Appendix — Curtis Publishing Co. v. Butts

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APPENDIX B.

| IX THR

UNITED STATES COURT OF APPEALS

For rae Frere Crecurr.

0 sadbch 21491.

_ CURTIS PUBLISHIN G COMPANY,

| Appellant-Appellee,

versus

“WALLACS BUTTS:

Appellee- Appellant.

(Ap REVERSE Trriz)

Arras, Prox rix Usrri Stare Dumwor Oovar ron ran 4

| Norrzzey District or @zoncr. )

(Jaly 16, 1 16, 1965.)

Before Rives and Brown, Circuit — and d Srzans Dis-

trict Judge. -

_’ . Sprans, District Judge: This: is a libel eat. Cartis

Publishing Company’ published an article in the March

23, 1963 issue of the Saturday Evening Post ? entitled ‘‘The

Story of a College Football Fix’’, characterized by the Post

1. Hereiaal® sqfered to on citer “Cet . “defendant” or °

_ the “Post”, fr. .

2. Also referred to herein as the “Post”. |

(5a)

6a | - Appendia B

in the sub-title as ‘‘A Shocking Report of How Wally Butts :

.. . and ‘Bear’ Bryant Rigged a Game Last Fall.’’

Daw

On March 25, 1963, Wally Butts, former Athletic Di-

rector of the University of Georgia, instituted this action

against Curtis. In August, 1963, the case was heard be-

fore a jury, which returned a verdict against Curtis for

$60,000 general and $3,000,000 punitive damages. Con- |

ditioned upon the failure of Butts to remit that portion .

of the award for punitive damages in excess of $400,000,

the trial court granted Curtis’ motion for new trial. At

the same time, Curtis’ motion for judgment notwithstand-.

- ing the verdict was denied. On January 22, 1964, after .

Butts had filed a remittitur, Curtis’ motion for new trial

was denied, and judgment for Butts in the amount of

$460,000 was entered. Thereafter, Curtis filed motions for

new trial under Rule 60(b), F. R. Civ. P., which were denied —

on April 7, 1964. This appeal is taken from the judgment

of January 22, 1964, and from the trial court’s denial of

Curtis’ motions for judgment ae emma the verdict .

and for new trial. We affirm.

Curtis publishes various magazines including the Post.

Prior to the publication of the story in question, the editor-

in-chief, undoubtedly hoping to attract more readers, had

decided to ‘‘change the image”’ of the magazine by making |

it an: ‘‘expose’’ type, and embarking upon a policy of

‘sophisticated muckraking’’, in order ‘‘to. provoke people’”:

and ‘‘make them mad’’.*

The article ° involved was based upon a claim by one

George Burnett that on September 13, 1962 he had acci- .

3. Sometimes hereinafter referred to as “Butts” or “plaintiff”.

+ See note 25, infra. ¢

5. The following editorial comment was, inserted at the begin-

ning of the story:

“Not since the Chicago White Sox threw the 1919 World Series

fae ee bows 0. pare stiry oa Sa as this one. This is the

ae odant of college fepthall

i" PR SRR OPE TNTL MS HEN ME = Saeed RT We Re

SOUR 2

Appendic Bo s—(“tsi*S

dentally overheard, and made notes of, a long-distance

telephone conversation between Butts and “Bear”? Bryant,

football coach at the University of Alabama, in which

Butts divulged certain information about football plays.

the University of Georgia would use in its opening game

' against Alabama. Georgia was subsequently defeated 35-0.

_ About four months after the alleged telephone conver-

' . sation Burnett contacted various people, including Georgia

football coach Johnny Griffith, and then decided to tell his

story to the Post. A writer, Frank Graham, Jr., was as-

signed by the Post to investigate and write the story, and

an Atlanta sports editor was retained to advise him.

Graham never saw ‘Burnett’s notes, as they were at the

time in the possession of Georgia school officials; he did

not. interview a witness known by him to have allegedly

discussed the notes with Burnett on the same day the tele-

phone conversation purportedly took place ; he never viewed

the game films; and neither he nor anyone else on behalf

of the Post ever contacted Butts or Bryant. He “agreed

62 "

“Before the University: of Georgia yed the University of

Alabama last September 2, Wally on athletic director of ©

- , _ Georgia, gave Paul (Bear) Bryant, head coach of Alabama,

_. Georgia’s plays, defensive patterns, all the significant secrets -

Georgia’s football team possessed.

“The corrupt here were not professional ballplayers gone wrong,

as in the 1919 Black Sox scandal. The corrupt were not dis- .

reputable gamblers, as in the scandals continually afflicting college

basketball. The corrupt were two men—Butts and Bryant—

‘ employed to educate and to guide young men. *

“How prevalent is the fixing of college football games? How

1 often do teachers sell out their pupils? We don’t know—yet.

For now we éan only be appalled—_THE EDITORS.” — * As

In the story itself it is stated, among other things, that §(t)he Georgia .

players, their moves analyzed and. forecast ‘like those of rats in a

maze, took a frightful physical beating”. Georgia coach Johnny

Griffith was quoted as saying bitterly to a frien » “I never had a

chance.” The next sentence read: “When a fixer works against you;

that’s the way he likes it.”

7 ON tes

fa. a anes B

| that both he and ‘Curtis a publication of the article

‘*would ruin Coach Bubgs’ career’’.

-On March 11, 1963, eleven days before the inti was

_ published, Curtis was informed by telegram and letter, both -

sent by Butts* counsel, of Ahe_‘‘absolute falsity of the

charges’? contained in the proposed story. The record does

not disclose that any. additional investigation was initiated,

and the telegram and letter went unanswered. \ In addi-

tion, a long-distance telephone appeal that the article not

_ be published, made by Butts’ daughter prior to publication,

was rejected. After the article was published, Curtis re-.

fused a demand that it publish 4 retraction.

The Post took the position from ti: beginning that the.

' statements made in the article coneerning Butts were true,

and that because of their nature it had exercised great _

care by thoroughly checking every significant source of

information as to their a and rota ‘in ad-

vance of publication.

Curtis chose not to use as a witesiis either the author of

the article or any of its editors who had made contribu-

tions to the article after it had been submitted.. Nor did ~’

it use the Atlanta sports editor who had assisted in the

preparation of the story. As one of its principal witnesses

it.called upon George Burnett, who was known by Curtis

to have been convicted of writing bad checks and to be

- on probation at the time he claimed to have listened in on

the conversation. -

Both Butts and Bryant testified. - Each emphhtically

denied the charges contained in the article and stated that

there was never any conversation between them having .

as its purpose the fixing or rigging of any football game.

Several football players, past and present, expressed their

opinions to the effect that the outcome of ‘a football game

| . cannot be rigged « or fixed without ee by the

Appendiz B 9a

. players themselves, and that there is no way in which two

coaches can rig or fix the outcome of a footbgll game with-

. out ‘the players’ knowledge. Other ‘‘experts’’ stated their

opinion that the information cgntained in the ‘so-called’?

- Burnett notes would not be of any assistance at all to the

_ University of Alabama in preparing for its game -with’ the

University of Georgia. In several instances Butts’ wit-

nesses denied direct ance attributed to them in -

article.

In an opinion written by the district judge the facts a: are,”

stated in some detail,* and no useful purpose could be

served by repeating them. here, although portions thereof

pértinent to specific issues later discussed may be utilized..

It is significant, however, at this poirit, to say that in yiew

of the. verdict it.rendered, the’ jury undoubtedly accepted

utts’ version that the’Story was ‘‘willfulty, maliciously

and falsely?’ published, as a result of which’ he has suf-

. fered substantial injury to his **peace, happiness and feel-

ings’’, as well as to his ‘‘honor, reputation and integrity’’.

As the trial-judge saw it: ‘‘The article was clearly defama-

tory and extremely so. . . . The guilt of the defendant —

was so clearly established by the evidence in the case so

as to have léft the jury no choice but to find the defendant

liable.’ We wholeheartedly agree with that appraisal,

Curtis submits twenty-eight specifications of error

which are argued in its brief under ten. ‘propositions. ‘The

issues involved are: (1) Was the article libelous per se?

(2) Does the court’s judgment violate Curtis’ rights under |

the First, Fifth and Fourteenth Amendments? (3) Did the.

a Cm v. Curtis Publishing Co, (N. D. Ga. 1964), 225 F.

ned Id. at 919. eee

10a | : Ms Appendic B-

; eiiiaiavits of Butts’ ' counsel, ‘not chisel to at the trial,

» require a new trial? (4) Did the court-err in excluding

certain testimony offered to impeach the credibility of Butts _

and the witness John Carmichael? (5) Were the extra-

judicialsstatements of George ‘Burnett, and the statements — |

made to him by-third person, properly excluded? (6) Did

the trial court: commit plain error in instructing the jury?

(A Did the trial court err in refusing to charge the jury

_ that it should construe Butts’ testimony ‘‘most strongly

against him’’? (8) Did the trial court: err in refusing to

charge the jury that it should disregard the entire tes-

timony of any witness whém it found to have knowingly

and wilfully testified falsely? (9) Does the ‘‘newly dis-

covered evidence’’ offered in Curtis’ motion under Rule.

60(b), F. R. Civ. P. require a new trial? (10) Is the award

of punitive damages so excessive that it cannot be cured by

the remittitur? 3

THE ARTICLE as LIBELOUS PER Sz.

The trial judge charged the jury that the article was

libelous per se. This was objected ‘to by Curtis on the ~

ground that Butts was not actively engaged in.the pro-

fession of a football coach at the time of publication, and,

that no special damage was shown.® “Curtis took the same

position in its motions for directed: verdict and for judg-

ment notwithstanding the verdict. ~

Curtis’ contention in this regard cannot. be sustained. -

This is a libel suit as distinguished from a slander suit.

8. In support of this proposition, Curtis cites—Weatherbolt v.

age 143 Ga. 41, 84 S. E. 119 (1915) ; Van Ep ones, 50°

Ga, 238 (1873); Mell v. Edge, 68 Ga. App. 314, 22 S. E- 2d 738

(ose Ha rd v. Shaw, 100 Ga. App. 813, 112 S. E. 2d 286°

1959) ; and Estes v. Sterchi Bros. Stores, 50 Ga. App. 619, 179

S.E. 222 (1938). These cases, however; appear to be “delinquent

debtor cages” referred to in note.11, infra.

9. Ga. Code Afin. § 105-701. (libel) , § 105-702 (slander).

RE AeA RT CRD nn NR bo Me SONI TI 9 wrote —

‘ee. ° mem. ; atari

Appendia B . lla

Under Georgig?law, a plaintiff may recover in a libel action

where the defamation is apparent from the writing itself,

_ . without the necessity of alleging or proving special dam-

a oa - ages,’ and it is not necessary that he be engaged in the.

rsuitof his trade, business or profession at the time of

publication’* ~—- - ‘= wae eae

. 10. Floyd v. Atlanta, Newspapers, Inc., 102 Ga. App. 840; 117

S. E. 2d 906 (1960), the leading case-in Georgia, states that words

which, if merely spoken, would not be actionable in absence of special

° damagé, may be libelous when printed if false and.tend to injure

| reputation and bring one into public hatred, contempt or*Tidicule.

hs a only general damages need be alleged in an action for

= <= ae gms mee

‘

__ 11. Ga. Code Ann. § 105-701, defines libel as the “false and

malicious defamation of another, expressed in pririt . . : tending fo

injure the reputation of an individual and exposing him to public.

hatred,-contempt, or ridicule . . .”, without the requirement that

the charges be calculated to injure one in his trade, o or profes-

_ sion. A newspaper libel is described in Ga. Code Ann. § 105-703, as

“ * being “any false and malicious -defarhation of another jn any-news- -

paper, magazine or periodical tending to injure the reputation of any |

individual and expose him to public hatred, contempt, or ridicule”, .

again withgut the requirement that the charges refer to one’s trade,

office or profession. “Only in the area of slander is a reference to one’s

trade, office or profession required. -Ga. Code Ann., § 105-702.

_ The case of Floyd v. Atlanta Newspapers, Inc., supra, note 10,

oe: ' in its definitive statement of the Georgia law of libél explains that

A written words are sufficient to constitute libel per se if they tend to .

, - bring a man into public hatred, contempt or ridicule. Damages will

-be presumed from the nature of the words themselves and their harm-

' ful effect and no proof of special damages is necessary. Where the

only _ construction is that the words are libelous per se, upon

proof thereof; the only oe question for the jury is that of dam-

agés. See also Restatement of the Law Setofid, Torts, Tentative

Draft No. 11, April 15, 1965, Section 569, wherein Georgia is named

as one of the majority of states following this rule, and, as explained

: in the notes to Restatement of the Law of Torts, 1938, Vol. III, Sec.

. 569, Comment e, pp. 168-9, it may be libelous to impute misconduct.in

one’s trade, etc., although he is at the time no Jonger engaged in’the ~

pursuit of the trade, business or professior1. :

Curtis cites many cases in support of its position (see note 8,

- supra. However, these are part of a group of cases known in Georgia *

ae as the “delinquent debtor cases”, and, as explained by the Floyd case,

me stand in a class by themselves, and have no bearing on causes of action

_ other than those involving charges that one owes a debt: aw * refuses

125. | Appendia Bo ¢

- But even if the law necessitated a showing that Butts

- WAS actively ‘engaged in the profession of a football coach.

at the time o gyblication, \ we think ‘this reqhirement has

been satisfied.

The story wes purchased by Curtis on Webrenicy 22; -

1963. Bufts resigned as Athletic Director effective Febru-

ary 28, 1963. The\article was published in the March 23, ~.

1963 issue of the Post. Thus it may be assumed that Butts

“~ was at least temporarily out. of work on the day of pub-

lication, but’ it hardly follows that he had comaeeteny

abandoned the coaching business.

_ “Ketnally, Curtis admitted in its answer that Butts “has”

enjoyed a national reputation as a successful : and respetted

member of the coaching profession”’, and. that he “has been ~

, approached and<cffceett employment as head football coach

by several colleges and professional football teams in the

country due'entirely to his reputation as a successful mem- -

ber and leader in his profession.’’ This admission, in and

of itself, would iadicate a recognition that Butts was still

identified with some phase of €ootball activities.

Upon Curtis’ insistence, #ts second defense asserting |

that the statements contained in the article were true, was

held to be a valid.plea of justification. - By interposing this

plea, Curtis admitted a prima facie case,” but gained the

valuable right to open and close. The complaint alleged »

that ‘‘plaintiff’s career as a member of the football coach-

ing profession had been ruined and destroyed by this scur-

rilous and contemptible defamation.’? (Emphasis sup-

.to pay, or owes a debt long past due. In this isolated situation the

‘charge i is, as a matter of law, uniformly held in Georgia, not libelous

per se, and it-is in these cases that Curtis finds language to the efféet

that falsely spoken or written words that do not contain a charge made ~

in reference to one’s trade, office or profession are not actionable with- —

out proof of special damages.

12. See Ga> Code Ann. § 105-708 and § 105-1801; Baldwin v.

Davis, 188 Ga. 587, 590, 4 S. E. 2d 458 (1939). .

Appendia Bo 188

plied.) Without regard to any question as to whether the

plea constitutes an admission that the remarks were made

with malice, it is our view that it necessarily carries with

it an admission, not only that the libelous statements were

_made by Curtis, but also ‘that they were made in relation

to Butts ‘‘as,a member of the football coaching profes-

‘sion’. Under all the circumstances, it is untenable to say

that simply because Butts was temporarily out of a job at

the time of publication, he was not actively engaged in the

coaching business as a means of livelihood.”

We hold that the trial court correctly charged the j jury

that the article was/libelous per se, and that he did not err

"im denying Curtis’ motions for a directed verdict and for

— notwithstanding the verdict.

Curtis’ Comaturonesial, Ricuts.

Curtis contends that the trial court’s judgment violates

and abridges its rights of freedom of speech and of the ~

press guaranteed by the First, Fifth and Fourteenth

» Amendments to the Constitution of the United States. It

_ relies upon the case of New York.Times Company v. Sul-

livan, 376 U. 8. 254, 84 Sup. Ct. 710, 11 L. Ed. 2d 686 (1964),

decided. sybsequent to the trial of this case, in which it was

| : “held that in order for a public official in a- libel’ suit to re-

cover any damages he must prove that a statement against

his official conduct was published ‘‘with actual malice—

that is knowledge that it was false or with reckless disre-

gard of whether it was falge or not’’. 376 U.S. at 279-80.

13. In the Missouri case of Clark v. McBaine, 299 Mo. 77, 252

S. W. 428 (1923), at 432,.cited by Curtis, the Court stated that

though’the plaintiff “had been removed as a member of the faculty,

his profession, or means of a livelihood, was still that of a

professor of law, and a writer of textbooks upon the law, and the

gist of his damages . . . consisted of injury-done to his standing as

a professor and writer of law.” - ‘

” 5 - ee oe ONT 6 OR ee pes

Ha . . Appendiz B

‘This holding, says Curtis, “ drastically changed the consti- ¢

tutional principles applicable to libel actions’’, by announc-

ing new safeguards which ‘‘make it manifestly clear not

only that the rules of law which were applied in the trial of

the instant case were unconstitutional, but also that the,

result reached by the jury is a patently unconstitutional

"result which cannot be permitted to stand.” i

Countering this, Butts says that the invocation of the -

constitutional defenses in libel cases has received emphatic

and substantial attention by scholars and Courts over the

years; that the Times case resulted in no fundamental :

change of law, but merely gave new sanctions to a long

_ standing rule; and that in any event, Curtis did not invoke

those defenses even though they are more broadly stated

in the Georgia law than ‘in the Times case.'* Moreover,

Butts emphasizes that the Times’ constitutional grounds

_now asserted were not timely raised or preserved below. |

In fact, they were presented for the first time in the F. R.

Civ. P. 60(b) motion filed on March 23, 1964, long after

, trial. ; - e ys : ; “.

14. In support of his position, Butts cites: “Justice Black and

First Amendment ‘Absolutes’; A Public Interview,” 37 N. Y. U. L.

Rev. 349 (1962) ; C. L. Black, Jr., “Mr. Justice Black, the Supreme

Court, and the Bill of Rights,” Harpers, February, 1961, .p. 63; .

