New York Times v. Sullivan

"In Advertiser Co. v. Jones, supra, this Court considered in a libel case the claim that the damages were excessive and stated: ‘While the damages are large in this case we cannot say they were excessive. There was evidence from which the jury might infer malice, and upon which they might award punitive damages. This being true, neither the law nor the evidence furnishes us any standard by which can ascertain certainly that they were excessive. The trial court heard all of this evidence, saw the witnesses, observed their expression and demeanor, and hence was in a better position to judge of the extent of punishment which the evidence warranted than we are, who must form our conclusions upon the mere narrative of the transcript. This court, in treating of excessive verdicts in cases in which punitive damages could be awarded. through Justice Haralson spoke and quoted as follows: "‘There is no legal measure of damages in cases of this character.’"

* * * * * *

"The Supreme Court of Missouri considered the question in Brown v. Publishers: George Knapp & Co., 213 Mo. 655, 112 S.W. 474, 485, and said: ‘The action for libel is one to recover damages for injury to man’s reputation and good name. It is not necessary, in order to recover general damages for words which are actionable per se, that the plaintiff should have suffered any actual or constructive pecuniary loss. In such action, the plaintiff is entitled to recover as general damages for the injury to his feelings which the libel of the defendant has caused and the mental anguish or suffering which he had endured as a consequence thereof. So many considerations enter into the awarding of damages by a jury in a libel case that the courts approach the question of the excessiveness of a verdict in such case with great reluctance. The question of damages for a tort especially in a case of libel or slander is peculiarly within the province of the jury, and unless the damages are so unconscionable as to impress the court with its injustice, and thereby to induce the court to believe the jury were actuated by prejudice, partiality, or corruption, it rarely interferes with the verdict.’". (Emphasis supplied.)

In the present case the evidence shows that the advertisement in question was first written by a professional organizer of drives, and rewritten, or "revved up" to make it more "appealing." The Times in its own files had articles already published which would have demonstrated the falsity of the allegations in the advertisement. Upon demand by the Governor of Alabama, The Times published a retraction of the advertisement insofar as the Governor of Alabama was concerned. Upon receipt of the letter from the plaintiff demanding a retraction of the allegations in the advertisement, The Times had investigations made by a staff corespondent, and by its "string" correspondent. Both made a report demonstrating the falsity of the allegations. Even in the face of these reports, The Times adamantly refused to right the wrong it knew it had done the plaintiff. In the trial below none of the defendants questioned the falsity of the allegations in the advertisement.

On the other hand, during his testimony it was the contention of the Secretary of The Times that the advertisement was "substantially correct." In the face of this cavalier ignoring of the falsity of the advertisement, the jury could not have but been impressed with the bad faith of The Times, and its maliciousness inferable therefrom.

While in the Johnson Publishing Co. case, supra, the damages were reduced by was of requiring a remittitur, such reduction was on the basis that there was some element of truth in part of the alleged libelous statement. No such reason to mitigate the damages is present in this case.

It is common knowledge that as of today the dollar is worth only 50 cents or less of its former value.

The Times retracted the advertisement as to Governor Patterson, but ignored this plaintiff’s demand for retraction. The matter contained in the advertisement was equally false as to both parties.

The Times could not justify its nonretraction as to this plaintiff by fallaciously asserting that the advertisement was substantially true, and further, that the advertisement as presented to The Times bore the names of endorsers whose reputation for truth it considered good.

The irresponsibility of these endorsers in attaching their names to this false and malicious advertisement cannot shield The Times from its irresponsibility in printing the advertisement and scattering it to the four winds.

[46] All in all we do not feel justified in mitigating the damages awarded by the jury, and approved by the trial judge below, by its judgment on the motion for a new trial, with the favorable presumption which attends the correctness of the verdict of the jury where the trial judge refuses to grant a new trial. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594.

In our considerations we have examined the case of New York Times Company v. Conner, (5CCA) 291 F.2d 492 (1961), wherein the Circuit Court of Appeals for the Fifth Circuit, relying exclusively upon Age Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A.L.R. 898, held that no cause of action for libel arose in Alabama where the alleged libel appeared in a newspaper primarily in New York.

This case overlooks, or ignores, the decisions of this court in Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441, wherein this court rejected the argument that the whole process of writing, editing, printing, transportation and distribution of a magazine should be regarded as one libel, and the locus of such libel was the place of primary publication. This court further, with crystal clarity, held that Age Herald Publishing Co. v. Huddleston, supra, concerned a venue statute, and that venue statutes do not apply to foreign corporations not qualified to do business in Alabama.

The statement of Alabama law in the Conner case, supra, is erroneous in light of our enunciation of what is the law of Alabama as set forth in the Johnson Publishing Company case, supra. This erroneous premise, as we interpret the Conner case, renders the opinion faulty, and of no persuasive authority in our present consideration. "The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." Sec. 1652, Title 28, U.S.C.A., 62 Stat. 944.

It is our conclusion that the judgment below is due to be affirmed, and it is so ordered.

Affirmed.

Livingston, C. J., and Simpson and Merrill, JJ., concur.

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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 the Petitioner

Louis M. Loeb

T. Eric Embry

Marvin E. Frankel

Ronald S. Diana

Doris Wechsler

Lord, Day & Lord

Beddow, Embry & Beddow

Of Counsel

Herbert Brownell

Thomas F. Daly

25 Broadway

New York 4, New York

Herbert Wechsler

435 West 116th St.

New York 27, New York

Attorneys for Petitioner

The New York Times Company

Index

Opinions Below

Jurisdiction

Questions Presented

Statement

• The Nature of the Publication
• The Allegedly Defamatory Statements
• The Impact of the Statements on Respondent's Reputation
• The Circumstances of the Publication
• The Response to the Demand for a Retraction
• The Rulings on the Merits
• The Jurisdiction of the Alabama Courts

Summary of Argument

Argument

• I.The decision rests upon a rule of liability for criticism of official conduct that abridges freedom of the press
  • First: The State Court's Misconception of the Constitutional Issues
  • Second: Seditious Libel and the Constitution
  • Third: The Absence of Accommodation of Conflicting Interests
  • Fourth: The Relevancy of the Official's Privilege
  • Fifth: The Protection of Editorial Advertisements
• II.Even if the rule of liability were valid on its face, the judgment rests on an invalid application
  • First: The Scope of Review
  • Second: The Failure to Establish Injury or Threat to Respondent's Reputation
  • Third: The Magnitude of the Verdict
• III.The assumption of jurisdiction in this action by the Courts of Alabama contravenes the Constitution
  • First: The Finding of a General Appearance
  • Second: The Territorial Limits of Due Process
  • Third: The Burden on Commerce
  • Fourth: The Freedom of the Press

Conclusion

Appendix A

Appendix B

OPINIONS BELOW

The opinion of the Supreme Court of Alabama (R. 1139) is reported in 273 Ala. 656, 144 So. 2d 25. The opinion of the Circuit Court, Montgomery County, on the petitioner's motion to quash service of process (R. 49) is unreported. There was no other opinion by the Circuit Court.

JURISDICTION

The judgment of the Supreme Court of Alabama (R. 1180) was entered August 30, 1962. The petition for a writ of certiorari was filed November 21, 1962 and was granted January 7, 1963. 371 U.S. 946. The jurisdiction of this Court is invoked under 28 U.S.C. 1257 (3).

QUESTIONS PRESENTED

• Whether, consistently with the guarantee of freedom of the press in the First Amendment as embodied in the Fourteenth, a State may hold libelous per se and actionable by an elected City Commissioner published statements critical of the conduct of a department of the City Government under his general supervision, which are inaccurate in some particulars.
• Whether there was sufficient evidence to justify, consistently with the constitutional guarantee of freedom of the press, the determination that published statements naming no individual but critical of the conduct of the "police" were defamatory as to the respondent, the elected City Commissioner with jurisdiction over the Police Department, and punishable as libelous per se.
• Whether an award of $500,000 as "presumed" and punitive damages for libel constituted, in the circumstances of this case, an abridgment of the freedom of the press.
• Whether the assumption of jurisdiction in a libel action against a foreign corporation publishing a newspaper in another State, based upon sporadic news gathering activities by correspondents, occasional solicitation of advertising and minuscule distribution of the newspaper within the forum state, transcended the territorial limitations of due process, imposed a forbidden burden on interstate commerce or abridged the freedom of the press.

Constitutional and statutory provisions involved The constitutional and statutory provisions involved are set forth in Appendix A, infra, pp. 91-95.

STATEMENT

On April 19, 1960, the respondent, one of three elected Commissioners of the City of Montgomery, Alabama, instituted this action in the Circuit Court of Montgomery County against The New York Times, a New York corporation, and four co-defendants resident in Alabama, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery. The complaint (R. 1) demanded $500,000 as damages for libel allegedly contained in two paragraphs of an advertisement (R. 6) published in The New York Times on March 29, 1960. Service of process was attempted by delivery to an alleged agent of The Times in Alabama and by substituted service (R. 11) pursuant to the "long-arm" statute of the State. A motion to quash, asserting constitutional objections to the jurisdiction of the Circuit Court (R. 39, 43-44, 47, 129) was denied on August 5, 1960 (R. 49). A demurrer to the complaint (R. 58, 67) was overruled on November 1, 1960 (R. 108) and the cause proceeded to a trial by jury, resulting on November 3 in a verdict against all defendants for the full $500,000 claimed (R. 862). A motion for new trial (R. 896, 969) was denied on March 17, 1961 (R. 970). The Supreme Court of Alabama affirmed the judgment on August 30, 1962 (R. 1180). The Circuit Court and the Supreme Court both rejected the petitioner's contention that the liability imposed abridged the freedom of the press.

1. The nature of the publicationThe advertisement, a copy of which was attached to the complaint (R. 1, 6), consisted of a full page statement (reproduced in Appendix B, infra p. 97) entitled "Heed Their Rising Voices", a phrase taken from a New York Times editorial of March 19, 1960, which was quoted at the top of the page as follows: "The growing movement of peaceful mass demonstrations by Negroes is something new in the South, something understandable . . . Let Congress heed their rising voices, for they will be heard."

The statement consisted of an appeal for contributions to the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South" to support "three needs—the defense of Martin Luther King—the support of the embattled students—and the struggle for the right-to-vote." It was set forth over the names of sixty-four individuals, including many who are well known for achievement in religion, humanitarian work, public affairs, trade unions and the arts. Under a line reading "We in the South who are struggling daily for dignity and freedom warmly endorse this appeal" appeared the names of twenty other persons, eighteen of whom are identified as clergymen in various southern cities. A New York address and telephone number were given for the Committee, the officers of which were also listed, including three individuals whose names did not otherwise appear.

The first paragraph of the statement alluded generally to the "non-violent demonstrations" of Southern Negro students "in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." It went on to charge that in "their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . . "

The second paragraph told of a student effort in Orangeburg, South Carolina, to obtain service at lunch counters in the business district and asserted that the students were forcibly ejected, tear-gassed, arrested en masse and otherwise mistreated.

The third paragraph spoke of Montgomery, Alabama and complained of the treatment of students who sang on the steps of the State Capitol, charging that their leaders were expelled from school, that truckloads of armed police ringed the Alabama State College Campus and that the College dining-hall was padlocked in an effort to starve the protesting students into submission.

The fourth paragraph referred to "Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte and a host of other cities in the South," praising the action of "young American teenagers, in face of the entire weight of official state apparatus and police power," as "protagonists of democracy."

The fifth paragraph speculated that "The Southern violators of the Constitution fear this new, non-violent brand of freedom fighter . . . even as they fear the upswelling right-to-vote movement," that "they are determined to destroy the one man who more than any other, symbolizes the new spirit now sweeping the South—the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest." It went on to portray the leadership role of Dr. King and the Southern Christian Leadership Conference, which he founded, and to extol the inspiration of "his doctrine of non-violence".

The sixth paragraph asserted that the "Southern violators" have repeatedly "answered Dr. King's protests with intimidation and violence" and referred to the bombing of his home, assault upon his person, seven arrests and a then pending charge of perjury. It stated that "their real purpose is to remove him physically as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South", concluding that the defense of Dr. King "is an integral part of the total struggle for freedom in the South."

The remaining four paragraphs called upon "men and women of good will" to do more than "applaud the creative daring of the students and the quiet heroism of Dr. King" by adding their "moral support" and "the material help so urgently needed by those who are taking the risks, facing jail and even death in a glorious re-affirmation of our Constitution and its Bill of Rights".

2. The allegedly defamatory statementsOf the ten paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel.

(a) The third paragraph was as follows: "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 shot-guns 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."

Though the only part of this statement that respondent thought implied a reference to him was the assertion about "truckloads of police" (R. 712), he undertook and was permitted to deal with the paragraph in general by adducing evidence depicting the entire episode involved. His evidence consisted mainly of a story by Claude Sitton, the southern correspondent of The Times, published on March 2, 1960 (R. 655, 656-7, Pl. Ex. 169, R. 1568), a report requested by The Times from Don McKee, its "stringer" in Montgomery, after institution of this suit was threatened (R. 590-593, Pl. Ex. 348, R. 1931-1935), and a later telephoned report from Sitton to counsel for The Times, made on May 5, after suit was brought (R. 593-595, Pl. Ex. 348, R. 1935-1937).

This evidence showed that a succession of student demonstrations had occurred in Montgomery, beginning with an unsuccessful effort by some thirty Alabama State College students to obtain service at a lunch counter in the Montgomery County Court House. A thousand students had marched on March 1, 1960, from the College campus to the State Capitol, upon the steps of which they said the Lord's Prayer and sang the National Anthem before marching back to the campus. Nine student leaders of the lunch counter demonstration were expelled on March 2 by the State Board of Education, upon motion of Governor Patterson, and thirty-one others were placed on probation (R. 696-699, Pl. Ex. 364, R. 1972-1974), but the singing at the Capitol was not the basis of the disciplinary action or mentioned at the meeting of the Board (R. 701). Alabama State College students stayed away from classes on March 7 in a strike in sympathy with those expelled but virtually all of them returned to class after a day and most of them re-registered or had already done so. On March 8, there was another student demonstration at a church near the campus, followed by a march upon the campus, with students dancing around in conga lines and some becoming rowdy. The superintendent of grounds summoned the police and the students left the campus, but the police arrived as the demonstrators marched across the street and arrested thirty-two of them for disorderly conduct or failure to obey officers, charges on which they later pleaded guilty and were fined in varying amounts (R. 677-680, 681, 682).

A majority of the student body was probably involved at one time or another in the protest but not the "entire student body". The police did not at any time "ring" the campus, although they were deployed near the campus on three occasions in large numbers. The campus dining hall was never "padlocked" and the only students who may have been barred from eating were those relatively few who had neither signed a pre-registration application nor requested temporary meal tickets (R. 594, 591).

The paragraph was thus inaccurate in that it exaggerated the number of students involved in the protest and the extent of police activity and intervention. If, as the respondent argued (R. 743), it implied that the students were expelled for singing on the steps of the Capitol, this was erroneous; the expulsion was for the demand for service at a lunch counter in the Courthouse. There was, moreover, no foundation for the charge that the dining hall was padlocked in an effort to starve the students into submission, an allegation that especially aroused resentment in Montgomery (R. 605, 607, 949, 2001, 2002, 2007).

(b) The portion of the sixth paragraph of the statement relied on by respondent read as follows: "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."

As to this paragraph, which did not identify the time or place of the events recited, but which respondent read to allude to himself because it also "describes police action" (R. 724), his evidence showed that Dr. King's home had in fact been bombed twice when his wife and child were at home, though one of the bombs failed to explode—both of the occasions antedating the respondent's tenure as Commissioner (R. 594, 685, 688); that Dr. King had been arrested only four times, not seven, three of the arrests preceding the respondent's service as Commissioner (R. 592, 594-595, 703); that Dr. King had in fact been indicted for perjury on two counts, each carrying a possible sentence of five years imprisonment (R. 595), a charge on which he subsequently was acquitted (R. 680). It also showed that while Dr. King claimed to have been assaulted when he was arrested some four years earlier for loitering outside a courtroom (R. 594), one of the officers participating in arresting him and carrying him to a detention cell at headquarters denied that there was a physical assault (R. 692-693)—this incident also antedating the respondent's tenure as Commissioner (R. 694).

On the theory that the statement could be read to charge that the bombing of Dr. King's home was the work of the police (R. 707), respondent was permitted to call evidence that the police were not involved; that they in fact dismantled the bomb that did not explode; and that they did everything they could to apprehend the perpetrators of the bombings (R. 685-687)—also before respondent's tenure as Commissioner (R. 688). In the same vein, respondent testified himself that the police had not bombed the King home or assaulted Dr. King or condoned the bombing or assaulting; and that he had had nothing to do with procuring King's indictment (R. 707-709).

3. The impact of the statements on respondent's reputation As one of the three Commissioners of the City of Montgomery since October 5, 1959, specifically Commissioner of Public Affairs, respondent's duties were the supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales (R. 703). He was normally not responsible, however, for day-to-day police operations, including those during the Alabama State College episode referred to in the advertisement, these being under the immediate supervision of Montgomery's Chief of Police—though there was one occasion when the Chief was absent and respondent supervised directly (R. 720). It was stipulated that there were 175 full time policemen in the Montgomery Police Department, divided into three shifts and four divisions, and 24 "special traffic directors" for control of traffic at the schools (R. 787).

As stated in respondent's testimony, the basis for his role as aggrieved plaintiff was the "feeling" that the advertisement, which did not mention him or the Commission or Commissioners or any individual, "reflects not only on me but on the other Commissioners and the community" (R. 724). He felt particularly that statements referring to "police activities" or "police action" were associated with himself, impugning his "ability and integrity" and reflecting on him "as an individual" (R. 712, 713, 724). He also felt that the other statements in the passages complained of, such as that alluding to the bombing of King's home, referred to the Commissioners, to the Police Department and to him because they were contained in the same paragraphs as statements mentioning police activities (R. 717-718), though he conceded that as "far as the expulsion of students is concerned, that responsibility rests with the State Department of Education" (R. 716).

In addition to this testimony as to the respondent's feelings, six witnesses were permitted to express their opinions of the connotations of the statements and their effect on respondent's reputation.

Grover C. Hall, editor of the Montgomery Advertiser, who had previously written an editorial attacking the advertisement (R. 607, 613, 949), testified that he thought he would associate the third paragraph "with the City Government—the Commissioners" (R. 605) and "would naturally think a little more about the police commissioner" (R. 608). It was "the phrase about starvation" that led to the association; the "other didn't hit" him "with any particular force" (R. 607, 608). He thought "starvation is an instrument of reprisal and would certainly be indefensible . . . in any case" (R. 605).

Arnold D. Blackwell, a member of the Water Works Board appointed by the Commissioners (R. 621) and a businessman engaged in real estate and insurance (R. 613), testified that the third paragraph was associated in his mind with "the Police Commissioner" and the "people on the police force"; that if it were true that the dining hall was padlocked in an effort to starve the students into submission, he would "think that the people on our police force or the heads of our police force were acting without their jurisdiction and would not be competent for the position" (R. 617, 624). He also associated the statement about "truck-loads of police" with the police force and the Police Commissioner (R. 627). With respect to the "Southern violators" passage, he associated the statement about the arrests with "the police force" but not the "sentences above that" (R. 624) or the statement about the charge of perjury (R. 625).

Harry W. Kaminsky, sales manager of a clothing store (R. 634) and a close friend of the respondent (R. 644), also associated the third paragraph with "the Commissioners" (R. 635), though not the statement about the expulsion of the students (R. 639). Asked on direct examination about the sentences in the sixth paragraph, he said that he "would say that it refers to the same people in the paragraph that we look at before", i.e., to "The Commissioners", including the respondent (R. 636). On cross-examination, however, he could not say that he associated those statements with the respondent, except that he thought that the reference to arrests "implicates the Police Department . . . or the authorities that would do that—arrest folks for speeding and loitering and such as that" (R. 639-640). In general, he would "look at" the respondent when he saw "the Police Department" (R. 641).

H. M. Price, Sr., owner of a small food equipment business (R. 644), associated "the statements contained" in both paragraphs with "the head of the Police Department", the respondent (R. 646). Asked what it was that made him think of the respondent, he read the first sentence of the third paragraph and added: "Now, I would just automatically consider that the Police Commissioner in Montgomery would have to put his approval on those kind of things as an individual" (R. 647). If he believed the statements contained in the two paragraphs to be true, he would "decide that we probably had a young Gestapo in Montgomery" (R. 645-646).

William M. Parker, Jr., a friend of the respondent and of Mayor James (R. 651), in the service station business, associated "those statements in those paragraphs" with the City Commissioners (R. 650) and since the respondent "was the Police Commissioner", he "thought of him first" (R. 651). If he believed the statements to be true, he testified that he would think the respondent "would be trying to run this town with a strong arm—strong armed tactics, rather, going against the oath he took to run his office in a peaceful manner and an upright manner for all citizens of Montgomery" (R. 650).

Finally, Horace W. White, proprietor of the P. C. White Truck Line (R. 662), a former employer of respondent (R. 664), testified that both of the paragraphs meant to him "Mr. L. B. Sullivan" (R. 663). The statement in the advertisement that indicated to him that it referred to the respondent was that about "truck-loads of police", which made him think of the police and of respondent "as being the head of the Police Department" (R. 666). If he believed the statements, he doubted whether he "would want to be associated with anybody who would be a party to such things" (R. 664) and he would not re-employ respondent for P. C. White Truck Line if he thought that "he allowed the Police Department to do the things the paper say he did" (R. 667, 664, 669).

None of the six witnesses testified that he believed any of the statements that he took to refer to respondent and all but Hall specifically testified that they did not believe them (R. 623, 636, 647, 651, 667). None was led to think less kindly of respondent because of the advertisement (R. 625, 638, 647, 651, 666). Nor could respondent point to any injury that he had suffered or to any sign that he was held in less esteem (R. 721-724).

Four of the witnesses, moreover, Blackwell, Kaminsky, Price and Parker, saw the publication first when it was shown to them in the office of respondent's counsel to equip them as witnesses (R. 618, 637, 643, 647, 649). Their testimony should, therefore, have been disregarded under the trial court's instruction that the jury should "disregard . . . entirely" the testimony of any witness "based upon his reading of the advertisement complained of here, only after having been shown a copy of same by the plaintiff or his attorneys" (R. 833). White did not recall when he first saw the advertisement; he believed, though he was not sure, that "somebody cut it out of the paper and mailed it" to him or left it on his desk (R. 662, 665, 668). Only Hall, whose testimony was confined to the phrase about starving students into submission (R. 605, 607), received the publication in ordinary course at The Montgomery Advertiser (R. 606, 726-727).

4. The circumstances of the publication The advertisement was published by The Times upon an order from the Union Advertising Service, a reputable New York advertising agency, acting for the Committee to Defend Martin Luther King (R. 584-585, 737, Pl. Ex. 350, R. 1957). The order was dated March 28, 1960, but the proposed typescript of the ad had actually been delivered on March 23 by John Murray, a writer acting for the Committee, who had participated in its composition (R. 731, 805). Murray gave the copy to Gershon Aaronson, a member of the National Advertising Staff of The Times specializing in "editorial type" advertisements (R. 731, 738), who promptly passed it on to technical departments and sent a thermo-fax copy to the Advertising Acceptability Department, in charge of the screening of advertisements (R. 733, 734, 756). D. Vincent Redding, the manager of that department, read the copy on March 25 and approved it for publication (R. 758). He gave his approval because he knew nothing to cause him to believe that anything in the proposed text was false and because it bore the endorsement of "a number of people who are well known and whose reputation" he "had no reason to question" (R. 758, 759-760, 762-763). He did not make or think it necessary to make any further check as to the accuracy of the statements (R. 765, 771).

When Redding passed on the acceptability of the advertisement, the copy was accompanied by a letter from A. Philip Randolph, Chairman of the Committee, to Aaronson, dated March 23 (R. 587, 757, Def. Ex. 7, R. 1992) and reading: "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 us permission to use their names in furthering the work of our Committee."

The routine of The Times is to accept such a letter from a responsible person to establish that names have not been used without permission and Redding followed that practice in this case (R. 759). Each of the individual defendants testified, however, that he had not authorized the Committee to use his name (R. 787-804) and Murray testified that the original copy of the advertisement, to which the Randolph letter related, did not contain the statement "We in the South . . . warmly endorse this appeal" or any of the names printed thereunder, including those of these defendants. That statement and those names were added, he explained, to a revision of the proof on the suggestion of Bayard Rustin, the Director of the Committee. Rustin told Murray that it was unnecessary to obtain the consent of the individuals involved since they were all members of the Southern Christian Leadership Conference, as indicated by its letterhead, and "since the SCLC supports the work of the Committee . . . he [Rustin] . . . felt that there would be no problem at all, and that you didn't even have to consult them" (R. 806-809). Redding did not recall this difference in the list of names (R. 767), though Aaronson remembered that there "were a few changes made . . . prior to publication" (R. 739).

