CANTRELL v. FOREST CITY PUBLISHING CO.

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Argument of Harry Alan Sherman

Chief Justice Warren E. Burger: We'll hear arguments next in Cantrell against Forest City Publishing.

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

Mr. Harry Alan Sherman: Mr. Chief Justice and members of Court.

May I address myself as quickly as possible to the nature of the case.

This is an invasion of privacy and may I respectfully suggest that it's an invasion of four types of privacy in one continuous event or series of events.

Although this is a contradicted by the circuit Court of Appeals, I believe I will point out that they are in error and by the brief of my distinguished and friendly opponent.

The facts in this case are briefly these.

The Silver Bridge, which was a span crossing the Ohio River from Point Pleasant, West Virginia to Colnago, Ohio and owned by the State of West Virginia collapsed on December 15, 1967 and 46 persons lost their lives in that disaster.

One of the people that was a victim of the collapse was Melvin Aaron Cantrell, the deceased husband of Margaret May Cantrell, the widow who brings this action.

None of the seven children of the Cantrell's was anywhere near the collapse of the bridge and was not involved in any of the news story that naturally followed that disaster.

The period of time between the collapse and the publication of the story, feature article, not a news story, was about eight months, just a little short of eight months.

A reporter of the Plain Dealer for City Publishing Companies paper and a young photographer came to the premises which incidentally were seven miles of a highway of a main highway.

They had to cross a quarter of a mile of private land to get to the residents on the day of their visit.

They were not invited.

They were not -- they did not notify anyone that they were going to come on to the premises.

They walked into the living room door when the young fellow, 13 years old saw men walking across there land open the door to look out to see and they walked right in.

This is the testimony of our plaintiff's witnesses; that is David Cantrell and the photographer Conway, one of the defendants, admittedly took 50 pictures.

Now in an hour to an hour-and-half, now he took more that didn't come up but 50 that came out, this is admitted, so he was very busy taking pictures.

Eszterhas the reporter supposedly talked to the older of the children in the house.

What he said nobody knows because he never showed up at depositions, although he was noticed twice.

He was not at the trial and did not testify.

Conway testified that he did not ask any questions and he said the arrangements for him being in this private residence, he presumed were made by the city desk or the reporter, he had nothing to do with that.

So that we have nobody from the defense testifying as to the contents of the story which was a feature story.

Admittedly, several pages of a Sunday supplement magazine section of the paper with a little over 400,000 in circulation, several of this photographs that were taken like Conway on the visit were rather large.

They're in Exhibit II accompanied the article and showed that children all in the very, very pathetic like, all bear foot, all dirty bedraggled, all at home, the mother wasn't there.

The mother had not known that anyone was to come to their premises, did not invite anybody, did not agree to any interview of her children age two to 16 at that time, and they were told immediately that is the reporter and photographer as they walked into the living room that mother wasn't there, they didn't know when she would be back and the story was written as if on interviewing Mrs. Cantrell, even describing her pathetic appearance which is completely fictionalized.

They were a great number of false statements in the article.

Now, of course it so and aroused the community that there was an article printed in a Dayton publication exposing the fallacies, the falseness of the article that was printed in the Plain Dealer.

Justice Potter Stewart: Dayton, Ohio?

Mr. Harry Alan Sherman: Yes Your Honor.

Justice Potter Stewart: Those hardly the community.

Mr. Harry Alan Sherman: No, no, I beg your pardon.

It was a Dayton paper however that wrote this --

Justice Potter Stewart: Story from what --

Mr. Harry Alan Sherman: The story about the community's reaction to the article, and that's an evidence if Your Honor please in Volume II.

So that the suit was brought as an invasion of privacy action, and of course the issues presented briefly are these.

I set them forth in more detail in my brief, but first, when we when into trial, it was made clear that we were not trying a defamation or libel suit.

We were trying an invasion of privacy which incidentally involved also a publication, and Judge Krupansky made it very clear that it was not only the false like publication which was the basis of this action that Page 99 of the Volume I of the appendix at the top of the page, district Judge Krupansky said it is the conduct of the parties prior to and at the time of the incident that gives rise to the issues in this case.

Justice William J. Brennan: And he went on then to --

Mr. Harry Alan Sherman: Yes.

Justice William J. Brennan: -- instructed the Time and Hill elements --

Mr. Harry Alan Sherman: Your Honor --

Justice William J. Brennan: -- can be established --

Mr. Harry Alan Sherman: He was really, not so sure as to what the law he had to apply in view --

Justice William J. Brennan: I know, but right following what he --

Mr. Harry Alan Sherman: But he did apply Time versus Hill because --

Justice William J. Brennan: I knew, and there was no objection to that, was it?

Mr. Harry Alan Sherman: As long I got to the jury in that court, I didn't object to anything.

Justice William J. Brennan: But you prevailed before the jury?

Mr. Harry Alan Sherman: Yes Your Honor.

