ROSENBLATT v. BAER
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Arthur H. Nighswander
Chief Justice Earl Warren: Number 38, Alfred D. Rosenblatt, Petitioner, versus Frank P. Baer.
Mr. Arthur H. Nighswander: Mr. Chief Justice, and may it please the Court.
In granting our petition for certiorari, the order of this Court stated that counsel had directed in addition to argue the question whether at the time of respondent's employment as supervisor of a public recreation area, he was a public official under the decisions of this Court in New York Times against Sullivan and Garrison against Louisiana.
By placing a case on the court list for summary argument, we assume that the Court is interested primarily in the very important question which is left unanswered by New York Times and Garrison as to where the line shall be drawn with respect to the protection of the First and Fourteenth Amendments.
The question is whether this Court having enunciated New York Times a constitutional rule which appears to us to be clear and sound should now limit the rule to public officials in the very narrow sense as argued by the respondent here or include within it public employees who may technically fail to meet a very narrow test, but who nevertheless by reason of the positions they hold, such as the respondent here, have responsibility and authority for action or decision in an area in which the public has a legitimate interest and concern.
In New York Times, the plaintiff or the Commissioner for the City of Montgomery, Alabama in charge of police, the court said “We have no occasion here to determine how far down the lower ranks into the lower ranks of government employees the public official designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included.”
Now, if we did not believe that the respondent here falls within the scope of New York Times as a public official and if we did not believe that the alleged defamatory question had to do with his official conduct, if in fact they referred to him at all, we should not now be before you.
Although an excellent argument could be made, and I refer you to the brief of the American Civil Liberties Union filed here as an amicus, for a rule which commits comment on all matters of public concern and about all public servants or employees or even public men, when such statements are not accompanied by malice in the constitutional sense, we prefer to argue this case on its own facts.
The respondent was not only a public man or a public employee.He was in fact public official.
Now, in the Garrison case decided in November 23rd, 1964, after the New Hampshire Supreme Court decision in this case, the plaintiffs, you will recall, were judges.
What was said about them was in their official capacity.
No mention is made in this decision as to whether they were elected or appointed which appears to the court apparently to be of no importance.
Now, the next cases were the companion cases of Henry v. Collins and Henry v. Pearson decided in this year.
Now here, one plaintiff was the chief of police and the other was a county attorney.
And again, the court appears to have had no great difficulty in bringing them within the scope of public official rule.
It is evident that there's already been some broadening of the rule since New York Times.
Now comparing the case at bar, it should be borne in mind that the respondent, as in New York Times, was not mentioned by name or reference made specifically to the manager of the appellant area such.
The fact that comparison was made only with respect to the area commission and manager together as compared with prior management, the specific words used in the article were “What magic has Dana Beane?”
That is a new Commissioner and rest of Commission and Mr. Warner who was the new manager under the new authority set up by state legislature “wrought to make such many difference in that cash results?”
Logically then, we say that the comparison sought to be made was with the county commissioners who were elected, and Baer the manager on the one hand with the management.
Now, no effort was made in the article to pinpoint any responsibility or to accuse any one.
Now, consider the facts than in the light of New York Times and Henry case.
Baer's a party over the operation on the taxpayer on and tax for the recreation area delegated him by statute by the county commissions with approval of the county delegation and evidence by a written contract included --
Justice William J. Brennan: You say, there's a different contract?
Mr. Arthur H. Nighswander: Yes, Your Honor there was --
Justice William J. Brennan: Is that or is this a contract under which he was employed?
Mr. Arthur H. Nighswander: He was employed for approximately nine years.
And originally there was a -- a contract that was set up, and then in 1953, the legislature passed the law which set up the office of manager of the Belknap area.
And another contract was made at that time which I believe was for two-year period and thereafter from month to month.
So they continued to operate under that contract, possibly, it was from week to week.
But in any rate we had a two-year contract which was allowed to carry over.
Justice Abe Fortas: Is that contract in the record from --
Mr. Arthur H. Nighswander: Yes, it is Your Honor.
It's -- I think that there were two contracts and I think you'll find there both exhibits in the case.
Justice Abe Fortas: Well, I see you filed a transcript of record (Voice Overlap)
Mr. Arthur H. Nighswander: Yes we have, Your Honor.
Justice Abe Fortas: I see the context is in there.
Mr. Arthur H. Nighswander: And the exhibits are here before you.
Justice Abe Fortas: And did you just tell us that at the time that the alleged libel occurred, the respondent was employed on a week to week or month to month?
Mr. Arthur H. Nighswander: No Your Honor, the respondent was not employed at the time the libel was --
Justice Abe Fortas: I beg your pardon, but when -- as of the time to which the libel relates, was he employed on the long -- on the term contract or was he being employed week to week?
Mr. Arthur H. Nighswander: Well, I've said that the contract at that time which was the second one he had had, had a provision that it was to continue after the two-year period from week to week.
Justice Abe Fortas: And this was after the two-year period?
Mr. Arthur H. Nighswander: Yes it was.
Justice Abe Fortas: Thank you.
Mr. Arthur H. Nighswander: Now, under the written contract, he had supervision and control over collection of fees and charges, disbursement of fund -- some funds and approval or disapproval of the disbursement of others, the keeping of records, the hiring and firing of employees who were paid by public funds, depositing of cash, supervision of all operations including ski lifts, ski school, cafeteria, gift shop, ski shop, rental of equipment, maintenance of public property, purchases, construction and all other activities carried on at the area.
Justice William J. Brennan: And from what funds were his salary is paid?
Mr. Arthur H. Nighswander: They were paid from public funds.
Justice William J. Brennan: That is not without relation to the proceeds of the operation of the recreational area?
Mr. Arthur H. Nighswander: No.
He was on a straight annual salary basis.
He testified that he was responsible for building the area up to a value of $1 million or more and handled public funds in excess of $200,000 per year.
We say it precisely because he seeks to take full responsibility for the operation of Belknap area that he must also accept the consequences under the rule of New York Times.
He was known as Mr. Belknap area.
He was the man on a red hat for whom a ski trail was named.
He testified that he 15,000 bosses.
These were the taxpayers of Belknap County to whom he was responsible.
He was directly responsible to the county delegation where elected representatives either 23 or 24 in number.
And he was also responsible to the three county commissioners.
He testified that he was a trustee of public funds, that he was responsible for all cash receipts, and that the operation of the area was a matter of public concern and public interest.
Now, he even took an active part in public debate which have been going on ever since 1938 when this area was originally built with WPA funds as a -- with three ski jumps.
Was later expanded into a ski area and a public recreation area and there always been some dispute in a community as to whether or not this should be run by three public -- public county commissioners who are politically-oriented or to be taken away from them and placed in the hands of the special authority who understood skiing.
