Delaware State Board of Education v. Evans Brief in Opposition to Certiorari

    IN  THE

Supreme (Emtrt of tty llnttfb ĵ tatea
October Term, 1962

No. ( f i t .

THE NEW YORK TIMES COMPANY,
A Corporation,

v.
Petitioner,

L. B. SULLIVAN,
Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF ALABAMA

H erbert B rownell 
T homas F . Daly, 

Attorneys for Petitioner 
The New York Times Company

Louis M. L oeb 
H erbert W echsler 
Marvin E. F rankel 
Saul L. S herman 
R onald S. D iana 
L ord, Day & L ord 
B eddow, E mbry & B eddow 

Of Counsel



INDEX

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

Jurisdiction ------------------------------------------------------------------  1

Questions P resen ted --------------------------------------------------- 2
Statement ____________________________________________  3

1. The nature and circumstances of the alleged
libel ____________________________________________  3

2. The evidence of allegedly libelous impact upon
respondent ------------------------------------------  6

3. The demand for a retraction------ ---------— 8
4. The rulings below on the m erits____________  8
5. The jurisdiction of the Circuit Court _ 9

R easons for Granting the W r i t -------- -------------- --------  12

Conclusion --------------------------------------------------------------  31

A ppendix A  ___________________________________________  33

A ppendix B ___________________________________________  37

A ppendix C -----   105

Citations

Cases :

Abrams v. United States, 250 U. S. 616------------------- 13
Age-Herald Publishing Co. v. Huddleston, 207 Ala.

40 ______________    28
Barrows v. Jackson, 346 U. S. 249 --------------  — ....... 21
Bates v. City of Little Bock, 361 U. S. 516___ —  20
Beauharnais v. Illinois, 343 IJ. S. 250 ______   15
Blankenship v. Blankenship, 263 Ala. 297 ____  __ 23
Bridges v. California, 314 U. S. 252 ----------------------  14,18
Canadian Pacific By. Co. v. Sullivan, 126 F. 2d 433

(1st Cir.) cert. den. 316 U. S. 696 ------------------------ 24
Cantwell v. Connecticut, 310 II. S. 296 _ 12,14, 20

PAGE



11 I N D E X

Chaplinsky v. New Hampshire, 315 U. S. 568 _____  15
Craig v. Harney, 331 U. S. 367 ____________________ 14,18
Ex Parte Cullinan, 224 Ala. 263 ----------------------------- 22
Dailey Motor Co. v. Reaves, 184 N. C. 260 _________  23
Davis v. Farmers Co-operative Co., 262 U. S. 312 24
Davis v. O’Hara, 266 U. S. 3 1 4___________________  23
Davis v. Wechsler, 263 U. S. 2 2 ____________________ 23
Dean Milk v. City of Madison, 340 U. S. 349 _____  15
De Jonge v. Oregon, 299 U. S. 353 ________________  13
Denver & R. G. W. R. Co. v. Terte, 284 IT. S. 284 __ . 24, 30 
Edwards v. California, 314 U. S. 160 __ ________  29
Erlanger Mills, Inc. v. Cohoes Fibre Mills, Inc., 239 

F. 2d 502 (4th C ir .)____________________________  30
Fisher’s Blend Station v. Tax Commission, 297 

U. S. 650 ______________________________________  30
Garner v. Louisiana, 368 U. S. 157________________  18
Grosjean v. American Press Co., 297 U. S. 233 __ __ 20
Ex Parte Haisten, 227 Ala. 183___________________ 22
Hanson v. Denckla, 357 IT. S. 235 ________24, 25, 26, 27, 28
Harrub v. Hy-Trous Corporation, 249 Ala. 414 - 22
Hartman v. Time, Inc., 166 F. 2d 127 (3d Cir.) cert, 

den. 338 U. S. 858 ______________________________  26
Hutchinson v. Chase & Gilbert, 45 F. 2d 139 27
Insull v. New York World Tel. Corp., 273 F. 2d 166,

(7th Cir.) cert, denied 362 IT. S. 942 ____________ 26
International Shoe Co. v. Washington, 236 U. S.

310 ______   24,25,26,27
Kilpatrick v. Texas & P. Ry. Co., 166 F. 2d 788 (2d 

Cir.) __________________________________________  29
Kingsley Pictures Corp. v. Regents, 360 IT. S. 684 __ 18
Konigsberg v. State Bar of California, 366 U. S. 36 14,16
Mattox v. Neivs Syndicate Co., 176 F. 2d 897 (2d 

Cir.) cert. den. 334 IT. S. 838 __  _________  ___  26

PAGE



PAGE

McGee v. International Life Ins. Co., 355 U. S. 220 _ 27
Michigan Central Railroad Company v. Mix, 278 

U. S. 492 ______________________________________  24, 30
Morgan, Connor and Waggoner v. Columbia Broad­

casting System, Inc., U. S. D. C. N. D. Ala. (So.
Div.) Civil Actions No. 10067-S, 10068-S, 10069-S 19

N. A. A. C. P. v. Alabama, 357 U. S. 449 20, 21, 22, 23
Near v. Minnesota, 283 U. S. 697 __ _______  _ 15
New York Times Company v. Connor, 291 F. 2d 492 19
Norris v. Alabama, 294 U. S. 587 18
Olcese v. Justice’s Court, 156 Cal. 82 23
Orange Crush Grapico Bottling Co. v. Seven-Up 

Company, 128 F. Supp. 174 (N. D. Ala.) . 22
Parks and Patterson v. New York Times Company,

195 F. Snpp. 919, rev’d. September 18, 1962 19
Pennekamp v. Florida, 328 U. S. 331 14,18
Perkins v. Benguet Consol. Mining Co., 342 U. S.

437 ___________________________________________  25
Polizzi v. Cowles Magazines, Inc. 345 U. S. 663 28
Putnam v. Triangle Publications, Inc. 245 N. C. 432 30
Roberts v. Superior Court, 30 Cal. App. 714 23
Roth v. United States, 354 U. S. 476 ____________ 15
St. Mary’s Oil Engine Co. v. Jackson Ice <& Fuel Co.,

224 Ala. 152 __________________________________ 22
Shelley v. Kraemer, 334 U. S. 1 __________________  21
Shelton v. Tucker, 364 U. S. 479 ___________________ 15, 20
Smith v. California, 361 U. S. 147 __ _. _____  15, 20, 30
Speiser v. Randall, 357 U. S. 513 _____  ____ 20
Staub v. City of Baxley, 355 IT. S. 313_________  __ 23
Sweeney v. Patterson, 128 F. 2d 457 (D. C. Cir.

1942) cert, denied, 317 U. S. 678 (1942) 15
Sweeney v. Schenectady Union Publishing Co., 122 

F. 2d 288 ____________________ _____

INDEX 111

16



IV I N D E X

Thompson v. Louisville, 362 U. S. 199 ------------------- 18
Thompson v. Wilson, 224 Ala. 299 -------------------------  23
Times Film Corporation v. City of Chicago, 365 

U. S. 4 3 _______________________________________  14,15
Travelers Health Assn. v. Virginia, 339 U. S. 643 - 27
Ward v. Love County, 253 U. S. 1 7 ------------------------ 23
Whitney v. California, 274 U. S. 357 ----------------------  19
Willis and Penton v. Columbia Broadcasting Sys­

tem, Inc., U. S. D. C. M. D. Ala. (No Div.) Civil 
Actions No. 1790-N, 1791-N_____________________  19

Wood v. Georgia, 370 U. S. 375 ____________ __ 14,18
Zuber v. Pennsylvania R. Co., 82 F. Supp. 670 (N. D.

Ga.) __________________________________________  24

Statutes:

Act of July 14, 1798, 1 Stat. 596 13
Title 28 U. S. C.  ̂1257(3)_____________ ___ 1
Title 7 Section 199(1) Code of Alabama (1940) 3

Miscellaneous
25 ALR 2d 838 _______________________________ 23
Cliafee, Free Speech in the IJnited States

(1941), pp. 27-29 _______________________________ 13
Leflar, The Single Publication Bide, 25 Rockv 

Mt. L. Rev. 263 (1953) ______________   . 26
Prosser, Interstate Publication. 51 Mich. L.

Rev. 959 (1953) ___ 26
29 Univ. of Chi. L. Rev. 569 (1962) 26

PAGE



IN  TH E

Supreme Court of ttjr Mnttrb t̂atra
October Term, 1962

No.

THE NEW YORK TIMES COMPANY, 
A Corporation,

v.
Petitioner,

L. B. SULLIVAN,
Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF ALABAMA

Petitioner respectfully prays that a writ of certiorari 
issue to review the judgment of the Supreme Court of 
Alabama entered in the above-entitled case on August 30, 
1962.

Opinions Below

The opinion of the Supreme Court of Alabama (Appen­
dix B, infra, pp. 37-78) is reported in 144 So. 2d 25. The 
opinion of the Circuit Court, Montgomery County, denying 
petitioner’s motion to quash service of process (Appendix 
B, infra, pp. 80-89) is unreported. The charge to the jury 
of the Circuit Court (Appendix B, infra, pp. 89-104) appears 
at R. 1947-1954, 1957A-1957J.

Jurisdiction
The judgment of the Supreme Court of Alabama (Ap­

pendix B, infra, pp. 78, 79) was entered on August 30, 1962. 
The jurisdiction of this Court is invoked under 28 U.S.C. 
§ 1257 (3).



.•H I 2  '■1

Fi'xtnt'fe i'ntiiji£say i8'*ete }A y ^  w m i f i i d
KJU-! 1 ,in i 'i p ■j‘)(Lot‘)( >

1. Whether, consistently with the guarantee of freedom 
of the press in the First Amendment as embodied in the 
Fourteenth, a state may hold libdtfms per se and actionable 
by an elected City Commissioner, without proof of special 
damage, sts^rrmpj^i critippl[(|f t̂ ip (popdiiei; p f^ j department 
of the City Government under ^^..^im^dicjiion which are 
inaccur^tp.jn, vsome particulars.

2. Whether there was sufficient evidence to justify, con­
sistently with the gharaniee ^olffreedom of the press, the,.\ > *>V\
determination that statements, naming no individual but 
critical of the Police .Department under the jurisdiction of 
the reppijident;^:gin'.ieljec'tediCity Cbirtnttis&tsiefl, rtyfete de- 
famat/ify/aft ,tft hiid ©niiVffulidfib aMMif 9flSbfcknri\jftr tefel

’’ 3! Whether an'award of'$oOd,'i[66‘ as “ presumed”  and
‘I'd r.-HM)’ Mli j ,  ' Ip I l l ' H U v J m i ,  ' J i l l , ,  / / ‘ ) i ; / '>'I '■>! , • 'll ipunitive damages for libel constituted, in the circumstances
.lU. .P'.nyii A IK .  •.<14-1 Jjjii ti lie-:.7<«Iku‘)iIi ii i J .•.-i-i Iilm juuki In I /.of this case, an abridgement ot the freedom of the press.

4. Whether the assumption''o¥* jurisdiction in a libel 
action/-against :id foreign ’edfpora'trdii1 publishing 6L: news- 
pit>er ih hnother^tktfe', isase'd upon Sporadic hewsgatherin^ 
activities 'by! Vof respondents, ocOaSiiWar 'sdlicitatibn b f1 ad­
vertising 1 andr 1 thlhiife'ctllb/ dfetiihtitioffi 'of: 'the nowspape'f 
within1 the fbf’tfiri 'stalty, tiJanS'cejilded the territorial limita­
tions! <df diie d’focessj ihlposted a'forbiddeh burdbii oii ititei1- 
state commerce or abridged tire ̂ frWdbih of* tli4 press.'

iioil*>ii>fei*i.ul.
Constitutional and Statutory Provisions Involved

<|/.  ) m u  l id u l 7 .  In t - i i id  > M i i i ' r i q i i A  v i n l d  t i i ' j ingTi iJ i .  • m i

.L-iuThe!'. constitutional-: and 'Statutory . provisions involved 
ar^sdt fbrthiioaiAippiendik-A,'mfrh,-p î 33-36:* t’>il ■-> : m1 i

i 7f.;;j •'



3

•«*'| .l-iren-i \y, »ilt l.iiu -.'Statemeiituit iiil/'. l*n-.‘t-*< I. ol ••mini

The 3u'dgA!i,eiitlbf(thk‘S ilpi,eiie CohiT'of Aikbhmh'i'tf’thik 
ckuse kffirbifed'a'^d^fafieM'^'f'ttte1:Circuit"fburt o f'^ b fd - 
^Gtne'fy CBiiritV, 'eiitdfbd1 oh thd: f  di'ditit' of !h jitry1,' a^kjftikt 
til'd petitioiidfh'iid fBUr 'db-dfifoiid'aii'tsV Rallpli D. Addfnkfh'y', 
Ft eel L; Shkittibs’kWt'li, S’! 'SJSed^' ‘St.'j 'add "Jr 'EJ iEo\i’f lry; 
k^krding 'rdU^nAdti^ $90(/,€00,"tlifei ftilF htnouhf'dlkimGd' 
dkMdjged® f i t ' libdl1 "(iR.:! f9'58) f  ‘ ’ Rdspbfdeiif,' onb 1 b f 1 iMred 
efddted1 CBmttii'.ssiond'i ’̂ i f ! the1 'City '  o f 1 Mdntyblifeiy,11AM- 
buhia1, indtifutd&>thd adtliW till 'April119,1 TfifeO'/ Afldgiri^ ‘fhbt 
lib 'had been libdidd'by't'wHj 'paba^r’apK^'df ad adVd'ttisehieiit 
pIkbliihed'ilh l̂ F<OA<^ YYA'lc'TMes dii’M k m  
idk o f  ptbbdks1 'blade1' ’dn" ‘petitioned1 'hV ddlifei-y"tb"Efd 
illd^ed'h'^bftFdri'ArdbahVa' ah'ddiy'dubbtRiited1 'idrVicd pilF- 
Hiiaftt'td t L 1 ”* TOiftb ofthe S tk #  (Titld!7, t o
tlioh 1'99' '(l1), lib'dd1 "of 'A fdiM a,11 A f'p e f'd t 'A1, 'infrtii fr 34V. 
A motion to quash asserting constitutional objection^ W  th'b 
^MfpA^tiop,. ,Qf , the, _ Circuit ( Cpi^rt. .under (  ̂.dye t . r̂|??eSs
clause, pf the Fourteenth Amendment and the. CommerceP.Tin - ni'ir.iKxj^ri in <i- 1;<I • >iTr >!-.// iUzi* ->111 11. Tiiar Inin
Clause (R, 33, 39,350) was denied (R. 47). In the.ensuing-ujo-i riift .jtT*irjTMKiIt »/i>i> '.fit fn iH(i!igf;ii;nf P.irf '.ill juiifn
trial, petitioner contended bv demurrer (R. 58-9). objection-innT• ft: ini '/Trin'in'ir Monrcî Mn .'fTi'ilnionx'n ■/■H'lo IthiiiMii

fa • f e , i W , , ( g ; / 1^ P f o ^ e4i,C°T„.^
directedverdict ,(R. 1957M), and motion for a,,new-trial*i> / ill in 11 > inuiniilNn 'm in i mgr* •iirTfo uoiTiairirflii •i/iti-iod

c* uldl n?,ft b9.!h^ , . t,? ,r W
the respo.p^pt w i$ p 4 ^ rk lp ;n ^  $ e ( freedom (pf the ^  
guaranteed .fe.fhp ^pprteent^ Am epdm ent^.J^
contention was rejected by the Circuit Court. The Su- 
pt^iiid <Cofiidtl o f  Alabama lsdsta>iudd4heae; t-l*(lihgsl on appeal. 
Inin .•rii vi'K -mtnrnn-ibim! iriiildo of .rurihnn’ ) iltuorl ,-g-inii 

11alt . The nature and circumstances; o f the! alleged, libel 
adveiltisemept (R)il698-17;Q2)ya copy- o f (which was af: 

tached to the complaint (R. 2-10) and is set forthibeldWiiin 
Appendix C, infra, p. 105, was placed through a New York 
advertisiri^'agdhc^'by' Shi’ oFgatii2atton’!hamed;rthb -“‘ Com­



4

mittee to Defend Martin Luther King and the Struggle for 
Freedom in the South.”  It named approximately 80 in­
dividuals as officers and members of the Committee, in­
cluding many of national and world fame for humanitarian 
work and for achievement in religion, political affairs, 
trade unions and the arts, tinder the title “ Heed Their 
Rising Voices” , taken from a New York Times editorial 
of March 19, 1960, the advertisement portrayed the activi­
ties and struggles of students and others engaged in non­
violent demonstrations against the practices of racial 
segregation. As indicated by the Committee’s title, the 
advertisement centered mainly on the problems of Dr. 
Martin Luther King, Jr., founder and president of the 
Southern Christian Leadership Conference, and concluded 
with an appeal for funds to support the legal defense of 
Dr. King, who had been indicted shortly before for 
perjury.*

Of the advertisement’s ten paragraphs of text, the third 
and part of the sixth were the basis of respondent’s libel 
claim. The first paragraph of the advertisement, not com­
plained of by respondent, described generally the actions 
and goals of Southern Negro students demonstrating “ in 
positive affirmation of the right to live in human dignity as 
guaranteed by the U. S. Constitution and the Bill of 
Rights.”  It went on to charge that these students were 
“ being met by an unprecedented wave of terror . . . . ”

The second paragraph told of a student effort in Orange­
burg, South Carolina, to obtain lunch-counter service, and 
reported that the students had been forcibly ejected, tear- 
gassed and arrested en masse under physically trying 
conditions.

* Dr. King was later acquitted on this charge (R . 1803).



5

The third paragraph, the first of the two alleged to have 
libeled respondent, read 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- 
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.”

Respondent’s evidence showed that the only part of this 
statement thought to refer to him was the assertion that 
“ truckloads of police”  had “ ringed”  the campus (R. 1837), 
and that this assertion was incorrect “ although on three 
occasions they [the police] were deployed near the campus 
in large numbers”  (R. 1712). It also appeared that less 
than the “ entire student body”  protested and that the din­
ing hall was not “ padlocked” , but, as respondent testified, 
these were matters relating in any event to the State Edu­
cation Department, not to him (R. 1840-41).

The fourth and fifth paragraphs of the advertisement, 
not claimed to be false or libelous in any respect, spoke of 
student activity in “ Tallahassee, Atlanta, Nashville, 
Savannah, Greensboro, Memphis, Richmond, Charlotte, and 
a host of other cities in the South” ; charged hostility by 
police and other officials; and went on to portray the leader­
ship role of Dr. King.

The sixth paragraph began with the following sentences, 
comprising the second extract charged to be libelous and 
the remainder of the basis for the lower court’s charac­
terization of the advertisement as “ false and malicious”  
(Appendix B, infra, p. 77):

“ Again and again the Southern violators have 
answered Dr. K ing’s peaceful protests with intimida-



G

•m.itumiandiYiolenico.i i They haveibombed his,bom& almost 
killing his wife hav^.^^imjted,;fei?|
person. They have arrested him seven times—for

' ' 'M&l1 tbl'f dduld1 'iih^ryk’liih fdf^ew'yk^L’
........ j i v ) f  l i i i i i  - o m * * - I n i b .  111i / /  i i ' i i i n i i  ■.-m i<>«i Ktul

Ml

" ''(I)'1 ’’Mai*!l)r. Kbag‘’ahpme had’ in fact Keen bombed 
twice,1 although' one . o f1 t!he ‘ bombs failed to explode, 
with flf. l£ing’s" w ife ' and child at home,1'and 'that 
both occasions preceded respondent’s. tenure as Com*,

'“ • v J y s w m  ...............................hs.ill uni m i 1 <\\u i l l i i l  <»! ! > l » i  o i  hidMloiH hf*.»UT‘ >h>l-
, (2) That Dr. King had been arrested .only, four..( ,!>.! ,-M)7 -!in imu-i -mTi n-Siiri , bim. •i?ffloi. to.--hiipK>l->rnTtimes, not seven as the advertisement said, three ot 

1,1 !the arrests antedating respbhdehl^s ’tenure as Oommisi 
*11M'dlbhef1 tK.;TT11,’ I'flB',11 8 2 7 •"ltl ' “’iH '"obiv>->o

e - ‘>l , mj,^j ''^bai!‘t);r.' ’King1 hadln ‘tact' been 'indicted on ‘two 
-uibjjgJJjdi5̂ 1 diHintd,’ 1 'cht'r'jdng''-'ddteift ikl1 'sebt’diic'es "64* 
fl >*>r ' ( ( R v J  ̂ • i >•>/(•>«»lIn><| f(>*i < w h  i ii i il  ijifi

-I.I.M tt' agitate' a d ’t^W hbtM r’Dib1
King had bbbn1 'fa u lt e d 1 'db the'Wcatei'dtf b fflli 'ahheSt;

•I,, W ihrM fh*
<)lli /d>!i;/ .n lm ilt /.  I “  ni / ( iv i t ’iH 111• >I>n t>
l)n The i«tfemlainder > 11 of > i iflhei i adveMisemetaty1 • >prhidingf i >DrT

wad >nofc claimed dot be' fald© or lifeelodsb-irfio'' ■'11f * * l*1" 1 •r,ib"|
.” iii /! ,i ( I to *i(,it 11iif-

2. The evidence of allegedly libelous impact upon
>■>•>!!•>tii'x miuioilot ‘Hit il Ir// iHig‘)ii ili.|I'.vii.H ii!i[ (ITzi* ‘ii! Prespondent—The condemned advertisement contained no

_ ____  ^  w  ^  r e s p o n d e n t___
<1101-1, Ll lau lii.il; ' ) - ( ,; t . "  - i ;  f II • I I 11 ■)" i t - j ) 7 bt; •y l t .  lo J i o i t a x n - i t

mony, the basis tor his role as aggrieved .plaiiijtiTX (was tip 
“ feeling”  that the advertisement reflected upon him, ‘ ‘ the 
0 fifed Cbidhlibdioildi*^'tbid thb!cobiirinnit^1*’ fi#.'f849).
-(iliiiu itiii ii ti // <it '̂>to'!(( fnJ‘i‘>i!‘')i| <’g iiiy l .*f< 1 b'Vfov/<ffr;



7

/II' i<9pecrfitallyj1 the' eVidetite: dhowed that' 'fesponderity in his 
daphcity‘as ;Commlssibnei-, had supervision’oVfeif >the;Morif 
gomery Police Department, Fire Departm'eift; !J)epartment 
of Cemetery and Department of Scales (R. 1827). He was 
i W y ' ^ r ^ t ^ e V W W W  Police 
^yM^Ws^iilhludiiig 'tliak'e Mhiti^fhe' ll 'a h M a ’ Stkt'b ^bl-
le'ge11 epiifodb'1 ie f erfed1 to1 ’ ixi' the advef tii emeht \ these' he nig
dkder ’ 'the su^er^sion o f  'Montgomery hi1 th ief o f  'Police
•(RillM i r < >i1i,‘><1 f * llll(1‘ ’ •b<HM .(.I Iii<|/. m() . ( I
jio-l t tr*>! >11 < M ] >-.• II ' //nil nt y.ft l)ol.\.\II(j" 'ITI» /'lit! gll IVJi*
11' 'To establish 'thfe1 allegedly1 libelousJ effect o f1 the advertisb- 

rtienf upon 1 respondeat;1'shd Witnesses and respbUderithifn- 
seif were1 petihitted'Ovbf'bbjeofion to''ariaounbe'their views 
that "the'1 allegedly libelous 1 'itatdhieht'S11 would'' fetid tb! be 
associated 1 With1 ‘ the1 ' f  ity' tjr'overhmeht,11 'with! the"1 Commis- 
sibribts'gbheraUy-; • and' with • i-espoiddeht' *“ k littib i mote’ V o f 
with respondent more specifically 'Und1 pUi'tlcniiarijl’ îR! l3!?2̂ ’, 
1724, 1728, 1736, 1755-6, 1759, 1766-7, 1771, 1785, 1837). 
Ihiree o f  these wltiiesses^iaif ̂ r^ 0seenEMIi^a^yeruse'ment 
when' ttiey were ‘cal’letl to 'the1 office ol ’ respondent’s! counsel 
ahd’ sKdWn'it in order H,o equip lliem’as witnesses'(ill 'itfe - 
40;1 T73t, iV6^-4, itte'iiy.k’ 1 ’’the" six1 witnesses' said ’thalt if 
they1 hiid1 believed'1 the ' statements about ’ the" police in the 
advbytisementSj ihey would have thought less ofrespondbiit, 
Wdiild'1 have ' cohyidereel half1 'the' police ' had 'been guilty* !of 
shribiik' hiisbehavibr and' would" have"thought respofident 
wad carrying1 out the' duties of'hi4 office ihcompetentiy and 
improperly (fe!T7^5, 'f tk -f f i lg h , iM f'V tjo& M lf; rf§6-7)‘ 
Mbwyfef,';tibne1 o f1 'the witnesses'testified that' he Relieved
the'adVertisemeht ; 'hve speciticatt'y tes'tihed 'that they dis-
>ill .•met-' 7-i•>•/•> Ik *mii;b ‘ i**;ili •g/iihvij.'dj .(()<.')L‘ .<. Xt-( L
in •>* iltrittay be'nottfi here'that iapprOiiJm!aftfclly 394fcb]iiesof the issue

the; (advertisement jp question ,y/ere circulated
in the State of Alabama; of these, approximately 35 were 
to ' taoat£ottitty -Ctiurtty*(&“ *17*20) P'1< 1

distributed
Inti  li ' i 'Ml



8

believed it; and none was actually led to think less kindly 
of respondent because of it (R. 1743, 1745-6, 1757-9, 1764, 
1768, 1772, 1789).

