Amicus Curiae Brief — Rosenblatt v. Baer

\

TU! U Office-Supreme Court,

aus 26 1965 FILE COPY FILED

CT 11 1965

Tx THE JOHN F. DAVIS, CLER

Supreme Court of the United States

Octoser Term, 1965

No. 38

~-

AurrEeD D. RosEnsiart,

Petitioner,

—vVs.—

Frank P. Barr,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

NEW HAMPSHIRE

MOTION FOR LEAVE TO FILE AND BRIEF OF

AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

Osmonp K. Fraenxen

120 Broadway

New York, N. Y.

Epwarp J. Ennis

165 Broadway

New York, N. Y.

Metvin L. Wor

156 Fifth Avenue

New York, N. Y.

Attorneys for the American Civil

Liberties Union, Amicus Curiae

—————————— NNN

a ammmamaamammme mi tance titi sais

INDEX

PAGE

Motion of the American Civil Liberties Union for Leave

to File a Brief Amicus Curiae 1

Interest of the American Civil Liberties Union .............. 3

IE SE SO IOs cectnctsiesnticoniniticantiichiateninniiniandlintcmcaies 3

ARGUMENT:

I. The instructions of the trial court, authoriz-

ing the recovery of damages based on findings

that defendant’s charges were not “based on

reasonable grounds” or that they were pub-

lished with “ill will, evil motive, intention to

injure, or a wanton or reckless disregard of

the rights of others”, are inconsistent with the

decisions of this Court in New York Times Co.

v. Sullivan and Garrison v. Louisiana ............ 7

II. The constitutional principles of New York

Times Co. v. Sullivan are applicable to charges

of mismanagement against the supervisor of

a publicly-owned recreation area .................... 9

ar i ee 20

TasLe or AurnHorities CITED:

Cases:

Baer v. Rosenblatt, 106 N. H. 26, 203 A. 2d 773 (1964) .. 4,6

Barr v. Matteo, 360 U. S. 564 (1959) 13

IS a ee ee

PAGE

Bearch v. Bass, 88 Me. 521, 34 Atl. 411 (1896) ........... 18

Blanchard v. Claremont Eagle, Inc., 95 N. H. 375, 63

A. 2d 791 (1949) .. 18

Bridges v. California, 314 U. S. 252 (1941) .....0200.. 16, 17

Cabrey v. Cameron, 55 D. & C. 127 (Pa., 1945) -........... 18

Clark v. McBaine, 299 Mo, 77, 252 S. W. 428 (1923) ... 1

Cohen v. Cowles Publishing Company, 45 Wash. 2d 262,

273 P. 2d 893 (1954) 18

Coleman v. McLennan, 78 Kan. 711, 98 Pac. 281 (1908)

16, 18

Craig v. Harney, 331 U. S. 367, 375 (1947) -....0.0....... 17

Curtis Publishing Co. v. Butts, —— F. 2d —— (5th

Cir., Gocided Duly 16, 19GB) nen eeccccocescoceocecerescsessseeeed 8, 11

DeJonge v. Oregon, 299 U. S. 353 (1937) -....0000022...... 12,17

Fay v. Noia, 372 U. 8S. 391 (1963) 8

Flanagan v. Nicholson Publishing Company, 137 le.

588, 68 So. 964 (1915) 18

Garrison v. Louisiana, 379 U. 8S. 64 (1964) ............ 8, 9, 16

Gattis v. Kilgo, 128 N. C. 402, 38 S. E. 931 (1901) ........ 18

Griffin v. Opinion Publishing Company, 114 Mont. 502,

a aasatseisetemetcansinsbeisiitinesrees 18

Grosjean v. American Press Co., Inc., 297 U. S. 233

(1936) 14, 17

Hamm v. City of Rock Hill, 379 U. S. 306 (1964) ............ 8

Henry v. Collins, 380 U. 8S. 356 (1965) ll

Henry v. Pearson, 380 U. S. 356 (1965) 9, 11

PAGE

Hoeppner v. Dunkirk Printing Company, 254 N. Y.

95, 172 N. E. 139 (1930) 18

Hormel v. Helvering, 312 U. S. 552 (1941) 00. 8

Johnson v. Zerbst, 304 U. S. 458 (1938) 2... cece. 8

Kennedy v. Item Company, 197 La. 1050, 3 So. 2d 175

(1941) 18

Klos v. Zahorik, 113 Towa 161, 84 N. W. 1046 (1901) .... 18

Krebiozen Research Foundation v. Beacon Press, 334

Mass. 86, 134 N. E. 2d 1 (1956) ; |

Linkletter v. Walker, U. 8S. ——, 14 L. ed. 2d 601

SEED scissiedintetensuvsieesoncentsievitnstuiadesaatenisttinitentilananintetinctinaitbinits 8

