# Appendix — Curtis Publishing Co. v. Butts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0023%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1967 - **Citation:** 388 U.S. 130 ## Text ee. * 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. “ 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 _— | «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 . | 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 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. ' . -~ 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). 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 (the Engines Build-’ ing), and Hume.Hall (the Science Building), which, was ~ under construction at the time of the riot. By approximately 4 o’clock that afternoop a ring of et ‘federal marshals had encircled the Lyceum Byilding (S.F. : _ 151), where Justice Department official’ and for a time the _ head of the Mississippi Highway Patrol, a Colonel Bird- _ song, were located (S.F. 1368). A crowd had assembled in the Circle area and began taunting and jeering the mar- - m shals. Mississippi Highway Patrolmen stood between the — marshals and the crowd in the Circle until the riot started. ~ By. approximately 8 o'clock that evening a full scale riot had erupted which was to-continue all night, destroy 16 * ° automobiles, kill two people, injure 50, and result in the arrest of 160 persons, including.the plaintiff (S.F. 228, >, 296, 1349, 1350, 714). By all accounts, including Ginieat Walker’ s, the riot was serious and violent by the time he arrived, and it got worse as the night wore on. The rioters would form into - groups and charge toward the marshals, throwing bricks,.. bottles, rocks, sticks, and other missiles before being re- pulsed by the tear gas+(‘S.F. 158, 201, 488, 555, 1291). As. described by plaintiff’s witness Kuettner7 i it was a full scale riot a dangerous situation. (S.F. 1278); the ‘movement re the crowd was an ebb and flow kind of surg ing, accompanied by loud cursing and yellirig (S.F. 1290). : Newsmen were also a target of the crowd’s wrath (S.F. ~ 193). Later in the evening, the rioters attempted to charge ‘the marshals with a fire.truck and then with a bulldozer (S.F. 1283-1285), both of which attacks were without 99a , A ppendix C . 3 _ y pplication for Writ of Error of Petitioner The Aianiaiiea | Presi in latte —— Court sf Texas, pp. 1 -46, ‘ success, At.a one pobnt. according to General Walker’ Ss own , . testimony, someone queried him as to how to combat the - > \ tear gas, and he advised to use sand (S.F. 919), but stated ! \. “Where would you get sand?” ’ (S.F. 920). ‘The rioters . ~ would hurl ‘Molotov cocktails” at the marshals (S.F. 1294). These were soft drink bottles filled with gasoline. ne and equipped with burning fuses (S.F.° 1294). Walker » was in the vicinity of the Molotov cocktails (S-F. 363). The bricks, stones, and other missiles were, for the most _part, obtained from construction materials at the site of “the new Science Building southéast of the Circle .(5.F. 1215). The charges iowatd the marshals would originate > near the monument, close to the supply of ammunition, and - would proceed west toward the marshals. Finally, rifle fire erupted, and by the following morning there were some 7 to 10 bullet holes ‘in the front of the Lyceum Building (S.F. 1352-1353). The next morning the campus looked like a battle field (S.F. 1296, 261,-Def. ~.. Ex. 20, 21, 23, 24, 25, 28). Concreté benches in the Circle. - along. the sidewalks had been broken and used as missiles _ . (S.F. 295). 7 7 aes "s General Walker and Leman had left the car > several : blocks east of the Circle (S.F. 875) and walkéd down Uni- versity Avenue in a westerly direction .toward the monu- ake _ ‘ment (S.F. 876), arriving, as hereinabove stated, about 8:45 P.M. According to General Walker’s own testimony, as he approached the Circle from the east, people were moving along the sidewalks and.he said to them “Come on”, and waved across the street to a: ‘group that recognized him » (S.F. wis By the time he reached the monument he began ~ 100, Appendix C Application for Writ of Error of Petitioner The Associated - Press in the Supreme Gourt of Texas, pp. 1-46 bearing suntente saying “We have a leader” (S. F, 882), and asking him “Will you lead us up to the steps; will you _get us organized ; will you lead us?” ; and that was the pre- dominant question on the campus at that time, according» to General Walker (S.F. 883). About, that same time he © met a deputy sheriff named Talmage Witt and requested — the sheriff to deputize him, but the sheriff refused (S.F. 885, 886). Witt, who.appeared at the trial as a plaintiff's witness, is 5’-11” tall and weighs 275 pounds (S.F. 314),. and fits the description of the “portly” man described i in the story by defendant’s reporter, Savell. Other evidence which occupies literally hundreds of pages of the Statement of Facts, and which will be di under subsequerit points of error, conclusively establishes . as a matter of law that, applying correct principles of, Texas law, both the “command” and “charge” statements were substantially true and were fair comment. Generally, such evidence shows without dispute that upon his arrival at the scene of the riot General Walker was hailed by the rioters as their leader, that he delivered at least one speech to the _ rioters in which he told them that they had a right to con- tinue protesting, and that he moved toward the federal marshals on one or more occasions: surrounded by rioters. However, for the purpose of argument under this point of _- error, the truth or falsity of the statements is immaterial - . because the First and Fourteenth Amendment protection * under the rule laid down-in New York Times Co. v. Sulls- van, 376 U. S; 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A. L. R. 2d 1412, and Garrison v. oe 379 U. S. 64. 13 L. Ed. 2d 125, 85 S. Ct. . ..» does not depend ‘upon truth or falsity. ; wv 10la Appendix C Application for Writ of Error of Petitioner The Associated Press in the Supreme Court of —_ PP. 1-46 puinen and Authorities To be sure, the actual holding of the Times and Garri- son cases applied to public officials, since the persons alleged to have been libeled in those cases were public officials. It is manifest, however, from the reasoning underlying the de- cisions that they cannet be so limited. Moreover, to so restrict the Times and Garrison rule would create constitu- tional anomalies of the most serious kind and would, indeed, . engender the very dangers that the rule was intended to avoid. The plaintiff's declared purpose 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 aunatientenal anomaly having neither substance nor shadow of basi§ in reason to. hold or the one hand that Governor Barnett is within “the Times rule, which he clearly is, and yet to hold on the other hand that those who publicly rise to stand beside him, seeking with equal *igor and effect to rally public support for his cause, are not. Log- ically, the Constitutional protection, if it is to exist ¢) at all and have any fairness about it, must extend to - the area of public apes and-to those who participate in it. ; i ‘\ peor 102a A ppendix c , _ Application for Writ of Error of Petitioner The Associated Press in the Supreme Court of Texas, pp. 1-46 The question before this Court; then; is whether the Times and Garrison_cases laid down a narrow, technical rule, &trictly limited to public officials, as held by the trial court and apparently by the Court of Civil Appeals, or whether they announced a broad constitutional policy of real substance which applies to matters: of serious public concern and to public men of politica] prominence who in- ject themselves into political controversies ‘seeking to sway " public opinion and gain public support for their cause, as - ‘held by the Federal Court in the Courier-Journal case. A question: of equal significance is whether the severe limitations upon the defenses of substantial truth and fair _ comment, as-enunciated and applied by the court below, afford the safeguards for freedom of speech and press re- quired by the Times and Garrison decisions. In this argument we will show that the philosophy and reasoning underlying the Times and Garrison opinions, the holdings and statements by other-courts that have con- - sidered the quéstion subsequent to those decisions, and the “great weight of comment by legal writers, clearly support . the holding of the Federal Court in the Courier-Journal case; and that the’restrictive interpretation of the defenses of ‘substantial truth.and fair comment as applied by the court below would, if permitted to stand, effectively inhibit and preclude the various news media from reporting, in good faith, events of profound national significance, thus creating a form of censorship through fear of libel actions that is the direct antithesis of the spirit