Earl Warren: Number 585, the Sinclair Company, petitioner versus National Labor Relations Board. Mr. Simerka.
Edward J. Simerka: Excuse me. Mr. Chief Justice and members of the Court, may it please the Court. We would like to get immediately into the reason why we are here. In December of 1965, the Teamsters Union lost an NLRB Election which was held among employees classified as journeymen wire weavers at our plant on Holyoke, Massachusetts. They voted seven against the Union and six for the Union. Now, even though the Union lost the election, the Labor Board ordered us to bargain with it and why did the Labor Board do this? They did it because of our words, because of what we said to our employees prior to a conduct of this election. Unlike the other cases that have been heard this afternoon, there were no discharges, there was no interrogation, there was no surveillance, and there were no promises of benefit by the employer in this case. Now, during the organizing campaign, President David Sinclair made two speeches to the employees and he wrote about eight letters for handbills. Now, in its decision, the Board could not find a single statement. They couldn't find a single sentence or a single communication which they could characterize as being unlawful. So, instead, what the Board said in fact was that even though each of the employer's statements was lawful by itself considered separately, we, the Board in our expertise seating here in Washington will decide that the totality of all these lawful statements however are unlawful and are coercive, and that is why we are here. It is our position that our communications to our employees were lawful and protected not only by Section 8 (c) of the Taft-Hartley Act but also by the First Amendment of the Constitution. Now, we would like to meet the issues head-on and if I may, I would like to direct the Court's attention to page 21 of the Board's brief. The Board's attorneys call attention on page 21 of their brief to five points that allegedly were made by President David Sinclair in petitioner's communications. I'm using the term Board's attorneys advisedly because the Board nowhere indicated that it relied upon these five points or upon any other points. The only finding that we have from the Board is that by petitioner's series of communications that when they were considered as a whole that these were coercive but the Board at no time ever indicated as to what it was specifically that we had said at narrative proscription. That's why I point to page 21 of the Board's brief because the Board's attorneys point to five points which they say we made and these five points I gather which made -- allegedly made our communications coercive in the Board's view. Now, of course the Board's attorneys merely expanded upon an approach taken by the court below which did much the same thing relying upon four points. Again, which there are no evidence were relied on by the Board. Now, we submit that each of the five statements or points that are referred to in the Board's brief were lawful and protected by Section 8 (c) and by the First Amendment of the Constitution. Point number one, for example is that the 1952 strike left the company in a state of continuing financial difficulty. Now, of course the facts in our case are that we did have a union for journeymen and at the time apprentice wire weavers up until 1952 and there was a 13-week strike. And in our communications, we told the employees that the 1952 strike of 13 weeks duration had left the company in a continuing state of financial difficulty and we submit that this statement is perfectly lawful and proper under Section 8 (c) of the Act by no stretch of the imagination can it be acclaimed to contain a threat or force or reprisal on our part, certainly is not a promise of benefit. Further, the statement is amply supported by the record and I point out that this Court has held that no test of truth can be administered either by judges or juries or by administrative agencies when questions of free speech were involved but the record does support this statement and it shows that the financial difficulties over the years became so severe that in 1964 President David Sinclair was forced to sell his family-owned company. Now, we assume that even the Board will agree with us that statement number one which the Board is relying on is a statement lawful and protected under 8 (c) and under the First Amendment.
Hugo L. Black: What page of the brief did you say that was on?
Edward J. Simerka: It's on page 21, Your Honor, of the Board.
Hugo L. Black: Alright.
Edward J. Simerka: Now, the second statement that the Board relies upon is a statement that a petitioner stated that a union would make unreasonable demands which the company could not meet and then its only recourse would be a strike. Well, I'm not going to quibble over the wording. We made statements substantially to of that nature in the course of the pre-election campaign. But we submit that anyone knows that this statement, that is that if the company cannot meet unreasonable demands that the Union's only recourse is the strike, is a true statement. It doesn't take board expertise to determine this. Now, we submit that a statement of this nature also is lawful and protected under Section 8 (c) under the First Amendment of the Constitution. To the extent that there may be involved a charge that a union or the Union or the Teamsters Union would make unreasonable demands, we submit that this is lawful and protected. It's a statement relevant to the issues and in Linn against Plant Guards. This Court recognized that a wide scope was to be given in a pre-election campaign of charges and counter-charges. Now, and it doesn't take board expertise to know that unions do make unreasonable demands. Everyone knows this. This is the name of the game. This is the basis upon which negotiations start in any labor management context and the people in the plant know this, and particularly these people and this plant knew it because they'd all been union members back in -- I should amend my statement of all, a majority of them have been members of the union back in 1952 and anyone who negotiates labor contracts as I have know this also. Now, in addition, here, there is a background of a strike over unreasonable demands in 1952. The majority of the employees involved in this election campaign went through the 1952 strike. They knew what the unreasonable demands were back in 1952 that led to that strike. Now, we submit that neither Section 8 (c) nor the Constitution permits the Board to shield employees from something they already know. Basically, this is the substance of statement number 2 that is relied upon by the Board. Now, what else did we do according to the Board's attorneys? Three, according to the Board's attorneys, we pointed out to the employees that such a recourse that is unreasonable demands was particularly to be expected from the Teamsters Union which was a strike happy outfit led by racketeers. Again, Your Honors, we submit there is no threat or force or reprisal in the statement and that it is fully protected by Section 8 (c) and by the First Amendment of the Constitution. Now, what does the record show with regard to facts? It shows first of all that the Union that was organizing us was in effect the same union that had struck us for 13 weeks in 1952. In 1952, our people were represented by the AWWPA, the American Wire Weavers Protective Association which had merged with or been absorbed by the Teamsters Wire Weavers Division which was the entity within the Teamsters Union that sent the initial letter to our employees and began its attempt to organize them in July of 1965. So the AWWPA which had been swallowed up by the Teamsters was the organizing entity. The authorization cards sent out to the employees authorized the international union to represent these people and also authorized the international to designate or charter any other local to represent. The organizational attempts started with the international and the first recognition demand came from the international on August 17th and it was a request made not only by the international but on behalf of the international as shown by our response to it. Any statements with respect to racketeering certainly amply supported by Senator Kennedy's book “The Enemy Within” which we sent to our employees and records of some of the investigating committees and the reference to the Teamsters being a strike happy outfit was supported in our letters to our employees by “directly from Mr. Hoffa himself” in connection with an organizing campaign among telephone installers where he told this people that here, they should be ready to do warfare with their employer for six or nine months or not coming into the Teamsters Union at all. Now, we submit that certainly we have a right to disseminate these facts to our employees with respect to our employee -- with respect to the Teamsters Union. There's no threat or force or reprising. We submit that our statements were lawful under Section 8 (c) and under the First Amendment.
Abe Fortas: Are both the Board and the court below disagreed with you? Is that right?
Edward J. Simerka: The Board, yes, based on its totality doctrine, the Board did not and as I pointed out earlier did not take these five points because it did not tell us what it us that we had said. The Board said merely that through their expertise, the totality of our communications were coercive. Now, the Court of Appeals did follow this type of analysis and set forth four different points which we submit do not support the Board's order in any event or its findings. However, the court below merely deferred to the Board's expertise and to the test of substantial evidence and we submit that in both of these respects, the court below urged that Board expertise was not in the proper standards. The courts should have reviewed the record itself to determine whether or not there were any improper statement and that substantiality of the evidence was not criterion particularly here when the facts were undisputed and all that was involved where the interpretations or conclusions to be drawn from these facts. Now, again I point to this Court's decision in Linn against Plant Guards where this Court pointed out that a great leeway was to be afforded to the combatants or contestants in a pre-election campaign for vigorous (Inaudible) and costly common. Now, apparently, in the Board's attorney's do not consider that points one, two, and three add up to an unlawful totality because they've gone on to number five and I assume that one, two, and three would not be sufficient in the Board's view to constitute a violation of the Act. The fourth point the Board points to is the statement to the effect that the another strike could result in closing of the plant as Lindsey would shift work to its Mississippi and Ohio plants if the Sinclair Company did not make a profit. Now --
Byron R. White: What was the unfair charge in this case?
Edward J. Simerka: The charge in this case, Your Honor?
Byron R. White: The unfair legal practice charge? 8 (a) (1) or --
Edward J. Simerka: The charge is an 8 (a) (1) charge. Initially there were charges of 8 (a) (1), (3), and (5) Your Honor.
Byron R. White: (3) and (5).
Edward J. Simerka: The 8 (a) (3) was dismissed and was never litigated. It was dismissed administratively then the hearing procedure on the charge of 8 (a) (1) and an 8 (a) (5).
Byron R. White: Yes.
Edward J. Simerka: And the 8 (a) (5) charge of course is based wholly and solely on the evidence again of our words to our employees. There is not a scintilla of evidence.
Byron R. White: Well, what's the basis for holding that they violated 8 (a) (1) because you violated 8 (a) (5)?
Edward J. Simerka: No. It's the other way around.
Byron R. White: That's what I thought.
Edward J. Simerka: And the Board automatically --
Byron R. White: This is an -- this is an independent violation of 8 (a) (1) without the words you use violating 8 (a) (1)?
Edward J. Simerka: Right. Then the same words are used by the Board --
Byron R. White: What's the rationale for saying that without violating one of the other sections you can violate 8 (a) (1)?
