Appellant, a District Attorney in Louisiana, during a dispute
with certain state court judges of his parish, accused them at a
press conference of laziness and inefficiency and of hampering his
efforts to enforce the vice laws. A state court convicted him of
violating the Louisiana Criminal Defamation Statute, which, in the
context of criticism of official conduct, includes punishment for
true statements made with "actual malice" in the sense of ill-will,
as well as false statements if made with ill-will or without
reasonable belief that they were true. The state supreme court
affirmed the conviction, holding that the statute did not
unconstitutionally abridge appellant's rights of free
expression.
Held:
1. The Constitution limits state power to impose sanctions for
criticism of the official conduct of public officials, in criminal
cases as in civil cases, to false statements concerning official
conduct made with knowledge of their falsity or with reckless
disregard of whether they were false or not.
New York Times Co.
v. Sullivan, 376 U. S. 254,
followed. Pp.
379 U. S.
67-75.
2. Appellant's accusations concerned the judges' official
conduct and, did not become private defamation because they might
also have reflected on the judges' private character. Pp.
379 U. S.
76-77.
244 La. 787,
154
So. 2d 400, reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellant is the District Attorney of Orleans Parish, Louisiana.
During a dispute with the eight judges of
Page 379 U. S. 65
the Criminal District Court of the Parish, he held a press
conference at which he issued a statement disparaging their
judicial conduct. As a result, he was tried without a jury before a
judge from another parish and convicted of criminal defamation
under the Louisiana Criminal Defamation Statute. [
Footnote 1] The principal charges alleged
to
Page 379 U. S. 66
be defamatory were his attribution of a large backlog of pending
criminal cases to the inefficiency, laziness, and excessive
vacations of the judges, and his accusation that, by refusing to
authorize disbursements to cover the expenses of undercover
investigations of vice in New Orleans, the judges had hampered his
efforts to enforce the vice laws. In impugning their motives, he
said:
"The judges have now made it eloquently clear where their
sympathies lie in regard to aggressive vice investigations by
refusing to authorize use of the DA's funds to pay for the cost of
closing down the Canal Street clip joints. . . ."
". . . This raises interesting questions about the racketeer
influences on our eight vacation-minded judges. [
Footnote 2] "
Page 379 U. S. 67
The Supreme Court of Louisiana affirmed the conviction, 244 La.
787,
154 So. 2d
400. The trial court and the State Supreme Court both rejected
appellant's contention that the statute unconstitutionally abridged
his freedom of expression. We noted probable jurisdiction of the
appeal. 375 U.S. 900. Argument was first heard in the 1963 Term,
and the case was ordered restored to the calendar for reargument,
377 U.S. 986. We reverse.
I
In
New York Times Co. v. Sullivan, 376 U.
S. 254, we 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 not." 376 U.S. at 279-280. At the outset, we must decide
whether, in view of the differing history and purposes of criminal
libel, the
New York Times rule also limits state power to
impose criminal sanctions for criticism of the official conduct of
public officials. We hold that it does.
Where criticism of public officials is concerned, we see no
merit in the argument that criminal libel statutes serve interests
distinct from those secured by civil libel laws, and therefore
should not be subject to the same limitations. [
Footnote 3] At common law, truth was no defense to
criminal
Page 379 U. S. 68
libel. Although the victim of a true but defamatory publication
might not have been unjustly damaged in reputation by the libel,
the speaker was still punishable, since the remedy was designed to
avert the possibility that the utterance would provoke an enraged
victim to a breach of peace. That argument is well stated in Edward
Livingston's explanation of the defamation provisions of his
proposed penal code for Louisiana:
"In most cases, the connexion between cause and effect exists
between the subject of this chapter and that of a subsequent one --
Of Duels. Defamation, either real or supposed, is the cause of most
of those combats, which no laws have yet been able to suppress. If
lawgivers had originally condescended to pay some attention to the
passions and feelings of those for whom they were to legislate,
these appeals to arms would never have usurped a power superior to
the laws; but by affording no satisfaction for the wounded feelings
of honour, they drove individuals to avenge all wrongs of that
description, denied a place in the code of criminal law. Insults
formed a title in that of honour, which claimed exclusive
jurisdiction of this offence."
Livingston, A System of Penal Law for the State of Louisiana, at
177 (1833). [
Footnote 4]
Page 379 U. S. 69
Even in Livingston's day, however, preference for the civil
remedy, which enabled the frustrated victim to trade chivalrous
satisfaction for damages, had substantially eroded the breach of
the peace justification for criminal libel laws. In fact, in
earlier, more violent, times, the civil remedy had virtually
preempted the field of defamation; except as a weapon against
seditious libel, the criminal prosecution fell into virtual
desuetude. [
Footnote 5]
Changing mores and the virtual disappearance of criminal libel
prosecutions lend support to the observation that,
". . . under modern conditions, when the rule of law is
generally accepted as a substitute for private physical measures,
it can hardly be urged that the maintenance of peace requires a
criminal prosecution for private defamation."
Emerson, Toward a General Theory of the First Amendment, 72 Yale
L.J. 877, 924 (1963). [
Footnote
6] The absence in the Proposed Official Draft of the Model
Penal Code of the American Law Institute of any criminal libel
statute on the Louisiana pattern reflects this modern consensus.
