Petition — Kidder v. Anderson

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

no v254f. 1714

HOWARD A. KIDDER

Petitioner

versus

BOB ANDERSON and

CAPITAL CITY PRESS, INC.

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF LOUISIANA

ROBERT L. KLEINPETER

KLEINPETER AND KLEINPETER

Post Office Box 66443

Baton Rouge, Louisiana 70896

Telephone: 504-926-5093

Counsel for Petitioner

ORTLIEB Ess BATON ROUGE

TABLE OF CONTENTS

Page

dee esse ii

. ae

r . 1

eee ee eee 80 1

,, .. RPE UN 2

Constitutional Provisions Involved. 2

BEES GE GD GED occ eee eee eee eee 3

es Tae Ge GD Wee ov ccccescconcesecanccess 5

1. The Louisiana Supreme Court, basing its holding

solely upon a federal constitutional law, miscon-

strued the role of New York Times Co. v. Sullivan,

376 U.S. 254 (1964), and its progeny, and misapplied

such rule so as to deprive a public official-defama-

tion plaintiff of his rights to recover in a defamation

action on proving New York Times actual malice.... 5

2. By summarily overruling the jury’s verdict for

the plaintiff, without finding that there was no

credible evidence in support of such verdict, the

Louisiana Supreme Court violated the plaintiff’s

seventh and fourteenth amendment rights to trial

2 b:n650064b4060006n0s00bRE00eNeRRRESEEOSC 21

r cnn peers e resets

Appendix A: Opinion of the

Louisiana Court of Appeal 33

Appendix B: Opinion of the

Supreme Court of Louisianazazgz.z 87

Appendix C: Petitioner’s application for rehearing

filed with the Louisiana Supreme Court ............ 96

Appendix D: Order Denying the Application ........... 115

Appendix E: Newspaper articles printed by Bob

Anderson and Capital City Press, Ine. 116

ii

TABLE OF AUTHORITIES

Cases Page

Appleyard v. Transamerica Press, Inc., 539 F.2d 1026

(4th Cir. 1976), cert. denied, 429 U.S. 1041 (1977). . 16

Airlie Foundation, Inc. v. Evening Star Newspaper Co.,

337 F.Supp. 421 (D.D.C. 1972):ꝛ:rꝛ cece wees 14

Ballow v. Georgia, U.S. ——, 46 U.S.L.W.

eros et ee eee ess 30

Beacon Theatres, Inc. v. Westover,

I . 29

Betts v. Brady, 316 U.S. 455 (1942) ᷑ ʒ U tn Un 27

Bon Air Hotel, Inc. v. Time, Inc.,

426 F. 2d 858 (5th Cir. 197% 0h 20

Brewer v. Memphis Publishing Co., Inc.,

ILL 6

Buckley v. Littell, 539 F.2d 8 2 (2d Cir. 1976),

cert. denied, 429 U.S. 1062 (1977) ᷑ ũ .. 16

Carey v. Hume, 390 F.Supp, 1026 (D.D.C, 1975),

aff'd, 543 F.2d 1389 (D.C.Cir. 1976) .............. 16

Carson v. Allied News Co.,

529 FBd B06 (Tth Cir. 0 ůhůůũñrſii 16

Chase v. Daily Record, Inc., 83 Wash. 2d 37,

I. 16

Chicago, Burlington & Quincy R. R. v. City of Chicago,

II 28

Colgrove v. Battin, 413 U.S. 149 (197330;0A 24

Cramp v. Board of Public Instruction,

ee We Ee GED eren 7

Curtis v. Loether, 415 U.S. 189 (197õ7“ 29

Curtis Publishing Co. v. Butts, 388 U.S. 130,

rehearing denied, 389 U.S. 889 (1967) .......... 9,13

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) ........ 29

Dimick v. Schiedt, 293 U.S. 474 (1934)!et]:᷑ 29

ii

Cases Page

Duncan v. Louisiana, 391 U.S. at 145 (1968),

rehearing denied, 392 U.S. 947 (1968) .......... 24, 30

Edwards v. Elliot, 88 U.S. 532 (1874) ...............5. 21

Edwards v. National Audubon Society, Inc.,

556 F.2d 113 (2d Cir. 1977), cert. denied,

— US. ——, 46 U.S.L.W. 3390 (1977) .......... 16

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ........ 8

Field Research Corp. v. Patrick, 30 Cal. App. 3d 603,

106 Cal. Rptr. 473 (1973), cert. denied,

e a 15, 16

Fox Film Corp. v. Muller, 296 U.S, 207 (1935) ......... 7

Fusari v. Steinberg, 419 U.S. 379, rehearing denied,

, .... 24

Garrison v. Louisiana, 379 U.S, 64 (1964) .............. 11

Gideon v. Wainwright, 372 U.S. 335 (1963)))! 27. 30

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

cert. denied, 396 U.S. 1049, rehearing denied,

e pr ere 15

Grosjean v. American Press Co., 297 U.S. 233 (1936) ....27

Guam Federation of Teachers v. Ysrael,

492 F.2d 438 (9th Cir.), cert. denied,

e ̃ ̃ũ ᷑ ...... oeues 20

Jacob v. City of New York, 315 U.S. 752 (1942) 30

Jankovich v. Indiana Toll Road Commission,

e ̃è . 7

Kidder v. Anderson, 354 So. 2d 1306 (La. 1978),

rev'g 345 So. 2d 922 (La. App. 1977y)ꝛꝛʒ 7

Klopfer v. North Carolina, 386 U.S. 213 (1967) 30

Mahnke v. Northwest Publications, Inc.,

280 Minn. 328, 160 N. W. 2d 1 (1968))):: 16

Mandel v. Bradley, —— U.S. ——, 97 S.Ct.

, ͥ . eee ek haan 23

iv

Cases Page

Mashburn v. Collin, 355 So.2d 879 (La. 1977) 7)7)7 6

Melancon v. McKeithen, 345 F.Supp. 1025 (E.D. La.),

(three judge court), aff’d sub nom

Hill v. McKeithen, 409 U.S. 943 (1972), Davis v.

Edwards, 409 U.S. 1098 (19733meꝛ:1e᷑ꝝ i 23

Missouri v. Mayfield, 340 U.S. 1 (1950: 8

New York Times Co. v. Sullivan,

STS UB, BEE CRBGSD . ccccvccvocecctesccceses Passim

Palko v. Connecticut, 302 U.S. 319 (1937) ............. 25

Parsons v. Bedford, 3 Peters (28 U.S.) 433 (1830) ..... 26

Poafpybitty v. Skelly Oil Co., 390 U.S, 365 (1968) ...... 8

Powell v. Alabama, 287 U.S. 45 (1932)))): 27

Rosenblatt v. Baer, 383 U.S, 75 (1966))::: 9

St. Amant v. Thompson, 390 U.S. 727 (1968) .......... 6, 10

Sas Jaworsky v. Padfield,

211 So.2d 122 (La. App. 196889)))): 16

Sprouse v. Clay Communications, Inc., 211 S.E.2d

674 (W. Va.), cert. denied, 423 U.S. 882,

rehearing denied, 423 U.S. 991 (19759)))))): 16

Thompson v. Evening Star Newspaper Co., 394 F.2d 774

(D.C. Cir.), cert. denied, 393 U.S. 884 (1968) .....20

Time, Inc. v. Hill, 385 U.S. 374 (1967) 77 8,19

Time, Inc. v. McLaney, 406 F.2d 656 (5th Cir.),

cert. denied, 395 U.S, 922 (19690)))·᷑ỹ3 20

Usery v. Turner Elkhorn Mining Co.,

u.. „... ð ͤ 24

Wagner Electric Manufacturing Co. v. Lynden,

IIe 22

Washington v. Texas, 388 U.S. 14 (1967) .............. 30

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir.

1966), cert. denied, 385 U.S. 1011 (1967) .......... 20

Cases Page

Wasserman v. Time, Inc., 424 F.2d 920 (D.C. Cir.),

cert. denied, 398 U.S. 940 (1970) ................. 20

Zacchini v. Scripps-Howard Broadcasting Co.,

— US. ——, 97 S.Ct. 2849 (1977) .............. 7

Constitution and Statutes

U.S. Const. amend. YII

EEE . , 2

, eee 2, 3

28 U.S. C. A. § 1257 (3) (19866)))) cece ecee. 2

r eee 30

Other Authorities

12 N. F. U. L. Cen. Bull. 5 (196))))))):m 22

— —

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

HOWARD A. KIDDER

Petitioner

versus

BOB ANDERSON and

CAPITAL CITY PRESS, INC.

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF LOUISIANA

INTRODUCTION

The petitioner respectfully prays that a writ of certiorari

be granted to review the judgment and opinion of the Supreme

Court of Louisiana entered on January 30, 1978, entitled

Howard A. Kidder v. Bob Anderson and Capital City Press,

Ine.

OPINIONS BELOW

The opinion of the Court of Appeal of Louisiana, First

Circuit, is reported at 345 So. 2d 922 (La. App. 1977), and is

reprinted in the appendix hereto at A. The Opinion of the

Supreme Court of Louisiana is reported at 354 So. 2d 1306

(La. 1978), and is reprinted in the appendix hereto at B.

JURISDICTION

The judgment of the Supreme Court of Louisiana was

entered on January 30, 1978. A petition for rehearing was

denied on March 2, 1978. (Appendix D) This petition was filed

within the time allowed for the filing of such petition.

The jurisdiction of this Court is invoked under 28

U.S.C.A. § 1257(3) (1966).

QUESTIONS PRESENTED

1. Did the Louisiana Supreme Court misconstrue and

misapply the New York Times actual malice rule by reversing

a judgment for a public official-defamation plaintiff where

there was a finding of calculated falsehood as well as reckless

disregard of truth or falsity on the part of the defendants,

a newspaper and its reporter, so as to deprive such plaintiff

of the right to recover on proof of New York Times actual

malice?

2. Did the Louisiana Supreme Court, by overruling the

jury’s verdict for the plaintiff, without finding that there was

no credible evidence in support of such verdict, violate the

plaintiff's rights, under the Seventh and Fourteenth Amend-

ments, to a trial by jury, by re-examining the evidence in a

manner not in accordance with the rules of the common law?

CONSTITUTIONAL PROVISIONS INVOLVED

This case presents issues arising under the Seventh

Amendment to the United States Constitution, which provides:

In Suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried by a

jury, shall be otherwise reexamined in any Court of

the United States, than according to the rules of

the common law,

PO „ CE

32

and under the Fourteenth Amendment, which provides in

relevant part:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

The petitioner, Howard A. Kidder, hereinafter referred

to as the plaintiff, is Chief of Police of the City of Baton

Rouge, Louisiana. The defendant, Capital City Press, Inc.

publishes two newspapers of general circulation in Baton

Rouge, and defendant Bob Anderson is employed as a reporter

by such newspapers. Prior to the publications forming the

basis of his action, he had an outstanding reputation in the

community, as evidenced in part by an editorial published on

May 2, 1974, in which the defendant newspaper warmly com-

mended the Mayor-President of Baton Rouge for appointing

Kidder Acting Chief of Police.

Over a period from June 12, 1974 through August 8,

1974, the defendants published a series of articles and edi-

torials defaming Kidder. Those publications charged Kidder

with having operated a house of prostitution in the 1950’s,

while a member of the police force, with having accepted

payoffs and gratuities in return for protection of barrooms

and gambling operations, with “harrassment” of a police offi-

cer, who was one of Anderson’s sources for the series of

articles, and with corruption in relation to the purchase of

police uniforms. There was also an article, accompanied by a

misleading picture and headline, inferring impropriety with

4

regard to a reduced assessment on property owned by Kidder.

The articles at issue are repriuted in the Appendix hereto

at E.

At trial, the plaintiff produced substantial evidence going

to prove both actual malice and intentional falsehood on the

part of the defendants. Shortly after the appearance of the

favorable editorial, a conflict developed within the Baton

Rouge police department, in which a group of police officers,

working through a Police Union, sought to prevent Kidder’s

appointment to the position of Chief of Police. Defendant

Anderson joined in this effort, to the extent of promising to

keep Kidder on the front page so long as the disgruntled

police officers continued to provide alleged “information.” The

evidence shows that the defendants were aware, at time of

publication, that their articles were based on mere supposition

and rumor. They chose, however, to publish such rumors as

substantiated facts.

Specifically, the record shows that, with regard to the

two most damaging defamatory charges, i.e., the barroom

and gambling protection, and the operation of the house of

prostitution, Anderson obtained information that Kidder was

not connected with any of such activities, but chose to ignore

that source of information, and rely instead on unsubstanti-

ated rumors furnished him by the disgruntled policemen. It

was shown that the defendants also relied on eriminal sources,

and on Kidder’s brother-in-law, one Jim McBride, although

he was advised by McBride that he — McBride — had had a

sorious brain operation, and a resulting failing memory.

There was testimony that, at one meeting of the dissident

policemen, Anderson expressed his agreement with their plan

to get rid of Kidder.

The tria! court denied the defendant’s motions for partial

summary judgment, After trial, the jury was instructed in

accordance with the New York Times actual malice standard,

5

and returned a verdict for the plaintiff in the amount of

$400,000 actual damages. The Louisiana Court of Appeal,

First Circuit affirmed the judgment for the plaintiff, with

dissent, but reduced the award of damages to $100,000. The

Louisiana Supreme Court, with three justices dissenting,

reversed the judgment for the defendants, holding that the

New York Times line of authority would not permit recovery

under the circumstances of the case. That court further held

that the defendant’s motion for summary judgment had been

improperly denied.

The plaintiff’s dual contentions that the Louisiana Su-

preme Court misconstrued and misapplied the New York

Times actual malice rule, and, in so doing, and overturning

the jury’s verdict for the plaintiff, deprived the plaintiff of

his right to a meaningful trial by jury, form the basis of

this petition for certiorari.

This case was tried, from the trial stage through final

appeal, on the understarding that the plaintiff was a public

official, within the New York Times rule. Therefore, the

applicable federal constitutional standard question was raised

at every stage of the proceedings. The right to jury issue was

raised in the application for rehearing to the Supreme Court

of Louisiana, which application was denied.

REASONS FOR GRANTING THE WRIT

I. THE LOUISIANA SUPREME COURT, BASING

ITS HOLDING SOLELY UPON FEDERAL CONSTI-

TUTIONAL LAW, MISCONSTRUED THE RULE OF

NEW YORK TIMES V. SULLIVAN, 376 U.S. 254

(1964), AND ITS PROGENY, AND MISAPPLIED

SUCH RULE SO AS TO DEPRIVE A PUBLIC

OFFICIAL-PLAINTIFF OF HIS RIGHT TO RE-

COVER IN A DEFAMATION ACTION ON PROOF

OF NEW YORK TIMES ACTUAL MALICE.

6

This case presents the important question of the continu-

ing validity of the rule that the first and fourteenth amend-

ments do not bar a public official plaintiff's right to recover

in a defamation action where he proves

Tyhat the statement was made with ‘actual malice’—

that with knowledge that it was false or with reckless

disregard of whether it was false or not.

New York Times v. Sullivan, supra, 376 U.S. at

This is not a case, it must be initially emphasized, where

a state has exercised its right “to adopt a more severe stan-

dard for recovery in such [public figure defamation] cases

if it chose to do so,” Brewer v. Memphis Publishing Co., Inc.,

538 F.2d 699, at 702 (5th Cir. 1976). There is no reliance in

the opinior of the Louisiana state court on Louisiana law,

the only cases cited therein being New York Times, St. Amant

v. Thompson, 390 U.S. 727 (1968), Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974), and Mashburn v. Collin, 355 So.2d

879 (La. 1977), rev’g, 341 So.2d 1236 (La. App.).

In Mashburn, where it was held that a newspaper colum-

nist, who wrote an article derogatory of the food served by

the plaintiff’s restaurant, was entitled to New York Times

protection, the Louisiana Supreme Court expressly disclaimed

any reliance upon Louisiana state law:

Because an expression of opinion without knowing

or reckless falsity about a matter of public concern

by the press is fully protected under the First Amend-

ment aegis, we did not consider to what extent our

state constitution, jurisprudence and statutes also

protect expression of such opinions. Nor did we at-

tempt to define the ambit of Louisiana’s safeguard

for defamatory misstatements of fact . . . It is clear

that a state is free to adopt any reasonable standard,

so long as it affords the minimum protection re-

quired by the New York Times-Gertz cases. In the

7

instant case it was not necessary for us to define

such a standard fer Louisiana because we found the

expressions in question to be opinions fully protected

by the minimum federal standards.

355 So. 2d at 891-92.

Therefore, this is not a proper case for application of:

ITzne settled rule that where the judgment of a

state court rests upon two grounds, one of which is

federal and the other nonfederal in character, our

jurisdiction fails if the nonfederal ground is inde-

pendent of the federal ground and adequate to sup-

port the judgment.”

Cramp v. Board of Public Instruction, 368 U.S. 278 at 281

(1961), quoting Fox Film Corp. v. Muller, 296 U.S. 207 at

210 (1935). Accord, Jankovich v. Indiana Toll Road Commis-

sion, 379 U.S. 487 at 489 (1965).

