Warren E. Burger: We'll hear argument next in Number 109, Time Incorporated against Pape.
Don H. Reuben: Mr. Chief Justice --
Warren E. Burger: Mr. Reuben you may proceed whenever you are ready.
Don H. Reuben: -- may it please the Court. This suit for libel had its inception in a raid led by the respondent on the Westside Apartment of a black family in the City of Chicago in the year 1958. The family's name was Monroe and at that time the respondent was the Deputy Chief of Detectives of the City of Chicago. Shortly after the raid, the Monroe family brought an action in the Federal District Court of Chicago, alleging that the raiding party and specifically that the respondent, Captain Pape broke the doors down, woke the Monroe couple with flashlights, forced them at gunpoint to leave their bed and stand naked in the center of the living room, roused the six children that were in the apartment at that time, herded them into the living room. That the respondent struck Mr. Monroe several times with his flashlight, calling him nigger and black boy. That another officer pushed Mrs. Monroe. That the children were hit and kicked and that the police ransacked every room, throwing clothing from closets to the floor, dumping drawers and ripping mattress covers and the like. The cause ultimately reached this Court and this Court held in 1961 in Monroe versus Pape that a cause of action was stated on behalf of Monroe and against Captain Pape. Then in November of 1961, the Civil Rights Commission issued it's Fifth Report which it had entitled “Justice.” Pertinent excerpts of justice appear in Appendix 323. Chapter 2 of “Justice” deals with police violence and is headed “Unlawful Police Violence.” The Commission says, in Chapter 2, that the allegations of misconduct are supported in several cases by criminal convictions or findings by impartial agencies, in others by sworn testimony, affidavit from an eye witness, or by staff field investigations. In no case, as the Commission determined conclusively, whether the complaints of the officers were correct in their statements. This is the function of a court. The Commission said “It was of the opinion that the allegations appeared substantial enough to justify discussion in this study.” There was a heading “Patterns of Police Brutalities,” a sub heading “Enforcement of segregation or subordinate status,” punishment; third, the third degree in coercion of confessions and the forth section was initial contact and arrest and under the heading “Search, seizure and violence: Chicago 1958,” the Commission discussed the case or the actions of Captain Pape. The Commission did so by using the language of the dissent of Justice Frankfurter in Monroe versus Pape and the Commission's lead was to say, the Supreme Court of the United State's decided the case of Monroe versus Pape on February 20, 1961. Although this decision did not finally dispose of the case, it did permit the plaintiff to sue several Chicago police officers for violation of the Federal Civil Rights Act on the basis of a compliant which alleged that and then Justice Frankfurter's opinion was quoted. Time Incorporated, upon receiving the Commission report, wrote an article and published it in the ensuing edition of Time. That article appears in hike verb (ph) in our brief at page 8, it's called “Civil Rights.” The respondent sued for libel. The case was decided by the district judge on motion prior to this Court's decision in New York Times. The district judge dismissed the cause. The Court of Appeals, with one judge dissenting, reversed. Thereafter when the case was remanded, the plaintiff's position -- Captain Pape's position was taken, the Court's decision in New York Times had come down. A motion for summary judgment was made. It was granted on the basis of New York Times. The case went back to the Court of Appeals, was again reversed. The third time when the case was remanded, the District Court empaneled a jury and a full hearing was had and the pertinent evidence to this cause shows that the author or the man that originally wrote the story, dropped the word “alleged” or did not indicate in his reporting of the event that this material that came from the Civil Rights Commission Report was in turn a statement of Justice Frankfurter's statement of the complaint. He was asked specifically and it is at page 12 of our brief and it's appendix 208 and 209, why he dropped the word “alleged” and he said, the word “alleged” cannot be taken just in that context. It has to be taken in the context of the entire chapter. He says “It means to me that the Commission in this case is reporting this instance in terms of a claim being made in a court by the Monroes, but you can't stop there. In the context of the entire chapter, it is not a simple allegation because the Commission has also said that we will not include just an allegation that we have not verified in some fashion.
Byron R. White: It wasn't just a negligent omission. It was a thoughtful, knowing deliberate omission of the word “alleged?”
Don H. Reuben: Well, I think Captain Pape would call it “deliberate,” I call it “conscious” omission.
Byron R. White: Well, of his knowing anyway.
Don H. Reuben: Yes, absolutely.
Byron R. White: He knew exactly what he was doing?
Don H. Reuben: Absolutely. After --
Potter Stewart: After our -- after this Court's decision in Monroe against Pape, did Mr. Monroe proceed in his action against Mr. Pape?
Don H. Reuben: Yes, he did, Mr. Justice Stewart. He obtained a verdict and judgment which was paid and was not appealed. However, in candor the author of Time Incorporated didn't know it at the time because it hadn't happened yet, but It has happened while this libel suit was pending.
Potter Stewart: It happened, however, after the institution of this libel suit?
Don H. Reuben: Yes sir and that was called to Seventh Circuit's attention and they said that it was of not any relevance in this cause.
