*1 Inc. WELCH, GERTZ v. ROBERT Argued 25, 1974 June November 1973 Decided No. 72-617. *2 Wayne argued B. filed Giampietro cause and briefs petitioner. Clyde J. Watts a brief for argued the cause and filed respondent. opinion delivered the

Mr. Justice Powell Court. to define struggled nearly

This Court has a decade proper accommodation between the law defama- press tion and the of speech protected freedoms the First Amendment. decision return to With this we granted that effort. certiorari the ex- We to reconsider tent of a publisher’s privilege against constitutional lia- *3 bility for defamation of private a citizen. 410 U. S.

I In Chicago 1968 a policeman named Nuccio shot youth prose- killed a named Nelson. The state authorities cuted Nuccio for ultimately the homicide and obtained a conviction for murder in the second The Nel- degree. son family petitioner retained reputable Elmer a Gertz, represent attorney, them in litigation against civil Nuccio.

Respondent publishes American Opinion, monthly a outlet for the of the Early views John Birch in Society. the 1960’s magazine began to warn of a nationwide conspiracy to discredit local law agencies enforcement create their stead a national police capable force of supporting a Communist dictatorship. part As of the continuing effort alert the public to this assumed danger, the managing editor of American Opinion com- missioned an article on murder trial of Officer Nuccio. For purpose he engaged regular contributor to the magazine. In respondent March 1969 published the resulting article under the title “FRAME-UP: Richard purports The article On Police.” And War The Nuccio Nuccio against testimony to demonstrate was prosecution false and his trial was his criminal police. against the campaign Communist part of the family Nelson for the counsel capacity as In his in- the coroner’s attended petitioner litigation, the civil actions initiated boy’s death into the quest Nuccio with Officer neither discussed he damages,'but proceeding. the criminal played part press any nor with connection remote Notwithstanding petitioner’s magazine portrayed respondent’s Nuccio, prosecution of According “frame-up.” him architect Irish big, took “a petitioner file on article, police had been petitioner The cop to lift.” article stated that League Democ- for Industrial an official “Marxist Intercollegiate Socialist racy, originally known as the has the violent seizure of our Society, which advocated “Leninist” and a government.” It labeled Gertz a Gertz had “Communist-fronter.” It also stated that Lawyers Guild, described been an officer of the National “probably did more organization as Communist than Communist plan other outfit attack police Chicago during the 1968 Democratic Convention.” statements contained inaccuracies.

These serious *4 implication petitioner a that had criminal record was false. Petitioner had been a member and officer of years National Guild some 15 Lawyers earlier, but there was no or evidence that he that had organization taken part planning the 1968 demonstrations in Chicago. There was no also basis for the charge petitioner that was a “Leninist” aor “Communist-fronter.” And he had never been member of the “Marxist League In- Democracy” “Intercollegiate dustrial or the Socialist Society.” no managing Opinion editor of American made peti- verify charges against

effort to substantiate Instead, tioner. he editorial introduction appended an stating that had extensive author “conducted re- search into the Nuccio And he included Richard Case.” in the article a and wrote the photograph petitioner caption appeared that under it: “Elmer Gertz of Red Guild Respondent placed harrasses Nuccio.” issue Opinion of American containing the article on sale at newsstands throughout country and distributed reprints of the article on Chicago. the streets of diversity

Petitioner filed a action for libel in the United States Court for District the Northern District of Illinois. He respondent claimed that published by falsehoods injured reputation his lawyer and a citizen. Before filing answer, respondent moved to dismiss the com- plaint for failure to upon state a claim which relief could apparently granted, ground on the petitioner failed to allege special damages. But the court ruled that statements contained the article constituted libel se per under law Illinois consequently petitioner plead special need not damages. Supp. 306 F. 310 (1969). After answering the complaint, respondent pre- filed a trial motion for summary judgment, claiming a constitu- tional privilege against liability for defamation.1 It asserted petitioner was a official or a public figure and that the article concerned an of public issue interest and concern. For respondent these reasons, argued, it was entitled to invoke the privilege enunciated New York Sullivan, Times Co. 376 U. S. 254 (1964). Under respondent this rule escape liability would unless 1 Petitioner filed a summary cross-motion judgment grounds specified in the record. The petitioner’s court denied cross- motion without opinion discussion in a September 16, memorandum 1970. *5 defamatory false- of publication prove could

