Warren E. Burger: We will hear arguments next in Paul against Davis, 74-891. Mr. Porter you may proceed whenever you are ready.
Carson P. Porter: Mr. Chief Justice and may it please the Court. I am here today on behalf of the petitioners, the Chief Police of Louisville, Kentucky and Jefferson County, Kentucky. This case arises out of a factual situation which began when the respondent was arrested for shoplifting at Louisville Retail Store back in the summer of 1971. Subsequently, in September of 1971, this individual had his case by his motion filed away with leave which under Kentucky Law constitutes a general continuance of the charges of shoplifting. Subsequently in December of 1972, the petitioners sent a flyer to a number of merchants in our community indicating that the person’s named in that flyer had been arrested for shoplifting in the past two years and were “active shoplifters.”
Warren E. Burger: Well, there is quite a difference between the two, is there not?
Carson P. Porter: I do not think there is any question about that Mr. Chief Justice and that is the real heart of the case. Subsequently, the respondent after finding out about the circulation of this flyer had the status of his case changed on his motion from filed away from the general continuance status, the criminal charge was changed to dismissed. He then brought an action or attempted to do so in the United States District Court for the Western District of Kentucky under 42 U.S.C. Section 1983. And right there, I think is the knot of this case. The question being in short, did the respondent bring his action in the right Court? We submitted to the District Court that the respondent had failed to state a claim under Section 1983. For, in fact, the allegations which he set forth by the factual circumstances, I just recited the statement of active shoplifters. No question, that is different from his status as an arrested person. But that constitutes in our estimation and in the estimation of the District Court of Kentucky, at best an allegation of defamation which is cognizable in the Circuit Courts of the Commonwealth of Kentucky and not under 1983. They contended in their compliant that the right privilege or immunity which had been denied to the respondent was one of two things, either (a) a deprivation of his constitutional right of privacy or (b) a denial of due process. I would like to focus the Court’s attention if you will firstly, on their allegation that this gentleman has been denied, he is alleged constitutional right of privacy. We basically submit it to the District Court and the District Court held in his failure to state the claim decision that the facts of this case did not give rise to a constitutional, protected right of privacy. And I think the teachings of the Sixth Circuit since this Court -- nobody in this case has been able to cite a decision rendered by this Court dispositive with this issue or where this Court has recognized a constitutional right of privacy in the defamation area. We have of course learned about Griswold for married folks in contraceptives and Eisenstock for unmarried people and the abortion case in Roe versus Wade but not what we consider to be primarily, if not totally, a defamation case. But the Ninth Circuit had a similar case. Back in 1963, they decided in a split decision York versus Torrie(ph). Now, in that case the majority held that the factual circumstances there did in fact arise to a constitutional invasion and I would submit to the Court that that decision was correct and I would embrace it because the facts in that case are entirely different from the facts in the case at Bar. For example, in York, a young lady had gone to the Local Police Department to complain about being raped. When she got there, a police officer acting as a Police Officer took her into a room, asked her to strip nude, posed her and as the Court said, lured in lascivious poses and took photographs over and then circulate the photographs to all of his friends on the police department. Now, I would suggest that that as the Court held shocked the conscience of that Court, shocks my conscience and I think it would shock the conscience of this Court.
Potter Stewart: It is so but you do not need to concede the correctness of that decision. It may have shocked all of our consciences but it may not have been violation of any constitutional rights. In other words, we do not have that case before us.
Carson P. Porter: You are exactly right Your Honor. I was drawing that case to show what they did in the same Circuit six years later in a case very similar to the one at Bar. Baker versus Howard, in that case, the Ninth Circuit held unanimously that the fact situation did not arise to a constitutional deprivation. Therein in fact there was proof that Baker had had a statement alleging that he had committed a crime, broadcast to the general public pursuant to the direction of the police department over the radio stations and had in fact lost his job because of this. I would submit that to be a potential denial of the property right. The Ninth Circuit in that case held did not constitute or deprivation that this was not the kind of case that was cognizable under Section 1983. Now, in the transcript before you in this case at the evidentiary hearing held on the motion for preliminary injunction which the District Court denied. Respondent called two witnesses. They called the employer of the respondent for the purpose of attempting to show to the Court the loss which respondent had suffered because of this dissemination. But the best testimony that was advanced there was that the employer knew about it, had thought about restricting his employee’s activities as a photographer for the local newspaper but in fact when asked by the judge, “What had you done?” He said, “Nothing Your Honor. I have taken no action against this gentleman whatsoever.” Some interesting distinctions between our fact situation and Baker versus Howard. I respectfully submit to the Court that if the teaching of Baker versus Howard is correct where the gentleman lost his job because of the dissemination, and where in this case, there has been no proof, advanced whatsoever at any type of grievous injury then I respectfully submit that this case does not even rise on the hierarchical ladder to Baker versus Howard much less approach, the grievous loss in York versus Torrie.
William H. Rehnquist: Well supposing that there had been an inadequate showing in your view of significant loss. As I read your brief, your contention is that nonetheless if the loss itself is not imposed by the sovereign power of the government then it is not cognizable under 1983?