Potter Stewart: Well, despite the chronology, you think it's of any relevance or not?
Don H. Reuben: I certainly do. I think it would be a travesty to say that the respondent here has a right to sue for libel when he has been found guilty of the ultimate sting of the article of violating Monroe's Civil Rights.
Potter Stewart: Well, not guilty perhaps, but not beyond the preponderance of -- by a preponderance of the evidence, he is civilly liable?
Don H. Reuben: We used the term guilty in the suit [Attempt to Laughter] of course in Chicago.
Warren E. Burger: I suppose it might be argued contra that the article contributed to that result, and I say argued?
Don H. Reuben: Well, I suspect that, that was something that Captain Pape would have addressed to the Court in the Monroe versus Pape. These were taken on appeal, if he had thought that, that was truly the result.
Byron R. White: Well, of course the officer might have been found guilty of or found liable for violating Civil Rights without having committed the acts which are alleged in the story?
Don H. Reuben: That's correct, Mr. Justice White.
Byron R. White: Which is really a rather critical point, isn't it?
Don H. Reuben: Well, I suggest to you that the courts looked to the sting of the article and sting of the article was it violated the Civil Rights of the Monroes which is the sting of the burden.
Byron R. White: Well I know, but I mean to recover it all on libel suit, you just don't find whether somebody was stung or not stung, you find whether some statements were true or untrue among other things?
Don H. Reuben: As I understand the law of libel, a substantial truth is allowed and if the gist of the libel is a violation of the Civil Rights of Monroe --
Byron R. White: Well, I gather though if it had been found in this case that, at least it can be said that the report that was published was a false report of the what was said in the Civil Rights report?
Don H. Reuben: This is what --
Byron R. White: Well, that's one step.
Don H. Reuben: -- Court of Appeals.
Byron R. White: And secondly it was -- it must have been found by the jury that the statements substantively were false, some of them anyway?
Don H. Reuben: The case never went to the jury. The District Judge took the case from the jury and dismissed it. The Court of Appeals dismissed it. The article after --
Byron R. White: Was it never been found in this case substantively?
Don H. Reuben: That's correct.
Byron R. White: Whether any of the statements in the Civil Rights Report are true or false?
Don H. Reuben: That's correct. Now I want to go on to the editorial process because it didn't just stop with the article being written by Mr. Magnuson.
William J. Brennan, Jr.: I think we should perhaps Mr. Reuben test that. Do you not concede (Inaudible)
Don H. Reuben: I do not concede it, but the District Judge assumed it for the purpose of deciding the motion at the close of all the evidence.
William J. Brennan, Jr.: I know, but I am taking about your position?
Don H. Reuben: My position is I do not concede that it is false.
William J. Brennan, Jr.: So what you say there is no false statement in the article?
Don H. Reuben: That is correct, but I don't think that's before Court. I just -- at this moment the case --
Byron R. White: And (Inaudible)
Don H. Reuben: I think you have to, I have to be candid.
Byron R. White: Yes.
Don H. Reuben: After the --
William J. Brennan, Jr.: (Inaudible)
Don H. Reuben: Because the District Judge did not -- no trier of fact has decided that. The trier of fact, the District --
William J. Brennan, Jr.: But we never get to New York times rule unless of course (Inaudible)
Don H. Reuben: That's why you have to assume it's false and the question is actual malice, that's the issue that the District Judge went off on here.
Speaker: You don't have to assume it's false, do you? All you have to assume is that there was enough there to submit the issue of falsity or not to the jury?
Don H. Reuben: That's correct.
Speaker: It's a very good proposition.
Don H. Reuben: That's correct.
Speaker: Well, don't have to assume and even, if not concede that it's an inaccurate report of the -- of the Commission Report that it was purporting to be reporting?
Don H. Reuben: No I do not. I do not and the author I think made it very clear that as he read the entire Civil Rights Commission report, it was not an inaccurate report. It would be Civil Rights Commission and that's the thrust of his testimony. The Civil Rights Commission was not merely reporting Mr. Monroe's allegations in the complaint. The Civil Rights Commission by it's opening statement, by it's headlines, by the mere inclusion of the Pape case was making a, if you will, an independent finding that this was a case of substance that merited a discussion and this was precisely the view of the dissenting judge in the first opinion, pre-New York Times when the case was decided on state law.
William J. Brennan, Jr.: If we affirm does this case go (Inaudible)
Don H. Reuben: No sir, the case is over.
William J. Brennan, Jr.: What would (Inaudible)
Don H. Reuben: Nothing went to the jury. The district --
Harry A. Blackmun: (Inaudible)
Don H. Reuben: Because the District Judge dismissed the case at the close of the evidence. If you --
William J. Brennan, Jr.: (Inaudible)
Don H. Reuben: If you reverse the case is over, if you affirm, the case goes back to the jury.
William J. Brennan, Jr.: (Inaudible)
Don H. Reuben: I'm sorry I misunderstood you.
