Earl Warren: Number 150, the Associated Press, Petitioner, versus Edwin A. Walker. Mr. Rogers?
William P. Rogers: Mr. Chief Justice, may it please the Court. This is a libel action in which General Edwin Walker has recovered a judgment of $500,000 against the Associated Press for general damages. There was no claim made nor there was any evidence offered that he suffered any actual damages. In addition to the $500,000 general damage as reward, the jury awarded $300,000 in punitive damages. The trial court set aside this award on the ground that there was no malice. The suit is based on news reports concerning Walker's activities in Oxford, Mississippi during the night of September 30, 1962, a night when violence and bloodshed climaxed in attempt by James Meredith, a Negro to enroll as a student at the University of Mississippi. The Court of Appeals for the Fifth Circuit had ordered the admission of Mr. Meredith to the then all-white university. But some of the highest elected officials in the State had asked that they would defy the order of the federal court and prevent Mr. Meredith's admission. The Associated Press reported the events which followed. The statements complained of in this case were contained in two news dispatches dated October 2nd and 3rd which originated with a local Associated Press reporter, who was on the campus at the time of the rioting and witnessed the events which he reported. Those statements were: One, that General Walker assumed command of the crowd; and two, that he led a charge of students against the federal marshals who were there to see that the order of the Circuit Court was carried out. A basic constitutional issue raised by this appeal before the document of New York Times against Sullivan is to be confined solely to public officials or whether it should be extended to persons like General Walker, who though not technically public officials, are public figures or persons of political prominence who have thrust themselves in the vortex of a question of pressing public concern.
Speaker: Is this case been already tried before us -- before or after the term?
William P. Rogers: After.
Speaker: After and what are the issues?
William P. Rogers: The issue is presented squarely on this appeal. The issue before the New York Times to be extended because all three Texas courts, the trial court and the appellate courts quite properly found that the statements were published without any malice as defined in the New York Times case. Under the First and Fourteenth Amendments of the Constitution, the Associated Press also claims that the news reports were substantially true and therefore the judgment represents an unconstitutional denial of due process. That an award of $500,000 in general damages is unconstitutionally oppressive and that the defense of “fair comment” as applied in this case has been unconstitutionally limited. This case, I believe, represents one of the most serious attacks ever made on the press in this country. It is but one of the 50 libel cases brought by General Walker against the Associated Press, its members or both, arising out of news reports identical or almost identical with the one involved in this litigation.
William O. Douglas: Is there a conflict as to what actually happened?
William P. Rogers: Well, I don't think so. I suppose counsel will. The General has made claims -- I'll come to the conflict of testimony in just a moment, Your Honor. The General has made claims against a significant portion of the press asking for damages totaling more than $33 million.
Hugo L. Black: Has he won all of those suits?
William P. Rogers: He's won the two that had been tried. Now, the technique that he uses is very simple and effective. He is attempting to convert the libel laws of this country and the weapons of intimidation, harassment, and punishment. And it is only fair to say that up to now he's been very successful. What gave rise to the Associated Press' dispatch a theory? This Court will recall the many months of legal proceedings involving the admission of James Meredith to the University of Mississippi. When he had finally arrived at the university to register on September 30th, as called for by the order of the Court, this Circuit. He was accompanied by federal marshals, who were there to see that the order was complied with. That evening, when the word got around that Meredith was in the campus, there occurred what General Walker has seemed fit to label a protest. It consisted of a series of violent attacks on the marshals, federal marshals with rocks, sticks, bricks, bulldozers, fire engines, and Molotov cocktails. One deputy marshal had a leg broken. One was hit in the head. One deputy marshal was shot in the back. The rioting left two persons dead and more than 50 injured. It was a protest which brought the United States into this refute all over the world. It was under this scene that General Walker appeared. It was into this vortex that he thrusts himself. The General did not come to the scene unheralded. He made sure of that. Over a period of several days with a maximum of fanfare, he announced his plans in a series of telecasts, radio broadcasts, and press conferences as he made his way to Oxford. For example at Shreveport, Louisiana on September 26th in a radio broadcast. Here's what he said, “Rise to a stand beside Governor Ross Barnett of Jackson, Mississippi. Now is the time to be heard, 10,000 strong from every state in the union, rally to the cause of freedom, the battle cry of the Republic. Barnett, Yes. Castro, No. Bring your flag, your tents and your skillets. It is the time, now or never. The time is when and if the President of the United States commits or uses any troops federal or state in Mississippi. The last time in such a situation, in 1957 and 1958 at Little Rock, I was on the wrong side. This time I will be on the right side. I will be there”. On another day, a day or two, another occasion a day or two before the riots, when he was asked if he recommended that the volunteers go armed, General Walker said, and I quote, “The administration has indicated it will do whatever is necessary to enforce its unconstitutional action. I have stated that whatever is necessary to oppose that enforcement and stand behind Governor Barnett, should be done”. On the eve of the riots, Walker held a press conference at Oxford and announced that Governor Barnett, who by this time has been held in contempt by the Fifth Circuit, was being supported by thousands of people beyond the borders of Mississippi, now on their way to join him at Oxford. On September 30th, when President Kennedy, in a national television broadcast, appealed for preservation of law and order, General Walker publicly said, “Nauseating, nauseating”. The evidence is clear --
Potter Stewart: Mr. Rogers, at the time he made the statements you're talking about, was he a member of the -- does he still hold --
William P. Rogers: No, he did not, Your Honor. He was --
Potter Stewart: When did he resign?
William P. Rogers: Well, it was a year or two before -- I'm not sure of the date, a couple of years before that.
Potter Stewart: He had been a candidate for political office in Texas at that time?
William P. Rogers: Yes, he did. The evidence is clear and admitted that Walker thrust himself into the middle of this highly charged public controversy. Not only did he, in the words of this Court in Rosenblatt, thrust himself into the vortex of the controversy, but he played a major role in creating the controversy and in giving leadership to those who sought to obstruct the order of the federal court. Now, the General has denies it. He would have this Court believe, notwithstanding all the broadcast, press conferences, which are a matter of record that he went to the campus as an observer or as a spectator. Or as he said in his testimony, “Just to see for myself exactly what happened”. Of course, this is an outrageous and offensive lie. It is perfectly obvious, based on his own words that he did not go to the scene as a spectator, or an observer? He went there as a participant as an active collaborator. Walker went to the campus at Oxford for the stated purpose, in his own words, of preventing the order of the federal court from being carried out, as he said, “to be on the right side, this time”. He was willing and anxious to do what he could to help that cause of in a position as he clearly demonstrates. In fact on the record -- in the record, he admits that he asked the sheriff to be deputized so he could help the Mississippi authorities. What were his activities when he arrived to the campus at Oxford? Well, he admits, he went to scene of the rioting at about 8:30, and remained there on the campus until about 2 a.m. He was hailed as the leader of the riots -- rioters. He delivered a speech to the rioters although, he claimed at the trial tried to calm the rioters. The fact is that his speech was inflammatory.
Hugo L. Black: May I ask you if all of this is a part of the facts that have been decided against by the jury?
William P. Rogers: Well -- yes, Your Honor.
Hugo L. Black: What is the purpose of the extensive statement of facts in connection to leading them?
William P. Rogers: Because I want to show Your Honor that he thrust himself into the vortex of this controversy deliberately, knowingly for the --
Hugo L. Black: Which he denied, you said.
William P. Rogers: Yes, but which is all a matter of record. I don't think -- I don't know that he doesn't deny any of the things I am saying. Now, I don't believe, Your Honor.
Hugo L. Black: Because you claim that the evidence is so undecided like the Thompson case unrevealed that a case should be reversed on the basis of wrongful finding of the jury?
William P. Rogers: Well, we do make the argument. There's been a violation of due process because the evidence clearly supports the Associated Press insofar as the truth is concerned. But more than that, we think that the basic constitutional question is whether the New York Times doctrine should be extended to cover people such as General Walker, who thrust themselves into the vortex of a highly involved and inflamed public controversy.
Hugo L. Black: That's a legal question, Mr. Rogers.
William P. Rogers: Yes, Your Honor. Plus the due process question. In other words, we say that the report made by the Associated Press was true and therefore, it was so true that it violates due process.
Hugo L. Black: You say -- but you say it was in dispute?
William P. Rogers: Yes, it was Your Honor.
Hugo L. Black: Well, I don't believe it. We'll be upheld by the time in disputing the evidence the decision one way or the other would violate due process, have you?
William P. Rogers: Well, I think there are some cases there. But as I said, I would like, Your Honor to --
William J. Brennan, Jr.: Well, Mr. Rogers tell me, did you -- did you asked that it be submitted to the jury this proposition as a matter of fact whether or not he had, as you put it, thrust himself into the middle of it?
William P. Rogers: No.
William J. Brennan, Jr.: And that account that you --
William P. Rogers: No. That -- that was not submitted to the jury, Your Honor.
William J. Brennan, Jr.: Well, what -- what --
William P. Rogers: Because in the -- the Texas courts did not hold that the New York Times rule extended to people like General Walker. They limited the New York Times to --
William J. Brennan, Jr.: But did you ask them? Did you ask them that there be a charge predicated on the application of the Times rule?
William P. Rogers: Yes, Your Honor.
William J. Brennan, Jr.: And that was refused?
William P. Rogers: Yes, Your Honor.
Abe Fortas: Do you have in the record in reference to your request for a charge on that?
William P. Rogers: No, I don't. We can get that --
Abe Fortas: Do you regard that as a question of fact or a question of law whether he was a public figure within the New York Times?
William P. Rogers: Well, we regard that as a question of law. The facts -- I think the facts on his activities and what he has done --
Abe Fortas: I understand that but the question is, do you think that issue whether a particular person in a particular setting is a public figure, is a question of fact to be determined by the jury? Unless you had thought that maybe it was or you wouldn't have asked for the instruction?
William P. Rogers: Well, I'm -- I'm not sure because I didn't try the case without a particular instruction was included or not. I will find out during the recess, Your Honor.
William O. Douglas: Well, if this case try to -- (Voice Overlap)
Abe Fortas: I wish you would also find, excuse me.
William P. Rogers: Yes.
Abe Fortas: I wish you'd also find out, Mr. Rogers, a connection whether there's any instruction -- I don't really remember that there was any instruction to the jury at all on the public figure?
William P. Rogers: No, I don't believe there was, Your Honor.
Abe Fortas: Is that -- is there any statement by the Court or any ruling by the Court as to why -- why not or what the trial court's view was?
William P. Rogers: Yes. I'm not sure that he made a statement during the trial. But the ruling of the Court was that the New York Time's case did not extend to anyone except public officials.
Abe Fortas: Well, that looks in effect a ruling by the trial court as a matter of law, I suppose --
William P. Rogers: That is correct.
Abe Fortas: -- that General Walker was not a public figure.
Potter Stewart: I don't -- on page 28 and 29 of your brief, Mr. Rogers, you quote the opinion of the trial court as set forth in the letter to counsel dated July 29, 1964 in which it seems to me the Court quite clearly accepts the proposition as a fact that General Walker was at the time -- on at the time this happened on September 1962 a public figure. Top of page 29 it says, “The evidence is undisputed that General Walker was a public figure at the time of the riot oldest campus.” And -- but after assuming that as a fact, he then held as you expressly said that, the New York Times rule didn't apply because he was not an elected political officer.
William P. Rogers: It's been there --
Abe Fortas: If you know --
William P. Rogers: -- Justice Stewart, in that same opinion you'll notice that the trial court said that the New York Times rule is extended to persons of political prominence such as Walker, then there is no case because it was clear that there was no malice in this case. So the issue is -- was for the New York Times rule was to be extended to persons of political prominence as directly for this Court in the clearest form.
Abe Fortas: What kind of thing is this given on page 29, is that a letter of counsel or it is fully indicate --
William P. Rogers: Yes, it's appellee in Texas -- it's a form of the decision of the Court which is a letter to counsel, although that was the way he rendered his opinion in -- the trial court rendered its opinion.
Abe Fortas: I see.
William J. Brennan, Jr.: Well, Mr. Rogers, what -- in relation to the date of the decision in time from Sullivan when was this case actually tried?
William P. Rogers: This was tried in June 1964.
William J. Brennan, Jr.: When is that -- what was the time, did you know?
William P. Rogers: It was -- It was just before that March ‘64.
William J. Brennan, Jr.: Well, in any event, it had been decided by the time this case went to the jury?
William P. Rogers: Yes, Your Honor.
William J. Brennan, Jr.: Thank you.
William P. Rogers: Your Honor as I was just concluding the point that there's no doubt about it that when General Walker got to the campus that night he was the central figure among the rioters because of what he has said before he arrived. Now, what was the basis for the charge for the Associated Press report that he led the charge of students against the marshals? Well, the trial court said, leading the charge means encouraging persons and the charge means movement towards the marshals. The evidence showed that on at least two occasions the general encouraged the crowd and moved towards the marshals. The marshals were in front of the administration building, surrounding the administration building, protecting that building because the crowd at that time I think thought Mr. Meredith was in the building. The rioters were on that what is called “the circle”, an area of about the size of two football fields next to the administration building, there's a flagpole in the middle, and in the other end on the east side it's the confederate monument. Now, at the confederate monument the General made his speech and on several -- and at least two occasions he moved in the direction of the administration building with people following him. I would like to just quote a couple of comments, one from Mr. John King, who was the manager of the local radio station. Who heard Walker say to the crowd, “You're doing fine. Riot! You're getting news all over the country. Now you've got casualties”. A clear description of what happened that night. I think it's important because this is the description given by one of Walker's own witnesses. A man named Mr. Whit, who was a deputy sheriff and who was on the campus at the time, and who was with Walker during the whole evening. And that two -- about two months after the events, he gave a statement to the lawyers of Associated Press, and in the statement he said these things and it was a signed statement by the deputy sheriff, “After some of the crowd, I'd asked Walker if he would lead them. He stepped out and sat at the monument and said, keep protesting and see if we could get closer”. And he then started toward the marshals and the crowd at least a thousand by this time followed him. This crowd was armed with sticks, rocks, Coca-Cola bottles and other things as I heretofore stated. They seem to have anything they could get their hands on. And when they got close enough, they would throw them towards the marshals. When the front of this crowd, which General Walker was with, got in about 200 feet to the marshals, they fired another blast of tear gas and the crowd ran back, with General Marshal -- General Walker with them. Now as --
Abe Fortas: General Walker -- I'm having some trouble with the thrust of your argument that is -- are you telling us that whether a man is a public figure for purposes of New York Times depends upon what he did? That is to say suppose General Walker had here just made a speech, suppose he had come down to the university and went on campus and just made a speech, no violence, nothing else, and then there's been a libelous article published by Associated Press. Now, is that -- would he -- would that still bring him -- will he still be within a public figure within New York Times or it does -- is this vortex idea of an essential part of it and the sense that you've got to be part of the violence and commotion of the incident?
William P. Rogers: No. Mr. Justice Fortas, I wasn't making that argument. I was making the argument that the AP dispatches were true. In just a moment, I thought I would come to the argument that you referred to. I think in this situation the dispatches by the AP were actually true. But I think furthermore --
Abe Fortas: But the jury found that against you?
William P. Rogers: Well, as I say, I think it's clear that under these circumstances where the case was tried, as I will point out in Louisiana, a companion case was tried, the jury there was asked for in the complaint to award the judgment of two million and a quarter against the Associated Press and they brought it back to verdict of $3 million. So, it's pretty clear that in the climate of today in the civil rights field especially the question of truth that if it has to be decided by juries at this time, is going to be very inhibiting as far as First Amendment constitutional right is concerned, because newspapers and magazines, and television stations just will not be willing to risk judgments of this kind. Will not be willing to --
Abe Fortas: What in fact is the question of the law?
William P. Rogers: Well, the question of law that you ask about whether I think that making a speech would in itself suggest that he was a man of political prominence I think is difficult to answer. It would depend on what he'd done prior to the speech? What he said in his speech? And the nature of the events that led up to the speech. I think there could be no --
Abe Fortas: Well, my own question would be is suppose you took General Walker as he walks. And suppose he went down to the University of Mississippi and then mentioned with the Meredith matter, and suppose all he did was to make a speech. And then that speech and the AP dispatched as libelous and let's suppose the speech was rather particularly inflammatory. Would General Walker be a public figure for purposes New York Times?
William P. Rogers: Well, if you assume in addition to what you assume that all the other things that General Walker has done prior to the time he made the speech, my answer would be, yes.
Tom C. Clark: Well, you don't claim that once you put the petition?
William P. Rogers: No, but I -- not at all, Your Honor, but what I'm saying here is that --
Tom C. Clark: Nature, isn't it?
William P. Rogers: It's the nature of his activities.
Tom C. Clark: The nature of the subject matter on the discussion, is that right?