The New York Times has set forth in a booklet its "Advertising Acceptability Standards" (R. 598, Pl. Ex. 348, Exh. F, R. 1952) declaring, inter alia, that The Times does not accept advertisements that are fraudulent or deceptive, that are "ambiguous in wording and . . . may mislead" or "[a]ttacks of a personal character". In replying to the plaintiff's interrogatories, Harding Bancroft, Secretary of The Times, deposed that "as the advertisement made no attacks of a personal character upon any individual and otherwise met the advertising acceptability standards promulgated" by The Times, D. Vincent Redding had approved it (R. 585).

Though Redding and not Aaronson was thus responsible for the acceptance of the ad, Aaronson was cross-examined at great length about such matters as the clarity or ambiguity of its language (R. 741-753), the court allowing the interrogation on the stated ground that "this gentleman here is a very high official of The Times", which he, of course, was not (R. 744). In the course of this colloquy, Aaronson contradicted himself on the question whether the word "they" in the "Southern violators" passage refers to "the same people" throughout or to different people, saying first "It is rather difficult to tell" (R. 745) and later: "I think now that it probably refers to the same people" (R. 746). Redding was not interrogated on this point, which respondent, in his Brief in Opposition, deemed established by what Aaronson "conceded" (Brief in Opposition, p. 7).

The Times was paid "a little over" $4800 for the publication of the advertisement (R. 752). The total circulation of the issue of March 29, 1960, was approximately 650,000, of which approximately 394 copies were mailed to Alabama subscribers or shipped to newsdealers in the State, approximately 35 copies going to Montgomery County (R. 601-602, Pl. Ex. 348, R. 1942-1943).

5. The response to the demand for a retraction On April 8, 1960, respondent wrote to the petitioner and to the four individual defendants, the letters being erroneously dated March 8 (R. 588, 671, 776, Pl. Ex. 348, 355-358, R. 1949, 1962-1968). The letters, which were in identical terms, set out the passages in the advertisement complained of by respondent, asserted that the "foregoing matter, and the publication as a whole charge me with grave misconduct and of [sic] improper actions and omissions as an official of the City of Montgomery" and called on the addressee to "publish in as prominent and as public a manner as the foregoing false and defamatory material contained in the foregoing publication, a full and fair retraction of the entire false and defamatory matter so far as the same relates to me and to my conduct and acts as a public official of the City of Montgomery, Alabama."

Upon receiving this demand and the report from Don McKee, the Times stringer in Montgomery referred to above (p. 7), petitioner's counsel wrote to the respondent on April 15, as follows (R. 589, Pl. Ex. 363, R. 1971): Dear Mr. Commissioner:Your letter of April 8 sent by registered mail to The New York Times Company has been referred for attention to us as general counsel.You will appreciate, we feel sure, that the statements to which you object were not made by The New York Times but were contained in an advertisement proffered to The Times by responsible persons.We have been investigating the matter and are somewhat puzzled as to how you think the statements in any way reflect on you. So far, our investigation would seem to indicate that the statements are substantially correct with the sole exception that we find no justification for the statement that the dining hall in the State College was "padlocked in an attempt to starve them into submission."We shall continue to look into the subject matter because our client, The New York Times, is always desirous of correcting any statements which appear in its paper and which turn out to be erroneous.In the meanwhile you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you.Very truly yours,Lord, Day & Lord

The respondent filed suit on April 19, without answering this letter.

Subsequently, on May 9, 1960, Governor John Patterson of Alabama, sent a similar demand for a retraction to The Times, asserting that the publication charged him "with grave misconduct and of [sic] improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of Alabama" and demanding publication of a retraction of the material so far as it related to him and to his conduct as Governor and Ex-Officio Chairman.

On May 16, the President and Publisher of The Times wrote Governor Patterson as follows (R. 773, Def. Ex. 9, R. 1998): Dear Governor Patterson:In response to your letter of May 9th, we are enclosing herewith a page of today's New York Times which contains the retraction and apology requested.As stated in the retraction, to the extent that anyone could fairly conclude from the advertisement that any charge was made against you, The New York Times apologizes.Faithfully yours,Orvil Dryfoos

The publication in The Times (Pl. Ex. 351, R. 1958), referred to in the letter, appeared under the headline "Times Retracts Statement in Ad" and the subhead "Acts on Protest of Alabama Governor Over Assertions in Segregation Matter". After preliminary paragraphs reporting the Governor's protest and quoting his letter in full, including the specific language of which he complained, the account set forth a "statement by The New York Times" as follows: The advertisement containing the statements to which Governor Patterson objects was received by The Times in the regular course of business from and paid for by a recognized advertising agency in behalf of a group which included among its subscribers well-known citizens. The publication of an advertisement does not constitute a factual news report by The Times nor does it reflect the judgment or the opinion of the editors of The Times. 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 New York Times never intended to suggest by the publication of the advertisement that the Honorable John Patterson, either in his capacity as Governor or as ex-officio chairman of the Board of Education of the State of Alabama, or otherwise, was guilty of "grave misconduct or improper actions and omission". To the extent that anyone can fairly conclude from the statements in the advertisement that any such charge was made, The New York Times hereby apologizes to the Honorable John Patterson therefor.

The publication closed with a recapitulation of the names of the signers and endorsers of the advertisement and of the officers of the Committee to Defend Martin Luther King.

In response to a demand in respondent's pre-trial interrogatories to "explain why said retraction was made but no retraction was made on the demand of the plaintiff", Mr. Bancroft, Secretary of The Times, said that The Times published the retraction in response to the Governor's demand "although in its judgment no statement in said advertisement referred to John Patterson either personally or as Governor of the State of Alabama, nor referred to this plaintiff [Sullivan] or any of the plaintiffs in the companion suits. The defendant, however, 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, Pl. Ex. 348, R. 1942). In further explanation at the trial, Bancroft testified: "We did that because we didn't want anything that was published by The Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education presumably of which the Governor is ex-officio chairman . . . " (R. 776-777). On the other hand, he did not think that "any of the language in there referred to Mr. Sullivan" (R. 777).

This evidence, together with Mr. Bancroft's further testimony that apart from the statement in the advertisement that the dining hall was padlocked, he thought that "the tenor of the content, the material of those two paragraphs in the ad . . . are . . . substantially correct" (R. 781, 785), was deemed by the Supreme Court of Alabama to lend support to the verdict of the jury and the size of its award (R. 1178).

6. The rulings on the merits The Circuit Court held that the facts alleged and proved sufficed to establish liability of the defendants, if the jury was satisfied that the statements complained of by respondent were published of and concerning him. Overruling a demurrer to the complaint (R. 108) and declining to direct a verdict for petitioner (R. 728-729, 818), the court charged the jury (R. 819-826) that the statements relied on by the plaintiff were "libelous per se"; that "the law implies legal injury from the bare fact of the publication itself"; that "falsity and malice are presumed"; that "[g]eneral damages need not be alleged or proved but are presumed" (R. 824); and that "punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown" (R. 825). While the court instructed, as requested, that "mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages" (R. 836), it refused to instruct that the jury must be "convinced" of malice, in the sense of "actual intent" to harm or "gross negligence and recklessness" to make such an award (R. 844). It also declined to require that a verdict for respondent differentiate between compensatory and punitive damages (R. 846).

Petitioner challenged these rulings as an abridgment of the freedom of the press, in violation of the First and the Fourteenth Amendments, and also contended that the verdict was confiscatory in amount and an infringement of the constitutional protection (R. 73-74, 898, 929-930, 935, 936-937, 945-946, 948). A motion for new trial, assigning these grounds among others (R. 896-949), was denied by the Circuit Court (R. 969).

The Supreme Court of Alabama sustained these rulings on appeal (R. 1139, 1180). It held that where "the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tends to bring the individual into public contempt," they are "libelous per se"; that "the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff" (R. 1155); and that it was actionable without "proof of pecuniary injury . . ., such injury being implied" (R. 1160-1161). It found no error in the trial court's ruling that the complaint alleged and the evidence established libelous statements which the jury could find were "of and pertaining to" respondent (R. 1158, 1160), reasoning as follows (R. 1157): "We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body."

The Court also approved the trial court's charge as "a fair, accurate and clear expression of the governing legal principles" (R. 1167) and sustained its determination that the damages awarded by the verdict were not excessive (R. 1179). On the latter point, the Court endorsed a statement in an earlier opinion that there "is no legal measure of damages in cases of this character" (R. 1177) and held to be decisive that "The Times in its own files had articles already published which would have demonstrated the falsity of the allegations in the advertisement"; that "The Times retracted the advertisement as to Governor Patterson, but ignored this plaintiff's demand for retraction" though the "matter contained in the advertisement was equally false as to both parties"; that in "the trial below none of the defendants questioned the falsity of the allegations in the advertisement" and, simultaneously, that "during his testimony it was the contention of the Secretary of The Times that the advertisement was ‘substantially correct' " (R. 1178).

Petitioner's submissions under the First and the Fourteenth Amendments (assignments of error 81, 289-291, 294, 296, 298, 306-308, 310; R. 1055, 1091-1094, 1096-1097, 1098) were summarily rejected with the statements that the "First Amendment of the U.S. Constitution does not protect libelous publications" and the "Fourteenth Amendment is directed against State action and not private action" (R. 1160).

7. The jurisdiction of the Alabama courts Respondent sought to effect service in this action (R. 11) by delivery of process to Don McKee, the New York Times stringer in Montgomery, claimed to be an agent under § 188, Alabama Code of 1940, title 7 (Appendix A, infra, pp. 91-92), and by delivery to the Secretary of State under § 199(1), the "long-arm" statute of the State (Appendix A, infra, pp. 92-95). Petitioner, appearing specially and only for this purpose, moved to quash the service on the ground, among others, that the subjection of The Times to Alabama jurisdiction in this action would transcend the territorial limitations of due process in violation of the Fourteenth Amendment, impose a burden on interstate commerce forbidden by the Commerce Clause and abridge the freedom of the press (R. 39, 43-44, 47; see also, e.g., R. 129).

The evidence adduced upon the litigation of the motion (R. 130-566) established the following facts:

Petitioner is a New York corporation which has not qualified to do business in Alabama or designated anyone to accept service of process there (R. 134-135). It has no office, property or employees resident in Alabama (R. 146, 403-404, 438-439). Its staff correspondents do, however, visit the State as the occasion may arise for purposes of newsgathering. From the beginning of 1956 through April, 1960, nine correspondents made such visits, spending, the courts below found, 153 days in Alabama, or an average of some thirty-six man-days per year. In the first five months of 1960, there were three such visits by Claude Sitton, the staff correspondent stationed in Atlanta (R. 311-314, 320, Pl. Ex. 91-93, R. 1356-1358) and one by Harrison Salisbury (R. 145, 239, Pl. Ex. 117, R. 1382). The Times also had an arrangement with newspapermen, employed by Alabama journals, to function as "stringers", paying them for stories they sent in that were requested or accepted at the rate of a cent a word and also using them occasionally to furnish information to the desk (e.g., R. 175, 176) or to a correspondent (R. 136-137, 140, 153, 154). The effort was to have three such stringers in the State, including one in Montgomery (R. 149, 309) but only two received payments from The Times in 1960, Chadwick of South Magazine, who was paid $155 to July 26, and McKee of The Montgomery Advertiser, who was paid $90, covering both dispatches and assistance given Salisbury (R. 140, 143, 155, 159, 308-309, 441). McKee was also asked to investigate the facts relating to respondent's claim of libel, which he did (R. 202, 207). The total payments made by petitioner to stringers throughout the country during the first five months of 1960 was about $245,000 (R. 442). Stringers are not treated as employees for purposes of taxes or employee benefits (R. 439-440, 141-143).

The advertisement complained of in this action was prepared, submitted and accepted in New York, where the newspaper is published (R. 390-393, 438). The total daily circulation of The Times in March, 1960, was 650,000, of which the total sent to Alabama was 394—351 to mail subscribers and 43 to dealers. The Sunday circulation was 1,300,000, of which the Alabama shipments totaled 2,440 (Def. Ex. No. 4, R. 1981, R. 401-402). These papers were either mailed to subscribers who had paid for a subscription in advance (R. 427) or they were shipped prepaid by rail or air to Alabama newsdealers, whose orders were unsolicited (R. 404-408, 444) and with whom there was no contract (R. 409). The Times would credit dealers for papers which were unsold or arrived late, damaged or incomplete, the usual custom being for the dealer to get the irregularities certified by the railroad baggage man upon a card provided by The Times (R. 408-409, 410-412, Pl. Ex. 276-309, R. 1751-1827, R. 414, 420-426), though this formality had not been observed in Alabama (R. 432-436). Gross revenue from this Alabama circulation was approximately $20,000 in the first five months of 1960 of a total gross from circulation of about $8,500,000 (R. 445). The Times made absolutely no attempt to solicit or promote its sale or distribution in Alabama (R. 407-408, 428, 450, 485).

The Times accepted advertising from Alabama sources, principally advertising agencies which sent their copy to New York, where any contract for its publication was made (R. 344-349, 543); the agency would then be billed for cost, less the amount of its 15% commission (R. 353-354). The New York Times Sales, Inc., a wholly-owned subsidiary corporation, solicited advertisements in Alabama, though it had no office or resident employees in the State (R. 359-361, 539, 482). Two employees of Sales, Inc. and two employees of The Times spent a total of 26 days in Alabama for this purpose in 1959; and one of the Sales, Inc. men spent one day there before the end of May in 1960 (R. 336-338, Def. Ex. 1, R. 1978, 546, 548-551). Alabama advertising linage, both volunteered and solicited, amounted to 5471 in 1959 of a total of 60,000,000 published; it amounted to 13,254 through May of 1960 of a total of 20,000,000 lines (R. 342-344, 341, Def. Ex. 2, R. 1979). An Alabama supplement published in 1958 (R. 379, Pl. Ex. 273, R. 1689-1742) produced payments by Alabama advertisers of $26,801.64 (R. 380). For the first five months of 1960 gross revenue from advertising placed by Alabama agencies or advertisers was $17,000 to $18,000 of a total advertising revenue of $37,500,000 (R. 443). The gross from Alabama advertising and circulation during this period was $37,300 of a national total of $46,000,000 (R. 446).

On these facts, the courts below held that petitioner was subject to the jurisdiction of the Circuit Court in this action, sustaining both the service on McKee as a claimed agent and the substituted service on the Secretary of State and rejecting the constitutional objections urged (R. 49, 51-57, 1139, 1140-1151). Both courts deemed the newsgathering activities of correspondents and stringers, the solicitation and publication of advertising from Alabama sources and the distribution of the paper in the State to constitute sufficient Alabama "contacts" to support the exercise of jurisdiction (R. 56-57, 1142-1147). They also held that though petitioner had appeared specially upon the motion for the sole purpose of presenting these objections, as permitted by the Alabama practice, the fact that the prayer for relief asked for dismissal for "lack of jurisdiction of the subject matter" of the action, as well as want of jurisdiction of the person of defendant, constituted a general appearance and submission to the jurisdiction of the Court (R. 49-51, 1151-1153).

SUMMARY OF ARGUMENT

I

Under the doctrine of "libel per se" applied below, a public official is entitled to recover "presumed" and punitive damages for a publication found to be critical of the official conduct of a governmental agency under his general supervision if a jury thinks the publication "tends" to "injure" him "in his reputation" or to "bring" him "into public contempt" as an official. The publisher has no defense unless he can persuade the jury that the publication is entirely true in all its factual, material particulars. The doctrine not only dispenses with proof of injury by the complaining official, but presumes malice and falsity as well. Such a rule of liability works an abridgment of the freedom of the press.

The court below entirely misconceived the constitutional issues, in thinking them disposed of by the propositions that "the Constitution does not protect libelous publications" and that the "Fourteenth Amendment is directed against State action and not private action" (R. 1160). The requirements of the First Amendment are not satisfied by the "mere labels" of State law. N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963); see also Beauharnais v. Illinois, 343 U.S. 250, 263-264 (1952). The rule of law and the judgment challenged by petitioner are, of course, state action within the meaning of the Fourteenth Amendment.

If libel does not enjoy a talismanic insulation from the limitations of the First and Fourteenth Amendments, the principle of liability applied below infringes "these basic constitutional rights in their most pristine and classic form." Edwards v. South Carolina, 372 U.S. 229, 235 (1963). Whatever other ends are also served by freedom of the press, its safeguard "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957). It is clear that the political expression thus protected by the fundamental law is not delimited by any test of truth, to be administered by juries, courts, or by executive officials. N.A.A.C.P. v. Button, supra, at 445; Cantwell v. Connecticut, 310 U.S. 296, 310 (1940). It also is implicit in this Court's decisions that speech or publication which is critical of governmental or official action may not be repressed upon the ground that it diminishes the reputation of those officers whose conduct it deplores or of the government of which they are a part.

The closest analogy in the decided cases is provided by those dealing with contempt, where it is settled that concern for the dignity and reputation of the bench does not support the punishment of criticism of the judge or his decision, whether the utterance is true or false. Bridges v. California, 314 U.S. 252, 270 (1941); Pennekamp v. Florida, 328 U.S. 331, 342 (1946); Wood v. Georgia, 370 U.S. 375 (1962). Comparable criticism of an elected, political official cannot consistently be punished as a libel on the ground that it diminishes his reputation. If political criticism could be punished on the ground that it endangers the esteem with which its object is regarded, none safely could be uttered that was anything but praise.

That neither falsity nor tendency to harm official reputation, nor both in combination, justifies repression of the criticism of official conduct was the central lesson of the great assault on the short-lived Sedition Act of 1798, which the verdict of history has long deemed inconsistent with the First Amendment. The rule of liability applied below is even more repressive in its function and effect than that prescribed by the Sedition Act: it lacks the safeguards of criminal sanctions; it does not require proof that the defendant's purpose was to bring the official into contempt or disrepute; it permits, as this case illustrates, a multiplication of suits based on a single statement; it allows legally limitless awards of punitive damages. Moreover, reviving by judicial decision the worst aspect of the Sedition Act, the doctrine of this case forbids criticism of the government as such on the theory that top officers, though they are not named in statements attacking the official conduct of their agencies, are presumed to be hurt because such critiques are "attached to" them (R. 1157).

Assuming, without conceding, that the protection of official reputations is a valid interest of the State and that the Constitution allows room for the "accommodation" of that interest and the freedom of political expression, the rule applied below is still invalid. It reflects no compromise of the competing interests; that favored by the First Amendment has been totally rejected, the opposing interest totally preferred. If there is scope for the protection of official reputation against criticism of official conduct, measures of liability far less destructive of the freedom of expression are available and adequate to serve that end. It might be required, for example, that the official prove special damage, actual malice, or both. The Alabama rule embraces neither mitigation. Neither would allow a judgment for respondent on the evidence that he presents.

The foregoing arguments are fortified by the privilege the law of libel grants to an official if he denigrates a private individual. It would invert the scale of values vital to a free society if citizens discharging the "political duty" of "public discussion" (Brandeis, J., concurring in Whitney v. California, 274 U.S. 357, 375 [1927]) did not enjoy a fair equivalent of the immunity granted to officials as a necessary incident of the performance of official duties.

Finally, respondent's argument that the publication is a "commercial advertisment", beyond the safeguard of the First Amendment, is entirely frivolous. The statement was a recital of grievances and protest against claimed abuse dealing squarely with the major issue of our time.

II

Whether or not the rule of liability is valid on its face, its application in this case abridges freedom of the press. For nothing in the evidence supports a finding of the type of injury or threat to the respondent's reputation that conceivably might justify repression of the publication or give ground for the enormous judgment rendered on the verdict.

Complaining broadly against suppression of Negro rights throughout the South, the publication did not name respondent or the Commission of which he is a member and plainly was not meant as an attack on him or any other individual. Its protests and its targets were impersonal: "the police", "the state authorities", "the Southern violators". The finding that these collective generalities embodied an allusion to respondent's personal identity rests solely on the reference to "the police" and on his jurisdiction over that department. But the police consisted of too large a group for such a personal allusion to be found. The term "police" does not, in fact, mean all policemen. No more so does it mean the Mayor or Commissioner in charge. This fatal weakness in the claim that the respondent was referred to by the publication was not cured by his own testimony or that of his six witnesses; they did no more than express the opinion that "police" meant the respondent, because he is Commissioner in charge. These "mere general asseverations" (Norris v. Alabama, 294 U.S. 587, 595 [1935]) were not evidence of what the publication said or what it reasonably could be held to mean.

Even if the statements that refer to "the police" could validly be taken to refer to the respondent, there was nothing in those statements that suffices to support the judgment. Where the publication said that "truckloads" of armed police "ringed the Alabama State College Campus", the fact was that only "large numbers" of police "were deployed near the campus" upon three occasions, without ringing it on any. And where the statement said "They have arrested him seven times", the fact was that Dr. King had been arrested only four times. That these exaggerations or inaccuracies cannot rationally be regarded as tending to injure the respondent's reputation is entirely clear. The advertisement was also wrong in saying that 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." Only a few students refused to re-register and the dining hall was never padlocked. But none of these erroneous assertions had a thing to do with the police and even less with the respondent. It was equally absurd for respondent to claim injury because the publication correctly reported that some unidentified "they" had twice bombed the home of Dr. King, and to insist on proving his innocence of that crime as the trial court permitted him to do.

That the respondent sustained no injury in fact from the publication, the record makes entirely clear.

Even if there were in this record a basis for considering the publication an offense to the respondent's reputation, there was no rational relationship between the gravity of the offense and the size of the penalty imposed. A "police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive." Brandeis, J., concurring in Whitney v. California, 274 U.S. 357, 377 (1927). The proposition must apply with special force when the "harsh" remedy has been explicitly designed as a deterrent of expression. Upon this ground alone, this monstrous judgment is repugnant to the Constitution.

III

The assumption of jurisdiction in this action by the Circuit Court, based on service of process on McKee and substituted service on the Secretary of State, transcended the territorial limits of due process, imposed a forbidden burden on interstate commerce and abridged the freedom of the press.

There was no basis for the holding by the courts below that petitioner forfeited these constitutional objections by making an involuntary general appearance in the cause. The finding of a general appearance was based solely on the fact that when petitioner appeared specially and moved to quash the attempted service for want of jurisdiction of its person, as permitted by the Alabama practice, the prayer for relief concluded with a further request for dismissal for "lack of jurisdiction of the subject matter of said action." That prayer did not manifest an intention to "consent" or to make "a voluntary submission to the jurisdiction of the court", which the Alabama cases have required to convert a special into a general appearance. Ex parte Cullinan, 224 Ala. 263, 266 (1931). The papers made entirely clear that the sole ruling sought by the petitioner was that it was not amenable to Alabama jurisdiction, as a New York corporation having no sufficient contact with the State to permit the assertion of jurisdiction in personam in an action based upon a publication in New York.

Moreover, even if petitioner could validly be taken to have made an involuntary general appearance, that appearance would not bar the claim that in assuming jurisdiction of this action the state court imposed a forbidden burden on interstate commerce or that it abridged the freedom of the press. Davis v. Farmers Co-operative Co., 262 U.S. 312 (1923); Michigan Central R. R. Co. v. Mix, 278 U.S. 492, 496 (1929); Denver & R. G. W. R. Co. v. Terte, 284 U.S. 284, 287 (1932).

The decisions of this Court do not support the holding that the sporadic newsgathering activities of correspondents and stringers of The Times in Alabama, the occasional solicitation and publication of advertising from Alabama sources and the minuscule shipment of the newspaper to subscribers and newsdealers in the State constitute sufficient Alabama contacts to satisfy the requirements of due process.

The petitioner's peripheral relationship to Alabama does not involve "continuous corporate operations" which are "so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities." International Shoe Co. v. Washington, 326 U.S. 310, 318 (1945); Perkins v. Benguet Mining Co., 342 U.S. 437 (1952). Hence, if the jurisdiction is sustained, it must be on the ground that the cause of action alleged is so "connected with" petitioner's "activities within the state" as to "make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there." International Shoe Co. v. Washington, supra, at 319, 317. There is no such connection. Here, as in Hanson v. Denckla, 357 U.S. 235, 252 (1958), the "suit cannot be said to be one to enforce an obligation that arose from a privilege the defendant exercised in" the State. The liability alleged is not based on any activity of correspondents or stringers of The Times in covering the news in Alabama; and such activity does not rest on a privilege the State confers, given the rights safeguarded by the Constitution. Nor is this claim connected with the occasional solicitation of advertisements in Alabama. Finally, the negligible circulation of The Times in Alabama does not involve an act of the petitioner within the State. Copies were mailed in New York to Alabama subscribers or shipped in New York to newsdealers who were purchasers, not agents of The Times.

