Petition — Early v. Palm Beach Newspapers, Inc.

|" Supreme Court, U. 2

FILED

|

} MAY 19 1978

DAK, JR., CLERK

IN. THE apo.

Supreme Court of the United States

OcTOBER ‘TERM, 1977

No 97-1649

Luoyp F. Earry, Petitioner

v.

PaLM BeacH Newspapers, INc., Grecory E. Favre,

Rosert H. Kirkpatrick, Jane Arps and Tom Sawyer,

Respondents

—

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL FOR THE

STATE OF FLORIDA, FOURTH JUDICIAL DISTRICT

-_-———_—_—__—

DonaLp E. SANTARELLI

Davin H. Martin

2033 M Street, N.W., Suite 700

Washington, D.C. 20036

202/466-6800

FarIsH & FARISH

JoserpH D. Farisu, Jr.

Fk’, KENDALL SLINKMAN

316 First Street

West Palm Beach, Florida 33402

305/659-3500

Attorneys for Petitioner

Dated: May 20, 1978

Press or Brson S. ADAMS PRINTING, INC., WASHINGTON, D. C.

oa eee

TABLE OF CONTENTS

Page

Opinions, OrnDERS AND JUDGMENT BELOW ............. 1

DE Sceves wedidhunesecnéeatndeddeasenedss 2

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ConstituTiIonAL Provisions INVOLVED .............+. 2

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Reasons ror GRANTING THE WRIT ................-. 6

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ii TABLE OF AUTHORITIES

Page

Cases:

Cantrell v. Forest Publishing Co., 419 U.S. 245, 95

es Ge CHE a Cha Sed s Fa ee Ta neds cab o% obs 10, 11

Clay Communications v. Sprouse, 211 S.E.2d 674 (W.

Va. Sup. Ct. 1974), cert. denied, 423 U.S. 882, 96

a BS RE apes ec aan ee 11

Curtiss Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct.

Pe GEE cuces céducndc Geun ue eebenemeuiaees 11

Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct.

Be SE dtdus chsnds cb oeid obi chevabevighas< 12

Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct.

SD thidbantiudaraccse coeskeneeksan 7, 9,12

Ginzberg v. Goldwater, 414 F.2d 324 (2d Cir. 1969),

cert. denied, 396 U.S. 1049, 90 S.Ct. 701 (1970) .. 11

New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct.

ff RP ee pee 2, 3, 6, 7, 9, 10, 11, 13, 15, 16

Ragano v. Times, Inc., 302 F. Supp. 1005 (D.C. Fla.

1969), affirmed, 427 F.2d 219 (5th Cir. 1970) .... 11

Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811

DUE 04.0 on (av erneeeunnd eunaes Venées ane 7, 8, 10, 11

St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323

DD -ceeahtidee cha dadbentevivses catechins 8, 9,12

Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736 (1940) 7

Varnish v. Best Median Publishing Co., 405 F.2d 608

(2d Cir. 1968), cert. denied, 394 U.S. 987, 89 S.Ct.

Sy SE de eg nknlenclduwids decd adedshcoces 11

ConstiITuTIONAL Provisions INVOLVED:

U.S. Constitution, Amendment I ................... 2

U.S. Constitution, Amendment XIV, Section 1 ...... 3, 16

/

IN THE

Supreme Court of the Rnited States

OcToBeR TERM, 1977

No.

Luoyp F. Earuy, Petitioner

Vv.

Patm BeacH Newspapers, Inc., Grecory E. Favre,

Rosert H. Kirkpatrick, JANE ARPE and ToM SAWYER,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL FOR THE

STATE OF FLORIDA, FOURTH JUDICIAL DISTRICT

Lloyd F. Early, by and through his counsel, hereby

petitions for a writ of certiorari to review the divided

decision below of the Supreme Court of the State of

Florida which leaves standing a reversal by the Florida

District Court of Appeal, Fourth District, of a jury

verdict and judgment favorable to Petitioner.

OPINIONS, ORDERS AND JUDGMENT BELOW

The order of the Supreme Court of the State of

Florida declining to entertain jurisdicticn either by

way of appeal or on petition for a writ of certiorari,

including the dissenting opinion thereto (App. A,

infra), is not yet reported. Similarly, the Florida Su-

preme Court’s order denying rehearing (App. B, in-

fra) is unreported. The per curiam opinion of the

Florida District Court of Appeal, Fourth District, re-

versing a jury verdict in Petitioner’s favor (App. C,

infra), is reported at 334 So.2d 50 (Fla. 4 DCA 1976).

That court’s denial of rehearing (App. D, infra) is

unreported. The judgment for Petitioner entered in the

Circuit Court of the 17th Judicial Circuit of Florida,

Broward County (App. E, infra), is not reported; nor

is the trial court’s memorandum decision denying de-

fendants’ several post-trial motions (App. F, infra).

JURISDICTION

The order of the Supreme Court of Florida issued

on May 31, 1977 (App. A, infra). On December 22,

1977, the Florida Supreme Court denied a petition for

rehearing (App. B, infra). On March 14, 1978, Mr.

Justice Powell extended the time for filing the present

petition for a writ of certiorari to and including May

20, 1978. The jurisdiction of this Court is invoked under

28 U.S.C. 1257(3).

QUESTION PRESENTED

Whether the reversal below of a jury verdict in Pe-

titioner’s favor was premised on a misapplication of the

standard announced by this Court in New York Times

v. Sullivan, 376 U.S. 254, 84 8.Ct. 710 (1964), so as to

unconstitutionally deprive Petitioner of due process

of law and the judgment he had properly obtained pur-

suant to a jury verdict in the trial court.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment 1:

Congress shall make no law . . . abridging the

freedom of speech, or of the press;....

ate th tt lL ha eT

3

U.S. Constitution, Amendment XTV, See. 1:

. .. Nor shall any state a ary any person of

life, liberty or property, without due process of

Per

STATEMENT

On August 5, 1970, Lloyd F. Early instituted the

present action in the Circuit Court for Palm Beach

County, Florida, against Palm Beach Newspapers, Inc.

and four named reporters for one or another of the

defendant company’s three newspapers distributed

throughout the Palm Beach area. The gravamen

of the complaint was that over a period of some 14

months Respondents had persistently pursued a

malicious newspaper campaign designed to force the

removal of Petitioner from his elected position as

Superintendent of Schools for Palm Beach County,

Florida. Respondents admitted in print that ‘‘dispos-

ing of Lloyd Early is priority business’. Respondents

were charged with writing and publishing literally

hundreds of derogatory articles (including a number

of pejorative cartoons) which contained knowingly

false and defamatory information about plaintiff's

character, behavior, competence, actions and business

relationships, all done with malice and in reckless dis-

regard of the truth.