William P. Rogers: -- and plus what he's done. For example in this case, General Walker resigned from the Army because he said he wanted to engage in political controversy. He was a candidate for Governor of Texas just a few months before the events at the University of Mississippi. He was a member of the John Birch Society and achieved national status with a political following of his own. His political following is called Friends of Walker. And paradoxically, in the light of -- I think that this is interesting that he admitted that he is paid to make speeches. And in these speeches, generally speaking, he maligns public officials with whom he disagrees. That's pretty clear Your Honor that the decisions of far-reaching political and social importance are often significantly influenced by views and activities of public men who are not technically public officials.
Speaker: Supposing this had been a problem of a student leader in the campus as he done what the record shows was done here, would you say that New York Times it doesn't qualify him as a public figure even it will all be a public figure on the area of the campus at the time as to this unfortunate situation? Would you say the New York Times will hold that the case isn't governed by it?
William P. Rogers: Well, it's difficult for me to answer those questions because I would have to know what the student leaders have done. And if didn't --
Speaker: Everything that you claim that Walker did here had been done by a prominent student leader, the president of the student council.
William P. Rogers: Yes. Well, I would think then that the -- he would -- it would cover him, yes.
Speaker: It would?
William P. Rogers: That's assuming he'd done all the things that General Walker has done. If he had a political following of his own, if he had made speeches all over denouncing the federal courts, if he haven't run for political office the fact he was student leader I don't think it would make any difference and if he had gotten out on the campus and encouraged the mob to riot and applauded when he found out that there were casualties, I would say that the New York Times rule should cover him.
Byron R. White: Well in the sense, aren't you really saying and why shouldn't you say that newspapers are interested in the public interest in reporting news of the events especially one like this, and the participants in the news or the event are bound to be reported. Why should the press -- why do you think the press be subject to the rule of absolute truth?
William P. Rogers: Yes.
Byron R. White: In this instance -- wholly aside from whether the people involved in public figures or public officials and what not?
William P. Rogers: That's correct, Your Honor.
Byron R. White: Have you exactly --
William P. Rogers: I do. I agree with that and that is what we are --
Byron R. White: (Voice Overlap) -- start with you that supports the crowd rumors?
William P. Rogers: Yes, I would if the person was a person of some political prominence --
Byron R. White: Then why -- why should that make any difference here?
William P. Rogers: Well, I can't imagine -- I can't imagine the situation where the Court might now want to extend the rule quite that broadly.
William J. Brennan, Jr.: Oh, I noticed you don't cite it, Mr. Rogers. If you suggest that proposition, then I wonder why you don't make some reference to Time and Hill.
William P. Rogers: Well, we've mentioned it. We figured the Court --
William J. Brennan, Jr.: You mentioned? I didn't see anything.
William P. Rogers: Yes, of course it came out after. I think our -- it was decided after our brief was prepared, Your Honor. And I think the Time in the Hill case does suggest that as well as we indicated I think the Rosenblatt suggests that and the Garrison case suggests that. I would like to --
Earl Warren: But what -- but in relation of this incident, did he become a candidate for governor?
William P. Rogers: It was -- I think about eight months before or six months before something like that. He has been defeated by that time but he'd been during that that year.
Earl Warren: I see.
Abe Fortas: But suppose the Associated Press published an article about General Walker and nothing whatever to do with the University of Mississippi. Well, let's suppose that his private life or I suppose that time or what -- nothing whatever to do with this public figure at all but that dealt with his private life?
William P. Rogers: Well, I would not think in that case, it would be covered by the New York Times rule because it would have -- New York Times rule is limited to official conduct and I think that if New York Times has extended itself it will be, it would have to conclude the same ambit and that would be public activities involving matters of political controversy. So I would answer your question, I would think it would not cover private activities of General Walker. I would like -- just in closing this portion of my argument to point out that -- that upholding it just extends the New York Times rule to this case will not fully resolve the constitutional issue of this as we see it. The threat inherent in the pendency of these suits --
Earl Warren: The what?
William P. Rogers: The threat inherent in the pendency of these suits, the burdens of these lawsuits. There are 15 of them in 10 states, as I say asking for $33 million are themselves unconstitutionally inhibiting because newspaper just can't afford to report an events of this kind if they're going to be faced with litigation of this type. For example, the Associated Press now has a bond of -- in Louisiana, over half a million dollars, in the -- in Texas I mean in Louisiana case, we have -- because the Times (Inaudible) also sued. The bond required there was $3,375,000. Each defendant has $1,250,000 in cash on deposit. So that here the fact is that if a man such as General Walker decides to sue in areas where the facts are going to be decided by juries and obviously, you're very emotionally involved in the public controversy. Then the threat -- then the threat is so serious that the press is going to be inhibited in what they report.
Speaker: First, carrying out the reasons for the logical conclusion that this was always you think in saying that all faith under the law because obviously, a libel law does impose an inhibiting effect on absolute freedom of the press.
William P. Rogers: Yes.
Speaker: And so, don't you agree, first your argument that you are now making puts malice in everything?
William P. Rogers: No, it doesn't seem to me that I do, Justice Harlan. I think that in the situation of this kind where a man sets out to become a political figure, who says he resigns from the army to engage in political controversy, is a candidate for governor, who has a large political following of its own that help to support him? When he engages in matters of this kind where he attempts to obstruct the order of a federal court being carried out and the report, I think in this case, as I've said is true but when it's presented to a jury in Texas that tends to side with the views of General Walker as they brought in a large verdict. They brought in that $300,000 verdict for punitive damages and the Court very clearly says there was no evidence of malice.
Abe Fortas: Well, General Rogers, I wonder if that really is in fact the position that you want to impress on this. Suppose somebody named “John Doe” had appeared out of nowhere and had participated in this University of Mississippi disturbance, the same way and suppose the Associated Press carry the story about him. And that story was not true and he's damage and then he brought suit. Now would it or would it not the position that New York Times nevertheless supplies that John Doe that came out of nowhere and participated in a public event in a way that attracted a lot of attention. What is it? I mean to say, is that --
William P. Rogers: Well, may I just say, I -- I would like to urge that the rule extend to that person. I don't think it's necessary to go that far in this case. I would hope from the standpoint of the press that the Court will see fit to go that far. I think there is a considerable difference though in the case that you proposed in this case. And that in this case, if the Associated Press had written about the United States marshal, he would have had no cause of action. The Associated Press says the same thing about General Walker who has been a 100 times more active in the field of civil rights than the single United States marshal, then he has a cause of action for $33 million and he's already has two judgments. So, as far as General Walker is concerned in this case, I think that there's no doubt about it; that the New York Times rule has to be extended to cover him. I would also hope that it would be extended to cover the case as you cite. Your Honor, please, I would like to reserve the rest of my time.
William O. Douglas: Well, I must say that, Mr. Rogers that I don't understand that, the answer you gave me earlier. Why you wouldn't answer Justice Fortas, that it may not be public official problem during that? Isn't that the time that your problem involved in the case of John Doe came out of nowhere?
William P. Rogers: Well, as I say, I do after the Court extends the rule that far.
William O. Douglas: Well, it's probably he's having you already.
William P. Rogers: Well, I think he may have.
Byron R. White: I thought you think there's really some case that kind of reason --
William P. Rogers: Yes. One of the reasons I hesitate to answer because in the Hill case, it wasn't a libel suit. It really was there invasion of privacy under the civil rights statute in New York and I hesitate to say that the Court has because there may be some members that who wouldn't agree with me.
Abe Fortas: Well, Mr. Roger, what we are talking about here as I understand it is the First Amendment. And the question is, what's the other report by the press is entitled to some kind of protection over and above what is included in the interstate libel law?
William P. Rogers: Yes, sir.
Abe Fortas: And then, that is our inquiry or inquiries about the First Amendment and the question of whether the person is a public figure or whether it's news were -- would proceed to into some other problems in Time against Hill and are subordinate to that inquiry. But you're pitching your argument here, as I understand it, entirely on public official question?
William P. Rogers: No, Your Honor. I hope that I have not given that impression. I think that I'm pitching my argument here on the facts in this case because I would like to have the Court rule that the New York Times still extends to Walker. And I would hope that the Court would rule that the issue of malice has been determined and therefore is conclusively determined in the -- so that these other 15 law suits don't have to be tried. And insofar as the rest of your question is concerned, I think the rule should be extended, not only the person with political prominence but to public events that reported. And if the type of situation that you suggest, the persons is out of the blow and takes part in this kind of an activity, thrust himself in the vortex of that controversy at that time, the rule should cover him. Thank you very much.
Earl Warren: Mr. Watts.
Clyde J. Watts: Yes, sir. Mr. Chief Justice and may it please the Court. I have been a participant in this legal conflict for an extended period of time. The doctors have a rule that they never operate members of the family. Perhaps lawyer should have a rule that they should not participate in cases in which the two closely involved. At the inception of this litigation or of this argument, I respectfully suggest to the Court that I have known this man as a classmate and as a fellow soldier for too long.
Hugo L. Black: May I ask you a --
Clyde J. Watts: And if I make some suggestions --
Hugo L. Black: May I ask you, sir, that hasn't anything to do with this case?
Clyde J. Watts: Sir, it does. There's -- I just apologizing in advance. I don't intend to get off in these areas and I, in advance, suggest to the Court that if I do it's an error of the mind and not of the heart. Now first, the issues in this lawsuit, although apparently complicated, are essential in sense. As counsel stated the basic issue is whether there is an immunity upon the press in this case, falsely to accuse a man of crime. By our concept, the action --
Byron R. White: Is that really the claim here?
Clyde J. Watts: Yes, sir. That is our -- that is our contention. Oh! That is their contention. Yes
Byron R. White: Well, they don't -- they don't say that the press may deliberately tell the Court to?
Clyde J. Watts: That is the effect, sir, of the argument primarily of the amicus curiae and essentially of the Associated Press. In this case, unlike any reported case before this Honorable Court --
Byron R. White: Do you think the New York -- the New York Times rule really in effect to protect this or they deliberately lie?
Clyde J. Watts: No, sir. I do not think it does.
Byron R. White: That's solely with the claims in the --
Clyde J. Watts: Because the New York Times case did not involve the charge of crime. In this case --
William J. Brennan, Jr.: Oh! Garrison did, didn't he?
Clyde J. Watts: Sir?
William J. Brennan, Jr.: Garrison.
Clyde J. Watts: Not as such as I get Garrison. The issue I am endeavoring to submit and suggest to Your Honors is, that this Court is now plowing out the perimeter as have built -- been well-stated by the authors of New York Times of the rule of that case extending immunity to the press, threading along the boundary between the freedom of the individual from accusa -- from false accusation and false defamation as distinguished from the freedom of the press to timely, to accurately, and timely report the news. Now, that is the responsibility and it is a somewhat of an awesome responsibility that now rest upon the shoulders of this Court, to fit the perimeter in a manner in which the citizen will not be troubled by an all powerful press in endeavoring to make this position known by a freedom on the part of the press to accuse him falsely of the commission of crime. Now, what was done in this case was an accusation against this man that promptly resulted in his incarceration in a Federal Mental Institution. Now, the facts in this case and the legal issues have been summarized in the reply brief of the Associated Press. I will go down those issues for brevity and simplicity, the time is short, in order to spotlight before this Honorable Court the issues as I comprehended. The first statement that is made in the reply brief is that Walker, in attempts to create the impression that he was arrested and charged with a felony and separate various other humiliations as a direct and proximate result of news reports. Nothing could be further from the fact. I respectfully suggest to the attention of the Court, the first Associated Press news release on page 1229 of the record, wherein at now in --
Byron R. White: In what volume is that?
Clyde J. Watts: Sir?
Byron R. White: What volume is that?
Clyde J. Watts: That is volume 3 --
Byron R. White: Thank you. 1229?
Clyde J. Watts: Yes, sir, page 1229 of the record. Under a release time of 9:20 that the Court rule recognized, at the bottom of page 1222 -- I as you are page 1230, with release time of 9:20, the Associated Press reported that this man had assumed command of the a mob and he led a charged. The reporter who issued that news release was listed upon the Government's complaint, in this case, as having furnished information upon which this man was thrown in jail and a fantastic course of events that thereof occurred illustrates graphically and dynamically to this Court, the potential nuclear impact of a -- an extreme power of the press to falsely -- to accuse the man falsely of a crime. Now this man was siezed taken before a United States commission ordered to be confined within the State of Mississippi. In the custody of the marshal of the State of Mississippi, within an hour a telegram arrived from the Department of Justice, directing his transportation to Springville, Missouri. And without a court order, without notice, without counsel, without a hearing, this man who is tried and admitted to a prison, Mental Hospital, in defiance of almost of every right known to the Constitution and the law books of this great man. The next day, upon an affidavit of a psychiatrist who had never seen --
Abe Fortas: What -- on what basis do you say as I guess you must that this course of events was the -- was approximately caused by the Associated Press story?
Clyde J. Watts: Yes, sir. I said this was triggered by the release at 9:25 on the evening of the riot.
Abe Fortas: You mean it followed the release?
Clyde J. Watts: Immediately on the reporter, sir, who made the release, appeared on the Government's complaint as the witness furnishing the information upon which Walker is incarcerated. So the issue I'm endeavoring to present to this Honorable Court is --
Byron R. White: Is that if -- where is the -- is the Government's complaint in the record?
Clyde J. Watts: Yes, sir. If Your Honor would turn to the answer to amicus curiae brief --
Byron R. White: What?
Clyde J. Watts: It's page 7 of the appendix.
Byron R. White: Of what?
Clyde J. Watts: Page 7, the amicus answer to amicus curiae brief --
William J. Brennan, Jr.: Well, if I -- may I just ask you, what you are going to tell us is that part of the trial record? I mean, what --
Clyde J. Watts: Sir, I don't remember whether that was specifically entered in the trial or not.
William J. Brennan, Jr.: Well, I'm just -- just interests me something like this if there's no effort at the trial to establish that there was a connection between the complaint filed -- this initial release, the author of that release and the author of that release has one of it supporting the Government's complaint?
Clyde J. Watts: Well, those facts were all over the trial, sir. I don't -- I couldn't say it --
William J. Brennan, Jr.: Are they in -- if they are in the trial record?
Clyde J. Watts: If my recollection, I won't to be -- I want to recheck and answer Your Honor's question precisely.
Earl Warren: You may check during the luncheon recess.
Clyde J. Watts: Alright, sir. Thank you very much. To answer your question, sir. I have rechecked the record. I have tried two of these very extensive lawsuits and when I rechecked my mental process, when counsel referred to Louisiana case that is specifically in the record of Louisiana case. In the Texas case, it is not in the trial record. I presented in my brief solely as an example of what can happen to an individual citizen, if the press is free to accuse him falsely with a crime. That's the answer to that. Now sir, I was discussing --
Potter Stewart: What did happen?
Clyde J. Watts: Sir, he was arrested.
Potter Stewart: Uh-hum.
Clyde J. Watts: Given into the custody of the U.S. Marshal for confinement by court order in Mississippi. Without a court order on that on a telegram from the Department of Justice, he would put on the motor patrol plane, not told where it was going. On a pursuant to an affidavit from a psychiatrist in Washington who had never seen, said he read news reports. And he was shipped to Springville, Missouri, Prison Mental Hospital, in an atmosphere of criminal insanity. The next day, without notice counsel or hearing, an order was signed committing there for the period that it took to examine which developed within 90 days --
Tom C. Clark: Is this a suit against the United States?
Clyde J. Watts: No, sir. This is not heard. They just, sir, asked me all that what happened. I was just outlining.
Potter Stewart: If you go to the quantum of the damages in this case I suppose?
Clyde J. Watts: Well, no, sir. That -- as I remember now, that could have been involved in the Louisiana case --
Potter Stewart: I see.
Clyde J. Watts: -- and in the Texas case.
Potter Stewart: Yes.
Clyde J. Watts: It was excluded. The Court had no rule --
Potter Stewart: I see.
Clyde J. Watts: -- relationship with the acts of incidents between Walker and the Government of the Texas case.
William J. Brennan, Jr.: You don't claim the Associate Press putting him in?
Clyde J. Watts: As claim, sir that the Associated Press triggered the course of events which resulted in this fantastic situation. They on the night of September 30, and prior to the reply brief of the Associated Press. And on the night of September 30, they issued the new release at 9:25, that Walker had assumed command of the crowd and led the charge. Now, as Mr. -- my brother Rogers has outlined has been tried in two cases, two juries upheld that he did not lead the charge. Now, in this particular case --
Potter Stewart: Well, I didn't --
Clyde J. Watts: Yes, sir.
Potter Stewart: -- quite understand your answer to my question I think that he was held there for 90-day or --
Clyde J. Watts: No, sir. He was order to be held after 90 days. I finally got him out at the end sixth day by going back to Mississippi. I couldn't even get a writ of habeas corpus.
