Brief for Respondent

I. The Constitution confers no absolute immunity to defame public officials

The New York Times, perhaps the nation's most influential newspaper, stooped to circulate a paid advertisement to 650,000 readers—an advertisement which libeled respondent with violent, inflammatory, and devastating language. The Times knew that the charges were uninvestigated and reckless in the extreme. It failed to retract for respondent with subsequent knowledge of the falsity of the material in the advertisement. Yet it retracted as misleading and erroneous the same defamatory matter for another "on a par."

Petitioner was unable to plead truth; or fair comment; or privilege. Alabama provides these classic defenses so that the press may be free within the rubric of its libel laws.¹⁵ Since petitioner did not invoke these Alabama defenses, its belated attack on their constitutional adequacy is hollow and entirely academic. Nevertheless, the Alabama law of libel conforms to constitutional standards which this Court has repeatedly set and to the libel laws of most states. "Only in a minority of states is a public critic of Government even qualifiedly privileged where his facts are wrong."¹⁶ Moreover, "[t]he majority of American courts do not give a privilege to a communication of untrue facts, or to a comment based on them, even though due care was exercised in checking their accuracy."¹⁷ A fortiori there is no such privilege where there was no check whatever. (See Aaronson, Redding and Bancroft testimony).

The Times' trial attorneys conceded that truth was not in issue; and made plain to the jury that the material was so patently false as to be unbelievable in the community. No defendant attempted to introduce testimony to substantiate the charges. The Times does not claim that it was denied a fair and impartial trial of the libel action. The petition raises no question of procedural due process.

"This cause was tried in the courts of [the state] in accordance with regular court procedure applicable to such cases. The facts were submitted to a jury as provided by the constitution and laws of that State, and in harmony with the traditions of the people of this nation. Under these circumstances, no proper interpretation of the words 'due process of law' contained in the Fourteenth Amendment can justify the conclusion that appellant has been deprived of its property contrary to that 'due process.' "¹⁸

Libelous utterances have no constitutional protection The Times does not seek review of a federal question—substantial or otherwise. For libelous utterances have never been protected by the Federal Constitution. Throughout its entire history, this Court has never held that private damage suits for common law libel in state courts involved constitutional questions.¹⁹ Respondent vigorously disputes the Times' assertion that this Court is wrong in its history (Brief, pp. 44–48), and that the constitutional pronouncements in those cases are mere "adjectives" and statements "made in passing" (Brief, p. 40). Respondent is confident that this Court meant what it said in Roth v. U.S., 354 U.S. 476, 483, for example:

"In light of this history it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech (citation)."

Again in Konigsberg this Court pronounced that it "has consistently recognized [that] … certain forms of speech [have] been considered outside the scope of constitutional protection." 366 U.S. 36, 50, citing Beauharnais and Roth.

Moreover, commercial advertisements are not constitutionally protected as speech and press, since there is no real restraint on speech and press where commercial activity is involved. Valentine v. Chrestensen, 316 U.S. 52, 54; Breard v. City of Alexandria, 341 U.S. 622, 643.²⁰ The Times has termed the citation of these cases "frivolous" and "cynical" (Brief, pp. 31 and 57). But its analysis of Valentine v. Chrestensen is incomplete—the other side of the handbill protested a city department's refusal of wharfage facilities. And the Times itself classified the ad as a commercial one, and submitted it to the Advertising Acceptability Department and to the standards of censorship which that department is supposed to impose. The Times charged the regular commercial advertising rate of almost five thousand dollars, scarcely as "an important method of promoting some equality of practical enjoyment of the benefits the First Amendment was intended to secure" (Brief, p. 58).

This Court last term in Abernathy v. Patterson, 368 U.S. 986, declined to review a decision of the Court of Appeals, 295 F. 2d 452, 456–457, which had held this very publication unprotected constitutionally as a libelous utterance. The Court of Appeals stated that the only constitutional claim could be one relating to the conduct of the trial.

In 1804, Thomas Jefferson wrote to Abigail Adams, referring to his condemnation of the Sedition Act of 1798:

"Nor does the opinion of the unconstitutionality and consequent nullity of that law remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the U.S. The power to do that is fully possessed by the several state legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so."²¹

Again in his second inaugural address on March 4, 1805, Jefferson said:

"No inference is here intended that the laws provided by the States against false and defamatory publications should not be enforced; he who has time renders a service to public morals and public tranquility in reforming these abuses by the salutary coercions of the law; but the experiment is noted to prove that, since truth and reason have maintained their ground against false opinions in league with false facts, the press, confined to truth, needs no other legal restraint; the public judgment will correct false reasonings and opinions on a full hearing of all parties; and no other definite line can be drawn between the inestimable liberty of the press and its demoralizing licentiousness."²²

A century and a quarter later, Justices Holmes and Brandeis joined Chief Justice Hughes, who spoke for the Court in Near v. Minnesota, 283 U.S. 697, 715:

"But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions."

