ASHTON v. KENTUCKY

Print this transcript Transcript: 

Argument of Ephraim London

Chief Justice Earl Warren: Ashton, Petitioner, versus State of Kentucky.

Mr. London.

Mr. Ephraim London: Mr. Chief Justice and Associate Justices.

Steve Ashton was convicted of criminal libel in Kentucky in 1963, November 1963.

It was a common law crime.

The appeal, the original conviction which was in the Circuit Court Hazard, he appealed it to the highest court of the state, the Kentucky Court of Appeals and that court affirmed the conviction with three of the southern judges dissenting.

The sentence which was imposed by the jury was six months in jail and a fine of $3000.

At the time Ashton was convicted, he was a college student at (Inaudible).

He had come to Hazard, Kentucky as a result of hearing some television scenes and television programs in which the plight of some striking miners were shown.

Hazard, Kentucky and Perry County was the center of a mining area where there had been a prolonged labor dispute.

Some of the miners in that area were on strike and some were not.

Now, Ashton who'd come down as the representative of a student committee, he was bringing food and clothing down for the strikingminers.

And while there, he wrote a report on what was happening, and it was to be sent I believe mostly to his friends and colleagues and perhaps to some others who would be willing to help the miners.

This report which was called “Notes on a Mountain Strike” --

Chief Justice Earl Warren: Is it written for distribution in the same community or back home?

Mr. Ephraim London: Back home Your Honor.

Chief Justice Earl Warren: Back home.

Mr. Ephraim London: It was mimeographed and I believe it was to be sent primarily back home.

And I think that the purpose was to secure funds.

I think there is some evidence in the record although it is not clear that this was the purpose of it.

Justice Potter Stewart: It was distributed though in the community (Voice Overlap) --

Mr. Ephraim London: No, Your Honor, I (Voice Overlap) --

Justice Potter Stewart: At least to an extent (Voice Overlap) --

Mr. Ephraim London: -- it's our position that it was not distributed at all.

Justice Potter Stewart: Well, it was -- some policemen got a hold of it, didn't they?

Mr. Ephraim London: Yes, Your Honor.

Some policemen did get hold of it.

What they did with it, we don’t know but we don't believe that (Voice Overlap) --

Justice Potter Stewart: Then as a secret document, it was available in the community, was it not?

Mr. Ephraim London: It never got to that point.

It would have been available I suppose but Ashton never got to the point of distributing these pamphlets.

Justice Potter Stewart: Well, they --

Mr. Ephraim London: While in the person --

Justice Potter Stewart: But they were -- but they were distributed at least to some people in the community, they're willingly or unwillingly on it (Voice Overlap) --

Mr. Ephraim London: To two or three policemen, yes, Your Honor.

Justice Potter Stewart: Yes.

Mr. Ephraim London: That's correct.

We shall raise the question of whether that was in fact a publication.

I like to come to that a little bit later if I may.

But there were three people supposedly libeled in this report.

One was Sam Luttrell, Police Chief of Hazard, another was Charles Combs, the High Sheriff of Perry County, and the third was Mrs. Nolan, the co-publisher of the local newspaper, the Hazard Herald.

Now, the things that were written about the High Sheriff and the Police Chief were certainly unflattering.

But for the most part, they were completely true.

Now, for example Ashton wrote that the Sheriff had been indicted for manslaughter while he was still acting as sheriff and that was perfectly true.

And he said that the Sheriff although he was supposed to be impartial in this dispute between the striking and non-striking miners, was actually the owner and operator of the mine and that was perfectly true.

And he wrote that the Sheriff had beaten up a boy in the Sheriff's jail so badly that the boy lost the sight of one eye and that the boy was tear-gassed while in jail, that the Sheriff had to pay a judgment to the boy of $5000.

Now, it was true that the boy was beaten up.

It was true that he had lost the sight of one eye and it was true he recovered a judgment against the Sheriff of $5000.

But it appears the Sheriff wasn't there at the time.

And that the beating was probably administered by some subordinates of the Sheriff.

Ashton said that the Sheriff probably bought off the jury that rendered the verdict.

That was not true.

And at least it wasn't true that he bought off the jury.

The word probably was put in but certainly the inference of that statement was false.

Now, the statements he made about the Police Chief were also unpleasant and also for the most part true.

He said that the Police Chief had a policeman in his staff who sympathized with the striking miners and that man had had his life threatened.

Well, not only was that true but the one who passed on the threat was the Police Chief himself.

He said that -- Ashton said that the Police Chief was holding down a private job as a guard and that that was against the law.

But that was untrue.

The Police Chief wasn't holding down an outside job.

He certainly wasn't violating the law in that respect.

Now, the statements made about Mrs. Nolan didn't impute my thinking any serious wrong and in any event I believe they were true but I'd like to speak of them later if there is sufficient time.

Ashton was tried twice, first jury disagreed and the second jury by a 12 -- by a 10 to 2 verdict, found him guilty.

And as I said before it was the jury that imposed the sentence.

Chief Justice Earl Warren: Was he -- was he tried for all of these articles in one trial?

Mr. Ephraim London: There was one trial.

The indictment doesn't specify separate counts.

It merely says that he was guilty of having libeled the three named persons.

Chief Justice Earl Warren: Were those special verdicts?

Mr. Ephraim London: No special verdict.

It was a general verdict to guilty by the jury.

And there was no indication of whether they find him guilty of libeling the Sheriff or the Police Chief or Mrs. Nolan.

That wasn't separately stated or made clear.

And point of fact there had been in the -- named in the indictment a Mr. Nolan who was the other owner of the Hazard Herald and the indictment as against him was dismissed for lack of proof.

Now, the criminal law -- criminal libel law of Kentucky as it's construed in this case by Kentucky's highest court, we submit is unconstitutional.

Now, the entire law we state, not as it's applied in this case but the law itself is we think clearly unconstitutional because it makes writing a crime when that writing concededly doesn't create any serious danger to the community and indeed even to the individuals who maybe libeled.

It punishes as a crime, speech that doesn't in anyway affect the public or the community or the state.

Now, according to the opinion of the Kentucky Court of Appeals, any private per se libeled which is made with knowledge of the fact that the statements are untrue is a crime.

In Kentucky any per se libel.

And it is conceded by the Attorney General that the criminal law is designed primarily to redress purely private injury.

