TIME, INC. v. FIRESTONE

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Argument of John H. Pickering

Chief Justice Warren E. Burger: We will hear arguments next in 74-944, Time Incorporated against Firestone.

Mr. Pickering, I think you may proceed when you are ready.

Mr. John H. Pickering: Thank you Mr. Chief Justice and may it please the Court.

This case is here on certiorari to the Supreme Court of Florida to review decisions of that Court, upholding $100,000.00 libel judgment against the petitioner Time Incorporated and rejecting Time’s claims to the protection of the guarantees or freedom of the press and freedom of the speech under the Constitution of the United States.

The article in suit is a short one, reporting the facts of the divorce of the respondent, Mary Alice Firestone by her husband Russell Firestone.

It appeared in the Milestone section of Time magazine, a section which is used to record events in the lives of important people.

The article reads in its entirety as follows and I quote, “Divorced.”

Justice William H. Rehnquist: Where are you quoting from?

Mr. John H. Pickering: I am quoting Mr. Justice Rehnquist from pages 4 and 5 of our brief.

The article also is plaintiff’s exhibit 1 in the ten record at page 522.

I am quoting from my brief.

“Divorced,” by Russell A. Firestone Jr., 41, heir to the Tire fortune, Mary Alice Sullivan-Firestone, 32, his third wife, a onetime Palm Beach schoolteacher, on grounds of extreme cruelty and adultery, after six years of marriage, one son, in West Palm Beach, Florida.

The 17-month intermittent trial produced enough testimony of extramarital adventures on both sides, said the Judge ‘To make Dr. Freud’s hair curl.’

That brief report --

Chief Justice Warren E. Burger: Before you go on Mr. Pickering, I noticed in your brief you follow that with the reference to the Associated Press dispatch that came apparently after the Time Magazine was at least in the sequence indicate?

Mr. John H. Pickering: No Your Honor.

I am just -- I am coming to that.

The article published in Time Magazine was based on four items and the first item on which it was based is the Associated Press Dispatch to which you refer, which is quoted in my brief.

Let me come quick --

Chief Justice Warren E. Burger: You will deal with (Voice Overlap).

Mr. John H. Pickering: I will deal with those right now, Your Honor.

Justice William H. Rehnquist: Do you concede that the article was inaccurate?

Mr. John H. Pickering: No, I do not sir.

Justice William H. Rehnquist: Do you think that she was granted -- that her husband was granted a divorce on grounds of adultery?

Mr. John H. Pickering: On -- from the language of the decree itself which I will come to.

That is one of our six points.

This was a truthful report of a judicial decision and as such is protected under Cox Broadcasting, Your Honor.

That is not essential to our position, it is one of six points, any one of which we say we prevail on, but it is one and I do not concede that it is inaccurate.

I will come to that in due course.

Let me say why it is not inaccurate or set the stage as to why it is inaccurate by stating that this dispatch, this item was based on an Associated Press dispatch.

Mr. Chief Justice referred to an article on the New York Daily news and two dispatches from Times Miami Office.

Now, the Firestone divorce decree was handed down the late afternoon of a Friday, December 15, 1967 in Palm Beach County, Florida.

Within two hours after that, Time received this Associated Press dispatch in it is New York Office.

That dispatch stated that Russell Firestone had been granted a divorce from the respondent here, whom he had accused of extreme cruelty and adultery and the dispatch also described the judge’s statement about some of the testimony of extramarital affairs being of the nature which would make Dr. Freud's hair curl.

Chief Justice Warren E. Burger: But right there, Mr. Pickering, do you say that the Associated Press dispatch tells the reader the same thing that the Time Magazine --

Mr. John H. Pickering: No, it does not.

It does not, Your Honor and not become onto that.

The New York Daily news article was the next in the progression.

That was received in the early evening of Friday, December 15 by Time and that item is defendant’s exhibit 3 in the record at page 545.

That item reported also that Russell had been granted a divorce from his wife who -- but that said simply that he had accused her of adultery.

No reference to extreme cruelty, said accused of adultery and it again referred to the testimony about extramarital affairs.

At that point, Time decided to run a piece on this and it has sent a query to its Miami Bureau asking for further details, including the grounds for the divorce in the words of the judge.

Two responses were received to that query.

The first came from the head of Times Miami Bureau, Mr. Duncan, stating, I am giving some of the details requested and stating that news would follow.

That was received Saturday morning, December 16.

The second dispatch, received in response to that query, was from a Palm Beach stringer for Time, one Delaney ph).

That dispatch received nearly afternoon of Saturday, December 16, said, that is plaintiff’s exhibit 4 in the record, it appears in the tan copy at page 532, that stated that the technical grounds of divorce, according to Joseph Farrish, the attorney for the respondent Mrs. Firestone “were given as extreme cruelty and adultery.”

So Time then had from its stringer a statement as to -- from the attorney for the Mrs. Firestone what the grounds of divorce were?

With those four items, the AP dispatch, the New York Daily news article, and the two responses to its query, to its Miami Bureau.

Justice Thurgood Marshall: Did Time have asked for the Court record?

Mr. John H. Pickering: Time did not have at that point, Your Honor.

Justice Thurgood Marshall: Did it asked for it?

Mr. John H. Pickering: Subsequently, subsequently.

Justice Thurgood Marshall: I do not understand why the -- your -- the Time contacts down, they did not go, look for what they asked for?

Mr. John H. Pickering: The -- it was a Saturday.

The deadline for that edition of Time Magazine was that Saturday night.

It -- the decree had come down about 5 o’clock on a Friday.

Time was satisfied and I submit with the findings that were made below that Time was -- there was no actual malice on its part that it took, followed a careful editorial process, it took the reasonable precaution.

Justice William J. Brennan: What was the source of Mr. Duncan’s quote of the judge?

Mr. John H. Pickering: What?

Justice William J. Brennan: What was the source of Mr. Duncan’s quote of the judge?

Mr. John H. Pickering: The divorce decree itself as report --

Justice William J. Brennan: I am looking at the bottom of page 5, Judge James (Voice Overlap)

Mr. John H. Pickering: Not commented.

Justice William J. Brennan: And you have an -- in the quotes.

Mr. John H. Pickering: Right.

Justice William J. Brennan: Where did Mr. Duncan get that quote?

Mr. John H. Pickering: That came from, I believe the Associated Press dispatch and it is an exact quote from the language of the divorce decree itself which is plaintiff’s exhibit 2 and appears in the record at page 523.

Justice Potter Stewart: But you have told us already that Mr. (Voice Overlap)

Mr. John H. Pickering: Time did not have.

Justice Potter Stewart: (Voice Overlap) have not seen the divorce decree itself.

Mr. John H. Pickering: That is correct.

Justice Potter Stewart: So my Brother Brennan’s question is where did Mr. Duncan get this quote?