Now, this public debate, which was going on around 1958 and ‘59 culminated in the law which in effect did take Belknap area out of the hands of the elected county commissioners and placed it in the hands of five specially oriented people who acted as a commission.
And these people were picked because they understood skiing, because they understood recreation, were lawyers, accountants and so on.
Chief Justice Earl Warren: Who picked them?
Mr. Arthur H. Nighswander: Pardon me?
Chief Justice Earl Warren: Who picked them?
Mr. Arthur H. Nighswander: They're picked by the county delegation.
Chief Justice Earl Warren: County was that?
Mr. Arthur H. Nighswander: That's the elected representatives to the state legislature who run the county affairs within the area where they're elected.
And they're the ones that now pick the authority to run the Belknap area.
Now, Mr. Baer in this case opposed to stand of the county commissioners who hired counsel to try to prevent the passage of the Act through the legislature, but this was unsuccessful.
It was taken away.
It was placed in the hands of the new authority and it was about this time that the article was written and at that same time, a bill was then pending in the legislature again to take it out of the hands of the authority and to put it back in the hands of politically-oriented county commissioner.
So this is the backdrop of the situation at that time, and Mr. Baer was -- pardon?
Justice Abe Fortas: Is this authority -- I beg your pardon, is this authority part-time?
Mr. Arthur H. Nighswander: Yes sir.
Justice Abe Fortas: That is to say they were just citizens who were selected for this purpose.
Mr. Arthur H. Nighswander: That's correct.
Justice Abe Fortas: And as of the time to which libel related, there was a contract between this authority and the respondent here, is that right?
Mr. Arthur H. Nighswander: At the time, pardon me, at the time that the -- of which the libel related?
Justice Abe Fortas: Yes.
Mr. Arthur H. Nighswander: The respondent here was the manager of the Belknap area who was hired by the county commissioners, the political group, under written contract which by statute had to be approved by the county delegation.
And he was let go a few months before the new commission came in, the public announcement which appears in the record was that they wanted to leave the new commissioners clear so that they could pick anyone they chose.
But the fight was still going on as to whether or not there might be an act in legislature which would place the Belknap area back in the hands of these county commissioners again.
Now, as I say, Mr. Baer was engaged in this public debate.
Now he, in -- he appears rather to be insensitive of the suggestion that anyone else could've been responsible or referred to in this article, and yet he now seeks to avoid the same responsibility by arguing that he is not in the same category as county commissioners, a police commissioner, a police chief or county attorney, because he was only a public employee not a public official.
Now, it is only because he has the duties and responsibilities of a public official that the words may be said by innuendo to apply to him at all.
Now, we say the stronger he makes out his case in this regard then the more surely the New York Times must be held to apply to him.
Now, should the respondent here be able --
Justice William J. Brennan: How are we to read the New Hampshire Supreme Court's opinion on this question?
Mr. Arthur H. Nighswander: Pardon me sir?
Justice William J. Brennan: How are we to read the New Hampshire Supreme Court opinion on this question?
Mr. Arthur H. Nighswander: Well, the New Hampshire Supreme Court opinion sir, it seems to us misinterprets completely the doctrine as laid down in the Sullivan case.
They approved in their opinion, as I will point out later, a charge to the jury which is directly contrary to Sullivan which was similar to the charge that was given in Garrison and which was disapproved by this Court, and I will explain that later.
And the Supreme Court in New Hampshire seemed to think that it was a much more liberal jurisdiction as far as the rule is about libel were concerned prior to the Sullivan case and that therefore there wasn't the difficulty that there was with the Alabama law.
Justice William J. Brennan: Well, are we to treat this that the New Hampshire Supreme Court thought he was a public official?
Mr. Arthur H. Nighswander: The Supreme Court in New Hampshire didn't particularly discuss whether he was a public official or not because in their opinion, it seems to me, they don't differentiate between the public official one who's not because they indicate that their rule anyway is as liberal as the New York Times case and they said, “We see no conflict between the two.”
Justice William J. Brennan: Even if he were a public official?
Mr. Arthur H. Nighswander: Even if he were, and we think the case is clearly wrong on that as you will see if you examine the charge of the jury, and I'll give you part of it if I have time, and then note that the court said that we think this is the law and we certainly don't think that's what the Supreme Court intended to say here.
One question that we think is pertinent here is whether the respondent should be able to enlarge the meaning of the words used in the question by innuendo to include himself within the group, and thus to enforce liability while others in the same group cannot.
Now, this would be analogous to holding that while the police Commissioner of Montgomery was not specifically mentioned, could not recover without proof of malice.
The police chief has subordinate, could claim that he too was included in the state by innuendo, therefore, could bring a suit even though his superior could not.
Now, certainly if the police chief of Clarksdale could not recover, police chief of Montgomery should not be able to recover and neither should the respondent in this case.
Now what kind of a rule would it be that respondent here seeks to have this Court adopt that would distinguish between a public official and a public servant on the basis solely as to whether or not he has been delegated by law or statute sovereign power and can exercise it independently as stated in the respondent's brief, page 29.
Now, as we read this, according to this, a notary public would meet these requirements under the law of New Hampshire, he'd be a public official but a person with great authority, one who has a subordinate position like an assistant secretary of state might be considered only a public servant.
Now, many other illustrations might occur to on this point.
We must not lose sight of the fact that Baer's position as manager was created by statute, 1953, his duties as set forth in the written contract where the Commission is where the approval of the county delegation and the scope of his responsibility was even enlarged by a letter accompanying the contract from the commissioners.
He held the post for nine years as an annual salary and part of the time his contracts were of the terms of one year or two years.
A 42 Am. Jur. public officer has about 250 pages, I think, on public office -- public offices and it says in part, and I quote only from the introductory paragraphs, “Public office and public officer are terms of vague and variant import.
The meaning of which varies with the connection in which they used.Ordinarily and generally, a public officer is defined to be the right or party and duty created and conferred by law, the tenure of which is not transient, occasional or incidental but which for a given period an individual is invested with power to perform a public function for the benefit of the public.”
Now, this reference to Am. Jur. will disclose many cases where under various facts and for different purposes courts have construed the words public official or public officer.
Now, one can find authority for almost any position, but it is said the duration or tenure need not be fixed so long as not occasional and even with respect to sovereign power the fact that duties are confined in narrow limits is not considered material.
A subordinate or inferior officer is nonetheless an officer.
Now, few of the positions held to be public office which might be analogous are cited in this treaties, and some of them are officers of public institutions, superintendent of county home, superintendent of state hospital, district maintenance superintendent, deputy superintendent police and many others.
Therefore, we say that Mr. Baer's position seems to satisfy even the very narrow rule which the respondent favors.
Now, certainly, the Supreme Court could not, we believe, have such a narrow definition in mind in New York Times.
