*1 DUN & BRADSTREET, INC. GREENMOSS
BUILDERS, INC. No. Argued 83-18. March 21, 1984 Reargued 3, 1984 October Decided June *2 J., judgment opin- and delivered an announced the Court Powell, ion, JJ., J., Rehnquist joined. C. Burger, which and O’Connor, post, p. 763, White, J., concurring in post, p. opinions and filed judgment. Brennan, J., dissenting opinion, in which Marshall, filed a JJ., p. joined, post, and 774. Blackmun, Stevens, Garrett, Gordon Lee Jr., reargued the cause for petitioner. Hugh Dorsey, M. Jr., David him With the briefs were Bailey, Smith, J. William B. B. Peter J. Monte, and A. Lovell. Buffum
Thomas F. Heilmann the cause and filed briefs reargued for respondent.* urging
*Briefs of amici curiae for reversal were filed the American Congress Organizations by Federation of Labor of Industrial Robert Gold; Weinberg, George Kaufmann, M. Laurence for Dow Jones & Davis; Co., Inc., by D. Robert Sack and Frederick T. for the Information Industry III, Wiley, Association Richard E. Lawrence W. Secrest Yourshaw, Reilly; Washington Michael and Patricia M. and for Post by David E. Kendall and Kevin T. Baine. Corp. E. Murane filed for as amicus curiae
William briefs Sunward urging affirmance. judgment announced the of the Court
Justice
Powell
opinion,
and delivered an
in which
Rehnquist
Justice
joined.
O’Connor
In Gertz v. Robert
(1974),
Welch, Inc.,
false and plaintiff statements unless the shows “actual knowledge malice,” that falsity is, or reckless dis- regard for the question truth. presented in this case is whether applies this rule of Gertz when the false and defama- tory statements *3 do not involve matters of concern.
HH Dun Petitioner & reporting a Bradstreet, credit agency, provides subscribers with financial and related information about businesses. All the information confidential; under subscription agreement terms of the may the subscribers anyone reveal not it to July else. petitioner On 26, 1976, report sent a indicating five subscribers respondent, that a construction voluntary contractor, petition had filed a for bankruptcy. report This grossly was false misrepre- and respondent’s sented assets and day, liabilities. That same discussing while possibility financing of future with its respondent’s president bank, was told that the bank had defamatory report. received immediately pe- He called regional explained titioner’s office, the error, asked correction. requested addition, he the names of the firms that had report received the false in order to assure them company that the was promised solvent. Petitioner to look into the matter but divulge refused to the names of those who report. had received the determining
After report that its peti- was indeed false, tioner issued a corrective August notice on or about 3, 1976, report. who five subscribers had received the initial to the respondent’s employees, stated that one of The notice former respondent bankruptcy itself, had filed for not and that re- spondent Respondent in “continued business as usual.” told petitioner again it was dissatisfied with the and it notice, report. for a list of subscribers had asked who seen the initial petitioner Again divulge refused to their names.
Respondent brought then this defamation action in Ver- alleged report injured mont state court. It that the false had reputation sought compensatory punitive its both damages. petitioner’s The trial established that the error in report employees, 17-year- had been caused when one itsof high paid bankruptcy old school student to review Vermont pleadings, inadvertently respondent had attributed to a bank- ruptcy petition respondent’s employ- filed one former Although petitioner’s representative ees. testified that it practice accuracy reports was routine to check the of such try verify with the themselves, businesses it did not respondent reporting information about before it. jury respond- trial,
After returned in favor of a.verdiet compensatory presumed ent and $50,000 awarded or dam- ages punitive damages. $300,000 Petitioner moved argued for a new trial. It Welch, Gertz Robert supra, broadly Inc., Court had ruled that “the may permit recovery States not
damages, liability showing at least when is not based on a *4 knowledge falsity disregard truth,” or reckless and judge’s argued permitted it that the instructions in this case jury showing. to award such on a lesser The applied indicated some doubt as to whether trial court Gertz “[bjecause granted a new trial cases,” to “non-media but charge its and . . . . . . dissatisfaction with conviction that justice require[d]” App. it. 26. the interests of Supreme reversed. 143 66, Court Vt. 461 Vermont (1983). Although recognizing “in A. 414 certain in- 2d between and nonmedia stances the distinction media defend-
753
may
ants
be difficult to draw,” the court stated that “no such
difficulty presented
reporting agencies,
with credit
which
selling
are in the business of
financialinformation
ato limited
number of
paid
who
subscribers
have
substantial fees for
their services.”
Relying
Id.,
461 A.
73,
at
at
2d,
417.
distinguishing
reporting
characteristic of credit
firms,
the court concluded
type
that such firms are not “the
of media
worthy
protection
contemplated
First
by
Amendment
as
[Co.
New York Times
(1964),]
v. Sullivan,
Recognizing disagreement among the lower courts about protections when apply,1 granted of Gertz we certiorari. 959 although S. We now affirm, for reasons upon different from those Supreme relied the Vermont Court.
II
respondent
As an initial matter,
contends that
need not
we
applies
determine whether Gertz
in this case
in-
because the
required
taken
jury
structions,
as a whole,
to find “actual
1Compare Denny Mertz,
v.
106
636,
Wis. 2d
318
141,
N. W. 2d
cert. de
(1982) (Gertz
nied, 459
S. 883
inapplicable
U.
private figure
against
suits
Stuempges
defendants);
nonmedia
Parke,
v.
Co.,
Davis &
297 N. W. 2d
(Minn. 1980)
Metz,
Rowe v.
(same);
(1978)
424,
Colo.
755 “bad faith” and disregard “reckless of [statement’s] possi- consequences.” ble App. 19. The permit- instructions thus jury ted to award damages on showing lesser than “actúal malice.” Consequently, the trial court’s conclusion that the satisfy instructions did not Gertz was correct, Supreme and the Vermont Court’s determina- tion that inapplicable Gertz was necessary was to its decision that the trial court granting erred in the motion for a new trial. We therefore must consider applies whether Gertz the case before us.
