author: Mr. Justice White Me. Justice Foetas,

text:
    ST. AMANT v. THOMPSON.
    No. 517.
    Argued April 4, 1968.
    Decided April 29, 1968.

      Russell J. Schonekas argued the cause and filed a brief for petitioner.

      Robert L. Kleinpeter argued the cause and filed a brief for respondent.
   Mr. Justice White

delivered the opinion of the Court.

The question presented by this case is whether the Louisiana Supreme Court, in sustaining a judgment for damages in a public official’s defamation action, correctly interpreted and applied the rule of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), that the plaintiff in such an action must prove that the defamatory publication “was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U. S., at 279-280.

On June 27, 1962, petitioner St. Amant, a candidate for public office, made a televised speech in Baton Rouge, Louisiana. In the course of this speech, St. Amant read a series of questions which he had put to J. D. Albin, a member of a Teamsters Union local, and Albin’s: answers to those questions. The exchange concerned the allegedly nefarious activities of E. G. Partin, the president of the local, and the alleged relationship between Partin and St. Amant’s political opponent. One of Albin’s answers concerned his efforts to prevent Partin from secreting union records; in this answer Albin referred to Herman A. Thompson, an East Baton Rouge Parish deputy sheriff and respondent here:

“Now, we knew that this safe was gonna be moved that night, but imagine our predicament, knowing of Ed’s connections with the Sheriff’s office through Herman Thompson, who made recent visits to the Hall to see Ed. We also knew of money that had passed hands between Ed and Herman Thompson . . . from Ed to Herman. We also knew of his connections with State Trooper Lieutenant Joe Green. We knew we couldn’t get any help from there and we didn’t know how far that he was involved in the Sheriff’s office or the State Police office through that, and it was out of the jurisdiction of the City Police.”

Thompson promptly brought suit for defamation, claiming that the publication had “impute [d] . . . gross misconduct” and “infer[red] conduct of the most nefarious nature.” The case was tried prior to the decision in New York Times Co. v. Sullivan, supra. The trial judge ruled in Thompson’s favor and awarded $5,000 in damages. Thereafter, in the course of entertaining and denying a motion for a new trial, the Court considered the ruling in New York Times, finding that rule no barrier to the judgment already entered. The Louisiana Court of Appeal reversed because the record failed to show that St. Amant had acted with actual malice, as required by New York Times. 184 So. 2d 314 (1966). The Supreme Court of Louisiana reversed the intermediate appellate court. 250 La. 405, 196 So. 2d 255 (1967). In its view, there was sufficient evidence that St. Amant recklessly disregarded whether the statements about Thompson were true or false. We granted a writ of certiorari. 389 U. S. 1033 (1968).

For purposes of this case we accept the determinations of the Louisiana courts that the material published by-St. Amant charged Thompson with criminal conduct, that the charge was false, and that Thompson was a public official and so had the burden of proving that the false statements about Thompson were made with actual malice as defined in New York Times Co. v. Sullivan and later cases. We cannot, however, agree with either the Supreme Court of Louisiana or the trial court that Thompson sustained this burden.

Purporting to apply the New York Times malice standard, the Louisiana Supreme Court ruled that St. Amant had broadcast false information about Thompson recklessly, though not knowingly. Several reasons were given for this conclusion. St. Amant had no personal knowledge of Thompson’s activities; he relied solely on Albin’s affidavit although the record was silent as to Albin’s reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed Thompson and went ahead heedless of the consequences; and he mistakenly believed he had no responsibility- for the broadcast because he was merely quoting Albin’s words.

These considerations fall short of proving St. Amant’s reckless disregard for the accuracy of his statements about Thompson. “Reckless disregard,” it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law. Our cases, however, have furnished meaningful guidance for the further definition of a reckless publication. In New York Times, supra, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. Louisiana, 379 U. S. 64 (1964), also decided before the decision of the Louisiana Supreme Court in this case, the opinion emphasized the necessity for a showing that a false publication was made with a “high degree of awareness of . .. probable falsity.” 379 U. S., at 74. Mb. Justice Hahlan’s opinion in Curtis Publishing Co. v. Butts, 388 U. S. 130, 153 (1967), stated that evidence of either deliberate falsification or reckless publication “despite the publisher’s awareness of probable falsity” was essential to recovery by public officials in defamation actions. These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity. Con-cededly the reckless disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher. But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases have drawn between false communications which are protected and those which are not.