Justice Learned Hand in the case of Gregoire and Biddle, just cited in Barr-Matteo and Garrison-Louisiana, commenting upon the problem of how far the privilege of immunity of public officials from suit for statements of defamatory nature should extend states in part as follows.
The complexities in magnitude of governmental activity had become so great a must of necessity be a delegation and re-delegation of authority as to many functions, and we cannot say that these functions become less important simply because they're exercised by officers of lower rank and the executive in higher rank.
Or as Mr. Justice Black said in Barr-Matteo, the effective functioning of a free government like ours depends largely on the force of an informed public opinion.
This calls for the widest possible understanding of a quality of government service rendered by all official elected or appointed for employees.
Such an informed understanding depends of course on the freedom people have to applaud or criticize the way public employees do their jobs from the least to the most important.
Now, we do not necessarily ask the Court here to adopt a broadened rule.
However, the strength in our position, I just like to call your attention to some developments which suggest a broadening of the rule.
Now, as early as 1908, the case of Coleman and MacLennan in Kansas, which is quoted in New York Times and Garrison, stated in such a case the occasion gives rise to the privilege qualified to the extent that any one claiming to be defamed by the communication must show malice or go remediless.
The privilege extends to a great variety of subjects and includes matters of public concern, public men and candidates for office.
Analogous reasoning is found in the early affair comment cases cited in Footnote 20 of Justice Brennan's decision.
It should be noted the rule in restatement of tort, Section 607 in 1938 which reversed a previous graph which would have set forth the New York Times rule says, “Privilege of criticism of so much of another's activities as our matters of public concern includes a privilege to criticize the public conduct of all officers and employees of the United States from this corporation.”
Professor Willard Pedrick in an article in Cornell Law Review in the summer of 1964 argues forcefully that New York Times should mean that hereafter the press and all citizens will enjoy a good faith privilege with respect to discussions of matters of public concern.
Recent cases have applied the rule to a law partner of public official.
That's the case cited in New York State, Gilberg and Goffi, to a public commentator, Pearson and Alaska Publishing Company, to a public man recent case in the Western District of Kentucky September 23rd, 1965, Walker against Attorney General and many others.
Fully on question constitutional limitations says the First Amendment applies to all matters of public concern.
Justice Potter Stewart: Well that would just -- I don't know if that would be any easier test than who's the public official, wouldn't it?
Mr. Arthur H. Nighswander: It would not.
I think that we're not pressing it.
I'm only saying that there is this body of opinion that --
Justice Potter Stewart: It says that it ought to be broadened --
Mr. Arthur H. Nighswander: Correct.
Justice Potter Stewart: -- but you are not suggesting that it would be a different test --
Mr. Arthur H. Nighswander: Yes, Your Honor.
Justice Potter Stewart: -- to be sure but you're not suggesting to be easier.
Mr. Arthur H. Nighswander: I'm not suggesting that.
I don't think it's essential to our case to even enlarge the rule.
I think we can come within it, but I just want to mention that because these are the pressures that are bearing on this question today to clarify it and to broaden it.
Justice Byron R. White: You don't -- do you suggest here that as far as -- does as far as you want to go include the ski patrol?
Mr. Arthur H. Nighswander: Not as far as we want to go, Your Honor, because the ski patrol --
Justice Byron R. White: Well, (Voice Overlap) as far as I can see in your --
Mr. Arthur H. Nighswander: Pardon?
Justice Byron R. White: As far as I can see there's nothing in the standard as you would apply that would exclude the ski patrol.
Mr. Arthur H. Nighswander: Well what I'm -- what I'm saying Your Honor is that as far as our case is concerned this can be decided on the facts and leave for future determination the question of how far down the various echelon of government should go.
What I'm saying is that there are cases now pending where the courts seemed to have broadened the rule already adopted by the United States Supreme Court to include public men, such as General Walker from --
Justice Byron R. White: How do you suggest we decide it on the facts, I mean, we got to decide it against some -- some major against some standard and what is that as you -- how do you put it?
Mr. Arthur H. Nighswander: Well, this is -- it's rather difficult in any case like this to actually come right down to a decision, as Justice Fortas meant.
We do suggest in our brief here possibly how you can do it.
It seems to me that to a certain extent, the second part of the rule is important.
That is, was it within his official capacity?
Are you criticizing something that somebody did within his official capacity?
Then you look at his official capacity.
Now, it may be that the rule could be limited to this matter of visual capacity and go all the way down.
Justice William J. Brennan: Well if that so then surely the member of the ski patrol has a function in an official capacity, doesn't it?
Mr. Arthur H. Nighswander: If -- if the criticism of him were with respect to his duty on the ski patrol.
Justice William J. Brennan: Or the way a dog catcher performs --
Mr. Arthur H. Nighswander: That's correct.
Justice William J. Brennan: -- services a dog catcher, or a garbage collector -- services of a garbage collector.
Mr. Arthur H. Nighswander: That's right.
Of course in those cases, you get narrower and narrower functions and that's where the field of official capacity becomes less and less.
But nevertheless, a rule like that could be adopted but I think in this particular case it is not necessary because we're talking about the man who is actually in charge of the Belknap area who is representing the taxpayers and handling their money, and --
Justice William J. Brennan: Well, that's only to say that his official capacity is one which involves rather heavier responsibilities, and perhaps the member of the ski patrol or the other?
Mr. Arthur H. Nighswander: That's right.
Justice William J. Brennan: Is that it?
Mr. Arthur H. Nighswander: That's correct.
Now, perhaps I've suggested here also that if there is to be a limited definition of public official, then perhaps I suggest the test might be whether he has responsibility and duties with the respect to matters in which the public has legitimate interest and concern.
Justice William J. Brennan: Well, here again, I would suppose the public would have a legitimate interest in how a dog catcher performs his official duty as a dog catcher.
Mr. Arthur H. Nighswander: Quite possible sir, I -- I think it's quite possible that even this definition might be extended quite a bit beyond the facts for the case.
Justice Hugo L. Black: Many people, I suppose, would think that if my public image believed in who are not or treating animals cruelly make it to the slightest public interest and say that this man is killing dogs without any reason for it, he's doing it cruelly and so forth.
Well, I suppose that would be a matter of -- we can't say that that is not a matter of public interest that should be considered.
Mr. Arthur H. Nighswander: I think that's correct.
I think that there may -- it may very well go down much farther except that I don't want our case to be tied with this because I don't think it's necessary.
Justice Hugo L. Black: I understand.
You say your public servant more important one in some way --
Mr. Arthur H. Nighswander: That's correct.
Justice Hugo L. Black: -- has more extensive dealings for the public?
Mr. Arthur H. Nighswander: Yes.
Justice Hugo L. Black: And some money with this other man have a dog.
Mr. Arthur H. Nighswander: That's right.
