Petition for Writ of Certiorari — Time, Inc. v. Bon Air Hotel, Inc.

| ‘SUPREME COURT. > =

me Court, US.

FILED

‘In ‘THE

| Broce Cont of the United

OcTOBER TERM, 1968

JUL 24 1968

8

“JOHN F, DAVIS, CLERK

| a © eo

a es No. 93:7. : wis | ra

+ UME, » INC. and DAN JENKINS,

” Petitioners, ;

U. ns

BON AIR HOTEL, INC.,

te, Cert one

PETITION FOR A WRIT OF CERTIORARI .

TO THE UNITED STATES COURT OF APPEALS

-. FOR THE FIFTH CIRCUIT

. oe ; A

| ‘ile R. MEDINA, Jr,

a | One Chase Manhattan Plaza,

& “8 New York, N.Y. 10005 -

: ‘h Attorney for Petitioners.

Eowix D. FuLcHer, ; earns ons Ti Ae ee

"= —FULCHER,. FULCHER, , HAGLER, eae

HARPER & REED, : ee

- 520 Greene Street, | |

P. O. Box 1484, _ :

Augusta, Georgia 30903

. V. THomas Fryman, Jr., ope :

ARNOLD P, MEssING, _ - | a

CravatH, Swaine & Moore, : |

_One Chase Manhattan P! Heike Lemire hee ee eit tere es

New York, N. Y. ‘10005 .

Of Counsel

3

ro

INDEX |

. Mon , PAGE

OPrNions Anp Orpers BELow .. rises eer oS

JuRispIcTION ee sdeege i oe er

: QUESTIONS PRESENTED 5.200200 00001 eeeeeeeeeee S. ‘

, ConstITUTIONAL Provisions ie ee

rib STATEMENT .......... viewers Piatt 46

; REASONS For INTERLOCUTORY REVIEW . ..60 seeds 7

THE QUESTIONS - ne Suasrawtiais kcakewuaeeauas 10 Ss

IIE ooo saa sn nciced cane inieage acess 18

APPENDIX A

District Court Opinion nia Order — Motion to .

Dismiss and Alternative Motion for Summary tee

Judgment A eR eens eee onan tees eeeeceens eee

AprenDiIx BO : | gare nee

District Court Amends Order Certifying Its Order 8h

As Appropriate For ee anit bse ew wint ken resecces OM. se

AprenDIxXC ive | ee oe

Fifth Circuit Order Denying Leave to. 0 Appel 6a

APPENDIX D 7 Sag ae j

Fifth Circuit Order Denvhias Petition for, pehanntiig Rots ged

| or Alternatively for Rehearing En Banc ivtbte Le

. Appenpix E par as Fe,

— Affidavit of Dan Jenkins cnsendakngseges sce ens. ae

Apraapix F. Bloons Ree 5 3 be elas

_ Affidavit of Sarah Pileggi . ee nie eeme . 12a

APPENDIX G ai: |

f ee Claimed to Be False. pseu "14a

a . ’ nee Se

sy Loe - ‘TABLE OF AUTHORITIES cere hy

| | ie ems <a eee PAGE) -

~ Cases: So ie eta

‘Beckley Newspapers Corp. v. Hanks, 389 U. S. 8l.. eo 3

ee? Clark v. Pearson; 248 F. Supp. 188 (DD. C. 1965) 14.

- Cole Fischer Rogow, Inc. v..Carl ‘Ally, Inc., 29 App.

‘Div. 2d 423, 288 LYS. 2 2d 556 (1st Dep’t 1968), 16

Curtis. Publishing Co. v. Butts; 388 VU. S. 130. .7, 13,.14-

__- Dombrowski v. Pfister, 380 US. 479 ...... 9,89

Fignole v. Curtis.Publishing Co., 247 F, ‘Supp. 595 ©

1S BY a odd seine oS 14

_ Flanagan v. Nicholson Publishing Co., 137 La. 588,

ma 3: 2) eee | a

Fox v. Kahn, 421 Pa. 563, 221 A. 2d 181 (1966). , 16

Garrison v. Louisiana, 379 U.S. 64 ....... eds 14

"Grosjean v. American Press Co., 297 U. S. 233 . 7

Henry v. Collins, 380 U. S. 356 SST ET Lg. i

In re 620 Church St. Corp., 299 U.S. 24 2... 000: ae .

. Klahr’v. Winterble, 4 Ariz. App. 158, 418 P. 2d Mee oe

| 404 (1966): 2 ose gee cc eee cee cneedaecces wee :

Linn v. Plant Guard Workers, 383: U. S. 53 noe os se | aa =

“Lorillard v. Field Enterprises, Inc., 65 TL App. 2d. 0S ee

OS, Be Whe Ms OE AAO? wivetiigcebicns veces 14 gt eee ts

Lundstrom v. Winnebago Newspapers, Inc.,; 58 Ill. ce ie oe

_ App. 2d 33, 206 N. E. 2d 525 (1965) .: epee sere 16 eee eae

McNabb v. Tennessean Newspapers, Inc., 400 S. Ww.

