“If, as Curtis’ counsel now claim, the arguments were, among other things, grossly improper and inflammatory, intemperate and inexcusable, appeals to passion and prejudice, corruptions of the evidence, completely unsupported by the evidence, and unsworn testimony of counsel, it is inconceivable to us that they would have delayed so long without raising the slightest hint of an objection.”
How later courts described this case
- “If, as Curtis’ counsel now claim, the arguments were, among other things, grossly improper and inflammatory, intemperate and inexcusable, appeals to passion and prejudice, corruptions of the evidence, completely unsupported by the evidence, and unsworn testimony of counsel, it is inconceivable to us that they would have delayed so long without raising the slightest hint of an objection.”
- new trial motion properly denied though new evidence demonstrated two of plaintiff’s witnesses testified falsely and strongly supported justification defense to alleged libelous article since defendant had not exercised reasonable diligence, evidence would merely tend to affect weight and credibility of testimony and evidence would not have changed verdict
Written by the judges who cited it.
The opinion
RIVES, Circuit Judge,
dissenting:
The majority undertakes to bolster its holding “that Curtis has clearly waived any right it may have had to challenge the verdict and judgment on any of the constitutional grounds asserted in Times.” 1
I.
As suggested in my earlier dissent, 2 that is not true as to the holding in Times that a state law of civil libel which sustains the imposition of extremely large awards of damages in libel actions may constitute a prior restraint on freedom of expression forbidden by the First and Fourteenth Amendments. New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 277, 278 , 84 S.Ct. 710 , 11 L.Ed.2d 686 .
The enormous amount of the verdict in the present case could not have been anticipated. Curtis raised the point seasonably as a ground for its first motion for new trial. 3
In ruling on that motion the district court recognized that: “As far as this Court can ascertain, the largest award ever sustained for punitive damages by the Appellate Courts was an award of $175,000.00 in the case of Reynolds v. Pegler, D.C., 123 F.Supp. 36 ; 2 Cir., 223 F.2d 429 .” 225 F.Supp. 916, at 919 . Nonetheless, after the plaintiff filed his remittitur, the district court entered judgment against Curtis for $400,000 punitive damages plus $60,000 general damages, or a total of $460,000. Since that time, Curtis has lost no opportunity to insist that the $460,000 award, if sustained, is so large as to constitute a prior restraint upon freedom of the press within the rule announced in the Times decision. On that issue, there is, I submit, no debatable question of waiver. For reasons expressed in my prior dissent, 4 I would rule with Curtis on that issue.
As to the punitive damage award, the section of the Georgia Code quoted in my earlier dissent 5 and the oral charge to the jury, 6 make clear that the very purpose of punitive damages is to act as a deterrent to future conduct, which, in libel cases, means a prior restraint on freedom of expression. When that deterrent or restraint assumes proportions of the jury’s verdict, $3,000,000, or even of the award made by the district court, $400,000,1 submit that it is forbidden by the First and Fourteenth Amendments. 7
The part of the Times opinion relating to prior restraints on freedom of expres *738 sion was certainly not “new law.” Nor was that part of the opinion limited to public officials. Clearly, I submit, whether Butts was a public official or not, the enormous award of damages must be set aside.
II.
The specific holding in Times, which had not theretofore been generally recognized, was that a State cannot under the First and Fourteenth Amendments award damages to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice” — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. It was that principle to which I referred in my earlier dissent, 8 when I said “it was not even enunciated by the counsel who petitioned for certiorari in the New York Times Co. decision.” 9 Now on petition for rehearing, counsel makes affidavit that: “The requirement of the New York Times case that general damages could not be awarded without the necessity of proof of actual malice on the part of the defendant was not specifically presented in the Alabama courts nor in the petition for certiorari to the United States Supreme Court.”
In order properly to object 10 to the district court’s instructions allowing recovery of general damages without proof of malice, and recovery of punitive damages on a definition of malice at variance with that prescribed in Times, counsel must have anticipated that specific holding of the Times decision.
Judge Morgan, the District Judge in the present case, recognized, at least impliedly, that Curtis had not waived that constitutional right by its failure to insist upon it at the trial, when, in denying the motion for new trial under Rule 60(b), Fed.R.Civ.P., he considered and ruled on the defense on its merits. Butts v. Curtis Publishing Co., N.D. Ga. 1964, 242 F.Supp. 390 .
