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Brief for Respondent

Summary Of Argument


The commercial advertisement in suit sought to, and did, portray criminal and rampant police state activity—an "unprecedented wave of terror"—resulting from students singing "My Country 'Tis of Thee" from the state capitol steps. This falsely alleged "wave of terror" against innocent persons was said to include expulsion from school; ringing of a college campus with truckloads of police armed with shotguns and tear gas; padlocking of the dining hall to starve protesting students into submission; and the arrest of Martin Luther King for loitering and speeding by those who had also bombed his home, assaulted his person and indicted him for perjury. The ad did not name respondent, but massive, terroristic and criminal acts of the police carry the sure meaning to the average, reasonably intelligent reader that the police activity is that of the police commissioner.

A. Alabama libel laws provided petitioner with the absolute defense of truth and with the privilege of fair comment. Petitioner did not plead or attempt to prove truth or fair comment. Its attorneys suggested in open court that the defamatory matter was not true and would not be believed, and that truth was not in issue. The Times itself, in a contemporaneous retraction for another person whom it considered to be "on a par" with respondent, admitted that the material in the ad was erroneous and misleading.

Alabama law provides for untruthful and unprivileged defamers an opportunity to retract and thereby to eliminate all damages except special. Though the Times retracted for another "on a par," it refused to do so for respondent.

The Times makes no claim that it was denied a fair and impartial trial of this libel action, and raises no question of procedural due process.

In these circumstances, no provision of the Constitution of the United States confers an absolute immunity to defame public officials. On the contrary, this Court has repeatedly held that libelous utterances are not protected by the Constitution. Beauharnais v. Illinois, 343 U.S. 250; Near v. Minnesota, 283 U.S. 697, 715; Konigsberg v. State Bar of California, 366 U.S. 36, 49–50; Roth v. U.S., 354 U.S. 476, 483; Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572; Barr v. Matteo, 360 U.S. 564; Farmers Union v. WDAY, Inc., 360 U.S. 525; and Pennekamp v. Florida, 328 U.S. 331, 348–349. Historical commentary on "freedom of the press" accords. See, Thomas Jefferson to Abigail Adams in 1804; Thomas Jefferson's Second Inaugural Address (1805); Chafee, Book Review, 62 Harvard L. Rev. 891, 897, 898 (1949). Moreover, commercial advertisements are not constitutionally protected as speech and press. Valentine v. Chrestensen, 316 U.S. 52, 54; and Breard v. City of Alexandria, 341 U.S. 622, 643. Because such libelous utterances are not 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.' " Beauharnais v. Illinois, 343 U.S. 250, 266.

B. It is fantasy for petitioner to argue that the ad which falsely charged respondent, as police commissioner, with responsibility for the criminal and rampant "unprecedented wave of terror" is "the daily dialogue of politics" and mere "political criticism" and "political expression." If the Times prevails, any false statement about any public official comes within this protected category. 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.

C. Since the Times did not invoke Alabama defenses of truth, fair comment or privilege, the question of the constitutional adequacy of these defenses is entirely academic. Nevertheless, Alabama libel law 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." Barr v. Matteo, 360 U.S. 564, 585 (dissenting opinion of Chief Justice Warren). The constitution has never required that states afford newspapers the privilege of leveling false and defamatory "facts" at persons simply because they hold public office. The great weight of American authority has rejected such a plea by newspapers. Burt v. Advertiser Company, 154 Mass. 238, 28 N. E. 1, 4 (opinion by Judge, later Mr. Justice Holmes); Post Publishing Company v. Hallam, 59 F. 530, 540 (6th Cir. 1893) (opinion by Judge, later Mr. Chief Justice Taft); Washington Times Company v. Bonner, 86 F. 2d 836, 842 (D. C. Cir. 1936); Pennekamp v. Florida, 328 U.S. 331, 348–349: "For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants."

D. Alabama's definition of libel per se as a false publication which tends to injure the person defamed in his reputation, which brings him into public contempt as a public official, or which charges him with a crime, is a familiar one and accords with that of most states. This Court approved it in Beauharnais v. Illinois, 343 U.S. 250, 257, n. 5, citing Grant v. Reader's Digest, 151 F. 2d 733, 735 (2d Cir. 1945), opinion by Judge Learned Hand; Hogan v. New York Times, 313 F. 2d 354, 355 (2d Cir. 1963). The presumption of general damages from libel per se is the majority rule throughout the country. Developments in the Law—Defamation, 69 Harvard L. Rev. 875 at 934 and 937; 3 Restatement of Torts, § 621, pp. 313–316.

E. In Alabama, as elsewhere, punitive damages and general damages, where there has been no retraction, are permitted, and the jury is given broad discretion in fixing the amount of the award. Reynolds v. Pegler, 123 F. Supp. 36, 38, affirmed 223 F. 2d 429 (2d Cir.), cert. den. 350 U.S. 846; Faulk v. Aware, Inc., 231 N. Y. S. 2d 270; and Beauharnais v. Illinois, 343 U.S. 250, 266. In assessing punitive damages, the jury may properly consider the nature and degree of the offense, as well as the higher moral consideration that these damages may deter such illegal practices in the future. The award in this case is but a fraction of two recent libel awards in the Faulk case and by a Georgia Federal jury of more than three million dollars, with punitive damages alone of two and one-half million dollars and three million dollars respectively.