and hdlding of the Times and Garrison cases. ; 3 | ; : 1 i a ; 3 | 103a A ppendix C Application for Writ of Error of Petitioner.The ‘Associated a Press in the Supreme Court of Texas, pp. 1-46 The touchstone of the Times and Garrison decisions was the Supreme Court’s recognition of the existence and wis- dom.of our “profound national commitment to the principle “that debate on public issues should be uninhibited, robust, and wide-open’. . .”, and the premise that it is the purpose and philosophy of the First Amendment to insure free and ~ uninhibited exchange of ideas on issues of public impor- tance, even though such a freedom, like others, will result in _ some abuses. 7 Quotihg from Judge Learned Hand, the court in the _ . Times case said that the First- Amendment “ ‘presupposes that right conclusions are more.likely to be gathered out of a multitude of tongues, than through any kind of authori- tative 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 government. 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 imagina- tion; that fear breeds repression; that repression — breeds hate; that hate menaces stable, government; that the path of safety lies in the opportunity to dis- cuss freely supposed grievances and proposed rerfit- dies; and that the fitting remedy for evil counsels LE ae ‘ie. A ppendix Cc : A pplication for Writ of Error of Petitioner The dcsetiniot gress s in the Supreme Court of Texas, pp. 1-46 is good ones. Believing in the power of reason as . bus applied through public discussion, they eschewed - silence ced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Consti- tution. so that free speech and assembly oats be guaranteed. 999 | Recognizing that “some degree of abuse is inseparable from the proper use of everything ; and in no instance is this more true than © 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 ta 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 liberties are,.in the long view, essential to enlightened opinion and right conduct on the part - _ of the citizens of democracy.” In chart the holding of Times wal Garvieon} is that, in the long run, freedom of expfession on public matters is of ’ overriding public importance regardless of the excesses . and abuses that may occasionally result ; and that the indi-: 6 . 3 3 x | ; ; . ; ee Le ee ee Mt I ee Appendix C Application for Writ of Error of Petitioner The Associated Press i in the me Court of Texas, pp. 1-46 — > vidual’s clan or. - libel is pre-empted by the Paramount. public need for’ information on public ‘issues. Moreover, the court’s heavy emphasis i 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 extends to-all matters of great public concern. ' The court quoted with approval the following from the Supreme — Court of Kansas: “In. such a case. the occasion gives rise to a privilege, qualified to this extent: any one claiming to be-defamed by the communication must show actual malice or go remediless. This privilege ex- - .ténds to a great variety of subjects, and includes * matters of public concern, public men, and candi- | “dates for office.” 78 Kan. at 723. (Emphasis added) In Pauling v. News S yndlicote Co. 335 F. 2d 659 (2 Cir. __1964), an action for libel, the court said, as an. alternative ' gtound for its holding : +e “Although the public official is the strongest case _ for the constitutional compuision’ of such a privilege, — ‘it is questionable whether in principle the decision ‘can be so limited. A candidate for - public office: ‘would seem an inevitable candidate for extension; if * _a newspaper cannot constitionally be held for defa- «. Mation when it states without malice, -but cannot — - prove, that an incumbent seeking re-election has | accepted a bribe, it seentig hard to justify holding it * | ‘liable for further stating that the bribe was offered . : _ by his opponent. Once that extension was made, -m 106a ee eS ae ‘Appendix C. . A pplication for Writ of Error of 1 Petitioner The Associated fears in the Supreme Court of hac S, BP. 1 -46 ~ 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. Patiling’s charges that a mem- ber of the Atomic Energy Commissigh had ‘made Uishonest, untrue and, misleading statements to mis- lead the American people’ and that a United States ; Senator i is ‘the greatest enemy . . . the United States _ . has,” as the New York Times case decided, one may wonder whether there would be sound’ basis for forcing it to. risk a jury’s