If I can read from the Attorney General's brief, just a moment at page 16, he states that it's admitted that some defamatory publications at it's lowest which could be punished as a crime would not be serious in impact as others.

And then he goes on to say, “It is admitted that the Kentucky common law offense is designed to protect individual reputation.

And a similar statement is made on page 3 of his brief.

Justice William J. Brennan: (Inaudible)

Mr. Ephraim London: Yes, Your Honor.

Justice William J. Brennan: I just want to ask if the crime (Inaudible), I'm looking at page 125 of the record, would this (Inaudible) tried by the trial court (Inaudible) --

Mr. Ephraim London: Yes, Your Honor.

That is a -- that is part of it.

It begins --

Justice William J. Brennan: That's a part of it.

Mr. Ephraim London: Yes, it begins at page 121 I believe.

Justice William J. Brennan: Well, I'm just looking -- this is the court's (Inaudible) of the jury that criminal libel is defined (Inaudible) as any writing (Inaudible) public model of which any act which went on in this argument.

Mr. Ephraim London: Yes, Your Honor.

Justice William J. Brennan: Is that the whole definition?

Mr. Ephraim London: That is the whole of the definition.

The Court says that that was cured by some statements at other points of the charge in which he says that this stuff has to be, these statements have to be false and that the petitioner Ashton would have to know that they were false.

I should like to get into that question later but what I'm talking about now is the Kentucky Court of Appeals' latest description of this crime.

In its opinion in this case, the Kentucky Court of Appeals said, "We must disregard this kind of statement that was made by the trial judge that this really isn't the law anymore, it isn't even constitutional.

But there were other elements in this charge which were perfectly correct and we say that the law now is that the private defamation can be punished."

Now, the law of civil libel or libels per se in Kentucky are very, very broad indeed if for example I -- I know Mr. Matthews, the Attorney General of Kentucky is a -- or Assistant Attorney General is an open and honest and a candid man.

But if I were to say he is a hypocrite knowing that to be untrue, that is a criminal libel in Kentucky also a civil libel.

If I were to say assuming about his ancestors, it was unpleasant, even if they were dead, two or three or four generations, I'm guilty of a criminal libel in Kentucky.

Justice Byron R. White: Mr. London, do you feel that Kentucky has no constitutional power to make statements like that a crime under Garrison?

Mr. Ephraim London: I think it has not, Your Honor.

I think that the law is as I understand it, if the doctrine still has any validity that one cannot make any writing or speech or communication criminal unless it presents some serious danger to the community.

And as I understand the Garrison case, I understand it to mean that a libel must somehow seriously disturb the security of the community before it maybe punished as a crime.

Justice William O. Douglas: In my state, a man was convicted for a criminal libel for calling George Washington a rascal.

Mr. Ephraim London: Yes, Your Honor.

And that conviction was some 200 years after George Washington's death.

Justice William O. Douglas: Just about that.

Justice Hugo L. Black: Are there any statutes at all that make libel a crime?

Mr. Ephraim London: In Kentucky?

Justice Hugo L. Black: Yes.

Mr. Ephraim London: No, Your Honor.

I think there's a statute relating to slander but this is a common law offense.

Justice Hugo L. Black: Have there ever been any statutes that made libel a crime?

Mr. Ephraim London: In Kentucky, I believe not, Your Honor.

I believe the first case came about 1888 in which they suddenly punished someone.

Justice Hugo L. Black: That was the court.

Mr. Ephraim London: Yes, Your Honor.

Justice Hugo L. Black: Cong -- the legislative body has never made it a crime.

Mr. Ephraim London: No, Your Honor.

The legislative body never did although I suppose it recognized the existence of this as a common law crime and providing for general punishment under a statute limiting the punishment to a year and $5000 fine.

Justice Potter Stewart: Are there many common law crimes in Kentucky?

Mr. Ephraim London: Yes, Your Honor.

Justice Potter Stewart: Are there?

Mr. Ephraim London: Yes, Your Honor there are.

Justice Potter Stewart: Or like some states where all the criminal law statutory or a good many -- in Kentucky, there they may have (Inaudible) -- with many common law crimes.

Mr. Ephraim London: To my little knowledge of Kentucky law, I think the majority of crimes.

Justice Potter Stewart: -- Yes.

Mr. Ephraim London: -- there are common law crimes.

Justice Potter Stewart: Yes.

Mr. Ephraim London: Now, the Attorney General of Kentucky concedes that very trifling personal abuse can be punished as a crime in Kentucky.

But he says that's not an objection to the law because the jury although it can imprison the man for a year for this trifling insult and can fine him for $5000 may also impose a very small punishment even if a dollar fine then make the punishment of that crime.

Justice Hugo L. Black: Is there any provision in the Kentucky constitution with reference to libel such as it appears in the (Inaudible)

Mr. Ephraim London: Yes, Your Honor.

There's a provision in the constitution which says the truth maybe proved in a libel case because under the common law in England as Your Honor knows, truth was not a defense.

The constitution doesn't indicate that it's a clear and complete defense whether it says it can be proved.

And I believe that the Court in it's clause on this constitutional provision has indicated that it is a complete defense.

I think that certainly in this case there's no question but that the statement has to be false in order to be punishable as a crime.

And the truth is a complete defense.

Justice Hugo L. Black: You mean false in the sense that is to mean invidious or --

Mr. Ephraim London: False in the sense that it is untrue, that it's contrary to fact.

Justice Hugo L. Black: That's all?

Mr. Ephraim London: Yes, Your Honor.

Justice Hugo L. Black: In other words, that's a misstatement of --

Mr. Ephraim London: Misstatement of the facts.

Justice Hugo L. Black: -- of being a fact but it's not actually a fact without regard to the motives or feelings of the person.

Mr. Ephraim London: Yes, Your Honor.

I think it goes even further by the way in including opinion although that's not involved here because I think to say that one is a hypocrite is an opinion rather than a statement of fact although it may also be a fact.

But if I may continue, the question I think suggest itself if every libel per se is known to be false is punishable as a crime, when does the Government decide what cases are going to be punished as a crime and in what cases does the Kentucky Government leave the individual to his -- who has been -- who has been liable to his civil remedy of action for damages.

And the Attorney General suggests an answer in his brief.

He indicates that criminal libel prosecution is appropriate with a person who utters a libel has no funds.

In short, it maybe a crime when a man is penniless that is the libel of it.

