Curtis Publishing Co v. Butts Associated Press v. Walker

• Court: United States Supreme Court
• Citation: 18 L.Ed.2d 1094,388 U.S. 130,87 S.Ct. 1975
• Docket Number: Nos. 37,150,s. 37
• Parties: CURTIS PUBLISHING CO., Petitioner, v. Wallace BUTTS. The ASSOCIATED PRESS, Petitioner, v. Edwin A. WALKER
• Decision Date: 12 June 1967

388 U.S. 130 87 S.Ct. 1975 18 L.Ed.2d 1094 CURTIS PUBLISHING CO., Petitioner,

v.

Wallace BUTTS. The ASSOCIATED PRESS, Petitioner, v. Edwin A. WALKER.

Nos. 37, 150. Argued Feb. 23, 1967. Decided June 12, 1967. Rehearings Denied Oct. 9, 1967.

See 88 S.Ct. 11, 13.

-No. 37:

[Syllabus from pages 130-133 intentionally omitted]

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Herbert Wechsler, New York City, for petitioner.

Allen E. Lockerman and William H. Schroder, Atlanta, Ga., for respondent.

No. 150:

William P. Rogers, New York City, for petitioner.

Clyde J. Watts, Oklahoma City, Okl., for respondent.

Mr. Justice HARLAN announced the judgments of the Court and delivered an opinion in which Mr. Justice CLARK, Mr. Justice STEWART, and Mr. Justice FORTAS join.^**

In New York Times Co. v. Sullivan, 376 U.S. 254, 279—280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, this Court held that '(t)he constitutional guar-

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antees (of freedom of speech and press) require * * * a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' We brought these two cases here, 385 U.S. 811, 87 S.Ct. 30, 17 L.Ed.2d 52, 385 U.S. 812, 87 S.Ct. 40, 17 L.Ed.2d 52, to consider the impact of that decision on libel actions instituted by persons who are not public officials, but who are 'public figures' and involved in issues in which the public has a justified and important interest. The sweep of the New York Times rule in libel actions brought under state law was a question expressly reserved in that case, 376 U.S., at 283, n. 23, 84 S.Ct., at 727, and while that question has been involved in later cases, Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125; Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597; Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456, it has not been fully settled.

The matter has, however, been passed on by a considerable number of state and lower federal courts and has produced a sharp division of opinion as to whether the New York Times rule should apply only in actions brought by public officials or whether it has a longer reach. Compare, e.g., Pearson v. Fairbanks Publishing Co., 413 P.2d 711 (Alaska), with Clark v. Pearson, D.C., 248 F.Supp. 188.¹

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The resolution of the uncertainty in this area of libel actions requires, at bottom, some further exploration and clarification of the reat ionship between libel law and the freedom of speech and press, lest the New York Times rule become a talisman which gives the press constitutionally adequate protection only in a limited field, or, what would be equally unfortunate, one which goes far to immunize the press from having to make just reparation for the infliction of needless injury upon honor and reputation through false publication. These two libel actions, although they arise out of quite different sets of circumstances, provide that opportunity. We think they are best treated together in one opinion.

I.

No. 37, Curtis Publishing Co. v. Butts, stems from an article published in petitioner's Saturday Evening Post which accused respondent of conspiring to 'fix' a football game between the University of Georgia and the University of Alabama, played in 1962. At the time of the article, Butts was the athletic director of the University of Georgia and had overall responsibility for the administration of its athletic program. Georgia is a state university, but Butts was employed by the Georgia Athletic Association, a private corporation, rather than by the State itself.² Butts had previously served as head

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football coach of the University and was a well-known and respected figure in coaching ranks. He had maintained an interest in coaching and was negotiating for a position with a professional team at the time of publication.

The article was entitled 'The Story of a College Football Fix' and prefaced by a note from the editors stating: 'Not since the Chicago White Sox threw the 1919 World Series has there been a sports story as shocking as this one. * * * Before the University of Georgia played the University of Alabama * * * Wally Butts * * * gave (to its coach) * * * Georgia's plays, defensive patterns, all the significant secrets Georgia's football team possessed.' The text revealed that one George Burnett, an Atlanta insurance salesman, had accidentally overheard, because of electronic error, a telephone conversation between Butts and the head coach of the University of Alabama, Paul Bryant, which took place approximately one week prior to the game. Burnett was said to have listened while 'Butts outlined Georgia's offensive plays * * * and told * * * how Georgia planned to defend * * *. Butts mentioned both players and plays by name.' The readers were told that Burnett had made notes of the conversation, and specific examples of the divulged secrets were set out.

