Appendix — Curtis Publishing Co. v. Butts
Supreme Court brief1967
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ee. <MAY 18. 1966
In on _JOHN F. ons LER
_ Supreme ‘Court ut the United. States
Ocroser TERM 19
. . + NoBBED [sD
— ASSOCIATED PRESS,
' Petitioner,
—against— :
EDWIN A, WALKER;
- "Respondent.
" APPENDICES TO.
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS FOR THE SECOND
PREME JUDICIAL DISTRICT OF TEXAS, OR, IN_
_ THE ALTERNATIVE, TO THE SURREME -
, COURT OF‘TEXAS” - .
EEE Eee
Wrttram P. Rocers ;
Leo P. LarkIN, Jr.
STANLEY GopOFSKY
200 Park Avenue
_ New York, New York 10017
-ArTHUR MoyNIHAN
50 Rockefeller Plaza. :
- New York, New York 10020
J. A. Goocr
SLOAN B. BLatrR
1800 First National Building
Fort Worth, Texas 76102 °°
_ Attorneys for Petitioner |
~ The Asocated Press
a
ui
a.
ee
TABLE OF CONTENTS |
PAGE
APPENDIX A—Constitutional Provisions and Statutes :
Involved '........ 0. cbc wees cece eee 1
- U. S. Constitution, Amendment I ...........\. . 1
U.S. Cénstitution, Amendment XIV, 2 eer e al
Vernon’ s Texas Civil Statutes, Article 5431 ...... o ] .
Vernon's Texas Civil Statutes, — 5432, Sub- |
sections 4 and Sys. Peabeawance Sccngheasonws 2
. APPENDIX B—Opinions of the Courts Below tee
Opinion of the Texas Court of Civil Appeals seeee 3
Opinion of the Trial Court ........ enennees seas oe
APPENDIX C—Portions of Record: Raising Constitu- —_
“43 tional Questions Below ..........6: 36
Paragraphs III, V,.and’VI of the Second Original
- Amended Answer of Defendant, The Associated ‘
Press, pp. 1 and 6-15 (Tr. pp. 1 and 26-35)°.. 36
Deféndant’s Motion to Disregard the Tuby'a'Ver-
dict; and-for Judgment Notwithstanding Said
Verdict, pp. 1 and 4 (Tr. pp. 63 and 66) ...... — («48
Defendant’s Original Motion for New Trial, p. 1
". CRE. ie 73) BORE EE Sing - E 50
Defendant’s Amended Motion iin Néw Trial, pp. 1;
and 3 (Tr. pp. 78 and 80) ......... 0s .ee eee 51
Brief of Appellant The Associated ‘Press in the
‘Texas Court of Civil Appeals, pp. 1, 9 and 73-85 53.
Reply Brief of Appellant The Associated Press in
the Texas Court of Civil Appeals, pp. 1, 6-8 and i
SE: VEivoe ca vciaescuane base eee qaeasasabne
~
‘Motion of Appellant The Associated Press for Re-
hearing in the Texas Court of Civil Appeals, pp.
l and J \..... bap eMecchececebesgetecessse
Application for Writ of ‘Error of Petitioner The
Associated Press in the Supreme Court of Texas,
Bee WED pccvigccscsccccescans OCT TT TTT
Motion of Petitiorltr The’ Associated Tee for Re--
y nearing é in the Supreme Court of Texas, pp.
pea Se D—Judgments of the Courts Below ....
_ Judgment of the Texas Court of Civil Appeals ios
, _ Judgnient of the Supreme Court of Texas - caashee
Appenpix E—Conflicting Opinions ... : a We eseode :
1. Walker v. Courier-Journal and Louisville Times
Co., 246 F. Supp. 232 (W. D. Ky. 1965), 2PP.
2. Paling ¥. National Review, Inc., —7 2d
N: YrS. 2d (Sup. Ct. N. Y. a
1966): (mot yet reported). .....csescccsevess
PAGE
132
3. Gilberg v. Goff, 21 App. Div. 2d 517, 251 ~
N. YS. 24 823 (2nd Dept. 1964), afd. 15
N. Y. 2d 1023, 207 N. E:2d 620 (1965) ......
4. Pearson v. Fairbanks Publishing Co., (Super.
'- Ct. Alaska 4th Dist., 1964) (unreported), aff'd.
on other grounds Alaska =
28, 1966) (not yet reported) . beeen ee eeeeges
5. Brennan v. Associated Press, a
Supp. (D. Conn. 1966) (not yet re-
ED us tk cen sevke as bbhad6eepdancaaeeds
APPENDIX F—Libel Suits Brought - General
' Walker Arising Out of News Reports
Identical Or Similar To Reports: Here
— Me Ghuvéxchenaeah anes
181
“APPEND A.
Constinationsl Provisions and Statutes Revebved
U. S. Constitution, Amendment I
Congress shall make no law respecting an establishment
~ of religion, or prohibiting the free exercise thereof} or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
* the Government for a redress of grievances.
VU. S. Cotistitution, Amendment XIV, §-1. .
All persons born or naturalized in the United States,
and_ subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, ©
liberty, or property, without due process of law; nor deny
, to any person within its jurisdiction the equal protection
of the laws. ;
Vernon’s Texas Civil Statutes, Article 5431
In any action for libel, in determining: the exfént and
source of actual damage and in mitigation of exemplary or _.
- punitive damage, the defendant ‘may give in evidence, ae
specially pleaded, all material facts and circumstances sur- .
\ rounding: such claim of damage and the defense thereto, and
also all facts and circumstances under which the libelous
publication was made, and any public apology, correction or
retraction made and published by him of the libel complained
of, and may also give in evidence, if specially — in
*
. .
2a
" Appendis: A
C onstitutional Provisions and Statutes Involved
“mitigation of exemplary or punitive damage, the intention _
_ with whicli the libelous publication was made. The truth of
the statement, or statements, in such publication shall. be a
’ defense to such action.
a
Vernon's s Texas Civil Statutes, Article 5432, O
Subsections 4 and 5
‘The publication of the. following matters by any news- *
paper or periodical shall be deemed privileged and shall not
be made the basis of any action for libel.
7 * * *
_ 4. A reasonable and fair comment or criticism of the
official acts of public officials and of other matters of public
concern published for general information.
5, The privilege provided: under Sections 1, 2, 3, and 4,
‘of this article shall extend to any first publication of such
. privileged matter by any newspaper or periodical, and to
subsequent publications thereof by it when published as a
matter of public concern for general information; but any
Te-publication of such privileged matter, after the same has
ceased to be a matter of such public concern, shall not be
deemed privileged, and may be made the basis of an action
for libel upon préof that such matter shived to. be of
yA
. such public concern and that same was pu ished with actual |
. malice.
a
i
ee, APPENDIX B
if Opinions of the Courts Below
a *-
aes Opinion of the Texas Court of Civil. Appeals
v a IN THE’
Court ot Cinil Appeals \
FOR THE
SECOND SuPREME JupiciaL District oF TEXAS
~~,
No. 16624
-
‘THE ASSOCIATED PREss,
-
: Appellant, |
- ws. ;
Epwin A. WALKER, . c
; : _ Appellee.
*
: > * os
From THE District Court or TaRRANT County
aa
_
~ OPINION ; . ¥
| This : is a libel suit. The parties will be a as
. ithey were in the court below or The Associated Press as
= the A. P. and /Walker by name. © _
The following are the reports of which Walker com-
plained: e.
“October 2, 1962 Walker, who Sunday night led a
charge of students — federal marshals on the Ole
Appendix B
Opinion of the Texas Court of Civil Appeals
Miss Campus, was speenint on four counts including i insur-
rection against the United States.’ an
“October 3, 1962 (Editors Note:* Former Maj. Gen.
Edwin A. Walker, a key figure in the week-end battling .
over admission of a Negro to the University of Mississippi,
was eating dinner Sunday night when he says he was told
there-was a ‘scene of considerable disturbance’ on the Uni-
versity of Mississippi Campus. He went there. Here is.”
the story of Van Savell, 21, Associated Press newsman,
. who wasn the scene and saw what happened. )
a “By Van Savell: Oxford, Miss., October 3, 1962 (AP) °
} ‘Utilizing my youth to the fullest extent, I dressed a$ any
college student would and easily milled among the several
thousand rioters on the University of Mississippi ——
Sunday night.’ -
“ ‘This allowed me to follow the crowd—a few studénts
and many outsiders—as they charged federal marshals
-surrounding the century old Lyceum Building: It also
brought me into direct contact with former Army Maj. Gen.
Edwin A. Walker, who is now under 3rrest on charges of
inciting insurrection and seditious Sonspiracy.-
“Walker first appeared i riot area at’8:45 p.m.,
Sunday near: the University ~ ue entrance about 300 -
, . yds. from the Ole Miss adminisigation Building.
‘em CON“ He was nattily. dressed in a black suit, tie and shoes
| and wore a light tan hat.
“ ‘The crowd welcomed Walker, ‘init this was the
man who commanded the 101st Airborne Division during .
the 1957 school integration riots at Little Rock, Arkansas.
“One unidentified man queried Walker as he ap-
proached the group. “General, will you lead us to the“
steps ?”
y
> 5
paueeneenieneceermanes nue ae —
. —
_and nodded “Yes” without speaking. He then conferred
with a group of about 15 persons who appeared to be the
_ Walker was unarmed, the crowd said this was the moral\) -
- weapons—the bricks, the bottles, ‘rocks and wodéden stakes
thereafter, Walker climbed halfway up the Confederate
. 7 ° Sa
Appendix B
Opinion of the Texas Court of. Civil. Appeals
we S observed Walker as he loosened his tie and shirt
Tiot leaders. . .
_ ““The crowd took full advantage of the near-by con-
struction work. They broke new bricks into several pieces, . .
took survey sticks and broken soft drink bottles. a
* “Walker assumed command of the crowd, which I
‘estimated at 1,000: but was delayed for several minutes
when a neatly dressed, portly man of about 45 approached
the group. He conferred with Walker for several minutes’
and then joined’a group near the front. |
“ ‘Two men took Walker by the arms and they headed >
for the Lyceum and the federal marshals. Throughout
this time, I was less than six feet from Walker.
“ ‘This march toward tear gas and some 200 marehale
was more effective than the previous attempts. Although
support they needed.
“ ‘We were met with a heavy barrage of ws gas sbout
75 yards from the Lyceum steps and went a few feet
further when we had ta turn back.
“ ‘Before doing so, many of the rioters hurled their
—toward the clustered marshals.
“ “We fled the tear gas and the- charging marshals—
the crowd racing back to’a Confederate soldier’s statue
near the grove entrance below the Lyceum.
“‘T went to a telephone. A few minutes later I returned
and found Walker talking with several students. Shortly
monument and- addressed the crowd. oo
‘
° . F 5 a 6a
oe Appendix B .
: Opinion of me Texas Court of Civil Appeals
“*T heard Walker say that Gov. Barnett had betrayed
the People of Mississippi. “But don’t let up now,” he said,
You may lose this battle, but you will have been heard.”
“ ‘He continued: “This is a. dangerous situation. You
must be prepared for — death.» If _you are. not, go_
home now.” , °
"There were cheers. It was apparent that Walker
_ shad complete command over the group. *~
“ ‘By this time, it was tiearly 11:00 p. m. and I raced
" to the ;_telephone again. Upon my return, Walker was
calmly explaining the “New Frontier Government” to.
several bystanders. He remained .away from the rioting
throughout the next few — but advised, on several
tactics. .
ait ‘One Ole Miss aistent queried the former General,
“What can“we use to make the tear gas bombs ineffective?
Do you know of any way that we can attack and do some
damage to those damn Marshals?”
“ ‘Walker suggested the use of sand to cual out the
tear gas.
“<“This stuff works real: well, but shies can you get
it?”, he asked.’ zm
é ‘At this: time the rioters were using a University fire
_— and fire extinguishers in an occa to make the tear
-’ gas bombs ineffective. _. Fa
“T left Walker and. walked duns 100 ‘en away
where: Molotoy cocktails—gasoline, in bottles with a fuse—
were being made.
. “*Again I left the area for a telephone. As I wales
towatd_ a Dormitory with George Bartsch of the Little _
- Rock Associated Press Bureau, we were. attacked by
Marshals who mistook us fot students. We were deluged
fa
Appendix B
Opinion of the Texas C ourt of Civil Appeals -
_ by tear gas, manhandled, handcuffed and beaten with clubs.
during a 200. yard walk back to the Lyceum Building.
.“ ‘Thanks to recognition from Chief Marshal James P.
McShane, we were quickly. released and given freedom in
the Marshals’ Headquarters.
“Within minutes. rifle and shotgun fire erupted from
the rioting crowd and two men—one a French newsman—
_ were killed. We considered ourselves lucky to have been
arrested and gad to .be behind: closed, heavily guarded
doors. 9 99 - 3 / ‘
The only eo statements of the above quated veodte
which were complained of by Walker as being libelous and-
which form the basis of special issues subrhitted. by the -
Court-were: (1) “Walker; who Sunday led ¥ ‘charge of -
~ students against federal marshals on the Ole Miss Campus”
(October 2; 1962 report), and (2) “Walker assumed com-
mand of the crowd” (October 3, 1962 report). For the’
sake of brevity these two statements will hereinafter be’
referred to as the “charge” and * “command” statements
respectively. | ' :
In answer to special issties ene through four, the jery
found that the “charge” statement was not “substantially
true”, did not. constitute fair comment, was not made in.
good faith and was actuated by malice. It found to the
same effect in response to similar i issues five. through eight
concerning the ‘“commarid” statement.
In answer to issue No..9 the j jury found damages in the
sum of $500,000.00 and having found that A. P. was actu-
‘ated by malice in answer to special issues Nos. four and
eight the jury, in response to special issues Nos. ten and
eleven found that exemplary damages should be awarded
and in the amount of $300,000.00. 3
8a
| S Appendia BO
Opiaion of the Texas Court of Civil Appeals
Based. upon the’ verdict of the jury, judgment was
entered fot Walker and against the A. P. in the sum of
$500,000. The judgment.recited that there is no evidence
to support the jury’s findings of malice and $300,000 for
_ exemplary damages. 7 |
Appellant contends that the court erred in rendering
judgment for appellee rather than it because (1) as a matter
‘of law the evidence conclusively established that the
“charge” and “command” statements were substantially
‘true; (2).each statement was a fair comment about'a matter
of public concern published for general information and
thus privileged under the provisions of Art. 5432, V. A.
C. S.; (3) such statements made without malice are pro-
tected by the First and Fourteenth Amendments to, the
Constitution of the United States; (4) over objection ap-
pellee was permitted to testify that he did not assume com-
mand; (5) it held as a matter of law that the “charge” and
“command” statements were libelous rather than submit-
ting issues as to each; (6). the evidence conclusively estab-
-lished as a matter of law that the “charge” and “command” »
- statements weré made in good faith with reference to mat-
ters it had a duty to report‘to its members and thence to the
public; (7) the amount of damages found were so grossly
excessive as to be patently wrong and unjust and the'find- —
ings in response to the damage issue No. 9 and to special
issues one, two, three, five, six and seyen are so against the
weight and preponderance of: the er a as to be mani-
festly wrong and unjust and thus insufficient to support
such answers; and (8) the evidence conclusively establtshed
as a matter of law that the jury was guilty of material mis-
conduct which probably resulted in injury to the defendant.
We affirm. | |
9a
A ppendix B
Opinion of the Texas Court of Civil Appeals —
_ Evipence nee
sf & _
In discussing the points relating” to the quantity ‘and
quality of the evidence we have examined the complaints
of the appellant in the light of thé Article by Chief Justice
‘Robert NW.\ Calvert entitled, “ “No. Evidence’ and ‘Insuff-
cient Evidence’ Points of Error’, 38 ~~ Law Rev. 361
and authorities therein cited. tee
The evidence considered in its most tase light i in
_ support of the findings of the jury and the judgment of the
court is in essence as follows: At approximately 4:00
_P. M. of the day in question, a ring of Federal marsKals
had encircled the Lyceum Building. © Walker arrived on
the campus about 8:45 P. M. At that time”a loud, violent
riot was in progress in an area of the campus known as the.
Circle. A crowd assembled in the Circle area, began taunt-
‘ing and jeering the marshals. ‘By 8:00 P. M. a full scale
riot had erupted which was to continue all night, destroy
16 automobiles, kill two people, injure 50. The rioters:
would form into groups and charge toward the marshals,
throwing bricks, bottles, rocks, sticks and’ other miésiles.
The rioters attempted to charge the marshals with a fire
- truck and then with a bulldozer. “Molotov cocktails” were
hurled at the marshals. Finaily rifle fire ¢rupted. ‘The
next morning the campus ldoked like a battlefield. Soon
after his arrival, Walker, after some urging to say a few
words, spoke from the steps of the Confederate Monument. a
While there is some dispute as to what he said, there is
testimony that he told the assembled groups that while they
had a right to protest that violence was not the answer.
He was “booed” or “jeered” at this time and again when
urging a cessation of violence. He and others: walked
* in the direction of the Lyceum Building where the marshals
10a
| Appendix B
Opinion of the Texas Court of Civil Appeals
were stationed but he never came closer to the «marshals
than the monument or the length of a football field. He .
was there to watch what happened. He wanted a peaceful
demonstration as a protest. His presence there was not,
illegal or unlawful. He had the same right to come upon.
the campus and observe the activity as did the various mem-
bers of the press who were there to observe and to report.
He was one of the crowd. He was not in the forefront,
never in front of the crowd. He never hurled any rock,
brick or other missile in the direction é6f the marshals or
otherewise. He did not participate in the riot. He never
directed or suggested that others.do so: He issued no direc-
tions nor did he counsel or siiggest to others that they
charge the marshals or take any other offensive action
toward them. The crowd was disorganized. It was a lead-
erless group. Groups were milling aimlessly. No one, in-
cluding Walker, made any effort to assume leadership.
Walker did not run. He never got. out of a slow walk; de-
scribed as strolling, ambling, or “moseying” along. He
never participated in the riot or violence in any manner.
He made no effort to incite or move others to action or
violence. When asked how to drive Ge marshals out, he
said: “You don’t.”