Rather, the situation here is analogous to that in the

recent case of Zacchini v. Scripps-Howard Broadcasting Co.,

U.S. , 97 S.Ct. 2849 (1977), rev’g, 47 Ohio St. 224,

351 N.E.2d 454 (1976), an action by an entertainer who

claimed infringement of his right of publicity by the defen-

dant’s televising of his act, where this Court noted that: “If

the judgment below rested on an independent and adequate

state ground, the writ of certiorari should be dismissed as

improvidently granted,” 97 S.Ct. at 2852. However, in view

of the Ohio Supreme Court’s reliance on federal constitutional

authority in reaching its decision, the Zacchini court found

the case to be a proper one for decision, holding:

Even if the judgment in favor of respondent

must nevertheless be understood as ultimately resting

on Ohio law, it appears that at the very least the Ohio

court felt compelled by what it understood to be

federal constitutional considerations to construe and

apply its own law in the manner it did. In this event,

we have jurisdiction and should decide the federal

8

issue; for if the state court erred in its understand-

ing of our cases and of the First and Fourteenth

Amendments, we should so declare, leaving the state

court free to decide the privilege issue solely as a

matter of Ohio law.

Id. at 2853-54. Quoting Missouri v. Mayfield, 340 U.S, 1

(1950), it was held:

jf the Supreme Court [of Ohio] held as it did be-

cause it felt under compulsion of federal law as enun-

ciated by this Court so to hold, it should be relieved

of that compulsion. It should be freed to decide

these suits according to its own local law.”

Id. at 2854, quoting 340 U.S. at 3. Accord, Poafpybitty v.

Skelly Oil Co., 390 U.S. 365 at 376 (1968).

It is respectfully submitted that, just as the Zacchini

court held the Ohio Supreme Court’s construction and appli-

cation of Time, Inc. v. Hill, 385 U.S. 374 (1967), to be in

error, holding:

We conclude that although the State of Ohio

may as a matter of its own law privilege the press

in the circumstances of this case, the First and

Fourteenth Amendments do not require it to do so.

97 S.Ct. at 2859, certiorari should be granted here for con-

sideration of the validity of the Louisiana Supreme Court’s

construction and application of New York Times and its

progeny.

The line of authority deriving from New York Times,

constantly emphasizing the “tension [which] necessarily exists

between the need for a vigorous and uninhibited press and

the legitimate interest in redressing wrongful injury,” Gertz

v. Robert Welch, Inc., supra, 418 U.S. at 343, has never re-

jected the principle that “important social values . . underlie

9

the law of defamation . . .,” Rosenblatt v. Baer, 383 U.S. 75

at 86 (1966), or accepted the absolutist view of Mr. Justice

Black and Mr. Justice Douglas that publishers enjoy an abso-

lute immunity from liability for defamation, including cases

of intentional falsity. See, e.g., New York Times, supra, 376

U.S. at 733 (concurring opinion); Curtis Publishing Co. v.

Butts, 388 U.S. 130 at 170, rehearing denied, 389 U.S. 889

(1967) (concurring in part, dissenting in part). To accept

such a rule, as held in Gertz,

would, indeed, obviate the fear that the prospect of

civil liability for injurious falsehood might dissuade

a timorous press from the effective exercise of First

Amendment freedoms. Yet absolute protection for

the communications media requires a total sacrifice

of the competing value served by the law of defama-

tion.

The legitimate state interest underlying the law

of libel is the compensation of individuals for the

harm inflicted on them by defamatory falsehood. We

would not lightly require the State to abandon this

purpose

418 U.S. at 342. Gertz quoted with approval the view of Mr.

Justice Stewart’s concurring opinion in Rosenblatt v. Baer,

supra, that the individual’s right to the protection of his own

good name:

“(Rjeflects no more than our basic concept of the

essential dignity and worth of every human being—

a concept at the root of any decent system of ordered

liberty. The protection of private personality, like

the protection of life itself, is left primarily to the

individual States under the Ninth and Tenth Amend-

ments. But this does not mean that the right is en-

titled to any less recognition by this Court as a basic

of our constitutional system.”

Id., quoting 383 U.S. at 92 (concurring opinion). Mr. Justice

Stewart further noted in Rosenblatt that:

10

The First and Fourteenth Amendments have not

stripped private citizens of all means of redress for

injuries inflicted upon them by careless liars. The

destruction that defamatory falsehood can bring is,

to be sure, often beyond the capacity of the law to

redeem. Yet, imperfect though it is, an action for

damages is the only hope for vindication or redress

the law gives to a man whose reputation has been

falsely dishonored.

Moreover, the preventive effect of liability for

defamation serves an important public purpose, For

the rights and values of private personality far tran-

scend mere personal interests.

383 U.S. at 93-94.

The continuing right of a public official plaintiff to

recover on proof of actual malice, as well as the error in the

holding of the court below, is pointed up by St. Amant v.

Thompson, supra, which, as does the case at bar, involved a

defamation action by a police official. The St. Amant court

held:

The defendant in a defamation action brought

by a public official cannot, however, automatically

insure a favorable verdict by testifying that he pub-

lished with a belief that the statements were true.

The finder of fact must determine whether the pub-

lication was indeed made in good faith . . . [RJeckless-

ness may be found where there are obvious reasons

to doubt the veracity of the informant or the accu-

racy of his reports.

390 U.S. at 732 (emphasis added). In holding that the court

below had misapplied the actual malice standard, St. Amant

noted, referring to the informant on whose information the

defendant relied:

[T]he most the state court could say was that there

was no evidence in the record of [the informant‘s]

11

reputation for veracity, and this fact merely under-

lines the failure of Thompson's evidence to demon-

strate a low community assessment of Albin's trust-

worthiness or unsatisfactory experience with him by

St. Amant.

Id. at 733 (emphasis added). The low community assessment

of many of the instant defendant’s informants was inferen-

tially conceded by the court below in this case, but, disregard-

ing St. Amant, while citing that case, the court approved

the defendant’s reliance upon such disreputable class of in-

formants:

[T]he plaintiff also uggests that the newspaper re-

porter improperly relied upon information conveyed

to him (and corroborated by written statements ob-

tained from them) from gamblers and barmaids as

to payoffs or bribes.

We are unable to accept the inference that, there-

fore, the reporter should not have relied upon infor-

mation as to bribery conveyed by them.

354 So.2d at 1309.

In Garrison v. Louisiana, 379 U.S. 64 (1964), this Court

emphasized the fact that the New York Times rule is not

designed to protect the intentional falsehood or the false

statement made with reckless disregard of the truth. The

Garrison court held:

The use of calculated falsehood, however, would put

a different cast on the constitutional question, Al-

though honest utterance, even if inaccurate, may

further the fruitful exercise of the right of free

speech, it does not follow that the lie, knowingly and

deliberately published about a public official, should

enjoy a like immunity .. That speech is used as a

tool for political ends does not automatically bring

it under the protective mantle of the Constitution.

For the use of the known lie as a tool is at once at

12

odds with the prer ises of democratic government

and with the orderly manner in which economic,

social, or political change is to be effected... Hence

the knowingly false statement and the false state-

ment made with reckless disregard of the truth, do

not enjoy constitutional protection.

379 U.S. at 75. The Louisiana Court of Appeal, in this case,

expressly found intentional falsehood, as well as reckless dis-

regard. With regard to the ariicle charging the plaintiff with

having operated a house of prostitution, the court of appeal

found:

When Anderson published the articles charging

Kidder with running a house of prostitution and

receiving payoffs for barroom protection, he knew

that they were based on unsubstantiated rumors.

When a lead produced information that Kidder was

not connected with prostitution or barroom protec-

tion, Anderson chose to ignore that source and to

rely on hearsay or dubious information furnished him

by the two former policemen. This is the “calculated

falsehood” condemned in Garrison, supra.

315 So.2d at 939 (emphasis added). A thorough reading of

the Louisiana Supreme Court’s opinion discloses no indication

that that court rejected such finding of fact, although the

court did inexplicably state:

The record discloses no reason for Anderson or

his publisher to doubt the trustworthiness of the

information received by them and subsequentiy pub-

lished.

354 So.2d at 1309. It therefore clearly appears that the court

below, while purportedly applying the New York Times line

of authority, has in fact rejected the aspect of such authority

permitting recovery on proof of intentional falsehood or

reckless disregard.

—— —————— —

13

The leading case of Curtis Publishing Co. v. Butts, supra,

is strongly analogous to the case at bar, and provides an

additional indication of the error of the court below. The

facts in Butts showed that the informant relied upon by the

publisher in gathering information on the alleged football

“fix” there at issue did in fact overhear a conversation be-

tween the pla ntiff and an opposing coach. Nevertheless, the

plurality opinion of this Court found the evidence as to the

defendant’s conduct sufficient to support recovery:

The evidence showed that the Butts story was

in no sense “hot news” and the editors of the maga-

zine recognized the need for a thorough investigation

of the serious charges. Elementary precautions were,

nevertheless, ignored. The Saturday Evening Post

knew that Burnett had been placed on probation in

connection with ad check charges, but proceeded

to publish the story on the basis of his affidavit

without substantial independent support

Those assisting the Post writer in his investiga-

tion were already deeply involved in another libel

action, based on a different article, brought against

Curtis Publishing Co. by the Alabama coach and

unlikely to be the source of a complete and objec-

tive investigation. The Saturday Evening Post was

anxious to change its image by instituting a policy

of “sophisticated muckraking,” and the pressure to

produce a successful exposé might have induced a

stretching of standards. In short, the evidence is

ample to support a finding of highly unreasonable

conduct constituting an extreme departure from the

standards of investigation and reporting ordinarily

adhered to by responsible publishers.

388 U.S. at 157-78 (emphasis added). While it is true that

the Butts plurality applied a standard less than the New

York Times actual malic standard presently applicable, Chief

Justice Warren’s concurring opinion, joined by twe other

Justices, found the evidence to disclose sufficient New York

Times actual malice constitutionally to support recovery:

14

The slipshod and sketchy investigatory techniques

employed to check the veracity of the source and the

inferences to be drawn from the few facts believed

to be true ar detailed at length in the opinion of Mr.

Justic HARLAN. Suffice it to say that little investi-

gative effort was expended initially, and no addi-

tional inquiries were made even after the editors

were notified by respondent and his daughter that

the account to be published was absolutely untrue...

I am satisfied that the evidence here discloses

that degree of reckless disregard for the truth of

which we spoke in New York Times and Garrison.

Freedom of the press under the First Amendment

does not include absolute license to destroy lives or

careers.

Id. at 169-70 (concurring opinion) (emphasis added).

Similarly, in the case at bar, the court of appeal, in find-

ings uncontradicted by the Louisiana Supreme Court, found

that: “The investigation [the defendants] conducted showed

clearly that the accusations which they intended to publish,

and did publish, about Kidder, were false.” 345 So.2d at 922.

As held in Airlie Foundation, Inc. v. Evening Star Newspaper

Co., 377 F. Supp. 421 (D.D.C. 1972):

But while it is well established that a failure to in-

vestigate, without more, is insufficient to give rise

to liability, once one has undertaken to conduct an

investigation he should not be permitted to ignore

with impunity the fruits of that investigation.

337 F. Supp. at 427-28. The decision of the instant defendants

to ignore all results of its investigation other than those which

tended to support their vendetta against the plaintiff clearly

amounts at best, to reckless disregard of truth or falsity.

The Court of Appeal additionally found, in a close anal-

ogy to the facts of Butts, that:

— —

— ä—ñ—ĩçͤ—ñ— — —

15

Plrior to publishing the accusation that Kidder,

while a member of the Baton Rouge police force,

operated a house of prostitution, the defendants had

positive information that there was no truth in the

rumor that Kidder was once involved in prostitution.

It appears from clear and convincing evidence that

Anderson, the reporter, joined with Childers and

Spillers, two disgruntled police officers, in a deliberate

effort to prevent the appointment of Acting Chief

Kidder to the position of Chief of Police. Anderson’s

own testimony reveals that his interest in getting

rid of Kidder was not that of an objective reporter

in bringing “the news” to the reading public.

345 So.2d at 930 (emphasis added). The Louisiana Supreme

Court did not reject this factual finding, although it did, in

a misinterpretation of St. Amant, apparently dismiss such

factors as having no bearing on actual malice. 354 So.2d

at 1309.

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

cert. denied, 396 U.S. 1049, rehearing denied, 397 U.S. 978

(1970), where it was held that there was sufficient evidence

of New York Times actual malice to support the plaintiff’s

defamation judgment against a magazine publisher, the court

held that the fact of investigation alone would not negative

actual malice. Where the results of such alleged investigation

were distorted, as here, to support the defendant’s position,

its import would, to the contrary, be to support a finding

of actual malice, 414 F.2d at 337.

If the Louisiana Supreme Court’s apparent construction

of the New York Times line of authority were to become ac-

cepted as authoritative, defamation recovery by public offi-

cial or public figure plaintiffs would, as a practical matter,

become impossible, in the absence of a very rare admission

by a defendant that he knew at the time of publication that

the statements at issue were false, or that he knew that he

had no information supporting his charges. See Field Research

16

Corp. v. Patrick, 30 Cal. App. 3d 603, 106 Cal. Rptr. 473, cert.

denied, 414 U.S. 922 (1973); Sas Jaworsky v. Padfield, 211

So.2d 122 (La. App. 1968).

Such, however, is not the law, as indicated by the large

number of cases, in the federal and state courts, applying the

rule that recovery is permissible in cases of knowing false-

hood or reckless disregard of truth or falsity. E.g., Mahnke

v. Northwest Publications, Inc., 280 Minn. 328, 160 N.W.2d 1

(1968) ; Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970);

Chase v. Daily Record, Inc., 83 Wash. 2d 37, 515 P.2d 154

(1973) ; Fopay v. Noveroske, 31 Ill. App. 3d 182, 334 N. E. 2d

79 (1975) ; Sprouse v. Clay Communications, Inc., 211 S.E.2d

674 (W.Va.), cert. denied, 423 U.S. 882, rehearing denied,

423 U.S. 991 (1975); Carey v. Hume, 390 F.Supp. 1026

(D. D.C. 1975), aff'd, 543 F.2d 1389 (2d Cir. 1976) ; Carson v.

Allied News Co., 529 F.2d 206 (7th Cir. 1976); Buckley v.

Littell, 539 F.2d 882 (2d Cir. 1976), cert. denied, 429 U.S.

1062 (1977); Appleyard v. Transamerican Press, Inc., 539

F.2d 1026 (4th Cir, 1976), cert. denied, 129 U.S. 1041 (1977);

Edwards v. National Audubon Society, Inc., 556 F.2d 113

(2d Cir.), cert, denied, US. , 46 U.S.L.W. 3390

(1977).

In the Mahnke case, as here, the defendant newspaper

printed a story relating to a policeman’s breach of duty, and

did so after being warned by a responsible official, here the

mayor of Baton Rouge, and there the police chief, that the

story was false. In affirming a judgment for the plaintiff,

the Mahnke court held as to this point:

There is nothing in the evidence to indicate

that Chief Winslow’s explanation that there had been

a misunderstanding was probed. Neither Captain

Hawkinson, Detective Quady, nor plaintiff gave their

version before the week-old occurrence was placed

on the front page of the afternoon newspaper. The

facts that the only news source contacted, Father

— — ——ꝛx——é—ᷣ—᷑ ER et ee

— —— — —

—— i 2 3 —

17

Meagher, had not been present at the meeting, that

he was then angry at plaintiff, and that the persons

actually present at the meeting could have been and

were not contacted, support the jury’s finding of reck-

lessness.

160 N.W.2d at 11 (emphasis added). The court noted the

parallel between its case and Butts, holding:

As we view it, the evidence considered by the

United States Supreme Court in the Butts case has

several parallels to the instant case. The court noted

that the Butts story was in no sense “hot news.” It

appears that another person present when defendant’s

informant supposedly overheard the conversation of

Butts upon which the defamatory story was based

was not even interviewed. The Supreme Court felt

that in the light of the seriousness of the charges

against Butts, the Post had ignored “elementary”

precautions. The charge that a police officer “flew

into a rage” upon learning of the fact that a com-

plaining mother went to a priest before she went to

the police and then refused to arrest the man who

had molested her 6-year-old daughter, is no less seri-

ous. Certainly “elementary” precautions were ignored

in the instant case as in the Butts case.

Id. at 12.

Sprouse is also strongly analogous to the case at bar, in

that it involved a situation where, as here, a newspaper

departed from its role of reporting, and commenting upon,

the news, and became a part of a scheme to destroy the repu-

tation of a public official through use of misleading head-

lines, and distortion of the facts. In this case, the defendants

joined with a group of disgruntled police officers to destroy

the reputation of their police chief, while in Sprouse, the de-

fendant joined with a candidate for governor to destroy the

reputation of an opposing candidate. The Sprouse court held:

18

The cases of Curtis Publishing Company v. Butts,

and its companion case, Associated Press v. Walker,

388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)

stand for the proposition that when a newspaper de-

parts from an attempt to report the news objectively,

the fact of such departure can be considered by the

jury and an appellate court in determining whether

there was willful disregard of truth.

