if they subject the publisher to foreign jurisdic- tion on the grounds and of the scope asserted here. The decision is, accordingly, repugnant to the First Amendment. This Court has often held state action inconsistent with the First Amendment, as embodied in the Fourteenth, when it has “the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it” (Smith v. California, 361 U.S. 147, 151 [1959])—though the action is otherwise consistent with the Constitution. Scienter is not generally deemed a constitutional prerequisite to criminal conviction, but a measure of liability for the possession of obscene publications was invalidated on this ground in Smith because of its potential impact on the freedom of booksellers. The allocation of burden of proof in establishing a right to tax- exemption fell in Speiser v. Randall, 357 U.S. 513 (1958) because it was considered in the circumstances to “result in a deterrence of speech which the Constitution makes free.” Id. at 526. Compulsory disclosure requires a showing of a more compelling state interest when it tends to inhibit freedom of association than in other situations where disclosure may be forced (see, e.g., Gibson v. Florida Legislative Comm., 372 U.S. 539 [1963 ]; Talley v. California, 362 U.S. 60 [ 1960]); and its extent may be more limited. Shelton v. Tucker, 364 U.S. 479 (1960). Regulation of the legal profession that would raise no question as applied to the solicitation of commercial practice must comply with stricter standards insofar as it inhibits associa- tion for the vindication of fundamental rights. N.A.A.C.P. v. Button, 371 U.S. 415 (1963). The principle involved in these familiar illustrations plainly applies here. If a court may validly take jurisdiction of a libel action on the basis of sporadic newsgathering by correspon- dents and trivial circulation of the publication in the State, it can and will do so not only when the plaintiff has a valid cause of action but also when the claim is as unfounded and abusive as the claim presented here. The burden of defense in a community with which the publication has no meaningful connection and the risk of enormous punitive awards by hostile juries cannot be faced with equanimity by any publisher. The inevitable consequence must be the discontinuance of the activities contributing to the assumption of the jurisdiction. The interest of a State in affording its residents the most convenient forum for the institution of such actions cannot justify this adverse impact on the freedom that the First Amendment has explicitly secured. See also pp. 83–84, supra. The occasional solicitation of advertising in the State, being wholly unrelated to respondent’s cause of action, does not augment the interest of the State in providing the forum challenged here. CONCLUSION For the foregoing reasons, the judgment of the Supreme Court of Alabama should be reversed, with direction to dismiss the action. Respectfully submitted, LOUIS M. LOEB T . ERIC EMBRY MARVIN E . FRANKEL RONALD S . DIANA DORIS WECHSLER LORD , DAY & LORD BEDDOW , EMBRY & BEDDOW Of Counsel HERBERT BROWNELL THOMAS F . DALY HERBERT WECHSLER Attorneys for Petitioner The New York Times Company APPENDIX A CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Constitution of the United States Article I, Section 8: The Congress shall have power * * * To regulate Commerce with foreign Nations, and among the several States * * *. ***** Amendment 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. ***** MILESTONES IN THE LAW NEW YORK TIMES V. SULLIVAN 317 U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR THE PETITIONER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Amendment XIV Section 1. All persons born or naturalized in the United States, and s ubject 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 privilege s or immunities of citizens of the United States; nor shall any State deprive any person of life, libe rty, or property, without due process of law; nor deny to any person within its juris diction 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 sum- mons that the person to whom delivered is the agent of the corporation shall be prima facie evidence of such fact and authorize judgment by default or otherwise without further proof of such agency and this fact need not be recited in the judgment entry. (1915, p. 607.) ***** 199(1). Service on non-resident doing business or performing work or service in state Any non-resident person, firm, partner- ship, 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 perform 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 accruing 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 employee.] 