Speaker: Could I ask you a question? Does the record show what considerations were alleged at that time (Inaudible) word “allege.”
Don H. Reuben: Yes.
Speaker: In other words I guess what I am getting at is what is difference between the new value of one thing unless there is value of the other (Inaudible) that way?
Don H. Reuben: Well, I think that the best answer to that is to review what Time did here. Mr. Magnuson whose testimony I read, the Court indicated that he thought from a reading of the Civil Rights Commission report as a whole that this was as he said “There's more an allegation of a complaint being reported here.” Additionally after the article was written and I think the Court has to look at this article as though it was uttered by Time Incorporated, you have to look at the whole editorial process. The article was sent to a research department and the morgue on Captain Pape or the reference file which they had was taken by an independent researcher and there was discovered a number of material on Monroe versus Pape, including a New York Post article which is in the record and including a Time Zone in-house dispatches which indicated that the incidents reported by the Civil Rights Commission in the words of Justice Frankfurter were true and the combination of the researcher's independent judgment plus the editor's judgment plus the writer's judgment resulted in an editorial decision, in an editorial decision to publish this material in the form that's before the Court. And in the New York Times case and in the St. Amant case, the test is of actual malice is whether there was a publication made by one who published knowing it was false and intending to do harm through falsehood or as Justice White said in St. Amant, “A high degree of awareness of falsity and nevertheless publishing, intending to do harm by publishing falsehood.” There is not one thing in this record that indicates that this author or this researcher or Time Incorporated had any knowledge of falsity or had any awareness of falsity. Rather what we believe and what the District Judge held and what two judges or at least the first dissenting Circuit Court judge held was that a fair reading of the Civil Rights material alone could lead to the conclusion that the report about Pape in the Civil Rights Commission was true. And I suggest if you read the dissent in the first Pape case, decided pre-New York Times and you see there a Court of Appeals Judge, looking at the four corners of justice and saying to -- in his dissent that a reasonable person could read “Justice” and conclude that Times report was an accurate report of justice. That if an independent judgment like that can be made, then it's passing strange to say that the author had either knowledge of falsity in reading “Justice” when -- or had a high degree of awareness of falsity. Now, the Seventh Circuit which reversed Judge Robson's holding that to allow this case to go to the jury would have a chilling effect on the First Amendment, singled out, singled out the word “alleged” or the dropping of the word “alleged” and on that basis, and on that basis alone held that the case had to go to the jury on the issue of actual malice. It was that single facet that prompted every reversal and what you see, I submit to Your Honors, is an ability by any court in the country to give lip service to Your Honor's decisions in New York Times and its progeny St. Amant and the cases in between and nevertheless within the framework of giving all of the Pi's (ph) utterances possible to New York Times to hold that a libel occurred or that actual malice occurred by singling out one factor and what -- there are at least three vices in what the Court of Appeals did and what occurred here.
Byron R. White: (Inaudible) I think that you don't -- part of submission is that the First Amendment would preclude (Inaudible) leaving out the word “alleged” would be vital?
Don H. Reuben: No.
Byron R. White: Do you say that the underlying statements were false, leaving out the word “alleged” you say fairly reads out the libel's perspective?
Don H. Reuben: It might I say not in this case. In this case I think it cannot --
Byron R. White: Wholly aside from the (Inaudible)
Don H. Reuben: That's correct because of the contents of “Justice.” I think -- when the first case was decided, of the four judges that heard it, one District Court and Court of Appeals judge, they held that under the state law pre-New York Times that it was not libel, that it was a fair report of “Justice” within the four corners. Now I'm not sure that that rises to the dignity. I have to -- or the First Amendment right, but it was an incorrect decision in my judgment and it is not libelous. I think that that Time Incorporated article was a fair report of “Justice.”
Byron R. White: Well, that sort of thing that Justice Harlan (Inaudible) think the edge and the word “alleged,” that's all it was in the report, the “Justice” report saying alleged (Inaudible) and that word was left out you would say that would be -- the only thing unconstitutional in holding that being libel.
Don H. Reuben: Although it would be in my judgment wrong because the mere act of putting it in to the a section on police brutality and using those incidents, selecting incidents all over the country and using those incidents as a basis for recommendations to the Congress concerning how remedial legislation should be enacted, takes it out of the category of just the mere allegation of a complaint. There is a --
Byron R. White: (Inaudible) I gather is that your view is solely on balance?
Don H. Reuben: That is the issue that I think, has come before the Court the way the case was pitched, that's correct.
Byron R. White: Assuming libel -- libel's falsity (Inaudible)
Don H. Reuben: You have to, yes sir.
Byron R. White: (Inaudible)
Don H. Reuben: Yes sir, you have to do that absolutely. And it is our position, if you will, that the record shows that based upon all of the facts of the contents of justice and the more it clips which suggests to any reasonable person that this is true, that it is incorrect for the Court of Appeals to, if you will, second guess the editorial process and the editorial decision of time and to say, that use or no use of language is tantamount to uttering deliberate falsehood or is tantamount to uttering -- well the Court of Appeal didn't even suggest it was high degree of awareness, they pitched it solely under the grounds of deliberate falsehood. Furthermore, I suggest the Court of Appeals only went one step and said, well, in their view you misstated a report of government, but if Time Incorporated believed that the ultimate facts were true, then there can no malice under the test of New York Times and the record shows here.
