ROSENBLOOM v. METROMEDIA, INC.
No. 66
Supreme Court of the United States
Argued December 7-8, 1970—Decided June 7, 1971
403 U.S. 29
Ramsey Clark argued the cause for petitioner. With him on the brief was Benjamin Paul.
Bernard G. Segal argued the cause for respondent. With him on the brief were Irving R. Segal, Samuel D. Slade, and Carleton G. Eldridge, Jr.
MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join.
In a series of cases beginning with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court has considered the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press. New York Times held that in a civil libel action by a public official against a newspaper those guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with “knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280. The same requirement was later held to apply to “public figures” who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of “public officials” or “public figures,” usually, but not always, against newspapers or magazines.1 Common to all the cases was a
interest.
I
In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. During the fall of that year, in response to citizen complaints, the Special Investigations Squad of the Philadelphia Police Department initiated a series of enforcement actions under the city‘s obscenity laws. The police, under the command of Captain Ferguson, purchased various magazines from more than 20 newsstands throughout the city. Based upon Captain Ferguson‘s determination that the magazines were obscene,4 police on October 1, 1963, arrested most of the newsstand operators5 on charges of selling obscene material. While the police were making an arrest at one newsstand, petitioner arrived to deliver some of his nudist magazines and was immediately ar-
Following the second arrest, Captain Ferguson telephoned respondent‘s radio station WIP and another local radio station, a wire service, and a local newspaper to inform them of the raid on petitioner‘s home and of his arrest. WIP broadcast news reports every half hour to the Philadelphia metropolitan area. These news programs ran either five or ten minutes and generally contained from six to twenty different items that averaged about thirty seconds each. WIP‘s 6 p. m. broadcast on October 4, 1963, included the following item:
“City Cracks Down on Smut Merchants
“The Special Investigations Squad raided the home of George Rosenbloom in the 1800 block of Vesta Street this afternoon. Police confiscated 1,000 allegedly obscene books at Rosenbloom‘s home and arrested him on charges of possession of obscene literature. The Special Investigations Squad also raided a barn in the 20 Hundred block of Welsh Road near Bustleton Avenue and confiscated 3,000 obscene books. Capt. Ferguson says he believes they have hit the supply of a main distributor of obscene material in Philadelphia.”
On October 16 petitioner brought an action in Federal District Court against various city and police officials and against several local news media.7 The suit alleged that the magazines petitioner distributed were not obscene and sought injunctive relief prohibiting further police interference with his business as well as further publicity of the earlier arrests. The second series of allegedly defamatory broadcasts related to WIP‘s news reports of the lawsuit. There were ten broadcasts on October 21, two on October 25, and one on November 1. None mentioned petitioner by name. The first at 6:30 a. m. on October 21 was pretty much like those that followed:
“Federal District Judge Lord, will hear arguments today from two publishers and a distributor all seeking an injunction against Philadelphia Police Commissioner Howard Leary ... District Attorney James C. Crumlish ... a local television station and a newspaper ... ordering them to lay off the smut literature racket.
“The girlie-book peddlers say the police crack-
down and continued reference to their borderline literature as smut or filth is hurting their business. Judge Lord refused to issue a temporary injunction when he was first approached. Today he‘ll decide the issue. It will set a precedent ... and if the injunction is not granted ... it could signal an even more intense effort to rid the city of pornography.”
On October 27, petitioner went to WIP‘s studios after hearing from a friend that the station had broadcast news about his lawsuit. Using a lobby telephone to talk with a part-time newscaster, petitioner inquired what stories WIP had broadcast about him. The newscaster asked him to be more specific about dates and times. Petitioner then asked for the noon news broadcast on October 21, 1963, which the newscaster read to him over the phone; it was similar to the above 6:30 a. m. broadcast. According to petitioner, the ensuing interchange was brief. Petitioner told the newscaster that his magazines were “found to be completely legal and legitimate by the United States Supreme Court.” When the newscaster replied the district attorney had said the magazines were obscene, petitioner countered that he had a public statement of the district attorney declaring the magazines legal. At that point, petitioner testified, “the telephone conversation was terminated ... He just hung up.” Petitioner apparently made no request for a retraction or correction, and none was forthcoming. WIP‘s final report on petitioner‘s lawsuit—the only one after petitioner‘s unsatisfactory conversation at the station—occurred on November 1 after the station had checked the story with the judge involved.8
In May 1964 a jury acquitted petitioner in state court of the criminal obscenity charges under instructions of the trial judge that, as a matter of law, the nudist magazines distributed by petitioner were not obscene. Following his acquittal, petitioner filed this diversity action in District Court seeking damages under Pennsylvania‘s libel law. Petitioner alleged that WIP‘s unqualified characterization of the books seized as “obscene” in the 6 and 6:30 p. m. broadcasts of October 4, describing his arrest, constituted libel per se and was proved false by petitioner‘s subsequent acquittal. In addition, he alleged that the broadcasts in the second series describing his court suit for injunctive relief were also false and defamatory in that WIP characterized petitioner and his business associates as “smut distributors” and “girlie-book peddlers” and, further, falsely characterized the suit as an attempt to force the defendants “to lay off the smut literature racket.”
