. Positive evidence of authority for the use of their names on the ad, supplemented by evidence of their conduct and admissions, proved the case against petitioners for submission to a jury.

Their names were on the ad; and the Randolph letter, according to the Times' answers to interrogatories, showed authorization.

In addition, petitioners did not reply to Sullivan's demand for retraction which expressly charged them with publication. Their silence in the face of the inculpatory charges contained in this demand, under circumstances normally calling for a reply, was evidence from which a jury could find an admission of the statements contained in the letters demanding retraction. This failure to deny publication—not their failure to retract—is the basis of admission. A litigant will not be heard to say that his extra-judicial statements or conduct, inconsistent with his position taken at the trial, is so little worthy of credence that the trier of fact should not even consider them. Parks v. New York Times Company, 308 F. 2d 424 (5th Cir. 1962); Perry v. Johnston, 59 Ala. 648, 651; Peck v. Ryan, 110 Ala. 336, 17 So. 733; Craft v. Koonce, 237 Ala. 552, 187 So. 730; Sloss-Sheffield Co. v. Sharp, 156 Ala. 284, 47 So. 279; Annotation 70 A. L. R. 2d 1099; Wigmore on Evidence, § 1071; Morgan on Admissions, included in Selected Writings on Evidence, p. 829.

Closely allied to the doctrine of silence as admission is the equally well-established principle that one may ratify by silence and acquiescence the act of another, even though the persons involved are strangers. This Alabama rule applies whether or not there is a preexisting agency relationship. Parks v. New York Times Company, 308 F. 2d 424 (5th Cir. 1962); Birmingham News Co. v. Birmingham Printing Co., 209 Ala. 403, 407, 96 So. 336, 340–341; Goldfield v. Brewbaker Motors (Ala. App.), 36 Ala. App. 152, 54 So. 2d 797, cert. denied 256 Ala. 383, 54 So. 2d 800; Woodmen of the World Ins. Co. v. Bolin, 243 Ala. 426, 10 So. 2d 296; Belcher Lumber Co. v. York, 245 Ala. 286, 17 So. 2d 281; 1 Restatement of Agency 2d, Sec. 94, page 244; Comments (a) and (b); 3 Restatement of Agency 2d (App. pages 168 and 174).

III.

Libelous utterances are not within the area of constitutionally protected speech and press. Rothv. United States, 354 U.S. 476, 483; Beauharnais v. Illinois, 343 U.S. 250, 256; Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572; Konigsberg v. State Bar of California, 366 U.S. 36, 49–50; Nearv. Minnesota, 283 U.S. 697, 715.

ARGUMENT

I. This court will not go outside the record to consider federal questions which were not timely raised in accordance with state procedure

This brief should be stricken for failure to comply with Rule 40 (5) of the Rules of this Court.15 In addition to the matters outside the record which were not raised in the trial court, and in some instances not even in the Supreme Court of Alabama, petitioners' brief contains lengthy expositions of cases and other materials relating to racial matters involving peonage, education, voting, housing and zoning, public transportation, parks, libraries, petit and grand jury service, municipal boundaries, and reapportionment. In the aggregate, such material and excursions from the record consume almost forty-five per cent of petitioners' brief.

Quite apart from the duty of attorneys to confine issues and discussions to matters appearing in the record, particularly when seeking review in this Court, it is noteworthy that not one of the attorneys appearing here for these petitioners was their counsel in the trial court and none was present there. These appellate attorneys are, therefore, peculiarly unqualified to comment on matters not in the record.

This Court will surely note that the brief of The New York Times in No. 39 does not support petitioners' characterization of the trial proceedings. Several of its attorneys were personally present at the trial; participated in it; and know how it was conducted. They make no complaints of trial unfairness.

15 "Briefs must be compact, logically arranged with proper headings, concise, and free from burdensome, irrelevant, immaterial, and scandalous matter. Briefs not complying with this paragraph may be disregarded and stricken by the Court."

This is the second time petitioners have brought their baseless charges here. Their petition in Abernathy v. Patterson, 368 U.S. 986, climaxed a parade of these same groundless attacks through the entire federal judiciary. The District Court called them "impertinent"; the Court of Appeals upheld that court's dismissal of the complaint, 295 F. 2d 452 and this Court denied certiorari.

It is too elemental for argument that this Court will not go outside the record to consider alleged federal questions which were not timely raised in accordance with state procedure. Stroble v. California, 343 U.S. 181, 193–194 (charges of inflammatory newspaper accounts and community prejudice); Michel v. Louisiana, 350 U.S. 91 (systematic exclusion of Negroes from grand jury panels not raised in time); Edelman v. California, 344 U.S. 357, 358–359 (vagueness of vagrancy statute not raised at the trial); Stembridge v. Georgia, 343 U.S. 541, 547 (federal rights asserted for first time in state appellate court); Bailey v. Anderson, 326 U.S. 203, 206–207 (same holding); Herndon v. Georgia, 295 U.S. 441, 443 (trial court rulings not preserved in accordance with state practice); Hanson v. Denckla, 357 U.S. 235, 243–244:

"We need not determine whether Florida was bound to give full faith and credit to the decree of the Delaware Chancellor since the question was not seasonably presented to the Florida court. Radio Station WOW v. Johnson, 326 U.S. 120, 128."

Thus, aside from the question of whether petitioners have an asserted absolute privilege to defame public officials under the guise of criticism, and thereby to avoid Alabama libel laws—a matter fully discussed in respondent's brief in No. 39, incorporated herein by reference—the only question which petitioners can argue on this record is whether it is "devoid of probative evidence of authorization or publication by any of the petitioners of the alleged libel or of any malice on their part" (Brief, p. 44).

As this Court held in Garner v. Louisiana, 368 U.S. 157, 163–164:

"As in Thompson v. Louisville (citation), our inquiry does not turn on a question of sufficiency of evidence to support a conviction, but on whether these convictions rest upon any evidence which would support a finding that the petitioners' acts caused a disturbance of the peace." (Emphasis supplied.)

II. There was ample evidence of petitioners' publication for submission to a jury

Positive evidence of authority for use of their names on the ad, supplemented by evidence of their conduct and admissions, proved the case against petitioners for submission to a jury.

Their names were on the ad; they did not reply to Sullivan's demand for a retraction which expressly charged them with publication, and their silence in the face of the inculpatory charges contained in the demand for retraction, under circumstances normally calling for a reply, was evidence from which a jury could find an admission of the statements contained in the letters demanding retraction. This admission came from their failure to deny publication—not their failure to retract.

Moreover, their silence and their failure in any manner to disavow the ad constituted a ratification.

The Randolph letter, according to The Times' answers to interrogatories, showed authorization. Testimony of Murray and of The Times' witness, Aaronson, has been cited. Clearly such evidence permitted a jury to decide where the truth lay. And, as pointed out, the sworn complaint in Abernathy v. Patterson, 295 F. 2d 452 (5th Cir.), cert. denied 368 U.S. 986, strongly corroborated the correctness of this verdict.

The Alabama trial court and Supreme Court held that there was a jury question on the issue of petitioners' liability as participants in the publication. The Court of Appeals in Parks v. New York Times Company, 308 F. 2d 474 (5th Cir.1962), held that the position of this respondent in the state courts had substance, and that on the question of liability of these petitioners the judgment could "go either way" (308 F. 2d at 480–481). This is the classic situation for jury determination.