Even if the shipment of the paper may be deemed an act of the petitioner in Alabama, it does not sustain the jurisdiction here affirmed. The standard of International Shoe is not "simply mechanical or quantitative"; its application "must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure" (326 U.S. at 319). Measured by this standard, a principle which would require, in effect, that almost every newspaper defend a libel suit in almost any jurisdiction of the country, however trivial its circulation there may be, would not further the "fair and orderly administration of the laws". To the extent that this submission prefers the interest of the publisher to that of the plaintiff, the preference is one supported by the First Amendment. It also is supported by the fact that the plaintiff's grievance rests but fancifully on the insubstantial distribution of the publication in the forum, as distinguished from its major circulation out of state.

The decision in McGee v. International Life Ins. Co., 355 U.S. 220 (1957) does not govern the disposition here. The contract executed in McGee constituted a continuing legal relationship between the insurer and the insured within the State, a relationship which the States, with the concurrence of Congress, have long deemed to require special regulation. Hanson v. Denckla, supra, at 252; Travelers Health Assn. v. Virginia, 339 U.S. 643 (1950). Scripto v. Carson, 362 U.S. 207 (1960), relied on by respondent, is totally irrelevant to the problem of judicial jurisdiction.

The need for reciprocal restraints upon the power of the States to exert jurisdiction over men and institutions not within their borders is emphasized in our society by the full faith and credit clause of the Constitution. An Alabama judgment in this case would have no practical importance were it not enforceable as such in States where the petitioner's resources are located. Thus jurisdictional delineations must be based on grounds that command general assent throughout the Union. No standard worthy of such general assent sustains the jurisdiction here.

If negligible state circulation of a paper published in another state suffices to establish jurisdiction of a suit for libel threatening the type of judgment rendered here, such distribution interstate cannot continue. So, too, if the interstate movement of correspondents provides a factor tending to sustain such jurisdiction, as the court below declared, a strong barrier to such movement has been erected. In the silence of Congress, such movement and distribution are protected by the commerce clause against burdensome state action, unsupported by an overriding local interest. Such a burden has been imposed here.

Newsgathering and circulation are both aspects of the freedom of the press, safeguarded by the Constitution. Neither can continue unimpaired if they subject the publisher to foreign jurisdiction on the grounds and of the scope asserted here. Accordingly, the jurisdictional determination is also repugnant to the First Amendment.

ARGUMENT

The decision of the Supreme Court of Alabama, sustaining the judgment of the Circuit Court, denies rights that are basic to the constitutional conception of a free society and contravenes a postulate of our federalism.

We submit, first (Points I and II), that the decision gives a scope and application to the law of libel so restrictive of the right to protest and to criticize official conduct that it abridges the protected freedom of the press.

We argue, secondly (Point III), that in requiring petitioner to answer in this action in the courts of Alabama, the decision violates the territorial restrictions that the Constitution places on State process, casts a forbidden burden on interstate commerce and also abridges freedom of the press.

I. The decision rests upon a rule of liability for criticism of official conduct that abridges freedom of the press.

Under the law of libel as declared below, a public official is entitled to recover "presumed" and punitive damages for a publication found to be critical of the official conduct of a governmental agency under his general supervision if a jury thinks the publication "tends" to "injure" him "in his reputation" or to "bring" him "into public contempt" as an official. The place of the official in the governmental hierarchy is, moreover, evidence sufficient to establish that his reputation has been jeopardized by statements that reflect upon the agency of which he is in charge. The publisher has no defense unless, as respondent noted in his Brief in Opposition (p. 18, n. 10), he can persuade the jury that the publication is entirely true in all its factual, material particulars. Ferdon v. Dickens, 161 Ala. 181, 185, 200-201 (1909); Kirkpatrick v. Journal Publishing Company, 210 Ala. 10, 11 (1923); Alabama Ride Company v. Vance, 235 Ala. 263, 265 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 495 (1960). Unless he can discharge this burden as to stated facts, he has no privilege of comment. Parsons v. Age-Herald Pub. Co., 181 Ala. 439, 450 (1913). Good motives or belief in truth, however reasonable, are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, at 495. A claim of truth which is regarded as unfounded affords evidence of malice, fortifying the presumption that applies in any case (R. 1178).

We submit that such a rule of liability works an abridgment of the freedom of the press, as that freedom has been defined by the decisions of this Court.

First: The State Court's misconception of the constitutional issues The reasons assigned by the Court below give no support to its rejection of petitioner's constitutional objections.

The accepted proposition that "[t]he Fourteenth Amendment is directed against State action and not private action" (R. 1160) obviously has no application to the case. The petitioner has challenged a State rule of law applied by a State court to render judgment carrying the full coercive power of the State, claiming full faith and credit through the Union solely on that ground. The rule and judgment are, of course, State action in the classic sense of the subject of the Amendment's limitations. See N.A.A.C.P. v. Alabama, 357 U.S. 449, 463 (1958); Barrows v. Jackson, 346 U.S. 249, 254 (1953); Shelley v. Kraemer, 334 U.S. 1, 14 (1948).

There is no greater merit in the other reason stated in the Court's opinion, that "the Constitution does not protect libelous publications." Statements to that effect have, to be sure, been made in passing in opinions of this Court. See Konigsberg v. State Bar of California, 366 U.S. 36, 49 (1961); Times Film Corporation v. City of Chicago, 365 U.S. 43, 48 (1961); Roth v. United States, 354 U.S. 476, 486 (1957); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); Pennekamp v. Florida, 328 U.S. 331, 348-349 (1946); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Near v. Minnesota, 283 U.S. 697, 715 (1931). But here, no less than elsewhere, a "great principle of constitutional law is not susceptible of comprehensive statement in an adjective." Carter v. Carter Coal Co., 298 U.S. 238, 327 (1936) (dissenting opinion of Cardozo, J.).

The statements cited meant no more than that the freedom of speech and of the press is not a universal absolute and leaves the States some room for the control of defamation. None of the cases sustained the repression as a libel of expression critical of governmental action or was concerned with the extent to which the law of libel may be used for the protection of official reputation. The dictum in Pennekamp that "when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants" left at large what may amount to defamation and what remedy a public servant has. Beauharnais alone dealt with the standards used in judging any kind of libel, sustaining with four dissenting votes a state conviction for a publication held to be both defamatory of a racial group and "liable to cause violence and disorder". Mr. Justice Frankfurter's opinion took pains to reserve this Court's "authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel"—adding that "public men are, as it were, public property," that "discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." 343 U.S. at 263-264. Those reservations, rather than the judgment, are apposite here.

Throughout the years this Court has measured by the standards of the First Amendment every formula for the repression of expression challenged at its bar. In that process judgment has been guided by the meaning and the purpose of the Constitution, interpreted as a "continuing instrument of government" (United States v. Classic, 313 U.S. 299, 316 [1941]), not by the vagaries or "mere labels" of state law. N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963). See also Mr. Chief Justice Warren in Trop v. Dulles, 356 U.S. 86, 94 (1958). Hence libel, like sedition, insurrection, contempt, advocacy of unlawful acts, breach of the peace, disorderly conduct, obscenity or barratry, to name but prime examples, must be defined and judged in terms that satisfy the First Amendment. The law of libel has no more immunity than other law from the supremacy of its command.

Second: Seditious libel and the Constitution If libel does not enjoy a talismanic insulation from the limitations of the First and Fourteenth Amendments, the principle of liability applied below, resting as it does on a "common law concept of the most general and undefined nature" (Cantwell v. Connecticut, 310 U.S. 296, 308 [1940]), infringes "these basic constitutional rights in their most pristine and classic form." Edwards v. South Carolina, 372 U.S. 229, 235 (1963).

Whatever other ends are also served by freedom of the press, its safeguard, as this Court has said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957). Its object comprehends the protection of that "right of freely examining public characters and measures, and of free communication among the people thereon," which, in the words of the Virginia Resolution, "has ever been justly deemed the only effectual guardian of every other right." 4 Elliot's Debates (1876), p. 554. The "opportunity for free political discussion" and "debate" secured by the First Amendment (Stromberg v. California, 283 U.S. 359, 369 [1931]; DeJonge v. Oregon, 299 U.S. 353, 365 [1937]; Terminiello v. Chicago, 337 U.S. 1, 4 [1949]), extends to "vigorous advocacy" no less than "abstract" disquisition. N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963). The "prized American privilege to speak one's mind, although not always with perfect good taste," applies at least to such speech "on all public institutions." Bridges v. California, 314 U.S. 252, 270 (1941). "To many this is, and always will be, folly; but we have staked upon it our all." L. Hand, J., in United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). That national commitment has been affirmed repeatedly by the decisions of this Court, which have recognized that the Amendment "must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow" (Bridges v. California, supra, at 263); and that its freedoms "need breathing space to survive". N.A.A.C.P. v. Button, supra, at 433.

It is clear that the political expression thus protected by the fundamental law is not delimited by any test of truth, to be administered by juries, courts, or by executive officials, not to speak of a test which puts the burden of establishing the truth upon the writer. Within this sphere of speech or publication, the constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." N.A.A.C.P. v. Button, supra, at 445. See also Speiser v. Randall, 357 U.S. 513, 526 (1958). The Amendment "pre-supposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection." United States v. Associated Press, supra, at 372. As Mr. Justice Roberts said in Cantwell v. Connecticut, 310 U.S. 296, 310 (1940): "In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy."

These affirmations are the premises today of any exploration of the scope of First Amendment freedom undertaken by this Court. It is implicit in those premises that speech or publication which is critical of governmental or official action may not be repressed upon the ground that it diminishes the reputation of the officers whose conduct it deplores or of the government of which they are a part.

The closest analogy in the decided cases is provided by those dealing with contempt. It is settled law that concern for the dignity and reputation of the bench does not support the punishment of criticism of the judge or his decision (Bridges v. California, supra, at 270), though the utterance contains "half-truths" and "misinformation" (Pennekamp v. Florida, supra, 328 U.S. at 342, 343, 345). Any such repression must be justified, if it is justified at all, by danger of obstruction of the course of justice; and such danger must be clear and present. See also Craig v. Harney, 331 U.S. 367, 373, 376, 389 (1947); Wood v. Georgia, 370 U.S. 375, 388, 389, 393 (1962). We do not see how comparable criticism of an elected, political official may consistently be punished as a libel on the ground that it diminishes his reputation. The supposition that judges are "men of fortitude, able to thrive in a hardy climate" (Craig v. Harney, supra, at 376) must apply to commissioners as well.

These decisions are compelling not alone for their authority but also for their recognition of the basic principle involved. If political criticism could be punished on the ground that it endangers the esteem with which its object is regarded, none safely could be uttered that was anything but praise.

The point was made in classic terms in Madison's Report on the Virginia Resolutions (4 Elliot's Debates, p. 575): ". . . it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures; because those who engage in such discussions, must expect and intend to excite these unfavorable sentiments, so far as they may be thought to be deserved. To prohibit the intent to excite those unfavorable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it, by free animadversions on their characters and conduct. . . . "

If criticism of official conduct may not be repressed upon the ground that it is false or that it tends to harm official reputation, the inadequacy of these separate grounds is not surmounted by their combination. This was the basic lesson of the great assault on the short-lived Sedition Act of 1798, which first crystallized a national awareness of the central meaning of the First Amendment. See, e.g., Levy, Legacy of Suppression (1960), p. 249 et. seq.; Smith, Freedom's Fetters (1956).

That Act declared it a crime "if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress . . ., or the President . . ., with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States. . . . " It specifically provided that the defendant might "give in evidence in his defence, the truth of the matter contained in the publication charged as a libel", a mitigation of the common law not achieved in England until Lord Campbell's Act in 1843. It also reserved the right of the jury to "determine the law and the fact, under the direction of the court, as in other cases", accepting the reform effected by Fox's Libel Act of 1792. Act of July 14, 1798, Secs. 2, 3; 1 Stat. 596. These qualifications were not deemed sufficient to defend the measure against a constitutional attack that won widespread support throughout the nation.

In the House debate upon the bill, John Nicholas of Virginia warned that a law ostensibly directed against falsehood "must be a very powerful restriction of the press, with respect to the publication of important truths." Men "would be deterred from printing anything which should be in the least offensive to a power which might so greatly harass them. They would not only refrain from publishing anything of the least questionable nature, but they would be afraid of publishing the truth, as, though true, it might not always be in their power to establish the truth to the satisfaction of a court of justice." 8 Annals of Congress 2144. Albert Gallatin delineated the same peril, arguing that "the proper weapon to combat error was truth, and that to resort to coercion and punishments in order to suppress writings attacking . . . measures . . ., was to confess that these could not be defended by any other means." Id. at 2164. Madison's Report reiterates these points, observing that some "degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 Elliot's Debates, p. 571. Summing up the position in words that have echoed through the years, he asked (ibid.): "Had Sedition Acts, forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing, at this day, under the infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies, groaning under a foreign yoke?"

Though the Sedition Act was never passed on by this Court, the verdict of history surely sustains the view that it was inconsistent with the First Amendment. Fines levied in its prosecutions were repaid by Act of Congress on this ground. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802 (fine imposed on Congressman Matthew Lyon refunded to his heirs). Its invalidity as "abridging the freedom of the press" was assumed by Calhoun, reporting to the Senate on February 4, 1836, as a matter "which no one now doubts." Report with Senate bill No. 122, 24th Cong., 1st Sess. p. 3. The same assumption has been made upon this Court. Holmes, J., dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919); Jackson, J., dissenting in Beauharnais v. Illinois, 343 U.S. 250, 288-289 (1952). See also Cooley, Constitutional Limitations (8th ed. 1927), p. 900; Chafee, Free Speech in the United States (1941), pp. 27-29. These assumptions reflect a broad consensus that, we have no doubt, is part of present law.

Respondent points to Jefferson's distinction between the right of Congress "to control the freedom of the press", which Jefferson of course denied, and that remaining in the States, which he admitted. Brief in Opposition, p. 19; see Dennis v. United States, 341 U.S. 494, 522, n. 4 (1961) (concurring opinion). That distinction lost its point with the adoption of the Fourteenth Amendment and the incorporation of the First Amendment freedoms in the "liberty" protected against state action. See, e.g., Bridges v. California, 314 U.S. 252, 268 (1941); Edwards v. South Carolina, 372 U.S. 229, 235 (1963). The view that there may be a difference in the stringency of the commands embodied in the two Amendments (Jackson, J., in Beauharnais v. Illinois, supra, 343 U.S. at 288; Harlan, J., concurring in Alberts v. California, 354 U.S. 476, 501, 503 [1957]) has not prevailed in the decisions of this Court. Even if it had, we think it plain that there could be no reasonable difference in the strength of their protection of expression against "frontal attack or suppression" (Harlan, J., dissenting in N.A.A.C.P. v. Button, supra, 371 U.S. at 455) of the kind with which we are concerned.

The rule of liability applied below is even more repressive in its function and effect than that prescribed by the Sedition Act. There is no requirement of an indictment and the case need not be proved beyond a reasonable doubt. It need not be shown, as the Sedition Act required, that the defendant's purpose was to bring the official "into contempt or disrepute"; a statement adjudged libelous per se is presumed to be "false and malicious", as the trial court instructed here (R. 824). There is no limitation to one punishment for one offensive statement, as would be required in a criminal proceeding. Respondent is only one of four commissioners, including one former incumbent, not to speak of the former Governor, who claim damages for the same statement. The damages the jury may award them if it deems the statement to apply to their official conduct are both general and punitive—the former for a "presumed" injury to reputation (R. 1160) and the latter "not alone to punish the wrongdoer, but as a deterrent to others similarly minded" (R. 1176). Such damages, moreover, are fettered by "no legal measure" of amount (R. 1177). It does not depreciate the stigma of a criminal conviction to assert that such a "civil" sanction is a more repressive measure than the type of sentence the Sedition Act permitted for the crime that it purported to define. Here, as in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), the "form of regulation . . . creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law."

It should be added that the principle of liability, as formulated by the Supreme Court of Alabama, goes even further than to punish statements critical of the official conduct of individual officials; it condemns the critique of government as such. This is accomplished by the declaration that it is sufficient to sustain the verdict that in "measuring the performance or deficiencies" of governmental bodies, "praise or criticism is usually attached to the official in complete control of the body" (R. 1157). On this thesis it becomes irrelevant that the official is not named or referred to in the publication. The most impersonal denunciation of an agency of government may be treated, in the discretion of the jury, as a defamation of the hierarchy of officials having such "complete control". A charge, for example, of "police brutality", instead of calling for investigation and report by supervising officers, gives them a cause of action against the complainant, putting him to proof that will persuade the jury of the truth of his assertion. Such a concept transforms the law of defamation from a method of protecting private reputation to a device for insulating government against attack.

When municipalities have claimed that they were libeled, they have met the answer that "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601 (1923). See also City of Albany v. Meyer, 99 Cal. App. 651 (1929). That answer applies as well to converting "libel on government" into libel of the officials of whom it must be composed. The First Amendment, no less than the Fifteenth, "nullifies sophisticated as well as simple-minded modes" of infringing the rights it guarantees. Lane v. Wilson, 307 U.S. 268, 275 (1939); Bates v. Little Rock, 361 U.S. 516, 523 (1960); Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 297 (1961).

If this were not the case, the daily dialogue of politics would become utterly impossible. That dialogue includes, as Mr. Justice Jackson said, the effort "to discredit and embarrass the Government of the day by spreading exaggerations and untruths and by inciting prejudice or unreasoning discontent, not even hesitating to injure the Nation's prestige among the family of nations." Communications Assn. v. Douds, 339 U.S. 382, 423 (1950) (opinion concurring and dissenting in part). Sound would soon give place to silence if officials in "complete control" of governmental agencies, instead of answering their critics, could resort to friendly juries to amerce them for their words. Mr. Justice Brewer, in calling for the "freest criticism" of this Court, employed a metaphor that is apposite: "The moving waters are full of life and health; only in the still water is stagnation and death." Government by Injunction, 15 Nat. Corp. Rep. 848, 849 (1898). The First Amendment guarantees that motion shall obtain.

Third: The absence of accommodation of conflicting interests For the reasons thus far stated we contend that an expression which is critical of governmental conduct is within the "core of constitutional freedom" (Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 689 [1959]) and may not be prohibited directly to protect the reputation of the government or its officials. A threat to such reputation is intrinsic to the function of such criticism. It is not, therefore, a "substantive evil" that a State has power to prevent by the suppression of the critical expression (cf., e.g., Schenck v. United States, 249 U.S. 47, 52 [1919]; Dennis v. United States, 341 U.S. 494, 506-507, 508-510 [1951]); nor does the protection of such reputation provide one of those "conflicting governmental interests" with which the protected freedom must "be reconciled" or to which it may validly be made to yield. Konigsberg v. State Bar, 366 U.S. 36, 50 n. 11 (1961); Gibson v. Florida Legislative Comm., 372 U.S. 539, 546 (1963).

If this submission overstates the scope of constitutional protection, it surely does so only in denying that there may be room for the accommodation of the two "conflicting interests" represented by official reputation and the freedom of political expression. But even under a standard that permits such accommodation, the rule by which this case was judged is inconsistent with the Constitution.

This conclusion follows because Alabama's law of libel per se, as applied to the criticism of officials as officials, does not reconcile the conflicting interests; it subordinates the First Amendment freedom wholly to protecting the official. It reflects no compromise of the competing values which we assume, arguendo, a State may validly attempt to balance. The interest favored by the First Amendment has been totally rejected, the opposing interest totally preferred. But here, as elsewhere in the area which is of concern to the First Amendment, the breadth of an abridgment "must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U.S. 479, 488 (1960); Speiser v. Randall, 357 U.S. 513 (1958); cf. Dean Milk Co. v. City of Madison, 340 U.S. 349, 354 (1951). If there is room for the protection of official reputation against criticism of official conduct, measures of liability far less destructive of the freedom of expression are available and adequate to serve that end.

The Court of Appeals for the District of Columbia adopted such a standard as its version of the common law of libel in Sweeney v. Patterson, 128 F. 2d 457 (1942), dismissing a complaint based on a statement charging a Congressman with anti-Semitism in opposing an appointment. Judge Edgerton, joined by Judges Miller and Vinson, noted that "the cases are in conflict" but declared that "in our view it is not actionable to publish erroneous and injurious statements of fact and injurious comment or opinion regarding the political conduct and views of public officials, so long as no charge of crime, corruption, gross immorality or gross incompetence is made and no special damage results. Such a publication is not ‘libelous per se.' " The position was placed upon the ground that "discussion will be discouraged, and the public interest in public knowledge of important facts will be poorly defended, if error subjects its author to a libel suit without even a showing of economic loss. Whatever is added to the field of libel is taken from the field of free debate." 128 F. 2d at 458. These are, we argue, grounds which are of constitutional dimension.

The same position was taken by Judge Clark, dissenting in Sweeney v. Schenectady Union Pub. Co., 122 F. 2d 288 (2d Cir. 1941), affirmed by an equal division of this Court. 316 U.S. 642 (1942). Deprecating the "dangerous . . . rationale of the decision that a comment leading an appreciable number of readers to hate or hold in contempt the public official commented on is libelous per se," he concluded that "the common-law requirement of proof of special damages gives" the commentator "the protection he needs, while at the same time it does prevent him from causing really serious injury and loss by false and unfair statements." 122 F. 2d at 291, 292.

Other courts have shown solicitude for the freedom to criticize the conduct of officials by requiring that the aggrieved official prove the critic's malice, abrogating the presumptions and strict liability that otherwise obtain. This approach draws a line between expression uttered with the purpose of harming the official by an accusation known to be unfounded, and expression which is merely wrong in fact, with denigrating implications. It thus makes an essential element of liability an intent similar to that which elsewhere has been deemed necessary to sustain a curb on utterance (see, e.g., Dennis v. United States, supra, at 516; Smith v. California, 361 U.S. 147 [1959]; cf. Wieman v. Updegraff, 344 U.S. 183 [1952]) and relieves the defendant of an evidential and persuasive burden of a kind that has been held to be excessive (Speiser v. Randall, 357 U.S. 513 [1958]), assimilating the criteria of libel law in both respects to those demanded by the Constitution in related fields.

Whether either of these mitigated rules of liability for criticism of official conduct, or both in combination, would conform to First Amendment standards, need not be determined in this case. The Alabama rule embraces neither mitigation. Neither would allow a judgment for respondent on the evidence on which he rests his claim.

Fourth: The relevancy of the official's privilege The arguments we have made are fortified by recollection of the privilege the law of libel grants to an official if he denigrates a private individual. In Barr v. Matteo, 360 U.S. 564, 575 (1959), this Court held the utterance of a federal official absolutely privileged if made "within the outer perimeter" of the official's duties. The States accord the same immunity to statements of their highest officers, though some differentiate their lowlier officials and qualify the privilege they enjoy, taking the position urged by the minority in the Matteo case. But all hold that all officials are protected unless actual malice can be proved.

The ground of the official privilege is said to be that the threat of damage suits would otherwise "inhibit the fearless, vigorous, and effective administration of policies of government", that, in the words of Judge Learned Hand (Gregoire v. Biddle, 177 F. 2d 579, 581 [2d Cir. 1949]), " ‘to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.' " Barr v. Matteo, supra, at 571. Mr. Justice Black, concurring, also related the official privilege to the sustenance of "an informed public opinion," dependent on "the freedom people have to applaud or to criticize the way public employees do their jobs, from the least to the most important." 360 U.S. at 577.

It would invert the scale of values vital to a free society if citizens discharging the "political duty" of "public discussion" (Brandeis, J., concurring in Whitney v. California, 274 U.S. 357, 375 [1927]) did not enjoy a fair equivalent of the immunity granted to officials as a necessary incident of the performance of official duties. The threat of liability for actionable statement is assuredly no less of a deterrent to the private individual (cf. Farmers Union v. WDAY, 360 U.S. 525, 530 [1959]), who, unlike the official, must rely upon his own resources for defense. And, as Madison observed in words that are remembered, "the censorial power is in the people over the Government, and not in the Government over the people." 4 Annals of Congress 934. See also Report on the Virginia Resolutions (1799), 4 Elliot's Debates (1876), pp. 575-576. "For the same reason that members of the Legislature, judges of the courts, and other persons engaged in certain fields of the public service or in the administration of justice are absolutely immune from actions, civil or criminal, for libel for words published in the discharge of such public duties, the individual citizen must be given a like privilege when he is acting in his sovereign capacity." City of Chicago v. Tribune Co., 307 Ill. 595, 610 (1923). The citizen acts in his "sovereign capacity" when he assumes to censure the officialdom.

