Brief for Respondent

In the Supreme Court of the United States
October Term, 1965
No. 759

ERNESTO A. MIRANDA, PETITIONER,
V.
THE STATE OF ARIZONA, RESPONDENT

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF ARIZONA
BRIEF FOR RESPONDENT

Darrell F. Smith,
The Attorney General of Arizona

Gary K. Nelson,
Assistant Attorney General Rm. 159, State Capitol Bldg., Phoenix, Arizona 85007
Attorneys for Respondent

Gary K. Nelson,
Assistant Attorney General, Of Counsel

Index

Opinion Below, Jurisdiction, Constitutional Provisions Involved
Question Presented
Statement of the Case
Summary of Argument
Argument

1. Introduction
2. There are no inherent defects either in this defendant, the operation of law enforcement agencies, or in our system of criminal justice, which require a rule of the constitutional impact and proportions here sought by petitioner
   1. The defendant
   2. The police
   3. The nature of the contest
3. Miranda was not denied his right to counsel as guaranteed to him by the Sixth and Fourteenth Amendments to the Constitution of the United States
   1. The Arizona court's decision
   2. Escobedo v. Miranda

Conclusion
Appendix A
Appendix B

OPINION BELOW, JURISDICTION, CONSTITUTIONAL PROVISIONS INVOLVED

Pursuant to Rule 40, Subd. 3, Rules of the Supreme Court, 28 U.S.C. Rules, as amended, the respondent accepts petitioner's presentation of the above referenced portions of the brief.

QUESTION PRESENTED

While your respondent accepts the legal substance of the Question Presented as posed by the petitioner, serious issue is taken with the descriptive phrases, "poorly educated, mentally abnormal".¹ The propriety of this description of the petitioner, insofar as it may enhance the question presented for review, is no doubt one of the key issues to be decided by the Court and respondent reserves the right to present argument, infra, concerning the description's accuracy and impact.

STATEMENT OF THE CASE

Pursuant to Rule 40 of this Court, supra, respondent deems it necessary to set forth additional facts from the record of this case which are considered essential to the complete resolution of the issues presented for review.

A psychiatric report is part of the record (R.6) and has been referred to by petitioner in his Statement of the Case.² The totality of this report is essential for an adequate determination of critical factual and background matters, and the report is therefore fully incorporated by reference into this Statement of the Case and reprinted verbatim in Appendix A, infra.

The psychiatrist quoted the petitioner as making the following statements:³

¹ Brief of Petitioner, at 2.

² Id. at 3.

³ These are in addition to those quoted responses to proverbs cited in petitioner's brief, Id. n. 1.

"Don't worry. If I had wanted to rape you, I would have done it before. [R. 7]

"You don't have to scream. I am not going to hurt you. [R. 7]

"I didn't know how to ask her for forgiveness.[R. 7]

"I never could get adjusted to her. [R. 8]"

The psychiatrist sets forth in detail Miranda's experience with law enforcement agencies.⁴(R. 8)

Petitioner made a written statement concerning the events in question (State's Exhibit 1;R. 41, 69). Petitioner makes selected references to the statement.⁵ Respondent incorporates the whole of this written instrument into this brief; it is reprinted herein as Appendix B, infra.

A portion of the statement was typewritten and part of it was written in long-hand by the petitioner himself (R. 40, 41). The following portion of the statement was actually written by the petitioner in his own hand:

"E.A.M. Seen a girl walking up street stopped a little ahead of her got out of car walked towards her grabbed her by the arm and asked to get in the car. Got in car without force tied hands & ankles. Drove away for a few miles. Stopped asked to take clothes off. Did not, asked me to take her back home. I started to take clothes off her without any force and with cooperation. Asked her to lay down and she did could not get penis into vagina got about¹/₂(half) inch in. Told her to get clothes back on. Drove her home. I couldn't say I was sorry for what I had done. But asked her to say a prayer for me. E.A.M." (R. 69)

Finally, petitioner cites the Court to the opinion of the Arizona Supreme Court (R. 72-93), but once again is selective in the portions set forth in the Statement of the Case.⁶ Acting on the assumption that petitioner considered the selected portions of the opinion "all that is material to the consideration of the Questions Presented,"⁷ the respondent must expand this Statement of the Case to include the whole of the opinion below of the Arizona Supreme Court (98 Ariz. 18, 401 P. 2d 721) and hereby incorporates the whole of the opinion herein by reference.

The following specific excerpts, at a minimum, are vital for a determination of the factual and legal predicate of the Arizona Court in its resolution of the Federal Constitutional Question:

⁴ 1) Aged 14, Stolen Car, Probation.

2) Three weeks later, Fort Grant (Arizona Industrial School for Boys), 6 months.

3) Assault and Attempted Rape, 1 year sentence.

4) Aged 17, Peeping Tom charge, Los Angeles, Probation.

5) Arrested twice, Los Angeles, Suspicion of Armed Robbery.

6) Military service, Peeping Tom charge, confinement and Undesirable Discharge.

7) December 1959, Dwyer Act Violation, Federal Penitentiary.

⁵ Brief of Petitioner, n. 3.

⁶ Id. at 5-6.

⁷ Rule 40, Subd. 1 (e), Supreme Court Rules, 28 U.S.C., Rules, as amended.

"The question of whether the investigation had focused on the accused at the time of the making of the statement and thereby shifted 'from investigatory to accusatory' is not the deciding factor in regard to the admissibility of the confession in the instant case. There are other factors under the ruling of the Escobedo case. Defendant in the instant case was advised of his rights. He had not requested counsel, and had not been denied assistance of counsel. We further call attention to the fact that, as pointed out in the companion case here on appeal, State v. Miranda, No. 1397 [98 Ariz. 11, 401 P. 2d 716] defendant had a record which indicated he was not without courtroom experience. [Citation omitted] It included being arrested in California on suspicion of armed robbery, and a conviction and sentence in Tennessee on violations of the Dwyer [sic] Act. Under the circumstances he was certainly not unfamiliar with legal proceedings and his rights in court. The police testified they had informed defendant of his rights, and he stated in his written confession that he understood his rights (which would certainly include his right to counsel), and it is not for this court to dispute his statement that he did. His experience under previous cases would indicate that his statement that he understood his rights was true. (R. 88-89)

* * *

"What is the purpose of the right to counsel? What is the purpose of the Sixth and Fourteenth Amendments? Without question it is to protect individual rights which we cherish, but there must be a balance between the competing interests of society and the rights of the individual. Society has the right of protection against those who roam the streets for the purpose of violating the law, but that protection must not be at the expense of the rights of the individual guaranteed under the Sixth and Fourteenth Amendments to our Constitution. (R. 91-92)

* * *

"It will be noted in the discussion of these cases—particularly the Escobedo case—the ruling of the court is based upon the circumstances of the particular case. The court, in making its holding in the Escobedo case, stated 'under the circumstances here the accused must be permitted to consult with his lawyer.'"

"Most of the cases distinguished the Escobedo case on the grounds that the defendant requested and was denied the right to counsel during interrogation. The Escobedo case merely points out factors under which—if all exist—it would not be admissible. We hold that a confession may be admissible when made without an attorney if it is voluntary and does not violate the constitutional rights of the defendant."

"Each case must largely turn upon its own facts, and the court must examine all the circumstances surrounding the taking of the statement in determining whether it is voluntary and whether defendant's constitutional rights have been violated."

"The facts and circumstances in the instant case show that the statement was voluntary, made by defendant of his own free will, that no threats or use of force or coercion or promise of immunity were made; and that he understood his legal rights and the statement might be used against him. Under such facts and circumstances we hold that, notwithstanding the fact that he did not have an attorney at the time he made the statement, and the investigation was beginning to focus upon him, defendant's constitutional rights were not violated, and it was proper to admit the statement in evidence." (R. 92-93)

SUMMARY OF ARGUMENT

Petitioner was in no way denied his constitutional right to counsel in this case. He neither merits, nor is he reason for, the pronouncement of the broad constitutional principle which is sought.

Petitioner received a full elementary education and, although he had an emotional illness, he had sufficient mentality and emotional stability to understand what he was doing when he was doing it, and to fully appreciate all the potential consequences of his act.

Clearly there was no police brutality or any possible official overreaching in the acquisition of the statements here in question. Yet petitioner, nonetheless, portrays the police generally in the worst possible light, in attempting to justify the need for the rule he seeks. The examples of bad police activity represent the exceptions to the general rule as regards police conduct and attitude, and do not merit or require an overly broad constitutional rule which would strike down the good with the bad.

Petitioner infers that since he stood no chance of victory in the trial of the case after the statements were given, he was therefore deprived of some right. Nothing could be further from the truth. He has no such right to "win." The Constitution insures that he must not be convicted as a result of any violations of those rights which we all cherish; it doesn't insure that he won't be convicted.

The decision of the Arizona Supreme Court below rested on many factors, of which the lack of a request for counsel was but one. It determined that the totality of these factors did not result in affirmative conduct which denied petitioner his right to counsel. There was no element of waiver involved in the Arizona Court's decision.

The decision of this Court in Escobedo v. Illinois, 378 U.S. 478 (1964) does not require the reversal of this case. The facts are significantly different. The legal principles therein announced, considered within the context of that decision as it discusses not only the particular facts of the case but also the significance of the prior decisions of this Court on the same subject matter, implement an exclusionary rule directed to deter the police from affirmative conduct calculated, under the facts of any given case, to deny an accused from consulting with counsel. Such a rule, in proper perspective and balance, will protect the accused from any infringement of his right to counsel, while not unduly or unnecessarily curtailing the oft times essential investigative questioning of a suspect.

⁸ Brief of Petitioner, at 10.

⁹ Ibid.

ARGUMENT

I. Introduction

Petitioner states that his life for all practical purposes was over when he walked out of Interrogation Room #2 on March 13, 1963.⁸ The real fact is that Miranda's life was unalterably destined ten days earlier during the late evening hours of March 2 and the early morning hours of March 3, when he kidnapped and raped his victim, Patricia Weir. What followed must not be described in cynical terms as "the ceremonies of the law";⁹ they were, and are, the carefully ordained processes of our judicial system, designed, at the optimum, to discover the truth, mete out justice to all, insure the guilty their just and proper recompense and vindicate the innocent. To be sure, thoroughly interwoven into these processes at all stages and levels is the implementation and zealous protection of those cherished rights and privileges guaranteed to all by the Constitutions of the United States and the several states; no police officer, prosecutor or judge dedicated to the basic precepts of our system of government advocates that it should be any different.

