Earl Warren: Number 517, Amant versus Thompson.
Russell J. Schonekas: Mr. Chief Justice, may it please the Court.
Earl Warren: Mr. Schonekas.
Russell J. Schonekas: Yes sir. This case unlike the two prior ones I don't think is nearly is complicated presents very simple issues were obtained. I say they're simple because they are singular and simple it's just a question in -- the Louisiana Supreme Court has absolutely refused to follow the instructions and law as laid down by this Court and that by some in substance of the entire case. Mr. Phil St. Amant was a qualified candidate for the Senate -- for the State of Louisiana and during his campaign he made certain statements against one Herman A. Thompson who was then a police sheriff's captain for one of the parishes, that is the parish of East Baton Rouge unlike -- most every other state we have parishes as apposed to counties. We're different again in that respect. We're always different. Now, we again this particular parish did not have police officers, they have what they call a sheriff's force. A sheriff with other deputies who will work directly under him and his official functions as a sheriff. This plaintiff -- respondent here, Herman A. Thompson was a deputy sheriff enjoined the position of captain. Mr. St. Amant in his campaign and over a -- with a radio address which was also distributed claimed that Mr. Thompson had been received from the other party to -- change of hands of money between themselves and another individual whom he claimed was very nefarious character, Mr. Ed Partin who was a union official with quite a background and who they claimed were very close friends and Mr. Partin had been there and Mr. Thompson had been to Mr. Partin's office and there had been a change of money. Immediately thereafter, Mr. Thompson, Captain Thompson instituted a liable and slander sued in the State Court of Louisiana under what we referred to as Article 2315, that is the tort law for the State of Louisiana which says that every action of man that causes damage to another he, by whose fault this shall be the case, must repair to damage. In this damage of liable sued against him, the defense was raised, number one, that there was -- it was to -- not malice, it was not -- was not liable, was not slander etcetera and further in the alternative that if it were that these statements were true that money had exchanged stand. The case was tried in the lower court, a judgment was rendered against Mr. St. Amant alleging that the statements were liable and slanderous implying malice to him by virtue of these actions that he have taken. This Court had handed down the Time-Sullivan -- Times case and based on that decision waiving it a new trial was applied for the district level, the judge should consider the decision of the Times case and ruled that it was not applicable here. He did however hold that Captains -- Thompson was a public official as had been defined in the various cases prior that time but not under the federal theory. He said that under the laws of Louisiana, Captain Thompson was a public official and that he was a deputy sheriff for the captain level. But on the rehearing, we consider the Times case, he refused to apply it. The case then went to our Court of Appeals, the First Circuit at which time the Court of Appeals specifically applied the doctrine and said that the aegis of the Times case did apply, there was no malice, it could not be imputed, they overruled the decision of the lower court and dismissed plaintiff suit. Rich will apply to it for the normal rehearing to Louisiana Supreme Court. In the Louisiana Supreme Court, the case was again argued and the Court held that while it did apply again as to the lower court, the District Court and the Court of Appeals that Thompson was a public official under the Times case. Still that he had not done taking certain action that were required, he to -- they thought to wipe away this threat of malice and therefore we say implied malice again was applied which cannot be done under the decisions that Your Honors have recently written along that line particularly like with Garrison, the Butts case, the Walker case and the Sullivan case. But nevertheless they did in a 4:3 opinion with the strong dissent by Justice McKellop (ph), the -- we applied for the rehearing subsequently in writ which we are granted here. The only problem, the only issues that are raised that I see that came here is number one, was this deputy sheriff a public official. But Your Honors we're very careful to point out in the Times case, you didn't say definitely how far down the line you would go to determine when is a man a public official or a public person as the other line of cases differentiate from public official.
William J. Brennan, Jr.: Well, may I ask? I guess perhaps I don't read your Supreme Court opinion correctly, I thought the holding here was that yes he's a public official within the New York Times rule and therefore was a burden to show malice in the sense of knowing forcefully or reckless disregard that while there was no showing of knowing falsely there was sufficient evidence to show reckless disregard, am I wrong about that?
Russell J. Schonekas: Yes sir. That is the holding but is a manner in which this holding is applied.
William J. Brennan, Jr.: Yes, tell me was this a jury trial?
Russell J. Schonekas: No sir, to a judge. All of our jury cases are all subject to review on laws as well as facts of precious view are tried -- I'm sorry.
William J. Brennan, Jr.: Well, is there anything in the record which indicates that the -- accepting the Supreme Court's holding that this is a New York Times case, is there anything at all to indicate whether or not in reaching the judgment on what basis the trial judge raised it, did he set -- did he hold anywhere that he -- on your motion after Times was decided, I reconsidered this, I apply the New York Times rule, I say there is evidence of reckless disregard?
Russell J. Schonekas: Yes sir and his reasons for judgment, I am --
William J. Brennan, Jr.: Where is that? What page is that?
Russell J. Schonekas: So, on page 25 of the writ, it would be in --
William J. Brennan, Jr.: On this appendix?
Russell J. Schonekas: Yes sir, it's -- I'm trying to give it to you now.
William J. Brennan, Jr.: Yes.
Russell J. Schonekas: He did say it in there.
Hugo L. Black: Is it in the brief of the petition for certiorari?
Russell J. Schonekas: (Inaudible)
William J. Brennan, Jr.: The reasons for judgment at page 141 of the record, is that it?
Russell J. Schonekas: 141, I believe those are the initial reasons sir yet they're not the ones considering the --
William J. Brennan, Jr.: 154 then, would it be?
Russell J. Schonekas: Yes sir.
William J. Brennan, Jr.: I see.
Russell J. Schonekas: In the reason it starts at 154, correct sir. That's when he's talking about -- he holds and to be a public official under our law which was a misapplication but it doesn't matter insofar as that is concern they won 57. He goes to the Times, New York Times-Sullivan case and he -- his position there was that he didn't bother to properly investigate. This is what almost the same thing that the Supreme -- our Supreme Court held that he's inactivity, it is the basis for his malice's that I've --
William J. Brennan, Jr.: Well, I'm just trying to get this in focus.
Russell J. Schonekas: Yes sir, well that --
William J. Brennan, Jr.: As I understand it then he did say, "Well, I'll look at this evidence in light of the New York Times rule which I must apply."