Ill In New York Times Co. v. supra, Sullivan, the Court for the first time held that the First Amendment limits reach of state defamation laws. That case public concerned a offi- recovery cial’s damages publication for the of an advertise- criticizing ment police rights conduct in a civil demonstration. As the Court noted, the advertisement concerned “one of the major public issues of our time.” Noting Id., at 271. expression “freedom upon public questions is secured the First Amendment,” (emphasis id., at 269 added), and public “debate on issues should be uninhibited, robust, wide-open,” (emphasis id., at added), 270 the Court held public that a officialcannot recover defamatory proves falsehood unless he that the false statement was made with “‘actual malice’—that knowledge is, with that it was false or disregard with reckless of whether it was or false not,” id., at 280. In later involving public cases, all issues, the Court extended protection same constitutional public libels of figures, g., e. Publishing Curtis v. Co. Butts, (1967), 388 S.U. and in suggested one case plurality in a opinion that this constitutional rule should extend to libels long individual so defamatory as the in- statements public volved a general “matter of interest,” Rosenbloom v. Metromedia, (1971) Inc., 403 U. (opinion S. J.). Brennan, (1974), we S. Welch, Inc., v. Robert Gertz not extend did Times York protections of New that the
held a libelous suggested. concerned Gertz Rosenbloom far as as Opinion, the magazine American called appearing in a article Society. article Birch monthly the John outlet policeman in prosecution of a question whether discussed campaign local to discredit part Chicago of a Communist was plaintiff, Gertz, neither agencies. The enforcement law tangentially lawyer figure, awas anor official *7 alleged magazine he prosecution. The in the involved police “frame-up” officer architect chief was every activity. other Like to Communist linked him to limits constitutional has found Court in this which case expression on a matter involved Gertz laws, state defamation public concern. of undoubted expression a concerned fact that that the we held Gertz,
In to the libel defendant entitle itself not issue did pro- These Times. New York protections of constitutional solely by “justified reference not found, were we tections, immunity in press media and broadcast the interest they repre- Rather, liability.” at 343. S., from Amendment] [First con- between “an accommodation sented present in the context interest limited state cernís] and the persons.” libel by public Ibid. brought actions brought of libel competing persons by private found we actions persons private have Largely because different. interests injury risk voluntarily exposed increased themselves not they generally lack defamatory because statements from rebutting id., statements, such opportunities for effective “strong possessed a State that the at we found private compensating individuals legitimate in . . interest . Balancing reputation.” injury Id., at 348-349. against the same First stronger interest state held that State we Times, York in New at stake interest recovery presumed and not allow could opinion, Nothing in our showing malice.” of “actual absent however, indicated that this same balance would be struck regardless of the type of speech involved.4
< We have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. To make this determination, we em- must ploy the approach approved in Gertz and balance the State’s interest compensating private individuals for injury to their reputation against the First Amendment interest protecting this type expression. This state interest identical to the one weighed Gertz. There we found that it was “strong and legitimate.” S.,U. at 348. A State not should lightly required to abandon it, “for, as Mr. Justice Stewart has reminded us, the indi- vidual’s right to the protection of his own good name 4The dissent states that points “[a]t several the Court in Gertz makes perfectly clear [that] the restrictions of and punitive damages were apply Post, in all cases.” n. 11. Given the context of Gertz, however, the Court could have made “perfectly only clear” *8 these applied restrictions in cases involving public speech. fact, In dissent itself concedes that “Gertz . . . largely focused defining on the cir cumstances protection under which of the central First Amendment value of robust debate of issues should plaintiffs mandate actual show malice to obtain judgment a and damages Post, actual ....” at (origi 777 nal emphasis). The dissent incorrectly also states that Gertz “specifically held,” post, at 779, 793, both presumed “that the award of punitive damages on less than showing of actual malice is not narrowly tailored means to achieve legitimate purpose state of protecting reputation private persons .,” . . 779, post, at and that “unrestrained were ‘unnecessarily’ ... broad legitimate relation to the state inter- ests,” at post, 793-794. Although the Court made both statements, it did so only within the context of speech. Neither statement controls here. What was “not . . narrowly . tailored” was “‘unnecessarily’ broad” with respect public speech is not necessarily so with respect speech now at Properly issue. understood, Gertz is consistent with the result today. we reach
758
‘reflects no more than our basic of the essential concept and worth of human at dignity every being concept —a the root of decent of ordered system liberty. like protection private protection personality, life itself, is left to the individual States under primarily . . .’ Rosenblatt the Ninth and Tenth Amendments. (1966) Baer, v. 383 75, U. S. 92 (concurring opinion).” Id., 341. at
The First Amendment is hand, on the other less interest, than the one Gertz. We have important weighed long that not all speech is of First Amendment recognized equal It is on concern’” importance.5 speech “‘matters of public many recognized This Court occasions has that certain kinds of speech are less central of the First Amendment than interests “fighting long others. have Obscene words” been accorded no States, Chaplinsky Roth United protection. 476, (1957); v. S. Hampshire, v. New cf. Harisiades 568, (1942); 315 U. S. 571-572 (1952) Shaughnessy, 580, (advocating 342 U. S. 591-592 violent overthrow Near v. Minnesota ex rel. unprotected speech); Government (1931) Olson, 697, (publication troopship sailings during 283 U. S. may enjoined). protected speech, wartime be the area of the most prominent example protection of reduced for certain kinds of con noted, speech. speech, occupies cerns commercial Such have we a “subor position in the scale of First Amendment values.” Ohralik v. Ohio dinate (1978). Assn., State Bar 447, easily 436 U. S. It also is more verifi proper regulation. Virginia likely Phar able less to be deterred macy Virginia Council, Inc., Bd. Citizens Consumer 425 U. S. (1976). Accordingly, may regulated ways 771-772 it might be expression. Ohralik, impermissible in supra, the realm of noncommercial Corp. Central Hudson & Elec. v. Public 456; Gas Service Comm’n of York, New 447 U. S. 562-563 In Ohralik we noted provide examples. Other areas of the law further “[njumerous examples
that there are regu- ... of communications that are Amendment, offending exchange lated without the First such as the securities, corporate proxy statements, information about exchange *9 price production among competitors, employers’ information employees.” S., threats of retaliation for the labor activities 436 U. (citations omitted). regulation political speech 456 Yet similar is sub- Hartlage, Brown ject rigorous scrutiny. 45, to the most See v. 456 U. S. Sullivan, New York Times Co. v. (1982); 254, 279, 52-53 376 U. n. S. 19
759 that is “at protection.” the heart of the First Amendment’s First National Bank Boston v. Bellotti, 435 U. 776 765, S. (1978), (1940). citing Thornhill v. 310 Alabama, U. S. 88, 101 Myers, As (1983), we stated in Connick v. 461 U. 138, S. 145 “special speech [for public concern issues] on is no mystery”:
“The First Amendment ‘was fashioned to assure unfet interchange bringing tered of ideas for the about of political changes people.’ and social desired Roth (1957); v. United States, 354 476, U. S. 484 New York (1964). Times Co. v. Sullivan, 376 254, U. S. 269 ‘[S]peech concerning public affairs is more than self- expression; self-government.’ it is the essence of Garri (1964). son v. 379 Louisiana, U. 64, S. 74-75 Accord ingly, frequently Court has reaffirmed that ‘ public occupies “highest rung issues of the hier archy of First Amendment values,”’ and is entitled to special protection. NAACP v. Claiborne Hardware (1982); Carey Co., 458 886, U. S. v. Brown, (1980).” U. S. 455, 467 purely private
In contrast,
on matters of
concern is of
less First Amendment
Id.,
concern.
at 146-147. As a num-
including
recog-
ber of state courts,
the court below, have
regulating
nized,
role of the Constitution in
state libel law
is far more limited when the concerns that activated New
York Times and Gertz are
absent.6
such a case,
(1964); Buckley
Valeo,
v.
Likewise,
S.
while the
power of the
lawyers,
State to license
psychiatrists,
school
teachers —all
speak
of whom
for a living
unquestioned,
this Court has
—is
held that a law requiring licensing
organizers
of union
is unconstitutional
Collins,
under the First
Thomas Amendment.
(1945);
“[t]here
pub-
is no threat to the free and robust debate of
potential
there
issues;
lic
is no
interference with a mean-
dialogue
ingful
concerning self-government;
of ideas
liability causing
is no threat
there
a reaction of self-
censorship by
press.
present
The facts of the
case
wholly
are
without the First Amendment concerns with
Supreme
which
Court of the United States has been
struggling.” Harley-Davidson Motorsports,
Inc. v.
Markley,
(1977).
est adequately awards of supports presumed punitive absent a showing “actual malice.”7 —even
V The only remaining issue is whether petitioner’s credit report involved a matter of public concern. In a related context, we have held that . . . “[w]hether speech addresses a matter of concern public must be determined by ex- [the pression’s] content, form, and context ... as revealed by Myers, supra, record.” Connick the whole at 147-148. dissent, purporting apply balancing same test that dowe today, concludes that purely even on private matters is entitled to protections Post, “balance,” Gertz. at 786. however, Its rests on a misinterpretation. In particular, the dissent language that, finds in Gertz believes, it shows the interest to State’s be “irrelevant.” post, See at 794. It easy is then an step say for the dissent to that the State’s is interest outweighed by even the reduced First private Amendment interest in Gertz, speech. however, say did not that the state interest was “irrele vant” in Indeed, absolute terms. such a by statement is belied it Gertz self, for it held that damages were available under S., some circumstances. Rather, at 349. what the Gertz language indicates is that the State’s interest is not substantial relative to the First public speech. interest in language This is thus irrelevant today’s decision. “balance,” The dissent’s moreover, protection would lead to the all libels —no matter how attenuated their constitutional interest. If the law, dissent were the impeccable a woman of character who was branded by jealous “whore” neighbor would have no effective recourse unless she prove could “actual malice” convincing clear and evidence. This not is malice in ordinary sense, but in the demanding more sense of New York would, Times. The effect, dissent constitutionalize the entire common law of libel. petitioner’s report factors credit con-
These indicate solely in the individual cerns no issue.8 It was specific speaker and its business audience. interest of the Corp. v. Public Hudson Gas & Elec. Service Cf. Central (1980). par- York, New 447 U. S. This Comm’n of special protection no when—as ticular interest warrants speech wholly clearly damaging this case—the false and Virginia reputation. id., 566; the victim’s business Cf. Pharmacy Virginia Bd. v. Consumer Council, Inc., Citizens since the credit Moreover, 425 U. S. 771-772 only report five subscribers, who, was made available subscription agreement, under the terms of the could not dis- report it cannot said that the further, seminate it involves any “strong interest the free flow of commercial informa- simply argument There is no Id., tion.” at 764. credible type reporting requires special protection that this of credit [will] issues be uninhibited, to ensure “debate *12 wide-open.” New York Times robust, Sullivan, Co. v. at 270. S., 376 U. advertising, hardy addition,
In like is here, unlikely by regulation. to be deterred incidental state Virginia Virginia Pharmacy Bd. v. See Citizens Consumer solely Inc., at 771-772. It is motivated Council, S., profit, have is a which, noted, the desire for we force less Arguably, likely than others. Ibid. the re- to be deterred objectively porting here was also more verifiable than deserving greater protection. any ibid. case, See provides powerful reporting market incentive to a credit today reporting suggests holding The leaves all credit dissent our subject protection. is incorrect. to reduced First Amendment This report depends on whether the protection particular accorded a credit “content, form, concerns a report’s and context” indicate that it do, post, suggests hold, we matter. We also do not as dissent protection subject constitutional because report is to reduced speech, speech. We discuss such it constitutes economic or commercial many advertising, only show how of the same concerns that along with protection apply in those areas argue in of reduced constitutional favor here as well.
