GARRISON v. LOUISIANA.
No. 4.
SUPREME COURT OF THE UNITED STATES
Argued April 22, 1964. — Restored to the calendar for reargument June 22, 1964. — Reargued October 19, 1964. — Decided November 23, 1964.
379 U.S. 64
Jack P. F. Gremillion, Attorney General of Louisiana, reargued the cause for appellee. With him on the briefs were M. E. Culligan and John E. Jackson, Jr., Assistant Attorneys General.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellant is the District Attorney of Orleans Parish, Louisiana. During a dispute with the eight judges of
“The judges have now made it eloquently clear where their sympathies lie in regard to aggressive vice investigations by refusing to authorize use of the DA‘s funds to pay for the cost of closing down the Canal Street clip joints . . . .
“. . . This raises interesting questions about the racketeer influences on our eight vacation-minded judges.”2
stands in such a relation to the former as to afford a reasonable ground for supposing his motive innocent.
“(4) Where the publication or expression is made by an attorney or party in a judicial proceeding.”
I.
In New York Times Co. v. Sullivan, 376 U. S. 254, we held that the Constitution limits state power, in a civil action brought by a public official for criticism of his official conduct, to an award of damages for a false statement “made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U. S., at 279-280. At the outset, we must decide whether, in view of the differing history and purposes of criminal libel, the New York Times rule also limits state power to impose criminal sanctions for criticism of the official conduct of public officials. We hold that it does.
Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws, and therefore should not be subject to the same limitations.3 At common law, truth was no defense to criminal
would not be approved, and expressed doubt as to the legality of such a use of the Fund under the State Constitution. A few days later, on November 1, 1962, the judge, now retired, who had turned down the original motion issued a public statement criticizing appellant‘s conduct of the office of District Attorney. The next day, appellant held the press conference at which he made the statement for which he was prosecuted.
“In most cases, the connexion between cause and effect exists between the subject of this chapter and that of a subsequent one — Of Duels. Defamation, either real or supposed, is the cause of most of those combats which no laws have yet been able to suppress. If lawgivers had originally condescended to pay some attention to the passions and feelings of those for whom they were to legislate, these appeals to arms would never have usurped a power superior to the laws; but by affording no satisfaction for the wounded feelings of honour, they drove individuals to avenge all wrongs of that description, denied a place in the code of criminal law. Insults formed a title in that of honour, which claimed exclusive jurisdiction of this offence.” Livingston, A System of Penal Law for the State of Louisiana, at 177 (1833).4
Illinois, 343 U. S. 250, 266, to the effect that libelous utterances are not within the protection of the
“It goes without saying that penal sanctions cannot be justified merely by the fact that defamation is evil
ing true statements of fact or incorrect opinions as to the qualifications of any person for public office, and Art. 386 (2), exculpating even mistaken observations on the tendencies or motives of official acts of public officers, but not exculpating false allegations of such motives as would be criminal.
or damaging to a person in ways that entitle him to maintain a civil suit. Usually we reserve the criminal law for harmful behavior which exceptionally disturbs the community‘s sense of security. . . . It seems evident that personal calumny falls in neither of these classes in the U. S. A., that it is therefore inappropriate for penal control, and that this probably accounts for the paucity of prosecutions and the near desuetude of private criminal libel legislation in this country. . . .” Model Penal Code, Tent. Draft No. 13, 1961, § 250.7, Comments, at 44.
The Reporters therefore recommended only narrowly drawn statutes designed to reach words tending to cause a breach of the peace, such as the statute sustained in Chaplinsky v. New Hampshire, 315 U. S. 568, or designed to reach speech, such as group vilification, “especially likely to lead to public disorders,” such as the statute sustained in Beauharnais v. Illinois, 343 U. S. 250. Model Penal Code, supra, at 45. But Louisiana‘s rejection of the clear-and-present-danger standard as irrelevant to the application of its statute, 244 La., at 833, 154 So. 2d, at 416, coupled with the absence of any limitation in the statute itself to speech calculated to cause breaches of the peace, leads us to conclude that the Louisiana statute is not this sort of narrowly drawn statute.
We next consider whether the historical limitation of the defense of truth in criminal libel to utterances published “with good motives and for justifiable ends”7
The following jurisdictions have constitutional or statutory provisions under which evidence of the truth may be introduced, but it is unclear whether this operates as a complete defense:
“If upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice. . . .
“It has been said that it is lawful to publish truth from good motives, and for justifiable ends. But this rule is too narrow. If there is a lawful occasion — a legal right to make a publication — and the matter true, the end is justifiable, and that, in such case, must be sufficient.”
Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, “it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded.” Noel, Def-
We held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. The reasons which led us so to hold in New York Times, 376 U. S., at 279-280, apply with no less force merely because the remedy is criminal. The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy. Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. And since “. . . erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive’ . . . ,” 376 U. S., at 271-272, only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions. For speech concerning public affairs is
The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. Cf. Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088-1111 (1942). That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .” Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
We find no difficulty in bringing the appellant‘s statement within the purview of criticism of the official conduct of public officials, entitled to the benefit of the New York Times rule. As the Louisiana Supreme Court viewed the statement, it constituted an attack upon the personal integrity of the judges, rather than on official conduct. In sustaining the finding of the trial court that the appellant‘s statement was defamatory, the Louisiana Supreme Court held that “. . . the use of the words ‘racketeer influences’ when applied to anyone suggests and imputes that he has been influenced to practice fraud, deceit, trickery, cheating, and dishonesty“; that “The expression that the judges have enjoyed 300 days vacation out of 19 months suggests and connotes a violation of the ‘Deadhead’ statute,
We do not think, however, that appellant‘s statement may be considered as one constituting only a purely private defamation. The accusation concerned the judges’ conduct of the business of the Criminal District Court.10
“Manifestly a candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office, and the liberal rule requires no more. But in measuring the extent of a candidate‘s profert of character it should always be remembered that the people have good authority for believing that grapes do not grow on thorns nor figs on thistles.” 78 Kan. 711, 739, 98 P. 281, 291 (1908).
III.
Applying the principles of the New York Times case, we hold that the Louisiana statute, as authoritatively interpreted by the Supreme Court of Louisiana, incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials.
addition of factual assertions. For different formulations of comment, in the context of the common law fair-comment rule, see 1 Harper and James, The Law of Torts, § 5.28, at 458 (1956); Note, Fair Comment, 62 Harv. L. Rev. 1207, 1213 (1949); Restatement, Torts, § 606, Comment b, § 567 (1938).
“It is inconceivable to me that the Defendant could have had a reasonable belief, which could be defined as an honest belief, that not one but all eight of these Judges of the Criminal District Court were guilty of what he charged them with in the defamatory statement. These men have been honored . . . with very high offices . . . . It is inconceivable to me that all of them could have been guilty of all of the accusations made against them. Therefore, I do
not believe that the qualified privilege under
LSA-R. S., Title 14, Section 49 , is applicable . . . .”
This is not a holding applying the New York Times test. The reasonable-belief standard applied by the trial judge is not the same as the reckless-disregard-of-truth standard. According to the trial court‘s opinion, a reasonable belief is one which “an ordinarily prudent man might be able to assign a just and fair reason for“; the suggestion is that under this test the immunity from criminal responsibility in the absence of ill-will disappears on proof that the exercise of ordinary care would have revealed that the statement was false. The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.
Reversed.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
For reasons stated at greater length in my opinions concurring in New York Times Co. v. Sullivan, 376 U. S. 254, 293, and dissenting in Beauharnais v. Illinois, 343 U. S. 250, 267, as well as in the opinion of MR. JUSTICE DOUGLAS in this case, infra, p. 80, I concur in reversing the conviction of appellant Garrison, based as it is purely on his public discussion and criticism of public officials. I believe that the
MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins, concurring.
I am in hearty agreement with the conclusion of the Court that this prosecution for a seditious libel was unconstitutional. Yet I feel that the gloss which the Court has put on “the freedom of speech” in the
Recently in New York Times Co. v. Sullivan, 376 U. S. 254, a majority of the Court held that criticism of an
If malice is all that is needed, inferences from facts as found by the jury will easily oblige. How can we sit in review on a cold record and find no evidence of malice (cf. New York Times Co. v. Sullivan, 376 U. S., at 285-288) when it is the commonplace of life that heat and passion subtly turn to malice in actual fact? If “reckless disregard of the truth” is the basis of seditious libel, that nebulous standard could be easily met. The presence of “actual malice” is made critical in seditious libel, as well as in civil actions involving charges against public officials, when in truth there is nothing in the Constitution about it, any more than there is about “clear and present danger.”
While the First Amendment remains the same, the gloss which the Court has written on it in this field of the discussion of public issues robs it of much vitality.
Why does “the freedom of speech” that the Court is willing to protect turn out to be so pale and tame?
It is because, as my Brother BLACK has said,2 the Bill of Rights is constantly watered down through judi-
As Irving Brant recently said: “The balancing test developed in recent years by our Supreme Court does not disarm the Government of power to trench upon the field in which the Constitution says ‘Congress shall make no law.’ The balancing test does exactly what is done by its spiritual parent, the British ‘common law of seditious libel,’ under which (to repeat the words of May), ‘Every one was a libeler who outraged the sentiments of the dominant party.‘” Seditious Libel: Myth and Reality, 39 N. Y. U. L. Rev. 1, 18-19 (1964).
Beauharnais v. Illinois, 343 U. S. 250, a case decided by the narrowest of margins, should be overruled as a misfit in our constitutional system and as out of line with the dictates of the First Amendment. I think it is time to face the fact that the only line drawn by the Constitution is between “speech” on the one side and conduct or overt acts on the other. The two often do blend. I have expressed the idea before: “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.” Roth v. United States, 354 U. S., at 514 (dissenting opinion). Unless speech is so brigaded with overt acts of that kind there is nothing that may be punished; and no semblance of such a case is made out here.
