Earl Warren: Number 22, Time, Incorporated, Appellant, versus James J Hill Mr. Nixon, you may continue your argument.
John M. Harlan II: Mr. Nixon, at some stage, either now or later on, I wonder if you could summarize what you understand the jury thought that they were supposed to find in order to find for your client under the judges' instruction.
Richard M. Nixon: Mr. Justice Harlan, I'll be glad to do that. And preliminary to that, if it may please the Court, could I respond to two questions and elaborate on them that were raised yesterday, one by Mr. Justice Black and another that was raised by Mr. Justice Brennan and also incidentally by Mr. Justice Fortas. With regard to the questions raised by Mr. Justice Black, you will refer that in my opening argument, I referred to the article “Fiction out of Fact” which had appeared in the New York Times Magazine in which the author of the play, “The Desperate Hours”, Mr. Hayes, had stated that the -- that there were four different incidents which had inspired the play. And that as far as the final product was concerned that it was unlike any of the incidents about which he had read. One of those incidents was the incident in Philadelphia. Mr. Justice Black questioned me about what he said was an earlier article referring to two instances. The earlier article I have before me and I refer the Court to that article which appears on page 427 of the record. That article was not in the file of the defendant. It therefore does not bear on the knowledge that defendant had when he wrote the play or -- or the book. But the article is significant, it seems, on the basic point as to the question as to whether “The Desperate Hours”, the -- the article, “The Desperate Hours” -- on “The Desperate Hours” in Time Magazine and the book and the play were reenactments of Hill incidents. For example, if the Court will turn to that page, it will find that Mr. Hill refers to three different instances which he said caught his imagination. One was the fact that he lived near a correctional institution in Danbury, Connecticut. And he wondered, “What if there were a prisonbreak and one or more of these desperate men escape in that direction?” Then he said he had read newspaper accounts a year before describing an occurrence in New York State not far away. In this occurrence, there was a hostage instances in which there was “subsequent and inevitable violence in which a man had stabbed a child to death.” And then I quote, “Shortly after this, or perhaps a month or two before, three men escaped from a prison even further away from my secure and comfortable home. Holding a family hostage, they hid there eating and sleeping and then left without violence, without the inevitable bloodshed.” Now, while this article was --
Hugo L. Black: Do you say that's related to three incidents?
Richard M. Nixon: It related to two hostage instances and the fact that the defendant -- I mean that the -- that -- well, that the -- Mr. Hayes was a defendant. Liability was not found in his case that he lived near a prison and referred to the fact that he has thought of the possibility of prison breaks.
Hugo L. Black: Two incidents.
Richard M. Nixon: Two incidents, that's correct. But the significant point is that as far as this particular item is concerned that it was an item first that was not in Life's file. It, as --
Hugo L. Black: But whether the --
Richard M. Nixon: -- as was the other item --
Hugo L. Black: -- whether it was there or not.
Richard M. Nixon: But -- but -- yes, sir.
Hugo L. Black: It showed that his statement that that inspired his article.
Richard M. Nixon: The question, Mr. Justice Black, is not a question of inspiration. The question is whether the Life article is false or true in stating that the Hill incident was a reenactment, not only in --
Hugo L. Black: Well, that --
Richard M. Nixon: -- terms of --
Hugo L. Black: But the word --
Richard M. Nixon: -- the one word but in term --
Hugo L. Black: -- the word reenactment, there could be many other words. You admit it as I understand it before. If he said reminiscent, it would've been all right.
Richard M. Nixon: I would -- would beg to qualify that by stating that in answer to Mr. -- the Chief Justice's question on reminiscent, I was -- he -- his question was quite explicit. His question was, “In the event that they had used the word ‘reminiscent' and then had described the Hill incident as it have occurred, would there had been a liability?” And my answer was no. But that is not what happened here. In this particular instance, they said that the Hill incident was a reenactment and they've said it not only by one word but they've said it by all of the pictures including the six pictures. And my point is that those six pictures do relate, to what? Violence and bloodshed. And I come again to the article in the author's own words, that as far as the particular incident to which he refers in this particular article is concerned, that it was distinguished from the incident in New York because they hid there, eating and sleeping and then left without violence and without inevitable bloodshed. And it has been our argument and our contention throughout this case that The Desperate Hours, the heart of The Desperate Hours, is a story of violence and bloodshed, that the heart of the Hill incident was the fact that it was one that was distinguished by a lack of violence and bloodshed. And here, we have it in the author's own words. Now, a second point that Mr. Justice Black raise, however, I think also should be commented upon. He referred quite properly to the fact that Mr. Hayes had been present at the time that the pictures were taken in the house. When those pictures were taken in the house, however, it is significant to note what went on in terms of whether the representatives of the defendant discussed with Mr. Hayes the basic question as to whether the article which was eventually to be written, or at that point, The Desperate Hours which -- about which pictures were to be taken, whether The Desperate Hours was a reenactment. And on that score, I refer the Court to page 124 of the record to these questions. “Very briefly, Mr. Hayes, would you tell the jury whether or not The Desperate Hours is the story of or reenactment of the Life episode?” Answer, “It is not a story of, it is not a reenactment of that episode.” Question, and this is the connected one, “Did anybody from Life Magazine ever asked you whether it was?” Answer, “No, they did not.” Question, “Did you ever tell anyone from Life Magazine that it was?” Answer, “I did not.” “And you never told anyone of Life Magazine about any similarities?” “I did not.”