Following a reassignment of the case to the Circuit

Court for Broward County, Florida, the matter was,

by agreement of the parties, tried before a jury under

the review standard announced by this Court in New

York Times v. Sullivan, supra. The numerous news-

paper articles and cartoons in question were placed

into evidence, and substantial testimony was intro-

duced to support Petitioner’s assertion that Respond-

ents had intentionally, undertaken a campaign to de-

4

stroy public confidence in him as the Superintendent

of Schools, and had dogmatically pursued that objec-

tive by knowingly publishing false information in reck-

less disregard of the truth, as stated by the trial judge

in denying Respondents’ post trial motions (See App.

F, infra, p. 16a). After two weeks of trial, the court

thoroughly instructed the jury on the law of libel in

relevant part as follows:

... You are instructed that as a public official, if

you find by the evidence that any of these articles

about a public official are libelous[ ;] that the offi-

cial, the plaintiff, and [sic] if you find he has

proven by clear and convincing evidence that the

material was false and libelous, you must also prove

by clear and convicing evidence that the defend-

ants whom you may find against either published

the material with actual knowledge that the ma-

terial was false or published it with a reckless dis-

regard for its truth or falsity.

Reckless disregard, as the Courts have said,

reckless disregard for truth or falsity means the

defendants published the material with a high

awareness of [sic] it was probably false or they

had serious doubts about the truth of it when they

published it. [Trial Tr. 1964-65].

The jury returned a verdict in favor of Petitioner

in the amount of $950,000.00 compensatory damages,

$25,000.00 punitive damages against Respondent Kirk-

patrick and $25,000.00 punitive damages against Re-

spondent Favre (see App. E, infra). Respondents then

filed a series of post-trial motions seeking, alterna-

tively, a mistrial, a judgment notwithstanding the ver-

dict and a new trial. By order and memorandum deci-

sion issued on November 19, 1974, the trial court denied

all three requests, stating inter alia:

ee ee ee ee

Rew o

5

The Court further finds that the Plaintiff carried

his burden of proof under the New York Times

standard and proved his case by the clear and con-

vincing weight of the evidence. There is ample

evidence in the record from which the jury could

reasonably conclude that the Defendants clearl

engaged in a campaign to “‘get’’ the Plaintiff

There was sufficient and substantial evidence from

which a jury could reasonably conclude that many

of their articles were published knowing of their

falsity or with a high degree of awareness of their

probable falsity. [App. F, infra, p. 16a; emphasis

added }.

The Fourth District Court of Appeal of Florida re-

versed (App. C, infra). Acknowledging that ‘*most of

the articles and cartoons can fairly be described as

slanted, mean, vicious, and substantially below the level

of objectivity that one would expect of responsible

journalism”’ (id. at 13a), the appeals court nonetheless

absolved the Respondents of liability on the rationale

that the defamatory information was in the nature of

editorial opinions rather than factual reporting, and

accordingly was entitled to a ‘‘free press’’ protection

under the First Amendment of the Constitution re-

gardless of how purposefully false or misleading the

statements were (id. »t 9a, 13a). To support its conclu-

sion, the Florida District Court of Appeal selected ‘‘a

smattering of the several hundred derogatory articles

and cartoons’’ involved (id. at 13a), refused to recog-

nize their significance, and rationalized the false and

reckless materials on the grounds that they were either:

(a) ‘‘matters of opinion, not statements of fact’’ (1d.

at lla); (b) not as devastating an indictment of Peti-

tioner’s character when read in context as the language

used might imply (id.); (c) ‘‘caustic and pejorative”’

6

but with ‘‘a basis in fact and thus... not false’’ (id) ;

(d) false, but only as a result of ‘*defendants failure

to investigate’’ (id. at 12a); or (e) ‘‘in the category

of what the courts have chosen to call ‘rhetorical

hyperbole’ ”’ (td. at 13a).

Petitioner promptly petitioned for rehearing, argu-

ing, inter alia, that the District Court of Appeal had

failed to accord proper deference to the jury verdict,

had ignored substantial evidence in the record sup-

porting that verdict in reaching a contrary conclusion,

and had, moreover, misapplied the New York Times

y. Sullivan standard to overturn the verdict below. The

petition for rehearing was denied on June 2, 1976 (App.

D, infra). Thereafter, Petitioner sought review in the

Supreme Court of Florida either by way of appeal or

on petition for a writ of certiorari. On May 31, 1977,

the Florida Supreme Court declined to entertain ju-

risdiction (App. A, infra). A petition for rehearing was

timely filed by Petitioner, but this was also denied by

the Florida Supreme Court by order dated December

22, 1977 (App. B, infra).

Petitioner now seeks review by this Court in the

present petition for a writ of certiorari.

The reversal by the Fourth District Court of Appeal

of Florida of a jury verdict in Petitioner’s favor is

based on a misapplication of this Court’s decision in

New York Times v. Sullivan, supra, The Fourth Dis-

trict Court of Appeal’s decision is at variance with

both the letter and spirit of New York Times v. Sulli-

van, supra, and is at variance with the numerous fed-

eral and state libel cases that have since reaffirmed the

principles first announced therein. By exonerating the

eee Vee

=

7

Respondent newspapers and their reporters of respon-

sibility for the calculated destruction of Petitioner’s

career through a ‘‘slanted’’, ‘‘mean”’ and ‘‘vicious”’

media campaign ‘‘admittedly designed to bring about

the removal of Mr. Early from his elected position”’

(App. C, infra, 8a and 13a), the challenged decision

has effectively bestowed upon the press the very ‘‘un-

conditional freedom’’ to criticize public officials that

was urged without success in the concurring opinion in

New York Times vy. Sullivan, supra, 376 U.S. 293-305,

84 S. Ct. 733-39, and has consistently been rejected in

this Court’s subsequent rulings. See, e.g., Rosenbloom

v. Metromedia, 403 U.S. 29, 52, 91 S. Ct. 1811, 1824

(1971) ; Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-

49, 94 S. Ct. 2997, 3011 (1974).

Such an erosion and depreciation of the legal prin-

ciples that have controlled libel cases as presented

herein warrants full review on writ of certiorari. See

Rule 19(1)(a) of the Rules of the Supreme Court of

the United States.

