GREENBELT PUB. ASSN. v. BRESLER

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Case Basics

Docket No.

413

Petitioner

Greenbelt Pub. Assn.

Respondent

Bresler

Decided By

Burger Court (1969-1970)

Opinion

398 U.S. 6 (1970)

Argued

February 24-25, 1970

Decided

Monday, May 18, 1970

Term:

1960-1969
- 1969

Facts of the Case

None

Question

None

Argument

Greenbelt Pub. Assn. v. Bresler - Oral Argument

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Greenbelt Pub. Assn. v. Bresler - Oral Argument, Part 1

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Greenbelt Pub. Assn. v. Bresler - Oral Argument, Part 2

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Conclusion

Decision: 8 votes for Greenbelt Pub. Assn., 0 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly

None

Print this transcript Transcript:

Argument of Abraham Chasanow

Chief Justice Warren E. Burger: Greenbelt Cooperative Publishing against Bresler.

Mr. Chasanow, you may proceed whenever you're ready.

Mr. Abraham Chasanow: Mr. Chief Justice, may it please the Court.

The petitioners in this case contend that the evidence is constitutionally insufficient to support the judgment and as a basis for that contention, they refer to three of the 45 exhibits which were introduced by the respondent which the trial court instructed the jury it was to consider and which it did in fact consider.

Now, some of those exhibits are contained in the printed record, others which are not as important as the major exhibits are in the transcript.

But the Court of Appeals specifically made mention of the fact that in addition to the publications that Mr. Bresler had committed blackmail, there were publications that he had engaged in an unethical trade, had been guilty of skullduggery, had had legal proceedings started against him for failure to make construction, corrections in accordance with county standards.

These allegations were injurious to Mr. Bresler and his business as a contractor and were libelous per se.

The Court had also previously referred in its opinion to another article which was published prior to the three foregoing articles.

On April 22, 1965, before the blackmail articles and before Mr. Bresler became a candidate for comptroller and that was headlined, City Battles Bresler on Two Fronts.

There was a sub caption court suit, it was written by petitioner Skolnick and it falsely alleged that the city and Bresler will also be at odds this week when the suit filed by the city against Ivy Homes, Inc. and Boxwood Village Inc. comes before the Circuit Court.

Justice John M. Harlan: Do you think the disparities are characterized [Inaudible] rather than that the Court of Appeals to think that Bresler [Inaudible] charged with the blackmail charge?

Mr. Abraham Chasanow: No, Your Honor, we do agree --

Justice John M. Harlan: The evidence is all the way through it with some of these other matters because as I read the opinion, the essence of it was the blackmail charge?

Mr. Abraham Chasanow: We do not dispute the fact that this was the principle charge but I'd like to point out that in the second blackmail article for example, there was the word skullduggery and when the -- Mr. Skolnick was asked on the stand about the word skullduggery, he said, this is the word that the reporter used in the article.

When the reporter testified for the petitioners, she said, I did not use that word, that was inserted and as frequently happens.

Now this was a change and this was what the Court of Appeals also said was intended to impute dishonesty on the part of Bresler.

Justice Byron R. White: What did the trial court refer to in instructions to the jury?

Mr. Abraham Chasanow: The trial court specifically said of course that the jury should consider all of the articles in evidence and also instructed the jury that it was to consider the entire context.

Now, I emphasize that because one of their principle arguments says that the word blackmail was taken out of context and it didn't mean what it said.

Well, first, they had taken it out of context but publishing it as a caption in the first article.

Secondly, the reporters both said that they had not published all of their notes concerning the meeting but that they had used the word blackmail.

The second reporter, the reporter who wrote the second article said, I selected out the word blackmail to show it was Mr. Herling's word.

But she said, I didn't use all my notes and when I asked her why she selected out the word, she said, well, it had been used, the word the week before and I felt it was proper to use it again in the article.

The Court of Appeals makes one other important point and that is that these people --

Justice Byron R. White: Yeah!

But I --

Mr. Abraham Chasanow: I'm sorry sir.

Justice Potter Stewart: Did the Trial Court refer specifically to some document?

Mr. Abraham Chasanow: Oh!

Yes.

The second blackmail article, exhibit 2 in the record.

Justice Byron R. White: What else?

Mr. Abraham Chasanow: It referred to the blackmail article -- well, actually the Court said, it was not going to comment particularly on the facts but just briefly said what the -- what some of the witnesses said, but it didn't go into detail on the facts itself.

Justice Byron R. White: They just and in its instruction to the jury as far as any particular document is concerned, it only referred to the blackmail article?

Mr. Abraham Chasanow: No sir, as a matter of fact, I don't recall that there was specific --

Justice Byron R. White: That's alright.

Mr. Abraham Chasanow: I'm sorry sir.

The Court of Appeals made one other point which is important to this issue.

To distinguish it from other articles, which are published by a newspaper in which intemperate statements are made.

It said that there -- this was not a disinterested or impartial publishing of a report of what was said at a public meeting and it pointed out that the people who had made the statement, there was a relationship between them.

The Court said specifically -- I'm sorry.

Oh!

Yes.

The Court repealed -- referred and I quote, “The close connection between the Skolnicks, Mrs. Bergemann, Mrs. Rosetti and Mr. Herling, those to whom the word blackmail was attributed, Mrs. Sucher and Mrs. Williamson who wrote the articles and Charles Schwan, the President of GHI and the principal opponent of Bresler on the high school and zoning issues.

Now, I think it might be, well, at this point --

Justice William J. Brennan: Excuse me, Mr. Chasanow, may I ask?

Do I understand that the respondent concedes that he had the burden of satisfying the New York Times test to get a recovery?

Mr. Abraham Chasanow: We did concede that, Your Honor, I mean for a purpose to void and the Court of Appeals said, arguendo.

Justice William J. Brennan: Well, I'm asking, but the respondent does concede the judgment sustains only if it satisfied The Times standard?

Mr. Abraham Chasanow: May I make an exception to that, Your Honor, I think that this question to public official which would -- has never been clearly defined is an important issue in this case in this respect that their only constitutional defense was that Bresler was a public official.

The evidence showed that at the time of the first two series of articles, Bresler was a member of the House of Delegates from Montgomery County, a different county, not Prince George's County.

