Brief for the Petitioners

In the Supreme Court of the United States
October Term, 1963
No. 39

THE NEW YORK TIMES COMPANY, PETITIONER,
V.
L. B. SULLIVAN, RESPONDENT

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA
BRIEF FOR THE PETITIONER

LOUIS M. LOEB
T. ERIC EMBRY
MARVIN E. FRANKEL
RONALD S. DIANA
DORIS WECHSLER
LORD, DAY & LORD
BEDDOW, EMBRY & BEDDOW
OF COUNSEL

HERBERT BROWNELL
THOMAS F. DALY
25 BROADWAY
NEW YORK 4, NEW YORK

HERBERT WECHSLER
435 WEST 116TH ST.
NEW YORK 27, NEW YORK
ATTORNEYS FOR PETITIONER
THE NEW YORK TIMES COMPANY

Index

Opinions Below

Jurisdiction

Questions Presented

Statement

1. The Nature of the Publication
2. The Allegedly Defamatory Statements
3. The Impact of the Statements on Respondent's Reputation
4. The Circumstances of the Publication
5. The Response to the Demand for a Retraction
6. The Rulings on the Merits
7. The Jurisdiction of the Alabama Courts

Summary of Argument

Argument

• I. The decision rests upon a rule of liability for criticism of official conduct that abridges freedom of the press
  First: The State Court's Misconception of the Constitutional Issues
  Second: Seditious Libel and the Constitution
  Third: The Absence of Accommodation of Conflicting Interests
  Fourth: The Relevancy of the Official's Privilege
  Fifth: The Protection of Editorial Advertisements
• II. Even if the rule of liability were valid on its face, the judgment rests on an invalid application
  First: The Scope of Review
  Second: The Failure to Establish Injury or Threat to Respondent's Reputation
  Third: The Magnitude of the Verdict
• III. The assumption of jurisdiction in this action by the Courts of Alabama contravenes the Constitution
  First: The Finding of a General Appearance
  Second: The Territorial Limits of Due Process
  Third: The Burden on Commerce
  Fourth: The Freedom of the Press

Conclusion

Appendix A

Appendix B

OPINIONS BELOW

The opinion of the Supreme Court of Alabama (R. 1139) is reported in 273 Ala. 656, 144 So. 2d 25. The opinion of the Circuit Court, Montgomery County, on the petitioner's motion to quash service of process (R. 49) is unreported. There was no other opinion by the Circuit Court.

JURISDICTION

The judgment of the Supreme Court of Alabama (R. 1180) was entered August 30, 1962. The petition for a writ of certiorari was filed November 21, 1962 and was granted January 7, 1963. 371 U.S. 946. The jurisdiction of this Court is invoked under 28 U.S.C. 1257 (3).

QUESTIONS PRESENTED

1. Whether, consistently with the guarantee of freedom of the press in the First Amendment as embodied in the Fourteenth, a State may hold libelous per se and actionable by an elected City Commissioner published statements critical of the conduct of a department of the City Government under his general supervision, which are inaccurate in some particulars.
2. Whether there was sufficient evidence to justify, consistently with the constitutional guarantee of freedom of the press, the determination that published statements naming no individual but critical of the conduct of the "police" were defamatory as to the respondent, the elected City Commissioner with jurisdiction over the Police Department, and punishable as libelous per se.
3. Whether an award of $500,000 as "presumed" and punitive damages for libel constituted, in the circumstances of this case, an abridgment of the freedom of the press.
4. Whether the assumption of jurisdiction in a libel action against a foreign corporation publishing a newspaper in another State, based upon sporadic news gathering activities by correspondents, occasional solicitation of advertising and minuscule distribution of the newspaper within the forum state, transcended the territorial limitations of due process, imposed a forbidden burden on interstate commerce or abridged the freedom of the press.

Constitutional and statutory provisions involved The constitutional and statutory provisions involved are set forth in Appendix A, infra, pp. 91–95.

STATEMENT

On April 19, 1960, the respondent, one of three elected Commissioners of the City of Montgomery, Alabama, instituted this action in the Circuit Court of Montgomery County against The New York Times, a New York corporation, and four co-defendants resident in Alabama, Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery. The complaint (R. 1) demanded $500,000 as damages for libel allegedly contained in two paragraphs of an advertisement (R. 6) published in The New York Times on March 29, 1960. Service of process was attempted by delivery to an alleged agent of The Times in Alabama and by substituted service (R. 11) pursuant to the "long-arm" statute of the State. A motion to quash, asserting constitutional objections to the jurisdiction of the Circuit Court (R. 39, 43–44, 47, 129) was denied on August 5, 1960 (R. 49). A demurrer to the complaint (R. 58, 67) was overruled on November 1, 1960 (R. 108) and the cause proceeded to a trial by jury, resulting on November 3 in a verdict against all defendants for the full $500,000 claimed (R. 862). A motion for new trial (R. 896, 969) was denied on March 17, 1961 (R. 970). The Supreme Court of Alabama affirmed the judgment on August 30, 1962 (R. 1180).¹ The Circuit Court and the Supreme Court both rejected the petitioner's contention that the liability imposed abridged the freedom of the press.

1. The nature of the publication The advertisement, a copy of which was attached to the complaint (R. 1, 6), consisted of a full page statement (reproduced in Appendix B, infra p.97) entitled "Heed Their Rising Voices," a phrase taken from a New York Times editorial of March 19, 1960, which was quoted at the top of the page as follows: "The growing movement of peaceful mass demonstrations by Negroes is something new in the South, something understandable … Let Congress heed their rising voices, for they will be heard."

The statement consisted of an appeal for contributions to the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South" to support "three needs—the defense of Martin Luther King—the support of the embattled students—and the struggle for the right-to-vote." It was set forth over the names of sixty-four individuals, including many who are well known for achievement in religion, humanitarian work, public affairs, trade unions and the arts. Under a line reading "We in the South who are struggling daily for dignity and freedom warmly endorse this appeal" appeared the names of twenty other persons, eighteen of whom are identified as clergymen in various southern cities. A New York address and telephone number were given for the Committee, the officers of which were also listed, including three individuals whose names did not otherwise appear.

The first paragraph of the statement alluded generally to the "non-violent demonstrations" of Southern Negro students "in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." It went on to charge that in "their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom…. "

The second paragraph told of a student effort in Orangeburg, South Carolina, to obtain service at lunch counters in the business district and asserted that the students were forcibly ejected, tear-gassed, arrested en masse and otherwise mistreated.

The third paragraph spoke of Montgomery, Alabama and complained of the treatment of students who sang on the steps of the State Capitol, charging that their leaders were expelled from school, that truckloads of armed police ringed the Alabama State College Campus and that the College dining-hall was padlocked in an effort to starve the protesting students into submission.

The fourth paragraph referred to "Talla-hassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte and a host of other cities in the South," praising the action of "young American teenagers, in face of the entire weight of official state apparatus and police power," as "protagonists of democracy."

The fifth paragraph speculated that "The Southern violators of the Constitution fear this new, non-violent brand of freedom fighter … even as they fear the upswelling right-to-vote movement," that "they are determined to destroy the one man who more than any other, symbolizes the new spirit now sweeping the South—the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest." It went on to portray the leadership role of Dr. King and the Southern Christian Leadership Conference, which he founded, and to extol the inspiration of "his doctrine of non-violence."

The sixth paragraph asserted that the "Southern violators" have repeatedly "answered Dr. King's protests with intimidation and violence" and referred to the bombing of his home, assault upon his person, seven arrests and a then pending charge of perjury. It stated that "their real purpose is to remove him physically as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South", concluding that the defense of Dr. King "is an integral part of the total struggle for freedom in the South."

The remaining four paragraphs called upon "men and women of good will" to do more than "applaud the creative daring of the students and the quiet heroism of Dr. King" by adding their "moral support" and "the material help so urgently needed by those who are taking the risks, facing jail and even death in a glorious reaffirmation of our Constitution and its Bill of Rights."

2. The allegedly defamatory statements Of the ten paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel.

(a) The third paragraph was as follows:

"In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shot-guns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."

Though the only part of this statement that respondent thought implied a reference to him was the assertion about "truckloads of police" (R. 712), he undertook and was permitted to deal with the paragraph in general by adducing evidence depicting the entire episode involved. His evidence consisted mainly of a story by Claude Sitton, the southern correspondent of The Times, published on March 2, 1960 (R. 655, 656–7, Pl. Ex. 169, R. 1568), a report requested by The Times from Don McKee, its "stringer" in Montgomery, after institution of this suit was threatened (R. 590–593, Pl. Ex. 348, R. 1931–1935), and a later telephoned report from Sitton to counsel for The Times, made on May 5, after suit was brought (R. 593–595, Pl. Ex. 348, R. 1935–1937).