At the trial WIP‘s defenses were truth and privilege. WIP‘s news director testified that his eight-man staff of reporters prepared their own newscasts and broadcast their material themselves, and that material for the news programs usually came either from the wire services or from telephone tips. None of the writers or broadcasters involved in preparing the broadcasts in this case testified. The news director‘s recollection was that the primary source of information for the first series of broadcasts
III
Pennsylvania‘s libel law tracks almost precisely the Restatement (First) of Torts provisions on the subject. Pennsylvania holds actionable any unprivileged “malicious”9 publication of matter which tends to harm a person‘s reputation and expose him to public hatred, contempt, or ridicule. Schnabel v. Meredith, 378 Pa. 609, 107 A. 2d 860 (1954); Restatement of Torts §§ 558, 559 (1938). Pennsylvania law recognizes truth as a complete defense to a libel action. Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A. 2d 504, 507 (1969); Restatement of Torts § 582. It recognizes an absolute immunity for defamatory statements made by high state officials, even if published with an improper motive, actual malice, or knowing falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A. 2d 100 (1958); Restatement of Torts § 591,
“[I]f you find that this publication arose from a bad motive or malice toward the plaintiff, or if you find that it was published with reckless indifference to the truth, if you find that it was not true, you would be entitled to award punitive damages, and punitive damages are awarded as a deterrent from future conduct of the same sort.
“They really are awarded only for outrageous conduct, as I have said, with a bad motive or with reckless disregard of the interests of others, and before
you would award punitive damages you must find that these broadcasts were published with a bad motive or with reckless disregard of the rights of others, or reckless indifference to the rights of others ....”
The jury returned a verdict for petitioner and awarded $25,000 in general damages, and $725,000 in punitive damages. The District Court reduced the punitive damages award to $250,000 on remittitur, but denied respondent‘s motion for judgment n. o. v. In reversing, the Court of Appeals emphasized that the broadcasts concerned matters of public interest and that they involved “hot news” prepared under deadline pressure. The Court of Appeals concluded that “the fact that plaintiff was not a public figure cannot be accorded decisive importance if the recognized important guarantees of the First Amendment are to be adequately implemented.” 415 F. 2d, at 896. For that reason, the court held that the New York Times standard applied and, further, directed that judgment be entered for respondent, holding that, as a matter of law, petitioner‘s evidence did not meet that standard.
IV
Petitioner concedes that the police campaign to enforce the obscenity laws was an issue of public interest, and, therefore, that the constitutional guarantees for freedom of speech and press imposed limits upon Pennsylvania‘s power to apply its libel laws to compel respondent to compensate him in damages for the alleged defamatory falsehoods broadcast about his involvement. As noted, the narrow question he raises is whether, because he is not a “public official” or a “public figure” but a private individual, those limits required that he prove that the falsehoods resulted from a failure of respondent to exercise reasonable care, or required that he prove that
Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to live and work together in a free society not completely dominated by governmental regulation necessarily encompass far more than politics in a narrow sense. “The guarantees for speech and press are not the preserve of political expression or comment upon public affairs.” Time, Inc. v. Hill, 385 U. S. 374, 388 (1967). “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 102 (1940).
Although the limitations upon civil libel actions, first held in New York Times to be required by the First Amendment, were applied in that case in the context of defamatory falsehoods about the official conduct of a public official, later decisions have disclosed the artificiality, in terms of the public‘s interest, of a simple distinction between “public” and “private” individuals or institutions:
“Increasingly in this country, the distinctions between governmental and private sectors are blurred. ... In many situations, policy determina-
tions which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment, are nevertheless intimately involved in the resolution of important public questions .... “... Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of ‘public officials.’ ” Curtis Publishing Co. v. Butts, 388 U. S. 130, 163-164 (1967) (Warren, C. J., concurring in result).
