HOWARD v. LYONS

Mr. Paul A. Sweeney: This case is here on writ of certiorari to the United States Court of Appeals for the First Circuit, draws out of an action for libel brought by two civilian employees of the Boston Navy Yard against Admiral Howard, the commander of that yard.

The alleged ground of libel, the report issued by Admiral Howard and transmitted to his superior, copies of which he also furnished the members of the Massachusetts Delegation.

The District Court entered judgment for the petitioner on the ground that the pleadings and affidavits conclusively established the statements attributed to petitioner were published by him on the discharge of his official duties and in relations to matters committed to him for determination.

On appeal, the Court of Appeals affirmed on the part as to the communication to his superiors but held that the communication to the -- or the publication to the members of the Congressional Delegation of Massachusetts was at the best qualifiedly privileged and remanded the case before the proceedings in accordance with its opinion.

This Court has now granted certiorari.

The facts in this case are relatively simple.

And they are comprised the pleadings and two affidavits filed in support of a motion for summary judgment.

The respondents here, the plaintiffs in the District Court, Lyons and McAteer, were civilian employees of the Boston Navy Yard.

They were also officers of an organization known as the Federal Employees Veterans Association with purpose was to bring together an association of veterans employed by the Federal Government to protect all veterans' rights which are conferred by various laws and regulations, and also to seek to better the affairs and the rights of veterans employed by the Federal Government.

Now, the Navy has an industrial relations policy which applies particularly on navy yards in which there's an encouragement of representative groups forming and dealing with the -- the management of the stations.

I believe in Massachusetts at the Boston Navy Yard, there were probably 30 some odd organizations represented.

They would represent labor unions, veteran's organizations and different groups who are in a position to speak for and represent the employees.

In 1949, the FEVA, this Federal Employees Veterans Association, was recognized as a bargaining unit.

It originated in this post number 1, was an association of the employees at the Boston Navy Yard.

That recognition continued for a number of years, but there's no question but that the FEVA was extremely militant in undertaking to protect the rights of its members.

It represented them at grievance hearings.

It was instrumental in certain litigation, some of which was successful and bettered the rights of the members of the association.

The FEVA also put out a week -- a monthly newsletter, which was distributed among its members which were given to members of the Congressional Delegation of Massachusetts and released to the press.

Over a period of time, these newsletters yet, became extremely critical of management, the Navy Yard management.

They went further.

They criticized the policy of the Navy Department as such, the executive department as such.

It appeared about the beginning of 1955, that certain complaints they had made at the Massachusetts Delegation resulted in an investigation as to the personnel policies and other matters being pursued at the Boston Navy Yard.

At the conclusion of that, the investigation, it was decided and determined that no violations had occurred.

Shortly thereafter, the petitioner here, Admiral Howard became Commandant of the station and he immediately began to encounter difficulties with the representatives of FEVA.

Now, these matters are set forth in this report which was sent to the Bureau of Ships and the Bureau of Industrial Relations.

And he comments in that, that the -- that with all other organizations they found them were beneficial and helpful, that the tendency of this organization was to magnify trivialities, to belittle management and you could only conclude that their whole purpose was to attack managements, to complain, to keep things in the turmoil.

And as they characterized it, the thing was openly subversive as to the management of the station.

I think that the words which are relied upon as probably being potentially libelous in this, but if they are obviously referred to management.

They also said that it was bad on the morale, both of the management itself and of other employees.

As a result thereof, he decided to withdraw recognition of this union as a bargaining unit.

As I said before, copies of this report were sent to the -- through the Commandant of the First Naval District to the Bureau of Ships and Bureau of Industrial Relation of the Navy Department.

He also sent copies of the report to all members of the Massachusetts Congressional Delegation.

The Commandant of the First Naval District, Admiral Schnackenberg, through the Public Information Office of that district, released copies of this to the press.

This occurred on September 9, 1955.

A year later, presumably, just before the local statute of limitations in this suit was instituted.

Now, it may have the usual allegations of libel that it was malicious, false, for the purpose of -- that the defendant there, petitioner here, departed entirely from his duty and unusually used it as a subterfuge for the purpose of maintaining this malicious attack upon the two plaintiffs who are officers of the FEVA, one of whom was identified by name in the report, and the other by description.

An answer was filed in which it was sort of one count of the answer and denial in the manner in form because, while this report was attached to the complaint it did not have the exhibit, so that went with this.

Also, as a defense, it was alleged that the statements were true, that they were in the performance of his duty.

And finally, there was a complaint that they were absolutely privileged because they were matters upon which he acted in the performance of his duty.

Before any evidence was taken, a motion for a summary judgment was filed, and two affidavits were submitted in support thereof.

One affidavit by Admiral Schnackenberg, the Commandant of the First Naval District, recited that he was Admiral Howard's superior.

And on the date this was issued to Admiral Howard was in the exercise of his functions and duties as Commander of the Boston Navy Yard.

That among his duties was to notify the Bureau of Ships and the Office of Industrial Relations of the Navy Department of any significant changes and personnel policy that took place.

And that this was the title, a report which should be made.

He also stated that one of Admiral Howard's duties was to keep the Boston -- the Massachusetts Congressional Delegation advised of any significant personnel changes such as this.

He said that the release to the press had been effectuated by his office.

Admiral Howard also submitted an affidavit in which he said that he had performed these acts in accordance with his duties, that his first duty was to make these reports or a report of any significant personation of chain such as this was to the Bureau of Ships and the Bureau of Industrial Relations.

And that it was also one of his duties to send copies of that to the Massachusetts Delegation.

He denied that he had made any release to the newspaper.

This affidavit was uncontroverted, and as I noted before in my statement that the District Court made a finding that the pleadings in the affidavits showed conclusively that the statements attributed to Admiral Howard were published by him in the discharge of his official duties and in relations committed to him for determination.

It -- and the judgment for the defendant, dismissed the complaint.

On appeal --

Chief Justice Earl Warren: Well, Mr. Sweeney, was that a finding that he did not give it to the press?

I understood you to -- to say that.

Mr. Paul A. Sweeney: I don't think he dealt with the question as to whether that it was given to the press because he would have held, I think, that they had Admiral Howard giving it to the press.

It probably would have been in relation to his duties because Admiral Schnackenberg did testify that it was part of Admiral Howard's duties to give these to the press.

However, the undisputed evidence, both from Admiral Schnackenberg and Admiral Howard is that the release was by Admiral Schnackenberg and by not Admiral Howard.

Chief Justice Earl Warren: Both to the press and to the Congress?

Mr. Paul A. Sweeney: No.

I admittedly, Admiral Howard published, sent these letters to the congressional delegation.

There's no question about that.

Chief Justice Earl Warren: And -- and admittedly, he did not put out the -- the press publication?

Mr. Paul A. Sweeney: Well, that it's uncontroverted.

There's only two statements are --

Chief Justice Earl Warren: Yes.

Mr. Paul A. Sweeney: -- one by the man that said, “I did it,” and the other by Admiral Howard who said, “I didn't do it,” and there's no evidence to the contrary.

The District Court did not bother to make that finding.

The Court of Appeals did discuss it some.

Now, the Court of Appeals stated that there were three publications alleged in the light of the complaint.

First, the publication of sending the report to its superior officers, the Court of Appeals stated that on the basis of the overwhelming rate of precedence and authorities that that was an absolutely privileged communication and that they would not look behind that for any element of malice.

As far as the release to the press was concerned, they stated that that apparently had been abandoned on appeal, which I think was correct.

However, they went beyond that and said, “Even if that had not been abandoned, the evidence here clearly shows that if there had been any -- the publication rather had been by Admiral Schnackenberg.

And that while Admiral Howard may have known that when he put this in channels, it would go through Admiral Schnackenberg's office and be released.

Nevertheless, that was an action over which he had no control with the release of that matter was one of which provided for by Navy regulations that Admiral Howard was under a duty to make this report.

And when he made it and put it in channels, he was not responsible and could not be held for a publication even though he might have anticipated that would be what would happen when he put it in channels.

On the question of release to the publications to the Congressmen, I'm a little bit unable to follow the theory of the Court except that they said that they did not believe that the doctrine of absolute liability should be expanded.

They did not dispute the evidence that this was an action performed by Admiral Howard in the carrying out of his duty.

It was a duty imposed upon him by -- I assume, by regulations and by orders of his superiors.

Justice Charles E. Whittaker: That is not quite correct, sir.

Does not the affidavit obviously relies (Inaudible) there's a separate hearing (Inaudible)

Mr. Paul A. Sweeney: Well, I think there are two affidavits if Your --

Justice Charles E. Whittaker: I'm thinking of the one in relation to the company that was sent to members of Congress (Inaudible)

Mr. Paul A. Sweeney: Just a minute, if Your Honor please.

The -- I'm -- I'm reading now if Your Honor please, on the affidavit of Admiral Schnackenberg, Admiral Howard's immediate superior.

It's on page 21 of the record.

“Included among where Admiral Howard's official duties as Commander of Boston Navy Shipyard, is and was on September 8, 1955, the furnishing of copies to the Massachusetts Congressional Delegation of his official notification of the Bureau of Ships of personnel action taken by him as Commander of Boston Naval Shipyard.”

Now, that was Admiral Howard's superior and he said that was one of Admiral Howard's official duties, to furnish this.

I think here's an affidavit is much more significant than would be Admiral Howard's affidavit, which might sometimes be regarded as self-serving.

Admiral Schnackenberg was the man in immediate charge of Admiral Howard and undoubtedly knew what his duties were.

Now, it is not disputed by the Court of Appeals, by anyone else, that this was not part of his official duties.

Had there been any doubt on this question, undoubtedly, they would have remanded the case for further evidence or for a more specific finding on that question.

It was accepted in the case that this was one of his duties imposed upon Admiral Howard by the Navy Department.

Justice Charles E. Whittaker: (Inaudible) towards this was -- this (Inaudible)

Are you referring to the copies that went to the Massachusetts Delegation?

Mr. Paul A. Sweeney: Delegation, yes, Your Honor, because that's the only thing -- that's the only point on which the court below held that there was not absolute privilege.

They held at the best that was a qualified privilege.

Justice Charles E. Whittaker: The defendant who was here as I understand you now, he was sending those copies by Admiral Howard through the Massachusetts Delegation was under the disposal of duty.

Mr. Paul A. Sweeney: Yes, Your Honor.

Justice Charles E. Whittaker: (Inaudible) to be.

Mr. Paul A. Sweeney: I -- I have never heard it disputed.

It was not disputed in the court below and I would make this observation, if I might, Your Honor.

Had the court entertained any doubt about that point, that it was not one of his official duties, undoubtedly, they would have remanded it for further evidence on that -- that point because this was up on a motion for summary judgment which had been granted.

And if there had been some doubt, they would have discussed that point in their opinion.

They accepted it.

It's also accepted in -- that a -- that -- the pattern in the case it seems to me indicates that the court below rather definitely accepted these findings.

Now, if Your Honors please, I would like briefly to advert to the -- in a defamation action, what elements to argue, considered simply, can now the ground here.

In the defamation action between private parties, truth is a defense, but if the falsity has been established, malice is presumed.

And so, the burden is upon the defendant in a case where if he has not been able to establish the truth of these defamatory statements, also, to bear an over, almost overwhelming burden to offset malice.

In qualified privilege, again, truth is normally a defense, but the burden shifts and is necessary in the place of qualified privilege for the plaintiff to establish malice either by extrinsic evidence or by evidence, intrinsically, that the statement is so far so recklessly made with malice, may be drawn by the jury.

Both the -- the question of malice and both these instances are questions from the jury.

In a situation of absolute privilege, the only question that's for examination by the Court is whether the person is an official and has acted in the course of his duties or a matter as this Court has stated in Spalding versus Vilas that has more or less relation to those duties.

Now, absolute privilege, as far as the Government is concerned, exists in three fields.

In the legislative field, it exists by reason of a constitutional provision.

In the judicial field and then the executive field, I think that the cases are sufficiently old that you would call them a -- a common law almost in that state, because as far as the judiciary is concerned, they date back to the days of Lord Cook.

It has also been extended by the judiciary -- by a judicial decision to the executive departments.

Now, the reasoning at the back of this is, not that anybody should protect a “be known” person, a malicious person or anything of that character, but that because of the -- a position that people have.

The decisions they have to make, that they should be able to make those decisions, to utter those statements and to do the things that are necessary to carry out their duty, without feeling that they can be called to an account by any private individual who feels that they have been outraged or hurt or who alleges that they have by these actions.

That it's been remarked in the field of judicial and of the immunity of the judiciary, that cases are so bitterly contested that the losing person usually believes that the only way the decision against him can be explained is because of corruption on the part of the judge.

At least in a lot of cases, so that they were open to them, they would consistently bring suit against judges in the lower courts.

Now, in the judicial field, the absolute immunity, the extent is not only their actions, of judges in their judicial capacity, but as this Court held in Bradley versus Fisher, that it's necessary that they had -- have -- that it was necessary for them to have the jurisdiction to perform the particular act that they did, but only that they have jurisdiction, generally, in that field.

It extends to petty and grand jurors.

It extends to statements made by counsel before in a judicial proceeding and also the testimonies of witnesses.

There's a complete immunity in all judicial proceedings.

Now, this Court has only passed on three occasions upon the absolute immunity insofar as the executive branch is concerned.

The leading case, of course, is Spalding versus Vilas, a case in which Mr. Justice Harlan spoke for the unanimous court in 1895.

That case involved a -- an action against the Postmaster General for a -- for effect -- would in effect be defamation.

He had sent out certain letters which they claimed had bad effect.

And then this Court reviewed all the judicial -- all the decisions involving the absolute immunity of the judiciary.

That drew from them what was considered by it, to be the underlying principle, and that is, that public interest was the controlling -- the matter of here.

And that public officials, as well as the judiciary had to be able to act freely without feeling that they would have to be called for it to account on suits by private individuals for their acts.

That, not only, of course, it's been pointed out in many of these decisions, that other matters are open for this discipline.

Presumably, a Cabinet officer that transcends his functions, it's something that was corrupt or evil could be removed by the President, could be impeached.

Lesser officials, of course, they're even more subject.

They're subject to the definite discipline of the Department.

Now, the test of these cases as the cases have evolved, and that there are a very large number of them in the lower district courts.

The Courts of Appeals and then the District Courts themselves, are that -- it must -- it's a not -- that it's -- it's either in the course of the performance of their duties or for an officer to have discretion either to act or not to act where it has more or less relation to their duties.

It must not be an act that's imposed on him by law.

It's enough that it's an act that he can exercise by his discretion.

Now, as Your Honors, we'll proceed in this case as much an hour because here, the duty of sending these reports to members of Congress was placed upon Admiral Howard by the Navy Department.

Now, I would just like to advert to one fact here in our -- I just checked our index.

In 10 of these cases involving absolute immunity, certiorari has been denied.

I know that there at least 10 or 15 more of them where it's been denied.

I know that that ordinarily does not indicate a feeling on the part of this Court, but I do submit that this case as you can steadily have been counting that this Court since the decision in Spalding versus Vilas, and that the decisions have been uniformly denied with one exception.

And that was the case of -- that came up, Yaselli versus Goff came up from the Second Circuit, it involved an action for malicious prosecution against the Special Assistant to the Attorney General.

These are very acts in opinion by the Second Circuit in 12 F.2d.

It was affirmed by this Court in a per curiam opinion in which they relied upon only two cases that was Bradley versus Fisher and Alzua versus Johnson, both cases hearing the immunity of the judicial.

The other thing assigned in this case as a matter of support in this Court was the Court's recent decision in the last term, in Barr versus Matteo, where this Court vacated a decision of the Court of Appeals for the District of Columbia Circuit and sent the matter back for a decision as the Court could do so on the question of qualified privilege.

In that case, however, there had been a complete record made.

Justice John M. Harlan: Would you mind giving me the name of that Second Circuit decision?

Mr. Paul A. Sweeney: Yaselli.

Y-E --

Justice John M. Harlan: Yes.

Thank you.

Mr. Paul A. Sweeney: -- S-E-L-L-I versus Goff --

Justice John M. Harlan: (Inaudible)

Mr. Paul A. Sweeney: -- 12 F.2d 396.

They also, if Your Honor please, had drew very largely upon the learning to be acquired from the cases involving immunity of the judicial department.

Now, ordinarily, qualified privilege does not give to the official the type of protection that would be needed if he has to perform his duties fearlessly.

In the first place, presumably in a lot of these instances, you will have overstated these facts, there may be a misstatement.

As I said, normally, truth is a defense.

I think there's one --

Justice Charles E. Whittaker: (Inaudible)

Mr. Paul A. Sweeney: Pardon?

Justice Charles E. Whittaker: You said normally, truth is a defense?

Mr. Paul A. Sweeney: Yes, Your Honor.

Justice Charles E. Whittaker: (Inaudible) no exceptions?

