Earl Warren: Number 4, Garrison -- Jim Garrison, Appellant, versus Louisiana. Mr. Deutsch.
Eberhard P. Deutsch: Mr. Chief Justice, may it please the Court. It will be recalled that the appellant in this case is the District or Prosecuting Attorney for the Parish of Orleans which is coextensive with the City of New Orleans. That when he took office something over two years ago, he launched an attack on a backlog of criminal cases awarding -- awaiting trial and at the same time embarked on a campaign against commercialized vice in the Bourbon Street district of New Orleans. That a dispute arose between himself and the judges of the criminal court after he had been in office for sometime as to his use of certain funds for these vice investigation conditions that the judges adapted a rule that five of them would have to concur in approving his vouchers for these expenses as against the statute which provided that any one judge could do it. That they then, adapted a further rule allowing him no further expenses for that purpose out of this fund that a recently retired judge made a derogatory statement concerning him, which was published in the press that he was asked to -- by reporters if he had any comment to make and in reply, made the statement which is the issue of this criminal proceeding for defamation under the Louisiana Defamation Statute. He stated that the judges were themselves responsible for the backlog of cases that they were not working, that they were taking excessive vacations, that they were endeavoring specifically to block his investigations of commercialized vice which "raises interesting questions about the racketeer influences on our eight vacation-minded judges". And this proceeding arose out of that on a petition by the judges to the Attorney General of the State, requesting him to institute criminal proceedings, charges against the appellant under the Louisiana Criminal Defamation Statute. And on the same day that he did that, the Supreme Court of Louisiana appointed the judge from another district to hear the case. Trial by jury was denied. Motion for trial by jury was denied under the Louisiana statute which provides the juries are not to be used in misdemeanor cases, this thing a misdemeanor. And his place properly presented under the First and Fourteenth Amendments were overruled. He was found guilty and the judge said if he would be less than frank, if he did not say that the defamatory statement might not have been issued without some provocation and under the mitigating circumstances, as the judge quoted, fine -- levity fine of $1000 or in the alternative, a jail sentence of four months.
William J. Brennan, Jr.: Mr. Deutsch, does the jury trial demand predicated on a federal constitutional claim?
Eberhard P. Deutsch: If -- when it was on the Federal Constitution, yes, because the Louisiana Constitution specifically provides that you may not have a jury in a misdemeanor.
William J. Brennan, Jr.: What I mean in terms, was it?
Eberhard P. Deutsch: It was -- it was predicated on the Sixth Amendment actually. It should probably have been predicated on the First and Fourteenth, that's the position we take here. The Supreme Court of Louisiana did, specifically, passed on the point that it was not necessary to furnish a jury in this case under the First and Fourteenth Amendment. The Supreme Court of Louisiana affirmed the conviction passing on the specific constitutional issues which had been raised and relying primarily on this Court's opinion in Beauharnais versus Illinois that libelous utterances are not within the area of constitutionally protected speech.
William O. Douglas: Is the appellant still in office?
Eberhard P. Deutsch: Yes, sir. There, the judges and he have made up if that's of any interest, at least six of them. They're getting along fine now and each --
William O. Douglas: That doesn't moot this case, doesn't it?
Eberhard P. Deutsch: No.
Speaker: Is the calendar situation improved?
Eberhard P. Deutsch: Pardon?
Speaker: Is the calendar situation improved?
Eberhard P. Deutsch: I understand it has been that it's very difficult to furnish adequate statistics. I've been interested in asking that question myself because the -- for instance, the result of this vice campaigns has increased the docket considerably. And to make it up statistics which are meaningful is difficult. There are still many cases on the docket but the -- there have been many more cases tried than ever before. For the first time in history, the judges are now holding court regularly on Fridays which they were not doing. They are holding -- they are trying jury cases at times when they were not trying them before. They have cut down this vacation period which the record shows, arose in 1921 before there was air conditioning in the New Orleans. It was just too difficult to get these cases tried in a non air -- air conditioned courtroom. But now, the courtrooms were air conditioned but empty while the jail is not air conditioned, were filling up rapidly and so on and so on. That condition has improved tremendously.
Tom C. Clark: Has Mr. Garrison stood election since --
Eberhard P. Deutsch: Pardon?
Tom C. Clark: Has Mr. Garrison then stood election then reelected or had they had an election?
Eberhard P. Deutsch: No, he remains and -- he was elected, I think for four years and his term has only ran something over two years at this time. Now, in the -- there have been other elections down there in which he has been involved as between the judges and himself. I suppose that maybe an answer to your question. He's been successful. He's had popular support for this campaign. Now, the -- in this New York Times case, the Beauharnais case was at least distinguished with the statement that the Constitution does not protect libelous publications, do not -- there is -- that the statement in the Beauharnais case to that effect, do not foreclose inquiry into cases which might involve the use of libel laws to impose sanctions upon expressions, critical of the official conduct of public official. Now, that brings up something that's not in the briefs. It just happened a few days ago. But there's been another or there have been two other prosecutions in Louisiana under the statute very recently. One of the cases or at least a forerunner up, one of those cases is on this Court's docket. I think its Numbers 24 and 49. They're coming up as a part of this set of cases now, Cox versus the State of Louisiana. Now, arising out of that case, the Supreme Court of Louisiana, a few days ago, denied a rehearing. And I think this is particularly significant in two cases involving prosecutions under the same defamation statute. A Negro minister was stated to have defamed a court, that's a judge, and the District Attorney in Baton Rouge, Louisiana, by casting aspersions on the Court's conduct with regard to prosecution of Negroes. And he was prosecuted under the Defamation Statute, convicted, fined in each case, the full limit of the -- allowed under the statute of $3000 plus one year in jail on each case, making two years plus $6000 and then required to serve an additional two years if he didn't pay the $6000. Now, the case came up to the Supreme Court which wrote a considerable dissertation on the effect of this Court's decision in the New York Times case, stating that its Defamation Statute was entirely valid and this prosecution was entirely valid under that statute but reversed, and then after that, in a short part of the decision, reversed the decision on the grounds that the District Attorney had not recused himself because he was in a sense, a party to this prosecution. What I'm getting at is, that this is being used. The statute is being used --
Byron R. White: Do you have the citation to that (Inaudible)?
