OCALA STAR-BANNER CO. v. DAMRON
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Harold B. Wahl
Chief Justice Warren E. Burger: We'll hear arguments next in number 118, the Ocala Star-Banner Company against Damron.
Mr. Wahl, you may proceed.
Mr. Harold B. Wahl: Mr. Chief Justice, gentlemen of the Court.
This is a right interesting libel case.
The trial judge actually directed a verdict for the plaintiff on compensatory damages and told the jury that the only question was how many dollars they were going to give the plaintiff on compensatory damages?
As to punitive damages, he told the jury that they can only give those if malice were proven and the jury brought in no punitive acts.
The attorney for the plaintiff was successful in urging upon the court and the Florida courts have consistently held, in this case, that the New York Times doctrine and I quote from the opinion of the District Court of Appeal on review, only applies “to official conduct of a public official.”
The time of this case was April 1966 at the height of the civil rights controversy in the South.
The locale was rural Citrus County, population 9,268 without even a daily or weekly news or semi-weekly newspaper of its own.
Plaintiff Damron was a small town politician and garage man.
He was Mayor of the Municipality of Crystal River, population 1,523 and a candidate to succeed himself.
He was also practically a full-time candidate for county tax assessor, politicking for that job while his brother James Damron ran his garage.
In the middle of the election campaign for county tax assessor, and of course, he was continuously running for re-election as mayor and was subsequently defeated.
The defendant Ocala Star-Banner, the daily newspaper in a nearby Marion County, ran the offending article.
In the article, it was stated, erroneously, that Leonard Damron rather than his brother had had a case continued which was an indictment for perjury in the federal court in the civil rights case.
Now, if there was anything that was of more public interest in the rural South in April 1966 than civil rights, it was an indictment for perjury of a Damron in a civil rights case.
Now, the article was written by a man named Myer, who just recently come to this position with the Ocala paper.
He had never even met the plaintiff, but he had written a number of articles about the political goings on in Crystal River where there two factions and the plaintiff was the head of one of them.
And when the story was phoned in to him, the reporter phoned in the correct name of James Damron, but the area editor had heard so much about and had written so much about this politician brother that throw an error, he just automatically wrote down the wrong name and that's how the name of Leonard got in rather than James.
Leonard then brought a suit for libel and he specifically alleged and I quote from his complaint “that he was a public officer being elected to the office of mayor of Crystal River and a candidate for the office of tax assessor of Citrus County.”
Then, he charged that the words of the article imputed perjury and again I quote his exact words “to the electorate of Crystal River and Citrus County.”
He then went on to allege that the article was published in the middle of the election campaign and cost him the election and he concluded by claiming damages to his reputation as a “public officer and candidate for public office.”
He didn't even alleged malice in his complaint.
The word malice doesn't appear in it, even though the Court did submit the issue of malice on punitive damages.
Chief Justice Warren E. Burger: What's the significance of your position there?
In Florida pleading must they allege --
Mr. Harold B. Wahl: Malice in a libel suit, yes sir, certainly, under New York Times, you'd have to allege malice.
The newspaper moved to dismiss the complaint because of the failure to allege malice and moved to strike the public figure damages where he was claiming damages to him as mayor and as candidate for public office.
Both motions were denied. The case came on for trial and the Court, as I say, actually instructed the jury to bring in a verdict on community -- on compensatory damages, the only question being the amount of dollars.
Plaintiff testified that he had been defeated for county tax assessor.
He gave the salary of the office.
He further testified that he was defeated for re-election as mayor.
His trail witnesses repeatedly testified as to the effect that this article had had on his standing with the electorate and that that was what it cost him the election.
Motion for new trial and judgment non obstante veredicto was filed.
It expressly urged the New York Times cases, the motion was denied.
The Florida District Court of Appeal affirmed on the judgment on the directed verdict, holding that the New York Times doctrine only applied to “official conduct of a public official” and that this alleged libel wasn't a libel that he had done as a public official.
The Florida Supreme Court refused to review the case and this Court has granted certiorari.
Justice Potter Stewart: Mr. Wahl, the salary of the office to which your -- to which this gentleman was an aspirant was $9,000.00 a year.
Mr. Harold B. Wahl: And our understanding and it's pure hearsay, is that the jury verdict was made of two-year salary, $18,000 and the extra was a little bonus, that's where the verdict came from.
Justice Potter Stewart: Well, he also lost his bid for re-election as mayor.
Mr. Harold B. Wahl: Well, he didn't get paid in that.
Justice Potter Stewart: That was a non-paying job.
Mr. Harold B. Wahl: That was a non-paying job.
Justice Potter Stewart: Sure --
Mr. Harold B. Wahl: But the whole thrust of the case, Mr. Justice Stewart was that this article was published right in the middle of the election campaign, when it was too late for me to do anything about it.
I am mayor, I'm trying to continue to be mayor.
I'm a candidate for county tax assessor and this article is what has cost me the job.
Now, I can say all that, he said it.
Chief Justice Warren E. Burger: Would you think a jury could reasonably find that he lost the election because of the article?
Mr. Harold B. Wahl: Well, it's all that he did --
Chief Justice Warren E. Burger: Setting aside all of the factors?
Mr. Harold B. Wahl: Yes, because there isn't any question that we made a mistake.
Chief Justice Warren E. Burger: Could they reasonably find it?
Mr. Harold B. Wahl: Yes, I don't think there's -- that was his whole theory and if you erroneously accuse a man of being indicted for perjury under civil rights case, under rule of Florida in 1966, well he's goner, short of being elected to public office, there isn't any question about that.
Justice Potter Stewart: Was there any evidence of injury to him in addition to or except for this public office?
Mr. Harold B. Wahl: Oh, yes.
He intermingled the two.