Mr. John H. Pickering: That quote, as far as I know, as far as the record shows, came from the Associated Press dispatch.

Justice Potter Stewart: In other words, he did not do anything in Florida for the Time that Time could not have done just reading that AP ticker in New York, is that right?

Mr. John H. Pickering: That is correct.

Now, Delaney, the stringer, did contact Judge Knot, the divorce judge, he contacted him late Saturday afternoon and verified a couple of quotes which Time -- which they had had from the divorce decree, but the testimony was that he did not ask nor did the judge tell him what the grounds for divorce have been.

Delaney was satisfied and we submit properly so he had from Mr. Farrish.

Justice Thurgood Marshall: What time -- when did Time Magazine first see the decree?

Mr. John H. Pickering: The record does not establish --

Justice Thurgood Marshall: After the lawsuit was filed, did it not?

Mr. John H. Pickering: What?

Justice Thurgood Marshall: After lawsuit was filed?

Mr. John H. Pickering: I think that is correct, Your Honor.

Although I cannot be categorically certain.

It was some time and I think that is all the record shows --

Justice Thurgood Marshall: But what --

Mr. John H. Pickering: It was sometime after the article -- long after the article perhaps that they got a copy --

Justice Thurgood Marshall: (Voice Overlap) cautious, editor ask a normal cautious reporter or stringer that I want the inside information on a Court decree, would not both of them assume that somebody would go to the guess what, Court, did you see it?

Would not that be normal?

Mr. John H. Pickering: No.

I do not think it is.

You can check with the attorneys.

You have the attorney for one of the parties saying that in her what the technical grounds were.

You had the AP dispatch which stated that a divorce has been granted that the wife had been accused on two grounds of extreme cruelty and adultery.

And you had a wire coming from the stringer saying that the attorney said so much.

Now, let me try to say that there should not be a rule that makes the difference in constitutional liability, depending on whether or not you have seen a copy of an appendix if in fact you have reported that opinion correctly.

Justice Byron R. White: You started out earlier, now you are at the point where you -- you are going to explain Time Magazine article was accurate, an accurate reflection of the Court decree and you say in your brief that the judge actually found adultery?

Mr. John H. Pickering: What I say is that that is a reasonable, that is an accurate, fairly and accurately reports what the divorce decree says.

The Time does not say --

Justice Byron R. White: If you are right, well it does not make much difference so, where you got the --

Mr. John H. Pickering: Exactly.

Justice Byron R. White: But if it is accurate, and I suppose.

Now, tell me -- give me the decree and tell me where there is a finding of adultery?

Mr. John H. Pickering: In the first place, the article does not say Mr. Justice that she was found guilty of adultery.

This is maybe semantics, but I think it is important to be absolutely precise.

The article itself says that she was divorced on grounds of extreme cruelty and adultery.

Now, the final judgment --

Chief Justice Warren E. Burger: (Voice Overlap) How does an ordinary reader read that?

Mr. John H. Pickering: What?

Chief Justice Warren E. Burger: Does an ordinary reader read it in any other way, that is what (Voice Overlap)

Mr. John H. Pickering: No, I say it is a matter of semantics but I wanted to be absolutely precise.

Justice Byron R. White: (Voice Overlap) That is what your stringer reported to you.

Mr. John H. Pickering: The stringer said the technical grounds for divorce.

Justice Byron R. White: Were adultery?

Mr. John H. Pickering: That is correct.

Now alright let us -- let us look --

Justice Byron R. White: What you had -- that was what reported to you?

Mr. John H. Pickering: Let us look at the final judgment.

Justice Byron R. White: So let me ask you this --

Mr. John H. Pickering: The -- page 526.

Justice Byron R. White: You say your stringer was correct too then?

Mr. John H. Pickering: Yes.

Justice Byron R. White: Alright.

Justice Lewis F. Powell: Mr. Pickering, before you go on, what is the relationship or was the relationship between the stringer and Time?

Mr. John H. Pickering: The stringer is the usual stringer relationship, Your Honor of someone who was available to do hourly -- work on an hourly basis --

Justice Potter Stewart: Paid on a piece-work basis?

Mr. John H. Pickering: Paid on a piece-work basis.

He was not an official part of the Time organization, but has been used as a stringer for various items.

He had been in the Palm Beach area, and therefore, he checked this out.

Justice William H. Rehnquist: Does the record show what his employment background -- what he did for a regular living?

Mr. John H. Pickering: Yes.

It is set forth -- he had been a reporter in the Palm Beach area, been a news broadcaster and his present job at that time was as a news commentator and as part-time.

But he had been in journalism one sort and another for over 20 years, Your Honor.

That appears at beginning on the record, page 346.

Chief Justice Warren E. Burger: Does the record show whether he read the Miami Herald of December 16 which -- in which the article itself said this, “The judge added that he discounted much of the testimony in the case as unreliable.”

Mr. John H. Pickering: No.

The record I do not believe shows that.

The Associated Press dispatch which was the thing that triggered the Time interest in that also contain that same statement about being discounted.

But, let me say, why this is an accurate report of what the judicial decree said.

Page 523 of the record is where the final judgment, the divorce decree begins.

In the first paragraph it says, and I will skip the immaterial parts, the cause came on for final hearing before the Court upon the wife’s second amended complaint, etcetera.

The defendant -- the defendant husband’s answer and counterclaim for divorce on grounds of extreme cruelty and adultery, so the husband counterclaim for divorce on grounds of extreme cruelty and adultery.”

The decree goes on at the bottom of page 523 to refer to certain testimony about the extramarital escapades of the plaintiff such a natures would made Dr. Freud’s hair curl, states that the Court is inclined to discount much of this as unreliable nevertheless, it is a conclusion in finding of neither party is domesticated --

Justice William J. Brennan: What does that mean?

Mr. John H. Pickering: That again -- that illustrates the difficulty Your Honor of --

Justice William J. Brennan: But does that mean that she is guilty of adultery?

That is a finding that she was guilty of adultery?

Mr. John H. Pickering: Not clear, not clear.

At that moment exactly, we would say that lack of domestication in the circumstances of this case, in the first place it was not a ground for divorce -- statutory ground for divorce in Florida at the time.

His counter --it recites the counterclaim on grounds of extreme cruelty and adultery and make --

Justice William J. Brennan: (Voice Overlap) they go on and define I gather domestication from Chestnut v. Chestnut? (Voice Overlap)

Mr. John H. Pickering: They refer that the parties were not domesticated --

Justice William J. Brennan: When the bride and groom are both devoid of a yen for domestication, the marital bark puts out to sea with its jib pointed to the rocks.[Laughter]

Mr. John H. Pickering: But the -- the final -- you get to the adjudication --

Justice William J. Brennan: I just want to know Mr. Pickering, are you suggesting that, that there is anything in that which imports a finding of that -- that the previous ground is on (Inaudible)?