Hugo L. Black: Did he not --
Richard M. Nixon: Now --
Hugo L. Black: -- did he not testify another phrase, “Yes,” when he asked of Prideaux -- he had talked to Prideaux about this when asked whether he told Prideaux if there had been an action, he has replied, “I told him there had -- had an incident in Philadelphia. I told him there had been.”
Richard M. Nixon: Exactly. As a matter of fact, you told Prideaux that and Prideaux --
Hugo L. Black: And then arranged to get the house.
Richard M. Nixon: It -- exactly. And Mr. -- and as -- and further in this testimony, it will be pointed out that Mr. Hayes in answer to questions, indicated that the reason that this house was selected was because the play was opening in Philadelphia. And that he could've used any house in Detroit or in California --
Hugo L. Black: (Voice Overlap) --
Richard M. Nixon: -- or in New York or in any other one, excuse me.
Hugo L. Black: And yet they -- they head to Philadelphia and picked up this house from the -- from distance in Philadelphia and use it.
Richard M. Nixon: The play was opening in Philadelphia, sir. That was the point. The play was opening in Philadelphia not in New York.
Hugo L. Black: Well, how did they happen to select the one that Hill had lived in?
Richard M. Nixon: Because that's where the hostage instance in Philadelphia had occurred. But my point is that the -- as far as the selection of the house was concerned, that it was selected because the play was opening in Philadelphia, and Hill testified that had the play opened in another city where a hostage instance had occurred, that he could've used and he, of course, would have been delighted in order to get publicity for the play, he would have been -- could have used any other house.
Abe Fortas: You don't mean Hills.
Richard M. Nixon: I'm sorry, Hayes. Hayes would've been delighted to get publicity for the play and he would have produced, of course, in the other house. If I could go further, the point that is to be made, however, is that during this process, the three-month period in which the article was being written. And during the day in which the pictures were being filmed at the house in which Mr. Hayes was present, not once did the representatives of the defendant questioned him as to whether those scenes occurred in that house. Whether they had inserted in the films and --
Hugo L. Black: But why should -- why should he have questioned him? They both understood it had occurred there.
Richard M. Nixon: Well, if they --
Hugo L. Black: Conversation between them showed it.
Richard M. Nixon: If --
Hugo L. Black: And they went there for that reason.
Richard M. Nixon: If -- if they -- the reason, sir, that they should have questioned him is that that's the heart of this case. The heart of this case is that the violent episodes pictured in six pictures in Life Magazine did not occur to the Hills, and Life Magazine stated by pictures and by word that they did. And this is the question that Life Magazine, the defendant in this case has not been able to answer.
Hugo L. Black: But that is like --
Richard M. Nixon: And it has not been able to answer it because it had knowledge even before they went to the house, may I say. It had knowledge that again, from an article in its file, in its file which Prideaux, the picture editor had read. They had knowledge that as far as this particular incident was concerned, it was one of several that had been read about by Mr. Hill and that the final product was different from any one of them. And the point that we are making in this case is that Life -- that the Life article is false, false in stating by picture, by every editorial device with no qualification whatever that the Hill incident was reenacted in The Desperate Hours. That the Desperate Hours family is the Hill family, that the violence that occurred in The Desperate Hours, that a father beating the son, the violence in respect to the murder of the trashman, the participation, for example, of the father in a plot, unwillingly, of course, for the purpose of murdering the -- the deputy sheriff, the wounding of a boyfriend, as a matter of fact, there was no boyfriend. All of these incidents, all of them which were in the Desperate Hours and which made it the hit that it was, did not occur to the Hills.
Hugo L. Black: So that was a blending --
Richard M. Nixon: And --
Hugo L. Black: -- that was a blending of fiction with facts.
Richard M. Nixon: It was stating that fiction was fact, it was more than that. It was fictionalizing the Hills. It was using the Hills as commercial props for the purpose of selling more magazines. It was creating a story rather than reporting a story. And that is the heart of the tort under the New York law. If it had stated, as Mr. Chief Justice Warren very precisely hit this point in his question, if it had stated that this was reminiscent of this item and then had described the Hill incident as it occurred, then Life article -- Life Magazine would not have been liable. But I should also point out, Life Magazine wouldn't have had a story.
Hugo L. Black: Why wouldn't it?
Richard M. Nixon: Well, it wouldn't have had the story because it wouldn't have been newsworthy. That is why the --
Hugo L. Black: Why wouldn't -- why wouldn't it? They should certainly have referred to the other things that was (Voice Overlap) --
Richard M. Nixon: Let us -- let us go then -- let us go to then why? Why Life Magazine. And when I refer to Life Magazine, I am referring to, of course, an institution, 24 editors, senior editors, 41 other managing editors and 281 --
Hugo L. Black: (Voice Overlap) --
Richard M. Nixon: And -- what might -- what I am suggesting is this, sir, that -- that I am referring to anyone of the individuals who may have worked on the article. But in this particular instance, the Life Magazine, as far as checking on this item, did not do so. And they did not do so because Life Magazine knew what the truth was, and the reason --
Hugo L. Black: But -- maybe they didn't do so because any reasonable person would've thought, as I read this record and I've read every line of it --
Richard M. Nixon: Yes, sir.