He said that he had lost business in this garage shop that his brother, the one that was indicted was running for him and then of course, he said, he felt bad and it made him feel bad with his neighbors and so forth, had been accused of this thing and that sort of thing, he brought that in.
But the real thrust of this case was that I have been defeated for county tax assessor and I lost my job as Mayor.
Now, clearly New York Times applies to a situation of this kind where the plaintiff made his own bet.
I didn't try the case, but the lawyer who tried the case didn't come in and say that he was a public figure.
The plaintiff brought his suit and specifically alleged that he was a public figure that he was the Mayor running for re-election, that it one stand, that he was the candidate for tax assessor, and that he's been damaged as a candidate and as Mayor.
Now, we say under those circumstances that this case should not be sent back for another trial to have more expense, but that this Court should direct a verdict for the newspaper.
Now, he had ample opportunity in this case to prove this malice because he was seeking a half million dollars in punitive damages in his complaint and he brought in everything he could on malice to sustain his punitive damages, so has had a chance to prove his malice.
The only thing that he showed on malice were three innocuous articles, written not by the man who wrote this story, but by somebody else in the past about him, one of which said, that he had walked out of council meetings and he said, well, I had differences to the council, but I had never physically walked out.
Another one said, he had clashes with the council.
He said, well, I had differences with them, but I didn't have any clashes and the other one he says gave an erroneous salary for the city attorney.
Now, certainly those articles were not sufficient to establish malice and that's all he has.
As I say, the man who wrote the article made a mistake.
There isn't any question.
The reporter phoned it in and she had the right name, but this man, the plaintiff was so much in the public eye, he was even keeping clippings in regard his own testimony of all the stories that Ocala paper read about him.
He was an actor on the public stage.
He was trying to get people to know about him.
He was seeking publicity and because of those public activities, because of he was seeking the public eye, this new newspaper editor who had this job about a month had heard of him and he just automatically assumed when they read the name Damron over the phone.
They were talking about the public figure and so he put the public figure's name in the article and wrote the article about the public figure rather than about his brother.
Justice Byron R. White: Well, didn't somebody in the paper know that this was false?
Mr. Harold B. Wahl: Well, the reporter who called it in --
Justice Byron R. White: Knew it was false?
Mr. Harold B. Wahl: That the report --
Justice Byron R. White: Everybody else on the newspaper knew it was false?
Mr. Harold B. Wahl: That's right, everybody.
The only man who made the mistake was the man who wrote the article and sent in and had it published.
The reporter who published it called in the right man.
This new man just simply made an error.
Justice Hugo L. Black: At what stage was the campaign was at --
Mr. Harold B. Wahl: Right the middle of it.
Justice Hugo L. Black: What?
Mr. Harold B. Wahl: Right in the middle, two or three weeks before the election.
Justice Hugo L. Black: Two or three weeks?
Mr. Harold B. Wahl: As I understand it, right square in the middle of it and I agree with you that the man who wrote this story was in error.
He was careless.
He was negligent, but he certainly wasn't guilty of express malice or a calculated lie with an intent to harm.
He just plainly made a mistake.
Chief Justice Warren E. Burger: What did they do about it, if anything?
Mr. Harold B. Wahl: The next day, the newspaper ran a retraction and said, “We're sorry.
We made a mistake.
We got the wrong man.”
The next day or a few days later, the plaintiff wrote a letter into the paper and again, said I am Mayor, I'm candidate for tax assessor, this has hurt me.
You got it wrong, I wasn't the man.
They published that.
A few days later, one of his supporters wrote a letter to the newspaper and said, you've done a grave injustice to this man.
He's a mayor.
He's candidate for tax assessor.
It hurt him with the electorate.
You're a bunch of terrible people to run this.
The newspaper ran that.
So, three times, the newspaper corrected it, but what I say is that the New York Times doctrine applies because this man made his own bad.
He's the man who filed a complaint and said he was a public figure.
He's the man who said he was hurt was made.
He's the man who said he was hurt as candidate for tax assessor and having made bad, he's bound by it.
Now, as --
Chief Justice Warren E. Burger: You mean he is bound by New York Times, that's what you mean?
Mr. Harold B. Wahl: That's right.
Chief Justice Warren E. Burger: He has put himself in the news -- New York Times case?
Mr. Harold B. Wahl: He's gotten in bad with the New York Times doctrines, yes sir, he can't get out --
Chief Justice Warren E. Burger: You don't think -- you're not suggesting he waived any of his rights by doing that?
Mr. Harold B. Wahl: Oh, no.
Certainly not, but I'd say that he's pleaded himself and proved himself within the New York Times doctrine.
Now, it's true that the story didn't say Leonard Damron, Mayor or Leonard Damron, a candidate for tax assessor.
It barely described him as businessman or garage man or some of that kind, but the only reason that Myer put his name in that story because Myer thought that it was a public figure, so he wrote a story about a public figure.
Now, Garrison makes it clear that you can't separate private reputation from public reputation.
And two are so intermingled here that there's no way for him to get a verdict for damage to his private reputation when he has rejected his public reputation.
Now, as our Former President, the Honorable Harry Trumann said, “If you can't stand the heat, stay out of the kitchen.”
Mr. Damron instead of staying out of the kitchen of politics, he got in with all four feet.
He sought publicity.
He even kept the record of his clippings.
He was in one office trying to run this little town, trying to stay home.
He was trying to get a paying office in the county and since he is in the kitchen, he can't complain because of comments.
We respectfully submit that under the circumstances here, the New York Times doctrine applies because of his own allegations, and his own proof, and that we should not be put to the expense of another trial since he has had a chance to put on all of his evidences.
This isn't like some other case where maybe he can't get it all in.
