(dissenting):
Wallace Butts, former Athletic Director of the University of Georgia, instituted this diversity action in the district court against the Curtis Publishing Company, publishers of The Saturday Evening Post. The complaint demanded $5,000,000 general and $5,000,000 punitive damages for an alleged libel contained in an article entitled, “The Story of a College Football Fix,” which was published in the March 23, 1963, issue of the Post. The action resulted in a jury verdict against the defendant for $60,-000 general damages and $3,000,000 punitive damages. The district court granted the defendant’s motion for a new trial, conditioned upon the failure of the plaintiff to remit that portion of the award of punitive damages in excess of $400,000. The district court was of the opinion that the award of $60,000 for actual damages was not excessive, but the court concluded that the award for punitive damages was “grossly excessive.” Pursuant to the district court’s order, the plaintiff filed a remittitur and thereafter the district court overruled the defendant’s motion for a new trial and entered judgment for the plaintiff in the amount of $460,000. Approximately six weeks after the district court entered judgment, the Supreme Court decided New York Times Co. v. Sullivan,1 and the defendant filed its motion for new trial under Rule 60(b) of the Federal Rules of Civil Procedure. The defendant contended that the previous judgment should be vacated and a new trial ordered in light of the New York Times Co. case. The district court denied the motion.
It is my view that the district court erred in not granting a new trial in light of New York Times Co. If mistaken in that view, I am nonetheless convinced that the part of the- judgment awarding $400,000 in punitive damages cannot stand in the light of the first, fifth and seventh amendments to the Constitution.
First, however, let me say that this record makes clear beyond controversy that the questions of fact are for the jury’s determination. The district court denied the plaintiff’s motion for a directed verdict. Plaintiff’s counsel insisted and the following colloquy ensued':
“MR. LOCKERMAN:
“ — on the point that the defendant had not, under the evidence that it has shown, proven the truth under the burden that it had of the things that it has said against the plaintiff in this article.
“THE COURT:
“Mr. Lockerman, I think it would [be] in error for this Court to withdraw that issue from the Jury.”
In ruling on the motion for new trial, however, the district court commented: “The guilt of the defendant was so clearly established by.the evidence in the case so as to have left the jury no choice but to find the defendant liable.” The majority opinion quotes that comment and adds its “Amen” thus: “We wholeheartedly agree with that appraisal.” I do not think that any such appraisal should be made. Even a casual reading of the record demonstrates that the questions of fact should be left to the jury.
I. Sullivan v. New York Times Co. necessitates reversal of the judgment in toto.
The Supreme Court in New York Times Co. v. Sullivan held that the Constitution limits state power, in a civil action brought by a public official for criticism of his official conduct, to an award of damages for a false statement made with “actual malice,” that is with knowledge that it was false or with reckless disregard of whether it was false or *721not.2 The district court did not think the New York Times Co. case governed the present action for the reason that the present plaintiff was not a “public official” as contemplated by the New York Times rule, and for the reason that ample evidence existed from which a jury could have concluded that there was reckless disregard by the defendant of whether the article was false or not. [R., p. 1467-68.] The district court stated that “[t]o hold plaintiff, an employee of the University Athletic Association, a public official would, in this Court’s opinion, be extending the ‘public official’ designation beyond that contemplated by the ruling in the case of New York Times Company v. Sullivan * * [R., p. 1467.] The plaintiff held to be a “public official” in New York Times Co. was Commissioner of Public Affairs, one of three elected Commissioners of the City of Montgomery, Alabama. His duties involved' the supervision of the Police Department, Fire Department, Department - of Cemetery and Department of Scales.3 The Supreme Court noted:
“We have no occasion here to determine how far down into the lower ranks of government employees the ‘public official’ designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included. Cf. Barr v. Matteo, 360 U.S. 564, 573-575, 79 S.Ct. 1335, 1340-1341, 3 L.Ed.2d 1434. Nor need we here determine the boundaries of the ‘official conduct’ concept. It is enough for the present case that respondent’s position as an elected city commissioner clearly made him a public official, and that the allegations in the advertisement concerned what was allegedly his official conduct as Commissioner in charge of the Police Department.4
It is clear that “public officials” as contemplated by New York Times Co. are not limited to elected officials. In Garrison v. Louisiana,5 decided subsequent to New York Times Co., the District Attorney for Orleans Parish, Louisiana, was convicted of criminal libel for issuing a statement disparaging the judicial conduct of the eight judges of the Criminal District Court. The Supreme Court’s decision, which brought the District Attorney’s statement within the purview of criticism of the official conduct of “public officials” and entitled to the benefit of the New York Times Co. rule, did not hinge on whether the eight judges were elected officials. No mention was made of how the judges obtained their positions. Moreover, it is clear from the Court’s statement in New York Times Co., quoted above, that the rule applies to “government employees.” The question reserved by the Court was “how far down into the lower ranks of government employees the ‘public official’ designation would extend * * 6 A precise formula for designation of “public officials” for the purpose of the New York Times,.rule was not attempted. Indeed, it is clear from the background and reasons for the rule that to fashion and apply a precise formula for designation of “public officials” for the purpose of the New York Times rule would be a formidable, if not impossible, task.7
The first amendment secures freedom of expression upon public questions. The constitutional safeguard, the Supreme Court has said, “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social’ *722changes desired by the people.”8 Similarly, “[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”9 Mr. Justice Brandéis has stated that “[t]hose who won our independence believed * * * that public discussion is a political duty; and that this should be a fundamental principle of the American government.” 10 New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 269-270, 84 S.Ct. 710. As was said in Garrison v. Louisiana,11 *the First and Fourteenth Amendments embody our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ New York Times Co. v. Sullivan * * It was against this background that the Supreme Court in New York Times Co. stated that the newspaper advertisement, which contained an inaccurate description of events occurring in Montgomery in connection with the civil rights movement, was an expression of grievance and protest on one of the major public issues of our time and would seem clearly to qualify for the constitutional protection.12
It is therefore necessary to examine the facts and weigh the circumstances to determine whether the allegedly defamed plaintiff is involved in the “conduct of the public business”13 to an extent which attains constitutional significance.