3. The demand for a retraction.— On April 8, 1960, 
respondent wrote to petitioner and to the four individual 
defendants demanding a retraction of the statements in the 
advertisement which are the basis for the libel action (R. 
1706-7). On April 15, 1960, counsel for petitioner replied, 
saying they were “ puzzled as to how”  respondent con­
sidered the disputed statements to reflect upon him, assur­
ing him that the assertions in the advertisement were still 
being checked, and suggesting that respondent might ex­
plain further to them how these assertions were deemed 
reflections upon him (R. 1708). Respondent made no 
further reply, but filed this suit, recovering the full $500,000 
demanded by the complaint.

4. The rulings below on the merits.—As previously 
noted (p. 3), petitioner contended throughout that the facts 
alleged and proved could not support a judgment in 
respondent’s favor for libel consistently with the freedom 
of the press guaranteed by the First Amendment as made 
applicable to the States by the Fourteenth Amendment. 
Specifically, petitioner contended that the constitutional 
safeguard was infringed by holding the publication libelous 
and actionable without proof of special damage, by per­
mitting and sustaining a finding that the statements were 
“ of and pertaining to”  respondent and in sustaining the 
award of damages embodied in the verdict (R. 58-9, 2012, 
2048-9, 2050). Rejecting these claims at every stage, the 
trial court charged that the portions of the advertisement 
in issue were “ libelous per se” , that “ [gjeneral damages 
need not be alleged or proved but are presumed” , that



9

respondent was entitled to recover both, such “ presumed”  
and punitive damages if the jury decided that the words 
related to and concerned him and that the damages awarded 
were not excessive (R. 86, 1951-4, 2057D).

In its opinion affirming the judgment, the court below 
agreed with these rulings. 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 ” ; and 
that the “ matter complained of is, under the above doctrine, 
libelous per se, if it was published of and concerning the 
plaintiff” . Appendix B, infra, p. 53. It held, further, 
that since it is “ common knowledge”  that a city’s “ govern­
ing body”  controls such groups as police and firemen, and 
since “ praise or criticism [of such employees] is usually 
attached to the official in complete control of the body” , the 
trial court had correctly sustained the complaint as alleging 
a libel “ of and concerning”  respondent and the verdict so 
finding in his favor (id., pp. 55-56, 59, 77). It also rejected 
petitioner’s arguments under the First and Fourteenth 
Amendments (assignments of error 289-291, 296, 298, 306- 
308, 310), holding that (a) these were answered by the libel­
ous character of the advertisement and that (b) in any 
event, the “ Fourteenth Amendment is directed against 
State action and not private action.”  Id., pp. 58-59.

5. The jurisdiction of the Circuit Court—Petitioner 
is a New York corporation which has not qualified to do 
business in Alabama or designated anyone to accept serv­
ice of process there. It has no office, property or employees 
resident in Alabama (R. 435-6). Its staff correspondents 
do, however, visit the State as the occasion may arise for 
purposes of newsgathering. In the years 1956 through



1 0

April 1960, nine correspondents made such visits, totaling, 
in the view of the courts below, 153 days.* In the first 
five months of 1960 there were three such visits, two by 
Claude Sitton, the staff correspondent stationed in Atlanta, 
and one by Harrison Salisbury (R. 117). The Times also 
had an arrangement with newspapermen employed by Ala­
bama journals to act as “ stringers” , paying them for 
stories they sent in that were accepted at the rate of a cent 
a word. The effort was to have three such stringers in the 
State, including one in Montgomery (R. 122, 300) but only 
two sold stories to The Times in 1960, Chadwick of South 
Magazine, who was paid $155 to July 26, and McKee of the 
Montgomery Advertiser, who was paid $90 for dispatches 
in that time (R. I l l ,  112, 297-303, 438). McKee also was 
asked to investigate the facts relating to respondent’s claim 
of libel, which he did (R. 180, 698).

The advertisement complained of in this action Avas pre­
pared, submitted and accepted in New York, where the 
newspaper is published (R. 384-386, 434). The national 
daily circulation of The Times was 650,000, of which the 
total sent to Alabama was 394. The Sunday circulation of 
The Times was 1,300,000, of which the Alabama shipments 
totaled 2,440 (R. 396-7). These papers were either mailed 
to subscribers or shipped prepaid by rail or air to Alabama 
news-dealers, whose orders Avere unsolicited (R. 399, 402-3, 
441). The Times would credit these dealers for papers 
which Avere unsold or which arrived late, damaged or incom­

* The finding that “ correspondents of The Times spent 153 days in 
Alabama” during these years (Appendix B, infra, pp. 38, 84) must be 
based, we believe, on the petitioner’s records of the correspondents’ 
expense accounts, which were introduced in evidence and covered 
115 days (R. 753-779) and on 50 published stories by such cor­
respondents having Alabama date-lines, which were separately offered 
in evidence (R . 783-1025). If so, we think it plain that the two 
sets of figures involve a duplication as to dates and that the total 
number of days is 115, not 153. See also R. 303-310.



1 1

plete, the latter being certified by a local baggage man upon 
a form provided by The Times (R. 403, 406). Gross rev­
enue from this Alabama circulation was approximately 
$20,000 in the first five months of 1960 of a total circulation 
revenue of $8,500,000 (R. 442).

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. 336-8, 344-6). The New York Times Sales, Inc., a sub­
sidiary corporation, also solicited advertisements in Ala­
bama, though it has no office or resident employees in the 
State. Four employees spent a total of 26 days in Alabama 
for this purpose in 1959 and one spent one day there before 
the end of May in 1960 (R. 330). Alabama advertising 
linage, including that volunteered and solicited, amounted 
to 5,471 in 1959 of a total of 60,000,000 published (R. 334, 
336); it amounted to 13,254 through May of 1960 (R. 334) 
of a total of 20,000,000 lines (R. 335). Revenue from an 
Alabama supplement published in 1958 was $26,801.64 (R. 
374). For the first five months of 1960 gross revenue from 
Alabama advertising was $17,000 to $18,000 of a total ad­
vertising revenue of $37,500,000 (R. 440). Gross revenue 
from Alabama advertising and circulation during this 
period was $37,300 of a national total of $46,000,000 (R. 
443).

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 of process on McKee as 
a purported agent and the substituted service on the Sec­
retary of State, against objections based on the territorial 
limitations of due process, the Commerce Clause and the 
constitutional protection of the freedom of the press (R. 
33, 39, 350, Appendix B, infra, pp. 37-49, 82-88). They also 
held that though petitioner had raised these questions by



1 2

motion to quash, appearing specially for that purpose as 
permitted by the Alabama practice, the fact that the prayer 
for relief asked for dismissal for “ lack of jurisdiction 
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. 41-42, Appendix B, infra, pp. 49-52, 80-82).

REASONS FOR GRANTING THE WRIT
I

The decision of the Supreme Court of Alabama gives a 
scope and application to the law of libel so restrictive of the 
right to protest and to criticize official conduct that it 
abridges the freedom of the press, as that freedom has been 
defined by the decisions of this Court. It transforms the 
action for defamation from a method of protecting private 
reputation to a device for insulating government against 
attack. I f the judgment stands, its impact will be grave— 
not only upon the press but also upon those whose welfare 
may depend on the ability and willingness of publications 
to give voice to grievances against the agencies of govern­
mental power. The issues are momentous and call urgently 
for the consideration and determination of this Court.

First: The doctrine espoused by the court below is 
that a public official is entitled to recover “ presumed”  and 
punitive damages for a publication critical of the official 
conduct of a governmental agency under his general super­
vision, if that publication tends to “ injure”  him “ in his 
reputation”  or to “ bring”  him “ into public contempt”  as 
an official—unless a jury is persuaded that it is entirely 
true.

This principle of liability, resting as it does on a “ com­
mon law concept of the most general and undefined nature”  
(■Cantwell v. Connecticut, 310 U. S. 296, 308), is indis­



13

tinguishable in its function and effect from the proscription 
of seditious libel, which the verdict of history has long 
deemed inconsistent with the First Amendment. See 
Holmes, J. in Abrams v. United States, 250 U. S. 616, 630; 
Chafee, Free Speech in the United States (1941), pp. 27-29. 
In place of fine and imprisonment as the repressive sanc­
tion, damages are authorized “ not alone to punish the 
wrongdoer, but as a deterrent to others similarly minded”  
and the damages are fettered by “ no legal measure”  of 
amount (Appendix B, infra, pp. 74, 76). Such damages are 
no less apt than criminal conviction to stifle that “ free 
political discussion”  which this Court has deemed “ the 
security of the Republic, the very foundation of constitu­
tional government”  (De Jonge v. Oregon, 299 U. S. 353, 
365).

There are, indeed, respects in which the private action 
brought by the aggrieved official may be more repressive 
than a prosecution for seditious libel. There is no require­
ment 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 contempt or disrepute”  (Act of July 
14, 1798, 1 Stat. 596); a statement adjudged libelous per se 
is presumed to be “ false and malicious” , as the trial court 
instructed here (R. 1952). Nor is it necessary, on the other 
hand, that there be proof of injury in fact to the official’s 
reputation. It is enough that if the criticism were believed, 
it would “ tend”  to diminish his repute with members of 
the public (Appendix B, infra, pp. 61, 53).

We submit that such a rule of liability can not be recon­
ciled with this Court’s rulings on the scope of freedom of 
the press safeguarded by the Constitution. Those rulings 
start with the assumption that one of the prime objectives 
of the First Amendment is to protect the right to criticize



14

“ all public institutions’ ’ (Bridges v. California, 314 U. S. 
252, 270). As Mr. Justice Roberts said in Cantwell v. 
Connecticut, 310 U. S. 296, 310:

“ 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 point of view, 
the pleader, as we know, at times resorts to exaggera­
tion, 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 conduct 
on the part of citizens of a democracy.”

Thus concern for the dignity and reputation of the bench 
does not sustain the punishment as a contempt 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, 328 U. S. 331, 
342, 345); there must be clear and present danger of per­
version of the course of justice. See also Craig v. Harney, 
331 U. S. 367, 370, 374-375; Wood v. Georgia, 370 U. S. 375. 
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 sup­
position that judges are “ men of fortitude, able to thrive 
in a hardy climate”  (Craig v. Harney, supra, at 376) must 
extend to commissioners as well.

The court below thought this submission answered by 
the proposition that the “ Constitution does not protect 
libelous publications” , relying on statements to that effect 
made in opinions of this Court. See Konigsberg v. State 
Bar of California, 366 IT. S. 36, 49; Times Film, Corporation



15

v. City of Chicago, 365 U. S. 13, 48; Roth v. United States, 
354 U. S. 476, 486; Beauharnais v. Illinois, 343 U. S. 250, 
266; Chaplinsky v. New Hampshire, 315 U. S. 568, 572; Near 
v. Minnesota, 283 U. S. 697, 715. The reliance surely is mis­
placed. Except for Beauharnais, the statements merely 
affirmed that the freedom of speech and press is not an 
absolute; they did not signify advance approval of whatever 
standards state courts might employ in the repression of 
expression as a libel. And Beauharnais, while it sustained 
conviction for a statement deemed to constitute a libel of 
a racial group, found by the state court to be “ liable to 
cause violence and disorder,”  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 “ discussion cannot be denied and the right, as 
well as the duty, of criticism must not be stifled.”  343 U. S. 
at 264.

Hence libel, like obscenity, contempt, advocacy of vio­
lence, disorderly conduct or any other possibly defensible 
basis for suppressing speech or publication, must be de­
fined and judged by standards which are not repugnant 
to the Constitution. The criterion employed below does 
not survive that test because it stifles criticism of official 
conduct no less potently than did seditious libel. I f there 
is room for the protection of official reputation against 
criticism of official conduct, despite the fact that “ public 
men are, as it were, public property”  (Beauharnais v. 
Illinois, supra, at 263, note 18), measures less destructive 
of the freedom of expression are available and adequate to 
serve that end. See Edgerton, J. in Sweeney v. Patterson, 
128 F. 2d 457, 458-9 (D. C. Cir. 1942), cert, denied, 317 U. S. 
678 (1942). Cf. Shelton v. Tucker, 364 U. S. 479, 488; Smith 
v. California, 361 U. S. 147, 155; Dean Milk v. City of 
Madison, 340 U. S. 349.



16

Twenty-one years ago this Court embraced the oppor­
tunity to review a decision of the Court of Appeals for the 
Second Circuit which sustained, Judge Clark dissenting, the 
sufficiency of a complaint alleging libel in a syndicated col­
umn charging a Congressman by name with anti-Semitism 
in opposing an appointment. Sweeney v. Schenectady Union 
Publishing Co. 122 F. 2d 288. One of the questions pre­
sented was whether the ruling involved an abridgment 
of the freedom of the press. An equal division in this Court 
led to affirmance of the judgment. 316 U. S. 642. The con­
siderations which favored review in Sweeney are, in our 
submission, more compellingly presented here.

Second: Assuming arguendo that the freedom of the 
press may constitutionally be subordinated to protection of 
official reputation, as it would he by the rule of law declared 
below, we contend that the rule as applied to the facts of 
this case infringes the federal rights of the petitioner. For 
nothing in the evidence establishes the type of injury or 
threat to the respondent’s reputation that might provide an 
interest to which First Amendment freedom may be made 
to yield. Cf. Konigsberg v. State Bar, 366 U. S. 36, 50, n. 11.

The publication did not name respondent or the Com­
mission 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 violators” . Neither respond­
ent’s passion to perceive in these collective generalities 
allusion to his personal identity nor the opinions of his 
witnesses provided evidence sufficient to sustain a finding 
that the statements were made “ of and concerning”  him. 
Moreover, statements which were accurate according to 
respondent’s evidence surely cannot be relied on to estab­
lish injury to his official or his private reputation. It is,



17

therefore, significant to note how far the undisputed evi­
dence showed that the statements made were false, an exer­
cise the court below cannot have deemed material, since it is 
not attempted in the court’s opinion.

We have summarized the evidence above (pp. 3-8) and 
we shall not repeat it in extenso here. It wrill suffice to 
say that if the reference to “ the police”  can validly be taken 
to refer to the respondent as Commissioner with jurisdic­
tion over that department, as he and his witnesses testified 
and the court and jury found, the whole libel rests on two 
discrepancies between the statements and the facts. Where 
the advertisement 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”  on three occasions, without ringing it on any. 
And where the advertisement said “ They have arrested 
him [Dr. King] seven times” , the fact was that he 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.

That the exaggerations or inaccuracies in these state­
ments cannot rationally be regarded 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 even makes a colorable case. The adver­
tisement was wrong in saying that the college dining hall 
was “ padlocked”  but, as the respondent testified (R. 1840), 
it was the State Education Department, with which he has 
no connection, that had jurisdiction of this matter, not the 
City Commissioners or the police. The “ Southern viola­
tors” , said to “ have answered Dr. K ing’s peaceful protests 
with intimidation and violence” , were not even read by the 
respondent to include a reference to him (R. 1849-50). No



18

more so does the statement that “ they”  bombed his home, 
assaulted him and charged him with perjury point to the 
respondent as the antecedent of the pronoun. And while 
there was disputed evidence respecting a police assault 
before respondent was elected a Commissioner (R. 1713, 
1816, 1817), there was beyond dispute a bombing of King’s 
home and he was charged with perjury. Indeed, to raise 
funds to defend him on that charge was the main purpose 
of the publication.

Since the state court’s denial of the claim that the publi­
cation was protected by the Constitution turned on the 
determination that it was defamatory as to the respondent, 
its finding on that issue must pass muster in this Court. 
There must be a sufficient basis in the evidence for the con­
clusion that the statements contained falsehood injurious 
to the respondent’s reputation and the nature of the 
injury must justify the challenged limitation of expression. 
Cf. Bridges v. California, 314 IT. S. 252, 263, 271. In passing 
on these questions this Court’s duty is not only to assure 
that constitutional protections are respected in the stand­
ards by which judgment has been rendered but also “ to 
analyze the facts in order that the appropriate enforcement 
of the federal right may be assured.”  Norris v. Alabama, 
294 U. S. 587, 590. See also, e.g., Wood v. Georgia, 370 U. S. 
375, 386; Craig v. Harney, 331 U. S. 367, 373-4; Pennekamp 
v. Florida, 328 IT. S. 331, 335; Kingsley Pictures Corp. v. 
Regents, 360 U. S. 684, 708 (concurring opinion); cf. Thomp­
son v. Louisville, 362 U. S. 199; Garner v. Louisiana, 368 
U. S'. 157.

We submit that an appraisal of this record in these 
terms leaves no room for a determination that the publica­
tion sued on by respondent made a statement as to him, or 
that, if such a statement may be found by implication, it 
injured or jeopardized his reputation in a way that forfeits



19

constitutional protection, sanctioning its punitive repres­
sion by the judgment of the courts below.

Third: The magnitude of the punishment imposed on 
the petitioner gives emphasis to the importance of the 
questions posed by this and its companion cases in the 
courts of Alabama ;* it also is, in our view, an independent 
reason why the judgment has abridged the freedom of the 
press.

As Mr. Justice Brandeis said, concurring in Whitney 
v. California, 274 U. S. 357, 377, a “ police measure may 
be unconstitutional merely because the remedy, although 
effective as means of protection, is unduly harsh or op­
pressive” . The proposition must apply with special force 
when the “ harsh”  remedy has been explicitly designed as 
a deterrent to expression. It is, indeed, the underlying 
basis of the principle that “ the power to regulate must be 
so exercised as not, in attaining a permissible end, unduly

* Libel actions based on the publication of the advertisement here 
involved, were also instituted by Governor Patterson of Alabama, 
Mayor James of Montgomery, Commissioner Parks and former Com­
missioner 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 but the Court of Appeals for 
the Fifth Circuit has held that they should be remanded. Parks and 
Patterson v. New York Times Company, 195 F. Supp. 919, rev’d, 
September 18, 1962. Another group of cases instituted by Birming­
ham officials, based on articles on racial tensions by Harrison Salis­
bury in The Times, were dismissed on jurisdictional grounds pursuant 
to the decision in New York Times Company v. Connor, 291 F. 2d 
492 but the Court of Appeals reversed the judgment on November 
16, 1962, bowing to the Alabama Supreme Court’s interpretation of 
the jurisdictional statute in the instant case and reserving constitutional 
questions for decision “ upon a full record after a trial on the merits.” 
Alabama officials have also filed libel actions against the Columbia 
Broadcasting System based on television coverage of racial conflict in 
the State. Morgan, Connor and Waggoner v. Columbia Broadcasting 
System, Inc., U.S. D.C. N.D. Ala. (So. Div.) Civil Actions No. 
10067-S, 10068-S, 10069-S; Willis and Penton v. Columbia Broad­
casting System, Inc., U.S. D.C. M.D. Ala. (No. Div.) Civil Actions 
No. 1790-N, 1791-N (pending on removal).



2 0

to infringe the protected freedom.”  Cantwell v. Connecti­
cut, 310 U. S. 296, 304, 308. See also, e.g., Grosjean v. 
American Press Co., 297 U. S. 233; N. A. A. C. P. v. Ala­
bama, 357 U. S. 449; Speiser v. Randall, 357 U. S. 513; 
Smith v. California, 361 U. S. 147; Bates v. City of Little 
Roch, 361 U. S. 516; Shelton v. Tucker, 364 U. S. 479.

We think this principle requires the reversal of this 
judgment as oppressive, even if it otherwise could be sus­
tained. Viewing the publication as an offense to respond­
ent’s reputation, there was no rational relationship be­
tween the gravity of the offense and the size of the penalty 
imposed in his behalf. The court below declined, indeed, 
to weigh the elements of truth embodied in the publication, 
treating petitioner’s assertion of belief in its substantial 
truth, so far as it might conceivably affect the respondent, 
as evidence of malice and support for the size of the award. 
Appendix B, infra, p. 77. No less important, any judg­
ment of this magnitude, imposed routinely on these facts 
and sustained no less routinely on appeal, will necessarily 
have a repressive influence which extends far beyond pre­
venting such inaccuracies of assertion as have been estab­
lished here. This is not a time when it would serve the 
values enshrined in the Constitution to force the press to 
curtail its attention to the racial tensions of the country or 
to forego dissemination of its publications in the areas 
where tension is extreme. Here, too, the law of libel must 
confront and be subordinated to the Constitution. The oc­
casion for that confrontation is at hand.

