BARR v. MATTEO

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Argument of Daniel M. Friedman

Chief Justice Earl Warren: 50, William G. Barr, Petitioner, versus Linda (Inaudible) John J. Madigan.

Mr. Friedman, you may proceed.

Mr. Daniel M. Friedman: Mr. Chief Justice and may it please the Court.

The basic issue presented by this case and by the case which immediately follows it is whether government executive officials below the rank of cabinet officer have an absolute immunity for alleged defamatory statements made in the course of their official duties relating to matters over which they have supervision and control.

In this case, the alleged libel consisted of a press release issued by the head of an independent agency.

In the case which follows it, it involved the transmission by a high naval official, two members of Congress, of copies of a report which he had made to his superiors in the course of his official duties.

In each case, the Court of Appeals by a divided court, held that the defamatory statement was not absolutely privileged but only subjected to a qualified privilege.

That is a privilege, which could be -- could be lost by showing that the statement was malicious or that it went beyond what was necessary under the circumstances.

Now, prior to discussing the facts in this case, I'd like to indicate briefly to the Court the policy considerations which underlie the rule of absolute immunity.

I believe that is important because when you deal with a case of this type, one might tend to instinctively react and say, “Well, if a government official maliciously defamed someone, why shouldn't he be held responsible in damages?”

And I think the answer to that was put most eloquently by Judge Learned Hand in the celebrated case of Gregoire against Biddle in which he held there was an absolute privilege governing the performance of official duties by the judicial officers of the Government in a proceeding involving an alleged improper retention in custody of an enemy alien.

Justice John M. Harlan: That is not a libel case?

Mr. Daniel M. Friedman: No, Mr. Justice, but we believe that the principles that are involved are equally applicable.

Now, I'd like us to read briefly two or three sentences to the court in Judge Hand's opinion.

He starts by saying, “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause.

And, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery.

The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.

Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith.”

And then Judge Hand concludes this, says, “As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative.

In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."

In other words, this policy that is sort to be protected by the doctrine of absolute privilege is a recognition that public officials may be hesitant to do their duty freely and resolutely if they know that at some future date, they may be required to come before a jury and satisfy the jury of their good faith.

That they acted properly.

That they did not exceed what was necessary under the circumstances.

It's very easy in one of these cases and it's true in most of these defamation cases for the plaintiff to allege that the defendant did this maliciously.

That he did it with the intention to injure the plaintiff.

This puts the government official in the position of having to be certain that at some future date, he will be able to satisfy the jury of his good faith.

Now, if that is the rule and that is the rule in effect of qualified privilege, what this means as Judge Hand pointed out is that if you've got a case where even though the public interest would call for government action, an official will be reluctant to act.

He will be reluctant to act because at some future date, he may find it necessary to litigate, two years hence, one year hence, the bona fides of which he acted.

Now, we think this consideration is particularly important in the area involved in these cases which is the furnishing of information to the public.

Today, the issuance of press releases is a vital and necessary part of the language our Government operates.

That's frequently the only way in which adequate information may be given to the public.

We've heard recently a great deal of concern with the fact that government officials have been withholding information which the public is entitled to, the emphasis on the public right to know.

Well, from the point of view of the public's right to know, we think that damage could equally be done.

If government officials hesitate to make information public, which they think the performance of their duties requires them to make public because of the threat of this possible litigation.

And the doctrine of absolute privilege is designed to protect this interest by blocking off at the inception these litigation suits to make it clear that if he doesn't -- the official does not have to go in and litigate these particular issues at great time, at great expense and the fear that he may ultimately be held liable for something which is within, he believed, necessary in the case to protect the public interest.

Now, I want to emphasize that this is one of those situations where the particular act involved, the particular statement issued must be weighed on the other hand against the broader, public interest.

Now, with this, by way of background, I'd like to come to the particular defamation involved in this litigation.

This law --

Chief Justice Earl Warren: Mr. Friedman, is there no alternative between those two extremes that you speak off?

Is it necessary to restrain the officer from saying the things in his official conduct and doing the things that he is required to do on the one hand and on the other hand calling the press in and -- and giving a press release that might be defamatory on the -- and be actuated by malice?

Could he not give the information through his official acts and -- and leave the press conferences to -- to other considerations that were in no sense defamatory?

Mr. Daniel M. Friedman: I think, Mr. Chief Justice, the answer to that question is that in this area, the giving out press releases and the making of this information available to the public is an essential part of a government official's duty that one of the important things and such a program is Rent Stabilization is getting before the public.

What the agency is doing, developing public confidence in the agency.

Now, I think if he redefined --

Chief Justice Earl Warren: You mean to the extent of saying anything -- anything that they want about anybody without regard to the truth or without regard to the good motives or anything?

Do you think that all public officials should be accorded the right to say anything they want to say about American citizens whether they're employees or whether they are private citizens and do that with impunity and with immunity?

Mr. Daniel M. Friedman: No, Mr. Chief Justice.

Chief Justice Earl Warren: Where do you stop, then?

Mr. Daniel M. Friedman: We stop at two things - One, it has to be an executive policy making official and secondly, the statements have to be related to the course of his official duties.

If a government official just maliciously goes out and slanders someone and they're having no relation to the course of his official duties, in that situation, he is not entitled.

Chief Justice Earl Warren: Well -- well, let's say that it does have something to do with his official -- his official duty.

Is it the position of the Government that he can say anything he wants about anybody with impunity?

Mr. Daniel M. Friedman: As long as it -- again -- he's of the -- he's performing the kind of function in which the distribution of information to the public is a necessary part and usual part of his job and in addition to that, the qualification that it has to relate to matters committed to his duties.

Chief Justice Earl Warren: All right.

Now, how would you distinguish between those -- those public officials who were entitled and who are presumed as matter of right to give -- to inform the public and those who are not?

Mr. Daniel M. Friedman: Well, I think, again, it would have to be on a case-by-case basis.

I think when you get in this case where you have a man who is the acting head of an independent agency, I think that -- in which I might I add the issuance of press releases was a normal matter, I think this is the kind of an official who has the responsibility of seeing to it that the public is adequately informed.

I think the case which --

Chief Justice Earl Warren: What --

Mr. Daniel M. Friedman: -- is relied on by the Court of Appeals involved the marshall who issued a press release.

Well, we think a marshall is a different kind of official.

He's not a policy-making official.

The -- I might say the line is not an easy one to draw.

It turns on the fact of the particular cases.

Chief Justice Earl Warren: Well, you don't draw any line then.

Mr. Daniel M. Friedman: Well, we only can draw it, I think, in these vague terms of the policy-making official whose function includes the making of adequate publicity in a particular post that he occupied.

Chief Justice Earl Warren: Could this man's assistant do that?

Mr. Daniel M. Friedman: I don't believe so, Mr. Chief Justice.

I think the key to this case is that this man was the acting head of an agency.

He was in-charge of this agency.

Chief Justice Earl Warren: In the next one though, you have the -- the head of -- for the navy yard.

Mr. Daniel M. Friedman: Yes, Mr. Chief Justice --

Chief Justice Earl Warren: Now --

Mr. Daniel M. Friedman: -- and we shall argue in that case --

Chief Justice Earl Warren: Yes.

Mr. Daniel M. Friedman: -- that there, he was under an affirmative duty as distinguished from being within the area of his discretion.

Again, I think it -- it turns on the organization, in particular, branch of the government that you're dealing with.

Now, the petitioner in this case, Mr. Barr, at the time of the alleged libel was the Acting Director of the Office of Rent Stabilization.

The Office of Rent Stabilization was an agency that had been created by the parent organization, the Office of Economic Stabilization pursuant to a specific presidential delegation of a party which in turn derived from the basic act.

Congress directed the President to delegate to this Economic Stabilization Agency the authority to --

Chief Justice Earl Warren: Sorry to interrupt just once more and then -- and then I won't bother your argument.

But you said he was the acting director.

Mr. Daniel M. Friedman: That is correct.