Hugo L. Black: -- from the -- what this man had said, the author that he did found it on the Hill incident. Any reasonable man would've reached that conclusion particularly when they took him down to the house to make the pictures and got the house for him.
Richard M. Nixon: Reasonable men can disagree. And I would say that any reasonable man reading the Hayes article, Fiction out of Fact, which Prideaux did and which stated specifically that The Desperate Hours was different from any hostage incidents. That then -- that certainly put him on notice that The Desperate Hours was not a reenactment. And certainly, it would indicate that the editors of Life should check to see whether or not, editorial, they should strike out the word somewhat fictionalized. They should strike out the words that this was the Hills' former home and whether or not they should change the article that read to be the story of the Hills rather than the story of the play. In other words, they had being true crime rather than The Desperate Hours, understand this is editorial changing and altering the facts substantially for the purpose of making the article. And I quote from Life's own editorial stuff, “More newsy, it was a gimmick, an editorial gimmick.” And the question is, “Are private persons involuntarily drawn into the vortex of a public issue?” As Mr. -- the counsel for the appellant had indicated, “Are private persons by this Court to be allowed in effect to be used as gimmicks for commercial purposes in a falsified situation,” in which I would suggest here an editorial organization, “the larges in the world with more resources to question the facts than any other to be allowed to be used here in a fictionalized situation?”
Hugo L. Black: The commercial purpose you referred to is selling magazines?
Richard M. Nixon: The commercial purpose I referred to is decree --
Hugo L. Black: But they're selling magazines for a profit.
Richard M. Nixon: Magazines are sold -- sold for profit. And for its --
Hugo L. Black: Anything wrong with that?
Richard M. Nixon: Not at all. Let me -- let me refer, sir -- I am also quite familiar with Mr. Justice Black's -- not only his -- his various opinions but also his dissenting opinions. In Brear versus Alexandria, that dissent which, I think, is perhaps, if I may -- if I may use the semantics of this particular case. Well, not a reenactment, it's reminiscent. In Brear versus Alexandria, Mr. Justice Black, in dissenting from a holding of this Court which held an ordinance to be valid providing for regulation of -- of salesmen for magazines, Mr. Justice Black said, “If this had been a case so a salesmen of pots and pans, it would've been a different situation.” What was he referring to in my --
Hugo L. Black: That's the kind of prior case decided by this Court.
Richard M. Nixon: Yes, sir. What I am suggesting here, though I'm using it only by analogy. And I am suggesting here that Mr. Justice Black there was putting his finger again on the heart of this case and the heart of this law. What he was saying, even though that was a dissent, what he was saying there was that if the purpose was commercial, that is one thing. If the purpose is to sell magazines with no -- and not to sell pots and pans out of something else, now, let's come to this particular item. We have here true the selling of magazines. And the use of the Hills, reporting on the Hills as news to sell magazines, they can have no objection to that if they are newsworthy. Using the Hills --
Hugo L. Black: There's no doubt --
Richard M. Nixon: -- in a news story.
Hugo L. Black: And there's no doubt about this being newsworthy, is it?
Richard M. Nixon: Oh, absolutely. There is doubt about --
Hugo L. Black: In here?
Richard M. Nixon: -- newsworthiness. The question here is whether or not we are going to say -- whether or not we are going to say a fictionalized account, a fictionalized account has a newsworthy privilege, this is the question. We talk about newsworthy privilege in the one sense and we're talking about here whether a fictionalized account is entitled to that privilege. And what we are saying here is that this was a commercial use and not a news use.
Hugo L. Black: (Voice Overlap) --
Richard M. Nixon: And that a commercial use under the rules of this Court --
Hugo L. Black: Suppose they ran a magazine for profits.
Richard M. Nixon: They were running a magazine for profit.
Hugo L. Black: And if they did, the New York law covers that. Those that (Voice Overlap) --
Richard M. Nixon: They were running a magazine for profit.
Hugo L. Black: -- in the Constitution.