There is no mention in any of the 45 exhibits that Bresler was a member of the House of Delegates and none of the articles pertained in any way to his official conduct which is emphasized in New York Times versus Sullivan.

Now --

Chief Justice Warren E. Burger: What difference would that make, Mr. Chasanow --

Mr. Abraham Chasanow: Yes sir.

Chief Justice Warren E. Burger: -- if he is a public official?

Must they identify him each time by his office in order to bring themselves under the Times and Sullivan rule?

Mr. Abraham Chasanow: No sir, I say this because normally, reference is made to official conduct which has to identify the official.

This case has nothing to do with official conduct and they didn't even think that they were -- there was any privilege attached to the fact that he was a public official because they didn't mention it.

Even the article was a published fact that it was going to be announced that he was to run for state comptroller, that governor, later Vice President Agnew had asked him to run.

In that article, there was no mention of the fact that he was a member of the House of Delegates.

It had nothing to do with this case.

We say they are using this just as a cloak in order to say he was fair game because he happened to be a member of the House of Delegates.

Justice William J. Brennan: Well reading the -- what I must confess a rather confusing instructions of the trial judge particularly on two occasions as I read it, the jury was called back and given rather explicit instructions as I understand it quoting verbatim not only from Sullivan but also from Garrison and from Rosenblatt.

Mr. Abraham Chasanow: Yes sir.

Justice William J. Brennan: And that's why I asked you how -- this case certainly was tried wasn't it, on the premise that the respondent recovered only if he satisfied the Times malice test?

Mr. Abraham Chasanow: Yes, sir, that was the specific instruction --

Justice William J. Brennan: And are we then to regard that the issues that we have to decide as on the premise that this is a case within the Times-Sullivan requirement?

Mr. Abraham Chasanow: Yes, if Your Honor will draw the distinction, Mr. Justice Brennan, between the Sullivan case and I'd like to point that in my brief, I have indicated there are numerous exceptions.

One I'd like to mention particularly, in Mr. Justice Black's dissenting opinion, in the Butts case, he referred -- I'm sorry, New York Times rather, concurring opinion -- a separate concurring opinion, he referred to New York Times as an outside agitator.

In the posture of the case, here was the New York Times facing a hostile and prejudiced community which -- in which they could hardly hope for a fair trial.

The respondent in that case, Commissioner Sullivan was a resident of Montgomery County, he was tried by a jury composed of residents of Montgomery County.

He was attacking this foreign newspaper which was coming in and trying to tell them what to do.

We have actually the inverse situation in this case.

Mr. Bresler was the foreigner, he was the outsider.

He was coming into Greenbelt.

Now, in order to put this case in proper perspective, I'd like to mention one thing that the Court of Appeals noted.

The respondent -- the petitioner Skolnick was a member of this organization identified as GHI Greenbelt Homes which had once owned the land in controversy plus some 300 acres more.

The federal government had sold that land together with the house in Greenbelt to this corporation and said, “We want you to control the development around it.

So we're selling you this land at a low price.”

Instead of developing it, they took a quick profit, they sold it.

Then they realized that they might have made a mistake that somebody else was making the profits that they might have made and then stepping in the first blackmail article, one of the councilmen said, and he was a member of GHI, how much profit is he going to make?

This was a burning question.

The other was that Mr. Bresler and his associate had plans which were interfering with their own plans, for example on this matter of the townhouses.

Parcels one and two were adjacent to Greenbelt homes property.

They were fighting, the townhouses on that -- those parcels because the fact, they were going to build their own townhouse.

As a matter of fact, they've built there as in Bresler hasn't built a single townhouse on parcel one and two.

Then also, they were going to tell the school board where to put the school.

Now, the school board planned a high school and two other schools and they said, we don't want the high school next door.

We want you to build a high school on parcel 15 which was remote and much more expensive which was next to the beltway which was undesirable for a number of reasons and even filed suit against the school board to prevent them from building the school on parcels one and two.

They were also saying to the Park and Planning Commission which was the official professional planning organization for the entire county, we don't want you to zone this property for townhouses.

Now, they were trying to dictate even though they had once owned and controlled this property, they were trying to dictate how this property was going to be developed and this is a conflict.

These were amateur planners who were trying to tell the professionals what to do.

I think that in order to recognize the posture of this case, let me jump to the articles which start with the announcement that Mr. Bresler was going to run for comptroller.

I had not realized until recently --

Justice John M. Harlan: It is hard to escape the impact of New York Times, that you have to show that Mr. Bresler was neither a republic official nor a public figure, the later by virtue -- the majority in Butts [Inaudible]

Mr. Abraham Chasanow: Well this -- well, let me say this, we had felt that actually Butts was a dominating case because we felt that he was not really a public official at least as it had been previously defined in other cases by this Court.

He didn't come within any categories of St. Amant or a commissioner as in New York Times or deputy sheriff or any of the other categories and this Court has specifically said that we're not saying how far we're going to go and we certainly won't go all the way down the line.

Justice Byron R. White: What about General Walker in the --

Mr. Abraham Chasanow: As a public figure?

Justice Byron R. White: Yes.

Mr. Abraham Chasanow: Well, General Walker was a nationally known figure, no question of this.

The Court of Appeals, they couldn't comment it, that they would not have found Bresler to be a public figure.

Now, I'd like to make this clear.

We did not --

Justice Byron R. White: What?

What was that?

The Court if Appeals --

Mr. Abraham Chasanow: The Court of Appeals said that they would not have found Bresler to be either a public official or a public figure but they said arguendo since the trial court had instructed the jury on the basis of both public official and public figure that the question is really academic.

But, Mr. Bresler --

Justice Byron R. White: Well, are you arguing here -- you're arguing here then that even if these instructions don't pass muster under New York Times or even if the evidence is insufficient to prove malice under New York Times that you're nevertheless home free on a non-New York Times basis because this isn't a New York Times case, is that your position --

Mr. Abraham Chasanow: I think that would be one aspect in view of the fact that there are --

Justice William J. Brennan: Well, if it's not a New York Times case, then actually that principle doesn't apply and is there anything that this Court's ever said what the federal constitution does about a state's libel action?

If he's not either a public official or a public figure, why is the case here at all

Mr. Abraham Chasanow: Well, that's a question I asked.