The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

By no proper test of reckless disregard was St. Amant’s broadcast a reckless publication about a public officer. Nothing referred to by the Louisiana courts indicates an awareness by St. Amant of the probable falsity of Albin’s statement about Thompson. Failure to investigate does not in itself establish bad faith. New York Times Co. v. Sullivan, supra, at 287-288. St. Amant’s mistake about his probable legal liability does not evidence a doubtful mind on his part. That he failed to realize the import of what he broadcast — and was thus “heedless” of the consequences for Thompson — is similarly colorless. Closer to the mark are considerations of Albin’s reliability. However, the most the state court could say was that there was no evidence in the record of Albin’s reputation for veracity, and this fact merely underlines the failure of Thompson’s evidence to demonstrate a low community assessment of Albin’s trustworthiness or unsatisfactory experience with him by St. Amant.

Other facts in this record support our view. St. Amant made his broadcast in June 1962. He had known Albin since October 1961, when he first met with members of the dissident Teamsters faction. St. Amant testified that he had verified other aspects of Albin’s information and that he had affidavits from others. Moreover Albin swore to his answers, first in writing and later in the presence of newsmen. According to Albin, he was prepared to substantiate his charges. St. Amant knew that Albin was engaged in an internal struggle in the union; Albin seemed to St. Amant to be placing himself in personal danger by publicly airing the details of the dispute.

Because the state court misunderstood and misapplied the actual malice standard which must be observed in a public official’s defamation action, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Black and Mr. Justice Douglas concur in the judgment of the Court for the reasons set out in their concurring opinions in New York Times Co. v. Sullivan, 376 U. S. 254, 293 (1964), and Garrison v. Louisiana, 379 U. S. 64, 79, 80 (1964).

Me. Justice Foetas,

dissenting.

I do not believe that petitioner satisfied the minimal standards of care specified by New York Times Co. v. Sullivan, 376 U. S. 254 (1964). The affidavit that petitioner broadcast contained a seriously libelous statement directed against respondent. Respondent was a public official. He was not petitioner’s adversary in the political contest. Petitioner’s casual, careless, callous use of the libel cannot be rationalized as resulting from the heat of a campaign. Under New York Times, this libel was broadcast by petitioner with “actual malice” — with reckless disregard of whether it was false or not. The principle of Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), in my opinion, should lead us to affirmance here.

The First Amendment is not so fragile that it requires us to immunize this kind of reckless, destructive invasion of the life, even of public officials, heedless of their interests and sensitivities. The First Amendment is not a shelter for the character assassinator, whether his action is heedless and reckless or deliberate. The First Amendment does not require that we license shotgun attacks on public officials in virtually unlimited open season. The occupation of public officeholder does not forfeit one’s membership in the human race. The public official should be subject to severe scrutiny and to free and open criticism. But if he is needlessly, heedlessly, falsely accused of crime, he should have a remedy in law. New York Times does not preclude this minimal standard of civilized living.

Petitioner had a duty here to check the reliability of the libelous statement about respondent. If he had made a good-faith check, I would agree that he should be protected even if the statement were false, because the interest of public officials in their reputation must endure this degree of assault. But since he made no check, I agree with the Supreme Court of Louisiana that New York Times does not prohibit recovery.

I would affirm.

       St. Amant had preceded this question and answer with other answers by Albin asserting that Partin, on learning that a union member had written to the Secretary of Labor charging that Partin had been stealing union funds, had become “pretty riled up” and had decided to “get rid of the safe” containing the union records.

       The Louisiana Supreme Court concluded, after considering state law, that a deputy sheriff has “substantial responsibility for or control over the conduct of governmental affairs,” the test established by Rosenblatt v. Baer, 383 U. S. 75, 85 (1966), “at least where law enforcement and police functions are concerned.” 250 La., at 422, 196 So. 2d, at 261.

       See, e. g., Curtis Publishing Co. v. Butts, 388 U. S. 130, 169-170 (Warren, C. J., concurring in the result), and 172 (Brennan, J., dissenting) (1967).


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Douglas, Mr. Justice Brennan,

license: Public Domain

text:
    HANNER v. DeMARCUS et ux.
    No. 497.
    Argued March 28, 1968.
    Decided April 29, 1968.

      Philip M. Haggerty argued the cause for petitioner. With him on the briefs was Raymond R. Wein.

