ON PETITION FOR REHEARING
PER CURIAM:As Curtis’ petition for rehearing asserts that the waiver found by us is based on “alleged facts, most of which are outside the record”, and upon “unsupported statements in Butts’ brief, which for the most part are not true”, we deem additional comment appropriate.
The burden of Curtis’ brief, elaborated in the petition for rehearing, is that Times came like a bolt out of the blue, and no one either knew of, or could anticipate, that a state-created libel damage action was subject to or could be controlled by First Amendment freedom of speech constitutional limitations. Therefore, the argument runs, until Times there was no reason to assert the constitutional claim, and consequently it should not be held to the usual appellate consequence of failing properly to preserve the point.
Obviously this Court is not required to accept the mere assertions of Curtis. This Court has the duty of determining whether this contention of Curtis was well founded. While this partakes of factual evaluation in a sense, the question of waiver is a law problem — i.e., whether skilled counsel would reasonably think the contention to be plausible. Since Curtis did not seek to raise the constitutional issues before verdict and judgment, it was entirely proper to look to the sources discussed in our original opinion in order to ascertain the pertinent facts. Until the filing by Curtis of its petition for rehearing, the statements in Butts’ brief, referred to by Curtis, had not really been disputed. And now, after having given full consideration to the affidavits and to all other matters presently submitted by Curtis, we are still of the firm opinion that when all of the acts and conduct of Curtis’ attorneys are tested in the light of reason, Curtis cannot sustain the proposition that its counsel were ignorant of a constitutional claim so as to be totally excused for the complete absence of any timely assertion of it.
To its petition for rehearing, Curtis attaches affidavits made by Philip H. Strubing, whose Philadelphia, Pennsylvania law firm of Pepper, Hamilton & Scheetz, is general counsel for Curtis; by T. Eric Embry, whose Birmingham, Alabama law firm represented the New York Times Company in the case brought against it by Sullivan (Times case), and also represented Curtis in the related libel cases brought against it in the United States District Court by Coach Paul Bryant;1 and by Welborn B. Cody, who was lead trial counsel for Curtis in the Butts case. In general, the affidavits assert that Mr. Embry and his partner, Roderick Beddow, Jr., attended the trial of this Butts case as spectators only, were not consulted concerning trial strategy, and did not advise Mr. Cody concerning the constitutional questions they had raised in Times. Mr. Cody stated that “he was not aware of the constitutional issues being urged in (the Times) case.”
There is no dispute that the lawyers who sat together at the Curtis counsel table during the Butts trial were representing Curtis either in this case or in the related Bryant libel suits pending in Alabama, so presumably they were all *734on Curtis’ payroll. Unusual as it would be for them not to consult with one another concerning strategy and tactics during the two-week trial, we accept the statement that neither Mr. Embry nor Mr. Beddow informed Mr. Cody of the constitutional questions being raised in the Times case.
But what about Mr. Strubing ? In his affidavit he stated that he participated actively in the preparation of the Butts case for trial, and that he also worked actively with Mr. Embry in the preparation of the related Bryant cases. He is also on the brief in our case and participated in the arguments.
Butts’ response to the petition for rehearing refers us to the records of this Court, of which, of course, we may also take judicial notice. In Cause No. 21,152, The Curtis Publishing Company v. Honorable H. H. Grooms, United States District Judge for the Northern District of Alabama, Curtis sought a writ of mandamus to compel Judge Grooms to vacate his orders denying Curtis’ motion for change of venue. That record reflects that on February 26, 1963 (one month before the Butts suit was filed) Mr. S'trubing’s law firm, together with the firm of which Mr. Embry and Mr. Beddow are members, signed and filed in the Alabama District Court a motion to dismiss the related libel action instituted by Bryant, on the grounds, among others, that:
“To subject this defendant to liability in the circumstances complained of would abridge the freedom of speech and of press in violation of the First Amendment to the Constitution of the United States, made applicable to the states by the Fourteenth Amendment to the Constitution of the United States * * *
“To subject this defendant to liability in the circumstances complained of would be repugnant to the due process clause of the Fourteenth Amendment to the Constitution of the United States * *
In a later suit filed against Curtis by Bryant the same two law firms made identical contentions in a motion to dismiss signed and filed by each of them in the District Court on April 30, 1963, still more than three months before the trial of the Butts case.