He was trying to get a half million dollars in punitive damages, so he put in all the malice he had and that the Court should be directed to enter a verdict --
Justice John M. Harlan: What were the -- what was the verdict amount?
Mr. Harold B. Wahl: $22,000.00, which I understand purely hearsay was two-year salary, $18,000.00 and then four more for loss of business in his store or hurt feelings and that's all.
Justice John M. Harlan: All the compensatory, in your view, is it?
Mr. Harold B. Wahl: Sir?
Justice John M. Harlan: All compensatory damages in your view --
Mr. Harold B. Wahl: Oh, yes because he specifically in Florida.
Now, I was amazed to hear a case yesterday where they didn't know whether it was compensatory or punitive in Florida.
You have to spell out blank dollars punitive, blank dollars compensatory and there was no verdict given for punitive damages.
Justice Hugo L. Black: You mean compensatory for his having lost the office?
Mr. Harold B. Wahl: Primarily that, yes sir because he had lost the office.
He also claimed that he had -- had some loss of business.
Of course, he had the brother who was indicted for perjury running the business, so it's kind of hard to see how that could've affected the situation.
Justice Hugo L. Black: Nothing was submitted to the jury about whether or not that had anything to do with his losing the office, is that correct?
Mr. Harold B. Wahl: Oh, yes, that the jury -- the judge specifically told the jury that they could bring a verdict in for damages that he had sustained as a public servant or words to that effect, let me see just what the exact word was.
Justice Hugo L. Black: You don't mean the jury was --
Mr. Harold B. Wahl: The jury was --
Justice Hugo L. Black: -- (Voice Overlap) suggest that whether or not he wouldn't won in that --
Mr. Harold B. Wahl: Yes.
Here's what they told that he could -- the jury told that he could -- that the jury could bring these damages, this is page 82 of the appendix.
First as to compensatory or actual damages, you may award a sum that will fully and adequately compensate the plaintiff for his mental suffering, embarrassment, and injury to his reputation as a citizen and public official, and any of the damage that would naturally flow for being falsely accused of felony.
Justice Hugo L. Black: But that doesn't -- that doesn't mean (Inaudible) the jury --
Mr. Harold B. Wahl: Well, that's the whole theory --
Justice Hugo L. Black: -- to determine whether or not he would win the election if it hadn't been published?
Mr. Harold B. Wahl: Well judge, the whole theory of the case was that he lost the election, that's what all the witnesses testified.
That's the whole theory on which the case was tried.
That's what all his trial witnesses testified about.
He even gave the salary of the job that he lost.
That was the basis on which the case was tried and the whole theory of his damages as primarily as he alleged in his complaint was that he was a mayor, a candidate for re-election and that he suffered damage in that capacity.
Chief Justice Warren E. Burger: Mr. Wahl.
Argument of Wallace Dunn
Mr. Wallace Dunn: Mr. Chief Justice Burger, members of the Court.
A rebuttal to Mr. Wahl's comments --
Chief Justice Warren E. Burger: Would you raise your voice a little counsel?
Mr. Wallace Dunn: Yes, sir.
I like to point out some various salient features in this case.
I will concur with Mr. Wahl on one thing, it is an unusual case.
The original complaint, and I filed the original complaint, was filed in 1966, but this case was not tried until January 1968.
As pointed out in my brief, just prior to the trial of this case, the trial attorney admitted liability on behalf of the defendants and we tried this case strictly on the question of damages.
However, in working --
Chief Justice Warren E. Burger: When the judge directed a verdict, to use the term that your friend used, he was directing that in effect pursuant to concession of liability?
Mr. Wallace Dunn: Yes, this is quite correct.
And this is the reason for the --
Justice Hugo L. Black: Where is it here in the record?
Mr. Wallace Dunn: Sir?
Justice Hugo L. Black: Where is that in the record that he admitted it, it's not in the record, liability?
Mr. Wallace Dunn: The fact -- the only place in the record that you can -- that has a direct reference to it, sir, is the comment of the judge at the time he directed the verdict.
In other words --
Chief Justice Warren E. Burger: Where do we find that in the appendix, I don't have it my --
Mr. Wallace Dunn: It's on page 80 of the appendix, at the bottom of the page.
Justice Hugo L. Black: Page 80.
Mr. Wallace Dunn: Yes, sir.
I had made my application for a directed verdict at the conclusion of the evidence and the Court at the point of discussion pointed out why I think liability as to compensatory damages is admitted in this case, not proven that the word admitted was used and this is exactly what happened and that is a reason for the candor in which this was tried.
Now, the record goes on to show that the defense attorney made no objection to this statement.
He was only asking the Court to define what type of damages would be returnable by the jury and what findings the jury would have.
Now, in this connection, I would like to also point out that we have a very little statutory law in Florida relative to the trial of a libel action.
The statute in Florida only has to the -- directed to the award of punitive damages and provides that if a retraction is printed of the same size, type and general location in the newspaper, punitive damages will not be awarded and the jury was so instructed.
As a matter of fact, they were instructed twice as shown bu the record.
However, I would like to point out to the Court that there's more to this case as shown by the record, although we did try it on the question of damages only and I refer the Court to page 75 of the appendix, relative to the testimony of Mr. Fred Myer who was the area editor and in his testimony starting about a half way down the page, in answer to a question, “now, at the best of your recollection now what word did she actually used when she called in.
Mr. Myer, “Oh, the only word I caught was Damron and I automatically put on Leonard.”
“Why did you do that?”
“He was the only Damron I knew.
It was probably a minimal abrasion.
I just assumed that it was Leonard Damron.
I didn't hear Leonard on the phone.
I can't swear that I did.
I just heard the word Damron.”
And the next to the last question on the page and in his capacity as mayor of Crystal River, he had been writing articles about Leonard Damron.