Carson P. Porter: Yes, Your Honor, what we are saying is while we are admitting for the purposes of argument, these actions were taken under color of law which put us under the first aspect of 1983. We are submitting that we do not and we have not deprived the respondent of any right, privilege, or immunity guaranteed by the constitution or the Federal Laws. Therefore, since he cannot make up a case, he failed to state the claim advancing both propositions which are required. We contend that what he has basically is a defamation case and that he should be suing us if he wishes to do so in the Circuit Courts of the Commonwealth of Kentucky. That is the heart of this lawsuit.
Potter Stewart: Can I ask his diversity or citizenship I suppose you could see on the Federal Court
Carson P. Porter: No question about that Your Honor.
Potter Stewart: Were about a 115 of these people pictured as active shoplifters?
Carson P. Porter: There were 121 persons.
Potter Stewart: I am just looking in what was reproduced here in the appendix about half or more are women, along with this annex “A” that appears in the appendix at page 8 was that distributed to the businessman too?
Carson P. Porter: That is the cover letter I believe Your Honor, Yes Sir.
Potter Stewart: And how about the material on page 9. Was that distributed also to the Louisville Businessman?
Carson P. Porter: Yes Sir at page 9 is a continuation of annex “A”.
Speaker: I see.
Carson P. Porter: That constituted the cover letter.
Potter Stewart: I see.
Carson P. Porter: And as you will note in the cover letter, they made this statement these persons have been arrested during 1971 and 1972 which is a factual statement.
Potter Stewart: Or have been active?
Carson P. Porter: Or have been active in various criminal fields in high density shopping areas.
Potter Stewart: Right.
Carson P. Porter: The thrust of our position being the basically at best those statements and the active shoplifter label constitute nothing more than a defamation claim.
Potter Stewart: And the testimony was that this had been done repeatedly at the Christmas season?
Carson P. Porter: Yes, Your Honor. This was the 15th consecutive year.
Potter Stewart: And --
Carson P. Porter: It has been there since.
Potter Stewart: And that the businessman when they did not get their copy of this would call the police headquarters say, “Are you not going to do it again this year?” Something like that?
Carson P. Porter: Yes, Your Honor. The businessman enjoyed receiving this information. I do not think there is any question about that and part of the thrust of our argument Your Honor is that the dissemination itself constituted a legitimate law enforcement dissemination that these persons are charged under Kentucky statute, the store detective, the owner of the store, and any merchants employee has the right if not the obligation to apprehend persons, they have reasonable grounds to believe are shoplifting on the premises of their store. Because of that statutory cloak of authority, we contend that the dissemination from the police Department to these merchants was a protected dissemination within law enforcement or quasi law enforcement groups. It served a proper law enforcement function. The only point which the respondent might raise which would be a legitimate concern with regard to this dissemination is that attachment of the words “active shoplifter” which I contend is a gratuitous, editorial comment made by the petitioners in addition to the circulation and the dissemination but at best the labeling there constitutes nothing more than a defamation claim.
William H. Rehnquist: That is a question of privilege that you would not be able to raise a motion to dismiss, is it not? If your only ground were to say that even though the states are claimed under 1983, we nonetheless were privileged because we were engaged in legitimate law enforcement activity. You would not be able to get the complaint dismissed where you are asserting a qualified privilege that may depend on subjective good faith?
Carson P. Porter: No Your Honor, we are not asserting. We did not assert in this case, the qualified privilege as an affirmative defense. I would concur with your analysis there. What I am saying Your Honor is that the factual allegations did not set forth a claim cognizable under 1983 because no privilege right or immunity enjoyed by the respondent viz-a-vis, the constitution of the Federal Laws has been deprived.
William H. Rehnquist: But that is quite independent --
Carson P. Porter: Yes.
William H. Rehnquist: -- from your position that it is legitimate law enforcement activity that your clients were engaged?
Carson P. Porter: Yes Sir.
Potter Stewart: Even through a defamation action that will be an effective defense?
Carson P. Porter: Of course, I concur.
Byron R. White: On what ground does this Court below proceed, was it on due process grounds?
Carson P. Porter: Yes Your Honor.
Byron R. White: A lot of it was procedural Due Process was it not?
Carson P. Porter: Your Honor, the Sixth Circuit reversed and the thrust of their opinion was on the Due Process grounds.
Lewis F. Powell, Jr.: You have not addressed that yet.
Carson P. Porter: I would be delighted to do so at this point Your Honor.
Byron R. White: Well, I mean, before you can say it was 1983 Act, you have to say that there was not a properly alleged that a deprivation of procedural Due Process.
Carson P. Porter: I concur with that Your Honor and I was attacking.
Byron R. White: And that was then that the Court below -- Did the Court below suggest that even with proper procedures, the officials could have not done this?
Carson P. Porter: The Court below rested its opinion largely on the Wisconsin versus Constantineau situation wherein they were making the thrust of their position that because of the labeling which took place in the case at Bar is similar to the posting and labeling in the Constantineau circumstances that as they interpreted the Constantineau decision whenever that is undertaken, due process must be entered into prior to posting and labeling. Now we would submit for the Court’s attention that three are serious distinctions.
William J. Brennan, Jr.: (Inaudible).
Carson P. Porter: Yes, Your Honor.