We -- on special verdicts suggested by Mr. Warder, I was not even pres --

Justice William J. Brennan: But even under the Time and Hill test --

Mr. Harry Alan Sherman: Yes, yes.

Justice William J. Brennan: -- you prevailed on the evidence?

Mr. Harry Alan Sherman: Yes, reckless, disregard as to the truth or falsity as the only basis for our recovery and the jury found that it was so.

Now Your Honor it's very important -- in the first place, I want to tell you the issues first and then come back if you don't mind Mr. Justice Brennan.

The second issue is this –

Justice Harry A. Blackmun: Mr. Sherman, before you do that --

Mr. Harry Alan Sherman: Yes Your Honor.

Justice Harry A. Blackmun: There was a directed verdict as to a number of the minor plaintiffs --

Mr. Harry Alan Sherman: Yes.

Justice Harry A. Blackmun: And why did they go out and one remained in?

Mr. Harry Alan Sherman: Well Your Honor, Judge Krupansky found that as a matter of law, these children were too young to know whether they were hurt, whether they have any interpersonal feelings about the invasion of their privacy, and therefore since we --

Justice Harry A. Blackmun: Well, he left William in, didn't he?

Mr. Harry Alan Sherman: William -- David William was 13 at that time and he testified how he was hurt Your Honor, the others were too young to testify.

So, he was actually a witness in the case and I think a critical witness.

Justice Harry A. Blackmun: Well, Lolita Sue was 17.

Mr. Harry Alan Sherman: Yes.

She was 17 and he just -- she was -- he left them out and I was afraid to argue and carry that point up because on the question of damages and what's be strictly a real seriously legal question in our minds.

I discussed it with Margaret Cantrell.

We decided to let well enough alone without clouding the record of the issue on any other aspect of the case.

We were not allowed to go to the jury on punitive damages which I felt we might well go on the basis of the trespass, preceding the publication.

However in view of the judge's as strong feelings that New York Times versus Sullivan and all the other cases that came down since then that once it's published, we're running into Freedom of the Press as expanded by the Supreme Court's decisions and there was -- he was weary of allowing us to go into any punitive damages.

So, we were confined of actual damages and the jury verdict was $60,000.00, 45 for the mother; 15 for the boy.

The next issue that I'm raising is in such a case where we are really basing our concept of the case on the Supreme Court decisions, especially in Katz versus United States where this is -- we have the evolving law of privacy at the state level, and we are on a diversity basis.

Aren't we entitled to a Seventh Amendment right to jury trial to make a determination of the issues of fact?

And that's one of the issues that I raise on the appeal, and the last one -- and this one, I think is devastating when the Sixth Circuit says that when there is a conflict between the right of privacy admitted and the Freedom of the press, the right of privacy must give way to Freedom of the press because right of privacy is mentioned in the constitution, and Freedom of the press is, this is the wording of the court.

So that that's another issue that I raise and I believe in all fairness to my opponent, I should tell you the issues as the respondents have raised them.

First of all in their brief in opposition to the grant of certiorari, they raise one question, should certiorari be granted in an action for invasion of privacy based upon the publication of an article concerning a matter of public interest where the lower courts correctly applied the constitutional standard in accordance with the controlling cases of this Court, and where the lower courts found no evidence of known falsity or reckless disregard of the truth?

Now, that's not the exactly what the court found.

The Court found no malice.

The jury found that there was a reckless disregard, but then in their brief, they say very simply, does the First Amendment protect publication of a non-defamatory newsworthy article from a claim for false light invasion of privacy absent proof of calculated falsehood?

Now Your Honors, I point out that no one decided that there was any newsworthy where article here.

Although the Sixth Circuit points out that the difficulty for courts in deciding what's newsworthy saying that the editors, the publishers should primarily be the judges as to what the newsworthy.

But the editors and publishers in this case not one word was spoken in evidence or anywhere in pleadings that this was newsworthy.

It wasn't newsworthy.

There was no news article, no news event.

They admitted it was a creative feature article written by a smart young writer who made good copy and that's all it was to it.

Justice Potter Stewart: That concept is almost self-defining, isn't it?

Mr. Harry Alan Sherman: Yes Your Honor.

Justice Potter Stewart: If it's printed in the newspaper, some editor has decided that it's newsworthy.

Mr. Harry Alan Sherman: May I respectfully --

Justice Potter Stewart: -- it's not for the courts to review that judgment; it's a self-defining concept, isn't it, it's in the newspaper so its newsworthy?

Mr. Harry Alan Sherman: Mr. Justice Stewart, I was a newspaperman and an editor for 16 years, and may I respectfully say sir that that is just not the way they look at it.

Feature articles are completely one category of publication with all the protection of the First Amendment rights to feature articles and the creative literature; there is no question about that, but newsworthy?

No Your Honor.

There is a definition of news and there is a definition of newsworthiness and the Supreme Court of the United States has made that definition very clear as I point out my reply brief if Your Honor please in the classic case that it was decided here between International News Service and Associated Press.