This Court has always considered itself barred by the Seventh Amendment of the Constitution from setting aside state and federal damage awards as inadequate or excessive. Chicago, B. & Q. v. Chicago, 166 U.S. 226, 242–243; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474; Neese v. Southern Ry., 350 U.S. 77. Many other cases are cited in this brief.

There is no constitutional infirmity in Alabama procedure which preserves the jury's long-standing common law right to return a general verdict. Statement of Mr. Justice Black and Mr. Justice Douglas, 31 F. R. D. 617 at 618–619.

In setting punitive damages, the jury could properly contrast the judicial admissions of the Times' attorneys that the advertisement was false and the Times' retraction of the same matter for another person as misleading and erroneous, with the trial testimony of the secretary of the corporation that the advertisement was substantially correct with the exception of one incident described in the ad.


It is patently frivolous for the Times to argue that no ordinary person of reasonable intelligence could read the advertisement in suit as referring to the Montgomery police commissioner. Certainly the jury is not required as a matter of law to hold that the ad is not of and concerning respondent. Its finding is entitled to all of the safeguards of the Seventh Amendment. Gallick v. B. & O. R. Co., 372 U.S. 108; Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226 at 242–243; and Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474. While the ad's reference is clear enough, the jury heard witnesses who associated respondent with its false allegations. 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.

This Court in Beauharnais v. Illinois, 343 U.S. 250, and courts generally, have held that a plaintiff need not be named in a defamatory publication in order to have a cause of action for libel. Cosgrove Studio, Inc. v. Pane, 408 Pa. 314, 182 A. 2d 751, 753; Hope v. Hearst Consolidated Publications, supra; Nieman-Marcus v. Lait, 13 F.R. D. 311 (S. D. N. Y. 1952); National Cancer Hospital v. Confidential, Inc.. 136 N. Y. S. 2d 921; Weston v. Commercial Advertisers, 184 N. Y. 479, 77 N. E. 660; Bornmann v. Star Co., 174 N.Y. 212, 66 N. E. 723; Chapa v. Abernethy (Tex. Civ. App.), 175 S. W. 165; Gross v. Cantor, 270 N. Y. 93, 200 N. E. 592; Fullerton v. Thompson, 119 Minn. 136, 143 N. W. 260; Children v. Shinn, 168 Iowa 531, 150 N. W. 864; Reilly v. Curtiss, 53 N.J. 677, 84 A. 199; 3 Restatement of Torts, § 564 (c), p. 152; and Developments in the Law—Defamation, 69 Harvard L. Rev. 894 et seq.


A. The courts below held that under Alabama practice the Times appeared generally in the action because it objected to jurisdiction of the subject matter as well as to jurisdiction of the person. This holding, which accords with the majority rule (25 A. L. R. 2d 835 and 31 A. L. R. 2d 258) is an adequate independent state ground as to jurisdiction over the Times which bars review of that question. 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. A state court's interpretation of its own law is binding here. Fox River Paper Company v. Railroad Commission, 274 U.S. 651, 655; Guaranty Trust Company v. Blodgett, 287 U.S. 509, 513; United Gas Pipeline Company v. Ideal Cement Company, 369 U.S. 134.

B. Even if the Times had not made a general appearance in this case, effective service of process on a Times string correspondent residing in Alabama and on the Secretary of State of Alabama under a Substituted Service Statute, Title 7, § 199 (1), Alabama Code of 1940 as amended, is based on decisions of this Court so explicit as to leave no room for real controversy. Suit against the Times in Alabama accorded with traditional concepts of fairness and orderly administration of the laws. International Shoe Company v. Washington, 326 U.S. 310, 319; McGee v. International Insurance Company, 355 U.S. 220; Scripto v. Carson, 362 U.S. 207; Travelers Health Association v. Virginia, 339 U.S.643. The Times maintained three resident string correspondents in Alabama, and, since 1956, carried on an extensive, systematic and continuous course of business activity there, including news gathering, solicitation of advertising and circulation of newspapers and other products. It performed all of the functions of a newspaper outlined in Consolidated Cosmetics v. D. A. Publishing Company, 186 F. 2d 906, 908 (7th Cir. 1951). Its business activity produced more than twice the revenue which Scripto derived from Florida (see Scripto v. Carson, 362 U.S. 207), and its regular employees combined their efforts with those of independent dealers to produce this result.

It would be manifestly unfair to make respondent bring his libel suit in New York instead of in his home state where the charges were likely to harm him most. See Justice Black's dissenting opinion in Polizzi v. Cowles Magazines, 345 U.S. 663, 667.

When other business corporations may be sued in a foreign jurisdiction, so may newspaper corporations on similar facts. This Court has refused newspaper corporations special immunity from laws applicable to businesses in general. Mabee v. White Plains Publishing Co., 327 U.S. 178, 184 (Fair Labor Standards Act); Associated Press v. N. L. R. B., 301 U.S. 103 (National Labor Relations Act); and Lorain Journal Company v. United States, 342 U.S. 143 (Anti-trust laws).

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Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1954 to 1962Brief for Respondent - On Writ Of Certiorari To The Supreme Court Of Alabamabrief For Respondent, Questions Presented, Statement