Respondent's radio station, which broadcast news reports every
half hour, broadcast news stories of petitioner's arrest for
possession of obscene literature and the police seizure of "obscene
books," and stories concerning petitioner's lawsuit against certain
officials alleging that the magazines he distributed were not
obscene and seeking injunctive relief from police interference with
his business. These latter stories did not mention petitioner's
name, but used the terms "smut literature racket" and "girlie-book
peddlers." Following petitioner's acquittal of criminal obscenity
charges, he filed this diversity action in District Court seeking
damages under Pennsylvania's libel law. The jury found for
petitioner and awarded $25,000 in general damages; and $725,000 in
punitive damages, which was reduced by the court on remittitur to
$250,000. The Court of Appeals reversed, holding that the
New
York Times Co. v. Sullivan, 376 U. S. 254,
standard applied, and "the fact that plaintiff was not a public
figure cannot be accorded decisive significance."
Held: The judgment is affirmed. Pp.
403 U. S.
40-62.
415 F.2d 892, affirmed.
MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN, concluded that the
New York Times standard of
knowing or reckless falsity applies in a state civil libel action
brought by a private individual for a defamatory falsehood uttered
in a radio news broadcast about the individual's involvement in an
event of public or general interest. Pp.
403 U. S.
40-57.
MR. JUSTICE BLACK concluded that the First Amendment protects
the news media from libel judgments even when statements are made
with knowledge that they are false. P.
403 U. S.
57.
MR. JUSTICE WHITE concluded that, in the absence of actual
malice as defined in
New York Times, supra, the First
Amendment gives the news media a privilege to report and comment
upon the official actions of public servants in full detail,
without sparing from public view the reputation or privacy of an
individual involved in or affected by any official action. Pp.
403 U. S.
59-62.
Page 403 U. S. 30
BRENNAN, J., announced the Court's judgment and delivered an
opinion in which BURGER, C.J., and BLACKMUN, J., joined. BLACK, J.,
post, p.
403 U. S. 57,
and WHITE, J.,
post, p.
403 U. S. 57,
filed opinions concurring in the judgment. HARLAN, J., filed a
dissenting opinion,
post, p.
403 U. S. 62.
MARSHALL, J., filed a dissenting opinion in which STEWART, J.,
joined,
post, p.
403 U. S. 78.
DOUGLAS, J., took no part in the consideration or decision of this
case.
MR. JUSTICE BRENNAN announced the judgment of the Court and an
opinion in which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN
join.
In a series of cases beginning with
New York Times Co. v.
Sullivan, 376 U. S. 254
(1964), the Court has considered the limitations upon state libel
laws imposed by the constitutional guarantees of freedom of speech
and of the press.
New York Times held that in a civil
libel action by a public official against a newspaper those
guarantees required clear and convincing proof that a defamatory
falsehood alleged as libel was uttered with "knowledge that it was
false or with reckless disregard of whether it was false or not."
Id. at
376 U. S. 280.
The same requirement was later held to apply to "public figures"
who sued in libel on the basis of alleged defamatory falsehoods.
The several cases considered since
New York Times involved
actions of "public officials" or "public figures," usually, but not
always, against newspapers or magazines. [
Footnote 1] Common to all the cases was a
Page 403 U. S. 31
defamatory falsehood in the report of an event of "public or
general interest." [
Footnote 2]
The instant case presents the question whether the New York Times'
"knowing or reckless falsity standard" applies in a state civil
libel action brought not by a "public official" or a "public
figure," but by a private individual for a defamatory falsehood
uttered in a news broadcast by a radio station about the
individual's involvement in an event of public or general
Page 403 U. S. 32
interest. [
Footnote 3] The
District Court for the Eastern District of Pennsylvania held that
the
New York Times standard did not apply. and that
Pennsylvania law determined respondent's liability in this
diversity case,
289 F.
Supp. 737 (1968). The Court of Appeals for the Third Circuit
held that the
New York Times standard did apply, and
reversed the judgment for damages awarded to petitioner by the
jury. 415 F.2d 892 (1969). We granted certiorari, 397 U.S. 904
(1970). We agree with the Court of Appeals, and affirm that court's
judgment.
I
In 1963, petitioner was a distributor of nudist magazines in the
Philadelphia metropolitan area. During the fall of that year, in
response to citizen complaints, the Special Investigations Squad of
the Philadelphia Police Department initiated a series of
enforcement actions under the city's obscenity laws. The police,
under the command of Captain Ferguson, purchased various magazines
from more than 20 newsstands throughout the city. Based upon
Captain Ferguson's determination that the magazines were obscene,
[
Footnote 4] police, on October
1, 1963, arrested most of the newsstand operators [
Footnote 5] on charges of selling obscene
material. While the police were making an arrest at one newsstand,
petitioner arrived to deliver some of his nudist magazines, and was
immediately arrested
Page 403 U. S. 33
along with the newsboy. [
Footnote 6] Three days later, on October 4, the police
obtained a warrant to search petitioner's home and the rented barn
he used as a warehouse, and seized the inventory of magazines and
books found at these locations. Upon learning of the seizures,
petitioner, who had been released on bail after his first arrest,
surrendered to the police and was arrested for a second time.
Following the second arrest, Captain Ferguson telephoned
respondent's radio station WIP and another local radio station, a
wire service, and a local newspaper to inform them of the raid on
petitioner's home and of his arrest. WIP broadcast news reports
every half hour to the Philadelphia metropolitan area. These news
programs ran either five or ten minutes, and generally contained
from six to twenty different items that averaged about thirty
seconds each. WIP's 6 p.m. broadcast on October 4, 1963, included
the following item:
"City Cracks Down on Smut Merchants"
"The Special Investigations Squad raided the home of George
Rosenbloom in the 1800 block of Vesta Street this afternoon. Police
confiscated 1,000 allegedly obscene books at Rosenbloom's home and
arrested him on charges of possession of obscene literature. The
Special Investigations Squad also raided a barn in the 20 Hundred
block of Welsh Road near Bustleton Avenue and confiscated 3,000
obscene books. Capt. Ferguson says he believes they have hit the
supply of a main distributor of obscene material in Philadelphia.
"
Page 403 U. S. 34
This report was rebroadcast in substantially the same form at
6:30 p.m., but at 8 p.m., when the item was broadcast for the third
time, WIP corrected the third sentence to read "reportedly
obscene." News of petitioner's arrest was broadcast five more times
in the following twelve hours, but each report described the seized
books as "allegedly" or "reportedly" obscene. From October 5 to
October 21, WIP broadcast no further reports relating to
petitioner.
On October 16, petitioner brought an action in Federal District
Court against various city and police officials and against several
local news media. [
Footnote 7]
The suit alleged that the magazines petitioner distributed were not
obscene, and sought injunctive relief prohibiting further police
interference with his business, as well as further publicity of the
earlier arrests. The second series of allegedly defamatory
broadcasts related to WIP's news reports of the lawsuit. There were
ten broadcasts on October 21, two on October 25, and one on
November 1. None mentioned petitioner by name. The first, at 6:30
a.m. on October 21, was pretty much like those that followed:
"Federal District Judge Lord, will hear arguments today from two
publishers and a distributor all seeking an injunction against
Philadelphia Police Commissioner Howard Leary . . . District
Attorney James C. Crumlish . . . a local television station and a
newspaper . . . ordering them to lay off the smut literature
racket."
"The girlie-book peddlers say the police crackdown
Page 403 U. S. 35
and continued reference to their borderline literature as smut
or filth is hurting their business. Judge Lord refused to issue a
temporary injunction when he was first approached. Today he'll
decide the issue. It will set a precedent . . . and if the
injunction is not granted . . . it could signal an even more
intense effort to rid the city of pornography."
On October 27, petitioner went to WIP's studios after hearing
from a friend that the station had broadcast news about his
lawsuit. Using a lobby telephone to talk with a part-time
newscaster, petitioner inquired what stories WIP had broadcast
about him. The newscaster asked him to be more specific about dates
and times. Petitioner then asked for the noon news broadcast on
October 21, 1963, which the newscaster read to him over the phone;
it was similar to the above 6:30 a.m. broadcast. According to
petitioner, the ensuing interchange was brief. Petitioner told the
newscaster that his magazines were "found to be completely legal
and legitimate by the United States Supreme Court." When the
newscaster replied the district attorney had said the magazines
were obscene, petitioner countered that he had a public statement
of the district attorney declaring the magazines legal. At that
point, petitioner testified, "the telephone conversation was
terminated. . . . He just hung up." Petitioner apparently made no
request for a retraction or correction, and none was forthcoming.
WIP's final report on petitioner's lawsuit -- the only one after
petitioner's unsatisfactory conversation at the station -- occurred
on November 1 after the station had checked the story with the
judge involved. [
Footnote
8]
Page 403 U. S. 36
II
In May, 1964 a jury acquitted petitioner in state court of the
criminal obscenity charges under instructions of the trial judge
that, as a matter of law, the nudist magazines distributed by
petitioner were not obscene. Following his acquittal, petitioner
filed this diversity action in District Court seeking damages under
Pennsylvania's libel law. Petitioner alleged that WIP's unqualified
characterization of the books seized as "obscene" in the 6 and 6:30
p.m. broadcasts of October 4, describing his arrest, constituted
libel
per se and was proved false by petitioner's
subsequent acquittal. In addition, he alleged that the broadcasts
in the second series describing his court suit for injunctive
relief were also false and defamatory in that WIP characterized
petitioner and his business associates as "smut distributors" and
"girlie-book peddlers" and, further, falsely characterized the suit
as an attempt to force the defendants "to lay off the smut
literature racket."
At the trial, WIP's defenses were truth and privilege. WIP's
news director testified that his eight-man staff of reporters
prepared their own newscasts and broadcast their material
themselves, and that material for the news programs usually came
either from the wire services or from telephone tips. None of the
writers or broadcasters involved in preparing the broadcasts in
this case testified. The news director's recollection was that the
primary source of information for the first series of
broadcasts
Page 403 U. S. 37
about petitioner's arrest was Captain Ferguson, but that, to the
director's knowledge, the station did not have any further
verification. Captain Ferguson testified that he had informed WIP
and other media of the police action, and that WIP had accurately
broadcast what he told the station. The evidence regarding WIP's
investigation of petitioner's lawsuit in the second series of
broadcasts was even more sparse. The news director testified that
he was "sure we would check with the District Attorney's office
also and with the Police Department," but "it would be difficult
for me to specifically state what additional corroboration we had."
In general, he testified that WIP's half-hour deadlines required it
to rely on wire service copy and oral reports from previously
reliable sources, subject to the general policy that "we will
contact as many sources as we possibly can on any kind of a
story."
III
Pennsylvania's libel law tracks almost precisely the Restatement
(First) of Torts provisions on the subject. Pennsylvania holds
actionable any unprivileged "malicious" [
Footnote 9] publication of matter which tends to harm a
person's reputation and expose him to public hatred, contempt, or
ridicule.
Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860
(1954); Restatement of Torts §§ 558, 559 (1938). Pennsylvania law
recognizes truth as a complete defense to a libel action.
Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A.2d 504, 507
(1969); Restatement of Torts § 582. It recognizes an absolute
immunity for defamatory statements made by high state officials,
even if published with an improper motive, actual malice, or
knowing falsity.
Montgomery v. Philadelphia, 392 Pa. 178,
140 A.2d 100 (1958); Restatement of Torts § 591,
Page 403 U. S. 38
and it recognizes a conditional privilege for news media to
report judicial, administrative, or legislative proceedings if the
account is fair and accurate, and not published solely for the
purpose of causing harm to the person defamed, even though the
official information is false or inaccurate.
Sciandra v.
Lynett, 409 Pa. 595, 600-601, 187 A.2d 586, 588-589 (1963);
Restatement of Torts § 611. The conditional privilege of the news
media may be defeated, however, by
"'want of reasonable care and diligence to ascertain the truth,
before giving currency to an untrue communication.' The failure to
employ such 'reasonable care and diligence' can destroy a privilege
which otherwise would protect the utterer of the
communication."
Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167,
179, 191 A.2d 662, 668 (1963). Pennsylvania has also enacted
verbatim the Restatement's provisions on burden of proof, which
place the burden of proof for the affirmative defenses of truth and
privilege upon the defendant. [
Footnote 10]
Page 403 U. S. 39
At the close of the evidence, the District Court denied
respondent's motion for a directed verdict and charged the jury, in
conformity with Pennsylvania law, that four findings were necessary
to return a verdict for petitioner: (1) that one or more of the
broadcasts were defamatory; (2) that a reasonable listener would
conclude that the defamatory statement referred to petitioner; (3)
that WIP had forfeited its privilege to report official proceedings
fairly and accurately, either because it intended to injure the
plaintiff personally or because it exercised the privilege
unreasonably and without reasonable care; and (4) that the
reporting was false. The jury was instructed that petitioner had
the burden of proof on the first three issues, but that respondent
had the burden of proving that the reporting was true. The jury was
further instructed that, "as a matter of law," petitioner was not
entitled to actual damages claimed for loss of business "not
because it wouldn't ordinarily be, but because there has been
evidence that this same subject matter was the subject" of
broadcasts over other television and radio stations and of
newspaper reports, "so if there was any business lost . . . we have
no proof . . . that [it] resulted directly from the broadcasts by
WIP. . . ." App. 331a. On the question of punitive damages, the
judge gave the following instruction:
"[I]f you find that this publication arose from a bad motive or
malice toward the plaintiff, or if you find that it was published
with reckless indifference to the truth, if you find that it was
not true, you would be entitled to award punitive damages, and
punitive damages are awarded as a deterrent from future conduct of
the same sort."
"They really are awarded only for outrageous conduct, as I have
said, with a bad motive or with reckless disregard of the interests
of others, and before
Page 403 U. S. 40
you would award punitive damages, you must find that these
broadcasts were published with a bad motive or with reckless
disregard of the rights of others, or reckless indifference to the
rights of others. . . ."
The jury returned a verdict for petitioner and awarded $25,000
in general damages, and $725,000 in punitive damages. The District
Court reduced the punitive damages award to $250,000 on remittitur,
but denied respondent's motion for judgment
n.o.v. In
reversing, the Court of Appeals emphasized that the broadcasts
concerned matters of public interest, and that they involved "hot
news" prepared under deadline pressure. The Court of Appeals
concluded that
"the fact that plaintiff was not a public figure cannot be
accorded decisive importance if the recognized important guarantees
of the First Amendment are to be adequately implemented."
415 F.2d at 896. For that reason, the court held that the
New York Times standard applied and, further, directed
that judgment be entered for respondent, holding that, as a matter
of law, petitioner's evidence did not meet that standard.
IV
Petitioner concedes that the police campaign to enforce the
obscenity laws was an issue of public interest, and, therefore,
that the constitutional guarantees for freedom of speech and press
imposed limits upon Pennsylvania's power to apply its libel laws to
compel respondent to compensate him in damages for the alleged
defamatory falsehoods broadcast about his involvement. As noted,
the narrow question he raises is whether, because he is not a
"public official" or a "public figure," but a private individual,
those limits required that he prove that the falsehoods resulted
from a failure of respondent to exercise reasonable care, or
required that he prove that
Page 403 U. S. 41
the falsehoods were broadcast with knowledge of their falsity or
with reckless disregard of whether they were false or not. That
question must be answered against the background of the functions
of the constitutional guarantees for freedom of expression.
Rosenblatt v. Baer, 383 U. S. 75, at
383 U. S. 84-85,
n. 10 (1966).
Self-governance in the United States presupposes far more than
knowledge and debate about the strictly official activities of
various levels of government. The commitment of the country to the
institution of private property, protected by the Due Process and
Just Compensation Clauses in the Constitution, places in private
hands vast areas of economic and social power that vitally affect
the nature and quality of life in the Nation. Our efforts to live
and work together in a free society not completely dominated by
governmental regulation necessarily encompass far more than
politics in a narrow sense. "The guarantees for speech and press
are not the preserve of political expression or comment upon public
affairs."
Time, Inc. v. Hill, 385 U.
S. 374,
385 U. S. 388
(1967).
"Freedom of discussion, if it would fulfill its historic
function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of
society to cope with the exigencies of their period."
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 102
(1940). Although the limitations upon civil libel actions, first
held in
New York Times to be required by the First
Amendment, were applied in that case in the context of defamatory
falsehoods about the official conduct of a public official, later
decisions have disclosed the artificiality, in terms of the
public's interest, of a simple distinction between "public" and
"private" individuals or institutions:
"Increasingly in this country, the distinctions between
governmental and private sectors are blurred. . . . In many
situations, policy determinations
Page 403 U. S. 42
which traditionally were channeled through formal political
institutions are now originated and implemented through a complex
array of boards, committees, commissions, corporations, and
associations, some only loosely connected with the Government. This
blending of positions and power has also occurred in the case of
individuals so that many who do not hold public office at the
moment are nevertheless intimately involved in the resolution of
important public questions. . . ."
". . . Our citizenry has a legitimate and substantial interest
in the conduct of such persons, and freedom of the press to engage
in uninhibited debate about their involvement in public issues and
events is as crucial as it is in the case of 'public
officials.'"
Curtis Publishing Co. v. Butts, 388 U.
S. 130,
388 U. S.
163-164 (1967) (Warren, C.J., concurring in result).
Moreover, the constitutional protection was not intended to be
limited to matters bearing broadly on issues of responsible
government.
"[T]he Founders . . . felt that a free press would advance
'truth, science, morality, and arts in general,' as well as
responsible government."
Id. at
388 U. S. 147
(opinion of HARLAN, J.). Comments in other cases reiterate this
judgment that the First Amendment extends to myriad matters of
public interest. In
Time, Inc. v. Hill, supra, we had "no
doubt that the . . . opening of a new play linked to an actual
incident, is a matter of public interest," 385 U.S. at
385 U. S. 388,
which was entitled to constitutional protection.
Butts
held that an alleged "fix" of a college football game was a public
issue.
Associated Press v. Walker, 388 U.
S. 130 (1967), a companion case to
Butts,
established that the public had a similar interest in the events
and personalities involved in federal efforts to enforce a court
decree ordering the enrollment of a Negro student in the University
of Mississippi. Thus, these cases underscore the vitality, as
Page 403 U. S. 43
well as the scope, of the "profound national commitment to the
principle that debate on
public issues should be
uninhibited, robust, and wide-open."
New York Times Co. v.
Sullivan, 376 U.S. at
376 U. S. 270-271 (emphasis added).
If a matter is a subject of public or general interest, it
cannot suddenly become less so merely because a private individual
is involved, or because, in some sense, the individual did not
"voluntarily" choose to become involved. The public's primary
interest is in the event; the public focus is on the conduct of the
participant and the content, effect, and significance of the
conduct, not the participant's prior anonymity or notoriety.
[
Footnote 11] The present
case illustrates the point. The community has a vital interest in
the proper enforcement of its criminal laws, particularly in an
area such as obscenity, where a number of highly important values
are potentially in conflict: the public has an interest both in
seeing that the criminal law is adequately enforced and in assuring
that the law is not used unconstitutionally to suppress free
expression. Whether the person involved is a famous large-scale
magazine distributor or a "private" businessman running a corner
newsstand has no relevance in ascertaining whether the public has
an interest in the issue. We honor the commitment to robust debate
on public issues, which is embodied in the First Amendment,
Page 403 U. S. 44
by extending constitutional protection to all discussion and
communication involving matters of public or general concern,
without regard to whether the persons involved are famous or
anonymous. [
Footnote 12]
Our Brother WHITE agrees that the protection afforded by the
First Amendment depends upon whether the issue involved in the
publication is an issue of public or general concern. He would,
however, confine our holding to the situation raised by the facts
in this case, that is, limit it to issues involving "official
actions of public servants." In our view, that might be misleading.
It is clear that there has emerged from our cases decided since
New York Times the concept that the First Amendment's
impact upon state libel laws derives not so much from whether the
plaintiff is a "public official," "public figure," or "private
individual," as it derives from the question whether the allegedly
defamatory publication concerns a matter of public or general
interest.
See T. Emerson, The System of Freedom of
Expression 531-532, 540 (1970). In that circumstance, we think the
time has come forthrightly to announce that the determinant whether
the First Amendment applies to state libel actions is whether the
utterance involved concerns an issue of public or general concern,
albeit leaving the
Page 403 U. S. 45
delineation of the reach of that term to future cases. As our
Brother WHITE observes, that is not a problem in this case, since
police arrest of a person for distributing allegedly obscene
magazines clearly constitutes an issue of public or general
interest. [
Footnote 13]
V
We turn then to the question to be decided. Petitioner's
argument that the Constitution should be held to require that the
private individual prove only that the publisher failed to exercise
"reasonable care" in publishing defamatory falsehoods proceeds
along two lines. First, he argues that the private individual,
unlike the public figure, does not have access to the media to
counter the defamatory material, and that the private individual,
unlike the public figure, has not assumed the risk of defamation by
thrusting himself into the public arena. Second, petitioner focuses
on the important values served by the law of defamation in
preventing and redressing attacks upon reputation.
We have recognized the force of petitioner's arguments,
Time, Inc. v. Hill, supra, at
385 U. S. 391,
and we adhere to the caution expressed in that case against "blind
application" of the
New York Times standard.
Id.
at
385 U. S. 390.
Analysis of the particular factors involved, however, convinces us
that petitioner's arguments cannot be reconciled with the purposes
of the First Amendment, with our cases, and with the traditional
doctrines of libel law itself. Drawing a distinction between
"public"
Page 403 U. S. 46
and "private" figures makes no sense in terms of the First
Amendment guarantees. [
Footnote
14] The
New York Times standard was applied to libel
of a public official or public figure to give effect to the
Amendment's function to encourage ventilation of public issues, not
because the public official has any less interest in protecting his
reputation than an individual in private life. While the argument
that public figures need less protection because they can command
media attention to counter criticism may be true for some very
prominent people, even then, it is the rare case where the denial
overtakes the original charge. Denials, retractions, and
corrections are not "hot" news, and rarely receive the prominence
of the original story. When the public official or public figure is
a minor functionary, or has left the position that put him in the
public eye,
see Rosenblatt v. Baer, supra, the argument
loses all of its force. In the vast majority of libels involving
public officials or public figures, the ability to respond through
the media will depend on the same complex factor on which the
ability of a private individual depends: the unpredictable event of
the media's continuing interest in the story. Thus, the unproved,
and highly improbable, generalization that an as-yet undefined
class of "public figures" involved in matters of public concern
will be better able to respond
Page 403 U. S. 47
through the media than private individuals also involved in such
matters seems too insubstantial a reed on which to rest a
constitutional distinction. Furthermore, in First Amendment terms,
the cure seems far worse than the disease. If the States fear that
private citizens will not be able to respond adequately to
publicity involving them, the solution lies in the direction of
ensuring their ability to respond, rather than in stifling public
discussion of matters of public concern. [
Footnote 15]
Further reflection over the years since
New York Times
was decided persuades us that the view of the "public official" or
"public figure" as assuming the risk of defamation by voluntarily
thrusting himself into the public eye bears little relationship
either to the values protected by the First Amendment or to the
nature of our society. We have recognized that "[e]xposure of the
self to others in varying degrees is a concomitant of life in a
civilized community."
Time, Inc. v. Hill,
Page 403 U. S. 48
supra at
385 U. S. 388.
Voluntarily or not, we are all "public" men to some degree.
Conversely, some aspects of the lives of even the most public men
fall outside the area of matters of public or general concern.
See n 12,
supra; Griswold v. Connecticut, 381 U.
S. 479 (1965). [
Footnote 16] Thus, the idea that certain "public" figures
have voluntarily exposed their entire lives to public inspection,
while private individuals have kept theirs carefully shrouded from
public view is, at best, a legal fiction. In any event, such a
distinction could easily produce the paradoxical result of
dampening discussion of issues of public or general concern because
they happen to involve private citizens while extending
constitutional encouragement to discussion of aspects of the lives
of "public figures" that are not in the area of public or general
concern.