Mr. Paul A. Sweeney: Well, there's --

Justice Charles E. Whittaker: But suppose they have --

Mr. Paul A. Sweeney: Well, I --

Justice Charles E. Whittaker: (Inaudible)

Mr. Paul A. Sweeney: There's a statute in Massachusetts that if you have malice, truth is no defense.

Justice Charles E. Whittaker: Well, maybe in some States (Inaudible)

Mr. Paul A. Sweeney: There were in some States peculiarities but -- that's why I say normally and there's also certain other States which have something very similar to this which constitutes an invasion of the privacy.

And if you run into one of those things, they've are supposedly assimilated the defamation that I use the term “normally” to take care of those situations.

It's not a universal rule, but it -- it does normally apply.

Justice William O. Douglas: Your -- in speaking of civil -- civil suits for libel and not criminal?

Mr. Paul A. Sweeney: Civil suits for libel.

I think a number of these things -- I hadn't looked into that field, if Your Honor please, to any great extent.

I know there are States that make it criminal to invade somebody's privacy.

In other words, the result may also be a civil relief but they're -- they're also made criminal.

I did notice one thing and that is in France, any body that disturbs a person's privacy after 10 years, it's a criminal offense there.

10 years is supposed to be the statute limitations on a person's reputation.

I don't know of any community in this country that has that particular law.

Justice Hugo L. Black: Do you think that this defense is a good defense under the laws of Massachusetts?

Mr. Paul A. Sweeney: Yes.

I would think so, Your Honor, because I've noticed --

Justice Hugo L. Black: Are you defending on the law of Massachusetts?

Mr. Paul A. Sweeney: No, I think this is definitely, should be a federal question, if Your Honor please.

Justice Hugo L. Black: You're arguing it all together on that basis.

Mr. Paul A. Sweeney: I did, Your Honor, but I know -- as the court below could find nothing in Massachusetts' law to show that it's any different from laws of other States.

Justice Hugo L. Black: Why do you proceed it on the basis that you do not have to consider the fact that this was turned over to Howard?

Howard turned it over with knowledge and the regular routine has to be given to the paper that's the -- your adversaries -- the other position made.

Mr. Paul A. Sweeney: Well, I agree with the court below that the Navy Department has an involved system governing press releases.

Their policy basically is that the public should be informed involving matter that comes through them unless it involves security matters or there are some other specific reasons for not making it public.

They have instructions issued.

There's an information officer in every desk whose business it is to look over matters coming through, and if he thinks they're of interest to the public to release the matters.

This is a matter of Navy policy.

Now, Admiral Howard, if you honor the duty, to make this report, would have to send this report through their Commandant of the First Naval District and if it's Navy's policy to make these things public, there's nothing he could do to stop it.

The point is he had determined that he was -- as a change in personnel, he was withdrawing recognition from FEVA.

And that was a matter that he felt it was necessary for him to report to his superiors.

Admiral Schnackenberg took that same position.

Now, but when necessary for him to report that to his superiors, that maybe decided to intercept it along the way and make it public, there's nothing he could do about it.

He could not refuse to make the report.

That's the reasoning of the court below and I think that's the reasoning that applies to this case.

Chief Justice Earl Warren: Mr. Sweeney, would you be here if it was not his precise duty to release this to the Congress to the admiral duty to do that but hadn't done it?

Mr. Paul A. Sweeney: Now, I would have said that it had more or less relation to his duties.

Yes, Your Honor, I would still be here.

Chief Justice Earl Warren: You would have to be --

Mr. Paul A. Sweeney: There's two -- there's two things on this.

It's either, first, if it's his absolute duty, I do not think in those instances it's really (Voice Overlap) --

Chief Justice Earl Warren: But do --

Mr. Paul A. Sweeney: -- his actions.

Chief Justice Earl Warren: -- they have to -- let's just say a positive duty.

Mr. Paul A. Sweeney: A positive duty.

All right.

Chief Justice Earl Warren: Yes.

Mr. Paul A. Sweeney: That is in response and the directions of his superiors.

And then in fact it's his superiors' act when he does something --

Chief Justice Earl Warren: Yes.

Mr. Paul A. Sweeney: -- like that.

Chief Justice Earl Warren: Yes, I --

Mr. Paul A. Sweeney: Now --

Chief Justice Earl Warren: -- I follow you on.

Mr. Paul A. Sweeney: So that --

Chief Justice Earl Warren: Now, suppose it was not his duty and he just chose to -- chose to --

Mr. Paul A. Sweeney: Then, I think --

Chief Justice Earl Warren: -- a concern.

Mr. Paul A. Sweeney: -- I think it's a question you'd have to find out if that had more or less relation to his duty.

In other words, had there been enough dealings with the members of the Massachusetts Delegation to indicate that this was a desirable and good thing to do.

He might make an error of judgment, but nevertheless, if he thought that because of the relationship that existed between the Navy, the Navy Yard and the members of Congress, it was a desirable thing to do, that is, I would say that's something that falls within his discretion.

That would be my argument in that case.

In other words, this is the (Voice Overlap) --

Chief Justice Earl Warren: Whether he was given such discretion specifically or not.

Mr. Paul A. Sweeney: Yes.

It would be more or less of an incident to a person running a -- running a large naval installation in which I'm sure the Congressional Delegation of Massachusetts had a very great interest.

Chief Justice Earl Warren: Well, really?

Then you make no distinction between it being his duty in this case to send it to Congress and -- and on the other hand, his feeling that it might be helpful to do it.

Mr. Paul A. Sweeney: Oh, I do make a distinction, Your Honor.

I think the second is a case where you're -- it's possible to say there was an abuse of discretion on his acting pursuant to a positive order.

He had no discretion.

It was his duty to do it, and his act is the act of his superiors.

Chief Justice Earl Warren: Yes, I'm with that.

Mr. Paul A. Sweeney: And so that this case, to my mind, is a very simple case.

It does not offer some of these more difficult facets that I think would exist in other fields.

And now, there's just one thing that I would like to touch on.

That is a -- as I say the case law has extended this to officials of various types.

It does not depend upon the office they hold.

It depends upon the type of the duty they are performing that is one that's been placed upon them by law or by orders of their superiors or if they have a discretion to act in a certain field, that's the public policy as believed to be served by them exercising unfettered discretion in acting within the discretionary field that they have.

There's a -- a large number of cases and as I say, they've been consistently held that they're not reviewable by the Court.

Now, if I could come back --

Justice Potter Stewart: Mr. Sweeney --

Mr. Paul A. Sweeney: -- to what --

Justice Potter Stewart: I -- I want to be sure (Inaudible) the cases in this Court, all the Government officials are immune, absolutely immune, have to do with department heads, do they not?

Mr. Paul A. Sweeney: That's right, sir.

Justice Potter Stewart: (Inaudible) officers.

Mr. Paul A. Sweeney: Yes.

There's just the one case --

Justice Potter Stewart: Yes.

Mr. Paul A. Sweeney: -- Spalding versus Vilas.

Justice Potter Stewart: Right.

Mr. Paul A. Sweeney: And we've dealt with that.

Justice Potter Stewart: Well, how about the -- now, the (Inaudible) case was in the Court of Appeals.

Mr. Paul A. Sweeney: That was in Court of Appeals.

We rely a lot on those cases, if Your Honor.

And we always -- they are certiorari-denied cases.

(Inaudible) there's a number of those cases.

Justice Potter Stewart: Now, on those -- officials of that type, of course, have a great deal of policy making power and policy making duties, a very great deal of discretion, do they not?

Mr. Paul A. Sweeney: That's correct, sir.

Justice Potter Stewart: And isn't that the basis on which absolute immunity was placed by the courts?

Mr. Paul A. Sweeney: It depends upon the degree of discretion of what they're doing.

As I understand, if I could just deal with another phase of the --

Justice Potter Stewart: Well, just let me this so that you'll --

Mr. Paul A. Sweeney: Yes.

Justice Potter Stewart: -- get my thought.

Then I understood you that -- one of the Chief Justice's questions to the effect that what you're contending for was this -- was this man's absolute duty.

He didn't have any discretion to do this.

Mr. Paul A. Sweeney: Right.

Justice Potter Stewart: He had to obey his superior officer.

And therefore, you mustn't hold them because it's not his act, it's that of his superior officer.

Well, that's just the opposite kind of a situation, is it not, from an official who has a great deal --

Mr. Paul A. Sweeney: Yes.

Justice Potter Stewart: -- of discretion?

Mr. Paul A. Sweeney: Well, yes.

But ordinarily they only deal with the discretionary situation.

I don't know of any instance where it was a man's absolute duty to do something that has been before the Courts insofar as, certainly, not as far as this Court is concerned.

Ordinarily, any official that performs an act is either guilty of a trespass or may commit a tort upon a private individual.

If he were a private individual that would be actionable.

His defense, ordinarily, is that he is acting pursuant either to a valid law or valid regulation of his superior.

When he shows that, he normally is immune from any kind of a tort or a trespass action.

And that's one of the reasons you practically never find anything of this character because ordinarily, there's a number of cases that upheld, the Ainsworth -- De Arnaud versus Ainsworth is the next, in Lynn O'Connor case in the -- in the lower courts where they have held that because of the complexities of the modern departments, it's impossible for the head to exercise most of his duties.

He has to delegate them to his subordinates.

But the acts of his subordinates are usually the acts of the Department.

Now, that basically is the reasoning which deals with the problem that you raised, Mr. Justice Stewart that there has been restricted in this Court or the only case they have dealt with was the head of the department.

I would assume that an ordinary assistant secretary has more people under him and more duties now than the head of the department had in 1895.

There's been that much increase in the complexity of Government operations.

And I think the reason in back of it is the thing that should be of interest.

And, that is, that you look not at the titular job that the person holds but the duties that they are intended to perform.

And I think that that is the point at which the decision should be made as to whether there should be absolute immunity or not.

Now, of course, again on the question of defamation, we all know that anybody that publishes it or transmits it is liable.

For example, when a man has a publicity agent, public, whether he release these things through, that man is also guilty of publishing but no one ever treat that as anything except the acts of the head of the department and the person that directed him to.

Even a newsboy that carries and sells newspaper that contains a libelous article is technically guilty of a publication.

No one bothers with that.

You usually look at the responsible person.

But there's a lot of technicalities in this field that I think that can be over exaggerated.

I would like to express the fact that at least as far as the field of absolute privilege is concerned, we think it should be examined -- it should be dealt with as a matter of federal law.

It has to do with what as a matter of federal interest and the desire is the balancing of two equities.

The right of a private individual to be secure in their reputation, that's as far as the defamation case is concerned, but to this, of course, would extend to the malicious prosecution cases, false imprisonment.

There's a great number of those in the books as an addition to this particular form.

And that the relationship, that balance that should be made as far as federal officials is concerned, as far as the federal judiciary is concerned, is a matter that should be decided on the basis of federal law and not from the varying concepts of 48 different States.

The second thing is, especially in anything that has to do with defamation, it should have a uniform rule because a press release from Washington will be published perhaps in all 48 States of the Union.

And, of course, you may maintain a suit for defamation any place that it's published.

So, you would get divergent views and divergent results.

And I would like to call attention to one fact that I think is quite disturbing.

I would see no reason or any basis on which you can distinguish, that is on the basic reasons.

The degree of it might be entirely different between the immunity of the judiciary and the immunity of the executive.

It's all based on a basis of public policy.

Now, if you applied state law to the executive branch, I would think by the same sign and token, you would have to apply state law to the judiciary.

And yet there's a decision by the Supreme Court -- the Court of Appeals of New York which is then cited in the opinion below where they held that the judge can send a copy of his opinion to West Publishing Company under the New York Law Journal that transcended the duties of his office and he was guilty of publication of that and it could be held in an action, at least it was not ordinarily demurrable.

Now, I don't think that it would be a very good idea to have the federal judiciary subjected to suits for defamation if there happened to be some statement in one of the opinion and it was a frivolous argument put in by an attorney and that it would have been published in the New York Law Journal.

And that would be -- that -- I'm giving that as a concrete example of what could happen.

In other words, I think in the field of absolute immunity, it should be definitely governed by federal law and whether -- whether different considerations apply to qualified privilege, we do not need to consider because this case is here only on the question of absolute immunity.

Chief Justice Earl Warren: Mr. Sweeney, I understood you to say that the -- the foundation for -- for this exemption on the part of the executives stemmed either from statute or from a regulation.

Mr. Paul A. Sweeney: No, not the basis for exemption.

No, Your Honor.

I said that the person was ordinarily protected in their action --

Chief Justice Earl Warren: Yes.

Mr. Paul A. Sweeney: -- if it would a constitute trespass or a tort.

Chief Justice Earl Warren: Yes.

Well, his -- his protection comes from the fact --

Mr. Paul A. Sweeney: Yes.

Chief Justice Earl Warren: -- that he's responding to either a statute or a regulation.

Mr. Paul A. Sweeney: That's right.

Chief Justice Earl Warren: Now, is there any such statute or regulation in this state so far as the Admiral is concerned?

Mr. Paul A. Sweeney: Yes there's a --

Chief Justice Earl Warren: Where?

Mr. Paul A. Sweeney: Well, I would -- I would add one thing like that when I say statute or regulation or a valid order of his superiors.I think that's in that.

I have not examined the regulations to any degree.

I know there is a -- a very definite regulation.

I look at that with more care relating to the organization -- the industrial relations branch of the Navy and that provides that they shall make reports on periodic reports through the head of the department in that thing.

It has nothing to do with the release of reports to the congressional delegation.

Now, this -- this large volume here, which I've been totally unable to -- I think you can get an idea.

This has to do with the public relations of the Navy.

I think it's (Inaudible) 200 or 300 --

Chief Justice Earl Warren: Is there any regulation in there that affects the Admiral in this case?

Mr. Paul A. Sweeney: There is a -- there's one small one in here.

It doesn't seem to me to read on this much one way or the other.

Chief Justice Earl Warren: Well, if it doesn't, there's no use taking your time Mr. Sweeney.

Mr. Paul A. Sweeney: I don't think there's significant --

Chief Justice Earl Warren: Yes.

Mr. Paul A. Sweeney: -- on it.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: (Inaudible)

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: (Inaudible)

Chief Justice Earl Warren: Well, I didn't --

Justice Hugo L. Black: Did the Court of Appeals decide this on the basis that there was a duty on the part of this man to reports this to the Congress?

Mr. Paul A. Sweeney: Now, they sort of sides (Voice Overlap)

Justice Hugo L. Black: They seemed to say -- well they seemed to have gone on the basis of Justice Whittaker (Inaudible)

Mr. Paul A. Sweeney: I think the --

Justice Hugo L. Black: -- that policy.

Mr. Paul A. Sweeney: I think the --

Justice Hugo L. Black: What is the difference, so far as you're concerned between the two?

Mr. Paul A. Sweeney: Well, my idea is that they overlooked the basic situation here that there was a duty on his part, so they don't challenge it.

Justice Hugo L. Black: So, the Court went on the theory, they didn't have a right to accept the petition of Howard rather than that of Schnackenberg?

Mr. Paul A. Sweeney: They don't --

Justice Hugo L. Black: Howard --

Mr. Paul A. Sweeney: -- they don't --

Justice Hugo L. Black: Did Howard -- you say there was a duty on him?

Mr. Paul A. Sweeney: In the Court of Appeals --

Justice Hugo L. Black: The Court of Appeals says (Inaudible)

Mr. Paul A. Sweeney: They don't get on it's stand on that, but they are -- they had -- and they said perhaps, I'm reading from page 38, “Whether the courts may perhaps have gone too far down the line in developing this doctrine of absolute immunity, may be a fair question.

At any rate, we shall not be astute to develop further the categories of absolute immunity.”

Justice Hugo L. Black: But on page 39 at this first paragraph, they draw a distinction there.

I don't know what -- what they meant.

But I'm not speaking on that.

In this respect, the defendant's affidavit conceded to the Court of his official duty, that is, expected notice to the Congress and informant was made with department policy (Inaudible) he sent copies.

Did the court draw a distinction between the statement of official duty and statement of Navy policy, and do you draw any?

Mr. Paul A. Sweeney: I don't think they did because, as you said, if you read on, it is true, the sent copies, the previous members did have an official interest in being kept advised of important developments.

It is therefore understandable and certainly not abtitious officious that the Commander of the Boston Navy Yard might have considered this to be a proper exercise of his official function to see to it that the members of Congress should receive copies of such.

Justice Hugo L. Black: Well, what --

Mr. Paul A. Sweeney: Well, here is --

Justice Hugo L. Black: -- is the basis --

Mr. Paul A. Sweeney: -- here is what I think is their -- the rationale of their decision in all of its line.

It would be on a wholesome thing to extend to this situation the protection of an absolute immunity such has been held to apply to official reports to a superior officer.

They just don't like the doctrine.

I think that's what they're telling us.

Chief Justice Earl Warren: Well I thought, Mr. Sweeney, you've told us earlier that if there'd never been disputed, but what this was a positive duty on the part of the Admiral to -- to --

Mr. Paul A. Sweeney: I don't --

Chief Justice Earl Warren: -- send the -- this communication to the Congress.