Fourth: The court below gave as a further reason fox- 
dismissing these constitutional contentions that £<[t]he 
Fourteenth Amendment is directed against State action and 
not private action” . Appendix B, infra, p. 59. This accepted 
proposition obviously has no application to this case. The 
petitioner has challenged a State rule of law applied by a



2 1

State court to render judgment carrying the full coercive 
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 sub­
ject of the Amendment’s limitations. See N. A. A. C. P. v. 
Alabama, 357 U. S. 449, 463; Barrows v. Jackson, 346 U. S. 
249, 253; Shelley v. Kraemer, 334 U. S. 1, 14.

II

In holding that 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, 
did not transcend the territorial limits of due process, im­
pose a forbidden burden upon interstate commerce or 
abridge the freedom of the press, the Supreme Court of 
Alabama has decided federal questions of substance which 
have not been and should he settled by this Court.

First: We note in limine that while the courts below 
considered and rejected the asserted federal objections to 
the jurisdiction, they also held that the petitioner had ap­
peared generally in the action and submitted to the juris­
diction of the Court. This conclusion was based upon the 
ground that, while petitioner appeared specially in moving 
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.”  Such a prayer, the courts held, converted the spe­
cial appearance into a general appearance by operation of 
the law of Alabama (R. 41-42; Appendix B, inf ra, pp. 49-52, 
80-82).

The ruling lacks that “ fair or substantial support”  in 
prior Alabama holdings which alone suffices to defeat this



22

Court’s review. N. A. A. C. P. v. Alabama, 357 U. S. 449, 
455-6. The basic principle was declared thirty years ago 
by the court below, in holding that a request for “ further 
time to answer or demur or file other motions”  did not 
constitute a general appearance waiving constitutional ob­
jections later made by a motion to quash. The question, it 
was said, is one “ of consent or a voluntary submission to 
the jurisdiction of the coui't” , an issue of “ intent as evi­
denced by conduct” , as to which “ the intent and purpose 
of the context as a whole must control” . E x -parte Cullinan, 
224 Ala. 263, 266, 267. See also Ex parte Haisten, 227 Ala. 
183, 187. Under this standard, it is plain that nothing in 
petitioner’s motion disclosed an intent to invoke a ruling 
as to any matter other than petitioner’s personal amena­
bility to Alabama’s jurisdiction in this action.

The teaching of Ex parte Cullinan has not been quali­
fied by any other holding of the court below before the 
instant case. On the contrary, a motion to quash for inade­
quate service has been joined 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 whether “ the circuit court of Talladega County had 
jurisdiction of the subject matter” . St, Mary’s Oil Engine 
Co. v. Jackson Ice & Fuel Co., 224 Ala. 152, 157. 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, and posed no obstacle to the adjudication of the 
issue as to jurisdiction of the person, raised on the special 
appearance. See also Orange Crush Grapico Bottling Co. 
v. Seven-Up Company, 128 F. Supp. 174 (N. D. Ala.) (on 
removal).

Against these indicia of Alabama law, ignored in the 
decisions of the courts below, the authorities that were



23

relied on are quite simply totally irrelevant. In Blanken­
ship v. Blankenship, 263 Ala. 297, the court specifically 
declined to consider whether the appearance had been gen­
eral or special, deeming the issue immaterial upon the ques­
tion there involved. In Thompson v. Wilson, 224 Ala. 299, 
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. The California and North Carolina cases, cited and 
quoted below (Olcese v. Justice’s Court, 156 Cal. 82; 
Roberts v. Superior Court, 30 Cal. App. 714; Dailey Motor 
Co. v. Reaves, 184 N. C. 260) and the similar decisions 
referred to in the annotation cited (25 A. L. It. 2d 838-842) 
all involved situations where the defendant’s objection 
raised “ the 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 be­
longed” . Davis v. O’Hara., 266 U. S. 314, 318. That no 
such question was presented here the motion makes entirely 
clear.

For the foregoing reasons, we submit that the court’s 
holding that petitioner made an involuntary general appear­
ance does not constitute an adequate state ground, barring 
consideration of the question whether Alabama has tran­
scended the due process limitations on the territorial exten­
sion of the process of her courts. Cf. N. A. A. C. P. v. 
Alabama, supra; Staub v. City of Baxley, 355 U. S. 313; 
Davis v. Wechsler, 263 U. S. 22; Ward v. Love County, 253 
U. S. 17.

Moreover, even if petitioner could validly be taken to 
have made a general appearance, that appearance would 
not bar the claim that in assuming jurisdiction of this action



24

the state court has cast a burden upon interstate commerce 
forbidden by the Commerce Clause. That point is inde­
pendent of the question of the defendant’s amenability to 
process, as this Court has expressly held in ruling that the 
issue remains open, if presented on “ a seasonable motion” , 
notwithstanding presence of the corporation in the State 
or its appearance generally in the cause. Davis v. Farmers 
Co-operative Co., 262 U. S. 312; Michigan Central Railroad 
Company v. Mix, 278 U. S. 492, 496. See also Denver <& 
R.G.W.R. Co. v. Terte, 284 U. S. 284, 287 (attachment); 
Canadian Pacific Ry. Co. v. Sullivan, 126 F. 2d 433, 437 (1st 
Cir.), cert. den. 316 U. S. 696 (agent designated to accept 
service); Zuber v. Pennsylvania R. Co., 82 F. Supp. 670, 
674 (N. D. Ga). For the same reason, we submit, a general 
appearance would not bar the litigation of petitioner’s con­
tention 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 peti­
tioner before the Circuit Court.

Second: The decisions of this Court do not, in our view, 
support the power of the State to render judgment in 
personam based on the service of process in this cause. 
We recognize, of course, that there has been in recent years 
a relaxation in the limitations of due process on the terri­
torial authority of the state courts. But neither what this 
Court in Hanson v. Denckla, 357 U. S. 235, 251 called the 
“ flexible standard”  of International Shoe Co. v. Washing­
ton, 326 U. S. 310, nor any of its later applications, sustains, 
in our submission, the determination here.

To begin, it is plain that the petitioner’s peripheral 
relationship to Alabama does not involve “ continuous cor­
porate operations”  which are “ so substantial and of such



25

a nature as to justify suit against it on causes of action 
arising from dealings entirely distinct from those ac­
tivities” . International Shoe Co. v. Washington, supra, 
at 318. The case bears no resemblance to Perkins v. Benguet 
Consol. Mining Co., 342 U. S. 437, where the central base 
of operations of the corporation, including its top manage­
ment, was in the state where suit was brought. Hence, if 
the jurisdiction is sustained, it must be on the ground that 
the liability asserted was 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.

No such connection has been shown. Here, as in Hanson 
v. Denckla, supra, at 252, the “ suit cannot be said 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 does not arise from the activities 
of correspondents of The Times in covering the news in 
Alabama; and such reporting surely does not rest upon a 
privilege the State confers, but on a right, importing a 
high moral duty, conferred by the Constitution of the 
Nation. Nor is this liability connected with the occasional 
solicitation of advertisements in Alabama; the advertise­
ment 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 to 
relate this action to the exercise by the petitioner of “ the 
privilege of conducting activities within”  the State. Inter­
national Shoe Co. v. Washington, supra, at 319.

We contend that this circulation was not the exercise 
of such a privilege, since it was not effected by activity of



26

the petitioner in Alabama. 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. On these facts there is, of course, a question 
whether Alabama, as a matter of the choice-of-law, may 
impose liability on the petitioner for causing or contribut­
ing to the dissemination of those papers in the State, treat­
ing it pro tanto as an Alabama “ publication” .* That 
question is, however, wholly different from the issue here 
presented: whether shipment of the papers from New York 
involved the exercise by the petitioner of any privilege to 
act in Alabama. Hanson v. Denckla {supra, at 253) is 
explicit that a State may justifiably apply its law to a 
transaction upon grounds quite insufficient to establish 
“ personal jurisdiction over a non-resident defendant” . 
See also International Shoe Co. v. Washington, supra, at 
318. It “ is essential”  for such jurisdiction “ that there 
be some act by which the defendant purposefully 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. Shipment in 
and from New York was not, in our submission, such an 
act. Nor was the judgment based, in any case, merely upon 
the 394 copies comprising the Alabama circulation of

* 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 has occurred. See, e.g., 
Hartman v. Time, Inc., 166 F. 2d 127 (3d Cir.), cert, denied 338 
U. S. 858; Insull v. New York World Tel. Corp., 273 F. 2d 166, 171 
(7th Cir.), cert, denied 362 U. S. 942; cf. Mattox v. News Syndicate 
Co., 176 F. 2d 897, 900, 904-05 (2d Cir.), cert. denied_ 334 U. S. 
838. 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).



27

The Times; the entire circulation of 650,000 was regarded 
as relevant to the verdict (R. 1720) and offered as a reason 
for sustaining the award. Appendix B, infra, pp. 75, 77.

In rejecting these arguments against the jurisdiction, 
the court below relied especially on the decision in McGee 
v. International Life Ins. Co., 355 U. S. 220, where suit on 
an insurance contract was sustained in California against 
a non-resident insurer, based on the solicitation and the con­
summation of the contract in the State by mail. The con­
tract was, however, a continuing relationship between the 
insurer and the insured within the State and one which 
the states traditionally have considered to require special 
regulation. See Hanson v. Denchla, supra, at 252; Travelers 
Health Assn. v. Virginia, 339 U. S. 643. No such continuing 
relationship gives rise to the liability asserted here; and 
newspaper publication certainly is not exceptionally subject 
to state regulation.

Moreover, even if the shipment of The Times to Alabama 
is regarded as an act of the petitioner within that State, 
we do not think the jurisdiction here affirmed can be sus­
tained. In International Shoe this Court made clear that 
the new standard there laid down was not “ simply mechan­
ical or quantitative”  and that its application “ must depend 
rather upon the quality and nature of the activity in rela­
tion to the fair and orderly administration of the laws 
which it was the purpose of the due process clause to in­
sure”  (326 U. S. at 319). See also Hanson v. Denchla, supra, 
at 253. The opinion left no doubt that, as Judge Learned 
Hand had previously pointed out (Hutchinson v. Chase & 
Gilbert, 45 F. 2d 139, 141), an “  ‘ estimate of the inconven­
iences’ which would result to the corporation from a trial 
away from its ‘ home’ or principal place of business is rele-



28

vant 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 circu­
lation 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 com­
munity with which its ties are tenuous need not be elabo­
rated. It was perspicuously noted by the court below in a 
landmark decision more than forty years ago, confining 
venue to the county where the newspaper is “ primarily 
published” . Age-Herald Publishing Co. v. Huddleston, 207 
Ala. 40, 45. This record surely makes the “ inconvenience”  
clear.

A  different question might be posed if it were shown 
that the petitioner had engaged in activities of substance 
in the forum state, designed to build its circulation there. 
Cf. Mr. Justice Black, dissenting in part in Polizzi v. Coivles 
Magazines, Inc., 345 U. S. 663, 667, 670. That would, at 
least, involve a possible analogy to other situations where 
a foreign enterprise attempts the exploitation of the forum 
as a market and the cause of action is connected with such 
effort (Hanson v. Denchla, supra, at 251-2), though there 
are differences as well as similarities that must be weighed. 
It also would confine the possibilities of litigation to those 
areas in which the publisher has had the opportunity to 
build some local standing with the public. It is enough to 
say that such activities, effort and opportunity are not 
presented here.

A  federated nation could not long endure unless the 
power of the States to exert jurisdiction over men and 
institutions not within their borders were subjected to



29

reciprocal restraints on each in the interest of all. Cf. 
Learned Hand, J. in Kilpatrick v. Texas & P. Ry. Co., 166 
F. 2d 788, 791-2 (2d Cir.). The need for those restraints 
is clear, since when state jurisdiction does obtain, the Con­
stitution obligates all other states to give full faith and 
credit to the judgment rendered, including those which may 
provide the only forum where the judgment can in practice, 
be enforced. Thus jurisdictional delineations must be based 
on grounds that command general assent throughout the 
Union; were they not, full faith and credit would become 
a burden that the system could not bear.

Whether these demands of our federalism have been 
met by this decision is, we submit, an issue of great im­
portance which calls for the judgment of this Court.

Third: In forcing petitioner to its defense in Alabama 
on this cause, the courts below have cast a burden upon 
interstate commerce which the Commerce Clause forbids.

The reasons are no different from those previously 
stated in contending that the court’s assumption of juris­
diction in personam worked a deprivation of due process. 
It takes no gift of prophecy to know that if minuscule 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 inter­
state cannot continue. So, too, if the movement of corre­
spondents inter-state provides a factor tending to sustain 
such jurisdiction, as the court below declared, a strong 
barrier to such movement has been erected. Cf. Edwards 
v. California, 314 U. S. 160. These, like other burdens upon 
commerce, must be carried only when there is fair basis 
for their imposition to protect a local interest that the State 
may validly prefer to guard. But if, as we have urged, it



30

was not “ reasonable in the context of our federal system 
of government”  to require that petitioner defend this suit 
in Alabama, it follows that fair basis for the burden upon 
commerce has not been established. That inter-state com­
munication is a form of commerce is, of course, accepted 
(see, e.g., Fisher’s Blend Station v. Tax Commission, 297 
U. S. 650, 654-5); and that state judicial jurisdiction may 
impose a forbidden burden also is entirely clear. See, e.g., 
Michigan Central Railroad Company v. Mix, 278 U. S. 492; 
Denver & R.G.W. R. Co. v. Terte, 284 U. S. 284; Erlanger 
Mills, Inc., v. Cohoes Fibre Mills, Inc., 239 F. 2d 502 (4th 
Cir.).

Fourth: We have argued that the jurisdictional deter­
mination violates the Constitution, 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. Even if we are wrong in these 
submissions, we contend that the decision on this issue calls 
for re-examination and reversal because it abridges the 
protected freedom of the press.

That state action which otherwise would be defensible 
may contravene the First Amendment as embodied in the 
Fourteenth when it has “ the collateral effect of inhibiting 
the freedom of expression” , was expressly held in Smith v. 
California, 361 U. S. 147, 151. See also pp. 19-20, supra. 
Such collateral effect on wliat is published and distributed 
throughout the Nation is plainly presented here, as we 
have previously shown.

Fifth: The decision below on the jurisdictional issue 
is in clear conflict with that of the Supreme Court of North 
Carolina in Putnam v. Triangle Publications, Inc., 245 N.C. 
432. This, in itself, is a substantial reason for review.



31

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that this petition for a writ of certiorari should be granted.

Louis M. L oeb 
H erbert W echsler 
Marvin E. F ranker 
Saul L. S herman 
R onald S. D iana

H erbert B rownell 
T homas F. D aly 

Attorneys for Petitioner 
The New York Times Company

L obd, Day & L ord 
B eddow, E mbry & Beddow 

Of Counsel



APPENDIX A



33

APPENDIX A

Constitutional and Statutory Provisions Involved

CONSTITUTION OF THE UNITED STATES
A rticle I, S ection 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 XIV

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 
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



34

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 
he 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 
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,

* 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.



35

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 
continuance of the cause as may be 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



36

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 
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.)



APPENDIX B



37

APPENDIX B 

The Decisions Below

TH E STATE OF A LABAM A— JUDICIAL DEPARTM EN T 

THE SUPREME COURT OF ALABAMA 
SPECIAL TERM , 1962

3 Div. 961

TH E N EW  Y O R K  TIM ES COM PANY, 
A  Corporation,

v.

L. B. SULLIVAN,

Appeal from Montgomery Circuit Court.

H arwood, Justice

This is an appeal from a judgment in the amount of 
$500,000.00 awarded as damages in a libel suit. The plain­
tiff below was L. B. Sullivan, a member of the Board of 
Commissioners of the City of Montgomery, where he served 
as Police Commissioner. The defendants below were The 
New York Times, a corporation, and four individuals, 
Ralph D. Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr., 
and J. E. Lowery.

Service of the complaint upon The New York Times 
was by personal service upon Dan McKee as an agent of 
the defendant, and also by publication pursuant to the 
provisions of Sec. 199(1) of Tit. 7, Code of Alabama 1940.

The Times moved to quash service upon it upon the 
grounds that McKee was not its agent, and The Times, 
a foreign corporation, was not doing business in Alabama, 
and that service under Sec. 199(1) was improper, and to 
sustain either of the services upon it would be uncon­
stitutional.



38

After hearing upon the motion to quash, the lower 
court denied such motion.

In this connection the plaintiff presented evidence 
tending to show The Times gathers news from national 
press services, from its staff correspondents, and from 
string correspondents, sometimes called “ stringers.”

The Times maintained a staff correspondent in Atlanta, 
Claude Sitton, who covered eleven southern states, includ­
ing Alabama.

During the period from 1956 through April 1960, regular 
staff correspondents of The Times spent 153 days in 
Alabama to gather news articles for submission to The 
Times. Forty-nine staff news articles so gathered were 
introduced in evidence.

Sitton himself was assigned to cover in Alabama, at 
various times, the so-called “ demonstrations,”  the hearings 
of the Civil Rights Commission in Montgomery, and pro­
ceedings in the United States District Court in Mont­
gomery. During his work in Alabama, he also conducted 
investigations and interviews in such places as Clayton and 
Union Springs. On some of his visits to Alabama, Sitton 
would stay as long as a week or ten days.

In May of 1960, he came to Alabama for the purpose of 
covering the Martin Luther King trial. After his arrival 
in Montgomery, he “ understood”  an attempt would be 
made to serve him. He contacted Mr. Roderick McLeod, Jr., 
an attorney representing The Times, and was advised to 
leave Alabama. Shortly after this he called McKee, the 
“ stringer”  in Montgomery, and talked generally about the 
King trial with him.

In addition, The Times made an active effort to keep a 
resident “ stringer”  in Montgomery at all times, and as a 
matter of policy wanted to have three “ stringers”  in Ala­
bama at all times.

The work of “ stringers”  was outlined by Sitton as 
follows: “ When The Times feels there is a news story of 
note going on in an area where a particular stringer lives, 
* * * rp̂ e qqmeg eaps on a stringer for a story.”



39

“ Stringers”  fill out blank cards required by The Times, 
which refer to them as “ our correspondents.”  Detailed 
instructions are also given to “ stringers”  by The Times.

“ Stringers”  also on occasions initiate stories to The 
Times by telephone recordation. If these stories were not 
accepted, The Times pays the telephone tolls.

A “ stringer”  is usually employed by another news­
paper, or news agency and is called upon for stories occa­
sionally, or offers stories upon his own. A  “ stringer” is paid 
at about the rate of a penny a word. No deductions are 
made from these payments for such things as income tax, 
social security, insurance contributions, etc., and “ stringers” 
are not carried on the payroll of The Times. Up to July 
26 for the year 1960, The Times had paid Chadwick, the 
“ stringer” in Birmingham, $135.00 for stories accepted, and 
paid McKee $90.00.

It further appears that upon receipt of a letter from the 
plaintiff Sullivan demanding a retraction and apology for 
the statements appearing in the advertisement, which is 
the basis of this suit, the general counsel of The Times in 
New York requested the Assistant Managing Editor of The 
Times to have an investigation made of the correctness of 
the facts set forth in the advertisement in question. The 
Times thereupon communicated with McKee and asked for 
a report. After his investigation, McKee sent a lengthy 
wire to The Times setting forth facts which demonstrated 
with clarity the utter falsity of the allegations contained 
in the advertisement. McKee was also paid $25.00 by The 
Times for help given Harrison Salisbury, a staff corre­
spondent of The Times when he was in Alabama on an 
assignment in the spring of 1960.

The Times also has a news service and sells to other 
papers stories sent it by its staff correspondents, “ string­
ers,”  and local reporters. In this connection the lower 
court observed:

“ Obviously, The Times considered the news gather­
ing activities of these staff correspondents and ‘ string­
ers ’ a valuable and unique complement to the news



40

gathering facilities of the Associated Press and other 
wire services of which The Times is a member. The 
stories of the ‘ stringers’ appear under the ‘ slug’ 
‘ Special to The New York Times,’ and there were 59 
such ‘ specials’ in the period from January 1, 1956, 
through April of 1960.”

ADVERTISING

About three quarters of the revenue of The Times 
comes from advertisements. In 1956, The New York Times 
Sales, Inc., was set up. This is a wholly owned subsidiary 
of The Times and its sole function is to solicit advertising 
for The Times only.

All of the officials of “ Sales”  are also officials of The 
Times.

Two solicitors for “ Sales,”  as well as two employees of 
The Times have at various times come into Alabama seek­
ing advertising for The Times. Between July 1959 and 
June 3, 1960, one representative spent over a week in this 
State, another spent a week and a third spent three days. 
Advertising business was solicited in Birmingham, Mont­
gomery, Mobile, and Selma. Between January 1, 1960 and 
May 1960, inclusive, approximately seventeen to eighteen 
thousand dollars worth of advertising was thus sold in 
Alabama, while in the period of 1956 through April 1960, 
revenues of $26,801.64 were realized by The Times from 
Alabama advertisers.

CIRCULATION

The Times sends about 390 daily, and 2,500 Sunday 
editions into Alabama.

Shipments are made by mail, rail, and air, with trans­
portation charges being prepaid by The Times. Dealers 
are charged for the papers.

Credit is given for unsold papers and any loss in transit 
is paid by The Times.

Claims for losses are handled by baggagemen in Ala­
bama, and The Times furnishes claim cards to dealers who



f

bring them to the baggagemen, The Times paying for losses 
or incomplete copies upon substantiation by the local Ala­
bama baggagemen.

Account cards of various Alabama Times dealers show 
that credit was thus given for unsold merchandise.

We are here confronted with the question of in per­
sonam jurisdiction acquired by service upon an alleged 
representative of a foreign corporation.

The severe limitations of the doctrine of Bank of Au­
gustas. Earle (1839) 13 Pet. (U. S.) 519, that a corporation 
“ must dwell in the place of its creation, and cannot migrate 
to another sovereignty,”  proving unsatisfactory, the 
courts, by resort to fictions of “ presence,”  “ consent,”  
and “ doing business,”  attempted to find answers compat­
ible with social and economic needs. Until comparatively 
recent years these bases of jurisdictions have tended only 
to confuse rather than clarify, leading the late Judge 
Learned Hand to remark that it was impossible to deter­
mine any established rule, but that “ we must step from 
tuft to tuft across the morass.”  Hutchinson v. Chase and 
Gilbert, (2nd Cir.) 45 F. 2d 139.

