Butts and Bryant meet as friends, exchange warm greetings before the Georgia-Alabama game at Legion Field, Birmingham, Alabama, in 1960.

It’s a story that refuses to lie down and be quiet, even half a century later. In 1963, James Wallace “Wally” Butts, former coach of the University of Georgia’s football team, sued Curtis Publishing, the Post’s parent company, for libel. The case went all the way to the Supreme Court, which decided unanimously against Curtis Publishing. Fifty years later, there is growing doubt that it was the right decision.

To understand the doubt, you need to know the background of what the Post claimed was the most shocking sports story since the Chicago Black Sox scandal—a story that began with an overheard phone call and ended by damaging the credibility of America’s most popular magazine.

On September 13, 1962, George Burnett, an insurance salesman in Atlanta, called a friend at a local public relations firm. As sometimes happened in those days, the phone lines became ‘cross-connected.’ Instead of hearing his friend’s voice, he heard a telephone operator identify two famous college football coaches. One was Butts, the athletic director and former coach at the University of Georgia; the other was Paul “Bear” Bryant, coach at the University of Alabama.

Instead of hanging up or announcing his presence, Burnett remained on the line and listened. Over the next 15 minutes, according to what Burnett told the Post, he heard Butts give Bryant details about Georgia’s plays and strategies. In particular, he described the formations that his school’s football team would use against Georgia in the opening game, just eight days away.

Burnett feverishly took notes. When the conversation was done, he had six pages in all.

After the coaches hung up, Burnett redialed the number he originally called. This time the call didn’t get crossed over, and he reached his friend at the public relations firm. Burnett told him what he’d just heard. The friend replied that Butts was, in fact, at the firm and using a phone in a back office. Both men knew Butts and liked him, and after discussing the matter, they agreed to forget the whole business.

The next week, Alabama defeated Georgia, to no one’s surprise. Bryant’s team had been widely expected to win. What was unusual was the score: 35-0. Few gamblers would have bet on which team would win the game. Most of the betting action would concern the difference between the teams’ scores. A gambler who knew the point spread would have been particularly large could have made a lot of money. And Butts was close friends with gamblers.

The lopsided win bothered Burnett. He broke his silence and mentioned the matter with another friend, who passed it on to the new Georgia coach, who informed the University of Georgia’s administrators. They asked Butts about the incident. Butts didn’t deny the charge; in fact he admitted he’d discussed Georgia’s plays with Bryant. But he said the whole incident had been misinterpreted. The next day, Butts resigned from the university.

The university’s regents then called Burnett to a meeting, where they grilled him on what he’d heard. They brought up the fact that Burnett might not be a credible witness since, they’d learned, Burnett had written some bad checks in the past. Perhaps he was hoping to gain by making these charges.

Burnett left the meeting convinced the university was going to dispose of the problem by discrediting him. Expecting to face an accusation of slander from Butts, Burnett spoke with his attorney, who suggested he take his story to The Saturday Evening Post.

Solemnly Wally Butts leads a Georgia football team in locker-room prayer.

“The Story of a College Football Fix” appeared in the March 23, 1963, issue. On March 28, Butts sued Curtis Publishing for $10 million.

The case was heard in the Atlanta federal court, where a jury awarded Butts $60,000 in damages, and $3 million in punitive damages. Stunned, Curtis Publishing appealed the verdict. The 5th Circuit Court upheld the decision in 1965.

Curtis appealed again, believing it could get a favorable hearing in the U.S. Supreme Court, which had recently handed down an important decision concerning the rules of libel. In that case, L.B. Sullivan, the public safety commissioner in Birmingham, Alabama, had sued The New York Times for libel after the paper ran an appeal for Martin Luther King Jr.’s legal defense fund. He believed the wording of the appeal, which criticized the city’s police, had defamed him personally. At the time, several southern states had libel cases pending against newspapers they felt were unfairly reporting on their racial problems.

When the Supreme Court ruled unanimously in favor of The New York Times, Justice Hugo Black explained that malice “even as defined by the court, is an elusive, abstract concept, hard to prove and hard to disprove.” In this instance, the Supreme Court declared that a public official could not be libeled unless a publication showed intentional malice; that is, acting with reckless disregard for the truth.

Which is what the court decided the Post had done. They upheld the lower court’s decision for Butts. But the award of $3 million was appealed, and eventually Butts accepted $460,000.