General references to the values protected by the law of libel
conceal important distinctions. Traditional arguments suggest that
libel law protects two separate interests of the individual: first,
his desire to preserve a certain privacy around his personality
from unwarranted intrusion, and, second, a desire to preserve his
public good name and reputation.
See Rosenblatt v. Baer,
383 U.S. at
383 U. S. 92
(STEWART, J., concurring). The individual's interest in privacy --
in preventing unwarranted intrusion upon the private aspects of his
life -- is not involved in this case, or even in the class of cases
under consideration, since, by hypothesis, the individual is
involved in matters of public or general concern. [
Footnote 17] In
Page 403 U. S. 49
the present case, however, petitioner's business reputation is
involved, and thus the relevant interests protected by state libel
law are petitioner's public reputation and good name.
These are important interests. Consonant with the libel laws of
most of the States, however, Pennsylvania's libel law subordinates
these interests of the individual in a number of circumstances.
Thus, high government officials are immune from liability --
absolutely privileged -- even if they publish defamatory material
from an improper motive, with actual malice, and with knowledge of
its falsity.
Montgomery v. Philadelphia, 392 Pa. 178, 140
A.2d 100 (1958). This absolute privilege attaches to judges,
attorneys at law in connection with a judicial proceeding, parties
and witnesses to judicial proceedings, Congressmen and state
legislators, and high national and state executive officials.
Restatement of Torts §§ 585-592. Moreover, a conditional privilege
allows newspapers to report the false defamatory material
originally published under the absolute privileges listed above, if
done accurately.
Sciandra v. Linett, 409 Pa. 595, 187 A.2d
586 (1963).
Even without the presence of a specific constitutional command,
therefore, Pennsylvania libel law recognizes that society's
interest in protecting individual reputation
Page 403 U. S. 50
often yields to other important social goals. In this case, the
vital needs of freedom of the press and freedom of speech persuade
us that allowing private citizens to obtain damage judgments on the
basis of a jury determination that a publisher probably failed to
use reasonable care would not provide adequate "breathing space"
for these great freedoms. Reasonable care is an "elusive standard"
that
"would place on the press the intolerable burden of guessing how
a jury might assess the reasonableness of steps taken by it to
verify the accuracy of every reference to a name, picture or
portrait."
Time, Inc. v. Hill, 385 U.S. at
385 U. S. 389.
Fear of guessing wrong must inevitably cause self-censorship, and
thus create the danger that the legitimate utterance will be
deterred.
Cf. Speer v. Randall, 357 U.
S. 513,
357 U. S. 526
(1958).
Moreover, we ordinarily decide civil litigation by the
preponderance of the evidence. Indeed, the judge instructed the
jury to decide the present case by that standard. In the normal
civil suit where this standard is employed,
"we view it as no more serious in general for there to be an
erroneous verdict in the defendant's favor than for there to be an
erroneous verdict in the plaintiff's favor."
In re Winship, 397 U. S. 358,
397 U. S. 371
(1970) (HARLAN, J., concurring). In libel cases, however, we view
an erroneous verdict for the plaintiff as most serious. Not only
does it mulct the defendant for an innocent misstatement -- the
three-quarter million dollar jury verdict in this case could rest
on such an error -- but the possibility of such error, even beyond
the vagueness of the negligence standard itself, would create a
strong impetus toward self-censorship, which the First Amendment
cannot tolerate. These dangers for freedom of speech and press led
us to reject the "reasonable man" standard of liability as "simply
inconsistent" with our national commitment under the First
Amendment when sought to be applied to the
Page 403 U. S. 51
conduct of a political campaign.
Monitor Patriot Co. v.
Roy, 401 U. S. 265,
401 U. S. 276
(1971). The same considerations lead us to reject that standard
here.
We are aware that the press has, on occasion, grossly abused the
freedom it is given by the Constitution. All must deplore such
excesses. In an ideal world, the responsibility of the press would
match the freedom and public trust given it. But from the earliest
days of our history, this free society, dependent as it is for its
survival upon a vigorous free press, has tolerated some abuse. In
1799, James Madison made the point in quoting (and adopting) John
Marshall's answer to Talleyrand's complaints about American
newspapers, American State Papers, 2 Foreign Relations 196 (U.S.
Cong. 1832):
"'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.'"
6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed.1906)
(emphasis in original).
This Court has recognized this imperative:
"[T]o insure the ascertainment and publication of the truth
about public affairs, it is essential that the First Amendment
Page 403 U. S. 52
protect some erroneous publications as well as true ones."
St. Amant v. Thompson, 390 U.
S. 727,
390 U. S. 732
(1968). We thus hold that a libel action, as here, by a private
individual against a licensed radio station for a defamatory
falsehood in a newscast relating to his involvement in an event of
public or general concern may be sustained only upon clear and
convincing proof that the defamatory falsehood was published with
knowledge that it was false or with reckless disregard of whether
it was false or not. [
Footnote
18] Calculated falsehood, of course, falls outside "the
fruitful exercise of the right of free speech."
Garrison v.
Louisiana, 379 U. S. 64,
379 U. S. 75
(1964).
Our Brothers HARLAN and MARSHALL reject the "knowing or reckless
falsehood standard" in favor of a test that would require, at
least, that the person defamed establish that the publisher
negligently failed to ascertain the truth of his story; they would
also limit any recovery to "actual" damages. For the reasons we
have stated, the negligence standard gives insufficient breathing
space to First Amendment values. Limiting recovery to actual
damages has the same defects. In the first instance, that standard,
too, leaves the First Amendment insufficient elbow room within
which to function. It is not simply the possibility of a judgment
for damages that results in self-censorship. The very possibility
of having to engage in litigation, an expensive and protracted
process,
Page 403 U. S. 53
is threat enough to cause discussion and debate to "steer far
wider of the unlawful zone," thereby keeping protected discussion
from public cognizance.
Speiser v. Randall, 357 U.S. at
357 U. S. 526.
Cf. Blonder-Tongue Laboratories, Inc. v. University of Illinois
Foundation, 402 U. S. 313,
402 U. S.
334-339 (1971). Too, a small newspaper suffers equally
from a substantial damage award, whether the label of the award be
"actual" or "punitive." The real thrust of Brothers HARLAN's and
MARSHALL's position, however, is their assertion that their
proposal will not "constitutionalize" the factfinding process. But
this clearly is not the way their test would work in practice.
Their approach means only that factfinding will shift from an
inquiry into whether the defamatory statements were knowingly or
recklessly uttered to the inquiry whether they were negligently
uttered, and if so, to an inquiry whether plaintiff suffered
"actual" damages. This latter inquiry will involve judges even more
deeply in factfinding. Would the mere announcement by a state
legislature that embarrassment and pain and suffering are
measurable actual losses mean that such damages may be awarded in
libel actions? No matter how the problem is approached, this Court
would ultimately have to fashion constitutional definitions of
"negligence" and of "actual damages."
Aside from these particularized considerations, we have
repeatedly recognized that courts may not avoid an excursion into
factfinding in this area simply because it is time-consuming or
difficult. We stated in
Pennekamp v. Florida, 328 U.
S. 331,
328 U. S. 335
(1946), that:
"The Constitution has imposed upon this Court final authority to
determine the meaning and application of those words of that
instrument which require interpretation to resolve judicial issues.
With that responsibility, we are compelled to examine for ourselves
the statements in issue and the circumstances
Page 403 U. S. 54
under which they were made to see whether or not they . . . are
of a character which the principles of the First Amendment, as
adopted by the Due Process Clause of the Fourteenth Amendment,
protect."
(Footnote omitted.) Clearly, then, this Court has an "obligation
to test challenged judgments against the guarantees of the First
and Fourteenth Amendments," and, in doing so, "this Court cannot
avoid making an independent constitutional judgment on the facts of
the case."
Jacobellis v. Ohio, 378 U.
S. 184,
378 U. S. 190
(1964). The simple fact is that First Amendment questions of
"constitutional fact" compel this Court's
de novo review.
See Edwards v. South Carolina, 372 U.
S. 229,
372 U. S. 235
(1963);
Blackburn v. Alabama, 361 U.
S. 199,
361 U. S. 205
n. 5 (1960).
VI
Petitioner argues that the instructions on punitive damages
either cured or rendered harmless the instructions permitting an
award of general damages based on a finding of failure of WIP to
exercise reasonable care. We have doubts of the merits of the
premise, [
Footnote 19] but
even
Page 403 U. S. 55
assuming that instructions were given satisfying the standard of
knowing or reckless falsity, the evidence was insufficient to
sustain an award for that petitioner under that standard. In these
cases, our
"duty is not limited to the elaboration of constitutional
principles; we must also, in proper cases, review the evidence to
make certain that those principles have been constitutionally
applied."
New York Times Co. v. Sullivan, 376 U.S. at
376 U. S. 285.
Our independent analysis of the record leads us to agree with the
Court of Appeals that none of the proofs, considered either singly
or cumulatively, satisfies the constitutional standard with the
convincing clarity necessary to raise a jury question whether the
defamatory falsehoods were broadcast with knowledge that they were
false or with reckless disregard of whether they were false or
not.
The evidence most strongly supporting petitioner is that
concerning his visit to WIP's studio where a part-time newscaster
hung up the telephone when petitioner disputed the newscaster's
statement that the District Attorney had characterized petitioner's
magazines as obscene. This contact occurred, however, after all but
one of the second series of broadcasts had been aired. The incident
has no probative value insofar as it bears on petitioner's case as
to the first series of broadcasts. That portion of petitioner's
case was based upon the omission from the first two broadcasts at 6
and 6:30 p.m. on October 4 of the word "alleged" preceding a
characterization of the magazines distributed by petitioner. But
that omission was corrected with the 8 p.m. broadcast, and was not
repeated in the five broadcasts that followed. And we agree with
the analysis of the Court of Appeals that led that court, and leads
us, to conclude that the episode failed to provide evidence
satisfying the
New York Times standard insofar as it bore
on petitioner's
Page 403 U. S. 56
case based upon the broadcasts on and after October 21
concerning petitioner's lawsuit:
"Only one broadcast took place after this conversation. It is
attacked on the ground that it contains an inaccurate statement
concerning plaintiff's injunction action in that it Stated that the
district attorney considered plaintiff's publications to be smut
and immoral literature. The transcript of the testimony shows that
plaintiff's own attorney, when questioning defendant'
representative concerning the allegedly defamatory portion of the
last broadcast, said that he was not questioning its 'accuracy.'
Furthermore, his examination of the same witness brought out that
defendant's representative confirmed the story with the judge
involved before the broadcast was made. We think that the episode
described failed to provide evidence of actual malice with the
requisite convincing clarity to create a jury issue under federal
standards."
415 F.2d at 897.
Petitioner argues finally that WIP's failure to communicate with
him to learn his side of the case and to obtain a copy of the
magazine for examination, sufficed to support a verdict under the
New York Times standard. But our
"cases are clear that reckless conduct is not measured by
whether a reasonably prudent man would have published, or would
have investigated before publishing. There must be sufficient
evidence to permit the conclusion that the defendant in fact,
entertained serious doubts as to the truth of his publication."
St. Amant v. Thompson, 390 U.S. at
390 U. S. 731.
Respondent here relied on information supplied by police officials.
Following petitioner's complaint about the accuracy of the
broadcasts, WIP checked its last report with the judge who presided
in the case. While we may assume that the District Court correctly
held to be defamatory
Page 403 U. S. 57
respondent's characterizations of petitioner's business as "the
smut literature racket," and of those engaged in it as "girlie-book
peddlers," there is no evidence in the record to support a
conclusion that respondent "in fact entertained serious doubts as
to the truth" of its reports.
Affirmed.
MR. JUSTICE Douglas took no part in the consideration or
decision of this case.
[
Footnote 1]
See, e.g., Associated Press v. Walker, 388 U.
S. 130 (1967) (retired Army general against a wire
service);
Curtis Publishing Co. v. Butts, 388 U.
S. 130 (1967) (former football coach against publisher
of magazine);
Beckley Newspapers Corp. v. Hanks,
389 U. S. 81 (1967)
(court clerk against newspaper);
Greenbelt Publishing Assn. v.