Richard M. Nixon: But what I am saying is that calculated falsehood, whether it is calculated falsehood which injures reputation or calculated falsehood which injures privacy, should not be used for profit in selling magazines. That is the heart of this case. Now, the other question that I would like to comment upon, if I may refers, to a question, Mr. Justice Brennan and -- and which presents also the -- a -- which are -- allows me to comment on a colloquy between Mr. Justice Fortas and counsel for the appellant. It would be more comfortable for a counsel in any case to say that his case and all cases under the law are black and white, that is not the case here. And it is not the case in libel. I would suggest, Mr. Justice Fortas, that libel -- the libel law going back in the -- in the common law goes back be -- about -- between 400 and 500 years. And still today, even in this Court, there is the debate between the definers and those who believe there should be a balancing test as far as libel is concerned as Mr. Justice Brennan pointed out in his (Inaudible) lecture. That decision has not yet been made, and this Court has other cases on the question of libel as to what the rule should be. There are gray areas in libel. There are also gray areas in the field of privacy. This field started when, 60 years ago, in the State of New York, 63 years ago. What I am saying here is that here, there is an interest, privacy, like the interest of reputation which is involved in libel which a State should have the right to protect. There is, of course, the interest of the First Amendment. And if this interest is to be protected, it must be consisted with, of course, the First Amendment. That's the problem in the libel case. That's the problem that this Court considered and ruled upon in Sullivan, Rosenblatt and Baer, Layne and Garrison. It's also the problem in this privacy case. Now, there have been statements made to the effect that the law in New York clearly apart from its application to this case, and this is Mr. Justice Brennan's point, that the law in New York is too uncertain. It -- it leaves hanging over, prospective publishers in the future doubt as to what the law is, and that basically would raise a very grave First Amendment problem. And also, it leaves a question as to whether the law might be applied in a future case in an unconstitutional way even though this Court might find, and under the facts of this case, it was applied constitutionally. Now, let me comment on that briefly. In 63 years, the courts of New York, in interpreting this statute, have recognized the newsworthy privilege. In 63 years, there has never been a reported criminal conviction under this statute. In 63 years, there has never been a reported holding of liability for a current news story. And in 63 years, there has never been a case reported in which liability was held for a truthful account of a newsworthy item. Now, let me refer to the last point which has been questioned. The first two I do not think have been questioned. A truthful account of a newsworthy item, the leading case there is the one that Mr. Medina has mentioned as his leading case, the Blumenthal case. Now, let's look at Mr. sBlumenthal for just a moment if we may, not for six seconds but for maybe two minutes. Mrs. Blumenthal goes back to an era in movies. Before, we have the great three-hour features in which it was not necessary to have any added inducements to bring people into the motion picture theatres. In those days in the early theatres in the year -- in the early 1930's as you may recall when you went to the movies. Usually, there was a feature movie of about an hour and a half. Then there was a newsreel, and third, there was the comedy. Now, what does the New York courts hold on this particular instance? In here, we have, I think, an indication of the precision and a great care which the New York courts have exercised in applying the statute. You cannot read Blumenthal without reading Humiston. Humiston decided in 1919. Humiston was a newsreel case. And there, a lawyer who was the subject of a newsworthy item saw his picture in front of a movie theatre advertising the newsreel. The courts held that because it dealt with a newsworthy item that there was no liability. That was the newsreel. Now, we come to Blumenthal. What is Blumenthal? Blumenthal was not a travel log, it was not a newsreel. Blumenthal involved four comics and the picture was advertised in the theatres in this case incidentally as "Nick and Toni Ace Funsters." Four comics, two of them played the parts of guides and two, the parts of school teachers who traveled for 15 minutes around New York and made comments about what the passing scene showed. And for six seconds, they put Mrs. Blumenthal on the screen. Now, there may be questions as to whether comments were made about Mrs. Blumenthal. Counsel for the appellant suggests that they were not. That is not the heart of the point. In a production, which is not a reported news, in other words, a newsreel or -- and cases of Gautier, in a production, a television production, which is not showing the plaintiff in the particular capacity in which he attended that particular event which was involved, but in a -- what is strictly a commercial venture having nothing to do with news, are we going to say that Mrs. Blumenthal is to be used as a prop for commercial purposes as an extra without her consent? I don't think so. And that is what this case has said and I think it's a good precedent.
William J. Brennan, Jr.: Well, may I suggest, Mr. --
Richard M. Nixon: Yes, sir.
William J. Brennan, Jr.: -- Nixon. My difficulty is this.
Richard M. Nixon: Yes, sir.
William J. Brennan, Jr.: I do not think that it's the responsibility of this Court. Indeed, I have some serious question on whether -- really we have the power to resolve conflicts among the New York cases to arrive at an independent conclusion of what the New York law is. Now, whatever may be so of Blumenthal or Humiston, we do have the adoption. As I read what the Court of Appeals did in this case of a sentence that in the circumstances even of a newsworthy item, the privilege to use ones name should not be granted even though a true account of the events is given, let alone when the account is senseless, sensationalized and fictionalized. Now, if that's the law of New York, if that's the interpretation of the New York statute, which we have to take in deciding this case, number one, I have serious difficulty whether that interpretation can stand in the face of the First Amendment. And secondly, if it can't, whether under Dombrowski and Button and that line of cases, even though this is an intentionally false statement, as you have argued, Time doesn't have standing but as it does, to strike down the statute under the First Amendment, and that's my difficulty. And whether that's to be resolved by either circuit or whether we ought to send it back to the Court of Appeals of New York and ask the Court of Appeals of New York whether actually, they meant this to be the interpretation of the statute, it's the kind of thing that I'm trying to worry through.
Richard M. Nixon: Yes, sir. And I want to come to that point now because that was the other question that I realized that Mr. Justice -- that you had asked -- asked yesterday. First, as far as the Raiben opinion is concerned, the Raiben opinion with regard to this case states this, “The difficulty with the position of the defendant, Time, is it portrayed the previous Hill incident in a highly sensational manner and represented that the play was a true version of that event.” It was not, it was fictionalized, the jury so found. Consequently, it violated Section 51 of the Civil Rights Law. And so as far as the Raiben opinion is concerned, and as far as the law of this case is concerned, that is what Raiben says. Now, he goes on to a dictum, a dictum which as we have agreed, has been adopted as the opinion of the courts of New York. What does the dictum state? Excuse me, sir.
