The New York Times Company v. Sullivan Brief for the Petitioner

    IN THE

ĵ upremp Court of ttjr Inttefc States
October Term, 1963

No. 39

THE NEW YORK TIMES COMPANY,
Petitioner,

v.

L. B. SULLIVAN,
Respondent.

On W rit of Certiorari to the Supreme 
Court of A labama

BRIEF FOR THE PETITIONER

H erbert B rownell 
T homas F . Daly 

25 Broadway 
New York 4, New York

Louis M. L oeb 
T. E ric E mbry 
Marvin E . F rankel 
R onald S. D iana 
D oris W echsler 
L ord, Day & L ord 
B eddow, E mbry & B eddow 

Of Counsel

H erbert W echsler 
435 West 116th St.

New York 27, New York 
Attorneys for Petitioner 

The New York Times Company



INDEX

PAGE

Opinions B e l o w ---------------------------------------------------------------  1

JuBISDICTION______________________________________________  1

Questions Pkesented-------------------------------------------------------- 2

Stat e m e n t________________________________________________ 3

1. The Nature of the Publication------------------------------ 4
2. The Allegedly Defamatory Statements----------------- 6
3. The Impact of the Statements on Respondent’s

Reputation____________________________________  10
4. The Circumstances of the Publication-----------------  15
5. The Response to the Demand for a Retraction —  18
6. The Rulings on the M erits--------------------------------  22
7. The Jurisdiction of the Alabama Courts------------  25

Summary op A rgument---------------------------------------------------  28

A rgument

I The decision rests upon a rule of liability for 
criticism of official conduct that abridges freedom
of the p re ss___________________________________  38
First: The State Court’s Misconception of the 

Constitutional Issues________________________  39
Second: Seditious Libel and the Constitution —  41
Third: The Absence of Accommodation of Con­

flicting Interests-------------------------------------------  51
Fourth: The Relevancy of the Official’s Privilege 55
Fifth: The Protection of Editorial Advertise­

ments --------------------------   57

II Even if the rule of liability were valid on its face
the judgment rests on an invalid application-------  58



n

First: The Scope of Review ___________________ 59
Second: The Failure to Establish Injury or 

Threat to Respondent’s Reputation__________  60
Third: The Magnitude of the Verdict__________  66

III The assumption of jurisdiction in this action by 
the Courts of Alabama contravenes the Constitu­
tion ___________________________________________  69
First: The Finding of a General Appearance_70
Second: The Territorial Limits of Due Process 77
Third: The Burden on Commerce_____________  86
Fourth: The Freedom of the P ress____________  88

Conclusion ________________________________________  90

A ppendix A _____________________________________________ 91

A ppendix B _____________________________________________ 97

PAGE

Citations
Cases:

A. & G. Stevedores v. Ellerman Lines, 369 U. S. 355 69
Abrams v. United States, 250 U. S. 616-------------------  48
Aetna Insurance Co. v. Earnest, 215 Ala. 557 ----------- 74
Affolder v. New York, Chicago & St. L. R. Co.,

339 U. S. 96_____________________________________  69
Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40 83
Alabama Ride Company v. Vance, 235 Ala. 263 ------ 39
Alberts v. California, 354 U. S. 476------- ------------------- 48
Associated Press v. United States, 326 U. S. 1 ---------  58
Atchison, Topeka & Santa Fe Ry. v. Wells, 265 U. S.

101 _____________________________________________ 87
Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511______ 87



PAGE

Bantam Boohs, Inc. v. Sullivan, 372 U. S. 5 8 ____49, 57, 69
Barr v. Matteo, 360 U. S. 564 ____________________55, 56
Barrows v. Jachson, 346 U. S. 249________________ 40, 58
Barry v. McCollom, 81 Conn. 293 ____________ 55n.
Bates v. Little Roch, 361 U. S. 516_______________ 50, 68
Beauharnais v. Illinois, 343 U. S. 250 ______29, 40, 41, 48
Blankenship v. Blankenship, 263 Ala. 297 __________  73
Blount v. Peerless Chemicals (P. R.) Inc., 316 F. 2d 

695 ____________________________________________  78
Boucher v. Clark Pub. Co., 14 S. D. 7 2 _____________ 54n.
Boyd v. Warren Paint & Color Co., 254 Ala. 687 ____ 73
Bradford v. Clark, 90 Me. 298 ______________________ 54n.
Breard v. Alexandria, 341 U. S. 622 _______________  57
Brewster v. Boston Herald-Traveler Corp., 141 F. 

Supp. 760 ______________________________________  80
Bridges v. California, 314 U. S. 252 ___________ 30, 42, 43,

44, 48, 59
Buckley v. Neiv York Times Co., 215 F. Supp. 893 _79
Calagaz v. Calhoon, 309 F. 2d 248 _________________ 81
Canadian Pacific Ry. Co. v. Sullivan, 126 F. 2d 433, 

cert, denied, 316 U. S. 696 _______________________ _ 76
Cannon v. Time, Inc., 115 F. 2d 423 ------------------------ 79
Cantwell v. Connecticut, 310 U. S. 296 ______29, 42, 43, 67
Carter v. Carter Coal Co., 298 TJ. S. 238____________  40
Catron v. Jasper, 303 Ky. 598 -------------------- :-----------55n.
Chaplinsky v. New Hampshire, 315 U. S. 568 _______  40
Charles Parker Co. v. Silver City Crystal Co., 142 

Conn. 605 ______________________________________ 54n.
Chicago & N. W. Ry. v. Nye Schneider Fowler Co.,

260 U. S. 3 5 ____________ _______________________  68
Chicago, B. & Q. Railroad v. Chicago, 166 TJ. S. 226 69



iv

PAGE

City of Albany v. Meyer, 99 Cal. App. 651---------------- 50
City of Chicago v. Tribune Co., 307 HI. 595 -----------50, 56
Coleman v. MacLennan, 78 Kan. 711---------------------- 54n.
Communications Assn. v. Douds, 339 U. S. 382 -------  51
Constantine v. Constantine, 261 Ala. 4 0 -----------------  74
Craig v. Harney, 331 U. S. 367 -----------------------------44, 59
Crowell-Coilier Pub. Co. v. Caldwell, 170 F. 2d 941 — 67
Dagnello v. Long Island Rail Road Company, 289 F.

2d 797 _________________________________________  69
Dailey Motor Co. v. Reaves, 184 N. C. 260 ---------------- 74
Davis v. Farmers Co-operative Co., 262 U. S. 312 —35, 76,

87, 88
Davis v. O’Hara, 266 U. S. 314-----------------------------74, 75
Davis v. Wechsler, 263 U. S'. 2 2 ------------------------------  75
Dean Milk Co. v. City of Madison, 340 U. S. 349 — 52, 87
DeJonge v. Oregon, 299 U. S. 353 ---------------------------  42
Dennis v. United States, 341 U. S. 494 --------------48, 51, 54
Denver & R. G. W. R. Co. v. Terte, 284 U. S. 284

35, 76, 87
Dimick v. Schiedt, 293 U. S. 474 ----------------------------- 69
Dozier Lumber Co. v. Smitli-Isburg Lumber Co., 145 

Ala. 317 _______________________________________  72
Edwards v. California, 314 U. S. 160----------------------  87
Edwards v. South Carolina, 372 U. S. 229 — 29, 42, 48, 59 
Erlanger Mills v. Cohoes Fibre Mills, Inc., 239 F.

2d 502 ________________________________________ 80, 88
Ex parte Cullinan, 224 Ala. 263 ---------------------- 34, 71, 72
Ex parte Haisten, 227 Ala. 183-----------------------------71, 74
Ex parte Spence, 271 Ala. 151-------------------------------- 76n.
Ex parte Textile Workers Union of America, 249 

Ala. 1 3 6 _____________________________________ 72, 76n.



V

PAGE

Ex parte Union Planters National Bank and Trust 
Co., 249 Ala. 461_______________________________ 76n.

Fairmount Glass Works v. Cub Fork Coal Co., 287 
U. S. 474 _______________________________________  69

Farmers Union v. WDAY, 360 U. S. 525 __________  56
Fay v. Noia, 372 U. S. 391________________________ 76n.
Ferdon v. Dickens, 161 Ala. 181___________________ 39
Fisher’s Blend Station v. Tax Commission, 297 U. S.

650 _____________________________________________ 87
Fiske v. Kansas, 274 U. S. 380 ____________________59, 62
Ford Motor Co. v. Hall Auto Co., 226 Ala. 385 _____76n.
Fowler v. Curtis Publishing Co., 182 F. 2d 377 ____60n.
Friedell v. Blakeley Printing Co., 163 Minn. 226 ___54n.
Gayle v. Magazine Management Co., 153 F. Supp. 861 80
General Trading Co. v. State Tax Comm’n., 322 U. S.

335 ____________________________________________  85
Gibson v. Florida Legislative Comm., 372 U. S. 539_52, 89
Gough v. Tribune-Journal Company, 75 Ida. 502____54n.
Gregoire v. Biddle, 177 F. 2d 579 __________________ 55
Grosjean v. American Press Co., 297 U. S. 233 -------  67
H. P. Hood & Sons v. DuMond, 336 U. S. 525 ______ 87
Hanson v. Denckla, 357 U. S. 235 _________ 35, 37, 77, 78,

80, 81, 82, 83, 84, 85
Harrub v. Hy-Trous Corporation, 249 Ala. 414______ 72
Hartmann v. Time, Inc., 166 F. 2d 127, cert, denied,

334 U. S. 838 ___________________________________ 80n.
Herndon v. Lowry, 301 IT. S. 242 ___________________ 59
Hope v. Hearst Consolidated Publications, Inc., 294 

F. 2d 681_______________________________________  61
Howland v. Flood, 160 Mass. 509___________________55n.
Hughes v. Bizzell, 189 Okla. 472 ____________________55n.



VI

Hutchinson v. Chase & Gilbert, 45 F. 2d 139________  82
Insult v. New York, World-Telegram Corp., 273 F. 2d 

166, cert, denied, 362 U. S. 942 -----------------------------80n.
International Milling Co. v. Columbia Transportation 

Co., 292 U. S. 511________________________________ 87
International Shoe Co. v. Washington, 326 U. S. 310

35, 36, 77, 78, 79, 82, 88
Johnson Publishing Co. v. Davis, 271 Ala. 474 -----------39,

62n., 67, 72
Julian v. American Business Consultants, Inc., 2 N. Y.

2d 1 ____________________________________________ 60n.
Kilpatrick v. Texas & P. By. Co., 166 F. 2d 788 — 81n., 86 
Kingsley Pictures Corp. v. Regents, 360 IT. S. 684_51, 59
Kirkpatrick v. Journal Publishing Company, 210 

Ala. 1 0 _________________________________________  39
Konigsberg v. State Bar of California, 366 U. S.

36 _____________________________________________40,52
Kyser v. American Surety Co., 213 Ala. 614------------  74
L. D. Reeder Contractors of Ariz. v. Higgins Indus­

tries, Inc., 265 F. 2d 768 ________________________ 78, 80
Lampley v. Beavers, 25 Ala. 534 ------------------------71, 76n.
Lane v. Wilson, 307 U. S. 268 --------------------------------- 50
Lawrence v. Fox, 357 Mich. 134 ------------------------------- 54n.
Life & Casualty Co. v. McCray, 291 U. S. 566 ---------  68
Tjouisiana ex rel. Gremillion v. N. A. A. C. P., 366 

U. S'. 293 _______________________________________  50
Lovell v. Griffin, 303 IT. S. 444 ------------------------------ 58, 84
Mattox v. News Syndicate Co., 176 F. 2d 897, cert, 

denied, 338 U. S. 858 ____________________________ 80n.
McBride v. Crowell-Coilier Pub. Co., 196 F. 2d 187 — 60n.
McGee v. International Life Ins. Co., 355 U. S. 220

36, 37, 84

PAGE



Vll

PAGE

McKnett v. St. Louis <& San Francisco Ry., 292 U. S.
230 _____________________________________________ 73n.

Michigan Central R. R. Co. v. Mix, 278 U. S. 492 _35, 76,
87

Miller Bros. Co. v. Maryland, 347 U. S. 340 ________  85
Mills v. Denny, 245 Iowa 584 _______________________55n.
Minnesota v. Barber, 136 U. S. 313________________  87
Missouri Pacific Ry. Co. v. Tucker, 230 U. S. 340 ____ 68
Montgomery v. Philadelphia, 392 Pa. 178___________55n.
Moore v. Davis, 16 S. W. 2d 380 ___________________54n.
N. A. A. C. P. v. Alabama, 357 U. S. 449 __40, 67, 69, 70, 75
N. A. A. C. P. v. Button, 371 U. S. 415______29, 41, 42, 43,

48, 57, 65, 89
Near v. Minnesota, 283 U. S. 697 ___________________ 40
Neiman-Marcus v. Lait, 13 F.R.D. 311_____________ 60n.
Neiv York Times v. Parks and Patterson, No. 687, 

October Term, 1962, No. 52, this T erm __________  3n.
New York Times Company v. Conner, 291 F. 2d 

492 _________________________________________ 73n.,92
Noral v. Hearst Publications, Inc., 40 Cal. App. 2d 

348 _____________________________________________ 60n.
Norris v. Alabama, 294 U. S. 587 _____________ 32, 59, 62
O’Hara v. Davis, 109 Neb. 615_____________________  75
Olcese v. Justice’s Court, 156 Cal. 8 2 ______________  74
Overstreet v. Canadian Pacific Airlines, 152 F. Supp.

838 ____________________________________________  88
Pantsivowe Zaklady Graviozne v. Automobile Ins.

Co., 36 F. 2d 504 ________________________________ 77
Parks and Patterson v. New York Times Company,

195 F. Supp. 919, rev’d, 308 F. 2d 474___________  3n.
Parsons v. Age-Herald Pub. Co., 181 Ala. 439 ______ 39
Partin v. Michaels Art Bronze Co., 202 F. 2d 541____ 78



Vlll

Pennekamp v. Florida, 328 U. S. 331 --------------30, 40,44,
59, 60, 65

Perkins v. Benguet Mining Co., 342 U. S. 437 ---------35, 78
Peterson v. Steenerson, 113 Minn. 87 ---------------------- 55n.
Phoenix Newspapers v. Choisser, 82 Ariz. 271 ------- 54n.
Polizzi v. Cowles Magazines, Inc., 345 U. S. 663 ------ 85
Ponder v. Cobb, 257 N. C. 281_____________________54n.
Putnam v. Triangle Publications, Inc., 245 N. C. 432 79
Rearick v. Pennsylvania, 203 U. S. 507 ------------------- 82
Roberts v. Superior Court, 30 Cal. App. 714----------- 74
Robinson v. California, 370 U. S. 660 ----------------------  68
Roth v. United States, 354 U. S. 476 --------------- 29, 40, 42
St. Louis, I. Mt. & So. Ry. Co. v. Williams, 251 

U. S. 6 3 _______________________________________  68
St. Mary’s Oil Engine Co. v. Jackson Ice and Fuel 

Co., 224 Ala. 152______________________________ 72, 73
Salinger v. Cowles, 195 Iowa 873 --------------------------- 54n.
Sclienck v. United States, 249 U. S. 4 7 ------------------- 51
Schlinkert v. Henderson, 331 Mich. 284 -------------------55n.
Schmidt v. Esquire, Inc., 210 F. 2d 908, cert, denied,

348 U. S. 819___________________________________  79
Schneider v. State, 308 U. S. 147----------------------------- 58
Scripto v. Carson, 362 U. S. 207 --------------------------- 37, 84
Seaboard Air Line Ry. v. Hubbard, 142 Ala. 546 ------ 72
Service Parking Corp. v. Washington Times Co.,

92 F. 2d 502 _________________________________60n., 61
Sessoms Grocery Co. v. International Sugar Feed 

Company, 188 Ala. 232 --------------------------------------  71
Shelley v. Kraemer, 334 U. S. 1 ----------------------------- 40
Shelton v. Tucker, 364 U. S. 479 ---------------------- 52, 68, 89
Sioux Remedy Co. v. Cope, 235 U. S. 197---------------- 88

PAGE



PAGE

Smith v. California, 361 U. S. 147__________ 54, 57, 67,
Southern Pacific Co. v. Arizona, 325 U. S. 761______
Southern Pac. Co. v. Guthrie, 186 F. 2d 926_________
Speiser v. Randall, 357 U. S. 513________43, 52, 54, 67,
Staub v. City of Baxley, 355 U. S. 313______________
Street d Smith Publications, Inc. v. Spikes, 120 F. 2d 

895, cert, denied, 314 U. S. 653 ___________________
Stromberg v. California, 283 U. S. 359 ____________ 42,
Sweeney v. Patterson, 128 F. 2d 457 _______________
Sweeney v. Schenectady Union Pub. Co., 122 F. 2d 

288, aff’d, 316 U. S. 642 ________________________
Talley v. California, 362 U. S. 6 0 ______________ 58, 84,
Terminal Oil Mill Co. v. Planters W. & G. Co., 197 

Ala. 429 ________________________________________
Terminiello v. Chicago, 337 U. S. 1 ________________
Thompson v. Wilson, 224 Ala. 299 __________________
Times Film Corporation v. City of Chicago, 365 U. S. 

43 _____________________________________________
Travelers Health Assn. v. Virginia, 339 U. S. 643 _37,
Trippe Manufacturing Co. v. Spencer Gifts, Inc., 270 

F. 2d 821 _______________________________________
Trop v. Dulles, 356 U. S. 8 6 _______________________
United States v. Associated Press, 52 F. Supp. 362

42,
United States v. Classic, 313 U. S. 299 ____________
United States v. Smith, 173 Fed. 227 ______________
Valentine v. Christensen, 316 U. S. 52______________
Vaughan v. Vaughan, 267 Ala. 117_________________
Ward v. Love County, 253 U. S. 1 7 _________________
Watts v. Indiana, 338 U. S'. 4 9 _____________________

89
88
69
89
75

79
66
52

53
89

71
42
74

40
84

80
41

43
41
82
57
74
76
59



X

Weston v. Commercial Advertiser Assn., 184 N. Y.
PAGE

479 _____________________________________________ 60n.
Wieman v. Updegraff, 344 U. S. 183----------------------  54
Whitaker v. Macfadden Publications, Inc., 105 F. 2d 

44 _____________________________________________  79
Whitney v. California, 274 TJ. S. 357 ________ 31, 33, 56, 67
Winters v. New York, 333 U. S. 507 _______________  68
Wood v. Georgia, 370 U. S. 375 _______________ 30, 44, 59
Wright v. Georgia, 373 U. S. 284 ___________________ 75
WSAZ, Inc. v. Lyons, 254 F. 2d 242 ----------------------  85
Zuber v. Pennsylvania R. Co., 82 F. Supp. 670 ______  76
Zuck v. Interstate Publishing Corp., 317 F. 2d 727 _83

Constitution and Statutes 

United States Constitution:
Commerce C lause_________________________ 2, 25, 34, 37,

38, 76, 86
Full Faith aud Credit Clause________________ 37, 40, 86
First Amendment___________________2, 24, 29, 31, 38, 41,

42, 44, 51, 52, 54, 57, 58, 59, 62, 
65, 66, 68, 69, 83, 84, 88, 89, 90

Seventh Amendment---------------------------------------------  69
Fourteenth Amendment____________________2, 24, 25, 29,

34, 38, 39, 42, 77
28 U.S.C. 1257 ( 3 ) ________________________________ 1
Act of July 14, 1798, Secs. 2, 3; 1 Stat. 596 ________ 46, 49
Act of July 4, 1840, c. 45, 6 Stat. 802 ______________  47
Acts of June 17, 1844, cc. 136 and 165, 6 Stat. 924 

and 931 ________________________________________ 47



XI

Alabama Statutes:
Alabama Code of 1940, Title 7 § 188 ------------------- 25, 73
Alabama Code of 1940, Title 7 § 1 9 9 (1 )-------------- 25,73
Alabama Code of 1940, Title 13 § 126____________  75
Alabama Code of 1907, Title 7 § 9 7 --------------------- 73

PAGE

Foreign Statutes:

Defamation Act, 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, 
ch. 66, § 5 ______________________________________ 62n.

Miscellaneous:

Chafee, Free Speech in the United States (1941) —  48 
Cooley, Constitutional Limitations (8th ed. 1927) — 48
4 Elliot’s Debates (1876)__________________42, 45, 47, 56
1 Harper and James, The Law of Torts (1956) 54n., 55n.
3 Jones, Alabama Practice and Forms (1947) (Supp.

1962) __________________________________________  72
Levy, Legacy of Suppression (1960)----------------------  46
6 Moore’s Federal Practice (2d ed. 1953)__________  69
Prosser on Torts (2d ed. 1955)---------------------- 55n., 60n.
Smith, Freedom’s Fetters (1956)__________________ 46
1 Williston on Contracts (3d ed. 1957)____________  81

25A.L.R. 2 d ______________________________________  74
4 Annals of Congress_____________________________  56
8 Annals of Congress____________________________ 46-47
Government by Injunction, 15 Nat. Corp. Rep. (1898) 51
H.R. Rep. No. 86, 26th Cong., 1st Sess. (1840)_____47n.
Report of the Committee on the Law of Defamation 

(1948) cmd. 7536 _______________________________ 62n.



Report with Senate hill No. 122, 24th Cong., 1st Sess. 
(1836) _________________________________________  48

Restatement, T o r ts__________________________ 55n., 60n.

Kalven, The Law of Defamation and the First 
Amendment in Conference on the Arts, Publish­
ing and the Law (U. of Chi. Law S ch ool)_______ 44n.

Leflar, The Single Publication Rule, 25 Rocky Mt. L.
Rev. (1953) _____________________________________80n.

Noel, Defamation of Public Officers and Candidates,
49 Col. L. Rev. (1949)__________________________ 54n.

Prosser, Interstate Publication, 51 Mich. L. Rev. 
(1953) __________________________________________ 80n.

Developments in the Law: Defamation, 69 Harv. L.
Rev. (1956) _____________________________________54n.

Note, 29 U. of Chi. L. Rev., 569 (1962)_____________ 80n.
42 Harv. L. Rev., 1062 (1929)_____________________  77
43 Harv. L. Rev., 1156 (1930)_____________________  77

X ll

PAGE



IK  THE

(Enurt of tht Mniteb States
October Term, 1963

No. 39

THE NEW YORK TIMES COMPANY,
Petitioner,

v.

L. B. SULLIVAN,
Respondent.

O n  W rit of Certiorari to the S upreme 
Court of A labama

BRIEF FOR THE PETITIONER

Opinions Below
The opinion of the Supreme Court of Alabama (R. 1139) 

is reported in 273 Ala. 656, 144 So. 2d 25. The opinion of 
the Circuit Court, Montgomery County, on the petitioner’s 
motion to quash service of process (R. 49) is unreported. 
There was no other opinion by the Circuit Court.

Jurisdiction
The judgment of the Supreme Court of Alabama (R. 

1180) was entered August 30,1962. The petition for a writ 
of certiorari was filed November 21, 1962 and was granted 
January 7, 1963. 371 U. S. 946. The jurisdiction of this 
Court is invoked under 28 U. S. C. 1257 (3).



2

Questions Presented

1. Whether, consistently with the guarantee of freedom 
of the press in the First Amendment as embodied in the 
Fourteenth, a State may hold libelous per se and actionable 
by an elected City Commissioner published statements crit­
ical of the conduct of a department of the City Government 
under his general supervision, which are inaccurate in some 
particulars.

2. Whether there was sufficient evidence to justify, 
consistently with the constitutional guarantee of freedom 
of the press, the determination that published statements 
naming no individual but critical of the conduct of the 
“ police”  were defamatory as to the respondent, the elected 
City Commissioner with jurisdiction over the Police De­
partment, and punishable as libelous per se.

3. Whether an award of $500,000 as “ presumed”  and 
punitive damages for libel constituted, in the circumstances 
of this case, an abridgment of the freedom of the press.