Now, there is another issue that I'd like to discuss, and I see my time is already getting short, and that is the issue of whether or not there was any actual malice, because we recognized there is a qualification to this.
Now here, we are guided by the statement of the rule as set forth in New York Times where Justice Brennan defines the actual malice as follows.
Unless he proves that the statement was made of actual malice that is with knowledge that it was false or with reckless disregard of whether it was true or false, we submit the proof of malice in this case lacks the convincing clarity which the constitutional standard demands.
Now, if the Court will examine the Court's charge which is printed in full in our brief on page 71, which the Supreme Court in New Hampshire said that they approved.
He -- the court stated malice means ill will, evil motive, intention to injure, want and disregard the rights of others.
Malice does not necessarily require ill will or evil motive, although such would constitute malice but malice may consist of the intention of publication of defamatory matter with the reckless disregard of the rights of others.
And it may consistently willfully doing an act or willful neglect of an obligation which the right to know is liable to injure another regardless of consequences even though there is no actual intention there to hurt or harm an individual.
Now, we say this directly contrary to the rule in both Garrison and the Henry cases.
Actually the courts charged defines reasonable grounds for belief as the basis on which the privilege is given and said it's a qualified privilege.
The burden is on the defendant to prove good faith, to prove that the people should know about it, about what he's attempting to say and that they -- that he therefore has the duty to say it and the hopes they'll take some action.
Well, any way, if the Court examines the charge, I think you will find there are many places that indicate there's not in cons with the rule.
Furthermore, the statements for malice were given only at the end of the charge and had to do only with the question of damages.
So that we say that the burden was unconstitutionally placed upon the defendant in the case to prove good faith, which was another way of saying prove lack of malice.
Justice Hugo L. Black: May I ask you one or two questions about the facts that I'm interested in?
Mr. Arthur H. Nighswander: Yes.
Justice Hugo L. Black: What -- is this a county a job or a city job?
Mr. Arthur H. Nighswander: It's a county job.
Justice Hugo L. Black: What's the population of the county?
Mr. Arthur H. Nighswander: About 30,000.
Justice Hugo L. Black: Is it an industrial county?
Mr. Arthur H. Nighswander: Laconia is an industrial town but it has a large summer population.
It's a recreational center and that's what makes this very important to the economic community because there are many inns and hotels there as well as other recreational --
Justice Hugo L. Black: Is the salary paid for this job one that makes it rather competitive and many people would like to have it?
Mr. Arthur H. Nighswander: Well, I think there are many people who would like to have it.
I think the salary, I'm not exactly sure the figure was around $7,000 when Mr. Baer had it.
I don't know what it is by the present time, but it's a fairly popular --
Justice Hugo L. Black: Can it perform any other task?
Are there any other duties or is he limited to that?
Mr. Arthur H. Nighswander: No, this is a fulltime job of operating the Belknap Recreation Area, fulltime employee.
Justice Hugo L. Black: But (Voice Overlap) it's a rather important job of the new community.
Justice Potter Stewart: I beg your pardon.
Mr. Arthur H. Nighswander: I'm sorry.
Justice Hugo L. Black: Accepted as a rather important job of the new community.
Mr. Arthur H. Nighswander: Yes it is and --
Justice Hugo L. Black: The reason of the summer recreation purposes and so forth?
Mr. Arthur H. Nighswander: Yes it is.
It has both summer and winter, and summer time they hold motorcycle races there and other events and in the winter there are ski events and it is used for recreation of skiing, there are thousands of people there on weekends and so on.
Now, we also -- I see my time is elapsing here, but I think that the title of the article itself is the column which is written by this man, which is an unpaid column says “Out of My Head”.
What he was trying to do and if you read the articles which are here which have to do with the Belknap area out of some 600 he wrote, you would see that what he was trying to do was bring attention to various public issues.
Sometimes he made people angry.
Sometimes he stirred up discussion.
People might have called him names because of what he wrote, but what he was trying to do was focus attention on public issues within Belknap County.
And also he wanted to try to improve the Belknap area.
There was no vendetta, if you'll read the record, you see there was no vendetta against the --
Justice Hugo L. Black: Did you say it's an unpaid column?
Mr. Arthur H. Nighswander: Yes it was, Your Honor.
Justice Hugo L. Black: What is the man's business who wrote it?
Mr. Arthur H. Nighswander: Well, he ran a store and being a -- well sometime ago, he had some training in journalism.
He wanted to write a column.
And so he took the opportunity to pass these columns over to the paper under the title “Out of My Head”, Alfred Rosenblatt.
Justice Hugo L. Black: Regularly?
Mr. Arthur H. Nighswander: Pardon?
Justice Hugo L. Black: Regularly?
Mr. Arthur H. Nighswander: Regularly.
Some 600 were written altogether on various public matters and those that have to do with the Belknap area which were over some period of time are all set forth here in detail.
And in those articles, he called upon the public to tell them about certain things which he found, which would be improved or suggestions which he had to make such as giving ski lessons to children, free ski lesson or low rental of ski equipment or suggestions of this nature.
And at the same time, he also brought up questions that might be critical of the management of the area and hopes that it might be improved.
Justice Hugo L. Black: Well is this man's employment terminable at will of the county commissioners?
Mr. Arthur H. Nighswander: After his contract had expired and was continued by the terms of it from week to week it was terminable on notice by the county commissioners.
I see --
Justice William J. Brennan: Is the newspaper a defendant in this action?
Mr. Arthur H. Nighswander: Is the newspaper?
Justice William J. Brennan: Was the newspaper a defendant in this action?
Mr. Arthur H. Nighswander: The newspaper was originally a defendant and that case was apparently settled out of court before our case came to trial.
And I see my time --
Chief Justice Earl Warren: Was his week to week status due to the change in the statute?
Mr. Arthur H. Nighswander: No, the statute did not proscribe any particular term but only proscribed that there should be a manager who would be hired by the county commissioners, but with the approval of the county delegation.
This was the basis of the statute, but didn't say anything about his salary or the tenure of his office.
Chief Justice Earl Warren: Oh, I see.
Mr. Arthur H. Nighswander: Thank you.
Chief Justice Earl Warren: Mr. Brown.
Argument of Stanley M. Brown
Mr. Stanley M. Brown: If it please the Court.
Mr. Chief Justice, members of the Court, I propose to use my time on two questions only of those that have been briefed.
First one will be our view of the correct answer to the question we were specifically invited to argue.
That is whether or not Baer was or was not a public official at the time of this libel or previously when he hasn't employed by the council.
The second question to which I desire to invite the attention of the Court is the question whether a lawful occasion is a matter which properly under our jurisprudence, a court should determine to exist or not to exist or whether it involves in the usual case and in this case, questions of fact which necessarily must be determined by the jury or whatever part of our system finds fact.