William O. Douglas: I don't understand this triggering thing here --
Clyde J. Watts: But what I say --
William O. Douglas: -- because he had an obscenity case recently and there was one of the briefs showed that a man went on to see a movie called “The Ten Commandments”.
Clyde J. Watts: Yes, sir.
William O. Douglas: He came out and killed seven women.
Clyde J. Watts: Yes, sir.
William O. Douglas: That movie triggered that. But then it had nothing to do with whether a movie or I don't know but this triggered and has --
Clyde J. Watts: Well, what happened in this case, sir? The Associated Press said that he had committed the crimes of insurrection, sedition, seditious conspiracy, and assaulting U.S. officers. Immediately he was arrested. He was seized and taken to the Prison Mental Hospital in Springville, Missouri, without notice for counsel and hearing and on an affidavit of the psychiatrist who had never seen him. Now that was only direct and approximate result, sir, of the false news report that can happen when the news media has no intention --
William O. Douglas: But you always claim that -- you don't claim that as a quantum of --
Clyde J. Watts: No, sir. That has nothing to do with the nature of damages in this case.
William O. Douglas: I think it would be irrelevant here.
Clyde J. Watts: Yes, sir. But it's relevant only to the extent of illustrating. What can happen to an American citizen when -- who is exercising his right of freedom of free speech, when the newspapers uninhibited by financial responsibility from accusing him falsely of a crime. I offered solely sir as an illustration of what can happen under the rule demanded by the press in this case and to freedom --
William O. Douglas: What was he charged with?
Clyde J. Watts: Sir?
William O. Douglas: What was he charged with?
Clyde J. Watts: He was charged with sedition, assault of the U.S. office -- officers, insurrection and seditious conspiracy. Four crimes that he had take the self -- he's a combat soldier in the United States Army to support and defend the Constitution in United States.
Hugo L. Black: What happened to those cases?
Clyde J. Watts: Sir?
Hugo L. Black: What happened to those cases?
Clyde J. Watts: The grand jury dismissed the charge. Refused to indict, the Government dismissed the charges. And there as I show in this case --
Hugo L. Black: Is that in Mississippi?
Clyde J. Watts: In Mississippi, yes, sir. As I say and have presented to this Honorable Court, in the briefs the Associated Press gamble for the highest stakes known to human conflict, the reputation and liberty of an American citizen. They gamble for extensive financial profit by presenting around the world on their war services. The intelligence of this man, a former general officer in the United States Army, had to assume command of a rag tag, band of students, and had led the charge on the Government that he had sworn to defend against all enemies, foreign and domestic. Now, that was not passed around the world for profit service --
Earl Warren: Might not some of the statements that General Walker's quoted as having made in the briefs says have triggered that just as much or more?
Clyde J. Watts: Sir, here by my concept of it, I -- those statements are enforced.
Earl Warren: That's --
Clyde J. Watts: I regret them but I do not believe they could have triggered them, sir, because they were not a crime.
Earl Warren: They were not what?
Clyde J. Watts: They were not a crime. In other words, that was an argument that General Walker had very vehemently and acoustically presented but it was not he accused no other crime. And the issue in this case is, has the Associated Press falsely accused Walker of a crime? If they have or they're privilege under the Constitution to accuse a man of crime when they -- when their report says, “I saw Walker led the charge from a distance of 6 feet. And when Walker answered, “Did you really saw me or you didn't? If you saw me, I am guilty of a crime. I've been properly charged. If you didn't see me, I have been falsely accused.” Now, that's the issue and we're -- as much as I regret, the incompetent statements that were made, sir, and I sincerely regret them. But that is a collateral issue that as I respectfully submit to this Court, has been injected into this lawsuit for the purpose or for its obvious purpose.
Speaker: You are here with the jury verdict -- you're here with the jury verdict in your favor?
Clyde J. Watts: Yes, sir.
Speaker: On the facts?
Clyde J. Watts: Yes, sir.
Speaker: Now, why don't you address your --
Clyde J. Watts: That's I what I was -- and then they were just -- the fact. I appreciate that sir. My time is short and I would like to suggest number one, the Associated Press has had every advantage of the First Amendment to the Constitution. They have had every advantage of the rule of the Sullivan case. They had an opportunity to request the jury under Texas Special Issue Proceeding. Did you -- do you find that this report was knowingly false or in reckless disregard of truth? They elect the places to refrain from making such a request. Under the Texas Rules of Civil Procedure, when they make no such request, they wait. Now, here is the instruction to the jury that was made actually more onerous to the plaintiff than is Sullivan had said. And the jury was instructed in the definition of fair comment. Here instructed that by said term has made a statement that represents the honest opinion of the writer.
William J. Brennan, Jr.: Well, Mr. Watts, may I ask this?
Clyde J. Watts: Yes, sir.
William J. Brennan, Jr.: I'm looking at pages 70 and 71 of the record.
Clyde J. Watts: Yes, sir.
William J. Brennan, Jr.: This apparently is the opinion of the trial judge, I gather on the Associated Press' motion for a judgment notwithstanding verdict.
Clyde J. Watts: That's an informal letter. Yes, sir. It did -- it did not --
William J. Brennan, Jr.: Well, is -- isn't it his opinion?
Clyde J. Watts: No, sir. Well, I -- I construe it's just the letter to counsel. It was never entered down the record --
William J. Brennan, Jr.: In any event, he is stating the reasons --
Clyde J. Watts: Yes, sir.
William J. Brennan, Jr.: -- why he is acting as he speaks in the letter. He's going to act on the motions for judgment notwithstanding the verdict. Now he says at the bottom here of page 70, he goes through the matter of actual malice and he detailed it and he concludes that negligence was involved. But then goes on to say, “Wisdom in good judgment do not necessarily come with age nor are they necessarily deny view.” In my opinion, New York Times v. Sullivan, then he cites William Carter Publisher Co. over the little page, it's called the Panhandle Publishing Company support these conclusions. The conclusion being is that there is no evidence of malice.
Clyde J. Watts: Yes, sir. I'm glad you already answered that question because that is rather on target on the -- really the only issue in the lawsuit. There was no evidence of actual malice as defined by the Supreme Court of Texas and as defined by the Texas law and is outlined in the opinion of the Court of Appeals.
William J. Brennan, Jr.: Well, what about the citation of New York Times in Court?
Clyde J. Watts: Yes, sir. I am going to outline that here sir. That the Court vacated the punitive damages finding. And here is the -- the finding of his record. Do you find that the report was actuated by malice as the term is defined? Definition: “Malice is meant ill will, bad or evil motive; a conscious indifference to the right or welfare of a person.” Now, if Your Honor please, this is not a definition of Sullivan type of malice. The Court also interrogated the jury, “Do you find -- and this was a finding that remained in the case. It was not disturbed by any Texas court.
William J. Brennan, Jr.: No, but may I ask you --
Clyde J. Watts: Yes.
William J. Brennan, Jr.: -- if whether these opinions of the trial judge at least it could be read that he concluded there was no malice in the New York Times since to proved?
Clyde J. Watts: No, sir. I don't construe it that way. He said that New York Times doesn't apply. Therefore, it --
Byron R. White: What if you're wrong that the opinion really is to be read that way and that the judge has ruled there was no evidence in the case of New York Times type malice?
Clyde J. Watts: That's the question I was about to address myself to moment ago. The Court actually in under special issues, one and five, told this jury that fair comment is a statement which represents the honest opinion of the writer. Now, that is the ultimate that can be demanded by the news media under New York Times. In other words, the Associated Press, every option in the trial of this case to demand a special issue of this jury, do you find that this publication was in reckless disregard of the truth or was knowingly false? The Associated Press selected not to do that, why? Because the special issue I presented into the jury was even more difficult for the plaintiff than was New York -- the New York Times rule.
Byron R. White: Yes, but the judge here apparently didn't think --
Clyde J. Watts: Well, sir --
Byron R. White: -- the -- these are plaintiffs that the defendants had waived this point because the judge apparently feel it was still on the case and not want N. O. V to rule on it.
Clyde J. Watts: Solely -- solely sir, as to express malice for the purpose of punitive damages which is I have outlined. There is a vast distinction under Texas law of expressed malice for punitive damage and Sullivan type malice which is knowingly false or reckless disregard of the truth.
Byron R. White: I know on that basis so there's no reason for the judge to go and explain why New York Times and what did not apply?
Clyde J. Watts: Sir --
Byron R. White: With no reason whatsoever?
Clyde J. Watts: We do have too many cases too long I have seen judge has go on and comment on many things that we can refer to as dicta. And frankly to me, sir, that is dicta that he used --
Byron R. White: They usually are when they are embarrassing.
Clyde J. Watts: That is it dicta so that the --
Byron R. White: That's the point raised by the defendant's motion in -- for judgment notwithstanding verdict.
Clyde J. Watts: Yes, sir. The New York Times rule was made. When the judge -- here's the point I am endeavoring to get over to the Court. In the trial of the case, in framing the issues, this defendant was perfectly contempt to rely on the definition of fair comment as given. Do you find that this report represents the honest opinion of the writer? The jury said, “No”. Do you find that this report was published in good faith? Now, there's no rule under New York Times and those findings placed here remain in the record. They are undisturbed by the trial Court, the Seventh Court of Appeals and the Supreme Court of Texas. So, we now confront this Honorable Court, confront this case in this posture. In the record there is a finding that this report, that Walker assumed command of the mob and led the charge, is not fair comment and is not “the honest opinion of the writer”. In other words, there goes a man who has said in a news report, “From a distance of six feet, I saw Walker assumed command of the crowd and led a charge”. The jury said, “That is fault. That is not your honest opinion at that time you wrote it.” The jury also said, it is -- it was not published in good faith.”
Byron R. White: Hence, it is a deliberately false statement as you truly found.
Clyde J. Watts: Yes, sir. I think the jury found a deliberately false statement because the -- in the special issue under which the Associated Press was contempt to present this case to the jury said, they're entitled to fair comment which is a statement that represents the honest opinion of the writer.
Byron R. White: So, you think the judge was just playing along?
Clyde J. Watts: No. Well, I think his comment was wrong about New York Times. So I think he got off into an area that's large frankly --
Byron R. White: Well, I know but when he says there -- when he says there was no New York Times take malice, you say he was just plain wrong because the jury found exactly the contrary?
Clyde J. Watts: I say sir that in the first place, that wasn't before the Court. He was dealing only with punitive damage. He did not pass upon so far as I was concerned other than approve it the other special issues. And he approved the special issues and said this was not the honest opinion of the writer. That's the inevitable fact that I am endeavoring to present to the Court. So my first contention is, gentlemen, if it pleases the Court, that the plaintiff -- the defendant has had every benefit of New York Times.
William J. Brennan, Jr.: Incidentally, I gather did you seek any review of his setting aside the award of punitive damages as construed to that?
Clyde J. Watts: As to my recollection, the Texas counsel had unless my recollection he did. I know we intended to --
William J. Brennan, Jr.: And you lost that of --
Clyde J. Watts: Oh! Yes, we did in the Texas Court. Yes, sir.
William J. Brennan, Jr.: But you lost that?
Clyde J. Watts: Lost that in the Texas Court.
William J. Brennan, Jr.: So at least to that extent, whatever is the reason, the conclusion of the trial judge that you were entitled of punitive damages has been sustained all to the there courts?
Clyde J. Watts: Right, sustained by three courts. And in the language of the appellate court, the appellee had failed to prove malice as defined. Now again, I call the attention of the Court to the definition of malice that was ruled out and the Court held, we did not prove. Malice is meant ill will. Sullivan does not involve ill will.
Potter Stewart: Where are you reading from?
Clyde J. Watts: I'm reading, sir, from the finding -- finding special issue number 8 in page about 58 of the record or on page 22 of my brief.
Potter Stewart: Thank you.
Clyde J. Watts: The blue brief. Malice is meant l ill will, bad or evil motive, have that entire want which will raise to believe from a conscious indifference to the right or welfare of the person to be affected. Now, the trial court, the Court of Appeals, and the Supreme Court of Texas held that we had not through that. They left intact in our ground undisturbed.
William J. Brennan, Jr.: Will you tell me this Mr. Watts, the trial court said, “I failed to ascertain of the failure to check such a minor discrepancy, could be construed as that entire amount of care which would amount to a conscience -- conscious indifference to the rights of plaintiff.
Clyde J. Watts: Yes, sir. The word --
William J. Brennan, Jr.: Is that a reckless disregard standing?
Clyde J. Watts: Yes, sir. The word “conscious”, if Your Honor please?
William J. Brennan, Jr.: No. Conscious indifferences, it is something like reckless disregard --
Clyde J. Watts: No, sir. It is similar. Just like a horse is similar to a cow but a horse is not a cow. A conscious indifference involved an element of evil deliberate design. It is necessary under Texas law to get punitive damages. That Court held that we have not proved a conscious indifference. But Your Honors upheld that if you prove a reckless disregard so -- and I'm going to commend Your Honor a careful evaluation of the Sullivan rule. Creation, as I heard counsel very aptly stated this morning of a guideline and I think one of the members of this Honorable Court made a suggestion to that guideline were indicated in the case of this kind. This Court now is involved in writing a guideline that will fix the perimeter between the freedom of the individual against false accusation and defamation and the freedom of the press report to news. And I'm here to cover if I have time in this issue that when the issue involved is false accusation of a felony, the press improper, the press in constitution, the press can carefully assume a standard of care that will prevent precipitous false accusation of a crime and have a man thrown in jail, completely innocent of the crime for which the press charged him. And in simple language, it is the design of the Constitution to the United States of America at the press report the news and not makes the news as they did in this case. They have a basic defect, the defect in this lawsuit, the greatest news of media on the face of the earth was absorbing the actions of this unfortunate event in Oxford, Mississippi. An individual arrived there who have previously had created of him a public image. Everything that was written by Associated Press expanded that public image as a criminal lunatic. We perhaps support the fact that the United Press reported that during along in the rioting, General Walker manned the confederate statue and begged the students to avoid violence. Now, I'm sure Your Honor --
Byron R. White: And begged the students to do what?
Clyde J. Watts: To avoid violence which is absolutely the truth? We prove to everybody the overwhelming evidence and General Walker was utmost at all the students, a protest in this unfortunate event that he cautioned the student to avoid violence. Now, there are many few witnesses, not many and all of them incidentally were members of the news media. They came in and reported that they heard Walker versus the report of counsel made. He say, Riot! Riot! And General Walker like myself has built our careers. What he said, “Right, right! Right, right.” When there's someone asked him something he said, “Right! Right!” Well, witness has heard it and reporter heard it, “Riot! Riot!” Now, that shows what can happen after a no restraint on the news. Now, what I desperately hope to get over to this Honorable Court is that you're dealing with news as a commercial commodity. There is nothing sacred about the Associated Press as recognized by this Honorable Court in its opinion in Associated Press against the United States. There's no single element by traditional insistence upon equality of fair trial for every person from which any such discriminatory practice can stand. Member of the publishers of the Associated Press are engaged in business for profit exactly as our other businessmen who sell food, steel, aluminum or anything else people need or want. The fact that the publisher handle his news while others handle food does not at which I'll later point out afford the publisher a peculiar constitutional sanctuary in which he can with impunity, violate laws regulating his business practices. One of the laws that regulate the practice of selling the news is that, thou shall not falsely defame or accuse thy name. Now, we're dealing in this case as Your -- as this Honorable Court has recognized many times where a public debate it goes to the very essence, the very foundation of the survival of this country. The question is to what extent can an individual citizen debate with a newspaper, with the Associated Press, or the magazine. And I respectfully submit to this Honorable Court that unless coupled with the fantastic economic power of the Associated Press and its related news organs, there is coupled a financial responsibility, the news that those people sell to the world of the common drug on the market. As I remember, one of the imminent writers in the early days of this great country of ours, made a comment that it is pureness alone that gives things at right. What we obtained too chiefly, too chiefly we as deem to life. Now when the people attained a new product and this is a commercial product that is not based upon the financial integrity of the manufacturers of that product, if the Court please, the confidence of the American people in the news media that represents them or be completely wiped away and the credibility gap will extend so completely that the people will believe, in nothing they read and nothing they hear. And I respectfully suggest to this Honorable Court that the greatest disservice that could possibly done by the Associated Press in this case is to permit them to manufacture and sell news without the trademark of their responsibility behind it. Now, that's the issue that is involved in this case. Now as to the effects --
William O. Douglas: What was -- what was the fault -- was there anything fault in publication?
Clyde J. Watts: Sir, had they said he assume command of the crowd. I have very carefully outlined all the issues in this case are on the efforts. Incidentally --
William O. Douglas: He'd led the charge of students?
Clyde J. Watts: Sir? He did not.