Abe Fortas: Which you read on page 441 of the record.
Richard M. Nixon: Yes, sir. What I read from is in page 441 of the record, the Raiben opinion begins then and it carries on to page 441 now. Now, let's come to the dictum. The dictum says, in that -- if it can be clearly demonstrated that a newsworthy item is presented, not for the purpose of disseminating news but rather for the sole purpose of increasing circulation, then the rationale for exemption no longer exist. And in such circumstances, the privilege to use ones name should not be granted even though it should counter the event be given, and that is what concerns Mr. Justice Brennan. Let me point this up. First, it is not the law of this case. It has not been applied in any New York case in 63 years. Your question, of course, goes to whether it might be applied in some future case.
William J. Brennan, Jr.: May I say that --
Richard M. Nixon: Yes, sir.
William J. Brennan, Jr.: -- I don't think that's quite it. My question goes to whether when the Court of Appeals said, “The judgment is affirmed for the reasons stated in the majority and concurring opinions of the Court of Appeals whenever it may have been the law laid down in prior cases, has now adopted this law of New York that recovery can be had in the circumstances of the report of a newsworthy account if its purpose is not to report news but merely to increase circulation.”
Richard M. Nixon: Well, Mr. Justice Brennan, for this Court to send back this case in which Mr. Justice Raiben specifically upholds the judgment on the right ground, assuming that we agree it is the right ground or a constitutional ground. On the basis of a dictum, I think it certainly would not be appropriate because the Court has another course of action. The Court can affirm this case on its facts and it can reject the dictum.
Abe Fortas: Mr. Nixon.
Richard M. Nixon: Yes, sir.
Abe Fortas: Isn't the position before us, as Congress, it's as if the New York Court of Appeals had itself written a majority opinion and the concurring opinion --
Richard M. Nixon: Yes, sir.
Abe Fortas: -- to which or -- and so that all the justices -- I suppose maybe that's not right. It says if the entire New York Court of Appeals had written an opinion which contains everything, that is in the majority and in the concurring opinion of the Appellate Division.
Richard M. Nixon: Yes, sir.
Abe Fortas: Now, I would myself have the greatest difficulty in sustaining any holding of the court, the state court and the other courts to the effect or the sense that you have just read.
Richard M. Nixon: Yes, sir.
Abe Fortas: And I gather that that's not foreign to your own act, you [Laughs] --
Richard M. Nixon: Well, I've tried to make it clear.
Abe Fortas: -- what you've said here. But your position is that if we look at the majority and the concurring opinion of the Appellate Division, at least, I think, your position is, if we look at the majority and the concurring opinion of the Appellate Division, that we are entitled and I -- we should come to the conclusion that the holding of the court is not embraced in this single sentence or the two sentences from the Judge Botein's unhappy concurring opinion --
Richard M. Nixon: Same what Raiben case.
Abe Fortas: -- in the course of this --
Richard M. Nixon: Raiben, sir.
Abe Fortas: Judge Raiben's concurring opinion --
Richard M. Nixon: Botein was dissent.
Abe Fortas: -- which have been causing us a lot of trouble, is that your position?
Richard M. Nixon: It is my position, stated better than I have.
Abe Fortas: And that -- and that the -- that the -- an opinion of the court below, and I am assuming that the Court of Appeals has written all these stuff that's in both opinions.
Richard M. Nixon: Yes, sir.
Abe Fortas: We started reversing cases on the basis of dicta and opinions. I suppose we'd be having a merry old time like this.
Richard M. Nixon: Mr. Justice Fortas, what I -- what I say also is that -- as I state here is this 11-year old case. This is a burden, of course, for the defendant, Time. This 11-year old case has been a burden also for this private citizen. And for -- after 11 years, for this case to be reversed not on the facts of this case but to be reversed on a dictum, a dictum which this Court could specifically disavow. It seems to be --
Abe Fortas: Well, the question is awfully important. Perhaps, it's too important to turn on that, for me, in the way.
Richard M. Nixon: Well, I understand. I was only mentioning the fact.
Abe Fortas: I think that most of these actually direct -- directly recall that there are really very few opinions of the New York Court of Appeals. I'd forgotten at the moment. Is Blumenthal the Court of Appeals opinion?
Richard M. Nixon: No, most of their made at the Appellate Division.
Abe Fortas: And Blumenthal is Appellate Division, isn't it?
Richard M. Nixon: Yes, sir.
Abe Fortas: And that's true of almost -- most of the cases here and when you start looking for -- to the New York Court of Appeals, they have not honored us or helped us very often with opinions. What is their latest Court of Appeals opinion, do you remember? In what case? To their right and what is the latest case in which the --
Richard M. Nixon: On privacy?
Abe Fortas: -- New York Court of Appeals actually wrote an opinion on this statute?
Richard M. Nixon: Yes, sir, in Flores versus Mosler Safe.
Abe Fortas: What -- what year was that?
Richard M. Nixon: In 1960 -- it's -- it's a later opinion, 1964 -- 1964 or 1965.
Abe Fortas: I am certain that --
Richard M. Nixon: And which involves incidentally an advertising use and which, of course, is declared.