determination thgt it was - only engaging:in fair criticism rather than misstat- — ing facts if it printed, falsely but without malice, t in saying all this Dr.. Pauling was sittin the Communist line.” (671) rm In Gilberg v. Goffi, 251 NYS 2d 823, an action for libel, the rule of the Times case was applied to a mayor ’s law - partner, who was neither an officeholder nor a candidate for office, but who had entered a public controversy as to wWhether’a municipal code of ethics was needed to bar the mayor and his sed firm from practicing law in the city court. : \ a . In Pearson v. Fairbanks Publishing Co.,-Inc. (Superier Court of Alaska, Fourth District, No. f0 209), the action was to recaver damages for libel. The alleged libel was the ~ charge that the plaintiff, a newspaper and radio columnist, was the “Garbage Man of the Fourth Estate.” The court, in taking note of the Times decision and holding that the _ ‘ publication complained of was not actionable, said, in an * | ‘ ‘ *° 107a ‘Appendix C : ry A pplication for Ww rit of Error of Petitioner The Assoctunal . es in the Supreme Ce ourt of Texas, Pp. 1-46 : opinion nit yet published, that “Drew. Pearson, a public ~ figure and: internationally known newspaper and radio —e. columnist of no mean proportion, shoyld occupy the same "i 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 tha ion of school integration-that came to a head in tnt the ape pi crisis was a-matter of grave natiorial controversy and . concern. It was one of the most dominant and widely _ debated issues of . this century. ‘In the Times Ese, the _* Supreme Court referred to the integration question. as “one” ‘° -of the major public issues of our time .. .”, (at 701). This is also conclusively established in the record. The plaintiff was a national public political figure (S.F. 331,.486, 516) and a recent candidate for high. public office. He knew that the question of integration was a matter of national ‘con- ~ troversy and interest (S.F. 759) ; he knew that his going — _ to Mississippi would create considerable publicity (S. F. 922); he sought that publicity ; he knew that there was an 4 explosive | situation on the campus and that feelings were . . >| high in Mississippi (S.F. 922) ; and that the Chief Execu-_ tive of the State was openly obstructing the mandate of the Fifth Circuit Court. His repeated television arid 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. . If the Times decision applies at all to matters of oublic : concern and participants in debate on public i issues, it clearly — to plaintiff and his conduct in —e. The & & — 108a “ge Appendix C 3 - Application for Writ of Error of Petitioner The Associated _ Press in the Supreme Court of Texas, pp. 1-46 Phtcations conaplained of imthe case at bar were 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.. -,. . , If the Times rule were to be limited to public officials, - a national 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,sbut anyone -who-dared t@ enter the debate by publicly suggesting that the columnist or commentator was a liar in so,stating, would be denied the dthe protection. This is scarcely wide-open — ‘debate. .A defeated presidential candidate. could spend the ensuing four yéars 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 toglo so without it. mares yak 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 liold 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 Government and those who comprise it, they must be free to criticize the critics within the same latitude and under the same rule of law. To hold otherwise would create an imbalance of the freedom of expression and could con-— e A ppendix C Application for Writ of Error of Petitioner The Associated Press in the Supreme Court of Texas, pp. 1-46 = ceivably result in an atmosphere in which an administration could be, toppled by a risiag Castro who, by virtue of holding. no office, enjoyed freedoms of expression about the _ Government that were denied to. those who would criticize _ him. The repressing effect of a half million dollar award. upon freedum 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 Amendment, permit its imposition. As the court said i in the Times case: “Whether or not a newspaper can survive a suc- cession of such judgments, the pall of fear and timidity imposed upon those who would give voice to: public criticism is an atmosphere fn which the ' First Amendment freedoms cannot survive.” Cf. Bantam