Unfortunately, or perhaps fortunately, so long as human beings rather than computers administer the processes of justice, mistakes and error will occur and injustices will be done. The courts of our land, including this Court with its highest and most final jurisdiction, are daily exposing and correcting these mistakes to the best of their ability. The question here before the Court is whether there was such a mistake or error in this case of a dimension to result in the denial of petitioner's right to counsel as set down in the Constitution of the United States, and as proclaimed by this Court in its decisions thereunder.

II. There are no inherent defects either in this defendant, the operation of law enforcement agencies, or in our system of criminal justice, which require a rule of the constitutional impact and proportions here sought by petitioner

A. The defendant The very description of the petitioner in his Question Presented¹⁰ subtly introduces a factual issue into this case which is of the gravest importance in resolving the ultimate legal question.

The words so carefully used were "poorly educated, mentally abnormal." No doubt other descriptive words and phrases could have been added—poor, motherless, unloved, downtrodden, culturally deprived, misguided, unguided, harassed, ad infinitum.

It is practically impossible to pick up a national magazine, professional journal, or listen to an address without some dramatic usage of these descriptive adjectives to characterize some greater or lesser portion of the American population.¹¹ And in the proper perspective, such attention, whether it be by this Court,¹² the Congress,¹³ the executive,¹⁴ or state and local governments,¹⁵ is long overdue and, hopefully, will do something about the root-source of our most perplexing problems—not the least of which is the rising crime rate.¹⁶

However, to use these heart-rending descriptions in an attempt to justify or excuse the knowing and deliberate violation of our criminal statutes and the imposition of violence and suffering and depravation upon some individuals of our society by others, is misleading to say the least. Of this ilk, Miranda is a clear example.

Perhaps an eighth grade education, under a literal definition of the term and in the context of our affluent society, is a "poor education." Under no stretch of the imagination, however, can Miranda be deemed to be uneducated or illiterate. In addition to his formal schooling, petitioner had considerable and varied experiences which broadened his knowledge, particularly in the area which is of primary importance to us now.¹⁷

¹⁰ Id. at 2.

¹¹ E.g. Nine "Unadoptable" Children Joined by Love, Look Magazine, Oct. 19, 1965, at 54; Winters, Counsel for the Indigent Accused in Wisconsin, 49 Marq. L. J. 1 (1965); Inaugural Address of President John F. Kennedy, January 20, 1961, 107 Congressional Record, 1013.

¹² E.g. Brown v. Board of Education, 347 U.S. 483 (1954).

¹³ E.g. Public Works and Economic Development Act of 1965, 42 U.S.C. §§ 3121-3226.

¹⁴ E.g. State of the Union Address, President Lyndon B. Johnson, January 12, 1966, 112 Congressional Record 129.

¹⁵ E.g. Operation LEAP (Leadership and Education for the Advancement of Phoenix), Ordinance No. S-3205, Dec. 15, 1964, City Council of Phoenix, Arizona, Implementing Resolution No. 11887, November 4, 1964.

¹⁶ E.g. Hoover, Annual Report of the Federal Bureau of Investigation, Fiscal Year 1965, U.S. Department of Justice.

¹⁷ See n. 4, supra.

¹⁸ Brief of Petitioner, n. 3.

Counsel would have us believe that petitioner was incapable of producing the statement which was admitted against him (Appendix B. infra).¹⁸ A simple reading and viewing of the statement refutes such a contention. The portion of the statement describing the actual events of the incident is in petitioner's hand and was written by him. Certainly the officers, if they were interested in putting words into Miranda's mouth, could have typed in these words also, in a favorable context, and simply obtained Miranda's signature to the whole. And although petitioner's grammar, sentence structure and punctuation leave much to be desired, the conclusion is inescapable that his knowledge and understanding of the difference between simple promiscuity and the crime of rape is more highly sophisticated than most of the Ph.Ds in our country.¹⁹

Miranda is also labeled as "mentally abnormal." The basis for this is the psychiatric report (Appendix A, infra). While Miranda had an "emotional illness," it is questionable that this even made him "abnormal."²⁰ Clearly the diagnosis of the psychiatrist was to the effect that the illness was not disabling and that Miranda was able to understand the predicament he was in and knew the conduct society demanded of him at the time he chose to ignore those demands.²¹

B. The police Admittedly there is no possible element of police brutality or coercion in this case, whether direct or subtle.²² Yet petitioner, nevertheless, paints a picture of police disregard for rights guaranteed by our Constitution. The picture is inaccurate—but proving it so is almost a practical impossibility.

The articles, the studies, and the cases,²³ dealing, as they almost unanimously do, with the negative aspect of the problem, make it difficult to see the rule because of the emphasis on the exception. It is true that all police officers are not interested in protecting the rights of the accused; it is true that there are convictions obtained by use of trumped-up evidence and wrongfully elicited incriminating statements and confessions; but these are the very few exceptions to the general rule. For every case of police insensitivity to individual rights, there are literally thousands of unreported incidents of the unstinting efforts of police and prosecutors which result in the extrication of an otherwise helpless and innocent victim, hopelessly intertwined in a web of circumstantial evidence of guilt.²⁴ The prime reason the vast majority of such instances go unreported and unstatisticized, is that the police and the prosecutor alike consider this just another important, but routine part of their work, which they do with the same dedication as they do the more spectacular phases.²⁵

¹⁹ Note petitioner's careful use of the words "without force," "without force and with cooperation," "asked her to lay down, and she did." Appendix B, infra. See also petitioner's quoted sentence responses, statement of the case, supra, at 2.

²⁰ It has been estimated that at least 10% of our entire population have emotional illnesses of one type or another which should be treated professionally. Milt, How to Deal With Mental Problems, (National Association for Mental Health, Booklet, 1962).

²¹ "It is my opinion that Mr. Mirande [sic] is aware of the charges that have been brought against him and is able to cooperate with his attorney in his own defense. Although Mr. Mirande [sic] has an emotional illness, I feel that at the time the acts were committed that he was aware of the nature and quality of the acts and that he was further aware that what he did was wrong." Appendix A, infra.

²² Brief of Petitioner, at 10.

²³ E.g. LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash. U.L.Q. 331; Smith, Police Systems in the United States, (2d rev. ed. 1960); Ashcraft v. Tennessee, 322 U.S. 143 (1944).

²⁴ A person cannot talk to a police officer or prosecutor of many years tenure without hearing of numerous such incidents, many made possible by not only investigating extrinsic physical facts, but also by investigative questioning.

²⁵ The Law Enforcement Code of Ethics, as set forth in The Detroit Police Manual, and cited in Norris, Constitutional Law Enforcement is effective Law Enforcement: [Etc.], 43 U. Det. L. J. 203 (1965), n. 30, clearly reflects the importance of this particular responsibility, and represents the rule and not the exception:

"Law Enforcement Code of Ethics"

As a Law Enforcement Officer, my fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence or disorder; and to respect the Constitutional rights of all men to liberty, equality and justice.

I will keep my private life unsullied as an example to all, maintain courageous calm in the face of danger, scorn or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in thought and deed in both my personal and official life, I will be exemplary in obeying the laws of the land and the regulations of my department. Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary in the performance of my duty.

I will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence and never accepting gratuities.

I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to hold so long as I am true to the ethics of police service. I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession—Law Enforcement."

This Court, together with all the courts of our land, should and will continue to firmly and courageously deal with the exceptions to this rule. We must be careful, however, not to foreclose, limit or unduly hamper investigative techniques which, in their legitimate use, are not barred by any Constitutional mandate, solely because a few use the techniques to effect an unconstitutional result. The promulgation of such a rule of constitutional dimension in any given case would be as necessary as "Dr." Jerry Colona's recently suggested solution to Bob Hope's medical problem of a sore and infected big toe—to cut off Hope's head to relieve the excess weight on the toe.²⁶ While it goes without saying that the problem of the big toe would most certainly be forever solved, it is questionable whether the patient would be at all happy with the ancillary side effects of the treatment. As to whether a similarly undesirable side effect would be forthcoming from an unnecessarily broad constitutional rule in this case, we must look ahead.

C. The nature of the contest Petitioner, it seems, would have us interpret our adversary system of criminal justice as giving the accused a right to "win" the contest.²⁷ While it may be inherent in the very nature of our system, with its vital and essential safeguards to individual freedom, that a person who actually commits a criminal act may have extra opportunities to escape punishment for his crime, it must be clear without comment or citation that the intent of the Constitutional safeguards were to insure, as much as humanly possible, that the innocent and unpopular would not be wrongfully harassed, intimidated or convicted—not that the guilty should have any special chances for acquittal or other favorable result.

If the prosecuting authorities have gained an overwhelming advantage over a particular defendant, assuming they have done so by proper methods, and not by violating any of his constitutional rights, this is to be highly commended, not condemned. It is a vital attribute of our society that the law enforcement machinery apprehend, convict and punish and/or rehabilitate those who would break the laws and endanger, if not destroy, our domestic tranquility. Law enforcement is not a game of chance, Massiah v. United States, 377 U.S. 201, 213 (1964) (Dissenting Opinion); McGuire v. United States, 273 U.S. 95 (1927). There is no "gamesmanship" or "sportsmanship" involved here, at least insofar as the criminal is concerned. He follows no code of conduct or canons of ethics. The death, suffering, and depravation caused by crime is as real to those who are touched by its sting as is that of any war ever fought. Certainly the criminal gives no quarter; and none should be given in return except as is required to insure the integrity and continuation of the system which we all cherish.

Criminals, like the rest of us, are inherently unequal. Some are skilled, some not; some intelligent, some not; some trained, some not; some blabbermouths, some not; some strong, some not; some cruel, some not, etc. It certainly would not be urged that if a criminal is foolish enough to leave physical clues, the police should not be allowed to use them because X, who committed the same crime, was more careful. Or if Y was callous enough, or "intelligent" enough, to kill his rape victim to prevent identification, certainly Z, who also raped, should not be given the same opportunity to kill so as to have an equal chance at the trial to "win." So, too, are there differences between what happened to Ernesto A. Miranda as contrasted with what happened to Danny Escobedo²⁸ which militate in favor of a different resolution of their problem by this Court.