William J. Brennan, Jr.: Actually after going all through label carries with it as it describes. All of this was done without the slightest regard for due process. There was no notice or opportunity to be heard prior to the distribution of the flyer and the appellate and others have never been afforded the opportunity to refute the charges in the criminal proceeding. Now, do I correctly read that and saying that in what was done here, there was a denial of federal procedural due process?
Carson P. Porter: I think that is their point. Yes, Your Honor.
William J. Brennan, Jr.: Now if that is so, does that not allege a violation of 1983?
Carson P. Porter: I think if that so, there is no question that it does allege a violation of --
William J. Brennan, Jr.: And your answer?
Carson P. Porter: And my answer is that with all due respect for the Sixth Circuit Court of Appeals, respectfully dissent from their opinion. And that we would draw the following distinctions between the Constantineau application and its application to the case at Bar. In the first place --
Byron R. White: Well, it does not mean to say that Constitution of 1983 this means that if you dismiss it will fail you.
Carson P. Porter: Your Honor, I would dismiss it for failure to stay to claim and not be cognizable under 1983 because I do not think this is a Constantineau case.
William H. Rehnquist: You do not agree with the Sixth Circuit --
Carson P. Porter: That is exactly right.
William H. Rehnquist: -- that can govern this case?
Carson P. Porter: That is exactly our position. for the following reasons. In the first place, Wisconsin versus Constantineau struck down a facially unconstitutional statute passed by the Wisconsin legislature which said as follows that a wife or various members sheriff, Board of Mayor and so forth, a particular community could by swearing out an affidavit, supplying the picture of their appropriate person have that person without any other further notice or hearing or whatever, the sheriff was mandated to take that to every bar and every liquor store in that community, post it there for the general public to see, saying that the person whose picture is on this poster cannot be served alcoholic beverages for a period of one year. In the case of Bar, we have statutory mandates. We have two Chiefs of Police taking on their own making a gratuitous, editorial comment not pursuant to any kind of direction or authority.
Thurgood Marshall: I thought you admitted that this was state action on it?
Carson P. Porter: I did admit Your honor that it was state action --
Thurgood Marshall: (Inaudible)on their own, they took it on part of the state.
Carson P. Porter: But I am just trying to draw the distinction Your Honor that but for the fact that these two gentlemen were Chief of Police. I do not think there will be any question but this is nothing but a defamation case and that there is a factual distinction in that first point between the statutory problem in Wisconsin versus Constantineau and the actions taken here. Secondly, though --
William J. Brennan, Jr.: For that reason in Constantineau that what was done was done on the authority of the statute of legislature. Here you have a couple of police officials that will just do this out of thin air with no --
Carson P. Porter: I would say that.
William J. Brennan, Jr.: That is worse in the situation.
Carson P. Porter: Well I would say that Constantineau situation is worse Your Honor because the officials in the Constantineau case have no choice. When that affidavit was signed they had to act pursuant to that statute.
Warren E. Burger: They have to follow Wisconsin statute?
Carson P. Porter: Yes Sir.
Warren E. Burger: Do you say that the Chiefs of Police here were not purporting to follow any statute?
Carson P. Porter: No, Your Honor.
William H. Rehnquist: But did the State of Kentucky attach any disabilities to these people, the way that said it was consented to the person was posted simply as a result of the circulation of this flyers?
Carson P. Porter: I think there is two important points about the posting. The first office at the Wisconsin posting was to the general public at large. The dissemination here was to these group of merchants. Secondly,--
William J. Brennan, Jr.: All that happened was when it was posted they could not sell the lady any drinks was it not?
Carson P. Porter: Yes, Your Honor, she was deprived the opportunity to purchase liquor for a year.
William J. Brennan, Jr.: At least that was to go through the rest of their lives accusations apparently untrue that they were active shoplifters.
Warren E. Burger: Would you finish answering my question, we got a chance?
Carson P. Porter: Yes, Your Honor, I was. In focusing on the attachment of the Label Act which I believe was your question Mr. Justice Rehnquist with regard to this situation as distinguished from the Constantineau situation, we contend for this Court that the respondent in this particular case did not receive from this type of publication the attachment that was passed on in Wisconsin versus Constantineau, for one reason because of its unlimited circulation. Secondly, and I think in analyzing these 1983 cases and making a determination as to whether there has been a claim asserted and when the Court takes evidentiary proof on that matter as they did in this instance, respondent advanced, his evidentiary proof as distinguished from Constantineau, there is not one instant in the transcript of any time when the person has been denied employment was he has ever been stopped in the store or has he ever been asked about this?
Warren E. Burger: Now, you are going contrary. Does that not go to the injury?
Carson P. Porter: It goes in my estimation Your Honor and I respectfully submit it goes both to the injury and the potential damages to this individual and whether or not he has been deprived a constitutional right. That is the reading of the Right of Privacy cases from the Ninth Circuit to Fifth and the Third Circuit in Rosenberg versus Martin.
Potter Stewart: More accurately do you not mean whether or not he has been deprived of liberty or property?
Carson P. Porter: I think that is right Your Honor as to whether he is entitled to due process. We refer to the Fourteenth Amendment.
Carson P. Porter: If we did in the due process area, I think that the question --
Potter Stewart: That is where we are, is it not? That was the theory of this complaint was it not.
Carson P. Porter: That was one-half of the theory. Yes, Your Honor.