The plaintiff held his position of Athletic Director of The University of Georgia by reason of a contract with the Board of Regents of the University System of Georgia, which hired him as an employee. [Brief for Appellee, p. 67.] The plaintiff supervised the scheduling and location of games, planned the budget, attended to the addition of new athletic facilities, supervised ticket sales and prepared plans for band trips and performances. Moreover, he generally supervised “the entire athletic program of the school.” [R., pp. 654-55; Brief for Appellee, pp. 69-70.] The education of youth in the State of Georgia is unquestionably a matter of public concern. By his position the plaintiff is intricately involved with a significant public issue, that is, the education of the youth who attend The University of Georgia — a public institution. According to the Duke of Wellington, “The battle of Waterloo was won on the playing fields of Eton.” The ever-increasing difficulties to be faced by this nation require the utmost integrity in the training of its youth. I think the plaintiff is a “public official” as contemplated by the New York Times Co. decision.
The article, which the defendant published under the subtitle, “How Wally Butts and Bear Bryant Rigged a Game Last Fall,” concerned alleged information on Georgia plays given by Wallace Butts to Coach Paul Bryant relating to the University of Alabama and the University of Georgia football game played in Birmingham in September 1962. The article charged Wallace Butts with being corrupt and with betraying his players. It charged that the players were forced into the game like “rats in a maze” and “took a frightful physical beating.” In an italicized preface to the article, “The Editors” stated that Wallace Butts and Coach Bryant were participants in the greatest and most shocking sports scandal since that of the Chicago White Sox in the 1919 World Series. In the same preface, Wallace Butts was relegated to a *723status worse than that of “disreputable gamblers” and a corrupt person who, employed to “educate and guide young men,” betrays or sells out his pupils. [See R., pp. 88-89 (order granting motion for new trial.)]
I think it clear that the defendant’s statements are within the purview of criticism of the official conduct of public officials. As stated by the Supreme Court, “[t]he public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. New personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.14
The district court charged the jury that general damages were recoverable absent proof of actual malice. The plaintiff argues that even if the New York Times rule is applicable, the district court’s failure to charge that malice is a prerequisite for actual damages is harmless error since the district court charged that actual malice was required for an award of punitive damages and the jury awarded punitive damages. I do not agree that the district court’s charge complies with the New York Times rule.
In dealing with the question of punitive damages, the district court charged the jury:
“Where it is established that the defendant was inspired by actual malice in the publication of the defamatory matter, the jury, in its discretion, may, but is not required, to award punitive damages. As previously stated to you, actual malice encompasses the notion of ill will, spite, hatred and an intent to injure one. Malice also denotes a wanton or reckless indifference or culpable negligence with regard to the rights of others.” [R., pp. 1356] (Emphasis supplied.)
I think it clear that the district court’s charge does not embrace the New York Times Co. definition of actual malice, which is with knowledge that the statement was false or with reckless disregard of whether it was false or not. The New York Times rule emphasizes “the knowingly false statement and the false statement made with reckless disregard of the truth,” 15 and not merely intent to injure the individual or negligent disregard of the rights of others. The necessary requisite to a showing of actual malice under the New York Times standard is proof that “the lie * * * [is] knowingly and deliberately published about a public official” or published “with reckless disregard of the truth.” 16
Since the jury might well have understood the district court’s charge to allow recovery on a showing of intent to inflict harm or even the culpably negligent infliction of harm, rather than intent to inflict harm through falsehood, the charge does not comply with the New York Times standard.17
The majority of this Court have held that the defendant “has clearly waived any right it may have had to challenge the verdict and judgment on any of the constitutional grounds asserted in Times.” While I respect the judgment of the majority, I do not share that judgment.18 In short, I do not think the *724defendant may be said to have waived by “silence” a constitutional right not enunciated at the time; it was not even enunciated by the counsel who petitioned for certiorari in the New York Times Co. decision.