14 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 defendant at his last known address, which shall be stated in the affidavit of the plaintiff or complainant herein- after mentioned, marked “Deliver to Addressee Only” and “Return Receipt Requested ”, and provided further that such return receipt shall be received by the secretary of state purporting to have been signed by said non-resident, or the secretary of state shall be advised by the postal authority that delivery of said registered mail was refused by said non-resident; and the date on which the secretary of state receives said return receipt, or advice by the postal authority that delivery of said registered mail was refused, shall be treated and considered as the date of service of process on said non-resident. The secretary of state shall make an affidavit as to the service of said process on him, and as to his mailing a copy of the same and notice of such service to the non-resident, and as to the receipt of said return receipt, or advice of the refusal of said registered mail, and the respective dates thereof, and shall attach said affidavit, return receipt, or advice from the postal authority, to a copy of the process and shall return the same to the clerk or register who issued the same, and all of the same shall be filed in the cause by the clerk or register. The party to a cause filed or pending, or his agent or attorney, desiring to obtain service upon a non-resident under the provisions 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 14 Following the decision in New York Times Company v. Conner 291 F. 2d 492 (5th Cir. 1962) the statute was amended by substituting 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. 318 NEW YORK TIMES V. SULLIVAN MILESTONES IN THE LAW U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR THE PETITIONER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION process, and forward the original writ or process and three copies thereof to the sheriff of Montgomery 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 business, shall be deemed a non-resident within the meaning of this section, and service of process under such circumstances 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 defen- dant, 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 constituted 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 summ ons 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 defen- dants, 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 certificate 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.) MILESTONES IN THE LAW NEW YORK TIMES V. SULLIVAN 319 U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR THE PETITIONER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HEED THEIR RISING VOICES YOUR HELP IS URGENTLY NEEDED NOW!! k “The growing movement of peaceful mass demon- strations by Negroes is something new in the South. Let Congress heed their rising voices, for they will be heard.”–New York Times editorial Saturday, March 19, 1960. As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstra- tions in positive affirmation 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 guaran tees, 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 patte rn 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 “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled 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 attempted 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 teenagers, in face of the entire weight of official state apparatus and police power, have boldly stepped forth as protagonists of democracy. Their courage and amazing re- straint have inspired millions and given a new dignity to the cause of freedom. Small wonder that th e Southern violators of the Consti tution 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, symbo- lizes the new spirit now sweeping the South— the Rev. Dr. Martin Luther King, Jr., world- famous 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 [is] this same Dr. King who founded and is president of the Southern Christian leadership Conference— the organization which is spearheading the surging right-to-vote movement. Under Dr. King’s direction the Leadership Conference conducts Student 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 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. Obviously, their real purpose is to remove him physically as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimi- date 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 Americans 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 watchf ul world, the America whose heritage of Liberty these South- ern Upholders of the Constitution are defend- ing, is our America as well as theirs We must heed their rising voices—yes—but we must add our own. 320 NEW YORK TIMES V. SULLIVAN MILESTONES IN THE LAW COMMITTEE TO DEFEND MLK AND THE STRUGGLE FOR FREEDOM IN THE SOUTH GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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 Americans in the South by supporting, with your dollars, this Combined Appeal for al l three needs—the defense of Martin Luther King— the support of the embattled students—and the struggle for the right to vote. Stella Adler Raymond Pace Alexander Harry Can Arsdale Harry Belafonte Julie Belafonte Dr. Algernon Black Marc Blitztein William Branch Marlon Brando Mrs. Ralph Bunche Diahann Carroll Dr. Alan Knight Chalmers Richard Coe Nat King Cole Cheryl Crawford Dorothy Dandridge