Curtis Pub. Co. v. Butts,
388 U.S. 130 (1967)

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U.S. Supreme Court

Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967)

Curtis Publishing Co. v. Butts

No. 37

Argued February 23, 1967

Decided June 12, 1967*

388 U.S. 130


In No. 37, respondent brought a diversity libel action in federal court seeking compensatory and punitive damages for an article which was published in petitioner's magazine accusing respondent of conspiring to "fix" a football game between the University of Alabama and the University of Georgia, where he was privately employed as the athletic director. The article was based upon an affidavit concerning a telephone conversation between respondent and the Alabama coach which the affiant, Burnett, had accidentally overheard. Respondent challenged the truth of the article and claimed a serious departure by the magazine from good investigative standards of the accuracy of its charges amounting to reckless and wanton conduct. He submitted evidence at the trial showing, inter alia, that petitioner's magazine, which had instituted a policy of "sophisticated muckraking," knew that Burnett was on criminal probation but had published the story without any independent support for his affidavit; that it did not, before publication, view his notes (the information in which, if not valueless, would be readily available to any coach); that the magazine did not interview a person with Burnett when the phone call was overheard, view the game films, or check for any adjustments in Alabama's plans after the information was divulged, and that the magazine assigned the story to a writer not a football expert and made no effort to have such an expert check the story. The jury was instructed on the issue of truth as a defense and was also instructed that it could award punitive damages and could assess the reliability and the nature of the sources of the magazine's information and its care in checking the assertions, considerations relevant tn determining whether the magazine had proceeded with "wanton and reckless indifference." The jury returned a verdict of general and punitive damages which was reduced by remittitur. The trial court rejected the defense's new trial motion based on New York Times Co. v. Sullivan, 376 U. S. 254 (which was decided after the filing of the complaint in and trial of this case), holding that decision

Page 388 U. S. 131

inapplicable to one like petitioner not a public official. It also held the evidence amply supported the conclusion that the magazine had acted in reckless disregard of whether the article was false or not. The Court of Appeals affirmed on the merits. It did not reach the constitutional claim based on New York Times, holding that petitioner had waived the right to make that challenge, since some of its lawyers had been involved in the latter case, yet the defense was based solely on the issue of truth. In No. 150, petitioner, a news association, published a dispatch about a massive riot on the University of Mississippi campus attending federal efforts to enforce a court decree ordering a Negro's enrollment. The dispatch stated that respondent, a politically prominent figure whose statements on federal intervention had been widely publicized, had taken command of the violent crowd and led a charge against federal marshals trying to enforce the court's decree, had encouraged violence and given technical advice to the rioters. Respondent brought a libel action in the Texas state courts for compensatory and punitive damages. Petitioner's defense was based on truth and constitutional rights. The evidence showed that the dispatch had been made on the scene and almost immediately reported to the petitioner by a competent correspondent. There was no significant showing of improper preparation of the dispatch, or any prejudice by petitioner or its correspondent. The jury was instructed that compensatory damages could be awarded if the dispatch was not substantially true and that punitive damages could be added if the article was actuated by ill will or entire want of care. The jury returned a verdict for both compensatory and punitive damages. The trial court refused to enter an award for the latter. The court held New York Times inapplicable, but that, if applicable, it would require a verdict for the petitioner, since there was no evidence of malice. Both sides appealed. The Texas Court of Civil Appeals affirmed, and the Texas Supreme Court denied review.

Held: The judgment in No. 37 is affirmed. The judgment in No. 150 is reversed, and the case remanded. Pp. 133-174.

No. 37, 351 F.2d 702, affirmed; No. 150, 393 S.W.2d 671, reversed and remanded.


1. Petitioner's failure in No. 37 to raise the constitutional defense before trial constituted no waiver of its right to do so after New York Times was decided. Pp. 388 U. S. 142-145.

Page 388 U. S. 132

2. The New York Times rule prohibiting a public official from recovering damages for defamatory falsehood relating to his official conduct absent actual malice as therein defined, though necessary there to protect against prosecutions close to seditious libel for criticizing official conduct, should not be inexorably applied to defamation actions by "public figures" like those here, where different considerations are present. Pp. 388 U. S. 148, 388 U. S. 152-154.