This evidence showed that a succession of student demonstrations had occurred in Montgomery, beginning with an unsuccessful effort by some thirty Alabama State College students to obtain service at a lunch counter in the Montgomery County Court House. A thousand students had marched on March 1, 1960, from the College campus to the State Capitol, upon the steps of which they said the Lord's Prayer and sang the National Anthem before marching back to the campus. Nine student leaders of the lunch counter demonstration were expelled on March 2 by the State Board of Education, upon motion of Governor Patterson, and thirty-one others were placed on probation (R. 696–699, Pl. Ex. 364, R. 1972–1974), but the singing at the Capitol was not the basis of the disciplinary action or mentioned at the meeting of the Board (R. 701). Alabama State College students stayed away from classes on March 7 in a strike in sympathy with those expelled but virtually all of them returned to class after a day and most of them re-registered or had already done so. On March 8, there was another student demonstration at a church near the campus, followed by a march upon the campus, with students dancing around in conga lines and some becoming rowdy. The superintendent of grounds summoned the police and the students left the campus, but the police arrived as the demonstrators marched across the street and arrested thirty-two of them for disorderly conduct or failure to obey officers, charges on which they later pleaded guilty and were fined in varying amounts (R. 677–680, 681, 682).

A majority of the student body was probably involved at one time or another in the protest but not the "entire student body". The police did not at any time "ring" the campus, although they were deployed near the campus on three occasions in large numbers. The campus dining hall was never "padlocked" and the only students who may have been barred from eating were those relatively few who had neither signed a pre-registration application nor requested temporary meal tickets (R. 594, 591).

The paragraph was thus inaccurate in that it exaggerated the number of students involved in the protest and the extent of police activity and intervention. If, as the respondent argued (R.743), it implied that the students were expelled for singing on the steps of the Capitol, this was erroneous; the expulsion was for the demand for service at a lunch counter in the Courthouse. There was, moreover, no foundation for the charge that the dining hall was padlocked in an effort to starve the students into submission, an allegation that especially aroused resentment in Montgomery (R. 605, 607, 949, 2001, 2002, 2007).

(b) The portion of the sixth paragraph of the statement relied on by respondent read as follows:

"Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with 'perjury'—a felony under which they could imprison him for ten years."

As to this paragraph, which did not identify the time or place of the events recited, but which respondent read to allude to himself because it also "describes police action" (R. 724), his evidence showed that Dr. King's home had in fact been bombed twice when his wife and child were at home, though one of the bombs failed to explode—both of the occasions antedating the respondent's tenure as Commissioner (R. 594, 685, 688); that Dr. King had been arrested only four times, not seven, three of the arrests preceding the respondent's service as Commissioner (R. 592, 594–595, 703); that Dr. King had in fact been indicted for perjury on two counts, each carrying a possible sentence of five years imprisonment (R. 595), a charge on which he subsequently was acquitted (R. 680). It also showed that while Dr. King claimed to have been assaulted when he was arrested some four years earlier for loitering outside a courtroom (R.594), one of the officers participating in arresting him and carrying him to a detention cell at headquarters denied that there was a physical assault (R. 692–693)—this incident also antedating the respondent's tenure as Commissioner (R. 694).

On the theory that the statement could be read to charge that the bombing of Dr. King's home was the work of the police (R. 707), respondent was permitted to call evidence that the police were not involved; that they in fact dismantled the bomb that did not explode; and that they did everything they could to apprehend the perpetrators of the bombings (R. 685–687)—also before respondent's tenure as Commissioner (R. 688). In the same vein, respondent testified himself that the police had not bombed the King home or assaulted Dr. King or condoned the bombing or assaulting; and that he had had nothing to do with procuring King's indictment (R. 707–709).

3. The impact of the statements on respondent's reputation As one of the three Commissioners of the City of Montgomery since October 5, 1959, specifically Commissioner of Public Affairs, respondent's duties were the supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales (R. 703). He was normally not responsible, however, for day-to-day police operations, including those during the Alabama State College episode referred to in the advertisement, these being under the immediate supervision of Montgomery's Chief of Police—though there was one occasion when the Chief was absent and respondent supervised directly (R. 720). It was stipulated that there were 175 full time policemen in the Montgomery Police Department, divided into three shifts and four divisions, and 24 "special traffic directors" for control of traffic at the schools (R. 787).

As stated in respondent's testimony, the basis for his role as aggrieved plaintiff was the "feeling" that the advertisement, which did not mention him or the Commission or Commissioners or any individual, "reflects not only on me but on the other Commissioners and the community" (R. 724). He felt particularly that statements referring to "police activities" or "police action" were associated with himself, impugning his "ability and integrity" and reflecting on him "as an individual" (R. 712, 713, 724). He also felt that the other statements in the passages complained of, such as that alluding to the bombing of King's home, referred to the Commissioners, to the Police Department and to him because they were contained in the same paragraphs as statements mentioning police activities (R. 717–718), though he conceded that as "far as the expulsion of students is concerned, that responsibility rests with the State Department of Education" (R. 716).

In addition to this testimony as to the respondent's feelings, six witnesses were permitted to express their opinions of the connotations of the statements and their effect on respondent's reputation.

Grover C. Hall, editor of the Montgomery Advertiser, who had previously written an editorial attacking the advertisement (R. 607, 613, 949), testified that he thought he would associate the third paragraph "with the City Government—the Commissioners" (R. 605) and "would naturally think a little more about the police commissioner" (R. 608). It was "the phrase about starvation" that led to the association; the "other didn't hit" him "with any particular force" (R. 607, 608). He thought "starvation is an instrument of reprisal and would certainly be indefensible … in any case" (R. 605).

Arnold D. Blackwell, a member of the Water Works Board appointed by the Commissioners (R. 621) and a businessman engaged in real estate and insurance (R. 613), testified that the third paragraph was associated in his mind with "the Police Commissioner" and the "people on the police force"; that if it were true that the dining hall was padlocked in an effort to starve the students into submission, he would "think that the people on our police force or the heads of our police force were acting without their jurisdiction and would not be competent for the position" (R. 617, 624). He also associated the statement about "truck-loads of police" with the police force and the Police Commissioner (R. 627). With respect to the "Southern violators" passage, he associated the statement about the arrests with "the police force" but not the "sentences above that" (R. 624) or the statement about the charge of perjury (R. 625).

Harry W. Kaminsky, sales manager of a clothing store (R. 634) and a close friend of the respondent (R. 644), also associated the third paragraph with "the Commissioners" (R. 635), though not the statement about the expulsion of the students (R. 639). Asked on direct examination about the sentences in the sixth paragraph, he said that he "would say that it refers to the same people in the paragraph that we look at before," i.e., to "The Commissioners," including the respondent (R. 636). On cross-examination, however, he could not say that he associated those statements with the respondent, except that he thought that the reference to arrests "implicates the Police Department … or the authorities that would do that—arrest folks for speeding and loitering and such as that" (R. 639-640). In general, he would "look at" the respondent when he saw "the Police Department" (R. 641).

H. M. Price, Sr., owner of a small food equipment business (R. 644), associated "the statements contained" in both paragraphs with "the head of the Police Department," the respondent (R. 646). Asked what it was that made him think of the respondent, he read the first sentence of the third paragraph and added: "Now, I would just automatically consider that the Police Commissioner in Montgomery would have to put his approval on those kind of things as an individual" (R. 647). If he believed the statements contained in the two paragraphs to be true, he would "decide that we probably had a young Gestapo in Montgomery" (R. 645–646).

William M. Parker, Jr., a friend of the respondent and of Mayor James (R. 651), in the service station business, associated "those statements in those paragraphs" with the City Commissioners (R. 650) and since the respondent "was the Police Commissioner," he "thought of him first" (R.651). If he believed the statements to be true, he testified that he would think the respondent "would be trying to run this town with a strong arm—strong armed tactics, rather, going against the oath he took to run his office in a peaceful manner and an upright manner for all citizens of Montgomery" (R. 650).

Finally, Horace W. White, proprietor of the P. C. White Truck Line (R. 662), a former employer of respondent (R. 664), testified that both of the paragraphs meant to him "Mr. L. B. Sullivan" (R. 663). The statement in the advertisement that indicated to him that it referred to the respondent was that about "truck-loads of police," which made him think of the police and of respondent "as being the head of the Police Department" (R. 666). If he believed the statements, he doubted whether he "would want to be associated with anybody who would be a party to such things" (R. 664) and he would not re-employ respondent for P. C. White Truck Line if he thought that "he allowed the Police Department to do the things the paper say he did" (R. 667, 664, 669).

None of the six witnesses testified that he believed any of the statements that he took to refer to respondent and all but Hall specifically testified that they did not believe them (R. 623, 636, 647, 651, 667). None was led to think less kindly of respondent because of the advertisement (R. 625, 638, 647, 651, 666). Nor could respondent point to any injury that he had suffered or to any sign that he was held in less esteem (R. 721–724).