Fifth: The protection of editorial advertisements Though the point was not taken by the court below, respondent argues that the fact that the statement was a paid advertisement deprives it of protection "as speech and press". Brief in Opposition, p. 19. The argument is wholly without merit.

The decisions invoked by respondent have no bearing on this case. Breard v. Alexandria, 341 U.S. 622 (1951), dealt with a regulation of the place, manner and circumstances of solicitation of subscriptions, not with the repression of a publication on the basis of its content, the ideas that are expressed. Valentine v. Christensen, 316 U.S. 52 (1942), involved a handbill soliciting the inspection of a submarine which its owner exhibited to visitors on payment of a stated fee. An ordinance requiring a permit for street distribution of commercial advertising was sustained as applied to him. It is merely cynical to urge that these determinations bar protection of the statement involved here.

The statement published by petitioner was not a "commercial" advertisement, as it is labeled by respondent. It was a recital of grievances and protest against claimed abuses dealing squarely with the major issue of our time. The fact that its authors sought to raise funds for defense of Dr. King and his embattled movement, far from forfeiting its constitutional protection, adds a reason why it falls within the freedom guaranteed. Cf. N.A.A.C.P. v. Button, supra, 371 U.S. at 429-431, 439-440. That petitioner received a payment for the publication is no less immaterial in this connection than is the fact that newspapers and books are sold. Smith v. California, 361 U.S. 147, 150 (1959); cf. Bantam Books Inc. v. Sullivan, 372 U.S. 58, 64, n. 6 (1963).

It is, of course, entirely true that the published statement did not represent or purport to represent assertions by petitioner, but rather by the sponsoring Committee and the individuals whose names appeared. But since the publisher is held no less responsible than are the sponsors, it must surely have the same protection they enjoy. Cf. Barrows v. Jackson, 346 U.S. 249 (1953). The willingness of newspapers to carry editorial advertisements is, moreover, an important method of promoting some equality of practical enjoyment of the benefits the First Amendment was intended to secure. Cf. Lovell v. Griffin, 303 U.S. 444 (1938); Schneider v. State, 308 U.S. 147 (1939); Talley v. California, 362 U.S. 60 (1960). The practice encourages "the widest possible dissemination of information from diverse and antagonistic sources", which the First Amendment deems "essential to the welfare of the public". Associated Press v. United States, 326 U.S. 1, 20 (1945). It has no lesser claim than any other mode of publication to the freedom that the Constitution guarantees.

II. Even if the rule of liability were valid on its face, the judgment rests on an invalid application.

Assuming, arguendo, that the freedom of the press may constitutionally be subordinated to protection of official reputation, as it would be by the rule of liability declared below, the rule is nonetheless invalid as applied, upon the record in this case. Nothing in the evidence supports a finding of the type of injury or threat to the respondent's reputation that, on the assumption stated, justifies repression of the publication. And even if there were a basis for discerning such a threat, there was no ground for the enormous judgment rendered on the verdict.

First: The scope of review These submissions fall within the settled scope of review by this Court when it is urged that a federal right has been denied "in substance and effect" by a state court. Norris v. Alabama, 294 U.S. 587, 590 (1935). If the denial rests on findings of fact which are in law determinative of the existence of the federal right, those findings must be adequately sustained by the evidence. Norris v. Alabama, supra; Fiske v. Kansas, 274 U.S. 380 (1927); Herndon v. Lowry, 301 U.S. 242, 259-261 (1937). If the denial rests on a conclusion or evaluation governing the application of controlling federal criteria, this Court will make its own appraisal of the record to determine if the facts established warrant the conclusion or evaluation made. Bridges v. California, 314 U.S. 252, 263, 271 (1941); Pennekamp v. Florida, 328 U.S. 331, 335, 345-346 (1946); Craig v. Harney, 331 U.S. 367, 373-374 (1947); Watts v. Indiana, 338 U.S. 49, 50 (1949) (plurality opinion); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 708 (1959) (concurring opinion); Wood v. Georgia, 370 U.S. 375, 386 (1962); Edwards v. South Carolina, 372 U.S. 229 (1963).

The decision below that the publication libeled the respondent does not, therefore, foreclose the questions whether, on the facts established by the record, it contained a statement "of and concerning" the complainant and, if so, whether such statement injured or jeopardized his reputation to an extent that, as a matter of the First Amendment, justified its punitive repression by the judgment rendered in the Circuit Court. Bridges v. California, supra. As in the contempt cases, this Court "must weigh the impact of the words against the protection given by the principles of the First Amendment. . . ." Pennekamp v. Florida, supra, at 349.

Second: The failure to establish injury or threat to respondent's reputation An appraisal of this record in these terms leaves no room for a determination that the publication sued on by respondent made a statement as to him, or that, if such a statement may be found by implication, it injured or jeopardized his reputation in a way that forfeits constitutional protection.

The publication did not name respondent or the Commission of which he is a member and it plainly was not meant as an attack on him or any other individual. Its protests and its targets were impersonal: "the police", the "state authorities", "the Southern violators". The finding that these collective generalities embodied an allusion to respondent's personal identity rests solely on the reference to "the police" and on his jurisdiction over that department. See pp. 7, 9, 10-14, 23-24, supra. But the police consisted of a force of 175 full-time officers, not to speak of a Chief responsible for the direction of their operations. See p. 10, supra. Courts have not hitherto permitted the mere designation of a group so large to be regarded as a reference to any member, least of all to one related to it only by an ultimate responsibility for its control or management. While this result may well involve an element of judgment as to policy, regardful of "the social interest in free press discussion of matters of general concern" (Service Parking Corp. v. Washington Times Co., 92 F. 2d at 505), it rests as well upon a common sense perception of the safety that numbers afford against a truly harmful denigration. The term "police" does not in fact mean all policemen. No more so does it mean the Mayor or Commissioner in charge.

This fatal weakness in the allegation that respondent was referred to by the publication was not cured by his own testimony or that of his six witnesses, four of whom first saw the publication in the office of his counsel. See p. 14, supra. We have detailed that testimony in the Statement (supra, pp. 11-14) and shall not repeat it in extenso here. It was at best opinion as to the interpretation of the writing. No witness offered evidence of an extrinsic fact bearing upon the meaning of an enigmatic phrase or the identity of someone mentioned by description. Cf., e.g., Hope v. Hearst Consolidated Publications, Inc., 294 F. 2d 681 (2d Cir. 1961). The weight of the testimony does not, therefore, transcend the ground of the opinions, which was no more than the bare ipse dixit that "police" meant the respondent, since he is Commissioner in charge.

Respondent's own conception of the meaning of the language went beyond this, to be sure. His view was that if one statement in a paragraph referred to the police, the other statements must be read to make the same allusion. Thus he considered that the declaration "They have bombed his home" meant that the bombing was the work of the police, because the paragraph contained the statement that "[t]hey have arrested him seven times"; and arrests are made by the police. See pp. 9, 11, supra.

We think it is enough to say that these "mere general asseverations" (Norris v. Alabama, 294 U.S. 587, 595 [1935]) were not evidence of what the publication said or what it reasonably could be held to mean. The problem, on this score, is not unlike that posed in Fiske v. Kansas, supra, where in determining the "situation presented" on the record, this Court read the crucial document itself to see if it possessed the attributes that had produced its condemnation (274 U.S. at 385). So read, this publication was a totally impersonal attack upon conditions, groups and institutions, not a personal assault of any kind.

Even if the statements that refer to "the police" could validly be taken to refer to the respondent, there was nothing in those statements that suffices to support the judgment. Assertions that were shown to have been accurate by the respondent's evidence cannot be relied on to establish injury to his official or his private reputation; if the truth hurts that surely is a hurt the First Amendment calls on him to bear. Hence, the whole claim of libel rests on two discrepancies between the material statements and the facts. Where the publication said that "truckloads" of armed police "ringed the Alabama State College Campus", the fact was that only "large numbers" of police "were deployed near the campus" upon three occasions, without ringing it on any. See p. 8, supra. And where the statement said "They have arrested him seven times", the fact was that Dr. King had been arrested only four times. Three of the arrests had occurred, moreover, before the respondent came to office some six months before the suit was filed. See pp. 9, 10, supra. That the exaggerations or inaccuracies in these statements cannot rationally be regarded as tending to injure the respondent's reputation is, we submit, entirely clear.

None of the other statements in the paragraphs relied on by respondent helps to make a colorable case. The advertisement was wrong in saying that 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." This was, indeed, the gravamen of the resentment that the publication seems to have inspired in Montgomery. See p. 9, supra. A majority of students did engage in the protest against the expulsions, but only a few refused to re-register, the dining hall was never "padlocked" and, perforce, there was no "attempt to starve" the students "into submission". See p. 8, supra. But none of these admittedly erroneous assertions had a thing to do with the police and even less with the respondent. He testified himself that "as far as the expulsion of students is concerned, that responsibility rests with the State Department of Education" (R. 716). If that was so, as it clearly was, it must have been no less the responsibility of the "State authorities", who are alone referred to in the offending sentence, to have padlocked the dining hall, as it alleged. There certainly is no suggestion, express or implied, that the imaginary padlock was attached by the police.

The statement that "the Southern violators have answered Dr. King's peaceful protests with intimidation and violence" was thought by the respondent to refer to himself only because "it is contained in a paragraph" which also referred to arrests (R. 717-718), a point on which his testimony is, to say the least, quite inexplicit, totally ignoring the fact that the paragraph did not even fix the time of the events recited or purport to place them in Montgomery. But whatever the respondent brought himself to think, or badgered Aaronson to say on cross-examination (see p. 17, supra), the statement cannot reasonably bear such a construction. The term "Southern violators of the Constitution" was a generic phrase employed in the advertisement to characterize all those whose alleged conduct gave rise to the grievances recited, whether private persons or officials. There was no suggestion that the individuals or groups were all the same, any more than that they were the same in Orangeburg as in Atlanta or Montgomery.

For the same reason, there was no basis for asserting that the statement that "they" bombed his home, assaulted him and charged him with perjury pointed to respondent as the antecedent of the pronoun, though the trial court pointedly permitted him to prove his innocence upon these points. See p. 10, supra. There was, to be sure, disputed evidence respecting a police assault but this related to an incident occurring long before respondent was elected a Commissioner (see pp. 9-10, supra). Beyond dispute, there were two bombings of King's home and he was charged with perjury. Indeed, to raise funds to defend him on that charge, which proved to be unfounded, was the main objective of the publication. See p. 6, supra.

It is, in sum, impossible in our view to see in this mélange of statements, notwithstanding the inaccuracies noted, any falsehood that related to respondent and portended injury to his official reputation. That he sustained no injury in fact was made entirely clear by his own evidence. The most that his witnesses could say was that they would have thought less kindly of him if they had believed the statements they considered critical of his official conduct. They did not in fact believe them and respondent did not fall at all in their esteem. In Alabama, no less than in Virginia, "the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community," as this Court said in N.A.A.C.P. v. Button, supra, 371 U.S. at 435. This publication was, upon its face, made on behalf of sympathizers with that movement. That such a statement could have jeopardized respondent's reputation anywhere he was known as an official must be regarded as a sheer illusion, not a finding that has any tangible support. In the real world, the words were utterly devoid of any "impact" that can weigh "against the principles of the First Amendment." Pennekamp v. Florida, supra, 328 U.S. at 349.

Respondent adduced as an aspect of his grievance that The Times made a retraction on demand of Governor Patterson but failed to do so in response to his demand. See pp. 18-22, supra. It is enough to say that if the statement was protected by the Constitution, as we contend it was, no obligation to retract could be imposed. Beyond this, however, there was an entirely reasonable basis for the distinction made. Petitioner selected Governor Patterson as "the proper representative" of Alabama to be formally assured that The Times did not intend the publication to reflect upon the State. It also took account of the fact that the Governor was chairman ex-officio of the State Board of Education; and that the "state authorities" had been referred to in the sentence claiming that the dining hall was padlocked. See pp. 21-22, supra. A distinction based upon those grounds was not invidious as to respondent. Far from exacerbating any supposed injury to him, as the court below believed (R. 1178), the retraction was a mollifying factor, weakening, if not erasing, the statement as to anyone who thought himself concerned.

Third: The magnitude of the verdict Even if we are wrong in urging that there is no basis on this record for a judgment for respondent, consistently with the protection of the First Amendment, the judgment of $500,000 is so shockingly excessive that it violates the Constitution.

That judgment was rendered, as we have shown, without any proof of injury or special damage. General damages simply were "presumed" and the jury was authorized to levy damages as punishment in its discretion. The trial court refused to charge that the jury should—or even could in its discretion—separately assess compensatory and punitive damages (R. 847, 864, Nos. 59 and 60). Since there was no rational foundation for presuming any damages at all, it is both legally correct and factually realistic to regard the entire verdict as a punitive award. Cf. Stromberg v. California, 283 U.S. 359, 367-368 (1931).

Viewing the publication as an offense to the respondent's reputation, as we do for purposes of argument, there was no rational relationship between the gravity of the offense and the size of the penalty imposed. Cf. Crowell-Collier Pub. Co. v. Caldwell, 170 F. 2d 941, 944, 945 (5th Cir. 1948). The court below declined, indeed, to weigh the elements of truth embodied in the publication in appraising the legitimacy of the verdict, contrary to its action in a recent case involving charges that a private individual was guilty of grave crimes. Johnson Publishing Co. v. Davis, 271 Ala. 474, 490 (1960). It chose instead to treat petitioner's assertion of belief in the substantial truth of the advertisement, so far as it might possibly have been related to respondent, as evidence of malice and support for the size of the award. See pp. 22, 24, supra.

The judgment is repugnant to the Constitution on these grounds. As Mr. Justice Brandeis said, concurring in Whitney v. California, 274 U.S. 357, 377 (1927), a "police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive." The proposition must apply with special force when the "harsh" remedy has been explicitly designed as a deterrent of expression. It is, indeed, the underlying basis of the principle that "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296, 304, 308 (1940). That principle has been applied by this Court steadily in recent years as measures burdening the freedoms of expression have been tested by "close analysis and critical judgment in the light of the particular circumstances" involved. Speiser v. Randall, 357 U.S. 513, 520 (1958). See also, e.g., Grosjean v. American Press Co., 297 U.S. 233 (1936); N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958); Smith v. California, 361 U.S. 147, 150-151 (1959); Bates v. Little Rock, 361 U.S. 516 (1960); Shelton v. Tucker, 364 U.S. 479 (1960); cf. Winters v. New York, 333 U.S. 507, 517 (1948).

Even when the crucial freedoms of the First Amendment have not been at stake, this Court has made clear that a penalty or money judgment may deprive of property without due process where it is "so extravagant in amount as to outrun the bounds of reason and result in sheer oppression." Life & Casualty Co. v. McCray, 291 U.S. 566, 571 (1934). A statutory penalty recoverable by a shipper has not been permitted to "work an arbitrary, unequal and oppressive result for the carrier which shocks the sense of fairness the Fourteenth Amendment was intended to satisfy. . . ." Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35, 44-45 (1922). See also Missouri Pacific Ry. Co. v. Tucker, 230 U.S. 340, 350-351 (1913); St. Louis, I. Mt. & So. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919). The idea of government under law is hardly older than the revulsion against "punishment out of all proportion to the offense. . . ." Douglas, J., concurring in Robinson v. California, 370 U.S. 660, 676 (1962). Such punishment was inflicted here, compounding the affront this judgment offers to the First Amendment.

It is no hyperbole to say that if a judgment of this size can be sustained upon such facts as these, its repressive influence will extend far beyond deterring such inaccuracies of assertion as have been established here. This is not a time—there never is a time—when it would serve the values enshrined in the Constitution to force the press to curtail its attention to the tensest issues that confront the country or to forego the dissemination of its publications in the areas where tension is extreme.

Respondent argued in his Brief in Opposition (pp. 25-26) that the Seventh Amendment bars this Court from considering the size of an award based on the verdict of a jury. The very authorities he cites make clear that any insulation of a verdict from review does not extend to situations where it involves or reflects error of law. See, e.g., Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 483-485 (1933); Chicago, B. & Q. Railroad v. Chicago, 166 U.S. 226, 246 (1897). See also Dimick v. Schiedt, 293 U.S. 474, 486 (1935); A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 366 (1962). Abridgment of the freedom of the press is surely such an error; and in determining if an abridgment has occurred, it makes no difference what branch or agency of the State has imposed the repression. N.A.A.C.P. v. Alabama, 357 U.S. 449, 463 (1958); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963). Indeed, the current of authority today regards the Seventh Amendment as inapplicable generally to appellate review of an excessive verdict, viewing the denial of relief below as an error of law. See, e.g., Southern Pac. Co. v. Guthrie, 186 F. 2d 926, 931 (9th Cir. 1951); Dagnello v. Long Island Rail Road Company, 289 F. 2d 797, 802 (2d Cir. 1961); cf. Affolder v. New York, Chicago & St. L. R. Co., 339 U.S. 96, 101 (1950); 6 Moore's, Federal Practice (2d ed. 1953), pp. 3827-3841. That general problem is not presented here because this excess contravenes the First Amendment.

III. The assumption of jurisdiction in this action by the Courts of Alabama contravenes the Constitution.

In sustaining the jurisdiction of the Circuit Court, the courts below held that petitioner made an involuntary general appearance in this action, subjecting its person to the jurisdiction and forfeiting the constitutional objections urged. They also rejected those objections on the merits, holding that petitioner's contacts with Alabama were sufficient to support State jurisdiction in this cause, based either on the service of process on McKee as a purported agent or on the substituted service on the Secretary of State. The decision is untenable on any ground.

First: The finding of a general appearance The motion to quash stated explicitly that petitioner appeared "solely and specially for the purpose of filing this its motion to quash attempted service of process in this cause and for no other purpose and without waiving service of process upon it and without making a general appearance and expressly limiting its special appearance to the purpose of quashing the attempted service upon it in this case . . ." (R. 39, 47). The grounds of the motion related to no other issue than that of petitioner's amenability to Alabama jurisdiction in this action as a New York corporation, neither qualified to do nor doing business in the State (R. 40-45, 47). The prayer for relief (R. 45-46) was not, however, limited to asking that the service or purported service of process be quashed and that the action be dismissed "for lack of jurisdiction of the person" of petitioner. It concluded with a further request for dismissal for "lack of jurisdiction of the subject matter of said action" (R. 46). That prayer, the courts held, converted the special appearance into a general appearance by operation of the law of Alabama (R. 49-51, 1151-1153).

This ruling lacks that "fair or substantial support" in prior state decisions that alone suffices to preclude this Court's review of federal contentions held to be defeated by a rule of state procedure. N.A.A.C.P. v. Alabama, 357 U.S. 449, 455-457 (1958). The governing principle of Alabama practice was declared by the court below in Ex parte Cullinan, 224 Ala. 263 (1931), holding that a request for "further time to answer or demur or file other motions", made by a party appearing specially, did not constitute a general appearance waiving constitutional objections later made by motion to quash. Noting that a non-resident's objection to the jurisdiction "is not a technical one . . . but is an assertion of a fundamental constitutional right", the court said the question involved was one "of consent or a voluntary submission to the jurisdiction of the court", an issue of "intent as evidenced by conduct", as to which "the intent and purpose of the context as a whole must control." 224 Ala. at 265, 266, 267. See also Ex parte Haisten, 227 Ala. 183, 187 (1933); cf. Sessoms Grocery Co. v. International Sugar Feed Company, 188 Ala. 232, 236 (1914); Terminal Oil Mill Co. v. Planters W. & G. Co., 197 Ala. 429, 431 (1916). For a waiver to be inferred or implied, when the defendant appears specially to move to set aside service of process, he must have taken some "action in relation to the case, disconnected with the motion, and which recognized the case as in court." Lampley v. Beavers, 25 Ala. 534, 535 (1854).

Petitioner's prayer for relief neither "recognized the case as in court" nor evidenced "consent or voluntary submission" to the jurisdiction. On the contrary, the papers made entirely clear that the sole ruling sought by the petitioner was that it was not amenable to Alabama's jurisdiction, as a New York corporation having no sufficient contact with the State to permit the assertion of jurisdiction in personam in an action based upon a publication in New York.

The doctrine of Ex parte Cullinan has not been qualified by any other holding of the court below before the instant case. It is, on the other hand, confirmed by cases in which a defendant appearing specially has joined a motion to quash for inadequate service with a plea in abatement challenging the venue of the action—without the suggestion that the plea amounted to a general appearance, though the question that it raised was characterized by the court below as one of "jurisdiction of the subject matter." St. Mary's Oil Engine Co. v. Jackson Ice and Fuel Co., 224 Ala. 152, 155, 157 (1931). See also Seaboard Air Line Ry. v. Hubbard, 142 Ala. 546, 548 (1904); Dozier Lumber Co. v. Smith-Isburg Lumber Co., 145 Ala. 317 (1905); cf. Johnson Publishing Co. v. Davis, 271 Ala. 474, 490 (1960); Ex parte Textile Workers Union of America, 249 Ala. 136, 142 (1947). Indeed, the precise equivalent of the prayer of the motion in this case was used in Harrub v. Hy-Trous Corporation, 249 Ala. 414, 416 (1947), without arousing an objection to adjudication of the issue as to jurisdiction of the person, raised on the special appearance. Beyond this, the late Judge Walter B. Jones, who presided in this case at Circuit, reproduced these very motion papers in the 1962 supplement to his treatise on Alabama practice, as a form of "Motion to Quash Service of Process by Foreign Corporation", without intimation that the prayer addressed to lack of jurisdiction of the subject matter waived the point respecting jurisdiction of the person. 3 Jones, Alabama Practice and Forms (1947) § 11207.1a (Supp. 1962).

There is, moreover, a persuasive reason why a foreign corporation challenging its amenability to suit in Alabama by substituted service on the Secretary of State should conceive of its objection as relating in a sense to jurisdiction of the subject matter of the action. The statute (Ala. Code of 1940, title 7, § 199[1]) itself speaks in terms of the sufficiency of service on the Secretary "to give to any of the courts of this state jurisdiction over the cause of action and over such non-resident defendant" (Appendix A, infra, p. 94). 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. Cf. St. Mary's Oil Engine Co. v. Jackson Ice & Fuel Co., supra, at 155; Boyd v. Warren Paint & Color Co., 254 Ala. 687, 691 (1950). The one conclusion is implicit in the other, not the product of a separate inquiry involving separate grounds.

Against all these indicia of Alabama law, ignored in the decisions of the courts below, the authorities relied on are quite simply totally irrelevant. None involved the alleged waiver of a constitutional objection. Except for Blankenship v. Blankenship, 263 Ala. 297, 303 (1955), where the court specifically declined to consider whether the appearance had been general or special, deeming the issue immaterial upon the question posed, none involved a special appearance. In Thompson v. Wilson, 224 Ala. 299 (1932), the defendant, a resident of Alabama, had not even purported to appear specially or attempted to question the court's jurisdiction of his person; his sole objection, taken by demurrer, was to the court's competence to deal with the subject matter of the action and to grant relief of the type asked. In Vaughan v. Vaughan, 267 Ala. 117, 120, 121 (1957), referred to by the Circuit Court, the movant failed to limit her appearance, leading the court to distinguish Ex parte Haisten, supra, on this ground. The additional decisions cited by respondent (Brief in Opposition, p. 36) are no less irrelevant. Neither Kyser v. American Surety Co., 213 Ala. 614 (1925) nor Aetna Insurance Co. v. Earnest, 215 Ala. 557 (1927) involved a special appearance or dealt with a challenge to service of process on constitutional grounds.

The California and North Carolina cases cited and quoted below (Olcese v. Justice's Court, 156 Cal. 82 [1909]; Roberts v. Superior Court, 30 Cal. App. 714 [1916]; Dailey Motor Co. v. Reaves, 184 N.C. 260 [1922]) and the similar decisions referred to in the annotation cited (25 A.L.R. 2d 838-842), to the extent that they treated a challenge to the jurisdiction of the subject matter as a general appearance, all involved situations where the defendant's objection was deemed to ask for relief inconsistent with the absence of jurisdiction of the person or to raise a separate "question whether, considering the nature of the cause of action asserted and the relief prayed by plaintiff, the court had power to adjudicate concerning the subject matter of the class of cases to which plaintiff's claim belonged." Davis v. O'Hara, 266 U.S. 314, 318 (1924); cf. Constantine v. Constantine, 261 Ala. 40, 42 (1954). That no such question was presented here the motion papers make entirely clear.