Ossie Davis Sammy Davis, Jr. Ruby Dee Dr. Philip Elliott Dr. Harry Emerson Fosdi ck Anthony Franciosa Lorraine Hansbury Rev. Donald Harrington Nat Hentoff James Hicks Mary Hinkson Van Heflin Langston Hughes Morris Lushewitz Mahalia Jackson Mordecai Johnson John Kill ens 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 Poitier A. Philip Randolph John Raitt Elmer Rice Jackie Robinson Mrs. Eleanor Roosevelt Bayard Rustin Robert Ryan Maureen Stapleton Frank Silvera Hope Stevens George Tabori Rev. Gardner C. Taylor Norman Thomas Kenneth Tynan Charles White Shelley Winters Max Youngstein WE IN THE SOUTH WHO ARE STRUGGLING DAILY FOR DIGNITY AND FREEDOM WARMLY ENDORSE THIS APPEAL Rev. Ralph D . A bernathy (Montgomery, Ala.) Rev. Fred L. Shuttlesworth (Birmingham, Al a.) Rev. Kelley Miller Smith (Nashville, Tenn.) Rev. W. A. Dennis (Chattanooga, Tenn.) Rev. C. K. Steele (Tallahassee, Fla.) Rev.MatthewD.McCollom(Orangeburg,S.C.) Rev. William Holmes Borders (Atlanta, Ga.) Rev. Douglas Moore (Durham, N. C.) Rev. Wyatt Tee Walker (Petersburg, Va.) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW NEW YORK TIMES V. SULLIVAN 321 COMMITTEE TO DEFEND MLK AND THE STRUGGLE FOR FREEDOM IN THE SOUTH Rev. Walter L. Hamil ton (Norfolk, Va.) I. S. Levy (Columbia, S. C.) Rev. Martin Luther King, Sr. (Atlanta, Ga.) Rev. Henry C. Bunton (Memphis, Tenn.) Rev. S. S. Seay, Sr. (Montgomery, Ala.) Rev. Samuel W. Williams (Atlanta, Ga.) Rev. A. L Davis (New Orleans, La.) Mrs. Katie E. Whickham (New Orleans, La.) Rev. W. H. Hall (Hattiesburg, Miss.) Rev. J. E. Lowery (Mobile, Ala.) Rev. T. J. Jemison (Baton Rouge, La.) COMMITTEE TO DEFEND MARTIN LUTHER KING AN D THE STRUGGLE FOR FREEDOM IN THE SOUTH 312 W EST 125TH STREET, NEW 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; Chair- men of Church Division: Father George B. Ford, Rev. Harry Emerson Fosdick, Rev. Thomas Kilgore, Jr., Rabbi Edward E. Klein; Chairman of Labor Division: Morris Iushewitz Original coupon omitted from advertisement. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 322 NEW YORK TIMES V. SULLIVAN MILESTONES IN THE LAW COMMITTEE TO DEFEND MLK AND THE STRUGGLE FOR FREEDOM IN THE SOUTH In the Supreme Court of the United States October Term, 1963 No. 39 THE NEW YORK TIMES COMPANY, PETITIONER, V. L. B. SULLIVAN, RESPONDENT ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA BRIEF FOR RESPONDENT STEINER, CRUM & BAKER, 1109-25 FIRST NATIONAL BANK BUILDING, MONTGOMERY 1, ALABAMA, CALVIN WHITESELL, MONTGOMERY, ALABAMA, OF COUNSEL. ROBERT E. STEINER III , SAM RICE BAKER, M. ROLAND NACHMAN JR., ATTORNEYS FOR RESPONDENT. k INDEX Questions Presented Statutes Involved Statement I. Merits II. Jurisdiction 1. General Appearance 2. Validity of Service of Process on The New York Times Summary of Argument Argument I. The Constitution Confers No Absolute Immu- nity to Defame Public Officials Libelous Utterances Have No Constitutional Protection The Advertisement Was Libelous Per Se Damages Awarded by the Jury May Not Be Disturbed II. There Is No Ground for Reviewing a Jury Determination That the Advertisement Was “Of and Concerning” the Plaintiff III. This Case Provides No Occasion for Excursions From This Record and From Accepted Consti- tutional Standards IV. The Times Was Properly Before the Alabama Courts Conclusion Certificate Appendix A k Respondent adopts petitioner’s statement of “Opinions Below” and “Jurisdiction.” QUESTIONS PRESENTED 1. Does a newspaper corporation have a constitutionally guaranteed absolute privilege to defame an elected city official in a paid newspaper advertisement so that the corpora- tion is immune from a private common law libel judgment in a state court in circumstances where, because of the admitted falsity of the publication, the newspaper is unable to plead or prove state afforded defenses of truth, fair comment, privilege or retraction (to show good faith and eliminate punitive damages), and where the corporation has retracted the same false material for another admittedly “on a par” with the city official? 2. When the only claimed invasion of a corporation’s constitutional rights is that a city official successfully sued it for damages in a private civil action for libel in a state court in circumstances described in Question 1, and when the corporation does not contend that the state trial proceedings have been unfair, has there been an abridgement of the corporation’s constitutional rights under the First and Four- teenth Amendments? 3. Are libelous uttera nces in a paid news- paper advertisement within the area of consti- tutionally protected speech and press? 4. When an admittedly false newspaper advertisement published in circumstances de- scribed in Question 1 charges that city police massively engaged in rampant, vicious, terroris- tic and criminal actions in deprivation of rights of others, is a state court holding in a private common law libel action that such an utterance is libelous as a matter of state law—leaving to the jury the questions of publication, identifi- cation with the police commissioner, and damages—an infringement of the newspaper’s constitutional rights? 