2d 871, (Tenn. Ct. App. 1965) ..........-+.-- ; 16 7

N. A. A. C. P. v. Button, 371 U. S. ees SS ae

2 New York Times Co, v. Sullivan, 376 U. S. 254 .

Sas 7,8, 10, 12, 13, 14, 15, 16,18, 19

a ee ae oe

rf - a. Bek ot Saat wees PAGE.

at Reser Shilbory, 24 App. Div; 2 814, 263 N.Y.S.

AG Gd Dest 1968)... —

Rosenblatt. v. Baer, 383 U.'S. 75, eer se ae

* St. Amant v. Thompson, "US... -83 Sap. Ce. :

ie BaP: SA urd NE ee BY

Smith v. California, MUS. re:

_ Suchomel v. Suburban Life Newspapers, Inc., 84Tll.-

App. 2d 239; 228 N. E. 2d 172 (1967) ..,..... 16:

Thornhill v. Alabamg, 310 U. S. 88 ........008. 0-7

+ Time, Inc. v. Hill, 385 U. S. 374. .7; 8, 10, 12, 13, 14, 15

Time, Inc. v. McLaney (Fifth Circuit, No. 25585) ‘17

United States Alkali Export Assn, Inc. v. United

States, 325U.S.196 20.01.0600. Se rae 2°°

Washington Post Co. v. Keog sh, 365 F. 2d 965 D. Cc.

Cir. 1966), cert. denied, 385 U. S. 1011... «7, 8, il, 13

ey oussoupoff vi C olumbia Broadcasting S: 'ystem, Inc.,

48 Misc. 2d 700, 265 N. ae 2d 794 (Sup. Ct.

een eee Rome ee me ar meme oy Saree” — 14

Unitep STATES CONSTITUTION : acne a 7

AmendmentI........ See Sere eres weccssceses 4

‘Amendment XIV §1......... Peete eeeees reves 4

UNITED STATES STATUTES:

_ Civil Rights Act of 1964, 78 Stat: 243-46, 42. S: ra

§§ 2000a—2000a-6 (1964 ed.) -.... ees ix Ak

_. Orner AuTHoritiEs:

Berney, Libel and the First Amendment—A New

Constitutional Privilege, 51 Va. L. swe! 1 (1965) 13”

BLACKSTONE, COMMENTARIES: ........-0+e4 Toes * i

S. Bower, ACTIONABLE DEFAMATION (24 ed. 1923) 17

_ Pedrick; Freedom of the Press and the Law of Libel:

*- . <The Modern Revised Translation, 49 CoRNELL ,

Q. 581 (1964) chalks tee es gusenevaeyecee’ 13

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In THE Ree

- are Conct nf. the Mnited tates:

ee 1968 |

od

mY »= rt

& ‘Timez, Inc. and Dan Jenxins, yee Bae

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. ‘Bon Arr/Hotet, Inc., -

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eineroian ein wae te Celia

TO THE UNITED STATES COURT OF APPEALS .

ae er poe

/ OPINIONS AND ORDERS BELOW

Petitioners seek a writ of. certiorari to the United States

Court of Appeals for the Fifth Circuit from an order of

"that Court, denying: ‘petitioners leave to appeal from an

' order of the United States District.Court for the Southern

' District of Georgia, Augusta: Division, which. denied peti-

tioners’ motion to‘dismiss and for summary judgment. The

District Court had previously certified its order as appro-

| priate. for appeal pursuant to 28 U. S. C. § 1292(b)..

Petitioners also seek to review the order. of the Court

of Appeals denying petitioners’. application for rehear-

: ing en banc or, alternatively, for rehearing of petition- :

ers’ application for leave to appeal. The dtiginal opinion and

a order of the District Court sis ii the motion to 9 dismiss Sais

. ‘the District Court, entered December 23, 1967, certifying

_ its order as appropriate for appeal is attached hereto as

Appendix B. The order of the Court of Appeals for the ~

‘Fifth Circuit denying leavé to. appeal, entered’ March’ 4,

1968, is attached hereto as Appendix C. The order of the

United States Court of Appeals for the Fifth Circuit deny-

ing petitioners’ application for rehearing, rendered April

30, 1968, is attached hereto as Appendix D.

i

JURISDICTION* .

The order of the Court-of Appeals denying petitioners’ -

leave to appeal was entered March 4, 1968, and the order

April 30, 1968. The jurisdiction of this Court is invoked

under 28 U. S. C. -§ 1254(1).