Moity v. Louisiana, 379 U. S. 201 (1964) 11

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

(1964) “a posesiaiesbinamintaniatal 2, 6, 7, 8, 9, 10, 11,

13, 15, 16, 18, 19

Pauling v. News Syndicate Co., 335 F. 2d 659 (2d

Cir. 1964), cert. den. 379 U. S. 968 (1965) -........... 16

Pennekamp v. Florida, 328 U. S. 331 (1946) 000000000... 17

Schneph v. New York Times Co., 252 N. Y. S. 2d 934

(1964) ll

Siemiankowski v. Pankiewicz, 98 N. Y. S. 2d 277 (1950) 18

Stromberg v. California, 283 U. S. 359 (1931) ............ 12,17

Thomas v. Collins, 323 U. S. 516 (1945) 00. 17

Thornhill v. Alabama, 310 U. S. 88 (1940) _.......... 17, 18, 19

i

—a

iv

PAGE

Uebersee Finanz-Korporation, A.G. v. McGrath, 343

U. S. 205 (1952) .

United States v. Cruikshank, 92 U. S. (2 Otto) 542

(1876) 17

United States v. Schooner Peggy, 5 U. S. (1 Cranch)

103 (1801) 8

Vanderbark v. Owen-Illinois Glass Co., 311 U. S. 538

(1941) 8

Whitney v. California, 274 U. S. 357 (1927) ...000... 12,17

CoNSTITUTION

United States Constitution:

First Amendment 12, 13, 16, 20

MISCELLANEOUS

Berney, Libel and the First Amendment—A New Con-

stitutional Privilege, 51 Va. L. Rev. 1 (1965) -........... 17

Chafee, Free Speech in the United States (1941) ........ 12, 16

Cooley, Constitutional Limitations, 603 16

I Journal of the Continental Congress, 104, 108 (1904) 13

IV Elliot’s Debates on the Federal Constitution, pp. 554,

570, 575 (1876) 19, 20

Kalven, The New York Times Case: A Note on “The

Central Meaning of the First Amendment,” The Su-

preme Court Review 1964, 191 (1964) 17

Letters cj Junius, quoted in Storey, Commentaries on

the Constitution 1884, footnote 3 (2 ed. 1851) ............

PAGE

Meiklejohn, Free Speech and Its Relationship to Self-

Government (1948) —

Newell, Slander and Libel $477 (4th ed. 1924) ................ 19

Noel, Defamation of Public Officers and Candidates,

49 Col. L. Rev. 875 (1949) ee |

Note, Constitutional Law—First Amendment Requires

Qualified Privilege to Punish Defamatory Misstate-

ments About Public Officials, 113 P. L. Rev. 284

CSI) ccererrcenessncesiescnersnanitniensscuapiioneneseinmsmansepnanaesecerasentacerentnn 17-18

Note, Constitutional Law—Freedom of the Press—

Libel—State Law Allowing Libel by Public Official

Without Proof of Malice Held Unconstitutional, 42

Tex. L. Rev. 1080 (1964) ...............-.--..0-.0+---+0-- 17

Odgers, Libel and Slander 158 (6th ed. 1929) ............... 19

Restatement Torts $606 se

The Supreme Court, 1963 Term, 78 Harv. L. Rev. 201

(1964) + a

XV Bergh, The Writings of Thomas Jefferson, 480

(1907)

IN THE

Supreme Court of the United States

Octoser Term, 1965

No. 38

—>>

Aurrep D. Rosensuatt,

Petitioner,

—vs.—

Frank P. Baer,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

NEW HAMPSHIRE

—_

MOTION OF THE AMERICAN CIVIL LIBERTIES

UNION FOR LEAVE TO FILE A BRIEF

AMICUS CURIAE*

The American Civil Liberties Union respectfully moves

for leave to file a brief amicus curiae in the above-entitled

case.

The Union is a forty-five year old private, non-partisan

organization engaged in defending the Bill of Rights, with

special emphasis upon the First Amendment. The ACLU

appeared as amicus curiae in the landmark case of New

* This motion is filed because the Respondent has denied consent.

The letter of denial, and Petitioner’s letter of consent, have been

filed with the Clerk of the Court.

2

York Times v, Sullivan, 376 U. S. 254 (1964), which set

down the constitutional boundaries within which state libel

law must be confined in suits for damages initiated hy

government officers. The position advocated by the Union

was adopted by a majority of the Court.

The case at bar presents one question left open by the

New York Times case, namely, the category of public offi-

cials to which its rule applies. The plaintiff in New Yorn

Times was an elected official of the City of Montgomery,

Alabama; the plaintiff here held a non-elective post as the

manager of a publicly owned ski area. It is the ACLU’s

view that the distinction is constitutionally inconsequential

because the comment claimed to be libelous in both cases

concerned matters of public affairs relevant to the per-

formance of official duties.

We believe that the exposition of the views set forth in

the attached brief will be of substantial assistance to the

Court.

Respecfully submitted,

Osmonp K. FRAENKEL

120 Broadway

New York, N. Y.