Mr. John H. Pickering: No.

I am not.

I am not suggesting that necessarily comes from lack of domestication.

I say it could.

I say where that comes from then is page 528, Mr. Justice Brennan.

Where the judge says ordered and adjudged as follows.

One, that the equities in this cause are with the defendant, that defendant’s counterclaim for divorce be and the same is hereby granted.

What was the counterclaim for?

It was for a divorce on the grounds of extreme cruelty and adultery.

Justice William H. Rehnquist: But typically, in a pleading, you may seek a formal relief and urge ten different reasons for and the fact that the Court grants your prayer does not mean that it is affirming all ten grounds that you sought.

Unknown Speaker: I have never sought that (Inaudible).

Justice William H. Rehnquist: No.

Mr. John H. Pickering: The -- if this is -- when the language is this clear as the Florida District Court of Appeal found, it has said that Time carefully, fairly, and accurately reported the final decree --

Justice William H. Rehnquist: Well, the Supreme Court of Florida found -- the Supreme Court of Florida found otherwise.

So, you may have proved to us as a constitutional fact that the thing was accurate, but surely you cannot rely on the language of an inferior Florida Court to supersede the language of the Supreme Court of Florida?

Mr. John H. Pickering: I am saying that that is much closer to the mark, Your Honor, than the Supreme Court of Florida and in any event it is this Court’s function to decide that issue as a constitutional matter.

Justice William H. Rehnquist: Which is what we are trying to get at right now and I am asking you questions and hoping to get answers from you?

Unknown Speaker: Can you tell me Mr. Pickering, is alimony awardable to a defendant divorced on grounds of adultery in Florida?

Mr. John H. Pickering: My understanding, and again I am not an expert in Florida law, it is my understanding that alimony is not awardable and alimony was of course awarded --

Unknown Speaker: $3,000.00 a month on the paragraph four?

Mr. John H. Pickering: -- in this case.

Lack of domestication also.

Suppose Time had printed that the divorce was granted on grounds of lack of domestication which the is -- which is what the respondent is saying --

Chief Justice Warren E. Burger: (Voice Overlap) be here then, would you?

Mr. John H. Pickering: Well, I do not know.

The lack of domestication maybe a defamatory statement to -- packing as it does with this testimony and so on of un-marital --

Justice William H. Rehnquist: The least you could say that the decree said that, and it does not say what Time said it said?

Mr. John H. Pickering: Well, I must submit Mr. Justice that I think it affords a basis for saying that -- precisely that because it has said the counterclaim was granted.

Now, we say that it was a truthful report.

We also say that in -- at the worst, it is a rational interpretation of an ambiguous document.

Justice Byron R. White: What would the judge say if he did not find adultery, but he found cruelty, extreme cruelty and then he got down to saying, I am going to, well, I am going to grant you divorce, he would say I (Voice Overlap)

Mr. John H. Pickering: He could have said, I would grant it on grounds of (Voice Overlap)

Justice Byron R. White: Now he would say I would grant it on the counterclaim?

Mr. John H. Pickering: I think that it is perfectly open to responsible reporting, the complexities of reporting, judicial decisions, members of this Court well know what the problems are, that the press faces in matters of legal reporting and again I turn to the report of the decision of the Florida Intermediate Court of Appeals which I think put the knob of what we are wrestling with, saying that if the press were charged with correctly analyzing the legal intricacies of each news item, their pages would remain empty of substance.

Now, I say that Time did correctly analyze the divorce decree on the basis of what they had.

I further say that Time was not guilty of fault or negligence and the liability has been imposed here without fault.

Justice Harry A. Blackmun: In that respect, Mr. Pickering, was this jury instructed?

Mr. John H. Pickering: Only on truth, Your Honor.

All that went to the jury was the issue of truth.

The instructions appear at 585 (Voice Overlap)

Justice Harry A. Blackmun: So that, there is no instruction to this jury on the issue of fault?

Mr. John H. Pickering: On the issue of fault, that is correct.

Also it went to the jury with instructions that if they found Time was guilty of malice, they could impose punitive damages.

They awarded compensatory damages, but refused to find punitive damages.

Justice Harry A. Blackmun: But was it your position that if there is a lack in this record of an instruction on fault that you are entitled to a new trial?

Mr. John H. Pickering: No.

Our position is, Your Honor, as a matter of law that Time -- that the malice standard should apply here and also alternatively all of these are alternative arguments, let me just outline very briefly, what our legal points are that there was no --

Justice Harry A. Blackmun: Well, obviously I am speaking of the Gertz case which came along afterward and have you abandoned any position that you are protected in part by the thesis of Gertz?

Mr. John H. Pickering: By the which?

By The theses of Gertz?

Justice Harry A. Blackmun: Yes.

Mr. John H. Pickering: No, We take the position that there was liability -- liability was imposed without fault for three reasons.

One, the Time truthfully reported and were protected by Cox Broadcasting.

Second, that was no error of fault.

Nothing was found below.

No fault of any kind.

It was not submitted on negligence.

The Florida Supreme Court’s characterization of the article as an example of journalistic negligence rested simply on its statement that Mrs. Firestone was not divorced on grounds of adultery.

We say that --

Justice Harry A. Blackmun: What I am trying to get at is whether you feel you are entitled to an instruction on fault?

Mr. John H. Pickering: We submit that the editorial process disclosed by this record set -- discussed in our brief and commented on by the District Court of Appeal precludes finding Time liable as a matter of law in this case.

We have our fault arguments the last of which is that this was a rational interpretation of an ambiguous document.

The document, the ambiguities that are in it have already been pointed out, lack of domestication, what the grounds were, and the simple granting of the counterclaim.

Those are our three under know -- the lack of any fault.

Our other arguments are that --

Justice Harry A. Blackmun: (Voice Overlap) an instruction of a kind to which I referred?

Mr. John H. Pickering: If we would have to have a trial, yes.

We raised all of this.

Justice Harry A. Blackmun: This is what I am trying to get at is, whether you take this at least now as a secondary position?

Mr. John H. Pickering: Yes.

I would take that as a secondary position, Your Honor.

Justice Harry A. Blackmun: You might lose your primary one.

Mr. John H. Pickering: Exactly and I have three more primary ones before I am driven back to --

Justice William H. Rehnquist: Before you get to those, let me ask you a question about your response to Mr. Justice Blackmun.

Is there any reason why as a matter of federal constitutional law, Florida cannot provide for fact finding on the issue of negligence by its Appellate Court rather than having to submit it all to a jury?

Mr. John H. Pickering: No, as long as they properly decide as a matter of law whether there was or was not negligence.