Four of the witnesses, moreover, Blackwell, Kaminsky, Price and Parker, saw the publication first when it was shown to them in the office of respondent's counsel to equip them as witnesses (R. 618, 637, 643, 647, 649). Their testimony should, therefore, have been disregarded under the trial court's instruction that the jury should "disregard … entirely" the testimony of any witness "based upon his reading of the advertisement complained of here, only after having been shown a copy of same by the plaintiff or his attorneys" (R. 833). White did not recall when he first saw the advertisement; he believed, though he was not sure, that "somebody cut it out of the paper and mailed it" to him or left it on his desk (R. 662, 665, 668). Only Hall, whose testimony was confined to the phrase about starving students into submission (R. 605, 607), received the publication in ordinary course at The Montgomery Advertiser (R. 606, 726–727).

4. The circumstances of the publication The advertisement was published by The Times upon an order from the Union Advertising Service, a reputable New York advertising agency, acting for the Committee to Defend Martin Luther King (R. 584–585, 737, Pl. Ex. 350, R. 1957). The order was dated March 28, 1960, but the proposed typescript of the ad had actually been delivered on March 23 by John Murray, a writer acting for the Committee, who had participated in its composition (R. 731,805). Murray gave the copy to Gershon Aaronson, a member of the National Advertising Staff of The Times specializing in "editorial type" advertisements (R. 731, 738), who promptly passed it on to technical departments and sent a thermo-fax copy to the Advertising Acceptability Department, in charge of the screening of advertisements (R. 733, 734, 756).D. Vincent Redding, the manager of that department, read the copy on March 25 and approved it for publication (R. 758). He gave his approval because he knew nothing to cause him to believe that anything in the proposed text was false and because it bore the endorsement of "a number of people who are well known and whose reputation" he "had no reason to question" (R. 758, 759–760, 762–763). He did not make or think it necessary to make any further check as to the accuracy of the statements (R. 765, 771).

When Redding passed on the acceptability of the advertisement, the copy was accompanied by a letter from A. Philip Randolph, Chairman of the Committee, to Aaronson, dated March 23(R. 587, 757, Def. Ex. 7, R. 1992) and reading:

"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 us permission to use their names in furthering the work of our Committee."

The routine of The Times is to accept such a letter from a responsible person to establish that names have not been used without permission and Redding followed that practice in this case (R. 759). Each of the individual defendants testified, however, that he had not authorized the Committee to use his name (R. 787–804) and Murray testified that the original copy of the advertisement, to which the Randolph letter related, did not contain the statement "We in the South … warmly endorse this appeal" or any of the names printed there under, including those of these defendants. That statement and those names were added, he explained, to a revision of the proof on the suggestion of Bayard Rustin, the Director of the Committee. Rustin told Murray that it was unnecessary to obtain the consent of the individuals involved since they were all members of the Southern Christian Leadership Conference, as indicated by its letterhead, and "since the SCLC supports the work of the Committee … he [Rustin] … felt that there would be no problem at all, and that you didn't even have to consult them" (R. 806–809). Redding did not recall this difference in the list of names (R. 767), though Aaronson remembered that there "were a few changes made … prior to publication" (R. 739).

The New York Times has set forth in a booklet its "Advertising Acceptability Standards" (R. 598, Pl. Ex. 348, Exh. F, R. 1952) declaring, inter alia, that The Times does not accept advertisements that are fraudulent or deceptive, that are "ambiguous in wording and … may mislead" or "[a]ttacks of a personal character." In replying to the plaintiff's interrogatories, Harding Bancroft, Secretary of The Times, deposed that "as the advertisement made no attacks of a personal character upon any individual and otherwise met the advertising acceptability standards promulgated" by The Times, D. Vincent Redding had approved it (R. 585).

Though Redding and not Aaronson was thus responsible for the acceptance of the ad, Aaronson was cross-examined at great length about such matters as the clarity or ambiguity of its language (R. 741–753), the court allowing the interrogation on the stated ground that "this gentleman here is a very high official of The Times," which he, of course, was not (R. 744). In the course of this colloquy, Aaronson contradicted himself on the question whether the word "they" in the "Southern violators" passage refers to "the same people" throughout or to different people, saying first "It is rather difficult to tell" (R. 745) and later: "I think now that it probably refers to the same people" (R. 746). Redding was not interrogated on this point, which respondent, in his Brief in Opposition, deemed established by what Aaronson "conceded" (Brief in Opposition, p. 7).

The Times was paid "a little over" $4800 for the publication of the advertisement (R. 752). The total circulation of the issue of March 29, 1960, was approximately 650,000, of which approximately 394 copies were mailed to Alabama subscribers or shipped to news dealers in the State, approximately 35 copies going to Montgomery County (R. 601–602, Pl. Ex. 348, R. 1942–1943).

5. The response to the demand for a retraction On April 8, 1960, respondent wrote to the petitioner and to the four individual defendants, the letters being erroneously dated March 8 (R. 588, 671, 776, Pl. Ex. 348, 355–358, R. 1949, 1962–1968). The letters, which were in identical terms, set out the passages in the advertisement complained of by respondent, asserted that the "foregoing matter, and the publication as a whole charge me with grave misconduct and of [sic] improper actions and omissions as an official of the City of Montgomery" and called on the addressee to "publish in as prominent and as public a manner as the foregoing false and defamatory material contained in the foregoing publication, a full and fair retraction of the entire false and defamatory matter so far as the same relates to me and to my conduct and acts as a public official of the City of Montgomery, Alabama."

Upon receiving this demand and the report from Don McKee, the Times stringer in Montgomery referred to above (p. 7), petitioner's counsel wrote to the respondent on April 15, as follows (R. 589, Pl. Ex. 363, R. 1971):

Dear Mr. Commissioner:

Your letter of April 8 sent by registered mail to The New York Times Company has been referred for attention to us as general counsel.

You will appreciate, we feel sure, that the statements to which you object were not made by The New York Times but were contained in an advertisement proffered to The Times by responsible persons.

We have been investigating the matter and are somewhat puzzled as to how you think the statements in any way reflect on you. So far, our investigation would seem to indicate that the statements are substantially correct with the sole exception that we find no justification for the statement that the dining hall in the State College was "padlocked in an attempt to starve them into submission."

We shall continue to look into the subject matter because our client, The New York Times, is always desirous of correcting any statements which appear in its paper and which turn out to be erroneous.

In the meanwhile you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you.

Very truly yours,

Lord, Day & Lord

The respondent filed suit on April 19, without answering this letter.

Subsequently, on May 9, 1960, Governor John Patterson of Alabama, sent a similar demand for a retraction to The Times, asserting that the publication charged him "with grave misconduct and of [sic] improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of Alabama" and demanding publication of a retraction of the material so far as it related to him and to his conduct as Governor and Ex-Officio Chairman.

On May 16, the President and Publisher of The Times wrote Governor Patterson as follows (R. 773, Def. Ex. 9, R. 1998):

Dear Governor Patterson:

In response to your letter of May 9th, we are enclosing herewith a page of today's New York Times which contains the retraction and apology requested.

As stated in the retraction, to the extent that anyone could fairly conclude from the advertisement that any charge was made against you, The New York Times apologizes.

Faithfully yours,

ORVIL DRYFOOS

The publication in The Times (Pl. Ex. 351, R.1958), referred to in the letter, appeared under the headline "Times Retracts Statement in Ad" and the subhead "Acts on Protest of Alabama Governor Over Assertions in Segregation Matter." After preliminary paragraphs reporting the Governor's protest and quoting his letter in full, including the specific language of which he complained, the account set forth a "statement by The New York Times" as follows:

The advertisement containing the statements to which Governor Patterson objects was received by The Times in the regular course of business from and paid for by a recognized advertising agency in behalf of a group which included among its subscribers well-known citizens.

The publication of an advertisement does not constitute a factual news report by The Times nor does it reflect the judgment or the opinion of the editors of The Times. Since publication of the advertisement, The Times made an investigation and consistent with its policy of retracting and correcting any errors or misstatements which may appear in its columns, herewith retracts the two paragraphs complained of by the Governor.

The New York Times never intended to suggest by the publication of the advertisement that the Honorable John Patterson, either in his capacity as Governor or as ex-officio chairman of the Board of Education of the State of Alabama, or otherwise, was guilty of "grave misconduct or improper actions and omission." To the extent that anyone can fairly conclude from the statements in the advertisement that any such charge was made, The New York Times hereby apologizes to the Honorable John Patterson therefor.

The publication closed with a recapitulation of the names of the signers and endorsers of the advertisement and of the officers of the Committee to Defend Martin Luther King.

In response to a demand in respondent's pre-trial interrogatories to "explain why said retraction was made but no retraction was made on the demand of the plaintiff," Mr. Bancroft, Secretary of The Times, said that The Times published the retraction in response to the Governor's demand "although in its judgment no statement in said advertisement referred to John Patterson either personally or as Governor of the State of Alabama, nor referred to this plaintiff [Sullivan] or any of the plaintiffs in the companion suits. The defendant, however, felt that on account of the fact that John Patterson held the high office of Governor of the State of Alabama and that he apparently believed that he had been libeled by said advertisement in his capacity as Governor of the State of Alabama, the defendant should apologize" (R. 595–596, Pl. Ex. 348, R. 1942). In further explanation at the trial, Bancroft testified: "We did that because we didn't want anything that was published by The Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education presumably of which the Governor is ex-officio chairman … " (R. 776–777). On the other hand, he did not think that "any of the language in there referred to Mr. Sullivan" (R. 777).