Byron R. White: (Inaudible) function made part of the authorities on Civil Rights Commission (Inaudible). Civil Rights Commission stating this act rather than just (Inaudible) reminds me (Inaudible) saying Civil Rights --
Don H. Reuben: Well, I'm suggesting to you that in some respects they did make their own investigation by going to the --
Byron R. White: (Inaudible) gather some stories --
Don H. Reuben: No, that's correct, that's correct.
Byron R. White: (Inaudible) is concerned that the Civil Right Commission saying this as a matter of fact.
Don H. Reuben: And I'm suggesting to the Court that whether the Civil Rights Commission -- whether Times states it on his own authority or on the Civil Rights Commission's authority, if Time Incorporated believed the ultimate fact to be true, that the test for actual malice is not satisfied. That if Time Incorporate believes the ultimate fact to be true, whether it says that our nearest authority or the Civil Rights Commission --
Byron R. White: (Inaudible) this case proceeded with the (Inaudible) was leaving out towards the --
Don H. Reuben: He did it.
Byron R. White: Knowingly and he was wrong in assuming that that's what the Civil Rights Commission meant, he knowingly misstated?
Don H. Reuben: I think, you've come to the heart of the matter, I don't think that the fact that he misread or was wrong in misreading the Civil Rights Commission is enough. I think, you have to have him deliberately intending to falsify what the Civil Rights Commission said. It is not error, but it's an intension to cause harm through the uttering of falsehood and that's not in this record. And I suggest to you that the analysis made by the Court of Appeals to reach that very result was a myopic analysis. And it was made by singling out that fact, not looking at the author's testimony, not looking at the District Court's findings, not looking at the clips or the morgue and looking at the full contents of justice. And just as this Court has held that the failure to investigate and that was in the New York Times, does not with convincing clarity, and that's the test as I read the case, turn this into actual malice. So the mere misreading, the mere error in stating the report is not actual malice as this Court has annunciated actual malice. I would like to save five minutes for reply.
Warren E. Burger: Very well Mr. Reuben. Mr. Dunne.
Patrick W. Dunne: Mr. Chief Justice, may it please the Court. President Nixon last summer made certain remarks in regard to the Manson trial and regard to the (Inaudible) matters, and the press attacked him very vehemently for the failure to use the words “Alleged.” A week ago, on Saturday night, President Nixon had a press conference and he said, “It was wrong.” Time magazine read the report of a high governmental group which used the words “Alleged.” They reported what the Commission said, as fact, the Time magazine will never say, they're wrong. The author of this --
Warren E. Burger: Well, I thought -- I thought the posture of the case is finally moot to the point where they said, “Yes we're wrong, but we had no malice?”
Patrick W. Dunne: They said that they intentionally stated something different than the Commission report, but that they had the right to do it and could do it and were not wrong. Because, I suppose based upon an argument that in some way the end justifies the means that because I suppose after 306 pages which was the Commission's report, the Commission finally came to the conclusion that there was police brutally in the United States having reviewed many, many cases, I suppose that is the ultimate truth or the ultimate which Time feels justifies it's improper means of saying or omitting words like “Alleged” and “Complaint.” The author clearly said, he read it, he read the words, alleged in a complaint, he understood them, but choose to admit them. The omission of words, we submit, is a known falsity and meets the test of malice in New York Times.
Warren E. Burger: When you distinguish this from a case if the -- where the writer had put the word alleged in but the fellow who took the print together, down in the print shop, inadvertently drafted because it was at the end of a line.
Patrick W. Dunne: Makes all the difference in the world, Mr. Chief Justice.
Warren E. Burger: And what is the difference, what would that do to the case?
Patrick W. Dunne: The man who inadvertently, in a print shop, drops out the word Allege is doing an unintentional act, doing unintentional act whereas --
Warren E. Burger: So it bears only on malice.
Patrick W. Dunne: It bears only on malice, it truly bears only on malice, but that is an unintentional act. Here, the man knew what he was doing, he knew it, he intended to do it, and left it out and of course the thing comes out to be something quite different then. What the Commission said first of all and what Time was ostensibly reporting, I might --
Warren E. Burger: Well, doesn't it come out exactly the same as far as the reader is concerned?
Patrick W. Dunne: Well, it comes out quite the same but my point is that we do agree, we do agree that this Court, we do agree that New York Times, Mr. Sullivan, this Court said that there must be malice and malice is of course, the known falsity or the reckless disregard on whether or not the falsity is true or not.
Warren E. Burger: Well, then we move from there, do we not to the question of whether the conscious choice to drop the word alleged is a proof of a malice or evidence of malice, don't we?