Chief Justice Earl Warren: Once he's the acting director at the time he made this press release, I understood that he was the deputy director --

Mr. Daniel M. Friedman: May --

Chief Justice Earl Warren: -- and was to be the acting director some four days later.

Mr. Daniel M. Friedman: He was, at the time, the acting director by virtue of the fact that the director was out of town and under agency regulations when the director was out of town, the acting director -- the deputy director was the acting director.

Chief Justice Earl Warren: And I suppose then if -- if the deputy director, he was out of town and you have some regulation to subject, the next man, would have an absolute privilege also.

Mr. Daniel M. Friedman: That is --

Chief Justice Earl Warren: And all the -- all the way down as far as you want to -- want to go in leaving town?

Mr. Daniel M. Friedman: Well, I would say, Mr. Chief Justice, as long as under the organization of the agency, whoever was in charge of the agency, whoever occupied all the powers and responsibilities of this agency was the man to whom this privilege would be accorded.

Chief Justice Earl Warren: Right.

Mr. Daniel M. Friedman: The alleged defamatory press release in this case, related to a terminal leave plan which the respondents had prepared and responsible for at a predecessor agency, the Office of the Housing Expediter.

That had happened in 1950, a terminal-leave plan for using up certain terminal-leave had taken place.

At the time, this terminal-leave took place, the petitioner was the deputy director of that agency and he opposed the plans strongly and it was recognized by the respondents in this case that he had opposed it.

But this opposition did not prevail and the plan was effectuated for 49 of the employees of that agency.

Almost three years later, the Office of Rent Stabilization received a request from Senator Williams for some information with respect to this terminal-leave plan.

And the respondent, Mr. Madigan, who is the Director of Administration of the agency prepared a letter for petitioner's signature setting forth the facts with respect to this plan and in petitioner's view, this letter supported the plan.

The letter was not seen by petitioner before it was sent, however.

Petitioner was otherwise engaged in a conference and the letter was signed in his name by his secretary and sent out to Senator Williams.

The following day, Senator Williams made a speech on the floor of the Senate in which he bitterly attacked this terminal-leave plan.

Three other senators joined with him in this attack and it was suggested that the matter which should be investigated by the Senate.

These payments were described as a conspiracy to defraud the Government and as a raid on the treasury.

And this statements made on the floor of the Senate received a great deal of newspaper publicity.

That speech took place on Wednesday.

The press release was issued the next day on Thursday and at that time, petitioner called in these two people involved and tells them that as a result of the adverse criticism of the agency, he was going to suspend them as a disciplinary measure and at the same time he issued a press release.

That the issuance of the press release is as I've stated was a normal practice in the agency at that time.

The press release which is set forth at pages four to five of the record stated that -- announced that he was suspending these two individuals.

He mentioned them by name and he stated in June 1950, “My position in the agency was not one of authority which would have permitted me to stop the action.

Anyone who ought to say while I was advised that the action was legal, I took the position that it violated the spirit of the Thomas Amendment and I violently oppose that the Thomas Amendment in passing was an amendment to the General Appropriations Act which required leave to be used within a certain period and prohibiting carrying over annual leave into the next year.”

And he issued this press release.

Shortly, there --

Justice Hugo L. Black: Which part of that press release is relied on that did not --

Mr. Daniel M. Friedman: Well, I think it's the theory of the -- suited as by innuendo that since these people have -- that this scheme had been referred to on the floor of Congress as a conspiracy to defraud the Government and it's a raid on the treasury when he indicated that he was suspending the two people who had been responsible for it by innuendo, the suggestions, he was accusing them of being parties to a conspiracy to defraud the Government and raiding the treasury.

Justice Hugo L. Black: But did it say that?

Mr. Daniel M. Friedman: No it did not, Mr. Justice.

What it stated was that what he was doing and he was explaining the reasons why it was -- why he believed it was necessary to suspend these people.

And in considering the press release, I think it's very important to remember that this followed by one day these speeches on the floor of the Senate which had gotten wide publicity and which necessarily would hold the agency up to public criticism and scorn.

People would think that this is one of those government agencies where people were engaging in a regular practice as an -- we believe that he was fully justified in issuing this press release in the circumstances in order to regain public confidence in the agency and for him to make it clear that he did not condone this plan which had been criticized and that he was taking disciplinary action against the persons responsible for it.

The libel action was filed shortly after the issuance of the press release.

The District Court rejected the contention of Mr. Barr that it was absolutely privileged, held that it was not even covered by a qualified privilege and sent the case to the jury solely on the question of whether one, the publication was defamatory and two, if it was, whether the -- plaintiffs were entitled to punitive damages.

The jury returned a verdict in favor of the plaintiff for $6500 and $2000 respectively.

The Government appealed to the Court of Appeals rather Mr. Barr appealed, the Government was representing him as counsel in the case and raised at -- in that stage of the case only the question of absolute privilege.

The District Court by a divided court sustained the ruling of the District Court that there was no -- there was no absolute privilege.

The court reasoned as follows - it said that the defendant's decision to suspend the plaintiffs and his execution of any documents appropriate to that end were probably within his general line of duty.

And if so, if he had written a letter to his superior explaining what he was doing, that would have been within his line of duty.

However, the court went on, in explaining his decision to the general public, the defendant went entirely outside his line of duty.

And then the court suggested that if in this case, the defendant had been a cabinet officer, the public explanation might have been absolutely privileged.

However, it went on and said they didn't have to reach the question whether the public explanation of the head of an independent agency such as the Atomic Energy Commission or the director of the parent agency, the Economic Stabilization Agency would be entitled to a qualified privilege.

They said they didn't have to reach that situation.

They said that this man, the acting head of the -- of the Office of Rent Stabilization was not in that character -- category.

And they analogized his position to that of the United States Marshall, which in a previous case, the Court of Appeals had held was not covered by an absolute privilege.

Justice Hugo L. Black: Would you mind stating now where did you say, shown his authority to issue press statement?

Mr. Daniel M. Friedman: There is no --

Justice Hugo L. Black: What -- what do you rely on that then?

Mr. Daniel M. Friedman: We rely on the general authority given to him to conduct the operation of this agency the delegation to him by the Director of the Economic Stabilization Agency gave him -- made him responsible for the effective development and administration of an appropriate program of Rent Stabilization.

And we think this broad authority given to him as head of this agency necessarily carried with it the authority to issue press releases to make known to the public what his agency was doing.

I -- I would suggest, Mr. Justice Black, I don't believe that in any if the government agencies authorizing legislation there is any specific authority to issue press releases.

This is just the normal inherit function of Government to publicize --

Justice John M. Harlan: Isn't there some negative regulation by the head of the department to strip the -- the subordinates which in fact press release (Inaudible)?

Mr. Daniel M. Friedman: Generally, I don't know whether it's in specific terms, but it's understood.

I mean, certainly, I have no authority to issue press releases for the Department of Justice.

I don't know whether there's a specific authority.

But I want to emphasize that this man was the head of the agency.

This was not a subordinate official.

This was the man who, at the moment, was in full charge of this agency and had full responsibility for carrying out the Rent Control Program.

Chief Justice Earl Warren: The entitlement depend on the agency itself?

Mr. Daniel M. Friedman: It is an independent agency but the head of the agency is not -- was not appointed by the President.

He was appointed by the prior agency, the agency above this, the Director of Economic Stabilization.

Chief Justice Earl Warren: But isn't that the -- isn't that the independent agency and this is just a division of it?

Mr. Daniel M. Friedman: No, Mr. Chief Justice.

I think it's more than just a division because this man was not -- was not reporting back to the Head of the Economic Stabilization other than consulting on the broadest policy grounds.

He was the one who had the full responsibility for promulgating the rent regulations, for hiring and firing, for taking whatever steps were necessary to carry out an effective program of rent control.

Chief Justice Earl Warren: But who was his immediate superior, if anyone?

Mr. Daniel M. Friedman: Well, I -- I would say that in the sense in which you're using it, Mr. Chief Justice, he didn't have an immediate superior except in the sense that he reported to the head of the of -- the Director of the Economic Stabilization Authority, in much the same sense, I suppose, that a cabinet officer reports to the President.