Russell J. Schonekas: Yes sir.
William J. Brennan, Jr.: And I -- and then he analyzes it from 157 and 158 and he said this satisfies the New York Times rule and what's your position that that evidence could not possibly satisfy the New York Times rule?
Russell J. Schonekas: No sir, we say it's -- it satisfies it but what he says when he comes down to the application of the New York Times he says that the -- it does apply but yet that we find there is actual malice in that there was a reckless disregard or whether this was true or not that St. Amant recklessly disregard what was truth. We say he substitutes ignorance of falsity for ignorance of knowledge. There's no parity there. He says, yes New York Times applied but St. Amant didn't go check this out. He didn't go check this out for it to be --
Byron R. White: So your point here -- you're -- you answer Mr. Justice Brennan yes?
Russell J. Schonekas: Yes sir.
Byron R. White: And you're answering yes and say that whatever evidence arisen, this record didn't amount to reckless disregard?
Russell J. Schonekas: That's correct sir. In other words, if they have -- the very things that they're calling us to say that is actual malice are the very things that you all have rejected in other decisions, that is the investigatory failures. The -- in other words, St. Amant worst could've been guilty of negligence of not going further in doing something more --
Byron R. White: Well, what if the -- what if his informer had been a known lawyer, a notorious lawyer?
Russell J. Schonekas: I think and known to him and that would be knowledge of falsity and he would be liable, yes sir.
Byron R. White: Oh, not knowledge of folly, he didn't actually know the same --
Russell J. Schonekas: No, he'd have --
Byron R. White: Suppose he just knew that -- he would've had enough suspicion of the source of it.
Russell J. Schonekas: Then, possibly he could not sit on --
Byron R. White: But he had never seen or heard to this fellow before, did he?
Russell J. Schonekas: No sir, he had, he knew the man. He knew the man, man's name was Alvin. He knew the man to be a former official, an officer of this union who was providing him with this information under a notarial affidavit. This was not somebody just off the street that furnished him with his knowledge and he went on television. This was a former official of this very union.
Byron R. White: Well, I know but that doesn't mean much -- I don't suppose -- what if he got the affidavit from Partin?
Russell J. Schonekas: I think it would have been -- with Partin with his notorious background that he knew about he may (Voice Overlap) --
Byron R. White: Well, he's a union official.
Russell J. Schonekas: I beg pardon.
Byron R. White: He was a union official?
Russell J. Schonekas: I don't know whether he was at that time or not but let's take that this -- I say it parallels the Times case entirely. You suggest to me that because he was a union official because of Partin's --
Byron R. White: Yes, but who brought the ad to the Times?
Russell J. Schonekas: I beg your pardon sir?
Byron R. White: Who brought the ad to the New York Times?
Russell J. Schonekas: Other people than the people that were being sued at that -- they were also --
Byron R. White: And who were they?
Russell J. Schonekas: I forget the exact people (Voice Overlap) --
Byron R. White: Were they known to the Times?
Russell J. Schonekas: I beg your pardon sir? In other words, at the time New York Times accepted and ad.
Byron R. White: Yes, but from whom?
Russell J. Schonekas: From other people --
Byron R. White: People they knew.
Russell J. Schonekas: Right. But the Court, this Court also said in that decision that despite the fact that they knew them that they would've only check their files when they're reporting system they would've seen that this was not true. There was no question it was not true in the New York Times case. That is part of it, it was not true and this Court said that despite the fact that the New York Times people merely had to check their own reporting system that this was a breakdown of an investigatory failure. Here, what you would say is its St. Amant, he didn't go (Voice Overlap) --
Byron R. White: So that anybody who gets an affidavit from anybody else with scandalous charges is in about third person may publish it and freely.
Russell J. Schonekas: I think then as this Court said the burden is upon the party that brings the suit to show that they acted with malice not even hatred.
Byron R. White: Well, I know but the party who brings the suits says this does amount to reckless disregard when all you've done has taken an affidavit from some person, this contains a scandalous charge against a public official and that fellow just, "Well, I've got it from somebody and he signed an affidavit that I'm not reckless at all if I publish this."
Russell J. Schonekas: I say that falls within the rules that's set out and clearly been said by this Court and -- these cases, the Butts case, the Walker case and there is that it is not just that is possibly negligence but negligence does not constitute malice. This is what Your Honors have said time and again. Justice Black has said that going further down the line each time. You must practically come in and say under the Times-Sullivan case, I hate you, I'm going to say it, I'm going to say it to hurt you and that's the only way it's malice. But all these other --
Byron R. White: But that isn't even malice under New York Times?
Russell J. Schonekas: If I say that I'm doing it strictly to hurt you, yes sir and I'm only doing it because I want to hurt you.
Byron R. White: What if it's the truth?
Russell J. Schonekas: Oh, that's the only exception to the rule. I'm assuming it isn't the truth that we get to that.
Byron R. White: I know but what if he has -- what if it --
Russell J. Schonekas: If it's a truth, he can say it.
Byron R. White: What if it isn't the truth and -- but do you think it would be changed in this case in these facts if the fellow testified that I did it because I hated him although --
Russell J. Schonekas: No sir.
Byron R. White: -- I certainly thought they were true?
Russell J. Schonekas: No sir. That's not what's been said in the prior case by this Court but would be part of it is here is that we've maintained as we did in the other courts that it was true. There is ample evidence to support it. Clearly the man says, "Yes with the main defense to the fact that the money didn't change hands was that Partin said he always receive checks, he haven't took cash." But the secretary who also testified in the case said that she opened up the envelop that we've been delivered by Parton to him and it contained cash. This is completely contradictory and does support the affidavit of Alvin that it was cash changing hands between Partin and his deputy sheriff down there. And Partin said unequivocally he only took checks. But the lower court says despite the fact that we don't have the burden, the burden is on him to prove the malice, the lower court said, "We should've produced Partin. We should've produced the other secretary to prove all of these things." We don't have to produce all that but we did produce the secretary to these people who showed that despite his accusations that there was cash. Now, I object, if I may, the great weight that was placed on it by the Supreme Court justice of our state was that this lady's testimony wasn't brought about until after the suit was filed. That's true maybe St. Amant didn't know about it who was the plaintiff or relate to -- I mean, defendant relater here but the man furnishing him that affidavit well knew of it at the time. And that's how it was brought about. So we say that we stand clearly that under the test that you've established he is a public official. He only acts at some --
William J. Brennan, Jr.: Well, I guess we don't -- I guess this really for us narrows down to the single question whether there was evidence upon which there could have been -- a finding could be made that this was done with reckless disregard or whether it was true or false.