It is impossible to understand petitioners' assertion here that the Court of Appeals reversed the District Court "on other grounds" (Brief, p. 44). This erroneous assertion is simply in direct conflict with the holding of the Court. Moreover, in view of the Court's extensive and exhaustive discussion of silence in the face of the inculpatory charges in the demand for retraction as evidence from which a jury could "infer ratification or adoption" (308 F. 2d at 479), it is inconceivable that petitioners argue here (Brief, p. 45) that Parks "is clearly shown by the Opinion to rest on matters not contained in the Record in this case …" The very record on the merits in this case was introduced in the District Court in Parks.

The Alabama courts and the Federal Court of Appeals were clearly correct. Petitioners, in their lengthy brief, do not even attempt to challenge the legal authorities cited by respondent in his brief in opposition (pp. 15–18) except to say that they are inapplicable (Brief, pp. 48–49). But they are not, and give solid support to the jury finding of petitioners' liability.

A. Silence as admission

1. Petitioners' silence was an admission. This failure to deny publication—not their failure to retract—is the basis of the admission. Petitioners seem unable to distinguish between a retraction and a denial of publication. It is as simple as the rationale of admissions—that a litigant will not be heard to say that his extra-judicial statements or conduct inconsistent with his position taken at the trial, is so little worthy of credence that the trier of facts should not even consider them.16

The Legislature of Alabama, too, has given considerable importance to a demand for retraction in libel cases. Title 7, § 914, Code of Alabama (App. A of Brief in No. 39). The plaintiff in a libel suit such as this may not obtain punitive damages unless he seeks retraction from the defendant; and a defendant may eliminate his liability for punitive damages by retracting.

In much less compelling circumstances, Gould v. Kramer, 253 Mass. 433, 149 N. E. 142, 144, held that an admission of the truth of a letter charging defendant with authorship of another letter which had defamed the plaintiff could be considered from the silence of the defendant on receiving the written charge. This suit sought damages for false and malicious statements made by the defendant about the plaintiff in a letter to plaintiff's employer. Defendant contended that he had not signed or authorized the libelous matter contained in the letter.

While the principle of silence as an admission has been held not to obtain when the inculpatory statement was made in an unanswered letter, a well-recognized exception to this letter principle occurs where the unanswered letter contains a demand, or where it is part of a mutual correspondence.17

2. The absurd argument in petitioners' brief (pp. 49–52) that this rule of admissions—long a part of the law of evidence throughout this country—somehow violates a fancied federal right deserves no answer. It is undoubtedly based upon the inability of petitioners to distinguish between a denial of publication and a retraction. A denial does not involve a "dissociation" of belief in the underlying subject matter. If one has published a defamatory statement, he can and should be liable for civil damages in a common law libel action. If he had nothing to do with the defamatory publication, he certainly knows it, and is in a position to deny promptly. In short, these petitioners could have done exactly what they did at the trial—deny publication in an answer to the letter charging it.

Moreover, petitioners' argument that the retraction statute imposes too great a financial burden upon them is equally frivolous. If these petitioners had wanted a forum as wide as that of the advertisement, they could have written, most inexpensively, a letter to the New York Times for publication and there explained their alleged innocence.

These petitioners in response to the demand for retraction were not called upon to restate their views of the subject matter if in fact they had not participated in the publication. All the demand required in order to avoid this well established rule of evidence was a denial of publication. This is the rule of liability about which petitioners here complain. It involves no federal question whatever. It is as plain and simple a question of a state rule of evidence as can be imagined.

16 See Perry v. Johnston, 59 Ala. 648, 651; Peck v. Ryan, 110 Ala. 336, 17 So. 733; Craft v. Koonce, 237 Ala. 552, 187 So. 730; Sloss-Sheffield Co. v. Sharp, 156 Ala. 284, 47 So. 279; Annotation 70 A. L. R. 2d 1099; Wigmore on Evidence, § 1071; Morgan on Admissions, included in Selected Writings on Evidence, p. 829.

17 See annotations in 8 A. L. R. 1163; 34 A. L. R. 560; 55 A. L. R. 460. Alabama, too, recognizes this exception to the letter rule. See Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 479–480, 144 So. 86, and Fidelity & Casualty Co. v. Beeland Co., 242 Ala. 591, 7 So. 2d 265. Among the cases cited for this exception to the letter rule in Beeland are Leach & Co. v. Pierson, 275 U.S. 120, which recognizes an exception to the unanswered letter rule where the letter contains a demand.

B. Petitioners ratified and acquiesced in the use of their names on the advertisement

Closely allied to the doctrine of silence as an admission is the equally well established principle that one may ratify by silence and acquiescence the act of another even though the persons involved are strangers. Alabama authorities and those elsewhere are thoroughly explored in Parks v. New York Times Company, 308 F. 2d 474, 480 (5th Cir. 1962).18

This Alabama rule applies whether or not there is a pre-existing agency relationship, and thereby accords with the law set out in Professor Warren A. Seavey's notes to Restatement of Agency 2d, cited in footnote eighteen.

Obviously, the foregoing matters involve plain questions of state law, and present no occasion for the exercise of certiorari jurisdiction. If there was any evidence against petitioners, there is no federal question. Two Alabama Courts and one Federal Court of Appeals have held there was.19 Apposite is this Court's observation in Stein v. New York, 346 U.S. 156, 181:

"Of course, this Court cannot allow itself to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding. But that does not mean that we give no weight to the decision below, or approach the record de novo or with the latitude of choice open to some state appellate courts, such as the New York Court of Appeals."

This case does not entitle petitioners to ask this Court to sit as a jury and substitute its collective judgment for that of the jury which tried this case.

III.

Respondent is reluctant to dignify by comment the statements in petitioners' brief which vilify respondent and his attorneys for bringing this libel suit. Surely, this Court will note the striking fact that nowhere in this lengthy and vituperative document is there the slightest suggestion that these petitioners, or indeed The New York Times, even attempted to introduce any testimony to substantiate the truth of the matters contained in the paid advertisement.

Respondent cares deeply about freedom of press and speech. And he is also concerned that these basic freedoms do not degenerate into a license to lie. As a commentator cited by petitioners has observed: "In the rise of the Nazis to power in Germany, defamation was a major weapon." Riesman, Democracy and Defamation, 42 Columbia L. Rev. 727, 728.

As venerable as John Peter Zenger is the imbedded constitutional principle that libelous utterances are not within the area of constitutionally protected speech and press.20

CONCLUSION

For the foregoing reasons it is respectfully submitted that the writ of certiorari should be dismissed as improvidently granted; in the alternative, respondent respectfully submits that this case should be affirmed.

Respectfully submitted,
Robert E. Steiner III,
Sam Rice Baker,
M. Roland Nachman Jr.,
Attorneys for Respondent.
Steiner, Crum & Baker,
Calvin Whitesell,
Of Counsel.

I, M. Roland Nachman, Jr., of Counsel for Respondent, and a member of the bar of this Court, hereby certify that I have mailed copies of the foregoing Brief and of Respondent's Brief in No. 39, The New York Times Company v. Sullivan, air mail, postage prepaid, to I. H. Wachtel, Esquire, Counsel for petitioners, at his office at 1100 17th Street N. W., Washington, D.C. I also certify that I have mailed a copy of the foregoing Brief, air mail, postage prepaid, to Edward S. Greenbaum, Esquire, 285 Madison Avenue, New York, New York, as attorney for American Civil Liberties Union and the New York Civil Liberties Union, as amici curiae.

18 These and others are: Birmingham News Co. v. Birmingham Printing Co., 209 Ala. 403, 407, 96 So. 336, 340–341; Goldfield v. Brewbaker Motors (Ala. App.), 36 Ala. App. 152, 54 So. 2d 797. cert. denied 256 Ala. 383, 54 So. 2d 800; Woodmen of the World Ins. Co. v. Bolin, 243 Ala. 426, 10 So. 2d 296; Belcher Lumber Co. v. York, 245 Ala. 286, 17 So. 2d 281; 1 Restatement of Agency 2d, Sec. 94, page 244, comments (a) and (b); 3 Restatement of Agency 2d (App. pages 168 and 174).

