Brief for Respondent

I. This court will not go outside the record to consider federal questions which were not timely raised in accordance with state procedure

This brief should be stricken for failure to comply with Rule 40 (5) of the Rules of this Court.¹⁵ In addition to the matters outside the record which were not raised in the trial court, and in some instances not even in the Supreme Court of Alabama, petitioners' brief contains lengthy expositions of cases and other materials relating to racial matters involving peonage, education, voting, housing and zoning, public transportation, parks, libraries, petit and grand jury service, municipal boundaries, and reapportionment. In the aggregate, such material and excursions from the record consume almost forty-five per cent of petitioners' brief.

Quite apart from the duty of attorneys to confine issues and discussions to matters appearing in the record, particularly when seeking review in this Court, it is noteworthy that not one of the attorneys appearing here for these petitioners was their counsel in the trial court and none was present there. These appellate attorneys are, therefore, peculiarly unqualified to comment on matters not in the record.

This Court will surely note that the brief of The New York Times in No. 39 does not support petitioners' characterization of the trial proceedings. Several of its attorneys were personally present at the trial; participated in it; and know how it was conducted. They make no complaints of trial unfairness.

This is the second time petitioners have brought their baseless charges here. Their petition in Abernathy v. Patterson, 368 U.S. 986, climaxed a parade of these same groundless attacks through the entire federal judiciary. The District Court called them "impertinent"; the Court of Appeals upheld that court's dismissal of the complaint, 295 F. 2d 452 and this Court denied certiorari.

It is too elemental for argument that this Court will not go outside the record to consider alleged federal questions which were not timely raised in accordance with state procedure. Stroble v. California, 343 U.S. 181, 193–194 (charges of inflammatory newspaper accounts and community prejudice); Michel v. 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); Herndon v. 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:

"We need not determine whether Florida was bound to give full faith and credit to the decree of the Delaware Chancellor since the question was not seasonably presented to the Florida court. Radio Station WOW v. Johnson, 326 U.S. 120, 128."

Thus, aside from the question of whether petitioners have an asserted absolute privilege to defame public officials under the guise of criticism, and thereby to avoid Alabama libel laws—a matter fully discussed in respondent's brief in No. 39, incorporated herein by reference—the only question which petitioners can argue on this record is whether it is "devoid of probative evidence of authorization or publication by any of the petitioners of the alleged libel or of any malice on their part" (Brief, p. 44).

As this Court held in Garner v. Louisiana, 368 U.S. 157, 163–164:

"As in Thompson v. Louisville (citation), our inquiry does not turn on a question of sufficiency of evidence to support a conviction, but on whether these convictions rest upon any evidence which would support a finding that the petitioners' acts caused a disturbance of the peace." (Emphasis supplied.)

II. There was ample evidence of petitioners' publication for submission to a jury

Positive evidence of authority for 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; they did not reply to Sullivan's demand for a retraction which expressly charged them with publication, and their silence in the face of the inculpatory charges contained in the demand for retraction, 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 admission came from their failure to deny publication—not their failure to retract.

Moreover, their silence and their failure in any manner to disavow the ad constituted a ratification.

The Randolph letter, according to The Times' answers to interrogatories, showed authorization. Testimony of Murray and of The Times' witness, Aaronson, has been cited. Clearly such evidence permitted a jury to decide where the truth lay. And, as pointed out, the sworn complaint in Abernathy v. Patterson, 295 F. 2d 452 (5th Cir.), cert. denied 368 U.S. 986, strongly corroborated the correctness of this verdict.

The Alabama trial court and Supreme Court held that there was a jury question on the issue of petitioners' liability as participants in the publication. The Court of Appeals in Parks v. New York Times Company, 308 F. 2d 474 (5th Cir.1962), held that the position of this respondent in the state courts had substance, and that on the question of liability of these petitioners the judgment could "go either way" (308 F. 2d at 480–481). This is the classic situation for jury determination.

It is impossible to understand petitioners' assertion here that the Court of Appeals reversed the District Court "on other grounds" (Brief, p. 44). This erroneous assertion is simply in direct conflict with the holding of the Court. Moreover, in view of the Court's extensive and exhaustive discussion of silence in the face of the inculpatory charges in the demand for retraction as evidence from which a jury could "infer ratification or adoption" (308 F. 2d at 479), it is inconceivable that petitioners argue here (Brief, p. 45) that Parks "is clearly shown by the Opinion to rest on matters not contained in the Record in this case …" The very record on the merits in this case was introduced in the District Court in Parks.