Epwarp J. Ennis

165 Broadway

New York, N. Y.

Metvin L. Wutr

156 Fifth Avenue

New York, N. Y.

Attorneys for the American Cwil

Liberties Union, Amicus Curiae

—

IN THE

Supreme Court of the United States

Octoper TERM, 1965

No. 38

oe

Aurrep D. Rosensiartt,

Petitioner,

ee

Frank P. Barr,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

NEW HAMPSHIRE

<p

BRIEF OF AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

Interest of The American Civil Liberties Union

The interest of amicus is set forth in the preceding mo-

tion.

Statement of the Case

This libel action was brought by Frank P. Baer, the

former supervisor of the Belknap Recreation Area at Gil-

ford, New Hampshire, based on a column which appeared

in the Laconia Evening Citizen on January 29, 1960.

4

Since 1950, Baer had been employed by the Belknap

County Commissioners as supervisor of the county-owned

Belknap Recreation Area at an annual salary of $8,000 un.

der a written agreement which required that he

“supervise the collection and disbursement of all funds

coming from or disbursed on account of said recrea-

tional area (par. 5); transmit all funds accruing from

said recreational area to said county commissioners

(par. 6); carefully examine all bills and invoices sub-

mitted relative to said recreational area and either

approve or disapprove the same (par. 7).” Baer vy,

Rosenblatt, 106 N. H. 26, 203 A. 2d 773, 776 (1964).

For some time the operation of the Belknap Recreation

Area had been a matter of public controversy in the area.

Beginning in December, 1958, the petitioner, a local busi-

nessman and contributor of an unpaid column in the La-

conia Evening Citizen entitled “Out of My Head”, wrote

a number of columns emphasizing the squalid and run-

down condition of the area (Def. Ex. 25, December 16, 1958)

and urging that the County Commissioners make needed

capital improvements in order to make the area more at-

tractive for large numbers of winter tourists and skiers and

thus benefit the entire area economically (Def. Ex. 24, De-

cember 11, 1958). In one of his columns, the petitioner em-

phasized that “This please is NOT criticism of Fritzie as

manager. Think that man one of greatest ‘promoters’ ever

knew, but poor guy’s hands hogtied by complete lack of

capital for making real improvements” (Def. Ex. 25, De-

cember 16, 1958). This controversy finally resulted in legis-

lation transferring control of the area from the County

Commissioners to a newly established five-man commis-

sion. N. H. Laws (1959), ch. 399, approved June 15, 1959.

9]

Shortly after the adoption of the legislation, Baer’s con-

tract as supervisor of the area was terminated effective

July 10, 1959. In September of 1959, the new commission

assumed control of the area. Dana S. Beane, Jr., was

elected as first Chairman and a new manager, Warren

Warner, was employed to succeed the respondent as super-

visor of the area.

On January 29, 1960, the petitioner wrote the following

column relative to the operations of the area since being

placed under the control of the new commission:

“Been doing a little listening and checking at Belknap

Recreational Area and am thunderstruck by what am

learning.

“This year, a year without snow till very late, a

year with actually few very major changes in proce-

dure; the difference in cash income simply fantastic,

almost unbelievable.

“On any sort of comparative basis, the Area this

year is doing literally hundreds of per cent better than

last year.

“When consider that last year was excellent snow

year, that season started because of more snow,

months earlier last year, one can only ponder follow-

ing questions:

What happened to all the money last year? and every

other year? What magic has Dana Beane and rest of

commission, and Mr. Warner wrought to make such

tremendous difference in net cash results.” 203 A. 2d

at 776.

On March 9, 1960, respondent brought suit for libel

alleging that, since he had been supervisor of the Area

6

during the previous years referred to in petitioner’s column,

the column could be and was understood to mean

“ ‘that the difference in the net cash results of the in-

come of said Area was due because the plaintiff has

committed larceny and that said money was stolen or

embezzled or converted by the plaintiff to his own use’,

and that ‘said false, scandalous, malicious and defama-

tory libels were calculated to bring plaintiff into

hatred, contempt, ridicule.’ ” 203 A. 2d 773, 776.

At the trial in April of 1963, almost a year prior to the

decision of this Court in New York Times Co. v. Sullivan,

376 U. S. 254 (1964), the petitioner pleaded the truth and

that his criticisms relative to the operation of the Belknap

Mountain Recreation Area by the respondent and the

Belknap County Commission were privileged in the public

interest. On April 17, 1963, the jury returned a verdict of

$31,500 in favor of the respondent, from which an appeal

was taken to the Supreme Court of New Hampshire which

affirmed the judgment of the trial court. Baer v. Rosen-

blatt, 106 N. H. 26, 203 A. 2d 773 (1964).

=e terse til

ARGUMENT

I.