19 It is, of course, elemental that signers of an advertisement—or those who later ratified the use of their names—would be liable for its publication since every individual participant in the publication of a defamatory statement, except a disseminator, is held strictly liable. Peck v. Tribune Co., 214 U.S. 185; Developments in the Law—Defamation, 69 Harvard L. Rev. at 912.

20Roth v. United States, 354 U.S. 476, 483; Beauharnais v. Illinois, 343 U.S. 250, 256; Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572; Konigsberg v. State Bar of California, 366 U.S. 36, 49–50; Near v. Minnesota, 283 U.S. 697, 715.

This … day of October, 1963.

M. Roland Nachman Jr.,

Of Counsel for Respondent.

APPENDIX A

Title 7, Section 827 (1), of the Code of Alabama:

"BILLS OF EXCEPTION ABOLISHED IN CERTAIN COURTS; TRANSCRIPT OF EVIDENCE.—Bills of exception in the trial of cases at law in the circuit court and courts of like jurisdiction and all other courts of record having a full time court reporter and from which appeals lie directly to the court of appeals or the supreme court of Alabama, in the state of Alabama, are hereby abolished. If a party to a cause tried in such court desires to appeal from a judgment rendered, he shall, within five days after he perfects his appeal give notice to the court reporter, in writing, that he desires to appeal and request the evidence to be transcribed. The court reporter shall then promptly transcribe the evidence, including objections, oral motions, rulings of the court, and the oral charge of the court, certify the same and file it with the clerk within sixty days from the date on which the appeal was taken, or within sixty days from the date of the court's ruling on the motion for a new trial, whichever date is later. He shall also identify and copy all documents offered in evidence in the order in which offered. The evidence so transcribed and certified and filed shall be a part of the record, and assignments of error may be made as though the transcript constituted a bill of exceptions. If the reproduction of documents offered in evidence, such as maps or photographs, be difficult or impracticable, the court reporter shall so certify, and the clerk shall thereupon attach the original or a photostatic copy thereof to the transcript on appeal, and such original or photostatic copy thereof shall be a part of the transcript on appeal. If bulky or heavy objects be offered in evidence as exhibits which are not capable of being attached to the transcript, the court reporter shall certify that such exhibits are bulky or heavy objects which are not capable of being attached to the transcript; that he has identified them as part of the transcript on appeal. The court reporter shall include in his certificate a statement that he has notified both parties or their attorneys of record of the filing of the transcript of testimony. (1943, p. 423, § 1, effective Sept. 1, 1943; 1951, p. 1527, § 1, appvd. Sept. 12, 1951; 1956, 1st Ex. Sess., p. 43, § 1, appvd. Feb. 9, 1956.)"

Title 7, Section 827 (1a) of the Code of Alabama:

"EXTENSION OF TIME FOR FILING TRANSCRIPT; OBJECTIONS TO TRANSCRIPT; HEARING AND RULINGS THEREON.—The period of time within which the reporter must file the transcript may be extended by the trial court for cause. Within ten (10) days after the filing with the clerk of the certified transcript by the court reporter, either party may file with the clerk objections to the certified transcript, with his certificate that he has notified the opposing party, or attorney of record, that the same will be called to the attention of the trial court at a specified time and place. If no objections are filed within such ten (10) days the transcript shall be conclusively presumed to be correct. The hearing of objections and the ruling of the court thereon shall be concluded within a period of ninety (90) days from the date of the taking of the appeal, provided that this period may be extended by the trial court for cause. The trial court shall endorse its ruling on the transcript, sign the same, all within said ninety (90) days period, except as hereinbefore provided. Any ruling of the trial court upon such requested hearing, as well as any ruling on objections to a succinct statement, provided for in section 827 (c) of this title, shall be reviewable, with error duly assigned by the dissatisfied party upon the appeal of the cause, and the evidence upon such hearing shall be duly certified by the court reporter. (1951, p. 1528, § 2, appvd. Sept. 12, 1951.)"

Title 13, Section 119 of the Code of Alabama:

"EXECUTION ON JUDGMENT; NEW TRIAL MUST BE ASKED IN THIRTY DAYS.—After the lapse of ten days from the rendition of a judgment or decree, the plaintiff may have execution issued thereon, and after the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day; provided that in any county in which the trial judge did not reside on the date of the trial such motion may be filed in the office of the clerk, or register, of the court of the county having jurisdiction of said cause, within thirty days from the date of the rendition of the judgment or decree, and the court shall lose all power over it sixty days after the date of the rendition of such judgment or decree as completely as if the end of the term had been on that day unless such motion is called to the attention of the court and an order entered continuing it for hearing to a future date. (1915, p. 707; 1939, p. 167.)"

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Brief for Respondent

Brief for Respondent

In the Supreme Court of the United States
October Term, 1965
No. 759

ERNESTO A. MIRANDA, PETITIONER,
V.
THE STATE OF ARIZONA, RESPONDENT

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF ARIZONA
BRIEF FOR RESPONDENT

Darrell F. Smith,
The Attorney General of Arizona

Gary K. Nelson,
Assistant Attorney General Rm. 159, State Capitol Bldg., Phoenix, Arizona 85007
Attorneys for Respondent

Gary K. Nelson,
Assistant Attorney General, Of Counsel

Index

Opinion Below, Jurisdiction, Constitutional Provisions Involved
Question Presented
Statement of the Case
Summary of Argument
Argument

  1. Introduction
  2. There are no inherent defects either in this defendant, the operation of law enforcement agencies, or in our system of criminal justice, which require a rule of the constitutional impact and proportions here sought by petitioner
    1. The defendant
    2. The police
    3. The nature of the contest
  3. Miranda was not denied his right to counsel as guaranteed to him by the Sixth and Fourteenth Amendments to the Constitution of the United States
    1. The Arizona court's decision
    2. Escobedo v. Miranda

Conclusion
Appendix A
Appendix B

OPINION BELOW, JURISDICTION, CONSTITUTIONAL PROVISIONS INVOLVED

Pursuant to Rule 40, Subd. 3, Rules of the Supreme Court, 28 U.S.C. Rules, as amended, the respondent accepts petitioner's presentation of the above referenced portions of the brief.

QUESTION PRESENTED

While your respondent accepts the legal substance of the Question Presented as posed by the petitioner, serious issue is taken with the descriptive phrases, "poorly educated, mentally abnormal".1 The propriety of this description of the petitioner, insofar as it may enhance the question presented for review, is no doubt one of the key issues to be decided by the Court and respondent reserves the right to present argument, infra, concerning the description's accuracy and impact.

STATEMENT OF THE CASE

Pursuant to Rule 40 of this Court, supra, respondent deems it necessary to set forth additional facts from the record of this case which are considered essential to the complete resolution of the issues presented for review.

A psychiatric report is part of the record (R.6) and has been referred to by petitioner in his Statement of the Case.2 The totality of this report is essential for an adequate determination of critical factual and background matters, and the report is therefore fully incorporated by reference into this Statement of the Case and reprinted verbatim in Appendix A, infra.

The psychiatrist quoted the petitioner as making the following statements:3

1 Brief of Petitioner, at 2.

2Id. at 3.