There was a definition; news belongs to the public, news is not the property of anyone and the feature articles are protected, literally writings are protected, copyright laws and all the other things that go along with it.

We have very definite distinction in the field of journalism as between editorials, news, feature articles, so that -- and entertainment and other features of a publication.

Now Your Honor, I'm not saying that the broad basic constitutional right does not apply to all, but as far as news is concerned, I think that the primarily purpose of the First Amendment is to protect the public's right to know events and shape their thinking and judgments in accordance with the events that shape the news so to speak.

Now --

Justice Harry A. Blackmun: Mr. Sherman?

Mr. Harry Alan Sherman: Yes Your Honor.

Justice Harry A. Blackmun: Did you say you filed a reply brief?

Mr. Harry Alan Sherman: Yes Your Honor.

Yes, there's a -- I'm sorry.

There's a reply brief Mr. Justice Blackmun.

Unknown Speaker: (Inaudible)

Mr. Harry Alan Sherman: Immediately.

Justice Harry A. Blackmun: I have one, but --

Mr. Harry Alan Sherman: But a week after I got their brief.

Chief Justice Warren E. Burger: Well, while you are pausing here for a moment --

Mr. Harry Alan Sherman: Yes Your Honor.

Chief Justice Warren E. Burger: -- is there not a some kind of the – or is there some kind of a public interest in the consequences of a great tragedy of this kind, 46 people killed.

It might in turn have an impact on legislature, governors, mayors; everyone else to see that old bridges are replaced for example and/or kept in repairs so that these tragedies aren't repeated.

Is that in here somewhere?

Mr. Harry Alan Sherman: Mr. Chief Justice, ideally, it certainly should be ideally, practically, I'm the attorney also that's trying the Silver Bridge death cases in the State of West Virginia and they got a new bridge, but that's over the hill, and now they're just on with regular business.

They don't -- these things are not remembered.

The rights, if any, must be intact in the judicial process or -- they're forgotten until another tragedy occurs.

Chief Justice Warren E. Burger: Are they not remembered perhaps a little more if someone writes about them?

Mr. Harry Alan Sherman: If they write this way, if they write the way these fellows did, no, because they're calling him Hill Billy's people that had nothing to live for anyway.

They had wives and children, but that's all they had, that's quote from the article.

Hill Billy's bury their dead, the Hill Folk bury their dead, and to us -- to a Cleveland audience to Metropolitan audience outside the hills of West Virginia, no Your Honor.

I respectfully say that the history of these things show that interest, this personal interest is the curiosity of the satisfying of one's own reading appetites but not in doing anything to protect the poor folk that were the victims of the tragedy of this sort.

We have to depend on justice, not history to correct its own errors, and especially when we have to look to political changes in order to affect such history.

We can't wait for the democratic process to enlighten all our populous that serves on juries for example.

But Your Honor, I'm sorry, I went perhaps beyond in my philosophical statement to add on this question.

Nothing of that sort specifically was brought into the case as such except in the answer where they did raise public interest as one of the privilege basis for printing, okay?

Now, there's no question that there could be a legitimate public interest in the truth and I would subscribe to that of course.

There might be a very, very definite way of actual interviewing Mrs. Cantrell.

The interesting thing in this case is that the reporter who never showed up to explain why he went there uninvited and a new theory was interjected on the trial.

This absent reporter all of a sudden becomes a man who is free lancing.

Now, there was no affirmative defense that there was no employment.

There was an admission that there were unemployment in the answer, then, all of a sudden on trial, he's free lancing to separate the publication on the publisher from the illegitimate trespass of the reporter.

Chief Justice Warren E. Burger: Well, but then that defense if you could call it that didn't seem to have much impact on the juries, so it isn't the factor --

Mr. Harry Alan Sherman: Because Your Honor, because Your Honor I happened to have taken the deposition of Conway who clearly -- well, he talk one way in court, but the deposition just destroyed his credibility because he said he got authority from the city desk, and he was working as -- he was taking pictures not for Eszterhas, but as photographer for the Plain Dealer; that's what he was doing there.

And therefore Your Honor, a credibility was an important element in the determination of the jury, and that's of course I think fact finding as to -- is for the jury as my -- a very strong and --

Justice William J. Brennan: Mr. Sherman, if I don't interrupt you --

Mr. Harry Alan Sherman: Of course Your Honor.

Justice William J. Brennan: -- would you help me with something.

In the Court of Appeals opinion at page 125 --

Mr. Harry Alan Sherman: Yes.

Justice William J. Brennan: -- notwithstanding what we saw earlier as to the instructions that were given at page 99 --

Mr. Harry Alan Sherman: Right.

Justice William J. Brennan: -- there is his statement at the bottom of the page in the present case, the district judge made a finding that there was no evidence to support the claim that an invasion of privacy was done maliciously within the legal definition of that term, and over the next page, having correctly determined that there was no evidence of known falsity or reckless disregard of the truth, district Court should have granted the motion for direct to verdict as sole defendants.

Now, where -- I can't seem to find in this record, where is there any District Court finding that there was no evidence?