²⁶ Bob Hope Christmas Special, N.B.C. Television Network, January 26, 1966, 8:30 P.M., M.S.T.

²⁷ Brief of Petitioner, at 9.

²⁸ Escobedo v. Illinois, 378 U.S. 478 (1964).

²⁹ Brief of Petitioner, at 28.

³⁰ For an exhaustive citation of the cases construing Escobedo, both on a State and Federal level, see: Sokol, Brief of Amicus Curiae in The Escobedo Cases (The Michie Company, 1966).

III. Miranda was not denied his right to counsel as guaranteed to him by the Sixth and Fourteenth Amendments to the Constitution of the United States

The decision in this case must rest upon the scope and effect to be attributed to this Court's decision concerning right to counsel at the interrogation stage, in Escobedo v. Illinois, 378 U.S. 478 (1964). While petitioner's historical analysis is to be highly commended for the care and effort which it reflects, his almost cursory treatment of Escobedo, coupled as it is with an inaccurate treatment of the Arizona Court's decision in the instant case, belies some doubt as to the absolute accuracy of the conclusion forecast as unassailable. Rather than obscuring the "simple lines of the situation,"²⁹ the welter of the cases, the majority of which disagree with petitioner's conclusion,³⁰ coupled with the rather sharp divergence of opinion on this Court, not only in the recent decisions on this point, e.g., Massiah v. United States, 377 U.S. 201 (1964) and Escobedo v. Illinois, supra, but in the earlier decisions as well, e.g., Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. LaGay, 357 U.S. 504 (1958), indicate the problem posed here to be anything but simple.

A. The Arizona court's decision Petitioner, at least twice,³¹ states that the Arizona Supreme Court rested its opinion on petitioner's refusal to request counsel. A reading of the opinion clearly reveals that this was only one factor in many which resulted in a determination that Miranda was not denied his right to counsel (Statement of the Case, supra, at 4). The nature and length of the questioning, the warning advice given, and the background of the petitioner were equally important factors. Petitioner is correct in stating that the Arizona Court's decision did not in any way purport to rest on a waiver doctrine.³² This is made amply clear in the Arizona Supreme Court's decision in State v. Goff, ___Ariz. ___, 407 P. 2d 55 (1965), where the court referred to this aspect of its decision in Miranda:

"We did not conclude from Escobedo that the Supreme Court of the United States held that arbitrarily and in every instance admissions made to police officers after an investigation has become accusatory are inadmissible in evidence unless a suspect has knowingly waived his right to counsel." Id, 407 P. 2d at 57.

The Supreme Court of California, in People v. Dorado, 42 Cal. Rptr. 169, 398 P. 2d 361 (1965), and indeed the dissenting Justices of this Court in Escobedo v. Illinois, supra, 378 U.S. at 495, have forecast, as a minimum, a contrary conclusion. If this latter view is proved to be correct, that is the end of this case, and untold thousands like it throughout the length and breadth of this land. We choose, however, in turning our attention to Escobedo, to approach the import of that decision with the "hope" expressed by Justice Stewart in concluding his separate dissenting opinion in Escobedo v. Illinois, Ibid.

B. Escobedo v. Miranda Petitioner prefers to dwell on the implicit in Escobedo.³³ The explicit facts of the case are considered by respondent to be highly relevant and very crucial to the indicated result in Miranda.

Danny Escobedo had retained counsel and repeatedly requested to consult with him. The requests were all denied. Escobedo was even told at one time that his lawyer didn't want to see him. On the contrary, Escobedo's lawyer was trying desperately to see his client, and was thwarted at every turn by the police, in spite of a specific Illinois statute requiring the police to admit the lawyer. Escobedo v. Illinois, supra, 378 U.S. at 480. Escobedo had no record of previous experience with the police. He was interrogated not only by police officers, but by a skilled and experienced lawyer. Escobedo was told that another suspect had pointed the finger at him as the guilty one. At no time was he ever advised of his constitutional rights by either the police or the prosecutor.

Ernesto A. Miranda was not represented by counsel at the time of the questioning here involved. He had not requested that counsel be provided, or that he be given an opportunity to consult with counsel prior to talking to the police. The officers did not deny him an opportunity to consult with counsel, nor did they in any way use chicanery in their questioning of Miranda. Petitioner had had considerable and varied experience with the police on previous occasions. Petitioner was advised of his constitutional rights, specifically including his right to remain silent, the fact that his statement had to be voluntary, and that anything he did say could be used against him.³⁴

In setting forth the holding of the case, this Court very carefully enumerated the factors which resulted in the denial of counsel to Escobedo:

³¹ Brief of Petitioner, at 6, 30.

³² Id, nn. 7 and 15.

³³ Id, at 30—in fact, it would appear, on the following page of his brief, that he relies perhaps more upon the guiding light of the California Supreme Court than the pronouncements of this Court.

³⁴ It is not here disputed that petitioner was not specifically advised of his right to counsel.

"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied counsel, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the assistance of counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the states by the Fourteenth Amendment,' Gideon v. Wainright, 372 U.S. at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." Escobedo v. Illinois, supra, 378 U.S. at 490 and 491.

Of the five specific elements, which might be set forth as: (1) Accusatory Stage; (2) Police Custody; (3) Interrogation to elicit incriminating statements; (4) Request and Denial of an opportunity to consult counsel; and (5) Effective Warning of his absolute right to remain silent, petitioner contends that only (4) is absent here and that its absence is not crucial. Both premises are incorrect.

The Arizona Court clearly considered that Miranda had been warned of his absolute right to remain silent. The facts cited in that opinion, together with the Appendix to Petitioner's Brief, provided an ample basis for such a conclusion. And to discount item (4) concerning the request, is to completely ignore not only the plain wording of the opinion in Escobedo, but to completely disregard the factual and legal bases for the opinions cited in petitioner's historical analysis as demanding the ultimate ruling sought herein. E.g., Crooker v. California, supra, (Douglas, J., dissenting):³⁵ Spano v. New York, 360 U.S. 315, 325 (1959), (Douglas, J., concurring).³⁶ The court lays a great stress on this factor, together with the failure of the police to warn the accused of his absolute right to remain silent. Escobedo v. Illinois, supra, 378 U.S. at 479, 480, 481, 482, 485, 486, 491, 492.

There are two other matters in the opinion itself which militate against petitioner's sought-for rule being all but announced. They are: (1) The treatment accorded the prior decisions of this Court in Crooker v. California, supra, 357 U.S. 433 and Cicenia v. LaGay, supra 357 U.S. 504, and (2) The Court's special and clear emphasis of the request for and denial of counsel in spite of its recent restatement that the right to counsel did not depend upon a formal request, Carnley v. Cochran, 369 U.S. 506 (1962).

Instead of completely overruling Crooker and Cicenia, the Court noted that the holding itself in Crooker, on the distinguishable facts in that case, which were set forth in some detail (Escobedo v. Illinois, supra, 378 U.S. at 491, 492), would possibly have been the same under the principles announced in Escobedo. In implicitly accepting the result in Crooker, while discarding the language inconsistent with the principles of Escobedo, the Court specifically approves the rejection of the absolute rule sought by Crooker:

"That 'every state denial of a request to contact counsel [is] an infringement of the constitutional right without regard to the circumstances of the case." Id, at 491. (Emphasis in Crooker.)

The continued rejection of the absolute rule sought by Crooker, implying as it does that in some cases a state could even deny a request without denying an accused his constitutional right to counsel, clearly rejects, a fortiori, the absolute rule sought by petitioner.

This result is also pointed to by the inclusion and emphasis of the request for counsel as a vital factor in Escobedo while not even including a reference to this Court's recent reemphasis of the unimportance of a request for counsel in the implementation of the absolute right to be provided counsel in Carnley v. Cochran, supra, 369 U.S. 506. The omission of reference to Carnley must be considered to have been by design and not accident. Thus the scope of the rule, and the force of its emphasis, must be and is different.

³⁵ "This demand for an attorney was made over and again prior to the time a confession was extracted from the accused. Its denial was in my view a denial of that due process of law guaranteed the citizen by the Fourteenth Amendment." 357 U.S. at 442.

³⁶ "The question is whether after the indictment and before the trial the Government can interrogate the accused in secret when he asked for his lawyer and when his request was denied." 360 U.S. at 325. (Emphasis in original.)

³⁷ "The Solicitor General, in his brief and oral argument, has strenuously contended that the federal law enforcement agents had the right, if not indeed the duty, to continue their investigation of the petitioner and his alleged criminal associates even though the petitioner had been indicted. He points out that the Government was continuing its investigation in order to uncover not only the source of narcotics found on the S.S. Santa Maria, but also their intended buyer. He says that the quantity of narcotics involved was such as to suggest that the petitioner was part of a large and well-organized ring, and indeed that the continuing investigation confirmed this suspicion, since it resulted in criminal charges against many defendants. Under these circumstances the Solicitor General concludes that the government agents were completely 'justified in making use of Colson's cooperation by having Colson continue his normal associations and by surveilling them.'

"We may accept and, at least for present purposes, completely approve all that this argument implies, Fourth Amendment problems to one side. We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant's own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial." Massiah v. United States, 377 U.S. at pages 206 and 207. (Emphasis in original.)

The decision in Escobedo announces an exclusionary rule directed against the affirmative conduct of police and prosecutors calculated to deny to an accused his right to counsel. Any incriminating statements received thereafter, regardless of the fact that they are clearly the product of the free and uncoerced will of the accused, are inadmissible, Escobedo v. Illinois, supra, 378 U.S. at 491. The decision in Massiah v. United States, supra, 377 U.S. 201, although involving a federal prosecution, certainly reinforces this view of the Escobedo doctrine, particularly the last two paragraphs thereof.³⁷

The rule announced is a parallel to that announced in Mapp v. Ohio, 367 U.S. 643 (1961), designed as a specific deterrent to police activity calculated to render meaningless the citizen's rights under the search and seizure provision of the Fourth Amendment to the Federal Constitution. It must also be applied with the same practical, non-technical, common sense approach as is the Mapp exclusionary rule. United States v. Ventresca, 380 U.S. 102 (1965).