Over the past 50 years, journalists have revisited the case, wondering how the Post managed to lose the case. There was proof the phone call had taken place. Burnett was a credible witness. Butts was not. Other investigators, both at the University of Georgia and the state attorney general’s office, corroborated what Burnett reported. So why did the Post lose all three trials? The reason might be one, or several, of the following:

• The Post’s attorney was not nearly as good as Butts’ lawyer, who was very skillful in diverting suspicion away from his client.
• The Post‘s attorney knew little about football, while Butts’ attorney had an incredible knowledge and could use this knowledge to discredit the value and usefulness of Burnett’s notes.
• The jury was unfavorably impressed that the Post editors didn’t bother to attend the trial but sent depositions of their testimony instead.
• The Post didn’t pass the story for review among its other editors, who could have caught several minor errors in the story, and would not have approved the sensationalistic tone in the introduction, which stated, “The corrupt here were not professional gamblers but two men—employed to educate and to guide young men. … How often do teachers sell out their pupils? We don’t know—yet. For now we can only be appalled.”
• The magazine was operating out of its depth. It had been trying to rebuild its popularity by engaging in what its publisher called “sophisticated muckraking.” It had successfully dug into several political scandals, and had often run stories about college athletics. But when challenged in this case, they mounted an indifferent defense with the wrong lawyer, and never even showed up in court to speak on their own behalf.

Yet none of these factors changed the fact the phone call took place, other inquiries backed up what Burnett said, and the fact that during the opening game, Georgia players had taunted the Alabama team by calling out the code names of their plays before they were run.

The Supreme Court’s decision in this case still baffles students of journalism law. So the question remains: why did the Post lose the case?

To further understand why doubt lingers, we recommend Fumble: Bear Bryant, Wally Butts and the Great College Football Scandal (New York: Harcourt, Brace, Jovanovich, 1986). The author, James Kirby, taught law at the University of Tennessee and had been dean of Ohio State University’s law school. In 1963, he investigated the Post’s allegations on behalf of the Southeastern Athletic Conference.

Why Did the Post Lose its $10 Million Libel Case? The Saturday Evening Post

After citing the number of deaths that had occurred in college games, sports writer Furman Bisher concluded that the game was definitely getting rough. “It seems to me that the effort to knock an opponent senseless has become more and more obvious in coaching intent.”

In his story, he paid particular attention to the University of Alabama’s team, then coached by Paul ‘Bear’ Bryant.

‘Bear’ Bryant, as seen in the days when he coached the University of Kentucky team.

He never said Bryant encouraged or condoned violence, but the implication was there. And Bryant thought the inference was strong enough to be considered libel. On January 4, 1963, he launched a $500,000 suit against the Post.

This lawsuit was still pending when the Post published another exposé on college football. In “The Story of a College Football Fix,” which appeared in March 1963, the Post charged that James Wallace ‘Wally’ Butts, Jr.—the University of Georgia’s athletic director, and recently demoted football coach—had given away game secrets to Bryant that affected the outcome of a Georgia-Alabama game. From this sprang another lawsuit against the Post. This time, Bear Bryant and Wally Butts both sued the Post for libel, each man asking for $10 million in damages.

Coming Up: Curtis Publishing Company vs. Butts 

50 Years Ago: Bear Bryant Sues the Post for a Football-Violence Article The Saturday Evening Post

Unfortunately, the finish line turned out to be a 15-foot yellow gate at the entrance to the reservoirs. Although the steel gate had been there for decades, Maribeth had never seen it closed. When she finally looked up, it was too late to avoid impact; her bike skidded under the gate, her head smashed into the barrier, and she broke several vertebrae in her neck.

The Metropolitan District Commission (MDC), a nonprofit water utility company, owns the West Hartford Reservoirs. Although they are used for water filtration, many joggers, walkers, and cyclists also enjoy the 3,000 acres of wooded trails.

Maribeth sued the MDC for negligence, claiming that it had failed to protect mountain bikers by not warning them that the gate, which was usually open, was now closed.

The MDC, a municipal corporation, argued that it was immune from liability under the common law and statutory doctrine of government. It also claimed that the Recreational Land Use Act barred Blonski recovering for injuries incurred while engaged in the dangerous adventure sport of mountain biking. Finally, the MDC maintained that even if the utility was not immune from liability, Blonski’s negligence had caused her injuries.

The utility said that after the 9/11 attacks it had decided to close the gate as a security measure against terrorists and contamination. Despite the change in policy, the MDC maintained that the gate was clearly visible—and that, in this case, Blonski wasn’t paying enough attention as she rode the well-marked trails.