Now, let me say this --

Justice Byron R. White: Are you asserting here that -- you don't concede here then I take it that this isn't -- that this gentleman was a -- was either a public figure or a public official?

Mr. Abraham Chasanow: He was a public figure in Greenbelt because the newspaper made him one.

Justice Byron R. White: Well, then do you concede that the New York Times rules apply to him?

Mr. Abraham Chasanow: I don't think it would apply to this entire case Mr. Justice White for this reason.

Justice Byron R. White: Well, it's only one case, one figure?

Mr. Abraham Chasanow: Yes sir.

But I'm saying that there are some of these libels which had no application whatsoever to as -- his activities as a public figure.

For example, the accusations that there had been suits filed against him for violation of county building standards.

This had nothing -- this was a private enterprise, this had nothing to do with the public issue with -- which they were emphasizing land and zoning and we think that it would be carrying the public figure concept too far.

Justice Byron R. White: What about skullduggery and blackmail?

Mr. Abraham Chasanow: Again, we don't think that those would apply.

We think that --

Justice Byron R. White: Well, then you say that New York Times has no relevance to this case here?

There's no applicability to this case, they don't -- if it doesn't apply to that, that those statements about this gentleman, you're saying that he just isn't a -- either a public figure or a public official.

Mr. Abraham Chasanow: I don't think New York Times does apply.

I think that if there's any application it might be --

Justice William J. Brennan: But you certainly made no objection --

Mr. Abraham Chasanow: No sir.

Justice William J. Brennan: -- as I read the instructions correctly.

I think you were party weren't you, you tried this case?

Mr. Abraham Chasanow: Yes sir.

As a matter of fact I --

Justice William J. Brennan: And you were party to those supplemental instructions which I mentioned to you earlier that borrowed in terms from the New York Times a series of cases to instruct the jury, not only didn't object to it but as I understand it, you participated in that, didn't you?

Mr. Abraham Chasanow: Yes sir because we wanted the case to go to the jury --

Justice Byron R. White: Then, how can you tell us now that this case doesn't involve the application of New York Times principle?

Mr. Abraham Chasanow: I was in effect assuming arguendo because I wanted the instructions of the jury to be as broad as possible.

I did not want any decision to rest on any narrow definition and the Court of Appeals said the same thing.

Justice Byron R. White: Well, you do now though apparently?

Mr. Abraham Chasanow: What's it?

Justice Byron R. White: You would like to now though?

Mr. Abraham Chasanow: Only insofar as this Court itself has narrowed.

For example, in New York Times, the Court said about eight times that this referred to the official conduct of a public official.

Then -- there's nothing to do with the official conduct of Mr. Bresler.

So we say if New York Times applies, then perhaps, it's just as Goldberg's statement which says it doesn't apply to the private activities of a public official.

Justice Byron R. White: Well, now you say he is a public figure in Greenbelt and he wasn't at that time?

Mr. Abraham Chasanow: Yes, sir, we couldn't, we couldn't deny it.

Justice Byron R. White: And in what respect was he a public figure?

Mr. Abraham Chasanow: The fact that they had made him one, as one who was participating -- well, I'd have to go back to 1934 -- I mean, 60 --

Justice Byron R. White: Well, I would suppose that these are -- some of these allegations are certainly related to whatever it was that made him a public figure, namely his activities in the construction business and his relationships with the county board.

That's what made him a public figure.

Weren't these allegations relate to his -- the conduct of his business with the county?

Mr. Abraham Chasanow: No sir, I think I could point out more clearly what made him a public figure.

In 1964 on May 7 when there was some dispute, some discussion of the council, the News Review published a report that the council and the audience decided it made much more sense to it, stop attacking each other and concentrate on a common target, Bresler who wasn't there and that was when they decided that they had to have a scapegoat because Bresler only owned a minority interest in these properties.

He was not the major owner.

There were others who owned more of an interest than he, but they had to have a name and his was a name that was selected.

They were -- this was followed up by the group sponsored by Greenbelt Homes.

Mr. Schwan who was president, in which they announced on April, 8, 1965 that the saved Greenbelt Group gets its officers a name CFPG and they formed this organization with Mr. Schwan with Mayor Smith with Albert Herling who made one of the blackmail accusations with Mrs. Skolnick and then on April, 22, they announced not only a citizenship assistant wide -- a citywide membership drive but had an article, City Battles Bresler on Two Fronts.

He was singled out by the News Review and that was when they made the false allegation with the subtitle court suit that the city and Bresler will be at odds.

Now, Bresler was not a defendant in that case and they knew it.

Even later, on May, 6, after there had been a hearing and after the Court had issued an order against Ivy Homes, Inc. in which Bresler had no interest whatsoever, this was what the News Review said, “At a hearing held two weeks ago, a court order was issued to the builders of Boxwood, another Bresler development.”

Bresler had nothing to do with that development to which the court urged, but they wanted to feature his name.

The exhibit showed that they constantly featured his name.

This is like the man who pleaded for leniency on the ground that he was an orphan after he had shot his parents.

They had made him a public figure and they were using this.

They were using the public official defense even though they knew that there was no relation and there was no mention in the articles.

But getting through the time when they announced Charles Bresler to run for state comptroller on June, 9, 1966, and this is where we get into the question of malice.

Now, they point out that this lawsuit that was filed about Mr. Bresler was subsequent, it had nothing to do.

But taking the chronology --

Justice Hugo L. Black: Is this -- he was charged from your standpoint you just made?

Mr. Abraham Chasanow: I'm sorry sir.

Justice Hugo L. Black: Is this the charge to which you referring to[Inaudible]

Mr. Abraham Chasanow: No this was after the blackmail charge.

Justice Hugo L. Black: What?

Mr. Abraham Chasanow: After the blackmail charge, there were other defamations.

Justice Hugo L. Black: Which one do you consider was the worst?

Mr. Abraham Chasanow: We consider that the blackmail, skullduggery, false reports of lawsuits for violation of building standards which damaged him as a builder, those were probably the most serious.

There were other articles about possible corrupt influence on the school board in which his name was mentioned in connection with the suit against the school board.

He was not a party to the case but they mentioned -- they featured his name.

It's hard to say which draw broke the camel's back but we thought there was an accumulation which certainly --

Justice Hugo L. Black: Are you sure that the accumulation broke its back?