A contrary application would result in attempting to make police officers part-time defense counsel and part-time magistrates, or deprive them completely of an investigative technique which, in its proper use and application, is as invaluable as any modern, scientific tool for the detection and prevention of crime.

The legal scholars and commentators have produced volumes of material on Escobedo.³⁸ It ranges the complete spectrum, from law professors and lawyers³⁹ to second and third year law students.⁴⁰ Both poles of the controversy are forcefully presented, including extensive citations to both primary and secondary authority, in the very recent publication of the University Press of Virginia: Kamisar, Inbau, and Arnold, Criminal Justice in Our Time, (Magna Carta Essays, Howard ed. 1965).

Ultimately, however, neither the overwhelming weight of the writings of the commentators, nor the weight of the decisions of the Judges and Justices of the other appellate tribunals of our land, whether state or federal, can dictate or necessarily foreshadow this Court's determination of the scope and effect of the principles announced in Escobedo.

If the rule sought by petitioner is forthcoming, we can only re-echo the ominous warnings and misgivings of the dissenters in Massiah and Escobedo, supra. Miranda and Escobedo are not equal and there is no Constitutional reason for this Court to equate them in the manner sought by petitioner, any more than there would be for this Court to balance their skill in committing and concealing their crime. No amount of scientific advancements in crime detection will produce evidence which a clever criminal has not been foolish enough to provide for discovery. If a criminal has been clever in the commission of his crime, but is foolish or careless in his handling of the police interrogation of him concerning that crime, the evidence obtained as a result of the only honest investigative avenue left open to the law enforcement agency, should not be suppressed unless that evidence is determined not to be the product of the free and uncoerced will of the accused, or if it is obtained after the police have undertaken a course of conduct calculated to deny the accused his right to counsel. Certainly nothing less will be tolerated, but the United States Constitution requires no more.

CONCLUSION

Quite appropriately, Justice Goldberg, who authored Escobedo v. Illinois, supra, provides the words most appropriate to conclude this brief. Speaking for the Court in United States v. Ventresca, supra, 380 U.S. 102, he said:

³⁸ For an exhaustive collection of citations see: Sokol, Brief of Amicus Curiae in the Escobedo Cases, supra, n. 29.

³⁹ E.g. Sutherland, Crime and Confession, 79 Harv. L. Rev. 21 (1965); Dowling, Escobedo and Beyond, 56 J. Crim. L., C.&P.S., 143 (1965); Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L.J. 449 (1964).

⁴⁰ E.g. Comment, Escobedo v. Illinois, 25 Md. L. Rev. 165 (1965); Comment, Right to Counsel During Police Interrogation, The Aftermath of Escobedo, 53 Calif. L. Rev. 337 (1965); Note, Escobedo in the courts, May Anything You Say Be Held Against You, 19 Rutgers L. Rev. 111 (1964).

"This court is alert to invalidate unconstitutional searches and seizures whether with or without a warrant. [Presumably, for purposes of this case, confessions and admissions may be substituted for the final phrase concerning searches and seizures.] [Citations omitted.] By doing so, it vindicates individual liberties and strengthens the administration of justice by promoting respect for law and order. This court is equally concerned to uphold the actions of law enforcement officers consistently following the proper constitutional course. This is no less important to the administration of justice than the invalidation of convictions because of disregard of individual rights or official overreaching. In our view the officers in this case did what the Constitution requires.

* * *

"It is vital that having done so their actions should be sustained under a system of justice responsive both to the needs of individual liberty and to the rights of the community." Id, at 111 and 112. (Emphasis added).

The officers in this case also acted within the constitutional standards, and it is equally vital that their actions be sustained.

The judgment and decision of the Arizona Supreme Court in this case below should be affirmed.

Respectfully submitted,

Darrel F. Smith,
The Attorney General of Arizona.

Gary K. Nelson,
Assistant Attorney General, Rm. 159, State Capitol Bldg., Phoenix, Arizona 85007,
Attorneys for Respondent.

Gary K. Nelson,
Assistant Attorney General, of Counsel
February, 1966

APPENDIX A

JAMES M. KILGORE JR., M.D.
Suite 209
461 West Catalina Drive
Phoenix 13, Arizona
PSYCHIATRY
May 28, 1963

Honorable Warren L. McCarthy
Judge of the Superior Court
Maricopa County
Court House
Phoenix, Arizona
MIRANDA, Ernest Arthur Criminal Cause #41947, #41948

Ernest Arthur Miranda is a 23-year-old Mexican male who was examined by me in the County Jail on May 26, 1963.

Mr. Miranda is charged with the offense of robbery in relation to one Barbara Sue McDaniel on November 27, 1962. Mr. Miranda states that on that evening approximately 9:30 p.m. he saw a lady go to her car in the parking lot alone. He approached the car and got in the front seat. He stated at the time that he didn't know whether he would rob or rape the lady. She asked him if he didn't want to go to her apartment. Mr. Miranda stated that this frightened him in that she was so eager for sex and decided at that point to ask for money which she readily gave to him. He then said, "Don't worry. If I had wanted to rape you, I would have done it before."

The second offense for which Mr. Miranda is charged occurred on March 3, 1963, at which time he is supposed to have kidnapped and raped Patricia Ann Weir. Mr. Miranda stated that he knew Patricia Ann Weir, an 18-year-old single girl who worked in the theater. He had occasionally seen her there and on the evening of March 3 at approximately 11:00 p.m. he saw her walking toward the bus stop. He drove ahead of the bus and when she got off close to her home he was waiting for her. As she came close to the car he said to her, "You don't have to scream. I am not going to hurt you." He then told her to get into the car, which she did, and they drove out into the desert. He asked her to remove her clothing, which she did without resistance. He removed his clothes and performed the act of sexual intercourse. Miss Weir, according to the patient, did not resist, but during the process of sexual relations was tearful. Mr. Miranda was somewhat upset when he learned that the girl had not previously had sexual relations. He stated that if at any time the girl had refused or resisted, that he would not have proceeded. He then took her within a block or two of her house where he let her out. He asked if she would "tell on me." The girl did not respond. He stated "I didn't know how to ask her for forgiveness."

Mr. Miranda is age 23 and he has a common-law wife, age 30. They have been living together since August, 1961. His wife has two children by her first husband, a son, 11, and a daughter, 10. Mr. Miranda and his wife have a daughter, 9¹/₂ months of age. He has worked as a truck driver and also as a worker in a warehouse. Mr. Miranda's father is age 55 and works as a painter in Mesa. He stated that he did not get along with his father during his adolescent years and was frequently beaten up by his father when he got into trouble. Mr. Miranda's mother died in 1946 at the age of 34 when Mr. Miranda was six years of age. He was reared by his stepmother, age unknown. He stated with reference to her, "I never could get adjusted to her." Mr. Miranda completed half of the ninth grade at the age of 15. Mr. Miranda was first placed on probation at the age of 14 after having stolen a car. Three months later he was sent to Fort Grant for a period of six months. Shortly after returning he was sentenced for a year on an attempted rape and assault charge. According to Mr. Miranda's description of this incident, he was walking by a home in which he saw a lady lying in bed with no clothes on. He went up to the front door and it was open; he entered the home and crawled in bed with the woman. Her husband returned home shortly and the police were called. In 1957 at the age of 17 Mr. Miranda was picked up in Los Angeles for being a peeping tom and charged with lack of supervision and was placed on probation. He was also arrested twice in L.A. on suspicion of armed robbery. He was in the Army from April, 1958, to July, 1959. He was placed in the brig for being a peeping tom and given an undesirable discharge. In December, 1959, he was sentenced to the Federal Penitentiary for transporting a stolen automobile across state lines.

Mr. Miranda is a 23-year-old Mexican man who is alert and oriented as to time, place, and person. His general knowledge and information is estimated to be within normal limits as is his intelligence. He is emotionally bland, showing little if any effect. He is shy, somewhat withdrawn. He tends to be somewhat hypoactive. The patient's responses to proverbs are autistic and somewhat bizarre; for example, to the proverb "a rolling stone gathers no moss," the patient interpreted this to mean "If you don't have sex with a woman, she can't get pregnant." To the proverb "a stitch in time saves nine," Mr. Miranda's response is "If you try to shut something in, you keep it from going out." To the proverb "people in glass houses shouldn't throw stones," Mr. Miranda states "A person with one woman shouldn't go to another women." Mr. Miranda states that he is not particularly concerned about himself at this point or the trouble that he is in except in that it might interfere with his looking after his wife and child.

It is my diagnostic impression that Mr. Miranda has an emotional illness. I would classify him as a schizophrenic reaction, chronic, undifferentiated type.

It is my opinion that Mr. Miranda is aware of the charges that have been brought against him and is able to cooperate with his attorney in his own defense. Although Mr. Miranda has an emotional illness, I feel that at the time the acts were committed that he was aware of the nature and quality of the acts and that he was further aware that what he did was wrong.

/s/ James M. Kilgore Jr.
JAMES M. KILGORE JR., M.D.
JMK/db

APPENDIX B

STATE'S EXHIBIT 1

CITY OF PHOENIX, ARIZONA

POLICE DEPARTMENT

Form 2000-66-D     Witness/Suspect

Rev. Nov. 59     Statement

SUBJECT: Rape D.R. 63-08380

STATEMENT OF: Ernest Arthur Miranda

TAKEN BY: C. Cooley #413—W. Young #182

DATE: 3-13-63     Time: 1.30 P.M.

PLACE TAKEN: Interr Rm #2

I, Ernest A. Miranda, do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me.

I, Ernest A. Miranda, am 23 years of age and have completed the 8th grade in school.

E.A.M. Seen a girl walking up street stopped a little ahead of her got out of car walked towards her grabbed her by the arm and asked to get in the car. Got in car without force tied hands & ankles. Drove away for a few miles. Stopped asked to take clothes off. Did not, asked me to take her back home. I started to take clothes off her without any force and with cooperation. Asked her to lay down and she did could not get penis into vagina got about ½ (half) inch in. Told her to get clothes back on. Drove her home. I couldn't say I was sorry for what I had done. But asked her to say a prayer for me. E.A.M.

I have read and understand the foregoing statement and hereby swear to its truthfulness.