The ALI Reporters, in explaining the omission, gave cogent evidence
of the obsolescence of Livingston's justification:
"It goes without saying that penal sanctions cannot be justified
merely by the fact that defamation is evil
Page 379 U. S. 70
or damaging to a person in ways that entitle him to maintain a
civil suit. Usually we reserve the criminal law for harmful
behavior which exceptionally disturbs the community's sense of
security. . . . It seems evident that personal calumny falls in
neither of these classes in the U.S.A., that it is therefore
inappropriate for penal control, and that this probably accounts
for the paucity of prosecutions and the near desuetude of private
criminal libel legislation in this country. . . ."
Model Penal Code, Tent. Draft No. 13, 1961, § 250.7, Comments,
at 44.
The Reporters therefore recommended only narrowly drawn statutes
designed to reach words tending to cause a breach of the peace,
such as the statute sustained in
Chaplinsky v. New
Hampshire, 315 U. S. 568, or
designed to reach speech, such as group vilification, "especially
likely to lead to public disorders," such as the statute sustained
in
Beauharnais v. Illinois, 343 U.
S. 250. Model Penal Code,
supra, at 45. But
Louisiana's rejection of the "clear and present danger" standard as
irrelevant to the application of its statute, 244 La. at 833, 154
So. 2d at 416, coupled with the absence of any limitation in the
statute itself to speech calculated to cause breaches of the peace,
leads us to conclude that the Louisiana statute is not this sort of
narrowly drawn statute.
We next consider whether the historical limitation of the
defense of truth in criminal libel to utterances published "with
good motives and for justifiable ends" [
Footnote 7]
Page 379 U. S. 71
should be incorporated into the
New York Times rule as
it applies to criminal libel statutes; in particular, we must ask
whether this history permits negating the truth defense, as the
Louisiana statute does, on a showing of
Page 379 U. S. 72
malice in the sense of ill-will. The "good motives" restriction
incorporated in many state constitutions and statutes to reflect
Alexander Hamilton's unsuccessfully urged formula in
People v.
Croswell, 3 Johns.Cas. 337, 352 (N.Y.Supreme Court 1804),
liberalized the common law rule denying any defense for truth.
See Ray, Truth: A Defense to Libel, 16 Minn.L.Rev. 43,
46-49 (1931); Kelly, Criminal Libel and Free Speech, 6 Kan.L.Rev.
295, 326-328 (1958). We need not be concerned whether this
limitation serves a legitimate state interest to the extent that it
reflects abhorrence that
"a man's forgotten misconduct, or the misconduct of a relation,
in which the public had no interest, should be wantonly
raked up, and published to the world, on the ground of its being
true.?"
9 Hansard, Parliamentary Debates Hist. Eng. 1230 (3d series)
(H.L. June 1, 1843) (Report of Lord Campbell) (emphasis supplied).
[
Footnote 8] In any event,
where the criticism is of
Page 379 U. S. 73
public officials and their conduct of public business, the
interest in private reputation is overborne by the larger public
interest, secured by the Constitution, in the dissemination of
truth. [
Footnote 9] In short,
we agree with the New Hampshire court in
State v. Burnham,
9 N.H. 34, 42-43, 31 Am.Dec. 217, 221 (1837):
"If, upon a lawful occasion for making a publication, he has
published the truth, and no more, there is no sound principle which
can make him liable, even if he was actuated by express malice. . .
."
"It has been said that it is lawful to publish truth from good
motives, and for justifiable ends. But this rule is too narrow. If
there is a lawful occasion -- a legal right to make a publication
-- and the matter true, the end is justifiable, and that, in such
case, must be sufficient."
Moreover, even where the utterance is false, the great
principles of the Constitution which secure freedom of expression
in this area preclude attaching adverse consequences to any except
the knowing or reckless falsehood. Debate on public issues will not
be uninhibited if the speaker must run the risk that it will be
proved in court that he spoke out of hatred; even if he did speak
out of hatred, utterances honestly believed contribute to the free
interchange of ideas and the ascertainment of truth. Under a rule
like the Louisiana rule, permitting a finding of malice based on an
intent merely to inflict harm, rather than an intent to inflict
harm through falsehood,
"it becomes a hazardous matter to speak out against a popular
politician, with the result that the dishonest and incompetent will
be shielded."
Noel, Defamation
Page 379 U. S. 74
of Public Officers and Candidates, 49 Col.L.Rev. 875, 893
(1949). Moreover,
"[i]n the case of charges against a popular political figure . .
. , it may be almost impossible to show freedom from ill-will or
selfish political motives."
Id. at 893, n. 90. Similar considerations supported our
holdings that federal officers enjoy an absolute privilege for
defamatory publication within the scope of official duty,
regardless of the existence of malice in the sense of ill-will.
Barr v. Matteo, 360 U. S. 564;
Howard v. Lyons, 360 U. S. 593;
cf. Gregoire v. Biddle, 177 F.2d 579 (C.A.2d Cir. 1949).
What we said of Alabama's civil libel law in
New York
Times, 376 U.S. at
376 U. S.
282-283, applies equally to the Louisiana criminal libel
rule:
"It would give public servants an unjustified preference over
the public they serve if critics of official conduct did not have a
fair equivalent of the immunity granted to the officials
themselves."
We held in
New York Times that a public official might
be allowed the civil remedy only if he establishes that the
utterance was false, and that it was made with knowledge of its
falsity or in reckless disregard of whether it was false or true.
The reasons which led us so to hold in
New York Times, 376
U.S. at
376 U. S.
279-280, apply with no less force merely because the
remedy is criminal. The constitutional guarantees of freedom of
expression compel application of the same standard to the criminal
remedy. Truth may not be the subject of either civil or criminal
sanctions where discussion of public affairs is concerned. And
since
". . . erroneous statement is inevitable in free debate, and . .