Now, before I get into it, I want to if I may just for a moment, get into what the facts of this case were because it's quite apparent to me since it's only one copy of the record down here that the Court has not had the ability as yet to get those facts in line and they are these.
My client Fritzy Baer was hired in 1950 on a contract which was terminable at any time on two weeks notice by the county commissioners who hired him.
At page 6 of our brief, the salient points of that contract are set forth and that contract is specific that no sovereign powers are delegated by the county commissioners to Baer.
It is specific that regardless of how broad the language is giving him his duties, the powers are withheld.
That was in 1950.
Now, at that time the county had statutory authority to hire a supervisor for recreational area.
So that the contract was executed in accordance with the statute, but the statute is bare of any delineation of duties of powers, gives no tenure at all.
And in 1953, the only change was made was to require that the county commissioners secure the approval of the county delegation, their superiors in the public official hierarchy before they negotiated a contract but it is still set out specifically that this is a job to be negotiated on an employment contract.
Now, the second contract is made as of 1955, the man is on a week to week hiring subject to two weeks notice of termination either way.
That was his employment from then until July of 1959 and he was fired.
He was given his two weeks notice and let go in the notice in June, he's let go in July, this is six months before the libel.
There was no legislative rowel going on at the time of this libel at all, the legislature only meets in New Hampshire every other year and this is a none legislative year.
That's the situation.
Now factually this -- in this record and this is absolutely clear and there's no argument about it.
There was one individual only who had the responsibility for and actually handled cash from its being picked up at the till, at the ski lifts and the ski shop and the restaurant took that long and counted it, made a deposit slip and put it in the bank to the credit of the county and that man was Fritzy Baer, and all of the people in this county who skied who were up there knew that that was the job he did.
One thing he did in his hand, in his hand went every dollar of $200,000 a year.
And he was accounting part by putting it in the bank.
He had no authority to draw a check.
He had no authority to buy 5 cents worth of anything.
All of the controls were exercised by the county commissioners, they made all the decisions, except for one thing, that the handling of cash was Fritzy Baer all the way from the turning of the $200,000 to the bank.
Now, when this man comes out and says falsely that the income at that area is literally, and he meant it, literally hundreds of percent better under this new management than it was last year and the previous years.
And then he says this may only makes bit require that you pondered.
What happened to all the money last year?
What's he talking about?
This is not a case that was tried on presumption.
Read the record, this went through that community like wild fire and the meaning was clearly understood by everybody that Rosenblatt was raising the insinuation that Baer had been stealing.
He had been dipping in the tilt.
There's no other explanation for the language used under these circumstances and there's a prior history of two years of sniping by Rosenblatt of Baer questioning who handles the money.
Who makes the deposit?
Who does this?
Who does this?
Why won't Fritzy Baer answer these questions?
This was in public print.
All the answers were given to him privately.
He acknowledged privately that he had the answers, but he continued to ask the question public, why won't Fritzy Baer answer these questions?
Well, the reason Fritzy couldn't answer them was that this being a function of a manager.
The county commissioners told him don't, instructed him not to answer.
He had no authority to answer.
In the public debate about the money, the commissioners exercised their prerogatives.
Now that's --
Justice Hugo L. Black: Why did they tell him not to tell the public?
Mr. Stanley M. Brown: Because when this man raised these questions, the county commissioners immediately sent word to him at his store in Laconia, he owns two, that if he wanted those facts, all he had to do was to go down to the end of the street, it's perhaps 700 yards and all of the answers to all of his questions were a matter of public record at the courthouse and he was welcome to come in and they'd all be made available to him.
He eventually did, take him up on it and he did acknowledge at a budget hearing that with those records, after he took the title and got them all of his questions had been answered.
He never told the general public that his -- his questions had been answered but he acknowledged in fact they were.
This is part of the record Justice Black.
But that's the factual case that we have here.
We did not win this case on any presumptions.
We want it by a hard fought trial against my brother Nighswander and his office who are quite competent trial attorneys.
Justice John M. Harlan: How much was the rating?
Mr. Stanley M. Brown: $31,500 and there is specific evidence of lost job opportunities and lost earnings totaling $16,500 on special damages alone.
That is detailed in the Supreme Court decision as well as in the briefs.
Now getting to the question, I say this, going to Times and Sullivan public official.
This Court invited our argument as to whether this man is a public official or not.
I think it is noteworthy that there isn't a single citation of authority in my brother's brief or in the amicus brief as to what does and what does not constitute being a public official.
Now, there is a large body of law on this point.
And it is generally held throughout all jurisdictions including this one that there are two at least essential elements to being a public officer or holding a public office.
Some delegation of the sovereignty of the political body for whom you act, and some delineation in the law of what those duties are.
Now, if this Court is going to stay with the Sullivan rule, it seems to me that those of us who work down below in the trial pit or on the courts of the rest of these jurisdictions, we have a right to have that rule made a legal rule rather than a factual rule to be applied as we come here with every case.
And I think this Court has two options.
You can say in each individual case we're going to review what the actual duties or demand in office in his performance of whatever he's doing, what he's actually doing.
That's factually, and that means that some judge at pre-trial or when the case goes to the jury is going to have -- had to have a factual determination made.
The other way to do it is the way we suggest in our brief.
If a public office is one where there must be a delegation of some type of sovereignty to be exercised by the man independently.
If he looks for his authority to the statute, which is what the general law is in this field.
Then when you come into court, whether you are a public official or not can be determined as a matter of law by reference to the law where the law should be in the books, rather than by a parade of witnesses as to whether he's digging ditches or doing something else.
It should not be on a factual basis if it is a part of a constitutional rule annunciated by this Court, it should be on the legal basis.
And the legal basis is present throughout all of the statutory schemes of all the states.
Now, in my State of New Hampshire, there is a specific statute that no person shall exercise the duties of any public office without having been taken an oath.
My man never was subjected to any oath.
Neither shall anybody exercise public office in my state without being bonded.
He wasn't bonded.
The county officers are set up by statute and in every single solitary case, the duties of the officers specified by the statute so that the man who has the office knows what his power and duties are.
This man was appointing for the county commission and that's all he was.
He was doing the day to day operation taking the money to the bank and every decision that was made was made by the county commissioner, including the one to fire Baer.
Now, under those circumstances there is no law with which I am familiar that would say that a man hired on an employment contract given no sovereignty, given no tenure, having no public powers at all is a public official.
Justice William J. Brennan: How about a policeman?
Mr. Stanley M. Brown: A policeman in my state is a public officer and he's sworn and he is armed and he is given the sovereignty of the state.
Justice William J. Brennan: How about your dog catcher?
Mr. Stanley M. Brown: We don't presently to my knowledge have them as such.
When we had keepers of the pound, they were public officials.
As a matter of fact --
Justice William J. Brennan: As oppose to take a note to everything?
Mr. Stanley M. Brown: Yes.
