# Appendix — Theckston v. Triangle Publications, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1968
- **Citation:** 393 U.S. 1001

## Text

CONSTITUTIONAL PROVISIONS.
CONSTITUTION OF THE: UNITED STATES.

AMENDMENT I.

. shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press;‘or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.

we | : } : : ; 4 a 5 ee,

» AMENDMENT. XIV 2
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 immunities 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

of the laws. 2

*

to any person within its jurisdietion the equal protection i

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2 5
0 . * ~~

: , dl B. e
HOWARD J. THECKSTON, ET Al., PLAINTIFFS.

PETITIONERS, v. TRIANGLE: PUBLICATIONS,
INC., ET AL., DEFEND NTS- RESPONDENTS.

52 N. J. 173

On ‘petition for certification to\ Appellate Division, Su-
perior Court. a

See same case below: 100 N. J. ink 452.

Mr. Harry Green and 0 r. . at 255 Bookbinder for the
? petitioners. |
. Messrs. Powell 4 Davis for the respondent.

July 8, 1968. Denied. 2
8 — : .
HOWARD J. THECKSTON AND CAROLINE THECK-
STON, PLAINTIFFS -RESPONDENTS, v. TRI-
ANGLE PUBLICATIONS, INC., A CORPORATION

OF DELAWARE, AND DENNIS M. HIGGINS, pn.

FENDANTS- APPELLANTS.

100 N. J. ‘Super. 452

Skperior Court of New Jersey
Appellate Division

7 Argued = 25, 1968—Deeided April 25, 1968.

| ‘SYNOPSIS BS,
Libel action by court clerk and his wife against newspa-
per publisher and reporter on account of articles and edi-
torials highly critical of clerk’s handling of incident in his-

office and his issuance ‘of memorandum threatening dis-

charge of critical employee. The Superior Court, Law Di-
vision, rendered judgment for plaintiffs, and defendants
appealed. The Superior Court, Appellate Division, Sulli-

van, J. A. D., held that evidénge was insufficient to take case

8

| 2b
“> . oh | .
to jury for lack of proof of actual malice or reckless disre-
gard of falsity, granted that publication lacked quality of
impartial news reporting.

Reversed and n

*

— —

1. Libel and slander 00

Evidence in action by court clerk against newspaper on
account of articles and editorial critical of clerk’s handling
of incident in his office and his memorandum threatening
to discharge critical employee was insufficient to take case
to jury for lack of proof of actual malice or reckless dis-
regard of falsity, granted that publication lacked quality of
impartial news reporting.

2. . Libel and slander 51 (5) ;

Test of liability for defamation of public official is ac-
tual malice, that is, knowledge that publication was false,
or reckless disregard of truth.

3. Libel and slander 1122)

Measure of proof of malice or reckless disregard of
truth in defamation action by public official is convincing
clarity.

4. Constitutional law 274

Mere negligence in failing to discover misstatements is
constitutionally insufficient to show recklessness that is re-
quired for finding of actual malice in defamation of public
official. U. S. O. A. Const. Amends. 1, 14.

5. Libel and slander 2561 (5)

Speech „ public affairs is essence of self-
government so that, where public officials are concerned, it
is only calculated falsehood which will afford redress.

W at
Before Judges Sutiivan, Foxx and Leonanp.

Mr. Louis G. Hill, member of the Pennsylvania 1
argued the cause for appellants -(Messrs. Powell & Davis,

attorneys ; Messrs: Dilworth, Paxson, Kalish, Kohn & Levy,
membe of the Pennsylvania Bar, attorneys). —

Mr. sa argued the cause for respondent How-
ard J. Theckston.

Mr. Joh S. Fields argued the cause for > resjediad Caro-
line Theckston (Mr. Sidney W. Bookbinder, attorney).

Suturvan,'J. A. D. Plaintiffs Howard J. and Caroline
Theckston ‘brought this libel suit against Triangle Publiea-
tions Ino, publisher of the Philadelphia Inquirer, and Den-
nis M. Higgins, a reporter on the staff of the newspaper.

After a 36-day trial, the j jury returned a verdict for $60,000 ‘ai |

compensatory: damages in favor of Howard J. Theckston,
. Mrs. Theckston was awarded $20,000 additional ee |

or loss of consortium arising out of the libel.

Mr. Theckston is the clerk of the Camden County District
Court. The charge of libel is based on a series of newspa-
per articles and an editorial appearing in defendants’ news-
paper concerning two incidents which took place in the
District Court Clerk’s office. |

The first involved a Puerto Rican woman who had ap-
peared at the District Court Clerk’s office in connection with .
a dispossess suit and who had been arrested as disorderly
on Theckston’s complaint, forcibly removed from the clerk’s
office and jailed. On the following morning the woman
pleaded guilty to a disorderly person charge and was sen-
tenced to pay a fine of $25 and costs er serve 15 days in
jail. Not being able to raise the money immediately, she
was remanded to jail where she remained four. days until
her son paid the fine and costs.

The second involved a memorandum issued two days
after the first incident to personnel in the District Court
Clerk’s office. In it Theckston stated that it had been

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a | 4b

brought to 4 Attention that some employees had publicly
oritioized his actions. The memorandum warned employees
that Theckston would brook no interference with his ad-
ministration of the affairs of the clerk’s office and that if
there should be a recurrence, he would take immediate ac-
tion to dispense with the services of the person responsible.

As a result of the foregoing the newspaper wrote a series

of articles and an editorial highly critical of Theckston’s

handling of the first incident and his issuance of the intra-
office memorandum.

Theckston?s contention is that these a con-
tained inaccuracies and were slanted against him so as to
produce a distorted picture of what really happened. He
alleges that his version of the first incident was not fully
presented by the newspaper, and the report of. the so-called
interview with him was written in tongue-in-cheek style. He
also charges that newspaper characterizations of his con-
duct and actions were so extreme and unfair as to exceed the
admittedly wide latitude allowed a newspaper in reporting
on the official conduct of a public official.

Defendants contend that plaintiffs failed to make out a
jury issue of liability within the meaning of New York
Times Co. v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. Ed.
2d 686 (1964), or that at least the jury verdict as to both
liability and — was nn. to the weight of the evi-
dence.

We have examined the whole record to ascertain whether
plaintiffs have presented a jury issue of liability within the
framework of tlie rule laid down in New York Times Co. v.
Sullivan. We conclude that defendants’ motion for a dis-
missal of the complaint made at the close of the evidence
should have been granted.

Ve York Times Co. v. Sullivan, held that there is a

oe W 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

6

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sometimes unpleasantly sharp attacks on government and
public officials. The court noted that a rule compelling the
‘critic of official conduct to guarantee the truth of all his
factual assertions—and to do so on pain of libel judgments
virtually unlimited to amount—leads to a comparable self-
ceensorship in violation of the First and Fourteenth Amend-
ments. The proper rule to be applied under the constitu-
tional guarantees, said the court, was one which 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. One seeking to prove actual
malice, added the court, must do so with the convincing elar-
- ity which the constitutional standard demands. (Plaintiffs
have not challenged the trial court’s ruling that Theckston
was a public official and subject to the rule ann in
New York Times Co. v. see )

[1] Applying the foregoing rules to the record before us,
we conclude that a prima facie case of liability was not
proved. It is to be noted that New York Times Co. v. Sulli-
van dealt with a case involving a publication which con-
tained material factual falsehoods. Even then the broad
rule of immunity set forth above was held to apply.

Here the factual misstatements are incidental and do not
4 go to the heart of the alleged libel. The thrust of plaintiffs’
complaint is that the newspaper accounts were slanted and
presented an unfair picture of what really happened. Ac-
tually, we do not have so much a case of factual falsity as
N one of impartial reporting and fair editorial comment.

The trial judge characterized the newspaper 8 investiga-
tion of the story prior to publication as at best desultory
and haphazard. He concluded that this, togetMer with the
failure of the newspaper to inquire as to possible motive of
the employee in the District Court Clerk's office who first N
alerted the newspaper to the incident, as well as the fact

/ that the plaintiff was given no bona fide opportunity to tell

6b

his version of the story“, satisfied the requirement of **

of actual malice.

[2-4] As heretofore noted, the test is actual inalice—that
is, knowledge that the publication was false—or reckless’

disregard of whether. it was false or not. The measure of
proof is convincing clarity. Mere negligence in failing to
discover misstatements is constitutionally insufficient to

show the recklessness that is required for a finding of actual

malice. New York Times Co. v. Sullivan, supra. It is on
this score that we conclude that plaintiffs failed to establish
a prima facie case of liability. Baldine v. Sharon Herald
Co., 391 F. 2d 703 (3rd Cir. 1968).