In that sense, this was his superior.

Chief Justice Earl Warren: Could the -- the Economic Stabilization Administration have -- have directed him as to -- to his responsibility for -- for making and not making press releases?

Mr. Daniel M. Friedman: I think it could have.

It could have, but I think in view of the fact that the delegation to him by the Economic Stabilization Authority was in the broadest of terms, they have given unto him the power to decide whether to issue these press releases or not.

Now, in the case of cabinet officers, as a result of this Court's decision in Spalding against Vilas it's been considered settled from 60 years that a cabinet officer has absolute immunity for defamation even though he is not under a duty to issue the statement in a sense that he's affirmatively required as long as this Court said that the statement relates to matters having more or less connection with the general matters committed by law to his control or supervision.

In other words, as long as you're within the broad area within which the official is authorized to act, he cannot be held responsible for something done in the exercise of that authority merely because it's alleged that he's behaved maliciously, that he did it with the intention to injure the plaintiff.

Justice Hugo L. Black: Was that a press release?

Mr. Daniel M. Friedman: No, Mr. Justice.

That was a statement by the Postmaster General in which in connection with payment of certain claims, he put some statements in the letters to the claimants which were viewed as -- but the plaintiffs alleged were -- was -- were defaming a man who's been a lawyer for the claimants.

But that principle, the principle of Spalding against Vilas has been extended by the Court of Appeals in two cases to cover press releases by cabinet officers in both Glass against Ickes and Mellon against Brewer.

And those cases recognized that the cabinet officer, at least, was absolutely privileged in issuing a press release relating to matters generally committed to his supervision and control even though he was not specifically authorized or requested to do this.

In other words, it doesn't make any difference in the basic theory whether the government official is specifically directed to do something or whether he does it within the broad framework of his power as long as he remains within that broad framework.

Now, we think the Court of Appeals, in this case, when it said that the petitioner went outside his line of duty in issuing the press release has drawn an unduly narrow standard because what constitutes the line of duty necessarily has to vary with the particular individual involved.

In the case of a man of this position, who was the head of an agency, we think that his line of duty, as that phrase is used by the Court, necessarily includes the taking of whatever steps are necessary to obtain adequate publicity for the work of his agency.

And here, this agency had been subjected to very serious criticism and we think he was fully warranted in the circumstances in issuing a press release explaining that he did not condone this plan and that he was taking disciplinary proceedings against the author of that plan.

And I don't put it a little differently that when you redeal with an official of this rank but just as in the case of the cabinet officer, his line of duty is not limited to things which he is specifically charged with doing in the sense that there's a regulation directing him to do it but broadly covers all acts having more of a less connection with the general matters committed by law to his supervision of -- and control.

And I want to again emphasize that a rule which would require a high government official to litigate his good faith in the issuance of a press release would inevitably result and that people of this level would hesitate if they had any doubt as to whether this might subsequently be misconstrued as to whether it could be argued if they were malicious, they'd be conservative.

They would hesitate to put out information to the public even though they believe that the public should have this information and even though, equally important from the other side of the fence, the public should have the right to this information.

Justice John M. Harlan: A little conservatism might be a good thing.

Chief Justice Earl Warren: [Laughs] I was about to ask that.

Mr. Daniel M. Friedman: Well, I think, Mr. -- Mr. Justice, that in dealing with this, we have to start with the assumption that a government official holding an important post is perhaps the best one qualified to know what carrying out his duties requires in the way of giving adequate publicity.

Now, if a government official is abusing his trust, if he is wantonly issuing press releases defaming people, there are other remedies in terms of carrying on the overall government functions.

He can be removed from the office.

Justice John M. Harlan: Are there are any statistics as to how many government employees or one kind or another is sued of libel every year?

Mr. Daniel M. Friedman: I don't know of those statistics.

I know there are a fair number of cases that have been decided and I think to some extent the amount of this litigation may have been restricted by what had previously been regarded as a well set of rule that action within the scope of his authority by a government official was absolutely privileged.

I think these -- these -- this case and the next case are the only two cases of any appellate courts, federal appellate courts that I know with the exception of the Marshall case which upheld a government official responsible for defamation in the course his official duty and there are host cases the other way.

Justice Hugo L. Black: Do you think your case is as strong as it would be if Congress had specifically authorized the giving of press releases by this agency?

Mr. Daniel M. Friedman: I would have to say yes, Mr. Justice, because we think this is an inherent function, an inherent power of the agency and that --

Justice Hugo L. Black: And then why -- if it has not come -- it didn't come from the statute, this comes from the practice of custom or the Constitution?

Mr. Daniel M. Friedman: No, I think it comes from -- inherent in the basic statute creating the agency, includes the right to -- it take all steps necessary effectively to function, including the right to issue any publicity that is necessary.

Justice Felix Frankfurter: Who determines, Mr. Friedman, what positions are, I'm referring to the order modifying the court's opinion, who determines, who -- what -- who officers whose positions are comparable to those of the cabinet officer?

Mr. Daniel M. Friedman: The courts do.

Justice Felix Frankfurter: The courts?

Mr. Daniel M. Friedman: I think in every --

Justice Felix Frankfurter: Certainly, for the 20 years, persons that held the cabinet meetings, all sorts of officials and I don't mean just called in occasionally, where an English prime minister calls to the minister was not a member of the cabinet but a regular attendant.

Cabinet meetings have become town meetings in the White House only.

How -- or if the courts says, how do you determine whether that is comparable?

Mr. Daniel M. Friedman: I would --

Justice Felix Frankfurter: In my young days in Washington, the Commission of Indian Affairs was one of -- one of the most important of officials.

He had a -- he had a function and a public significance --

Mr. Daniel M. Friedman: Oh, oh, yes.

Thank you.

Thank you very much.

Justice Felix Frankfurter: (Inaudible) some sleeping cabinet member.

I don't mean a particular one in the office was very much in the political limelight, if he should be, would he then have been incomparable to --?

Mr. Daniel M. Friedman: I would -- I would think so, Mr. Justice, depending on basically the function that he was performing, we extend his responsibilities, to what extent he had discretion and freedom to act, to what extent he had to do things only upon the approval of the subordinates in a sense that he might is a command type of responsibility be in his own capacity had the responsibility for carrying out an important program.

I would say that in that situation, he would be entitled who should have this immunity.

In other words, if it's a kind of a function where you could fairly say that it's necessary for him to have this immunity in order to encourage him to carry out his (Voice Overlap) --

Justice Felix Frankfurter: Don't you think he might argue the other way?

The higher the officer, the more -- the more you might expect from him not to indulge in defamation, not to be restricted by these inhibiting fears that if he talks, he'd get into trouble.

People in high position (Inaudible) to expect -- you expect them to be stouthearted and courageous, et cetera, whereas the fellow down the line, he ought not to make it when any such demand upon him.

Mr. Daniel M. Friedman: Well, again, I think that the high official who tends -- who is more stouthearted, even he might be restrained by the fear of this litigation.

Justice Felix Frankfurter: And I think he might.

All I'm saying is except on the principle to him that perhaps shall be given by the cabinet officer, should he allowed to roam at large whereas somebody in charge of very important functions of Government, but not as cabinet officer should run the hazard of lawsuits to raise the questions in my mind?

Mr. Daniel M. Friedman: Well, I -- I agree and I suggest that perhaps the reason for this distinction is that the first case, which involved this problem, which came before this Court did involve a cabinet officer and I think that set the pattern and then the case filled it down.

I want to emphasize that today, many very important government functions are performed by people below cabinet rank and that if you attempted to limit it to cabinet rank as has apparently has been suggested, simply there will be whole areas where people have individual responsibilities I suppose, for example, the secretaries of the services are no longer considered, I suppose, as cabinet rank technically.

And similarly, in the independent agency field, independent agencies today have vast power and in many of these areas, publicity is of vital importance to the effective functioning of the agency.