211 S.E.2d at 687. The court further held, relevantly to the

instant case:

[I]t should be emphasized that the Court sustains the

jury’s finding of libel in this case because the plain-

tiff proved that the newspaper abdicated its tradi-

tional role of fairly reperting the news and became

a participant in a scheme or plan, the object of which

was to employ grossly exaggerated and patently un-

true assertions, embodied primarily in- headlines, to

destroy the character of Sprouse. It appears from the

evidence that not only did the Mail work closely with

the Moore campaign staff to discover the details of

the land transaction, but also that it fully cooperated

in disseminating the articles to other newspapers for

publication throughout the State. Under those cir-

cumstances the difference between the fair implica-

tion of the headlines as opposed to the supporting

factual recitation of the stories is evidence alone of

malice, which absent evidence to the contrary, sup-

ports the jury verdict.

Id. at 691-92. This case also involved misleading headlines,

in the story concerning the plaintiff's assessment, but it is

emphasized that the case at bar is substantially stronger than

Sprouse from the plaintiff’s point of view, in that, as dis-

cussed herein, there is clear and convincing evidence of inten-

tional falsehood on the part of the defendants.

As held in Edwards, supra, citing Goldwater:

It is equally clear... that a publisher who in fact

espouses or concurs in the charges made by others,

— — —— Ee —

eth z — —— P ee

19

or who deliberately distorts these statements to

launch a personal attack of his own on a public fig-

ure, cannot rely on a privilege of neutral reportage.

In such instances he assumes responsibility for the

underlying accusations.

556 F.2d at 120. It is respectfully contended that if the deci-

sion of the court below is permitted to stand, the validity of

the principle that “the constitutional guarantees can tolerate

sanctions against calculated falsehood without significant im-

pairment of their essential function,” Time, Inc. v. Hill, supra,

385 U.S. at 389 (Court’s emphasis), will be all but eliminated,

and the heretofore repudiated principle advocating absolute

immunity for intentional and reckless defamers will come to

prevail. The Court should grant certiorari to repudiate the

Louisiana Supreme Court’s misconstruction of Federal con-

stitutional law applicable to public official-public figure

defamation actions.

The importance of this case is magnified by the Louisi-

ana court’s holding that, under the circumstances of the case,

the defendant’s motion for summary judgment should have

been granted. 354 So.2d at 1310. While such holding was not

necessary to the decision of the case, it is nevertheless con-

tended that the question of whether, as held by the court

below, a public official-defamation plaintift must prove New

York Times actual malice with convincing clarity before going

to trial, is of such crucial importance to a determir ‘ion of

the rights of parties to such actions under federal constitu-

tional law as to justify a decision on the merits by this Court.

The argument for the granting of certiorari, and decision

on this question is buttressed by the conflict which has de-

veloped among the federal circuit courts as to whether New

York Times and its progeny requires the granting of a de-

fendant’s motion for summary judgment unless he can prove

New York Times actual malice prior to the commencement

of trial. The Louisiana Supreme Court ,quoting the opinion

of the dissenting judge in the court of appeals, 354 So.2d at

20

1310, quoting 345 So.2d at 948 (dissenting opinion), adopted

the view, most clearly articulated by the opinions of the fifth

and D.C. circuits, that normal rules relating to the granting

of summary judgments are not applicable in New York Times

defamation actions. E.g., Time, Inc. v. McLaney, 406 F.2d

565 (5th Cir.), cert. denied, 395 U.S. 922 (1969); Bon Air

Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970) ; Wasn-

ington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966),

cert. denied, 385 U.S. 1011 (1967) ;, Thompson v. Evening Star

Newspaper Co., 394 F.2d 774 (D.C. Cir.), cert. denied, 393

U.S. 884 (1968) ; Wasserman v. Time, Inc., 424 F.2d 920 (D.C.

Cir.) (concurring opinion), cert. denied, 398 U.S, 940 (1970).

In Keogh, a defamation action by a congressman, the court,

after recognizing the general rules, said:

[Sſummary judgment must be denied when there is

“doubt” whether an issue of fact has been raised,

and that summary judgment is not usually appropri-

ate when the issue raised concerns a subjective state

of mind.

365 F.2d at 967. In Bon Air Hotel, the fifth circuit quoted

with approval the concurring opinion in Wasserman, where

it was held:

“In my judgment New York Times Co. v. Sulli-

van makes actual malice a constitutional issue to be

decided in the first instance by the trial judge. ap-

plying the Times test of actual knowledge or reck-

less disregard of the truth. Cf. Jackson v. Denno,

378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

Unless the court finds, on the basis of pretrial affi-

davits, depositions or other documentary evidence,

that the plaintiff can prove actual malice in the

Times sense, it should grant summary judgment for

the defendant.

426 F.2d at 864.

In Guam Federation of Teachers v. Ysrael, 492 F.2d

438 (9th Cir.) cert. denied, 419 U.S. 872 (1974), however,

— —— f —— ́—k—ͤ— ———

21

the court, in reversing a judgment for the plaintiff in a New

York Times defamation action, rejected the view that the

trial judge in a New York Times defamation action had a

duty to weigh the evidence. The Ysrael court held, correctly

it is contended:

[W]ith respect, we are not persuaded by the second

phase of Judge Wright’s analysis in Wasserman

which suggests that in deciding these motions, the

trial court should judge the credibility of witnesses

and draw its own inferences from the evidence, We

think that in a libel case, as in other cases, the party

against whom a motion for summary judgment.

is made is entitled to have the evidence viewed in the

light most favorable to him and to all inferences that

can properly be drawn in his favor by the trier of

fact.

492 F.2d at 441.

It is respectfully asserted that the question presented by

this case, involving the right of a public official-defamation

plaintiff to recover if he can meet the standard of actual

malice established by the New York Times line of authority,

is a vitally important issue, transcending the interests of

the parties hereto. If the heretofore repudiated standard of

absolute immunity is to become the law, such principle should

be established by this Court, rather than by the lower court’s

erroneous interpretation of the opinions of this Court.

II. BY SUMMARILY OVERRULING THE JURY’S

VERDICT FOR THE PLAINTIFF WITHOUT FIND-

ING THAT THERE WAS NO CREDIBLE EVI-

DENCE IN SUPPORT OF SUCH VERDICT, THE

LOUISIANA SUPREME COURT VIOLATED THE

PLAINTIFF’S SEVENTH AND FOURTEENTH

AMENDMENT RIGHT TO TRIAL BY JURY.

The Seventh Amendment provides:

In suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of

22

trial by jury shall be preserved, and no fact tried by

a jury, shall be otherwise reexamined in any Court

of the United States, than according to the rule of

the common law.

It is the contention of the plaintiff that this right to trial by

jury is so basic and fundamental a principle of liberty and

justice as to be protected against state invasion by the due

process clause of the Fourteenth Amendment.

It is, of course, recognized that there is substantial early

authority holding to the contrary. E.g., Edwards v. Elliott,

88 U.S. 532 (1874); Walker v. Sauvinet, 92 U.S. 90 (1875);

and Wagner Electric Manufacturing Co. v. Lynden, 262 U.S.

226 (1923). As pointed out by Mr. Justice Brennan, however,

“these are rather ancient cases.” 12 N.Y.U.L. Cen. Bull. 5 at

6 (1963) (Address, November 16, 1962). Mr. Justice Brennan

further commented therein, indicating the reasons why the

question of the applicability of the Seventh Amendment to

the states is one of great national importance, and one which

should be considered by this Court:

But since 1922, hasn’t there been a lot of new,

and I say advisedly, different constitutional law made

over those 40 years, in the area of the application

of the Bill of Rights to the States.

[Ojnly few of the specifics of the Bill of Rights have

not been extended to the States. And the most not-

able not yet extended to the States, are the pro-

visions of the fifth amendment against double jeo-

pardy and self-incrimination and the provision of

the seventh amendment which we are considering

today.

Now I don’t think that we can be sure that the

process of extension by absorption has yet run its

course

— — ði⸗

23

I haven't had the time to do any research on

the question whether the 7th amendment has been

interposed against the constitutionality of statutes

of the foregoing kind. I can only repeat again, I

know of no such case that has come to the court in

my time. I am sure, however, that there is some con-

siderable American tradition in support of the right

to trial by jury in civil courts.

Id. at 6-7 (emphasis added).

It is also recognized that, in Melancon v. McKeithen,

345 F.Supp. 1025 (E.D. La.) (three judge court), aff’d sub

nom. Hill v. McKeithen, 409 U.S. 943 (1972); Davis v. Ed-

wards, 409 U.S. 1098 (1973), it was held, over a persuasive

and well reasoned dissent:

[Albsent “total incorporation” a civil jury trial is

not so implicit in the concept of ordered liberty in a

cooperative federalism as to be required of the state

by due process

345 F.Supp. at 1045. It is emphasized, however, that this

Court’s affirmance of Melancon was a summary one, without

opinion, and it has been recently held that “Because a sum-

mary affirmance is an affirmance of the judgment only, the

rationale of the affirmance may not be gleaned solely from

the opinion below.” Mandel v. Bradley, U.S. ——, 97

S.Ct, 2238 at 2240 (1977). The Mandel Court further held:

Summary affirmances and dismissals for want

of a substantial federal question without doubt reject

the specific challenges presented in the statement of

jurisdiction and do leave undisturbed the judgment

appealed from. They do prevent lower courts from

coming to opposite conclusions on the precise issues

presented and necessarily decided by those actions

.. , Summary actions, however, . . . should not be

understood as breaking new ground but as applying

principles established by prior decisions to the par-

ticular facts involved.

24

Accord, Edelman v. Jordan, 415 U.S. 651, rehearing denied,

416 U.S. 1000 (1974); Usery v. Turner Elkhorn Mining Co.,

428 U.S. 1 (1976). In Fusari v. Steinberg, 419 U.S. 379, re-

hearing denied, 420 U.S. 955 (1975), the Chief Justice criti-

cized the practice of using a district court opinion summarily

affirmed by the Supreme Court to define this Court’s judg-

ment, noting: ö

When we summarily affirm, without opinion, the

judgment of a three iudge District Court we affirm

the judgment but not necessarily the reasoning by

which it was reached. An unexplicated summary af-

frimance settles the issues for the parties, and is not

to be read as a renunciation by this Court of doctrines

previously announced in our opinions after full argu-

ment. Indeed, upon fuller consideration of an issue

under plenary review, the Court has not hesitated

to discard a rule which a line of summary affir-

mances may appear to have established.

419 U.S. at 392-93 (concurring opinion).

It is contended that this case presents an appropriate

vehicle for the Court’s consideration of whether the four-

teenth amendment permits the states to deprive civil litigants

of the fundamental right of trial by jury. It has been recently

noted that “the Seventh Amendment is one of the few remain-

ing provisions in the Bill of Rights which has not been held

to be applicable to the States.” Colgrove v. Battin, 413 US.

149 at 169 (1973) (Marshall, J., concurring). In Duncan v.

Louisiana, 391 U.S. 145, rehearing denied, 392 U.S. 947

(1968), this Court held, in construing the sixth amendment

guarantee of jury trials in criminal] prosecutions:

Because we believe that tria] by jury in criminal

cases is fundamental to the American scheme of jus-

tice, we hold that the Fourteenth Amendment guar-

antees a right of jury trial in all criminal cases

which — were they to be tried in a federal court —

would come within the Sixth Amendment’s guar-

antee.

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— — tine — —— — — —ẽ—— 2 —— 2 — aah

25

391 U.S. at 149. It is contended that the right to trial by jury

in civil actions is equally fundamental to the American scheme

of justice, and that the dissenting judge in Melancon, supra,

was correct in arguing:

I cannot subscribe to the view that the right to a

meaningful trial by jury in civil cases is not a funda-

mental right. No one could seriously question the

fact that the right to trial by jury in Federal Courts

is protected by the Seventh Amendment, and no one

could seriously question the fact that in the federal

system, the facts found by the jury may not be re-

examined by an appellate court except according to

the rules of common law. I believe that the right to

trial by jury as provided for in the Seventh Amend-

ment to the United States Constitution is as funda-

mental a right as those contained in the remainder

of the first eight Amendments, and that thus, the

guarantees of the Seventh Amendment should be held

to be operative on the States through the fourteenth

amendment. I believe that the Seventh Amendment

prohibits the States from granting a ~ight to trial by

jury in civil cases on the one hand, and then, on the

other hand, as is done in Louisiana, nullifying the

total effect of the jury trial by allowing the Appel-

late Judges to set aside the findings of the juries

simply because they personally do not agree with

those findings.

345 F.Supp. at 1062 (emphasis added).

It is significant that the Duncan court, in discussing

application of the Bill of Rights to the states, through the

fourteenth amendment, noted that, in contrast to earlier

cases, 3uch as Palko v. Connecticut, 302 U.S. 319 (1937)

which,

can be seen as having asked, when inquiring into

whether some particular procedural safeguard was

required of a State, if a civilized system could be

imagined that would not accord the particular pro-

tection.

26

391 U.S. at 149, n. 14, the more recent cases,

have proceeded upon the valid assumption that state

criminal processes are not imaginary and theoretical

schemes but actual systems bearing virtually every

characteristic of the common-law system that has

been developing contemporaneously in England and

in this country. The question thus is whether given

this kind of system a particular procedure is funda-

mental — whether, that is, a procedure is necessary

to an Anglo-American regime of ordered liberty.

Id. at 149-50, n. 14. In rejecting the assertion that the denial

of civil jury trials is unfair by pointing to foreign countries

which have abandoned such jury trials, the Melancon court,

345 F.Supp. at 1035, ignored Duncan’s holding that the par-

ticular procedure at issue — here a civil jury trial — must

be seen as fundamental within the American system of justice.

That such is the case with regard to the right of civil

litigants to trial by jury under the seventh amendment has

been repeatedly held from the earliest days of our legal sys-

tem. In Parsons v. Bedford, 3 Peters (28 U.S.) 433 (1830),

it was held:

The trial by jury is justly dear to the American

people. It has always been an object of deep interest

and solicitude, and every encroachment upon it has

been watched with great jealously. The right to such

a trial is, it is believed, incorporated into, and secured

in every state constitution in the union; and it is

found in the constitution of Louisiana. One of the

strongest objections originally taken against the con-

stitution of the United States, was the want of an

express provision securing the right of trial by jury

in civil cases. As soon as the constitution was adopt-

ed, this right was secured by the seventh amendment

of the constitution proposed by Congress; and which

received an assent of the people so generai, as to

establish its importance as a fundamental guarantee

of the rights and liberties of the people.

— . ⏑ W a ,

27

28 U.S. at 445. Mr. Justice Story further significantly held

in Parsons:

But the other clause of the amendment is still

more important; and we read it as a substantial and

independent clause. “No fact tried by a jury shall

be otherwise re-examinable, in any Court of the

United States, than according to the rules of the

common law.” This is a prohibition to the Courts of

the United States to re-examine any facts tried by a

jury in any other manner. The only modes known to

the common law to reexamine such facts, are the

granting of a new trial by the Court where the issue

was tried, or to which the record was properly return-

able; or the award of a venire facias de novo, by an

appellate Court, for some error of law which inter-

vened in the proceedings.

Id. at 447. If the right to a jury trial in civil cases was, as

held in Parsons, a “fundamental guarantee of the rights and

liberties of the people,” id. at 445, in 1830, it would indeed be

anamolous for this Court to decline to even hear an argument

that such fundamental guarantee must be made available to

state litigants in 1978.

In Gideon v. Wainwright, 372 U.S. 335 (1963), where

this Court overruled Betts v. Brady, 316 U.S. 445 (1942), in

holding that the sixth amendment right to the assist ce of

counsel was made applicable to the states by the fourteenth

amendment, the Court noted that prior to Betts, it had held

in Powell v. Alabama, 287 U.S. 45 (1932), that “the right to

counsel is of this fundamental character,” 372 U.S. at 342-

43, citing 287 U.S. at 68. The Gideon Court quoted Grosjean

v. American Press Co., 297 U.S. 233 (1936), where it was

held that, in Powell:

“We concluded that certain fundamental rights,

safeguarded by the first eight amendments against

federal action, were also safeguarded against state

action by the due process of law clause of the Four-

28

teenth Amendment, and among them the fundamen-

tal right of the accused to the aid of counsel in a

criminal prosecution.”

372 U.S. at 343, quoting, 297 U.S. at 243-44, Gideon then

held:

In returning to these old precedents, sounder we

believe than the new, we but restore constitutional

principles established to achieve a fair system of

justice.

372 U.S. at 344. Similarly, it is contended that the Court

should return to sounder precedents holding the civil jury,

and the guarantee against re-examination of facts found by

such jury, to be fundamental to liberty. Such a holding, in

light of present law as to incorporation would, as a corollary,

require a holding that the seventh amendment be applicable

to the states by the fourteenth.

The importance of the rights guaranteed by the seventh

amendment was pointed up in Chicago, Burlington & Quincy

He.. v. City of Chicago, 166 U.S. 226 (1897), where it was

held that the prohibition against re-examination of facts is

not confined to cases tried before juries in federal courts, but

“applies equally to a case tried before a jury in a state court,

and brought here . . from the highest court of the state.”

166 U.S. at 243-44, That case was cited with approval in

New York Times, 376 U.S. at 285, fn. 26, but distinguished

on grounds that the ban on a re-examination of the facts

“does not preclude us from determining whether governing

rules of federal law have been properly applied to the facts.”