[5] Defendant newspaper had received a lead on a story

concerning the alleged abuse of his office by plaintiff. De-
fendant Higgins was assigned to the story. He made a rou-

tine investigation of the incident and interviewed a number
of persons, including Theckston. As a result, the publica-
tions, highly critical of Theckston’s actions, appeared. (As
heretofore noted, the publications included a report of a
telephone interview with Theckston in which he gave his

version of why. he had the woman arrested.) Granted that

the publications lacked the quality of impartial news re-
porting, we fail to see how it adds up to a showing by con-
vincing clarity of actual malice. Speech concerning public
affairs is the essence of self-government so that, where pub-
lic officials are concerned, it is only the calculated falsehood
which will afford redress, Garrison v. State of Louisiana,
379 UV. 8. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964).

In New York Times Co. v. Sullivan, supra, the Supreme
Court referred to its prior holdings that criticism of a judge
or his Nute v even though the utterance contain half
tru and-‘‘misinformation,’’ does not justify the punish-
ment as criminal contempt; the court adding that if judges
are to be treated as men of fortitude, able to thrive in a

hardy climate, surely the same must be true 1 other govern-

ment officials.

Beckley Newspapers Corp: v. Hanke, 389 U. 8. 81, 88 8.
Ct. 197, 19 L. Ed. 2d 248 (1967), is a recent decision involv.
ing 4 court clerk who had recovered a libel judgment against
a newspaper for a series of articles written on fluoridation
of the local water supply. One article had accused the clerk
of ordering over the telephone that he did not want his name
to appear in the newspaper again and added ‘‘He backed
up this order with an explicit threat—one merely intended
to frighten those who are easily intimidated.’’ The article
also stated that The only conclusioh to which we can come
is that either Hanks or Mrs. Hurt! (President of the County

Board of Health) have been in league towards the fanatic |

end, believing all the wild-eyed ravings against fluoridation
despite decades of experience to disprove them or that per-
_ haps his blustering threats were able to intimidate the
lady.’’ In a per curiam opinion, the Supreme Court unani-
mously reversed the libel.judgment, holding that the evi-

dence presented to show actual malice lacked the convincing

| clarity ‘demanded by the constitutional standard and was
insufficient to present a jury question.

The judgment herein is reversed and the matter re-
manded for entry of a judgment in favor of defendants. No

costs on this appeal.

sé

CONCLUSIONS OF TRIAL JUDGE ON NEW TRIAL.
APPEARANCES: |
For the Motion: Messrs. Powell & Davis, (Mr. James M.

Davis, Jr., appearing) attorneys for-defendants, (Mr. Louis
G. Hill, of the Pennsylvania Bar, was admitted pro hac vice

to argue the motion on behalf of defendant Triangle Pub-

lications, Inc.)
Contra: Mr. Harry Green, attorney for plaintiffs
Woon, A. C., J. C. C.

The plaintiffs instituted this action for libel against de-
fendant Triangle Publications, Inc., publisher of the daily
newspaper, the Philadelphia Inquirer, and against Dennis

8b.

NM. Higgins, a reporter for said newspaper. The action is
based upon a series of articles which appeared in the Phila-
delphia Inquirer between September. 30 and October 4, 1963.
The jury, following a ten-week trial, returned a verdict in
favor of the plaintiff Howard J. Theckston for the sum of
$60, 000.00 compensatory damages and i in favor of the plain-

tiff Caroline H. Theckston, for the sum of $20,000.00 com-
pensatory damages. The jury en, declined. to award
punitive damages.

The defendants now move for a new trial, upon the
„that each of the verdicts . . . was contrary to the
weight of the evidence, that each of said verdicts was exces-

sive and unreasonable in amount, and that each of said
| verdicts was contrary to law.’’

The publications complained of tonsisted of certain news
articles, an editorial, and certain letters to the editor, all
f concerning the conduct of the plaintiff Howard J. Theckston
in connection with the arrest and confinement of one Mar-
garita Buitrago for alleged disorderly conduct in the office
of the Clerk of the Camden County District Court on Sep-
tember 23, 1963. Plaintiff Howard J. Theckston was then
and still is Clerk of that Court. i

A brief review of the facts giving risé to the disputed
publications follows:

on the afternoon of Monday, September 23, 1963 the
plaintiff Howard J. Theckston was routinely performing
his duties in the office of the Clerk, situated on the third
floor of the Camden County Court House, which building
also serves Camden as its City Hall. A reception area is
separated from thé mores a area of me office by a fair-sized .
counter.

On the afternoon in question, a man and a woman (sub-
"sequently identified as Mr. Molina and Mrs. Buitrago en-
tered the office. Almost at once Mrs. Buitrago started to

. 3

talk in a loud and strident voice. Mr. Theckston and several
other witnesses described it as. shouting. Nevertheless, it
was apparently made clear that Mr. Molina had a question
about a landlord and tenant action in which he was the
defendant, that he spoke very halting Eglish, and that Mrs.
Buitrago said she was there to ‘‘interpret’’ for him. Ac-
cording to the witnesses for the plaintiff, Mrs. Buitrago re-
_ fused to quiet down, although requested 4 number of times
to do so. At length Mr. Theckston, according to his own ‘
testimony, warned Mrs. Buitrago that if she would not be
quiet he would call the police; whereupon she told him to
„go ahead.“ Theckston did call the police and Officers
Jerome Spratley and Daniel Domeraski responded to the
call. The officers testified that on their arrival the woman
was talking loudly and ‘‘gesticulating.’’ Officer Spratley _
asked Mr. Theckston what he wanted and Theckston replied ~
that he just wanted the woman removed from his office. The
officers then informed Theckston that if he wanted the
woman forcibly: removed it would be necessary for him to
sign a complaint“ against her. Mr. Theckston replied that
he would.do so. The officers requested Mrs. Buitrago to
leave and she refused. They then took her by the arms
and attempted to escort her from the officé. She resisted by
sitting on the floor, and the policemen dragged her, scream-
ing and crying, out of the Clerk’s office and some distance
down a corridor to a police elevator, by which means she
was taken to Camden City Police Headquarters, where she
was booked and Theckston signed a Municipal Court com-
plaint charging her with violation of the Disorderly Persons
Act. She refused at that time to give her name and was
committed to the County Jail overnight on a “temporary
commitment order“ issued by the police desk sergeant. She
continued to resist and was again physically dragged to
the elevator by which she was Pines tice to the County
Jail on the sixth floor of the building.

The next morning, Tuesday, September 24, she N was 111
before the Camden City he Court, where she pleaded l
guilty to the disorderly conduct charge. The Magistrate,

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10b

after hearing a brief statement by Mr. Theckston (it is not

clear whether or not Theckston.was sworn as a witness)
imposed a fine of $25.00 and $5.00 costs and in default
thereof ordered her committed to the County Jail for 15
days. She remained in jail until Friday, September 28,
when she was released on payment of the fine and costs by
her son Herman Hernandez. 3

_ The incident in the Clerk’s olfice * was need by em-
ployees present at the time, and the aftermath was known

to them. There was discussion of the episode among the
employees, not all of it favorable to Mr. Theckston. Word
that there was sotto voce criticism reached him, and on or

about Wednesday, September 25, he wrote and caused to

be typed and distributad to the employees a memorandum
regarding the episode which contained the suggestion that
he might arrange for the transfer of ‘‘persons who have

publicly criticized my actions.“ The memorandum added the
suggestion that if there should be a recurrence, the Clerk

would take ‘‘immediate action to dispense with the services
of the offenders.“ Theckston testified that his only motive

in preparing and distributing this mémorandum was to try

to get his critics to come forward so he could discuss the
matter with them. The defendants, on the contrary, in the
news stories and the editorial which are the basis of this
action, referred to it as a threat.“

A stenographer in the Clerk ’s office, Mrs. Ida iol, who
apparently took particular umbrage at the entire affair,
communicated with the defendant, Dennis M. Higgins;
whose aunt was her friend and whom she knew to be a
newspaper reporter employed by the Philadelphia Inquirer.
Higgins discussed the matter with a number of his superiors

and made some investigation of the story, as a result of

which the series of news articles, the editorial and the ‘‘let-

ters to the editor’’ which are en of in this suit are

published.

