TIME, INC. v. FIRESTONE
No. 74-944
Supreme Court of the United States
Argued October 14, 1975—Decided March 2, 1976
424 U.S. 448
John H. Pickering argued the cause for petitioner. With him on the briefs were Harold R. Medina, Jr., and William S. Frates.
Edna L. Caruso argued the cause and filed a brief for respondent.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner is the publisher of Time, a weekly news magazine. The Supreme Court of Florida affirmed a
I
Respondent, Mary Alice Firestone, married Russell Firestone, the scion of one of America‘s wealthier industrial families, in 1961. In 1964, they separated, and respondent filed a complaint for separate maintenance in the Circuit Court of Palm Beach County, Fla. Her husband counterclaimed for divorce on grounds of extreme cruelty and adultery. After a lengthy trial the Circuit Court issued a judgment granting the divorce requested by respondent‘s husband. In relevant part the court‘s final judgment read:
“This cause came on for final hearing before the court upon the plaintiff wife‘s second amended complaint for separate maintenance (alimony unconnected with the causes of divorce), the defendant husband‘s answer and counterclaim for divorce on grounds of extreme cruelty and adultery, and the wife‘s answer thereto setting up certain affirmative defenses. . . .
“According to certain testimony in behalf of the defendant, extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud‘s hair curl. Other testimony, in plaintiff‘s behalf, would indicate that defendant was guilty of bounding from one bedpartner to another
with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida . . . . “In the present case, it is abundantly clear from the evidence of marital discord that neither of the parties has shown the least susceptibility to domestication, and that the marriage should be dissolved.
“The premises considered, it is thereupon
“ORDERED AND ADJUDGED as follows:
“1. That the equities in this cause are with the defendant; that defendant‘s counterclaim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved.
“4. That the defendant shall pay unto the plaintiff the sum of $3,000 per month as alimony beginning January 1, 1968, and a like sum on the first day of each and every month thereafter until the death or remarriage of the plaintiff.” App. 523-525, 528.
Time‘s editorial staff, headquartered in New York, was alerted by a wire service report and an account in a New York newspaper to the fact that a judgment had been rendered in the Firestone divorce proceeding. The staff subsequently received further information regarding the Florida decision from Time‘s Miami bureau chief and from a “stringer” working on a special assignment basis in the Palm Beach area. On the basis of these four sources, Time‘s staff composed the following item,
“DIVORCED. By Russell A. Firestone Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his third wife; a onetime Palm Beach schoolteacher; on grounds of extreme cruelty and adultery; after six years of marriage, one son; in West Palm Beach, Fla. The 17-month intermittent trial produced enough testimony of extramarital adventures on both sides, said the judge, ‘to make Dr. Freud‘s hair curl.‘”
Within a few weeks of the publication of this article respondent demanded in writing a retraction from petitioner, alleging that a portion of the article was “false, malicious and defamatory.” Petitioner declined to issue the requested retraction.1
Respondent then filed this libel action against petitioner in the Florida Circuit Court. Based on a jury verdict for respondent, that court entered judgment against petitioner for $100,000, and after review in both the Florida District Court of Appeal and the Supreme Court of Florida the judgment was ultimately affirmed. 305 So. 2d 172 (1974). Petitioner advances several contentions as to why the judgment is contrary to decisions of this Court holding that the
II
Petitioner initially contends that it cannot be liable for publishing any falsehood defaming respondent unless
In Gertz v. Robert Welch, Inc., 418 U. S. 323, 345 (1974), we have recently further defined the meaning of “public figure” for the purposes of the
“For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”
Respondent did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.