Bresler, 398 U. S. 6 (1970)
(state representative and real estate developer against publisher
of newspaper);
Ocala Star-Banner Co. v. Damron,
401 U. S. 295
(1971) (defeated candidate for tax assessor against publisher of
newspaper);
Monitor Patriot Co. v. Roy, 401 U.
S. 265 (1971) (candidate for United States Senate
against publisher of newspaper);
Time, Inc. v. Pape,
401 U. S. 279
(1971) (police official against publisher of magazine). However,
Rosenblatt v. Baer, 383 U. S. 75
(1966), involved an action against a newspaper columnist by a
former county recreation area supervisor;
St. Amant v.
Thompson, 390 U. S. 727
(1968), involved an action of a deputy sheriff against a defeated
candidate for the United States Senate; and
Linn v. Plant Guard
Workers, 383 U. S. 53
(1966), involved an action by an official of an employer against a
labor union.
Garrison v. Louisiana, 379 U. S.
64 (1964), held that the
New York Times
standard measured also the constitutional restriction upon state
power to impose criminal sanctions for criticism of the official
conduct of public officials. The
Times standard of proof
has also been required to support the dismissal of a public school
teacher based on false statements made by the teacher in discussing
issues of public importance.
Pickering v. Board of
Education, 391 U. S. 563
(1968). The same test was applied to suits for invasion of privacy
based on false statements where, again, a matter of public interest
was involved.
Time, Inc. v. Hill, 385 U.
S. 374 (1967). The opinion in that case expressly
reserved the question presented here -- whether the test applied in
a libel action brought by a private individual.
Id. at
385 U. S.
391.
[
Footnote 2]
This term is from Warren & Brandeis, The Right to Privacy, 4
Harv.L.Rev.193, 214 (1890). Our discussion of matters of "public or
general interest" appears in
403 U. S.
infra of this opinion.
[
Footnote 3]
Petitioner does not question that the First Amendment guarantees
of freedom of speech and freedom of the press apply to respondent's
newscasts.
[
Footnote 4]
At trial, Captain Ferguson testified that his definition of
obscenity was "anytime the private parts is showing of the female
or the private parts is shown of males."
[
Footnote 5]
Several more newsstand operators were arrested between October 1
and October 4.
[
Footnote 6]
The record neither confirms nor refutes petitioner's contention
that his arrest was fortuitous. Nor does the record reflect whether
or not petitioner's magazines were the subject either of the
original citizens' complaints or of the initial police
purchases.
[
Footnote 7]
The complaint named as defendants the publishers of two
newspapers, a television station, the city of Philadelphia, and the
district attorney, but not respondent WIP. The plaintiffs were
petitioner, the partnership of himself and his wife which carried
on the business, and the publisher of the nudist magazines that he
distributed.
[
Footnote 8]
The text of the final broadcast read as follows:
"U.S. District Judge John Lord told WIP News just before air
time that it may be another week before he will be able to render a
decision as to whether he has jurisdiction in the case of two
publishers and a distributor who wish to restrain the D.A.'s
office, the police chief, a TV station and the Bulletin for either
making alleged raids of their publications, considered smut and
immoral literature by the defendants named, or publicizing that
they are in that category. Judge Lord then will be in a position to
rule on injunction proceedings asked by the publishers and
distributor claiming the loss of business in their operations."
[
Footnote 9]
The reference here, of course, is to common law "malice," not to
the constitutional standard of
New York Times Co. v. Sullivan,
supra. See n
18,
infra.
[
Footnote 10]
Pa.Stat.Ann., Tit. 12, § 1584a (Supp. 1971) provides:
"(1) In an action for defamation, the plaintiff has the burden
of proving, when the issue is properly raised: "
"(a) The defamatory character of the communication;"
"(b) Its publication by the defendant;"
"(c) Its application to the plaintiff;"
"(d) The recipient's understanding of its defamatory
meaning;"
"(e) The recipient's understanding of it as intended to be
applied to the plaintiff;"
"(f) Special harm resulting to the plaintiff from its
publication;"
"(g) Abuse of a conditionally privileged occasion."
"(2) In an action for defamation, the defendant has the burden
of proving, when the issue is properly raised: "
"(a) The truth of the defamatory communication;"
"(b) The privileged character of the occasion on which it was
published;"
"(c) The character of the subject matter of defamatory comment
as of public concern."
See Restatement of Torts § 613.
[
Footnote 11]
For example, the public's interest in the provocative speech
that was made during the tense episode on the campus of the
University of Mississippi would certainly have been the same in
Associated Press v. Walker, n 1,
supra, if the speaker had been an anonymous
student and not a well known retired Army general. Walker also
illustrates another anomaly of focusing analysis on the public
"figure" or public "official" status of the individual involved.
General Walker's fame stemmed from events completely unconnected
with the episode in Mississippi. It seems particularly
unsatisfactory to determine the extent of First Amendment
protection on the basis of factors completely unrelated to the
newsworthy events being reported.
See also Greenbelt Publishing
Assn. v. Bresler, 398 U. S. 6
(1970).
[
Footnote 12]
We are not to be understood as implying that no area of a
person's activities falls outside the area of public or general
interest. We expressly leave open the question of what
constitutional standard of proof, if any, controls the enforcement
of state libel laws for defamatory falsehoods published or
broadcast by news media about a person's activities not within the
area of public or general interest.
We also intimate no view on the extent of constitutional
protection, if any, for purely commercial communications made in
the course of business.
See Valentine v. Chrestenen,
316 U. S. 52
(1942).
Compare Breard v. Alexandria, 341 U.
S. 622 (1951),
with Martin v. Struthers,
319 U. S. 141
(1943).
But see New York Times Co. v. Sullivan, 376 U.S.
at
376 U. S.
265-266;
Linn v. Plant Guard Workers,
383 U. S. 53
(1966).
[
Footnote 13]
Our Brother WHITE states in his opinion:
"[T]he First Amendment gives . . . a privilege to report . . .
the official actions of public servants in full detail, with no
requirement that . . . the privacy of an individual involved in . .
. the official action be spared from public view."
Post at
403 U. S. 62.
This seems very broad. It implies a privilege to report, for
example, such confidential records as those of juvenile court
proceedings.
[
Footnote 14]
See United Medical Laboratories, Inc. v. Columbia
Broadcasting System, Inc., 404 F.2d 706 (CA9 1968),
cert.
denied, 394 U.S. 921 (1969);
Time, Inc. v. McLaney,
406 F.2d 565 (CA5),
cert. denied, 395 U.S. 922 (1969);
Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 861 n. 4,
and cases cited therein (CA5 1970).
See generally Cohen, A
New Niche for the Fault Principle: A Forthcoming Newsworthiness
Privilege in Libel Cases?, 18 U.C.L.A.L.Rev. 371 (1970); Kalven,
The Reasonable Man and the First Amendment:
Hill, Butts,
and
Walker, 1967 Sup.Ct.Rev. 267; Note, Public Official
and Actual Malice Standards: The Evolution of
New York Times
Co. v. Sullivan, 56 Iowa L.Rev. 393, 398-400 (1970); Note, The
Scope of First Amendment Protection for Good-Faith Defamatory
Error, 75 Yale L.J. 642 (1966).
[
Footnote 15]
Some States have adopted retraction statutes or right-of-reply
statutes.
See Donnelly, The Right of Reply: An Alternative
to an Action for Libel, 34 Va.L.Rev. 867 (1948); Note, Vindication
of the Reputation of a Public Official, 80 Harv.L.Rev. 1730 (1967).
Cf. Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367 (1969).
One writer, in arguing that the First Amendment itself should be
read to guarantee a right of access to the media not limited to a
right to respond to defamatory falsehoods, has suggested several
ways the law might encourage public discussion. Barron, Access to
the Press -- A New First Amendment Right, 80 Harv.L.Rev. 1641,
1666-1678 (1967). It is important to recognize that the private
individual often desires press exposure either for himself, his
ideas, or his causes. Constitutional adjudication must take into
account the individual's interest in access to the press, as well
as the individual's interest in preserving his reputation, even
though libel actions, by their nature, encourage a narrow view of
the individual's interest, since they focus only on situations
where the individual has been harmed by undesired press attention.
A constitutional rule that deters the press from covering the ideas
or activities of the private individual thus conceives the
individual's interest too narrowly.
[
Footnote 16]
This is not the less true because the area of public concern in
the cases of candidates for public office and of elected public
officials is broad.
See Monitor Patriot Co. v. Roy,
401 U. S. 265
(1971).
[
Footnote 17]
Our Brothers HARLAN and MARSHALL would not limit the application
of the First Amendment to private libels involving issues of
general or public interest. They would hold that the Amendment
covers all private libels, at least where state law permits the
defense of truth. The Court has not yet had occasion to consider
the impact of the First Amendment on the application of state libel
laws to libels where no issue of general or public interest is
involved.
See n 1,
supra. However,
Griswold v. Connecticut,
381 U. S. 479
(1965), recognized a constitutional right to privacy, and at least
one commentator has discussed the relation of that right to the
First Amendment. Emerson,
supra, at 544-562. Since all
agree that this case involves an issue of public or general
interest, we have no occasion to discuss that relationship.
See n 12,
supra. We do not, however, share the doubts of our
Brothers HARLAN and MARSHALL that courts would be unable to
identify interests in privacy and dignity. The task may be
difficult, but not more so than other tasks in this field.
[
Footnote 18]
At oral argument, petitioner argued that
"the little man can't show actual malice. How can George
Rosenbloom show that there was actual malice in Metromedia? They
never heard of him before."
Tr. of Oral Arg., Dec. 8, 1970, p. 39. But ill will toward the
plaintiff, or bad motives, are not elements of the
New York
Times standard. That standard requires only that the plaintiff
prove knowing or reckless falsity. That burden, and no more, is the
plaintiff's whether "public official," "public figure," or "little
man." It may be that jury instructions that are couched only in
terms of knowing or reckless falsity, and omit reference to "actual
malice," would further a proper application of the
New York
Times standard to the evidence.
[
Footnote 19]
The instructions authorized an award of punitive damages upon a
finding that a falsehood
"arose from a bad motive or . . . that it was published with
reckless indifference to the truth . . . punitive damages are
awarded as a deterrent from future conduct of the same sort."
App. 333a. The summation of petitioner's counsel conceded that
respondent harbored no ill-will toward petitioner, but, following
the suggestion of the instructions that punitive damages are
"'smart' money," App. 313a, argued that they should be assessed
because
"[respondent] must be careful the way they impart news
information and you can punish them if they weren't because you
could say that was malicious."
Ibid. This was an obvious invitation based on the
instructions to award punitive damages for carelessness. Thus, the
jury was allowed, and even encouraged, to find malice and award
punitive damages merely on the basis of negligence and bad
motive.
MR. JUSTICE BLACK, concurring in the judgment.
I concur in the judgment of the Court for the reasons stated in
my concurring opinion in
New York Times Co. v. Sullivan,
376 U. S. 254,
376 U. S. 293
(1964), in my concurring and dissenting opinion in
Curtis
Publishing Co. v. Butts, 388 U. S. 130,
388 U. S. 170
(1967), and in MR. JUSTICE DOUGLAS' concurring opinion in
Garrison v. Louisiana, 379 U. S. 64,
379 U. S. 80
(1964). I agree, of course, that First Amendment protection extends
to
"all discussion and communication involving matters of public or
general concern, without regard to whether the persons involved are
famous or anonymous."
Ante at
403 U. S. 44.
However, in my view, the First Amendment does not permit the
recovery of libel judgments against the news media even when
statement are broadcast with knowledge they are false. As I stated
in
Curtis Publishing Co. v. Butts, supra,
"[I]t is time for this Court to abandon
New York Times Co.
v. Sullivan and adopt the rule to the effect that the First
Amendment was intended to leave the press free from the harassment
of libel judgments."
Id. at
388 U. S.
172.
MR. JUSTICE WHITE, concurring in the judgment.