Justice Felix Frankfurter: Well, then that's something that's relatively recent in Government, the number of officials that are attached directly to the executive office, directly attached to the President, any kind of a chart they'd run down from the President and under the cabinet --

Mr. Daniel M. Friedman: Now, I would --

Justice Felix Frankfurter: -- and under his personal responsibility and they are liable to nobody except the President.

I should think they are a beast of evil as a cabinet officer from whether it fills any rule of law.

Mr. Daniel M. Friedman: I would think so, Mr. Justice, and I would think that it's just as important to the public interest that they be given the same measure of exemption from liability to encourage them to carry out their duties as the cabinet officers.

Justice Felix Frankfurter: I didn't mean to commit myself to that.

I simply meant that if the course composes scrutiny and you'll retain your -- the position, the activity of (a) the cabinet and (b) the functionalities that aren't members of the cabinet at all.

The whole -- the whole operations of the Government which have now impact in the significance, that the same cabinet and non-cabinet doesn't answer.

Mr. Daniel M. Friedman: I would like to suggest one analogy which is the development of the privilege with respect to judicial proceedings.

Originally, this proceeding, the privilege covered only the actions of the judge.

But since it was recognized, the protection of the institution of the judiciary required not only that the judge be given the privilege but all the people who are necessary parties to the judicial proceeding be covered.

It's been extended and it now covers counsel, witnesses and juries and so forth and this to us indicates the importance of this privilege in protecting the basic institution that is necessary for the privilege to exist in order that the institution may continue to function effectively to perform the important public tasks for which it was created and to make sure that in the effect of functioning of this institution, the people responsible for it feel free to say whatever they think is necessary to carry out that task.

Chief Justice Earl Warren: Can a judge issue a press conference after -- decided the case and say anything he wants to about any -- any citizen or any employee of the Government and have immunity?

Mr. Daniel M. Friedman: I would think probably not as a general proposition.

But I would suggest, Mr. Chief Justice, that the judge's functions in this context is somewhat different than those of the members of the executive branch of the Government the -- just as his function is completed after he has decided the case and rendered his opinion.

Chief Justice Earl Warren: I know, but suppose the clerk of this Court thought it was carrying out the policy of the -- of the Court to explain these relations to the public and -- and issue the press release which was defamatory of some -- some citizen and that it was conceded that he did it with malice, do you think he would have immunity from libel?

Mr. Daniel M. Friedman: Well, I think, again, it might turn on the particular facts.

Chief Justice Earl Warren: Well, let's take the facts I gave you.

Mr. Daniel M. Friedman: If -- I'm sorry.

I -- I can't answer it in general terms because --

Chief Justice Earl Warren: Well, let's do it specifically then.

I gave you the fact that it's the clerk of this Court will say and he was of the opinion that it was necessary to explain the relations of this Court to the -- to the public and he took occasion to issue a press release which was both admittedly defamatory and admittedly malicious concerning someone who had been in the litigation, --

Mr. Daniel M. Friedman: I -- I --

Chief Justice Earl Warren: -- would -- would he have immunity?

Mr. Daniel M. Friedman: I would think probably not because I don't think that would be part of his official functions as the clerk of this Court to be issuing press releases.

I think, Mr. Chief Justice, however, if you directed him to issue such a press release, then he would have immunity if that function had been specifically delegated or if by custom it was the function of the clerk of this Court to issue press releases explaining pending cases, then I think he would have.

But I --

Chief Justice Earl Warren: You -- you think that although there's no statutory authority for it and nothing in the Constitution says we can.

That it's a question of -- of judgment on our part whether we give anybody that responsibility.

But if we do, why, we give him blanket immunity to say anything he wants to say about anybody with malice concerning anything that's gone through this Court.

Mr. Daniel M. Friedman: Well, Mr. Chief Justice, when you put the case in terms of malice, that's a particular difficult case, I think.

But I suggest that, if the clerk of this Court issues malicious press releases, that his authority can be taken away.

But if the problem as I suggest, Mr. Chief Justice, is that if the clerk of this Court were directed as part of his duties to issue press releases whenever he thought it was necessary and appropriate, the problem as we see it is whether he should be penalized, in effect, put on the -- in a situation where every time he issues a press release, even though he thinks it's necessary and believes it's important to the functioning of this Court, that he should have to say, “Well, now, wait a minute.

Let me see.

Maybe I better not issue it.”

And the result, we think, in that situation not only in this Court but in the case of all the people counting on policy making functions would be that he would hesitate to issue an information which is necessary to the person.

I'd -- I'd like to draw the distinction, the basic distinction --

Chief Justice Earl Warren: But I'd like this to just carry on what Judge -- Justice Harlan asked you.

Don't you think that would be a good thing for Government rather than to -- rather than to be detriment and an injury to Government?

Mr. Daniel M. Friedman: No, I -- I'd have --

Chief Justice Earl Warren: If he had -- if he had some caution in doing so?

Mr. Daniel M. Friedman: Well, I -- I think that normally, responsible government officials will exercise caution into the extent that they will not ordinarily throw out these wild charges without any ground.

But I think that as to where our Government has developed that there is this great need for information to be distributed.

Justice Felix Frankfurter: Does your -- does your brief have an appendix in which you set forth the systematic watchfulness of the press in the frequency or infrequency with which public officials give press conferences in this time?

You couldn't have such an appendix.

Mr. Daniel M. Friedman: I'd be --

Justice Felix Frankfurter: I mean (Inaudible) regularly.

There are regular statistics on the frequency or infrequency in which cabinet officers and other high officials hold press conferences and their editorial powers are suspended for holding them.

Chief Justice Earl Warren: Well, I -- I'm sure you don't take from what I say that I object to press conferences.

It's only where they claim immunity from -- from libel for defaming somebody even with malice that I -- that I question the -- the --

Mr. Daniel M. Friedman: Or --

Chief Justice Earl Warren: -- procedure that --

Mr. Daniel M. Friedman: I -- I --

Chief Justice Earl Warren: -- certainly press conferences are --

Mr. Daniel M. Friedman: I -- I --

Chief Justice Earl Warren: -- are desirable.

Mr. Daniel M. Friedman: -- think --

Chief Justice Earl Warren: Certainly the public must know, but does that carry with it the -- the immunity to -- to one who maliciously defames the character of another?

There's a great difference between the responsibility of -- of informing the public through -- through press conferences and in -- in all other means on the one hand, from using those things with malice to defame a citizen on the other hand.

Mr. Daniel M. Friedman: I think, Mr. Chief Justice, the answer was given by Learned Hand when he said that if you could be sure that litigation of this type could be restricted to the cases where there was really a malice, which is really malicious, “of course, it would be monstrous,” he said, to deny recovery.

But there are many areas where it can easily be alleged it was malicious and then the official finds himself forced to try to justify some subsequent data bona fide and I think it's basically a balancing of the public interest that this Court stated when it remanded this case previously to the Court of Appeals, passed on the question of qualified privilege, the protection of the interest of the person who have been injured on the one hand and the protection of the public interest in the right to know.

And we just think that when this is balanced, that the balance favors protecting the public's right to know and encouraging free expression and action by officials and therefore, that absolute privilege would protect the official from having to justify himself at some later date as to the place where it's public knowledge.

Chief Justice Earl Warren: But couldn't they qualify the privilege itself to either balance what you seek?

Mr. Daniel M. Friedman: I don't think so, Mr. Chief Justice, because the qualified privilege does the very thing that we think is necessary to prevent by the absolute truth, that is, if you have only a qualified privilege in every case, the official knows that if he does act and he thinks it's reasonable, he nonetheless at some future time may be called out to defend his actions before a jury dealing with such intangibles with malice, whether he had reasonable cause to believe the truth of what he said, whether it's publication went beyond what was necessary.

All of these intangible factors which we think will seriously inhibit him in the performance of his official act.

Justice John M. Harlan: What's the status of this case now?

As I understand, it's back in the trial court for retrial, is that right?

Mr. Daniel M. Friedman: For retrial on certain issues with respect to qualified --

Justice John M. Harlan: To qualified privilege.