/s/ Ernest A. Miranda
WITNESS /s/ Carroll Cooley
Wilfred M. Young #182

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 RESPONDENT

Steiner, Crum & Baker,
1109-25 FIRST NATIONAL BANK BUILDING, MONTGOMERY 1, ALABAMA,
Calvin Whitesell,
MONTGOMERY, ALABAMA, OF COUNSEL.
Robert E. Steiner III,
Sam Rice Baker,
M. Roland Nachman Jr.,
ATTORNEYS FOR RESPONDENT

Index

Questions Presented

Statutes Involved

Statement

1. Merits
2. Jurisdiction
   1. General Appearance
   2. Validity of Service of Process on The New York Times

Summary of Argument

Argument

1. The Constitution Confers No Absolute Immunity to Defame Public Officials
   Libelous Utterances Have No Constitutional Protection
   The Advertisement Was Libelous Per Se
   Damages Awarded by the Jury May Not Be Disturbed
2. There Is No Ground for Reviewing a Jury Determination That the Advertisement Was "Of and Concerning" the Plaintiff
3. This Case Provides No Occasion for Excursions From This Record and From Accepted Constitutional Standards
4. The Times Was Properly Before the Alabama Courts

Conclusion

Certificate

Appendix A

Respondent adopts petitioner's statement of "Opinions Below" and "Jurisdiction."

QUESTIONS PRESENTED

1. Does a newspaper corporation have a constitutionally guaranteed absolute privilege to defame an elected city official in a paid newspaper advertisement so that the corporation is immune from a private common law libel judgment in a state court in circumstances where, because of the admitted falsity of the publication, the newspaper is unable to plead or prove state afforded defenses of truth, fair comment, privilege or retraction (to show good faith and eliminate punitive damages), and where the corporation has retracted the same false material for another admittedly "on a par" with the city official?

2. When the only claimed invasion of a corporation's constitutional rights is that a city official successfully sued it for damages in a private civil action for libel in a state court in circumstances described in Question 1, and when the corporation does not contend that the state trial proceedings have been unfair, has there been an abridgement of the corporation's constitutional rights under the First and Fourteenth Amendments?

3. Are libelous utterances in a paid newspaper advertisement within the area of constitutionally protected speech and press?

4. When an admittedly false newspaper advertisement published in circumstances described in Question 1 charges that city police massively engaged in rampant, vicious, terroristic and criminal actions in deprivation of rights of others, is a state court holding in a private common law libel action that such an utterance is libelous as a matter of state law—leaving to the jury the questions of publication, identification with the police commissioner, and damages—an infringement of the newspaper's constitutional rights?

5. When a paid newspaper advertisement published in circumstances described in Question 1 contains admittedly false charges described in Question 4 about police action in a named city, may this Court consistently with its decisions and the Seventh Amendment review on certiorari a state jury finding, in a trial concededly fair, that the publication is "of and concerning" the city police commissioner whose name does not appear in the publication, and an award of general and punitive damages to him, when this state jury verdict embodied in a final state judgment has been approved by the state's highest appellate court?

6. May this Court consistently with its decisions and the Seventh Amendment re-examine facts tried by a state jury in a trial concededly fair, when those findings have been embodied in a final state judgment affirmed by the highest state appellate court, and when review is sought on assertions that the verdict is wrong and the general and punitive libel damages merely excessive?

7. When a foreign corporation makes a general appearance in a private state civil action against it, according to state law consistent with the majority view of all states, is there an adequate independent state ground as to jurisdiction over this foreign corporation?

8. Even if there had been no general appearance as described in Question 7, when a foreign newspaper corporation continuously and systematically gathers news by resident and transient correspondents, solicits advertising in person and by mail, and distributes its newspapers for sale in the forum state, and when some of these activities are incident to the cause of action in suit, has this foreign corporation sufficient contacts with the forum state so that suit against it is fair in accordance with decisions of this Court so explicit as to leave no room for real controversy?

STATUTES INVOLVED

Statutes referred to in this brief are contained in an appendix hereto.

STATEMENT

In the New York Times of March 29, 1960, there appeared a full-page advertisement, "warmly endorsed" by the four petitioners in No. 40, entitled, "Heed Their Rising Voices."¹ Charging generally "an unprecedented wave of error," the advertisement said of Montgomery:

"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 shotguns 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.

* * * * * * *

"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."

Respondent, police commissioner of Montgomery, asked $500,000 as damages for this libel from the New York Times and the four "warm endorsers."

After a lengthy hearing the trial court held on August 5, 1960, that the New York Times was amenable to suit in Alabama. It had made a general appearance the court found. And, moreover, its business activities in Alabama, some of which had given rise to the cause of action, were sufficient contacts under due process standards to permit service on a Times string correspondent residing in Alabama, and on the Secretary of State under the Alabama Substituted Service Statute² (R. 49–57).

¹ App. B of Petitioner's brief, p. 97.

² Title 7, § 199 (1), Code of Alabama. The Times has conceded throughout adequate notice and opportunity to defend.

After its demurrers had been overruled (R.108) the Times filed six separate pleas to the complaint (R. 99–105). Although truth regardless of motive is a complete defense to a libel suit in Alabama (see infra), the Times and its codefendants filed no plea of truth. Although privilege and fair comment are defenses in Alabama in appropriate circumstances (see infra), the Times and its co-defendants did not plead these defenses. At the conclusion of the trial a jury returned a verdict against all defendants for $500,000, and the trial court entered a judgment against all defendants in this amount.³ Petitioner does not assert here any due process defects in these trial proceedings, and does not attack the motives and conduct of the jury.

The Times filed a motion for new trial, which was overruled (R. 970); the petitioners in No. 40 filed motions for new trial, but allowed them to lapse (R. 984, 998, 1013, 1028).

The Alabama Supreme Court affirmed the judgment as to all defendants (R. 1180).

The Times complains in this Court: (1) The holdings of the Alabama courts that the publication was libelous per se and the jury verdict that it was "of and concerning" respondent abridged its guaranties under the 1st and 14th Amendments, and (2) it was not amenable to suit in Alabama.

I. Merits

Since the Times has told this Court that the whole libel rests on two discrepancies—mere "exaggerations or inaccuracies"⁴ in the course of an "impersonal"⁵ discussion "plainly" not meant as an attack on any individual,⁶ respondent will state this case.⁷

This lawsuit arose because of a wilful, deliberate and reckless attempt to portray in a full-page newspaper advertisement, for which the Times charged and was paid almost $5,000, rampant, vicious, terroristic and criminal police action in Montgomery, Alabama, to a nationwide public of 650,000. The goal was money-raising. Truth, accuracy and long-accepted standards of journalism were not criteria for the writing or publication of this advertisement. The defamatory matter (quoted R. 580–81) describes criminal police action because some college students innocently sang "My Country 'Tis of Thee" from the Alabama State Capitol steps. The innocent singers were expelled from school; police ringed their campus by truckloads armed with shotguns and tear gas;⁸ and their dining hall was padlocked to starve the students into submission. All statements charge violation of the students' rights.

The Times is not candid when it tells this Court (Brief p. 7) that "the only part" of the foregoing statement "that Respondent thought implied a reference to him was the assertion about 'truckloads of police.' " Respondent made entirely clear that he considered the padlocking charge—and all other charges except expulsion—as applicable to him as well (R. 716). The Times is also absolutely inaccurate when it tells this Court that respondent's evidence "consisted mainly" (Brief p. 7) of a story by Sitton and a report by McKee. Respondent's evidence also included the Times' answers to interrogatories; respondent's own testimony, and that of his numerous witnesses; the testimony of all of the Times' trial witnesses; the statements and judicial admissions of its attorneys; and the testimony of John Murray who testified for the individual petitioners.

³ Of course, this joint judgment is not collectible more than once. The facts giving rise to liability of petitioners in No. 40 will be related in a separate brief.

⁴ Brief, p. 33.

⁵ Brief, p. 32.

⁶ Ibid.

⁷ Respondent, accordingly, will not dignify beyond this comment the "statement" contained in the briefs of the friends of the Times. They are literally second editions of the advertisement and do not even purport to be confined to accurate summaries of the record.

The American Civil Liberties Union Brief, for example, draws most of its statement from newspaper articles, offered by the Times on its motion for new trial, and excluded below. The correctness and propriety of the ruling are not challenged. The brief simply cites the material as evidence anyway. Such practice presumably fosters the "fair trials" to which the organization is "devoted" (Brief, pp. 1 and 2). The other amici briefs are consumed with unrelated cases, entirely outside the record, and with inaccurate and incomplete characterizations of and quotations from a scant fraction of the testimony in this case.

⁸ The Times apparently hopes to de-emphasize the ad's false allegations that the police were armed with shotguns and tear gas. It describes the ad as speaking of "truckloads of armed police …" (Brief, pp. 5 and 62. See also p. 8).

⁹ The Times argues here, remarkable to say, that the jury should have disregarded Aaronson's testimony, because another witness, Redding, was not interrogated on the point (Brief, p. 17).

The advertisement in another paragraph charges that the perpetrators of the foregoing alleged barbarisms were the same persons who had intimidated Martin Luther King; bombed his home; assaulted his person; and arrested him. All statements charge criminal conduct. Although the Times' brief tells this Court that the pronoun "they" does not point to respondent, and that such a jury finding is "absurd" (Brief p. 33), the jury was able to make the connection from the Times' own witness, Gershon Aaronson. He conceded that the word "they" as it appeared repeatedly in the quotation in the ad "refers to the same persons" (R. 745).⁹ Accordingly, the same police and the same police commissioner committed or condoned these alleged acts. And a jury unanimously agreed with Aaronson.

In a vain attempt to transfer these devastating statements from the constitutionally unprotected area of socially useless libel, where they belong, to the arena of constitutionally protected speech, where they obviously have no place, the Times and its friends employ various soothing phrases to describe the advertisement. It is called "political expression" and "political criticism" (pp. 29 and 30) of "public men" (p. 41); "the daily dialogue of politics" (p. 50); "a critique of government as such"; "criticism of official conduct" and "of the government" (pp. 30 and passim); "the most impersonal denunciation of an agency of government" (p. 50); a "recital of grievances and protests against claimed abuse dealing squarely with the major issue of our time" (pp. 31 and 57); "an expression which is merely wrong in fact with denigrating implications" (p. 54); an "appeal for political and social change" (A.C.L.U. brief, p.13); a "critique of attitude and method, a value judgment and opinion" (A.C.L.U. brief, p. 29).