I
Under existing law, the First Amendment is deemed to permit
recoveries for damaging falsehoods published
Page 403 U. S. 58
about public officials or public figures only if the defamation
is knowingly or recklessly false. But, until today, the First
Amendment has not been thought to prevent citizens who are neither
public officials nor public figures from recovering damages for
defamation upon proving publication of a false statement injurious
to their reputation. There has been no necessity to show deliberate
falsehood, recklessness, or even negligence.
The Court has now decided that the First Amendment requires
further restrictions on state defamation laws. MR. JUSTICE BRENNAN
and two other members of the Court would require proof of knowing
or reckless misrepresentation of the facts whenever the publication
concerns a subject of legitimate public interest, even though the
target is a "private" citizen. Only residual areas would remain in
which a lower degree of proof would obtain.
Three other members of the Court also agree that private
reputation has enjoyed too much protection, and the media too
little. But, in the interest of protecting reputation, they would
not roll back State laws so far. They would interpret the First
Amendment as proscribing liability without fault, and would equate
non-negligent falsehood with faultless conduct. The burden of the
damaging lie would be shifted from the media to the private citizen
unless the latter could prove negligence or some higher degree of
fault. They would also drastically limit the authority of the
States to award compensatory and punitive damages for injury to
reputation.
MR. JUSTICE BLACK, consistently with the views that he and MR.
JUSTICE DOUGLAS have long held, finds no room in the First
Amendment for any defamation recovery whatsoever.
Given this spectrum of proposed restrictions on state defamation
laws, and assuming that MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS
will continue in future cases
Page 403 U. S. 59
to support the severest of the restrictions, it would seem that
at least five members of the Court would support each of the
following rules:
For public officers and public figures to recover for damage to
their reputations for libelous falsehoods, they must prove either
knowing or reckless disregard of the truth. All other plaintiffs
must prove at least negligent falsehood, but if the publication
about them was in an area of legitimate public interest, then they
too must prove deliberate or reckless error. In all actions for
libel or slander, actual damages must be proved, and awards of
punitive damages will be strictly limited.
II
For myself, I cannot join any of the opinions filed in this
case. Each of them decides broader constitutional issues and
displaces more state libel law than is necessary for the decision
in this case. As I have said, MR. JUSTICE BRENNAN would extend the
privilege enunciated in
New York Times Co. v. Sullivan,
376 U. S. 254
(1964), to publications upon any "subject of public or general
interest."
See ante at
403 U. S. 43. He
would thereby extend the constitutional protection to false and
damaging, but nonmalicious, publications about such matters as the
health and environmental hazards of widely used manufactured
products, the mental and emotional stability of executives of
business establishments, and the racial and religious prejudices of
many groups and individuals. All of these are, of course, subjects
of real concern, and arguments for placing them within the scope of
New York Times are by no means frivolous.
For MR. JUSTICE MARSHALL and MR. JUSTICE HARLAN, MR. JUSTICE
BRENNAN's opinion is both too severe and too limited. They would
make more sweeping incursions into state tort law, but purportedly
with less destructive weapons. They would permit suit by some
plaintiffs
Page 403 U. S. 60
barred under MR. JUSTICE BRENNAN's opinion, but would require
all plaintiffs to prove at least negligence before any recovery
would be allowed.
I prefer at this juncture not to proceed on such a broad front.
I am quite sure that
New York Times Co. v. Sullivan was
the wiser course, but I am unaware that state libel laws with
respect to private citizens have proved a hazard to the existence
or operations of the communications industry in this country. Some
members of the Court seem haunted by fears of self-censorship by
the press and of damage judgments that will threaten its financial
health. But technology has immeasurably increased the power of the
press to do both good and evil. Vast communication combines have
been built into profitable ventures. My interest is not in
protecting the treasuries of communicators, but in implementing the
First Amendment by insuring that effective communication which is
essential to the continued functioning of our free society. I am
not aware that self-censorship has caused the press to tread too
gingerly in reporting "news" concerning private citizens and
private affairs, or that the reputation of private citizens has
received inordinate protection from falsehood. I am not convinced
that we must fashion a constitutional rule protecting a whole range
of damaging falsehoods, and so shift the burden from those who
publish to those who are injured.
I say this with considerable deference, since all my Brethren
have contrary views. But I would not nullify a major part of state
libel law until we have given the matter the most thorough
consideration, and can articulate some solid First Amendment
grounds based on experience and our present condition. As it is,
today's experiment rests almost entirely on theoretical grounds,
and represents a purely intellectual derivation from what are
thought to be important principles of tort
Page 403 U. S. 61
law as viewed in the light of the primacy of the written and
spoken word.
This case lends itself to more limited adjudication.
New
York Times Co. v. Sullivan itself made clear that discussion
of the official actions of public servants such as the police is
constitutionally privileged. "The right of free public discussion
of the stewardship of public officials" is, in the language of that
case, "a fundamental principle of the American form of government."
376 U.S. at
376 U. S. 275.
Discussion of the conduct of public officials cannot, however, be
subjected to artificial limitations designed to protect others
involved in an episode with officials from unfavorable publicity.
Such limitations would deprive the public of full information about
the official action that took place. In the present case, for
example, the public would learn nothing if publication only of the
fact that the police made an arrest were permitted; it is also
necessary that the grounds for the arrest and, in many
circumstances, the identity of the person arrested, be stated. In
short, it is rarely informative for a newspaper or broadcaster to
state merely that officials acted unless he also states the reasons
for their action and the persons whom their action affected.
Nor can
New York Times be read as permitting
publications that invade the privacy or injure the reputations of
officials, but forbidding those that invade the privacy or injure
the reputations of private citizens against whom official action is
directed.
New York Times gives the broadcasting media and
the press the right not only to censure and criticize officials,
but also to praise them, and the concomitant right to censure and
criticize their adversaries. To extend constitutional protection to
criticism only of officials would be to authorize precisely that
sort of thought control that the First Amendment forbids government
to exercise.
Page 403 U. S. 62
I would accordingly hold that, in defamation actions, absent
actual malice as defined in
New York Times Co. v.
Sullivan, the First Amendment gives the press and the
broadcast media a privilege to report and comment upon the official
actions of public servants in full detail, with no requirement that
the reputation or the privacy of an individual involved in or
affected by the official action be spared from public view. Since
respondent Metromedia did nothing more in the instant case, I join
in holding its broadcasts privileged. I would not, however,
adjudicate cases not now before the Court.
MR. JUSTICE HARLAN, dissenting.
The very facts of this case demonstrate that uncritical
acceptance of the Pennsylvania libel law here involved would be
inconsistent with those important First and Fourteenth Amendment
values we first treated with in an analogous context in
New
York Times Co. v. Sullivan, 376 U. S. 254
(1964). However, as the plurality opinion implicitly recognizes,
only an undiscriminating assessment of those values would lead us
to extend the
New York Times rule in full force to all
purely private libels. My Brother BRENNAN's opinion would resolve
the dilemma by distinguishing those private libels that arise out
of events found to be of "public or general concern" from those
that do not, and subjecting the former to full-scale application of
the
New York Times rule.
For the reasons set forth in Part I of my Brother MARSHALL's
dissent, I cannot agree to such a solution. As he so well
demonstrates, the principal failing of the plurality opinion is its
inadequate appreciation of the limitations imposed by the legal
process in accommodating the tension between state libel laws and
the federal constitutional protection given to freedom of speech
and press.
Page 403 U. S. 63
Once the evident need to balance the values underlying each is
perceived, it might seem, purely as an abstract matter, that the
most utilitarian approach would be to scrutinize carefully every
jury verdict in every libel case, in order to ascertain whether the
final judgment leaves fully protected whatever First Amendment
values [
Footnote 2/1] transcend the
legitimate state interest in protecting the particular plaintiff
who prevailed. This seems to be what is done in the plurality
opinion. But we did not embrace this technique in
New York
Times, supra. Instead, as my Brother MARSHALL observes, we
there announced a rule of general application, not ordinarily
dependent for its implementation upon a case-by-case examination of
trial court verdicts.
See also my dissent in
Time,
Inc. v. Pape, 401 U. S. 279,
401 U. S. 293
(1971). Nor do I perceive any developments in the seven years since
we decided
New York Times, supra, that suggest our
original method should now be abandoned. At least where we can
discern generally applicable rules that should balance with fair
precision the competing interests at stake, such rules should be
preferred to the plurality's approach both in order to preserve a
measure of order and predictability in the law that must govern the
daily conduct of affairs and to avoid subjecting the press to
judicial second-guessing of the newsworthiness of each item they
print. Consequently, I fully concur in Part I of MR. JUSTICE
MARSHALL's dissent.
Page 403 U. S. 64
Further, I largely agree with the alternative proposals of that
dissent. I, too, think that, when dealing with private libel, the
States should be free to define for themselves the applicable
standard of care so long as they do not impose liability without
fault; that a showing of actual damage should be a requisite to
recovery for libel; and that it is impermissible, given the
substantial constitutional values involved, to fail to confine the
amount of jury verdicts in such cases within any ascertainable
limits. However, my reasons for so concluding are somewhat
different than his, and I therefore reach a different result than
he does with respect to the tolerable limits of punitive
damages.
I
I think we all agree on certain core propositions. First, as a
general matter, the States have a perfectly legitimate interest,
exercised in a variety of ways, in redressing and preventing
careless conduct, no matter who is responsible for it, that
inflicts actual, measurable injury upon individual citizens.
Secondly, there is no identifiable value worthy of constitutional
protection in the publication of falsehoods. Third, although libel
law provides that truth is a complete defense, that principle,
standing alone, is insufficient to satisfy the constitutional
interest in freedom of speech and press. For we have recognized
that it is inevitable that there will be "some error in the
situation presented in free debate,"
Time, Inc. v. Hill,
385 U. S. 374,
385 U. S. 406
(1967) (opinion of this writer), a process that needs "breathing
space,"
NAACP v. Button, 371 U. S. 415,
371 U. S. 433
(1963), to flourish, and that "putting to the preexisting
prejudices of a jury the determination of what is
true' may
effectively institute a system of censorship." Time, Inc. v.
Hill, supra, at 385 U. S.
406.
Moreover, any system that punishes certain speech is likely to
induce self-censorship by those who would otherwise
Page 403 U. S. 65
exercise their constitutional freedom. Given the
constitutionally protected interest in unfettered speech, it
requires an identifiable, countervailing state interest, consistent
with First Amendment values, to justify a regulatory scheme that
produces such results. And, because the presence of such values
dictates closer scrutiny of this aspect of state tort law than the
Fourteenth Amendment would otherwise command, it may well be that
certain rules, impervious to constitutional attack when applied to
ordinary human conduct, may have to be altered or abandoned where
used to regulate speech. Finally, as determined in
New York
Times, the constitutional interest in tolerance of falsehood,
as well as the need to adjust competing societal interests,
prohibit, at a minimum, the imposition of liability without
fault.
The precise standard of care necessary to achieve these goals
is, however, a matter of dispute, as is the range of penalties a
State may prescribe for a breach of that standard. In analyzing
these problems, it is necessary to begin with a general analytical
framework that defines those competing interests that must be
reconciled. My Brother MARSHALL's opinion, I think, dwells too
lightly upon the nature of the legitimate countervailing interests
promoted by the State's libel law, and, as a result, overstates the
case against punitive damages. Because we deal with a set of legal
rules that treat truth as a complete defense, it strikes, I think,
somewhat wide of the mark to treat the State's interest as one of
protecting reputations from "unjustified invasion."
Post
at
403 U. S. 78. By
hypothesis, the respondent here was free to reveal any true facts
about petitioner's "obscure private life." [
Footnote 2/2]
Page 403 U. S. 66
Given the defense of truth, it is my judgment that, in order to
assure that it promotes purposes consistent with First Amendment
values, the legitimate function of libel law must be understood as
that of compensating individuals for actual, measurable harm caused
by the conduct of others. This can best be demonstrated by
postulating a law that subjects publishers to jury verdicts for
falsehoods that have done the plaintiff no harm. In my view, such a
rule can only serve a purpose antithetical to those of the First
Amendment. It penalizes speech not to redress or avoid the
infliction of harm, but only to deter the press from publishing
material regarding private behavior that turns out to be false
simply because of its falsity. This the First Amendment will not
tolerate. Where the State cannot point to any tangible danger, even
knowingly erroneous publication is entitled to constitutional
protection because of the interest in avoiding an inquiry into the
mere truth or falsity of speech. Moreover, such a scheme would
impose a burden on speaking not generally placed upon
constitutionally unprotected conduct -- the payment of private
fines for conduct which, although not conformed to established
limits of care, causes no harm in fact.