Mr. Daniel M. Friedman: I'd like to reserve the balance --

Justice Hugo L. Black: May I give you just one other question.

I -- I don't quite understand your argument in this respect.

As I gather, what you're saying is that this officer like the cabinet officer has a governmental responsibility.

This is not statutory, but you -- you assume now that he has a governmental responsibility to give out press statements.

Do you say that any official, who certainly have certain high rank in the Government has the responsibility, he should not be held liable at all even though it's malicious.

Mr. Daniel M. Friedman: That is --

Justice Hugo L. Black: Why?

Why?

If that is the case, should that not apply to any government agent, whatever his position who is charged by the responsibility of law to give press releases.

What excuse could there be for saying that certain ones in high places could get release but the people who are in low places, who are little less eager to disobey orders, sometimes even in those of high places?

Why would your argument would not care all the way to me?

Mr. Daniel M. Friedman: Well, I think --

Justice Hugo L. Black: If it's their duty.

Mr. Daniel M. Friedman: If --

Justice Hugo L. Black: Assuming it's their duty.

Mr. Daniel M. Friedman: We -- we drew a distinction between duty in the sense of an affirmative obligation.

That this is something he has to do --

Justice Hugo L. Black: Well, that's what I'm talking about --

Mr. Daniel M. Friedman: And duty in the broad discretionary sense.

We think it will develop in the next case that if there's an affirmative duty, he is entitled to the immunity.

Justice Hugo L. Black: Without regard to his status?

Mr. Daniel M. Friedman: If he's carrying out an official order, if he's doing what he's directed to do.

But this case involves a man who has got the area of discretion in the performance of his -- he's not specifically charged as we shall show in the next case where he was specifically charged.

His duty was sending something.

That's, we think, a different case.

The man was required to make a report to his superiors.

There, we think clearly in the case that it consistently held that there is an absence of immunity in that situation.

We're dealing here, we think, with the case of a broader area, a discretionary officer who has a broad discretion for carrying out his duties of which we think includes the right to carry out and issue whatever press releases are necessary.

Justice Felix Frankfurter: Mr. Friedman, I didn't quite -- no, I didn't at all understand your answer to Justice Harlan's question as to what the posture -- where we are in this case.

I understand that the Court of Appeals merely decided there is no absolute privilege.

Isn't that all they've decided?

Mr. Daniel M. Friedman: No -- no, Mr. Justice, the would --

Justice Felix Frankfurter: But I thought they wouldn't go into qualified privilege because there's a waiver?

Mr. Daniel M. Friedman: That is correct.

But then when this Court vacated and remanded --

Justice Felix Frankfurter: Yes.

Mr. Daniel M. Friedman: On the remanded proceedings, the Court of Appeals held that there was qualified privilege.

That's set forth at page 50 --

Justice Felix Frankfurter: That was (Voice Overlap) --

Mr. Daniel M. Friedman: They held that there was a qualified privilege and then they said that he had not -- the petitioner --

Justice Felix Frankfurter: That is if -- if the Court want to agree with you, that -- that would be an end of the case?

Mr. Daniel M. Friedman: Yes, Mr. Justice, if this Court would --

Justice Felix Frankfurter: But we cannot escape in deciding this case staying soundly to the problem of qualified privilege.

Or don't you have to give any heed to that on the theory that that goes back anyhow?

Mr. Daniel M. Friedman: I -- we're not raising here any question with respect to qualified privilege because under the decision of the Court of Appeals, they stated that the matter would have to go to the jury to pass on certain questions of qualified privilege.

If this Court agrees with us that there is an absolute privilege --

Justice Felix Frankfurter: Then -- then that's the end of the matter.

Mr. Daniel M. Friedman: That's the end of the case.

If the Court disagrees with us, then it goes back and it goes back --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Daniel M. Friedman: That's right, for a new trial.

Justice Felix Frankfurter: Well, are you -- are you prepared to say on the quest of jurisdiction that we are to consider the question in this case?

Mr. Daniel M. Friedman: No.

We are not asking this Court to consider that question.

Justice Felix Frankfurter: Which -- but are we -- is the question of absolute privilege open to us on any -- with due regard to our jurisdiction?

Mr. Daniel M. Friedman: I -- I think so, Mr. Justice, because the Court of Appeals has rejected the defense of absolute privilege.

Justice Felix Frankfurter: Well, I understand that.

Mr. Daniel M. Friedman: And if that defense were accepted, that would be the end of this case.

Justice Felix Frankfurter: This is a sort of a contingent appeal then, isn't it, for qualified appeal?

Mr. Daniel M. Friedman: No, I think the -- you've got the ruling by the Court of Appeals that there is no absolute privilege in this situation.

I suggest that the --

Justice Felix Frankfurter: (Inaudible) if you go back to trial, it's the same with qualified privilege.

Mr. Daniel M. Friedman: They might, but that it seems to us would require that in this case the petitioner do the very thing which we think the doctrine of absolute privilege was designed to put a void, that is litigating the question of his good faith, litigating the question whether he had reasonable grounds --

Justice Felix Frankfurter: I suppose the answer to my -- should we say to my difficulty, is not merely that he did it but he had a right to do it because the review of the Court of Appeals did not require finality.

Mr. Daniel M. Friedman: That is correct, because that's an important question.

Chief Justice Earl Warren: Mr. Friedman, we've taken so much in your time in questions and I -- I more than anyone else that you may have five minutes -- five minutes in rebuttal if you would.

Mr. Daniel M. Friedman: Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Scott.

Argument of Byron N. Scott

Mr. Byron N. Scott: Mr. Chief Justice and Mr. Associate Justices may it please the Court.

It seems to me that the true significance and the total impact of this particular case is elucidated by the question that was asked in the close of Mr. Solicitor General's argument by Mr. Justice Black why shouldn't everybody in Government be immune?

Justice Felix Frankfurter: Are you going ask that --

Chief Justice Earl Warren: From just --

Justice Felix Frankfurter: -- if any rule of law that isn't expressed in absolute terms, you get back that you draw a line doesn't mean that there aren't -- that you can completely draw a line?

Mr. Byron N. Scott: Exactly, Mr. Justice Frankfurter.

And that is what the Government has contended for, not the drawing of a line but if it can be made out the duty of an official or if it is something that he does that has some relationship to his official duty, then they say he should have immunity from suit for defamation of character.

And it is government officialdom against people and I think that I have here the right to speak for people and that for years from the beginning, the law says that if somebody speaks falsely of me and it holds me up to ridicule or to tempt or obliquely before people that I am entitled to come in to the court and have my remedy against him for destroying my good name and my reputation.

Justice Felix Frankfurter: That isn't true of a case 500 odd people in this land.

They can say anything they please across the --

Mr. Byron N. Scott: Mr. --

Justice Felix Frankfurter: -- hill as I say.

Mr. Byron N. Scott: Mr. Justice Frankfurter, there -- I -- my next comment was to be that there are exemptions to that rule.

One of them is created by the Constitution.

One of them says that no member of Congress, be it a senator or a congressman can be held liable for words spoken in the Chambers in debate.

Justice Felix Frankfurter: How many judges are there in this land?

Mr. Byron N. Scott: The second exemption that has been made to the General Rule is in the case of courts.

Justice Felix Frankfurter: That's not in any constitution.

Mr. Byron N. Scott: It's not in the course -- in the Constitution.

Justice Felix Frankfurter: All right.

Mr. Byron N. Scott: It is court made.

It was held and this was determined that a judge acting within his jurisdiction, if he had jurisdiction to act, could not be held liable for anything that transpired within the court proceeding.

Then that has been extended to phase out judicial proceedings.

And it has been necessary to pleading and it has been extended to testimony, unless the testimony or the pleadings were very much irrelevant.

Justice Felix Frankfurter: But do you think that's the technical rule?

Mr. Byron N. Scott: I think it's a rule.

It has been made for the courts and I think --

Justice Felix Frankfurter: I guess I know politics to protect themselves and protect themselves out of general responsibility?