5. When a paid newspaper advertisement published in circumstances described in Ques- tion 1 contains admittedly false charges de- scribed in Question 4 about police action in a MILESTONES IN THE LAW NEW YORK TIMES V. SULLIVAN 323 U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR RESPONDENT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION named city, may this Court consistently with its decisions and the Seventh Amendment review on certiorari a state jury finding, in a trial concededly fair, that the publication is “of and concerning” the city police commissioner whose name does not appear in the publication, and an award of general and punitive damages to him, when this state jury verdict embodied in a final state judgment has been approved by the state’s highest appellate court? 6. May this Court consistently with its decisions and the Seventh Amendment re- examine facts tried by a state jury in a trial concededly fair, when those findings have been embodied in a final state judgment affirmed by the highest state appellate court, and when review is sought on assertions that the verdict is wrong and the general and punitive libel damages merely excessive? 7. When a foreign corporation makes a general appearance in a private state civil action against it, according to state law consistent with the majority view of all states, is there an adequate independent state ground as to jurisdiction over this foreign corporation? 8. Even if there had been no general appearance as described in Question 7, when a foreign newspaper corporation continuously and systematically gathers news by resident and transient correspondents, so licits advertis- ing in person and by mail, and distributes its newspapers for sale in the forum state, and when some of these activities are incident to the cause of action in suit, has this foreign corporation sufficient contacts with the forum state so that suit against it is fair in accordance with decisions of this Court so explicit as to leave no room for real controversy? STATUTES INVOLVED Statutes referred to in this brief are contained in an appendix hereto. STATEMENT In the New York Times of March 29, 1960, there appeared a full-page advertisement, “warmly endorsed” by the four petitioners in No. 40, entitled, “Heed Their Rising Voices.” 1 Charging generally “an unprecedented wave of error,” the advertisement said of Montgomery: “In Montgomery, Alabama, after students sang ‘My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled 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. King’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 ‘speed- ing,’‘loitering’ and similar ‘offenses.’ And now they have charged him with ‘perjury’—a felony under which they could imprison him for ten years.” Respondent, police commissioner of Mon- tgomery, asked $500,000 as damages for this libel from the New York Times and the four “warm endorsers.” After a lengthy hearing the trial court held on August 5, 1960, that the New York Times was amenable to suit in Alabama. It had made a general appearance the court found. And, moreover, its business activities in Alabama, some of which had given rise to the cause of action, were sufficient contacts under due process standards to permit service on a Times string correspondent residing in Alabama, and on the Secretary of State under the Alabama Substituted Service Statute 2 (R. 49–57). After its demur rers had been overruled (R. 108) the Times filed six separate pleas to the complaint (R. 99–105). Although truth regardless of motive is a complete defense to a libel suit in Alabama (see infra), the Times and its co-defendants filed no plea of truth . Although privilege and fair comment are defenses in Alabama in appropriate circum- stances (see infra), the Times and its co- defendants did not plead these defenses. At the conclusion of the trial a jury returned a verdict against all defendants for $500,000, and the trial court entered a judgment against all defendants in this amount. 3 Petitioner does not assert here any due process defects in these trial 1 App. B of Petitioner’s brief, p. 97. 2 Title 7, § 199 (1), Code of Alabama. The Times has conceded throughout adequate notice and opportunity to defend. 3 Of course, this joint judgment is not collectible more than once. The facts giving rise to liability of petitioners in No. 40 will be related in a separate brief. 