Id. In this case, the plaintiff does not, of course, contest the

right of the Court to make such an examination, as, indeed,

the Louisiana Court of Appeal did in affirming the judgment

for him. 345 So.2d at 942. The objection here is that the Lou-

isiana Supreme Court went far beyond such function, and in

weighing the evidence, violated the plaintiff’s seventh amend-

ment rights.

In Dimick v. Schiedt, 293 U.S. 474 (1934), this Court

vigorously defended the fundamental importance of the civil

jury trial, holding:

The right of trial by jury is of ancient origin,

characterized by Blackstone as “the glory of the

English law” and “the most transcendent privilege

which any subject can enjoy.” (Bk. 3, p. 379) ; and, as

Jus ice Story said (2 Story on the Constitution §

1°79), “. . . the Constitution would have been justly

obnoxious to the most conclusive objection if it had

not recognized and confirmed it in the most solemn

terms.” With, perhaps, some exceptions, trial by jury

has always been, and still is, generally regarded as

the normal and preferable mode of disposing of issues

of fact in civil cases at law as well as in criminal

cases. Maintenance of the jury as a fact-finding

body is of such importance and occupies so firm a

place in our history and juurisprudence that any

seeming curtailment of the right to a jury trial

should be scrutinized with the utmost care.

293 U.S. at 485-86. The importance of the right to a civil

jury was again stated in Beacon Theatres, Inc. v. Westover,

359 U.S. 500 (1959), where it was held:

This long-standing principle of equity dictates that

only under the most imperative circumstances, cir-

cumstances which in view of the flexible procedures

of the Federal Rules we cannot now anticipate,

can the right to a jury trial of legal issues be lost

through prior determination of equitable claims.

359 U.S. at 510-11. Accord, Dairy Queen, Inc. v. Wood, 369

U.S. 469 at 472 (1962). In Curtis v. Loether, 415 U.S. 189

(1974), seventh amendment rights were considered suffi-

ciently important so as to require a jury trial for the de-

fendant in an employment discrimination suit under 42

30

U.S.C.A. § 3612. The Court regarded the considerations pecu-

liar to civil rights actions as “insufficient to overcome the

clear command of the Seventh Amendment.” 415 U.S. at 199.

This Court’s recent Sixth Amendment decision in Ballew v.

Georgia, -—— U.S. ——, 46 U.S.L.W. 4217 (1978), provides

further analogous support for the fundamental and basic

nature of the jury trial in the American system of justice.

What is at stake here is the right of all civil litigants,

as well as those party to defamation actions, to a meaningful

trial by jury, the outcome of which cannot be overruled merely

because a trial judge disagrees with the factual findings of

the jury. This is an issue of major national importance. As

held in Jacob v. City of New York, 315 U.S. 752 (1942):

The right of jury trial in civil cases at common

law is a basic and fundamental feature of our system

of federal jurisprudence which is protected by the

Seventh Amendment. A right so fundamental and

sacred to the citizen whether guaranteed by the

Constitution or provided by statute, should be jeal-

ously guarded by the courts.

315 U.S. at 752-53. In view of this Court’s frequent charac-

terization of the civil jury trial in such terms, taken in con-

junction with the Court’s use of barely distinguishable lan-

guage in holding particular features of the Bill of Rights

applicable to the states, e.g., Gideon v. Wainwright, supra,

372 U.S. at 342-43; Duncan v. Louisiana, supra, 391 U.S. at

148-49; Kiopfer v. North Carolina, 386 U.S. 231 at 223-26

(1967); and Washington v. Texas, 388 U.S. 14, at 17-18

(1967) it is clear that the time is ripe for consideration and

determination of the applicability of the seventh amendment

under these circumstances. This case, where the highest court

of a state has deprived a party of a jury verdict, on the ap-

parent basis of mere disagreement with the jury, presents

an appropriate vehicle for such determination.

31

CONCLUSION

Petitioners respectfully urge the Court to hear and resolve

the two highly important issues presented by this case. Each

of thesé issues, involving the Louisiana court’s erroneous con-

struction of the New York Times rule, and the application

of the fundamental constitutional right of trial by jury to

the states, is of a significance surmounting the rights of the

parties to this action. Each issue is clearly presented by the

facts of this case, and the determination of each will make

a major contribution to the advancement of a sound and con-

sistent body of constitutional law.

Respectfully submitted,

ORIGINAL SIGNED

ROB BY

Robert L. Kleinpeter

Attorney for Petitioner

P.O. Box 66443

Baton Rouge, Louisiana 70896

504-926-5093

32

PROOF OF SERVICE

I, ROBERT L. KLEINPETER, Attorney for Respondent

herein, and a member of the Bar of the Supre Co 0

the United States, hereby certify that on the e

of May, 1978, I served three copies of the petition for a

writ of certiorari on respondents, Capital City Press and Bob

Anderson, by mailing the same, through the United States

mail to counsel of record, Mr. Frank W. Middleton, Jr., P. O.

Box 2471, Baton Rouge, Louisiana, first class, postage pre-

paid.

All parties required to be served with copies of this

opposition have been served.

May A 1978.

ORIGINAL SIGNED BY

___ROBERT L. KLFINPETER

Robert L. Kleinpeter

33

APPENDIX A

HOWARD A. KIDDER

Versus

BOB ANDERSON AND

CAPITAL CITY PRESS, INC.

Number: 11,205

First Circuit Court of Appeal

State of Louisiana

ON APPEAL FROM THE NINETEENTH

JUDICIAL DISTRICT COURT, PARISH OF

EAST BATON ROUGE, STATE OF LOUISIANA,

HONORABLE ELVEN E. PONDER, JUDGE.

BEFORE: SARTAIN, COVINGTON AND LOTTINGER, JJ.

COVINGTON, JUDGE.

This is a defamation action by Howard A. Kidder, Acting

Chief of Police, against Bob Anderson, newspaper reporter,

and Capital City Press, Inc., the owner and publisher of the

Morning Advocate and State Times newspapers and the em-

ployer of Bob Anderson, for damages in the amount of five

and one-half million dollars, arising out of several newspaper

articles and editorials appearing in the newspapers, in one or

the other or both, from June 12, 1974, through August 8,

1974. The plaintiff alleged that the “offending statements”

published by the defendants were calculated to degrade him

and to hold him up to public ridicule in that they depicted

him, a law enforcement officer, as operating a house of pros-

titution, as engaging in illicit dealings with barroom pro-

prietors and gamblers, and as using the influence of his office

for personal gain.

The defendants denied that the “offending statements”

were defamatory. They also expressly pleaded constitutional

34

rights under the First Amendment of the Uuited States Con-

stitution, and truth, as defenses.

During the course of the proceedings, the defendants

moved for partial summary judgments, primarily based on

the failure of the plaintiff to show sufficient evidence of

“actual malice” to let the case go to the jury.

The motions for partial summary judgment were denied

by the lower court. Then, applications for supervisory writs

were made to the Court of Appeal and the Supreme Court

for review of the summary judgment denials. Both appellate

courts declined the applications for writs, finding no error

in the lower court’s finding of genuine issues of material facts

in dispute.

The case then proceeded to trial by jury. After an eight-

day trial, the jury returned a verdict in favor of the plaintiff,

awarding damages in the amount of $400,000.00. From the

judgment implementing the jury’s verdict, the defendants

have suspensively appealed.

SPECIFICATION OF ERROR NO. 1

The trial court properly denied both motions for partial

summary judgment. It is only when there is no genuine issue

as to a material fact that the mover is entitled to summary

judgment. LSA-C.C.P. art. 966. In ruling on such a motion,

it is not the function of the lower court to determine the

merits of the issues raised; its function is to determine whe-

there or not there is a genuine issue of material fact. Metoyer

v. Aetna Insurance Company, 278 So.2d 847 (La. App. 3

Cir. 1973).

In Batson v. Time, Inc., 298 So.2d 100 (La. App. 1 Cir.

1974), writ den. 299 So.2d 803, we had occasion to consider

a motion for summary judgment; and, in sustaining the lower

35

court’s rejection of a motion for summary judgment, we

acknowledged “the chilling effects of a lengthy and costly

trial” on First Amendment rights, and then remarked:

“Equally pertinent, however, is the well established

rule that in cases of this nature, the courts are most

careful to protect plaintiff's right to jury trial, when

disposing of a motion for summary judgment pur-

suant to F.R. Civ. P. Rule 56. In applying Rule 56,

the courts note the Rule's provision that, on trial of

a motion for summary judgment, plaintiff may not

rely upon his pleadings, but must, by affidavit or

otherwise, set forth facts and allegations which

establish the ex*stence of a genuine issue of material

fact. Also in applying Rule 56, the courts grant sum-

mary judgment where the pleadings, depositions,

answers to interrogatories, affidavits and admissions

disclose the absence of a genuine issue of material

fact.

“More importantly, the Federal cases have repeatedly

held that in a defamation action, as in other actions,

the adverse party against whom summary judgment

is requested is entitled to have all the evidence, depo-

sitions, affidavits and inferences reasonably drawn

from them, viewed in the light most favorable to

him in determining whether he has shown the exist-

ence of a genuine issue of material fact.”

The guidelines for the use of the summary judgment

procedure as authorized by LSA-C.C.P. art. 966 are well

established. They are succinctly stated in the case of Roy &

Roy v. Riddle, 187 So.2d 492 (La. App. 3 Cir, 1966), writ

ref. 249 La. 724, 190 So.2d 236, as follows:

“The courts have noted repeatedly that the summary

judgment remedy is not a substitute for a trial and

may not be resorted to when there is a genuine issue

of material fact which must be resolved. In passing

upon a motion for summary judgment, the function

of the court is not to determine the merits of the

36

issues raised, but rather only to determine whether

or not there is a genuine issue of material fact. To

obtain a summary judgment it is not sufficient to

prove that it is unlikely that the plaintiff may re-

cover, nor that the showing then made preponder-

antly inc‘cates there is no liability. The burden of

showing hat there is not a material factual issue is

upon the mover for summary judgment. All doubts

are to be resolved against the granting of a sum-

mary judgment and in favor of a trial on the merits

to resolve disputed facts.”

37

examined in the light of that standard is the same

as in all other cases in which it is claimed that a

case should not go to the jury. If the evidence, so

considered, measures up to the New York Times

standard, the case is one for the jury, and it is error

to grant a directed verdict, as the Trial Judge did

in this case.”

We also find the language of Whitaker v. Coleman, 115

F.2d 305 (C.A. 5 1940), particularly applicable to a case of

this nature:

Turning to the federal jurisprudence for guidance, we

find the Court of Appeals, Ninth Circuit, in Guam Federation

of Teachers, Local 1581, A. F. T. v. Ysrael, 492 F.2d 438 (C.A.

9 1974) stated:

“Summary judgment procedure is not a catch penny

contrivance to take unwary litigants into its toils

and deprive them of a trial, it is a liberal measure,

liberally designed for arriving at the truth. Its pur-

“However, with respect, we are not persuaded by

the second phase of Judge Wright’s analysis in

Wasserman which suggests that in deciding these

motions, the trial court should judge the credibility

of witnesses and draw its own inferences from the

evidence. We think that in a libel case, as in other

cases, the party against whom a motion for sum-

mary judgment, a motion for a directed verdict, or a

motion for judgment notwithstanding the verdict is

made is entitled to have the evidence viewed in the

light most favorable to him and to all inferences

that can properly be drawn in his favor by the trier

of fact. We think, too, that in such cases it is not

only not the duty of the judge, or of this court of

appeal, to weigh the credibility of the evidence, or

to draw inferences in favor of the moving party

(except, of course, where no contrary inference can

legitimately be drawn), but that neither the judge

nor this court on appeal has the authority to weigh

credibility or to choose among legitimate inferences

in such cases.

“The standard against which the evidence must be

examined is that of New York Times and its pro-

geny. But the manner in which the evidence is to be

— — —

pose is not to cut litigants off from their right to

trial by jury if they really have evidence which they

will offer on a trial, it is to carefully test this out,

in advance of trial by inquiring and determining

whether such evidence exists.“

We think too that 10 Wright and Miller, Federal Practice

and Procedure, Civil section 2712, pp. 387-389, Rule 56, places

the summary judgment in proper perspective:

“Since its impact is rather drastic, summary judg-

ment must be used with a due regard for its pur-

poses and should be cautiously invoked so that no

person will be improperly deprived of a trial of dis-

puted factual issues. As stated by the Tenth Circuit

in Avrick v. Rockmont Envelope Company (155 F.2d

568, 571, C.A.-10 1946): The power to pierce the

flimsy and transparent factual veil should be tem-

perately and cautiously used lest abuse reap nulli-

fication’.”

With the foregoing law in mind, we have reviewed the

pleadings, exhibits, affidavits and other evidence available for

consideration by the court on the motions for summary judg-

ment. The affidavits filed by movers do not measure up to

38

the standard set out by LSA-C.C.P. art. 967. They fail to

affirmatively show that the facts set forth in the affidavits

were matters within the personal knowledge of the affiants.

We said in Benoit v. Burger Chef Systems of Lafayette, Inc.,

257 So.2d 439 (La. App. 1 Cir. 1972):

“Therefore, when mover relies on the personal knowl-

edge of an affiant to establish the nonexistence of

a genuine issue of fact and fails to assert facts

which would affirmatively show the affiant’s com-

petency to testify to such facts, his proof of the

same fails by reason of the insufficiency of the affi-

davit. LSA-C.C.P, Art. 967.”

We find that the proof of the mover fails to establish

the nonexistence of genuine issues of fact in the instant case.

We agree with the trial judge that there were genuine

issues of materia] facts, even if we accepted movers’ affi-

davits, and that it was proper for the case to go to trial by

jury. The plaintiff's evidence was sufficient to meet the New

York Times standard. We interpret the Guam case as com-

pletely refuting the view of Judge Wright in Wasserman v.

Time, Inc., 424 F.2d 920 (D.C. Cir. 1970), followed in Bon

Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5 Cir. 1970).

There is no acceptance by the Federal courts that the court

must weigh or re-weigh the evidence or determine the credi-

bility of the witnesses, and that the proof must be with “con-

vincing clarity”. The function of both the federal and state

courts is to determine whether or not the plaintiff has pre-

sented a genuine issue of material fact from which a jury

could find that the publisher published the article with actual

knowledge of its falsity or with a reckless disregard as to

whether it was false, i.e., with “actual malice”. In the pre-

trial stage, the plaintiff certainly is not required to prove

“actual malice with convincing clarity” (as he must do in

order to prevail on trial per the New York Times standard),

because that would require a weighing of the proof, which

39

Guam says is not to be done by the trial judge. Rather, at

that stage of the proceeding, the plaintiff need only present

evidence which shows that there is a genuine issue of material

fact from which a jury could find actual malice.

Where the crucial fact in a case is a predominantly sub-

jective one, such as “actual malice” in the instant case, it

would seem tu us to be placing an unconstitutional burden on

a plaintiff to require him to file an “affidavit” based on per-

sonal knowledge” that the publisher of an alleged defamatory

statement did so with “actual malice”, and to prove this pre-

dominantly subjective factor by clean and convincing evi-

dence, submitted in a pre-trial procedure, under penalty of

forfeiture of his right to trial by jury in the absence thereof.'

We believe that it is better that an occasional publisher get

slightly frostbitten than that the cold-shoulder of injustice

be eternally turned toward the defamed public official, if it

can be truly said that any trial has a “chilling effect” on the

news media. We believe that the practitioners of the journal-

istic art are hardier souls than some of our esteemed breth-

ren believe. We believe that it would take more than a threat

of a libel action to still the voice of a newspaper or to blunt

the pen of a newswriter, or to dull the wit of either. We do

not presume that the John Peter Zengers have all faded into

the obscure pages of history.

We believe that if the First Amendment were repealed

tomorrow, the newspeople of this nation would not skip a

heartbeat or a deadline; they would continue to fearlessly

bring to their readers and listeners all the news that’s fit to

print and hear. To hold a newsverson accountable for his

transgressions is not to censor him, it is merely to make him

mindful of the awesome responsibility he has to the public. Ac-

countability is not a clarion call of “stop the press”; it is but

a whisper for respect for the people who make the news. After

all, it is not the first amendment that makes a newspaper

great; it is the front page.

49

We believe the trial court could only find on the basis

of the pleadings, exhibits, affidavits and other available evi-

dence that the plaintiff would have been able to prove “actual

malice” by clear and convincing evidence, and we agree with

the trial court that he should have been given the opportunity

to do so.

SPECIFICATION OF ERROR NO. 2

This assignment of error is the crux of the case. The

appellants contend that the jury erred as a matter of law in

finding liability on the part of the defendants, The basis for

this contention is that the jury did not properly apply the

New York Times standard in reaching its verdict.

We have reviewed the evidence, first, as a reviewing

court, to see if the jury committed manifest error in reaching

its verdict; and secondly, as a reconsidering court directed

by Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975),

to examine the evidence as a trier of fact, in order to render

a judgment based on the record. Our careful review of the

record convinces us that the jury’s verdict as to liability is

supported by ample and sufficient evidence, and the jury did

not commit manifest error in its verdict; and we are per-

suaded that the liability of defendants has been proven by

“clear and convincing evidence” within the New York Times

standard.

We are, of course, mindful that “in order for there to

be a free and vigorous press it must have ‘breathing space’

between the First Amendment on the one hand, and libel

actions, on the other hand.” See Carey v. Hume, 390 F.Supp.