The first news article 8 on 1 September

30, one week following the incident in the Clerk’s office. It

1

Was placed on the front page under the two-column headline

reading Mother of Five Jailed in Camden When Free
Speech Irks Aide.“ The second appeared the following
morning, October 1, under the headline Wide Protests

Stirred by Jailing of Mother who Annoyed Clerk.“ In that ts

same issue the leading editorial on the Editorial Page was
captioned Court Clerk’s Despotie Arrogance.’’ The edi-
torial in its entire tone-and content was scathingly critical
of Mr. Theckston. On, Wednesday, October 2, appeared a
third. news story headed Bar Panel Probes Five-day Jail
Term for Mother of Three“; and on Friday, October 4,
appeared a fourth article headed ‘Whitewashing Feared in
Mother's Jailing.“ In that sanie issue of the paper there
were published on the editorial page three „Letters. to the

Qqditor, Purporting to be from readers, all of which were

likewise critical and condemnatory of the plaintiff. These
letters appeared in a single column under the following
black-letter heads: Right of Free e Petty oe
| anny,’’, and „Crying Shame. *

The plaintiffs maintained that these articles. were fac-
tually and in tone and content ‘willfully and maliciously
false and defamatory. The thrust of the defense was that
they were published i in good faith, with honest belief as to
their veracity, and were constitutionally privileged, under

the standards laid down in New York Times Company v.

Sullivan, 376 U. S. 254, 84 8. Ot. 710 (1964).

At the outset of the proceedings, the Court determined
and ruled as a matter of law that the plaintiff Howard J.
Theckston was a public official within the scope and mean-
ing of that term as set forth in New York Times Co. v. Sul-
livan, supra, and in Rosenblatt v. Baer, 383 U. S. 75, 86
S. Ct. 699 (1966). The Clerk of the District Court in any
county, particularly a county as large as Camden, presides
over a sizeable staff and is responsible for the administra-
tive handling of thousands of cases annually. Necessarily, g

‘his contacts with the public are numerous and his responsi-

bility for the efficient, fair and eer conduct of court

S

12b

business are correspondingly heavy. Although he is not an
elected official, the nature of his official duties and their

impact upon that very considerable segment of the publie

who find themselves involved in litigation in the District
Court, renders the Clerk quite properly an object of public
scrutiny and of public criticism in the conduct of his office.

Accordingly, the qury was charged, in the language of

Ne York Times v. Sullivan, supra, that the plaintiffs could
not recover unless the jury found that the defamatory state-
ments were published with ‘‘actual malice’’—that is, that
they were published with knowledge that they were false or
with reckless disregard of whether they ‘were false or not.
376 U.S. at pp. 279, 280; 84 S. Ct. at p. 726.

Moreover, the j jury was charged that the burden of proof

was on the plaintiffs to prove their case not merely by a

preponderance of the evidence but by evidence of convincing
clarity——that is, by clear and convincing evidence, ef. New.
York Times Co. v. Sullivan, supra, 376 U.S, at pp: 285, 286;
84 S. Ct. at p. 729.

The defendants argue Wine that the plaintiffs did
not sustain their burden of proof —that there was no mate-

8 rial falsity, and that, assuming that there was material.

falsity, the actual malice’’ . by the New Y ork
Times case was not shown.

In considering a motion for a new trial after a jury ver-
dict, the trial court is forbidden to invade the Constitu-
tional office of the jury by weighing the evidence, where it
is fairly susceptible of divergent inferences, and substitut-

ing its own judgment.“ Hager v. Weber, 7 N. J. 201, 210
(1951); Kulbacki v. Sobchinskt, 38 N. J. 435, 444 (1962).
The Supreme Court added, in Kulbacki v. Sobchinski, |
supra, at p. 445: cS :

What the trial judge must do.i is canvass the rec-

ord, not-to balance the persuasiveness of the evidence.
on one side as against the other, but to determine

whether reasonable minds ine accept the evidence

¢.

2

as adequate to 8 the jury verdict· or in the
language of Hager, to determine if the verdict be

so far contrary to the weight of the evidence as to
give rise to the inescapable conclusion of mistake,
passion, prejudice or partiality so that it cannot serve

to support the judgment * * If reasonable minds
might accept the evidence as adequate to support the

a Jury verdict, it cannot be disturbed by the trial

} court.“ (Italics suppliéd.) -

Applying the above guide lines, the Court is W
capably to the conclusion that the present motion must be
a denied.

The jury could find that there were numerous ‘factual
falsities in the oft-repeated newspaper accounts. But more
important, they could find falsity in the entire recital of
those facts and the characterizations of the plaintiff drawn
therefrom. The whole thrust of the articles was to present
the plaintiff to readers of the paper as an arrogant tyrant’ —
Who trampled on the rights of innocent persons who had
business with the court, and who wrongfully attempted to
‘suppress legitimate: criticism of his actions, whereas the
jury could have found that the. plaintiff did no more than
to take perfectly logical action to seek the assistance of the
authorities in dealing with a person who was indeed dis-
orderly and creating a considerable disturbance in his office.
It should be remembered, I think, that this office is a public
place and the maintenance of order therein is necessary not
just for the satisfaction of personal whimsy but for: the
orderly transaction of all the public business with which it
is charged. Falsity may lie not merely in misstatements.
of fact. but in the manner—the “‘slant’’ or light“ if you
will—in which facts are presented. One only need compare
the accounts of many events occurring daily in connection
with the present struggle i in Viet Nam which emanate from
the opposing forces in that struggle to see how differently —
and to what different ends the same ‘bate facts can be dealt
with. : :

“Yas

’ . 9 '
14b

Hare the paper chose to present an account of the ariest
of a person charged with disorderly conduct in what the jury
could find was a grossly distorted manner with the object

| of portraying the plaintiff es e despotic aiid arrogant person ;
(to use two defendants” own adjectival characterizations).
The jury could further find that such portrayal was false
and highly defamatory of the plaintiff.

Moreover, the Court feels that there was ample evidence
not only of the defamatory character of the publications, but
also that they were indeed published with ‘‘actual malice’’
in the New York Times sense. There was, to be sure, some
investigati re the story was written, but it was at best
desultory phazard. No real effort was made to check.
with eye witnesses other than Mrs. Agin, and no inquiry
was made as to her motives although there was evidence
from which it could be concluded that she was a bitter and
disgruntled person who for reagons of her own was attempt-

ing to satisfy a grudge against her superior. Much more
important than this, however, is the fact that the plaintiff
was given no bona fide opportunity to tell his version of the
story. Defendants argue that two telephone calls were made
to him—the first in advance of publication. But it is clear
that he was given no intimation of the type of story which
the defendants proposed to publish—much less that he was
about to be plunged into the glare of front page publicity
as the principal villain in a newspaper sob story. There-
after, although the story was iterated and reiterated in suc-
cessive publications, the only contact made by defendants

with the plaintiff himself was another brief and curt tele-
phone call from Higgins, hardly calculated to encourage the
plaintiff to state his version of the facts. The fact that he
then expressed a disinclination to do so is quite understand-
able under the circumstances. The plaintiff then had no rea-
son to suppose that any statement he might make would re-
ceive a fair and unbiased presentation from the defendants. -
Clearly the jury could find that these stories, if not willfully

false, were published with reckless disregard of whether
they were false or not. -

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15b

I am of course aware that the United States Supreme

‘Court indicated in New York Times Co. v. Sullivan, supra,

that a newspaper is not required to guarantee the absolute

correctness of all its facts. But this is say that a news-
paper has no duty to check its facts or that it may ignore

or even avoid obvious areas where this should be done.

The continuing barrage of repetition of the account of the
incident, which followed the initial publication, i is further
evidence, if that be needed, from which the jury could infer
actual malice. It might well be concluded that the defend-
ants were attempting to make a sensational story regardless
of the true situation and regardless of the nn effect
on the reputation of the plaintiff.’’

Defendants cite both New York Times Co. v. Sullivan,
supra, and Pauling v. National Review Inc., 269 N. V. S. 2d.
11 (N. Y. Sup. Ct. Special & Trial Term 1966) as authority
for their contention that the plaintiffs have not shown ac-
tual malice as defined in the New York Times case. On this
point both of the cited cases are factually distinguishable
from the present case. In New York Times the judgment
for plaintiff was reversed not because of its failure of proof
but because the Court’s charge did not lay before the jury
the proper constitutional standard; and while the Court did -
say that the proofs did not meet that standard, it is note-
worthy that the single publication there at issue did not even
mention the plaintiff by name. In Pauling the plaintiff was
a nationally prominent figure and the decision was that of
a trial court on, motion for dismissal at the close of plain-
tiff’s case, based on the facts of that case, which are wholly
different from those here present. .

In this case, the jury was charged as to the constitutional
standard laid down in New York Times. The jury rendered
its verdict in thedight of that charge and there was evidence
to suport that finding.

Finally, it is argued that the damage award was excessive.
There was W evidence from which the jury might con-

160

clude that the reputation of plaintiff Howard J. Theckston
was seriously damaged and that. he suffered mental and
emotional trauma as a result. I do not consider that either
the verdict in favor of Howard J. Theckson or the per quod
verdist in favor of his wife was excessive. *

The motion for a new trial is denied.