Eberhard P. Deutsch: The -- Numbers 24 and 49 on the docket of this Court right now, is the case out of which this prosecution group. The citation of the case is State of Louisiana versus Cox, C-O-X, B. Elton Cox.
Speaker: You say is 24?
Eberhard P. Deutsch: No, no. Well, look --
Speaker: What you're -- (Voice Overlap) --
Eberhard P. Deutsch: The prior case is Number 24, the case out of which the prosecution arose. The prosecution for --
William J. Brennan, Jr.: Well, you -- you're speaking about cases that we have on the argument this -- this week --
Eberhard P. Deutsch: Pardon me?
William J. Brennan, Jr.: You're speaking of the Cox --
Eberhard P. Deutsch: That's right.
William J. Brennan, Jr.: -- statements on the argument list this week?
Eberhard P. Deutsch: Right.
William J. Brennan, Jr.: That demonstration before the courthouse and so forth?
Eberhard P. Deutsch: That does not bring up this defamation prosecution.
William J. Brennan, Jr.: No, but I think you said that through out of that instance.
Eberhard P. Deutsch: That's correct.
William J. Brennan, Jr.: Now, and -- there's been since a Supreme Court decision sparing on the use of the Defamation Statute.
Eberhard P. Deutsch: Well, actually directly involving the defamation.
William J. Brennan, Jr.: Well now, what's that opinion?
Eberhard P. Deutsch: Now, that opinion is number -- well, it was decided on June 8 of 1964. It's Number 47018 of the docket of the Supreme Court of Louisiana.
William J. Brennan, Jr.: Well, is it published somewhere?
Speaker: (Voice Overlap)
Eberhard P. Deutsch: It's not yet published. Rehearing was denied October 7, just 10 days ago.
William J. Brennan, Jr.: Well, then let me have that number again.
Eberhard P. Deutsch: 47018.
Speaker: Where the opinions --
William J. Brennan, Jr.: So anyway, can we get copies of that?
Eberhard P. Deutsch: Yes. Well, if you all would give me time, I'd arrived in the United States yesterday morning from a long absent and I will put this in the form if you like it, with supplemental brief.
William J. Brennan, Jr.: Well, I'm sure the Attorney General is indicating we can get them. Yes.
Eberhard P. Deutsch: No, I have no doubt on that. There must be copies available -- I have only one copy. I'll be glad to print it up and file it for the Court, if necessary. But it -- it demonstrates, I submit, the frightful use to which a statute of this -- of this sort can be put. A man is sentenced to two years in jail, to pay a fine of $6000 and an additional two years if he doesn't pay the $6000 because he used language. However, strong it may have been reflecting on the judge and District Attorney, and it happens to involve the identical statute. Now, James -- I -- I skim over a great of deal this, simply in the hope of getting questions. We've been through it from top to bottom. I think -- I call the attention of the fact that James Madison who literally drew the First Amendment with his own hand said that it would be a mockery to state that you could not have laws preventing publications and still have laws punishing them when made. Our position is simply -- certainly for the purpose of this case that when a statute of this sort is used to support seditious libel, it is invalid under the First and Fourteenth Amendments. Now -- or we could go further of course and apply it to all libel. I could go further and say that a jury trial is an indispensable necessity under the Due Process Clause of the Fourteenth carried over from the Sixth just as this Court has recently been rendering its decisions taking the federal Bill of Rights under the Due Process Clause of the Fourteenth Amendment that a jury trial is just as much necessary as a matter of due process in a state court as it is in a federal court. I don't have to do that in this case because in my opinion, the history of prosecutions for contempt clearly indicate that a man is entitled to a trial by jury on a defamation charge even if such a defamation charge may be made at all with regard to a public official.
Potter Stewart: Well, what's your definition of seditious libel?
Eberhard P. Deutsch: Putting it very succinctly, defamation of a government official, of a public official.
Potter Stewart: Even in his personal capacity.
Eberhard P. Deutsch: Well, perhaps not but it's almost impossible to separate the two. For instance, if I say one of the judges of this Court took a bribe that reflects on his -- both his official and his personal character. If I say that racketeering influences are brought to bear effectively on a judge, I don't think you can separate that from his personal -- from his --
Potter Stewart: Now, what have you said -- what have you said in the same breadth that he's a very fine judge but he's a notorious adultery.
Eberhard P. Deutsch: Well, I would take it that adultery is not a characteristic of judges and accordingly, that would be -- it would refer to his personal rather than his judicial capacity. I think --
Arthur J. Goldberg: Would that be seditious --
Eberhard P. Deutsch: -- you've got the extreme in there.
Arthur J. Goldberg: Would that be a seditious libel?
Eberhard P. Deutsch: I would think not. It -- I -- I can concede if I sort of used my imagination enough that it might have something to do where the casing was trying or something of that sort. But by enlarge, I think there is a distinction but I -- there is a very broad shadow zone, I put it that way. It's aptly hard to say that a judge in a -- is subject to racketeering influences and then say in the same breadth that that does not refer to his official capacity. I wouldn't -- I -- I can't conceive with that.
Arthur J. Goldberg: Mr. Deutsch, do I remembered correctly in the record last time that the lower court judge may found an actual (Inaudible)
Eberhard P. Deutsch: May I discuss that briefly for a moment. You will find references to -- to that all through his opinion and his rulings. He admitted evidence to show malice of prior statements, subsequent statements and so on and so on. And --
Arthur J. Goldberg: Is that what you import that these recent decisions you have been stating in the Court analyzing the New York Times?