Moreover, the constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government. “[T]he Founders ... felt that a free press would advance ‘truth, science, morality, and arts in general’ as well as responsible government.” Id., at 147 (opinion of HARLAN, J.). Comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of public interest. In Time, Inc. v. Hill, supra, we had “no doubt that the ... opening of a new play linked to an actual incident, is a matter of public interest,” 385 U. S., at 388, which was entitled to constitutional protection. Butts held that an alleged “fix” of a college football game was a public issue. Associated Press v. Walker, 388 U. S. 130 (1967), a companion case to Butts, established that the public had a similar interest in the events and personalities involved in federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University of Mississippi. Thus, these cases underscore the vitality, as
If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not “voluntarily” choose to become involved. The public‘s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant‘s prior anonymity or notoriety.11 The present case illustrates the point. The community has a vital interest in the proper enforcement of its criminal laws, particularly in an area such as obscenity where a number of highly important values are potentially in conflict: the public has an interest both in seeing that the criminal law is adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. Whether the person involved is a famous large-scale magazine distributor or a “private” businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amend-
Our Brother WHITE agrees that the protection afforded by the First Amendment depends upon whether the issue involved in the publication is an issue of public or general concern. He would, however, confine our holding to the situation raised by the facts in this case, that is, limit it to issues involving “official actions of public servants.” In our view that might be misleading. It is clear that there has emerged from our cases decided since New York Times the concept that the First Amendment‘s impact upon state libel laws derives not so much from whether the plaintiff is a “public official,” “public figure,” or “private individual,” as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest. See T. Emerson, The System of Freedom of Expression 531-532, 540 (1970). In that circumstance we think the time has come forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern, albeit leaving the
V
We turn then to the question to be decided. Petitioner‘s argument that the Constitution should be held to require that the private individual prove only that the publisher failed to exercise “reasonable care” in publishing defamatory falsehoods proceeds along two lines. First, he argues that the private individual, unlike the public figure, does not have access to the media to counter the defamatory material and that the private individual, unlike the public figure, has not assumed the risk of defamation by thrusting himself into the public arena. Second, petitioner focuses on the important values served by the law of defamation in preventing and redressing attacks upon reputation.
We have recognized the force of petitioner‘s arguments, Time, Inc. v. Hill, supra, at 391, and we adhere to the caution expressed in that case against “blind application” of the New York Times standard. Id., at 390. Analysis of the particular factors involved, however, convinces us that petitioner‘s arguments cannot be reconciled with the purposes of the First Amendment, with our cases, and with the traditional doctrines of libel law itself. Drawing a distinction between “public”
Further reflection over the years since New York Times was decided persuades us that the view of the “public official” or “public figure” as assuming the risk of defamation by voluntarily thrusting himself into the public eye bears little relationship either to the values protected by the First Amendment or to the nature of our society. We have recognized that “[e]xposure of the self to others in varying degrees is a concomitant of life in a civilized community.” Time, Inc. v. Hill, supra, at 388. Voluntarily or not, we are all “public”
General references to the values protected by the law of libel conceal important distinctions. Traditional arguments suggest that libel law protects two separate interests of the individual: first, his desire to preserve a certain privacy around his personality from unwarranted intrusion, and, second, a desire to preserve his public good name and reputation. See Rosenblatt v. Baer, 383 U. S., at 92 (STEWART, J., concurring). The individual‘s interest in privacy—in preventing unwarranted intrusion upon the private aspects of his life—is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern.17 In
These are important interests. Consonant with the libel laws of most of the States, however, Pennsylvania‘s libel law subordinates these interests of the individual in a number of circumstances. Thus, high government officials are immune from liability—absolutely privileged—even if they publish defamatory material from an improper motive, with actual malice, and with knowledge of its falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A. 2d 100 (1958). This absolute privilege attaches to judges, attorneys at law in connection with a judicial proceeding, parties and witnesses to judicial proceedings, Congressmen and state legislators, and high national and state executive officials. Restatement of Torts §§ 585-592. Moreover, a conditional privilege allows newspapers to report the false defamatory material originally published under the absolute privileges listed above, if done accurately. Sciandra v. Lynett, 409 Pa. 595, 187 A. 2d 586 (1963).