3 These are in addition to those quoted responses to proverbs cited in petitioner's brief, Id. n. 1.

"Don't worry. If I had wanted to rape you, I would have done it before. [R. 7]

"You don't have to scream. I am not going to hurt you. [R. 7]

"I didn't know how to ask her for forgiveness.[R. 7]

"I never could get adjusted to her. [R. 8]"

The psychiatrist sets forth in detail Miranda's experience with law enforcement agencies.4(R. 8)

Petitioner made a written statement concerning the events in question (State's Exhibit 1;R. 41, 69). Petitioner makes selected references to the statement.5 Respondent incorporates the whole of this written instrument into this brief; it is reprinted herein as Appendix B, infra.

A portion of the statement was typewritten and part of it was written in long-hand by the petitioner himself (R. 40, 41). The following portion of the statement was actually written by the petitioner in his own hand:

"E.A.M. Seen a girl walking up street stopped a little ahead of her got out of car walked towards her grabbed her by the arm and asked to get in the car. Got in car without force tied hands & ankles. Drove away for a few miles. Stopped asked to take clothes off. Did not, asked me to take her back home. I started to take clothes off her without any force and with cooperation. Asked her to lay down and she did could not get penis into vagina got about1/2(half) inch in. Told her to get clothes back on. Drove her home. I couldn't say I was sorry for what I had done. But asked her to say a prayer for me. E.A.M." (R. 69)

Finally, petitioner cites the Court to the opinion of the Arizona Supreme Court (R. 72-93), but once again is selective in the portions set forth in the Statement of the Case.6 Acting on the assumption that petitioner considered the selected portions of the opinion "all that is material to the consideration of the Questions Presented,"7 the respondent must expand this Statement of the Case to include the whole of the opinion below of the Arizona Supreme Court (98 Ariz. 18, 401 P. 2d 721) and hereby incorporates the whole of the opinion herein by reference.

The following specific excerpts, at a minimum, are vital for a determination of the factual and legal predicate of the Arizona Court in its resolution of the Federal Constitutional Question:

4 1) Aged 14, Stolen Car, Probation.

2) Three weeks later, Fort Grant (Arizona Industrial School for Boys), 6 months.

3) Assault and Attempted Rape, 1 year sentence.

4) Aged 17, Peeping Tom charge, Los Angeles, Probation.

5) Arrested twice, Los Angeles, Suspicion of Armed Robbery.

6) Military service, Peeping Tom charge, confinement and Undesirable Discharge.

7) December 1959, Dwyer Act Violation, Federal Penitentiary.

5 Brief of Petitioner, n. 3.

6Id. at 5-6.

7 Rule 40, Subd. 1 (e), Supreme Court Rules, 28 U.S.C., Rules, as amended.

"The question of whether the investigation had focused on the accused at the time of the making of the statement and thereby shifted 'from investigatory to accusatory' is not the deciding factor in regard to the admissibility of the confession in the instant case. There are other factors under the ruling of the Escobedo case. Defendant in the instant case was advised of his rights. He had not requested counsel, and had not been denied assistance of counsel. We further call attention to the fact that, as pointed out in the companion case here on appeal, State v. Miranda, No. 1397 [98 Ariz. 11, 401 P. 2d 716] defendant had a record which indicated he was not without courtroom experience. [Citation omitted] It included being arrested in California on suspicion of armed robbery, and a conviction and sentence in Tennessee on violations of the Dwyer [sic] Act. Under the circumstances he was certainly not unfamiliar with legal proceedings and his rights in court. The police testified they had informed defendant of his rights, and he stated in his written confession that he understood his rights (which would certainly include his right to counsel), and it is not for this court to dispute his statement that he did. His experience under previous cases would indicate that his statement that he understood his rights was true. (R. 88-89)

* * *

"What is the purpose of the right to counsel? What is the purpose of the Sixth and Fourteenth Amendments? Without question it is to protect individual rights which we cherish, but there must be a balance between the competing interests of society and the rights of the individual. Society has the right of protection against those who roam the streets for the purpose of violating the law, but that protection must not be at the expense of the rights of the individual guaranteed under the Sixth and Fourteenth Amendments to our Constitution. (R. 91-92)

* * *

"It will be noted in the discussion of these cases—particularly the Escobedo case—the ruling of the court is based upon the circumstances of the particular case. The court, in making its holding in the Escobedo case, stated 'under the circumstances here the accused must be permitted to consult with his lawyer.'"

"Most of the cases distinguished the Escobedo case on the grounds that the defendant requested and was denied the right to counsel during interrogation. The Escobedo case merely points out factors under which—if all exist—it would not be admissible. We hold that a confession may be admissible when made without an attorney if it is voluntary and does not violate the constitutional rights of the defendant."

"Each case must largely turn upon its own facts, and the court must examine all the circumstances surrounding the taking of the statement in determining whether it is voluntary and whether defendant's constitutional rights have been violated."

"The facts and circumstances in the instant case show that the statement was voluntary, made by defendant of his own free will, that no threats or use of force or coercion or promise of immunity were made; and that he understood his legal rights and the statement might be used against him. Under such facts and circumstances we hold that, notwithstanding the fact that he did not have an attorney at the time he made the statement, and the investigation was beginning to focus upon him, defendant's constitutional rights were not violated, and it was proper to admit the statement in evidence." (R. 92-93)

SUMMARY OF ARGUMENT

Petitioner was in no way denied his constitutional right to counsel in this case. He neither merits, nor is he reason for, the pronouncement of the broad constitutional principle which is sought.

Petitioner received a full elementary education and, although he had an emotional illness, he had sufficient mentality and emotional stability to understand what he was doing when he was doing it, and to fully appreciate all the potential consequences of his act.

Clearly there was no police brutality or any possible official overreaching in the acquisition of the statements here in question. Yet petitioner, nonetheless, portrays the police generally in the worst possible light, in attempting to justify the need for the rule he seeks. The examples of bad police activity represent the exceptions to the general rule as regards police conduct and attitude, and do not merit or require an overly broad constitutional rule which would strike down the good with the bad.

Petitioner infers that since he stood no chance of victory in the trial of the case after the statements were given, he was therefore deprived of some right. Nothing could be further from the truth. He has no such right to "win." The Constitution insures that he must not be convicted as a result of any violations of those rights which we all cherish; it doesn't insure that he won't be convicted.

The decision of the Arizona Supreme Court below rested on many factors, of which the lack of a request for counsel was but one. It determined that the totality of these factors did not result in affirmative conduct which denied petitioner his right to counsel. There was no element of waiver involved in the Arizona Court's decision.

The decision of this Court in Escobedo v. Illinois, 378 U.S. 478 (1964) does not require the reversal of this case. The facts are significantly different. The legal principles therein announced, considered within the context of that decision as it discusses not only the particular facts of the case but also the significance of the prior decisions of this Court on the same subject matter, implement an exclusionary rule directed to deter the police from affirmative conduct calculated, under the facts of any given case, to deny an accused from consulting with counsel. Such a rule, in proper perspective and balance, will protect the accused from any infringement of his right to counsel, while not unduly or unnecessarily curtailing the oft times essential investigative questioning of a suspect.

8 Brief of Petitioner, at 10.

9Ibid.

ARGUMENT

I. Introduction

Petitioner states that his life for all practical purposes was over when he walked out of Interrogation Room #2 on March 13, 1963.8 The real fact is that Miranda's life was unalterably destined ten days earlier during the late evening hours of March 2 and the early morning hours of March 3, when he kidnapped and raped his victim, Patricia Weir. What followed must not be described in cynical terms as "the ceremonies of the law";9 they were, and are, the carefully ordained processes of our judicial system, designed, at the optimum, to discover the truth, mete out justice to all, insure the guilty their just and proper recompense and vindicate the innocent. To be sure, thoroughly interwoven into these processes at all stages and levels is the implementation and zealous protection of those cherished rights and privileges guaranteed to all by the Constitutions of the United States and the several states; no police officer, prosecutor or judge dedicated to the basic precepts of our system of government advocates that it should be any different.