William O. Douglas: I say the charge -- the statement was --
Clyde J. Watts: Yes, that's part. Then he assumed command of the crowd and led the charge.
William O. Douglas: Those are the three false statements?
Clyde J. Watts: Now, I have analyzed in the utmost detail in the evidence of this case, it is more than conflict. It is overwhelming. If anyone will read it, the General Walker entered --
William O. Douglas: Was he in the crowd?
Clyde J. Watts: Sir?
William O. Douglas: Was he in the crowd?
Clyde J. Watts: He was in the part of the crowd. The witnesses testified that he walked towards the flagpole which was in the center of the circle almost the length of a football field the lyceum. The evidence is also so completely conflicting that this young cover reporter called the news room in New Orleans in the office -- or on the telephone. He said, “I have seen Judge Walker --
William O. Douglas: General Walker.
Clyde J. Watts: -- General Walker come on this campus make a speech, inflamed the crowd and led the charge.
William O. Douglas: This was the reporter that joined the crowd.
Clyde J. Watts: Yes. This reporter that issued the charge that brought the charges. Incidentally, he was the only one of six newsmen of Associated Press on the campus that night that even purported to have seen anything of this kind. The Associated Press brought to Court, sir, not one employee of the Associated Press. They brought to Court that one United States marshal. Not one highway patrolman. We brought a highway patrolman. We brought a reporter from the New York, from the Washington Star, who was addressing with General Walker on the campus that night. No one in the world that we have seen except this newsman and among other who has so completely conflicting in his testimony and he was unworthy of belief. No one else has ever -- even insinuated that General Walker led the charge. Now --
Byron R. White: Did this -- did the reporter testify in this case?
Clyde J. Watts: He did not testify in this case except for not kept his depositions and overdo the excerpt covering this. They brought him to -- this I need to get outside the record that counsel I just refer to the Louisiana case. They brought him to Louisiana. The judgment there, the verdict was $3 million because we had actually pled for $3 million.
Byron R. White: But you didn't introduce it, if you introduced anything from his deposition?
Clyde J. Watts: I introduced excerpts with deposition.
Byron R. White: If you introduced statements by him that he saw General Walker?
Clyde J. Watts: Yes, sir.
Byron R. White: In this record?
Clyde J. Watts: Yes, sir.
Byron R. White: You know where that is in the record by (Voice Overlap)?
Clyde J. Watts: Sir? Sorry? I got to fill here and place in this --
Byron R. White: Do you know where that is in the record?
Clyde J. Watts: I could find it if --
Byron R. White: Alright. I don't want to take your time looking for this --
Clyde J. Watts: -- I just take look -- take a little bit of time. But I offered the testimony to prove respondeat superior. To prove that the order of this police report that said from a distance of six feet, “I saw Walker lead this charge so I know such thing. I also offered the news -- the said speech of the Associated Press itself which preceded the argument. It said, “Here is the story-events available, 21, Associated Press newsman. He was there and saw what happened. The jury held he was there but he didn't see what he said he saw. Now, these issues have been litigated, I respectfully submit to the Court. Thirdly, I mean where the complete opportunity of the Associated Press to prove not just -- the only they have to prove was that this was the honest opinion of surveillance. They could not approve -- they could not prove that in a trial that I submit respectfully to this Court was eminently fair by a judge who took and look up our effort for every interest that the Associated Press says.
Speaker: How long was the jury out?
Clyde J. Watts: The jury was out as I remember couple of an hour and a half to two hours. May be more but they were out of substantial length of time.
Byron R. White: Well, do you -- do you contend that the jury also found that not only that General Walker did not lead the charge but that he did not even participate in any general movement forced the marshals?
Clyde J. Watts: The -- the special issues submitted to the jury, “Do you find --
William O. Douglas: I suppose that the man was actually wasn't there, that could be one thing, but was he there?
Clyde J. Watts: He was there. Yes, sir. And I say that had he not been permitted to accused of a crime and here, I better get minute on my concept of the Sullivan. I think the Sullivan rule has a wholesome implication to help the news media report confused events. But I feel that unless the Sullivan rule is implemented with financial responsibility where they assume -- where they gamble for profit upon the freedom of American citizen and falsely accuse him of a crime, I do not believe then that they are entitled to any different --
William J. Brennan, Jr.: Well, I gather Mr. Watts, this is predicated primarily on -- that this purports to be an eyewitness account of --
Clyde J. Watts: Yes, sir.
William J. Brennan, Jr.: --what happened by the representative of the Associated Press --
Clyde J. Watts: Yes.
William J. Brennan, Jr.: --who says this is what he saw.
Clyde J. Watts: Yes, sir. Your Honor had the right on target. I could speak for a week and not answer anymore. He said, “I saw Walker assume command of the mob and led the charge”. The jury said, “He didn't”. Now that could be nothing other than knowingly false.
Byron R. White: If it's false?
Clyde J. Watts: If it's false. What the jury find was --
Hugo L. Black: What did General Walker state himself?
Clyde J. Watts: General Walker stated that --
Hugo L. Black: He did that far?
Clyde J. Watts: Alright, sir. There is a confederate monument. General Walker said that he arrived on the campus. So he --
Hugo L. Black: Did he say why he went there?
Clyde J. Watts: Yes, sir. He said he went there because he'd command and led the mob.
Hugo L. Black: Because what?
Clyde J. Watts: He had commanded the incident -- the situation looked. He was bitterly opposed to the concept of using armed forces for political purposes. That was his purpose solely in this --
Hugo L. Black: He opposed carrying out the Presidential Decree --
Clyde J. Watts: He was -- General Walker, if I could --
Hugo L. Black: I gather that's what you're saying?
Clyde J. Watts: He was not opposing -- he was not opposing the Presidential Decree. He objected in his language and in his testimony to bring 26,000 troops to Mississippi from --
Hugo L. Black: But who sent them there?
Clyde J. Watts: Sir?
Hugo L. Black: Who sent --
Clyde J. Watts: Who sent --
Hugo L. Black: -- who sent the troop there?
Clyde J. Watts: Oh! The troops were sent there for by the President of the United States. But as the Senate, he objected and his objection was completely --
Hugo L. Black: He went up there to object --
Clyde J. Watts: Sir?
Hugo L. Black: He went up to the place to object to the troops being there?
Clyde J. Watts: Yes, sir. As a former commander of the troops that are brought there, he knew the awesome impact of sharp federal bandits into the backs of helpless civilians. And he went there to protest 26,000 troops down in Mississippi.
Hugo L. Black: He went there to protest --
Clyde J. Watts: Yes, sir.
Hugo L. Black: -- in carrying out of the president's order.
Clyde J. Watts: Yes, he asked sir. He asked --
Hugo L. Black: Did you -- that's what he said he went there for?
Clyde J. Watts: Oh, no, sir. He said he went there to -- well, not in so many terms. He said he went there to protest the use of troops.
Hugo L. Black: But was that not the substance of what he said he went there?
Clyde J. Watts: Yes, sir. That's what he said, he went there.
Hugo L. Black: Try to prevent its being carried out?
Clyde J. Watts: No, sir. He didn't say he went there. Let's say I'm standing there. I act his actions, “Now, gentlemen just what is your purpose in going to Mississippi?” This is on page 13 of the blue brief. “I thought it was absolutely wrong to use military forces -- troops, American troops and strictly civilian problem. Alright, Mr. Watts let him finish and I wanted to see for myself exactly what happened. I wanted know first hand information. I did not trust the press reporting of it. In any forms, since I have been in law and I've seen that exaggerated out of all proportions, and I intended to see for myself. Now his testimony, Your Honor --
Hugo L. Black: Is that all he ever said to that?
Clyde J. Watts: Sir?
Hugo L. Black: Is that all he ever said about going there?
Clyde J. Watts: Well, there was some more testimony on the record but --
Hugo L. Black: And what is that?
Clyde J. Watts: And -- sir?
Hugo L. Black: I would--
Clyde J. Watts: What?
Hugo L. Black: -- suppose that you know whether the record actually shows but you said he went there to protest against the presidential order being carried out?
Clyde J. Watts: No, sir. In those -- even -- what?
Hugo L. Black: Not in those terms?
Clyde J. Watts: Now, they even by inference, he didn't say that.
Hugo L. Black: He didn't say that by inference?
Clyde J. Watts: No, sir. I don't so construe in his testimony. And he testified based --
Earl Warren: What did he mean when he said before this affair, “Rise to stand behind Governor Ross Barnett for Jackson, Mississippi. Now is the time to be heard. 10,000 strong men from every state of a union rallied to the cause of freedom, the battle cry of the republic. Barnett, yes, Castro, no. Bring your flags, your tents, and your skillets. It is time -- it is the time, now or never. The time is when and if the President of the United States commits or uses any troop, federal or state in Mississippi. The last time in such a situation, I was on the wrong side.” That was in Little Rock, Arkansas in 1957 and '58. This time, I'm out of uniform and I'm on the right side, and I would be there.” Now, isn't that something of a call to arms?
Clyde J. Watts: No, sir. I don't get unarmed because --
Earl Warren: 10,000 from every State in the union to come to a troubled area of that kind?
Clyde J. Watts: He was -- he felt very keen as I've suggested as a soldier that this was a misuse of military problem and I don't consider as was called upon. However, that was the basis on which this lawsuit was tried in order. In other words sir, they tried Walker in place of crime of action. The jury was charged of finding out did Walker lead the charge? Was it -- did that young reporter, when he led that charge, was he honest in saying that, “I saw him assume command and lead the charge. And was it published in good faith? That's what the jury was charged. The counsel for the Associated Press just saturated the record for these unfortunate and inflammatory statements. And --
Earl Warren: They are inflammatory and --
Clyde J. Watts: It is and I regret --
Earl Warren: -- and he told them all to come and told him that he would be there. And he was there and he did something, wouldn't that be an indication that there was some leadership in the affair?
Clyde J. Watts: Well, suppose --
Earl Warren: And not just -- and not just a bystander who was there to see what happened?
Clyde J. Watts: I agree with Your Honor. But there the question, did he assume command of this mob. That was the question. And we proved this jury conclusively, sir, that he did not assume command --
William J. Brennan, Jr.: Yes, but I suppose really, what you and I looking at the same conduct of General Walker, I might honestly believe he's leading something and he might not.
Clyde J. Watts: Yes, sir.
William J. Brennan, Jr.: He was there.
Clyde J. Watts: He was there. Yes, sir.
William J. Brennan, Jr.: And this was all going on?
Clyde J. Watts: Yes, Sir. I believe, sir. Yes, sir.
William J. Brennan, Jr.: So, I don't know -- I just wonder whether that establishes necessarily that the young reporter deliberately lied when he said he led them. He might very well have the impression of it.
Clyde J. Watts: Sir, the jury found without the young reporter being there. The found that Walker being there and subjected to a ruling cross-examination that they constantly hammered with all these incompetent statements had been made. The jury found that that did not -- that Walker did not assume command of that crowd. That he did not lead any charge against the United States marshals. Now, I don't know any other way to establish such a fact except to try it in two cases before a jury. Now, we're dealing not with -- whether this language was intemperate, whether it thrust him in the vortex of controversy. Anything else we're dealing with first the question, did he command that crowd and did he lead the charge? Was he falsely accused of a crime or was he actively accused of crime. And I respectfully submit --
Hugo L. Black: -- permit me to say it.
Clyde J. Watts: Yes, sir.
Hugo L. Black: It seems to me like statement that the President -- the chief just read to you to indicate that he went there and that he was doing best to lead and if he didn't lead and trying to frustrate the President's order, he then go as far as he wanted to go.
Clyde J. Watts: Well, sir, he testified repeatedly in many other ways. He has testified that he arrived and he would describe graphically in this big Texas has walked around the whole campus very slowly and let the students came up and said, “Here's General Walker. General Walker your leader. General Walker is not afraid of them.” He absolutely refused to have any connection with them whatever. Their witness, after witness, after witness that testified as I started to answer your cases to your question a moment ago that he came on the Mississippi campus from his -- there's a chart in the back of our brief, it's been oriented by the circle being around the confederate monument with the lyceum in the west, 300 yards away from the confederate monument. He came on the campus, walk around in the area of the monument for a while, came on to the flagpole which is half-way to the lyceum, moved over the football field then he went back. There's a highway patrol started to leave and someone said, “Governor Barnett sold us out”. And then for the first time, for the purpose of quieting the students down, he said Governor Barnett has not sold you out. This is not the place for violence. Violence was not in hand because our real enemies are over there in Cuba. That's what he actually did. And when he got down of the monument, he walked around again. Now here is the direct conflict of evidence. This young reporter, as I told you, told on reporters on the telephone that Walker arrived on the campus, made a the speech and led the charge against the U.S. marshals. Across the north side of the open which run this east from west. These four star witness of the Associated Press with a picture Reverend Dunkin Gray, who was all over the area all the time from the time Walker arrived on the campus until Walker made a speech on the monument. Reverend Dunkin Gray said there was no such charge of the --
Hugo L. Black: Why should he have made the speech there? It's not to frustrate the President's action unless he was trying to be the leader?
Clyde J. Watts: Well, sir, the reason he made the speech and his testimony is explicit on this under direct --
Hugo L. Black: I'm talking about what he said, he was going there for?
Clyde J. Watts: Alright, sir. Alright, he maybe -- the word lasting General Walker wanted was violence because he wanted it to appear absolutely unnecessary to bring 26,000 troops to Mississippi. He felt it should have been in Cuba and that was his argument across the board. And counsel made a statement that he was a racist. General Walker has absolutely no background and there is not one single on the record that Walker in anyway is involved in any racial conflict. Now, that is the statement that I have submitted completely outside the record. He did not go there for a racial purpose. He was there solely to protest what he said, was used a military force to the type of military that he'd lived with. That were -- as much as his life as his very sole and his brain itself. He went there for protest. Taking young Americans and using him against their fellow Americans.
Hugo L. Black: He went there to protest what the Commander-In-Chief of the American Army was doing, didn't he?
Clyde J. Watts: Yes, sir.
Byron R. White: He did?
Hugo L. Black: And he had right on the ground --
Clyde J. Watts: Yes, sir.
Hugo L. Black: -- while the fight it was on?
Clyde J. Watts: Yes, sir, he did.
Hugo L. Black: While the President was trying to enforce the law as --
Clyde J. Watts: Yes, sir.
Hugo L. Black: -- the population is made?
Clyde J. Watts: There are many people have advanced into many areas to protest what's going on. We said everyday or someone comes in and make a protest.
Hugo L. Black: The actual execution of the law?
Clyde J. Watts: Yes, sir. I said, may I hid in the protest after I excuse of the law by my concept sir. What he was protesting was the use of troops and that's --
Hugo L. Black: Which was the way they were executing the law.
Clyde J. Watts: Again, sir?
Hugo L. Black: Which was the way they were executing the law.
Clyde J. Watts: But as an American citizen and under debate robust uninhibited wide open which at some -- sometimes can be costly given. He was entitled I believe as American citizen to appear there and say, “Now I think it's wrong for my presence to use the troops to whom I have served, to come in to Mississippi when they're ought to be in Cuba.” I don't think there's anything wrong about that, sir.
Earl Warren: What do you have to say of this testimony of a deputy sheriff who was a -- as I understand it, was witness of the General?
Clyde J. Watts: One of our witnesses, yes, sir.
Earl Warren: After some of the crowd has asked Walker, if he would led them? He stepped down from the side of the monument and said, “Keep protesting and see if we can get closer.” He then started toward the marshals and the crowd of at least a thousand by that time followed him. This crowd was armed with sticks, rocks, Coca-Cola bottles, and other things as I have heretofore stated.
Clyde J. Watts: I'm familiar with that --
Earl Warren: Just a moment, please. They seem to have anything that they could get their hands on and when they got close enough, they would throw towards the marshals. When the front of this crowd which General Walker was with, got in about 200 feet of the marshals, they fired another blast of teargas and the crowd ran back with General Walker with them. At all times, during this, I was near in sight of General Walker and stayed inside of him until about 5:00 a.m. the next morning. On a number of occasions, Walker would walk toward the marshals or in that general direction and whenever he did, a large crowd would fall in behind and followed him. In fact, wherever marshals went, the crowd followed. During the time after the first march toward the marshals with Walker in or near, lead I heard different statements, many of which I cannot remember. But at one time in talking with group about the protest, they were making -- he said, “Good! Good, keep it up.” I heard people asking how to snap out or counteract the teargas and Walker told them to use water and right after that they got a fire truck and hose and begun to try to use that to stop the gas.