If the First and Fourteenth Amendments were thought by Mr. Strubing and his law firm to be valid grounds for dismissal of the related Bryant cases in Alabama, why did they not assert them in the Butts case? By his own statement Mr. Strubing was an active participant in all three cases, so he certainly should have known what the rights of Curtis were. Although he now says that he was not aware of the constitutional defenses articulated by Times until that case was decided by the Supreme Court some six months after the trial of the Butts case, neither he nor his local counsel (Mr. Embry) considered a final decision in Times — or for that matter any other case — a necessary prelude to raising in the related Bryant cases, the constitutional claim previously asserted by Mr. Embry in Times.2 And for good reason, at least ever since June 1962 when those who wished could see the handwriting on the wall, certainly as the moving finger followed the voice of Mr. Justice *735Black’s celebrated “First Amendment ‘Absolutes’; A Public Interview”.3
Granted that the extra-judicial statements of a single Justice do not an opinion make,4 the Court itself in Times treats this newly announced rule as a natural development of the constitutional propositions long recognized by its extensive writings on First Amendment freedom of speech rights.5 Thus, it emphasized that the “general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.” 376 U.S. 254, 269, 84 S.Ct. 710, 720. Announcing its rule, it referred to the “oft-cited statement of a like rule * * * adopted by a number of state courts * * * found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 [20 L.R.A.,N.S., 361] (1908)” — a decision then nearly half a century old.
Whatever may have been the reasons for invoking the First Amendment claim in the Alabama suits while remaining silent in Georgia, Curtis cannot sustain the proposition that it was unaware that a defendant in a libel action might assert the constitutional claim as a defense. Counsel for Butts make a persuasive suggestion that Curtis elected to defend this case on its plea of justification, rather than raise the jurisdictional, constitutional and other affirmative defenses 6 it had raised in the Alabama Bryant cases, in order to get the right to open and close the arguments.
Nor, as suggested in Judge Rives’ dissenting opinion on denial of rehearing, do we consider that our action is at all inconsistent with the principle of law expressed for the Court by Judge Wisdom in Commissioner of Internal Revenue v. Chase Manhattan Bank, 5 Cir., 1958, 259 *736F.2d 231, 238, cert. denied, 359 U.S. 913, 79 S.Ct. 589, 3 L.Ed.2d 575.7
In that case the legal theories developed in this Court for the first time could be fairly disposed of on the record, and the opposing party was not prejudiced by the use of other theories.8 However, here Curtis seeks a reversal so that a new record based on different theories may be made at another trial. The wholesome desire “to secure the just * * * determination of every action”, neither *737dispenses with the rules of procedure, nor forecloses the applicability of the doctrine of waiver when all of the elements which constitute that doctrine are present, as in the present case.
As to all other contentions in the petition for rehearing and supporting brief, we adhere without further comment to the holdings in our original opinion. Finding no error, see Rule 25a of this Court, the petition for rehearing is denied.
Petition denied.
. Civil Actions Nos. 63-2-W and 63-166, brought in the Western and Southern Divisions respectively, of the Northern District of Alabama.
. That these constitutional claims were well preserved by these counsel in Times without the learning which was to come several years later through the words of the Times opinion is recognized by the Court itself: “The (Alabama trial) judge rejected petitioner’s contention that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments.” 376 U.S. 254, 263, 84 S.Ct. 710, 716.
The Alabama Supreme Court also recognized the assertion of these constitutional claims for it “rejected petitioner’s constitutional contentions with the brief statements that ‘The First Amendment of the U.S. Constitution does not protect libelous publications * * [273 Ala. 656], at 676, 144 So.2d [25] at 40.” 376 U.S. 254, 264, 84 S.Ct. 710, 717.
. Justice Black and First Amendment “Absolutes”; A Public Interview, Edmond Cahn and Mr. Justice Hugo L. Black, 37 NYU Law Review 549 (June 1962). The background of the interview was the Justice’s lecture entitled “The Bill of Rights”, delivered at the New York University School of Law, February 17, 1960, published at 35 NYU Law Review 865 (1960). See, e.g.;
“CAHN: Do you make an exception in freedom of speech and press for the law of defamation? That is, are you willing to allow people to sue for damages when they are subjected to libel or slander?
“JUSTICE BLACK: My view of the First Amendment * * * is that it said Congress should pass none of these kinds of laws. * * * I have no doubt myself that the provision * * * intended that there should be no libel or defamation law in the United States under the United States Government, just absolutely none so far as I am concerned. * * * ” (557)
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“My belief is that the First Amendment was made applicable to the states by the Fourteenth. I do not hesitate, so far as my own view is concerned, as to what should be and what I hope will sometime be the constitutional doctrine that just as it was not intended to authorize damage suits for mere words as distinguished from conduct as far as the Federal Government is concerned, the same rule should apply to the states.