This evidence, together with Mr. Bancroft's further testimony that apart from the statement in the advertisement that the dining hall was padlocked, he thought that "the tenor of the content, the material of those two paragraphs in the ad … are … substantially correct" (R. 781,785), was deemed by the Supreme Court of Alabama to lend support to the verdict of the jury and the size of its award (R. 1178).

6. The rulings on the merits The Circuit Court held that the facts alleged and proved sufficed to establish liability of the defendants, if the jury was satisfied that the statements complained of by respondent were published of and concerning him. Overruling a demurrer to the complaint (R. 108) and declining to direct a verdict for petitioner (R. 728–729, 818), the court charged the jury (R. 819–826) that the statements relied on by the plaintiff were "libelous per se"; that "the law implies legal injury from the bare fact of the publication itself"; that "falsity and malice are presumed"; that "[g]eneral damages need not be alleged or proved but are presumed" (R. 824); and that "punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown" (R. 825). While the court instructed, as requested, that "mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages" (R. 836), it refused to instruct that the jury must be "convinced" of malice, in the sense of "actual intent" to harm or "gross negligence and recklessness" to make such an award (R. 844). It also declined to require that a verdict for respondent differentiate between compensatory and punitive damages (R. 846).

Petitioner challenged these rulings as an abridgment of the freedom of the press, in violation of the First and the Fourteenth Amendments, and also contended that the verdict was confiscatory in amount and an infringement of the constitutional protection (R. 73–74, 898, 929–930, 935, 936–937, 945–946,948). A motion for new trial, assigning these grounds among others (R. 896–949), was denied by the Circuit Court (R. 969).

The Supreme Court of Alabama sustained these rulings on appeal (R. 1139, 1180). It held that where "the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tends to bring the individual into public contempt," they are "libelous per se"; that "the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff" (R.1155); and that it was actionable without "proof of pecuniary injury …, such injury being implied" (R. 1160–1161). It found no error in the trial court's ruling that the complaint alleged and the evidence established libelous statements which the jury could find were "of and pertaining to" respondent (R. 1158, 1160), reasoning as follows (R. 1157):

"We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body."

The Court also approved the trial court's charge as "a fair, accurate and clear expression of the governing legal principles" (R. 1167) and sustained its determination that the damages awarded by the verdict were not excessive (R.1179). On the latter point, the Court endorsed a statement in an earlier opinion that there "is no legal measure of damages in cases of this character" (R. 1177) and held to be decisive that "The Times in its own files had articles already published which would have demonstrated the falsity of the allegations in the advertisement"; that "The Times retracted the advertisement as to Governor Patterson, but ignored this plaintiff's demand for retraction" though the "matter contained in the advertisement was equally false as to both parties"; that in "the trial below none of the defendants questioned the falsity of the allegations in the advertisement" and, simultaneously, that "during his testimony it was the contention of the Secretary of The Times that the advertisement was 'substantially correct'" (R.1178).

Petitioner's submissions under the First and the Fourteenth Amendments (assignments of error 81, 289–291, 294, 296, 298, 306–308, 310;R. 1055, 1091–1094, 1096–1097, 1098) were summarily rejected with the statements that the "First Amendment of the U.S. Constitution does not protect libelous publications" and the "Fourteenth Amendment is directed against State action and not private action" (R. 1160).

7. The jurisdiction of the Alabama courts Respondent sought to effect service in this action (R. 11) by delivery of process to Don McKee, the New York Times stringer in Montgomery, claimed to be an agent under § 188, Alabama Code of 1940, title 7 (Appendix A, infra, pp. 91–92), and by delivery to the Secretary of State under § 199(1), the "longarm" statute of the State (Appendix A, infra, pp. 92–95). Petitioner, appearing specially and only for this purpose, moved to quash the service on the ground, among others, that the subjection of The Times to Alabama jurisdiction in this action would transcend the territorial limitations of due process in violation of the Fourteenth Amendment, impose a burden on interstate commerce forbidden by the Commerce Clause and abridge the freedom of the press (R. 39, 43–44, 47; see also, e.g., R. 129).

The evidence adduced upon the litigation of the motion (R. 130–566) established the following facts:

Petitioner is a New York corporation which has not qualified to do business in Alabama or designated anyone to accept service of process there (R. 134–135). It has no office, property or employees resident in Alabama (R. 146, 403–404, 438–439). Its staff correspondents do, however, visit the State as the occasion may arise for purposes of newsgathering. From the beginning of 1956 through April, 1960, nine correspondents made such visits, spending, the courts below found, 153 days in Alabama, or an average of some thirty-six man-days per year. In the first five months of 1960, there were three such visits by Claude Sitton, the staff correspondent stationed in Atlanta (R. 311–314, 320, Pl. Ex. 91–93, R. 1356–1358) and one by Harrison Salisbury (R. 145, 239, Pl. Ex. 117, R. 1382). The Times also had an arrangement with newspapermen, employed by Alabama journals, to function as "stringers," paying them for stories they sent in that were requested or accepted at the rate of a cent a word and also using them occasionally to furnish information to the desk (e.g., R. 175, 176) or to a correspondent (R. 136–137, 140, 153, 154). The effort was to have three such stringers in the State, including one in Montgomery (R. 149, 309) but only two received payments from The Times in 1960, Chadwick of South Magazine, who was paid $155 to July 26, and McKee of The Montgomery Advertiser, who was paid $90, covering both dispatches and assistance given Salisbury (R. 140, 143, 155, 159, 308–309, 441). McKee was also asked to investigate the facts relating to respondent's claim of libel, which he did (R. 202, 207). The total payments made by petitioner to stringers throughout the country during the first five months of 1960 was about $245,000 (R. 442). Stringers are not treated as employees for purposes of taxes or employee benefits (R. 439–440, 141–143).

The advertisement complained of in this action was prepared, submitted and accepted in New York, where the newspaper is published (R. 390–393, 438). The total daily circulation of The Times in March, 1960, was 650,000, of which the total sent to Alabama was 394–351 to mail subscribers and 43 to dealers. The Sunday circulation was 1,300,000, of which the Alabama shipments totaled 2,440 (Def. Ex. No. 4, R. 1981, R. 401–402). These papers were either mailed to subscribers who had paid for a subscription in advance (R. 427) or they were shipped prepaid by rail or air to Alabama newsdealers, whose orders were unsolicited (R. 404–408, 444) and with whom there was no contract (R. 409). The Times would credit dealers for papers which were unsold or arrived late, damaged or incomplete, the usual custom being for the dealer to get the irregularities certified by the railroad baggage man upon a card provided by The Times (R. 408–409, 410–412, Pl. Ex. 276–309, R. 1751–1827, R. 414, 420–426), though this formality had not been observed in Alabama (R. 432–436). Gross revenue from this Alabama circulation was approximately $20,000 in the first five months of 1960 of a total gross from circulation of about $8,500,000 (R. 445). The Times made absolutely no attempt to solicit or promote its sale or distribution in Alabama (R. 407–408, 428, 450, 485).

The Times accepted advertising from Alabama sources, principally advertising agencies which sent their copy to New York, where any contract for its publication was made (R. 344–349, 543); the agency would then be billed for cost, less the amount of its 15% commission (R. 353–354). The New York Times Sales, Inc., a wholly-owned subsidiary corporation, solicited advertisements in Alabama, though it had no office or resident employees in the State (R. 359–361, 539, 482). Two employees of Sales, Inc. and two employees of The Times spent a total of 26 days in Alabama for this purpose in 1959; and one of the Sales, Inc. men spent one day there before the end of May in 1960 (R. 336–338, Def. Ex. 1, R. 1978, 546, 548–551). Alabama advertising linage, both volunteered and solicited, amounted to 5471 in 1959 of a total of 60,000,000 published; it amounted to 13,254 through May of 1960 of a total of 20,000,000 lines (R. 342–344, 341, Def. Ex. 2, R. 1979). An Alabama supplement published in 1958 (R. 379, Pl. Ex. 273, R. 1689–1742) produced payments by Alabama advertisers of $26,801.64 (R. 380). For the first five months of 1960 gross revenue from advertising placed by Alabama agencies or advertisers was $17,000 to $18,000 of a total advertising revenue of $37,500,000 (R. 443). The gross from Alabama advertising and circulation during this period was $37,300 of a national total of $46,000,000 (R. 446).