Caldwell v. Crowell-Collier Pub..Co., (Sth Cir. 1947), 161 F. 2d 333;

Sweeney v. Schenectady Union Pub. Co., (2d Cir. 1941), 122 F. 2d

288, aff’d 316 U. S..642. (1942) ; Henry v. Collins, 158 So. 2d 28

, (Miss. 1963) ; Louisiana v. Garrison, 244 La. 787, 154 So. 2d 400

(1963) ; Louisiana v. Moity, 245 La. 546, 159 So. 2d 149 (1963) ; and

other pre-Times defamation cases. He points out that the Supreme

Court in Times recognizes that “a like rule” has existed for a number

of years in some state courts; that the Kansas Supreme Court, .in

_- Kennedy v. Mid-Continent Telecasting, Inc.,.193 Kans. 544,. 394

P: 2d 400 (Kan. 1964), noted that the Times decision requires no

change in the law; that the trial court said (note 23, infra) that

Georgia. provides this “like rule” -by a statute granting a qualified

privilege for “comments upon the gcts of public men in. their public

~ ry and with reference thereto”, citing Ga. Code Ann. § 105-

19(6) ; and that a can be lost by proof‘of actual malice, citing .'

Ga. Code Ann. § 105-710. — . )

| » Appendia B : 15a

The record feflects that Curtis did not object to the

trial court’s instructions.’* The Times case was decided by

the Alabama Supreme Court on August 30, 1962. A peti-

tion for writ of certiorari presenting constitutional ques-

tions identical to those now being urged by Curtis, was filed —

in the United States Supreme Court on November 21, 1962,

four months prior to the filing of the complaint in. this

case on March 25, 1963.°° Certiorari was granted in the

Times case on January 7, 1963. The jury verdict in the

instant case was returned on August 20, 1963, and the trial

court’s judgment thereon was entered the same day. A

Birmingham, Alabama law firm, which represented the New

York Times’ in the case brought against it by Sullivan, ~

also, together with Curtis? General Counsel, represented

‘Curtis in a libel suit Coach Bryant had filed against it in

the United States District Court at Birmingham, Alabama.

A member of this law firm had sent information to Curtis

about’ the alleged telephone-conversation between Butts

and Bryant, and had talked with the author, Graham, about

the.matter prior to publication of the story. The same

lawyer, together with another member of ‘the firm, sat (as

did the General Counsel for Curtis) at Curtis’ Counsel

table throughout the trial of this case." oh

15. See Rule 51, F. R. Civ. P. Also see note 36, infra.

16. We have examined the petition for writ of certiorari pre-—~—

+ senting the constitutional questions, and find that it was filed by the

New York Times Company on November 21, 1962. The brief for

respondent in opposition was filed on December 15, 1962, and peti-

tioner’s reply thereto was filed on December 29, 1962: - ¥:

17. The Birmingham law firm of Beddow, Embry and Beddow,

which represented the New York Times in the Supreme Court of /.

Alabama, is also shown to be counsel for the Times.in the Supreme '

-. Court of ‘the United States. Mr. Roderick Beddow of that firm

SE ee, Seer ts Site anes

represented Curtis in the case of Paul Bryant v. Curtis Publishing

Company, in the United States District Court in Birmingham, and

_ both he and Mr. T. Eric Embry ‘of that firm sat, along with the: .

General Counsel of Curtis,‘Mr. Philip H. Strubing, at the Curtis

counsel table throughout the trial of ,this-case. Butts’ brief states, .

- - * : - - scream egg w . cement’ - resrene

. 16a | Appendiz B

| While it is true that the Supreme Court did not decide

the Times case until March 9, 1964, it would be contrary

to reason and common sense to assume that there had not

-. been, at all times during the pendency of this case, full

communication among Curtis’ co coungel, particularly - con-

‘: eerning trial strategy.. The facts more than justify our :

conclusion that Curtis was fully aware when this suit was

instituted, and certainly no later than the beginning of

trial, that the constitutional questions it now argues had ~

been: for some time, and were still being, vigorously as-

~ gerted in Times.

The Supreme Court said, in Michel v. Louisiana, 350°

U. S. 91, 99, 100 L. ed. 83, 76 S. Ct. 158 (1955), that ‘‘(t)he

test (in making a claim to a constitutional right) is whether

‘the deféndant has had ‘a reasonable opportunity to have

the issue as to the claimed right heard and determined by

the .-. . court.’’’ It then cited the case of Yakus v.

United. States, 321 U. S. 414, 444, 88 L. ed. 834, 64 S. Ct. 660

(1944), for the proposition that ‘‘(n)o procedural principle

is more familiar to this court than that a constitutional

- right may be forfeited, . . . by the failure to make timely -

-- assertion of the right.’’"*

" without contradiction, that Mr. Beddow “initially ‘sent them (Curtis)

this information’ about the alleged telephone convérsation and was & ~

principal in the initial work of the author Frank Graham.”

18. of Vite oh fa res tye S. 91, 76 S. Ct. 158, 100

and that since the petitioners had not, under that statute, made

they waived any such right to so c the Grand Jury. The court

announced that the test was whether defendant had had-a rea-

ity to have the issue as to the claimed right hsard

. and determined by the court.

Cerny ss yoo! Reece v. State of Georgia, 350

time as the Michel case, the state court had refused to consider the

, 76 S, Ct. 167, 100 L. ed. 77 (1955); decided at the same

« ° Appendia B >” 1a:

It cannot be said that this case falls within the category

of those cases cited by Curtis ® which hold that if subse-

quent to a trial or hearing, but before a final decision by the

trial or appellate court, the fundamental law is ®hanged,

it is the duty of the court to apply the law as amended.

Those were ‘‘exceptional eases’’, where there was nc

‘waiver and thé*court was satisfied that to do otherwis

would result in a ‘plain miscarriage of justice’’. In ts

case; however, even if it is assumed that the basic lawhhas

defendant’s motiori to quash the indictment filed before his aign-

ment.on the ground of the composition of. the Grand Juryf because,

by Georgia practice, objections to’the Grand Jury must bé made be-

fore the indictment is returned. The court held that thre had been

no waiver there, and that due process had been vigfated, because

defendant, a semi-illiterate Negro, had no counsel upfil. the day after

his indictment, pointing out that “the right to object ‘presupposes an

opportunity to exercise that right.” __ PP

In Kewanee Oil and Gas Co. v. Mosshamer, ¢40th Cir. 1932),

58 F. 2d 711, where the constitutionality of a state statute was raised

on appeal, the court stated that “if the constitutionality of a statute

mde raised in the pleadings ordinarily it may not be raised at the

Other cases decided by district courts, and holding that constitu-

tional questions ordinarily must be raised at the trial, are: Alexander

v. Daugherty (D. C. Wyo. 1960), 189 F. Supp. 956 (only where

failure to raise the constitutional question at. the trial was due to

. ignorance, duress or other reason for which petitioner could not be

held responsible, may redress be had, and then if “it is made to appear ~*

that there. had been such gross violatjén of constitutional right as to -

deny the defendant the substance of/a fair trial”) ; Houck v. East-

‘chester P. U. District (D.C. Alaska 1952), 104 F. 2° 588; Mount

'Tivy Winery v. Lewis (N. D. Cal. 1942), 42 F. Supp. 636; and

. White Cleaners and Dyers v. Hughes (W. D. La. 1934), 7 F. Supp.

1017.

i9.. Ziffrin, Inc: v. United States, 318 U.S. 73, 87 L. ed. 621,

63 S: Ct. 465 (1943); United States .v. Schooner Peggy, 5 U.S. (1

Cranch) 103, 2 L. ed. 49 Ui?) ; and Hormel v. Helvering, 312

U. S. 552, 85 L. ed. 1037, 61 S. Ct. 719 (1941), an unusual case in

which the Supreme Court\sllowed the Tax Commissioner to assert -

for the first time on appeal in the Court of Appeals the taxability

of income under angther section of the code, but stated thet “ordinarily

an appellate court does not give consideration to issue not raised

below ... . (but) there may be exceptional cases wh... injustice

may otherwise result except where express waiver is given.”

oS ‘ . * .

18a ' Appendix B os

been changed, the situation is quite-different. For what-

ever tactical or other reason™ Curtis sat back and failed

to carry the constitutional torch before verdict and judg-

ment, the fact remains that it was charged with knowledge,

through its interlocking battery of able and distinguished

attorneys, of the issues involved in the Times case, and

was afforded eyery reasonable opportunity to have those

same issues heard and determined by the trial court in

_ the case at bar. “What the Supreme-Court would, or might,

hold in Times was not decisive. What was important was

that Curtis had to invoke any constitutional claims in an

appropriate way, and at an appropriate time. Consider-

ing the resources of Curtis, both practical and legal, and —

the contemporary awareness of constitutional rights per-

vading even problems of local jurisprudence Curtis’ com-

plete and utter silence amounted to ‘‘an intentional re-

linquishment or abandonment of a. known right or

privilege.’’ 21 . |

_ . Without expressing any opinion as to whether Times

fundamentally changed the substantive law applicable to

libel cases, or whether the charge on malice given -by. the

trial court was adequate under Times,” or whether Butts

20. Butts thinks it can be inferred that “defendant never con-

_ sidered plaintiff to be in any class of ‘public men’ so as to: make the

defense available.” ake g ahi

: ‘21. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. ed.

461 (1938). ~ es

22. The trial court’s charge on malice was, in part, as follows:

‘. “At this point, I think it is well that I should explain to you the - -

meaning of malice under the law of defamation. Malice, in the law of

defamation, may be used in two senses. First, in a special or technical

sense to denote absence of lawful excuse or to indicate absence of

privileged occasion. Such malice is known as implied malice or malice

in law. There is no imputation of ill will to injure with implied

* malice. . Secondly, malice involving intent of mind and heart or ill will

against a person is classified as expfess malice or malice im fact. . .

“Where it is established that the defendant was inspired by actual

malice in the publication of the defamatory matter, the jury, in its

. defen

Appendia Bo» «4p

was the kind of ‘public official’? contemplated by Times,”

or whether ’a reversal might otherwise be required if the

discretion, may, but: is not required, to award punitive damages. As

previously stated to you,sactual malice encompasses the notion of ill

‘will, spite, hatred, and an intent to injure one. Malice also denotes a

wanto: or reckless indifference or cu pable negligence with regard to

the — of others. The purpose of-punitive damages is to deter the

nt from a repetition of the offense and is a.warning to others

not to commit a like offense. It is interftled to protect the community

and‘ hasan expression of ethical indignation, although the plaintiff

receives the award. .The plaintiff charges. that the column was written

_ and published -both with actual ‘malice and in utter and wanton dis-

regard of his rights . . . .” :

* 23. Ina second opinion dated April 7, 1964 (See Butts v. Curtis

Publishing Company (N. D. Ga. 1964) ces Be OMDB. 50005 Ot cee),

denying Curtis’ motions under Rule 60(b), the trial judge gave the

following as his views concerning Butts’ status as a “public official” :

“In. the present motion at hand, the defendant contends that’

plaintiff's action comes under the Times ruling in that plaintiff was a

public official, and that the verdict and judgment was awarded plaintiff

as damages for injury to his tation as a football coach on account -

of a publication made by. the defendant concerning plaintiff’s actions

while acting as ‘Director of Athletics:at the University of Georgia. In

'.the trial of the case, movant defended the action by entering a plea .

_ Of justification, and no defense was made or evidence introduced con-

cerning Butts’ position. as Athletic Direétor or as a public official.

Georgia law providés under cértain conditions communications con-

cerning the acts of public men in their public capacity and reference

therewith to be deemed privileged. ae Code Annotated, Section’

105-107(6). Just where in the ranks o government employees the

‘public official’ designation extends, the — Court in the Times

case did not determine. The decision did determine that Sullivan, as

an elected city commissioner of Montgomery, fitted into the category —

of public officials. aaa :

“Under Georgia law, members. of the Board of Regents. of the

University System-are public officials. Georgia Sessions Laws,- 1931,

Pages 7, 45. _ The @vidence presented at the trial shows that plaintiff

was Director of Athletics at the University for some two years prior

* to February, 1963, at which time he resigned. - The article complained

of was published in the defendant’s issue of March 23, 1963. The

Board of Regents at both the University of Georgia (located ‘in

Athens) and the Georgia School of Technology (located in Atlanta)

control the athletic programs of tH@ two institutions, but the details are

handled at each institution by an athletic association composed of

~ faculty members and alumni, and each is incorporated'to facilitate such

business transactions.as improvement of athletic grounds and equip-

20a Appendia Bo| |

constitutional issues had been timely presented, we hold

that Curtis has clearly waived any right it may have had >

ment at the two institutions. The schedule of athletic contests for each ©

year is approved by the faculty and by the Regents. The separate

athletic associations at both institutions are wholly under the control

of the Regents and are their ts. . For further details of the athletic

setup, see Page v. Regents of University System of Georgia; 93-F. 2d

887, 894-892. - As was stated in the Page casg, the ‘coaches’ are also

members of the faculty. . ; '

“Plaintiff Butts was Direétor of Athletics at the University. The |

Athletic Director, along with the various coaches in the Athletic De-

partment, were employed by the separate incorporated athletic associa-'

. tion. However, defendant-seeks by this motion to extend the

category of ‘public officials’ to one employed’as agent by the University

of ia: Athletic Department. Even if plaintiff was a professor or

instructor at the. University, and not an agent of a separate govern-

mental corporation carrying on ‘a business comparable in all essentials

to those usually conducted by private owners’ he would not be a public

officer or official. Under Genet law, the position of a teacher or

instrdctor in a state or public educational institution is-not that of a

public officer or official, but he is merely an employee thereof. Regerits

of the University System of Georgia v. Blanion, 49 Ga.-App. 602(4) ;

“Board of Education of Doerun v. Bacon, 22 Ga. App. 72. To hold

plaintiff, an employee of the University Athletic Association, a public

official. would, in this court’s opinion, be extending the ‘public official’.

a tion nd that contemplated by the ruling in the case of New

York Times Company v. Sullivan, supra.” a

See also: Martin v. Smith, 239 Wis. 314, 1 N. W. 2d 163, 140

The case of Barr v. Matteo, 360 U. S. 564, 3 L. ed. 2d 1434, 79.

S. Ct. 1335 (1959), cited in the Times case, held that in the reciprocal

situation where two government employees were suing the director of

an important United Statés Government agency for his alleged libelous

conduct, the director, a public official, has absolute privilege, regardless

_of the existence of malice, in defense of the alleged libel, although his

cohduct was within the outer perimeter of his line of duty. The policy

of this position is to aid in the’effective fungtioning of government by

assuring that government officials shall be-free to-exercise their duties

without, fear of damage suits with respect to acts done in the course

of those duties. ae . .

In cases decided since the Times case, the “public official” desig-

nation has not been extended. The court, in the case of Garrison v.

- Louisiana, 379 U. S. 64, 13 L. ed. 2d 125, 85 S. Ct. 209, (Nov. 1964),

jn reversing the conviction of the New OrleanseParish District At-

torney for the criminal defamation of eight ju of the Criminal

District Court ofthe Parish of New Orleans, stated that “the rule.

protects . . < the free flow of information to the people concerning ©

e a

~~ a

— ‘ ~

‘ e. ;

*s *

Appendia B _ + Fie 21a

to challenge the verdict and judgment on any of the con-

_ stitutional grounds asserted in Times. |

-* Tae Arcuments or CounsEL.

. Curtis contends that the jury arguments of Butts’

counsel constituted ‘‘significant and fundamental errors

‘which the court may notice-without objection’. *

_—~

pdblic officials, their servants’. . .”, whatever touches upon “an

official’s fitness for office is rele . » . . A candidate must sur-

render ‘to public scrutiny and di ion so much of ‘his private char-

acter as affects his fitness for office”. Justice Goldberg, in his con:

curring opinion, stated that ‘libel on the official cofiduct of the gov-

ernors (of the people) . . . can have no place in our Constitution.”

The Second Circuit, in. Pauling v. eas Syndicate Company,

Inc. (2nd Cir. 1964), 339.F. 2d 659, considered the possible exten-

sions. of the doctrine of the Times case,. stating that a candidate for

public office would seem an inevitable candidate for extension; and that

once an extension is made, the participant in public debate 6n any

issue of grave public concern would be next’in line. ~Quoting the

‘Time case,.the court then said: “ ‘The profound issues should be un-

inhibited, robust, and wide-open’, now applied. to confer immunity on

‘vehement, caustic, and sometimes unpleasant sharp attacks on govern- .

ment and public officials’, may some day be found to demand still

— erosion’ of the protection heretofore given by the- law of

efamation.” . ;

~The Henry v. Collins and Henry v. Pearson cases, 380 U. S. °

356 (1965), reversed 2*judgment for the plaintiffs on the ground that

_ the lower court’s charge to the juryeon malice was error under the

Times and Garrison cases, thus indicating: that a County Attorney

and a Chief of Police would come within the privilege. Justices Black,

- Douglas ang Goldberg concurred, not due to the error in the charge,.

but on the ground that such a suit would viglate the First and

Fousteenth Amendments under the Times case, where the defendant

_ published his criticism of the plaintiffs’ performance of their public

duties. 3

This court in Buckley v. The New York Times (5 Cir. 1964),

'338 F. 2d 470, after deciding the case on procedural grounds, stated in

dicta that “a judicial determination by this court of the proposition

that the principles of (the Times case) should be extended to candi-

dates for public office, must await an appropriate case.”

For other cases décided by district courts, see: i: bs TAN |

ich: ,

of Women Voters of the Grand Traverse Area (W. D.