Unfortunately, or perhaps fortunately, so long as human beings rather than computers administer the processes of justice, mistakes and error will occur and injustices will be done. The courts of our land, including this Court with its highest and most final jurisdiction, are daily exposing and correcting these mistakes to the best of their ability. The question here before the Court is whether there was such a mistake or error in this case of a dimension to result in the denial of petitioner's right to counsel as set down in the Constitution of the United States, and as proclaimed by this Court in its decisions thereunder.

II. There are no inherent defects either in this defendant, the operation of law enforcement agencies, or in our system of criminal justice, which require a rule of the constitutional impact and proportions here sought by petitioner

A. The defendant The very description of the petitioner in his Question Presented10 subtly introduces a factual issue into this case which is of the gravest importance in resolving the ultimate legal question.

The words so carefully used were "poorly educated, mentally abnormal." No doubt other descriptive words and phrases could have been added—poor, motherless, unloved, downtrodden, culturally deprived, misguided, unguided, harassed, ad infinitum.

It is practically impossible to pick up a national magazine, professional journal, or listen to an address without some dramatic usage of these descriptive adjectives to characterize some greater or lesser portion of the American population.11 And in the proper perspective, such attention, whether it be by this Court,12 the Congress,13 the executive,14 or state and local governments,15 is long overdue and, hopefully, will do something about the root-source of our most perplexing problems—not the least of which is the rising crime rate.16

However, to use these heart-rending descriptions in an attempt to justify or excuse the knowing and deliberate violation of our criminal statutes and the imposition of violence and suffering and depravation upon some individuals of our society by others, is misleading to say the least. Of this ilk, Miranda is a clear example.

Perhaps an eighth grade education, under a literal definition of the term and in the context of our affluent society, is a "poor education." Under no stretch of the imagination, however, can Miranda be deemed to be uneducated or illiterate. In addition to his formal schooling, petitioner had considerable and varied experiences which broadened his knowledge, particularly in the area which is of primary importance to us now.17

10Id. at 2.

11 E.g. Nine "Unadoptable" Children Joined by Love, Look Magazine, Oct. 19, 1965, at 54; Winters, Counsel for the Indigent Accused in Wisconsin, 49 Marq. L. J. 1 (1965); Inaugural Address of President John F. Kennedy, January 20, 1961, 107 Congressional Record, 1013.

12 E.g. Brown v. Board of Education, 347 U.S. 483 (1954).

13 E.g. Public Works and Economic Development Act of 1965, 42 U.S.C. §§ 3121-3226.

14 E.g. State of the Union Address, President Lyndon B. Johnson, January 12, 1966, 112 Congressional Record 129.

15 E.g. Operation LEAP (Leadership and Education for the Advancement of Phoenix), Ordinance No. S-3205, Dec. 15, 1964, City Council of Phoenix, Arizona, Implementing Resolution No. 11887, November 4, 1964.

16 E.g. Hoover, Annual Report of the Federal Bureau of Investigation, Fiscal Year 1965, U.S. Department of Justice.

17 See n. 4, supra.

18 Brief of Petitioner, n. 3.

Counsel would have us believe that petitioner was incapable of producing the statement which was admitted against him (Appendix B. infra).18 A simple reading and viewing of the statement refutes such a contention. The portion of the statement describing the actual events of the incident is in petitioner's hand and was written by him. Certainly the officers, if they were interested in putting words into Miranda's mouth, could have typed in these words also, in a favorable context, and simply obtained Miranda's signature to the whole. And although petitioner's grammar, sentence structure and punctuation leave much to be desired, the conclusion is inescapable that his knowledge and understanding of the difference between simple promiscuity and the crime of rape is more highly sophisticated than most of the Ph.Ds in our country.19

Miranda is also labeled as "mentally abnormal." The basis for this is the psychiatric report (Appendix A, infra). While Miranda had an "emotional illness," it is questionable that this even made him "abnormal."20 Clearly the diagnosis of the psychiatrist was to the effect that the illness was not disabling and that Miranda was able to understand the predicament he was in and knew the conduct society demanded of him at the time he chose to ignore those demands.21

B. The police Admittedly there is no possible element of police brutality or coercion in this case, whether direct or subtle.22 Yet petitioner, nevertheless, paints a picture of police disregard for rights guaranteed by our Constitution. The picture is inaccurate—but proving it so is almost a practical impossibility.

The articles, the studies, and the cases,23 dealing, as they almost unanimously do, with the negative aspect of the problem, make it difficult to see the rule because of the emphasis on the exception. It is true that all police officers are not interested in protecting the rights of the accused; it is true that there are convictions obtained by use of trumped-up evidence and wrongfully elicited incriminating statements and confessions; but these are the very few exceptions to the general rule. For every case of police insensitivity to individual rights, there are literally thousands of unreported incidents of the unstinting efforts of police and prosecutors which result in the extrication of an otherwise helpless and innocent victim, hopelessly intertwined in a web of circumstantial evidence of guilt.24 The prime reason the vast majority of such instances go unreported and unstatisticized, is that the police and the prosecutor alike consider this just another important, but routine part of their work, which they do with the same dedication as they do the more spectacular phases.25

19 Note petitioner's careful use of the words "without force," "without force and with cooperation," "asked her to lay down, and she did." Appendix B, infra. See also petitioner's quoted sentence responses, statement of the case, supra, at 2.

20 It has been estimated that at least 10% of our entire population have emotional illnesses of one type or another which should be treated professionally. Milt, How to Deal With Mental Problems, (National Association for Mental Health, Booklet, 1962).

21 "It is my opinion that Mr. Mirande [sic] is aware of the charges that have been brought against him and is able to cooperate with his attorney in his own defense. Although Mr. Mirande [sic] has an emotional illness, I feel that at the time the acts were committed that he was aware of the nature and quality of the acts and that he was further aware that what he did was wrong." Appendix A, infra.

22 Brief of Petitioner, at 10.

23 E.g. LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash. U.L.Q. 331; Smith, Police Systems in the United States, (2d rev. ed. 1960); Ashcraft v. Tennessee, 322 U.S. 143 (1944).

24 A person cannot talk to a police officer or prosecutor of many years tenure without hearing of numerous such incidents, many made possible by not only investigating extrinsic physical facts, but also by investigative questioning.

25 The Law Enforcement Code of Ethics, as set forth in The Detroit Police Manual, and cited in Norris, Constitutional Law Enforcement is effective Law Enforcement: [Etc.], 43 U. Det. L. J. 203 (1965), n. 30, clearly reflects the importance of this particular responsibility, and represents the rule and not the exception:

"Law Enforcement Code of Ethics"

As a Law Enforcement Officer, my fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence or disorder; and to respect the Constitutional rights of all men to liberty, equality and justice.

I will keep my private life unsullied as an example to all, maintain courageous calm in the face of danger, scorn or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in thought and deed in both my personal and official life, I will be exemplary in obeying the laws of the land and the regulations of my department. Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary in the performance of my duty.

I will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence and never accepting gratuities.

I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to hold so long as I am true to the ethics of police service. I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession—Law Enforcement."