_ * Throughout the trial Walker cniniaiaad the ine posi-
tion that because of’ his opposition to the use of Federal
troops within a State, and his personal knowledge of the
deviation between the occurrencés at Little Rock where he
was indeed in command and the newspaper stories of those
occurrences, that he was at Oxford to see for himself at
firsthand what was actually going on. “He maintained that
he did not. assume command of the crowd, did not lead a
charge, and did not participate in the rioting. He was
proces for the sole purpose of observing. The jury saw
| lla
-- Appendix B ‘
Opinion of the Texas Court of Civil Appeals
him, observed his demeanor; heard what he said, and believed
_ ““No evidence’ points must, and may only, .be sus-
tained when the record discloses one of the following situa-
tions: (a) a complete absence of evidence of a vital fact;
(b) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to proye a vital
fact; (c) the evidence offered to prove a vital fact is no |
more than a mere: scintilla; (d) the evidence establishes
conclusively’ the opposite of the vital fact.” 38 Tex. Law
Review, pp. 361, 362, supra. - .
Subdivisions (a). and (b) above have no application to
the record or the facts in this case. As to (c) we have
viewed the evidencé in its most favorable light in support
of the findings of the jury upon which’ the judgment of .
the Court is based, consideritig only the evidence and the
inferences whith support the findings and rejecting the -
evidence and the inferences which are contrary to the find-
ings. In the application of this test we have determined that:
all of the findings of the jury, upon which the Court based
its judgment, are supported by ample evidence. Having
reached this conclusion it follows that we find no merit in
the appellant’s contention that the evidence establishes con-
Clusively the opposite of what the jury found. We find that _
“Bone of the situations discussed by Judge Calvert under
(a), (b), (c) or (d) is disclosed by the record. Further -
we have concluded from our study and/examiination of the
entire record. that the findings of the jury upon which the,
Court based its jiidgment is not so contrary to the great —
weight and preponderance of the evidence as to be clearly
wrong or unjust. f
~/ :
“12a
Appendix B
— al ‘the Texas Court of Civil Appeals
sii are the enthesive judges of the controverted
issues of fact raised by the evidence, of the weight tobe
given the evidence, and the inferences to be drawn there-
‘from. They are the exclusive judges of the credibility of
the witnesses. “The law does not attempt to tell jurors
_ what amount or kind of evidence ought to produce a belief
~ in their mirids. They may believe a witness although he
has been contradicted. They may believe the testimony of
one witness and reject the testimony of other witnesses.
They may accept part of the testimony of one. witness and
disregard the remainder.”- McCormick & Ray, Texas Law
of Evidence, § 3; Austin Fire Ins. Co. v. Adams-Childers
Co.; 246 S. W. 365 (Tex. Com. App., 1923).
“The mere fact that a verdict is against the preponder- ©
ance.of the evidence will not authorize a reviewing court
to set it aside, if there is some evidence to support it, or
evidence that would support a verdict either way. The ,
court of civil appeals will set aside the verdict and findings
of a jury only in cases where they are so against such a
preponderance of the evidence. as to be manifestly unjust
or clearly wrong, or where they show clearly that the
finding or verdict was the result of passion, prejudice, or
improper motive, or in such obvious conflict with the jus-
tice of the case as-to render it unconscionable. ”- 4 Tex,
Jur. 2d, p. 395, § 838, and authorities cited therein.
“Where evidence is conflicting, a reviewing court will —
not disturb the jury's verdict or findings if there is evidence
of probative value to support them, unless the evidence is so
overwhelming against the verdict or findings as to shock.
the conscience or show clearly that the conclusion reached
was wrong or was the result of passion, prejudice or im-
“proper motive.
wa
- Ia
Appendix B
Opinion’ of the Texas Court of Civil Appeals
“The findings on conflicting evidence are usually re-
_ garded as ‘conclusive,’ ‘binding,’ or ‘decisive,’ and will be
‘adopted’ or ‘accepted’ as the findings of the appellate court,
~
unless some good reason is presented that would ‘justify the
© | ;
court in taking Some other view. 7
“A jury finding on facts will not be set aside because it
does not appear'to be clearly right; it must appear to be
clearly wrong before the appellate court will disturb it. |
“The fact that the appellate court would not have found*
as the jury did is not the test to be applied on appeal. The
true test is that made by the jury, orf firsthand evidence,
adduced before them from living witnesses whose credi-
bility and the weight to be given their testimony were de-
terminable by the jury. Where the jury’s findings are in
accord with the testimony of different disint@ested wit-
nesses, the fact that there is other testimony to the contrary
does not authorize the appellate court to overturn the ver-
dict. . . .” 4 Tex. Jur. 2d 390, § 837-~gnd authorities cited
therein.
In the application of the rules of law andthe authorities
above referred to, we overrule all points of error relating
to the quantity or quality of the evidence™supporting the
findings of the jury upon which the Court based its judg-,
ment.
Walker to. testify that he did not assume command of the
crowd. oe ie
He testified that he became a professional soldier upon
completing four years at West Point in 1931 whem he was
commissioned as a Second Lieutenant. He had combat
experience in the Mediterranean, European and Asiatic ,
Theatres during World War IT and in Korea. He finally
. We find no.error on the part of the Court in permitting’
ee’
| Appendix B |
Opinion of the Texas Court of Civil Appeals
attained the rank of Major General. During the course of
the trial Walker testified on several occasions without ob-
jection that during the Little Rock matter he took command
. of the troops, was assigned as commander or that the troops
were under his command. In connection with the occasion
in question at Ole Miss he was asked if he, “participated in
any way in any activity of the crowd that was throwing
‘ things at the Marshals?” He answered- without objection
that he had not participated in any way. He was then asked
if he assumed “any cammand over this crowd.” Objection
was made on the ground that the answer would be a con-—
clusion,on the part of ‘the witness. , The Court permitted
Walker to answer and he stated, “I certainly did not” and
‘in response to another question he answered without ob-
‘jection that he certainly knew what it meant to assume
command. The news item in question had identified Walker
as the former Major General who commanded the 101st —
- Airborne Division at Little Rock followed by the statement,
“Walker assumed command of the-crowd.”
The -Article in question stated as a fact that Walker
had “assumed command of the crowd.” We think that .
Walker, subject of this remark, had the right to dey or
affirm the truth of it: We think that the opinion in Goode
v. Rainey, 48 S. W. 2d 719 (El Paso Civ. App., 1932,.
refused), is applicable. Therein it ‘was stated, “We are
not prepared to say under the record, as presented here,
_ that it was error to admit the statement of the witness.
- The issue sought to bé proved was not a mixed question of
law and fact, but purely a fact question. We think the
issue was one upon which a witness in possession of ‘all
the facts may properly state his opinion or conclusion to
which such facts would fairly lead, notwithstanding the,
15a
‘a . &
. . A ppendix B
Opinion of the Texas’ Court ¥ Civil » ‘Appeals
* witness’ answer may embrace the very issue to be submitted
to the jury. The conclusion of the witness is then testified
to like any other fact to be considered by .the jury for
“what-they may believe it to- be worth. Scalf v. Collin
County, 80 Tex. 514, 16 S. W. 314; Adkins-Polk Co. v.
John Barkley & Co. (Tex. Civ. App.) 297.S. W..757;
Internatiortal & G. N. R. Co. v. Mills, 34 Tex. Civ. App. -
127, 78 S. W. 11.”
If we are mistaken in holding that the testimony of
Walker was admissible we nevertheless overrule the point
of error because we are of the opinion that the error, if
any, in admitting the testimony, was harmless within the
meaning of Rujes 434 and 503, T. R:‘C. P.; Dallas,Railway,
& Terminal Co. v. Bailey, 250 S. W. 2d 379, 151 Tex. ©
359 aad 2. | |
.- Farr CoMMENT
The appellant contends that the “charge” and “com-
mand” statements constituted fair comment and thys were.
privileged under the provisions of Art. 5432, V. A. C.S.
- We find and hold that both the “charge” and -the “com-
mand” statements were statements of fact and notyof com-
- ment. “Walker, who Sunday, — led a charge of students °
against federal marshalls . ... .” and “Walker assumed
tommand of the crowd . . . .”, (emphasis added): are posi-
tive statements of fact. “Truth of the statenients would
constitute a complete defense. Appellant failed in its effort
to establish this defense to the satisfaction gf the jury
which found that neither of the statements were substan-
tially true.
on
l6a
iA ppendis: Be,
Opinion of the Texas Court of Civil Appeals
In an article on “Fair Comment” by John E. Hallen,
8 Tex. Law Review 41 (1929-30), the author in discussing
Art. 5432, V. A. C. S.,-states: “The 1927 Libel Law pro-
vides:
*
“ *The pbiistiteine of the Pea inatters by any
newspaper or periodical shall be deemed privileged and shall
not be made the basis of dny action for libel. . ..
“4. A reasonable and fair comment or criticism of
the official acts of public officials and of other matters of
public concern: published for general information.’
“Paragraph 4 was in no way changed by the 1927
amendments and has appeared exactly in that form since
nae "a
. the right of, fair comment was not created by the
statute. It is well recognized by the common law. Every —
one has the right to comment on matters of public interest
and general concern and within limits is not liable for stat-
ing his real opinion on such subjécts, however severe the
criticism may be. It is immaterial whether or not the criti-
. tism is sound, or whether the court or jury would agree
with it, so long as it represents the honest opinion of the -
speaker upon a-matter of recognized public interest. .
“The statute expressly declares that fair comment by
hewspaper and periodicals is privileged. But since this
right was enjoyed by everyohe at common law, the statute:
gives-the newspaper no added privileges. Nor is it to be
wercerngge as taking away the corfimon: por defense of indi-
viduals. .. . (p. 41) . Pe Sie
“Tt ‘should be remembered that there i is a distinction be-
tweeri comment or criticism, which is the opinion of the
Appendix B
Opinion of the Texas Court of Civil Appeals
speaker or writer upon certain facts, and the facts upon .
which that opinion is based. A misstatement of -fact can- .
not ordinarily be. justified by a : plea bas fair comment.
(p. 43) : |
“Tt has already been said that fair comment is a criti-
cism, discussion, or expression of opinion upon existing
facts and does not protect against a misstatement of the - -
facts themselves. The question of what should be called
fact and what comment is difficult....” (p.53)
“Texas has swung from its early holding in the Cope-
land Casé (Express Printing Co. v. Copeland, 64 Tex. 354
(1885) that an untrue~charge of crime, honestly and
reasonably made, about a public officer, is privileged, ‘to its
' present position that such a ‘charge cannot be justified by
a newspaper. In following its present doctrine Texas is
supported by the weight of authority, and there are strong
reasons for its holding.” (p. 99)
An article under the heading of “Libel and ihe |
‘Fair Comment—Statements of Opinion” by Tom J: Mays
| appears in 16 Tex. Law Review 87 (1937-38). He.com-
mences with, “A judicial warning to the press with respect —
to comment and criticism upon matters of public interest is
-discernable in the recent decision of Houston. Printing Co.
v. Hunter.” 105 S. W. 2d 312 (Fort Worth Civ. App.,
1937), affirmed 106 S. W. 2d 1043 (Tex. Sup., 1937).
The article continues, “That fair comment and criticism _
upon such matters is qualifiedly privileged is quite generally
recognized both at common law and in. Texas. by statute.
On the other hand, where false allegations of fact are made
regarding matters of public concern, the courts are not
in accord. Perhaps a majority of the cqurts hold that false
_ allegations of fact are not entitled to immunity even though
- ! ° 18a
A Deendiv B
Opinion of the Texas Court of Civil A ppeals’
made in good faith and withoptt malice. . . Texas is
clearly in line.with the majority, holding that falsification
of the facts is never privileged. ae
“Although the distinction between statements of fact
and statements of opinion'or comment has_ been freely
recognized, it is generally conceded that distinguishing the
two becomes a difficult problem in many cases.” (p.88) ._
_ “Most of the cases, it seems, wherein the words are
‘held actionable as statements of fact, have found imputation
of malfeasance, misconduct, or corruption in office, or’
imputations of evil or corrupt motives in the administration
of duties. These being treated as statements of fact, then
_ certainly a false imputation of crime committed by a public
officer or candidate would be actionable as a statement of
fact in Texas. (pp. 89-90) .
- “It is manifest that some » method j is feeded by which
to distinguish between statements of fact and comment;
and it is equally certain that no absolute test can be laid )
down. But it is submitted that more desirable and satis- *
a factory results can be reached.” -( p. 90) 3
The author suggests the following test by which to
distinguish statements of fact from comment, “Where the
statements alleged to be libelous can be reasonably construed
_by the reader as an expression of opinion only, on the basis
of facts either already known to the reader or else reason-
ably assumed by the person writing the statement to be
known to the reader, then it should be regarded as fair
comment. Where, however, the statement. alleged to be
libelous, as reasonably’ construed, conveys .to the reader
not only an expression of. the writer’s opinion, but also
certain supposed information, and this. information con-
veyed does not accord with the true facts, it is not comment,
but should be treated as a statement of fact. ° |
»
19a
Appendix B ‘om
_ Opinion of the Texas Court of Civil Appeals
“Under this test, whether a’ publication will be treated
as a statement of fact and libelous, if untrue, will depend
‘upon the surrounding circumstances of each particular case.
Under such a guidance, even an imputation of crime might
be held to be merely an expression of opinion and not
actionable.” (p.91) — .
In, “The Press and the tow in Texas” by Norris G.
' Davis, University of Texas Press, Austin, 1956, it is stated
that, “. . . the right of fair comment is a‘ weak defense in
most libel suits. It is subject to so many limitations that
it is seldom completely applicable.. There are three groups
of limitations. Fi irst, the comment must be limited to
_ matters of public coriseern. Second,-the articie must be a
‘‘statement of opinion—or .comment—rather than a state-
ment of fact, a very difficult distinction to make. Finally,
the comment must'’be reasonable and fair and made in good
faith, and this limitation is also difficult to define.” (p. 65)
“Even if the subject matter and the ‘person concerned
are clearly matters of public concern, there remains two
severe limitations. One of these, the requirement that the
story or article must be conyment, not a statement of fact,
has caused by far the most trouble. The separation of com-
ment from factual statements in most stories and articles
is extremely difficult, and Court decisions have shown con-
fusion on the point.” (p. 67) “One important rule devel-
oped for separation of fact and comment is the theory that
imputation of dishonest motives to a public official or _
imputation of an “Act constituting a crime under the law is
a statement of fact and cannot be considered fair comment.”
(p. 68) San Antonio Light Pub. Co. y. Lewy, 113 S. W.
574- (CCA of ‘Texas, 1908, Ref.); Forke v. Homann, 39
S. W. 210 (CCA of "Texas, 1896, ref.). The author in
reference to the article by Mays in 16 Tex. Law Review 87
,
ih Ae al a
”
t | 20a
A sail .
— Opinion of the Texas Court of C ivil A ppeals
(1937-38), states : “One writer who has studied the fair-
comment tases in Texas and has found the same confusion
illustrated here has offered the following definitions of
‘‘opinion statements’ and ‘fact statements.’” (p. 73) He
then quotes the test suggested by Mays and continues:
“Certainly the courts should become aware of the need to —
distinguish statements of fact from ‘opinion on a less arbi-
trary basis. than is.now customary. If the Supreme Court
would adopt such a definition as the one quoted above, it
would do much toward creating such an awareness. Actual
differentiation of fact and opinion would still be difficult,
_ but court decisions would .be more just. (p. 74)
“Actually, it is clear that almost any story, editorial, or
other type of news article must be a mixture of statements
- of fact and comment, even though the writer attempts to
confine himself to comment. oe type of comment, in im-
plication at least, must be bas€d on fact ; and newsmen know
that the most effective comment is that based on startling
and important statements of fact. Newsmen should there-*~
fore be prepared to prove the truth of any statement of fact
and to rely on fair comment as defense only for the conclu-
sions drawn from these true facts. They should strongly
urge the courts also to make the distinction between’ fact
and opinion rather than, as they so often do, plead all de-
fenses to all parts of a story alleged to be libelous.” (p. 74)
In our opinion the test suggested by Mr. Mays and
favorably commented on by Mr. ‘Davis is a good one. We
think that its application to the facts in this case support our
holding that the statements involved were statements of
fact and that the appellant was not prepared to prove the
truth of either statement. The information. conveyed was
not in accord with the true facts. Reference is made to the
ok
Pee |
2ila
. Appendix B
Opinion of the Texas Court of Civil Appeals’. *
complete text of the articles above referred to and the iy
authorities cited therein. See also 36 Tex. Jur. 2d Libel —
and Slander, §§ 87,-89, 92 and 171 together with cases -
cited under each. | asf
_ We find no merit in appellant’s contention that the re-
ports, made without malice, are protected from the claim of
libel by the First and Fourteenth Amendments to the United
States Constitution. These Amendments prohibit Congress
from making laws abridging freedom of ‘speech and of the
press and the State from making or enforcing laws of
similar nature. me
“The interest of the public in obtaining information
about public affairs and of the defendant in discussing such
matters is often brought directly in conflict with the plain-
tiff’s claim to his own good name, and the law must draw
a line between them. .. . (8 Tex. Law Rev. 41, p. 98)
“It is not true that false. and derogatory statements
about a man’s character are today. always actionable. If
they were, the whole defense of privilege would be.swept
away. Nor is it true that everything.may be justified. under F
a defense of free.speech or press. These rights as embodied
‘in constitutions and statutes, were designed primarily to
"prevent interference by the government with a man’s talk-
ing or writing, and not to do atway with responsibility for
what was said. If ‘Freedom of the Press’ always furnished -
a complete defense there could be no such tort as libel. . : .”
(8 Tex. Law Rev. 56) : | |
“It is submitted that any decision based entirely upon
the right to an inviolate character or freedom of speech is
unsound. Either doctrine given full sway would annihilate
the other. . ..” (8 Tex. Law. Rev. 61)
“Articles 5430, 5431, 5432, and 5433, Vernon’s Texas
Civil Statutes, 1948, clearly declare the policy of this State
22a
‘Appendix Bo 3
Opinion of the Texas Court of Civil Appeals
regarding thé question of libel. The law protects the right
of a citizen to defend his reputation and good name from |
libelous publications, and this right is. zealously guarded. -
Bell Pub. Co. v. Garrett Engineering Co., 141 Tex. 51, 170
~ S. W. 2d-197; Belo & Co. v. Looney, 112 Tex. 160, 246
S. W. 777; Express Pub. Co. v. Keeran, Tex..Com. App.,
284 S. W. 913.” Fitzjarrald v. Panhandle Pub. Co., 228
S. W. 2d 503 (Tex. Sup., 1950Y.
We find no‘application of the authorities cited by the
_ appellant to the facts of this case.