. $6 F.R. D. 4; and H. O. Merren & Co., Ltd. WA. H. Belo Corp. ©

(N. D. Tex. 1964), 228 F.Supp. 515. | ae

~ °°,

Me <« s Appendix B

| The record reflects that Curtis was sepnonenied at the

trial by several attorneys. One argument for each side was

‘made on Friday and ‘the remaining arguments. were com-

pleted the following Monday. Much of. the argument of

which complaint is now made was offered on Friday. Yet,

no objection to any portion of the arguments was raised

until: Curtis filed: its motion for new trial | nine days after

the jury verdict was returned. aa

The trial court correctly disposed of this matter 3 in the

following language:

_’*4t is an elementary principle of federal law that a

new trial will’ not be granted where a party seeks to

raise for the first time, on a motion for a new trial,

_ (the objection) that opposing counsel was guilty of

misconduct in-his argument to the jury, where such

conduct was not excepted to during the trial.’’™

If, as Curtis’ counsel now claim, the arguments were,

among other things, “‘grossly improper and inflammatory’’,

‘intemperate and inexcusable’’, ‘‘appeals to passion and.

prejudice’, “‘corruptions of. the evidence’’, ‘‘completely

ansupported by the evidence’’, and ‘‘unsworn testimony

of counsel’, it is,inconceivable to us that they. would have”

delayed so long without raising the slightest hint of an

objection. Leeway must often be allowed counsel in ob- .

jecting to argument lest the objection itself magnify the

harm. But to say nothing during argument, the extended

‘ weekend recess, and for nine days thereafter, leaves us

PRETTY See EE TNS ~

with -the conviction that they did not consider the argu-

ments objectionable at the time they were delivered, but

made their siéim as’ an afterthought.

24. Supra note 6 at 922.

See also: Fidelity & Casualty Co. of N. y. v: Williams (Sth Cir.

1952), 198 F. 2d 128.

--—""“Appendi@ Bos

Furthermore, after carefully considering the entire

record, we do not consider that, the arguments belatedly

objected to would have required a reversal, even if timely

objections had been made. Some of the argument was

invited, but the very nature of the case made it virtually

impossible to discuss the evidence free of emotion or

drama. The editor-in-chief of the Post set. the tone and.

the stage for the attack. He openly boasted that the Post’s .

_ new policy of ‘‘sophisticated muckraking’’ was the ‘final -

yardstick”’ of editorial achievement since it meant. ‘‘we are

hitting-them where it hurts.’’. -It was no wonder that the

- author Graham was equally callous in admitting that “he

_ knew that ‘‘when this article ,was published that. was the

death of Wally Butts in his chosen profession’’ and th

‘Curtis Publishing Company knew that when that article

- was published it would ruin Coach Butts’ career.’” The

policy of the magazine so bluntly stated => was by itself |

25.-In the deposition of Clay D. Blair, Jr., editor-in-chief, it was

developed that for the first quatter of 1963, Curtis showed a doss of

‘about $1.1 million, compared to a loss in 1962 for the same quarter of

$4.7 million; that in 1960 the amount of. advertising revenue was

$106 million ; that in 1961 the figure had dropped to $86 million; that

Blair was made a vice-president of Curtis in- June of 1962; that cir-

- culation ‘is one of the factors that affects advertising revenues; that

demography is important, because, “all circulation in Russia would not -

.be appealing to General Motors ;” that Blair wrote a memo to his

staff, which found its way to a national magazine, in‘which he was

quoted as saying: “The-final yardstick is the fact that we have about

six lawsuits pending, meaning that we are hitting them where it hurts,

with solid, meaningful journalism”; that he was not being facetious

when he used the phrase “sophisticated muckraking” ; that he meant

it when he said it and when he testified ; that he. was correctly quoted © .

as being “concerned with the image of the Post and in trying to get a

.hew image, portray a different type of magazine”; that he did change

the image of the Post; that the Butts issue was representative of the _

new type magazine Curtis was interested in publishing ; that “we have

perhaps come . . . 25 per cent of the way with this issue . - .

, toward the goal of the magazine that I envision” ; that this issue is a

step in the right direction; that he was acquainted with the term

“muckraking” prior to using it in the interview which led to an article

in Newsweek on November 19, 1962; that in the interview with N ews-

eo .

_ more than enough to inflame’ the jury. Counsel for Butts

could only. gild the lily.”

THE Exc.usion OF TESTIMONY.

Butts was asked by Curtis’ counsel on cross-examina-’

. tion if he recalled having made a statement over television,

on a date prior to the institution of this action, that he

‘¢would never at any time and never . . . (had) done any-

thing that would injure the University of Georgia’’.. He

responded that he had made a statement to that effect, but.

that ‘‘as far as my services at the University of Georgia are

concerned that represents-only my opinion”’. Proferred

evidence which Curtis asserts ‘‘is replete with incidences

of Butts’ unfaithfulness and 4 disloyalty to the University

. of Georgia’’, was excluded by the trial court. Curtis in-—

sists, however, that the-¢vidence should have been ad-

mitted, not only to demonstrate Butts’ true character, but

to impeach his credibitity as a witness.

week he stated that he intended to “restore the crusading spirit . . .

the sophisticated muckraking, the expose in the-mass magazines - . .

to provoke people, make them mad”; that he further stated in the

interview : “But careers will be ruined, that is sure”, and he could not

quarrel with the fact that Butts’ career was one of the careers toswhich

reference was made in that statement. :

-26. The trial court also pointed out that Butts was unquestionably

one of the leading figures in the national football picture ; that respon-

sible officials of the Post knew that after the article was published

Butts’ career would be ruined; that Butts, through his attorney, had

notified Curtis before publication that the article was false; that one

of Butts’ daughters had telephoned long distance to a Post official

with a plea that the article be withheld from publication ; and that after

pablo Butts had, pursuant to Georgia law, requested a retraction -

rom Curtis, which was refused. The court then commented that the

jury was warranted in concluding from all the facts in the case, includ-

ing “the persistent and continuing attitude of the officers and agents

of the defendant that there was a wanton or reckless indifference of

plaintiff's rights.” Supra note 6 at 919. |

OAS BIA Cae IS BEN ag

Se ee ee ee ee —

J seers “ miguasns

Appendia B 85a

Weare in agreement with the trial court that proof of

Butis’ character could be made by reputation only, and

that particular acts of misconduct are irrelevant. a

The rule that ‘‘a party may be cross-examined to bring

out matters, even though they may be collateral, which

are inconsistent with the testimony given by him’’,” is not

applicable here. The answer given by Butts to the ques-

tion asked by Curtis’ counsel concerning a statement previ-

ously made out of court, was not such an affirmative pro-

fession of faithfulness and loyalty to the University of _

Georgia, made at the trial, as would open the door, fox the

purpose of impeachment, in -mitigation of damages, or .

otherwise, to the admission of alleged incidents of ‘‘ui-

faithfulness and disloyalty’ to that institution, either by .

cross-examination of Butts, or by: ‘direct evidence from

other witnesses. |

Complaint is. made that Curtis was not petiiditied =.

show that Butts had refused to answer certain questions in

- his deposition, and that evidence offered as to purportedly

false testimony given by Butts in his deposition was re- -

jected. Butts refusal to answer was on advice of counsel.

The answers sought were subsequently supplied, but Curtis

argues that because of the delay it was denied adequate

discovery and thereby _—_ valuable met in the prepara-

tion of its case’’.

The trial judge was clothéd with broad discretion in

controlling the extent of. direct and cross-examination,”

and we cannot say ,that he abused that discretion in ex-

Gluding the proffered evidence. |

27. Note 6, supra, at 921. f

28. 98 C. J. S. Witnesses, oe 3 Wigmore, Evidence (3d. ed.

1940), § 1006(2).

29. See Roberson v. United States, (5 Cir. 1957) 249 F. 2d 737;

Carpenter v. United States, (4 Cir. 1959) 264 F. 2d 565; Poliafico v.

United ‘rate (6 Cir. 1956) 237 F. 2d 97.

Jeroen enema aay neranriew ot was aster §

262 Appendia B

Similarly, we. do not think the trial court abused his. - i

.discretion_in refusing to admit evidence that the witness

Cocca while a minor in Ohio, had been convicted_

of petty larceny in 1933. The ruling was based upon lapse

of time.*° | | 2

. Curtis sought to introdyce into evidence certain extra-

judicial statements made by. George Burnett, and state-

ments made to him by third parties. These included in-

quiries ‘made by Burnett of the telephone operator ~-and

her replies thereto;*! a telephone conversation between

. Burnett and one Milton Flack, purportedly made imme-

diately after Burnett had overheard a telephone conversa-

tion between Butts and Bryant; * Burnett’s conversation

with one Bob Edwards about the notes he had taken; *

Burnett’s statements at meetings with officials of the Uni-

versity of Georgia; and statements of these university —

officials made in checking Burnett’s story at meetings with

30. Supra note 6, at 921. / 2 -

. 31. Curtis says this was off¢red only to show that a telephone

conversation between Butts and) Bryant had actually taken place.

Butts, however, contends no such limitation was placed on this

testimony. - / . .

32. Burnett testified that he had been trying to contact Milton

Flack by telephone when*he pose gen the alleged call between Butts

and Bryant, after which he says hé hung up the phone and_sat for

about twenty or thirty seconds before picking up the phone and again

calling Flack’s number. Curtis wanted to prove that Burnett asked

Flack: “Is Wally Butts in your office now Milt”, to which Flack is

supposed to have replied that Butts was at that time in his office

making a telephone call. The court allowed Burnett to state that he

_ Flack, but excluded as hearsay anything he might have said to

- Flack. © .

33. Bob Edwards was division manager of the company with

‘which Burnett was connected. Burnett testified that he had a con-

_ versation with Edwards on January: 4, 1963 about the notes he had

Ra taken on September 13, 1962. The court sustained an objection to

' the conversation itself on the ground that it-was hearsay. On cross-

examination, Burnett testified that he did not have his notes with him

when he first talked with Edwards on January 4, 1963, but did show

them to Edwards some two weeks later.

REE enc Py

Appendix B | o7a

him. All of these incidents had been: reported in the

article. = En . / ¢

It was, of.course, important from Curtis’ standpoint

that it show its good faith in publishing the article. The.

proffered evidence would have tended to show that these

statements as-set forth in the article had, in fact, been

‘made, and we think the trial court should have admitted

it for that limited purpose only. However, the full import

_ of most, if not all, of that evidence got before the jury in

some form before the trial was concluded. - |

. In any e¥ent, none of the testimony involved related to

the real ‘‘sting of the libel’’, and we do not consider that

substantial error was committed in its exclusion. Curtis

-had the burden to show more than nominal error to secure

reversal for rulings of evidence,** and this it has failed .. -

to do. a

| ‘Tur Jury InsrRvorions.

‘Complaint is made that the trial court committed plain

and prejudicial error in instructing the jury. No objettions

to any. instructions were made at the trial of the case.**

Rule 51, F. R. Civ. P., provides in part that: .- ;

‘*No party may assign as error the giving or the

failure to give an instructioh unless he objects thereto

before the jury retires to consider its verdict, stating

- distinctly the matter to which he objects and the

grounds of his objection. Opportunity shall be given

to make the objections out of the hearing of the jury.’”’ ©

34. Curtis contends that the investigation ‘conducted by the

officials of the University of Georgia would support Burnett’s cred-

Ability, because it demonstrated his willingness to cooperate, and to

have his story questioned.

35. Rule 61, F. R. Civ. P.; Jennings v. United States (3 <<,’

1934), 73 F. 2f 470, 471. . -

36. The claim that certain of the jury instructions violated con-

stitutional rights of Curtis is dealt with in this opinion under the

heading “Curtis’ Constitutional Rights”. See notes 15-23, supra.

28a . Appendia B

_ Fall opportunity was afforded counsel for Curtis ‘to

make any objections before the jury was permitted to con-

sider its verdict. Under Rule 61, F. R. Civ. P., all errors

which could not change the result of the trial, or which did

“not affect the substantial rights of the parties, are harmless*

and must be disregarded. No action taken by the court.

‘with respect to any instruction now under attack appears

‘ inconsistent with substantial justice, or to have affected

the substantial rights of the parties, and we agree with the

trial court that Curtis may not now complain. ”

THE Rervecd To Give Dae Insravortoxs.

There is no merit to Curtis’ contention that the trial

court erred either in refusing to charge the jury that it

should construe’ Butts’ testimony most strongly agaizst-

him, or in refusing to charge the jury that it should dis-

regard the entire testimony of any witness whom it found

to have knowingly and wilfully testified falsely. 8

The court’s charge fully covered the general rules re-

lating to the credibility of witnesses. The question con- :

cerning the credibility of any witness, and whether or

not he had been successfully impeached, was ‘left entirely

to the jury. There was no showing that any witness had

knowingly and wilfully testified falsely, and the evidence

was more than adequate to support the verdict, even if the -

jury had completely disregarded the alleged ousivecnl

— of Butts.

THE ‘*Newty Discoverep Benen”, '

In its motion for new trial under Rule 60(b) (2), F. R.

- Civ. P., Curtis contended that new evidence discovered |

since the trial conclusively demonstrates. the wrote of the

37. Supra note 6, at 922.

Appendic B We

testimony of two of Butts’ witnesses, Dr. Frank A. Roge.

and Coach Paul ‘‘Bear’’ Bryant, and strongly supports the —

- defense of justification. ii :

The trial court rejected this contention because (1)

Curtis had not exercised reasonable diligence, (2) the evi-

dence would merely tend to affect the weight and credibility

of the testimony of Dr. Rose, and (3) the evidence would

' not have changed the verdict in this case.** .

We are in accord with the trial court’s conclusions, and |

do not find that he has abused his discretion. ‘6 5.

| -

Punitive Damacss.

The trial judge gave his reasons for requiring the ©

remittitur of all punitive damages in excess of $400,000."

There is not the slightest suggestion that he thought, or

even intimated, that the larger award was based on pas-

sion or prejudice. On the contrary, fully aware of the dis-

tinction between a verdict excessive in amount which ‘may j

be reduced by remittitur, and one resulting from improper

influences such as passion and prejudice which may not

be corrected in this way, the judge necessarily rejected

the idea that this verdict had been infected by suth destruc-

tive elements. i =, |

The Georgia Code expressly provides for punitive dam- *

ages.” Under Georgia law, three things are left for the

38. Ip his opinion dated April 7, 1964 the trial court fully dis-

cussed this matter. .(See supra noté 23, at 16). .

. 39. Supra note 6, at 919.

d 40. Ga. Code Ann. § 105-2002: “In every tort there may be

aggravating circumstances, either in the act or the intention, and in

that event the jury may give additional damages, either to deter the _

wrongdoer from we ope Bae trespass or as compensation for the —

wounded feelings of the plaintiff.” ‘Also see National Association for.

the Advancement of Colored —_ v. Overstaeet, .... Ga. i...

-.+- S. E. 2d .... (No. 22814,

1965). See Division 4, subd. (b) of opinion.

* 30a Appendix B

jury to determine: (1) ‘when punitive damages shall be

allowed’’; (2) ‘‘the amount of such damages’’; and (3) the

' purpose of the award as ‘‘either to deter the’ wrongdoer

from repeating the’ trespass or as compensation for the :-

wounded feelings of the plaintiff.’’* Obviously there are,

and can be, no precise standards for these determinations.

‘Not for the first time in the common law traiition, the

law turns to the jury. And Georgia prescribes that ‘‘(t)he -

‘measure of . - punitive damages . . . is to be fixed by

the enlightened conscience of an impartial jury.’’ ” What

the ‘‘enlightened conscience’? of one impartial jury might

consider to be fair may not satisfy another impartial jury

with an equally enlightened conscience. A wide variance’

. in the amounts of such awards is inescapably inherent. in ©

any submission of the issue of punitive damages.

But, of course, no one wor'd suppose that it is left |

wholly and solely to the jury. As with every other issue

traditionally for jury resolution, the trial judge must still

determine whether,.as a matter of law, the verdict com-

_ ports with law. The law recognizes that an award of any

type of damages—compensatory or punitive—made by a. ,

jury free of bias, may be too small or too large. When that

occurs—when the judge concludes that the law regards

- the verdict as too small or too large—then appropriate

action must be taken by the court. Reviewing the amount

of the verdict and reaching th@ conclusion that it is more.

than the law would permit is not, therefore, the equivalent

of the judge’s ‘determination that excessiveness is due to

a runaway jury, under the spell of passion or bias.

_ | The trial judge had the duty of determining whether as

a matter of law (a) any allowance for punitive damages

41. National Association for the Advancement of Colored People

v. Overstreet, supra, note 40. |

42, Id.

eatin

"note 23, at 16); that :

Appendix B eon 3la

could be made, and (b) what the maximum would-be. As

to’(a), the trial court not only expressed the opinion that

the article. was extremely defamatory, and that the jury

had no choice other than to find Curtis liable, but he also ©

_ thought that there was ‘‘ample evidenca from which a

jury could have concluded that there was reckless disregard :

by defendant of whether the article wag false or not,??#

Upon determining (b) he had then to decide whether to:

grant a new trial or require a remittitur as to the excess.“

The latter is‘ permissible course and does not, infringé

43. The trial court said, in its April 7, 1964 opinion (see supra /

“If it were conceded that plaintiff Butts was a ‘public official’,

the case of New York Times Company v. Sullivan would not permit

the vacating of this court’s previous judgment, as the ruling in the

Times does not prohibit a public official from recovering for a

detamillory falsehood where he proves ‘actual malice’—that is, with .

knowledge that it was false or with reckless disregard of whethex,it '.

was false or not. (Italics supplied). In the trial of ‘this case, there

was ample evidence from which a jury could have concluded that

there. was reckless disregard by. defendant of whether the article was

false orcnot. See the court’stuling on defendant’s motion for a new

trial dated January 14, 1964. Butts v. Curtis Publishing Company,

225 F.. Supp: 916.” et

} 44. State Farm Mutual Automobile Insurance Company v. Scott,

“Sth Cir. 1952) 198 F. 2d 152. i

Curtis cites Crowell-Collier Publishing Company. v. Caldwell

(5th Cir. 1948), 170, F. 2d 941, where this Court held that the refusal

to set aside a libel verdict of $237,500 was an abuse of discretion. :

Judge Hutcheson found that “litigants, witnesses, lawyers and jury

seemed to regard the contest as a sporting event, a wager by battle,

in which the best. battler ought to and would win;” that the trial

judge “held: himself a little too aloof from the trial . . ., with the

result that the trial got out of hand;” and that “when counsel for

‘defendant made vigorous objections to the argument ‘as highly im-*.. ~

Proper, inflammatory, and prejudicial, and requested the court to ,

instruct the jury to disregard them, the court said merely : ‘Objection

- overruled. ‘Request denied. Exception noted’ ”, Obviously, the

same circumstances were not present in the instant case, where the —_—..

judge was in complete control, the trial was conducted in an ordefly, .

efficient and proper manner, and no objections whatever were made

to the conduct of the trial; or to the arguments’ of counsel.

