Earl Warren: Dairy Queen, Incorporated, Petitioner, versus Honorable Herold K. Wood, et al. Mr. Egnal, you may continue your argument. Mr. Ooms, I beg your pardon, sir.
Owen J. Ooms: Mr. Chief Justice, Honorable Members of the Court, at the recess, we were having some colloquy with respect to whether in the question presented here, the breach of a contract involved a question of law or not. I believe, I may in the colloquy which Justice Frankfurter engendered some confusion. The question of whether the breach of a contract must be determined as to whether the plaintiff is entitled to relief or not does not necessarily involve a question of law. It is a question of fact that the Court may and must determine before it can grant whatever relief the plaintiff asks. Now, the fact that the Court must determine a question of fact is nothing uncommon or unusual. We find that in all and many cases of equity. If I may use a phrase and an illustration, if I alleged that a tort has been committed against me and file a suit to enjoin further torts, the common question of fact is whether in the first place a tort was committed. That still does not take it outside the purview of a cause of acton for the chancellor alone. Similarly, in a suit by one in possession of real property to acquire a title or to remove a cloud on the title, the court of equity may determine the legal title. There still is the common question of facts. In a suit for a specific performance of a contract, the court of equity may determine the making, the validity and terms of the contract.
Felix Frankfurter: Are you going to move on from there?
Owen J. Ooms: I have just one more simple illustration, Your Honor.
Felix Frankfurter: Now, before you move to another illustration, I'd like to ask you this.
Owen J. Ooms: Yes, Your Honor.
Felix Frankfurter: And I ask for information because I do not know. In view of -- in view of the Seventh Amendment, what do the cases tell us or tell me that doesn't know. Well, if you bring your suit for a specific performance and the answer is one that the so-called agent purported to make this contract for me had no authority. And therefore, there was no contract. And two, in the alternative for appropriate equitable reason, there shouldn't be specific performance. And I claim a jury trial for on -- my first defense as to both defenses can be pleaded on the modern loose or free or rational pleading?
Owen J. Ooms: That's right. The alternative pleadings may be employed, Your Honor.
Felix Frankfurter: Now, I suppose I make -- I put up those two defenses to your suit bill in equity for a specific performance. Challenge one, challenging the existence of the contract because the fellow purported to be my agent was my agent or -- and two on ground of equity, there shouldn't be specific performance.
Owen J. Ooms: Your Honor, there is a common question of fact to be determined in both cases. One, whether there is an existence of a contract, this is a question of fact and not law to be determined by this specific relief asked for their specific performance.
Felix Frankfurter: I'm just -- I'm -- I don't want theory. Not not the quality --
Owen J. Ooms: No, the -- the case is a --
Felix Frankfurter: -- I think we have to leave the theory as (Voice Overlap) --
Owen J. Ooms: Pomeroy.
Felix Frankfurter: I want to know whether this question has arisen under the requirement of the Seventh Amendment.
Owen J. Ooms: Specifically, I could not answer whether the specific illustration given by the Court has been.
Felix Frankfurter: To be divided into this case, isn't it?
Owen J. Ooms: No, it's -- it's closed. It's akin to it but not quite. Not quite, Your Honor. It's somewhat different. And the illustrations that I am quoting come from Pomeroy which Justice Stewart quoted in one of his decisions.
Felix Frankfurter: Well, does Pomeroy consider our problem namely what restrictions or what demands the Seventh Amendment makes for the right to ask for a jury in the federal court?
Owen J. Ooms: The Section on Pomeroy, which I am quoting from Your Honor, deals specifically whether one is entitled to a question of jury.
Felix Frankfurter: Yes. But is he dealing, what I want to know --
Owen J. Ooms: Under the Seventh Amendment.
Felix Frankfurter: Is he talking Seventh Amendment or is he talking English equity procedure? Which? They are very different as you well know.
Owen J. Ooms: I understand that Your Honor. And they -- he has been quoted in subsequent cases as under the Seventh Amendment which Justice Stewart did deal with in his opinion.
Felix Frankfurter: Of course, if it was settled -- if it was settled before the Constitution, before the Seventh Amendment that a particular question is on the equity side rather on the more side that is a gloss on the Seventh Amendment, I take it.
Owen J. Ooms: It might be but as I understand the cases Your Honor, they say that the Seventh Amendment did not in any way changed whether it is an equity question or a legal question.
Felix Frankfurter: That's what I just meant to convey in my offered advised.
Owen J. Ooms: Right. Now, what do we have in this case, Your Honor? We first must determine the breach of the contract. This is the question of fact which the trier must try. In terms of what the relief is asked and under all the cases, as I have been able to see it, as Judge Wood has said, this is an equity case. We have asked for injunctive relief for trademark infringement in the county and another injunction pendent lite for money is unjustly received to be paid in to the Registry of the Court.
Felix Frankfurter: Well, the fact that you ask, the fact that has suited as for equitable relief doesn't settle the question, does it?
Owen J. Ooms: Not necessarily.
Felix Frankfurter: Well, not --
Owen J. Ooms: You must look at the complaint in its entirety and the answer in its entirety. And there are always going to be questions of fact which necessarily do not mean they're questions of law. And the court of equity, the chancellor is in just as good at position to answer them as -- as a jury, if I might say, without violating the Seventh Amendment to the Constitution.
Felix Frankfurter: Nor can we take that test with the rules?
Owen J. Ooms: Pardon?
Felix Frankfurter: Nor can we take that test whether the judge -- justice capable of the jury.
Owen J. Ooms: No, I don't think that's --
Felix Frankfurter: You might have (Voice Overlap).
Owen J. Ooms: That's an ultimate test at all. Let me, in conclusion because I see my time is rapidly coming to an end, Your Honor, state that and read from what the -- Judge Wood found and stated what the complaint involves. The complaint seeks in effect a declaration that the licensing contract is null and void and accounting of profits illegally obtained by the defendant since 1942 to date and a permanent injunction restraining the defendants from any use of plaintiff's trademark. Now, what do we have here as it is presented here? A preliminary injunction was granted December 28, 1960. On March 1, this defendant came in after he felt the ill win of the chancellor's viewpoint as to what was involved here. And we obtained a preliminary injunction. What he is seeking here now is to get a new trier of the facts and further delay for his final day of accounting. Your Honor, under these circumstances, we ask the Supreme Court here to invoke Rule 562 that is set forth on page 56 of the Court's rules. Thank you, Your Honor.
Michael H. Egnal: Mr. Chief Justice, may it please --
Earl Warren: Mr. Egnal.
Michael H. Egnal: I think Mr. Justice Frankfurter that your question may find an answer in a case cited here by the respondent on behalf of this plaintiff in Chappell which is a case that came out of the First Circuit. In that case, the opinion, as I recall, it indicated -- excuse me -- that a question as to whether or not a contract was made is a question of fact that would be determined by a jury. Now, it seems --
Felix Frankfurter: What's the case?
Michael H. Egnal: Chappell versus Palermo.
Felix Frankfurter: You mean, Mr. Ooms cited the case --
Michael H. Egnal: He cited that case.
Felix Frankfurter: -- put him out of Court?
Michael H. Egnal: I beg your pardon sir?
Felix Frankfurter: Are you suggesting that Mr. Ooms cited the case put it out of court?
Michael H. Egnal: Well, that's what the case does indicate.