Edward J. Simerka: I'm not sure that I follow.
Byron R. White: Well, they said the words that you used violated 8 (a) (1).
Edward J. Simerka: Yes, well --
Byron R. White: In light that you violated 8 (a) (1).
Edward J. Simerka: Right. The Board's theory is that a violation of 8 (a) (5) for example or 8 (a) (3) subsumes or I should put it the other way. A violation of 8 (a) (1) is subsumed in a violation of 8 (a) (3) for example. If there is an unlawful discharge, this violates not only 8 (a) (3) but also 8 (a) (1). So in this case, the Board is turning around.
Byron R. White: That's right.
Edward J. Simerka: They say that a violation of 8 (a) (1) or of 8 (a) (5) I should say is subsumed in the violation of 8 (a) (1), now we don't have --
Byron R. White: Yes, but I think they're saying --
Edward J. Simerka: -- to put forth any more error.
Byron R. White: I think they're saying that because you violated 8 (a) (1), you refused to bargain by not recognizing the authorization cards because by the violation of the 8 (a) (1), you have really vitiated the chances of a fair election.
Edward J. Simerka: This is -- this is --
Byron R. White: The Board is certain but what is the -- specifically, how do you -- what's the rationale for saying you violated 8 (a) (1) by using some words against the employers when you haven't violated 8 (a) (3)?
Edward J. Simerka: Well, the –
Byron R. White: They just suggested as coercive?
Edward J. Simerka: At 8 (a) (3), --
Byron R. White: Any kind of coercive words --
Edward J. Simerka: No.
Byron R. White: -- violates 8 (a) (1)?
Edward J. Simerka: Oh, 8 (a) (3) makes an unfair labor practice.
Byron R. White: Don't forget 8 (a) (3) then. Just tell me what why is that? Why does this form of words to violate 8 (a) (1)? What Section 7 rights are being interfered with by using these words?
Edward J. Simerka: Well, of course there are contentions that nothing that we've said violated Section 8 (a) (1) that the Board did not appoint.
Byron R. White: What's the Board's view of it? Do you know?
Edward J. Simerka: We have sought in vain, Your Honor, to try to find out what the Board's view is because the Board's decision does not tell us. All the Board did in its decision is --
Byron R. White: It was it.
Edward J. Simerka: It -- they collected a series of little excerpts from what we said and enlisted among in their opinion then they said all of these foregoing speeches and communications when considered as a whole are unlawful. Then the Board made one finding relating to July 5 to December 9 the date of the election, then made a second finding that related only for the -- to the period from November 8 to December 9. Now, and the Board reach the same conclusion in both cases, the second finding limiting it to from November 8 to December 9 was made initially for the purpose of establishing findings upon which the election could be set aside and because objections or conduct is not considered as justifying setting aside and like somewhat less than occurs on or after the date the election petitioners thought. So, that's the reason for the November 8 date but other than the Board's statement that the totality of our communications violated the Act, we have no way of knowing what the basis of this conclusion is. The Board never pointed to any specific statement and said on such and such date you made a certain statement and this statement threatened or coerced the employees or that you threatened reprisals of the facts are to completely to the contrary which the Board has completely ignored it because we repeatedly told our people that we would not close our plant and that we would fulfill our duty to bargain with the Union if they selected one. The entire thrust of our conversations with our people was that there was a possibility that if this same union that had once represented our people and had already once before called the strike over unreasonable demands. If this union came in and did the same thing, then there was a possibility that there would be adverse consequences to all concerned because the company was not in the position to agree to any unreasonable demands. The Board characterizes our comments as predictions. Well, there are nothing in what we said where we even we went to so far as to predict that anything of this nature would resolve. We never predicted, we discussed the possibility. It was a possibility that if the Union was selected and if the Union made unreasonable demands upon us in the negotiating context and if we were unable to meet these demands and if they called a strike, then there was a possibility that this plant might close. We never predicted that any of this would happen. We repeatedly said that we did not intend to close the present Sinclair or repeatedly indicated to the employees that what was involved was his life. It was his job, it was his family business and in his final speech to the employees, he said that he would do his level best to keep the Sinclair Company in business and growing. So that we submit that the Boards findings based upon a totality of -- are not supported by the evidence that our statements that are constitutionally protected and are protected by Section (8) (c), and that there are no threats of reprisal or force including anything that we said. Now, in this regard, we point to Senator Taft's explanation in two-legislative history 1627 which we cited at pages 67-68 of our brief where Senator Taft in explaining Section (8) (c) said that views, argument or opinion shall not be evidence of an unfair labor practice, unless they contain in themselves a threat or coercion or promise of benefit. Now, the Board is urging before this Court a subjective test with regards to Section (8) (c) as to what the listener believe which amounts to reading Section (8) (c) out of the Act entirely. And it would again turn all speech questions in labor matters or the Board of expertise and we submit that this is what Congress attempted to prevent when it enacted Section (8) (c) in the first place. And this is what the Board has done here in this case attempted to substitute expertise for evidence and for findings. We submit that our lawful statements cannot be added up to an unlawful totality through bar or board expertise and if this can be done by the Board, they don't have to make any findings and they don't have to find that a statement is a threat and shown that this is supported by evidence then we submit that we will have the monster of expertise which this Court shown in the Burlington case.
Abe Fortas: Well, if you had said that the employees, if you join this top progressive union and we're going to move the plant south. That would have been -- what -- would that be coercion within the condemnation of the statute?
Edward J. Simerka: I think if the statement was made, if you join such and such union, the plant will be move south?
Abe Fortas: That's right.
Edward J. Simerka: Well, I would say that that was a direct threat to the employees --
Abe Fortas: So that one possibility here is that the Board whether or not, whatever you may call it, expertise or whatnot, the Board may have considered that the statements are in context demanded to that kind of a statement, is that possible extent do you think?
Edward J. Simerka: Your Honor --
Abe Fortas: And what you're asking us to do is to go through beyond this language that was used and say that the Board was wrong in putting a sinister interpretation on what was nonsense to language.
Edward J. Simerka: In substance that is our position, yes because --
Abe Fortas: You have another point about the authorization occurrence, don't you?
Edward J. Simerka: You mean on the bargaining order aspects of the case?
Abe Fortas: Yes.
Edward J. Simerka: Yes. There is really a point in that regard. Now, the Board in this case having filed that he committed an 8 (a) (1) violation as I said earlier subsumed an 8 (a) (5) violation in the 8 (a) (1) because there was no other evidence in this case other than the evidence of our words and they used our words then as evidence of a number of other things. They used our words and our finding on Section 8 (a) (1) as evidence that we did not have a good faith doubt of the Union's majority status. Also, that we did not have a good faith doubt of the appropriate unit but we sought to gain time in order to defeat the Union that we through our communications that we cause the Union to lose support. And finally, the final and most important finding which the Board made specifically in this case so that would be impossible to conduct a fair second election and then of course the Board does this through bootstrapping technique having found the 8 (a) (1), they automatically arrived at the 8 (a) (5) because the Board claims the right to infer of all these findings from the 8 (a) (1). We submit that there is no logical basis for this kind of inference. Now, the -- I would like to just add a few more comments because my time is valuable. It is our -- as I try to summarize on the bargaining order aspects of the case, it is our contention that the question of good faith doubt is really irrelevant and that the Board said so itself in this case. In its order, the Board said that even if we had had a good faith doubt that they would nevertheless have ordered us to bargain anyway. So, that the Board itself says that the question of good faith doubt is irrelevant. I think the important aspect in this case and in the others of bargaining order is a question of what is the proper remedy for the 8 (a) (1) violation if there is one in this case and we deny that there is one in this case and we deny that there is, or what is the proper remedy in -- for the unfair labor practices that have been found and the Court of Appeals although many of them still using the good faith doubt language have basically directed their attention to this question.
William J. Brennan, Jr.: I think it is discussed in page 191. It was the topic by the Board and the examiner, is that what you're referring to? By the Board elections, it's probably the best method concerning whether an employee's desire to be represented by a bargaining agent. Whereas here, an employer engages an unfair labor practices which may come possible holding to a free election. There is no alternative but to look at the signed authorization cards as the only available proof for the choice employees would have absent the employer's unfair labor practice.
Edward J. Simerka: Yes, that's it.
William J. Brennan, Jr.: That's it. Well, there's no reference here though to unfit -- to whether or not you would have a doubt. I don't find in that language.
Edward J. Simerka: No, it's not in that language. Yes.
William J. Brennan, Jr.: (Voice Overlap) don't go, don't waste your time looking for this. It is somewhere else's --
Edward J. Simerka: It is in the order though, Your Honor.
William J. Brennan, Jr.: Oh, in the order. I beg your pardon.
Edward J. Simerka: Yes, it's in the Board's order and discussions. I should say, not in the order itself and the discussion. The Board says that even if we had had a good faith doubt in this case, they would have ordered us to bargain in any event.
William J. Brennan, Jr.: Yes.
Edward J. Simerka: And --
Byron R. White: Did the Board write -- did the Board itself write an opinion in this case?
Edward J. Simerka: No. The Board really adopted the order in decision of the trial examiner.
Byron R. White: Where is this discussion in the Board's brief? Is that -- is that what you mean?