The instructions of the trial court, authorizing the

recovery of damages based on findings that defendant’s

charges were not “based on reasonable grounds” or that

they were published with “ill will, evil motive, intention

to injure, or a wanton or reckless disregard of the rights

of others”, are inconsistent with the decisions of this

Court in New York Times Co. v. Sullivan and Garrison

v. Louisiana.

The trial court instructed the jury that it was entitled

“to find that the public had a right to be informed about

any difficulties or discrepancies in income or thieving at

this public area.” It termed such matters “in the public

domain”, and “public property”, and stated that the peti-

tioner’s charges, even if untrue, would consequently be

conditionally privileged. However, the jury was also in-

structed that the defense of privilege would be inapplicable

unless the petitioner also proved that his charges were

“based on reasonable grounds.” The court further charged

the jury that “It is not enough to show that the defendant

actually believed the source of his information ic be true”;

that “such belief must be founded on reasonable grounds

that would satisfy the ordinary man of average prudence.”

However, this restricted privilege could not protect

the petitioner if the jury found “actual malice”, which the

trial court defined as “ill will, evil motive, intention to in-

jure or a wanton or reckless disregard of the rights of

others.”

8

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964),

this Court held the First Amendment to prohibit a public

official “from recovering damages for a defamatory false.

hood” unless he shows, “with the convincing clarity which

the constitutional standard demands”, that the statement

was made with “ ‘actual malice’-—that is, with knowledge

that it was false or with reckless disregard of whether it

was false or not.” 376 U.S. at 279-80, 285-86.

The Supreme Court of New Hampshire found no conflict

between the instructions of the trial court on malice and

privilege and the constitutional principles which were enun-

ciated for the first time by this Court in New York Times

Co. v. Sullivan, 376 U. S. 254 (1964). However, as this

Court makes emphatically clear in Garrison v. Louisiana,

379 U. S. 64, 79 (1964), the New Hampshire Supreme

Court’s approval of the jury charge here does not follow

1 It is clear that the petitioner is not precluded from raising the

new constitutional principles of the New York Times case by his

failure to raise them in the trial court in April, 1963, almost a year

prior to their enunciation by this Court. As this Court has re-

peatedly emphasized, a waiver of constitutional rights may be found

only where there has been “an intentional relinquishment or aban-

donment of a known right or privelege,” Fay v. Noia, 372 U. S. 391,

439 (1963) and “courts indulge every reasonable presumption

against waiver of fundamental constitutional rights,” Johnson v.

Zerbst, 304 U. S. 458, at 464 (1938). Moreover, this Court has

repeatedly held that when a fundamental change of law occurs

between the trial of a case and the appeal, it is the duty of the ap-

pellate court to apply the law as interpreted by the later decision,

even though not raised in the lower court. See, e.g., United States

v. Schooner Peggy, 5 U. S. (1 Cranch) 103 (1801); Vanderbark

v. Owen-Illinots Glass Co., 311 U. 8. 538 (1941) ; Hormel v. Helver-

ing, 312 U. S. 552 (1941); Uebersee Finanz-Korporation, A.G. v.

McGrath, 343 U.S. 205, 212-13 (1952) ; ef. Hamm v. City of Rock

Hill, 379 U. S. 306 (1964) ; Linkletter v. Walker, U. S. —,

14 L. ed. 24 601 (1965) ; contra, Curtis Publishing Co. v. Butts,

—— F. 2d —— (5th Cir., decided July 16, 1965) holding the

constitutional principles of the Times case to have been waived

by the failure to raise them at the trial.

—

9

the New York Times test. In Garrison, the principles of

the New York Times case were held to require a reversal

of a criminal libel conviction based upon findings, which

were virtually identical to the instructions in the present

ease, that Garrison’s charges were published with “hatred,

ill will or enmity or a wanton desire to injure”, and alter-

natively, that the charges were “not made in a reasonable

belief of their truth.” As this Court noted, “[t]he reason-

able-belief standard is not the same as the reckless dis-

regard of truth standard.” 379 U. S. 79. See also Henry

v. Pearson, 380 U. 8S. 356 (1965).

Unless the respondent, at the time of his employment by

the Belknap County Commissioners, was not a “public offi-

cial” within the meaning of New York Times Co. v. Sullivan

and Garrison v. Louisiana, it is clear that a reversal of

the judgment below is required.

Il.

The constitutional principles of New York Times Co.

v. Sullivan are applicable to charges of mismanagement

against the supervisor of a publicly-owned recreation

area.

Although in New York Times, this Court made no at-

tempt to determine “how far down into the lower ranks of

government employees thie public official designation would

extend for purposes of this rule”,? it is clear that the re-

spondent, as supervisor of the publicly-owned Belknap

Recreation Area, we: a “public official” whose activities

* 376 U. S. at 283, footnote 23.

—$ay

10

while in office were subject to constitutionally protected

scrutiny and criticism under the Times case.

For almost ten years prior to the publication, respon-

deut Baer had been employed by Belknap County under

the direction of the three county commissioners to super-

vise and operate the large Belknap Mountain Recreation

Area outside Gilford, New Hampshire. As supervisor of

the area, Baer was paid an annual salary of $8,000 from

public funds.

