Respondent, the former supervisor of a county recreation area
who was employed by and responsible to the three county
Commissioners, brought this civil libel action in a New Hampshire
state court against petitioner whose newspaper column allegedly
criticized the fiscal management of the area under respondent's
regime and asked the questions, "What happened to all the money
last year? and every other year?" Respondent offered extrinsic
proofs that the column imputed mismanagement and speculation during
respondent's tenure on the theories (1) that the jury could award
respondent damages if it found that the column cast suspicion
indiscriminately on the former small management group, whether or
not it attributed the misconduct specifically to respondent, and
(2) that the column was read as specifically referring to
respondent as the person responsible for the area's financial
affairs. The jury was instructed that "an implication of crime to
one or some of a small group that casts suspicion on all is
actionable," and that defamatory comment was justified if made
without malice and represented fair comment on matters of public
interest, "malice" being defined to include "ill will, evil motive,
intention to injure . . . ," and the jury was permitted to find
that negligent misstatement of fact would defeat petitioner's
privilege of free expression. The jury awarded respondent damages,
and the State Supreme Court affirmed, finding no bar in
New
York Times Co v. Sullivan, 376 U. S. 254,
which had been decided after the trial.
Held:
1. An otherwise impersonal attack on governmental operations
cannot be used to establish defamation of those administering such
operations absent evidence that the implication of wrongdoing was
read as specifically directed at the plaintiff, whether he is
considered a public official or a member of a group responsible for
governmental operations, and whether or not others were also
implicated. The trial judge's instruction was erroneous to the
extent that it authorized the jury to award respondent damages
without regard to evidence that the asserted implication of the
Page 383 U. S. 76
column was made with specific reference to him.
New York
Times, supra, followed. Pp.
383 U. S.
79-83.
2. A government employee, having or appearing to the public to
have substantial responsibility for or control over the conduct of
governmental affairs, is a "public official," and, as such, under
New York Times, supra, and
Garrison v. Louisiana,
379 U. S. 64,
cannot recover damages for defamatory comment about his official
conduct unless he proves actual malice,
i.e., that such
comment is made with knowledge of its falsity or with reckless
disregard of whether it is true or false. Pp.
383 U. S.
84-86.
(a) Whether a person is a "public official" as that term is used
in
New York Times is not determined under state law
standards. P.
383 U. S.
84.
(b) The term "public official" should be interpreted in the
light of the compelling interest in debate on public issues and
about those persons who are in a position to resolve those issues,
though it is not necessary here, any more than it was in
New
York Times, to delineate the precise scope of the term. P.
383 U. S.
85.
(c) The protections which the law of defamation affords must be
limited by the constitutional protections for public discussion. P.
383 U. S.
86.
3. Since
New York Times had not been decided at the
time of the trial of this case, respondent should be allowed to
adduce proof that his claim falls outside the rule of that
decision, or that petitioner's comment was made with malice as
defined therein, and, on retrial, it will be for the trial judge in
the first instance to determine if the proofs show that respondent
was a "public official." Pp.
383 U. S.
87-88.
106 N.H. 26, 203 A.2d 773, reversed and remanded.
Page 383 U. S. 77
MR. JUSTICE BRENNAN delivered the opinion of the Court.
A jury in New Hampshire Superior Court a awarded respondent
damages in this civil libel action based on one of petitioner's
columns in the Laconia Evening Citizen. Respondent alleged that the
column contained defamatory falsehoods concerning his performance
as Supervisor of the Belknap County Recreation Area, a facility
owned and operated by Belknap County. In the interval between the
trial and the decision of petitioner's appeal by the New Hampshire
Supreme Court, we decided
New York Times Co. v. Sullivan,
376 U. S. 254. We
there held that, consistent with the First and Fourteenth
Amendments, a State cannot award damages to a public official for
defamatory falsehood relating to his official conduct unless the
official proves actual malice -- that the falsehood was published
with knowledge of its falsity or with reckless disregard of whether
it was true or false. The New Hampshire Supreme Court affirmed the
award, finding
New York Times no bar. 106 N.H. 26, 203
A.2d 773. We granted certiorari and requested the parties to brief
and argue, in addition to the questions presented in the petition
for certiorari, the question whether respondent was a "public
official" under
New York Times and under our decision in
Garrison v. Louisiana, 379 U. S. 64. 380
U.S. 941.
The Recreation Area was used principally as a ski resort, but
also for other recreational activities. Respondent was employed by
and directly responsible to the Belknap County Commissioners, three
elected officials in charge of the county government. During the
1950's, a public controversy developed over the way respondent and
the Commissioners operated the Area; some protested that respondent
and the Commissioners had not developed the
Page 383 U. S. 78
Area's full potential, either as a resort for local residents or
as a tourist attraction that might contribute to the county's
taxes. The discussion culminated in 1959, when the New Hampshire
Legislature enacted a law transferring control of the Area to a
special five-man commission. [
Footnote 1] At least in part to give this new regime a
fresh start, respondent was discharged.
Petitioner regularly contributed an unpaid column to the Laconia
Evening Citizen. In it, he frequently commented on political
matters. As an outspoken proponent of the change in operations at
the Recreation Area, petitioner's views were often sharply stated,
and he had indicated disagreement with the actions taken by
respondent and the County Commissioners. In January, 1960, during
the first ski season under the new management, some six months
after respondent's discharge, petitioner published the column that
respondent alleges libeled him. In relevant part, it reads:
"Been doing a little listening and checking at Belknap
Recreation Area, and am thunderstruck by what am learning."