Edward J. Simerka: No, sir. It's in the trial examiner's decision I have referred with in this brief as being the Board decision because the Board adopted it. But --
William J. Brennan, Jr.: Well, that's what I was referring to and I couldn't find it. The language I read to you was the only thing that I have come across. Don't waste your time.
Edward J. Simerka: It's page 198, Your Honor.
William J. Brennan, Jr.: 198?
Edward J. Simerka: Yes.
William J. Brennan, Jr.: Oh, yes.
Edward J. Simerka: It starts about six lines down. Moreover, I would recommend the same bargaining order even if the record had warned of the conclusion --
William J. Brennan, Jr.: Yes, thank you.
Edward J. Simerka: -- and so forth.
William J. Brennan, Jr.: Yes. Thank you.
Hugo L. Black: Did I understand you to concede that if the company had made a statement that the Union won, it intended to move its plant and that was a truthful statement. That would amend a ground for holding --
Edward J. Simerka: I didn't get the last words, Your Honor, would be grounds for?
Hugo L. Black: That would've been a ground for holding if there was coercion on the employee?
Edward J. Simerka: Well, I say that if an employer goes to employees and says, “If you vote for this union, I will move the plants out” that this could be considered a threat under Section (8) (c) of the Act.
Hugo L. Black: Suppose it was the truth?
Edward J. Simerka: Pardon me?
Hugo L. Black: Suppose it was the truth? That's what I asked.
Edward J. Simerka: Well, I would say that this would be a threat under (8) (c) and could be considered --
Hugo L. Black: In other words, you couldn't tell them that what are you -- he is going to do, if they win? If the unions won?
Edward J. Simerka: Well, first that would --
Hugo L. Black: If he really intended to do it.
Edward J. Simerka: That would -- you'd have to consider the effect of the Darlington case or the Darlington decision of this Court as to whether or not he would be legally entitled might the state.
Hugo L. Black: Well, I don't say that one way or the other, I just asked if that was what you conceded?
Edward J. Simerka: Yes, I would say that if an employer made a flat statement to employees that if you vote for the Union --
Hugo L. Black: And if it wins, I said if the Union wins --
Edward J. Simerka: If the Union wins, this -- I hope this plant will be moved south.
Hugo L. Black: Yes.
Edward J. Simerka: And this could be considered a new trial.
Earl Warren: Mr. Wallace.
Lawrence G. Wallace: Mr. Chief Justice and may it please the Court. The petitioner in this case has raised a primary contention of the problem of reconciling Section 8 (a) (1) with Section 8 (c) and 8 (a) (1) being the section, one of the sections that the Board found the petitioner to have violated. These are set forth on page 43 of our brief in the appendix and perhaps, that is a good starting point for assessing the primary contention made here. Under Section 8 (a) (1) of the Act, it is an unfair labor practice for an employer to interfere with restrain or coerce employees in the exercise of the rights guaranteed in Section 7 including the right to a free choice in deciding whether they want to select a representative to represent them in collective bargaining. Under Section 8 (c) of the Act, Congress has said that the expressing event of the views, argument or opinion are the dissemination thereof whether in written, printed, graphic or visual form shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act if such expression contains no threat of reprisal or force or promise of benefit. Now, read together and in the light of their legislative history, we submit that Congress was saying two things in including both of these provisions in the Act. One that it wished to guarantee the employer's right to express his views and this is at all times under 8 (c), it's not restricted to the period of the election. And the other thing is that Congress wanted to protect the employees who are economically dependent of the employer from being deprived through threat of reprisal of their freedom of choice in the exercise of their right to choose their bargaining representatives and to bargain collectively if they so desire. This prohibition of threats of reprisal which exists in the Act as an integral part of the Congress' regulation of the employment relationship, a regulation of the manner in which the terms and conditions of employment will be established under the Act.
Potter Stewart: Do you suppose the language of the statute goes no further than what the employer already had, a right to do under the First Amendment or does it go further?
Lawrence G. Wallace: In my view, is that it goes further as would be indicated in decisions of this Court and other areas of economic regulation where there is not a provision comparable to 8 (c) protecting freedom of expression in the relationship, in the economic relationship. I -- I think for example, a Federal Trade Commission against Texaco in this term where the Court held that there was inherent coercion in the recommendation by Texaco to its dealers of a particular brand of tires, batteries, and accessories. Certainly, the Labor Board could not go this far in the face of 8 (c) as the Trade Commission did with this Court sustaining and in that case, in a similar economic context except for the differences in the statutory provision.
Earl Warren: We'll recess now.


Warren E. Burger: -- arguments, Mr. Clark are you reserving the rest of your time for rebuttal or you wish to continue?
Ramsey Clark: Yes Mr. Chief Justice.
Warren E. Burger: Very well, Mr. Segal.
Bernard G. Segal: May it please the Court. First is I am sure the Court would know, I should like to say that I do not agree at all with my friend Mr. Clark with the question here is whether New York Times and I assume he would include though he did not say Butts and Walker in the rest of the line are to be extended I quote him to 200 million plain people engaging in ordinary life. That is not the question on which the petition for certiorari was granted. It is not the question in the petitioner’s brief and it is not the question before this Court. Further, I say with full difference that I do not agree either with the sketch of the facts presented by Mr. Clark, I must say that some critical facts aren’t exactly stated and other critical facts are omitted. Therefore, I feel called upon as I had not originally intended to go into the facts with the Court particularly since in the cases I have referred to this Court has adopted the salutary policy of reviewing de novo the cases to find whether the standard for constitutional protection pronounced by the Court has been met in the opinion below whether Jury or Court. In the first place, we are -- Mr. Clark creates an erroneous impression when he says that there was a series of 21 broadcasts, a series of 21 broadcasts on WIP about Mr. Rosenbloom, there was no series at all. We’re not dealing here with a feature story, we’re not dealing with a documentary, we’re not dealing with the campaign and we’re not dealing with the crusade, we’re not dealing with the series. We’re dealing with statements which occupied one sentence to four sentences at the maximum in newscasts by a highly oriented station which every half hour of the day, 24 hours a day, 48 times a day, 320 times a week, every week of the year, everyday of the year, broadcasts every half hour of the year, and every statement before Your Honor fills that category. It’s a one sentence statement or two sentence statement or a four sentence statement and there is no longer one there. Now, the second thing my friend Mr. Clark did is he began with the statement of facts which said that on October 1st, there were arrests, 20 of them he said, Mr. Rosenbloom was one. Well, they were news dealers, they were store operators and they were distributor who supplied these store operators and news dealers, Mr. Rosenbloom. And then he says the next to that was on October 4, when WIP had a broadcast to which he objects. Well, Your Honor, a great, great deal happened between October 1 and October 4, to which Mr. Clark did not advert. What happened here is that is a result of complains from the public, and after a two-month investigation, Mr. Howard Leri, not Captain Ferguson, Mr. Howard Leri I think acknowledged this perhaps at that time America’s leading police commissioner, later commissioner in New York, ordered the arrests by Captain Ferguson and he ordered the crackdown on what he then regarded as obscene material. I might say to Your Honors that Mr. Clark has made a good deal of Captain Ferguson’s definition and has ridiculed it and has said that this would make the finest paintings in the museum obscene. But I suggest to Your Honors that just a few years ago, few years before that, we’re now talking about talking about 1963, a Chief Judge of the United States District Court of the State of Washington gave that precise definition of what he thought a majority of the people in the State of Washington considered obscene and a very advertent United States Court of Appeals for the Ninth Circuit, consisting of three Judges, everyone of whom served as a Chief Judge of the Ninth Circuit, affirmed on the opinion below stating that the Judge had found the facts. So there isn’t any shocking finding here, it was erroneous, erroneous under the decisions of this Court. Well, on October 1st, when the arrest came, all of the city newspapers had headlines about it and necessarily headlines about Mr. Rosenbloom who was the supplier, and the station CBS TV had headlines about it and that happened on the first and it happened on the second and it happened on the third and they are events to which Mr. Clark did not have heard. And those newspaper articles and that CBS TV telecast said that Mr. Rosenbloom’s products were smut and were obscene. And what did Mr. Rosenbloom do about that? I mentioned just in passing he brought a lawsuit about two weeks later and he didn’t name WIP in that lawsuit. I’m going to show he didn’t know there was a broadcast in WIP until October 27th, weeks later, didn’t even know there was a broadcast, but he brought a suit against all of the newspapers, against the Police Commissioner, against the District Attorney, one for a million dollars in damages and against CBS TV, not WIP, one for a million dollars in damages and the second to enjoin the Police Commissioner and the District Attorney from prosecuting him for criminal violation of the obscenity law and against the newspapers for calling his products smut and obscene and calling him a smut peddler and a peddler of obscene material. Did not name WIP and he averred there that so great was his damage by virtue of those broadcasts by those people that all, nearly all of his costumers as the language his used, nearly all of his costumers returned all of his material to him which he had supplied to them.
Potter Stewart: That damage suit was a suit for defamation similar to this one?
Bernard G. Segal: That suit was a suit for defamation --
Potter Stewart: Damage from it?
Bernard G. Segal: And for injunction.
Potter Stewart: But the damages?