Mr. Abraham Chasanow: It certainly made him the most hated man in Greenbelt.

I don't think there'd be any dispute about that and we think that the accumulative effect of these articles, even those which were not necessarily libelous per se, which were intended to and did in fact damage him, but describe it to indicate the process.

They announced he was going to run for state comptroller on June 9 and that's when they have the article which had several false statements and this time, in that article, he was identified as a builder.

Justice Hugo L. Black: As a what?

Mr. Abraham Chasanow: As a builder.

Not to mentioned as a member of the House of Delegates, but as a developer and builder.

It said he is currently faced with a series of legal actions instituted by the city of Greenbelt and referred to this suit which had been dismissed almost a year before and then also that false report that a number of homeowners in Lake Crescent Parks with developed and started legal proceedings against him.

Chief Justice Warren E. Burger: Well, if they had said in the article builder and prominent political figure or builder and political leader, would then -- you'd have no objection to it?

Mr. Abraham Chasanow: No sir.

I don't believe that it did.

Chief Justice Warren E. Burger: If they did, if they did?

Mr. Abraham Chasanow: Oh, I'm sorry sir.

Chief Justice Warren E. Burger: You seem to be making a point of their omission of his political affiliations.

If they said builder and political figure, builder and political leader, builder and member of the House of Delegates or whatever he is called there, would that make it alright?

Mr. Abraham Chasanow: It not -- would not be the governing factor but I think it would at least if they were saying we have the right to criticize a candidate for office, there certainly might be some reference to the fact that he does hold the political office.

If there was a question he was qualified for that office, may be there should be some question about it but we don't contend this is a major premise.

We merely wanted to point out that this was damaging as we alleged to his reputation as a builder, his violation of county building standards had nothing to do with any public issue.

Chief Justice Warren E. Burger: Well, suppose the governor for example coming to the end of a session of legislature announces publicly, a speech or something that if the legislature doesn't do certain things, he's going to call him back in a special session.

Then some member of the legislature makes some statement to the press that the governor is engaging in blackmail against -- do you think that's libelous per se?

Mr. Abraham Chasanow: No, sir, I think there is a difference though.

There had been articles published about the time.

There still are, there was one in this morning about bribe -- relating to bribery on zoning in Prince George, this had been a burning issue in Prince George's County and Virginia.

The people in Greenbelt were very aware of this.

Now, to them, the fact that somebody was threatening to prevent the building of a school, I would think would be much more serious than just bribing some official with a couple hundred dollars.

The jury obviously felt that they intended to accuse him of blackmail.

As a matter of fact, Mrs. Skolnick when asked, did you believe that -- or did you intend to accuse him of blackmail or did you think that the article -- that the statements were intended to accuse him of blackmail were proper, she said yes, in the context of the meeting they were proper.

There was no question that they intended to defame him.

These were not someone whom the News Review was reporting, these were their own people making these statements so the News Review could publish them and it was intended to inflame the people to the point where they felt he had committed a crime.

I certainly think that anyone who would stop the building of a school would be verging on something criminal particularly when they themselves in their brief mention coerced and threatened.

This is what the general public feels, this blackmail, coercion and threats.

I think the whole posture of the case that the fact that at that meeting, they read an inflammatory statement to begin with by Mr. Schwan and then the statements were made indicate the whole purpose was to cause these inflammatory statements to be made so they could publish them and republish them the following week when Mr. Herling was a member of that group, made the blackmail statement.

Justice Thurgood Marshall: Is it true that there was no evidence of pecuniary loss?

Mr. Abraham Chasanow: No, we did not claim any pecuniary loss because how can we prove that people would not buy any of the houses because he wasn't building according to county standards, there is no way of proving that Your Honor.

Justice Thurgood Marshall: Did the jury gave 5000 --

Mr. Abraham Chasanow: Yes sir, they felt I'm sure that there had been pecuniary loss as well as --

Justice Thurgood Marshall: Well, obviously the jury didn't agree with you that he'd been made out as the worst person in the county?

Mr. Abraham Chasanow: Well, I think they were conditioned by the statements made about this poor newspaper.

I think that there might have been a lot greater, in fact, my discussion with a couple of jurors later indicated that it could have been a good deal more.

I think the jury --

Justice Thurgood Marshall: Of course, your discussion with the jurors was not before us I hope?[Laughter]

Mr. Abraham Chasanow: I'm sorry sir, but I think that they tried to be temperate.

I think it indicated that they did reach what they felt was a verdict fair to both sides.

We think that this whole pattern and I'm sorry that the exhibits are not in chronological order indicated that they were leading up to, as a matter of fact, the filing of the suit against Mr. Bresler which was an absolutely privileged action was followed shortly after the announcement of his candidacy and we felt that this whole pattern of announcement week after week with a combination of a suit and the misrepresentation as to the purpose of collecting the money for the suit was an indication that they had intended to damage him all the way through that this was a continuing action.

We think that obviously the jury was convinced that they intended to accuse him of blackmail and that is what a layman reading the article would have felt, particularly when there was no reason to publish the caption blackmail unless they wanted to invite attention to the fact that he had been accused of blackmail, that he was a criminal.

I thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Chasanow.

Mr. Clark, you have nine minutes left.

Argument of Roger A. Clark

Mr. Roger A. Clark: Thank you, Mr. Chief Justice.

I would just like to comment briefly on Justice White's question about the instructions.

I think it's very clear from the instructions, Mr. Justice White that the trial court singled out only the blackmail article.

In fact, he referred to it three times in his instructions and did not refer to any of the other articles which the only other article --

Justice Byron R. White: Except generally?

Mr. Roger A. Clark: Except generally, the only other article that he relied on --

Justice William J. Brennan: He told the jury to consider all 45 exhibits.

Mr. Roger A. Clark: That's correct.

Justice Potter Stewart: [Voice Overlap] before the jury and so we have no idea what the jury thought was of --

Mr. Roger A. Clark: I think that you -- from the -- reading the instructions though, you will see that the focus of the case, and so only the focus of the Court of Appeals' opinion is on the term blackmail and that was the -- you get that clearly from reading the joint extract, you get that clearly from reading the opinion of the Court of Appeals.

Justice Potter Stewart: Insofar as those two courts went but it was the jury that decided the factual issues and awarded the damages and there's just no way on earth to know what they might have felt was crucial?