Lisetous Per SE @
° . %
Did the Court commit error in holding as a matter of
law that the “charge” and “command” statements were.
g'
libelous per se, rather than to submit same to the jury for
its determination? .We think not. ‘The language contained
in the statements is not ambiguous. There can be no doubt.
as to the meaning of either. -
Each of the statements imputed to Walker the crime of
insurrection against the United States. It is undisputed
that the crowd on the Ole Miss Campus was engaged in
rioting and by force intefering (sic) with the efforts of
U. S. marshals to enforce an executive order of the Presi-
dent of the United States issued under sanction of law and
of applicable statutes. Insurrection is punishable by fine or
imprisonment or both. co
The statements further impilted to Walker responsi-
bility for the death of two men and of the wanton destruc-
tion of property, all accomplished by students and others
under his leadership and direction. The onslaught of the
riotous crowd “led” by Walker who had “assumed com-
eae eee
23a
oy . Appendix B |
Opinion of the Texas Court of Civil Appeals
mand” was such that Van Savell considered he was, “lucky
to have' been arrested and glad to, be behind closed, heavily
guarded doors.” ; |
It imputed that Walker, who “advised on: several tac-
tics,” none of which were -ever specified, directed or ad-
vised\ on the making and use of the molotov cocktails
- (gasoline bombs) and other offensiye weapons used by the
_ rioters. ES one pale’ 5 oe ts
“The court should construe the meaning of unambigu-
ous language, pass on its defamatory character, and instruct
the jury accordingly. But where the language is ambiguous
or of\doubtful meaning there is a question for the jury.”
36 Tex. Jur. 2d 496, § 166; p. 482, § 156 of the same text
and cases cited under each. Fitzjarrald v. Panhandle Pub.
Co., supra. .
“To charge a person with or impute to him the commis-
sion of any crime for which punishment by imprisonment
in jail or the penitentiary may be imposed is slanderous or |
libelous per se.” 36 Tex. Jur. 2d 288, §7; EH. O. Merren
®ello..v. A. H. Belo Corp., 228 F. Supp. 515.
“Any written or printed language tending to degrade
a person in the estimation of honorable people, or imputing
‘to:him disgraceful or dishonorable acts, is libelous per se.”
36 Tex. Jur. 2d 297, §13. .
“The Janguage claimed to be defamatory mist be taken
as a whole. Thus, a newspaper article must be considered
_ in its.entirety in determining the sense in which its language
is used, and whether the article, or a particular statement
therein, is libelous.” 36 Tex. Jur. 2d 313, § 27. :
““Libelous per se’ means that written or printed words
- are so obviously hurtful to person aggrieved by them that
Appendix B-
Opinion of the Texas Court of Civil Appeals
‘they require no proof of their injurious character to make
them actionable.” Rawlins v. McKee, 327 S. W. 2d 633
(Texarkana Civ. App., 1959, ref., n.r.e.).
“Defamatory language may be actionable per.se, that
is, in itself, or may’ be. actionable per quod, that is, only on
e allegation and.proof of special damages. The distinction is
— based on a rule of evidence, the difference between them
lying in the proof ‘of the resulting injury. Language that ©
necessarily, in fact or by-a presumption of evidence, causes
. injury to a person to whom it refers is actionable per se. In
other words, the defamatory words must be of such a na-
ture that the court can presume as a matter of law that they .
will tend to disgrace and degrade the person or hold him up
to public hatred, contempt, or ridicule, or cause him to be
shunned and. avoided. Where the language is actionable
per se damages are conclusively presumed and need not be
proved.” 36 Tex. Jur. 2d 280, § 2.
. "To be libelous a publication: must be defamatory in
its nature, and must tend to injure or impeach the reputa-
tion of the person. claimed to have been libeled. The lan-
guage used, taken in connection with the facts and circum-
stances alleged by: way of innuendo, must be reasonably
- calculated to produce one & more.of the results mentioned
in the statutory definition; that is, it must have the effect
of injuring or tending to injure the person to whom it re-
fers to the extent of exposing him to public hatred, con-
tempt, ridicule, or financial injury, or to impeach his hon-
_esty, integrity, or virtue. ; |
“Tt is not necessary, however, that the language have
all the injurious or pernicious tendencies enumerated in the
' “statute; it is actionable if it has any of them. ...
a“ Pee NR me ee mt ae eee me
RT wens ." .
0! . x . @ 25a
; | ee ie Appendix B P
: Opinion of the Texas Court of Civil Appeals
“A publication that tends to subject the plaintiff to pub- _
lic contempt, or that impéaches his integrity-or reputation,
is libelous though it,does not charge him with a crime. — |
“The term ‘public hatred,’ as found in the statutory _ ;
definition, signifies public or general dislike or antipathy.”
36 Tex. Jur. 2d 285, § 6. i: Se
DAMAGES eo
In connection with special issue No. 9.the jury was in-
structed that it may take into consideration such damages,
. f any, to the reputation of the plaintiff and such mental
anguish, if any, and humiliation, if any, and embarrass-
ment, if any, which plaintiff raay have sustained as a direct
\" and proximate result of the statements inquired about. The
jury awarded $500,000.00. Wat, |
*-F vo our investigation and study of the‘record we are
unable to find any legal justification to disturb the award
of.damages. If any improper influences were present they
do not appear’ from the record. Under the pleadings the
appellee sought, damages, including exemplary damages, in
the sum of $2,000,000. ct see
_ “Mental suffering on the part of the person defamed is —
* one of theWirect results of avlibel or slander. Accordingly, .
_ injury to the feelings, humiliation, and anguish of mind are
ony, proper elements of compensatory damages, provided they
4 are the direct and proximate result of the defamation. This
suffering is classed as general damages, that are presumed
to have been sustained, and that, in actions for libel; are
* recoverable under a ‘general averment, without specific
proof that they were incurred, and, by virtue of statute, re-
. gardless of whether there was any other injury or damage,
6a °
Appendix B
Opinion of the Texas Court of. Civil Appeals
even though the publication was not libelous per se. ” 36
Tex. Jur. 2d 402, § 98. ce @
“The plaintiff is entitled to compensation for i injury to
. his character-or reputdtion caused by -the.defamation.... .
It follows that the jury, in fixing the amount of recovery,
may. consider the loss of, or injury to, character or repu-
- tation, even though there is no proof thereof nor any proof
of good character. .. .” 36 Tex. Jur. 2d 400 § 97: |
“In other words, a general allegation of ‘damages will
admit evidence of those damages naturally and necessarily
resulting from the defamation charged. .It is unnecessary
to itemize the elements of general damages; rather, the
- amount may be alleged in the aggregate. Thus, the plaintiff .
need not aver the nature, character. -of, extent of the mental
suffering caused, or even that he.thereby suffered: any
agony, but it is sufficient to aver the damages he sustained
by reason thereof. . . .” 36 Tex. Jur. 2d 445, § 126.
“Generally speaking, the damages resulting from a libel
or slander.are purely personal and cannot be measured by
any fixed standard or rule. The amount to be awarded rests
- largely in the discretion of the jury, or the court in a case
tried without a jury, and an appellate’court will not disturb
the verdict or award unless. it appears frdm the record to
- be excessive or the regult of eee prejudice, or other ;
improper influence. .
_ “In fixing the amount the j jury may take into considera-
tion the motives of the defendant, and the mode and extent
.~ of publication, . . .” 36 Tex. Jur. 2d 405, § 102.
| 7 :
/ EXEMPLARY DAMAGES
_ By counter-points the appellee contends the court erred
in setting aside the findings of the jury_in en to
ee Nani ttn ti sn th ts pennant» sane seen oneness eats atatsia a en - a
btn
e°@
27a’
, : ; . Appendix B
Opinion of the Texas Court of Civil Appeals
special issues Nos. 4, 8, 10. waa 11, which seeraces to malice
and exemplary damages. ¢
Issues Nos. 4 and 8 inquired if appellant 1 was actuated }
by malice, and malice was defined, “you are instrutted that st
by the term ‘malice’ is meant ill will, bad or evil motive,
or that entire want of care which would -raise the belief
that the act or omission complained of was the result of a
*. conscious indifference to the right or welfare of the person .
to be affected by it.”
The appellee had the burden of proving that the ap-
~ pellant’s act or acts.were such as to fall within the above
definition before he was entitled toa finding of malice and
exemplary damages.
The statement of: facts consists of eleven “ies and
2126 pages. The entire record has received our. close and :,
* sustained attention.
In view of all the surrounding circumstances, the rapid
and confused occurrence of events on the occasion in ques-
tion, and-in the-light of all the evidence, we hold that
appellee failed to. prove|malice as defined, and the trial court
was correct in setting aside said findings.
We think there is \yet another réason to support the
Court’s action in disregarding the jury’s answers to’ the
. issue relating to malice and exemplary damages, ‘namely, .
the lack of necessary pleadings and proof required under
the holdings in Western Union Tel. Co. v. Brown, 58 Tex.
170 (Tex. Sup., 1882) ; Wortham-Carter Pub. Co. v. Little-
page, 223 S. W. 1043, p. 1046 (Fort Worth Civ. App.
1920, no writ hist.), and Fort Worth Elevators. Co. v.
Russell, 70 S.-W. 2d 397 (Tex. Sup., 1934). .
The record leaves some doubt as to whether A. P. is
an incorporated.or an unincorporated association. It doe
ee
% '
- cd
, aera Geers tee emeaseczonet bi
etn 0 Oe oe ee oe ~
- 28a e >
Appendis B “8
Opinion of the Texas Court of Civil Appeals
appear, however, dati t its composition, the manner ‘in which
it functions, and its organizational set-up,is more akin to
a corporation thar not and that the holdin 5S in the above
cited cases would be applicable.
We think the record i in this case will support our view.
Certai ly, A. P.'is not an individual. Having rio mind
and ‘being an entity only by a fictionof law, it must be held
_ incapable of entertaining actual or express malice unless the
requirements of the holdings in Fort Worth Elevators Co. —
v. Russell, Western Union Tel. Co. v. Brown and Wortham-
Carter Publishing Co. ‘v.: Littlepage, supra, are complied
with. A. P. is referred to as a corporation in the appellee’ s
brief. \
. \
“..
_Jury Misconduct *
We find no error in the action of the Court in 1 over:
ruling the appellant’ s amended nigtion for new trial because
of‘alleged misconduct of the op
- During a general discussion of the case a juror re-
marked that the A. P. (or news media generally) was
alWays ‘hurting someone by the printing of false or mali-
cious reports or words to this effect. There was corisider-
able discrepancy in the testimony of the five jurors called
to testify on the rhotion for new trial as to whether the”
reference was to the A. P. or to news media generally.’ It
was a casual statement. “Nobody made any comment at all” -
about it. It is undisputed that it was quickly dropped. Who
* made the statement, which jurors or how many probably
heard it or specifically at what stage in the proceedings the
statement was made was not shown. It was dropped and
not again mefitioned. The j Jury discussed and answered the
R au ee ee ere
a path te we we hnweey ashe wens
. NE A
29a
ee |
Opinion of, the Texas, Court of Civil Appeals
-issues*in order. Théy were 11 to 1 on the issues preceding
those relating to malice and exemplary damages. While
discussing these issues a remark was made that the full
amount should be awarded because the A. P. had plenty of |
money and. it was mentioned “about the Georgia football
coach (Wally Butts) collecting.” The jurors were in dis:
pute as to.whether the statement concerning Butts was
ever made. It is without dispute that the statements were
made after the jury* had already found damages in the
sum of $500,000 and were considering the issues on malice
‘ and’ exemplary damages. :
_ The juror who was the last to agree on the $500,000 -
was the juror who stopped the ‘discussion as to how much
_ money the Press had. He pointed out that it did not make
any difference and was out of order. The matter was
promptly dropped. The only answers which could have been
influenced or affected by such statements, if any, were those .
to.the issues on malice and exemplary damages and these
findings of the jury were disregarded by the Court on other
grounds in the rendition of judgment. .
In order to justify a new trial under Rule $27, T. R.
C. P., the movant has the burden of establishing to the
satisfaction of the Court that it reasonably appears from
the evidence both on the hearing of the motion and the
trial of the case and from the record as a whole that in- - .
jury probably resulted by reason of the. alleged jury mis-
conduct. The appellant failed to meet its burden under .
_ this rule. |
The trial court .in its findings of fact and conclusions
of law found that none of the statements singly or col-
lectively induced any juror to change an answer or vote
differently than he would otherwise have done. That there |
“30a
Appendix B ~ =
Opinion of the Texas Court: of Civil Appeals
was no showing of probable injury to the appellant because
of such statements.
“When a trial court hears the testimony of jurors on
an issue of misconduct, alleged to have occurred during
the jury’s deliberation upon its verdict, he is accorded the
_ ‘same latitude in passing upon the credibility of the witnesses
and of the weight to be given to their testimony as the
jury had upon the trial of the original cause. If there be
any inconsistencies or contradictions in the testimony of a
witness upon the hearing of a motion for new trial, it rests
within the sound discretion of the trial court to harmonize
and reconcile such conflicts so far as possible. A juror’s
testimony upon such hearing may be so contradictory and
‘nconsistent that the trial court in exercising its privilege
to pass upon the credibility of ‘the witness may be justi-
_ fied in disregarding his entire testimony. Carl Construction °
Co. v. Bain, 235 Ky. 833, 32 S. W. (2d) 414.” Monkey -
' Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S. W..2d 770
(1932). oo
In our opiniorr the alleged improper statements, when
viewed in the light of the evidence on the motion for new
trial and on the trial of the case and on the record as a
whole, did not probably result in injury to defendant. Rules
327 and 434 T. R. C. P. | es .
Having considered each of the appellant’s points of
error and the cross-points raised by the appellee and hav- .
ing concluded that each should be they are each and all
accordingly overruled, and the judgment of the trial court
is afirmed. .
| Per Curiam .
—
APPENDIX B et
Opinion of the Trial Court
Cuas. J. Murray -
District Judge
17th Judicial District of Texas
Civil Courts Building
Fort Worth 2, Texas
ma | July 29, 1964
Mr. C.J. Watts, Attorney
. 219 Couch Drive les
- Oklahoma City, Oklahoma
Mr. William Andress, Jr., Attorney
¢ 627 Fidelity Union Life Building -
Dallas 1,Texas ;
| | . Mr. J. A. Gooch, Attorney
1800 First National Bank Building
Fort Worth, Texas
Gentlemen:
eight, ten and eleven.
~~
_ Tam entering judgment for the plaintiff on the jury
verdict as to special issues one, two, three, five, Six, seven
and nine, and judginent for the defendant as to issues four, .
At the time the charge to the jury was being prepared, .
you will recall I expressed the opinion that the alleged libel- -
Ous statements contained in special issues one and five were
Statements of fact and not opinion, and, at least as to the
Statement set out in issue number one, was a: charge of a
commission of a crime. I submitted the defense of truth as
_ to the: statements, and the jury found that they were not
substantially true. I believe there is evidence to support
these findings. I now have some doubt as to whether I should
| 32a
. Appendix B
Opinion of the Trial Court
have submitted the statement, “Walker assumed command
- of the crowd,” because it’ does not accuse Walker of the
commission of a crime. However, in view of my decision as
to special issue number one, this is immaterial. |
_ I submitted issues as to fair comment and good faith
(despite my then. expressed opinion that they did not con-
- stitute defenses to.a statement.of fact charging the plaintiff -
with commission of a crime) so as to get jury findings and
thus avoid a new trial in the event an appellate court dis-
agreed with«my conclusions. Since the jury answered issues
two,, three, six and seven as they did, I concur with these
answers as a matter of law. |
Turning now to issues four, eight, ten and eleven, I find
there is no evidence to support the jury’s answers that there
was actual malice by Associated Press in publishing the —
stories of October 2 and 3, 1962. As you will recall, I also
expressed doubt when the. charge was being prepared.as to
whether I should even submit malice and did so only to get
a jury finding as I did on the defendant’s-claimed defenses
_ of fair comrhent and good faith. :
Under Texas Law, the news stories complained of are
not of themselves evidence of malice without further proof.
Plaintiff claims that malice is showm by the failure of the
Associated Press to check the story written by its young.
reporter, Van Savell, becausé there was a conflict between
the story as written, and as related by Savell to Thomas,
an AP employee in its Atlanta office. This alleged conflict
related only to whether General Walker led a charge against.
the federal marshals before rather than after his speech to
the students on the Confederate Monument. I fail to ascer-
tain how the failure to check such a minor discrepancy
could be construed as that entire want of care which would
33a
Appendix B .
_ Opinion of the Trial Court
“amount to a conscious indifference to the rights of plaintiff.
Negligence, it may have been; Ialice, it was not. More- _
over, the mere fact that AP permitted a young reporter to
cover the story of the riot is not evidence of malice. Wisdom
and good judgment do not necessarily ‘come with age, nor
are they necessarily denied youth. In my opinion: New York
Times vs. Sullivan, 11 L. ed. 2nd 686; Wortham-Carter
Publishing Company vs. Littlepage,; 223 SW 1043 and
Fitzjarrald vs. Panhandle Publishing Company, 228 SW
2nd 499, support these conclusions. :
. Plaintiff’s (sic) urge that this case is comparabl¢: to
United Press International, Inc. vs, Mohs (Eastland Court
of Civil Appeals—unreported) decided on June 26, 1964. I
do not agree. In the UPI case, Miller, the night editor of
UPI, knew that another story had been written at and sent”
from his UPI office the same night as the second story found
to be libelous. The first story contained no statement that
Mohs had been ordered arrested and handcuffed; that Mohs
had been caught lying: or that he had been charged with
_ any offense for landing-his plane on White Rock Lake in.