Patrick W. Dunne: Surely, surely and what could be a better proof of malice than have someone, have someone knowingly report something different from another document. I might say that this is quite similar to a -- the contentions here are quite similar to the contentions that Time Magazine has made in the recent District Court case of O'Donnell which recently has been sent back in the motion for summary judgment -- the denial with most of the summary judges upheld by the Circuit Court of Appeals. In the O'Donnell case, the same contentions were made. The Court says after having reviewed other motions for summary judgment where the question was investigation and so on and so forth, and motions have been granted, the Court said, the present case differs however, because Time had actual malice -- knowledge of the fact that the plaintiff was an attorney. Yet decided to disregard or omit this fact, the First Amendment does not require that the plaintiff show, knowledge of falsity, and then as Time contends bad faith in the publisher's choice of disregarding the truth, where the plaintiff presents evidence to show that the publisher chose to substitute his opinion for facts actually known by him in an article that is capable of defamatory meaning, he has come forward with sufficient evidence to show reckless disregard. This case --
Speaker: Would you say that the time line follows an accurate representation, a fair representation of the Commission's report?
Patrick W. Dunne: Absolutely not.
Speaker: In what respect?
Patrick W. Dunne: The Time article, the Time article first of all selected it's couple of examples. One being the example of instance in Georgia, employing not names, but initials in a very, very flamboyant instance, coming out in the Commission's report. One involving a murder, they employ this, then they go on down from the South to the North, and talk about the incident of Pape, and they leave out the words as -- that the Commission said, “As alleged in a complaint”, and said, that the Commission found -- a high governmental commission found this police officer guilty of these acts of police brutality, destroying his (Inaudible) at his own field of work. So, it absolutely did not say -- it did report what that Commission report said.
Warren E. Burger: You think the editorial judgment of the author is in any way vindicated or aided by the subsequent jury finding in the civil case by preponderance of evidence.
Patrick W. Dunne: In no way. First of all, I believe that -- even the consideration of that in this instance is wholly wrong. First of all, this -- these facts, these allegations of a complaint set forth in Justice Frankfurter's opinion, we're not the allegations set forth in the complaint, which was subject matter of the jury verdict. The compliant after Frankfurter opinion was amended twice and watered-down completely, there was no such thing in the complaint as Pape having hit Monroe with a flashlight. Pape having called Monroe a ‘black boy' and that kind. That was the complaint that the jury verdict was brought down, it was much, much different. It set all kinds of innocuous things. Who am I to say, what the jury came to in that case. It has no credibility here.
Byron R. White: What was the evidence?
Patrick W. Dunne: In Monroe versus Pape?
Byron R. White: Was there any evidence with the (Inaudible)
Patrick W. Dunne: Well, if the Court please, I don't know what went on in Monroe versus Pape, the City of Chicago offered the services of it's officers to defend Captain Pape as well as the other police officers involved. They handled and they did it. I don't know and nor does this record know what the evidence went in here. I do know insofar, as this record is concerned, which I believe this Court and always bound by it that in order to forgo your -- in order to satisfy Your Honors of what happened in the incident of Monroe versus Pape, that we produced eight eye-witnesses to that incident who's testimony of course are in these proceedings and each one of those witnesses denied that the police officers broke in the doors, denied that there were thirteen police officers, denied that they assaulted anyone, denied that they had the Monroes standing in the living room naked. All these things are time set. So the only evidence, as far as, the incident concerned, in this case eye-witnesses who testified to a complete different approach.
Warren E. Burger: But what did the report say? Did the justice report say that these events occurred?