Clyde J. Watts: I say about that, sir. That was an unsworn statement, an unsworn statement of this witness that were procured by the Associated Press. We forced the witness to come to trial under oath. He stood there under the absolutely merciless cross-examination, one of the greatest trial lawyers of the southwest and convinced that jury to take out that unsworn statement out of him. That he was with General Walker every minute from the time he arrived on the campus from the time he left and had no time, the -- the General Walker participate one hour in the activities of the crime. The jury heard this same witness when he was confronted with these unsworn statements. I heard him answer news in the record and I will guarantee, sir, that that was his answer to that statement to the satisfaction of that jury who were completely and totally convinced that this was an absolute fabrication solely for the purpose of selling news about General Walker assuming command this mob and led a charged.
Earl Warren: Did he deny?
Clyde J. Watts: He denied his speech it.
Earl Warren: Has he mad made the statement?
Clyde J. Watts: No, sir. He admitted having made the statement to attorneys who --
Earl Warren: Did he deny the facts?
Clyde J. Watts: He denied the facts under oath extensively under the most vicious -- I wouldn't say vicious, but under the most impressive I'll say, cross-examination I've ever seen put on the courtroom by a man who knows how to cross-examine. And with that statement before the jury with this witness having confronted with that statement, he sat there and looked the jury in the eyes which no representative, no employee of the Associated Press did and he convinced that jury that they work that statement out of him and it was not true. Now, that's about his step of a trial proposition, if you can present in a court of justice alone. I submit respectfully if the issues in this case have been weighed in the scales of justice, they have been tried in the exclusive of adversary conflict twice in Baltimore and I do not understand if the prerogative of an appellate court and this Court have well stated --
William J. Brennan, Jr.: Mr. Watts, before you put down, I want to get back to whether I could see the issue in this case. This trial judge did say at page 72.
Clyde J. Watts: This is the record, sir?
William J. Brennan, Jr.: Yes, it's the record. “Since, I have determined that that there is no actual malice in this case. The question arises as to whether the rule of New York Times v. Sullivan was to prohibit the public official that covering damages for libel when there's no actual malice, should apply to a public figure such as plaintiff. If it does, then the entire jury verdict must be set aside and judgment entered for the defendant.
Clyde J. Watts: Yes, sir. In that --
William J. Brennan, Jr.: Isn't that not -- isn't that a finding by the trial judge that there's absolutely no evidence of Times malice in the case; that if there were, the whole verdict would have to be set aside and the only reason they didn't set aside on compensatory damages was that he concluded that a public figure was not a public official for purposes in New York Times rule.
Clyde J. Watts: I do not think so, sir, because I say, this was --
William J. Brennan, Jr.: Why?
Clyde J. Watts: -- this was a gratuitous statement by the Court in a letter to counsel in which he stated his stories. He never -- he made no stories --
William J. Brennan, Jr.: That's the old dictum or --
Clyde J. Watts: Yes. If you -- if want sir I consider in connection with the fact.
William J. Brennan, Jr.: Well, this rather embarrassing in your position, isn't it?
Clyde J. Watts: Oh, well if something that Court was carefully consider and then --
Byron R. White: If this is the Court -- let us assume the civil Court of Appeals that said the same -- held the same thing in affirming the reversal of a punitive damage award if had said. Assume that it said, exactly what the trial judge, I know it didn't -- I know it put it on a little narrower ground.
Clyde J. Watts: Well, Your Honors own target is a very tough question. Now, if the Court had said, that if Sullivan applies, there is no actual malice. The Court had said that. Under -- if the Court has said, let's make it specific. If the Court had said, “Under the Sullivan rule, we find there's no actual malice.Of course, we would be out.” But then I suggest Your Honor that it's up for this Court to find out what lower courts did. The courts, lower courts, left in the record a specific finding by this jury undisturbed carefully reviewed by the trial court, by two appellate courts a specific finding. Do you find that the statement represents the honest opinion on the record? Now, if that's still in there even though they did execute initial talk, even -- unless they gone home own to hold.
Byron R. White: What do you think -- let's just forget the New York Times a minute.
Clyde J. Watts: Alright.
Byron R. White: There's no question that you denied having award of punitive damages in that?
Clyde J. Watts: Right.
Byron R. White: Why?
Clyde J. Watts: Because we -- because in the language of the trial court, we did not prove that this statement was made that they aware or within entire, not reckless disregard of the truth, but with entire more won't care. And that was a result of a conscious indifference to the right and welfare of the parties. Now, the ruling --
Byron R. White: You don't think that has anything to do whatsoever with the honest opinion of the writer?
Clyde J. Watts: No, sir.
Byron R. White: Do you -- do you think that holding, throwing out punitive damages, doesn't do anything full of rugs out one of the jury's finding which you claim you still have?
Clyde J. Watts: Sir, I think if the appellate -- even if any of the three courts in Texas had in handed the full of rug out one of the jury's finding as this was knowingly false and in reckless disregard of the truth, they would have -- let say would have rescind it --
Byron R. White: If it set aside the whole verdict?
Clyde J. Watts: Yes, sir. They would have set aside the whole verdict.
Byron R. White: They would have?
Clyde J. Watts: But that would be -- yes, sir. That would be a judgment as distinguished in conversation. In simple language that we're dealing with and in resolving these things, every complicated question has a simple action and the simple action I can see is of course was talking and not working. And they actually entered an order finding that there is no Sullivan tagged malice. I wouldn't be here today.
Byron R. White: Right.
Clyde J. Watts: But why they merely entered in the statement and by way of a letter that he did, I do not consider that as in anyway affecting this specific finding that this was not the honest opinion of the writer and was not published in good faith. And I respectfully submit to this Court and when the news media, it relieve of responsibility, product liability for his news product that is sold for her, the minute that is -- that rule is accomplished then there will be no more copies in the press. I would then make this one last comment, sir.
Abe Fortas: Excuse me.
Earl Warren: Make it very brief.
Abe Fortas: General Rogers --
Clyde J. Watts: It would be very brief. I'm sorry, sir. That one thing I can do is get brief.
Abe Fortas: May I ask you one question?
Clyde J. Watts: Yes, sir.
Abe Fortas: General Rogers said that it's customary in Texas to have rulings in the form of a letters.
Clyde J. Watts: I know of not --not if I'm a Texas lawyer but I know of no such customs.
Abe Fortas: What is this letter anyway?
Clyde J. Watts: It's just an expression to counsel of the court's opinion. Now the Court said --
Abe Fortas: Of course, it was a -- it wasn't an argument -- but it was an explanation of a ruling.
Clyde J. Watts: Yes, sir. It was direct to the counsel as I say the Court is talking and not deciding. That is applied in --
Abe Fortas: Was it given to the clerk for entry as part of the papers in the case?
Clyde J. Watts: I don't think undoubted it was. Yes, sir. Now, I was going to make this last comment. If -- yes, sir.
Earl Warren: Wouldn't -- wouldn't that have some effect if he used to do --
Clyde J. Watts: Yes, sir.
Earl Warren: -- if he filed this with the Court --
Clyde J. Watts: Yes, sir.
Earl Warren: -- as his -- as a record of what you are doing in the case that it is --
Clyde J. Watts: Yes, sir. It's something that this Court she -- she look and I'm sure will consider. But it is not a judgment finding that the special issues that are left in the case were improperly returned for the jury. And I have this -- any judge in Texas made a finding that we vacate special findings. As I remember the 1, 3, and 5 that find falsely. It finds that it is not that honest opinion of the writer and it is not published in good faith. Had any of these courts which had the responsibility, the judicial responsibility, of weighing the evidence had bound there was no such evidence rather than just talking which they did, they had some embarrassment -- embarrassing conversation. But I submit respectfully to this Honorable Court, that it is conversation and not judgment and if the record is overwhelmed that this man that said, I saw Walker assumed command of the mob and led the charge from six feet, didn't see it.
Earl Warren: Very well.
Clyde J. Watts: Thank you, sir.
Earl Warren: General Rogers?
William P. Rogers: Mr. Chief Justice, may it please the Court. I'd like briefly to answer some of the things that been said here.
William J. Brennan, Jr.: Well, I hope Mr. Rogers you're going to tell us why you didn't ask for a -- specifically for a New York Times charge, you didn't?
William P. Rogers: Well, Your Honor, the judge -- it was conceded to begin with in the trial that he was a public figure, that walk was a public figure.
William J. Brennan, Jr.: Well, I know but you did not ask expressly, did you, for New York Times charge that was given?
William P. Rogers: No, because -- no, the Court ruled that the New York Times doctrine did not apply to a public figure like Walker, as he said in his opinion.
Byron R. White: But he didn't say that lacks at the trial.
William P. Rogers: Well, we --I think we made the argument at the New York Times doctrine applied. I don't think we asked the jury because I it was conceded--
William J. Brennan, Jr.: Well, I don't see how you could have made the argument, frankly, Mr. Rogers without saying New York Times apply and we request an instruction which the Court with New York Times rule. That's what usual way of doing it.
William P. Rogers: Well, as I say the -- I think that the reason trial counsel didn't is because there was a concession that Walker was a public figure and it was understood that the Court was not going to rule that the New York Times doctrine should be extended to people like General Walker. And that was the opinion --
Earl Warren: But where did you get that impression from where -- when did the judge make that statement that he was not going to consider this --
William P. Rogers: Well, I'm not sure. I think he did in his opinion. There was big surprise -- yes.
Earl Warren: Well, I know but during that trial judge --
William P. Rogers: I'm not sure about the timing of it --
Earl Warren: -- where it would lead you to believe that it wasn't necessary for you to ask for or it is -- New York Times instruction.
William P. Rogers: Well, I suppose also that just to speak about counsel who tried the case. I suppose that that's the time he felt that it was a matter of law and so he didn't asked for the instruction. I'm not sure of that. I would, if I may -- I'd like to answer some of the questions that have been raised. First, in answer to Judge Fortas' question, the letter opinion is an opinion of the Court and it was filed in the Court and I just checked on Mr. Guyton in Texas and he said that is the -- a traditional way, customary way of filing opinion of the Court. Secondly, and I'd like to refer to the Chief Justice's questions of Mr. Watts about a Deputy Sheriff Whit. And you asked, Mr. Chief Justice, that if he had testified about that statement? Now, the statement was taken about two months after the events. Each page was signed by the deputy marshal -- Deputy Sheriff, his name is Whit. And when he testified for General Walker, he was asked these questions and they appear on page 280. “I hand you what purports to be a statement.” “Yes, sir”. “Is that your signature on each page?” “That's my signature; that's my statement”. “Did you make this statement?” “I did.” “Did you, in making that statement tell the truth as you knew it at that time?” “The best I knew how.” “Do you think at that time you made the statement if the matters you now put in that statement were true and the best of your knowledge and belief?” “Well, I told it the best I could think of it then”. In addition to that statement, there is that story written by Mr. Gregory of the merit, a merit in a newspaper, which is a local newspaper which we cite in our brief and it points out that Walker led a charge against the marshals. And it points out the good many other things that were said in the AP story. In addition to that, the UPI reporter who has said testified, and he testified at page 963 in the record, and here's what the UPI reporter said, “After the speech, Walker stood there for a short time. He's talking about the speech he made at the monument. Then he turned to his left and sat down to the monument to face the lyceum. That's the administration building. It took several steps up to walk and then when the two men caught up with him and moved up on the side walk and about that time, the people who would listen to Walker moved in behind him and followed with him, in behind him. And then a solid line formed across the campus with the general and these two people in the middle. They moved towards the lyceum but then I lost sight of them as they near the flagpole and about that time, teargas was fired. I would also like to comment briefly about Justice Stewart's question. The articles complained of in this case, appeared on October 2nd and 3rd. General Walker's arrest was October 1st. There was nothing in the record at all about the arrest because it was obviously irrelevant. Counsel has suggested that that the reporter, the Associated Press, before they trigger the arrest. Mr. Chief Justice very properly points out, what triggered the arrest was General Walker's conduct, not the Associated Press reporter's story.
Abe Fortas: Mr. Rogers, was there a demand for retraction served on the Associated Press here?
William P. Rogers: No, there was not, Your Honor.
Abe Fortas: In no time?
William P. Rogers: No, not to my knowledge. I think that's correct, at no time.
Abe Fortas: Was there -- do you draw any distinction between a situation in which the daily press has to report a story in hot blood so to speak in a situation in which like, let us say Time against Hill, there is an opportunity for investigation with respect, I have to ask you now the question that goes to theory at this?
William P. Rogers: Yes, I think there is a real distinction and I think the press is under the gun in the situation like this. As a matter of fact, though the UPI reporters said the same thing and Gregory said the same thing, but I don't think that the press has more of an obligation if it has a long time to check the facts. In this case, though the facts were perfectly clear, there was nothing --
Abe Fortas: I -- I don't know. I suppose that it's arguable in many kind of a situation that Mr. X did not lead the crowd but the crowd followed Mr. X.
William P. Rogers: Yes.
Abe Fortas: And I suppose that there's that kind of a subject development that may enter into this one?
William P. Rogers: Yes, sir. I think though, Mr. Justice Fortas, that in a situation of this kind, you have to ask yourself, was there anything in advance of the story itself that would cause anyone to doubt that the accuracy of the story? And here, everything that Walker said leading up to the events suggested that the report was accurate. In other words, there are may be situations where the charge is so serious. What's said about the men is so serious when he about punitive check on the accuracy of it that the press has a greater responsibility? Here, though, I think that the events leading up to the right themselves what General Walker said would indicate that he fully intended to be the leader of the writers. He said as much on the way -- on the way to the campus. And I think in -- just like to enclose by saying that the trial judge made it perfectly clear that he was ruling on malice as defined in the New York Times case. Justice Brennan and Justice White both point that out. I think that there can be no doubt about what the trial court ruled. In fact, it ruled very clearly that malice as defined in New York Times was not present in this case. That's why I determined that there is no actual malice in the case. The question that arises as well as the rule of New York Times against Sullivan should apply to a public figure such as plaintiff. If it does, then the entire jury verdict must be set aside and judgment entered for the defendant. I don't --
William J. Brennan, Jr.: But Mr. Rogers, what is going to do with the Court of Appeals could -- that doesn't seem it -- it sustained trial judge. But it does sustain, this is at page 1547 and 1548.
William P. Rogers: Uh hum.
William J. Brennan, Jr.: I think that's in 1548?
William P. Rogers: I don't think it's -- Your Honor, I know this is quite as clear as the --
William J. Brennan, Jr.: Well, what it says is that -- the Court of Appeals says is, in view of all the surrounding circumstances. The rapid and complete turn of events in case in question is in light of all the evidence, we hold that the appellee prove -- found to prove malice as defined and the trial court was correct in setting aside such findings. I don't know what that means?
William P. Rogers: Well, Your Honor, I think that means as defined in the opinion of the Court and the opinion of the Court says, that he defined --
William J. Brennan, Jr.: Well, the only definition in find -- in special verdict number 4, the trial judge read that out of the case and Court of Appeals doesn't seem put the fact in this case.
William P. Rogers: Yes. I think the Court of Appeals is taking -- taking the course of the charge that you were cited though on page 72 and it's affirming that -- to that finding. And that finding is that there was no --
William J. Brennan, Jr.: In fact -- in fact, affirming setting -- taking out under the case?
William P. Rogers: Yes. Because I --
William J. Brennan, Jr.: I noticed -- I notice the Court of Appeals cites two other cases and trial judge cited both the Texas cases cites a third Texas case because not cite New York Times.
William P. Rogers: Like I think the appellate court supported the trial court and felt that the trial court had ruled that New York Times malice was not in the case and therefore had no reason to specifically refer to it.
William J. Brennan, Jr.: This because he was not a public official?
William P. Rogers: That's correct.
Earl Warren: General Rogers, did I understand you to say that General Walker was arrested the day before this article came out?
William P. Rogers: That is correct, Mr. Chief Justice.
Earl Warren: I wonder if you could -- you won't delay the case now but I wonder if you could give us that citation from the record for that's disclose --
William P. Rogers: That is -- that is in our reply brief, Your Honor.
Earl Warren: Where is it is in your reply brief? Thank you very much.
Clyde J. Watts: Could I respectfully call Your Honor's attention to page 1229.
Earl Warren: I know. I think -- I think we've concluded the argument.
Clyde J. Watts: I'm sorry, Your Honor.
Earl Warren: I'm sorry. The next one is Number 37, Curtis Publishing Company, Petitioner, versus Wallace Butts. If you should like to answer the little memo that Mr. Rogers gave us, you may do so.
Clyde J. Watts: Well, thank you, sir.
Earl Warren: As to whether --
Clyde J. Watts: Thank you, sir.
Earl Warren: -- whether it could before or after.
Clyde J. Watts: I appreciate that sir very much.
Earl Warren: Yes. Mr. Wechsler?