At the trial witnesses stated that when they first saw the closed gate they had no difficulty going around it. A police report stated that the trail was straight and level for 500 feet away and that the gate was clearly visible.

Decision:
Blonski was awarded $2.9 million, less 30 percent. The jury found her 30 percent responsible for the collision, with the MDC primarily negligent for not posting a sign declaring the gate closed.

Taken for a Ride The Saturday Evening Post

What is the value of a lovely oak tree that brings beauty and nature to a man’s front yard? For decades the tree stood strong, and the Fisher family enjoyed it season 
after season—until a reckless driver hit 
it, resulting in extensive damage that 
eventually killed the mighty oak.

For Mr. Fisher, the value was incalculable. There was no way for him to replace the magnificent oak, but in an effort to seek justice, he filed a tort action against Ms. Lowe, who was operating the car, and Mr. Moffett who owned the car. Mr. Fisher also sued their insurance company.

The accident occurred in Michigan 
where there is “no-fault” insurance. And tort liability for “noneconomic loss” caused by the “ownership, maintenance, or use 
of a motor vehicle” is allowed when “the 
injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”

But what about “permanent serious 
disfigurement” suffered by a beloved tree?

The trial court ruled in favor of the defendants, pursuant to Michigan’s No-Fault 
Insurance Law. Unfortunately for Mr. Fisher, the statute makes it poetically clear:

There was no liability,

Since No-Fault grants immunity.

Mr. Fisher refused to be felled by the lower court, so he appealed to a higher branch. Judge Gillis wrote the opinion for the Michigan Court of Appeals, with a nod to Joyce Kilmer’s famous poem, “Trees”:

We thought that we would never see

A suit to compensate a tree.

A suit whose claim in tort is prest

Upon a mangled tree’s behest;

A tree whose battered trunk was prest

Against a Chevy’s crumpled crest;

A tree that faces each new day

With bark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers though we three,

We must uphold the court’s decree.

Fisher v. Lowe, 333 N.W. 2d 67

(Mich.Ct.App.1983)

Only God Can Make a Tree The Saturday Evening Post

We’ve all been there—out in some unfamiliar town or place and suddenly in need of a restroom. And if you gotta go, you gotta GO.

This was the situation for Mrs. Elliott when she was shopping at a Dollar General store in Chattanooga, Tennessee. When nature called, a store employee directed her to the restroom—in the back storage area of an old, rundown building.

The latrine was unlit (probably a good thing under the circumstances), but she noticed an electric light cord hanging down from the ceiling. She couldn’t reach it, so she stepped up on the toilet to pull the cord. That’s when the toilet lid slipped to one side, causing her right foot to plunge into the toilet while her other foot and the rest of her body fell backward onto the floor, resulting in serious injury.

Mrs. Elliott sued Dollar General, claiming the defective seat and lid caused her fall. The store blamed the accident on Mrs. Elliott’s heavy load, not the commode, explaining that the toilet seat was designed to “conform generally to the contours of the human posterior” and in the ordinary course of business, “when the commode seat is in use by a member of the feminine gender that the usual method of approach to it is to draw near, to then turn to face away from it, and to assume a sitting position with a portion of the user’s weight on the user’s feet.”

Dollar General even brought in an expert witness with a mathematical formula to measure what percentage of the user’s weight rested on the posterior as compared to the feet. (There was no calculation for hovering posteriors.)

Mrs. Elliott’s attorney argued that it was common for people to stand on toilets, using personal experience as his No. 1 example. “I weigh 185 pounds, and instead of going to the basement to get a step ladder, I let down the commode seat and the commode lid and step upon it and unscrew the light shade with a screwdriver. I know of my own knowledge that it has never broken or even cracked.”

Mrs. Elliott pleaded the store was negligent in its duty to provide a safe commode, and Dollar General claimed it was Mrs. Elliott’s duty and responsibility to use the toilet properly.

Whose duty was it?

Decision:

The court found in favor of Dollar General, holding that Mrs. Elliott did not exercise ordinary care for her own safety, and any resulting injury was due to her own negligence.

Nothing in the record shows that the toilet seat or commode was unsafe to sit on or use in the conventional manner, so the court concluded that Mrs. Elliott was putting the toilet to a use that the defendants could not foresee when she took her fateful plunge.

Supreme Court of Tennessee, 1971

Where Do You Think You Are? The Saturday Evening Post