But when he has fines with which to respond in damages then the inclination of the Government would be to leave him or leave the man liable to a civil remedy in damages.

Justice Hugo L. Black: Is the law or the opinion said that?

Mr. Ephraim London: No, Your Honor.

This is the Attorney General --

Justice Hugo L. Black: What page is that?

Mr. Ephraim London: May I read at page 20 of his brief.

And they say this is a suggestion.

Unknown Speaker: (Inaudible)

Mr. Ephraim London: He says, “The view that private libel and personal calumny is no longer appropriate for penal control as unsound.

The civil suit for damages may be an adequate threat to deter deliberate or reckless character assassination on the part of responsible publisher of means but it cannot serve the guarantee relief from this positive evil in the case of those who were immune to judgment by virtue of being of insufficient worth.”

Then he goes on, “The threat of remedy immediately and inexpensively available by a criminal prosecution is an effective determine -- deterrent to the commission of such a real harm."

In other words, you know, we can't deter a fellow who has money because -- but we have to worry about the fellow who doesn't have money and who goes around libeling people.

And the only way we can deter him is by this threat of criminal prosecution.

Now, I think making it a crime where a man is penniless and a civil wrong where the man has funds doesn't exactly square with our notions of equal justice to the indigent.

By the way, a similar statement to the one that I just referred is made again at the brief in the introduction where the Attorney General writes -- although the prevention of peace -- of the -- or breach of the peace is no longer a basis for criminality.

Private libel should be subject to penal sanctions under the Kentucky common law in order to deter the commission of harm disturbing the community sense of security such as malicious character assassination by publication of calculated falsehoods by impecunious persons.

That's at page 3 of the brief.

Justice Hugo L. Black: Well, are you reading from that that the Congress that -- and (Inaudible) that their law doesn't cover anybody who's -- except the man who --

Mr. Ephraim London: No, Your Honor.

But the law is designed and the Attorney General has indicated in order to protect the community against this penniless fellow who goes around insulting people.

After all, the judgment against him isn't much good.

And that's why it covers purely private personal abuse and speaking of the rationale of the law and as the Attorney General's concept, its application.

I think there's another answer to the question of when this criminal penalty will be invoked and when they will leave the individual who was libeled to his private remedy of action for damages.

I think the answer is suggested by this case because criminal libel is a rare prosecution in Kentucky as elsewhere in the United States.

But I think that where the person attacked is a government officer with the power to initiate the criminal prosecution, you are very likely to have the law used to punish the personal upfront to him.

I think most of the cases that have come to this Court have been cases where an officer of the law who had the power to initiate criminal prosecution, the one who did it.

I don't think we've had cases in this Court in which a purely personal upfront to a private individual has been prosecuted as a criminal libel and then brought up.

Justice John M. Harlan: Was this case tried before New York Times and Garrison?

Mr. Ephraim London: The case was tried before New York Times against Garrison but the appeal was heard after New York Times against Garrison and one sees the references to that case in the Court's opinion, the Kentucky Court of Appeals.

I think that this Court's opinion in Times against Ga -- Sullivan and in Garrison against Cox was the reason for the -- for a change in the law of Kentucky that was made by the Kentucky Court of Appeals.

But I shall get to that later I hope.

Now, we do have another related question relating to publication and to the question that was asked before by Mr. Justice Stewart as to whether or not this pamphlet was ever distributed in the community.

Justice Abe Fortas: Mr. London, before you leave the other topic, what do you say to the distinction that -- for which the Kentucky Court refers between libel of a public official and libel of a private person with respect to the necessity to show public damage or threat to the public peace.

Mr. Ephraim London: Well, they -- I don't remember anything that the Court says nece -- with respect to the showing of public damage.

I think that there's a reference to a Browning case in which they had -- I think it was Browning where there had been the libeling of a public official that or least one of the early cases, there was a libeling of a public official.

And the Court as I said in its opinion has indicated that the rule of the Sullivan case now applies in Kentucky namely that malice has to be shown, that's another question that I'd like to get to in just a moment.

But returning to the question of publication, what happened here is that while Ashton was still gathering the material together and stapling it in a private room next to a tavern, the policeman who was making a routine check of the tavern came in and he saw some -- these pamphlets on the table and asked whether he could see one and Ashton said, “Certainly.”

And as the policeman reached for one Ashton put his hand under the table and handed him a different topic.

The policeman brought this back to the police station and showed it to the Police Chief and another policeman was dispatched to pick up a copy of the pamphlet the following morning.

The following morning, the second policeman came and he asked for a copy and received one in exactly the same manner.

I believe that the first policeman was accompanied by another so that possibly three policemen have received copies of the pamphlet.

Now, this is the only distribution, the only proof of distribution of this pamphlet that we have in the record.

The Attorney General says that it -- and it indicates the copies would have been delivered to anybody who asked for them.

And that maybe true, that maybe a permissible inference to draw or it seems to me that when a policeman asks for something he's not to be denied as the public ordinary citizen is.

But in any event, this is the total distribution.

Now, I believe to extend the doctrine of the -- the implicit doctrine of the Garrison against Louisiana case in which it said that there must be some harm to the community, some threat upon to the community or to it's feeling of security that where you have so special, so private, so limited a distribution, the community is not affected, certainly not by the distribution by the accused himself, by Ashton.

I think we must carry that constitutional doctrine to saying not only must the making of the statement, that is the writing of the statement be with knowledge of falsity or being malicious but that the publication must be also and that the publication must be in such ways to affect the community.

And it seems to me the delivery under these circumstances, under compulsion, ritual compulsion although there had been no order to deliver but merely request --

Justice John M. Harlan: Where was the mimeographing done in the (Voice Overlap) --

Mr. Ephraim London: Mimeographing was done somewhere in Hazard, Kentucky possibly in that same room where the pamphlets were being gathered together and stapled at the time.

The policeman came in and found.

I should add that the day after the second policeman came in and received a copy, a warrant was sworn out by the Sheriff and by the Police Chief and Mrs. Nolan, and they went up and confiscated all the copies of the pamphlet.

So that if there was any distribution after that time, it was done by the police itself certainly not the voluntary act of Ashton that there was any distribution prior to that time, we don't know of it and certainly there was no proof in the record.

Justice John M. Harlan: Does the record show how many copies of the pamphlet were mimeographed?

Mr. Ephraim London: It doesn't but there are two statements.