- Atexanper C. Woop, 33D /s /
_Auexanper C. Woop, Znp., J. C. &

SUPERIOR COURT, LAW DivISIOx./
Vol. II 542a :22 through 549a :8; 550:19-40; 556a':23-557a :16.

JUDGE’S CHARGE.

' In the case now before you, it is undisputed that the plain-

tiff, Howard Theckston, from March 1, 1961 to the present
time, has been and was, during the period of the publication
of these articles, the Clerk of the Camden County District
Court and as such had and still has a general oversight of
all the clerical work of the court, which includes keeping
records of all law suits filed in that court, which number in
the thousands annually, keeping £412) fiscal accounts, and
service of process, that is, summdns and complaints, serv-
ices of summonses and complaints on persons sued in said
court and also the serving on litigants and on attorneys
of numerous other types of papers having to do with litiga- ©
tion in court. He also has responsibility for leyying execu-
tions on property of persons against whom judgments have
been rendered to the end that such judgments may be col-
lected. I, therefore, charge you that the plaintiff, Howard
Theckston, was an@is a public official. It is also uncontra-
dicted that the alleged false and defamatory statements
which are complained of in this action related to Mr. How-
ard Theckston’s discharge of his official duties. Therefore,
I charge you, in addition to what I have already said, that

17b

where a defendant in a libel case is shown only to have cir-
culated the publication for the sole purpose of giving what
he believed to havé been truthful information concerning
the plaintiff in his capacity as a public official, the plaintiff
may not recover from the (413) defendant, even though the
contents of the article published may have been untrue in
fact and derogatory or defamatory of the plaintiff. In order
to recover damages for a defamatory falsehood relating to
his official conduct, the plaintiff must also prove to you by
clear and convincing evidence as I shall discuss that term,
that the offending statements were made with actual malice;
that is, with knowledge that they were false or with a reck-
less disregard hether they were false or not. That, you
may recall, is the contention of the,plaintiff in this case. In
announcing this rule the Supreme Court of the United
States expressed what it called a profound national com-
mitment to the principle that debate on issues should be
uninhibited, robust and wide open and that it may well in-
clude vehement, caustic and sometimes unpleasantly sharp
attacks on government and public officials.

Noy, I have used the word ‘‘reckless’’ in announcing this
rule; that is, that the plaintiff must establish that the of-
fending (414) statements were made with knowledge that.
they were false or with a reckless disregard whether they
were false or not. Recklessness, ladies and gentlemen, is a
state of mind and it is a state of mind which can destroy
privilege even though the defendant may have made the
statement honestly believing it to be true, or, in faet, with
an excessive honesty. It has been said if a man through
anger or through gross or unreasoning prejudice -has al-
lowed his mind to get into such a state as to become upset.
as to cast reckless aspersions on other people, but for which
state of mind which he could nét have believed to be true,

Retendants in publishing material statements which may
be untrue, does not constitute actual or express malice. The

*

7

, 18b -

defendants’ decline must have gone — mere negli-
gende or carelessness. It must have been reckless and with-
out proof of (415) such recklessness on the part of the
defendants, the plaintiffs cannot recover. Now, this Is not
to say that a person or newspaper may use calculated false-

cod; that he may knowingly and deliberately publish a lie

concerning any person and be free from liability merely
because such person is a public official. Such utterances do
not and should not enjoy the protection afforded by the Con-
stitution, but mere criticism of public officials and their con-
duct of public business, the interest in private reputation is
overborne by larger public interest in the dissemination of
the truth. If upon a lawful publication, for making a publi-
cation, the defendants have published the truth and no
more, they may not be held liable even though they were
actuated by express malice; that is, by actual intent to do
do harm to the plaintiffs and, moreover, even when utter-
ances are false the Constitutional principles of freedom of
speech and of the press preclude the attaching of adverse
‘consequences to any, except knowing or reckless falsehood,
even (416) if spoken out of hatred or malice, utterance hon-
estly believed contribute to free interchange of ideas and
ascertainment of truth, but to be knowingly false and false
statement made with reckless disregard of the truth, do not
enjoy Constitutional protection even when made respecting
public officials. Hence, we have the rule which I shall now
repeat; that, in order to-recover damages for a defamatory
falsehood relating to his official conduct, the plaintiff must
prove that the offending statements were made with actual
malice by which in this concept we mean with knowledge
that they were false or with a reckless disregard of whether
they were false or not.

you. find that the defendants f in good faith and
with reasonable cause for believing the facts that the arti-
cles complained of to be substantially true then your verdict
must be for the defendants, even if there were material
statements which were, in fact, untrue.

.

Now, ladies and gentlemen, this brings me to the subject

of the burden of (417) proof, which the ee must carry
in this case.

In the usual civil action a burden i is on the plaintiff to
prove his case by a preponderance of the evidence; that is

by the greater weight of evidence. To establish by a pre-

ponderance of the evidence means to prove that something

is more likely so than not so. In other words, a preponder-

ance of the evidence means such evidence as when consid-
ered and compared with that opposed to it, has more con-

vincing force and produces in your minds that what is.

sought to be proved is more likely true than not true.

Now, in this case the law goes one-step further and re-
quires that the plaintiff establish actual malice as I have
defined that term to you by evidence of convincing clarity.
The term convincing clarity or clear and convincing evi-
dence does not lend itself to the preciseness in definition,
but it is relative. The measure of proof required thereby
falls somewhere between the rule of burden of proof in the
ordinary civil (418) case which I have just stated to you and
the requirement in criminal cases, where the State must
prove its case beyond a reasonable doubt. Clear and con-

vineing proof i is proof which will produce in your minds a

flrm belief or conviction as to the allegation sought to be
established.

Now, in considering whether the plaintiffs have proved

their case by evidence of convincing clarity or by clear and g

convincing evidence, please bear in mind that the credible
| testimony i is measured by its weight and not by its quantity.
That i is, it is never measured merely by the number of wit-
nesses. In determining the weight of the credible testimony
and the credence you place in the testimony of the witnesses,
you may consider the demeanor of the witnesses on the
stand, their manner of testifying, their appearance, their

mental capacity, their power of observation, their closeness _

of atterition, the plausibility of their statements, their incon-

20b

U

ssistencies, their contradictions, and the interest that any
witness may have in the outcome. of the (419) litigation.

It is for you, ladies and Vaitlemen, to say based on a full
and fair consideration of all the evidence in the case whether
the plaintiffs have established by convincingly clear pre-
ponderance of the believable evidence that the publications
here complained of were materially false and were pub-
lished with knoweldge of their falsity or with reckless dis-
regard of whether they were. false or not.

Now, in determining whether the defendant, Triangle, or
the defendant, Higgins, acted with good cause and in a rea-
sonable manner in relying upon the information supplied by
Mrs. Akin, you must take into consideration all of the facts
which may include, but certainly is not limited to, testimony
covering the following. The fact that Mrs. Akin did not
come to Mr, Higgins as a total stranger, the fact on three
different occasions Mrs. Akin repeated her story to Mr.
Higgins in exactly or substantially the same way, if you find
that to be a fact, the extent to which the (420) story as re-
peated by Mrs. Akin to Mr. Higgins was corroborated by
the outside circumstances which he and his fellow workers
on the Inquirer were able by their researchers to gather
together, the fact that the memorandum of Theckston to his
‘employees indicated some concern about how he had treated
Mrs. Buridrago and concern over the reaction.of the em-
ployees to it, to that treatment; that is, the fact that. Mrs.
Akin had been employed in the office of the District Court
Clerk for many years and had typed the memorandum in
question, the extent to which Mrs. Akin’s information was
borne out by the records of the Police Department insofar
as her story related to matters in which the police would
be interest-d and in which they would be involved; and, the
fact that Mr. Theckston, himself, when interviewed by Mr.
Higgins admitted an incident of the kind described by Mrs.
Akin to Higgins, bearing in mind, however, that I do not
recall and, of course, again I defer to your recollection of
the facts, ladies and sees that there i is (421) any evi-

— ——— — — 7 :
„ i 9 : f
~~

21b

dence that any mention was madé to Mr. Theckston of any
inquiry about the memorandum or the note as such.

Further, i in determining whether or not Priangle and Hig-
gins actéd in good cause in a reasonable manner in publish-
ing the subsequent articles and this on the issue of their
malice, you must take into consideration all the facts again,
ineluding, but again by no means limited to such facts as
that interview of Mrs. Buridrago by Robert Thomas, a dif-
ferent reporter, and the photographer, Mr. Martin, who also
testified in this cause, as I recall it, verified the description
of her arrest as reported in the first article. If you find that
it did so verify it and that although Mr. Theckston was
again interviewed subsequent to the publication of the first
article, he at no time sought to correct anything contained
in the articles complained of nor did he by any other means
seek a correction or retraction, that is a matter for your
consideration and it has been dealt with extensively, I be-
lieve, by counsel (422) during their argument to you and is
a matter which you may consider i in your overall mn.
tion of the entire case.