Justice William H. Rehnquist: So, if there is sufficient evidence in this record to support a finding of negligence by someone, then the finding of the Supreme Court of Florida is adequate for constitutional --

Mr. John H. Pickering: Subject of course to the independent review of this Court.

Justice William H. Rehnquist: Certainly.

Justice Harry A. Blackmun: Yes, but I think you go beyond that, do you not Mr. Pickering?

You say in any event, the negligence of carelessness standard is not the proper one, that she is a public figure, and therefore, the standard that had to be applied was New York Times (Voice Overlap).

Mr. John H. Pickering: Yes, and we say for --

Justice Harry A. Blackmun: That is your --

Mr. John H. Pickering: Yes, that is our additional one.

We first say there was no fault for three reasons, which I have touched on.

We also say that and as I have said there was no finding of negligence below except for the Supreme Court of Florida and it was not submitted to the jury on any negligence theory.

And we say that in addition to negligence, an actual malice standard should apply for three reasons.

One, that this is a report of a judicial proceeding.

Now, our starting point for all of this is the long recognition this Court has given to the important function of the press and reporting on public proceedings in the judicial forum and the need to be protected in order to perform that function.

And if in reporting a matter of this kind, we do not come within the truthful protection of Cox Broadcasting, we say that there should be and here we would rely more strongly on Mr. Justice White’s concurring views in the Metromedia case that the actual malice standard should apply to reports of public proceedings.

We say, and that is particularly true, in the case of the litigants themselves in that proceeding.

That they can be decided to be public figures for the purpose of the New York Times --

Justice William J. Brennan: (Voice Overlap) what is it that makes that Mrs. Firestone a public figure in the New York Times sense?

Mr. John H. Pickering: Two things --

Justice Harry A. Blackmun: Other than the journalism profession itself made her such.

Mr. John H. Pickering: She began this litigation.

It was a sensational piece of a divorce proceeding that has spanned almost two years, received nationwide notoriety.

Mr. Firestone was a very prominent wealthy individual --

Justice Harry A. Blackmun: Received nationwide notoriety because the media itself gave her that notoriety?

Mr. John H. Pickering: That is correct.

But how does one become a public figure other than coming to the attention of the press in some way?

Justice Harry A. Blackmun: Oh! By becoming President of the United States, the United States Senator, maybe.

Mr. John H. Pickering: Then it becomes a public official, Your Honor.

Yes.

But the Gertz test, we submit is satisfied here for determining who is a public figure.

She has started this.

It received national publicity and we say that a rule to protect the press is required here where the -- in order to report on judicial proceedings we think it is a nice narrow manageable -- it is not the broad public --

Justice Harry A. Blackmun: (Voice Overlap) I guess she is not a public figure in the sense that General Walker was?

Mr. John H. Pickering: That is correct.

She is not for all purposes --

Justice Harry A. Blackmun: And she is not in the sense that, what was his name, Rosen -- you know, the Metromedia case --

Mr. John H. Pickering: The Metro, well Metro --

Justice Harry A. Blackmun: He was (Inaudible) in a police campaign --

Mr. John H. Pickering: But she is a public figure, Your Honor.

Justice Harry A. Blackmun: Only because, only I gather from what you said, only because this was a sensational divorce, involving people of wealth (Voice Overlap).

Mr. John H. Pickering: Considerable social wealth -- social prominence and wealth.

Chief Justice Warren E. Burger: Was she a public figure before she brought the lawsuit?

Mr. John H. Pickering: Yes.

She was a prominent member of Palm Beach Society as a wife of Russell Firestone.

Chief Justice Warren E. Burger: A public figure in the sense that it has been used in opinions of this Court?

Mr. John H. Pickering: Not for all purposes and for all things.

We do not have to go that far, Mr. Chief Justice.

We say that she is a public figure in the purposes and for the context of this case and that there is a concurrence of the interest in protecting the press and reporting on judicial proceedings so far as the litigants themselves are concerned.

Justice Harry A. Blackmun: I wonder if this is in queue to whether or not you succeed or fail here because if she has not a public figure, if indeed she is a private person in the sense of Gertz, then --

Mr. John H. Pickering: In the sense of Gertz, then the negligence standard would apply.

Justice Harry A. Blackmun: Well, then the Supreme Court of Florida have the option to adopt the Times’ malice test on the Gertz or the -- and they have apparently adopted negligence and all that is left in your case is whether or not we agree with you that (Voice Overlap).

Mr. John H. Pickering: Whether we agree that we were not negligent.

That is correct, Your Honor.

There is one additional malice point however and that is Mrs. Firestone was allowed to waive at the eve of trial withdraw her claim for damage to reputation.

We say that really should have been the end of the libel case at that time and we so urge.

We rely here on the Gertz’s case itself for saying that there must be proof of actual damage as a constitutional matter, the protected interest is reputation itself and having withdrawn that claim, she should not be allowed to press and that the actual malice rather that the actual malice test should then apply because you weigh in the scales.

The First Amendment rights and the rights of the party and when reputation is taken out as an ingredient of injury, the scale we say should come down on the balance of the preferred First Amendment (Inaudible)

Justice Thurgood Marshall: She was taking out completely reputation?

Mr. John H. Pickering: That is correct, Your Honor.

She waived it, took it out, we have pointed out, we have referred to a case in our reply brief in appendix A, the Cardillo case in the Second Circuit which we believe supports the idea that libel proof for people who have not claimed damage to reputation should not be – stay in Court in view of the First Amendment.

That is now officially cited and I would like to give the Court the citation, it is 518 F2nd 638.

Chief Justice Warren E. Burger: (Voice Overlap) What is the first?

Mr. John H. Pickering: 518, Mr. Chief Justice and on the matter of the stringer and the statement that came from him, we submit that Time was entitled to rely on that stringer despite the fact that there may have been a conflict between the attorney and the stringer at trial over who said what to whom.

We say that Time was just as entitled to rely on that stringer as the Associated Press was to rely on its reporter, Major General Walker had disputed, but this Court had found for the Associated Press in the Walker case.

Justice William H. Rehnquist: But in the Walker case we -- the Court found that there was no malice.

Here you would be using the same finding to urge it, including there was no negligence?

Mr. John H. Pickering: Yes.

But it seems to me it is a constitutional standard in either event --

Justice William H. Rehnquist: Yes, but it is not the same standard surely.

I mean, that will be -- less evidence will support a finding of negligence, it would support a finding of malice?

Mr. John H. Pickering: Certainly, Your Honor, and I say if we can establish malice, lack of actual malice, we should be home free under one branch of our argument.

We also submit that the evidence is not sufficient to find negligence here.

Unknown Speaker: Mr. Pickering.

Mr. John H. Pickering: Yes sir.

Unknown Speaker: Let us assume that the stringer or your office down there was admittedly (Inaudible), what kind (Inaudible)?