. 1. Did the Court of Appeals abuse its discretion in re-

’ fusing to appeal from denial of summary disposi-

(tion im a cabé involving freedom of the press under the First.

and Fourteenth Amendments after the District Court liad

. - : '

3 ; 3) tart aaa) a

certified that such denial tnvolved a controlling issue of law _

as to which there was substantial ground for difference of

°- ° opinion and there had beén clear proof, uncontroverted and

uncontrovertible, that 4 {

_ (a) the action is in Hel’ based tibon sh citicle .

- in the public press which qualified for constitutional

protection under the First and Fourteenth Amend-

‘ments since it contained statements, upon. which

' suit was brought, concerning a public hotel owned by

respondent and thus dealt with a “public figure” and

a matter of public concern; A /

(b) affidavits and exhibits from petitioners’ file,

‘ as well as petitioners’ sworn responses to respond-

ent’s interrogatories (respondent having for over

three years declined‘ to examine those witnesses.

orally—although having directed interrogatories

which were completely answered), showed that the

article was writter in good faith by an expert in the

field, based upon an extensive investigation, with a

rigorous independent check, and published. in the be-

lief, which centinues to this day, that the article was

true, thus qualifying for constitutional protection ,

under the First and Fourteenth Amendments by

summary disposition without the expense of trial;

and .

(@) respondent hol! owner explicitly disclaimed ©

special damage, thus making mandatory dismissal of .

the action under the. First and Fourteenth Amend- -

ments? . maa Poy

2. Under the circumstances set forth in question 1,

did the Cotirt of Appeals, under the Constitution, have dis-

" €retion to refuse to review or was review under those cir- o.

cumstances mandatory?.) — 1s

.

*. ,

. ,

° od her * ae

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, *

aa ros . ’ . ‘

‘

3. Under the circumstances set forth in question 1, is ©

the discretion of the Court of Appeals to refuse to-review

so narrow, or limited, under the Constitution and applicable

decisions of this Court, as to mandat< review? —

CONSTITUTIONAL PROVISIONS | INVOLVED

‘The constitutional provisions involved ‘are the First

and Fourteenth Amendments, United States. Constitution,

Amendment I, Amendment XIV, § 1. :

“Congress shall make no law respecting an estab-

. lishment of religion, or prohibiting the free exercise

thereof; or bridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, atid to petition the Government for a re-

dress ‘of grievances.” U. S. Const., amend.. I.

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizéns of: the United States and of the State

wherein they reside. No State shall make or eriforce

any law which shall abridge the privileges or im-—

munities 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 protec- -

tion of the laws.” U. S. Const., amend. XIV, §1:

_ STATEMENT |

iniiiiciditesis Gnd compas anh coccanit of the Bou Als

Hotel in Augusta, Georgia, a hotel which catered to per-

sons attending the Masters’ Golf Tournament and which |

had been one of the principal meeting places for persons

\

. .

5

attending that Tournament. The Masters’ Golf Tourna- )

ment is one of the major: sporting events in the country,

: attracting many thousands of persons to Augusta each

year and capturing the interest of many millions through-

- out the country. The conditions in and around Augusta

for the duration of the Masters’ Golf Tournament are

matters of public interest and are reported widely i in the

press (R. 3; D. 68).* ws |

The April 6, 1964, issue of Sports Illustrated (owned

and published by petitioner Time, Inc.) was devoted largely

to the Masters’ Golf Tournament. It contained an article,

written by petitioner Dan Jenkins, describing the conditions

under which the Tournament was held and accommodations _

in Augusta and described, among other things, conditions

at the Bon Air Hotel, past and present. It is that article

of which complaint is made is this action (R. 3; D. 68)...

The man Time, Inc. chose to do this job was no neophyte

to the world of golf or to Augusta. Since high school, he

had been a sports reporter, rising rapidly from the coverage |

of sports events around Fort Worth, Texas, to writing his

daily column, to directing the sports department of a ma-

jor metropolitan newspaper. For over 15 years he had been -

writing»about sports and about golf; for 13 years he had

Seen Sane Aegeane Syenng Che wack of Gb aceasta

Tournament (R. 25;.D. 47-8, 67-8).

Jenkins was assigned to write an article about the Tour-

nament surroundings in Augusta. Of necessity, these sur-

roundings included the hotel accommodations and the places

where the persons attending the Tournament could meet

(R. 25-26; D. 68). _

Jealdins interviewed literally dozens of persons .

oe ee eee ee. ee, eee

6

- Bon Air. Some of those names are set forth in his affidavit.

He researched the files of Time,’ Inc. with respect to —

Augusta and its background. He studied: newspaper clip-

pings and consulted historical journals and volumes: Last .

but not least, he drew upon his own wide knowledge of the »

golfing world and his own experience during 13 years of

the Masters’ Golf Tournament. Thus, the job he did was

one of careful research in the light of extensive experience.

But, after his writing was finished, it was passed on to a

Sports Illustrated researcher, Sarah’ Pileggi, who checked .

each and every statement of fact. She checked such facts

- by telephone conyersations, by personal interviews, by con-.

sulting Time, Inc.’s files and by reading relevant published

sourcess An example of her correspondence was attached to

her affidavit (R. 26-30; D. 47-50, 68-73).