Potter Stewart: And that was the basis upon which the Court of Appeals in the Sixth Circuit decided the case?
Carson P. Porter: Yes, Your Honor.
Potter Stewart: So the question is even though if he had been deprived of liberty or property, what happened here might have been a violation of due process or the procedural due process rights. The first inquiry is whether he has been deprived of liberty and property because unless he has been, then he has not been deprived of what is guaranteed to him by the Fourteenth Amendment.
Carson P. Porter: That is the teaching of the Roth cases I understand it Your Honor that unless he can allege and assert a deprivation of liberty or property then --
Potter Stewart: By the state of liberty or property?
Carson P. Porter: That is right Your Honor. Alright now. Yes Sir.
Lewis F. Powell, Jr.: On that point, I have given you much of a chance to argue your case but maybe I can help you. In Constantineau, the party was deprived of a very fundamental right of liberty. He was not allowed to buy Whiskey for a year.
Carson P. Porter: Yes, Your Honor. I would consider that to be fundamental.
Lewis F. Powell, Jr.: [Laughter]Right.
Carson P. Porter: And grievous.
Lewis F. Powell, Jr.: Alright. Now in this case, there was no deprivation of anything as shown by the record.
Carson P. Porter: That is right Your Honor. That is our contention.
Lewis F. Powell, Jr.: But does not evidence totally back that up?
Carson P. Porter: I certainly do Your Honor.
Lewis F. Powell, Jr.: Because your contention, is there any evidence to the contrary?
Carson P. Porter: No Sir, Your Honor. Our position with regard to the due process question is basically is that man entitled to a full blown due process hearing prior to the time when a public official, in this case two Chiefs of Police, make what amounts to a defamatory statement about the gentleman or is due process served by an after the fact proceeding which we contend in a defamation case is cognizable in the state courts. This Court recently in Arnett versus Kennedy in reviewing the language of the Roth case where there was an obvious deprivation of a property interest and that was a civil service employee who had lost his job. He pointed out that after the fact to due process remedy was appropriate. That in that procedure and I argue this case only by analogy not just as dispositive of our case, but in that proceeding, due process not as the respondent would urge in the District Court and in the Sixth Circuit and in their briefs. But that due process can be provided adequately to this gentleman after the fact, not prior to the time that this type of defamation that we can categorize it as that is made by these individuals. I think it is important --
Thurgood Marshall: This is after 15 years, right?
Carson P. Porter: No, Your Honor the 15 years refers to the 15 consecutive years when they had sent a circular. The evidence is that this is the first time this gentleman had been on the circular. But there is no class action before us in this case Your Honor so, my suggestion to the Court is very simply that this case should be decided on the basis of the factual allegations set forth in the complaint and the proof presented at the evidentiary hearing in this transcript. That it should not be given a broad interpretation. It should not open the doors to the Federal Court Houses throughout this country by attaching the Constantineau broad interpretation so that every potentially defamatory statement uttered by a public official would be re-addressable under 1983. We submit to the Court that the appropriate remedy is under the common law defamation remedy. Basically, in reviewing the context of this case, I think it is appropriate to assert to the Court that the right of privacy having not been recognized by this Court not elevating to in our estimation under these factual circumstances to a constitutional level and in our estimation inappropriate application of Constantineau to the facts at Bar wherein the liberty and property, procedures and application of due process have not been attached to this gentleman that under these circumstances, we respectfully submit that the decision of the Sixth Circuit below should be reversed.
Speaker: May I just ask one?
Carson P. Porter: Yes, Your Honor.
William J. Brennan, Jr.: Under the Kentucky Law in a defamation state defamation suit against these police officers, would they have defensive privilege?
Carson P. Porter: They may have a defense of qualified privilege Your Honor, that point of course has not been brief or address in anywhere in this lawsuit to date. But that defense would probably be raised. I think that the case law in the Commonwealth of Kentucky in that area is not what I could say to the Court is absolutely clear and if we would raise that defense --
Byron R. White: I think in Kentucky at least historically has been a defamation to accuse some persons falsely being a criminal.
Carson P. Porter: No question about that Your Honor and the traditional truth is defense –-
Byron R. White: And the reason is that it injures his reputation, presumably.
Carson P. Porter: No question about that. The issue in this case though is whether that injury to his reputation arises to a constitutional deprivation.
Byron R. White: But that is a deprivation of liberty or property?
Carson P. Porter: Yes, Your Honor and we contend and respectfully submit that it is not and that the decision of this Court should take the opportunity to carve out this set of factual circumstances from the broad scope of the Constantineau in Roth language and leave the appropriate remedy in the state courts for persons, define themselves in the circumstances. Thank you.
Warren E. Burger: Mr. Taylor.
Daniel T. Taylor, III: Mr. Chief Justice and may it please the Court. We would begin to set the record I believe a little bit more correctly before the Court because some of the Justices indicated that it was perhaps or at least the inquiry run is to well had there been any damage to Davis per se.
Warren E. Burger: Well, not that there had been damage. Has there been a deprivation of liberty or property?
Daniel T. Taylor, III: May I please refer this Court, and it is in the appendix to the response that the employer of Davis gave its very last page of the appendix and if I may it is very brief. Just read directly the question, “As a result of the flyer, did you feel that you might have to possibly limit the places that he would possibly and the future go in as a member?” By that they mean of course the news staff.