      N. Pike Johnson, Jr., argued the cause for respondents. On the brief was Robert John Walton.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Mr. Justice Douglas,

with whom The Chief Justice and Mr. Justice Black concur,

dissenting.

Respondent was appointed Special Master in an Arizona divorce proceeding where petitioner, Josephine Hanner, was defendant. The divorce court ordered petitioner to pay respondent’s $5,072.10 Special Master’s fee. Respondent obtained a writ of execution and levied on certain real property of petitioner, which respondent purchased at the execution sale for the amount of judgment, later acquiring a sheriff’s deed. The only notice of the execution and judicial sale was by newspaper publication and public posting. Three years after the execution, respondent commenced a quiet-title action in Arizona court. Petitioner pleaded as an affirmative defense that the execution and deed were “null and void and of no effect” because neither respondent nor the sheriff gave her actual notice of the execution and judicial sale, although respondent knew her address and that of her attorney in the divorce action. Respondent was granted summary judgment, and, on appeal to the Arizona Supreme Court, petitioner urged that because no actual notice was given her, the procedure for execution violated the Due Process Clause of the Fourteenth Amendment. Petitioner urged the State Supreme Court to construe Rule 53 (a) of the Arizona Rules of Civil Procedure, concerning Master’s fees, to require actual notice to the debtor of execution, in order to avoid the constitutional problem. That court, however, held that Rule 53 (a) did not require notice of execution, but merely of the underlying debt, and concluded that the procedure did not deny due process.

In her petition for writ of certiorari, Mrs. Hanner urged that the failure to give her actual notice of the execution prejudiced her in three respects: (1) she was unable to invoke her privilege under state law, Ariz. Rev. Stat. Ann. § 12-1562, to specify which property the sheriff should seize to satisfy the debt; (2) she was unable to demand that the sheriff comply with Ariz. Rev. Stat. Ann. § 12-1553, providing that execution be levied on personal property rather than realty, where the personalty is sufficient to satisfy the judgment; and (3) respondent was enabled to acquire for less than $5,100 land which he in the divorce case had valued at $20,000 and which petitioner values at $40,000, because petitioner, not knowing of the judicial sale, was unable to protect her interests.

In his brief opposing certiorari, respondent argued that the only federal question presented, whether actual notice to the judgment debtor of execution and judicial sale was required by procedural due process, had been decided in Endicott Johnson Corp. v. Encyclopedia Press, 266 U. S. 285, which held that notice of the underlying debt sufficed. We granted certiorari to determine whether Endicott should be overruled. 389 U. S. 926.

In his brief on the merits, respondent changed position and argued that the Endicott question was not properly before this Court. Sections 12-1562 and 12-1553 of the Arizona Statutes, he claims, do in fact require that the debtor be given actual notice. It is urged that by failing to invoke these sections but instead arguing that Rule 53 (a) was unconstitutional unless construed to require actual notice petitioner bypassed state grounds which might have entitled her to relief.

Section 12-1553 provides that the writ of execution shall require the officer to satisfy a judgment against the property of the debtor “out of the personal property of the debtor, and if sufficient personal property cannot be found, then out of his real property. . . .” Section 12-1562B provides: “A judgment debtor may point out to the levying officer the property he desires to be levied on, and if the officer deems it sufficient to satisfy the execution, he shall make levy on no other property.”

In Blasingame v. Wallace, 32 Ariz. 580, 261 P. 42, the Arizona Supreme Court held these provisions were “not mandatory” but that the judicial sale “may be set aside where it is shown that the judgment debtor had sufficient personal property which could have been applied upon the judgment, and that the officer knew it, or by the exercise of reasonable diligence could have discovered it, and failed to levy upon it, but instead levied upon and sold for the amount of the judgment real property worth many times that sum.” Id., at 586, 261 P., at 44.

We do not know precisely what petitioner argued in the Supreme Court of Arizona because the briefs of the parties in that court have not been made part of the record here. It appears, however, from the sketchy record that is before us that she did make timely objection that the sheriff did not consult with her respecting the property upon which he would levy. In her affidavit opposing summary judgment petitioner made two separate and distinct arguments regarding notice. The first states: “Affiants allege that at no time did . . . these affiants receive any notice from the said Cecil DeMarcus or his agents or his attorney as required by Rule 53 (A) Rules of Civil Procedure for the Superior Courts of the State of Arizona, which is a material issue of fact as to whether the notice required by said Rule 53 (A) was given to these defendants by the plaintiff.” (Emphasis in original.)

