# Petition for Writ of Certiorari — Time, Inc. v. Bon Air Hotel, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0051%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 393 U.S. 859 ## Text | ‘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 . em . P 7 . . , : ; 2 | | . e ‘ ¢ . . ® . e | , | é ree : | : J ee id %, cj | ) : ° ° . “A ‘; . ’ . ; . : . . . xg ae . “ 5 : « ‘ 5 . ’ ; / + 4 | : ; x | ear e2 s. ° : ; j | ; % . . ; : . “” . bg ‘ : : . io fi Sg . " ; : “ ; e ‘_—_— ; . 4 . ° . > ’ “ : ; a . . 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' a ‘Ss. | , ; J . . . % - hd ; 4 3 | * ~hy > i + | | : ‘ Te ag PUR Re, Geen ‘ an ae 3 . ‘ . : ~ x : a \ In THE Ree - are Conct nf. the Mnited tates: ee 1968 | od mY »= rt & ‘Timez, Inc. and Dan Jenxins, yee Bae : oy. . ‘Bon Arr/Hotet, Inc., - A we 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 e , * 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 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 \ . : >" 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 , --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0051%3A1. Public record. Not legal advice.