Dissolution of a marriage through judicial proceedings is not the sort of “public controversy” referred to in Gertz, even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public. Nor did respondent freely choose to publicize issues as to the propriety of her married life. She was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony. We have said that in such an instance “[r]esort to the judicial process . . . is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court.” Boddie v. Connecticut, 401 U. S. 371, 376-377 (1971). Her actions, both in instituting the litigation and in its conduct, were quite different from those of General Walker in Curtis Publishing Co., supra. She assumed no “special promi-
For similar reasons we likewise reject petitioner‘s claim for automatic extension of the New York Times privilege to all reports of judicial proceedings. It is argued that information concerning proceedings in our Nation‘s courts may have such importance to all citizens as to justify extending special
Petitioner would have us extend the reasoning of Cox Broadcasting to safeguard even inaccurate and false statements, at least where “actual malice” has not been established. But its argument proves too much. It may be that all reports of judicial proceedings contain some informational value implicating the
Presumptively erecting the New York Times barrier against all plaintiffs seeking to recover for injuries from defamatory falsehoods published in what are alleged to be reports of judicial proceedings would effect substantial depreciation of the individual‘s interest in protection from such harm, without any convincing assurance that such a sacrifice is required under the
It may be argued that there is still room for application of the New York Times protections to more nar-
III
Petitioner has urged throughout this litigation that it could not be held liable for publication of the “Milestones” item because its report of respondent‘s divorce
For petitioner‘s report to have been accurate, the divorce granted Russell Firestone must have been based on a finding by the divorce court that his wife had committed extreme cruelty toward him and that she had been guilty of adultery. This is indisputably what petitioner reported in its “Milestones” item, but it is equally indisputable that these were not the facts. Russell Firestone alleged in his counterclaim that respondent had been guilty of adultery, but the divorce court never made any such finding. Its judgment provided that Russell Firestone‘s “counterclaim for divorce be and the same is hereby granted,” but did not specify that the basis for the judgment was either of the two grounds alleged in the counterclaim. The Supreme Court of Florida on appeal concluded that the ground actually relied upon by the divorce court was “lack of domestication of the parties,” a ground not theretofore recognized by Florida law. The Supreme Court nonetheless affirmed the judgment dissolving the bonds of matrimony
Petitioner may well argue that the meaning of the trial court‘s decree was unclear,4 but this does not license it to choose from among several conceivable interpretations the one most damaging to respondent. Having chosen to follow this tack,5 petitioner must be able to establish not merely that the item reported was a conceivable or plausible interpretation of the decree, but that the item was factually correct. We believe there is ample support for the jury‘s conclusion, affirmed by the Supreme Court of Florida, that this was not the case. There was, therefore, sufficient basis for imposing liability upon petitioner if the constitutional limitations we announced in Gertz have been satisfied. These are a prohibition against imposing liability without fault, 418 U. S., at 347, and the requirement that compensatory awards “be supported by competent evidence concerning the injury.” Id., at 350.
The trial court charged, consistently with Gertz, that the jury should award respondent compensatory damages in “an amount of money that will fairly and adequately compensate her for such damages,” and further cautioned that “[i]t is only damages which are a direct and natural result of the alleged libel which may be recovered.” App. 509. There was competent evidence introduced to permit the jury to assess the amount of injury. Several witnesses6 testified to the extent of re-
IV
Gertz established, however, that not only must there be evidence to support an award of compensatory damages, there must also be evidence of some fault on the part of a defendant charged with publishing defamatory material. No question of fault was submitted to the jury in this case, because under Florida law the only findings required for determination of liability were whether the article was defamatory, whether it was true, and whether the defamation, if any, caused respondent harm.
The failure to submit the question of fault to the jury does not of itself establish noncompliance with the constitutional requirements established in Gertz, however. Nothing in the
But the only alternative source of such a finding, given that the issue was not submitted to the jury, is the opinion of the Supreme Court of Florida. That opinion appears to proceed generally on the assumption that a showing of fault was not required,7 but then in the penultimate paragraph it recites:
“Furthermore, this erroneous reporting is clear and convincing evidence of the negligence in certain segments of the news media in gathering the news. Gertz v. Welch, Inc., supra. Pursuant to Florida law in effect at the time of the divorce judgment (
Section 61.08, Florida Statutes ), a wife found guilty of adultery could not be awarded alimony. Since petitioner had been awarded alimony, she had not been found guilty of adultery nor had the
divorce been granted on the ground of adultery. A careful examination of the final decree prior to publication would have clearly demonstrated that the divorce had been granted on the grounds of extreme cruelty, and thus the wife would have been saved the humiliation of being accused of adultery in a nationwide magazine. This is a flagrant example of ‘journalistic negligence.‘” 305 So. 2d, at 178.
It may be argued that this is sufficient indication the court found petitioner at fault within the meaning of Gertz. Nothing in that decision or in the
Even where a question of fact may have constitutional significance, we normally accord findings of state courts deference in reviewing constitutional claims here. See, e. g., Lyons v. Oklahoma, 322 U. S. 596, 602-603 (1944); Gallegos v. Nebraska, 342 U. S. 55, 60-61 (1951) (opinion of Reed, J.). But that deference is predicated on our belief that at some point in the state proceedings some factfinder has made a conscious determination of the existence or nonexistence of the critical fact. Here the record before us affords no basis for such a conclusion.