Dallas. Between the time this first story was written and
sent from UPI’s office, someone in this office called the
police headquarters and learned that as far as the police
knew, Mohs had not been charged with any offense. Miller
himself, nor anyone in his office, made any attempt to verify .
' the facts of the landing on the lake, other than the call to
police headquarters, yet Miller then distributed the second.
story which said that Mohs had been arrested, handcuffed
and charged with violation of a city ordinance for landing
on the lake. None of this was true. This second story was
.based on information received from one DeHarrow. Miller
_knew the story (the first one) previously written in his
office was materially different from the story related by
- Appendix B
Opinion of the Trial Court .
DeHisrrow (the second story). Hie had many rato to,
* question the truth of the story attributed to DeHarrow, but
made no attempt to check it. The Eastland Court ‘found. .
that\these facts raised jury issues “as to whether there was
sucha want of cafe as could raise the belief that his acts
(and thus the acts of UPI) were the result of a conscious
indifference to the rights of Mohs.” ~
As I have stated above, in the Walker, case the only :
discrepancy was whether gW: alker ‘led a charge before or
_ after his ‘speech on the monument, and not’ whether he did.
_or did not lead.a charge at all. This eveaenet falls short of
that set out: in the UPI vs. Mohs opinion. | ~
Since I have determined that there is no actual malice
in this case, the question arises as to whether the rule of
New York Times vs. Sullivan (which prohibits a public
official recovering damages for libel when there‘is no actual _
- malice) should apply to a public figure such as plaintiff.
If it does, then the entire jury verdict must be set aside,
and judgment entered for defendant.
The evidence is undisputed that General Walket was a
public figure at the time of the riot on the Old-Miss Campus. _
” Freedom of the Press is perhaps the most important
protection against tyranny that we find in a free society.
Without it, the public could not know whether one’s right .
to speak, to worship his creator as he chooses or to enjoy a
fair trial had been abridged. Americans everywhere depend
on news media of all types to provide accurate information
- . gn’ the daily affairs of men and nations. This imposes a
great duty and responsibility on‘ the news gathering and .
distributing agencies of this country, and they should be
rrotected: to*the extent. necessary for them to properly ©
function.
\
ee EHR
Ae tne hI CTI a l hile ns Be.
35a
me Apnendiea BD
Opinion of the Trial Court ‘
Monever: T see no compelling reasons of public policy
requiring additional defenses to suits for libel. Truth alone
should be an adequate defense. The Sullivan case is limited,
and I feel it should®be limited, in its application to public
officials. It does not apply to this case. P
Jury findings:as to issues four, eight, ten and eleven are
set aside, and judgment ill be entered for Cgpaint 3 in
the amount: of $500,000. costs.
Very, truly yours, ae |
/s/ Cuas. J. Murray
Charles J. Murray, Judge
17th District Court
CJM:oec:
ba
36a .
APPENDIX C. 2 a
Wa a Portions of Record Raising Constitutional
- ~— —_— Below | '
Parngraphs Il, V end VI odie Second’ Octgios!
Amended Answer of Defendant, The Associated Press,
PP- 1 and 6-15 (Transcript, pp. 21 and —
IN THE
"DISTRICT COURT OF »
-TARRANT COUNTY, TEXAS
177TH Jupicat District
“No. 31741-C.
Pay Ss ii — : ; : ~
-Epwin A. WALKER ;
2 ie
foe. US.
Tue AsSociATED Press
di.
¥
>
SECOND AMENDED ORIGINAL ANSWER OF DEFENDANT,
. THE ASSOCIATED PRESS te
Now comes defendant, The Associated bess sind makes
. anid files this its Second Amended Original Answer directed
to Plaintiff's Second Amended — and says:
. + *
XS
ee wt “pemee aE
37a ee
Appendix C- Soe
Paragraphs III, V and VI of the Second Original Amended ~
Answer of Defendant, ‘The Associated Press, Pp 1 and
6-15.(Transcript, pp. 21 and 26-35) =~
~ By w&y 0 f forth answer ida and without waiving
- any of the <a pleas, defendant, The Associated Press,
* , ., would respectfully show to the Court and the j jury that the -
plaintiff is not entitled to recover damages i in this cause of
any nature for each and all of the fdllowing reasons consider-
. . ing all the material facts and circumstances setromating the
= plaintiff's piace claim of damage:
a | ( . ) ‘
Plaintiff By his own statements in shinitinins filed in this ©
cause has alleged that he resigned his Army Commission in °
order to speak out and install himself as a leader-and ublie—-
* - ~ figure. Plaintiff, Edwin A. Walker, voluntarily injected him-
self‘into a situation of turmoil, resentment and excitement °
4 ‘ in Mississippi.and‘of great national publicity and interest
j ‘ everywhere at the time he uttered certain public <catements,
| _ more fully hereinafter .allegéd, on television, radio and to.
a newsmen_and by his subsequent trip to Jackson, Mississippi,
‘and Oxford, Mississippi, at the very height of such tension
and turmoil between September 10 and October 1, 1962.
23 os ae |
ae The publications complained of in this action insofar as’
| the same consist of comments were and aré fair comments
made in good faith upon factg which related to matters that
'. were and are affairs ‘of public interest, importance and con-
le ~ cern and related to acts and ut ances of plaintiff, a public
' figure, in public places and at p ic meetings. _
>
_—
| «Appendix Res | ( |
_ Paragraphs III,V and VI of the Second Original Amended
. Answer of Defendant, The Associated Press, pp. 1 and
6-15 (Transcript, pp. 21 and 26-35 2 at 5
(a) The background and events int¢ which Walker ir in-
jected himself are set forth. in the following -paragraphs. ss
(b) On:or about May 31, 1961, one James H. Mere- —
dith, a-colored person, filed a complaint in the’ United States
District Court,eSouthern- District of Mississippi, and on
behalf of himself and all other colored students in the State’
of Mississippi similarly situated, against Charles D. Fair,
President of the Board of Trustees of the State Institutions.
of Higher Learning in the State of Mississippi, and others
_ connected with the University of Mississippi, seeking admis-
sion to said University. Thereafter, and on or about Feb-
ruary 3, 1962, the United States. District Court for “the
Southern District of Mississippi rendered a decision re-
ported i in 202 F. Supp: 224, dénying Meredith — of ad- . ms
mission to the Uhiversity of Mississippi.
Thereupon. Meredith appealed to the United “States
Court of Appeals for the 5th Circuit,.at New Orleans, and —
on or about: June 25, 1962, said Court rendered a decision:
* . » (305 F. 2d 343) in which said Court reversed the decision
of the United States District Court, thereupon remanding -
said action, with directions fo the United States District
. Court for the Southern District of Mississippi to grant —
‘forthwith the relief prayed for by Meredith and to issue
a permanent injunction against each and all of the defend-
" _ ants in said suit and all persons acting in concert with them,
as well as all persons having knowledge of said decree, and
_ directing and compelling admission of the said Meredith :
r to the University of Mississippi as a studefit. -
%
—_ eee EEE
Oa en nwt We ON Py PT
4 Pr
-
\ 39a
A ppendix CG’.
Paragraphs I Hl, Y and VI of the Second Original Amended
Answer of Defendant, The Associated Press, pp. 1 and . |
<— O15 (Transcript, pp. 21 and 26-35 )
(6) Thereafter, and on or about July 26, 1962, the
United States Court of Appeals, 5th Circuit, at New
Orleans, vacated certain stay orders signed by Federal
Judge Ben F. Cameron, and further directed the U. S.
District Court for the Southern District of Mississippi to‘
. enter the judgment and the injunction as theretofore ordered
- . (306 F. 2d 374). On July 28, 1962; the said United States
. Court of Appeals for the 5th Circuit, at New Orleans, also
entered a certain interim order Je the- same effect, ?
}
(d) Subsequently Judge Ben F. ‘Caineron issued three
/“ other successive stays.of éxecution of the mandate of the
/ United States Court of Appeals, 5th Circuit, which ordered
the admission of Meredith to the University of Mississippi,
= said stays to_operate pending an appeal ‘to the- Supreme
Court of the United States. On or about September 10, -
1962, Mr. Justice Black of the U: S. Supreme Court entered.
_anorder (1) to vacate the orders of Judge Ben F. Cameron,
. and (2) that the judgment ‘and mandate of the Court of
Appeals for the 5th -Circuit at New Orlearis should be
obeyed and. immediately carried out, and (3) that pending -
‘any appeal, the parties were enjoined from taking any steps
to prevent .enforcement of the Court of Appeals, Sth
Circuit, judgment and mandate.
(e) On or about September 13, 1962; the United States: :
Court for the Southern District of Mississippi as directed |
by-the U.’S. Court of Appeals, Sth Circuit, at New Orleans,
, - issued an injunction and ordered that the said Meredith be
admitted to the University of Mississippi forthwith.
”-
XY
\
{
er
A poeadie C 2
Paragraphs Il, y and VI of the Second Original Amended 2°
Answer-oftDefendant, The Associated Press, pp. ‘1 and
6-15 ( Transcript, pp. 21 and 26-35) |
(£) On or about September'20, 1962, the said Meredith
- appeared on the campus of, the University of Mississippi. |
-accompained by U..S. Marshals for the purpose gf register-
ing as a student pursuant to the orders of. the United States
Courts above set forth, but’ the Governor of Mississippi,’
the Honorable Ross Barnett, then and there: rejected ‘the
application of the said. Meredith to the vray of Missis-
sippi. | :
(gy Apsin, and en or about fisaseidiner 25, 1962, the
_said Meredith appeared at the offices of the Board of ‘Trus-
tees of State Institutions of Higher Learning; at, Jackson, | .
< Mississippi, for the purpose of registering as a student pur-
suant'to the prior orders of the United States Courts. When
Meredith sought to enter the offices, as, aforesaid, the Hon-
‘orable Ross Barnett, Governor of the State of Mississippi,
and certain officers acting under his direction, again barred ©
._ the said Meredith and denied him admission to the Uni-
versity of ‘Mississippi: ‘On ‘or about September 26, 1962,
the said Meredith sought to enter the campus of the Uni-
versity of Mississippi where he was bafred from so enter-
ing by the Honorable Paul: B. Johnson, Jr., Lieutenant
Governor of the State of Mississippi, and certain state
‘police acting under his orders, thereby denying: the afore-
said Meredith admission to the University of Mississippi.
On September 25, 1962, the United foe Court of Appeals
for the 5th Circuit, at New Orlearis, entered another re-
_ straining ‘order against the Honorable Ross Barnett, Gov-
ernor of the State of Mississippi, and other named officials
in said State, and all persons in active concert or in partic-
©
fe tachi slat hoon AN om Bes Paine. oe one
Foe se ~ 41a
~ on
"Appendix C
Paragraphs III, V and VI of the.Sécond Original Amended .
- Answer of Defendant, The Associated Press, pp. 1 and
6-15 (Transcript, pp. 21 and 26-35 ) i> A
versity of . Mississippi. | | :
fh): Thereafter, on the same day, the United States
~~ Cofart of Appeals for the 5th Circuit issued its orders re-.
' quiring the aforesaid Ross Barnett, Governor of the State
' of Mississippi, and the Honorable Paul B. Johnson, |
Lieutenant Governor of the State of Mississippi, to appear | —
béfore said Court aind show cause why they should not be.
held in civil contempt for -willfully disobeying the orders of
the United States Courts and barring the ‘admission of ©
Meredith to the University of Mississippi, and on or about
_ September 28 the said Court entered its judgment arid order
adjudging the said Ross Barnett and. Paul ‘B. Johnson, Jr:
guilty of civil coritempt and lévied fines to continue on a
daily basis unless on on before October 2,.the said Governor
and Lt. Governor should show to the Court that they had
fully complied with all restraining orders of all the United
_ States Courts, and that they had’ notified enforcement offi- .
cers in the ‘State of Mississippi to cease and desist from
interfering with the orders of the aforesaid Courts and t
cooperate with the officers and agents of the United Statés
in the executfon of all drders and injunctions to the end that _
Meredith would be permitted to register as a student at the
University of Mississippi. .
. (i). That the attempts: of the said James H. Meredith
- toenter the Yniversity of Mississippi and the actions of the
authorities in Mississippi preventing his entry, and theeac-
al
. > uw
tions ga various United States Courts in making and
4
ae 3 beg a. i) i ee
“ipation therewith, from interfering with or obstructing in .
‘any manner. the admission of the said Meredith to the Uni-
4 — RE A EI REIS ONT i sii
42a
. ‘s Appendix Cc :
Paragraphs 111, V and VI of the Second Original Amended
Answer of Defendant, The Associated Press, pp. 1 and
6-15 (Transcript, pp. 21 and 26-35) ‘
e °
ma
entering said injunctions and mandates, as above set forth
in the preceding paragraphs, had all been given wide pub-
licity throughout the United States by newspapers, radio
and television, and were matters of general knowledge and
- affairs of great public interest and concern prior to Septem-
ber 30, 1962. The plaintiff in this cause knew, or reasonably
should have known of the court orders, injunctions and
mandates herein pleaded based on knowledge acquired from
an ordinary reading of the newspapers and reports from |
other news media and he also knew of the defiance of Gov-
_ ernor Ross Barnett, Governor of the State of Mississippi,
"and of the Lt. Governor towards the fulfillment,of the court
orders of the United States Courts above set forth.
o | (3) c
The plaintiff, the former Major General of the Army of
the United States, following his resignation therefrom for’
the stated purpose of speaking out in protest as a private
citizen, had made frequent public statements and had made
an unsuccessful: venture into politics as ‘a candidate for
Governor of the State of Texas. x
Plaintiff was a well known public figure because of his
long military career, his commands and duties with the
Army of the United States,-his role as Commanding Gen-
eral of the troops in the Little Rock, Arkansas, integration
crisis in 1957, his resignation from the Army of the United _
States with the’ rank. of Major General with the ‘avowed
statement and purpose of: being able to protest and take a
/ | ..
43a >
Appendix C |
‘Paragraphs Il, V and VI of the Second Original Amended _
‘Answer of Defendant, The Associated Press, pp. 1 and
6-15 (Transcript, pp. 21 and 26-35) : -
. ’ \
_ Stand and position in matters of public interest and affairs,
and his candidacy for Governor of the State of Texas in
_.1962. With such background as a public figure, the plaintiff,
~ during: the critical times involved herein, between Septem-
ber 10, 1962 and October 1, 1962, injected himself into the
Mississippi crisis with the request and/or notice for fre-
quent press releases or conferences, from Dallas, Texas, -
Jackson and Oxford, Mississippi, and thereby {nvited com-
- ment as to his activities. His public utterances and state-
ments were all in protest ahd opposition to duly constituted
governmental and judicial authority and relating to. the
admission of Meredith to the University of Mississippi,
. « and were in violation of the injunctive decrees issued by the:
United States Courts,’as herein set forth, and in favor of
the positions then being taken by Governor Ross Barnett
and other officials in Mississippi who were seeking to ob-
struct Meredith’s entry as a student at the University of
Mississippi. | Soe )
Notwithstanding such knowledge, the plaintiff by radio
and other news media, beginning on or about’ September.
27, 1962, and thereafter, called for Americans 10,000
strong from every State in the Union te go to Mississippi
_ and rally behind Goverfor Barnett in his stand against ad-
mitting Meredith, saying, among other-things, “It is now or
never. Bring your flag, your tent and your skillet.”
The plaintiff, Edwin A. Walker, further injected him-
“self into-the crisis in Mississippi by proceeding to Jackson,
_ Mississippi, on or About September 29, 1962, when he thade
_ further press releases and statements,,and by tien, proceed-
~ eee we ee — ~
.
dha
Appendix C
Paragraphs III, V and' VI of the Sécond Original Amended
Answer of Defendant, The Associated Press, PP. 1 and
6-15 ( Transcript, PP él and 26-35)
. ing to ‘Oxford, Miss., is he held a further press confer-
ence on. Séptember 30, 1962, at all-of which he reiterated
his previous position. ,
At about 4:30 P. M. on ae Sees of Stgtenter 30, .
1962; the U. S. Marshals under orders to enforce the judg-
ments, injunctions and mandates of the United States
Courts for the enrollment of Meredith as a student at the
University of Mississippi, proceeded on to. the campus at
Oxford, setting up a ring substantially around or in front
of the Lyceum Building on the campus, At about the same
time, Meredith was escorted to another part of the campus.
Immediately after the arrival of the Marshals, students and
‘others began tq congregate in the Circle and in the streets
adjacent to the Lyceum Building, facing the Marshals, at
first taunting them with jeers and remarks, subsequently .
throwing lighted cigarettes and missiles at the Marshals
_ and at the vehicles in which they arrived. The temper of
the crowd became worse and more unruly, and at about
_ 8:00 o’clock P. M. tear gas was fired. Thereafter, the riot-
ing increased by the hour as the night progressed, resulting
in-injuries to many persons and much property damage to
personal property, automobiles and to the campus itsélf.
While the plaintiff was in Oxford, Mississippi, and on or
about. September 30, 1962, at about 8:00 o’clock P. M., a
proclamation was made by the tHen President of the United
. States to the effect that the Governor of the State of Mis-
sissippi and certain other officiais and other persons had been
-and.were willfully opposing and obstructing: thé enforce-
ay ment of the injunctions, orders and Jytigments of the United
45a
Appendix C
‘Paragraphs III, V and VI of the Sécond Original Amended
Answer of Defendant, The Associated Press, pp. 1 avid
6-15 (Trahscript, pp. 21 and 26-35)
States Courts and the President thereupon commanded all
persons engaged in such obstruction of court orders to
cease and desist and to disperse and retire peaceably forth-
with. In addition, the President of the United States made.a
TV and radio appearance on the same date at about 8 o’clock
P. M. in which he sought in substance the same compliance
with court orders. Notwithstanding said proclamation of
). the President of the United States and the appeal of the
_ President, the said plaintiff immediately thereafter pro-
ceeded to the campus of the University of Mississippi, at.
Oxford, arriving there at approximately 8:45 P. M. on the
‘night of September 30 and stayed on said campus for a~
period of several hours thereafter.’ Following the wide-
_ Spread dissemination of plaintiff Walker’s statements in the
press, T'V and radio, not only in Mississippi but elsewhere,
_ the plaintiff's very presence on the campus tended to in-
‘erease the emotionakexcitement, the explosive condition, °
the courage, ‘fervor and rage of the mob, thereby increasing
the dangers and damage from what at first had been a dem.