Copies of the Jenkins and Pileggi affidavits in support

‘of the motion for summary judgment are attached hereto

as Appendices £ and F. A review of the statements claimed -

to be false is attached hereto as Appendix G. Respondent

made no effort, and none was possible, to dispute petitioners’ —

good faith and belief in the truth of the article.

- There is no claim of special-damiage in’ the ‘complaint

(D. 8) and respondent in its brief and argument below spe-.

cifically disclaimed any such assertion:(R. 8). A subsidiary

benefit of the constitutional protection to which defendants

are entitled bars a public figure plaintiff from reeny of

any but special damage.

"The Sports Illustrated article was published i in April,

1964, and this action was coftnmenced immediately there-

after and removed to the District Court. The action was

previously .dismissed for failure to produce an officer of

plaintiff for the taking of his deposition, which dismissal ‘

was reversed by the Fifth Circuit on April 5, 1967.’There-

after, petitioners brought on for hearing a motion to:dis-

>

7 rie)

ae

:

miss the complaint for failure to state a cause of action, a

motion which had been filed with petitioners’ answers in’

this case, but not previously passed upon by the District

Court. At the same time, and in order to'raise all constitu-

~ tional issues at one time, petitioners moved for summary

' judgment based upon affidavits. of its employees’ giying ‘full

“ details concerning the writing of, and research for, the

article upon which suit was brought. On December 20, -

1967, those motions were denied by the District Court which

by amended order on December 23, 1967, certified its order —

“as appropriate for. appeal to the United States Court of

Appeals for th Fifth Circuit. On December 29, 1967, an

application for léave to appeal was filed in the Court of Ap-

peals. Thereafter, leave to.appeal was denied on March 4,

1968..On March 25, 1968, a petition for rehearing was filed

in the Court of Appeals. On April 30, 1968, that petition for |

ne wag denied.

, REASONS | FOR INTERLOCUTORY. REVIEW;

__Indenying leave to appeak the Court of Appeals failed to

follow applicable decisions of this Court and reached a re- .

sult which conflicts with the Distriet of Columbia Circuit

decision in Washington Post v. Keogh, 365 F, 2d 965

(D. C, Cir. .1966), cert. den., 385 U. S.-1011. Respond-

ent has not complied with the requirements of proof in

New York Times based upon prior statements of prin- -

ciple in this Court and broadened in subsequent cases.*

*Those cases include doctrines announced in, among others:

Grosjean v. American Press Co., 297 U. S. 233; Thornhill v. Ala-

bama, 310 U. S. 88 ; Smith v. California, 361 U/S. 147; N. A. A. C. P.

v. Button, 371 U. S. 415; New York Times Co. v. Sullivan, 376, U. S.

254; Garrison v. Louisana, 379 U. S. 64; Henry v. Collins, 380 U. S.

356; Dombrowski v. Pfister, 380'U. S. 479; Linn v. Plant Guard

Workers, 383 U. S. 53; Rosenblatt v. Baer, 383 U. S. 75; Time, Inc.

‘°y. Hill, 385 U. S. 374; Curtis Publishing Co. v. Buits, 388 U. S. 130;

Beckley Newspapers Corp. v. Hanks, 389. U. S. 81; St. Amant v.

Thompson, U. , 88 Sup. Ct. 1323. Aa

i

8

. It-never can comply with those requirements. If this case

falls within the protection of those cases the litigation should -

be summarily ended without the burden‘of trial as was done

in Keogh. Petitioners seek interlocutory review to deter-

_ mine that. point. .

As the litigation now stands, petitioners are required

to present a common-law truth defense and have been denied

interlocutory review despite the emphatic announcements

of this Court that the First and Fourteenth Amendment

protections extend not only to exposure to judgment but~- ~

also to exposure to the cost of defense.’ New-York Twmes,

p. 279, Hill; p..389. _ Pas

- Review is essential-as ¥ =r as expedient. If petitioners

are correct in their contentions here presented, this

‘must be terminated. ‘Denial of review means that’

petitioners will have to defend below on truth and, if

unsuccessful, later. bring this same point before this Court. -

If successful’ (as we expect.to be),- petitioners’ constitu-

tional-rights will have been violated because of the enormous

‘expense involved, yet that violation can never be remedied,

even by action of this Court. Compare'N. A. A. C. P. v.

Button, 371 U. S. 415, 432-33 Dombrowski v. Pfister, 380°

U. S. 479, 486-87. The use of the summary procedure

adopted here to obtain an adjudication of the legal questions

presented here is presently scheduled in many cases through-

out the United States. The effectiveness of such procedure

can be protected only by review of its denial. A decision in

this case will be important to the proper utilization ” the

constitutional guarantees.