One, to the effect that there were about 60 pamphlets picked up and another completely unrelated statements saying that there were some 300 copies.

I would gather it was somewhere between 60 and 300 copies that were picked up.

Now, this case also presents constitutional issue relating to the proof of matters that's required.

The nature of the proof required where a person's libel to public officials, certainly we haven't any question that two of these officials, two of the persons libeled, the High Sheriff and a Police Chief were public officials.

And although it may not be necessary, the libels related to the performance of their duties unto their work as officials.

There was no extrinsic evidence at all that Ashton knew that the material was false.

No extrinsic evidence that he didn't care whether or not it was false.

No extrinsic evidence on the question of malice at all except that all three of the person's libeled said, “Ashton never came and asked me whether the statements were true because if he had I'd have told him that they weren't true.”

I think this is an indication utmost of negligence, of a failure to check one source as the Attorney General attacks Ashton for believing the strikers.

He says “He's an intelligent fellow and educated.

He should have checked.”

Maybe he should have.

Maybe a good newspaperman or a good reporter would've checked the primary sources.

But he didn't.

This is not an indication that he knew or that he didn't care whether the statements were false.

Justice John M. Harlan: Did the jury charges to the element of recklessness as opposed to actual malice?

Mr. Ephraim London: The jury was merely told that they had to find malice.

I think that charge is on page 126 and the Court said, “Malice is an essential element of this defense -- of this offense.

It was the duty of the Commonwealth to prove that the defendant maliciously,” I think there he meant with ill will, maliciously published the notes in the Mountain Strike and unless they so believed they are bound to define the defendant not guilty elsewhere in the charge.

He does say that this material should be false and known to be false although he doesn't cons -- he doesn't say that that is libel -- that is malice but he describes it as being part of the libel itself.

This Court has not yet passed on the quantum of proof or the nature of the -- oh, I'm sorry.

Chief Justice Earl Warren: Finish your sentence.

Finish your sentence Mister --

Mr. Ephraim London: On the quantum of proof or the nature of proof that's required by the constitution in a criminal prosecution for libel.

But I believe it's implicit in the decisions of the Court that there must be affirmative extrinsic evidence.

Justice William J. Brennan: And not -- in other words, (Inaudible) maybe inferred during -- in the contents of the publication itself.

Mr. Ephraim London: Yes, Your Honor.

Justice William J. Brennan: Is that --

Mr. Ephraim London: That is precisely true and if --

Justice William J. Brennan: If they did -- actually nothing other than the publication itself upon which the Court of Appeals rests its conclusion that there was a sufficient (Inaudible) upon which knowledge or recklessness is derived?

Mr. Ephraim London: Exactly, Your Honor.

The Court of Appeal's opinion on that question, it's fairly clear.

And if I may add just one more sentence, the Attorney General says “This is an impossible thing to prove.”

I would answer negatively, knowledge of falsity I would say that that's proved in every perjury prosecution I've ever heard off.

It is an essential element.

Chief Justice Earl Warren: Mr. Browning.

Argument of John B. Browning

Mr. John B. Browning: Mr. Chief Justice and Associate Justices.

Steve Ashton, the petitioner in this case came to Perry County, Kentucky at a time when there was a serious labor versus capital dispute with considerable violence involved, shootings and dynamiting and bitter feelings in the community.

He came of course for a most commendable purpose to bring food and clothing to those who were in need.

And in this, he could not be found at fault.

But while he was there, he determined to cast his luck entirely with the striking miners who were not authorized in their strike by the United Mine Workers and they were operating a wildcat strike.

And he cast his luck with them and decided to write a pamphlet which favored their side of the controversy and maligned and defamed the officials who were in charge of enforcing the law in that community.

Had he merely presented the truth in his pamphlet, it would have been of value from a social standpoint and would've been fully -- certainly within the protection of the guarantee in the First Amendment of the Federal Constitution.

However, he decided that in order to accomplish the end which he thought was beneficial, he would resort to defamatory and false and reckless -- recklessly false statements regarding these officials that they were liable as per se there can be no doubt.

He charged the Chief of Police of this city that he himself had violated the law by taking a private job on the side.

This was admittedly false and was shown to be so.

He imputed in his pamphlet to this chief law enforcement officer of the city that he was involved himself in a plot to assassinate the only pro-strike policeman on this force.

It was shown that in fact the Chief of Police was not involved in such a plot personally, if there was such a plot.

He said of the Sheriff that the Sheriff had been fined for intentionally beating and blinding a boy who was helplessly handcuffed in his jail.

The facts of the matter were the Sheriff was not even present.

He was not fined.

He did not intentionally beat this boy.

Now, it is said that there was substantial proof to this because in fact the Sheriff had subsequently been held liable in damages in a civil action for an instant regarding this boy that took place in his jail.

This is a far cry from the statement that the Sheriff personally intentionally beat this helpless boy.

One maybe held liable under bonds for the acts of his deputies.

But to say that it's a different proposition and to say that the principle himself personally and intentionally committed this.

He said to the Sheriff that he had bought off the jury.

This was not true.

He said that the Sheriff -- that he was fighting the pickets and the Sheriff denied this.

These statements concerning the two public officials charged them as being felons and violators of the law and unworthy and degraded persons.

The statements about the newspaper, co-owner and publisher of the Hazard Herald imputed to her breach of a public trust and that she was suppose to have received from the public as a result of a television show, contributions to be devoted solely to the benefit of these pickets involved in the wildcat strike in the coal field.

As a matter of fact there were two television programs, and the first one on which this fund was developed and on which it began was concerned with a Miller family who were farmers and the general theory of the program was “Help the Needy People.”

The contributions coming in were not earmarked for the exclusive benefit of the pickets but were to be used for the needy persons and they were so used under the directions of the Government -- of the Governor of the State of Kentucky.

All of these funds and clothing which he received were distributed to needy persons throughout the community.

It was said of Mrs. Nolan that she was vehemently against labor in this controversy.

She not only denied this but stated that her own father had been an underground miner in the coal fields that her uncle had been killed working in the coal field that she was sympathetic with labor that her own husband was a member of the Typographical Typesetters Union.

She stated that her newspaper had tried to promote peace and harmony in this community in this bitter struggle.

She stated that she had tried to play down violence and tried to remove the threat of violence in the community.

These statements about Mrs. Nolan were so -- shown to be substantially false.