Mr. Harry Alan Sherman: There was a District Court denial of our right to punitive damage on the basis of no malice and all, that is --

Justice William J. Brennan: What kind of malice, New York Times malice or --

Mr. Harry Alan Sherman: Yes.

Justice Byron R. White: Or was that state malice?

Mr. Harry Alan Sherman: No, it didn't say.

Justice Byron R. White: It makes a lot of difference.

Mr. Harry Alan Sherman: Yes.

Well --

Justice Potter Stewart: And I should think your case here would be Mr. Sherman that the trial court instructed the jury precisely in terms of Time versus Hill, and that the jury brought in its verdict and that's the end of the matter?

Justice William J. Brennan: Unless there was no evidence to support the finding of Time and Hill malice?

Mr. Harry Alan Sherman: Except in Time versus Hill, you would have only the publication had no invasion, no trespass, no -- nothing like that --

Justice William J. Brennan: But that's my point Mr. Sherman.

The point is I just don't know where there's any finding that there was no evidence and it seems --

Mr. Harry Alan Sherman: No, he does make such a finding.

Justice Byron R. White: But where is it in the records that he denied your right to punitive damage, where is that?

I don't find in the printed record and --

Mr. Harry Alan Sherman: It's in the printed record if Your Honor please.

Justice Potter Stewart: It's there but there's no plaintiff --

Mr. Harry Alan Sherman: I beg your pardon.

Justice Potter Stewart: -- page 117.

Mr. Harry Alan Sherman: A hundred and --

Justice Byron R. White: Let me ask you, in your faith doesn't punitive damage depends upon the traditional kind of malice of the old will, an intent to do wrong?

Isn't that what's malice used in libel cases?

Mr. Harry Alan Sherman: Yes Your Honor, that's exactly it is.

In other words, whether it does harm or not --

Justice Byron R. White: The will --

Mr. Harry Alan Sherman: -- unless you can prove that there was some motivation to do harm, no malice as such.

Justice Byron R. White: But that's different, if that's a different kind of malice, then the New York Times comes out.

Mr. Harry Alan Sherman: Yes.

Justice Potter Stewart: That's right.

Justice William J. Brennan: And you have to prove New York -- or Time and Hill same thing kind of malice even to get compensatory judgment, irrespective of punitive damages, and you got one --

Mr. Harry Alan Sherman: Yes.

Justice William J. Brennan: -- and he refused to set it aside certainly implies that he thought there was evidence enough to support the finding that he told the jury they must find --

Mr. Harry Alan Sherman: Yes.

Justice William J. Brennan: -- and yet the Court of Appeals -- he made a find, there was no evidence?

Mr. Harry Alan Sherman: Well, there is no such finding and may I –-

Justice Potter Stewart: That is in quotation marks in the -- on page 125.

Justice Byron R. White: That's right.

Justice Potter Stewart: I cannot find it either.

Mr. Harry Alan Sherman: Within the legal definition of that term.

Justice William J. Brennan: It only goes on I gather --

Mr. Harry Alan Sherman: That's about the extent of the quotation within the legal definition of that term.

Justice William J. Brennan: Oh, he imputes at the top of page 126 having correctly determined that there was no evidence of known falsity or reckless to disregarded the truth, that's the Time and Hill standard.

The District Court should have granted the motion for direct to verdict.

Mr. Harry Alan Sherman: He made no such finding Your Honor.

It's absolutely no such finding.

Justice William J. Brennan: Maybe your colleague will tell us where --

Mr. Harry Alan Sherman: And I'm sorry I can't -- I was sure I had that everything cataloged, but I just can't find it quickly enough.

Justice Byron R. White: I suppose the transcript is here isn't it?

Mr. Harry Alan Sherman: Yes Your Honor.

This is -- the total a trial is in Volume I.

Justice Byron R. White: There is no other -- this neither the predicament?

Mr. Harry Alan Sherman: Except Volume II exhibit, that's right.

Justice William J. Brennan: This is all the evidence?

Mr. Harry Alan Sherman: Yes Your Honor, and there's -- you'll find that this was a case that was right down of the bone, there was no fan on it.

It simply had to -- we had to avoid the arguments on what whether the judge said this is it, this is harmless and letting it go to the jury and only this -- alright, what am I going to do?

Anyway Your Honors, I feel that there is one thing that really has to be aired, and that is this.

The second issue that is raised by the opponents that Mrs. Cantrell in effect waived the trespass, there is no such thing.

She was asked a specific question by my distinguished friend here at page 35 of the record.

In cross-examination, he said -- the Sixth Circuit says that she said these things, but it isn't, it's in the question, that's a double question and this is a woman, remotely hills of West Virginia without any education.

So isn't it fair to say Mrs. Cantrell that you objected to the Plain Dealer article not because of the publicity, but because of what it said?

Answer, yes sir.

Now, which question is you saying yes sir to?

There's only one -- the publicity is the article and what it says is the article, yes sir.