Felix Frankfurter: Is that the only case that you know of?
Michael H. Egnal: Well, we sought --
Felix Frankfurter: It's strange that this should have been written before that there isn't a specific answer to my question because I should think it -- it must be a frequent occurrence that when specific performances sought, you challenge the justness of a contract because of lack of agency of the agent.
Michael H. Egnal: Well, it may be that this is more or less regarded as hornbook because --
Felix Frankfurter: Everybody that you'll leave it. So what would be the case?
Michael H. Egnal: It would seem that way.
Felix Frankfurter: That these four judges below didn't, did they?
Michael H. Egnal: No. Now, it seems self-evident in this case that Mr. Ooms, with an awareness of the fact that his demand in the complaint for the balance due under the written contract creates a legal course of action is attempting to obscure that. But, I think, Your Honors will find that the complaint in itself says that rather specifically and Judge Wood below understood it quite clearly because in his opinion, which is at page 36 of the record, he said in clear language, “Incidental to this relief, the complaint also demands the $60,000, now allegedly do and owing plaintiffs under the aforesaid contract”. And we took his phrase of “incidental to this relief” to mean that he was giving it a subordinate position that the dominate phase of the case in his opinion was equitable. And we submit that this is where Judge Wood erred in not accepting the teachings of Beacon that regardless of what evaluation, the two courses of action should be given, if there was present illegal course of action which he recognized, this defendant was entitled to a jury trial. Now, I'd like to conclude with just two short paragraphs. It seems to me that in Beacon, where you had two separate courses of action, one equitable, one legal, and this Court denied the right of the -- of the court below to postpone the trial of the legal course of action as a deprivation of the rights under the Seventh Amendment and in Thermo-Stitch, which followed that in the Fifth Circuit where you had two independent courses of action, one legal and one equitable, in which the same result was imposed. We come to our case which seems to be even more compelling because in this case, it seems to me we have a legal course of action and an equitable which are dependent. It seems to me that there can be no equitable relief in this case until this plaintiff has established the legal course of action because this case being heard by a jury would first determine whether there was a breach of the contract, whether any sums were due under the contract.
Felix Frankfurter: Does this question of jury or not jury have to be determined initially on the -- on the pleadings or later stages? Because, if -- if the question is raised on the pleadings, then the plaintiff in the suit doesn't have to establish existence of a contract. He alleged it and the denial of the existence comes from the defendant. And therefore the plaintiff can prove this case without -- just on his inequitable demand.
Michael H. Egnal: Accepting that, Mr. Justice Frankfurter, you get then to the question of fact which is common to both his position and the defendant's position.
Felix Frankfurter: But you don't mean to suggest of every question of fact that may arise in an equity suit when you try and it's hard to think of an equity suit in which questions of fact do not arrive has to be sent to a jury.
Michael H. Egnal: No, sir.
Felix Frankfurter: The chancellor made call in the jury to aid him. Their determination is just advisory when he does.
Michael H. Egnal: Yes, sir.
Felix Frankfurter: And I can't imagine along with the Seventh Amendment every time a question of fact arises in an equity suit, you have to summon the jury.
Michael H. Egnal: I agree with that, sir.
Felix Frankfurter: Therefore, saying there's a question of fact doesn't take you very far from here.
Michael H. Egnal: No, sir. I should go on and say where the question of fact involves an issue which is a legal course of action. And the legal course of action in this case is that demand for the --
Felix Frankfurter: Then my question, if I make a deal with that, then if -- if a question is raised by the defendant that the agent exceeded his powers, you think then you'd have to summon the jury for a jury determination.
Michael H. Egnal: Yes, sir.
Felix Frankfurter: Do you?
Michael H. Egnal: Yes, sir. For the reason that that this question of fact, if it is left to the chancellor, would -- would be in the nature of a res judicata or an estoppel that would determine a legal course of action without a jury trial.
Felix Frankfurter: Well, but every determination of fact by the chancellor has the term or is -- is the basis for res judicata. I don't see that that helps me much.
Michael H. Egnal: I think that, as I read the cases, the distinction is not whether there is a question of fact but whether the questions of fact are involved in an issue that make out a legal course of action or to put it in a converse that do not, in anyway, fall within the scope over either equity or admiralty.
Felix Frankfurter: Or take -- take proceedings brought by a corporation where specific performance of reformation of a contract or whatnot in almost every such case, a proper corporate proceeding may come an issue in fact that challenge do come an issue. Was there a meeting of directors? Did the directors have powers as inappropriate minute et cetera, et cetera, et cetera? Now, those issues, if the corporation didn't act according to the requisite form or corporate procedure, the plaintiff is out but the defendant is out in his -- in his defense. Now, what bothers me to get some guidelines to find out when a jury must be summoned or when the jury may be summoned, must be the Seventh Amendment chan -- made the chancellor's judgment.
Michael H. Egnal: Well, apparently, if the question is closed, the -- the chancellor or the jury -- the Court must favor the implementation of the Seventh Amendment. Now, if there is a clearly an equitable course of action that involves questions of fact, I would say that a jury trial would not be available and in the cases that have preceded this.
Felix Frankfurter: Are you saying anymore than money is in doubt, you better have a jury trial because the Supreme Court may reverse it? Is that what you're saying?
Michael H. Egnal: I'm -- yes, sir. I'm saying that because --
Felix Frankfurter: -- that doesn't give me -- that doesn't enable me to say to decide or I should think about this matter.
Michael H. Egnal: Well, I would say --
Felix Frankfurter: I again just say where it had been bettered just would've called the jury? I think it would've been. We would have this argument here.
Michael H. Egnal: Well, I would say that if this case did not have present, what appears in the pleadings and from the judge's opinion that in this case, the plaintiff is seeking to recover $60,000 which admittedly is an action for debt.
Felix Frankfurter: Yes. But there has been no contract at all, equity can, in addition to giving its impersona relief saying mustn't do this in the future or should say you've been unjustly wrong, unjustly and unjustly enriched and walk out.
Michael H. Egnal: Well, I think in that --
Felix Frankfurter: You wouldn't have to -- you don't have to call a jury.
Michael H. Egnal: No, sir.
Felix Frankfurter: Because equity is going to give a money -- an incidental money damage.
Michael H. Egnal: No, sir. Now, I think that that may point out the distinction. And, I think you've mentioned that in your question yesterday. Whether this particular demand for the $60,000 as empty seat where if in this case the defendant was a wrongdoing ab initio and it was sort to restrain further acts, equity would have jurisdiction and if the consequences of that were to make for damages as there would be no right to a jury trial but this case is distinguished by the sequence in reverse. In this case, the plaintiff is saying, you breached the contract by not paying me $60,000. And because you owed a $60,000, having established that, I want the Court to enjoin you permitting for the rights under this contract. The complete reverse of what might be an equitable course of action.
Felix Frankfurter: Suppose, he hasn't asked for money damages in this suit, what would the situation then be? Or if he said that I'll leave that for another day?
Michael H. Egnal: Well, if he had said that in his initial complaint.
Felix Frankfurter: He said that, it once was a -- just as by way of a recital, a way of exhaust in the beginning, by way of -- of certain reasons. He says there once was a contract and no longer is a contract, therefore I have no business to use my trade name and he's engaged in unfair trade practices, I want him enjoined.
Michael H. Egnal: Alright. Now --
Felix Frankfurter: And you reply and say “yes”, the contract is still subsisting. Now, would that be a jury trial in that case?