Patrick W. Dunne: No, no, the Justice report said that a complaint was filed in which it was alleged that these events occurred. The Time magazine said that the Justice report or the Commission hound that these things occurred and therein lies the libel and therein lies the malice, because they did it knowingly and with intention. I might go on to make a comment upon this great and extensive investigation and verification made by this worldwide 2000500 circulation publication, the great investigation that they thought they should do. They of course, as Mr. Ruben said, did hand it over to researcher Miss or Mrs. Booth who is in the record. Mrs. Booth of course, did get their morgue files on the Monroe versus Pape incident. She did testify however that her testimony and that of Magnuson (ph) clearly indicates that this morgue file was never brought to the office attention. In New York Times versus Sullivan, just exactly that, made the Court disregard the morgue files because it was not brought to the office attention, the person who wrote the story. I might further say that, if you look at that wonderful morgue file, you'll find there were many, many articles about the incident of Monroe versus Pape in the morgue files. Every one of them, except one, every one of them does what the Commission did. They say, “Mr. Monroe said” and tells what Mr. Monroe's side of the story was, coaching and cautioning and all answers that are there, telling the one side, which is fair enough as far as, Pape is concerned. Everyone, except one, and one does -- not the newspaper article, nothing that anyone else had the nerve to publish, just a dispatch from one of the Times Chicago correspondents, only one exhibits J -- exhibit J is the only one that repeats it as fact and not as a complaint that was filed or a rule in this Court, in Monroe versus Pape or a story which Monroe told. I submit that the -- that I do not find and I don't believe this Court will find but the reading the Circuit Court of Appeals opinion below, that the majority opinion stays with just one element. The Circuit Court of Appeals does look to the whole record. Malice which is this Court's standard is the knowing falsity, the reckless disregard of falsity. This case is presented to the Court on a motion for directed verdict. What this means usually is that, if there is any evidence, not a scintilla of course, but any evidence, any substantial evidence from which the jury could find that Time Magazine was guilty of a known falsity or reckless disregard of the truth, then the case should have gone to the jury. There is no way that the evidence, or looking upon credibility of witnesses for this kind, but was there any evidence. And what is evidence of malice? I suppose that's what this case is all about and that's what's this Court, or the Circuit Court of Appeals would call upon to say, what is evidence of malice? We submit that evidence of malice is many things. It's like almost any question that comes to a jury, all kinds of ingredients go into and hopefully from which the jury draws it's inferences and comes to its conclusion. With malice, the nature of article can be an ingredient. Maybe not the only one, but it's something to be considered. It's something that the Court considered in New York Times versus Sullivan which was an article the Court looked at and had difficulty identifying the elected official who was libel, not mentioned by names here, but the nature of the article can be some evidence of malice. Here the article is doodling (ph) on the corner. It incorporates Father Hesburgh's catchy remarks about, “Why do we go to the moon, when we don't care of our own house?” It again, uses a rather brutal, first paragraph about a situation in the South by initials. Yet goes into -- it goes into of course, the Pape incident. By the way, in the course of all these things, the author did read whole Commission report. The Commission Report itself was a very circumspect document. There were head notes like searches and seizures, but the Commission throughout its report speak of alleged instances, alleged this and alleged that. Commission Report uses initials for the most part when they're talking about the persons who are supposedly guilty or alleged, even alleged to be guilty of certain facts. This article of course, starts out with the words -- the new paperback book has 307 pages and the simple title Justice. It is the last of five volumes of the second report of the U.S. Commission on Civil Rights, first created by Congress in 1957. Justice carries a chilling text about police brutality in both the South and the North. Justice carries an indictment, and it stands as a grave indictment, since the facts were carefully investigated by the field agents and it was signed by all its six, all six of the noted educators. With that preview it says Pape, the Commission found that Pape did these things, but Justice didn't so find it.
Byron R. White: Mr. Dunne, why do you think or do you think that Time Magazine could have had a good faith in non malicious belief and the truth of the underlying allegations, but nevertheless be liable in this case because it misstated, knowingly misstated the Commission's Report by leaving out the word alleged.
Patrick W. Dunne: Well if the Court please, I don't believe as --
Byron R. White: Well, let's just assume for the moment though that Time had a good faith, non malicious belief in the truth of the allegations about, that it made about Pape, let's just assume that. Now, would Time nevertheless be liable because it left out the word alleged and misstated the Commission?
Patrick W. Dunne: Yes, for a number of reasons. First of all, Time wasn't reporting its own judgment on the incident of Pape versus Monroe. It was rather reporting so it says, what a Commission found is something different, that's first of all. They could certainly, good faith wise, make an investigation, do whatever they care to do, of course, using the facilities and I hope talking to somebody, I hope to talking to -- I hope at least talk to somebody who was at the incident but certainly if they investigated and they went out there, they talk to Monroe, they talk to Pape, or if they talk to anybody that might have been present, they can say anything they want as far as I am concerned and as far as Pape is concerned about the Monroe incident. So they could answer your question. They surely could come in and say, there was –- there was on such such a day a Campbell Park (ph) an incident where a police officer came in and beat up, beat a -- beat a suspect. They could simply this even though it was not true they could say it. So long as they did something and had some basis for saying that they talked to people, they have made a judgment, made an investigation and did something.
Byron R. White: So you think it would be -- let's assume you wanted to say something about someone that you thought was true and you have investigated, you had reasonable grounds to think it was true and it wouldn't be malicious in saying it. And you say, so and so and then you add another paragraph and by the way the Civil Rights Commission thinks just like I do also. And do you suppose that you would be -- that you would have -- could be held to be malicious just because it was untrue that the Civil Rights Commission agreed with you?
Patrick W. Dunne: Yes, if we have -- Civil Right Commission here which all it said was alleged, couched its remarks in the formal complaint and allegations. An omission from a -- can be malicious just as well as anything else and to knowingly do it, knowingly and I understand that you premise was that I knew when I was reporting the Commission, the Civil Rights Commission.
William J. Brennan, Jr.: In other words Mr. Dunne what you would say if they have done all their own investigation, they wanted to draw the Civil Rights Commission, they would still have to say our own investigation shows that this is true and we are satisfied it's true. The Civil Rights Commission investigated it and it says it's alleged to be true but we don't agree this merely alleged, we think it is true. If they gone ahead and said something like that.