In the New York Times Co. case, the trial judge charged that the portions of the advertisement in issue were “libelous per se,” that “general damages need not be alleged or proved but are presumed,” that the plaintiff was entitled to recover both such “presumed” and punitive damages if the jury decided that the word's related to and concerned him and that the damages awarded were not excessive. The jury awarded damages of $500,000. The questions presented to the Supreme Court in the petition for a writ of certio-rari dealt with the award of $500,000, the sufficiency of the evidence and the lack of proof of special damages in light of the first amendment as embodied in the fourteenth.19 Conspicuously absent is any suggestion that the first amendment, as embodied in the fourteenth amendment, requires that a public official must prove actual malice against critics of his official conduct.20 Apparently this is due to the fact that the defendant’s objections in the trial court were directed to the absence of a requirement of proof of special damages.21 Only by looking at the New York Times Co. case in retrospect can it be said that the defendant has waived the great constitutional rights contemplated by the New York Times rule. But applying the same “retrospective look” to the present case,22 it is also clear that had the defendant contended the same as did the defendant in the New York Times case, i. e., that the first and fourteenth amendments were “infringed by holding the publication libelous and actionable without proof of special damage,” 23 it would not have affected the trial of the present action; for the district court ruled, in dealing with the motion for new trial, that the New York Times rule was not applicable to the present plaintiff. [R., p. 1467.]
The fact that the present defendant offered no defense under Georgia law, which provides that communications concerning the “acts of public men in their public capacity” are deemed privileged under certain conditions, cannot be said to constitute a waiver of a defense that *725the plaintiff is a “public official” under the New York Times standard. As recognized by the plaintiff, members of the athletic department are, like members of the faculty, “employees” under Georgia law and are not considered in “public office” or “officers.”24 Thus, although the Georgia statute which grants a privilege to “[c]omments upon the acts of public men in their public capacity and with reference thereto”25 appears as broad, if not broader, than the “public official” as contemplated by New York Times Co., the plaintiff recognizes that the Georgia case law results in a narrow application of the privilege and the present plaintiff is not covered.
Moreover, I think that Henry v. Collins,26 reflects that the Supreme Court does not intend to allow the great constitutional rights inherent in the New York Times rule to be ignored in a case such as the present one.
In Henry v. Collins, the most recent Supreme Court decision interpreting the New York Times rule, the Court reversed per curiam the judgments obtained by a county attorney and a chief of police in their libel actions against the petitioner. The petitioner had charged that his arrest for disturbing the peace was the result of “a diabolical plot.” The trial judge had charged “that malice does not necessarily mean hatred or ill will, but that malice may consist merely of culpable recklessness or a wilful and wanton disregard of the rights and interests of the person defamed.” The Supreme Court reversed since the trial judge’s instructions concerning malice did not comply with the New York Times rule. The trial of the plaintiff’s suit and the decision of the Mississippi Supreme Court affirming the judgments occurred shortly before the Supreme Court handed down New York Times Co. Like the present defendant, the defendant in Henry raised his first amendment question by a motion for a new trial. However, the defendant in Henry filed a motion for a directed verdict at the same time which also raised the first amendment question. Both motions were overruled. Significant is the fact that the constitutional questions raised by the motions were raised for the first time after the close of the plaintiffs’ case.27
Since the majority of this Court are not of the opinion that the judgment must be reversed, considerations of effective judicial administration do not require me to review the evidence in the present record to determine whether it could constitutionally support a judgment for the plaintiff should the plaintiff seek a new trial.28
In summary, I think the present diversity action was brought by a public official for criticism of his official conduct; therefore, he was limited to an award of damages for a false statement made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The present action was tried on a definitely stated theory which was fundamentally and constitutionally deficient. The present action should be tried on the theory set forth by the Supreme Court’s decision supervening the district court’s judgment, that is, New York Times Co. v. Sullivan. In such a situation, it has been held, as far back as 1937, that the duty of the district court is to grant the motion for a new trial.29
*726II. That part of the Judgment awarding $400,000 punitive damages violates the defendant’s rights under the first, fifth and seventh amendments.
On the question so far discussed, that is, whether New York Times v. Sullivan necessitates reversal of the judgment in toto, I would concede that there is a debatable issue of waiver on which I differ from the majority. The questions hereafter discussed had their genesis in the jury’s verdict and are unquestionably preserved for review by the defendant's first motion for new trial (R., pp. 46-48). As to the questions now to be considered, there can be no issue of waiver.