Russell J. Schonekas: That's the entire --
William J. Brennan, Jr.: Concededly it false?
Russell J. Schonekas: No sir.
Byron R. White: Yes, but perhaps (Voice Overlap) --
William J. Brennan, Jr.: Well, for our purposes that it's false, isn't it?
Russell J. Schonekas: Yes.
William J. Brennan, Jr.: And that's -- it's that narrow issue, isn't it?
Russell J. Schonekas: Yes sir. I just said simple and correct, so I said it's a simple proposition here. They have the burden of proving it. Now, in the respondent's brief he argues the point that it wasn't technically pleaded in the original plea. That was not a party to him, that's not an excuse for the case. But it was raised in a lower court. It was raised in the motion for new trial.
William J. Brennan, Jr.: What -- well, can that make any difference for our purposes --
Russell J. Schonekas: No, no.
William J. Brennan, Jr.: -- your Supreme Court has said --
Russell J. Schonekas: They have (Voice Overlap) --
William J. Brennan, Jr.: -- and this action is an action governed by the New York Times rule, we find that the rule was satisfied because it was enough evidence upon which a finding could be based that this was false and it was altered in uttered disregard or whether it was true or false --
Russell J. Schonekas: That --
William J. Brennan, Jr.: -- or reckless disregard.
Russell J. Schonekas: That simply the entire case. If there'd no need for any further arguments Your Honor state.
Earl Warren: Mr. Kleinpeter.
Robert L. Kleinpeter: Mr. Chief Justice, may it please the Court. I represent Mr. Thompson and I represented Mr. Thompson's inception of this lawsuit and I would like to briefly state a few of the facts that led up to this litigation and have been little -- I wont say misstated but not properly stated to show that proper perspective under which in the circumstances under which this case arose. Mr. Phil A. St. Amant was a retired lieutenant colonel from the army. He qualified for the office of the United State Senator running against the incumbent Russell B. Long in 1962 prior to June 27, 1962 he prepared a television film and on this film he had certain people appear to make statements among which was one Mr. J.D. Alban (ph), one who had a known criminal record. Now, upon being and he showed this at a pre-television show at the capital house in Baton Rouge, Louisiana to the news people. The news -- the television station being aware of this, spoke to their counsel, they advised Mr. St. Amant to the effect that they -- while they had to give him equal time as a candidate for public office on the television station that they could not permit him to let these people appear Mr. Alban who was not a candidate nor would -- could they run the risk of being liable for what he said. Under Louisiana statute, there's a specific statute that exempts radio and television station from any liable or deformation actions for anything, any political candidate says because he have to give him equal time. So, ruling this out, he then had Mr. Alban prepare an affidavit for the television station. So then instead of Mr. Alban appearing on the program himself Mr. St. Amant takes his -- this affidavit and he reads what Mr. Alban says in a question and answer forum. Now, in this question and answer forum, he starts off with this, I have story to reveal tonight which is so unusual that I have both -- this time on a television to inform the public. This story involves a well documented criminal, an ex-convict who became a labor chief, referring to Mr. Partin. It involves misuse and theft of union funds, dealings with communist official in Cuba, a criminal conspiracy to destroy evidence and destruction of that evidence, death resulting from a commission of a felony and second death by hit and run by a union car, again, referring to Mr. Partin. Then he goes on to infer that Captain Herman Thompson who was on this East Baton Rouge Sheriff's Office which is the same as a county sheriff's office, we do have police departments, had received funds and they didn't know what to do. They want to predicament. Well, now, the evidence clearly show that Captain Hersman Thompson in helping the sheriff's office to carry out certain charitable events did participate in solicitation of funds. All of the unions in the parish -- of these Baton Rouge contributed the -- namely, the kid's baseball clinic. The annual salvation (Inaudible) five roses and one of Captain Herman Thompson's duties as -- in-charge of the uniform division is to see that the deputies go around and pick up these funds and deliver them and he went to these teamster's hall and again he knew Mr. Partin, he had to know, I mean his business but they were not close personal friends as they refer to. They did not socialize together anything else he knew him personally through a business connection. He went there, they gave him these -- whatever funds the union had to contribute, he delivered them to the Sheriff's secretary, Mrs. Pauline Cox and that testimony is in the record. Now, Captain Herman Thompson nor the Sheriff's office was in no way related to -- in the -- to this political campaign. Political campaign was between Senator Russell B. Long and Mr. Phil A. St. Amant. So, he just opens up where the scout is shot in his speech and he defames these all kind of people, not only Captain Thompson. Now, on the trial of the case, I filed a suit and I alleged that they were maliciously made. The case was tried in March of 1960 -- May of 1964, the New York Times case came out March of 1964. Now, at that time when Mr. Golden Mills was Mr. St. Amant's attorney and he got rid of him and Mr. Jack Rogers took over him. Then between the original decision in the application for a new trial, a Mr. Richard G. Van Buskirk (ph) took over him. And at no time was any defense raised except that of truth. They did file an application for a new trial, a motion for truth -- new trial just arguing that it was contrary to the law in evidence then by way of brief, the New York Times case was argued. I object to the fifth time that Mr. Thompson was not a public official because under the further elaboration in the Rosenblatt case he did not fall in that definition.
Thurgood Marshall: But the trial judge did rule specifically on the New York Times point?
Robert L. Kleinpeter: The trial judge had a New York Times decision completely in front of him Your Honor.
Thurgood Marshall: And he mentioned it?
Robert L. Kleinpeter: He mentioned it name, yes sir and he concluded --
William J. Brennan, Jr.: Well, do you see any issue for us to decide in light of what your Supreme Court has said?
Robert L. Kleinpeter: No sir, I don't --
William J. Brennan, Jr.: Is there anything for us to decide but whether this evidence is sufficient to satisfy the New York Times test go about --
Robert L. Kleinpeter: Yes sir, I think you should decide (Voice Overlap) Mr. Justice Brennan.