agency to be accurate, since false reporting credit is of no use creditors. Thus, “chilling” incremental effect of libel suits would be of significance.9 decreased
I—i > We permitting conclude that recovery punitive damages in defamation cases showing absent a “actual malice” does hot violate the First Amendment when defamatory statements do not involve matters of Accordingly, concern. judgment we affirm the of the Ver- Supreme mont Court.
It is so ordered.
Chief Justice Burger,
concurring
the judgment.
In Gertz v. Robert Welch, Inc.,
(1974),
I dissented in Gertz I because believed that, insofar as the “ordinary private citizen” was concerned, S.,U. at opinion the Court’s “abandoned] the traditional thread,” id., at 354-355, that had been the theme of the country law in this *13 9The Appeals Court of for the Fifth Circuit has that, noted while most provide States qualified a privilege against libel suits for commercial credit reporting agencies, in those States that do not there is a thriving credit reporting business and commercial credit transactions are not inhibited. Hood v. Dun Bradstreet, & Inc., 486 F. 2d 32 (1973), denied, cert. U. S. 985 The court cited empirical an study comparing credit transactions in Boise, Idaho, where there is no privilege, with those in Spokane, Washington, where there is one. 2d, F. and n. 18. to con- of law preferred this allow area up “to I time. to that private respect to up [then] [had] with to as it to evolve tinue theory which new doctrinal on a than embark citizens rather ancestry.” however, Gertz, Ibid. jurisprudential [had] no must, it overruled, it is land, until of the law is now the by applied this Court. be principle decisis, stare under the today whether is question Court single the before The opinion plurality holds that applies The case. to this Gertz challenged expres- apply unlike because, not does Gertz defamatory expression in case alleged Gertz, sion agree that I concern. a matter does not relate alleged defama- in which circumstances is limited Gertz impor- general tory expression a matter concerns question to a here relates expression in that tance, and agree private I therefore essentially concern. matter that it holds that plurality opinion extent to the with indi- reasons the two inapplicable in this case is Gertz present dispose case. of the needed more is cated. No ill-con- that was however, Gertz believe, I continue that Gertz agree with Justice therefore ceived, and White generally agree with Justice I also should be overruled. concerning Times York New Co. observations White’s equates dis- “reckless however, Times, New York Sullivan. jury permit should regard malice; this with truth” may if the defendant found malice that instruction defamatory which, material published to have shown as revealed have'' been care, would reasonable exercise of applied the literal has not the Court untrue. But since way, agree I with in this language Times of New York great reexamined. it should be White carry them with rights guaranteed the First Amendment responsibilities as well. certain apho- inevitably an recalls issues of these
Consideration checking has facts journalism “too much rism story.” many good news ruined
Justice White, concurring the judgment. Until New York Times Co. v. Sullivan, 376 U. S. (1964), the law of defamation was exclusively almost business of legislatures. state courts and Under the then prevailing state libel law, the defamed only individual had prove to publication a false written subjected him to contempt, hatred, or ridicule. Truth awas but defense; given defamatory general false injury circulation, reputa- to presumed; tion special was damages, such pecuniary as loss and emotional distress, could be recovered; and damages were if available common-law malice were shown. damages injury General reputation for were judgment awarded history because the many was that “in cases defamatory the effect of statements is so subtle and in- impossible direct directly that it is to trace the effects thereof person loss to the § defamed.” Restatement of Torts 621, p. a, Comment permitted defendant was show reputational that there was injury; no very but at the prevailing least, the rule was that at least nominal were to be awarded defamatory publication action- per performed able se. This rule vindicatory
“a by enabling function plaintiff publicly defamatory publication brand the as false. The salu- tary social value preventive of this rule is in character , permits it since person often expose defamed groundless defamatory character of a rumor before harm reputation to the has resulted therefrom.” Id. §569, p. Comment 166. applied
Similar rules to slanderous statements that were per actionable se.1 1 At law, common slander, libel, unlike per was se only actionable
when it dealt with
range
a narrow
of statements:
imputing
those
a criminal
offense, a venereal or loathsome and communicable disease,
improper con
duct of a lawful business, or unchastity of a woman. Restatement of Torts
*15
step
major
the first
was
v. Sullivan
York Times Co.
New
process of con-
seemingly
proved
irreversible
to
abe
in what
Under
stitutionalizing
and slander.
of libel
entire law
suing
public
for libel
official
a
case,
in that
rule announced
by proving
and
a false
longer
his case
make out
no
could
damaging publication.
liability and
not establish
He could
actually proved,
presumed
damages,
any
or
whether
recover
knowing
as a
proved
was defined
which
“malice,”
he
unless
disregard
atS.,
376U.
for the truth.
or a reckless
falsehood
damages
proof,
were
the usual
however,
Given
280.
damages.
punitive
including presumed
This
available,
years
overturning
was deemed
libel
judgment
200
law
in
implement
interest
necessary
the First
to
public
wide-open”
issues.
debate
robust,
“uninhibited,
applied
years
rule was
same
later, the
Three
at 270.
Id.,
termed
who were
plaintiffs
officials,but
not
who were
Publishing
388 U. S.
Butts,
public figures.
Co.
Curtis
(1967).
York
New
view that the
Justices took the
1971, four
publication
apply
concerned
wherever
Times rules should
though
general
interest, even
manner of
Metromedia,
person.
private
plaintiff
Rosenbloom
was a
majority.
not command
That view did
29.
Inc., 403 U. S.