Twenty years thereafter, this Court upheld an Illinois criminal group libel statute which had been applied to one who had distributed a pamphlet charging that Negroes as a class were rapists, robbers, carriers of knives and guns, and users of marijuana. Beauharnais v. Illinois, 343 U.S. 250, 266:

"Libelous utterances, not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' "

Since Beauharnais, as the table contained in Appendix A of respondent's brief in opposition shows, this Court has declined to review forty-four libel cases coming from the state and federal courts. It has reviewed three. Two of them²³ resulted in a holding that certain lower echelon federal executive personnel had an absolute privilege. The third²⁴ held that a radio and television station, which gave equal time to all political candidates because of the dictates of § 315 of the Federal Communications Act, was absolutely immune, by virtue of the same act, from state libel suits growing out of any such broadcasts.

The Times and its powerful corporate newspaper friends obviously realize that history and precedent support the holding below that this libelous advertisement is not constitutionally protected. They assert, therefore, at least for themselves and others who conduct the business of mass communication, an absolute privilege to defame all public officials—even in paid advertisements; even when the defamation renders the classic defenses of truth, fair comment and privilege unavailable; even when there is no retraction to show good faith. They urge this Court to write such a fancied immunity into the constitution—at least for themselves, for they are silent on whether this new constitutional protection is to extend to ordinary speakers and writers. The obvious consequence of such a holding would be the confiscation of the rights of those defamed to assert their traditional causes of action for defamation in state courts.

The Times attempts to cloak this defamatory advertisement with constitutional respectability. The ad is called "the daily dialogue of politics" and mere "political criticism" and "political expression." Surely desperation leads the Times so to characterize a charge that respondent, as police commissioner, was responsible for the criminal and rampant "unprecedented wave of terror" which this ad sought to portray falsely.

If the Times prevails, then any statement about any public official becomes "the daily dialogue of politics," "political expression and criticism" and "a critique of attitude and method, a value judgment and opinion." The absolute immunity would cover false statements that the Secretary of State had given military secrets to the enemy; that the Secretary of the Treasury had embezzled public funds; that the Governor of a state poisoned his wife; that the head of the public health service polluted water with germs; that the mayor and city council are corrupt; that named judges confer favorable opinions on the highest bidder; and that a police commissioner conducted activities so barbaric as to constitute a wave of terror. If a state court indulges in "mere labels" without constitutional significance when it holds such utterances libelous, and if such defamatory statements about "public men" are to be protected as legitimate and socially useful speech, then the Times and its friends urge this Court to "convert the constitutional Bill of Rights into a suicide pact."²⁵

Clearly, Congress and this Court did not find such a constitutional immunity, hence Section 315 and Farmers Union v. WDAY, 360 U.S. 525. The very reason for such Congressionally conferred immunity was the "widely recognized" existence of causes of action for libel by defamed candidates for public office "throughout the states" (360 U.S. 525 at 535). This Court found that Congress had given immunity because broadcasters would have too much difficulty determining whether a particular equal time broadcast was defamatory in terms of relevant state law. 360 U.S. 525 at 530. Surely this Court did not decide WDAY on an assumption that the Constitution already provided such immunity absent a "clear and present danger."

Beauharnais, 343 U.S. 250 at 266, disposes of petitioner's "clear and present danger" cases (pp. 13–15) involving criminal prosecutions for breach of peace, criminal syndicalism and contempt of court.²⁶ Indeed, the background of one of them, Pennekamp v. Florida, 328 U.S. 331, 348–349, sharply distinguishes these cases from the one at bar. This Court told Pennekamp that even those hardy judges described by petitioner could bring private suits for defamation in state courts. "For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants."²⁷

Pennekamp—editor of the Miami Herald—ignored this warning. Perhaps he assumed, as does the Times, that the official's remedy was "left at large," and that there was an absolute privilege to level not only fair but false and defamatory criticism at public officials. Pennekamp discovered that he was wrong, and that the remedy had been brought in tow, when his paper libeled a prosecuting attorney who recovered $100,000 in damages. Miami Herald v. Brautigam (Fla.), 127 So. 2d 718. Even though Pennekamp and his paper were able to plead fair comment and truth, and claimed the editorial expression as their own,²⁸ this Court declined to review despite the same First and Fourteenth Amendment arguments which the Times advances in its brief. 369 U.S. 821.

Two of this Court's greatest figures rejected a contention that newspapers should have an absolute privilege to defame public officials and a consequent absolute immunity from private libel suits. Mr. Justice, then Judge Holmes, in Burt v. Advertiser Company, 154 Mass. 238, 28 N.E. 1, 4, upholding a trial court charge to the jury that newspaper statements of fact, as distinguished from opinion, if false, were not privileged, said:

"But what the interest of private citizens in public matters requires is freedom of discussion rather than of statement. Moreover, the statements about such matters which come before the courts are generally public statements, where the harm done by a falsehood is much greater than in the other case."

"If one private citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no better than the writer."

Mr. Chief Justice, then Judge Taft, upholding a similar trial court charge in Post Publishing Company v. Hallam, 59 F. 530, 540 (6th Cir., 1893), wrote:

"[I]f the [absolute] privilege is to extend to cases like that at bar, then a man who offers himself as a candidate must submit uncomplainingly to the loss of his reputation, not with a single person or a small class of persons, but with every member of the public, whenever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reasonable ground. We think that not only is such a sacrifice not required of everyone who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good."

Judge Taft rejected the argument, urged here by the Times and its newspaper friends, that the privilege of fair comment "extends to statement of fact as well as comment" when made by one "who has reasonable grounds for believing, and does believe, that [the public officer or candidate] has committed disgraceful acts affecting his fitness for the office he seeks" (59 F. 530 at 540).