But the ordinary, unsophisticated reader of this ad was bound to draw the plain meaning that such shocking conditions were the responsibility of those charged with the administration of the Montgomery Police Department—respondent and the other two city commissioners. Any other conclusion is impossible. The Times itself can suggest no other reference, except to the police generally, and police are under the direct control and supervision of respondent. Indeed, the Times brief (p. 44) characterizes the ad as "criticism of an elected political official …" and observes that this official should be hardy enough to take it without suing for libel.

A description of such conduct, at war with basic concepts of decency and lawful government, inevitably evokes contempt, indignation, and ridicule for the person charged with the administration of police activities in Montgomery. And obviously this was the precise intent of the authors of the advertisement. One of them, John Murray, so testified.¹⁰

Significantly, none of the Times' witnesses, and none of the petitioners in No. 40, all of whom testified, presented any evidence designed to show that the statements from the ad were true. Certainly, the individual petitioners in No. 40, two of whom lived in Montgomery, had no reason to withhold testimony harmful to respondent.

The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the testimony of a newspaper editor (R. 602, et seq.); a real estate and insurance man (R. 613, et seq.); the sales manager of a men's clothing store (R. 634, et seq.); a food equipment man (R. 644, et seq.); a service station operator (R. 649, et seq.); and the operator of a truck line for whom respondent had formerly worked (R. 662, et seq.). Each of these witnesses stated that he associated the statements with respondent, and that if he had believed the statements to be true, he would have considered such conduct reprehensible in the extreme.¹¹

¹⁰ "Q. (After reading the first paragraph quoted in the complaint) Was that the way that paragraph was when you first got it with the memorandum or did you give it that added touch for appeal?

"A. Well, it would be a little difficult at this time to recall the exact wording in the memorandum but the sense of what was in the memorandum was certainly the same as what is in here. We may have phrased it a little differently here and there.

"Q. I see. Your purpose was to rev it up a little bit to get money, I take it.

"A. Well, our purpose was to get money and to make the ad as—to project it in the most appealing form from the material we were getting.

"Q. Whether it was accurate or not really didn't make much difference, did it?

"A. Well, that did not enter the—it did not enter into consideration at all except we took it for granted that it was accurate—we took it for granted that it was accurate—they were accurate—and if they hadn't been—I mean we would have stopped to question it. I mean we would have stopped to question it—We had every reason to believe it" (R. 814–815).

¹¹ One stated, for example: "I don't think there is any question about what I would decide. I think I would decide that we probably had a young Gestapo in Montgomery" (R. 646).

¹² For example, Blackwell testified (R. 619): "He called me into his office and showed me this ad and at that time I indicated that I had seen the ad before but I don't remember just where and under what circumstances …"

Price testified: " … I saw copies of the two paragraphs myself prior to that time" (R. 648).

Respondent's counsel himself asked Parker whether he had seen the ad "before in my office" (R. 649) but not whether this was the first occasion; and counsel for the Times did not cross-examine on the point, presumably because its counsel had also talked to Parker before the trial (R. 651).

Unless the Times is asking this Court to assume the functions of a jury and to weigh the credibility of this relevant testimony, nothing could be more irrelevant than the time and place of the witnesses' first inspection of the ad. Even so, the Times has had to adjust the testimony to make its dubious point,¹² and it seems to forget that all of its witnesses were its own employees.

Undoubtedly the demonstrable falsity of the statements prevented pleas of truth or privilege or fair comment. Indeed, the Times published a retraction of the same paragraphs for Governor Patterson on May 16, 1960 (R. 596 and 1958–1961):

"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 Times asked its Montgomery string correspondent, McKee, for an investigation. On April 14, 1960, five days before suit was filed, McKee advised that the statements in the first quoted paragraph of the ad were false; and that King had been arrested twice by the Montgomery police for loitering and speeding and twice by the Sheriff's office for violation of the State boycott law and on charge of income tax falsification—a charge on which he was subsequently acquitted. Nevertheless, the Times, instead of retracting, wrote respondent that with the exception of the padlocking statement the rest of the quoted material was "substantially correct" (R. 589).

Later the Times directed another investigation by its regional correspondent, Claude Sitton. While the Times now speaks in this Court of "discrepancies" and "inaccuracies" in two instances, Sitton reported on May 4, 1960, that the first quoted paragraph of the advertisement "appears to be virtually without any foundation" (R. 594). There was no suggestion of involvement of respondent or any other city commissioner, or public employee under their charge, in the matters in the second quoted paragraph.

The Times then retracted for Governor Patterson, but not for respondent. The Times attempted to explain its inconsistency:

"The defendant … 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).

When confronted with this answer to interrogatories, Harding Bancroft, then secretary of The New York Times, could give no reason for the different treatment of Governor Patterson and respondent. They were "on a par." But there was a retraction for Patterson and not for respondent (R. 779).¹³

Undisputed trial testimony showed that respondent and the other commissioners and the Montgomery police had nothing to do with the King bombings; that a city detective had helped dismantle a live bomb which had been thrown on King's front porch (R. 685); and that the department had exerted extraordinary efforts to apprehend the persons responsible (R. 686–687). The occurrence of this event before respondent took office simply compounds the libelous nature of this advertisement which seeks to portray such matters as current actions which "they" took. The ordinary reader, chronologically unsophisticated, would clearly associate the acts with the current city government.

Another police officer testified without contradiction that no one had assaulted King when he had been arrested for loitering outside the courtroom (R. 692–693).

Frank Stewart, State Superintendent of Education, testified without contradiction that students had not been expelled from school for singing on the capitol steps (R. 700).

¹³ The Times brief, in its lengthy attempt to explain its inconsistency (pp. 21–22), presents an incomplete and inaccurate summary of Bancroft's testimony. It omits the following (R. 779):

"Q. Is there anything contained in this sentence in the Interrogatories that I just read to you which differentiates in any manner the position of Governor Patterson in his suit with Commissioner Sullivan in the present suit?

"A. As I read the thing, the answer is no.

"Q. They are put on a par, aren't they, Governor Patterson and this Plaintiff?

"A. Yes.

"Q. But there was a retraction for Governor Patterson and there was no retraction for this Plaintiff. That is correct, isn't it?

"A. That is correct."

The uncontroverted testimony of falsity was so overwhelming that counsel for the Times repeatedly brought out from witnesses that the statements quoted from the ad were not true. Moreover, he stated that truth was not in issue in the case because it had not been pleaded (A compendium of counsel's statements is in Appendix B of the brief in opposition, pp. 48–52). Counsel would not and could not have made such statements if the quoted portions of the ad had been true or if they had contained only a few "discrepancies" or "exaggerations."

Undeterred, however, in the teeth of these judicial admissions, Harding Bancroft maintained to the end an equivocal position about the correctness of the ad, with the exception of the padlocking statement.¹⁴ The Times' brief, on the contrary, candidly recites (pp. 62–65) a chronicle of the ad's falsities in addition to the padlocking statement.

Because of this testimony, when the Times six months before had retracted the same statements on the basis of the same investigation as "errors and misstatements" (R. 595–596, 1958–1961), the court below characterized Bancroft's performance as "cavalier ignoring of the falsity of the advertisement" which surely impressed the jury "with the bad faith of the Times, and its maliciousness inferable therefrom" (R. 1178). The Times is absolutely incorrect when it argues that this statement of the Court was based upon the selected portion of Bancroft's testimony excerpted on pages 21 and 22 of its brief.

Sullivan himself testified that the matters contained in the ad were false (R. 705–709); that the statements reflected "upon my ability and integrity, and certainly it has been established here that they are not true" (R. 713).

The bombing statement "referred to me and to the Police Department and the City Commissioners" (R. 718). Similarly, the other matters contained in the second quoted paragraph of the ad related to him "by virtue of being Police Commissioner and Commissioner of Public Affairs."

When asked on cross-examination whether he felt that the ad had a "direct personal reference" to him, his answer was, and it is the simple answer which any normal reader of the ad would give:

"It is my feeling that it reflects not only on me but on the other Commissioners and the community. … When it describes police action, certainly I feel it reflects on me as an individual" (R. 724).

Moreover:

"I have endeavored to try to earn a good reputation and that's why I resent very much the statements contained in this ad which are completely false and untrue" (R. 722).

The circumstances under which this ad was cleared for publication show a striking departure from the Times' usual meticulous screening process. So that it will print only what is "fit to print," the Times has codified an elaborate set of "advertising acceptability standards" (R. 597–601), designed "to exclude misleading, inaccurate, and fraudulent advertisements and unfair competitive statements in advertising. The chief purpose of this policy of The Times is to protect the reader and to maintain the high standards of decency and dignity in its advertising columns which The Times has developed over the years."

¹⁴ When asked whether the Times took the position that the ad's statements, with this exception, were "substantially correct," Bancroft first said: "I think it is a pretty hard question to answer" (R. 781). Then, the Times … "doesn't know anything more than what is set forth in these two responses which our stringer and correspondent there, which are annexed to the Answers to the Interrogatories and we don't have any additional knowledge to that" (R. 782). Next: "I really think I have to answer the question by saying I don't know" (R. 782). Then: "[I]t is awfully difficult to define what The Times thinks," but The Times' lawyers had seemed to indicate on April 15, 1960, that the statements were substantially correct (R. 784). He concluded (R. 785): "I find it terribly difficult to be able to say that The Times, as such, believes something is true or is not true. Now, all I can tell you is what the sources of The Times' knowledge are, and the sources are The Times' knowledge—the complete sources as far as I know, are the two annexes attached to the Answers to the Interrogatories. Now, if you asked me would I use the words 'substantially correct,' now, I think I probably would, yes. The tenor of the content, the material of those two paragraphs in the ad which have been frequently read here are not substantially incorrect. They are substantially correct. Now, what sort of words I can use to give you an answer that would satisfy you, I don't know."