Mr. Byron N. Scott: No, Your Honor.

No, Your Honor, not at all.

Justice Felix Frankfurter: It's got some reason, doesn't it?

Mr. Byron N. Scott: It has reason, but high --

Justice Felix Frankfurter: They have policy as to whether the relevant policy are --

Mr. Byron N. Scott: It has policy behind it and that's what the -- what the Solicitor General said, that this is a question of public policy, to what extent must the right of the citizen to his quite good name and his reputation all the way in face of the necessity for immunity on the part of some officials to speak their minds and to make their act without fear of being hauled in the courtroom.

And that --

Justice Felix Frankfurter: When you say necessity, you mean that?

Mr. Byron N. Scott: I beg your pardon?

Justice Felix Frankfurter: When you say necessity, you mean courts couldn't function if they didn't have that immunity?

Mr. Byron N. Scott: It has been so held that it is necessary for --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Byron N. Scott: -- them to hold, have that immunity.

Justice Felix Frankfurter: It's been held that they haven't got the immunity but it couldn't be held they couldn't function without it.

Mr. Byron N. Scott: No, it's never been said --

Justice Felix Frankfurter: That would go against --

Mr. Byron N. Scott: -- the court could not --

Justice Felix Frankfurter: -- that fact.

Mr. Byron N. Scott: -- function without it, but it was held by the courts that judges should have this immunity.

Justice Felix Frankfurter: Why?

Mr. Byron N. Scott: For the very reason that -- it was mentioned a moment ago that they could not speak out fearlessly in the cases saying if they thought they would be held in the Court.

Justice Felix Frankfurter: Do you think public administrators are more -- ought to be held to a higher degree of fearlessness than justice?

Mr. Byron N. Scott: No, Your Honor, but there is a distinction between judges and deputy directors are in control officers.

And may I speak just a moment again to the acceptance.

Justice Felix Frankfurter: But is it really looking them in the -- little justice of the peace.

Mr. Byron N. Scott: Yes, Your Honor.

If the justice of the peace is appointed by us County Council, he may be removed by the County Council.

If he is elected by the people, he may not be elected the next time if he abuses the privileges of his office.

But take the administrative man in the lower echelons of government.

Take the Deputy Director of the Office of Price Stabilization.

There is no deterrent to his abuse of a privilege if granted it this way.

How do you relook --

Justice Felix Frankfurter: How to fire a (Voice Overlap) people are constantly fired from the public office.

Mr. Byron N. Scott: And people are constantly put back into their jobs because several lawyers come along and prove that the regulations have been violated or the Civil Service Act has been violated or this was done because of somebody is in discretion or it was abuse of his discretion.

It is difficult, Mr. Justice Frankfurter, to fire a civil servant.

It is difficult.

It has been done, but when you compare the ease, look again to the congressman and the senators, by the immunity, there is a powerful detriment to the abuse of a privilege by a congressman or a senator.

He may be censured by his own by body, he may be expelled by his own body, he may be defeated by the electorate.

There is a reason for distinction between members of the President's cabinet and executives lower in the echelons of Government.

A member of the President's cabinet may be impeached.

Judges may be impeached.

Justice Felix Frankfurter: I'm sure, more, lower officials have been fired than members of the cabinet have been fired the members of the cabinet have been fired in our history.

Mr. Byron N. Scott: No doubt and I think there are cases in answer to a question that was raised earlier.

That there are three cases in which a press release has libeled somebody.

There is the case us before here.

There is the case to succeed this one.

There is the case of Glass versus Ickes.

There hadn't been cases of this kind, Your Honors, because government officials do know that they or they may have the right to inform and the duty to inform, they inform truthfully.

They don't give vent to press releases such as the one before this Court where it is called to the attention of all of the people of the country through the newspapers that this man, the director -- the deputy director intends come next Monday to suspend these people because they were responsible for the adoption of this plan and the accusation to the court and the jury carried the implication that there had been something reprehensible.

But that wasn't the case.

The press release said these people were responsible.

The facts were that this agency was about to expire.

Everybody in the agency was looking for some way to keep the agency together until they found out whether Congress was going to create it again and give it money to operate.

And the director of personnel and management where the responsibility rested said to his director, “We might do it this way.”

His director and this is in the record, his director said, “That's difficult to understand.

We won't do it over the entire agency.”

And later, they came back to the director and said, “Some people want to do it, they will do it if we ask them to.”

And the director of the agency, not this man who is here as petitioner, but the director of the agency said, “All right, if they want to do it, it is all right with me.”

There was responsibility, yet the press release said that these people were responsible.

It was all done in the openness way, in the determination of whether this plan would or would not be used.

It was discussed there was nothing surreptitious.

And then it came -- the issuance of the press release by and I make the distinction and I think it's important -- the deputy director who said, “When I become the acting director, I am going to suspend.”

He said in his press release, “I don't have the authority to do it now.

Monday, when I become acting director, will be the first time that I've been able or have the power to take any action.”

And on Monday, the following Monday, he issued this suspension order.

Now, the question was raised in different ways as to whether or not this man, the petitioner, was the head of an independent executive agency, whether that he was the head of an executive agency, whether he was the head of an independent agency and if this power, if this immunity for government officials who may issue press releases to have immunity from defamation no matter what they say or what may be their minds, I can see, Mr. Justice Frankfurter, and no reason other than the deterrent principle of restricting it to the top man of the cabinet, the President he hasn't.

I don't know.

I don't know of any case which says that the President may issue a press release upon an individual citizen and detain him would you give him an immunity.

I don't know why this man as the head of this agency should have that power.

Was he the head of the independent agency?

What happened is (Inaudible).

He issued the -- issued the suspension notice and appeal was taken by two employees to the head of the ESA, the Economic Stabilization Agency of which the Office of Rent Stabilization was a branch.

Justice Felix Frankfurter: Was this fellow, this officer a civil service man, who worried about civil service rule? Is this covered in his position?

Mr. Byron N. Scott: Yes, Your Honor.

He was not a presidential appointee --

Justice Felix Frankfurter: No, but --

Mr. Byron N. Scott: -- and he was in the classified service of -- rather than being on accepted status, he was a civil service employee with status.

Justice Tom C. Clark: Who appointed him in his place?

Mr. Byron N. Scott: He was appointed by the Director of the Economic Stabilization Administration who at that time was acting, Mr. (Inaudible) who later replaced by Dr. Fleming who is now secretary of ATW.

Justice Tom C. Clark: Even with -- be entitled to the (Inaudible) Civil Service Regulation Commission on dismissal?

Mr. Byron N. Scott: Mr. Justice Clark, I'm embarrassed because I don't know whether the petitioner was or was not a veteran.

If he was a veteran, yes, he would have had an appeal to the Commission, the -- the director -- we're talking now the deputy director.

He would have had an appeal if he were a preference eligible, a veteran.

He would have had appealed to the Civil Service Commission.

His appointment did not require confirmation by the Senate.

He occupied no political position as such.He had been deputy director under the Truman administration.

He became acting director under the Eisenhower administration.

He was not a political appointee.

But after he issued his notice of suspension that was appealed, an appeal if you please to his direct superior, the head of the Economic Stabilization Administration.

A hearing was held.

It was recommended that the suspension be cancelled.

But the head of the parent agency, ESA said, “No, I'm going to let the suspension stand.”

And then the petitioner here as head of Rent Stabilization, fired the two people, ordered them separated from the Government.

They took an appeal again to the head of the Economic Stabilization Administration and he reversed and the people were put back to work.

Now, if this man were the head of an independent agency, he would have the firing power, not his superior, he was answerable to.

Now, as we have discuss the question of this man's duty, of the petitioner's duty as the head of this agency.

What was it?

To determine whether these people should or should not in the first instance be suspended, but that was appealable to the head of the economic stabilization agency.

Then it was his duty to determine whether they should be fired, but that was appealable?