Judge Taft's admonitions still obtain, as Chief Justice Warren observed, in the majority of the states which hold that a public critic of government "is not even qualifiedly privileged where his facts are wrong." Barr v. Matteo, 360 U.S. 564, 585. Alabama is in accord with the great weight of state and federal authority.²⁹

A noted commentator, Professor Zechariah Chafee, an old and close friend of free speech and press, also disagrees with the Times' law and history:

"Especially significant is the contemporaneous evidence that the phrase 'freedom of the press' was viewed against a background of familiar legal limitations which men of 1791 did not regard as objectionable, such as damage suits for libel. Many state constitutions of this time included guaranties of freedom of speech and press which have been treated as having approximately the same scope as the federal provisions. Some of these, as in Massachusetts, were absolute in terms, while others, as in New York, expressly imposed responsibility for the abuse of the right. The precise nature of the state constitutional language did not matter; the early interpretation was much the same. Not only were private libel suits allowed, but also punishments for criminal libel and for contempt of court. For instance, there were several Massachusetts convictions around 1800 for libels attacking the conduct of the legislature and of public officials. This evidence negatives the author's idea of a firmly established purpose to make all political discussion immune."³⁰

The Times can cite no authority holding that the Federal Constitution grants it an absolute privilege to defame a public official.

The advertisement was libelous per se The Times and its friends complain that the court below has held libelous per se a publication which is false, which tends to injure the person defamed in his reputation, which brings him into public contempt as an official, and which charges him with crime. Such a standard, they argue, is a common law concept of the most general and undefined nature. But this Court in Beauharnais v. Illinois, 343 U.S. 250, 257, n. 5, approved Judge Learned Hand's definition of libel in Grant v. Reader's Digest, 151 F. 2d 733, 735 (2d Cir. 1945),"in accordance with the usual rubric, as consisting of utterances which arose 'hatred, contempt, scorn, obloquy or shame,' and the like." Such a definition, this Court held, was a familiar—not a general and undefined—common law pronouncement.

The Times objects because the court decided the question of whether the publication was libelous per se. But the Times' contention opposes Baker v. Warner, 231 U.S. 588, 594. And see Beauharnais, 343 U.S. 250, 254:

"Similarly, the action of the trial court in deciding as a matter of law the libelous character of the utterance, leaving to the jury only the question of publication, follows the settled rule in prosecutions for libel in Illinois and other States."

The Times complains because Alabama presumes general damages from a publication libelous per se, including the uncertain future damage of loss of job. This is the law generally.³¹

This publication charged a public official in devastating fashion with departing from all civilized standards of law and decency in the administration of his official duties. The correctness of the determination below that it is libelous per se is underscored by Sweeney v. Schenectady Union Publishing Company, 122 F. 2d 288, affirmed 316 U.S. 642. There a statement that a Congressman opposed a federal judicial appointment because of anti-Semitism was held libelous per se as a matter of law.

Very recently this same Court in Hogan v. New York Times, 313 F. 2d 354, 355 (2d Cir. 1963), observed that the Times did not even contest on appeal a district court holding that its news article describing a dice game raid of two policemen as a Keystone cop performance was "libelous per se as a matter of law."

Clearly the court below has correctly applied the Alabama common law of libel—law which accords in all relevant particulars with that of many other states.

Damages awarded by the jury may not be disturbed The Times' objection that punitive damages in libel should not be imposed to deter the libeler and others like him from similar misconduct does not square with Beauharnais, 343 U.S. 250, 263. The Alabama test is precisely that of Reynolds v. Pegler, 123 F. Supp. 36, 38, affirmed 223 F. 2d 429 (2d Cir.), cert. den. 350 U.S. 846.³² There the jury brought back one dollar compensatory damages and $175,000 in punitive damages.

In its argument that the size of this verdict impinges its constitutional rights, the Times has ignored a recent New York decision refusing to disturb a verdict of $3,500,000, of which the sum of $2,500,000 was punitive damages, against a publication and another for stating that plaintiff was linked to a Communist conspiracy. Faulk v. Aware, Inc., 231 N. Y. S. 2d 270, 281:

"In libel suits, of course, punitive damages have always been permitted in the discretion of the jury. The assessment of a penalty involves not only consideration of the nature and degree of the offense but the higher moral consideration that it may serve as a deterrent to anti-social practices where the public welfare is involved. The jury, representing the community, assesses such a penalty as, in its view, is adequate to stop the practices of defendants and others having similar designs."

The New York Times did not condemn the Faulk verdict—seven times as great as the one at bar—as heralding the demise of a free press. Instead, the Times applauded the verdict as "having a healthy effect."³³

Quite recently a Federal jury returned a libel verdict of $3,060,000 in favor of a former college athletic director who was charged with rigging a football game. The specified punitive damages were $3,000,000, even higher than those in the Faulk case.³⁴

Another commentator has observed that in England "the survival of honorific values and standards of communal decency keep defamation at a minimum and subject it, when it raises its head, to staggering jury verdicts." Riesman, Democracy and Defamation, 42 Columbia L. Rev. 727, 730.