4. Whether the assumption of jurisdiction in a libel 
action against a foreign corporation publishing a newspaper 
in another State, based upon sporadic news gathering ac­
tivities by correspondents, occasional solicitation of adver­
tising and minuscule distribution of the newspaper within 
the forum state, transcended the territorial limitations of 
due process, imposed a forbidden burden on interstate com­
merce or abridged the freedom of the press.

Constitutional and Statutory Provisions Involved
The constitutional and statutory provisions involved are 

set forth in Appendix A, infra, pp. 91-95.



3

Statement

On April 19, 1960, the respondent, one of three elected 
Commissioners of the City of Montgomery, Alabama, in­
stituted this action in the Circuit Court of Montgomery 
County against The New York Times, a New York corpo­
ration, and four co-defendants resident in Alabama, Ralph 
D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., and 
J. E. Lowery. The complaint (R. 1) demanded $500,000 as 
damages for libel allegedly contained in two paragraphs 
of an advertisement (R. 6) published in The New York 
Times on March 29,1960. Service of process was attempted 
by delivery to an alleged agent of The Times in Alabama 
and by substituted service (R. 11) pursuant to the “ long- 
arm”  statute of the State. A  motion to quash, asserting 
constitutional objections to the jurisdiction of the Circuit 
Court (R. 39, 43-44, 47, 129) was denied on August 5, 1960 
(R. 49). A  demurrer to the complaint (R. 58, 67) was over­
ruled on November 1, 1960 (R. 108) and the cause proceeded 
to a trial by jury, resulting on November 3 in a verdict 
against all defendants for the full $500,000 claimed (R. 862). 
A motion for new trial (R. 896, 969) was denied on March 
17,1961 (R. 970). The Supreme Court of Alabama affirmed 
the judgment on August 30, 1962 (R. 1180).* The Circuit

* Libel actions based on the publication of the same statements in 
the same advertisement were also instituted by Governor Patterson 
of Alabama, Mayor James of Montgomery, City Commissioner Parks 
and former Commissioner Sellers. The James case is pending on 
motion for new trial after a verdict of $500,000. The Patterson, 
Parks and Sellers cases, in which the damages demanded total 
$2,000,000, were removed by petitioner to the District Court. That 
court sustained the removal (195 F. Supp. 919 [1961]) but the 
Court of Appeals, one judge dissenting, reversed and ordered a re­
mand (308 F. 2d 474 [1962]). A  petition to review that decision on 
certiorari is now pending in this Court. New York Times Company 
v. Parks and Patterson, No. 687, October Term, 1962, No. 52, this 
Term.



4

Court and the Supreme Court both rejected the petition­
er’s contention that the liability imposed abridged the free­
dom of the press.

1. The Nature of the Publication.— The advertisement, 
a copy of which was attached to the complaint (R. 1, 6), con­
sisted of a full page statement (reproduced in Appendix 
B, infra p. 97) entitled “ Heed Their Rising Voices” , a 
phrase taken from a New York Times editorial of March 
19, 1960, which was quoted at the top of the page as fol­
lows: “ The growing movement of peaceful mass demon­
strations by Negroes is something new in the South, some­
thing understandable . . . Let Congress heed their rising 
voices, for they will be heard.”

The statement consisted of an appeal for contributions 
to the “ Committee to Defend Martin Luther King and the 
Struggle for Freedom in the South”  to support “ three 
needs—the defense of Martin Luther King—the support of 
the embattled students— and the struggle for the right-to- 
vote ’ ’. It was set forth over the names of sixty-four individ­
uals, including many who are well known for achievement 
in religion, humanitarian work, public affairs, trade unions 
and the arts. Under a line reading “ We in the South who 
are struggling daily for dignity and freedom warmly en­
dorse this appeal”  appeared the names of twenty other 
persons, eighteen of whom are identified as clergymen in 
various southern cities. A  New York address and telephone 
number were given for the Committee, the officers of 
which were also listed, including three individuals whose 
names did not otherwise appear.

The first paragraph of the statement alluded generally 
to the “ non-violent demonstrations”  of Southern Negro



5

students “ in positive affirmation of the right to live in 
human dignity as guaranteed by the TT.S. Constitution and 
the Bill of Bights.”  It went on to charge that in “ their 
efforts to uphold these guarantees, they are being met by 
an unprecedented wave of terror by those who would deny 
and negate that document which the whole world looks 
upon as setting the pattern for modern freedom . . .

The second paragraph told of a student effort in 
Orangeburg, South Carolina, to obtain service at lunch 
counters in the business district and asserted that the 
students were forcibly ejected, tear-gassed, arrested en 
masse and otherwise mistreated.

The third paragraph spoke of Montgomery, Alabama 
and complained of the treatment of students who sang on 
the steps of the State Capitol, charging that their leaders 
were expelled from school, that truckloads of armed police 
ringed the Alabama State College Campus and that the 
College dining-hall was padlocked in an effort to starve 
the protesting students into submission.

The fourth paragraph referred to “ Tallahassee, At­
lanta, Nashville, Savannah, Greensboro, Memphis, Rich­
mond, Charlotte and a host of other cities in the South,”  
praising the action of “ young American teenagers, in face 
of the entire weight of official state apparatus and police 
power,”  as “ protagonists of democracy.”

The fifth paragraph speculated that “ The Southern 
violators of the Constitution fear this new, non-violent 
brand of freedom fighter . . . even as they fear the 
upswelling right-to-vote movement,”  that “ they are deter­
mined to destroy the one man who more than any other, 
symbolizes the new spirit now sweeping the South—the



6

Rev. Dr. Martin Luther King, Jr., world-famous leader of 
the Montgomery Bus Protest.”  It went on to portray the 
leadership role of Dr. King and the Southern Christian 
Leadership Conference, which he founded, and to extol the 
inspiration of “ his doctrine of non-violence” .

The sixth paragraph asserted that the “ Southern vio­
lators”  have repeatedly “ answered Dr. K ing’s protests 
with intimidation and violence”  and referred to the bomb­
ing of his home, assault upon his person, seven arrests 
and a then pending charge of perjury. It stated that 
“ their real purpose is to remove him physically as the 
leader to whom the students and millions of others—look 
for guidance and support, and thereby to intimidate all 
leaders who may rise in the South” , concluding that the 
defense of Dr. King “ is an integral part of the total strug­
gle for freedom in the South.”

The remaining four paragraphs called upon “ men and 
women of good will”  to do more than “ applaud the creative 
daring of the students and the quiet heroism of Dr. King”  
by adding their “ moral support”  and “ the material help 
so urgently needed by those who are taking the risks, facing- 
jail and even death in a glorious re-affirmation of our Con­
stitution and its Bill of Rights” .

2. The Allegedly Defamatory Statements.— Of the ten
paragraphs of text in the advertisement, the third and a 
portion of the sixth were the basis of respondent’s claim 
of libel.

(a) The third paragraph was as follows:

“ In Montgomery, Alabama, after students sang 
‘ My Country, ’Tis of Thee’ on the State Capitol steps, 
their leaders were expelled from school, and truck­



7

loads of police armed with shot-guns and tear-gas 
ringed the Alabama State College Campus. When the 
entire student body protested to state authorities by 
refusing to re-register, their dining hall was padlocked 
in an attempt to starve them into submission.”

Though the only part of this statement that respondent 
thought implied a reference to him was the assertion about 
“ truckloads of police”  (R. 712), he undertook and was per­
mitted to deal with the paragraph in general by adducing 
evidence depicting the entire episode involved. His evidence 
consisted mainly of a story by Claude Sitton, the southern 
correspondent of The Times, published on March 2, 1960 
(R. 655, 656-7, PL Ex. 169, R. 1568), a report requested 
by The Times from Don McKee, its “ stringer”  in Mont­
gomery, after institution of this suit was threatened (R. 
590-593, PI. Ex. 348, R. 1931-1935), and a later telephoned 
report from Sitton to counsel for The Times, made on 
May 5, after suit was brought (R. 593-595, PL Ex. 348, R. 
1935-1937).

This evidence showed that a succession of student 
demonstrations had occurred in Montgomery, beginning 
with an unsuccessful effort by some thirty Alabama State 
College students to obtain service at a lunch counter in 
the Montgomery County Court House. A  thousand students 
had marched on March 1, 1960, from the College campus 
to the State Capitol, upon the steps of which they said 
the Lord’s Prayer and sang the National Anthem before 
marching back to the campus. Nine student leaders of the 
lunch counter demonstration were expelled on March 2 
by the State Board of Education, upon motion of Governor 
Patterson, and thirty-one others were placed on probation 
(R. 696-699, Pl. Ex. 364, R. 1972-1974), but the singing



8

at the Capitol was not the basis of the disciplinary action 
or mentioned at the meeting of the Board (R. 701). Ala­
bama State College students stayed away from classes 
on March 7 in a strike in sympathy with those expelled 
hut virtually all of them returned to class after a day and 
most of them re-registered or had already done so. On 
March 8, there was another student demonstration at a 
church near the campus, followed by a march upon the 
campus, with students dancing around in conga lines and 
some becoming rowdy. The superintendent of grounds 
summoned the police and the students left the campus, but 
the police arrived as the demonstrators marched across 
the street and arrested thirty-two of them for disorderly 
conduct or failure to obey officers, charges on which they 
later pleaded guilty and were fined in varying amounts 
(R. 677-680, 681, 682).

A  majority of the student body was probably involved 
at one time or another in the protest but not the “ entire 
student body” . The police did not at any time “ ring”  
the campus, although they were deployed near the campus 
on three occasions in large numbers. The campus dining 
hall was never “ padlocked”  and the only students who 
may have been barred from eating were those relatively 
few who had neither signed a pre-registration application 
nor requested temporary meal tickets (R. 594, 591).

The paragraph was thus inaccurate in that it exagger­
ated the number of students involved in the protest and 
the extent of police activity and intervention. If, as the 
respondent argued (R. 743), it implied that the students 
were expelled for singing on the steps of the Capitol, this 
was erroneous; the expulsion was for the demand for 
service at a lunch counter in the Courthouse. There was,



9

moreover, no foundation for the charge that the dining hall 
was padlocked in an effort to starve the students into sub­
mission, an allegation that especially aroused resentment in 
Montgomery (R. 605, 607, 949, 2001, 2002, 2007).

(b) The portion of the sixth paragraph of the state­
ment relied on by respondent read as follows:

“ Again and again the Southern violators have 
answered Dr. K ing’s peaceful protests with intimi­
dation and violence. They have bombed his home, 
almost killing his wife and child. They have assaulted 
his person. They have arrested him seven times—for 
‘ speeding’, ‘ loitering’ and similar ‘ offenses’. And 
now they have charged him with ‘ perjury’— a felony 
under which they could imprison him for ten years.”

As to this paragraph, which did not identify the time 
or place of the events recited, but which respondent read to 
allude to himself because it also “ describes police action”  
(R. 724), his evidence showed that Dr. K ing’s home had in 
fact been bombed twice when his wife and child were at 
home, though one of the bombs failed to explode—both of 
the occasions antedating the respondent’s tenure as Com­
missioner (R. 594, 685, 688); that Dr. King had been ar­
rested only four times, not seven, three of the arrests pre­
ceding the respondent’s service as Commissioner (R. 592, 
594-595, 703); that Dr. King had in fact been indicted for 
perjury on two counts, each carrying a possible sentence of 
five years imprisonment (R. 595), a charge on which he sub­
sequently was acquitted (R. 680). It also showed that 
while Dr. King claimed to have been assaulted when he 
was arrested some four years earlier for loitering outside 
a courtroom (R. 594), one of the officers participating in 
arresting him and carrying him to a detention cell at



1 0

headquarters denied that there was a physical assault (R. 
692-693)— this incident also antedating the respondent’s 
tenure as Commissioner (R. 694).

On the theory that the statement could be read to charge 
that the bombing of Dr. K ing’s home was the work of the 
police (R. 707), respondent was permitted to call evidence 
that the police were not involved; that they in fact dis­
mantled the bomb that did not explode; and that they did 
everything they could to apprehend the perpetrators of 
the bombings (R. 685-687)—also before respondent’s 
tenure as Commissioner (R. 688). In the same vein, 
respondent testified himself that the police had not bombed 
the King home or assaulted Dr. King or condoned the 
bombing or assaulting; and that he had had nothing to 
do with procuring K ing’s indictment (R. 707-709).

3. The Impact of the Statements on Respondent’s Rep­
utation.—As one of the three Commissioners of the City of 
Montgomery since October 5, 1959, specifically Commis­
sioner of Public Affairs, respondent’s duties were the 
supervision of the Police Department, Fire Department, 
Department of Cemetery and Department of Scales (R. 
703). He was normally not responsible, however, for day- 
to-day police operations, including those during the Ala­
bama State College episode referred to in the advertise­
ment, these being under the immediate supervision of 
Montgomery’s Chief of Police—though there was one 
occasion when the Chief was absent and respondent super­
vised directly (R. 720). It was stipulated that there were 
175 full time policemen in the Montgomery Police Depart­
ment, divided into three shifts and four divisions, and 
24 “ special traffic directors”  for control of traffic at the 
schools (R. 787).



11

As stated in respondent’s testimony, the basis for his 
role as aggrieved plaintiff was the “ feeling”  that the ad­
vertisement, which did not mention him or the Commission 
or Commissioners or any individual, “ reflects not only on 
me but on the other Commissioners and the community”  
(R. 724). He felt particularly that statements referring to 
“ police activities”  or “ police action”  were associated with 
himself, impugning his “ ability and integrity”  and reflect­
ing on him “ as an individual”  (R. 712, 713, 724). He also 
felt that the other statements in the passages complained 
of, such as that alluding to the bombing of King’s home, 
referred to the Commissioners, to the Police Department 
and to him because they were contained in the same para­
graphs as statements mentioning police activities (R. 717- 
718), though he conceded that as “ far as the expulsion of 
students is concerned, that responsibility rests with the 
State Department of Education”  (R. 716).

In addition to this testimony as to the respondent’s 
feelings, six witnesses were permitted to express their 
opinions of the connotations of the statements and their 
effect on respondent’s reputation.

Grover C. Hall, editor of the Montgomery Advertiser, 
who had previously written an editorial attacking the ad­
vertisement (R. 607, 613, 949), testified that he thought he 
would associate the third paragraph “ with the City Gov­
ernment—the Commissioners”  (R. 605) and “ would natur­
ally think a little more about the police commissioner”  (R. 
608). It was “ the phrase about starvation”  that led to the 
association; the “ other didn’t hit”  him “ with any particu­
lar force”  (R. 607, 608). He thought “ starvation is an 
instrument of reprisal and would certainly be indefensible 
. . .  in any case”  (R. 605).



12

Arnold D. Blackwell, a member of the Water Works 
Board appointed by the Commissioners (R. 621) and a busi­
nessman engaged in real estate and insurance (R. 613), 
testified that the third paragraph was associated in his 
mind with “ the Police Commissioner”  and the “ people on 
the police force ’ ’ ; that if it were true that the dining hall 
was padlocked in an effort to starve the students into sub­
mission, he would “ think that the people on our police 
force or the heads of our police force were acting without 
their jurisdiction and would not be competent for the posi­
tion”  (R. 617, 624). He also associated the statement about 
“ truck-loads of police”  with the police force and the Police 
Commissioner (R. 627). With respect to the “ Southern 
violators”  passage, he associated the statement about the 
arrests with “ the police force”  but not the “ sentences 
above that”  (R. 624) or the statement about the charge of 
perjury (R. 625).

Harry W. Kaminsky, sales manager of a clothing store 
(R. 634) and a close friend of the respondent (R. 644), also 
associated the third paragraph with “ the Commissioners”  
(R. 635), though not the statement about the expulsion of 
the students (R. 639). Asked on direct examination about 
the sentences in the sixth paragraph, he said that he “ would 
say that it refers to the same people in the paragraph that 
we look at before” , i.e., to “ The -Commissioners” , includ­
ing the respondent (R. 636). On cross-examination, how­
ever, he could not say that he associated those statements 
with the respondent, except that he thought that the refer­
ence to arrests “ implicates the Police Department . . .  or 
the authorities that would do that—arrest folks for speed­
ing and loitering and such as that”  (R. 639-640). In gen­
eral, he would “ look at”  the respondent when he saw “ the 
Police Department”  (R. 641).



13

H. M. Price, Sr., owner of a small food equipment busi­
ness (R. 644), associated “ the statements contained”  in 
both paragraphs with “ the head of the Police Department” , 
the respondent (R. 646). Asked what it was that made him 
think of the respondent, he read the first sentence of the 
third paragraph and added: “ Now, I would just auto­
matically consider that the Police Commissioner in Mont­
gomery would have to put his approval on those kind of 
things as an individual”  (R. 647). I f he believed the state­
ments contained in the two paragraphs to be true, he would 
“ decide that we probably had a young Gestapo in Mont­
gomery”  (R. 645-646).

William M. Parker, Jr., a friend of the respondent and 
of Mayor James (R. 651), in the service station business, 
associated “ those statements in those paragraphs”  with 
the City Commissioners (R. 650) and since the respondent 
“ was the Police Commissioner” , he “ thought of him first”  
(R. 651). I f  he believed the statements to be true, he testi­
fied that he would think the respondent “ would be trying to 
run this town with a strong arm— strong armed tactics, 
rather, going against the oath he took to run his office in a 
peaceful manner and an upright manner for all citizens of 
Montgomery”  (R. 650).

Finally, Horace W. White, proprietor of the P. C. White 
Truck Line (R. 662), a former employer of respondent (R. 
664), testified that both of the paragraphs meant to him 
“ Mr. L. B. Sullivan”  (R. 663). The statement in the adver­
tisement that indicated to him that it referred to the re­
spondent was that about “ truck-loads of police” , which 
made him think of the police and of respondent “ as being 
the head of the Police Department”  (R. 666). I f he be­



14

lieved the statements, he doubted whether he “ would want 
to be associated with anybody who would he a party to 
such things”  (R. 664) and he would not re-employ respond­
ent for P. C. White Truck Line if he thought that “ he al­
lowed the Police Department to do the things the paper say 
he did”  (R. 667, 664, 669).

None of the six witnesses testified that he believed any 
of the statements that he took to refer to respondent and 
all hut Hall specifically testified that they did not believe 
them (R. 623, 636, 647, 651, 667). None was led to think 
less kindly of respondent because of the advertisement (R. 
625, 638, 647, 651, 666). Nor could respondent point to any 
injury that he had suffered or to any sign that he was held 
in less esteem (R. 721-724).

Four of the witnesses, moreover, Blackwell, Kaminsky, 
Price and Parker, saw the publication first when it was 
shown to them in the office of respondent’s counsel to equip 
them as witnesses (R. 618, 637, 643, 647, 649). Their testi­
mony should, therefore, have been disregarded under the 
trial court’s instruction that the jury should “ disregard . . . 
entirely”  the testimony of any witness “ based upon his 
reading of the advertisement complained of here, only after 
having been shown a copy of same by the plaintiff or his 
attorneys”  (R. 833). White did not recall when he first 
saw the advertisement; he believed, though he was not sure, 
that “ somebody cut it out of the paper and mailed it ”  to 
him or left it on his desk (R. 662, 665, 668). Only Hall, 
whose testimony was confined to the phrase about starving 
students into submission (R. 605, 607), received the publi­
cation in ordinary course at The Montgomery Advertiser 
(R. 606, 726-727).



15

4. The Circumstances of the Publication.—The adver­
tisement was published by The Times upon an order from 
the Union Advertising Service, a reputable New York ad­
vertising agency, acting for the Committee to Defend 
Martin Luther King (R. 584-585, 737, PL Ex. 350, R. 1957). 
The order was dated March 28,1960, but the proposed type­
script of the ad had actually been delivered on March 23 
by John Murray, a writer acting for the Committee, who 
had participated in its composition (R. 731, 805). Murray 
gave the copy to Gershon Aaronson, a member of the Na­
tional Advertising Staff of The Times specializing in “ edi­
torial type”  advertisements (R. 731, 738), who promptly 
passed it on to technical departments and sent a thermo-fax 
copy to the Advertising Acceptability Department, in 
charge of the screening of advertisements (R. 733, 734, 756). 
D. Vincent Redding, the manager of that department, read 
the copy on March 25 and approved it for publication (R. 
758). He gave his approval because he knew nothing to 
cause him to believe that anything in the proposed text was 
false and because it bore the endorsement of “ a number of 
people who are well known and whose reputation”  he “ had 
no reason to question”  (R. 758, 759-760, 762-763). He did 
not make or think it necessary to make any further check 
as to the accuracy of the statements (R. 765, 771).

When Redding passed on the acceptability of the adver­
tisement, the copy was accompanied by a letter from A. 
Philip Randolph, Chairman of the Committee, to Aaron­
son, dated March 23 (R. 587, 757, Def. Ex. 7, R. 1992) and 
reading:

“ This will certify that the names included on the 
enclosed list are all signed members of the Committee



16

to Defend Martin Luther King and the Struggle for 
Freedom in the South.

“ Please be assured that they have all given us per­
mission to use their names in furthering the work 
of our Committee.”

The routine of The Times is to accept such a letter from 
a responsible person to establish that names have not been 
used without permission and Bedding followed that prac­
tice in this case (R. 759). Each of the individual defend­
ants testified, however, that he had not authorized the Com­
mittee to use his name (R. 787-804) and Murray testified 
that the original copy of the advertisement, to which the 
Randolph letter related, did not contain the statement “ We 
in the South . . . warmly endorse this appeal”  or any 
of the names printed thereunder, including those of these 
defendants. That statement and those names were added, 
he explained, to a revision of the proof on the suggestion 
of Bayard Rustin, the Director of the Committee. Rustin 
told Murray that it was unnecessary to obtain the consent 
of the individuals involved since they were all members 
of the Southern Christian Leadership Conference, as indi­
cated by its letterhead, and “ since the SCLC supports the 
work of the Committee . . .  he [Rustin] . . . felt that 
there would be no problem at all, and that you didn’t 
even have to consult them”  (R. 806-809). Redding did not 
recall this difference in the list of names (R. 767), though 
Aaronson remembered that there “ were a few changes 
made . . . prior to publication”  (R. 739).

The New York Times has set forth in a booklet its “ Ad­
vertising Acceptability Standards”  (R. 598, PI. Ex. 348, 
Exh. F, R. 1952) declaring, inter alia, that The Times does



17

not accept advertisements that are fraudulent or deceptive, 
that are “ ambiguous in wording and . . . may mislead”  
or “ [ajttacks of a personal character” . In replying to 
the plaintiff’s interrogatories, Harding Bancroft, Secre­
tary of The Times, deposed that “ as the advertisement 
made no attacks of a personal character upon any indi­
vidual and otherwise met the advertising acceptability 
standards promulgated”  by The Times, D. Vincent Redding 
had approved it (R. 585).

Though Redding and not Aaronson was thus responsible 
for the acceptance of the ad, Aaronson was cross-examined 
at great length about such matters as the clarity or am­
biguity of its language (R. 741-753), the court allowing the 
interrogation on the stated ground that “ this gentleman 
here is a very high official of The Times” , which he, of 
course, was not (R. 744). In the course of this colloquy, 
Aaronson contradicted himself on the question whether the 
word “ they”  in the “ Southern violators”  passage refers 
to “ the same people”  throughout or to different people, 
saying first “ It is rather difficult to tell”  (R. 745) and 
later: “ I think now that it probably refers to the same 
people”  (R. 746). Redding was not interrogated on this 
point, which respondent, in his Brief in Opposition, deemed 
established by what Aaronson “ conceded”  (Brief in Oppo­
sition, p. 7).

The Times was paid “ a little over”  $4800 for the pub­
lication of the advertisement (R. 752). The total circu­
lation of the issue of March 29, 1960, was approximately 
650,000, of which approximately 394 copies were mailed 
to Alabama subscribers or shipped to newsdealers in the 
State, approximately 35 copies going to Montgomery 
County (R. 601-602, PI. Ex. 348, R. 1942-1943).



