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Brief for Respondent


Petitioners, whose names appeared in a paid advertisement in the New York Times of March 29, 1960 (described in No. 39) as "warm endorsers" of the material contained in the advertisement, were joined as co-defendants in a common law libel action against The New York Times. The nature of the ad as a defamation, and not a political expression; its extensive falsity, not one "minor discrepancy" (Brief pp. 11, 17 and 42);2 its reference to respondent; the questions of libel per se and truth as a limitation on libelous utterances; the circumstances of the ad's composition, publication and distribution; and other relevant facts of record are fully discussed in respondent's brief in No. 39. As observed there, these petitioners, two residents of Montgomery, and all residents of Alabama, introduced no testimony whatever to attempt to substantiate in any manner the truth of the defamatory material in the advertisement. Nor did they plead specially truth, or privilege.

The jury returned a joint verdict against The New York Times and petitioners in accordance with Alabama procedure,3 for Five Hundred Thousand Dollars, and the trial court entered a judgment thereon.

In the case which was tried below, as distinguished from the case which petitioners attempt to bring in this Court, the only alleged defect of due process which petitioners asserted at the trial was a contention that there was an entire absence of evidence connecting them with the publication of the advertisement.

2 Petitioners are entirely inaccurate in their observation that 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" (Brief, p. 12).

3 Such a joint verdict against joint tort-feasors is required by Alabama procedure, Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612. It is, of course, collectible only once.

Petitioners filed motions for new trial but allowed them to lapse (R. 984, 999, 1013, 1028). Petitioners' assertion that there was a "general understanding" (Brief, pp. 14–15) which should have prevented this lapse and which was violated by the trial court and presumably by respondent's attorneys is absolutely contrary to fact. The record is barren of even a hint of such an understanding. The record shows that petitioners' then attorneys (none of whom have appeared in this Court) made no attempt to continue the motion within each thirty day period as required by Alabama statutory and case law. The Times' attorneys obviously were unaware of such an "understanding" since they continued The Times' motion from January 14, 1961 to February 10, 1961 (R. 968) and from February 10, 1961 to March 3, 1961 (R. 968), when the motion was heard. Moreover, none of the assignments of error in the Supreme Court of Alabama relating to their motion for new trial (R. 1100–1132) even mentioned that there was any "understanding." Clearly there was not. And clearly the motion lapsed.4

The court below affirmed the judgment as to all defendants.

At the trial petitioners denied any connection with the publication of the advertisement. But contrary to what petitioners would have this Court believe, their denial was far from "undisputed", as this record and the following summary of it make clear. Certainly the jury was not required as a matter of law to believe petitioners' protestations of innocence.

Respondent showed at the trial that the names of the petitioners were on the advertisement. They did not reply to respondent's demand for retraction, and their silence in the face of the demand's inculpatory charges that each published the libel under circumstances normally calling for a reply, was evidence from which a jury could find that they had admitted the statements contained in the demand, namely, that they had published the material in the ad. Their failure to deny publication—not their failure to retract—is the basis of the admission.

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

In addition, a letter from A. Philip Randolph (R. 587) went to the jury without objection from petitioners as part of The Times' answer to an interrogatory asking for authorization from the signers of the advertisement.5

Though petitioners recite that "undisputed" evidence (Brief, pp. 8 and 46) established that their names were not on the Randolph letter, and called the contrary finding below "distorted," the sworn answers to the interrogatories were in evidence, and Times witness Redding, according to the Times' brief in this Court, "did not recall this difference in the list of names …" (Times Brief in No. 39, p. 16).

A witness for the Times, Aaronson, testified without objection from petitioners, that the Randolph letter was a "written communication confirming the fact that the persons whose names were given here had authorized it" (R.739), and that such a letter was "our usual authorization" (R. 740). Murray, the author of the ad, a witness for petitioners, testified that the executive director of the committee which inserted the ad, one Bayard Rustin, had stated that the southern ministers, including petitioners, did not have to be contacted or consulted since they were all members of the Southern Christian Leadership Conference, and supported the work of the committee (R. 809).

4 Title 13, § 119, Code of Alabama, 1940 (App. A. p. 29); Mount Vernon Woodbury Mills v. Judges, 200 Ala. 168, 75 So. 916; Ex parte Margart, 207 Ala. 604, 93 So. 505; Southern Ry. Co. v. Blackwell, 211 Ala. 216, 100 So. 215.

5 This letter stated:

"This will certify that the names included on the enclosed list are all signed members of the Committee to Defend Martin Luther King and The Struggle for Freedom in the South. Please be assured that they have all given me permission to use their names in furthering the work of our Committee."

6 The painstaking analysis of the Court of Appeals revealed:

1. "(The complaint) alleges that on or about March 29, 1960, 'supporters of the plaintiffs and the movement for equality which they lead' inserted in The New York Times a paid advertisement …" (295 F. 2d at 453).