Mr. Paul A. Sweeney: There's two -- two points on this.

There are two affidavits here.

There's the affidavit of the superior, Admiral Schnackenberg, “Included among Rear Admiral Howard's official duties as Commander, Boston Navy Yard is and was on September 8th, 1955, the furnishing of copies to the Massachusetts Congressional Delegation of his official notification to the Bureau of Ships of personnel action taken by him.”

Now, he states in unequivocal terms.

It was included among his official duties to do this thing.

Now, Admiral Howard expresses it slightly differently.

“In the course of my official duties as Commander of Boston Navy Yard and in conformance,” now he's got a double head and if you notice the court just took the second part of this.

They didn't say, “In the course of my official duties as commander and in conformance with Navy Department policy of keeping them advised.”

Justice Hugo L. Black: Where are you reading from now?

Mr. Paul A. Sweeney: Pardon, sir?

Justice Hugo L. Black: What page are you reading?

Mr. Paul A. Sweeney: 225.

Justice Hugo L. Black: Five.

Mr. Paul A. Sweeney: This is Admiral Howard's affidavit and the Court picked up starting in the second sentence “in conformance,” as I recall -- the language you called my attention to.

Justice Hugo L. Black: Well, are they justified in drawing from that inclusion that Howard was not compelled to obey that policy of his superiors?

Mr. Paul A. Sweeney: No, I do not think they were justified in drawing that conclusion at all, Your Honor, because you have the uncontroverted statement of Schnackenberg and Howard says, “In accordance with his duties and”, this is conjunctive, this was another reason, because of the policy of the Navy.”

They keep them advised, generally.

Justice Charles E. Whittaker: Were those the claims (Inaudible)

Mr. Paul A. Sweeney: All right, not in accordance, in the course of.

I beg Your Honor's pardon.

Justice Charles E. Whittaker: (Inaudible)

Mr. Paul A. Sweeney: I was --

Justice Charles E. Whittaker: That's right.

Now, this is why I got the distinction you from the court's opinion.

It seems to me that it has no place of decision at all unless it makes the distinction based on Admiral Howard's affidavit that he had a legal duty to file the reports with his superiors and the judgment here it held that those were not exclusive privilege.

But when it comes to the matter of the copies that were sent to the congressional delegation, both were made only in the course of official duties but in accordance with Navy policy, not any compulsion.

And therefore, Judge Magruder says, “Those were only qualified the privilege.”

Isn't that right?

Mr. Paul A. Sweeney: I think that's the interpretation, but I do not think of -- of that that is what they were leading to, but they do not dispute or they do not say anything about Admiral Schnackenberg's statement which has included among Admiral Howard's official duties is and was the furnishing of copies.

Now, a duty is -- if it's one of your duties to furnish a thing, it's mandatory on you.

Now, have I -- would again like to stress the fact that had the Court felt there was some doubt on this question, and may I add this thing for Your Honor's consideration.

It's what I regard as a finding by the District Court.

It's on page 24 -- 23, I beg, Your Honor.

The complaint in the affidavits and documents referred thereto in filed in support of this motion show conclusively that the statements attributed to the Defendant were published by him in the discharge of his official duties.

Now, that's publication.

And of course sending it to the members of Congress is publication, and in relation to matters committed to him for determination.

Now, this is the finding of the District Court.

And if the Court of Appeals had not agreed with that finding, I find it very difficult to believe that they would have taken the course that they have here.

In other words, they could have held that there was insufficient evidence to support it.

They could have drawn a inference.

Of course, it should be clearly erroneous if they all accept -- accept that.

They don't discuss anything of -- in the clearly erroneous rule.

And the argument of this case in the matters before it, this thing was stressed that it was part of the duties.

Now, as I say, I think the point about it is the Court of Appeals' opinion makes it pretty clear they don't believe the doctrine should be extended and I think it's an unwholesome thing to extend it to new categories.

That is, different things.

In other words, you have the category of a report to a superior.

That's one category.

If you had a -- a category of sending a report to Congress, they say that's extending it.

That's a new category.

I think the basic reason at the back of them is all the same, but at least they're treating them in these categories.

The category of sending a report to Congress they felt was a category in which they should not expand this.

Justice Charles E. Whittaker: At least I -- I think you -- you agree that under the law, if there was not a legal compulsion for or duty by regulation or law, having a regulational order has any effect to that, to file these reports with the congressional delegation, there would be no qualified privilege.

Mr. Paul A. Sweeney: No qualified privilege.

Justice Charles E. Whittaker: I -- I mean (Inaudible)

Mr. Paul A. Sweeney: Well, I think maybe there would be, Your Honor please, because it may be a matter that was up to his discretion as to whether he would send them to Congress or not.

Chief Justice Earl Warren: Well, is there anything on the record here that shows that?

Mr. Paul A. Sweeney: No, no, Your Honor.

That wasn't -- this is beyond the basis that this was a --a duty on his part.

Justice Potter Stewart: Yes.

And Mr. Sweeney, your answer to Justice Whittaker's question comes back to my original difficulty with your argument.

I honestly don't understand if you're -- I know you're arguing that this absolute immunity should exist because here was a man with a great deal of discretion or are you arguing that the immunity exists because here was a man with no discretion that he had to -- had to do this?

They are --

Mr. Paul A. Sweeney: I'm arguing first --

Justice Potter Stewart: Or possibly, argue -- are you arguing both?

Mr. Paul A. Sweeney: I would argue both if it's necessary.

I say as far as this case is concerned, he had no discretion on sending these reports to Congress.

He did have discretion in compiling the report that he sent to his superiors.

In other words, that is a matter that he had to make the decision now that as to what he would do about this situation that existed there.

That was entirely within his discretion.

Justice Charles E. Whittaker: (Inaudible)

Mr. Paul A. Sweeney: Now, I was going to say that there is discretion mixed up in it as far as the compilation of that report is concerned.

And that's the type of discretion that is absolutely immune.

Now, I say that under the record in this case, after he had exercised his discretion and made that report, he had no discretion, under the record in this case to -- and sending it to members of Congress.

I would go further that the case necessitates the argument and that is that he did have a realm of discretion as to whether he should send it to Congress or not because of the matters that had occurred heretofore in this field.

But the --

Chief Justice Earl Warren: But therefore --

Mr. Paul A. Sweeney: -- case was not tried -- the case was not tried on that basis.

In other words, there is not evidence in here to make the difficulty, which I think you're both suggesting, and that is that he had an area of discretion as to whether he would send it to Congress or not.

It was assumed that the record made established that he was under a duty.

Once he had made the report, it was his duty to send it to Congress.

Justice John M. Harlan: Under --

Chief Justice Earl Warren: Oh, Pardon me.

Justice John M. Harlan: Excuse me.

Chief Justice Earl Warren: Oh, I'm finished with --

Justice John M. Harlan: Under the pleadings, is there an issue of fact as to whether this was in his line of duty?

Mr. Paul A. Sweeney: Only I suppose there's an issue of fact in this extent that they alleged it was outside of it.

He alleged in his answer that it was in his line of duty and --

Justice John M. Harlan: And this came up on --

Mr. Paul A. Sweeney: This came up on a motion --

Justice John M. Harlan: (Voice Overlap) a motion.

Mr. Paul A. Sweeney: -- affidavits on a motion for summary judgment --

Justice John M. Harlan: Summary judgment.

Mr. Paul A. Sweeney: -- on absolute privilege.

Justice John M. Harlan: And the District Court treated the allegations and the Admiral's affidavit is un-denied and therefore, said there was no issue of facts.

Is that the way?

Mr. Paul A. Sweeney: That's right, Your Honor.

Chief Justice Earl Warren: Mr. Dawson.

Before you get into your argument, Mr. Dawson, would you mind addressing yourself to this last point we've been discussing and -- and tell us (Voice Overlap) --

Argument of Claude L. Dawson

Mr. Claude L. Dawson: Very well, Your Honor.

Chief Justice Earl Warren: -- tell us whether you agree with Mr. Sweeney that-- that as the record comes to us, we must -- we must take it as though the Admiral was acting under orders and--and was obliged to send this communication to Congress.

Mr. Claude L. Dawson: Mr. Chief Justice, and Associate Justices, in my answer to that I say this.

There's a total absence in the record of any such proof that he was under compulsion to send this report to the members of Congress or to release it to anyone except to the person to whom the memorandum was directed.

Now, it is true that the affidavits in this case state that it was his duty to send this report to the Admiral in charge but they cite no order.

They cite no regulation or anything that shows that that is his duty nor in the affidavit which is the Navy or -- or what he says is the Navy policy, to send this to members of Congress of all memorandums.

He cite no memorandum or order or regulation requiring them to do that.

So that in both cases, the affidavits which are shown are mere conclusions of the affiance and are not entitled to very much weight and I don't think that the Court of Appeals, when they considered them, gave them very much weight.

Justice Hugo L. Black: But they'd be entitled to weight, wouldn't it, if you didn't offer some kind of counter affidavit?

Mr. Claude L. Dawson: They'd be entitled to -- to a weight to the extent that the affidavit show, Your Honor.

Chief Justice Earl Warren: But what do you do with this -- with this finding of the court -- the trial court, “The complaint and the affidavits and documents referred to here -- therein filed in support of this motion show conclusively that the statements attributed to the defendant were published by him in the discharge of his official duties and in relations to matters committed to him for determination”?

Mr. Claude L. Dawson: Well, now, Your Honor, I'll refer you to the allegations of the complaint in which we alleged that outside of the -- of the -- in which the respondents alleged that outside of the duties, that the releasing of the memorandum to the members of Congress from Massachusetts and also releasing through the Admiral before a release to the press were outside of the duties of it.

Now, the -- the only thing that as far as the record shows in this case, and I wasn't at the trial, at the hearing rather, is the motion for summary judgment.

The motion for summary judgment in this case admits all of the facts that are well pleaded.

And of course, considers the affidavits in the case.

Now, if there is a disputed fact in which they must be under the allegations of the complaint in this case, to the effect as he was acting within the scope of his -- he was not acting within the scope of his duties, then the finding that predicated only on the affidavits has hereto in the record cannot be sustained.

And I -- that's my answer to that, Your Honor.

Chief Justice Earl Warren: We'll recess now --

Mr. Claude L. Dawson: All right, sir.

Chief Justice Earl Warren: -- Mr. Dawson.

Print this transcript Transcript:

Argument of Claude L. Dawson

Mr. Claude L. Dawson: May it please the Court.

In the brief filed by the respondents in this Court referred to the petitioner Howard as a Rear Admiral at the time of the release of the libelous memorandum in question, he was then a Captain in the -- employed in the Boston Naval Shipyard.

Now, the respond -- respondent Lyons, the time that this memorandum was issued, was the National Commander of the Federal Employees Veterans Association which has posts in various government agencies from coast to coast.

The other respondent, Mr. McAteer, was the Commander of the local post of the -- in the Boston Naval Shipyard.

There have been considerable activities.

The Federal Employees Veterans Association is composed of members all of whom have been -- have honorable discharges in the United States Army, Navy or the Marine Corps or the Air Force.

No one else is eligible for membership in this organization and the -- there's no question about their loyalty to the Government of the United States.

As a matter of fact, that is one of their cardinal principles that they have a 100% loyalty to the -- to the Government of the United States.

Now, at that time that this memorandum was issued by the Petitioner Howard cancelling the recognition that have been given to the Federal Employees Veterans Association to represent members in various grievous matters -- grievance matters in the Boston Naval Shipyard.

No notice was ever given to their respondents or to any members of the Federal Employees Veterans Association that he was passing upon a question of whether they were eligible to represent the members in the Boston Naval Shipyard.

No order to show cause why they should -- the recognition should be canceled, was ever served upon the respondents or any of the officials of the FEVA prior to the issuance of the memorandum.

Now, it seems that in this case the Government has taken a position that in issuing the memorandum in question, that the petitioner Howard was absolutely immune from -- in other words, he was absolutely privileged in issuing a memorandum in question.

Now, in that respect, there is cited in our brief a number of cases in where this -- this Court and the other courts have extended the rule of absolute privilege in the matter of adjudicating anything that fell within the duties of a public official.

But the rule is -- is very limited, and it has generally been applied by this Court and to -- and by other courts where the party issuing the libelous memorandum or the libelous statement was either charged with matters of policy.

Now, the petitioner Howard was not in anyway charged with matters of policy.

Policy of the Navy Department is made and directed by the Secretary of the Navy.

He was simply the ranking officer in charged out of the Boston Naval Shipyard at that time.

Now, his contention is, is entitled to complete immunity in libeling the respondents in this action.

Chief Justice Earl Warren: Now Mr. Dawson, a moment ago, you were speaking of issuing a report to this kind.

Are you referring to the publication of it to others or are you referring to the writing of the opinion and sending it through channels to a higher officer?

Mr. Claude L. Dawson: It is my opinion, Mr. Chief Justice that if this report had probably have been made, gone to and then not gone to regular channels but have been directed to the Chief of the Bureau of Ships in Washington, they probably would have been a privileged communication.

However, he didn't do that.

He released it to the Commander-in-Charge of that naval district, who the affidavit shows it would be immediately released to the press and it was released to all the newspapers, and the Press Associations in the City of Boston, according to the allegations of our complaint.

Justice Charles E. Whittaker: Do you think --

Mr. Claude L. Dawson: Not -- pardon me?

Justice Charles E. Whittaker: Excuse me.

May I ask, (Inaudible) that because petitioner was required by (Inaudible) to make this report in his (Inaudible)

He was not responsible for what the (Inaudible)

Do you disagree with that?

Mr. Claude L. Dawson: I disagree with that -- to this extent, Your Honor.

And that is that where a person knows that if he releases a certain communication to another party and that he knows that the other party is immediately going to release that to the newspapers, that he's just as responsible for that action as a man who released it to the newspapers.

Justice Charles E. Whittaker: (Inaudible) except in the case where the person who was trying to produce the report has no opportunity but to produce the report.

Now, is that the case here?

Mr. Claude L. Dawson: Well, that's what Judge Magruder said in his opinion.

I have no doubt about that, Your Honor.

And -- but, of course our position is that the -- that the petitioner Howard could have said to his Chief, “This is for your information.

Please do not release it to the press.”

Justice Charles E. Whittaker: Could he have done that?

Mr. Claude L. Dawson: I think he could have done that.

Now, I can't decide any regulations or --

Justice Charles E. Whittaker: Other than (Voice Overlap) --

Mr. Claude L. Dawson: -- or order to that effect but that's my own personal opinion that he could have done that.

Now, in this particular case, the release was made to the members of Congress --

Chief Justice Earl Warren: But before -- but before you --

Mr. Claude L. Dawson: -- apparently upon the theory (Voice Overlap) --

Chief Justice Earl Warren: Mr. Dawson, --

Mr. Claude L. Dawson: Yes.

Chief Justice Earl Warren: -- before you get to the release of Congress, I'd like to get this internal situation straightened out in my -- in my mind.

Now, do you mean that there was a likelihood of a superior officer releasing this to the -- to the press that a subordinate officer such as Captain Lyons was in this -- in this case --

Mr. Claude L. Dawson: Captain Howard, Your Honor.

Chief Justice Earl Warren: But Captain Howard was in this case, would have no rights to issue as a privileged communication to his superior officer, a report that he was obliged by duty to make?

Mr. Claude L. Dawson: If it was his absolute duty to do that --

Chief Justice Earl Warren: All right.

Mr. Claude L. Dawson: -- which I have some considerable doubt.

Chief Justice Earl Warren: All right.

Now in that --

Mr. Claude L. Dawson: He --

Chief Justice Earl Warren: -- let me -- let me take a break from there.

If that is your answer, what does this record show and what are we bound by so far as his official duty in connection with this is?

Now, not in the -- just from the record.

Mr. Claude L. Dawson: Well, the record is covered only by the affidavits passed to the motion for summary judgment, Your Honor.

The -- it's on 20 and 21 of the record, paragraph 6, “Included among Rear Admiral Howard's official duties as Commander in Boston Naval Shipyard, he is -- and was on September 8th, 1955, the sharing of the information concerning his command be available to the public.

And that to say the information be released to establish to the -- to official channels.

During my official absence on leave, the then acting Commandant, First Naval District Captain John A. Glick, U.S. Navy authorized a routine release through the public information officer headquarters, First Naval District, to the editors of various newspapers in Boston, Massachusetts, copies the letters,” so and so forth.

That is the only thing in the record as far as (Inaudible) about the release.

Chief Justice Earl Warren: And what --

Mr. Claude L. Dawson: To the favor now --

Chief Justice Earl Warren: Wasn't there a finding of some kind -- the Court to -- on that subject, too?

Mr. Claude L. Dawson: No, the finding was --

Chief Justice Earl Warren: Other this is one on page 23, the second paragraph in the --

Mr. Claude L. Dawson: The complaint in the affidavits and documents referred to, requirements for the motion shall conclusively be the statements interpreted to the defendant were opposed by him and the discharge of his official duties, and in relation, the matter commended to him for determination.