William J. Brennan, Jr.: There is something more than that?
Robert L. Kleinpeter: Yes sir.
William J. Brennan, Jr.: Yes.
Robert L. Kleinpeter: Well, I have never conceded and I do not concede now that this man was a public official.
William J. Brennan, Jr.: Oh, I see.
Robert L. Kleinpeter: He was not one of those individuals --
William J. Brennan, Jr.: I see.
Robert L. Kleinpeter: -- so related in the hierarchy of government that they had a particular interest and yes, he was just (Voice Overlap) --
William J. Brennan, Jr.: In other words, that's also a federal question that on the facts we might review?
Robert L. Kleinpeter: Yes sir.
William J. Brennan, Jr.: I see.
Robert L. Kleinpeter: I have never concede although now in the trial court they found that he was a public official based on state statutes.
Byron R. White: And -- but in your -- but your Supreme Court said he was a public official for the New York Times purposes.
Robert L. Kleinpeter: Yes sir, I'll only let you know why the Supreme Court said it does so.
Byron R. White: Yes, I know, I know, I read it. Now, what --
Robert L. Kleinpeter: They just said that he was a deputy who would take the place of the sheriff --
Byron R. White: That is the (Voice Overlap) --
Robert L. Kleinpeter: -- and he was going (Voice Overlap) --
Byron R. White: -- what would you think the sheriff -- would you think the sheriff would be a public official?
Robert L. Kleinpeter: Oh, I don't think there would be any. He was an elected official. He was certainly one that ever one had a particular interest (Voice Overlap) --
Byron R. White: The sheriff?
Robert L. Kleinpeter: Yes sir.
Byron R. White: And the -- and your court said, well the deputy sheriff is -- when a sheriff isn't around he's a sheriff.
Robert L. Kleinpeter: Well, that's a big assumption because he was just a captain, sir. By that reasoning, you could say that everybody that places a (Voice Overlap) --
Byron R. White: Everybody on the force was a deputy, was everyone on the sheriff's staff called a deputy?
Robert L. Kleinpeter: Yes sir, everyone's a deputy. Now, this man was a captain in charged of the uniform division. It's broken down, they have captains, majors, lieutenant colonels and then the sheriff. This is not in the record but he was a captain in charge of the uniform record and I -- division on (Inaudible) that in my petition.
Hugo L. Black: He was a captain of what?
Robert L. Kleinpeter: He was a captain on the -- he held the rank of captain in the sheriff's office for the past East Baton Rouge in charged of the uniform division. The uniform division was --
Hugo L. Black: Do you say he is not an official?
Robert L. Kleinpeter: Sir?
Hugo L. Black: You say he's not an official?
Robert L. Kleinpeter: I personally say he is not a public official no sir because he -- no one has any particular interest in his, he doesn't deal with money --
Hugo L. Black: Although, talking about what he deals with, he's a deputy sheriff.
Robert L. Kleinpeter: He could be an officer, a public officer, yes sir but he such an officer that the public has such an interest in his particular job it would make him a public official within the Rosenblatt and the Times case. I think he comes closer to your reasoning in the Butts case, Curtis versus Butts where you rejected that idea. They tried to inject that because of Mr. Butts' low situation and position with the college and so forth that he was a public official then you went on to determine whether he was a public man.
William J. Brennan, Jr.: Well, isn't a captain of the uniform police at least a public man.
Robert L. Kleinpeter: I guess he's a public man just like a lawyer would be sir.
William J. Brennan, Jr.: Well, if he is didn't in the Butts cases, didn't we apply the New York Times test to the public man as well as to the public official?
Robert L. Kleinpeter: You applied it in the public man, to Butts but you upheld the -- affirmed the decision --
William J. Brennan, Jr.: I know but the --
Robert L. Kleinpeter: -- of the Fifth Circuit and then associate it. Now, let me tell you something, our Supreme Court has from the very beginning, I wrote a very exhausted brief in the Supreme Court. I covered all the Louisiana law, I covered all the federal law and I attached as an appendix to my brief, a reason article entitled "Liable in Public Men" written by Mr. William O. Burtons (ph) of the Kentucky Bar. Our Supreme Court reasonably reversed another case involving General Walker based upon the fact, I mean they followed the decision. They said he's a public man and therefore following the latest decisions here with General Walker. They reversed the Court of Appeal and threw his suit our. Our Supreme Court has it all the time. Now, our Court of Appeals in reversing our trial judge held that the -- they were smarten from this Court's decision in the Garrison case to be very frankly. And they held that -- says it would certainly follow that if the statement made by the District attorney of Orleans parish and quoted in the Garrison case to the effect that both the judges have now made it eloquently clear where their sympathies lie in regard to aggressive vice investigation by refusing authorized used of the DA's funds to pay for the cost of closing down the (Inaudible) is not libelous under New York Times rule perhaps is the application of the civil rule of libelous announced by the Supreme Court in that case to criminal libel in Louisiana court, then certainly the statements made by the defendant Mr. St. Amant in the present case would not be libelous under that rule or how they went on to say that he engaged in the mud-slinging of the worst type and these actions were extremely defamatory to this man. Now, the trial judge in finding that malice actually just -- it didn't equate ignorance with knowledge as counsel for Mr. St. Amant says. What the trial judge said, he went into it very detail and he asked Mr. St. Amant personally. Did you know Mr. Thompson. No sir, I didn't know Mr. Thompson. Why did you make the statements? Well, it was a matter which I had a lot of great concern." Secondly, and I asked him, Did you just make the statement and then let him -- let the public hear him and let them draw what inferences as they wanted to." He said, Yes sir. In other words, you didn't care about Mr. Thompson. Oh, he says, No sir. He's the farthest thing from my mind. And he just went on and libeled this man who had a tremendous reputation, he was a graduate of FBI National Academy, the Academy at (Inaudible). He's attended all kind of law enforcement agencies or institutes and in complete disregard of whether he was a second --
Thurgood Marshall: But he wasn't a public official?
Robert L. Kleinpeter: I say personally, may it please Your Honor.
Thurgood Marshall: What would be your criteria that you would urge upon us?