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“I am for the First Amendment from the first word to the last. I believe it means what it says, and it says to me, ‘ * * * Government shall not attempt to control the ideas a man has. * * * Government shall not abridge freedom of the press or speech. It shall let anyone talk in this country.’ * * * Let them talk! In the American way, we will answer them.” (563)
. They were shortly to be announced eat cathedra in his concurring opinion in. Times, 376 U.S. 254, 293, 84 S.Ct. 710, joined by Mr. Justice Douglas and substantially echoed by Mr. Justice Goldberg (with Justice Douglas), 376 U.S. 254, 297, 84 S.Ct. 710.
. See the extended annotations, The Supreme Court and the Right of Free Speech and Press, 11 L.Ed.2d 1116-1175; 2 L.Ed.2d 1706; 93 L.Ed. 1151.
. These would include the conditional privilege recognized by § 105-709(6) of the Georgia Code concerning published statements relating to the “acts of public men in their public capacity”. See Note 20, 376 U.S. 254 at 280, 84 S.Ct. 710.
. Actually, in this tax case the theory later developed for the first time in this court had been raised in the bank’s petition filed in the lower court and agreed upon by both parties at the trial. The Court, in deciding to consider the development of the theory, stated that the “[t]ax liability as to the testamentary trust depends on whether Daniel’s will put Marie to an election. The question is in the ease. A just determination of the appeal requires us to decide it.” (Emphasis supplied). This case involved the gift tax liability under three trusts created by the decedent, “Daniel”, one of which was a testamentary trust of his residuary estate from which his wife, Marie, was to receive the income for life, the remainder to be divided among Daniel’s descendants. In the Tax Court, the bank’s petition stated that “the estate was still under administration and that ‘no determination has yet been made as to whether or not the said Marie Elizabeth Moran has elected to take under the will’ * * * that Marie’s 'motive ‘in not taking against the will was to benefit herself’ ”. At the trial the Commissioner and the bank agreed to assume that Daniel’s will put Marie to an election and that Marie’s receipt of income from the trust was sufficient to show that she had elected to take under the will. They differed only as to whether the effect of the election was that she had made a taxable gift. The Tax Court held that Daniel’s will put Marie to an election and that Marie’s “acquiescence” in the testamentary trust constituted a taxable gift. On appeal, for the first time in the case, the defendant made the assertion that Daniel’s will did not purport to dispose of Marie’s share and therefore she was not put to an election, thereby denying that Marie transferred her share of the community estate to the trust. In answer to the Commissioner’s objection to the bank’s new argument that Marie was not put to an election, and its contention that the taxpayer is not at liberty to urge as a ground for reversal a point not raised in the court below, the court states that “[ijndeed, * * * the taxpayer invited error. * * * Worse, the invitation was accepted. But an appellant has no vested right in an opponent’s error of law in the lower court — ■ especially when the protesting appellant is the Commissioner of Internal Revenue * * * (who) owes a duty to all taxpayers * * * to see that the tax law is applied justly. * * * Federal procedure is moving away from what Pound calls ‘the sporting theory of justice’, Wigmore the ‘instinct of giving the game fair play’, and Arthur Vanderbilt the theory of procedure as ‘a contest between two legal gladiators’. We are a Court ‘to secure the just * * * determination of every action’. Rule 1, Federal Rules of Civil Procedure, 28 U.S.C.A. Daniel’s will is in the record and speaks for itself. ‘(W)here, as here, the case below was tried, not upon any misapprehension of the facts, but upon a misapprehension of the effects of those facts in law, appellant may not be prevented from pressing here for the application, to the proven facts, of the correct principles of law.’ * * * ‘We see no reason why we should make what we think would be an erroneous decision, because the applicable law was not insisted upon by one of the parties.’ ”
See also Jack Ammann Photogrammetric Engineers, Inc. v. Commissioner of Internal Revenue (5th Cir. 1965) 341 F.2d 466, a tax case citing Commissioner of Internal Revenue v. Chase Manhattan Bank, in determining that since legal theories were there being urged “that can be fairly disposed of on the record before us, we do not consider that we should reuse to consider them merely because they were not urged in the Tax Court.”
. See Glavic v. Beechie, (5th Cir. 1964) 340 F.2d 91. The majority refused to consider a question not presented for determination in the District Court. Judge Wisdom in his concurring opinion stated, in opposing this decision, that he “would allow either party on appeal to advance a new theory or to change his theory of the case — if: (1) all the relevant evidence is before the Court, (2) the opposing party has had adequate time to brief the point, and (3) the opposing party is not prejudic(ed) by not having introduced evidence below that would have militated against the validity or effect of the new theory.”