Warren E. Burger: Are you on page 30?
Daniel T. Taylor, III: I am at page 35 Mr. Chief Justice.
Warren E. Burger: 35.
Daniel T. Taylor, III: In the appendix, the numeration, right at the very end. Mr. Justice Stewart it is 35. Thank you. The answer very definitely I would question, and why did you feel that way and I read directly now from the proof adduced before the trial court at the seeking of the preliminary injunction which was denied and he goes on to say, “Our photographers must be accepted as reasonably honorable and truthful man whenever they go, wherever they go. I felt that in view of this flyer circulation to merchants of the community. I could not, for example, assign Mr. Davis to photographing anything in a mercantile establishment and so that should such an assignment come up, I would have been forced to have someone else cover that assignment rather than Mr. Davis.” Now if I might --
Lewis F. Powell, Jr.: Will you read on Mr. Taylor?
Daniel T. Taylor, III: Yes, of course. Question, that is all and the Court said, “By the Court did you restrict him?” The question was from the bench. The witness says, “No, I did not.” By the Court, you have not restricted him at all. The witness, “I have not restricted him at all.”
Lewis F. Powell, Jr.: So there are no restrictions?
Daniel T. Taylor, III: If you please Mr. Justice, the situation had not come up. Here is the young man’s employer saying that he cannot send this youngster, he is a college student, young black photographer, what he was, into a mercantile establishment because he does not have the proper bona fide he stood at this spot on his sketching.
Lewis F. Powell, Jr.: How long after the flyer was circulated, was this evidence taken?
Daniel T. Taylor, III: This was taken in January. The flyer was circulated in December. There was --
Lewis F. Powell, Jr.: And there had been no restriction in the end, anytime?
Daniel T. Taylor, III: There had been possibly. I appreciate that question. It is hard to say, it had not come up but indeed it had come up and if I might please suggest most respectfully that the very question that Your Honor has asked points out that the wide dissemination of this flyer, as Mr. Justice Marshall asked in his question, how many of them were there? Let me say to this Court, there were 800 of them. Let me say to this Court, they not only went in Louisville, they went across the river into what we call Atria Cities in the Indiana. Let me say that the qualification for getting hold of one of this and it is in the record from the Chief of Police was to go to the police department and knock on the door and get your yearly flyer and so forth. This was another thing. This flyer itself on that cover sheet annex “A” says a great deal more than my learned colleague. It says and I am quoting directly. We have approved and attached alphabetically. This is of course in our appendix arrange flyer of subjects known to be active in this criminal field. The papers themselves, the pictures at the top do not say anything about this man has been arrested. They say active shoplifters. It is a fait accompli. There is no future determination. There is no notice. There is no confrontation. The trap has prompt and with it the imputation that that man, not the imputation that the man is a criminal, but the conclusion, the statement official state action to the police department. My opponent says arguendo, it was state action possibly arguendo, de facto and realistically and actually in any way you want to, pardon me, slice it. It was state action and our police department not knowing they are wrong take credit at the bottom of this paragraph for the offense against this young man. These flyers preparation is accredited to officers, small thing to take credit for. I would suggest this Court would perhaps want to hear more about the constitutional aspect of this case and prepare to proceed further in that regard.
Lewis F. Powell, Jr.: Mr. Taylor, as you get into the constitutional issue which as you said it does interest me. I note that as near as I can tell in your brief, you do not use the word liable at all.
Daniel T. Taylor, III: Hardly. No, Mr. Justice.
Lewis F. Powell, Jr.: You do not mention it?
Daniel T. Taylor, III: Mr. Justice Powell.
Lewis F. Powell, Jr.: May I finish my question?
Daniel T. Taylor, III: Yes Sir.
Lewis F. Powell, Jr.: You use different terminology quite different for the ACLU, punishment without a prior due process hearing. Is it your basic position that whenever an employee of a state or city utters any words that may possibly be defamatory that under a new doctrine of prior restraint there must be a due process hearing? What is your position?
Daniel T. Taylor, III: I understand the question.
Lewis F. Powell, Jr.: What is your position, restraint or prior restraint. For any state or county or city employee says anything libelous about anybody else in the course of his duties.
Daniel T. Taylor, III: The reason I was opposing was to try to give you, I say I was opposing to try to give you a reasoned answer.
Lewis F. Powell, Jr.: Yes, if you would address that, I will appreciate it.
Daniel T. Taylor, III: Thank you. I believe, Mr. Justice Powell that when criminality is imputed, I believe that when by state action now, absent a consideration of private acts and so forth by state action that when one is in indiscriminately lumped into a criminal quays and taken as having being convicted when the mere fact of arrest is all that is involved that Constantineau mandates a reasonable notice that this is not contemplated to be set against man and an opportunity to be heard. I believe that the Fourteenth Amendment which of course upon which Constantineau is grounded directs that this must be the case therefore is kind of a lengthy answer. But my answer most respectfully would have to be yes to the Justice.
William H. Rehnquist: You do not (Inaudible)Mr. Taylor base your claim on a protection of reputation based on Kentucky Law. Take an example, if I may say that Arizona puts out a Arizona Highways magazine and if they defame somebody in that magazine would that give that person who was defamed in 1983 cause of action against the editor of the magazine?