Ps : \ ?

32a -c _ amet.

upon the Seventh hininiliigtias 8 guaranty of a jury trial.*

In making his determination as to (b), he pursued the

correct standard of keeping the verdict ‘‘within the reason-

* able-bounds considering the purpose to be achieved as well

as the corporate defendant’s wanton or reckless indiffer-

. ence to the plaintiff’s rights.’’** Obviously, in deciding the -

matter the judge had to pick a dollar figure e beyond which

the law would not go. He selected the sum of $400,000 as

- the maximum which the law would accept to deter Curtis

from répeating the:trespass or to compensate the wounded

- feelings of Butts.7 Although the reduction required, and

the sum remaining, were each substantial, there was ample .

basis for the trial court’s judgment.

To have granted a new trial might appear to have been

an easier ‘way out. But that is really no solution. Ona

retrial, the judge could not instruct the next jury as to the

dollar maximum of any suck verdict. So th&t jury would

be pretty much on its own, under \the unavoidably vague,

elastic standards prescribed in the Code, as measured by

the enlightened conscience of an impartial jury.“* The -

45. Arkansas Valley Lead & Cattle Co. v. Mann, 1889, 130 U. S.

69, 9 S. Ct. 458, 32 L. ed. 854; International Paper Co. v. Busby,

(S Cir. 1950) 182 F. 2d 790 ; United States v. Certain Parcels of Land

in Rapides Parish, La., (5 Cir. 1945) 149 F. 2d 81, 83.

46. Supra note 6, at 920.

47. Supra note 6, at 919. Butts, in erguile that the district court

was far more lenient to Curtis in reducing the award than was justi-

_ fied, said: “The jury in the case-at bar recognized that a 100 million

dollar corporation with a circulation of between six and seven million

‘ copies and a readership of approximately 22,000,000 persons can be

deterred by no less than three million dollars as a charge for its mis-

use of a cherished Anerioon freedom—the freedom of every man to

live unthreatened by calumny. This jury believéd that anything less

than. this amoynt would nicrely add to the audacious course of

‘sophisticated muckraking* upon which the Curtis Publishing Com-.

pany has admittedly set its avi ” See also note 26, supra.

48. See notes 40 and 41, aie ies *

| ‘Appendia B. ; 33a-

trial judge, on the second trial, would then be forced to

repeat the process of testing for (a) and (b). If, as urged

by Curtis,: the determinatian by the-judge that the amount

is too much, necessarily meaps a new trial, it is quité pos-

sible that the case would never end: Georgia has pre-

scribed the ‘‘punishment’” for aggravated willful torts.

The law ought not to frustrate the vindication of that policy

by an unrealistic proeedure. The jury verdict, as reviewed

and reduced by the trial judge, is the tort-feasor’s assur-

ance that such -damages will not exceed that which the

law would tolerate to achieve the Georgia objective of de-

terring repetition or compensating wounded feelings.

Cono.vsion.

This is no ordinary libel case. The publication of the

article by the Post, in the face of several specific appeals

that it refrain from doing sq, was part and parcel of a

general policy of callousness, which recognized from the

start that Butts’ career would be ruined. ‘The trial judge’s

appraisal of the evidence, with which we are in complete

accord, was that it was sufficiently strong to justify the

- jury in concluding that what.the Post did was done with .

. reckless dikregard of whether the article was false or not.

The case was fully developed during extensive pre- __

trials, and in a jury trial lasting two weeks. The reeord |

itself comprises 1613 pages. We have given full considera-

tion ‘to the entire record, as well as to the more than 650

‘pages of briefs submitted by both parties, the numerous -

-authorigies cited therein, and the oral arguments of counsel.

We think that Curtis has had its day in court. It apparently

thought so too until the jury verdict was returned. This .

. is attested by the fact that practically all of its present

complaints were not even raised until after the trial:

en ee

34a A ppendic B

Believing and so finding that the trial was nik and

that the judgment of the trial court was correct and’ proper

in all respects, it is AFFIRMED.

In view of our holding, we have given no vankieidien

to Butts’ cross —_—

~ Rives, Circuit Judge, dissenting: |

Wallace Butts, former Athletic Director of the Univer-

sity of Georgia, instituted this diversity action in the dis-

trict court against the Curtis Publishing Company, pub-

lishers of The Saturday Evening Post. The complaint

demanded $5,000, 000 general and $5,000,000 punitive dam-

ages for an alleged libel contained in an article entitled,

“The Story of a College Football Fix,’’ which was pub-

lished in the March 23, 1963; issue of the Post. The action _

. resulted in a jury verdict against the defendant for $60,000

general damages and $3,000,000 punitive damages. The

district court ‘granted the defendant’s motion for a new

trial, conditioned upon the failure of the plaintiff to remit

that portion of the award of punitive damages in excess of

$400,000. The district court was of the opinion that the -

award of $60,000 for actual damages was not excessive, but

the court concluded that the award. for punitive damages

was ‘‘grossly exgessive.’’ Pursuant to the district court’s

order, the plaintiff filed a remittitur and thereafter the

district court overruled the defendant’s motion for a new

trial and entered judgment for the plaintiff in ‘the amount of

$460,000. Approximately six weeks after the district court

_ entered judgment, the Supreme Court decided New York

Times Co. v. Sullivan, and the defendant filed its motion

1. 376 U. S. 254 1964). See, generally, Berney, Libel and the

First Amendment—A ew Constitutional Privilege, 51 Va..L. Rev. ©

1 (1965).

Appendix B 35a

for new trial under Rule 60(b) of the Federal Rules of

< Civil Procedure. The defendant contended. that the previ-

ous judgment should be vacated and a new trial ordered °

in light of the New York Times Co. case. ° The district court

denied the motion.

It is my view that the district court erred in not grant-

ing a new trial in light of New York Times Co. If mis-

taken in that view, I am nonetheless convinced that the

part of the judgment awarding $400,000 in junitive dam-

' ages Cannot stand in the light of the first, fifth and seventh

amendments to the Constitution.

First, however, tet.me say that this record makes clear ©

. beyond controversy that the questions of fact are for the

jury’s determination. The district court denied the plain-

tiff’s motion for a directed verdict. Plaintiff’s counsel in-

sisted and the following colloquy ensued: -

‘*Mr. LookeRMaAn: | Sai:

“‘—on the point that the defendant had not, under

the evidence that it has shown, proven the truth under

the burden that it had of the things that it has said

against the plaintiff in this article. ane |

‘*THE Court: | , ar:

_ “Mr. ‘Lockerman, I think it would [be] in error

for this Court to withdraw that issue from the Jury.’

Tn ruling on the motion for new trial, however, the district

court commented: ‘‘The guilt of the defendant was so

Clearly established by ‘the evidence in the case so as to

have left the jury no choice but to find the defendant

liable.’? The majority opinion quotes that comment and

adds its ‘‘Amen’’ thus: ‘ “We heartily agree with that ap-

praisal.”” I do not think that any such appraisal should

be made. Even a casual reading of the record demon-

strates that the questions of fact should be left to the jury.

36a | Appendia B

I. Sullivan. v. New York Times Co. necessitates reversal

of the judgment in toto. ;

: : :

The Supreme Court in New York Times Co. v. Sullivan

held that the Constitution limits state power, in a civil ©

action brought by a public official for criticism of his official

eonduct, to an award of damages for a false statement

made with ‘‘actual malice,’? that is with knowledge that-it —

was false or with reckless disregard of whether it was false

-or not.?, The district court did not think the New York —

Times Co. case governed the present action for the: reason

that the present plaintiff was not-a ‘‘public official’? as -

contemplated by the New Work Times rule, and for the

- reason that ample evidence existed from which a jury could .

have concluded that there was reckless disregard by the

defendant of whether the article was false or not. [R.,

pp. 1467-68.] The district court stated that ‘‘to hold plain-

tiff, an employee of the University Athletic Association,

a publie official would, in this Cotirt’s opinion, be extending

the ‘public official’ designation beyond that contemplated

- by the ruling in the case of New York Times Company v.

Sullivan. . . .”?. [R., p. 1467.] The plaintiff held to be

* - a **public official’? in New York Times Co. was Commis- .

sioner of Public Affairs, one of three elected Commis-

sioners of the City of Montgomery, Alabama. His duties .

involved the ‘supervision of the Police Department, Fire

Department, Department of Cemetery and Department of

"*. Seales? The Supreme Court noted:

+ a «

‘We have no occasion here to determine how far

_* + down into the lower ranks of government employees

the ‘public official’ designation would extend for pur-

_* 2. 376 U.S. 254; 279-80 (1964) ; Garrison v. Louisiana, 379:

U. S. 64, 67 (1964). . .

$. See New York Times Co. v. Sullivan, 1964, 376 U. S. 254,

256. a , Be

Appendia B- 8a

‘poses of this rule, or otherwise to specify categories

of persons who would or would not be included. Cf.

~ Barr v. Matteo, 360 U. S. 564, 573-575.. Nor need we :

here determine the boundaries of the ‘official conduct?

concept. It is enough for the present case that re-

spondent’s position as an elected city commissioner

clearly made him a public official, and that the allega-

tions in fhe advertisment:concerned what was allegedly

his‘ official conduct as Commissioner in charge of the

Police Department.‘

It is clear that ‘‘public officials” as contemplated by _

New York Times Co. are not limited to elected officials. —

’ In Garrison-v. Loutsiana,>-decided subsequent to New York

Limes Co.; the District Attorney for Orleans Parish, Louisi-

_ ana, was convicted of criminal libel for issuing a statement

. disparaging the judieial conduct of the eight judges of the

which brought the District Attorney’s statement within

the purview of criticism of the official conduct of ‘‘public

officials’? and entitled to the benefit of the New York Times

Co. rule, did not hinge on whether the eight judges were

elected officials. No mention was made of how the judges

obtained their positions. Moreover, it is clear from the

Court’s statement in New York Times Co., quoted ‘above,

that the rule applies to “‘government employees.”’ The

question reserved by the- Court was “‘how far down into -

the lower ranks of. government employees the ‘public offi-

cial’ designation would extend. . . .’?¢ A precise for-

mula for designation of ‘‘public officials” for the purpose

of the New York Times rule was not attempted. Indeed,

4, Id. at 283, n. 23, ie

5. 379 U. S. 64 (1964): |

6. New York Times Co. v. Sullivan, 376 U. S. 254, 283, n.

_ 23- (emphasis supplied).

38a ay . Appendia B

it is clear from the background and reasons for the rule

that to fashion and apply a precise formula for designation

‘of ‘‘public officials’’ for the purpose of the New York Times

rule would be a formidable, if not impossible, task.’

| The first amendment secures freedom of expression

_ upon public questions. The constitutional safeguard, the

Supreme Court has. said, ‘‘was fashioned to assure un-

fettered interchange of ideas for the bringing about of

political and social changes desired by the people.’’* Simi-

larly, ‘‘[I]t is a*prized American privilege to speak one "8

mind, although not always with perfect good taste, on all

public institutions.’”’® Mr. Justice Brandeis has stated

that ‘‘those who won our independence believed . . . that

public discussion is a political duty; and that. this should

be a fundamental principle of the American govern-

ment.’?*° New York Times Co. v. Sullivan, 1964, 376 U: S.

254, 269-70. As was said in Garrison v. Louisiana, “the

First and Fourteenth Amendments embody our ‘profound

national commitment to the principle that debate ‘on public

issues should be uninhibited, robust, and wide-open, and

that-it may well include vehement, caustic, and sometimes

-unpleasantly sharp. attacks on government and public offi-

cials.’’ New York Times Co. v. Sullivan. . . .”? It was

against this background that the Supreme Court in New

York Times Co. stated that the newspaper advertisement,

which contained an inaccurate description of eventeoccur-

ring in Montgomery in connection sear rights

movement, was an expression of grievance and protest on

7. Cf. Burton v. Wilmington Parking Authority, 1961, 365 U. S.

715, 722 (state responsibility under the Equal Protection Clause).

8. Roth v. United States, 1957, 354 U. S.:476, 484.

9. Bridges v. California, 1941, 314 U. S. 252, 270.

*10. Whitney v. California, 274 U. S. 357, 375-76 (1927) (con-

curring opinion). _ ee ; .

11. 379 U. S. 64, 75 (1964).

| Appendix B 39a

one of the major public issues of our time and would seem

clearly to qualify for the. constitutional protection.”

It is therefore necessary to. examine the facts and

weigh the circumstances to determine whether the allegedly

defamed plaintiff.is involved in the ‘‘conduct of the public

business’’* to an extent which attains constitutional sig-.

‘ ‘nificance. — ,

The plaintiff held his position of Athletic Diréctor of

The University of Georgia by reason gf a contract with .

the Board of Regents of the University System of Georgia,

. which hired him as an employee. . [Brief for Appellee, p. ;

67.] The plaintiff supervised the scheduling and location

of games, planned and budget, attended to the addition of

new athletic facilities, supervised ticket sales and prepared

plans for band trips and performances. Moreover, he gen-

erally supervised ‘‘the entire athletic program of the

school.’”’ [R., pp. 654-55; Brief for Appellee, pp. 69-70.]

The education of youth in the State of Georgia is unques-

tionably a matter of public concern. By his position the

plaintiff is intricately involved with a significant public

issue, that is, the education of the youth who attend The .

University of Georgia—a public institution. According to

the Duke of Wellington, ‘The battle of Waterlod was ‘won

on the playing fields of Eton.’? The ever-increasing diffi-

culties to be faced by this nation require the utmost integ-

rity in the training of its youth. I think the plaintiff js .

**public official’’ as contemplated by the New York Times

Co.. decision. | .

_ The-article, which the defendant published under the ;

subtitle, ‘How Wally Butts and Bear Bryant Rigged a |

Game Last Fall,”’ concerned alleged information on

Georgia plays given by Wallace Butts to Coach Paul Bry-

12. See 376 U. S. at 271. ae

13. Garrison v. Louisiana, 1964, 379 U. S. 64, 73.

40a ey Appendia B

ant relating to the University of Alabama and the Univer-

sity of Georgia football game played in Birmingham in

September 1962. The article charged Wallace Butts with

being corrupt and with betraying his players. It charged

that the players were forced into the game like ‘‘rats in a’

maze’? and ‘‘took a frightful physical beating.’’ In an

italicized preface to the article, ‘‘The Editors’’ stated that

Wallace Butts and Coach Bryant were participants in the

greatest and most shocking sports scandal since that of the

Chicago White Sox in the 1919 World Series. In the same

preface, Wallace Butts was relegated to a status worse than

that of ‘‘disreggtable gamblers’’ and a corrupt person who,

employed to ‘‘educate and guide young men,’’ betrays or

sells out his pupils. [See R., pp. 88-89 (order granting

motion for new trial.) ] | oes

I think it clear that the defendant’s statements are ,

within urview of criticism of the official conduct of

public officials. As stated by the Supreme Court, ‘‘the

public-offici 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, malfeasance, or improper motiva-

_ tion, even though these characteristics may also — the

official’s private character."*

The district court charged the jury that general dam-

ages were recoverable absent proof of actual malice. The ©

plaintiff argues that even if the New York. Times rule is -

applicable, the district court’s failure to charge that malice

is a prerequisite for actual damages is harmless error since

the district court charged that actual malice was required |

14. Garrison v. Louisiana, 1964, 379 U. S. 64, 76-77.

Appendie B as — 4la

for an award of punitive damages and the jury awarded

punitive damages. I do not agree that the district court’s

charge complies with the New York Times' rule.

In dealing with the question of punitive damages, the

district court charged the jury:

_ **Where it is established that the defendant was

inspired by actual malice in the publication of the

defamatory matter, the jury, in its discretion, may,

but is not required, to award punitive damages. As

previously stated to you, ‘actual malice encompasses

the notion of ill will, spite, hatred and an intent to

injure one. Malice also denotes a wanton or reckless

indifference or culpable. negligence with regard to the

rights of others:’’ [R., pp. 1356] _ (Emphasis sup-

plied.) ,

I think it clear that the district court’s charge does not

embrace the New York Times Co. definition of actual

malice, which is with knowledge that the statement was

false or with reckless disregard of whether it was false -

or not. The New York Times rule emphasizes ‘‘the know-

ingly false statement and the false statement made with

reckless disregard of the truth,’’* and not merely intent

to injure the individual or negligent disregard of the

rights of others. The necessary requisite to a showing of

actual malice under the New York Times standard is proof

that ‘‘the lie . . . [is] knowingly and deliberately pub-

lished about a public official’’ or published ‘‘with reckless

_ disregard of the truth.””* wa

Since the jury might well have understood the district

court’s charge to allow recovery on a showing of intent to

inflict harm or even the culpably negligent infliction of

15. Id. at 75 (emphasis supplied).

16. Ibid. .

eae paaensnsteittaisthiatcim dis ep

42a — Appendix B

harm, rather than intent to inflict harm through falsehood,

the charge does not comply with the New. Y ork Times

standard." - ‘ .

The majority of this Court have held that the defend-

ant ‘‘has clearly waived any right it may have had to chal-

lenge the verdict and judgment on any of the constitutional

grounds asserted in Times.’’' While I respect the judgment

_. of the majority, I do not share that judgment."® In short,

'- Ido not think the defendant may be said to have waived

by ‘‘silenge’’ ‘a constitutional right not enunciated at the

time; it was not even enunciated by the counsel who peti-

tioned for certiorari in the New York Times Co. decision.

