The petition for certiorari in this case presents the question
of absolute immunity of government officials from defamation suits.
A narrower question, the defense of qualified privilege, had been
urged in the District Court and the Court of Appeals, but not
considered by the Court of Appeals on the ground that it had been
waived.
Held: certiorari is granted, the judgment of the Court
of Appeals is vacated, and the case is remanded to that court with
directions to consider the defense of qualified privilege. Pp.
355 U. S.
171-173.
244 F.2d 767, judgment vacated and case remanded.
PER CURIAM.
The petition for certiorari is granted. The petition presents
this question:
"Whether the absolute immunity from defamation suits accorded
officials of the Government with respect to acts done within the
scope of their official authority extends to statements to the
press by high policymaking officers, below cabinet or comparable
rank, concerning matters committed by law to their control or
supervision."
In the District Court and the Court of Appeals, the litigation
was not so confined. By his motion for a directed verdict and
requested instructions, petitioner also presented to the District
Court the defense of qualified privilege. On appeal to the Court of
Appeals, petitioner, in his brief, raised only the question of
absolute immunity, but, on reconsideration, he urged the court
also
Page 355 U. S. 172
to pass on the defense of qualified privilege. This that court
refused to do, on the ground that petitioner, because of the
position he had initially taken on the appeal, had waived the
defense. In so holding, the court relied on its Rule 17(c)(7),
requiring an appellant to set forth in his brief a statement of the
points on which he intends to rely, and Rule 17(i), which provides
that
"Points not presented according to the rules of the court, will
be disregarded, though the court, at its option, may notice and
pass upon a plain error not pointed out or relied upon."
The scope of the litigation in the Court of Appeals cannot
lessen this Court's duty to confine itself to the proper exercise
of its jurisdiction and the appropriate scope of the judicial
review. Thus, an advisory opinion cannot be extracted from a
federal court by agreement of the parties,
see Swift & Co.
v. Hocking Valley R. Co., 243 U. S. 281,
243 U. S. 289,
and, no matter how much they may favor the settlement of an
important question of constitutional law, broad considerations of
the appropriate exercise of judicial power prevent such
determinations unless actually compelled by the litigation before
the Court.
United States v. CIO, 335 U.
S. 106,
335 U. S. 110.
Likewise,
"Courts should avoid passing on questions of public law even
short of constitutionality that are not immediately pressing. Many
of the same reasons are present which impel them to abstain from
adjudicating constitutional claims against a statute before it
effectively and presently impinges on such claims."
Eccles v. Peoples Bank, of Lakewood Village,
333 U. S. 426,
333 U. S. 432.
Especially in a case involving, on the one hand, protection of the
reputation of individuals, and, on the other, the interest of the
public in the fullest freedom of officials to make disclosures on
matters within the scope of their public duties, this Court should
avoid rendering a decision beyond the obvious requirements of the
record. In the present case, a ground
Page 355 U. S. 173
far narrower than that on which the Court of Appeals rested its
decision, the defense of qualified privilege, was consistently
pressed in the District Court and in fact urged in the Court of
Appeals itself. In these circumstances, we think that the broad
requirements of judicial power and its proper exercise should lead
to consideration of the defense of qualified privilege.
To that end, the judgment of the Court of Appeals is vacated,
and the case remanded to that court with directions to pass upon
petitioner's claim of a qualified privilege.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE joins, agrees
with the disposition of this case as expressed in the last
paragraph.
MR. JUSTICE BRENNAN would grant the petition and consider the
question presented.
MR. JUSTICE DOUGLAS, dissenting.
The Court of Appeals ruled that the question of the defense of
qualified privilege on which we vacate and remand had been "waived"
by petitioner, and therefore should not be considered by the Court
of Appeals under its Rules. That question therefore is not here for
us, nor should it be reached by the Court of Appeals. I cannot say
that the Court of Appeals misconstrued its own Rules
* or committed
palpable error in refusing to consider
Page 355 U. S. 174
the question or unceremoniously and improperly reached for a
constitutional question which it should have sought to avoid. Under
these circumstances, it is an unwarranted exercise of our
supervisory powers to require that the question be considered by
the Court of Appeals. Instead, we should exercise our discretion by
denying certiorari.
*
"A concise statement of the points on which appellant intends to
rely, set forth in separate, numbered paragraphs. Each point shall
refer to the alleged error upon which appellant intends to
rely."
Rule 17(c)(7).
"Points not presented according to the rules of the court, will
be disregarded, though the court, at its option, may notice and
pass upon a plain error not pointed out or relied upon."
Rule 17(i).