_ Ordinarily, hardship to a litigant ak Se to await |

correction of an alleged error at an interlocutory stage by

am appeal from a final judgment is not an adequate reason __

for the Court to exercise its discretion to grant -the writ.

The broad discretion vested in a Court of Appeals to grant

- 9 e

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. :

>"

or wr deny review ain 28 U. S, C. § 1292(b) ssc: pre- 2

cludes review of its.exercise. But where the litigation in-

volves freedom of the press, other considerations come into

play. This Court has indicated that the burden of trial may

itself amount to unconstitutional hardship. As the Court has

noted: ©. *.

. Because of the sensitive nature of constitu-

: eel protected expression, we have not required

that all of those subject to overbroag’yegulations

_ risk prosecution to test their rights. For free ex- |

' pression—of transcendant value to all society, and

not merely to those exercising their rights—might

be the loser. . . .” Dombrowski v. Pfister, 380 U. S.

| | * 479, 486. eee? ete :

| OD cs

oe The threat to free expression from the burden ok fitigation :

has led this Court to enjoin state criminal prosecutions that

_ affected -First Amendment. freedoms: Oh ieee,

. By permitting determination of the invalid-

ity él theie statutes without regard to the permis- ¢

‘ sibility of some regulation of the facts of particular _

cases, we have, in effect, avoided making vindication

of freedom of expression await the outcome of

protracted litigation. Moreover, we have not thought

that. the improbability. of successful prosecution

makes the case different. The chilling effect upon the =» -

z + exercise of First Amendment rights may deriye _

| tae: from the fact of the prosecution, unaffected-by the

- . prospects of its success or failure. il.” Id. at 487.

The.issue here is not whether the statements about

respondent’s hotel are true. Petitioners. believe that they are

true and, if necessary, they. can prove that they are true. —-._;

The issue is whether, consistently with the freedom of :

"press. "Upon a ‘record

10

press guaranteed by the First and Fourteenth Amendments,

respondent by bringing. this action can force petitioners

to spend tens of thousands of dollars to prove at a trial

_ that the statements are true when the record on the motion

‘ to dismiss and for summary judgment shows that the

statements dealt with a matter of public concern and re-

' spondent cannot establish that petitioners published the

_ statements ‘with “actual malice”? or that it suffered special

damage. If the publishing industry faces this prospect

' every time it prints an article on public accommodations,

- then hotel owners have found an easy way to silence the

re as that presented here, inter-

locutory appellate review of denial of summary disposition

is demanded by the rights which this Court has recognized

’ as inherent in the Hit and F ourteenth Amendments.

THE, QUESTIONS ARE SUBSTANTIAL. :

_ 1. This Court, both in New York Times (p. 279) and

Hill (p. 389) emphasized that “fear. of the expense” of trial

was as much a factor in its decision as fear of judgments.

réndéred after trial. It is thus obvious that a corollary of

_ the New York Times rule as set forth in that case and sub-

sequent decisions by this Court is that grounds must be

found in a proper case for summary disposition of actions

prior tosincurring the expense of trial. And expense is not .

the least of the hardships for a defendant which is subject

to suit in most jurisdictions in this country and which-must’ .

| supply its editors as witnesses for protracted periods of time

at the whim: of any libel plaintiff whose suit is held to be

immune to summary disposition. .

A further corollary of this rule i is that denials: of such ~

motions for summary judgment. must be subjected’to inter- |

: sseapoes feviEw; for otherwise an crronegus Genial of such :

é

a motion leaves the movant’ without protection against un- .

constitutional damage. This procedure was first applied by

_ the Court: of Appeals for the District of Columbia in’

Washington Post Co. v. Keogh, 365 F. 24.965 (D. C. Cir.

1966), cert. denied, 385 U. S. 1011. There summary: judg-

ment had been denied in the District Court and the Court. —

of Appeals granted, an application for leave to appeal pur-

- suant to ye 8 A § 1292 (b). The Court of Appeals

reversed and grantee summary jndement It pet? out

(p. 908) :

“In, the First Atperiimene. area, summary pro-

cedures aré even more’essential. For the stake here,

if harassment succeeds, i is free debate . . 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 om).

" public issues, and the conduct of public officials. will aoe

’” become less uninhibited, less robust, and less wide-

open, for. self-censorship affecting the whole public ~

is ‘hardly less virulent for being privately adminis-

tered.’ Smith v. People of State of California, 361

U. S. 147, 154, 80 S. Ct. 215, 219, 41, Ed. 2d 205

(1959).” 7 .