18

5. The Response to the Demand for a Retraction.— On
April 8, 1960, respondent wrote to the petitioner and to the 
four individual defendants, the letters being erroneously- 
dated March 8 (R. 588, 671, 776, Pl. Ex. 348, 355-358, R. 
1949,1962-1968). The letters, which were in identical terms, 
set out the passages in the advertisement complained of by- 
respondent, asserted that the “ foregoing matter, and the 
publication as a whole charge me with grave misconduct and 
of [sic] improper actions and omissions as an offiical of the 
City of Montgomery”  and called on the addressee to “ pub­
lish in as prominent and as public a manner as the fore­
going false and defamatory material contained in the 
foregoing publication, a full and fair retraction of the 
entire false and defamatory matter so far as the same 
relates to me and to my conduct and acts as a public official 
of the City of Montgomery, Alabama.”

TJpon receiving this demand and the report from Don 
McKee, the Times stringer in Montgomery referred to 
above (p. 7), petitioner’s counsel wrote to the respondent 
on April 15, as follows (R. 589, PI. Ex. 363, R. 1971) :

Dear Mr. Commissioner:

Your letter of April 8 sent by registered mail to 
The New York Times Company has been referred for 
attention to us as general counsel.

You will appreciate, we feel sure, that the state­
ments to which you object were not made by The New 
York Times but were contained in an advertisement 
proffered to The Times by responsible persons.

We have been investigating the matter and are 
somewhat puzzled as to how you think the statements 
in any way reflect on you. So far, our investigation



19

would seem to indicate that the statements are sub­
stantially correct with the sole exception that we find 
no justification for the statement that the dining hall 
in the State College was “ padlocked in an attempt to 
starve them into submission.”

We shall continue to look into the subject matter 
because our client, The New York Times, is always 
desirous of correcting any statements which appear in 
its paper and which turn out to be erroneous.

In the meanwhile you might, if you desire, let us 
know in what respect you claim that the statements in 
the advertisement reflect on you.

Very truly yours,

L ord, Day & L ord

The respondent filed suit on April 19, without answering 
this letter.

Subsequently, on May 9, 1960, Governor John Patterson 
of Alabama, sent a similar demand for a retraction to The 
Times, asserting that the publication charged him “ with 
grave misconduct and of [sic] improper actions and omis­
sions as Governor of Alabama and Ex-Officio Chairman of 
the State Board of Education of Alabama”  and demanding 
publication of a retraction of the material so far as it re­
lated to him and to his conduct as Governor and Ex-Officio 
Chairman.

On May 16, the President and Publisher of The Times 
wrote Governor Patterson as follows (R. 773, Def. Ex. 9, 
R. 1998):

Dear Governor Patterson:
In response to your letter of May 9th, we are en­

closing herewith a page of today’s New York Times 
which contains the retraction and apology requested.



20

As stated in the retraction, to the extent that any­
one could fairly conclude from the advertisement that 
any charge was made against you, The New York 
Times apologizes.

Faithfully yours,

Orvel Dryfoos

The publication in The Times (PI. Ex. 351, R. 1958), 
referred to in the letter, appeared under the headline 
“ Times Retracts Statement in A d ”  and the subhead “ Acts 
on Protest of Alabama Governor Over Assertions in Segre­
gation Matter” . After preliminary paragraphs reporting 
the Governor’s protest and quoting his letter in full, in­
cluding the specific language of which he complained, the 
account set forth a “ statement by The New York Times”  
as follows:

The advertisement containing the statements to 
which Governor Patterson objects was received by The 
Times in the regular course of business from and paid 
for by a recognized advertising agency in behalf of a 
group which included among its subscribers well- 
known citizens.

The publication of an advertisement does not con­
stitute a factual news report by The Times nor does 
it reflect the judgment or the opinion of the editors of 
The Times. Since publication of the advertisement, 
The Times made an investigation and consistent with 
its policy of retracting and correcting any errors or 
misstatements which may appear in its columns, here­
with retracts the two paragraphs complained of by the 
Governor.

The New York Times never intended to suggest by 
the publication of the advertisement that the Honor­



21

able John Patterson, either in his capacity as Governor 
or as ex-officio chairman of the Board of Education of 
the State of Alabama, or otherwise, was guilty of 
“ grave misconduct or improper actions and omission” . 
To the extent that anyone can fairly conclude from the 
statements in the advertisement that any such charge 
was made, The New York Times hereby apologizes to 
the Honorable John Patterson therefor.

The publication closed with a recapitulation of the names 
of the signers and endorsers of the advertisement and of 
the officers of the Committee to Defend Martin Luther King.

In response to a demand in respondent’s pre-trial in­
terrogatories to “ explain why said retraction was made 
but no retraction was made on the demand of the plaintiff” , 
Mr. Bancroft, Secretary of The Times, said that The 
Times published the retraction in response to the Gov­
ernor’s demand “ although in its judgment no statement in 
said advertisement referred to John Patterson either per­
sonally or as Governor of the State of Alabama, nor re­
ferred to this plaintiff [Sullivan] or any of the plaintiffs 
in the companion suits. The defendant, however, felt that 
on account of the fact that John Patterson held the high 
office of Governor of the State of Alabama and that he 
apparently believed that he had been libeled by said ad­
vertisement in his capacity as Governor of the State of 
Alabama, the defendant should apologize”  (R. 595-596, PI. 
Ex. 348, R. 1942). In further explanation at the trial, 
Bancroft testified: “ We did that because we didn’t want 
anything that was published by The Times to be a re­
flection on the State of Alabama and the Governor was, as 
far as we could see, the embodiment of the State of 
Alabama and the proper representative of the State and,



22

furthermore, we had by that time learned more of the 
actual facts which the ad purported to recite and, finally, 
the ad did refer to the action of the State authorities and 
the Board of Education presumably of which the Governor 
is ex-officio chairman . . . ”  (R. 776-777). On the other hand, 
he did not think that “ any of the language in there re­
ferred to Mr. Sullivan”  (R. 777).

This evidence, together with Mr. Bancroft’s further 
testimony that apart from the statement in the advertise­
ment that the dining hall was padlocked, he thought that 
“ the tenor of the content, the material of those two para­
graphs in the ad . . . are . . . substantially correct”  (R. 781, 
785), was deemed by the Supreme Court of Alabama to lend 
support to the verdict of the jury and the size of its award 
(R. 1178).

6. The Rulings on the Merits.—The Circuit Court held 
that the facts alleged and proved sufficed to establish lia­
bility of the defendants, if the jury was satisfied that the 
statements complained of by respondent were published 
of and concerning him. Overruling a demurrer to the com­
plaint (R. 108) and declining to direct a verdict for peti­
tioner (R. 728-729, 818), the court charged the jury (R. 
819-826) that the statements relied on by the plaintiff were 
“ libelous per se” ; that “ the law implies legal injury from 
the bare fact of the publication itself” ; that “ falsity and 
malice are presumed” ; that “ [gjeneral damages need not 
be alleged or proved but are presumed”  (R. 824); and 
that “ punitive damages may be awarded by the jury even 
though the amount of actual damages is neither found nor 
shown”  (R. 825). While the court instructed, as requested, 
that “ mere negligence or carelessness is not evidence of 
actual malice or malice in fact, and does not justify an



23

award of exemplary or punitive damages”  (R. 836), it re­
fused to instruct that the jury must be “ convinced”  of 
malice, in the sense of “ actual intent”  to harm or “ gross 
negligence and recklessness”  to make such an award (R. 
844). It also declined to require that a verdict for respond­
ent differentiate between compensatory and punitive dam­
ages (R. 846).

Petitioner challenged these rulings as an abridgment 
of the freedom of the press, in violation of the First and 
the Fourteenth Amendments, and also contended that the 
verdict was confiscatory in amount and an infringement 
of the constitutional protection (R. 73-74, 898, 929-930, 935, 
936-937, 945-946, 948). A  motion for new trial, assigning 
these grounds among others (R. 896-949), was denied by 
the Circuit Court (R. 969).

The Supreme Court of Alabama sustained these rulings 
on appeal (R. 1139, 1180). It held that where “ the words 
published tend to injure a person libeled by them in his 
reputation, profession, trade or business, or charge him 
with an indictable offense, or tends to bring the individual 
into public contempt,”  they are “ libelous per se” ; that 
“ the matter complained of is, under the above doctrine, 
libelous per se, if it was published of and concerning the 
plaintiff”  (R. 1155); and that it was actionable without 
“ proof of pecuniary injury . . ., such injury being im­
plied”  (R. 1160-1161). It found no error in the trial 
court’s ruling that the complaint alleged and the evidence 
established libelous statements which the jury could find 
were “ of and pertaining to”  respondent (R. 1158, 1160), 
reasoning as follows (R. 1157):

“ We think it common knowledge that the average 
person knows that municipal agents, such as police and



24

firemen, and others, are under the control and direction 
of the city governing body, and more particularly under 
the direction and control of a single commissioner. In 
measuring the pei'formance or deficiencies of such 
groups, praise or criticism is usually attached to the 
official in complete control of the body.”

The Court also approved the trial court’s charge as “ a 
fair, accurate and clear expression of the governing legal 
principles”  (R. 1167) and sustained its determination that 
the damages awarded by the verdict were not excessive 
(R. 1179). On the latter point, the Court endorsed a state­
ment in an earlier opinion that there “ is no legal measure 
of damages in cases of this character”  (R. 1177) and held 
to be decisive that ‘ ‘ The Times in its own files had articles 
already published which would have demonstrated the 
falsity of the allegations in the advertisement” ; that “ The 
Times retracted the advertisement as to Governor Pat­
terson, but ignored this plaintiff’s demand for retraction”  
though the “ matter contained in the advertisement was 
equally false as to both parties” ; that in “ the trial below 
none of the defendants questioned the falsity of the alle­
gations in the advertisement”  and, simultaneously, that 
“ during his testimony it was the contention of the Secre­
tary of The Times that the advertisement was ‘ substan­
tially correct’ ”  (R. 1178).

Petitioner’s submissions under the First and the Four­
teenth Amendments (assignments of error 81, 289-291, 294, 
296, 298, 306-308, 310; R. 1055, 1091-1094, 1096-1097, 1098) 
were summarily rejected with the statements that the 
“ First Amendment of the U.S. Constitution does not pro­
tect libelous publications”  and the “ Fourteenth Amend­
ment is directed against State action and not private 
action”  (R. 1160).



25

7. The Jurisdiction of the Alabama Courts.—Respond­
ent sought to effect service in this action (R. 11) by deliv­
ery of process to Don McKee, the New York Times stringer 
in Montgomery, claimed to be an agent under § 188, Ala­
bama Code of 1940, title 7 (Appendix A, infra, pp. 91-92), 
and by delivery to the Secretary of State under §199(1), 
the “ long-arm”  statute of the State (Appendix A, infra, 
pp. 92-95). Petitioner, appearing specially and only for this 
purpose, moved to quash the service on the ground, among 
others, that the subjection of The Times to Alabama juris­
diction in this action would transcend the territorial limi­
tations of due process in violation of the Fourteenth 
Amendment, impose a burden on interstate commerce for­
bidden by the Commerce Clause and abridge the freedom 
of the press (R. 39, 43-44, 47; see also, e.g., R. 129).

The evidence adduced upon the litigation of the motion 
(R. 130-566) established the following facts:

Petitioner is a New York corporation which has not 
qualified to do business in Alabama or designated anyone 
to accept service of process there (R. 134-135). It has no 
office, property or employees resident in Alabama (R. 146, 
403-404, 438-439). Its staff correspondents do, however, visit 
the State as the occasion may arise for purposes of news­
gathering. From the beginning of 1956 through April, 1960, 
nine correspondents made such visits, spending, the courts 
below found, 153 days in Alabama, or an average of some 
thirty-six man-days per year. In the first five months of 
1960, there were three such visits by Claude Sitton, the 
staff correspondent stationed in Atlanta (R. 311-314, 320, 
PL Ex. 91-93, R. 1356-1358) and one by Harrison Salis­
bury (R. 145, 239, PI. Ex. 117, R. 1382). The Times also 
had an arrangement with newspapermen, employed by 
Alabama journals, to function as “ stringers” , paying



26

them for stories they sent in that were requested or 
accepted at the rate of a cent a word and also using them 
occasionally to furnish information to the desk (e . g R. 175, 
176) or to a correspondent (R. 136-137, 140, 153, 154). The 
effort was to have three such stringers in the State, includ­
ing one in Montgomery (R. 149, 309) but only two received 
payments from The Times in 1960, Chadwick of South Mag­
azine, who was paid $155 to July 26, and McKee of The 
Montgomery Advertiser, who was paid $90, covering both 
dispatches and assistance given Salisbury (R. 140, 143, 155, 
159, 308-309, 441). McKee was also asked to investigate the 
facts relating to respondent’s claim of libel, which he did 
(R. 202, 207). The total payments made by petitioner to 
stringers throughout the country during the first five 
months of 1960 was about $245,000 (R. 442). Stringers are 
not treated as employees for purposes of taxes or employee 
benefits (R. 439-440, 141-143).

The advertisement complained of in this action was 
prepared, submitted and accepted in New York, where the 
newspaper is published (R. 390-393, 438). The total daily 
circulation of The Times in March, 1960, was 650,000, of 
which the total sent to Alabama was 394 — 351 to mail sub­
scribers and 43 to dealers. The Sunday circulation was 
1,300,000, of which the Alabama shipments totaled 2,440 
(Def. Ex. No. 4, R. 1981, R. 401-402). These papers were 
either mailed to subscribers who had paid for a subscription 
in advance (R. 427) or they were shipped prepaid by rail 
or air to Alabama newsdealers, whose orders were unsolic­
ited (R. 404-408, 444) and with whom there was no con­
tract (R. 409). The Times would credit dealers for papers 
which were unsold or arrived late, damaged or incomplete, 
the usual custom being for the dealer to get the irregu­
larities certified by the railroad baggage man upon a card



27

provided by The Times (R. 408-409, 410-412, PI. Ex. 276- 
309, R. 1751-1827, R. 414, 420-426), though this formality 
had not been observed in Alabama (R. 432-436). Gross 
revenue from this Alabama circulation was approximately 
$20,000 in the first five months of 1960 of a total gross 
from circulation of about $8,500,000 (R. 445). The Times 
made absolutely no attempt to solicit or promote its sale 
or distribution in Alabama (R. 407-408, 428, 450, 485).

The Times accepted advertising from Alabama sources, 
principally advertising agencies which sent their copy to 
New York, where any contract for its publication was made 
(R. 344-349, 543); the agency would then be billed for cost, 
less the amount of its 15% commission (R. 353-354). The 
New York Times Sales, Inc., a wholly-owned subsidiary 
corporation, solicited advertisements in Alabama, though 
it had no office or resident employees in the State (R. 359- 
361, 539, 482). Two employees of Sales, Inc. and two em­
ployees of The Times spent a total of 26 days in Alabama 
for this purpose in 1959; and one o f the Sales, Inc. men 
spent one day there before the end of May in 1960 (R. 336- 
338, Def. Ex. 1, R. 1978, 546, 548-551). Alabama advertis­
ing linage, both volunteered and solicited, amounted to 5471 
in 1959 of a total of 60,000,000 published; it amounted to 
13,254 through May of 1960 of a total of 20,000,000 lines (R. 
342-344, 341, Def. Ex. 2, R. 1979). An Alabama supplement 
published in 1958 (R. 379, PI. Ex. 273, R. 1689-1742) pro­
duced payments by Alabama advertisers of $26,801.64 (R. 
380). For the first five months of 1960 gross revenue from 
advertising placed by Alabama agencies or advertisers 
was $17,000 to $18,000 of a total advertising revenue of 
$37,500,000 (R. 443). The gross from Alabama advertising 
and circulation during this period was $37,300 of a national 
total of $46,000,000 (R. 446).



28

On these facts, the courts below held that petitioner was 
subject to the jurisdiction of the Circuit Court in this 
action, sustaining both the service on McKee as a claimed 
agent and the substituted service on the Secretary of State 
and rejecting the constitutional objections urged (E. 49, 
51-57, 1139, 1140-1151). Both courts deemed the news­
gathering activities of correspondents and stringers, the 
solicitation and publication of advertising from Alabama 
sources and the distribution of the paper in the State to 
constitute sufficient Alabama “ contacts”  to support the 
exercise of jui'isdiction (R. 56-57, 1142-1147). They also 
held that though petitioner had appeared specially upon the 
motion for the sole purpose of presenting these objections, 
as permitted by the Alabama practice, the fact that the 
prayer for relief asked for dismissal for “ lack of jurisdic­
tion of the subject matter”  of the action, as well as want of 
jurisdiction of the person of defendant, constituted a gen­
eral appearance and submission to the jurisdiction of the 
Court (R, 49-51, 1151-1153).

Summary of Argument

I
Under the doctrine of “ libel per se”  applied below, a 

public official is entitled to recover “ presumed”  and puni­
tive damages for a publication found to be critical of the 
official conduct of a governmental agency under his general 
supervision if a jury thinks the publication “ tends”  to 
“ injure”  him “ in his reputation”  or to “ bring”  him “ into 
public contempt”  as an official. The publisher has no de­
fense unless he can persuade the jury that the publication 
is entirely true in all its factual, material particulars. The



29

doctrine not only dispenses with proof of injury by the 
complaining official, but presumes malice and falsity as 
well. Such a rule of liability woi’ks an abridgment of the 
freedom of the press.

The court below entirely misconceived the constitutional 
issues, in thinking them disposed of by the propositions 
that “ the Constitution does not protect libelous publica­
tions”  and that the “ Fourteenth Amendment is directed 
against State action and not private action”  (B. 1160). The 
requirements of the First Amendment are not satisfied by 
the “ mere labels”  of State law. N. A. A. C. P. v. Button, 
371 U. S. 415, 429 (1963); see also Beauharnais v. Illinois, 
343 U. S. 250, 263-264 (1952). The rule of law and the judg­
ment challenged by petitioner are, of course, state action 
within the meaning of the Fourteenth Amendment.

If libel does not enjoy a talismanic insulation from the 
limitations of the First and Fourteenth Amendments, the 
principle of liability applied below infringes “ these basic 
constitutional rights in their most pristine and classic 
form.”  Edwards v. South Carolina, 372 U. S. 229, 235 
(1963). Whatever other ends are also served by freedom of 
the press, its safeguard “ was fashioned to assure unfet­
tered interchange of ideas for the bringing about of politi­
cal and social changes desired by the people.”  Roth v. 
United States, 354 U. S. 476, 484 (1957). It is clear that the 
political expression thus protected by the fundamental law 
is not delimited by any test of truth, to be administered by 
juries, courts, or by executive officials. N. A. A. C. P. v. 
Button, supra, at 445; Cantwell v. Connecticut, 310 U. S. 
296, 310 (1940). It also is implicit in this Court’s decisions 
that speech or publication which is critical of governmental 
or official action may not be repressed upon the ground that



30

it diminishes the reputation of those officers whose conduct 
it deplores or of the government of which they are a part.

The closest analogy in the decided cases is provided by 
those dealing with contempt, where it is settled that concern 
for the dignity and reputation of the bench does not support 
the punishment of criticism of the judge or his decision, 
whether the utterance is true or false. Bridges v. Cali­
fornia, 314 U. S. 252, 270 (1941) ; Pennekamp v. Florida, 
328 U. S. 331, 342 (1946); Wood v. Georgia, 370 U. S. 375 
(1962). Comparable criticism of an elected, political official 
cannot consistently be punished as a libel on the ground that 
it diminishes his reputation. I f political criticism could be 
punished on the ground that it endangers the esteem with 
which its object is regarded, none safely could be uttered 
that was anything but praise.

That neither falsity nor tendency to harm official reputa­
tion, nor both in combination, justifies repression of the 
criticism of official conduct was the central lesson of the 
great assault on the short-lived Sedition Act of 1798, which 
the verdict of history has long deemed inconsistent with the 
First Amendment. The rule of liability applied below is 
even more repressive in its function and effect than that 
prescribed by the Sedition A ct: it lacks the safeguards of 
criminal sanctions; it does not require proof that the de­
fendant’s purpose was to bring the official into contempt or 
disrepute; it permits, as this case illustrates, a multiplica­
tion of suits based on a single statement; it allows legally 
limitless awards of punitive damages. Moreover, reviving 
by judicial decision the worst aspect of the Sedition Act, 
the doctrine of this case forbids criticism of the govern­
ment as such on the theory that top officers, though they are



31

not named in statements attacking the official conduct of 
their agencies, are presumed to be hurt because such cri­
tiques are “ attached to”  them (R. 1157).

Assuming, without conceding, that the protection of 
official reputations is a valid interest of the State and that 
the Constitution allows room for the “ accommodation”  of 
that interest and the freedom of political expression, the 
rule applied below is still invalid. It reflects no compromise 
of the competing interests; that favored by the First 
Amendment has been totally rejected, the opposing interest 
totally preferred. If there is scope for the protection of 
official reputation against criticism of official conduct, 
measures of liability far less destructive of the freedom of 
expression are available and adequate to serve that end. 
It might he required, for example, that the official prove 
special damage, actual malice, or both. The Alabama rule 
embraces neither mitigation. Neither would allow a judg­
ment for respondent on the evidence that he presents.

The foregoing arguments are fortified by the privilege 
the law of libel grants to an official if he denigrates a private 
individual. It would invert the scale of values vital to a 
free society if citizens discharging the “ political duty”  of 
“ public discussion”  (Brandeis, J., concurring in Whitney 
v. California, 274 U. S. 357, 375 [1927]) did not enjoy a fair 
equivalent of the immunity granted to officials as a neces­
sary incident of the performance of official duties.

Finally, respondent’s argument that the publication is 
a “ commercial advertisment” , beyond the safeguard of the 
First Amendment, is entirely frivolous. The statement was 
a recital of grievances and protest against claimed abuse 
dealing squarely with the major issue of our time.



32

II

Whether or not the rule of liability is valid on its face, 
its application in this case abridges freedom of the press. 
For nothing in the evidence supports a finding of the type 
of injury or threat to the respondent’s reputation that con­
ceivably might justify repression of the publication or give 
ground for the enormous judgment rendered on the verdict.

Complaining broadly against suppression of Negro 
rights throughout the South, the publication did not name 
respondent or the Commission of which he is a member and 
plainly was not meant as an attack on him or any other 
individual. Its protests and its targets were impersonal: 
“ the police” , “ the state authorities” , “ the Southern vio­
lators” . The finding that these collective generalities em­
bodied an allusion to respondent’s personal identity rests 
solely on the reference to “ the police”  and on his jurisdic­
tion over that department. But the police consisted of too 
large a group for such a personal allusion to be found. 
The term “ police”  does not, in fact, mean all policemen. 
No more so does it mean the Mayor or Commissioner in 
charge. This fatal weakness in the claim that the respond­
ent was referred to by the publication was not cured by his 
own testimony or that of his six witnesses; they did no 
more than express the opinion that “ police”  meant the 
respondent, because he is Commissioner in charge. These 
“ mere general asseverations”  (Norris v. Alabama, 294 
U. S. 587, 595 [1935]) were not evidence of what the pub­
lication said or what it reasonably could be held to mean.

Even if the statements that refer to ‘ ‘ the police ’ ’ could 
validly be taken to refer to the respondent, there was 
nothing in those statements that suffices to support the



33

judgment. Where the publication said that “ truckloads”  
of armed police “ ringed the Alabama State College 
Campus” , the fact was that only “ large numbers”  of police 
“ were deployed near the campus”  upon three occasions, 
without ringing it on any. And where the statement said 
“ They have arrested him seven times” , the fact was that 
Dr. King had been arrested only four times. That these 
exaggerations or inaccuracies cannot rationally be regarded 
as tending to injure the respondent’s reputation is entirely 
clear. The advertisement was also wrong in saying that 
when “ the entire student body protested to state authori­
ties by refusing to re-register, their dining hall was pad­
locked in an attempt to starve them into submission.”  Only 
a few students refused to re-register and the dining hall 
was never padlocked. But none of these erroneous asser­
tions had a thing to do with the police and even less with 
the respondent. It was equally absurd for respondent to 
claim injury because the publication correctly reported that 
some unidentified “ they”  had twice bombed the home of 
Dr. King, and to insist on proving his innocence of that 
crime as the trial court permitted him to do.

