(dissenting in part and concurring in part) :
I accept the Court’s conclusion that the service of process here questioned satisfied the Louisiana Statutes which were intended to stretch the long arm of Louisiana as far as the Constitution would permit it to reach. Stanga v. McCormick Shipping Corp., 5 Cir., 1959, 268 F.2d 544; cf. Delray Beech Aviation Corp. v. Mooney Aircraft, Inc., 5 Cir., 1964, 332 F.2d 135. I likewise agree that, facing the inescapable federal question, the activities of the New York Herald Tribune, The Charleston Gazette, The Cincinnati Post and Times Star, The Commercial Appeal, Des Moines Town Register, and the Florida Times-Union were of such a minuscule nature that none meets the minimum contract standard.1
With respect to the New York Times, however, I am, of the view that unless a newspaper is to get an immunity both as to service of process and, perhaps now as to substantive liability for a defamation, New York Times v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the activities of this defendant were more than ample to satisfy these underlying federal notions of fair play. When, as is done in the Court’s opinion, the Times’ Louisiana business is expressed in terms of percentages, I must agree it looks very tiny and casual. But the fact remains that there was a substantial number of regular subscriptions and newsstand sales. Average circulation in 1962 for the daily Times was 391 and for its celebrated Sunday edition, 1784.
Although I am now bound, for whatever state was there involved in this early-post-Erie opinion, by Street & *476Smith Publications v. Spikes, 5 Cir., 1941, 120 F.2d 895, cert. denied, 314 U.S. 653, 62 S.Ct. 102, 86 L.Ed.2d 524, I cannot, in testing the federal constitutionality of this service, accept the proposition, as the Court now states it, that “[t]he law is well settled that the mere circulation of a periodical through the mails to subscribers * * * constitutes neither doing business nor engaging in a business activity.” 338 F.2d at 474. Why does a newspaper exist? A newspaper exists to gather and disseminate news through the sale and distribution of its papers. It seems incongruous to me for the law to say that the regular, continuous solicitation of subscriptions for a price and the transmission of the papers through the mails either in response to such solicited subscriptions or for retail sale through distributors is not “doing business,” nor “engaging in a business activity.” That is the very reason for the newspaper’s existence. Apart from some overriding protection of publishers because of First Amendment policies, I am sure that the law would regard those engaged in other phases of direct unsolicited mail sales of merchandise, such as neckties, hosiery, golf balls, insurance, art lessons, and the like, as both “doing business” and “engaging in a business activity.” True, this still leaves the important element of the quantity because as to no one, should a few or isolated, casual sales or transmissions have such wide extraterritorial consequences.
But here the number of papers regularly sent into Louisiana is more than enough to avoid the apprehension that this is either casual or has not been done with some articulate purpose by those responsible for the publication and distribution of this great newspaper. More than that, the Times would be the first to insist that its influence is not to be measured by these infinitesimal percentages. Because it gathers its news worldwide and likewise disseminates its news worldwide, it has, and claims to have, an influence in the process of the creation of public opinion far beyond mere numbers. Thus, for example, within the State of Louisiana, its editorial impact, and likewise its value to its advertisers, is not to be compared with a newspaper of the same circulation published in one of the rural parishes or cities of Louisiana. And considering the prodigious nature of its celebrated Sunday edition and the likely position of its Sunday subscribers in the political, economic and social life of Louisiana, its regular transmission of over 1700 Sunday Times reveals both a substantial business purpose on the part of the supplier and also a substantial demand on the part of buyers.
These subscriptions and these sales have been sought by the New York Times. The Times has collected money for these sales. This is its business. When it regularly sends into Louisiana this substantial volume of papers, both daily and on Sunday, it is engaged in the regular, repeated operation of its main business pursuits.
There is, of course, the problem of drawing the line. I agree with the Court that as to the other newspaper defendants, the line has not been crossed. Just where, between this point and that represented by the Louisiana activities of the Times, the demarcation is to be made, need not now be ascertained. It is enough to say that I am clear that the number of sales, daily and Sunday, are more than ample.
I therefore respectfully dissent as to the affirmance of the New York Times case.
. In Walker v. Savell and The Associated Press, 5 Cir., 1964, 335 F.2d 536 [No. 20682, August 11, 1964], we rested our affirmance wholly on the state construction an application of the Mississippi process statute. We did not meet the federal question.