Mr. John H. Pickering: No, I -- here the Time --

Unknown Speaker: Let us assume the stringer was (Inaudible) and you agree and its say so on and so on. (Inaudible)

Mr. John H. Pickering: No, the stringer had nothing.

The persons responsible for that article Mr. Justice, those who are in editorial process for the people back in New York, the writer, the researcher and the editor and the knowledge of that stringer is not imputable to those persons.

I am very happy --

Unknown Speaker: To Time Magazine?

Mr. John H. Pickering: Or to Time Magazine and here I rely on the situation of the photographer in Cantrell against Florida City Publishing.

Unknown Speaker: What the argument here is you do not (Inaudible)

Mr. John H. Pickering: Yes, I do.

Unknown Speaker: The argument here was this; you knew what (Inaudible)

Mr. John H. Pickering: No, our argument on that point and it is spelled out in the reply brief quite fully.

Our argument is that we are relying on the report of the stringer.

We were entitled to and we did and that that cannot be actual malice and certainly it cannot be negligence either in our view and it is not imputed back to the people --

Unknown Speaker: (Inaudible)

Mr. John H. Pickering: Exactly.

Chief Justice Warren E. Burger: From that theory, a publisher is never liable for the negligence of his servants then?

Mr. John H. Pickering: Well, until it has come home to the people responsible for it, if they knew of the conflict, Your Honor and so on or if the person were a notorious -- there is nothing in this record to indicate they had no reason not to rely on the stringer.

He sent a straight cable into saying what the technical grounds for divorce were according to the respondent’s attorney.

Chief Justice Warren E. Burger: Is it reasonable to believe that the stringer had not read the Miami Herald account in which the judge -- the article itself pointed out that the judge said the testimony on the subject was unreliable?

Mr. John H. Pickering: Not that it was -- simply he was inclined to discount much of it as unreliable.

He did not say it was discounting it all and that is another reason why we were not negligent.

Chief Justice Warren E. Burger: Does that not put the reader on notice that he better check and see what the judge might have relied on?

Mr. John H. Pickering: Alright, why did they do?

He called up the attorney for the offended party, Mrs. Firestone --

Chief Justice Warren E. Burger: This is not what the attorney said, is not there?

Mr. John H. Pickering: That is correct, but that was not reflected or that was not known back at Times’ home office when they wrote the piece.

Justice Thurgood Marshall: Mr. Pickering, is there anything in the record about the relationship of this particular stringer? Was he a contract employee?

Mr. John H. Pickering: Yes, well no.

He was simply the usual relationship of stringer.

He was available to be called upon to do work for Time on an hourly basis.

Justice Thurgood Marshall: (Voice Overlap) sufficient position to let Time be sued for anything?

Mr. John H. Pickering: I am sorry, I did not hear.

Justice Thurgood Marshall: And therefore Time is excused?

Mr. John H. Pickering: I would take the same position --

Justice Thurgood Marshall: Because of a man, if he called that bad the same thing would be true?

Mr. John H. Pickering: I would take the same position, Your Honor, if it were the head of the Miami Bureau as long as there was nothing to put Times’ office back in New York on notice that something was wrong with that.

Justice Thurgood Marshall: How long has he been a stringer?

I mean, what makes him so reliable?

Mr. John H. Pickering: He had been in news work for a number of years.

His testimony appears beginning at page 346, it says, a stringer is usually someone who is employed full time elsewhere and works in a part-time capacity for Time magazine.

He says, I work part-time, not on any guaranteed salary?

No.

His entire background is gone into and this -- if a -- the person is responsible --

Justice Thurgood Marshall: But is he as reliable as a regular staff man at Time or not?

Mr. John H. Pickering: Until something comes to the attention of those who are responsible for the publication that he is not to be relied on, yes Your Honor.

Otherwise --

Justice Thurgood Marshall: Well, I gather from you that he is more reliable than a staff man?

Mr. John H. Pickering: No.

Justice Thurgood Marshall: You are not saying that?

Mr. John H. Pickering: Oh no, I am not saying that.

Justice Thurgood Marshall: Let us say he is in his special category.

That is all I want to hear.

Mr. John H. Pickering: The stringer is -- I would say that the head of the Miami Bureau’s information is not to be imputed back to those who were responsible for the organization any more than the stringer.

The knowledge really has to be brought home to the people who are responsible for what goes into the magazine.

I am sure they cannot shut their eyes to matters.

To answer your precise question about whether he had seen and your question about whether he had seen the Miami Herald, the best answer I can give there is that he had at least talked to the Associated Press people in checking this out and they had the same thing in the Associated Press dispatch that the judge was inclined to discount.

Much of this testimony is unreliable.

They did not rule it out and that is one reason we say that Time was not negligent.

Justice William H. Rehnquist: Well, actually what the stringer said was a lot more accurate than what Time said, was it not?

The stringer’s dispatch I think is hard to fault.

Mr. John H. Pickering: It says the technical grounds for divorce were extreme cruelty and adultery.

That in effect is what the Time article says on grounds of extreme cruelty and adultery, Mr. Justice Rehnquist.

Justice William H. Rehnquist: Well, I was reading Duncan I see --

Mr. John H. Pickering: Duncan says nothing about the grounds for divorce.

Justice William H. Rehnquist: Duncan is completely accurate as I see it, but he is not the stringer?

Mr. John H. Pickering: That is correct.

No further questions.

Chief Justice Warren E. Burger: Mr. Pickering, in order for you to make your plans, you may have observed we have taken a little bit of your time, we will enlarge the time of your friend and we will allow you three minutes -- make that four minutes for rebuttal.

Mr. John H. Pickering: Thank you, Your Honor.

Chief Justice Warren E. Burger: Your time will be enlarged correspondingly.

You may precede, Ms. Caruso.

Argument of Edna L. Caruso

Ms Edna L. Caruso: Thank you.

Mr. Chief Justice and may it please the Court.

In this case, I would like to stress at the very beginning that throughout the appellate process in the case, Time Inc. has never ever argued until today that it is entitled to any trial.

The briefs that have been filed throughout the Appellate Courts in Florida and the briefs that are filed here today solely urge that they are entitled to a judgment as a matter of law.

Now, that does not mean to say that I do not think the Court has the power to decide that any trial should be granted, but that question has never been argued by Time and has never been briefed.

Starting with point one on appeal, that is their argument that they truthfully reported a judicial decision and that this was an accurate reflection of what the divorce decree stated and we would simply point out to the Court that while the husband in this case counterclaimed for divorce on the grounds of adultery and mental cruelty, the divorce decree solely stated that the husband’s counterclaim for divorce was granted.

Now, they are argue that that allows them to assume that it was granted on all grounds and I think we all know that the only thing it allows us to assume is that the judge found in favor of the husband on one of the grounds.