To be as charitable as possible, it is remarkable that no person connected with The Times investigated charges that as part of "a wave of terror," public officials in Montgomery, because students sang "My Country 'Tis of Thee" from the Capitol steps, expelled the students from school; ringed their campus with truckloads of police armed with shotguns and tear gas; padlocked dining halls to starve them into submission; and thereby maintained continuity with earlier days in which they had bombed King's home, assaulted his person, and arrested him on baseless charges.

Over sixty names appeared on the ad; none of these persons was contacted. A regional correspondent in Atlanta, who the Times admits had written news reports about racial difficulties in Montgomery, was not questioned. The Times had a string correspondent in Montgomery. It directed him to give an immediate report on the demand for retraction. But he was not asked for prior information or investigation.

In its answer to interrogatories, the Times specified sixteen contemporaneous news stories of its own as "relating to certain of the events or occurrences referred to in the advertisement"(R. 586). Aaronson, Redding, and Bancroft—the three Times witnesses—had never bothered to look at any of this news material before publishing the ad.

Aaronson, an employee on the national advertising staff, who first received the ad, testified that he did not read it (R. 741), but simply "scanned it very hurriedly" (R. 742).

Because he knew nothing which would lead him to believe that these monstrous statements were false (R. 758), Vincent Redding, head of the Advertising Acceptability Department, did not check with any of the signers of the ad; or with the regional correspondent in Atlanta; or with the string correspondent in Montgomery; or with the sixteen newspaper stories on file in his office (R. 763–765):

"Q. Mr. Redding, wouldn't it be a fair statement to say that you really didn't check this ad at all for accuracy?"

"A. That's a fair statement, yes" (R. 765).

One wonders whether the performance of Messrs. Aaronson, Redding and Bancroft inspired the American Civil Liberties Union comment that the Times had suffered "liability without fault" (Brief, p. 26), and the Washington Post evaluation that " … the undisputed record facts disclose that the advertisement was published under circumstances which, by no stretch of the imagination could be characterized as anything other than complete good faith" (Brief, p. 6).

Testimony of John Murray, one of the authors of the ad, and erstwhile Hollywood "scenarist" and Broadway lyricist (R. 815), describing the manner in which the ad was composed, has been quoted previously (Footnote 10, supra).

Thus, this "appealing" congeries of monstrous and now undefended falsehoods was sent to The New York Times. Upon payment of almost five thousand dollars, it was published without any investigation as a full-page advertisement in The New York Times of March 29, 1960. Six hundred and fifty thousand copies of it circulated to the nation as part of "All the news that's fit to print." And its purveyors sat back to await the financial return on their investment in "free speech".

II. Jurisdiction

General appearance Petitioner, by moving to dismiss the action because the Alabama court was said to have no jurisdiction of the subject matter, made a general appearance in this case and thereby consented to the jurisdiction of the Alabama courts over its corporate person. This was the holding of both courts below. In addition, the trial court held that by bringing a mandamus action in the Supreme Court of Alabama unrelated to questions of personal jurisdiction, the Times had compounded its general appearance (R. 49–51). The holdings below, as will be demonstrated, accord with Alabama cases as well as those in a majority of the states.

The Times calls this general appearance "involuntary" (Brief, p. 75). But the Times in its brief in the Alabama Supreme Court (p. 54) said:

"Accordingly, while the motion made it clear that the only grounds for the motion were the defects in the mode of service, the prayer asserted the consequences of these defects—a lack of jurisdiction not only over the person but also over the subject matter."

And the Times still makes the subject matter argument in this Court (Brief, p. 73):

"Hence a contention that the statute is inapplicable or invalid as applied goes, in this sense, to jurisdiction of the cause as well as jurisdiction of the person."

Validity of service of process on The New York Times The courts below held that service on the string correspondent, McKee, and on the Secretary of State were valid. The trial court held that the Times had been sued on a cause of action "incident to" its business in Alabama (R.55); and the "manifold contacts which The Times maintains with the State of Alabama" make it amenable to this process and suit in the Alabama courts, commenced by service on McKee and on the Secretary of State, "regardless of its general appearance" (R. 51). The trial court found:

" … an extensive and continuous course of Alabama business activity—news gathering; solicitation of advertising; circulation of newspapers and other products. These systematic business dealings in Alabama give The Times substantial contact with the State of Alabama, considerably in excess of the minimal contacts required by the Supreme Court decisions. … The Times does business in Alabama" (R. 56–57).

The Alabama Supreme Court affirmed on this point, after extensive findings regarding the business activities of the Times in Alabama (R. 1140–1147). It adopted, as had the trial court, the test of Consolidated Cosmetics v. D-A Publishing Company, 186 F. 2d 906, 908 (7th Cir. 1951):

"The functions of a magazine publishing company, obviously, include gathering material to be printed, obtaining advertisers and subscribers, printing, selling and delivering the magazines for sale. Each of these, we think, constitutes an essential factor of the magazine publication business. Consequently if a non-resident corporation sees fit to perform any one of those essential functions in a given jurisdiction, it necessarily follows that it is conducting its activities in such a manner as to be subject to jurisdiction."

The court below concluded (R. 1149–1150):

"The evidence shows that The Times sent its papers into Alabama, with its carrier as its agent, freight prepaid, with title passing on delivery to the consignee. See Tit. 57, Sec. 25, Code of Alabama 1940; 2 Williston on Sales, Sec. 279 (b), p. 90. Thence the issue went to newsstands for sale to the public in Alabama, in accordance with a long standing business practice.

"The Times or its wholly owned advertising subsidiary, on several occasions, had agents in Alabama for substantial periods of time soliciting, and procuring in substantial amounts advertising to appear in The Times.

"Furthermore, upon the receipt of the letter from the plaintiff demanding a retraction of the matter appearing in the advertisement, The Times had its string correspondent in Montgomery, Mr. McKee, investigate the truthfulness of the assertions in the advertisement. The fact that Mr. McKee was not devoting his full time to the service of The Times is 'without constitutional significance.' Scripto, Inc. v. Carson, Sheriff, et al., 362 U.S. 207."

Moreover, the court below found (R. 1151):

"In the present case the evidence shows that the publishing of advertisements was a substantial part of the business of The Times, and its newspapers were regularly sent into Alabama. Advertising was solicited in Alabama. Its correspondent McKee was called upon by The Times to investigate the truthfulness or falsity of the matters contained in the advertisement after the letter from the plaintiff. The acts therefore disclose not only certain general conditions with reference to newspaper publishing, but also specific acts directly connected with, and directly incident to the business of The Times done in Alabama."

The exhaustive findings of fact contained in the opinions of both Alabama courts are fully substantiated in the record, and are not challenged in the Times Brief. In a qualitative sense, the test of International Shoe Co. v. Washington, 326 U.S. 310, 319–320, these decisions below were clearly correct. The Times from 1956 through April, 1960, conducted an extensive and continuous course of business activity in Alabama. The annual revenue was over twice as great as the $42,000 which this Court found sufficient to establish adequate Florida contacts in Scripto v. Carson, 362 U.S. 207.

SUMMARY OF ARGUMENT

I.

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

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

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

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

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

B. It is fantasy for petitioner to argue that the ad which falsely charged respondent, as police commissioner, with responsibility for the criminal and rampant "unprecedented wave of terror" is "the daily dialogue of politics" and mere "political criticism" and "political expression." If the Times prevails, any false statement about any public official comes within this protected category. The absolute immunity would cover false statements that the Secretary of State had given military secrets to the enemy; that the Secretary of the Treasury had embezzled public funds; that the Governor of a state poisoned his wife; that the head of the public health service polluted water with germs; that the mayor and city council are corrupt; that named judges confer favorable opinions on the highest bidder; and that a police commissioner conducted activities so barbaric as to constitute a wave of terror.

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

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

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

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

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

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

II.

It is patently frivolous for the Times to argue that no ordinary person of reasonable intelligence could read the advertisement in suit as referring to the Montgomery police commissioner. Certainly the jury is not required as a matter of law to hold that the ad is not of and concerning respondent. Its finding is entitled to all of the safeguards of the Seventh Amendment. Gallick v. B. & O. R. Co., 372 U.S. 108; Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226 at 242–243; and Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474. While the ad's reference is clear enough, the jury heard witnesses who associated respondent with its false allegations. Hope v. Hearst Consolidated Publications, 294 F. 2d 681 (2d Cir.), cert. denied 368 U.S. 956; Chagnon v. Union Leader Corp., 103 N. H. 426, 174 A. 2d 825, 831–832, cert. denied 369 U.S. 830.

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

III.

A. The courts below held that under Alabama practice the Times appeared generally in the action because it objected to jurisdiction of the subject matter as well as to jurisdiction of the person. This holding, which accords with the majority rule (25 A. L. R. 2d 835 and 31 A. L. R. 2d 258) is an adequate independent state ground as to jurisdiction over the Times which bars review of that question. Herb v. Pitcairn, 324 U.S. 117, 125–126; Murdock v. Memphis, 20 Wall. 590, 626; Fox Film Corporation v. Muller, 296 U.S. 207, 210; Minnesota v. National Tea Company, 309 U.S. 551, 556–557. A state court's interpretation of its own law is binding here. Fox River Paper Company v. Railroad Commission, 274 U.S. 651, 655; Guaranty Trust Company v. Blodgett, 287 U.S. 509, 513; United Gas Pipeline Company v. Ideal Cement Company, 369 U.S. 134.

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

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

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

ARGUMENT

I. The Constitution confers no absolute immunity to defame public officials

The New York Times, perhaps the nation's most influential newspaper, stooped to circulate a paid advertisement to 650,000 readers—an advertisement which libeled respondent with violent, inflammatory, and devastating language. The Times knew that the charges were uninvestigated and reckless in the extreme. It failed to retract for respondent with subsequent knowledge of the falsity of the material in the advertisement. Yet it retracted as misleading and erroneous the same defamatory matter for another "on a par."

Petitioner was unable to plead truth; or fair comment; or privilege. Alabama provides these classic defenses so that the press may be free within the rubric of its libel laws.¹⁵ Since petitioner did not invoke these Alabama defenses, its belated attack on their constitutional adequacy is hollow and entirely academic. Nevertheless, the Alabama law of libel conforms to constitutional standards which this Court has repeatedly set and to the libel laws of most states. "Only in a minority of states is a public critic of Government even qualifiedly privileged where his facts are wrong."¹⁶ Moreover, "[t]he majority of American courts do not give a privilege to a communication of untrue facts, or to a comment based on them, even though due care was exercised in checking their accuracy."¹⁷ A fortiori there is no such privilege where there was no check whatever. (See Aaronson, Redding and Bancroft testimony).