Mr. Roger A. Clark: That's right Your Honor except that there's only one other article in issue about which there was evidence that it was factually inaccurate. Not just one about the homeowners' proceedings which is just a really piddling inaccuracy when you take it against the fact that they knew in the way they reported it.

This reference in the instructions to the blackmail I think is helpful in answering the question, the point that you made Mr. Justice Brennan about the explicit references to New York Times at the end of this -- at the end of the Court's instructions.

The Court instructed that the jury that -- going to the factor of truth, there was no contention in this case.

It is conceded by the defendants that these allegations were not true, that Bresler committed the crime of blackmail, that Bresler was guilty of blackmail.

So in the background of that reference when the Court after it instructed the jury that malices, ill wills, spite or hostility --

Justice William J. Brennan: Well now, on that, didn't the -- if jury as I read this, like it came back twice and on the second occasion, the judge -- is that right?

Mr. Roger A. Clark: The second is --

Justice William J. Brennan: Yes.

Mr. Roger A. Clark: It is essentially right as the judge instructed after the lunch break.

The jury hadn't been out.

Justice William J. Brennan: Oh, I see.

But when they came back, he didn't say in so many words, forget everything I said to you about spite, ill will and so forth.

The law of the case is the New York Times rule and any, as I read it, what he did was read them the actual language out of the opinions in Times, Garrison and Rosenblatt, is that right?

Mr. Roger A. Clark: That's right.

Justice William J. Brennan: Did he -- did what -- did the jury then have the case on the basis, forget all about everything I said to you on spite, ill will?

Mr. Roger A. Clark: If he had said that, I think that would've cured substantially much of the error that had taken place but he didn't simply give the New York Times instruction, this is why I get back to this, a bit about we conceded that the allegations of blackmail were false because when he gets into the New York Times instruction at the end, he prefaces his comment with, there is no contention here that the statements regarding blackmail were true.

So he's really instructing the jury that we had conceded the statements were false, that meets the New York Times -- would meet the New York Times, does in effect -- underwrites the instruction completely.

Justice Byron R. White: Oh, no, no.

Conceding that the allegations were false, doesn't concede any knowledge of the falsity at the time?

Mr. Roger A. Clark: Well, it -- the fact that we did not contend that the articles were true meant that we conceded that this is what the instruction -- that we conceded that they can -- that the allegations were false.

Now, we if --

Justice Byron R. White: You conceded that if they were given the meaning of charging a crime --

Mr. Roger A. Clark: But if we concede, yes, that's exactly right and that's what the Court, led -- I believe led the jury to believe that we had conceded that the --

Justice Byron R. White: But the judge also in defining libel, however, if the jury thought that -- it was left for the jury to determine whether or not to charge you with blackmail the way it was used, was the charge deferred?

Mr. Roger A. Clark: That's right, and then he further instructed --

Justice Byron R. White: And the jury could not sign for the plaintiff unless they believe that the way blackmail was used was meant to charge a crime?

Mr. Roger A. Clark: Charged a crime.

Justice Byron R. White: Yes.

Mr. Roger A. Clark: Charged a crime.

And then --

Justice Byron R. White: And then we had to believe that before they could find --

Mr. Roger A. Clark: That's right but then he gives --

Justice Byron R. White: Under these instructions.

Mr. Roger A. Clark: He gives them the further instruction that we conceded that, that we conceded that the allegations were not true, that Bresler was guilty of blackmail.

So --

Justice Byron R. White: You do, don't you?

Mr. Roger A. Clark: No, I don't concede the --

Justice Byron R. White: Well, you do if they have -- if -- let's assume that the judge ruled as a matter of law that these words charged a crime, you disagree with that but let's assume that he ruled that way.

But then he asked if you concede that the so construed, those words were false, you would concede it?

Mr. Roger A. Clark: I would concede that, but I wouldn't concede that the allegations in the article are false and I think that was misleading to the jury.

What's lacking here obviously is an instruction, that clear instruction that the defendant, that the defendants not only charged this but that they knew they were charging, that they intended to charge this strained and really ludicrous meaning that they knew it, they knew it was false.

Justice William J. Brennan: Well, may I ask this?

I gather from what you said to me earlier.

After the New York Times charge was given, the correct one, Mr. Clark, that was trial counsel I gather for the --

Mr. Roger A. Clark: That's right.

Justice William J. Brennan: -- said that he still objected in view of the prior instructions that have gone before this in which malice is averted to as involving hostility that this should be made clear to the jury that evidence of evil motive, ill will, hostility does not constitute malice within the definition of the Constitution.

I gather even had that been given, you'd still be here, is that right?

Mr. Roger A. Clark: Yes, I certainly would still be here because I don't think the evidence is sufficient to allow a jury to make that finding.

I think for a jury to find that this article charge was the crime of blackmail --

Justice William J. Brennan: Well, do you think there is any issue whether this is a case involving the Times test, in that event?

Mr. Roger A. Clark: I think that's very clear that this is the --

Justice William J. Brennan: [Voice Overlap] a public figure --

Mr. Roger A. Clark: That he is a public figure.

Not only did he concede that he was a public figure but there was previous widespread publicity in the Washington Post and other metropolitan papers about his -- the magnitude and importance of his duties.

There are vast private developments planned in 25-year-old community lauding Mr. Bresler's activities and the scope and magnitude of those activities.

Justice William J. Brennan: Well, was any -- did Mr. Bresler take the position at trial at any time that he was not a public figure?

Mr. Roger A. Clark: No, in fact his counsel conceded it in his opening statement and the articles went to -- the blackmail articles went to a public issue that he raised the issue with the city council by making a proposal to it.

Justice William J. Brennan: Well, apparently the Maryland Court of Appeals had some question about it because it did say to treat the case as a Times case was more favorable to your client than what's he entitled to on the record?

Mr. Roger A. Clark: Well, I don't think the [Voice Overlap] --

Justice William J. Brennan: That's what the Court of Appeals said wasn't it?

Mr. Roger A. Clark: That's what the Court of Appeals said and I don't think there is any substance but I don't think they were looking to the fact that his public official capacity only [Voice Overlap] --

Justice William J. Brennan: In any event, you can see we have to be satisfied he's at least a public figure before we have any question before us at all?

