(dissenting):
In my opinion the majority errs in concluding that it is bound by Buckley v. New York Times Co., supra, as being a case involving substantially identical facts. Apart from the demonstrable dif*581ference between the Louisiana statute involved in Buckley and the Alabama statute with which we are concerned,1 the quality and nature of the activity of The Times within the two states were factually dissimilar.
In Buckley, the court examined the business activities of The Times within the State of Louisiana and found that its staff reporters were occasionally sent there on special assignments. However, the offending article in that case did not arise out of such an assignment trip. No member of its staff participated in gathering information for or in writing the article which was prepared solely by an employee of the Associated Press. With the ipse dixit of the majority that “[T]he Associated Press, an association of member newspapers, is as much an agent of the Times in this respect as one of the Times’ own news staff”, I disagree. Thus, the only connection The Times Company had with the State of Louisiana was the sending of the newspapers containing the article complained of into the state.
This case stands differently. The facts are undisputed that Salisbury, an admitted agent of The Times, spent five days in the Birmingham area interviewing people and gathering material for a “situation story.” From notes jotted down during this time he prepared the preliminary draft of the article which became the basis of plaintiff’s claim while on a plane en route from Birmingham to Newark, New Jersey. Clearly, the allegedly libelous article arose out of the newsgathering activities of Salisbury in Alabama.
In my opinion this direct relation between such activities and the cause of action provides a constitutional basis for in personam jurisdiction. In International Shoe Co. v. Washington, 326 U.S. 310, at 319, 66 S.Ct. 154, at 160 (1945), the Supreme Court stated:
“But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.” (Emphasis added.)
In Elkhart Engineering Corp. v. Dornier Werke, 343 F.2d 861, 868 (5th Cir.1965), this court declared as follows:
“We therefore hold that Alabama may, consistent with the due process clause of the Fourteenth Amendment, assert jurisdiction over a non-resident, non-qualifying corporation in suits on a claim of liability for tortious injury arising out of activity of the non-resident within the state, even though only a single transaction is involved, and regardless of whether the activity is considered dangerous.”
Substantially the same view is also expressed by the writers of the article Developments in the Law: State-Court jurisdiction, 73 Harv.L.Rev. 909, 926 (1960).
With gaze too foreshortened by concentration upon Buckley, the majority fails to come to grips with the highly relevant facts, present here but not there, that the alleged libel with which we are concerned not only is connected with but grew out of the calculated and directed activities of an accredited agent of The Times within the State of Alabama. *582These additional facts, in my opinion, distinguish this case from Buckley and provide a constitutional basis for the exercise of jurisdiction over defendant.
The majority seeks to shore up Buckley to the point of reconciling it with Elkhart by adverting to first amendment considerations. If such considerations underlie the opinion of the court in Buckley they are not articulated. It is of course true that “ * * * freedom of the press, which [is] protected by the First Amendment from infringement by Congress, [is] among the fundamental, personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.” 2 And I would agree that application of the “doing any business” phrase of the Alabama long-arm statute to the distribution of periodicals by, or newsgathering activities of agents (unrelated to the asserted cause of action) in behalf of a nonresident, non-qualifying publishing company, either or both, to obtain in personam jurisdiction would be constitutionally impermissible. An attempt by a state to condition the right of such a company to distribute its publications or to gather news upon its submission to the jurisdiction of local courts would, in my opinion, constitute the imposition of a prior restraint of or a condition upon rights and liberties protected by the first amendment. Evident pragmatic considerations suggest that it might be equated with an effort by a state to levy a license tax on newspaper advertising3 or by a city to forbid the distribution of literature without first obtaining written permission.4 But the quality and nature of defendant’s activities in this case convince me that the assumption of jurisdiction does not intrude upon first amendment rights and liberties.
Since the majority has concluded that the trial court was without jurisdiction, its ensuing discussion of the merits is frank dictum as to which I forbear any comment. .
I respectfully dissent.
. The distinction between the two statutes with reference to the efforts of the respective states to subject non-residents to in personam jurisdiction by extraterritorial service of process as limited by the due process clause of the fourteenth amendment, tested by the expanding concepts from Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) to McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) is graphically pointed up in Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (5th Cir. 1966) (Rives, J., concurring).
. Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938).
. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936).
. Lovell v. City of Griffin, supra.