On these facts, the courts below held that petitioner was subject to the jurisdiction of the Circuit Court in this action, sustaining both the service on McKee as a claimed agent and the substituted service on the Secretary of State and rejecting the constitutional objections urged (R. 49, 51–57, 1139, 1140–1151). Both courts deemed the newsgathering activities of correspondents and stringers, the solicitation and publication of advertising from Alabama sources and the distribution of the paper in the State to constitute sufficient Alabama "contacts" to support the exercise of jurisdiction (R. 56–57, 1142–1147). They also held that though petitioner had appeared specially upon the motion for the sole purpose of presenting these objections, as permitted by the Alabama practice, the fact that the prayer for relief asked for dismissal for "lack of jurisdiction of the subject matter" of the action, as well as want of jurisdiction of the person of defendant, constituted a general appearance and submission to the jurisdiction of the Court (R. 49–51, 1151–1153).

SUMMARY OF ARGUMENT

I.

Under the doctrine of "libel per se" applied below, a public official is entitled to recover "presumed" and punitive damages for a publication found to be critical of the official conduct of a governmental agency under his general supervision if a jury thinks the publication "tends" to "injure" him "in his reputation" or to "bring" him "into public contempt" as an official. The publisher has no defense unless he can persuade the jury that the publication is entirely true in all its factual, material particulars. The doctrine not only dispenses with proof of injury by the complaining official, but presumes malice and falsity as well. Such a rule of liability works an abridgment of the freedom of the press.

The court below entirely misconceived the constitutional issues, in thinking them disposed of by the propositions that "the Constitution does not protect libelous publications" and that the "Fourteenth Amendment is directed against State action and not private action" (R. 1160). The requirements of the First Amendment are not satisfied by the "mere labels" of State law. N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963); see also Beauharnais v. Illinois, 343 U.S. 250, 263–264 (1952). The rule of law and the judgment challenged by petitioner are, of course, state action within the meaning of the Fourteenth Amendment.

If libel does not enjoy a talismanic insulation from the limitations of the First and Fourteenth Amendments, the principle of liability applied below infringes "these basic constitutional rights in their most pristine and classic form." Edwards v. South Carolina, 372 U.S. 229, 235 (1963). Whatever other ends are also served by freedom of the press, its safeguard "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957). It is clear that the political expression thus protected by the fundamental law is not delimited by any test of truth, to be administered by juries, courts, or by executive officials. N.A.A.C.P. v. Button, supra, at 445; Cantwell v. Connecticut, 310 U.S. 296, 310(1940). It also is implicit in this Court's decisions that speech or publication which is critical of governmental or official action may not be repressed upon the ground that it diminishes the reputation of those officers whose conduct it deplores or of the government of which they are a part.

The closest analogy in the decided cases is provided by those dealing with contempt, where it is settled that concern for the dignity and reputation of the bench does not support the punishment of criticism of the judge or his decision, whether the utterance is true or false. Bridges v. California, 314 U.S. 252, 270 (1941); Pennekamp v. Florida, 328 U.S. 331, 342 (1946); Wood v. Georgia, 370 U.S. 375 (1962). Comparable criticism of an elected, political official cannot consistently be punished as a libel on the ground that it diminishes his reputation. If political criticism could be punished on the ground that it endangers the esteem with which its object is regarded, none safely could be uttered that was anything but praise.

That neither falsity nor tendency to harm official reputation, nor both in combination, justifies repression of the criticism of official conduct was the central lesson of the great assault on the short-lived Sedition Act of 1798, which the verdict of history has long deemed inconsistent with the First Amendment. The rule of liability applied below is even more repressive in its function and effect than that prescribed by the Sedition Act: it lacks the safeguards of criminal sanctions; it does not require proof that the defendant's purpose was to bring the official into contempt or disrepute; it permits, as this case illustrates, a multiplication of suits based on a single statement; it allows legally limitless awards of punitive damages. Moreover, reviving by judicial decision the worst aspect of the Sedition Act, the doctrine of this case forbids criticism of the government as such on the theory that top officers, though they are not named in statements attacking the official conduct of their agencies, are presumed to be hurt because such critiques are "attached to" them (R. 1157).

Assuming, without conceding, that the protection of official reputations is a valid interest of the State and that the Constitution allows room for the "accommodation" of that interest and the freedom of political expression, the rule applied below is still invalid. It reflects no compromise of the competing interests; that favored by the First Amendment has been totally rejected, the opposing interest totally preferred. If there is scope for the protection of official reputation against criticism of official conduct, measures of liability far less destructive of the freedom of expression are available and adequate to serve that end. It might be required, for example, that the official prove special damage, actual malice, or both. The Alabama rule embraces neither mitigation. Neither would allow a judgment for respondent on the evidence that he presents.

The foregoing arguments are fortified by the privilege the law of libel grants to an official if he denigrates a private individual. It would invert the scale of values vital to a free society if citizens discharging the "political duty" of "public discussion" (Brandeis, J., concurring in Whitney v. California, 274 U.S. 357, 375 [1927]) did not enjoy a fair equivalent of the immunity granted to officials as a necessary incident of the performance of official duties.

Finally, respondent's argument that the publication is a "commercial advertisment," beyond the safeguard of the First Amendment, is entirely frivolous. The statement was a recital of grievances and protest against claimed abuse dealing squarely with the major issue of our time.

II.

Whether or not the rule of liability is valid on its face, its application in this case abridges freedom of the press. For nothing in the evidence supports a finding of the type of injury or threat to the respondent's reputation that conceivably might justify repression of the publication or give ground for the enormous judgment rendered on the verdict.

Complaining broadly against suppression of Negro rights throughout the South, the publication did not name respondent or the Commission of which he is a member and plainly was not meant as an attack on him or any other individual. Its protests and its targets were impersonal: "the police," "the state authorities," "the Southern violators." The finding that these collective generalities embodied an allusion to respondent's personal identity rests solely on the reference to "the police" and on his jurisdiction over that department. But the police consisted of too large a group for such a personal allusion to be found. The term "police" does not, in fact, mean all policemen. No more so does it mean the Mayor or Commissioner in charge. This fatal weakness in the claim that the respondent was referred to by the publication was not cured by his own testimony or that of his six witnesses; they did no more than express the opinion that "police" meant the respondent, because he is Commissioner in charge. These "mere general asseverations" (Norris v. Alabama, 294 U.S. 587, 595 [1935]) were not evidence of what the publication said or what it reasonably could be held to mean.

Even if the statements that refer to "the police" could validly be taken to refer to the respondent, there was nothing in those statements that suffices to support the judgment. Where the publication said that "truckloads" of armed police "ringed the Alabama State College Campus," the fact was that only "large numbers" of police "were deployed near the campus" upon three occasions, without ringing it on any. And where the statement said "They have arrested him seven times," the fact was that Dr. King had been arrested only four times. That these exaggerations or inaccuracies cannot rationally be regarded as tending to injure the respondent's reputation is entirely clear. The advertisement was also wrong in saying that when "the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission." Only a few students refused to re-register and the dining hall was never padlocked. But none of these erroneous assertions had a thing to do with the police and even less with the respondent. It was equally absurd for respondent to claim injury because the publication correctly reported that some unidentified "they" had twice bombed the home of Dr. King, and to insist on proving his innocence of that crime as the trial court permitted him to do.

That the respondent sustained no injury in fact from the publication, the record makes entirely clear.

Even if there were in this record a basis for considering the publication an offense to the respondent's reputation, there was no rational relationship between the gravity of the offense and the size of the penalty imposed. A "police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive." Brandeis, J., concurring in Whitney v. California, 274 U.S. 357, 377 (1927). The proposition must apply with special force when the "harsh" remedy has been explicitly designed as a deterrent of expression. Upon this ground alone, this monstrous judgment is repugnant to the Constitution.

III.

The assumption of jurisdiction in this action by the Circuit Court, based on service of process on McKee and substituted service on the Secretary of State, transcended the territorial limits of due process, imposed a forbidden burden on interstate commerce and abridged the freedom of the press.

There was no basis for the holding by the courts below that petitioner forfeited these constitutional objections by making an involuntary general appearance in the cause. The finding of a general appearance was based solely on the fact that when petitioner appeared specially and moved to quash the attempted service for want of jurisdiction of its person, as permitted by the Alabama practice, the prayer for relief concluded with a further request for dismissal for "lack of jurisdiction of the subject matter of said action." That prayer did not manifest an intention to "consent" or to make "a voluntary submission to the jurisdiction of the court," which the Alabama cases have required to convert a special into a general appearance. Ex parte Cullinan, 224 Ala. 263, 266 (1931). The papers made entirely clear that the sole ruling sought by the petitioner was that it was not amenable to Alabama jurisdiction, as a New York corporation having no sufficient contact with the State to permit the assertion of jurisdiction in person-am in an action based upon a publication in New York.

Moreover, even if petitioner could validly be taken to have made an involuntary general appearance, that appearance would not bar the claim that in assuming jurisdiction of this action the state court imposed a forbidden burden on interstate commerce or that it abridged the freedom of the press. Davis v. Farmers Co-operative Co., 262 U.S. 312 (1923); Michigan Central R. R. Co. v. Mix, 278 U.S. 492, 496 (1929); Denver & R.G. W. R. Co. v. Terte, 284 U.S. 284, 287 (1932).