Bernard G. Segal: Damage I would say -- it’s a little hard to tell Your Honor but I’d say it had to be defamation because I don’t know what else it could be. It’s not a complaint grounded elegantly for libel but I think it is.
Speaker: What was the outcome of that suit?
Bernard G. Segal: The outcome of the suit Your Honor is that shortly after November 1, when we broadcast an innocuous statement that the Judge would decide in 10 or 11 days, he did decide, he dismissed as to all of the newspapers, he dismissed as to CBS TV and a little later he dismissed as to the two city officials. Now --
Warren E. Burger: Was that the end of that --
Bernard G. Segal: That’s the end of those suits.
Speaker: Then a State Court suit?
Bernard G. Segal: A Federal Court Suit. I might say to you Your Honors that it was because of that, that Judge Lord ruled in this case that the plaintiff could not recover special damages against WIP for any loss of business at any kind. He said he has no right to special damages. Now I suggest the allowance --
Potter Stewart: The same, was it the same District Judge, in both cases it was, wasn’t it?
Bernard G. Segal: No, I might say to you Your Honor that though our friends on the other side have the strongest condemnation for our newscaster because he confused the Judges. My distinguished friend did the same yesterday when he said they were the same, they’re different. The Judge who heard this case is Judge John Lord, that is the complaint. The Judge who heard this case is Judge Joseph S. Lord. Judge John Lord has since become the Chief Judge of the District Court and it has been good deal of amusement at our bar of constant confusion. Well now, what then happened? On October 4th, Mr. Rosenbloom was rearrested and that was the day of the first broadcast of which my friends complained about WIP. Now, I’d like to get one thing straightened out. My friend says that there was a headline to that broadcast which read “city cracks down on smut merchants”. I submit to you Your Honors he’s in error. In the first place, the station doesn’t have headlines and I’ve asked my friend, one of the counsel who had all of the original records because the clerk had sent to him for reasons neither he nor I can understand, have asked him to give one of our boys who brought down to me yesterday all of the original records and I’m going to submit them to the clerk. It would show Your Honors that most of them don’t have anything about headlines and even this one on the front cover apparently for the advice of the announcer is called repeating the headline news. It was testified to by nobody as having been broadcast. The manager said five years later, he wouldn’t say it was or wasn’t, but he pointed out that on the same day of the broadcast to which I’m going to refer, the one complained of, there was another item in the news about two people unconnected with this crackdown who were arrested and held in $35,000.00 bail for transporting hardcore pornography. He didn’t even know whether in advising the newscaster that this was what was in there among the leading news, whether it referred to the Rosenbloom group or whether it referred to the other group and there’s not a word of testimony in the record by anybody on the subject. Now, what was the -- what was the offensive broadcast? Well, Your Honors, it consist of four lines, it’s pretty nearly the longest of them and it says, here at 350a of the record, that a Jury of six men and six women, it’s the third paragraph if Your Honors are looking at it, 350a, it says a Jury of -- it says that the special investigation squad, it’s the second item, that special investigation squad raided the home of Mr. Rosenbloom, that’s a factual statement. The second is police confiscated 1,000 allegedly obscene books at Rosenbloom’s home and arrested him on charges of possession of obscene literature. And my friend say they don’t object to that -- those two sentences. Then comes the third, the one they object to, the special investigation squad also raided a barn in the 20 hundred block of Welsh Avenue near Bustleton and confiscated 3,000 obscene books. I suggest to Your Honors, if that is read in context, then the alleged of the pre proceeding sentence applies there and if it’s read out of context, my friend Mr. Clark is again in error in having said expressly that this said that Mr. Rosenbloom rented this barn, it doesn’t. If it’s read out of context, it doesn’t even apply to Rosenbloom. It’s just an independent barn at an independent address.
Hugo L. Black: What page was that all written?
Bernard G. Segal: This is page 350a Your Honor, paragraph two. So read in context, the word allegedly simply carries over. Read out of context, it doesn’t apply to Rosenbloom at all, it turns out later it was Rosenbloom’s barn. The final sentence, they don’t object to and that is that Captain Ferguson says he believes they have hit the supply of a main distributor for obscene material in Philadelphia and that’s the whole broadcast Your Honors. Now, and then what happened? Within an hour, it was corrected. There were six more broadcasts, there was one and a half hour and then there were six broadcasts up to 8 am in the morning, every one of them put the word allegedly in. So I suggest to Your Honors that it’s quite turn at the very worst, it was a slip of the pen to have let it out and at the very worst, it was corrected within the hour. Mr. Clark said some of the later broadcast included it, every one of them starting with 7 pm, this was a 6 pm broadcast, had the word allegedly in it. Now, after this series of broadcast, I emphasize this to Your Honors, there was never again a broadcast that mentioned Mr. Rosenbloom, never again a broadcast that mentioned Mr. Rosenbloom. Indeed, there was never again a broadcast on the subject for 17 more days, not till October 21. What happened was that on October 15, this complaint was filed, that I’ve told Your Honors about in which WIP was not named, but the suit drew no attention. For some reason our friends chose not to publicize it. It first public notice the suit drew was on October 21, why? Because on that day the Court set it down for hearing, and when the Court announced it was set down for hearing, everyone learned for the first time, no one knew about the suit's existence except the plaintiffs and presumably if the defendants were served, no papers had been filed yet.
Potter Stewart: You have pocket process, well this is in the Federal Court wasn’t it?
Bernard G. Segal: Federal Court yes sir.
Potter Stewart: So it’s not, you don’t have process similar to New York’s filing process?
Bernard G. Segal: No.
Potter Stewart: So this was a public, the complaint was a public document in the --
Bernard G. Segal: Complaint was a public document if you went down and looked at it.
Potter Stewart: Yes.
Bernard G. Segal: You had the right to see it if you knew it was there.
Potter Stewart: Right.
Bernard G. Segal: Now, Mr. Clark --
Speaker: You said there were no broadcast in a way?
Bernard G. Segal: There were no broadcasts that named Mr. Rosenbloom after the ones I’ve told you about starting --
Speaker: After which one?
Bernard G. Segal: After the one starting October 4 and continuing through to the next morning, announcing the arrest.
Speaker: (Inaudible)
Bernard G. Segal: Right, 8 am, it ended. Mr. Clark said yesterday that this was not hot news since the complaint had been filed several days before. Well, I suggest to you it was not news at all until October 21 when people got to know about it and then it surely was hot news because it was the first notice anyone had. Now that, the hearing was postponed to October 25 and the next reference to the case, now, there were these broadcasts on the 21 saying the hearing. On October 25 was the next set of broadcasts and the last of which complaint is made, there were these three, the October 4 arrest, October 21 case sat down for argument, the Court announced the postponement to October 25. And so on that day there are two newscasts reporting the developments on that date. There’s only one other broadcast on November 1 to which I referred in reply to a question by Mr. Justice Stewart, and that simply nobody objects to it. It said that this alleged charge was to be decided by the Court within 10 or 11 days and there it is. None of these broadcasts on October 21 or 25 named the defendants. If anyone had a recollection back to October 4 of this arrest, there’s no way he could know whether it was Mr. Rosenbloom or whether these two other fellows who were there, was announced were held in $35,000.00 bail for the sale of pornographic literature. Nothing in the record shows that a single individual listened or heard the WIP broadcast. We know that after the most offending of them, a suit was filed, WIP was not even mentioned. We know that the plaintiff said that he never heard any of the broadcasts and not a witness was produced who heard any of the broadcasts to this day, except one that I want to refer to. In just a moment. Indeed, I think it would be well if I refer to him right now, out of the order of my argument. Mr. Rosenbloom nor his attorney and he obviously had an attorney very early in this matter, ever contacted the station. They never asked for a retraction, they never asked for the right to say anything. I think I know why and I think I’ll tell Your Honor why. There was one contact. Now, Mr. Clark was mistaken as to what brought about the contact. The record is extremely clear on that and has two witnesses on it. Mr. Clark said that there were complaints from many friends as to the WIP broadcast. And so on October 27, he said, Mr. Rosenbloom went to WIP, was not permitted to see anyone, but had one tape played back, that isn’t the story in the record at all. The story in the record is that he went to a restaurant where he met a friend named Chews (ph) who testified. Both he and Chews testified as to this and Chews said to him, say “I heard a broad”, he knew he was in the magazine business, say “I heard a broadcast”, they didn’t mention any names, “I heard a broadcast about somebody arrested and they said that they ought to put that guy in jail and throw the key away”. First, let me say there’s no such broadcast by WIP. The every transcript of every broadcast was brought into the room and adlibbing was testified, was not permitted, but he said that he’d heard this. Rosenbloom said “oh that’s me”. Now I suggest to Your Honors it probably wasn’t our broadcast because if you look at the broadcast on October 21 and 25, they don’t mention arrest. But nevertheless this upset him and he made a beeline to the station, that’s what sent him to the station. And when he came to the station, he said he wanted to talk to somebody about newscasts and they have a regular line right in the lobby, right to the newscasters for anybody who inquires about newscasters, he wasn’t denied anything. He was given the line and he called the newscaster, a man named Nick Wright, and he said to the newscaster “I’ve been told there was something about me on WIP”. According to the record, he didn’t tell him what actually happened and the newscaster said, “well, you have to tell me the broadcast” and he said well, and must have just picked the 21st because that was the day of the hearing, give me the one at noon. So the newscaster went and got them, the one at noon. Now, there is testimony in the record of what was read, admittedly it was this one, so I’d like to read Your Honor what was read to him. This is the broadcast at noon on November 21, United States District Court --
Speaker: What page?