Books, ‘Ine. v. Sullivan, 372 U.S. 58 (1963) ; Marcus v. Search Warrant, 367 U. S. 717 (1961) ;.Shelton v. Tucker, 364.U. S. 470 (1960); Speiser v. Randall, 357 U. S. 513 (1958). In a comment at 19 Seutinmesting Law Journal 399, concerning the Times and Garrison cases, the author, dis- ',Gussing the scope of the — afforded by those cases, concluded as follows: . “Frequently, protection of statements made against controversial public figures is more impor- gtant than — of those made against public os 110a Appendix C A pplication for Writ of Error of Petitioner The Associated Press in the Supreme Court of Texas, pp. 1-46 _ Officials. Discussion concerning particular minor - ae officials is.much less significant than ‘discussion con- cerning important public figures, such as corpora- tion executives. Thus, protection of statements against all public officials, ‘whatever « ‘the ‘echelon, . seems ‘unnecessary, while protection of statements . against some controversial public’ figures seems a” highly desirable. Thus, a rule strictly.applicable only to defamation against public officials seems unwise. rule when the public interest in the dissemination of -' truth requires it; whether the individual is.apublic official Ora a private citizen. The public interest is _ the correct test, not the popularity or notoriety of ( ' the individual involved. The social utility m protect- . ing statements made ayainst popular entertainers ‘ — ° would be very slight. On the other hand, there would seem to be a great utility in: protecting statements made against labor leaders, who, though not so well known, are closely coririested with -governmefital affairs.” (407) © | os It would be difficult, if not impossible, to conceive of a matter in which the public would have a greater interest than in reports on the activities of a person, already politi- cally prominent, who has taken to the airwaves and called for tens of thousands of persons to léawe their homes and join him at a scene of civil disorder and crisis in a distant leader who is’openly defying the orders of the Federal Oe ne en ee ee A more appropriate solution would be to apply the - — © State,.there to stand beside and assist another political ” llla Appendix C A pplication forW rit of Error of Petitioner The Associated © Press in the Supreme Court of Texas, pp. 1-46 , Courts. There could be no possible reason or consistency whatever in holding that Governor Barnett is within the Times rule, but that one who rises to :stand beside him is not. The object in either case is the same, the solicitation of public support is the same, thé impact upon public opinion * is the same, the potential influence and effect on the out- come of the controversy‘are the same, and consequently the _interest of the public is the same. A distinction based mere- ly upon the fact that the one holds office and the other does not would have no reason and would serve rio purpose that can be imagined. | . Similar comment by legal writers can be found in 9 Villanova Law Review 534, 537; 48 Marquette Law Réview 128, 133; 10 New York Law Forum 249; 42 Texas Law Review 1080, 1084; 16 Syracuse Law Review 132, 135; 26 Montana Law Review 110, 115; 39 Tulane Law Review 355, 362; and 49 Cornell Law Quarterly 581.* It is beyond dispute that General. Walker publicly summoned..his followers ® journey to Oxford, with their flags, tents and skillets, to récord their opposition to and demonstrate against fedéral authority ; that in the very shadow of the Mississippi State capitol, he an- nounced, at a nationally televised. press ‘conference, that he was in Mississippi to stand “beside Governor Ross Barnett” in his defiance of the President and the Federal Courts; that he thereafter arrived at the “Ole Miss” *cam-. pus at 4 time when violent rioting was already in progress: > ~ «8 4 1i2a - Appendix C Application for Writ of Error of Petitioner The Associated Press in the,Supreme Court of Texas, pp. 1-46 RB . that, upon his arrival, General Walker was hailed by the rioters as their “leader”; that he condemned an apenge! - minister for trying to persuade the rioters to disperse;’ that he gave advice to the rioters on how to combat the tear gas which the federal-marshals had used to defend themselves; that he delivered a speech to the rioters in which he told them, by his own admission, that-they had -a_right to protest and that they should continue to Protest _ _-—this at a time when he had personally