Justice William J. Brennan: Yes.
Mr. Stanley M. Brown: Yes and -- and as a -- as a matter of fact had to account for the proceeds of the poundage on the operation of the pound.
Justice Byron R. White: How about a secretary of the Office of the County Commissioners?
Mr. Stanley M. Brown: In New Hampshire, the county clerk is the public official, the secretaries are not.
County clerk, register of probate, register of deed, county attorney, county commissioners, superintendent of some of our county firms are and some are not by a special set of statute.
But if they're public officers, we know they're public officers then we know what their duties are because they're specified.
Now, in --
Justice Byron R. White: Their job is created by statute and their duties to drive therein you say they're public officials?
Mr. Stanley M. Brown: I say that the law, the established -- the subtle law is that no one is a public officer unless he is given some of the sovereignty of the community and he is given that.
Justice Byron R. White: How do you -- how do you identify that?
Mr. Stanley M. Brown: Well --
Justice Byron R. White: Hard, isn't it?
Mr. Stanley M. Brown: -- let me -- let me give -- give you the two situations.
In my state, the county is authorized to hire a supervisor of recreational areas.
Now, that is a grant of authority to hire somebody, employ them on employment contract.
There's nothing more said, but when we say to be a county attorney there is then four or five paragraphs giving specifically what his duties or obligation and powers are and --
Justice Byron R. White: So what you say, you don't add anything by talking sovereignty.
If the job is created by statute and the duties are described then you say there's sovereignty given and is by the position?
Mr. Stanley M. Brown: No, there is something else here.
The government must be operated by men, and whether a man is exercising sovereignty in what he's doing, as you are as a member of this Court, and I am not as counsel although I'm an officer of this Court redirect this petition.
It's quite interesting on this type -- on this particular point.
When you are working as the arm of the government and you have duties which you exercise on your independent evaluation of what your duties are rather than taking your directives from someone else who is in that status and having him in position to take the power away from you, give you more, overrule you, there is a difference.
And it's well recognized in the cases.
On the one hand, the officer status can be demonstrated legally, the other can not.
And that's the guideline I -- I suggest if you're going to keep on --
Justice Byron R. White: A policeman takes orders from the Chief of Police.
Mr. Stanley M. Brown: The police officer once he is in office on his beak is his own man and he has a sovereignty of the state.
He is entitled to pull that gun to enforce what he thinks the law is.
The private citizen is not.
He does have that authority and is quite a bit of decided case authority on this particular point.
Justice Abe Fortas: Mr. Brown --
Justice Hugo L. Black: May I ask you a question --
Mr. Stanley M. Brown: Yes sir.
Justice Hugo L. Black: -- of what is a public official going to the state law in order to find out what he is indicating it might be a different character in 50 different states.
It doesn't indicate that you're not going to get the certainty you deserve if there's -- if these constitutional boundaries made to public officials and the protection of the Constitution may be taken away by having 50 defini -- definitions of public officials in 50 different states.
Mr. Stanley M. Brown: Judge Black, we still have 50 separate states and we're still going to have 50 different sets of laws including these.
Now, I don't think this Court --
Justice Hugo L. Black: Well, I'm talking about a constitutional law which is that varied by what the law in the different states.
As a standard, doesn't it indicate that maybe -- maybe the court did not mean to draw the line or harden the first line by use of the label of public official which could be changed -- which should be different in 50 different names in 50 states?
Mr. Stanley M. Brown: Of course Judge Black, you're in better position than I'd know what the Court may have had in mind, but it seems to me sir and I think that make this argument once again, you have two options.
Perhaps you have three and I think perhaps you might espouse the third.
You have a situation of taking the legal concept.
After all, the words were the courts word, public official, and public official to lawyers has the connotation which the general law has developed.
That's what -- that's what I argue, you should stay with the language you adopted.
Now, if you don't do that, you can go all the way and say that every person in public employee, that's one out of every six people in the United States that all of them are public officials including --
Justice Hugo L. Black: You don't have to say they're all public officials.
Mr. Stanley M. Brown: Well, I say --
Justice Hugo L. Black: You could just that -- you could just say that the rule -- the constitutional applies (Voice Overlap).
Mr. Stanley M. Brown: Alright, yes.
And the third position is that you would delineate some in and some out on a factual analysis of what their duties are which is the only other alternative you have, unless this Court can revise the statutes of all of the 50 states which is impossible.
So I think those are the three possibilities and, as I say, I think the trial attorneys and judges and the courts of the states are entitled to have this demarcation on a legal basis rather on the fact.
That's my argument.
So far as New Hampshire is concerned, we already grant this privilege on the entire basis rather than on the limited basis.
Justice Hugo L. Black: I understand your argument has considerable sympathy but try to make it distinct with some degree of certainty that what I was pointing out was that you didn't quite get it --
Mr. Stanley M. Brown: No, I --
Justice Hugo L. Black: -- and at least if you did by what you're saying, it would be 50 different tests in 50 different states.
Mr. Stanley M. Brown: There isn't any question about that at all, and I think actually the cases that we've cited in the briefs on both sides indicated much.
Now, the other point I'd like --
Justice Abe Fortas: Mr. Brown, excuse me sir.
Mr. Stanley M. Brown: Certainly, sir.
Justice Abe Fortas: Does the record here show that the respondent did not take an oath of office?
Mr. Stanley M. Brown: The record here is bereft of any evidence on that point.
Justice Abe Fortas: And does it show whether he was or was not bonded?
Mr. Stanley M. Brown: The record is bereft with any evidence on that point, yes sir.
Justice Abe Fortas: So actually, well is it correct that this issue really was not litigated below?
Mr. Stanley M. Brown: It was absolute -- there's no litigation on it at all.
We were trying the case before Sullivan.
Now, the other -- the other point, if I may for a moment that I'd like to invite to the attention of the Court is this.
In Sullivan and in Garrison, and I think inferentially in the Henry cases, this Court seems to indicate that a privilege, the existence of a privilege as being disposed of in this Court at least, are on a legal basis.
That is that that is something that is decided legally.
I have reviewed the authorities -- the state authorities and I think all of the authorities of this Court on this proposition and I find no support generally for the proposition that it is a legal matter whether or not a particular writing is privileged.
Now, in my state, we have responsible authority going back over the years if that is not the case.
Privilege, lawful occasion are not legal matters as much as they are factual in the ordinary case.
There may be cases where they become legal.
What I'm talking about is this.
The fact that something is published on the Fourth of July does not necessarily prove it as privilege, and if we're right, if you have something more in that concept, it seems to me that this Court should perhaps explain a little bit more for those of us who are trying to protect the rights of litigants in this process.
What is and what is not within that concept.
Now, in New Hampshire, our rule is that a writing must be for a proper purpose done in good faith and based upon a reasonable belief in the truth of what's being written, talking to factual situation rather than the comment.