It was stated that none of the food and clothing went to the pickets when Mrs. Nolan stated that out of 14 truckloads of food and clothing, two truckloads at the outset went to the pickets.

Now, these matters concerned the reputation of these persons and if we take the position that reputation of individuals is no longer of any importance then certainly this conviction cannot stand but I submit that it is a vital thing to all of us.

The crimes of extortion and blackmail frequently depend on a person's concern for his own reputation.

And he would go to great lengths to protect that.

Justice Hugo L. Black: May I ask you, what is the population of that county?

Mr. John B. Browning: Of the Perry County as a whole?

Justice Hugo L. Black: Yes.

Mr. John B. Browning: I think it's about 39,000 something in that vicinity.

Justice Hugo L. Black: What's the population of the town in which the people --

Mr. John B. Browning: Hazard, I believe, it was between 6000 to 9000.

Justice Hugo L. Black: Is that where (Inaudible) 6000 to 9000.

Mr. John B. Browning: Between that Your Honor.

Justice Hugo L. Black: That's where the Sheriff lives?

Mr. John B. Browning: He live in Hazard, I think.

Justice Hugo L. Black: Did the record show whether he's run for office since that occurrence.

Mr. John B. Browning: I believe that his wife run for office.

Since that time I don't think that the Sheriff has these, or he can't succeed himself of course.

Chief Justice Earl Warren: Yes.

I didn't understand you.

Mr. John B. Browning: He cannot succeed himself, Your Honor.

Chief Justice Earl Warren: Oh, you say his wife ran for this place.

Mr. John B. Browning: Yes sir.

Chief Justice Earl Warren: Elected?

Mr. John B. Browning: I do not know.

Chief Justice Earl Warren: I don't know if it's material or not.

Mr. John B. Browning: The Sheriff did testify that he thought that he still had the support of the rich and poor in the county.

But he did feel that this matter had hurt him because people only know what they read and they wonder about it and they have been asking him questions.

And furthermore outside of the county where he was not known where this material was to be sent, he felt that it damaged him a great deal.

But it seems to me that if we're concerned with libel per se, the question is whether the words by themselves would damage a person's reputation and we cannot in every case get into the question of what harm has actually resulted.

This libel is similar to obscene literature in that we have here a certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problems.

Now, if I might at this point discuss the history of the common law offense, Kentucky takes it's common law from Virginia by a constitutional provision to the effect that all laws enforced in Virginia on June the 1st, 9th -- 1792 when Kentucky became a state or enforcing Kentucky unless repugnant to the constitution or otherwise changed by statute.

When Kentucky became a state in 1792, our constitution changed the old English law of criminal libel by incorporating one provision of facts of libel act to the effect that the jury shall decide both the law and the facts and that means that they shall decide whether the matter is libelous.

Also our Constitution provided in 1792 that the truth of the matter maybe given in evidence where it concerns public officials and matters of public importance.

Chief Justice Earl Warren: May I ask you this question?

I noticed that the indictment is very general.

It merely says on or about the 22nd day of March 1963 in Perry County, Kentucky, the above named defendant committed the offense of criminal libel by punishing -- publishing a false and malicious publication which tends to degrade or injure Sam L. Luttrell, Charles E. Combs, Mr. and Mrs. W.P. Nolan against the peace and dignity of the Commonwealth of Kentucky.

I understand that the jury found 10 to 2 against him.

How do we know that three of the jurors didn't believe that Mr. Luttrell was libeled but they libeled -- but they did believe that Mrs. Nolan was libeled and how do we know that three more of them didn't believe that she wasn't libeled that -- but that Mr. Luttrell was and how do we know that the rest of them either decided the case on whether or not Mr. Combs was libeled but not the others.

Mr. John B. Browning: Mr. Chief Justice, obviously, I cannot answer that question.

I could only speculate at most as to what was in the minds of these jurors who returned the verdict.

Certainly, the record doesn't revealing it -- reveal it and I have no way of knowing it.

Chief Justice Earl Warren: Well, can we have a verdict if that's a -- this is inconclusive as that.

Mr. John B. Browning: The Court of Appeals had that question presented to it and decided that a verdict agreed upon by the petitioner in this case to be made on a majority vote could be sustained.

I did not think --

Chief Justice Earl Warren: But I know but they all have, do they not in your state all have to agree upon the same thing in others?

In other words, wouldn't they all have to agree that either Mrs. Nolan was libeled or Mr. Combs was libeled or Mr. Luttrell was libeled?

They couldn't stood up and say, “Well, three of the -- said one of them was libeled, three are the same, the other one wasn't.

Three others think -- the other -- the third one was libeled but not have a meeting of minds of the jury in order to put him in jail.

Mr. John B. Browning: I think it is true Mr. Chief Justice that they could not have split up in that fashion but I don't believe that they did that.

I think --

Chief Justice Earl Warren: How'd they know?

Mr. John B. Browning: They were required by the instructions to find these matters were libelous and false and known to be false as to all three of these parties.

Chief Justice Earl Warren: Were they told that they -- if they would have to agree, all of them on -- that each of them were libeled.

Mr. John B. Browning: Yes, I think the instructions in --

Chief Justice Earl Warren: Where had --

Mr. John B. Browning: Were asked to all three of them.

Chief Justice Earl Warren: Yes.

Well, where -- where is that instruction?

Mr. John B. Browning: If the jury believed in the evidence, this is on page 122.

Chief Justice Earl Warren: 122 of the record.

Mr. John B. Browning: It's the principle instruction in the case.

If the jury believed in the evidence to the exclusion of a reasonable doubt that the ex -- accused, Steve Ashton in unlawfully published in a pamphlet certain libelous and defamatory matter, the following libelous and defamatory matter concerning Luttrell and also concerning Charles Combs and concerning Nolan wherein they were presented to the public as a felon, a violator of the law and is being degraded non-worthy individuals, were held of to ridicule and contempt.

And that these words in said articles were false and libelous and were so known to be false and libelous when published by the defendant and were written by him for the purpose of injuring all three of these parties.

It seems to me that all three of them are covered in the instruction.

Justice Hugo L. Black: What page was that?

Chief Justice Earl Warren: 122.

Mr. John B. Browning: Trans for the instruction begins, Mr. Chief Justice, on page 122 of the record.

Chief Justice Earl Warren: Yes.