Robert L. Kleinpeter: My criteria sir would be this that if this man occupied a position that he is a public employee or public officer and that his position was such that the public as you said in Rosenblatt case have such a particular interest. In other words, like in Rosenblatt, this man was in charged of running a resort and handling funds and things like this. Captain Thompson true was a public officer and the people had an interest in him as a sheriff but not a particular interest above that they would have for all deputy sheriffs.
Thurgood Marshall: And all the sheriffs?
Robert L. Kleinpeter: And all the sheriffs. Well, no sir. I think if you had an elected official I don't think there'd be any question about it.
Thurgood Marshall: Well, aren't these an appointed official that are more important in some elected officials?
Robert L. Kleinpeter: Yes sir.
Thurgood Marshall: So you can use that as a criteria, can you?
Robert L. Kleinpeter: I can turn on that, yes sir.
Thurgood Marshall: So you don't think anybody in the sheriff's office could be a public official except a sheriff? You surely don't mean that.
Robert L. Kleinpeter: Well, I don't mean that, no sir. There are those who are higher in rank and who is -- when the sheriff is gone like a lieutenant colonel --
Thurgood Marshall: Would you make it major?
Robert L. Kleinpeter: Who have -- they have majors, lieutenant colonels, they have a sheriff --
Thurgood Marshall: Why would you draw a line?
Robert L. Kleinpeter: Mr. Justice Marshall, I just have to tell you I don't know. I've read all the cases. I've tried to say it of course I have a --
Thurgood Marshall: Because (Voice Overlap) --
Robert L. Kleinpeter: -- I have deep personal interest in this. This man is a close friend, a (Inaudible) buddy, a neighbor, a drinking buddy and everything else. And I just never considered him a public official, yes sir.
Thurgood Marshall: A very good answer. But let me tell you this too and I pointed it out in my short brief and the Court commented on this in your latest Curtis versus Butts case that this man occupied a position where he could not rebut anything, Mr. St Amant said. Here's a man on state wide television taking out after Senator Long and just answered that alleging, defaming a few others. But here's a man who's a captain on the sheriff's force, how is he going to buy equal time where he'd be heard equally. Would his voice be as strong? And you commented on this in the Curtis case. And I say it differentiates all together that if something else besides with what's a malice, I don't think there's any question with the trial judge who watched this man on the stand, saw his demeanor, the manner in which he testified was amply correct and the fact that this man had a complete utter disregard of Captain Thompson's reputation of how it affected him all together. And I submit that the trial judge was correct on finding malice and I submit that all three courts were wrong in holding a public official made them for personal reasons. I cannot say where it fits in. The New York Times, Rosenblatt, Curtis, Walker case but I submit that they were -- that the case has been -- the rules have been considered, they have been applied and the facts have been amply considered and malice found. Thank you.
Russell J. Schonekas: I don't see any need for rebuttal. I think, Justice Brennan (Inaudible) one simple problem, it's been decided previously just applying to this case.
Earl Warren: I see. Case is adjourned.


Alfred E. Lindbloom: May it please the Court. This is an appeal (inaudible) Court of Michigan. The Supreme Court of Michigan affirmed the decree of the trial court which held that the Detroit's smoke ordinance which in effect provided for the inspection and -- and approval of boilers on -- on appellant's vessels engaged in interstate commerce and which had been approved, inspected and proved and licensed by the Federal Government to navigate was applicable to -- to those vessels. And also that the penalty provision of the smoke ordinance which could not be complied with, with the boilers which had been approved, inspected and licensed by the Federal Government. The appellant claims that the Federal Government by its boiler or by its inspection laws had preempted the field and that therefore the city ordinance could not validly be applied to the vessels. It also claimed that the equipment on vessels engaged in interstate commerce required uniform treatment. And that the ordinance which also provided for inspection and approval of the same equipment and require a -- required necessary treatment and that -- and it was an undue burden upon interstate commerce. The facts are that this appellant has a mill in Alpena, Michigan and has a fleet of six vessels which -- with which it transports cement from its mill in Alpena to various ports on the Great Lakes. Five of these vessels are steam vessels and they're equipped with hand-fired Scotch marine boilers. And --
Felix Frankfurter: It's necessary to understand your case, to understand what -- what a marine Scotch boiler is because it's sold and you'd better explain that these -- one ignoramus to understand.
Alfred E. Lindbloom: I don't think it is, Your Honor. If it is, it's merely a boiler in which you put in the fuel and the fuel heats tubes that runs over the fuel.
Charles E. Whittaker: Well, this hand -- hand-fired Scotch marine has more smoke, that is emphasized.
Alfred E. Lindbloom: That's right. The -- the hand-fired Scotch marine boiler is the grand dad of the boilers used on the vessels and it -- it as, Your Honor -- as Your Honor said it does admit more smoke. But these vessels are inspected annually at the time and bi-annually now by the United States Coast Guard. There, the vessels are inspected and the (inaudible) is inspected. And after this --
Felix Frankfurter: But it's just -- do they -- do the statutes or regulations specifically call for inspection of boilers?
Alfred E. Lindbloom: Yes. Yes, Your Honor.
Felix Frankfurter: Specifically.
Alfred E. Lindbloom: Yes.
Charles E. Whittaker: Well, is that the -- the only authority for safety on stevedoring purposes or is it also for air pollution.
Alfred E. Lindbloom: Well, sir, I can't point to anything in the statute that says air pollution. No. But the statute says that if the broiler is for any reason unsafe, it should not be approved. The approval says it shall be -- it shall be approved only of it's safe and in whole in part or if it's because of defective design or defective workmanship, defect of material or for any other reason is unsafe, then the boiler should be and must be (Inaudible) that purpose.
Felix Frankfurter: And I take that you will argue that unsafe is not restricted to safety for purposes of functioning as a boiler.
Alfred E. Lindbloom: That is part of my argument. But my argument is more than that because I -- after the Federal Government has inspected these boilers, found them safe for whatever purpose the statute requires, it issues a certificate, which certificate also contains a license. And that -- that license is, the said vessel is permitted to be navigated for one year on the Great Lakes. Now, that is the license which is included in the certificate of inspection. Then there's also another certificate which the Treasury Department issues and that at the bottom of it. That is -- that and the photostat of that is contained in the transcript for the record following page 42. There at the bottom of that, there's a license. “License is hereby granted for the said vessel to be employed in carrying on the coasting and foreign trade for one year from the date hereof but no longer.” It is our -- It is my primary contention that by those two licenses, the Federal Government has specifically said that this vessel bearing in mind that the first license describes the vessel, describes the boiler and it has inspected the boilers, says that this vessel maybe used to navigate the Great Lakes for one year.