3. A "public figure" who is not a public official may recover damages for defamatory falsehood substantially endangering his reputation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. P. 388 U. S. 155.

4. In view of the court's instructions in No. 37, the jury must have decided that the magazine's investigation was grossly inadequate, and the evidence amply supported a finding of the highly unreasonable conduct referred to above. Pp. 388 U. S. 156-158.

5. In No. 150, where the courts found the evidence insufficient to support more than a finding of even ordinary negligence, respondent is not entitled to damages. Pp. 388 U. S. 158-159.

6. Misconduct sufficient to justify compensatory damages also justifies punitive damages; the same constitutional standards apply to both. Pp. 388 U. S. 159-161.

THE CHIEF JUSTICE concluded that:

1. The New York Times standard applies to defamation actions by "public figures" as well as those by "public officials." Pp. 388 U. S. 162-165.

2. The judgment in No. 150, being in clear conflict with New York Times, must be reversed. P. 388 U. S. 165.

3. Retrial of No. 37 is not necessary, since the jury's verdict therein, in view of instructions which invoked the elements later held necessary in New York Times, most probably was based on the requirement of reckless disregard for the truth enunciated in that case. Pp. 388 U. S. 165-167.

4. The overlapping of counsel in No. 37 with counsel in New York Times and in a libel action against petitioner by the Alabama coach, in which a First Amendment defense was also made, compels the conclusion that the failure to defend on those grounds here was deliberate. Pp. 388 U. S. 167-168.

5. The evidence shows that petitioner in No. 37 acted in reckless disregard for the truth. Pp. 388 U. S. 168-170.

Page 388 U. S. 133

MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that, in order to dispose of No. 150, he concurs in the grounds stated by THE CHIEF JUSTICE which are summarized in paragraphs 1 and 2, supra, of THE CHIEF JUSTICES conclusions, but does not recede from his previously expressed views about the much wider press and speech freedoms of the First and Fourteenth Amendments. P. 388 U. S. 170.

MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, concluded that the grounds stated by THE CHIEF JUSTICE which are summarized in paragraphs 1 and 2, supra, of THE CHIEF JUSTICE's conclusions in No. 150 govern that case. P. 388 U. S. 172.

Primary Holding

A defamation cause of action may accrue when the media is reckless in publishing allegations about public figures without checking their accuracy.


Georgia Bulldogs football coach Wally Butts and Alabama Crimson Tide football coach Bear Bryant brought libel claims against the Saturday Evening Post. This magazine had printed an article alleging that the two head coaches, who were in the same highly competitive athletic conference, had colluded to fix the outcomes of games in this heated rivalry. Butts received a judgment of $460,000 in damages, after Bryant had settled out of court for $300,000. Paying such a massive sum threatened to cripple the magazine, which appealed the award.



  • John Marshall Harlan II (Author)
  • Tom C. Clark
  • Potter Stewart
  • Abe Fortas

In the wake of the 1964 decision in New York Times Co. v. Sullivan, the Court was compelled to consider the difference (if any) between public officials and public figures who are bringing defamation claims. Harlan found that the standard of proof should be comparable in these types of lawsuits, allowing plaintiffs to recover damages for information that was not properly fact-checked and recklessly published even if the media outlet did not know that it was false. This echoed the actual malice requirement in New York Times Co. v. Sullivan, which included knowledge and recklessness as the mental states that could give rise to liability notwithstanding First Amendment protections.


  • Earl Warren (Author)

Concurrence/Dissent In Part

  • Hugo Lafayette Black (Author)
  • William Orville Douglas

Concurrence/Dissent In Part

  • William Joseph Brennan, Jr. (Author)
  • Byron Raymond White

Case Commentary

The court found that public figures are essentially the same as public officials in terms of their access to the media, public influence, and other opportunities to vindicate their reputations. If there is a false statement that is made by mistake, then, they should not need to resort to the courts to correct it.

If this damages award seems excessive, it is worth noting that the football coaches each initially sought $10 million, a spectacular sum by the standards of the time. All the same, even the amount that was awarded by the jury dealt a devastating blow to the Curtis Publishing Company, which ran the Saturday Evening Post. Both of them went out of business within two years.

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