Michael H. Egnal: I would say yes for this reason that the cases indicate that the -- the consideration must be given to both the complaint and the other pleadings in the case. In a -- in a -- in a Beacon, the consideration was given to the complaint, the answer the counterclaim in the course of action in the Thermo-Stitch to the complaint similarly.
Felix Frankfurter: Well, in Beacon -- in Beacon, you had an acknowledged action at law joined with an action in equity. And, the question was whether the District Court, as I understand it, the District Court would say, “Well, I'll deal with the equity problem first,” isn't that right?
Michael H. Egnal: Yes, sir.
Felix Frankfurter: That's all there was.
Michael H. Egnal: That's correct, sir.
Felix Frankfurter: You rather --
Michael H. Egnal: -- But in --
Felix Frankfurter: -- conceded action at law requiring a jury trial and that involve in the main to be at least the question of what discretion you should leave to the trial judge. This is a very different problem.
Michael H. Egnal: Yes, sir.
Felix Frankfurter: More confusing to me.
Charles E. Whittaker: Mr. Egnal.
Michael H. Egnal: Yes, sir.
Charles E. Whittaker: May I ask you, please?
Michael H. Egnal: Yes, Mr. Justice Whittaker.
Charles E. Whittaker: I -- do I understand -- do I correctly understand that the petitioner here -- the plaintiff is bound by the prayer used to complaint and does not it seek merely an injunction and an accounting and an award of whatever is found due upon the accounting as do that to prayer on page 15 of the record? Now, is there anything illegal there? You do not deny, as I understand it, that there was a contract. I understand your claim to be and your answer that the contract was modified.
Michael H. Egnal: And subsisting.
Charles E. Whittaker: But still subsisting?
Michael H. Egnal: Yes, sir.
Charles E. Whittaker: Now, then under the prayer on page 15 doesn't -- isn't it true that what is asked is an injunction and an accounting and for the payment into the Registry of the Court of any that was found to be due on the accounting?
Michael H. Egnal: Yes, sir. That -- that is --
Charles E. Whittaker: Under the contract whatever it is.
Michael H. Egnal: That is correct, sir.
Charles E. Whittaker: Now, where -- where is the legal -- legal in the jury issue?
Michael H. Egnal: Yes, sir. To answer the first part of your question, Mr. Justice Whittaker, I don't think the prayers are controlling because under our Rule 54 (c), if during the trial of the case, it should appear that there is facts to support a judgment. Irrespective of the prayers, the Court would have or the jury would have the right to find that kind of a judgment. I think the prayers are merely in an advisory category. However, this prayer does throw light on what the plaintiff is seeking. The preliminary paragraphs in the complaint of where the failure to pay the $60,000, they call attention to the fact that it was because of the refusal to pay the $60,000 that this action was instituted. You can see that from the letter of cancellation, purported letter of cancellation which is Exhibit C on page 27 in which they said this letter is to advise you that your failure to pay the amounts required in your contract then further, unless it's completely satisfied to the amount due and owing. So, I say that upon a consideration of the complaint and the prayer, this is seems to be on unequivocally a demand to recover from this defendant $60,000 which is the balance, according to the plaintiff's position, now due and owing -- and due and owing under the contract. And Judge Wood found that that was so.
John M. Harlan II: What is the basis on which they claim the $60,000? What do they allege you have done to entitle them to $60,000?
Michael H. Egnal: The issue there is their repudiation of what we contend was the oral agreement made in January of 1955.
John M. Harlan II: What does that mean? Do they claim that you breached or abided by your contract?
Michael H. Egnal: They claim that we didn't make the payments in a strict accordance with the written contract.
John M. Harlan II: Strict accordance with contracts?
Michael H. Egnal: With the written contract.
John M. Harlan II: And I, suppo --
William J. Brennan, Jr.: Per year?
Michael H. Egnal: Five minimum per year.
William J. Brennan, Jr.: That they say you have not paid it and were at fault under the original --
Michael H. Egnal: That's correct, sir.
William J. Brennan, Jr.: -- that's the amount of $60,000.
Michael H. Egnal: And that totaled to approximately $60,000. We had paid $90,000 by making four -- the first four years, we've paid the minimum of $18,625.
John M. Harlan II: I suppose instead of couching that complain and the prayer and the language they did and it simply said that it were the truth in the proceeding that you have breached your contract to their that you needed an accounting because they didn't know exactly what you got and what you're going to get, so that in addition to suing you for the breach of contract, they wanted to supplement that by common lawsuit but an -- equitable accounting. Would you say that that would give them a right to file the breach of contract issue because they later wanted to collect their money by either to discover an equity together?
Michael H. Egnal: You mean, try that just before a chancellor alone?
John M. Harlan II: Yes. Does it make any difference that they in collecting the money which they alleged to use them because of the breach of contract, they also wanted an accounting in order to forbid you to do some things in the future by injunction?
Michael H. Egnal: No, sir.
John M. Harlan II: That's separate and distinct, was it not?
Michael H. Egnal: Yes, sir. Now, the one is superimposed on the other. And our position here is that you can't get to the other until they've established that claim.
John M. Harlan II: Your argument is that if we follow the Beacon case --
Michael H. Egnal: Yes, sir.
John M. Harlan II: It was the duty of the Court first to try that issue which was plainly an issue if breach of contract which traditionally has been a common law of cause of action.
Michael H. Egnal: Yes, sir.
John M. Harlan II: Before they -- that they shouldn't have exercise discretion in connection with the other. Isn't that about what you've said in the Beacon case?
Michael H. Egnal: Yes, sir. And you said it in ringing terms and your descending opinion in Galloway. Now, it would have been a simple matter here to proceed with the trial of this case before a jury because if there was any equitable relief available to this plaintiff, it could've been afforded in the -- in the single proceeding.
William J. Brennan, Jr.: Does the (Inaudible) asked for money that's additional to this $60,000?
Michael H. Egnal: Well, as we read the complaint, that would be a fair inference. That in addition of a $60,000, they are reaching out some place for alleged damages which would come after we've been establish as a wrongdoing.
William J. Brennan, Jr.: (Inaudible)
Michael H. Egnal: Well, along the theory that -- that this is a little hard for us to comprehend because the total consideration is $150,000 if we pay that. It seems to me that all of the rights have been satisfied but they think there might be something in addition to that.
John M. Harlan II: Could that be in the nature of a tort, wouldn't it?
Michael H. Egnal: Yes, sir. That would --
John M. Harlan II: -- Something like a malicious interference with contract or --
Michael H. Egnal: Yes, sir.
John M. Harlan II: -- maliciously interfering with their patent rights or their copyright rights or trade -- trade rights?
Michael H. Egnal: Yes, sir. And that would come at the -- at the terminal end of a case. As a matter of fact, they did go in with a motion for preliminary injunction which is not part of these proceedings and got such relief as the chancellor thought they should've gotten which was at minimum. Thank you very much, sir.


Warren E. Burger: We'll hear arguments next in Cantrell against Forest City Publishing. Mr. Sherman, you may proceed whenever you're ready.