1026 (U.S.D.C., D.C., 1975). Thus, under the New York Times

standard, a “public person” must show that the deiamatory

falsehood was published with “actual malice,” in order to

recover damages. See Note, 39 Tul.L Rev. at page 360 (1965).

41

It is succinctly stated in Gertz v. Robert Welch, Inc.,

418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), that:

“The New York Times standard defines the level of

constitutional protection appropriate to the context

of defamation of a public person.”

Since the plaintiff is admittedly a “public official,” the

New York Times standard is clearly applicable to determine

the defamatory nature of the publications which give rise to

the instant action for defamation.

The applicable standard was first enunciated by the

United States Supreme Court in the case whose name it

carries, New York Times Company v. Sullivan, 376 U.S. 254,

84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as follows:

“The constitutional guarantees require, we think, a

federal rule that prohibits a public official from

recovering 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.”

84 S.Ct. at 726.

In Carson v. Allied News Company, 529 F.2d 206 (C.A.

7 1976), the court commented:

Actual malice’ has become a term of art to provide

a convenient shorthand for the New York Times

standard of liability. It is quite different from the

common law standard of ‘malice’ generally required

under state tort law to support an award of punitive

damages. Whereas the common law standard focuses

on the defendant’s attitude toward the plaintiff

actual malice’ concentrates on the defendant’s atti-

tude toward the truth or falsity of the material

published.”

42

Although the New York Times case does not exactly

define “actual malice,” it does provide criteria for its ascer-

tainment, either knowledge of the falsity, or reckless dis-

regard for the truth will meet the test of “actual malice.”

In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13

L.Ed.2d 125 (1964), the United States Supreme Court “re-

fined its standard,” stating that “only 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 sanctions.” See Washington Post Com-

pany v. Keogh, 365 F.2d 965 (C.A., D.C. 1966).

In Garrison the Court emphasized:

“The test which we laid down in New York Times

is not keyed to ordinary care; defeasance of the

privilege is conditioned, not on mere negligence, but

on reckless disregard for the truth.” 85 S.Ct. at 218.

The Court, in St. Amant v. Thompson, 390 U.S. 727, 88

S.Ct. 1323, 20 L.Ed.2d 262 (1968), explained:

“The defendant in a defamation action brought by

a public official cannot, however, automatically in-

sure a favorable verdict by testifying that he pub-

lished with a belief that the statements were true.

The finder of fact must determine whether the pub-

lication was indeed made in good faith. Professions

of good faith will be unlikely to prove persuasive,

for example, where a story is fabricated by the de-

fendant, is the product of his imagination, or is

based wholly on an unverified anonymous telephone

call. Nor will they be likely to prevail when the pub-

lisher’s allegations are so inherently improbable that

only a reckless man would have put them in circu-

lation. Likewise, recklessness may be found where

there are obvious reasons to doubt the veracity of

the informant or the accuracy of his reports.”

43

In Carson, supra, at 209, the court explained:

“Examples of reckless disregard expressly given by

the Supreme Court include where a story is fabri-

cated by the defendant, is the product of his imagi-

nation, is based wholly upon an unverified anony-

mous telephone call, or where there are obvious

reasons to doubt the veracity of the informant or

the accuracy of his reports.”

Not only must the plaintiff in a defamation case meet

the standard of “actual malice,” he must bear the burden of

proving with convincing clarity that the statements were

false and that the false statements about him were made with

“actual malice” ; “actual malice” is never presumed, St. Amant

v. Thompson, supra.

Moreover, in St. Amant the court said that it is “clear

that reckless conduct is not measured by whether a reason-

ably prudent man would have published, or would have in-

vestigated before publishing. 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.

Publishing with such doubts shows reckless disregard for the

truth or falsity and demonstrates actual malice.” Thus, the

federal rule which the plaintiff must comply with to prevail

in the instant case can be stated: the plaintiff must prove

with clear and convincing evidence that these particular

defendants, with knowledge of falsity or a reckless disregard

as to whether the publication was true or false, have defamed

him by publishing a falsehood about him.

The test is stringent and the burden heavy on a public

person in a defamation action. Hence, in light of the standard

and the evidentia! burden on the plaintiff, to decide whether

the press published the “offending statements” with “willful

knowledge” or “reckless disregard” of their falsity is not an

easy task for the trier of fact. ‘

11

The central issue in this case is, thus, whether the facts

bring it within the rule of the New York Times case, as to

“constitutional malice” and “proof of convincing clarity.”

It is primarily the defendants’ contention that under the

federal standard there was no basis for liability against them,

and that the jury erred in finding them liable. The defen-

dants’ position is that, under New York Times Company v.

Sullivan, supra, they are not liable for the “offending state-

ments” made about Kidder even if they were false, because

plaintiff failed to prove with convincing clarity “actual mal-

ice” on the part of the defendants. We find their position

untenable.

The evidence fully substantiates that the defendants

acted in reckless disregard of the falsity or truth of the state-

ments which they published about Acting Chief Kidder. This

is not a case of a failure to investigate by the defendants. See

St. Amant v. Thompson, supra. The investigation they con-

ducted showed clearly that the accusations which they in-

tended to publish, and did publish, about Kidder were false.

The “calculated falsehood,” according to Garrison, puts “a

different cast” on the question, For example, prior to pub-

lishing the accusation that Kidder, while a member of the

Baton Rouge police force, operate a house of prostitution,

the defendants had positive information that there was no

truth in the rumor that Kidder was once involved in prosti-

tution. It appears from clear and convincing evidence that

Anderson, the reporter, joined with Childers and Spillers,

two disgruntled police officers, in a deliberate effort to pre-

vent the appointment of Acting Chief Kidder to the position

of Chief of Police. Anderson’s own testimony reveals that his

interest in getting rid of Kidder was not that of an objective

reporter in bringing “the news” to the reading public.

Bob Anderson testified as follows, regarding under-

cover investigations unrelated to Kidder:

— 2 — V i tne ——— •

45

“Q. And you knew that they (Childers and Spillers)

gave you information that they refused to give

to the Chief of Police, didn’t you?

A. Yes, sir, the Acting Chief of Police.

Q. And with this knowledge, knowing that they

were more loyal to you as a newspaper reporter

or investigative reporter than they were to their

employer, you accepted their assistance and con-

tinued these investigations.

A. Yes, sir.“

The facts show that in May, 1974 the defendant’s news-

paper had high praise for Kidder and congratulated the Mayor

for making such a good choice for the command of the Baton

Rouge Police Department. In an editorial, in the State Times

on May 2, 1974, the following comments were made:

“CHANGE IN COMMAND

“Lt. Col. Howard Kidder, as acting Chief, now has

immediate command of the Baton Rouge Police De-

partment. The designation of him by Mayor-President

Dumas is related to the current hospitalization ab-

sence of Chief Rudolph Ratcliff and the latter’s pub-

licly proclaimed intention to leave the city depart-

ment in a few weeks to become a candidate for

Sheriff in Livingston Parish, his homeground.

“Col. Kidder is an intelligent man, whose police career

runs the gamut from beat patrolman to the acting

Chiefship he now occupies. Presumably the ‘acting’

will be dropped with the formal departure of Chief

Ratcliff. Col. Kidder has long demonstrated excep-

tional ability as an administrator, without having lost

touch with the very human problems of the officer

on patrol in night’s lonely hours.

“On the record he already has behind him, acting

Chief Kidder will maintain an ‘open door’ office to

46

department, press and to the public at large. What

he says, he means; what he means, he says.

“The mayor-president had some multiple choices in

meeting the police department contingency at hand.

Without derogation to any of the others, the choice

made was a good one.”

Then, a complete about-face was taken by the press. There

followed a series of newspaper stories attacking Acting Chief

Kidder, which form the basis of this lawsuit: ter newspaper

articles or pictures and one editorial, copies of which were

offered in evidence by the plaintiff. These articles, and the

balance of the evidence in the case, can be grouped into five

subjects for analysis and discussion. (Several subjects or

stories were covered by similar articles in both the morning

and afternoon newspapers). The five subjects, and the articles

pertaining to each, are:

1. Barroom Protection:

“Statements Say Police Officials Protected Gambling,

Barrooms”, an article appearing in the Sunday Advocate on

July 14, 1974.

2. Assessments on Mr. Kidder’s Property:

“Kidder-Owned Duplex“, a picture and caption appearing

in the State Times on July 17, 1974.

“Kidder Rental House Got Cut in Assessment”, article

appearing in the State Times on July 17, 1974.

Policeman's Property”, a picture and caption appearing

in the Morning Advocate on July 18, 1974.

3. Harrassment of a Police Officer:

“Harrassment Is Claimed By Officer“, article appearing

in the Morning Advocate on July 17, 1974.

47

“Officer Says Job Change Harrassment”, an article ap-

pearing in the State Times on July 17, 1974.

4. Involvement In A House of Prostitution:

“Kidder Reported Once Involved in Prostitution”, an

article appearing in the Morning Advocate on August 8, 1974.

“Kidder Reportedly Was Bawdy House Operator“, an

article appearing in the State Times on August 8, 1974.

5. Police Uniforms:

“Baton Rouge Police Uniforms Criticized”, an article

appearing in the Morning Advocate on June 12, 1974.

1. Barroom Protection:

This is a lengthy article written by Anderson which ap-

peared in the Sunday Advocate, on July 14, 1974. The first

four paragraphs of this story contain a general summary of

the information and reports contained in the remainder of

the story. These first four paragraphs read as follows:

(1) “Acting Police Chief Howard Kidder and several

other high police officials have a history of pro-

tecting some barrooms and gambling operations,

according to statements from police officers and

other informed sources.

(2) “Allegations of payoffs and gratuities are also

contained in the statements.

(3) “Among the statements are notarized affidavits

from two barroom employees who say they have

witnessed Kidder receiving free liquor and signed

statements from a number of police officers who

say they have been stopped from making cases

against certain barrooms.

(4) “Statements from other officers recount being

told by gambling and barroom figures of payoffs

48

and gifts they have given Kidder and other

officers.”

Paragraphs five and six relate that various statements

have been given to state and federal investigatory agencies,

and read as follows:

(5) “The Morning Advocate, with the consent of the

persons who have given the statements, has

turned the statements over to state Attorney

General William Guste’s office, which is cur-

rently investigating corruption and influence

peddling in East Baton Rouge Parish.

(6) “Copies of the statements have also been given

to U.S. Attorney Doug Gonzales.”

Paragraph seven relates that the District Attorney, had

rescued himself from conducting an investigation, and reads

as follows:

(7) “District Attorney Ossie Brown recused him-

self from investigation of alleged wrongdoing

by local officials in May when two police officers

charged that Brown and Kidder had attempted

to obstruct their investigation into such mat-

ters.”

Paragraphs eight through eleven read as follows:

(8) “An affidavit from one barroom employee tells

of Kidder coming into the lounge and accepting

two cases of free liquor; the employee recounts

being told by the owner that the man was Kidder

and being instructed not to say anything about

it to anyone.

(9) “That affidavit, supported by an affidavit from

a second employee of the same establishment, »

recounts another incident in which Kidder and

a young woman had several drinks with the

owner, after which Kidder was presented with

bottles of liquor, all without charge.

49

(10) “Most importantly, that incident occurred since

Kidder has become Chief, the employees say.

(11) “One of the employees states that the owner of

the establishment has said they have nothing to

worry from the law because of their relationship

with Kidder.”

The evidence pertaining to the “Barroom Protection”

aspect of the case shows with convincing clarity that the

defendants’ investigation led them to the conclusion that the

charges against Kidder were based solely on rumor and state-

ments of witnesses who had no evidential basis for their accu-

sations against Kidder. There is clear and convincing evidence

that the “Barroom Protection” story was of doubtful truth-

fulness and that the defendants’ investigation led them to this

conclusion; yet, they chose to publish the rumors as though

they were substantiated facts.

In spite of the fact that Anderson admitted being aware

of a press conference called by the Mayor during which

the Mayor informed the news media that there was nothing

against Kidder but rumors, all of which had been thoroughly

investigated and found to be baseless, Anderson proceeded to

obtain certain written statements “in support” of his story.

Interestingly enough, Childers and Spillers were with him

when he interviewed 15 to 20 different persons.

The statements obtained by Anderson-Childers-Spillers

fail to substantiate the “Barroom Protection” charges against

Kidder. Not one iota of credible evidence connected Kidder

with any illegal protection racket.

Exhibit D-1 is an affidavit by Annette Kelly relating an

instance when she says she saw Madge DeSoto at the Saville

Bar give Kidder and a woman, supposedly, Joan Dipoala, some

unopened fifths of liquor, and D-2 is a statement obtained

from Yvonne Kelly, a twin sister of Annette Kelly. Madge

50

DeSoto testified that she had known Kidder as an officer for

some 20 years and that her business, Saville Bar, situated at

2231 North Foster Drive, Baton Rouge, Louisiana, was next

to the Paramount Sheet Metal Company which was owned by

Vic Filardo and Rosemary Paccacio, who are the brother-in-

law and sister-in-law of Kidder. Madge DeSoto related that

Kidder was in her bar shortly after becoming Acting Chief

of Police, together with his wife, and that she gave a bottle

of Kahlua to Mrs. Kidder and also an empty bottle which

had an odd shape to add to Mrs. Kidder’s bottle collection.

She stated that nothing was given to Kidder and at that time

neither of the Kelly sisters were in the bar. She also stated

that she always charged Kidder for anything he got in her

bar, and that she ran a small neighborhood bar, did not vio-

late the law, and did not stay open late, so as to need any

protection from any law enforcement officer. One of the Kelly

sisters testified that Madge DeSoto didn’t do anything which

would require police protection, inasmuch as the bar did not

stay open late, and did not have any gambling or prostitutes

on the premises.

Exhibit D-3 is a statement obtained from officer Larry

Rogers, a patrolman, about an incident which occurred in the

fall of 1972 when Mario Vaccaro supposedly told detectives to

do “detective work” and that he would take care of the “uni-

form work”, none of which related to Howard A. Kidder.

Exhibit D-4 is a statement of Police Detective Buller, relating

to an incident which occurred at the Alibi Lounge on Florida

Street when Mario Vaccaro was present, and also another

incident involving another lounge some four or five years

earlier, which again did not relate to Kidder. Exhibit D-5 is a

statement from Officer Crittenden, relating to an occurrence

which took place, either in 1971 or 1972, involving Howard

Dixon, Lt. Jeter and Capt. Vaccaro at the Tijuana Club, but

again did not involve Kidder.

Exhibit D-6 is a statement obtained from Officer Cain

51

which relates to a bar being open after hours in 1972, and a

conversation he had with City Councilman Delpit, and is un-

related to Kidder.

Exhibit D-7 is a statement of Frank Fuentes, a Baton

Rouge patrolman, with reference to a statement allegedly

made by Jim Lemming to the effect that it was going to cost

him more now that Kidder was Chief of Police, and that he

built Kidder’s swimming pool with “other” people’s money.

In response to this, Lemming testified that the swimming

pool came up in a con, ition when his mother was present

and she, in a bragging way about her son, made a statement

to the effect that Lemming had built the pool; that he had

known Kidder casually for some fifteen years: and that Kidder

had never paid him anything and there was no reason to pay

him anything. Insofar as the swimming pool was concerned,

Lemming testified, and this was verified by responses to

interrogatories propounded to Kidder, that Kidder paid for

his swimming pool and that it was built by Southern Gunite

and that the work was done by his step-father, John Wilbanks.

Exhibit D-8 is a statement from Samuel Pruet and relates to

an incident when Wingate White was Chief of Police and

Kidder was “Night Chief” and supposedly someone told Pruet,

other than the individual supposedly involved, that Aaron

McGuffery was paying Kidder. Anderson testified that Mc-

Guffery was called prior to printing of the story and that he

denied paying Kidder for protection.

Exhibit D-9 is a statement from Officer Hilburn, and

relates to an incident about not closing bars on advice of Cap-

tain Vaccaro in the autumn of 1970 through the spring of

1973. Exhibit D-10 is a statement of Officer Waller, relating

to an incident at the Big Four Bar in 1970, which did not

relate to Kidder. Exhibit D-11 is an investigation report in-

volving an incident at the Famous Door Bar, which did not

relate to Kidder. Exhibit D-12 is a letter of April 30, 1974,

transferring and promoting Rufus Stanley Trigg to Lieutenant

52

Colonel. Exhibit D-13 is a letter dated April 30, 1974, trans-

ferring Captain Vaccaro from the patrol division to the detec-

tive division. Exhibit D-14 is a statement obtained from Greg

Phares, relating to a statement by Captain Vaccaro and when a

statement was made about Vaccaro and Dr. Moody supposedly

running house of prostitution, at which time Vaccaro cor-

rected the statement and said it was supposed to be he and

Kidder who ran the house of prostitution. Vaccaro further

stated that he was merely kidding; that it would have been

impossible for anyone on the police force to own or operate

a house of prostitution and that he had nothing to do with

operating or owning a house of prostitution, and that Kidder

certainly did not have any such ownership or interest.