The decisions of this Court do not support the holding that the sporadic newsgathering activities of correspondents and stringers of The Times in Alabama, the occasional solicitation and publication of advertising from Alabama sources and the minuscule shipment of the newspaper to subscribers and newsdealers in the State constitute sufficient Alabama contacts to satisfy the requirements of due process.

The petitioner's peripheral relationship to Alabama does not involve "continuous corporate operations" which are "so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities." International Shoe Co. v. Washington, 326 U.S. 310, 318 (1945); Perkins v. Benguet Mining Co., 342 U.S. 437(1952). Hence, if the jurisdiction is sustained, it must be on the ground that the cause of action alleged is so "connected with" petitioner's "activities within the state" as to "make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there." International Shoe Co. v. Washington, supra, at 319, 317. There is no such connection. Here, as in Hanson v. Denckla, 357 U.S. 235, 252 (1958), the "suit cannot be said to be one to enforce an obligation that arose from a privilege the defendant exercised in" the State. The liability alleged is not based on any activity of correspondents or stringers of The Times in covering the news in Alabama; and such activity does not rest on a privilege the State confers, given the rights safeguarded by the Constitution. Nor is this claim connected with the occasional solicitation of advertisements in Alabama. Finally, the negligible circulation of The Times in Alabama does not involve an act of the petitioner within the State. Copies were mailed in New York to Alabama subscribers or shipped in New York to newsdealers who were purchasers, not agents of The Times.

Even if the shipment of the paper may be deemed an act of the petitioner in Alabama, it does not sustain the jurisdiction here affirmed. The standard of International Shoe is not "simply mechanical or quantitative"; its application "must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure" (326 U.S. at 319). Measured by this standard, a principle which would require, in effect, that almost every newspaper defend a libel suit in almost any jurisdiction of the country, however trivial its circulation there may be, would not further the "fair and orderly administration of the laws". To the extent that this submission prefers the interest of the publisher to that of the plaintiff, the preference is one supported by the First Amendment. It also is supported by the fact that the plaintiff's grievance rests but fancifully on the insubstantial distribution of the publication in the forum, as distinguished from its major circulation out of state.

The decision in McGee v. International Life Ins. Co., 355 U.S. 220 (1957) does not govern the disposition here. The contract executed in McGee constituted a continuing legal relationship between the insurer and the insured within the State, a relationship which the States, with the concurrence of Congress, have long deemed to require special regulation. Hanson v. Denckla, supra, at 252; Travelers Health Assn. v. Virginia, 339 U.S. 643 (1950). Scripto v. Carson, 362 U.S. 207 (1960), relied on by respondent, is totally irrelevant to the problem of judicial jurisdiction.

The need for reciprocal restraints upon the power of the States to exert jurisdiction over men and institutions not within their borders is emphasized in our society by the full faith and credit clause of the Constitution. An Alabama judgment in this case would have no practical importance were it not enforceable as such in States where the petitioner's resources are located. Thus jurisdictional delineations must be based on grounds that command general assent throughout the Union. No standard worthy of such general assent sustains the jurisdiction here.

If negligible state circulation of a paper published in another state suffices to establish jurisdiction of a suit for libel threatening the type of judgment rendered here, such distribution interstate cannot continue. So, too, if the interstate movement of correspondents provides a factor tending to sustain such jurisdiction, as the court below declared, a strong barrier to such movement has been erected. In the silence of Congress, such movement and distribution are protected by the commerce clause against burdensome state action, unsupported by an overriding local interest. Such a burden has been imposed here.

Newsgathering and circulation are both aspects of the freedom of the press, safeguarded by the Constitution. Neither can continue unimpaired if they subject the publisher to foreign jurisdiction on the grounds and of the scope asserted here. Accordingly, the jurisdictional determination is also repugnant to the First Amendment.

ARGUMENT

The decision of the Supreme Court of Alabama, sustaining the judgment of the Circuit Court, denies rights that are basic to the constitutional conception of a free society and contravenes a postulate of our federalism.

We submit, first (Points I and II), that the decision gives a scope and application to the law of libel so restrictive of the right to protest and to criticize official conduct that it abridges the protected freedom of the press.

We argue, secondly (Point III), that in requiring petitioner to answer in this action in the courts of Alabama, the decision violates the territorial restrictions that the Constitution places on State process, casts a forbidden burden on interstate commerce and also abridges freedom of the press.

I. The decision rests upon a rule of liability for criticism of official conduct that abridges freedom of the press.

Under the law of libel as declared below, a public official is entitled to recover "presumed" and punitive damages for a publication found to be critical of the official conduct of a governmental agency under his general supervision if a jury thinks the publication "tends" to "injure" him "in his reputation" or to "bring" him "into public contempt" as an official. The place of the official in the governmental hierarchy is, moreover, evidence sufficient to establish that his reputation has been jeopardized by statements that reflect upon the agency of which he is in charge. The publisher has no defense unless, as respondent noted in his Brief in Opposition (p. 18, n.10), he can persuade the jury that the publication is entirely true in all its factual, material particulars. Ferdon v. Dickens, 161 Ala. 181, 185, 200–201 (1909); Kirkpatrick v. Journal Publishing Company, 210 Ala. 10, 11 (1923); Alabama Ride Company v. Vance, 235 Ala. 263, 265 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 495 (1960). Unless he can discharge this burden as to stated facts, he has no privilege of comment. Parsons v. Age-Herald Pub. Co., 181 Ala. 439, 450 (1913). Good motives or belief in truth, however reasonable, are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, at 495. A claim of truth which is regarded as unfounded affords evidence of malice, fortifying the presumption that applies in any case (R. 1178).

We submit that such a rule of liability works an abridgment of the freedom of the press, as that freedom has been defined by the decisions of this Court.

First: The State Court's misconception of the constitutional issues The reasons assigned by the Court below give no support to its rejection of petitioner's constitutional objections.

The accepted proposition that "[t]he Fourteenth Amendment is directed against State action and not private action" (R. 1160) obviously has no application to the case. The petitioner has challenged a State rule of law applied by a State court to render judgment carrying the full coercive power of the State, claiming full faith and credit through the Union solely on that ground. The rule and judgment are, of course, State action in the classic sense of the subject of the Amendment's limitations. See N.A.A.C.P. v. Alabama, 357 U.S. 449, 463 (1958); Barrows v. Jackson, 346 U.S. 249, 254 (1953); Shelley v. Kraemer, 334 U.S. 1, 14 (1948).

There is no greater merit in the other reason stated in the Court's opinion, that "the Constitution does not protect libelous publications." Statements to that effect have, to be sure, been made in passing in opinions of this Court. See Konigsberg v. State Bar of California, 366 U.S. 36, 49 (1961); Times Film Corporation v. City of Chicago, 365 U.S. 43, 48 (1961); Roth v. United States, 354 U.S. 476, 486 (1957); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); Pennekamp v. Florida, 328 U.S. 331, 348–349 (1946); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Near v. Minnesota, 283 U.S. 697, 715 (1931). But here, no less than elsewhere, a "great principle of constitutional law is not susceptible of comprehensive statement in an adjective." Carter v. Carter Coal Co., 298 U.S. 238, 327 (1936) (dissenting opinion of Cardozo, J.).

The statements cited meant no more than that the freedom of speech and of the press is not a universal absolute and leaves the States some room for the control of defamation. None of the cases sustained the repression as a libel of expression critical of governmental action or was concerned with the extent to which the law of libel may be used for the protection of official reputation. The dictum in Pennekamp that "when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants" left at large what may amount to defamation and what remedy a public servant has. Beauharnais alone dealt with the standards used in judging any kind of libel, sustaining with four dissenting votes a state conviction for a publication held to be both defamatory of a racial group and "liable to cause violence and disorder." Mr. Justice Frankfurter's opinion took pains to reserve this Court's "authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel"—adding that "public men are, as it were, public property," that "discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." 343 U.S. at 263–264. Those reservations, rather than the judgment, are apposite here.

Throughout the years this Court has measured by the standards of the First Amendment every formula for the repression of expression challenged at its bar. In that process judgment has been guided by the meaning and the purpose of the Constitution, interpreted as a "continuing instrument of government" (United States v. Classic, 313 U.S. 299, 316 [1941]), not by the vagaries or "mere labels" of state law. N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963). See also Mr. Chief Justice Warren in Trop v. Dulles, 356 U.S. 86, 94 (1958). Hence libel, like sedition, insurrection, contempt, advocacy of unlawful acts, breach of the peace, disorderly conduct, obscenity or barratry, to name but prime examples, must be defined and judged in terms that satisfy the First Amendment. The law of libel has no more immunity than other law from the supremacy of its command.

Second: Seditious libel and the Constitution If libel does not enjoy a talismanic insulation from the limitations of the First and Fourteenth Amendments, the principle of liability applied below, resting as it does on a "common law concept of the most general and undefined nature" (Cantwell v. Connecticut, 310 U.S. 296, 308 [1940]), infringes "these basic constitutional rights in their most pristine and classic form." Edwards v. South Carolina, 372 U.S. 229, 235 (1963).