We turn over to page 76 and here's where the unusual part of this case begins.
Starting on the middle of the page, question, “Well, tell me Mr. Myer, having written as many stories about Mr. Leonard Damron,” this is on cross examination incidentally, “weren't you aware that Mr. Damron was in Crystal River?”
“Mr. Myer, would you look at the dateline on the story which was published in error and answer me what is the dateline in that particular story?”
Next question, “You had a mental aberration?”
Question, “A man, you have been writing stories about in Crystal River, Florida and you suddenly give a story about him in Inglis, Florida and you make this change without checking. What happened?”
“It so happened I did” and his next statement was “You'd spend 37 years in the newspaper business.”
I refer the Court now to page 70 of the appendix, which is the testimony of Ms. Lucy Weir who was the reporter who called in the story.
On page 70, she reads into the record the first story that was printed about James Damron in January of 1966 which is substantially correct.
Starting on page 72, that story incidentally is reprinted in part as appendix as on 85, it was attached.
Now, here's where the -- we really get to the reckless disregard and the malice in this case.
On page 72, second question.
This has been received in evidence as defendant's exhibit number three referring to the prior story.
Now, what procedure, talking to Lucy Weir, “what procedure do you follow in writing a story and transmitting it to the Star-Banner, Ms. Weir?”
Answer, “Well, I use one of two procedures.
If the story is not of particular news interest, I generally type it and mail it in since the mail service is one day.
If the story is of a particular news value, I'll phone it in early in the morning.” Question, “Alright, what procedure did you follow in transmitting the particular story, “Damron cased passed over in next U.S. term,” this is the article sued upon.
“What procedure did you follow in transmitting that story to the Star-Banner for publication?”
Answer, “I typed it first at home.
I read it over the phone the following morning, the same morning to Mr. Myer.” Next question, “And what is this?
What is the story?”
Answer, “The story is essentially the one that I called in, the only change being that the city was changed,” referring to the dateline Gainesville where the federal court was sitting.
And she fills on to state, “When I phoned in that morning, I had a Gainesville dateline which was where the action had occurred.
I was informed that our editor had given instructions that any story appearing on this page was an area page and should have and coming out of the area concerning the area of people, should have a dateline of the city that the people were concerned with because people read datelines rather than the text of the story.
Question, “Who did you telephoned it to?”
Answer, “Fred Myer.”
Now, it doesn't take a great deal of logic for a man to understand when Fred Myers said he had a mental aberration that this was not a true statement.
The details shown in Lucy Weir a discussion of how that story went to the newspaper.
First of all, this was actually a reprint of a prior story.
The standing of the prior story is shown by the make up in the appendix on pages 84 and 85 for comparison.
On 85 is a first story, on 84 is a story complained of.
We go back to Lucy Weir, she says that she found out about this story, typed it up that night and for some reason, unexplained, she called it in the next day.
But in her conversation, we got -- they got into a big discussion about the dateline, a story being changed from Gainesville admittedly by Mr. Myer that this city was changed from Gainesville to Inglis.
He had written many stories about the plaintiff who lived in Crystal River, was the mayor of Crystal River and he knew was in Crystal River.
As I say, this whole text of this testimony shows conclusively when you refer back to the testimony of the plaintiff on page 30 of the appendix, down at the bottom of the page, this was a testimony of the plaintiff put on in chief.
“Mr. Damron, have you ever had in the case, called Ocala Star-Banner regarding this news publication?”
Answer, “Yes, I've called the Ocala Star-Banner.”
Question, “When did you call them?”
Answer, “Back somewhere in 1965, I believe it was about October, if I am not mistaken.”
Question, “Who did you talk with?”
Answer, “I talked to Mr. Louis Phillips.”
Question, “Do you know who Mr. Phillips is?”
Answer, “Yes sir.”
Question, “Or was at that time?”
Answer, “Yes, sir.
He was the vice president publisher and that's the one I asked to speak to and I asked to speak to the general manager, Mr. Dunn, and they got me on the phone and got him on the phone.”
Question, “What was the substance of your conversation with Mr. Phillips?”
Answer, “I asked him to send someone to Crystal River to publish a news as it happened, true facts and not editorial on the subject they write on.”
Question, “What prompted you to call the Ocala Star-Banner?”
Answer, “So, many mistakes in the paper.”
The newspaper publisher had been informed that his publications were coming out erroneously.
This is the -- this as I see is a classic case.
Based on the evidence in the record, we have to go no further than to that, to show that it was malice in the publication of this story timely in the middle of an election, unlike a story which the evidence also shows was at the passing over part occurred 13 days before the news story was broken.
It was a re-publication of a prior composition of the same newspaper, published timely right in the middle of an election.
Justice Byron R. White: Didn't your District Court of Appeal affirm this judgment only on the basis of New York Times that was --
Mr. Wallace Dunn: What happened on the --
Justice Byron R. White: -- it was not applied -- was it not to be applied?
Mr. Wallace Dunn: It affirmed on that basis because that was the point presented by the appellant at that time.
Justice Byron R. White: And there was no further review in the Florida Court?
Mr. Wallace Dunn: The Florida case was appealed to the Florida Supreme Court.
They reviewed the decision and dismissed it of their own motion.
Justice Byron R. White: And so that we have it coming here as judgment in the Florida Court saying that on these facts, New York Times -- the New York Times rule is inapplicable?
Mr. Wallace Dunn: That is correct, yes sir --
Justice Byron R. White: And --
Mr. Wallace Dunn: -- based on the --
Justice Byron R. White: -- you're arguing here that it is applicable, but it was satisfied?
Mr. Wallace Dunn: I'm saying three things Your Honor.
First, the defendants admitted their liability before we ever tried this case at a time when the decisions of this Court were well-known and well-available to them to make any objection as to this rule at the time of trial.