Even without the presence of a specific constitutional command, therefore, Pennsylvania libel law recognizes that society‘s interest in protecting individual reputation of truth. The Court has not yet had occasion to consider the impact of the
Moreover, we ordinarily decide civil litigation by the preponderance of the evidence. Indeed, the judge instructed the jury to decide the present case by that standard. In the normal civil suit where this standard is employed, “we view it as no more serious in general for there to be an erroneous verdict in the defendant‘s favor than for there to be an erroneous verdict in the plaintiff‘s favor.” In re Winship, 397 U. S. 358, 371 (1970) (HARLAN, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement—the three-quarter-million-dollar jury verdict in this case could rest on such an error—but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the
We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799, James Madison made the point in quoting (and adopting) John Marshall‘s answer to Talleyrand‘s complaints about American newspapers, American State Papers, 2 Foreign Relations 196 (U. S. Cong. 1832):
“Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America.” 6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed. 1906) (emphasis in original).
This Court has recognized this imperative: “[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the
Our Brothers HARLAN and MARSHALL reject the knowing-or-reckless-falsehood standard in favor of a test that would require, at least, that the person defamed establish that the publisher negligently failed to ascertain the truth of his story; they would also limit any recovery to “actual” damages. For the reasons we have stated, the negligence standard gives insufficient breathing space to
The real thrust of Brothers HARLAN‘s and MARSHALL‘S position, however, is their assertion that their proposal will not “constitutionalize” the factfinding process. But this clearly is not the way their test would work in practice. Their approach means only that factfinding will shift from an inquiry into whether the defamatory statements were knowingly or recklessly uttered to the inquiry whether they were negligently uttered, and if so, to an inquiry whether plaintiff suffered “actual” damages. This latter inquiry will involve judges even more deeply in factfinding. Would the mere announcement by a state legislature that embarrassment and pain and suffering are measurable actual losses mean that such damages may be awarded in libel actions? No matter how the problem is approached, this Court would ultimately have to fashion constitutional definitions of “negligence” and of “actual damages.”
Aside from these particularized considerations, we have repeatedly recognized that courts may not avoid an excursion into factfinding in this area simply because it is time consuming or difficult. We stated in Pennekamp v. Florida, 328 U. S. 331, 335 (1946), that:
“The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circum-
stances under which they were made to see whether or not they . . . are of a character which the principles of the First Amendment , as adopted by the Due Process Clause of theFourteenth Amendment , protect.” (Footnote omitted.)
Clearly, then, this Court has an “obligation to test challenged judgments against the guarantees of the
VI
Petitioner argues that the instructions on punitive damages either cured or rendered harmless the instructions permitting an award of general damages based on a finding of failure of WIP to exercise reasonable care. We have doubts of the merits of the premise;19 but even
The evidence most strongly supporting petitioner is that concerning his visit to WIP‘s studio where a part-time newscaster hung up the telephone when petitioner disputed the newscaster‘s statement that the District Attorney had characterized petitioner‘s magazines as obscene. This contact occurred, however, after all but one of the second series of broadcasts had been aired. The incident has no probative value insofar as it bears on petitioner‘s case as to the first series of broadcasts. That portion of petitioner‘s case was based upon the omission from the first two broadcasts at 6 and 6:30 p. m. on October 4 of the word “alleged” preceding a characterization of the magazines distributed by petitioner. But that omission was corrected with the 8 p. m. broadcast and was not repeated in the five broadcasts that followed. And we agree with the analysis of the Court of Appeals that led that court, and leads us, to conclude that the episode failed to provide evidence satisfying the New York Times standard insofar as it bore on peti-
“Only one broadcast took place after this conversation. It is attacked on the ground that it contains an inaccurate statement concerning plaintiff‘s injunction action in that it stated that the district attorney considered plaintiff‘s publications to be smut and immoral literature. The transcript of the testimony shows that plaintiff‘s own attorney, when questioning defendant‘s representative concerning the allegedly defamatory portion of the last broadcast, said that he was not questioning its ‘accuracy‘. Furthermore, his examination of the same witness brought out that defendant‘s representative confirmed the story with the judge involved before the broadcast was made. We think that the episode described, failed to provide evidence of actual malice with the requisite convincing clarity to create a jury issue under federal standards.” 415 F. 2d, at 897.
Petitioner argues finally that WIP‘s failure to communicate with him to learn his side of the case and to obtain a copy of the magazine for examination, sufficed to support a verdict under the New York Times standard. But our “cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U. S., at 731. Respondent here relied information supplied by police officials. Following petitioner‘s complaint about the accuracy of the broadcasts, WIP checked its last report with the judge who presided in the case. While we may assume that the District Court correctly held to be defamatory
Affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
MR. JUSTICE BLACK, concurring in the judgment.