The Florida District Court of Appeal has granted

an absolute protection to libelous news commentary, no

matter how vilifying or false, which can arguably

fit within the category of editorial opinion rather

than reportorial fact. Such a decision, if allowed to

stand, is contrary to prior decisions of this Court and

will undoubtedly serve to encourage further an emerg-

ing trend in this country towards irresponsible jour-

nalism, thereby tending to undermine, rather than to

promote, the public’s right to a wide-open but respon-

sible debate on public issues in search for the truth

about public affairs. That is, of course, the very essence

of the First Amendment guarantee of a free press. See,

e.g., Thornhill v. Alabama, 310 U.S. 88, 102, 60 S. Ct.

8

736, 744 (1940); Rosenbloom v. Metromedia, supra,

403 U.S. 41-42, 91 S. Ct. 1818; St. Amant v. Thompson,

390 U.S. 727, 732, 88 S. Ct. 1323, 1326 (1968).

One predictable consequence of removing all publish-

ing accountability and responsibility will be that pub-

lie officials will, out of caution, be chilled in the exer-

cise of their public duties and in their public state-

ments, lest they incur the displeasure of newspapers

and news commentators and thus become the target of

a campaign similar to that engaged in by the Palm

Beach newspapers in the present case. Once aware that

newspapers can publish, in news columns and with im-

punity under the guise of editorial opinion, defama-

tory material which is intentionally or recklessly false

and misleading, public officials will inevitably be chill-

ed and engage in self-censorship; the obvious result

will be less free and open debate of public issues.

Certainly, if the libelous conduct here is pot action-

able, it is unlikely that there will ever be a recovery for

libel and slander regardless of how outrageous the

false and reckless publication may be. This point was

well made by the trial court in denying Respondent’s

post-trial motions:

The New York Times and succeeding cases have

placed a heavy burden upon any public figure who

claims a cause of action for libel. If the protective

umbrella of the New York Times and succeeding

cases extends over Defendants who have acted as

have Defendants in this cause, I would have to

conclude that public officials are completely barred

from successful libel actions. .. . The Defendants’

attorneys, in both their briefs and their oral argu-

ment, have frequently quoted the well known say-

ing of the late President Truman with reference

Kt Pao ee ee ell!

to politicians and their sensitivity to criticism, ‘‘If

you can’t stand the heat, stay out of the kitchen’’.

Certainly, public figures inure themselves to a rea-

sonable amount of heat. However, a Defendant

cannot set fire to a building and then clawm the

cook has no right to complain of the heat. [App. F,

infra, at 17a; emphasis added}.

As this Court knows full well, the majority opinion

in New York Times v. Sullivan, supra, carefully

stopped short of absolving newspapers and reporters

from all responsibility for false and misleading state-

ments about public officials." Without in any respect

compromising the First Amendment protection ac-

corded to the press (New York Times vy. Sullivan,

supra, 376 U.S. 268-80, 84 S. Ct. 719-26), the Court de-

clared its milestone opinion in clear terms that the

news media could, and indeed should, be held account-

able for libelous and defamatory falsehoods relating

to official conduct where it could be shown ‘‘that the

statement([s] [were] made with ‘actual malice’—that

is, with knowledge that [they were] false or with reck-

less disregard of whether [they were] false or not’’

(376 U.S. 279-80, 84 S. Ct. 726). See also St. Amant v.

Thompson, supra, 390 U.S. 731, 88 S. Ct. 1325. To

allow the decision of the Florida District Court of

Appeal to stand is to seriously undermine the mile-

stone decision of New York Times v. Sullivan, supra.

Notably, this controlling standard was not announced

in qualifying terms which excused malicious reporting

that could be classified as editorial opinion, while leav-

ing vulnerable to attack intentional defamatory false-

hoods said to be only reportorial and factual in nature.

* See also Gertz v. Robert Welch, Inc., supra, 418 U.S. at 341-42,

94 8. Ct. at 3007-09. ;

10

Compare Cantrell v. Forest City Publishing Co., 419

U.S. 245, 95 S. Ct. 465 (1974). Indeed, the very context

in which New York Times V. Sullivan was decided be-

lies any such formalistic distinction. There, the Court

had before it what could only be -’.aracterized as an

‘editorial advertisement’, 1.¢., one which ‘‘communi-

eated information, expressed opinion, recited griev-

ances, protested claimed abuses, and sought financial

support... .”” (376 U.S. 266, 84S. Ct. 718). Certainly,

if a showing of ‘actual malice’’ in that case would have

provided a basis for recovery against intentional or

reckless falsehoods expressed through the medium of

advertising, so, too, should the reporters and publishers

in the present case be held accountable for their

defamatory cartoons and editorials which, as proven

below, they either knew or should have knova lacked

a foundation in truth.

For it is neither the form (1.e., opinion vs. fact) nor

the character (i.¢., truth vs. falsity) of expression that

is a measure of the constitutional protection afforded

to defamatory remarks by the press corps (see New

York Times v. Sullivan, 376 U.S. 271-79, 84.8. Ct. 721-

25). Rather, the test is whether the statements made or

opinions given were done with actual malice as defined

by this Court. Therefore, the First Amendment safe-

guards for free and open criticism by tae press of pub-

lie officials do not provide an absolute haven against

an award of damages in actions for libel and slander.

This conclusion is fully supported by the more re-

cent decisions by this and other courts. The several

opinions in Rosenbloom Vv. Metromedia, supra, demon-

strate clearly the lack of concern that this Court has

had with regard to whether the defamatory falsehoods

might be characterized as opinion or fact. As Mr. Jus-

11

tice Brennan concluded for the Rosenbloom plurality

all discussion and communication involving matters

of public and general concern’’ (403 U.S. 44, 91 8. Ct.

1820; emphasis added) must meet the test enunciated

in New York Times v. Sullivan, supra.

tet ne OD

Thus, news articles designed to place the subject in

a ‘false light’’ by sprinkling factual reports with de-

rogatory editorial comment have been held to be ac-

tionable conduct. See Cantrell v. Forest City Publish-

ing Co., supra; Varnish v. Best Median Publishing Co.

405 F.2d 608, 611-12 (2d Cir. 1968), cert. denied, 394

U.S. 987, 89 S. Ct. 1465 (1969). Similarly susceptible

to attack are newspaper campaigns aimed at malign-

ing the character of a public official through false in-

nuendo, accusation and infiuence. See Ginzburg Vv.