. it must be protected if the freedoms of expression are to have
the 'breathing space' that they 'need . . . to survive' . . .
,"
376 U.S. at
376 U. S.
271-272, only those false statements made with the high
degree of awareness of their probable falsity demanded by
New
York Times may be the subject of either civil or criminal
sanctions. For speech concerning public affairs is
Page 379 U. S. 75
more than self-expression; it is the essence of self-government.
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, 376 U.S. at
376 U. S.
270.
The use of calculated falsehood, however, would put a different
cast on the constitutional question. Although honest utterance,
even if inaccurate, may further the fruitful exercise of the right
of free speech, it does not follow that the lie, knowingly and
deliberately published about a public official, should enjoy a like
immunity. At the time the First Amendment was adopted, as today,
there were those unscrupulous enough and skillful enough to use the
deliberate or reckless falsehood as an effective political tool to
unseat the public servant or even topple an administration.
Cf. Riesman, Democracy and Defamation: Fair Game and Fair
Comment I, 42 Col.L.Rev. 1085, 1088-1111 (1942). That speech is
used as a tool for political ends does not automatically bring it
under the protective mantle of the Constitution. For the use of the
known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which
economic, social, or political change is to be effected. Calculated
falsehood falls into that class of utterances which
"are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social
interest in order and morality. . . ."
Chaplinsky v. New Hampshire, 315 U.
S. 568, 572. Hence, the knowingly false statement and
the false statement made with reckless disregard of the truth do
not enjoy constitutional protection.
Page 379 U. S. 76
II
We find no difficulty in bringing the appellant's statement
within the purview of criticism of the official conduct of public
officials, entitled to the benefit of the
New York Times
rule. As the Louisiana Supreme Court viewed the statement, it
constituted an attack upon the personal integrity of the judges,
rather than on official conduct. In sustaining the finding of the
trial court that the appellant's statement was defamatory, the
Louisiana Supreme Court held that
". . . the use of the words 'racketeer influences,' when applied
to anyone, suggests and imputes that he has been influenced to
practice fraud, deceit, trickery, cheating, and dishonesty;"
that
"The expression that the judges have enjoyed 300 days vacation
out of 19 months suggests and connotes a violation of the
'Deadhead' statute, LSA-R.S. 14:138, Public Payroll Fraud;"
that "Other expressions set out in the Bill of Information
connote malfeasance in office. LSA-R.S. 14:134; Art. IX, Sec. 1,
La.Const. of 1921." The court concluded that
"Defendant's expressions . . . are not criticisms of a court
trial or of the manner in which any one of the eight judges
conducted his court when in session. The expressions charged
contain personal attacks upon the integrity and honesty of the
eight judges. . . ."
244 La. at 834-835, 154 So. 2d at 417-418.
We do not think, however, that appellant's statement may be
considered as one constituting only a purely private defamation.
The accusation concerned the judges' conduct of the business of the
Criminal District Court. [
Footnote 10]
Page 379 U. S. 77
Of course, any criticism of the manner in which a public
official performs his duties will tend to affect his private, as
well as his public, reputation. The
New York Times rule is
not rendered inapplicable merely because an official's private
reputation, as well as his public reputation, is harmed. The 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. Few 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. [
Footnote 11] As the Kansas Supreme Court said in
Coleman v. MacLennan, speaking of candidates:
"Manifestly, a candidate must surrender to public scrutiny and
discussion so much of his private character as affects his fitness
for office, and the liberal rule requires no more. But, in
measuring the extent of a candidate's profert of character, it
should always be remembered that the people have good authority for
believing that grapes do not grow on thorns, nor figs on
thistles."
78 Kan. 711, 739, 98 P. 281, 291 (1908).
III
Applying the principles of the
New York Times case, we
hold that the Louisiana statute, as authoritatively interpreted by
the Supreme Court of Louisiana, incorporates constitutionally
invalid standards in the context of criticism of the official
conduct of public officials.
Page 379 U. S. 78
For, contrary to the
New York Times rule, which
absolutely prohibits punishment of truthful criticism, the statute
directs punishment for true statements made with "actual malice,"
see LSA-R.S. § 14:48;
State v. Cox, 246 La. 748,
756,
167 So. 2d
352, 355 (1964), handed down after the
New York Times
decision; Bennett, The Louisiana Criminal Code, 5 La.L.Rev. 6, 34
(1942). And "actual malice" is defined in the decisions below to
mean "hatred, ill will or enmity or a wanton desire to injure. . .
." 244 La. at 851, 154 So. 2d at 423. The statute is also
unconstitutional as interpreted to cover false statements against
public officials. The
New York Times standard forbids the
punishment of false statements, unless made with knowledge of their
falsity or in reckless disregard of whether they are true or false.
But the Louisiana statute punishes false statements without regard
to that test if made with ill-will; even if ill-will is not
established, a false statement concerning public officials can be
punished if not made in the reasonable belief of its truth. The
Louisiana Supreme Court affirmed the conviction solely on the
ground that the evidence sufficed to support the trial court's
finding of ill-will, enmity, or a wanton desire to injure. But the
trial court also rested the conviction on additional findings that
the statement was false, and not made in the reasonable belief of
its truth. The judge said:
"It is inconceivable to me that the Defendant could have had a
reasonable belief, which could be defined as an honest belief, that
not one, but all eight, of these Judges of the Criminal District
Court were guilty of what he charged them with in the defamatory
statement. These men have been honored . . . with very high
offices. . . . It is inconceivable to me that all of them could
have been guilty of all of the accusations made against them.
Therefore, I do
Page 379 U. S. 79
not believe that the qualified privilege under LSA-R.S., Title
14, Section 49, is applicable. . . ."
