United States' Motion and Memorandum for Leave to File Brief as Amicus Curiae

    THE STATE OF SOUTH CAROLINA  

In The Supreme Court

Appeal From Sumter County 

Hon. William H. Grimball, Judge

SHEPARD K. NASH,

against
Respondent,

H P. SHARPER, B. T. WILLIAMS, S. T. ROBINSON, 
J. H. NELSON, L. J. PETERSON, J. J. BURRELL, 
F. C. JAMES, I. DeQUINCY NEWMAN, E. M. MCDON­
ALD, EDWARD C. JONES, SR., S. J. McDONALD, SR„ 
JAMES DANIELS, and the NATIONAL ASSOCIATION 
FOR THE ADVANCEMENT OF COLORED PEOPLE, 
SUMTER CHAPTER, AN UNINCORPORATED ASSO­
CIATION,

Appellants.

BRIEF OF APPELLANTS

L incoln C. Jenkins, Jr., 
Columbia, S. C.

Robert L. Carter,
o f Counsel.

Supreme Printing Co., In c , 114 W orth Street, N. Y. 13, BEekman 3-2320



Questions Involved

Whether Judge Grimball erred in overruling the 
demurrer of the defendants on the grounds that:

(1) the complaint failed to set forth facts sufficient to 
constitute a cause of action for the reason that the alleged 
libelous statement is stated in the alternative;

(2) it does not appear upon the face of the complaint 
that the alleged libelous statement was published of and 
concerning the plaintiff;

(3) it does not appear upon the face of the complaint 
that the alleged libelous statement is capable of being 
construed as libelous;

(4) it does not appear upon the face of the complaint 
that the alleged libelous statement was published of and 
concerning the plaintiff in his professional capacity as an 
attorney at law.



2

BRIEF OF ARGUM ENT

1. The demurrer should have been sustained for 
the reason that the alleged libelous statement is stated 
in the alternative.

The outstanding authorities on the law of libel and 
slander concur in holding that an alleged libelous state­
ment in the alternative is not actionable unless both alter­
natives are defamatory. Perhaps the leading authority on 
libel is Newell. In his 4th edition, section 234, page 273, 
he states the rule as follows:

“ Where a charge is made in the alternative, ordinar­
ily both alternatives must be defamatory to render 
the charge actionable.”

Cases cited in support thereof are Blackwell v. Smith, 8 
Mo. App. 43 and Lukehart v. Byerly, 53 Pa. 418. These 
cases involve such statements as “ you are either a thief 
or you got the book from a thief”  (Blackwell v. Smith, 
supra), and “ the said Blackwell had ‘ taken apples’ or 
had ‘ stolen apples’ or had ‘ taken apples without asking 
for them’ ”  (Lukehart v. Byerly, supra). Both cases, of 
course, hold that the statements made in the alternative 
are not actionable.

Other eminent authority on general American law, 
Corpus Juris Secundum holds: “ Generally an imputation 
in alternative form is actionable only when both alterna­
tives are defamatory, and if either alternative statement 
is harmless the charge is not actionable.”  In Atkinson v. 
Hartley, 1 McCord 203, 12 S. C. L. 203 this Court held: 
“ To render words actionable they must be spoken affirma­
tively and import a direct charge . . .  It follows, therefore, 
that those that are equivocal and spoken adjectively are 
not so.”  That case involved equivocal evidence as to 
whether the defendant had made a charge against plaintiff



3

which was actionable or had made a charge in somewhat 
different terms which would not be actionable. Bull v. 
Collins, 54 S. W. 870 (Texas) holds as do the above cases.

The record, on the face of the complaint clearly shows 
that the statement does not import a direct charge. The 
statement is:

“  ‘ He not only signed after reading the peti­
tion, but on one occasion directed others how to 
sign them. Either he is double-talking or the officials 
who released his statements to the press are word­
ing these retroactions to fit the Citizens’ Commit­
tees’ ”  (E. 3).

It thus says of one Blanding (who is not a party herein) 
that he is “ double-talking”  and then states in the alter­
native that if he is not, certain “ officials”  (in which cate­
gory plaintiff seeks to include himself) are wording “ these 
retroactions (sic) to fit the Citizens’ Committee.”  There­
fore, the alleged defamatory statement is in the alterna­
tive. One alternative is not even alleged to be actionable 
by plaintiff. The case falls squarely within the general 
American rule that statements in the alternative are not 
actionable unless both alternatives are actionable. It is 
appellants’ position that neither alternative herein is ac­
tionable, but certainly both alternatives can hardly be 
actionable as to the plaintiff herein.

2. The demurrer should have been sustained for 
the reason that it does not appear upon the face of the 
complaint that the alleged statement was published of 
and concerning the plaintiff.

The complaint, of course, contains an averment and 
certain allegations which purport to identify the plaintiff 
as the person concerning whom the allegedly libelous state­
ment was made.



4

But a mere conclusion, even if supported by allega­
tions which purport to support it, cannot make a case of 
actionable wrong where this Court can clearly see on the 
complaint’s face that no reasonable man could determine 
that the allegedly libelous remarks were made of and 
concerning plaintiff. As this Court held in Oliveros v. 
Henderson, 116 S. C. 77, 106 S. E. 865:

“ The demurrers admit the facts alleged in the 
complaint, but do not admit the inferences drawn 
by plaintiffs from such facts, and it is for the Court 
to determine as to whether or not such inferences 
are justifiable; that is, to determine if the language 
used in the publication can fairly and reasonably 
be construed to have the meaning attributed to it 
by the plaintiff.”  (Italics added.)