In Pennoyer v. Neff, 95 U. S. 714, the court held that the 
Fourteenth Amendment to the Federal Constitution 
required a relationship between the State and the person 
upon whom the State seeks to exercise personal jurisdic­
tion, and there must be a reasonable notification to the 
person upon whom the State seeks to exercise its jurisdic­
tion. The required relationship between the State and the 
person was held to be presence within the State, and as a 
corollary, no state could “ extend its process beyond that 
territory so as to subject either persons or property to its 
decisions.”

In Hess v. Parrloski, 274 U. S. 352 (1927), the United 
States Supreme Court sustained the validity of a non­
resident motorist statute which provided that the mere act 
of driving an automobile in a state should be deemed an 
appointment of a named state official as agent to receive 
service in a suit arising out of the operation of the motor

41



42

vehicle on the highway of such State. The dangerous 
nature of a motor vehicle was deemed to justify the statute 
as a reasonable exercise of police power to preserve the 
safety of the citizens of the state, and the consent for serv­
ice exacted by the State for use of its highways was 
reasonable.

In 1935 the same reasoning was applied in upholding a 
state statute permitting service on an agent of a non­
resident individual engaged in the sale of corporate securi­
ties in the state in claims arising out of such business. 
Henry L. Doherty and Co. v. Goodman, 294 U. S. 623.

Corporations being mere legal entities and incapable 
of having physical presence as such in a foreign state, and 
its agents being limited by the scope of their employment, 
neither the “ presence”  theory nor the “ consent”  theory 
could satisfactorily be applied as a basis for personal juris­
diction.

As to personal jurisdiction over non-resident corpora­
tions, the rule therefore evolved that such jurisdiction 
could be based upon the act of such corporations “ doing- 
business”  in a state, though echoes of the “ presence”  and 
“ consent”  doctrines may be found in some decisions pur­
portedly applying the “ doing business”  doctrine in suits 
against foreign corporations. See Green v. Chicago Bur­
lington and Quincy By., 205 U. S. 530, when “ presence”  of 
a corporation was found to exist from business done in a 
state, and Old Wayne Mutual Life A ss ’n. of Indianapolis v. 
McDonough, 204 U. S. 8, where implied consent to jurisdic­
tion was said to arise from business done in the state of 
the forum.

The term “ doing business”  carries no inherent ci*i- 
teria. It is a concept dependent upon each court’s reaction 
to facts. These reactions were varied, and the conflicting 
decisions evoked the observation of Judge Learned Hand, 
then fully justified, but no longer apt since the “ morass”  
has been considerably firmed up by subsequent decisions 
of the United States Supreme Court.



43

In International Shoe Co. v. State of Washington, et al., 
326 U. S. 310, the old bases of personal jurisdiction were 
recast, the court saying:

“ To say that the corporation is so far ‘ present’ 
there as to satisfy due process requirements . . .  is to 
beg the question to be decided. For the terms ‘ pres­
ent’ or ‘ presence’ are used merely to symbolize those 
activities of the corporation’s agent within the state 
which courts will deem to be sufficient to satisfy the 
demands of due process . . . Those demands may be 
met by such contacts of the corporation with the state 
of the forum as make it reasonable, in the context of 
our federal system of government, to require the cor­
poration to defend the particular suit which is brought 
there. An ‘ estimate of the inconveniences’ which 
would result to the corporation from a trial away from 
its ‘ home’ or principal place of business is relevant 
in this connection.”

That the new test enunciated is dependent upon the 
degree of contacts and activities exercised in the forum 
state is made clear, the court saying:

“ . . . due process requires only that in order to 
subject a defendant to a judgment in personam, if he 
be not present within the territory of the forum, he 
have certain minimum contacts with it such that the 
maintenance of the suit does not offend ‘ traditional 
notions of fair play and substantial justice.’ ”

In accord with the above doctrine is our case of Boyd v. 
Warren Paint and Color Co., 254 Ala. 687, 49 So. 2d 559.

In 1957 the United States Supreme Court handed down 
its opinion in McGee v. International Life Insurance Co., 
355 U. S. 220. This case involved the validity of a Cali­
fornia judgment rendered in a proceeding where service 
was had upon the defendant company by registered mail 
addressed to the respondent at its principal place of busi­
ness in Texas. A  California statute subjecting foreign 
corporations to suit in California on insurance contracts 
with California residents even though such corporations 
could not be served with process within its borders.



44

The facts show that petitioner’s son, a resident of 
California, bought a life insurance policy from an Arizona 
coi’poration, naming petitioner as beneficiary. Later, 
respondent, a Texas corporation, agreed to assume the 
insurance obligations of the Arizona company, and mailed 
a re-insurance certificate to the son in California, offering 
to insure him in accordance with his policy. He accepted 
the offer and paid premiums by mail from California to 
the company’s office in Texas. Neither corporation ever 
had any office in California, nor any agent therein, nor had 
solicited or done any other business in that state. Petitioner 
sent proofs of her son’s death to respondent, but it refused 
to pay the claim.

The Texas court refused to enforce the California judg­
ment holding it void under the Fourteenth Amendment 
because of lack of valid service. McGee v. International 
Life Insurance Company, 288 S. W. 2d 579.

In reversing the Texas court, the United States Supreme 
Court wrote:

“ Since Pennoyer v. Neff, 95 U. S. 714, this Court 
has held that the Due Process Clause of the Fourteenth 
Amendment places some limit on the power of state 
courts to enter binding judgments against persons not 
served with process within their boundaries. But just 
where this line of limitation falls has been the subject 
of prolific controversy, particularly with respect to 
foreign corporations. In a continuing process of evolu­
tion this Court accepted and then abandoned ‘ consent,’ 
‘ doing business,’ and ‘ presence’ as the standard for 
measuring the extent of state judicial power over such 
corporations. See Henderson, The Position of Foreign 
Corporations in American Constitutional Law, c. Y. 
More recently in International Shoe Co. v. Washing­
ton, 326 U. S. 310, the Court decided that ‘ due process 
requires only that in order to subject a defendant to 
a judgment in personam, if he he not present within 
the territory of the forum, he have certain minimum 
contacts with it such that the maintenance of the suit 
does not offend ‘ traditional notions of fair play and 
substantial justice.’ Id., at 316.



45

“ Looking back over this long history of litigation 
a trend is clearly discernible toward expanding the 
permissible scope of state jurisdiction over foreign 
corporations and other nonresidents. In part this is 
attributable to the fundamental transformation of our 
national economy over the years. Today many com­
mercial transactions touch two or more States and may 
involve parties separated by the full continent. With 
this increasing nationalization of commerce has come a 
great increase in the amount of business conducted by 
mail across state lines. At the same time modern 
transportation and communication have made it much 
less burdensome for a party sued to defend himself 
in a State where he engages in economic activity.”

Under the above and more recent doctrines, we are clear 
to the conclusion that the activities of The New York Times, 
as heretofore set out, are a m p ly  sufficient to more than meet 
the minimal standards required for service upon its repre­
sentative McKee.

The adjective “ string”  in McKee’s designation is redun­
dant, and in no wise lessens his status as a correspondent 
and agent of The New York Times in Alabama. Justice 
demands that Alabama be permitted to protect its citizens 
from tortious libels, the effects of such libels certainly 
occurring to a substantial degree in this State.

SUBSTITUTED SERVICE

By Act No. 282, approved 5 August 1953 (Acts of Ala­
bama, Keg. Sess. 1953, page 347) amending a prior Act of 
1949, it was provided that any non-resident person, firm, 
partnership or corporation, not qualified to do business in 
this State, who shall do any business or perform any char­
acter of work or service in this State shall by so doing, 
be deemed to have appointed the Secretary of State to be 
his lawful attorney or agent of such non-resident, upon 
whom process may be served in any action accruing from 
the acts in this State, or incident thereto, by any non-resi­
dent, or his or its agent, servant or employee.



46

The act further provides that service of process may be 
made by service of three copies of the process on the Secre­
tary of State, and such service shall be sufficient service 
upon the non-resident, provided that notice of such service 
and a copy of the process are forthwith sent by registered 
mail by the Secretary of State to the defendant, at his last 
known address, which shall be stated in the affidavit of the 
plaintiff, said matter so mailed shall be marked “Deliver to 
Addressee Only” and “ Return Receipt Requested,” and pro­
vided further that such return receipt shall be received by 
the Secretary of State purporting to have been signed by 
the said non-resident.

It is further provided in the Act that any party desiring 
to obtain service under the Act shall make and file in the 
cause an affidavit stating facts showing that this Act is 
applicable.

A  mere reading of the above Act demonstrates the suf­
ficiency of the provisions for notice to the non-resident 
defendant, and that service under the provisions of the Act 
fully meet the requirements of due process.

Counsel for appellant argues however that the service 
attempted under Act 282, supra, is defective in two aspects. 
First, that the affidavit accompanying the complaint is con­
clusionary and does not show facts bringing the Act into 
operation, and second, that the Act complained of did not 
accrue from acts done in Alabama.

The affidavit filed by the plaintiff avers that the de­
fendant “ * * * has actually done and is doing business or 
performing work or services in the State of Alabama; that 
this cause of action has arisen out of the doing of such 
business or as an incident thereof by said defendant in the 
State of Alabama.”

The affidavit does state facts essential to the invocation 
of Act 282, supra. We do not think the legislative purpose 
in requiring the affidavit was to require a detailed quo modo 
of the business done, but rather was to furnish the Secre­
tary of State with information sufficient upon which to 
perform the duties imposed upon that official. The ultimate 
determination of whether the non-resident has done busi­



47

ness or performed work or services in this State, and 
whether the cause of action accrues from such acts, is judi­
cial, and not ministerial, as demonstrated hy appellant’s 
motion to quash.

As to appellant’s second contention that the cause did 
not accrue from any acts of The Times in Alabama, it is our 
conclusion that this contention is without merit.

Equally applicable to newspaper publishing are the 
observations made in Consolidated Cosmetics v. D-A Pub. 
Co., Inc., et al., 186 F. 2d 906 at 908, relative to the functions 
of a magazine publishing company:

“ The functions of a magazine publishing company, 
obviously, include gathering material to be printed, 
obtaining advertisers and subscribers, printing, selling 
and delivering the magazines for sale. Each of these, 
we think, constitutes an essential factor of the maga­
zine publication business. Consequently if a non-resi­
dent corporation sees fit to perform any one of those 
essential functions in a given jurisdiction, it necessarily 
follows that it is conducting its activities in such a 
manner as to be subject to jurisdiction.”

It is clear under our decisions that when a non-resident 
prints a libel beyond the boundaries of the State, and distrib­
utes and publishes the libel in Alabama, a cause of action 
arises in Alabama, as well as in the State of the printing or 
publishing of the libel. Johnson Publishing Co. v. Davis, 

Ala. 474, 124 So. 2d 441; Weir v. Brotherhood of Rail­
road Trainmen, 221 Ala. 494, 129 So. 267; Bridwell v. 
Brotherhood of Railroad Trainmen, 227 Ala. 443, 150 So. 
338; Collins v. Brotherhood of Railroad Trainmen, 226 Ala. 
659,148 So. 133.

The scope of substituted service is as broad as the per­
missible limits of due process. Boyd v. Warren Paint & 
Color Co., 254 Ala. 687, 49 So. 2d 559; Ex parte Emerson, 
270 Ala. 697, 121 So. 2d 914.

The evidence shows that The Times sent its papers into 
Alabama with its carrier as its agent, freight prepaid, with 
title passing on delivery to the consignee. See Tit. 57, Sec.



48

25, Code of Alabama 1940; 2 Williston on Sales, Sec. 279(b), 
p. 90. Thence the issue went to newsstands for sale to the 
public in Alabama, in accordance with a long standing busi­
ness practice.

The Times or its wholly owned advertising subsidiary, 
on several occasions, had agents in Alabama for substantial 
periods of time soliciting, and procuring in substantial 
amounts advertising to appear in The Times.

Furthermore, upon the receipt of the letter from the 
plaintiff demanding a retraction of the matter appearing in 
the advertisement, The Times had its string correspondent 
in Montgomery, Mr. McKee, investigate the truthfulness of 
the assertions in the advertisement. The fact that McKee 
was not devoting his full time to the service of The Times 
is “ without constitutional significance.”  Scripto Inc. v. 
Carson, Sheriff, et al., 362 U. S. 207.

In WSAZ, Inc. v. Lyons, 254 F. 2d 242 (6th Cir.), the 
defendant television corporation was located in West Vir­
ginia. Its broadcasts covered several counties in Kentucky, 
and the defendant contracted for advertising in the Ken­
tucky counties, all contracts for such advertising being sent 
to the corporation in West Virginia for acceptance.

The alleged libel sued upon occurred during a news 
broadcast.

Service was obtained by serving the Kentucky Secretary 
of State under the provisions of a Kentucky statute pro­
viding for such service upon a foreign corporation doing 
business in Kentucky where the action arose out of or was 
“ connected”  with the business done by such corporation in 
Kentucky.

In sustaining the judgment awarded the plaintiff, the 
court wrote in connection with the validity of the service to 
support the judgment:

“ All that is necessary here is that the cause of 
action asserted shall be ‘ connected’ with the business 
done. Defendant asserts that the alleged libel has no 
connection with its business done in Kentucky. But in 
view of its admission that its usual business was the



49

business of telecasting and that this included news pro­
grams, and in view of the undisputed fact that the 
alleged libel was part of news programs regularly- 
broadcast by defendant, this contention has no merit.

“ The question of due process would seem to be 
settled by the case of McGee v. International Life In­
surance Co. (citation), as well as by International Shoe 
Co. v. State of Washington, supra. While defendant 
was not present in the territory of the forum, it cer­
tainly had substantial contacts with it. It sought and 
executed contracts for the sale of advertising service 
to be performed and actually performed by its own act 
within the territory o f the forum. We conclude that 
the maintenance of the suit does not offend ‘ traditional 
notions of fair play and substantial justice’.”

In the present case the evidence shows that the publish­
ing of advertisements was a substantial part of the business 
of The Times, and its newspapers were regularly sent into 
Alabama. Advertising was solicited in Alabama. Its cor­
respondent McKee was called upon by The Times to investi­
gate the truthfulness or falsity of the matters contained in 
the advertisement after the letter from the plaintiff. The 
acts therefore disclose not only certain general conditions 
with reference to newspaper publishing, but also specific 
acts directly connected with, and directly incident to the 
business of The Times done in Alabama.

The service acquired under the provisions of Act No. 
282, supra, was valid.

GENERAL APPEARANCE BY THE TIMES

The trial court also found that The Times, by including 
as a ground of the prayer in its motion to quash, the follow­
ing, “ * * * that this court dismiss this action as to The 
New York Times Company, A  Corporation, for lack of 
jurisdiction of the subject matter of said action * * * ”  
did thereby go beyond the question of jurisdiction over the 
corporate person of The Times, and made a general appear­
ance, thereby waiving any defects in service of process, and



50

thus submitted its corporate person to the jurisdiction of 
the court.

The conclusions of the trial court in this aspect are in 
accord with the doctrines of a majority of our sister states, 
and the doctrines of our own decisions.

Pleadings based upon lack of jurisdiction of the person 
are in their nature pleas in abatement, and find no special 
favor in the law. They are purely dilatory and amount to 
no more than a declaration by a defendant that he is in 
court in a proper action, after actual notice, but because 
of a defect in service, he is not legally before the court. 
See Olcese v. Justice’s Court, 156 Cal. 82, 103 P. 317.

In Roberts v. Superior Court, 30 Cal. App. 714, 159 P. 
465, the court observed:

‘ ‘ The motion to dismiss the complaint on the ground 
that the court was without jurisdiction of the subject- 
matter of the action amounted, substantially or in legal 
effect, to a demurrer to the complaint on that ground. 
At all events, a motion to dismiss on the ground of 
want of jurisdiction of the subject-matter of the action 
necessarily calls for relief which may be demanded 
only by a party to the record. It has been uniformly 
so held, as logically it could not otherwise be held, and, 
furthermore, that where a party appears and asks for 
such relief, although expressly characterizing his 
appearance as special and for the special purpose of 
objecting to the jurisdiction of the court over his per­
son, he as effectually submits himself to the jurisdic­
tion of the court as though he had legally been served 
with process.”

The reason dieting such conclusion is stated by the 
Supreme Court of North Carolina, in Dailey Motor Co. v. 
Reaves, 184 N. C., 260, 114 S. E. 175, to be:'

“ Any course that, in substance, is the equivalent of 
an effort by the defendants to try the matter and 
obtain a judgment on the merits, in any material aspect 
of the case, while standing just outside the threshold 
of the court, cannot be permitted to avail them. A 
party will not be allowed to occupy so ambiguous a



51

position. He cannot deny tlie authority of the court 
to take cognizance of his action for want of jurisdiction 
of the person or proceeding, and at the same time seek 
a judgment in his favor on the ground that there is no 
jurisdiction of the cause of action.

* * # * *
“ We might cite cases and authorities indefinitely 

to the same purpose and effect, but those to which we 
have briefly referred will suffice to show how firmly and 
unquestionably it is established, that it is not only 
dangerous, but fatal to couple with a demurrer, or 
other form of objection based on the ground that the 
court does not have jurisdiction of the person, an 
objection in the form of a demurrer, answer, or other­
wise, which substantially pleads to the merits, and, as 
we have seen, such an objection is presented when the 
defendant unites with his demurrer for lack of juris­
diction of the person a cause of demurrer for want of 
jurisdiction of the cause or subject of the action, and 
that is exactly what was done in this case. ’ ’

We will not excerpt further from the decisions from 
other jurisdictions in accord with the doctrine of the above 
cases, but point out that innumerable authorities from a 
large number of states may be found set forth in an anno­
tation to be found in 25 A. L. R. 2d, pages 838 through 842.

In Thompson v. Wilson, 224 Ala. 299, 140 So. 439, this 
court stated:

“ If there was a general appearance made in this 
case, the lower court had jurisdiction of the person 
of the appellant. (Authorities cited.)

“ The filing of a demurrer, unless based solely on 
the ground of lack of jurisdiction of the person, con­
stitutes a general appearance.”

Again, in Blankenship v. Blankenship, 263 Ala. 297, 82 
So. 2d 335, the court reiterated the above doctrine.

Thus the doctrine of our cases is in accord with that of 
a majority of our sister states that despite an allegation in 
a special appearance that it is for the sole purpose of ques­



52

tioning the jurisdiction of the court, if matters going be­
yond the question of jurisdiction of the person are set forth, 
then the appearance is deemed general, and defects in the 
service are to be deemed waived.

We deem the lower court’s conclusions correct, that The 
Times, by questioning the jurisdiction of the lower court 
over the subject matter of this suit, made a general appear­
ance, and thereby submitted itself to the jurisdiction of 
the lower court.

Appellant’s assignment No. 9 is to the effect that the 
lower court erred in overruling defendant’s demurrers as 
last amended to plaintiff’s complaint.

The defendant’s demurrers contain a large number of 
grounds, and the argument of the appellant is directed 
toward the propositions that:

1. As a matter of law, the advertisement was not 
published of and concerning the plaintiff, as appears 
in the face of the complaint.

2. The publication was not libelous per se.
3. The complaint was defective in failing to allege 

special damages.
4. The complaint was defective in failing to allege 

facts or innuendo showing how plaintiff claimed the 
article had defamed him.

5. The complaint was bad because it stated two 
causes of action.

Both counts of the complaint aver among other things 
that “  # * * defendants falsely and maliciously published in 
the City of New York, State of New York, and in the City 
of Montgomery, Alabama, and throughout the State of 
Alabama, of and concerning the plaintiff, in a paper entitled 
The New York Times, in the issue of March 29, 1960, on 
page 25, in an advertisement entitled ‘ Heed Their Rising 
Voices’ (a copy of said advertisement being attached hereto 
and made a part hereof as Exhibit ‘A ’ ), false and defama­
tory matter or charges reflecting upon the conduct of the 
plaintiff as a member of the Board of Commissioners of the



53

City of Montgomery, Alabama, and imputing improper con­
duct to him, and subjecting him to public contempt, ridicule 
and shame, and prejudicing the plaintiff in his office, profes­
sion, trade or business, with an intent to defame the plain­
tiff, and particularly the following false and defamatory 
matter contained therein:

‘ In Montgomery, Alabama, after students sang 
“ My Country ’Tis of Thee”  on the State Capitol steps, 
their leaders were expelled from school, and truck- 
loads of police armed with shotguns 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.

*  #  #  # #

•Again and again the Southern violators have an­
swered Dr. K ing’s peaceful protests with intimidation 
and violence. They have bombed his home almost kill­
ing 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' ”

Where the words published tend to injure a person 
libeled by them in his reputation, profession, trade or busi­
ness, or charge him with an indictable offense, or tends to 
bring the individual into public contempt are libelous per 
se. White v. Birmingham Post Co., 233 Ala. 547, 172 So. 
649; Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 So. 332.

Further, “ the publication is not to be measured by its 
effects when subjected to the critical analysis of a trained 
legal mind, but must be construed and determined by its 
natural and probable effect upon the mind of the average 
reader.”  White v. Birmingham Post Co., supra.

We hold that the matter complained of is, under the 
above doctrine, libelous per se, if it was published of and 
concerning the plaintiff.



54

In “ Dangerous Words—A  Guide to the Law of Libel,”  
by Philip Wittenberg, we find the following observations, 
at pages 227 and 228:

“ There are groupings which may be finite enough 
so that a description of the body is a description of the 
members. Here the problem is merely one of evalua­
tion. Is the description of the member implicit in the 
description of the body, or is there a possibility that 
a description of the body may consist of a variety of 
persons, those included within the charge, and those 
excluded from it?

# # # # #
“ The groupings in society today are innumerable 

and varied. Chances of recovery for libel of the mem­
bers of such groups diminish with increasing size, and 
increase as the class or group decreases. Whenever 
a class decreases so that the individuals become ob­
vious, they may recover for a libel descriptive of the 
group. In cases where the group is such that it is 
definite in number; where its composition is easily 
recognizable and the forms of its organization are 
apparent, then recognition of individuals libeled by 
group defamation becomes clear.”