Mr. Roger A. Clark: That's right and I think that the citizens of Greenbelt had as much interest in this zoning proposal which affected how a large proportions of their community was going to be developed as much interest certainly as the general public had in Wally Butts' college football experience.

The only other reference --

Justice Byron R. White: Well the Court did end up saying that you can only find for the plaintiff if you find knowing falsity or reckless disregard, you can only find for the plaintiff if you find that?

Mr. Roger A. Clark: Preference to -- by the -- reference to the fact that we conceded the statements were false --

Justice Byron R. White: But he ended up by saying it wouldn't be enough to find hostility.

Mr. Roger A. Clark: In a very lengthy and confused instruction that you could recover on other basis.

The other thing quickly is the skullduggery comment.

The skullduggery comment is a rather a novel theory. There is no -- it doesn't refer to Bresler.

There's no indication that the -- it -- the condensation of the skullduggery word, the condensation was inaccurate.

There's no indication of the underlying comments were inaccurate.

All it was, was criticism of the school board in delaying the condemnation actually but --

Justice Byron R. White: But do you think skullduggery is a libelous word?

Now let's just assume why if that -- you say that so and so is guilty of skullduggery?

Mr. Roger A. Clark: I don't think it's certainly a very serious --

Justice Byron R. White: Well, I know but is it or isn't it?

Mr. Roger A. Clark: I would have to say no.

Certainly when it's directed to a public body, an impersonal reference to an official action by a public body as we had in the Rosenblatt case, I would have to say that --

Justice Byron R. White: [Voice Overlap] free, a newspaper is completely free to charge anybody it wants to, private citizen or not with skullduggery?

Mr. Roger A. Clark: Well, I don't have to --

Justice Byron R. White: It's just not the kind [Voice Overlap] --

Mr. Roger A. Clark: I don't have to reach that in this case Mr. Justice White because they didn't charge a private citizen, they charged the school board.

Justice Byron R. White: I know but that is -- wouldn't make it as far as being libelous is concerned?

Wouldn't make any difference whether it's a private citizen or public figure as to whether or not it satisfies the definition of libel?

Mr. Roger A. Clark: In the context of what was involved, in other words, the postponement of a condemnation action by an official governmental body, I don't believe that that arises to be stature of a libelous statement under the Constitution.

Chief Justice Warren E. Burger: Is it your point that this was a group libel in effect by addressing the term skullduggery to the conduct of the entire board, not any one person?

Mr. Roger A. Clark: That certainly is my point and also there is just no showing it's false.

Chief Justice Warren E. Burger: Well, before you [Voice Overlap] --

Mr. Roger A. Clark: No attempt to make that.

Chief Justice Warren E. Burger: Before you could show falsity you'd enough to have a pretty firm definition of what skullduggery is wouldn't you, that would be hard to come by perhaps?

Mr. Roger A. Clark: Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you for your submission.

The case is submitted.

Print this transcript Transcript:

Argument of Roger A. Clark

Chief Justice Warren E. Burger: Number 413, Greenbelt Cooperative Publishing against Bresler.

Mr. Clark, you may proceed whenever you're ready.

Mr. Roger A. Clark: Mr. Chief Justice, may it please the Court.

This is an action for alleged libel.

Petitioners are a small community newspaper, the Greenbelt News Review and its president.

The respondent, Bresler is a major builder/developer in Greenbelt whose building activities there have previously received wide publicity as to their importance and magnitude in the community.

Mr. Bresler had numerous dealings with the city council and other government agencies in an effort to get their approval for his zoning plans.

And his counsel conceded in his opening statement that Mr. Bresler was a public figure in Greenbelt.

Also during this period, he was a member of the state legislature and later a candidate for comptroller of the state.

No actual damages were shown or claimed.

The jury verdict was entered for $5,000.00 compensatory damages, $12,500.00 punitive damages which was affirmed by the Court of Appeals.

Two of the three articles which the Court of Appeals relies upon to support this judgment are accurate reports of public debate that two city council meetings, two Greenbelt city council meetings regarding Bresler's proposal to the city in which he tried to pressure the city into supporting his request for higher density zoning for a large tract of land in the center of the city.

He did this by saying that he would agree to sell another tract which he owned in the city and unfortunately the school board wanted -- which the school board want to build a school which the city desired, he would sell that only if the city agreed to his zoning request.

Otherwise, he would insist on lengthy condemnation proceedings which would delay construction of a high school site.

Now, the first of the two articles relied upon by the Court of Appeals is in the joint appendix at page 211 and if I may since it's so critical to my argument, I would like to go through that article just the key points shortly.

Chief Justice Warren E. Burger: Before you do Mr. Clark, may I just remind you and I don't want you inhibit you about reading it that you're not going to ask us to decide whether the material should've justified the verdict, I take it but rather your obligation here is to point out what error there was in the submission of the case to the jury, is that primarily it?

Mr. Roger A. Clark: That's correct Your Honor and my argument is primarily that there was insufficient evidence as a matter of law to let this case go to the jury.

Chief Justice Warren E. Burger: In the first place.

Mr. Roger A. Clark: In the first place and therefore the court erred in denying my motions for directed verdict and for judgment n.o.v.

I'm also --

Unknown Speaker: Not resting on the record rather than the infringement?

Mr. Roger A. Clark: I am resting on the record, yes Your Honor.

Going to the article that forms the basis of this suit, the article is entitled School Site Stirs up Council, Rezoning Deal Offer Debated.

Article makes clear that the -- the article is now discussing a proposal to the city council and the debate on that proposal.

The first paragraph of the article, delaying construction of a new Greenbelt high school is the lever by which a local developer is pressuring the city to endorse his bid for higher density rezoning.

So citizens were told at a crowded meeting in the city council.

The next two paragraphs explain how the school board had previously been trying to get the land.

And at the top of the next page or the fourth paragraph in the article, the proposal, Bresler's proposal to the city council is fully and accurately set forth.

It's only at that point after it's clearly established in the article that the conduct being criticized is the proposal.

The proposal is set forth clearly.

The fact that it was publicly made is set forth and the fact that what was involved here was merely a threat to use his legal right to delay the condemnation edges, the right of any landowner to insist upon a condemnation proceeding.