It may well be that petitioner‘s account in its “Milestones” section was the product of some fault on its part,
So ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins, concurring.
A clear majority of the Court adheres to the principles of Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974). But it is evident from the variety of views expressed that perceptions differ as to the proper application of such principles to this bizarre case. In order to avoid the appearance of fragmentation of the Court on the basic principles involved, I join the opinion of the Court. I add this concurrence to state my reaction to the record presented for our review.
In Gertz we held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id., at 347. Thus, while a State may elect to hold a publisher to a lesser duty of care,1 there is no
In one paragraph near the end of its opinion, the Supreme Court of Florida cited Gertz in concluding that Time was guilty of “journalistic negligence.” But, as the opinion of the Court recognizes, ante, at 462 n. 7, and 463, it is not evident from this single paragraph that any type of fault standard was in fact applied. Assuming that Florida now will apply a negligence standard in cases of this kind, the ultimate question here is whether Time exercised due care under the circumstances: Did Time exercise the reasonably prudent care that a State may constitutionally demand of a publisher or broadcaster prior to a publication whose content reveals its defamatory potential?
The answer to this question depends upon a careful consideration of all the relevant evidence concerning Time‘s actions prior to the publication of the
There was substantial evidence, much of it uncontradicted, that the editors of Time exercised considerable care in checking the accuracy of the story prior to its publication. The “Milestones” item appeared in the December 22, 1967, issue of Time. This issue went to press on Saturday, December 16, the day after the Circuit Court rendered its decision at about 4:30 in the afternoon. The evening of the 15th the Time editorial staff in New York received an Associated Press dispatch stating that Russell A. Firestone, Jr., had been granted a divorce from his third wife, whom “he had accused of adultery and extreme cruelty.” Later that same evening, Time received the New York Daily News edition for December 16, which carried a special bulletin substantially to the same effect as the AP dispatch.
On the morning of December 16, in response to an inquiry sent to its Miami bureau, Time‘s New York office received a dispatch from the head of that bureau quoting excerpts from the Circuit Court‘s opinion that
The opaqueness of the Circuit Court‘s decree is also a factor to be considered in assessing whether Time was guilty of actionable fault under the Gertz standard. Although it appears that neither the head of the Miami bureau nor the stringer personally read the opinion or order, the stringer testified at trial that respondent‘s attorney Farish and others read him portions of the decree over the telephone before he filed his dispatch with Time.6 The record does not reveal whether
the limited portions of the decree that shed light on the grounds for the granting of the divorce were read to the stringer. But the ambiguity of the divorce decree may well have contributed to the stringer‘s view, and hence the Time editorial staff‘s conclusion, that a ground for the divorce was adultery by respondent.
However one may characterize it, the Circuit Court decision was hardly a model of clarity. Its opening sentence was as follows:
“This cause came on for final hearing before the court upon the plaintiff wife‘s second amended complaint for separate maintenance (alimony unconnected with the causes of divorce), the defendant husband‘s answer and counterclaim for divorce on grounds of extreme cruelty and adultery, and the wife‘s answer thereto setting up certain affirmative defenses.” App. 523.
After commenting on the conflicting testimony as to respondent‘s “extra marital escapades” and her husband‘s “bounding from one bedpartner to another,” the opinion states that “it is the conclusion and finding of the court that neither party is domesticated....” Finally, the Circuit Court “ORDERED AND ADJUDGED“:
“That the equities in this cause are with the de-
fendant; that defendant‘s counterclaim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved.” App. 528.
The remaining paragraphs in the order portion of the decision relate to child custody and support, disposition of certain property, attorney‘s fees, and the award of $3,000 per month to the wife (respondent) as alimony. There is no reference whatever in the “order” portion of the decision either to “extreme cruelty” or “adultery,” the only grounds relied upon by the husband. But the divorce was granted to him following an express finding “that the equities . . . are with the defendant [the husband].”