Patrick W. Dunne: Perfectly alright, perfectly alright. And as matter of fact, was not the Time Magazine which is not a purveyor of hot news necessarily or someone who is up against deadlines constantly, I would even feel that investigation on their part could be whether the slight, but they had a week here to do something. The only thing that they did do in the course of this so called investigation and what the author did that he's the one whom we got to look toward malice, though we can't look toward the research who doesn't call anything to the attention of the author, the only author did is he, is he wired to Chicago and he said, what's the first name of Pape and what's the address of the apartment and was he punished and of course there in comes the article again as an element of proof of malice. The article concludes with and Pape was not punished. They say they drop the words alleged, drop the words complaint. They say the Commission found Pape guilty of these things and Pape was not punished. I mean that the text of the article itself is pretty inflammatory and then we come down to the fact that -- you come down to the fact that they knew what they were doing, they knew they're eliminating something and this we submit is malice. This is a known –-
William J. Brennan, Jr.: I gather on your premise Mr. Dunne even if this case goes back to trial and as part of their defense the Time were to prove in fact that all these things that were said about Captain Pape were true even if they were to establish, you'd still say you were entitled to go to the Jury on the issue of malice because they had as I gather you would put it falsely stated what the Civil Rights Commission said?
Patrick W. Dunne: Well, if the Court please. I've been working to -- get to the Jury for like nine years having been on --
William J. Brennan, Jr.: I know but would that be your position, before the jury?
Patrick W. Dunne: My point is -- my point is that, I will defend the –- I will defend the Pape incident no matter how it's couched as far as incident itself –- cause no allegation.
William J. Brennan, Jr.: No, won't you answer my question and my question was even if they -- Time established that in fact all these events occurred that the article mentions, I take it you'd still think you were entitled to go to the Jury because in reporting what the Civil Rights Commission had said they had not used the word alleged.
Patrick W. Dunne: Mr. Justice, it's exactly true, that's my position. I will say however and I'll just add caveat to it that we already put on eight witness, eight eyewitness to the Pape incident so that the Time can't prove that what happened in the incident of Monroe was true, solely as they say in their news, in their article.
Warren E. Burger: What if they -- the Time Magazine produces seven or nine who dispute those eight, would that conceivably form a reasonable basis for Time's editorial judgment?
Patrick W. Dunne: It certainly would. It wouldn't do the one the thing that I say should have happened anyway. It certainly wouldn't say that the matter should be left to the Jury.
Warren E. Burger: So that the impact of the ultimate verdict in the Civil Rights case could in that situation have some play?
Patrick W. Dunne: Well, of course, I feel that the verdict as a matter of technical rules of evidence which I certainly don't want to get into before this Court, the verdict and the –- the verdict in Civil Rights and the verdict in Monroe versus Pape base on this. As far as I'm concerned there is no place as a matter of evidence. In this case, in Pape versus Time Inc. for the simple reason that in this instance say it's not on same complaint and I suppose and we did feel when we tried the case that it was necessary to put on evidence of the incident of Monroe. We did put on such evidence. The Court of Appeals didn't feel that was even necessary. They felt what we were dealing with is not what happened on that night Campbell Park (ph), but what was happening in the Commission Report and I agree with the Circuit Court of Appeals but we did put it on. We probably would put it on again and Time of course, can put on any evidence it cares to and the Jury can draw any conclusions that it cares to insofar as the incident is concerned.
Hugo L. Black: Would you tell me rather briefly, exactly what it is that accuses this man off to the two-and-half million people?
Patrick W. Dunne: Yes, sir. Shifting to the North, the report cites Chicago treatment of Negro James Monroe and his family, who were awakened in their West Side apartment at 5:45 by 13 police officers, ostensibly investigating a murder. The police, says justice, broke through two doors, woke the Monroe couple with flashlights and forced them at gunpoint to leave their beds and stand naked in the center of the living room. The officers roused the six Monroe children and herded them into the living room. Detective Frank Pape struck Mr. Monroe several times with his flashlight, calling him a nigger and black boy. Another officer pushed Mrs. Monroe etcetera, etcetera, etcetera.
Hugo L. Black: That's the whole basis?
Patrick W. Dunne: This is the --
Hugo L. Black: You say because they left out the word alleged?
Patrick W. Dunne: In a complaint.
Hugo L. Black: They are bound at the time of this matter?
Patrick W. Dunne: I say because they left out the words alleged in compliant, that there is sufficient evidence in this matter to warrant the case to go to a Jury.
Hugo L. Black: There is no way they could -- but you would say that that was a question wholly for the for the jury, in your case, it really gets down to that --
Patrick W. Dunne: It really does Mr. Justice. It really does. It gets down to –- it gets down to -- into -- should the case go to the jury, I certainly agree and to sum up, I agree with the court that freedom of press is a precious thing and it is something that we should protect, and this Court to protect, and this Court has nurtured through the years. I think that a detective, a police officer, also like all other people have a right of privacy. These things do come in into conflict and they have here. I think they also have the right to trial by jury as we also have here.