In the next paragraph of the affidavit petitioner made a different allegation respecting notice: “Affiants further allege that at no time did they receive any Notice from the Sheriff of Maricopa County, State of Arizona as to any execution issued out of the above entitled Court and did not receive any notice as to any Sheriff’s sale of said Lots . . . .” Since petitioner’s position was that Rule 53 (a), relating to special masters, required the Master to give notice, the allegations respecting failure of the sheriff to give notice could only be relevant under the State’s Blasingame doctrine. The fact that this affidavit was before the State Supreme Court, coupled with respondent’s concession that petitioner argued there that if actual notice were not provided for due process would be violated, compels the conclusion that for purposes of this Court’s review of federal questions petitioner adequately presented to the Arizona courts the issue of the applicability of Blasingame, even though she may not have cited that case or §§ 12-1553 and 12-1562 until her petition for rehearing. Moreover, this Court will not decline to decide a constitutional question simply because of a State’s technicalities respecting briefing and pleading. See NAACP v. Alabama, 377 U. S. 288; Wright v. Georgia, 373 U. S. 284; Staub v. City of Baxley, 355 U. S. 313, 318.

When the judgment below is viewed as holding by necessity that Blasingame does not entitle petitioner to relief, it is unquestionable that the Arizona Supreme Court has held constitutional a procedure for execution of judgment and judicial sale in which the debtor receives no actual notice of these proceedings. With all due respect, only a Baron Parke would say that the federal question respecting notice had not been raised and therefore that the writ should be dismissed as improvidently granted.

The propriety of overruling Endicott Johnson Corp. v. Encyclopedia Press, supra, is therefore squarely presented.

Endicott was decided in 1924, and its holding that due process does not require notifying a judgment debtor of execution on his property has never been reaffirmed by this Court. Significantly, the Court in Endicott did not hold that absence of any notice at all was permissible, but rather that the judgment debtor, having had his day in court and being aware of the judgment against him, is expected to know that execution may follow.

Since the Endicott decision, there has been not only an expansion of the scope of the notice requirement itself (e. g., Armstrong v. Manzo, 380 U. S. 545 (adoption) ; Lambert v. California, 355 U. S. 225 (felon’s duty to register); Covey v. Town of Somers, 351 U. S. 141 (property tax foreclosure)), but a new approach to the constitutional sufficiency of the means of giving notice in particular types of cases. Mullane v. Central Hanover Tr. Co., 339 U. S. 306; Walker v. Hutchinson City, 352 U. S. 112; Schroeder v. City of New York, 371 U. S. 208. “The means employed must be such as one desirous of actually informing the [opposing party] might reasonably adopt to accomplish it.” Mullane v. Central Hanover Tr. Co., 339 U. S., at 315.

The Endicott rationale that a party who has litigated a case and had a judgment taken against him is deemed, for purposes of due process, to be on notice of further proceedings in the same action was rejected in Griffin v. Griffin, 327 U. S. 220. There the wife won a divorce from her husband in 1926 and an award of $3,000 per year alimony. In 1938, without notifying her ex-husband, the debtor, she obtained a judgment for alimony arrears and a writ of execution. Under the applicable New York law, the husband could have defeated liability for the accrued arrearage by proof, for example, that the wife had remarried or of change of circumstances, such as comparative financial status, warranting retroactive modification of the alimony award.

We held failure to give actual notice to the husband of the 1938 proceedings violated due process, saying: “While it is undoubtedly true that the 1926 decree, taken with the New York practice on the subject, gave petitioner notice at the time of its entry that further proceedings might be taken to docket in judgment form the obligation to pay installments accruing under the decree, we find in this no ground for saying that due process does not require further notice of the time and place of such further proceedings, inasmuch as they undertook substantially to affect his rights in ways in which the 1926 decree did not.” Id., at 229.

Does not Griffin point the way to the demands of due process in the instant case? The further proceedings in Mrs. Hanner’s case — execution and judicial sale — certainly “undertook substantially to affect [her] rights.” In Griffin substantial property rights were at stake at further proceedings because state law entitled the debtor to reduce his debt on proof of changed circumstances; in the instant case substantial property rights were at stake because state law gave the debtor the right to select the property to be levied on and to effectively prevent respondent from seizing property worth $20,000 or $40,000 for a $5,072.10 judgment. Is there any more reason to accept in this case the Endicott fiction of constructive notice because of knowledge of the underlying judgment than there was in Griffin?