Justice Byron R. White: They admitted their liability?
Mr. Wallace Dunn: Yes, sir.
Chief Justice Warren E. Burger: But only for compensatory damages?
Mr. Wallace Dunn: Yes, sir.
The jury then and as pointed out earlier also Chief Justice Burger, we have this Florida statute that prohibits the award of punitive damages unless if the publication has been retracted and the jury made this determination that it was properly retracted.
Justice Byron R. White: It's the only evidence of admitting liability and not relying on New York Times that material which you pointed out to us --
Mr. Wallace Dunn: Yes, sir.
Justice Byron R. White: -- In the appendix?
Mr. Wallace Dunn: That's the only matter of record, yes.
Justice Byron R. White: There never was a request for any objection to judges instructing the jury on liability?
Mr. Wallace Dunn: No sir.
We went strictly on the issue of damages and the perpetration of the instructions.
Chief Justice Warren E. Burger: Can you enlighten us on page 80 whether the omissions of the bottom of the page after the judge's statement, “Well, I think liability as to compensatory damages is admitted in this case, what dialogue, what colloquy took place after that?”
Mr. Wallace Dunn: We neither went into a discussion of the type of damages to be awarded.
Chief Justice Warren E. Burger: Well then I should think that's quite relevant to the question that you have pressed on us that liability for compensatory damages was admitted and perhaps you want to supply that permission from the record.
Do we have it here?
Mr. Wallace Dunn: We have it right here and I'll be very happy to supplement it Your Honor.
Justice Byron R. White: Well, it may be that you're quite right that he should have been -- that the newspaper should have been precluded from raising this issue which they haven't raised at trial, but the Florida Courts under the Florida procedure doesn't seem to -- don't seem to have a taken that course.
The District Court of Appeal has said -- has taken issue and decided it?
Mr. Wallace Dunn: That's what I was trying to explain sir.
At the time this case went to the District Court, the only point that was urged on the District Court was New York Times versus Sullivan.
Justice Byron R. White: Well, I know but if the --
Mr. Wallace Dunn: And the argument at that point was that the libel complained of was a perjury charge unconnected with any office sought or held, that it was not within the purview official conduct.
Justice Byron R. White: But if the New York Times issue was out of the case because they admitted, they had admitted their liability, now why would they -- why would the Florida Court even deal with the issue?
They would say you have waived the question, you've admitted it?
Mr. Wallace Dunn: Your Honor, I mean Mr. Justice White, I'm sorry I cannot read into the minds of why the judge wrote that opinion they did, but it's obvious because the way in which they went over the directed verdict aspect of it, they didn't even get consideration --
Justice Byron R. White: If the justice knew that we shouldn't reach this New York Times issue because the newspaper admitted that it didn't apply and yet the case comes here from the Florida courts on the assumption, on a wholly different assumption?
Mr. Wallace Dunn: I brought this point up in my reply for the petition of certiorari.
Justice Hugo L. Black: How long was it exactly after this article was published before the election took place?
Mr. Wallace Dunn: 15 days.
Justice Hugo L. Black: 15 days.
Mr. Wallace Dunn: Yes, sir.
Justice Hugo L. Black: Now, which is it, which office was it he claimed that he was defeated on account of that article?
Mr. Wallace Dunn: The evidence that went into the trial and I might point out this point, all the several -- there was two offices.
He held the office of mayor at the time of this election that we're speaking of.
He was running for the office of tax assessor.
Justice Hugo L. Black: In the county?
Mr. Wallace Dunn: In the county, yes sir.
Justice Hugo L. Black: How many voters are there?
Mr. Wallace Dunn: I believe the ballot as returned somewhere in the neighborhood is 12,000 as I recall.
Justice Hugo L. Black: How big, I mean --
Mr. Wallace Dunn: And he ran for a third --
Justice Hugo L. Black: How big is the neighbor area?
Mr. Wallace Dunn: The area of Citrus County?
Justice Hugo L. Black: Of the county, his running in.
I'm asking because frankly I can't understand myself, how it could be possible for a man to have a charge like a mayor and then recall, admitted that it was wrong and then failed to win?
Mr. Wallace Dunn: He ran a very poor third because the circulation of the retraction was so poor.
Although, he went on himself and tried every way he could.
We didn't have television down there or radio stations.
Justice Hugo L. Black: Well, that seems a serious thing to me down in Florida?
Mr. Wallace Dunn: Well, in this particular county politics gets really hot down there in that particular county, Mr. Justice and --
Justice Hugo L. Black: Didn't the judge have any civil rights case?
Mr. Wallace Dunn: Civil rights case is passé in this thing and the only reference to civil rights we had in this thing was the original case that the brother James Damron was a witness in.
It's totally remote to anything involved here.
Justice Hugo L. Black: Well, I know a little bit campaigns and I just couldn't imagine how a man would ever a think like that said about him and prove it wasn't true and then went overwhelming it?
Mr. Wallace Dunn: It would seem so.
The communications are very poor in that county and politics was well fought.
Justice Hugo L. Black: But a candidate can get things out very quickly if he has to by searching for anything.
Mr. Wallace Dunn: The record didn't show this.
Justice Hugo L. Black: What?
Mr. Wallace Dunn: The record did not show this.
He had an off and everybody went down on this man immediately when this publication came up.
This is a well read newspaper in this particular county although it was not published in that county.
Justice Hugo L. Black: But you would read later too if it was read the first time, why wouldn't it be read --
Mr. Wallace Dunn: The record shows that the retraction was printed in the lower right hand corner, a very small headline.
This was one of the issues in the trial as to whether the headlines constituted a ground for having punitive damages and the jury held not.