Harry Alan Sherman: Mr. Chief Justice and members of Court. May I address myself as quickly as possible to the nature of the case. This is an invasion of privacy and may I respectfully suggest that it's an invasion of four types of privacy in one continuous event or series of events. Although this is a contradicted by the circuit Court of Appeals, I believe I will point out that they are in error and by the brief of my distinguished and friendly opponent. The facts in this case are briefly these. The Silver Bridge, which was a span crossing the Ohio River from Point Pleasant, West Virginia to Colnago, Ohio and owned by the State of West Virginia collapsed on December 15, 1967 and 46 persons lost their lives in that disaster. One of the people that was a victim of the collapse was Melvin Aaron Cantrell, the deceased husband of Margaret May Cantrell, the widow who brings this action. None of the seven children of the Cantrell's was anywhere near the collapse of the bridge and was not involved in any of the news story that naturally followed that disaster. The period of time between the collapse and the publication of the story, feature article, not a news story, was about eight months, just a little short of eight months. A reporter of the Plain Dealer for City Publishing Companies paper and a young photographer came to the premises which incidentally were seven miles of a highway of a main highway. They had to cross a quarter of a mile of private land to get to the residents on the day of their visit. They were not invited. They were not -- they did not notify anyone that they were going to come on to the premises. They walked into the living room door when the young fellow, 13 years old saw men walking across there land open the door to look out to see and they walked right in. This is the testimony of our plaintiff's witnesses; that is David Cantrell and the photographer Conway, one of the defendants, admittedly took 50 pictures. Now in an hour to an hour-and-half, now he took more that didn't come up but 50 that came out, this is admitted, so he was very busy taking pictures. Eszterhas the reporter supposedly talked to the older of the children in the house. What he said nobody knows because he never showed up at depositions, although he was noticed twice. He was not at the trial and did not testify. Conway testified that he did not ask any questions and he said the arrangements for him being in this private residence, he presumed were made by the city desk or the reporter, he had nothing to do with that. So that we have nobody from the defense testifying as to the contents of the story which was a feature story. Admittedly, several pages of a Sunday supplement magazine section of the paper with a little over 400,000 in circulation, several of this photographs that were taken like Conway on the visit were rather large. They're in Exhibit II accompanied the article and showed that children all in the very, very pathetic like, all bear foot, all dirty bedraggled, all at home, the mother wasn't there. The mother had not known that anyone was to come to their premises, did not invite anybody, did not agree to any interview of her children age two to 16 at that time, and they were told immediately that is the reporter and photographer as they walked into the living room that mother wasn't there, they didn't know when she would be back and the story was written as if on interviewing Mrs. Cantrell, even describing her pathetic appearance which is completely fictionalized. They were a great number of false statements in the article. Now, of course it so and aroused the community that there was an article printed in a Dayton publication exposing the fallacies, the falseness of the article that was printed in the Plain Dealer.
Potter Stewart: Dayton, Ohio?
Harry Alan Sherman: Yes Your Honor.
Potter Stewart: Those hardly the community.
Harry Alan Sherman: No, no, I beg your pardon. It was a Dayton paper however that wrote this --
Potter Stewart: Story from what --
Harry Alan Sherman: The story about the community's reaction to the article, and that's an evidence if Your Honor please in Volume II. So that the suit was brought as an invasion of privacy action, and of course the issues presented briefly are these. I set them forth in more detail in my brief, but first, when we when into trial, it was made clear that we were not trying a defamation or libel suit. We were trying an invasion of privacy which incidentally involved also a publication, and Judge Krupansky made it very clear that it was not only the false like publication which was the basis of this action that Page 99 of the Volume I of the appendix at the top of the page, district Judge Krupansky said it is the conduct of the parties prior to and at the time of the incident that gives rise to the issues in this case.
William J. Brennan, Jr.: And he went on then to --
Harry Alan Sherman: Yes.
William J. Brennan, Jr.: -- instructed the Time and Hill elements --
Harry Alan Sherman: Your Honor --
William J. Brennan, Jr.: -- can be established --
Harry Alan Sherman: He was really, not so sure as to what the law he had to apply in view --
William J. Brennan, Jr.: I know, but right following what he --
Harry Alan Sherman: But he did apply Time versus Hill because --
William J. Brennan, Jr.: I knew, and there was no objection to that, was it?
Harry Alan Sherman: As long I got to the jury in that court, I didn't object to anything.
William J. Brennan, Jr.: But you prevailed before the jury?
Harry Alan Sherman: Yes Your Honor. We -- on special verdicts suggested by Mr. Warder, I was not even pres --
William J. Brennan, Jr.: But even under the Time and Hill test --
Harry Alan Sherman: Yes, yes.
William J. Brennan, Jr.: -- you prevailed on the evidence?
Harry Alan Sherman: Yes, reckless, disregard as to the truth or falsity as the only basis for our recovery and the jury found that it was so. Now Your Honor it's very important -- in the first place, I want to tell you the issues first and then come back if you don't mind Mr. Justice Brennan. The second issue is this –
Harry A. Blackmun: Mr. Sherman, before you do that --
Harry Alan Sherman: Yes Your Honor.
Harry A. Blackmun: There was a directed verdict as to a number of the minor plaintiffs --
Harry Alan Sherman: Yes.
Harry A. Blackmun: And why did they go out and one remained in?
Harry Alan Sherman: Well Your Honor, Judge Krupansky found that as a matter of law, these children were too young to know whether they were hurt, whether they have any interpersonal feelings about the invasion of their privacy, and therefore since we --
Harry A. Blackmun: Well, he left William in, didn't he?
Harry Alan Sherman: William -- David William was 13 at that time and he testified how he was hurt Your Honor, the others were too young to testify. So, he was actually a witness in the case and I think a critical witness.
Harry A. Blackmun: Well, Lolita Sue was 17.
Harry Alan Sherman: Yes. She was 17 and he just -- she was -- he left them out and I was afraid to argue and carry that point up because on the question of damages and what's be strictly a real seriously legal question in our minds. I discussed it with Margaret Cantrell. We decided to let well enough alone without clouding the record of the issue on any other aspect of the case. We were not allowed to go to the jury on punitive damages which I felt we might well go on the basis of the trespass, preceding the publication. However in view of the judge's as strong feelings that New York Times versus Sullivan and all the other cases that came down since then that once it's published, we're running into Freedom of the Press as expanded by the Supreme Court's decisions and there was -- he was weary of allowing us to go into any punitive damages. So, we were confined of actual damages and the jury verdict was $60,000.00, 45 for the mother; 15 for the boy. The next issue that I'm raising is in such a case where we are really basing our concept of the case on the Supreme Court decisions, especially in Katz versus United States where this is -- we have the evolving law of privacy at the state level, and we are on a diversity basis. Aren't we entitled to a Seventh Amendment right to jury trial to make a determination of the issues of fact? And that's one of the issues that I raise on the appeal, and the last one -- and this one, I think is devastating when the Sixth Circuit says that when there is a conflict between the right of privacy admitted and the Freedom of the press, the right of privacy must give way to Freedom of the press because right of privacy is mentioned in the constitution, and Freedom of the press is, this is the wording of the court. So that that's another issue that I raise and I believe in all fairness to my opponent, I should tell you the issues as the respondents have raised them. First of all in their brief in opposition to the grant of certiorari, they raise one question, should certiorari be granted in an action for invasion of privacy based upon the publication of an article concerning a matter of public interest where the lower courts correctly applied the constitutional standard in accordance with the controlling cases of this Court, and where the lower courts found no evidence of known falsity or reckless disregard of the truth? Now, that's not the exactly what the court found. The Court found no malice. The jury found that there was a reckless disregard, but then in their brief, they say very simply, does the First Amendment protect publication of a non-defamatory newsworthy article from a claim for false light invasion of privacy absent proof of calculated falsehood? Now Your Honors, I point out that no one decided that there was any newsworthy where article here. Although the Sixth Circuit points out that the difficulty for courts in deciding what's newsworthy saying that the editors, the publishers should primarily be the judges as to what the newsworthy. But the editors and publishers in this case not one word was spoken in evidence or anywhere in pleadings that this was newsworthy. It wasn't newsworthy. There was no news article, no news event. They admitted it was a creative feature article written by a smart young writer who made good copy and that's all it was to it.