Goldwater, 414 F.2d 324 (2d Cir. 1969), cert. denied

396 U.S. 1049, 90 S. Ct. 1085 (1970) ; Ragano v. Times,

Ine., 302 F. Supp. 1005, 1010 (D.C. Fla. 1969), affirmed

427 F.2d 219 (5th Cir. 1970); Clay Communications,

Inc. v. Sprouse, 211 S.E.2d 674 (W. Va. Sup. Ct.

1974), cert. denied, 423 U.S. 882, 96 S. Ct. 145 (1975).

Moreover, where such character assassinations have

been undertaken without first making a reasonable ef-

fort to investigate the truth or falsity of the under-

lying charges, and they are shown to be irresponsibly

false, the First Amendment protection has been recog-

nized as unavailing. See, e.g., Curtis Publishing Co. v.

Butts, 388 U.S. 130, 157-58, 87 S. Ct. 1975, 1992 (1967).

The decision by Respondents to ‘‘get’’ Lloyd Early

embarked them on a zealous program of excessive pub-

lication demonstrating Respondents’ failure to investi-

gate properly despite having serious doubts regarding

the truthfulness of their publications. ‘‘ Publishing

12

with such doubts shows reckless disregard for truth or

falsity and demonstrates actual malice’’. St. Amant v.

Thompson, supra, 731.

Contrary to the decision oi the Florida District

Court of Appeal below (App. C, infra, at 9a-10a), this

Court’s opinion in Gertz v. Robert Welch, Inc., supra,

does not suggest that the foregoing line of authority

has no application to cartoons or editorial opinion.

Even though Mr. Justice Powell stated that ‘‘[u]nder

the First Amendment there is no such thing as a false

idea”’ (418 U.S. 340, 94 S. Ct. 3007), that certainly does

not provide newspapers with a license to denigrate the

character of public officials by expressing defamatory

opinions which are known to be without factual basis

and depend for their pronouncement on a reckless dis-

regard for truth. As this Court observed in Garrison

v. State of Louisiana, 379 U.S. 64, 75, 85 S. Ct. 209,

216 (1964), a case involving personal attacks through

the press on the integrity and honesty of a number of

judges:

Calculated falsehood falls into that class of utter-

ance which ‘‘are of no essential part of any essen-

tial part of any exposition of ideas, and are of such

slight social value as a step to truth that any bene-

fit that may be derived from them is clearly out-

weighed by the social interest in order and mo-

rality.”” . . . Chaplinsky v. New Hampshire, 315

U.S. 568, 572, 62 S. Ct. 766, 769, 86 L.Ed. 1031.

Hence, the knowingly false statements made with

reckless disregard of the truth, do not enjoy con-

stitutional protection. [Emphasis added].

It is from this perspective that we urge review by

this Court of the present case. That the Palm Beach

newspapers ‘“‘through their respective editorial and

ok» hate Bett th ot -

13

news reporters, cmbarked upon a concerted campaign

admittedly designed to bring about the removal of Mr.

Early from his elected position’ (App. C, infra, at 8a;

emphasis added) is not a matter of dispute. Nor is it

questioned that ‘‘[i]n pursuance of this objective, the

defendants published over a period of approximately

fourteen months several hundred news articles and edi-

torials, all of which were generally hostile to or critical

of Mr. Early and many of which were of a defamatory

nature’ (id.; emphasis added). In describing the tac-

tics used, the Florida District Court of Appeal spe-

cifically stated that ‘‘most of the articles and cartoons

can fairly be described as slanted, mean, vicious and

substautially below the level of objectivity that we

would expect of responsible journalism . . .’’ (App. C,

p. 134).

The jury, under proper instructions derived from the

standard in New York Times v. Sullivan, supra, found

as a fact that the campaign was carried out with ‘‘ac-

tual malice’’. There was more than sufficient evidence

introduced to show that the articles discussing Peti-

tioner’s ‘‘ineptness, incompetence and indecisiveness”’

(App. C, infra, at 1la; emphasis in original )—whether

viewed as ‘‘matters of opinion’’ or ‘‘statements of

fact’’ (id.)—were utterly without factual basis. The

references to Mr. Early “‘cheating’’, “‘stealing from

the public’’ and having his “‘fingers in the pot’’ (id.;

emphasis in original )—whether understood as connot-

ing ‘‘thievery’’ or ‘‘incompetent intervention” (id.)—

were also shown at trial to be false. Similarly, specific

news stories and cartoons which the Florida District

Court of Appeal recognized as ‘‘caustic and pejora-

14

tive’’ (id.) were entirely inaccurate.’ The same can

be said for the ‘‘series of articles [accusing] plaintiff

of nepotism’’ (App. C, infra, at 12a). Indeed, as to

this latter matter, the chairman of the school board,

to whom the charge of nepotism was attributed, testi-

fied not only that he was neither the source of, nor a

contributor to, these stories, but that the reporters who

interviewed him had suggested and pressed the charge

of nepotism during the interview; and then had subse-

quently attributed their own remark regarding nepo-

tism to the school board chairman. Such reckless dis-

regard for the truth cannot properly be dismissed,

as did the court below (id.), as nothing more than

‘*defendants’ failure to investigate’’.

In sum, it is a clear case of misapplication of federal

law that we bring to this Court. In addition to the

‘*smattering’’ (App. C, infra, at 13a) of articles re-

viewed by the Florida District Court of Appeal, there

were hundreds of other articles falsely accusing Mr.

Early of misdeeds ranging from incompetence to theft

* The trial judge so found in precise terms: ‘‘There was suf-

ficient and substantial evidence from which a jury could reason-

ably conclude that many of their articles were published knowing

of their falsity or with a high degree of awareness of their prob-

able falsity’’ (App. F, infra, at 16a). Thus, at no time did the school

board strip Mr. Early of his power; the reference to Mr. Early as

a ‘‘former trucker’’ was false and misleading; the criticism with

regard to Mr. Early’s use of educational TV was by no means lim-

ited to his speech to school employees, but was widespread and in

almost all respects unfounded ; the reports and cartoons relating to

what was represented to be Mr. Early’s planned firing of four

hundred members of the instructional staff were totally without

factual basis. The same can be said for the articles and cartoons

dismissed by the Florida District Court of Appeal as mere ‘‘rhe-

torical hyperbole’’. The evidence confirmed that the only individ-

uals ‘‘clamoring for new leadership in the school system’’ (App.