It's only at this point that the article begins to describe the very hostile public reaction, the city council meeting to this proposal and the sixth paragraph, that accurately reports that a number of people at the meeting accurately characterized -- I mean a number of people has just been actually -- excuse me, the article accurately reports that a number of people at the meeting characterized this proposal as an attempt to blackmail the city.

The -- looking on the sixth paragraph, it says, it seems that this is a slight case of blackmail commented Mrs. Marjorie Bergemann and the word was echoed by many speakers from the audience.

Immediately after that reference to Mrs. Bergemann, a city councilman was quoted as saying that it's not blackmail.

He preferred to call it just two-way negotiations and the article goes on and lists other criticisms of the thing and the following comment demonstrates exactly what the people at the council meeting objected to.

He said, “Everybody knows there is a need for a school.”

The developer knows there is a need and says, “We'll meet your need if you meet our need.”

That's what the people were referring to when they were referring to this article as blackmail.

The second article is much the same thing.

It's the report of a second city council meeting and at which there was further debate on the same proposal and the city council finally voted four to one to reject that.

In that article, another participant is quoted the same, “Fight Bresler's blackmail” in an attempt to tell the city to vote the proposal down.

Right after that --

Unknown Speaker: Where is that in the record?

Mr. Roger A. Clark: That would be on page two, 16.

And right after that, another participant debate is quoted as saying that, “This isn't blackmail but the legitimate advance in Mr. Bresler's right to advance his rights to develop his land.”

Now, the decision below rests on the proposition, the incredible proposition I believe that these articles charged Bresler with the crime of blackmail and the petitioners knew they were charging him with the crime of blackmail and there was no evidence that anybody interpreted this article as charged in a crime of blackmail.

Bresler could identify no one who read the articles that way.

He couldn't explain why he himself claimed that they charged him with a crime of blackmail.

He couldn't explain what conduct he was supposed to have been charged with that would constitute the crime of blackmail.

Nor was he able to explain why he ignored the articles for nine months until he brought this $2 million libel suit at a time when he was in the midst of his campaign for state comptroller and the news review was accurately criticizing his disregard of certain land covenants and his misrepresentations to the city council in connection therewith that -- on another matter.

Unknown Speaker: Am I wrong that the jury should not have and would not have found for the plaintiff here unless it believed and understood the article in the paper to charge criminal blackmail.

Mr. Roger A. Clark: I don't think so Your Honor the -- for the reason stated on my brief, the instructions permitted the jury to allow recovery if they found that this was an intemperate or excessive statement and it was motivated by a sense of spite or hostility.

That report so I don't think the jury --

Unknown Speaker: You mean that was the way -- that's the way libel is defined in Maryland?

Mr. Roger A. Clark: No, libel, this was the instruction that was given to the jury that you could find that a -- on the Maryland rule of fair comment.

Unknown Speaker: At first it had to find that there was libel and the libelous statement made wasn't it?

Mr. Roger A. Clark: They first had to find that a libelous statement --

Unknown Speaker: And what was that libelous statement, did you think it found?

They couldn't have found that it was a libelous statement unless they thought it was criminal blackmail that was charged.

Mr. Roger A. Clark: Well, I don't think so under the instructions that were given.

The instructions were rather lengthy and somewhat confusing but I think the jury could very well have found from the instructions given that the defendant could recover if they found that a statement was solely intemperate or excessive as to indicate that it was other --could only have been activated by actual malice.

Unknown Speaker: Well then the jury was disregarding its instructions there, I suppose?

I mean it first had to find there was a libelous statement made, libel per se, right?

Mr. Roger A. Clark: Under the instructions of the Court, it had to find a libelous statement.

However, when you read --

Unknown Speaker: Well, did it -- did it find it?

I guess it did find it.

Mr. Roger A. Clark: Well, my point is that there is insufficient evidence here.

If you read the articles, anybody who reads the articles to that point is -- it is clear to them what conduct is involved here and that that conduct has no relationship to the crime of blackmail.

If the jury found that, and I don't believe they did under the instructions.

If the jury found that, my position here is that there is insufficient evidence from which they could make that judgment.

Moreover there is no evidence that the petitioners intended this strained meeting.

The only evidence relied upon by the Court was petitioner's testimony that the word blackmail in another context could charge the commission of a crime.

And that there was nothing at the meeting which indicated that Bresler committed the crime of blackmail.

Now, the Court of Appeals concluded on that testimony alone which assumed that the petitioners intended to charge a crime didn't -- there was no evidence, they just assumed that, that it would difficult to conceive of a case in which there was more convincing evidence that appellants had knowledge of a falsity of the charge or in fact entertain serious doubts.

This holding I submit is nothing less than a mockery of the New York Times role.

You can't establish falsity much less knowing falsity by taking a word out of context and ascribing to a meaning -- ascribing to it a meaning that is wholly different from that which it cont -- it's context dictates.

No one I submit reasonably can conclude from this article that the petitioners intended to charge Mr. Bresler with the crime of blackmail which was defined to the jury in the Court's instructions is the extortion of money by threats of criminal prosecution or embarrassment, threats of disclosure.

The article by making it clear what conduct that Bresler was being criticized, what that conduct was, that it was publicly made, a proposal publicly made in the city completely negates any reasonable finding that the crime of blackmail was charged or that the petitioners intended the crime -- the charge --

Chief Justice Warren E. Burger: Are you saying that read as a whole, the articles say in effect that Bresler was engaging in high pressure tactics to force the city to do something he wanted done?

Mr. Roger A. Clark: That's exactly right and the use of the word blackmail to characterize that is no more stronger and temperate than you see everyday in major metropolitan newspapers, responsible newspapers.

I have collected those articles in appendix 8 of our brief and you'll see that both the Post and the Star reported Channing Phillips characterization of Congressman Natcher's delaying the subway funds on the construction of the Three Sisters Bridge is blackmail.

The Post characterized editorially.

Senator Fulbright's attempt to force a change in Vietnam policy by stalling legislation is nothing less than blackmail.

These strong expressions are the essence of spirited debate.

They're the essence of the robust uninhibited wide open debate that this Court has sought to protect in the Sullivan case and all the cases that have burrowed from it.

If the press must run the risk that they will be taken out of context and given an ominous meaning to support substantial libel judgments, then debate will clearly be inhibited.

I think the respondent recognizes the weakness of this central holding of the Court by attempting to shift the focus to other articles that were in issue.