Bernard G. Segal: It’s page 387a, first item, was a 90 second broadcast. This broadcast run from 90 seconds to 10 minutes -- reads as follows, “in Federal Court today, two publishers and a distributor of alleged smut literature will go before Judge Gold,” that was an error, it wasn’t Judge Gold, “claiming they are suffering economic and financial hardship because of a recent crackdown on such material.” Now, I suggest to Your Honors there was nothing in that to upset him. But his response, Mr. Clark spoke about what he said concerning the United States Attorney, its entirely true, he said to the newscaster, rather the District Attorney. That the District Attorney had said something and here’s what he said, “the District Attorney says that my publications are” and I quote him. “Absolutely legal, absolutely nothing obscene about them,” that’s at 137a of the record, “absolutely legal, absolutely nothing obscene about them”. Well, here was a newscaster, he said there was a public statement by the District Attorney, he knew one there was no public statement. He knew that District Attorney was prosecuting him at that moment, far from saying they were absolutely legal as nothing obscene about them, he was under criminal prosecution and number three, he knew there was a lawsuit by this very man to enjoin the District Attorney from proceeding with the criminal prosecution. By that time I suggest to Your Honors that this man is subjected to half hour newscast. He had the conversation, he’d gone back, searched out this. He found it, he read it to him, he had this other discussion and then he hung up the phone. Now I suppose he might have said “excuse me” before he hanged up the phone, my friends says he didn’t say excuse me. But it’s on that particular finding, that particular incident that Judge Lord said that there was a request for retraction or even worse and it’s on that that Judge Lord said he could sustain actual malice, that’s the only thing that Judge Lord found in the whole record, to sustain malice. I suggest to Your Honors that if you read Mr. Rosenbloom’s testimony there, if that is malice under any rule of law, then I haven’t read the case that would sustain it. Now, there never was a request for retraction. The Court of Appeals by the way, this is what it said about that. The evidence of the incident lacks both sufficient substance and clarity to meet the standard required to show actual malice and it amounted to a little more than an argument and a difference of opinion between plaintiff and one of defendant’s employees, who I had was a part time newscaster. Now Your Honors, there are the facts. Your Honors, I suggest to Your Honors, that it’s entirely clear that they involved matters of substantial public interest. These magazines are displayed on newsstands, they are not obscene. But this particular magazine, the only one in the record, my friend said the Jury read several of these in error, there’s only one in the record, the magazine, this one was devoted to youth, youth and nudism. It has a big article to teenagers. It was displayed in drugstores, it was displayed on news counters and I suggest to Your Honors that many parents would object to having their children go into a drugstore for a bar of chocolate, see this magazine, its inside cover just simply has a nude woman with all parts exposed, its other inside cover has the same. Now, I know that’s not obscenity, but I know an awful lot of the public consider that a matter of public controversy as to whether it should be displayed and the charge was against the display and sale. Now --
Speaker: What’s the number of that (Inaudible)
Bernard G. Segal: Yes I’m going, by the way, it’s not in the record, I’m going to supply it to the clerk, it’s D2. I brought it down with me. I find none of the original records are here curiously. Its D1, it’s marked D2 for identification, D1 finally Mr. Justice Harlan.
Warren E. Burger: When you say not in the record, you mean not in the record here, it’s in the record of the case.
Bernard G. Segal: Oh, absolutely Your Honor or I wouldn’t be presenting it. The petitioner advances that in this situation, in this situation, a test of reasonable care is adequate and this is what the Judge below said, “plaintiff is protected by Pennsylvania libel laws without First Amendment strictures.” And that’s what the petitioner argued in the Court below. Now here he shifted his argument. He said you are entitled to constitutional protection, but only for reasonable care. In the court below there’s not a mentioned by the petitioner of that and the Court adopted his view, but I think that’s possibly academic because under either event, I think I can show Your Honor is that newscasters could not survive at least under the present method of giving the public what I think the public has a right to know. This Court decided that in an appropriate case, thus far public official, public figure, the First Amendment protection is needed to ensure a free press, to ensure an uninhibited robust and wide open discussion, to prevent self censorship. To prevent the chilling effect of knowing what this Judge said, let me just tell Your Honors what this Judge said was the obligation. The Judge said the news medium has the privilege, this is charge to report that event, but the word event I’ve supplied.
William J. Brennan, Jr.: Is there a special Pennsylvanian state rule applicable only to use medium?
Bernard G. Segal: No, no Your Honor. Now he says --
Byron R. White: Is there a special Pennsylvanian rule applicable to the reporting of police in the Court action?
Bernard G. Segal: There is a Court action, it’s not as liberal as the common law rule, less liberal than the common law rule.
Byron R. White: What is the Pennsylvanian rule?
Bernard G. Segal: Pennsylvania rule is that you’re charge with proof.
Byron R. White: Now, when you report, there is no -- if you report the truth as to what the complaint says, you have privilege to do that?
Bernard G. Segal: You’re privileged to tell the truth.
Byron R. White: And even though it’s the reputation and one that might not be a libel?
Bernard G. Segal: I would say so.
Byron R. White: And how about reporting the arrest and charge?
Bernard G. Segal: Well, it just says judicial proceedings.
Byron R. White: Would it lead you back to the charge?
Bernard G. Segal: I would doubt it Your Honor. I would doubt the arrest in any event.
Byron R. White: But if the Court had test --
Bernard G. Segal: But the test the Court applied here was the correct Pennsylvania rule, the rule of reasonable care, but subject to state standards.
Byron R. White: And what does that say?
Bernard G. Segal: And let me read you what he said, I think this may give you --
Byron R. White: What is that rule applied to Pennsylvania?
Bernard G. Segal: Well, it applies to all.
Byron R. White: That applied (Inaudible)
Bernard G. Segal: Well, here is what he said, the news medium has the privilege to report an arrest, but the news medium must do so in the exercise of reasonable care. It must check its accuracy and it must determine whether or not it’s true or false. This was the charge that went to the Jury. Apparently it was checked that the source was Captain Ferguson said he, should there -- should the defendant have gone further --
Byron R. White: Is that the --
Bernard G. Segal: That’s the question he left for the Jury.
Byron R. White: Do you know (Inaudible) through reasonable care and the Judge said applies to reporting police action, applies to reporting of other events?
Bernard G. Segal: Yes it does Your Honor.
Byron R. White: You mean generally, if they were, the use of reasonable care in reporting news of any kind is an upset?
Bernard G. Segal: I really don’t know the answer to that. It was not involved here and I’m not a libel lawyer. I would say when I was at law school that was the rule.
Byron R. White: It was the rule?
Bernard G. Segal: Yes.
Byron R. White: It goes beyond news worthiness, any news worthy item and this maybe the reasonable care and can read and can tell a lie, a libel just lies?
Bernard G. Segal: No, I would have to recant on that. I would say that first of all, we have to fear a comment rule. Second, I would say that you are held to a high degree in Pennsylvania and I think, I’m thinking of a case now in which -- no I can’t think of a case, I can’t think of a case in which a newspaper was held for, after reasonable care.
Byron R. White: Reasonable care will only apply when reporting of public activity?
Bernard G. Segal: Yes, I think so in Pennsylvania.
Byron R. White: If you tell a lie, if you tell a lie, it is libelous, your liable?
Bernard G. Segal: Otherwise you’re liable.
Byron R. White: And you’re obligated?
Bernard G. Segal: Right.
Byron R. White: You’d pay to them?
Bernard G. Segal: Right.
Byron R. White: But none of that, as this probably shows has any constitutional underpinning either state or federal?
Bernard G. Segal: No, the Judge made that crystal clear. He said that --
Byron R. White: And it could give (Inaudible)
Bernard G. Segal: Well, he was talking about Federal, about State. He said the plaintiff is protected by Pennsylvania libel laws without First Amendment strictures, because Pennsylvania libel laws recognize --
Byron R. White: The state don’t know how many problems occurred to the First Amendment to your statement.
Bernard G. Segal: We have a more innocuous clause, but it has never been held to be a stricture on the application of our libel laws. I’m sure there’s no case in Pennsylvania that so holds. Now, I should say to Your Honors that the record will show the way these broadcasts have gotten up, little pieces or pasted in a hurry, it doesn’t show in the fine way it’s printed. They’re all sort of things crossed out, I need not tell Your Honor the time is precious, when people have to go on every half hour. I’ve asked that these now be put in the record so Your Honors can see them. Well now, I have very little time left and therefore I should like merely to say to Your Honors as to access, this man had access. Anybody arrested in a headlined item, the radio stations are avid to have them appear, but Mr. Ross, the manager testified that they find they can’t get people who’ve been arrested to testify. Their lawyers tell them to say nothing, that’s why even want to come on the radio here, that’s why he never complained, that’s why his lawyer never contacted not only us or anybody else. I want to say in conclusion that I believe that when he got into this highly controversial area of items which a substantial number of the public objects to he assumed the risk that if he became involved in a public controversy that the newspaper if it was to survive with our modern method of news casting, then he would have to be subject to the rule that unless there was calculated falsehood by the newspaper, unless it acted with reckless disregard of the truth, unless it acted with the high degree of knowledge of the likelihood of the falsity, that having become the subject of a public controversy in an area which he entered knowing of its substantial public interest. He, different from the other 200,000,000 members of the public became subject to a rule which is necessary if the freedom of the press in this kind of broadcast to survive without which, I suggest to Your Honors that with verdicts today going to three quarters of a million dollars for a man whose highest income in his lifetime was $5,700.00 would have to stop giving their present kind of broadcast and find some other way to meet the public’s right and need to know if the public is to meet its -- the obligations of a modern society today.