(1974),
I judgment opinion York New Times. I joined also later extending decisions the New York Times standard to other situations. But I increasing came to have doubts about the soundness of approach the Court’s about assumptions some of the underlying it. I could not join plurality opinion in Rosenbloom, and I dissented asserting Gertz, that the common-law remedies should be private plaintiffs. retained for I remain convincedthat Gertz erroneously was decided. I also have become convinced that *16 improvident the Court struck an in balance the New York public’s Times case between the being fully in interest public informed about public officials and affairs and the competing interest of those who have been in defamed vin- dicating reputation. their country In a like people purport ours, where the to able govern through themselves their representatives, elected
adequate government information about their is of transcend- importance. ent intelligence That flow of deserves full First protection. Criticism and assessment of the performance public government officials general and of in subject penalties are not imposed by But law. these First Amendment values by are not at circulating all served false public statements of fact about contrary, officials. On the erroneous information They frustrates these values. are even more falsely disserved when the impugn statements the honesty of those men and women and hence lessen the confi- government. dence in As the “[TJhere Court said in Gertz: is no constitutional value in false statements fact. Neither the intentional lie nor materially the careless error advances society’s interest in wide-open’ ‘uninhibited, robust, de- public bate on issues.” 418 U. atS., 340. inYet New York public Times complaint cases, the official’s will be dismissed alleges he jury unless and makes knowing out case of a or proof, reckless falsehood. Absent such there bewill no if in his even favor, kind judgment or verdict jury false. The lie will admittedly publication challenged misinformed about public continue to be the public stand, because the putative recurringly happen This will matters. difficult to exceedingly satisfy is so burden plaintiff’s Even if the litigation. only by expensive discharged can be summary judgment loses on sues, he frequently plaintiff malice. of insufficient proof because jury gets never by are often overturned verdicts jury, before If he wins Furthermore, failure to malice. prove courts for appellate return a general will loses, likely jury the plaintiff when the publication no judgment there will be verdict in reality.2 foundation even it was without false, though was statement that the challenged is left to conclude The public in- being accurately Their chance of only after all. true was official’s himself to ability by is measured formed That is a decidedly unaided the courts. lie, counter Amend- the vindication of First on for depend reed weak malice, may jury case of it be that proving succeeds in plaintiff If the falsity bring separate verdicts on and malice. asked to jury will be falsity, event, plaintiff on but there could be a verdict favor In that favor, judgment no his but the him on malice. There would be against falsity and would tend to set the record would be a one verdict plaintiff’s name. clear the right and *17 courts, organs government, of the cannot might suggested that as It be logical consequence of the truth is. But the to discern what be trusted suits, all libel and slander that the First Amendment forbids that view is recovery suit, no unless the court finds the in each such there will be for course, factually perfect, no forum is at issue to be false. Of publication justification leaving whole classes defamed individ- that is not a but opportunity or a realistic to clear their names. We without redress uals responsibility affecting the of decisions the juries and the courts entrust say perverse indeed to that these bodies liberty persons. It is life and of fact in a defama- incompetent inquire into the truth of a statement are nothing discern in the Constitution which for- ease. I can therefore tion judicial that a statement is false —a de- plaintiff to obtain a decree bids a community prevent in the to clear his name and to cree he can then use already published. damage from a defamation further ment interests —“it is the rare case where the denial over original charge. takes the Denials, retractions, and correc rarely tions not are ‘hot’ prominence news, receive the original story.” of the Rosenbloom, U. S., at 46-47 (opinion J.); supra, Gertz, at 363-364 Brennan, (Bren dissenting). J., nan, by leaving
Also, the lie uncorrected, the New York Times plainly public rule leaves the remedy officialwithout a for the damage reputation. to his Yet the Court has observed that right protection individual’s good of his own name is a basic consideration system, of our constitutional reflect- ing concept “‘our basic dignity of the essential and worth every being concept human root decent —a system liberty.’” of ordered supra, quoting Gertz, at 341, (1966) Rosenblatt v. (Stewart, Baer, 383 U. S. con- J., curring). upshot is that the officialmust suffer injury, get judgment often cannot identifying the lie for very what it any, is, and has if countering little, chance of public press. lie The New York Times rule thus countenances two evils: first, public the stream of information about officials and polluted polluted
affairs is and often remains false reputation information; professional second, life plaintiff may destroyed by defeated be falsehoods that might have been avoided with a reasonable effort to inves- tigate facts. terms of the First Amendment and reputational grossly interests at perverse stake, these seem results.
Of course, the Court in New York Times could not have been unaware of these Despite ringing realities. our en- “wide-open” dorsement of and “uninhibited” debate, which literally protect taken would falsehoods of all we can- kinds, fairly giving not protection accused of constitutional false information as competing such, for we went toon find overriding justification constitutional for our decision. The constitutional interest in the flow of information about *18 very discovering thought strong, public to be affairs was very difficult, even with the best of the truth in this area weighed heavily those so efforts. These considerations thought speak public affairs were to who about write breathing they per- require room—that should be is, some long they misinform the as as act mitted to err and press unknowingly If recklessness. could without every possibly sizable mistaken be faced with injurious reputation, publication an to result would be degree self-censorship, might prevent unacceptable which prevent would also often libel, the occasional mistaken but timely thought information that is to be true but flow of press readily verified. The must therefore be cannot be privileged spread though in- information, false even negative formation has First value and is se- verely damaging reputation, encourage in order to the full might which otherwise be withheld. truth, flow subject Although reject- to similar observations. Gertz ing plaintiff the New York Times malice standard where the public figure, a is neither a officialnor there the Court deprived private plaintiff nevertheless of his common-law making recovery provide more difficult order to remedies, doing margin so, a for error. the Court ruled that with- proof negligence, plaintiff damaged by out of at least outrageous remediless, most very likely falsehoods would be and the lie go if
would uncorrected. And even fault were proved, damage reputation actual would have to be shown, if difficult, burden traditional libel law considered not discharge. impossible, For this reason Powell impose plaintiff proving would not on the burden of damages in the case now before us.
Although liability there was much talk about with- Gertz presuming damages, this, out all of fault and the unfairness in the name of Times, as was the case New York was done press purportedly to shield the Amendment, the First possibly intimidating writing public affairs from others about *19 damages liability. protecting But if press the from intimi- dating damages liability might lead to timidity excessive was driving the force behind New York Times and Gertz, it is evident that engaged the Court in severe overkill in both cases.
In New York Times, escalating instead of plaintiff’s proof burden of to an impossible almost level, we could have goal achieved our by limiting stated damages recoverable to a level that unduly would not press. threaten the Puni- damages tive might have been scrutinized as Justice Harlan suggested in supra, Rosenbloom, perhaps 77, or even entirely forbidden. damages Presumed reputation to might prohibited, have been or limited, as in Gertz. Had that course been taken and the common-law liability standard of been retained, the defamed upon proving official, falsity, could at least judgment have had a to that effect. reputation His would then be vindicated; and to the extent possible, the misinformation circulated would have been might countered. He enough perhaps have also recovered a modest amount, pay litigation
to expenses. his very At the least, the officialshould not required have been sat- isfy the actual malice sought standard where he damages no only but to clear his way, name. In this both First Amend- reputational ment interests would have been far better served.
We talking are not in these cases about mere criticism or opinion, but about seriously misstatements fact harm reputation by lowering another, him in the estimation community or persons to deter third associating from dealing with him. §559 Restatement of Torts necessary breathing speakers room for can be ensured by limitations damages; recoverable it does not also re- quire depriving many public figures room to vindicate reputations their by sullied false statements of fact. It could suggested be that even without large threat of damages press awards, defendants’ communica- pay having the actual unduly chilled tion will they commer- But other defame. those caused country dissemi- business of not enterprises in this cial they damage as a cause pay for the nating must information argue that the doing it is difficult business, cost press vigorous before a free not have did States United any event, was announced. York Times in New rule *20 protect the to was formulated Times standard New York the damages large chilling danger of numerous press from the New York Nothing rationale behind in the central awards. immunity establish from suits to an absolute demands Times figure public defamatory a about falsity misstatement of the a jury actual case of plaintiff make out cannot the where malice. re- have been should rules the common-law
I still believe public public or plaintiff official not a the tained where reputational the figure. undervalued the it, As I see Court to doubt I also come in have such cases. at stake interest muzzle assumption rules would easy common-law that the the premise accepting that the press. even Gertz But the press parties, private there protection in suits also needed requirements for modify common-law no need was proof of that liability burden establishing increase the and to authorizing judgment at least to secure must be satisfied recovery within additional sums nominal might set.3 have the Court that the limitations to follow interesting declines that Justice It is Powell thought the deci- I that approach had in this case. Gertz any that involve to reach cases intended was Gertz sion reputation, injurious whether fact false statements it publicly or not privately and whether or is made statement importance. public implicates a matter Powell, Justice a matter involved distinguishes as a case Gertz however, S., dissent, U. my suggestion unresponsive to The Court was judgment of and obtain a prove be able 391-392, plaintiff should that the fault. kind having to establish without falsehood an concern, Wisely, element absent my here.
view, Justice
application
does not rest his
of a
Powell
different rule here on a distinction drawn between media
and nonmedia defendants.
agree
On that
I
issue,
with
gives
the First Amendment
no more
Brennan
protection
press
to the
in defamation suits than it does to
exercising
others
speech.
their freedom of
None of our
cases affords such a
contrary,
distinction; to the
the Court
rejected
every
has
it at
turn.4
rejected
It should
again,
particularly in this context, since it
give
no
makes
sense to
protection
publishers
most
to those
who reach the most
pollute
readers and therefore
the channels of communication
with the most misinformation and do
damage
the most
private reputation.