The punitive damages, either as found by the jury or as fixed by the court, are many times greater in amount than the general damages. Under the court’s instructions to the jury, the general damages included compensation “for the mental anguish, pain, mortification, and humiliation he has experienced as a result of the publication.” (R. 1354) The punitive damages included no element to which the plaintiff was entitled by way of compensation, but, according to the court’s instruction to the jury, “the purpose of punitive damages is to deter the defendant from a repetition of the offense and is a warning to others not to commit a like offense. It is intended to protect the community and has an expression of ethical indignation, although the plaintiff receives the award.” (R. 1356) The statute which allows the jury to impose punitive damages is Georgia Code Annotated § 105-2002, which reads:
“In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wfong-doer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.”
In the present case “compensation for the wounded feelings of the plaintiff” had been included in the general damages. [See R., p. 1354, quoted supra.] The trial court expanded considerably on the alternative purpose “to deter the wrongdoer from repeating the trespass”; it included also “a warning to others not to commit a like offense,” the protection of “the community,” and “an expression of ethical indignation.” [See R., p. 1356, quoted/ supra.] The jury was bound to observe the instructions of the court. For the purpose of considering whether the jury’s award of punitive damages exceeded constitutional bounds, it is of no moment that it may also have exceeded the limits set by the statute.30 The court further instructed the jury that, “ * * * if you decide to award punitive damages, the sum you award need have no relationship to any amount that you may award for general damages. It may be greater or it may be less. That is a matter which rests in your sole discretion.” [R., p. 1356.] The jury could reasonably infer that no limit was placed on the exercise of its discretion.
If the defendant corporation had been tried under the Georgia criminal libel statute,31 it might have been punished by a fine “not to exceed $1,000.” 32 As it is, the defendant stands subjected to a judgment of $400,000 for punitive damages, four hundred times the maximum fine for criminal libel. Evidently, the $400,000 sufficed to express the trial judge’s sense of “ethical indignation” while that of the jurors swelled to $3,-000,000 — 3,000 times the maximum fine which could have been imposed in a criminal prosecution.
*727Further, in a criminal proceeding, the defendant was subject to no fine unless proved guilty beyond a reasonable doubt, while here the judge charged the jury that “ * * * the defendant, Curtis Publishing Company, has the burden of proving by a preponderance of the evidence that the statements contained in this article are true * * (R., p. 1347.)
I would not imply that the return of punitive damages in the ordinary case is constitutionally suspect, for more than a century ago the Supreme Court commented :
“It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured.”
Day v. Woodworth, 1851, 54 U.S. (13 How.) 363, 370-371, 14 L.Ed. 181.
The theory of punitive damages involves a blending of the interests of society in general with those of the aggrieved individual in particular.33 There can be no serious question but that the Georgia statute permitting “additional damages”34 is constitutional upon its face.
However, as that statute was applied by (1) the court’s instructions to the jury, (2) the jury’s verdict, and (3) the reduced judgment ultimately entered by the court on motion for new trial, the award of punitive damages in the present case is tantamount to a criminal fine or penalty. As said in the very recent case of United States v. Brown, U.S. Oct. Term, 1964, 85 S.Ct. 1707, decided June 7, 1965:
“It would be archaic to limit the definition of ‘punishment’ to ‘retribution.’ Punishment serves several purposes: retributive, rehabilitative, deterrent — and preventive. One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.”
Similarly, in Trop v. Dulles, 1958, 356 U.S. 86, 96, 78 S.Ct. 590, 595, 2 L.Ed.2d 630, it was said:
“In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute.18 If the statute imposes a disability for the purposes of punishment — that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal.19 . But a statute has been considered nonpenal if it imposes' a disability, *728not to punish, but to accomplish some other legitimate governmental purpose.20
Footnote 18 to the text just quoted makes clear that the enormity of the verdict and even of the final judgment are relevant factors to be considered in determining whether the punitive damages amount to a criminal fine. I submit that there is no difference in substance between the punitive damages imposed in the present case and criminal punishment — an ex post facto punishment 400 times as great as the defendant could have anticipated from the criminal libel statute,35 and imposed without any of the procedural safeguards which are required in criminal proceedings by due process.36
If there should be any doubt that the award of $400,000 in damages strictly punitive violates the due process clause for lack of the safeguards required in criminal proceedings, there can be none, I submit, that it amounts to a prior restraint upon freedom of the press. The rule as announced in New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 277-278, 84 S.Ct. 710, has clear application to the facts of this case:
“What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90, 28 A.L.R. 1368 (1923). Alabama, for example, has a criminal libel law which subjects to prosecution ‘any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude,’ and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Alabama Code, Tit. 14, § 350. Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case — without the need for any proof of actual pecuniary loss — ■ was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication. Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is ‘a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.’ Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584.” 37