C, infra, at 13a) were the reporters themselves, not the public at

large as the articles implied.

eS

15

which the jury examined to ascertain whether the cam-

paign against this Petitioner was conducted with actual

malice and in reckless disregard for the truth. The

triers of fact were so persuaded in this regard that they

returned a verdict not only for compensatory damages,

but for punitive damages as well (App. E, infra). The

soundness of this determination was fully confirmed by

the trial judge who had equal exposure to all the docu-

ments introduced and all the testimony offered (App.

F’, infra). His conclusion bears repeating:

If the protective umbrella of the New York Times

and succeeding cases extends over Defendants who

have acted as have the Defendants in this cause,

I would have to conclude that public officials are

completely barred from successful libel actions.

[App. F, infra at 17a].

We agree with that assessment. The reversal of this

case by the Florida Court of Appeal depends largely

on their erroneous conclusion that editorial opinion,

even when mixed with news stories, enjoys a constitu-

tional protection under the First Amendment that is

not accorded to merely factual reporting by newsmen.

If this Court had intended New York Times v. Sulli-

van, supra, to be so interpreted, it is unthinkable that

a showing of ‘‘actual malice’’ would have been adopted

as the touchstone for liability in libel cases involving

public officials. That standard necessarily contemplates

reporting which is ‘“‘opinionated’’, rather than objec-

tive. It requires a showing that the press has pur-

posefully ‘‘slanted’’ the facts in a manner which is

known to be false, or which is recklessly indifferent to

the truth. Such is precisely the showing that was made

by Petitioner in the present case, and the reversal be-

low of his jury award for compensatory and punitive

16

damages resulting from Respondents’ ‘‘slanted, mean,

vicious” and admittedly irresponsible newspaper cam-

paign (App. C, infra, at 13a) is constitutionally imper-

missible. See U.S. Constitution, Article XIV, Section 1.

The Fourth District Court of Appeal incorrectly con-

cluded that under present law only a false statement

of fact made with ‘‘actual malice’’ could suffice for a

libel action brought by a public official. We contend

that is not the law as stated by this Court, and that

this misapplication of New York Times v. Sullivan,

supra, and its progeny provides a basis for future

claims of absolute immunity by newspapers, a concept

which this Court has rejected as unacceptable.

CONCLUSION

For the reasons stated, the petition for writ of certi-

orari should be granted.

Respectfully submitted,

SANTARELLI & GIMER

DonaLp E. SANTARELLI

Davin H. MartTINn

2033 M Street, N.W., Suite 700

Washington, D.C. 20036

202/466-6800

FarisH & FARISH

JosEePH D. FarisH, JR.

F. KENDALL SLINKMAN

316 First Street

West Palm Beach, Florida 33402

305/659-3500

Attorneys for Petitioner

Dated: May 20, 1978

APPENDIX

la

APPENDIX A

SUPREME COURT OF FLORIDA

Tvespay, May 31, 1977

Consolidated Cases

49,650 (appeal)

Case Nos. 49,625 (certiorari)

District Court or AppeaL, Fourtn District

74-1729—75-116

Luiorp F. Earty, Appellant, Petitioner,

vs.

Patm Beacu Newspapers, Inc., Erc., Er Au.,

Appellees, Respondents.

The Court having determined that it is without juris-

diction, it is ordered that the appeal, case no. 49,650, be

and is hereby dismissed sua sponte.

Case No. 49,625 having heretofore been submitted to the

Court on Petition for Writ of Certiorari, jurisdictional

briefs and portions of the record deemed necessary to re-

flect jurisdiction under Florida Appellate Rule 4.5 ¢ (6),

and it appearing to the Court that it is without jurisdiction,

it is ordered that the Petition for Writ of Certiorari be and

the same is hereby denied.

Vote for case no. 49,650 (appeal) :

Overton, C.J., Apkins, Born, Enoianp, SunpBeRe, anp

Hatcuert, J.J., Concur.

Vote for case no. 49,625 (certiorari) :

Overton, C.J., Boyp, Exnctanp, Sunpserc, anp Hatcuerrt,

J.J., Concur. Apxins, J., Dissenrs Wits Option.

A True Copy

Test:

/s/ Sid J. White

Clerk Supreme Court.

Apxins, J., dissenting.

Conflict does exist with several decisions cited by the

petition, and accordingly this Court should exercise its dis-

cretion and assume jurisdiction of the cause to resolve the

conflict and to dispose of the issues on the merits.

Petitioner, elected County Superintendent of Public In-

struction of Palm Beach County, was successful in the trial

court in an action for libel against respondents. A jury

verdict awarded him $1,000,000 in compensatory and puni-

tive damages, and final judgment was entered thereon. As

appears from the District Court of Appeals, Fourth Dis-

trict, decision under review, respondents, two daily news-

papers in Palm Beach, their editors and a reporter from

each, embarked upon a concerted campaign admittedly de-

signed to bring about the removal of Mr. Early from his

elected position, and, in pursuance of said objective, pub-

lished over a period of approximately fourteen months sev-

eral hundred news articles and editorials, all of which were

generally hostile to or critical of Early and many of which

were defamatory.

In an order denying respondents’ motion for new trial,

motion for mistrial and motion for J.N.O.V., the trial court

explained :

‘*The court finds that the jury was properly instructed

relative to the defendants’ privilege under the doc-

trine enunciated in New York Times v. Sullivan, 376

U.S. 254 (1964) and its progeny of cases. The court

further finds that the plaintiff carried his burden of

proof under the New York Times standard and proved

his case by the clear and convincing weight of the evi-

dence. There is ample evidence in the record from

3a

which the jury could reasonably conclude that the de-

fendants clearly engaged in a campaign to ‘get’ the

plaintiff. There was sufficient and substantial evidence

from which the jury could reasonably conclude that

many of their articles were published knowing of their

falsity or with a high degree of awareness of their

probable falsity.’’

Upon appeal, the District Court of Appeal, Fourth Dis-

trict, reversed on the ground that the petitioner had not

carried his burden of showing by clear and convicing evi-

dence that the defamatory statements were made with

knowledge of their falsity.

Petitioner submits that the subject District Court of

Appeal, Fourth District, decision creates a new rule of law

which permits the District Court to reweigh the evidence,

retry the case, and generally substitute its judgment for

that of the trial court. The Fourth District Court’s deci-

sion does conflict with several decisions cited by petitioner

to the effect that an appellate court is not free to substi-

tute its judgment for the trier of fact or to reweigh the

evidence and reach a different conclusion than the trial

court, Crane & Crouse, Inc. v. Palm Bay Towers Corp., 326

So.2d 182 (Fla. 1976), and to the effect that the existence or

nonexistence of malice where the facts are controverted and

there is evidence on the subject is a jury question. Coogler

v. Rhodes, 21 So. 109 (Fla. 1897), Montgomery v. Knoz, 3

So. 211 (Fla. 1887), Myers v. Hodges, 44 So. 357 (Fla.