324 NEW YORK TIMES V. SULLIVAN MILESTONES IN THE LAW U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR RESPONDENT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION proceedings, and does not attack the motives and conduct of the jury. The Times filed a motion for new trial, which was overruled (R. 970); the petitioners in No. 40 filed motions for new trial, but allowed them to lapse (R. 984, 998, 1013, 1028). The Alabama Supreme Court affirmed the judgment as to all defendants (R. 1180). The Times complains in this Court: (1) The holdings of the Alabama courts that the publication was libelous per se and the jury verdict that it was “of and concerning” respon- dent abridged its guaranties under the 1st and 14th Amendments, and (2) it was not amenable to suit in Alabama. I. Merits Since the Times has told this Court that the whole libel rests on two discr epancies—mere “exaggerations or inaccuracies” 4 in the course of an “impersonal” 5 discussion “plainly” not meant as an attack on any individual, 6 respon- dent will state this case. 7 This lawsuit arose because of a wilful, deliberate and reckless attempt to portray in a full-page newspaper advertisement, for which the Times charged and was paid almost $5,000, rampant, vicious, terroristic and criminal police action in Montgomery, Alabama, to a nationwide public of 650,000. The goal was money-raising. Truth, accuracy and long- accepted standards of journalism were not criteria for the writing or publication of this advertisement. The defamatory matter (quoted R. 580–81) desc ribes criminal police action because some college students innocently sang “My Country ’Tis of Thee” from the Alabama State Capitol steps. The innocent singers were expelled from school; police ringed their campus by truck-loads armed with shotguns and tear gas; 8 and their dining hall was padlocked to starve the students into submis- sion. All statements charge violation of the students’ rights. The Times is not candid when it tells this Court (Brief p. 7) that “the only part” of the foregoing statement “that Respondent thought implied a reference to him was the assertion about ‘truckloads of police.’” Respondent made entirely clear that he considered the padlocking charge—and all other charges except expul- sion—as applicable to him as well (R. 716). The Times is also absolutely inaccurate when it tells this Court that respondent’s evidence “consisted mainly” (Brief p. 7) of a story by Sitton and a report by McKee. Responden t’s evidence also included the Times’ answers to interrogatories; respondent’s own testimony, and that of his numerous witnesses; the testimony of all of the Times’ trial witnesses; the statements and judicial admissions of its attorneys; and the testimony of John Murray who testif ied for the individual petitioners. The advertisement in another paragraph charges that the perpetrators of the foregoing alleged barbarisms were the same persons who had intimidated Martin Luther King; bombed his home; assaulted his person; and arrested him. All statements charge criminal conduct. Although the Times’ brief tells this Court that the pronoun “they” does not point to respon- dent, and that such a jury finding is “abs urd” (Brief p. 33), the jury was able to make the connection from the Times’ own witness, Gershon Aaronson. He conceded that the word “they” as it appeared repeatedly in the quotation in the ad “refers to the same persons” (R. 745). 9 Accordingly, the same police and the same police commissioner committed or condoned these alleged acts. And a jury unanimously agreed with Aaronson. In a vain attempt to transfer these devastating statements from the constitutionally unprotected area of socially useless libel, where they belong, 4 Brief, p. 33. 5 Brief, p. 32. 6 Ibid. 7 Respondent, accordingly, will not dignify beyond this comment the “statement” contained in the briefs of the friends of the Times. They are literally second editions of the advertisement and do not even purport to be confined to accurate summaries of the record. The American Civil Liberties Union Brief, for example, draws most of its statement from newspaper articles, offered by the Times on its motion for new trial, and excluded below. The correctness and propriety of the ruling are not challenged. The brief simply cites the material as evidence anyway. Such practice presumably fosters the “fair trials” to which the organization is “devoted” (Brief, pp. 1 and 2). The other amici briefs are consumed with unrelated cases, entirely outside the record, and with inaccurate and incomplete characterizations of and quotations from a scant fraction of the testimony in this case. 8 The Times apparently hopes to de-emphasize the ad’s false allegations that the police were armed with shotguns and tear gas. It describes the ad as speaking of “truckloads of armed police ” (Brief, pp. 5 and 62. See also p. 8). 9 The Times argues here, remarkable to say, that the jury should have disregarded Aaronson’s testimony, because another witness, Redding, was not interrogated on the point (Brief, p. 17). MILESTONES IN THE LAW NEW YORK TIMES V. SULLIVAN 325 U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR RESPONDENT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION to the arena of constitutionally protected speech, where they obviously have no place, the Times and its friends employ various soothing phrases to describe the advertisement. It is called “political expression” and “political criticism” (pp. 29 and 30) of “public men” (p. 41); “the daily dialogue of politics” (p. 50); “acritiqueof government as such”; “criticism of official conduct” and “of the government” (pp. 30 and passim); “the most impersonal denunciation of an