It is appropriate here to remind this Court that it has always considered itself barred by the Seventh Amendment from setting aside state and federal jury damage awards as inadequate or excessive. Chicago, B. & Q. v. Chicago, 166 U.S. 226, 242–243 ($1 verdict in condemnation proceeding); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474 (and cases cited); St. Louis, etc., Ry. Co. v. Craft, 237 U.S. 648; Maxwell v. Dow, 176 U.S. 581, 598; Southern Ry. v. Bennett, 233 U.S. 80, 87; Herencia v. Guzman, 219 U.S. 44, 45; Eastman Kodak v. Southern Photo Materials, 273 U.S. 359; L. & N. v. Holloway, 246 U.S. 525; cf. Neese v. Southern Ry., 350 U.S. 77. See also, Justices v. U.S. ex rel. Murray, 9 Wall. 274, said by this Court to be one of many cases showing "the uniform course of decision by this Court for over a hundred years in recognizing the legal autonomy of state and federal governments." Knapp v. Schweitzer, 357 U.S. 371, 378–379.

In an attempt to avoid this precedent, the Times first cites a series of cases which hold statutory penalties subject to judicial review as excessive—cases obviously having nothing to do with appellate review of jury verdicts.³⁵

Next the Times urges that respondent's cases permit appellate review of excessive jury damage awards as errors of law (Brief, p. 69). But the cases themselves are otherwise. They cite, as examples of errors of law, awards which exceed the statutory limits; or are less than the undisputed amount; or are pursuant to erroneous instructions on measure of damages; or are in clear contravention of instructions of the court. Fairmount Glass Works v. Cub Fork Coal Company, 287 U.S. 474, 483–484. Another case, Chicago, B. & Q. RR. v. Chicago, 166 U.S. 226, 246, holds instead:

"We are permitted only to inquire whether the trial court prescribed any rule of law for the guidance of the jury that was in absolute disregard of the company's right to just compensation."

Another case, Dimick v. Schiedt, 293 U.S. 474, did not hold that the question of excessive or inadequate verdicts was one of law, but on the contrary that it was "a question of fact." 293 U.S. 474 at 486. And A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355, 360, cited by the Times, stated that the Seventh Amendment "fashions 'the federal policy favoring jury decisions of disputed fact questions'."

The Times then argues that this Court may review the amount of damages because alleged abridgment of freedom of the press must take precedence over the Seventh Amendment (Brief, p. 69). It cites no authority for this amazing argument—one which scarcely accords with this Court's observation in Jacob v. City of New York, 315 U.S. 752 and 753:

"The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts."

The Times quickly moves on to an argument almost as tenuous, namely, that modern authority "regards the Seventh Amendment as inapplicable generally to appellate review of an excessive verdict …" (Brief, p. 69). The premise clashes with Neese v. Southern Ry., 350 U.S. 77, as well as with such cases as Fairmount, supra, 287 U.S. 474, 481:

"The rule that this Court will not review the action of a federal trial court in granting or denying a motion for a new trial for error of fact has been settled by a long and unbroken line of decisions; and has been frequently applied where the ground of the motion was that the damages awarded by the jury were excessive or were inadequate." (Footnotes omitted.)

Finally, the Times complains that there was constitutional infirmity in the failure of the Alabama court to permit special interrogatories to the jury on damages, and thereby to deprive the jury of its right to return a general verdict.³⁶ Surely there is no constitutional defect in Alabama's adherence to the common law general verdict so recently eulogized by Justices Black and Douglas when they condemned an extension of the practice of submitting special interrogatories to federal juries:

"Such devices are used to impair or wholly take away the power of a jury to render a general verdict. One of the ancient, fundamental reasons for having general jury verdicts was to preserve the right of trial by jury as an indispensable part of a free government. Many of the most famous constitutional controversies in England revolved around litigants' insistence, particularly in seditious libel cases, that a jury had the right to render a general verdict without being compelled to return a number of subsidiary findings to support its general verdict. Some English jurors had to go to jail because they insisted upon their right to render general verdicts over the repeated commands of tyrannical judges not to do so."³⁷

Accordingly, a review of the damages awarded by the jury in this case is beyond the powers of this Court. Moreover, the verdict, as the court below held, conforms to the general damages suffered by the respondent and to the wrong which the Times committed. The Times does not claim here that the jury was motivated by passion or prejudice or corruption or any improper motive. Two state courts have found that it was not.

The jury was no doubt struck by the amazing lack of concern and contrition exhibited by the Times' representatives at the trial, and it certainly contrasted their conduct. The Times' attorneys did not plead truth; did not attempt to introduce evidence of truth; suggested in cross-examination of respondent's witnesses that the matter was untrue and would not be believed; stated in open court that truth was not in issue; and could not plead fair comment or privilege. The Times retracted the same matter as erroneous and misleading for another person whom it considered to be "on a par" with respondent. But the secretary of the corporation, who had signed its answers to interrogatories, said that with the exception of the padlocking incident he believed the matters in the ad were not substantially incorrect.

Even more recently the conduct of the Times' business has warranted judicial condemnation. Hogan v. New York Times, 313 F. 2d 354, 355–356 (2d Cir. 1963):

"We believe that sufficient evidence existed to sustain the jury verdict on either of the two possible grounds upon which its decision that defendant abused its qualified privilege might have been based: (1) improper purpose in publishing the article, or (2) reckless disregard for the truth or falsity of the story, amounting to bad faith."