Whatever other ends are also served by freedom of the press, its safeguard, as this Court has said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484 (1957). Its object comprehends the protection of that "right of freely examining public characters and measures, and of free communication among the people thereon," which, in the words of the Virginia Resolution, "has ever been justly deemed the only effectual guardian of every other right." 4 Elliot's Debates (1876), p. 554. The "opportunity for free political discussion" and "debate" secured by the First Amendment (Stromberg v. California, 283 U.S. 359, 369 [1931]; DeJonge v. Oregon, 299 U.S. 353, 365 [1937]; Terminiello v. Chicago, 337 U.S. 1, 4 [1949]), extends to "vigorous advocacy" no less than "abstract" disquisition. N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963). The "prized American privilege to speak one's mind, although not always with perfect good taste," applies at least to such speech "on all public institutions." Bridges v. California, 314 U.S. 252, 270(1941). "To many this is, and always will be, folly; but we have staked upon it our all." L. Hand, J., in United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). That national commitment has been affirmed repeatedly by the decisions of this Court, which have recognized that the Amendment "must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow" (Bridges v. California, supra, at 263); and that its freedoms "need breathing space to survive." N.A.A.C.P. v. Button, supra, at 433.

It is clear that the political expression thus protected by the fundamental law is not delimited by any test of truth, to be administered by juries, courts, or by executive officials, not to speak of a test which puts the burden of establishing the truth upon the writer. Within this sphere of speech or publication, the constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." N.A.A.C.P. v. Button, supra, at 445. See also Speiser v. Randall, 357 U.S. 513, 526 (1958). The Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection." United States v. Associated Press, supra, at 372. As Mr. Justice Roberts said in Cantwell v. Connecticut, 310 U.S. 296, 310 (1940):

"In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy."

These affirmations are the premises today of any exploration of the scope of First Amendment freedom undertaken by this Court. It is implicit in those premises that speech or publication which is critical of governmental or official action may not be repressed upon the ground that it diminishes the reputation of the officers whose conduct it deplores or of the government of which they are a part.

The closest analogy in the decided cases is provided by those dealing with contempt.² It is settled law that concern for the dignity and reputation of the bench does not support the punishment of criticism of the judge or his decision (Bridges v. California, supra, at 270), though the utterance contains "half-truths" and "misinformation" (Pennekamp v. Florida, supra, 328 U.S. at 342, 343, 345). Any such repression must be justified, if it is justified at all, by danger of obstruction of the course of justice; and such danger must be clear and present. See also Craig v. Harney, 331 U.S. 367, 373, 376, 389 (1947); Wood v. Georgia, 370 U.S. 375, 388, 389, 393(1962). We do not see how comparable criticism of an elected, political official may consistently be punished as a libel on the ground that it diminishes his reputation.³ The supposition that judges are "men of fortitude, able to thrive in a hardy climate" (Craig v. Harney, supra, at 376) must apply to commissioners as well.

These decisions are compelling not alone for their authority but also for their recognition of the basic principle involved. If political criticism could be punished on the ground that it endangers the esteem with which its object is regarded, none safely could be uttered that was anything but praise.

The point was made in classic terms in Madison's Report on the Virginia Resolutions (4 Elliot's Debates, p. 575):

"… it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures; because those who engage in such discussions, must expect and intend to excite these unfavorable sentiments, so far as they may be thought to be deserved. To prohibit the intent to excite those unfavorable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it, by free animadversions on their characters and conduct…. "

If criticism of official conduct may not be repressed upon the ground that it is false or that it tends to harm official reputation, the inadequacy of these separate grounds is not surmounted by their combination. This was the basic lesson of the great assault on the short-lived Sedition Act of 1798, which first crystallized a national awareness of the central meaning of the First Amendment. See, e.g., Levy, Legacy of Suppression (1960), p. 249 et. seq.; Smith, Freedom's Fetters (1956).

That Act declared it a crime "if any person shall write, print, utter or publish … any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States…. " It specifically provided that the defendant might "give in evidence in his defence, the truth of the matter contained in the publication charged as a libel", a mitigation of the common law not achieved in England until Lord Campbell's Act in 1843. It also reserved the right of the jury to "determine the law and the fact, under the direction of the court, as in other cases," accepting the reform effected by Fox's Libel Act of 1792. Act of July 14, 1798, Secs. 2, 3; 1 Stat. 596. These qualifications were not deemed sufficient to defend the measure against a constitutional attack that won widespread support throughout the nation.

In the House debate upon the bill, John Nicholas of Virginia warned that a law ostensibly directed against falsehood "must be a very powerful restriction of the press, with respect to the publication of important truths." Men "would be deterred from printing anything which should be in the least offensive to a power which might so greatly harass them. They would not only refrain from publishing anything of the least questionable nature, but they would be afraid of publishing the truth, as, though true, it might not always be in their power to establish the truth to the satisfaction of a court of justice." 8 Annals of Congress 2144. Albert Gallatin delineated the same peril, arguing that "the proper weapon to combat error was truth, and that to resort to coercion and punishments in order to suppress writings attacking … measures …, was to confess that these could not be defended by any other means." Id. at 2164. Madison's Report reiterates these points, observing that some "degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 Elliot's Debates, p. 571. Summing up the position in words that have echoed through the years, he asked (ibid.):

"Had Sedition Acts, forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing, at this day, under the infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies, groaning under a foreign yoke?"

Though the Sedition Act was never passed on by this Court, the verdict of history surely sustains the view that it was inconsistent with the First Amendment. Fines levied in its prosecutions were repaid by Act of Congress on this ground. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802 (fine imposed on Congressman Matthew Lyon refunded to his heirs).⁴ Its invalidity as "abridging the freedom of the press" was assumed by Calhoun, reporting to the Senate on February 4, 1836, as a matter "which no one now doubts." Report with Senate bill No. 122, 24th Cong., 1st Sess. p. 3. The same assumption has been made upon this Court. Holmes, J., dissenting in Abrams v. United States, 250 U.S. 616, 630(1919); Jackson, J., dissenting in Beauharnais v. Illinois, 343 U.S. 250, 288–289 (1952). See also Cooley, Constitutional Limitations (8th ed. 1927), p. 900; Chafee, Free Speech in the United States (1941), pp. 27–29. These assumptions reflect a broad consensus that, we have no doubt, is part of present law.

Respondent points to Jefferson's distinction between the right of Congress "to control the freedom of the press," which Jefferson of course denied, and that remaining in the States, which he admitted. Brief in Opposition, p. 19; see Dennis v. United States, 341 U.S. 494, 522, n. 4(1961) (concurring opinion). That distinction lost its point with the adoption of the Fourteenth Amendment and the incorporation of the First Amendment freedoms in the "liberty" protected against state action. See, e.g., Bridges v. California, 314 U.S. 252, 268 (1941); Edwards v. South Carolina, 372 U.S. 229, 235 (1963). The view that there may be a difference in the stringency of the commands embodied in the two Amendments (Jackson, J., in Beauharnais v. Illinois, supra, 343 U.S. at 288; Harlan, J., concurring in Alberts v. California, 354 U.S. 476, 501, 503 [1957]) has not prevailed in the decisions of this Court. Even if it had, we think it plain that there could be no reasonable difference in the strength of their protection of expression against "frontal attack or suppression" (Harlan, J., dissenting in N.A.A.C.P. v. Button, supra, 371 U.S. at 455) of the kind with which we are concerned.

The rule of liability applied below is even more repressive in its function and effect than that prescribed by the Sedition Act. There is no requirement of an indictment and the case need not be proved beyond a reasonable doubt. It need not be shown, as the Sedition Act required, that the defendant's purpose was to bring the official "into contempt or disrepute"; a statement adjudged libelous per se is presumed to be "false and malicious," as the trial court instructed here (R. 824). There is no limitation to one punishment for one offensive statement, as would be required in a criminal proceeding. Respondent is only one of four commissioners, including one former incumbent, not to speak of the former Governor, who claim damages for the same statement. The damages the jury may award them if it deems the statement to apply to their official conduct are both general and punitive—the former for a "presumed" injury to reputation (R. 1160) and the latter "not alone to punish the wrongdoer, but as a deterrent to others similarly minded" (R. 1176). Such damages, moreover, are fettered by "no legal measure" of amount (R. 1177). It does not depreciate the stigma of a criminal conviction to assert that such a "civil" sanction is a more repressive measure than the type of sentence the Sedition Act permitted for the crime that it purported to define. Here, as in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), the "form of regulation … creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law."