"This year, a year without snow till very late, a year with
actually few very major changes in procedure; the difference in
cash income simply fantastic, almost unbelievable."
"On any sort of comparative basis, the Area this year is doing
literally hundreds of percent BETTER than last year."
"When consider that last year was excellent snow year, that
season started because of more snow, months earlier last year, one
can only ponder following question: "
"What happened to all the money last year? and every other year?
What magic has Dana Beane
Page 383 U. S. 79
[Chairman of the new commission] and rest of commission, and Mr.
Warner [respondent's replacement as Supervisor] wrought to make
such tremendous difference in net cash results?"
I
The column, on its face, contains no clearly actionable
statement. Although the questions "What happened to all the money
last year? and every other year?" could be read to imply
speculation, they could also be read, in context, merely to praise
the present administration. The only persons mentioned by name are
officials of the new regime; no reference is made to respondent,
the three elected commissioners, or anyone else who had a part in
the administration of the Area during respondent's tenure. Persons
familiar with the controversy over the Area might well read it as
complimenting the luck or skill of the new management in attracting
increased patronage and producing a "tremendous difference in net
cash results" despite less favorable snow; indeed, witnesses for
petitioner testified that they so read the column.
Respondent offered extrinsic proofs to supply a defamatory
meaning. These proofs were that the column greatly exaggerated any
improvement under the new regime, and that a large part of the
community understood it to say that the asserted improvements were
not explicable by anything the new management had done. Rather, his
witnesses testified, they read the column as imputing mismanagement
and speculation during respondent's tenure. Respondent urged two
theories to support a recovery based on that imputation.
II
The first was that the jury could award him damages if it found
that the column cast suspicion indiscriminately
Page 383 U. S. 80
on the small number of persons who composed the former
management group, whether or not it found that the imputation of
misconduct was specifically made of and concerning him. [
Footnote 2] This theory of recovery was
open to respondent under New Hampshire law; the trial judge
explicitly instructed the jury that "an imputation of impropriety
or a crime to one or some of a small group that casts suspicion
upon all is actionable." [
Footnote
3] The question is presented, however, whether that theory of
recovery is precluded by our holding in
New York Times
that, in the absence of sufficient evidence that the attack focused
on the plaintiff, an otherwise impersonal attack on governmental
operations cannot be utilized to establish a libel of those
administering the operations. 376 U.S. at
376 U. S.
291-292.
The plaintiff in
New York Times was one of the three
elected Commissioners of the City of Montgomery, Alabama. His
duties included the supervision of the police department. The
statements in the advertisement upon which he principally relied as
referring to him were that "truckloads of police . . . ringed the
Alabama State College Campus" after a demonstration on the State
Capitol steps, and that Dr. Martin Luther King had been "arrested .
. . seven times." These statements were false in that, although the
police had been "deployed near the campus," they had not actually
"ringed" it, and had not gone there in connection with a State
Capitol demonstration, and in that Dr. King had been arrested
only
Page 383 U. S. 81
four times. We held that evidence that Sullivan, as Police
Commissioner, was the supervisory head of the Police Department was
constitutionally insufficient to show that the statements about
police activity were "of and concerning" him; we rejected as
inconsistent with the First and Fourteenth Amendments the
proposition followed by the Alabama Supreme Court in the case
that,
"[i]n measuring the performance or deficiencies of . . . groups,
praise or criticism is usually attached to the official in complete
control of the body,"
273 Ala. 656, 67675,
144
So. 2d 25, 39. To allow the jury to connect the statements with
Sullivan on that presumption alone was, in our view, to invite the
spectre of prosecutions for libel on government, which the
Constitution does not tolerate in any form. 376 U.S. at
376 U. S.
273-276,
376 U. S.
290-292. [
Footnote
4] We held
"that such a proposition may not constitutionally be utilized to
establish that an otherwise impersonal attack on governmental
operations was a libel of an official responsible for those
operations."
376 U.S. at
376 U. S. 292.
There must be evidence showing that the attack was read as
specifically directed at the plaintiff.
Were the statement at issue in this case an explicit charge that
the Commissioners and Baer or the entire Area management were
corrupt, we assume, without deciding, that any member of the
identified group might recover. [
Footnote 5] The statement itself might be sufficient
evidence that the attack was specifically directed at each
individual. Even if a charge and reference were merely implicit, as
is alleged here, but a plaintiff could show by extrinsic proofs
that the statement referred to him, it would be no defense to a
suit by one member of an
Page 383 U. S. 82
identifiable group engaged in governmental activity that another
was also attacked. These situations are distinguishable from the
present case; here, the jury was permitted to infer both defamatory
content and reference from the challenged statement itself,
although the statement, on its face, is only an impersonal
discussion of government activity. To the extent the trial judge
authorized the jury to award respondent a recovery without regard
to evidence that the asserted implication of the column was made
specifically of and concerning him, we hold that the instruction
was erroneous. [
Footnote 6]
Here, no explicit charge of speculation was made; no assault on the
previous management appears. The jury was permitted to award
damages upon a finding merely that respondent was one of a small
group acting for an organ of government, only some of whom were
implicated, but all of whom were tinged with suspicion. In effect,
this permitted the jury to find liability merely on the basis of
his relationship to the government agency the operations of which
were the subject of discussion. It is plain that the elected
Commissioners, also members of that group,
Page 383 U. S. 83
would have been barred from suit on this theory under
New
York Times. They would be required to show specific reference.