. onstration, to’a riot, mob violence, and to more organized |
‘and determined attacks upon the U. S.: Marshals. At the
time of the arrival of the plaintiff on the campus, there had
already been violence and injury to persons and property, all
_ of which was known to the plaintiff or should have been:
known in: the exercise of ordinary observation on the.
campus. On the occasion in question, the plaintiff was wel- -
‘comed by the crowd as its leader and he then and there made.
a speech which further excited and enraged the. mob and, at -
least on one occasion, the plaintiff did proceed as a part of.a
<a Le LTE SE
-$ 46a
- Appendix C =”
Paragraphs.II1, V and VI of the Second Original Amended
Answer of Defendant, The AsS#ciated Press, pp. 1 and
6-15 (Transcript, bP. 21 and 26-35 )
os ar
‘generalized movement towards the Marshals at the Senne
Building accompanied or followed by a crowd of ‘students
and others shouting and yelling dence Som of whom -
when close enough. to the Marshals hurled missiles toward
them. On many occasions during the. night in question,
plaintiff would move back and forth through the-Circle (an
* area in the vicinity of‘and near the front of the Lyceum .
Building where ‘the. Marshals were statiqned). He also
offered advice on how to make the tear gas bombs ineffec-
tive, and otherwise complimented, encouraged and urged
on the crowd of rioters to further protest.and « keep up ~
what they were doing, all of which resulted-in continual op-
position to duly constituted governmental and judicial auth-
ority including violation of. the injunctive decrees hereto-
fore referred to.
Therefore, each and all of the stafements complained of
by plaintiff herein are fair comment and are privileged. .- ~
a * .*
V.
By way of further answer herein and adopting all the —
allegations heretofore made herein, ‘this defendant, The .
Associated Press; denies that any malice was involved or.
intended on the part of this defendant in the publication of
any one or all of the articles or dispatches complained of, , ~
but was occasioned only by an ‘effort in good faith—actuated _
solely by a sense of duty growing out of the occasion—to
report to its members and to the public what this defendant
believed to be an accurate report of the plaintiff’s activities
_in the Mississippi crisis, and to make fair comment thereon,
- all of which is privileged.’
eresee aneayry poe wrtSonn RTT < ~ t . —— .
_ 47a.
Appendix C
Paragraphs II1,V and VI 0 f thg Secorid Original Amended
' Answer of Defendant, The Associafed Press, pp. 1 and
-15- ( Franscript, bp. 21 and 26-35) - :
i.
By way of further answer herein and adopting all of.
the allegations: heretofore made herein, this defendant -
denies that it was or is guilty of any conduct whic} would
authorize the allowance of any dainages, punitive or other-
wise, but would further say that the allowance of any dam-
ages herein would amount to a restraint and deterrent to
the publication of news and the freedom of the press as
tequired by the First and. Fourteenth Amendments to the
Constitutioh of the United States. The publications com- .
plained of were published and circulated by the defendant.
among thegeneral public; the information contained therein
is true; vamaceas the plaintiff, ‘2 public figure, and was
related to\public affairs and matters of great public con-
¢ern, and the publication was. made so that the public _
_ Should be informed, and the same was made ‘in good faith
and without malice, so that the same is privileged. Further,
the allowance of any damages under and by virtue of any
rule of law as applied by the courts of the State of ‘Texas
would be in violation.6f the foregoing Constitutional safe-
guards and would be constitutionally defidient. for failure
_ to permit freedom of speech and press which are guar-
_anteed by the Constitution of the. United States. The allow-
ance of any damages herein also would be violative of the |
Constitution of the State of Texas which prohibits the
abridgement of the freedom of the press in Article I, Pard-
graph 8 thereof. - ~~ | i s%
” APPENDIX e.
Defendant’s Motion to Disregard the oe s Verdict, and
. for Judgment Notwithstanding Said — PP- 1 and
“ft (Transcript, PP- 63 and 66) é
re IN THE. oo a ae RT |
ig ais = ‘DISTRICT COURT OF |
TARRANT COUNTY, TEXAS
oor. e _ 177TH Jupicat District
. No. 31741-C
' Epwin A. WALKER
US.
ASSOCIATED PRESS
+ >
s
DEFENDANT’S MOTION TO DISREGARD THE, JURY'S
_ VERDICT AND FOR JUDGMENT NOTWITHSTANDING
— VERDICT
To THE HonoraBLe Juce Or Sarp Court:
Now comes the ditectiont, Associated Press, and moves
. the Court to set aside and disregard the verdict ef the jury
and each and every finding therein, arid to render judgment —_.
“for the defendant and against the plaintiff notwithstanding A
such verdict, and as grounds therefor would respectfully
show as follows: ,
* * *
hat it Pn be tthe sabe 09 acs bn am
49a
Append c
Def endant’s M ation tg Distegard the Jury’s Verdict, and ae
for Judgment No tanding Said Verdict, pp. 1 and
4.(Transcript, pp. 63 and 66) ry
| | 16 roles
' Notwithstanding: the verdict of the jury, the Court
‘should render judgment for- the defendant because any oF
judgment awarding money damages to plaintiff against
defendant would constitute a restraint and deterrent to the.
publication of news and a restraint, deterrent and denial-of
the freedom of the press as guaranteed.to defendant by the © sg
First and Fourteenth Amendments to the\ Constitution of .
’ the-United States of America.
50a
~ APPENDIX Cc
, Defendant’ Qriginal Motion for New Trial, p. 1
7 _ (Trenseript, p- 73)
_ot INTHE |
‘DISTRICT C COURT OF
TARRANT COUNTY, fEXAS |
gg Juprctar District _
No. 31741- ee
aN mye oO
°
* ~
EpwIn - WALKER
*
“ “US.
on = THE AssocIATED PRess r
a ee i eee
i ei
ee
DEFENDANT'S ORIGINAL MOTION FOR NEW TRIAL
To THe HowNoraBLe JUDGE Or Sarp Court:
Now comes the defendant Associated Press, after entry .
of judgment heréin on August 3, 1964, and makes and files
this its Orginal Motion for New Trial, and moves the Court
to set aside the judgment heretofore renderéd against it and
to grant a’ new trial hereitl, “upon the, following grounds,
to-wit: i ie: ’
ve oe 2%, ‘- . . .
The Court erred in overruling the motion for instructed
verdict made by defendant after plaintiff had rested. :
/- The Court erred in overruling the motion for instructed
verdict made by defendant after both sides had rested.
2 ‘ 3. : ;
_ ‘The Court erred in overruling Grounds 1, 2, 3, 5, 6, 7,
- 8,9, 11, 12, 13, 16 and 17 of defendant’s motion to disre-
. gard the j jury's verdict, and for judgment notwithstanding ~
said verdict.
a
APPENDIX C |
Defendant’s Amended Motion for New Trial, PP. 1 and 3
(Transcript, pp. 78 and 80)
IN THE
™ DISTRICT COURT OF
| | TARRANT COUNTY, TEXAS.
17TH JupicraL District.
No. 31741-C.
©,
~ *Epwin A. WALKER
o>
x ong US.
ee THE AssocraTED Press
+. da
¥
DEFENDANT'S: AMENDED MOTION’ FOR NEW TRIAL
To Tue Howcaanin Jupce OF Sarp Court:
Now comes defendant, The Associated Press, and with
leave of the Court first had and obtained makes and files
this its Amended Motion for N ew Trial,.and would respect-
fully show-as follows :
i . hes ) -
| aoe 8 :
The Court erred in overruling Galen I, 2,.3, 5, 6,°7, .
8, 9, 11, 12, 13, 16 and 17 of Defendant’s Motion to Disre-
gard the Jury’s Verdict and for Judgment Nothwithstand-
Sd
rd
a
\
i. Sta
A phendis- c
Defendasit’s Amended Motion for New Trial pp. 1 and 3
(Franscript, pp. 78 and os
| ing such Verdict for: each and all of the reasons therein set
forth, which said Grounds read as follows: '
Se EN ne
_ © (16) Notwithstanding the verdict of the jury, the Court
should render judgment for the defendant because any judg-
_ment awarding money damages.to plaintiff against defend- °
ant would constitute a restraint and deterrent to the publi-
cation of news and a restraint, deterrent and denial of the
-freedom of the«press as guaranteed to defendant by the
First and Fourteenth Amendments to the Constitution of
the United States of America.
'
.
-~<
Sh
- _APPENDIX € _
, Brief of Appellant The’ Associated Press ‘im the Texas
’ .° Court of Civil Appeals, pp. 1, 9 and 73-85
No. 16,624 |
. IN THE
COURT OF CIVIL. APPEALS
For’ THE SECOND SUPREME JUDICAL District oF TEXas
'- At Fort Worry
'
e
THE ASSOCIATED Press, Appellant
| wu.
Epwin A. WALKER, A Ppellee
/
as
FROM THE 17TH District Geurt oF
-TARRANT County, Texas
APPELLANT'S BRIEF :
* * 4 | : o \
POINTS OF ERROR | J
* * x
| 5.
The trial court erred in rendering judgment: for
plaintiff because defendant’s news reports, made with-
out malice, are protected from the claim of libel by
the First and Fourteenth Amendments to the Consti-
“tution of the United States, and such judgment there-
fore abridges defendant’s rights thereunder.
-
S4a
Appendix C
Brief of A ppellant The Associated Pressin the Texas Court
of Appeals, pp. 1,9 and 73-85
(Page 73-85)
* * *
. - FIFTH POINT OF ERROR (Restated)
The trial court erred in rendermg judgment for
plaintiff because defendant’s news reports, made with-
‘out malice, are protected from the claim of libel by
the First and Fourteenth Amendments to the Con-
stitution of the United States, and such judgment
therefore‘ abridges defendant’s rights thereunder.
(Germane to Ground I( 16) of. the Amended Motion for
New Trial).
‘seen AND AUTHORITIES .
Wide-Open Debate—A Profound National ,
Commitment
In a-series of public Statements, already quoted i in . this
brief, General Walker appealed to the world at large to rise
and stand by Governor Barnett in Mississippi. When we
are thus solicited. by radio: and television to help defy a
court order and are info that the Supreme Court of |
the United States consists“of anti-Christ conspirators who
have betrayed the Nation; we are not to suppose that this
is double-barreled insurrection and calumny of the most
s and irresponsible sort. It is only General Walker
exercising his constitutional rights to say what he pleases
- about others.
ee | 55a . _ re
Appendix C
| \ Brief of A ppellant The Associated Reessin the Texas Court
| of Appeals, pp. 1,9 and 73-85 W
-- But any comment on his activities provokes the indig-
nant cry of “foul”, .and it is then that we are to forget and,
ignore the public battle of national controversy into which
‘he charged, calling with caustic invective for others to
follow, and are to’ concentrate instead on the wounds with
.
~
which he says he emerged from it. "sos
7 And it is just such a claim to unilateral. privilege of
_ expression that is repugnant to, and underscores the wisdom
of, our “profound national commitment to the principle
‘. that debate on public issues should be uninhibited, robust,
and wide-open . . .” New York Times Co. v. Sullivan, 376
U.S. 254, 11 L: Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R. 2d
1412; Garrison v. Louisiana, ... eS ee ; 13 L.-Ed.
- 125,85 S.Ct. ...... 7 | |
In the Times and Garrison cases, ‘supra, the Supreme
‘Court of the United States in 1964 held that truth may not
be the subject of either civil or criminal sanctions where: a
. discussion of public affairs is concerned. The court recog-
nized that erroneous statement is inevitable in free debate, . J
that-it must be protected if the freedoms of expression are
to.survive, and that only false statements made with a high ar
__ degree of: awareness of their probable falsity may be the
subject of eitherscivil or criminal sanctions.
_ In the Garrison: case, the Supreme Court, in applying
its decision in the Times case to a criminal libel conviction,
said, at page 133: , .
“... Truth may got be the subject of either civil or
criminal sanctions where discussion of public affairs
is concerned. And since\ . . erroneous statement —
is inevitable-in free debate, and . . . it must. be pro-
56a
_Appendis: C
~ Brief of A ppellant The Associated Press in the Texas Court
of Appeals, pp. 1,9 and 73-85 -
tected if the freedoms of expression are to have the
“breathing space” that they “need . . . to survive”
...' 376-U.S. at 271-272, 11 L. ed. 2d at 701, 95
ALR 24/1412, only those false statements made with
the high degree-of awareness of their probable fals-
ity ded ‘by New York Times may be the sub-
ject of either civil or criminal-sanctions. For speech
concerning public affairs is more than. self-expres-
sion; it is the essenée of self-government.” ~~
In the case at bar, there is no evidence of malice, and the |
’ trial court correctly so held. The court erred, however, in
refusing to apply the Times rule and render. judgment for
defendant regardless of the jury findings as to the truth of °:
the statements in question. The trial judge was of the view
that ‘the Times rule is limited to statements about public
officials, and hence did not apply.to the case at bar (Supp.
Tr.). Im this onceanien, we respectfully submit, the court
erred.
The decision of the Supreme Court in Garrison v. Loui-
siana, rendered in November of 1964, was not before the
trial court when it rendered judgment in the present action.
To be sure, the actual holding of the Times and Garri-
son cases applied to public officials sirice the persons. alleged
‘to have been libeled in those cases were public officials. It is
manifest,however, from the reasoning underlying the deci-
sions that they cannot be so limited. Moreover, to so restrict
_ the Times and Garrison rule would create constitutional
anomalies of the most serious kind and would, indeed, en-
gender the very dangers that the rule was intended to avoid.
amon te
57a
7 Appendix Cc | ae
Brief of Appellant The Associated Press in the Texas Court
of Appeals, pp. 1, 9 and.73-85
The touchstone of the Times and Garrison decisions _
was the premise that it is the purpose and. philosophy of the
First Amendment to insure free and uninhibited exchange
~ of ideas on.‘ssues of public imporfance, even though such
_ a freedom, like others, will result in some abuses. Quoting
from Judge Learned Hand, the court in the Times case said
that the First Amendment “ ‘presupposes that right conclu-
sions are more likely to be gathered out’ of a multitude of
tongues, than through any ‘kind of authoritative selection.
To many this is, and always will be, folly; but we have
_ staked upon it our all.’” The court then quoted the “classic
formulation” of the principle: |
““Those who won our independence believed .-. .
that public discussion is a political duty; and that
this. should be a fundamental principle of the Ameri-
| Can governmént. They recognized the risks to which
all human institutions are subject. But they knew
that order cannot be.secured merely through fear of
punishment for its infraction; that it is hazardous
to discourage thought, hope and imagination; that
fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path
of safety lies in the opportunity to discuss freely
supposed grievances: and proposed remedies: and
, that the fitting remedy for evil counsels is good ones.
Believing irr the Bower of reason as applied through
‘public discussion, they eschewed silence coerced by
law — the argument of force in its worst form.
Recognizing the occasional tyrannies of governing
ae
ne >< ae ° ~
o a 58a,
Appendix c
Brief of A ppellant The Associated Press inthe Texas Court
of Appeals, pp. 1,9 and 73-85
a
majorities, they amended the Coristitution so that
free speech and assembly should bé guaranteed.’ ”
Recognizing that “some degree of abuse is Liat :
_ from the proper ‘use of everything ; and in no instance is thi§
_ more true than in that of the press,” the court then, quoted
. from an-earlier opinion as follows:
“In the realm of*religious faith, and in that of
“political belief, sharp differences arise. In both
fields the tenets of one man-may seem the rankest -
error to his neighbor. To persuade others to his own .-
point of view, the ‘pleader, as we know, at times,
'_. resorts to exaggeration, to vilification of men who
‘ have been, or.are, prominent in church or state, and
even to false statement. But the people of this nation |
have ordained in the light of history, that, in spite’
of the probability of excesses and abuses, these liber-
ties are, in the long view, essential to enlightened
opinion and right conduct on, the part of the citizens
| of democracy.”
In short, the holding of Times wt Garrison is that, in
the long run, freedom of expression on public matters is of
riding public importance regardless of the excesses and
abuses that. may occasionally result; and that the individ-
ual’s daim for¢libel is pre-empted by the paramount public’
need for uninhibited debate.on public issues. ;
Moreover, the court’s heavy emphasis in the Times case
‘on the opinion of the Kansas Supreme Court in Coleman v. |
MacLennan, 98 P. 281, leaves no doubt that the decision ex-
ans “e €
-
5 Saye ian mn et awn
.
59a
| , ae | Appendiz C
Brief of Appellant The Associated Press inthe Texas C ourt -
of Appeals, pp. 1,9 and 73-85 + "
tends ‘tor all matters of great public concern. The court
quoted with — the ‘following from the Supreme
Court of Kansa
“Tn such a case the occasion gives rise to a privi-
lege, qualified to this extent: any one claiming to be
defamed by the communication must show actual.
malice or go remediless. This privilege extends to a: °
great variety of subjects, ang includes matters of
public concern, public men, an i candidates for office.”
- 78°Kan. at 723. -
In n Pouking v. News-S sadinats Co. o., 335 F. 2d 659 (2 Cir.
1964), an action for libel, tgé-court said, as an alternative
ground for its holding; that although the public official is -
_ the strongest case for the constitutional compulsion of the .
Times privilege with respect to the discussion of matters)of
public importance and concern, a candidate for public office .
would seem an inevitable candidate for extension, and that
once that extensiori. was made, the participant in public
debate on an issue of grave public concern would be next
inline | ys :
.
In its opinion, the court said, at pagt 671:
“Although the public official is the strongest case
for the corfstitutional compulsion of such a . privilege,
_ it i’ questionable whether in principle the decision
“can be so limited. A candidate for public office would .
