Rosenblatt v. Baer/Dissent Fortas

Mr. Justice FORTAS, dissenting.

I would vacate the writ in this case as improvidently granted. The trial below occurred before this Court's decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710. As a result, the factual record in this case was not shaped in light of the principles announced in New York Times. Particularly in this type of case it is important to observe the practice of relating our decisions to factual records. They serve to guide our judgment and to help us measure theory against the sharp outlines of reality. Especially where our decision furnishes a necessarily Procrustean bed for state law, I think, with all respect, that we should insist upon a relevant factual record. A subsequent trial may conceivably help respondent, but it will be too late to be of assistance to us.