This is not a holding applying the
New York Times test.
The "reasonable belief" standard applied by the trial judge is not
the same as the "reckless disregard of truth" standard. According
to the trial court's opinion, a reasonable belief is one which "an
ordinarily prudent man might be able to assign a just and fair
reason for"; the suggestion is that, under this test, the immunity
from criminal responsibility in the absence of ill-will disappears
on proof that the exercise of ordinary care would have revealed
that the statement was false. The test which we laid down in
New York Times is not keyed to ordinary care; defeasance
of the privilege is conditioned, not on mere negligence, but on
reckless disregard for the truth.
Reversed.
[
Footnote 1]
La.Rev.Stat.1950, Tit. 14:
"§ 47. Defamation"
"Defamation is the malicious publication or expression in any
manner, to anyone other than the party defamed, of anything which
tends:"
"(1) To expose any person to hatred, contempt, or ridicule, or
to deprive him of the benefit of public confidence or social
intercourse; or"
"(2) To expose the memory of one deceased to hatred, contempt,
or ridicule; or"
"(3) To injure any person, corporation, or association of
persons in his or their business or occupation."
"Whoever commits the crime of defamation shall be fined not more
than three thousand dollars, or imprisoned for not more than one
year, or both."
"§ 48. Presumption of malice"
"Where a nonprivileged defamatory publication or expression is
false it is presumed to be malicious unless a justifiable motive
for making it is shown."
"Where such a publication or expression is true, actual malice
must be proved in order to convict the offender."
"§ 49. Qualified privilege"
"A qualified privilege exists and actual malice must be proved,
regardless of whether the publication is true or false, in the
following situations:"
"(1) Where the publication or expression is a fair and true
report of any judicial, legislative, or other public or official
proceeding, or of any statement, speech, argument, or debate in the
course of the same."
"(2) Where the publication or expression is a comment made in
the reasonable belief of its truth, upon,"
"(a) The conduct of a person in respect to public affairs;
or"
"(b) A thing which the proprietor thereof offers or explains to
the public."
"(3) Where the publication or expression is made to a person
interested in the communication, by one who is also interested or
who stands in such a relation to the former as to afford a
reasonable ground for supposing his motive innocent."
"(4) Where the publication or expression is made by an attorney
or party in a judicial proceeding."
La.Rev.Stat.1962 Cum.Supp., Tit. 14:
"50. Absolute privilege. . . ."
[
Footnote 2]
The dispute between appellant and the judges arose over
disbursements from a Fines and Fees Fund, which was to be used to
defray expenses of the District Attorney's office; disbursements
could be made only on motion of the District Attorney and approval
by a judge of the Criminal District Court. After appellant took
office, one of the incumbent judges refused to approve a
disbursement from the Fund for furnishings for appellant's office.
When the judge went on vacation prior to his retirement in
September, 1962, appellant obtained the approval of another judge,
allegedly by misrepresenting that the first judge had withdrawn his
objection. Thereupon, the eight judges, on October 5, 1962, adopted
a rule that no further disbursements of the District Attorney from
the Fund would be approved except with the concurrence of five of
the eight judges. On October 26, 1962, the judges ruled that
disbursements to pay appellant's undercover agents to conduct
investigations of commercial vice in the Bourbon and Canal Street
districts of New Orleans would not be approved, and expressed doubt
as to the legality of such a use of the Fund under the State
Constitution. A few days later, on November 1, 1962, the judge, now
retired, who had turned down the original motion issued a public
statement criticizing appellant's conduct of the office of District
Attorney. The next day, appellant held the press conference at
which he made the statement for which he was prosecuted.
[
Footnote 3]
In affirming appellant's conviction, before
New York
Times was handed down, the Supreme Court of Louisiana relied
on statements in
Roth v. United States, 354 U.
S. 476,
354 U. S.
486-487, and
Beauharnais v. Illinois,
343 U. S. 250,
343 U. S. 266,
to the effect that libelous utterances are not within the
protection of the First and Fourteenth Amendments, and hence can be
punished without a showing of clear and present danger. 244 La. at
833-834, 154 So. 2d at 416-417. For the reasons stated in
New
York Times, 376 U.S. at
376 U. S.
268-269, nothing in
Roth or
Beauharnais forecloses inquiry into whether the use of
libel laws, civil or criminal, to impose sanctions upon criticism
of the official conduct of public officials transgresses
constitutional limitations protecting freedom of expression.
Whether the libel law be civil or criminal, it must satisfy
relevant constitutional standards.
[
Footnote 4]
Livingston's Code was not adopted, and is not reflected in the
current Louisiana statute. His suggested provisions for defamation
appear at pp. 421-425. Of particular interest are Art. 369,
exculpating true statements of fact or incorrect opinions as to the
qualifications of any person for public office, and Art. 386(2),
exculpating even mistaken observations on the tendencies or motives
of official acts of public officers, but not exculpating false
allegations of such motives as would be criminal.
[
Footnote 5]
5 Holdsworth, History of English Law, 207-208 (2d ed. 1937);
Kelly, Criminal Libel and Free Speech, 6 Kan.L.Rev. 295, 296-303
(1958).
[
Footnote 6]
See the letter of Mr. Justice Jackson, when Attorney
General of the United States, dated June 11, 1940, and addressed to
Senator Millard E. Tydings, 87 Cong.Rec. 5836-5837, in which he
stated that the policy of the Attorneys General of the United
States was not to prosecute for criticism of public officials.