The article went on to discuss the game and the players' reaction to the game, concluding that '(t)he Georgia players, their moves analyzed and forecast like those of rats in a maze, took a frightful physical beating,' and said that the players, and other sideline observers, were aware that Alabama was privy to Georgia's secrets. It set out the series of events commencing with Burnett's later presentation of his notes to the Georgia head coach,

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Johnny Griffith, and culminating in Butts' resignation from the University's athletic affairs, for health and business reasons. The article's conclusion made clear its expected impact:

'The chances are that Wally Butts will never help any football team again. * * * The investigation by university and Southeastern Conference officials is continuing; motion pictures of other games are being scrutinized; where it will end no one so far can say. But careers will be ruined, that is sure.'

Butts brought this diversity libel action in the federal courts in Georgia seeking $5,000,000 compensatory and $5,000,000 punitive damages. The complaint was filed, and the trial completed, before this Court handed down its decision in New York Times, and the only defense raised by petitioner Curtis was one of substantial truth. No constitutional defenses were interposed although Curtis' counsel were aware of the progress of the New York Times case, and although general constitutional defenses had been raised by Curtis in a libel action instituted by the Alabama coach who was a state employee.

Evidence at trial was directed both to the truth of the article and to its preparation. The latter point was put in issue by the claim for punitive damages which required a finding of 'malice' under Georgia law. The evidence showed that Burnett had indeed overheard a conversation between Butts and the Alabama coach, but the content of that conversation was hotly disputed. It was Butts' contention that the conversation had been general football talk and that nothing Burnett had overheard would have been of any particular value to an opposing coach. Expert witnesses supported Butts by analyzing Burnett's notes and the films of the game itself. The Saturday Evening Post's version of the game and of the players' remarks about the game was severely contradicted.

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The evidence on the preparation of the article, on which we shall focus in more detail later, cast serious doubt on the adequacy of the investigation underlying the article. It was Butts' contention that the magazine had departed greatly from the standards of good investigation and reporting and that this was especially reprehensible, amounting to reckless and wanton conduct, in light of the devastating nature of the article's assertions.

The jury was instructed that in order for the defense of truth to be sustained it was 'necessary that the truth be substantially portrayed in those parts of the article which libel the plaintiff.' The 'sting of the libel' was said to be 'the charge that the plaintiff rigged and fixed the 1962 Georgia-Alabama game by giving Coach Bryant (of Alabama) information which was calculated to or could have affected the outcome of the game.' The jury was also instructed that it could award punitive damages 'to deter the wrong-doer from repeating the trespass' in an amount within its sole discretion if it found that actual malice had been proved.³

The jury returned a verdict for $ 60,000 in general damages and for $3,000,000 in punitive damages. The trial court reduced the total to $460,000 by remittitur. Soon thereafter we handed down our decision in New York Times and Curtis immediately brought it to the attention of the trial court by a motion for new trial. The trial judge rejected Curtis' motion on two grounds. He

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first held that New York Times was inapplicable because Butts was not a public official. He also held that 'there was ample evidence from which a jury could have concluded that there was reckless disregard by defendant of whether the article was false or not.'

Curtis appealed to the Court of Appeals for the Fifth Circuit which affirmed the judgment of the District Court by a two-to-one vote. The majority there did not reach the merits of petitioner's constitutional claim, holding that Curtis had 'clearly waived any right it may have had to challenge the verdict and judgment on any of the constitutional grounds asserted in Times.' 351 F.2d 702, 713, on the basis of Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83. It found Curtis chargeable with knowledge of the constitutional limitations on libel law at the time it filed its pleadings below because of its 'interlocking battery of able and distinguished attorneys' some of whom were involved in the New York Times litigation. This holding rendered the compensatory damage decision...