Unknown Speaker: But did you not in immediate to the Court of Appeals, Ms. Caruso?

Say that at least it was ambiguous and would lend itself to a reading that it was based on adultery also to the contrary --

Ms Edna L. Caruso: I think the District Court of Appeal did hold that.

Unknown Speaker: What do we do with that?

Ms Edna L. Caruso: Well, Your Honor I think that --

Unknown Speaker: That is an interpretation by a State Court -- of your State Court decree?

Ms Edna L. Caruso: I think that Florida Supreme Court later overruled that and I think very clearly that the document was not ambiguous --

Chief Justice Warren E. Burger: Are you saying the Supreme Court’s in its opinion, the position has superseded all the 24, the Court of Appeals?

Ms Edna L. Caruso: Yes sir.

I think that any way in regard to this, in regard to whether the article adequately stated what was in the divorce decree.

In this case, the jury was instructed, there can be no recovery in this case if you find from the greater way of the evidence that the article as published had no different effect on the mind of the reader than the divorce judgment and/or that the article was substantially true.

And of course, the jury found in favor of Mrs. Firestone, and therefore, they found that the article did have a different effect on the mind of the reader than the divorce decree and if anything, we would submit that this was a question for the jury and the jury found against the decision that my opponent is urging here today.

Time Inc. argues that there was no, absolutely no evidence of negligence in this case on their part as a matter of law.

And we would submit to the Court that it is not true.

They first argued that, of course, their interpretation was correct and we submit that it was not, they argued that their editorial procedure was without fault, that there was no negligence.

In this case, we know that Time had received three documents, dispatches and articles and also a dispatch from Mr. Delaney who was their stringer.

The three articles and dispatches other than Delaney’s did in no way, we would submit, state that the divorce was granted on the grounds of adultery.

Each of those articles or dispatches stated that Mrs. Firestone was accused of adultery or her husband had counterclaimed for adultery.

They did receive the dispatch from their stringer and he stated that he had checked with her attorney and that the technical grounds for divorce were mental cruelty and adultery.

However, we would submit to the Court that the evidence shows that even then, regardless of the dispatch from Delaney that there were serious doubts in Time Inc.’s mind as to whether or not this was an accurate statement because there was testimony to the effect that a Ms. Nadasdy (ph), who was a legal researcher for Time was supposed to, after the article was written, take the article, and run what they call an accuracy check on the article.

And she was to make a determination that each and every word was accurate and it was supportable.

She did not mark the word adultery.

She marked the other words in the article, I think with the exception of a few, that she did not mark the word adultery.

We think --

Unknown Speaker: What is the significance of the mark?

Ms Edna L. Caruso: Pardon me.

Unknown Speaker: What is the significance of a mark, it is accurate?

Ms Edna L. Caruso: Yes, on top of each word, she made a little mark and that means that she had checked it out and it was her determination that that word was accurate.

Now, we think that this testimony clearly indicates that there was a serious doubt in her mind as to whether or not they had sufficient information to support that or whether or not it has sufficient sources to support the publication that Mrs. Firestone had been found guilty of adultery.

However, of course, we know that Time went ahead and released this publication stating that she had been found guilty of adultery and we would submit to the Court because the divorce decree was rendered on a Friday night about 5:00 and their deadline for publication was Saturday night at about 8:00, so they were pressed for time.

We think that that clearly indicates if not only negligence but a reckless disregard on the part of Time Inc. for going ahead in publishing the article when the employees did not even follow the requirement which they admitted, that Time Inc. imposed upon them to follow.

Chief Justice Warren E. Burger: I suppose you are taking the position of that that in any event, of course, the determination of negligence on the part of Time Magazine in New York as distinguished from its stringer in Florida?

Ms Edna L. Caruso: Yes.

Now, I was just getting ready to make that statement.

They argue that they should not be held liable and cannot under the law be held liable for negligence on the part of - cannot be held for liable for negligence of their stringer in investigating.

And we would submit to the Court that we are not here or have not been attempting to make Time Inc. account for the negligence of their stringer.

We are trying to make them account for the negligence of their own employees for going ahead and publishing this article when they were serious out in their mind that the article was correct.

These are the acts of negligence that we are attributing --

Unknown Speaker: At the home office?

Ms Edna L. Caruso: Yes sir.

Unknown Speaker: The people who actually authored the article (Inaudible)?

Ms Edna L. Caruso: Yes sir.

Their point too is the argument that this was a rational interpretation of an ambiguous document and of course, as you know, the first argument in my brief is that the Pape case is not even applicable to this case.

And perhaps for some of the comments here, I might see that you do think that it is applicable, but I think that the Pape decisions says that when have an ambiguous document, and the publisher reads that document and relies upon a rational interpretation of the language in that document, then there is no malice as a matter for law.

Now, that does not mean that I think that everybody has to go and read the document.

That I think that if someone does not read the document and there is rational interpretation that they have to be held liable.

I am just saying that the Pape case does apply and I think you are talking about perhaps common law, qualified privilege outside the Pape case.

However, if we apply Pape to this situation, I think clearly that it does not become a question as a matter of law.

I think clearly that it would be a question for a jury to decide and in this case, Time Inc. never asked for the jury to be instructed, that if you find that the article was a reasonable interpretation of an ambiguous document then there is no malice.

The only instruction they asked for was an instruction to the effect that you are instructed that a reasonable interpretation on that divorce decree is that adultery was one of the grounds for the divorce.

So we would submit to the Court that they have not properly in the Trial Court -- they have not sufficiently laid the ground work to raise this point on appeal.

And then we come to the actual malice standard and they have two arguments.

Number one: that Rosenbloom and Cox Broadcasting have extended the New York Times document to report to judicial proceedings and we would first say that we really do not read those cases is doing that.

I think the Cox Broadcasting case says essentially that truth is the defense.

That if you truthfully report a judicial proceeding or judicial report then it is a defense and I think that we have shown in this case that their publication was not truthful.

The second question and perhaps one of the most relevant here is whether or not Mrs. Firestone was a public figure, and therefore, whether or not the standard of actual malice was applicable.

Of course how you to determine this, and we are going to have to look to the various decisions of this Court, to the language in those decisions and I think perhaps the one that comes most to mind is Gertz because there, I think it was talked about perhaps one of the other decisions and some of the language is a public figure is one who has voluntarily placed himself in the public spotlight by reason of notoriety of their achievements or the vigor and success for which they seek the public’s attention, that they become labeled as public figures.

They thrust themselves to the forefront of public controversies in order to influence the resolution of those issues.

They invite attention and comment.

They voluntarily expose themselves to the increased risk of injury from defamation.

I think that is generally the language in Gertz.

In this case, I would like to point out that although Mrs. Firestone did file a complaint in this case for separate maintenance, unconnected with divorce.

She did not file for divorce.