The same principle is aptly stated in Gross v. Cantor, 
270 N. Y. 93, as follows:

“ An action for defamation lies only in case the de­
fendant has published the matter ‘ of and concerning 
the plaintiff. ’ . . . Consequently an impersonal reproach 
of an indeterminate class is not actionable. . . . ‘ But if 
the words may by any reasonable application, import 
a charge against several individuals, under some gen­
eral description or general name, the plaintiff has the 
right to go on to trial, and it is for the jury to decide 
whether the charge has the personal application averred 
by the plaintiff. ’

“ We cannot go beyond the face of this complaint. 
It does not there appear that the publication was so 
scattered a generality or described so large a class as 
such that no one could have been personally injured



00

by it. Perhaps the plaintiff will be able to satisfy a 
jury of the reality of his position that the article was 
directed at him as an individual and did not miss the 
mark. ’ ’

And in Wofford v. Meeks, 129 Ala. 349, 30 So. 625, we 
find this court saying:

“ Mr. Freeman, in his note to case of Jones v. The 
State, 70 Am. St. Rep. 756, after reviewing the cases, 
says: ‘ We apprehend the true rule is that, although the 
libelous publication is directed against a particular 
class of persons or a group, yet any one of that class 
or group may maintain an action upon showing that 
the words apply especially to him.’ And, further, he 
cites the cases approvingly which hold that each of 
the persons composing the class may maintain the ac­
tion. We think this the correct doctrine, and it is cer­
tainly supported by the great weight of authority.— 
13 Am. & Eng. Ency. Law, 392 and note 1; Hardy v. 
Williamson, 86 Gfa. 551; s. c. 22 Am. St. Rep. 479.”

We judicially know that the City of Montgomery oper­
ates under a commission form of government. (See Act 20, 
Gen. Acts of Alabama 1931, page 30.) We further judicially 
know that under the provisions of Sec. 51, Tit. 37, Code of 
Alabama 1940, that under this form of municipal govern­
ment the executive and administrative powers are dis­
tributed into departments of (1) public health and public 
safety, (2) streets, parks and public property and improve­
ments, and, (3) accounts, finances, and public affairs; and 
that the assignments of the commissioners may be changed 
at any time by a majority of the board.

The appellant contends that the word “ police”  encom­
passes too broad a group to permit the conclusion that the 
statement in the advertisement was of and concerning the 
plaintiff since he was not mentioned by name.

We think it common knowledge that the average person 
knows that municipal agents, such as police and firemen, 
and others, are under the control and direction of the city 
governing body, and more particularly under the direction



56

and control of a single commissioner. In measuring the 
performance or deficiencies of such groups, praise or criti­
cism is usually attached to the official in complete control 
of the body. Such common knowledge and belief has its 
origin in established legal patterns as illustrated by Sec. 
51, supra.

In De Hoyos v. Thornton, 259 N. Y. App. Div. 1, a resi­
dent of Monticello, New York, a town of 4,000 population, 
had published in a local newspaper an article in which she 
stated that a proposed acquisition of certain property by the 
municipality was “ another scheme to bleed the taxpayers 
and force more families to lose their homes. * * * It seems 
to me it might be better to relieve the tension on the tax­
payers right now and get ready for the golden age * * * and 
not he dictated to by gangsters and Chambers of Com­
merce.”

The mayor and the three trustees of Monticello brought 
libel actions. The court originally considering the com­
plaint dismissed the actions on the grounds that the plain­
tiffs were not mentioned in the article, and their connection 
with the municipality was not stated in the complaint. In 
reversing this decision the Appellate Division of the Su­
preme Court wrote: “ There is no room for doubt as to 
who were the targets of her attack. Their identity is as 
clear to local readers from the article as if they were men­
tioned by name.”

The court did not err in overruling the demurrer in the 
aspect that the libelous matter was not of and concerning 
the plaintiffs.

The advertisement being libelous per se, it was not 
necessary to allege special damages in the complaint. Iron 
Age Pub. Co. v. Crudup, 85 Ala. 519, 5 So. 332.

Where, as in this case, the matter published is libelous 
per se, then the complaint may be very simple and brief 
(Penry v. Dozier, 161 Ala. 292, 49 So. 909), and there is no 
need to set forth innuendo. White v. Birmingham Post Co., 
233 Ala. 547, 172 So. 649. Further, a complaint in all 
respects similar to the present was considered sufficient in



57

our recent case of Johnson Publishing Co. v. Davis, 271 Ala. 
474,124 So. 2d 441.

The Johnson case, supra, is also to the effect that where 
a newspaper publishes a libel in New York, and by distri­
bution of the paper further publishes the libel in Alabama, 
a cause of action arises in Alabama, as well as in New York, 
and that the doctrine of Age-Herald Pub. Co. v. Huddleston, 
207 Ala. 40, 92 So. 193, concerned venue, and venue statutes 
do not apply to a foreign corporation not qualified to do 
business in Alabama.

In view of the principles above set forth, we hold that 
the lower court did not err in overruling the demurrer to 
the complaint in the aspects contended for and argued in 
appellant’s brief.

Assignments of error Nos. 14, 15, 16 and 17, relate to 
the court ’s refusal to permit certain questions to be put to 
the venire in qualifying the jurors.

The appellant contends that The Times was unlawfully 
deprived of its right to question the jury venire to ascer­
tain the existence of bias or prejudice. The trial court 
refused to allow four questions which were in effect, (1) 
Do you have any conviction, opinion or pre-disposition 
which would compel you to render a verdict against The 
Times? (2) Have any of you been plaintiffs in litigation in 
this court? (3) If there is no evidence of malice, would you 
refuse to punish The Times? (4) Is there any reason 
which would cause you to hesitate to return a verdict in 
favor of The Times?

The prospective jurors had already indicated that they 
were unacquainted with any of the facts in the case, that 
they had not discussed the case with anyone nor had it been 
discussed in their presence nor were they familiar in any 
manner with the contentions of the parties. Appellant was 
permitted to propound at some length other questions de­
signed to determine whether there was any opinion or pre­
disposition which would influence the juror’s judgment. 
The jurors indicated that there was no reason whatsoever 
which would cause them to hesitate to return a verdict for 
The Times.



58

Sec. 52, Tit. 30 Code of Alabama 1940, gives the parties 
a broad right to interrogate jurors as to interest or bias. 
This right is limited by propriety and pertinence. It is 
exercised within the sound discretion of the trial court. We 
cannot say that this discretion has been abused where 
similar questions have already been answered by the pro­
spective jurors. Dyer v. State, 241 Ala. 679, 4 So. 2d 311.

Only the second question could have conceivably re­
vealed anything which was not already brought out by 
appellant’s interrogation of the prospective jurors. Con­
sidering the completeness of the qualification and the re­
moteness of the second question, the exclusion of that 
inquiry by the trial court will not be regarded as an abuse 
of discretion. Noah v. State, 38 Ala. App. 531, 89 So. 2d 
231.

Appellant contends that without the right to adequately 
question the prospective jurors, a defendant cannot ade­
quately ensure that his case is being tried before a jury 
which meets the federal constitutional standards laid down 
in such decisions as Irvin v. Doivd, 366 U. S. 717. It is 
sufficient to say that the jurors who tried this case were 
asked repeatedly, and in various forms, by counsel for 
The Times about their impartiality in every reasonable 
manner.

Appellant’s assignment of error 306 pertains to the 
refusal of requested charge T. 22, which was affirmative in 
nature.

It is appellant’s contention that refusal of said charge 
contravenes Amendment One of the United States Constitu­
tion and results in an improper restraint of freedom of the 
press, and further, that refusal of said charge is violative 
of the Fourteenth Amendment of the federal constitution.

In argument in support of this assignment, counsel for 
appellant asserts that the advertisement was only an appeal 
for support of King and “ thousands of Southern Negro 
students”  said to be “ engaged in widespread non-violent 
demonstrations in positive affirmation of the right to live 
in human dignity as guaranteed by the U. S. Constitution 
and the Bill of Rights.”



59

The fallacy of such argument is that it overlooks the 
libelous portions of the advertisement which are the very 
crux of this suit.

The First Amendment of the U. S. Constitution does 
not protect libelous publications. Near v. Minnesota, 283 
U. S. 697; Konigsberg v. State Bar of California, 366 U. S. 
36; Times Film Corporation v. City of Chicago, 365 U. S. 43 ; 
Chaplinsky v. New Hampshire, 315 U. S'. 568; Beauharnais 
v. Illinois, 343 U. S. 250.

The Fourteenth Amendment is directed against State 
action and not private action. Collins v. Hardyman, 341 
U. S. 651.

Assignment of error No. 306 is without merit.
Appellant’s assignment of error No. 94 also pertains to 

the court’s refusal of its requested charge T. 22.
Appellant’s argument under this assignment asserts it 

was entitled to have charge T. 22 given because of the plain­
tiff’s failure to plead or prove special damages.

In libel action, where the words are actionable per se, 
the complaint need not specify damages (Johnson v. Robert­
son, 8 Port. 486), nor is proof of pecuniary injury required, 
such injury being implied. Johnson Publishing Co. v. Davis, 
supra.

Assignments 18, 19, 21, 23, 25, 27, 30, and 32, relate to 
the action of the court in overruling defendant’s objections 
to questions propounded to six witnesses presented by the 
plaintiff as to whether they associated the statements in the 
advertisement with the plaintiff. All of the witnesses 
answered such questions in such manner as to indicate that 
they did so associate the advertisement.

Without such evidence the plaintiff’s cause would of 
necessity fall, for that the libel was of or concerning the 
plaintiff is the essence of plaintiff’s claim.

Section 910 of Title 7, Code of Alabama 1940, pertain­
ing to libel, among other things, provides that ‘ ‘ * * * and 
if the allegation be denied, the plaintiff must prove, on the 
trial, the facts showing that the defamatory matter was 
published or spoken of him.” This statute would seem to 
require the proof here admitted. And in Wofford v. Meeks, 
129 Ala. 349, 30 So. 625, the court stated that where the



60

libel is against a group, any one of that group may main­
tain an action “ upon a showing that the words apply spe­
cially to him,”  and in Chandler v. Birmingham News Co., 
209 Ala. 208, 95 So. 886, this court said, “ Any evidence 
which tended to show it was not ‘ of and concerning the 
plaintiff’ was material and relevant to the issue.”

In Hope v. Hearst Consolidated Publications, (2nd Cir. 
1961), 294 Fed. 2d 681, the court said as to the admissibility 
of testimony that a witness believed the defamatory mat­
ter referred to the plaintiff:

“ In this regard it appears that the New York ex­
clusionary rule represents a distinct, if not a lone, 
minority voice. The vast majority of reported cases, 
from both American and British courts, espouse the 
admission of such evidence; the text writers similarly 
advocate its admissibility.

*  #  #  #  #

“ The plaintiff as a necessary element in obtaining 
relief, would have to prove that the coercive lies were 
understood by customers, to be aimed at him. In cases 
where the plaintiff was not specifically named, the exact 
issue now before us would be presented.”

In accord Avith the doctrine that the instant evidence Avas 
admissible may be cited, among other authorities Marr v. 
Putnam Oil Co., (Or.), 246 P. 2d 509; Red River Valley Pub. 
Co., Inc. v. Bridges, (Tex. Civ. App.) 254 S. W. 2d 854; 
Colbert v. Journal Pub. Co. (N. M.) 142 P. 146; Prosser v. 
Callis et al. (Ind.) 19 N. E. 735; Martin County Bank v. Day 
(Minn.) 75 N. W. 1115; Ball v. Evening American Pub. Co. 
(111.) 86 N. E. 1097; Children v. Shinn (IoAva) 150 N. W. 864.

Appellant’s assignments of error 22, 26, 28, 31, 33, and 
34, relate to the action of the court in overruling objections 
to certain questions propounded to plaintiff’s Avitnesses 
Blackwell, Kaminsky, Price, Parker, and White, Avhich 
questions were to the effect that if the witnesses believed 
the matter contained in the advertisement, Avould they have 
thought less of the plaintiff.



61

Counsel for appellant argues that the questions 
“  * * * inescapably carried the implication that the witness 
thought the ad was published of and concerning the plain­
tiff.”  Each and every one of the above named witnesses 
had testified previous to the instant questions, that they 
had associated the City Commissioners, or the plaintiff, 
with the advertisement upon reading it. The questions 
were therefore based upon the witnesses’ testimony that 
they associated the advertisement with the plaintiff, and not 
merely an implication that might be read into the question.

Counsel further argues that the question is hypothetical 
in that none of the witnesses testified they believed the 
advertisement, or that they thought less of the plaintiff.

While we think such evidence of small probative value, 
yet it would have relevancy not only as to its effect upon 
the recipient, but also as to the effect such publication may 
reasonably have had upon other recipients. See ‘ ‘ Defama­
tion,”  69 Harv. L. R., 877, at 884.

This aside, we cannot see that the answers elicited were 
probably injurious to the substantial rights of the appel­
lant. Sup. Court Rule 45. Proof of common knowledge is 
without injury, though it be unnecessary to offer such proof.

Clearly we think it common knowledge that publication 
of matter libelous per se would, if believed, lessen the per­
son concerned in the eyes of any recipient of the libel. See 
Tidmore v. Mills, 33 Ala. App. 243, 32 So. 2d 769, and cases 
cited therein.

Assignment of error No. 63 asserts error arising out of 
the following instance during the cross-examination of 
Gershon Aronson, a witness for The Times, which matter, 
as shown by the record, had been preceded by numerous 
objections, and considerable colloquy between counsel and 
court:

“ Q. Would you state now sir, what that word means 
to you ; whether it has only a time meaning or whether 
it also to your eye and mind has a cause and effect 
meaning?
“ Mr. Embry: Now, we object to that, Your Honor. 
That’s a question for the jury to determine—
‘ ‘ The Court: Well, of course, it probably will be a ques­
tion for the jury, but this gentleman here is a very high



62

official of The Times and I should think he can testify— 
“ Mr. Daly: I object to that, Your Honor. He isn’t a 
high official of The Times at all—
“ Mr. Embry: He is just a man that has a routine job 
there, Your Honor. He is not—
“ The Court: Let me give you an exception to the 
Court’s ruling.
“ Mr. Embry: We except.’ ’

We do not think it can be fairly said that the record 
discloses a ruling by the trial court on counsel’s objection 
to the use of the term “ very high official. ’ ’ The ruling made 
by the court is palpably to the question to which the objec­
tion was interposed. Counsel interrupted the court to object 
to the term “ very high official,’ ’ and second counsel added, 
“ He is just a man that has a routine job there, Your 
Honor. ’ ’ Apparently this explanation satisfied counsel, as 
the court’s use of the term was not pursued to the extent of 
obtaining a ruling upon this aspect, and the court’s ruling 
was upon the first, and main objection.

Mr. Aronson testified that he had been with The Times 
for twenty-five years, and was Assistant Manager of the 
Advertising Acceptability Department of The Times, and 
was familiar with the company’s policies regarding ad­
vertising in all its aspects, that is, sales, acceptability, etc., 
and that advertisements of organizations and committees 
that express a point of view comes within the witness’s 
particular duties.

In view of the above background of Mr. Aronson, and 
the state of the record immediately above referred to, we 
are unwilling to cast error upon the lower court in the 
instance brought forth under assignment No. 63.

Assignment of error No. 81 is to the effect that the lower 
court erred in denying appellant’s motion for a neAV trial. 
Such an assignment is an indirect assignment of all of the 
grounds of the motion for a new trial which appellant sees 
fit to bring forward and specify as error in his brief.

The appellant under this assignment has sought to 
argue several grounds of its motion for a new trial.

Counsel, in this connection, seeks to cast error on the



63

lower court because of an alleged prejudicial statement 
made by counsel for tbe appellee in his argument to the 
jury.

The record fails to show any objections were interposed 
to any argument by counsel for any of the litigants during 
the trial. There is therefore nothing presented to us for 
review in this regard. Woodward Iron Co. v. Earley, 247 
Ala. 556, 25 So. 2d 267, and cases therein cited.

Counsel also argues two additional grounds contained 
in the motion for a new trial. (1) that the appellant was 
deprived of due process in the trial below because of hostile 
articles in Montgomery newspapers, and (2) because of the 
presence of photographers in the courtroom and the pub­
lication of the names and pictures of the jury prior to the 
rendition of the verdict.

As to the first point, the appellant sought to introduce 
in the hearing on the motion for a new trial newspaper 
articles dated prior to, and during, the trial. The court 
refused to admit these articles.

At no time during the course of the trial below did the 
appellant suggest a continuance, or a change of venue, or 
that it did not have knowledge of said articles.

Likewise, at no time was any objection interposed to 
the presence of photographers in the courtroom.

Newly discovered evidence was not the basis of the 
motion for a. new trial. This being so, the court was con­
fined upon the hearing on the motion to matters contained 
in the record of the trial. Thomason v. Silvey, 123 Ala. 
694, 26 So. 644; Alabama Gas Co. v. Jones, 244 Ala. 413, 
13 So. 2d 873.

Assignment, of error 78 pertains to an alleged error 
occurring in the court’s oral charge.

In this connection the record shows the following:
“ Mr. Embry: We except, your Honor. We except 

to the oral portions of Your Honor’s Charge wherein 
Your Honor charged on libel per se. We object to 
that portion of Your Honor’s Charge wherein Your 
Honor charged as follows: ‘ So, as I said, if you are 
reasonably satisfied from the evidence before you, con­
sidered in connection with the rules of law the Court



64

has stated to you, you would come to consider the ques­
tion of damages and, where as here, the Court has ruled 
the matter complained of proved to your reasonable 
satisfaction and aimed at the plaintiff in this case, is 
libelous per se then punitive damages may be awarded 
by the jury even though the amount of actual damages 
is neither found nor shown.’

“ The Court: Overruled and you have an excep­
tion.”

Preceding the above exception the court had instructed 
the jury as follows:

“ Now, as stated, the defendants say that the ad 
complained of does not name the plaintiff, Sullivan, by 
name and that the ad is not published of and concern­
ing him. . . . The plaintiff, Sullivan, as a member of 
the group referred to must show by the evidence to 
your reasonable satisfaction that the words objected 
to were spoken of and concerning him. The reason for 
this being that while any one of a class or group may 
maintain an action because of alleged libelous words, 
he must show to the reasonable satisfaction of the jury 
that the words he complained of apply especially to him 
or are published of and concerning him.

# # * # *
“ So, at the very outset of your deliberations you 

come to this question: Were the words complained of 
in counts 1 and 2 of this complaint spoken of and con­
cerning the plaintiff, Sullivan? That’s the burden he 
has. He must show that to your reasonable satisfac­
tion and if the evidence in this case does not reason­
ably satisfy you that the words published were spoken 
of or concerning Sullivan or that they related to him, 
why then of course he would not be entitled to any dam­
ages and you would not go any further.”

In addition, the court gave some eleven written charges 
at defendant’s request, instructing the jury in substance 
that the burden was upon the plaintiff to establish to the 
reasonable satisfaction of the jury that the advertisement 
in question was of and concerning the plaintiff, and that 
without such proof the plaintiff could not recover.



65

It is to be noted that in the portion of the complained of 
instructions excerpted above, the court first cautioned the 
jury they were to consider the evidence in connection with 
the rules of law stated to them. The court had previously 
made it crystal clear that the jury were to determine to 
their reasonable satisfaction from the evidence that the 
words were spoken of and concerning the plaintiff.

Counsel for appellant contend that because of the words 
“ and aimed at the plaintiff in this case,”  the instruction 
would be taken by the jury as a charge that the advertise­
ment was of and concerning the plaintiff, and hence the in­
struction was invasive of the province of the jury.

Eemoved from the full context of the court’s instruc­
tions the charge complained of, because of its inept mode 
of expression, might be criticized as confused and mis­
leading.

However, it is basic that a court’s oral charge must be 
considered as a whole and the part excepted to should be 
considered in the light of the entire instruction. I f as a 
whole the instructions state the law correctly, there is no re­
versible error even though a part of the instructions, if con­
sidered alone, might be erroneous.

Innumerable authorities enunciating the above doctrines 
may be found in 18 Ala. Dig., Trial, Key Nos. 295(1) 
through 295(11).

Specifically, in reference to portions of oral instructions 
that might be criticized because tending to be invasive of 
the province of the jury, we find the following stated in 
98 C. J. S., Trial, Sec. 438, the text being amply supported 
by citations:

“ A  charge which, taken as a whole, correctly sub­
mits the issues to the jury will not be held objectionable 
because certain instructions taken in their severalty, 
may be subject to criticism on the ground they invade 
the province of the jury, * *

To this same effect, see Abercrombie v. Martin and Hoyt 
C o 227 Ala. 510, 150 So. 497; Choctaw Coal and Mining 
Co. v. Dodd, 201 Ala, 622, 79 So. 54.



66

We have carefully read the court’s entire oral instruc­
tion to the jury. It is a fair, accurate, and clear expression 
of the governing legal principles. In light of the entiie 
charge we consider that the portion of the charge com­
plained of to be inconsequential, and unlikely to have 
affected the jury’s conclusions. We do not consider it prob­
able that this appellant was injured in any substantial light 
by this alleged misleading instruction in view of the court s 
repeated and clear exposition of the principles involved, and 
the numerous written charges given at defendant’s request 
further correctly instructing the jury in the premises.

The individual appellants, Ralph D. Abernathy, h red 
L. Shuttlesworth, S. S. Seay, Sr., and J. E. Lowery have 
also filed briefs and arguments in their respective appeals. 
Many of the assignments of error in these individual ap­
peals are governed by our discussion of the principles 
relating to the appeal of The Times. We therefore will 
now confine our review in the individual appeals to those 
assignments that may present questions not already 
covered.

In their assignment of error No. 41, the individual appel­
lants assert that the lower court erred in its oral instruc­
tions as to ratification of the use of their names in the 
publication of the advertisement. The instructions of the 
court in this regard run for a half a page or better. The 
record shows that an exception was attempted in the fol­
lowing language:

“ Lawyer Gray: Your Honor, we except to the 
court’s charge dealing with ratification as well as the 
Court’s charge in connection with the advertisement 
being libelous per se in behalf of each of the individual 
defendants. ’ ’

The above attempted exception was descriptive of the 
subject matter only, and is too indefinite to invite our 
review. Birmingham Ry. Light and Power Co. v. Friedman, 
187 Ala. 562, 65 So. 939; Conway v. Robinson, 216 Ala. 495, 
113 So. 531; Birmingham Ry. Light and Power Co. v. 
Jackson, 198 Ala. 378, 73 So. 627.



67

The refusal of a large number of charges applicable 
only to the individual appellants are also made the bases 
of numerous assignments of error. We have read all such 
refused charges, and each and every one is faulty.

Several of the charges instruct the jury that if the jury 
“ find”  etc., while others use the term “ find from the evi­
dence. ’ ’ These charges were refused without error in that 
the predicate for the jury ’s determination in a civil suit 
is “ reasonably satisfied from the evidence.”  A  court can­
not be reversed for its refusal of charges which are not 
expressed in the exact and appropriate terms of the law. 
W. P. Brown and Sons Lumber Co. v. Rattray, 238 Ala. 
406, 192 So. 851.

Others of the refused charges, not affirmative in nature, 
are posited on “ belief,”  or “ belief from the evidence.”  
A  judgment will not be reversed or affirmed because of the 
refusal, or giving, of “ belief”  charges. Sovereign Camp, 
W.O.W. v. Sirten, 234 Ala. 421, 175 So. 539; Pan American 
Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616; Casino 
Restaurant v. McWhorter, 35 Ala. App. 332, 46 So. 2d 582.