Eberhard P. Deutsch: At this most recent decision probably goes a little further. It's an analysis of the New York Times case as applied to this case, and takes about 8 or 10 pages to do that. And then it says we reverse anyway, I mean its dictum clearly.
Arthur J. Goldberg: Isn't it necessary (Inaudible) the criminal constitution based upon (Inaudible) statements and the public officials in relation to the state and official conduct (Inaudible)
Eberhard P. Deutsch: That -- that is my position period. But I don't have to go that far, the one MacLennan case if I can do it. Now, there was no actual malice within the meaning of this -- of the Times case and I would like to quote a few words from the trial judges' opinion which I don't think are in the brief, but on page 633 of the record. What he said was, "I cannot believe that this man could've had an honest belief that what he was saying that true," he said that. Then he said, "However, even where it conceded for the purposes of argument that he did have a reasonable belief as to the truth of the statement. I am still of the opinion that the State has proved actual malice. Now, he's got a complete contradiction insofar as this Court's statement in the Times case goes, that actual malice involves a necessary knowledge that his statement was untrue or a reckless, disregarded the truth.
Speaker: What page of the record is that?
Eberhard P. Deutsch: 633, sir.
Tom C. Clark: There was malice but --
Eberhard P. Deutsch: Pardon me.
Tom C. Clark: There was malice but the conviction would be that (Inaudible), under your theory?
Eberhard P. Deutsch: Well, I don't think -- no, no. If I understand you correctly, sir, under my --
Tom C. Clark: Considering that there was malice, that the Court -- this Court found it was malice to say, would you (Voice Overlap) --
Eberhard P. Deutsch: I still say that under the First and Fourteenth Amendment, there can be no such as thing as seditious libel.
Tom C. Clark: Then it would be --
Eberhard P. Deutsch: I could go further with Mr. Justice Black but I don't have to for this case.
Byron R. White: Well, you do go as far as though saying that -- or do you that under the First and Fourteenth, there may be no physical constitutions provided?
Eberhard P. Deutsch: I don't' make that statement. I'm willing to make it, I believe it. But for the purpose of this sake, there maybe -- I say it for the purpose of this case.
Byron R. White: There'll be no -- no criminal constitutions for the libel of the public officials?
Eberhard P. Deutsch: That's it. That's my statement for the purpose of this case. I'm willing to go further. These criminal libel laws are now being used as I've demonstrated in the brief and a Columbia Law Review Article.
Byron R. White: I think that would be pursued there, if I may -- if I made a private -- if I made a public official recover damages then for -- for New York Times, I suppose he could recover damages for his -- for the libel that you felt that the public officials, he can make a necessary choice.
Eberhard P. Deutsch: He can make the showing of actual malice as defined by this Court. He may under the latest decision of the majority of this Court, recover damage.
Byron R. White: And you -- but you say that that --
Eberhard P. Deutsch: The vast difference between using these statutes for blackmail in criminal prosecution. Although, when you start giving judgments for $500,000 --
Byron R. White: (Voice Overlap)
Eberhard P. Deutsch: -- or $3,000,000, you're doing even worse I suppose, except for the jail sentence part, you're going to worsen the points which are all was --
William J. Brennan, Jr.: We suggested something like that in the Times opinion, didn't we?
Eberhard P. Deutsch: The Times opinion.
Tom C. Clark: You said there's a different rule on a criminal prosecution.
Eberhard P. Deutsch: Pardon?
Tom C. Clark: The Times' rule would not apply, you say, in a criminal prosecution --
Eberhard P. Deutsch: Oh, I --
Tom C. Clark: -- but at the actual matter there.
Eberhard P. Deutsch: -- I do say the overall rule of the Times case does not apply to a criminal prosecution that there may be no such thing as a criminal prosecution or defamation of a public official under the First and Fourteenth Amendments.
William J. Brennan, Jr.: What you're saying is that an actual malice test as we defined actual malice in Times, would not say that criminal prosecution if it's for defamation of a public official.
Eberhard P. Deutsch: I should --
William J. Brennan, Jr.: Is that on the ground that that's a seditious libel law and that whatever maybe the status of civil libel suits, the First Amendment precludes in the criminal prosecution?
Eberhard P. Deutsch: I do say that and I add to it as anchor to Winword that there was no proof of actual malice in the sense in which this Court applied it in this case anyway.
William J. Brennan, Jr.: Well actually, it doesn't -- am I -- I forgotten, but I had the impression that this statute makes truth in all defense if in fact, the defamatory statement is made within a will, doesn't it?
Eberhard P. Deutsch: In this new, you'll find a rather lengthy discussion of that point. That is correct, but you will find a discussion of it in this latest decision which I have just given you the Supreme Court of Louisiana.
William J. Brennan, Jr.: Well, I'm -- I'm just wondering if on the face of it to that extent, this statute isn't inconsistent. Assuming now the Times' actual malice test defies a criminal prosecution, isn't this statute on its face inconsistent with that constitution there?
Eberhard P. Deutsch: I don't think there is the slightest question about it on that truth point. There's no question whatever applied. Now, the Court says, "There's no proof of truth of -- of this charge in this particular case."
Potter Stewart: I'm just lightning to make sure I understand your point. Is it that there -- that the First and Fourteenth Amendment protects anyone from prosecution who libels or slanders any public official in any manner?
Eberhard P. Deutsch: Well, I'd say that for this purpose, and I don't want to get into your adultery case. I mean I don't want to get --
Potter Stewart: But say he --
Eberhard P. Deutsch: -- of an attention off.
Potter Stewart: Do you say he's a -- he's a --
Eberhard P. Deutsch: Certainly in his capacity --
Potter Stewart: -- he's eventually count one (Voice Overlap) --
Eberhard P. Deutsch: -- as a government official.
Potter Stewart: But he cheats on the golf course, he cheats his friends every Saturday when he plays golf.