The two questions presented in all libel a actions in which’

constitutional protection is sought are (1) what is it neces-

sary to show as a/matter of law in order to qualify for con- _

stitutional protection, and (2) what i is it necessary to show

as a matter of law in order to qualify for summary disposi-

tion, likewise mandated by the Constitution. ‘We believe that

this case presents both those questions to be ruled ixpon in

favor of petitioners by this Court as a matter of law. If this

Court does-not reverse the denial of leave to appeal peti-

: es

. tioners ¢ will have bien deprived of their constitutional right

to summary disposition of the action. - . ‘

- We should emphasize that all. we fear in ‘connection

_ with this case is, in the language of New York Times and

. Hill, “fear of the expense” of trial, for we have not the

slightest doubt but that the case can be successfully de-

fended on-truth grounds should the action go to trial in

__ which case the constitutional questions we here present will

‘ ; mever reach this Court. ‘But petitioners will have been de-

prived of their constitutional right to. summary disposition.

The extent of that “fear of the expense” of trial may be illus-

. trated by the fact that investigation expenses alone in this

action total over $30,000—if it is necessary to go to trial —

the expense will total at-least the equivalent amount. A trial

will last at least three weeks and will.involve the appearance

of at least fifty witnesses. ‘The trial will be long and expen-

sive. In addition to evidence relating to truth of the ten

particular statements claimed to be false; petitioners will

have to introdtice evidence about other deficiencies of the :

Bon Air in mitigation of damages: Petitioners will have to

.. bring to Augusta as witnesses individuals from throughout

the country who have been guests at the Bon Air. ‘Extensive

analysis of Bon Air finances at the trial will be necessary to

establish lack of damages. Petitioners, reasonably anticipat-

ing a hostile forum inasmuch ‘as the article was generally |

critical of Augusta, can chance cutting no corner in prepara- =

tion. The financial burden of the trial in itself will be sig-

nificant: eter 2 ew wm aie tenes to be heat

. with respect to that threat.* |

“Fear ofthe expense of tr ie an fetve thet. ‘According to .

3 In short, this case squarely presents to this Court -

_ threatened and very feal violation of the constitutional right

to summary disposition, referred to by this Court in New

_ York Times and Hill and granted in Keogh. If interlocutory

_ “~“¥eview.be not granted then rights recognized for the benefit

- of libel suit defendants in New York Times and subsequent,

cases are illusory.* -If doctrines developed to; protect the -

press are to be meaningful, it must be possible to obtain . .

appellate review of lower court orders.such as the order

here before running the gauntlet of trial. That is the neces-

. Sary constitutional corollary to the New York Times a

trine. Pe

‘ 2. This Court. sdianat also sala upon its definition. :

of “public figure” as introduced in-Butts. If a public ac- _

commodation is not a “public figure” then we have, indeed,

retrogressed.** We refer to the decision in Flanagan v.

Nicholson Publishing Co.; 137 La. 588, 68 So. 964 (1915),

"relied upon by this. Court 3 ini its majority opinion in Butts.

- (p. 155). The Flanagan decision contained the en

i quotation from a Massachusetts case: pee et

fession, and general chicdencn il acme ees

cute libel actions all operate to discourage such threats,

‘fact that the cost of defense -alone can be-prohibitive tends to

prose-

the

sustain it. . . . If it is true that ‘ pag Py ‘no longer ‘settle

shyster .

~~ out of court, ‘but fight,’ thus icing ge lens the

"> lawyers. who brought 90 per cent . it isa

description that can onl Sidade-20.4d inate

caterprises.

nt Libel and the First Amendmént—A New Constitu-

Privilege, 51 Va. L. Rev. 1, 34 n. 175 (1965).

*The izona Court of A Is addressed this very point in Kiahr |

_ Vv. Wint le, 4 Ariz. App. 158, 170, 418 P. 2d 404, 416 (1966) :

“If all actions of libel similar to’this must ©, to 2 fall fury

.'trial in order to ascertain whether criticism

vective ‘and satire is believed in ‘good faith’ to be ‘true,’ the.

et Tine ite ar coments

ork Times will be

“neces the specific seoeniee & sc aera accommoda-—

ton neo ig, A oe, 42

; TRA Lee:

. Py “The editor of a newspaper has the right, if not

the duty, of publishing, for the information of the

public, fair and reasonable comments; however severe

in terms, upon anything which is made by its owner

@ subject of public exhibition, as upon any other

matter of public interest ; and such a publication falls

within .the' class of privileged communications for

which no action can, be maintained without proof of

‘ actual malice. Gott v. Pulsifer, 122 Mass. 238, 23. — *

Am. Rep, 322.” (Emphasis added.) 68 So. at 968.. ~

The time has come to clarify the concept of “public

figure” so that “its outer limits will be marked out by case-

to-case adjudication” (St. Amant v. Thompson, . U.S:

, 88 Sup.’ Ct. 1323). The “public official” language

in Mew York Tienes misled a number of lower courts into

the belief that the New York Times principle was limited

to “public officials”. See Clark v. Pearson, 248 F. Supp. .