Now, however, Your Honor, on the -- that issue was never determined except on the basis the affidavit file within.

If you look at record on page 3 of the record in paragraph 3 of the complaint, you'll find that the eliminating part of it, it says, “Outside of his official duties on the day this memorandum, Exhibit A to release two copies of said memorandum to the United Press, the Associated Press, the International News Service, all of the daily papers in the City of Boston, and also -- and in -- and to the members of Congress.

And in so departing and in so doing, departing from his official duties and act solely in a personal capacity and beyond his official duties.”

Now, that allegation and in the -- in the complaint made an issue of fact as to whether or not they were within the line of his official duties.

And as Your Honor well knows, and it doesn't need any citation of authority, that if there is any question of fact involved, and a motion for summary judgment, the motion for summary judgment cannot be branded.

Justice Hugo L. Black: Does the --

Mr. Claude L. Dawson: That is the rule on (Voice Overlap)

Justice Hugo L. Black: For summary judgment, however, require you to go behind that and if affidavits are made refuting it or it is -- not imposed on you and viewed it, to make affidavits of your own under motion for summary judgment?

Mr. Claude L. Dawson: It's possible and of course, I was not at the trial of this case --

Justice Hugo L. Black: But I --

Mr. Claude L. Dawson: -- and I can't --

Justice Hugo L. Black: I understood.

I meant the counsel for the plaintiff.

Mr. Claude L. Dawson: Well, I think you can -- under the rules as I understand the rules in the District Court, you can move for a summary judgment either with or without supporting affidavits.

And that is true, I see no reason why the -- how they can override the positive and -- allegations contained in the complaint by affidavits.

Justice Hugo L. Black: I thought the very purpose of the motion for a summary judgment proceeding was to escape the burden of the trial on nothing -- where there was nothing on the plaintiff's side or the defendant's side except bear allegations unsupported by proof and for which -- to prove which nothing can be obtained.

Mr. Claude L. Dawson: Well, Your Honor maybe correct in that, but I've always taken the view points that if the allegations of the complaint conflict with the affidavits in question, you do have a question of fact for the jury --

Justice William J. Brennan: And how could you ever --

Mr. Claude L. Dawson: -- (Voice Overlap) court or a jury.

Justice William J. Brennan: And how could you ever have a successful motion for summary judgment if the issues raised by the pleadings supersede the motion --

Mr. Claude L. Dawson: Well --

Justice William J. Brennan: -- by creating a genuine issue (Inaudible)

Mr. Claude L. Dawson: You could -- on -- on the basis of -- of taking the deposition on the findings which is a very --

Justice William J. Brennan: But I understand your argument, Mr. Dawson is that an issue of fact was raised by the pleadings.

If that's a genuine issue of fact and that of itself is sufficient deplete a motion for summary judgment.

Is that your position?

Mr. Claude L. Dawson: Yes.

Justice William J. Brennan: Well, it --

Justice Charles E. Whittaker: (Inaudible) as I understand, you're asking Justice Brennan, it is that the conflict is sufficient to defeat a motion or judgment on the pleading would also defeat a motion for a summary judgment.

Is that right?

Mr. Claude L. Dawson: Well, that's the viewpoint that they're taking, some of the courts and I know that's primarily a viewpoint to take in one particular case I have in the Court of Claims.

And the -- that's just my own viewpoint.

I can't cite any authority at this time because I haven't any case to look it up.

I want to go to another angle in this case which I think specifically shows that the judgment of the court below could be affirmed.

Chief Justice Earl Warren: Well, may I ask you before you get to that, Mr. Dawson.

Is the issue of whether these -- this report was properly released to the press before us in this case now?

Mr. Claude L. Dawson: It wasn't argued, Your Honor in the -- in the Court of Appeals.

Chief Justice Earl Warren: The Court of Appeals said it had been abandoned at that time.

Mr. Claude L. Dawson: Well, I searched the record (Inaudible)

Apparently they had -- they just -- just didn't argue within the Court of Appeals.

And Your Honor said that in the (Inaudible) case, if you recall where the question was whether or not it was privilege, qualified to be privileged, that you permitted that question to be argued here again even though it wasn't referred too much in our -- in the Court of Appeals in the District of Columbia.

Chief Justice Earl Warren: Did you write it in the briefs below?

Mr. Claude L. Dawson: It was in -- I did not write the briefs --

Chief Justice Earl Warren: No -- no, I mean, was it raised --

Mr. Claude L. Dawson: It was not raised and that we (Voice Overlap)

Chief Justice Earl Warren: And it was not raised in the oral argument?

Mr. Claude L. Dawson: As far as I know it wasn't raised in the oral argument.

I wasn't there, Your Honor.

And I -- I don't know what they argued.

Chief Justice Earl Warren: Yes.

Mr. Claude L. Dawson: Yes.

Chief Justice Earl Warren: And was not passed upon by the Court.

Mr. Claude L. Dawson: Yes.

Now --

Justice John M. Harlan: Moreover, you haven't crossed petition here either.

Mr. Claude L. Dawson: No, that's right.

Justice William J. Brennan: Nor there wasn't a motion for rehearing, I gather --

Mr. Claude L. Dawson: No, there was like (Voice Overlap) --

Justice William J. Brennan: -- like an issue with that.

Mr. Claude L. Dawson: As far as I know there was no motion for rehearing filed.

Now, the thing that I -- I think that we can stand on in this case is a case that is recently decided by the Tenth Circuit Court of Appeals.

It is cited in my brief, it's Iverson versus Frandsen, at page 4 of my brief.

The -- memorandum which the petitioner Howard wrote in this case was not absolutely privileged, if at all it was qualified to be privileged.

And if it was proper and a report within that issue without malice probably would be protected.

Now, in this case, in the Tenth Circuit, which is a recent case, the Court -- the Tenth Circuit Court of Appeals says that there are only a very few cases where there are absolute privilege confined to a very narrow appeal such as the judiciary and the Cabinet members, people like that.

It -- I think to say that a Captain of the Navy would have absolute privilege, in my opinion would be almost a judicial outrage.

Justice Hugo L. Black: So why?

Mr. Claude L. Dawson: The --

Justice Hugo L. Black: May I ask you this, because I want to get your answers on it.

I would suppose that if the head of the department to have an absolute privilege particularly in the military, the naval -- the Navy and the Army, the lower ranking officers would have at least as much privilege because if they do not obey orders in effect, you can deduce, do not do their duty, they can be punished.

They have no discretion about obeying orders, or performing their duties, do they?

Mr. Claude L. Dawson: I -- no, they have no discretion.

They probably -- they have to perform their duties.

But to perform their duties in a proper manner is another question, Your Honor.

Chief Justice Earl Warren: Well, but --

Mr. Claude L. Dawson: What I -- I'm trying to say here now -- if you just let me go for about five minutes --

Chief Justice Earl Warren: Yes.

Mr. Claude L. Dawson: -- I'll try and show a situation in the end.

In this Frandsen case, the Tenth Circuit held that the report of a medical officer or psychiatrist who held that the plaintiff was a moron became a part of a public record, that the report was only qualified privilege, not -- not absolutely a privilege, and where it was free from malice.

Now, there's a distinguishing line in this case.

Whether the report made by the petitioner Howard was free from malice.

If he had a qualified privilege or even if he had, he loses his privilege according to the authority cited in the brief.

When he -- he parts from his report and make irrelevant statements and statements that have no business whatever being in the memorandum.

Now, what we're complaining about is that these loyal Americans, in page 12, I direct Your Honor's attention that this was contained in the memorandum.

They wondered why I'm asking what must be considered sound since the Navy Department condoned this existence, continues to permit a condition which amounts to overt subversion to exist, operate, and even deprive among moralities fall but nevertheless readily identified a group of shipyard employees.

Whatever queries that Mr. Howard had when he made that statement which is not only false but is libelous per se and is malicious because it is libelous per se, he lost whatever privilege he had, that he had only a qualified queries or even he have an absolute immunity.

The Sixth Circuit -- I mean, the Eight Circuit Court of Appeals in an early case, in Robertson versus Jordan, the Eight Circuit held in a very early case, 339 Federal 671, the old first federal --

Chief Justice Earl Warren: 339?

Mr. Claude L. Dawson: 239, Your Honor, 671.

The plaintiff was in the service of the Indian Bureau and the defendant was a publisher of a national issue amongst newspaper devoted to the cause of national prohibition.

The defendant was an employee of the (Inaudible).

The article complained was published in -- on October 13th, 19 -- or October 13th, 1913.

They charged the plaintiff directly with having a record for theft, attempted blackmail, and gross immorality in his early life.

Now, the defendant suit for libel was based upon a letter of the Assistant Secretary of the Interior insisting it was a public record.

The plaintiff recovered a judgment.

Among other things, the Eighth Circuit Court of Appeals held that to be privileged as a public record, an entry of writing or document must be made by a public officer in the line of his official duty, and is not enough that he happened to be an official or that it's lodged among the records as a public notice.

Now, there are number of other cases cited in my brief here that when a public official depart in a report from the duty that he had such as the -- the petitioner Howard did in this case, by saying that these men were subversive, all works subversive, a condition existed, which is a charge that they practically were guilty of treason and -- and he departed from -- from his facts -- it was a mere conclusion on his part which should fall -- which should not have been contained in any report to the Navy, and he released it not only to the newspaper of the country but he releases to all the members of Congress from the State of Massachusetts, and no -- and no -- for malicious libel could remain and made against any man would say against these loyal men who serve their country honorably during two wars to say that they were subversive against the interest of their country who they had served as so honorable.

Unknown Speaker: (Inaudible)

Mr. Claude L. Dawson: Well, the only thing -- the thing is that the -- that if there is, assuming that there was immunity from prosecution or from a -- from a liable suit in this case, the memorandum which the petitioner Howard issued and the conclusion in that memorandum of the charge of overt subversion destroyed any right he had of that immunity assuming that he had it in his other report.

That's the point in the case and I have several cases in my brief citing to that effect.

Now, the only thing that I have --

Chief Justice Earl Warren: I suppose again, you're speaking about the publication to the world, aren't you?

Mr. Claude L. Dawson: Yes, I am.

Chief Justice Earl Warren: And not -- not reporting to his superior officer?

Mr. Claude L. Dawson: Yes, that's right, yes.

Chief Justice Earl Warren: Yes.

Mr. Claude L. Dawson: And I think that under that phases alone the -- whatever -- there is no question -- excuse me, Your Honor -- there's no question that under the law of Massachusetts that this -- that the decision of the Court of Appeals is correct.

There isn't any doubt.

There can't be any doubt about that.

It's all the decision cited in -- in the brief here exclusively showed that -- that the decision of -- opinion written by Judge Magruder in this case is proper and correct and according to the law of Massachusetts.

Justice William J. Brennan: (Voice Overlap) --

Chief Justice Earl Warren: What governs us here, Massachusetts law or federal law?

Mr. Claude L. Dawson: Well, Your Honor, in the case of Erie Railroad Company versus Tompkins, this Court held that the law of the civil action was the law of the State or the cause of action arose conversing over 100 years to the present to this Court.

Now, I'm not prepared to argue that Erie Railroad and Tompkins case shouldn't be followed in this jurisdiction -- I mean in this case.

But it seems to me that in a libel case, that it should be followed because what constitutes libel should be measured by the law of the jurisdiction where the libel occurred.

I'm just putting that out to you, Your Honor, for I believe that that is the proper.

I understand that this Court as in several cases exempted certain actions such as actions under the Federal Depositors of Insurance law and some other thing that the federal law applies and that the state law does not apply.

However, in the -- in the case of this character, I think that the law of the Massachusetts should apply.

Now, Your Honors, I think if you -- give that consideration to the opinion of the Court of Appeals for the First Circuit and the -- written by one of our most distinguished judges in the United States, Magruder, Justice Magruder, that we will finally conclude that the judgment of the -- of that court should be sustained.

Thank you very much.

Chief Justice Earl Warren: Mr. Sweeney.

Argument of Paul A. Sweeney

Mr. Paul A. Sweeney: May I please the Court.

In a few minutes that I have remaining, I would like to clarify what we believe is the position that we take in the case, at least the position of the petitioner.

May I state at the outset that this is a little unusual in the normal government case where we represent the United States or an official in this official capacity where there's an attempt to bring an action against the -- or to compel its action.

In this case, Admiral Howard, should the decision go against him, will be held personally liable.

Now, in that situation much as we might desire a broader decision in this case, we feel it's essential in deference to our client in his personal interest to have this case decided on this narrower ground as possible.

And that is the reason why I stressed yesterday and wish to re-stress today that we believe, that under the motion for summary judgment here and the affidavits filed in support of it and the finding of the District Court, it is established that the actions of Admiral Howard, in this case, were in the performance of his duties and not in the exercise of a discretion.

I -- I stressed that yesterday and I'm merely trying to re-emphasize that.

We read that out of the motion, out of Admiral Schnackenberg's definite statement which appears on page 20 that it was a -- there's a -- at 21, I beg your pardon, that it was his duty to furnish copies.

Out of Admiral Howard's affidavit on 22 which he said, “In the course of my official duties,” he furnished this information.

Now, I have re-checked and there was no definite regulation if Your Honor please, dealing with matters of this kind.

But again, I would like to stress and touch upon the proposition that not all matters inside the department are governed by specific regulations.

There are lots of orders and duties that are assigned by either tradition or by word of mouth.

But we have these two uncontradicted affidavits and on the basis of that, the District Court, on page 23, made a finding that the statements were published, and publication of course is what gives rise to an action for defamation in the discharge of his official duties.

Now, we believe in those circumstances it was not opened to the Court of Appeals unless accept this finding aside on the ground that it was grossly erroneous and we would challenge that because the uncontradicted evidence discloses as supports this finding of the District Court, that these were actions performed with him in the carrying out of his official duties, that he was required to do it.

Now, we think in the circumstances of this case that is the disposition which this Court should make on the fact that there's a narrow case whether there was -- they're on the part of the respondents in not filing counter affidavits and not raising an appeal, the question that the finding of the District Court was incorrect and should be set aside, those are not in this case.

And that there is a simple finding of the District Court on reverse that the acts performed during the course of his duty.

Now, turning to the second point of this case, and that also was --

Justice John M. Harlan: Can I ask you a question there just to --

Mr. Paul A. Sweeney: Yes, Your Honor.

Justice John M. Harlan: -- test the scope of your position.

As I understand it, if the Department of Labor, for example, the Secretary of Labor issued a directive to all of the employees all over the country saying that it is important that the press and the public should be kept aware of what was going on in the field units.

And if therefore, they were instructed, every employee was instructed whenever he thought that he had a news item going within the line of the -- the activity of this office to issue a press statement in the -- your view that would give every employee of the department a absolute privilege, is that it?

Mr. Paul A. Sweeney: Well, Your Honor, as writing into that, a second discretion every item that he thought was newsworthy.

If there was a definite issuance of an order by the Secretary of Labor saying that in any labor dispute in which the Department is represented, he should make available to the press his comments upon that or his findings --

Justice John M. Harlan: Well, I (Voice Overlap) --

Mr. Paul A. Sweeney: -- any report of that.

But suppose that he had no discretion in the circumstances.

Yes, I would say that was the act of a superior officer that he was carrying into effect.

Justice John M. Harlan: I would suppose --

Mr. Paul A. Sweeney: And that --

Justice John M. Harlan: -- every -- every member of the Department of Labor all over the country with an absolute privilege, an absolute privilege.

Mr. Paul A. Sweeney: If he followed that particular instruction.

That would be the thrust of it.

Now, within the realms of that I find it in part as a -- there would be disciplinary measures, of course, inside the department.

It would probably cost him his job if he indulged in any -- misused his office for that purpose.

But the -- but the discipline, the punishment would have to be under departmental and not a pursuit of a private individual.

I think the necessities of the case, I would like to stress one thing more though.

The Military Department has much more strict rules of obedience and the orders passing from one person to another that are in question would be -- to be carried into effect.

But I don't think that's particularly significant to the thrust of my argument.

Chief Justice Earl Warren: As I understand, Mr. Sweeney, it is your position in this -- in this case that the Admiral was not operating under any discretionary authority when he did that.

But that this record show, and we're bound by it, to consider that he was doing this as a positive duty.

Mr. Paul A. Sweeney: In issuing the reports to the --

Chief Justice Earl Warren: As required by his superior.

Mr. Paul A. Sweeney: To the congressional delegation --

Chief Justice Earl Warren: Yes.

Mr. Paul A. Sweeney: -- that particular point.

Chief Justice Earl Warren: Yes.

Mr. Paul A. Sweeney: Now, I would like to touch on the other side, if there were some discretion in his action on that type.

In other words, if it were within the scope of his duty but it was left to his discretion whether he should send it to the Congress or not, which is really the overall point and the point is in Spalding versus Vilas.

If I could just read this short part from page 18 of the -- in the act -- as for my brief and this is a citation from Spalding versus Vilas and we think it applies definitely here except that that was the case of a Cabinet member and not on an inferior officer.