It should be added that the principle of liability, as formulated by the Supreme Court of Alabama, goes even further than to punish statements critical of the official conduct of individual officials; it condemns the critique of government as such. This is accomplished by the declaration that it is sufficient to sustain the verdict that in "measuring the performance or deficiencies" of governmental bodies, "praise or criticism is usually attached to the official in complete control of the body" (R. 1157). On this thesis it becomes irrelevant that the official is not named or referred to in the publication. The most impersonal denunciation of an agency of government may be treated, in the discretion of the jury, as a defamation of the hierarchy of officials having such "complete control." A charge, for example, of "police brutality," instead of calling for investigation and report by supervising officers, gives them a cause of action against the complainant, putting him to proof that will persuade the jury of the truth of his assertion. Such a concept transforms the law of defamation from a method of protecting private reputation to a device for insulating government against attack.

When municipalities have claimed that they were libeled, they have met the answer that "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601 (1923). See also City of Albany v. Meyer, 99 Cal. App. 651 (1929). That answer applies as well to converting "libel on government" into libel of the officials of whom it must be composed. The First Amendment, no less than the Fifteenth, "nullifies sophisticated as well as simple-minded modes" of infringing the rights it guarantees. Lane v. Wilson, 307 U.S. 268, 275 (1939); Bates v. Little Rock, 361 U.S. 516, 523(1960); Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 297 (1961).

If this were not the case, the daily dialogue of politics would become utterly impossible. That dialogue includes, as Mr. Justice Jackson said, the effort "to discredit and embarrass the Government of the day by spreading exaggerations and untruths and by inciting prejudice or unreasoning discontent, not even hesitating to injure the Nation's prestige among the family of nations." Communications Assn. v. Douds, 339 U.S. 382, 423 (1950) (opinion concurring and dissenting in part). Sound would soon give place to silence if officials in "complete control" of governmental agencies, instead of answering their critics, could resort to friendly juries to amerce them for their words. Mr. Justice Brewer, in calling for the "freest criticism" of this Court, employed a metaphor that is apposite: "The moving waters are full of life and health; only in the still water is stagnation and death." Government by Injunction, 15 Nat. Corp. Rep. 848, 849 (1898). The First Amendment guarantees that motion shall obtain.

Third: The absence of accommodation of conflicting interests For the reasons thus far stated we contend that an expression which is critical of governmental conduct is within the "core of constitutional freedom" (Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 689[1959]) and may not be prohibited directly to protect the reputation of the government or its officials. A threat to such reputation is intrinsic to the function of such criticism. It is not, therefore, a "substantive evil" that a State has power to prevent by the suppression of the critical expression (cf., e.g., Schenck v. United States, 249 U.S. 47, 52 [1919]; Dennis v. United States, 341 U.S. 494, 506–507, 508–510 [1951]); nor does the protection of such reputation provide one of those "conflicting governmental interests" with which the protected freedom must "be reconciled" or to which it may validly be made to yield. Konigsberg v. State Bar, 366 U.S. 36, 50 n. 11 (1961); Gibson v. Florida Legislative Comm., 372 U.S. 539, 546 (1963).

If this submission overstates the scope of constitutional protection, it surely does so only in denying that there may be room for the accommodation of the two "conflicting interests" represented by official reputation and the freedom of political expression. But even under a standard that permits such accommodation, the rule by which this case was judged is inconsistent with the Constitution.

This conclusion follows because Alabama's law of libel per se, as applied to the criticism of officials as officials, does not reconcile the conflicting interests; it subordinates the First Amendment freedom wholly to protecting the official. It reflects no compromise of the competing values which we assume, arguendo, a State may validly attempt to balance. The interest favored by the First Amendment has been totally rejected, the opposing interest totally preferred. But here, as elsewhere in the area which is of concern to the First Amendment, the breadth of an abridgment "must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U.S. 479, 488(1960); Speiser v. Randall, 357 U.S. 513 (1958); cf. Dean Milk Co. v. City of Madison, 340 U.S. 349, 354 (1951). If there is room for the protection of official reputation against criticism of official conduct, measures of liability far less destructive of the freedom of expression are available and adequate to serve that end.

The Court of Appeals for the District of Columbia adopted such a standard as its version of the common law of libel in Sweeney v. Patterson, 128 F. 2d 457 (1942), dismissing a complaint based on a statement charging a Congressman with anti-Semitism in opposing an appointment. Judge Edgerton, joined by Judges Miller and Vinson, noted that "the cases are in conflict" but declared that "in our view it is not actionable to publish erroneous and injurious statements of fact and injurious comment or opinion regarding the political conduct and views of public officials, so long as no charge of crime, corruption, gross immorality or gross incompetence is made and no special damage results. Such a publication is not 'libelous per se.' "The position was placed upon the ground that "discussion will be discouraged, and the public interest in public knowledge of important facts will be poorly defended, if error subjects its author to a libel suit without even a showing of economic loss. Whatever is added to the field of libel is taken from the field of free debate." 128 F. 2d at 458. These are, we argue, grounds which are of constitutional dimension.

The same position was taken by Judge Clark, dissenting in Sweeney v. Schenectady Union Pub. Co., 122 F. 2d 288 (2d Cir. 1941), affirmed by an equal division of this Court. 316 U.S. 642 (1942). Deprecating the "dangerous … rationale of the decision that a comment leading an appreciable number of readers to hate or hold in contempt the public official commented on is libelous per se," he concluded that "the common-law requirement of proof of special damages gives" the commentator "the protection he needs, while at the same time it does prevent him from causing really serious injury and loss by false and unfair statements." 122 F. 2d at 291, 292.

Other courts have shown solicitude for the freedom to criticize the conduct of officials by requiring that the aggrieved official prove the critic's malice, abrogating the presumptions and strict liability that otherwise obtain.⁵ This approach draws a line between expression uttered with the purpose of harming the official by an accusation known to be unfounded, and expression which is merely wrong in fact, with denigrating implications. It thus makes an essential element of liability an intent similar to that which elsewhere has been deemed necessary to sustain a curb on utterance (see, e.g., Dennis v. United States, supra, at 516; Smith v. California, 361 U.S. 147 [1959]; cf. Wieman v. Updegraff, 344 U.S. 183 [1952]) and relieves the defendant of an evidential and persuasive burden of a kind that has been held to be excessive (Speiser v. Randall, 357 U.S. 513 [1958]), assimilating the criteria of libel law in both respects to those demanded by the Constitution in related fields.

Whether either of these mitigated rules of liability for criticism of official conduct, or both in combination, would conform to First Amendment standards, need not be determined in this case. The Alabama rule embraces neither mitigation. Neither would allow a judgment for respondent on the evidence on which he rests his claim.

Fourth: The relevancy of the official's privilege The arguments we have made are fortified by recollection of the privilege the law of libel grants to an official if he denigrates a private individual. In Barr v. Matteo, 360 U.S. 564, 575(1959), this Court held the utterance of a federal official absolutely privileged if made "within the outer perimeter" of the official's duties. The States accord the same immunity to statements of their highest officers, though some differentiate their lowlier officials and qualify the privilege they enjoy, taking the position urged by the minority in the Matteo case. But all hold that all officials are protected unless actual malice can be proved.⁶

The ground of the official privilege is said to be that the threat of damage suits would otherwise "inhibit the fearless, vigorous, and effective administration of policies of government," that, in the words of Judge Learned Hand (Gregoire v. Biddle, 177 F. 2d 579, 581 [2d Cir. 1949]), "'to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.'" Barr v. Matteo, supra, at 571. Mr. Justice Black, concurring, also related the official privilege to the sustenance of "an informed public opinion," dependent on "the freedom people have to applaud or to criticize the way public employees do their jobs, from the least to the most important." 360 U.S. at 577.

It would invert the scale of values vital to a free society if citizens discharging the "political duty" of "public discussion" (Brandeis, J., concurring in Whitney v. California, 274 U.S. 357, 375 [1927]) did not enjoy a fair equivalent of the immunity granted to officials as a necessary incident of the performance of official duties. The threat of liability for actionable statement is assuredly no less of a deterrent to the private individual (cf. Farmers Union v. WDAY, 360 U.S. 525, 530 [1959]), who, unlike the official, must rely upon his own resources for defense. And, as Madison observed in words that are remembered, "the censorial power is in the people over the Government, and not in the Government over the people." 4 Annals of Congress 934. See also Report on the Virginia Resolutions (1799), 4 Elliot's Debates (1876), pp. 575–576. "For the same reason that members of the Legislature, judges of the courts, and other persons engaged in certain fields of the public service or in the administration of justice are absolutely immune from actions, civil or criminal, for libel for words published in the discharge of such public duties, the individual citizen must be given a like privilege when he is acting in his sovereign capacity." City of Chicago v. Tribune Co., 307 Ill. 595, 610 (1923). The citizen acts in his "sovereign capacity" when he assumes to censure the officialdom.

Fifth: The protection of editorial advertisements Though the point was not taken by the court below, respondent argues that the fact that the statement was a paid advertisement deprives it of protection "as speech and press." Brief in Opposition, p. 19. The argument is wholly without merit.

The decisions invoked by respondent have no bearing on this case. Breard v. Alexandria, 341 U.S. 622 (1951), dealt wit