Mr. John B. Browning: And extends to page 125.

Justice Potter Stewart: On the -- both the indictment and the instructions talked about libel of Sam Luttrell, Charles E.Combs and Mrs. Nolan, it doesn't say “or”?

Mr. John B. Browning: It's not in the alternative.

Justice Potter Stewart: No.

Mr. John B. Browning: I think the requirement is the jury must find that all three of them --

Justice Potter Stewart: All three are libeled.

Mr. John B. Browning: All three of them (Voice Overlap) --

Justice Potter Stewart: The indictment says that and that's what the instruction is saying, is that correct?

Mr. John B. Browning: That's correct.

Justice Potter Stewart: So there's a -- you take words of their face value it means to the jury, these 10 members of the jury who convicted this man found that he libeled all three of them, is that right?

Mr. John B. Browning: That's what they were required to believe.

Justice Potter Stewart: That's -- they were required to find.

Mr. John B. Browning: Yes.

Justice Hugo L. Black: Have you -- have your state judges in writing their libel law provided that any part of the damages was ordered to people who've been injuring?

Mr. John B. Browning: They have not.

This is a -- in a criminal case Mr. Chief Justice --

Justice Hugo L. Black: Yes.

Mr. John B. Browning: Oh, Mr. Justice, in a criminal case the fine goes to the Treasury of the Commonwealth.

They -- for and -- no portion of the fine recovered goes to the benefit of the parties injured.

That distinguishes the criminal prosecution from civil.

Does that answer your question Mr. Chief Justice?

Chief Justice Earl Warren: Oh, yes, yes.

You've answered my question.

Thank you.

Mr. John B. Browning: The decisions of the Kentucky Court of Appeals beginning in the year 1888, evidence that the offense at common law and that state consisted of four elements, publication of course, falsity of course and malice and the words must be defamatory per se, that is in themselves.

They must have a tendency to bring somebody into contempt and ridicule and injure their reputation by imputing to them as for example the commission of a crime.

Justice Hugo L. Black: Was that the first time the court had decided that?

Mr. John B. Browning: That is the first --

Justice Hugo L. Black: 1888?

Mr. John B. Browning: That is the first appellate opinion that I've been able to find Mr. Justice.

And I believe that that is the first time it has come before the Court of Appeals.

Justice Hugo L. Black: What was that case?

Mr. John B. Browning: Tracy versus Commonwealth.

Justice Hugo L. Black: What?

Mr. John B. Browning: Tracy versus Commonwealth.

Justice Hugo L. Black: Where?

Mr. John B. Browning: It is cited in my brief at page 7.

Justice Hugo L. Black: Page 7.

Mr. John B. Browning: In that initial case in 1888 there was a question raised by the defendant concerning the definition of the offense and after setting out the elements that I have just mentioned, the Court of Appeals of Kentucky held that this constitute a complete offense and apprise the defendant of every fact necessary to constitute crime.

Justice Hugo L. Black: What kind of a case was that?

What kind of libel?

Mr. John B. Browning: It was a libel of public officials.

The defendant caused that an article to be published in a newspaper in Lexington in which he made statements about the Sheriff which if true would make him a corrupt official.

He also made statements about the jury but the appellate opinion does not reveal what they might have been and the appellate opinion states that the statements about the judge was that he took the matter from the jury in a condemnation suit.

Justice Hugo L. Black: False libel of a judge and of a sheriff, is that it?

Mr. John B. Browning: Of a sheriff and a judge.

And in the next Kentucky case decided in 1895, seven years later, Smith versus Commonwealth which is on page 9 of my brief where you find that there is no longer any reference to breach of the peace as a justification for this offense or as a part of the definition of the offense or an element of it.

And in the Smith case, malice was equated with knowledge -- knowledge of falsity of the defamatory statements.

And this seems to be in accord with the -- or the ruling, the majority of this Court in Garrison versus Louisiana.

The Smith case was used in instructing the jury in this case and you will note that the instructions particularly in the principal instruction were patterned after the appellate report in Smith versus Commonwealth.

Browning versus Commonwealth which was the third case, came -- that came before the Kentucky Court of Appeals in 1903 involved apparently a purely private libel which was unrelated to public affairs.

And this necessarily means that the common law offense in Kentucky is broad enough of course to apply to private parties as well as those who are in public office and to private matters as well as those concerning public affairs.

Now, the most modern case that we have in Kentucky was decided in 1927, it is Coal versus Commonwealth.

There the newspaper published statements about a circuit judge which alleged as a fact that he had cooperated with the prosecution and visit himself with getting evidence to convict three defendants who were charged in his court for the crime of rape.

The newspaper reporters according to the appellate opinion admitted falsity of their statements.

They were fined $250 fees.

The Court in the Coal case pointed out that certainly it was permissible under the privilege of fair comment for the press and members of the public to criticize and comment upon the acts of public official in a caustic and severe manner but that this did not extend to statements of fact which were defamatory and false.

The Coal case, our most modern case 1927, again did not bring in breach of the peace, did not mentioned it.

It was not an element of the offense obviously.

The definition never included it.

Justice Abe Fortas: Do you think that there is a difference in Kentucky law or in constitutional -- applicable constitutional principles between a alleged libel of a public official and of a kind of person.

Mr. John B. Browning: I don't think the common law of Kentucky makes any distinction Mr. Justice.

I believe that I will have to agree with the learned counsel on the other side.

The law in Kentucky is broad enough to include private as well as public matters.

Justice Abe Fortas: So that we're here -- we have to deal with this case in light of the proposition that the instructions of the law -- Kentucky law of a criminal libel to deal with that as if it were just a private individual involved.

Mr. John B. Browning: Yes, on the basis of individual reputation.

Obviously, this common law offense does not result in any breach of the peace.

That does not have to be shown, that's clear and the whole thing protected here is individual reputation.

Now, certainly we are not going to say that libel as utterances as a general classification are not within the protection of the guarantee of the First Amendment.

The federal constitution as made applicable to the states for the Fourteenth, we can't make that argument but I am here to make the argument that this Kentucky common law crime satisfies the relevant constitutional standards which Mr. Justice Brennan set out in the majority opinion of this Court in Garrison versus Louisiana.