That the respondent sustained no injury in fact from 
the publication, the record makes entirely clear.

Even if there were in this record a basis for considering 
the publication an offense to the respondent’s reputation, 
there was no rational relationship between the gravity of 
the offense and the size of the penalty imposed. A  “ police 
measure may be unconstitutional merely because the 
remedy, although effective as means of protection, is unduly 
harsh or oppressive.”  Brandeis, J., concurring in Whitney 
v. California, 274 U. S. 357, 377 (1927). The proposition 
must apply with special force when the “ harsh”  remedy



34

has been explicitly designed as a deterrent of expression. 
Upon this ground alone, this monstrous judgment is re­
pugnant to the Constitution.

Ill
The assumption of jurisdiction in this action by the 

Circuit Court, based on service of process on McKee and 
substituted service on the Secretary of State, transcended 
the territorial limits of due process, imposed a forbidden 
burden on interstate commerce and abridged the freedom of 
the press.

There was no basis for the holding by the courts below 
that petitioner forfeited these constitutional objections by 
making an involuntary general appearance in the cause. 
The finding of a general appearance was based solely on 
the fact that when petitioner appeared specially and moved 
to quash the attempted service for want of jurisdiction of 
its person, as permitted by the Alabama practice, the prayer 
for relief concluded with a further request for dismissal for 
“ lack of jurisdiction of the subject matter of said action.”  
That prayer did not manifest an intention to “ consent”  or 
to make “ a voluntary submission to the jurisdiction of the 
court” , which the Alabama cases have required to convert 
a special into a general appearance. Ex parte Cullinan, 
224 Ala. 263, 266 (1931). The papers made entirely clear 
that the sole ruling sought by the petitioner was that it 
was not amenable to Alabama jurisdiction, as a New York 
corporation having no sufficient contact with the State to 
permit the assertion of jurisdiction in personam in an 
action based upon a publication in New York.

Moreover, even if petitioner could validly be taken to 
have made an involuntary general appearance, that appear­



35

ance would not bar tbe claim that in assuming jurisdiction 
of this action tbe state court imposed a forbidden burden 
on interstate commerce or that it abridged tbe freedom of 
tbe press. Davis v. Farmers Co-operative Co., 262 U. S. 312 
(1923); Michigan Central R. R. Co. v. Mix, 278 U. S. 492, 
496 (1929); Denver & R. G. W. R. Co. v. Terte, 284 U. S. 
284, 287 (1932).

The decisions of this Court do not support the bolding 
that tbe sporadic newsgatbering activities of correspond­
ents and stringers of The Times in Alabama, tbe occa­
sional solicitation and publication of advertising from Ala­
bama sources and tbe minuscule shipment of the newspaper 
to subscribers and newsdealers in tbe State constitute suf­
ficient Alabama contacts to satisfy the requirements of due 
process.

Tbe petitioner’s peripheral relationship to Alabama 
does not involve “ continuous corporate operations”  which 
are “ so substantial and of such a nature as to justify suit 
against it on causes of action arising from dealings entirely 
distinct from those activities.”  International Shoe Co. v. 
Washington, 326 IT. S. 310, 318 (1945); Perkins v. Benguet 
Mining Co., 342 U. S. 437 (1952). Hence, if tbe jurisdiction 
is sustained, it must be on the ground that tbe cause of 
action alleged is so “ connected with”  petitioner’s “ activi­
ties within tbe state”  as to “ make it reasonable, in tbe 
context of our federal system of government, to require 
tbe corporation to defend tbe particular suit which is 
brought there.”  International Shoe Co. v. Washington, 
supra, at 319, 317. There is no such connection. Here, as in 
Hanson v. Denckla, 357 U. S. 235, 252 (1958), tbe “ suit can­
not be said to be one to enforce an obligation that arose 
from a privilege tbe defendant exercised in”  tbe State.



36

The liability alleged is not based on any activity of corre­
spondents or stringers of The Times in covering the news 
in Alabama; and such activity does not rest on a privilege 
the State confers, given the rights safeguarded by the 
Constitution. Nor is this claim connected with the occa­
sional solicitation of advertisements in Alabama. Finally, 
the negligible circulation of The Times in Alabama does 
not involve an act of the petitioner within the State. Copies 
were mailed in New York to Alabama subscribers or 
shipped in New York to newsdealers who were purchasers, 
not agents of The Times.

Even if the shipment of the paper may he deemed an act 
of the petitioner in Alabama, it does not sustain the juris­
diction here affirmed. The standard of International Shoe 
is not “ simply mechanical or quantitative” ; its applica­
tion “ must depend rather upon the quality and nature of 
the activity in relation to the fair and orderly administra­
tion of the laws which it was the purpose of the due process 
clause to insure”  (326 U. S. at 319). Measured by this 
standard, a principle which would require, in effect, that 
almost every newspaper defend a libel suit in almost any 
jurisdiction of the country, however trivial its circulation 
there may be, would not further the “ fair and orderly ad­
ministration of the laws” . To the extent that this submis­
sion prefers the interest of the publisher to that of the 
plaintiff, the preference is one supported by the First 
Amendment. It also is supported by the fact that the plain­
tiff’s grievance rests hut fancifully on the insubstantial 
distribution of the publication in the forum, as distin­
guished from its major circulation out of state.

The decision in McGee v. International Life Ins. Co., 
355 U. S. 220 (1957) does not govern the disposition here.



37

The contract executed in McGee constituted a continuing 
legal relationship between the insurer and the insured 
within the State, a relationship which the States, with the 
concurrence of Congress, have long deemed to require spe­
cial regulation. Hanson v. Denckla, supra, at 252; Travel­
ers Health Assn. v. Virginia, 339 U. S. 643 (1950). Scripto 
v. Carson, 362 U. S. 207 (1960), relied on by respondent, 
is totally irrelevant to the problem of judicial jurisdiction.

The need for reciprocal restraints upon the power of 
the States to exert jurisdiction over men and institutions 
not within their borders is emphasized in our society by 
the full faith and credit clause of the Constitution. An Ala­
bama judgment in this case would have no practical im­
portance were it not enforceable as such in States where 
the petitioner’s resources are located. Thus jurisdictional 
delineations must be based on grounds that command 
general assent throughout the Union. No standard worthy 
of such general assent sustains the jurisdiction here.

If negligible state circulation of a paper published in 
another state suffices to establish jurisdiction of a suit for 
libel threatening the type of judgment rendered here, such 
distribution interstate cannot continue. So, too, if the 
interstate movement of correspondents provides a factor 
tending to sustain such jurisdiction, as the court below de­
clared, a strong barrier to such movement has been erected. 
In the silence of Congress, such movement and distribution 
are protected by the commerce clause against burdensome 
state action, unsupported by an overriding local interest. 
Such a burden has been imposed here.

Newsgathering and circulation are both aspects of the 
freedom of the press, safeguarded by the Constitution.



38

Neither can continue unimpaired if they subject the pub­
lisher to foreign jurisdiction on the grounds and of the 
scope asserted here. Accordingly, the jurisdictional de­
termination is also repugnant to the First Amendment.

Argument

The decision of the Supreme Court of Alabama, sus­
taining the judgment of the Circuit Court, denies rights 
that are basic to the constitutional conception of a free 
society and contravenes a postulate of our federalism.

We submit, first (Points I and II), that the decision 
gives a scope and application to the law of libel so restric­
tive of the right to protest and to criticize official conduct 
that it abridges the protected freedom of the press.

We argue, secondly (Point III), that in requiring peti­
tioner to answer in this action in the courts of Alabama, the 
decision violates the territorial restrictions that the Con­
stitution places on State process, casts a forbidden burden 
on interstate commerce and also abridges freedom of the 
press.

I

The decision rests upon a rule of liability for criti­
cism of official conduct that abridges freedom of the 
press.

Under the law of libel as declared below, a public official 
is entitled to recover “ presumed”  and punitive damages for 
a publication found to be critical of the official conduct of 
a governmental agency under his general supervision if 
a jury thinks the publication “ tends”  to “ injure”  him “ in 
his reputation”  or to “ bring”  him “ into public contempt”



39

as an official. The place of the official in the governmental 
hierarchy is, moreover, evidence sufficient to establish that 
his reputation has been jeopardized by statements that re­
flect upon the agency of which he is in charge. The pub­
lisher has no defense unless, as respondent noted in his 
Brief in Opposition (p. 18, n. 10), he can persuade the 
jury that the publication is entirely true in all its factual, 
material particulars. Ferdon v. Dickens, 161 Ala. 181, 185, 
200-201 (1909); Kirkpatrick v. Journal Publishing Com­
pany, 210 Ala. 10, 11 (1923); Alabama Ride Company v. 
Vance, 235 Ala. 263, 265 (1938); Johnson Publishing Co. v. 
Davis, 271 Ala. 474, 495 (1960). Unless he can discharge 
this burden as to stated facts, he has no privilege of com­
ment. Parsons v. Age-IIerald Pub. Co., 181 Ala. 439, 450 
(1913). Good motives or belief in truth, however reason­
able, are relevant only in mitigation of punitive damages 
if the jury chooses to accord them weight. Johnson Publish­
ing Co. v. Davis, supra, at 495. A  claim of truth which is 
regarded as unfounded affords evidence of malice, fortify­
ing the presumption that applies in any case (R. 1178).

We submit that such a rule of liability works an abridg­
ment of the freedom of the press, as that freedom has been 
defined by the decisions of this Court.

First: The State Court’s Misconception of the Constitu­
tional Issues. The reasons assigned by the Court below 
give no support to its rejection of petitioner’s constitutional 
objections.

The accepted proposition that “ [t]he Fourteenth 
Amendment is directed against State action and not private 
action”  (R. 1160) obviously has no application to the case. 
The petitioner has challenged a State rule of law applied



40

by a State court to render judgment carrying the full co­
ercive power of the State, claiming full faith and credit 
through the Union solely on that ground. The rule and 
judgment are, of course, State action in the classic sense of 
the subject of the Amendment’s limitations. See N.A.A.C.P. 
v. Alabama, 357 U. S. 449, 463 (1958); Barrows v. Jackson, 
346 U. S. 249, 254 (1953); Shelley v. Kraemer, 334 U. S. 
1, 14 (1948).

There is no greater merit in the other reason stated in 
the Court’s opinion, that “ the Constitution does not protect 
libelous publications.”  Statements to that effect have, to 
be sure, been made in passing in opinions of this Court. See 
Konigsberg v. State Bar of California, 366 U. S. 36, 49 
(1961); Times Film Corporation v. City of Chicago, 365 
U. S. 43, 48 (1961); Roth v. United States, 354 U. S. 476, 
486 (1957); Beauharnais v. Illinois, 343 U. S. 250, 266 
(1952); Pennekamp v. Florida, 328 U. S. 331, 348-349 
(1946) ; Cliaplinsky v. New Hampshire, 315 U. S. 568, 572 
(1942); Near v. Minnesota, 283 U. S. 697, 715 (1931). But 
here, no less than elsewhere, a “ great principle of consti­
tutional law is not susceptible of comprehensive statement 
in an adjective.”  Carter v. Carter Coal Co., 298 U. S. 238, 
327 (1936) (dissenting opinion of Cardozo, J.).

The statements cited meant no more than that the free­
dom of speech and of the press is not a universal absolute 
and leaves the States some room for the control of defama­
tion. None of the cases sustained the repression as a libel 
of expression critical of governmental action or was con­
cerned with the extent to which the law of libel may be used 
for the protection of official reputation. The dictum in 
Pennekamp that “ when the statements amount to defama­
tion, a judge has such remedy in damages for libel as do



41

other public servants”  left at large what may amount to 
defamation and what remedy a public servant has. Beau- 
harnais alone dealt with the standards used in judging 
any kind of libel, sustaining with four dissenting votes a 
state conviction for a publication held to be both defama­
tory of a racial group and “ liable to cause violence and 
disoi’der” . Mr. Justice Frankfurter’s opinion took pains 
to reserve this Court’s “ authority to nullify action which 
encroaches on freedom of utterance under the guise of 
punishing libel” -—adding that “ public men are, as it were, 
public property,”  that “ discussion cannot be denied and the 
right, as well as the duty, of criticism must not be stifled.”  
343 U. S. at 263-264. Those reservations, rather than the 
judgment, are apposite here.

Throughout the years this Court has measured by the 
standards of the First Amendment every formula for the 
repression of expression challenged at its bar. In that 
process judgment has been guided by the meaning and the 
purpose of the Constitution, interpreted as a “ continuing 
instrument of government”  (United States v. Classic, 313 
U. S. 299, 316 [1941]), not by the vagaries or “ mere 
labels”  o f state law. N. A. A. C. P. v. Button, 371 U. S. 415, 
429 (1963). See also Mr. Chief Justice Warren in Trop v. 
Dulles, 356 U. S. 86, 94 (1958). Hence libel, like sedition, 
insurrection, contempt, advocacy of unlawful acts, breach 
of the peace, disorderly conduct, obscenity or barratry, to 
name but prime examples, must be defined and judged in 
terms that satisfy the First Amendment. The law of libel 
has no more immunity than other law from the supremacy 
of its command.

Second: Seditious Libel and the Constitution. I f libel 
does not enjoy a talismanic insulation from the limitations



of the First and Fourteenth Amendments, the principle of 
liability applied below, resting as it does on a “ common law 
concept of the most general and undefined nature”  (Cant­
well v. Connecticut, 310 U. S. 296, 308 [1940]), infringes 
“ these basic constitutional rights in their most pristine 
and classic form.”  Edwards v. South Carolina, 372 U. S. 
229, 235 (1963).

Whatever other ends are also served by freedom of the 
press, its safeguard, as this Court has said, “ was fashioned 
to assure unfettered interchange of ideas for the bringing 
about of political and social changes desired by the people.”  
Roth v. United States, 354 U. S. 476, 484 (1957). Its object 
comprehends the protection of that “ right of freely exam­
ining public characters and measures, and of free communi­
cation among the people thereon,”  which, in the words of 
the Virginia Resolution, “ has ever been justly deemed the 
only effectual guardian of every other right.”  4 Elliot’s 
Debates (1876), p. 554. The “ opportunity for free political 
discussion”  and “ debate”  secured by the First Amend­
ment (Stromberg v. California, 283 U. S. 359, 369 [1931]; 
DeJonge v. Oregon, 299 IT. S. 353, 365 [1937] ; Terminiello 
v. Chicago, 337 U. S. 1, 4 [1949]), extends to “ vigorous 
advocacy ’  ’  no less than ‘  ‘ abstract ’  ’  disquisition. N.A.A. C. P. 
v. Button, 371 U. S. 415, 429 (1963). The “ prized Ameri­
can privilege to speak one’s mind, although not always with 
perfect good taste, ’ ’ applies at least to such speech ‘ ‘ on all 
public institutions.”  Bridges v. California, 314 U. S. 252, 
270 (1941). ‘ ‘ To many this is, and always will be, fo lly ; but 
we have staked upon it our all.”  L. Hand, J., in United 
States v. Associated Press, 52 F. Supp. 362, 372 (S. D. N. Y. 
1943). That national commitment has been affirmed re­
peatedly by the decisions of this Court, which have recog­

42



43

nized that the Amendment “ must be taken as a command 
of the broadest scope that explicit language, read in the 
context of a liberty-loving society, will allow”  (Bridges v. 
California, supra, at 263); and that its freedoms “ need 
breathing space to survive” . N. A. A. C. P. v. Button, 
supra, at 433.

It is clear that the political expression thus protected 
by the fundamental law is not delimited by any test of truth, 
to be administered by juries, courts, or by executive officials, 
not to speak of a test which puts the burden of establishing 
the truth upon the writer. Within this sphere of speech or 
publication, the constitutional protection does not turn upon 
“ the truth, popularity, or social utility of the ideas and 
beliefs which are offered.”  N. A. A. C. P. v. Button, supra, 
at 445. See also Speiser v. Randall, 357 U. S. 513, 526 
(1958). The Amendment “ pre-supposes that right con­
clusions are more likely to be gathered out of a multitude of 
tongues, than through any kind of authoritative selection.”  
United States v. Associated Press, supra, at 372. As Mr. 
Justice Roberts said in Cantwell v. Connecticut, 310 U. S. 
296, 310 (1940):

“ In the realm of religious faith, and in that of 
political belief, sharp differences arise. In both fields 
the tenets of one man may seem the rankest error to 
his neighbor. To persuade others to his own point of 
view, the pleader, as we know, at times, resorts to ex­
aggeration, to vilification of men who have been, or are, 
prominent in church or state, and even to false state­
ment. But the people of this nation have ordained in 
the light of history, that, in spite of the probability 
of excesses and abuses, these liberties are, in the long 
view, essential to enlightened opinion and right con­
duct on the part of the citizens of a democracy.”



44

These affirmations are the premises today of any ex­
ploration of the scope of First Amendment freedom under­
taken by this Court. It is implicit in those premises that 
speech or publication which is critical of governmental or 
official action may not be repressed upon the ground that 
it diminishes the reputation of the officers whose conduct it 
deplores or of the government of which they are a part.

The closest analogy in the decided cases is provided by 
those dealing with contempt.* It is settled law that con­
cern for the dignity and reputation of the bench does not 
support the punishment of criticism of the judge or his 
decision (Bridges v. California, supra, at 270), though the 
utterance contains “ half-truths”  and “ misinformation”  
(Pennekamp v. Florida, supra, 328 U. S. at 342, 343, 345). 
Any such repression must he justified, if it is justified at all, 
by danger of obstruction of the course of justice; and such 
danger must be clear and present. See also Craig v. 
Harney, 331 U. S. 367, 373, 376, 389 (1947); Wood v. 
Georgia, 370 U. S. 375, 388, 389, 393 (1962). We do not see 
how comparable criticism of an elected, political official 
may consistently be punished as a libel on the ground that 
it diminishes his reputation.** The supposition that judges 
are “ men of fortitude, able to thrive in a hardy climate”  
(Craig v. Harney, supra, at 376) must apply to commis­
sioners as well.

* Cf. Kalven, The Law of Defamation and the First Amendment, 
in Conference on the Arts, Publishing and the Law (U . of Chi. Law 
School), p. 4 : “ It is exactly correct to regard seditious libel, which 
has been the most serious threat to English free speech, as defama­
tion of government and government officials. It is at most a slight 
extension of terms to regard contempt of court by publication as 
a problem of defamation of the judicial process.”

** Statements about officials dealing with purely private matters 
unrelated to their official conduct or competence might raise different 
questions, not presented here.



45

These decisions are compelling not alone for their au­
thority but also for their recognition of the basic principle 
involved. I f  political criticism could be punished on the 
ground that it endangers the esteem with which its object 
is regarded, none safely could be uttered that was anything 
but praise.

The point was made in classic terms in Madison’s Re­
port on the Virginia Resolutions (4 Elliot’s Debates, p. 
575):

“ . . . it is manifestly impossible to punish the intent 
to bring those who administer the government into 
disrepute or contempt, without striking at the right 
of freely discussing public characters and measures; 
because those who engage in such discussions, must 
expect and intend to excite these unfavorable senti­
ments, so far as they may be thought to be deserved. 
To prohibit the intent to excite those unfavorable senti­
ments against those who administer the government, 
is equivalent to a prohibition of the actual excitement 
of them; and to prohibit the actual excitement of them 
is equivalent to a prohibition of discussions having 
that tendency and effect; which, again, is equivalent to 
a protection of those who administer the government, 
if they should at any time deserve the contempt or 
hatred of the people, against being exposed to it, by 
free animadversions on their characters and con­
duct. . . . ”

I f criticism of official conduct may not be repressed upon 
the ground that it is false or that it tends to harm official 
reputation, the inadequacy of these separate grounds is 
not surmounted by their combination. This was the basic 
lesson of the great assault on the short-lived Sedition Act 
of 1798, which first crystallized a national awareness of the



46

central meaning of the First Amendment. See, e.g., Levy, 
Legacy of Suppression (1960), p. 249 et. seq.; Smith, Free­
dom’s Fetters (1956).

That Act declared it a crime “ if any person shall write, 
print, utter or publish . . . any false, scandalous and mali­
cious writing or writings against the government of the 
United States, or either house of the Congress . . ., or the 
President . . ., with intent to defame the said government, 
or either house of the said Congress, or the said President, 
or to bring them or either of them, into contempt or dis­
repute ; or to excite against them, or either or any of them, 
the hatred of the good people of the United States. . . .”  
It specifically provided that the defendant might “ give in 
evidence in his defence, the truth of the matter contained in 
the publication charged as a libel” , a mitigation of the com­
mon law not achieved in England until Lord Campbell’s Act 
in 1843. It also reserved the right of the jury to ‘ ‘ determine 
the law and the fact, under the direction of the court, as 
in other cases” , accepting the reform effected by F ox ’s 
Libel Act of 1792. Act of July 14, 1798, Secs. 2, 3; 1 Stat. 
596. These qualifications were not deemed sufficient to 
defend the measure against a constitutional attack that won 
widespread support throughout the nation.

In the House debate upon the bill, John Nicholas of 
Virginia warned that a law ostensibly directed against false­
hood “ must be a very powerful restriction of the press, 
with respect to the publication of important truths.”  Men 
“ would be deterred from printing anything which should 
be in the least offensive to a power which might so greatly 
harass them. They would not only refrain from publish­
ing anything of the least questionable nature, but they 
would be afraid of publishing the truth, as, though true, 
it might not always be in their power to establish the truth 
to the satisfaction of a court of justice.”  8 Annals of



47

Congress 2144. Albert Gallatin delineated the same peril, 
arguing that “ the proper weapon to comhat error was 
truth, and that to resort to coercion and punishments in 
order to suppress writings attacking . . . measures . . ., 
was to confess that these could not be defended by any 
other means.”  Id. at 2164. Madison’s Eeport reiterates 
these points, observing that some “ degree of abuse is in­
separable from the proper use of every thing; and in no 
instance is this more true than in that of the press.”  4 
Elliot’s Debates, p. 571. Summing up the position in 
words that have echoed through the years, he asked (ibid.) r

“ Had Sedition Acts, forbidding every publication 
that might bring the constituted agents into contempt 
or disrepute, or that might excite the hatred of the 
people against the authors of unjust or pernicious 
measures, been uniformly enforced against the press, 
might not the United States have been languishing, at 
this day, under the infirmities of a sickly Confederation? 
Might they not, possibly, be miserable colonies, groan­
ing under a foreign yoke?”

Though the Sedition Act was never passed on by this 
Court, the verdict of history surely sustains the view that 
it was inconsistent with the First Amendment. Fines levied 
in its prosecutions were repaid by Act of Congress on this 
ground. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802 
(fine imposed on Congressman Matthew Lyon refunded to 
his heirs).* Its invalidity as “ abridging the freedom of

* The Committee reporting the bill described its basis as follows 
(H .R. Rep. No. 86, 26th Cong., 1st Sess., p. 3 (1840)) : “ All that 
now remains to be done by the representatives of a people who con­
demned this act of their agents as unauthorized, and transcending 
their grant of power, to place beyond question, doubt, or cavil, that 
mandate of the constitution prohibiting Congress from abridging the 
liberty of the press, and to discharge an honest, just, moral, and honor­
able obligation, is to refund from the Treasury the fine thus illegally 
and wrongfully obtained from one of their citizens. . . .”

See also Acts of June 17, 1844, cc. 136 and 165, 6 Stat. 924 and 
931.



48

the press”  was assumed by Calhoun, reporting to the Senate 
on February 4, 1836, as a matter “ which no one now 
doubts.”  Report with Senate bill No. 122, 24th Cong., 
1st Sess. p. 3. The same assumption has been made upon 
this Court. Holmes, J., dissenting in Abrams v. United 
States, 250 U. S. 616, 630 (1919); Jackson, J., dissenting in 
Beauharnais v. Illinois, 343 U. S. 250, 288-289 (1952). See 
also Cooley, Constitutional Limitations (8th ed. 1927), p. 
900; Chafee, Free Speech in the United States (1941), pp. 
27-29. These assumptions reflect a broad consensus that, 
we have no doubt, is part of present law.