I concur in the judgment of the Court for the reasons stated in my concurring opinion in New York Times Co. v. Sullivan, 376 U. S. 254, 293 (1964), in my concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U. S. 130, 170 (1967), and in MR. JUSTICE DOUGLAS’ concurring opinion in Garrison v. Louisiana, 379 U. S. 64, 80 (1964). I agree of course that
MR. JUSTICE WHITE, concurring in the judgment.
I
Under existing law the
The Court has now decided that the
Three other members of the Court also agree that private reputation has enjoyed too much protection and the media too little. But in the interest of protecting reputation, they would not roll back state laws so far. They would interpret the
MR. JUSTICE BLACK, consistently with the views that he and MR. JUSTICE DOUGLAS have long held, finds no room in the
Given this spectrum of proposed restrictions on state defamation laws and assuming that MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS will continue in future cases
For public officers and public figures to recover for damage to their reputations for libelous falsehoods, they must prove either knowing or reckless disregard of the truth. All other plaintiffs must prove at least negligent falsehood, but if the publication about them was in an area of legitimate public interest, then they too must prove deliberate or reckless error. In all actions for libel or slander, actual damages must be proved, and awards of punitive damages will be strictly limited.
II
For myself, I cannot join any of the opinions filed in this case. Each of them decides broader constitutional issues and displaces more state libel law than is necessary for the decision in this case. As I have said, MR. JUSTICE BRENNAN would extend the privilege enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), to publications upon any “subject of public or general interest.” See ante, at 43. He would thereby extend the constitutional protection to false and damaging, but non-malicious, publications about such matters as the health and environmental hazards of widely used manufactured products, the mental and emotional stability of executives of business establishments, and the racial and religious prejudices of many groups and individuals. All of these are, of course, subjects of real concern, and arguments for placing them within the scope of New York Times are by no means frivolous.
For MR. JUSTICE MARSHALL and MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN‘s opinion is both too severe and too limited. They would make more sweeping incursions into state tort law but purportedly with less destructive weapons. They would permit suit by some plaintiffs
I prefer at this juncture not to proceed on such a broad front. I am quite sure that New York Times Co. v. Sullivan was the wiser course, but I am unaware that state libel laws with respect to private citizens have proved a hazard to the existence or operations of the communications industry in this country. Some members of the Court seem haunted by fears of self-censorship by the press and of damage judgments that will threaten its financial health. But technology has immeasurably increased the power of the press to do both good and evil. Vast communication combines have been built into profitable ventures. My interest is not in protecting the treasuries of communicators but in implementing the
I say this with considerable deference since all my Brethren have contrary views. But I would not nullify a major part of state libel law until we have given the matter the most thorough consideration and can articulate some solid
This case lends itself to more limited adjudication. New York Times Co. v. Sullivan itself made clear that discussion of the official actions of public servants such as the police is constitutionally privileged. “The right of free public discussion of the stewardship of public officials” is, in the language of that case, “a fundamental principle of the American form of government.” 376 U. S., at 275. Discussion of the conduct of public officials cannot, however, be subjected to artificial limitations designed to protect others involved in an episode with officials from unfavorable publicity. Such limitations would deprive the public of full information about the official action that took place. In the present case, for example, the public would learn nothing if publication only of the fact that the police made an arrest were permitted; it is also necessary that the grounds for the arrest and, in many circumstances, the identity of the person arrested be stated. In short, it is rarely informative for a newspaper or broadcaster to state merely that officials acted unless he also states the reasons for their action and the persons whom their action affected.
Nor can New York Times be read as permitting publications that invade the privacy or injure the reputations of officials, but forbidding those that invade the privacy or injure the reputations of private citizens against whom official action is directed. New York Times gives the broadcasting media and the press the right not only to censure and criticize officials but also to praise them and the concomitant right to censure and criticize their adversaries. To extend constitutional protection to criticism only of officials would be to authorize precisely that sort of thought control that the
MR. JUSTICE HARLAN, dissenting.
The very facts of this case demonstrate that uncritical acceptance of the Pennsylvania libel law here involved would be inconsistent with those important
For the reasons set forth in Part I of my Brother MARSHALL‘S dissent, I cannot agree to such a solution. As he so well demonstrates, the principal failing of the plurality opinion is its inadequate appreciation of the limitations imposed by the legal process in accommodating the tension between state libel laws and the federal constitutional protection given to freedom of speech and press.
