Howard v. Lyons/Concurrence Black

Mr. Justice BLACK concurs for the reasons stated in his concurring opinion in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335.

Mr. Chief Justice WARREN with whom Mr. Justice DOUGLAS joins, dissenting.

I cannot agree that Captain Howard's action in sending a copy of his report to the Massachusetts Congressional Delegation was absolutely privileged. In its argument in this case, the Government consistently distinguished this case from Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, by characterizing Captain Howard as a man who was acting under strict orders and who had no discretion.

Until reargument in this Court, the only indications that it was mandatory for Captain Howard to report matters of this sort to Congress were the bald assertions to that effect in Captain Howard's affidavit and in the affidavit of his superior, Admiral Schnackenberg, in the District Court. Not naval regulation was cited and no other authority was offered. It is significant that, in the same affidavit, when Captain Howard was explaining why he had transmitted copies of the report to a superior, he was able to cite chapter and verse of the U.S. Navy Public Information Manual as authority for that action.

For the first time on reargument in this Court, the Government produced the letter from the Secretary of the Navy referred to in the Court's opinion. The paragraph relied on is nothing more than a general policy statement applicable only to 'Navy agencies.' The letter was in no way directed toward labor problems-and the quoted portion is but a few lines in a five-page letter sent to a general distribution list and apparently never inserted in the Federal Register or any Navy Manual. Obviously, this letter was not cited by Captain Howard because he was unaware of its existence-or its applicability.

The short explanation is that the Captain thought that since the plaintiffs had attacked the administrationof the shipyard by sending copies of their newsletters and charges to Congress, he should send Congress his side of the story. This he had a right to do but in doing so he should have no greater privilege than his critic. The plaintiffs in this case at most received qualified privilege for their complaints to Congress, yet the Captain's answer is given absolute privilege.

As my dissent in Barr v. Matteo indicates, the burden of proof is on the defendant to sustain his claim of privilege. 360 U.S. at page 564, 79 S.Ct. at page 1335. I do not read this record as placing a mandatory duty on Captain Howard to make the report in question to Congress.

I would affirm.

For dissenting opinion of Mr. Justice Brennan, see 360 U.S. 564, 79 S.Ct. 1347.