Respondent points to Jefferson’s distinction between 
the right of Congress “ to control the freedom of the press” , 
which Jefferson of course denied, and that remaining in 
the States, which he admitted. Brief in Opposition, p. 19; 
see Dennis v. United States, 341 U. S. 494, 522, n. 4 (1961) 
(concurring opinion). That distinction lost its point with 
the adoption of the Fourteenth Amendment and the incor­
poration of the First Amendment freedoms in the “ liberty”  
protected against state action. See, e.g., Bridges v. Cali­
fornia, 314 U. S. 252, 268 (1941); Edwards v. South Caro­
lina, 372 U. S. 229, 235 (1963). The view that there may be 
a difference in the stringency of the commands embodied 
in the two Amendments (Jackson, J., in Beauharnais v. 
Illinois, supra, 343 U. S. at 288; Harlan, J., concurring in 
Alberts v. California, 354 U. S. 476, 501, 503 [1957]) has not 
prevailed in the decisions of this Court. Even if it had, we 
think it plain that there could be no reasonable difference 
in the strength of their protection of expression against 
“ frontal attack or suppression”  (Harlan, J., dissenting in 
N. A. A. C. P. v. Button, supra, 371 U. S. at 455) of the 
kind with which we are concerned.



49

The rule of liability applied below is even more repres­
sive in its function and effect than that prescribed by the 
Sedition Act. There is no requirement of an indictment 
and the case need not be proved beyond a reasonable doubt. 
It need not be shown, as the Sedition Act required, that 
the defendant’s purpose was to bring the official “ into con­
tempt or disrepute” ; a statement adjudged libelous per se 
is presumed to be “ false and malicious” , as the trial court 
instructed here (R. 824). There is no limitation to one 
punishment for one offensive statement, as would be re­
quired in a criminal proceeding. Respondent is only one 
of four commissioners, including one former incumbent, 
not to speak of the former Governor, who claim damages 
for the same statement. The damages the jury may award 
them if it deems the statement to apply to their official 
conduct are both general and punitive— the former for a 
“ presumed”  injury to reputation (R. 1160) and the latter 
“ not alone to punish the wrongdoer, but as a deterrent to 
others similarly minded”  (R. 1176). Such damages, more­
over, are fettered by “ no legal measure”  of amount (R. 
1177). It does not depreciate the stigma of a criminal con­
viction to assei’t that such a “ civil”  sanction is a more 
repressive measure than the type of sentence the Sedition 
Act permitted for the crime that it purported to define. 
Here, as in Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 
70 (1963), the “ form of regulation . . . creates hazards to 
protected freedoms markedly greater than those that at­
tend reliance upon the criminal law.”

It should he added that the principle of liability, as 
formulated by the Supreme Court of Alabama, goes even 
further than to punish statements critical of the official con­
duct of individual officials; it condemns the critique of gov­
ernment as such. This is accomplished by the declaration



50

that it is sufficient to sustain the verdict that in “ measuring 
the performance or deficiencies”  of governmental bodies, 
“ praise or criticism is usually attached to the official in 
complete control of the body”  (R. 1157). On this thesis 
it becomes irrelevant that the official is not named or 
referred to in the publication. The most impersonal denun­
ciation of an agency of government may be treated, in the 
discretion of the jury, as a defamation of the hierarchy of 
officials having such “ complete control” . A  charge, for 
example, of “ police brutality” , instead of calling for in­
vestigation and report by supervising officers, gives them 
a cause of action against the complainant, putting him to 
proof that will persuade the jury of the truth of his asser­
tion. Such a concept transforms the law of defamation 
from a method of protecting private reputation to a device 
for insulating government against attack.

When municipalities have claimed that they were libeled, 
they have met the answer that “ no court of last resort in 
this country has ever held, or even suggested, that prosecu­
tions for libel on government have any place in the Ameri­
can system of jurisprudence.”  City of Chicago v. Tribune 
Co., 307 111. 595, 601 (1923). See also City of Albany v. 
Meyer, 99 Cal. App. 651 (1929). That answer applies 
as well to converting “ libel on government”  into libel of 
the officials of whom it must be composed. The First 
Amendment, no less than the Fifteenth, “ nullifies sophis­
ticated as well as simple-minded modes”  of infringing the 
rights it guarantees. Lane v. Wilson, 307 U. S. 268, 275 
(1939); Bates v. Little Rock, 361 U. S. 516, 523 (1960); 
Louisiana ex rel. Gremillion v. N. A. A. C. P., 366 U. S. 
293, 297 (1961).

If this were not the case, the daily dialogue of politics 
would become utterly impossible. That dialogue includes,



51

as Mr. Justice Jackson said, the effort “ to discredit and 
embarrass the Government of the day by spreading exag­
gerations and untruths and by inciting prejudice or unrea­
soning discontent, not even hesitating to injure the Nation’s 
prestige among the family of nations.”  Communications 
Assn. v. Douds, 339 U. S. 382, 423 (1950) (opinion con­
curring and dissenting in part). Sound would soon give 
place to silence if officials in “ complete control”  of govern­
mental agencies, instead of answering their critics, could 
resort to friendly juries to amerce them for their words. 
Mr. Justice Brewer, in calling for the “ freest criticism”  
of this Court, employed a metaphor that is apposite: “ The 
moving waters are full of life and health; only in the still 
water is stagnation and death.”  Government by Injunc­
tion, 15 Nat. Corp. Rep. 848, 849 (1898). The First Amend­
ment guarantees that motion shall obtain.

Third: The Absence of Accommodation of Conflicting 
Interests. For the reasons thus far stated we contend that 
an expression which is critical of governmental conduct is 
within the “ core of constitutional freedom”  (Kingsley 
Pictures Corp. v. Regents, 360 U. S. 684, 689 [1959]) and 
may not be prohibited directly to protect the reputation 
of the government or its officials. A  threat to such repu­
tation is intrinsic to the function of such criticism. It is 
not, therefore, a “ substantive evil”  that a State has 
power to prevent by the suppression of the critical expres­
sion (cf., e.g., Schenck v. United States, 249 U. S. 47, 52 
[1919]; Dennis v. United States, 341 U .  S. 494, 506-507, 
508-510 [1951]); nor does the protection of such reputation 
provide one of those “ conflicting governmental interests”  
with which the protected freedom must “ be reconciled”  or 
to which it may validly be made to yield. Konigsberg v.



52

State Bar, 366 U. S. 36, 50 n. 11 (1961); Gibson v. Florida 
Legislative Comm., 372 U. S. 539, 546 (1963).

If this submission overstates the scope of constitutional 
protection, it surely does so only in denying that there may 
he room for the accommodation of the two “ conflicting in­
terests”  represented by official reputation and the freedom 
of political expression. But even under a standard that 
permits such accommodation, the rule by which this case 
was judged is inconsistent with the 'Constitution.

This conclusion follows because Alabama’s law of libel 
per se, as applied to the criticism of officials as officials, 
does not reconcile the conflicting interests; it subordinates 
the First Amendment freedom wholly to protecting the 
official. It reflects no compromise of the competing values 
which we assume, arguendo, a State may validly attempt 
to balance. The interest favored by the First Amend­
ment has been totally rejected, the opposing interest totally 
preferred. But here, as elsewhere in the area which is of 
concern to the First Amendment, the breadth of an abridg­
ment “ must he viewed in the light of less drastic means for 
achieving the same basic purpose.”  Shelton v. Tucker, 364 
U. S. 479, 488 (1960); Speiser v. Randall, 357 U. S. 513
(1958); cf. Dean Milk Co. v. City of Madison, 340 U. S. 349, 
354 (1951). I f there is room for the protection of official 
reputation against criticism of official conduct, measures of 
liability far less destructive of the freedom of expression 
are available and adequate to serve that end.

The Court of Appeals for the District of Columbia 
adopted such a standard as its version of the common law 
of libel in Sweeney v. Patterson, 128 F. 2d 457 (1942), dis­
missing a complaint based on a statement charging a Con­



53

gressman with. anti-Semitism in opposing an appointment. 
Judge Edgerton, joined by Judges Miller and Vinson, noted 
that “ the cases are in conflict”  but declared that “ in our 
view it is not actionable to publish erroneous and injurious 
statements of fact and injurious comment or opinion re­
garding the political conduct and views of public officials, 
so long as no charge of crime, corruption, gross immorality 
or gross incompetence is made and no special damage re­
sults. Such a publication is not ‘ libelous per se.’ ”  The 
position was placed upon the ground that “ discussion will 
be discouraged, and the public interest in public knowledge 
of important facts will be poorly defended, if error sub­
jects its author to a libel suit without even a showing of 
economic loss. Whatever is added to the field of libel is 
taken from the field of free debate.”  128 F. 2d at 458. These 
are, we argue, grounds which are of constitutional dimen­
sion.

The same position was taken by Judge Clark, dissenting 
in Sweeney v. Schenectady Union Pub. Co., 122 F. 2d 288 
(2d Cir. 1941), affirmed by an equal division of this Court. 
316 IT. S. 642 (1942). Deprecating the “ dangerous . . . 
rationale of the decision that a comment leading an appre­
ciable number of readers to hate or hold in contempt the 
public official commented on is libelous per se,”  he con­
cluded that ‘ ‘ the common-law requirement of proof of spe­
cial damages gives”  the commentator “ the protection he 
needs, while at the same time it does prevent him from 
causing really serious injury and loss by false and unfair 
statements.”  122 F. 2d at 291, 292.

Other courts have shown solicitude for the freedom to 
criticize the conduct of officials by requiring that the ag­



54

grieved official prove the critic’s malice, abrogating the pre­
sumptions and strict liability that otherwise obtain.* 
This approach draws a line between expression uttered 
with the purpose of harming the official by an accusation 
known to be unfounded, and expression which is merely 
wrong in fact, with denigrating implications. It thus makes 
an essential element of liability an intent similar to that 
which elsewhere has been deemed necessary to sustain a curb 
on utterance (see, e.g., Dennis v. United States, supra, at 
516; Smith v. California, 361 U. S. 147 [1959]; cf. Wieman 
v. Updegraff, 344 U. S. 183 [1952]) and relieves the defend­
ant of an evidential and persuasive burden of a kind that 
has been held to be excessive (Speiser v. Randall, 357 U. S. 
513 [1958]), assimilating the criteria of libel law in both 
respects to those demanded by the Constitution in related 
fields.

Whether either of these mitigated rules of liability for 
criticism of official conduct, or both in combination, would 
conform to First Amendment standards, need not be deter­

* Gough v. Tribune-Journal Company, 75 Ida. 502, 510 (1954); 
Salinger v. Cowles, 195 Iowa 873, 890-891 (1923) ; Coleman v. Mac- 
Lennan, 78 Kan. 711, 723 (1908) (frequently cited as a leading case) ; 
Bradford v. Clark, 90 Me. 298, 302 (1897) ; Lawrence v. Fox, 357 
Mich. 134, 142 (1959) ; Ponder v. Cobb, 257 N.C. 281, 293 (1962) ; 
Moore v. Davis, 16 S.W. 2d 380, 384 (Tex. Civ. App. 1929). Apply­
ing the same rule to candidates for public office, see Phoenix News­
papers v. Choisser, 82 Ariz. 271, 277 (1957) ; Friedell v. Blakeley 
Printing Co., 163 Minn. 226, 231 (1925) ; Boucher v. Clark Pub. Co., 
14 S.D. 72, 82 (1900). And cf. Charles Parker Co. v. Silver City 
Crystal Co., 142 Conn. 605, 614 (1955) (same privilege against private 
corporation allegedly libeled in political broadcast). Scholarly opinion, 
while describing as still a “ minority view” in libel law this reqirement 
that a plaintiff officer or candidate prove actual malice, has favored it 
with substantial unanimity. See, e.g., 1 Harper and James, The Law 
of Torts (1956), pp. 449-450; Noel, Defamation of Public Officers 
and Candidates, 49 Col. L. Rev. 875, 891-895 (1949) ; cf. Develop­
ments in the Law: Defamation, 69 Harv. L. Rev. 875, 928 (1956).



55

mined in this case. The Alabama rule embraces neither 
mitigation. Neither would allow a judgment for respond­
ent on the evidence on which he rests his claim.

Fourth: The Relevancy of the Official’s Privilege. The 
arguments we have made are fortified by recollection of 
the privilege the law of libel grants to an official if he 
denigrates a private individual. In Barr v. Matteo, 360 
U. S. 564, 575 (1959), this Court held the utterance of a 
federal official absolutely privileged if made “ within the 
outer perimeter”  of the official’s duties. The States accord 
the same immunity to statements of their highest officers, 
though some differentiate their lowlier officials and qualify 
the privilege they enjoy, taking the position urged by the 
minority in the Matteo case. But all hold that all officials 
are protected unless actual malice can he proved.*

The ground of the official privilege is said to be that the 
threat of damage suits would otherwise “ inhibit the fear­
less, vigorous, and effective administration of policies of 
government” , that, in the words of Judge Learned Hand 
(Gregoire v. Biddle, 177 F. 2d 579, 581 [2d Cir. 1949]), “  ‘ to 
submit all officials, the innocent as well as the guilty, to the 
burden of a trial and to the inevitable danger of its out­

* E.g., according absolute privilege, Catron v. Jasper, 303 Ky. 
598 (1946) (county sheriff) ; Schlinkert v. Henderson, 331 Mich. 284 
(1951) (member of liquor commission) ; Hughes v. Bizzell, 189 Okla. 
472, 474 (1941) (president of state university) ; Montgomery v. 
Philadelphia, 392 Pa. 178 (1958) (deputy commissioner and city 
architect). Limiting officers below state cabinet rank to a qualified 
privilege, see, e.g., Barry v. McCollom, 81 Conn. 293 (1908) (super­
intendent of schools) ; Mills v. Denny, 245 Iowa 584 (1954) (mayor) ; 
Howland v. Flood, 160 Mass. 509 (1894) (town investigating com­
mittee) ; Peterson v. Steenerson, 113 Minn. 87 (1910) (postmaster). 
See generally, 1 Harper and James, The Law of Torts (1956), 
pp. 429-30; Prosser on Torts (2d ed., 1955), pp. 612-13; Restate­
ment, Torts, § 591.



56

come, would dampen the ardor of all but the most resolute, 
or the most irresponsible, in the unflinching discharge of 
their duties.’ ”  Barr v. Matteo, supra, at 571. Mr. Justice 
Black, concurring, also related the official privilege to the 
sustenance of “ an informed public opinion,”  dependent 
on “ the freedom people have to applaud or to criticize the 
way public employees do their jobs, from the least to the 
most important.”  360 U. S. at 577.

It would invert the scale of values vital to a free society 
if citizens discharging the “ political duty”  of “ public dis­
cussion”  (Brandeis, J., concurring in Whitney v. California, 
274 U. S. 357, 375 [1927]) did not enjoy a fair equiva­
lent of the immunity granted to officials as a necessary inci­
dent of the performance of official duties. The threat of 
liability for actionable statement is assuredly no less of a 
deterrent to the private individual (cf. Farmers Union v. 
WDAY, 360 U. S. 525, 530 [1959]), who, unlike the official, 
must rely upon his own resources for defense. And, as 
Madison observed in words that are remembered, “ the 
censorial power is in the people over the Government, and 
not in the Government over the people.”  4 Annals of 
Congress 934. See also Report on the Virginia Resolutions 
(1799), 4 Elliot’s Dehates (1876), pp. 575-576. “ For the 
same reason that members of the Legislature, judges of the 
courts, and other persons engaged in certain fields of the 
public service or in the administration of justice are abso­
lutely immune from actions, civil or criminal, for libel for 
words published in the discharge of such public duties, the 
individual citizen must be given a like privilege when he is 
acting in his sovereign capacity.”  City of Chicago v. 
Tribune Co., 307 111. 595, 610 (1923). The citizen acts in his 
“ sovereign capacity”  when he assumes to censure the 
officialdom.



57

Fifth: The Protection of Editorial Advertisements. 
Though the point was not taken by the court below, respond­
ent argues that the fact that the statement was a paid adver­
tisement deprives it of protection “ as speech and press” . 
Brief in Opposition, p. 19. The argument is wholly without 
merit.

The decisions invoked by respondent have no bearing 
on this case. Breard v. Alexandria, 341 U. S. 622 (1951), 
dealt with a regulation of the place, manner and circum­
stances of solicitation of subscriptions, not with the 
repression of a publication on the basis of its content, the 
ideas that are expressed. Valentine v. Christensen, 316 
U. S. 52 (1942), involved a handbill soliciting the inspection 
of a submarine which its owner exhibited to visitors on 
payment of a stated fee. An ordinance requiring a permit 
for street distribution of commercial advertising was sus­
tained as applied to him. It is merely cynical to urge that 
these determinations bar protection of the statement 
involved here.

The statement published by petitioner was not a “ com­
mercial”  advertisement, as it is labeled by respondent. It 
was a recital of grievances and protest against claimed 
abuses dealing squarely with the major issue of our time. 
The fact that its authors sought to raise funds for defense 
of Dr. King and his embattled movement, far from forfeit­
ing its constitutional protection, adds a reason why it falls 
within the freedom guaranteed. Cf. N. A. A. C. P. v. Button, 
supra, 371 U. S. at 429-431, 439-440. That petitioner re­
ceived a payment for the publication is no less immaterial in 
this connection than is the fact that newspapers and books 
are sold. Smith v. California, 361 U. S. 147, 150 (1959); 
cf. Bantam Books Inc. v. Sullivan, 372 U. S. 58, 64, n. 6 
(1963).



58

It is, of course, entirely true that the published state­
ment did not represent or purport to represent assertions 
by petitioner, but rather by the sponsoring Committee and 
the individuals whose names appeared. But since the 
publisher is held no less responsible than are the sponsors, 
it must surely have the same protection they enjoy. Cf. 
Barrows v. Jackson, 346 U. S. 249 (1953). The willingness 
of newspapers to carry editorial advertisements is, more­
over, an important method of promoting some equality of 
practical enjoyment of the benefits the First Amendment 
was intended to secure. Cf. Lovell v. Griffin, 303 U. S. 
444 (1938); Schneider v. State, 308 U. S. 147 (1939); 
Talley v. California, 362 U. S. 60 (1960). The practice en­
courages “ the widest possible dissemination of informa­
tion from diverse and antagonistic sources” , which the 
First Amendment deems “ essential to the welfare of the 
public” . Associated Press v. United States, 326 U. S. 1, 20 
(1945). It has no lesser claim than any other mode of publi­
cation to the freedom that the Constitution guarantees.

II

Even if the rule of liability were valid on its face, 
the judgment rests on an invalid application.

Assuming, arguendo, that the freedom of the press may 
constitutionally be subordinated to protection of official 
reputation, as it would be by the rule of liability declared 
below, the rule is nonetheless invalid as applied, upon the 
record in this case. Nothing in the evidence supports a 
finding of the type of injury or threat to the respondent’s 
reputation that, on the assumption stated, justifies re­
pression of the publication. And even if there were a basis



59

for discerning such a threat, there was no ground for the 
enormous judgment rendered on the verdict.

First: The Scope of Review. These submissions fall 
within the settled scope of review by this Court when it is 
urged that a federal right has been denied ‘ ‘ in substance and 
effect”  by a state court. Norris v. Alabama, 294 U. S. 587, 
590 (1935). If the denial rests on findings of fact which are 
in law determinative of the existence of the federal right, 
those findings must be adequately sustained by the evidence. 
Norris v. Alabama, supra; Fishe v. Kansas, 274 U. S. 380 
(1927); Herndon v. Lowry, 301 U. S. 242, 259-261 (1937). 
If the denial rests on a conclusion or evaluation governing 
the application of controlling federal criteria, this Court 
will make its own appraisal of the record to determine if 
the facts established warrant the conclusion or evaluation 
made. Bridges v. California, 314 U. S. 252, 263, 271 (1941); 
Pennekamp v. Florida, 328 U. S. 331, 335, 345-346 (1946); 
Craig v. Harney., 331 U. S. 367, 373-374 (1947); Watts v. 
Indiana, 338 U. S. 49, 50 (1949) (plurality opinion); 
Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 708
(1959) (concurring opinion); Wood v. Georgia, 370 U. S. 
375, 386 (1962); Edwards v. South Carolina, 372 U. S. 229 
(1963).

The decision below that the publication libeled the 
respondent does not, therefore, foreclose the questions 
whether, on the facts established by the record, it contained 
a statement “ of and concerning”  the complainant and, if 
so, whether such statement injured or jeopardized his repu­
tation to an extent that, as a matter of the First Amend­
ment, justified its punitive repression by the judgment ren­
dered in the Circuit Court. Bridges v. California, supra. 
As in the contempt cases, this Court “ must weigh the im­
pact of the words against the protection given by the prin­



60

ciples of the First Amendment. . . Pennekamp v. 
Florida, supra, at 349.

Second: The Failure to Establish Injury or Threat to 
Respondent’s Reputation. An appraisal of this record in 
these terms leaves no room for a determination that the 
publication sued on by respondent made a statement as to 
him, or that, if such a statement may be found by implica­
tion, it injured or jeopardized his reputation in a way that 
forfeits constitutional protection.

The publication did not name respondent or the Com­
mission of which he is a member and it plainly was not 
meant as an attack on him or any other individual. Its 
protests and its targets were impersonal: “ the police” , 
the “ state authorities” , “ the Southern violators” . The 
finding that these collective generalities embodied an allu­
sion to respondent’s personal identity rests solely on the 
reference to “ the police”  and on his jurisdiction over that 
department. See pp. 7, 9, 10-14, 23-24, supra. But the 
police consisted of a force of 175 full-time officers, not to 
speak of a Chief responsible for the direction of their opera­
tions. See p. 10, supra. Courts have not hitherto permitted 
the mere designation of a group so large to be regarded as 
a reference to any member, least of all to one related to it 
only by an ultimate responsibility for its control or man­
agement.* While this result may well involve an element

* See, e.g., Service Parking Corp. v. Washington Times Co., 92 F. 
2d 502 (D. C. Cir. 1937) ; Noral v. Hearst Publications, Inc., 40 Cal. 
App. 2d 348 (1940) ; Fowler v. Curtis Publishing Co., 182 F. 2d 377 
(D . C. Cir. 1950) ; McBride v. Crowell-Coilier Pub. Co., 196 F. 2d 
187 (5th Cir. 1952) ; Neiman-Marcus v. Lait, 13 F.R.D. 311, 316 
(S. D. N. Y. 1952); cj. Julian v. American Business Consultants, 
Inc., 2 N. Y. 2d 1 (1956) ; Weston v. Commercial Advertiser Assn., 
184 N. Y. 479, 485 (1906). See also Restatement of Torts, § 564, 
Comment c ; Prosser on Torts (2d ed. 1955), pp. 583-584.



61

of judgment as to policy, regardful of “ the social interest 
in free press discussion of matters of general concern”  
(Service Parking Corp. v. Washington Times Co., 92 F. 2d 
at 505), it rests as well upon a common sense perception of 
the safety that numbers afford against a truly harmful 
denigration. The term “ police”  does not in fact mean all 
policemen. No more so does it mean the Mayor or Com­
missioner in charge.

This fatal weakness in the allegation that respondent 
was referred to by the publication was not cured by his 
own testimony or that of his six witnesses, four of whom 
first saw the publication in the office of his counsel. See 
p. 14, supra. We have detailed that testimony in the 
Statement (supra, pp. 11-14) and shall not repeat it 
in extenso here. It was at best opinion as to the interpre­
tation of the writing. No witness offered evidence of an 
extrinsic fact bearing upon the meaning of an enigmatic 
phrase or the identity of someone mentioned by description. 
Cf., e.g., Hope v. Hearst Consolidated Publications, Inc., 
294 F. 2d 681 (2d Cir. 1961). The weight of the testimony 
does not, therefore, transcend the ground of the opinions, 
which was no more than the bare ipse dixit that “ police”  
meant the respondent, since he is Commissioner in charge.