.-° .geem an inevitable candidate for extension; if a
ae newspaper cannot constitutionally be held for defa-
mation when it states without malice, but: cannot
i
~ 60a
Appendix .C
Brief of Ap, ppellant The Associated Press in the Texas Co ourt
of oe pp. 1,9 and 73-85
prove, ‘hat - incumbent seeking re-election has —
accepted a bribe, it seems hard to justify holding it .
liable for further stating that the bribe was ‘offered
by his opponent. Once that extension was made,
- the participant in public debate on an issue of grave
public concern would. be next in line; thus, as applied
to the case in hand, if a newspaper could not be held
_ for printing Dr. Pauling’s charges that a member of
- the Atomic Energy Commission had ‘made dishonest,
untrue and, misleading statements to mislead the’
American people’ and that a United States Senator
is ‘the greatest enemy ~. . the United States has,"
as the New York Times case decided, one may won-
der whether there would be sound. basis for forcing
it to risk a jury’s determination. that it was only
engaging in fair criticism .rather than misstating
facts if it printed, falsely, but without malice, that
in saying all this Dr. Pauling was following the
Communist fine.”
w.
a Gilberg v. Goff; 251 NYS 2d 823, an action for libel,
e rule of the Times case was applied to a mayor’s law
rtner, who was neither an \officeholder nor a candidate
for. office, but who had entered a public controversy.as to —
whether a municipal code of ethics was needed to bar the
mayor and. his law firm from practicing law in the ry: Sori
In Pearson v. Fairbanks Publishing Co., Inc.,
Court of Alaska. Fourth District, No. 10,209), the action
was to recover damages for libel. The alleged libel-was. the
charge that ‘the -plaintiff; a newspaper and radio columnist,
was, an — Man of f the i rae Estate.” +
%
perior “
6la
; Appendix Cc. ate I nnn
Brief of Appellant The Associated Press in the Texas Court
: of Appeals, pp. 1,9 and 73-85
_ The court, in taking’ note of the Times. decision and -
holding that the publication complained of was not action-
able, said, in an opinion not yet published, that “Drew
Pearson, a public figure and int nationally known news- -
paper and radio columnist of no mean proportion, should’
‘occupy the same standing in the law of libel as Senator
Gruening whose cause he,was publicly supporting.”
In the case at bar, there can be no doubt ‘that the ques-
tion of school integration that came to a head in the Mis-
sisSippi crisis was a matter of grave national controversy
and concern. It was one of the most dominant and widely.
“debated issues of this century. In the ~Times case, the
_- Supreme Court referred to the integration question as “one
of the major public issues of our time . . .”, Cat 701). This
_ is also conclusively established in the record. The plaintiff
was a national public figure (S.F. 331, 486, 516) and a
recent candidate for publicoffice.. Hé knew that the ques-
* tion of integration was a matter of national controversy
and interest (S.F. 759) ; he knew that his going to Missis-
sippi would create considerable publicity (S.F. 922); he
sought that publicity; he knew that there was an explosive
situation on the campus and that feelings were high in
_ Mississippi (S.F. 922); and that thé Chief Executive of
the State was openly obstructing the mandate of the Fifth
_ Circuit"Court. His repeated television and radio addresses
called Attention: to himself and solicited support for the
' cause that he championed. That he deliberately and publicly
‘
became part and parcel of the controversy is not open to
question. -
62a
Appendix C
| Brief of Appellant The Associated Press in the Texas Court
" of Appeals, pp. 1,9 and 73-85
If the Times decision applies at all to matters of public
, concern arid participants in debate on’ public issues, it clearly
applies to plaintiff and his conduct in Mississippi. The pub-
lications complained of in the case at bar wére not mere
gossip about the plaintiff in some private capacity. The
defendant was reporting the crucial events at Oxford, and -
plaintiff's voluntary presence brought him within the area
of national controversy. As we have‘pointed out on pages
18-20 of this brief, prior to September 30, 1962 the U.S.
Court of Appeals had rendered its judgment’ ordering the ©
' admission-of James.H. Meredith to the University of Mis-
- SiSSippl. _ In furtherance thereof an injunction had been
issued enjoining the school officials: and. all persons acting ..
in concert with them, as well as all perséns having knowl-
‘edge of such “decree, from ———- with Meredith’s
"admission.
Despite these iuiieeiaien ordérs, Geiser Barnett con-
tinued to oppose the admission of Meredith to the Uni- ©
versity.
j “The plaintiff’s declared purpdse on the night of the riot
"—September 30, 1962—was to stand shoulder to shoulder
._ with Governor Barnett in opposing the orders of the courts.
. He was in Oxford to support the Governor’s position, and -
he occupied the same position from the standpoint of the
law of libel as Governor Barnett, whose cause he was pub-
licly supporting. :
It would be a constitutional anomal having ‘ neither
substance nor-shadow of basis in reason to hold on the one
hand that Governor Barnett is within the Times rule, which
Q3a
_ Appendix C
?
| Brief of Appellant The Associated Press in the TexasC ourt
of Appeals, pp. 1,9 and 73-85
he clearly is, and yet to hold on the other hand that those
who publicly rise to. stand beside. him, seeking with equal .
vigor and effect to rally public support for his cause, are
not. Logically, the Constitutional protection, if it is to exist
at all and have any fairness about it, must extend to the
area of public debate and to those who participate in it.
_ If the Times rule were to be limited to public officials,
a natignal press columnist or TV commentator could state
falsely, but without malice, that a public official was a thief
and clearly come within the ambit of the rule, but anyone
who dared to enter the debate by. publicly suggesting that
the columnist or commentator was a liar in so stating, would
be denied the same protection. This is scarcely wide-open
debate. A defeated presidential candidate-could spend the
ensuing four years rallying public support by defamatory
statements about the incumbent and enjoy the protection of
the’rule, but those who would criticize the challenger would
~-have to do so without it. Such an anomaly can hardly be
. said to comport with h the principle of uninhibited debate.
>
é
The Court can well imagine other examples, such as
labor. leaders, political party leaders, campaign managers,
national magazines, and countless others who wield broad |
public power and have wide public support ‘for themselves
_and those that they’ champion, but who hold no public office.
Surely it would be unthinkable to hold that utterances made
about. them are to:enjoy less protection than the clamor that
they are’ free to utter about public officials under the
Times rule. If the people are to be free to criticize the Gov-’
ernment and. those who comprise it, they must be free to
QO
' » * 64a
A ppendix C
ied of A ppellant The Associated Press inthe Texas C ourt
’ of Appeals, pp. 1, 9 and 73-85
¢
criticize the critics within the same latitude and under the
same rule of law. To hold otherwise would create an imbal-
ance of the freedom of expression and could conceivabl A
result in an atmosphere i in which an administration could
_ . be toppled by’a rising Castro who, by virtue of holding no
- office, enjoyed freedoms of expression about the Govern-
ment that were denied to those who would criticize him.
The repressing effect of a half million-dollar award
upon freedom. of expression is so patent, the inhibiting
effect upon the presentation of’conflicting and controversial °
political argument so plain, and the punishment for such
presentation so burdensome and oppressive that this Court .
may not, consistent with the First Ameridment, permit its
imposition. As the court said in the Times case:
“Whether or not a newspaper ,can survive a succes-.
sion of such judgments, the pall of fear and timidity
~_. imposed upon those who would give voice to public
criticism is an'atmosphere in which the First Amend-
ment freedoms cannot survive.” |
cx. Bontom Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ;
Marcus v. Search Warrant, 367 U.S. 7 17 (1961) ; Shelton
v. Tucker, 364 U.S. 470 (1960); Speiser v. Randall, 357, a
~ U.S8513 (1958).
Finally, on this point, the import_of the trial court’s
opinion is that though, free press is important,’so is accuracy,
- and that the need for accuracy “imposes a great duty and
responsibility”-on the press, in default of. the discharge of
which it forfeits its constitutional protection. (Supp. Tr.)
We were unable to ascertain’any rational basis for distingu-
\
65a
. Appendix C
Brief of A ppellant The Associated Press inthe Texas Court
ofA ppeals, pp. 1,9 and 73-85
ishing between “irresponsibility”—short of actual malice—
in réporting on public officials ‘and in reporting on other_
partidipants in public debate on public issues. Sere
Moreover, while accuracy and responsibility of report-
ing are unquestionably desirable, they are not prerequisites
to First Amendment protection. ‘As the court said in New
| York Times: .
“Authoritative interpretations of ° the First
Amendment guarantees have consistently refused to
‘ recognize an exception for any test of truth, whether
admitfistered by judges, juries, or administrative
officials—and especially not one that puts the burden °
of previtig truth on the speaker. * * * The constitu-
tional protection does not ttirn upon ‘the truth, popu- ».
_ larity, or social utility of the ideas and beliefs which
are offered.’ ”
The trial court’s thesis would be persuasive if the press op- -
erated by license Of the Government. The argument, how-
ever, overlooks the fact that we are concerned here with |
basic and fundamental constitutional rights that may not be
* forfeited, like a taxicab franchise, upon a supposed showing
that a “great duty. arid responsibility” have not been dis- ’
charged. |
a. .* «>
APPENDIX C
Reply Brief of Appellant The Associated a PP. 168 —
and 19-24 .
‘No. 16,624
»
. "IN THE
COURT OF CIVIL APPEALS |
For THE SECOND SUPREME JUDICIAL DISTRICT OF , TEXAS
AT FortH WorTH >
. THE ASSOCIATED Press, A ppellant
a , p - 4
Epwin A. WALKER, Appellee
REPLY BRIEF FOR APPELLANT
SOE ei Wa OO wt
‘
May It Please the Court:
ah * sae
Among other irrelevances, plaintiff seeks to bolster his
argument on this and other points by revealing to the Court
that defendant is a corporation that makes money, ‘a’state of
affairs something less, we believe, than sinister, even if it
were accurate, which it is not. Should the Court be inter-
__ ested in the organization and financial situation of the de-
fendant, the cases in the margin explain that it is a member-
: 67a |
| . Appendix C -
Reply Brief of Appellant The Associated Press,
/ oo pp. 1, 6-8 and 19-24
ship corporation, whose members are the newspapers that
subscribe. to. its services, and that it is not operated for
profit.’ |
The point. is really immaterial, however, because even
- if The Associated. Press were a profit making corporation,
that would have absolutely no bearing on any of the points
involved in this litigation. “Although the point plaintiff is
trying to make is admittedly fuzzy in this regard, apparently
plaintiff is attempting to infér that-anyone who makes a
profit from distributing news must beffenied both the fait
comment defense and the constitutional protection. Though,
of course most everything that is written: or published, in-
cluding most of plaintiff’s speeches, is for. profit and, indeed,
some publications even enjoy copyright protection, those
~facts have never had any bearing on the fair comment de-
_fense and the constitutional protection. Newspapers are sold
like any other commodity, yet even plaintiff concedes that
they are protected by Article 5432 and the Constitution.
Just how or why it is the plaintiff regards The Associated -
Press as being in some unique category we cannot under-
stand, and plaintiff does not explain. As'the Supreme Court
of the United States said in New York Times v.. Sul-
ivan, 376 U. S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710:
_“That the Times was paid for publishing the adver-
" tisement is as immaterial in this connection as is the
fact that newspapers and books are sold.”
____ ‘Natiohal Labor Relations Board v. Assaciated Press, 85 F. 2d 56,
affirmed 301 U. S. 103, 81 L.Ed. 953; REOS, Inc. v. Associated
Press, 299-U. S. 269, 81 L. Ed. 183 ;, the Opinion of the District Court
in United States v. Associated Press, 52 F. Supp. 362, which was .
> affirmed in 326. U. S. 1, 89 L. Ed. 2013; and Deineational News -
Service v. Associated Press, 248 U.S. 215,63 L. Ed. 211. ,
: 68a
| A ppendix C
Reply Brief of Appellant The Associated Press,
| pp. 1, 6-8 and 19-24 .
So, in the instant case, .the fact, if it be a fact, that The As-
sociated Press was paid for its news releases is as immaterial
as is the fact that newspaper reporters are paid by the news-
_ paper, or that the author of a magazine article is paid ws the
magazine.
If, as plaintiff would have it (Brief 3), defendant is in
the ‘same category as the supplier of printing ink to the.
newspaper, then of course defendant, like the ink supplier,
would not be responsible for the publication by the aewegaper
of which plaintiff complains.
. . .
The Constitutional Protection .
In his argument on the constitutional qu: stion, plaintiff
continues. his insistence that the defendant is without the
scope of the First. and Fourteenth Amendment protection
_ because it receives compensation for its mews releases. This
point has already been discussed earlier in this reply, and we
' will not here elaborate on it beyond pointing out that the
fact that. news may be treated as a commodity, for some
purposes at least, is as irrelevant here as‘is the fact that
. newspapers, books;.and magazines are also commodities.
At page 47 of his brief, appellee reminds us again that
The Associated Press is not engaged in the publication of
anything, which again is completely irrelev2nt to the consti-.
tutional protection that is‘ afforded to free expression of —
‘ thought. That The Associated Press is the author, rather
‘ than the publisher, of the two reports in question has nothing
to do with the constitutional questions involved..
..
tl»
Pe ee
J 3 , . ,
69a
Appendis C
Reply Brief of Appellant The Associated Press,
bp. 1, 6-8 and 19-24
In our main brief, we attempted to analyze the Times
and Garrison cases*; and we predicated our argument upon .
the reasoning employed. by the court in both cases. As we
there pointed out, the underlying basis for both decisions —-
was the premise that the purpose and philosophy of the First
Amendment was to insure free and uninhibited exchange of
ideas on issues of public importance and concern.
__ ,_ In response, plaintiff merely extracts from eath opinion
every reference to public officials and official conduct and,
parrots them in his brief. Plaintiff, of course, is entitled to
argue that both decisions are inapplicable here, but the argu-
ment finds.no support in the fact that the phrases “public ~
officials” and “official conduct” appear frequently in the
opinions. Such an argument is roughly analogous to con--
tending that a @ase involving a super market has no appli-
- cation to a department store because of the frequent -
references in the opinion to super markets. We respect- .
fully~submit that one must at least examine the reasoning .
in any case to determine its applicability in another, and
that plaintiff in this case has done nothing more. than
emphasize that public officials were involved in: both the
Times and. Garrison cases,. which hardly requires the -
three pages of brief that plaintiff devote to it. ar
- Plaintiff not only utterly ignores the rationale and the
basis for the holdings in both cages, he affirmatively mis-
states the holding in Garrison when he states on page 51 of
his brief that the court there held that “neither the court nor
2New York Times Co. v. Sullivan, 376'U. S. 254, 11 L. Ed. * :
686, 84 S. Ct. 710, 95 A. L. R. 2d 1412; Garrison v. Louisiana,
rere | S....., 13 L. Ed. 125, 85 S. Ct. (
’ ‘ Be» © »
70a
A ppendix at
* Reply Brief of Appellant The Associated, Press,
Pp. 1, 6-8 and 19-24
the Constitution protected libelous ptiblications, even in the
case of public officials.” It is obvious from a cursory. inspec-
tion of either opinion that the court dn each’ Gase held that
the See protect libelous publications made
_ about public officials, and indeed that that was the precise
holding in each case. The only limitation suggested by the .
majority in both cases was that the Constitution does not _
protect malicious false statements, i.e., ‘ “false statements -
made with the high, degree of awareness of their probable
falsity demanded by New Y ork Times : . .”; Garrison at
page 133. a.
-Moreover, in neither case did the court “draw the line” .
at public officials, as plaintiff tells us at page 53 of his brief, -.
nor was the constitutional protection “‘strictly limited” to
public officials, as plaintiff asserts at page 52 of his brief.
Obviously, the court was not required to draw any lines
because only public officials were involved in, both cases. -
Courts-draw lines in cases that involve situations determined
to be beyond the Scope of the concept involved. |
We respectfully submit that this Court cannot read the
’ opinions in Times and Garrison, and ‘particularly ‘the thor-
ough and painstaking analysis of the historical background
of free speech and press, without being deeply impressed
with the Supreme Court’s zealous determination to insure
the preservation of one of the most fundamental and sacred
_ ssafeguards that forms part of the very bédrock of this
’ Republic. It is scarcely conceivable that one could study
those opinions and find no more substance, no more depth,
and no more principle in them than plaintiff professes i in his
brief to have discovered. That which plaintiff has missed
7la
© oe
ly AppendigC 8 + Le
Reply Brief of Appellant The Associated Press,
pp. 1, 6B and 19-246
has.not escaped the. attention of the courts’ in Pauling v. -
| News Syndicate Co., 335 F. 2d 659 (2 Cir, 1964), Gilberg
_ v. Gofft, 251 NYS 2d 823, and Pearson v. Fairbanks Pub-
lishing Co., Inc. (not yet reported), all cited in our main
brief. Wa ee a, “
The Times and Garrison opinions expound the Supreme
Court’s recognition of the absolute necessity for free and .
uninhibited exchanges of ideas on matters of public concern,
particularly those involving government and the conduct of
government,:no matter how erroneous the ideas miay be, in ;
the absence of the known and deliberate lie. Stable self-
govertiment depends upon the ffeedom.to comment on*mat-
ters of public toncern and persons who attempt to influence
the Course and destiny of the government, whether they be
public officials or public interlopers. Such a concept does
not and could not embrace baseball players, Beatles, and
Fat Stock Show winners, as plaintiff suggests at page 52
of his brief. Being merely in the public eye, as plaintiff
puts it, is not the same at all.as attempting publicly’to rally
public support in a camtroversy involving the very essence
of the respective powers’ and authorities of the United
States, a State and the Federal Courts. | |
Obvivusly, a public official by virtue of his office can
and does have a direct influence upon the government, but .
to contend that public officials are the cnly ones in that
position is to ignoré reality. | os :
_ As the Second Circuit Court of Appeals observed in the
Pauling case, it would be anomalous to hold that a news-
_ paper which reported falsely, but without malice, that a
public official had been bribed would not be liable for de-
a ey ee in Sn SaaS Oe, SRS NS Ne
72a
Appendix C
Reply Brief of Appellant The Associated Press,
pp. 1, 6-8 and 19-24 .
famation to the: official, but would be liable to. the person
- who reportedly bribed him.
_° In the instant case, plaintiff summoned the world at
large to join plaintiff in rising to a stand beside Governor
| Barnett. There could be no possible reason or consistency
whatever, and plaintiff suggests none, for holding that
statements about Governor Barnett are within the Times
rule, but that statements about those who rise to stand
beside him are not. The object in either case is the same, the
solicitation of public support is the same, the impact upon ”
public’ opinion is the same, and the potential influence and
effect on the outcome of the controversy is thé same.