1907), Firestone v. Time, Inc., 305 So.2d 172, cert. granted

95 S.Ct. 1557.

Cape Publications, Inc. v. Adams, —— So.2d —— (Fa.

4th DCA), opinion filed August 27, 1976, was an appeal

from substantial verdicts and judgments in a libel action.

In considering the evidence ‘‘in the light most favorable to

the verdict,’’ the court held that there was

46.

‘‘(C}lear and convincing support for a finding that

appellant exhibited a reckless disregard of whether the

charges were true or false, i.e., that they published the

articles with a high degree of awareness of the probable

falsity of the statements involved.’’

In the case sub judice, the defendants accused plaintiff

of ‘‘cheating,’’ aud ‘‘stealing from the public,’’ and that

he had his ‘‘fingers in the pot.’’ The District Court recog-

nized that these charges, if false and made with knowledge

with such falsity or with reckless disregard of the truth

thereof, would be actionable. The court then said:

‘‘However, in proper context the statements which de-

fendants actually made do not carry the implication

suggested by plaintiff. The first article referred to an

editorial in which the newspaper asserted that the

public and the school board had been cheated by Mr.

Early’s lack of leadership, while the second article

stated in an editorial that ‘Mr. Below sits on the sideline

doing what he can when Mr. Early’s fingers aren’t in

the pot’—implying. not thievery, but incompetent inter-

vention in the operation of the school system. Taken

in proper context, no reader of the newspaper articles

could have thought that the newspaper was charging

Early with the commission of any criminal offense.’’

The question of whether a reader of the newspaper

thought that the newspaper was charging plaintiff with the

commission of a criminal offense was clearly a jury ques-

tion. In this respect the District Court substituted its judg-

ment for that of the jury and the trial judge. If state-

ments which are published have a different effect on the

common mind of the reader than that which the truth would

have, then the jury is authorized to return a verdict for the

plaintiff. McCormick v. Miami Herald Publishing Co., 139

Co., 139 So.2d 197, 200 (Fla.2d DCA 1962); Hammond v.

Times Publishing Co., 162 So.2d 681, 682 (Fla.2d DCA

5a

1964); Layne v. Tribune Company, 146 So. 234, 238 (Fla.

1933); Johnson v. Finance Acceptance Co., 159 So. 364

(Fla. 1935); Joopanenco v. Gavagan, 67 So.2d 434 (Fla.

1953); Campbell v. Jacksonville Kennel Club, 66 S.2d 495

(Fla. 1853); Commander v. Pedersen, 156 So. 337 (Fla.

1934).

There is clear conflict and we should assume our respon-

sibility and accept jurisdiction.

— —— ae

6a

APPENDIX B

Tuurspay, Decemper 22, 1977

(Caption OmItTep IN PRINTING)

On consideration of the petition for rehearing filed by

attorneys for petitioner/appellant,

Ir Is Onperep by the Court that said petition be and the

same is hereby denied.

Overton, C.J., Boyp, Enctanp, SunpBere and Harcuert,

JJ., Concur. Apxrns, J., Dissents.

A True Copy

Tests:

/3/ Sw J. Wurire

Clerk Supreme Court

7a

APPENDIX C

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term, 1976

Case Nos. 75-116, 74-1729

Patm Beacu Newspapers, Inc., a Florida corporation,

Grecory Favre, R. H. Kirxpatrricx, Tom Sawyer and

Jane Arpz, Appellants,

Vv.

Luoyp F. Earty, Appellee.

Opinion filed April 23, 1976.

Consolidated appeals from the Circuit Court for Brow-

ard County; Victor O. Wehle, Judge.

Harold B. Wahl of Wahl and Gabel, Jacksonville, Cecil

H. Albury of Brennan, McAliley, Albury and Hayskar,

West Palm Beach, and John F. Law, North Palm Beach,

for appellants.

Joseph D. Farish, Jr. of Farish & Farish, West Palm

Beach, for appellee.

Per CurIaAM.

Lloyd F. Early, the elected County Superintendent of

Public Instruction of Palm Beach County, brought an ac-

tion for libel against Palm Beach Newspapers, Inc., the

publisher of two daily newspapers, and certain members of

the editorial and news staff of those two newspapers. A

jury verdict awarded Karly a total of $1,000,000 in com-

pensatory and punitive damages, and from the judgment

entered thereon the defendants have appealed. This is Case

No. 74-1729. The trial has been delayed for nearly two years

while defendants sought certiorari review of an order re-

quiring the corporate defendant to disclose certain financial

8a

information. Defendants had posted a bond conditioned to

pay all costs and damages occasioned by the delay. Sub-

sequent to verdict and final judgment, plaintiff sought to

recover on the bond asserting entitlement to two years’

interest on the judgment as his damages for the delay. The

postjudgment order denying plaintiff’s motion and grant-

ing the defendants’ motion to discharge the bond is the

subject of an interlocutory appeal, Case No. 75-116. We

affirm the latter order, and, for reasons hereafter set forth,

reverse, the judgment in Case No. 74-1729.

At all times material to this cause of action, Lloyd F.

HNarly was a public official. The corporate defendant pub-

lished two daily newspapers in Palm Beach County, the

Palm Beach Post, a morning paper, and the Palm Beach

Times, an evening paper. Defendants-Favre and Sawyer

were editor and reporter respectively for the Post, defend-

auts—Kirkpatrick and Arpe editor and reporter respec-

tively for the Times. Both papers, through their respective

editorial and news staffs, embarked upon a concerted cam-

paign admittedly designed to bring about the removal of

Mr. Early from his elected position. In pursuance of this

objective, the defendants published over a period of ap-

proximately fourteen months several hundred news articles

and editorials, all of which were generally hostile to or

critical of Early and many of which were of a defamatory

nature.

Although the defendant/appellants have raised a number

of points on this appeal, we find merit only as to those

relating to (1) the sufficiency of the evidence, (2) the cor-

rectness of certain jury instructions, and (3) the gross

excessiveness of the verdict. However, because we conclude

that the evidence is legally insufficient to sustain the verdict

and the judgment entered thereon, we dispose of the case

on that point alone, making it unnecessary to discuss the

remaining meritorious points.