For yet another reason the award of $3,000,000 by the jury, or of $400,000 by *729the court, as punitive damages is unconstitutional and void. There was no sem-balance of definite standard or controlling guide to govern the award.38 Can any standard be more vague or arbitrary than “an expression of ethical indignation” first on the part of the jury and then on the part of the trial judge? It must be remembered that stricter standards of permissible vagueness are applicable to a rule having a potentially inhibiting effect on freedom of the press than are applicable to rules relating to less important subjects.39
Still further, I submit that the re-mittitur violates the defendant’s rights under the seventh amendment. The trial judge concluded “that the award for punitive damages in this case was grossly excessive. It is the court’s considered opinion that the maximum sum for punitive damages that should have been awarded against Curtis Publishing Company should be $400,000.00.” [R., p. 95] In another part of his opinion on motion for new trial, the district judge commented: “The award for punitive damages in the case under consideration is more than seventeen times larger than the highest award for punitive damages ever sustained.” [R., p. 93.] The district judge’s opinion is silent as to the underlying reason for such a grossly excessive verdict. The majority opinion says that “ * * * the judge necessarily rejected the idea that this verdict had been infected by such destructive elements [as passion or prejudice].” [Majority opinion, p. 717.] With deference, I submit that that conclusion is not based on the record or on anything said by the trial judge. To the contrary, in colloquy with counsel, the judge may well have disclosed his view as to why the judgment was excessive: “Suppose the court should determine that probably a certain portion of the argument was improper, and therefore the verdict was excessive, and grant you a new trial on that ground, and then it was tried again * * * ” [R., p. 1373.]
The majority of this Court labors under a different impression. It several times refers to the defendant’s new policy of “sophisticated muckraking” without benefit of what the defendant claimed that it meant by that expression [R., pp. 37-38, 1019.] :
“Defendant admits that beginning in the latter part of 1962, The Saturday Evening Post adopted an editorial policy of ‘sophisticated muckraking’ in the sense of printing the truth about the grave dangers facing the country, including the threat from outside the country and the deterioration of moral values within the country.” [R., pp. 37-38.]
It was, of course, for the jury to say whether the defendant’s explanation was true. In any event, I agree with the majority that the expression “was by itself more than enough to inflame the jury.” [Opinion, p. 714.] If, as is impliedly conceded, the jury was “inflamed,” then was not passion and prejudice the most probable cause for its grossly excessive verdict? The majority continues, “Counsel for Butts could only gild the lily.” [Opinion, p. 715.] I am tempted to facetiously comment on their plentiful supply of “gilt,” but, in a more serious vein, I must express my shock and surprise that this Court will leave standing what amounts to severe criminal punishment of the defendant in the face of the highly improper and prejudicial argument of plaintiff’s counsel’.
The majority says that “some of the argument was invited * * but is not more specific as to the particular argument of defendant’s counsel which amounted to an invitation. However, the appellee’s brief (p. 93) refers to the following :
“Mr. Cody’s exact words were: (R. 1267)
*730“ 'The point I want to make is that a man [plaintiff] that will go to one of your public officials [Comptroller General], bet enough to start into this business and a lot of other businesses while he is charged with the duty of Athletic Director, but it is worse, in order to obtain the license to do that, to misrepresent your financial condition.’ (Emphasis added).”
In response, there is attached to appellant’s reply brief as Exhibits A and B, the affidavit of Mr. Cody supported by the affidavit of Rufus L. Hixon, the official court reporter. The court reporter’s affidavit is to the effect that “after deponent had examined his stenotype notes, he telephoned Mr. Bondurant to state that the word ‘bad’ had been used by Mr. Cody in his closing argument but that the word ‘bet’ had been erroneously transcribed.” [Exhibit B, p. 8a, Appellant’s Reply Brief.]
In addition I would note that in beginning his argument, counsel for the defendant referred to his attachment to the University of Georgia and to the fact that the trial judge, opposing counsel, and he had received their training in that institution. The arguments of counsel are set forth in the record (pp. 1257-1341). They do not, in my opinion, disclose any invitation or provocation to justify or excuse the improper and inflammatory argument of plaintiff’s counsel. The following excerpts are only samples of the objectionable parts of that argument, but, I submit, that they speak so loudly as not to require comment:
“Since he talked to you about the University of Georgia and when he was there, I think I likewise haye a right to mention to you briefly that I probably have known Wally Butts longer than any man in this case. I was at Mercer University with Wally Butts when he played end on the football team there. He was in some respects a small man in stature, but he had more determination and more power to win than any man that I have ever seen in my life. I would not stand before you in this case today arguing in his behalf if I thought that Wally Butts would not tell you the truth when he raises his hand on this stand and swears to Almighty God that what he is going to tell you is the truth. [R., p. 1289]
******
“Somebody has got to stop them. There is no law against it, and the only way that type of, as I call it, yellow journalism can be stopped is to let the Saturday Evening Post know that it is not going to get away with it today, tomorrow, or any more hereafter, and the only way that lesson can be brought home to them, Gentlemen, is to hit them where it hurts them, and the only thing they know is money. They write about human beings; they kill him, his wife, his three lovely daughters. What do they care? They have got money; getting money for it.