In the New -York Times Co. case, the trial judge

charged that the portions of the advertisement in issue were

“‘libelous per se,’’ that ‘‘general damages need not be al- . -

’ leged or proved but are presumed,’’ that the plaintiff was

entitled to recover both such ‘presumed’? and@#punitive

“damages if the jury decided that the words related to and

eancerned hin and that the damages awarded were not

excessive. Tlie jury awarded damagés of $500,000. ‘The

questions presented to the Supreme Court in the petition

for a writ of certiorari dealt with the award of ,000,

the sufficiency of the. evidence and the lack of proof of

special damages in light of the first amendment gs em-

bodied in the fourteenth.’ Conspicuously absent Is any

17. Henry v. Collins, 1965, 380 S. 356; see Garrison v.

Louisiana, 1964, 379 U..S. 64, 73. ‘

18. It seems’ to me that to constituté such a waiver there must

’ have been “an intentional relinquishment dreabandonment of a known

Fay v. Noia, 1963, 372 U. S. 391, 439.

19. In detail, the questions presented were:

“1. Whether, consistently with the guarantee of freedom of the

press in the First Amendment as embodied in the Fourteenth, a state

. may hold libelous per se and actionable by an €lected City Commis-

sioner, without proof of special damage, statements critical of the

right or privilege.” Johnson v. Zerbst, 1938, 304 U. S. 458, 464;

e ~

€

‘

nena Patria igs 3 em : ”

a i 0 ee EF

ee Appendie B eet

Suggestion that the first amendmext, as embodied iS tne

. fourteenth amendment, requires that a public official must

prove actual malice against critics of his official conduct.”.

Apparently this is due to the fact that the defendant’s

objections in the trial court were ‘directed to the absence

of a requirement of proof of special damages.” Only: by

looking at the New York Times Co. case in retrospect can

it be said that the defendant has*waived the great consti-

tutional rights contemplated by the New York Times rule.

But'applying the same ‘‘retrospective look’’-to the, present

case,” it is also clear that had the defendant contended the

same as did the defendant in the New York Times case,

i.e., that the first and fourteenth amendments were ‘‘in-

fringed by holding the publication libelous and actionable .

which are inaccurate in some particulars.

< .“2, Whether there was sufficient evidence to justify, consistently

conduct of a department of the City Government under his jurisdiction

_ with the guarantee of freedom of the press, the determination that

statements, n»ming no individual but critical of the Police Department —

under the jurisdiction of the respondent as an elected City Commis-

_ sioner, were defamatory as to him and punishable as libelous per se.

“3. Whether an award.of $500,000 as ‘presumed’ and punitive

damages for libel constituted, in the. circumstances of this case, an

abridgement of the freedom of the press.” Petition for Writ of Cer-

tiorari, p. 2, New York Times Co. v. Sullivan, 1964, 376 U: S. 254.

20. In three of the 105 pages of their petition for certiorari,

counsel dealt with “the doctrine espoused by the court below . . .

that a public official is entitled to recover ‘presumed’ and punitive

mental agency under his general supervision, if that publication tends

to ‘injure’ him ‘in his reputation’ or to ‘bring* him ‘into public con: .

tempt’ as an official—unless .a” jury is persuaded that it is entirely

true.” Except for the statement ‘of the case and facts, malice was

‘mentioned in one sentence. See Petition for a Writ of Certiorari to

the Supreme Court of Alabama, p. 13, New York Times Co. v.

Sullivan. | |

, 21. See Petition for a Writ of Certiorari to the Supreme Court -

of Alabama, p. 8, New York Times Co. v. Sullivan. .

22. In football jargon, “by being Monday morning quarter-

. ‘damages for a publication critical of the official conduct of a govern- _

44a Appendix B

. without proof of special damage,’ it would not have

affected the trial of the present action; for the district

court ruled, in dealing with the motion’ for new trial, that

plaintiff. [R.., p.1467.]

_ The fact that the present defendant offered no , datliade a

under Georgia | law, which. provides that communications: .

cgncerning the ‘‘acts of public men in their public capacity’’

are deemed privileged under certain conditions, cannot

be said to constitute a waiver of a defense that the plain-

tiff is a ‘‘public official’? under’ the New York Times -

Standard. As recognized by the plaintiff, members of the

‘athletic department are, like members of the faculty, ‘‘em--

ployees’’ under Georgia law and are not considered in

‘‘public office’? or ‘‘officers.”?* Thus, although the Georgia

statute which grants a privilege to ‘‘comments upon the

,acts of public men in their public capacity and with refer- |

ence théreto’’ * appears as broad, if not broader, than the

‘‘public official’? as contemplated ®y New York Times Co.,

the plaintiff recognizes that the @eorgia case law results

in a narrow application of the ee and thé present

plaintiff is not covered.

Moreover, I think that Henry v. Collins,* reflects that

the Supreme’ Court does not intend to allow the great:con-

stitutional rights inherent in the New York Times rule to

be ignored incase such as the present one.

In Henry v. Collins; the most recent Supreme Court

decision interpreting the New York Times rule, the Court

reversed per curiam the judgments obtained by a county

attorney and a chief of police in their libel actions against -

the petitioner. The —— had charged that his arrest . |

23. Ibid.

24. Brief for Appellee, pp. 67-69:

25. Ga. Code Ann., § 105-709(6). les

26. 1965, 380 U. S. 356. *

Sneeetae caamel

oP RE ogee

ne we pp Be ee rt ee

for detaching the peace was the result of ee diabolical

plot.’? The trial judge had charged ‘‘that malice does not -

consist therely of culpable recklessness or-a wilful and

wanton disregard of the rights and. interests of the ‘person

defamed. ’? The Supreme Court reversed since “the trial

judge’s instructions concerhing malice did not comply with

the New York Times rule. The trial of the: plaintiff ’s suit

and the decision of the Mississippi Supreme Court affirm-

ing the judgments occurred shortly before the Supreme

Court handed down Néw York Times Co. Like the present

' defendant, the defendant in Henry raised his first amend-

ment question by a motion for a new trial. However, the

defendant in Henry filed a motion for a directed verdict

at the -same: time: which also raised the first- amendment

' question. Both motions were overruled. Significant is the

fact that the constitutional questions raised by the motions

were raised for the first time after the close of the plain-

tiffs’ case.?”

Since the majority of this Court are not t of the opinion

that the judgment must be reversed, considerations of —

effective judicial administration do not require me to re-

view the evidence in. the present record to determine

whether it could constitutionally support a judgment for

the plaintiff should the plaintiff seek a new trial.”

In summary, I think the present diversity action’ was

brought by a public official for criticism of his official con-

duct; therefore, he was limited to an award of damages se

for a false statement made with ‘‘actual malice’’—that is,

with knowledge that. it was false or with reckless dis-

27. See Petition for Writ of Certiorari to the Supreme Court

of Mississippi, A econ we p.6. Henry v. Pearson and Henry

4 a were ‘together. See Henry v. Collins, 1965, 380

- New. York Times Co.. v. Sullivan, 1964, 376. U. S. 254,

A ee tO

46a - Append B

regard of whether it was false or not. The present ection

- was tried on a definitely stated theory which was funda-.

‘mentally and constitutionally deficient. The present action

should be tried on the theory set forth by the Supreme

Court’s decision supervening the district court’s judgment,

that is, New York Times Co. v: Sullivan. In such a situa-

tion, it has been held, as far back as 1937, that the duty

of the district court is to grant the motion for a new trial.”

wee

II. That part of the Judgment. awarding $400,000

. punitive damages violates the defendant’s rights

under the first, fifth and seventh amendments.

On the question so far discussed, that is, whether N ew

York Times v. Sullivam necessitates reversal of the judg-

ment in toto, I would concede that there is a ‘debatable

issue of-waiver on which I differ from the majority. The |

questions hereafter discussed had their genesis in the jury’s

verdict and are unquestionably preserved for review by

the defendant’s first motion for new trial (R., pp. 46-48).

As to the questions now to be considered, there can nee no |

issue of waiver.

The punitive damages, either 4 as found by the j jury or as

fixed by the court, are many times greater in amount than

the general damages. Under the court’s instructions to

the jury, the general damages included compensation ‘‘for

the mental anguish, pain, mortification, and humiliation he

has experienced as a r@8ult of the publication.”’ (R. 1354)

The punitive damages included. no element to which the

plaintiff was entitled by. way. of compensation, but, accord-

= 29. Sulzbacher v. Continental Cas. Co., 8 Cir. 1937, 88 F. 2d

It should be rioted. “that the learned district judge in the present -

case did not deny the {valved motion for a new trial,on the basis

t the defendant had “ the constitutional rights defined in

ew York Times Co., but, insteadconsidered the motion for new trial

"on its merits. [R. pp..1464-68.] | :

Appendin B. . sofa

ing to the court’s instruction to the jury, ‘‘the purpose of

‘punitive damages is to deter the defendant from a repe-

tition of. the offense and is a warning to others not to com-

mit a like offense. It is intended to protect the community

and has an expression of ethical indignation, although the

plaintiff receives the award.’? (R. 1356) The statute

which allows the jury to impose punitive damages is Georgia

' Code Annotated § 105-2002, which reads:

‘In every tort there may be aggravating circum-

— either in the act or the intention, and in that

_ event the jury. may .give additional damages, either to .

deter the wrongdoer from repeating the trespass or

as compensation for ‘the wounded feelings. of the

plaintiff.’’ :

In the present case ‘‘compensation for the wounded -

feelings of the plaintiff’? had been included in the general —

damages. [See R., p. 1354, quoted supra.] The trial court

expanded considerably on the alternative purpose ‘‘to deter

the wrongdoer from repeating the trespass’’; it included

also ‘‘a warning to others not to commit a like offense,’’

the protection of ‘‘the community,”’ and ‘‘an expression of

ethical indignation.’’ [See R., p. 1356, quoted supra.] The

jury was bound to observe the instructions of the court.

For the purpose of considering whether the jury’s award

' of punitive damages exceeded constitutional bounds; it is of

no moment that it may also have exceeded the limits set

_ by the statute. The court further instructed the jury. that,

**. . . if.you decide to award punitive damages, the sum.

30. According to the brief of the appellee, plaintiff (p. 86):

“It is apparent that the — of this Code section in cases of defama-

tion is to deter the defendant from republishing this one particular

libel at a later date. It does not prevent the defendant from publish-

roe other matter, whether thought libelous of the plaintiff or not.”

(Emphasis the appellee’s. )

Ee Ca OBO ee

8a Appendia B

_ you award need have no relationship to any amount- that

you may award' for general damages. It may be greater

or it may be less. That is a matter which rests in your sole

discretion.’’ [R., p.1356.] The jury could reasonably infer

- that no limit was placed on the exercise of its discretion.

If the defendant corporation had been tried under the

Georgia criminal libel statute,” it. might have been pun-

ished by a fine ‘‘not to exceed $1,000.’ # As it is, the de-

fendant stands subjected to a judgment. of $400,000 - for

punitive damages, four hundréd times the maximum fine

for criminal libel. Evidently, the $400,000 sufficed to ex-

press the trial judge’s sense of ‘‘ethical indignation’’ while

that of the jurors swelled to $3,000,000—3,000 times the

- Maximum fine which could have been imposed | in a criminal.

prosecution.

- Farther, in.a criminal proceeding, the defendant was

subject to no fine unless proved guilty beyond a reasonable

doubt, while here the judge charged the jury that Mays

the defendant, Curtis Publishing Company, has the burden

of proving by a preponderance of the evidence that the

statements contained in this article are true... .’ (R.,

p. 1347.)

I would not imply that the return of punitive damages

in the ordinary case is constitutionally suspect, for more

than a century ago the Supreme Court commented :

‘It is a well-established principle of the common

law, that in actions of trespass and all actions on the

case.for torts, a jury may inflict what are called ex-

emplary, punitive, or vindictive damages upon a de-

fendant, having in view the enormity of his offence

rather than the measure of compensation to the plain-

tiff. We are aware that the propriety of this doctrine

31. Ga. Code Ann. § 26-2101.

32. Ga. Code Ann. § 26-2101.

Appendia B 9a

_ has been questioned by some writers; but if repeated

judicial decisions for more than a century are to be

received as the best exposition of what the law is, the

. question will not admit of argument. By the common

as well as by statute law, men areooften punished for’

aggravated misconduct or lawless acts, by means of a

civil action, and the damages, inflicted by way of pen-

alty or punishment, given to the party injured.’ *

Day v. Woodworth, 1851,°54 U: 8. (13 How.) 362, 370-71.

. The theory of punitive damages involves a blending of

the interests of society in general with those of the ag-

grieved individual in particular.** There can be no seri- °

ous question but that the Georgia statute permitting ‘‘addi-

tional damages’’* is constitutional upon its face.

However, as that statute was applied by (1) the court’s

instructions. to the jury, (2) the jury’s verdict, and (3)

the reduced judgment ‘ultimately entered by the court on

motion for new trial, the award of punitive damages in the

present case is tantamount -to a criminal fine or penalty.

As said in the very recent case of United States v. Archie

Brown, U. S. Oct. Term, 1964, No. 399, decided June 7,

1965: | 7 ana ve

‘It would be archaic to limit the definition of ‘punish-

ment’ to ‘retribution.’ Punishment. serves several

purposes: retributive, rehabilitative, deterrent—and

preventive. One of the reasons society imprisons those

- convicted of crimes is to keep them from inflicting.

future harm, but that does not make imprisonment

any the less punishment.’’

33. Bryson v. Bramlett; Tenn. 1958, 321 S. W. 2d 555, 557:

: Margaret Ann Super Markets v. Dent, Fla. 1953, 64 So. 2d 291-92:

Pratt v. Duck, Tenn. Ct. App. 1945, 191 S. W. 2d 562, 564-65 ; Foster

v. Bourgeois, Tex. Civ. App? 1923, 253 S. W. 880, 885, aff’d 259

S. W. 917; 15 Am. Jur. Damages, § 266; 25 C. J. S. Damages, § 117.

_ ~. 34. Ga. Code Ann. § 105-2002, quoted supra, p. 47.

50a Appendiz B .

Similarly, in Trop v. b Nr 1958, 356 dase S. 86, 96, it

was said:

“In deciding whether or not a law is penal, this Court

has generally based its determination upon the pur-

pose of the statute.* If the statute imposes a disabil-

ity for the purpéses of punishment—that is, to, repri-

mand the wrongdoer, to deter others, etc.—it has been

considered penal.” But a statute has been considered

nonpenal if it imposes a disability, not to punish, but -

to accomplish some asad legitimate governmental pur-

\ pose.” .

“18. Of course, the severity of the disability imposed as well

as all the circumstances surrounding the legislative enactment is ©

relevant to this decision. See, generally, Wormuth, Legislative

Disqualifigations as Bills of Attainder, 4 Vand. L. Rev. 603,

608-610 ; 64 Yale L. J. 714, 722-724.

“{9) Bg. United States v. Lovett, supra [328 U. S. 303];

- Pierce v. Carskadon, 16 Wall. 234; Ex parte Garland, 4 Wall.

333; Cummings v. Missouri, 4 Wall. 277.

“20. E.g.,. Mahler v. Eby, 264 U.'S. 32; Hawker v. New —

York, 170 U. "S. 189 ; Davis v. Beason, 133 U. S. 333; =

v. Ramsey, 114 U. S. 15.”

Footnote 18 to the text just aati make clear that the |

enormity of the verdict and even of the final judgment are

relevant factors to be considered in determining whether

the punitive damages amount to‘a-criminal fine. I submit

that there is no difference in substance between the puni-

tive damages imposed in the present case and criminal pun-

ishment—an ex post facto punishment 400 times.as great’

as the defendant could have anticipated from the criminal

libel -statute,®> and imposed without any of the procedural

safeguards which are required 3 in criminal proceedings. by

due process.*

35. Ga. Code Ann. § 26-2101 ; compare art. 1, sec. 9, clause 3 of -

the Constitution.

36. .See amendment 5 to the Constitution.

ha |

ee ee ee

RRR Gatien rinse ener Des ee mt tee he Rt a me

/ f

Appendia B | - Sla.

If there should be any doubt that the award of $400,000 ~

in damages strictly punitive viglates the due process clause

for lack of the safeguards required in criminal proceedings,

there can be none, I submit, that it amounts to a prior

restraint upon freedom of the press. The rule as-an-

nounced in New York Times Co. v. Sullivan, 1964, 376 U. 8.

254, 277-78, has clear application to the- facts of this case:

‘*What a State may not constitutionally bring

about by means of a ¢riminal Statute is likewise be-

_ yond the reach of its civil law.of libel. The fear of

damage awards under a rule such as that invoked by

the Alabama courts here may be markedly more in-

- hibiting than the fear of prosecution under a criminal |

statute. See City of Chicago v. Tribune Co., 307 Il. /

595, 607, 139 N. W. 86; 90 (1923). Alabama, -for ex-/

_ ample, has a criminal libel law which subjects to prose-

cution ‘any person who speaks, writes, or prints of and

- concerning another any accusation falsely and mali-

ciously importing the commission by such person of

& felony, or any other indictable offense involving |

. Moral turpitude,’ and which allows as punishment upon

conviction a fine not exceeding $500 and @ prison sen-

tence of six months, Alabama Code, Tit. 14, § 350.

_ Presumably a person charged with violation of this

statute enjoys ordinary crininal-law safeguards such |

as the requirements of an indictment and of proof be-

yond a reasonable doubt. These safeguards are not

available to the defendant in a civil action. The judg-.

ment awarded in this case—without the need for any

_ proof of actual hecuniary loss—was one thousand times”

greater than the maximum fine provided by the Ala-

bama criminal statute, and one hundred timés greater

than that provided by the Sedition Act. _ And since

there is no double-jeopardy: limitation applicable

52a fs Appendia B

. civil lawsuits, this is not the only jedgnent that may —

‘be awarded against petitioners for the same publica-

tion. Whether or not a newspaper can survive a suc-

cession of such judgments, ‘the pall of fear and timidity -

imposed upon those who would give voice to ‘publié, >.

criticism is an atmosphere in which the First Amend-

_ ment freedoms cannot survive. -Plainly the Alabama

_ law of civil libel is ‘3 form of regulation that creates

hazards to protected freedoms markedly greater than ,

. those that atténd reliance upon the criminal law.’ Ban-

tam Books, Inc. v. Sullivan, 372 U. 'S..58, 70.°? *7 )

For yet another ‘reason the award 6f $3,000, 000 by. the

' jury, or of $400,000:by the court, as punitive damages is

- uncorstitutional ‘and void. There was no semblance of defi-

nite standard or controlling “guide to govern the award. -

Can any standard be more vague or arbitrary than ‘an

expression of ethical indignation’’ first on the part of the

" . jury and then on the part of the trial judge? It must be

remembered that stricter standards of permissible vagte-

nessare applicable to a rule having a potentially inhibiting

, effect on freedom of the press than are applicable to rules

” relating to less important subjects.”