So, in considering, ladies and e whether the
plaintiffs have carried this burden of proof, you should, of
course, consider all of the evidence and the inferences 9

be drawn from it.

1 ssid of recklessness that it is a state of mind. I repeat
as to malice that malice is a state of mind and it cannot be
readily established by direct evidence, but its presence or
absence may be inferred from. what the defendants didi
Thus, in considering this matter of actual malice you may
consider such circumstances as the use of language and
whether it exceeded the demands of the occasion or whether
it is in terms beyond and disproportionate to the facts which
the defendants have reason to believe.

Vou may also consider the extent to which, I beg your
pardon, You may also consider the extent of the publication
and the frequency of appearance of the articles (423) com-

22b

plained of and of other articles which it is undisputed were
published dealing with the story and containing repetitions
of all or part of the facts contained in the initial publication.
Ag to these, I specifically charge you that they are not com-
plained of as such, as ground for damages, but are to be
considered by you in considering the matter. The axe in
‘evidence and are to be considered by you on the question of
whether, on all of the evidence in the case you should con-
. clude that there was express malice in the publication of the
‘articles and the editorial, which are the subject of the com-
plaint in this case, that is Exhibit P-1 through P-6 inclusive.

Now, there are places in the articles where there is lan-

guage which is quoted, purports to be quoted from other

sources, from an informant and the informant said, et cet-
era, et cetera. I charge you that it is immaterial that a libel |
if composed by the defendant is couched in the form of
hearsay that a man may slander or libel another as effec-
tively by circulating rumors (424) or reports or by putting
his communication, his written conimunication in this case
in the shape of hearsay as by making distinct assertions of

the defamatory matter and giving it out as truth within his

own knowledge for the accuracy of which he pledges: his
own veracity. As to the editorial which is. Exhibit P-3, if
you should find that this editorial consisted of the writer’s
opinion based on the facts set forth in news articles, then I
charge you that the plaintiff is not entitled to recover on the
basis of this editorial, unless, you find that there were state-
ments in the article which again were materially or substan-
tially untrue and were. published -with Actual or expressed
‘malice, as I have defined that term to vou, and that the
comment contained in the editorial did not really relate to
the facts, I beg your pardon, that, unless, the facts, com-
ment, contained in the article reasonably related to the facts
in the news article, it was not a fair comment.
i

Now, ladies and gentlemen of the jury, based upon what
I have so far said to you as to the law governing this case,

8 it is up to you to bring in the following possible verdicts.

2

—

5 K-» swath
— hic ni tn A isan Stone
. «
>
is „

&

28

First, if y you find that none of (430) these six publications
were materially false, that none of them were published by
the defendants with actual malice, that i is, with knowledge
that the publications were false or with reckless disregard
of whether they were false or not, if you fail, in other words,
to find that the plaintiffs have satisfied you by evidence of
convincing clarity, that all or séme of these six publications
were published by the defendants with actual malice as I
have defined that term to you, then your verdict will bene
of no cause of action and that ends your consideration of
the case.

"If, on the other hand, you find that the “plabatift iene
established by clear and convincing evidence that one or
more of said publications was materially false and that such
publications were published wi a actual malice, that is with .
knowledge of their falsity or with reckless disregard of
whether they were false or not, then you will aie to deal

with the e of damages.

Now, ladies and nd gentlemen, let me just briefly again re-

capitulate your possible (442) Verdicts in this case. I sug-

gest to you that you should examine each of the publications
sued upon separately and you should ask yourself with
respect to each of them the following questions. First, did
the defendant publish untrue statements regarding the
plaintiff, Theckston? Secondly, if there were such untrue
statements published were they of material signficance in
the context of the articles? Thirdly, if there were such un-
true statements did these particular untrue statements de-
fame the plaintiff, Theckston, by holding up to hatred, con-
tempt, or ridicule and if there were such untrue statements:

: were they motivated by 8 malice as 1 have defined that

term to you?

Now, I have prepared, ladies and. gentlemen, a memoran-
dum, which with the consent of counsel, I’m going to hand

Jou. When you finally retire to * * ä 80

*

* „
— 4 a

ing his duties as Clerk of
The County District Court has broad jurisdiction to handle

24b

you may * a ould to the form of 3 your vende; if you
find that none of these six publications was, as I said, ma-
terially false and was published by the (443) defendants —
with actual malice, that is with knowledge that such publi-

cations were false or with reckless disregard of whether
they were false or not, then your verdicts I said will be

one of no cause of action and that ends e consideration

of the case. a : 2

On the other hist if. you find that the e plaintiffs Dave es-
tablished by clear and convinc'ug evidence that one or more
said publications was materially false and that such
publications were published with actual malice, that is
with knowledge of their falsity or with reckless disregard

of whether they were false or not, then you * proceed to
the question of en E

ö __ “APPENDIX FOR. RESPONDENTS: *
( Petitioners here)
pp. 32a :21 thru 44a 23; 45a 9-37

Now, the plaintiff 's version as the Court recalls it is that
on the afternoon of Monday, September 23, 1963, the plain-

tiff, Howard Theckston, . routinely engaged in perform-
e Camden County District Court.

the litigation of comparatively small civil cases. In a county
‘the size of Camden, the volume of such cases is quite large

and the Clerk, whose job it is to keep and maintain all rec-

ords on each case, from its inception to its conclusion, has

astaff of fifteen to twenty persons working under his direct

supervision and consigting of subdrdinate clerks, typists,
stenographers, (382) file clerks, et cetera; and also, Ser-
geants-at-Arms and Constables, whose job it is to serve sum-
monses, notices, orders and papers of the like or nature on

8 9 for whom they were eae aie

— — — . —ñ䜗——ä 2

ö

The Clerk’s office in Camden occupies a large room, which
you will recall, is designated as Room 311 on the third floor
of the eighteen story building which serves Camden as both
a City Hall and a County Court House. A reception area
where the members of the public having business with the .
office enter, is separated from the working area of the office
by a fair-sized counter. , :

Acegording to the plaintiffs’ witnesses, on the afternoon
of September 23rd, a woman and a man, who were not
immediately identified, but, who, it is now generally agreed
were Mr. Molina and Mrs. Buridrago, entered the office.
Almost at once, Mrs. Buridrago started to talk in a loud
and strident voice. Mr. Theckston and several of the wit-

nesses described it as shouting. Nevertheless, it was ap-
parently made clear (383) that Mr. Molina had a question
about a landlord and tenant matter and that Mrs. Buridrago
said she was there, as she put it, to interpret“ for him. 8
According to the witnesses for the plaintiff, Mrs. Buridrago . .
refused to quiet down although requested a number of times .

to do so. Finally, Mr. Theckston says he warned her if she
would not be quiet he would call the police, whereupon, she

told him to go ahead. Mr. Theckston did. telephone the
police and Officers J. erome Spratley and Daniel Domeraski
responded to the call. When they arrived, according to their
testimony, they observed that the woman was talking loudly
and gesticulating. Officer Spratley asked Mr. Theckston
What he wanted and Mr. Theckston replied he just wanted
the woman removed from his office. The Officers then told
Mr. Theckston if he wanted her forcibly removed, it would
be necessary for him to sign a complaint against her. Mr.
Theckston said he would sign such a complaint. The Officers
then requested Mrs. Buridrago to leave and she refused.
The Officers, (384) according to their testimony, as I recall
it, then took Mrs. Buridrago by the arms and attempted to
escort her from the offite. At this point she sat on the floor, :

so the policemen dragged her; screaming and crying, out of
the Clerk’s office and for some distance down a corridor to
a police elevator, whose entrance was in the office of the

26p..
Clérk of the Camden City Municipal Chest which i is located
on the same corridor ag the District Court Clerk’s office. -
Mrs, Buridrago, according to the Officers, was: taken by
this elevator directly to the Camden City Police Headquar-
ters, where Acting Sergeant Dominick Palese was on duty
as Desk Sergeant. Here, Mrs. Buridrago was booked and
4 according to the testimony, Mr. Thieckston signed a com-
plaint against her. She refused at that time to give her name
and was committed to the County Jail overnight on a tem-
porary commitment order issued by the Desk Sergeant and
from the police station she was. again physically 3 —
to the‘elevator, transported thereby to the sixth floor of the
Court House where (385) both the City and County Jail
are located. She was admitted to the women's section of the
County Jail. The testimony, as I recall it, being that the
- City Jail had no accommodations for — Here she
remained overnight and the next morning, Tuesday, Septem-
ber 24, Mrs. Buridrago was taken before the Municipal
Court, before Municipal Judge Julius Sklar in Camden City -
Municipal Court. Here, on the complaint signed by Mr.
Theckston she was charged with disorderly conduct and
pleaded guilty to the charge, whereupon the Magistrate -
after hearing a brief statement from Mr. Theckston and,
according to-my recollection, it is not clear whether that
statement.was made under oath, imposed a fine of $25 and
$5 costs, and in default of payment, committed her to the
County Jail for fifteen days. She remained in jail until the
following Friday, September 28th, when she was released
upon payment of the fine and costs by her son, aaa
Hernandez.