Eberhard P. Deutsch: Well again, you're within that shadows on because a man who do that isn't fit to whole public office. I -- you see, the shadows on is so broad to me that there is almost no way of separating a man's personal character from his public character. If he has a -- a bad personal character, he's not fit to serve the public. No. I -- I can't go all the way with you. I mean there are some things that -- well, let's say gentlemen don't call wise, others do. I -- I say you can go way off an attention on this question and I'm trying to avoid that. But when you speak in realities as we're doing in this case about stating that a judge is subject to racketeer influences, a judge is subject, you're not saying John Doe. Then the judges of this Court are subject to racketeer influences. You're not off even in the shadow zone. That's clearly in his public official -- his capacity as a public official.
Potter Stewart: What --
Tom C. Clark: I think there, it would be contrary Chief Justice Hughes in decision in the Near, wouldn't it?
Eberhard P. Deutsch: Yes.
Tom C. Clark: Would have to rule --
Eberhard P. Deutsch: That the opinion of this Court is contrary to that sir. That -- that dictum of Mr. Chief Justice Hughes in the Near case was clearly overruled in the Times case. I read that actual language. It says, "Those decisions no longer -- they -- as the Beauharnais and other decisions saving libel." Chief Justice Hughes that the public official always has his remedy under the civil and criminal libel laws, that's the effect to what he said. Now, this Court said in the Times case that doesn't hold anymore, oh on.
William J. Brennan, Jr.: Didn't we? I thought we said it held to -- to the civil, to the extent that it was proof of actual malice as we defined it.
Eberhard P. Deutsch: Well, let me read what it said. I'll get the -- I think it was --
Tom C. Clark: You mean Near or you mean --
Eberhard P. Deutsch: In the New York Time case, this Court held that its prior statements in the Beauharnais and other cases that includes the merit Near case.
William J. Brennan, Jr.: And they're all -- they're all listed in the footnote and including here -- go on.
Eberhard P. Deutsch: To the effect that the Constitution does not protect libelous publication do not foreclose inquiry into cases which might involve the use of libel laws to impose sanctions upon expressions criticized of -- critical of the official conduct of public official. Well now, --
William J. Brennan, Jr.: But then we went on that.
Eberhard P. Deutsch: But Mr. Justice Hughes didn't leave that kind of an opening in his decision.
William J. Brennan, Jr.: Oh, but then we went on to hold it, did we not? That nevertheless, state libel laws are available to the public officials if he can prove actual malice as we defined it.
Eberhard P. Deutsch: If you hold that, I -- I say --
William J. Brennan, Jr.: If you hold it.
Eberhard P. Deutsch: You held it only for the purpose of civil libel.
William J. Brennan, Jr.: Oh, yes, yes.
Eberhard P. Deutsch: And I say that there is a significant distinction between taking this Negro preacher and given him four years in jail or saying that they're not being treated right by the judge and the prosecuting attorney. And giving somebody a right to sue for some actual damages under those circumstances, I -- I make that distinction very frankly.
Byron R. White: But Mr. Deutsch, let's assume the -- let's assume, the person who held a deliberate lie -- deliberate their exams and lie about the public official, are those are lie that he held it anyway and he does it with th expressed purposes that destroying the man's reputation, and there are people like that. And you're only -- why shouldn't this probably open to criminal consititutions?
Eberhard P. Deutsch: Well --
Byron R. White: Your only answer so far is, there's been a libel. That's seditious libel. It's a seditious libel law.
Eberhard P. Deutsch: Well, I didn't mean to put it in a -- a form of a libel except that -- I meant that the libel had a meaning.
Byron R. White: Would it --
Eberhard P. Deutsch: Now, the bidding you will find for instance in John Stuart Mill, which was quoted, I think by Mr. Justice Goldberg in the Times case, if I'm not mistaken, who said that in the broad field of public affairs, that is part of the game. He said that a long time ago, that people unquestionably fail to tell the truth from time-to-time and know they're doing it but they do it during the course of public discussion and that in a democracy like that of the United States, does not give a cause of action, certainly, a criminal cause of action." Now, that's what I mean by --
Byron R. White: But really to serve the truth, we should protect the light of it.
Eberhard P. Deutsch: Exactly. I'll go all the way on that.
Byron R. White: Did your constitutional protection to the known deliberate lier --
Eberhard P. Deutsch: I think it was intended by the framers of the First Amendment that that should be the case.
William J. Brennan, Jr.: You mean Mr. Deutsch, that's the -- notion where he can't stand the heat, stay out of the kitchen.
Eberhard P. Deutsch: Exactly. I think that's part of public life in a democracy, and I think it's a good thing that it is. I'd like to reserve a few moments for rebuttal.
Earl Warren: Mr. Gremillion.