And they say because he implies that she didn't object to the publicity as distinguished from the article that therefore that was somehow a waiver of the trespass, and the Sixth Circuit says specifically that the man might have been guilty of a trespass, but the case went to the jury only as a false light trespass on the publication; it did not.

Page 102-103, as well as 99 which I pointed to Your Honors before, the case went to the jury as total package.

All the evidence went in on the basis of the intrusion of this young man into the home without any explanation or justification.

Justice William H. Rehnquist: Mr. Sherman, this was a diversity case?

Mr. Harry Alan Sherman: Yes.

Justice William H. Rehnquist: Were you proceeding under Ohio law of privacy or West Virginia law?

Mr. Harry Alan Sherman: Both, they're the same.

Justice William H. Rehnquist: They're the same?

Mr. Harry Alan Sherman: It's admitted that they were the same.

And of course now, there is at this point especially since Your Honors have decided the Gertz case and I studied that in it’s totality because I am learning as everybody else is learning in the United States, especially your lower court judges as to where we go from here on some of these cases which the common law is always made rather solid.

I want you to know that we got exactly and [Laughter Attempt] only what was granted as a compensatory award for paying something.

Here, we have three years after the event, Mrs. Cantrell is in the court room and she is asked about the effect on the children, they come home crying and so forth and she is embarrassed, everywhere she turns and how long did that go on?

It still goes on three years later.

Now, that a 400 and some thousand publication of a newspaper and these remote people, you can't get anymore private on the hills of West Virginia if Your Honors please.

And here is a family that had enough tragedy in its life, and she has problems raising seven children and she is doing well, very, very proud lady and working as waitress in the restaurant and doing well, asking nothing of anybody, refusing welfare and so forth.

And while she is away at work, her family is intruded upon and is exposed, hung up to dry because some young enterprising creative fiction writer decided to make a microcosm out of the Cantrell family's experience for all the world to believe that all of the families had the same result.

Now may I in closing just call Your Honors' attention to the very important case, Stanford versus States of Texas, where the Supreme Court points out very definitely the history of how we got personal liberty before the constitution, how we got privacy before the constitution and the two English cases.

And here which wiped out writs of assistance and similar warrants that gave broad authority to the ages ago into any body’s home and search for evidence and to deny any privacy to anybody, and here where the Sixth Circuit Court in 1974 cowed by what the law had become under the confusion following the New York Times versus Sullivan.

I respectfully say that was only that granting a license to private reporters and photographers, the second word is even more ominous than the first, to do the same thing that was wiped out 200 years ago before we became a nation and let them have any access without any answerability in damages in the court of law in the United States.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Sherman.

Mr. Warder?

Argument of Smith Warder

Mr. Smith Warder: Mr. Chief Justice and may it please the Court.

I think the passage that the Court wants is found on page 60 of the appendix where the trial court finds there has been no evidence in support of the charges that the invasion of privacy if in fact an invasion of privacy occurred was done maliciously within the legal definition of that term.

Justice Potter Stewart: Now, where is that in the record?

Mr. Smith Warder: Page 60 of the appendix, yes Your Honor.

Justice Potter Stewart: Yes.

Mr. Smith Warder: At the close of the Blamos case and that's where the court throughout the claim of punitive or exemplary damages because of the absence of malice under the Time Inc. standard, but erroneously send it to the jury on compensatory damages.

Justice Byron R. White: You said under the -- you said lack of malice, what do you suppose -- you say he met the Time Inc. --

Mr. Smith Warder: In the context if you read the record, this is the only malice we were discussing.

We never even discussed the common law standard of malice.

All we discussed was --

Justice Potter Stewart: Now, the common law standard of malice is all that had to do with the punitive damages, that's what this was about, punitive damages and that depends as I understand it under the West Virginia and Ohio law upon proving conventional malice, i. e. ill will, which is quite a different thing from New York Times or Time against Hill kind of malice.

Mr. Smith Warder: Your Honor, if you will compare this Court's definition of malice in the charge he gave the jury with this statement, I think it will become apparent that he was not talking common law matters.

He just was it --

Chief Justice Warren E. Burger: Then, why did he got to go to the jury?

Mr. Smith Warder: He mistakenly felt --

Justice William J. Brennan: Why did he require you to go on with your defense?

Mr. Smith Warder: I beg your pardon Your Honor?

Justice William J. Brennan: Why did he require you to go on with your defense because if this were related to Time and Hill malice, that's the end of the case?

Mr. Smith Warder: It should have been and that's what the court held --

Justice William J. Brennan: But I mean the objection that going out of the defense, you went on with it.

Mr. Smith Warder: We moved for directed verdict and we renewed it.

Justice William J. Brennan: I know, but he said without ruling gentlemen Mr. Warder, you may proceed with your defense and you did.

You're right and what you tell us is the interpretation of that.

You should have [Laughter Attempt]

Justice Byron R. White: Or after trial, he denied your, he granted in part, you moved and then denied in part.

Mr. Smith Warder: No.