Justice William J. Brennan: May I ask Mr. Browning, I think your Court of Appeals analyzed the instruction as satisfying the standards that Sullivan and Garrison laid down but I'm looking at page 125, you pointed to the instruction beginning at 122 which as you say, charged not only as to the public officials but also as to the -- as Mrs. Nolan, not that -- it had to be -- the proof had to be that it is false and libelous, was so known to be false and libelous from -- published by the defendant.

But look at the bottom -- the Instruction Number 3, particularly the word further, “The court further instructs that criminal libel is defined as any writing calculated to create disturbances of the peace throughout the public models or leave any acts which when done is indictable.”

And my question to you is under Sullivan and Garrison, are we ful -- freeing and notwithstanding the contrary conclusion of the -- of your Court of Appeals to say that that strikes us as an ultimate ground which certainly if that had been the only Instruction, Number 3, I think you would agree, would not have satisfied Garrison or something with it.

Mr. John B. Browning: Instruction 3 alone Mr. Justice (Voice Overlap) --

Justice William J. Brennan: Would not --

Mr. John B. Browning: -- would not have satisfied.

Justice William J. Brennan: Now, are we free to stay whether that strikes us as submitting an ultimate ground which would not satisfy Garrison and Sullivan and therefore that the -- or at least there has to be a new trial of this case.

Mr. John B. Browning: Mr. Justice, Instruction 3 should not have been given in this case.

I'll answer your question by saying it is not an ultimate ground.

Our case is that --

Justice William J. Brennan: Well, that's what your court held.

I -- my question is whether we're free to say that if -- reads to us, that this is a -- if it is an ultimate ground.

Mr. John B. Browning: And --

Justice William J. Brennan: I -- as I read your Court of Appeals the position you've taken is what it took, was it not?

Mr. John B. Browning: Yes sir.

Justice William J. Brennan: If this was not an ultimate ground if -- just something additional --

Mr. John B. Browning: It --

Justice William J. Brennan: -- but in the context of a known to be false and so forth which just preceded it that it could not have misled the jury.

Mr. John B. Browning: It is entirely superfluous.

It is obsolete.

Justice William J. Brennan: But can we really know that that may be obsolete but when the jury received the instruction, how are we to say that they could not rest their judgment on the conclusion that this writing was calculated to create disturbances of peace.

And that that alone was sufficient to support a conviction without regard to whether these -- this defendant knew that the statements in the writing were false.

Can we say that the jury didn't do that?

Mr. John B. Browning: Mr. Justice, if I might answer your question in this fashion.

I believe that the Court first instructed as to the four essential elements of the offense.

Publication of a false statement with malice which is defamatory per se then --

Justice William J. Brennan: Yes, but (Voice Overlap) --

Mr. John B. Browning: -- then proceeded to instruct further.

And our argument is that this simply required the jury to believe an additional fact which was not required to be shown for a conviction which was not incumbent on the prosecution to prove.

In other words, the jury had to find the regular elements of this offense as they had been defined as far back as 1895 in our decisions and then they were required by this third separate instruction to find that in this particular case the impact of the defamatory words were such as to create a breach of peace.

And in this we think was favorable to the defendant for the simple reason that the jury had to find this additional matter.

It was not required to be proved.

Therefore, no harm resulted, Mr. Justice, to the petitioner under our argument because this maybe considered perhaps a fifth element to be proved in this case which was not at all required to be done.

Have I answered your question?

Justice William J. Brennan: Oh, you have indeed.

I don't mean I agree with you but you said to give me an answer.

Mr. John B. Browning: I would hope that you would agree sir.

Justice John M. Harlan: What you're saying in effect is that the defendant got more than he was tried to.

Mr. John B. Browning: Yes sir, Mr. Chief -- Mr. Justice, that is our contention that he received by the instructions more than he was entitled to and the prosecution was required to prove more than they had to do.

I will say that I believe that in this case the evidence did fit the Instruction Number 3.

I think that in this particular case, the situation of this labor capital struggle, this bitterness, this violence were such that these statements when published might well have been calculated to incite a breach of the peace.

I might mention Mr. Justice Brennan, in Coal versus Commonwealth, our most recent case decided 1927 there is a situation where certainly a breach of the peace might have been provoked by the published matter.

If you read the opinion in that case, there was a question of legal lynching, farcical trial resulting in quick trip to the gallows and this was headline news, and it could've been a breach of the peace but the court, the appellate court in deciding that case did not even mention breach of the peace as an element of the offense or even in the definition of it.

It was completely superfluous.

Justice Abe Fortas: Mr. Browning may I quickly ask you if you agree with your adversary that the only evidence as to publication is the handing of copies to the two policemen.

Mr. John B. Browning: I do not agree with that statement.

I believe there is testimony by a person who served on the miners relief fund and he was asked if down at the beer tavern where this boy was distributing these pamphlets, if it were not true that some of these people had read the pamphlet and I -- in my recollection and I believe the record shows that he said, “Yes, they had read it.”

And of course it would be logical that they would.

They were all sitting around there.

That material was packed by the hundreds on the top of this table in this beer tavern and I might say about the two officers now that it -- it is a wrong impression to say that they went in there and forced this boy to give them these pamphlets.

They went into the tavern on a purely routine inspection.

They did this every night at a whirl as a regular patrol to check for disturbances.

When they went in on this evening four days after the publication was written, they saw hundreds of pamphlets on the table and then in a curious fashion, the record shows that they asked, “What is that?"

The reply was “Reading matter.”

Their testimony certainly is that the boy said, “Would you like one?”

And he urged them to take it and read it, take it home with them and read it.

And certainly, the record tends to show that that was not involuntary and the publication was to them.

Now, they went back and showed it to the Chief of Police when he came on duty the next morning and then he sent a policeman down there for the expressed purpose of getting a copy of it.

But prior to that, the officers received voluntary -- voluntarily from this boy and urged upon them this pamphlet.

Justice Abe Fortas: But (Voice Overlap) --

Justice William J. Brennan: Mr. London --

Justice Abe Fortas: Okay.

Justice William J. Brennan: May I ask one last question?

Mr. John B. Browning: Yes sir.

Justice William J. Brennan: Mr. London argued that outside of the writing itself there's no evidence, extrinsic evidence I think is the word he used, upon which they based a finding of knowledge of the falsity of the contents of the writing.

What do you have to say with that?

Mr. John B. Browning: Mr. Justice, the Board had not testified.

Therefore, he could not be asked if he knew the statements were false.