Respondent’s own conception of the meaning of the 
language went beyond this, to be sure. His view was that 
if one statement in a paragraph referred to the police, the 
other statements must he read to make the same allusion. 
Thus he considered that the declaration ‘ ‘ They have 
bombed his home”  meant that the bombing was the work 
of the police, because the paragraph contained the state­
ment that “ [t]hey have arrested him seven times” ; and 
arrests are made by the police. See pp. 9, 11, supra.



62

We think it is enough to say that these “ mere general 
asseverations”  (Norris v. Alabama, 294 U. S. 587, 595 
[1935]) were not evidence of what the publication said or 
what it reasonably could be held to mean. The problem, 
on this score, is not unlike that posed in Fiske v. Kansas, 
supra, where in determining the “ situation presented”  on 
the record, this Court read the crucial document itself to 
see if it possessed the attributes that had produced its 
condemnation (274 U. S. at 385). So read, this publication 
was a totally impersonal attack upon conditions, groups 
and institutions, not a personal assault of any kind.

Even if the statements that refer to “ the police”  could 
validly be taken to refer to the respondent, there was noth­
ing in those statements that suffices to support the judg­
ment. Assertions that were shown to have been accurate 
by the respondent’s evidence cannot be relied on to establish 
injury to his official or his private reputation; if the truth 
hurts that surely is a hurt the First Amendment calls on 
him to bear.* Hence, the whole claim of libel rests on two 
discrepancies between the material statements and the 
facts. Where the publication said that “ truckloads”  of 
armed police ‘ ‘ ringed the Alabama State College Campus ’ ’, 
the fact was that only “ large numbers”  of police “ were

* This is recognized in part by Alabama law itself, despite the 
strictness of the rule respecting truth as a defense, since evidence of 
truth must be received in mitigation under the general issue. Ala. 
Code of 1940, title 7, § 909; see Johnson Publishing Co. v. Davis, 
271 Ala. 474, 490 (1960). The problem has been met in England 
by enlarging the defense. See Defamation Act, 1952, 15 & 16 Geo. 
6 & 1 Eliz. 2, ch. 66, § 5: “ In an action for libel or slander in respect 
of words containing two or more distinct charges against the plaintiff, 
a defence of justification shall not fail by reason only that the truth of 
every charge is not proved if the words not proved to be true do not 
materially injure the plaintiff’s reputation having regard to the truth 
of the remaining charges.”  See also Report of the Committee on the 
Laiv of Defamation (1948) cmd. 7536, p. 21.



63

deployed near the campus”  upon three occasions, without 
ringing it on any. See p. 8, supra. And where the state­
ment said “ They have arrested him seven times” , the fact 
was that Dr. King had been arrested only four times. 
Three of the arrests had occurred, moreover, before the 
respondent came to office some six months before the suit 
was filed. See pp. 9, 10, supra. That the exaggerations or 
inaccuracies in these statements cannot rationally be re­
garded as tending to injure the respondent’s reputation is, 
we submit, entirely clear.

None of the other statements in the paragraphs relied 
on by respondent helps to make a colorable case. The 
advertisement was wrong in saying that when “ the entire 
student body protested to state authorities by refusing to 
re-register, their dining hall was padlocked in an attempt 
to starve them into submission.”  This was, indeed, the 
gravamen of the resentment that the publication seems to 
have inspired in Montgomery. See p. 9, supra. A  ma­
jority of students did engage in the protest against the 
expulsions, but only a few refused to re-register, the dining 
hall was never “ padlocked”  and, perforce, there was no 
“ attempt to starve”  the students “ into submission” . See 
p. 8, supra. But none of these admittedly erroneous 
assertions had a thing to do with the police and even less 
with the respondent. He testified himself that “ as far as 
the expulsion of students is concerned, that responsibility 
rests with the State Department of Education”  (R. 716). 
If that was so, as it clearly was, it must have been no less 
the responsibility of the “ State authorities” , who are 
alone referred to in the offending sentence, to have pad­
locked the dining hall, as it alleged. There certainly is no 
suggestion, express or implied, that the imaginary padlock 
was attached by the police.



64

The statement that “ the Southern violators have an­
swered Dr. King’s peaceful protests with intimidation and 
violence”  was thought by the respondent to refer to him­
self only because “ it is contained in a paragraph”  which 
also referred to arrests (E. 717-718), a point on which his 
testimony is, to say the least, quite inexplicit, totally ignor­
ing the fact that the paragraph did not even fix the time of 
the events recited or purport to place them in Montgomery. 
But whatever the respondent brought himself to think, or 
badgered Aaronson to say on cross-examination (see p. 17, 
supra), the statement cannot reasonably bear such a con­
struction. The term “ Southern violators of the Constitu­
tion”  was a generic phrase employed in the advertisement 
to characterize all those whose alleged conduct gave rise to 
the grievances recited, whether private persons or officials. 
There was no suggestion that the individuals or groups 
were all the same, any more than that they were the same 
in Orangeburg as in Atlanta or Montgomery.

For the same reason, there was no basis for asserting 
that the statement that “ they”  bombed his home, assaulted 
him and charged him with perjury pointed to respondent 
as the antecedent of the pronoun, though the trial court 
pointedly permitted him to prove his innocence upon these 
points. See p. 10, supra. There was, to be sure, dis­
puted evidence respecting a police assault but this related 
to an incident occurring long before respondent was elected 
a Commissioner (see pp. 9-10, supra). Beyond dispute, 
there were two bombings of King’s home and he was 
charged with perjury. Indeed, to raise funds to defend him 
on that charge, which proved to be unfounded, was the main 
objective of the publication. See p. 6, supra.

It is, in sum, impossible in our view to see in this 
melange of statements, notwithstanding the inaccuracies



65

noted, any falsehood that related to respondent and por­
tended injury to his official reputation. That he sustained 
no injury in fact was made entirely clear by his own evi­
dence. The most that his witnesses could say was that 
they would have thought less kindly of him if they had be­
lieved the statements they considered critical of his official 
conduct. They did not in fact believe them and respondent 
did not fall at all in their esteem. In Alabama, no less than 
in Virginia, “ the militant Negro civil rights movement has 
engendered the intense resentment and opposition of the 
politically dominant white community,”  as this Court said 
in N. A. A. C. P. v. Button, supra, 371 U. S. at 435. This 
publication was, upon its face, made on behalf of sym­
pathizers with that movement. That such a statement could 
have jeopardized respondent’s reputation anywhere he was 
known as an official must be regarded as a sheer illusion, not 
a finding that has any tangible support. In the real world, 
the words were utterly devoid of any “ impact”  that can 
weigh “ against the principles of the First Amendment.”  
P ennekamp v. Florida, supra, 328 U. S. at 349.

Respondent adduced as an aspect of his grievance that 
The Times made a retraction on demand of Governor Pat­
terson but failed to do so in response to his demand. See 
pp. 18-22, supra. It is enough to say that if the statement 
was protected by the Constitution, as we contend it was, 
no obligation to retract could be imposed. Beyond this, 
however, there was an entirely reasonable basis for the 
distinction made. Petitioner selected Governor Patterson 
as “ the proper representative”  of Alabama to be formally 
assured that The Times did not intend the publication to 
reflect upon the State. It also took account of the fact that 
the Governor was chairman ex-officio of the State Board of



66

Education; and that the “ state authorities”  had been re­
ferred to in the sentence claiming that the dining hall was 
padlocked. See pp. 21-22, supra. A  distinction based upon 
those grounds was not invidious as to respondent. Far 
from exacerbating any supposed injury to him, as the court 
below believed (R. 1178), the retraction was a mollifying 
factor, weakening, if not erasing, the statement as to any­
one who thought himself concerned.

Third: The Magnitude of the Verdict. Even if we are 
wrong in urging that there is no basis on this record for a 
judgment for respondent, consistently with the protection 
of the First Amendment, the judgment of $500,000 is so 
shockingly excessive that it violates the Constitution.

That judgment was rendered, as we have shown, with­
out any proof of injury or special damage. General dam­
ages simply were “ presumed”  and the jury was authorized 
to levy damages as punishment in its discretion. The trial 
court refused to charge that the jury should—or even could 
in its discretion— separately assess compensatory and puni­
tive damages (R. 847, 864, Nos. 59 and 60). Since there 
was no rational foundation for presuming any damages at 
all,* it is both legally correct and factually realistic to 
regard the entire verdict as a punitive award. Cf. Strom- 
berg v. California, 283 U. S. 359, 367-368 (1931).

Viewing the publication as an offense to the respond­
ent’s reputation, as we do for purposes of argument, there 
was no rational relationship between the gravity of the

* It is relevant in this connection to recall that the entire circula­
tion of The Times in Alabama was 394 copies, 35 in Montgomery 
County (R. 836). Even on the theory of the court below, the refer­
ence to “ police”  could hardly have been read to refer to respondent 
anywhere but in Montgomery, or at most in Alabama.



67

offense and the size of the penalty imposed. Cf. Crowell- 
Collier Pub. Co. v. Caldwell, 170 F. 2d 941, 944, 945 (5th 
Cir. 1948). The court below declined, indeed, to weigh the 
elements of truth embodied in the publication in appraising 
the legitimacy of the verdict, contrary to its action in a 
recent case involving charges that a private individual was 
guilty of grave crimes. Johnson Publishing Co. v. Davis, 
271 Ala. 474, 490 (1960). It chose instead to treat peti­
tioner’s assertion of belief in the substantial truth of the 
advertisement, so far as it might possibly have been related 
to respondent, as evidence of malice and support for the 
size of the award. See pp. 22, 24, supra.

The judgment is repugnant to the Constitution on these 
grounds. As Mr. Justice Brandeis said, concurring in 
Whitney v. California, 274 U. S. 357, 377 (1927), a “ police 
measure may be unconstitutional merely because the 
remedy, although effective as means of protection, is unduly 
harsh or oppressive.”  The proposition must apply with 
special force when the “ harsh”  remedy has been explicitly 
designed as a deterrent of expression. It is, indeed, the 
underlying basis of the principle that “ the power to regu­
late must be so exercised as not, in attaining a per­
missible end, unduly to infringe the protected freedom.”  
Cantwell v. Connecticut, 310 U. S. 296, 304, 308 (1940). That 
principle has been applied by this Court steadily in recent 
years as measures burdening the freedoms of expression 
have been tested by “ close analysis and critical judgment in 
the light of the particular circumstances ’ ’ involved. Speiser 
v. Randall, 357 U. S. 513, 520 (1958). See also, e.g., Gros- 
jean v. American Press Co., 297 U. S. 233 (1936); 
N. A. A. C. P. v. Alabama, 357 U . S. 449 (1958); Smith 
v. California, 361 U .  S. 147, 150-151 (1959); Bates v.



68

Little Rock, 361 U. S. 516 (1960); Shelton v. Tucker, 364 
U. S. 479 (1960); cf. Winters v. New York, 333 U. S. 507, 517 
(1948).

Even when the crucial freedoms of the First Amend­
ment have not been at stake, this Court has made clear that 
a penalty or money judgment may deprive of property 
without due process where it is “  so extravagant in amount 
as to outrun the bounds of reason and result in sheer 
oppression.”  Life <f Casualty Co. v. McCray, 291 U. S. 
566, 571 (1934). A  statutory penalty recoverable by a 
shipper has not been permitted to “ work an arbitrary, un­
equal and oppressive result for the carrier which shocks the 
sense of fairness the Fourteenth Amendment was intended 
to satisfy . . . .”  Chicago <& N. W. Ry. v. Nye Schneider 
Fowler Co., 260 U. S. 35, 44-45 (1922). See also Missouri 
Pacific Ry. Co. v. Tucker, 230 U. S. 340, 350-351 (1913); 
St. Louis, I. Mt. & So. Ry. Co. v. Williams, 251 U. S. 63, 
66-67 (1919). The idea of government under law is hardly 
older than the revulsion against “ punishment out of all 
proportion to the offense. . . . ”  Douglas, J., concurring in 
Robinson v. California, 370 U. S. 660, 676 (1962). Such 
punishment was inflicted here, compounding the affront this 
judgment offers to the First Amendment.

It is no hyperbole to say that if a judgment of this size 
can be sustained upon such facts as these, its repressive 
influence will extend far beyond deterring such inaccuracies 
of assertion as have been established here. This is not a 
time—there never is a time—when it would serve the values 
enshrined in the Constitution to force the press to curtail 
its attention to the tensest issues that confront the country 
or to forego the dissemination of its publications in the 
areas where tension is extreme.



69

Respondent argued in his Brief in Opposition (pp. 25-26) 
that the Seventh Amendment bars this Court from con­
sidering the size of an award based on the verdict of a jury. 
The very authorities he cites make clear that any insula­
tion of a verdict from review does not extend to situations 
where it involves or reflects error of law. See, e.g., Fair- 
mount Glass Works v. Cub Fork Coal Co., 287 U. S. 474, 
483-485 (1933); Chicago, B. <& Q. Railroad v. Chicago, 166 
U. S. 226, 246 (1897). See also Dimick v. Schiedt, 293 U. S. 
474, 486 (1935); A. d G. Stevedores v. Ellerman Lines, 369 
U. S. 355, 364, 366 (1962). Abridgment of the freedom of 
the press is surely such an error; and in determining if an 
abridgment has occurred, it makes no difference what 
branch or agency of the State has imposed the repression. 
N. A. A. C. P. v. Alabama, 357 U. S. 449, 463 (1958); Bantam 
Books, Inc. v. Sullivan, 372 U. S. 58, 68 (1963). Indeed, the 
current of authority today regards the Seventh Amendment 
as inapplicable generally to appellate review of an exces­
sive verdict, viewing the denial of relief below as an error of 
law. See, e. g., Southern Pac. Co. v. Guthrie, 186 F. 2d 
926, 931 (9th Cir. 1951); Dagnello v. Long Island Rail Road 
Company, 289 F. 2d 797, 802 (2d Cir. 1961); cf. Affolder v. 
New York, Chicago <£ St. L. R. Co., 339 U. S. 96,101 (1950); 
6 Moore’s, Federal Practice (2d ed. 1953), pp. 3827-3841. 
That general problem is not presented here because this 
excess contravenes the First Amendment.

Ill
The assumption of jurisdiction in this action by the 

Courts of Alabama contravenes the Constitution.
In sustaining the jurisdiction of the Circuit Court, the 

courts below held that petitioner made an involuntary gen­
eral appearance in this action, subjecting its person to the



70

jurisdiction and forfeiting the constitutional objections 
urged. They also rejected those objections on the merits, 
holding that petitioner’s contacts with Alabama were suf­
ficient to support State jurisdiction in this cause, based 
either on the service of process on McKee as a purported 
agent or on the substituted service on the Secretary of 
State. The decision is untenable on any ground.

First: The Finding of a General Appearance. The 
motion to quash stated explicitly that petitioner appeared 
“ solely and specially for the purpose of filing this its 
motion to quash attempted service of process in this cause 
and for no other purpose and without waiving service of 
process upon it and without making a general appearance 
and expressly limiting its special appearance to the purpose 
of quashing the attempted service upon it in this case . . . ”  
(R. 39, 47). The grounds of the motion related to no other 
issue than that of petitioner’s amenability to Alabama 
jurisdiction in this action as a New York corporation, 
neither qualified to do nor doing business in the State 
(R. 40-45, 47). The prayer for relief (R. 45-46) was not, 
however, limited to asking that the service or purported 
service of process be quashed and that the action be dis­
missed “ for lack of jurisdiction of the person”  of peti­
tioner. It concluded with a further request for dismissal 
for “ lack of jurisdiction of the subject matter of said 
action”  (R. 46). That prayer, the courts held, converted 
the special appearance into a general appearance by opera­
tion of the law of Alabama (R. 49-51,1151-1153).

This ruling lacks that “ fair or substantial support”  in 
prior state decisions that alone suffices to preclude this 
Court’s review of federal contentions held to be defeated 
by a rule of state procedure. N. A. A. C. P. v. Alabama, 357



71

U. S. 449, 455-457 (1958). The governing principle of Ala­
bama practice was declared by the court below in Ex parte 
Cullinan, 224 Ala. 263 (1931), holding that a request for 
“ further time to answer or demur or file other motions” , 
made by a party appearing specially, did not constitute a 
general appearance waiving constitutional objections later 
made by motion to quash. Noting that a non-resident’s ob­
jection to the jurisdiction “ is not a technical one . . . but is 
an assertion of a fundamental constitutional right” , the 
court said the question involved was one “ of consent or a 
voluntary submission to the jurisdiction of the court” , an 
issue of “ intent as evidenced by conduct” , as to which “ the 
intent and purpose of the context as a whole must control.”  
224 Ala. at 265, 266, 267. See also Ex parte Haisten, 227 
Ala. 183, 187 (1933); cf. Sessoms Grocery Co. v. Interna­
tional Sugar Feed Company, 188 Ala. 232, 236 (1914); 
Terminal Oil Mill Co. v. Planters W. <& G. Co., 197 Ala. 429, 
431 (1916). For a waiver to be inferred or implied, when 
the defendant appears specially to move to set aside service 
of process, he must have taken some “ action in relation to 
the case, disconnected with the motion, and which recog­
nized the case as in court.”  Lampley v. Beavers, 25 Ala. 
534, 535 (1854).

Petitioner’s prayer for relief neither “ recognized the 
case as in court”  nor evidenced “ consent or voluntary sub­
mission”  to the jurisdiction. On the contrary, the papers 
made entirely clear that the sole ruling sought by the pe­
titioner was that it was not amenable to Alabama’s juris­
diction, as a New York corporation having no sufficient 
contact with the State to permit the assertion of jurisdic­
tion in personam in an action based upon a publication in 
New York.



72

The doctrine of Ex parte Cullinan has not been qualified 
by any other holding of the court below before the instant 
case. It is, on the other hand, confirmed by cases in 
which a defendant appearing specially has joined a motion 
to quash for inadequate service with a plea in abatement 
challenging the venue of the action—without the suggestion 
that the plea amounted to a general appearance, though 
the question that it raised was characterized by the court 
below as one of “ jurisdiction of the subject matter.”  St. 
Mary’s Oil Engine Co. v. Jackson Ice and Fuel Co., 224 Ala. 
152, 155, 157 (1931). See also Seaboard Air Line Ry. v. 
Hubbard, 142 Ala. 546, 548 (1904); Dozier Lumber Co. v. 
Smith-Isburg Lumber Co'., 145 Ala. 317 (1905); cf. Johnson 
Publishing Co. v. Davis, 271 Ala. 474, 490 (1960); Ex parte 
Textile Workers Union of America, 249 Ala. 136,142 (1947). 
Indeed, the precise equivalent of the prayer of the motion 
in this case was used in Harrub v. Hy-Trous Corporation, 
249 Ala. 414, 416 (1947), without arousing an objection to 
adjudication of the issue as to jurisdiction of the person, 
raised on the special appearance. Beyond this, the late 
Judge Walter B. Jones, who presided in this case at Circuit, 
reproduced these very motion papers in the 1962 supple­
ment to his treatise on Alabama practice, as a form of 
“ Motion to Quash Service of Process by Foreign Corpo­
ration” , without intimation that the prayer addressed to 
lack of jurisdiction of the subject matter waived the point 
respecting jurisdiction of the person. 3 Jones, Alabama 
Practice and Forms (1947) § 11207.1a (Supp. 1962).

There is, moreover, a persuasive reason why a foreign 
corporation challenging its amenability to suit in Alabama 
by substituted service on the Secretary o f State should con­



73

ceive of its objection as relating in a sense to jurisdiction 
of the subject matter of the action. The statute (Ala. Code 
of 1940, title 7, <§> 199 [1]) itself speaks in terms of the 
sufficiency of service on the Secretary “ to give to any of 
the courts of this state jurisdiction over the cause of action 
and over such non-resident defendant”  (Appendix A, infra, 
p. 94). Hence a contention that the statute is inapplicable 
or invalid as applied goes, in this sense, to jurisdiction of 
the cause as well as jurisdiction of the person.* Cf. St. 
Mary’s Oil Engine Co. v. Jackson Ice & Fuel Co., supra, 
at 155; Boyd v. Warren Paint <& Color Co., 254 Ala. 687, 691 
(1950)'. The one conclusion is implicit in the other, not the 
product of a separate inquiry involving separate grounds.

Against all these indicia of Alabama law, ignored in the 
decisions of the courts below, the authorities relied on are 
quite simply totally irrelevant. None involved the alleged 
waiver of a constitutional objection. Except for Blanken­
ship v. Blankenship, 263 Ala. 297, 303 (1955), where the 
court specifically declined to consider whether the appear­
ance had been general or special, deeming the issue im­
material upon the question posed, none involved a special * * * §

* It should be noted also that prior to the enactment of Ala. Code, 
title 7, § 97 in 1907, Alabama denied her courts jurisdiction over 
actions against foreign corporations which did not arise within the
State. See McKnett v. St. Louis & San Francisco Ry., 292 U. S. 230, 
231 (1934). The bar to foreign causes was raised, however, only to 
suits “ in which jurisdiction of the defendant can be legally obtained
in the same manner in which jurisdiction could have been obtained 
if the cause of action had arisen in this state.” The claim that McKee 
was not an “agent” for purposes of service under Ala. Code, title 7,
§ 188 (Appendix A, infra, p. 92), if valid, thus implied a defect of 
subject matter jurisdiction of this cause of action, which petitioner 
submitted arose at the place of publication in New York. Compare 
the statement by the court below upon this point (R . 1179) with New  
York Times Company v. Conner, 291 F. 2d 492, 494 (5th Cir. 1961).



74

appearance. In Thompson v. Wilson, 224 Ala. 299 (1932), 
the defendant, a resident of Alabama, had not even pur­
ported to appear specially or attempted to question the 
court’s jurisdiction of his person; his sole objection, taken 
by demurrer, was to the court’s competence to deal with 
the subject matter of the action and to grant relief of the 
type asked. In Vaughan v. Vaughan, 267 Ala. 117, 120, 121 
(1957), referred to by the Circuit Court, the movant failed 
to limit her appearance, leading the court to distinguish 
Ex parte Haisten, supra, on this ground. The additional 
decisions cited by respondent (Brief in Opposition, p. 36) 
are no less irrelevant. Neither Kyser v. American Surety 
Co., 213 Ala. 614 (1925) nor Aetna Insurance Co. v. Earnest, 
215 Ala. 557 (1927) involved a special appearance or dealt 
with a challenge to service of process on constitutional 
grounds.

The California and North Carolina cases cited and 
quoted below (Olcese v. Justice’s Court, 156 Cal. 82 [1909]; 
Roberts v. Superior Court, 30 Cal. App. 714 [1916]; Dailey 
Motor Co. v. Reaves, 184 N.C. 260 [1922]) and the similar 
decisions referred to in the annotation cited (25 A.L.R. 2d 
838-842), to the extent that they treated a challenge to 
the jurisdiction of the subject matter as a general appear­
ance, all involved situations where the defendant’s objec­
tion was deemed to ask for relief inconsistent with the ab­
sence of jurisdiction of the person or to raise a separate 
“ question whether, considering the nature of the cause of 
action asserted and the relief prayed by plaintiff, the court 
had power to adjudicate concerning the subject matter of 
the class of cases to which plaintiff’s claim belonged.”  
Davis v. O’Hara, 266 U. S. 314, 318 (1924); cf. Constantine 
v. Constantine, 261 Ala. 40, 42 (1954). That no such ques­



75

tion was presented here the motion papers make entirely 
clear.

The situation is, indeed, precisely analogous to that pre­
sented in the Davis case. There the defendant, Director 
General of Railroads, appeared specially for the purpose 
of objecting to the jurisdiction of the district court “ over 
the person of the defendant and over the subject matter 
of this action, ’ ’ on the ground that in the circumstances the 
Director was immune to suit in the county where action was 
brought. The Nebraska courts treated the reference to 
subject matter as a general appearance, waiving the im­
munity asserted. O’Hara v. Davis, 109 Neb. 615 (1923). 
This Court reversed, holding that there “ was nothing in 
the moving papers to suggest that the Nebraska court had 
no jurisdiction to try and determine actions, founded on 
negligence, to recover damages for personal injuries suf­
fered by railway employees while engaged in the perform­
ance of their work”  (266 U. S. at 318). So here, there was 
nothing in the papers to suggest that the petitioner ques­
tioned the competence of the Circuit Court to “ exercise 
original jurisdiction . . .  of all actions for libel. . . . ”  (Ala. 
Code, title 13, § 126). The point was only that petitioner, 
because it is a foreign corporation having only a peripheral 
relationship to Alabama, was immune to jurisdiction in the 
action brought.