agency of government” (p. 50); a “recital of grievances and protests against claimed abuse dealing squarely with the major issue of our time” (pp. 31 and 57); “an expression which is merely wrong in fact with denigrating implica- tions” (p. 54); an “appeal for political and social change” (A.C.L.U. brief, p. 13); a “critique of attitude and method, a value judgment and opinion” (A.C.L.U. brief, p. 29). But the ordinary, unsophisticated reader of this ad was bound to draw the plain meaning that such shocking conditions were the respon- sibility of those charged with the administration of the Montgomery Police Department— respondent and the other two city commis- sioners. Any other conclusion is impossible. The Times itself can suggest no other reference, except to the police generally, and police are under the direct control and supervision of respondent. Indeed, the Times brief (p. 44) characterizes the ad as “criticism of an elected political official ” and observes that this official should be hardy enough to take it without suing for libel. A description of such conduct, at war with basic concepts of decency and lawful govern- ment, inevitably evokes contempt, indignation, and ridicule for the person charged with the administration of police activities in Montgom- ery. And obviously this was the precise intent of the authors of the advertisement. One of them, John Murray, so testified. 10 Significantly, none of the Times’ witnesses, and none of the petitioners in No. 40, all of whom testified, presented any evidence designed to show that the statements from the ad were true. Certainly, the individual petitioners in No. 40, two of whom lived in Montgomery, had no reason to withhold testimony harmful to respondent. The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the testimony of a newspaper editor (R. 602, et seq.); a real estate and insurance man (R. 613, et seq.); the sales manager of a men’s clothing store (R. 634, et seq.); a food equipment man (R. 644, et seq.); a service station operator (R. 649, et seq.); and the operator of a truck line for whom respondent had formerly worked (R. 662, et seq.). Each of these witnesses stated that he associated the statements with respondent, and that if he had believed the statements to be true, he would have considered such conduct reprehensible in the extreme. 11 Unless the Times is asking this Court to assume the functions of a jury and to weigh the credibility of this relevant testimony, nothing could be more irrelevant than the time and place of the witnesses’ first inspection of the ad. Even so, the Times has had to adjust the testimony to make its dubious point, 12 and it seems to forget that all of its witnesses were its own employees. 10 “Q. (After reading the first paragraph quoted in the complaint) Was that the way that paragraph was when you first got it with the memorandum or did you give it that added touch for appeal? “A. Well, it would be a little difficult at this time to recall the exact wording in the memorandum but the sense of what was in the memorandum was certainly the same as what is in here. We may have phrased it a little differently here and there. “Q. I see. Your purpose was to rev it up a little bit to get money, I take it. “A. Well, our purpose was to get money and to make the ad as—to project it in the most appealing form from the material we were getting. “Q. Whether it was accurate or not really didn’t make much difference, did it? “A. 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’tbeen—Imeanwewould have stopped to question it. I mean we would have stopped to question it—We had every reason to believe it” (R. 814–815). 11 One stated, for example: “I don’t think there is any question about what I would decide. I think I would decide that we probably had a young Gestapo in Montgomery” (R. 646). 12 For example, Blackwell testified (R. 619): “He called me into his office and showed me this ad and at that time I indicated that I had seen the ad before but I don’t remember just where and under what circumstances ” Price testified: “ I saw copies of the two paragraphs myself prior to that time” (R. 648). Respondent’s counsel himself asked Parker whether he had seen the ad “before in my office” (R. 649) but not whether this was the first occasion; and counsel for the Times did not cross-examine on the point, presumably because its counsel had also talked to Parker before the trial (R. 651). 326 NEW YORK TIMES V. SULLIVAN MILESTONES IN THE LAW U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR RESPONDENT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION . 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. THE LAW U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR THE PETITIONER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION process, and forward the original writ or process and three copies thereof to. for a redress of grievances. ***** MILESTONES IN THE LAW NEW YORK TIMES V. SULLIVAN 317 U.S. SUPREME COURT, OCTOBER 1963 BRIEF FOR THE PETITIONER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Amendment