Abe Fortas: And -- all right, I'm sorry I've taken so much of your time and you still have Justice Harlan's question.
Richard M. Nixon: Yes.
William J. Brennan, Jr.: Well, I --
Richard M. Nixon: Yes.
William J. Brennan, Jr.: I'm sorry too, Mr. Nixon, that -- as you can see, this point bothers me more than anything else --
Richard M. Nixon: Yes, sir.
William J. Brennan, Jr.: -- in this case and it has in the beginning. When the Virginia Court of Appeals in Butts stated without qualification an interpretation of the statute, they're involved, which we said defendant of the First Amendment. We there held that even though a correct interpretation, a limiting interpretation of the statutes on the facts of that case might have justified sustaining the -- I think it was the conviction in the Butts case or whatever that was.
Richard M. Nixon: Yes, sir.
William J. Brennan, Jr.: That could not be so since we knew that the interpretation given the statute, it is in the First Amendment and similarly, in Dombrowski.
Richard M. Nixon: Mr. Justice --
William J. Brennan, Jr.: Now, here my problem is, we've had other instances where we've been unsure of what the interpretation of the state statute was as expressed in an opinion of the Highest Court of the State of Minnesota (Inaudible) a whole after cases, everyone in doubt. And in some of them, what we have done is to send it back in the Court of Appeals, the highest state court and clear it up for us. We did on the -- in your case of your own State a couple of years ago. I forgot the name of that now.
Richard M. Nixon: My State of California?
William J. Brennan, Jr.: Your State of then --
Richard M. Nixon: Thank you, sir.
William J. Brennan, Jr.: -- California[Laughter]
Richard M. Nixon: I'm proud to be in California.
William J. Brennan, Jr.: We did at that time. We sent -- sent it back and asked the California Supreme Court to tell us what they meant. We did it with the State of Washington only a few years ago.
Richard M. Nixon: Mr. Justice --
William J. Brennan, Jr.: Now, I don't understand why this situation doesn't call for the same. If this is mere dictum, then let the Court of Appeals of --
Richard M. Nixon: Can I answer that?
William J. Brennan, Jr.: Oh, yes, please.
Richard M. Nixon: Mr. -- Mr. Justice Brennan, Button and Dombrowski were both new statutes in which declaratory judgment relief was requested and at least in one case. In neither Button nor Dombrowski, did you have a 63-year history of legislative interpretation completely contrary to the dictum. Therefore, a chilling effect, I think, could be seen then. I think that distinguishes this case. Thank you.
Earl Warren: You may answer -- you may answer Justice Harlan's question if you wish to -- now, Mr. --
Richard M. Nixon: I -- I don't want to take Mr. Medina's time.
Earl Warren: That's -- that's all right. You may -- you may take a few moment to --
Richard M. Nixon: Could you state the question again, sir?
John M. Harlan II: I would like to know what were the (Inaudible)
Richard M. Nixon: Mr. Justice Harlan, the judge's charge, it seems to me, has to be read in connection with the record in the case, the record of testimony. It is based on the record of testimony. And in that connection, the judge's charge and -- and I turn briefly to it.
Earl Warren: (Inaudible)
Richard M. Nixon: Sorry.
Earl Warren: (Inaudible)
Richard M. Nixon: Yes, sir. Yes, sir. The heart of the charge, it is for you to determine whether in publishing the article, the defendant, Time, altered or changed the true facts concerning plaintiff's relationship to The Desperate Hours so that the article as published constituted fiction. An incidental mistake in the statement of a fact, the facts does not render the defendant liable. Before the plaintiffs can be entitled to a verdict against the defendant, you must find that the statements concerning the plaintiffs in the article constituted fiction. Now, looking at the record of the case, the case had been argued on the basis of intentional fictionalization. And in that connection, let me quote from the appellees' closing argument to the jury. In this case, the defendant, Time, Incorporated is charged with something of enormous gravity. We charged Time with having published a false article, falsely dragging the plaintiffs into the news, falsely linking them with the violent melodramatic work of fiction for commercial purposes. We charge this most powerful of all news publications in the world with having done this deliberately with knowledge of falsity and we charge them with having brought about the permanent disability of a human being by reason of their action. Now, the judge's charge alter or change the facts substantially in order to create a more interesting story for commercial purposes was what -- was the heart of this case and was what the jury found. Sorry, sorry.
Earl Warren: Mr. Medina.
Harold R. Medina, Jr.: Mr. Chief Justice, may it please the Court. When I started to argue intent in my summation, Mr. Garment got up and said, “Your Honor, with a great difference, I rise at this point to object to these statements.” So that intent, even when I started to argue it in summation, was objected to by the other side. A couple of --
Earl Warren: What -- what did the judge conclude?
Harold R. Medina, Jr.: The judge said, “Now, I'll take care of it, my charge.” And then of course the charges have came out as I've already discussed, said, “Were the statements in the article are matter of fiction.” Nothing to do with intent again.
Earl Warren: But you did argue intent.
Harold R. Medina, Jr.: I started to argue intent to the jury --
Earl Warren: And you quit.
Harold R. Medina, Jr.: -- and was -- and I kept on argument but I was cut -- but --
Earl Warren: (Voice Overlap) that's what I mean.