Specification of error number 6 asserts error in the 
court’s action in refusing to sustain the individual defend­
ant’s objection to the way one of the plaintiff’s counsel 
pronounced the word “ negro.”  When this objection was 
interposed, the court instructed plaintiff’s counsel to “ read 
it just like it is,”  and counsel replied, “ I have been pro­
nouncing it that way all my life. ’ ’ The court then instructed 
counsel to proceed. No further objections were interposed, 
nor exceptions reserved.

We consider this assignment mere quibbling, and cer­
tainly nothing is presented for our review in the state of 
the record.

Counsel have also argued assignments to the effect that 
error infects this record because, (1) the courtroom was 
segregated during the trial below, and (2) the trial judge 
was not duly and legally elected because of alleged depriva­
tion of voting rights to negroes.

Neither of the above matters were presented in the trial 
below, and cannot now be presented for review.



68

Counsel further argues that the appellants were de­
prived of a fair trial in that the trial judge was, by virtue 
of Local Act No. 118, 1939 Local Acts of Alabama, p. 66, 
a member of the jury commission of Montgomery County. 
This act is constitutional. Reeves v. State, 260 Ala. 66, 
68 So. 2d 14.

Without intimating that any merit attaches to this con­
tention, it is sufficient to point out that this point was not 
raised in the trial below, and must be considered as having 
been waived. De Moville v. Merchants & Farmers Bank 
of Greene County, 237 Ala. 347, 186 So. 704.

Assignments 42, 121, 122, assert error in the court’s 
refusal to hear the individual appellant’s motions for new 
trials, and reference in brief is made to pages 2058-2105 
of the record in this connection.

These pages of the record merely show that the individ­
ual appellants filed and presented to the court their respec­
tive motions for a new trial on 2 December 1960, and the 
same were continued until 16 December 1960. On 16 Decem­
ber 1960, the respective motions were continued to 14 
January 1961. No further orders in reference to the 
motions of the individual appellants appear in the record, 
and no judgment on any of the motions of the individual 
appellants appears in the record.

The motions of the individual appellants therefore be­
come discontinued after 14 January 1961.

There being no judgments on the motion for a new trial 
of the individual appellants, and they having become dis­
continued, those assignments by the individual appellants 
attempting to raise questions as to the weight of the evi­
dence, and the excessiveness of the damages are ineffective 
and present nothing for review. Such matters can be 
presented only by a motion for a new trial. See 2 Ala. Dig., 
Appeal and Error, Key Nos. 294(1) and 295, for innumer­
able authorities.

Other matters are argued in the briefs of the individual 
appellants. We conclude they are without merit and do 
not invite discussion, though we observe that some of the



69

matters attempted to be brought forward are insufficiently 
presented to warrant review.

EVIDENCE ON THE MERITS
The plaintiff first introduced the depositorial testimony 

of Harding Bancroft, secretary of The Times.
Mr. Bancroft thus testified that one John Murray 

brought the original of the advertisement to The Times 
where it was delivered to Gfershon Aronson, an employee 
of The Times. A Thermo-fax copy of the advertisement 
was turned over to Vincent Redding, manager of the ad­
vertising department, and Redding approved it for inser­
tion in The Times. The actual insertion was done pursuant 
to an advertising insertion order issued by the Union 
Advertising Service of New York City.

Redding determined that the advertisement was en­
dorsed by a large number of people whose reputation for 
truth he considered good.

Numerous news stories from its correspondents, pub­
lished in The Times, relating to certain events which 
formed the basis of the advertisement and which had been 
published from time to time in The Times were identified. 
These news stories were later introduced in evidence as 
exhibits.

Also introduced through this witness was a letter from 
A. Philip Randolph certifying that the four individual 
defendants had all given permission to use their names in 
furthering the work of the “ Committee to Defend Martin 
Luther King and the Struggle for Freedom in the South. ’ ’

Mr. Bancroft further testified that The Times received 
a letter from the plaintiff dated 7 April 1960, demanding a 
retraction of the advei-tisement. They replied by letter 
dated 15 April 1960, in which they asked Mr. Sullivan what 
statements in the advertisement reflected on him.

After the receipt of the letter from the plaintiff, The 
Times had McKee, its “ string”  correspondent in Mont­
gomery, and Sitton, its staff correspondent in Atlanta, 
investigate the truthfulness of the allegations in the ad­



70

vertisement. Their lengthy telegraphic reports, introduced 
in evidence showed that the Alabama College officials had 
informed them that the statement that the dining room at 
the College had been padlocked to starve the students into 
submission was absolutely false; that all but 28 of the 
1900 students had re-registered and meal service was fur­
nished all students on the campus and was available even 
to those who had not registered, upon payment for the 
meals; that the Montgomery police entered the campus 
upon request of the College officials, and then only after a 
mob of rowdy students had threatened the negro college 
custodian, and after a college policeman had fired his pis­
tol in the air several times in an effort to control the mob. 
The city police had merely tried to see that the orders of 
the Alabama College officials were not violated.

Sitton’s report contained the following pertinent state­
ments :

“ * * * Paragraph 3 of the advertisement, which 
begins, ‘ In Montgomery, Alabama, after students sang’ 
and so forth, appears to be virtually without any 
foundation. The students sang the National Anthem. 
Never at any time did police ‘ ring’ the campus 
although on three occasions they were deployed near 
the campus in large numbers. Probably a majority of 
the student body was at one time or another involved 
in the protest but not the ‘ entire student body.’ I 
have been unable to find anyone who has heard that the 
campus dining room was padlocked. * # * In refer­
ence to the 6th paragraph, beginning: ‘ Again and 
again the Southern violators’ and so forth, Dr. K ing’s 
home was bombed during the bus boycott some four 
years ago. His wife and child were there but were not 
(repeat not) injured in any way. King says that the 
only assault against his person took place when he was 
arrested some four years ago for loitering outside a 
courtroom. The arresting officer twisted K ing’s arm
behind the minister’s back in taking him to be booked. ##*>? >

These reports further show that King had been arrested 
only twice by the Montgomery police. Once for speeding



71

on which charge he was convicted and paid a $10.00 fine, 
and once for “ loitering”  on which charge he was convicted 
and fined $14.00, this fine being paid by the then police 
commissioner whom the plaintiff succeeded in office.

Mr. Bancroft further testified that upon receipt of a 
letter from John Patterson, Governor of Alabama, The 
Times retracted the advertisement as to Patterson, al­
though in The Times ’ judgment no statement in the adver­
tisement referred to John Patterson either personally or 
as Governor of Alabama. However, The Times felt that 
since Patterson held the high office of Governor of Alabama 
and believed that he had been libeled, they should apologize.

Grover C. Hall, Jr., Arnold D. Blackwell, William H. 
MacDonald, Harry W. Kaminsky, H. M. Price, Sr., Wil­
liam M. Parker, Jr., and Horace W. White, all residents of 
the city of Montgomery, as well as the plaintiff, testified 
over the defendant’s objections that upon reading the ad­
vertisement they associated it with the plaintiff, who was 
Police Commissioner.

E. Y. Lacy, Lieutenant of detectives for the city of 
Montgomery, testified that he had investigated the bomb­
ings of K ing’s home in 1955. This was before the plaintiff 
assumed office as Commissioner of Police. One bomb failed 
to explode, and was dismantled by Lacy. In attempting to 
apprehend the bombers, “ The Police Department did 
extensive research work with overtime and extra personnel 
and we did everything that we knew including inviting and 
working with other departments throughout the country.”

O. M. Strickland, a police officer of the city of Mont­
gomery, testified that he had arrested King on the loitering 
charge after King had attempted to force his way into an 
already overcrowded courtroom, Strickland having been 
instructed not to admit any additional persons to the court­
room unless they had been subpoenaed as a witness. At no 
time did he nor anyone else assault King in any manner, 
and King was permitted to make his own bond and was 
released.

In his own behalf the plaintiff, Sullivan, testified that he 
first read the advertisement in the Mayor’s office in Mont­



72

gomery. He testified that he took office as a Commis­
sioner of the City of Montgomery in October 1959, and had 
occupied that position since. Mr. Sullivan testified that 
upon reading the advertisement he associated it with him­
self, and in response to a question on cross-examination, 
stated that he felt that he had been greatly injured by it.

Mr. Sullivan gave further testimony as to the falsity of 
the assertions contained in the advertisement.

For the defense, Gershon Aronson, testified that the 
advertisement was brought to him by John Murray and he 
only scanned it hurriedly before the advertisement was sent 
to the Advertising Acceptability Department of The New 
York Times. As to whether the word “ they”  as used in 
the paragraph of the advertisement charging that 
“ Southern violaters”  had bombed King’s home, assaulted 
his person, arrested him seven times, etc., referred to the 
same people as “ they”  in the paragraph wherein it was 
alleged that the Alabama College students were padlocked 
out of their dining room in an attempt to starve them into 
submission and that the campus was ringed with police, 
armed with shotguns, tear gas, etc., Aronson first stated, 
“ Well, it may have referred to the same people. It is 
rather difficult to tell”  and a short while later Aronson 
stated, “ Well, I think now it probably refers to the same 
people. ’ ’

The Times was paid in the vicinity of $4,800 for publish­
ing the advertisement.

D. Vincent Kedding, assistant to the manager of the 
Advertising Acceptability Department of The Times, testi­
fied that he examined the advertisement and approved it, 
seeing nothing in it to cause him to believe it was false, 
and further he placed reliance upon the endorsers “ whose 
reputations I had no reason to question.”  On cross-exami­
nation Mr. Redding testified he had not checked with any 
of the endorsers as to their familiarity with the events in 
Montgomery to determine the accuracy of their statements, 
nor could he say whether he had read any news accounts 
concerning such events which had been published in The



73

Times. The following is an excerpt from Mr. Redding’s 
cross-examination:

“ Q. Now, Mr. Redding, wouldn’t it be a fair state­
ment to say that you really didn’t check this ad at all 
for accuracy!

“ A. That’s a fair statement, yes.”

Mr. Harding Bancroft, Secretary of The Times, whose 
testimony taken by deposition had been introduced by the 
plaintiff, testified in the trial below as a witness for the 
defendants. His testimony is substantially in accord with 
that given in his deposition and we see no purpose in an 
additional delineation of it.

As a witness for the defense, John Murray testified that 
he was a writer living in New York City. He was a volun­
teer worker for the “ Committee to Defend Martin Luther 
King,”  etc., and as such was called upon, together with two 
other writers, to draft the advertisement in question.

These three were given material by Bayard Rustin, the 
Executive Director of the Committee, as a basis for com­
posing the advertisement. Murray stated that Rustin is 
a professional organizer, he guessed along the line of rais­
ing funds. Murray knew that Rustin had been affiliated 
with the War Resisters League, among others.

After the first proof of the advertisement was ready, 
Rustin called him to his office and stated he was dissatisfied 
with it as it did not have the kind of appeal it should have 
if it was to get the response in funds the Committee needed.

Rustin then stated they could add the names of the 
individual defendants since by virtue of their membership 
in the Southern Christian Leadership Conference, which 
supported the work of the Committee, he felt they need 
not consult them.

The individual defendants’ names were then placed on 
the advertisement under the legend “ We in the South who 
are struggling daily for dignity and freedom warmly 
endorse this appeal.”

Murray further testified that he and Rustin rewrote the 
advertisement “ to get money”  and “ to project the ad in



74

the most appealing form from the material we were 
getting. ’ ’

As to the accuracy of the advertisement, Murray testi­
fied :

“ Well, that did not enter the—it did not enter into 
consideration at all except we took it for granted that 
it was accurate—we took it for granted that it was 
accurate—they were accurate—and if they hadn’t been 
—I mean we would have stopped to question it—I mean 
we would have stopped to question it. We had every 
reason to believe it.”

The individual defendants all testified to the effect that 
they had not authorized The New York Times, Philip 
Randolph, the “ Committee to defend Martin Luther King,”  
etc., nor any other person to place their names on the adver­
tisement, and in fact did not see the contents of the adver­
tisement until receipt of the letter from the plaintiff.

They all testified that after receiving the letter demand­
ing a retraction of the advertisement they had not replied 
thereto, nor had they contacted any person or group con­
cerning the advertisement or its retraction.

AMOUNT OF DAMAGES
Under assignment of error No. 81, The Times argues 

those grounds of its motion for a new trial asserting that 
the damages awarded the plaintiff are excessive, and the 
result of bias, passion, and prejudice.

In Johnson Publishing Co. v. Davis, supra, Justice 
Stakely in a rather definitive discussion of a court’s 
approach to the question of the amount of damages awarded 
in libel actions made the following observations:

“  * # * The punishment by way of damages is in­
tended not alone to punish the wrongdoer, but as a 
deterrent to others similarly minded. Liberty National 
Life Insurance Co. v. Weldon, supra; Advertiser Co. v. 
Jones, supra; Webb v. Cray, 181 Ala. 408, 62 So. 194.

“ Where words are libelous per se and as heretofore 
stated we think the published words in the present case



75

were libelous per se, the right to damages results as a 
consequence, because there is a tendency of such libel 
to injure the person libeled in his reputation, profes­
sion, trade or business, and proof of such pecuniary 
injury is not required, such injury being implied. Ad­
vertiser Co. v. Jones, supra; Webb v. Cray, supra; 
Brown v. Publishers: George Knapp & Co., 213 Mo. 
655, 112 S. W. 474; Maytag Co. v. Meadows Mfg. Co., 
7 Cir., 45 F. 2d 299.

“ Because damages are presumed from the circula­
tion of a publication which is libelous per se, it is not 
necessary that there be any correlation between the 
actual and punitive damages. Advertiser Co. v. Jones, 
supra; Webb v. Gray, supra; Whitcomb v. Hearst 
Corp., 329 Mass. 193, 107 N. E. 2d 295.

‘ ‘ The extent of the circulation of the libel is a proper 
matter for consideration by the jury in assessing plain­
tiff’s damages. Foerster v. Bidder, Sup., 57 N. Y. S. 
2d 668; Whitcomb v. Hearst Corp., supra.

*  # # # #

“ In Webb v. Gray, supra [181 Ala. 408, 62 So. 196], 
this court made it clear that a different rule for 
damages is applicable in libel than in malicious prosecu­
tion cases and other ordinary tort cases. In this case 
the court stated in effect that in libel cases actual 
damages are presumed if the statement is libelous per 
se and accordingly no actual damages need be proved. 

* * * * #
“ In Advertiser Co. v. Jones, supra, this Court con­

sidered in a libel case the claim that the damages were 
excessive and stated: ‘ While the damages are large in 
this case we cannot say that they were excessive. There 
was evidence from which the jury might infer malice, 
and upon which they might award punitive damages. 
This being true, neither the law nor the evidence fur­
nishes us any standard by which we can ascertain cer­
tainly that they were excessive. The trial court heard 
all of this evidence, saw the witnesses, observed their 
expression and demeanor, and hence was in a better 
position to judge of the extent of punishment which the 
evidence warranted than we are, who must form our



76

conclusions upon the mere narrative of the transcript. 
This court, in treating of excessive verdicts in cases in 
which punitive damages could be awarded, through 
Justice Haralson spoke and quoted as follows: “ There 
is no legal measure of damages in cases of this char­
acter.”  ’

* * * * *
“ The Supreme Court of Missouri considered the 

question in Brown v. Publishers: George Knapp & Co., 
213 Mo. 655, 112 S. W. 474, 485, and said: ‘ The action 
for libel is one to recover damages for injury to man’s 
reputation and good name. It is not necessary, in order 
to recover general damages for words which are action­
able per se, that the plaintiff should have suffered 
any actual or constructive pecuniary loss. In such 
action, the plaintiff is entitled to recover as general 
damages for the injury to his feelings which the libel 
of the defendant has caused and the mental anguish or 
suffering which he had endured as a consequence 
thereof. So many considerations enter into the award­
ing of damages by a jury in a libel case that the courts 
approach the question of the excessiveness of a verdict 
in such case with great reluctance. The question of 
damages for a tort especially in a case of libel or slan­
der is peculiarly within the province of the jury, and 
unless the damages are so unconscionable as to impress 
the court with its injustice, and thereby to induce the 
court to believe the jury were actuated by prejudice, 
partiality, or corruption, it rarely interferes with the 
verdict.’ ”  (Emphasis supplied.)

In the present case the evidence shows that the adver­
tisement in question was first written by a professional 
organizer of drives, and rewritten, or ‘ ‘ revved up ”  to make 
it more “ appealing.”  The Times in its own files had 
articles already published which would have demonstrated 
the falsity of the allegations in the advertisement. Upon 
demand by the Governor of Alabama, The Times published 
a retraction of the advertisement insofar as the Governor 
of Alabama was concerned. Upon receipt of the letter from 
the plaintiff demanding a retraction of the allegations in



the advertisement, The Times had investigations made by 
a staff correspondent, and by its “ string”  correspondent. 
Both made a report demonstrating the falsity of the allega­
tions. Even in the face of these reports, The Times ada­
mantly refused to right the wrong it knew it had done the 
plaintiff. In the trial below none of the defendants ques­
tioned the falsity of the allegations in the advertisement.

On the other hand, during his testimony it was the con­
tention of the Secretary of The Times that the advertise­
ment was “ substantially correct.”  In the face of this 
cavalier ignoring of the falsity of the advertisement, the 
jury could not have but been impressed with the bad faith 
of The Times, and its maliciousness inferable therefrom.

While in the Johnson Publishing Co. case, supra, the 
damages were reduced by way of requiring a remittitur, such 
reduction was on the basis that there was some element of 
truth in part of the alleged libelous statement. Xo such 
reason to mitigate the damages is present in this case.

It is common knowledge that as of today the dollar is 
worth only 50 cents or less of its former value.

The Times retracted the advertisement as to Governor 
Patterson, but ignored this plaintiff’s demand for retrac­
tion. The matter contained in the advertisement was equally 
false as to both parties.

The Times would not justify its nonretraction as to this 
plaintiff by fallaciously asserting that the advertisement 
was substantially true, and further, that the advertisement 
as presented to The Times bore the names of endorsers 
whose reputation for truth is considered good.

The irresponsibility of these endorsers in attaching their 
names to this false and malicious advertisement cannot 
shield The Times from its irresponsibility in printing the 
advertisement and scattering it to the four winds.

All in all we do not feel justified in mitigating the 
damages awarded by the jury, and approved by the trial 
judge below, by its judgment on the motion for a new trial, 
with the favorable presumption which attends the correct­
ness of the verdict of the jury where the trial judge refuses



78

to grant a new trial. Housing Authority of City of Decatur 
v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594.

In our considerations we have examined the case of New 
York Times Company v. Conner, (SCCA) 291 F. 2d 492 
(1961), wherein the Circuit Court of Appeals for the Fifth 
Circuit, relying exclusively upon Age Herald Publishing 
Co. v. Huddleston, 207 Ala. 40, 92 So. 193, held that no cause 
of action for libel arose in Alabama where the alleged libel 
appeared in a newspaper primarily published in New York.

This case overlooks, or ignores, the decision of this court 
in Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 
2d 441, wherein this court rejected the argument that the 
whole process of writing, editing, printing, transportation 
and distribution of a magazine should be regarded as one 
libel, and the locus of such libel was the place of primary 
publication. This court further, with crystal clarity, held 
that Age Herald Publishing Co. v. Huddleston, supra, con­
cerned a venue statute, and that venue statutes do not apply 
to foreign corporations not qualified to do business in Ala­
bama.

The statement of Alabama law in the Conner case, supra, 
is erroneous in light of our enunciation of what is the law 
of Alabama as set forth in the Johnson Publishing Company 
case, supra. This erroneous premise, as we interpret the 
Conner case, renders the opinion faulty, and of no persua­
sive authority in our present consideration.

“ The laws of the several states, except where the 
Constitution of treaties of the United States or Acts of 
Congress otherwise require or provide, shall be re­
garded as rules of decision in civil actions in the courts 
of the United States, in cases where they apply.”  Sec. 
1652, Title 28, U. S. C. A., 62 Stat. 94U

It is our conclusion that the judgment below is due to 
be affirmed, and it is so ordered.

A ffirmed.
Livingston, C. J., and Simpson and Merrill, JJ., concur.



79

THE SUPREME COURT OF ALABAMA 
Thursday, August 30,1962

T he Court M et in  Special Session P ursuant to A d­
journment

P resent: Alt, the Justices

3rd Div. 961
T h e  N ew  Y ork T imes Com­

pany , a Corporation
>- M ontgomery Circuit C ourt

vs.

L. B. Sullivan

Come the parties by attorneys and the record and mat­
ters therein assigned for errors being argued and submitted 
on motions and merits and duly examined and understood 
by the Court, it is considered that in the record and pro­
ceedings of the Circuit Court there is no error.

It is T herefore Considered, Ordered and A djudged that 
the judgment of the Circuit Court be in all things affirmed.

It is F urther Considered, Ordered and A djudged that, 
the appellant, The New York Times Company, a Corpora­
tion, and St. Paul Fire and Marine Insurance Company, a 
Corporation, surety on the supersedeas bond, pay the 
amount of the judgment of the Circuit Court and ten per 
centum (10%) damages thereon and interest and the costs 
of appeal of this Court and of the Circuit Court.

And it appearing that said parties have waived their 
right of exemptions under the laws of Alabama, it was 
ordered that execution issue accordingly.

And it was further Ordered and A djudged that the 
other appellants, Ralph D. Abernathy, Fred L. Shuttles- 
worth, S. S. Seay, Sr., and J. E. Lowery, be also taxed with 
the costs of appeal of this Court and of the Circuit Court, 
for which costs let execution issue accordingly.



8 0

Order and Opinion of the Circuit Court on 
Motion to Quash

Plaintiff, a resident of Montgomery, Alabama, has sued 
defendant, The New York Times Company, a corporation, 
and Others, in this Court for an allegedly libelous publica­
tion specified in the complaint. The matter is now before 
this Court on the motion, and amended motion, of the de­
fendant, The New York Times Company (hereinafter re­
ferred to as the “ Times” ), to quash the service of process 
upon it. Other defendants are not involved in these motions.

Service was obtained on the Times by serving the Secre­
tary of the State of Alabama pursuant to the provisions of 
Title 7, Section 199 (1) Code of Alabama, 1940, as amended, 
and by personal service on one Don McKee, as agent for the 
New York Times. Without dispute, the Secretary of State 
has performed all acts required of her under the provisions 
of this Section regarding notification to the Times.