The Alabama courts and the Federal Court of Appeals were clearly correct. Petitioners, in their lengthy brief, do not even attempt to challenge the legal authorities cited by respondent in his brief in opposition (pp. 15–18) except to say that they are inapplicable (Brief, pp. 48–49). But they are not, and give solid support to the jury finding of petitioners' liability.

A. Silence as admission

1. Petitioners' silence was an admission. This failure to deny publication—not their failure to retract—is the basis of the admission. Petitioners seem unable to distinguish between a retraction and a denial of publication. It is as simple as the rationale of admissions—that 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 facts should not even consider them.¹⁶

The Legislature of Alabama, too, has given considerable importance to a demand for retraction in libel cases. Title 7, § 914, Code of Alabama (App. A of Brief in No. 39). The plaintiff in a libel suit such as this may not obtain punitive damages unless he seeks retraction from the defendant; and a defendant may eliminate his liability for punitive damages by retracting.

In much less compelling circumstances, Gould v. Kramer, 253 Mass. 433, 149 N. E. 142, 144, held that an admission of the truth of a letter charging defendant with authorship of another letter which had defamed the plaintiff could be considered from the silence of the defendant on receiving the written charge. This suit sought damages for false and malicious statements made by the defendant about the plaintiff in a letter to plaintiff's employer. Defendant contended that he had not signed or authorized the libelous matter contained in the letter.

While the principle of silence as an admission has been held not to obtain when the inculpatory statement was made in an unanswered letter, a well-recognized exception to this letter principle occurs where the unanswered letter contains a demand, or where it is part of a mutual correspondence.¹⁷

2. The absurd argument in petitioners' brief (pp. 49–52) that this rule of admissions—long a part of the law of evidence throughout this country—somehow violates a fancied federal right deserves no answer. It is undoubtedly based upon the inability of petitioners to distinguish between a denial of publication and a retraction. A denial does not involve a "dissociation" of belief in the underlying subject matter. If one has published a defamatory statement, he can and should be liable for civil damages in a common law libel action. If he had nothing to do with the defamatory publication, he certainly knows it, and is in a position to deny promptly. In short, these petitioners could have done exactly what they did at the trial—deny publication in an answer to the letter charging it.

Moreover, petitioners' argument that the retraction statute imposes too great a financial burden upon them is equally frivolous. If these petitioners had wanted a forum as wide as that of the advertisement, they could have written, most inexpensively, a letter to the New York Times for publication and there explained their alleged innocence.

These petitioners in response to the demand for retraction were not called upon to restate their views of the subject matter if in fact they had not participated in the publication. All the demand required in order to avoid this well established rule of evidence was a denial of publication. This is the rule of liability about which petitioners here complain. It involves no federal question whatever. It is as plain and simple a question of a state rule of evidence as can be imagined.

B. Petitioners ratified and acquiesced in the use of their names on the advertisement

Closely allied to the doctrine of silence as an 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. Alabama authorities and those elsewhere are thoroughly explored in Parks v. New York Times Company, 308 F. 2d 474, 480 (5th Cir. 1962).¹⁸

This Alabama rule applies whether or not there is a pre-existing agency relationship, and thereby accords with the law set out in Professor Warren A. Seavey's notes to Restatement of Agency 2d, cited in footnote eighteen.

Obviously, the foregoing matters involve plain questions of state law, and present no occasion for the exercise of certiorari jurisdiction. If there was any evidence against petitioners, there is no federal question. Two Alabama Courts and one Federal Court of Appeals have held there was.¹⁹ Apposite is this Court's observation in Stein v. New York, 346 U.S. 156, 181:

"Of course, this Court cannot allow itself to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding. But that does not mean that we give no weight to the decision below, or approach the record de novo or with the latitude of choice open to some state appellate courts, such as the New York Court of Appeals."

This case does not entitle petitioners to ask this Court to sit as a jury and substitute its collective judgment for that of the jury which tried this case.

III.

Respondent is reluctant to dignify by comment the statements in petitioners' brief which vilify respondent and his attorneys for bringing this libel suit. Surely, this Court will note the striking fact that nowhere in this lengthy and vituperative document is there the slightest suggestion that these petitioners, or indeed The New York Times, even attempted to introduce any testimony to substantiate the truth of the matters contained in the paid advertisement.

Respondent cares deeply about freedom of press and speech. And he is also concerned that these basic freedoms do not degenerate into a license to lie. As a commentator cited by petitioners has observed: "In the rise of the Nazis to power in Germany, defamation was a major weapon." Riesman, Democracy and Defamation, 42 Columbia L. Rev. 727, 728.

As venerable as John Peter Zenger is the imbedded constitutional principle that libelous utterances are not within the area of constitutionally protected speech and press.²⁰