Speaker: Can you count from the record I assume from what you say that you didn’t try the case below?
Bernard G. Segal: No I did not Your Honor, we were not in it all. Our firm was not --
Speaker: Does the record indicate in your account for this $730,000 verdict?
Bernard G. Segal: Yes I can very clearly Your Honor. The Judge gave complete and abysmal emphasis to the fact that this man came to the station and the phone was hung down on him. The Judge said that that was worse than a retraction. His opinion shows how hotly he felt about him. I suggest to Your Honors that the Court of Appeals was right and Judge Lord was wrong, I have a high regard for Judge Lord, he was in our office before he went on the bench but he was just in error in this situation, and that exuded to the Jury.
Byron R. White: Mr. Segal, does Pennsylvania have a law specially to the publications available to children or teenager like some states?
Bernard G. Segal: I don’t know Your Honor, I am told by my associate we do.
Byron R. White: So if it happens that some reference in our cases anyway to perhaps states would agree with me and (Inaudible)
Bernard G. Segal: Oh I would say, I would say that under --
Byron R. White: Can you give example of this particular magazine you have that could be banned in New York and Texas under their special statutes related to publications like display and sold if you’re under 16?
Bernard G. Segal: I would have doubt whether this Court would sustain it but under the laws --
Byron R. White: On that statute?
Bernard G. Segal: Yes, I would doubt whether this Court would sustain it. But under the laws of many States, I believe that a magazine in all four covers of which have nude might be restricted to people under a certain age and its display might be restricted.
William J. Brennan, Jr.: Well Mr. Segal, the statute to be sustained limited to distribution to persons under 16 or 17?
Bernard G. Segal: I think the --
William J. Brennan, Jr.: The specific terms reads precisely that kind of --
Bernard G. Segal: But Ginsberg publications were far worse than these.
William J. Brennan, Jr.: There’s a difference from Ginsberg.
Bernard G. Segal: In the case yes. Well, I would say --
Byron R. White: I just wonder, if you haven’t, I just wonder if there has never been surfaced in this litigation whether that particular magazine might actually be held to be obscene with respect to younger children?
Bernard G. Segal: No and indeed the Judge in this case dismissed a year later, dismissed the criminal prosecution on the ground that it did not violate the Pennsylvania obscenity laws and also that it would be proscribed by the decisions of this Court. I would change my mind, I would say that this magazine as it stands today directed particularly at youth with Articles 14 ages so labeled would be proscribable by many state statutes and those statutes would be supported by this Court insofar as they apply to children of whatever tender years are.
Speaker: Can I ask you one more question before you sit down? I’m not clear. Are you claiming that Times against Sullivan rule should be extended to this case?
Bernard G. Segal: I’m saying Mr. Justice Harlan that when Your Honors extended the Times case from the public officials to the public figure, that what all of the scholars have said in what all of the lower Court Judges have said is the fact that Your Honors were necessarily extending it to where issues of what Your Honor called substantial and important public interests were involved that in those issues the actual malice standard would be applied. Now Your Honors have used the word or and you have used the word end and I don’t stand on that. I would rather stand on the fact that anyone who reads those opinions would conclude what the scholars had uniformly concluded, what this Court of Appeals concluded, what the Court of Appeals in MacClenny concluded, what the Court of Appeals in United Medical concluded that Your Honors, when you left the post of public official and went to public figure, you are in effect saying that the public’s right to know extended to public issues of important significant matters.
Potter Stewart: Then that means Mr. Segal doesn’t it that any newspaper or radio station can pick out any one of the two hundred million Joe Dokes’ in the United States and just by the fact, you’re picking him out and printing a news story about him, that is false, a false into the story, so long as it’s not malicious within the terms of New York Times, that newspaper is absolutely protected though it falsely defamed him, doesn’t it follow?
Bernard G. Segal: No, I would not say that Your Honor.
Potter Stewart: Because the newspaper itself can create the public figure in your situation. Take any little Joe Doke’s in the country and create immunity for itself by the very fact you’re publishing a false story about him.
Bernard G. Segal: May I give you the corollary of that and then come back Mr. Justice Stewart. Take the Walker situation. Suppose instead of just Walker suing, you had a University authority suing on the same story, you had a student leader suing on the same story and then you had an unanimous student who because of his articulateness and his leadership emerged from that incident as the man who really there after was able to lead the riot. Now you have these four people, admittedly one was completely unanimous. If I were to answer your question to the affirmative, I would have to say that this newspaper in publishing that same story had to say well we can publish safely as to Walker. Maybe as to the university officials if he is high enough to be a public figure, probably not as to the student leader but certainly not as to the unanimous man, how can the newspaper operate? Now I say that if Your Honors could show that in order to involve an individual, they created a public issue. I think probably that might demonstrate actual malice. But if you have an individual who becomes involved in something the public has the right to know then freedom of the press under the First Amendment demands that it be held for fault but that that fault be calculated falsehood or a reckless disregard.
Potter Stewart: Well, under our system of free enterprise and a free press, it’s up to these newspaper publisher to decide what he thinks that the public has the right to know, including I suppose how many showers Joe Doke’s took this afternoon or when he brushed his teeth?
Bernard G. Segal: I suggest to Your Honor that he does at his peril because I would accept, I would accept the test that this Court has set down in different language, it happens that the language of Mr. Justice Harlan used in which he said that it had to be a matter of significant and important interest to the public, I think that’s right. I think backyard gossip is not. I think if you want to engage in backyard gossip, it maybe even about a public figure, you may be liable. This Court hasn’t yet said that if you discuss backyard gossip about a public official, I know a case is coming up on a matter that was spoken 30 years before or more, this Court hasn’t yet said that the instance Your Honor presented, the actual malice will apply even as to a public official, let alone a public figure. And I would say it certainly wouldn’t apply as to Joe Doke.
Speaker: Suppose your argument is not accepted, the New York Times would not be accepted, what would be your position to that?
Bernard G. Segal: My position --
Speaker: State law, libel laws of peril (Inaudible) or that there should be some special constitutional protection as to listen to what Mr. Clark’s argued that --
Bernard G. Segal: I start with a certainty Mr. Justice Harlan that if this Court holds under present conditions where half million verdicts and million dollar and three quarter million have become par for the course, no station and no newspaper can operate as if today operates. I think they’ve got to sit down and decide what they’re going to do. I’m sure that if I were counseling WIP, I’d say you have to give up, you’re a hot news. You have to find a different way to do it because this Judge has said that every time there is an arrest, you owe an obligation of investigation. You’re handling an arrest two minutes before broadcast, what do you do? You call the policeman, he’s not there, you call the DA he’s not there, do you let it go the next day, the next day its not hot news, do you let it go entirely? I suggest to Your Honor, that with 20 items on a broadcast in a single day, I looked at 12 of them which under the Judges standard, we’d owe an obligation of investigation before we ran the newscast, can you operate that way, I suggest no. So I say to Your Honor, that it looks as if the public interest in a time and I suggest that there’s never been a time when news has been important dissent, protest, counter protest, people are avid for news, they act more quickly on news and never before in the history of our country. I think news is more important today than ever. That at such a time and with Jury showing what they’ve indicated, and I suggest to you these verdicts are more than some newspapers cost, they’re more than most radio stations cost, that at such a time, the public interest is served by protecting the individual if he becomes involved in a matter of significant and important public interest protecting him against calculated falsehood, protecting him against reckless disregard and giving the newspapers what they need and the radio stations to operate.
Byron R. White: So you say the Pennsylvania law has been what it is for a long time?
Bernard G. Segal: Yes.
Byron R. White: And you simply say that the reasonable care standard is not sufficient protection?
Bernard G. Segal: Under modern conditions Your Honor I sit on an insurance company board.
Byron R. White: Well it is not in your view?
Bernard G. Segal: Yes.
Byron R. White: It is not, not sufficient.
Bernard G. Segal: It’s not in my view under what the developments of this day Your Honor, developments to this day. Thank you.
Warren E. Burger: Very well, Mr. Segal, thank you. Mr. Clark. Clark we’ve made an adjustment in your time in relation to some extra time for Mr. Segal’s argument in chief, not for all the interrogation, you may get enlarged on that same basis.