[
Footnote 7]
The following jurisdictions have constitutional or statutory
provisions which make truth a defense if published with good
motives and for justifiable ends, or some variant thereof:
Alaska Stat.1962, § 11.15.320; Ariz.Rev.Stat.Ann.1956, § 13-353;
Cal.Const.1879, Art. 1, § 9; Cal.Pen.Code 1955, § 251; D.C.Code
Ann.1961, § 22-2303; Fla.Const.1885, Declaration of Rights, § 13;
Hawaii Rev.Laws 1955, § 294-6; Idaho Code 1948, § 18-4803;
Ill.Const.1870, Art. 2, § 4; Ill.Rev.Stat.1963, c. 38, § 27-2; Iowa
Const.1846, Art. I, § 7; Iowa Code 1962, § 737.4; Kan.Bill of
Rights, Const., 1859, § 11; Kan.Gen.Stat.Ann.1949, § 21-2403;
Mass.Gen.Laws Ann.1959, c. 278, § 8 (without "actual malice");
Mich.Const.1963, Art. I, § 19; Minn.Stat.1961, § 634.05;
Miss.Const.1890, Art. 3, § 13; Miss.Code 1942 (recompiled 1956), §
2269; Mont.Const.1889, Art. III, § 10; Mont.Rev.Codes Ann. 1947, §
94-2804; Nev.Const.1864, Art. I, § 9; Nev.Rev.Stat.1961, § 200.510,
subd. 3; N.J.Const.1947, Art. 1, 6; N.Y.Const.1938, Art. I, § 8;
N.Y. Penal Law, McKinney's Consol.Laws, c. 40, § 1342;
N.D.Const.1889, Art. I, § 9; N.D.Cent.Code 1960, § 12-28-04; Ohio
Const.1851, Art. I, § 11; Okla.Const.1907, Art. 2, § 22;
Okla.Stat.1951, Tit. 21, § 774; Ore.Rev.Stat.1953, § 163.420;
R.I.Const.1843, Art. I, § 20; R.I.Gen.Laws Ann.1956, § 9-6-9;
S.D.Const.1889, Art. VI, § 5; S.D.Code 1939, § 13.3406; Utah
Const.1895, Art. I, § 15; Utah Code Ann.1953, § 77-31-30;
Wash.Rev.Code 1951, § 9.58.020; Wis.Const.1848, Art. I, § 3;
Wis.Stat.1961, § 942.01(3); Wyo.Const.1890, Art. 1, § 20.
Cf. England, Lord Campbell's Act, 6 & 7 Vict., c. 96,
§ 6 (1843) (for the public benefit).
In the following jurisdictions, truth does operate as a complete
defense:
Colo.Const.1876, Art. II, § 10; Colo.Rev.Stat.Ann.1953, §
40-8-13;
Bearman v. People, 91 Colo. 486, 493, 16 P.2d
425, 427 (1932); Ind.Const.1851, Art. 1, § 10;
State v.
Bush, 122 Ind. 42, 23 N.E. 677 (1890); Mo.Const.1945, Art. I,
§ 8; Mo.Rev.Stat., 1959, § 559.440; Nev.Const.1875, Art. I, § 5;
Neb.Rev.Stat., 1943 (1956 reissue), § 28-440;
Razee v.
State, 73 Neb. 732, 103 N.W. 438 (1905); N.M.Const.1911, Art.
II, § 17; N.M.Stat.Ann.1953 (1964 replacement), § 40A-11-1 (false
and malicious statement); N.C.Gen.Stat.1953, § 15-168;
S.C.Const.1895, Art. I, § 21; S.C.Code 1962, § 16-161;
Vt.Stat.Ann.1958, Tit. 13, § 6560.
The following jurisdictions allow greater scope for the defense
of truth where criticism of the official conduct of public
officials is concerned:
Ala.Const.1901, Art. 1, § 12 (but Ala. Code 1940, Tit. 14, § 350
makes truth a defense); Del.Const.1897, Art. 1, § 5; Del.Code
Ann.1953, Tit. 11, § 3506; Ky.Const.1891, § 9; Me.Const.1820, Art.
I, § 4; Me.Rev.Stat.1954, c. 130, § 34;
State v. Burnham,
9 N.H. 34, 31 Am.Dec. 217 (1837); Pa.Const.1874, Art. 1, § 7;
Tenn.Const.1870, Art. 1, § 19; Tenn.Code Ann.1955, §§ 39-2704,
23-2603; Tex.Const.1876, Art. 1, § 8; Vernon's Tex.Code
Crim.Proc.Ann.1954, Art. 13; Vernon's Tex.Pen.Code Ann., 1953,
Arts. 1290(1), 1290(4).
The following jurisdictions have constitutional or statutory
provisions under which evidence of the truth may be introduced, but
it is unclear whether this operates as a complete defense:
Ark.Const.1874, Art. 2, § 6; Ark.Stat.1947 (1964 replacement),
Tit. 41, § 2403; Conn.Const.1818, Art. First, § 7; Ga.Const.1877, §
2-201, art. 1, § 2, par. 1; Ga.Code Ann.1953, § 26-2103; Md.Code
Ann., 1957, Art. 75, § 5; Va.Code Ann.1950 (1960 replacement), §§
18.1-255, 18.1-256.
In one jurisdiction there is no authority in point.
See
State v. Payne, 87 W.Va. 102, 104 S.E. 288, 19 A.L.R. 1465
(1920).
[
Footnote 8]
We recognize that different interests may be involved where
purely private libels, totally unrelated to public affairs, are
concerned; therefore, nothing we say today is to be taken as
intimating any views as to the impact of the constitutional
guarantees in the discrete area of purely private libels.