Justice Hugo L. Black: When he published it in the lower right hand corner, the smaller headline, why didn't they go them and complain again, and insist he publish it differently.
Mr. Wallace Dunn: They did, he tried everything he could.
And as pointed out --
Justice Hugo L. Black: Did he publish -- how many times did he published?
Mr. Wallace Dunn: There was a retraction published the following day.
There was a letter that Mr. Damron wrote to the Star-Banner which was published in the letters to editor, which also would have shown a retraction and then there was a commentary letter by one of his friends that was written.
Justice Hugo L. Black: Well, I don't know that that governs but I have just seen those things kick back on people so often when they make charges that are not true?
Mr. Wallace Dunn: This is true sir.
Justice Hugo L. Black: It seems strange to me that it didn't help him instead of hurting him?
Mr. Wallace Dunn: Not only did he lose this but he also lost his manorial job which more or less an honorary position, but he lost it in the next election which was held on an that basis.
Justice Hugo L. Black: How many times has he been elected as mayor before?
Mr. Wallace Dunn: Four times, I believe sir.
Justice Hugo L. Black: Maybe -- I don't see how they could attribute [Attempt to Laughter] that to the article?
Mr. Wallace Dunn: I can only go for the record and the indication was that it was very detrimental to him.
Chief Justice Warren E. Burger: I suppose that --
Justice Hugo L. Black: But he got beaten?
Mr. Wallace Dunn: He sure did.[Attempt to Laughter]
Chief Justice Warren E. Burger: I suppose at this stage, the posture of the case is that the jury thought that he had lost these jobs because of the defamatory statements?
Mr. Wallace Dunn: It's not in the record and I don't like to go outside the record but I will – I will say this --
Chief Justice Warren E. Burger: But you don't have to go outside the record, do you?
The jury's verdict speaks for itself.
Mr. Wallace Dunn: The jury's verdict does speak for itself but for one of my opponents closing argument, we both used the analogy to the jury, you can't look in a crystal ball until whether this man would ever won this election and we both argued this point of the jury and I think the jury did not.
This is only an opinion on my part could have considered because we both hammered it home and this is a -- it would be a strictly a conjectural damages, there's no question about it.
Justice William J. Brennan: Mr. Dunn, may I just look again at pages 80 and 81 with you?
Mr. Wallace Dunn: Yes sir.
Justice William J. Brennan: I gather, in your argument that there was an admission of liability?
Is this, what you suggest that judge states when he says, “Well, I think liability is to compensatory damages as admitted in this case?”
Mr. Wallace Dunn: Yes, sir.
Justice William J. Brennan: Well, now what -- Mr. Aires was your adversary?
Mr. Wallace Dunn: Yes, sir.
Justice William J. Brennan: What does this mean over at 81? I notice there's a lot of omissions but by the Court that's right, and whether or not the plaintiffs suffered any damage by reason of it is a matter for them to decide.
Mr. Wallace Dunn: Right.
Justice William J. Brennan: Mr. Aires in other words, I don't take it that your ruling comprehends an instruction by you to the jury that they must return a verdict for the plaintiff because of the publication standing alone without more?
Mr. Wallace Dunn: That is correct sir.
Justice William J. Brennan: Well, doesn't that imply that there's no concession of liability or not?
Mr. Wallace Dunn: The format of the art -- of discussion with the Court at this particular point was whether the Court was going to tell the jury and I believe this is what Mr. Aires was after.
You get to return a verdict even if it's only for one dollar and the Court said, No, I'm going to tell the jury that you have admitted liability, but whether they bring in any damages is strictly within their own prerogative.
Justice William J. Brennan: Well, now where and what follows, Mr. Dunn that 81 to 83, I notice there are omissions.
Did the judge tell the jury that liability was admitted?
Is that --
Mr. Wallace Dunn: He told the jury that he had directed a verdict for the plaintiff.
Justice William J. Brennan: Would you point that out to me?
Mr. Wallace Dunn: It's not in the instructions.
I believe that are in the appendix.
Chief Justice Warren E. Burger: I think that you will find it if I may suggest it in your brief in opposition to petition for the writ in the first place on page five, in that colloquy even though it's not complete Mr. Aires, your opposing counsel said, he still has to prove his damages.
He still has to prove his damages, its part of the matter Justice Brennan just referred to as represented by an omission in the appendix.
Mr. Wallace Dunn: Yes, sir.
Chief Justice Warren E. Burger: You argue I take it that this is consistent with your position that he had waived any claims about liability.
Mr. Wallace Dunn: That is correct sir.
Chief Justice Warren E. Burger: Well, do you think we can rely on the complete record when we see in this.
Mr. Wallace Dunn: Yes sir.
As I take it, Mr. Chief Justice, you would like me to have a transcript here.
Chief Justice Warren E. Burger: Do you know whether it's here?
Mr. Wallace Dunn: I have copy here.
Yes, sir, with me.
Chief Justice Warren E. Burger: It should be left with the clerk if it isn't already on file.
Mr. Wallace Dunn: Alright sir.
Justice Potter Stewart: The original record is lodged with the clerk?
Mr. Wallace Dunn: Yes sir.
Justice Potter Stewart: Unless our rules have not been followed in this case?
Mr. Wallace Dunn: Yes sir.
Thank you, sir.
Justice Byron R. White: I still am being puzzled by the acts of the Florida Court of Appeals.
It seems to me that if the Florida Court read the record and certainly it should be authoritative on how to read that record for purposes of the Florida law.
If Florida court had read the record as indicating that the newspaper had admitted liability in the sense that New York Times applies but we have published maliciously.
Why would the Florida Court ever have affirmed on the basis, not on that basis, but on the basis of the New York Times rules has no relevance to this case?
Mr. Wallace Dunn: Well, I cannot answer the question.