Charles E. Whittaker: May I ask you, Mr. Lindbloom, if Michigan might say at one of these vessels as it passed through the Detroit River should not exceed five knots per hour. Would that be in light of these licenses, these federal licenses beyond the state power?
Alfred E. Lindbloom: I would doubt if it were. But there you see, there, the -- the vessel could be controlled by that speed. The point I'm getting to here is that this smoke ordinance cannot be complied with, with the equipment that has been approved and licensed.If -- if in Your Honor's question, these vessels could not go unless -- it could not go at a speed of -- of as little as five knots an hour then I would say that -- that the Detroit could -- but under the question, they could comply with the -- with the ordinance, and here, they can't.
Speaker: How old is this federal statute?
Alfred E. Lindbloom: Oh, I think it goes back for many, many years probably the 1870 and through there. I'm picking -- figure out the year but it is old.
Speaker: Long before the State of Morgans?
Alfred E. Lindbloom: Oh, yes. Yes.
Hugo L. Black: I didn't -- I didn't quite understand the last statements you made when you said --
Felix Frankfurter: He doesn't argue.
Hugo L. Black: And did I understand you to say that they cannot comply with the ordinance?
Alfred E. Lindbloom: They cannot.
Hugo L. Black: It -- it's impossible to comply with the ordinance.
Alfred E. Lindbloom: Is -- yes. That's a finding of the -- of the -- that was admitted in the trial and it's -- it's a finding in the -- of this.
Felix Frankfurter: You mean with this, “and use this boiler.”
Alfred E. Lindbloom: Use this boiler.
Hugo L. Black: Well, I --
Alfred E. Lindbloom: Yes.
Hugo L. Black: I thought you -- but now I understand that you're qualifying it that way.
Alfred E. Lindbloom: Oh I -- that's right. It can't --
Hugo L. Black: Well, I'm not assuming that it's impossible to --
Alfred E. Lindbloom: Oh no. No, no.
Charles E. Whittaker: Well --
Alfred E. Lindbloom: We -- we could put in -- we could put in other -- we could put in another boiler or we could put in an underfeed stoker at a cost of $70,000 or $80,000 and -- or we could put in oil -- oil burning equipment at a $100,000 withheld which -- with which we could probably comply with the present Detroit's --
Hugo L. Black: It's a question of cost.
Alfred E. Lindbloom: It's a question of cost to begin with. But I think there's more than that because I think there is this question of preemption.
Hugo L. Black: Well, I'm simply --
Alfred E. Lindbloom: Yes.
Hugo L. Black: -- do you think because that it's affected by preemption. As in effect, preemption.
Alfred E. Lindbloom: Yes. The -- the -- it seems to me that Congress by -- by passing or by issuing these licenses has expressly said that this particular vessel may be used. And because -- now to go for a minute --
Hugo L. Black: Is there anything in the record which shows it specifically and expressly that the Government agreed that vessels which would emit this kind of smoke could be utilized despite the city ordinance?
Alfred E. Lindbloom: Well, if you mean by that, I'm not quite sure I understand. If you mean by that that the Federal Government expressly say that ignoring or taking --
Hugo L. Black: Yes.
Alfred E. Lindbloom: -- a consideration of the Detroit ordinance?
Hugo L. Black: Yes.
Alfred E. Lindbloom: No. I mean -- I mean, there's nothing -- there's nothing in the record.
Hugo L. Black: Does it have -- does it -- does a federal Government regulation have any provisions as to smoke control at all?
Alfred E. Lindbloom: Not expressly, none. None expect what I argued a moment ago that -- where they said that the boiler is unsafe for any reason.
Hugo L. Black: Yes, that's the closest you come to any federal regulation.
Alfred E. Lindbloom: Yes, Your Honor.
Earl Warren: Is there anything in the -- in the inspection service of the Coast Guard to -- to indicate that -- that the Government has any standards or -- or is interested in how much smoke these boilers emit?
Alfred E. Lindbloom: I think to answer that candidly, I have to say there isn't anything. And this -- the Detroit smoke ordinance, first -- first, requires an inspection of any equipment that's used within the city and -- and it -- then it also provides that if a boiler emits smoke three times of the prohibited time within any 12 months period, the equipment shall be sealed and the seal shall -- shall stand unless the sea Commissioner finds that there's an improvement in the equipment.
Hugo L. Black: Have they tried to do that here?
Alfred E. Lindbloom: No, not yet.
Hugo L. Black: We don't -- we don't have an actual effort to do that under the ordinance. We don't yet because as I tried to explain in my reply brief, the -- there was a difference of opinion of the Attorney General in Michigan and as soon as -- soon as the city started to -- to enforce the -- the penalty provision, we got the injunction and -- but we allege in our bill of complaint that the city has threatened to enforce the ordinance against us.
Earl Warren: Is that the only sanction with the ordinance?
Alfred E. Lindbloom: Well, it can --
Earl Warren: To prevent the -- to prevent the -- the -- to tie the ship up? Is that the only sanction in the ordinance?
Alfred E. Lindbloom: No, no. We could --
Earl Warren: What are the other sanctions?
Alfred E. Lindbloom: That it -- its criminal, $100 fine and for -- not only the company but also the -- the officers on the boats one -- and a $100 fine, 30 days in jail or both and each day's violation is a new -- is a new penalty.
Earl Warren: You attack the whole ordinance, the entire ordinance before they have applied any sanction to the company.
Alfred E. Lindbloom: Except the criminal. They started the criminal proceedings.
Earl Warren: Yes.
Alfred E. Lindbloom: And that, they started the criminal proceedings, they issued a warrant or a ticket as they call them, against the company and against the officers of the vessel.
Earl Warren: Yes.
Alfred E. Lindbloom: And at that point, we filed the bill.
Earl Warren: Yes.
Alfred E. Lindbloom: And we allege in there that they're going to enforce the ordinance against us, and the city says in effect, they're going to force all, it's legally applicable. So I think there's a fair inference that they will enforce the -- enforce the whole thing which it requires the inspection and also a sealing if you violate the ordinance criminally three times within the 12 months period.