Justice Tom C. Clark: They were in the other civil service --

Mr. Byron N. Scott: Neither of the two employees who are here as respondents have gotten preference or it would not have gone to the Civil Service Commission and could have gone there only on the question of a violation of regulations or whether it was an abusive discretion to fire.

They took and necessarily so, because it's necessary to exhaust the administrative remedies, they took the route of appeal to the ESA director on the firing and won and were reinstated.

Therefore, it would not go to the Civil Service Commission.

But what did he -- what was his duty?

Chief Justice Earl Warren: You say these people were reinstated?

Mr. Byron N. Scott: They were reinstated.

Justice Tom C. Clark: Now, were they entitled to hearing or not?

Mr. Byron N. Scott: Entitled to a hearing --

Justice Hugo L. Black: These people that were --

Mr. Byron N. Scott: They had a hearing on the suspension before a board appointed by the Director of the ESA at the -- when they were fired and they appealed, the Director of the ESA did not ask for a hearing.

He just reversed.

But they had to have their hearing in the suspension case.

This man's duty, what was it?

To suspend, certainly.

I wouldn't deny it for a moment the right of the head, of the -- and acting head of the officer of Rent Control to order a suspension of an employee, or to fire subject to appeal.

But that's all he needed to do.

If he thought it would be necessary because of some speeches that has been made on the floor of the Senate to issue a press release, he could have said, “I have today had it been true suspended two people,” the respondents.

It wasn't necessary for him to go into a discussion, created in his moment of panic, because somebody had criticized him on the Floor of the Senate.

It wasn't necessary to describe his reasoning and his thinking.

It might have been for him to tell his superior why.

And there is where we run in to these cases of absolute immunity of a government official doing his duty and being protected in it.

It's part of the Howard case.

I wouldn't be here today if the petitioner in this case had sent a report to the Director of the Economic Stabilization Administration saying, “I am going to suspend these people for these reasons.”

Justice Charles E. Whittaker: May then I ask you one thing -- one further step.

Supposing the Director of Economic Stabilization had gone on to do precisely what petitioner did which would you then be here?

Mr. Byron N. Scott: Yes, but the parties would be different.

It would be the Economic Stabilization Administrator here, I think, as petitioner rather than the Deputy Director of Office Rental.

Justice Charles E. Whittaker: Then may you, sir.

Is it a -- is this a matter of absolute or qualified privilege one of rank or one -- or a matter of duty?

Mr. Byron N. Scott: I think that under the decided cases and the way the law exists before this Court acts, it's a matter of rank.

Justice Charles E. Whittaker: Now, why?

Mr. Byron N. Scott: Yes, Your Honor.

And I say that because of the Glass versus Ickes case which was decided by the Court of Appeals from the District of Columbia, certiorari denied.

In that case, any individual was representing himself to various people in connection with the Connally Hot Oil Bill.

What he was doing and the fact they're a little too involved, I think, for me to try to elucidate here, but he was more or less seeking clients before the Department of Interior and he had been disbarred from practice before the Interior Department by the Secretary of Interior.

Justice Charles E. Whittaker: Not disbarred, that he was simply barred by reasonable of the fact that he's an employee of the department within two years.

Mr. Byron N. Scott: Debarred.

Justice Charles E. Whittaker: Debarred, yes.

Mr. Byron N. Scott: And that action had been taken by the secretary, debarred him.

And the secretary told everybody through a press release, “You had better not have business with this man because he cannot represent you here.”

Simply stated.

That was a press release.

That was notifying all of the public.

It was not to an interested party.

It was not a defamatory piece of information to somebody who had an interest in receiving it, even though the people -- among the people who received it were those who had an interest.

In the case of Spalding versus Vilas, a distinction between Glass versus Ickes, there, it was sent only to people interested.

Here, it was broadly cited to the entire public by a press release to inform because the secretary didn't know how many people or who they were that this man was trying to represent.

Justice Charles E. Whittaker: Now, as I understand the distinctions you made there has to do only with the extent of the publication, but do you contend that in the Ickes's case, the secretary was exonerated simply because he was secretary that is on rank or because he was performing a duty incident results?

Mr. Byron N. Scott: As I read the decision of that court I think it was on rank and that he had a duty as the political appointee, as the head of the agency.

It was his duty to explain why.

The Court of Appeals in the Barr case made the distinction and said, “It wasn't this man's duty to explain the whys.

It might have been, although they say we do reach the question -- it might have been the duty of the Economic Stabilization Administrator to explain the why of this case.”

Justice Felix Frankfurter: Mr. Scott, you're -- the Ickes case shed some light on our problem because Mr. Ickes was a true guy.

He was not only a cabinet member, but he was an administrator of this and a chairman of that, not by virtue of his cabinet position but because he was so appointed to those states.

So you might -- if you restricted the cabinet members -- you might have Mr. Ickes immunized when he spoke as secretary of the Interior but not when spoke as oil administrator, is that right?

That might be.

Mr. Byron N. Scott: It might possibly although I don't know -- I have no time when he focused on administrator.

He spoke this time as Secretary of the Interior and --

Justice Felix Frankfurter: Why did he --

Mr. Byron N. Scott: -- Mr. Justice Vinson in writing the opinion said that it was as a cabinet officer.

Justice Felix Frankfurter: You already spoke vividly in what ever he spoke, didn't he?

Mr. Byron N. Scott: I so recall.

I want to get back a moment to the other exceptions that have been carved out of this room that a man is entitled to protection of his good reputation.

The principal one and it seems to me, the one that the Government has relied upon most carefully is the one where you make the report to somebody who can do something about it.

Now, there are cases where the subordinate officer tells his superior he has to.

The law requires it and his superior acts.

He has absolute immunity, but that some -- telling it to somebody who can do something about it.

Justice Charles E. Whittaker: Now --

Mr. Byron N. Scott: When --

Justice Charles E. Whittaker: -- is -- is why is that?

Is that because of rank or because it is a duty of this official to report up.

Mr. Byron N. Scott: It's the duty of the official to report up.

Justice Charles E. Whittaker: Yes.

Mr. Byron N. Scott: Now, how high do you have to go before Glass versus Ickes would apply on the decided cases?

Spalding versus Vilas does not require a granting of absolutely immunity to anybody for issuing a defamatory press release.

That wasn't a press release and the Court --

Justice Felix Frankfurter: They didn't have press release in those days.

Vilas goes back to Cleveland status, they didn't have press releases.

That was an innocent society.

Mr. Byron N. Scott: I don't go back to Cleveland's time --

Justice Felix Frankfurter: That was Vilas.

Mr. Byron N. Scott: -- and I don't know anybody ever issued a press release at that time or not.

But it was not a public statement.

Yet, the brief for the Government contends that it is the basis.

It is the authority for immunity for public statements.

The other able-to-do report to somebody who can do something about it, that's the case Cooper versus O'Connor where in the enforcement of law going to grand juries, testimony before grand juries and the immunity there, they're reporting to officials who can take action.

Why was it necessary for this head of this agency to broadcast this story to the people of why he was firing these two employees?

The people that read it couldn't do anything about it.

It has been done.

And second, distinguish again from Glass versus Ickes.

There wasn't anybody out in the country that was doing any business with these two people.

They were subordinate officials in the Housing Administration.

They were suspended.

They were out.

There wasn't any chance that somebody would walk in to the office and talk to them so that the head of the agency should warn all people against it.

Justice Charles E. Whittaker: Now, somebody had to make an explanation, however, to Senator Williams and the others who complained about this conduct in the Senate.

Who would be -- have been there?

Mr. Byron N. Scott: I wouldn't have had the head of the agency do it, either the head of the agency or in his absence the petitioner here or a letter was prepared for him and it was signed by his secretary and sent it to Senator Williams.

There is where it ends.

It should have been there whatever Senator Williams did with it would have been no part of this case.

But where you have been asked for information, yes, Your Honor.

It was his duty to supply it.

It was quickly all right for this man, as far as I'm concerned holding the whole press releases.

But now you don't, in entering Senator Williams for the questions he has asked or the remarks he's made, go to the public and defame two of your former employees.