[
Footnote 9]
Even the law of privacy, which evolved to meet Lord Campbell's
reservations, recognizes severe limitations where public figures or
newsworthy facts are concerned.
See Sidis v. F-R Pub.
Corp., 113 F.2d 806, 809-810 (C.A.2d Cir. 1940).
[
Footnote 10]
In view of our result, we do not decide whether appellant's
statement was factual or merely comment, or whether a State may
provide any remedy, civil or criminal, if defamatory comment alone,
however vituperative, is directed at public officials. The
Louisiana courts held that the privilege for fair comment was
excluded in the present case by malice or lack of reasonable care,
and not by the addition of factual assertions. For different
formulations of comment, in the context of the common law
fair-comment rule,
see 1 Harper and James, The Law of
Torts, § 5.28, at 458 (1956); Note, Fair Comment, 62 Harv.L.Rev.
1207, 1213 (1949); Restatement, Torts, § 606, Comment
b, §
567 (1938).
[
Footnote 11]
See, e.g., Vernon's Tex.Pen.Code Ann., 1953, Art.
1290(2).
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
concurring.
For reasons stated at greater length in my opinions concurring
in
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 293,
and dissenting in
Beauharnais v. Illinois, 343 U.
S. 250,
343 U. S. 267,
as well as in the opinion of MR. JUSTICE DOUGLAS in this case,
infra, p.
379 U. S. 80, I
concur in reversing the conviction of appellant Garrison, based as
it is purely on his public discussion and criticism of public
officials. I believe that the First Amendment, made applicable to
the States by the Fourteenth, protects every person from having a
State or the Federal Government fine, imprison or assess damages
against him when he has been guilty of no conduct,
see Giboney
v. Empire Storage & Ice Co., 336 U.
S. 490,
336 U. S. 498,
other than expressing an opinion, even though others may believe
that his views are unwholesome, unpatriotic, stupid or dangerous. I
believe that the Court is mistaken if it thinks that requiring
proof that
Page 379 U. S. 80
statements were "malicious" or "defamatory" will really create
any substantial hurdle to block public officials from punishing
those who criticize the way they conduct their office. Indeed,
"malicious," "seditious," and other such evil-sounding words often
have been invoked to punish people for expressing their views on
public affairs. Fining men or sending them to jail for criticizing
public officials not only jeopardizes the free, open public
discussion which our Constitution guarantees, but can wholly stifle
it. I would hold now, and not wait to hold later,
compare Betts
v. Brady, 316 U. S. 455,
overruled in Gideon v. Wainwright, 372 U.
S. 335, that, under our Constitution, there is
absolutely no place in this country for the old, discredited
English Star Chamber law of seditious criminal libel.
MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins,
concurring.
I am in hearty agreement with the conclusion of the Court that
this prosecution for a seditious libel was unconstitutional. Yet I
feel that the gloss which the Court has put on "the freedom of
speech" in the First Amendment to reach that result (and like
results in other cases) makes that basic guarantee almost
unrecognizable. [
Footnote 2/1]
Recently, in
New York Times Co. v. Sullivan,
376 U. S. 254, a
majority of the Court held that criticism of an
Page 379 U. S. 81
official for official conduct was protected from state civil
libel laws by the First and Fourteenth Amendments, unless there was
proof of actual malice.
Id. at
376 U. S. 279.
We now hold that proof of actual malice is relevant to seditious
libel -- that seditious libel will lie for a knowingly false
statement, or one made with reckless disregard of the truth.
If malice is all that is needed, inferences from facts as found
by the jury will easily oblige. How can we sit in review on a cold
record and find no evidence of malice (
cf. New York Times Co.
v. Sullivan, 376 U.S. at
376 U. S.
285-288) when it is the commonplace of life that heat
and passion subtly turn to malice in actual fact? If "reckless
disregard of the truth" is the basis of seditious libel, that
nebulous standard could be easily met. The presence of "actual
malice" is made critical in seditious libel, as well as in civil
actions involving charges against public officials, when in truth
there is nothing in the Constitution about it, any more than there
is about "clear and present danger."
While the First Amendment remains the same, the gloss which the
Court has written on it in this field of the discussion of public
issues robs it of much vitality.
Why does "the freedom of speech" that the Court is willing to
protect turn out to be so pale and tame?
It is because, as my Brother BLACK has said, [
Footnote 2/2] the Bill of Rights is constantly
watered down through judicial
Page 379 U. S. 82
"balancing" of what the Constitution says and what judges think
is needed for a well ordered society.
As Irving Brant recently said:
"The balancing test developed in recent years by our Supreme
Court does not
disarm the Government of power to
trench upon the field in which the Constitution says
'Congress shall make no law.' The balancing test does exactly what
is done by its spiritual parent, the British 'common law of
seditious libel,' under which (to repeat the words of May), 'Every
one was a libeler who outraged the sentiments of the dominant
party.'"
Seditious Libel: Myth and Reality, 39 N.Y.U.L.Rev. 1, 18-19
(1964).
Beauharnais v. Illinois, 343 U.
S. 250, a case decided by the narrowest of margins,
should be overruled as a misfit in our constitutional system and as
out of line with the dictates of the First Amendment. I think it is
time to face the fact that the only line drawn by the Constitution
is between "speech," on the one side, and conduct or overt acts, on
the other. The two often do blend. I have expressed the idea
before:
"Freedom of expression can be suppressed if, and to the extent
that, it is so closely brigaded with illegal action as to be an
inseparable part of it."