Based largely on facts dehors the present record, the majority held that Curtis’ trial counsel had knowingly and intentionally waived the constitutional protections afforded by the Times case, by failing to raise them at the trial. In response to that holding, three of Curtis’ attorneys have filed with this Court their sworn affidavits. 11 Now the majority goes still further beyond the present record and considers another case shown by the records of this Court but of which Judge Morgan could not have taken judicial notice when he considered and ruled on Curtis’ section 60(b) motion. With deference, I submit that it is the function of this Court simply to review the ruling of the district court on the record before that court.
If, however, we are to resort to evidence out side the record and to bolster our judicial notice from records in other cases, those extraneous matters do not • impugn the integrity and veracity of Curtis’ trial counsel. It seems clear to me that, at the time of trial, counsel had no notice of the specific holding thereafter made in Times. It is impossible for me to believe that, if counsel had any such notice, they would have knowingly and intentionally waived the specific constitutional protection afforded by the Times case “in order to get the right to open and close the arguments,” as suggested in the majority opinion.
It is too much to hold counsel to the duty of anticipating the specific holding of Times, because of general assertions of First Amendment defenses in other cases, or even because of Mr. Justice *739 Black’s view that the First Amendment “ * * * intended that there should be no libel or defamation law in the United States under the United States Government, just absolutely none so far as I am concerned * * 12 The majority paints with such a broad brush as to require the assertion of a First Amendment defense in every libel or defamation case hereafter litigated.
With deference, I submit that it is the outworn sporting theory of justice 13 which leads the majority to convert this appeal into an unseemly trial of Curtis’ lawyers. The function of this Court is not to decide a contest, but to administer justice. Curtis, not its lawyers, stands mulcted in damages to the extent of $460,000 as the result of a trial conducted on a fundamentally and constitutionally deficient theory of law.
The resulting damage extends far beyond the monetary loss to Curtis. This Court’s refusal to consider and decide whether constitutional standards were observed in adjudging Curtis liable is a grave reflection upon the administration of justice itself. Permitting such a libel judgment to stand will cause “ * * * the pall of fear and timidity [to be] imposed upon those who would give voice to public criticism in an atmosphere in which the First Amendment freedoms cannot survive.” 14
A just determination requires this Court to consider and decide this appeal on its merits. 15 The altered situation created by the intervening decision of the Supreme Court makes that a compelling duty. 16
I, therefore, respectfully dissent.
. Pp. 726 and 728.
. Pp. 726 and 728.
. “That portion of the jury’s verdict awarding the plaintiff $3,000,000 punitive damages, violates and abridges and cannot be sustained without violating and abridging the right of freedom of speech and of the press guaranteed by the First and Fourteenth Amendments of the United States Constitution because:
<» * $
“(e) The amount of punitive damages, in the circumstances of this case, was so excessive, as to violate and abridge through excessiveness alone, the guarantees of free speech and press.” (Record, pp. 46, 47.)
. P. 728.
. Section 105-2002, Georgia Code Annotated.
. “The purpose of punitive damages is to deter the defendant from a repetition of the offense and is a warning to others not to commit a like offense. It is intended to protect the community and has an expression of ethical indignation, although the plaintiff receives the award.”
. See Bantam Books, Inc. v. Sullivan, 1963, 372 U.S. 58, 70 , 83 S.Ct. 631 , 9 L.Ed.2d 584 , cited in Times ( 376 U.S. at 278 , 84 S.Ct. at 725 ).
. P. 723.
. An opinion which I had reached from an examination of the petition and briefs on certiorari.
. “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Rule 51, Fed.R.Civ.P.
. Ethically permissible “when essential to the ends of justice.” A.B.A. Canons of Prof. Ethics No. 19.
. Quoted in footnote 3 to the majority opinion on rehearing.
. “Federal procedure is moving away from what Pound calls ‘the sporting theory of justice’, Wigmore the ‘instinct of giving the game fair play’, and Arthur Vanderbilt the theory of procedure as ‘a contest between two legal gladiators’. We are a Court ‘to secure the just * * * detemination of every action’. Rule 1, Federal Rules of Civil Procedure, 28 U.S.C.A.” Commissioner of Int.Rev. v. Chase Manhattan Bank, 5 Cir. 1958, 259 F.2d 231 , 238.
. New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 278 , 84 S.Ct. 710, 725 , 11 L.Ed.2d 686 .
. Hormel v. Helvering, 1941, 312 U.S. 552, 556, 557 , 61 S.Ct. 719 , 85 L.Ed. 1037 .
. The Peggy, 1801, 5 U.S. (1 Cranch) 103, 110 , 2 L.Ed. 49 ; Connor v. New York Times Co., 5 Cir. 1962, 310 F.2d 133, 135 , and cases there cited.