The incident, of course, was witnessed by the employees
of the Clerk’s office who (386) were present at the time.
Mr. Theckston, as I recall it, says there were about thirteen
-persons then present. The first story in the Inquirer men-

. tioned fifteen. Be that as it may, the ‘incident appears to

have triggered some unfavorable comment among the em-
ployees. There was discussion of the episode in the District

Court Clerk’s office and all of it favorable to Mr. Theckston.

9

Word that a. was “sotto woe 2 ‘apparently |
reached Mr, Theckston. i

Mr. Theckston thereupon pre yer y on or about, :
Wednesday,. the 25th, wrote and to be typed by Mrs.
Idah Akin, whom he says gerved him as his confidential —
secretary, a memorandum addressed to the employeed re-
garding the episode and suggesting. that, he might arrange

for the transfer of „persons who have publicly criticized

my actions’’. The note appears to have gone a step further
and suggested if there should be a recurrence, the Clerk
would take immediate action to dispense with the services
of the offenders. Copies of this memorandum, signed by

* Mr: Theckston, (387) were distributed by him to the employ--

ees of the office. Mr. Theckston says that his only motive
in doing this was to try to get the critics to come forward

so he could discuss the matter with them, The defendants,

in the news stories and editorial, which are the basis for
this suit, referred to it as a ‘‘threat’’. The letter or memo
is in evidence and its meaning or construction are for you
to judge from a perusal of it, considering it along with all

of the other evidence in ‘the case. E 8

) . .
4 . . —
ey it was . this background of events that the
* alleged * the plaintiff to be libelous ener 7

The first intimation which the plaintiff had that there
would be newspaper publicity came on the evening of Sun-
day, September 30th. On that evening about seven or 7:30
P.M. he received a telephone call from a man who, according
‘to Mr. Theckston, identified himself as being from the Phila-
delphia Inquirer. Mr. Theckston says, as I recall it, that
the caller did not further identify himself, but it appears
to be acknowledged that Mr. Higgins, the ¢o-defendant was
the caller. Mr. Higgins, incidentally, said that he did iden-
tify himself as Dennis Higgins, but so far as material, this

according to Mr. Theckston, asked if Mr. Theckston had
. disturbance in his office and Mr. Theckston says he
_ the. caller briefly what happened and pointed out that the

incident happened a week before. He says he told the caller -
the woman had been drinking.“ After this brief conversa-
tion the (389) calles, according to Mr. Theckston, said,
„Thank Fou,“ and hung up. It is, as I recall it, undisputed
that the caller made no. reference to the note or to the”
impending publication of the story. 3

“+ Aout. midnight or one 0 ‘clock. A. M., the Theckstons be-
gan to receive anonymous telephone calls alluding to
mother of five children that was sent to jail’’. All of the
calls were condemnatory and some were threatening and
they persisted at intervals. throughout the balance of the
night. About 7:30 A.M. on Monday, September 30, Mr.
Theckston bought a copy of, the Philadelphia Inquirer in
Camden on his way to his office and found spread on the
front page the story headed Mother of¢five jailed in
Camden when free speech irks aide“. This is in evidence
and designated as Exhibit .

is a fact which is in issue for you to resolve. The ina
ld

This is the ‘first publication of which the plaintiffs com-
plain. It was followed on Tuesday, October Ist, by the arti-
cle which is Exhibit P-2 headed Wide protests stirred by

jailing of mother (390) who annoyed Clerk“. In the same
issue of the paper appeared an editorial, which | is in evi-
dence as Exhibit P-3 and which is entitled Court Clerk's
despotic arrogance which is scathingly critical of Mr.
Theckston. On Wedesnday, October 2nd, there appedred .
the article P-4 headed Bar panel probes five day jaibterm
far mother of three. On Friday, October 4, there appeared
still another article, Exhibit P-5, headed ‘‘Whitewashing
feared in mother’s jailing’’. In that issue of the paper there
were published on the editorial page three so-called letters
to the editor’’ which were given the following black-letter-
heads, Right of free speech“ — „Petty Tyranny’’—‘‘Cry-
ing shame. These appear in a single column and are to-

9

; 29b |
‘>. © gether marked P. 4 An the letters appear to be Mebiy
i dtitiva} of Mr. Theckston.

All of these articles, l I have said, are in ident and it „
is based on their defamatory character and the adverse, ge
consequences ensuing therefrom that Mr. and Mrs. Theck®
ston bring their suit. . 5 a

(391) There were other sited published dealing ee
i r which have been admitted in evidence in this case U
4 fh appeared not only during the week between Sep-
mber 30th and October 4, but subsequently during the
month of October, up to and including, I believe, as latę
ae as October 23rd, but only the articles which I. have referred
21 to are offered and are to be considered hy you on the issue
of damages to be awarded the plaintaiffs, assuming that
you reach that point. The others are to be considered by
you in connection with the question whether i in the publica-
tion of the articles sued upon the defendants, the Inquirer
and Higgins, were published ‘‘with express or actual mal-
ice.“ With this term I propose to deal very shortly.

4

* Now, the plaintiffs assert that these articles contain many
: _ Statements which are false and which are calculated to in-
jure the plaintiff, Howard Theckston, in his reputation and
in his position, and they say that he was indeed so injured. \

; j | | bet us briefly review some of the 92) respects in

the plaintiffs say the articles were false. —
0 0 chief

It would appear that the articles which furni
foundation for the plaintiff 's complaint in this action are
the first three, which are in — as Exhibit P-1, P-2 and
1208

ae { 8 I be first of these, the from page articles which .

„
eke yy Radiat eee b

in the Inquirer for Monday, September 30th, 1968, would =
seem to contain most of the facts which continue to be re-
Peated and rehearsed in the subsequent publications.

Let us then examine P. 1, the article headlined . Mother of
five jailed in Camden when free speech irks aide“. *

4

3 „

x

article to be false.

One. He says that Mrs: Burkireko was not the mother of |

five children. He produced evidence tending to show that

she was the monther of only one child and that this child

was a son who had attained full (393) age and was rai
and assisting in the support of the family. It does ap

however, that Mrs. Buridrago had under her care, at .
‘two minor children; Jacqueline age thirteen, and Peter,

age twelve, the daughter and son of her sister-in-law, Santa
eee Oy of these children being i in their teens. Also,
a it appears that there was living in the same household one

*dren of her

*

Secondly, the plaintiff says it is not tiie: Mes. Buridrago

was denied freedom of speech. He says that he called the

police when she begame uncontrollably noisy and et,
in his office. 3 m7 :

5

Thixdly,” Mr, Theckston silts that the statement ies

that the five children were left without food, protection, or
money, as a result of his actions and he says that that state-
ment! is false.

Fourth, he says that to — Mrs. e as an inter-

preter i is false:

Five, he denies that he shouted at Mrs. Buridrago and

that he told her to shut (394) up’’ or that he said tell
that woman to be be quiet and he specifically denies that he
had her jailed as was said in the story. He maintains that
she is the one that did the shouting ; that the woman was
‘sentenced to jail by Judge Sklar in default of a fine only

after she pleaded guilty to a charge of disorderly conduct’

—

at a hearing held in the Camden City Municipal Court.

~ J The Plainti turther maintains that the statements that N

he was ange by criticisms of his part in — the wo-

As 1 recall it, the following are some, not necessarily all,
but some of the respects in rich kr. Theckston claims the

Magdalena, nineteen and married and with infant chil-

.
a
.
a
4

.
4
3

3

©

‘ man to jail and that e „elend to crush the ‘right of free

ech for others who werk in his office are false. He denies
at he was angered and he states that although he wrote

and circulated the document which has been repeatedly re-
ferred to as the note“ or the memo“ he did so only in an

effort to find out who the 1 or ee N people 5
were.