******
“I am looking to you for my protection. Heavens (sic) knows, if you let them out of this case for five million dollars or less, and boy, it’s been worth it to them, I may be next, because they are not going to stop with that. You may be next; my wife; my children; yourself. We have got to stop them now, and you are the only twelve in the world that can stop them. [R., p. 1319.]
******
“I say, Gentlemen, this is the time we have got to get them. A hundred million dollars in advertising, would ten percent of that be fair to Wallace Butts for what they have done to him ? Would a fifty cent assessment on each of the twenty-three million issues which they wrote about him there, would that be a strain or a burden on them? I think it would teach them that we don’t have that kind of journalism down here, and we don’t want it down here, and we don’t want it to spread from 666 *731Fifth Avenue any further than that building right now.
******
“My time is up, I have done the best I can. I have lived in agony with this man since I got the first notice that this was what was going to happen, this Post article was coming out. I have seen him deteriorating even since it came out, and I have lived in agony along with him, and it may be that the personal firsthand knowledge that I have had since almost living with him and his family every day, I may have said some things or done some things or conducted myself in some manner that was displeasing to you. All I can say, I have done my best, and if I have done any of those things, don’t hold it against Wallace Butts.
“You know, one of these days, like everyone else must come to, Wallace Butts is going to pass on. No one can bother him then. The Saturday Evening Post can’t get at him then. And unless I miss my guess, they will put Wallace Butts in a red coffin with a black lid, and he will have a football in his hands, and his epitaph will read something like this: ‘Glory, Glory to old Georgia.’ ” [R, pp. 1321-22.]
If this dissent serves no other purpose, it will at least preserve for posterity the colorful peroration last quoted. Seriously, it seems to me that “[t]he public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice.” New York Central R. R. Co. v. Johnson, 1929, 279 U.S. 310, 318, 49 S.Ct. 300, 303, 73 L.Ed. 706. That would be true even if the prejudicial argument had not been followed by a grossly excessive verdict. I submit that the $3,000,000 punitive damage verdict was so clearly the result of passion and prejudice that it could not be cured by remittitur.40
It is difficult in any case to reconcile the practice of remittitur with the constitutional right of a defendant to trial by jury41 The logic of Professor Carlin’s article on Remittiturs and Additurs (1942), 49 W.Va. LQ 1, 17, 18, quoted in 6 Moore F.P. (2d ed.) 3738-39, seems to me unanswerable.42
That logic is peculiarly applicable to the circumstances of this case, where only punitive damages are reduced and there is no rule or standard by which the judge can separate any good part of the verdict from the bad. In effect, the remittitur from $3,000,000 to $400,000 represents nothing more specific than the difference between the jury’s and the judge’s sense of “ethical indignation.” The jury’s verdict cannot be recognized in the final judgment.
I appreciate that in the federal courts the right to a jury trial is to be determined as a matter of federal law in diversity as well as other actions 43 It is, however, both interesting and instructive to refer to Georgia law. The statute permitting the award of punitive damages,44 *732says that “ * * * the jury may give additional damages * * (Emphasis supplied.) Another statute prescribes: “The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” Ga.Code Ann. § 105-2015.
It has long been the law of Georgia that “[t]he trial judge has no power to order that, as a condition to the refusal of a new trial, a portion of the verdict shall be written off as excessive, except where, from the application of the law to the evidence, the excess can be accurately ascertained.” Syllabus 4 by the Court, Central of Georgia Ry. Co. v. Perkerson, 1901, 112 Ga. 923, 38 S.E. 365, 53 L.R.A. 210. That action was for the death of a railroad employee. The plaintiff recovered a verdict for $10,-833.33. The trial court ordered a new trial conditioned on the plaintiff’s consent to a remittitur of the part of the verdict in excess of $8,500.00, and, upon plaintiff’s consent, entered judgment for that amount. On defendant’s appeal, the Supreme Court of Georgia reviewed the authorities at length and reversed. A part of its opinion reads:
“It is manifest that the verdict for $8,500 was rendered by the judge, and not by the jury, and it is impossible to ascertain from the evidence in the case how he arrived at that exact amount. It is evident from his order that he was dissatisfied with the verdict, as to the amount of damages found, and that, if he had not thought he had the power of remitting a portion of the damages, he would have set the verdict aside and granted a new trial upon the ground that the verdict was excessive. The judge may have the power to determine that a verdict is grossly excessive, and for that cause to order it set aside, and yet have no power to fix the exact amount for which it should stand. ‘The power to control does not include the power to find. Like the executive veto, it arrests, but does not by its exercise bestow the power to enact.’ ”
Even more pertinent is a very recent case where the trial court, with plaintiff’s consent, reduced the exemplary or punitive damages awarded by the jury from $4,000 to $1,500. The conditional judgment for new trial was reversed with directions that a new trial be granted. The Court said:
“In determining punitive or exemplary damages it is impossible to lay down any fixed rules for a precise mathematical calculation; ‘and in every such case the amount of the finding must be largely in the power of the jury, who have no other guide but their enlightened consciences. To say, therefore, in such cases that this finding should not have exceeded a certain sum, is to invade their peculiar province, and to assume their functions; and to require a portion of the amount so found by them to be remitted, and the balance to stand as their verdict, seems to us unauthorized either by the words of the law, or by the precedents and practice in such cases.’ Savannah, Florida & Western Ry. v. Harper, 70 Ga. 119, 123-124 [citing many other authorities].