In this capacity, Baer was charged with the overall man-

agement and supervision of the extensive recreation facili-

ties, the employment of all personnel and the approval of

all purchases and expenditures for the area. Nor were the

financial operations of the area of minor importance. Dur-

ing the four winter months beginning December, 1958,

when the area was still under respondent’s supervision,

the area had gross recei} ts of more than $125,000.

For more than a year prior to publication of the allegedly

defamatory column, the question of the proper management

and development of the Belknap Recreation Area had been

the subject of an extended and sometimes heated public

controversy in Gilford and Belknap County. In June of

1959 this controversy resulted in the enactment of legis-

lation which removed the Recreation Area from the control

of the three-man county commission and placed it under

the supervision of a newly-created five-man commission.

N. H. Laws 1959, ch. 399, approved June 15, 1959. The

services of the respondent were terminated and the com-

mission employed a new supervisor to replace him.

It was in this context that the petitioner wrote the

column in which he attempted to inform the people of

11

Gilford and Belknap County concerning the operations of

the publicly-owned Belknap Recreation Area. The oper-

ation of the Belknap Recreation Area was public business

and involved large expenditures of public funds. The pub-

lie had every right to be fully informed concerning every

aspect of these operations, both past and present.

The “public official” rule of the New York Times case

is not a rigid abstraction which is to be applied without

regard to the great purposes of free speech in a free

society which are secured by the First Amendment. These

purposes recognize, as did the framers, that public discus-

sion of the affairs of government is both a political right

and duty, which must be preserved inviolate to the end

that government will be responsive to the will of the peo-

*This Court has held the constitutional principles of the New

York Times case to be applicable in libel cases brought by officials

whose positions and responsibilities were of no greater public impor-

tance than those of respondent. Thus, in H enry Vv. Pearson, 380 U.S.

396 (1965), these principles were held to require the reversal of a

libel suit brought against Aaron Henry by a lawyer whose only

public employment was as a part-time county attorney of Coahoma

County, Mississippi, based on Henry’s charges that his arrest for

disturbing the peace was part of a “diabolical plot”. In the com-

panion case, Henry v. Collins, 380 U. S. 356 (1965), a suit brought

by the Chief of Police of Clarksdale, Mississippi, was also reversed.

Similarly, the principles of the Times case were held to require

reversal of a criminal libel conviction based on a publication which

had charged the district attorney of Iberia Parish, Louisiana, with

having knowingly used perjured testimony to obtain a conviction.

Moity v. Louisiana, 379 U. S. 201 (1964). And see the dissenting

opinion of Judge Richard Rives in Curtis Publishing Co. v. Butts,

— F. 2d —— (5th Cir., decided July 16, 1965), finding the

principles of the New York Times case to be applicable to a libel

suit brought by the athletic director of a state university who was

alleged to have fixed a college football game; and Schneph v. New

York Times Co., 252 N. Y. S. 2d 934 (1964), in which a libel suit

brought by the “principal attorney and chief of the Penalties Divi-

sion of the Office of Corporation Counsel of the City of New York”,

was dismissed under the principles of the Times case.

——

ss

12

ple. Whitney v. California, 275 U. S. 357, 275-76 (1927)

(concurring opinion of Mr. Justice Brandeis) ; Stromberg

v. California, 283 U. S. 359 (1931); DeJonge v. Oregon,

299 U. S. 353 (1937). Thus, as Mr. Justice Brennan em.

phasized in the Garrison case:

“The public-official rule protects the paramount public

interest in a free flow of information to the people

concerning public officials, their servants. To this end,

anything which might touch on an official’s fitness for

office is relevant. Few personal attributes are more

germane to fitness for office than dishonesty, mal-

feasance, or improper motivation .. .” 379 U. S. 77.

This paramount public interest in a free flow of informa-

tion extends to comment on all levels of governmental

operations, and includes the right to discuss freely and to

criticise the activities of all employees of government and

persons in public service, whether such persons happen to

be elected or appointed.* Mr. Justice Black has concisely

summarized the meaning of the constitutional privilege:

* Even prior to the First Amendment, the rights of freedom of

speech and of the press were understood as encompassing the right

to criticize men at all levels of government service. As Junius

emphasized in his famous Letters “With regard to strictures upon

the character of men in office, [and] the measures of government

... @ considerable latitude must be allowed in discussion of public

affairs, or the liberty of the press will be of no benefit to society.”

Letters of Junius, quoted in Storey, Commentaries on The Consti-

tution 1884, footnote 3 (2d ed. 1851). “The First Amendment was

written by men to whom Wilkes and Junius were household words.”