Conversely, I think that, where the purpose and effect of the
law are to redress actual and measurable injury to private
individuals that was reasonably foreseeable as a result of the
publication, there is no necessary conflict with the values of
freedom of speech. Just as an automobile, negligently driven, can
cost a person his physical and mental wellbeing and the fruits of
his labor, so can a printing press, negligently set. While the
First Amendment protects the press from the imposition of special
liabilities upon it,
"[t]o exempt a publisher, because of the nature of his calling,
from an imposition generally exacted from other members of the
community would be to extend a protection not required by the
constitutional
Page 403 U. S. 67
guarantee."
Curtis Publishing Co. v. Butts, 388 U.
S. 130,
388 U. S. 160
(1967) (opinion of this writer). A business
"is not immune from regulation because it is an agency of the
press. The publisher of a newspaper has no special immunity from
the application of general laws. He has no special privilege to
invade the rights and liberties of others."
Associated Press v. NLRB, 301 U.
S. 103,
301 U. S.
132-133 (1937). That the damage has been inflicted by
words, rather than other instrumentalities, cannot insulate it from
liability. States may legitimately be required to use finer
regulatory tools where dealing with "speech," but they are not
wholly disabled from exacting compensation for its measurable
adverse consequences. If this is not so, it is difficult to
understand why governments may, for example, proscribe "misleading"
advertising practices or specify what is "true" in the
dissemination of consumer credit advertisements.
Nor does this interest in compensating victims of harmful
conduct somehow disappear when the damages inflicted are great. So
long as the effect of the law of libel is simply to make publishers
pay for the harm they cause, and the standard of care required is
appropriately adjusted to take account of the special
countervailing interests in an open exchange of ideas, the fact
that this may involve the payment of substantial sums cannot
plausibly be said to raise serious First Amendment problems. If a
newspaper refused to pay its bills because to do so would put it
out of business, would the First Amendment dictate that this be
treated as a partial or complete defense? If an automobile carrying
a newsman to the scene of a history-making event ran over a
pedestrian, would the size of the verdict, if based upon generally
applicable tort law principles, have to be assessed against the
probability that it would deter broadcasters from news gathering
before it could pass muster under the First Amendment?
Page 403 U. S. 68
However, without foreclosing the possibility that other limiting
principles may be surfaced by subsequent experience, I do think
that, since we are dealing, by hypothesis, with infliction of harm
through the exercise of freedom of speech and the press to which
the Constitution gives explicit protection, recoverable damages
must be limited to those consequences of the publication which are
reasonably foreseeable. The usual tort rule seems to be that, once
some foreseeable injury has been inflicted, the negligent defendant
must compensate for all damages he proximately caused in fact, no
matter how peculiar were the circumstances of the particular
plaintiff involved. W. Prosser, The Law of Torts § 50 (3d ed.1964).
However, our cases establish, I think, that, unless he has
knowledge to the contrary, a speaker is entitled to presume that he
is addressing an audience that is not especially susceptible to
distress at the specter of open, uninhibited, robust speech.
Cohen v. California, ante, p.
403 U. S. 15.
See also Brandenburg v. Ohio, 395 U.
S. 444 (1969);
Butler v. Michigan, 352 U.
S. 380 (1957). Thus, I think the speaker should be free
from a duty to compensate for actual harm inflicted by his
falsehoods where the defamation would not have caused such harm to
a person of average sensibilities unless, of course, the speaker
knew that his statements were made concerning an unusually
sensitive person. In short, I think the First Amendment does
protect generally against the possibility of self-censorship in
order to avoid unwitting affronts to the frail and the queasy.
II
Of course, it does not follow that, so long as libel law
performs the same compensatory function as civil law generally, it
is necessarily legitimate in all its various applications. The
presence of First Amendment values means that the State can be
compelled to utilize finer,
Page 403 U. S. 69
more discriminating instruments of regulation where necessary to
give more careful protection to these countervailing interests.
New York Times, supra, and
Curtis Publishing Co.,
supra, established that, where the injured party is a "public
figure" or a "public official," the interest in freedom of speech
dictates that the States forgo their interest in compensating for
actual harm, even upon a basis generally applicable to all members
of society, unless the plaintiff can show that the injurious
publication was false and was made "with
actual malice' -- that
is, with knowledge that it was false or with reckless disregard of
whether it was false or not." New York Times, supra, at
376 U. S. 280.
Tacitly recognizing that it would unduly sacrifice the operative
legitimate state interests to extend this rule to all cases where
the injured party is simply a private individual, the plurality
opinion would nevertheless apply it where the publication concerned
such a person's "involvement in an event of public or general
concern." Ante at
403 U. S. 52. I would not overrule New York
Times or Curtis Publishing Co., and I do agree, as
indicated above, that making liability turn on simple falsity in
the purely private libel area is not constitutionally permissible.
But I would not construe the Federal Constitution to require that
the States adhere to a standard other than that of reasonable care
where the plaintiff is an ordinary citizen.
My principal concern with the plurality's view, of course, is
that voiced by my Brother MARSHALL. However, even if this objection
were not tenable, unlike the plurality, I do think there is a
difference, relevant to the interests here involved, between the
public and the private plaintiff, as our cases have defined these
categories, and that maintaining a constitutional distinction
between them is at least as likely to protect true First Amendment
concerns as one that eradicates such a line and substitutes for it
a distinction between matters we think are of true social
significance and those we think are not.
Page 403 U. S. 70
To begin, it does no violence, in my judgment, to the value of
freedom of speech and press to impose a duty of reasonable care
upon those who would exercise these freedoms. I do not think it can
be gainsaid that the States have a substantial interest in
encouraging speakers to carefully seek the truth before they
communicate, as well as in compensating persons actually harmed by
false descriptions of their personal behavior. Additionally, the
burden of acting reasonably in taking action that may produce
adverse consequences for others is one generally placed upon all in
our society. Thus, history itself belies the argument that a
speaker must somehow be freed of the ordinary constraints of acting
with reasonable care in order to contribute to the public good
while, for example, doctors, accountants, and architects have
constantly performed within such bounds.
This does not mean that I do not agree with the rule of
New
York Times, supra, but only that I deem it inapplicable here.
That rule was not, I think, born solely of a desire to free speech
that would otherwise have been stifled by overly restrictive rules,
but also rested upon a determination that the countervailing state
interests, described above, were not fully applicable where the
subject of the falsehood was a public official or a public figure.
For me, it does seem quite clear that the public person has a
greater likelihood of securing access to channels of communication
sufficient to rebut falsehoods concerning him than do private
individuals in this country who do not toil in the public
spotlight. Similarly, our willingness to assume that public
personalities are more impervious to criticism, and may be held to
have run the risk of publicly circulated falsehoods concerning
them, does not rest solely upon an empirical assertion of fact, but
also upon a belief that, in our political system, the individual
speaker is entitled to act upon such an assumption if our
institutions are to be held
Page 403 U. S. 71
up, as they should be, to constant scrutiny. And, at least as to
the "public official," it seems to be universally the case that he
is entitled to an absolute immunity for what he may utter in
response to the charges of others. Where such factors are present,
the need to provide monetary compensation for defamation appears a
good deal more attenuated. Finally, in light of the plurality
opinion's somewhat extravagant delineation of the public interest
involved in the dissemination of information about nonpublic
persons, it bears emphasizing that a primary rationale for
extending the
New York Times rule to public figures was
the desire to reflect, in the constitutional balance, the fact
that, "in this country, the distinctions between governmental and
private sectors are blurred,"
Curtis Publishing Co.,
supra, at
388 U. S. 163
(opinion of Warren, C.J.), and to treat constitutional values as
specially implicated where important, albeit nonofficial, policy
and behavior were the subjects of discussion. At the very least,
this tends to diminish the force of any contention that libelous
depictions of nonpublic persons are often likely to involve matters
of abiding public significance.
I cannot agree that the First Amendment gives special protection
to the press from "[t]he very possibility of having to engage in
litigation,"
ante at
403 U. S. 52
(opinion of BRENNAN, J.). Were this assertion tenable, I do not see
why the States could ever enforce their libel laws.
Cf. my
Brother BLACK's opinion,
ante at
403 U. S. 57.
Further, it would certainly cast very grave doubts upon the
constitutionality of so-called "right-of-reply statutes" advocated
by the plurality,
ante at
403 U. S. 47 n.
15, and ultimately treat the application of any general law to a
publisher or broadcaster as an important First Amendment issue. The
notion that such an interest, in the context of a purely private
libel, is a significant independent constitutional value is an
unfortunate consequence of the plurality's
Page 403 U. S. 72
single-minded devotion to the task of preventing
self-censorship, regardless of the purposes for which such
restraint is induced or the evils is exercise tends to avoid.
It is, then, my judgment that the reasonable care standard
adequately serves those First Amendment values that must inform the
definition of actionable libel, and that those special
considerations that made even this standard an insufficiently
precise technique when applied to plaintiffs who are "public
officials" or "public figures" do not obtain where the litigant is
a purely private individual.
III
There remains the problem of punitive damages. [
Footnote 2/3] No doubt my Brother MARSHALL is
correct in asserting that the specter of being forced to pay out
substantial punitive damage awards is likely to induce
self-censorship. This would probably also be the case where the
harm actually caused is likely to be great. But, as I indicated
above, this fact, in itself, would not justify construing the First
Amendment to impose an arbitrary limitation on the amount of actual
damages recoverable. Thus, as my Brother MARSHALL would apparently
agree -- since he, too, proposes no limitation on actual damages --
one cannot jump from the proposition that fear of substantial
punitive damage awards may be an important factor in
Page 403 U. S. 73
inducing self-censorship directly to the result that punitive
damages cannot be assessed in all private libel cases. A more
particularized inquiry into the nature of the competing interests
involved is necessary in order to ascertain whether awarding
punitive damages must inevitably, in private libel cases, serve
only interests that are incompatible with the First Amendment.
At a minimum, even in the purely private libel area, I think the
First Amendment should be construed to limit the imposition of
punitive damages to those situations where actual malice is proved.
This is the typical standard employed in assessing anyone's
liability for punitive damages where the underlying aim of the law
is to compensate for harm actually caused,
see, e.g., 3 L.
Frumer et al., Personal Injury § 2.02 (1965); H. Oleck, Damages to
Persons and Property § 30 (1955), and no conceivable state interest
could justify imposing a harsher standard on the exercise of those
freedoms that are given explicit protection by the First
Amendment.
The question then arises whether further limitations on this
general state power must be imposed in order to serve the
particularized goals of the First Amendment. The most compelling
rationale for providing punitive damages where actual malice is
shown is that such damages assure that deterrent force is added to
the jury's verdict. If the speaker's conduct was quite likely to
produce substantial harm, but fortuitously did not, simple
assessment of actual damages will not fully reflect the social
interest in deterring that conduct generally. Further, even if the
harm done was great, the defendant may have unusually substantial
resources that make the award of actual damages a trivial
inconvenience of no actual deterrent value. And even where neither
of these factors obtains, the State always retains an interest in
punishing more severely conduct that, although it causes the same
effect, is more morally blameworthy. For example, consider
Page 403 U. S. 74
the distinction between manslaughter and first-degree
murder.
I find it impossible to say, at least without further judicial
experience in this area, that the First Amendment interest in
avoiding self-censorship will always outweigh the state interest in
vindicating these policies. It seems that a legislative choice is
permissible which, for example, seeks to induce, through a
reasonable monetary assessment, repression of false material,
published with actual malice, that was demonstrably harmful and
reasonably thought capable of causing substantial harm, but, in
fact, was not so fully injurious to the individual attacked.
Similarly, the State surely has a legitimate interest in seeking to
assure that its system of compensating victims of negligent
behavior also operates upon all as an inducement to avoidance of
such conduct. And these are burdens that are placed on all members
of society, thus permitting the press to escape them only if its
interest is somehow different in this regard.