*

Again, the plaintiff denounces 48 false the 4 ae that

the. woman, t .* Mrs. eee 2 that she had N

five children.
(395) He further says Ut it is false to report that the

woman was found guilty. He says that she pleaded guilty -

and adds that she apologized in the.court for her conduct.
Further, with reference to te note, plaifitiff claims that

the statement that everyone was bitter was false. He says :

that no one complained to him: 8

He also says it is —— to say that the employees were

afraid of him.

He, himself, was misquoted i in ie telephone jimi

7 which he had with a representative of. the Inquirer, pre-

sumably Mr., Higgins. He denies that he told the repre-
sentative or told Higgins that she was just a drunk' or
that she: was a chronic offender in the city“ or that she
hits the bottle quite frequently“ or the Judge knew her

right away“. He does testify, as do a number of witnesses,

that Mrs. Buridrago had been drinking, but he denies mak
ing any of the other statements. He also denies saying that
she was.“ under the weather“ or that she wouldn't cn :
so I had her arrested’’. 8 es .

(396) Plaintiff further denounces as false the statement
implying that the source ‘of much of the information Was a
‘“spokesman’’ for other employees. He denies that anyone
spoke or could speak as the representative of. ay number

of City Hall employees.

The second article, as you phew, contains W that i is

repetitious of the Article of September 20th. But it does

32b

contain additional statements which the plaintit alleges to
be ase „ B ;

He repeats that Mrs. Buridrago was not sailed "because

= she annoyed Clerk, as the headline says, but because of and
Po following her plea of guilty to a disorderly conduct char ge.

i He says that it is untrue as this article puts it that he
5 ‘‘attempted to. mile the employees i in the office who were
critical of him. :

He says that the purportedly anand n *
‘tipster! that ‘‘we’re scared to death of him’’ is false,

He says nobody was afraid of him and (397) he says that

is not true, as the artiele says, that he stormed into his

office on the morning of September 30th, at 8:30 in the morn-
ing, received a telephone eall and was gone most of the day.
He says that, in fact, he arrived at the office before 8:30 and
‘was occupied the entire day in preparing the ‘monthly report
of the Court activities which he is regularly required to
send to the administrative director of the courts.

Mr. Thecston also says that it is untrue as the article
puts it, that he „rules his office with an iron hand“ and
that he never shows compassion to persons who come un-

der his jurisdiction’’. He points out that no one comes un-

der his jurisdiction, his function merely being administra- ~

tive and clerical. a as 2
In the same issue of the Inquirer as the article hosted

P-2 in evidence appeared the editorial which bears the —

gination P-3. The editorial appears to contain nothing which

is factually new, and in tone and language it speaks for it-

self. (398) The plaintiff, says that both in its factual refer-

ences een and description of him
: : bene it is false and defamatory. . ;

The remaining two news articles as to which the plaintiff
complains are those which appeared Wednesday, October

And, 1963 headed Bar panel probes five day jail term for

mother of three and the one which appeared Friday, Octo-

— ttacateacow i wi somithe whee at
2 +

3

weet 2
—

*
ens

A 3³⁰ |

a 4, headed ‘‘Whitewashing touted: tii mother’s jailing”’.

These report further developments following ‘on the —

lushing of the earlier stories in the way of investigations of

the Incident by a Committee of the Camden County Bar

Association. They report also the offering of a resolution

of censure by a number of the Camden County Board of

Freeholders which failed of adoption by that body and i in-
quiry by City Councilman Mario Rodriguez, into the con-

duct of the police in the incident and comments by municipal =

and county officials. eS

As I recall it, these articles did not contain and this
is 3 point which has (399) been argued to you, did not con-
tain any reference to an investigation or any findings with
respect to this incident made by a Committee of Coun-
cil 10 of the Civil Service Association. Each of the articles
which I have referred to contains a resume of the facts

~~ earlier reported, although, it is noted that in the article of

October 2nd, Mrs. Buridrago is referred to as the mother
of three. while in that of October 4, there is simply a state-
ment, the body of the text that ‘‘two minor children were
left alone while she was imprisoned’’. Mr. Theckston con-

tends that even this is factually false. i

The. plaintiffs produced a number of witnensee—Diatrict

Court Clerk’s office employees, such as Mrs. Quattrochi,

Mrs. Furigone and others, and attorneys such as Mr.
Deighain, Mr. Grazkowski, Mr. Muller and others to show
the extent of interest and comment that these stories aroused

and their impact on Mr. Theckston’s reputation. You also

have the testimony of both Mr. Theekston and Mrs. Pheck-
ston as to the consquences of the publications of these (400)

articles as they felt and observed them.

Now, on their part, the defendants produced a ates an
of witnesses to recount for you their version of the episode

in the Clerk’s office including Mrs. Buridrago herself, Mr.
Molina, the gentleman whom she accompanied to the Clerk’s
office on September 23, 1963, and Mrs. Akin, a 8

: for a * of N in the Clerk’s office.

NE 3 3 | |
Bri iy as I Leal it, the defendant’s version is that Mrs. 4

2 drago accompanied Mr. Molina to City Hall or to the
Court House on September 23rd, 1963 when he had instruc-

tions to appear in court in connection with a landlord and —'

- tenant action against ‘him. It would appear that he was
) tharged With-owing more rent than he believed was due. Mr.
Molina, you will recall, spoke through an interpreter and _ -
from his testimony and that of Mrs. Buridrago it would ap-
‘pear that Mrs. Buridrago accompanied him on the day in
question to act as his interpreter, due to his somewhat lim-
iteéd command of English.. —

(401) On arrival | at the Court House they went first to: a
‘courtroom where apparently. the Court was in session. An
-- atteridant, after a brief colloquy, directed them, to the
- Clerk’s office on the third floor. They went to the Clerk’s
office and spoke initially to a woman standing behind the
counter. This woman looked at their papers and in turn
called: Mr. Theckston. Mrs. Buridrago stated that when
‘she attempted to speak for Mr. Molina, Mr. Theckston told
ber to shut up. She rejoined in kind and he threatened to
call the police, whereupon, she replied, ‘‘Go ahead. You
can't do anything to me.“ She says Mr. Theckston then
went to the telephone and she told Mr. Molina that Mr.
Theckston was calling for his records. She says that the.
police came five or ten minutes later and on Mr. Theckston’s
instructions grabbed her an took her out. As she recalls it,
she was taken to an ‘elevator’ and transported directly to
5 the jail on the sixth floor where she was taken into the jail
by a matron. Here, she remained until the following morn- -
ing when she (402) was taken before J fudge Sklar in the .
Municipal Court. She was not represented by a lawyer and
she says that the complaint. was not explained to her.. She
says the Judge asked her if she was guilty and then see
answered, Ves,“ and apologized to Mr. Theckston. She
: was, thereupon, sent to jail for 15 days when she could not
pay tife $25 fine and $5 costs and she remained in jail until
the following Friday, the 27th, when she was released about
7:30 P.M. after her son paid the fine ahd costs. Mre. Buri-

/

* 3 * ee ej
4 * . 2 . „ J - ; 5
„ 8 . 5
a : : 8 :

5 arago’ then told of her tern with an higdiver polities 5
7 * gpa: e ee on nee nee 1
30th.

N ae N K

oe —. ° ore respect to the voter and accuracy of the articles, *
13 _ Mrs. Buridrago said as far as laying within her e anaes
‘they are true. Ags ’ ;

As to her children, she 0 that she has one son
, and she is responsible for the care of * two fame chil-
. dren. ‘ 3
According to Mr. 8 the exigencies of-his « em-
plwKoyment prevented him to be home during the day to care
for these (403) youngsters while his mother was confined
and L recall that Mr. Molink testified that he took them to his
bouse for something to eat, at least, on the evening of the:
| day that Mrs. Buridrago was arrested. “Gen?
It might perhaps be well to note, as to Mrs. ‘Buridrago’ 8
story, that apparently she does not personally recall being 8
taken to the police station and booked on the afternoon of
7 pe appa 23rd. She says she was taken straight to the
„ On the other hand, the two police officers, Mr. Palese,
ey ie ‘the acting Sergeant, and the police matron, Mrs. Jaskolski, |
2 “all testified that before being taken to jail she was booked
after a fashion in the Police Headquarters in the basemer
The weight and credibility to be attached to all this testi-
mony and ‘the inferences to be drawn therefrom are, of
course, for ne to determine as the sole and exclusive _—
. Of the facts. :

Ms. Akin told you her version of the ande W
Mr. Theckston and Mrs. Buridrago and of the arrest as
bhbe observed it. :

(404) Mrs. Akin further told of the preparation of the
1 controversial memorandum which figured so prominently in
+ 4 * .>. the artitles complained of and of the feelings on her part
3 . ‘which prompted her to communicate with Mr. Higgins,
whose aunt was her friend and whom she knew to be em- =
—, by =. ee 5 . „

ie . 5

‘fee
— &

>

‘Asa part of the coinsideration of arriving at your con-

' elusion as to whether the reports made by the defendants

in this case and published by them were, in fact, substan-
tially true or substantially false or whether they were
* in good faith or with knowledge of their falsity
ith reckless disregard of whether they. were false or
issues have also been very sharply raised as to the
ibility of some of the witnesses and some of the testi-

adduced before you; and whether or not that testi-

many i is-worthy of belief.