Earl Warren: Do you -- has it been violated twice before and so found criminally?
Alfred E. Lindbloom: No this was the -- this (Voice Overlap) first --
Earl Warren: Yes. Well then, in this -- in this action, they couldn't impose the final sanction of -- of tying that to your ship, could they?
Alfred E. Lindbloom: They couldn't but I mean I don't think there's any doubt that you would violate it more than three times within a year because as I say, the -- the smoke of the prohibited kind cannot be prevented with this -- with these boilers. Our problem is that we -- we dock at Detroit. It shows one of these vessels docked 26 times, we'll say the other one 22 times in a year. And they're there for about 16 hours to two -- to a full day each time. And every four hours, they have to rebuild the fire. At that time there's smoke of the prohibited kind is apt to -- to come forth. And on -- in fact, on the day in question, they were charged, each ship, with violating the smoke ordinance for -- from between nine and 10 minutes. And --
Potter Stewart: Is that when -- is that when their growing tubes as it's called or --
Alfred E. Lindbloom: Building a new fire, Your Honor.
Potter Stewart: Is this a fire tube or water tube kind of boiler?
Alfred E. Lindbloom: That I am not sure, I think it's what you call a fire tube. But I'm not wholly positive.
Charles E. Whittaker: May I ask you, sir? Do we have here any question of territorial jurisdictions? In other words is Lake Erie within the city limits of Detroit?
Alfred E. Lindbloom: Well, the Detroit River, yes, which is a connecting river.
Charles E. Whittaker: And that's where you offend the claim, is that it?
Alfred E. Lindbloom: Yes we're tied -- we -- we -- these particular offenses that we're charged with occurred when we were tied up at a dock in the Detroit River. And the Detroit -- the City of Detroit jurisdiction extends to the middle of the river. But all boats using -- engaged in the Great Lakes, going from one lake to the other must -- must use the Detroit River. And there's apparently about 250 vessels on the Great Lakes are in the same predicament. That is they're equipped with hand-fired Scotch marine boilers. And as I -- I don't think that the trial court and the Michigan Supreme Court merely held that there -- there was no preemption. Both of them paid no attention to the argument concerning the licensing. It seems to me that under Gibbons versus Ogden where a license is granted, no one else can say that this license can be used only on certain conditions.
Felix Frankfurter: May I ask you this question. Do the -- do the examinations both by the Coast Guard and by the Bureau of Customs, they make separate examinations?
Alfred E. Lindbloom: I'm not too sure that the Bureau -- that the Custom makes much of an -- the Custom issues that only if the Coast Guard has already inspected.
Felix Frankfurter: Now, does the Coast Guard inspect locally then it inspect -- it inspects --
Alfred E. Lindbloom: Yes.
Felix Frankfurter: -- either in Detroit or wherever your boat --
Alfred E. Lindbloom: I think they do or -- or we go somewhere where they ask us to.
Felix Frankfurter: But It's a -- it's a physical inspection --
Alfred E. Lindbloom: Oh, yes.
Felix Frankfurter: -- and not a -- and not passing on -- on a written application?
Alfred E. Lindbloom: No, Your Honor, they -- it's a physical examination. As matter of fact they sometime tear down the boilers. Periodically, you got to tear down the boilers, you go to operate them when they're standing there watching you.
Felix Frankfurter: Is there a Coast Guard division of whatever it's called, is there a-- Coast Guard stationed in Detroit or in the Detroit River?
Alfred E. Lindbloom: I -- yes. I think this --
Felix Frankfurter: Did the local people examine this?
Alfred E. Lindbloom: They're -- they're local employees of the -- yes, on the -- on page 41 of the transcript or I mean the record.There, the Commander, Mr. Hansen, Commander of the United States Coast Guard is -- is stationed at Detroit, Michigan. And I think in there, it shows that the boiler, the mountings have been removed at certain times and different themes like that. Now, it's a -- it's a good faith and a very careful examination.
Felix Frankfurter: Well, I'm sure to -- I assume it's in good faith.
Alfred E. Lindbloom: Yes.
Felix Frankfurter: What I want to know is --
Alfred E. Lindbloom: No, I mean it's more than a -- than writ.
Felix Frankfurter: Because somebody who lives in Detroit, knows about Detroit ordinances, doesn't he?
Alfred E. Lindbloom: I would assume so.
Earl Warren: Does the Customs Service certificate have anything to do with safety?
Alfred E. Lindbloom: I don't think so. I mean I think --
Earl Warren: Then how is it pertinent here?
Alfred E. Lindbloom: Well, it's pertinent in this respect that it is a license. That's --
Earl Warren: A license to do what?
Alfred E. Lindbloom: A license -- license is hereby granted for the said vessel, it's naming -- it names a vessel up above to be employed in carrying on the coasting and foreign trade for one year from the date hereon but no longer.
Earl Warren: Yes. But isn't that only so far as the -- the Customs laws are concerned? Isn't that all it's concerned with?
Alfred E. Lindbloom: No. I think not, Your Honor, because under a statute, that license does not issue until the Coast Guard has completed their license and approved the vessel.
Earl Warren: But if the Coast Guard didn't -- didn't certify it, it couldn't? It couldn't travel at all?
Alfred E. Lindbloom: That's right. Nor would the (Voice Overlap) --
Earl Warren: So with the second. So there'd be no necessity of the Customs Service bothering about Customs on the ship if it couldn't -- if it couldn't under the Coast Guard certificate use the coastline, isn't that right?
Alfred E. Lindbloom: That's right. I mean --
Earl Warren: And --
Alfred E. Lindbloom: -- they're both, it's -- it's just two licenses.
Earl Warren: Yes. But the second one means nothing in this case does it?
Alfred E. Lindbloom: Well --
Earl Warren: Because it doesn't deal -- it doesn't deal with anything but Customs.
Alfred E. Lindbloom: No. I think it does more than that.
Earl Warren: What does it deal with? What --
Alfred E. Lindbloom: It deal -- it deals with safety in this respect that -- but it delegates the safety function to the United States Coast Guard.
Earl Warren: Well, does the Customs Service have anything to do with safety?
Alfred E. Lindbloom: No.
Earl Warren: Then why do you say it depends upon the safety?