In exercising the functions of his office, the head of an executive department keeping within the limits of his authority should not be under an apprehension, that the motives that controls his official conduct may at any time becomes the subject of inquiry in a civil suit for damages.

It would seriously cripple the proper and effective administration of public affairs as entrusted to the Executive branch of the Government if he were subjected to any such restraint.

He may have the legal authority to act but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he was invested.

But if he acts, having authority, this conduct cannot be made the foundation of a suit against him personally for damages even if the circumstances showed that he is not disagreeably impressed by the fact that his action endures the effect that of another official.

Now, we think --

Chief Justice Earl Warren: Mr. Sweeney, I -- I'm still confused because I thought the -- you said that the opening of your argument this morning that you wanted this case decided on a very narrow issue --

Mr. Paul A. Sweeney: That's right, Your Honor.

Chief Justice Earl Warren: -- on the basis that this --

Mr. Paul A. Sweeney: Yes.

Chief Justice Earl Warren: -- was his positive duty --

Mr. Paul A. Sweeney: Yes.

Chief Justice Earl Warren: -- to do this, and that he was not exercising a discretion when he did it.

Mr. Paul A. Sweeney: That's right.

Chief Justice Earl Warren: Now, you've cited the Vilas case to show that it is a matter of discretion and as long as it's somewhere within the scope of his authority to put out statements of this kind that he does have a positive immunity.

Mr. Paul A. Sweeney: I made myself unclear, I'm afraid, Your Honor.

Chief Justice Earl Warren: Well, I -- I --

Mr. Paul A. Sweeney: That -- that is our -- that is our basic position, a narrow ground that I heard.

Chief Justice Earl Warren: Yes.

Mr. Paul A. Sweeney: I say if that is rejected by this Court, or I should have premised it on that basis.

In other words, if this Court felt that notwithstanding the finding of the District Court, he was not under any duty to act but merely had authority to act, or not as a case might be, then in those circumstances, this Court we feel should then decide the Vilas -- the problem.

In other words, this is a secondary position, if I might say, if the Court does not agree with the primary position that I urge.

In other words, we think that if you hold that he was not under an absolute duty to this then this Court should consider the application of the Vilas case if it were only a discretion that he were exercising.

We do not think it was a discretion.

But if the Court disagrees with our position then we think you have to reach the Vilas case.

Do I make myself clear on this alternative grounds?

Chief Justice Earl Warren: Yes.

You make -- you make it clear to this extent, but do you think we ought to reach the Vilas question, but do you urge it?

Mr. Paul A. Sweeney: No, we do not.

We do not think you need to reach the Vilas question.

Chief Justice Earl Warren: No.

No, but let me put it this way.

In the event that we don't agree with you on your major issue, and we must reach the Vilas issue, does the Government urge that under those circumstances, this man would have had an absolute privilege?

Mr. Paul A. Sweeney: Yes, Your Honor.

Chief Justice Earl Warren: You do urge that?

Mr. Paul A. Sweeney: We do urge that.

Chief Justice Earl Warren: But that I didn't understand --

Mr. Paul A. Sweeney: Well, that -- our point is that if you disagree with our basic problem and do reach the Vilas position then we urge that the discretion conferred in him under the Vilas case and in many cases in the Federal District Courts, the lower courts, sustain the proposition that he still should be accorded to absolute privilege so that he would have the freedom of acting undeterred by fear of a civil action.

Justice Hugo L. Black: Was a -- was petitioner Howard an Admiral or a Captain?

Mr. Paul A. Sweeney: He was a captain at the time that this report was issued.

He was subsequently promoted to an Admiral.

He presently is an Admiral.

Justice Hugo L. Black: Was he in command of the --

Mr. Paul A. Sweeney: He was in command of the Boston Navy Yard.

Justice Hugo L. Black: And was his reported direct (Inaudible)

Mr. Paul A. Sweeney: It was directed to the Chief of the Bureau of Ships under the chief of the office of Industrial Relations to the Navy but it went through channels.

His reports go -- he was under the -- immediately -- immediate military supervision of the Commandant of the First Naval District, so his reports, and according to Navy procedure would go from him to the Commandant of the First Naval District to probably would put an endorsement forwarded to the official to whom it was ultimately directed.

It will go to channels that way but it was directed to the Chief of the Bureau of Ships and the Chief of the Office of Industrial Relations.

If the Court have no further problem --

Print this transcript Transcript:

Argument of Claude L. Dawson

Chief Justice Earl Warren: Number 57 W. E. Howard, Jr., Petitioner versus Kenneth T. Lyons and Joseph S. McAteer.

Mr. Dawson, you may proceed.

Mr. Claude L. Dawson: Mr. Chief Justice and Associate Justices, I wanted to repeat what I said in the few moments I had yesterday that the decision in the case of Glass v. Ickes by the United States Court of Appeals for the District of Columbia was solely based upon the rank of the Secretary of the Interior.

I want to elaborate now the argument I had before this Court in December.

Justice Felix Frankfurter: Do I infer, if I may interrupt you that if this Ickes had done the same thing as a petroleum administrator which I believe he was, the -- the argument wouldn't -- do you think the case might gone differently?

Mr. Claude L. Dawson: I think that's so, Your Honor.

The rule that had seemed to have been laid down in the Spalding case, which was the one of the earliest cases on the question are viable, which predicated upon the theory that the members of the Cabinet had policy making powers.

Whether you extend that to a head of the -- of the oil production board such as Mr. Ickes was, is a -- is a question which has not been answered by the courts.

The point that I want to bring out today, in addition to the argument I made before this Court in December, is the fact that while there may be exceptions of that, while any public official in making a report to his superior may have a certain amount of privileges.

When he goes beyond that privileges and -- and inserts irrelevant matter, not material to the report in the case, then the privilege is lost.

I believe that to be the decisions of practically all of the courts in -- below.

Now, for instance --

Justice Felix Frankfurter: That might apply to a cabinet officer.

Mr. Claude L. Dawson: What's that?

I didn't hear you, Your Honor.

Justice Felix Frankfurter: That might apply to a generalization that you just submitted might apply to a cabinet officer.

For instance, if the -- if the Secretary of Agriculture would make some derogatory or defamatory statement in relation to foreign relations of Congressmen, if you will, or anything, having nothing to do and not within the wider scope of the Department of the -- of Agriculture.

Your -- your criteria which you've just enunciated, might apply to that situation.

Mr. Claude L. Dawson: I think it would, Your Honor.

And I think if that -- that rule has not been adopted by this Court, that it should be adopted.

Justice Felix Frankfurter: That would affect --

Mr. Claude L. Dawson: And then it should be at least a modification of a -- of a rule running absolutely on immunity to members of the Cabinet where they depart and caught irrelevant and immaterial and derogatory statements that stayed with the facts in this case.

Justice Felix Frankfurter: That is you -- you -- to have the cabinet officer on your argument as I follow it, you have the Cabinet Officer moving within a general circle as it were of his responsibility.

And if he travels out of that -- outside of that circle, no matter how generously drawn or broadly drawn, then he isn't acting as a Cabinet Officer.

Is that your (Voice Overlap) --

Mr. Claude L. Dawson: That's is my argument and I think the --

Justice Felix Frankfurter: Then that doesn't help us.

That -- that restricts the scope of absolute immunity which you say it should be applied or have been applied even to Cabinet Officers.

Mr. Claude L. Dawson: It just --

Justice Felix Frankfurter: It doesn't shed much light, does it?

On whether no matter how strictly you draw the line of -- within which a higher official rules if he moves within that -- that line, that circle, that area, he is in a position not unlike that but you have it also within his area.

Mr. Claude L. Dawson: Well, as I think if Your Honor will listen to the authorities, I'm sure you will, that I have here in mind that you reach the conclusion that is far and beyond the office of these members of the Cabinet that that rule has been -- as I just announced has been applied.

For instance, on page 20 of the petitioner's brief in this case, they cite the case of Miles v McGrath, is 4 F. Supp. 603 which is the decision by Judge Coleman of the District of Maryland.

Now, Judge Coleman wrote his opinion in that case in which he report -- he held that the report of the superior in -- which included certain information, which ordinarily would be libelous was pertinent to the issue involved and pertinent to the proper report issues that's been made.

However, they didn't quote this from his opinion, in which he said that -- in which he determined the immunity of the officer laid down the following rule.

Are the statements germane to the subject?

And little bit later on, I am going to this record and show that whatever these -- these respondents were charged with was not germane to the issue involved.

Judge Coleman said, “This inquiry is very essential and absolute privilege should not be allowed to extend to any irrelevant statement performed under the guise of official duty.”

Justice Hugo L. Black: Could it be --

Mr. Claude L. Dawson: There is a very --

Justice Hugo L. Black: -- could it be irrelevant if it was in the performance of the duty, they had to perform in?

Mr. Claude L. Dawson: Well, let me give you an illustration.

Justice Hugo L. Black: -- I'm just asking this.

Mr. Claude L. Dawson: If -- if it was in a reference to his duty, but what I'm complaining about is not correct facts in the case, but while the man volunteers something which is not beyond irrelevant to the -- to the -- or force that should've been made in the case.

Justice Hugo L. Black: Well that was -- it was -- you're saying that would not be within his duties.

Mr. Claude L. Dawson: Yes.

Justice Hugo L. Black: Isn't that it?

Mr. Claude L. Dawson: Yes, that's right, should not be within his duty and he's not privileged.

Now, I -- I say this that as -- as Coleman said -- and that Judge Coleman said there is a very definite distinction between granting an absolute privilege to all government officials of whatever kind and granting on those -- only to those in the major executive branches of the Government.

Just as I have indicated that they might be the head of the -- or in the department.

Now, we go to a second case that they cite in support of their -- of their there.

It's the case of Harwood v. McMurtry, which is cited also on page 20 of their brief.

In that case, the District Court said that when an officer departs from official duty and indulges in defamatory statements wholly irrelevant and foreign to his scope is not entitled to protection.

The Court went on to say that the seriousness of affording such protection under the cover of which the officers of the Government under guise of official duty may make a false and a malicious statement something and now -- subjecting another to scorn and ridicule with the ensuing damages without the injured party being able to secure a legal address cannot be doubted.

Now, also, there are a number of decisions.

This point was raised in our brief in this case.

On page 10 of the brief, a captain -- the report of the petitioner was neither fair nor reasonable and was fairly malicious being liable as perceived.

Now, what I want to get at in this case, that regardless of whether or not the Government says that this was all his privilege that the petitioner in this case lost his privilege by putting extraneous remarks in the communication which he released to the public press and which he released to the members of Congress.

Justice Hugo L. Black: Now, are you making that argument on the assumption that there were some things given in the press release in the other statement that it was his duty to give out?

Mr. Claude L. Dawson: No.

Well, I think that if the petitioner in this case had made a fair reasonable report of the activity of the respondents in this case and that it fell squarely within his duties, the report that he made would probably be privileged.

But when he departed from there --

Justice William J. Brennan: Well, may I ask there, Mr. Dawson?

Mr. Claude L. Dawson: Yes.

Justice William J. Brennan: It would probably be privileged why -- because it was --

Mr. Claude L. Dawson: Because it was made --

Justice William J. Brennan: In compliance--

Mr. Claude L. Dawson: -- in the line of official duty and required by the Congress --

Justice William J. Brennan: -- in compliance with --

Mr. Claude L. Dawson: -- duty --

Justice William J. Brennan: -- maybe regulation.

Mr. Claude L. Dawson: -- to make the report.

I say that his report to his superiors in Washington, I say he had no duty at all to release this to the members of Congress of the -- of the -- of the Massachusetts and the -- and the so called adjoining States there in Massachusetts.

Justice William J. Brennan: Well, you mean, is that to say that the -- maybe regulation which was mentioned to us yesterday did not include the -- the sending of those reports to the members of Congress?

Mr. Claude L. Dawson: I did not see the regulation.

It's not been put in any brief as I have seen and it's the first time I heard about it was yesterday when Mr. Friedman -- then it was not argued before the -- the Court as far as I know.

It was not argued before the Court of Appeals.

I go cite it and argue the case in the Court -- in the Court of Appeals.

Justice Felix Frankfurter: Well, the test of duty requires statutory command, some requirements by statute?

Mr. Claude L. Dawson: I wouldn't think so, Your Honor.

I think that he would have a right to make reports.

Now, the --

Justice Felix Frankfurter: Although there is no statute --

Mr. Claude L. Dawson: the releasing --

Justice Felix Frankfurter: -- and no exquisite regulation.

Mr. Claude L. Dawson: Well, as far --

Justice Felix Frankfurter: Like it did --

Mr. Claude L. Dawson: -- as I know there is none.

I -- I -- and -- and didn't point it out to me any brief that they have is that there is a specific regulation on time.

Justice Felix Frankfurter: You were an observer of the Washington D.C. --

Mr. Claude L. Dawson: Yes.

Justice Felix Frankfurter: -- in which you say that ninth-tenths of the business of Government is done and conceived to be done in course of duty without the statutory or any other formulated --

Mr. Claude L. Dawson: That's true --

Justice Felix Frankfurter: -- that's a question duty.

Mr. Claude L. Dawson: I think they'll have to agree with that, Your Honor.

Justice Felix Frankfurter: I think, yes and as far as I know President Coolidge is the only man I ever heard who said, when he became governor that all he had to do -- what he did was to read the revised statute of Massachusetts to find what his duties were and that's all there was to it.

I don't think anybody would have such a conception of an official duty in 1959.

Mr. Claude L. Dawson: Well, I want to --

Justice Potter Stewart: (Voice Overlap)

Mr. Claude L. Dawson: -- if I can get to my -- my point here.

Justice Potter Stewart: Well, just before you have and leave the point you're on, you -- you said a moment ago.

If you said there's no duty at all, now the fact is that this case was decided by the District Court on a motion for summary judgment, was it?

Mr. Claude L. Dawson: Yes.

Justice Potter Stewart: And then the motion was supported by two affidavits which appear in the record at page 20 and 22, I guess.

And that's all we have as to the facts of this case, isn't that correct?

Mr. Claude L. Dawson: That's all you have, yes.

Justice Potter Stewart: And certainly those affidavits alleged that there was a duty and there's nothing in the record to show that there wasn't a duty and I wondered, what was the support for your statement that there was no duty?

Mr. Claude L. Dawson: The force of the statement is --

Justice Potter Stewart: The support for it.

Mr. Claude L. Dawson: -- Your Honor, and this is -- I think that any affidavit which says that all personal matters have to be submitted to members of Congress of Massachusetts is so ridiculous as to be unworthy of belief.

There is no -- nothing in this record at all to the effect that any member of Congress asked for these reports, or if they want to complete their -- their proof in that regard, they should have had what further proof in the record, in my opinion.

Justice Potter Stewart: So, you didn't -- you didn't --

Mr. Claude L. Dawson: That members of Congress asked for this specific report, but I'm not going to argue on that question.

I am arguing on -- on the time they cover, if I can this portion of this release --

Justice Tom C. Clark: Well now -- (Inaudible) again Mr. Dawson.

Are you taking the position that in sending these copies or whatever they were, the releases to the members of Congress now the Admiral acted outside the scope of duty or that --

Mr. Claude L. Dawson: I am --

Justice Tom C. Clark: -- you're going to assume that even if it were within the scope of his duty, nevertheless, they were not privileged to which?

Mr. Claude L. Dawson: I am taking the position, Your Honor, as the First Circuit Court of Appeals held that the release of these libelous articles or libelous memorandum to the members of Congress was not privileged.

I am further taking the position that if you reach the point that they were privileged that whatever privilege hey had was lost by the language in the article itself.

And I want to get to that in a minute and show you the language in there that should not have been in that -- in -- in that article in any event, in which the authorities, all of them hold, lost the libel of privilege -- I mean the privilege of -- of absolute immunity from libel.

Justice William J. Brennan: So when you say not privileged, you mean --

Mr. Claude L. Dawson: Yes.

Justice William J. Brennan: -- outside the scope of duty?

Mr. Claude L. Dawson: Let me give you an illustration.

Justice William J. Brennan: Of what -- I wish you -- I wish you could help me --

Mr. Claude L. Dawson: I say --

Justice William J. Brennan: -- in understanding this --

Mr. Claude L. Dawson: I say that whatever he said in the article here, whatever the petitioner said in the article was the -- was not responsive to the facts in the case.

I'll give you the simple illustration.

Petitioner is at the time was a captain in charge of the Naval Shipyard in Boston, Massachusetts.

Supposing you had an accident in the yard, somebody drove a truck there and somebody stepped out from the corner and you had a clear accident.

And the commander of the shipyard not only made a report of the accident, but in addition to it, he said the man was a murderer because he had killed this man.

Now, he had a right to make a report of it but when he went beyond that and said and concluded that man was a murderer, then -- then he lost whatever privilege he had and that is exactly my position in this case.