The Times had its chance to retract and eliminate punitive damages, but chose not to do so for this respondent though it retracted for another person "on a par." A restriction of respondent to special damages would compound the evils described by Mr. Chafee in the following statement which he quoted with approval:

" 'To require proof of special damages would mean virtual abolition of legal responsibility for inadvertent newspaper libel. Newspaper slips are usually the result of reprehensible conduct of members of the defendant's organization. To deny plaintiffs recovery for retracted libel unless they prove special damages, is to do away with newspapers' financial interest in accuracy. The tendency towards flamboyance and haste in modern journalism should be checked rather than countenanced. If newspapers could atone legally for their mistakes merely by publishing corrections, the number of mistakes might increase alarmingly….' "³⁸

II. There is no ground for reviewing a jury determination that the advertisement was "of and concerning" the Plaintiff

The Times' assertion that this Court should decide as a matter of constitutional law that the jury which tried this case was wrong in finding that the advertisement was "of and concerning" respondent is astounding. Respondent will not repeat here the thorough discussion of the testimony analyzing the false allegations of the ad and their reference to respondent as police commissioner of Montgomery. Apparently a reading of this testimony has now impressed even the Times. It has omitted from its brief on the merits the cases of Thompson v. Louisville, 362 U.S. 199, and Garner v. Louisiana, 368 U.S. 157, cited in its petition for certiorari for the proposition that there was no evidence to support the verdict.

Again the Times seeks to overturn imbedded constitutional principles. This case has been tried in a state court according to admittedly proper court procedure, and a jury has decided the facts. This Court simply does not go behind these factual determinations and review a state court judgment, entered on a jury verdict and affirmed by the highest state appellate court. Chicago, B. &Q. R. Co. v. Chicago, 166 U.S. 226 at 242–243; United Gas Public Service Co. v. Texas, 303 U.S. 123, 152–153 (Black, J., concurring); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474; Maxwell v. Dow, 176 U.S. 581, 598.³⁹

When this Court in Gallick v. B. & O. R. Co., 372 U.S. 108, 9 L. Ed. 2d 618, 627, held that its duty was to reconcile state jury findings "by exegesis if necessary," it surely assigned no lesser place to the Seventh Amendment than that described by Justices Black and Douglas:

"The call for the true application of the Seventh Amendment is not to words, but to the spirit of honest desire to see that constitutional right preserved. Either the judge or the jury must decide facts and to the extent that we take this responsibility, we lessen the jury function. Our duty to preserve this one of the Bill of Rights may be peculiarly difficult, for here it is our own power which we must restrain."⁴⁰

Similar principles permeated the judicial philosophy of Judge Learned Hand:

"And so only the most unusual circumstances could justify judicial veto of a legislative act … or a jury verdict. Hand's standard for intervention was essentially the same in both cases. It came simply to this: if there was room for doubt, legislation—like a verdict—must stand, however, mistaken it might seem to judges. Ambivalence in the law was the province of jury and legislature—the two authentic voices of the people. Judicial intervention was permissible only when a court was prepared to hold that no reasonable mind could have found as the legislature or jury did find."⁴¹

Regarding falsity, the statements in the ad have been discussed exhaustively in this brief. The Times was unable to plead truth; and conceded falsity before the trial by its retraction to Governor Patterson and at the trial through the statements of its attorneys. It is surely paradoxical for the Times to assert in this Court that the record is so "devoid" of evidence of falsity as to invoke the certiorari jurisdiction of this Court. Nothing could be more idle than to debate with the Times and its friends the question of whether Alabama imposes the burden of proving truth on the wrong party, when the Times by its judicial admissions has conceded falsity.⁴²

Moreover, this record reveals this ad's devastating effect on respondent's reputation among those who believed it. Courts have easily and effectively dealt with the Times' argument that the publication was not libelous or injurious because it was not believed in the community (Brief, p. 65).⁴³ Perhaps the Times would also argue that those in a crowded theater who did not see or smell smoke would not believe a person who yelled "fire."

It is patently frivolous for the Times to argue that no ordinary person of reasonable intelligence⁴⁴ could possibly read this advertisement as referring to the Montgomery police commissioner. Nor is a jury bound by the Federal Constitution to take the Times' construction of these words after its attorneys have completed a sanitizing operation in an attempt to dull the cutting edges of these words.⁴⁵

Beauharnais v. Illinois, 343 U.S. 250, teaches that a libel plaintiff need not be named in the defamatory publication. There the criminal prosecution was for defamation of the entire Negro race.⁴⁶

It is difficult to believe that the Times is serious when it argues that this record is entirely devoid of evidence to support the jury finding that these defamatory words were of and concerning respondent.

The ad sought to, and did, portray criminal and rampant police state activity resulting from the singing of "My Country, 'Tis of Thee" from the State Capitol steps. It sought to portray, and did, a resultant "wave of terror" against innocent persons—expulsion from school; ringing of the campus of Alabama State College with truckloads of police armed with shotguns and tear gas; and padlocking of the dining hall to starve protesting students into submission. And the ad returned to Montgomery in the second quoted paragraph to charge that pursuant to the same "wave of terror," those who had arrested King for loitering and speeding also had bombed his home, assaulted his person, and indicted him for perjury.⁴⁷

The effect of this publication was as deadly as intended—to instill in the minds of the readers the conclusion that these acts had been perpetrated by Montgomery city officials, specifically the police commissioner. The Times can suggest no one else except the police, whose massive acts in the public mind are surely the work of the commissioner. The connotation is irresistible—certainly not, as the Times argues, completely devoid of rationality.