Daniel T. Taylor, III: I would suggest Mr. Justice Rehnquist that as a matter of fact Baker is helpful in this and so is York where they talk about an abuse can be so gross. And I might add that in the brief for petitioner it was stated somewhere along the line that Katz v. United States, says there is no general constitutional right to privacy as what they wrote. It did say that. But it also did say as Baker and the other cases that it is a question, perhaps of the heinousness of the offense. Now, therefore I respond that we are talking, I believe about a matter of degree. I do not believe that every time someone if you pardon me badmouths someone that there are automatically into a situation of constitutional proportions. I think what I would emphasize in the case at Bar is that here you had the Christmas season, you had 800, but wide dissemination and I mentioned that already and the broadcast aspect and what was called. I could not help but reflect a minute ago when the distinction was being made of that Constantineau that if one had a choice, I would rather be reprobated as a drunk than a thief. No, I am not trying to be humorous or in any way when I say that.
Warren E. Burger: Is the Constantineau case a 1983 action?
Daniel T. Taylor, III: No, if it please Mr. Chief Justice.
Warren E. Burger: It is just an action to --
Daniel T. Taylor, III: It was directly appealed from a three-judge panel which had held the statute. It was Wisconsin’s State Statute so it must have been a three-judge panel proceeding originally Your Honor.
Warren E. Burger: Than it was. But it was not in 1983. The thing that I want to emphasize is that it was not a 1983 civil rights action.
Daniel T. Taylor, III: May I respond that is --
William H. Rehnquist: I think it have to be it in getting to federal --
Daniel T. Taylor, III: I believe that --
William H. Rehnquist: (Inaudible)
Daniel T. Taylor, III: Mr. Justice Rehnquist --
Lewis F. Powell, Jr.: When was it?
Daniel T. Taylor, III: It is a 1983 action but I know it was a statute held unconstitutional then I believe by direct appeal to this Court. If that is how it worked.
Lewis F. Powell, Jr.: Mr. Taylor.
Daniel T. Taylor, III: Yes, Mr. Justice.
Lewis F. Powell, Jr.: You asked the question indicating that whether or not 1983 would apply to confer a federal jurisdiction would depend on the degree of the defamation. Let me put up a couple of hypothetical to you. Suppose that the (Inaudible) the Police Department in Louisville. I do not know whether they have one or not to let us assume that they do have a little magazine that comes out once a month and let us assume it had a story about defense counsel and it named a well-known defense counsel and said he had a habit of using perjury testimony. Would that support a 1983 case? Would it require a prior due process hearing before the story was published?
Daniel T. Taylor, III: I would not see that fact situation as similar to this.
Lewis F. Powell, Jr.: Not similar.
Daniel T. Taylor, III: May I distinguish why with your permission.
Lewis F. Powell, Jr.: Of course.
Daniel T. Taylor, III: Or as a matter of fact it is interesting that Baker had the First Amendment aspect as you recall where the distinction in Baker was made because I mean they do, police officers have a right to communicate it. We are not supposed to have opinion. It is a different case. I believe that what is so significant here are the facts in this case. They are wrong. Here is a man never convicted of anything. He is only prior arrested for speeding and write away thousands of copies and a young man starting his life distributed in his area not any inference or innuendo but the plain active branding of criminality by state action.
Lewis F. Powell, Jr.: Mr. Taylor, if you were the lawyer accused of using falsified testimony, would you not consider that rather raw also.
Daniel T. Taylor, III: Would I consider it raw?
Lewis F. Powell, Jr.: You said this was a raw case and you used that to distinguish the case that I put to you.
Daniel T. Taylor, III: I believe I would Mr. Justice Powell but I think in considering my remedies, I would not feel that I was in a comfort, in a position. It had a constitutional statute in the situation.
Lewis F. Powell, Jr.: May I put another one to you. This may be easier for you. Could any State support television educational programs? Suppose that a professional, a state TV program was discussing the history book written by another profession, and was critical of it and in the course of that discussion on educational television, he said, this professor was really a fraud and was widely known to use erroneous false information in his textbooks. A 1983 jurisdiction?
Daniel T. Taylor, III: No, I do not think so.
Lewis F. Powell, Jr.: No prior restraint in that situation.
Daniel T. Taylor, III: Your Honor I think that you have some other aspects of law there. I do not believe that there you have state action that you have under color of state law and the abridgment of the case.
Lewis F. Powell, Jr.: No state action in teaching classes. What about those?
Daniel T. Taylor, III: I was going to add a little more to that sentence. I was saying. Pardon me Your Honor. As I understand its basic, its black letter law for 1983 action, you need under color of state law and the abridgment of a right guaranteed a right, privilege or immunity by the constitution, that I respectfully submit is where the Fourteenth Amendment becomes so important in these type of proceedings. So now people have opinions. May I perhaps shortcut and say some time for all us by saying. It is one thing for professor “A” to say professor “B” is a fraud.
