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Brief for the Petitioners

Constitutional And Statutory Provisions Involved

The Constitutional provisions involved are the First, Fourteenth and Fifteenth Amendments to the United States Constitution which are set forth in Appendix B, infra, pp. 65–66.

The Statutes involved are Title 7, Sections 913–16 of the Code of Alabama (i.e., the Alabama "Retraction" Statute) and Title 14, Sections 347 and 350 thereof (i.e., the Alabama "Criminal Libel" Statute) which read as follows:

Title 7, Section 913 of the Code of Alabama:

"RETRACTION MITIGATES DAMAGES.—The defendant in an action of slander or libel may prove under the general issue in mitigation of damages that the charge was made by mistake or through inadvertence, and that he has retracted the charge and offered amends before suit by publishing an apology in a newspaper when the charge had been thus promulgated, in a prominent position; or verbally, in the presence of witnesses, when the accusation was verbal or written, and had offered to certify the same in writing."

Title 7, Section 914 of the Code of Alabama:

1 By letter of the Clerk of this Court dated August 9, 1963, the time of petitioners to file this brief has been extended to September 9, 1963.

2 Influenced by the landmark decisions of this Court in the "sit in" cases (n. 6, infra), NAACP v. Button, 371 U.S. 415 and Johnson v. Virginia, 373 U.S. 61 among others, and the historic events which have taken place since the filing of the petition for writ of certiorari herein on November 21, 1962, petitioners have in this brief consolidated the five questions there presented to this Court so as to focus their argument on the all-pervasive issue of the impingement on and serious threat to their First and Fourteenth Amendment rights.

3 Judge Jones On Courtroom Segregation, 22 The Alabama Lawyer, No. 2, pp. 190–192 (1961), which reprints "Statement made from the Bench of the Circuit Court of Montgomery County, February 1, 1961, …" during the trial of the related libel action by Mayor Earl James of Montgomery against The New York Times Company and the four Negro petitioners herein. On March 17, 1961, Judge Jones entered his order denying the new trial application herein (R. 970).

"AGGRIEVED PERSON MUST GIVE NOTICE TO PUBLISHERS OF ALLEGED LIBEL BEFORE VINDICTIVE DAMAGES CAN BE RECOVERED.—Vindictive or punitive damages shall not be recovered in any action for libel on account of any publication concerning the official conduct or actions of any public officer, or for the publication of any matter which is proper for public information, unless five days before the bringing of the suit the plaintiff shall have made written demand upon the defendant for a public retraction of the charge or matter published; and the defendant shall have failed or refused to publish within five days in as prominent and public a place or manner as the charge or matter published occupied, a full and fair retraction of such charge or matter."

Title 7, Section 915 of the Code of Alabama:

"WHEN ACTUAL DAMAGES ONLY RECOVERABLE.—If it shall appear on the trial of an action for libel that an article complained of was published in good faith, that its falsity was due to mistake and misapprehension, and that a full correction or retraction of any false statement therein was published in the next regular issue of said newspaper, or in case of daily newspapers, within five days after service of said notice aforesaid, in as conspicuous a place and type in said newspaper as was the article complained of, then the plaintiff in such case shall recover only actual damages."

Title 7, Section 916 of the Code of Alabama:

"RECANTATION AND TENDER; EFFECT OF.—If the defendant, after or before suit brought, make the recantation and amends recited in the preceding sections, and also tender to the plaintiff a compensation in money, and bring the same into court, the plaintiff can recover no costs, if the jury believe and find the tender was sufficient."

Title 14, Section 347 of the Code of Alabama:

"LIBEL.—Any person who publishes a libel of another which may tend to provoke a breach of the peace, shall be punished, on conviction, by fine and imprisonment in the county jail, or hard labor for the county; the fine not to exceed in any case five hundred dollars, and the imprisonment or hard labor not to exceed six months."

Title 14, Section 350 of the Code of Alabama:

"DEFAMATION.—Any person who writes, prints, or speaks of and concerning any woman, falsely imputing to her a want of chastity; and any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude, shall, on conviction, be punished by fine not exceeding five hundred dollars, and imprisonment in the county jail, or sentenced to hard labor for the county, not exceeding six months; one or both, at the discretion of the jury.

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Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1954 to 1962Brief for the Petitioners - On Writ Of Certiorari To The Supreme Court Of Alabamabrief For The Petitioners, Questions Presented2, Constitutional And Statutory Provisions Involved