Chafee, Free Speech in The United States 21 (1941). The broad

scope of the rights of freedom of speech and of the press was also

emphasized by the Continental Congress in its letter to the inhab-

itants of Quebec (October 26, 1774) discussing the “five great

rights”: “The last right we shall metion, regards the freedom of

the press. The importance of this consists, besides the advancement

_—

13

“The effective functioning of a free government like

ours depends largely on the force of an informed public

opinion. This calls for the widest possible understand-

ing of the quality of government service rendered by

all elected or appointed public officials or employees.

Such an informed understanding depends, of course,

on the freedom people have to applaude or to criticize

the way public employees do their jobs, from the least

to the most important.” Barr v. Matteo, 360 U. S. 564,

577 (1959) (concurring opinion).

Thus, the First Amendment protects the right of the

public to a free flow of information concerning charges of

incompetence, misappropriation of public funds or be-

trayal of public trust by all public employees, from the

highest to the lowest, equally with the more sensational

charges of graft or corruption against prominent officials

in the higher echelons of government.’ In the language of

of truth, science, morality, and arts in general, in its diffusion of

liberal sentiments on the administration of Government, its ready

communication of thoughts between subjects and its consequential

promotion of union among them, whereby oppressive officers are

shamed or intimidated into more honourable and just modes of

conducting affairs.” I Journal of the Continental Congress, 104,

108 (1904).

* While the constitutional principles of the New York Times case

extend to all employees of government at all levels of public service,

the importance and duties of a particular office remain an important

consideration in determining whether a particular matter is ger-

mane to an employee’s fitness for office or constitutes a purely pri-

vate libel “totally unrelated to public affairs.” As this Court said

in Barr v. Matteo, 360 U. S. 564, 573-74 (1959), “It is not the title

of his office, but the duties with which the particular officer . . . is

entrusted . . . which must provide the guide...” Thus, charges

which may be entirely irrelevant as applied to lesser public em-

ployees may become relevant as they relate to persons higher up in

government, or more sensitively placed.

14

Thomas Jefferson, only in this manner can the press fulfil]

its constitutionally assigned function as “the formidable

censor of the public functionaries by arraigning them to the

tribunal of public opinion.” XV Bergh, The Writings of

Thomas Jefferson, 480, 489 (1907). “A free press stands

as one of the great interpreters between the government

and the people. To allow it to be fettered is to fetter our-

selves.” Grosjean v. American Press Co., Inc., 297 U. §.

233, 250 (1936).

No meaningful distinction can be made between the right

of the public to be informed concerning the activities of

elected officials and the activities conducted by those in

government service whom they employ. Few government

programs are administered exclusively by higher officials.

Virtually all governmental activities are administered

through tiers of public employees to whom duties are dele-

gated and subdelegated. No criticism of such programs

ean avoid reflection on the lesser officials as well as those

at the top. Yet the free flow of information will be re-

strained and public debate on these issues inhibited if

lesser employees and officials can bring libel suits based on

such criticisms, even though their superiors may not.

The privilege of criticising the principal will be of little

benefit if his agents can nevertheless sue for libel.

The deficiencies of such a rule are illustrated in the

present case in which the allegedly defamatory column

constituted of no more than a critical comparison of the

operations of the Belknap Recreation Area under its new

management with those in prior years when the Area was

controlled by the three-man County Commission. The

article reflected upon respondent’s reputation only because

—.

15

it questioned the manner in which the Area was operated

during the period in which he was employed by the County

as its supervisor and was responsible for its management.

Its inevitable effect was also to cast an equal reflection upon

the reputations of respondent’s superiors, the three County

Commissioners. It would be paradoxical indeed to hold the

public interest to require the application of the First

Amendment principles of the Times case in suits brought

by the Commissioners, but to withhold constitutional pro-

tection for the same statements in a suit brought by re-

spondent arising out of the same publication.

This case likewise demonstrates the impracticability of

attempting to distinguish between the right of the press to

criticise former officials and the right to criticise those

currently in office. Many of the most notorious government

seandals have been uncovered only after those responsible

were no longer in office. Certainly a public official, by leav-

ing office, does not thereby clothe his conduct while in office

with immunity from public scrutiny nor deprive the press

of the right to comment thereon. And since government

is never static, any meaningful comparison of government

operations, such as that attempted by petitioner here,

necessarily reflects either on the performance of past or

present office holders. Through such comparative appraisals

of government operations, the press makes a genuine con-

tribution to public information concerning government

affairs and is entitled to constitutional protection under

the Times case.*

* Even a standard encompassing the right of the press to comment

without malice only upon the official conduct of persons in govern-

ment service would leave unprotected many areas of vital public

interest. Such a test, rigidly applied, would exclude comments upon

candidates for public office, but as this Court rightly noted in

a7

16

The First Amendment is “much more than an order to

Congress not to cross the boundary which marks the ex-

treme limits of lawful suppression. .. . It is a declaration

of national policy in favor of public discussion of all public

questions.” Chafee, Free Speech in the United States 6

(1941).’ It has long been recognized that, in interpreting

the First Amendment, “the only conclusion supported by

history is that the unqualified prohibitions laid down by the

framers were intended to give liberty of the press, as to

other liberties, the broadest scope that could be counte-

nanced in an orderly society.” Bridges v. California, 314

U.S. 252, 265 (1941).