observed scores of rioters throwing-rocks and bricks at the federal marshals; . that he ‘had approached the Lyceum Building—where federal marshals were defending a by rioters (See pp. 50-77, infra). If, upon these facts and the hysteria and confusion sur- rounding the event, a news medium cannot, without risk - of a $500,000 libel judgment, report that General Walker ‘assumed comniand” of tht crowd and “led a charge” on > the Lyceum Building, then the Constitutional freedoms con- tained inthe First and Fourteenth Amendments are ren- dered virtually meaningless; for, if such reporting, in good - faith, is not to be protected by the defenses of substantial truth or fair comment, or both; then a news medium’s only = recourse is to refrain altogether from reporting ficant, news-worthy events, ever: those which arrest | de attention of the entire nation. Plainly, the holding below constitutes a substantial en- croachment upon freedom of speech and consequént free- dom of débate on the many issues posed by events such as those which occurred at Oxford. . It is no answer to any of the Soregolag to ancurt,. as does the plaintiff (and, adeerentty, the court below), that — ee . ~ > ™ a tne Imei ee ae oe 113a pee AppendieC Application for Writ of Error of Petitioner The Associated. Press in the Supreme Court of Texas, pp. 1-46 _ a reporter need have no fears if he rts only the “facts”. _In the pressure of events and the time limitations inherent in the transmission of news, it would manifestly be im- practical—even if possible—to report a myriad of “facts”, ‘as contrasted with’ conclusions of fact based on the rapidly unfolding panorama of events and sensations. _ Even assuming that a reporter, in the heat and confu-- sion of the moment, could comprehend and apply.a distinc- _ tion difficult of application even for trained lawyers and judges in an atmosphere far removed from the events them- selves, imposition of such restrictions and limitations would virtually prohibit the reporting of the event itself. It is like saying that the A.P. can report the detailed events of a Battle—so long as it makes ne érrors—but if it transmits the conclusion of fact that the battle was lost, it does so only at the risk of suits by the Commanding General. It is of great national interest and significance—for ~ many reasons—that a former General Officer in the United States Army, the Commander of the troops at Little Rock, and one who had but retently campaigned for high public office, had publicly called upon his fellow citizéns to register their defiance of Federal authority and had thereafter, at least apparently, participated in and encouraged. violent acts.of defiance themselves.’ If the ostensible activities of General Walker in this, situation can be “blacked out” or ’ censored through application of the law of libel, coupled at ‘with a restrictive interpretation of the defenses of substan- tial truth and fair comment, then the unconstitutionally. inhibiting effects of the libel laws upon. news media, and upon freedom of speech and press generally, are self-evi- > ‘114a Apperidix Cc Application for Writ of Error of Petitioner The Associated Press ¢ in the Supreme Court of Texas, pp. 1-46 pam It — be impossible, in reporting a riot, to dis- tinguish with precision those persons who were movirig _ toward the objective in a charge ftom those who were mow _ ing toward the objective just to “watch what happened, particularly where, as in this case, both movements ap- .peared identical and charges of that very kind were occur- ring all night and were the rule, not the exception. ‘It is significant that, outlining the scope of the “fair comment” defense in Texas, the starting point of the Fort Worth Court’s analysis was the proposition that a charge, made in good faith and without malice, that a public official is guilty of a crime is actionable under: the libel laws. (Opin. PP. 13-14). . Thus, the very keystone of that court’s opinion is in direct and irreconcilable conflict with the noes § in Times and Garrison. Nor is it wholly without significance that the defense of “fair comment” which was raised in the Times case appears to have been substantially identical to that enun-: ciated by the Court of Civil Appeals here. See New York Times Co. v. Sullivan, supra., p. 267. Where, as here, the defense of “fair comment” is so truncated as to make it, in the adopted words of the-court below, a “weak defense” .. . “subject to so