. Still further, I submit-that the’ remittitur violates the os

- defendant’s rights under. the seventh amendment, The

trial judge concluded ‘that the award for punitive dam-

ages in this case was grossly excessive. It is the court’s

considered opinion that the maximum sum for punitive

' damages that should have been awarded against Curtis

. Publishing Company should be $400,000.00.” [R., p. 95]

37. See also Cantwell v. Connecticut, 1940, 310 U. S. 296, 306;

Near v. Minnesota, 1931, 283 U. S. 697, 713-14, 720-23.

38. Staub y. City of Baxley, 1958, 355 U. S. 313, 322.

39. Smith v. California, 1959, 361 U. S. 147, 151; Crunfp v.

etd Fee hee em. 368 U. S. 278, 287

T se i eel eds ee ee es a ei 7

— — - se w + EET SS

22 Tone

Peta hme > gg tote «

Bao we wert é

_ Appendia. B os 88a

In anogher part of his 0} inion on motion for new trial, the

district jadge commerited: ‘The award for punitive dam- |

ages in the case under “consideration is more than seven-

teen times larger than the highest award for punitive dam-

ages ever sustained.”’ [R., p. 93] The district judge’s.

opinion is silent as to the underlying reason for such a.

&raasly excessive verdict. The mafority opinion says that ~

**. 2\, the judge necessarily rejected the idea that this

verdict had been infected by such destructive elements [as.

_ passion or prejudice].’’ [Majority opinion, p. 28.] With 4)"

deference, I submit that that conclusion isnot based on the

record or on anything said by the trial judge. To the con-

trary, in colloquy with counsel, the judge may well a

' disclosed his view as to why the judgment was excessive: °. *

‘«Suppose the court should determine that probably a cer-

_ tain portion of the argument was improper, and therefore.

the verdict was excessive, and grant you a new trial on that

ground, and then it was tried again... .” IR., p. 1373.]

The majority of this Court labors under a different im-

pression. It several times refers to the defendant’s new

_ policy of ‘sophisticated muckraking’’ without benefit. of * Slee

what the defendant claimed that it meant by that expres- a

sion [R.,pp. 37-38, 1019.]:

“‘Defendant admits that beginning in ‘the latter

part of 1962, The Saturday Evening Post adopted an —~

editorial policy of ‘sophisticated muckraking’ in the

sense of printing the-truth about the grave dangers

facing the country, including the threat from outside

the country and. the deterioration of moral values

_ Within the country.”? [R., pp. 37-38.]°

It was, of course, for the jury to say whether the defend- _

ant’s explanation was true. In any event, I agree with

the majority that the. expression ‘‘was by itself more than

Mm. * Appendix B-

. ‘enough, to inflame the jury.”’ [Opinion, pp. 91-22.) If, as

is impliedly conceded, the jury was ‘‘inflamed,’’ then was

* not passion and prejudice the most probable cause for its

* gtossly excessive verdict? The majority continues, ‘*Coun-

Sel for Butts. conld only gild the lily.”” [Opinion, p. 22-]

‘I am tempted to facetiously. comment on their plentiful

supply of ‘‘gilt,’’ but, in a more serious wein, I must: express

my shock and surprise that this Court will leave standing

what amounts to severe criminal punishment of the defend- ©

ant in the face of the highly i improper and prejudicial “_—

ment of plaintiff’s counsel. . .

The majority says that “some of the argument was

invited . ,”’ but is not more specific as to the particular

argument of defendant’s counsel which amounted to an

‘invitation. However, the — ’s brief &. 93) refers

to the following: ; .

‘¢Mr. Cody’s exact words were: (R. 1967) .

‘¢ <The point I want to make is that a man [plain-

tiff] that will go to one of yéur public officials

[Comptroller General], bet enough ‘to start into

- this business and a lot of other businesses while

he is charged with the duty Athletic Director,

_ but it is worse, in order to o the license to

do that, to misrepresent- your financial condition.”

(Emphasis added).’’

etal.

In response, there is attached to appellant’s reply brief as |

Exhibits A and B, the affidavit of Mr..Cody supported by

the affidavit of Rufus.L. Hixon, the official court reporter. .

' The court reporter’s affidavit is to the effect that ‘after

: . deponent had examined his stenotype notes, he telephoned

Mr. Bondurant to state that the word ‘bad’ had been used

by ae. Cosy in his closing: or but that the —

: we AE eGR oT te Wem

- Appendia B 55a

. ‘or .

‘bet’ had been erroneously transcribéd.’? [Exhibit B, p.

_ 8a, Appellant's Repl} Brief.] - eno os ee ee

Ih addition;I-would note that in beginning his argu-_

ment, con for the defendant referred to his attachment

to the Unfversity of Georgia and to the fact that the tri

judge, opposing counsel, and he had received their training

in that institution.’ The arguments of counsel are set forth

‘in the record (pp. 1257-1341). They do not, in my opinion, .

disclose any invitation or provovation to justify or excuse -

the improper and inflammatory argument of plaintiff’s

counsel. The following excerpts are only samples of\the .

objectionable parts of that argument, but, I submit, nat

they speak so loudly as not to require comment: -

_ .“Sinee he talked to you about the University of

Georgia and wien. he’ was there, I think I likewise

have a right to mention to you briefly that I probably

‘have known Wally Butts longer than any man in this -

ease. I was at Mercer University with Wally Butts) ¢@

- when he played end on the football team there. He

was in some respects a small man in stature, but he _

had more determination sfid more power to win than

any man that I have ever: seen in my life. I would

not ‘stand before you in this case today arguing in

his behalf if I thought that Wally Butts would not tell ~

you the truth when he raises his hand on this stand

and swears to Almighty God that what he is going to .

tell you is the truth. [R., p. 1289.] ary > ;

rT; , f

“‘Somebody has got to stop them. There is no

_ law against it, and the only way that type of, as I call |

.. it, yellow journalism can be. stopped is to let the Satur-

| » day Evening Post know ‘that it is not going to get _

away with it today, tomorrow, or ariy more hereafter, -

( >

°. Appendia B

and the only way that lesson can be brought home to

- them, Gentlemen, is to hit them where it hurts them,

and the only thing they kn@W is money. “Fhey write -

about human beings; they kill him, his wife, his three .

. lovely daughters. What do they care? “They have got

_ money; getting money for it. Re =. |

" «T am looking to you for my protection. ‘ Heavens

- (sic) knows, if you let them out of this case for five

- million dollars or less, and boy, it’s been worth it to

them, I may he next, because they are not going to stop

with that. You may be next; my wife; my children;

_. yourself. We have got to stop them now, and you are

the only twelve in thg world that can stop them. [R.,

1319.] :

éé .. .

° . - .

“T say, Gentlemen, this is the time we have got to

get them. A hundred million dollars in advertising,

would ten percent of that be fair to Wallace Butts for.

what they have done to him? Would a fifty cent assess-

‘mient on each of the twenty-three million issues which

they wrote about him there, would that be a strain or

@ burden on them? I think it would teach “them that

we don’t have'that kind of journalism down here, and

we don’t want it down here, and we don’t want it to

spread from 666 Fifth Avenue any further than that

building right now. n ’

My time is up,.I have done the best Ian. I have

lived in agony with this man since I got the first notice

- that this was what was going to happen, this Post

article was coming out. I have seen him deteriorating

r. i

. ., 7

SE ee eee ee Ce

Appendia B 57a,

' @ven since it came out, dnd I have lived in agony. along .

with him, ahd it may be that the personal first-hand

knowledge that I have had since almost living with

him and his family every day, I may have said some

.things or done ‘some things or conducted myself in |

‘some manner that was displeasing to you.. All I can |

say, I have done my best, and if I have done, any of

those things, don hold it against. Wallace Butts.

‘*You know, one of these days, like evéryone else

must tome to, Wallace Butts is going to pass on. No

one can bother him then. The Saturday Evening Post

can’t get at him then. And unless I miss my guess,

~ They will put Wallace Butts in a red coffin with a black

lid, and he wil have a football in his hands, and his

epitaph Will read something like this: ‘Glory, Glory to

: old Georgia.*’’ [R., pp. 1321-22.]

'. If this dissent serves no other purpose, it will at least

. preserve for posterity the colorful peroration last quoted.

Seriously, it seems to me that ‘‘the public interest requires

_ that the court of its own motion, as is its power and duty,

~ protect suitors in their right to a verdict uninfluenced by

the ‘appeals of: counsel to passion or prejudice:’’? N. Y.

_ Central RR. Co. v. Johnson, 1929, 279°U. §. 310, 318. That

_ would be true even if the_prejudicial argument had not

been followed by a grossly excessive verdict. I submit - ——

that the $3,000,000 punitive damage verdict was. so clearly

the result of passion and Prejudice that it could not be - *

cated by remittitur.° te

' It is difficult in any case to reconcile. the ‘practice of |

remittitur with the constitutional right of a defendant to

\ 40. Minneapolis, St. P. & S. S. M. Ry. Co. v. Moquin, 1931, 283

U. S. 520; Brabham v. State of Missssipgh, 5 Cir. 1938, 96 F. 2d 210;

- Ford Motor Co, v. Mahone, 4 Cir. 1953, 205 F. 2d 267 ; National

‘Surety Co. v. Jean, 6 Cir. 1932, 61 F. 2d 197. es

Appenii B : ae.

» -

trial by j jury. 41 The logic of Professor Carlin's article on.

‘Remittiturs and Additurs (1942), 49 W. Va. LQ 1, 17, 18,

quoted in 6 Moore F. P. (2d ed.) — 39; seems to me un--

answerable.* ; »

That logic is peculiarly applicable to the circumstances

of this case, where only punitive damages are reduced and ~

there is no rule or sfandard by ‘which the judge . can sep-.

arate any good part.of the verdict from the bad. In effect,

the remittitur from $3,000,000 fo $400,000 represents noth-

ing more specific than the difference between the jury s

"and the judge’s sense of “ethicahindignation. > The j jury’s -

: verdict cannot be recognized in the final judgment.” _

I appreciate that in the federal cou¥ts the right to a .

jury trial is to be determined as a matter of federal law

in diversity as well as other actions.** It i is, however, -both

* interesting and instructive to refer to Georgia. Jaw. -The

- statute permitting the award of punitive damages,“ says _.

that ‘2... . the jury may give additional damages. . . .””

(Emphasis supplied.) Another statute prescribes: “The

-~—question of damages being one for the j jury, the court should _

not interfere, unless the damages are either so small or so

excessive as to justify the inference of gross mistake or

undue bias.’ Ga. Codé Ann. § 105-2015.

It has long been the law of Georgia that “the trial

judge has no power to order that, as a condition. to the

~ 41, Sée Dimick v. Schiedt, 1935, 293 U. S. 474,-482-87.

42. See.6 Moore F. P. (2d ed.) 59.05(3) ; 3 arron & Holtzof

"[1305.1; 30 Am. Jur. New, Trial, §§ 209,-et seq.; 66 C. J. S

Trial, §§ 209, et seq.

43. Simler v. Conner, 1963, 372 U. S. 221-22; Ammons v. The

Franklin Life Ins. Co., 5 Cir., No. 21418, decided June 28, 1965.

Nonetheless, it does seem anomalous for the federal courts to require

the state courts to accord the strictest guaranty of jury trial when.

indicated by a federal statute (e¢.g., the Federal Employers’ Liability

Act), and then, i in a ‘diversity case to refuse to recognize the require-

ment of jury trial imposed by a state statute. Z

44, Ga. Code Ann. § 105-2002, quoted supra p: 47.

7 ’ F in

yer ve PPLE NS LPL ELISE ON SO A - 0 RA WRG a, AE RES «

= _ <~e eames - den ~anagatennth eh aot - ~ —_

ee i

, ’

i etictinavahintnidssithdoeis):inisse Deine ites

Appendia B_-.: ‘i 59a

‘refusal of a how trial, a portion of oe verdict Shall be

. written off as excessive, except where from the application

of the law to the évidence, the excess ‘can be accurately

ascertained.” Syllabus 4 by the Court, Central of Ga. Ry. -

' Co. v. Perkerson, - 1901, 112 Ga. 923, 38 S. E. 365. That

action was for. the \death of a railroad enfployee. ° The

plaintiff recovered a verdict for $10,833.33. The trial court

ordered ‘a new trial conditioned on the plaintiff’s consent

to a remittitur of the part of the verdict. in excess. of *

$8,500.00, and, upon: plaintiff’s consent, entered judgment —

for that amount. On defendant ’s appeal, the ‘Supreme

Court of Georgia. reviewed the: authorities at length and

reversed. A part of its opinion reads:

‘“‘It is manifest that the verdict. for $8,500 was ren-

dered by the judge, and not by the jury, and it is impos-

sible to ascertain from the evidence-in the case how he

« arrived at that exact amount. “It is evident from his, -

order that he was dissatisfied with the verdict, as, to.

the amount of damages found, and that, if he had not

———-thought he had the power of remitting a portion: of the.

damages, he would. have set the verdict aside and

_ granted a new trial upon the ground that the verdict

was excessive. The judge may have the power to de-

_ termine that a verdict is grossly excessive, and for -

that cause to order it set aside, and yet have no power

‘to fix the exact amount for which it Should stand. ‘The

power to control does not include the_power to find.

Like the executive veto, it arrests, but does not by its

. exercise bestow the ~~ to enact.’ ’’

vane more pertinent i is a very recent. ‘case where: the

trial court, with: plaintiff’s ‘consent, reduced the exemplary

or punitive damages awarded by the jury from $4,000 to

’ $1,500. The conditional —— for new _ was re-

| Appendia B

_ versed with directions that ‘a new trial ae > granted. ‘The

_ Court said: ne ry

" Si determining ginitive or exemplary damages it

‘mathematical calculation; ‘and in every such case, the

this finding should not have exceeded a certain sum, — |

amount of the finding must. be largely in the power of

the jury, who have no other guide but their enlight-

ened consciences. To say, therefore, i in such cases that

is to invade their pequliar province, and to assume

their functions; and to require a portion of the amount

so found by them to be remitted, and the balance to

stand as their verdict, seems to us unauthorized either

by the words of the law, or by the precedents and prac-

tice in such cases.? Savannah, Florida & Western Ry. -

v. Harper, 70 Ga. 119, 123-124 — many other |

authorities]. —

‘Tt is our wish to make it clear that nothing’ held

’ here or in any of the authorities cited is subject to the

inference that a trial judge is restricted in the exercise

.. of his exclusive discretion to grant or deny a motion

_ for new trial’on the general grounds. We do emphasize ~

"that where the determining of’ the amount: of a par-

-ticular class of damages lies exclusively with the jury,

the trial court must either grant or deny a new trial.

on the basis of the jury’s award. The trial judge can-

not condition the exercise of his discretion in granting

or denying a new trial on an acceptance by the a aaa v.

of a different sum selected by him.’’ -

City Motor idan v. mine Ga. App. 19 138 Ss. E.

2d 925. 926-27. .

» ‘The seventh amendment asincebibione a right of trial by

jury to the defendant as well as to the plaintiff. I cannot

SAS sates Aaa Links elie nhaattsinlaniesn PY abe

~ SN Apipendia BO Cla:

, esca oe the: conviction t ‘That by the remittitur in this case |

that right has been denied to the defendant. : |

“Both because New York.’Times v. Sullivan is: convine..

ing that this case was tried upon fundamentally erroneous

principles of law, and because the enormous. award of

, punitive damages and the remittitur violate the * defend-

ant de con, itutional rights, I would reverse the judgment ~

- of district court. I therefore —— dissent... .

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; OPINION OF THE UNITED. STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT ON PETI-

TION FOR REHEARING. “

IN THR” 7 °

UNITED STATES COURT OF APPEALS ,

For THE Firre Crovrr.

— >)

~y No. 21491. ss!

CURTIS PUBLISHING COMPANY,

, Appellant-A ppellee,

WALLACE BUTTS, val

Appellee-A nt.

(AnpD Eyres TrTLE)

Apprats From tae Unrrep States District Court For tHE

7 Nortueen Distaror or Grorcmu. *

(October 1,

ON PETITION FOR REHEARING.

Before Rives and Brown, Circuit Judges, and Giviane,

District Judge.

_ Pzr Curt: As Curtis’ petition for rehearing asserts

that the waiver found by us is based on ‘‘alfeged facts,

_ most of which are obtside the record’’, and upon ‘‘unsup-

ported statements in Butts’ brief, which for the most part

are not true’’, we deem additional comment appropriate.

Appendia Bo

The burden of Curtis’ brief, elaborated in the petition

for rehearing, is that Times came like a bolt out of the

blue, and no one either. knew of, or could anticipate, that

a state-created libel ‘damage action was subject to or could

. ‘be controlled by First Amendment freedom of speech con-

stitutional limitations. Therefore, the argument runs, until

_ Times there was no reason to assert the constitutional claim,

and consequently it should not be held to the usual appellate

consequence of failing properly to preserve the point.

Obviously this Court is not required to accept the mere

assertions of Curtis. This Court has the duty of determin-

ing whether this contention of Curtis was well founded. .

While this partakes of factual evaluation in 4 sense, the

question of waiver is a law problem—i.e., whether skilled

counsel would reasonably think the contention to be plaus-

ible. Since Curtis did not seek to raise the constitutional

to'look to the sources discussed in our original opinion in

order to ascertgi# the pertinent facts. Until the filing by

Curtis of its ion for rehearing, the statements in Butts’

-brief, referred to by Curtis, had not really been disputed.

And now, after having given full consideration to the affi-

davits and.to all other matters presently submitted by

Curtis, we are still of the firm opinion that when all-of the.

acts and conduct of Curtis’ attorneys are tested in the

light of reason, Curtis cannot sustain the proposition that

its counsel were ignorant of a constitutional claim so asto

be totally excused for the complete absence of ayy timely —

assertion of it.