Garrison, quoting the Supreme Court of Kansas in Coleman v.

McLennan: ,

“ ‘Manifestly a candidate must surrender to public scrutiny and

discussion so much of his private character as affects his fit-

ness for office ...’” 379 U.S. at 77.

And see Pauling v. News Syndicate Co., 335 F. 2d 659, 671 (2d

Cir. 1964), cert. den. 379 U. S. 968 (1965). Similar protection

might also be extended to discussion of the activities of persons

who seek to influence public opinion by putting themselves forward

as participants in public debates and as spokesmen on controversial

issues of grave public concern. (See Associated Press v. Walker,

in which the trial court, while recognizing that “the evidence is

undisputed that General Walker was a public figure at the time

of the riot on the Ole Miss campus,” refused to apply the prin-

ciples of the New York Times case and upheld a verdict of $500,000

general damages. This decision was affirmed by the Texas Court

of Civil Appeals, 2nd Dist., No. 16624, July 30, 1965.)

‘Its purpose is to protect “the free publication of matters of

public concern, [and] to secure [the] right to a free discussion

of public events and public measures. . . . The evils to be pre-

vented were not the censorship of the press merely but any action

by means of which it might prevent such free and general dis-

cussion of public matters as seems absolutely essential to prepare

the people for an intelligent exercise of their rights as citizens.”

Cooley, Constitutional Limitations, 603-604. And see Meiklejohn,

Free Speech and Its Relationship to Self-Government, 37-39, 88-89,

94 (1948).

_

17

Throughout its decisions, this Court has repeatedly em-

phasized that “Great secular causes with small ones are

guarded by [the First Amendment] .. . and the rights of

free speech and a free press are not confined to any field

of human interest.” Thomas v. Collins, 323 U. S. 516, 530-31

(1945). See e.g. United States v. Cruikshank, 92 U.S. (2

Otto) 542 (1876). “The very idea of a government, repub-

lican in form, implies the right . . . to meet peaceably for

consultation in respect to public affairs... ;” Whitney v.

California, 274 U. S. 357, 375-76 (1927) “publie discussion

is a political duty ;” Stromberg v. California, 283 U. S. 359,

269 (1931) “full political discussion ;” Grosjean v. Ameri-

can Press Co., Inc., 297 U. S. 233, 250 (1936) “an untram-

meled press . . . a vital source of public information;”

DeJong v. Oregon, 299 U. 8. 353, 366 (1937) “public issues

of the day;” Thornhill v. Alabama, 310 U. S. 88, 101-102

(1940) “all matters of ‘public concern’ ”, “significant issues

of the times ;” Bridges v. California, 314 U. S. 252, 268-70

(1941) “arena of public discussion,” “pub’ic expression [on

a] problem of public interest ;” Pennekamp v. Florida, 328

U. S. 331, 346 (1946) “Free discussion of the problems of

society is a cardinal principle of Americanism ;” “the whole

gamut of public affairs is the domain for fearless and criti-

cal comment” (concurring opinion of Mr. Justice Frank-

furter) ; Craig v. Harney, 331 U. 8. 367, 375 (1947) “Com-

munity events of legitimate interest .. . conduct in the pub-

lie eye.” *

* Noel, Defamation of Public Officers and Candidates, 49 Col. L.

Rev. 875, 877 (1949) ; Berney, Libel and the First Amendment—

A New Constitutional Privilege, 51 Va. L. Rev. 1 (1965) ; Kalven,

The New York Times Case: A Note on “The Central Meaning of

the First Amendment,” The Supreme Court Review 1964, 191

(1964) ; Note, Constitutional Law—Freedom of the Press—Libel—

State Law Allowing Libel by Public Official Without Proof of

Malice Held Unconstitutional, 42 Tex. L. Rev. 1080 (1964) ; Note,

Constitutional Law—First Amendment Requires Qualified Priv-

18

As this Court said in Thornhill v. Alabama:

“The freedom of speech and of the press guaranteed

by the Constitution embraces at the least the liberty to

diseuss publicly and truthfully all matters of public

concern without previous restraint or fear of subse-

ilege to Punish Defamatory Misstatements About Public Officials,

113 Pa. L. Rev. 284, 285-86 (1964); The Supreme Court, 1963

Term, 78 Harv. L. Rev. 201, 203 (1964). The States, in defining

the scope of their fair comment rules, have not limited this protec-

tion to criticisms of public employees, but have extended the priv-

ilege to all matters of public concern and interest. As the Supreme

Court of Kansas emphasized in Coleman v. McLennan, 78 Kan.