Whether or not respondent was a public official, as a member of the
group, he bears the same burden. [
Footnote 7] A theory that the column cast indiscriminate
suspicion on the members of the group responsible for the conduct
of this governmental operation is tantamount to a demand for
recovery based on libel of government, and therefore is
constitutionally insufficient. Since the trial judge's instructions
were erroneous in this respect, the judgment must be reversed.
III
Respondent's second theory, supported by testimony of several
witnesses, was that the column was read as referring specifically
to him, as the "man in charge" at the Area, personally responsible
for its financial affairs. Even accepting respondent's reading, the
column manifestly discusses the conduct of operations of
government. [
Footnote 8] The
subject matter may have been only of local interest, but at least
here, where publication was addressed primarily to the interested
community, that fact is constitutionally irrelevant. The question
is squarely presented whether the "public official" designation
under
New York Times applies.
If it does, it is clear that the jury instructions were
improper. Under the instructions, the jury was permitted
Page 383 U. S. 84
to find that negligent misstatement of fact would defeat
petitioner's privilege. That test was rejected in
Garrison, 379 U.S. at
379 U. S. 79,
where we said,
"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."
The trial court also charged that
"[d]efamatory matter which constitutes comment, rather than
fact, is justified if made without malice and represented fair
comment on matters of public interest,"
and defined malice to include "ill will, evil motive, intention
to injure. . . ." This definition of malice is constitutionally
insufficient where discussion of public affairs is concerned;
"[w]e 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."
Garrison, 379 U.S. at
379 U. S.
74.
Turning, then, to the question whether respondent was a "public
official" within
New York Times, we reject at the outset
his suggestion that it should be answered by reference to state law
standards. States have developed definitions of "public official"
for local administrative purposes, not the purposes of a national
constitutional protection. [
Footnote 9] If existing state law standards reflect the
purposes of
New York Times, this is, at best, accidental.
Our decision in
New York Times, moreover, draws its force
from the constitutional protections afforded free expression. The
standards that set the scope of its principles cannot therefore be
such that "the constitutional limits of free expression in the
Nation would vary with state lines."
Pennekamp v. Florida,
328 U. S. 331,
328 U. S. 33.
[
Footnote 10]
Page 383 U. S. 85
We remarked in
New York Times that we had no
occasion
"to determine how far down into the lower ranks of government
employees the 'public official' designation would extend for
purposes of this rule, or otherwise to specify categories of
persons who would or would not be included."
376 U.S. at
376 U. S. 283,
n. 23. No precise lines need be drawn for the purposes of this
case. The motivating force for the decision in
New York
Times was two-fold. We expressed
"a profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open,
and that [such debate] may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on government and public
officials."
376 U.S. at
376 U. S. 270.
(Emphasis supplied.) There is, first, a strong interest in debate
on public issues, and, second, a strong interest in debate about
those persons who are in a position significantly to influence the
resolution of those issues. Criticism of government is at the very
center of the constitutionally protected area of free discussion.
Criticism of those responsible for government operations must be
free, lest criticism of government itself be penalized. It is
clear, therefore, that the "public official" designation applies,
at the very least, to those among the hierarchy of government
employees who have, or appear to the public to have, substantial
responsibility for or control over the conduct of governmental
affairs. [
Footnote 11]
Page 383 U. S. 86
This conclusion does not ignore the important social values
which underlie the law of defamation. Society has a pervasive and
strong interest in preventing and redressing attacks upon
reputation. But, in cases like the present, there is tension
between this interest and the values nurtured by the First and
Fourteenth Amendments. The thrust of
New York Times is
that, when interests in public discussion are particularly strong,
as they were in that case, the Constitution limits the protections
afforded by the law of defamation. Where a position in government
has such apparent importance that the public has an independent
interest in the qualifications and performance of the person who
holds it, beyond the general public interest in the qualifications
and performance of all government employees, both elements we
identified in
New York Times are present, [
Footnote 12] and the
New York
Times malice standards apply. [
Footnote 13]
Page 383 U. S. 87
As respondent framed his case, he may have held such a position.
Since
New York Times had not been decided when his case
went to trial, his presentation was not shaped to the "public
official" issue. He did, however, seek to show that the article
referred particularly to him. His theory was that his role in the
management of the Area was so prominent and important that the
public regarded him as the man responsible for its operations,
chargeable with its failures and to be credited with its successes.
Thus, to prove the article referred to him, he showed the
importance of his role; the same showing, at the least, raises a
substantial argument that he was a "public official." [
Footnote 14]
The record here, however, leaves open the possibility that
respondent could have adduced proofs to bring his claim outside the
New York Times rule. Moreover, even if the claim falls
within
New York Times, the record suggests respondent may
be able to present a jury question of malice as there defined.
Because the trial here was had before
New York Times, we
have concluded that we should not foreclose him from attempting
retrial of his
Page 383 U. S. 88
action. We remark only that, as is the case with questions of
privilege generally, it is for the trial judge in the first
instance to determine whether the proofs show respondent to be a
"public official." [
Footnote
15]
The judgment is reversed, and the case remanded to the New
Hampshire Supreme Court for further proceedings not inconsistent
with this opinion.
It is so ordered.
MR. JUSTICE CLARK concurs in the result.
[
Footnote 1]
N.H.Laws 1959, c. 399.
[
Footnote 2]
The article purports to compare performance of the ski Area
under the direction of unnamed persons during the prior year with
performance of the Area under the direction of an identified group
-- a group which includes not only the new manager of the Area, but
the new commissioners as well.
[
Footnote 3]
See generally Lewis, The Individual Member's Right to
Recover for a Defamation Leveled at the Group, 17 U.Miami L.Rev.