We should face the question whether in light of our recent decisions Endicott should be overruled.

Mr. Justice Brennan,

dissenting.

I agree with my Brother Douglas, for the reasons stated in his dissenting opinion, that the federal question respecting notice was raised and therefore that we have the duty to decide whether Endicott Johnson Corp. v. Encyclopedia Press, 266 U. S. 285, should be overruled. In my view the situation in this case is indistinguishable from that in Endicott — both involve money judgments and present the identical question whether actual notice to the judgment debtor of execution and judicial sale was required by procedural due process. In that circumstance the judgment before us cannot be reversed without overruling Endicott. Since the Court refuses to consider whether Endicott should be overruled, I see no alternative but to vote to affirm on its authority.

       Rule 53(a) provides in relevant part: “[W]hen the party ordered to pay the compensation allowed by the court [to a Master] does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.” The Arizona Supreme Court held: “A cursory reading of the rule makes it evident that the word ‘notice’ refers to a notice to the debtor of his obligation and that the rule does not then further require a notice of an intent to execute, once notification of the judgment is properly given. Therefore whether or not [petitioner] had actual notice of the intended execution is immaterial .... Rule 53 (a) . . . is clear in its terms. If the compensation is not paid, the rule provides a means by which payment may be secured. We disagree with defendant’s contention that this method is either vague or lacking in the protections guaranteed by the due process clauses of either the Arizona or Federal Constitutions.” Knight v. DeMarcus, 102 Ariz. 105, 107-108, 425 P. 2d 837, 839-840.

       Sir James Parke served on England’s bench from 1828-1855. “His fault was an almost superstitious reverence for the dark technicalities of special pleading.” 15 Dictionary of National Biography 226.

       “Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.” Lambert v. California, 355 U. S. 225, 228.


author: Per Curiam.

text:
    SOUTHERN PACIFIC CO. et al. v. UNITED STATES et al.
    No. 1159.
    Decided April 29, 1968.

      Alan C. Furth, Robert L. Pierce, William P. Higgins and G. Clark Cummings for appellants.

      Solicitor General Griswold, Assistant Attorney General Turner, Robert W. Ginnane and Betty Jo Christian for the United States et al.; Ernest Porter, Dennis McCarthy, E. L. Van Dellen, Walter G. Treanor and E. Barrett Prettyman, Jr., for Denver & Rio Grande Western Railroad Co. et al., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    HOSACK et al. v. SMILEY et al.
    No. 1196.
    Decided April 29, 1968.

      Melvin L. Wulf for appellants.

      Duke W. Dunbar, Attorney General of Colorado, and John P. Holloway, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    DELLA ROCCA v. UNITED STATES.
    No. 1105.
    Decided April 29, 1968.

      Jerome Lewis and Thomas B. Newman for petitioner.

      Solicitor General Griswold for the United States.
   Per Curiam.

The petition for a writ of certiorari is granted and the judgment is vacated. The case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of Haynes v. United States, ante, p. 85, and Simmons v. United States, ante, p. 377.


text:
    ROADWAY EXPRESS, INC. v. DIRECTOR, DIVISION OF TAXATION.
    No. 1225.
    Decided April 29, 1968.

      Nicholas Conover English for appellant.

      Arthur J. Sills, Attorney General of New Jersey, and Elias Abelson and Jeffrey R. Lowe, Deputy Attorneys General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Harlan and Mr. Justice White are of the opinion that probable jurisdiction should be noted and the case set for oral argument.


text:
    SIMS v. COHEN, ACTING SECRETARY OF HEALTH, EDUCATION, AND WELFARE.
    No. 386,
    Misc.
    Decided April 29, 1968.

      H. H. Gearinger for petitioner.

      Solicitor, General Marshall for respondent.

      Israel Steingold for the American Trial Lawyers Association, as amicus curiae, in support of the petition.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Hopkins v. Cohen, ante, p. 530.

The Chief Justice and Mr. Justice White dissent for the reasons stated in the dissenting opinion of Mr. Justice White in Hopkins v. Cohen, ante, p. 535.

Mr. Justice Marshall took no part in the consideration or decision of this case.