He overruled it in its entirety Your Honor.

Remember Your Honor, at this --

Justice Byron R. White: Or I think more than -- that's even more clearer than he thought there's enough evidence for the jury.

This was --

Mr. Smith Warder: On compensatory damages, of course he did.

Justice Byron R. White: Well, that depended on the so called New York Times malice.

Mr. Smith Warder: But this is the confusion that was in the trial court's mind.

Now if I can get back to Your Honor's question, I'm a trial advocate.

I am faced with the proposition.

If the court says I am going to the jury on compensatory damages, I submit it is most dangerous not to put in a defense because I'm going to that jury anyway.

Justice William H. Rehnquist: Do you think the District Court may have foreseen our Gertz case before it was handed down?

Mr. Smith Warder: I don't think so Your Honor in all fairness.

Chief Justice Warren E. Burger: Well, does Gertz really had anything to do with this case?

This is a privacy case.

Mr. Smith Warder: In generally, yes Your Honor as I shall come to that.

Remember despite the protestation of my learned opponent, this is a Post like privacy case.

On page 35 of the record, the petitioner admitted that she was not offended by the existence of publicity, but by it's nature and if you will read the question preceding the excerpt which my opponent read, this becomes perfectly clear.

Now --

Chief Justice Warren E. Burger: Well, that parsing it pretty finely --

Mr. Smith Warder: No.

There are four --

Chief Justice Warren E. Burger: You're talking for a lay person who is not well educated.

I submit that it's pretty difficult for me to understand --

Mr. Smith Warder: Well, that's the project from the other way Your Honor.

It's not a commercial exploitation case.

It is not a case of the disclosure of embarrassing private facts.

Neither is it a case of an unwarranted intrusion.

Now, there are only four types of privacy, and this is all that remains, it has to be.

For that matter, commercial exploitation as I understand it was a laid to rest with this Court’s decision in the Pittsburgh Press case, but this is a privacy case which had it been brought as a libel case would not have gone to the jury because it is not libelous per se then there is no proof of special damages as is required in a per code libel case.

Now Your Honor, I would like to compare the state of the law in right of privacy in the libel and slander.

In the right of privacy case, truth is not a defense, in a libel case, it is.

At common law in the privacy case, it is a complete defense that common law if the matter is one of public interest.

Justice William J. Brennan: Mr. Warder, I noticed that the complaint sounds an action for malicious and defamatory libel.

Well what happened to that aspect?

Mr. Smith Warder: That was dismissed and abandoned.

It just never went to the jury.

It was tried on a simple privacy theory and counsel admitted that it his opening argument.

Justice William J. Brennan: Was there an amended complaint or is that the only concern?

Mr. Smith Warder: That's the only one.

Justice William J. Brennan: I see.

Mr. Smith Warder: Now --

Justice Potter Stewart: But everybody seems to agree that the complaint was in perhaps implicitly amended to --

Mr. Smith Warder: Right.

Justice William J. Brennan: And I notice incidentally in the complaint that on punitive damages, the allegation is the said publication, maliciously, falsely, blatantly and scandalously by trace plaintiff's dissident, that’s a different kind of malice isn't it than the Time and Hill malice?

Mr. Smith Warder: Yes it is.

Justice Potter Stewart: What page is that on?

Justice William J. Brennan: That's at page four.

Justice Potter Stewart: Thank you.

Justice William J. Brennan: Paragraph 6.

Mr. Smith Warder: Now, in a libel case in the light of Gertz, I have some doubts and so does the verdict lodged in the courts as to whether being a matter of public interest is any longer defense when we are discussing private persons.

Now, let's see where this diagrams out as to privacy and libel.

If there is a matter of public interest involved and if it be true, plaintiff can recover under either theory, but if it is not a matter of public interest and if it is false, if it's defamatory, then you can recover in the libel.

If it is non-defamatory, then you can still recover in a privacy action.

Now somehow here it seems to me that in this narrow context, Freedom of the press just does not exist.

Going further, if it's a matter of public interest and false, you can recover in libel but as I understand Gertz, only if it is defamatory on its face.

And finally, if it's not a matter of public interest and if it's true, you can still recover in a privacy action.

Now, there is something wrong here and it seems to me the touchstone is if I am sitting at the editor’s desk, if there is something in this article that rings the alarm that tells me this article has a propensity to offend, then perhaps I'd publish at my peril and I think I should.

But if I read an article that rings no alarm that carries with it no warning, if thereafter some jury is to tell me I owe damages, I have become libel without probable --

Chief Justice Warren E. Burger: Haven't you postulated a subjective test there, some things would ring a bell with some editors and the other editors wouldn't hear any bell at all?

Mr. Smith Warder: Well, if the alarm is there, he had better hear the bell.

I think it's an objective test.

It would be tested in the court by the judge that reads it and tells him whether there's an alarm in it.

That you can't get away from it.

Chief Justice Warren E. Burger: Then that's what you meant when you said the editors reads it that is peril?