Alfred E. Lindbloom: Well --
Earl Warren: (Voice Overlap) that the -- that the Coast Guard certifies to?
Alfred E. Lindbloom: No, because under the statutes, you cannot -- the Coast -- the -- the Custom cannot issue that certificate until after the vessel has been approved --
Earl Warren: Yes.
Alfred E. Lindbloom: -- by the Coast Guard. (Voice Overlap) -- That's the only connection.
Earl Warren: I suppose that Customs Service is -- is interested in the operation of the vessel from the standpoint of -- of the Customs.
Alfred E. Lindbloom: I would assume that is right.
Earl Warren: And -- and I would assume nothing else unless there's something in the Act to -- to indicate something else.
Alfred E. Lindbloom: Well --
Earl Warren: But if -- if it cannot -- if it doesn't have the certificate of the Coast Guard and can't operate at all, then of course there's no -- there's no reason why the -- the Customs Service should -- should grant a certificate and isn't that the only reason that they require first a certificate of the Coast Guard?
Alfred E. Lindbloom: Well, that I -- I mean that maybe so, Your Honor. I mean all I know is the statute says --
Earl Warren: Well --
Alfred E. Lindbloom: “And it shall not issue unless and until the Coast Guard issues a certificate.”
Earl Warren: But my point is this, if you are going to the question of preemption.
Alfred E. Lindbloom: The other one is --
Earl Warren: And use -- and using the second -- the second certificate as an argument that the Government has preempted it. I suppose that the purpose of the certificate would have -- have something to -- to do with determining whether there was preemption so far as the emission of the smoke is concerned.
Alfred E. Lindbloom: I would -- I would assume that but I think it seems to me it goes -- might go a little bit further. If the Federal Government gives a license that -- leaving out -- leaving out the -- the preemption that the Federal Government gives a license to use this vessel on navigable water can the city come along and say, "Well, you can use it only on our terms."
Earl Warren: Well, let's suppose this, that instead of this being a vessel, it was -- it's one of these big diesel trucks that goes along a -- an interstate highway and is authorized by the Interstate Commerce Commission to -- to go through the cities and it goes through the cities emitting just as much of that black smoke as it wants to emit without -- without any power in the cities to -- to restrain it?
Alfred E. Lindbloom: That I don't know. As practical matter, it does [Laughs] but I mean they couldn't --
Earl Warren: Isn't the fact of the matter, the cities do, don't they?
Alfred E. Lindbloom: I don't know. I mean I -- I would think that would be a little different, Your Honor for the -- for one reason if no other and that is that this Court has granted much greater control in respect to highways than you have to -- to sea water. It seems to me that -- that our case is much closer to your -- to your Service Storage and Transfer versus Virginia which was just decided a short time ago. Or that company had a -- a certificate from the ICC and there, Virginia found that it picked up goods and delivered goods in -- in Virginia through a point in West Virginia and -- and was found that that was a fraud and it was violating the Intrastate Carrier Act and fined it for $3500. This Court said to -- to allow that fine to stand would be the same thing as a partial, a cancellation of the federal placements of the certificate.
Earl Warren: Well, suppose the issue we have here in that case was not the one we did have but suppose that the trains, they're running their trains 75 miles an hour through a -- through a thickly populated district, do you think the city would be prevented from -- from regulating the speed of that to conform to the safety of the public?
Alfred E. Lindbloom: No. But like (Voice Overlap) --
Earl Warren: I said --
Alfred E. Lindbloom: I think, I think --
Earl Warren: Did have, more like what we've got here?
Alfred E. Lindbloom: No, no because -- because as I said, our vessels can with the equipment as approved in the license cannot at all times comply with the ordinance. If -- you see, what I meant was, in my original bill, I asked that this -- that the city be enjoined except where the smoke was caused by our negligence or the improper use of the equipment. I'm -- I'm claiming it only where this -- only where this -- offense of smoke cannot be prohibited, cannot be prevented with -- or with the equipment which we do have.
Felix Frankfurter: In short of the -- short of it -- short of your case is, isn't it? You've got a license to use a vessel with a particular equipment, if you have to supply -- if you have to obey the ordinance of Detroit, you couldn't use your vessel with the equipment. You say you got a license from Uncle Sam to use that equipment and that license is controlling. And therefore, the question is whether impliedly, there is power in the State and this is what it gets down to, to make regulation which, in and of itself is enough -- is a -- a regulation that the State may make for itself in welfare. That's the problem, isn't it?
Alfred E. Lindbloom: Yes. It's -- it's -- the problem is whether or not -- whether or the State -- the city's regulation may -- may limit the federal license. I mean and -- and I'm also using the federal license as -- as indicating preemption of the field.
Felix Frankfurter: Also, we first have to determine if the federal license really license you to do.
Alfred E. Lindbloom: That's right.
Felix Frankfurter: Whether it says you may use this vessel.
Alfred E. Lindbloom: Yes.
Felix Frankfurter: We, the United States having superior power to say, “Go ahead and use this vessel no matter what anybody says about it because we're the boss.”
Alfred E. Lindbloom: That's right.
Felix Frankfurter: And the other suggestion is that their implications to that -- that license. May I ask you -- I do have a curiosity of what the Chief Justice said about the second license, the Customs. I take it -- am -- am I right in inferring if it is the Coast Guard, even though the calling pass must of the Coast Guard when they issued your license. The Bureau of Customs doesn't automatically have to give you its license, is that right?
Alfred E. Lindbloom: That's probably. I think that's right.
Felix Frankfurter: Now, what help is the Customs charged with? In the first place, you can't use your vessel if you're not a -- with this Coast Guard's traffic, isn't it? Under the Coast Guard's traffic law.
Alfred E. Lindbloom: Yes.
Felix Frankfurter: Therefore, it's only -- it's confined to American citizens. I suppose the coast -- Customs are concerned with that --
Alfred E. Lindbloom: That's correct.
Felix Frankfurter: Are they not?
Alfred E. Lindbloom: Yes.
Felix Frankfurter: It has to ascertain that. Do they get any revenue? Do -- do you pay by tonnage or whatnot for getting this license?
Alfred E. Lindbloom: I would think not, Your Honor, because we just hold for ourselves.
Earl Warren: We'll recess now, Mr. --