General A ppearance

This motion, and its amendment, purport to be a special 
appearance for the sole purpose of quashing service of 
process. However, ground 6 of the prayer of this motion 
asks this Court to “ dismiss this action as to The New York 
Times Company, a corporation, for lack of jurisdiction of 
the subject matter of said action” . Clearly, this ground goes 
beyond the question of jurisdiction of this Court over the 
person of the defendant. Plaintiff’s attorneys make a thres­
hold argument in opposition to the Time’s motion that this 
defendant has made a general appearance in this case, and 
has thereby waived any defects in service of process, and 
has submitted its corporate person to the jurisdiction of 
this Court.

Plaintiff’s contention is sound.
This defendant cannot assert that it is not properly 

before this Court, and in the same breath argue that if it is, 
this Court has no jurisdiction of the subject matter of the 
action.

The Supreme Court of Alabama in Blankenship v. 
Blankenship 263, Ala. 297, 303, 82 So. 2d. 335, has recently



81

held that a party’s appearance in a suit for any purpose 
other than to contest the Court’s jurisdiction over the per­
son of such party, is a general appearance in the cause. See 
also Thompson v. Wilson, 224 Ala. 299, 300, 140 So. 139, 
where an objection to the jurisdiction of the Court to hear 
and determine the matter in controversy on grounds other 
than proper personal service on the defendant was con­
sidered a general appearance.

The Alabama rule is the majority one. See Annotation, 
25 A. L. R. 2d. 835, 838. And the rule is applicable “ notwith­
standing an express statement by the defendant that he 
appears specially or solely for the purpose of making the 
objection” , 25 A. L. R. 2d. at 840. The matter was suc­
cinctly put by the Court of Appeals of New York in Jackson 
v. National Grange Mutual Liability Co., 299 N. Y. 333, 87 
X. E. 2d. 283, 284:

“ under its special appearance, the defendant company 
could do nothing but challenge the jurisdiction of the 
Justice’s Court over its person . . .  Hence by its attempt 
to deny jurisdiction of the subject of the action, the 
company waived that special appearance and submitted 
its person to the jurisdiction of the Court.”

While its assertion of lack of jurisdiction of this Court 
over the subject matter of this action would be sufficient to 
constitute a general appearance, the Times has gone further 
and taken other steps in this cause inconsistent with its 
asserted special appearance. It sought to invoke the original 
jurisdiction of the Supreme Court of Alabama by applying 
for the extraordinary writ of mandamus to review the order 
of this Court directing it to produce certain documents. The 
petition was presented to the Supreme Court and briefed 
on grounds other than lack of jurisdiction over the person 
of this defendant. This defendant sought to have the Su­
preme Court, by extraordinary writ, vacate an order of this 
Court on non-jurisdictional grounds— that is, grounds 
totally unrelated to its special appearance in the Alabama 
courts.



82

Such action, too, has been held to be inconsistent with 
a special appearance, and, accordingly, a waiver of the same. 
Vaughan v. Vaughan, 267 Ala. 117, 121, 100 So. 2d. 1:

“ Respondent . . .  by not limiting her appearance 
and by including non-jurisdictional as well as juris­
dictional grounds in her motion to vacate . . . has made 
a general appearance and has thereby waived any defect 
or insufficiency of service. (Citations)”

These acts in the Supreme Court, all inconsistent with its 
special appearance, strengthen the conclusion of this Court 
that the Times has appeared generally in this cause.

Validity op Substituted Service

In view of the foregoing holding that the Times has 
made a general appearance in the cause, and has waived 
its special appearance, it is not essential to a decision on 
this defendant’s motion to consider the matter of whether 
service of process on the Times is valid. But, in view of the 
voluminous testimony of this latter question, and in view 
of the manifold contacts with the Times maintains with the 
State of Alabama, it seems appropriate to explain why 
this Court considers that the Times is amenable to process 
and suit in the Alabama courts regardless of its general 
appearance.

Our statute, Title 7, Section 199 (1) Alabama Code 
1940, accords with widespread legislation of recent origin 
designed to afford state residents the opportunity of main­
taining suit against foreign corporations, which, while main­
taining significant business contract within the State, never­
theless do not qualify to do business as provided by state 
law. This Alabama statute makes such an unqualified 
foreign corporation subject to suit here if it does business 
in this state, and if the cause of action sued on arises out 
of or is incident to the business done in Alabama. The scope 
of our statute has been defined in Boyd v. Warrant Paint 
Co., 254 Ala, 687, 688, 49 So. 2d. 599:

“ In determining the question, we are not here con­
cerned with state law, since it is not controlling. The



83

issue is regarded in this jurisdiction as a federal ques­
tion of whether subjection of the defendant to this 
sovereignty comports with federal due process. Ford 
Motor Co. v. Hall Auto Co., 226 Ala. 385, 147 So. 603; 
St. Mary’s Oil Engine Co. v. Jackson Oil <& Fuel Co., 
224 Ala. 152, 138 So. 834. As was said in Ford Motor 
Co. v. Hall Auto Co., supra: It is recognized that the 
federal authorities are controlling on questions enter­
ing into the inquiry and ascertainment of the facts 
(1) of doing business, and (2) of authorized agency on 
which process must be served, or (3) those of due proc­
ess, equal protection, and interstate commerce. * * * ’ 
226 Ala. 387,147 So. 605.”

Thus, the Alabama statute allows this suit against the 
Times in Alabama if the suit is not prohibited here by the 
due process clause (Amendment 14) of the Constitution 
of the United States. Moreover, the Boyd case, supra, 
makes clear that under this due process inquiry that there is 
“ subsumed the question of whether the action was based on 
a liability arising out of the local activities, it naturally 
being less burdensome to subject a corporation to defense of 
actions so arising than those arising elsewhere” . 254 Ala., 
at 691.

In order to consider in context the business activities of 
the New York Times in Alabama, the Court adopts the out­
line of the essential business functions of a newspaper con­
tained in Consolidated Cosmetics v. D. A. Publishing Co., 
186 F 2d. 906, 908 (7th Cir. 1951):

“ The functions of a magazine publishing company 
obviously include gathering material to be printed, 
obtaining advertisers and subscribers; printing, selling 
and delivering the magazines for sale. Each of these, 
we think, constitutes an essential factor of the magazine 
publication business. Consequently, if a nonresident 
corporation sees fit to perform any one of those es­
sential functions in a given jurisdiction, it necessarily 
follows that it is conducting its activities in such a 
manner as to be subject to jurisdiction.”

The key question is whether The New York Times, by 
virtue of its business activities in Alabama maintains suf­



84

ficient contacts with this State so that suit against it here 
accords with traditional concepts of fairness and the orderly 
administration of the laws “ which it was the purpose of the 
due process clause to insure” . International Shoe Co. v. 
Washington 326 U. S. 310, 319.

In the foregoing context, the Court considers the activi­
ties of the Times in this State. Plaintiff has submitted evi­
dence not only as to the year 1960. His evidence, in an 
attempt to establish a continuing pattern of such activities, 
extends from the year 1956 to the present.

To gather news for the Times, eleven admittedly regular 
staff correspondents have spent 153 days in Alabama. The 
results of their efforts are revealed in part by the 59 staff 
news stories in evidence which contain the by-lines of these 
correspondents. Their news gathering activities have been 
coordinated and correlated by the Times National News 
Editor, Harold Faber, who testified in this case; and by the 
southern regional correspondent, who is regularly assigned 
to cover news events in this state, among others in the 
southern region. This present correspondent, Claude Sitton, 
gave a deposition in this case. He came into Alabama and 
covered news events in Montgomery in March, 1960, relating 
to certain “ demonstrations” , which form the basis of a 
portion of the publication now in suit; and he came into 
Alabama in May, 1960 on assignment to cover the perjury 
trial of one Martin Luther King, which event is also the 
subject of a portion of this publication.

Another regular staff correspondent, Harrison Salis­
bury, entered Alabama on assignment from the witness, 
Faber, in April, 1960, and gathered news in Birmingham, 
Montgomery and Andalusia for subsequent publication in 
the Times.

In addition to the news gathering activities of its staff 
correspondents, the Times maintains three so-called 
“ string-correspondents” , who reside in Montgomery, Bir­
mingham, and Mobile. The stated purpose of such “ string­
ers”  in this state is to have them available for news stories 
of note in the area of their residence— subject to call by



85

tlie Times. The testimony shows that the Times has made 
an active effort to maintain a “ stringer”  at these three 
places in Alabama at all times; has commented upon the 
value of the services which they have performed; and has 
actively sought their replacement upon the resignation of 
any one of them. The testimony is clear that present 
“ stringers”  McKee and Chadwick have performed valuable 
services for the Times’ staff correspondents over and above 
the stories which the stringers themselves sent in for 
publication. And they performed such services in April, 
1960. Moreover, “ stringer”  McKee was entrusted with the 
delicate task of investigating the facts involved in the 
instant complaint when the plaintiff demanded that the 
Times retract the publication.

Obviously, the Times considers the news gathering 
activities of these staff correspondents and “ stringers”  a 
valuable and unique complement to the news gathering 
facilities of the Associated Press and other wire services 
of which the Times is a member. The stories of the 
“ stringers”  appear under the “ slug”  “ Special to the 
New York Times” , and there were 59 such “ specials”  in the 
period from January 1,1956, through April, 1960. The staff 
stories and the “ specials”  are copyrighted and sold by the 
Times to other newspapers. Thus, the following rule of 
law, stated in 30 A. L. R. 2d. at page 751, is applicable:

“ A foreign newspaper corporation which not only 
employs reporters in another state to obtain news for 
its own newspaper, but; also sells to other newspapers 
the news thus obtained, lias been held to be doing busi­
ness in the state.”  (Citing authorities).

In search of revenues, the Times actively solicits adver­
tising in the State of Alabama. One representative spent 
over a week soliciting advertising in Montgomery, Mobile 
and Birmingham. Another representative spent 7 days in 
Alabama visiting Birmingham, Montgomery and Selma, 
and a third representative spent three days in Birmingham. 
All of this business activity occurred in the period from July 
1, 1959 through June 3,1960, after an advertising office was



86

opened in Atlanta, which includes Alabama within its 
territory. Manager Hurley sold one ad to the State of 
Alabama which brought between three and five thousand 
dollars. In 1958, an ad appearing in the Alabama sup­
plement of February 2 brought over $28,000 to the Times. 
According to its own testimony, the Times received between 
seventeen and eighteen thousand dollars from ads obtained 
in Alabama from January 1 through April, 1960. Annual­
ized, these revenues would approximate Fifty to Fifty-five 
Thousand Dollars per year.

A  Times witness, Roger Waters, testified that the daily 
circulation in Alabama was 390 papers per day, and that 
Sunday circulation was approximately 2,500 papers. This 
would produce a revenue of $35,884.55 per year, which, when 
added to the advertising revenue would give the Times a 
revenue from business activities in Alabama of over $85,000 
per year.

Papers are sold to individual subscribers and inde­
pendent dealers and wholesalers. Freight is prepaid in 
New York, thus making the carrier the agent of the Times. 
Credit is given for unsold newspapers without physical 
return of the papers. In these circumstances, title does not 
pass until actual delivery to the consignee.— Title 57, Sec­
tion 25, Alabama Code 1940; 2 Williston, Sales, Section 279 
(b) page 90. In giving credit for return, the Times some­
times requires a certificate from the local freight agent 
located in Alabama. It thus appears that the Times owns 
property and handles claims in the State of Alabama.

It has also sold and distributed in the State of Alabama 
sets of its Microfilm Edition to 13 customers, and the New 
York Times Index to eighteen.

The Times contends that the cause of action did not arise 
out of its conduct of business in Alabama. The Court is of 
the opinion that the cause of action is “ an incident thereto”  
within the language of Title 7, Section 199 (1), Alabama 
Code, 1940. It is noteworthy that Sitton was assigned to 
Montgomery by the Times to cover the demonstrations at 
Alabama State College and the King trial, with which the



87

ad dealt. But, where a corporation is doing business in the 
State, due process does not require that the cause of action 
arise out of the business done there.—Perl-ins v. Benguet 
Consolidated Mining Co., 342 U. S. 437, 96 L. Ed. 485; 
Bomze v. Nardis Sportswear, Inc., 165 F. 2d. 33 (2d. Cir.— 
Judge Learned Hand—cited with approval in the Boyd 
case); Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 155 
N. E. 915 (Judge Cardozo). And Boyd, supra, extends the 
Alabama statute to the permissible limits of Federal due 
process.

In arriving at its decision, the Court has followed these 
relevant decisions of the Supreme Court of the United 
States:

International Harvester Co. v. Kentucky, 234 U. S. 
579, 58 L. Ed. 1479;

International Shoe Co. v. Washington, 326 U. S. 
310, 90 L. Ed. 95;

Perkins v. Benguet Mining Co., supra;
Polizzi v. Cowles Publications, 345 U. S. 663, 97 

L. Ed., 1331;
McGee v. International Ins. Co., 355 U. S. 220, 2 L. 

Ed. 2d. 223;
Scripto v. Carson, 362 U. S. 207, 4 L. Ed. 660.

While it is not necessary to discuss each of those 
decisions in detail, it is noteworthy that in the McGee case 
the minimal contact with the State of California which the 
Supreme Court held sufficient was the delivery by the 
insurance company by mail of one insurance policy, and the 
receipt from the insured in California by mail of premiums 
on this policy.

In the Scripto case, the minimal contact held sufficient 
was the production in the State of Florida, of an annual 
revenue of about $42,000 by independent dealers or 
brokers, who worked for others as well as Scripto. Here, 
Alabama sent in an annual revenue of over twice that 
amount, and regular employees of the Times combined 
their efforts with independent dealers to produce it. See 
also W. S. A. Z. v. Lyons, 254 F 2d. 242 (6th Cir. 1958).



88

The Court finds an extensive and continuous course of 
Alabama business activity—news gathering; solicitation of 
advertising; circulation of newspapers and other products. 
These systematic business dealings in Alabama give the 
Times substantial contract with the State of Alabama, con­
siderably in excess of the minimal contracts required by the 
Supreme Court decisions supra. The Times does business 
in Alabama.

Likewise, the Court finds that to subject the Times 
to suit in Alabama comports with traditional notions of 
fair play and the proper administration of justice. Plaintiff 
resides here, and is a public official of the City o f Mont­
gomery. If a reputation has a situs, it is here in Mont­
gomery. The events occurred largely in Montgomery, and 
witnesses who have knowledge of the truth or falsity of the 
events as outlined in the advertisement reside in or near 
Montgomery. Of the four co-defendants, two reside in 
Montgomery, one in Birmingham and one in Mobile. The 
Circuit Court of Montgomery County is the appropriate 
and convenient forum to try this action.

What was said in the case of Clements v. MacFadden 
Publications, Inc. 28 F. Supp. 274, 276, is applicable here:

“ To carry the present line of holdings to any greater 
extent than they now exist could easily result in a 
publication two thousand miles away destroying a 
man’s reputation, whether he be great or small, and 
requiring him to come to unfriendly territory, perhaps, 
to effect his vindication in the courts of justice.”

This Court has always been a staunch advocate and 
defender of freedom of the press. But this freedom and 
other safeguards of the due process clause do not com­
mand the plaintiff to carry his witnesses, his evidence, his 
counsel and himself more than one thousand miles to a 
distant forum to bring his action for alleged damages to bis 
reputation and to try his case. It is, therefore,

Considered, Ordered, and A djudged by the Court that the 
motion of the defendant, The New York Times Company, to



89

quash, and its amended motion to quash, be and the same 
are hereby denied.

Dated, this the 5th day of August, 1960.

W alter B. Jones 
Circuit Judge.

Filed in office August 5,1960.
J ohn R. M atthews, Clerk.

* * * * *

IN  TH E

CIRCUIT COURT 
OF MONTGOMERY COUNTY

A labama

L. B. Sullivan,

vs.
Plaintiff,

T he N ew  Y ork T imes Company, a Corpora- l. 
tion, Ralph D. A bernathy, F red L. S h ut - 
tlesworth, S. S. Seay, Sr ., and J. E. 
L owery.

Defendants.

A t L aw

Case No. 
27416

Oral Charge

The Court: Gentlemen of the Jury, before getting down 
to the immediate points of law here as the Judge of the 
Court I would like to join with the attorneys in this case 
in thanking you for the attention, care and interest which 
you have shown in listening to the testimony in this case 
and for your patience in listening to the arguments of coun­



90

sel. It is always a pleasure to try a case with a jury that is 
interested and has patience and I wish to thank you for that. 
Now, one other thing I would like to say although I think it 
is hardly necessary—one of the defendants in this case is 
a corporate defendant and some of the others belong to 
various races and in your deliberation in arriving at your 
verdict, all of these defendants whether they be corporate 
or individuals or whether they belong to this race or that 
doesn’t have a thing on earth to do with this case but let 
the evidence and the law be the two pole stars that will guide 
you and try to do justice in fairness to all of these parties 
here. They have no place on earth to go to settle this dispute 
except to come before a Court of our country and lay the 
matter before a jury of twelve men in whose selection each 
party has had the right to participate and out of all the 
jurors we had here at this term of Court, some fifty jurors, 
the parties here have selected you because they have con­
fidence in your honesty, your integrity, your judgment and 
your common sense. Please remember, gentlemen of the 
jury, that all of the parties that stand here stand before you 
on equal footing and are all equal at the Bar of Justice.

Now, let us see if I can tell you briefly what this case is 
about. There are two counts in the Bill of Complaint and 
I will not try to read them to you at length. The plaintiff 
in the case is L. B. Sullivan, an individual. The five defend­
ants in the case are The New York Times Company, a cor­
poration, and the following individuals; Ralph B. Aber­
nathy; Fred L. Shuttlesworth; S. S. Seay, Sr. and J. E. 
Lowery. Now, it is the contention of the plaintiff, Mr. Sul­
livan, that on or about the 29th of March, I believe it is, in 
1960, a certain publication was made in The New York 
Times on page 25 of the March 29th, 1960 issue in an ad­
vertisement entitled “Heed Their Rising Voices.” You 
have seen the witnesses with this advertisement and you 
have seen them and heard them testify and you have seen 
the ad and, of course, you will have a photostatic copy on the 
back of this Complaint to take to the Jury Room with you. 
It is the contention of the plaintiff, Sullivan, that the state­
ments made in this advertisement, and one of the state-



91

merits is set out in Count 1 which you heax-d read and 
another statement is set out in Count 2, which I will not 
read again because you are familiar with them and you will 
have the Complaint with you and it is alleged that they 
contain false and defamatoiy matter against him and it is 
his contention that the extracts from this advertisement 
contained in these two Counts in the Complaint imputed im­
proper conduct to him and it is his contentioix that this ad­
vertisement subjected him to public contempt, to ridicule, 
to shame and prejudice, and prejudiced Mr. Sullivan in his 
public office as Police Commissioner, in his profession, in 
his trade and in his business and all was done, he claims, 
with the intent to defame him. Now, in the first count of the 
Complaint which I will read to you he says this was false 
and defamatory and injured him in his profession. “ In 
Montgomery, Alabama, after students sang, ‘ My Country, 
’Tis of Thee’ on the Capitol steps, their leaders were ex­
pelled from school, and truckloads of police armed with 
shotguns 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.”  
“ Again and again the Southern violators have answered 
Dr. K ing’s peaceful protests with intimidation 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.”  Then, the next part of the advertisement which is 
objected to is contained in paragraph number 2 which looks 
like practically the same thing here.

Now, we have a law in Alabama which says that when 
a public officer contends that a publication libels him con­
cerning his official conduct that he cannot recover any 
vindictive or punitive damages unless, five days before he 
brings his law suit he has made written demand upon the 
defendant for a public infraction of the charge made and 
published, and that the defendant has failed or refused



92

within five days to make a full and fair retraction of the pub­
lished matter or the charge. Under the law, if a defendant 
fails to make a full and fair retraction, within five days after 
plaintiff’s demand, then the plaintiff is not barred from the 
recovery of punitive damages if he would be otherwise 
entitled to claim them. Now, the plaintiff in this case is 
claiming damages in the sum of five hundred thousand dol­
lars. Now, the defendants have come into Court, as is their 
right, and they have filed what we call the Plea of the Gen­
eral Issue and that is a general denial that they are guilty 
of the things charged. They are denying these things that 
are set out in the Complaint were published of and concern­
ing Sullivan, the plaintiff, they deny that the matter pub­
lished was defamatory of the plaintiff, Sullivan, and the 
defendant, The Times, also denies that the ad referred to 
Sullivan, the plaintiff, or charged him with something that 
is libelous and they deny that the ad itself charged the 
plaintiff with any misconduct. Now, there are four in­
dividual defendants and they are Ralph D. Abernathy, 
Fred L. Shuttlesworth, S. S. Seay, Sr. and J. E. Lowery, and 
they deny and plead the general issue too and they deny 
before the jury that they signed the ad and they say they 
did not authorize the use of their names and they say 
they did not know the ad was being published and never did 
give their consent to the use of their names. So, when those 
pleas are filed, the Plea of the General Issue, the law steps 
in and says to the plaintiff, Sullivan, what? It says, very 
well, Mr. Plaintiff, if you would have a verdict at the hands 
of the jury awarding you damages and upon Avhich the 
Court would be authorized to render a judgment at some 
later date or on the same day, then you must do this. You 
must reasonably satisfy the jury from the evidence that 
what you say in your whole Complaint or in Count 1 or in 
Count 2 is true. So that’s the burden that rests on the 
plaintiff here today—not to satisfy you beyond all reason­
able doubt as would be the case in a criminal case but 
simply to convince you to your reasonable satisfaction that 
what he says and what he claims in this Complaint is true. 
Now, as stated, the defendants say that the ad complained



93

of does not name the plaintiff, Sullivan, by name and that 
the ad is not published of and concerning him. Now, the 
law does not always require the person suing for damages 
in a libel case to be named by name because sometimes the 
alleged libelous matter may be directed at a group or the 
class of people of which the plaintiff says he is a member, 
but in such a case where the libel is addressed to a class or 
a group the party suing, that is, the plaintiff, Sullivan, as 
a member of the group referred to must show by the evi­
dence to your reasonable satisfaction that the words ob­
jected to were spoken of and concerning him. The reason 
for this being that while any one of a class or group may 
maintain an action because of alleged libelous words, he 
must show to the reasonable satisfaction of the jury that the 
words he complained of apply especially to him or are pub­
lished of and concerning him. Now, when matter alleged to 
be libelous is published, you are not to read it critically but 
you read it as the average, reasonable and normal person 
of ordinary intelligence in the community, the place, the 
city of Montgomery would read this advertisement. Now, 
with reference to the publication I will say this. The pub­
lication of defamatory material in the legal sense is a com­
munication, the passing on of this material to any person 
or persons other than the person who is bringing the suit. 
If the communication is in written form it would be libel 
instead of a slander. I f I said something to you orally or 
said something about you orally—we call that a slander but 
if I read it, print it, or put it in a cartoon, then we call that 
libel. Every person who has any part in such a publication, 
that is, a written communication, except a disseminator, 
is held to be strictly libel. Now, the general rule of laAV is 
that if a libel is directed at a group or a class of people it 
can form the basis of a law suit by an individual member 
of that group provided that he can show that although he 
is not called by name, while he is not mentioned by name, in 
that advertisement, yet a person in the place of publication, 
Montgomery, reading it, can readily identify the plaintiff 
as the person spoken of and concerned by the publication. 
So, at the very outset of your deliberations you come to



94

this question. Were the words complained of in Counts 1 
and 2 of this Complaint spoken of and concerning the plain­
tiff, Sullivan? That’s the burden he has. He must show that 
to your reasonable satisfaction and if the evidence in this 
case does not reasonably satisfy you that the words pub­
lished were spoken of or concerning Sullivan or that they 
related to him, why then of course he would not be entitled 
to any damages and you would not go any further. Now, 
the plea filed by the defendants in this case or what we call 
the general issue, raises the question of the truth of the 
things published. Now, we have a law in Alabama that in an 
action of this kind the truth of the words written or pub­
lished, or the circumstances under which they were pub­
lished, may be given in evidence under the plea of the 
general issue in mitigation of damages. Those are the 
words of the statute.