Justice William J. Brennan: Well, on that same statute Mr. Dunn [Attempt to Laughter] did you oppose on the appeal to the part of Florida Court of Appeals?
Mr. Wallace Dunn: Yes, sir.
Justice William J. Brennan: And did you -- was one of your arguments that why they can't have an appeal because they conceded liability?
Mr. Wallace Dunn: No, sir. It was not.
Justice William J. Brennan: You did not make that argument?
Mr. Wallace Dunn: Yes, sir, I did not.
Justice Byron R. White: Because the Florida Court of Appeals starts right out and says it's contented here that --
Mr. Wallace Dunn: It's correct.
Justice Byron R. White: -- the New York Times rule requires the proof of malice and there wasn't any --
Mr. Wallace Dunn: Yes, it's correct.
Justice William J. Brennan: You want to answer this question, don't Mr. Dunn, but why didn't you take the position in the New York -- in the Florida Court of Appeals that they conceded liability?
Mr. Wallace Dunn: The reason the position wasn't taken, we went out in the left field of a ball park about that time and got off on New York Times versus Sullivan and it was at foreign language to me at that time and I was taking the position at that time that he was trying to say, yes, maybe we admitted liability, but we feel that these are the keys as governs, that's attack it to him.
Rebuttal of Harold B. Wahl
Mr. Harold B. Wahl: May it please the Court.
I wasn't in the trial of this case and I'm in the same position that you gentlemen are.
I have to rely on the record and the record absolutely shows that there was no concession of liability.
Now, to answer your question --
Chief Justice Warren E. Burger: What do you say that Mr. Aires meant when he said at page 5 of the opposition to cert, he still has to prove his damages?
Mr. Harold B. Wahl: That's because the Court had ruled against us.
Now, as I gather what happened, Mr. --
Chief Justice Warren E. Burger: Did he say, when the Court -- when the Court announced, I think liability is admitted in this case, did he say anything?
Mr. Harold B. Wahl: I don't know what he said.
The record, we have a small town court reporter and I don't know how accurate his reports are.
All I knew is what may have said as told me that he didn't concede any liability, but I can't tell you why he didn't raise it on the District Court of Appeals.
In the District Court of Appeal, I had Mr. Aires with me and Mr. Aires was there to stand up and defend himself, had there been any accusation that he had waived.
Mr. Aires participated in the appeal to the District Court of Appeals, signed brief and was in on that appeal and he could have defended himself, had there been any charge.
Chief Justice Warren E. Burger: Well, are you suggesting that the Florida -- an appellate court in Florida would have taken some testimony on the subject at that stage of proceeding?
Mr. Harold B. Wahl: Well, it wasn't raised.
Now, let me --
Chief Justice Warren E. Burger: Wouldn't the Court rely on the record?
Mr. Harold B. Wahl: And that nobody ever suggested to the District Court of Appeals that this point had been raised and it haven't been raised, I mean, it had not been waived as the record itself would show.
Why on earth would the Court look at page 17 of the appendix, look at the order.
When I got into the case that moved for a new trial or judgment non obstante veredicto on New York Times, read the paragraph two.
The Court specifically says, the decisions of United States Supreme Court and so forth relating to public officials or public figures in the official conduct of their position or office are not applicable to this cause of action and so forth.
Now, why would the judge have entered that.
He would have simply have said well your motion for new trial is denied because your trial counsel admitted liability and then when it gets over to the District Court of Appeals as Mr. Justice White says, why would the whole opinion have been on the basis that we agree with the trial court that New York Times has nothing to do with the case if trial counsel had admitted liability.
It's just something I don't blame my friend for bringing it up but it is unsupported by the record and all I can tell you is that, the more you tried the case, though he didn't concede liability.
Justice John M. Harlan: But isn't there a conclusion obtained pending liabilities (Inaudible) covers the article which is the case of mistaken identification and the liabilities as to the consequences in terms of (Inaudible) to the problem?
Mr. Harold B. Wahl: I think that clear, I think --
Justice John M. Harlan: That's all there is to it, isn't it.
A direct verdict attached to as so far as liability for publishing the article is concerned the only issue that went to the jury was quantum of damages?
Mr. Harold B. Wahl: That's correct.
Justice John M. Harlan: And your issue up here is simply whether or not damages are to be measured under New York Times rule or under state law?
Mr. Harold B. Wahl: That's right.
Justice John M. Harlan: That's the whole case, isn't it?
Mr. Harold B. Wahl: That's correct and we take the position that plaintiff's own pleadings have brought him under New York Times.
Justice Byron R. White: What would have been the normal Florida rule or law if a -- if on this appeal to the District Court of Appeals where your side claimed the benefit of New York Times, the other side had come back and said, “Awfully sorry, this issue is not on the case because there were no objections to the instructions, no request for an instruction on New York Times, although, this case was tried after New York Times and the appellant isn't entitled to have the case reversed on the basis of New York Times. Now, what is the Florida law about it?
Mr. Harold B. Wahl: I think the Florida Court of Appeals, had this point been raised in the District Court of Appeals, the District Court of Appeals would have looked at the record and had it found that the trial counsel Aires did what my friend here accuses him off they would have said that at that instance.
Justice Byron R. White: Well, I know but the newspaper didn't request any instructions on New York Times?
Mr. Harold B. Wahl: The -- my own --
Justice Byron R. White: And he objected the obstructions based on New York Times?
Mr. Harold B. Wahl: Correct.
My only --
Justice Byron R. White: What's the Florida law about that in appellate court?
Mr. Harold B. Wahl: Were it not for the holdings of this Court as exemplified by Beckley, it doesn't make any difference to how bad a man's prior counsel makes of the case, Beckley versus Hanks.
This Court will go into it to itself and even though trial counsel has stood there and not objected to instructions and even though --
Justice Hugo L. Black: What was that case you mentioned?