Roth v. United States, 354 U.S. at
354 U. S. 514
(dissenting opinion). Unless speech is so brigaded with overt acts
of that kind, there is nothing that may be punished, and no
semblance of such a case is made out here.
I think little need be added to what Mr. Justice Holmes said
nearly a half century ago:
"I wholly disagree with the argument of the Government that the
First Amendment left the common
Page 379 U. S. 83
law as to seditious libel in force. History seems to me against
the notion. I had conceived that the United States through many
years had shown its repentance for the Sedition Act of 1798 . . . ,
[
Footnote 2/3] by repaying fines
that it imposed."
Abrams v. United States, 250 U.
S. 616,
250 U. S. 630
(dissenting opinion).
The philosophy of the Sedition Act of 1798, which punished
"false, scandalous and malicious" writings (1 Stat. 596), is today
allowed to be applied by the States. Yet Irving Brant has shown
that seditious libel was "entirely the creation of the Star
Chamber." [
Footnote 2/4] It is
disquieting to know that one of its instruments of destruction is
abroad in the land today.
[
Footnote 2/1]
The Constitution says in the First Amendment that "Congress
shall make no law . . . abridging the freedom of speech", and the
Due Process Clause of the Fourteenth Amendment puts the States
under the same restraint. There is one school of thought, so far in
the minority, which holds that the due process freedom of speech
honored by the Fourteenth Amendment is a watered-down version of
the First Amendment freedom of speech.
See my Brother
HARLAN in
Roth v. United States, 354 U.
S. 476,
354 U. S.
500-503. While that view has never obtained, the
construction which the majority has given the First Amendment has
been burdened with somewhat the same kind of qualifications and
conditions.
[
Footnote 2/2]
The Bill of Rights and the Federal Government, in The Great
Rights, p. 60 (Cahn ed. 1963):
"In reality, this [balancing] approach returns us to the state
of legislative supremacy which existed in England and which the
Framers were so determined to change once and for all. On the one
hand, it denies the judiciary its constitutional power to measure
acts of Congress by the standards set down in the Bill of Rights.
On the other hand, though apparently reducing judicial powers by
saying that acts of Congress may be held unconstitutional only when
they are found to have no rational legislative basis, this approach
really gives the Court, along with Congress, a greater power, that
of overriding the plain commands of the Bill of Rights on a finding
of weighty public interest. In effect, it changes the direction of
our form of government from a government of limited powers to a
government in which Congress may do anything that courts believe to
be 'reasonable.'"
[
Footnote 2/3]
Madison's views on the Sedition Act -- a federal enactment --
are relevant here, now that the First Amendment is applicable to
the States. I have therefore appended his views as an
379 U.S.
64app|>Appendix.
[
Footnote 2/4]
39 N.Y.U.L.Rev. 1, 11.
"What is called today the common law doctrine of seditious libel
is, in fact, the creation of the Court of Star Chamber, the most
iniquitous tribunal in English history. It has been injected into
the common law solely by the fiat of Coke, and by subsequent
decisions and opinions of English judges who perpetuated the
vicious procedures by which the Star Chamber stifled criticism of
the government and freedom of political opinion. If seditious libel
has any genuine common law affiliation, it is by illegitimate
descent from constructive treason and heresy, both of which are
totally repugnant to the Constitution of the Untied States."
Brant,
supra, at 5.
|
379 U.S.
64app|
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS,
CONCURRING.
Excerpt from Madison's Address, January 23, 1799:
"The sedition act presents a scene which was never expected by
the early friends of the Constitution. It was then admitted that
the State sovereignties were only diminished by powers specifically
enumerated, or necessary to carry the specified powers into effect.
Now, Federal authority is deduced from implication; and, from
the
Page 379 U. S. 84
existence of State law, it is inferred that Congress possess a
similar power of legislation whence Congress will be endowed with a
power of legislation in all cases whatsoever, and the States will
be stripped of every right reserved, by the concurrent claims of a
paramount Legislature."
"The sedition act is the offspring of these tremendous
pretensions, which inflict a death-wound on the sovereignty of the
States."
"For the honor of American understanding, we will not believe
that the people have been allured into the adoption of the
Constitution by an affectation of defining powers, whilst the
preamble would admit a construction which would erect the
will of Congress into a power paramount in all cases, and therefore
limited in none. On the contrary, it is evident that the objects
for which the Constitution was formed were deemed attainable only
by a particular enumeration and specification of each power granted
to the Federal Government, reserving all others to the people, or
to the States. And yet it is in vain we search for any specified
power embracing the right of legislation against the freedom of the
press."
"Had the States been despoiled of their sovereignty by the
generality of the preamble, and had the Federal Government been
endowed with whatever they should judge to be instrumental towards
union, justice, tranquillity, common defence, general welfare, and
the preservation of liberty, nothing could have been more frivolous
than an enumeration of powers."
"It is vicious in the extreme to calumniate meritorious public
servants; but it is both artful and vicious to arouse the public
indignation against calumny in order to conceal usurpation. Calumny
is forbidden by the laws, usurpation by the Constitution. Calumny
injures individuals, usurpation, States. Calumny may be
redressed
Page 379 U. S. 85
by the common judicatures; usurpation can only be controlled by
the act of society. Ought usurpation, which is most mischievous, to
be rendered less hateful by calumny, which, though injurious, is in
a degree less pernicious? But the laws for the correction of
calumny were not defective. Every libelous writing or expression
might receive its punishment in the State courts, from juries
summoned by an officer, who does not receive his appointment from
the President, and is under no influence to court the pleasure of
Government, whether it injured public officers or private citizens.