Her husband, of course, counterclaimed against her for divorce.

She did not institute the divorce proceeding.

Therefore, it would be our contention that she was involuntarily drawn into divorce proceeding.

We can only say that simply because the newspapers chose to write about Mrs. Firestone and to write about her divorce does not make her a public figure.

She was married to a wealthy man and we certainly admit that.

He was a very wealthy man, but the woman was a housewife and he sued for divorce.

We think that up to that time --

Unknown Speaker: She was a housewife?

Ms Edna L. Caruso: Yes sir.

Unknown Speaker: What work was she doing at the house?

Ms Edna L. Caruso: Well, I do not know, I am sorry.

I do not mean to -- perhaps I should not say she was a housewife in that sense.

I do not think that she was a public figure in her own right.

She was simply married to a very wealthy man.

I do not know what chores she performed around the house, sir.

I think that under --

Unknown Speaker: (Inaudible) claim on reputation?

Ms Edna L. Caruso: Well, I think that --

Unknown Speaker: (Inaudible)

Ms Edna L. Caruso: Yes sir.

We were through the claim for lost of reputation.

Unknown Speaker: And changed the whole lawsuit?

Ms Edna L. Caruso: I do not think so.

No sir.

I do not think so.

I will tell you quite frankly why that was done.

This woman had just been through a very lengthy divorce suit and as a practical matter, it was not thought that she could withstand having the witnesses that were paraded through the divorce suit and I am talking about on both sides, I am not pointing simply to her husband, but we all know from the record that there were many, many witnesses that came into testify as to activities outside the marriage on both parties and for a number of physical and emotional reasons, it was thought that the woman should not have to go through this again and did not want to have to go through this again.

So that is why they withdrew the claim for lost of reputation.

Unknown Speaker: (Inaudible)

Ms Edna L. Caruso: Yes sir.

Justice Byron R. White: But that nevertheless, apparently is basis for recovery under Florida law?

Ms Edna L. Caruso: I think there is a basis for recovery --

Justice Byron R. White: Well, the Supreme Court of Florida affirmed.

You won, did you not?

Ms Edna L. Caruso: Yes sir.

Justice Byron R. White: Even though it was for another kind of an injury?

Ms Edna L. Caruso: No, I think it was --

Justice Byron R. White: Was it not -- was not an injury -- your reputation recovery?

Ms Edna L. Caruso: No sir.

I think that under defamation action we clearly do not have to seek each of the elements that can be sought.

For example --

Justice Harry A. Blackmun: What was it injury to damages for (Voice Overlap)

Ms Edna L. Caruso: Mental anguish, humiliation.

Justice Harry A. Blackmun: How can you separate really mental anguish and impingement upon reputation?Well, I am not sure if I can answer that specifically

Let me see if I can do it this way.

In this trial there was testimony -- for example, just by Mrs. Firestone, that she had a little son and that she lived everyday with the thought that he was going to old enough to read about this and find out about it and that was something she lived with and feared everyday of her life.

Now, the judge in this case ruled that that had nothing to do with her reputation.

That that had something to do with the mental state of that woman and being extremely distressed over that and so I think that you can separate and if I may, what if a person does not have a reputation and what if you have someone who is not known by -- that he is a hermit or something and no one knows this man and he does not have a reputation or standing in the community and yet he is -- someone libels him, certainly the man for his own mental pain and anguish, over what he has withstood --

Chief Justice Warren E. Burger: Would you say that converse of that would be that a very thick-skinned person might suffer no mental anguish, but merely have a sense of anger, but have his reputation in general damaged, thus separating these two things?

Ms Edna L. Caruso: I think so and I think that the language in Gertz to me -- it says that.

Gertz says, okay that from now on if you have a private individual and they proved actual damages -- okay, if they prove actual damages that you can prove negligence or you can prove other than malice and the Court says their actual injury is not limited to out-of-pocket laws.

Indeed, the more customary types of actual harm inflicted by defamatory falsehoods, include impairment of reputation and standing in the community.

It goes on to say personal humiliation and mental anguish and suffering and then it goes on to say talking about the jury should be correctly instructed on these elements of damages.

And it is our point that we would not have to pursue as an element of damage of the lost reputation.

That we could pursue the other elements lost of -- the other elements of injury to this woman.

Justice William H. Rehnquist: But the consequences under Florida law as to what would be admissible in evidence when she abandoned her claim for damage to reputation?

Ms Edna L. Caruso: In proof of her damages, sir?

Justice William H. Rehnquist: No.

But I mean, by abandoning her claim for damage to reputation, did she preclude the use of certain evidence on the part of the defendant?

You know, that even if she had not been granted a divorce for adultery or he had been, he should have been?

Ms Edna L. Caruso: I think that it precluded either party putting on evidence going to her reputation, yes sir and that was what we are trying to prevent because of the lengthy trial before that where all of this have been brought out.

Justice Lewis F. Powell: Ms. Caruso, what standard do you think the Supreme Court of Florida applied in this case, the New York Times standard or the Gertz standard?

Ms Edna L. Caruso: I think they applied Gertz.

Justice Lewis F. Powell: What evidence of negligence was cited by the Supreme Court of Florida in support of liability under the Gertz standard?

Ms Edna L. Caruso: I would -- quite frankly, I would have to re-look at the decision, sir.

Justice Lewis F. Powell: The only specific evidence that I recall was that since under Florida law, alimony could not be granted an adulteress that a sort of a per se result, the Supreme Court of Florida found negligence, is that your reading of the case?

Ms Edna L. Caruso: If I may have just one second.

Justice Lewis F. Powell: Appendix C of -- and I do not want to interrupt your argument.

Ms Edna L. Caruso: That is all right.

Appendix C.

Justice Lewis F. Powell: Yes.

C-10 as it concluding -- contains the concluding paragraph of the Florida Court for a reference to Gertz.

Well, I know it is very difficult it pick up language unless you have looking at it so --

Ms Edna L. Caruso: I would submit to the Court that I do not frankly recall the specific things pointed to in the Florida Supreme Court’s decision.

Unfortunately, we had a number of decisions in Florida Courts on this.

However, I think that clearly that the evidence presented in this case supports the finding of negligence on their part --

Unknown Speaker: Well, the Court said that if anybody looked at the decree that had been claim on the grounds and that the careful examinations requires an agreement is fairly demonstrated in the divorce -- in the grounds of cruelty but that was what the Supreme Court ruled?

Ms Edna L. Caruso: Well, yes I would agree with that.

I will also say that I think a reading of the divorce decree would not allow one to assume that it had been on adultery and that would be negligence, yes sir.

That also I think the important part about Time Inc.’s employees not even following their own standard to make sure that they are accurately reporting something when the employees --

Justice William J. Brennan: Well, there is a further point ahead of the paragraph that Mr. Justice White referred to, careful examination and consideration of the record discloses that the judgment of Trial Court is correct.