The situation is, indeed, precisely analogous to that presented in the Davis case. There the defendant, Director General of Railroads, appeared specially for the purpose of objecting to the jurisdiction of the district court "over the person of the defendant and over the subject matter of this action," on the ground that in the circumstances the Director was immune to suit in the county where action was brought. The Nebraska courts treated the reference to subject matter as a general appearance, waiving the immunity asserted. O'Hara v. Davis, 109 Neb. 615 (1923). This Court reversed, holding that there "was nothing in the moving papers to suggest that the Nebraska court had no jurisdiction to try and determine actions, founded on negligence, to recover damages for personal injuries suffered by railway employees while engaged in the performance of their work" (266 U.S. at 318). So here, there was nothing in the papers to suggest that the petitioner questioned the competence of the Circuit Court to "exercise original jurisdiction . . . of all actions for libel. . . ." (Ala. Code, title 13, § 126). The point was only that petitioner, because it is a foreign corporation having only a peripheral relationship to Alabama, was immune to jurisdiction in the action brought.

For the foregoing reasons, we submit that the decision that petitioner made an involuntary general appearance does not constitute an adequate state ground, barring consideration of the question whether Alabama has transcended the due process limitations on the territorial extension of the process of her courts. Cf. Wright v. Georgia, 373 U.S. 284 (1963); N.A.A.C.P. v. Alabama, supra; Staub v. City of Baxley, 355 U.S. 313 (1958); Davis v. Wechsler, 263 U.S. 22 (1923); Ward v. Love County, 253 U.S. 17 (1920).

Moreover, even if petitioner could validly be taken to have made an involuntary general appearance by the prayer for dismissal on the ground of lack of jurisdiction of the subject matter, that appearance would not bar the claim that in assuming jurisdiction of this action the state court has cast a burden upon interstate commerce forbidden by the Commerce Clause. That point is independent of the defendant's amenability to process, as this Court has explicitly decided in ruling that the issue remains open, if presented on "a seasonable motion", notwithstanding the presence of the corporation in the State or its appearance generally in the cause. Davis v. Farmers Cooperative Co., 262 U.S. 312 (1923); Michigan Central R.R. Co. v. Mix, 278 U.S. 492, 496 (1929). See also Denver & R.G.W.R. Co. v. Terte, 284 U.S. 284, 287 (1932) (attachment); Canadian Pacific Ry. Co. v. Sullivan, 126 F. 2d 433, 437 (1st Cir.), cert. denied, 316 U.S. 696 (1942) (agent designated to accept service); Zuber v. Pennsylvania R. Co., 82 F. Supp. 670, 674 (N. D. Ga. 1949); Pantswowe Zaklady Graviozne v. Automobile Ins. Co., 36 F. 2d 504 (S.D.N.Y. 1928) (commerce objection relates to jurisdiction of subject matter); 42 Harv. L. Rev. 1062, 1067 (1929); 43 id. 1156, 1157 (1930). For the same reason, we submit, an implied general appearance would not bar the litigation of petitioner's contention, seasonably urged upon the motion, that by taking jurisdiction in this action, the courts below denied due process by abridging freedom of the press; that also is an issue independent of the presence of petitioner in Alabama or its amenability to process of the court.

Second: The territorial limits of Due Process The courts below held that the sporadic newsgathering activities of correspondents and stringers of The Times in Alabama, the occasional solicitation and publication of advertising from Alabama sources and the minuscule shipment of the newspaper to subscribers and newsdealers in the State (supra, pp. 25-27) constitute sufficient Alabama contacts to permit the exercise of jurisdiction in this action, without transcending the territorial limits of due process.

This assertion of state power finds no sanction in this Court's decisions governing the reach of state authority, despite the relaxation in the limits of due process that we recognize to have occurred in recent years. Neither the "flexible standard" of International Shoe Co. v. Washington, 326 U.S. 310 (1945), as it was called in Hanson v. Denckla, 357 U.S. 235, 251 (1958), nor any of its later applications, sustains, in our submission, the extreme determination here.

It is plain, initially, that the petitioner's peripheral relationship to Alabama does not involve "continuous corporate operations" which are "so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities." International Shoe Co. v. Washington, supra, at 318. The case bears no resemblance to Perkins v. Benguet Mining Co., 342 U.S. 437 (1952), where the central base of operations of the corporation, including its top management, was in the State where suit was brought. It hardly can be argued that The New York Times has such a base in Alabama, where, according to this record, it enjoys 6/100ths of one per cent of its daily circulation and 2/10ths of one per cent of its Sunday circulation and where the sources of 46/1000ths of one per cent of its advertising revenue are found (R. 402, 444-445). The occasional visits of correspondents to the State to report on events of great interest to the nation places The Times in Alabama no more than in Ankara or Athens or New Delhi, where, of course, similar visits occur.

Hence, if the jurisdiction here asserted is sustained, it must be on the ground that the alleged cause of action is so "connected with" petitioner's "activities within the state" as to "make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there." International Shoe Co. v. Washington, supra, at 319, 317. See also Blount v. Peerless Chemicals (P.R.) Inc., 316 F. 2d 695, 700 (2d Cir. 1963); L. D. Reeder Contractors of Ariz. v. Higgins Industries, Inc., 265 F. 2d 768, 774-775 (9th Cir. 1959); Partin v. Michaels Art Bronze Co., 202 F. 2d 541, 545 (3d Cir. 1953) (concurring opinion).

There is, in our view, no such connection. Here, as in Hanson v. Denckla, supra, at 252, the "suit cannot be said to be one to enforce an obligation that arose from a privilege the defendant exercised in" the State. The liability alleged by the respondent certainly is not based on any activity of correspondents or stringers of The Times in covering the news in Alabama; and neither entering the State for such reporting, nor the composition nor the filing of reports rests on a privilege the State confers, given the rights safeguarded by the Constitution. Nor is this claim of liability connected with the occasional solicitation of advertisements in Alabama. The advertisement in suit was not solicited and did not reach The Times from anyone within the State. There remains, therefore, only the negligible circulation of The Times in Alabama on which to mount an argument that this suit relates to the exercise by the petitioner of "the privilege of conducting activities within" the State. International Shoe Co. v. Washington, supra, at 319.

We contend that this circulation did not involve the exercise of such a privilege. Copies of the paper were mailed to subscribers from New York or shipped from there to dealers who were purchasers, not agents of The Times. Such mailing and shipment in New York were not activity of the petitioner within the State of Alabama. See, e.g., Putnam v. Triangle Publications, Inc., 245 N. C. 432, 443 (1957); Schmidt v. Esquire, Inc., 210 F. 2d 908, 915, 916 (7th Cir. 1954), cert. denied, 348 U.S. 819 (1954); Street & Smith Publications, Inc. v. Spikes, 120 F. 2d 895, 897 (5th Cir.), cert. denied, 314 U.S. 653 (1941); Cannon v. Time, Inc., 115 F. 2d 423, 425 (4th Cir. 1940); Whitaker v. Macfadden Publications, Inc., 105 F. 2d 44, 45 (D. C. Cir. 1939); Buckley v. New York Times Co., 215 F. Supp. 893 (E. D. La. 1963); Gayle v. Magazine Management Co., 153 F. Supp. 861, 864 (M. D. Ala. 1957); Brewster v. Boston Herald-Traveler Corp., 141 F. Supp. 760, 761, 763 (D. Me. 1956); cf. Erlanger Mills v. Cohoes Fibre Mills, Inc., 239 F. 2d 502 (4th Cir. 1956); L. D. Reeder Contractors of Ariz. v. Higgins Industries, Inc., 265 F. 2d 768 (9th Cir. 1959); Trippe Manufacturing Co. v. Spencer Gifts, Inc., 270 F. 2d. 821, 823 (7th Cir. 1959). Whether Alabama may, upon these facts, declare the petitioner responsible for an Alabama "publication" by causing or contributing to the dissemination of those papers in the State is not, of course, the issue. That is a problem of the choice of law which is entirely distinct from the question here presented: whether by its shipment in and from New York petitioner "avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, supra, at 253. A State may be empowered to apply its law to a transaction upon grounds quite insufficient to establish "personal jurisdiction over a non-resident defendant", as Hanson (ibid.) makes clear. If this were not the case, each of the individual non-resident signers of the advertisement might also be amenable to Alabama's long-arm process, not to speak of every author of a publication sold within the State. See Calagaz v. Calhoon, 309 F. 2d 248, 254 (5th Cir. 1962). That would, indeed, entail the "demise of all restrictions on the personal jurisdiction of state courts", an eventuality that this Court has declared the trend of its decisions does not herald. Hanson v. Denckla, supra, at 251. The avoidance of that outcome calls, at least, for a sharp line between a liability based on an act performed within the State and liability based on an act without, which merely is averred to have an impact felt within. Surely the papers mailed to subscribers were delivered to them by petitioner when they were posted in New York. Cf. 1 Williston on Contracts (3d ed. 1957) § 81, p. 268. So, too, the delivery to carriers in New York for shipment to Alabama dealers, pursuant to their orders, can at most be said to have contributed to sales made by the dealers, but those sales were not the acts of the petitioner in Alabama. Cf. United States v. Smith, 173 Fed. 227, 232 (D. Ind. 1909). That is a matter to be judged in terms of a "practical conception" of the needs of our federalism, not "the ‘witty diversities' . . . of the law of sales." Holmes, J., in Rearick v. Pennsylvania, 203 U.S. 507, 512 (1906).

Assuming, however, that the shipment of The Times to Alabama may be deemed an act of the petitioner within that State, we still do not believe the jurisdiction here affirmed can be sustained. In International Shoe this Court made clear that the new standard there laid down was not "simply mechanical or quantitative" and that its application "must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure" (326 U.S. at 319). See also Hanson v. Denckla, supra, at 253. The opinion left no doubt that, as Judge Learned Hand had previously pointed out (Hutchinson v. Chase & Gilbert, 45 F. 2d 139, 141 [2d Cir. 1930]), an " ‘estimate of the inconveniences' which would result to the corporation from a trial away from its ‘home' or principal place of business is relevant in this connection" (326 U.S. at 317). Measured by this standard, a principle which would require, in effect, that almost every newspaper defend a libel suit in almost any jurisdiction of the country, however trivial its circulation there may be, would not further the "fair and orderly administration of the laws." The special "inconvenience" of the foreign publisher in libel actions brought in a community with which its ties are tenuous need not be elaborated. It was perspicuously noted by the court below in a landmark decision more than forty years ago, confining venue to the county where the newspaper is "primarily published". Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 45 (1921). This record surely makes the "inconvenience" clear.

We do not blink the fact that this submission focuses upon the hardship to the foreign publisher and that the plaintiff faces hardship too in litigating far from home. But if these conflicting interests call for balance in relation to the "orderly administration of the laws", there are substantial reasons why the interest of the publisher ought here to be preferred. In the first place, it is the forum which is seeking to extend its power beyond its own borders, carrying the burden of persuasion that the "territorial limitations on the power of the respective states" (Hanson v. Denckla, supra, at 251) are respected in the extension made. Secondly, the burden cast upon the publisher can only operate to thwart the object of the First Amendment by demanding the cessation of a circulation that entails at best no economic benefit—depriving the state residents who have an interest in the foreign publication of the opportunity to read. Thirdly, the plaintiff's grievance rests but fancifully on the insubstantial distribution of the publication in the forum, as distinguished from its major circulation out of state. If that grievance is to be assigned a locus, it is hardly where 394 copies were disseminated when the full 650,000 were regarded as relevant to the ad damnum (R. 2, 3, 601, 945) and a reason for sustaining the award (R. 1176, 1179). The difficulties presented by libel actions based on multi-state dissemination are notorious enough (see, e.g., Zuck v. Interstate Publishing Corp., 317 F. 2d 727, 733 [2d Cir. 1963]), without permitting suit against a foreign publisher in every jurisdiction where a copy of the allegedly offending publication has been sold. Finally, but not the least important, this is not an action merely seeking redress for an injury allegedly inflicted on the plaintiff. Its dominant object is to punish the defendant, as the damages demanded made quite clear. Hence, the considerations that would be decisive against "long-arm" jurisdiction in a criminal proceeding ought to be persuasive here.

The courts below thought the foregoing arguments against the jurisdiction answered by the decision of this Court in McGee v. International Life Ins. Co., 355 U.S. 220 (1957), where suit on an insurance contract was sustained in California against a non-resident insurer, based on the solicitation and the consummation of the contract in the State by mail. But that decision certainly does not control the disposition of this case. The contract executed in McGee constituted a continuing legal relationship between the insurer and the insured within the State, a relation which the States, with the concurrence of Congress (15 U.S.C. §§ 1011-1015, 59 Stat. 33), have long deemed to require special state regulation. Hanson v. Denckla, supra, at 252; Travelers Health Assn. v. Virginia, 339 U.S. 643 (1950). The liability asserted here derives from no such continuing relationship with someone in the State; and newspaper publication, including circulation (Lovell v. Griffin, 303 U.S. 444 [1938]; Talley v. California, 362 U.S. 60 [1960]), far from being exceptionally subject to state regulation, is zealously protected by the First Amendment.

Respondent also relies heavily on Scripto v. Carson, 362 U.S. 207 (1960) (Brief in Opposition, pp. 39, 41) but the reliance plainly is misplaced. That decision dealt with the minimum connection necessary to permit a State to impose on an out-of-state vendor the compensated duty to collect a use tax due from purchasers on property shipped to them in the State. It held the duty validly imposed where sales were solicited within the State, deeming General Trading Co. v. State Tax Comm'n., 322 U.S. 335 (1944) controlling though the salesmen were "independent contractors" rather than employees of the vendor. No issue of judicial jurisdiction was involved. This "familiar and sanctioned device" (322 U.S. at 338) of making the distributor the tax collector for the State he exploits as a market plainly casts no burden comparable to the exercise of jurisdiction in personam, with the implications such a jurisdiction has. If the problems were analogous, the relevant decision here would be Miller Bros. Co. v. Maryland, 347 U.S. 340 (1954), where the imposition of the duty was invalidated because there was "no invasion or exploitation of the consumer market" (id. at 347) by the out-of-state vendor. The New York Times does not solicit Alabama circulation (supra, p. 27); it merely satisfies the very small, local demand.

Viewed in these terms, a different question might be posed if it were shown that the petitioner engaged in activities of substance in the forum state, designed to build its circulation there. Cf. Mr. Justice Black, dissenting in part in Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 667, 670 (1953); see also WSAZ, Inc. v. Lyons, 254 F. 2d 242 (6th Cir. 1958). That would involve a possible analogy to other situations where a foreign enterprise exploits the forum as a market and the cause of action is connected with such effort (Hanson v. Denckla, supra, at 251-252), though the punitive nature of the action and the special situation of the press must still be weighed. It also would confine the possibilities of litigation to places where the foreign publisher has had the opportunity to build some local standing with the public. No such activities, effort or opportunity existed here.

In a federated nation such as ours, the power of the States to exert jurisdiction over men and institutions not within their borders must be subject to reciprocal restraints on each in the interest of all. Cf. L. Hand, J., in Kilpatrick v. Texas & P. Ry. Co., p. 81, footnote, supra. The need for such restraints is emphasized in our system by the full faith and credit clause of the Constitution. If Alabama stood alone it would be impotent in such a case as this to render any judgment that would be of practical importance to petitioner. What makes this judgment vitally important is the fact that if it is affirmed it is enforceable as such in States where the petitioner's resources are located. Thus jurisdictional delineations must be based on grounds that command general assent throughout the Union; otherwise full faith and credit will become a burden that the system cannot bear. No standard worthy of such general assent sustains the assumption of jurisdiction in this cause.

Third: The burden on commerce In forcing the petitioner to its defense of this case in Alabama, the state court has done more than exceed its territorial jurisdiction. It has also cast a burden on interstate commerce that the commerce clause forbids.

It takes no gift of prophecy to know that if negligible state circulation of a paper published in another state suffices to establish jurisdiction of a suit for libel, threatening the type of judgment rendered here, such distribution interstate cannot continue. So, too, if the interstate movement of correspondents provides a factor tending to sustain such jurisdiction, as the court below declared, a strong barrier to such movement has been erected. Both the free flow of interstate communications and the mobility of individuals are national interests of supreme importance. In the silence of Congress, their protection against burdensome state action, unsupported by an overriding local interest, is the duty of the courts. Fisher's Blend Station v. Tax Commission, 297 U.S. 650, 654-655 (1936); Edwards v. California, 314 U.S. 160 (1941). In neither area may a State "gain a momentary respite from the pressure of events by the simple expedient of shutting its gates to the outside world." Id. at 173. An attempt to isolate a State from strangers or their publications is no less offensive to the commerce clause than the attempts at economic isolation which have been repeatedly condemned. See, e.g., Minnesota v. Barber, 136 U.S. 313 (1890); Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 527 (1935); H. P. Hood & Sons v. DuMond, 336 U.S. 525 (1949); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).

This Court has not hitherto considered a case where the mere assumption of jurisdiction in a transitory action threatened an embargo of this kind. It has, however, held that the subjection of a carrier to suit, whether in personam or in rem, in a jurisdiction where it is engaged in insubstantial corporate activities may impose an excessive burden upon commerce, because of the special inconvenience and expense incident to the defense of litigation there. Davis v. Farmers Co-operative Co., 262 U.S. 312 (1923); Atchison, Topeka & Santa Fe Ry. v. Wells, 265 U.S. 101 (1924); Michigan Central R.R. Co. v. Mix, 278 U.S. 492 (1929); Denver & R. G. W. R. Co. v. Terte, 284 U.S. 284, 287 (1932); cf. International Milling Co. v. Columbia Transportation Co., 292 U.S. 511 (1934). See also Sioux Remedy Co. v. Cope, 235 U.S. 197 (1914); Erlanger Mills v. Cohoes Fibre Mills, Inc., 239 F. 2d 502 (4th Cir. 1956); Overstreet v. Canadian Pacific Airlines, 152 F. Supp. 838 (S.D.N.Y. 1957). The burdens deemed excessive in those cases were as nothing compared to the burden imposed here, for which, as we have shown above (pp. 83-84), there is no overriding local interest.

Respondent argued in his Brief in Opposition (p. 42) that the cases holding that jurisdiction may be an excessive burden became moribund with the pronouncement in International Shoe. His contention finds no support in that opinion and ignores Southern Pacific Co. v. Arizona, 325 U.S. 761, 781 (1945), where a few months before the Shoe decision Chief Justice Stone alluded to the Davis and like cases, otherwise affirming the protective principle for which they stand. The need for that protective principle has, indeed, been increased by the progressive relaxation in due process standards. For the considerations leading to that relaxation have to do with the appropriate relationship between a State and foreign enterprise and individuals. They are entirely inapposite in the situation where an interest of the Nation is impaired.

Fourth: The freedom of the press We have argued that the jurisdictional determination violates the Constitution, judged by standards that apply to enterprise in general under the constitutional provisions limiting state power in the interest of our federalism as a whole. We need not rest, however, on those standards. Newsgathering and circulation are both aspects of the freedom of the press, safeguarded by the Constitution. Neither can continue unimpaired if they subject the publisher to foreign jurisdiction on the grounds and of the scope asserted here. The decision is, accordingly, repugnant to the First Amendment.

This Court has often held state action inconsistent with the First Amendment, as embodied in the Fourteenth, when it has "the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it" (Smith v. California, 361 U.S. 147, 151 [1959])—though the action is otherwise consistent with the Constitution. Scienter is not generally deemed a constitutional prerequisite to criminal conviction, but a measure of liability for the possession of obscene publications was invalidated on this ground in Smith because of its potential impact on the freedom of booksellers. The allocation of burden of proof in establishing a right to tax-exemption fell in Speiser v. Randall, 357 U.S. 513 (1958) because it was considered in the circumstances to "result in a deterrence of speech which the Constitution makes free." Id. at 526. Compulsory disclosure requires a showing of a more compelling state interest when it tends to inhibit freedom of association than in other situations where disclosure may be forced (see, e.g., Gibson v. Florida Legislative Comm., 372 U.S. 539 [1963]; Talley v. California, 362 U.S. 60 [1960]); and its extent may be more limited. Shelton v. Tucker, 364 U.S. 479 (1960). Regulation of the legal profession that would raise no question as applied to the solicitation of commercial practice must comply with stricter standards insofar as it inhibits association for the vindication of fundamental rights. N.A.A.C.P. v. Button, 371 U.S. 415 (1963).

The principle involved in these familiar illustrations plainly applies here. If a court may validly take jurisdiction of a libel action on the basis of sporadic newsgathering by correspondents and trivial circulation of the publication in the State, it can and will do so not only when the plaintiff has a valid cause of action but also when the claim is as unfounded and abusive as the claim presented here. The burden of defense in a community with which the publication has no meaningful connection and the risk of enormous punitive awards by hostile juries cannot be faced with equanimity by any publisher. The inevitable consequence must be the discontinuance of the activities contributing to the assumption of the jurisdiction. The interest of a State in affording its residents the most convenient forum for the institution of such actions cannot justify this adverse impact on the freedom that the First Amendment has explicitly secured. See also pp. 83-84, supra. The occasional solicitation of advertising in the State, being wholly unrelated to respondent's cause of action, does not augment the interest of the State in providing the forum challenged here.

CONCLUSION

For the foregoing reasons, the judgment of the Supreme Court of Alabama should be reversed, with direction to dismiss the action.

Respectfully submitted,

Louis M. Loeb

T. Eric Embry

Marvin E. Frankel

Ronald S. Diana

Doris Wechsler

Lord, Day & Lord

Beddow, Embry & Beddow

Of Counsel

Herbert Brownell

Thomas F. Daly

Herbert Wechsler

Attorneys for Petitioner

The New York Times Company

APPENDIX A

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Constitution of the United States

Article I, Section 8:

The Congress shall have power * * *

To regulate Commerce with foreign Nations, and among the several States * * *.

* * * * *

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

* * * * *

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Alabama Code of 1940 Title 7

188. How corporation served When an action at law is against a corporation the summons may be executed by the delivery of a copy of the summons and complaint to the president, or other head thereof, secretary, cashier, station agent or any other agent thereof. The return of the officer executing the summons that the person to whom delivered is the agent of the corporation shall be prima facie evidence of such fact and authorize judgment by default or otherwise without further proof of such agency and this fact need not be recited in the judgment entry. (1915, p. 607.)

* * * * *

199(1). Service on non-resident doing business or performing work or service in state Any non-resident person, firm, partnership, general or limited, or any corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall do any business or perform any character of work or service in this state shall, by the doing of such business or the performing of such work, or services, be deemed to have appointed the secretary of state, or his successor or successors in office, to be the true and lawful attorney or agent of such non-resident, upon whom process may be served [in any action accrued or accruing from the doing of such business, or the

performing of such work, or service, or as an incident thereto by any such non-resident, or his, its or their agent, servant or employee.] Service of such process shall be made by serving three copies of the process on the said secretary of state, and such service shall be sufficient service upon the said non-resident of the state of Alabama, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the secretary of the state to the defendant at his last known address, which shall be stated in the affidavit of the plaintiff or complainant hereinafter mentioned, marked "Deliver to Addressee Only" and "Return Receipt Requested", and provided further that such return receipt shall be received by the secretary of state purporting to have been signed by said non-resident, or the secretary of state shall be advised by the postal authority that delivery of said registered mail was refused by said non-resident; and the date on which the secretary of state receives said return receipt, or advice by the postal authority that delivery of said registered mail was refused, shall be treated and considered as the date of service of process on said non-resident. The secretary of state shall make an affidavit as to the service of said process on him, and as to his mailing a copy of the same and notice of such service to the non-resident, and as to the receipt of said return receipt, or advice of the refusal of said registered mail, and the respective dates thereof, and shall attach said affidavit, return receipt, or advice from the postal authority, to a copy of the process and shall return the same to the clerk or register who issued the same, and all of the same shall be filed in the cause by the clerk or register. The party to a cause filed or pending, or his agent or attorney, desiring to obtain service upon a non-resident under the provisions of this section shall make and file in the cause, an affidavit stating facts showing that this section is applicable, and stating the residence and last known post-office address of the non-resident, and the clerk or register of the court in which the action is filed shall attach a copy of the affidavit to the writ or process, and a copy of the affidavit to each copy of the writ or process, and forward the original writ or process and three copies thereof to the sheriff of Montgomery county for service on the secretary of state and it shall be the duty of the sheriff to serve the same on the secretary of state and to make due return of such service. The court in which the cause is pending may order such continuance of the cause as may be necessary to afford the defendant or defendants reasonable opportunity to make defense. Any person who was a resident of this state at the time of the doing of business, or performing work or service in this state, but who is a non-resident at the time of the pendency of a cause involving the doing of said business or performance of said work or service, and any corporation which was qualified to do business in this state at the time of doing business herein and which is not qualified at the time of the pendency of a cause involving the doing of such business, shall be deemed a non-resident within the meaning of this section, and service of process under such circumstances may be had as herein provided.