Mr. Harold B. Wahl: Beckley versus Hanks which is cited in our brief.
You held in that case, that even though the newspaper counsel actually requested the wrong instructions, you would examine and if you would found the Constitution of the United States as exemplified the New York Times and succeeding cases had been violated, you gentlemen yourself, yourselves --
Justice Byron R. White: I don't know if the Florida appellate court said that, this issue is not an issue on appeal because it was not raised in the trial court.
I'm not so sure we would --
Mr. Harold B. Wahl: Well of course, I don't know about that, but that issue was not and that both the trial judge when I moved for a new trial and cited all these constitutional cases, there was no question.
He didn't say oh, I am sorry --
Justice Byron R. White: Well, let me -- let me ask you this.
Let's assume that we reversed and the case went back to the Florida District Court of Appeals.
Would the issue still be open as to whether the New York Times question had been waived in the trial court?
Mr. Harold B. Wahl: I don't think so because the issue wasn't raised then in the first place and I don't think you can go back.
I would certainly argue strenuously, I'm sure the Court would agree with me that he can't come up here and then go back and say, “Well, now I forgot to raise something here and now I want to raise it,” I don't think so.
Justice Byron R. White: Well, I know but you forgot to raise something in the trial court, you raised it in the appellate Court?
Mr. Harold B. Wahl: It was raised in the trial court and when I came in to the case and the first thing I did was to file a motion and under Florida procedure at that time, you can raise these points and filed a motion and not only had a motion, but cited the cases by name.
Justice Byron R. White: Well, that puts the issue in the case, you think?
Mr. Harold B. Wahl: Yes, I certainly do.
And there's no intimation and the Florida appellate courts felt that wasn't correct and the District Court of Appeals assumed that the issue was -- had to be properly preserved and wrote its entire opinion upon the one issue where they erroneously said that, official conduct of a public official was not involved, therefore, New York Times doesn't apply.
But I'm rather surprised what you gentlemen said about Beckley because you held in Beckley versus Hanks; In that case, the newspaper lawyers themselves had requested the own instructions.
And you said that these constitutional issues were of such importance that even though they haven't raised the issues, since they had in a motion for new trial raised the question as to whether suspicion in evidence was there that you would pass upon the question.
And here, I filed a motion for a new trial and went at all these issues and cited the cases and I wasn't at the trial but I say that this --
Justice Hugo L. Black: Have you read all of these records?
Mr. Harold B. Wahl: Yes sir.
Justice Hugo L. Black: All the evidence?
Mr. Harold B. Wahl: I read it sensibly.
This is the third view.
Justice Hugo L. Black: Any evidence to the point to its tending to try to prove damages upon any kind?
Mr. Harold B. Wahl: Well, the -- his whole testimony was that he had lost his -- that he had gotten into bad with the electorate, they wouldn't vote for him.
Justice Hugo L. Black: You mean that he got defeated?
Mr. Harold B. Wahl: Yes sir.
Justice Hugo L. Black: And is that all that's in there about damages?
Mr. Harold B. Wahl: Well, he says that the people didn't treat him as nice as they used to.
They kind of looked down at him when he passed by, and that he wasn't feeling so good anymore, and he'd lost some campaign contributions, and people said a man like that shouldn't run for office, that's all and the fact that he claimed that he lost some business in his garage that was run by the fellow who was indicted.
But New York Times, my own surmise to what happened is, is that trial counsel was not down so hard when he filed his motions to strike the New York Times damages as a public figure and moved to dismiss for one of malice.
He was thrown down so hard then that he didn't want to antagonize the judge and prejudice himself with the jury by raising more stuff before the jury or at the trial on which he was going to get nothing down again.
That's just mu own speculation as to why my friend Aires didn't say more, but this record does not support a concession of liabilities.
Justice Hugo L. Black: Is all of the record here or is it limited, what's here to what's in print?
Mr. Harold B. Wahl: No, we're --
Justice Hugo L. Black: Do we have all the records?
Mr. Harold B. Wahl: You have the whole record, you have the whole record.
You have everything as of course as is customary as Mr. Justice Harlan pointed out.
The trial counsel was so concerned with the punitive damage issue, he did and the fact there was no question that we did run the article, that we did run the mistake, that there had to be a concession that we had run the article and that we had made a mistake.
He conceded that, but he certainly did not concede that -- the question of liability.
Justice John M. Harlan: Well, what I understood with the record which I don't have tend to have read that (Inaudible) the briefs whatever happened in the record, this judgment cannot be supported on the merits of the ground and the dismissal would be by the Court of Appeals and by the Florida Supreme Court (Inaudible) because the District Court or the District Court of Appeals passed on the question that you are raising?
Mr. Harold B. Wahl: Mr. Dunn's argument --
Justice John M. Harlan: What you're arguing to us is that having passed on it, you're entitled to reverse it on the theory that if no damage is available at all, except under the scriptures and other (Inaudible) at that time.
Mr. Harold B. Wahl: Absolutely correct.
Justice John M. Harlan: Is that right?
Mr. Harold B. Wahl: Right and I'm very much disturbed that this opinion being in the printed southern reporter which says that, New York Times only applies to official conduct of a public official leaving out characters, matters of public interest and all the rest of the things that --
Justice John M. Harlan: Well, I understood the Court of Appeals admitted -- the District Court of Appeals that was (Inaudible) namely two things.
Number one is that the New York Times doesn't apply except for official misconduct or criticism of the conduct of the public official's office.
And secondly that in anyway, the -- there was nothing referred to the so-called libel that was related to his public office --
Mr. Harold B. Wahl: That's right.
They said, it didn't come within New York Times because it didn't relate to official conduct of public officials.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.