519, 523-525 (1963).
[
Footnote 4]
See Kalven, The
New York Times Case: A Note on
"The Central Meaning of the First Amendment," 1964 Sup.Ct.Rev.191,
207-210.
[
Footnote 5]
Such recovery would, of course, be subject to a showing of
actual malice if the individual were a "public official" within the
meaning of
New York Times.
[
Footnote 6]
It might be argued that the charge instructed the jury to award
recovery only if it found that the libel was aimed at Mr. Baer or
if it found the libel aimed at Mr. Baer along with a few others.
Such a charge might not be objectionable; we do not mean to suggest
that the fact that more than one person is libeled by a statement
is a defense to suit by a member of the group. However, we cannot
read the charge as being so limited. The jury was told:
"an imputation of impropriety or a crime to one or some of a
small group that casts suspicion upon all is actionable. It is
sufficient if Mr. Baer . . . proves . . . that he was one of a
group upon whom
suspicion was cast . . . ; but Mr. Baer
has the burden of showing that the defamation, if you find that
there was one, either was directed to him or
could have
been as one of a small group."
(Emphasis supplied.) The latitude allowed the jury to find
defamatory reference in this apparently impersonal discussion of
government affairs was thus too broad.
[
Footnote 7]
See Gilberg v. Goffi, 21 App.Div.2d 517, 251 N.Y.S.2d
823 (1964),
aff'd, 15 N.Y.2d 1023, 207 N.E.2d 620 (1965);
Comment, 114 U.Pa.L.Rev. 241 (1965).
[
Footnote 8]
The New Hampshire court fully recognized that this was the
subject of the column. It instructed the jury:
"You are entitled, I think, to find that the public had a right
to be informed about any difficulties or discrepancies in income or
thievery at this public area. It's in the public domain. It's
public property. . . . Keep in mind that the public has a right to
know how their public affairs are being conducted. . . ."
[
Footnote 9]
See, e.g., Opinion of the Justices, 73 N.H. 621, 62 A.
969 (1906).
[
Footnote 10]
For similar reasons, we reject any suggestion that our
references in
New York Times, 376 U.S. at
376 U. S. 282,
376 U. S. 283,
n. 23, and
Garrison, 379 U.S. at
379 U. S. 74; to
Barr v. Matteo, 360 U. S. 564,
mean that we have tied the
New York Times rule to the rule
of official privilege. The public interests protected by the
New York Times rule are interests in discussion, not
retaliation, and our reference to
Barr should be taken to
mean no more than that the scope of the privilege is to be
determined by reference to the functions it serves.
See
Pedrick, Freedom of the Press and the Law of Libel: The Modern
Revised Translation, 49 Cornell L.Q. 581, 590-591 (1964).
[
Footnote 11]
Compare, e.g., Clancy v. Daily News Corp., 202 Minn. 1,
277 N.W. 264 (1938);
Tanzer v. Crowley Publishing Corp.,
240 App.Div. 203, 268 N.Y.Supp. 620 (1934);
Poleski v. Polish
Am. Publishing Co., 254 Mich. 15, 235 N.W. 841 (1931); 1
Harper & James, Torts § 5.26, pp. 449-450 (1956); Prosser,
Torts § 110, p. 815 (3d ed.1964); Noel, Defamation of Public
Officers and Candidates, 49 Col.L.Rev. 875, 896-897, 901-902
(1949); Comment, 113 U.Pa.L.Rev. 284, 288 (1964); Note, 18
Vand.L.Rev. 1429, 1445 (1965).
[
Footnote 12]
We are treating here only the element of public position, since
that is all that has been argued and briefed. We intimate no view
whatever whether there are other bases for applying the
New
York Times standards -- for example, that, in a particular
case, the interests in reputation are relatively insubstantial
because the subject of discussion has thrust himself into the
vortex of the discussion of a question of pressing public concern.
Cf. Salinger v. Cowles, 195 Iowa 873, 889, 191 N.W. 167,
173-174 (1922);
Peck v. Coos Bay Times Publishing Co., 122
Ore. 408, 420-421, 259 P. 307, 311-312 (1927);
Coleman v.
MacLennan, 78 Kan. 711, 723-724, 98 P. 281, 285-286 (1908);
Pauling v. News Syndicate Co., 335 F.2d 659, 671 (C.A.2d
Cir.1964).
[
Footnote 13]
It is suggested that this test might apply to a night watchman
accused of stealing state secrets. But a conclusion that the
New York Times malice standards apply could not be reached
merely because a statement defamatory of some person in government
employ catches the public's interest; that conclusion would
virtually disregard society's interest in protecting reputation.
The employee's position must be one which would invite public
scrutiny and discussion of the person holding it, entirely apart
from the scrutiny and discussion occasioned by the particular
charges in controversy.
[
Footnote 14]
It is not seriously contended, and could not be, that the fact
respondent no longer supervised the Area when the column appeared
has decisional significance here. To be sure, there may be cases
where a person is so far removed from a former position of
authority that comment on the manner in which he performed his
responsibilities no longer has the interest necessary to justify
the
New York Times rule. But here, the management of the
Area was still a matter of lively public interest; propositions for
further change were abroad, and public interest in the way in which
the prior administration had done its task continued strong. The
comment, if it referred to respondent, referred to his performance
of duty as a county employee.
[
Footnote 15]
1 Harper & James, Torts § 5.29 (1956); Prosser, Torts § 110,
p. 823 (3d ed.1964), Restatement, Torts § 619. Such a course will
both lessen the possibility that a jury will use the cloak of a
general verdict to punish unpopular ideas or speakers and assure an
appellate court the record and findings required for review of
constitutional decisions.