Thus, on the face of the opinion itself, the husband had counterclaimed for divorce on the grounds of extreme cruelty and adultery, and the court had found the equities to be with him and had granted his counterclaim for divorce. Apart from the awarding of alimony to the wife there is no indication, either in the opinion or accompanying order, that the husband‘s counterclaim was not granted on both of the grounds asserted. This may be a redundant reading, as either ground would have sufficed. But the opinion that preceded the order was full of talk of adultery and made no explicit reference to any other type of cruelty. In these circumstances, the decision of the Circuit Court may have been sufficiently ambiguous to have caused reasonably prudent newsmen to read it as granting divorce on the ground of adultery.
As I join the opinion of the Court remanding this case, it is unnecessary to decide whether the foregoing establishes as a matter of law that Time exercised the requisite care under the circumstances. Nor have I undertaken to identify all of the evidence that may be relevant or to
In my view, the question presented by this case is the degree of protection commanded by the
I
In a series of cases beginning with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), this Court has held that the laws of libel and defamation, no less than other legal modes of restraint on the freedoms of speech and press, are subject to constitutional scrutiny under the
As an erroneous judgment of liability is, in view of the
Identical considerations led the Court last Term in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), to hold that the
“[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of govern-
ment generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. . . . “. . . Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business.” 420 U. S., at 491-492, 495.
Crucial to the holding in Cox Broadcasting was the determination that a “reasonable man” standard for imposing liability for invasion of privacy interests is simply inadequate to the task of safeguarding against “timidity and self-censorship” in reporting judicial proceedings. Id., at 496. Clearly, the inadequacy of any such standard is no less in the related area of liability for defamation resulting from inadvertent error in reporting such proceedings.
II
It is true, of course, that the Court in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), cut back on the scope of application of the New York Times privilege as it had evolved through the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). Rosenbloom had held the New York Times privilege applicable to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” 403 U. S., at 44. But in light of the Court‘s percep-
at 349-350. However, the extension of the relaxed standard of Gertz to news reporting of events transpiring in and decisions arising out of public judicial proceedings is unwarranted by the terms of Gertz itself, is contrary to other well-established precedents of this Court and, most importantly, savages the cherished values encased in the
There is no indication in Gertz of any intention to overrule the Rosenbloom decision on its facts. Confined to those facts, Rosenbloom holds that in instances of erroneous reporting of the public actions of public officials, the New York Times actual-malice standard must be met before liability for defamation may be imposed in favor of persons affected by those actions. Although Gertz clearly altered the broader rationale of Rosenbloom, until the Court‘s decision today it could not have been supposed that Rosenbloom did not remain the law roughly to the extent of my Brother WHITE‘S concurring statement therein:
“[I]n defamation actions, absent actual malice as defined in New York Times Co. v. Sullivan, the
First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view.” 403 U. S., at 62.4
At stake in the present case is the ability of the press to report to the citizenry the events transpiring in the Nation‘s judicial systems. There is simply no meaningful
“A trial is a public event. What transpires in the court room is public property . . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Craig v. Harney, 331 U. S. 367, 374 (1947).6
The Court has recognized that with regard to the judiciary, no less than other areas of government, the press performs an indispensable role by “subjecting the . . . judicial processes to extensive public scrutiny and criticism.” Sheppard v. Maxwell, 384 U. S. 333, 350 (1966). And it is critical that the judicial processes be open to such scrutiny and criticism, for, as the Court has noted in the specific context of labor disputes, the more acute public controversies are, “the more likely it is that in some aspect they will get into court.” Bridges v. California, 314 U. S. 252, 268-269 (1941).7 Indeed, slight
Also no less true than in other areas of government, error in reporting and debate concerning the judicial process is inevitable. Indeed, in view of the complexities of that process and its unfamiliarity to the laymen
“There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news.9
which a stranger has the greatest difficulty in understanding. He hears the authority of a judge invoked in the political occurrences of every day, and he naturally concludes that in the United States the judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer at the first glance nothing that is contrary to the usual habits and privileges of those bodies; and the magistrates seem to him to interfere in public affairs only by chance, but by a chance that recurs every day. “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” 1 A. de Tocqueville, Democracy in America 98, 280 (P. Bradley ed. 1948).
“Some part of this is due to carelessness . . . . But a great deal of it must be attributed, in candor, to ignorance which frequently is not at all blameworthy. For newspapers are conducted by men who are laymen to the law. With too rare exceptions their capacity for misunderstanding the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know, is full of perplexities.