Moreover, the jury heard witnesses who made the association. Hope v. Hearst Consolidated Publications, 294 F. 2d 681 (2d Cir.), cert. denied 368 U.S. 956; Chagnon v. Union Leader Corp., 103 N. H. 426, 174 A. 2d 825, 831–832, cert. denied 369 U.S. 830.

Respondent sued as a member of a group comprising three city commissioners. Libel suits by members of private or public groups of this size are widely permitted. The decision below accords with the law generally.⁴⁸

III. This case provides no occasion for excursions from this record and from accepted constitutional standards.

In a desperate effort to secure review in this Court, the Times and its friends go outside the record and refer this Court to other libel suits pending in Alabama. With the exception of two brought by the other Montgomery commissioners, all are erroneously and uncandidly labeled "companion cases."⁴⁹

But the effort is as revealing as it is desperate. Clearly, petitioner feels that this case, standing on its own, does not present grounds for review.

These cases are not yet tried. There are different plaintiffs; different defendants; different publications; different communications media; different forums; different attorneys; different issues;⁵⁰ no final judgment in any; and a trial on the merits in only one of them. The Times urges this Court to jettison libel laws that have existed since the founding of this Republic, and hold:(a) there is an absolute privilege to defame public officials, at least those living in Alabama; (b) private libel suits for defamation are available to all citizens of the United States in state courts according to state libel laws, but not to persons who happen to hold public office in Alabama;(c) plaintiffs in those cited cases shall be deprived of their rights to have their libel cases heard on their merits.

The Times seems to hint to this Court that because the publication contained statements regarding racial tensions, the law of libel should perforce "confront and be subordinated to" a constitutional privilege to defame.⁵¹ Surely in a field so tense, truthful statements by huge and influential newspapers are imperative. For as this Court said in Beauharnais, 343 U.S. 250 at 262:

"Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion."

The confrontation which the jury hoped to achieve was the confrontation of the Times with the truth.

The enormity of petitioner's wrong is clear. Hopefully the decision below will impel adherence by this immensely powerful newspaper to high standards of responsible journalism commensurate with its size.

"A free press is vital to a democratic society because its freedom gives it power. Power in a democracy implies responsibility in its exercise. No institution in a democracy, either governmental or private, can have absolute power. Nor can the limits of power which enforce responsibility be finally determined by the limited power itself. (Citation.) In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise. Most State constitutions expressly provide for liability for abuse of the press's freedom. That there was such legal liability was so taken for granted by the framers of the First Amendment that it was not spelled out. Responsibility for its abuse was imbedded in the law. The First Amendment safeguarded the right."⁵²

These freedoms are amply protected when a newspaper in a state court can plead and prove truth; can plead and prove fair comment; and can plead and prove privilege. Even when it cannot, it can retract, show its good faith, and eliminate punitive damages. Alabama thus provides the very safeguards which, the Times and its friends argue, are essential to protect petitioner's constitutional rights.

When it can do none of these, and when it has indeed defamed in a commercial advertisement, no constitutional right, privilege or immunity expounded by this Court during its entire history shields a newspaper from damages in a common law libel suit.

The Times and its cohorts would have this Court abandon basic constitutional standards which have heretofore obtained and which Justice Harlan recently described:

"No member of this Court would disagree that the validity of state action claimed to infringe rights assured by the Fourteenth Amendment is to be judged by the same basic constitutional standards whether or not racial problems are involved."⁵³

IV. The Times was properly before the Alabama courts.

1. Because both courts below held that the Times had made a general appearance,⁵⁴ an adequate independent state ground as to jurisdiction over the Times in this suit is a bar to review here. Herb v. Pitcairn, 324 U.S. 117, 125–126; Murdock v. Memphis, 20 Wall. 590, 626; Fox Film Corporation v. Muller, 296 U.S. 207, 210; Minnesota v. National Tea Company, 309 U.S. 551, 556–557.

The Times intended to assert, and did, that the trial court was without jurisdiction of the subject matter of this action. Indeed, the Times still argues in this Court that there was no jurisdiction of the subject matter (Brief, p. 63). This act, alone, is a general appearance in Alabama and in a majority of state courts. In addition, the Times compounded its general appearance by other activities in the Alabama courts unrelated to the claimed lack of personal jurisdiction.