Potter Stewart: That concept is almost self-defining, isn't it?
Harry Alan Sherman: Yes Your Honor.
Potter Stewart: If it's printed in the newspaper, some editor has decided that it's newsworthy.
Harry Alan Sherman: May I respectfully --
Potter Stewart: -- it's not for the courts to review that judgment; it's a self-defining concept, isn't it, it's in the newspaper so its newsworthy?
Harry Alan Sherman: Mr. Justice Stewart, I was a newspaperman and an editor for 16 years, and may I respectfully say sir that that is just not the way they look at it. Feature articles are completely one category of publication with all the protection of the First Amendment rights to feature articles and the creative literature; there is no question about that, but newsworthy? No Your Honor. There is a definition of news and there is a definition of newsworthiness and the Supreme Court of the United States has made that definition very clear as I point out my reply brief if Your Honor please in the classic case that it was decided here between International News Service and Associated Press. There was a definition; news belongs to the public, news is not the property of anyone and the feature articles are protected, literally writings are protected, copyright laws and all the other things that go along with it. We have very definite distinction in the field of journalism as between editorials, news, feature articles, so that -- and entertainment and other features of a publication. Now Your Honor, I'm not saying that the broad basic constitutional right does not apply to all, but as far as news is concerned, I think that the primarily purpose of the First Amendment is to protect the public's right to know events and shape their thinking and judgments in accordance with the events that shape the news so to speak. Now --
Harry A. Blackmun: Mr. Sherman?
Harry Alan Sherman: Yes Your Honor.
Harry A. Blackmun: Did you say you filed a reply brief?
Harry Alan Sherman: Yes Your Honor. Yes, there's a -- I'm sorry. There's a reply brief Mr. Justice Blackmun.
Speaker: (Inaudible)
Harry Alan Sherman: Immediately.
Harry A. Blackmun: I have one, but --
Harry Alan Sherman: But a week after I got their brief.
Warren E. Burger: Well, while you are pausing here for a moment --
Harry Alan Sherman: Yes Your Honor.
Warren E. Burger: -- is there not a some kind of the – or is there some kind of a public interest in the consequences of a great tragedy of this kind, 46 people killed. It might in turn have an impact on legislature, governors, mayors; everyone else to see that old bridges are replaced for example and/or kept in repairs so that these tragedies aren't repeated. Is that in here somewhere?
Harry Alan Sherman: Mr. Chief Justice, ideally, it certainly should be ideally, practically, I'm the attorney also that's trying the Silver Bridge death cases in the State of West Virginia and they got a new bridge, but that's over the hill, and now they're just on with regular business. They don't -- these things are not remembered. The rights, if any, must be intact in the judicial process or -- they're forgotten until another tragedy occurs.
Warren E. Burger: Are they not remembered perhaps a little more if someone writes about them?
Harry Alan Sherman: If they write this way, if they write the way these fellows did, no, because they're calling him Hill Billy's people that had nothing to live for anyway. They had wives and children, but that's all they had, that's quote from the article. Hill Billy's bury their dead, the Hill Folk bury their dead, and to us -- to a Cleveland audience to Metropolitan audience outside the hills of West Virginia, no Your Honor. I respectfully say that the history of these things show that interest, this personal interest is the curiosity of the satisfying of one's own reading appetites but not in doing anything to protect the poor folk that were the victims of the tragedy of this sort. We have to depend on justice, not history to correct its own errors, and especially when we have to look to political changes in order to affect such history. We can't wait for the democratic process to enlighten all our populous that serves on juries for example. But Your Honor, I'm sorry, I went perhaps beyond in my philosophical statement to add on this question. Nothing of that sort specifically was brought into the case as such except in the answer where they did raise public interest as one of the privilege basis for printing, okay? Now, there's no question that there could be a legitimate public interest in the truth and I would subscribe to that of course. There might be a very, very definite way of actual interviewing Mrs. Cantrell. The interesting thing in this case is that the reporter who never showed up to explain why he went there uninvited and a new theory was interjected on the trial. This absent reporter all of a sudden becomes a man who is free lancing. Now, there was no affirmative defense that there was no employment. There was an admission that there were unemployment in the answer, then, all of a sudden on trial, he's free lancing to separate the publication on the publisher from the illegitimate trespass of the reporter.
Warren E. Burger: Well, but then that defense if you could call it that didn't seem to have much impact on the juries, so it isn't the factor --
Harry Alan Sherman: Because Your Honor, because Your Honor I happened to have taken the deposition of Conway who clearly -- well, he talk one way in court, but the deposition just destroyed his credibility because he said he got authority from the city desk, and he was working as -- he was taking pictures not for Eszterhas, but as photographer for the Plain Dealer; that's what he was doing there. And therefore Your Honor, a credibility was an important element in the determination of the jury, and that's of course I think fact finding as to -- is for the jury as my -- a very strong and --
William J. Brennan, Jr.: Mr. Sherman, if I don't interrupt you --
Harry Alan Sherman: Of course Your Honor.
William J. Brennan, Jr.: -- would you help me with something. In the Court of Appeals opinion at page 125 --
Harry Alan Sherman: Yes.
William J. Brennan, Jr.: -- notwithstanding what we saw earlier as to the instructions that were given at page 99 --
Harry Alan Sherman: Right.
William J. Brennan, Jr.: -- there is his statement at the bottom of the page in the present case, the district judge made a finding that there was no evidence to support the claim that an invasion of privacy was done maliciously within the legal definition of that term, and over the next page, having correctly determined that there was no evidence of known falsity or reckless disregard of the truth, district Court should have granted the motion for direct to verdict as sole defendants. Now, where -- I can't seem to find in this record, where is there any District Court finding that there was no evidence?
Harry Alan Sherman: There was a District Court denial of our right to punitive damage on the basis of no malice and all, that is --
William J. Brennan, Jr.: What kind of malice, New York Times malice or --
Harry Alan Sherman: Yes.
Byron R. White: Or was that state malice?
Harry Alan Sherman: No, it didn't say.
Byron R. White: It makes a lot of difference.
Harry Alan Sherman: Yes. Well --
Potter Stewart: And I should think your case here would be Mr. Sherman that the trial court instructed the jury precisely in terms of Time versus Hill, and that the jury brought in its verdict and that's the end of the matter?
William J. Brennan, Jr.: Unless there was no evidence to support the finding of Time and Hill malice?
Harry Alan Sherman: Except in Time versus Hill, you would have only the publication had no invasion, no trespass, no -- nothing like that --
William J. Brennan, Jr.: But that's my point Mr. Sherman. The point is I just don't know where there's any finding that there was no evidence and it seems --
Harry Alan Sherman: No, he does make such a finding.