Hugo L. Black: Well, that's your basis upon the charge --
Patrick W. Dunne: That we –- that there is sufficient, that there is enough evidence to go to a jury and the question of malice, that isn't. Knowledge of falsity and Pape --
Hugo L. Black: The Court should not have taken it away from the jury?
Patrick W. Dunne: The Court should not have taken it away for the jury. Thank you gentlemen.
Warren E. Burger: Mr. Reuben, nether you not your friend have said anything about whether this man you say 'Public figure” or “public official.” You consider that irrelevant?
Don H. Reuben: I do not consider it irrelevant. I consider it highly pertinent and indisputable that he is a public official, he was the –-
Warren E. Burger: Is every policeman a public official?
Don H. Reuben: I would think so but I don't think you have to reach it here. The record shows, he was the Deputy Chief of the Detectives, he had chauffeur, he had people under him, he had office, he had all the trappings and when he was on duty, he was the Chief of Detective, because I think he had the night shift and the day shift was the Chief of Detectives. I think if ever there was a public official going back to Rosenblum, Captain Pape is a public official. Mr. Dunne –-
Warren E. Burger: You say you don't have to decide whether the driver of a car wasn't public official?
Byron R. White: Not in this case. Although I think he is.
Don H. Reuben: Mr. Dunne argues malice from the tone of the article. As I read the cases of this Court, the issue is what was the editorial process, what was done by those who prepared and authored the material not what was the final work product and it's an objective, subjective, inquiry, if you will. I read in my opening statement, the testimony of Mr. Magnuson of what he believed, I think also highly pertinent is the testimony which appears at Appendix 224 of the researcher who had the article and had the (Inaudible) and who said the writer had chosen in conjunction with the editor which material they were going to use out of this particular quotation and checking back with my own editorial reference files, I believe that what we printed was an accurate representation and we're not taking anything out of context. I think what the Court of Appeals and Mr. Dunne has done is confused consciousness of the act, consciousness of what they wrote and consciousness of what they did. With knowledge of falsity, the two are miles apart.
Byron R. White: The knowledge of falsity of what Mr. Reuben?
Don H. Reuben: Knowledge of falsity of the ultimate facts. The ultimate facts –-
Byron R. White: Well let's assume --
Thurgood Marshall: Assume that you take out the word allegedly other than that he believed it was wrong?
Don H. Reuben: He believed -- in his testimony as he believed that in the context of justice that the word alleged were simply a device, an editorial device of the Civil Rights Commission to introduce or discuss the Pape case in the language of Mr. Justice Frankfurter, which the Commission was apparently smitten with or at least thought was an accurate –-
Thurgood Marshall: Why is that there was an imperative need of him to take out the word allegedly? What is the imperative need, the truth –-
Don H. Reuben: Mr. Justice Marshall, I don't think there was an imperative need but I suggest to you that if the case is going to go off on whether there was an imperative need, then you truly have a chilling effect on pruning it if a court can come back after some years, in this case ten years after the fact and say, well, there's a better way to say this.
Thurgood Marshall: You mean it's a chilling effect on Time Magazine, when they printing a direct quote and should leave it as it is, what's chilling about that?
Don H. Reuben: I suggest to you that the chilling effect is to say the Time Magazine that although you honestly thought this was true, you should have stated it a different way and because you didn't state it a different way, because we disagree what your editorial judgment that you are guilty of actual malice, you are guilty of knowledge of falsity. You may disagree with their penmanship, you may disagree with their choice of words, but I say that as -- under the cases of this Court unless the record shows with the convincing clarity that those choice of words reflect knowledge of falsity and an intension to do a malicious harm by publishing that falsity that there is no actual malice.
Byron R. White: Mr. Reuben, in this case if Time Magazine not only was conscious of what it was doing but knew that it was misstating the Commission's Report but it believed in the truth in good faith of the underlying allegations, what then?
Don H. Reuben: I say there is no liability, there's nothing submissible to the jury because –-
Byron R. White: And so the Time Magazine is perfectly free as long as it believes –- as long as it says we have good faith belief in the underlying allegations, Time Magazine is free to say anything it wants to about the Civil Rights Commission's Report?
Don H. Reuben: Within the context of what it believes to be true, within the context of what –- of course that isn't this case, but within the context of what it believes to be true, it can't go on and say, Captain Pape, according to the Civil Rights Commission did many other incidents. But if it's tied in -- if it believes the ultimate facts are true and there was a deliberate attempt here to misstate the Commission's report which I deny. I say there is no liability. There is nothing to go to the jury, there is no actual malice.
Byron R. White: Is that critical to your case in a --
Don H. Reuben: No, I don't think it is in this case, absolutely not. I think in this case -- I don't even concede it was false. I think in this case that the first District Court decision and the first dissent was correct and this under common law prior to New York Times was a fair report of a governmental utterance and I say that when two judges say so, it is passing strange to say that when an author so believes he is guilty of publishing knowing falsity. Thank you.
Warren E. Burger: Thank you Mr. Reuben. The case is submitted.