2. The advertisement "purports to be signed by twenty ministers including the four plaintiffs" (295 F. 2d at 454).

3. "The complaint then alleges: 'The defendants … conspired and planned … to deter and prohibit the plaintiffs and their supporters as set forth above, from utilizing their constitutional rights and in particular their right to access to a free press, by instituting fraudulent actions in libel against the plaintiffs …' " (295 F. 2d at 454).

4. "Irreparable damage is alleged, as follows: ' … (b) … the plaintiffs herein … will be deterred from using the media of a free press and all other rights guaranteed under the 1st Amendment …' " (295 F. 2d at 454).

5. "The relief prayed for is as follows: '… (c) … Restraining each of the defendants … from engaging in the aforesaid conspiracy designed to deter and prohibit the plaintiffs from exercising rights guaranteed by the 1st and 14th Amendments with respect to freedom of speech, press …' " (295 F. 2d at 455).

6. "As has been noted (on page 454), the plaintiffs' claim of irreparable injury and loss is based (1) upon the claim that 'the plaintiffs and the Negro citizens of the State of Alabama will be deterred from using the media of a free press …' " (295 F. 2d at 456).

7. "Libelous utterances or publications are not within the area of constitutionally protected speech and press. The plaintiffs' claim that they will be deterred from using the media of a free press must therefore be predicated upon their claims of denial of a fair and impartial trial of the libel actions and the absence of a plain, adequate and complete remedy at law" (295 F. 2d at 456–457).

While not in this record, the report of Abernathy v. Patterson, 295 F. 2d 452 (5th Cir.), cert. den. 368 U.S. 986, shows that the complaint of these petitioners in that case verified by oath of Petitioner Abernathy strongly underlines the correctness of the jury verdict.6

The foregoing states the facts relating to this case.

The following matters, stated by petitioners to be in this case, are not.

A. Matters outside the record which petitioners did not raise in the trial court, but attempted to raise for the first time in the Supreme Court of Alabama

1. An alleged racially segregated court room. There is nothing in the record to support this. It was not raised in the trial court. Had it been, respondent would have strongly controverted the allegation as entirely untrue.7

2. An alleged "atmosphere of racial bias, passion and hostile community pressures" (Petition, p. 2). This was not raised in the trial court. There was no motion for change of venue, continuance, or for mistrial, though three lawyers represented the petitioners and five represented The New York Times at the trial (R. 567–568). Their silence in this regard speaks eloquently for the fair and impartial manner in which the trial judge conducted the trial. There is nothing in the record to support this allegation.

3. Alleged improper newspaper and television coverage at the trial. This was not raised in the trial court, nor were there motions for mistrial, change of venue, or continuance. There is nothing in the record to support the allegations. Had there been timely trial motions attacking the propriety of newspaper and television coverage of the trial, respondent would have strongly controverted them.

4. Alleged intentional and systematic exclusion of Negroes from the jury. This was not raised in the trial court and there is nothing in the record to support the allegation. Had the allegation been made, respondent would have strongly controverted it.8

5. Alleged unqualified trial judge—illegally elected and illegally a member of the county jury commission. This matter was not raised in the trial court. There was no motion seeking disqualification of the trial judge. There is nothing in the record to support the allegation. Had the charge been made in timely fashion, it would have been strongly controverted.

6. Alleged improper closing argument of one of the attorneys for respondent. There is nothing in the trial record about this. No objection to any argument of any attorney is in the record. There was no motion for mistrial. Had such objection or motion been made, respondent would have strongly controverted any suggestion of an improper argument. It is noteworthy that the Times makes no such allegation in this Court.

7 Petitioners tell this Court that court room segregation "has been judicially noted to be a longstanding practice in the state courts of Alabama …" (Brief, p. 53). They cite U.S. ex rel. Seals v. Wiman, 304 F. 2d 53 (5th Cir. 1962). But that case specifically held that the question of a segregated courthouse, there sought to be raised, "[was] not presented to the State courts on the appeal from the judgment of conviction, on the petition for leave to file coram nobis, or in any other manner. Those questions cannot therefore be considered here" (304 F. 2d at 56).

8 When this question was appropriately raised in a recent case, the method of selecting Montgomery County juries passed constitutional muster in this Court. Reeves v. Alabama, 355 U.S. 368, dismissing the writ of certiorari "as improvidently granted."

9 (R. 1165) citing Thomason v. Silvey, 123 Ala. 694, 26 So. 644; and Alabama Gas Company v. Jones, 244 Ala. 413, 13 So. 2d 873.

The record references contained in petitioners' brief on some of these points concern testimony offered by The Times in support of its motion for new trial, after petitioners' motion had lapsed. As the court below held, the trial court correctly excluded such evidence under the well-settled Alabama rule that only when newly discovered evidence is the basis for a motion for new trial is the trial court permitted to extend the hearing to matters not contained in the record of the trial.9 Obviously the Times and these petitioners realize that the trial court ruling was correct. No petitioner challenges the ruling of the courts below here. Unlike the Times, however, these petitioners simply cite this rejected material as evidence anyway, and ask this Court to consider matters outside the record which were not raised in the trial below.