Nor is there any distinction in the Constitution empowering
Congress exclusively to punish calumny directed against an officer
of the General Government; so that a construction assuming the
power of protecting the reputation of a citizen officer will extend
to the case of any other citizen, and open to Congress a right of
legislation in every conceivable case which can arise between
individuals."
"In answer to this, it is urged that every Government possesses
an inherent power of self-preservation, entitling it to do whatever
it shall judge necessary for that purpose."
"This is a repetition of the doctrine of implication and
expediency in different language, and admits of a similar and
decisive answer, namely, that as the powers of Congress are
defined, powers inherent, implied, or expedient are obviously the
creatures of ambition; because the care expended in defining powers
would otherwise have been superfluous. Powers extracted from such
sources will be indefinitely multiplied by the aid of armies and
patronage which, with the impossibility of controlling them by any
demarcation, would presently terminate reasoning, and ultimately
swallow up the State sovereignties."
"So insatiable is a love of power that it has resorted to a
distinction between the freedom and licentiousness of
Page 379 U. S. 86
the press for the purpose of converting the third amendment
*
of the Constitution, which was dictated by the most lively anxiety
to preserve that freedom, into an instrument for abridging it.
Thus, usurpation even justifies itself by a precaution against
usurpation; and thus an amendment universally designed to quiet
every fear is adduced as the source of an act which has produced
general terror and alarm."
"The distinction between liberty and licentiousness is still a
repetition of the Protean doctrine of implication, which is ever
ready to work its ends by varying its shape. By its help, the judge
as to what is licentious may escape through any constitutional
restriction. Under it, men of a particular religious opinion might
be excluded from office, because such exclusion would not amount to
an establishment of religion, and because it might be said that
their opinions are licentious. And under it, Congress might
denominate a religion to be heretical and licentious, and proceed
to its suppression. Remember that precedents, once established, are
so much positive power; and that the nation which reposes on the
pillow of political confidence will sooner or later end its
political existence in a deadly lethargy. Remember also that it is
to the press mankind are indebted for having dispelled the clouds
which long encompassed religion, for disclosing her genuine lustre,
and disseminating her salutary doctrines."
"The sophistry of a distinction between the liberty and the
licentiousness of the press is so forcibly exposed in a late
memorial from our late envoys to the Minister of the French
Republic, that we here present it to you in their own words:"
" The genious of the Constitution, and the opinion of the people
of the United States, cannot be overruled by
Page 379 U. S. 87
those who administer the Government. Among those principles
deemed sacred in America, among those sacred rights considered as
forming the bulwark of their liberty, which the Government
contemplates with awful reverence and would approach only with the
most cautious circumspection, there is no one of which the
importance is more deeply impressed on the public mind than the
liberty of the press. That this
liberty is often carried
to excess, that it has sometimes degenerated into
licentiousness, is seen and lamented; but the remedy has
not yet been discovered.
Perhaps it is an evil inseparable from
the good with which it is allied; perhaps it is a shoot which
cannot be stripped from the stalk without wounding vitally the
plant from which it is torn. However desirable those measures might
be which might correct without enslaving the press, they have never
yet been devised in America. No regulations exist which enable
the Government to suppress whatever calumnies or invectives any
individual may choose to offer to the public eye, or to punish such
calumnies and invectives otherwise than by a legal prosecution in
courts which are alike open to all who consider themselves as
injured."
"As if we were bound to look for security from the personal
probity of Congress amidst the frailties of man, and not from the
barriers of the Constitution, it has been urged that the accused
under the sedition act is allowed to prove the truth of the charge.
This argument will not for a moment disguise the
unconstitutionality of the act if it be recollected that opinions,
as well as facts, are made punishable, and that the truth of an
opinion is not susceptible of proof. By subjecting the truth of
opinion to the regulation, fine, and imprisonment to be inflicted
by those who are of a different opinion, the free range of the
human mind is injuriously restrained. The sacred obligations of
religion flow from the due exercise of opinion, in the solemn
discharge of which man is accountable to
Page 379 U. S. 88
his God alone; yet, under this precedent, the truth of religion
itself may be ascertained, and its pretended licentiousness
punished by a jury of a different creed from that held by the
person accused. This law, then, commits the double sacrilege of
arresting reason in her progress towards perfection, and of placing
in a state of danger the free exercise of religious opinions. But
where does the Constitution allow Congress to create crimes and
inflict punishment, provided they allow the accused to exhibit
evidence in his defense? This doctrine, united with the assertion,
that sedition is a common law offence, and therefore within the
correcting power of Congress, opens at once the hideous volumes of
penal law and turns loose upon us the utmost invention of
insatiable malice and ambition which, in all ages, have debauched
morals, depressed liberty, shackled religion, supported despotism,
and deluged the scaffold with blood."
VI Writings of James Madison, 1790-1802, pp. 333-337 (Hunt ed.
1906).
* The First Amendment was Article Third in those submitted by
Congress to the States on September 25, 1789.
MR. JUSTICE GOLDBERG, concurring.
I agree with the Court that there is "no difficulty in bringing
the appellant's statement within the purview of criticism of the
official conduct of public officials. . . ."
Ante at
379 U. S. 76. In
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 297,
I expressed my conviction "that the Constitution accords citizens
and press an unconditional freedom to criticize official conduct."
Id. at
376 U. S. 305.
New York Times was a civil libel case; this is a criminal
libel prosecution. In my view,
"[i]f the rule that libel on government has no place in our
Constitution is to have real meaning, then libel [criminal or
civil] on the official conduct of the governors likewise can have
no place in our Constitution."
Id. at
376 U. S.
299.