The secretary of state of the state of Alabama, or his successor in office, may give such non-resident defendant notice of such service upon the secretary of state of the state of Alabama in lieu of the notice of service hereinabove provided to be given, by registered mail, in the following manner: By causing or having a notice of such service and a copy of the process served upon such non-resident defendant, if found within the state of Alabama, by any officer duly qualified to serve legal process within the state of Alabama, or if such non-resident defendant is found without the state of Alabama, by a sheriff, deputy sheriff, or United States marshal, or deputy United States marshal, or any duly constituted public officer qualified to serve like process in the state of the jurisdiction where such non-resident defendant is found; and the officer's return showing such service and when and where made, which shall be under oath, shall be filed in the office of the clerk or register of the court wherein such action is pending.

Service of summons when obtained upon any such non-resident as above provided for the service of process herein shall be deemed sufficient service of summons and process to give to any of the courts of this state jurisdiction over the cause of action and over such non-resident defendant, or defendants, and shall warrant and authorize personal judgment against such non-resident defendant, or defendants, in the event that the plaintiff prevails in the action.

The secretary of state shall refuse to receive and file or serve any process, pleading, or paper under this section unless three copies thereof are supplied to the secretary of state and a fee of three dollars is paid to the secretary of state; and no service shall be perfected hereunder unless there is on file in the office of the secretary of state a certificate or statement under oath by the plaintiff or his attorney that the provisions of this section are applicable to the case. (1949, p. 154, §§ 1, 2, appvd. June 23, 1949; 1951, p. 976, appvd. Aug. 28, 1951; 1953, p. 347, § 1, appvd. Aug. 5, 1953.)

Back to the Table of Contents

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

• I.Merits
• II.Jurisdiction
  • General Appearance
  • Validity of Service of Process on The New York Times

Summary of Argument

Argument

• I.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
• II.There Is No Ground for Reviewing a Jury Determination That the Advertisement Was "Of and Concerning" the Plaintiff
• III.This Case Provides No Occasion for Excursions From This Record and From Accepted Constitutional Standards
• IV.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." 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 Statute(R. 49-57).

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 co-defendants 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.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" in the course of an "impersonal"discussion "plainly" not meant as an attack on any individual, respondent will state this case.

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 truck-loads armed with shotguns and tear gas; 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.

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). 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.

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.

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, 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).

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).

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. 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."

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 ter ror"—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.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."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."A 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.' "

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.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.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."

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."

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: "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 them resulted in a holding that certain lower echelon federal executive personnel had an absolute privilege. The third 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."

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. 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."

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, 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."

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.

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."

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.

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."

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. 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."

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.

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.

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. 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."

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.

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. . . .' "

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.

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."

Similar principles permeated the judicial philosophy of Judge Learned Hand: "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."

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.

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). 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 intelligence 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.

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.

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.

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.

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".

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; 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. 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. "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."

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."

IV. The Times was properly before the Alabama courts.

1. Because both courts below held that the Times had made a general appearance, 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.

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.

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; 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; a third involved a limited attack on "the court jurisdiction over the person of defendant;" one did not even consider the question, since apparently neither the trial judge nor the parties had noticed it; one discussed the proper way to plead misnomer; and in the last two the defendants conceded jurisdiction of the person.

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, and the majority of the jurisdictions of this country have recognized the binding effect of this rule.

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. Nor is the Alabama rule—in accord with the majority one—an "arid ritual of meaningless form." 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.

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.

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 Publishing Company, 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".

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. 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).

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 statute 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.

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.

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.

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. 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 alter-native, 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."

Back to the Table of Contents

In the Supreme Court of the United States

October Term, 1963

No. 40

Ralph D. Abernathy,

Fred L. Shuttlesworth,

S. S. Seay, Sr., and

J. F. Lowery, Petitioners,

v.

L. B. Sullivan, Respondent

On Writ of Certiorari to the Supreme Court of Alabama

Brief for the Petitioners

Harry H. Wachtel,

Samuel R. Pierce Jr.,

Joseph B. Russell,

David N. Brainin,

Stephen J. Jelin,

Clarence B. Jones,

David G. Lubell,

Charles B. Markham,

Wachtel & Michaelson,

Battle, Fowler, Stokes & Kheel,

Lubell, Lubell & Jones,

Of Counsel.

Of Counsel.

I. H. Wachtel,

Charles S. Conley,

Benjamin Spiegel,

Raymond S. Harris,

Attorneys for Petitioners.

1100 - 17th St., N.W.

Washington, D.C. 20036

Index

Opinions Below

Jurisdiction

Questions Presented

Constitutional and Statutory Provisions Involved

Statement

• The Nature of the Publication
• The Evidence Concerning Publication
• The Alleged Libel
• Biased Trial and Judgment

Summary of Argument

Argument

• I.This court must nullify schemes which encroach on freedom of utterance under the guise of punishing libel
• II.The proceedings below constitute prohibited state action and, together with the concepts of libel enunciated by the Alabama courts, unconstitutionally abridge freedoms of press, speech, assembly and association
  • A.Prohibited state action is clearly involved
  • B.The First and Fourteenth Amendments protect criticism and discussion of the political conduct and actions of public officials
  • C.Vagueness and indefiniteness of standards require reversal of the judgment below
  • D.Respondent's erroneous contentions as to the defense of truth
• III.The judgment and proceedings below violate petitioners' First and Fourteenth Amendment rights in that the record is devoid of evidence of authorization or publication of the ad in suit, and they require of total strangers to the publication expression of disbelief and disavowal
  • A.Lack of evidence as denial of due process of law
  • B.Prejudicial rulings below concerning "ratification"; silence as consent
  • C.Compulsory disclosure of belief
• IV.Petitioners' rights to Due Process and Equal Protection of Law and to a fair and impartial trial as guaranteed by the Fourteenth Amendment were flagrantly violated and abridged by the proceedings below
  • Jurisdiction to redress flagrant violations of fundamental constitutional rights "is not to be defeated under the name of local practice"

Conclusion

Appendix A

Appendix B

Petitioners Abernathy, Shuttlesworth, Seay, and Lowery submit this brief for reversal of the judgment of the Supreme Court of Alabama entered on August 30, 1962, which affirmed a $500,000 libel judgment for punitive damages entered on November 3, 1960 in the Circuit Court of Montgomery County, Alabama against petitioners and The New York Times Company, their co-defendant, in a suit for alleged libel, based on an advertisement (R. 6, 1925; reproduced in Appendix A infra, p. 63) printed in The New York Times on March 29, 1960, appealing for contributions to aid the civil rights movement in the South.

OPINIONS BELOW

The Trial Court (Circuit Court of Montgomery County) did not write an opinion. Its judgment is printed at R. 862. The Opinion of the Alabama Supreme Court (R. 1139) affirming said judgment is reported at 273 Ala. 656.

JURISDICTION

The judgment of the Supreme Court of Alabama was entered on August 30, 1962 (R. 1180). The petition for writ of certiorari was filed on November 21, 1962 and was granted on January 7, 1963, 371 U.S. 946 (R. 1194). The jurisdiction of this Court rests upon 28 U. S. C. § 1257(3).

QUESTIONS PRESENTED

1.May the State of Alabama, under the guise of civil libel prosecutions, suppress criticism of the political conduct of unnamed public officials, consistently with the guaranteed freedoms of speech, press, assembly and association of the First and Fourteenth Amendments?

2.Were petitioners' rights to due process of law, as guaranteed by the Fourteenth Amendment, violated by a $500,000 punitive judgment against them upon a record devoid of evidence of authorization, consent, publication or malice on their part or of pecuniary damage to respondent?

3.Does the rule of law adopted by the State of Alabama below, requiring total strangers to the challenged publication, to procure and study it and, under pain of $500,000 punitive damages, "retract" any claimed libel therein, impose an arbitrary and onerous burden which unconstitutionally infringes petitioners' rights under the First and Fourteenth Amendments?

4.Were the rights of Negro petitioners to equal protection, due process of law and fair and impartial trial under the Fourteenth Amendment violated by the trial of the suit brought against them by a white public official of Montgomery (i) in a segregated Courtroom, rife with racial bias and community hostility, (ii) before an all-white jury (from which Negro citizens were intentionally and systematically excluded), and (iii) before a trial judge, not properly qualified, who has stated from the Bench that the Fourteenth Amendment is inapplicable in Alabama Courts, which are governed by "white man's justice"?

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Constitutional provisions involved are the First, Fourteenth and Fifteenth Amendments to the United States Constitution which are set forth in Appendix B, infra, pp. 65-66.

The Statutes involved are Title 7, Sections 913-16 of the Code of Alabama (i.e., the Alabama "Retraction" Statute) and Title 14, Sections 347 and 350 thereof (i.e., the Alabama "Criminal Libel" Statute) which read as follows:

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 14, Section 347 of the Code of Alabama: "LIBEL.—Any person who publishes a libel of another which may tend to provoke a breach of the peace, shall be punished, on conviction, by fine and imprisonment in the county jail, or hard labor for the county; the fine not to exceed in any case five hundred dollars, and the imprisonment or hard labor not to exceed six months."

Title 14, Section 350 of the Code of Alabama: "DEFAMATION.—Any person who writes, prints, or speaks of and concerning any woman, falsely imputing to her a want of chastity; and any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude, shall, on conviction, be punished by fine not exceeding five hundred dollars, and imprisonment in the county jail, or sentenced to hard labor for the county, not exceeding six months; one or both, at the discretion of the jury.

STATEMENT

Numerous recent decisions of this Court have focused sharply on the intense nationwide efforts to secure the constitutional rights of Negroes, and on the numerous unconstitutional acts committed in various Southern states to frustrate these efforts. The four petitioners herein are Negro ministers (resident in Alabama at all relevant times) and religious and spiritual leaders of the movement to secure civil rights in Alabama and throughout the South.

1. The nature of the publication

To enlist public support and raise funds for the legal defense of Dr. Martin Luther King, Jr. (who shortly before had been indicted in Alabama for perjury) and in aid of the non-violent demonstrations against racial segregation, a New York group called "The Committee to Defend Martin Luther King and the Struggle for Freedom in the South" ("Committee" hereinafter), with which petitioners had no connection, caused to be printed and published in The New York Times ("The Times" hereinafter) on March 29, 1960, an advertisement entitled: "Heed Their Rising Voices" (R. 6; Pl. Ex. 347 at R. 1925, reproduced in full in Appendix "A" p. 63, infra). The advertisement commented on the activities of unnamed governmental authorities, in cities in a number of Southern states, designed to stifle the then-current protest demonstrations against segregation by students in various Southern institutions (including Alabama State College at Montgomery). In commenting on such activities, the advertisement used the broad, generic term "Southern violators of the Constitution".

The ad referred to the harassments to which Rev. King had been subjected, including arrests, imprisonment, the bombings of his home, and the then-pending perjury indictment, and concluded with an appeal for contributions to be sent to the Committee's office in New York in support of Dr. King's defense, the desegregation movement, and the voter registration drive in the South.

Under the text of the appeal appeared the names of some sixty eminent sponsors (including Mrs. Eleanor Roosevelt, Drs. Harry Emerson Fosdick, Mordecai Johnson, Alan Knight Chalmers and Algernon Black, and Messrs. Raymond Pace Alexander, Elmer Rice and Norman Thomas).

Below the list of sponsors appeared the caption "We in the south who are struggling daily for dignity and freedom warmly endorse this appeal", under which caption were printed the names of eighteen (18) ministers from various Southern states, including the four petitioners.

The appeal concludes with the following plea for funds: "We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights."We urge you to join hands with our fellow Americans in the South by supporting, with your dollars, this Combined Appeal for all three needs—the defense of Martin Luther King—the support of the embattled stu dents—and the struggle for the right-to-vote."

2. The evidence concerning publication

The undisputed record facts demonstrate that the names of petitioners were added to the advertisement without consultation with them and without their authorization or consent (R. 788-90; 792-4; 797-8; 801-2; 806-10; 824-5; 1175). Indeed, the record is clear that their first knowledge of The Times ad came when they received in the mail respondent Sullivan's identical letters which had been posted on or about April 8, 1960, and which were admittedly misdated "March 8, 1960" (Pl. Exs. 355-8, R. 1962-7). Moreover, these letters did not contain a copy of the ad, but merely quoted out of context the two paragraphs on which Sullivan based his complaint, and demanded that each petitioner "publish in as prominent and public a manner" as The Times ad, "a full and fair retraction of the entire false and defamatory matter . . ." (R. 1962-8). Petitioners could not possibly comply with this demand; and, before they could consult counsel or even receive appropriate advice in regard thereto, suit was instituted by respondent on April 19, 1960 (R. 789; 793; 798; 801-3).

The undisputed record facts further show a complete lack of connection between petitioners and the publication of the advertisement. The typescript was submitted to The Times by one John Murray (R. 732), with a space order from The Union Advertising Service (R. 736). Names of sponsors (the Committee) were typed at the foot (R. 739). Accompanying (or submitted shortly following) the typescript was a letter, signed by A. Philip Randolph, (R. 739, 756-757) purporting to authorize the use of the names of the "signed members of the Committee" as sponsors (R. 1992). It is not disputed that petitioners' names did not appear on the manuscript as submitted (R. 806-7). Petitioners' names were subsequently placed on the advertisement by one Bayard Rustin, on his own motion, without any consultation with petitioners as shown by the undisputed evidence (R. 808-810) and the findings of the Court below (R. 1174-5). No representative of The Times ever asked petitioners whether they had consented to this use of their names (R. 754-5, 770, 790, 793, 797-8, 802).

None of the petitioners saw the full text of the advertisement prior to the commencement on April 19, 1960 of respondent Sullivan's suit (R. 789, 793, 798, 801); petitioners' first notice of The Times ad (and only of the language complained of) came from Sullivan's aforementioned misdated letters mailed on or about April 8, 1960 (R. 789, 793, 798, 802). Petitioners each wholly denied any knowledge of the ad prior to its publication, any consent to the use of their names and any responsibility for its publication (R. 788-90, 792-4, 795, 797-8, 801-2). Respondent in no way disputed these record facts which are confirmed in the opinion of the Court below (R. 1174-5).

3. The alleged libel

The Times ad in suit, without identifying or naming any particular individual or fixing any particular time period, refers to various incidents of claimed repression in numerous cities throughout the South, commencing with "Orangeburg, South Carolina" and continuing on to "Montgomery, Alabama" and "Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Charlotte and a host of other cities in the South. . . ."

On October 5, 1959, respondent Sullivan became one of the City Commissioners of Montgomery, Alabama (R. 694). Nowhere in The Times ad in suit was respondent Sullivan or any other southern official referred to by name or office. Many of the repressive actions in Montgomery, referred to in the ad, occurred prior to Sullivan's term of office, as Sullivan himself admitted (R. 703-19).

The entire gravamen of Sullivan's complaint (which alleged no special damage but sought $500,000 as punitive damages) concerned the following two paragraphs of the advertisement (i.e., the third and sixth), which were alleged to be defamatory: "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." (R. 2-4).

Although Sullivan's complaint (R. 2-3) and his letters to petitioner demanding retraction (R. 1962-7) suggest that the above quoted paragraphs followed one another in consecutive order in The Times ad in suit, the record fact is that the first paragraph quoted is separated from the second by two lengthy paragraphs comprising almost a complete column of the ad—one relating to events in numerous cities in Southern states other than Alabama, and the other lauding Dr. King as the "world famous leader of the Montgomery Bus Protest" and the symbol of "the new spirit now sweeping the South" (Pl. Ex. 347, R. 1923-6, reproduced in full in Appendix "A" hereto).

Moreover, Sullivan's entire claim of libel rests on the following minor discrepancy: whereas the ad said that "truckloads" of armed police "ringed the Alabama State College Campus," the fact was that "on three occasions they [police] were deployed near the Campus in large numbers" (R. 594).

Clearly no distinction of substance can validly be drawn between police "ringing" the campus and being "deployed near the campus in large numbers"—particularly in the context of comment and criticism of official conduct on this most vital public issue.

Further, the ad said that Dr. King was arrested "seven times". The testimony was that he was arrested three or four times in Montgomery, Alabama (three of which arrests admittedly occurred prior to the respondent's term of office) (R. 592, 594-5); but there is nothing in the text or context of the advertisement which either requires or permits the inference that the seven arrests occurred in Montgomery or anywhere else in Alabama. 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 (R. 684-5, 688, 694, 701, 716, 719, 725).

None of Sullivan's witnesses (four of whom first saw the ad when called to the office of plaintiff's counsel shortly before the trial to be prepared as witnesses) testified that they believed the ad, or that they thought any less of respondent by reason of its publication (R. 623, 625, 636, 638, 644, 647, 651, 667).

4. Biased trial and judgment

Alabama has enacted sweeping racial segregation laws,which reflect the community hostilities and prejudices that were funneled into the Courtroom. Continuous denunciations of the defendants and of the material in the advertisement appeared in Montgomery newspapers prior to the trial, and continued throughout the trial and while the defendants' motions for new trial and appeals were pending (R. 1999-2243; 871-89). The trial itself took place in a carnival-like atmosphere, with press photographers in the Courtroom taking pictures of all the jurors for the two local newspapers (R. 951, 955), and television cameras following the jury to the very door of the juryroom(R. 889-90, 2242). Two Montgomery newspapers, one on its front page, carried the names of the jurors (R. 2079-80, 952).

This suit was tried in November 1960, in Montgomery County, before Judge Walter B. Jones, and an all-white jury. The Trial Judge himself was a member of the jury commission of Montgomery County, the group responsible for the selection of the jury panel (R. 936, 971), from which Negroes have been intentionally and systematically excluded.

Respondent Sullivan's counsel was permitted by the Trial Judge, without restraint, over objections of petitioners' counsel, to indulge in such inflammatory appeals to racial bias as the mispronunciation of the word "Negro" as "Nigra" and "Nigger" in the presence of the jury, (R. 579-80), and in an invidious reference in his summation to purported events in the Congo (R. 929-30, 939-41). The Opinion of the Alabama Supreme Court below, in condoning such conduct, accepts counsel's lame excuse that he pronounced "the word ‘negro' " as he did because that was the way he had pronounced it "all my life"(R. 1168-9).

Throughout the proceedings below, petitioners took all possible steps to preserve their constitutional rights. They demurred to the complaint (R. 15-24) and filed Amended Demurrers (R. 74-99); their demurrers, as amended, were all overruled (R. 108-9). They made numerous proper objections and excepted to the repeated admission of improper testimony of respondent's witnesses (R. 1102-09). They twice moved to exclude plaintiffs' evidence (R. 109-14, 728, 816), which motions were denied (R. 728, 816-17). They made motions for special findings (R. 114-18) and submitted written requests to charge (see R. 827); they made due and timely objections and exceptions to the denial of their motions and requests. Petitioners moved (see, e.g., R. 109-14; 728, 816) for a dismissal at the end of plaintiff's case and for a directed verdict at the conclusion of the entire case, which motions were denied (R. 728, 816-18). Each petitioner duly and timely submitted a motion for new trial (R. 970-1028) on which Judge Jones refused to rule. This evasion of duty by the trial court was, in turn, seized upon by the Alabama Supreme Court as a pretext for denying review (R. 1169-70).

The treatment afforded petitioners' motions for new trial underlines the repeated denial to petitioners of proper opportunity to be heard below. On December 2, 1960 petitioners properly and timely made, filed and submitted motions for new trials. Petitioners duly appeared, in compliance with Title 13, Sec. 119 of the Alabama Code, on December 16, 1960, the day to which said motions (and the motions of their co-defendant, The New York Times) had been continued. On March 3, 1961, the day on which, the general understanding was, the motions of petitioners and The New York Times would be heard together, the Trial Court heard extensive argument on behalf of The New York Times in support of its motion for a new trial and then refused to hear petitioners' counsel, or permit him to argue, or allow him even to make a statement for the record (R. 895-6). Despite the fact that he had petitioners' papers properly before him, Judge Jones erroneously refused repeated demands by petitioners' counsel for rulings on their motions for new trials (R. 984, 998-9, 1013, 1027-8). On March 17, 1961, Judge Jones denied the Times' motion for a new trial (R. 970); arbitrarily, he never ruled on petitioners' motions (R. 895-6).

All of the foregoing rulings were properly objected to and challenged, and embodied in petitioners' Assignments of Error to the Alabama Supreme Court, duly filed therein and affixed to the certified transcript Record duly submitted and filed with this Court (R. 1100-1132).

In this setting and notwithstanding the complete absence of any evidence of or legal basis for liability of petitioners or any showing of actual damage suffered by respondent, the jury, upon the clearly erroneous instructions of the Trial Judge (R. 819-28), on November 3, 1960 rendered a one sentence verdict in "favor of the plaintiff" in the sum of $500,000 (R. 862), on which the Trial Judge entered judgment(R. 863).

SUMMARY OF ARGUMENT

The State of Alabama and its public officials have developed refined and sophisticated schemes of repression, striking directly at the rights of free speech and press, the roots of our democracy. To silence people from criticizing and protesting their wrongful segregation activities, Alabama officials now seek to utilize civil libel prosecutions which require still less proof than was required under the infamous Sedition Act of 1798, 1 Stat. 596.

The libel prosecutions and enormous judgment herein are clearly induced by Alabama's massive "cradle to grave" statutory system of racial segregation, and clearly constitute another "ingenious" scheme by the State of Alabama and its public officials to suppress criticism of the political conduct of Southern public officials. As such, they clearly constitute prohibited state action and cannot be protected from review by mere labels such as "libel per se."

The preferred First and Fourteenth Amendments' freedoms of speech, press, assembly and association are the very cornerstone of the Bill of Rights. Moreover, the constitutional protection of criticism of the political conduct and actions of public officials extends even to exaggerations and inaccuracies.

Since " . . . public men are as it were, public property" (Beauharnais v. Illinois, 343 U.S. 250, 263), criticism and defamation of their official conduct is clearly within the protections guaranteed by the First and Fourteenth Amendments. The judgment and proceedings below clearly abridge these basic constitutional protections, especially in view of the vital public interest in the integration struggle, the role of petitioners as spiritual leaders of the non-violent resistance movement, and the unconscionable penalty imposed below.

In addition to their patent disregard of these preferred constitutional protections, the Alabama Courts rendered and affirmed the judgment below on a record devoid of evidence of publication by petitioners, evidence of their consent to or authorization of publication, or evidence of damage of any kind to respondent due to the publication of the alleged libel. This disregard is all the more flagrant where the libel alleged is based solely on one claimed minor discrepancy in an advertisement (which is substantially correct) that nowhere mentions respondent by name or refers to him by office or title. Further, they attempted to meet petitioners' defenses that they had not published the ad and that it was not libelous, by adopting definitions of libel, libel per se and ratification, so strained, vague and detached from established legal principles as to amount in and of themselves to unconstitutional infringements of petitioners' rights.

Moreover, imposition of such liability because of petitioners' silence abridges petitioners' First Amendment rights of free association and belief.

Coupled with all of these violations of basic rights is the fact that the trial proceedings patently denied petitioners due process and equal protection of laws. Clearly, when four Negro ministers are sued by a white City Commissioner for an ad seeking support for Dr. Martin Luther King, and the case is tried in a segregated court room in Montgomery, Alabama, during a Civil War Centennial, before an all-white jury and a trial judge elected at polls from which Negroes were excluded, and when that very Judge states that "white man's justice" governs in his court and permits respondent's counsel to say "Nigger" and "Nigra" to the jury, then the Fourteenth Amendment does indeed become the "pariah" that the Trial Judge below called it. (See n. 20, pp. 26-27, infra; n. 3, p. 3, supra).

ARGUMENT

I. This court must nullify schemes which encroach on freedom of utterance under the guise of punishing libel The century-long struggle of the Negro people for complete emancipation and full citizenship has been met at each step by a distinct pattern of resistance, with only the weapons changing, from lynching, violence and intimidation, through restrictive covenants, Black Codes, and Jim Crow laws, to avoidance, "interposition," "nullification," tokenism and open contempt. Into this pattern, the case at bar fits naturally as a further refinement.

In recent years, when tremendous advances have occurred, "when growing self-respect has inspired the Negro with a new determination to struggle and sacrifice until first-class citizenship becomes a reality" (King, Stride Toward Freedom 154 (1958)), when there has come "an awakening moral consciousness on the part of millions of white Americans concerning segregation" (id., p. 154), a national crisis has developed. This crisis was created when the aspirations of the Negroes were met "with tenacious and determined resistance" by "the guardians of the status quo," which "resistance grows out of the desperate attempt of the White South to perpetuate a system of human values that came into being under a feudalistic plantation system which cannot survive" today (id., pp. 155, 156, 158).

