The cost of the advertisement was approximately $4800, and it was published by the Times upon an order from a New York advertising agency acting for the signatory Committee. The agency submitted the advertisement with a letter from A. Philip Randolph, Chairman of the Committee, certifying that the persons whose names appeared on the advertisement had given their permission. Mr. Randolph was known to the Times’ Advertising Acceptability Department as a responsible person, and in accepting the letter as sufficient proof of authorization it followed its established practice. There was testimony that the copy of the advertisement which accompanied the letter listed only the 64 names appearing under the text, and that the statement, ‘We in the south * * * warmly endorse this appeal,’ and the list of names thereunder, which included those of the individual petitioners, were subsequently added when the first proof of the advertisement was received. Each of the individual petitioners testified that he had not authorized the use of his name, and that he had been unaware of its use until receipt of respondent’s demand for a retraction. The manager of the Advertising AcceptabilityDepartment testified that he had approved the advertisement for publication because he knew nothing to cause him to believe that anything in it was false, and because it bore the endorsement of ‘a number of people who are well known and whose reputation’ he ‘had no reason to question.’ Neither he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times news stories relating to some of the described events or by any other means.
Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct unless he first makes a written demand for a public retraction and the defendant fails or refuses to comply. [Cc] Respondent served such a demand upon each of the petitioners. None of the individual petitioners responded to the demand, primarily because each took the position that he had not authorized the use of his name on the advertisement and therefore had not published the statements that respondent alleged had libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a letter stating, among other things, that ‘we * * * are somewhat puzzled as to how you think the statements in any way reflect on you,’ and ‘you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you.’ Respondent filed this suit a few days later without answering the letter. The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with ‘grave misconduct and * * * improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of Alabama.’ When asked to explain why there had been a retraction for the Governor but not for respondent, the Secretary of the Times testified: ‘We did that because we didn’t want anything that was published by The Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education presumably of which the Governor is the ex-officio chairman * * *.’ On the other hand, he testified that he did not think that ‘any of the language in there referred to Mr. Sullivan.’ The trial judge submitted the case to the jury under instructions that the statements in the advertisement were ‘libelous per se’ and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made ‘of and concerning’ respondent. The jury was instructed that, because the statements were libelous per se, ‘the law * * * implies legal injury from the bare fact of publication itself,’ ‘falsity and malice are presumed,’ ‘general damages need not be alleged or proved but are presumed,’ and ‘punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown.’ An award of punitive damages-as distinguished from ‘general’ damages, which are compensatory in nature-apparently requires proof of actual malice under Alabama law, and the judge charged that ‘mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages.’ He refused to charge, however, that the jury must be ‘convinced’ of malice, in the sense of ‘actual intent’ to harm or ‘gross negligence and recklessness,’ to make such an award, and he also refused to require that a verdict for respondent differentiate between compensatory and punitive damages. The judge rejected petitioners’ contention that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments. In affirming the judgment, the Supreme Court of Alabama sustained the trial judge’s rulings and instructions in all respects. [Cc] It held that ‘(w)here 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’; that ‘the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff’; and that it was actionable without ‘proof of pecuniary injury * * *, such injury being implied.’I[Cc] It approved the trial court’s ruling that the jury could find the statements to have been made ‘of and concerning’ respondent, stating: ‘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 and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body.’ [C] In sustaining the trial court’s determination that the verdict was not excessive, the court said that malice could be inferred from the Times’ ‘irresponsibility’ in printing the advertisement while ‘the Times in its own files had articles already published which would have demonstrated the falsity of the allegations in the advertisement’; from the Times’ failure to retract for respondent while retracting for the Governor, whereas the falsity of some of the allegations was then known to the Times and ‘the matter contained in the advertisement was equally false as to both parties’; and from the testimony of the Times’ Secretary that, apart from the statement that the dining hall was padlocked, he thought the two paragraphs were ‘substantially correct.’ [Cc] The court reaffirmed a statement in an earlier opinion that ‘There is no legal measure of damages in cases of this character.’ [Cc] It rejected petitioners’ constitutional contentions with the brief statements that ‘The First Amendment of the U.S. Constitution does not protect libelous publications’ and ‘The Fourteenth Amendment is directed against State action and not private action.’ [Cc]