If
distinguished
Gertz is to be
from this
ground
case, on the
applies only
that it
allegedly
where the
publication
false
general
deals with a
matter of
importance, then
publication
where the false
does not deal
with such a matter,
apply
common-law rules would
whether the defendant is a member of the media or other
*21
public disseminator or a nonmedia
publishing
individual
privately. Although
speaks
only
of the
Justice
Powell
inapplicability of the
respect
Gertz rule with
to
and
4We explained in Branzburg v. Hayes,
(1972)
As any contribution measurable has in case made that decision its announce- reputational since values First Amendment great press deal the it has saved that I sure Nor am ment. the burden decision, Times money. York New the Like of complicated long discov- plaintiffs meet invites must that workings investigation of the involving ery detailed developed, mind story state press, a news how publisher. Lando, Herbert See reporter and very expensive. litigation is That kind U. S. financially if press off no suspect would be worse that I judiciary apply was if the rules were common-law kept bounds. within awards be that to insist careful damages problem also be would legislative to the solution A very likely plaintiffs are appropriate. libel Moreover, since damages, clearing than names their interested more or be unfair limiting deter would recoveries I that doubt press, as that I assume cannot event, to them. into powerful be intimidated it will is, as successful journalistic it standards withholding decent news true. to be believes applied in is to be question us is Gertz whether before it should reasons, I believe either two case. For holding and be- the Gertz I unreconciled am First,
not. Second, as Pow- overruled. it should be lieve that defamatory publication in this case does indicates, ell Consequently, importance. matter with not deal judgment. Court’s I concur *22 Marshall, Justice whom with Brennan,
Justice
dissenting.
join,
Stevens
Blackmun,
and Justice
Justice
proper applica-
question
of
a difficult
This case involves
(1974), to
S. 323
Welch, Inc., 418 U.
v. Robert
of Gertz
tion
from that
type
remove
at
reporting
some
of
credit
—a
gave
which
explicit
first
rise to
First Amendment restrictions
on state defamation
produced
law—and
diversity
has
of
opinions,
considered
speaks
none of which
for the Court.
plurality opinion
affirming
judgment
Justice
Powell’s
apply
below would not
the Gertz
presumed
limitations on
punitive damages to this case;
rather,
three Justices
joining
opinion
would hold that the First Amendment
requirement of actual malice—a
convincing
clear
showing
knowing
falsehood or
disregard
reckless
for the truth—
application
should have no
in this defamation action because
subject
purely
private
involved
concern and
extremely
was circulated to an
limited audience. Establish-
ing
exception,
this
opinion
reaffirms Gertz for cases
involving
public
matters of
concern, ante, at
756-757,
reaffirms New York Times Co. v. Sullivan,
expression. The
the solid
obscure
however,
idiosyncratic
not,
should
facts
principles
Times Co. v. Sullivan
of New York
allegiance the
jurisprudence ofthis Court. See
in the
command
continue
States,
Corp.
the United
v.
Union
Consumer’s
Bose
also
of
485
U. S.
466
Inc.,
I
that the
the
held
v. Sullivan
Court
York Times Co.
New
speak good
from the
all
faith
shields who
First
unintentionally
judgments for
libel
of unrestrained
threat
Recognizing
libel
that
official.
criticism of
false
governmental regulation
content of
of the
like all other
law,
immunity
constitu-
speech,
no
from
“can
talismanic
claim
by
[and]
measured
standards
must be
limitations
tional
satisfy
at
the Court
S.,
269,
U.
Amendment,” 376
the First
developments,
salutary
at
id.,
common-law
from
drew
principles,
unquestioned First Amendment
and
20,2
n.
and
malice
the now-familiar actual
to formulate
273-274,
at
id.,
in free
is inevitable
“erroneous statement
Because the
test.
expres-
protected
[it]
if
freedoms of
the
. . . must be
debate
they
‘breathing space’
.
‘need .
.
the
are to have
sion
supra, at
Sullivan,
York Times Co.
New
to survive.’”
opinion
early
in an
of the
expressed as
as 1788
principles
The
were
Supreme
Pennsylvania
Court:
of Penn
rights,
the bill
and Constitution
meaning
is the
of
then
“What
declare,
press
shall not be
‘That the freedom
sylvania,
they
when
every person who
presses shall be free to
restrained,’
printing
the
and ‘that
any part of the
legislature
proceedings
to examine
undertakes
every
right
investigating
[T]hey give to
citizen
. .
government?’.
....
business
are entrusted with
conduct of those who
every
pub
man to
amply
permitting
liberty
press
secured
true
dignity
society
enquire
peace
and
opinions;
it is due to
lish his
but
distinguish
those
publications, and to'
between
such
into the motives of
reformation,
solely
pub
eye
with an
to the
meant for use
which are
merely
defame. To
to delude and
good,
those
are
lic
which
intended
any good government
should
impossible that
description,
it is
latter
Oswald, Dall.
Respublica impunity.”
protection
afford
(footnotes omitted).
quoting
271-272,
NAACP v. Button,
Our First Amendment libel decisions in the last two dec-
large
ades have in
measure been
explore
an
effort
the full
ramifications of the New York Times Co.
princi-
v. Sullivan
ples. Building on the extension of
“public
actual malice to
figure” plaintiffs in
Publishing
Curtis
Co. v.
388
Butts,
U. S.
(1967),
130
the Court in Rosenbloom v. Metromedia, Inc.,
403
(1971),
U.
29S.
and Gertz v. Robert
supra,
Welch, Inc.,
largely
focused
defining
the circumstances under which
protection of the central First Amendment value of robust
public
debate of
issues
plaintiffs
should mandate
to show
actual
judgment
malice to obtain a
damages;
and actual
Court settled on a
requiring
rule
actual
prereq-
malice as a
recovery only
uisite to
brought
by public
suits
or
officials
public figures. 418
S.,U.
recog-
344-346.3 We have also
nized, however, that the First
requires signifi-
protection
cant
from defamation law’s
range
chill for a
of
expression far
speech
simply
broader than
pure politi-
about
cal issues.
Time,
See
Inc.
(1967)
v. Hill,
welfare complex of strands the web of we deal with “When *25 up speech, operation make free freedoms which sought is re- effect of the method which analysis judg- subjected to and critical must be close strained particular light in circumstances to which it is ment supra, general applied.” Speiser Randall, at 520. This unnecessarily regu- proscription against content-based broad permeates jurisprudence. lation First Amendment governmental than effort to law, libel no less other regulate speech, therefore use finer instruments States must protected expression. adequate space for Cf. Cen to ensure Corp. v. Public tral Hudson Electric Service Comm’n Gas & (1980)(restriction “may ex York, New 447 U. S. serves”); only SEC, far as the interest it Lowe v. tend so (“[T]he concurring judgment) in First ante, at 234 (White, J., speech only they permits are restraints on when governmental narrowly legitimate in tailored to advance terest”). ready availability applica and unconstrained The punitive damages presumed in libel actions is too tion of satisfy regulatory Amend this First instrument to blunt implicate alleged principle, does not even when the libel ment directly type York Times at issue New Co. Sullivan. Justice Harlan made precisely point
Rosenbloom: “At a minimum, even in the purely private libel I area,
think the First Amendment should be construed to limit imposition punitive damages to those situations where proved. actual malice is typical This is the stand- employed ard in assessing anyone’s liability for damages where the underlying aim of the is law to com- pensate for actually harm caused,. .. and no conceivable state justify interest could imposing a harsher standard on the exercise of those given explicit are freedoms protection by the First Amendment.” 403 U. at S., (dissenting opinion) (emphasis added). See also id., 65; New York Times Co. v. Sullivan, 376 S.,U. at 269. perception Harlan’s formed the cornerstone of the analysis
Court’s Requiring Gertz. “that state remedies defamatory for falsehood reach no farther than necessary protect legitimate interest involved,” the Court found “necessary it to restrict plaintiffs defamation who do not prove knowledge falsity disregard reckless for the truth compensation injury.” actual U. S., at 349. explained Court that state rules authorizing punitive damages juries conferred on “largely uncontrolled discretion” to assess “in wholly unpredictable *26 bearing amounts no necessary relation to the actual harm caused.” Id., at 349-350. damages particular Punitive in were “wholly found to be irrelevant to the state interest” be- “[t]hey cause compensation are not injury.” for Id., at 350 (emphasis added). For these reasons, the Court in Gertz specifically held that the award of punitive damages on less showing than a of actual malice is not a nar- rowly tailored means legitimate to achieve the purpose state protecting of reputation private the persons: of the common- approach, law said the “unnecessarily Court, compounds the falsehood defamatory for liability of any system of potential free- Amendment of First exercise vigorous the inhibit added).4 Id., (emphasis at 349 doms.” a pub of criticism involves libel alleged an when Thus, robust to nurture need the figure, a public or lic official all state that requirement issues public debate of to require coalesce tailored narrowly be of speech regulation When the recovery. a prerequisite as malice actual these especially that falls outside speech involves libel alleged per Constitution that the have held we categories, important dam for actual compensate leeway significant mits States tailored narrowly of requirement to reputation.5 age respect with reasoning applied have its Gertz, we in decision Since areas in other actual harm compensation for of damages excess (1979); 42, 48-52 Foust, 442 S.U. v. Workers See, g., e. Electrical law. (1981). These Concerts, Inc., 270-271 453 U. S. Fact Newport v. by achieved alleged deterrence that “the Gertz, recognize cases, like as the costs —such outweighed likely damages awards punitive con chilling of desirable and the unnecessary litigation of encouragement on which rule, least standards at when flowing from duct — awards 30, 59 Wade, U. S. Smith ill-defined.” are are based (Court opinion) id., 46-47 at dissenting). (1983) (Eehnquist, J., See only awarded may view prevailing (noting or motive evil the defendant’s of outrageous, because that is ‘“conduct Restatement others,’” quoting rights to the of indifference his reckless S., deleted)); at 93-94 § 908(2)(1979) 461 U. (emphasis (Second) Torts U. S. Corp., 464 Kerr-McGee dissenting); Silkwood (O’Connor, J., id., at 276 J., (Blackmun, dissenting); id., 260-261 (1984); 244-245 dissenting). (Powell, J., interest general or public issues times involve might at Such First important implicate thus Rosenhloom meaning of within the held in Gertz cost, the Court justify To interests. Amendment reputation private in protecting interest an enhanced had the State case-by- inherent difficulties First independent cited the speech concerns mattér of whether judicial determination case in Gertz The decision 3, supra. n. S., at 344-346. See interest. defam allegedly Speech justification. alternative susceptible of an is also implicate matters likely to less far generally be person will private ing a public officials defaming allegedly than will public importance judicial case-by-case inherent problems light figures. *27 regulatory measures, always however, mandates at least a showing proscribes of fault and presumed the award of
punitive damages showing less than a of actual malice. It judgment has remained the of the Court since Gertz that this comprehensive two-tiered structure best accommodates the values of the speech constitutional guarantee free and the States’ interest in protecting reputation.