Petitioner argues that the Alabama Supreme Court has incorrectly interpreted its own decisions, and that the decision below is in error. This is obviously the wrong forum for such an argument.⁵⁵

But even if an examination of state law were appropriate, the court below followed its earlier cases. Alabama has held, as have other states, that there is a clear distinction between jurisdiction of the person and subject matter. Constantine v. Constantine, 261 Ala. 40, 42, 72 So. 2d 831. A party's appearance in a suit for any purpose other than to contest the court's jurisdiction over the person is a general appearance.⁵⁶

The Alabama cases cited by the Times do not conflict with the decisions below. One case holds that a request for extension of time to file pleadings is not a general appearance;⁵⁷ another recognized that defendant might have converted a special appearance into a general appearance, but held that even so a circuit court had authority to set aside a default judgment within thirty days, and denied an extraordinary writ;⁵⁸ a third involved a limited attack on "the court jurisdiction over the person of defendant;"⁵⁹ one did not even consider the question, since apparently neither the trial judge nor the parties had noticed it;⁶⁰ one discussed the proper way to plead misnomer;⁶¹ and in the last two the defendants conceded jurisdiction of the person.⁶²

Moreover, there is nothing novel about the Alabama holding of general appearance. This Court in such cases as Western Loan & Savings Company v. Butte, etc. Mining Company, 210 U.S. 368, 370 and Davis v. Davis, 305 U.S. 32, 42, as well as leading text writers,⁶³ and the majority of the jurisdictions of this country have recognized the binding effect of this rule.⁶⁴

Petitioner argues that the general appearance ground is an untenable non-federal one. Its cases simply do not support its contention. No novel state procedure, of which a party could not fairly be deemed to have been apprised, thwarted all means of raising a federal question.⁶⁵ Nor is the Alabama rule—in accord with the majority one—an "arid ritual of meaningless form."⁶⁶ Clearly beside the point is a case where an admitted special appearance by a party, an officer appointed to run the railroads for the federal government, was not deemed by the state court to be a special appearance for his successor.⁶⁷

Nor do petitioner's cases (pp. 76–77) support the contention that even if there had been jurisdiction by consent because of the general appearance, the commerce clause forbids its exercise. These cases simply hold that a carrier must be given an opportunity to make a seasonable objection to court jurisdiction, and cannot be deprived of doing so by state machinery making a special appearance a general one. Cf. York v. Texas, 137 U.S. 15, 20. Alabama does permit a special appearance, and does not prevent a "seasonable motion." But when a foreign corporation makes, instead, a general appearance, the commerce clause does not bar the exercise of court jurisdiction by consent.

Davis v. O'Hara, 266 U.S. 314, 318, discussed by the Times (Brief, pp. 74–75) involved Nebraska, not Alabama law, and held that under Nebraska practice a special appearance was not required to object to jurisdiction over the person.

2. Even if the Times had not made a general appearance in this case, effective service of process is based on decisions of this Court so explicit as to leave no room for real controversy. The Times, having already argued that this Court should cast aside its many decisions permitting libel suits against newspapers, now asks this Court to cast aside its cases permitting tort actions against foreign corporations in states where those corporations do business. In short, the Times seeks absolute immunity on the merits, and jurisdictional immunity from suit outside New York state.

The crucial test is simple. Did the Times have sufficient business contacts with Alabama so that suit against it there accorded with traditional concepts of fairness and orderly administration of the laws? International Shoe Company v. Washington, 326 U.S. 310, 319. The court below, and indeed the trial court, after painstaking analysis of the jurisdictional facts of record, held that there were sufficient contacts. The qualitative functions of a newspaper outlined in Consolidated Cosmetics v. DA Publishing Company, 186 F. 2d 906, 908 (7th Cir. 1951), were carried on in Alabama.

The Times plainly maintained an extensive and continuous pattern of business activity in Alabama at least since 1956. The resident string correspondents and staff correspondents, who repeatedly came into Alabama, were a unique and valuable complement to the news gathering facilities of the Associated Press and United Press and other wire services upon which smaller newspapers rely. Such widespread news gathering facilities unquestionably increase the scope and detail of the Times' news columns, and enhance, accordingly, its prestige, its circulation, and the prices which it can command in the advertising market. In turn, these far-flung news gathering tentacles subject the Times to potential suit in the states into which they reach. If financial reward comes to the Times from its on-the-spot news coverage in Alabama, it is fair that citizens of Alabama should be able to sue the Times here when it has wronged them.

Scoffing at the quantitative size of its business activities in Alabama, the Times apparently ignored the most recent pronouncement of this Court in Scripto v. Carson, 362 U.S. 207, cited by the courts below. Scripto derived less than half of the revenue from Florida which the Times has derived from Alabama—and regular employees of the Times have combined their efforts with those of independent dealers to produce this result.

The Times attempts to distinguish Scripto by the inaccurate observation that "no issue of judicial jurisdiction was involved" (Brief p. 85). But this Court's opinion in Scripto stated that the Florida courts had "held that appellant does have sufficient jurisdictional contacts in Florida [to be made a collector of use tax] … We agree with the result reached by Florida's courts" (362 U.S. 207, 208). While the Times would argue that due process standards for jurisdiction to sue are stricter than those for jurisdiction to make a tax collector out of a foreign corporation, objective commentators have not agreed. The due process clause "might well be deemed to impose more stringent limitations on collection requirements than on personal jurisdiction."⁶⁸

One contract negotiated entirely by mail with a predecessor company gave California sufficient contact with a successor insurance company. A default judgment against it was upheld. McGee v. International Insurance Company, 355 U.S. 220.⁶⁹ Mail transactions alone enabled a Virginia Securities Commission to regulate an out-of-state insurance company. Travelers Health Association v. Virginia, 339 U.S. 643. And this Court, as noted in the decision below, commented upon more enlightened concepts resulting in expanded scope of state jurisdiction over foreign corporations. McGee v. International Insurance Company, 355 U.S. 220, 222–223. Moreover, state activity through the means of independent contractors, as distinguished from agents or employees, is without constitutional significance. Scripto v. Carson, 362 U.S. 207, 211. The Times does not cite Scripto on this point, but it is nevertheless the law.