Justice William J. Brennan: Yes, but what -- how -- upon what evidence did the state rely to support the charge that the jury must find both that they were false and libelous and that the defendant knew that the publication was false and libelous?

Mr. John B. Browning: The only evidence to show acts of malice was that there was a reckless disregard for the truth and that evidence was that he was a stranger in this community and that he cited and stayed with only one faction and that he did not even come around and say anything to the newspaper publisher to the Sheriff, to the Chief of Police.

And they testified that had he made even the faintest attempt to talk to them, they would have been most happy of course.

Justice William J. Brennan: That there was no charge here that the -- that malice could be rested on a finding of reckless disregard of truth, wasn't it?

Mr. John B. Browning: I think that being a lesser degree Mr. Justice would surely be contained in that charge.

Justice William J. Brennan: Within the (Inaudible) --

Mr. John B. Browning: I agree with our appellate court that the instructions again in that respect were most favorable to petitioner because --

Justice William J. Brennan: Well, the instructions may have been but I'm still interested in the evidence upon which a finding under that instruction might be resting.

Now, you say it has to be that the evidence that he was a stranger in town but --

Mr. John B. Browning: Mr. Justice, there is no evidence in the record that he knew that these statements were false.

Justice William J. Brennan: No?

There is none?

Mr. John B. Browning: That he knew they were false.

Justice William J. Brennan: Well, then -- on what then does the finding within the instruction rest?

Mr. John B. Browning: It would have to be that it was a reckless disregard of the proof and that he had a high degree of awareness of the probable falsity of these statements.

Justice William J. Brennan: What's the evidence to support that?

Mr. John B. Browning: It must be in the -- the published matter itself that he made a series of wild and reckless allegations.

He against everyone, he attacked every law enforcement official.

He started with the Chief of Police and said that he was corrupt and a law violator.

He went on to the Sheriff of the county, he went on to the state police and said that they were in cahoots with the illegal activities of the murderous and crooked mine operators.

Everyone was maligned connected with the law and they all knew of the illegal activities of the operators and they condoned this and supported it.

Now, these statements were obviously reckless.

What about this --

Chief Justice Earl Warren: Or if they hadn't -- answered the question Mister --

Mr. John B. Browning: What about the statement that even the FBI several times came the picket lines and ignored completely the illegal activities of the operators of which they were well aware and instead harassed and intimidated the pickets.

This could not be so.

And surely, someone writing that must have had the thought, I think some of these are probably false.

This is --

Justice William J. Brennan: Well, (Inaudible) Mr. Browning, its my position that the extravagance of the statements and the writing itself support a finding of reckless disregard of the treatment.

Mr. John B. Browning: There must come a time also --

Justice William J. Brennan: But that do -- what that (Voice Overlap) --

Mr. John B. Browning: Not solely Your Honor that he did not make any attempt to check with these people or anyone else concerning the truth of these statements.

Justice William J. Brennan: And there was -- was there affirmative evidence of these people that he had never approached them?

Mr. John B. Browning: Absolutely.

They said that they have not even heard of this boy.

I think at least one of them did.

All three of them said that he never at anytime came around and (Voice Overlap) --

Justice William J. Brennan: Well, and this is his omission to check with them coupled with the extravagance of the statements in the right.

Mr. John B. Browning: Reckless nature of the statements of the --

Justice William J. Brennan: -- well, whichever way you want to put it but that's all there is you say in the way of evidence, the support of finding of reckless disregard.

Mr. John B. Browning: Plus the fact that he was a complete stranger in this community.

Justice William J. Brennan: Does that appear in the evidence?

Mr. John B. Browning: Yes --

Justice William J. Brennan: He was.

Mr. John B. Browning: -- he was a complete stranger, yes.

Justice Byron R. White: Could you -- is there anything in the record to indicate where he did get this information?

Mr. John B. Browning: There is no indication as to precisely where he got it but he stayed at the home of one of the strike sympathizers, Herbert Stacey whose home (Voice Overlap) --

Justice Byron R. White: But there's no -- there's no real testimony as to the -- who told him or whether he read it or whether he heard it or what?

Mr. John B. Browning: There is no testimony as to where he got his information, exactly.

Chief Justice Earl Warren: Mr. Browning, may I ask you this question, is there any other definition of the crime of which this man was charged in the instructions other than Instruction 3 which says, “The court further instructs the jury that criminal libel is defined as any ranking calculated to create disturbances of peace, corrupt the public morals or lead to any act which when done is indictable.

Mr. John B. Browning: Yes, Mr. Chief Justice, I believe that --

Chief Justice Earl Warren: Where do we find that?

Mr. John B. Browning: That there is a definition contained in the principle instruction that's found on page 123 of the record.

Chief Justice Earl Warren: And what --

Mr. John B. Browning: I say that (Voice Overlap) --

Chief Justice Earl Warren: What would that be?

Definition, what was it, what is that definition as the Court has laid it up?

Mr. John B. Browning: That he made false and defamatory statements presenting these persons to the public as a felon, a violator of the law, and is being degraded and unworthy persons and officials and that they were held up to ridicule and contempt.

And this is a standard definition which has been employed as to libel, criminal libel in all of the appellate opinions of the Court of Appeals.

Chief Justice Earl Warren: Well this -- that charges what he did, But this Number 3 purports to define what criminal libel is and it says that criminal libel is defined as any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act which when done is indictable.

Now, is there any other instruction defining criminal libel in these instructions.

Mr. John B. Browning: No, Your Honor.

I can only say that I believe that it's covered in Instruction Number (Inaudible) --

Chief Justice Earl Warren: You mean it's implicit in there that the -- that is the law that he is charged with violating.

Mr. John B. Browning: I believe --

Chief Justice Earl Warren: Because it didn't specifically say so, does it?

Mr. John B. Browning: It does not precisely say this is the definition but I believe that it uses the words which our appellate courts has always said was the definitions Your Honor.

Chief Justice Earl Warren: Yes, very well.

Mr. John B. Browning: Thank you Your Honor.

Chief Justice Earl Warren: Very well.

Rebuttal of Ephraim London

Mr. Ephraim London: May I just --

Chief Justice Earl Warren: Well --

Mr. Ephraim London: -- say one thing with respect to (Voice Overlap) --

Chief Justice Earl Warren: Your time is up.

Mr. Ephraim London: (Inaudible)

Chief Justice Earl Warren: I think you'd better conclude it now.