“In view of these facts any standard which would require strict accuracy in reporting legal events factually or in commenting upon them in the press would be an impossible one. Unless the courts and judges are to be put above criticism, no such rule
can obtain. There must be some room for misstatement of fact, as well as for misjudgment, if the press and others are to function as critical agencies in our democracy concerning courts as for all other instruments of government.” Pennekamp v. Florida, 328 U. S. 331, 371-372 (1946) (Rutledge, J., concurring).10
For precisely such reasons, we have held that the contempt power may not be used to punish the reporting of judicial proceedings merely because a reporter “missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case.” Craig v. Harney, 331 U. S., at 375. See also Pennekamp v. Florida, supra. And “[w]hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.” New York Times, 376 U. S., at 277. The
MR. JUSTICE WHITE, dissenting.
I would affirm the judgment of the Florida Supreme Court because
granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved.” App. 523-529. The Florida Supreme Court in the instant action found the fault required by Gertz, 418 U. S., at 347, to be present in the record by virtue of the fact that “[p]ursuant to Florida law in effect at the time of the divorce judgment . . . a wife found guilty of adultery could not be awarded alimony. Since petitioner had been awarded alimony, she had not been found guilty of adultery nor had the divorce been granted on the ground of adultery. A careful examination of the final decree prior to publication would have clearly demonstrated that the divorce had been granted on the grounds of extreme cruelty . . . .” 305 So. 2d 172, 178 (1974). Surely the threat of press self-censorship in reporting judicial proceedings is obvious if liability is to be imposed on the basis of such “fault.” Indeed, the impossibility of assuring against such errors in reporting is manifested by the fact that the same Florida Supreme Court, in reviewing the judgment of divorce some two and one-half years previous to the above-quoted statement, had found the divorce to have been granted by the trial judge on the erroneous grounds of “lack of domestication” rather than for either extreme cruelty or adultery. Firestone v. Firestone, 263 So. 2d 223 (1972).
The jury found on ample evidence that the article published by petitioner Time, Inc., about respondent Firestone was false and defamatory. This Court has held, and no one seriously disputes, that, regardless of fault, “there is no constitutional value in false statements of fact.” “They belong to that category of utterances which ‘. . . are of such slight social value as’ to be worthy of no
At the time of the defamatory publication in this case—December 1967—the law clearly authorized lia-
Therefore, to require proof of fault in this case—or in any other case predating Gertz and Rosenbloom in which a private figure is defamed—is to interfere with the State‘s otherwise legitimate policy of compensating defamation victims without furthering
MR. JUSTICE MARSHALL, dissenting.
The Court agrees with the Supreme Court of Florida that the “actual malice” standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), does not apply to this case. Because I consider the respondent, Mary Alice Firestone, to be a “public figure” within the meaning of our prior decisions, Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), I respectfully dissent.
I
Mary Alice Firestone was not a person “first brought to public attention by the defamation that is the subject of the lawsuit.” Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 78, 86 (1971) (MARSHALL, J., dissenting). On the contrary, she was “prominent among the ‘400’ of
Mrs. Firestone brought suit for separate maintenance, with reason to know of the likely public interest in the proceedings. As the Supreme Court of Florida noted, Mr. and Mrs. Firestone‘s “marital difficulties were . . . well-known,” and the lawsuit became “a veritable cause celebre in social circles across the country.” Ibid. The 17-month trial and related events attracted national news coverage, and elicited no fewer than 43 articles in the Miami Herald and 45 articles in the Palm Beach Post and Palm Beach Times. Far from shunning the publicity, Mrs. Firestone held several press conferences in the course of the proceedings.
These facts are sufficient to warrant the conclusion that Mary Alice Firestone was a “public figure” for purposes of reports on the judicial proceedings she initiated. In Gertz v. Robert Welch, Inc., supra, at 352, we noted that an individual can be a public figure for some purposes and a private figure for others. And we found two distinguishing features between public figures and private figures. First, we recognized that public figures have less need for judicial protection because of their greater ability to resort to self-help: “public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” 418 U. S., at 344.
As the above recital of the facts makes clear, Mrs. Firestone is hardly in a position to suggest that she lacked access to the media for purposes relating to her lawsuit.