I
I think we all agree on certain core propositions. First, as a general matter, the States have a perfectly legitimate interest, exercised in a variety of ways, in redressing and preventing careless conduct, no matter who is responsible for it, that inflicts actual, measurable injury upon individual citizens. Secondly, there is no identifiable value worthy of constitutional protection in the publication of falsehoods. Third, although libel law provides that truth is a complete defense, that principle, standing alone, is insufficient to satisfy the constitutional interest in freedom of speech and press. For we have recognized that it is inevitable that there will be “some error in the situation presented in free debate,” Time, Inc. v. Hill, 385 U. S. 374, 406 (1967) (opinion of this writer), a process that needs “breathing space,” NAACP v. Button, 371 U. S. 415, 433 (1963), to flourish, and that “putting to the pre-existing prejudices of a jury the determination of what is ‘true’ may effectively institute a system of censorship.” Time, Inc. v. Hill, supra, at 406.
Moreover, any system that punishes certain speech is likely to induce self-censorship by those who would other-
The precise standard of care necessary to achieve these goals is, however, a matter of dispute as is the range of penalties a State may prescribe for a breach of that standard. In analyzing these problems it is necessary to begin with a general analytical framework that defines those competing interests that must be reconciled. My Brother MARSHALL‘S opinion, I think, dwells too lightly upon the nature of the legitimate countervailing interests promoted by the State‘s libel law and, as a result, overstates the case against punitive damages. Because we deal with a set of legal rules that treat truth as a complete defense it strikes, I think, somewhat wide of the mark to treat the State‘s interest as one of protecting reputations from “unjustified invasion.” Post, at 78. By hypothesis, the respondent here was free to reveal any true facts about petitioner‘s “obscure private life.”2
Conversely, I think that where the purpose and effect of the law are to redress actual and measurable injury to private individuals that was reasonably foreseeable as a result of the publication, there is no necessary conflict with the values of freedom of speech. Just as an automobile negligently driven can cost a person his physical and mental well-being and the fruits of his labor, so can a printing press negligently set. While the
Nor does this interest in compensating victims of harmful conduct somehow disappear when the damages inflicted are great. So long as the effect of the law of libel is simply to make publishers pay for the harm they cause, and the standard of care required is appropriately adjusted to take account of the special countervailing interests in an open exchange of ideas, the fact that this may involve the payment of substantial sums cannot plausibly be said to raise serious
II
Of course, it does not follow that so long as libel law performs the same compensatory function as civil law generally it is necessarily legitimate in all its various applications. The presence of
My principal concern with the plurality‘s view, of course, is that voiced by my Brother MARSHALL. However, even if this objection were not tenable, unlike the plurality, I do think there is a difference, relevant to the interests here involved, between the public and the private plaintiff, as our cases have defined these categories, and that maintaining a constitutional distinction between
To begin, it does no violence, in my judgment, to the value of freedom of speech and press to impose a duty of reasonable care upon those who would exercise these freedoms. I do not think it can be gainsaid that the States have a substantial interest in encouraging speakers to carefully seek the truth before they communicate, as well as in compensating persons actually harmed by false descriptions of their personal behavior. Additionally, the burden of acting reasonably in taking action that may produce adverse consequences for others is one generally placed upon all in our society. Thus, history itself belies the argument that a speaker must somehow be freed of the ordinary constraints of acting with reasonable care in order to contribute to the public good while, for example, doctors, accountants, and architects have constantly performed within such bounds.