Warren E. Burger: Excuse me counsel, you get along better with that microphone if you will stay about six or eight inches away from it.[Laughter]
Daniel T. Taylor, III: Thank you. I was suggesting that one college professor imputing to another is being a fraud, is vastly a different case from the combined Police Departments. In the Christmas season for 15 years to run indiscriminately through their arrest. I say indiscriminately because I am in those cities and counties in practice and can assure this Court that there are more arrests with this offense than the 112 appearing here. They just, it is just sort of their gift to the community at least that is how they saw it, you see and I think that is tragic and sad thing really, like where they took credit here. Credit for what? For calling an innocent man all this number of times a criminal. The constitutional argument, I think also should give a good deal of thought to just the most basic premise in American Criminal jurisprudence, the absolute bedrock, the one axion, the one room that every school child learns and that of course I am referring to the presumption of innocence.
William H. Rehnquist: Well, no one found this man guilty in official proceeding?
Daniel T. Taylor, III: With all respect Mr. Justice Rehnquist the police department tried him in there. They have characterized him as active in this field. They have printed, how else do you communicate in a brochure, the picture and the language described in relates. They say thief.
William H. Rehnquist: Well, I thought the presumption of innocence that you just mentioned was directed to criminal proceedings, directed at ultimate incarceration of the person?
Daniel T. Taylor, III: I think a presumption of innocence is shared and possessed by all of us at all stages in our life and in the proceeding of a criminal case. It is a basic thing. What we were talking, we were trying to reach the constitutional aspect of our fact situation here. In other words, did Davis have standing? Well, we submit in behalf of respondent Davis that he had standing constitutional standing because of his constitutional presumption of innocence. Now, I freely concede that the magic language, presumption of innocence is not in an adjective way spelled out in the constitution, but I further say to you Your Honors that substantively and from the beginning of this Court, that right has assumed and has always enjoyed and should most certainly enjoy constitutional statute.
William H. Rehnquist: But why in answer to Justice Powell’s question when one professor calls another man a fraud and perhaps accuses the most plagiarism, why can the same principle be invoked, if they are state employees?
Daniel T. Taylor, III: I think possibly, one might want to consider a bit. You almost walk the area of bad faith you know. But may I point is that to the Justice, this police department had within its own building, the records that it could determine by going right downstairs, what disposition has been made in and may I further say just to correct another thing here? In my state, a finding of filed away is not some sort of -- filed away with leave some sort of indefinite continued or anything. I really do not think that we have to reach that. I think that the appendix will show the order of the Court. I think it is an anomaly that should be done away with, but nonetheless we have to deal with it. In Kentucky, you are entitled to insist on a final determination of your case which I did for Davis. I did it myself, first time I did. The reason being, the reason I did it was after I saw that he was being characterized as a thief then he had to get the matter resolved. He had to enforce his right and demand that the case be dismissed, but I thought there might have been some misapprehension on that point. I do not believe that this is a practice. It is followed in too many states. It is middle ground, this limbo between convictions, but there is no way that the petitioners in this case can claim that Davis’ case had ever been brought to conviction at the time they ran this about him? I have just very brief two or three more minutes if there would be any question.
Warren E. Burger: I think no.
Daniel T. Taylor, III: Thank you.
Lewis F. Powell, Jr.: May I just ask one final question? Do you perceive any impairment of First Amendment rights of employees of state and local governments by this due process theory of yours requiring as a prior restraint to prior due process hearing before they indulge in common law defamation?
Daniel T. Taylor, III: May I respond that I understand what you asked me is indeed --
Lewis F. Powell, Jr.: Well, my concern is whether or not your position does not run head on into the First Amendment? I am not talking about ultimate right to recover damages. I would be with you all the way on that in this case of course, but you are arguing for a position of prior restraint of the First Amendment issue?
Daniel T. Taylor, III: Yes.
Lewis F. Powell, Jr.: This is on the egregious case, but there are lot of cases that are not?
Daniel T. Taylor, III: Of course this is a case of where -- I think I must come back to your analogy of your question a couple of minutes ago about the professors. Two professors warring within the groves of academe is one thing.
Lewis F. Powell, Jr.: Warring publicly on educational television?
Daniel T. Taylor, III: That is right. It is a matte of fact that might also be expected, but to take a man’s good name, his future, what does the Fourteenth Amendment say? Life, liberty, and property. I suggest that he has a liberty interest in the jobs he might want to take, his property. There is another great quote in that appendix that says, “Oh! It is in the appendix. He, Davis had better watch his step. Next time he is going to send the appendix.” The page right before your reading.
Byron R. White: Mr. Taylor, you might be able to sustain what it is involved here in the preliminary hearing to do the first, but you still got to go across the notion that he has a private hearing before rather than after. Certainly, the state gives him all the hearing he needs after the circulation. You can sue in court and you get as much of a hearing as you want. Do you think Constantineau requires that hearing the state extends be before?
Daniel T. Taylor, III: A I read Constantineau, no.
Byron R. White: Whether you have any hearing any time there, (Inaudible)?
Daniel T. Taylor, III: But of course, the statue was abrogated. It was kind of. There is a parallel between Constantineau in our case because the damage that was done by the time they got to Court, what happened to that statute has been of course --
Byron R. White: We know, but you also have to argue then that it is not enough to repair the damage afterwards?
Daniel T. Taylor, III: Oh! You take what you can get Mr. Justice White. I would respectfully respond to you that Constantineau mandates, notice and an opportunity to be heard before the state maligns the character and good name of the citizen that is what I believe.