However, from the standpoint of the individual plaintiff, such
damage awards are windfalls. They are, in essence, private fines
levied for purposes that may be wholly unrelated to the
circumstances of the actual litigant. That fact alone is not, I
think, enough to condemn them. The State may, as it often does, use
the vehicle of a private lawsuit to serve broader public purposes.
It is noteworthy that my Brother MARSHALL does not rest his
objection to punitive damages upon these grounds. He fears,
instead, the self-censorship that may flow from the unbridled
discretion of juries to set the amount of such damages. I agree
that, where these amounts bear no relationship to the actual harm
caused, they then serve essentially as springboards to jury
assessment, without reference to the primary legitimating
compensatory function of the system, of an infinitely wide range of
penalties wholly unpredictable in amount at the time of the
publication,
Page 403 U. S. 75
and that this must be a substantial factor in inducing
self-censorship. Further, I find it difficult to fathom why it may
be necessary, in order to achieve its justifiable deterrence goals,
for the States to permit punitive damages that bear no discernible
relationship to the actual harm caused by the publication at issue.
A rational determination of the injury a publication might
potentially have inflicted should typically proceed from the harm
done in fact. And where the compensatory scheme seeks to achieve
deterrence as a subsidiary byproduct, the desired deterrence, if
not precisely measured by actual damages, should be informed by
that touchstone if deterrence of falsehood is not to replace
compensation for harm as the paramount goal. Finally, while our
legal system does often mete out harsher punishment for more
culpable acts, it typically begins with a gradation of offenses
defined in terms of effects.
Compare, for example, larceny
with murder. It is not surprising, then, that most States
apparently require that punitive damages in most private civil
actions bear some reasonable relation to the actual damages
awarded, Oleck, at § 275, Pennsylvania included,
Weider v.
Hoffman, 238 F.
Supp. 437, 444-447 (MD Pa.1965).
However, where the amount of punitive damages awarded bears a
reasonable and purposeful relationship to the actual harm done, I
cannot agree that the Constitution must be read to prohibit such an
award. Indeed, as I understand it, my Brother MARSHALL's objection
to my position [
Footnote 2/4] is
not that the interest in freedom of speech dictates eliminating
such judgments, but that this result
Page 403 U. S. 76
is compelled by the need to avoid involving courts in an "
ad
hoc balancing" of "the content of the speech and the
surrounding circumstances,"
post at
403 U. S. 86,
403 U. S. 85,
much like that undertaken today in
403 U. S. the
same technique criticized in my dissent in
Time, Inc. v. Pape,
supra. I find this argument unpersuasive. First, I do not see
why my proposed rule would necessarily require frequent judicial
reweighing of the facts underlying each jury verdict. A carefully
and properly instructed jury should ordinarily be able to arrive at
damage awards that are self-validating. It is others, not I, who
have placed upon the federal courts the general duty of reweighing
jury verdicts regarding the degree of fault demonstrated in libel
actions. Further, to the extent that supervision of jury verdicts
would be required it would entail a different process from that
undertaken where judges redetermine the degree of fault. The
defendant's resources, the actual harm suffered by the plaintiff,
and the publication's potential for actual harm are all susceptible
of more or less objective measurement. And the overriding principle
that deterrence is not to be made a substitute for compensation
should serve as a useful mechanism for adjusting the equation.
Finally, even if some marginal "
ad hoc balancing" becomes
necessary, I should think it the duty of this Court at least to
attempt to implement such a process before preempting, for itself,
all state power in this regard. [
Footnote 2/5]
Page 403 U. S. 77
In sum, given the fact that it seems to reflect the majority
rule that most of our jurisprudence proceeds upon the premise that
legislative purposes can be achieved by fitting the punishment to
the crime, and since we deal here with a precise constitutional
interest that may legitimately require the States to resort to more
discriminating regulation within a more circumscribed area of
permissible concern, I would hold unconstitutional, in a private
libel case, jury authority to award punitive damages which is
unconfined by the requirement that these awards bear a reasonable
and purposeful relationship to the actual harm done. Conversely,
where the jury authority has been exercised within such
constraints, and the plaintiff has proved that the speaker acted
out of express malice, given the present state of judicial
experience, I think it would be an unwarranted intrusion into the
legitimate legislative processes of the States, and an
impermissibly broad construction of the First Amendment, to nullify
that state action.
Because the Court of Appeals adjudicated this case upon
principles wholly unlike those suggested here, I
Page 403 U. S. 78
would vacate the judgment below and remand the case for further
proceedings consistent with the views expressed herein.
[
Footnote 2/1]
Of course, for me, this case presents a Fourteenth, not a purely
First, Amendment issue, for the question is one of the
constitutionality of the applicable Pennsylvania libel laws.
However, I have found it convenient, in the course of this opinion,
occasionally to speak directly of the First Amendment as a
shorthand phrase for identifying those constitutional values of
freedom of expression guaranteed to individuals by the Due Process
Clause of the Fourteenth Amendment.
[
Footnote 2/2]
I would expressly reserve, for a case properly presenting it,
the issue whether the
New York Times rule should have any
effect on "privacy" litigation. The problem is briefly touched upon
in
Time, Inc. v. Hill, 385 U. S. 374,
385 U. S.
404-405 (1967) (HARLAN, J., concurring and
dissenting).
[
Footnote 2/3]
The conclusions I reach in Part III of this opinion are somewhat
different from those I embraced four Terms ago in
Curtis
Publishing Co., supra, at
388 U. S.
159-161. Where matters are in flux, however, it is more
important to re-think past conclusions than to adhere to them
without question, and the problem under consideration remains in a
state of evolution, as is attested to by all the opinions filed
today. Reflection has convinced me that my earlier opinion painted
with somewhat too broad a brush, and that a more precise balancing
of the conflicting interests involved is called for in this
delicate area.
[
Footnote 2/4]
Of course, I do not envision that, consistently with my views,
the States could only exact some predetermined multiple of the
actual damages found. I should think a jury could simply be
instructed, along the lines set out in my opinion, on the
legitimate uses of the punitive damage award and the necessity for
relating any such judgment to the harm actually done.
[
Footnote 2/5]
The plurality opinion States that the "real thrust" of my
position is that it "will not
constitutionalize' the
factfinding process." Ante at 403 U. S. 53. In
fact, I have attempted to demonstrate throughout this opinion that
I believe the position of my Brothers BRENNAN, BLACK, and MARSHALL
all, in varying degrees, overstate the extent to which libel law is
incompatible with the constitutional guarantee of freedom of
expression, and have pointed out that I think my view have merit
"even if [the objection noted in my Brother MARSHALL's opinion]
were not tenable." Supra at 403 U. S. 69.
Moreover, the assertion that an inquiry into whether actual damages
were suffered "will involve judges even more deeply in
factfinding," ante at 403 U. S. 53,
than ascertaining whether "the defendant, in fact, entertained
serious doubts as to the truth of his publication," ante
at 403 U. S. 56, or
whether the publication involved "an event of public or general
concern," ante at
403 U. S. 52, seems to me to carry its own refutation.
The former focuses on measurable, objective fact; the latter upon
subjective, personal belief. Finally, I cannot see why juries may
not typically be entrusted responsibly to determine whether a
publisher was negligent, a function they perform in judging the
harmful conduct of most other members of society, or why it should
be materially more difficult for judges to oversee such decisions
where a speaker, rather than any other actor, is a
defendant.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE STEWART joins,
dissenting.
Here, unlike the other cases involving the
New York
Times [
Footnote 3/1] doctrine,
we are dealing with an individual who held no public office, who
had not taken part in any public controversy, and who lived an
obscure private life. [
Footnote
3/2] George Rosenbloom, before the events and reports of the
events involved here, was just one of the millions of Americans who
live their lives in obscurity.
The protection of the reputation of such anonymous persons
"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."
Rosenblatt v. Baer, 383 U. S. 75,
383 U. S. 92
(1966) (STEWART, J., concurring). But the concept of a citizenry
informed by a free and unfettered press is also basic to our system
of ordered liberty. Here, these two essential and fundamental
values conflict.
I
The plurality has attempted to resolve the conflict by creating
a conditional constitutional privilege for defamation published in
connection with an event that is found to be of "public or general
concern." The condition for the privilege is that the defamation
must not be published "with knowledge that it was false or with
reckless
Page 403 U. S. 79
disregard of whether it was false or not." I believe that this
approach offers inadequate protection for both of the basic values
that are at stake.
In order for particular defamation to come within the privilege,
there must be a determination that the event was of legitimate
public interest. That determination will have to be made by courts
generally, and, in the last analysis, by this Court in particular.
Courts, including this one, are not anointed with any extraordinary
prescience. But, assuming that, under the rule announced by MR.
JUSTICE BRENNAN for the plurality, courts are not simply to take a
poll to determine whether a substantial portion of the population
is interested or concerned in a subject, courts will be required to
somehow pass on the legitimacy of interest in a particular event or
subject; what information is relevant to self-government.
See
Whitney v. California, 274 U. S. 357,
274 U. S. 375
(1927) (Brandeis, J., concurring). The danger such a doctrine
portends for freedom of the press seems apparent.
The plurality's doctrine also threatens society's interest in
protecting private individuals from being thrust into the public
eye by the distorting light of defamation. This danger exists since
all human events are arguably within the area of "public or general
concern." My Brother BRENNAN does not try to provide guidelines or
standards by which courts are to decide the scope of public
concern. He does, however, indicate that areas exist that are not
the proper focus of public concern, and cites
Griswold v.
Connecticut, 381 U. S. 479
(1965). But it is apparent that, in an era of a dramatic threat of
overpopulation and one in which previously accepted standards of
conduct are widely heralded as outdated, even the intimate and
personal concerns with which the Court dealt in that case cannot be
said to be outside the area of "public or general concern."
Page 403 U. S. 80
The threats and inadequacies of using the plurality's
conditional privilege to resolve the conflict between the two basic
values involved here have bee illustrated by the experience courts
have had in trying to deal with the right of privacy.
See
Cohen, A New Niche for the Fault Principle: A Forthcoming
Newsworthiness Privilege in Libel Cases?, 18 U.C.L.A.L.Rev. 371,
379-381 (1970); Kalven, Privacy in Tort Law -- Were Warren and
Brandeis Wrong?, 31 Law & Contemp.Prob. 326, 336 (1966). The
authors of the most famous of all law review articles recommended
that no protection be given to privacy interests when the
publication dealt with a "matter which is of public or general
interest." Warren & Brandeis, The Right to Privacy, 4
Harv.L.Rev.193, 214 (1890). Yet cases dealing with this caveat
raise serious questions whether it has substantially destroyed the
right of privacy as Warren and Brandeis envisioned it. [
Footnote 3/3] For example, the publication
of a picture of the body of plaintiff's daughter immediately after
her death in an automobile accident was held to be protected.
Kelley v. Post Publishing Co., 327 Mass. 275,
98
N.E.2d 286 (1951). And the publication of the details of the
somewhat peculiar behavior of a former child prodigy, who had a
passion for obscurity, was found to involve a matter of public
concern.
Sidis v. F-R Pub. Corp., 113 F.2d 806 (CA2
1940).
In
New York Times, the Court chose to balance the
competing interests by seeming to announce a generally applicable
rule. Here it is apparent that the general rule announced cannot
have general applicability. The plurality's conditional privilege
approach, when coupled
Page 403 U. S. 81
with constitutionalizing of the factfinding process, [
Footnote 3/4]
see Part
403 U. S.
JUSTICE BRENNAN's opinion, results in the adoption of an
ad
hoc balancing of the two interests-involved. The Court is
required to weigh the nuances of each particular circumstance on
its scale of values regarding the relative importance of society's
interest in protecting individuals from defamation against the
importance of a free press. This scale may arguably be a more
finely tuned instrument in a particular case. But whatever
precision the
ad hoc method supplies is achieved at a
substantial cost in predictability and certainty. Moreover, such an
approach will require this Court to engage in a constant and
continuing supervision of defamation litigation throughout the
country.
See Time, Inc. v. Pape, 401 U.