This Court, together with all the courts of our land, should and will continue to firmly and courageously deal with the exceptions to this rule. We must be careful, however, not to foreclose, limit or unduly hamper investigative techniques which, in their legitimate use, are not barred by any Constitutional mandate, solely because a few use the techniques to effect an unconstitutional result. The promulgation of such a rule of constitutional dimension in any given case would be as necessary as "Dr." Jerry Colona's recently suggested solution to Bob Hope's medical problem of a sore and infected big toe—to cut off Hope's head to relieve the excess weight on the toe.26 While it goes without saying that the problem of the big toe would most certainly be forever solved, it is questionable whether the patient would be at all happy with the ancillary side effects of the treatment. As to whether a similarly undesirable side effect would be forthcoming from an unnecessarily broad constitutional rule in this case, we must look ahead.

C. The nature of the contest Petitioner, it seems, would have us interpret our adversary system of criminal justice as giving the accused a right to "win" the contest.27 While it may be inherent in the very nature of our system, with its vital and essential safeguards to individual freedom, that a person who actually commits a criminal act may have extra opportunities to escape punishment for his crime, it must be clear without comment or citation that the intent of the Constitutional safeguards were to insure, as much as humanly possible, that the innocent and unpopular would not be wrongfully harassed, intimidated or convicted—not that the guilty should have any special chances for acquittal or other favorable result.

If the prosecuting authorities have gained an overwhelming advantage over a particular defendant, assuming they have done so by proper methods, and not by violating any of his constitutional rights, this is to be highly commended, not condemned. It is a vital attribute of our society that the law enforcement machinery apprehend, convict and punish and/or rehabilitate those who would break the laws and endanger, if not destroy, our domestic tranquility. Law enforcement is not a game of chance, Massiah v. United States, 377 U.S. 201, 213 (1964) (Dissenting Opinion); McGuire v. United States, 273 U.S. 95 (1927). There is no "gamesmanship" or "sportsmanship" involved here, at least insofar as the criminal is concerned. He follows no code of conduct or canons of ethics. The death, suffering, and depravation caused by crime is as real to those who are touched by its sting as is that of any war ever fought. Certainly the criminal gives no quarter; and none should be given in return except as is required to insure the integrity and continuation of the system which we all cherish.

Criminals, like the rest of us, are inherently unequal. Some are skilled, some not; some intelligent, some not; some trained, some not; some blabbermouths, some not; some strong, some not; some cruel, some not, etc. It certainly would not be urged that if a criminal is foolish enough to leave physical clues, the police should not be allowed to use them because X, who committed the same crime, was more careful. Or if Y was callous enough, or "intelligent" enough, to kill his rape victim to prevent identification, certainly Z, who also raped, should not be given the same opportunity to kill so as to have an equal chance at the trial to "win." So, too, are there differences between what happened to Ernesto A. Miranda as contrasted with what happened to Danny Escobedo28 which militate in favor of a different resolution of their problem by this Court.

26 Bob Hope Christmas Special, N.B.C. Television Network, January 26, 1966, 8:30 P.M., M.S.T.

27 Brief of Petitioner, at 9.

28Escobedo v. Illinois, 378 U.S. 478 (1964).

29 Brief of Petitioner, at 28.

30 For an exhaustive citation of the cases construing Escobedo, both on a State and Federal level, see: Sokol, Brief of Amicus Curiae in The Escobedo Cases (The Michie Company, 1966).

III. Miranda was not denied his right to counsel as guaranteed to him by the Sixth and Fourteenth Amendments to the Constitution of the United States

The decision in this case must rest upon the scope and effect to be attributed to this Court's decision concerning right to counsel at the interrogation stage, in Escobedo v. Illinois, 378 U.S. 478 (1964). While petitioner's historical analysis is to be highly commended for the care and effort which it reflects, his almost cursory treatment of Escobedo, coupled as it is with an inaccurate treatment of the Arizona Court's decision in the instant case, belies some doubt as to the absolute accuracy of the conclusion forecast as unassailable. Rather than obscuring the "simple lines of the situation,"29 the welter of the cases, the majority of which disagree with petitioner's conclusion,30 coupled with the rather sharp divergence of opinion on this Court, not only in the recent decisions on this point, e.g., Massiah v. United States, 377 U.S. 201 (1964) and Escobedo v. Illinois, supra, but in the earlier decisions as well, e.g., Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. LaGay, 357 U.S. 504 (1958), indicate the problem posed here to be anything but simple.

A. The Arizona court's decision Petitioner, at least twice,31 states that the Arizona Supreme Court rested its opinion on petitioner's refusal to request counsel. A reading of the opinion clearly reveals that this was only one factor in many which resulted in a determination that Miranda was not denied his right to counsel (Statement of the Case, supra, at 4). The nature and length of the questioning, the warning advice given, and the background of the petitioner were equally important factors. Petitioner is correct in stating that the Arizona Court's decision did not in any way purport to rest on a waiver doctrine.32 This is made amply clear in the Arizona Supreme Court's decision in State v. Goff, ___Ariz. ___, 407 P. 2d 55 (1965), where the court referred to this aspect of its decision in Miranda:

"We did not conclude from Escobedo that the Supreme Court of the United States held that arbitrarily and in every instance admissions made to police officers after an investigation has become accusatory are inadmissible in evidence unless a suspect has knowingly waived his right to counsel." Id, 407 P. 2d at 57.

The Supreme Court of California, in People v. Dorado, 42 Cal. Rptr. 169, 398 P. 2d 361 (1965), and indeed the dissenting Justices of this Court in Escobedo v. Illinois, supra, 378 U.S. at 495, have forecast, as a minimum, a contrary conclusion. If this latter view is proved to be correct, that is the end of this case, and untold thousands like it throughout the length and breadth of this land. We choose, however, in turning our attention to Escobedo, to approach the import of that decision with the "hope" expressed by Justice Stewart in concluding his separate dissenting opinion in Escobedo v. Illinois, Ibid.

B. Escobedo v. Miranda Petitioner prefers to dwell on the implicit in Escobedo.33 The explicit facts of the case are considered by respondent to be highly relevant and very crucial to the indicated result in Miranda.

Danny Escobedo had retained counsel and repeatedly requested to consult with him. The requests were all denied. Escobedo was even told at one time that his lawyer didn't want to see him. On the contrary, Escobedo's lawyer was trying desperately to see his client, and was thwarted at every turn by the police, in spite of a specific Illinois statute requiring the police to admit the lawyer. Escobedo v. Illinois, supra, 378 U.S. at 480. Escobedo had no record of previous experience with the police. He was interrogated not only by police officers, but by a skilled and experienced lawyer. Escobedo was told that another suspect had pointed the finger at him as the guilty one. At no time was he ever advised of his constitutional rights by either the police or the prosecutor.

Ernesto A. Miranda was not represented by counsel at the time of the questioning here involved. He had not requested that counsel be provided, or that he be given an opportunity to consult with counsel prior to talking to the police. The officers did not deny him an opportunity to consult with counsel, nor did they in any way use chicanery in their questioning of Miranda. Petitioner had had considerable and varied experience with the police on previous occasions. Petitioner was advised of his constitutional rights, specifically including his right to remain silent, the fact that his statement had to be voluntary, and that anything he did say could be used against him.34

In setting forth the holding of the case, this Court very carefully enumerated the factors which resulted in the denial of counsel to Escobedo:

31 Brief of Petitioner, at 6, 30.

32Id, nn. 7 and 15.

33Id, at 30—in fact, it would appear, on the following page of his brief, that he relies perhaps more upon the guiding light of the California Supreme Court than the pronouncements of this Court.

34 It is not here disputed that petitioner was not specifically advised of his right to counsel.

"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied counsel, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the assistance of counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the states by the Fourteenth Amendment,' Gideon v. Wainright, 372 U.S. at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." Escobedo v. Illinois, supra, 378 U.S. at 490 and 491.