I think little need be added to what Mr. Justice Holmes said nearly a half century ago:
“I wholly disagree with the argument of the Government that the First Amendment left the common
the Court, along with Congress, a greater power, that of overriding the plain commands of the Bill of Rights on a finding of weighty public interest. In effect, it changes the direction of our form of government from a government of limited powers to a government in which Congress may do anything that courts believe to be ‘reasonable.‘”
law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the
Sedition Act of 1798 ,3 by repaying fines that it imposed.” Abrams v. United States, 250 U. S. 616, 630 (dissenting opinion).
The philosophy of the
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING.
Excerpt from Madison‘s Address, January 23, 1799:
“The sedition act presents a scene which was never expected by the early friends of the Constitution. It was then admitted that the State sovereignties were only diminished by powers specifically enumerated, or necessary to carry the specified powers into effect. Now, Federal authority is deduced from implication; and from the
“The sedition act is the offspring of these tremendous pretensions, which inflict a death-wound on the sovereignty of the States.
“For the honor of American understanding, we will not believe that the people have been allured into the adoption of the Constitution by an affectation of defining powers, whilst the preamble would admit a construction which would erect the will of Congress into a power paramount in all cases, and therefore limited in none. On the contrary, it is evident that the objects for which the Constitution was formed were deemed attainable only by a particular enumeration and specification of each power granted to the Federal Government; reserving all others to the people, or to the States. And yet it is in vain we search for any specified power embracing the right of legislation against the freedom of the press.
“Had the States been despoiled of their sovereignty by the generality of the preamble, and had the Federal Government been endowed with whatever they should judge to be instrumental towards union, justice, tranquillity, common defence, general welfare, and the preservation of liberty, nothing could have been more frivolous than an enumeration of powers.
“It is vicious in the extreme to calumniate meritorious public servants; but it is both artful and vicious to arouse the public indignation against calumny in order to conceal usurpation. Calumny is forbidden by the laws, usurpation by the Constitution. Calumny injures individuals, usurpation, States. Calumny may be redressed
“In answer to this, it is urged that every Government possesses an inherent power of self-preservation, entitling it to do whatever it shall judge necessary for that purpose.
“This is a repetition of the doctrine of implication and expediency in different language, and admits of a similar and decisive answer, namely, that as the powers of Congress are defined, powers inherent, implied, or expedient, are obviously the creatures of ambition; because the care expended in defining powers would otherwise have been superfluous. Powers extracted from such sources will be indefinitely multiplied by the aid of armies and patronage, which, with the impossibility of controlling them by any demarcation, would presently terminate reasoning, and ultimately swallow up the State sovereignties.
“So insatiable is a love of power that it has resorted to a distinction between the freedom and licentiousness of
“The distinction between liberty and licentiousness is still a repetition of the Protean doctrine of implication, which is ever ready to work its ends by varying its shape. By its help, the judge as to what is licentious may escape through any constitutional restriction. Under it men of a particular religious opinion might be excluded from office, because such exclusion would not amount to an establishment of religion, and because it might be said that their opinions are licentious. And under it Congress might denominate a religion to be heretical and licentious, and proceed to its suppression. Remember that precedents once established are so much positive power; and that the nation which reposes on the pillow of political confidence, will sooner or later end its political existence in a deadly lethargy. Remember, also, that it is to the press mankind are indebted for having dispelled the clouds which long encompassed religion, for disclosing her genuine lustre, and disseminating her salutary doctrines.
“The sophistry of a distinction between the liberty and the licentiousness of the press is so forcibly exposed in a late memorial from our late envoys to the Minister of the French Republic, that we here present it to you in their own words:
“‘The genious of the Constitution, and the opinion of the people of the United States, cannot be overruled by
*The First Amendment was Article Third in those submitted by Congress to the States on September 25, 1789.
“As if we were bound to look for security from the personal probity of Congress amidst the frailties of man, and not from the barriers of the Constitution, it has been urged that the accused under the sedition act is allowed to prove the truth of the charge. This argument will not for a moment disguise the unconstitutionality of the act, if it be recollected that opinions as well as facts are made punishable, and that the truth of an opinion is not susceptible of proof. By subjecting the truth of opinion to the regulation, fine, and imprisonment, to be inflicted by those who are of a different opinion, the free range of the human mind is injuriously restrained. The sacred obligations of religion flow from the due exercise of opinion, in the solemn discharge of which man is accountable to
MR. JUSTICE GOLDBERG, concurring.
I agree with the Court that there is “no difficulty in bringing the appellant‘s statement within the purview of criticism of the official conduct of public officials . . . .” Ante, at 76. In New York Times Co. v. Sullivan, 376 U. S. 254, 297, I expressed my conviction “that the Constitution accords citizens and press an unconditional freedom to criticize official conduct.” Id., at 305. New York Times was a civil libel case; this is a criminal libel prosecution. In my view, “[i]f the rule that libel on government has no place in our Constitution is to have real meaning, then libel [criminal or civil] on the official conduct of the governors likewise can have no place in our Constitution.” Id., at 299.