Harold R. Medina, Jr.: After starting the argument, objection by the other side and the judge said, “You are very right. I'll take care of it, my charge.” The obvious inference from that is that intent is out of the case. And indeed, that's what -- what happened as I -- as I detailed in my main argument yesterday.
John M. Harlan II: Did you ask for a settlement?
Harold R. Medina, Jr.: I had a specific request of charge on intent.
John M. Harlan II: (Inaudible)
Harold R. Medina, Jr.: On intent. That's charge number 6, that I -- that I read to the Court yesterday. And I objected to the failure to make that charge except as specifically. First, on the Court of Appeals, the Blumenthal case was an affirmance without opinion in the Court of Appeals and the Redmond and Franklin and Gautier cases were all in the Court of Appeals for this -- we have more affirmative Court of Appeals than perhaps Mr. Nixon indicated.
William J. Brennan, Jr.: Well, Mr. Medina, I'll have to put the same question I put Mr. Nixon. Do you -- why should we try to resolve what the New York statute means? In face of this affirmance, why don't we sent it back to the Court of Appeals of New York now?
Harold R. Medina, Jr.: That's -- that's my next point -- that's my next point, Your Honor. At the time that Mr. Justice Raiben's opinion was written, and at the time when it was specifically affirmed in the Court of Appeals on the basis of that opinion, we were saying that the article was true. Until we reached this Court, our position throughout has been that this was a true article in the broad sweep of it. So that this was specifically an answer to our contention that the article was true. And when the Court of Appeals affirmed on both opinions, what they in effect were doing was precisely the same thing they did in the Gautier case in 1952 of referring back to Blumenthal and saying, “This true item, we're not going to allow.” But it was an answer to our contention that it was true, so this was no dictum. Moreover, the dissent in the Appellate Division by Mr. Justice Botein, dealt specifically with this point of Mr. Justice Raiben's. And the dissent in the Court of Appeals by Mr. Justice Fuld joined in by Mr. Justice Bergan, again dealt specifically with that point, so that I say this was no dictum, this was a direct holding in answer to our contention that the article was true.
William J. Brennan, Jr.: Well, then you put -- if you're saying to us what we ought to do with the side that wasn't taken. And Mr. Nixon says, “You ought to decide that it was dictum and I still suggest that between the two of you, why don't we ask the Court of Appeals to tell us whether it was dictum or not?
Harold R. Medina, Jr.: Well, when in -- when in its -- in -- it is in answer to our specific contention that the article is true, it seems to me is no longer dictum.
Byron R. White: And though -- we though -- what if we said that it was and or that we ought to find out. Even if the Court of Appeals told us, you still have the instructions probably on the problem, right?
Harold R. Medina, Jr.: That's right.
Byron R. White: I mean, it doesn't -- it doesn't -- doesn't still handle all the problems in the case to remand it (Voice Overlap) --
Harold R. Medina, Jr.: I still think that I'm entitled to win whether you -- whether you have that as dictum or not. That's just one point and one ground.
Byron R. White: But even if -- even --
Harold R. Medina, Jr.: I still have my basic intent point in this whole case.
Earl Warren: I understood you to say that you -- until you came to this Court, you argued that it was true.
Harold R. Medina, Jr.: Yes, sir.
Earl Warren: You don't argue that now.
Harold R. Medina, Jr.: I'm saying that we have an error in the -- in the use of the word “reenacted”. Now, I still say that the article can be interpreted as basically true in that it's a story of a family terrified by convicts.
Earl Warren: Were those -- were those --
Harold R. Medina, Jr.: That's the sting of it.
Earl Warren: Were those horrendous things that were -- were detailed in the article in the -- and in the pictures --
Harold R. Medina, Jr.: Of course not, Your Honor.
Earl Warren: -- were they true?
Harold R. Medina, Jr.: Of course not, Your Honor. It -- it is the question of --
Earl Warren: Well, then how can -- how can the article be true?
Harold R. Medina, Jr.: Well, it's a question of which test of truth you use is -- is the difference between the British and American viewpoint that I gave you yesterday as to whether you're saying basically the net effect of this is a family terrified or not. I do have to say that we have error in the word “reenacted” and that's why I'm in this Court on the error and saying it's unintentional error. But I -- I come back again on a question of standing that we, throughout the lower courts, said this article was basically true. And if this true crime in this by this tenth play, I'm an Eskimo, it certainly did. And -- and that's the basic point. Now, lastly, I just want to thank you for the courtesy of allowing us this reargument because I think this case is -- is of great importance in an endeavor to do in privacy what you did in libel. We've gone through this case in 11 years. I've been talking about the Constitution throughout the New York courts. And until we got to this Court, no one realized the Constitution of the United States had anything to do with this case. And I say it's time that this Court made it quite clear to the state courts that the Constitution does have something to do with this. And that when you have non-defamatory language about a public fact that you shouldn't be held accountable unless you have falsity and knowledge of falsity or recklessness. And I state --
Earl Warren: What do you have to say about Mr. Nixon's statement that the falsity of -- of these statements was evident to you was in your files?
Harold R. Medina, Jr.: There was no such evidence in the files at all, Your Honor.