To its petition for rehearing, Curtis attaches affidavits.

made by Philip H. Strubing, whose Philadelphia, Penn-

sylvania law firm of Pepper, Hamilton & Scheetz, is general

counsel for Curtis; by T. Eric Embry, whose Birmingham,

Alabama law firm represented the oer York Times Com-

- 64a Appendia B res

‘pany in the case brought against it by Sullivan (Times

ease), and also represented Curtis in the related libel

“eases brought against it in the United States District Court

by Coach Paul Bryant; ' and by Welborn B. Cody, who was

‘ lead trial counsel for Curtié in the Butts case. In general,

the affidavits assert that Mr. Embry and his partner,

Roderick Beddow, Jr., attended the trial of this Butts case

as spectators only, were not consulted concerning trial

strategy, and did not advise Mr.. Cody concerning the con-

stitional questions they had raised in Times. Mr. Cody

stated that ‘“‘he was not aware of the constitutional issues

~ being urged in (the Times) case.” :

There is no dispute that the lawyers who sat together

at the Curtis counsel table during the Butts trial were

' representing Curtis either in this case or in the related

' Bryant libel suits pending in Alamaba, so presumably they |

were all on Curtis’ payroll. Unusual as it ‘would be for

them not to consult with one another concerning strategy

and tactics during the two-week trial; we accept the state- .

ment that neither Mr. Embry nor Mr. Beddow informed Mr.

Cody of ‘the constitutional questions being raised in the

Times case.

7 But what about Mr. Strubingt In his affidavit he stated

that he participated actively in the preparation of the

Butts case for trial, and that he also worked actively with |

Mr. Embry in the preparation of the related Bryant cases.

He is-also on the brief in our case and participated in the

arguments. .

Butts’ response to the petition for rehearing refers us

to the records of this Court, of which, of course, we may

also take judicial notice. In Cause No. 21,152, The Curtis

Publishing Company v. Honorable H. H. Grooms, United

1. Civil Actions Nos. 63-2-W and 63-166, brought in the

Western and Southern Divisions respectively, of the Northern Dis-

trict of Alabama.‘

——— ee ee ee

| Appendia B : | 65a

States District Judge for the Northern District of Ala-

bama Curtis sought a writ of mandamus to compel Judge

Grooms to :vacate his orders denying Curtis’ motion for

change of venue. That record reflects that on February 26, .

1963 (one month before the Butts suit was filed) Mr. Strub-

ing’s law firm, together with the firm of which Mr. Embry

and Mr. Beddow are members, signed and filed in the

Alabama District Court a motion to dismiss the related

libel action instituted by Bryant, on the grounds,. among

others, that: | a hy ae cd

‘*To subject this defendant to liability in the cir-

cumstances complained of would abridge the freedom -

. Of speech and of press in violation of the First Amend-

ment to the Constitution of the United States, made

_ \ applicable-to the states by the Fourteenth Amendment

‘to the Constitution of the United States. . .

‘*To-subject this defendant to liability in the cir-.

cumstances complained of would be repugnant to the |

. due process clause of the Fourtenth Amendment to.

‘the Constiution of the United States re. a

In a later suit filed against Curtis by Bryant the same

two law firms made identical content?6ns in a motion to

dismiss signed and filed by Gach of them in the. District

Court on April 30, 1963, still more than three months

before the trial of the Butts case. . s

If the First and Fourteenth Amendments were thought

by Mr. Strubing and his law firm to be valid grounds for

dismissal of the related Bryant cases in Alabama, wliy

did they not assert them in the Butts case? By his own

statement Mr. Strubing was an active participant in all

three cases, so he certainly should lave known what the

rights of Curtis were. Although he now says that he was

‘not aware of the constitutional defenses articulated by

&s .

66a “Appendia B

Times until that case was decided by the ane Court

some six months after the,trial of the Butts case, neither

he nor his local counsel (Mr. Embry) considered a final

decision in Times—or for that matter any oth@ case—

a necessary prelude to raising in the related Bryant cases,

the constitutional claim previously asserted by Mr. Embry

in Times? And for good reason, at least ever-since June

1962 when those who wished. could see the handwritin

_ on the wall, certainly as the moving finger followed -

voice of Mr. Justice’Black’s celebrated ‘‘First Amentment

. *Absolutes’; A Public Interview’’?

- 2. That these constitutional claims were ‘well preserved by these

counsel in: Times without the learning which was to come several years

later through A words of the Times opinion is recognized by the

Court itself : (Alabama trial) judge rejected petitioner’s con-

tention that his tro Se abridged the freedoms of speech and of the

press that are guaranteed by the First and Fourteenth Amendments. 14

376 U. S. 254, 263.

The Alabama Supreme Court also recognizéd the assertion ‘of

_ these constitutional claims for it “rejected petitioner’s constitutional

contentions with the brief sjatements that “the First Amendment of

the U. S. -Constitution not protect libelous publications dite iting

14 So. 2d at 40.” 376.U. S254, 264. ;

3.-Justice Black and First Amendment “Absolutes” ; A Public

‘Interview, Edmond Cahn and Mr. Justice Hugo L. Black, 37 NYU

Law Review 549 (June 1962). The background of the interview was: ~

_ the Justice’s lecture entitled “the Bill of. Rights”, delivered at the.

New York University School of Law, February 17, 1960, publics.

at 35 NYU Law Review 865 (1960). See, e.g.:

“CAHN: .Do you make an exception in freedom of speech

* and ‘press for the law of defamation? That is, are you willing to

allow people to sue for damagés when they are subjected to libel

or slander?

“JUSTICE BLACK: My view of the First Amendment

* * * is that it said Congress should pass none of these kinds

of laws. * * * I have no doubt myself that the provision * * *

intended that there should be no libel or defamation law in the

United States under. the United States Government, just ab-

“ solutely none so far as I am concerned: * * # #” °(557)

ee.

- “My belief is that the First Amendueit: was: made applicable

‘to the states by the Fourteenth a, So mat See, so far as my

_ Appendia BO 67a

- Granted that the extra-judicial statements of a single —

. Justice do not an opinion make,‘ the Court itself in Times

treats this newly announced rule as a natural development

of the constitutional propositions long recognized by its

extensive writings on First’ Amendment freedom of speech

rights. “Thus, it emphasized. that the ‘‘general proposi-

tion that freedom of expression upon public questions is, |

secured by the First Amendment has long been settled ‘by

our detisions.’’ 376 U. S. 254, 269. _ Announcing its rule,

it referred to the ‘‘oft-cited statement of a like rule * * *

adopted by a number of state courts * * * found-in the

Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98

P. 281 (1908) ’*—a decision theri nearly half a century old.

-__ Whatever may have been the reasons for invoking the

First Amendment, claim in the “Alabama suits while re-

maining silent in Georgia, Curtis cannot sustain the propo-

sition that it was unaware that a defendant in a libel action

might assert the constitutional claim as a defense... Coun-

sel for Butts make a persnasive suggestion thatCurtis ”

> =\ ™ *

own view is concerned, as to what’ should be and what EF hope‘will

. Sometime be the ‘constitutional doctrine that just as it was not .

intended to authorize damage suits for mere words as distin-

guished from conduct as far as the Federal Government is con-

- cerned, the same rule should apply to the ‘states.

“* ee & . ces ;

“I am for the First Amendment from the first word to the

last. I believe it means what it says, and“it Says to me, ‘* * *

- Goverriment shall’ not attempt to control the -ideas a man has.

* * * Government shall not abridge freedom of the } ress or

speech. It shall let anyone talk in this country.” * * * Let them

talk! Inthe American way, we will answer them.” (563)

4. They were shortly to be-announced ex cathedra in his con-

curring opinion in Times, 876 U. S. 254, 293, joined by Mr. Justice

* Douglas and substantially echoed by .Mr. Justice Goldberg” (with

. Justice Douglas), 376 U. S. 254, 297. aw

5. See the extended annotations, The ray Court and the

ie of Free Speech and Press, 11 L.Ed. 2d 1 16-1175 ; 2 L. Ed. 2d

1706; 93 L. Ed. 1151. | “ae

® -

® .” »

68a its Appendia B.

elected to defend this case.on its plea of justification, rather

than raise the jurisdictional, constitutional and other af- ~

firmative defenses * it had raised in the Alabama Bryant

eases, in order to get the right to open and close the

._arguments.-° " . 7 ae

Nor, as suggested in Judge Rives’ dissenting: opinion

on denial of reheariyg, do we consider that our action is at .

all inconsistent with the pringiple of law expressed for the

Court by Judge Wisdom in Commissioner of I nternal Reve-

nue v.. Chase Manhattan Bank, 5.Cir., 1958, 259 F. 2d 231,

238, cert. denied, 359 UM. 913." |

— 7

; er fT

oe eee ee ee ee ee

- 6. These would include the conditional privilegt recognized by

§ 105-709(6) of the Georgia Code concerning published statements,

relating to the “acts of public men in their public capacity”. See Note |

_ 20, 376 U. S. 254 at 280. . 2

-7. Actually, in this tax case the theory later developed for the

first time in this court had been raised in the bank’s petition filed

_ inthe lower court and agreed upon by both parties at the trial. The

Court, in deciding to consider the development of the theory, stated

that the “tax liability as to the testamentary trust depends on whether.

Daniel’s will put Marie to an election. The question is in the case.

A just determination of the appeal requires us to bo it.” (Em-

phasis supplied). This case involved the gift tax liability under three

trusts created by the decedent, “Daniel”, one of which was a testa-

mentary trust 0 his residuary estate from which his wife, Marie, was

‘to receive the income for life, the remainder to be divided among

Daniel’s descendants. In the Tax Court, the bank’s petition stated

that “the estate was still under administration. and that ‘no deter- |

mination has yet been made as to-whether or not the said Marie

‘Elizabeth Moran has elected to take under the will’ . . . that

_ Marie’s motive ‘in not taking against the will was to benefit herself’ ”.

At the trial the Commissioner and the bank agreed to assume that

-Daniel’s will put Marie to an election ‘and that Marie’s receipt of. s

income from the trust was sufficient to show that she had elected

to take under. the will. They differed only as to whether the effect . *

of the election was that she had made a taxable gift. The Tax Court *

held that Darttel’s will pat Marie to an election and that Marie’s

On appeal, for the first time in the case, the defendant made the

— that Daniel’s will did not purport to dispose of Marie’s‘share .

. therefore she was not put to an election, thereby denying that

Marie transferred her share of the community estate to the trust. In

answer to the issioner’s objection to the bank’s new argument .

. a

s ny

nny _

. - _ Appendia B ; | 69a

In that case,the legal theories developed in this Court

for the first time could be fairly disposed of on the record,

and the opposing party was not prejudiced by the use of

other theories.* However, here Curtifeeks a reversal

so that a:new record based on different theories may -be

~made at another trial. The wholesome desire ‘‘to secure

the just * ‘*-* determination of every action ”’, neither dis-

that Marie was not put.to an election; aiid its contention that the tax- .

payer is not at liberty to urge as a ground’ for reversal a/ point, not

raised in the court below, the court states that “indeed,/. . . the

taxpayer invited error ... . worse, the invitation was accepted. But

an appellant has no vested right in an opponent’s error of law in the

lower court—especially when the protesting appellant. is the Commis-

sioner of Internal’ Revenue . . . (who) owes a duty to all taxpayers

- to see that the tax law is applied justly. . . . Federal pri

cedure is‘ moving away from What: Pound calls ‘the sporting theory’ of

justice’, Wigmore the ‘instinct of Kiving the game fair play’, and \

Arthur Vanderbilt’ the theory of procedure as ‘a contest between two

legal gladiators’. We are a court ‘to secure the just * * * determina-

tion of every action’. Rule 1, Federal Rules of Civil Procedure, 28 —

U. S. C. A. Daniel’s will is in the record and speaks for itself.

- “(W)here, as here, the case below was tried, not upon any misappre-

hension of the facts, but upon a misapprehension of the effects of those

facts in law, appellant may not ‘be prevente¢ from pressing here for “

the application, to the proven facts, of the correct principles of law.’

, “We see no reason why we should make what we think would

‘be an erroneous decision, because the applicable law was not insisted

upon by one of the. parties.’ ” :

See also Jack Ammann Photogrammetric Engineers, Inc. v. Com- -

missionér of Internal Revenue, (5th Cir. 1965) 341 F. 2d 466, a tax

case citing Commissioner. of Internal Revenue. v. Chase Manhattan

Bank, in determining that since legal theories_weré there being urged

“that can be fairly disposed of on the record befdre us. We do not

consider that we should refuse té considef them rely because they

were not urged in the Tax Court.”

8. See Glavic v. Beechie, (5th Cir. 1964) 340 F. 2d 91. The

majority refused to consider a question not presented for determina-

_ Stated, in opposing this decision, that he “would allow either party

oh appeal to advance a new. theory or to change his theory of the

case—if:*(1) all the relevant evidence is before the court, (2) the

opposing party has had adequate time.to brief the point,.and (3) the

' Opposing party is not prejudic(ed) by not bea introduced evidence

— Se

below that would have militated against the

idity or effect of the

new theory.” tei | f :

ns i

, ie

Ma * Pro Appendiz B

‘penses with ‘the eben of procedure, nor forecloses the ap- e

- plicability of the doctrine of waiver when all-of the ele-

ments which constitute-that doctrine are present, as in the

meas case.

s to all other. coittentions it in the petition for rchiering |

and supporting brief, we adhere wi t further-comment.

to the holdings in our original opinion: Finding no heag i

see Rule 25(a) of this Court, the petition for rehearihg is

a. | >

’ Petition DeEnIeED.

+0 s

—_ Pd -

aa La -

‘

° ”

wo .

‘Rives, Circuit Judge, Disiiting:

Sn 3

_The majority undertakes to bolster: its holding that —

Curtis has clearly waived any right it might have had to

challenge the verdict’and judgment on any of the constitu-

‘tional grounds asserted in. Times,”’ 1 -

_ on

: Paks i et

> sgeniied ' in my earlier dissent,? that is fot. true

as to the holding in Times that a state law of civti libel

which sustains-the imposition of extremely large awards

_ of damages i in libel actions may constitute a prior restraint °

on freedom of expression forbidden by the First and Four-

‘teenth Amendments. New York: >Times Co. v. ‘Sullivan,

1964, 376 U: S. 254, 277, 278: |

’ The enérmous amount of the verdict in the present

case could not have been anticipated. Curtis raised the

: 1, Slip Opinion, pp. 17 and 18.

2. Slip Opinion, PP: 46, 47, 52 and 53.

j - ‘

Appendia B a Ta.

point seasonably as a ground for its first motion for new

“-- ... ‘es . 8

- In ruling on that motion the district dourt recognized

_ that: “As far as this Court can ascertain, the largest

award ever sustained for punitive damages by the Appel-

late Courts was an award of $175,000.00 in the case of

Reynolds v.. Pegler, D. C., 123 F. Supp. 36; 2 Cir), 223 -

. F.2d 429." 295 F. Supp. 916, at 919. Nonetheless, ‘after

the plaintiff filed his remittitur, the district court entered

judgment against Curtis for $400,000. punitive damages

plus $60,000 general damages, or a total of $460,000. Since

that time, Curtis has lost no opportunity to insist that the

$460,000 award, if sustained, is so large as to constitute a

- prior restraint upon freedom of the press within the rule _

announced in the Times decision. On that issue, there is,

I submit, no debatable question of waiver. For reasons

expressed. in my prior dissent,‘ I would rule with Curtis

on that issue. f - ie

As to the punitive damage award, the section of the

| Georgia Code quoted in my earlier dissent ® and the oral

. charge to the jury,*® make clear that the very purpose of

~- —* “Ce) The amount of punjtive damagés, in the circumstances of

. from a repetition af the’o

S case, was so ‘excessive as to violate and abridge through excessive-

hess alone, the guarantees of free speech and press.” (Record, pp.

46, 47.) .

4. Slip Opinion, pp. 51, 52 and 53.

5. Section 105-2002, Georgia Code Annotated. ots

6. “The purpose of = damages is to deter the defendant

ense-and is a warning to others not to com-

mit a like offense. ‘It is intended to protect the community and has an

€xpression of ethical indignation, although the plaintiff receives the

award.” 7 ~~ ; ae

72a, ao 7 _ Appendia B

punitive damages is to act as a deterrent to future conduct,

of expression. When that deterrent or restraint assumes —

proportions of the jury’s verdict, $3,000,000, or even of

the award made by the district court, $400,000, I submit

~ that it is forbidden by the First and Fourteenth Amend-

ments." , . |

‘The part of the Times opinion relating to prior re-

straints on freedom of expression was certainly not ‘‘new

law.’”? Nor was that part of the opinion limited to public

officials. Clearly, I submit, whether Butts was a public

official or not, the enormous award of damages must be

set aside. — a

: a

The specific holding in Times, which had not thereto-

fore been generally recognized, was that a State cannot

under the First and Fourteenth Amendments award dam- _

ages to a public official for defamatory falsehood relating

to his official conduct unless he proves ‘‘actual nialice’”’—_

that the statement was made with knowledge of its falsity

or with reckless disregard of whether it was true or false.

It was that principle to which I referred in my earlier dis-

sent,* when I said ‘‘it’ was not even enunciated. by the

counsel who petitioned for certiorari in the New Y ork —

’ Times Co. decision.’’® Now on petition for rehearing,

counsel makes affidavit that: ‘‘The requirement of the

New York Times case that general damages could not be

’ awarded without the necessity of proof of. actual malice

* 7. See Bantam Books, Ine. v. Sullivan, 1963, 372 U. S. 58, 70,

cited in Times (376 U. S. at 278). |

8. Slip Opinion, p.° 42.

- 9, An per which I ‘had reached from an examination of the

petition and briefs on certiorari. pe

““Appendia B i 73a ™

in the Alabama innit nor in the petition for’ certiorari to -

the United States Supreme Court.”’

In order properly to object to the district court’s

instructions allowing recovery of general damages without

proof of malice, and recovery of. punitive damages on a

. definition of malice at variance with that prescribed in

_ Times, counsel must have anticipated _ ies holding

of the Times decision.