S. 279,
401 U. S. 293
(1971) (HARLAN, J., dissenting);
Curtis Publishing Co. v.
Butts, 388 U. S. 130,
388 U. S. 171
(1967) (opinion of BLACK, J.).
Undoubtedly,
ad hoc balancing may be appropriate in
some circumstances that involve First Amendment problems.
See,
e.g., Bates v. Little Rock, 361 U. S. 516
(1960);
Tinker v. Des Moines Independent Community School
Dist., 393 U. S. 503
(1969). But in view of the shortcomings of my Brother BRENNAN's
test, defamation of a private individual by the mass media is not
one of the occasions for unfettered
ad hoc balancing. A
generally applicable resolution is available that promises to
provide an adequate balance between the interest in protecting
individuals from defamation and the equally basic interest in
protecting freedom of the press.
II
As the plurality recognizes here and as was recognized as the
basic premise of the
New York Times principle, the threat
that defamation law presents for the values
Page 403 U. S. 82
encompassed in the concept of freedom of the press is that of
self-censorship. [
Footnote 3/5] Our
notions of liberty require a free and vigorous press that presents
what it believes to be information of interest or importance; not
timorous, afraid of an error that leaves it open to liability for
hundreds of thousands of dollars. The size of the potential
judgment that may be rendered against the press must be the most
significant factor in producing self-censorship -- a judgment like
the one rendered against Metromedia would be fatal to many smaller
publishers. [
Footnote 3/6]
The judgments that may be entered in defamation cases are unlike
those that may be entered in most litigation, since the bulk of the
award is given to punish the defendant or to compensate for
presumed damages. Here, the jury awarded Mr. Rosenbloom $725,00 in
punitive damages. [
Footnote 3/7]
This huge sum was given not to compensate him for any injury, but
to punish Metromedia. The concept of punitive or exemplary damages
was first articulated in
Huckle v. Money, 2 Wils. 205, 95
Eng.Rep. 768 (K.B. 1763) -- one of the general warrant cases.
There, Lord Camden found that the power to award such damages was
inherent in the jury's exercise of uncontrolled discretion in the
awarding of damages.
See 1 T. Sedgwick, Damages §§ 347-350
(9th ed.1912). Today these damages are rationalized as a way to
punish the wrongdoer, and to admonish others not to err.
See Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev.
1172 (1931). Thus, they serve the same function as criminal
penalties, and are, in effect, private fines. Unlike criminal
penalties, however, punitive damages are not awarded within
discernible limits, but can be awarded
Page 403 U. S. 83
in almost any amount. Since there is not even an attempt to
offset any palpable loss, and since these damages are the direct
product of the ancient theory of unlimited jury discretion, the
only limit placed on the jury in awarding punitive damages is that
the damages not be "excessive," and, in some jurisdictions, that
they bear some relationship to the amount of compensatory damages
awarded. [
Footnote 3/8]
See H. Oleck, Damages to Persons and Property § 275, pp.
557-560 (1955). The manner in which unlimited discretion may be
exercised is plainly unpredictable. And fear of the extensive
awards that may be given under the doctrine must necessarily
produce the impingement on freedom of the press recognized in
New York Times.
In addition to the huge awards that may be given under the label
of punitive or exemplary damages, other doctrines in the law of
defamation allow substantial damages without even an offer of
evidence that there was actually injury.
See Montgomery v.
Dennison, 363 Pa. 255, 69 A.2d 520 (1949); Restatement of
Torts § 621 (1938). These doctrines create a legal presumption that
substantial injuries "normally flow" from defamation. There is no
requirement that there be even an offer of proof that there was, in
fact, financial loss, physical or emotional suffering, or that the
plaintiff's standing in the community was diminished. The effect is
to give the jury essentially unlimited discretion, and thus to give
it much the same power it exercises under the labels of punitive or
exemplary damages. The impingement upon free speech is the same no
matter what label is attached.
Page 403 U. S. 84
The unlimited discretion exercised by juries in awarding
punitive and presumed damages compounds the problem of
self-censorship that necessarily results from the awarding of huge
judgments. This discretion allows juries to penalize heavily the
unorthodox and the unpopular, and exact little from others. Such
free-wheeling discretion presents obvious and basic threats to
society's interest in freedom of the press. And the utility of the
discretion in fostering society's interest in protecting
individuals from defamation is, at best, vague and uncertain. These
awards are not to compensate victims; they are only windfalls.
Certainly, the large judgments that can be awarded admonish the
particular defendant affected, as well as other potential
transgressors, not to publish defamation. The degree of admonition
-- the amount of the judgment in relation to the defamer's means --
is not, however, tied to any concept of what is necessary to deter
future conduct, nor is there even any way to determine that the
jury has considered the culpability of the conduct involved in the
particular case. Thus, the essence of the discretion is
unpredictability and uncertainty.
The threats to society's interest in freedom of the press that
are involved in punitive and presumed damages can largely be
eliminated by restricting the award of damages to proved, actual
injuries. The jury's wide-ranging discretion will largely be
eliminated, since the award will be based on essentially objective,
discernible factors. And the self-censorship that results from the
uncertainty created by the discretion as well as the
self-censorship resulting from the fear of large judgments
themselves would be reduced. At the same time, society's interest
in protecting individuals from defamation will still be fostered.
The victims of the defamation will be compensated for their real
injuries. They will not be, however, assuaged far beyond their
wounds. And, there
Page 403 U. S. 85
will be a substantial, although imprecise and imperfect,
admonition to avoid future defamation by imposing the requirement
that there be compensation for actual damages.
My Brother HARLAN argues that it is unnecessary to go so far.
Although he recognizes the dangers involved in failing "to confine
the amount of jury verdicts . . . within any ascertainable limits,"
MR. JUSTICE HARLAN suggests that, on a finding of actual malice,
punitive damages may be awarded if they "bear a reasonable and
purposeful relationship to the actual harm done." My Brother HARLAN
envisions jurors being instructed [
Footnote 3/9] to consider the deterrent function of
punitive damages and to try to gear the punitive damages awarded in
some undetermined way to actual injury. Apparently, the jury under
the supervision of the court would weigh the content of the speech
and the surrounding circumstances --
inter alia, the
position of the plaintiff, the wealth of the defendant, and the
nature of the instrument of publication -- on the scale of their
values and determine what amount is necessary in light of the
various interests involved. Since there would be no objective
standard by which to measure the jury's decision, there would be no
predetermined limit of jury discretion, and all of the threats to
freedom of the press involved in such discretion would remain. The
chant of some new incantation will, of course, provide clear
authority for a court to substitute its values for the jury's and
remake the decision. If this is what my Brother
Page 403 U. S. 86
HARLAN envisions, he is merely moving the
ad hoc
balancing from the question of fault to the question of
damages.
I believe that the appropriate resolution of the clash of
societal values here is to restrict damages to actual losses.
See Hill, The Bill of Rights and the Supervisory Power, 69
Col.L.Rev. 181, 191 n. 62 (1969). Of course, damages can be awarded
for more than direct pecuniary loss, but they must be related to
some proved harm.
See Wright, Defamation, Privacy, and the
Public's Right to Know: A National Problem and a New Approach, 46
Tex.L.Rev. 630, 648 (1968). If awards are so limited in cases
involving private individuals -- persons first brought to public
attention by the defamation that is the subject of the lawsuit --
it will be unnecessary to rely, as both the plurality and, to some
extent, MR. JUSTICE HARLAN, do, on somewhat elusive concepts
[
Footnote 3/10] of the degree of
fault, and unnecessary, for constitutional purposes, to engage in
ad hoc balancing of the competing interests involved.
[
Footnote 3/11] States would be
essentially free to continue the evolution of the common law of
defamation, and to articulate whatever fault standard best suits
the State's need. [
Footnote
3/12]
The only constitutional caveat should be that absolute or strict
liability, like uncontrolled damages and private
Page 403 U. S. 87
fines, cannot be used. [
Footnote
3/13] The effect of imposing liability without fault is to
place "the printed, written or spoken word in the same class with
the use of explosives or the keeping of dangerous animals." W.
Prosser, The Law of Torts § 108, p. 792 (3d ed.1964). Clearly, this
is inconsistent with the concepts of freedom of the press.
Thus, in this case, I would reverse the judgment of the Court of
Appeals for the Third Circuit and remand the case for a
determination of whether Mr. Rosenbloom can show any actual
loss.
[
Footnote 3/1]
New York Times Co. v. Sullivan, 376 U.
S. 254 (1964).
[
Footnote 3/2]
See, e.g., Associated Press v. Walker, 388 U.
S. 130 (1967);
Curtis Publishing Co. v. Butts,
388 U. S. 130
(1967);
Beckley Newspapers Corp. v. Hanks, 389 U. S.
81 (1967);
Greenbelt Publishing Assn. v.
Bresler, 398 U. S. 6 (1970);
Rosenblatt v. Baer, 383 U. S. 75
(1966).
[
Footnote 3/3]
For cases in which the courts have protected the privacy of
persons involved in dramatic public events,
see Mau v. Rio
Grande Oil, Inc., 28 F. Supp.
845 (ND Cal.1939),
and Melvin v. Reid, 112 Cal. App.
285, 297 P. 91 (1931).
[
Footnote 3/4]
See Time, Inc. v. Pape, 401 U.
S. 279 (1971).
[
Footnote 3/5]
New York Times Co. v. Sullivan, 376 U.S. at
376 U. S.
279.
[
Footnote 3/6]
The jury awarded Mr. Rosenbloom $25,000 in general damages and
$725,000 in punitive damages. The District Court reduced the
punitive damages to $250,000 on remittitur.
[
Footnote 3/7]
See 403 U.S.
29fn3/6|>n.6,
supra.
[
Footnote 3/8]
Most jurisdictions in this country recognize the concept of
punitive or exemplary damages. Four States -- Illinois,
Massachusetts, Nebraska, and Washington -- apparently do not
recognize the doctrine. In Louisiana and Indiana, the doctrine has
limited applicability.
See H. Oleck, Damages to Persons
and Property § 269, p. 541 (1955).
[
Footnote 3/9]
"[A] jury instruction is not abracadabra. It is not a magical
incantation, the slightest deviation from which will break the
spell. Only its poorer examples are formalistic codes recited by a
trial judge to please appellate masters. At its best, it is simple,
rugged communication from a trial judge to a jury of ordinary
people, entitled to be appraised in terms of its net effect."
Time, Inc. v. Hill, 385 U. S. 374,
385 U. S. 418
(1967) (Fortas, J., dissenting).
[
Footnote 3/10]
See 403 U.S.
29fn3/9|>n. 9,
supra.
[
Footnote 3/11]
Of course, reliance on limiting awards to compensation for
actual loss will require some review of the facts of particular
cases. But that review will be limited to essentially objectively
determinable issues; the contents of the publication will not have
to be considered.
[
Footnote 3/12]
Leaving States free to impose liability when defamation is found
to be the result of negligent conduct should make it somewhat more
likely that a private person will have a meaningful forum in which
to vindicate his reputation. If the standard of care is higher, it
would seem that publishers will be more likely to assert the
defense of truth than simply contend that they did not breach the
standard.
[
Footnote 3/13]
Strict liability for defamation was first clearly established in
Jones v. E. Hulton & Co., [1909] 2 K.B. 444,
aff'd, [1910] A.C. 20.
See Smith,
Jones v.
Hulton: Three Conflicting Judicial Views As to a Question of
Defamation, 60 U.Pa.L.Rev. 365 and 461 (1912). The standard has
been applied in many jurisdictions in this country.
See, e.g.,
Upton v. Times-Democrat Publishing Co., 104 La. 141, 28 So.
970 (1900);
Laudati v. Stea, 44 R.I. 303, 117 A. 422
(1922);
Taylor v. Hearst, 107 Cal. 262, 40 P. 392 (1895).
See also Restatement of Torts § 582, comment
g
(1938). Liability without fault has not been applied, however, in
Pennsylvania.
See Summit Hotel Co. v. National Broadcasting
Co., 336 Pa. 182, 8 A.2d 302 (1939), Pa.Stat.Ann., Tit. 12, §
1583 (1953).