Exhibit D-16 is a memorandum of the Baton Rouge Police

Department from Major Font to Patrolman Childers trans-

ferring him from the intelligence division to traffic. Exhibit

D-17 is a letter from Kidder to Childers transferring Childers

from the intelligence division to the traffic division. Exhibit

D-18 is a letter from Captain Satterwhite to Childers assigning

Childers to office duty. Exhibit D-20 is a statement obtained

from Wayne Rogillio relating a story about Dr. Moody exam-

ining prostitutes, and also a statement supposedly made by

Mrs. McDuff to the effect that Fred McDuff gave Kidder an

ccasional fifth of whiskey. Exhibit D-30 is an interview by

Spillers with Tom Myers, a former policeman who said that

Kidder was paid off by Saltz the Tailor, who had a bookie

shop at 442 Main Street. This was refuted by Saltz, who

testified that he had been in the tailoring business since 1941,

when he left the Post Office, and he operated a tailor shop

at 442 Main Street and has never been involved with gambling

or booking. Exhibit D-31 is an interview conducted by Spillers

and Crittenden for the Police Department, with Sgt. Boyd,

relating a story to the effect that Boyd raided a house of

prostitution that allegedly was run by Kidder, but he found

no evidence of this allegation. Exhibit D-33 is an interview

conducted by Childers with Jim McBride, a brother-in-law of

53

Howard A. Kidder. Anderson used parts of this statement,

although Anderson knew that he (McBride) had had major

brain surgery, which affected his memory.

Exhibit D-34 is an interview of Ken Wallace, relating

to the payment for certain public records. N

At trial, the defendants offered additional evidence con-

cerning the general subject of payoffs and protection, but

which had not been included in the articles sued upon. Willie

Casing, a long-time patron of Fillup’s Tavern, testified that

he gambled at Fillup’s Tavern from 1954 until about a year

before the trial, on a weekly basis. He testified that the house

cut the game which was held in the gambling room in a room

next to the bar. He had seen Kidder in Fillup’s a number of

times. He stated that Kidder would go into the office with

Rebowe, but he didn’t know what transpired between them.

There was more testimony in a similar vein, that tends

to weaken the defense rather than strengthen it, because this

testimony definitely bolsters the position that Anderson knew

that the protection charges were based solely on rumor.

2. Kidder Assessment:

The evidence on the question of the “Kidder Assessment”

is rather insignificant from both the plaintiff’s and the de-

fendants’ viewpoint. If anything, it substantiates Kidder’s

contention that the defendants were out to “get” him. The

reader is meant to believe that Acting Chief Kidder took

some sinister advantage in obtaining a reduction in his tax

assessment. The “Kidder Assessments” publications appeared

within a few days of the “Barroom Protection” story. A photo-

graph was shown in the State Times newspaper on July 17,

1974, with the caption “Kidder-Owned Duplex.” The caption

beneath the photograph reflected that Acting Chief Kidder

owned the duplex and that he had caused its assessment to

be reduced by the Assessor’s Office from $3,300 to $2,300,

54

resulting in a decrease in taxes from $186.62 to 8115.92 an-

nually. The photograph was followed by an article in the State

Times on July 17, 1974, with the headline “Kidder Rental

Houses Got Cut in Assessment.” Then, on July 18, 1974, a

photograph appeared in the Morning Advocate with the cap-

tion “Policeman’s Property.” The caption under this photo-

graph pointed out that Kidder owned several parcels of land

in Baton Rouge, including his home, assessed as $4,200, and

a rental-house, which had its assessment reduced from $2,350

to $1,350.

The testimony of Douglas L. Manship' concerning the

assessment publications shows that no photograph of any of

the homes of other local public officials had ever been pub-

lished in the newspaper in connection with tax-assessment

reductions. William B. McMahon, a reporter for Capital City

Press, testified that he undertook to write the articles on his

own initiative after discussing Kidder’s financial situation

with Anderson and Spillers. He stated that he obtained all of

the ownership, mortgage, and assessment information from

the public records. He checked the other assessments in the

neighborhood and found no similar reductions in assessments.

McMahon stated that to his knowledge there was nothing

untruthful in the article. McMahon then testified that Kidder

took exception to the stories, and Kidder’s reply was published

in the State Times on July 18, 1974, and in he Morning Ad-

vocate on July 19, 1974.

The plaintiff called Frank Granger, an employee of the

Assessor’s Office, who had testified that the reductions in

Kidder’s. assessment was handled through regular channels.

Kidder asked for reductions on three or four parcels of land.

The Assessor’s Office considered the request and reduced two

of them. Granger testified that Kidder was treated no differ-

ently than any other taxpayer. Kidder testified that his was

a routine request for reduction, because the duplex’s condition

55

had deteriorated, as well as the neighborhood in which the

other rental property was located.

3. Harrassment:

The two articles dealing with “Harrassment” appearing

in both newspapers on July 17, 1974, just illustrate the involve-

ment of the newspapers with Officer Childers. There was no

basis in fact for the newspapers to level harassment charges

against Kidder or the Police Department solely on information

furnished by the complaining policeman. The facts show that

what Childers was complaining of was his transfer from a

plain-clothes officer in the intelligence division to a beat

patrolman in traffic division. At the time he wrote the article

concerning Childers in the Morning Advocate, Anderson knew

of the animosity of Childers toward Kidder; he knew that

Childers (and Spillers) were furnishing material to him

(Anderson) about investigations which Childers would not

even give to the commander of the Police Department, Acting

Chief Kidder.

4. Police Uniforms:

With regard to the “Police Uniforms” publication, Ander-

son testified that the article was written by him based on a

newscast made by John Spain over WBRZ-TV‘. Anderson had

no independent source for the article, and it was merely a

re-write of the newscast, giving credit in its text to WBRZ-

TV as the sole source. The article standing alone is of no sig-

nificance. Taken in conjunction with the later articles attack-

ing Chief Kidder, the article appears to be the forerunner of

a series of articles impugning the integrity, morality and

honesty of Acting Chief Kidder, since shortly thereafter the

“offending statements” were published by the defendants.

The evidence shows that the activities of Kidder in con-

nection with the purchase of the uniforms were not portrayed

accurately by the news media. There was nothing unethical

56

or irregular about his activities. The bids were not handled

by Kidder, but through the Baton Rouge Central Purchasing

Office, and the bid accepted finally was the only bid properly

submitted.

5. House of Prostitution Involvement:

The two August 18, 1974, articles charge Kidder, Captain

Vaccaro and another police officer, now retired, with having

operated a house of prostitution while members of the police

force in the late 195078.

Also, on August 18, 1974, an editorial appeared in the

Morning Advocate entitled “MAYOR’S INSISTENCE JUST

DOESN’T HOLD,” which reads in part as follows:

“The Morning Advocate today has published another

in a series of serious allegations against Acting Chief

Kidder. The allegation is that Kidder and two other

officers operated a house of prostitution in the late

1950’s and possibly longer. This is a serious charge

and this newspaper would not and does not make it

lightly. The charge is serious enough and well-

founded enough to warrant public knowledge and con-

sideration.

“This allegation together with others made in the

recent past concerning Kidder’s conduct as a police

officer make it imperative that Kidder no longer be

co usidered for the post of Chief of Police. The other

charges referred to include taking payoffs for pro-

tecting certain bar owners from the law. The charges

come from trustworthy members of the police depart-

ment and from witnesses outside the department.”

With reference to the “Kidder Prostitution House” charge,

Wesley Ringgold, a lifetime resident of the area, stated that

there was a house of prostitution at 1201 South 13th Street,

which was run by Camille Chase from 1935 until she died

some three or four years ago. Ringgold stated that he had

57

known Kidder since about 1950 and that Kidder had nothing

to do with the “house” at Julia and 13th Streets.

Additionally, Ringgold was familiar with Macie Lamotte,

who owned the Apex Club and a place on Braddock Street.

Ringgold stated that he never, at any time, saw Kidder come

or go from the place across the street owned by Camille Chase.

In connection with the closing laws and the selling of liquor,

Ringgold testified he operated his place as a social club, and

that “social clubs” were permitted to operate as a “country

club,” or other clubs, in order that the black community could

have a place to socialize.

The testimony of Macie Lamctte was by written interro-

gatories, and he stated that Howard Kidder never had any

connection, directly or indirectly, with any business operated

at the Braddock Street address.

To further refute the allegation that Kidder operated or

had an interest in a house of prostitution, Colonel Sliman of

the Sheriff’s Office testified that he had worked as a partner

with Kidder while with the Baton Rouge Police Department

in the early 1950’s and that he participated in the raid on the

house located at 1510 Braddock Street, which raid occurred

in November of 1953. Sliman also testified “I’ve never had

any information to the effect that Kidder was connected with

a house of prostitution.” Also, Malcolm Ballard, who started

with the Baton Rouge Police Department in May of 1949,

testified that he had known Kidder since they were partners

in the detective division during the years 1951-1953, and that

he had never picked up any whiskey for Kidder, and that he

never knew or heard of Kidder owning, operating, or having

any interest in a house of prostitution.

Further, Lt. Col Trigg testified that he started with the

Baton Rouge Police Department in 1945, and has known How-

ard Kidder for more than 25 years. Lt. Col. Trigg testified

58

that the police department raided Camille Chase’s house on

several occasions, but that she operated whenever she could

get by. Additionally, he stated that Kidder had nothing to

do with the “house” at Julia and 13th Streets and that the

“house” situated at 1510 Braddock Street behind the Apex

Club was raided on one occasion and closed down. Lt. Col.

Trigg participated in the raid on the house at 1510 Braddock

Street, which was led by Captain Duhon. Lt. Col. Trigg testi-

fied positively that Kidder had nothing whatever to do with

the opeartion of a house of prostitution.

Captain Vaccaro testified that he started with the Baton

Rouge Police Department in 1947, that at the time there were

32 men on the Baton Rouge Police force, and Vaccaro said he

knew that there was a house of prostitution at Julia and 13th

Streets, operated by Camille Chase, which was raided on a

number of occasions by the police. He further said that in

1953 a house of prostitution opened on Braddock Street, run

by a man called Tony“. Capt. Vaccaro also testified that he

knew Dr. Moody well and that they were friends, Additionally,

he said that Tony told him that he had been sending his

“girls” to New Orleans for medical check-ups, but would like

to have a doctor in Baton Rouge. Vaccaro said that he went

to Dr. Moody and personally asked him about examining the

“girls” for Tony. Capt. Vaccaro testified that on one occasion

he rode with Kidder to Dr. Moody’s offiec, and that Kidder

advised him (Vaccaro) that Capt. Duhon had instructed him

(Kidder) to find out if Dr. Moody was actually examining

“girls” for this house. Capt. Vaccaro told Kidder that since

he (Vaccaro) knew Dr. Moody, he would talk to him about the

situation. Thereafter the house was raided by Capt. Duhon’s

men. With reference to police activity around these houses,

Capt. Vaccaro testified:

“Q. Now, back in those days did detectives occasion-

ally go to those places or check those places?

59

A. Some of us went to them quite often, businesswise

I guess you'd say or trying to get information.

In other words, in those days you were only as

good as your source of information. In most of

these places like that is where you got most of

your information from.”

Additionally, Capt. Vaccaro testified that in those days

you didn’t raid one of those houses, unless you were ordered

to do so, and when interrogated as to who would set up the

raids he answered:

“A. I guess it had to be Chief Duhon. He was the

honcho in those days. He didn’t tell us too much,

you know, we were just patrolmen.

Q. Is that what you and Kidder were in those days?

A. Yes, sir, putrolmen.

Q. Did you and Kidder have anything to do with ope-

rating of those houses at all?

A. No, sir.

Q. Was there any way you could operate a house?

A. No way in the City of Baton Rouge especially in

those days. Like Chief Duhon, like you say they

had more information on those places than we

did.”

Howard Kidder testified that he had never been in the

house at Julia and 13th Streets, but that he had been in the

house at 1510 Braddock on two occasions, It was his testi-

mony that he was assigned to work this place by Capt. Duhon,

and that he contacted Macie Lamotte about this, that Tony

from New Orleans ran the place. Further, Capt. Duhon di-

rected him to find out if Dr. Moody was examining the “girls,”

and Vaccaro informed him that he would talk to Dr. Moody

about the situation. Vaccaro told him that Dr. Moody was

60

examining the “girls,” and that there was no violation of the

law, which he (Kidder) reported to Capt. Duhon. Thereafter

the house was raided based upon this information.

The publications with r “erence to Kidder to operating a

house of prostitution and pr: ecting barrooms are, beyond any

question, false. Anderson ki.ew that Kidder had an admini-

strative job on the inside of the police department from 1962

to 1974, or until he was appointed Acting Chief of Police, and

that all the information concerning prostitution activities and

protection of barrooms started, and ended, with rumors. In

fact, all of the information obtained by Anderson concerning

Kidder originated, and remained clothed, in rumor. Although

Anderson investigated these rumors for two and one-half

months, he found not one positive evidential fact that Kidder

was involved in a protection racket, or running a house of

prostitution.

Anderson denied that he ever threatened Dr. Moody to

get information frein him. On the other hand, Dr. Moody

testified that Anderson was going to write him up as a co-

conspirator if he (Moody) didn’t talk to him, Anderson con-

ceded that Dr. Moody never actually told him that Kidder was

operating a house of prostitution, and Anderson said “I don’t

think he used those words” but that it was only Anderson’s

interpretation of Dr. Moody’s remarks. Thus, Anderson’s credi-

bility was at issue.

Of striking importance is the testimony of Childers, who

admitted that he objected to being ordered to terminate an

investigation, which he had undertaken on his own behalf for

a friend, and he knew that the same matter had been handled

by Col. Dumigan; and, further, that he was told that if he

wanted to continue the investigation he could go to the Dis-

trict Attorney’s Office to file charges. Jane Jarreau testified

that she knew Childers by his nickname “Blue”, but did not

know Kidder, and that Childers said to her that he was going

61

to get“ Kidder. Although present in court at the trial, former

officer Spillers did not testify.

Mayor Dumas testified that he appointed Howard Kidder

Acting Chief of Police in April 1974, that he had previously

had an investigation made, and that Kidder was “clean.” At

the time of the appointment, Mayor Dumas gave Kidder com-

plete control of the police department, and thereafter he

received a petition from over 250 officers in the police depart-

ment, Exhibit P-15, praising him on the appointment of Kid-

der to Chief of Police.

Dr. Moody admitted the following:

“I had a personal problem, vindictiveness that went

way back against Mr. Kidder. It had nothing to do

with anything that’s been written in the newspapers

about him, probably the same thing that I read yes-

terday that Mr. Paul had a personal problem. He had

an opportunity to take it ovt on Mr. Kidder and looked

like he took it out on Mr. Kidder and I did the same

thing I suppose. It’s a terrible way to do something

but I figure I got a personal problem off of my

chest and just went about it the wrong way.”

Further, Dr. Moody admitted that he had no knowledge

that Kidder was involved in prostitution.

James H. Hughes, Managing Editor of the State Times,

admitted that perhaps there was some jealousy that existed

against Kidder, which could have prompted some of the

rumors. He did not personally get involved because “I wasn’t

convinced one way or the other.”

We find that the jury on the record presented here could

find the defendant’s publication to have been made with reck-

less disregard of whether the statements therein were false

or not. Several factors permit this finding: Under all the cir-

cumstances the publications were needlessly false. The only

62

purpose in publishing these stories was to bring public pres-

sure to bear on the Mayor to “get rid” of Acting Chief Kidder.

The stories were given the most controversial view possible,

and were deliberately slanted to portray Acting Chief Kidder

as totally unfit to be a police officer.

SPECIFICATIONS OF ERRORS NOS. 3 AND 4

These assignments of error can be dealt with together

since they both are concerned with the trial court’s refusal to

grant a directed verdict at the end of the plaintiff’s case and

again at the close of the evidence. The defendants moved for

the directed verdict on the ground that the plaintiff had

failed to produce sufficient evidence to justify a jury finding

of “constitutional maiice.” The trial court refused to consider

the motions for directed verdict on the ground that there was

no applicable Louisiana procedure for such a motion.

We agree with the trial court that our Code of Civil Pro-

cedure does not provide for a directed verdict. There is no

need of a motion for directed verdict in this state. The lack

of necessity for such a procedural device is clearly explained

in the Preliminary Statement, Chapter 7, Book 2, Title 5, Jury

Trial, as follows: “(T)here is no need for any elaborate system

of controls over the irresponsibilitics of the jury, since the

later’s finding of fact or award of damages may be set aside

if the appellate court concludes that these are not supported

by a preponderance of the evidence (or, in cases of this nature,

clear and convincing evidence.) For these reasons, this Code

does not embody the excellent jury controls to be found in the

Federal. Rules of Civil Procedure, and in the procedural sys-

tems of other states based thereon. These controls are badly

needed in the jurisdictions which have adopted them. They

would serve no particularly useful purpose in the civil pro-

cedure of Louisiana.“ See Joseph v. Tri Parish Flying Service,

Inc., 201 So.2d 321 (La. App. 3 Cir. 1967).

Although the appellants concede that this States does

not have the procedural] device known as the directed verdict,

State v. Placid Oil Company, 274 So.2d 402 (La. App. 1 Cir.

1972) amended in part, 300 So.2d 154 (La. 1974), they urge

that the failure to direct a verdict in their favor was in error,

due to the fact that there was no evidence of “constitutional

malice” in this case.