Byron R. White: But where is it in the records that he denied your right to punitive damage, where is that? I don't find in the printed record and --
Harry Alan Sherman: It's in the printed record if Your Honor please.
Potter Stewart: It's there but there's no plaintiff --
Harry Alan Sherman: I beg your pardon.
Potter Stewart: -- page 117.
Harry Alan Sherman: A hundred and --
Byron R. White: Let me ask you, in your faith doesn't punitive damage depends upon the traditional kind of malice of the old will, an intent to do wrong? Isn't that what's malice used in libel cases?
Harry Alan Sherman: Yes Your Honor, that's exactly it is. In other words, whether it does harm or not --
Byron R. White: The will --
Harry Alan Sherman: -- unless you can prove that there was some motivation to do harm, no malice as such.
Byron R. White: But that's different, if that's a different kind of malice, then the New York Times comes out.
Harry Alan Sherman: Yes.
Potter Stewart: That's right.
William J. Brennan, Jr.: And you have to prove New York -- or Time and Hill same thing kind of malice even to get compensatory judgment, irrespective of punitive damages, and you got one --
Harry Alan Sherman: Yes.
William J. Brennan, Jr.: -- and he refused to set it aside certainly implies that he thought there was evidence enough to support the finding that he told the jury they must find --
Harry Alan Sherman: Yes.
William J. Brennan, Jr.: -- and yet the Court of Appeals -- he made a find, there was no evidence?
Harry Alan Sherman: Well, there is no such finding and may I –-
Potter Stewart: That is in quotation marks in the -- on page 125.
Byron R. White: That's right.
Potter Stewart: I cannot find it either.
Harry Alan Sherman: Within the legal definition of that term.
William J. Brennan, Jr.: It only goes on I gather --
Harry Alan Sherman: That's about the extent of the quotation within the legal definition of that term.
William J. Brennan, Jr.: Oh, he imputes at the top of page 126 having correctly determined that there was no evidence of known falsity or reckless to disregarded the truth, that's the Time and Hill standard. The District Court should have granted the motion for direct to verdict.
Harry Alan Sherman: He made no such finding Your Honor. It's absolutely no such finding.
William J. Brennan, Jr.: Maybe your colleague will tell us where --
Harry Alan Sherman: And I'm sorry I can't -- I was sure I had that everything cataloged, but I just can't find it quickly enough.
Byron R. White: I suppose the transcript is here isn't it?
Harry Alan Sherman: Yes Your Honor. This is -- the total a trial is in Volume I.
Byron R. White: There is no other -- this neither the predicament?
Harry Alan Sherman: Except Volume II exhibit, that's right.
William J. Brennan, Jr.: This is all the evidence?
Harry Alan Sherman: Yes Your Honor, and there's -- you'll find that this was a case that was right down of the bone, there was no fan on it. It simply had to -- we had to avoid the arguments on what whether the judge said this is it, this is harmless and letting it go to the jury and only this -- alright, what am I going to do? Anyway Your Honors, I feel that there is one thing that really has to be aired, and that is this. The second issue that is raised by the opponents that Mrs. Cantrell in effect waived the trespass, there is no such thing. She was asked a specific question by my distinguished friend here at page 35 of the record. In cross-examination, he said -- the Sixth Circuit says that she said these things, but it isn't, it's in the question, that's a double question and this is a woman, remotely hills of West Virginia without any education. So isn't it fair to say Mrs. Cantrell that you objected to the Plain Dealer article not because of the publicity, but because of what it said? Answer, yes sir. Now, which question is you saying yes sir to? There's only one -- the publicity is the article and what it says is the article, yes sir. And they say because he implies that she didn't object to the publicity as distinguished from the article that therefore that was somehow a waiver of the trespass, and the Sixth Circuit says specifically that the man might have been guilty of a trespass, but the case went to the jury only as a false light trespass on the publication; it did not. Page 102-103, as well as 99 which I pointed to Your Honors before, the case went to the jury as total package. All the evidence went in on the basis of the intrusion of this young man into the home without any explanation or justification.
William H. Rehnquist: Mr. Sherman, this was a diversity case?
Harry Alan Sherman: Yes.
William H. Rehnquist: Were you proceeding under Ohio law of privacy or West Virginia law?
Harry Alan Sherman: Both, they're the same.
William H. Rehnquist: They're the same?
Harry Alan Sherman: It's admitted that they were the same. And of course now, there is at this point especially since Your Honors have decided the Gertz case and I studied that in it’s totality because I am learning as everybody else is learning in the United States, especially your lower court judges as to where we go from here on some of these cases which the common law is always made rather solid. I want you to know that we got exactly and [Laughter Attempt] only what was granted as a compensatory award for paying something. Here, we have three years after the event, Mrs. Cantrell is in the court room and she is asked about the effect on the children, they come home crying and so forth and she is embarrassed, everywhere she turns and how long did that go on? It still goes on three years later. Now, that a 400 and some thousand publication of a newspaper and these remote people, you can't get anymore private on the hills of West Virginia if Your Honors please. And here is a family that had enough tragedy in its life, and she has problems raising seven children and she is doing well, very, very proud lady and working as waitress in the restaurant and doing well, asking nothing of anybody, refusing welfare and so forth. And while she is away at work, her family is intruded upon and is exposed, hung up to dry because some young enterprising creative fiction writer decided to make a microcosm out of the Cantrell family's experience for all the world to believe that all of the families had the same result. Now may I in closing just call Your Honors' attention to the very important case, Stanford versus States of Texas, where the Supreme Court points out very definitely the history of how we got personal liberty before the constitution, how we got privacy before the constitution and the two English cases. And here which wiped out writs of assistance and similar warrants that gave broad authority to the ages ago into any body’s home and search for evidence and to deny any privacy to anybody, and here where the Sixth Circuit Court in 1974 cowed by what the law had become under the confusion following the New York Times versus Sullivan. I respectfully say that was only that granting a license to private reporters and photographers, the second word is even more ominous than the first, to do the same thing that was wiped out 200 years ago before we became a nation and let them have any access without any answerability in damages in the court of law in the United States. Thank you Your Honor.
Warren E. Burger: Thank you Mr. Sherman. Mr. Warder?
Smith Warder: Mr. Chief Justice and may it please the Court. I think the passage that the Court wants is found on page 60 of the appendix where the trial court finds there has been no evidence in support of the charges that the invasion of privacy if in fact an invasion of privacy occurred was done maliciously within the legal definition of that term.
Potter Stewart: Now, where is that in the record?
Smith Warder: Page 60 of the appendix, yes Your Honor.
Potter Stewart: Yes.
Smith Warder: At the close of the Blamos case and that's where the court throughout the claim of punitive or exemplary damages because of the absence of malice under the Time Inc. standard, but erroneously send it to the jury on compensatory damages.
Byron R. White: You said under the -- you said lack of malice, what do you suppose -- you say he met the Time Inc. --
Smith Warder: In the context if you read the record, this is the only malice we were discussing. We never even discussed the common law standard of malice. All we discussed was --
Potter Stewart: Now, the common law standard of malice is all that had to do with the punitive damages, that's what this was about, punitive damages and that depends as I understand it under the West Virginia and Ohio law upon proving conventional malice, i. e. ill will, which is quite a different thing from New York Times or Time against Hill kind of malice.