HH I—I question presented The here is narrow. par- Neither the ties nor the courts suggested below have respondent that Greenmoss Builders required should be to show actual malice judgment obtain a and actual compensatory damages. parties Nor do question the requirement the of Gertz that respondent must show fault to judgment obtain a and actual damages. only question presented is jury whether a award of damages based on less than showing of actual malice is constitutionally permissible. provides Gertz forthright negative preserve answer. To jury the verdict in this case, opinions therefore, the of and Justice White away have cut Powell protective mantle of Gertz.
A Relying analysis on Supreme the Vermont Court, respondent urged pruning be accomplished by restricting applicability of Gertz to cases in which defendant is a entity. “media” Such a distinction is irrecon- cilable with the fundamental First principle “[t]he inherent worth . . . in terms of capacity its informing public depend does upon not identity its source, corporation, whether association, union, or indi- vidual.” First National Bank Boston v. Bellotti, 435 determination of what is in interest, the Court’s result could be explained as a decision that the cost of case-by-case evaluation could be avoided significant without chilling involving matters of importance. *28 782 in lurk difficulties Amendment (1978). First 765, 777
S.U. generate.6 would an approach such questions definitional an anachronism.7 be born likely would distinction And the 6 illustrates Bradstreet & petitioner Dun attempt to characterize An magazine, newspaper, in a proceedings judicial account of Like an point. particular a reports petitioner’s in broadcast, a statement or news timely event con news a report a of bankruptcy is filed for company has dis to collect organized by a public business of veyed to members why petitioner should it is not obvious Thus information. such seminate print than do established in the First Amendment protection find less characterized nonetheless Supreme Court The Vermont media. electronic isit because protection less entitled to defendant petitioner as a nonmedia number sub to a limited selling information financial “in the business 66, 73, 143 Vt. services.” [its] for fees paid substantial who have scribers distinc a clear (1983). “[t]here is added that The court 414, 417 461 A. 2d consumption news disseminates which publication a tion between selective, finite audi to a information specialized provides and one which Ibid. ence.” can be principles drawn First with line consistent No clear “special- is information petitioner’s That criteria. these on the basis distinguishes hardly fees” pay “substantial that its ized” or subscribers surely on fall that would many publications from reports articles these to draw. seeks Supreme Court line the Vermont side the “media” publications interest, and few universal are of published New statements is any metropolitan daily fare of charge. Much without are distributed fee. selective, pays a finite audience for which specialized information widely differently a more than petitioner to treat reason Nor is there number of subscribers.” “a limited has it publication because circulated injuri- to statements protection increase Indeed, paradoxical it would potential to audience, hence their the size of their reputation as ous to Inc., 465 U. S. Magazine, Keeton Hustler injure, Cf. grows. (1984). structure and economic technological in the Owing to transformations convergence increasing an industry, has been there of the communications Pool, The New Tech “media” and “nonmedia.” might be labeled of what Cost, What’s News: at Lower nologies: Promise of Abundant Channels Pool, Technol also I. Society See in American The Media Policy Commission, Media (1983); Trade U. S. Federal Freedom ogies of on Telecom (1979); Change Subcommittee Legal Technology and Session: Committee Protection, House and Finance munications, Consumer The Status Transition: Commerce, Telecommunications Energy and
Perhaps
importantly,
argument
most
that Gertz should
be limited
misapprehends
to the media
our cases. We
protect
press
vitality
to ensure the
of First Amendment
guarantees.8
implies
This solicitude
no endorsement of the
principle
speakers
press
other than the
deserve lesser
protection.
First Amendment
“In
protected
the realm of
speech,
legislature
constitutionally disqualified
from
dictating
speakers
may
. . . the
who
address
issue.”
First National Bank
supra,
Boston Bellotti,
at 784-785.
*29
Bridges
See
(1941).
v. California,
The free
equal right
each citizen an
self-expression
participation
and
self-government.
in
g., Carey
See, e.
v. Brown,
(1980);
461 U. S. is willing concede Justice Powell that such speech some receives First Amendment protection, but on balance finds that such protection does not reach so far as to restrain the state interest in protecting reputa- tion through presumed and punitive damages awards in state defamation actions. Ante, at 760-761. Without explaining -is what a “matter of public concern,” the plurality opin- ion to serve proceeds aup smorgasbord of reasons why the speech at issue here is not, ante, at 761-762, and on this basis affirms the Vermont courts’ award of presumed and punitive damages.
In professing allegiance to Gertz, the plurality opinion protests too much. As Justice White correctly observes, departs from completely the analytic Powell framework of that case: “Gertz was intended to result reach cases that involve any false . statements . . whether or not [they] implicate] a matter of public importance.” Ante, at 772 (concurring Even judgment).11 accepting notion that a distinction can and should be drawn between matters 11One searches Gertz single vain word to support the proposition presumed limits on punitive damages only speech obtained when public involved matters of concern. Gertz could not grounded have been such premise. placing Distrust of in the power courts the to decide what was of concern was precisely the rationale Gertz offered for rejecting the plurality Rosenbloom approach. S., at 346. It would have been incongruous for the go Court on to circumscribe the protection against presumed punitive damages by judi reference ato cial judgment as to whether the at issue involved matters of points concern. At several the Court in Gertz perfectly makes clear the restrictions of apply were to in all cases. Id., 349-350. Indeed, opinion Justice Powell’s today fairly embracing read as approach of the Rosenbloom plurality deciding when the Constitution limit should state defamation law. imposed, however, limits are less stringent than suggest by those the Rosenbloom plurality. ap- Under the *31 proach today’s of plurality, speech about matters public general inter- est only receives protections the Gertz against presumed unrestrained punitive damages, not the full New York Times Co. v. protections Sullivan against any recovery absent showing of actual malice. purely private public concern, how- concern and matters analyses presented both Justice ever, Powell by virtue of Both, terms. fail on their own Justice White impoverished propose they defini- an case, hold this what public with that is irreconcilable “matters of concern” tion of reporting principles. at issue The credit First Amendment public subject surely matter of sufficient involves here comprehensive protections require Gertz. concern speech appropriately as a matter of characterized this Were only private of the Gertz moreover, the elimination concern, punitive damages still would on restrictions requirements. First Amendment violate basic (1) voting to affirm the dam- five Members of Court provided guidance ages no as case have almost award protected “matter of concern.” constitutes a to what nothing opinion in- all, at but his does offers Justice White solely subject matter the distinction turns on dicate that expression conditions of and not on the extent or of the expression. Ante, at 773. of that dissemination Justice appear that would to focus a rationale adumbrates Powell opinion subject primarily relies on the fact matter.12 The “solely in the individual interest at that the issue was specific speaker audience,” ante, business at and its of the added). explicitly advertising, Analogizing (emphasis rely part on the fact communi appears to Powell also Ante, analysis at 762. Given that his and confidential. cation was limited ante, 761-762, report, at it is subject of the credit also relies on the matter exactly role the nature and extent of dissemina decipher what difficult to subject analysis. matter But because plays tion in Justice Powell’s con properly as a matter expression at issue is understood confidential infra, 791-793, may this element of cern, it well be that see opinion is con Powell’s ity as far as Justice is crucial to the outcome thinks this words, may that Justice Powell it cerned. other public welfare because the contribute to particular expression could not factor does not suffice to save receive it. This public generally does not analysis. n. See infra. *32 opinion also states that reporting credit “hardy” is and “solely motivated profit.” the desire for Ibid. These analysis two strains of suggest that is Powell excluding subject matter reports of credit from “matters concern” speech because the predominantly in the realm of matters of economic concern. evaluating subject expression, matter of this Court consistently
has
rejected
argument
that
is entitled
to diminished First
protection
Amendment
simply because it
concerns economic matters or is in the economic interest of
speaker
or the audience.
g.,
e.