The second, “more important,” consideration in Gertz was a normative notion that public figures are less deserving of protection than private figures: That although “it may be possible for someone to become a public figure through no purposeful action of his own,” generally those classed as public figures have “thrust themselves to the forefront of particular public controversies” and thereby “invite[d] attention and comment.” Id., at 344-345. And even if they have not, “the communications media are entitled to act on the assumption that . . . public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” Id., at 345.
We must assume that it was by choice that Mrs. Firestone became an active member of the “sporting set“—a social group with “especial prominence in the affairs of society,” ibid., whose lives receive constant media attention. Certainly there is nothing in the record to indicate otherwise, and Mrs. Firestone‘s subscription to a press-clipping service suggests that she was not altogether unin-
The Court resists this result by concluding that the subject matter of the alleged defamation was not a “public controversy” as that term was used in Gertz. In part, the Court‘s conclusion rests on what I view as an understatement of the degree to which Mrs. Firestone can be said to have voluntarily acted in a manner that invited public attention. But more fundamentally its conclusion rests on a reading of Gertz that differs from mine. The meaning that the Court attributes to the term “public controversy” used in Gertz resurrects the precise difficulties that I thought Gertz was designed to avoid.
It is not enough for the Court that, because of Mrs. Firestone‘s acquired prominence within a segment of society, her lawsuit had already attracted significant public attention and comment when the Time report was published. According to the Court, the controversy, already of interest to the public, was “not the sort of ‘public controversy’ referred to in Gertz.” Ante, at 454. The only explanation I can discern from the Court‘s opinion is that the controversy was not of the sort deemed relevant to the “affairs of society,” ante, at 453, and the public‘s interest not of the sort deemed “legitimate” or worthy of judicial recognition.
If there is one thing that is clear from Gertz, it is that we explicitly rejected the position of the plurality in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), that the applicability of the New York Times standard depends upon whether the subject matter of a report is a matter of “public or general concern.” We explained in Gertz that the test advanced by the Rosenbloom plurality
“would occasion the . . . difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest’ and which do not—to determine, in the words of MR. JUSTICE MARSHALL, ‘what information is relevant to self-government.’ Rosenbloom v. Metromedia, Inc., 403 U. S., at 79. We doubt the wisdom of committing this task to the conscience of judges.” 418 U. S., at 346.
Having thus rejected the appropriateness of judicial inquiry into “the legitimacy of interest in a particular event or subject,” Rosenbloom, supra, at 78, 79 (MARSHALL, J., dissenting), Gertz obviously did not intend to sanction any such inquiry by its use of the term “public controversy.” Yet that is precisely how I understand the Court‘s opinion to interpret Gertz.1
and none has been shown to us, which would be furthered or enhanced by ‘free discussion’ and ‘robust debate’ about the divorce of Russell and Mary Alice Firestone.
“Nor did [Mrs. Firestone‘s] quoted interviews with the press raise the untidy affair to the dignity of true public concern. Unlike an actress who might grant interviews relating to the opening of her new play, [Mrs. Firestone] was not seeking public patronage. Publicity, or sympathy, perhaps, but not patronage. Irrespective of her subjective motives, objectively she was merely satiating the appetites of a curious press.
“In sum, the Firestone divorce action was unquestionably newsworthy, but reports thereof were not constitutionally protected as being matters of real public or general concern.” 271 So. 2d, at 752.
This language is from an opinion that issued before Gertz was decided, but the reasoning was reaffirmed in the Supreme Court of Florida‘s final opinion in the case, 305 So. 2d 172, 174-175 (1974), which issued after our decision in Gertz.
II
While the foregoing discussion is sufficient to dispose of the case under my reading of the law, two other aspects of the Court‘s opinion warrant comment. First, the Court appears to reject the contention that a rational interpretation of an ambiguous document is always entitled to some constitutional protection. The Court reads Time, Inc. v. Pape, 401 U. S. 279 (1971), as providing such protection only under the rubric of the New York Times “actual malice” standard. Ante, at 459 n. 4. I disagree. While the precise holding in Pape was that the choice of one of several rational interpretations of an ambiguous document is not enough to create a jury issue of “actual malice,” the Court‘s reasoning suggests that its holding ought not be so confined. In introducing its discussion, the Court noted:
“[A] vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said rather than of what anybody did. Indeed, perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like. The question of the ‘truth’ of
to establish a requirement that an individual attempt to influence the resolution of a particular controversy before he can be termed a public figure. If that were the rule, Athletic Director Butts in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), would not be a public figure. We held that Butts was a public figure, and in Gertz we specifically noted that that decision was “correct.” 418 U. S., at 343.
such an indirect newspaper report presents rather complicated problems.” 401 U. S., at 285-286 (emphasis in original).