I call Your Honors' attention to the fact that in the -- as in the appendix, through the petitioner's brief filed in the Court of Appeals is on pages 26, 27 and down to 35.

Justice Hugo L. Black: Of the record?

Mr. Claude L. Dawson: As -- of the record, of the record in the transcript of the record in this case.

Now, that was sent out as the reasons why they would withdraw recognition from the Federal Employees Veterans Association.

I direct Your Honors attention to the fact that on page 12 of the record, in paragraph 6 of this memorandum said, they wonder why a management was supposed to be considered sound since the navy department controlling this existence continued to permit a condition, which amounts to overt subversion to exist, operate, and even deprive among(Inaudible) but nevertheless readily identify a group of shipyard employees.

There was no justification, no excuse at all for charging these people with -- as the Court of Appeals for the District -- for the State of New York said on subversion, it meant destroying the Government by force and violence.

Now, in this case, they have charged him and that is actionable per se.

It is a good deal like the case which I've just illustrated to Your Honors whether the man had an accident in the yard and the man -- and -- and resulting in the death of someone and in addition to reporting of the accident.

He said that the man was a murderer.

And this -- this charge in my mind, this charge in my mind is greater than a murder because it has in the -- and the -- and says that these people are disloyal to the United States and that they wanted to destroy the United States by force and violence.

Now, let's see if there's any justification for that.

I'll just examine this exhibit that they put up.

Now, on the pages 26 and 27 where the exhibit is set -- set forth, may I ask Your Honors, if you will please, follow me on this?

The report of what they complained about that these petitioners or I mean these respondents, pages 26 and 27.

There's something about an -- an identity that the Federal Employees Veterans Association was giving an identity.

On page 27, they referred to the closing attempt to close the ropewalk.

Many employees of the organization were employed in -- in this walk.

Pages 27 and 28 complaints are made about a refusal of annual leave after employees had planned and paid for cottage rent during the summer vacation period.

Is there anything subversive about any of those three items?

On page 28, and mind you, this is all they complained about, which he says there's overt subversion.

On page 28, a complaint is made about a failure to close the shipyard when the summer heat reached the hundred mark and higher temperatures where the employees are working and attention was called of the fact that the government employees at (Inaudible) near there have been released.

Is there anything about subversive about that?

Page 29 of this -- of this memorandum reference is made to the restoration of some 100 employees of the Hingham Naval Ammunition Depot who were restored with Court order.

Is there anything subversive about that?

Page 30, still on this alleged report, blue-collar workers were asking for a raise in wage.

On page 31, the statement is made about promotional policies where employees with higher rating and better qualified were not promoted because they were Jews.

Is there anything subversive about -- to a protest that employees who had a higher rating and who were better qualified were not promoted?

All of these things that they complained about and they set forth in their exhibit in this case were nothing more or less than the ordinary matters that were raised, grievances that arise between management and the laborers.

And yet, in their press release in this case, they branded these respondents were the worst brands that that could possibly be placed on them, both of whom have been honorably served not only in alliance, not only served in World War II, but he also was called to a service in the Korean War.

Now, there is another rule on this.

Now Mr. Chief Justice, I have found some cases, too late to file a supplemental brief on them, the time I located these cases.

I wondered if we might at this time file a printed supplemental brief.

There aren't very many of them.

Chief Justice Earl Warren: You may and counsel may respond -- may respond --

Mr. Claude L. Dawson: Yes.

Chief Justice Earl Warren: -- to them if he wishes.

Mr. Claude L. Dawson: I want to bring home to this Court the privilege which has been accorded to attorneys.

Attorneys have had almost absolute immunity in any matters before the Courts in pleadings, briefs, comments of the courts and so on and so forth.

But the rule is the same, as far as attorneys are concerned that the privilege maybe lost and have been lost in a number of cases for they went outside of the record and -- and charged things that were not complement to the record.

Now, in this case I say that the charging of these men with overt subversion is clearly out of the record and not justified by anything that happened at the Boston Naval Shipyard.

In the case of an anonymous Attorney v. (Inaudible) and this is a Second Circuit 48 F.2d 571.

This is one of the cases I have not included in my brief.

This was a suit for libel brought by the appellant against the appellees.

The facts in the case were as follows.

The appellant was attorney at law and sued for damages allegedly he was liable for reasons that the allegation contained in the complaint filed or set aside an order of settlement and discontinuous of an action wherein he was named as a defendant -- was discontinuous was entered December 24, 1924 in a cause -- involving the appellee (Inaudible).

The attorney, Bateman appeared -- appearing for as an attorney.

The basis of the suit was to set aside the discontinuous as it was it -- issued duress.

The suit was compromised and discontinued or the litigation or the disposition of one's estate of a William E. Smith.

It was claimed that Smith was induced for fraud and forced to marry one, Clare Smith that he was in impaired mental condition that he executed the last will and testament which was obtained by fraud and undue influence.

And these conveyances and assignments were made which were also fraudulent and the suit sought to enjoin them, defendants think therein named from transferring, conveying, or otherwise disposing other property.

The 20th paragraph of the complaint read, that the said settlement, the plaintiff has obtained evidence of the said settlement which leads them to believe, and she has an information belief that the death of the said William E. Smith was brought about by the defendants pursuant to their fraudulent plan and -- and conspiracy here and about set forth.

This case came to the Second Circuit.

The present complaint was dismissed on motion.

First, testing the sufficiency of the complaint the appellees are deemed to have conceded the truth.

The Court of Appeals for the Second Circuit stated that the allegations are libelous and (Inaudible) and unless they are privileged, they in effect charge the plaintiff with crimes that cancel our privilege in respect to such statements, were all written and made in judicial proceedings and pertinent thereto.

In England, they hold that the immunity is much broader than it is in the American Courts.

The American crew -- crew is that pervasive loss -- if the libel is irrelevant and cited in a large number of cases in support thereof among them are these two Massachusetts cases.

Now, the rule in the Massachusetts in Barnett versus Loud 226 Mass 447, it was held that a statement in an answer seeking recruitment for rent of a room that the lessor allowed a vile woman in -- to frequent his office and therein gamble in office hours is not privileged, not being pertinent and material to such acts not interrupted or attending to the tenant's possession are not grounds for recruitment in an action for rent.

There are a number of other cases in which the privilege of a -- an attorney has been lost by irrelevant matters stated in pleadings or in motions there.

And I am contending in this case by including in this release with the fact that he's charge these men with overt subversiveness on which it was held according to the Court of Appeals of the -- of New York.

It was held -- shows that that it was -- overthrow the United States Government by force and violence.

That case came up in a question of the Communist Party of New York brought an action to set aside a statute in that State on the grounds that it was unconstitutional.

The statute provided among other things that if that no one is a member of an organization which was subversive could -- could have any right to have a teacher's position in the State of New York.

The Court of Appeals held in that case that the organization who brought the action was not subversive, because they did not advocate the overthrow of the Government by force and violence.

Now, in this case, I don't know how much time I have left, but I would just want to say this, that I'm a little bit amazed that a Department of Justice dedicated to liberty, injustice, and the right for all that would come before this Court and ask this Court to make a decision or make a decision to the effect that hundreds and even thousands that we take -- there'd be hundreds of captains, but there'd be others in the Army and the air forces could have the same rank as the petitioner in this case, that if you would have absolute authority to say anything that you wanted to about anyone else so long as you made it in official report.

Your Honors, that is not the law as I find it that they all -- that it has to be pertinent to the issues involved in this case.

If Your Honors adopt such a rule as that, what happens?

Are we to go back to the law of the jungle?

Are we to go back to the old fashioned custom of doing?

Because red blooded men are not going to take these things lying down, in my opinion, they are not anyway.

Now, the -- in this case, the petitioner, by including in there this libelous charge which is libelous per se in charging these men with overt subversiveness certainly lost any privilege he had.

And I also have the other authorities, which is contained in my brief to -- to that effect and I'm not going to repeat them here because they are in the brief.

But I would like to submit this supplemental brief.

Now Your Honor, Mr. Chief Justice, would it be necessary that I'd file a -- a printed brief on that?

Chief Justice Earl Warren: No, the system memorandum of authorities, I think that you could, you may file it typewritten.

Mr. Claude L. Dawson: Yes, very well.

Thank you!

Justice Felix Frankfurter: Before you sit down, may I ask you this question Mr. Dawson.

Mr. Claude L. Dawson: Yes, sir, Mr. --

Justice Felix Frankfurter: I understand the latter half of your argument namely, even assuming there is privilege, it is lost or surrendered or not availed at all -- at all events, if they'll be included in the utterance or the printing of -- of statements, accusations, defamatory accusations that are outside of the sphere of relevance, whatever that maybe.

I follow that argument.

The first part of your argument that the Vilas case is restricted to cabinet rank that was a part of your argument in order to go with you there, this Court would have to reject Miles and the Glass and the series of other cases in which the doctrine was not so restricted.

That is correct, is it not?

Mr. Claude L. Dawson: I think that's true because I think --

Justice Felix Frankfurter: Because in the Miles, the Miles case was a lieutenant commander.

They are not -- what was this man, he became an admiral here or the captain.

Mr. Claude L. Dawson: I -- I also ask Your Honor that you consider the language of Judge Coleman on the latter part of my argument.

Justice Felix Frankfurter: Yes, I'm not -- well, I'm putting the latter part aside.

That's a different argument, but merely as to the scope of the absolute privilege as to which your argument is that it is restricted to cabinet rank, Miles and all the other cases are against you on that.

We would have to reject that series of cases.

That's correct, isn't it?

Mr. Claude L. Dawson: I think that's probably correct, Your Honor.

I admit I -- they would be --

Justice Felix Frankfurter: That doesn't touch your second argument.

Mr. Claude L. Dawson: That -- that goes to the report on whether it would go to the release to the members of Congress, I don't know.

Justice Felix Frankfurter: But that would be a different question.

But -- but if your first -- if your first branch, the first branch of the argument is correct, all we have to do in these cases is say the member of the Cabinet and that's rather easy to determine, isn't it?

Mr. Claude L. Dawson: Yes, and I am -- that's definitely what was held by the Court of Appeals in the Glass v. Ickes case because I told you -- as I told yesterday, I was a counsel for Mr. Glass, co-counsel for Mr. Glass in that case.

Justice Felix Frankfurter: But that was definitely not held by Judge Coleman in the Miles case, which you rely on another branch.

Mr. Claude L. Dawson: Well, I rely on, of course, the District Court and Judge Coleman, a very distinguished judge --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Claude L. Dawson: -- of the --

Justice Felix Frankfurter: I'm not suggesting --

Mr. Claude L. Dawson: (Voice Overlap)

Justice Felix Frankfurter: -- we have banned bond, but I am suggesting that we'd have to reject the point of view on which a decision rests.

Mr. Claude L. Dawson: Yes, I think maybe, yes, very well Your Honor.

Thank you very much.

Chief Justice Earl Warren: Mr. Friedman, when did this regulation that you say require -- required this man to communicate these views to the Congress?

When did that come to light in this case?

Argument of Daniel M. Friedman

Mr. Daniel M. Friedman: Oh yes I just found in two or three days ago, Mr. Chief Justice.

It was brought to my attention.

Chief Justice Earl Warren: Well, I would think it would be very difficult to rely heavily on -- on it to -- to the effect that this man thought it was his duty.

If that'd had never developed in the -- in the trial court or in the Court of Appeals or in your briefs in this Court or at the time of the first argument of this Court and never until couple of days ago, how can you rely on that very heavily as -- as being a part of his duties that he was performing?

Mr. Daniel M. Friedman: Well, I -- frankly to this day, Mr. Chief Justice, I don't know whether Admiral Howard was or was not aware of the regulation.

Justice Felix Frankfurter: What's the alleged date of the regulation?

Mr. Daniel M. Friedman: Do you want the date?

Justice Felix Frankfurter: I don't mean by alleged then, what's this for?

Mr. Daniel M. Friedman: His regulation was published in 1955.

Justice Felix Frankfurter: So it must have been that --

Mr. Daniel M. Friedman: Before.

Justice Felix Frankfurter: If it's a regulation, it must have been the federal register.

Mr. Daniel M. Friedman: Now this was not a regulation Mr. Justice, this was a circular letter by the Secretary of the Navy.

Justice Felix Frankfurter: Well, he may have gotten and you not have discovered it.

Mr. Daniel M. Friedman: That is possible, I don't know.

Justice Tom C. Clark: Well, but if he knew anything about it, don't you suppose those affidavits would have made reference to that rather important doctrine?

Mr. Daniel M. Friedman: Well, he said in rather general terms that his duties included this.

He didn't specify the source of --

Justice Tom C. Clark: Well, that you would suppose he would ordinarily say on the -- his regulation just tells me I had to do.

Mr. Daniel M. Friedman: Well, the affidavit that he filed in general terms spoke of his duties and -- and I'd like to point that --

Justice Tom C. Clark: And an answer.

Justice Felix Frankfurter: Well, I suggest that Judge Coleman inferred duty for much more duty as there are much more duty as evidence to that.

Mr. Daniel M. Friedman: I -- I would suggest that --

Justice Felix Frankfurter: It's says the very writing of his entire duty.

Mr. Daniel M. Friedman: That in many areas in the Government where individuals have duty, that their duty to perform and it isn't specifically spelled out in black and white.

I mean, I think personally I have many duties that are not put down in specific instructions to me yet they are very definitely my duties.

Justice Felix Frankfurter: And it could be filed as a disobedience (Inaudible)

Mr. Daniel M. Friedman: I'm afraid I could and I try to avoid that.

Justice Felix Frankfurter: [laughs]

Chief Justice Earl Warren: By making public statements against people?

Mr. Daniel M. Friedman: No, Mr. Chief Justice, but if one of my duties was to make public statements, I think I would be required to make those statements.

I --

Justice Hugo L. Black: May I ask you a question about -- you treated the other case statutory regard is the same thing as a non-statutory regard as I understood.

Mr. Daniel M. Friedman: Correct.

Justice Hugo L. Black: I assume that if you had an Act of Congress authorizing it to be done, you wouldn't have much trouble, is it not?

Mr. Daniel M. Friedman: I wouldn't think so.

Justice Hugo L. Black: Now, what are the ways?

What are the considerations that you think should be given weight in this Court implying the existence of an authority, which is not authorized, assuming it's not authorized either by statute or regulation?

What are the reasons, policy, or otherwise within your judgment would -- it should be given weighty consideration in reaching a conclusion by the Court as to the authority?

Mr. Daniel M. Friedman: Well, I think there are two different types of considerations.

One, in determining the scope of the man's duties, we have to look to the actual operation of his office, just what he does.

And the policy reason it seems to me is that if you limited the scope of the duties for which he had immunity to the particular things that were spelled out then the situation would be that the government officials would be very much circumscribed.

In other words you grab that --

Justice Hugo L. Black: I understand -- I understood that argument yesterday, but -- but then quite just what I am thinking at the moment, are there any policy consideration that we have a right to take in considerate -- in -- in -- when we consider reaching a conclusion that although that no statutory authority to give out a press release and there's no regulation authorizing giving out a press release that we should nevertheless reach the conclusion in the absence of any either statutory or regulations authority or denying the authority.

We should reach the conclusion that such an authority exists.

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

I think the basic policy is that this is already is necessary for the official, efficiently to carry out his particular duties whatever these are.

Justice Hugo L. Black: With reference to a press release.

Mr. Daniel M. Friedman: Well, because again, we need to make available to members of the public important information with respect to the conduct of his post.

Justice Hugo L. Black: Now, that argument I understand.

Mr. Daniel M. Friedman: And I might mention here just briefly that in this case, it was denied under oath that Admiral Howard released this to the press.

Admiral Howard did not release this report to the press.

The report was released to the press by Admiral Howard's superior and he transmitted a copy of it through a channel.

Justice Felix Frankfurter: Mr. Friedman, there's a case that this Court has -- you've been through this much more recently than I have in which the Court's opinion spoke of the common law of the department, the common law of the department.

It sounds like it seems to me when opinion is their department, the common law of the department, which couldn't be found, formulated in any specific statute, regulation, constitution, or any of the former document just like common law decisions are not formulated.

Mr. Daniel M. Friedman: I -- I strongly urge that --

Justice Hugo L. Black: Assuming that to be correct as I -- as I do, still it might be that the common law department -- of the department would run counter to what that department has authority to do.

Why?

What are the reasons that supports your argument that public official should have attributed to them the power to give out wide-spread information to the public in connection with the performance of their duty?

Mr. Daniel M. Friedman: Well, the-- the basic nature of the -- of their function in contemporary society, the giving of adequate information with respect to the public business is as a vital agent of Government.

It's necessary, both to give the public information, and also so the public may be adequately informed as to what its Government is doing.

Justice Hugo L. Black: And their argument is -- I'm not saying that the argument would have charged you.

We are just -- their argument is that an individual has a right not to be maliciously or as they use it word wickedly and so forth, falsify the fact.

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

Justice Hugo L. Black: That's their argument.

Now, what is the -- what is the countervailing argument?