Joseph
See,
Burstyn,
Inc. v. Wilson, 343 U. S.
(1952);
495, 501-502
American Fed
eration
Swing,
Labor v.
312 U. S.
(1941);
325-326
Thornhill v. Alabama, 310 U. S.
(1940);
88, 101-103
see also
Abood v. Detroit Board Education,
Speech about commercial or economic matters, even if not directly implicating “the meaning central of the First Amend- ment,” 376 U. S., at important part is an of our discourse. The Court made clear in the discussing context of labor relations in Thornhill v. supra: Alabama, recognized “It is satisfactory now that wages hours and working conditions industry bargaining position possible which makes these importance have an which is not less than the interests of those the busi- industry ness or directly concerned. The health of the may as unborn yet those and of generation present a single the practices matters, on these depend a whole upon repercussions economic have factory may marketing. systems widespread and affect region *33 the on legislation federal and at state glance The merest argument of the force the demonstrates subject private local or of mere not matters are relations labor the conditions concerning Free discussion concern. us appears of labor disputes causes the and industry the use of intelligent and the effective indispensable of destiny to shape government of popular processes 102-103. S., at society.” industrial modern step we make when we the choices As Thornhill suggests, we of what products well be may booth voting into the social daily of economic myriad from the have learned (“Freedom of 102 id., at us. See that surround phenomenon nation, in this function its historic fulfill if it would discussion, or is needed information issues about which all must embrace with cope society of the members to enable appropriate their period”).13 exigencies 13 restricting denying arguments for rejected Similarly, we have advertising advertising ground protection
First advertising pure even Recognizing that public concern. is not a matter free “the interest, stated that we have may affected with well be to the formation indispensable ... information flow of commercial regulated system ought to be economic] [our how opinions as to intelligent Consumer Virginia Citizens Pharmacy Bd. Virginia or altered.” Virginia, Bigelow also Inc., 748, See Council, 425 U. S. advertisement (“Viewed entirety the (1975) in its [abortion] U. S. audi value to a diverse interest potential conveyed information offered”). The in need services possibly only to readers ence —not has preferences attempts influence consumer political aspect of potential Diego, 453 U. S. Metromedia, Inc. v. San recognized. also been See city de (“May the concurring judgment) (1981) (Brennan, J., 538-539 message ‘Be a with billboard Workers Automobile cide that a United there ‘commercial’ cars’ is buy Japanese-manufactured patriot not—do regulating commercial it?”). latitude for greater state The fore forbid reporting credit of Dun & Bradstreet falls within reasonable “public definition of concern” consistent with precedents. our reliance on the fact that Powell’s Dun & publishes Bradstreet reports credit profit,” “for ante, at 762, is wholly unwarranted. again Time and we have made clear that loses none of its protec- constitutional tion “even though it is carried in a form that is ‘sold’ for profit.” Virginia Pharmacy Bd., 425 U. S., 761. See also Smith v. California, 361 U. S. (1959); 147, 150 Joseph Burstyn, Inc. v. supra, Wilson, at 501. More importantly, an announcement of bankruptcy of a local company is in- formation of potentially great concern to residents of the community company where the is located; like the labor dis- pute at issue in Thornhill, bankruptcy such a “in single fac- tory may repercussions have economic upon region.” a whole knowledge And solvency about and the effect prevalence *34 bankruptcy of certainly would inform opinions citizen about questions of regulation. economic It is suggest difficult to that a bankruptcy is subject not a public matter of concern when requires federal law judicial invocation of mechanisms to effectuate it and makes the fact of the bankruptcy a matter public of record. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469
Given that subject matter of credit reporting directly implicates matters of concern, balancing analysis today the Court employs properly should lead to the conclu- sion type that the expression of here at issue should receive protection First Amendment from chilling potential of unrestrained damages in defamation actions.14 advertising is instead a “greater function of objectivity and hardiness.” Virginia Pharmacy Bd. Virginia v. Citizens Consumer Council, Inc., supra, at n. 24. 14Justice Powell purports to draw from Connick v. Myers, 461 U. S. (1983), 138 a test for distinguishing matters of public concern from matters private
of concern. This reliance perpetuates a definition of “public con-
(2)
prop
reporting were
subject
of credit
matter
if the
Even
and Jus
of
terms
erly
considered—in
White
private
discourse,
matter of
purely a
Powell —as
tice
expression
range of valuable
within
fall well
would
protection. Much
demands
Amendment
First
for which
directly
issues re
involve
not
expression that does
permit some
cases do
protection. Our
significant
ceives
category
protection
one
afforded
degree of
in the
diminution
“Commer
matters.
commercial
economic
about
of
“[do] more
no
as
speech”
advertisements
cial
—defined
Pittsburgh Press
transaction,”
propose a commercial
than
Relations, 413 U. S.
Human
Pittsburgh
Comm’n
v.Co.
closely regulated
other
than
(1973) may more
—
speech, however, re
Even commercial
types
speech.
protection. Zauderer
Amendment
First
substantial
ceives
Supreme
Ohio,
Court
Disciplinary Counsel
Office
Virginia
Pharmacy
Cit
Virginia
(1985);
Bd.
471 U. S.
(“So long we
as
supra, at
Inc.,
Council,
Consumer
izens
economy,
enterprise
the allo
predominantly free
preserve a
through
made
large
will be
measure
resources
our
cation
end, the
To this
...
decisions.
private-economic
numerous
indispensable”).
is
information
of commercial
flow
free
speech”
has
this Court
as
reporting
not “commercial
Credit
reporting
consid
were so
credit
Even if
term.
defined
protections
substantial
to the
entitled
still be
it would
ered,
category.
Zauderer,
See
affords
the First
concurring
id.,
657-658
637;
at S.,
(Brennan,
J.,
*35
the
view,
dissenting
part).
either
Under
in
part
in
protec
receive
case should
in this
expression
issue
at
presumed potential
chilling
unrestrained
from
tion
actions.
defamation
in
awards
and with
precedents
consistent
our
with
wholly
of accord
out
cern”
(Bren-
id.,
165,
n. 5
at
concept. See
understanding
common-law
its distinction
limited
explicitly
Moreover, Connick
nan, J.,
dissenting).
em-
government
aof
the “context”
concern
private
between
Id.,
n. 8.
at
situation.
ployment
system predicated
Our economic
assumption
on the
human
improved
welfare will be
through informed decision-
making.
respect,
In
ensuring
this
broad distribution of accu-
rate
comports
financial information
with the fundamental
premise
First Amendment
possible
that “the widest
dissemi-
nation of information
antagonistic
from diverse and
sources is
essential to
public.”
the welfare of the
Associated Press v.
United States,
“The
of the First
except
Amendment does not
speech
private
directed
decisionmaking.
economic
Certainly
speech
such
regarded
could not be
as
im-
less
portant
political expression.
than
When
immersed
free flow of
private
commercial information,
sector deci-
sionmaking is at least as effective an institution as are
governments
our various
furthering
the social interest
obtaining
general
the best
allocation of resources. . . .