“It is our wish to make it clear that nothing held here or in any of the authorities cited is subject to the inference that a trial judge is restricted in the exercise of his exclusive discretion to grant or deny a motion for new trial on the general grounds. We do emphasize that where the determining of the amount of a particular class of damages lies exclusively with the jury, the trial court must either grant or deny a new trial on the basis of the jury’s award. The trial judge cannot condition the exercise of his discretion in granting or denying a new trial on an acceptance by the parties of a different sum selected by him.”
City Motor Exchange v. Ballinger, 1964, 110 Ga.App. 496, 138 S.E.2d 925, 926-27.
*733The seventh amendment guarantees a right of trial by jury to the defendant as well as to the plaintiff. I cannot escape the conviction that by the remittitur in this case that right has been denied to the defendant.
Both because New York Times v. Sullivan is convincing that this case was tried upon fundamentally erroneous principles of law, and because the enormous award of punitive damages and the re-mittitur violate the defendant’s constitutional rights, I would reverse the judgment of the district court. I therefore respectfully dissent.
. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See, generally, Berney, Libel and the First Amendment — A New Constitutional Privilege, 51 Va.L.Rev. 1 (1965).
. 376 U.S. 254, 279-280, 84 S.Ct. 710 (1964); Garrison v. Louisiana, 379 U.S. 64, 67, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).
. See New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 256, 84 S.Ct. 710.
. Id. at 283. n. 23, 84 S.Ct. at 727.
. 379 U.S. 64, 85 S.Ct. 209 (1964).
. New York Times Co. v. Sullivan, 376 U.S. 254, 283, n. 23, 84 S.Ct. 710, 727 (emphasis supplied).
. Cf. Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (state responsibility under the Equal Protection Clause.).
. Roth v. United States, 1957, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
. Bridges v. State of California, 1941, 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192.
. Whitney v. California, 274 U.S. 357, 375-376, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (concurring opinion).
. 379 U.S. 64, 75, 85 S.Ct. 209, (1964).
. See 376 U.S. at 271, 84 S.Ct. 710.
. Garrison v. Louisiana, 1964, 379 U.S. 64, 73, 85 S.Ct. 209, 216.
. Garrison v. Louisiana, 1964, 379 U.S. 64, 76-77, 85 S.Ct. 209.
. Id. at 75, 85 S.Ct. at 216 (emphasis supplied).
. Ibid.
. Henry v. Collins, 1965, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892; see Garrison v. Louisiana, 1964, 379 U.S. 64, 73, 85 S.Ct. 209.
. It seems to me that to constitute such a waiver there must have been ‘,‘an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 1938, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; Pay v. Noia, 1963, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837.
. In detail, the questions presented were:
“1. Whether, consistently with the guarantee of freedom of the press in the First Amendment as embodied in the Fourteenth, a state may hold libelous per se and actionable by an elected City Commissioner, without proof of special damage, statements critical of the conduct of a department of the City Government under his jurisdiction which are inaccurate in some particulars.
“2. Whether there was sufficient evidence to justify, consistently with the guarantee of freedom of the press, the determination that statements, naming no individual but critical of the Police Department under the jurisdiction of the respondent as an elected City Commissioner, were defamatory as to him and punishable as libelous per se.
“3. Whether an award of $500,000 as ‘presumed’ and punitive damages for libel constituted, in the circumstances of this case, an abridgement of the freedom of the press.”
Petition for Writ of Certiorari, p. 2, New York Times Co. v. Sullivan, 1964, 376 U.S. 254, [84 S.Ct. 710].
. In three of the 105 pages of their petition for certiorari, counsel dealt with “the doctrine espoused by the court below * * * that a public official is entitled to recover ‘presumed’ and punitive damages for a publication critical of the official conduct of a governmental agency under his general supervision, if that publication tends to ‘injure’ him ‘in his reputation’ or to ‘bring’ him ‘into public contempt’ as an official- — unless a jury is persuaded that it is entirely true.” Except for the statement of the case and facts, malice was mentioned in one sentence. See Petition for a Writ of Certiorari to the Supreme Court of Alabama, p. 13, New York Times Co. v. Sullivan.