Cf. Speier v. Randall,
357 U. S. 513,
357 U. S. 525;
New York Times, 376 U.S. at
376 U. S.
285.
MR. JUSTICE DOUGLAS, concurring.
In
New York Times Co. v. Sullivan, 376 U.
S. 254, we dealt with elected officials. [
Footnote 2/1] We now have the question as
to how far its principles extend, or how far down the hierarchy we
should go.
The problems presented are considerable ones. Maybe the key man
in a hierarchy is the night watchman responsible for thefts of
state secrets. Those of us alive in the 1940's and 1950's witnessed
the dreadful ordeal of people in the public service being pummelled
by those inside and outside government with charges that were
false, abusive, and damaging to the extreme. Many of them, unlike
the officials in
New York Times who ran for election,
rarely had opportunity for rejoinder.
Page 383 U. S. 89
Yet if free discussion of public issues is the guide, I see no
way to draw lines that exclude the night watchman, the file clerk,
the typist, or, for that matter, anyone on the public payroll. And
how about those who contract to carry out governmental missions?
Some of them are as much in the public domain as any so-called
officeholder. And how about the dollar-a-year man, whose prototype
was publicized in
United States v. Mississippi Valley
Generating Co., 364 U. S. 520?
[
Footnote 2/2] And the
industrialists who raise the price of a basic commodity? Are not
steel and aluminum in the public domain? And the labor leader who
combines trade unionism with bribery and racketeering? Surely the
public importance of collective bargaining puts labor, as well as
management, into the public arena so far as the present
constitutional issue is concerned. [
Footnote 2/3]
The Court, in
Thornhill v. Alabama, 310 U. S.
88,
310 U. S.
101-102, put the issue as follows:
"The freedom of speech and of the press guaranteed by the
Constitution embraces at the least the liberty to discuss publicly
and truthfully all matters of public concern without previous
restraint or fear of subsequent punishment. The exigencies of the
colonial period and the efforts to secure freedom from oppressive
administration developed a broadened conception of these liberties
as adequate to supply the public need for information and education
with respect to the significant issues of the times. . . . Freedom
of discussion, if it would fulfill its historic function in this
nation, must embrace
Page 383 U. S. 90
all issues about which information is needed or appropriate to
enable the members of society to cope with the exigencies of their
period."
If the term "public official" were a constitutional term, we
would be stuck with it, and have to give it content. But the term
is our own, and so long as we are fashioning a rule of free
discussion of public issues, I cannot relate it only to those who,
by the Court's standard, are deemed to hold public office.
The question, in final analysis, is the extent to which the Due
Process Clause of the Fourteenth Amendment has displaced the libel
laws of the States. I do not suppose anyone would have thought in
those terms at the time the Amendment was adopted. But
constitutional law is not frozen as of a particular moment of time.
It was indeed not until 1931 that this Court squarely held that the
First Amendment was applicable to the States by reason of the
Fourteenth (
Stromberg v. California, 283 U.
S. 359,
283 U. S.
368-369) --
New York Times being merely an
application and extension of that principle. But since freedom of
speech is now the guideline, do state libel laws have any place at
all in our constitutional system, at least when it comes to public
issues? If freedom of speech is the guide, why is it restricted to
speech addressed to the larger public matters, and not applicable
to speech at the lower levels of science, the humanities, the
professions, agriculture, and the like?
In my view, the First Amendment would bar Congress from passing
any libel law, the Alien and Sedition Act (1 Stat. 596) to the
contrary notwithstanding. Some think that due process, as applied
to the States, is a watered-down federal version as respects the
guarantees in the Bill of Rights that are incorporated into the
Fourteenth Amendment.
See, e.g., Roth v. United States,
354 U. S. 476,
354 U. S. 501
(separate opinion);
Beauharnais v. Illinois, 343 U.
S. 250,
343 U. S. 287
(dissenting opinion).
Page 383 U. S. 91
That has been the minority view, the majority maintaining that
there is no difference. If there is no difference, and if I am
right in assuming Congress could not constitutionally pass a libel
law, then the question is whether a public issue, not a public
official, is involved. [
Footnote
2/4]
The case is therefore, for me, in a different posture than the
one discussed by the Court. I would prefer to dismiss the writ as
improvidently granted. [
Footnote
2/5] To facilitate our work, [
Footnote 2/6] however, I have decided to join Part II of
the Court's opinion, as well as MR. JUSTICE BLACK's separate
opinion, and to concur in the judgment.
[
Footnote 2/1]
And cf. Farmers Union v. WDAY, 360 U.
S. 525, holding that a radio station is not liable for
defamatory statements made in a speech broadcast over such station
under § 315(a) of the Federal Communications Act of 1934 by a
candidate for public office.
[
Footnote 2/2]
He, in fact, received no compensation from the Government, but
was given $10 per day in lieu of subsistence, plus transportation
expenses.
See 364 U.S. at
364 U. S.
533.
[
Footnote 2/3]
Cf. Linn v. United Plant Guard Workers, ante p.
383 U. S. 53, where
the principle of
New York Times Co. v. Sullivan, supra, is
extended, via the path of preemption, to the field of labor
relations.
[
Footnote 2/4]
There is the view that the
"most absolute construction of the First Amendment, as applied
to the states by the Fourteenth, would permit a line to be drawn
between the spurious common law of seditious libel and the genuine
common law of civil liability for defamation of private
character."