Jack P. F. Gremillion: Mr. Chief Justice, Justices of this Honorable Court. I would like to say with all due respect to Colonel Deutsch that he has confused the facts in this matter, in this particular case. And with the Court's permission, I'd like a few minutes to tell you exactly what the facts are and exactly how they came about and I'll do it very briefly. And I think that you will find that the record bears me out. Where the defendant in this case robbed the District Attorney, he made a public statement that these fines and forfeitures was -- should be corrected. After he took office, he met with the judges and this is in our supplemental brief. He met with the judges and discussed the matter with them and agreed that a better system should be worked out. Upon the misrepresentations of the District Attorney, the defendant in this case to one of the retired judges over the payment of rob, are copied. This judge wanted verification of the price of the copy. He was refused the approval of this expenditure. The fines and forfeitures, goes into a fund handled by the District Attorney in Orleans Parish. In order to get money out of that fund, he sends a copy of it and hand it over to city hall which is approved by the arbitrator and then he takes it to one of the judges to have it signed. After this misrepresentation, there were several other misrepresentations and this is all brought out in the record and in the testimony. So the judges, in order that they were -- couldn't be played against to one another, they met and adopted this so called 5 by 8 rule. Now, he knew all this at the time. He knew it when he campaigned, he knew it afterwards and he knew that the statements he was making about being a -- so called being a black, by vice and so forth were in error because of the fact that from the time that they met with the 5 by 8 rule at which he was present, the judges approved some close to $50,000 of money for him to use in so called, vice investigations. In addition to that, he had 12 policemen assigned to him by the chief of police and this is in the record, who were paid by the city, not out of his payroll, who worked at his direction. Therefore, there was no possible way that these judges could've blocked any investigation that he made. He had all kind of money. He had all kind of personnel including his own investigators. So when he made the statement that they blocked his investigators, that is not true and he made that statement deliberately knowing it to be false. Now, let's talk about vacations. He said that they weren't working that the jail was closed. Well, the District Attorney in the State of Louisiana controls the docket. He determines who, where and when they will be prosecuted. The judges have nothing to do with that. Furthermore, in Louisiana courts, just as this Court, does not work on Saturdays and Sundays, that's 104 days out of the year. The Constitution provides -- its courts would take -- criminal courts would take two and a half months vacation which is another 75 days. There are 17 legal holidays. You add those up and it comes to 196, I believe. He claimed that they were taking 206 days vacation. Well, they had to take 197 days vacation. There's no that they can do anything about it. And I think that this Court realizes and appreciates that while you have a Criminal District Court without law clerks and without a library, that it certainly going to take them some time in addition to sitting, to look up the various legal points that come before that court. Now, knowing all that, he became irritated apparently to retired judge's statement over the question to this rack and he called a news conference on November the 2nd. And he just said, "Everything in the world," but the chief thing that he said was that "all of this so-called blocking his investigation and taking vacations and so forth, that this raised interesting questions of racketeering influence and no other questions." Now, after that happened, the judges filed an affidavit against him, charging him with defamation under the same statute that he is now being prosecuted. He had one of his assistants walk into court and dismissed that, which the District Attorney has the right to do. Now, as I said to this Court previously and I stated in my brief. Here was a situation where judges were accused to being racketeers. And I agree with the Court, on one of the justices that made a remark that if he's guilty of that, he's got no business being a judge. So the -- the eight judges petitioned to me because I have authority over District Attorneys to come in and prosecute him on a bill of information. And it was our position that if what he was saying was true, then it didn't have anyone fit to hold office. So I filed a bill of information because I thought that it was my duty and I had to do it because that is the only way that the State can prosecute an individual. It's got to be done in the name of the State. If you know I, if I walk over and I slap you and you filed a charge against me for simple battery, it's got to be in the name of the State because the State stands for law and order. You can't take law into your own hands, such as your risk as about seeing he cheats at the golf course, what does that man going to do? Is he going to take a gun and go kill this fellow? You can't do that in -- in our particular society. So continue -- continuing, I filed a bill of information against him to give him the opportunity to prove his charges. After the bill of information was filed on November the 13th to 22nd, I think it was. He made a speech, a catholic school meeting in New Orleans and he went through the same charges. He accused these judges of being influenced by racketeers. He says there's no other reason and he said that he was going to keep shouting to the public because he had no other allies because the other public officials belong to the association of armed robbers. And incidentally, in the meantime, he had told several reports all of which is in the record, that it was nothing but a racket, that the only way he could put these sacred house back to work was to tell the public about it. When I tell you that the record bears out, that he knew that there wasn't any truth to what he was saying and that he didn't have any reasonable idea or remote consideration that what he was saying was the truth.
Speaker: (Inaudible)
Jack P. F. Gremillion: That what Your Honor?
Speaker: (Inaudible)
Jack P. F. Gremillion: No, I don't think so because I think that that statement would be one that may have been made in the reason for this or the truth. Now, my statute provides this, that defamation is a malicious publication or expression in any manner to anyone other than the party to pay him of anything which tends to expose any person to hatred, contempt or ridicule but to deprive him of the benefit of social intercourse. Now, it provides a privilege. An actual malice must be proved, regardless of whether publication is true or false in the following situations, where the publication or expression is a comment made in the reasonable belief of its truth upon (a) a conduct that a person in respect to public offense. Now, Mr. Deutsch was talking about the Cox case. Let me say that the two cases on the docket here, this (Inaudible) 24 and the 25. One involves the right to picket in the City of Baton Rouge which is not connected with this case at all? The other one involves the right to be issued a parade for in it by the City of Baton Rouge, which doesn't involve this case at all. And the Cox which was decided by the Supreme Court which is not reported and I looked just before I came and stopped before it even in advanced sheet. He was charged with defamation of a district judge for this reason, that he said it was common knowledge that oppressed Negroes who appeared in Judge Blodgett's Court had to pay a fee which he knew it to Judge Blodgett benefit to keep from going to the penitentiary. Now, that's what he was prosecuted for. And one of the defenses among others that he made was that he had the right to say anything he wanted about a public official because he was protected by the First and the Fourteenth Amendment. And our Supreme Court went into this matter very thoroughly and here's what it says. It says, "We cannot agree with appellant therefore that the New York Times case," talking about the Sullivan case, "its authority for holding that if conditioned that the publication or expression must be made in a reasonable belief of its truth, the privilege to apply violates to constitutional safeguards in the First Amendment." We view our statute as being fully in accord with the New York Times pronouncement, conceding that case of civil libel is applicable to our criminal defamation legislation, and it's fully safeguarding those accused under it in contravention with the First Amendment. Our statute permits the qualified privilege to exist regardless of whether the publication was true or false when it is a comment made in a reasonable belief of its truth upon the conduct of a question in respect to public affairs and in such case, actual malice must be proved by the State. Our criminal statutory requirements for proving actual malice are in accord with those set out in the New York Times case for civil libel. Our statute is clearly constitutional when measured by the standards set out in the New York Times case to satisfy the First Amendment. And then it goes on of course arguing arguendo and says this, "In our opinion, our statute is not for public," and this is the same statute that he's prosecuted here, "is not for public to the -- poignant to the First Amendment simply because it recognizes that the public have an interest in the maintenance of the public act with public men." Public affairs could not be conducted by a man of honor with a view to the welfare of the country. If it taxed upon them, it could be made at will, distracted of -- distractive of the honor and character and made wholly without foundation. Our statute sufficiently protects those honestly criticizing the public officials as to their official conduct to satisfy the First Amendment when it properly forbids unjustified malicious attacks upon them. And may I remind this Court that the defendant --
Potter Stewart: But General -- General --
Jack P. F. Gremillion: Yes sir.