Smith Warder: Your Honor, if you will compare this Court's definition of malice in the charge he gave the jury with this statement, I think it will become apparent that he was not talking common law matters. He just was it --
Warren E. Burger: Then, why did he got to go to the jury?
Smith Warder: He mistakenly felt --
William J. Brennan, Jr.: Why did he require you to go on with your defense?
Smith Warder: I beg your pardon Your Honor?
William J. Brennan, Jr.: Why did he require you to go on with your defense because if this were related to Time and Hill malice, that's the end of the case?
Smith Warder: It should have been and that's what the court held --
William J. Brennan, Jr.: But I mean the objection that going out of the defense, you went on with it.
Smith Warder: We moved for directed verdict and we renewed it.
William J. Brennan, Jr.: I know, but he said without ruling gentlemen Mr. Warder, you may proceed with your defense and you did. You're right and what you tell us is the interpretation of that. You should have [Laughter Attempt]
Byron R. White: Or after trial, he denied your, he granted in part, you moved and then denied in part.
Smith Warder: No. He overruled it in its entirety Your Honor. Remember Your Honor, at this --
Byron R. White: Or I think more than -- that's even more clearer than he thought there's enough evidence for the jury. This was --
Smith Warder: On compensatory damages, of course he did.
Byron R. White: Well, that depended on the so called New York Times malice.
Smith Warder: But this is the confusion that was in the trial court's mind. Now if I can get back to Your Honor's question, I'm a trial advocate. I am faced with the proposition. If the court says I am going to the jury on compensatory damages, I submit it is most dangerous not to put in a defense because I'm going to that jury anyway.
William H. Rehnquist: Do you think the District Court may have foreseen our Gertz case before it was handed down?
Smith Warder: I don't think so Your Honor in all fairness.
Warren E. Burger: Well, does Gertz really had anything to do with this case? This is a privacy case.
Smith Warder: In generally, yes Your Honor as I shall come to that. Remember despite the protestation of my learned opponent, this is a Post like privacy case. On page 35 of the record, the petitioner admitted that she was not offended by the existence of publicity, but by it's nature and if you will read the question preceding the excerpt which my opponent read, this becomes perfectly clear. Now --
Warren E. Burger: Well, that parsing it pretty finely --
Smith Warder: No. There are four --
Warren E. Burger: You're talking for a lay person who is not well educated. I submit that it's pretty difficult for me to understand --
Smith Warder: Well, that's the project from the other way Your Honor. It's not a commercial exploitation case. It is not a case of the disclosure of embarrassing private facts. Neither is it a case of an unwarranted intrusion. Now, there are only four types of privacy, and this is all that remains, it has to be. For that matter, commercial exploitation as I understand it was a laid to rest with this Court’s decision in the Pittsburgh Press case, but this is a privacy case which had it been brought as a libel case would not have gone to the jury because it is not libelous per se then there is no proof of special damages as is required in a per code libel case. Now Your Honor, I would like to compare the state of the law in right of privacy in the libel and slander. In the right of privacy case, truth is not a defense, in a libel case, it is. At common law in the privacy case, it is a complete defense that common law if the matter is one of public interest.
William J. Brennan, Jr.: Mr. Warder, I noticed that the complaint sounds an action for malicious and defamatory libel. Well what happened to that aspect?
Smith Warder: That was dismissed and abandoned. It just never went to the jury. It was tried on a simple privacy theory and counsel admitted that it his opening argument.
William J. Brennan, Jr.: Was there an amended complaint or is that the only concern?
Smith Warder: That's the only one.
William J. Brennan, Jr.: I see.
Smith Warder: Now --
Potter Stewart: But everybody seems to agree that the complaint was in perhaps implicitly amended to --
Smith Warder: Right.
William J. Brennan, Jr.: And I notice incidentally in the complaint that on punitive damages, the allegation is the said publication, maliciously, falsely, blatantly and scandalously by trace plaintiff's dissident, that’s a different kind of malice isn't it than the Time and Hill malice?
Smith Warder: Yes it is.
Potter Stewart: What page is that on?
William J. Brennan, Jr.: That's at page four.
Potter Stewart: Thank you.
William J. Brennan, Jr.: Paragraph 6.
Smith Warder: Now, in a libel case in the light of Gertz, I have some doubts and so does the verdict lodged in the courts as to whether being a matter of public interest is any longer defense when we are discussing private persons. Now, let's see where this diagrams out as to privacy and libel. If there is a matter of public interest involved and if it be true, plaintiff can recover under either theory, but if it is not a matter of public interest and if it is false, if it's defamatory, then you can recover in the libel. If it is non-defamatory, then you can still recover in a privacy action. Now somehow here it seems to me that in this narrow context, Freedom of the press just does not exist. Going further, if it's a matter of public interest and false, you can recover in libel but as I understand Gertz, only if it is defamatory on its face. And finally, if it's not a matter of public interest and if it's true, you can still recover in a privacy action. Now, there is something wrong here and it seems to me the touchstone is if I am sitting at the editor’s desk, if there is something in this article that rings the alarm that tells me this article has a propensity to offend, then perhaps I'd publish at my peril and I think I should. But if I read an article that rings no alarm that carries with it no warning, if thereafter some jury is to tell me I owe damages, I have become libel without probable --
Warren E. Burger: Haven't you postulated a subjective test there, some things would ring a bell with some editors and the other editors wouldn't hear any bell at all?
Smith Warder: Well, if the alarm is there, he had better hear the bell. I think it's an objective test. It would be tested in the court by the judge that reads it and tells him whether there's an alarm in it. That you can't get away from it.
Warren E. Burger: Then that's what you meant when you said the editors reads it that is peril?
Smith Warder: Right.
Warren E. Burger: Because he's got to wait and see what the jury and what ultimately this Court --
Smith Warder: No. I said he publishes at his peril if the alarm is there, and I do not think it would be a defense to the paper if the editor was deaf and couldn’t hear the alarm. I think so long as the alarm is there, then perhaps liability is warranted. But absent of alarm, when you are publishing, you'll read this article, you do not see any propensity to the fame or to offend and you publish and after the fact, you get caught. This is hardly consistent.
William H. Rehnquist: Well, are you suggesting then that even a right of privacy consistent with the opinion in Time against Hill violates the First Amendment?
Smith Warder: I am contending that in a false like case -- well what I am really coming to Your Honor is I think the constitution prohibits a false like privacy case per se.
William H. Rehnquist: That would certainly go further than the Time against Hill?
Smith Warder: It would go a little further here --
William J. Brennan, Jr.: It would go with the defense of Time and Hill?
Potter Stewart: It will overrule Times against Hill.
Byron R. White: Sure.
Smith Warder: No, Time against Hill was decided under a special statute where under truth was a defense. You see, I am dealing with common law privacy where a truth is not a defense.
Potter Stewart: It was not very clear to me about your argument as you pressing this down. I'm not clear whether you're talking about the common law of defamation --
Smith Warder: I'm talking common law --
Potter Stewart: -- or are you talking about the constitutional limitations upon the common law of defamation?
Smith Warder: I am talking the common law of defamation and the constitutional limitation as I understand them on the cause of action for libel. And Your Honor to develop the thought as I understand it in a false like privacy case, there is never an alarm bell. If there were, it would be a cause of action for libel. This whole concept of a false like privacy is a concept designed by the common law of courts to give a plaintiff a cause of action who could not win his case if it were brought in libel.