Earl Warren: Well, now, somebody's --
Harold R. Medina, Jr.: Well, that --
Earl Warren: -- somebody is just not stating a fact.
Harold R. Medina, Jr.: That's right and of course that's the point of our reply brief. If you want to go through the record page by page, as Mr. Justice Black did and said any reasonable person would think that the -- that the play was inspired by this incident, if you go through the record on that, the papers in the file upon which this article was based show no such thing.
Abe Fortas: Is the reenactment and being inspired by, are those exactly the same?
Harold R. Medina, Jr.: No, sir. They are not, of course.
Abe Fortas: Now, this -- this -- substantially the same either under American or British law?
Harold R. Medina, Jr.: The word “reenactment” has an ambiguous frame of reference in the article (Voice Overlap) --
Abe Fortas: It must be ambiguous for you.
Harold R. Medina, Jr.: I have to accept the ambiguity being decided against me in this Court.
Abe Fortas: Well, that's not --
Harold R. Medina, Jr.: I did not in New York courts, Your Honor.
Abe Fortas: Yes. And there were findings below.
Harold R. Medina, Jr.: I think you'll find it in the Appellate Division that the word “reenactment” was inaccurately used.
Abe Fortas: Why is that inaccurate?
Harold R. Medina, Jr.: Inaccurately used is what precludes me when I get to this Court I have to accept that as a statement of fact.
Abe Fortas: Now -- now, I -- I want to ask you about something you said a minute ago. Assuming that the publication is false, assuming that it is knowingly false. This particular publication is -- I -- I don't understand your constitutional position. Is it your -- assuming that the article is false that it was known to be false, and now, can we sustain the application of the New York statute to this situation in view the First Amendment, what is your position?
Harold R. Medina, Jr.: There is no knowingly false, that was my last point, the last argument --
Abe Fortas: I'm asking you to assume that. Will you please assume that?
Harold R. Medina, Jr.: If you assume that there is falsity and that we knew there was falsity, of course, we should be held and that's been my point from the start.
Abe Fortas: And the First -- and --
Harold R. Medina, Jr.: There's no constitutional protection for that.
Abe Fortas: All right. That's what I wanted to find out.
Harold R. Medina, Jr.: That's right.
Abe Fortas: Now, --
Harold R. Medina, Jr.: Thank you very much.
Hugo L. Black: -- assuming that, what's come -- with the reference to the question of malice? Is -- is it your belief that they could get damages here without proof of maliciousness as well as falsity?
Harold R. Medina, Jr.: The test under New York statute has nothing to do with knowledge of falsity. It is a malice test in terms of presuming intent to increase circulation.
Hugo L. Black: You don't have a constitutional question in the New York Times case in which it was held that there couldn't be any filing down of the protections of the First Amendment unless there was proof of actual malice. Do you think that that was written for that case alone or should it fit all cases under the First Amendment?
Harold R. Medina, Jr.: I think it should fit all cases under First Amendment and specifically non-defamatory language we have used about a public fact.
Hugo L. Black: What -- what was the charge of that malice in this case?
Harold R. Medina, Jr.: There is no charge on intent or malice whatsoever except with the punitive damages whether we do not knowingly or -- or negligently. But so far as liability or not, the -- the charge had nothing to do with intent or malices.
Byron R. White: But, Mr. Medina, really, you -- when you say that certainly you should be liable if it is assumed that this story was false and that you knew it, you don't mean to say that if we could glean from this record that -- or that we thought from an examination of the record that it was false and that you knew it, that wouldn't -- that wouldn't end up in liability if you knew about it.
Harold R. Medina, Jr.: The -- the Appellate Division decision found specifically that we did not know it.
Byron R. White: Because you'd still have to because the case, if -- if you also thought that the -- that the jury was not instructed this way, why the case wasn't tried on that theory.
Harold R. Medina, Jr.: It was not tried in intentional intent whatsoever.
William J. Brennan, Jr.: Well, that's just -- that's -- you reiterated now a couple of times, that's your principal point.
Harold R. Medina, Jr.: That's right.
William J. Brennan, Jr.: That whatever may -- constitutionally, you agree that liability could be visited for intentional knowing falsity.
Harold R. Medina, Jr.: No question about that.
William J. Brennan, Jr.: But you say the case was not submitted to the jury under instructions which would have limited liability --
Harold R. Medina, Jr.: That's right.
William J. Brennan, Jr.: -- for the intention -- intentionally knowing false.
Harold R. Medina, Jr.: And indeed, the whole record shows, there was no intent.
Earl Warren: Mr. Medina, if we -- if we should agree with the statement -- the statements of -- of Mr. Nixon as to the knowledge of the -- of your people as shown in the record and disagree with you on that question, should you win or lose?
Harold R. Medina, Jr.: You're precluded by the finding of fact of the Appellate Division when it said --
Earl Warren: No, I said this -- I didn't say whether we were precluded, I said if we found -- if we found that, our -- in the -- the record discloses that, should you win or lose?
Harold R. Medina, Jr.: It still was not a question that was -- was ever put to the jury. It hasn't been passed upon by the jury.
Earl Warren: Well, you're answer is then that you still should --
Harold R. Medina, Jr.: I still should win.
Earl Warren: -- you still should win.
Harold R. Medina, Jr.: Yes, sir.