Of the five specific elements, which might be set forth as: (1) Accusatory Stage; (2) Police Custody; (3) Interrogation to elicit incriminating statements; (4) Request and Denial of an opportunity to consult counsel; and (5) Effective Warning of his absolute right to remain silent, petitioner contends that only (4) is absent here and that its absence is not crucial. Both premises are incorrect.

The Arizona Court clearly considered that Miranda had been warned of his absolute right to remain silent. The facts cited in that opinion, together with the Appendix to Petitioner's Brief, provided an ample basis for such a conclusion. And to discount item (4) concerning the request, is to completely ignore not only the plain wording of the opinion in Escobedo, but to completely disregard the factual and legal bases for the opinions cited in petitioner's historical analysis as demanding the ultimate ruling sought herein. E.g., Crooker v. California, supra, (Douglas, J., dissenting):35Spano v. New York, 360 U.S. 315, 325 (1959), (Douglas, J., concurring).36 The court lays a great stress on this factor, together with the failure of the police to warn the accused of his absolute right to remain silent. Escobedo v. Illinois, supra, 378 U.S. at 479, 480, 481, 482, 485, 486, 491, 492.

There are two other matters in the opinion itself which militate against petitioner's sought-for rule being all but announced. They are: (1) The treatment accorded the prior decisions of this Court in Crooker v. California, supra, 357 U.S. 433 and Cicenia v. LaGay, supra 357 U.S. 504, and (2) The Court's special and clear emphasis of the request for and denial of counsel in spite of its recent restatement that the right to counsel did not depend upon a formal request, Carnley v. Cochran, 369 U.S. 506 (1962).

Instead of completely overruling Crooker and Cicenia, the Court noted that the holding itself in Crooker, on the distinguishable facts in that case, which were set forth in some detail (Escobedo v. Illinois, supra, 378 U.S. at 491, 492), would possibly have been the same under the principles announced in Escobedo. In implicitly accepting the result in Crooker, while discarding the language inconsistent with the principles of Escobedo, the Court specifically approves the rejection of the absolute rule sought by Crooker:

"That 'every state denial of a request to contact counsel [is] an infringement of the constitutional right without regard to the circumstances of the case." Id, at 491. (Emphasis in Crooker.)

The continued rejection of the absolute rule sought by Crooker, implying as it does that in some cases a state could even deny a request without denying an accused his constitutional right to counsel, clearly rejects, a fortiori, the absolute rule sought by petitioner.

This result is also pointed to by the inclusion and emphasis of the request for counsel as a vital factor in Escobedo while not even including a reference to this Court's recent reemphasis of the unimportance of a request for counsel in the implementation of the absolute right to be provided counsel in Carnley v. Cochran, supra, 369 U.S. 506. The omission of reference to Carnley must be considered to have been by design and not accident. Thus the scope of the rule, and the force of its emphasis, must be and is different.

35 "This demand for an attorney was made over and again prior to the time a confession was extracted from the accused. Its denial was in my view a denial of that due process of law guaranteed the citizen by the Fourteenth Amendment." 357 U.S. at 442.

36 "The question is whether after the indictment and before the trial the Government can interrogate the accused in secret when he asked for his lawyer and when his request was denied." 360 U.S. at 325. (Emphasis in original.)

37 "The Solicitor General, in his brief and oral argument, has strenuously contended that the federal law enforcement agents had the right, if not indeed the duty, to continue their investigation of the petitioner and his alleged criminal associates even though the petitioner had been indicted. He points out that the Government was continuing its investigation in order to uncover not only the source of narcotics found on the S.S. Santa Maria, but also their intended buyer. He says that the quantity of narcotics involved was such as to suggest that the petitioner was part of a large and well-organized ring, and indeed that the continuing investigation confirmed this suspicion, since it resulted in criminal charges against many defendants. Under these circumstances the Solicitor General concludes that the government agents were completely 'justified in making use of Colson's cooperation by having Colson continue his normal associations and by surveilling them.'

"We may accept and, at least for present purposes, completely approve all that this argument implies, Fourth Amendment problems to one side. We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant's own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial." Massiah v. United States, 377 U.S. at pages 206 and 207. (Emphasis in original.)

The decision in Escobedo announces an exclusionary rule directed against the affirmative conduct of police and prosecutors calculated to deny to an accused his right to counsel. Any incriminating statements received thereafter, regardless of the fact that they are clearly the product of the free and uncoerced will of the accused, are inadmissible, Escobedo v. Illinois, supra, 378 U.S. at 491. The decision in Massiah v. United States, supra, 377 U.S. 201, although involving a federal prosecution, certainly reinforces this view of the Escobedo doctrine, particularly the last two paragraphs thereof.37

The rule announced is a parallel to that announced in Mapp v. Ohio, 367 U.S. 643 (1961), designed as a specific deterrent to police activity calculated to render meaningless the citizen's rights under the search and seizure provision of the Fourth Amendment to the Federal Constitution. It must also be applied with the same practical, non-technical, common sense approach as is the Mapp exclusionary rule. United States v. Ventresca, 380 U.S. 102 (1965).

A contrary application would result in attempting to make police officers part-time defense counsel and part-time magistrates, or deprive them completely of an investigative technique which, in its proper use and application, is as invaluable as any modern, scientific tool for the detection and prevention of crime.

The legal scholars and commentators have produced volumes of material on Escobedo.38 It ranges the complete spectrum, from law professors and lawyers39 to second and third year law students.40 Both poles of the controversy are forcefully presented, including extensive citations to both primary and secondary authority, in the very recent publication of the University Press of Virginia: Kamisar, Inbau, and Arnold, Criminal Justice in Our Time, (Magna Carta Essays, Howard ed. 1965).

Ultimately, however, neither the overwhelming weight of the writings of the commentators, nor the weight of the decisions of the Judges and Justices of the other appellate tribunals of our land, whether state or federal, can dictate or necessarily foreshadow this Court's determination of the scope and effect of the principles announced in Escobedo.

If the rule sought by petitioner is forthcoming, we can only re-echo the ominous warnings and misgivings of the dissenters in Massiah and Escobedo, supra. Miranda and Escobedo are not equal and there is no Constitutional reason for this Court to equate them in the manner sought by petitioner, any more than there would be for this Court to balance their skill in committing and concealing their crime. No amount of scientific advancements in crime detection will produce evidence which a clever criminal has not been foolish enough to provide for discovery. If a criminal has been clever in the commission of his crime, but is foolish or careless in his handling of the police interrogation of him concerning that crime, the evidence obtained as a result of the only honest investigative avenue left open to the law enforcement agency, should not be suppressed unless that evidence is determined not to be the product of the free and uncoerced will of the accused, or if it is obtained after the police have undertaken a course of conduct calculated to deny the accused his right to counsel. Certainly nothing less will be tolerated, but the United States Constitution requires no more.

CONCLUSION

Quite appropriately, Justice Goldberg, who authored Escobedo v. Illinois, supra, provides the words most appropriate to conclude this brief. Speaking for the Court in United States v. Ventresca, supra, 380 U.S. 102, he said:

38 For an exhaustive collection of citations see: Sokol, Brief of Amicus Curiae in the Escobedo Cases, supra, n. 29.

39 E.g. Sutherland, Crime and Confession, 79 Harv. L. Rev. 21 (1965); Dowling, Escobedo and Beyond, 56 J. Crim. L., C.&P.S., 143 (1965); Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L.J. 449 (1964).

40 E.g. Comment, Escobedo v. Illinois, 25 Md. L. Rev. 165 (1965); Comment, Right to Counsel During Police Interrogation, The Aftermath of Escobedo, 53 Calif. L. Rev. 337 (1965); Note, Escobedo in the courts, May Anything You Say Be Held Against You, 19 Rutgers L. Rev. 111 (1964).