Herbert Wechsler: Mr. Chief Justice, may it please the Court. This case which is here on certiorari to the Fifth Circuit raises another variant question of the scope of the rule declared by the decision in the New York Times Company v. Sullivan. This was a libel action instituted in the Northern United States District Court for the Northern District of Georgia by the respondent claiming $5 million punitive and $5 million general damages for an article which appeared in the side the evening posts of March 23, 1963. That article entitled, “The Story of a College Football Fix” and subtitled, “A Shocking Report of How Wally Butts and ‘Bear' Bryant rigged the Game Last Fall”, purported to tell a story of one George Burnett, an insurance salesman in Atlanta who claimed to have been accidentally, cut in on a telephone call from Atlanta to test the loser, cut in while he was making local call. And thus, to have overhead the conversation between Mr. Butts, who was then the Athletic Director of the University of Georgia, former football coach and Paul Bryant, who was then as he, of course, he's now the Head Coach of the University of Alabama football team and the Athletic Director. The article --
William J. Brennan, Jr.: Mr. Wechsler, let me -- am I Mr. Wechsler, at the time of this alleged incident occurred the game fix. He was not the coach, was he?
Herbert Wechsler: Mr. Butts had ceased to be the coach some 18 months before --
William J. Brennan, Jr.: Before.
Herbert Wechsler: -- and was now the Athletic Director of the University. Mr. Bryant, of course, was the coach of the --
William J. Brennan, Jr.: Yes.
Herbert Wechsler: -- Alabama team. The article in no uncertain terms reported Burnett's statement that he had overheard Bryant, Butts I mean, responding to Bryant's question, “Have you got anything for me Wally?” Could proceed to give him in detail statements about the Georgia players' formations and place which he inferred was information that Butts was giving him about what Georgia was going to do in the forthcoming opening game of the 1962 Season which was scheduled to take place some nine days thereafter. The telephone call that Burnett claimed to have heard was on September 13, 1962 and the game between Alabama and Georgia was to be paid -- played on September 22nd. At the end of this conversation or in the course of this conversation I suppose recorded. Bryant would ask Butts specific questions and Butts would answer, “I don't know”. And Bryant would say, “Can you find out for me?” And Butts would say, “I'll try.” And then at the end of the conversation, Bryant asked Butts, if he would be home on Sunday. And Butts said that, he would. The importance of that last statement being that it was proved by records of the telephone company that a September 13th call did take place from Bryant at the office in Atlanta, Georgia. That Burnett had been trying to get on the phone to the Alabama or Athletic Office in Tuscaloosa. That -- and secondly, that on the following Sunday, there had been a telephone call of over an hour duration from Tuscaloosa placed by Bryant and charged to his credit card to Wallace Butts at his home in Athens, Georgia. Now, they say again the publication on the basis of Burnett's story charged and they editors of the post affirmed the charged in an accompanying editorial statement that Butts and Bryant had fixed or rigged this game by Butts giving Bryant confidential information about the Georgia plays. The case in the District Court proceeded. Suit was filed almost immediately after the publication. Case proceeded on the defendant's plea of truth and that was apart from inconsequential denials. That was the issue in the trial of this case below the trial court charge in the conventional libel terms that the burden of proving truth was on the defendant. Proof -- truth of the -- what the Court called the “sting of the libel”, viewing the sting of the libel as a charge that Butts had given Bryant information calculated to influence the result of the game either to influence to won or lost or to influence the score by which the game was brought. I think the judges' words were calculated or likely to influence the result of the game.
William O. Douglas: Was there a suit by Bryant also?
Herbert Wechsler: There was, sir.
William O. Douglas: But that's not here.
Herbert Wechsler: That's not here. Bryant brought suit in Alabama --
Abe Fortas: This suit was before --
Herbert Wechsler: -- shortly after.
Abe Fortas: -- this suit was before New York Times?
Herbert Wechsler: The suit was brought --
Abe Fortas: I mean the trial.
Herbert Wechsler: -- tried, verdict before New York Times. Yes, Mr. Justice. The verdict, I might say, was $60,000 --
William O. Douglas: When you say before the New York Times -- before the --
Herbert Wechsler: What New York Times decision before this Court's decision in New York Time.
William O. Douglas: But it was in New York Times case was being tried at that time?
Herbert Wechsler: Yes, sir. It was pending. It was pending in this Court actually at that time. The verdict as I say was $60,000, general damages; $3 million, punitive damages. And on motion for new trial addressed to the verdict, the District Court reduced the $3 million punitive damages to $400,000 on remittitur which the plaintiff filed so that the verdict entered against Curtis is a verdict for $460,000. Now, I say the case presents a variant of the New York Times problem but I must deal first with the question, whether that issue is in the case. The point was raised immediately after the New York Times decision by Curtis on motion for new trial filed under Rule 60 (b). This actually was a second motion, 60 (b) motion that Curtis filed. The first one being based on newly discovered evidence. The District Court ruled on that motion on the merits and held that New York Times did not apply on the ground that the Athletic Director was the employee of the athletic association and thus, not within -- not an official within the ambit of the Times rule. I'll come to that, of course, in a moment. On appeal, however, the majority of the Fifth Circuit of the court below did not pass on that submission but rather held that Curtis had waived the New York Times point, if it has that point, by not raising it earlier than the 60 (b) motion. And in reaching its conclusion as to waiver, the Court gave weight to the fact that among the counsel for Curtis in the Georgia case or the counsel cooperating in the Georgia case, were Alabama counsel who had also been counsel for the Times in Alabama. The Embry-Beddow Firm so that these lawyers knew of the submissions that were -- had been made in the petition for certiorari and in the argument of Times. Here, on that ground it was concluded by the majority below that there is an actual waiver of any right to invoke the benefit of the Times rule in this case.
Abe Fortas: Mr. Wechsler, what -- when was the -- exactly when was the 60 (b) motion filed?
Herbert Wechsler: When was --
Abe Fortas: Was it after appeal had been taken from the trial court?
Herbert Wechsler: It was just -- I can give you the date of the notice of appeal and also that was January 24, 1964 and the 60 (b) motion was February 28, 1964, the first 60 (b) motion.
Abe Fortas: And what was the --
Herbert Wechsler: The second motion was the amended 60 (b) motion invoking Sullivan was March 23, 1964.
Abe Fortas: That was the first time that Sullivan was invoked?
Herbert Wechsler: Yes, sir.
Abe Fortas: And do you -- do you have convenient at hand or the date of our decision in Sullivan?
Herbert Wechsler: March 9, 1964. The case was argued incidentally, Mr. Justice Fortas, January 6, 1964, the petition for certiorari had been granted the previous January of 1963.
Speaker: Was there a constitutional claim made directly in the trial court?
Herbert Wechsler: No.
Speaker: Of no kind.
Herbert Wechsler: No constitutional claim was made in the trial itself. There was no request for an instruction that would raise comparable points. The first constitutional claim asserted by the defendants of anybody in this lawsuit was on the first motion for new trial attacking the verdict. There, the $3 million verdict was attacked on First Amendment grounds and quite independently of Sullivan before Sullivan. And that point, I think it's perfectly claimed as Judge Rives very strongly emphasized below is in this case beyond the doubt. I mean, if it is a point that there are constitutional objections to the magnitude of the verdict part for any issue privilege as to publication.
Byron R. White: Mr. Wechsler, as I recall your submission up here in New York Times, it was principally that First Amendment either filed a libel suit or it didn't and you said, it did. Is that right? Am I wrong with that? You didn't -- you didn't make an argu -- did you make an argument that appears similar to what the Court finally decided?
Herbert Wechsler: Well, see now I'm put to answer that. I certainly did not explicitly urge that liability be maintained, defended sustained, conditioned on a privilege defined and the terms that the Court find the privilege in Sullivan. There is a part of the argument, however, which was that if our claim for total immunity was not sustained that some accommodation of the interest in the --
Byron R. White: But your particular argument was the total immunity argument?
Herbert Wechsler: Yes, and certainly in the oral argument that was true. And on the brief, there is a section as I recall but the -- I certainly would not submit that anybody reading our brief in New York Times would perceived in it the opinion and decision of this Court in that case. And yet, the suggestion below really is that anybody who is familiar with the petition for certiorari ought to have been aware of what was going to happen here when the New York Times case was argued properly.
Speaker: Well, at least the brief would have put them unnoticed if there was a First Amendment?
Herbert Wechsler: Yeah.
Speaker: Claimed some kind --
Herbert Wechsler: Right.
Speaker: -- the circuit.
Herbert Wechsler: And -- and I don't gamble about that. The simple fact in this lawsuit was that the trial counsel representing Curtis, believing in their plea of truth, did not consider that the existing law gave them any claim of constitutional privilege and they will not dispose to do any legal experimentation in the trial of the case. That is the honest and candid fact to the matter and that the result of it is that we're out to fail -- for failure to anticipate the Times ruling then we're out. But I submit that is not the law and that the decision of this Court made perfectly plain that in the absence of special circumstances a change in law whether it would be statutory or constitutional or decisional, whether it be state law or federal law, may be invoked on direct attack on appeal, and we do invoke it that this Court has imposed that rule on the state under the Supremacy Clause. I should suppose it would be quite plainly imposed on the United States Court of Appeals. The District Court --
Abe Fortas: Do you consider the public official --
Herbert Wechsler: Pardon, sir?
Abe Fortas: Do you consider the public official on the New York Times question a question of law or in fact to --
Herbert Wechsler: No. I consider the question -- I can certainly consider the question of law --
Abe Fortas: You don't think it's something that the jury has to decide?
Herbert Wechsler: Unless the -- unless there is contrariety in evidence as to the circumstances of the individuals to the nature of what he does or -- but I consider that the issue whether the privilege applies is an issue of law and indeed an issue of constitutional law. Indeed, but I may pass beyond the waiver point to the merits of the cause on which I might say to the Court that only two judges below have passed Judge Morgan, the District Court, who ruled against us on the merits and Judge Rives dissenting in the Fifth Circuit who ruled with us on the merits in the view that New York Times should be deemed to apply. Now passing to the merits, I should first state what the facts are that bear upon the issue as Athletic Director. The record shows that Butts was in general charged of the athletic program of the University of Georgia, subject as to policy direction to this athletic board. Well, if athletic association nominally board in conventional lingo which in turn was responsible to the President, Chancellor and Regents. It was a corporation introduced into the Atlantic management picture on a pattern that many universities have adopted. The main motivation for it being that it freeze contracting from state audit and other red tape limitations that stand in the way of the operation of college athletics on the big time business basis college athletics now to proceed. I say again as to Butts' position, he was appointed by this association, fitting into the picture of university management. In the way that it did, he was paid by the association with slight addendum out of university funds that I take it that had something to do with preparing a way for getting in the pension. Of course Georgia was a state university, the Regents are regarded and treated explicitly declared to be a department of the state government, the Chancellor and President or indubitably state officials and the athletic association has a majority of faculty on it who are chosen by the president of the university, complying thereby incidentally with the standard of the athletic association and particularly of the Southeastern conference of which -- which Georgia is a member. Now, we say quite simply that running the athletic operation of a state university puts a pressure in a position where criticism of his official conduct ought to be considered within the scope of the First Amendment and therefore, within the scope of the New York Times privilege.
Abe Fortas: Suppose you've been the quarterback of the team instead of the coach?
Herbert Wechsler: And a comment related to its quarterbacking?
Abe Fortas: No, exactly the same facts. You called mister -- now this man's name is and told him what to plays or the particle alleged that he called the coach of the other team and told him what to plays were.
Herbert Wechsler: Well --
Abe Fortas: Whom exactly the same facts but that instead of being the coach, he was the quarterback. It's the --
Herbert Wechsler: Well, I -- I think it would distort the concept to regard the quarterback as an official obviously.
Abe Fortas: In other words, you think that New York Times would not apply in that suit?
Herbert Wechsler: Oh! I put it -- I say it would distort the concept of public officials but the --
Abe Fortas: I noticed that you phrase it carefully.
Herbert Wechsler: But I wish to reserve very strongly the proposition, Mr. Justice Fortas, that the New York Times rule is not to be envisaged as a limited ru -- a rule limited to situations in which the complainant is a “public official” within a characterization would be given to the context of --
Abe Fortas: Instead of us were -- what you're really coming back to is the absolute immunity doctrine?
Herbert Wechsler: No, I'm not talking about any absolute immunity doctrine at all. I completely accept as I must the conclusion of the Court in Sullivan that to the extent that the Constitution imposes limitations on state imposition of liability for libel. The limitation that it imposes is a requirement that the plaintiff proved that the statement was false and it was uttered by the defendant with knowledge of its falsity or with recklessness as to whether it was true or false. That --
Abe Fortas: I understand that. But you have applied that to prevent suit by anybody regardless of the public official or public position doctrine because that's -- if you take my illustration of the quarterback or let's suppose that that was a substitute spent the entire season on the bench whether he knew what the plays were. And exactly the same facts or I suppose that -- would you argue there that New York Times should provide immunity?
Herbert Wechsler: Well, I -- may I give you a somewhat extended answer to that because it's the heart of the case. I say that the mode of analysis is the one foreshadowed in the Court's delineated and foreshadowed in the Court's opinion in Times. That the first question to be faced is a question whether the publication, whether the utterance, is an utterance with which freedom to publish which the First Amendment is concerned with which is our concern to the First Amendment, to the purposes of the First Amendment. I come back to what you said in the argument of -- in question, the 150 you remind counsel what you -- was starting with the First Amendment and that's where I started. And now, I don't mean to depreciate the difficulty and the problems this Court must face in deciding whether or not utterances, expression to the particular kind are or are not within the scope of the protection that the First Amendment as it ought to be interpreted confers. This is an area that can be an area of enormous difficulty. It has been -- it's relatively young and the jurisprudences of the Court being only 40 years old or so. But given that difficulty, it seems to me that the question must be answered as a legal question that because of the subject matter of this publication, freedom to speak published is within the scope of what the First Amendment is about. Now, if the answer is favorable to that it is within the scope of what the First Amendment is about. That it seems to me that the considerations that led the Court in Times to conclude that strict liability is offensive to the constitutional guarantee that some amelioration of strict liabilities be at the statutory liabilities of the sought that had been imposed in many different areas or be at the 120-year-old rule in libel that imposes strict liability. That such strict liability is because of their inevitable effect on people who would publish must be mollified and the principle of mollification, the limitation of liability to knowing reckless falsehood seems to me precisely responsive to the conflicting values that are involved. As I said in my brief, it seems to us that that rule is in itself an accommodation of whatever public interest is being involved to justify the liability or suppression on the one hand and the claim of freedom on the other. Now, it's less clear to me that the First Amendment is at all concerned with the gossip columns about who slept with whom in what hotel room three nights previously. And well, I have no doubt that this Court may have to face claims of privilege for such publications on First Amendment grounds. If I should not be surprised to see the conclusion reached that the First Amendment has nothing to do with that type of publications.
Abe Fortas: Yes, but I -- but taking in that today, I suppose that the controversial exception of pornography, the rule that you have just suggested would cover everything that's published?
Herbert Wechsler: Well, I would be the --
Abe Fortas: It depends of our decisions made.
Herbert Wechsler: -- I would be the last to wish to impose limitations on human curiosity and I think that in taking that view, I speak in the constitutional provision. First Amendment was concerned with the nurturing of the human mind by discourse and communication. But coming back to your concrete case about the football player, who betrays the team, I should think given the many years that it seems to obtain nationally about the subject of football and the loyalties that are involved and the place of athletics in university programs. All of which we've allude to in the brief with the best materials we could find, argue for the privilege in that situation.
Abe Fortas: Yes. So, the -- what you've come down to, Mr. Wechsler, is that you would require the New York Times standards to be met in any area covered by the First Amendment regardless of the characteristics of the person who is liable, that is to say whether he is “a public official or public figure or not?”
Herbert Wechsler: Yes, sir. Now, I should have -- I should say, of course, that in this case, we believe that we should prevail on narrower grounds and that the decision in Rosenblatt is indistinguishable in any principle sense from the decision we ask for here. There you had a Director of Skiing Area. Here, you have a Director of Athletics of a state university and realize that Rosenblatt didn't -- wasn't an ultimate holding for the plaintiff but it did send the case back. And the only theory on which we say that went fact is that if Rosenblatt established that he was in charge of the area that then it had to face the charge privilege. Now, I know I should also have said, Mr. Justice Fortas, in answer to your -- final answer to your question that I do very strongly rely on Time against Hill -- on the decision on Time against Hill and supporting the general thesis that I advanced. Although, I realized the reservations in the Court's opinion there that issued in this case and others like it, deliberately and specifically left open. I nevertheless suggest that the very, very consideration that led the Court deeming that publication to be within the realm of First Amendment protection to be something that the First Amendment was concerned about. Telling people about the new play that or relationship to an actual episode in human life, a very logic that led the Court then to precede the necessity for New York Times kind of privilege and it seems to me, and I repeatedly reply in any situation whether is that type of public interest in the publication. And I would have as a final thought that this doesn't set the law quite as far adrift as it might seem to because the issue is very close to the issue that state courts have confronted under the fair comment defense in asking the question, whether this is a matter to which the privilege of fair comment applies so that there is a body of law, a body of thinking, judicial thinking that will be relevant in working out this subject in closed cases. For example, we have a fair comment case in New York that's cited in the brief that involved a high school football coach and the Court just -- and no doubt that the communities entrust in the performing to that high school football coach was something that could be published about. What we do say is that the conventional limitation on the fair comment rule that limits its availability to facts accurately states it's that it adds nothing to the plead of truth really, does not comport -- cannot comport with the policies of the First Amendment.