Potter Stewart: General Gremillion, your statute does apply doesn't it? Even if the expression or publication is true if -- if the actual malice can be proved.
Jack P. F. Gremillion: Oh, yes. Absolutely.
Potter Stewart: And the --
Jack P. F. Gremillion: In other words, our Supreme Court has now held in accordance with your rules that in the prosecution of a public official for defamation, actual malice has to be proved.
William J. Brennan, Jr.: Yes, but Mr. Gremillion, the Times case defined actual malice -- actual malice as a knowingly false statement or a state that in fact false made in reckless disregard in the field.
Jack P. F. Gremillion: And that is --
William J. Brennan, Jr.: Now --
Jack P. F. Gremillion: That's true and --
William J. Brennan, Jr.: -- and as may I ask a question please?
Jack P. F. Gremillion: Yes.
William J. Brennan, Jr.: Under your statute, as I understand it, if the statement is in fact true, there maybe a criminal prosecution if ill-will toward the person to defamed.
Jack P. F. Gremillion: That's what I said, Your Honor.
William J. Brennan, Jr.: It's true. I know but isn't that inconsistent with the Times?
Jack P. F. Gremillion: No, no it's not. It's just a question of fact now. It's a question of fact as to where the actual malice was proven by the State.
William J. Brennan, Jr.: Well, that's an --
Jack P. F. Gremillion: And in this case, in response to a bill of particulars. He asked --
William J. Brennan, Jr.: Let -- let me ask you the questions.
Jack P. F. Gremillion: Alright. I'm sorry Your Honor.
William J. Brennan, Jr.: If the Times case rest, because I think it does, on the falsity basically of the -- of the statement that to be defamatory. That is the test even of false statement. It's not the subject of a civil libel act unless the false statement was made, knowing it was false or in reckless disregard whether it was true or not.
Jack P. F. Gremillion: I --
William J. Brennan, Jr.: But under your statute, as I understand it, even a statement in fact true may be prosecuted if the -- one making the statement makes it with ill-will toward the person defamed, isn't that so?
Jack P. F. Gremillion: Yes.And in that instance, our Court, that is why I read you the Cox decision. Our Court has adopted and supported the New York Times' view, that now, regardless of civil or criminal prosecutions that when you're speaking of a public official, actual malice is an essential ingredient of the crime and must be proved.
Byron R. White: Well, what's with the actual malice?
Jack P. F. Gremillion: Actual malice that it was made with ill-will, that it was made to expose the individual to hatred, contempt and ridicule.
Byron R. White: That makes no relevant of the facts --
Jack P. F. Gremillion: No -- no. Absolutely not and that's why this case is distinguished from the Sullivan case or the New York Times case.
Byron R. White: Then, in that case, we don't have to (Inaudible)
Jack P. F. Gremillion: The factual situation here is entirely different from the New York Times case. These individuals, public officials as you -- as you recall the Sullivan case, weren't even mentioned by name. And in the Sullivan case, one of the officials of the New York Times had stated that he had looked into it and he felt that he had every reason to believe that it was true. But we've got a different factual situation here in the Garrison case --
Byron R. White: Yes, but the same rule applies -- you say that they construed actual malice, as the Time -- by New York Times.
Jack P. F. Gremillion: Right, that's correct.
Byron R. White: But do you know of any evidence to this record that that -- to the effect that the defendant knew or that there was reckless disregard for the suits or statements that he made other than the judge's statement that of course, no one could make a statement about this man, this honorable man without having actual malice or without having references regarding the proofs.
Jack P. F. Gremillion: The record is -- the record is -- of course the record speaks for itself Your Honor but the record has and shows actual malice and that he knew or had reason to believe and we proved that -- about the vacations, we proved about the vice, we put the chief of police of the New Orleans police on -- of course to show that he had these 12 men. We put the judges on to show the vouchers. We actually put the vouchers in.
Byron R. White: But he didn't prove the statements of false, that's what (Inaudible), statements are false.
Jack P. F. Gremillion: We proved statements of his false and we proved that they were made with malice.
Byron R. White: (Voice Overlap)
Jack P. F. Gremillion: Yes, we actually told him that we were going to prove malice in law and in fact and the District Court found that in its were -- well-worthy opinion.
Byron R. White: Where's the evidence -- where's the evidence in the record about malice? Are there -- I agree -- I agree that there's evidence in their own as to whether or not that (Inaudible) this case is true or false, what about the malice?
William J. Brennan, Jr.: Malice in the sense Mr. Attorney General of -- that he knew the statements which be proved in fact to be false -- were false when he made them or that he made them in reckless disregard whether they were true or false. Where is that --
Jack P. F. Gremillion: Page 6 --
William J. Brennan, Jr.: Where is that evidence?
Jack P. F. Gremillion: Page 613 of volume 2. The findings of the lower court of the --
William J. Brennan, Jr.: (Inaudible)
Jack P. F. Gremillion: Yes, it's about 10 pages devoting to malice.
William J. Brennan, Jr.: What page did you say?
Jack P. F. Gremillion: 613, starting with 613. It starts really at 610 in the opinion of February the 6th, and it goes on through and is devoted -- about 10 pages is devoted to it.
Byron R. White: Well, this is just -- just (Inaudible)
Jack P. F. Gremillion: This is the findings of the trial -- this is the findings of the trial court. Well, you see in Louisiana, you only can appeal on exceptions which are taken to the various rulings of the Court. And the lower court opinion of course deals with it but the -- the details of actual malice are found in this opinion by Justice Palmer (ph).