9a

This case is governed squarely by New York Times Com-

pany v. Sullivan, 376 U.S. 254 (1964) and its progeny. In

the New York Times case, the court defined a constitu-

tional privilege intended to free criticism of public officials

from the restraints imposed by the common law of defama-

tion:

‘The constitutional guarantees require, we think, a

federal rule that prohibits a public official from recover-

ing damages for a defamatory falsehood relating to his

official conduct unless he proves that the statement was

made with ‘actual malice’—that is, with knowledge that

it was false or with reckless disregard of whether it

was false or not.’’ (376 U.S. at 279-80)

This standard, applicable to appellee—Lloyd F. Early as a

public officer, has been explicated in later cases. In Garri-

son v. Louisiana, 379 U.S. 64 (1964), it was said, at 74,

‘fonly those false statements made with the high degree of

awareness of their probable falsity demanded by New York

Times may be the subject of either civil or criminal sanc-

tions.’’ As stated in a footnote in Gertz v. Robert Welsh,

Inc., 418 U.S. 323 (1974) (footnote 6 at 334):

‘*In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct.

1323, 1325, 20 L.Ed.2d 262 (1968), the Court equated

reckless disregard of the truth with subjective aware-

ness of probable falsity: ‘There must be sufficient evi-

dence to permit the conclusion that the defendant in

fact entertained serious doubts as to the truth of his

publication.’ ”’

Malice in the traditional common law sense of sinister or

corrupt motive such as hatred, ill will, spite, enmity or a

wanton desire to injure has been distinguished from actual

malice as employed in the New York Times standard relat-

ing to a public official—knowledge of falsity or reckless

disregard of the truth. See, Beckley Newspapers Corp. v.

10a

Hanks, 389 U.S. 81 (1967); Garrison v. Louisiana, supra;

Henry v. Collins, 380 U.S. 356 (1965); Rosenblatt v. Baer,

383 U.S. 75, 84 (1966); Greenbelt Cooperative Publishing

Ass’n., Inc. v. Bresler, 398 U.S. 6, 9-11 (1970). Additionally,

it has been stated that those who hold governmental office

may recover for injury to reputation only on clear and con-

vincing proof that the defamatory falsehood was made with

knowledge of its falsity or with reckless disregard for the

truth. Gertz v. Robert Welsh, Inc., supra, at 342.

The Gertz case, supra, also made clear that the defama-

tory falsehood referred to in the New York Times stand-

ard refers to a statement of fact as opposed to pure com-

ment or opinion:

‘*We begin with the common ground. Under the First

Amendment there is no such thing as a false idea. How-

ever pernicious an opinion may seem, we depend for

its correction not on the conscience of judges and

juries but on the competition of other ideas. But there

is no constitutional value in false statements of fact.’’

(418 U.S. at 339-40)

It thus appears that under the present state of the law

concerning an action for libel by a public official, the plain-

tiff has the burden of showing by clear and convincing evi-

dence that the defamatory statement was (1) a statement of

fact, (2) which was false, and (3) made with ‘‘actual mal-

ice’’—that is, with knowledge that it was false or with reck-

less disregard of whether it was false or not. We conclude

from our examination of the briefs and those portions of the

record to which our attention has been directed, that the

plaintiff/appellee did not meet that burden as is illustrated

by the following sampling of the various articles of which

plaintiff complained.

Plaintiff/appellee complained that the defendants char-

acterized his tenure in office as unsuccessful, and stated that

he was unfit to hold the office of Superintendent of Public

lla

Instruction because of his ineptness, incompetence and in-

decisiveness. All of these charges were clearly matters of

opinion, not statements of fact, and were proper subject of

comment on a public official’s fitness for office.

Plaintiff/appellee complained that defendants accused

him of cheating and stealing from the public and that he had

his ‘‘ fingers in the pot.’’ A charge of cheating or stealing,

if false and made with knowledge of such falsity or with

reckless disregard for the truth thereof, would certainly be

beyond the constitutional privilege established by the New

York Times standard. However, in proper context the

statements which defendants actually made do not carry the

implication suggested by plaintiff. The first article referred

to an editorial in which the newspaper asserted that the

public and the school board had been cheated by Mr. Early’s

lack of leadership, while the second article stated in an edi-

torial that ‘‘Mr. Below sits on the sideline doing what he

ean when Mr. Early’s fingers aren’t in the pot’’—implying,

not thievery, but incompetent intervention in the operation

of the school system. Taken in proper context, no reader

of the newspaper articles could have thought that the |

newspaper was charging Early with the commission of any

criminal offense. Cf. Greenbelt Cooperative Publishing

Assn’n., Inc. v. Bresler, supra.

Many of the written articles and cartoons, caustic and

pejorative as they were, nonetheless had a basis in fact and

thus were not false: defendants reported that the school

board had stripped Mr. Early of his power (on that occa-

sion plaintiff had been directed by a majority of the five-

member school board to let the Deputy Superintendent, Mr.

Below, run the system); defendants described plaintiff, a

holder of two Masters Degrees in education, as a ‘‘ former

trucker’’ (but by Mr. Early’s own admission he had at one

time worked for a small trucking firm); defendants pub-

lished an article stating that plaintiff had made improper

use of an educational TV system by making a speech to

12a

school employees in which he defended himself against his

critics (but such use was contrary to regulation and Mr.

Early was criticized in this respect by some members of

the schoo] board and by the State Superintendent of Public

Instruction) ; defendants reported that plaintiff planned to

fire four hundred members of the instructional staff and a

cartoon depicted plaintiff chopping off heads while sur-

rounded by Lizzy Borden, Henry VIII, and Jack the Ripper

(but this is more a matter of semantics since, at the school

board meeting from which these matters originated, plain-

tiff had submitted a plan for cutting down by approximately

four hundred the number of new teachers to be hired in the

next year and at that meeting one of the school board mem-

bers had himself suggested that the action compared with

that of Lizzy Borden, Henry VIII and Jack the Ripper) ;

defendants reported that plaintiff was seeking a position

with the federal government (and in fact Mr. Early had

submitted an application for such a position).

A series of articles accused plaintiff of nepotism. They

dealt with employment of plaintiff’s wife, a registered

nurse, in the school system. She had been so employed be-

fore Mr. Early came to office and thus in this sense the

charge was false. However the series of articles relative to

this matter were based primarily on information furnished

by the then chairman of the school board, who had told de-

fendants that he assumed plaintiff had recommended his

wife for the school position since he, the school board chair-

man, had been informed that the plaintiff’s predecessor had

not recommended Mrs. Early for her part-time job with the

school system. There was no evidence to show that the de-

fendants had accused plaintiff of nepotism with knowledge

of the falsity of the charge or with a high degree of aware-

ness of its probable falsity. There was, at the most, only

proof of defendants failure to investigate, which without

more, cannot establish reckless disregard for the truth.