B. Matters outside the record which petitioners did not seek to raise in the trial court or in the Supreme Court of Alabama

1. Petitioners object to the court reporter's transcript designation of their attorneys as "Lawyer." This matter was not raised in either court below. The record was obviously transcribed by the court reporter after the trial was over. It was prepared at the instance of The New York Times; filed by The Times with the clerk of the trial court; and "joined in" by these petitioners (R. 1031). Under Alabama procedure, these petitioners had an opportunity to make any objection to the transcript which they desired, and to bring the matter to the attention of the trial court for ruling.10 Moreover, the transcript, noting appearances, refers to these, and all other attorneys, as "Esq." (R. 567–568).

Obviously these designations by the court reporter are his own, and were made after the trial had closed. They do not purport to be, nor are they, quotations of the manner of address used by the attorneys in the case or by the trial judge. A search of the record reveals that only an attorney for the New York Times used this form of address in the proceedings before the trial court without a jury.11

2. Petitioners object to an alleged statement by the trial judge regarding "white man's justice," said to have been made by him three months after this trial concluded. The matter was not raised in either court below. There was no motion to disqualify the judge.

But this record does reveal that this judge stated to the jury in his oral charge (R. 819–20):

"Now, one other thing I would like to say although I think it is hardly necessary—one of the defendants in this case is a corporate defendant and some of the others belong to various races and in your deliberation in arriving at your verdict, all of these defendants whether they be corporate or individuals or whether they belong to this race or that doesn't have a thing on earth to do with this case but let the evidence and the law be the two pole stars that will guide you and try to do justice in fairness to all of these parties here. They have no place on earth to go to settle this dispute except to come before a Court of our country and lay the matter before a jury of twelve men in whose selection each party has had the right to participate and out of all the jurors we had here at this term of Court, some fifty jurors, the parties here have selected you because they have confidence in your honesty, your integrity, your judgment and your common sense. Please remember, gentlemen of the jury, that all of the parties that stand here stand before you on equal footing and are all equal at the Bar of Justice."

3. The allegation that there was a "general understanding" about petitioners' motion for new trial has already been covered. The point was not raised in either court below.

4. The allegation that an all-white jury deprived petitioners of their rights. This allegation was not made in either court below. Any such allegation of misconduct on the part of the jury would have been strongly controverted by respondent.

5. The pendency of other libel suits is a matter entirely outside this record; and not presented in either court below. The utter desperation involved in this attempt to bring in other libel suits is fully discussed in respondent's Brief in Opposition in No. 39. The argument will not be repeated here. The baseless and totally unfounded charge that this case is "part of a concerted, calculated program to carry out a policy of punishing, intimidating and silencing all who criticize and seek to change Alabama's notorious political system of enforced segregation" (Brief, p. 29) is simply a figment of the imagination of petitioners and their appellate lawyers. The charge is totally without foundation in the record or in fact. Significantly, none of the numerous attorneys representing the Times and these petitioners at the trial even questioned respondent about such a preposterous matter.

6. Alleged "deliberate, arbitrary, capricious, and discriminatory misapplications of law" (Petition, p. 12). It is impossible to determine what the reference is. It cannot have been raised in either court below.

10 Title 7, § 827 (1a), Alabama Code, Appendix A, p. 27.

11 "Mr. Embry: … I will read Lawyer Gray's examinations"(R. 550).

"Mr. Embry: At this time, your Honor, Lawyer Gray said, 'That's all' " (R. 551).

It is not clear from petitioners' brief whether they claim that these matters outside the record (sub-heads "A" and "B") were raised by "steps" said to have been taken "to preserve their constitutional rights"(Brief, p. 14). Petitioners summarize these "steps" as demurrers to the complaint; objections to the admission of evidence; motions to exclude evidence as insufficient; motions for special jury findings; written requests to charge the jury; and motions for directed verdict in their favor (Brief, p. 14). Obviously, such "steps" could not raise the foregoing points in "A" and "B" under any known rules of practice. It is perfectly plain that the questions were never presented at the trial. And later observations that the questions are "inherent and implicit in the trial transcript" (Brief, p. 59), and "shockingly manifest outside the transcript as well" (Brief, p. 60), reveal clearly that petitioners, too, know these matters were never raised, and are not part of the record before this Court.

C. Matters raised below but concluded to petitioners' apparent satisfaction at the time

This category relates to the pronunciation of the word "Negro." This entirely spurious objection vanished when, whatever the pronunciation had been, the pronouncing attorney was told to "read it just like it is" (R. 579). That was the end of the matter. No further objection was lodged by counsel for these petitioners, even though respondent's counsel spoke the word on at least a dozen additional occasions.12 Moreover, there is nothing in the record to show precisely how the word was pronounced.

D. Matters foreclosed from the statement of facts by virtue of petitioners' improper procedure below

When petitioners allowed their motions for new trial to lapse, they were foreclosed from raising questions regarding alleged excessiveness of the verdict or alleged insufficiency of the evidence.13

Additional topics

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 Respondent1, Questions Presented, Statement