Again, the answer on this point is found in the evidence

and the reasonable inferences to be drawn therefrom. From

the evidence presented by the plaintiff, particularly with

regard to the abrupt change, from praise to condemnation,

of Acting Chief Kidder by the press, to the involvement of

the reporter with the two former policemen, and the testi-

mony of witnesses tending to show that from his investiga-

tion the reporter had serious doubt as to the truth of the

publications, the trier of fact could reasonably conclude that

the publications were published with actual malice.”

Clearly, there was sufficient evidence to let the case

go to the jury. There was all the more reason to let the case

go to the jury at the close of the evidence, for there was a

question of credibility of the witnesses in addition to the

evidence of the press departing from objective reporting of

the news. Evidence of such departure can be considered by

the jury in determining whether there was a “reckless dis-

regard for the truth.” See Curtis Publishing Company v.

Butts, supra.

We must, and do, view this case in the light of New

York Times. Since New York Times, one legal principle,

above all others, emerges from a study of the defamation

cases; and that is that each case must be viewed by the re-

viewing court on its own peculiar facts, with a strong incli-

nation toward the protection of First Amendment rights. At

some point, which may not be easily defined, clear and con-

vincing evidence will show that the precious barrier has been

64

breached, and a jury must be permitted to find “actual mal-

ice“ on the part of the publisher, unless we were to adept

the Black-Douglas approach that the First Amendment grunts

an absolute defense for the news media to all defamation

actions, which we see no reason to do in the absence of a

clear expression of “absolutism” from the Supreme Court.

As stated above, in order to establish actual malice”

under the New York Times standard, the plaintiff must show

that the defendants had knowledge of falsity of the state-

ments, or a reckless disregard for the truth. If the plaintiff

can not show the defendants knew that the statements were

false, he must show reckless disregard for the truth. “(R)eck-

less conduct is not measured by whether a reasonably pru-

dent man would have published, or would have investigated

before publishing. There must be sufficient evidence to per-

mit the conclusion that the defendant in fact entertained

serious doubts as to the truth of his publication.” St. Amant

v. Thompson, supra.

Keeping in mind that evidence of “actual malice” must

be “clear and convincing,” more than “preponderance”, less

than “beyond a reasonable doubt,” we now consider, as we

should in First Amendment cases, to make an independent

examination of the record. The articles and editorials were

not “hot news.” See Curtis Publishing Company v. Butts,

supra. First, the newspaper published an editorial of praise.

Shortly thereafter, primarily because Anderson was support-

ing the ex-policemen, Spillers and Childers, in an effort to

get Kidder out as Chief, the newspapers published a series

of articles and editorials condemning Kidder. When Anderson

published the articles charging Kidder with running a house

of prostitution and receiving payoffs for barroom protection,

he knew that they were based on unsubstantiated rumors.

When a lead produced information that Kidder was not con-

nected with prostitution or barroom protection, Anderson

chose to ignore that source and to rely on hearsay or dubious

65

information furnished him by the two former policemen.

This is the “calculated falsehood” condemned in Garrison,

supra. Moreover, during all of this time the defendants were

seeking advice of counsel] and checking with various manag-

ing editors on the newspaper staffs as to how much further

Anderson would be allowed to go with the charges against

Kidder. To have directed a verdict under such circumstances

would not have measured up to, but would have fallen be-

neath, the New York Times standard, and would have con-

stituted reversible error on the part of the trial judge.

SPECIFICATION OF ERROR NO. 5

This assignment of error was made because the trial

court refused to allow testimony by Officer Reeves relative

to the so-called Miguez“ tapes.

When he testified, Kidder did not deny that many years

ago he had had a telephone conversation with a gambler named

Miguez. Supposedly to impeach Kidder, the defendants offered

the testimony of Officer Reeves to contradict what Kidder had

said the conversation was about. Plaintiff’s counsel objected

on the ground that the wire-tap was illegal and, consequently,

any testimony relating to the tape was inadmissible. The

lower court sustained the objection.

The defendants then made an offer of proof, as follows:

„.. . at the time in question about which Chief

Reeves started to testify, that he and his partner,

Tommy Cole, picked up a wire tap on one Miguez’

place. Among the calls received and while they were

there in person and listening to it on head phones

was a call to the police station to then I believe Cap-

tain Howard Kidder, in which the caller said that

he needed to see him and arrangements were made

to meet somewhere away from the police station.

Upon hearing this particular call they would be ex-

pected to testify that they thought they recognized

the same voice as that which answered in response

to the call to Captain Kidder, that they replayed the

tape of earlier calls and established to their then

satisfaction, although not beyond all doubt, that a

number of earlier calls had been made to Captain

Kidder, and that in these earlier calls arrangements

were being discussed with regard to how to set up

a gambling operation in the Capital House Hotel.

That this was reported to then Sheriff Bryan Clem-

mons and they are not sure what happened to the

tapes or what subsequent action if any was taken

thereon. This is the testimony in general that we

expected to elicit from these two witnesses. And we'd

like to put that in under an offer of proof.”

It is difficult to see how such testimony could be con-

sidered as impeaching evidence. It should be noted that Reeves

was to be interrogated about the contents of a telephone call

from Miguez to Kidder which took place in the 1950’s. The

tape of the telephone conversation was not available, and

nothing allegedly contained therein supplied any information

on which the press relied in writing or publishing the articles

in question in this lawsuit. The testimony of Reeves pertain-

ing to the taped telephone conversation has no probative value.

The only possible reason to offer such testimony was to show

that Kidder lied about his conversation with Miguez, but

Kidder admitted the material facts contained in the offer of

proof. We also agree with the trial court that the fruits of

an illegal wire tap are inadmissible for any purpose in the

trial of a case in this state.

We further find that 18 USCA, section 2515, prohibits

the use of the proposed evidence for any purpose, including

impeachment. See also 47 USCA, Section 605, However, even

if there were no federal statutory prohibition, the evidence

was inadmissible. Our procedural rules require identification

of the tape as a condition precedent to its admissibility or to

its contents’ admissibility in evidence. The defendants made

little or no effort to identify the voices on the tape or to

67

authenticate the tape in a proper manner. In the complete

absence of such authentication of the tape, the objection to

its introduction in evidence was well taken, and the trial

judge properly ruled it inadmissible. See United States Fidel-

ity Co. v. Duet, 177 So.2d 302 (La. App. 1 Cir. 1965); 29

Am.Jur.2d sec, 381, p. 432.

Even if we were to hold the evidence admissible, this

would not affect the decision in the instant case. It has long

been the rule that unless a substantial right of the party

against whom the ruling on the evidence was made is affected.

such ruling will be considered harmless error and not a ground

for reversal.

SPECIFICATION OF ERROR NO. 6

The defendants complain that the trial court erred in not

giving sufficient instructions to the jury concerning the policy

reason for the legal protection afforded by the First Amend-

ment, and label the judge’s charges as “sterile.”

It would be difficult to conceive of instructions more

feracious, more pertinent, more concisely stated, more thor-

ough and yet presented in understandable language, than

those given by Judge Ponder in this case. The trial judge gave

definite charges pertaining to the federal rules applicable in

defamation actions, both at the beginning and also at the

close of the case.

We find that the trial judge fully and properly instructed

the jury herein as the procedural law directs, All of the applic-

able laws was succinctly and fully explained to the jury. The

tr‘al judge at no time indicated any partiality to either side.

He at no time indicated his feelings about any fact, stressing

that it was the function of the jury to find the facts. More

specifically, the trial judge carefully informed the jury that

the plaintiff was admittedly a public official suing a news-

paper reporter and the press for defamation, and as such he

had the burden of proving “actual malice” by “clear and con-

vineing evidence.” He clearly explained the meaning of “actual

malice” and “clear and convincing evidence” in the light of

the applicable federal jurisprudence, particularly using the

language of the New York Times case, which is the definitive

opinion on the question of defamation involving public of-

ficials.

There was no error in the trial judge’s instructions on

the constitutional aspects of the case. He properly ruled that

the standard enunciated in New York Times Company v.

Sullivan, supra, was applicable. He charged the jury, in sub-

stance, that in order to find for the plaintiff they must find

that the clear and convincing evidence shows that these par-

ticular defendants published defamatory falsehoods about the

plaintiff with “actual malice.” The trial judge defined the

term “actual malice” and then defined “reckless disregard.”

“The cases interpreting the First Amendment of the

United States Constitution require that if a plaintiff

is a public official he must prove that the false state-

ment was made with actual malice, that is with

knowledge that it was false or with reckless disre-

gard for whether it was false or not.

“Reckless disregard in cases of this kind has been

interpreted to mean that the defendant need not

have investigated before publishing and he must have

in fact entertained serious doubts about the truth

of his publication at the time he published or as

one case phrases it, with a high degree of awareness

or probable falsity.”

See Garrison v. State of Louisiana, supra.

Not only did the judge charge the jury at the close of

the evidence and arguments, but he instructed the jury at

the very outset of the trial, by agreement of counsel, with

69

regard to “actual malice” and the burden of proof, and the

other necessary instructions so that the jury could better

understand the evidence which was about to be presented.

The judge specifically instructed the jury:

“In such cases, even though a publication be defama-

tory, the public official can not recover unless he

proves that the defamatory statement was made with

actual malive. That is with knowl dge that it was

false or with reckless disregard of whethe it was

false or not. In these cases the evidence presented

must show with convincing clarity actual malice on

the part of the publisher. I will define some of these

terms later in the course of the trial in presenting

the Court’s charge of law to the jury.”

In his charge the trial judge gave the general defamation

law, and then Heeifically informed the jury that because the

plaintiff admicted that he, as Acting Chief of Police, was a

public official, the case was subject to the federal rules with

regard to proof. The judge explained that the evidence must

show with convincing clarity that all of the elements of defa-

mation had been proved.

The judge further charged the jury that if they found

the defendants liable they could only award reasonable dam-

ages of a compensatory nature; he further instructed them

that they could not award punitive and speculative damages.

Although the record does not contain the requested in-

structions which were denied by the trial judge, the appellants

have set them out in their brief. We find that the applicable

law contained in the requested instructions was adequately

covered in the general charges of the trial judge. It is well

settled that a trial judge does not commit reversible error in

refusing to give special charges where such charges are in

effect included in the judge’s general charges. Haynes v.

70

Baton Rouge General Hospital, 298 So.2d 149 (La. App. 1 Cir.

1974), writ den. 302 So.2d 33.

The Supreme Court found, in Curtis Publishing Com-

pany v. Butts, supra, that the jury was properly instructed

concerning the factors to consider to hold that the defendant

acted in “reckless disregard”, and remarked:

“The impact of a jury instruction ‘is not to be ascer-

tained by merely considering isolated statements, but

by taking into view all the instructions given and

the tendencies of the proof in the case to which

they could possibly be applied.’

s *

This jury finding was found to be supported by

the evidence by the trial judge and the majority

of the Fifth Circuit.”

The Court continued:

“The evidence showed that the Butts story was in

no sense ‘hot news’ and the editors of the magazine

recognized the need for a thorough investigation of

the serious charges. Elementary precautions were,

nevertheless, ignored. . . .”

Despite our finding that the trial judge committed no

manifest error in his rulings or in his charges to the jury,

we have made an independent examination of the entire rec-

ord in the instant case, and we are convinced that the jury

verdict and the implementing judgment do not constitute a

forbidden intrusion on the field of free expression. See New

York Times v. Sullivan, supra. We have carefully reviewed

all of the evidence, as we said before, and we find that the

constitutional principles of New York Times and its progeny

have been constitutionally applied. There has been no in-

fringement upon, nor impairment of, the free exercise of

First Amendment freedoms. See Curtis Publishing Co. v.

Butts, supra.

71

SPECIFICATION OF ERROR NO. 7

Alternatively, the appellants’ argue that the jury’s award

of damages was excessive.

In considering the jury award in the instant case, we

must consider it in light of the recent Louisiana Supreme

Couurt decision of Coco v. Winston Industries, Inc., 341 So.2d

332 (La. 1976) and in light of the “chilling effect” which

the threat of potentially large defamation verdicts poses to

the exercise of First Amendment rights.

Coco reminds us that, as an intermediate appellate court,

we are not to disturb an award made by a trier of fact unless

the record clearly reveals that the trier of facts abused its

discretion in making its award.

The Coco court stated:

“Only after making the finding that the record

supports that the lower court abused its much dis-

cretion can the appellate court disturb the award,

and then only to the extent of lowering it (or raising

it) to the highest (or lowest) point which is reason-

ably within the discretion afforded that court. Bitoun

v. Landry (302 So.2d 278, La. 1974); Spillers v.

Montgomery Ward & Company, Inc. (294 So.2d 803,

La. 1974). It is never appropriate for a Court of

Appeal, having found that the trial court abused

its discretion, simply to decide what it considers an

appropriate award on the basis of the evidence.”

This Court agrees with the defendants’ contention that

the jury award of 8400, 000.00 actual damages is excessive.

We are persuaded that an award in such amount would have

a “chilling effect” upon the legitimate exercise of the rights

of freedom of the press and would lead to undesirable self-

censorship, the prevention of which has been the object and

purupose of the United States Supreme Court since New

York Times Company v. Sullivan, supra.

72

In viewing all of the evidence, we find that the plaintiff

has proved $100,000.00 in actual or compensatory damages.

Under our law, in a defamation action a plaintiff is

entitled to have such elements as mental anguish, humiliation

and embarrassment considered by the jury in arriving at an

award for compensatory damages. See Sas Jaworsky v. Pad-

field, 211 So.2d 122 (La.App. 3 Cir. 1968) ; Chretien v. F. W.

Woolworth Company, 160 So.2d 854 (La.App. 4 Cir. 1964),

writ ref. 246 La. 75, 163 So.2d 356.

In accordance with the dictates of Coco, we find that

the record clearly supports the findings that the trier of fact

abused its much discretion in making an award of $400,000.00 ;

consequently, we must lower the award to the sum of

$100,000.00, the highest point which is reasonably within the

range of the discretion of the trier of fact. In fixing the award,

we have reviewed prior reported decisions but have placed no

particular emphasis on the awards in those decisions, inas-

much as it is hardly discernible by gleaning the facts from

them that we should fix a like quantum judgment in the

instant case, none of them being fully apposite. We have, of

course, taken into consideration, in light of our ever-changing

society, various factors: the plaintiff has had to expend much

time and expense in connection with this litigation; he has

been and will be adversely affected in his chosen employment

as a law enforcement officer; he has been severly humiliated

and embarrassed, and has suffered considerable mental dis-

tress by these defamatory publications; and, also, the plain-

tiff’s reputation has been greatly injured by these defamatory

publications. We have also heeded the insulating effect of

New York Times in order not to approve of an award which

might constitute a threat to the defendants’ legitimate exer-

cise of their First Amendment rights.

We find, for the stated reasons, that an award of

$100,000.00 falls reasonable within the range of discretion

73

which is vested in the trier of fact, and yet will not threaten

or diminish freedom of the press. Thus, the judgment, being

excessive under the appropriate standards, is amended to

reduce the award to the sum of $100,000.00, and as amended

the judgment is affirmed. Costs shall be paid by the defen-

dants-appellants.

AMENDED AND AFFIRMED.

1. T' United States Supreme Court does not even intimate in New York

Times that it is imposing that burden of proof “by convincing clarity”

on a defamed public-official-plaintiff in the pre-trial stage. In fact,

the court rejected the absolute-immunity doctrine contin espoused

by Justices Black and Douglas in all First Amendment situations. To

require a plaintiff to convincingly prove a highly subjective factor in

the pre-trial stage is to surreptitiously invoke the absolute immunity

doctrine which has been repudiated. We do not feel that this Court, in

the matter before us, should be in the vanguard in advocating such

an insupportable jurisprudential stance.

He was the owner of the tavern.

He is named on the masthead as the publisher of the newspapers.

The television station is also a Manship enterprise.

> wo 90

74

HOWARD A. KIDDER

VERSUS

BOB ANDERSON AND

CAPITAL CITY PRESS, INC.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 11205

ON APPEAL FROM THE NINETEENTH JUDICIAL

DISTRICT COURT IN AND FOR

THE PARISH Of EAST BATON ROUGE, LOUISIANA,

HONORABLE ELVEN E. JONDER, JUDGE PRESIDING.

LOTTINGER, JUDGE.

DISSENTING AND CONCURRING OPINION

I concur in the majority’s conclusion that the jury

award of $400,000.00 was excessive, and should be reduced to

$100,000.00, however, I cannot agree with those statements

contained therein that a $400,000.00 award would have a

“ ‘chilling effect’ upon the legitimate exercise of the rights

of freedom of the press and would lead to undersirable self-

censorship, * * *.”

I respectfully dissent, however, from an affirmance of the

Trial Court judgment as to the question of liability. This suit

should have been disposed of in favor of the defendants on

their motions for summary judgment.

Defendants filed two partial motions for summary judg-

ment, the first covering an article appearing in the Baton

75

Rouge Sunday Advocate on July 14, 1974, and the second

covering articles appearing on June 12, July 16, July 17 (two

articles), July 18, and August 8 (two articles), all in 1974.

In an affidavit of defendant, Bob Anderson, attached to

the first motion for partial summary judgment, defendants

analyzed each sentence of the July 14, 1974, article, setting

forth from whom the information was obtained, and that the

defendants had no reasons to disbelieve the information con-

tained therein. There were some twenty-three individuals men-

tioned in the affidavit, some by signed statements, and others

by oral statements, which in some cases were later reduced

to affidavits. Copies of the affidavits and signed statements

were attached to the motion.