In the first place, do you think that means that they would have to show what is called legal manners or actual spike or actual spike legal manners being inferred from the fact that a statement that's wrong is made public?

Mr. Daniel M. Friedman: I'll first say, I think they would have to show actual malice in order to --

Justice Hugo L. Black: You mean the way of spying or ill will.

Mr. Daniel M. Friedman: That's right.

Justice Hugo L. Black: Something (Inaudible)

Mr. Daniel M. Friedman: And as the policy argument, of course, we're not contending that there's any public policy to be served in a particular case by permitting a government official to issue a defamatory statement.

Our point is that there's a broader public interest involved, the broader public interest ensuring that government officials do not hesitate to speak freely, to speak out when they think it's necessary in the public and --

Justice Hugo L. Black: But why should they not be -- why should they not hesitate to speak out freely about public affairs?

Mr. Daniel M. Friedman: Because of the fear that if they speak freely and if subsequently --

Justice Hugo L. Black: That -- that affects them.

I'm talking about so far as the public used to do that.

Mr. Daniel M. Friedman: Well, if -- they will hesitate to speak freely because of the fear at some subsequent date, that they may be forced to defend their actions against charges of malice --

Justice Hugo L. Black: I understand, basically, your argument seems to be something that you have not got enough to, that the policy of this Government is to have a wide dissemination of knowledge, of public affairs and what officials do in the public interest.

Mr. Daniel M. Friedman: That is correct.

And that a particular -- the public will suffer, the public will suffer if because of this fear particular individuals maybe reluctant to give out information that in --

Justice Hugo L. Black: Do you -- do you think that that forms a basis in the Court reaching the conclusion as to the existence of authority where there's no statute and no regulation that provides it?

I don't like the word presumption or those things, but then when you look at it, that what you're talking about is of such powerful weight in bringing about good government that people should not be held responsible for making public statements in connection with a public affair unless some law clearly prohibits it.

Is that the basis of them?

Does that have anything to do with your argument?

Mr. Daniel M. Friedman: I believe so and I believe that this suggestion is inherent in all of the decisions of this Court and of the Courts of Appeals, which have granted an absolute immunity to public official acts within the broad scope of their official duties and in every one of these cases.

We must assume and in testing the scope of the report that was done maliciously and as Judge Learned Hand said that it could restrict it to the particular case where it was -- the way you were sure that were was no basis for that would be fun, but this is one of these things if you permit suits, you bring in the innocent as well as the guilty.

And the result is that the officials would be very reluctant in this situation.

In other words it's the public interest in the final analysis that would suffer.

Justice Hugo L. Black: You're arguing that the public interest in that overbalanced the -- the right of the individual to maintain a private suit for them.

Mr. Daniel M. Friedman: That is correct.

Justice Hugo L. Black: Is that it?

Mr. Daniel M. Friedman: The -- the injury put it -- if I may put it this way.

The injury to the public, which would result from permitting the maintenance of this suit outweighs the injury to the particular individual which may result in the particular case he is not permitted to recover damage.

Justice Felix Frankfurter: Why did you put it in another way?

There are two public interests but they are not (Inaudible)

The interest of the, the protection of an individual against defamation is not merely the interest of that individual, its society's interest.

That of a society in which we'd like to live is a society in which the individual isn't told it's damaging (Inaudible) truth about it.

That's a public interest.

That's not merely his interest because everybody maybe without both.

But there's another public interest and that's the one you're working.

So, you've got two public interests but they do not happen to be parallel.

They happen to be conflicting.

You have to -- you have to make a strike to balance between those two kinds of public interests.

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

Chief Justice Earl Warren: Of course, Mr. Friedman, if you -- if you base it on that -- on that broad principle, how can you limit it to any particular class of public employees?

Why hasn't every public employee the right to inform -- inform the public about his particular work and his particular function in government and why wouldn't he have every public employee have the same right --

Mr. Daniel M. Friedman: Well --

Chief Justice Earl Warren: -- in the interest of the general public to -- to have an absolute privilege to say anything he wanted about anybody?

Mr. Daniel M. Friedman: I -- I think because under the responsibilities in our system of government, the power to do this is focused in certain individuals occupying certain posts.

In other words, the man who is responsible for the basic program is the one who should have the duty and the right to inform the public.

And this guarantees responsibility and that it is not permitted to everyone down the line.

Justice Felix Frankfurter: I suppose in England, I don't know anything about it.

(Inaudible) from familiarity.

I suppose in England if a high army officer would give out or make or give a press statement it'd probably would not be privileged because it's against the custom of the country for a press to talk whereas as the last it seems to be now the custom of the country for -- perhaps to talk a lot.

Mr. Daniel M. Friedman: I would like to --

Justice Hugo L. Black: Which the Court has to formulate or draw a line if it can, what is your suggestion as to how it can be drawn?

Mr. Daniel M. Friedman: Well, I would suggest two theories.

One, in the case where the officer is -- or the individual has unraised specific duty where this is part of his duties in the sense that he is obligated to perform it I think at whatever level.

He is -- he should be protected in performing that duty.

That's the case of the naval officer who made the report.

That's the case of Judge Davis -- Mr. Justice Frankfurter to which you referred yesterday, in which a supervisor of the -- of the dietetic room in a veteran's hospital made an adverse report on the plaintiff who was a kitchen helper in connection with the plaintiff's part.

I think when you're in the area of duty --

Justice Felix Frankfurter: In a press release?

Is that identical to have it a press --

Mr. Daniel M. Friedman: No.

Justice Felix Frankfurter: -- conference?

Mr. Daniel M. Friedman: No, it's not a press release.

Chief Justice Earl Warren: Suppose he had?

Mr. Daniel M. Friedman: I wouldn't think a press release in that situation would be absolutely privileged.

Justice Hugo L. Black: Could you say that (Inaudible)

Justice Potter Stewart: Can you say that only because it would be very unlikely that that would be his duty?

Mr. Daniel M. Friedman: That is correct.

Justice Felix Frankfurter: If every -- if every governmental employee shut his mouth off, we've have to pay up instead of government administration, wouldn't it?

Mr. Daniel M. Friedman: We certainly would, but we're not suggesting a role which would permit every government employee to issue press releases.

Justice Hugo L. Black: That's the reason I was trying to find out.

What is your suggestion as to --

Mr. Daniel M. Friedman: Well, our suggestion is it'd be limited --

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: -- to what we might call the policy executive level.

Now, as I said yesterday, it's a very difficult line to draw.

You can't necessarily fix the line and say that all groups on one side or all groups on the other.

I think it has to be developed in a case to case basis.

Justice Potter Stewart: Now, isn't that as I suggested yesterday really these -- that these two cases, the first case that was argued yesterday, in District of Columbia.

You're suggesting that there, there should be an absolute immunity because this is a man who makes policies with his decisions and gives orders and so on because he's an executive, he's a policy maker, he has an important job.

And now, in this second case of the First Circuit, you're saying here, there should be an absolute immunity because there's an unqualified duty.

Mr. Daniel M. Friedman: That's correct.

Justice Potter Stewart: He had the discretion.

Well now, doesn't that in fact then include all government employees because there isn't going to be people who give orders or people who take orders, and the first case, you say he gives orders.

He should not be immune, second case, he takes orders so he should be immune.

That covers everybody, doesn't it?

Mr. Daniel M. Friedman: Well, in a sense, yes, but in a very real sense, no, because well Admiral Howard we think has a privilege for what his duty is.

We don't suggest that Admiral Howard if he himself that could decide it, it would be a good thing to issue a press release without any authority to do so that he would be privileged.

I think it -- we're dealing with two different things on the one --

Justice Potter Stewart: Well, you do concede I suppose that if Admiral Howard in the course of making this report to the congressional delegation for Massachusetts had added fortuitously and incidentally my next door neighbor here in Massachusetts as a thief, that would not have been a proof.

Mr. Daniel M. Friedman: No, of course not --

Justice Potter Stewart: He had no privilege because, of course, that would have been no part of his duty --

Mr. Daniel M. Friedman: That's correct.

Justice Potter Stewart: -- to include that in the report.

That's your position.

Mr. Daniel M. Friedman: That is correct.

That would have been a fortuitous thing, having nothing to do with his duty.

Chief Justice Earl Warren: Well, Mr. Friedman, may I ask you this?

In the -- in the Federal Government alone, there are thousands of publicity agents and public relations men or whatever you call them, whose specific duty, it is to give out press releases and to inform the public about what is going on in -- in their departments.

Do you suggest that everyone of those men has an absolute immunity to say anything he wants about any American citizen or anybody who's employed in the United States Government?

Mr. Daniel M. Friedman: No, because he would have to in putting out his press releases, this would have to be again within the scope of his duty.

Chief Justice Earl Warren: Oh, yes, we'll -- we'll assume that it falls in -- as in this case within the realm of housing or if it's in defense so that department that falls within some category of defense still does he have the right to vilify anyone that he wants to with impunity just because somebody has said you're a public relations man, it's your duty to put out press releases.

Does that give him an immunity?

Mr. Daniel M. Friedman: Well, I think to whatever extent, he is under an affirmative obligation.

He is instructed to put out a press release and I think he does have absolute immunity.

Chief Justice Earl Warren: Well, then your answer to it, it would be yes.

Every -- every publicity man in the Federal Government would have an absolute immunity to say anything he wants about anybody as long as it fell somewhere within the -- the realm of his --

Mr. Daniel M. Friedman: Well --

Chief Justice Earl Warren: -- department.

Mr. Daniel M. Friedman: No, Mr. Chief Justice, because I think that the normal practice is that the responsibility for determining what would be in a press release would be at the higher level.

I think it would depend on the particular way in which the duties of the office are carried out.

If you had a director of public relations who is given broad discretion to issue press releases, which he deemed were necessary, if he were deemed to be the policymaking official which I doubt then I would think he would have that.

But if, in fact, he is just basically performing, you might say the ministerial function of carrying into effect the policies formulated by higher authority --

Chief Justice Earl Warren: Well, it can't be just a ministerial act if he is formulating the press -- the press releases himself and determining what shall go into them about individuals, can it?

Mr. Daniel M. Friedman: No -- it's not, perhaps I inadvertently used the word ministerial.

What I meant was that he was not making the basic policy determination in that situation whether particular information should be given out.

I think that what you have in this situation is the problem of -- a decision is made to make information available to the public.

That's made at the executive level.

Now, then it's his job of implementing that, determining the contact of the particular press release.

And I think when an individual in carrying out which you might say his day to day work of preparing these press releases that when he does carry that out, I think he -- he is protected to that extent.

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: That is correct.

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: That is correct.

Chief Justice Earl Warren: Would you say it's true in every situation that there is no -- that there is no -- the discretion given to public relations men to -- to formulate press releases and the contents of the releases they're making?

Mr. Daniel M. Friedman: No, I think --

Chief Justice Earl Warren: No, of course, you can.

Mr. Daniel M. Friedman: -- they make there it depends from agency to agency and I --

Chief Justice Earl Warren: Sure.

Mr. Daniel M. Friedman: -- suppose from press officer to press officer.

Chief Justice Earl Warren: Of course, they do.

Mr. Daniel M. Friedman: Again, it's -- it's I think it's the basic problem that you have in every government agency is the staff assistance --

Chief Justice Earl Warren: Yes.

Mr. Daniel M. Friedman: -- which the --

Chief Justice Earl Warren: That's right.

Mr. Daniel M. Friedman: (Inaudible)

Chief Justice Earl Warren: And all I -- all I'm trying to do Mr. Friedman is try -- try to find out in my mind how we can do what you argue doing and still limit so that it won't -- it won't be open to everybody to -- to defame the -- the reputation of citizens with impunity.

Mr. Daniel M. Friedman: Well, I suggest Mr. Chief Justice that if this Court holds that in the case before us, the previous case that Mr. Barr had immunity, that would not by any stretch of the imagination reach down to the lower level.

All that we're asking the Court to hold here is that an individual of Mr. Barr's rank who is the top executive officer have the privilege and that an official of the rank of Captain -- Admiral Howard who is under, as we believe, the specific duty to make copies of this report available to Congress, that Admiral Howard in that situation has a privilege.

And I think that when you deal with the problems at the lower level, that's something that will have to be worked out on a case to case basis as the law develop in this area after this Court had decided in Spalding against Vilas.

You have this large number of cases applying these general principles to particular factual situations.

Justice Felix Frankfurter: So that, under your view, Admiral Howard or Captain Howard if he was, if he sent the report to a friend of his who happened to be a representative from Michigan, we would not -- we could not blame him for it.

Mr. Daniel M. Friedman: That is correct.

He might still have to qualify --

Justice Felix Frankfurter: But now, that's the different story.

Everybody has that.

Mr. Daniel M. Friedman: But no, he did not claim the privilege in that situation.

Chief Justice Earl Warren: Well, how would you -- how would you -- in that situation, how would you distinguish him from your prior case with Mr. Barr?

Mr. Daniel M. Friedman: I would distinguish him because --

Chief Justice Earl Warren: Mr. Barr was -- was a deputy in the Housing Administration and that was under another agency and he wasn't even -- he wasn't even holding the position of acting -- acting director, yet he took this action.

How would you just -- how can you distinguish him between a man who is the Commandant of a navy yard and who does have some sort of -- of responsibility to inform the public unquestionably?

Mr. Daniel M. Friedman: Well, if I may refer --

Chief Justice Earl Warren: Is he a lower actual arm?

Is he a -- is he less of -- of a policymaking person than -- than Mr. Barr was?

Mr. Daniel M. Friedman: I believe so.

I've -- I've -- I would suggest it but in the case of Mr. Barr, while his agency was under the economic stabilization agency, it was an independent agency which had basic responsibility in charge of the rent control problem.

I mean, Mr. Chief Justice, I want to point out that at the time of the press release, while it is true that his formal appointment as acting director had not become effective, he was in fact the acting head of the agency by virtue of the head of the agency being out of town.

Chief Justice Earl Warren: Being out of town but he wasn't -- he didn't hold the policymaking position, did he?

Mr. Daniel M. Friedman: To -- I think he did to the -- because as of that moment when he issued the press release, he was the man who was in the office holding that office and we don't think it would make any difference if he had been permanently assigned and if I may, this one moment come to the situation of Admiral Howard that --

Justice Felix Frankfurter: What?

Mr. Daniel M. Friedman: -- whatever he may deem to be the scope of his duties, I don't believe that it could be fairly said he had the responsibility for sending reports to Congress just as he saw fit.

I think it's a different situation.

I think since he was not occupying an executive political, if you want, policy function, his responsibilities and powers are more limited and he was limited to that which was his duty and we think in this case that this has shown that his duty was an affirmative one to send this report.

Thank you.

Print this transcript Transcript:

Argument of Daniel M. Friedman

Chief Justice Earl Warren: Number 57, W. E. Howard, jr., petitioner, v. Kenneth T. Lyons and Joseph S. McAteer.

You may proceed Mr. Freedman.

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

In this case which is here on certiorari to the Court of Appeals for the First Circuit, the immunity question relates not to the dissemination of information to the press, but to the dissemination of information by a member of the executive branch or the legislative branch.

The petitioner in this case, Admiral Howard, is the Commanding Officer of the Boston Navy Shipyard.

The alleged libel in this case consisted of the transmission by Admiral Howard to members of the Massachusetts Congressional Delegation of copies of a report which he sent to his two superiors in the Navy Department in Washington.

The report explains the reasons why Admiral Howard was withdrawing recognition from a Veterans Employees Group that was operating at the navy shipyard.

The two respondents in this case were two officials of that organization.

The Court --

Chief Justice Earl Warren: The Admiral was a Captain at that time wasn't he?

Mr. Daniel M. Friedman: Yes he was, he is now a Rear Admiral.

The Court of Appeals in this case held that Admiral Howard had an absolute privilege in sending the report to his two superior officials in Washington and both felt that he did not lose his privilege in transmitting a copy of the report to his immediate military commander, the commanding officer of the first naval district, even though he knew that under normal practice in that area this report would be made available to the press.

However, the Court held that when Admiral Howard also sent a copy of these -- his report to members of the Massachusetts Congressional Delegation, he lost his absolute privilege and he had only a qualified privilege with respect to that publication.

The association in this case, the Shipyard Employees Association had been in 1949 recognized as an accredited employee representative at the Boston Naval Shipyard and in accordance with the accepted navy industrial relations procedure the shipyard administration had met with these groups and conducted various employee relationships.

After a time the administration of the shipyard concluded that the activities of this association were becoming increasingly disruptive of good shipyard administration.

They found particularly objectionable, a series of newsletters that the association was publishing, was distributing to its members and also transmitting to members of the Massachusetts Congressional Delegation.

In fact after one of these things had been transmitted to the Massachusetts Congressional Delegation, so an investigation conducted by the navy department of the administration of the shipyard, and finally in September 1955, Admiral Howard decided to withdraw recognition from this organization and the alleged libel in this case is set forth in the record at page 8 to 15, and that is the report which he submitted to his superiors.