many limita- tions that it is seldom completely applicable,” and where, as here, such limitations are invoked to impose a liability” of ‘half a million dollars for reporting in good faith the facts as they appeared to be, it becomes obvious that the . libel laws are here being used to achieve a result which the Federal Constitution prohibits. Under the rule of the Times and Garrison cases, the . constitutional protection can be denied only upon a show- —iiSa : 2 - Appendix C . Application for. Writ of Error of Petitioner The Associated Press in the Supreme Court of Texas, pp. 1-46 . ing of actual malice, i.e., a showing that thé ‘statement was nfade with knowledge that it was false or with reck- less disregard of whether it was false or not. AS. Ger. rectly held by both courts below, there is no ‘evidence of - malice in the case at bar. Indeed, the trial court, by written ° opinion, expressly recognized that since there was no actual ‘malice the rule of the Times. case, if applicable, would ' require that judgment be. rendered for the defendant (Supp. Tr.) The trial court’s error was in holding that: the rule of the Times case was limited to public officials. Since the Times case cannot be so limited, and ‘since there _ Was no evidence of actual malice, judgment ‘should now be rendered for defendant. - | | = | 116a [a a a APPENDIX ¢ ae : Motion of Petitioner The Associated ] Press for Rehearing - in the Supreme Court of Texas, pp. 1-2 2 No. A-11069 IN THE . SUPREME COURT OF. TEXAS PETITIONER’S MOTION FOR REHEARING ON — APPLICATION FOR WRIT OF ERROR ’ = oo : ’ To THE HONORABLE SUPREME CourRT OF TEXAS: Petitioner, The Associated Press, respectfully submits _ this Motion for rehearing and reconsideration”of its Ap- _ plication for Writ of Error. heretofore filed herein, and which was refused, no reversible error, by- this Court on February 9, 1966, and as grounds therefor resend shows as follows: go i | my , 2% .117a_ oe a ae Appendix C.- cay “ . Motion of Petitioner The Associated Press for Rehearing: ~» "im the Supreme Court of Texas, pp. 1-2 F 1. This Court erred in overruling Petitioner’s First Point of Error, which reads as follows: | ' “The news reports here involved, mdde without malice, concerning matters of grave national con- — cern, @re protected from the claim of libel by the First and Fourteenth Amendments to the Constitu- - tion of the United States, and the judgment herein _ therefore -abridges defendant’s rights thereunder; "sand the Court of Civil Appeals erred in holding to _ * * the contrary.” ees ee because the publications here in Qiiestion are privileged and protected under the, First and Fourteenth Amendments to the Constitution of the United States as interpreted in the cases of New Yur’ Times Co. v. Sullivan, 376 U. S. 254, 11 L. Ed. 2d 686, 84 S.-Ct. 710, 95 A. L. R. 2d 1412, and Garrison v Louisiana, 379 U. S. 64, 13 L. Ed. 2d 125, - 858.Ct . : Judgm ent of the Texas Court of Civil Apbesls. ” a THE po Press | 16624 (No. 31,741-C) vs. July 30, 1965 | Epwin A. WALKER . From the District Court of Tarrant wei _ Opinion Per Curiam. This cause came on to be heard on the transcript. of the. record and the same having been reviewed, it is the opinion of the Court that‘there was no error in the judgment. It is _ therefore ordered, adjudged and decreed that the judgment of the trial court in this cause be and it is hereby affirmed. ‘ It is further orderéd that appellee, Edwin A. Walker, | do have and recover of and from appellant, The Associated Press, and its surety on its supersedeas bond, Houston. Fire and Casualty Insurance Company, the amount ad judged below, with interest thereon at the rate of six per cent per annum from August 3; 1965, together with all costs in this behalf expended, both in this Court and in the trial court, * for which let execution issue, and that this decision be cer-- tified below. for observance. : De tea Bite . 119a - Appendix D " * e . | Epw#® A. WaLKER | Plaintiff US. | | . : | Civil Action CouRIER-JOURNAL AND LOUISVILLE No. 4639 _ TIMES Company, INC. WHAS, INc. Defendants j — OPINION This cause comes on. before the Court on the Defend- ants’ Motion to Dismiss the Plaintiff's Complaint, as amended. 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 Defendants, Courier-Journal and Louisville Times Company and WHAS, Inc., Kentucky cor- Pporgtions, with [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0023%3A15. Public record. Not legal advice.