. To illustrate the point we are making, suppose that the
Governor of a State should determine that the State would
sécede from the Union. Surely private citizens who publicly
solicited and sought to raise armies in support of such a.
’ movement would be subject to the same law of libel as the
Governor. |
_ Perhaps we have overlabored the point, but we trust
that this Court will recognize that there:is more involved .
_ here than plaintiff’s assertion that we are contending for .
some sort of license to “peddle prevarication with impunity”
(Brief 56), or that “anyone ean be vilified for free”. We
are urging this Court’s serious consideration of the consti-
tutional thesis which applies the same law of libel tosthose
_ who actively and publicly assist. public officials as is applied
‘to the public officials. LY
a
> -.
FR BEE Wg ARES seas:
a 73a
APPENDIX C
Motion of haatatlaian The Associated Press for Rehearing
in the Texas Court of Civil Appeals, pp. 1 and 3 oe
‘No. 16,624.
IN THE 4
COURT OF-CIVIL APPEALS -
ane ‘FOR THE SECOND SUPREME JUDICIAL .
2 oe, DISTRICT OF *TEXAS
| , atv Fort Worta =
= | | .
‘ RN THE AssgcIaTED Press, ’
f ar | _ Appellant,
- US. -
Epwin A. WALKER,
A i ppellee.
From the 17th.District Court
of Tarrant County, Texas ~
A.
7
APPELLANT’S MOTION FOR REHEARING
To‘ THE HONORABLE Court oF Civit APPEALS:
Now comes The Associated Press, the appellant ‘in the ha
above entitled and numbered cause, and respectfully moves
the Court to set aside its judgment and opinion rendered
herein on the 30th day of July, 1965, and to grant appellant
+
74a
Appendix C
Motion of Appellant The Associated Press for Rehearing
in the Texas Court of Civil Appeals, pp. 1 and 3
=
a iin and upon such rehearing to reverse the judg-
ment of the District Court and. render judgment for ap-
pellant in all respects, or, in the alternative, to remand the
case for a new. trial, and as grounds therefor respectfully
says: | eg
* * *
The Court of Civil Appeals erred in overruling Appel-
lant’s Fifth Point of Error, which reads as follows:
“The trial court erred in rendering judgment for
plaintiff because defendant’s nome reports, made
without malice, are protected from'the claim of libel
. by the First and Fourteenth Amendments to the.
“Constitution of the United States, and such judg-
_ment therefore abridges defendant’ s rights there-
99
under. <,
<>
‘ 75a
APPENDIX Cc
Application. for Writ of Error of Petitioner The Asso-.
ciated Press in the Supreme Court of Texas, pp. 1-46 -
No. A-11 ,069
| IN THE
SUPREME COURT OF TEXAS _
4 Ye ape “
| *"Tae Assoczatep PREss, .
Petitioner,
US.
-Epwin A. WALKER,
_ Respondent.
A.
. APPLICATION FOR WRIT OF ERROR
aa
. ‘ |
To THE HonoraABLE SUPREME CouRT OF TEXAS:
Petitioner, The Associated Press, respectfully: submits |
this Application for Writ of Error to the Court of Civil
Appeals for the. Second Supreme Judicial District of
Texas, at Forth Worth, to correct errors of law in-the
judgment and opinion of said Court in Cause No. 16,624,
styled The Associated Press, Appellant v. Edwin. A. ve
Walker, Appellee, wherein the Court of Cjvil Appeals ~
affirmed the judgment of the 17th District Court of, Tar-
rant County, Texas.
Nomenclature
In this Application the parties will be designated either
by name or as they appeared in the trial 7.
76a -
A ppendix c
A pplication for Writ of Error of Petitioner The Associated
Press in the Supreme Court of Texas, pp. 1-46
Statement of The Case
The per curiam opinion of the Fort Worth Court,
' affirming a half million dollar judgment against defendant,
_ correctly states the nature and the result of this libel suit,
and it accurately quotes from Texas Jurisprudence and
the Texas Law Review. It ignores virtually all of the
facts, most of which are undisputed, and in so doing fails
even to recognize, much less dnalyze, the serious Federal
Constitutional question that was presented. The length of
this Application is due in large part to .the necessity for
setting out the undisputed facts that are omitted in the
opinion of the court below.
The two news stories in question are correctly set forth |
in the opinion below. They were prepared by defendant -
and published by the Fort Worth Star-Telegram. They
described plaintiff’s participation in a riot of several thou-
sand persons that occurred during most of the evening of
Sunday, September 30, 1962, and the pre-dawn hours of
the following Monday, on the campus of the University of
Mississippi, at Oxford, in opposition to the efforts of
United States marshals to secure the enrollment of a
Negro in that university, pursuant to the mandate of the
United States Court of Appeals for the Fifth Circuit.
The plaintiff’s presence in the midst of the riot for
more than four hours is undiSputed, as is also the incessant _
radio and television appeal with which he heralded his
coming and ‘summoned 500,000 volunteers to help protect .
-.the Nation against enforcement of the law of the land by
assisting the Governor of Mississippi in pursuing a course
/
ar -
774
A ppendix C
Application for Writ of Error of Petitioner The Associated
Press in the Su-reme Court of Texas, pp. 1-46
that had already led him, to plaintiff’s knowledge, in con-
tempt of the Fifth Circuit Court for having personally and
physically obstructed the execution of its mandate.
_In this Application we shall demonstrate, among other —
things, that the evidence conclusively established, as a
matter of law, (1) that both statements* were substan-
tially true; (2) that both were fair comment, and thus priv-. .
ileged by applicable Texas statutes ; and (3) that in any
event the defendant’s news releases describing, as they did,
a state of affairs in Mississippi that was of grave national
interest and concern, involving issues of the utmost public
importance, are protected by the First and Fourteenth
Amendments to the Constitution of the United States
against the claim of libel by this particular plaintiff, who
the evidence conclusively establishes was, and for consider-
able time had been, a vociferous, publicity-seeking, promi- —
nent political figure and who, with clamorous public fan-
fare in advance, deliberately injected himself and his senti-
ments into the fray in Mississippi and into the limelight
of public scrutiny that he knew was focused upon it.
** * *
Points of Error Relied Upon
1.
The News reports here involved, made without
malice, concerning matters of grave national concern, .
are protected from the claim of libel by the First and
“i.e. the “charge” and “command” statements as quoted in the
opinion below. .
78a cs
Appendix C
A Application for Writ of Error of Petitioner The pacer .
Press in the Supreme Court of Texas, pp. 1-46
Fourteenth Amendments to the Constitution of the (
United States, and the judgment herein therefore .
abridges defendant’s rights thereunder; and the Court
of Civil. Appeals erred in holding to the contrary. ©
: + ~ a. 3
| ie First Point of Error Restated _
1.
_. The news reports here involved, made without —
malice, concerning mat of grave national concern,
are protected from the claim of libel by the First and>
Fourteenth Amendments to the Constitution of the
United States, and the judgment herein therefore
abridges defendant’s rights thereunder; and the Court
of Civil Appeals erred in holding to the contrary.
(Germane to Ground 5 of Defendant's Motion for’ Re-
hearing.) =
cy :
Preliminary Statement :
Ordinarily, accepted briefing practice would dictate that
a resume of the pertinent facts should precede the argument
and authorities, because the Court, being generally familiar _
_with the law, can readily determine the naturé of the cqn--
tention from ‘the point of error, and should first have the.
facts in mind before atteripting to apply the law. ~
Here, however, the point of error raises questions in-
volving Federal Constitutional limitations in the field of |
libel under the First and Fourteenth Amendments that have
19 da
> . - Appendis c
A pplication for Writ of Error of Pilitioner The Associated
Press in the Supreme Court of Texas, pp. 1-46.
been announced only recently by the. Supreme Court: of the .
United States, and accordingly this is a case of first impreés-
sion in this Court. In addition, we have here the rare in-’
stance in which the same point has been decided by another
court in a case involving the same — and the same
subject matter. —
We believe; therefore, that the Constitutional issue that
we presented in the courts below, and are raising here, can
best be demgnstrated at the outset by quoting substantial
portions of the opinion of the United States District Court,
_ Western District’ of Kentucky, in Walker vy. Courier-
Q
Journal et al, ... F. Supp. . ., decided September 23, 1965.*'
We think more ‘extensive quotation than usual is warranted
here and will be helpful, because the case is not yet reported,
and also because it is more than directly in point—it ‘is
virtually the same case, except insofar as the qtestion of
, actuezi malice is concerned. The defendant here was not a
party to that case, but the news reports are substantially
the same. We respectfully ask the Court’s indulgence in.
this departure from ordinary practice, believing it will‘ be
helpful to the Court in understanding the-issue. Argument
and additional authorities will follow.
The following is quoted from the opinion of the Court
in Walker v. Courier-Journal et al: .
“This cause comes on before the Comt. on the
Defendants’ Motion to Dismiss the Plaintiff's Com-
plaint, as amended. er we
*The entire opinion is reproduced in the Agomiiie.
”
* t . “ : . k a at °
t > 80a : : «#7 - 2
° st * ‘ .
' Appendix C oll
A pplication for Writ of Error of Petitioner The Associated
Press in the Supreme Court of, Texas, pp. 1-46
“On September 30, 1963, the’ Plaintiff, Edwin
_A. Walker, a former Army Major General, filed this:
action for actual and punitive damages for libel in
the sum of Two Million Dollars,. against the De-
- fendants, Courier-Journal and Louisville Times
Company and WHAS, Inc., Kentucky corporations,
with their principal places of business in. Louisville,
Kentucky. Jurisdiction of the Court over this action
is fixed by USC Title 28, Paragraph 1332.
. “The Defendant corporations, on October l,-
1962, October 2, 1962 and October 3, 1962, pub-
lished in their newspapers and/or broadcast over.
their radio and television facilities, various news
items or stories.concerning the rioting on the campus’
of the University of Mississippi, in the City of Ox-
ford, Mississippi, which said published matter had
‘been received by..Defendants from national news
- gathering agenciescto which Defendants were sub-
_ scribers. |
“The news items or stories so published and.
- complained of by the Plaintiff stated in substance, |
that the Plaintiff, Walker, had led a charge of riot-
ers against United States Marshals who were pres-
ent on the University of Mississippi
ing out the orders of the United
negroes at said University. Plaintiff,
leged that such items imputed to him that he was a
‘trouble maker’, that. he was ‘participating’ *in the
occurrences takifig place in Oxford; all in the context
‘9° c
e ®
8la {
2
Appendix.G 4
A pplication for Writ of Error of Pel\tioner The Associated
_ Press in the Sapreme Court of Texas, pp. -1-46 4
i
used of inciting of the students to riot, and that the
publication reflected libelously on the hoftor, charac-
ter and reputation of the Plaintiff.
“This Court has considered the briefs and mem- #
oranda submitted by ,counsel for the parties and
taking judicial notice of the public, events relating
thereto whitch were widely reported throughout the
Nation and are matters of common knowledge, and’
further treating as true (for the purpose of passing
upon,this Motion to Dismiss) the factual allegations
of the Complaint, as amended, arrives at the follow-
ing conclusions which are the basis of its final Order
entered herein.
“Following the filing of this action ve Supreme
‘Court of the United States handed down its Opinion
-in New York Times Company v. Sullivan, 376 U.S. .
254 (October Ferm, 1963) wherein said Court*in:
legal effect federally preempted .the law of libel in
matters of ‘grave national’ concera’ involving ‘public
officials” with the announced doctrine that |
. Constitutional guarantees require, we think,
-a . Federal rule that prohibits a publi¢ official from
_ -srecovering damages for a defamatory falsehood .
relating to his official conduct unless: he proves
= the statement was made with “actual mal-
e”—that is, with knowledge that it was false
or wk reckless disregard of whether it was or -
not.’ |
~
. 82a
+ .
Appendix C . ‘
A pplication for Writ of Error of Petitioner The Associated
Press in the Supreme C ourt.of Texas, pp. 1-46
“There can be no question but that the serious
occurrences at the University of Mississippi wherein
* the State of Mississippi and the Federal.Government
were locked in confliet as to the educational integra-
tion of the races was a matter of ‘grave national
concern.’ The Supreme Court of the United States
has classified the integration struggle as ‘ore of the
_ majer political issues of our time.’
_ “Thus, it can. be seen that. had the Plaintiff,
Walker, been a ‘public official’ at the time of ‘this
occurrence, this Court’s task would have been auto
matically relegated to a decision’ ‘only of the one
issue of whether or not the Defendants herein had
published the statements attributed to them with
‘actual malice’, that is, with knowledge: that the
statements were false or with reckless disregard of
whether or not they were false. -
“However, the matter is not so siffple, for this
. ‘Court notes with significance that in laying down
the.doctrine of ‘actual malice’ in the Times case, the _
. Supreme Court quoted with approval from the case .
of Coleman vs. McLennan, 78 Kans. 711, 98 P. 281
(1908) as follows:
‘This sings 4 extends to a great variety of sub:
jects and includes matters of public concern, -
public men and candidates for office.’ (Emphasis
added )
and in conclusion the Court stated:
o
Appendix C |
A pplication for Writ of Error-of Petitioner The Associated:
Press in the Supreme Court of z exas, pp. 1-46 .
‘We hold today that the Constitution delimits a “ ;
, State’s 5 power to award damages for libel i in ac-
tions brought by. public officials against critics of
their official conduct. Since this is such an action, |
the rule requiring proof of actual malice i is ap-
plicable.’ (Page 283) :
“In connection with the last above quoted lan- -
guage, the Supreme Court included a footnote to its
Opinion (Footnote 23):in part, as follows:
“We have no occasion here . . to specify cate- —
gories of persons who would or would not be
‘included. 4 -
“From this inlaws I believe ‘the Supreme
Court of the United States has served clear notice
that the broad Constitutional protections afforded
by the First and Fourteenth Amendnients will not . .
be, limited to ‘public officials’ only, for to have any
meaning the protections must be extended to other
“categories of individuals’of persons involved in the
- area of public.debate or: who have become itvolved
in matters of public concern. If the Supreme Court -
intended to limit its holdings to ‘public officials’ only,
then why Footnote 23? I subscribe that Footnote
23 is of vast importance in understanding the in-
- tended scope of the Supreme Court’s Opinion, for
it is a departure from the Court’s traditional rule
of basing its decision on the narrowest Constitu-
tional grounds and is interpreted by this Court as
_ « > 84a
-A Spends * eae, ‘
Press i in the Supreme Court of Texas, pp. 1-46 + 8
giviog special Significance. to- the br oad. language
adopted in arriving at its decision.
“The Plaintiff, Walker, is of course not a ‘public
official’ within the commonly accepted meaning of
the words. However, he was, as he identifies him-
: self in his own Complaint, a person of ‘political
prominence.’ This Court takes judicial notice that
. Plaintiff Walker’s public life is generally well
known to the people of this Nation, that he was the
subject of nationwide ‘mews reports-while on duty
Governor of Texas, and that he has ‘in the past
made vigorous public announcements on matters of
public concern. Plaintiff was, by his own choosing,
present in Oxford, Mississippi, on the .octasion of
the turmoil after announcing on radio and television
his intention to be present there and having called
upon others to join with him there in support of his
* + concern there in issue.
“Had not* Plaintiff thereby become a ‘public
man’? Could he not have reasonably foreseen that
his being a person of ‘political prominence’ his pres-
‘ence in Oxford would be taken cognizance of by the
press? Had not Walker igterwoven his personal
status into that of a public one whereby he would
become the subject of substantial press, radio and
television news comment; thus magnifying the
chance that his activities would be ‘erroneously’
reported? This Court so’believes, —
: Application for Writ of Error af Petitioner The Associated
as an Army General and also as a candidate for _
publicly stated position on the matters. of public
85a
A pendix ; )
A pplication for Writ of Error of Petitioner-The Associated
Press in the Supreme Court of Texas, pp. 1-46
“I therefore reach the inescapable conclusion
that the protective ‘public official’ doctrine of ‘actual
malice’ announced in Sullivan v. New York Times.
is in common’ reason and should bé applicable to a
‘public man’ as well, and that the Plaintiff, Walker,
_ was‘such a ‘public man’ under the circumstances in-
volved here. ‘Public men are, as it were, public
property.’
“My application of. the doctrine of New York
Times vy. Sullivan to the facts here in issue finds
authority not only in the logical dictates of Footnote
a discussed above, but in the reasoning and phil-
osophy underlying the Times Opinion and in the
critical discussion in legal commentaries and recent
decisions of other courts. The decision of Judge
Friendly in Pauling v. News Syndicate Company,
335 F. 2d 659 at 671 (2d Cir. 1964), favorably
presages the result here. See also Gilberg v. Goffi,
- 251 N.Y.S. 2d 823 (1964); Pearson v. Fairbanks’
Publishing Co., (Unreported, Superior Ct. of
Alaska, 4th District, Nov. 25, 1964) ; and Pedrick,
Freedom of the Press and the Law of Libel, 49 Cor-
nell L:Q. 581, at 592 (1964) ; 9 Vill. L. Rev. 534
(1964).
“T adopt this position with full understanding of
the fact that by-such extension of the scope of word
meaning I am perhaps ‘plowing new ground’ in legal
effect, but also with the accompanying conviction .
that not to do so would negate the spirit of the
A te ~ = "3 ie ene Ce
.
PN I ET SD Ae
Appendix Cc
A pplication for Writ of Error of Petitioner The Aisecieted
Press in the Supreme Court of Texas, pp. 1-46
* Times Opinion which I believe to bea‘... profound
_ national commitment to the principle that debate on
public issues should be uninhibited, robust and
wide open .. .’ Public debate cannot be ‘uninhibited,
robust and wide open’ if the news media are com-
> pelled to stand legally in awe of error in reporting .
the words, and actions of persons of national prom-
inence and influence (not ‘public officials’) who are
nevertheless voluntarily injecting themselves into
matters of grave public concern attempting thereby
‘through use of their leadership and ixfluence, to
mold public thought and opinion to their own way of
thinking. If any person seeks the ‘spotlight’ of the
stage of public prominence then he must be prepared
to accept the e~rors of the searching beams of the
glow thereoi, ivr only in such rays can the public
know what role he plays on the stage of public con-
cern—often, regretfully, a stage torn in the turmoil
of riot and civil disorder, whereon error in reported
occurrence is more apt to become the rule rather
‘than the exception.