That is not -- that concept is not the malice concept that is lack of reasonable -- reasonable belief may be some evidence of malice but even in New Hampshire we don't say that they're the equivalent.
But if you're trying a case that you say is a libel and it's a malicious libel, I am the plaintiff and the defendant comes in and he says he has a qualified privilege.
By all of the authorities that I know of except possibly Arizona, the fellow taking the position he has that privilege has the burden of proving his own good faith, a justifiable purpose of the writing and that what he wrote in the factual area was based upon at least some investigation sufficient to support a reasonable belief in the act of substantial accuracy of what is right.
Now, this Court's handling of the Henry cases seems to indicate that those concepts have no part of libel, if privileges claim.
Now, if that is so, it seems to me where we should be advised specifically that's all.
Now, if the Court is not taking that position, if the Court is content as the Court appeared in its Footnote 20 to be in Sullivan to go along with the state's version, state law version in the field of libel, those elements are still part of these cases.
In New Hampshire, it's our view that whether something is written for a proper purpose or whether it's written maliciously, our questions are fact.
Whether something was written for justifiable purpose or not is a question of fact.
Whether items that are factual, whether they were based upon reasonable belief in what they were written or whether they're not are questions of fact.
We don't -- we don't say in my state that those questions are to be determined as a matter of law by some judge.
If this Court is going to that extent, I think it should be said plainly.
Now, this I think completes the circle back to the (Inaudible) trial where the quarrel with the government was that the government insisted it decided what law is libel.
Justice Hugo L. Black: May I ask you, does the New Hampshire have constitutional provision which has many states have or did have, or did New Hampshire ever have that provision that the jury being the judge of both the law in the practical libel cases?
Mr. Stanley M. Brown: No, I know -- I know the rule of which Your Honor makes reference.
We never did have it and we've always charged the jury.
As a matter of fact the charge in this case is pretty much typical of the way that the trial level that we handle libel cases.
And it's printed as an appendix of my brother's brief both the Supreme Court decision and the charge itself.
No, we never went that far Judge Black, but it's curious to me that in attempting to evolve the present concept.
This Court have almost I think announced a rule where the Court is going to decide as a matter of law that privilege does exist.
Now, the other side of that coin, if you decide as a matter of law that privilege does exist, it's also capable of legal determination that the privilege does not exist and that therefore there was a libel.
Now, that is the concept that causes this Court was enunciating and applying in the Sander case.
And the Sander case freed the press in this country by turning these factual issues and the factual issues are what are the intention, the purpose, the good faith, the malice or the non-malice in this -- in this type of case turn that or as a function for the jury.
Now, we've been over the years quite proud, of our handling of -- of this type of thing in that manner.
I think it's unfortunate that one area of the country today is exhibiting uncontrolled actions in this field.
By -- I hesitate to think that the rest of us in other areas of the country must loose the rather salutary function of the jury in this type of case out of deference to another situation its not of our making.
And it does seem to me that the Court shouldn't reestablish as a part of the constitutional concept that lawful occasion does connotate a publication in good faith for a justifiable purpose based upon either reasonable investigation of the factual information or at least the reasonable belief in substantial accuracy of what is being suggested.
Now, the other items in my -- in our case, I am content to leave on the brief unless there would have other questions.
Chief Justice Earl Warren: Well, Mr. Brown, would you tell us briefly just what the duties of this man were?
I don't think we -- or at least I don't have them definitely in mind.
Mr. Stanley M. Brown: Well, if it please the Court, The Belknap Recreational Area was a side of a mountain in Gilford just outside of the City of Laconia or on the shores of Winnipesaukee.
Chief Justice Earl Warren: How large in area is it?
Mr. Stanley M. Brown: It's what some 200 or 300 acres now I guess -- about 300 acres.
Chief Justice Earl Warren: 300.
Mr. Stanley M. Brown: And in the WPA days, they sent unemployed people up there to chop wood and in the process of chopping wood, decided to do another stunt at the same time and that was to clear some ski trails which they did.
They also built a large recreational hall and as a result of some good planning by one of these county commissioners incidentally, testified in this case, Joe Smith.
They developed a year-round recreational area where they have arts and crafts in the summer, ski area in the winter.
They ran national motorcycle, competitive racing, as a summer event and other special events, largely recreational but some community activities as well.
We're going on within this physical plan.
Now, depending upon what was going on, Mr. Baer was actually the on-the-spot man in charge.
If he had six ski tolls operating twice a day, he would go around and collect the cash from them and give the tickets out.
He controlled the tickets, serialized tickets to control revenues that type of things.
He took the money to the bank and every week, he would sit down with the county commissioners to go over bills and okay them and if he said okay and the commissioners said okay, the bills get paid.
And that -- that essentially was his job.
He also had a ski advisory committee that advised him as to future development and he would take their suggestion to the commissioners and attempt to persuade the commissioners to adopt those of the recommendations to which he felt were things within reach.
Justice Byron R. White: Well, there was in day to day scenario of the area.
Justice Byron R. White: He is personally in charge of the ski patrol and the lifts?
Mr. Stanley M. Brown: Yes, that's right.
Justice Byron R. White: And he did the hiring and firing of --
Mr. Stanley M. Brown: Yes, he only --
Justice Byron R. White: -- the ski patrol and the lift operators?
Mr. Stanley M. Brown: He only had as a permanent payroll perhaps three to five people.
His -- he couldn't -- he couldn't hire people at the dollar-and-a-half an hour --
Justice Byron R. White: That may be so a permanent payroll but how about in the winter?
Mr. Stanley M. Brown: Then on weekend, for example, he would have to pick up temporary help --
Justice Byron R. White: So he hired those people and he fired them.
Mr. Stanley M. Brown: Well, yes and no.
He could not hire anybody without the prior approval of the commissioners nor could he fire without -- without their having a right to reinstate the man.
But he was the on-the-spot -- he was straw boss put it that way with apparent authority but no actual authority either in fact, in law or under his contract.
And the contract is -- the statement and parts of that contract are printed in both of the briefs and the factual situation is briefed in --
Justice Byron R. White: Did he make the decision as to when the -- in the winter for example to close down the area or open it up or not?
Mr. Stanley M. Brown: I think that during the period that he was in charge of the winter operation that was his job.
The difficulty would end --
Justice Byron R. White: If there were some slight danger, was it his decision to close it down and he didn't have to go to the county commissioners for that?
Mr. Stanley M. Brown: It's hard to answer the questions of that type, Judge White, when they're not in the record and when Joe Smith was one of those commissioners, because Joe Smith would be up there everyday too.
And whether Joe Smith was agreeing with Fritzy Baer or Fritzy Baer was agreeing with Joe Smith, I think would determine -- be determined by which one you asked and you might get two different answers.