“The financial
data circulated
Dun & Bradstreet,
part
Inc., are
of the fabric of national commercial
communication.” Dun & Bradstreet, Inc. v. Grove, 404
(1971)
U. S.
(Douglas,
898, 905-906
dissenting
J.,
from
certiorari).
denial of
Douglas
further
“[presumably
noted that
the credit
reports published by
petitioner
through
facilitate
price system
improvement
of human welfare at least as
much
underlying
as
disagreement
did the
in our most recent
opinion,
libel
Rosenbloom v. Metromedia, Inc.,
The credit of Dun & Bradstreet bear few of the speech earmarks of might commercial entitled rigorous protection. somewhat less every case in which permitted we have regulation more extensive state on the basis of a commercial being rationale regu- *36 792 buy goods and advertising or sell pure offer was
lated
—an
selling.16
buying
re-
encouraging
Credit
such
or
services
good
a
or serv-
for
advertisements
ports
not commercial
are
product.
been
buy
We have
a
proposal
or sell such
a
ice or
speech”
extending
“commercial
extremely chary
about
category of
narrowly
beyond
circumscribed
doctrine
vitally important
bewill
advertising
often
because
profit
interests
because
advance economic
uttered to
rapidly
hardy dissipates
when
making such
motive
Compare
&
advertising.
Hudson Gas
Central
speech not
is
York, 447
New
Corp.
Service Comm’n
v. Public
Electric
of
v. Public
(1980),
Edison Co.
Consolidated
with
557
U. S.
(1980).
S. 530
York, 447 U.
New
Service Comm’n of
of
law
regard
common
noting
that the
in this
It is worth
66,
143
apparently
Vermont,
Vt.
although
not of
States,
most
privilege
(1983),recognizes qualified
419
414,
2d
461 A.
76,
Maurer, Common
reports
here. See
at issue
like that
Reporting Act, 72 Geo.
the Fair Credit
Defamation and
Law
typically precludes
privilege
99-105
L. J.
defamatory
without
information
recovery
credit
for false and
proof
is
which
of
showing
malice, a standard
faith
of bad
according
Times formulation.
York
the New
defined
often
Inc., 465
Bradstreet,
g.,
Dun &
Datacon, Inc. v.
e.
See,
1979).
(ND
thus
The common law
Supp.
Tex.
708
F.
susceptible
quite
reporting
to libel’s
recognizes
is
that credit
worthy
respect.
learning
of
accumulated
chill; this
16
Supreme
Disciplinary Counsel
Zauderer v.
g.,
e.
See,
of
Office
Corp., 463
Bolger Young Products
Ohio,
(1985);
v.
626
471 U. S.
Court of
J.,
R. M.
191
advertising); In re
455 U. S.
(1983)
(contraceptive
S. 60
U.
Metromedia,
Diego, Inc. 490
San
S.
(1982)
advertising);
(lawyer
Gas & Electric
advertising); Central Hudson
(commercial
(1981)
billboard
(ad
(1980)
York,
New
557
447 U. S.
Comm’n
Corp. v. Public Service
(1979) (optome
Rogers, 440
S.
electricity); Friedman
U.
vertising (1978)
Assn.,
Even if characterization of the credit Powell’s at reporting issue here were accepted in its entirety, his opin ion would have done no more than demonstrate that speech is the equivalent of commercial speech. The opinion, after all, on relies to analogy advertising. Credit reporting is said to be hardy, motivated by desire for profit, and rela tively verifiable. Ante, at 762. But this does not justify the elimination of restrictions presumed and punitive dam ages. State efforts to regulate commercial speech the form of advertising must abide the by requirement that the regulatory means chosen be narrowly tailored so as to avoid any unnecessary of chilling protected expression. See Zauderer, supra; Virginia Pharmacy Bd. Virginia Citi v. zens Consumer Council, Inc., supra; Central Hudson Gas & Electric Corp. v. Public Service Comm’n New York, of supra.16
The Court in Gertz specifically held that unrestrained pre- sumed and punitive damages were “unnecessarily” broad, 16Indeed Justice Powell has chosen particularly inapt set of facts as a basis for urging a return to the common law. Though the individual’s interest in reputation is certainly at the core of notions of dignity, human ante, at 757-758, citing Rosenblatt v. Baer, 75, (1966) 383 U. (Stew S. 92 art, J., concurring); see Paul Davis, v. 424 U. 693, (Bren S. (1976) nan, J., dissenting), reputational the interest stake here is that corporation. Similarly, that this is solely commercial in nature un dercuts argument presumed that damages should be unrestrained in actions like this one because actual harm 'willbe difficult prove. to If the credit report is viewed as commercial expression, proving that actual dam ages occurred is easy. relatively For instance, alleged an libel concerning a bank’s may customer cause the bank to lower the credit limit or raise the interest rate charged that customer. The commercial context not does in crease the need for damages, but if anything reduces the need presume harm. At worst the commercial damages by caused such ac tion should be no more difficult ascertain many than other traditional elements of tort damages. See, g., e. Russell City Wildwood, 428 F. (CA3 1176, 2d 1970) (future earnings); Los Angeles Transit Seffert Lines, 56 498, Cal. 2d 509, 364 (1961) P. 2d (Traynor, J., dissent ing) (pain and suffering). legitimate interests. state to the in relation atS., punitive dam- action in a defamation held Indeed, Gertz “wholly compensate, were designed and not to ages, chill Ibid. interest. valid state furtherance irrelevant” weighing these reach conclusions did not The Court strength against strength interest the state recognized Rather, Court interest. First Amendment regulatory that chill principle measures applied necessary to serve than protected no broader opinion plurality legitimate interest asserted. state at issue interest recognizes, the state today must, that *38 as it “irrele- was in Gertz. What at issue to that here is identical requirement and the irrelevant, must still vant” Gertz necessary is no than regulatory be no means broader that the simply equivalent of speech is applicable if the even less puni- presumed and speech. unrestrained Thus, commercial type speech of First must run afoul tive guarantees.17
(3) self-government,” Garrison “the essence if not at Even (1964), expression at 64, 74-75 379 U. S. Louisiana, important our discourse both in this case issue might eco- be the private That its motivation welfare. our speaker not diminish listeners does nomic interest Edison Co. Consolidated value. See First Amendment its regula requirement analysis apply fails Powell’s particular “This point opinion reads: At one narrowly tailored. tion be . the when . . special protection no reporting] warrants [in interest credit reputa damaging to the victim’s business clearly wholly false and speech is course, speech false intrinsi is not that Ante, point, of at 762. tion.” Gertz, S., burden but see cally protection, deserves Thus, speech. potentially chills truthful false ing of unintentional speech must resulting false from compensating injury state interest this deleterious narrowly tailored avoid are by means that be vindicated result.
v. Public Service Comm’n New York, 447 U. S. Whether or not such speech is sufficiently central to First Amendment values to require actual malice as a standard liability, this speech certainly falls within the range that Gertz sought protect from the chill of unrestrained presumed and punitive damages awards.18
Of course,
the commercial context of Dun & Bradstreet’s
reports is relevant
to the constitutional analysis insofar as it
implicates the strong state interest “in protecting consumers
and regulating commercial
transactions,” Ohralik v. Ohio
State Bar Assn.,
regulation the States’ context, libel the And in reports.19 credit false by. served is reputation in protecting interest regulatory damages compensatory actual for recovery permitting rules deterring interest further Any fault. of showing a upon imposi- judicial case-by-case through defamation potential than on less awards damages and punitive tion of presumed on a toll high too exacts simply malice actual showing a Builders Accordingly, Greenmoss values. First Amendment it can damage actual for recover to permitted be should false Bradstreet’s & negligently Dun from resulted show to malice actual show required should but report, credit jury Because damages. or punitive receive we principles, these with accordance not instructed was incon- not proceedings further for remand reverse would opinion. with sistent Reporting Fair Credit and the Defamation Law Maurer, Common See (1983): 95, 126 L. J.
Act, Geo. upon damages for actual compensated may be Gertz, plaintiffs “Under a damages, punitive defendant; obtain fault establishing Fair [of 1681o and 1681n malice. Sections must demonstrate plaintiff principles. these constitutional with consistent are Reporting Act] Credit showing upon damages recovery of actual provides 1681o Section fault. requirement Gertz satisfies presumably which negligence, Act. violation for willful authorizes 1681n Section depends standard malice to Gertz’s equivalent 1681n section Whether willfully follow to fail possible to be it consider would court whether disregard for reckless manifest yet not procedures reasonable test, so categorical aas appears unworkable a fine distinction truth. Such princi- with the as harmonious regarded likely be 1681n would section protection degree provide appears Thus, the Act ples of Gertz. *40 doctrine” amendment first currently under required for commercial omitted). (footnotes