Brief for Respondent

I.

When the only defect of procedural due process asserted at the trial was an alleged entire absence of evidence connecting petitioners with the publication of the ad, they cannot go outside the record and seek to present to this Court new matters—none of which were raised in the trial court, and many of which were not asserted in the Supreme Court of Alabama. Included in this category are those arguments in this Court which allege a segregated trial courtroom; a hostile and prejudiced trial atmosphere; improper newspaper and television coverage of the trial; illegal composition of the jury; improper argument of one of the lawyers for respondent; improper court reporter's designation of petitioners' attorneys in the appellate transcript of the record prepared many months after the trial was over; improper statements allegedly made by the trial judge three months after the trial had ended; pendency of other libel suits by different plaintiffs, against different defendants, regarding different publications, in different communications media, brought in different forums, with different attorneys, and different issues; illegal election of the trial judge.

Had these allegations been made before or during the trial, they would have been strongly controverted. Since these assertions of alleged federal questions were not made in timely fashion, this Court will not go outside the record to consider them. Stroble v. California, 343 U.S. 181, 193–194 (charges of inflammatory newspaper accounts and community prejudice); Michelv. Louisiana, 350 U.S. 91 (systematic exclusion of Negroes from grand jury panels not raised in time); Edelman v. California, 344 U.S. 357, 358–359 (vagueness of vagrancy statute not raised at the trial); Stembridge v. Georgia, 343 U.S. 541, 547 (federal rights asserted for first time in state appellate court); Bailey v. Anderson, 326 U.S. 203, 206–207 (same holding); Herndonv. Georgia, 295 U.S. 441, 443 (trial court rulings not preserved in accordance with state practice); Hanson v. Denckla, 357 U.S. 235, 243–244.

Since petitioners allowed their motions for new trial to lapse, they may not question the size of the verdict against them or the sufficiency of the evidence. State v. Ferguson, 269 Ala. 44, 45, 110 So. 2d 280; Shelley v. Clark, 267 Ala. 621, 625, 103 So. 2d 743.

Moreover, it is noteworthy that the Times does not argue that the trial proceedings were defective or that they were other than fair and impartial.

II.

The only federal question of due procedure raised at the trial was whether there was any evidence connecting petitioners with the publication of the ad. Positive evidence of authority for the use of their names on the ad, supplemented by evidence of their conduct and admissions, proved the case against petitioners for submission to a jury.

Their names were on the ad; and the Randolph letter, according to the Times' answers to interrogatories, showed authorization.

In addition, petitioners did not reply to Sullivan's demand for retraction which expressly charged them with publication. Their silence in the face of the inculpatory charges contained in this demand, under circumstances normally calling for a reply, was evidence from which a jury could find an admission of the statements contained in the letters demanding retraction. This failure to deny publication—not their failure to retract—is the basis of admission. A litigant will not be heard to say that his extra-judicial statements or conduct, inconsistent with his position taken at the trial, is so little worthy of credence that the trier of fact should not even consider them. Parks v. New York Times Company, 308 F. 2d 424 (5th Cir. 1962); Perry v. Johnston, 59 Ala. 648, 651; Peck v. Ryan, 110 Ala. 336, 17 So. 733; Craft v. Koonce, 237 Ala. 552, 187 So. 730; Sloss-Sheffield Co. v. Sharp, 156 Ala. 284, 47 So. 279; Annotation 70 A. L. R. 2d 1099; Wigmore on Evidence, § 1071; Morgan on Admissions, included in Selected Writings on Evidence, p. 829.

Closely allied to the doctrine of silence as admission is the equally well-established principle that one may ratify by silence and acquiescence the act of another, even though the persons involved are strangers. This Alabama rule applies whether or not there is a preexisting agency relationship. Parks v. New York Times Company, 308 F. 2d 424 (5th Cir. 1962); Birmingham News Co. v. Birmingham Printing Co., 209 Ala. 403, 407, 96 So. 336, 340–341; Goldfield v. Brewbaker Motors (Ala. App.), 36 Ala. App. 152, 54 So. 2d 797, cert. denied 256 Ala. 383, 54 So. 2d 800; Woodmen of the World Ins. Co. v. Bolin, 243 Ala. 426, 10 So. 2d 296; Belcher Lumber Co. v. York, 245 Ala. 286, 17 So. 2d 281; 1 Restatement of Agency 2d, Sec. 94, page 244; Comments (a) and (b); 3 Restatement of Agency 2d (App. pages 168 and 174).

III.

Libelous utterances are not within the area of constitutionally protected speech and press. Rothv. United States, 354 U.S. 476, 483; Beauharnais v. Illinois, 343 U.S. 250, 256; Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572; Konigsberg v. State Bar of California, 366 U.S. 36, 49–50; Nearv. Minnesota, 283 U.S. 697, 715.