Harry A. Blackmun: Well, then how do you distinguish Mr. Justice Powell’s inquiry about the two professors, we are assuming there state maligning and there is just of much of a good name that issue there as here?
Daniel T. Taylor, III: That is true. I am reminded for some strange reason of the famous Oscar Wilde case of I think possibly that I am too hard on the professors. Maybe if I represented the professors that they have as much right to their expertise and their reputation and their character, but if Mr. Justice Powell had said what if one professor had called the other a criminal, plus here is another thing, we have all seen in the media where an opportunity is given for a person to express his views and this Court has pronounced the law in that area within the last couple of years and so forth. I do not believe that that public radio and the media is any proof at all or guarantee for what they produce. Here we have state action in Davis’ case purposely done, more than carelessly done, done I think in bad faith and I think under Constantineau, as a question was that they just simply cannot do it. It is just basically the Fourteenth Amendment says -- it is I think a very traditional and uncomplicated case. No person shall be deprived by state action of life, liberty, or property without due process of law. Now, we have not had a trial, a case or anything in the case instant at Bar as yet. The case was reversed at the Sixth Circuit. It happened and I have argued. The case is now before Your Honors and so forth. As this Court rules, we will determine the final chapter no matter. May I thank you again.
Warren E. Burger: Mr. Porter you have a little time left. Do you have anything further?
Carson P. Porter: Yes, Your Honor.
Warren E. Burger: You have about five minutes remaining.
Carson P. Porter: Thank you Your Honor. Mr. Chief Justice and may it please the Court. There are a couple of points which I should like to address the Court’s attention. What I think falls in the area of what I like to characterize as a factual misstatement by my learned colleague, Mr. Taylor in analyzing the status of filed away in the Commonwealth of Kentucky and putting it in the proper context of this particular litigation. One of the interesting points is that this gentleman at that time the dissemination was made was in a status where his case was subject to being reopened. It was not until after the dissemination was made that Mr. Taylor came to the Local Police Court and petitioned for dismissal of the charge. The second and most important thing, I would like follow up on is Mr. Justice Powell’s comments regarding prior restraint on a significant First Amendment freedom of these two particular Chiefs of Police. The question really being in the end result is this Court going to say to the factual circumstances presented here today that before these petitioners made these editorial and potentially defamatory remarks about this respondent, they had to hold a full evidentiary due process hearing or as we respectfully submit and petition the Court to adapt the proposition that the proper remedy lies in the Circuit Courts of the Commonwealth of Kentucky for defamation. Thank you Your Honor and Mr. Chief Justice.
Byron R. White: (Inaudible)
Carson P. Porter: Yes, Your Honor.
Byron R. White: Suppose (Inaudible) that an injunction result on the right track. I suppose you would as well as damages I suppose that a plaintiff could get an injunction against --
Carson P. Porter: In state court proceedings?
Byron R. White: -- against the police continuing to take a proof that the allegation was false?
Carson P. Porter: Yes, Your Honor. Injunctive relief would lie.
Byron R. White: On the grounds that there was irreparable injury involved?
Carson P. Porter: Yes sir. We adapted the civil rules in the Commonwealth of Kentucky that the temporary restraint order could be issued to prevent the further dissemination of this particular articles are at least with the words active shoplifters attached to this dissemination. That kind of injunctive relief could lie.
Warren E. Burger: Was this procedural delay that you had referred to, part of some program in Kentucky that is generally called the early diversion of cases that is deferral of any prosecution in certain types of cases, first offender and so forth or was it just administrative inadvertence that no prosecution proceeded?
Carson P. Porter: No, Your Honor it is a specific provision in the Kentucky Law where the respondent in this case --
Warren E. Burger: From the application of it though?
Carson P. Porter: Well, according to the transcript that was presented at the evidentiary hearing there were no prosecuting witnesses present at the time. The respondent made the motion that his case be filed away instead of making the motion that it be in fact dismissed. No question he is entitled to the presumption of innocence, but in Kentucky we make a distinction between dismissal filed away and convicted and there is a procedure whereby a criminal defendant can instead of a asserting, I want to have my day in Court, I want to have a trial, I want to be dismissed, can say to the Court and it would be granted by the Court as it was in this instance that I would like to have my case filed away with general leave to be reopened. Obviously when a case is in that category, the police have to retain the arrest records in their file or there would not be a file upon which the case could subsequently be reopened and that was the status of the respondent’s position on the date of this dissemination.
Harry A. Blackmun: If your standard determines what cases may be filed away?
Carson P. Porter: No sir, Your Honor. There is no particular standard. It is basically a presentation of the circumstances to the Court and first off in the case cited in the brief in Arsdale v. Caswell, it cannot be done unless the defendant concurs.
Byron R. White: Well suppose this case was over and he had been found guilty and fined with $100.00, he paid the fine and then the publication was made, the circulation was made with the words “active shoplifter” on it and he sued and asked for an injunction?
Carson P. Porter: I think Your Honor that he would be entitled to a defamation relief even under those circumstances because --
Byron R. White: In whatever condition in this case was?
Carson P. Porter: Basically, I would concur, except I wanted to correct what I perceive to be in this statement of the status of that provisional in the law. Thank you Your Honor.
Warren E. Burger: Thank you gentlemen. The case is submitted.