For the foregoing reasons, we submit that the decision 
that petitioner made an involuntary general appearance 
does not constitute an adequate state ground, barring con­
sideration of the question whether Alabama has tran­
scended the due process limitations on the territorial ex­
tension of the process of her courts. Cf. Wright v. Georgia, 
373 U. S. 284 (1963); N.A.A.C.P. v. Alabama, supra; Staub 
v. City of Baxley, 355 U. S. 313 (1958); Davis v. Wechsler,



76

263 U. S. 22 (1923); Ward v. Love County, 253 U. S. 17 
(1920).*

Moreover, even if petitioner could validly be taken to 
have made an involuntary general appearance by the prayer 
for dismissal on the ground of lack of jurisdiction of the 
subject matter, that appearance would not bar the claim 
that in assuming jurisdiction of this action the state court 
has cast a burden upon interstate commerce forbidden by 
the Commerce Clause. That point is independent of the 
defendant’s amenability to process, as this Court has 
explicitly decided in ruling that the issue remains open, 
if presented on “ a seasonable motion” , notwithstanding 
the presence o f the corporation in the State or its ap­
pearance generally in the cause. Davis v. Farmers Co­
operative Co., 262 U. S. 312 (1923); Michigan Central R. R. 
Co. v. Mix, 278 U. S. 492, 496 (1929). See also Denver & 
R. G. W. R. Co. v. Terte, 284 U. S. 284, 287 (1932) (attach­
ment) ; Canadian Pacific Ry. Co. v. Sullivan, 126 F. 2d 433, 
437 (1st Cir.), cert, denied, 316 U. S. 696 (1942) (agent 
designated to accept service); Zuher v. Pennsylvania R. 
Co., 82 F. Supp. 670, 674 (N. D. Ga. 1949); Pantswowe

* It should be noted that the Circuit Court also found a waiver of 
petitioner’s special appearance in its application for mandamus to 
review an order directing the production of documents demanded by 
respondent to show the extent of petitioner’s activities in Alabama. 
R. 50-51; see also R. 29-39, PI. Ex. 311-313, R. 1835-1858. The 
Supreme Court’s opinion is silent on this point, presumably in 
recognition of the proposition that an action must be “ disconnected” 
with the motion to support an inference of waiver. Lampley v. 
Beavers, supra; cf. Ford Motor Co. v. Hall Auto Co., 226 Ala. 385, 
388 (1933). It would obviously thwart essential self-protective 
measures if an effort to obtain review of an allegedly abusive ancillary 
order were regarded as a waiver of the prime submission. Cf. E x  
parte Spence, 271 Ala. 151 (1960) ; E x parte Textile Workers of 
America, 249 Ala. 136 (1947) ; E x parte Union Planters National 
Bank and Trust Co., 249 Ala. 461 (1947). See Fay v. Noia, 372 
U. S. 391, 432, n. 41 (1963).



77

Zaklady Graviozne v. Automobile Ins. Co., 36 F. 2d 504 
(S. D. N. Y. 1928) (commerce objection relates to jurisdic­
tion of subject matter); 42 Harv. L. Rev. 1062, 1067 (1929); 
43 id. 1156,1157 (1930). For the same reason, we submit, an 
implied general appearance would not bar the litigation 
of petitioner’s contention, seasonably urged upon the mo­
tion, that by taking jurisdiction in this action, the courts 
below denied due process by abridging freedom of the 
press; that also is an issue independent of the presence of 
petitioner in Alabama or its amenability to process of the 
court.

Second: The Territorial Limits of Due Process. The 
courts below held that the sporadic newsgathering activities 
of correspondents and stringers of The Times in Alabama, 
the occasional solicitation and publication of advertising 
from Alabama sources and the minuscule shipment of the 
newspaper to subscribers and newsdealers in the State 
(supra, pp. 25-27) constitute sufficient Alabama contacts to 
permit the exercise of jurisdiction in this action, without 
transcending the territorial limits of due process.

This assertion of state power finds no sanction in this 
Court’s decisions governing the reach of state authority, 
despite the relaxation in the limits of due process that we 
recognize to have occurred in recent years. Neither the 
“ flexible standard”  of International Shoe Co. v. Washing­
ton, 326 U. S. 310 (1945), as it was called in Hanson v. 
Denckla, 357 U. S. 235, 251 (1958), nor any of its later ap­
plications, sustains, in our submission, the extreme determi­
nation here.

It is plain, initially, that the petitioner’s peripheral re­
lationship to Alabama does not involve “ continuous corpo­



78

rate operations”  which are “ so substantial and of such a 
nature as to justify suit against it on causes of action 
arising from dealings entirely distinct from those activi­
ties.”  International Shoe Co. v. Washington, supra, at 318. 
The case bears no resemblance to Perkins v. Benguet 
Mining Co., 342 U. S. 437 (1952), where the central base 
of operations of the corporation, including its top manage­
ment, was in the State where suit was brought. It hardly 
can he argued that The New York Times has such a base in 
Alabama, where, according to this record, it enjoys 6/100ths 
of one per cent of its daily circulation and 2/10ths of one 
per cent of its Sunday circulation and where the sources of 
46/1000ths of one per cent of its advertising revenue are 
found (R. 402, 444-445). The occasional visits of corre­
spondents to the State to report on events of great interest 
to the nation places The Times in Alabama no more than 
in Ankara or Athens or New Delhi, where, of course, similar 
visits occur.

Hence, if the jurisdiction here asserted is sustained, it 
must be on the ground that the alleged cause of action is so 
“ connected with”  petitioner’s “ activities within the state”  
as to “ make it reasonable, in the context of our federal 
system of government, to require the corporation to defend 
the particular suit which is brought there.”  International 
Shoe Co. v. Washington, supra, at 319, 317. See also 
Bloiont v. Peerless Chemicals (P. R .) Inc., 316 F. 2d 695, 700 
(2d Cir. 1963); L. D. Reeder Contractors of Ariz. v. Higgins 
Industries, Inc., 265 F. 2d 768, 774-775 (9th Cir. 1959); 
Partin v. Michaels Art Bronze Co., 202 F. 2d 541, 545 (3d 
Cir. 1953) (concurring opinion).

There is, in our view, no such connection. Here, as in
Hanson v. Denckla, supra, at 252, the “ suit cannot be said



79

to be one to enforce an obligation that arose from a privilege 
the defendant exercised in”  the State. The liability alleged 
by the respondent certainly is not based on any activity 
of correspondents or stringers of The Times in covering 
the news in Alabama; and neither entering the State for 
such reporting, nor the composition nor the filing of reports 
rests on a privilege the State confers, given the rights 
safeguarded by the Constitution. Nor is this claim of 
liability connected with the occasional solicitation of adver­
tisements in Alabama. The advertisement in suit was not 
solicited and did not reach The Times from anyone within 
the State. There remains, therefore, only the negligible 
circulation of The Times in Alabama on which to mount 
an argument that this suit relates to the exercise by the 
petitioner of “ the privilege of conducting activities within”  
the State. International Shoe Co. v. Washington, supra, at 
319.

We contend that this circulation did not involve the 
exercise of such a privilege. Copies of the paper were 
mailed to subscribers from New York or shipped from there 
to dealers who were purchasers, not agents of The Times. 
Such mailing and shipment in New York were not activity 
of the petitioner within the State of Alabama. See, e.g., 
Putnam v. Triangle Publications, Inc., 245 N. C. 432, 443 
(1957); Schmidt v. Esquire, Inc., 210 F. 2d 908, 915, 
916 (7th Cir. 1954), cert, denied, 348 U. S. 819 (1954); 
Street <& Smith Publications, Inc. v. Spikes, 120 F. 2d 
895, 897 (5th Cir.), cert, denied, 314 U. S. 653 (1941); 
Cannon v. Time, Inc., 115 F. 2d 423, 425 (4th Cir. 1940); 
Whitaker v. Macfadden Publications, Inc., 105 F. 2d 44, 
45 (D. C. Cir. 1939); Buckley v. New York Times Co., 
215 F. Supp. 893 (E. D. La. 1963); Gayle v. Magazine Man­



80

agement Co., 153 F. Supp. 861, 864 (M. D. Ala. 1957); 
Brewster v. Boston Herald-Traveler Corp., 141 F. S'upp. 
760, 761, 763 (D. Me. 1956); cf. Erlanger Mills v. Cohoes 
Fibre Mills, Inc., 239 F. 2d 502 (4th Cir. 1956); L. D. Reeder 
Contractors of Ariz. v. Higgins Industries, Inc., 265 F. 2d 
768 (9th Cir. 1959); Trippe Manufacturing Co. v. Spencer 
Gifts, Inc., 270 F. 2d. 821, 823 (7th Cir. 1959). Whether 
Alabama may, upon these facts, declare the petitioner 
responsible for an Alabama “ publication”  by causing or 
contributing to the dissemination of those papers in the 
State is not, of course, the issue. That is a problem of 
the choice of law* which is entirely distinct from the 
question here presented: whether by its shipment in and 
from New York petitioner “ avails itself of the privilege of 
conducting activities within the forum State, thus invoking 
the benefits and protections of its laws.”  Hanson v. 
Denckla, supra, at 253. A State may be empowered to 
apply its law to a transaction upon grounds quite insufficient 
to establish “ personal jurisdiction over a non-resident de­
fendant” , as Hanson (ibid.) makes clear. I f this were not 
the case, each of the individual non-resident signers of the 
advertisement might also be amenable to Alabama’s long-

* Courts have been no less perplexed than commentators by the 
conflicts problems incident to multi-state dissemination of an alleged 
libel; and some have sought to solve them by a “ single publication” 
rule, fixing the time and place of the entire publication when and where 
the first and primary dissemination occurred. See, e.g., Hartmann 
v. Time, Inc., 166 F. 2d 127 (3d Cir. 1947), cert, denied, 334 U. S. 
838 (1948) ; Instill v. New York, World-Telegram Corp., 273 F. 2d 
166, 171 (7th Cir. 1959), cert, denied, 362 U. S. 942 (1960) ; 
cf. Mattox v. News Syndicate Co., 176 F. 2d 897, 900, 904-905 (2d 
Cir.), cert, denied, 338 U. S. 858 (1949). See also, e.g., Prosser, 
Interstate. Publication, 51 Mich. L. Rev. 959 (1953) ; Leflar, The 
Single Publication Rule, 25 Rocky Mt. L. Rev. 263 (1953); Note, 
29 U. of Chi. L. Rev. 569 (1962).



81

arm process, not to speak of every author of a publication 
sold within the State. See Calagaz v. Calhoon, 309 F. 2d 
248, 254 (5th Cir. 1962). That would, indeed, entail the “ de­
mise of all restrictions on the personal jurisdiction of state 
courts” , an eventuality that this Court has declared the 
trend of its decisions does not herald. Hanson v. Denckla, 
supra, at 251. The avoidance of that outcome calls, at least, 
for a sharp line between a liability based on an act performed 
within the State and liability based on an act without, which 
merely is averred to have an impact felt within.* Surely 
the papers mailed to subscribers were delivered to them 
by petitioner when they were posted in New York. Cf. 
1 Williston on Contracts (3d ed. 1957) § 81, p. 268. So, 
too, the delivery to carriers in New York for shipment to 
Alabama dealers, pursuant to their orders, can at most be 
said to have contributed to sales made by the dealers, but

* Cf. L. Hand, J., in Kilpatrick v. Texas & P. Ry. Co., 166 F. 2d 
788, 791-792 (2d Cir. 1948) : “ It is settled that, given the proper pro­
cedural support for doing so, a state may give judgment in personam 
against a non-resident, who has only passed through its territory, if 
the judgment be upon a liability incurred while he was within its 
borders. That, we conceive, rests upon another principle. The 
presence of the obligor within the state subjects him to its law while 
he is there, and allows it to impose upon him any obligation which its 
law entails upon his conduct. Had it been possible at the moment 
when the putative liability arose to set up a piepowder court pro hac 
vice, the state would have had power to adjudicate the liability then 
and there; and his departure should not deprive it of the jurisdiction 
in personam so acquired. On the other hand, in order to subject a 
non-resident who passes through a state to a judgment in personam for 
liabilities arising elsewhere, it would be necessary to say that the state 
had power so to subject him as a condition of allowing him to enter 
at all, and that for this reason his voluntary entry charged him generally 
with submission to the courts. As a matter of its own law of con­
flicts of law, no court of one country would tolerate such an attempt 
to extend the power of another; and, as between citizens of states of 
the United States, constitutional doubts would arise which, to say 
the least, would be very grave . . . .”



82

those sales were not the acts of the petitioner in Alabama. 
Cf. United States v. Smith, 173 Fed. 227, 232 (D. Ind. 1909). 
That is a matter to be judged in terms of a “ practical con­
ception”  of the needs of our federalism, not “ the ‘witty 
diversities’ . . .  of the law of sales.”  Holmes, J., in Rearick 
v. Pennsylvania, 203 U. S. 507, 512 (1906).

Assuming, however, that the shipment of The Times to 
Alabama may be deemed an act of the petitioner within 
that State, we still do not believe the jurisdiction here 
affirmed can be sustained. In International Shoe this Court 
made clear that the new standard there laid down was not 
“ simply mechanical or quantitative”  and that its applica­
tion “ must depend rather upon the quality and nature of 
the activity in relation to the fair and orderly administra­
tion of the laws which it was the purpose of the due process 
clause to insure”  (326 U. S. at 319). See also Hanson v. 
Denckla, supra, at 253. The opinion left no doubt that, as 
Judge Learned Hand had previously pointed out (Hutchin­
son v. Chase & Gilbert, 45 F. 2d 139, 141 [2d Cir. 1930]), an 
“  ‘ estimate of the inconveniences’ which would result to 
the corporation from a trial away from its ‘home’ or prin­
cipal place of business is relevant in this connection”  (326 
U. S. at 317). Measured by this standard, a principle which 
would require, in effect, that almost every newspaper 
defend a libel suit in almost any jurisdiction of the country, 
however trivial its circulation there may be, would not 
further the “ fair and orderly administration of the laws.”  
The special “ inconvenience”  of the foreign publisher in 
libel actions brought in a community with which its ties are 
tenuous need not be elaborated. It was perspicuously noted 
by the court below in a landmark decision more than forty 
years ago, confining venue to the county where the news­



83

paper is “ primarily published” . Age-Herald Publishing 
Co. v. Huddleston, 207 Ala. 40, 45 (1921). This record 
surely makes the “ inconvenience”  clear.

We do not blink the fact that this submission focuses 
upon the hardship to the foreign publisher and that the 
plaintiff faces hardship too in litigating far from home. 
But if these conflicting interests call for balance in relation 
to the “ orderly administration of the laws” , there are sub­
stantial reasons why the interest of the publisher ought 
here to be preferred. In the first place, it is the forum which 
is seeking to extend its power beyond its own borders, carry­
ing the burden of persuasion that the “ territorial limita­
tions on the power of the respective states”  (Hanson v. 
DencUa, supra, at 251) are respected in the extension made. 
Secondly, the burden cast upon the publisher can only 
operate to thwart the object of the First Amendment by 
demanding the cessation of a circulation that entails at best 
no economic benefit—depriving the state residents who have 
an interest in the foreign publication of the opportunity to 
read. Thirdly, the plaintiff’s grievance rests but fancifully 
on the insubstantial distribution of the publication in the 
forum, as distinguished from its major circulation out of 
state. If that grievance is to be assigned a locus, it is 
hardly where 394 copies were disseminated when the full 
650,000 were regarded as relevant to the ad damnum (B. 
2, 3, 601, 945) and a reason for sustaining the award (R. 
1176, 1179). The difficulties presented by libel actions 
based on multi-state dissemination are notorious enough 
(see, e.g., Zuck v. Interstate Publishing Corp., 317 F. 2d 
727, 733 [2d Cir. 1963]), without permitting suit against a 
foreign publisher in every jurisdiction where a copy of the 
allegedly offending publication has been sold. Finally, but



84

not the least important, this is not an action merely seeking- 
redress for an injury allegedly inflicted on the plaintiff. Its 
dominant object is to punish the defendant, as the damages 
demanded made quite clear. Hence, the considerations that 
would be decisive against “ long-arm”  jurisdiction in a 
criminal proceeding ought to be persuasive here.

The courts below thought the foregoing arguments 
against the jurisdiction answered by the decision of this 
Court in McGee v. International Life Ins. Co., 355 U. S. 220 
(1957), where suit on an insurance contract was sustained 
in California against a non-resident insurer, based on the 
solicitation and the consummation of the contract in the 
State by mail. But that decision certainly does not control 
the disposition of this case. The contract executed in 
McGee constituted a continuing legal relationship between 
the insurer and the insured within the State, a relation 
which the States, with the concurrence of Congress (15 
U. S. C. §§ 1011-1015, 59 Stat. 33), have long deemed to re­
quire special state regulation. Hanson v. Denchla, supra, 
at 252; Travelers Health Assn. v. Virginia, 339 U. S. 643 
(1950). The liability asserted here derives from no such 
continuing relationship with someone in the State; and 
newspaper publication, including circulation (Lovell v. 
Griffin, 303 U. S. 444 [1938]; Talley v. California, 362 U. S. 
60 [I960]), far from being exceptionally subject to state 
regulation, is zealously protected by the First Amendment.

Respondent also relies heavily on Scripto v. Carson, 362 
U. S. 207 (1960) (Brief in Opposition, pp. 39, 41) but the 
reliance plainly is misplaced. That decision dealt with the 
minimum connection necessary to permit a State to impose 
on an out-of-state vendor the compensated duty to collect



85

a use tax due from purchasers on property shipped to them 
in the State. It held the duty validly imposed where sales 
were solicited within the State, deeming General Trading 
Co. v. State Tax Comm’n., 322 U. S. 335 (1944) controlling 
though the salesmen were “ independent contractors”  
rather than employees of the vendor. No issue of judicial 
jurisdiction was involved. This “ familiar and sanctioned 
device”  (322 U. S. at 338) of making the distributor the 
tax collector for the State he exploits as a market plainly 
casts no burden comparable to the exercise of jurisdiction 
in personam, with the implications such a jurisdiction has. 
If the problems were analogous, the relevant decision here 
would he Miller Bros. Co. v. Maryland, 347 U. S. 340 (1954), 
where the imposition of the duty was invalidated because 
there was “ no invasion or exploitation of the consumer 
market”  (id. at 347) by the out-of-state vendor. The 
New York Times does not solicit Alabama circulation 
(supra, p. 27); it merely satisfies the very small, local 
demand.

Viewed in these terms, a different question might he 
posed if it were shown that the petitioner engaged in activi­
ties of substance in the forum state, designed to build its 
circulation there. Cf. Mr. Justice Black, dissenting in part 
in Polizzi v. Cowles Magazines, Inc., 345 U. S. 663, 667, 670 
(1953); see also WSAZ, Inc. v. Lyons, 254 F. 2d 242 (6th 
Cir. 1958). That would involve a possible analogy to other 
situations where a foreign enterprise exploits the forum as 
a market and the cause of action is connected with such 
effort (Hanson v. Denckla, supra, at 251-252), though the 
punitive nature of the action and the special situation of the 
press must still be weighed. It also would confine the possi­
bilities of litigation to places where the foreign publisher



86

has had the opportunity to build some local standing with 
the public. No such activities, effort or opportunity existed 
here.

In a federated nation such as ours, the power of the 
States to exert jurisdiction over men and institutions not 
within their borders must be subject to reciprocal restraints 
on each in the interest of all. Cf. L. Hand, J., in Kilpatrick 
v. Texas <& P. Ry. Co., p. 81, footnote, supra. The need 
for such restraints is emphasized in our system by the full 
faith and credit clause of the Constitution. I f Alabama 
stood alone it would be impotent in such a case as this to 
render any judgment that would be of practical importance 
to petitioner. What makes this judgment vitally important 
is the fact that if it is affirmed it is enforceable as such in 
States where the petitioner’s resources are located. Thus 
jurisdictional delineations must be based on grounds that 
command general assent throughout the Union; otherwise 
full faith and credit will become a burden that the system 
cannot bear. No standard worthy of such general assent 
sustains the assumption of jurisdiction in this cause.

Third: The Burden on Commerce. In forcing the peti­
tioner to its defense of this case in Alabama, the state court 
has done more than exceed its territorial jurisdiction. It 
has also cast a burden on interstate commerce that the 
commerce clause forbids.

It takes no gift of prophecy to know that if negligible 
state circulation of a paper published in another state 
suffices to establish jurisdiction of a suit for libel, threat­
ening the type of judgment rendered here, such distribution 
interstate cannot continue. So, too, if the interstate move­
ment of correspondents provides a factor tending to sustain 
such jurisdiction, as the court below declared, a strong bar­



87

rier to such movement has been erected. Both the free flow 
of interstate communications and the mobility of indi­
viduals are national interests of supreme importance. In 
the silence of Congress, their protection against burden­
some state action, unsupported by an overriding local inter­
est, is the duty of the courts. Fisher’s Blend Station v. Tax 
Commission, 297 U. S. 650, 654-655 (1936); Edwards v. Cal­
ifornia, 314 U. S. 160 (1941). In neither area may a State 
“ gain a momentary respite from the pressure of events by 
the simple expedient of shutting its gates to the outside 
world.”  Id. at 173. An attempt to isolate a State from 
strangers or their publications is no less offensive to the 
commerce clause than the attempts at economic isolation 
which have been repeatedly condemned. See, e.g., Minne­
sota v. Barber, 136 U. S. 313 (1890); Baldwin v. G. A. F. 
Seelig, Inc., 294 U. S. 511, 527 (1935); H. P. Hood & Sons v. 
DuMond, 336 U. S. 525 (1949); Dean Milk Co. v. City of 
Madison, 340 U. S. 349 (1951).

This Court has not hitherto considered a case where the 
mere assumption of jurisdiction in a transitory action 
threatened an embargo of this kind. It has, however, held 
that the subjection of a carrier to suit, whether in personam 
or in rem, in a jurisdiction where it is engaged in insub­
stantial corporate activities may impose an excessive bur­
den upon commerce, because of the special inconvenience 
and expense incident to the defense of litigation there. 
Davis v. Farmers Co-operative Co., 262 U. S. 312 (1923); 
Atchison, Topeka & Santa Fe Ry. v. Wells, 265 U. S. 101 
(1924); Michigan Central R. R. Co. v. Mix, 278 U. S. 492 
(1929); Denver & R. G. W. R. Co. v. Terte, 284 U. S. 284, 
287 (1932); cf. International Milling Co. v. Columbia Trans­
portation Co., 292 U. S. 511 (1934). See also Sioux Remedy



88

Co. v. Cope, 235 U. S. 197 (1914); Erlanger Mills v. Cohoes 
Fibre Mills, Inc., 239 F. 2d 502 (4th Cir. 1956); Overstreet 
v. Canadian Pacific Airlines, 152 F. Supp. 838 (S. D. N. Y. 
1957). The burdens deemed excessive in those cases were 
as nothing compared to the burden imposed here, for which, 
as we have shown above (pp. 83-84), there is no overriding 
local interest.

Respondent argued in his Brief in Opposition (p. 42) 
that the cases holding that jurisdiction may be an excessive 
burden became moribund with the pronouncement in Inter­
national Shoe. His contention finds no support in that 
opinion and ignores Southern Pacific Co. v. Arizona, 325 
U. S. 761, 781 (1945), where a few months before the Shoe 
decision Chief Justice Stone alluded to the Davis and like 
cases, otherwise affirming the protective principle for which 
they stand. The need for that protective principle has, 
indeed, been increased by the progressive relaxation in due 
process standards. For the considerations leading to that 
relaxation have to do with the appropriate relationship 
between a State and foreign enterprise and individuals. 
They are entirely inapposite in the situation where an in­
terest of the Nation is impaired.