Judge Morgan, the District Judge in the present he

recognized, at least impliedly, that Curtis had not. waived

that constitutional right by its failure to insist upon it at

the trial, ‘when, in denying the motion for new trial under

_- Rule 60(b), Fed. R. Civ. P., he considered and ruled on the

* -defense on its merits. Butts v.. Curtis Publishing Co.,

N: D. Ga. 1964, 242 F. Supp. 390.

Based largely on facts dehors the present record, the

majority held that: Curtis’ trial counsel had knowingly and

intentionally waivad the constitutional protections afforded

po. by the Times case, ‘by failing to. raise them at the trial.

In response to that holding; three of Curtis’ attorneys have

filed with this Court their sworn affidavits.". Now the

majority goes still further ‘beyond the present record D and~- :

considers another case shown by the records of this Court —

but of which Judge Morgan could not have taken judicial

a . notice when he considered and ruled on Curtis’ section °

60(b) motion. With deference, I submit that it is the func-

a . tion of this Court simply to review the ruling of the dis-

trict court-on the record before that court.

If, however, we -are to resort to wiidiones outside the

record ‘and to bolster our judicial notice from records i in

eh ESTE

i“)

stent EAD OKE EE AD LBAT AME eA

10. “No party may assign as ‘error the giving or the failure to .

give an instruction unless he objects thereto before the jury ‘retires

* to consider its verdict, stating distinctly the matter to which he objects

~ and the grounds of his objection.” Rule 51, Fed. R. Civ. P.

11. Ethically permissible “when essential to the ends of justice. ”

A. B. A. Canons of Prof. Ethics No. 91. —

— ss a

«&

74a _ Appendia B

other cases, those extraneous matters do not impugn the

integrity and veracity of Curtis’ trial counsel. It seems

clear to me that, at the time of trial, counsel had no notice

of the specific holding thereafter made in Times. It is.

impossible for me to believe that, if counsel had any such

- notice, they would have knowingly and intentionally waived

‘- the specific constitutional protection afforded by the Times

case ‘‘in order to get the right to open and close the argu-

Ments,’’ as suggested in-the majority opinion:

It is teo much*to hold counsel to the duty-of antici-

pating the specific holding of Times, because of general as-

,Sertions of First Amendment defenses in other cases, or . .

even because of Mr. Justice Black’s view that the First -

Amendment “. . . intended ‘there should be no libel or

defamation law in. the. United States under the United

States Government, just absolutely none so far as I.am

concerned. . . .’?” The majority paints with such a .

broad brush as to require the assertion of a First Amend-

ment defense in. every libel or defamation case hereafter

litigated. = ® . : .

* With deference, I submit that it is the outworn sport-

_ ing theory of justice * which leads the majority to convert

this appeal into an unseemly trial of Curtis’ lawyers. The

-function of this Court is not to decide a contest, but to ad- -

minister justice. Curtis, not its lawyers, stands mulcted

in damages to the extent of $460,000 as the result of a |

trial conducted on a fundamentally and constitutionally de-

ficient theory of law. wos .

12. Quoted in footnote 3 to the majority opjrffon’on rehearing.

13. “Federal procedure is moving away from what Pound calls

‘the sporting theory of justice,’ bib aes ‘instinct of giving the

game fair play,’ and Arthur Vanderbilt the theory. of procedure as ‘a

contest between two legal gladiators’; We are a Court ‘to secure the

just * * * determination of every action’. Rule 1, Federal Rules of *

Civil Procedure, 28 U. S.C. A.” Commissioner of Int. Rev. v. Chase

Manhattan Bank, 5 Cir. 1958, 259 F. 2d 231, 238. ’

~a »! ’7 > _—

- . ie

Mh Appendic B Ba

The resulting damage extends far beyond the mone-

~ tary loss to Curtis. This Court’s refusal to consider and °.

. decide whether constitutional standards .aqwere observed in

adjudging Curtis liable is a grave reflection upon the ad-

‘ministration of justice itself. Permitting such a libel judg-

ment to stand will.cause ‘‘: . . the pall of fear and timid-

ity [to be] imposed upon those who would give voice to

public criticism in an atmesphere in which the First Amend-

*’ ment freedoms cannot survive.’’™* ..

' A just determination requires this Court to consider

‘and decide this appeal on its merits." The altered situa- —

tion created. by the intervening ‘decision of the Supreme

Court makes that a compelling duty."* A

I, therefore, respectfully dissent.

14, New York Times Co."v. Sullivan, 1964, 376 U. S. 254, 278.

15, Hormel v. Helvering, 1941, 312 U. S. 552, 556, 557.

- 16, The Peggy, 1801, 5 U. S. (1 Cranch) 103, 110; Connor v.

New York Times Co., 5 Cir, 1962, 310 F. 2d 133, 135, and cases

«+

Meee

16a Appendie B we

OPINION OF THE UNITED. STATES ‘DISTRIOT

COURT, NORTHERN DISTRICT OF GEORGIA, ON

_ PETITIONER'S MOTION FOR NEW TRIAL.

UNITED STATES DISTRICT COURT

NortHern District on. GEorGia

Atianta Drviston.

Civ, Acrion

No. 8311. : .

WALLACE BUTTS, ;

| 7 Plaintiff’,

7 v. ;

CURTIS PUBLISHING COMPANY, '

5 3 Defendant.

The jury in this libel action returned a verdict for

general damages against the defendant in the sum of

$60,000.00 and for punitive damages ~in the sum of

$3,000,000.00.

The defendant moves, under Rule 59 of the Federal

Rules of Civil Procedure, 28 U.S. C. A., to set aside the

verdict for damages principally upon the ground of exces-

siveness, as set out in Ground 1 of the defendant’s motion.

Apart from defendant’s contention that the verdict is exces-

sive, the defendant sets out 23 other grounds in its motion

for a new trial (Ground bs of eee ate having

.been abandoned).

The cause of action % plaintiff arose a virtue of an .

article published ‘by defendant in its March 23, 1963, issue —

of the Saturday Evening Post, said article having been

Principally written by one Frank — Jt., but with

4 .

PCE Sy ONE Ee

ae Oo

Sel SOPH oo eae ee >

—

ts Sa x

e «

AM nan le Hie: ay

Appendia B : as [Ta

assistance from others employed: by the defendant. The

article was entitled ‘‘The Story of a College Football Fix’’,

with the subtitle “How Wally Butts and Bear Bryant

Rigged a Game Last Fall’’. The article. eoncerned alleged -

information on Georgia plays given by Butts to Coach

Bryant relating to the Alabama-Georgia f football game

played in Birmingham, Alabama, in September, 1962.

The article charged Butts with being corrupt and with

_ betraying his players, and ahat. the players were ‘forced

into the game like ‘‘rats in 2 maze’’ and ‘‘took a frightful

physical beating’. The article charged, in an italici

editorial, Butts, along with Coach Bryant, with being: a

participant in the greatest and most shocking sports scandal |

since that of the Chicago White Sox in the 1919 World

Series. In the same editorial Butts was relegated to a

.Status worse than that of ‘‘disreputable gamblers’’, and a °

corrupt person who, employed to “educate and guide young

men’’, betrays or sells out his pupils.

Plaintiff Butts had been Head. Football Coach at the

/ University of Georgia from 1939 until 1961, at which time

he became Athletic Director. As a member of his pro-

fession, he had been. president of the Football Coaches

Association, and by invitation had coached the College All-

Stars, the Blue-Gray All Star Game, and the N orth-South ‘

All Star Game. Butts has been a lecturer and speaker at

clinics and banquets throughout the United States. Testi-

mony adduced was that plaintiff had been offered employ-

. ment by several college and professional football teams in

, the country and was negotiating with a Texas professional.

team when the article was published, but thereafter nego-

Evidence was introduced that on Match 18, 1963, ‘Butts,

through his attorney, notified the Curtis Publishing. Com-

pany tant the article was false and advised that the article -

r , oe

Ta ™ | Appendia B |

not be published; and that thereafter, pursuant to Georgia

law, Butts requested a retraction from Curtis, which was

refused. It was admitted on the trial that one of Butts’

daughters had telephoned long distance to a Saturday Eve-

ning Post official with a plea that the article be withheld

from publication. The evidence of plaintiff showed that

plaintiff was capable of earning a minimum of $12,008.00

per annum from his football activities, but that since the

publication, all prior negotiations had been terminated.

The defendant filed its answer of justification and

Plead that the statements in the article were true. The de-

fendant thus assumed the burden of proving the trnth of

-the article: See Cox v. Strickland, 101 Ga. 482.

Curtis Publishing Company based its defense on cer-

tain notes taken, by~one. George’ Burnett who made such

notes to a telephone conversation -alleged to have been -

overheard between Coach Bear Bryant, of the University

of Alabama, and Butts, as Athletic Director of the Uni-

versity of Georgia, on a morning in September, a few days

prior to the Alabania-Georgia game. By. some mechanical

defect, Burnett was connected by telephone to the conver-

sation. These rough notes were- kept by Burnett and

revealed to Head Coach Johnny Griffith, of the University

of Georgia, in late December, 1962, or early January, 1963.

Curtis paid Burnett consideration for the story after the

same was-brought it its-attention by Curtis’ Birmingham,

Alabama, lawyers, who were defending Curtis in a libel

suit brought by Coach Bryant because of another article .

in the Saturday Evening Post. ery

_ The evidence presented showed that Frank Graham,

Jr., the author of the article; and Davis Thomas, Senior

Editor of the Saturday Evening Post, knew that Burnett -

had been convicted of “‘bad check writing”. ‘No represen-

tative of the Post looked at the notes before the article

‘

Appendia Bx F ‘79a

was published. _According to Coach Griffith of Georgia, de-.

féndant’s witness, ‘*a good number of Burnett’s notes were

_- ineorrect and didn’t even apply to anything Georgia had’’..

. No effort was made by the Post to view the actual game

film, although. the Sports Editor of the Post, one —_

. Kahn, considered that necessary.

Inserted in the article were the following’ direct quo- —

tations, which were subsequently * denied under = by

ng parties quoted: . . , |

(1) Graham wrote thal Burnett had told him that

Larry Rakestraw, Georgia quarterback, . placed his

feet in a certain posifien while on offense, thereby

tipping off the defensive team as to whether ghe

Georgia play would be a run or a pass. Burnett later

~ testified under oath that he ned not told Graham any

such thing.

e (2) Mickey Babb, another Georgia football player,

’ specifically denied the quotation in the article attributed

to him pertaining to knowledge: by the Alabama team

of the Georgia formations and plays. Babb was quoted

in the article as saying the Alabama players knew

Georgia’ 8 key play (eighty-eight pop) “and knew when

Georgia would use it. Babb testified Georgia had no ~

“‘eighty-eight pop”? play... This was ee by Goach

J Johnny Griffith.

(3) Sam Richwine, the Georgia trainer, specifi-

cally and categorically denied | the quotation in the

article attributed. to him, which was also to the effect

that Alabama knew Georgia ’s plays. : .

(4) Coach Johnny Griffith categorically denied

three separate and distinct quotes in the article

that were attributed to him.

i ce es

Appendia B ss

_ (5) There were many other instances in which

the individual, credited by Graham as giving Graham

certain information which was inéluded in the article,

categorically denied under oath that any such informa-

tion had been furnished. i

Frauk Graham, Jr., author of the. iti sali Charles

Davis Thomas, the Managing Editor of the Saturday Eve- ~

ning. Post, testified by deposition that they both knew that

after the article was published plaintiff Butts’ career would

be ruined. The author of the article, Frank Graham, Jr.

> testified by deposition at the trial. Curtis’ Editor-in-Chief,

Clay Blair, Jr., and its Senior Editor, Davis Thomas, were

present in court but testified by deposition. Furman Bisher,

of Atlanta, who was paid to assist in the preparation of

the article, testified by deposition. :

The article was clearly defamatory and extremely so.

The Saturday Evening Post had a circulation in excess of

6 million copies per issue. It clainis readers of 22 million.

Butts was unquestionably one of the leading figures in the

. national football picture. The jury was warranted in con-

cluding from the foregoing incidents and the persistent and

- continuing attitude of the officers and agents of the defend-

ant that there-was a wanton or reckless indifference of

ghts. The guilt of the defendant was so clearly.

establishedpby the evidence in the case SO as ‘to have left

the ju choice but to find the defendant liable.

This¥Court does not feel that the award of $60,000.00 ~

for actual dainages was excessive. The evidence showed

plaintiff to be a man in his fifties, and that his earnings

*from his profession had been a minimum of $12,000.00 per

annum.

The Court must now consider the amount of punitive

—- awarded. What is the nature of punitive damages

> «a

;, eX

Appendic B 3 | 81a.

law of Georgia provides’ that in every .tort there iiay be

and for what purpose do we allow their imposition? The =.

- aggravating circumstances, either in the act or the inten: _

tion, and in that event the jury may give additional dam-

ages to deter the wrong-doers from repeating the: trespass.”

Sec. 105-2002, Georgia Code Annotated, 1933.

: This Court, however, is greatly concerned with the

size of the verdict as to punitive damages. An exkmina-

tion has been made of: many cases and the awards made

throughout the several jurisdictions of the United States,

_ both in the Federal and the State Courts. As far as this

Court can ascertain, the largest award ever sustained for

_ Punitive damages by the Appellate Courts was an award

- Of $175,000.00 in the case of Reynolds v. Pegler, 123 F.-

Supp. 36, 223 F. 2d 429. Since the award in the case at

_ hand, the New York Supreme Court, Appellate Division,

October Term, in the case of Faulk v. Aware,Inc., and Hart-

_ mett, has reduced the award of: punitive damages in the

amount of $2,500,000.00 to $150,000.00. The award for

_ * punitive damages in the case.under consideration is more

than’ seventeen times larger than the highest award for °

punitive damages ever sustained. Reynolds v. Pegler,

supra. | Bt Me yl seie

True, fixing the amount of damages is primarily in the

province of the jury, and it has been said, with respect to

libel cases, ‘‘the jury is generally considered to be the su-

preme arbiter on the question of damages”’. Lynch ‘v.

New York Times Company, 171 A. D. 399, 401. The Court,

if possible, should try to avoid invading that field. How-

ever, a Court may not ‘stand by idly when it is apparent

that a verdict is ‘excessive. In Sunray Oil Corporation v.

Allbritton, 188 F. 24 751 (5 Cir. 1951), Judge’ Hutcheson

emphasized that a district judge has a duty to grant a new

trial, not only when the jury’s verdict is excessive as a

- PORE STATES e+

82a . - Appendia B

matter of law, but also where ‘‘it i is larger in amount than

the judge thinks it justly ought to be”’. Thus, he said:

. . ‘Whether, i in the opinion of the district judge a

\verdict is excessive as a matter of fact, that is, though _

cessive as a matter of law, itis larger in amount than

' the judge thinks it justly ought to be, or is excessive

as a matter of law, that-is, is so monstrous or inordi-

’ ‘nate in amount as to find no support in right reason,

he has the same power, the same duty, in the one case

as in the other to relieve against the excessiveness: by.

granting a.new trial or requiring a remittitur in lieu.’’

As was held by the late Judge Parker in -the case of

Virginian Ratlway we tadalied v. Armentrout, -166 F’, 2d 400,.

* 408: a — @

“The power nt duty of the trial. deles-tn set

aside the verdict under such circumstances is well.

ae '_+ established, the exercise of the power being regarded

‘as not in derogation of the right of.trial rol ot but.

«,* one of the historic safeguards of that right. * * °

“To the federal trial judge, the law gives ‘stile

power to see that justice is ‘done in causes pending be-

fore him; and the responsibility attendant upon such

“power is his in full measure. While according due re- ;

spect to the findings of the jury, he should not hesitate

to set aside their verdict and grant a new trial in any

~tase where the ends’ of justice se require.’’

Pic dits wea chasis hale tibet NLM wis ranked Whaat. el!»

. ae with the cases cited above, this Court

feels:it is its duty to keep a verdict for punitive damages --

within reasonable bounds considering the purpose to be : Wy

achieved as well as the corporate defendant’s wanton or lq

= ia a pro ne _—

~ Appendia B 88a

reckless indifference to the plaintiff’s rights. In observ-

ance. of such duty, this Court concludes that the award

for punitive damages in this case was grossly excessive.

It is the Court’s considered opinion that the maximum sum .

for punitive damages that: should have been awarded

against Curtis Publishing Company should be $400,000.00.

- Movant’s Grounds 2, 3> and 4 assert that -the right

given by Section 105-2002, Georgia Code Annotated, 1933, -

to a jury to grant punitive damages violates: the rights

‘guaranteed. by the. Federal Constitution to freedom of

speech and press and to substantive and procedural due

process. These contentions are without merit. ‘However,

these constitutional questions are raised for the first time

by this motion. No constitutional question concerning the

statute was ever raised by movant’s pleadings. The conten-

‘tion that a State statute is unconstitutional is an affirmative

» defense and must be so pleaded in defendant’s answer.

Kewanee Oil & Gas’ Company ‘v. Mosshamer, 58 F. 24 th, 6

712; White Cleaners & Dyers v. Hughes, 7 F. Supp. 1017 °

(D. C. La. 1934, 3 judges). |

Movant’s Ground 5 has been expressly withdrawn by

defendant. . a a

Grounds 6 through 13 of defendant’s motion contend

that error was:committed in- excluding certain evidence as _

' to specific acts of misconduct by plaintiff, defendant con-

tending that this evidence should have been permitted for

' the purpose of impeachment and in mitigation of damages.

The first consideration is Section. 38-202, ‘Georgia pegs

Annotated, 1933, which provides as follows:

*‘The general character of the parties, and espe-

cially their conduct in other transactions, are irrelevant

. Matter, unless the nature of the action* involves, such

‘character and renders necessary or proper the inves-

tigation of such conduct.’? teh |

| ‘84a ee Appendia B oa

5 {he' defendant contends that under Rule 43(a) of the.

Federal Rules of Civil Procedure, this evidence is admis-

sible in Federal Court. Rule 43(q) provides that in deter- —

mining admissibility,of evidence where there is a conflict

between the State

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