Ramsey Clark: Thank you Mr. Chief Justice. Let me say a word to about the facts first. I don’t argue facts, the record can speak for itself, but some of views indicated in the nature of the argument and rebuttal. Mr. Segal complaints about our reference to a headline, there has been no, on this broadcast, there has been no complaint about reference to headline before, it’s clearly in the record, page 26a, it’s in our briefs as testified to at the trial and it characterized the nature of the broadcast. He complaints about our describing the broadcast to series, they were clearly series, they would go on every 30 minutes after they began. I described them as a single series, but its two series that over a period of time occupied almost a month beginning October 4 and 5 and picking up again October 21, going to November 1. I think his reference to the record where Mr. Rosenbloom met someone in a café who describe the broadcast that he heard and his reaction shows the real problem of a little man. If you’re Edwin Walker or if you’re Wally Butts or someone and there is something derogatory said about you, your phone rings all night, the press wants to get your views about it, they’re anxious to hear from you. If you’re George A. Rosenbloom, nobody calls. You find out from your friends. You find out when you go back around to serve some account and they won’t buy it from you anymore. You find out you’re ruined and then you got to find out why and you are going to have to do it on your own because you’re a little man and nobody is going to take care of you, you are not allowed --
Potter Stewart: Mr. Clark, there may be a difference between a newspaper and a radio in this respect because of the obligation of radio to give equal time, an obligation that’s not shared by a newspaper, and that obligation means that your client would have or his friends and supporters will have access to the radio, wouldn’t it, on at least very station to express his point of view?
Ramsey Clark: The equal time theory and the law shows that we are prepared to require the radio to try to be fair, but equal time refers to opinion to raise, the editorialization of this did smack of sensationalism and the views of the trial Judge and of editorializing, but I don’t think that there has been any extension of equal time to the ideas obtained in news reporting, people as to whom news is reported have an opportunity to come on in and say something if a commentator has an editorial and he discusses you or an issue then you have an opportunity, but certainly within my experience, there has been no equal opportunity time on fact news broadcasting and I’m not sure how you would function with something like that. Mr. Rosenbloom couldn’t even get them to discuss the issue with him, how he would have gotten in, I mean they hung up on him, that’s how he can reach the Metromedia --
Potter Stewart: Well I understood Mr. Segal to say and I -- perhaps he was just commenting from his general knowledge, but I understood him to say that the record showed that the radio stations are very anxious to have people like your client to come on in their news broadcast and he can’t --
Ramsey Clark: (Inaudible) is coming and reporters find, my understanding of his comment was, if the reporters find that people who are charged with crime don’t want to discuss that with them, their lawyers advises them not to discuss that with them and that maybe generally true, what has that got to do with this case?
Potter Stewart: Well, I think it may have to do with the difference between a radio and a newspaper. A newspaper we all know if it so wishes has the last word, it prints an editorial and it has no obligation to give equal time and equal space to an opposing point of view, but a radio station or a television station is in quite a different legal position, it has an obligation to make its own facilities available for an opposing point of view.
Ramsey Clark: I don’t believe there’s any law that indicates that there is a right to equal time for news broadcasting, but even if there were, I think Mr. Rosenbloom quite as clearly illustrated in this situation, you know Mr. Segal says it was October 21 when he first discovered about the broadcast, that doesn’t mean he wasn’t hurt, he was deeply and desperately hurt, but how could he know, he can’t listen to every radio stations broadcasting, how is he going to find out. He finds out when somebody tells him, and then he goes down and he tries to talk as a little man at the people at the station, they get a part time man to talk to him on a telephone that he can’t even see and that person hangs up. It’s very important too I think that we realize if this was submitted to the Jury on a single charge. There was no effort by the defense in the trial of this case to say was this allegation true or false or obscene, it was all submitted on a single charge, the whole period of time. Had there been some distinction there then I think maybe this Court could try to make some distinctions between the separate allegations but when you take them all as a whole, they wind up leaving the impression that the man in the café who gave to George Rosenbloom, they want to lock that guy up and throw the key away, and that’s the best that he can find out as an individual.
Warren E. Burger: But you think the alleged libel is to be evaluated on what someone thought was said or what was actually said?
Ramsey Clark: No, the libel is to be evaluated on what the Jury had before it in the record, all these material. I’m just saying that they could -- that the impression that was left as the trial Judge showed in his opinion, I didn’t say just charge the Jury, he didn’t say anything about retraction in his charge to the Jury, that all came after the Jury verdict when he wrote his opinion.
Warren E. Burger: On what theory did the Trial Judge admit an evidence, the statement of this friend whom he met at the restaurant as to what he thought he had heard? How is that in relevance?
Ramsey Clark: Apparently there was no objection to it and certainly respondent shows no concern about this time because he’s the one that injects it in this hearing not us. But I assume it was to show how it was that Mr. Rosenbloom came to inquire of the radio station, why he went down to the radio station to see what they had played. It’s very interesting to note too that there are eight women on this Jury that they saw that magazine and we can tell what impression it had on them by the verdict they gave.
Speaker: Eight women on the Jury?
Ramsey Clark: Yes sir. Let me now state again my view of the law, before I do it, I think it’s important to realize that Mr. Rosenbloom was put out of business. He lost 34 of 60 accounts right away and he subsequently had to go out of business. I think there’s going to have to be some lines Your Honor on New York Times and I think the First Amendment will require these things. Where the discussion is of an issue that it be uninhibited, robust, wide open, you can discuss nudism, you can discuss magazine distribution. That to have actionable defamation of a public official or a public figure because public figures are part of the story, they’re part of the process of learning the truth, they can be the done only where there’s actual malice, only where there is actual malice can recovery be made for defamatory action. But where you come to the individual, the private person who has no chance to engage really in robust or wide open discussion of these issues with Metromedia, that the power of technology and communication, the power to debate these issues in the marketplace of public opinion for private citizens in this country is very, very limited and they can be crashed as well as Mr. Rosenbloom. So, actionable defamation of a purely private person such as he can be maintained only where there is a lack of reasonable care, that happened to be the Pennsylvania standard. That was the standard that was applied here, but to support the punitive damages, there was also a charge of malice and the Jury found actionable damages and it found malice under the Pennsylvania Law and that charge was very similar to the charge in the Butts case and as you know the Butts case, the recovery was allowed to stand, I think that would be fair here because there was no way for the Attorney for Mr. Rosenbloom at that time to ever believe that New York Times v. Sullivan could be extended from the commissioner of police in Montgomery County to George A. Rosenbloom when he was confronted by both the police and the press in opposition to his livelihood.
Speaker: Can I go back to something you have said yesterday about Justice Brennan. You started off as I got it that you wrote this question by saying that you recognize at some kind of a constitutional rule, Federal Constitutional Rule independently of State Law was necessary in the case like this?
Ramsey Clark: That’s my opinion of where the Law ought to go, it’s not there at this time in my judgment.
Speaker: So that you’re not -- you don’t stand on the proposition that which was his question as I understood it that whatever state law maybe in this none public figure attitude, state laws should be allowed to take their course? You don’t argue that?
Ramsey Clark: I don’t argue that. I think timely heal shows the problems there but I think there’s immense difference between defamation --
Speaker: Now what do you really arguing for then is the constitutional rule of Butts rule?
Ramsey Clark: No sir, I’m really arguing for the constitutional rule that you’ve expressed in at least two opinions that negligence be the standard where it’s a private individual. But as to the masses of our people, they don’t have no opportunity to really debate, there is no marketplace in which their opinions can be tested against Metromedia, and therefore, anyone who will defame them must use reasonable care to ascertain the truth of what he says. The purpose of the First Amendment is truth.
Speaker: Well, then the circumstance that Pennsylvania has this reasonableness test is just a circumstance, you’d accept that as the constitutional rule?
Ramsey Clark: It would fall within what I would consider an acceptable federal constitutional rule and therefore it would be any lesser rule within the state wanted to impose would be adequate, but this rule requires reasonable care even for the private citizen --
Speaker: And the lesser rule would be adequate?
Ramsey Clark: That is any rule that didn’t impinge more greatly on free speech, yes.
Potter Stewart: Would you think it’s just sort of coincidence that the Pennsylvania common law rule happens to meet your view of what the Federal Constitutional standard should be?
Ramsey Clark: No sir.
Potter Stewart: I thought your argument was at least, no I didn’t think so, but I, you can certainly make the argument that in cases of private, purely private -- suits for defamation of private citizens, the Federal Constitution is not involved at all but if it is, if it is then it certainly requires no more, no different or higher or more stringent standard than the Pennsylvania common law rule now thus provide. Frankly is what I thought your argument was before the argument --
Ramsey Clark: That was perhaps be my argument as an advocate in this case that Mr. Rosenbloom’s judgment here would be affirmed under any of those tests. Mr. Justice Brennan asked me my view as a lawyer, my view as a lawyer is that the Constitution does provide some protection to freedom of the press and freedom of discussion even of the little people, that that is important to the discovery of truth too but where you are going to discuss the little people, you’re going to have to exercise reasonable care. And because the little man can’t show actual malice, how can George Rosenbloom show that there was actual malice in Metromedia, they never heard of him before, they don’t know and they never met him, he can’t see them face to face, he has to talk to them over telephone.
William J. Brennan, Jr.: Do I correctly infer from what you said that your suggested test where the private citizen is involved would be a test applicable only where the alleged libeler is a newspaper or other member of the news media? Would it apply for example between private citizens where the libeler is just my next door neighbor?