There are in this -- in the record in this case, two affidavits which have not been contraverted.

The first is an affidavit by Admiral Howard which is set forth at pages 22 and 23, in which he states that in the course of his official duties, he was advised that the charges made against the administration by this organization had been transmitted to the members of the Boston -- of Massachusetts Congressional Delegation and he further stated that the paragraph 5 of the affidavit, at page 22 of the record he stated, in the course of my official duty as commander of Boston Navy Shipyard and in conformance with navy department policy of keeping members of Congress informed of matters in which they have an official interest, he sent copies of his report to all members of the Massachusetts Congressional Delegation.

Now Admiral Howard's immediate military superior, Admiral Schnakenberg also put an affidavit in this case, set forth at pages 20 to 21, in paragraph five of that affidavit Admiral Schnakenberg stated that included among Admiral Howard's official duty as Commander of the Boston Naval Shipyard was the furnishing of copies to the Massachusetts Congressional Delegation of his official notification to the Bureau of Ships, personal action taken by him as Commander of the Boston Naval Shipyard.

Now when Admiral Howard decided that he had to withdraw recognition from this organization because of the problems that was creating in the shipyard, clearly he was required to report that under navy regulations to his superiors and there doesn't seem to be any questions in this case that the transmission of this official report gave him immunity.

Chief Justice Earl Warren: For that action.

Mr. Daniel M. Friedman: For that action, for the transmission to his immediate superiors.

It's not questioned that in this case the members of the Massachusetts Congressional Delegation were deeply concerned with what was going on at the Boston Navy Shipyard and the affidavit of Admiral Schnakenberg, not here contraverted, states that one of the duties of Admiral Howard the petition here was to send copies of this report to the concerned Massachusetts Congressional Delegation.

Justice Potter Stewart: Do you understand that to mean that it was his affirmative duty to send these reports to the members of the Massachusetts Congressional Delegation or simply that in doing so he was acting in the course of his employment?

Mr. Daniel M. Friedman: I construe that to mean this was his duty, in the sense that it was an obligation, specific obligation on his part.

Justice Potter Stewart: The Court of Appeals did not so construe that affidavit nor the facts, did it?

Mr. Daniel M. Friedman: That seems to be the opinion of the Court, because they don't discuss the affidavit of Admiral Schnakenberg in their opinion.

They do discuss the defendant that is Admiral Howard's affidavit saying keeping with navy department policy and the course of his official duties, but it seems to me that the affidavit of his direct superior there was part of his official duties, to me means something more than merely this was one of the things which he had discretion to accomplish.

Justice Tom C. Clark: He had an order of the (Inaudible)

Mr. Daniel M. Friedman: No there is no specific order.

There is this general navy department policy which the admiral was required to --

Justice William O. Douglas: (Inaudible)

Mr. Daniel M. Friedman: No he did not, there is -- there had been issued a policy directive of the Secretary of the Navy which in rather general terms say it was the duty of all naval installations to keep their local congressional delegations informed of what was taking place with respect of matters in this area.

The Court of Appeals in reaching this conclusion recognized, as I have indicated previously in my argument in the Thor case, that the policy behind the granting of absolute immunity, page 38 of the record in the Howard case, is not to protect wicked defendant from the normal civil liabilities for the publication of defamatory statements maliciously and in bad faith.

Rather the policy is to further what is deemed to be the greater public interest in ensuring the consciences public official complete freedom in the exercise of their duty without the inhibiting fear of possible (Inaudible) in which they would have to satisfy a jury of their own good faith, and carrying out that policy the Court held that Admiral Howard had an absolute protection, not a qualified privilege, an absolute privilege with respect to sending of these reports to his superior officers.

We don't think that a distinction can fairly be drawn in this case between his duty to send the report to his superiors and his duty to send it to the members of the Massachusetts Congressional Delegation.

This is not a case in which Admiral Howard fortuitously decided that this was a matter that might generally be of interest to the members of Congress and volunteered to send it.

He stated and it is not controverted that he was aware that the members of this organization had brought to the attention of the Massachusetts Congressional Delegation, their charges against the shipyard and in the circumstances, it was necessary and carrying out his duties in navy policy, that the members of the Massachusetts Congressional Delegation be kept informed of this significant step being taken at the naval shipyard, that is withdrawing recognition to this group which had been a considerable thorn in the side of the administration.

Justice John M. Harlan: Is there a -- as to his sending the reports to his superiors, is there a naval regulation as such on that?

Mr. Daniel M. Friedman: There is a general regulation on --

Justice John M. Harlan: I would assume so --

Mr. Daniel M. Friedman: And as a further regulation which is that requiring the commander of a shipyard to accord recognition to employee groups.

Now there was no specific provision in the regulation for withdrawing recognition from these groups and therefore since there is another regulation requiring him to advice but he does not conform to the general regulation to withdrawal of recognition from these groups would be required to be communicated to his superiors.

Justice William J. Brennan: A copy of --

Mr. Daniel M. Friedman: No there is a not a copy of the secretary's orders in the record, but I'll be glad to make it available, furnish copies to the Court.

Justice Charles E. Whittaker: (Inaudible)

Mr. Daniel M. Friedman: Well it states members of Congress are very anxious to keep in touch with what is going on in their respective states and districts.

Navy agencies shall keep them advised if possible in advance of any new actions or curtailment of actions which may affect them.

Justice William J. Brennan: (Inaudible) affirmative obligation to do what the captain, and the captain did.

Mr. Daniel M. Friedman: That is correct and that we believe is supported by the affidavit of his immediate military commander who says --

Justice William J. Brennan: Would you just tell Mr. Justice Clark that is not in the record.

Mr. Daniel M. Friedman: That is not in the record.

Justice William J. Brennan: And you are going to supply?

Mr. Daniel M. Friedman: I am going to submit copies of it.

Justice Tom C. Clark: Secretary you say --

Mr. Daniel M. Friedman: That is the secretary of the navy, it was published no February 3, 1955.

Chief Justice Earl Warren: Who was that directed to Mr. -- who was that directed to?

Mr. Daniel M. Friedman: I'm trying to check, it was a very broad direction.

I think it was distribution list to in effect all naval installations or something like that.

Justice Tom C. Clark: (Inaudible), is that right?

Mr. Daniel M. Friedman: That is right.

The specific provision says that legislative matters, when (Inaudible) with respect to legislative matters, those would be handled through the navy department in Washington, but all others maybe handled -- shall be handled.

And we think this was -- here the Admiral was carrying out his duty of advising the members of the Massachusetts Congressional Delegation of what he was proposing to do there.

Justice Charles E. Whittaker: (Inaudible) his publication of controversy or the sending of literatures to members of the Massachusetts Delegation by --

Mr. Daniel M. Friedman: By the respondent.

Justice Charles E. Whittaker: By respondent, that's in the record –-

Mr. Daniel M. Friedman: Yes Mr. Justice, in Admiral Howard's report he pointed out at page 12 of the record, just after folio number 14, he states, speaking of the publications of this group, thereby design, they are sent to members of Congress and furthermore in -- he also refers to page 14 of his report to the fact that the Chief of Bureau of Ships in the navy, made an official investigation as a result of certain charges made by this organization and finally in his affidavit Admiral Howard suggests at page 22, paragraph three, in the course of my official duties as commander Boston Naval Shipyard I was advised that a list of charges against the Boston Naval Shipyard management made by the Federal Employees Veterans Association was given to every Massachusetts Congressman and Senator.

So that in this case, the organization involved itself had taken the initiative in widely publicizing these charges and Admiral Howard also stated in his report and in his affidavit that these charges had not only been brought to the attention of the Massachusetts Congressional Delegation, but has been widely distributed to the press, both of wire services and the Boston newspapers, and there has been an investigation of some of these charges by the navy department, a report of that investigation similarly had been transmitted to the Congressional delegation.

In the circumstances we think that Admiral Howard was doing no more than his duty when he made available to the interested members of the Massachusetts Congressional Delegation copies of his report explaining why he was withdrawing recognition.

The rule -- the Court of Appeals which is that Admiral Howard had only a qualified privilege, would have the same deleterious effect on inhibiting this high government official, the performance of his official duties as the requirement of qualified privilege in the case of the executive officer.

I think it was put very well by Judge Woodberry in his dissenting opinion when he stated, at page 41 and 42 of the record, I would say that Congress can be assured of receiving a free flow of un-watered down information of the kind it needs wisely to exercise it's legislative supervision over the military establishment, only if military officers like the defendant are free from the restraints naturally flowing from the fear of a lawsuit, in which they might or might not succeed in convincing the trier of facts of their good faith, and then he said as far as sanctions are concerned, it seems to me that the fear of military discipline, perhaps at the instigation of a member of Congress outraged at the liable of a constitution provides an adequate --

Justice John M. Harlan: Who pays the judgment in these cases?

Does the government come up --

Mr. Daniel M. Friedman: The individual.

Justice John M. Harlan: Does the government come up and pay them?

Mr. Daniel M. Friedman: No, the individual to these cases pay the judgment.

I mean it might be possible for them to seek readdressed in Congress --

Justice John M. Harlan: What I was wondering if you had a case where a man thought he was doing the proper thing, his superior approved it and then (Inaudible) he gets a judgment for libel against him, have you had any cases of that kind, do you get (Inaudible) or what happens?

Mr. Daniel M. Friedman: I don't know of any such cases I would suggest that hitherto the cases that have gone to judgment have resulted in the recognition of the absolute privilege.

There was one case many years ago involving a marshal who was held responsible and I don't know what happened.

The United States as such would not been liable for --

Justice John M. Harlan: No, that is matter (Inaudible)

Mr. Daniel M. Friedman: There is one further matter which I like to allude to briefly in connection in this case, which was touched on but no decided by the Court here and that is the question whether in determining the scope of the privilege which the government official has, you look to state or to federal law to determine that question.

The Court of Appeals found it necessarily to decide it because it said that either under federal or state law there would be only a qualified privilege.

We have set forth in our brief the reasons why we believe that this question is to be decided by federal and not by state law.

The Court of Appeals at least suggested that, that was appropriate rule at page 40 where it stated in the absence of a prescription by the Congress, is it not a function of the federal courts to formulate the rules of liability applicable to official actions by civilian or military offices of the United States regardless of what the state courts might say.

Justice John M. Harlan: The law is the same in this instance, well Massachusetts better (Inaudible).

Mr. Daniel M. Friedman: Well the law in -- the Court of Appeals says the law is the same in both instances holding that he did have an absolute privilege.

We are urging that he does have an absolute privilege and we urge that, that question is to be decided by federal rather than by state law.

I won't burden the Court with it because I think the theory has been set forth fully in our brief and I might just state that hitherto all the cases which have dealt with this question of liability of government official, absolute immunity for defamation have assumed, at least sub silentio that it is a question to be decided by federal rather than by state law.

Justice Potter Stewart: Mr. Friedman before you sit down I don't want to pursue this further except to me its quite important because I think this -- at least it occurs to me maybe quite a different kind of case from the preceding case, and I gather that's your position, is it not?

Mr. Daniel M. Friedman: I think so.

Justice Potter Stewart: That in this case the petitioner should have absolute immunity because it was his affirmative duty to do exactly what he did, and that is to send the material to the Massachusetts Congressional Delegation.

Mr. Daniel M. Friedman: That is correct.

Justice Potter Stewart: Now its true is it not that the Court of appeals for the First Circuit did not take that view of the facts, I'm referring to page 39 of the record, where they don't say it's the petitioner's affirmative duty at all.

I simply say it's understandable that he might have conceived it to be his duty and we don't criticize him for doing it, but that's a long step from saying it was his affirmative duty to do so.

Mr. Daniel M. Friedman: Well I think the Court of Appeals for one thing has not -- they have not given sufficient weight to the affidavit of his commanding officer.

Justice Potter Stewart: How about the finding of fact of the District Court?

Mr. Daniel M. Friedman: Well the finding --

Justice Potter Stewart: It is on summary -- on a motion for summary judgment.

Mr. Daniel M. Friedman: The findings of fact of the District Court set forth at page 23 and they have not been challenged, and the statement of the District Court is the complaint, affidavits and documents show conclusively that the statements attributed to the defendant were published by him in the discharge of his official duty and in the light of matters committed to him for determination.

Justice Potter Stewart: There again there may be a latent ambiguity there, there is a difference between having an affirmative positive duty to send this material to Congress on the one hand, and the conclusion or the statement that in sending it he was acting generally in the performance of his employment and the course his duties.

Those would be different states of fact, wouldn't it?

Mr. Daniel M. Friedman: Yes that would be -- if it were the lighter situation, it would be analogous to the previous case.

Justice Potter Stewart: Right.

But it's sure is your position that the facts here show these two affidavits and the findings of facts of the District Court relaying on the affidavits clearly indicate that in this case it was his affirmative duty to send these communications to the Congressmen, is that right?

Mr. Daniel M. Friedman: That is correct.

Justice Potter Stewart: And you would agree with me wouldn't you, that the Court of Appeals didn't understand the facts to be that way.

Mr. Daniel M. Friedman: That itself, that the Court of Appeals did not overturn the finding of the District Court.

Justice Potter Stewart: Well not explicitly.

Mr. Daniel M. Friedman: Not explicitly, and the Court of Appeals it seems us overlooked the affidavit of its commanding officer.

It relied solely on the affidavit -- according to the affidavit of the petitioner, that he was merely carrying -- acting in conformity with may be department policy.

Justice Felix Frankfurter: Were the affidavits before Judge Daley when he wrote opinion on which Judge McCarthy relied?

The reason I ask you is because I don't see how you can state answering Justice Stewart's question that exactly -- in the exercise of his or her official function, that maybe the official function and duties flowing from that implied from the office as against a duty explicitly imposed upon it, they are very different things.

But if you tell me that before Judge Daley who is indeed a very careful judge, the affidavits were before him, I could read what he said differently.

Mr. Daniel M. Friedman: Mr. Justice I don't believe it was Judge Daley --

Justice Felix Frankfurter: Yes he was.

Mr. Daniel M. Friedman: I believe it was Judge McCarthy and Judge McCarthy quoted from an opinion of Judge Daley in another case.

Justice Felix Frankfurter: Well I thought he sat first in a trial -- all right.

Mr. Daniel M. Friedman: And the opinions were before judge -- evidenced before Judge McCarthy.

Justice Felix Frankfurter: Now, well that makes it -- all right, then all we have official duties in the relation to matters committed to him for determination.

Now you say that must mean explicitly imposed on him, is that it?

Mr. Daniel M. Friedman: Well I think we have -- I construe that to mean that, in the light of the affidavit of Admiral Schnakenberg.

Justice Felix Frankfurter: And those were before Judge McCarthy.

Mr. Daniel M. Friedman: Yes.

Justice Felix Frankfurter: What was the case that Judge Daley –-

Mr. Daniel M. Friedman: I'm sorry I'm not familiar with that –-

Justice Felix Frankfurter: Well, would you please find out what it is?

That's a very careful opinion of a very careful judge.

Mr. Daniel M. Friedman: I will.

Chief Justice Earl Warren: Mr. Dawson.

Argument of Clause L. Dawson

Mr. Clause L. Dawson: May it please the Court.

First at outset in this case, I want to say that the cases which have granted absolute immunity are the cases of a libel, have been limited to members of the cabinet who have policy making powers.

I know of no cases, except to the heads of the departments where they have been granted absolute immunity unless they had public policy making power.

A case of that (Inaudible) was decided solely on the question of record.

I know that, because I was a counsel for the plaintiff in that case, and I argued that case before the United States Circuit Court of Appeals for the District of Columbia.

The immunity which was granted to Mr. (Inaudible) in that case, was based solely upon the fact that the libel press release which he had issued in that case was sent to press under the signature of Secretary of the Interior.

That case was argued before -- one of the judges was Judge Truman.

The comment of Judge Truman is shown on page five of my brief, in which he holds and while he concurs in the opinion sustaining the question of immunity from libel in that case, he says that he thinks that the courts have gone too far in granting immunity to public officials.

I think the courts have gone entirely too far.

Why should any public official be privileged to libel, any public, any citizen of the United States?

It is true that the officer who holds a job position such as Secretary of Interior or other member of the cabinet should have a certain amount of immunity, but when he departs from that and fortuitously, maliciously, wickedly and issues a libel, he should be responsible for to same as any other official of the -- or any other person, American citizen of the United States.

Now there is point that hasn't been argued in this -- they haven't touched upon in this, before this Court, and I want to bring it to your attention, it is covered in our brief, filed in this case and that is the question of whether the statements contained in the libel communication are domains to the subject matter.

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HOWARD v. LYONS. The Oyez Project at IIT Chicago-Kent College of Law. 27 April 2013. <http://www.oyez.org/cases/1950-1959/1958/1958_57>.

HOWARD v. LYONS, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1950-1959/1958/1958_57 (last visited April 27, 2013).

"HOWARD v. LYONS," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 27, 2013, http://www.oyez.org/cases/1950-1959/1958/1958_57.

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HOWARD v. LYONS