Because the essence of this brief is that the civil libel prosecutions involved herein constitute another of the "evasive schemes for racial segregation whether attempted ‘ingeniously' or ‘ingenuously' " (Cooper v. Aaron, 358 U.S. 1, 18), we believe it pertinent and material to view this "scheme" historically, in the "mirror" of the Supreme Court's approach and reaction to other, related "schemes" to preserve segregation.

Even if consideration be limited to the fields of education, voting and housing, such "evasive schemes" have been struck down because of this Court's conviction that "constitutional rights would be of little value if they could be thus indirectly denied" (Smith v. Allwright, 321 U.S. 649, 664).

Thus, the "separate but equal" concept of Plessy v. Ferguson, 163 U.S. 537 (1896) entrenched segregation in schools until 1954 when this Court, in Brown v. Board of Education, 347 U.S. 483, enunciated the fundamental constitutional principle that racial segregation in the field of public education stamped Negroes with a "badge of inferiority" and violated the equal protection of the laws guaranteed by the Fourteenth Amendment.

For almost a decade, to this very day, there has been "massive resistance" to this decision. (Mendelson, Discrimination 40 (1962); also see id., pp. 33-68 passim). The State of Alabama has been a leader of the resistance. This Court in 1958 was compelled to observe that the constitutional rights of school children "can neither be nullified openly and directly by state legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously' " (Cooper v. Aaron, 358 U.S. 1, 17) [Emphasis added]. In 1960, this Court in a unanimous memorandum made it clear that it would brook no further delay through the series of laws based upon the "concept" of "interposition" (Bush v. Orleans School Board, 364 U.S. 500). Dilatory requests for review have been refused. "Tokenism" as a device is under challenge.

The resistance techniques have taken many forms, some subtle and others overt, including contempt of federal court orders by the Governors of Alabama and Mississippi which required the use of federal troops to enforce basic constitutional rights. Ironically, the resistance took the equitable concept of "all deliberate speed," (Brown v. Board of Education, 349 U.S. 294, 301), which this Court proffered as a shield, and converted it to a sword. It was employed not for "consideration" of a "prompt and reasonable start towards full compliance" (349 U.S. at 300), but for resistance and nullification. This Court in its last term recognized that the concept of "all deliberate speed" had been abused and subverted. Watson v. City of Memphis, 373 U.S. 526.

This Court has been vigilant, as it pledged it would be in Cooper v. Aaron, supra, to invalidate direct and indirect schemes seeking to preserve racial segregation. Such vigilance must now be directed against the "civil libel" scheme so "ingeniously" and "ingenuously" and to date successfully employed as a weapon against the Negro petitioners and The New York Times.

Similarly, in the realm of Negro voting rights and other appurtenances of full citizenship, this Court has exposed the use of "evasive schemes" designed to nullify and sterilize Negro civil rights.

After this Court struck down a Texas law which bluntly denied the Negro the right to vote in a Democratic Party primary (Nixon v. Herndon, 273 U.S. 536), circumvention and more subtle means were employed. When these too failed to pass this Court's scrutiny (Nixon v. Condon, 286 U.S. 73), Texas repealed all such laws and fell back successfully to the legal sanctuary of "private action", placing the device beyond the reach of the Fourteenth Amendment (Grovey v. Townsend, 295 U.S. 45).

But, several years later, in 1944, this Court in Smith v. Allwright, 321 U.S. 649, overcame the "private action" device by going behind the white primary. Mr. Justice Reed aptly described this Court's searching approach to nullification of constitutional rights by indirection (321 U.S. at 664): "The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race. This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied" (Emphasis added).

Foreshadowing the aftermath of Brown v. Board of Education, supra, Smith v. Allwright "aroused a storm of denunciation in the south, participated in by members of Congress, governors and others who proclaimed that ‘white supremacy' must be preserved. They threatened that the decision would be disregarded or circumvented." Fraenkel, The Supreme Court and Civil Liberties 31 (1963). Thus, each "evasive scheme" thereafter employed to achieve discrimination in primary machinery was struck down. See Terry v. Adams, 345 U.S. 461; Fraenkel, supra, p. 31; Myrdal, The American Dilemma 479-86 (1944).

In addition to the right to vote, full citizenship includes the right of jury service. Southern efforts to restrict and prevent jury service by Negroes reflect a similar pattern of resort to the full arsenal of "evasive schemes" after the passage of direct laws denying Negroes service on juries was barred by this Court. Strauder v. West Virginia, 100 U.S. 303. It was in this context that this Court first observed that it would not tolerate discrimination "whether accomplished ingeniously or ingenuously." Smith v. Texas, 311 U.S. 128, 132; see also Norris v. Alabama, 294 U.S. 587; Cassell v. Texas, 339 U.S. 282; Avery v. Georgia, 345 U.S. 559. Even the finding of a state court that no discrimination existed did not bar this Court from going behind the facade to unmask, after review of the facts, subtle techniques for achieving denial of impartial jury. Ross v. Texas, 341 U.S. 918; Shepherd v. Florida, 341 U.S. 50.

Grand jury selections which directly or indirectly discriminated were interdicted. Smith v. Texas, supra; Eubanks v. Louisiana, 356 U.S. 584.

This Court overcame the artifice of gerrymandering which is in essence an "evasive scheme" to disenfranchise Negroes. Gomillion v. Lightfoot, 364 U.S. 339; and in Baker v. Carr, 369 U.S. 186, it has begun to grapple with more subtle, deeply entrenched means of effective disenfranchisement. In the same spirit, this Court did not permit voting registrars who committed wrongful acts to be insulated from liability by the designation of "private persons." United States v. Raines, 362 U.S. 17.

Finally, in the realm of housing, the use of artificial forms and "legalisms" as techniques for perpetuating discrimination was struck down. Racially restrictive zoning ordinances were declared illegal. Buchanan v. Warley, 245 U.S. 60; Harmon v. Tyler, 273 U.S. 668. In this field, the label of "private action" on racially restrictive covenants remained an impregnable fortress for discrimination for many decades (cf. Civil Rights Cases, 109 U.S. 3; Vose, Caucasians Only (1959)). Through racially restrictive covenants, efforts of Negroes to move out of slums and ghettoes to find better homes and schools were effectively and "legally" thwarted.

In Shelley v. Kraemer, 334 U.S. 1, 19, this Court breached the walls of the fortress protecting these obnoxious covenants and held that the "private action" of contracting parties, when enforced by state courts, resulted in state action, saying: "active intervention of the state courts supported by the full panoply of state power" resulted in state action in the full and complete sense of the phrase.

Again, as with Smith v. Allwright and Brown v. Board of Education, both supra, a landmark declaration of positive constitutional right and privilege was met by resistance. A search was on to nullify, interpose or circumvent. (Vose, op. cit., supra, 227-34). This Court, five years later, in 1953 had to stem a tide of damage suits which had victimized those who "breached" the racial covenants. Barrows v. Jackson, 346 U.S. 249. Mr. Justice Minton, in a decision which bears close scrutiny as applicable to the case at bar, concluded that the grant of damages by a state court constituted state action under the Fourteenth Amendment; that to allow damages against one who refuses to discriminate "would be to encourage the use of restrictive covenants. To that extent, the State would act to put its sanction behind the covenants . . . [T]he Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of laws to other individuals" (346 U.S. at 254-60).

The foregoing discussion of "ingenious" efforts to find "evasive schemes" for segregation was intended to place the case at bar in true perspective. It brings to the fore Mr. Justice Frankfurter's statement, in Beauharnais v. Illinois, supra, that this Court "retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel" (343 U.S. at 263-4) [Emphasis added]. We submit that the civil libel prosecutions involved in the case at bar represent just such a "guise"; that they fall squarely within the pattern of devices and subterfuges which this Court has struck down in the realm of education, peonage, voting rights and housing, and must strike down here.

II. The proceedings below constitute prohibited state action and, together with the concepts of libel enunciated by the Alabama courts, unconstitutionally abridge freedoms of press, speech, assembly and association

A. Prohibited state action is clearly involved To insulate this case against critical review by this Court, the erroneous assertion was made in the courts below that there is an absence of "state action" and that this is merely a "private action of libel". This contention has no validity.

In Shelley v. Kraemer, 334 U.S. 1, 14, the Court stated: "That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court." [Emphasis added].*******"We have no doubt that there has been state action in these cases in the full and complete sense of the phrase." (Id., p. 19).

See Barrows v. Jackson, 346 U.S. 249, 254 (state court suit between private parties, seeking damages for breach of a racially restrictive covenant, held barred by the Fourteenth Amendment); American Federation of Labor v. Swing, 312 U.S. 321 (state court's enforcement of a common law policy held state action within the Fourteenth Amendment); accord: Bridges v. California, 314 U.S. 252; Wood v. Georgia, 370 U.S. 375.

Moreover, the action by respondent Sullivan and the actions and pronouncements of other public officials (including the Attorney General and Governor of the State of Alabama) in and of themselves clearly constitute "State action" within the concepts enunciated by this Court in Lombard v. Louisiana, 373 U.S. 267.

The record herein notes that the instant case was instituted by Sullivan several days after the public announcement by Attorney General Gallion of Alabama that, on instructions from Governor Patterson, he was examining the legal aspects of damage actions by the State against the New York Times and others based on the advertisement here involved (R. 1999, 2001). The related companion libel suits filed by Mayor James, Commissioner Parks, former Commissioner Sellers and Governor Patterson, as well as the instant case, were instituted soon thereafter. All of these suits were based on substantially identical claims of libel and were instituted against petitioners and The New York Times based on the same advertisement, in the same circuit court of Montgomery County. (See Parks v. New York Times, 195 F. Supp. 919 (M. D. Ala.), rev'd on other grounds, 308 F. 2d 474 (C. A. 5), cert. pending; Abernathy v. Patterson, 295 F. 2d 452 (C. A. 5), cert. den., 368 U.S. 986).

Governor Patterson's complaint prays for damages in the sum of $1,000,000, and the Parks and Sellers and James complaints each pray for $500,000 damages.

Four other libel suits were instituted by Birmingham officials, seeking a total of $1,300,000 in damages, based on articles on racial tensions by Harrison Salisbury in The Times. Alabama officials have also filed libel actions against the Columbia Broadcasting System, seeking $1,500,000 in damages based on a television news program devoted, in part, to the difficulties experienced by Negro citizens of Montgomery in registering to vote. Morgan, Connor & Waggoner v. CBS, Inc. (N. D. Ala., So. Div.) Civ. Nos. 10067-10069S; Willis & Ponton v. CBS, Inc. (M. D. Ala., No. Div.) Civ. Nos. 1790-1791N.

On May 22, 1960, shortly after the institution of the above-described actions against petitioners and The Times, the Montgomery Advertiser (a prominent local newspaper) stated editorially: "The Advertiser has no doubt that the recent checkmating of The Times in Alabama will impose a restraint upon other publications which have hitherto printed about the South what was supposed to be." (R. 2025).

It is difficult to believe that this flood of libel prosecutions instituted by public officials of the State of Alabama was simply a spontaneous, individual response to a critical newspaper advertisement. One is compelled to conclude that these actions by public officials are 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 (See n. 7, p. 12, supra).

The Sullivan case, considered in conjunction with the activities of the other Alabama city and state officials, is clearly within the state action doctrine enunciated in the Lombard case, supra. "A State or a city may act as authoritatively through its executive as through its legislative body" (373 U.S. at 273). Clearly, Alabama has interceded, by its judiciary and its city and state officials, to put state sanctions behind its racial segregation practices.

Once the shelter of "private action" is removed from the "libel" judgment below, that judgment and its affirmance are exposed as another "scheme" to abridge the petitioners' basic constitutional rights of free political expression.

B. The First and Fourteenth Amendments protect criticism and discussion of the political conduct and actions of public officials Since this Court in the public interest accords to public officials immunity from libel (Barr v. Matteo, 360 U.S. 564), the same public interest must insure a corresponding protection to those who criticize public officials.

Public officials, backed not only by the full power of their offices but also by the aura of power, must be held to strictest account. To expect such account to be received dispassionately and dealt with in polite phrases by press and public is to deny effective criticism and comment.

In Roth v. United States, 354 U.S. 476, 484, this Court ruled that the First and Fourteenth Amendments were "fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

In Justice Hughes' classic statement is found support for the key role of political discussion: "[I]mperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government" (De Jonge v. Oregon, 299 U.S. 353, 365).

Such criticism and discussion of the actions of public officials are constitutionally protected not only against prior restraint but also against subsequent punishment. Wood v. Georgia, supra; Schneider v. State, 308 U.S. 147; Bridges v. California, 314 U.S. 252; Grosjean v. American Press Co., 297 U.S. 233, 243-245; Near v. Minnesota, 283 U.S. 697, 707; Thornhill v. Alabama, 310 U.S. 88; Cantwell v. Connecticut, 310 U.S. 296.

Perhaps more than any other issue in the history of the United States, the demand of Negro Americans to be granted full rights as citizens, from the slave revolts through the Abolition Movement and the Civil War to the present non-violent movement, has been a most graphic witness to these observations by Justice Jackson: ". . . a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purposes when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea." Terminello v. Chicago, 337 U.S. 1, 4.

This Court ruled in Cantwell, supra, that the Fourteenth Amendment invalidates state court judgments "based on a common law concept of the most general and undefined nature" (310 U.S. at 308) used by those on one side of "sharp differences" to penalize those on the other side. It concluded that: ". . . the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy" (310 U.S. at 310).

This Court has repeatedly recognized that the preferred First and Fourteenth Amendment freedoms of speech, press, assembly and association are the very cornerstone of the Bill of Rights and our entire democratic heritage (Wood v. Georgia, supra; Thomas v. Collins, 323 U.S. 516; Schneider v. State, 308 U.S. 147, 161; De Jonge v. Oregon, supra, 364); and that the constitutional protection of such criticism of public officials extends even to "half truths", "misinformation", exaggerations and inaccuracies (Pennekamp v. Florida, 328 U.S. 331; Bridges v. California, 314 U.S. 252; Cantwell v. Connecticut, 310 U.S. 296, 310). "Freedom of petition, assembly, speech and press could be greatly abridged by a practice of meticulously scrutinizing every editorial, speech, sermon or other printed matter to extract two or three naughty words on which to hang charges of ‘group libel' " (Mr. Justice Black, dissenting, in Beauharnais v. Illinois, 343 U.S. 250, 273).

Neither the State of Alabama nor any other state may foreclose the exercise of these basic constitutional rights by the appellation of "libel per se" or any other like label (NAACP v. Button, 371 U.S. 415, 429; Wood v. Georgia, 370 U.S. 375, 386; Craig v. Harney, 331 U.S. 367; Norris v. Alabama, 294 U.S. 587).

As this Court ruled in NAACP v. Button, supra: "A State cannot foreclose the exercise of constitutional rights by mere labels" (371 U.S. at 429).

The decision and judgment below clearly conflict with these prior decisions.

Indeed, as emphasized by the context in which they arose, the proceedings below are nothing more than a subterfuge to employ legal sanctions, and the fear of legal sanctions, to silence criticism of the official conduct of public officials, and to thus, revive, in new guise, the heinous, long-proscribed doctrines of "Seditious Libel". This tyrannical device and its civil counterpart, Scandalum Magnatum (described in Odgers, Libel and Slander 65 (6th Ed. 1929)), have long been considered barred by the preferred constitutional guarantees of freedom of speech, press, assembly and association embodied in the First and Fourteenth Amendments (see Holmes, J., in Abrams v. United States, 250 U.S. 616, 630; De Jonge v. Oregon, 299 U.S. 353, 365; Sillars v. Collier, 151 Mass. 50; Chafee, Free Speech in the United States 27-29 (1941); Schofield, "Freedom of Press in the United States", Essays on Constitutional Law and Equity 540-541 (1921)). They must not now be permitted resurrection for any purpose, much less that repressive use attempted here.

This Court's recent decision in Wood v. Georgia, supra, restates and reaffirms the well-established doctrine that criticism of the official conduct of public officials is protected against state infringement by the First and Fourteenth Amendments. There, the Court found these Amendments protected Sheriff Wood's written accusations to a Grand Jury that the Superior Court Judges of Georgia were guilty of abusing their offices, misusing the state criminal law, attempted intimidation of Negro residents, fomenting racial hatred, "race baiting" and "physical demonstrations such as used by the Ku Klux Klan". In so holding, this Court said, per Mr. Chief Justice Warren: "Men are entitled to speak as they please on matters vital to them; errors in judgment or unsubstantiated opinions may be exposed, of course, but not through punishment for contempt for the expression. Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgement of the rights of free speech and assembly." (370 U.S. at 389) [Emphasis added].

A fortiori, The Times advertisement, which contained no official's name, no charge of crime or corruption in office, but rather which treated of vital and significant issues of the times, must fall well within that constitutionally protected ambit. Nor can any reasonable representation be made, to remove this case from that protected area, that The Times advertisement created any likelihood of immediate danger of conflict or violence. (Whitney v. California, 274 U.S. 357).

Further, the enormous sum of $500,000, awarded as punitive damages on a record so thoroughly devoid of crucial evidence, is wholly unconscionable. Such penalty by way of punitive damages (which, the jury was charged, constitutes "punishment" designed to deter defendants and others (R. 825-6)) represents a grave impairment of free expression and an unconstitutional restraint upon "the public need for information and education with respect to the significant issues of the times" (Thornhill v. Alabama, 310 U.S. at 102, quoted with approval in Wood v. Georgia, supra). The mere threatof such "punishment" is far greater than the $400 fine and 20-day sentence for contempt which this Court has reversed as violative of the First and Fourteenth Amendments. (Wood v. Georgia, supra. See also Barrows v. Jackson, 346 U.S. 249; Grosjean v. American Press Co., 297 U.S. 233).

The Alabama Supreme Court sustained the $500,000 verdict and judgment solely as proper "punitive damages" (R. 1175-9).The technical and formal distinction that this huge penalty was imposed through civil rather than criminal libel prosecution is, in this situation, disingenuous at best, and lends no support to the judgment below.

For both this Court and the Circuit Court of Appeals have recognized that both civil and criminal libel prosecutions may encroach on the preferred rights guaranteed by the First and Fourteenth Amendments. See, e.g., Beauharnais v. Illinois, 343 U.S. 250, 263-4 (criminal); Sweeney v. Patterson, 128 F. 2d 457 (C. A., D. C.), cert. den., 317 U.S. 678 (civil).

In Beauharnais this Court stated: "'While this Court sits' it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel. Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." (343 U.S. at 263, 264)

and significantly added in a footnote: "If a statute sought to outlaw libels of political parties, quite different problems not now before us would be raised. For one thing, the whole doctrine of fair comment as indispensable to the democratic political process would come into play [citing cases]. Political parties, like public men, are, as it were, public property." (Id., p. 263, n. 18).

Criticism and discussion of the actions of public officials are a sine qua non of the democratic process. It may fairly be said that the genius of our Bill of Rights lies precisely in its guarantee of the right to speak freely on public issues and to criticize public officials' conduct on the assumption that only an informed people is fit to govern itself. First Amendment freedoms are "the most cherished policies of our civilization" "vital to the maintenance of democratic institutions".

This Court has recognized that the right to speak out for the civil rights of Negro citizens, and against those in public or private life who would deny them, is under bitter attack in Southern States, and has acted to protect that right in a long line of cases. Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539; NAACP v. Button, 371 U.S. 415; Shelton v. Tucker, 364 U.S. 479; Bates v. City of Little Rock, 361 U.S. 516; NAACP v. Alabama, 357 U.S. 449.

In Button, this Court stated: "We cannot close our eyes to the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community . . ." (371 U.S. at 435).

In Bates, this Court noted that: "Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." (361 U.S. at 523).

The award of punitive damages to a criticized official may well be more subversive of the freedom to criticize the government than is compelled disclosure of affiliation, which this Court has ruled inconsistent with the First Amendment in the cases cited above. See also Gibson, supra; West Va. Board of Education v. Barnette, 319 U.S. 624.

Indeed, "punishment by way of damages . . . not alone to punish the wrongdoer, but as a deterrent to others similarly minded," where such damages are subject to "no legal measure," exceeds even the criminal punishment of Seditious Libel. For here the "fine" is limited only by the complainant's ad damnum clause, and may be imposed without indictment or proof beyond a reasonable doubt. The Alabama courts require neither an intent to bring the official "into contempt or disrepute," as in the Sedition Act (Act of July 14, 1798, 1 Stat. 596), nor any proof of actual injury to reputation. The Trial Court below ruled the ad libelous per se, and instructed the jury (R. 823) that it was to be presumed to be "malicious." Further, the Court below ruled it was legally sufficient to constitute libel per se that the criticism, "if believed", would "tend to injure . . . [the official] in his reputation."

Were the libel theory of the Alabama courts below allowed to stand, the danger to freedom of written expression would be tremendous. Its infection would spread quickly and disastrously, bringing suit next for slander for spoken words. A veritable blackout of criticism, a deadening conformity, would follow inexorably. It requires little imagination to picture the destructiveness of such weapons in the hands of those who, only yesterday, used dogs and fire hoses in Birmingham, Alabama against Negro petitioners leading non-violent protests against segregation practices.

C. Vagueness and indefiniteness of standards require reversal of the judgment below Such vague rules of liability, as were employed in the Trial Court's judgment and upheld in the Alabama Supreme Court's affirmance, restrict the exercise of First Amendment rights more seriously than would have the penalties stricken down in Wood, supra, or Cantwell, supra, or the compulsory disclosure prohibited in Gibson, supra. For the uncertainty created thereby is even greater than that involved in the following cases in which this Court has found vagueness constitutionally offensive.

In NAACP v. Button, 371 U.S. 415, a Virginia statute was condemned on the ground that the conduct it prohibited was "so broad and uncertain" as to "lend itself to selective enforcement against unpopular causes." As the Court said in Button, supra: "Broad prophylactic rules in the area of free expression are suspect [citing cases]. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." (371 U.S. at 435).

Similarly, in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 71, the Court struck down a statute ostensibly designed to shield youthful readers from obscenity on the ground that the statutory mandate was "vague and uninformative", leaving the distributor of books "to speculate" as to whether his publication fell within the statute.

Perhaps the most telling of all statements on this point is contained in the dissent of Messrs. Justice Reed and Douglas in Beauharnais: " . . . Racial, religious, and political biases and prejudices lead to charge and countercharge, acrimony and bitterness. If words are to be punished criminally, the Constitution at least requires that only words or expressions or statements that can be reasonably well defined, or that have through long usage an accepted meaning, shall furnish a basis for conviction."These words—‘virtue,' ‘derision,' and ‘oblo- quy'—have neither general nor special meanings well enough known to apprise those within their reach as to limitations on speech [citing case]. Philosophers and poets, thinkers of high and low degree from every age and race have sought to expound the meaning of virtue, but each teaches his own conception of the moral excellence that satisfies standards of good conduct. Are the tests of the Puritan or the Cavalier to be applied, those of the city or the farm, the Christian or non-Christian, the old or the young? Does the Bill of Rights permit Illinois to forbid any reflection on the virtue of racial or religious classes which a jury or a judge may think exposes them to derision or obloquy, words themselves of quite uncertain meaning as used in the statute? I think not. A general and equal enforcement of this law would restrain the mildest expressions of opinion in all those areas where ‘virtue' may be thought to have a role. Since this judgment may rest upon these vague and undefined words, which permit within their scope the punishment of incidents secured by the guarantee of free speech, the conviction should be reversed." Beauharnais v. Illinois, 343 U.S. 250, 283-284.

Accordingly, on grounds of vagueness and uncertainty alone, the judgment below must be reversed.

D. Respondent's erroneous contentions as to the defense of truth Respondent, in opposing certiorari, contended that the availability of the defense of truth suffices to protect the First Amendment freedoms against encroachment by a common law libel action. This argument has been rejected by the courts and by history. Sweeney v. Patterson, 128 F. 2d 457, 458 (C. A., D. C.), cert. den., 317 U.S. 678, held: "Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors . . . Information and discussion will be discouraged, and the public interest in public knowledge of important facts will be poorly defended if error subjects its author to a libel suit without even a showing of economic loss. Whatever is added to the field of libel is taken from the field of free debate." [Emphasis added].

To the same argument, raised in defense of the Sedition Act of 1798, James Madison replied: " . . . [A] very few reflections will prove that [the Sedition Act's] baneful tendency is little diminished by the privilege of giving in evidence the truth of the matter contained in political writings.* * * * *"But in the next place, it must be obvious to the plainest minds; that opinions, and inferences, and conjectural observations, are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions and inferences, and conjectural observations, cannot be subjects of that kind of proof which appertains to facts, before a court of law." (Kentucky-Virginia Resolutions and Mr. Madison's Report of 1799, Virginia Commission on Constitutional Government 71 (1960)).