Mr. Smith Warder: Right.

Chief Justice Warren E. Burger: Because he's got to wait and see what the jury and what ultimately this Court --

Mr. Smith Warder: No.

I said he publishes at his peril if the alarm is there, and I do not think it would be a defense to the paper if the editor was deaf and couldn’t hear the alarm.

I think so long as the alarm is there, then perhaps liability is warranted.

But absent of alarm, when you are publishing, you'll read this article, you do not see any propensity to the fame or to offend and you publish and after the fact, you get caught.

This is hardly consistent.

Justice William H. Rehnquist: Well, are you suggesting then that even a right of privacy consistent with the opinion in Time against Hill violates the First Amendment?

Mr. Smith Warder: I am contending that in a false like case -- well what I am really coming to Your Honor is I think the constitution prohibits a false like privacy case per se.

Justice William H. Rehnquist: That would certainly go further than the Time against Hill?

Mr. Smith Warder: It would go a little further here --

Justice William J. Brennan: It would go with the defense of Time and Hill?

Justice Potter Stewart: It will overrule Times against Hill.

Justice Byron R. White: Sure.

Mr. Smith Warder: No, Time against Hill was decided under a special statute where under truth was a defense.

You see, I am dealing with common law privacy where a truth is not a defense.

Justice Potter Stewart: It was not very clear to me about your argument as you pressing this down.

I'm not clear whether you're talking about the common law of defamation --

Mr. Smith Warder: I'm talking common law --

Justice Potter Stewart: -- or are you talking about the constitutional limitations upon the common law of defamation?

Mr. Smith Warder: I am talking the common law of defamation and the constitutional limitation as I understand them on the cause of action for libel.

And Your Honor to develop the thought as I understand it in a false like privacy case, there is never an alarm bell.

If there were, it would be a cause of action for libel.

This whole concept of a false like privacy is a concept designed by the common law of courts to give a plaintiff a cause of action who could not win his case if it were brought in libel.

Justice Byron R. White: let me -- I think -- we might be talking about two different things without distinguishing them.

You are suggesting that perhaps an editor wouldn't have an alarm bell in terms of whether this might embarrass a person.

But if you -- there's another aspect, whether or not there might be an alarm bell as to whether the statement is false.

Now, there might be an alarm bell when its false, but no alarm bell would make any difference even if it was.

Mr. Smith Warder: I want to make myself clear Your Honor.

Justice Byron R. White: Now, Time against Hill said there had to be at least recklessness with respect to truth or falsity.

Mr. Smith Warder: Right.

Justice Byron R. White: Now this jury found that as was -- as it had it under instruction that there was at least recklessness in terms of truth or falsity.

Mr. Smith Warder: Right.

Justice Byron R. White: Now, you can be absolutely right in what you said so far, but you haven't gotten to whether or not there is an alarm bell with respect to truth or falsity.

Mr. Smith Warder: I am thinking as to truth or falsity only.

I do not think it matters whether there is an alarm bell as to the propensity to offend.

If an editor never published anything offensive, he would have a name, be pen be paper.

I submit that the original Watergate story was offensive to many and still used to some, but wouldn't it be horrible, had it not been published.

You have to publish offensive things.

Now, I am speaking strictly of whether there is true or false --

Justice Byron R. White: -- why you distinguish between libel and the false like cases in terms of the constitutional protection.

Mr. Smith Warder: I'm trying to make it the same Your Honor.

I'm not distinguishing in terms of their constitutional protection.

I am distinguishing in terms of the old common law.

This is what I am urging is that the constitutional protection in a false like privacy case should be as broad as it is in the libel case.

Justice Byron R. White: Well, this then you get the protection to that little time construction theory?

Mr. Smith Warder: Your Honor of course, I did and the jury let this and the Sixth Circuit held that there was no evidence upon which the jury if they use that verdict.

Justice Byron R. White: Well, I take it that the Court of Appeal is right, you win, but what if they're wrong?

You haven't --

Mr. Smith Warder: That is a question.

You review the record.

If the evidence is there --

Justice Byron R. White: Do you loose then?

Mr. Smith Warder: I think we would Your Honor, but I don't think the evidence is there, a reckless disregards or acknowledge of the falsity.

Justice Lewis F. Powell: Are you saying Mr. Warder that we are down to the issue in this case as to whether or not there was sufficient evidence to support the jury verdict?

Mr. Smith Warder: I think that we have to come to it.

We think it's a matter of law that under the Time and Hill standard, there was no evidence of malice.

Justice Lewis F. Powell: You do not object to the instruction given by the court as I understand it?

Mr. Smith Warder: No.

We took no exception to the instruction; that is correct.

You know Your Honors in reflecting on this matter, there's another anomaly here.

Somehow, the law is wrong.

If Eszterhas had stood on the street corner and gathered the list and said orally what he wrote for the paper, there would have been no cause of action for privacy and no course of action for slander.

The words are not slanderous per se and there are no special damages.