There was no responsibility, no duty on him to do that.

Now, one more and the next exception to this general rule that if somebody defames me, I may have regrets, is asked for by the Government here.

And it is asked for, it seems to me on this basis.

The public has a right to know.Public has the right to know the truth.

And they want us -- they want this Court to carve out another field, another exception to the general rule and say that when any government official is performing and informers act -- no, that's not their word.

When they are performing an informing function, when they are telling people falsely about what they think is going on in the Government, make that exception to the rule.

If and it's a case where no law requires it, no constitutional provision requires it, no decided cases to date requires it.

They're asking the Court, as a matter of policy, so that the public may know, to give to employees at least like this petitioner absolute immunity.

They refer to Congress saying that the people have a right to know, in the newspapers saying that the people have a right to know --

Justice Charles E. Whittaker: I --

Mr. Byron N. Scott: -- certainly.

Justice Charles E. Whittaker: I hesitate to interrupt you again, but suppose that this petitioner had written only to some (Inaudible) the very matter contained in the complaint of press release is libelous.

The only distinction between my assumption and what was done would be the extent of the publication, wouldn't it?

Mr. Byron N. Scott: Yes, Your Honor.

Justice Charles E. Whittaker: Now, would the letter have been absolutely privileged in your judgment?

Mr. Byron N. Scott: I think not, sir.

I think not.

Justice Charles E. Whittaker: Now, if it had been written by his superior, the Director of --

Mr. Byron N. Scott: Economic Stabilization Administration.

Justice Charles E. Whittaker: Economic Stabilization Administration, do you say that it would still not have been?

Mr. Byron N. Scott: Under the -- the decided cases, it would not have been.

Justice Charles E. Whittaker: Now, the latter was appointed by the President of United States.

Mr. Byron N. Scott: ESA Director -- was.

Justice Charles E. Whittaker: Now, if it had been done by the President of United States, would he have immunity?

Mr. Byron N. Scott: Yes.

Justice Charles E. Whittaker: And why?

Mr. Byron N. Scott: Because he's the Chief Executive.

As far as I know and as I have said a moment ago, a terminal case that would establish that other than dicta that the President of the United States would not be as the -- the head of the executive department, the division (Inaudible) the system of checks and balances, I think they put it on would not be amendable to that court action.

Justice Charles E. Whittaker: I noticed that Judge Danaher addressed in his dissent in the first case, the department is, that the -- the executive power had been delegated down to the Secretary of Economic Stabilization to this petitioner.

Do you think there's anything in that?

Mr. Byron N. Scott: The Director of the Economic Stabilization Administrator did not receive all of these powers and transfer all of these powers without reserving any to his Director of the Office Rent Stabilization.

The outline of his powers was stated in appellant's brief at the first hearing of the case where they said he was able -- the petitioner -- he was able within the limits of statutes, directives from his superior and outstanding governmental policies to determine fully the policy of ORS as to rent control matters.

All of his -- all of the authority given to the Economic Stabilization Administrator by the President was not transferred by that administrator to the head of this Office of Rent Stabilization.

For example, he didn't even have the authority that the office -- that the administrator of the Economic Stabilization Administrator had to fire his employees.

He couldn't fire him and make him stick -- make it stick.

He had -- they had the right to appeal to the administrator.

And within directives issued by ESA down or by policies adopted by the President, ESA administrator, he followed those policies.

No, Your Honor, I think Judge Danaher was wrong in argument before on this question of how do you compare, how do you determine whether they are on cabinet level or not, we have engaged in a -- a discussion of numbers.

There are more employees in this agency than there are, for example, in Labor Department.

Therefore, this man should have it, if this man has that immunity which is an unrealistic attempt to determine whether to give to the man, who is the servant of the people, the right to defend those people, so that he can act fearlessly.

This man could have acted fearlessly, faithfully without any trouble at all by just announcing that he had suspended these two men or this man and this woman.

Or he could have acted faithfully and fearlessly if he had told his superior, “I have suspended them for these reasons.”

That's all he had to do.

And anything further, no public interest necessitates the granting of immunity to a person to do that from a malicious motive.

Chief Justice Earl Warren: Mr. Friedman.

Rebuttal of Daniel M. Friedman

Mr. Daniel M. Friedman: Mr. Justice, and may it please the Court.

In considering the policy issue here, my opponent has suggested that no public official has any need maliciously to defame citizens.

Well, of course, nobody is suggesting that it's necessary to give the public official the right to defame citizens in order that he may do his duties fearlessly.

But we are contending if that in order to his duty fearlessly, it is necessary that he have the right to take such steps as he deems proper without fear that in some particular case he may be challenged.

I think the policy -- the basic theory of the policy is that you don't look to the particular case.

It's a broad policy.

You try to protect the interest of the people as a whole and having their government officials carry on their functions as they deem necessary for their important offices to make the fullest amount of information available to the people and because in a particular case, it is alleged that a particular official in carrying out his acts, acted maliciously, acted out of base motives.

That is no reason to destroy the privilege and to say that the Court in this particular case, the action is improper, therefore, we're going to say that all government officials in this situation must stand up at some future date before a jury and attempt to prove their good faith.

Now, three things that I'd like to answer, specifically, that Mr. Scott suggested with respect to the power of Mr. Barr as the head of this agency, the fact he conceded that Mr. Barr had the power to suspend and fire his employees.

In fact, that the employees had the right of appeal to a higher agency, it seems to me, does not mean that he cannot be deemed to have the control over these agencies which establishes him as the head of an important agency.

We also like to answer the question which Mr. Justice Whittaker asked.

We disagree, most emphatically, with Mr. Scott that the test is rank.

We think that's an artificial test.

We think it has to be the function which the official performs because depending on a particular area of Government involved, in one case, a cabinet officer maybe performing certain functions, in another situation, a man of a lower rank may be performing just as important functions.

And the way the executive departments of the Government are operating today, it's pretty clear that the cabinet officer himself cannot hope to perform all of the important policy functions in Government.

We think it would be unrealistic to draw the line of the level of the cabinet officer and say, “That's as far as it goes, that in effect we'll be saying that only cabinet officers are performing so important functions as to require that they be given this immunity.”

Justice Potter Stewart: Mr. Friedman, if the test is not ranked that -- what is the test, job content or job responsibility or --

Mr. Daniel M. Friedman: Take basically the -- the kind of function this man is performing.

Is he in a position of official responsibility that he has responsibility for carrying out a particular program and therefore that the public interest requires that he be given this kind of privilege?

Justice Potter Stewart: And that responsibility is certainly not in terms of the number of people subordinate to him.

Mr. Daniel M. Friedman: No.

Justice Potter Stewart: You don't mean that.

You mean responsibility in that he is a policy making official?

Mr. Daniel M. Friedman: That is correct.

Justice Potter Stewart: That he has discretion?

Mr. Daniel M. Friedman: He has discretion.

He -- he does not have to look at every turn to his superiors to decide what to do.

He -- he is the man who is actually making the decisions, the important policy decision.

Justice Potter Stewart: So it's on that basis that you would contend that he should have it -- this petitioner should have absolute immunity.

Mr. Daniel M. Friedman: That is correct.

Justice Potter Stewart: And in the succeeding case as I understand it, it's going to be the position of counsel for the petitioner that for the exact opposite reason that he has no discretion, he should have absolute immunity, is that correct?

For getting pressed, for being premature.

But I -- I just wonder.

You're not just going to cover the waterfront in these two cases.

Mr. Daniel M. Friedman: No, I think -- I think there's a difference, Mr. Justice.

I think where the man has an affirmative obligation, then I think he'd entitled to the privilege no matter what his rank.

In other words, if he has choice but to do this, then I think he is entitled to the privilege.

When he's at the policy-making level and it's a matter of discretion, then I think as long as he is at that certain function, he's entitled to -- which I shall argue in the next case in a moment.

In that situation, the petitioner in our next case is we don't think had the same kind of discretion.

He was under an affirmative obligation to carry out, to do what he did.

Thank you, Your Honor.