Respondent's case confirms Madison's observations, resting as it does on one minor inaccuracy in The Times ad and the strained inferences therefrom of respondent and his witnesses.

Nor, as this Court has expressly stated in NAACP v. Button, supra, is the truth of ideas and beliefs a precondition for their constitutional protection: " . . . For the Constitution protects expression and association without regard to the race, creed or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity or social utility of the ideas and beliefs which are offered." (371 U.S. at 444-5).

And the use by the Alabama Supreme Court (R. 1178) of the testimony of the Secretary of The Times, that the advertisement was "substantially correct" (R. 785), to sustain both an inference of malice and the $500,000 verdict, is best rebutted by Judge Clark in his cogent dissent in Sweeney v. Schenectady Union Pub. Co., 122 F. 2d 288, 292 (C. A. 2), aff'd per curiam by an equally divided Court, 316 U.S. 642. "I do not think it an adequate answer to such a threat against public comment, which seems to me necessary if democratic processes are to function, to say that it applies only to false statements. For this is comment and inference, . . . and hence not a matter of explicit proof or disproof. The public official will always regard himself as not bigoted, and will so testify, sincerely enough. And then the burden of proving the truth of the defense will rest upon the commentator, who must sustain the burden of proving his inference true. If he fails in even a minority of the suits against him—as the sporting element in trials to juries susceptible to varying shades of local opinion would make probable—he is taught his lesson, and a serious brake upon free discussion established."

In sum, this Court must not permit a discredited technique of oppression, no matter how "subtle" or sophisticated or refined its new guise (Bates v. Little Rock, supra, at 523) to be restored as an effective device for men in office to " . . . injure and oppress the people under their administration, provoke them to cry out and complain; and then make that very complaint the foundation for new oppression and prosecutions."

III. The judgment and proceedings below violate petitioners' First and Fourteenth Amendment rights in that the record is devoid of evidence of authorization or publication of the ad in suit, and they require of total strangers to the publication expression of disbelief and disavowal

A. Lack of evidence as denial of Due Process of Law The record below 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 (see pp. 8-12, supra).

In examining this record, District Judge Johnson, in Parks v. New York Times Co., 195 F. Supp. 919 (M. D. Ala.), rev'd on other grounds by a two to one decision, 308 F. 2d 474 (C. A. 5), petition for cert. pending, (No. 687, 1962 Term, renumbered No. 52, 1963 Term), found and ruled as follows (pp. 922-3): "This Court reaches the conclusion that from the evidence presented upon the motion to remand in each of these cases there is no legal basis whatsoever for the claim asserted against the resident defendants Abernathy, Shuttlesworth, Seay, Sr., and Lowery [petitioners herein]. From the facts available to this Court, no liability on the part of the four resident defendants existed under any recognized theory of law; this is true even with the application of the Alabama ‘scintilla rule'."* * * * *"They were neither officers nor members of the Committee, and had not authorized the committee, or Murray, or The New York Times, or anyone else to use their names in such a manner. Neither resident defendant knew his name had been used until some time after the publication of the article in question. The theory that the article was authorized and that the individual resident defendants had authorized the use of their names through the Southern Christian Leadership Conference is without any evidentiary basis whatsoever. As a matter of fact, all the evidence is to the contrary and uncontradicted." [Emphasis and brackets supplied].

The courts below relied on the unfounded premise that the petitioners were linked with the advertisement in question by the letter from A. Philip Randolph (R. 1948-9; 1992), which the Alabama Supreme Court seized upon and characterized as a certification that the petitioners had consented to the use of their names in the advertisement (R. 1170). On the contrary, however, it is undisputed that the letter referred to "signed members of the Committee" and that the petitioners' names were not attached thereto (R. 805-10, 818).

Therefore, as their names were used without their knowledge or consent (R. 754-5, 806-10), the assertion of the court below (R. 1170) that the Randolph letter certified petitioners' permission to use their names is clearly groundless and constitutes distorted fact finding.

In Stein v. New York, 346 U.S. 156, 181, this Court set forth the established rule: "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."

Accord: Wood v. Georgia, 370 U.S. 375; Craig v. Harney, 331 U.S. 367; Pennekamp v. Florida, 328 U.S. 331.

As indicated, the judgment against petitioners clearly lacks any rational connection with, and is in fact directly contrary to, the undisputed record facts. Accordingly, the result below conflicts with this Court's decisions in Thompson v. Louisville, 362 U.S. 199; Postal Telegraph Cable Co. v. City of Newport, Ky., 247 U.S. 464; Tot v. United States, 319 U.S. 463.

Since there is no rational evidentiary support in the record for the finding that petitioners authorized the use of their names as sponsors of the advertisements, the judgment below clearly violates the "due process" requirements of the Fourteenth Amendment and must be set aside for lack of evidence. Garner v. Louisiana, 368 U.S. 157; Thompson v. Louisville, 362 U.S. 199.

B. Prejudicial rulings below concerning "ratification"; silence as consent Absent any evidence that petitioners published or authorized publication of the advertisement at issue, and in the face of uncontroverted evidence that petitioners' names were used without authorization or consent, the trial court improperly charged the jury (R. 824-5): ". . . although you may believe . . . that they did not sign this advertisement and did not authorize it, yet it is the contention of the plaintiff . . . that the four individuals . . . after knowing of the publication of the advertisement and after knowing of its content, ratified the use of their names . . . and we here define ratification as the approval by a person of a prior act which did not bind him but which was professedly done on his account or in his behalf whereby the act, the use of his name, the publication, is given effect as if authorized by him in the very beginning. Ratification is really the same as a previous authorization and is a confirmation or approval of what has been done by another on his account."

Petitioners duly excepted, and the Trial Judge duly granted an exception, to this crucial and prejudicial portion of the oral charge (R. 829); but the Supreme Court of Alabama nevertheless refused to rule thereon, on the purported ground that the "attempted exception was descriptive of the subject matter only, and is too indefinite to invite our review" (R. 1168).

The quoted oral charge rests solely on the silence of petitioners for approximately eight days, between their receipt, on or about April 11, 1960 (R. 799), of respondent's demand for retraction, and April 19, 1960, the date of commencement of respondent's suit; for the record is wholly devoid of any other act or omission of petitioners subsequent to the publication of the advertisement. Thus, the charge invited the jury to impose liability on petitioners solely on the basis of their silence subsequent to publication of the advertisement. But such silence does not have sufficient rational connection with the publication of the advertisement to satisfy the Due Process Clause of the Fourteenth Amendment, nor can the erroneous refusal of the Alabama Supreme Court to rule on petitioners' exceptions and Assignments of Error preclude review by this Court.

Moreover, the trial judge, contrary to established principles, in effect directed the jury to find the New York Times' ad in suit "libelous per se" (R. 823); and the Supreme Court of Alabama, while finding this charge "confused" and "invasive" of the province of the jury (R. 1166-7), still refused to find prejudice to petitioners (R. 1167).

Such erroneous and prejudicial rulings by the courts below unconstitutionally infringed petitioners' basic rights in their gross misapplication of controlling decisions of this Court, and in the oppressive and unreasonable judgment they buttressed. No state court can, particularly on such evidence, exact a price of $500,000 for eight days' silence and remain consistent with the First and Fourteenth Amendments.

Nor do petitioners' failures to reply constitute a ratification. Governing authority is clear that a prerequisite of "ratification" (even in contract cases) is knowledge by the "ratifying" party of all the relevant facts involved. Petitioners did not have such knowledge here (R. 787-804). Neither respondent nor the Courts below cited any applicable authority to negate this accepted definition of ratification. (Cf. A. B. Leach & Co. v. Peirson, 275 U.S. 120; and see Angichiodo v. Cerami, 127 F. 2d 849, 852 (C. A. 5)).

C. Compulsory disclosure of belief Moreover, any such attempt to require petitioners to retract or deny publication fatally conflicts with the freedoms of thought and association guaranteed by the Constitution and the decisions of this Court. Gibson v. Florida Legislative Investigation Committee; NAACP v. Button; Talley v. California; Bates v. City of Little Rock; NAACP v. Alabama; West Va. Board of Education v. Barnette; De Jonge v. Oregon, all supra.

The applicability of the doctrine of these cases to a failure to retract or deny cannot be seriously disputed. It is patent that compelled expression of disbelief, such as would result from imposition of liability for failure to retract a publication neither made nor authorized, is at least as dangerous as compulsion to disclose belief (Talley v. California, supra; NAACP v. Alabama, supra) or express belief (West Va. Board of Education v. Barnette, supra). This Court has ruled such compulsions unconstitutional.

These cases guarantee petitioners freedom to believe in the aims of the advertisement as well as freedom to associate themselves with others to accomplish such aims. As this Court said in Gibson (supra, 544): "This Court has repeatedly held that rights of association are within the ambit of the constitutional protections afforded by the First and Fourteenth Amendments (citing cases). The respondent Committee does not contend otherwise, nor could it, for, as was said in NAACP v. Alabama, supra, ‘it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.' 357 U.S. at 460. And it is equally clear that the guarantee encompasses protection of privacy of association . . ." [Emphasis added].

Respondent, abetted by the coercive power of the State of Alabama, cannot constitutionally compel petitioners to decide within an eight day period whether or not to associate themselves publicly with, or dissociate themselves from, an advertisement seeking to achieve goals which petitioners may constitutionally support, especially under penalty of imputing malice to them and of punitive damages. Certainly no such compulsion can be constitutionally imposed on petitioners to make such disavowal of an ad, the full text of which they had not seen. Any such application of the Alabama retraction statutes cited by respondent (Title 7, Sections 913-16 of the Code of Alabama, at pp. 4-5, supra), or any such "rule of evidence" as respondent seeks to apply, would deprive petitioners of their right to obtain a copy of the advertisement, study the content thereof, investigate the accuracy of the statements claimed to be false, analyze the effect of the advertisement, consult with legal counsel, and—in the light of such study, investigation, analysis and consultation— decide either to deny publication, support the advertisement, remain silent or adopt some other course of conduct consistent with their consciences and beliefs.

The Alabama statutes as herein applied compelled petitioners to choose between public dissociation from beliefs and ideas and the legal imputation that they are associated with such beliefs and ideas. The First and Fourteenth Amendments, as interpreted in the controlling decisions cited above, prohibit such compulsory disclosure of association or dissociation.

Moreover, the Alabama "retraction statute" requires in part that defendant shall "publish . . . 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 914 of the Code of Alabama, set forth in full at p. 4, supra).

Assuming arguendo that petitioners might have been willing to "retract," it was clearly impossible for them to meet the conditions imposed by the Alabama statute. To make such retraction would require petitioners to place and pay for an advertisement in The Times. The record (together with the subsequent attachments and levies on petitioners made by respondent Sullivan) indicates that the limited salaries of petitioners would probably have made the cost of such an advertisement prohibitive to them. Accordingly, the Alabama retraction statute, as applied in the case at bar, clearly appears to discriminate against the indigent and in favor of the wealthy. It is, thus, apparent that the Alabama retraction statutes, as so applied against petitioners, deny equal protection of law in violation of the Fourteenth Amendment. Cf. Gideon v. Wainwright, 372 U.S. 335.

This Court has repeatedly held that freedom of thought and belief is absolute (Cf. Cantwell v. Connecticut, supra, 303; West Va. Board of Education v. Barnette, supra). Whatever may be the power of the State to restrict or compel actions, the right to remain silent as to a choice of such conflicting beliefs is absolutely protected. The statement at issue here is a constitutionally protected expression of opinion on important public issues. However, even if this case involved a statement not within the safeguards of the First and Fourteenth Amendments, failure during an eight day period to deny publication could not sustain liability for publication of a claimed libel, without unconstitutionally restricting freedom of belief and association. Gibson, supra; NAACP v. Alabama, supra.

IV. Petitioners' rights to Due Process and Equal Protection of Law and to a fair and impartial trial as guaranteed by the Fourteenth Amendment were flagrantly violated and abridged by the proceedings below

Petitioners submit that their trial below was a "race trial", in which they were from first to last placed in a patently inferior position because of the color of their skins.

Throughout the trial below, the jury had before it an eloquent assertion of the inequality of the Negro in the segregation of the one room, of all rooms, where men should find equality, before the law. This Court's landmark decision in Brown v. Board of Education, supra, gave Constitutional recognition to the principle that segregation is inherently unequal; that it denies Negroes the equal protection of the law, stamps them with a "badge of inferiority" and deprives them of the full benefits of first-class citizenship.

In Johnson v. Virginia, supra, this Court specifically held: "Such a conviction [for contempt for refusing to sit in a Negro section of the court room] cannot stand, for it is no longer open to question that a State may not constitutionally require segregation of public facilities [Citing cases]. State-compelled segregation in a court of justice is a manifest violation of the State's duty to deny no one the equal protection of its laws." 373 U.S. at 62 [Brackets added].

Where Sullivan, a white public official, sued Negro petitioners represented by Negro counsel before an all-white jury, in Montgomery, Alabama, on an advertisement seeking to aid the cause of integration, the impact of courtroom segregation could only denote the inferiority of Negroes and taint and infect all proceedings, thereby denying petitioners the fair and impartial trial to which they are constitutionally entitled. And such courtroom segregation has been judicially noted to be a long-standing practice in the state courts of Alabama, as well as throughout the South.

In such a context and in light of Alabama's massive system of segregation, the segregated courtroom, even if it be the immediate result of the acts of private persons in "voluntarily" segregating themselves, must be viewed as the direct result of state action and policy in contravention of the Equal Protection Clause. Lombard v. Louisiana, 373 U.S. 267. Here, as in Lombard, state policy and action has dictated, and is legally responsible for, the "private act" of segregation.

State courts and judges have an affirmative duty to secure the equal protection of laws (Gibson v. Mississippi, 162 U.S. 565, 586), which duty cannot be sidestepped, as below, by ignoring, or merely failing to discharge, the obligation. Burton v. Wilmington Parking Authority, 365 U.S. 715. Such duty can only be a more stringent obligation when the violation of equal protection occurs within the judge's own courtroom.

Compounding this unconstitutional segregation were the racial animosities of the community which the Trial Judge permitted, indeed encouraged, to enter and pervade the courtroom. See pp. 12-15, supra. The conclusion is inescapable that the trial denied petitioners equal protection and due process of law. Irvin v. Dowd, 366 U.S. 717; Marshall v. United States, 360 U.S. 310; Shepherd v. Florida, 341 U.S. 50, 54-5; Craig v. Harney, 331 U.S. 367.

The conduct of the trial itself emphasized the race and racial inferiority of petitioners. In his summation to the jury, respondent's counsel, without so much as a rebuke from the Bench, made the following highly prejudicial and inflammatory remark: "In other words, all of these things that happened did not happen in Russia where the police run everything, they did not happen in the Congo where they still eat them, they happened in Montgomery, Alabama, a law-abiding community." (R. 929-30, 941).

Respondent's counsel was also permitted by the Trial Judge, without restraint and over the objections of petitioners' counsel, to mispronounce the word "Negro" as "Nigra" and "Nigger" in the presence of the jury (R. 579-80). The acceptance by the Court below of the lame excuse that this was "the way respondent's counsel had always pronounced it all his life" (R. 580) is directly in conflict with the decisions of this Court. Customs or habits of an entire community (and, a fortiori, of an individual) cannot support the denial of constitutional rights. Cooper v. Aaron, 358 U.S. 1; Eubanks v. Louisiana, 356 U.S. 584, 588.

More than fifty years ago in Battle v. United States, 209 U.S. 36, 39, Justice Holmes noted that racist epithets should never be permitted in a court of law, and that the trial judge should prevent such prejudicial and offensive conduct: "Finally, an exception was taken to an interruption of the judge, asking the defendant's counsel to make an argument that did not tend to degrade the administration of justice. The reference was to an appeal to race prejudice and to such language as this: ‘You will believe a white man not on his oath before you will a negro who is sworn. You can swallow those niggers if you want to, but John Randolph Cooper will never swallow them.' The interruption was fully justified."

The very use of the term "Nigger" in referring to a defendant or a witness has been recognized by numerous state appellate courts to constitute prejudicial, reversible error. See, e.g., Taylor v. State, 50 Tex. Crim. Rep. 560, Harris v. State, 96 Miss. 379; Collins v. State, 100 Miss. 435; Roland v. State, 137 Tenn. 663; Hamilton v. State, 12 Okla. Crim. Rep. 62.

Perhaps the most subtle and personally offensive example of racial derogation is the seeming difference in the Judge's forms of address to the various trial attorneys. Petitioners' trial counsel, all of whom are Negroes, were never addressed or referred to as "Mister" but always impersonally; indeed, in the transcript they are peculiarly referred to as "Lawyer" (e.g., "Lawyer Gray", "Lawyer Crawford"); whereas all white attorneys in the case were consistently and properly addressed as "Mister" (see, e.g., R. 787-90). Such suggested purposeful differentiation by the Judge himself not only would appear to classify Negro petitioners and their counsel as somehow different; it strongly intimates to all present, including the jurors, that in Alabama courts the Negro practitioner at the bar may be a "lawyer" but is not quite a man to be dignified as "mister".

Furthermore, the systematic and intentional exclusion of Negroes from the jury panel itself again stamped the Negro petitioners inferior and unequal, and inevitably denied them a fair trial. From Norris v. Alabama, 294 U.S. 587, decided by this Court in 1935, through the recent U.S. ex rel. Seals v. Wiman, 304 F. 2d 53, cert. den., 372 U.S. 915, the federal judiciary has struck down, as violative of the Equal Protection Clause, the systematic exclusion of Negroes from the jury panels of Alabama.

Such exclusion is "an evil condemned by the Equal Protection Clause" (Akins v. Texas, 325 U.S. 398, 408), which violates the basic constitutional guarantee of a "fair trial in a fair tribunal" (In re Murchison, 349 U.S. 133, 136). For such exclusion deprived petitioners of a tribunal of impartial and indifferent jurors from the locality without discrimination (Strauder v. West Virginia, 100 U.S. 303; see Irvin v. Dowd, 366 U.S. 717), and firmly rooted in the minds of all those within the courtroom (most significantly, the twelve white jurors) that Negroes are unqualified to sit and render justice over their fellow citizens (Strauder v. West Virginia, supra; see Cassell v. Texas, 339 U.S. 282).

The denial of a fair trial is still further evidenced by the illegal election of the trial judge, even under the Alabama Constitution, which requires the lawful election of a judge as a prerequisite to his exercise of judicial power. Yet, as the federal judiciary has recognized, the State of Alabama unconstitutionally deprives Negroes of their franchise. Alabama v. United States, 304 F. 2d 583, aff'd 371 U.S. 37. And the United States Civil Rights Commission has documented in detail the county by county exclusion of qualified Negroes from the Alabama electorate.

Such long-standing exclusion of Negroes from voting in elections for State judges insured that the Trial Judge, in whom was vested "justice" in the form of the "atmosphere of the court room", would reflect, as in fact he did, the prejudice of the dominant, white community that elected him.

In this atmosphere of hostility, bigotry, intolerance, hatred and "intense resentment of the . . . white community . . .," can anyone expect or believe that an all-white jury could render a true and just verdict? It is inconceivable that these twelve men, with the attention of the whole community of their friends and neighbors focused on them, would be able to give their attention to the complex shadings of "truth", malice, fair comment and to the nuances of libel per se, injury to reputation and punitive damages despite the absence of proof of pecuniary damages. These twelve men were not, in fact or probably in their own minds, a jury of "peers" of petitioners, but rather an instrumentality for meting out punishment to critics of the political activities of their elected City Commissioner.

The provision of Section 2 of the Fourteenth Amendment, providing for reduction in representation in the event of denial of the right to vote in a federal election or in the election of "the Executive and Judicial officers of a State" is, in part, an implicit recognition that those so elected cannot sit as representatives of those discriminated against, and, therefore, cannot claim full representation. (Cf. Baker v. Carr, 369 U.S. 186).

In the case at bar, the Trial Judge was not only passively elected by a dominant, prejudiced, white electorate; he actively participated in the perpetuation of white supremacy within the State courts of Alabama. At the very time Trial Judge Jones was considering petitioners' motions for a new trial, he stated in a companion libel case to this one that the Fourteenth Amendment was "a pariah," and inapplicable in proceedings in Alabama State courts which are governed by "white man's justice."

Given the cumulative pressure of all of these forms and techniques of emphasizing petitioners' racial inequality, it is clear that petitioners could not possibly receive a fair trial. The answer prescribes the remedy; for "the apprehended existence of prejudice was one inducement which led to the adoption of the Fourteenth Amendment", U.S. ex rel. Goldsby v. Harpole, 263 F. 2d 71, 81 (C. A. 5), cert. den., 361 U.S. 838; see also Shelley v. Kraemer, supra. Jurisdiction to redress flagrant violations of fundamental constitutional rights "is not to be defeated under the name of local practice" Petitioners properly presented numerous objections to all these violations of fundamental rights, to the segregated courtroom, the racial bias and community hostility which pervaded the trial, the improper newspaper and television coverage of the trial, the intentional and systematic exclusion of Negroes from the jury and from voting, the illegal election and improper qualification of the presiding Trial Judge and the ad hominem appeals of respondent's attorneys. Such abridgements of due process and equal protection were not and could not be waived, and, under established authority, are properly before this Court for review.

These violations are inherent and implicit in the trial transcript, and too obvious for this Court not to notice. And, they are shockingly manifest outside the transcript as well. For, three decades after the decision in Norris v. Alabama, supra, one need only read U.S. ex rel. Seals v. Wiman, supra, to learn that Alabama still excludes Negroes from juries; Alabama v. United States, 304 F. 2d 583 (C. A. 5), aff'd 371 U.S. 37, to learn that Negroes are still excluded from voting in Alabama. In fact, state enforced racial segregation is the rule for all areas of public and civil activity, a rule that will not, assuredly, be changed voluntarily by the officials of that state, if recent history is any accurate basis for prediction.

This Court has held repeatedly that violations of fundamental constitutional rights, which plainly appear on the record, are properly reviewable whether or not state "local forms" of practice have been complied with. Fay v. Noia, 372 U.S. 391; Williams v. Georgia, 349 U.S. 375; Terminello v. Chicago, 337 U.S. 1; Patterson v. Alabama, 294 U.S. 600; Blackburn v. Alabama, 361 U.S. 199; U.S. ex rel. Goldsby v. Harpole, 263 F. 2d 71 (C. A. 5), cert. den., 361 U.S. 838.

Moreover, where, as hereinabove shown, petitioners have raised objections as best they can, and have put the issues plainly before this Court, established authority requires review of these objections, even if they were not raised strictly in accordance with local forms of practice and procedural technicalities. Rogers v. Alabama, 192 U.S. 226. In Rogers, a Negro's objection to the selection of the Grand Jury, because Negroes had been excluded from the list of eligible persons, was stricken by the Alabama Court as not in statutorily prescribed form. This Court reviewed the objection and reversed the judgment below, even though it "assume[d] that this section was applicable to the motion," saying (p. 230): "It is a necessary and well-settled rule that the exercise of jurisdiction by this court to protect constitutional rights cannot be declined when it is plain that the fair result of a decision is to deny the rights."

Accord: Brown v. Mississippi, 297 U.S. 278, 285; Davis v. Wechsler, supra; American Ry. Express Co. v. Levee, 263 U.S. 19, 21; Ward v. Love County, 253 U.S. 17, 22.

As this Court held in Davis v. Wechsler, supra, at p. 24: " . . . the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice."

CONCLUSION

Petitioners respectfully submit that the headlong clash between the proceedings and judgment below and the United States Constitution as interpreted by this Court requires reversal of the judgment and dismissal of respondent's suit herein, in order to preserve and protect those rights which are the Constitution's greatest gift.

Respectfully submitted,

I. H. Wachtel,

Charles S. Conley,

Benjamin Spiegel,

Raymond S. Harris,

Attorneys for Petitioners.

1100 - 17th St., N.W.

Washington, D.C. 20036

Harry H. Wachtel,

Samuel R. Pierce Jr.,

Joseph B. Russell,

David N. Brainin,

Stephen J. Jelin,

Clarence B. Jones,

David G. Lubell,

Charles B. Markham,

Wachtel & Michaelson,

Battle, Fowler, Stokes & Kheel,

Lubell, Lubell & Jones,

Of Counsel.

APPENDIX B

Constitutional and statutory provisions involved

The constitutional provisions herein involved are the First, Fourteenth and Fifteenth Amendments to the Constitution of the United States, which read as follows: