Brief for the Petitioners

Numerous recent decisions of this Court⁴ have focused sharply on the intense nationwide efforts to secure the constitutional rights of Negroes, and on the numerous unconstitutional acts committed in various Southern states to frustrate these efforts. The four petitioners herein are Negro ministers (resident in Alabama at all relevant times) and religious and spiritual leaders of the movement to secure civil rights in Alabama and throughout the South.

1. The nature of the publication

To enlist public support and raise funds for the legal defense of Dr. Martin Luther King, Jr. (who shortly before had been indicted in Alabama for perjury)^5, and in aid of the non-violent demonstrations against racial segregation, a New York group called "The Committee to Defend Martin Luther King and the Struggle for Freedom in the South" ("Committee" hereinafter), with which petitioners had no connection, caused to be printed and published in The New York Times ("The Times" hereinafter) on March 29, 1960, an advertisement entitled: "Heed Their Rising Voices" (R. 6; Pl. Ex. 347 at R. 1925, reproduced in full in Appendix "A" p. 63, infra). The advertisement commented on the activities of unnamed governmental authorities, in cities in a number of Southern states, designed to stifle the then-current protest demonstrations⁶ against segregation by students in various Southern institutions (including Alabama State College at Montgomery). In commenting on such activities, the advertisement used the broad, generic term "Southern violators of the Constitution".

The ad referred to the harassments to which Rev. King had been subjected, including arrests, imprisonment, the bombings of his home, and the then-pending perjury indictment, and concluded with an appeal for contributions to be sent to the Committee's office in New York in support of Dr. King's defense, the desegregation movement, and the voter registration drive in the South.

Under the text of the appeal appeared the names of some sixty eminent sponsors (including Mrs. Eleanor Roosevelt, Drs. Harry Emerson Fosdick, Mordecai Johnson, Alan Knight Chalmers and Algernon Black, and Messrs. Raymond Pace Alexander, Elmer Rice and Norman Thomas).

Below the list of sponsors appeared the caption "We in the south who are struggling daily for dignity and freedom warmly endorse this appeal", under which caption were printed the names of eighteen (18) ministers from various Southern states, including the four petitioners.

The appeal concludes with the following plea for funds:

"We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.

"We urge you to join hands with our fellow Americans in the South by supporting, with your dollars, this Combined Appeal for all three needs—the defense of Martin Luther King—the support of the embattled students—and the struggle for the right-to-vote."

2. The evidence concerning publication

The undisputed record facts demonstrate that the names of petitioners were added to the advertisement without consultation with them and without their authorization or consent (R. 788–90; 792–4; 797–8; 801–2; 806–10; 824–5;1175). Indeed, the record is clear that their first knowledge of The Times ad came when they received in the mail respondent Sullivan's identical letters which had been posted on or about April 8, 1960, and which were admittedly misdated "March 8, 1960" (Pl. Exs. 355–8, R. 1962–7). Moreover, these letters did not contain a copy of the ad, but merely quoted out of context the two paragraphs on which Sullivan based his complaint, and demanded that each petitioner "publish in as prominent and public a manner" as The Times ad, "a full and fair retraction of the entire false and defamatory matter …" (R. 1962–8). Petitioners could not possibly comply with this demand; and, before they could consult counsel or even receive appropriate advice in regard thereto, suit was instituted by respondent on April 19, 1960 (R. 789; 793; 798; 801–3).

The undisputed record facts further show a complete lack of connection between petitioners and the publication of the advertisement. The typescript was submitted to The Times by one John Murray (R. 732), with a space order from The Union Advertising Service (R. 736). Names of sponsors (the Committee) were typed at the foot (R. 739). Accompanying (or submitted shortly following) the typescript was a letter, signed by A. Philip Randolph, (R. 739, 756–757) purporting to authorize the use of the names of the "signed members of the Committee" as sponsors (R. 1992). It is not disputed that petitioners' names did not appear on the manuscript as submitted (R. 806–7). Petitioners' names were subsequently placed on the advertisement by one Bayard Rustin, on his own motion, without any consultation with petitioners as shown by the undisputed evidence (R. 808–810) and the findings of the Court below (R. 1174–5). No representative of The Times ever asked petitioners whether they had consented to this use of their names (R. 754–5, 770, 790, 793, 797–8, 802).

None of the petitioners saw the full text of the advertisement prior to the commencement on April 19, 1960 of respondent Sullivan's suit (R. 789, 793, 798, 801); petitioners' first notice of The Times ad (and only of the language complained of) came from Sullivan's aforementioned misdated letters mailed on or about April 8, 1960 (R. 789, 793, 798, 802). Petitioners each wholly denied any knowledge of the ad prior to its publication, any consent to the use of their names and any responsibility for its publication (R. 788–90, 792–4, 795, 797–8, 801–2). Respondent in no way disputed these record facts which are confirmed in the opinion of the Court below (R. 1174–5).

3. The alleged libel

The Times ad in suit, without identifying or naming any particular individual or fixing any particular time period, refers to various incidents of claimed repression in numerous cities throughout the South, commencing with "Orangeburg, South Carolina" and continuing on to "Montgomery, Alabama" and "Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Charlotte and a host of other cities in the South…."

On October 5, 1959, respondent Sullivan became one of the City Commissioners of Montgomery, Alabama (R. 694). Nowhere in The Times ad in suit was respondent Sullivan or any other southern official referred to by name or office. Many of the repressive actions in Montgomery, referred to in the ad, occurred prior to Sullivan's term of office, as Sullivan himself admitted (R. 703–19).

The entire gravamen of Sullivan's complaint (which alleged no special damage but sought $500,000 as punitive damages) concerned the following two paragraphs of the advertisement (i.e., the third and sixth), which were alleged to be defamatory:

"In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."

* * * * * * *

"Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for 'speeding', 'loitering' and similar 'offenses'. And now they have charged him with 'perjury'—a felony under which they could imprison him for ten years." (R. 2–4).

Although Sullivan's complaint (R. 2–3) and his letters to petitioner demanding retraction (R. 1962–7) suggest that the above quoted paragraphs followed one another in consecutive order in The Times ad in suit, the record fact is that the first paragraph quoted is separated from the second by two lengthy paragraphs comprising almost a complete column of the ad—one relating to events in numerous cities in Southern states other than Alabama, and the other lauding Dr. King as the "world famous leader of the Montgomery Bus Protest" and the symbol of "the new spirit now sweeping the South" (Pl. Ex. 347, R. 1923–6, reproduced in full in Appendix "A" hereto).

Moreover, Sullivan's entire claim of libel rests on the following minor discrepancy: whereas the ad said that "truckloads" of armed police "ringed the Alabama State College Campus," the fact was that "on three occasions they [police] were deployed near the Campus in large numbers" (R. 594).

Clearly no distinction of substance can validly be drawn between police "ringing" the campus and being "deployed near the campus in large numbers"—particularly in the context of comment and criticism of official conduct on this most vital public issue.

Further, the ad said that Dr. King was arrested "seven times". The testimony was that he was arrested three or four times in Montgomery, Alabama (three of which arrests admittedly occurred prior to the respondent's term of office) (R. 592, 594–5); but there is nothing in the text or context of the advertisement which either requires or permits the inference that the seven arrests occurred in Montgomery or anywhere else in Alabama. Other alleged inaccuracies in the ad were conceded by respondent Sullivan to refer to matters within the jurisdiction of the State Education Department or other agencies, and to matters occurring long prior to respondent's taking office (R. 684–5, 688, 694, 701, 716, 719, 725).

None of Sullivan's witnesses (four of whom first saw the ad when called to the office of plaintiff's counsel shortly before the trial to be prepared as witnesses) testified that they believed the ad, or that they thought any less of respondent by reason of its publication (R. 623, 625, 636, 638, 644, 647, 651, 667).