This does not mean that I do not agree with the rule of New York Times, supra, but only that I deem it inapplicable here. That rule was not, I think, born solely of a desire to free speech that would otherwise have been stifled by overly restrictive rules, but also rested upon a determination that the countervailing state interests, described above, were not fully applicable where the subject of the falsehood was a public official or a public figure. For me, it does seem quite clear that the public person has a greater likelihood of securing access to channels of communication sufficient to rebut falsehoods concerning him than do private individuals in this country who do not toil in the public spotlight. Similarly, our willingness to assume that public personalities are more impervious to criticism, and may be held to have run the risk of publicly circulated falsehoods concerning them, does not rest solely upon an empirical assertion of fact, but also upon a belief that, in our political system, the individual speaker is entitled to act upon such an assumption if our institutions are to be held
I cannot agree that the
It is, then, my judgment that the reasonable care standard adequately serves those
III
There remains the problem of punitive damages.3 No doubt my Brother MARSHALL is correct in asserting that the specter of being forced to pay out substantial punitive damage awards is likely to induce self-censorship. This would probably also be the case where the harm actually caused is likely to be great. But, as I indicated above, this fact in itself would not justify construing the
At a minimum, even in the purely private libel area, I think the
The question then arises whether further limitations on this general state power must be imposed in order to serve the particularized goals of the
I find it impossible to say, at least without further judicial experience in this area, that the
However, from the standpoint of the individual plaintiff such damage awards are windfalls. They are, in essence, private fines levied for purposes that may be wholly unrelated to the circumstances of the actual litigant. That fact alone is not, I think, enough to condemn them. The State may, as it often does, use the vehicle of a private lawsuit to serve broader public purposes. It is noteworthy that my Brother MARSHALL does not rest his objection to punitive damages upon these grounds. He fears, instead, the self-censorship that may flow from the unbridled discretion of juries to set the amount of such damages. I agree that where these amounts bear no relationship to the actual harm caused, they then serve essentially as springboards to jury assessment, without reference to the primary legitimating compensatory function of the system, of an infinitely wide range of penalties wholly unpredictable in amount at the time of the pub-
However, where the amount of punitive damages awarded bears a reasonable and purposeful relationship to the actual harm done, I cannot agree that the Constitution must be read to prohibit such an award. Indeed, as I understand it, my Brother MARSHALL‘S objection to my position4 is not that the interest in freedom of speech dictates eliminating such judgments, but that this result
Because the Court of Appeals adjudicated this case upon principles wholly unlike those suggested here, I have merit “even if [the objection noted in my Brother MARSHALL‘S opinion] were not tenable.” Supra, at 69. Moreover, the assertion that an inquiry into whether actual damages were suffered “will involve judges even more deeply in factfinding,” ante, at 53, than ascertaining whether “the defendant in fact entertained serious doubts as to the truth of his publication,” ante, at 56, or whether the publication involved “an event of public or general concern,” ante, at 52, seems to me to carry its own refutation. The former focuses on measurable, objective fact; the latter upon subjective, personal belief. Finally, I cannot see why juries may not typically be entrusted responsibly to determine whether a publisher was negligent, a function they perform in judging the harmful conduct of most other members of society; or why it should be materially more difficult for judges to oversee such decisions where a speaker, rather than any other actor, is a defendant.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE STEWART joins, dissenting.
Here, unlike the other cases involving the New York Times1 doctrine, we are dealing with an individual who held no public office, who had not taken part in any public controversy, and who lived an obscure private life.2 George Rosenbloom, before the events and reports of the events involved here, was just one of the millions of Americans who live their lives in obscurity.
The protection of the reputation of such anonymous persons “from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.” Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (STEWART, J., concurring). But the concept of a citizenry informed by a free and unfettered press is also basic to our system of ordered liberty. Here these two essential and fundamental values conflict.
I
The plurality has attempted to resolve the conflict by creating a conditional constitutional privilege for defamation published in connection with an event that is found to be of “public or general concern.” The condition for the privilege is that the defamation must not be published “with knowledge that it was false or with reckless
In order for particular defamation to come within the privilege there must be a determination that the event was of legitimate public interest. That determination will have to be made by courts generally and, in the last analysis, by this Court in particular. Courts, including this one, are not anointed with any extraordinary prescience. But, assuming that under the rule announced by MR. JUSTICE BRENNAN for the plurality, courts are not simply to take a poll to determine whether a substantial portion of the population is interested or concerned in a subject, courts will be required to somehow pass on the legitimacy of interest in a particular event or subject; what information is relevant to self-government. See Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring). The danger such a doctrine portends for freedom of the press seems apparent.
The plurality‘s doctrine also threatens society‘s interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation. This danger exists since all human events are arguably within the area of “public or general concern.” My Brother BRENNAN does not try to provide guidelines or standards by which courts are to decide the scope of public concern. He does, however, indicate that areas exist that are not the proper focus of public concern, and cites Griswold v. Connecticut, 381 U. S. 479 (1965). But it is apparent that in an era of a dramatic threat of overpopulation and one in which previously accepted standards of conduct are widely heralded as outdated, even the intimate and personal concerns with which the Court dealt in that case cannot be said to be outside the area of “public or general concern.”