711, 98 Pac. 281 (1908), a case on which this Court relied in

formulating the constitutional principles of the Times case, “This

privilege extends to a great variety of subjects, and includes mat-

ters of public concern, public men and candidates for office.” And

see e.g. Hoeppner v. Dunkirk Printing Company, 254 N. Y. 95,

172 N. E. 139 (1930), criticism of ability of high school football

coach ; Clark v. McBaine, 299 Mo. 77, 252 S. W. 428 (1923), state-

ment of reasons for discharge of a law school professor ; Blanchard

v. Claremont Eagle, Inc., 95 N. H. 375, 63 A. 2d 791 (1949),

criticism of doctor’s refusal to give emergency aid to child; Kre-

biozen Research Foundation v. Beacon Press, 334 Mass. 86, 134

N. E. 2d 1, 6 (1956), article attacking effectiveness of Krebiozen

as a cure for cancer; Bearch v. Bass, 88 Me. 521, 34 Atl. 411 (1896),

criticism of a public building and its builder; Griffin v. Opinion

Publishing Company, 114 Mont. 502, 138 P. 2d 580 (1943), criti-

cism of proposed setilement of litigant’s claim against municipality ;

Cohen v. Cowles Publishing Company, 45 Wash. 2d 262, 273 P. 2d

893 (1954), criticism of poor race by a jockey; Klos v. Zahorik,

113 Iowa 161, 84 N. W. 1046 (1901), condemning solicitation by a

Catholic priest of funds to assist Spaniards; Siemiankowski v.

Pankivwicz, 98 N. Y. S. 2d 277 (1950), criticizing methods of a

school teacher ; Gattis v. Kilgo, 128 N. C. 402, 38 S. E. 931 (1901),

charges of incompetency against the president of a private college;

Flanagan v. Nicholson Publishing Company, 137 La. 588, 68 So.

964 (1915), criticism of local labor leader’s support of application

of rival city for an exposition; Cabrey v. Cameron, 55 D. & C. 127

(Pa., 1945), derogatory comments about the friend of a candidate

for public office ; and Kennedy v. Item Company, 197 La. 1050, 3

So. 2d 175 ( 1941), criticism of candidate for admission to bar be-

cause of link with allegedly corrupt state government. The Restate-

ment has similarly defined the right of fair comment as extending

to all “criticism of so much of another’s activities which are mat-

19

quent punishment. The exigencies of the colonial pe-

riod and the efforts to secure freedom from oppressive

administration developed a broadened conception of

these liberties as adequate to supply the public need

for information and education with respect to the sig-

nificant issues of the times . .. Freedom of discussion,

if it would fulfill its historic function in this nation,

must embrace all issues about which information is

needed or appropriate to enable the members of society

to cope with the exigencies of their period” (310 U. 8.

88, 101-102).

This clearly was Madison’s understanding of the scope

of the protection of the First Amendment. In the famous

Virginia Resolutions of 1798, protesting the Alien and

Sedition. Acts, Madison said that the First Amendment

guaraniees “the right of freely examining public characters

and measures, and of free communication among the people

thereon, which has ever been justly deemed the only effec-

tual guardian of every other right.” IV Elliot’s Debates

on the Federal Constitution, p. 554 (1876). “In every state,”

Madson argued, “... the press has exerted a freedom of

canvassing the merits and measures of public men of every

description ... On this footing the freedom of the press has

stood; on this foundation it yet stands...” IV Elliot’s

Debates, supra at 570 (emphasis supplied). Madison vigor-

ously opposed the Sedition Act because “it is manifestly

impossible to punish the intent to bring those who admin-

ister the government into disrepute or contempt, without

ters of public concern” including “the private conduct or character

of another who is engaged in activities of public concern, insofar

as his private conduct or character affects his public conduct.” Re-

statement Torts §606. And Odgers, Libel and Slander 158 (6th ed.

1929), “matters of public interest and general concern”; Newell,

Slander and Libel §477 (4th ed. 1924), “matters of public interest

and general concern.”

20

striking at the right of freely discussing public characters

and measures...” IV Elliot’s Debates, supra at 575 (em-

phasis supplied).

When the First Amendment is read in its historical con-

text and against “the background of profound national

commitment to the principle that debate on public issues

should be uninhibited, robust and wide-open... ”, it is

apparent that the great constitutional principles of the

New York Times case require at the very least the protec-

tion of the right of the press to comment freely and without

malice on the official conduct of all public officers high or

low. Only in this manner can the fundamental freedoms of

speech and press be assured the “breathing space” which

they need to survive.

cone

CONCLUSION

The judgment of the Supreme Court of New Hamp-

shire should be reversed.

Respectfully submitted,

Osmonp K. F'RaAENKEL

120 Broadway

New York, N. Y.

Epwarp J. Ennis

165 Broadway

New York, N. Y.

Metvin L. Wutr

156 Fifth Avenue

New York, N. Y.

Attorneys for the American Civil

Liberties Union, Amicus Curiae

August, 1965