It should have been affirmed on appeal.

Does that sweep in the ground that you argue namely the failure of the New York Home Office of those involved in the publication, particularly the failure to spot the word adultery satisfies the premise of negligence?

Ms Edna L. Caruso: No sir.

I do no think so, because in this case see --

Justice William J. Brennan: The Supreme Court did not say anything about that, did they?

Ms Edna L. Caruso: In this case I think the distinction is that in this case we have the woman who is responsible for running an accuracy check.

Justice William J. Brennan: Yes, but your Supreme Court did not rely on that fact, did it?

Ms Edna L. Caruso: I do not that was mentioned in there, no sir.

Justice William J. Brennan: I am not – unless it is in this actual paragraph I have just read you?

Ms Edna L. Caruso: No sir.

I do not think they specifically pointed that out, no sir.

Justice William H. Rehnquist: I suppose the Supreme Court of Florida has occasion on more than one appeal to simply summarily say there is sufficient evidence of negligence and we disallow that point without going into great detail as to why they think there is sufficient evidence of negligence.

Ms Edna L. Caruso: Yes.

Yes sir.

Justice Potter Stewart: Why, if they are reversing another Appellate Court, would -- do they often do that cryptically?

Because there is one thing when you are affirming, it is something else when you are reversing?

Ms Edna L. Caruso: Yes, sometimes it is sir.

Yes sir.

Justice William H. Rehnquist: Certainly, there is nothing that Federal constitution would prevent them from doing it anyway?

Ms Edna L. Caruso: No sir.

I do not think so.

If there are no other questions, I will conclude.

Justice Lewis F. Powell: In the opinion of the Supreme Court of Florida, there is a statement to the effect that the trial court found the equities to be with Mrs. Firestone --

Ms Edna L. Caruso: Mrs. Firestone?

Justice Lewis F. Powell: That is what the Supreme Court of Florida, wait a minute maybe I am reading the wrong, look on page C-2 of the petition and see if I am reading the wrong opinion.

Page C-2, the last full paragraph.

Ms Edna L. Caruso: That is an in --

Justice Lewis F. Powell: That is not what the trial court found, is it?

Ms Edna L. Caruso: I think that --

Justice Lewis F. Powell: You think it is a misprint?

Ms Edna L. Caruso: I think perhaps it is, but we would have to check --

Justice Lewis F. Powell: Well, is it possible that the Supreme Court of Florida was misinformed itself?

Ms Edna L. Caruso: No.

I think that they understood, but I will have to look at -- I think that they understood the -- that the question -- I think they understood that Mr. Firestone had been granted the divorce and she have been awarded adultery and --

Justice Lewis F. Powell: With an alimony?

Ms Edna L. Caruso: She has been awarded alimony and I think they understood that and I would think that this is a misprint but we would have to check that to be sure, sir.

Thank you.

Chief Justice Warren E. Burger: Thank you, Ms. Caruso.

You wish to make any further, Mr. Pickering?

Rebuttal of John H. Pickering

Mr. John H. Pickering: Yes, just a few --

Chief Justice Warren E. Burger: Before you get started let me just ask you one question that you could handle briefly.

This testimony on page 200 and has just been alluded to indirectly, that is the researcher explained her function as checking every word in the story if it was a keyword and the record showed that when she -- the document was in evidence.

The pencil-check appeared on above each the keywords in the article, the pencil-check of the researcher, except the word adultery and do you suppose that testimony was overlooked by the jury?

I am speaking of the Supreme Court or the Court of Appeals, but by the jury in coming to its conclusions?

Mr. John H. Pickering: No, Your Honor because I think it was made very clear in the testimony that that absence of a check mark signified absolutely nothing.

That is what Ms. Nadasdy testified --

Chief Justice Warren E. Burger: That was her testimony?

Mr. John H. Pickering: That was her testimony.

Chief Justice Warren E. Burger: But having already testified that her regular habit was to put a check over every word that she had checked and then the document was put before the jury and did not have a check over adultery, do you think that would permit the jury to accept the documentary evidence rather than her explanation?

Mr. John H. Pickering: That is possible.

But the only issue that went to the jury Your Honor was truth.

There was nothing about negligence or malice or anything else.

Mrs. Nadasdy and the other people responsible for the article, the writer Darner (ph) and the editor Daniels, all testified at the trial as to their complete belief in the truth of the article at the time it was published and at the time of trial.

That is set forth in our brief and I can give you the record references for that testimony, set forth in the brief and the researcher Nadasdy and the editor both testified and this is at pages 2 and 3 of our reply brief that the absence of the check mark over that signified nothing.

Now, let me come to just --

Justice Potter Stewart: There were several other words over with (Voice Overlap) no check mark?

Mr. John H. Pickering: There were several other words Your Honor, there were not a check mark over (Voice Overlap) and if you will look at plaintiff’s exhibit --

Chief Justice Warren E. Burger: Were there any keywords in these definitions?

Mr. John H. Pickering: Some other words, yes.

Chief Justice Warren E. Burger: Was there only one keyword in this litigation and that the word that (Voice Overlap).

Mr. John H. Pickering: There is only one keyword as far as her suit is concerned, but in making an accurate statement to the general public, Mr. Chief Justice, there were a number of keywords.

Now, let me give one more reason why any knowledge of the stringer Delaney cannot be attributed to Time.

The New York Times case itself makes that plain because there was knowledge and Times filed -- the files of the New York Times itself that contradicted the advertisement, but this Court said that did not come to the attention of those responsible to the publication.

Justice William H. Rehnquist: But there you are talking about a malice standard.

That would not necessarily carryover to a negligence standard?

Mr. John H. Pickering: That is correct.

But you can have the lack of imputation for a negligence as well.

It is an easier test, I grant you that Your Honor, yes.

My opponent referred to the failure of Time to request jury instructions.

Time requested jury instructions.

They appear -- the record at 557, 558 on all of the constitutional issues which it raised and that included all of these.

Now, several questions dealt with why was the claim for reputation withdrawn and did not that do something if I could for just one second respond to that.

The claim for damage to reputation was withdrawn because it was quite clear, we were prepared -- Time was prepared to do in proving this and the danger that follows from allowing claim for a representation to be withdrawn is clear from the record in this case because Mrs. Firestone testified the thing that concerned her most about this article was that someday, as counsel for the respondent has said, someday her infant son would hear about and understand what it meant.

That appears in the record 393 and the jury sent back a query, in the record on page 515 to the judge asking if they could award compensatory damages to the son in trust for him.

The judge answered no without consulting with the attorneys.

The verdict then came in for a $100 000.00 compensatory damage.

Thank you, Your Honor.

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

Thank you Ms. Caruso.

The case is submitted.