A recent decision, interpreting Alabama's Substituted Service Statute, Callagaz v. Calhoon, 309 F. 2d 248, 256 (5th Cir. 1962) observed:

"Since [Travelers Health and McGee] it is established that correspondence alone may establish sufficient contacts with a state to subject a non-resident to a suit in that state on a cause of action arising out of those contacts."

Justice Black's dissenting opinion in Polizzi v. Cowles Magazines, 345 U.S. 663, 667, considered a magazine publisher subject to Florida libel suit, under old or new concepts, when its only contact there was two circulation road men who checked retail outlets in a multi-state area which included Florida. Presumably no reporting or advertising solicitation was carried on. Mr. Justice Black's opinion, which has been widely quoted as expressive of the prevailing view, found it manifestly unfair to make the plaintiff "bring his libel suit in a federal district court in the corporation's home state of Iowa … [and not] in a federal court in the state where Polizzi lived and where the criminal charges were likely to do him the most harm" (345 U.S. 663 at 668).

Obviously the case at bar does not present an instance of "forum shopping" such as was faced by Judge Hand in Kilpatrick v. T. & P. Ry. Co., 166 F. 2d 788 (2d Cir. 1948). The court's remarks (quoted Brief, p. 81) were directed to a Texas plaintiff, injured in Texas, who had brought his suit in New York. Even so, the district court was reversed for dismissing the plaintiff's action.

McKee, an Alabama resident, conducted all of the usual activities of a stringer for the New York Times. In addition, he performed the delicate task, to which he "naturally" fell heir, of investigating respondent's demand for retraction. The Times was efficaciously brought into court by service on McKee. It is inconceivable, for example, that if while helping Harrison Salisbury obtain material for his Alabama stories, Don McKee had run an automobile into a plaintiff, the Times could have escaped liability by maintaining that McKee was an independent contractor.

Similarly substituted service under the Alabama statute⁷⁰ was valid. Alabama business activity of the Times preceded and followed the printing of this libelous material in New York. The ad itself was supposedly cleared on the basis of prior news gathering; it was later sent into Alabama by the Times, with a carrier as its agent, freight prepaid, with title passing on delivery to the consignee. Thence the issue went to newsstands for sale to the Alabama public, in accordance with the longstanding business practice of the Times.⁷¹

Scripto v. Carson, 362 U.S. 207, lays to rest the significance of any contention that sales to the public in Alabama were through the medium of independent contractors. It is not necessary for this Court to reach the question of whether isolated newsstand sales, disconnected from any other business activity in Alabama, would be a sufficient contact to sustain substituted service. This is not the case. For the Times has also solicited advertising and gathered news in a systematic and continuous fashion, and has thereby established a firm business connection with Alabama.⁷²

Due process and the commerce clause do not immunize the Times from Alabama suit.

As Polizzi makes clear, newspapers are not to be in a special category. When other corporations may be sued in a foreign jurisdiction, so may they on similar facts. Newspaper corporations are no more entitled to the favored position which the Times and its friends would accord them than they are entitled to many other preferences for which they have unsuccessfully argued. In Mabee v. White Plains Publishing Co., 327 U.S. 178, 184, this Court held: "As the press has business aspects, it has no special immunity from laws applicable to business in general." This case concerned the applicability of the Fair Labor Standards Act to newspapers. This Court has likewise held newspaper corporations subject to the National Labor Relations Act, Associated Press v. N. L. R.B., 301 U.S. 103 and to the anti-trust laws, Lorain Journal Company v. United States, 342 U.S. 143.

Hanson v. Denckla, 357 U.S. 235, relied upon by the Times as contrary to the decisions below, is easily distinguishable. As this Court pointed out, there was no solicitation of business in Florida by the foreign corporation, either in person or by mail. In the case at bar the Times solicited business in both manners. The cause of action in Hanson v. Denckla did not arise out of an act done or transaction consummated in the forum. On the contrary, this cause of action arose out of the very distribution of the newspapers by the Times in Alabama. Surely the Times cannot contend that its introduction of these newspapers in Alabama was involuntary.⁷³ The foreign corporation in Hanson v. Denckla had received no benefit from the laws of the forum. The manifold business activities of the Times—news gathering, solicitation of advertising and distribution—have received the protection of Alabama laws.

Finally (Brief, pp. 86–88) the Times suggests that even though it might be amenable to suit in Alabama under due process standards, the commerce clause nevertheless bars the Alabama action. The most recent decision of this Court cited in support of this proposition was handed down in 1932. It seems scarcely necessary to observe that this Court, which has developed enlightened standards giving expanded scope to jurisdiction over foreign corporations in such cases as International Shoe, McGee, Travelers Health and Scripto will not grant review to turn the clock back to 1932, and invoke the rigid concepts of earlier days under the aegis of the commerce clause. And the Times must concede that this Court has not "hitherto" held that tort actions against foreign corporations—fairly subject to in personam jurisdiction—are unconstitutional as undue burdens on interstate commerce (Brief, p. 87).

Accordingly, even without a general appearance, the Times would have presented no unsettled federal question of jurisdiction for review by this Court on certiorari.