Gertz v. Robert Welsh, Inc., supra, at 332.

13a

Most of the articles and cartoons would fall in the cate-

gory of what the courts have chosen to call ‘‘rhetorical hy-

perbole’’ or ‘‘the conventional give and take in our eco-

nomic and political controversies.’’ In this category were

statements to the effect that public confidence in the school

system was eroding, that the public was clamoring for new

leadership in the school system, that plaintiff enjoyed TV

and news exposure, that plaintiff had not, prior to his elec-

tion, held an administrative position in the school system

higher than acting principal, and such cartoons as depicted

the school buildings falling down or crumbling under plain-

tiff’s leadership, as typical examples.

We do not here attempt to discuss or classify more than

a smattering of the several hundred derogatory articles

and cartoons which defendants published of and concern-

ing plaintiff. Suffice it to say that while most of the articles

and cartoons can fairly be described as slanted, mean,

vicious, and substantially below the level of objectivity that

one would expect of responsible journalism, there is no evi-

dence called to our attention which clearly and convincingly

demonstrates that a single one of the articles was a false

statement of fact made with actual malice as defined in the

New York Times case. We thus conclude that the defend-

ants’ motion for a directed verdict at the close of the evi-

dence should have been granted by the trial court. The

judgment is therefore reversed and the cause remanded

with directions to enter a judgment in favor of the de-

fendants.

Reversep and ReManpeD.

Watpen, C.J., Owen, J., and Strawn, Davin U., Associate

Judge, concur.

a — — —_o

l4a

APPENDIX D

(Caption Omirrep in Printine)

June 2, 1976

Ornverep that the Appellee’s May 7, 1976 Petition for Re-

hearing and Motion to Certify Question as Being of Great

Public Interest is hereby denied.

A True Copy

/s/ Em™ert J. Comiskey

Emmett J. Comiskey

Clerk

15a

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT OF

FLORIDA, IN AND FOR BROWARD COUNTY.

No. 71-10447—Wehle

Lioyp F. Earxy, Plaintiff,

vs.

Patm Beacn Newspapers, Inc., a Florida corporation,

Grecory FE. Favre, R. H. Kirxparricx, Tom Sawyer and

Jane Arpr, Defendants.

Final Judgment for Plaintiff

Pursuant to the verdict rendered in this action,

Ir Is Apsupcep that the Plaintiff, Luoyp F. Earty, re-

covers from the Defendants, Patm Beacn Newspapers, Inc.,

Grecory FE. Favre, R. H. Kinxpatrick, Tom Sawyer and

Jane Arps, the sum of $950,000.00 as compensatory dam-

ages, and that the Plaintiff, LLoyp F. Earty, recovers from

the Defendant, Grecory E. Favre, the sum of $25,000.00 as

punitive damages, and that the Plaintiff, Lioyp F. Karty,

recovers from the Defendant, Rk. H. Kirxratrick, the sum

of $25,000.00 as punitive damages, besides his costs in his

behalf expended, to be taxed by special order of the Court.

Execution is withheld until time has expired for filing mo-

tion for new trial or a motion for new trial has been ruled

upon.

Orperep this the 28th day of August, A. D., 1974.

/s/ Victor O. Wexnie

Circuit Judge

16a

APPENDIX F

(Caption OMITTED IN PRINTING)

Order Denying Defendants’ Motion for Mistrial and Motion for

Judgment Notwithstanding Verdict or in the Alternative for New

Trial, and Plaintiff's Motion to Strike

Tuts Cavs came on to be heard on the post-trial motions

of the Defendants after Verdict and Final Judgment have

been entered for the Plaintiff. The Defendants have filed

with this Court a Motion for Mistrial and a Motion for

Judgment Notwithstanding Verdict or in the Alternative

for New Trial. The Plaintiffs have filed a Motion to Strike

Defendants’ Post-Trial Motions. The Court hes heard argu-

ment of counsel and after having carefully studied very

comprehensive and scholarly briefs provided by all counsel,

and being fully advised in the premises, the Court finds:

1. The Plaintiff’s Motion to Strike is without merit.

2. With reference to the Motion for Mistrial, there has

been no showing of any prejudicial] error.

3. With reference to the Motion for Judgment Not-

withstanding Verdict or in the Alternative for New Trial,

the Court finds that the jury was properly instructed rela-

tive to the Defendants’ privilege under the doctrine enunci-

ated in New York Times y. Sullivan, 376 U.S. 254 (1964)

and its progency of cases. The Court further finds that the

Plaintiff carried his burden of proof under the New York

Times standard and proved his case by the clear and con-

vincing weight of the evidence. There is ample evidence in

the record from which the jury could reasonably conclude

that the Defendants clearly engaged in a campaign to ‘‘get”’

the Plaintiff. There was sufficient and substantial evidence

from which a jury could reasonably conclude that many

of their articles were published knowing of their falsity or

with a high degree of awareness of their probable falsity.

17a

The New York Times and succeeding cases have placed a

tremendous burden upon any public figure who claims a

cause of action for libel. If the protective umbrella of the

New York Times and succeeding cases extends over De-

fendants who have acted as have the Defendants in this

cause, 1 would have to conclude that public officials are

completely barred from successful libel actions. I cannot

and will not accept this unless and until an Appellate Court

so directs. The Defendants’ attorneys, in both their briefs

and their oral argument, have frequently quoted the well-

known saying of the late Persident Truman with reference

to politicians and their sensitivity to criticism, ‘‘If you

can’t stand the heat, stay out of the kitchen’’. Certainly,

public figures must inure themselves to a reasonable amount

of heat. However, a Defendant cannot set fire to a building

and then claim that the cook has no right to complain of

the heat.

4. The Court further finds that the alleged non-consti-

tutional basis for an award of a new trial are without

merit.

Tuerevupon It Is OrnpeRED anp ApsuDGED:

1. The Defendants’ Motion for Mistrial is denied.

2. The Defendants’ Motion for Judgment Notwith-

standing the Verdict or in the Alternative for a New Trial

is denied.

3. The Plaintiff’s Motion to Strike Defendants’ Post-

Trial Motions is denied.

Done anv Orperep this the 19th day of November. A.D.

1974.

/s/ Victor C. WEHLE

Cireuit Judge