The plaintiff in opposition to this partial motion for

summary judgment filed his lone affidavit. This affidavit

contained a complete quote of a complimentary editorial ap-

pearing on May 2, 1974, in the State Times newspaper, a sister

paper of the Morning Advocate. It further set forth that even

after the publication of this complimentary editorial, the de-

fendants commenced an investigation of the plaintiff, and

obtained statements from individuals with full knowledge that

these individuals were out to “get Kidder”. The opposition

affidavit further sets out that the statements obtained con-

tained nothing more than hearsay, that the defendants did not

make direct contact with the individuals allegedly involved

so as to verify the facts contained in the statements, that the

facts contained in the statements were false and untrue, that

the defendants knew or had reason to know that they were

false, that the defendants or representatives of the defendants

threatened to expose certain individuals if they did not give

statements concerning the plaintiff, and that after respond-

ing to certain interrogatories the defendants continued to

make inquiry of certain individuals, having known of them

prior to the publication of the July 14 article, and having

failed to contact them prior thereto. In concluding the affi-

76

davit, the plaintiff alleges that the defendants knew of the

plaintiff’s qualifications and background as a law enforcement

officer and that for reasons best known to the defendants

they in bad faith attempted to obtain information from dis-

gruntled individuals who could only furnish hearsay testimony

so as to defame the plaintiff. In answer to certain interroga-

tories propounded by the defendants to the plaintiff, the plain-

tiff names various individuals that he intended to call as wit-

nesses on his behalf, and in particular those he would call to

prove malice as well as three individuals who purportedly

heard plaintiff make the remark I'll get Kidder”.

In support of its second motion for partial summary judg-

ment the defendants filed affidavits as to each article setting

forth the particulars. In addition to affidavits by those indi-

viduals who prepared the articles, there were also attached

statements by individuals who gave information to the re-

porter involved.

In opposition to this motion for a partial summary judg-

ment, the plaintiff filed an affidavit of one Fred King who

set forth very basically that he knew the defendant Bob

Anderson as well as some of his informants, that he joined

in their effort to obtain information against Howard Kidder

and actually made a trip to Biloxi, Mississippi to inquire into

the alleged ownership of a boat, all to no avail. He further

stated in his affidavit that Anderson told several individuals

in his presence that if they kept coming up with information

on the plaintiff that he could keep his name in the newspaper,

but that Fred King could never find anything against Howard

Kidder that could be verified and so informed those with

whom he was participating, and that in spite of the fact that

none of the information of the rumors could be verified the

defendant continued in his efforts to discredit Kidder, In addi-

tion to the affidavit of Fred King, the plaintiff also filed an

affidavit of Mayor Woodrow W. Dumas, of Baton Rouge.

Mayor Dumas’ affidavit sets forth that he informed certain

77

reporters and employees of the defendant that there was

nothing to the rumors concerning Howard Kidder. The plain-

tiff also filed his own affidavit, which simply disputed facts

contained in the articles. It further stated that he had never

been questioned by the defendants as to any of the articles

nor did they make any effort to verify or discuss with him

the facts contained theerin.

The United States Supreme Court in the landmark deci-

sion of New York Times Co. v. Sullivan, 376 U.S. 254, 269-

270, 279, 84 S.Ct. 710 (1964) said:

“The general proposition that freedom of expression

upon public questions is secured by the First Amend-

ment has long been settled by our decisions. The

constitutional safeguard, we have said, ‘was fashion-

ed to assure unfettered interchange of ideas for the

bringing about of political and social changes desired

by the people.’ Roth v. United States, 354 U.S. 476,

484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498. ‘The main-

tenance of the opportunity for free political discus-

sion to the end that government may be responsive

to the will of the people and that changes may be

obtained by lawful means, an opportunity essential

to the security of the Republic, is a fundamental prin-

ciple of our constitutional system.’ Stromberg v.

California, 283 U.S, 359, 369, 51 S.Ct. 532, 536, 75

L.Ed. 1117. It is a prized American privilege to

speak one’s mind, although not always with perfect

good taste, on all public institutions,’ Bridges v. Cali-

fornia, 314 U.S. 252, 270 62 S.Ct. 190, 197, 86 L.Ed.

192, and this opportunity is to be afforded for ‘vigor-

ous advocacy’ no less than ‘abstract discussion.’

N. A. A.C. P. v. Button, 371 U.S. 415, 429, 83 S.Ct.

328, 9 L.Ed.2d 405. The First Amendment, said Judge

Learned Hand, ‘presupposes that right conclusions

are more likely to be gathered out of a multitude of

tongues, than through any kind of authoritative selec-

tion. To many this is, and always will be, folly; but

we have staked upon it our all.’ United States v. Asso-

ciated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.

78

1943). Mr. Justice Brandeis, in his concurring opin-

ion in Whitney v. California, 274 U.S. 357, 375-376,

47 © Ct. 641, 648, 71 L.Ed. 1095, gave the principle

its classic formulation:

‘Those who won our independence believed * * *

that public discussion is a political duty; and

that this should be a fundamental principle of

the American government, They recognized the

risks to which all human institutions are sub-

ject. But they knew that order cannot be secured

merely through fear of punishment for its in-

fraction; that it is hazardous to discourage

thought, hope and imagination; that fear breeds

repression; that repression breeds hate; that

hate menaces stable government; that the path

of safety lies in the opportunity to discuss freely

supposed grievances and proposed remedies ; and

that the fitting remedy for evil counsels is good

ones. Believing in the power of reason as ap-

plied through public discussion, they eschewed

silence coerced by law-the argument of force

in its worst form. Recognizing the occasional

tyrannies of governing majorities, they amended

the Constitution so that free speech and assem-

bly should be guaranteed.’

“Thus we consider this case against the background

of a profound national commitment to the principle

that debate on public issues should be uninhibited,

robust, and wide-open, and that it may well include

vehement, caustic and sometimes unpleasantly sharp

attacks on government and public officials.”

“The constitutional guarantees require, we think, a

federal rule that prohibits a public official from re-

covering damages for a defamatory falsehood relat-

ing 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 dis-

regard of whether it was false or not.”

79

The Supreme Court further concluded that the “constitutional

standard demands” that “actual malice” be proved with con-

vineing clarity.

Therefore, the issue in this case is not the truth or falsity

of the statements published, but rather, whether the state-

ments were published with actual malice, that is, with knowl-

edge that they were false or with reckless disregard of whe-

ther were false or not. It is not the negligent publication that

we are here concerned with but rather the publication with

the reckless disregard to the truth. Garrison v. State of Lou-

isiana, 379 U.S. 64 (1964). Reckless conduct vis-a-vis negli-

gence in the publication of statements concerning a public

official is not measured by whether a reasonably prudent

man would have published or would have investigated before

publishing, but there must be sufficient evidence to permit

the conclusion that the defendant in fact entertained serious

doubts as to the truth of the publication, The mere failure

to investigate does not in itself establish bad faith. St. Amant

v. Thompson, 390 U.S. 727 (1968).

These three keystone cases from the United States Zu-

preme Court set forth the standard of conduct that the de-

fendant must be found in violation of before he can be found

at fault or liable for the publication. Unless the plaintiff can

show with convincing clarity that the defendant has breached

this rule of conduct, he cannot recover.

Unquestionably, summary judgment is a proper pro-

cedure for affording the constitutional protection of the First

and Fourteenth Amendments in a proper case. Bon Air Hotel,

Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970) and Time,

Inc. v. McLaney, 406 F.2d 565 (5th Cir. 1969).

Under what criteria must a judge decide a motion for

summary judgment in a defamation suit by a public official?

Does he use the traditional criteria applicable normally to

all cases, or do the First and Fourteenth Amendments man-

80

date a different criteria?

In Washington Post Co. v. Keogh, 365 F.2d 965, 967

(D.C. Cir. 1966), Judge Wright in speaking for the Court

said:

“A motion for summary judgment should be granted

where it is shown that no genuine issue of material

fact exists and the movant is entitled to judgment

as a matter of law. In deciding whether a genuine

issue of fact is raised in any case, a number of gen-

eral considerations are relevant. First, the right to

trial by jury is at stake, so courts must be ever care-

ful to grant summary judgment only when no issue

of fact is controverted or turns upon a choice be-

tween permissible inferences from undisputed evi-

dence. See Pierce v. Ford Motor Co., 4 Cir. 190 F.2d

910, cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L. Ed.

666 (1951). This need for care has given rise to valid

generalizations that summary judgment must be

denied when there is ‘doubt’ whether an issue of

fact has been raised, and that summary judgment

is not usually appropriate when the issue raised con-

cerns a subjective state of mind.

“These generalizations do not, however, relieve courts

of their responsibility to decide whether a genuine

issue of fact exists. That doubt concerning the issue

should be resolved against the movant may assist

courts in disposing of troubling cases after delibera-

tion, but it provides no assistance in the deliberative

process itself. That state of mind should generally be

a jury issue does not mean it should always be so in

all contexts, especially where the issue is reckless-

ness, which is ordinarily inferred from objective

facts. Summary judgment serves important functions

which would be left undone if courts too restrictively

viewed their power. Chief among these are avoidance

of long and expensive litigation productive of noth-

ing, and curbing the danger that the threat of such

81

litigation will be used to harass or to coerce a settle-

ment. Asbill & Snell, Summary Judgment Under the

Federal Rules—When an Issue of Fact is Presented,

51 MICH. L.REV. 1143, 1144 (1953).

“In the First Amendment area, summary procedures

are even more essential, For the stake here, if harass-

ment succeeds, is free debate. One of the purposes

of the Times principle, in addition to protecting per-

sons from being cast in damages in libel suits filed

by public officials, is to prevent persons from being

discouraged in the full and free exercise of their

First Amendment rights with respect to the conduct

of their government, The threat of being put to the

defense of a lawsuit brought by a popular public

official may be as chilling to the exercise of First

Amendment freedoms as fear of the outcome of the

lawsuit itself, especially to advocates of unpopular

causes. All persons who desire to exercise their right

to criticize public officials are not as well equipped

financially as the Post to defend against a trial on

the merits. Unless persons, including newspapers,

desiring to exercise their First Amendment rights

are assured freedom from the harassment of law

suits, they will tend to become self-censors. And to

this extent debate on public issues and the conduct

of public officials will become less uninhibited, less

robust, and less wide-open, for the self-censorship

affecting the whole public is ‘hardly less virulent

for being privately administred.’ Smith v. People of

State of California, 361 U.S. 147, 154, 80 S.Ct. 215,

219, 4 L.Ed.2d 205 (1959).”

Further, in Thompson v. Evening Star Newspaper

Co.,

394 F.2d 774, 776 (D.C. Cir. 1968) the court said:

“Since the very pendency of a libel action may cut

across the public interest in free and untrammeled

speech on public issues, a public figure cannot resist

a newspaper’s motion for summary judgment under

Rule 56 by arguing that there is an issue for the

jury as to malice unless he makes some showing,

of the kind contemplated by the Rules, of facts from

which malice may be inferred.”

And again in United Medical Laboratories v. Columbia

Broadcasting System, 404 F.2d 706, 712 (9th Cir. 1969) it

was said:

“In order to recover, United Labs would have to

prove with ‘convincing clarity’ that the statements

of the publications, if they could be defamatory of

it, were made with knowledge that they were false

in their alleged implications against it or were made

with reckless disregard of whether they were false

or not. And in order to be entitled to proceed in this

respect, United Labs could be required to show, on

proper challenge such as by the motion and showing

for summary disposition here, that it had sufficient

probative substance to be able litigably to give rise

to an issue of fact on whether such malice actually

existed or not.”

And as the court said in Ragano v. Times, Inc., 302

F.Supp 1005, 1010 (M.D. Fla. 1969) in discussing the plain-

tiff’s burden where the defendant has moved for summary

judgment:

“Perhaps in no other area of civil litigation is the

burden so ominous as in the law of defamation. To

survive summary judgment proceedings it is neces-

sary that he offer some evidence upon which a

jury could find convincing clarity of actual malice

or reckless disregard. The decisions require that he

come forward with evidence of the defendant’s state

of mind; in effect, he must prove a negative. There

must be ‘* * * sufficient evidence to permit the con-

clusion that the defendant in fact entertained seri-

ous doubts.“ [St. Amant v. Thompson, supra].“

It is not sufficient to withstand a motion for summary

judgment that the moving party’s motion for summary judg-

ment merely alleges malice, and courts are not persuaded

“that the fact that the newspaper reporter did not seek out

the plaintiffs personally to get their version of the dispute

would support an inference of actual malice on the part of

the defendant.” Hurley v. Norihwest Publications, Inc., 273

F.Supp. 967 (D.Minn. 1967).

It is well stated in F & J Enterprises, Inc. v. Columbia

Broadcasting System, Inc., 373 F.Supp. 292, 297 (N. O. Ohio

1974) that:

“Although courts are loathe to grant a motion for

summary judgment, particularly ‘of a case of any

complexity,’ S. J. Groves & Sons v. Ohio Turnpike

Comm’n, 315 F.2d 235, 237 (6th Cir. 1963), cert.

denied, 375 U.S. 824, 84 S.Ct. 65, 11 L. Ed. 2d 57; Hart

v. Johnston, 389 F.2d 239 (6th Cir. 1968), and gen-

erally construe pleadings, affidavits and the like in

a light most favorable to the opposing party, the

courts have often required a more rigid compliance

with the requirements of Rule 56(e) of the Federal

Rules of Civil Procedure when the action involves

the defendant’s First Amendment Rights since pro-

longed litigation might have a ‘chilling effect’ on the

exercise of such rights. Time, Inc. v. McLaney, 406

F.2d 565, 566 (5th Cir. 1969), cert. denied, 395 U.S.

922, 89 S.Ct. 1776 23 L.Ed.2d 239 (1969).

“Consequently, the courts have imposed a heavy bur-

den upon the plaintiff seeking recovery in a defama-

tion action involving the First Amendment rights:

‘Summary judgment is an integral part of the

constitutional protection afforded defendants in

actions such as this. Plaintiff has been purposely

given the heavy burden of proving actual malice

... When it has been established, as it has been

in this case, that he cannot meet it, the First

Amendment makes it incumbent upon the Court

to grant defendant’s motion for summary judg-

ment.’ Cerrito v. Time, Inc., 302 F.Supp. 1071,

84

1075-1076 (N. D. Cal. 1969), aff'd per curiam, 449

F.2d 306 (9th Cir. 1969).

“In United Medical Laboratories v. Columbia Broad-

casting System, supra, 404 F.2d at 713, 712, with

respect to ‘primary question on the federal rule and

standard. . . of actual malice’ the Ninth Circuit

held that a plaintiff ‘could be required to show, on

a proper challenge such as by the motion and show-

ing for summary disposition here, that it had suffi-

cient probative substance to be able litigably to give

rise to an issue of fact on whether such malice actual-

ly exister or not’.”

The court then concluded that in light of this strict federal

standard as set forth in New York Times and the most recent

decisions the plaintiff is required to prove with convincing

clarity, when confronted with a motion for summary judg-

ment and supporting documents, the existence of elements

with sufficient probative substance to provide a basis for a

finding that a defendant had knowledge of falsehood or ser-

ious doubts as to the truth of the alleged defamatory state-

ments.

I am convinced after a close and thorough reading of

the federal cases, from New York Times on, that the burden

placed upon a plaintiff in defeating a motion for summary

judgment is a most severe and difficult challenge to meet,

though not impossible. He cannot merely allege malice or

reckless disregard, nor hope to prove malice by questioning

the defendant or defendant’s witnesses. Where in the ordinary

type of case he could be successful in defeating the motion

by only putting forth a minimum of evidence, here he con-

fronts the guarantees of the First and Fourteenth Amend-

ments, and thus stands the risk of the motion being success-

ful if he cannot at this stage of the proceedings show that

he can produce sufficient evidence on the trial that will prove

with “convincing clarity” the defendant’s malice. Stated an-

other way, I am convinced that the single thread that is woven

85

throughout this entire fabric is that in order for plaintiff

to be successful on the threshold issue of summary judg-

ment, he must come forth with strong evidence, convincingly

clear evidence, that the defendant either knew the statements

published were false or that he had reckless disregard of

whether they were false or not. Otherwise. if plaintiff is

allowed to escape summary judgment by simply a minimum

showing, he has thus effectively invoked the “chilling effect”

of trial doctrine.

The Louisiana and Federal Summary Judgment Rules

are basically the same. See LSA-C.C.P. Arts. 966-967 and

Rule 56, Federal Rules of Civil Procedure. The Louisiana

Code of Civil Procedure can require nothing less from the

plaintiff in cases of this nature at the summary judgment

stage of the proceedings than have the federal courts under

the federal rules because of the federal constitutional ques-

tions involved.

The majority contends that the affidavits filed by de-

fendants in support of their moitons for summary judgment

are of no moment because they were not based on personal

knowledge of the affiants as required by LSA-C.C.P. 967.

Again the issue is not the truth or falsity of the statements

published, but rather, whether the statements were published

with actual malice, that is, with knowledge that they were

false or with reckless disregard of whether they were false

or not. Though the information appearing in the affidavits

and statements by the various informants is the rankest of

hearsay, they w

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