In New York Times the Court chose to balance the competing interests by seeming to announce a generally applicable rule. Here it is apparent that the general rule announced cannot have general applicability. The plurality‘s conditional privilege approach, when coupled
Undoubtedly, ad hoc balancing may be appropriate in some circumstances that involve
II
As the plurality recognizes here and as was recognized as the basic premise of the New York Times principle, the threat that defamation law presents for the values
The judgments that may be entered in defamation cases are unlike those that may be entered in most litigation since the bulk of the award is given to punish the defendant or to compensate for presumed damages. Here the jury awarded Mr. Rosenbloom $725,000 in punitive damages.7 This huge sum was given not to compensate him for any injury but to punish Metromedia. The concept of punitive or exemplary damages was first articulated in Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K. B. 1763)—one of the general warrant cases. There Lord Camden found that the power to award such damages was inherent in the jury‘s exercise of uncontrolled discretion in the awarding of damages. See 1 T. Sedgwick, Damages §§ 347-350 (9th ed. 1912). Today these damages are rationalized as a way to punish the wrongdoer and to admonish others not to err. See Morris, Punitive Damages in Tort Cases, 44 Harv. L. Rev. 1172 (1931). Thus they serve the same function as criminal penalties and are in effect private fines. Unlike criminal penalties, however, punitive damages are not awarded within discernible limits but can be awarded
In addition to the huge awards that may be given under the label of punitive or exemplary damages, other doctrines in the law of defamation allow substantial damages without even an offer of evidence that there was actually injury. See Montgomery v. Dennison, 363 Pa. 255, 69 A. 2d 520 (1949); Restatement of Torts § 621 (1938). These doctrines create a legal presumption that substantial injuries “normally flow” from defamation. There is no requirement that there be even an offer of proof that there was in fact financial loss, physical or emotional suffering, or that the plaintiff‘s standing in the community was diminished. The effect is to give the jury essentially unlimited discretion and thus to give it much the same power it exercises under the labels of punitive or exemplary damages. The impingement upon free speech is the same no matter what label is attached.
The threats to society‘s interest in freedom of the press that are involved in punitive and presumed damages can largely be eliminated by restricting the award of damages to proved, actual injuries. The jury‘s wide-ranging discretion will largely be eliminated since the award will be based on essentially objective, discernible factors. And the self-censorship that results from the uncertainty created by the discretion as well as the self-censorship resulting from the fear of large judgments themselves would be reduced. At the same time, society‘s interest in protecting individuals from defamation will still be fostered. The victims of the defamation will be compensated for their real injuries. They will not be, however, assuaged far beyond their wounds. And, there
My Brother HARLAN argues that it is unnecessary to go so far. Although he recognizes the dangers involved in failing “to confine the amount of jury verdicts within any ascertainable limits,” MR. JUSTICE HARLAN suggests that on a finding of actual malice punitive damages may be awarded if they “bear a reasonable and purposeful relationship to the actual harm done.” My Brother HARLAN envisions jurors being instructed9 to consider the deterrent function of punitive damages and to try to gear the punitive damages awarded in some undetermined way to actual injury. Apparently, the jury under the supervision of the court would weigh the content of the speech and the surrounding circumstances inter alia, the position of the plaintiff, the wealth of the defendant, and the nature of the instrument of publication—on the scale of their values and determine what amount is necessary in light of the various interests involved. Since there would be no objective standard by which to measure the jury‘s decision there would be no predetermined limit of jury discretion and all of the threats to freedom of the press involved in such discretion would remain. The chant of some new incantation will, of course, provide clear authority for a court to substitute its values for the jury‘s and remake the decision. If this is what my Brother
I believe that the appropriate resolution of the clash of societal values here is to restrict damages to actual losses. See Hill, The Bill of Rights and the Supervisory Power, 69 Col. L. Rev. 181, 191 n. 62 (1969). Of course, damages can be awarded for more than direct pecuniary loss but they must be related to some proved harm. See Wright, Defamation, Privacy, and the Public‘s Right to Know: A National Problem and a New Approach, 46 Tex. L. Rev. 630, 648 (1968). If awards are so limited in cases involving private individuals—persons first brought to public attention by the defamation that is the subject of the lawsuit—it will be unnecessary to rely, as both the plurality and to some extent MR. JUSTICE HARLAN do, on somewhat elusive concepts10 of the degree of fault, and unnecessary, for constitutional purposes, to engage in ad hoc balancing of the competing interests involved.11 States would be essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State‘s need.12
The only constitutional caveat should be that absolute or strict liability, like uncontrolled damages and private
Thus in this case I would reverse the judgment of the Court of Appeals for the Third Circuit and remand the case for a determination of whether Mr. Rosenbloom can show any actual loss.