Chief Justice Earl Warren: Who chose the concessionaires or who chose the --
Mr. Stanley M. Brown: The commission.
Chief Justice Earl Warren: -- upon the concessionaires?
Mr. Stanley M. Brown: The house county commissioners.
Chief Justice Earl Warren: The county commissioners.
Mr. Stanley M. Brown: That's correct, and as a matter of fact during his tenure there were no concessionaires at all.
They were all -- all of the operations were directly operated under his -- under his direct supervision.
As a matter of fact, he did a -- the record will indicate, he did a pretty good job for the county.
He picked the income up from an annual of about $50,000 to more than $200,000 without having any real moneys available to expand.
This was just taking the money and hug the money and putting it back in and building up.
Justice Abe Fortas: Mr. Brown, are there any similar recreational areas in New Hampshire which are operated by a company or an independent contractor on lease or other arrangement of the state?
Mr. Stanley M. Brown: The situation in New Hampshire Judge Fortas is that the -- the State of New Hampshire runs Cannon Mountain, Sunapee Mountain areas.
We have privately -- completely privately operated areas such as Mittersill, Jackson, Wildcat.
This particular installation at Gilford is the only county operated.
We have state operation, private operation and the one county operation.
Incidentally, I think you inquired earlier as to salary when Fritzy started this job for six hours a day -- six days a week, eight hours a day.
He took the job on at $6500 and over a ten-year period, his salary was increased from that to eight from various stages.
Justice William J. Brennan: Mr. Brown, may I ask you a question I asked Mr. Nighswander?
The -- the Supreme Court considered this case in the light of New York Times --
Mr. Stanley M. Brown: Yes.
Justice William J. Brennan: -- in Sullivan.
How are we to read their treatment of the public officials?
Mr. Stanley M. Brown: As I recall, Judge Brennan, neither my brother nor myself briefed nor did we argue this point in that court.
And to be perfectly frank, the reason was that situations have been completely reversed as of the litiga -- the argument was even completely reversed as a result of that.
When we were trying this thing below, my brother was taking the position that Fritzy Baer had nothing at all to do with this area at all that everything was being done by the county commissioners and that under his client, Rosenblatt was writing about, was about the county commissioners not Baer, you see?
So his position was that Baer was not a county official until -- until Times and Sullivan came in, and then it became very apparent that he was.
Now, under those circumstances, brother Nighswander wasn't trying to prove he was a county official.
I'm the one who put the contract.
So then I wasn't trying to prove that he was not, I was trying to demonstrate what his actual function was.
And the record, the factual record, the evidence record is that the only thing that this man did by himself, or he didn't have somebody looking over his shoulder was take the money at the bank.
Justice William J. Brennan: Well but --
Mr. Stanley M. Brown: We didn't argue --
Justice William J. Brennan: I'm a little puzzled about the opinion of your Supreme Court.
Mr. Stanley M. Brown: I think --
Justice William J. Brennan: It may be rather I thought one of two ways.
Either that he was not a public official and therefore the judgment would be sustained.
Or that if he was as Mr. Nighswander has suggested that the principles laid down in Times had been satisfied at the trial.
Mr. Stanley M. Brown: Well, may I say this Judge Brennan, I think that the -- my -- my own concept, I argued the case in that court too.
I think the situation is this.
Having in mind that it was virtually admitted by the defendant below that the jury had found malice and the court satisfying itself that malice was in fact in this record and I think it is.
I think with that situation, the court being satisfied on it, that it doesn't make any difference.
And I think at that --
Justice William J. Brennan: Wasn't what to what?
Mr. Stanley M. Brown: I think that that's a sensible explanation.
Chief Justice Earl Warren: At what point of the case did this change of posture come about?
Mr. Stanley M. Brown: As I recall it, my brother Nighswander's brief was in the process of being put together when Times and Sullivan became available and it provoked an entirely new section of your brief, did it not?
Chief Justice Earl Warren: Before that.
Mr. Stanley M. Brown: Little before -- it was during the briefing for the New Hampshire Supreme Court.
Chief Justice Earl Warren: It was before the -- it came at the time you went before the New Hampshire Supreme Court?
Mr. Stanley M. Brown: Yes, yes.
Chief Justice Earl Warren: Not before?
Mr. Stanley M. Brown: That's correct.
Justice William O. Douglas: Was New York Times decided between your trial and the appeal?
Mr. Stanley M. Brown: Yes, a matter of fact I think the reserved case.
Our superior court record will indicate we were citing the Sullivan case in the state court for one proposition in the charge, so that we knew that it had gone through the state court and not yet come here, and then --
Justice Hugo L. Black: How did this -- how did this became necessary?
Didn't it become essential if you look at it in a view?
Mr. Stanley M. Brown: Yes.
Justice Hugo L. Black: Under the old libel law that were built -- that were made either by the state legislature or by the state courts formulated what was libel that ended it.
There was no federal question until the time came when this Court held that the First Amendment was made applicable to the state that raised a new issue.
What you -- what you're -- what I understand you all have done is to try a case on the basis of the old libel law where little effect was given to the First Amendment because until it was held applicable to the states there's no reason to it, he didn't raise a federal question.
Mr. Stanley M. Brown: Well, I don't think that's quite so, Judge Black, because we have a Constitution in the State of New Hampshire which is just as broad First Amendment as the federal constitution.
As you know, ours predated the federal constitution.
We also constitutionally protect the man in his remedy for injury to his character in my state.
So that we have both sides of it on the constitutional basis and had had it for years.
I think --
Justice Hugo L. Black: That wouldn't affect our interpretation of the federal provision of the First Amendment.
Mr. Stanley M. Brown: No.
Justice Hugo L. Black: And what you have now is a situation where it's been held applicable to the state as whatever meaning it has under the federal constitution and that's created in your situation.
Mr. Stanley M. Brown: Our Chagnon case was here on a petition for certiorari and certiorari was denied in ‘61.
In other words, this Court did review the New Hampshire law in this field in ‘61.
We then tried this case assuming that our state law having been reviewed here was at least safe enough to use the second time around.
And then after the trial event --
Justice Hugo L. Black: You say it was reviewed here?
Mr. Stanley M. Brown: Yes, Chagnon.
Oh yes and certiorari was denied.
Justice Hugo L. Black: I understand but that's not a review.
Mr. Stanley M. Brown: I used this -- I used the wrong expression sir.
But I think that having in mind, Chagnon was here on a petition which was turned down, and then Chagnon is cited and as Times case itself as an example of the similar state rule that our situation in New Hampshire is not remarkably different than the developing concept that's being enunciated here.
As a matter of fact, I think we have broader coverage right now as we apply the qualified privilege much more broadly than this Court has yet announced it is going to hear.
We don't do it quite the same way procedure and that's all.
Chief Justice Earl Warren: Very well.