4. Biased trial and judgment

Alabama has enacted sweeping racial segregation laws,⁷ which reflect the community hostilities and prejudices that were funneled into the Courtroom. Continuous denunciations of the defendants and of the material in the advertisement appeared in Montgomery newspapers prior to the trial, and continued throughout the trial and while the defendants' motions for new trial and appeals were pending (R. 1999–2243; 871–89). The trial itself took place in a carnival-like atmosphere, with press photographers in the Courtroom taking pictures of all the jurors for the two local newspapers (R. 951, 955), and television cameras following the jury to the very door of the juryroom⁸ (R. 889–90, 2242). Two Montgomery newspapers, one on its front page, carried the names of the jurors (R. 2079–80, 952).

This suit was tried in November 1960, in Montgomery County, before Judge Walter B. Jones, and an all-white jury. The Trial Judge himself was a member of the jury commission of Montgomery County, the group responsible for the selection of the jury panel (R. 936, 971), from which Negroes have been intentionally and systematically excluded.

Respondent Sullivan's counsel was permitted by the Trial Judge, without restraint, over objections of petitioners' counsel, to indulge in such inflammatory appeals to racial bias as the mispronunciation of the word "Negro" as "Nigra" and "Nigger" in the presence of the jury,(R. 579–80), and in an invidious reference in his summation to purported events in the Congo (R. 929–30, 939–41). The Opinion of the Alabama Supreme Court below, in condoning such conduct, accepts counsel's lame excuse that he pronounced "the word 'negro' " as he did because that was the way he had pronounced it "all my life"⁹ (R. 1168–9).

Throughout the proceedings below, petitioners took all possible steps to preserve their constitutional rights. They demurred to the complaint (R. 15–24) and filed Amended Demurrers (R. 74–99); their demurrers, as amended, were all overruled (R. 108–9). They made numerous proper objections and excepted to the repeated admission of improper testimony of respondent's witnesses (R. 1102–09). They twice moved to exclude plaintiffs' evidence (R. 109–14, 728, 816), which motions were denied (R. 728, 816–17). They made motions for special findings (R. 114–18) and submitted written requests to charge (see R. 827); they made due and timely objections and exceptions to the denial of their motions and requests. Petitioners moved (see, e.g., R. 109–14; 728, 816) for a dismissal at the end of plaintiff's case and for a directed verdict at the conclusion of the entire case, which motions were denied (R. 728, 816–18). Each petitioner duly and timely submitted a motion for new trial (R. 970–1028) on which Judge Jones refused to rule. This evasion of duty by the trial court was, in turn, seized upon by the Alabama Supreme Court as a pretext for denying review (R. 1169–70).

The treatment afforded petitioners' motions for new trial underlines the repeated denial to petitioners of proper opportunity to be heard below. On December 2, 1960 petitioners properly and timely made, filed and submitted motions for new trials. Petitioners duly appeared, in compliance with Title 13, Sec. 119 of the Alabama Code, on December 16, 1960, the day to which said motions (and the motions of their co-defendant, The New York Times) had been continued. On March 3, 1961, the day on which, the general understanding was, the motions of petitioners and The New York Times would be heard together, the Trial Court heard extensive argument on behalf of The New York Times in support of its motion for a new trial and then refused to hear petitioners' counsel, or permit him to argue, or allow him even to make a statement for the record (R. 895–6). Despite the fact that he had petitioners' papers properly before him, Judge Jones erroneously refused repeated demands by petitioners' counsel for rulings on their motions for new trials (R. 984, 998–9, 1013, 1027–8). On March 17, 1961, Judge Jones denied the Times' motion for a new trial (R.970); arbitrarily, he never ruled on petitioners' motions (R. 895–6).

All of the foregoing rulings were properly objected to and challenged, and embodied in petitioners' Assignments of Error to the Alabama Supreme Court, duly filed therein and affixed to the certified transcript Record duly submitted and filed with this Court (R. 1100–1132).

In this setting and notwithstanding the complete absence of any evidence of or legal basis for liability of petitioners or any showing of actual damage suffered by respondent, the jury, upon the clearly erroneous instructions of the Trial Judge (R. 819–28), on November 3, 1960 rendered a one sentence verdict in "favor of the plaintiff" in the sum of $500,000 (R.862), on which the Trial Judge entered judgment¹⁰ (R. 863).