Also, there would have been no cause of action because Eszterhas is protected by the Freedom of Speech Clause of the First Amendment.

Somehow, you put it in the paper.

You remember that the newspaper has two defenses.

One; freedom of speech, second; its own special Freedom of the press, and to get an opposite result from the printed word rather than the oral statement to me makes no sense.

Now, I submit I don't --

Justice Potter Stewart: -- in this Court I think that properly analyzed indicate that the two guarantees are not cognate that you might very well get a different result under a free press case than you would under free speech case.

And it isn't true that the invasion of privacy generally is something to which only media, publishers are liable?

Mr. Smith Warder: Generally --

Justice Potter Stewart: By definition it involves publicizing rather than merely an individual speaking?

Mr. Smith Warder: Professor Hetmerg even makes that flat statement in his book on Torts.

I don't think it's any longer true.

I have in mind the electronic devices which might now constitute an invasion of privacy, but which are beyond the scope of this case in which we need not consider.

Justice Thurgood Marshall: Mr. Warder, I have problem.

This material was gained by a trespass, is that right?

Mr. Smith Warder: No Your Honor.

Justice Thurgood Marshall: There wasn't a trespass --

Mr. Smith Warder: No Your Honor.

Had this been an action in trespass, there would have been the jurisdiction or amount for diversity case.

This gentleman was seen approaching --

Justice Thurgood Marshall: Now, was this a state trespass case?

Mr. Smith Warder: There's no trespass case at all.

The man is not a trespasser until it is made known to him that his presence is unwarranted.

Up to that point, he is at worst a licensee.

These people are no more a trespassers than the public --

Justice Thurgood Marshall: -- the licensee when the mother wasn't there?

Mr. Smith Warder: The children were there.

They were in charge.

Justice Thurgood Marshall: But they couldn't give license.

Mr. Smith Warder: They would, they were in charge of the property of course they can give --

Justice Thurgood Marshall: Children could give license?

Mr. Smith Warder: Certainly Your Honor.

Justice Thurgood Marshall: The two-year old?

Mr. Smith Warder: No, but the 17-year old --

Justice Thurgood Marshall: Is that the law of Kentucky?

Mr. Smith Warder: Well, I don't know what the law of Kentucky is, but I know that if I leave my children with a 17-year-old babysitter, she's in charge of that house until I get back.

Justice Thurgood Marshall: And she can give license?

Mr. Smith Warder: I would think so.

She is the possessor of the real estate until my return.

Justice Thurgood Marshall: But I thought the child said deliberately that mother is not here.

Mr. Smith Warder: He said the mother was not here, yes.

Justice Thurgood Marshall: Well I contend that as saying that the licensee is not here.

Mr. Smith Warder: No, they didn't say don't come in.

Justice Thurgood Marshall: The licensor is not here.

Mr. Smith Warder: They didn't say don't come in.

They didn't say please get out --

Justice Thurgood Marshall: They just said, but why did they say the mother was not here?

Mr. Smith Warder: Because they asked for it.

The reporters asked for Mrs. Cantrell.

Justice Thurgood Marshall: And you don't think that was a trespass?

Mr. Smith Warder: Not at all.

Chief Justice Warren E. Burger: Well isn't this the case sounding in violation of privacy in the nature of trespass concept --

Mr. Smith Warder: Or of the old --

Chief Justice Warren E. Burger: -- you trespass on the person's privacy --

Mr. Smith Warder: Was the old common law concept of course.

I was taken in terms of trespass to real property and I think that's what's been argued to Your Honors.

Chief Justice Warren E. Burger: Her whole complaint here is that your client trespassed on her privacy, in her household, in her family, in her tragedy, that's the essence of it, isn't it?

Mr. Smith Warder: No.

Her complaint is that we published her false statements concerning her.

Chief Justice Warren E. Burger: Well, you trespassed and then published the results of what you found or thought you found.

Mr. Smith Warder: Well Your Honors, I see I have sometime left but I have nothing to add to these remarks and if there are no further questions, I waive my right to --

Chief Justice Warren E. Burger: Very well.

Mr. Sherman, you have used all your time.

Rebuttal of Harry Alan Sherman

Mr. Harry Alan Sherman: Just if Your Honor please, I want to point out that my friend's statement on the alarm situation.

First of all, there was no denial of the falsity.

Plaintiff's case went down the line to prove that the articles, as the contents of the article were false, absolutely false.

There was no denial of anything that we said was false.

Secondly, at page 102, 103 --

Chief Justice Warren E. Burger: Does that become a burden after the jury has returned the verdict and to loose instructions?

Mr. Harry Alan Sherman: No Your Honor.

As far as I'm concerned, but when he argued that somehow or rather that if they publish a story, there the editor can't be held for falsity.

They didn't deny it was false.

Secondly, that Judge Krupansky told the jury that if they found, they had to find that the trespass and the actions of Conway and Eszterhas were within the scope of their employment that they were sent there rather than they did it on their own at page 102, 103.

So I wanted to just point that out Your Honor and thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.