Potter Stewart: Does the fair comment rule typically in -- under the various states related to the expression of opinion rather than to the reporting of facts or am I mistaken about that?
Herbert Wechsler: No, you're quite right about it but the -- any judgmental statement like betrayal would I think potentially be within the fair comment rule, except that the rule is generally limited to comment on facts truthfully stated.
Potter Stewart: Yes.
Herbert Wechsler: So that unless you couple it with a plea of truth as to the factual statement, it avails nothing and if you have got a plea of truth as to the factual statements, you don't need it. That's I think the essence of still courts have confronted the question, what is the legitimate subject of fair comment? And it's that body of judge made law that I point to us helping you guide judgment in the development of this First Amendment Clause.
Abe Fortas: Well, I suppose that realistically anywhere where it has legal effects won't matter. There is a distinction between the sort of hot blood story which you had in the preceding case and a situation like this were in effect the publication is the originator of the story and the investigator and plenty of time to write it and investigate it. And I suppose that realistically, there is differences to the standards to which a publication can be ill with due regard for safeguarding the values of the First Amendment.
Herbert Wechsler: Yes, that's certainly a reasonable distinction. But I would suggest this, Mr. Justice, even in the operation of magazine publication. There comes a point where judgment has to be made. That the story has been adequately investigated to satisfy the publishers that it should be published. And how far it is prudent? Given the First Amendment interest and the weight of that interest, how far it is prudent to so cast the scope for the privilege than any jury second guesses that invited the second guess to every publisher as to whether the investigation was adequate or not, that's a question that would give me some pause. And I think the great virtue of the New York Times privilege as defined in that opinion is that it faces the question as essentially question in good faith of the publisher. Now normally, publishers functioning in good faith had no interest or motive to publish false. And it certainly it hasn't been established I think either that the history of strict liability has done a great deal for reputation or that the standards of the American Press to have modified in dealing with public fig -- officials since the decision in New York Times. I think press is functioning as it has before and --
Abe Fortas: And if the doctrine of strict liability has in fact resulted in the suppression of liberty?
Herbert Wechsler: Yes, I think it had. And I think it is been controlled in the suppression of truth.
Abe Fortas: You think it has?
Herbert Wechsler: Yes, I do indeed think it has. As matter of fact, if I may say a word in closing, I invite attention to this bracket as a perfect illustration of the problems that confront a publisher if he must show in a plea of truth, liability established truth, assume the burden of proving truth or else face liability. If you study this charge, I think you find for example that, if the jury is unpersuaded then our statement was true. Then -- and then face off to the punitive damage question, face off to the malice question, they face off to it on the theory that the publication was false. Well, obviously, we know our top people testified that we know that this publication hurt Butts. How could you publish a thing like this and not expect you to hurt the subject of it? We publish it because we believe it was true. Well, here's a built in case of malice. Now, the position of the jury may well have been that it was uncertain whether this was true or not. It could have been uncertain about the telephone calls. It's conceivable to made any -- it could have been uncertain as to the -- as to the whether Burnett really hurt this or whether his notes which are in the record and I urge the Court to look at them. These are the notes that were in evidence at page 1075 of the record. Do these notes indicate that important information was conveyed or not? Well, there were six football coaches who testified, four of them testified. They thought this information was helpful to an opposing coach. Two Georgia assistant coaches said, “No, there's nothing here that would help anybody. Mr. Schroder was a great football player, took everybody to the traces on what these various formations are. My life was spent on happily on the law library and I can't say that I am able to follow even after a careful study, these explanations in the record. But when I read that two of the coaches say that this contained the main formations that Georgia used in the game and plan to use, I can think that this is hardly a fabrication and when I read at the end that Bryant was going to call Butts on Sunday and then find on the record that following Sunday he did call him and all that came out only after the university investigation of this whole matter had begun then I am able to view what is even a possibility that this thing was a fabrication. But did the jury -- was the jury uncertain whether the information really helped Bryant, the great coach? It may have helped him only by telling him that it was nothing new that he knew nothing, didn't know. But it would be enough to explain the jury verdict that contrary opinions as to whether the information helped Bryant or not, left them on a state of uncertainty. And then on the malice charge, I don't see how they can escape finding malice if they must approach that on the assumption that the statements were false. May I reserve my few minutes?
Earl Warren: You may. Mr. Lockerman.
Allen E. Lockerman: Mr. Chief Justice and if it pleases the Court. My partner, Mr. Schroder and I will divide this argument. I will speak briefly and address my remarks only to the question that is to whether Curtis waived any constitutional claims that may have had. Mr. Schroder will argue the merits of the case and whether or not -- and the reasons why Times v. Sullivan does not apply to this case. We contend that Curtis did in fact waive any constitutional claims that it may have had. The Court of Appeals held among things that Curtis did in fact waive those claims knowingly and that they obviously decided upon another strategy defense which they used. Now in reaching its decision, the Court of Appeals followed precisely the guidelines that have been fixed by this Court in determining whether or not there has been a waiver of a constitutional claim. This Court held in the case of Zerbst v. Johnson or Johnson v. Zerbst, I believe it is, decided in our brief that the guidelines for determining whether waiver has occurred is the intentional relinquishment of a known right of privilege and this Court said in determining whether the right is known. The Court expressed the need to examine the particular facts and circumstances in the case. Now, does the Court of Appeals also cited in his decision upholding -- holding wavier? This Court decision in the Yacus case, Yacus v. United States in which this Court said, “No procedural principle is more familiar to this Court than that a constitutional right may be profited in criminal as well as civil cases by the failure to make any timely assertion of a right before a tribunal having jurisdiction to determine it.” Now, what are the facts which -- and circumstances which brought the Court of Appeals to its decision that could just did waive any constitutional claims that they may have had? They are simple. They are clear. We said they are convincing and they are as follows. In early 1963, before the article involved in this case was published, Curtis Publishing Company published in article concerning Paul Bryant, the coach of the University of Alabama. He sued Curtis on the basis of that article and on February 26, Curtis filed his defensive answer and pleadings in that first Paul Bryant suit. And Mr. Strubing here, general counsel for Curtis was in the Alabama case along with Mr. T. Eric Embry by the time of Beddow, Embry and Beddow and as mentioned by Mr. Wechsler, that prime was at that time counsel in Alabama for the Times in Times v. Sullivan. At that particular time, the Supreme Court of Alabama had already decided the Times case and it was on certiorari to this case. The Court of Appeals pointed out in its decision that in the certiorari, Curtis made its First and Fourteenth Amendment claims identical to those which they are asserting here. Now, they filed that First and Fourteenth Amendment claims in the federal court in Alabama in that first suit. In addition to that, they also filed the public man defense or claim. Now, we have in Georgia a statute, a public man statute privilege which I will point out in just a minute that they did not even apply as a defense in this case. Now that was on early February, February 26th, one month later, approximately on March 23, 1963, the article that is here involved in this case was published by Curtis in which they called “Wallace Butts, Paul Bryant corrupt” and that they “fixed and rigged” the 1962 game. A request for retraction was had been urged upon Curtis. They did not make any retraction. Two days later, on March the 25th, Wallace Butts filed suit in the federal court in Georgia. In that case, again, Mr. Strubing, who obviously had to be familiar of course with the First and Fourteenth privilege claims because he had just gone through it one month before in filing those claims in Alabama in behalf of Curtis in the first Bryant suit. In defense of the -- of this case, the Butts case in Georgia, Curtis did not file any constitutional claim defenses whatsoever. They did not even file the public man privilege that was provided for in the Georgia law, although, they had filed the public man privilege claim in the Bryant cases in Alabama. Within a less than a month after this suit of Butts was filed in the federal court in Georgia, Paul Bryant filed a companion case again in the federal court in Alabama, again of course represented by Mr. Strubing as general counsel for Curtis and Mr. T. Erick Embry of the same law firm. And again, they filed in the second Bryant suit, the First and Fourteenth Amendment claims and the public man defense again. The Butts co -- we say, that those facts conclusively show that Mr. Strubing, the general counsel for Curtis, was well aware of those Amendments, First and Fourteenth Amendment claims, as being a privilege to which Curtis was entitled. Now, the Butts case came to trial in Georgia before either one of the Bryant cases came to trial in Alabama. Mr. Strubing, we were delighted to have him, came to Georgia and for the trial of this case, he brought with him Mr. T. Erick Embry, counsel in the Times case, which was then before this Court and he also brought Mr. Roderick Beddow of the same firm from Birmingham. They sat throughout the Butts trial for over two weeks trial at the Curtis' counsel table along with its Atlanta counsel and at no time did they ever raise, did they ever request the Court to charge any constitutional amendment claims of privileges whatsoever. Now, when the strategy failed and their strategy was of course to try that case on the defense of truth alone. Now, the reason why they came to that decision? We don't know. We are not concerned with it really but it was their decision. Immediately, after their strategy failed --
Speaker: Was there virtually made of that tactic, summation to jury that they hadn't asserted any the grounds except truth as a defense?
Allen E. Lockerman: No, sir. We -- we of course, were not going to raise in -- or suggest --
Speaker: No. I don't mean you. I mean, did they take advantage of their -- tried to take advantage of their own argument
Allen E. Lockerman: I don't know, sir. No, sir. They -- Oh! Well! Oh, they took advantages of that true defense because they were thereby able to get the opening and concluding argument by reason of having pled through that is justification. And under the Georgia law, they thus had the right to open and conclude.
Byron R. White: Yes, but a constitutional defense, which would have precluded the whole suit wouldn't have destroyed that?
Allen E. Lockerman: I don't know what they decided about that. That was their decision.
Byron R. White: But you're saying, you're suggesting that there's a trial strategy.
Allen E. Lockerman: Yes, sir.
Byron R. White: And I'm just under -- trying to understand what the strategy was.
Allen E. Lockerman: Well, whatever --
Byron R. White: And what did they -- what did they gain that was worth giving up the constitutional defense for?
Allen E. Lockerman: Well, the valuable right to open and conclude within a jury argument --
Byron R. White: Pleading in the constitutional defense wouldn't have gone away with the privilege?
Allen E. Lockerman: I don't know, Justice White, why they did it. But the fact is --
Byron R. White: Well, you don't know -- you don't know them whether they would have given up something at all but they have pled the constitutional defense?
Allen E. Lockerman: Well, if they had pled the constitutional defense. I do not know what the -- what position they would have taken about, whether or not they had the burden of proof and that they had to go forward with that burden. I just don't know about that. I do know this --
Byron R. White: Well, you don't -- you don't know then but that that is a matter of strategy?
Allen E. Lockerman: We can only of course conclude they knew all the First and Fourteenth Amendment claims that were available to them and they used them in the two Bryant cases and they didn't use in Hill. And when this strategy failed, they immediately, on their first motion for new trial which they had to file within ten days or thereabout after the verdict was in them. They for the very first time raised their First and Fourteenth Amendment claims and the record shows. It was not later on in March of ‘64 or in January of '64 that they first come. However, now, what I want to point out to --
Earl Warren: Mr. Lockerman --
Allen E. Lockerman: Yes, sir.
Earl Warren: -- do you know as a fact that they -- if they haven't raise this constitutional question that they would not have had the opening and closing, can you state that to us as a fact?
Allen E. Lockerman: That they would not -- I cannot state that as a fact.
Earl Warren: But why do you say that that was their trial tactics there?
Allen E. Lockerman: Because, that is the only defense that they filed. Now, they may have wanted to get a verdict in Georgia. They thought that they possibly might have or get a chance to get a verdict of Georgia on the plea of truth alone as a means of trying to discredit Bryant in Alabama in his cases. I don't know --
Earl Warren: Well, that isn't the question I asked. I -- you said to us that as a matter of trial tactic that you concluded that they had not raised the constitutional issue because if they had, they would not had the opening and closing argument.
Allen E. Lockerman: Well --
Earl Warren: Do you know as a fact that if they had raised this issue, they would not have had the opening and closing argument as they did in this case?
Allen E. Lockerman: I do not. I do not and I do not mean to say that they would not held. But I am --
Earl Warren: Why do you raise that for us then?
Allen E. Lockerman: Why do --
Earl Warren: Why do you raise the issue for it and tell us that that was trial tactic so they would get the opening?
Allen E. Lockerman: I say that we have to assume that that was their trial tactic and --
Earl Warren: And how do -- why do you assume it if you don't know it's the law and that would change it?
Allen E. Lockerman: Because they had -- they had used those defenses in Alabama and they certainly could have -- in Georgia and they did not and we -- and I think the Fifth Circuit reach the same conclusion exactly and it's in their decision and you will find that the Fifth Circuit said, “We do not know why they chose this strategy. It very likely could have been.” And that is in the Fifth Circuit decision.
Hugo L. Black: Had the New York Times case been decided by this Court and the rule it enunciated and declared at the time you say they waived it?
Allen E. Lockerman: The New York Times decision had not been decided.
Hugo L. Black: They have not been?
Allen E. Lockerman: No, sir.
Hugo L. Black: You are basing your claim for waiver on the ground that they should have anticipated that the Court must sometime announce that new rules?
Allen E. Lockerman: I'm ba -- I'm basing it on the fact that you -- as pointed in our brief. There are a number of decisions which show that all the warnings and signs had been given that the Court would un -- most likely, I will put it, would have -- would reach the conclusion that it had did reached in -- in time they resolve the case. I only have just --
Abe Fortas: Do you refer to -- you referred to a public man defense in the Georgia law well could you without taking too much time tell me what that is?
Allen E. Lockerman: Yes, sir. It says that in effect that -- it is the privilege to comment upon the -- well, the matters of -- let me find that specifically. Yes, yes, yes, if you would like me to answer. It is, of course, the Georgia statute, “Comments upon the acts of public men in their public capacity and with reference thereto are deemed privilege communication.”
Abe Fortas: And you're saying that they did not raise that defense? They did not raise that defense in this litigation and from that you assume that gives you another basis for assuming that there was a deliberate trial strategy for whatever reason.
Allen E. Lockerman: Absolutely. And I think that the Fifth Circuit points out in its decision since we do have such limited time. I will conclude my statement by asking you to please read carefully what the Fifth Circuit Court had to say about the subject of waiver and how obviously Curtis knew that it had these constitutional claims and did not make them in this case. Thank you very much.
Earl Warren: Mr. Schroder.
William H. Schroder: Mr. Chief Justice, may it please the Court. I don't suppose it will accomplish too much of the stage of the argument for me to stand too much time on doctrine of New York Times and whether or not our client, Mr. Butts, is a public official within that definition nor whether or not the matter that was -- the subject of this magazine story was a newsworthy event. But before getting along to that portion of New York Times which if it does apply to the first two issues that is public official and newsworthy event. Clearly the way this case or this story was worked up and was investigated and published, clearly beyond in a scintilla the question of a doubt it would produce amount to actual malice, I want to say first that I do not concede. Certainly, Mr. Butts is not a public official within New York Times as New York Times has written at that time. Now there had been decisions written since then Garrison, Rosenblatt and of course, as this Court stated, Time against Hill does not a libel case and is not to be considered by the bar as a libel case. So maybe the definition of public official has been somewhat relaxed since the decision by this Court in New York Times. But I would remind the Court that the arguments made by my distinguished opponent that Mr. Butts was working for a state university as an Athletic Director, to me it would make no more difference than if we were dealing with the Athletic Director and the Head Football Coach at the University of Notre Dame or at Yale University or at Harvard because they are not tax supported of institution.
Tom C. Clark: Did you say he is a public figure, is that between not assuming?
William H. Schroder: Mr. Justice Clark, if he has been successful as a coach and he's recognized as such and gets a fine reputation, I say that he is a public figure because I don't see how I can deny him to be a public figure in candor whatever a public figure might be. I'll say he is someone whose name appears in the paper often. Now if that makes him a public figure certainly, I candidly and fairly state that he would be. But --
Tom C. Clark: Say that wasn't raised in here seriously?
William H. Schroder: No, sir. Mr. Justice Clark.
Tom C. Clark: Would he been a public man that I understand within your Georgia statute?
William H. Schroder: Yes, sir. He would have been a public man.