"This court is alert to invalidate unconstitutional searches and seizures whether with or without a warrant. [Presumably, for purposes of this case, confessions and admissions may be substituted for the final phrase concerning searches and seizures.] [Citations omitted.] By doing so, it vindicates individual liberties and strengthens the administration of justice by promoting respect for law and order. This court is equally concerned to uphold the actions of law enforcement officers consistently following the proper constitutional course. This is no less important to the administration of justice than the invalidation of convictions because of disregard of individual rights or official overreaching. In our view the officers in this case did what the Constitution requires.

* * *

"It is vital that having done so their actions should be sustained under a system of justice responsive both to the needs of individual liberty and to the rights of the community." Id, at 111 and 112. (Emphasis added).

The officers in this case also acted within the constitutional standards, and it is equally vital that their actions be sustained.

The judgment and decision of the Arizona Supreme Court in this case below should be affirmed.

Respectfully submitted,

Darrel F. Smith,
The Attorney General of Arizona.

Gary K. Nelson,
Assistant Attorney General, Rm. 159, State Capitol Bldg., Phoenix, Arizona 85007,
Attorneys for Respondent.

Gary K. Nelson,
Assistant Attorney General, of Counsel
February, 1966

APPENDIX A

JAMES M. KILGORE JR., M.D.
Suite 209
461 West Catalina Drive
Phoenix 13, Arizona
PSYCHIATRY
May 28, 1963

Honorable Warren L. McCarthy
Judge of the Superior Court
Maricopa County
Court House
Phoenix, Arizona
MIRANDA, Ernest Arthur Criminal Cause #41947, #41948

Ernest Arthur Miranda is a 23-year-old Mexican male who was examined by me in the County Jail on May 26, 1963.

Mr. Miranda is charged with the offense of robbery in relation to one Barbara Sue McDaniel on November 27, 1962. Mr. Miranda states that on that evening approximately 9:30 p.m. he saw a lady go to her car in the parking lot alone. He approached the car and got in the front seat. He stated at the time that he didn't know whether he would rob or rape the lady. She asked him if he didn't want to go to her apartment. Mr. Miranda stated that this frightened him in that she was so eager for sex and decided at that point to ask for money which she readily gave to him. He then said, "Don't worry. If I had wanted to rape you, I would have done it before."

The second offense for which Mr. Miranda is charged occurred on March 3, 1963, at which time he is supposed to have kidnapped and raped Patricia Ann Weir. Mr. Miranda stated that he knew Patricia Ann Weir, an 18-year-old single girl who worked in the theater. He had occasionally seen her there and on the evening of March 3 at approximately 11:00 p.m. he saw her walking toward the bus stop. He drove ahead of the bus and when she got off close to her home he was waiting for her. As she came close to the car he said to her, "You don't have to scream. I am not going to hurt you." He then told her to get into the car, which she did, and they drove out into the desert. He asked her to remove her clothing, which she did without resistance. He removed his clothes and performed the act of sexual intercourse. Miss Weir, according to the patient, did not resist, but during the process of sexual relations was tearful. Mr. Miranda was somewhat upset when he learned that the girl had not previously had sexual relations. He stated that if at any time the girl had refused or resisted, that he would not have proceeded. He then took her within a block or two of her house where he let her out. He asked if she would "tell on me." The girl did not respond. He stated "I didn't know how to ask her for forgiveness."

Mr. Miranda is age 23 and he has a common-law wife, age 30. They have been living together since August, 1961. His wife has two children by her first husband, a son, 11, and a daughter, 10. Mr. Miranda and his wife have a daughter, 91/2 months of age. He has worked as a truck driver and also as a worker in a warehouse. Mr. Miranda's father is age 55 and works as a painter in Mesa. He stated that he did not get along with his father during his adolescent years and was frequently beaten up by his father when he got into trouble. Mr. Miranda's mother died in 1946 at the age of 34 when Mr. Miranda was six years of age. He was reared by his stepmother, age unknown. He stated with reference to her, "I never could get adjusted to her." Mr. Miranda completed half of the ninth grade at the age of 15. Mr. Miranda was first placed on probation at the age of 14 after having stolen a car. Three months later he was sent to Fort Grant for a period of six months. Shortly after returning he was sentenced for a year on an attempted rape and assault charge. According to Mr. Miranda's description of this incident, he was walking by a home in which he saw a lady lying in bed with no clothes on. He went up to the front door and it was open; he entered the home and crawled in bed with the woman. Her husband returned home shortly and the police were called. In 1957 at the age of 17 Mr. Miranda was picked up in Los Angeles for being a peeping tom and charged with lack of supervision and was placed on probation. He was also arrested twice in L.A. on suspicion of armed robbery. He was in the Army from April, 1958, to July, 1959. He was placed in the brig for being a peeping tom and given an undesirable discharge. In December, 1959, he was sentenced to the Federal Penitentiary for transporting a stolen automobile across state lines.

Mr. Miranda is a 23-year-old Mexican man who is alert and oriented as to time, place, and person. His general knowledge and information is estimated to be within normal limits as is his intelligence. He is emotionally bland, showing little if any effect. He is shy, somewhat withdrawn. He tends to be somewhat hypoactive. The patient's responses to proverbs are autistic and somewhat bizarre; for example, to the proverb "a rolling stone gathers no moss," the patient interpreted this to mean "If you don't have sex with a woman, she can't get pregnant." To the proverb "a stitch in time saves nine," Mr. Miranda's response is "If you try to shut something in, you keep it from going out." To the proverb "people in glass houses shouldn't throw stones," Mr. Miranda states "A person with one woman shouldn't go to another women." Mr. Miranda states that he is not particularly concerned about himself at this point or the trouble that he is in except in that it might interfere with his looking after his wife and child.

It is my diagnostic impression that Mr. Miranda has an emotional illness. I would classify him as a schizophrenic reaction, chronic, undifferentiated type.

It is my opinion that Mr. Miranda is aware of the charges that have been brought against him and is able to cooperate with his attorney in his own defense. Although Mr. Miranda has an emotional illness, I feel that at the time the acts were committed that he was aware of the nature and quality of the acts and that he was further aware that what he did was wrong.

/s/ James M. Kilgore Jr.
JAMES M. KILGORE JR., M.D.
JMK/db

APPENDIX B

STATE'S EXHIBIT 1

CITY OF PHOENIX, ARIZONA

POLICE DEPARTMENT

Form 2000-66-D     Witness/Suspect

Rev. Nov. 59     Statement

SUBJECT: Rape D.R. 63-08380

STATEMENT OF: Ernest Arthur Miranda

TAKEN BY: C. Cooley #413—W. Young #182

DATE: 3-13-63     Time: 1.30 P.M.

PLACE TAKEN: Interr Rm #2

I, Ernest A. Miranda, do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me.

I, Ernest A. Miranda, am 23 years of age and have completed the 8th grade in school.

E.A.M. Seen a girl walking up street stopped a little ahead of her got out of car walked towards her grabbed her by the arm and asked to get in the car. Got in car without force tied hands & ankles. Drove away for a few miles. Stopped asked to take clothes off. Did not, asked me to take her back home. I started to take clothes off her without any force and with cooperation. Asked her to lay down and she did could not get penis into vagina got about ½ (half) inch in. Told her to get clothes back on. Drove her home. I couldn't say I was sorry for what I had done. But asked her to say a prayer for me. E.A.M.

I have read and understand the foregoing statement and hereby swear to its truthfulness.

/s/ Ernest A. Miranda
WITNESS /s/ Carroll Cooley
Wilfred M. Young #182

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