Byron R. White: let me -- I think -- we might be talking about two different things without distinguishing them. You are suggesting that perhaps an editor wouldn't have an alarm bell in terms of whether this might embarrass a person. But if you -- there's another aspect, whether or not there might be an alarm bell as to whether the statement is false. Now, there might be an alarm bell when its false, but no alarm bell would make any difference even if it was.
Smith Warder: I want to make myself clear Your Honor.
Byron R. White: Now, Time against Hill said there had to be at least recklessness with respect to truth or falsity.
Smith Warder: Right.
Byron R. White: Now this jury found that as was -- as it had it under instruction that there was at least recklessness in terms of truth or falsity.
Smith Warder: Right.
Byron R. White: Now, you can be absolutely right in what you said so far, but you haven't gotten to whether or not there is an alarm bell with respect to truth or falsity.
Smith Warder: I am thinking as to truth or falsity only. I do not think it matters whether there is an alarm bell as to the propensity to offend. If an editor never published anything offensive, he would have a name, be pen be paper. I submit that the original Watergate story was offensive to many and still used to some, but wouldn't it be horrible, had it not been published. You have to publish offensive things. Now, I am speaking strictly of whether there is true or false --
Byron R. White: -- why you distinguish between libel and the false like cases in terms of the constitutional protection.
Smith Warder: I'm trying to make it the same Your Honor. I'm not distinguishing in terms of their constitutional protection. I am distinguishing in terms of the old common law. This is what I am urging is that the constitutional protection in a false like privacy case should be as broad as it is in the libel case.
Byron R. White: Well, this then you get the protection to that little time construction theory?
Smith Warder: Your Honor of course, I did and the jury let this and the Sixth Circuit held that there was no evidence upon which the jury if they use that verdict.
Byron R. White: Well, I take it that the Court of Appeal is right, you win, but what if they're wrong? You haven't --
Smith Warder: That is a question. You review the record. If the evidence is there --
Byron R. White: Do you loose then?
Smith Warder: I think we would Your Honor, but I don't think the evidence is there, a reckless disregards or acknowledge of the falsity.
Lewis F. Powell, Jr.: Are you saying Mr. Warder that we are down to the issue in this case as to whether or not there was sufficient evidence to support the jury verdict?
Smith Warder: I think that we have to come to it. We think it's a matter of law that under the Time and Hill standard, there was no evidence of malice.
Lewis F. Powell, Jr.: You do not object to the instruction given by the court as I understand it?
Smith Warder: No. We took no exception to the instruction; that is correct. You know Your Honors in reflecting on this matter, there's another anomaly here. Somehow, the law is wrong. If Eszterhas had stood on the street corner and gathered the list and said orally what he wrote for the paper, there would have been no cause of action for privacy and no course of action for slander. The words are not slanderous per se and there are no special damages. Also, there would have been no cause of action because Eszterhas is protected by the Freedom of Speech Clause of the First Amendment. Somehow, you put it in the paper. You remember that the newspaper has two defenses. One; freedom of speech, second; its own special Freedom of the press, and to get an opposite result from the printed word rather than the oral statement to me makes no sense. Now, I submit I don't --
Potter Stewart: -- in this Court I think that properly analyzed indicate that the two guarantees are not cognate that you might very well get a different result under a free press case than you would under free speech case. And it isn't true that the invasion of privacy generally is something to which only media, publishers are liable?
Smith Warder: Generally --
Potter Stewart: By definition it involves publicizing rather than merely an individual speaking?
Smith Warder: Professor Hetmerg even makes that flat statement in his book on Torts. I don't think it's any longer true. I have in mind the electronic devices which might now constitute an invasion of privacy, but which are beyond the scope of this case in which we need not consider.
Thurgood Marshall: Mr. Warder, I have problem. This material was gained by a trespass, is that right?
Smith Warder: No Your Honor.
Thurgood Marshall: There wasn't a trespass --
Smith Warder: No Your Honor. Had this been an action in trespass, there would have been the jurisdiction or amount for diversity case. This gentleman was seen approaching --
Thurgood Marshall: Now, was this a state trespass case?
Smith Warder: There's no trespass case at all. The man is not a trespasser until it is made known to him that his presence is unwarranted. Up to that point, he is at worst a licensee. These people are no more a trespassers than the public --
Thurgood Marshall: -- the licensee when the mother wasn't there?
Smith Warder: The children were there. They were in charge.
Thurgood Marshall: But they couldn't give license.
Smith Warder: They would, they were in charge of the property of course they can give --
Thurgood Marshall: Children could give license?
Smith Warder: Certainly Your Honor.
Thurgood Marshall: The two-year old?
Smith Warder: No, but the 17-year old --
Thurgood Marshall: Is that the law of Kentucky?
Smith Warder: Well, I don't know what the law of Kentucky is, but I know that if I leave my children with a 17-year-old babysitter, she's in charge of that house until I get back.
Thurgood Marshall: And she can give license?
Smith Warder: I would think so. She is the possessor of the real estate until my return.
Thurgood Marshall: But I thought the child said deliberately that mother is not here.
Smith Warder: He said the mother was not here, yes.
Thurgood Marshall: Well I contend that as saying that the licensee is not here.
Smith Warder: No, they didn't say don't come in.
Thurgood Marshall: The licensor is not here.
Smith Warder: They didn't say don't come in. They didn't say please get out --
Thurgood Marshall: They just said, but why did they say the mother was not here?
Smith Warder: Because they asked for it. The reporters asked for Mrs. Cantrell.
Thurgood Marshall: And you don't think that was a trespass?
Smith Warder: Not at all.
Warren E. Burger: Well isn't this the case sounding in violation of privacy in the nature of trespass concept --
Smith Warder: Or of the old --
Warren E. Burger: -- you trespass on the person's privacy --
Smith Warder: Was the old common law concept of course. I was taken in terms of trespass to real property and I think that's what's been argued to Your Honors.
Warren E. Burger: Her whole complaint here is that your client trespassed on her privacy, in her household, in her family, in her tragedy, that's the essence of it, isn't it?
Smith Warder: No. Her complaint is that we published her false statements concerning her.
Warren E. Burger: Well, you trespassed and then published the results of what you found or thought you found.
Smith Warder: Well Your Honors, I see I have sometime left but I have nothing to add to these remarks and if there are no further questions, I waive my right to --
Warren E. Burger: Very well. Mr. Sherman, you have used all your time.
Harry Alan Sherman: Just if Your Honor please, I want to point out that my friend's statement on the alarm situation. First of all, there was no denial of the falsity. Plaintiff's case went down the line to prove that the articles, as the contents of the article were false, absolutely false. There was no denial of anything that we said was false. Secondly, at page 102, 103 --
Warren E. Burger: Does that become a burden after the jury has returned the verdict and to loose instructions?
Harry Alan Sherman: No Your Honor. As far as I'm concerned, but when he argued that somehow or rather that if they publish a story, there the editor can't be held for falsity. They didn't deny it was false. Secondly, that Judge Krupansky told the jury that if they found, they had to find that the trespass and the actions of Conway and Eszterhas were within the scope of their employment that they were sent there rather than they did it on their own at page 102, 103. So I wanted to just point that out Your Honor and thank you very much.
Warren E. Burger: Thank you gentlemen. The case is submitted.