Brant, The Bill of Rights: Its Origin and Meaning 502-503
(1965). But that
ipse dixit overlooks our decisions which,
without defining the outer limits, establish that the First
Amendment applies to both.
Compare New York Times Co. v.
Sullivan, supra, with Garrison v. Louisiana, 379 U. S.
64.
[
Footnote 2/5]
The complaint was drawn and the trial conducted in conformity
with the defamation law as it existed prior to
New York
Times. Whether the complaint can be amended to conform to the
theory of liability announced in
New York Times is wholly
a matter of state law.
See N.H.Rev.Stat.Ann. § 514:9
(1955). Whether there can be a new trial is also wholly a matter of
state law.
See N.H.Rev.Stat.Ann. § 526:1 (1955). Whether
respondent is a "public official" in the
New York Times
sense is not ascertainable from the record. We do not even know
whether he took an oath of office. So far as we know, he may have
been a hybrid in the nature of an independent contractor. Moreover,
the oral argument and the briefs were not squarely addressed to the
larger and profoundly important questions stirred by this
litigation.
[
Footnote 2/6]
Cf. Mr. Justice Rutledge in
Screws v. United
States, 325 U. S. 91,
325 U. S. 113,
325 U. S.
134.
MR. JUSTICE STEWART, concurring.
The Constitution does not tolerate actions for libel on
government. State defamation laws, therefore, whether
Page 383 U. S. 92
civil or criminal, cannot constitutionally be converted into
laws against seditious libel. Our decisions in the
New York
Times and
Garrison cases turned upon that fundamental
proposition. [
Footnote 3/1] What
the Court says today seems to me fully consonant with those
decisions, and I join the Court's opinion and judgment.
It is a fallacy, however, to assume that the First Amendment is
the only guidepost in the area of state defamation laws. It is not.
As the Court says,
"important social values . . . underlie the law of defamation.
Society has a pervasive and strong interest in preventing and
redressing attacks upon reputation."
The right of a man to the protection of his own reputation from
unjustified invasion and wrongful hurt reflects no more than our
basic concept of the essential dignity and worth of every human
being -- a concept at the root of any decent system of ordered
liberty. The protection of private personality, like the protection
of life itself, is left primarily to the individual States under
the Ninth and Tenth Amendments. But this does not mean that the
right is entitled to any less recognition by this Court as a basic
of our constitutional system.
We use misleading euphemisms when we speak of the
New York
Times rule as involving "uninhibited, robust, and wide-open"
debate, or "vehement, caustic, and sometimes unpleasantly sharp"
criticism. [
Footnote 3/2] What the
New York Times rule ultimately protects is defamatory
falsehood. No matter how gross the untruth, the
New York
Times rule deprives a defamed public official of any hope for
legal redress without proof that the lie was a knowing one, or
uttered in reckless disregard of the truth.
Page 383 U. S. 93
That rule should not be applied except where a State's law of
defamation has been unconstitutionally converted into a law of
seditious libel. [
Footnote 3/3] The
First and Fourteenth Amendments have not stripped private citizens
of all means of redress for injuries inflicted upon them by
careless liars. [
Footnote 3/4] The
destruction that defamatory falsehood can bring is, to be sure,
often beyond the capacity of the law to redeem. Yet, imperfect
though it is, an action for damages is the only hope for
vindication or redress the law gives to a man whose reputation has
been falsely dishonored.
Moreover, the preventive effect of liability for defamation
serves an important public purpose. For the rights and values of
private personality far transcend mere
Page 383 U. S. 94
personal interests. Surely if the 1950's taught us anything,
they taught us that the poisonous atmosphere of the easy lie can
infect and degrade a whole society.
[
Footnote 3/1]
New York Times Co. v. Sullivan, 376 U.
S. 254;
Garrison v. Louisiana, 379 U. S.
64.
[
Footnote 3/2]
See New York Times Co. v. Sullivan, 376 U.S. at
376 U. S.
270.
[
Footnote 3/3]
This is not to say that there do not exist situations where, for
other reasons, state defamation laws may be similarly limited.
See Linn v. United Plant Guard Worker, ante p.
383 U. S. 53.
[
Footnote 3/4]
Irving Brant has recently made the point well:
"Civil actions for slander and libel developed in early ages as
a substitute for the duel and a deterrent to murder. They lie
within the genuine orbit of the common law, and, in the
distribution of American sovereignty, they fall exclusively within
the jurisdiction of the states. The First Amendment further assures
their exclusion from the federal domain. The Fourteenth Amendment,
by absorbing the First, unquestionably gives the Supreme Court
authority to block state use of civil suits as a substitute for
laws of seditious libel. But, considering the differences in
derivation, in purpose, in value to society, and in the natural
location of power, there seems to be no compelling constitutional
reason to bar private suits. The most absolute construction of the
First Amendment, as applied to the states by the Fourteenth, would
permit a line to be drawn between the spurious common law of
seditious libel and the genuine common law of civil liability for
defamation of private character. It is the misuse of civil
liability that offends the Constitution."
Brant, The Bill of Rights Its Origin and Meaning 502-503
(1965).
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
concurring and dissenting.
Respondent Baer managed the financial affairs of a ski
recreation center owned and operated by Belknap County, New
Hampshire. Petitioner Rosenblatt, an unpaid columnist for a local
newspaper, published a column criticizing the past management of
the center. Baer thought the column implied dishonest manipulations
in his handling of the finances for the center. Charging this, he
sued Rosenblatt for libel, and obtained a verdict for $31,500 which
the Supreme Court of New Hampshire affirmed. This Court, relying on
New York Times Co. v. Sullivan, 376 U.