Now, ladies and gentlemen, I charge you that if you
believe that any witness in this case knowingly and willfully
testified falsely to any-material fact in this case, (429) you
may give such weight to his or her testimony or other points

a you may think it entitled to or you may disregard it

altogether. False in one thing, false in all, as we put it.
The law expresses it in Latin ‘‘falsus in uno, falses in omni-
bus is not a mandatory rule of evidence, but it is rather
a permissible rule or inference rather that the jury. may or
may not draw when convinced that an attempt has been
made to mislead them in some material respect. Now, that
= say that if a witness Nl. in detail, this

deprive his evidence of all ility, but it is rather
as L say a permissible inference that the jury may draw,
may or may not draw as they see fit, when convinced that
an attempt bas been made to mislead them in some material
respect and that is a matter Tor your 9 ladies and

4

42

terially false and was published by the defendan ithe

wr

; P | 8 8 2 ‘
(Petitioners here) p. 46a.
12 - I TO JURY.

1. If you find that none of these 6 publications ma-

were false o reckless disrègard of whether they were
. false or not, then your verdict. will he one Ve. 0 Cause 07
Action.

2. If you find that the plaintiffs have established by clear
and convincing evidence that one or more of said publica-
tions was materially false and that such publications were
published with actual malice, i e. with knowledge of their
falsity or with reckless disregard of whether they were false
or not, then you proceed to the question of damages.

Your possible verdicts for compensatory damages in :
favor of the plaintiffs and against the defendants are as
follows : Triangle Pub. Ine. & Dennis M. 7 f

Comm pensatory Damages—Against Defendants Jointly

A. In favor of Howard J. Theckston (one.
S 5. Oe re ee Pe 860,000.00

B. In favor of Caroline Theckston (one lump
e $20, 000.00

If ou conclude thaffpunitive damages. are to be awarded
against either or both of, the defen should be
assessed against the defendants separately and may be
awarded as follows:

Punitive Damages—A gainst Triangle Publications

In favor of Howard J. Theckston (one lump

38b
Punitive Damages Against Dennis M. Higgins:
In favor of Howard J. Theckston (one lump

No punitive damages agaist Triangle Pub. or Dennis M.

(Handed to Jury by Court ie 5560 l doe c

JUDGMENT OF SUPREME COURT OF NEW JERSEY.
(Filed July 8, 1968. .

Pd

“ Supneme. Court or New Jen ERSEY.
re September Term 1967. )

Howarp J. THECKSTON, et al.,

‘

* vs.

Trance Pusuications, Inc., et al.,
: Defendants-Respondents.

% | On Petition
yn ee ee for Certification.

To Appellate I Divisign, Superior C Court:

A petition f chrtification having been submitted to this
Court, and the Court having considered the same.

It is hereupon Ordered that the inant for certification
is denied with costs.

‘

Wrrwess the Honorable J ſoseph Weintraub, „biet Justice,

at Trenton on the 8th day of July, 1968.

J oun H. GRA,
_ Clerk of the 3 Court.
A true copy.
Jouy H. Grupza,
Clerk.

Plaintiffs-Petitioners,

Ae anton iia ae

39b

MANDATE ON REVERSAL.
(Filed April 25, 1968.)

It is hereupon ordered and adjudged that the judgment
of the said Superior Court, Law Division, Burlington
County is reversed’ without costs and that the record be
remitted to the Superior Court, Law Division, Burlington
County to be there proceeded with in accordance with the

rules. and practice relating to that Court, consistent wie |
the opinion of this Court.

Wrrxxss the Senior Judge of the Part, Superior Court
of New Jersey, Appellate Division.

J udgment entered: April 25, 1968.

Mandate issued: May 23, 1968. |
/s/ Mbatmer d. Newmar, Jn,

Mortimer G. Newman, Jk,
i | Clerk of the Superior Court.

La
4

(On Petition for Certification to N. J. Supreme Court. 7
STATEMENT OF QUESTIONS INVOLVED.

1. Assuming the whole record” of the trial in libel
suit by Clerk of District Court against newspaper, was

before the Appellate Division and examined by them, did
the Appellate Division err in revefsing jury verdict-judg-

ments for plaintiffs because the proofs before the trial court

were insufficient to present a jury issue of liability under

and as required by the Rule of actual malice’ im: New
York Times?

2. Assuming that only the printed Appendix of the 2 5
fendants and the printed Appendix of the plaintiffs were

before the Appellate Division and only examined by them,

did the Appellate Division err in reversing jury verdict-

: — —— — —

wad

1 f
judgments for plaintiffs becnuse the proofs before the trial
- gourt were insufficient to present a jury issue of liability
under and as required by the Rule of „actual males“! in
New York Times? |

3. Did the Appellate Division err in not considering and

- holding that the trial court was in error in holding that
plaintiff was a ‘‘publio official“ under the New York Times

rule, where plaintiff objected to such holding throughout
the trial and in Exceptions to Charge?

4. Did the Appellate Division err in reversing the jury
verdict-judgments of the Law Division and in remanding
the matter for the entering of judgments in favor of the
defendants, when they should have affirmed said judg- :
ments! ; |

5. Plaintiffs repeat and incorporate herein by refersnce

‘Counterstatement of Questions Involved in their Brief

before the Appellate Division, No. 1 (a) (b) and (e).

at N * f ) 2 a ; 3 2 :

1
(Brief for Respondents, Petitioners here.)

1. (a) Can a libel judgment for a court clerk against
newspaper be reviewed on Question 1: Complete absence of
evidence of New York Times ‘‘actual malice’’, and Question
5, whether verdicts were excessive, based upon attenuated
Defendants’ Appendix, reduced to about 1/9th thereof,
supporting defendants’ points, and omitting substantial
portions necessary to be relied on by plaintiffs and essentiat
to consideration of issues and decision of questions on ap-

peal, beyond plaintiffs’ financial ability to print; or

(d) in view of greatly attenuated trial record, should
“appeal not be heard or dismissed regarding these ques-
tions ; or : :

— a 4b „

denial of defendants’ motion for new trial upon grounds

verdiets were contrary to weight of the evidence, excessive

and contrary to law, and trial judge holding ‘‘that there was
ample evidence not only of the defamatory character of the

actual malice’ in the New York\Times sense“.

publication could be considered evidence of malice

3. Was the plaintiff 8 wife entitled to * 8 for
loss of consortium?

4. Did the court below correctly charge the jury concern-

ing the damages which plaintiff’s wife could recover, assum-
ing she was entitled to recover for loss of oõnsortium : ä

5. Were the verdicts excessive?

—
—

(o) should appeals be considered on factual findings of
trial judge on his determinations of defendants’ motions,
charge to the jury of New York Times Rule and that there
were disputed questions of facts to be decided ‘thereunder;
and eee 2 8 5
jury having brought in unanimous verdicts for plaintiffs,

publications, but also t t. they were indeed published vitn

2. Otherwise, plaintiffs meet hérein defendants’ desen,
stated. 8

. of appellants, Respondents here.)

; STATEMENT OF QUESTIONS INVOLVED. ox
1. Where the plaintitt i is admittedly a public official, can 8

a libel judgment in his favor be sustained when there is a

complete absence of evidence. and. that the articles com-
plained of were published with ac knowledge of any
falsehood or reckless disregard of the ä

2. Was it not error for the court below to Al
evidence publications in defendant's newspaper which were
not sued on and to instruct the jury that the fact

9.

—
2 .
“4
°
.
8

+

.
.
—
.
-
*
<
*
5 .

sats aii Pe ee

Received by Dominic Palese.

EXHIBIT nl.

Camden, N. Pa Sept. 23, 1963.
Name—Buridrago, Marguerit; Race—P. R.

Address 310 Washington St.; Sex- Female.

City and State Camden, N. J. Age 41.
Location of Arrest Room 311, om! Hall.
Condition Drunk. — ä
Arrested by.. Domeraski; J. e

On Complaint of Howard Theckston.

Cell No.—C. J. * . 9
J ailer—A. Monroe.
Address Room 311, City Hall.
Charge—Disorderly Conduct.

„

Time—3 10 P. M.
Disposition and Date-—9-24-63.
15 days or $25. 00 plus 85.00 costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0242%3A2. Public record. Not legal advice.