Speaker: (Inaudible)
Jack P. F. Gremillion: Honestly, it's too long. I'll be glad to read it for you but --
Byron R. White: I was really wanting to -- I am familiar about the opinion of it, I was wondering about the evidence in the record with all --
Jack P. F. Gremillion: Now, let me say this that the State put on 23 witnesses --
Byron R. White: (Inaudible)
Jack P. F. Gremillion: -- and the defendant called, 22 and a defendant never took the stand which is not to be held against him and I'm not urging that now. And he didn't call a single one of his witnesses and every fact that the State of Louisiana proved was absolutely uncontradicted and is there without any contradiction whatsoever.
Speaker: (Inaudible)
Jack P. F. Gremillion: Yes. In other words, it says that you have a qualified privilege where the publication or expression is a comment made in the reasonable belief of its truth, and then on (a), the conduct of the person in respect to public affair. So yes, I agree with that. I definitely agree with, and I call to your attention the fact, that the State of Louisiana in this case, advice the defendant, they were going to prove malice both in law in fact and actually did so. And now our Supreme Court has come along and absent, the various thing that you Justices are speaking about now and I'm going to have a copy of this -- sufficient copies of this made and sent to you and I'd be very happy to do it.
Speaker: (Inaudible)
Jack P. F. Gremillion: Now, I only have this one copy.
Speaker: (Inaudible)
Jack P. F. Gremillion: I don't mean that I'd be glad if I have some notes over here which are --
Speaker: (Inaudible)
Jack P. F. Gremillion: Oh yes.
Speaker: (Inaudible)
Jack P. F. Gremillion: Well, this receipt relieved me of the necessity of sending further copies in.
Speaker: (Inaudible)
Jack P. F. Gremillion: I will be very happy to do so, Your Honor. I certainly will be very happy to do so. I -- suppose that -- that's all I can see in this particular case now, except to --
Byron R. White: How about the jury trial Mr. Gremillion, Mr. Attorney General?
Jack P. F. Gremillion: In Greene versus United States which is cited at page 147, the opinion of the Supreme Court, this Court held that criminal -- the theft cases, were not subject to jury trial as a matter of constitutional right. A misdemeanor in our law is defined as an offense. The punishment of which is necessarily a fine or imprisonment in the parish jail or both. And in this particular case, I think the maximum fine is $3000 or one year, and incidentally Colonel Deutsch in the Cox case, they're only sentenced to one year and he eventually had failed to pay the fine, not due. Now, we of course, in the State versus Hayden which is cited in the opinion of the Supreme Court went thoroughly into that question. And our Supreme Court has found that as long as an individual charged with a misdemeanor has the proper guarantees such as the -- the filing of a bill of information, the right of cross examination, the right of counsel properly in time and so forth that there is no violation of his constitutional rights and that misdemeanors can constitutionally be tried before judges.
Speaker: (Inaudible)
Jack P. F. Gremillion: No. We weren't talking about -- the Court wasn't talking about libel. It was talking about a criminal statute.
Speaker: (Inaudible)
Jack P. F. Gremillion: Well, my answer -- my answer to that of course is that there is no violation of an individual's rights without a trial by -- I mean before a judge, because the rights that he is guaranteed under the First and Fourteenth Amendment, can't be just as thoroughly tried before a judge in fact (Inaudible) then it can before a jury. And --
William J. Brennan, Jr.: But Mr. --
Jack P. F. Gremillion: -- that's what this Court held in the Jacobellis. I din't know how your pronounce that then this quantity of books (Voice Overlap) --
William J. Brennan, Jr.: But Mr. -- Mr. Attorney General, I think I'm correct that even before our Constitution, England had introduced the jury trial requirements as they safeguard against abuse of criminal libel.Does that have any relevance for us in interpreting the First Amendment?
Jack P. F. Gremillion: No. No, it does not. Absolutely not, because our court system was drawn up of course -- our Court of Criminal Procedures was drawn up by --
William J. Brennan, Jr.: Well, I think I asked as for the First Amendment, do that have any significance for you?
Jack P. F. Gremillion: No, I -- I do not. I'm trying to answer Your Honor because there is no case in the Louisiana jurisprudence of the federal jurisprudence from this Court that says that -- that a jury trial is required as a result of the privileges guaranteed by the First Amendment. Now, if this Court said so, it will be something absolutely de novo.
William J. Brennan, Jr.: Well, my question is in fact -- isn't that something we're going to decide in this very case? Maybe the first time (Inaudible)
Jack P. F. Gremillion: Well, it -- it maybe. But I don't think that it's necessary. I don't think it's necessary to sustain his conviction and I don't think that after you read this particular record and you will find out that this accused rights were violated in any way.
William J. Brennan, Jr.: Well (Voice Overlap) --
Jack P. F. Gremillion: But I do agree with you -- there's a lot of things that you could into in this case which is entirely new.
William J. Brennan, Jr.: Well, if the Constitution entitled him to a jury trial, he didn't get it although he insisted on it.
Jack P. F. Gremillion: Oh, he did not get a jury trial, that's true. And if you -- if you do that, well then we probably have to go back and try him again, but there are a lot of things in this case that you could go into as a -- as a matter of de novo. I mean, for -- for instance with the Fourteenth Amendment, there's several things that you could go into. But that has never yet, by reason in any of the cases that have been decided either by this Court or by our Louisiana Supreme Court. Now, if you do that, I'm -- I will say this, that you're going to oppose a -- a tremendous burden upon the States, because then every misdemeanor, every traffic ticket, every battery, simple battery case or every case will then have to be tried by a jury. And Louisiana, it's one of those particular States that has consistently held and has been tested in the courts that an individual being tried by a judge before judging on for a misdemeanor, that all of that accused rights are thoroughly protected as a result of that particular trial procedure. And I -- I say this again that -- that if you -- if you do do that, you're going to force us to rewrite our entire Constitution on that particular point.