S. 254, and
Garrison v. Louisiana, 379 U. S.
64, reverses that judgment and remands to the state
court under conditions expressed in its opinion that will allow a
new trial and another judgment against Rosenblatt. I concur in the
reversal, but dissent from leaving the case open for a new trial,
believing that, for reasons stated in the concurring opinions of
MR. JUSTICE DOUGLAS and myself in the
New York Times and
Garrison cases, a libel judgment against Rosenblatt is
forbidden by the First Amendment, which the Fourteenth made
applicable to the States.
I think the publication here, discussing the way an agent of
government does his governmental job, is the very kind that the
First Amendment was adopted primarily to protect. The article here
sued on as libelous discusses the use of the public's money to take
care of the public's business by a paid agent of the public.
Unconditional freedom to criticize the way such public functions
are performed is, in my judgment, necessarily included in the
guarantees of the First Amendment.
Page 383 U. S. 95
And the right to criticize a public agent engaged in public
activities cannot safely, and should not, depend upon whether or
not that agent is arbitrarily labeled a "public official." Nor
should the right to criticize depend upon how high a position in
government a public agent may occupy. Indeed, a large percentage of
public moneys expended is distributed by local agents handling
local funds as the respondent in this case did. To be faithful to
the First Amendment's guarantees, this Court should free private
critics of public agents from fear of libel judgments for money,
just as it has freed critics from fear of pains and penalties
inflicted by government.
This case illustrates, I think, what a short and inadequate step
this Court took in the
New York Times case to guard free
press and free speech against the grave dangers to the press and
the public created by libel actions. Half-million-dollar judgments
for libel damages like those awarded against the
New York
Times will not be stopped by requirements that "malice" be
found, however that term is defined. Such a requirement is little
protection against high emotions and deep prejudices which
frequently pervade local communities where libel suits are tried.
And this Court cannot and should not limit its protection against
such press-destroying judgments by reviewing the evidence,
findings, and court rulings only on a case-by-case basis. The only
sure way to protect speech and press against these threats is to
recognize that libel laws are abridgments of speech and press, and
therefore are barred in both federal and state courts by the First
and Fourteenth Amendments. I repeat what I said in the
New York
Times -- case that
"An unconditional right to say what one pleases about public
affairs is what I consider to be the minimum guarantee of the First
Amendment."
Finally, since this case is to be sent back and a new trial may
follow, I add one further thought. The Court
Page 383 U. S. 96
indicates that, in a retrial, it will be for the trial judge "in
the first instance" to decide whether respondent is a "public
official." Statements like this have a way of growing, and I fear
that the words "in the first instance" will soon be forgotten. When
that happens, the rule will be that the Federal Constitution
forbids States to let juries decide essentially jury questions in
libel cases. After a long fight in England, Fox's Libel Act of 1792
was passed, and it provided that juries should be the judges of
both the law and the facts in libel cases. This was heralded by all
lovers of freedom of speech and press as a victory for freedom.
This rule was particularly approved in this country, where, in
1735, John Peter Zenger was prosecuted in a highly publicized trial
for criticizing the government of New York. In that case, the Chief
Justice of the Province of New York got rid of two lawyers who
dared defend Zenger by disbarring them. The lawyer who finally
defended Zenger, Andrew Hamilton, won imperishable fame in this
country by his boldness in telling the jury that they, not the
judge, had the right to say whether or not the defendant was
guilty. Zenger was acquitted. 17 How.St.Tr. 675. Many of the States
familiar with this oppressive practice of denying the jury and
granting the judge power to determine the guilt of a defendant in
libel cases wrote in their constitutions special provisions to
protect the right to trial by jury in such cases. I regret to see
the Court take a single step in the direction of holding that a
judge, rather than the jury, is to have the determination of any
fact in libel cases.
Compare Jackson v. Denno,
378 U. S. 368.
MR. JUSTICE HARLAN, concurring in part and dissenting in
part.
I agree with the Court's opinion except for Part II, in which a
section of the trial court's charge is characterized
Page 383 U. S. 97
as depending upon a "theory" of "impersonal" libel, which we
held constitutionally impermissible in
New York Times Co. v.
Sullivan, 376 U. S. 254.
In
New York Times, in addition to establishing a
constitutional standard governing actions for defamation of public
officials, we went on to examine the evidence in that particular
case. We found that "it was incapable of supporting the jury's
finding that the allegedly libelous statements were made
of and
concerning' respondent." 376 U.S. at 376 U. S. 288.
The statements in question, in general terms, attributed misconduct
to the police of Montgomery, Alabama, during civil rights
activities. The plaintiff in the libel suit, the Commissioner of
Public Affairs, pressed his action not on the theory that the
statements referred to him, but instead "solely on the unsupported
assumption that, because of his official position," the statements
must be taken as indicating that he had been involved in the
misconduct. 376 U.S. at 376 U. S. 289.
The Supreme Court of Alabama held that,
"[i]n measuring the performance or deficiencies of . . . groups
[such as the police], praise or criticism is usually attached to
the official in complete control of the body,"
273 Ala. 656, at 674-675,
144 So. 2d
25, at 39, and allowed the action by the Commissioner.
In setting aside the state judgment, we noted that this
proposition had "disquieting implications for criticism of
governmental conduct," 376 U.S. at
376 U. S. 291,
for it permitted any general statement criticizing some
governmental activity to be transmuted into a cause of action for
personal libel by the official in charge of that activity. We
stated that the liberty of expression embodied in the Fourteenth
Amendment forbade a State from permitting "an otherwise impersonal
attack on governmental operations" to be used as the basis of "a
libel of an official responsible for those operations." 376 U.S. at
376 U. S.
292.