. See Petition for a Writ of Certiorari to the Supreme Court of Alabama, p. 8, New York Times Co. v. Sullivan.
. In football jargon, “by being Monday morning quarterbacks.”
. Ibid.
. Brief for Appellee, pp. 67-69.
. Ga.Code Ann., § 105-709(6).
. 1965, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892.
. See Petition for Writ of Certiorari to the Supreme Court of Mississippi, Henry v. Pearson, p. 6. Henry v. Pearson and Henry v. Collins were decided together. See Henry v. Collins, 1965, 380 U.S. 356, 85 S.Ct. 992.
. New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 284-285, 84 S.Ct. 710.
. Sulzbacher v. Continental Cas. Co., 8 Cir. 1937, 88 F.2d 122.
It should be noted that the learned district judge in the present case did not deny the defendant’s motion for a new trial on the basis that the defendant had “waived” the constitutional rights defined in New York Times Co., but, instead, con*726sidered the motion for new trial on its merits. [R. pp. 1464-68.]
. According to the brief of the appellee, plaintiff (p. 86): “It is apparent that the purpose of this Code section in cases of defamation is to deter the defendant from republishing this one particular libel at a later date. It does not prevent the defendant from publishing any other matter, whether thought libelous of the plaintiff or not.” (Emphasis the ap-pellee’s.)
. Ga.Code Ann. § 26-2101.
. Ga.Code Ann. § 26-2101, 27-2506.
. Bryson v. Bramlett, 1958, 204 Tenn. 347, 321 S.W.2d 555, 557; Margaret Ann Super Markets v. Dent, Fla.1953, 64 So.2d 291-292; Pratt v. Duck, 1945, 28 Tenn.App. 502, 191 S.W.2d 562, 564-565; Foster v. Bourgeois, Tex.Civ.App.1923, 253 S.W. 880, 885, aff’d 113 Tex. 489, 259 S.W. 917; 15 Am.Jur. Damages, § 266; 25 C.J.S. Damages § 117.
. Ga.Code Ann. § 105-2002, quoted supra, p. 726.
“18. Of course, the severity of the disability imposed as well as all the circumstances surrounding the legislative enactment is relevant to this decision. See, generally, Wormuth, Legislative Disqualifications as Bills of Attainder, 4 Vand.L.Rev. 603, 608-610; 64 Yale L.J. 714, 722-724.
“19. E. g., United States v. Lovett, supra [328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252]; Pierce v. Carskadon, 16 Wall. 234, 21 L.Ed. 276; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356.
“20. E.g., Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549; Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Murphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.Ed. 47.”
. Ga.Code Ann. § 26-2101; compare art. 1, sec. 9, clause 3 of the Constitution.
. See amendment 5 to the Constitution.
. See also Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 306, 60 S.Ct. 900, 84 L.Ed. 1213; Near v. State of Minnesota, 1931, 283 U.S. 697, 713-714, 720-723, 51 S.Ct. 625, 75 L.Ed. 1357.
. Staub v. City of Baxley, 1958, 355 U.S. 313, 322, 78 S.Ct. 277, 2 L.Ed.2d 302.
. Smith v. People of State of California, 1959, 361 U.S. 147, 151, 80 S.Ct. 215, 4 L.Ed.2d 205; Crump v. Board of Public Instruction, 1961, 368 U.S. 278, 287, 82 S.Ct. 275, 7 L.Ed.2d 285.
. Minneapolis, St. P. & S. S. M. Ry. Co. v. Moquin, 1931, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243; Brabham v. State of Mississippi, 5 Cir. 1938, 96 F.2d 210; Ford Motor Co. v. Mahone, 4 Cir. 1953, 205 F.2d 267; National Surety Co. v. Jean, 6 Cir. 1932, 61 F.2d 197.
. See Dimick v. Schiedt, 1935, 293 U.S. 474, 482-487, 55 S.Ct. 296, 79 L.Ed. 603.
. See 6 Moore F.P. (2d ed.) ¶ 59.05(3); 3 Barron & Holtzoff ¶ 1305.1; 30 Am.Jur. New Trial, §§ 209, et seq.; 66 C.J.S. New Trial § 209, et seq.
. Simler v. Conner, 1963, 372 U.S. 221-222, 83 S.Ct. 609, 9 L.Ed.2d 691; Am-mons v. The Franklin Life Ins. Co., 5 Cir., 348 F.2d 414, decided June 28, 1965. Nonetheless, it does seem anomalous for the federal courts to require the state courts to accord the strictest guaranty of jury trial when indicated by a federal statute (e. g., the Federal Employers’ Liability Act), and then, in a diversity case to refuse to recognize the requirement of jury trial imposed by a state statute.
. Ga.Code Ann. § 105-2002, quoted supra p. 726.