“This is particularly so heré where open riot and
turmoil with accompanying: destruction of property, .
injuries and death turned portions of the University |
~ of Mississippi campus into.a strife beset no man’s
land through the dark hours of the night.”
4
The Federal Court then proceeded to consider the ques-
tion of the existence of actual malice on the part of the —
defendants and, concluding that there. was none, dismissed
the complaint with prejudice.
87a
- Appendix C
A pplication for Writ of Error of Petitioner The Associated
Press in the Supreme Court of Texas, pp. 1-46
In marked contrast to the logical and analytical treat-
ment of this serious, and we believe determinative, Consti-
tutional question by the Federal Court in the above case is
the opinion of the Fort Worth Court, wherein that court,
‘presented with the same argument, authorities and set of
facts,'took no apparent notice of the significant, recent
holdings of the Supreme Court of the United States, but
y resurrected instead, as the basis for its summary disposal
of the question, a 1929 Law Review article written by a tort
professor on the subject of fair coimment. The critical facts
of which the Federal Court took judicial notice upon’ mo-
' tion to dismiss were not noticed at all by the Fort Worth
Court, though they were undisputed in the record before -
it. This signal failure of the Texas intermediate court to
come to grips with a crucial and timely Constitutional ques-
tion requires, we respectfully submit, that this Court grant
_the writ of error upon the basis of the undisputed facts and
the authorities that now follow. .
—~ “The Undisputed Evidence
Background of the Mississippi Crisis
On June 25, 1962; the United States Court of Appeals
for the Fifth Circuit, reversing the. District Court for the
Southern District of Mississippi, directed the lower court
to issue an. injunction compelling the admission of. James
H. Meredith, a Negro, into the University of Mississippi. .
Meredith v. Fair, 305 F. 2d 343. The history of that litiga-
tion is set out in some detail in the opinion by Judge Wis-:
dom. On July 17 the mandate of the Circuit Court issued,
°
88a
, “A ppendtx.C
A pplication for Writ of Error of Petitioner The Associated
Press in the Supreme Court of Texas, pp. 1-46
and on July_18 Judge Cameron of that Court Signed an
order staying the execution and enforcement of the man-
date. (Def. Ex. 3).
On July 27, 1962, the Fifth Circuit Colt entered an
order vacating the stay order theretofore ‘signed by Judge
. Cameron, and recalling the mandate for the purpose of clar-
ifying it by amending it to provide that the injunction be
issued forthwith by the District Court compelling the imme-
diate admission of Meredith to the University _ Ex.
3). ,
On September 10, 1962, Associate Justice Hugo L. Black ~
of.the Supreme Court of the United States entered an order
which (1) vacated Judge Cameron’s stay order of July 18,
as well as subsequent stay orders of July 28, July 31; and
August 6, 1962, by the same circuit judge, and (2) ordered
that the school officials be enjoined from preventing the en-
_ forcement of the Fifth Circuit’s mandate (Def. Ex. 4).
On September 13, 1962, the District Court for the Southern —
District of Mississippi, pursuant to the mandate of the
Fifth Circuit and the mandate of-Mr. Justice Black, granted
permanent injunction commanding the immediate admis-
sion of Meredith into the University and enjoining the
school officials from inter fering with his admission (Def. .
me. $).:. |
On September 28, 1962, the Fifth Circuit Court: sitting —
en banc, rendered a ‘judgment holding Ross R. Barnett, the
Governor of Mississippi, in civil contempt of that court, and
. in the judgment recited findings of fact to the effect (1)
that since the issuance of the injunction on September 13,
ie
“™
89a |
Appendix o
- Application for Ww rit of Error of Petitioner The Assocrated
Press in the Supreme Court of Texas, pp. 1-46 |
1962, Ross R. Barnett, as Governor of the State of Missis-
'. sippi, had issued a series of proclamations calling upon all
Officials of the State to prevent and obstruct the carrying
out of the court orders; (2) that on September 25, 1962,
the Fifth Circuit Court had enttred temporary restraining ~
orders restraining Barnett from interfering with or ob-
structing the court’s order and the injunction of the Dis-
trict Court; (3) that. at approximately 4:30 P.M. on Sep-
tember 25, 1962, the said Barnett, having full knowledge of °
the Fifth Circuit-Coatt’s temporary restraining orders, had -
confronted Meredith when he sought to enter the office
where he was to enroll, had deliberately prevented him from .
entering, and had told him that his application for enroll-
ment was denied by Barnett; arid (4) that on September
26, 1962, Meredith sought to enter the campus bf the Uni- .
versity of Mississippi at Oxford, where he was denied entry |
_ by the Lieutenant Governor of the State of Mississippi,
acting pursuant to the instructions and under the authori-
zation of Governor Barnett (Def. Ex. 6).
According to the plaintiff’s testimony and that of his
witnesses, Governor: Barnett; despite the restraining orders
and the contempt judgment, was continuing to oppose the
entry of Meredith into the University at the time of the riot
on the campus, and his instructions to that effect, directed to
the local sheriffs and the Mississippi Highway Patrol, con-
‘tinued in force (S.F. 840-841). According to plaintiff’s
evidence, the orders of the Fifth Circuit and the actions of
Governor Barnett in opposition thereto were widely dis-
cussed (S.F. 759) and were known to plaintiff, (S.F. 760-
762, 809-810), and the integration question was a subject
of national interest and national controversy (S.F. 759).
» Khe of? -: Se
A pplication for Writ of Error of Petitioner The Assocketed
Press in the Supreme C ourt of Téxas, pp. 1-46
Background of General Walker. ae
He is a
According. to the testimony of the plaintiff:
graduate of the United States Military Academy (S.F. 730,
734), and, until his resignation from the Army in 1961, he
was ‘a career soldier, having risen to the rank of Major
General (S.F. 734)., In 1957 he commanded the -federal
troops that were called into Little Rock, Arkansas, by Pres-
ident Eisenhower to enforcé the’ integration of the Little
~ Rock High School, as ordered by the Federal Courts (S.F.
- 611, 739). In 1959 he was ordered to Germany to assume
command of the 24th Infantry Division (S.F. 617). While
in Germany he was involved in an incident that resulted in
his receiving national publicity (S. ¥. 617 ). He. was re-
lieved of command, and an investigation was conducted, . .’
_which. resulted in neither charges nor punishment (S.F.
620). ‘Thereafter, the Army wanted him to retire, but in-—
instead he resigned: (S.F. 740).. By resignitig, instead of
retiring; he forfeited benefits amounting to approximately
$15,000 per year (S.F. 626, 740). His purpose -in resign-
ing, thereby losing his retirement benefits, was to be able
to speak out on matters of public importance and to be free
to say whatever he chose without any strings attached
(S.F, 741). At the time of his resignation. in the fall
of 1961 he received considerable publicity concerning his
resignation and the events leading up thereto (S.F. 743).
- He decided to speak.and talk to people, and he expected to
_ receive some kind of remuneration for his see engage-
ments G. F. 743).
noe eV arma g MetKen~
; 7
oo e
ee
Ola
: Appendix C
A pplication for Writ of Error of Petitioner The Associated
Press in the S jupreme Court of Texas, PP. 1-46 |
His first speech after leaving the Army was in Dallas
in December, 1961, for which he’ received remuneration
(S.F. 744, 745). Since then he. has been thaking speeches
all, over. the country arid there is a constant demand on his
time for speaking engagements (S.F. 745).
He has been a member of the John Birch Society since
‘1958 or 1959 (S. -F.749). Since his resignation from the ~
Army: he has also done a good déal of - ‘writing, and he sells’
what he writes (S.F. 749). He and another person operate
- the American Eagle Publishing ‘Company in Dallas, which
has some 250 or 300 regular subscribers, and the publica-_
_ tions, are sent to. others who plaintiff feels might be inter-
ested (S.F. 750-751). His followers include an organiza-
tion known as “Friends ef Walker” throughout the
Nation, and some of Ahese groups make financial contribu- .
tions to him (S.F. 751-752).
In the spring of 1962 he announced his candidacy ¢ or
Governor of Texas and made an extensive campaign, re-
ceiving broad press covérage concerning his ideologies and
ideas about the governorship (S.F. 752-753). Although the
news media does not always print everything he has to say,
he has been able, basically, to get press conferences: when-
ever he wanted them. (S.F. ns
“
“A
wee BS a ane -~ - 5 ae
~a) ~~ satin Septncnalinishioe i
. . ” s * °
92a ;
A ppendix C
4 pplication for Writ of Error of ‘Petitioner The Associa
Press in the Supreme Court of Texas, pp. 1-46
| bined Walker and the Mississippi Crisis
(The Crisis Did Not Come to Him)
In the latter part of September, 1962, as it became ap- .
parent that a crisis was developing over the admission of
Meredith to the University, General Walker began to move.
From his home in Dallas on Wednesday, September 26,
1962, he issued over Radio Station KWKH at Shreveport,
- Louisiafia, the following statement to the world at large:
“It is ‘time to move. We have talked, listened,
and been pushed around far too much by the
anti-Christ Supreme Court. Rise . . . toa stand
beside Governor, Ross Barnett at J ackson, Mis-
sissippi.. Now is the time.to be heard. Ten thou-
sand strong from every State in the. Union.
Rally to the cause of freedom. The Battle Cry
of the Republic. Barnett, Yes! Castro, No!
Bring your flag; your tent, and: your skillet. It’s
time. Now or never. The time is when and if.
the President of the United States commits or
uses any troops, Federal or State, in Mississippi.
“The last time—in such a _situation—I was
on the wrong side. That was in Little Rock,
‘Arkansas in 1957 and 1958. This time I am out
of uniform and I am on the right side. And I
will be there.” (S.F. 778-780; 7 sEx. 7).
His selection of the: Shreveport station was no happen- .
stance. Broadcasts from the station reached over into Mis-
sissippi. wie F. 834).
<
Oo PO MORRIE Bb oe
?
) »
, if
_ _, Appendix C - ne .
A pplication for Writ of Error of Petitioner The Associated
—._Press in the Supreme Court of Texas, pp. 1-46- $
fom,
¥ = .
The next -night, September 27, 1962, Gen 3
appeared on television at his home'in Dallas and reiterated
substantially the same statement as quoted—above (S:F.
787). On that occasion, in addition-to the prepared text
.. > the following aad occurred between General Walker
and the interviewer:
Interviewer:
“General, if forces go, will you lead this force ”
General Walker:
“This is a cauge for freedom. This is Ameri-
cans, patriotic. Americans, from all over the
Nation. It is a movement for freedom. And I
_will be there. Rise to a stand beside Governor
Barnett’ at Jackson; Mississippi. Now is the
_ time to be heard. Thousands strong from every
State in the Union. Rally to the cause of free- -
dom.” (S.F. 787-788)
. ” The next evening, Septembé? 28, 1962, over Radio Sta-
‘tion WNOE of New Orleans, Louisiana, he asserted that
there is no law that requires integration (S.F. 801), and
he reported that he had been swamped with telephone calls
from persons offering help and assistance and notifying
him that people were moving to Mississippi to assist in any
way possible (S.F. 802). Asked if there was a particular
point in Mississippi where all of his followers would méet -
he replied that he intended to Join the gyovement/ that there
are thousands of people, probably hundreds of thousands;
‘s { .* :
“ “ies A speudte C
A pplication for Writ of Error‘of Petitioner The Associated
Press in the Supreme Court of Texas, pp. 1 46°
in ‘Mississippi standing beside Governor Barnett, and that
the best place to assemble would be at the Capitol at Jack-
son, or at the Ubiverany of Mississippi in Oxford (S F.
803). - 7 ,
The next day, September 29, 1962, with full knowledge
that Governor Barnett by then had: been held in contempt
_ of: the Fifth Circuit Court (S.F. 762), but was continuing
‘ae course of-opposition to its mandate (S.F..841), General
Pte Walker proceeded by private plane to Jackson, Mississippi,
where he held another press and television-eonference at
cern,
*» the Sun & Sands Motel*. There, over television for all to. i
hear who cared to listen; he ‘said: t.- 9
“T am in Mississippi—beside Governor Ross :
_ Barnett. a
“T call for a national prenens, against the con-
spiracy from within. - >
‘ “Rally to the cause of Freedom i in righteous
. indignation, violent vocal’ protest and bitter
silence under the Flag of Mississippi at the ‘use
of Federal troops. * .
: “This today is ‘a diagrace to the Nation in
: ‘Dire Peril’—a disgrace beyond thé-capacity of
" anyone except its enemies. as
‘This is the conspiracy of the crucifixion by
the anti-Christ conspirators of the Supreme
Court. in tfieir denial of prayer and their be-
‘trayal of a Nation.” (Def, Ex. 8, S.F. 789, 790)
*He was not staying at the motel, but went there to meet the
press. C :
.
. 2
See te Ps
4 ;
| A pplication for W. rit of Error of Petitioner The Associated -
Appendix C
Press in the Supreme.Court of Texas, pp. 1-46
At the same.press conference he was asked if he. had been‘
in contact with Governor Barnett, and he replied that he
had been in contact with the Governor’s office and hoped to
_ See the Governor while.in Jackson (S.F. 790-791). ra
That afternoon, General Walker -began to hear reports
that Meredith was being moved into the campus that day,
and that military forces were being committed (S:F. 640).
He canceled his plans to attend a.football’ game that night
in Jackson (S.F. 640), and-proceeded by automobile to Ox-
ford, Mississippi, with his fan Louis Leman, where he was_ +
registered in a motel under the name John Waters after a
midnight drive through the campus ‘(S.F. 648-649).
- The next day, Sunday September 30,1962, he went_to
| the Sheriff’s office in Oxford and offered to assist the
Sheriff in any way he could (S.W: 839): At that time he
knew that the Sheriff was under the jurisdiction of the
"Governor (S.F. 840); that“ the Governor had* used the
polite forces of the State, including the\Sheriff, to prevent |
the entrance of Meredith into the University, and that the . *
Governor had-not-changed his position (S.F. 841).
_ At lunch that day in downtown Oxford, several re-
porters asked him for a statement, and he finally agreed to
- “hold a press conference late that afternoon at the Ole Miss
to the pojnt, he said:
Motel where the reporters were staying. (S.F: 656). As
" fortune would have it, he happened to have lying around-an -—_-
old speech that he had prepared by 9 o'clock that morning
(S.F. 849), and it suited the occasion perfectly. That.
afternoon he delivered it to the’‘press conference. Short and .
.
“As the forces of the New Frontier assemble
to the North, let history be witness to the cour-
\
/ Appendix C
Pe
A pplication for Writ of Erfor of Petitioner. The Associated:
Press im the Supreme c ourt of Texas, pp. 1 ~46
age and dsterinination that calls us to Oxford
t6 support a courageous Governor. His lawful
‘stand for State Sovereignty is supported by
thousands of people beyond the State borders ©
now on_the .way to join you at Oxford.” (Def.
. Ex. 11, SF. 794). ; e =e
At ‘the same press conference he learned that: imme 3 Mar-
_ shals and Meredith were on the campus (S.F. 658, 865).
Thus, for several days down to and including fhe day .
of the riot, General Walker had been quite. vocal in the
press, and- ‘was anxious to get his message out to fhose who
- cared ‘to listen (S.F. 833-834): ;
. That evening, September 30, 1962,-about-8 o'clock. rm
and Louis Leman ate dinner in a downtown Oxford cafe,
_ where they listened to President Kennedy’s speech (S.F.
850) in which the President announced that Meredith was
in residence on the campus of. the University, and called’ ;
upon the people to preserve law and peace. The President
. also stated that he had federalized the Mississippi National
Guard as the most appropriate instrument to preserve law
and order, if néeded, to back up the United States marshals:
(S.F..868, et seq.). Upon the éonclusion of the President’s
speech, General Walker’s comment was “Nauseating, Nau-
seating” (S.F. 874), which expressed his feelings toward —
the Federal Administration (S.F.875).
‘He had finished dinner and was leaving the restaurant
with Leman when he heard that there was trouble onthe
‘campus (S.F. 663-664). He and Leman then drove to the
_ campus (S.F. =, a
> : . ’ . ZF
~- .
97a
Appendis C.’
Application for Writ of Error of Petitioner The Associated
it Press in, the Supreme Court of Texas, pp. 1-46
: The Riot Ee
; General Walker and Louis Leman arrived: on the cam- . |
‘pus about 8:45 that evening (S.F. 446), at which time a.
loud, violent riot was in progress in an area of the campus
"that is known as the Circle (S.F. 162, 169, 192, 206, 294,
295, 297,420, 477 ),: Sometimes inaccurately referred to in
the testimorty.as the Grove (Actually, the Grove is another
area that lies ‘to the northeast of the Circle). To assist’ the
Court 4fi following the evidence, we have attached a plot
-. Plan of the area to this Application. It is a reduced partial
reproduction of Plaintiff’s Exhibit 11.
As may be seen from the plot plan, University Avenue
BS -enters the campus from the east and then divides to form
encircling drives.around ‘the Circle. At the east end of the
Circle is a Confederate Monument referred to throughout
the testimony as the Monument or. the Statue. At the west,
end of the Circle and across the drive is the Lyceum Build-
(S.F. 1391). Slightly west of the center of the Circle is the
- flagpole, and it forms the intersection of crosswalks that
‘traverse the Circle in North-South and East-West direc-
tions. The distance from the monument to the Lyceum
Building is approximately 525 feet. The flagpole is ap-
proximately 275 feet west of the monument on a direct
line between it and the Lyceum Building. Procéeding clock-
wise from the Lyceum Building, and to the north of the
Circle, are Peabody Hall, the Fine Arts Building, and the
Y. M. C. A. Building. Moving counter-clockwise from the
Lyceum Building, and to the south of the Circle, are the
ee
A
- ing. It is the center or the’*headquarters of the University .
Bi as
Pr. Ae
i an 6 ct tc rT AD re cr ot
® oO:
98a
"A ppendix C
A pplication for Writ of Error of Petitioner The demand
Press 4 in the Supreme Court of Texas, pp. 1-46
2 oe
Chemistry Building, Carrier ‘Hall (t
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