Speaker: (Inaudible) statute that has to be shown?
Jack P. F. Gremillion: You have --
Speaker: It's quite obvious -- it's quite obvious that this gentleman didn't approve or these judges, he didn't think they were good judges and he didn't think that they were ought to hold their job and so forth, is that enough?
Jack P. F. Gremillion: All you have to prove that what he said was a result of ill-will and a result of malice and that it was done deliberately.
Speaker: You mean personally all we all too?
Jack P. F. Gremillion: Oh yes. And again, Your Honor, it -- it comes to the reading of the entire record because when a man says that the only reason that they're doing this is because they're influenced by racketeers. Now, when we say the influence by racketeers that means that he's influenced necessarily by a man of ill repute, and it indicates of course, that he could have taken a pride. And then to further show his state of mind, we never did have the opportunity to probe him of his state of mind because he didn't take the stand. But then, immediately after the charges were filed, he makes another statement in which he says it's a racket. He says, "If I had to do it over again, I do it, I would -- I'd have no regret. I'd continue to do the same thing." He continues to call the sacred cows, he continues to malign him, he continues to say that it's nothing but racketeering questions and influence that there's no other question involved, that they're an association of armed robbers and just a few days before his trial, he again repeated the fact that these judges were influenced by racketeers. So what you assume and all of that was introduced, of course, to show the question of malice which was the only way that we could have proved it. So when you lump all that together, I don't see how any courts could find and I think the district would quite properly found that these statements were malicious because we proved that they were not true. We put the judges on the stand and asked them, "Did you read the statement of November 2nd?" "I did." "Is it true?" "No." Every one of them said the same thing. And we asked them, "Have you been subjected to ridicule?" "Yes." We couldn't of course say what that was because that would have been hearsay, as between the individual would have criticized them in this particular defendant. But we did prove that. We prove that in every instance. We prove that the statement was false in its entirety and it was made with malice.
Earl Warren: Mr. Attorney General, I understood you to say though that under your statute, even if it was true and done with malice, can you define malice as ill-will that he would still be guilty under your statute? Was I --
Jack P. F. Gremillion: I don't -- would you mind repeating that Your Honor?
Earl Warren: I understood you to say that under your statute, even if what you said was true, if he said it with malice, namely, with ill-will for these judges that it was punishable.
Jack P. F. Gremillion: Well, I don't think I said that because --
Earl Warren: Well, I thought your statute says that.
Potter Stewart: The second paragraph of Section 48, and you said yes to that question at least six times (Inaudible). Second paragraph of Section 48.
Jack P. F. Gremillion: Yes, I agree with that. Yes.
Earl Warren: Now, let me ask -- let me put a hypothetical question to you then. Suppose a judge approached the litigant and -- and told him that for a certain amount of money, he would decide the case in his favor.
Jack P. F. Gremillion: Yes.
Earl Warren: And the litigant became outraged and had thorough ill-will toward the judge from that time on and exposed him to the public and stated that as a fact, that the judge had solicited a bribe from him in order to decide the case in his favor. He did it intentionally for the purpose of discrediting the judge in the eyes of the public. Under your statute, would it be libel?
Jack P. F. Gremillion: Oh yes.
Earl Warren: He would.
Jack P. F. Gremillion: Yes. If it was made with ill-will and malice, yes. And in addition to that -- wait a minute. You mean -- you mean if -- if the -- the individual was prosecuted by defamation?
Earl Warren: Yes.
Jack P. F. Gremillion: No, I don't think he could -- could be convicted under that set of circumstances. I do not. I absolutely do not because he would have a complete defense. He would have a defense of the truth.
Earl Warren: The statute says whether it's true or false.
Jack P. F. Gremillion: That's correct. To expose any question to hatred, contempt and ridicule or to defy him of the benefit of public conference or social intercourse by Section 48, I don't (Inaudible).
Potter Stewart: But why is that -- in my other places on page 3 of the appellant's brief, the second paragraph. That's the one to which reference has been made. And it -- well, here's what it says, "Where such a publication or expression is true, actual malice must be proved in order to convict the offender."
Jack P. F. Gremillion: Yes, the statement -- the statute does say that Your Honor, but we've never had a case like that to -- happened before, then I believe that it -- that it actually proved that he had solicited a bribe. I don't believe that they could convict him with defamation. And in addition to that, a judge is subject to disbarment procedures.
Arthur J. Goldberg: General, I suppose you consider that, as applied to this case (Voice Overlap) --
Jack P. F. Gremillion: But this case is --
Arthur J. Goldberg: It involved (Inaudible)
Potter Stewart: That's right.
Arthur J. Goldberg: But that -- applied to this case, this case involves both of the right -- both by the right.
Jack P. F. Gremillion: And I come in that, Mr. Chief Justice Warren, you will have a hypothetical situation, of course, I -- I've got to answer I believe because that's the way it is, but that doesn't apply to this particular case because this particular case was made upon -- predicated upon the fact that the State which this -- this defendant made were false and they were known to be false and were proven to be false.
Earl Warren: Well, I understand that. I -- I'm just testing out the standard of your -- the limit of your statute and so on.
Jack P. F. Gremillion: That's all I have.
Earl Warren: You may -- you a have a few moments. Would you -- would you take them now?
Eberhard P. Deutsch: I really just say one thing in connection with the matter of the jury trial. Fox's Libel Act in England was 1792 and undoubtedly the discussion which formulated itself into Fox's Libel Act was part that went into the First Amendment. At least that is the -- that is my honest conviction.
Hugo L. Black: That argument -- that argument commenced a number of years before.
Eberhard P. Deutsch: Oh many years. That had been going on since --
Speaker: (Voice Overlap) --
Eberhard P. Deutsch: -- before William Penn was tried and so on. Yes, sir. That -- that was a -- accumulation which is just as much a part of the history of the First Amendment as it is a Fox's Libel Act itself.