Ramsey Clark: Yes it would Mr. Justice. My view is the central purpose as you stated so beautifully of the First Amendment is the activities of government, that they really be open to full vigorous discussion and debate so that the truth maybe known, but there’s some value to in discussion in knowing the little things about little people, but if you discuss them in a way that does more than invades their privacy, that actually defames them and injures them and puts them out of business, you’re going to have to use reasonable care, because we do have that regard for the individual here too.
Byron R. White: Why is it they even have to -- why should there be any constitutional rule at all, Federal Constitutional Law at all as between private persons where the one person, one kind of person liable to another private person, why shouldn’t just the existing law of libel be permitted to stand?
Ramsey Clark: Well, I don’t think the Court needs to reach that case here and I’m sure that it won’t feel that duty itself. In my judgment though, the discussion of the issue is valuable, that’s how you find the truth and we need to have some room there, but we do need to have reasonable care because it’s awfully important that press have exercise care too with the concentration we have there. If there is no standard of care, if we have to show actual malice, how will get excellence to professionalism in our effort to report the truth.
Warren E. Burger: Mr. Clark, in your colloquy with Justice Harlan, I thought you said the, something to the fact that the First Amendment was only intended to protect the truth?
Ramsey Clark: No Your Honor, I said that the purpose of the First Amendment is the truth. I think discussion has to have wide breathing room and certainly everything I’ve tried to argue indicates that, but there’s nothing in the First Amendment that says you can -- that our purpose is to permit untruthful statement, purposeful untruthful statements, malicious statements. The purpose of the First Amendment is the truth, to be sure that the truth can be discovered because it’s very difficult to find, we have to give it a wide, wide breathing room, where public officials or public figures are involved, actual malice should be the rule, as has been stated by this Court in Butts and Walker and New York Times. But when it’s a private individual, if you feel you have to comment on them rather than issues which they’re engaged in, and you can have a very vigorous discussion of the issues without defaming an individual, but if you go to the private individual, then you must use reasonable care.
Speaker: For sure your preferences on constitutional rules is called for federal rules, it carries with it I think. The obligation to this Court whatever the rule is, take a look at this record for the subject for itself, after what we said in New York Times against Sullivan, and what we did.
Ramsey Clark: We cherish for your speech and it think that is indicated here.
Speaker: That’s entirely true.
Ramsey Clark: I think the fact that the defendants did not ask for special charges or special instructions or special findings on the various broadcast indicates that the Court will have to look at the thing as a whole too. As I’m sure some of the customers, the buyers from Mr. Rosenbloom did, because they heard them all and they knew that this was Mr. Rosenbloom that they knew.
Speaker: (Inaudible) has not been awarded. You think that this record would sustain any constitutional rule except the $750,000.00 verdict?
Ramsey Clark: Well I think we’ve sustained verdicts of that dimension. I think it’s impressive that the jury felt that an individual had been so offended.
Speaker: New York Times verdict as I recall it, my recollection was $500,000.00 which led to strenuous events, it was older than that particular constitution rule and so 5852.
Ramsey Clark: That’s true and I think the biggest verdict of all was in the Butts case which this Court permitted to stand.
Potter Stewart: Did I understand Mr. Clark -- I’m sorry, excuse me, had you finished your answer?
Ramsey Clark: Yes.
Potter Stewart: Did I understand you it to be your view that there is no constitutional difference between defamation published or uttered by a newspaper or radio station and news program on one hand and defamation uttered by a private citizen on the other? In other words if I say our neighbor up the street Mrs. Jones is a prostitute, then I’m protected by the First Amendment even though that is false so long as in the exercise for ordinary care I heard she was and just casually and untruthfully repeated that that I replayed.
Ramsey Clark: I think that maybe somewhat implicit there, we talked about free speech and we talk about free press.
Potter Stewart: You don’t distinguish?
Ramsey Clark: I think they’re both valuable and important, and I think that reasonable care though where the private individual is concerned in mass society, it’s going to be essential to human dignity. I just don’t how the little man can survive if the press decides to go after him, you’ll never show actual malice.
Potter Stewart: Or the little woman.
Ramsey Clark: Or the little woman. [Laughter]
Warren E. Burger: Mr. Clark,--
Ramsey Clark: We need a word that covers both or a little yet --
Warren E. Burger: I’m interested on that testimony on page 26a, could you put your eyes at that for a moment. That’s the testimony relating apparently to the first broadcast. Taking the first sentence which is five lines, that’s the sentence in which they refer to confiscating 1,000 allegedly obscene books. If that is all they have said, at the end of that sentence --
Ramsey Clark: The next sentence Your Honor says --
Warren E. Burger: No, let’s take the first one. Well, the first two sentences excuse me, but particularly one, police confiscated a thousand allegedly obscene books from Rosenbloom’s home and so forth. Would that be libelous?
Ramsey Clark: The first --
Warren E. Burger: Or is it a recital of fact?
Ramsey Clark: The first two sentences would probably be alright under the protection of the First Amendment. I think they’re reporting a new story, the police did do these things. The second too involved quite different considerations but the headline begins with the characterization of smuts -- scratch down on smut merchants, there were on that day seven or eight arrests, the material seized on October 1, Mr. Rosenbloom were only a small part, a very small part of the material seized. There were twenty people arrested that day. In this enlargement of his role, this characterization of him is not going to raise him in the esteem of his customers or his fellow man.
Warren E. Burger: Well, if you say that the first two sentences are probably protected utterance, the next sentences in which they are describing this whole episode with involving issue say 20 men, the next two sentences don’t describe Mr. Rosenbloom at all.
Ramsey Clark: Well, I’m not sure that the listener having heard the George A. Rosenbloom and hearing this all around together is going to assume that they’re talking about anyone else. We have, I think even Mr. Segal said if you take that sounds out of context but can we really assume that the radio audience takes it out of context? You’re driving along in your car and you hear George A. Rosenbloom and they’ve seized 3,000 obscene books and they’re cracking down on smut merchants.
Hugo L. Black: But you stated at the end of your brief that the foregoing reason of the decision with the Court of Appeals should be reversed. The case remanded with directions of judgments be added for the plaintiff for how much?
Ramsey Clark: For the actual damages or general damages as they’re called in Pennsylvania $25,000.00 and the punitive damages as reduced by remittitur to $250,000.00.
Hugo L. Black: You are not asking for the entire $750,000.00?
Ramsey Clark: No sir.
Hugo L. Black: On what basis do you think the Court had the right to reduce it, $750,000.00? If your judgment -- if your argument is correct. Why should they reduce?
Ramsey Clark: Well Your Honor, we haven’t really raised in our petition for certiorari the power of the Court to reduce it and if -- or in the court below so if that’s something is really not here on the record, the --
Hugo L. Black: Do you think evidence should be admitted as to what radio company when a suit like this is against them, a punitive damages, under the, some at least in the country couldn’t pay a $250,000.00 judgment and continue to exist?
Ramsey Clark: Well, I imagine there are Your Honor. That was a ruling of the Trial Court and it’s here without objection at this level.
Hugo L. Black: Are you accepting then the $250,000.00?
Ramsey Clark: That’s the status of the case in this posture, yes, Your Honor.
Warren E. Burger: The only way you could have challenged that would be cross appeal I assume?
Ramsey Clark: I think we would have an obligation to raise that as a basis for our --
Hugo L. Black: You don’t think this Court should adopt some kind of a rule, do you, that would limit the amounts that can be recovered in damage suits of this size, in spite of that, say it shall not be more than a certain amount?
Ramsey Clark: Well I haven’t really considered that Your Honor, and I think I would have to, to be helpful to the Court. That maybe something down the road, if I don’t think you can embrace free speech I think we have to live by the First Amendment, in fact, we would be a lot better of if we insist on it.
Hugo L. Black: Of course, there might be something better than trying to decide between the mythical public figure and the mythical public official?
Ramsey Clark: Well, there maybe another test, the only other test I can see is the newsworthy test or the issue test, and I don’t believe distinctions can be made there. I think when the news broadcast something it is ipso facto news worthy. And I think really what defamation is all about is people and reputations and that’s where the hard line will have to be drawn between the private people. They were not within the original contemplation really of the First Amendment in the sense, we’re not scrutinizing the conduct of public officials here and the mass power of media that they can’t answer or really debate with.
Hugo L. Black: How do you think -- what kind of rule do you think should be established for juries to be told that they’ve got to decide whether the man is a public figure?
Ramsey Clark: Well, at first, if he’s a public official, I think that's pretty clear. I think if he is a public figure then the test might be whether his history has been such that the story could not have been meaningfully reported without his inclusion whether there was something about it. How could you report the Georgia -- University of Georgia football story without referring to the coach? Clearly, General Walker’s involvement was at the most important news worthiness and it said here is a man who had been a commander in Germany, who had been at Little Rock at the time of the integration desegregation of central high school and who had been on television a week before in Dallas and advising Governor Osborn, they don’t have the act. I think the question is whether the person has an identification in the public view, in the community involved, among the people whom he is defamed that makes his inclusion in the story news worthy. Now, here there were many other people arrested, they are not mentioned by WIP just George A. Rosenbloom.
Hugo L. Black: Well a football coach is usually a petty public figure?
Ramsey Clark: Yes, I think so. I say I do not see how you could have reported the story on the University of Georgia without -- and the football team and the allegations there as to --
Hugo L. Black: Have to be public as General Walker?
Ramsey Clark: Well maybe more so in the some parts of the country.