And in discussing the need for some protection for the publisher attempting to report the gist of a lengthy government document, the Court observed:
“Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of ‘truth’ that would not put the publisher virtually at the mercy of the unguided discretion of a jury.” Id., at 291.
Surely the Court‘s evident concern that publishers be accorded the leeway to offer rational interpretations of ambiguous documents was not restricted to cases in which the New York Times standard is applicable. That concern requires that protection for rational interpretations be accorded under the fault standard contemplated in Gertz. Thus my Brothers POWELL and STEWART, while joining the opinion of the Court, recognize that the rationality of an interpretation of an ambiguous document must figure as a crucial element in any assessment of fault under Gertz. Ante, at 467-469. I agree. The choice of one of several rational interpretations of an ambiguous document, without more, is insufficient to support a finding of fault under Gertz.
Finally, assuming that the Court is correct in its assessment of the law in this case, I find the Court‘s disposition baffling. The Court quotes that portion of the Florida Supreme Court‘s opinion which, citing Gertz, states in no uncertain terms that Time‘s report was a “flagrant example of ‘journalistic negligence.‘” 305 So. 2d 172, 178 (1974). But the Court is unwilling to read that statement as a “conscious determination” of fault, and accordingly the Court remands the case for an assessment of fault.
I therefore agree with my Brother WHITE that the Supreme Court of Florida made a conscious determination of fault. I would add, however, that it is a determination that is wholly unsupportable. The sole basis for that court‘s determination of fault was that under Florida law a wife found guilty of adultery cannot be, as Mrs. Firestone was, awarded alimony. Time, the court reasoned, should have realized that a divorce decree containing an award of alimony could not, consistent with Florida law, have been based on adultery. But that reasoning assumes that judicial decisions can always be squared with the prior state of the law. If we need be reminded that courts occasionally err in their assessment of the law, we need only refer to the subsequent history of the divorce decree involved in this case: When the divorce case reached the Supreme Court of Florida, that court found that the divorce had been granted for lack of “domestication” and pointed out that that was not one of the statutory grounds for
Notes
“That the public was curious, titillated or intrigued with the scandal in the Firestone divorce is beyond doubt. But we again emphasize the distinction we make between that genre of public interest and real public or general concern.
“. . . [W]e cannot find here any aspect of real public concern,
Furthermore, the allowance of damages for mental suffering alone will completely abrogate the use of summary judgment procedures in defamation litigation. Cf. Anderson, supra, at 469 n. 218. The use of such summary procedures may be a critical factor enabling publishers to avoid large litigation expenses in marginal and frivolous defamation suits. The specter of such expenses may be as potent a force for self-censorship as any threat of an ultimate damages award. See generally ibid.
“Careful examination and consideration of the record discloses that the judgment of the trial court is correct and should have been affirmed on appeal to the District Court.” 305 So. 2d, at 177-178.
There is nothing in the court‘s opinion which appears to make any reference to the relevance of some concept of fault in determining petitioner‘s liability. An early and sympathetic observer of our Nation‘s political system commented: “The judicial organization of the United States is the institution“According to certain testimony in behalf of the defendant, extra marital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud‘s hair curl. Other testimony, in plaintiff‘s behalf, would indicate that defendant was guilty of bounding from one bedpartner to another with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida in the case of Chesnut v. Chesnut, 33 So. 2d 730, where the court, in holding that a divorce rather than separate maintenance should be granted, said:
“‘The big trouble was total incapacity on the part of either for domestication. Seventy-five per cent of successful marriage depends on tact to cushion and bypass domestic frictions. It is much better than meeting them head on and bearing the scars they leave. When the bride and the groom are both devoid of a yen for domestication, the marital bark puts out to sea with its jib pointed to the rocks. . . . We think the record reveals a complete allergy to the give and take essential to successful marriage.’
“In the present case, it is abundantly clear from the evidence of marital discord that neither of the parties has shown the least susceptibility to domestication, and that the marriage should be dissolved.
“The premises considered, it is thereupon “ORDERED AND ADJUDGED as follows: “1. That the equities in this cause are with the defendant; that defendant‘s counterclaim for divorce be and the same is hereby