Fourth: The Freedom of the Press. We have argued 
that the jurisdictional determination violates the Consti­
tution, judged by standards that apply to enterprise in 
general under the constitutional provisions limiting state 
power in the interest of our federalism as a whole. We need 
not rest, however, on those standards. Newsgathering and 
circulation are both aspects of the freedom of the press, 
safeguarded by the Constitution. Neither can continue 
unimpaired if they subject the publisher to foreign juris­
diction on the grounds and of the scope asserted here. The 
decision is, accordingly, repugnant to the First Amendment.



89

This Court has often held state action inconsistent with 
the First Amendment, as embodied in the Fourteeenth, 
when it has “ the collateral effect of inhibiting the freedom 
of expression, by making the individual the more reluctant 
to exercise it”  (Smith v California, 361 U. S. 147, 151
[1959] )—though the action is otherwise consistent with the 
Constitution. Scienter is not generally deemed a consti­
tutional prerequisite to criminal conviction, hut a measure 
of liability for the possession of obscene publications was 
invalidated on this ground in Smith because of its potential 
impact on the freedom of booksellers. The allocation of 
burden of proof in establishing a right to tax-exemption 
fell in Speiser v. Randall, 357 U. S. 513 (1958) because it 
was considered in the circumstances to “ result in a deter­
rence of speech which the Constitution makes free.”  Id. at 
526. Compulsory disclosure requires a showing of a more 
compelling state interest when it tends to inhibit freedom 
of association than in other situations where disclosure may 
be forced (see, e.g., Gibson v. Florida Legislative Comm., 
372 U. S. 539 [1963]; Talley v. California, 362 U. S. 60
[1960] ) ; and its extent may he more limited. Shelton v. 
Tucker, 364 U. S. 479 (1960). Regulation of the legal pro­
fession that would raise no question as applied to the solici­
tation of commercial practice must comply with stricter 
standards insofar as it inhibits association for the vindica­
tion of fundamental rights. N. A. A. C. P. v. Button, 371 
U. S. 415 (1963).

The principle involved in these familiar illustrations 
plainly applies here. If a court may validly take jurisdic­
tion of a libel action on the basis of sporadic newsgathering 
by correspondents and trivial circulation of the publication 
in the State, it can and will do so not only when the plaintiff 
has a valid cause of action but also when the claim is as un­
founded and abusive as the claim presented here. The



90

burden of defense in a community with which the publica­
tion has no meaningful connection and the risk of enormous 
punitive awards by hostile juries cannot be faced with 
equanimity by any publisher. The inevitable consequence 
must be the discontinuance of the activities contributing to 
the assumption of the jurisdiction. The interest of a State 
in affording its residents the most convenient forum for the 
institution of such actions cannot justify this adverse im­
pact on the freedom that the First Amendment has explicitly 
secured. See also pp. 83-84, supra. The occasional solicita­
tion of advertising in the State, being wholly unrelated to 
respondent’s cause of action, does not augment the interest 
of the State in providing the forum challenged here.

CONCLUSION
For the foregoing reasons, the judgment of the Supreme 

Court of Alabama should be reversed, with direction to dis­
miss the action.

Respectfully submitted,

H erbert B rownell 
T homas F. Daly 

H erbert W echsler 
Attorneys for Petitioner 

The New York Times Company
Louis M. L oeb 
T. E ric E mbry 
M arvin E . F rankel 
R onald S. D iana 
D oris W echsler 
L ord, D ay & L ord 
B eddow, E mbry & B eddow

Of Counsel



91

APPENDIX A

Constitutional and Statutory Provisions Involved

CONSTITUTION OF THE UNITED STATES
A rticle I, Section 8 :

The Congress shall have power * * *
To regulate Commerce with foreign Nations, and among 

the several States * * *.

* * * * *

A mendment I
Congress shall make no law respecting an establishment 

of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press; or the 
right of the people peaceably to assemble, and to petition 
the Government for a redress of grievances.

* * * * *

A mendment X IY
Section 1. All persons born or naturalized in the 

United States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein they 
reside. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of 
life, liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal pro­
tection of the laws.

ALABAMA CODE OF 1940 TITLE 7
§ 188. How corporation served.—When an action at law 

is against a corporation the summons may be executed by 
the delivery of a copy of the summons and complaint to the



92

president, or other head thereof, secretary, cashier, station 
agent or any other agent thereof. The return of the officer 
executing the summons that the person to whom delivered is 
the agent of the corporation shall be prima facie evidence of 
such fact and authorize judgment by default or otherwise 
without further proof of such agency and this fact need not 
be recited in the judgment entry. (1915, p. 607.)

* * * * *

§ 199(1). Service on non-resident doing business or per­
forming work or service in state.—Any non-resident person, 
firm, partnership, general or limited, or any corporation not 
qualified under the Constitution and laws of this state as 
to doing business herein, who shall do any business or per­
form any character of work or service in this state shall, by 
the doing of such business or the performing of such work, 
or services, be deemed to have appointed the secretary of 
state, or his successor or successors in office, to be the true 
and lawful attorney or agent of such non-resident, upon 
whom process may be served [in any action accrued or ac­
cruing from the doing of such business, or the performing 
of such work, or service, or as an incident thereto by any 
such non-resident, or his, its or their agent, servant or em­
ployee.] * Service of such process shall be made by serving 
three copies of the process on the said secretary of state, 
and such service shall be sufficient service upon the said 
non-resident of the state of Alabama, provided that notice 
of such service and a copy of the process are forthwith sent

* Following the decision in New York Times Company v. Conner 
291 F. 2d 492 (5th Cir. 1962) the statute was amended by substitut­
ing the following language for the bracketed portion: [in any action 
accrued, accruing, or resulting from the doing of such business, or the 
performing of such work or service, or relating to or on an incident 
thereof, by any such non-resident, or his, its or their agent, servant 
or employee. And such service shall be valid whether or not the acts 
done in Alabama shall of and within themselves constitute a complete 
cause of action.] The amendment applied “ only to causes of action 
arising after the date of the enactment”  and therefore has no bearing 
on this case.



93

by registered mail by the secretary of the state to the de­
fendant at his last known address, which shall be stated in 
the affidavit of the plaintiff or complainant hereinafter 
mentioned, marked “ Deliver to Addressee Only”  and 
“ Return Receipt Requested” , and provided further that 
such return receipt shall be received by the secretary of 
state purporting to have been signed by said non-resident, 
or the secretary of state shall be advised by the postal 
authority that delivery of said registered mail was refused 
by said non-resident; and the date on which the secretary 
of state receives said return receipt, or advice by the postal 
authority that delivery of said registered mail was refused, 
shall be treated and considered as the date of service of 
process on said non-resident. The secretary of state shall 
make an affidavit as to the service of said process on him, 
and as to his mailing a copy of the same and notice of such 
service to the non-resident, and as to the receipt of said 
return receipt, or advice of the refusal of said registered 
mail, and the respective dates thereof, and shall attach said 
affidavit, return receipt, or advice from the postal authority, 
to a copy of the process and shall return the same to the 
clerk or register who issued the same, and all of the same 
shall be filed in the cause by the clerk or register. The party 
to a cause filed or pending, or his agent or attorney, desir­
ing to obtain service upon a non-resident under the pro­
visions of this section shall make and file in the cause, an 
affidavit stating facts showing that this section is applicable, 
and stating the residence and last known post-office address 
of the non-resident, and the clerk or register of the court in 
which the action is filed shall attach a copy of the affidavit 
to the writ or process, and a copy of the affidavit to each 
copy of the writ or process, and forward the original writ 
or process and three copies thereof to the sheriff of Mont­
gomery county for service on the secretary of state and it 
shall be the duty of the sheriff to serve the same on the 
secretary of state and to make due return of such service. 
The court in which the cause is pending may order such



94

continuance of the cause as may he necessary to afford the 
defendant or defendants reasonable opportunity to make 
defense. Any person who was a resident of this state at the 
time of the doing of business, or performing work or service 
in this state, but who is a non-resident at the time of the 
pendency of a cause involving the doing of said business or 
performance of said work or service, and any corporation 
which was qualified to do business in this state at the time 
of doing business herein and which is not qualified at the 
time of the pendency of a cause involving the doing of such 
business, shall be deemed a non-resident within the meaning 
of this section, and service of process under such circum­
stances may be had as herein provided.

The secretary of state of the state of Alabama, or his 
successor in office, may give such non-resident defendant 
notice of such service upon the secretary of state of the 
state of Alabama in lieu of the notice of service hereinabove 
provided to be given, by registered mail, in the following 
manner: By causing or having a notice of such service and 
a copy of the process served upon such non-resident defend­
ant, if found within the state of Alabama, by any officer duly 
qualified to serve legal process within the state of Alabama, 
or if such non-resident defendant is found without the state 
of Alabama, by a sheriff, deputy sheriff, or United States 
marshal, or deputy United States marshal, or any duly con­
stituted public officer qualified to serve like process in the 
state of the jurisdiction where such non-resident defendant 
is found; and the officer’s return showing such service and 
when and where made, which shall be under oath, shall be 
filed in the office of the clerk or register of the court wherein 
such action is pending.

Service of summons when obtained upon any such non­
resident as above provided for the service of process herein 
shall be deemed sufficient service of summons and process 
to give to any of the courts of this state jurisdiction over 
the cause of action and over such non-resident defendant, 
or defendants, and shall warrant and authorize personal



95

judgment against such non-resident defendant, or defend­
ants, in the event that the plaintiff prevails in the action.

The secretary of state shall refuse to receive and file or 
serve any process, pleading, or paper under this section 
unless three copies thereof are supplied to the secretary of 
state and a fee of three dollars is paid to the secretary of 
state; and no service shall be perfected hereunder unless 
there is on file in the office of the secretary of state a cer­
tificate or statement under oath by the plaintiff or his 
attorney that the provisions of this section are applicable 
to the case. (1949, p. 154, §§ 1, 2, appvd. June 23,1949; 1951, 
p. 976, appvd. Aug. 28,1951; 1953, p. 347, § 1, appvd. Aug. 5, 
1953.)



t h e  New  Y O R K  TIMES, TUESDAY, MARCH 29, 1960.

97
APPENDIX B

H e e d T h
R i

eir

The growing movement of peaceful mass 

demonstrations by Negroes is something 

new in the South, something understandable.. . .  

Let Congress heed their rising voices, 

for they will be h ea rd ^

—New York Times editorial 

Saturday, March 19, 1960

ismgVoioices
Z j k S  th e  w h o le  w o r ld  k n o w s  b y  n o w , th o u sa n d s  o f  

-L  JL  S o u th e r n  N e g r o  stu d en ts  a r e  e n g a g e d  in  w id e ­
s p r e a d  n o n -v io le n t  d e m o n s tra t io n s  in  p o s it iv e  a f f ir m a ­
t io n  o f  th e  r ig h t  to  l iv e  in  h u m a n  d ig n ity  as g u a ra n te e d  
b y  th e  U .  S . C o n s t itu t io n  a n d  th e  B il l  o f  R ig h ts . In  
t h e ir  e f fo r t s  to  u p h o ld  th ese  g u a ra n te e s , th e y  a re  b e in g  
m e t  b y  a n  u n p r e c e d e n te d  w a v e  o f  t e r r o r  b y  th o se  w h o  
w o u ld  d e n y  a n d  n e g a te  th a t d o c u m e n t  w h ic h  th e  w h o le  
w o r ld  lo o k s  u p o n  as se ttin g  th e  p a tte rn  f o r  m o d e r n  
f r e e d o m . . . .

I n  O r a n g e b u r g , S o u th  C a r o l in a , w h e n  400 stu den ts 
p e a c e fu l ly  so u g h t  to  b u y  d o u g h n u ts  a n d  c o f f e e  a t lu n ch  
c o u n te r s  in  th e  b u s in ess  d is tr ic t , th e y  w e r e  f o r c ib ly  
e je c te d , te a r -g a s s e d , s o a k e d  to  th e  sk in  in  fr e e z in g  
w e a t h e r  w ith  f i r e  h o se s , a r re s te d  e n  m a sse  a n d  h e r d e d  
in to  a n  o p e n  b a r b e d -w ir e  s to ck a d e  to  sta n d  f o r  h o u rs  
in  th e  b it t e r  c o ld .

In  M o n t g o m e r y ,  A la b a m a , a fte r  stu d en ts  san g  
“ M y  C o u n t r y ,  ’T is  o f  T h e e ”  o n  th e  S ta te  C a p it o l  steps, 
th e ir  le a d e r s  w e r e  e x p e lle d  f r o m  s c h o o l, a n d  tru ck - 
lo a d s  o f  p o l i c e  a r m e d  w ith  sh o tg u n s  a n d  te a r -g a s  
r in g e d  th e  A la b a m a  S ta te  C o l le g e  C a m p u s . W h e n  th e  
e n t ir e  s tu d e n t b o d y  p ro te s te d  to  sta te  a u th o r it ie s  b y  
r e fu s in g  to  r e -r e g is te r ,  th e ir  d in in g  h a ll w a s  p a d ­
lo c k e d  in  an  a tte m p t to  s ta rv e  th e m  in to  su b m iss io n .

In  T a lla h a s s e e , A t la n ta , N a s h v il le , S a v a n n a h , 
G r e e n s b o r o ,  M e m p h is ,  R ic h m o n d , C h a r lo t te , a n d  a  
h o s t  o f  o th e r  c it ie s  in  th e  S o u th , y o u n g  A m e r ic a n  te e n ­
a g e rs , in  fa c e  o f  th e  e n t ir e  w e ig h t  o f  o f f ic ia l  sta te  a p p a ­
ra tu s  a n d  p o l ic e  p o w e r ,  h a v e  b o ld ly  s te p p e d  fo r th  as

p rota gon ists  o f  d e m o c r a c y .  T h e ir  c o u r a g e  a n d  a m a z ­
in g  restra in t h a v e  in s p ire d  m illio n s  an d  g iv en  a  n e w  
d ign ity  to  th e  ca u se  o f  fr e e d o m .

S m all w o n d e r  th at th e  S o u th e rn  v io la to r s  o f  the 
C o n stitu tio n  fe a r  th is  n e w , n o n -v io le n t  b ra n d  o f  
fr e e d o m  fig h te r  . . . e v e n  as th e y  fe a r  the u p sw e llin g  
r ig h t-to -v o te  m o v e m e n t . S m a ll w o n d e r  th at th e y  a re  
d e te rm in e d  to  d e s tr o y  th e  o n e  m a n  w h o , m o r e  than  
a n y  o th e r , s y m b o liz e s  th e  n e w  sp ir it  n o w  sw e e p in g  th e  
S ou th — th e R e v .  D r .  M a r t in  L u th e r  K in g , J r ., w o r ld -  
fa m o u s  le a d e r  o f  th e  M o n t g o m e r y  B u s  P ro te s t . F o r  it 
is his d o c t r in e  o f  n o n -v io le n c e  w h ic h  h as in sp ire d  
a n d  g u id e d  th e  s tu d en ts  in  th e ir  w id e n in g  w a v e  o f  sit- 
in s ; a n d  it th is  sa m e  D r .  K in g  w h o  fo u n d e d  a n d  is 
p re s id e n t o f  th e  S o u th e rn  C h r is t ia n  L e a d e r s h ip  C o n ­
fe r e n ce — th e  o r g a n iz a t io n  w h ic h  is sp e a rh e a d in g  the 
su rg in g  r ig h t -to -v o te  m o v e m e n t . U n d e r  D r .  K in g ’s 
d ir e c t io n  th e  L e a d e r s h ip  C o n fe r e n c e  co n d u cts  S tu ­
d e n t  W o r k s h o p s  a n d  S e m in a rs  in  th e  p h ilo s o p h y  a n d  
te ch n iq u e  o f  n o n -v io le n t  re s is ta n ce .

A g a in  a n d  a g a in  th e  S o u th e rn  v io la to r s  h a v e  
a n sw e re d  D r .  K in g ’s p e a c e fu l p ro te s ts  w ith  in t im id a ­
t io n  and  v io le n c e . T h e y  h a v e  b o m b e d  his h o m e  a lm o s t  
k illin g  h is w i fe  a n d  ch ild . T h e y  h a v e  a ssa u lted  h is  
p e rso n . T h e y  h a v e  a r re s te d  h im  seven  tim es— fo r  
“ sp eed in g .”  “ lo it e r in g ”  a n d  s im ila r  “ o ffe n s e s .”  A n d  
n o w  th e y  h a v e  c h a r g e d  h im  w ith  “ p e r ju r y ” — a felony 
u n d e r  w h ich  th e y  c o u ld  im p r is o n  h im  fo r  ten years. 
O b v io u s ly , th e ir  r e a l p u rp o s e  is to  r e m o v e  h im  p h y s i­
c a lly  as th e  le a d e r  to  w h o m  th e  students a n d  m illio n s

o f  o th e rs— lo o k  fo r  g u id a n ce  an d  su p p o r t, an d  th e re b y  
to  in tim idate  all le a d e rs  w h o  m a y  r ise  in  th e  S ou th . 
T h e ir  strategy is to  b e h e a d  th is a ff irm a t iv e  m o v e m e n t , 
an d  thus to d e m o r a liz e  N e g r o  A m e r ic a n s  an d  w e a k e n  
th e ir  w ill to  stru gg le . T h e  d e fe n se  o f  M a r t in  L u th e r  
K in g , spiritual le a d e r  o f  th e  stu den t sit-in  m o v e m e n t , 
c le a r ly , th e re fo re , is an  in te g ra l p a rt  o f  the tota l 
struggle  fo r  f r e e d o m  in the S ou th .

D e c e n t -m in d e d  A m e r i c a n s  c a n n o t  h e lp  bu t 
app laud  th e  c r e a t iv e  d a r in g  o f  th e  stu den ts an d  the 
q u ie t h ero ism  o f  D r .  K in g . B u t th is is o n e  o f  th ose  
m om en ts in th e  s to r m y  h is to ry  o f  F r e e d o m  w h e n  m en  
an d  w om en  o f  g o o d  w il l  m u st d o  m o r e  than  a p p lau d  
th e  r is in g -to -g lo ry  o f  o th e rs . T h e  A m e r ic a  w h o s e  g o o d  
n a m e hangs in  th e  b a la n ce  b e fo r e  a w a tc h fu l w o r ld , 
the A m e r ic a  w h o s e  h e r ita g e  o f  L ib e r ty  these S o u th ern  
U p h o ld e rs  o f  th e  C o n s t itu t io n  a re  d e fen d in g , is our 
A m e r ic a  as w e ll  as th e irs  . . .

W e  m u st h e e d  th e ir  r is in g  v o ic e s — y e s — b u t w e  
m u st add o u r  o w n .

W e  m u st e x te n d  o u rs e lv e s  a b o v e  an d  b e y o n d  
m o ra l su p p ort an d  re n d e r  th e  m a te r ia l h e lp  so  u rg e n tly  
n e ed ed  b y  th o se  w h o  a re  ta k in g  th e  risk s, fa c in g  ja il, 
an d  even  d ea th  in a  g lo r io u s  r e -a ffirm a t io n  o f  o u r  
C o n stitu tion  an d  its B ill  o f  R ig h ts .

W e  u rg e  y o u  to  jo in  h an ds w ith  o u r  fe l lo w  A m e r ­
ica n s  in th e  S ou th  b y  su p p o rtin g , w ith  y o u r  d o lla rs , 
th is C o m b in e d  A p p e a l  fo r  a ll th re e  n eed s— the d e fen se  
o f  M a rtin  L u th e r  K in g — the su p p o r t  o f  th e  em b a ttle d  
students— a n d  th e  s tru g g le  fo r  the r ig h t-to -v o te .

Your Help Is Urgently Needed . . . N O W ! !

Stella Adler
Raymond Pace Alexander 
Harry Van Arsdale 
Harry Belafonte 
Julie Belafonte 
Dr. Algernon Black 
Marc Blitztein 
William Branch 
Marlon Brando 
Mrs. Ralph Bunche 
Diahann Carroll

Dr. Alan Knight Chalmers 
Richard Coe 
Nat King Cole 
Cheryl Crawford 
Dorothy Dandridge 
Ossie Davis 
Sammy Davis, Jr.
Ruby Dee 
Dr. Philip Elliott 
Dr. Harry Emerson 

Fosdiclc

Anthony Franciosa 
Lorraine Hansbury 
Rev. Donald Harrington 
Mat Hentoff 
James Hicks 
Mary Hinkson 
Van Heflin 
Langston Hughes 
Morris lushewitz 
Mahalia Jackson 
Mordecai Johnson

John Killens 
Eartha Kitt 
Rabbi Edward Klein 
Hope Lange 
John Lewis 
Viveca Lindfors 
Carl Murphy 
Don Murray 
John Murray 
A. J. Muste 
Frederick O'Neal

L. Joseph Overton 
Clarence Pickett 
Shad Polier 
,5idney Poitier 

§A. Philip Randolph 
John Raitt 
Elmer Rice 
Jackie Robinson 
Mrs. Eleanor Roosevelt 
Bayard Rustin 
Robert Ryan

Maureen Stapleton 
Frank Silvera 
Hope Stevens 
George Tabori 
Rev. Gardner C. 

Taylor
Norman Thomas 
Kenneth Tynan 
Charles White 
Shelley Winters 
Max Youngstein

W e in the south who are struggling daily for dignity and freedom warmly endorse this appeal

Rev. Ralph D. Abernathy 
(Montgomery, Ala.)

Rev. Fred L. Shuttlesworth 
(Birmingham, Ala.)

Rev. Kelley Miller Smith 
(Nashville, Tenn.)

Rev. W . A . Dennis 
(Chattanooga, Tenn.)

Rev. C. K. Steele 
(Tallahassee, Fla.)

Rev. Matthew D. 
McCollom 
(Orangeburg, S. C.)

Rev. William Holmes 
Borders 
(Atlanta, Ga.)

Rev. Douglas Moore 
(Durham, N. C.)

Rev. Wyatt Tee Walker 
(Petersburg, Va.)

Rev. Walter L. Hamilton 
(Norfolk, Va.)

I. S. Levy
(Columbia, S. C.)

Rev. Martin Luther King, Sr. 
(Atlanta, Ga.)

Rev. Henry C. Bunton 
(Memphis, Tenn.)

Rev. S. S. Seay, Sr. 
(Montgomery, Ala.)

Rev. Samuel W . Williams 
{Atlanta, Ga.)

Rev. A . L. Davis 
(New Orleans, La.)

Mrs. Katie E. Whickham 
(New Orleans, La.)

Rev. W . H. Hall 
(Hattiesburg, Miss.)

Rev. J. E. Lowery 
(Mobile, Ala.)

Rev. T. J. Jemison 
(Baton Rouge, La.)

Please mall this coupon TODA Y!

Committee To Defend Martin Luther King 
and

The Struggle For Freedom In The South
312 West 125th Street, New York 27, N. Y. 

UNiversity 6-1700

I am enclosing my contribution of $___________________
for the work of the Committee.

COMMITTEE TO DEFEND MARTIN LUTHER KING AND THE STRUGGLE FOR FREEDOM IN THE SOUTH
312 West 125th Street, N ew  York 27, N . Y . UNiversity 6-1700

Chairmen: A .  P h i l i p  R a n d o l p h ,  D r .  G a r d n e r  C .  T a y l o r ;  Chairmen of Cultural Division: H a r r y  B e la fo n te ,  S idney  

P o i t i e r ;  Treasurer: N a t  K i n g  C o l e ;  Executive Director: B a y a r d  R u s t i n ;  Chairmen of Church Division: I ' a the r  G e o r g e  

B. F o r d ,  R e v .  H a r r y  E m e r s o n  F o s d i c k ,  R e v .  T h o m a s  K i l g o r e ,  Jr. ,  R a b b i  E d w a r d  E .  K l e i n ;  Chairman of Labor Divi­

sion: M o r r i s  l u s h e w i t z

Nome-
(PLEASE PR IN T)

Address-

C it y . _Zone_ _ S u ie _

J I wont to help | | Pleese send further Infotmoiion

Please make checks payable to:

Committee To Defend Martin Luther King 
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