Now, the Court is of the opinion and so charges you, 
gentlemen of the jury, that the matter complained of in 
Plaintiff’s Exhibit No. 347, that’s the controversial ad 
which you will have before you, and parts of which are set 
out in the Counts here in the Complaint, belongs to that 
class of defamation called in law, libel per se. Now, defam­
atory words to be actionable per se are those which on their 
face and without the aid of any other evidence or any other 
extrinsic proof are recognized by the law as being injurious. 
Writings libelous per se carry the presumption of falsity 
and of malice. Now, in the case of words actionable per se, 
that is, actionable by themselves, their injurious character 
is a fact of common notoriety, established by the general 
consent of men. The libel in a case of this kind is such that 
in the natural and proximate consequences it will neces­
sarily cause injury and damage to the person concerned in 
his official, public or social relations. And the law in such 
a case implies legal injury from the bare fact of publication 
itself. We can say, as part of the law in this case, that a 
publication is libelous per se when they are such as to 
degrade the plaintiff in the estimation of his friends and the 
people of the place where he lives, as injure him in his 
public office, or impute misconduct to him in his office, or



95

want or official integrity, or want of fidelity to a public 
trust or such as will subject the plaintiff to ridicule or pub­
lic distrust. All these kind of charges are called, libelous 
per se.

Now, gentlemen of the jury, the publication under con­
sideration by you is not what we call a privileged com­
munication, but it is unprivileged. That is, the publication 
wras not made in the performance of some duty, political, 
judicial, or the like. So in a case of the kind that we have 
here, where the Court charges you that this libelous matter 
is libelous per se, then falsity and malice are presumed. 
General damages need not be alleged or proved but are pre­
sumed and any allegation in the Complaint of specific 
damages is not necessary. Punitive damages are available 
to the plaintiff and the Plea of the General Issue merely 
puts on the plaintiff, Sullivan, the burden of reasonably 
satisfying you of the publication of the matter in the ad­
vertisement by the defendants and that this publication 
was of and concerning him and was aimed at him.

Now, it is the contention of the plaintiff here that 
although you may believe, as to the four individual de­
fendants, that they did not sign this advertisement and did 
not authorize it, yet it is the contention of the plaintiff, 
Sullivan, that the four individuals the four individual de­
fendants after knowing of the publication of the advertise­
ment and after knowing of its content, ratified the use of 
their names, that is, that they approved and sanctioned this 
advertisement. In other words, the plaintiff, Sullivan, in­
sists that there was a ratification of the advertisement and 
the use of their names as signers of the advertisement by 
the four individual defendants and we here define ratifica­
tion as the approval by a person of a prior act which did 
not bind him but which was professedly done on his account 
or in his behalf whereby the act, the use of his name, the 
publication, is given effect as if authorized by him in the 
very beginning. Ratification is really the same as a previous 
authorization and is a confirmation or approval of what has 
been done by another on his account. Now, it is for you 
twelve jurors to say from all the evidence whether the four



96

defendants ratified the advertisement now before you, that 
is, ratified that advertisement as I have defined the word 
ratification to you.

Now, gentlemen of the jury, if you are reasonably satis­
fied from the evidence before you, considered in connection 
with the Rules of Law the Court has stated to you, and you 
and I both have a part in rendering whatever judgment 
may be made in this case. You twelve men are what we call 
the finders of fact, the triers of the facts and I want you 
to know that every disputed question of fact in this case is 
left to you and as the Judge presiding at the trial of this 
case I do not have any opinion whatsoever about the facts 
of this case, and if I did, it would be highly improper for 
me to express that opinion in this case. So I leave every 
one of the disputed facts in this case to you. So, as I said, 
if you are reasonably satisfied from the evidence before 
you, considered in connection with the Rules of Law the 
Court has stated to you, you would come to consider the 
question of damages and, where as here, the Court has ruled 
the matter complained of proved to your reasonable satis­
faction and aimed at the plaintiff in this case, is libelous 
per se then punitive damages may be awarded by the jury 
even though the amount of actual damages is neither found 
nor shown. Now, what do we mean by punitive damages? 
Well, gentlemen of the jury, that word, punitive, really 
defines itself. It is something like a definition of reason­
able doubt. By punitive damages, we mean such damages 
as are given as a kind of punishment to a defendant with 
a view of preventing similar wrongs in the future. Punitive 
damages are awarded on the theory that they will deter 
the defendant from making a like publication and will also 
deter all other persons similarly situated if they hear about 
it from making a like publication.

Now, gentlemen of the jury, if after a careful considera­
tion of all the evidence in this case under the rules of law 
I have just laid down to you and these rules of law you will 
follow in your deliberations and they will guide you in 
arriving at whatever verdict you may come to. Now, in case 
you find for the plaintiff, and you understand that under our



97

system here in America, all twelve of you must agree on the 
verdict, you will write this kind of verdict if you find for the 
plaintiff. We, the jury, find in favor of the plaintiff and 
assess his damages at so many dollars, not exceeding the 
amount claimed. It may be that you are reasonably satisfied 
from the evidence here that you ought to have a verdict 
against the corporate defendant, against The New York 
Times Company, but not against the four individual de­
fendants. Then, if that is the case, you would render this 
kind of a verdict. We, the jury, find in favor of the plaintiff 
against the defendant, The New York Times Comany, a 
corporation, and assess his damages at so many dollars. 
We further find in favor of the other defendants, Ralph D. 
Abernathy, Fred L. Shuttlesworth, S. S. Seay, Sr. and 
J. E. Lowery. On the other hand, if the plaintiff in this case 
has not reasonably satisfied you from all of the evidence 
of the truth of the allegations contained in his complaint or 
of any one count thereof, then the defendant would be 
entitled to the verdict and you would write this kind of 
verdict. We, the jury, find for the plaintiff. You may let any 
one of your number act as foreman and I am going to let 
you take all three of these verdicts out with you and you 
may sign any one you find to be proper under the evidence 
and under the law, and as I stated, the verdict must be the 
concurrent action of all twelve of you men sitting on the 
jury.

*  *  #  #  #

Given Charges R equested B y  the Defendant 
N ew  Y ork T imes

The following written charges were requested by the de­
fendant, T he N ew  Y ork T imes Company, a Corporation, 
and given by the Court in writing, v iz :

“ 6. I charge you, gentlemen of the jury, that after 
reading the advertisement published in the newspaper of 
the defendant, The New York Times Company, a corpora­
tion, and recalling the testimony in this case that it is your 
duty to determine whether, in fact, that advertisement pub­
lished in the defendant, The New York Times Company, a



98

corporation’s newspaper intended to and does identify the 
plaintiff, and I further charge you that the plaintiff in this 
case has the burden of reasonably satisfying you by a fair 
preponderance of the evidence that the advertisement does 
in fact identify him, and if you find from the evidence that 
the plaintiff has failed to meet this burden, then I charge 
you that your verdict must be for the defendant, The New 
York Times Company, a corporation.”

Given, Jones, Judge

“ 7. I charge you, gentlemen of the jury, that if you find 
from the evidence that the advertisement complained of 
by plaintiff relates to a person or persons other than the 
plaintiff and does not concern plaintiff, then I further 
charge you your verdict must be for the defendant, The 
New York Times Company, a corporation.”

Given, Jones, Judge

“ 12. I charge you, gentlemen of the jury, that com­
pensatory damages, if awarded at all, must be fixed at such 
a figure as the jury dispassionately and according to the 
evidence in this case finds to be commensurate with the 
injury actually sustained by the plaintiff.”

Given, Jones, Judge

“ 13. I charge you, gentlemen of the jury, that the 
right, if any, to recover compensatory damages does not 
necessarily imply a right to recover substantial damages.”

Given, Jones, Judge

“ 19. I charge you, gentlemen of the jury, that for the 
purpose of rebutting and repelling the idea of malice, the 
defendant, The New York Times Company, a corporation, 
has the right to prove and explain all the facts and circum­
stances surrounding the publication of the advertisement 
complained of by plaintiff in his complaint.”

Given, Jones, Judge

“ 20. I  charge you, gentlemen of the jury, that unless 
the statements contained in the advertisement of March



99

29, 1960, published in the newspaper of the defendant, The 
New York Times Company, a corporation, were directed 
against the plaintiff, then this advertisement does not 
afford plaintiff a basis for recovery in this case against 
the defendant, The New York Times Company, a corpo­
ration. ’ ’

Given, Jones, Judge

“ 21. I charge you, gentlemen of the jury, if you believe 
from the evidence that the advertisement of March 29, 
1960 was directed at others than the plaintiff and not at 
the plaintiff, then such advertisement cannot afford the 
plaintiff a basis of recovery in this case.”

Given, Jones, Judge

“ 29. I charge you, gentlemen of the jury, that should 
you reach the point in your deliberation as to the assess­
ment of punitive damages, if you have found that the adver­
tisement published by the defendant New York Times 
Company and complained of by the plaintiff was of and 
concerning the plaintiff and was libelous, then you must 
consider in mitigation of such damages all the circum­
stances under which the advertisement was published which 
have been given in evidence.”

Given, Jones, Judge

“ 30. I charge you, gentlemen of the jury, that in this 
case the defendant has entered a plea of the general issue; 
that is to say that the burden of proof in the first instance 
is on the plaintiff to show to your reasonable satisfaction 
by a preponderance of the evidence that the advertisement 
printed by the defendant New York Times Company was 
published by the defendant New York Times Company of 
and concerning the plaintiff. I f you find from the evidence 
that the advertisement was not published of and concerning 
the plaintiff, then your verdict must be for the defendant 
New York Times Company.”

Given, Jones, Judge



1 0 0

“ 31. I charge you, gentlemen of the jury, that should 
you reach the point in your deliberation as to the assess­
ment of compensatory or actual damages, if you have found 
that the advertisement published by the defendant New 
York Times Company and complained of by the plain tiff 
was of and concerning the plaintiff and was libelous, then 
the burden is on the plaintiff to prove to your reasonable 
satisfaction by a preponderance of the evidence the items 
of actual or compensatory damage that he claims to have 
suffered, and you are further instructed that this amount 
may be nominal.”

Given, Jones, Judge

“ 32. I charge you, gentlemen of the jury, that the 
burden is on the plaintiff to prove to your satisfaction by 
a fair preponderance of the evidence that the advertise­
ment complained of by the plaintiff was published by the 
New York Times Company of and concerning him.”

Given, Jones, Judge

“ 33. I charge you, gentlemen of the jury, that the 
burden is on the plaintiff to prove to your satisfaction 
by a fair preponderance of the evidence that the advertise­
ment complained of by the plaintiff as published by the 
New York Times Company referred to some ascertained 
or ascertainable person and that person must be the 
plaintiff. ’ ’

Given, Jones, Judge

“ 34. I charge you, gentlemen of the jury, that you 
must be reasonably satisfied from the evidence that the 
advertisement complained of by the plaintiff was published 
by the New York Times Company with reference to and 
concerning the plaintiff.”

Given, Jones, Judge

“ 37. I charge you, gentlemen of the jury, that before 
the plaintiff can recover in this case, he must reasonably 
satisfy you from the evidence that the advertisement pub-



1 0 1

fished by the New York Times Company and complained 
of in his complaint definitely and specifically referred to 
and concerned him.”

Given, Jones, Judge

“ 38. I charge you, gentlemen of the jury, that before 
the plaintiff can recover in this case, he must reasonably 
satisfy you from the evidence that the advertisement pub­
lished by the New York Times Company and complained of 
in his complaint with a reasonable degree of certainty re­
ferred to and concerned the plaintiff.”

Given, Jones, Judge

“ 39. I charge you, gentlemen of the jury, that should 
you reach the point in your deliberations as to the assess­
ment of compensatory damages, then you cannot consider 
in such assessment of damages any repetitions of the ad­
vertisement complained of by the plaintiff unless you are 
reasonably satisfied from the evidence that such repetition 
was done at the instance of the defendant New York 
Times Company.”

Given, Jones, Judge

“ 40. I charge you, gentlemen of the jury, that as a 
matter of law no cause of action for libel can be predicated 
upon a publication of the alleged libel which has been in­
duced, procured or consented to by the plaintiff. Therefore 
if you believe from all the evidence, that the testimony of 
any witness was based upon his reading of the advertise­
ment complained of here, only after having been shown a 
copy of same by the plaintiff or his attorneys, you must 
disregard that testimony entirely.”

Given, Jones, Judge

“ 41. I charge you, gentlemen of the jury, that should 
you reach the point in your deliberations as to the assess­
ment of punitive damages, then you cannot consider in such 
assessment of punitive damages any repetitions by others 
of the advertisement complained of by the plaintiff unless



1 0 2

you are reasonably satisfied from the evidence that such 
repetition was done at the instance of the defendant New 
York Times Company.”

Given, Jones, Judge

“ 42. I charge you, gentlemen of the jury, that should 
you reach the point in your deliberations as to the assess­
ment of punitive damages, then you cannot consider in such 
assessment of punitive damages any repetitions of the 
advertisement complained of by the plaintiff unless you 
are reasonably satisfied from the evidence that such repeti­
tion was done at the instance of the defendant New York 
Times Company, a corporation.”

Given, Jones, Judge

“ 43. 1 charge you, gentlemen of the jury, that should 
you reach the point in your deliberations as to the assess­
ment of compensatory damages, then you cannot consider 
in such assessment of damages any repetitions by others of 
the advertisement complained of by the plaintiff unless you 
are reasonably satisfied from the evidence that such repeti­
tion was done at the instance of the defendant New York 
Times Company, a corporation.”

Given, Jones, Judge

“ 44. I charge you, gentlemen of the jury, that if you 
believe from all the evidence that the words contained in 
the advertisement complained of are so vague and uncertain 
that they could not have been intended to refer to any 
particular person then your verdict must be in favor of the 
defendant, The New York Times Company, a corporation.”

Given, Jones, Judge

“ 45. 1 charge you, gentlemen of the jury, that in this 
case, the defendant New York Times Company has entered 
a plea of the general issue; that is to say that the defendant 
New York Times Company has denied that the advertise­
ment complained of by the plaintiff in his complaint was 
published of and concerning him, and therefore the plaintiff



103

must prove to your reasonable satisfaction and by a pre- 
ponderence of all the evidence that the advertisement com­
plained of by the plaintiff was published of and concerning 
him. ’ ’

Given, Jones, Judge

“ 51. I charge you, gentlemen of the jury, that before 
the plaintiff is entitled to a verdict under count two of the 
complaint, the burden is on the plaintiff to reasonably 
satisfy you from the evidence of the truth of every material 
allegation contained in count two of the complaint.”

Given, Jones, Judge

“ 52. I charge you, gentlemen of the jury, that before 
the plaintiff is entitled to a verdict under count one of the 
complaint, the burden is on the plaintiff to reasonably 
satisfy you from the evidence of the truth of every material 
allegation contained in count one of the complaint.”

Given, Jones, Judge

“ 53. I charge you, gentlemen of the jury, that you are 
not bound to accept the opinion of any witness who has 
testified in this case, but if any witness has testified to his 
opinion on any material issue in this case you may give 
his testimony such weight and credence as you see fit when 
taken in connection with all the facts and circumstances as 
shown by all the evidence in the case.”

Given, Jones, Judge

“ 54. I charge you, gentlemen of the jury, that there 
has been evidence in the nature of opinion evidence intro­
duced by the plaintiff on the issue of whether or not the 
statements in the advertisement complained of were written 
of and concerning the plaintiff and I further charge you 
that you are not bound to accept the opinion of any witness 
but you may give that evidence such weight and credence as 
you see fit when taken in connection with all the facts and 
circumstances as shown by all the evidence in the case.”

Given, Jones, Judge



104

“ 56. I charge you gentlemen of the jury, that L. B. 
Sullivan is the only plaintiff in this case and you may not 
return a verdict in favor of L. B. Sullivan unless you find 
from all the evidence that the statements contained in the 
advertisement complained of, referred to L. B. Sullivan.”

Given, Jones, Judge

“ 57. I charge you, gentlemen of the jury, that mere 
negligence or carelessness is not evidence of actual malice 
or malice in fact, and does not justify an award of ex­
emplary or punitive damages in an action for libel.”

Given, Jones, Judge

“ 58. I charge you, gentlemen of the jury, that even 
though you should find from the evidence that the article 
in question is libelous; and that it was published by the 
defendant, The New York Times Company, a corporation, 
with an intent to defame the plaintiff, you are instructed 
that it does not follow as a matter of law that plaintiff 
should be allowed anything by way of punitive or ex­
emplary damages; for the granting of punitive or ex­
emplary damages is, even though you find an intent to 
defame, within the discretion of the jury; and you are 
further instructed that even on the clearest proof of malice 
in fact, it is still your exclusive province to say whether or 
not punitive or exemplary damages shall be awarded; for 
plaintiff is entitled to punitive damages only when the jury 
shall, after having found that the article in question was 
published with an intent to defame the plaintiff, conclude in 
the exercise of its discretion that such damages ought to be 
allowed.”

Given, Jones, Judge

“ 61. I charge you, gentlemen of the jury, that if you are 
reasonably satisfied from all the evidence that damages 
should be awarded to the plaintiff you may in fixing the 
amount of such damages consider the fact that only 35 
copies of the defendant NeAv York Times, a corporation’s 
newspaper, are distributed daily in Montgomery County.”

Given, Jones, Judge



APPENDIX C



J H E  N g w  Y O R K  T I M E S ,  T U E S D A Y .  M A R C H  29 , 1960 . 25

105

APPENDIX C

u

Heed 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 heard

—New York Times editorial 

Saturday, March 19, 1960

ismgVoioices
A A S  the whole world knows by now, thousands of 

■L Southern Negro students are engaged in wide­
spread non-violent demonstrations in positive affirma­
tion of the right to live in human dignity as guaranteed 
by the U. S. Constitution and the Bill of Rights. 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.. . .

In Orangeburg, South Carolina, when 400 students 
peacefully sought to buy doughnuts and coffee at lunch 
counters in the business district, they were forcibly 
ejected, tear-gassed, soaked to the skin in freezing 
weather with fire hoses, arrested en masse and herded 
into an open barbed-wire stockade to stand for hours 
in the bitter cold.

In Montgomery, Alabama, after students sang 
“M y Country, ’Tis of Thee” on the State Capitol steps, 
their leaders were expelled from school, and truck- 
loads of police armed with shotguns 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 pad­
locked in an attempt to starve them into submission.

In Tallahassee, Atlanta, Nashville, Savannah, 
Greensboro, Memphis, Richmond, Charlotte, and a 
host of other cities in the South, young American teen­
agers, in face of the entire weight of official state appa­
ratus and police power, have boldly stepped forth as

protagonists of democracy. Their courage and amaz­
ing restraint have inspired millions and given a new 
dignity to the cause of freedom.

Small wonder 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. Small wonder that they are 
determined to destroy the one man who, more than 
any other, symbolizes the new spirit now sweeping the 
South—the Rev. Dr. Martin Luther King, Jr., world- 
famoiis leader of the Montgomery Bus Protest. For it 
is his doctrine of non-violence which has inspired 
and guided the students in their widening wave of sit- 
ins; and it this same Dr. King who founded and is 
president of the Southern Christian Leadership Con­
ference—the organization which is spearheading the 
surging right-to-vote movement. Under Dr. King’s 
direction the Leadership Conference conducts Stu­
dent Workshops and Seminars in the philosophy and 
technique of non-violent resistance.

Again and again the Southern violators have 
answered Dr. King’s peaceful protests with intimida­
tion 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. 
Obviously, their real purpose is to remove him physi­
cally 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. 
Their strategy is to behead this affirmative movement, 
and thus to demoralize Negro Americans and weaken 
their will to struggle. The defense of Martin Luther 
King, spiritual leader of the student sit-in movement, 
clearly, therefore, is an integral part of the total 
struggle for freedom in the South.

Decent-minded A m ericans cannot help but 
applaud the creative daring of the students and the 
quiet heroism of Dr. King. But this is one of those 
moments in the stormy history of Freedom when men 
and women of good will must do more than applaud 
the rising-to-glory of others. The America whose good 
name hangs in the balance before a watchful world, 
the America whose heritage of Liberty these Southern 
Upholders of the Constitution are defending, is our 
America as well as theirs . . .

We must heed their rising voices—yes—but we 
must add our own.

We must extend ourselves above and beyond 
moral support and render 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 
Constitution and its Bill of Rights.

We urge you to join hands with our fellow Amer­
icans in the South by supporting, with your dollars, 
this Combined Appeal for all three needs—the defense 
of Martin Luther King—the support of the embattled 
students—and the struggle for the right-to-vote.

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

Stella Adler
Raymond Pace Alexander 
Harry Van Arsdale 
Harry Belafonte 
Julie Belafonte 
Dr. Alsernon 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 

Fosdick

Anthony Franciosa 
Lorraine Hansbury 
R e v . Donald Harrington 
Nat 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 
Sidney Poilier 
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 P l e a s e  m a l l  t h i s  c o u p o n  T O D A Y !

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 
(M obile, Ala.)

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

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. Philip Randolph, Dr. Gardner C. Taylor; Chairmen of Cultural Division: Harry Belafonte, Sidney 
Poitier; Treasurer: Nat King Cole; Executive Director: Bayard Rustin; Chairmen of Church Division: Father George 
B. Ford, Rev. Harry Emerson Fosdick, Rev. Thomas Kilgore, Jr., Rabbi Edward E. Klein; Chairman of Labor Divi­
sion: Morris lushewitz

r — — — ---------------------------i
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

/ am enclosing my contribution of $________________________  ■
for the work of the Committee. "

X h m

(PLEASE PRINT)

Address_______________________________________________________________________________________ ■

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j I went to help J [ Please tend further information

Please make checks payable to: 

Committee To Defend Martin Luther King