In Phillips v. Union Indemnity Company, 28 F. 2d 701, it 
was held that on demurrer it is for the court to determine 
whether the innuendo is fairly warranted by the language 
declared in it. See also Stokes v. Great Atlantic and Pacific 
Tea Company, 202 S. E. 24. Here that alternative which 
supposedly refers to plaintiff is “ or the officials who 
released his statements to the press are wording these 
retroactions to fit the Citizens’ Committee”  (R. 3).

The complaint itself does not allege that plaintiff is an 
“ official”  of the School Board of School District # 2  or 
School District #17. It does not allege that he is an 
official of anything. On the contrary, it alleges that his 
relation with these School Boards was that of counsel. 
“ The relationship of attorney and client is that of prin­
cipal and agent or master and servant; that is, apart from 
his connection with existing litigation, an attorney is a 
mere agent. An attorney is not, however, completely sub­
ordinate to his client as the ordinary agent is to his prin­
cipal. . . . ”  5 Am. Jur. 286. It would be laboring the 
obvious before any Court to elaborate on the proposition



5

that counsel employed by a School Board cannot even 
remotely be considered an official of that Board.

Moreover, the allegedly libelous statement speaks in 
the plural of “ officials” , a large class of persons, at least 
extending to the members of the School Boards mentioned 
in the complaint and their executive officers. The com­
plaint attempts to fly in the face of the obvious facts ap­
pearing upon it by attempting to stretch the word “ offi­
cials”  to include plaintiff; and by attempting to narrow 
a general class of which plaintiff is not a member, down 
to a single individual.

If this complaint is permitted to stand then any obvi­
ously non-applicable statement can be set before a jury 
despite the fact that the statement as it appears in the 
complaint flatly contradicts the interpretation placed upon 
it by the plaintiff.

3. The demurrer should have been sustained be­
cause it does not appear upon the face of the complaint 
that the allegedly libelous statement is capable of being 
construed as libelous.

Granting arguendo, for the moment, that a case can be 
made out for the proposition that (a) a statement in the 
alternative where one alternative is not even alleged to be 
libelous, can be made actionable and (b) that a statement 
made clearly not of and concerning the plaintiff can be 
made actionable in the face of the plain unequivocal lan­
guage of the statement, appellants submit that the state­
ment itself is innocuous.

The alleged libelous statement as it purportedly refers 
to plaintiff is that “ the officials who released the statements 
to the press are wording these retroactions to fit the Citi­
zens’ Committee.”  In this age of widely disseminated 
news and great public interest in public affairs all parties



6

to issues of public interest seek to win its favor. Press 
releases, press conferences, interviews, letters to the edi­
tor, have perhaps unfortunately, perhaps fortunately, 
found a permanent place in American life. Everyone 
realizes perfectly well that statements issued to the press 
are made to “ put one’s best foot forward.”  The language, 
the timing, the balance, are all designed to present a point 
of view. To state that anyone who participates in the 
wording of a statement which may be released to the press 
has slanted it to fit a point of view is to state something 
at which no one would be surprised. No one would dream 
of alleging that it is libelous to state that James Hagerty, 
has worded a statement to suit the Republican Party or 
that Paul Butler, the Democratic National Chairman has 
worded a statement to suit the Democratic Party. Of 
spokesmen on any issue, great or small, national or local, 
to state that they have worded statements to suit those 
with whom they are associated or with whom they sym­
pathize, is to state something entirely natural and accepta­
ble. Surely the allegedly libelous statement in this case 
states nothing other than what all Americans would accept 
today and is not capable of being construed as libelous.

4. The demurrer should have been sustained for 
the reason that it does not appear upon the face of the 
complaint that the allegedly libelous statement is 
capable of being construed as libelous concerning the 
plaintiff in his professional capacity as attorney at law.

Quite apart from the fact that the allegedly libelous 
statement does not even refer to the plaintiff it clearly 
appears that it does not refer to him or, indeed, to anyone 
else in the capacity of attorney at law. This statement 
merely refers to someone who worded a statement which 
was released to the press. If anything, it may taken to 
refer to a public relations or public information official or



7

to some kind of school board functionary. It is not the 
duty or employment of an attorney at law to release state­
ments, and it cannot be considered harmful for an attorney 
(surely one never identified as such) to receive comment 
on something allegedly done not in the capacity of attorney.

Conclusion

Here we have a statement made in the alternative with­
out it even being alleged (it could not be) that both alterna­
tives are libelous. It nowhere appears on the face of the 
complaint that the alleged libelous statement was published 
of and concerning the plaintiff; indeed the plain language 
of the complaint indicates it was made concerning a num­
ber of persons with characteristics plaintiff clearly does 
not possess. The allegedly libelous alternative is on its 
fact innocuous and harmless. It was not made concerning 
anyone in the capacity of attorney at law.

The complaint is composed of hypothesis upon hypothe­
sis, each without substance. Such a tenuous concatenation 
of assumptions does not merit the sustaining of the com­
plaint or submission of the cause to a jury.

Wherefore appellants respectively submit that the 
demurrer should have been sustained.

Respectfully submitted,

R obert L. Carter,
Of Counsel.

L incoln Jenkins, 
Columbia, S. C.