Page 383 U. S. 98
This salutary principle has been applied, I believe incorrectly,
to the facts of this case. It is true that, on its face, the
alleged libel here seems to discuss only the conduct of
governmental operations,
viz., the comparative improvement
in the management of the ski area. However, the theory on which
respondent based his claim is that the rhetorical question, "What
happened to all the money last year? and every other year?" was
read as accusing him of speculation or culpable mismanagement. The
trial court and the Supreme Court of New Hampshire, as well as this
Court, have found this a permissible reading of the newspaper
article.
The charge of the trial court did not leave the jury free to
convert an "impersonal" into a "personal" libel. The court merely
instructed the jury that, if it interpreted the article as an
accusation of misconduct the jury could find for the plaintiff if
either he alone was found to be libeled or he was one of a small
group of persons so libeled.
* This is
conventional tort law.
"[I]f the group
Page 383 U. S. 99
is small enough numerically or sufficiently restricted
geographically so that people reasonably think the defamatory
utterance was directed to or intended to include the plaintiff,
there may be a recovery."
1 Harper & James, Torts § 5.7, at 367 (1956).
See
also Prosser, Torts § 106, at 767-768 (1964); Riesman,
Democracy and Defamation: Control of Group Libel, 42 Col.L.Rev.
727, 759-760 (1942). The Restatement of Torts § 564, Comment
c (1938), includes this aspect of defamation in language
very similar to that of the charge in this case:
"The size of the class may be so small as to indicate that the
plaintiff is the person intended or at least to cast such grave
suspicion upon him as to be defamatory of him. Thus, a statement
that all members of a school board or a city council are corrupt is
sufficiently definite to constitute a defamatory publication of
each member thereof. If, however, the group or class disparaged is
a large one, some particular circumstances must point to the
plaintiff as the person defamed. Thus, a statement that all lawyers
are dishonest, or that all ministers are liars, is not defamatory
of any particular lawyer or minister unless the surrounding
circumstances indicate that he was the person intended."
This and the trial court's formulation can scarcely be thought
too indefinite, for they reflect standards successfully applied
over the years in numerous state cases.
See, e.g., Gross v.
Cantor, 270 N.Y. 93, 200 N.E. 592; cases cited in Harper &
James,
supra, § 5.7, at 367, and Prosser,
supra,
§ 106, at 767-768. The rule is an eminently sound one.
Page 383 U. S. 100
As to the facts at hand, it seems to be agreed -- apart, of
course, from the public official "malice" rule which would apply,
in any event -- that, if the article in question is read by the
jury as an accusation of wrongdoing by Baer, he has a good cause of
action in libel. I see no reason why that cause of action should
fail if the jury finds that the article was read as accusing the
three Commissioners along with Baer. This is a very different case
from
New York Times, where the alleged libel concerned not
an identified small group responsible for the running of a
particular public enterprise, but a criticism of "the police"
generally in the discharge of their duties. It seems manifest that,
in instructing the jury as to a "small group," the trial judge was
not allowing the plaintiff to transform impersonal governmental
criticism into an individual cause of action, but was simply
referring to this traditional tort doctrine that more than one
person can be libeled by the same statement. I cannot understand
why a statement which a jury is permitted to read as meaning "A is
a thief" should become absolutely privileged if it is read as
meaning "A, B, C, and D are thieves."
Without receding in any way from our ruling in
New York
Times that impersonal criticism of government cannot be made a
basis for a libel action by an official who heads the branch or
agency involved, I dissent from the Court's conclusion that this is
such a case. In all other respects, I join the Court's opinion.
* The trial judge charged the jury as follows:
"An insinuation of a crime is actionable as a positive assertion
if the meaning is reasonably plain and clear, and the putting of
the words in the form of a question does not change the liability
of the defendant if the form and sense of the question is
defamatory or derogatory. Now, an imputation of impropriety or a
crime to one or some of a small group that casts suspicion upon all
is actionable. It is sufficient if Mr. Baer, the plaintiff here,
proves on the balance of probabilities by his evidence that he was
one of a group upon whom suspicion was cast, and the fact that
others in this group might also have been libeled is not a defense;
but Mr. Baer has the burden of showing that the defamation, if you
find that there was one, either was directed to him or could have
been as one of a small group."
R. Vol. V pp. 148-149.
"
* * * *"
"Now, as to any part of the article which you, if you do, find
defamatory, and that Mr. Baer was intended, or he with a few others
was intended, he and a small group, if you find that it was
derogatory of him and charged him with a crime, held him up to
scorn and ridicule, that he was the fellow, either singly or in a
small group, then you can go on to consider -- and you should --
whether the publication was privileged or justified. . . ."
R. Vol. V, pp. 151-152.
MR. JUSTICE FORTAS, dissenting.
I would vacate the writ in this case as improvidently granted.
The trial below occurred before this Court's decision in
New
York Times Co. v. Sullivan, 376 U. S. 254. As
a result, the factual record in this case was not shaped in light
of the principles announced in
New York Times.
Particularly in this type of case, it is important to observe
Page 383 U. S. 101
the practice of relating our decisions to factual records. They
serve to guide our judgment, and to help us measure theory against
the sharp outlines of reality. Especially where our decision
furnishes a necessarily Procrustean bed for state law, I think,
with all respect, that we should insist upon a relevant factual
record. A subsequent trial may conceivably help respondent, but it
will be too late to be of assistance to us.