Tom C. Clark: But that would give him the privilege?
William H. Schroder: That would give the news but, I mean the magazine a privilege to comment upon his activities or his own conduct. Now, on this question of public man or public figure, one whose name appears in the paper everyday is going to be quite a problem somewhere along the line for the courts to delineate what is or who is and who is not a public figure. For example in Atlanta, we have a community chess drive every year and the head of that community chess drive name is in the paper, pictures in the paper everyday. Does he thereby become a public figure in fair game for comment on the Times? Now, let me, if I may --
Byron R. White: And then New York -- Georgia statute I suppose?
William H. Schroder: No, sir. I don't think that the head of the community chess drive would be a public man but I think if the Court extends its definition of public official and to the public man or the public figure domain then I think you get pretty close to it anybody whose name in the paper, featured in the paper more than twice.
William J. Brennan, Jr.: What about the head of the community chess drive, would not be a public man under the statute because he was no public duty to --
William H. Schroder: Correct, correct. No official connection.
William J. Brennan, Jr.: Whereas Mr. Butts did have public figure?
William H. Schroder: Yes, he did. Yes, sir.
William J. Brennan, Jr.: I see.
William H. Schroder: So I'm not going to belabor that public official argument. I don't want to be considered as having waived it by in our argument any further but I have a point made in the brief and we would like to have it considered. But going down, if it please the Court, to the story itself and that after all is that what I consider to be what we have a trying here today really aside from technicalities. We assume New York Times applies. We have a limitation, which was even recognized and followed in the non-libel case or the invasion of the right of privacy case being the Hill case. And, of course, that if the publication is false and if it is published with reckless disregard of its falsity, then under Garrison and then on the Time against Hill, it is not entitled to constitutional protection. Does this case -- to the facts of this case term within that language? First of all, I think it's highly important to look at this publication and what Curtis Publishing Company actually had to say about the respondent. This was not a report of maybe in some nebulous claim as to how he was handling funds as the key director or as to whether or not the convicts were brutal with his family when they were there. This is most serious indictment that could ever in my mind be made or belittle of colored student and I think it's in -- it's a test to petition for certiorari. The editorial itself which I will read and then pass along, this sets the stage not since the Chicago White Sox through the 1919 World Series has there been a sports story as shocking as this one. This is a story of one fixed game of college football. Before they reversed the Georgia played the University of Alabama last September 1922, Wally Butts, Athletic Director of Georgia, gave Paul ‘Bear' Bryant, Head Coach of Alabama, Georgia's place, defense patterns, all these significant secrets which Georgia's football team possessed. The corrupt here were not professional ball players known wrong as in the 1919 Black Sox scandal. The corrupt were disreputable gamblers as in the scandals continually affecting college basketball. The corrupt were two men, Butts and Bryant, employed to educate and to guide young men. How prevalent is the fixing of college football games? How often do teachers sell out their pupils? We don't know, yet for now we can only be uphold. In the body of the article which is a test with the petitioner and particularly on the last page, the editors recognized and I read the last paragraph, “The chances are that Wally Butts will never help any football team again”. Bear Bryant may well fall a hand into oblivion. A special hale for that gram extra word for in the variant real sense, he betrayed the boys he was pledged to lead so I say, careers will be ruined. That I saw I say, that story was published about a post with full knowledge of what effect it would have upon the respondent and the respondent is the only one with whom I have this minimum --
Speaker: Was the evidence on whether it has the truth about it?
William H. Schroder: The evidence for the -- about the plaintiff, I mean the one who had the burden of proof like going to the plaintiff. The defendant consisted of a man who wrote the notes, the man by the name of Burnett, it consisted of the Head Football Coach of the University of Georgia, who testified in effect that the only thing out of all those pockets of notes that we have here that he saw that would indicate anything to anybody where the two formations known in football as a pro set and slugged formation. Each of which, Georgia had used the year before so there wasn't any secret about it. In support of truth, that's all he said. And actually put off with a couple of assistant coach just who said “No more” and then they rested.
Hugo L. Black: Is there any evidence that there was such a telephone conversations on the --
William H. Schroder: There was evidence from --
Hugo L. Black: -- on the date mentioned?
William H. Schroder: -- excuse me, Mr. Justice Black. I don't mean to interrupt you. I heard the question.
Hugo L. Black: Well, is there any evidence that there were such telephone conversations on the date mentioned?
William H. Schroder: There were telephone records showing that there was a telephone call between the two partners on the date not the one mentioned in the magazine or they put it on either one day or before, and that there was another one on the 16th of September between these two parties. The same telephone records showed that the parties have talked back and forth with each other, almost daily. Certainly every week, that Coach Bryant for example, talked to every coach in Southwest including Coach Del Rona, its all in this in record.
Hugo L. Black: But I was only interested in whether there was any evidence in the record? They talked to each other on the day this man claim to have overheard them at the time he claims to have overheard.
William H. Schroder: Yes.
Hugo L. Black: There was?
William H. Schroder: There was.
Abe Fortas: Was there any fixed? There was an explanation of this telephone conversation, wasn't there?
William H. Schroder: Mr. Justice Fortas, I believe the record will support me when I say that neither party had any independent recollection of any particular telephone conversation that they had. They did know they talked often. They talked about matters of equal interest to both of them involving rules infractions and protecting ball players from getting hurt. They talked all the time. That seems to be the football coach is hobby as to call up one of his competitors and discuss business with him. Not what has been accused of Hill. But where this thing started was Mr. Beddow, whose name has been referred to here earlier, who was opposed Birmingham attorney, set word to Mr. Strubing that Burnett, the man in Atlanta had a story worth looking into because it involved Bear Bryant, who was suing them in Birmingham. They said that Burnett had intercepted a telephone conversation five months previously between Coach Butts and Coach Bryant. That Mr. Burnett's friend, John Carmichael, was with them at the time this conversation was going on and discussed it with him after it was concluded. Curtis hired a freelance sports writer by the name of Frank Graham, who had never written a major football story before, to go to Atlanta and interview Burnett. They told Graham before he went, and I'm quoting from the record, page 722, “If the story seems to be working out”, whatever that means, “Not to worry about money. Money was no other.” Graham went to Atlanta and he interviewed Burnett. But he didn't interview Carmichael, whom he knew had been pressed. Graham was told by Burnett that he had made these notes of what was said but they didn't have possession of them at the time he was being interviewed by Graham and therefore his recollection of what was said was vague.
Hugo L. Black: Where do you say the notes were?
William H. Schroder: I don't know where he said there might be but I do -- I know where they were. It would be out of the record maybe if I said so but --
Hugo L. Black: That's alright.
William H. Schroder: -- they didn't ask for them. They were available. They could have been gotten. Said, it were -- memory was sort of vague because the conversation had taken place five months ago and it didn't have his notes. Anyway, Graham said in effect, give me an affidavit about what you remember anyway and I'll pay you $2,000 for your affidavit. And I'm going to take you back to New York and I'll submit it to my employers up there and if they think its good enough, strong enough, we'll pay you $3,000 more if we have the exclusive. This coupled with Graham and the post knowledge that Burnett had a criminal record for bad check rate. It's so important that the -- that to ensure accuracy I will quote from Graham's testimony itself taken by us in New York on a discovery deposition. Since the affidavit formed the real core of the story, except from some quotations from various people, most of which quotations was subsequently denied under oath at the trial. The record at page 39, question: “Other than what is set forth in this affidavit?” Now, I'm examining Mr. Graham in New York, he has this affidavit. But he has secured from Graham in Atlanta. “Other than what is set forth in this affidavit, there was no discussion as to the substance of the conversation between Butts and Bryant?” Answer he says, “No. Just that he was he couldn't remember anything definite about it.” This is quote. He said “without his notes”. So, I say when I return into the article in the magazine about halfway down the first column. There is a paragraph which reads, “Butts outlined Georgia's offensive plays for Bryant and told them how Georgia planned to defend against Alabama at that time. Now, did Burnett furnish you within a detail as to what offense of players was discussed?” Answer, “No. He just said that there was talked about this in which Butts mentioned specific time but he could not recall.” Now, the peculiar thing here is that the post editors and an editorial accompanying the article called it what I have just read to the Court. That was an interpretation, had to be an interpretation of these notes or what was said that was recollected by months earlier because there's only one party involved and that is the man who is listening in. So, the only source for this inter -- for the statement of story could be number one, an interpretation of Burnett's notes by someone knowledgeable in football language. But it didn't have that because the post never got the notes before publishing the story. The only other alternative for an interpretation would be that by Burnett of what he heard five months previously given without the aid of his notes. But it must be remembered that on the very date of the intercepted telephone conversation Burnett, while everything was clear on his mind as to what he had heard and with his notes before him, told John Carmichael what he had heard and how he had interpreted what he had heard that Burnett whatever. And he told Carmichael at that time and he so testified at the trial. That that soon after the conversation, we couldn't even decide which team to bet on because we didn't know based on what I heard who the favorite was or who the favorite should be? So we have Burnett interpreting the same conversations twice, right after they were over and again five months later, when he didn't have his notes and when the post was willing to pay him $5,000 for it. No wonder, the post didn't insist on seeing the notes before the publication and they didn't. No wonder they didn't want to interview Carmichael because his interpretation might differ from what this fellow put in his affidavit. No wonder they made no further check into Burnett's past, his history. They had what they had come to buy and they never even contacted Burnett. Now, if it please the Court between the time they bought that affidavit and before they published it. I represent Wally Butts, sent the post or telegram which reads in part, I'm reading from the record 777. As Coach Butt's attorney, “I am informing you here and now”. This has gotten around what was the affidavit having been sold. Although not many people knew exactly what was in it but they had the idea. As Coach Butt's attorney, “I'm informing you here and now of the falsity of the charges contained in the proposed article and to respectfully request that you and the interest of fair and accurate reporting refrain from publishing or otherwise releasing the said article so as to void -- avoid totally unnecessary damage to my client”. Letter follows, that was March 11th. The date of the magazine was March 23rd. On the same date, I set on and wrote a registered mail letter. In the depositions, the editor of post, this is in with the record, Mr. Blair acknowledged that he received them. He ignored them. He didn't even acknowledged receipt of them to me at that time and proceeded to publish the story as it has been written without making any changes and more important than anything, without making any additional investigation. The reason I sent the telegram, I wrote the letter. Certain, it was not laying the basis for a libel suit because I was sincerely hopeful that no publication whatever be forth coming.
Hugo L. Black: Does the state law require that such a notice be sent to one connection with the publication?
William H. Schroder: No, sir. I -- Mr. Justice Black, I believe this would only be happening in a very few case because you hardly ever know what someone had known to publish about you until it's already published. But I had a rumor that came to me that this was in the mails and the record was shown here that this man Burnett and his cohorts had tried to pedal the story before the post ever bought it. The record shows that they tried to pedal it to a radio announcer in New York named Phil Rizzuto and that's in the record and he refused to touch it. The word got to me that the post had bought it. And I certainly felt, that the post being a responsible member of the press. I felt competent that before publishing the story they knew and so stated that would ruin a man's career and forever make him, his children and his grandchildren bearing his name, objects of public hatred, contempt, and ridicule. They would either kill the story. The courts had investigated my background and the community I think that would have come up a little bit better than the man who had given the affidavit. Either kill it or look further into it. Get in touch with me and say, “What do you have to back off what you say?” Here's what they could have done. They could have gotten the notes. They wouldn't be withheld from it. They could have submitted them to an expert in football, who would have told them as the experts said at the trial, “There's nothing in here that could possibly constitute a fixed, a rigged, a sell out as the post has charge.” They could have asked for the film of the game. It was available. The jury looked at it. The film shows exactly what happened on each play. To be brief, the first three touch downs scored by Alabama as low as 38 to 9. First three touch downs was scored purely as a result, Georgia had lost to the sophomores, failures on the part of the players and the coaches admittedly. For example, I had offensive halfback, planned defensive halfback for Georgia and the in run by him and Joe Namath, now with just were in the touchdown phase. The second touch down scored when the Georgia's in, got a position as first varsity game. Certainly, there was nothing in those films that would suggest a sell out. That's second thing. Number three, they could have gone to the Alabama players and asked them whether there had been any last minute changes in the coaching techniques given them by Coach Bryant and they would have found that there weren't. Next, they could have call -- they could have interviewed Carmichael. Carmichael would have put an entirely different slang on this banded Burnett. And at the trial, Carmichael even testified that the notes that Burnett brought to the trial with him were not the same ones that he had after the telephone conversation. And the post could have found that out just by interviewing him after telling him. They could have interviewed the lawyer for the athletic board, who is the one that has the notes and found out from him that Burnett lied to him when he first came up there about telling him he didn't have a record. And he found out that he did; that he promised this lawyer that he would not sell or keep on to trying to pedal this toward; that he wouldn't sell it. On the very next day, he was over in a Hotham Hotel with Mr. Graham selling it. They could have found that out merely by going to Mr. Bowwick. And certainly, they could have interviewed the principals involved. Coach Butts and Coach Bryant, I think they would -- American way of life I think that before you were convicted and condemned, you would are least entitled to be confronted and to be heard and right there be sentenced. When post went ahead and published this story after my telegram. It knew, because I was representing Mr. Butts so it should have known that it was in for a libel suit. I put them on notice it was false. I knew Mr. Bryant was represented by counsel. He was sued at Birmingham at the very moment. So when they paid, I say, when they pay Burnett the final $3,000 after they've got my telegram and run the story on his witness affidavit that did brought two more officers. And as the record will show, when he took the deposition of the editor in New York of the post, he had entered them pay or issued them memorandum just so it would purports to his stand. He is an incidentally very fine man. I'm not criticizing him but he had an editorial policy which he calls sophisticated mockery. He's going to have an expose type of magazine, this is the post, he's going to hurt people, hit people where they hurt. So in the next memorandum and then I'm through, he said to his staff, “You're doing a great job as evidenced by six libel suits that are now been filed against us and not consider that as a yardstick of the occurring at my editorial policy.” So, if it please the Court, I would suggest or I honestly urge that the lower court be affirmed, all that the writ be affirmed.
Earl Warren: Mr. Wechsler?
Herbert Wechsler: Chief Justice, may it please the Court. I have a few points that I would like to answer in the brief time. Mr. Justice Fortas, on your question about the Alabama public man statute, may I direct your attention to page 50 of the petitioner's briefs -- brief on the merits wherein the Footnote 12 the authorities have brought together that indicate plainly that there was no defense of good faith under the public man section of the Alabama statute and it's quite indefensible really to put to the court that there is if further we claim, we settle by the cases cited in the last paragraph of our footnote that the privilege adds nothing to the plea of truth. You got to be right on your facts. The -- if you look at page 36 of the respondent's brief on the merits, you'll see that all they have to say against this is that in Georgia, the earlier of conflicting authorities governed. Well, you know there is that special doctrine in Georgia but I will simply say that it has no application here because these are high court cases, Supreme Court cases, and there the latest authoritative case would govern.So that's absolutely out. The second thing I'd like to say is that reference was made to Mr. Strubing that was here in his participation in this litigation. His affidavit is at page 1340 of the record and where he makes clear that there was no deliberate intention to surrender any rights of the post in this pleading business but as I said, in my argument I don't regard that as major, any how. Now coming to the facts which I cannot and unhappily review in a minute and a half, may I at least direct the Court's attention to two points? First, even if Mr. Schroder was right and this was a clearer cases of recklessness as he thinks it is, he says it is, I submit that we've been entitled to go to a jury on it under a right of a basic point, under a malice -- proper malice instruction as the Court held in Rosenblatt and other cases that will reversed without ruling, and indeed in Time against Hill. I can't believe that Mr. Schroder remains to argue that there wasn't a jury question here on malice. But if he does mean to argue that, then I must direct attention to the summary on pages 68 and 9 of our brief which indicates that we do not concur in his reading of the record. For example, he said that notes were available. The notes were not available at the time when the post, the representatives were in touch with Burnett. Why weren't they? Because they'd been turned over to the university authorities by Burnett when he reported this on January 4th, the notes were in the hands of Mr. Cook Bowwick, the Counsel with the Athletic Board and the whole matter was being investigated by the university authorities. Now, he says, “If we only have the notes. Then we would have known why.” Well, obviously from our point of view, we had the notes who would have confirmed our view that this conversation occurred and that Butts did give Bryant this information. That is the way we read the notes. That is the way they will read by Chief Coach Griffith, on the night when they were turned over to him. That is the way they were read by the Georgia University authorities. We knew also that Butts have resigned precipitately which didn't exactly seem to be the action of an innocent man. We knew further that the matter was taken with the greatest seriousness by the University authorities and by the State. Now, all those things were known that I say, I must close by the referring to the summary of this material at pages 68 the following our brief. Thank you.
Earl Warren: We'll adjourn.