Justice John M. Harlan: How much was the verdict in this case?

Mr. Roger A. Clark: $5,000.00 compensatory damages and $12,000 by -- $12,500.00 punitive damages which had a far greater impact on this small paper than the $500,000.00 judgments against the New York Times in the Sullivan case.

As I say, respondent focused --

Justice John M. Harlan: What did they have?

Mr. Roger A. Clark: Excuse me.

Justice John M. Harlan: What was the legal basis for the punitive damages?

Unknown Speaker: One of two meetings, one at the (Inaudible) --

Mr. Roger A. Clark: The -- well, of course the jury verdict does not make that clear.

Justice John M. Harlan: Yes, did you have -- what was the legal basis?

Mr. Roger A. Clark: Well, the --

Justice John M. Harlan: Upon which they were charged, and they had a right to yield punitively.

Mr. Roger A. Clark: They were given the standard instructions on punitive damages that if they found that the defendant's acted with spite or hostility that they would -- to be allowed to recover punitive damages.

The only other article and issue which the Court relies on the support of this verdict is an article entitled Charles Bresler to Run for State Comptroller and it listed on the eve of his announcement as a candidate for state comptroller, lists his dealings in the community and there's a statement in there that a number of homeowners had started legal proceedings against him for failure to make construction corrections in accordance with county standards.

Now, the basis for this article was clearly set forth in the record.

15 to 20 homeowners at a public meeting told the news review's reporter after a public meeting, told the news review reporter that they had gone to their lawyers and they had filed complaints with county officials regarding their homes which the reporter interpreted as starting legal proceedings.

Many of these people were personally known to the reporter, Mrs. Skolnick or they -- she recognized them as residents of the community.

She'd has also previously heard similar complaints from other people in the developments.

All of the homeowners with whom she talked identified Bresler as the builder that -- with whom they were dealing.

Bresler himself conceded that he'd received a number of complaints and that he responded to those complaints.

Moreover, it subsequently turned out that one suit had been filed and two suits were subsequently filed, they got three suits were subsequently filed against corporations in which he was a principal.

Now, the claim of falsity here is very narrow.

The claim of falsity is that by saying started legal proceedings is -- that statement is false because no suit had been filed against him personally.

Now, the gist of the article of course that a number of homeowners, substantial number of homeowners in the community were complaining about defects in his homes, that was true.

The trial court paid little attention to this article.

He mentioned in his -- in denying the motion for a directed verdict that this article didn't bother him.

The Court of Appeals, however, said that the failure by the reporter to check court records or to call Bresler before reporting this information was sufficient evidence to constitute a fining of recklessness.

Chief Justice Warren E. Burger: Now, specifically which information was that?

Mr. Roger A. Clark: The information that the Court said that Mrs. Skolnick should have checked the court records to determine whether lawsuits had actually been filed against Bresler personally, and this finding is completely at odds with the holdings of this Court in Garrison and St. Amant that there must be some evidence that the publisher was aware of a possible inaccuracy or probable inaccuracy in this article.

There's no finding or evidence here that petitioners had any doubt as to the accuracy of this report.

Since they have gotten their information from a number of homeowners who were apparently responsible and who presumably were speaking from firsthand knowledge and who had in fact complained to Bresler and in fact gone to their lawyers, they had not reason to doubt their -- this information or to investigate further.

Justice John M. Harlan: What was Bresler's connection with the company, in your opinion?

Mr. Roger A. Clark: Well, Bresler was a part owner and at the trial, he denied that at this point in time he was active in the corporation.

However, a contemporaneous affidavit which he filed in another case, completely unrelated case, filed right at the same time said he was the vice president of the corporation in charge of all sales and the critical thing from the standpoint of the reporter's was that Bresler was the one who dealt with all of the complaining homeowners, homeowners naturally personalize the builder.

They don't think it's X corporation or Y corporation.

They think about it in terms of Zeckendorf or Yonas or whoever the builder happens to be, they tend to personalize this and they were talking about Bresler and Bresler was the one who responded to their --

Justice John M. Harlan: Were they accused (Inaudible)?

Mr. Roger A. Clark: What?

They were saying that he had failed to make corrections in their homes in accordance with county standards.

There was -- were claiming that he had failed to correct deficiencies in their homes, that his development built.

Justice John M. Harlan: Correct what?

Mr. Roger A. Clark: Deficiencies in the homes.

Justice John M. Harlan: As an officer of the company?

Mr. Roger A. Clark: Well, they were equating him with the company and the developer.

He was the -- to them, Bresler was the builder.

He was the one that acted for the builders, it as his corporation that was failing to perform.

So they were equating Bresler with his corporation.

Justice John M. Harlan: And exactly what they accuse him of?

Mr. Roger A. Clark: A failing to make corrections to bring their houses up to snuff.

Justice John M. Harlan: Is that all?

Mr. Roger A. Clark: That's all.

That's all.

Now, the court responding to Mr. Justice White's observation start, I do claim that the instructions here are clearly wrong.

Throughout the instructions, the court repeatedly instructed that the defendants could recover, I mean the plaintiff could recover if he showed actual malice which was defined as spite, hostility or deliberate intention to harm.

Now the clause of the -- his instructions, the Court did give an instruction, an incomplete instruction on the New York Times rule, but he failed to instruct the Court that spite, hostility and ill will as he had repeatedly defined it before was not sufficient to permit recovery.

Also the Court refused to rule out near negligence as a proof of references.

I don't emphasize here these erroneous instructions because as I've pointed out, the three articles upon which the court relied, are clearly insufficient as a matter of law to permit recovery under the New York Times rule.

Chief Justice Warren E. Burger: Well, then is it your position that even if the instructions were correct the --

Mr. Roger A. Clark: You could not but you could be -- you could not recover and that our position also is that this unfounded litigation as such -- been such a strain on this small newspaper that if we -- if you simply reverse on the basis of the instructions which are clearly erroneous as there will be a denial of the First Amendment protection.

Therefore I ask the Court to review the record and determine that it does not contain evidence sufficient to support a verdict under the constitution.

Thank you.

Chief Justice Warren E. Burger: I observed that you've only got two minutes left of today.

I think we won't ask you to split your argument to such a fragment so we'll adjourn for the day.