. 188, 195 (D. D. C. 1965); Fignole v. Curtis Publishing

Co., 247 F.Supp. 595, 597 (S. D. N. ¥. 1965) ; Lorillard

yv. Field Enterprises, Inc., 65 Ill, App. 2d 65, 213 N. E.

24 1 (1965) ; Youssoupoff v. Columbia Broadcasting Sys- -

* tem, Inc., 48 Misc. 24 700, 265 N. Y. S. 2d 754 (Sup. .

Ct. 1965). This Court quickly moved to clarify that misin-

terpretation in its decision in Rosenblatt v. Baer, 383-V. S.

75, 84-85, note 10. By the same token, this Court should

make it Clear that the concept of “public figure” is not lim-

ited to individuals such as Butts and Walker but also ex- »

tends to matters of public concern such 4s. public accom-

modations, i.e, a public hotel. We had thought that this

_ Court had made it quite clear that the concept of “public

figure” was embraced within the concept of “public concern”

in its explicit language in New York Times. (p. 269), Gar-

vison (pp. 74-75), Rosenblatt (p. 86), Hill (p. 387-88) and .

es er However, sce ached

-

~ *

| oe | 15

has not been sufficiently implanted so that the District Court

and the Fifth Circuit recognize the teaching. of this Court’s

decisions—and undo&btedly by the same token, other courts

will be in the same position and at a time when the concept.

is being presented in many cases throughout the country.

It is thus vital that this Court, in this case, act with respect

tothe “public figure” concept as it did with the “public offi-

cial” concept in Rosenblatt.* —

-_—_—— ————

eer] Professor Pedrick emphasizes that the public judgment ,

requires ee on a multitisde of subjects:

to better assure open debate then the privilege ought

to extend’ as stated by Judge Burch of Kansas to

‘all matters of public concern.’ The logic is simple.

In modérn democratic society the public judgment

makes itself felt on a great variety of subjects in a

great variety of ways, official and unoffitial. If de-

' cision on these mattérs is to be adequately informed

communication with respect to these subjects. Jt is |

therefore the function of the first amendment to pro-

|

| | ~~ every effort ought to’be made to free the channels of *. |

| tect the freedom of speech and press on all those

_ matters as to which there is some element of public

“* participation. At least on those issues where the,

4 a public judgment can make itself felt through official -

or unofficial communication. it can be said that the

termination of ‘matters of. public concern’ should

thus becomte the key to the application of the privilege

eee recognized in the Times decision.” Pedrick, Free- —

' dom of the Press and the Law of Libel: The Meters

, *This sg Tis Court shoul shosnative te its goon the ques:

tion expr open in Pp ral “public

interest” there found, and patently. present here. p eullicgs by agit te

_lavole the comstietional protection ia a be action

a . If a qualified ‘good faith’ privilege is needed

matter is one of proper public concern.‘ ‘The de- ’

8

16

Revised Translation, 49 Cornett L. Q. 581, 592

(1964). (Emphasis added.) : ;

3. “Moreover, in, this action, respondent sarily

disclaimed special eso In failing to give effect

to that by denying rié-vi ew the ‘Fifth Circuit has ©

patently transgressed the mandate of this Court in Linn v.

Plant Guard Workers, 383 U. S. 53,.64-65, in which this

Court, applying by analogy the princt of New York .

Times, noted, “We therefore limit the availability of state

remedies ‘for libel to those instances in which the complain-

ant can show that the defamatory statements were cir-

culated with mdlice and caused him daniage.”. -

It thus seems clear that the “special damage” require-

‘ ment has become a constitutional one, demanding constitu-

tional federal law application in all jurisdictions, However,

confusion presently reigns in the state courts, contrary °

to this Court’s decision in Linn, on whether a plaintiff must .

plead and prove Special damage as well.as “actual malice”.

The courts in two states, Illinois and Tennessee, have held

- that the decision in New York Times requires Special dam-

‘ age. Suchomel v. Suburban Life Newspapers, -Inc. 84 Ill.

App. 2d 239, 228 N. E. 2d 172 (1967); Lundstrom v.

Winnebago Newspapers, Ine,, 58 Ill. App. 2d 33, 206 N. E. |

2d 525 (1965); McNabb v. Tennessean Newspapers, Inc., -

400 S. .W. 2d 8M (Tenn. Ct. App. 1965). The Supreme —

Court of Pennsylvania has held that New York Times does .

not require proof of special damage, with a strong dissent-_

_-ing opinion on this point. Fox v. Kahn, 421 Pa. 563, 221

* A. 2d 181 (1966). The New York decisions are presently

split. Compare Cole Fischer Rogow, Inc. v. Carl Ally, Inc.,

29 App. Div. 2d 423, 288 N. Y..S. 2d 556 (1st Dep’t 1968),

with Raffa v. Shilbury, 24 App. Div. 2d 814, 263 N. Y. S.

2d 876 (3d Dep’t 1965).

Clarification of this question by this Court is essential.