The Times' trial attorneys conceded that truth was not in issue; and made plain to the jury that the material was so patently false as to be unbelievable in the community. No defendant attempted to introduce testimony to substantiate the charges. The Times does not claim that it was denied a fair and impartial trial of the libel action. The petition raises no question of procedural due process.

"This cause was tried in the courts of [the state] in accordance with regular court procedure applicable to such cases. The facts were submitted to a jury as provided by the constitution and laws of that State, and in harmony with the traditions of the people of this nation. Under these circumstances, no proper interpretation of the words 'due process of law' contained in the Fourteenth Amendment can justify the conclusion that appellant has been deprived of its property contrary to that 'due process.' "¹⁸

¹⁵ Substantial truth in all material respects is a complete defense if specially pleaded. Ferdon v. Dickens, 161 Ala. 181, 49 So. 888; Kirkpatrick v. Journal Publishing Company, 210 Ala. 10, 97 So. 58; Alabama Ride Company v. Vance, 235 Ala. 263, 178 So. 438.

Privilege and fair comment, too, are defenses, if specially pleaded. Ferdon v. Dickens, supra; W. T. Grant v. Smith, 220 Ala. 377, 125 So. 393.

A retraction completely eliminates punitive damages. Title 7, Sections 913–917, Alabama Code (App. A. p. 67).

¹⁶ Chief Justice Warren, dissenting in Barr v. Matteo, 360 U.S. 564, 585.

¹⁷ Developments in the Law—Defamation, 69 Harvard L. Rev. 877, 927 (1956).

¹⁸ United Gas Public Service Company v. Texas, 303 U.S. 123, 153, Black J. concurring.

Libelous utterances have no constitutional protection The Times does not seek review of a federal question—substantial or otherwise. For libelous utterances have never been protected by the Federal Constitution. Throughout its entire history, this Court has never held that private damage suits for common law libel in state courts involved constitutional questions.¹⁹ Respondent vigorously disputes the Times' assertion that this Court is wrong in its history (Brief, pp. 44–48), and that the constitutional pronouncements in those cases are mere "adjectives" and statements "made in passing" (Brief, p. 40). Respondent is confident that this Court meant what it said in Roth v. U.S., 354 U.S. 476, 483, for example:

"In light of this history it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech (citation)."

Again in Konigsberg this Court pronounced that it "has consistently recognized [that] … certain forms of speech [have] been considered outside the scope of constitutional protection." 366 U.S. 36, 50, citing Beauharnais and Roth.

Moreover, commercial advertisements are not constitutionally protected as speech and press, since there is no real restraint on speech and press where commercial activity is involved. Valentine v. Chrestensen, 316 U.S. 52, 54; Breard v. City of Alexandria, 341 U.S. 622, 643.²⁰ The Times has termed the citation of these cases "frivolous" and "cynical" (Brief, pp. 31 and 57). But its analysis of Valentine v. Chrestensen is incomplete—the other side of the handbill protested a city department's refusal of wharfage facilities. And the Times itself classified the ad as a commercial one, and submitted it to the Advertising Acceptability Department and to the standards of censorship which that department is supposed to impose. The Times charged the regular commercial advertising rate of almost five thousand dollars, scarcely as "an important method of promoting some equality of practical enjoyment of the benefits the First Amendment was intended to secure" (Brief, p. 58).

This Court last term in Abernathy v. Patterson, 368 U.S. 986, declined to review a decision of the Court of Appeals, 295 F. 2d 452, 456–457, which had held this very publication unprotected constitutionally as a libelous utterance. The Court of Appeals stated that the only constitutional claim could be one relating to the conduct of the trial.

In 1804, Thomas Jefferson wrote to Abigail Adams, referring to his condemnation of the Sedition Act of 1798:

"Nor does the opinion of the unconstitutionality and consequent nullity of that law remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the U.S. The power to do that is fully possessed by the several state legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so."²¹

Again in his second inaugural address on March 4, 1805, Jefferson said:

"No inference is here intended that the laws provided by the States against false and defamatory publications should not be enforced; he who has time renders a service to public morals and public tranquility in reforming these abuses by the salutary coercions of the law; but the experiment is noted to prove that, since truth and reason have maintained their ground against false opinions in league with false facts, the press, confined to truth, needs no other legal restraint; the public judgment will correct false reasonings and opinions on a full hearing of all parties; and no other definite line can be drawn between the inestimable liberty of the press and its demoralizing licentiousness."²²

A century and a quarter later, Justices Holmes and Brandeis joined Chief Justice Hughes, who spoke for the Court in Near v. Minnesota, 283 U.S. 697, 715:

¹⁹ Beauharnais v. Illinois, 343 U.S. 250; Near v. Minnesota, 283 U.S. 697, 715; Konigsberg v. State Bar of California, 366 U.S. 36, 49–50; Roth v. U.S., 354 U.S. 476, 483; Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572.

²⁰ Lower Federal court decisions accord. Pollak v. Public Utilities Commission, 191 F. 2d 450, 457 (D. C. Cir. 1951); E.F. Drew & Co. v. Federal Trade Commission, 235 F. 2d 735, 740 (2d Cir. 1956), cert. den. 352 U.S. 969.

²¹ Quoted in Dennis v. U.S., 341 U.S. 494, 522, n. 4, and in Beauharnais v. Illinois, 343 U.S. 250, 254, n. 4.

²² I Messages and Papers of the Presidents, Joint Committee on Printing, 52nd Congress, pp. 366, 369 (1897).

"But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions."

Twenty years thereafter, this Court upheld an Illinois criminal group libel statute which had been applied to one who had distributed a pamphlet charging that Negroes as a class were rapists, robbers, carriers of knives and guns, and users of marijuana. Beauharnais v. Illinois, 343 U.S. 250, 266:

"Libelous utterances, not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' "

Since Beauharnais, as the table contained in Appendix A of respondent's brief in opposition shows, this Court has declined to review forty-four libel cases coming from the state and federal courts. It has reviewed three. Two of them²³ resulted in a holding that certain lower echelon federal executive personnel had an absolute privilege. The third²⁴ held that a radio and television station, which gave equal time to all political candidates because of the dictates of § 315 of the Federal Communications Act, was absolutely immune, by virtue of the same act, from state libel suits growing out of any such broadcasts.

The Times and its powerful corporate newspaper friends obviously realize that history and precedent support the holding below that this libelous advertisement is not constitutionally protected. They assert, therefore, at least for themselves and others who conduct the business of mass communication, an absolute privilege to defame all public officials—even in paid advertisements; even when the defamation renders the classic defenses of truth, fair comment and privilege unavailable; even when there is no retraction to show good faith. They urge this Court to write such a fancied immunity into the constitution—at least for themselves, for they are silent on whether this new constitutional protection is to extend to ordinary speakers and writers. The obvious consequence of such a holding would be the confiscation of the rights of those defamed to assert their traditional causes of action for defamation in state courts.

The Times attempts to cloak this defamatory advertisement with constitutional respectability. The ad is called "the daily dialogue of politics" and mere "political criticism" and "political expression." Surely desperation leads the Times so to characterize a charge that respondent, as police commissioner, was responsible for the criminal and rampant "unprecedented wave of terror" which this ad sought to portray falsely.

If the Times prevails, then any statement about any public official becomes "the daily dialogue of politics," "political expression and criticism" and "a critique of attitude and method, a value judgment and opinion." The absolute immunity would cover false statements that the Secretary of State had given military secrets to the enemy; that the Secretary of the Treasury had embezzled public funds; that the Governor of a state poisoned his wife; that the head of the public health service polluted water with germs; that the mayor and city council are corrupt; that named judges confer favorable opinions on the highest bidder; and that a police commissioner conducted activities so barbaric as to constitute a wave of terror. If a state court indulges in "mere labels" without constitutional significance when it holds such utterances libelous, and if such defamatory statements about "public men" are to be protected as legitimate and socially useful speech, then the Times and its friends urge this Court to "convert the constitutional Bill of Rights into a suicide pact."²⁵

²³ Barr v. Matteo, 360 U.S. 564; and Howard v. Lyons, 360 U.S. 593.

²⁴ Farmers Union v. WDAY, Inc., 360 U.S. 525.

²⁵ Jackson, J. dissenting in Terminiello v. Chicago, 337 U.S. 1, 37.

The Times wrongly argues that Mr. Justice Frankfurter's caveat in Beauharnais was designed for such a purpose (Brief, p. 41). He examined the hypothetical dangers of permitting statutes which outlawed libels of political parties. Justice Frankfurter observed that such attempts would "raise quite different problems not now before us" (343 U.S. 250,264), and it was in this context that he observed that the doctrine of fair comment would come into play "since political parties, like public men, are, as it were, public property." The case at bar, too, presents far different problems.

Clearly, Congress and this Court did not find such a constitutional immunity, hence Section 315 and Farmers Union v. WDAY, 360 U.S. 525. The very reason for such Congressionally conferred immunity was the "widely recognized" existence of causes of action for libel by defamed candidates for public office "throughout the states" (360 U.S. 525 at 535). This Court found that Congress had given immunity because broadcasters would have too much difficulty determining whether a particular equal time broadcast was defamatory in terms of relevant state law. 360 U.S. 525 at 530. Surely this Court did not decide WDAY on an assumption that the Constitution already provided such immunity absent a "clear and present danger."

Beauharnais, 343 U.S. 250 at 266, disposes of petitioner's "clear and present danger" cases (pp. 13–15) involving criminal prosecutions for breach of peace, criminal syndicalism and contempt of court.²⁶ Indeed, the background of one of them, Pennekamp v. Florida, 328 U.S. 331, 348–349, sharply distinguishes these cases from the one at bar. This Court told Pennekamp that even those hardy judges described by petitioner could bring private suits for defamation in state courts. "For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants."²⁷

Pennekamp—editor of the Miami Herald—ignored this warning. Perhaps he assumed, as does the Times, that the official's remedy was "left at large," and that there was an absolute privilege to level not only fair but false and defamatory criticism at public officials. Pennekamp discove