If petitioners are correct, the complaint should be dismissed

. ‘ a ”

.

. . “

° <* “

7

-since only general damages are alleged (R. 8). As the

situation now stands, this would be the result in Illinois,

Tennessee, and some New York courts, but not Pennsyi-

vania, other New York courts, or the United States District

Court for the Southern District of Georgia.*

4. This case also presents the unusual situation of a

_conflict within a Circuit. The denial of the petition for

leave to appeal was passed upon by. a panel composed of

Judges Wisdom, Bell and Dyer. Previously, and on De-

cember 7, 1967, a different panel of the Fifth Circuit com-

posed of Judges Tuttle, Gewin and Hunter had allowed 4

petition for leave to appeal in Time, Inc. v. McLaney

(Fifth Circuit, Misc. 906, now No. 25585). Briefs are

presently being: filed and argument will be heard next

fall—too late to have an. effect on the disposition of this

case. In that case, which likewise arose from denial of a

motion for simmary judgment by a United States District

Court (Southern District of Florida), and in which that

Court, in denying the motion had allowed an appeal pur-

suant to 28 U, S. C. § 1292(b), a Life article dealt with

a subject-matter of public interest, i.e., gambling in the Ba- .

hamas, and the subject was a public figure, #.e., a profes-

sional gambler. Proof was presented, as it was here, by the

_ writer of the article giving the basis upon which he wrote |

the-article, his sources, and his good faith and belief in the. .

truth of the article. Se eee ee

Bower, AcTIONABLE DEFAMATION 210-12 (2d ed. 1923) ; Resrate-

MENT ‘OF Torts §633 (1938); The order of the District Court _

ae

action and this action are, constitutionally, identical. To .

grant leave to appeal in the one action and deny’ that leave .

in the other is constitutionally impermissible,

The very fact of that conflict within a Circuit empha-

sizes the need forsthis Court to allow review here, for it

is quite evident that its prior teachings in this field have

not been fully appreciated by lower courts. Such a lack’

of appreciation is not surprising in view of the fact that ~

this, Court has explicitly limited libel doctrines that have —

stood unchallenged for many. years after-having been in-

herited from the British common law. That law enunciated

two doctrines, 7.e., (1) it presumed falsity, malice and dam-

age, and (2) it left “malice” as an ill defined concept and

thus subject to proof in a variety of ways. Reason for

those doctrines, although not appreciated in this country,

was to protect and preserve the British caste system and,

to that end, the British common law has functioned very

effectively and still does today. Under it, no one may say ill .

of the upper class. But such doctrines should have no ap-

plication in this country under our Constitution.and a libel

plaintiff should. be made to prove his case as any other

plaintiff, at the very least with respect to language dealing

with a matter of public interest. Our lower courts still do _

not appreciate the very simple step this Court has taken in“

defining malice with precision and doing away with the’

presumptions. This case presents the opportunity to con-

_ tinue and, perhaps, go far towards completion of that’ edu-

~ cation. The conflict within the Fifth Circuit graphically

illustrates the. necessity.

CONCLUSION

‘Iti is patent ‘that the path to be’ pursued by this Court

is one of clarification and, we believe, extension, of the ap-.

_ plication of the principles enunciated in New York Times

.. and subsequent cases. St. Amant v. Thompson, U.S.

, 88 Sup. Ct. 1323, fulfilled that function with respect

19

to extensidn of definition of “‘recklessness”. This. Court.

“5.8 _ can fulfill that same function in this action by clarifying’

{ . o- the right of summary disposition presupposes the

| to review its denial. The doctrine annotinced in

ew York Times, and broadened thereafter, will have: ~~~

little effect if appellate review of erroneous refusals to ,

_. apply the constitutional privilege is not available until after

* the expense of a trial on the common law defense of truth. |

The matters involved can be more fully covered if there

are to be briefs on.the merits, although once it is decided.

that a public hotel is'a “public figure” or a matter of

“public interest” (which is a mattet of simple soltition)

it is obvious that petitioners have shown freedom from:

damages and that respondent has disclaimed special

damage, thus entitling petitioners to summary disposition

of this caSe Suffice it to say at this point the questions are ™

substantial. ee

For the reasons stated, the petition should be granted.

. July 23, 1968

Respectfully submitted, —

| ’ Harotp.R. MepIna, J

— One Chase Manhattan Plaza, .

Ree: wi New York, N. Y. 10005

' Attorney for Petstioners.

-Epwin D. FULCHER, ake

FULCHER, FULCHER, HAGLER,

HARPER & REED,

~ 520 Greene Street,

P. O. Box 1484, 3

" .: Augusta, Georgia 30903

7 V. THomAs FryMan, Jr.,

) | ARNOLD P. MEssSING,

pais - CravaTH, SwWAINE & Moore,

One Chase Manhattan Plaza,

. New York, N. Y. 10005

Of Counsel. ita) | :

Nee , : A ,