petitioner knowledge that is, with malice’—that ‘actual “with hood it was of disregard reckless whether with false or it was claimed Respondent 280. Id., at not.” false or showing a make such could petitioner that man- magazine’s the supporting a affidavit submitted knowledge editor denied editor. The aging stated petitioner and concerning statements falsity on his reputation and author’s relied on the he had that authenticity of accuracy and experience with prior Opinion. to American contributions the author’s sum- respondent’s motion for denied The District Court September opinion in memorandum judgment a mary claim dispute respondent’s court did not 1970. Rather, New York Times standard. of the protection might overcome consti- petitioner that concluded by making showing sufficient privilege factual tutional prove publication falsehood in reckless trial, During of the truth. course disregard clear the trial court had not ac- it became however, respondent’s grounds all cepted applying asserted thought the New York Times rule this case. It respondent’s protection claim to the of the constitutional privilege depended petitioner on the contention that was public either a official under New York Times deci- public figure Publishing sion or a under Curtis Co. v. Butts, 388 (1967), discounting U. S. 130 apparently argument a privilege presence would arise from the of a issue. After all the evidence had been pre- sented but before submission the case to jury, petitioner court ruled in effect that was neither a official nor public figure. It added if that, he were, the resulting application the New York Times standard require would a directed respondent. verdict for Because some statements in the article constituted per libel se *6 law, the the case to the under Illinois court submitted from jury under instructions that withdrew its considera- damages. jury tion all the measure of The issues save $50,000 petitioner. awarded Following jury reflection, the verdict and further on the District Court concluded New York Times that the govern standard should though this case even petitioner was not a official or re- figure. accepted It spondent’s privilege contention protected that that dis- cussion of any public issue without regard to the status person of a defamed therein. court Accordingly, the judgment respondent entered notwithstanding the jury’s verdict.2 This conclusion anticipated the reason- Supp. (1970). 322 F. .Petitioner asserts that the entry judgment of n. o. v. on the basis his of failure to show- knowledge or falsity disregard reckless for the truth constituted surprise deprived unfair opportunity him of a fair full and prove part respondent. “actual malice” the This contention supported is not the record. It is clear that the court trial gave petitioner reason no to assume New York Times that privilege respondent. would not available memo court’s opinion denying respondent’s randum pretrial summary motion for judgment does not state that New York Times standard was inapplicable Rather, to this case. it judge reveals that the trial thought possible petitioner showing to make a factual sufficient respondent’s to overcome claim privilege. of constitutional It states part: there dispute “When is a factual to the existence of actual malice, summary judgment improper. jury might

“In instant case infer from the evidence that [respondent’s] investigate allegations, failure to truth coupled receipt with its challenging of communications the factual accuracy of past, this author malice, to actual amounted that is, disregard’ ‘reckless allegations whether the were true not. New Sullivan, York 264,] Times [Co.] U. S. 279-280 [376 [(1964)].” Op., Sept. 16, Mem. 1970. Thus, petitioner knew or should have known outcome might ability the trial hinge on convincing his clear show Metro Rosenbloom v. of this Court ing plurality of a Inc., media, 403 U. S. applicability to contest the appealed

Petitioner Although the York to this case. Times standard New doubted for the Circuit Appeals Court of Seventh determination that District Court’s correctness not overturn public figure, it did petitioner was not Court agreed It with the District finding.3 *7 privilege be- the constitutional respondent could assert interest, public concerned matter of the article a cause v. intervening decision in Rosenbloom citing this Court’s Metromedia, Inc., read supra. Appeals of Court York New require application Rosenbloom to of the any publication Times or broadcast about standard to significant public interest, regard an without issue anonymity person position, fame, to the or of the defamed, respondent’s and it concluded statements that respondent disregard that acted with for the truth. evidence reckless open throughout Although question And this remained the trial. the initially applicability court concluded that the New York Times of the depended petitioner’s public rule figure, status as a the court petitioner figure did not decide that was not a until all presented. every the petitioner evidence had been Thus had opportunity, incentive, prove indeed disregard” “reckless if he could, attempted he in supports fact to do The record the so. by Appeals the petitioner present observation Court of “did (both type) evidence malice the ‘ill will’ 'constitutional’ the support damage his claim and no such evidence was excluded ... .” 471 F. 2d 807 n. 15 3The court stated: lawyer, author, stature as lecturer, considerable a “[Petitioner’s] participant public import in matters validity the undermine[s] assumption ‘public of the figure’ that he is as that term has by progeny been used of New York Nevertheless, Times. purposes of assumption decision we make that and test the avail- ability privilege subject of the claim of matter of the article.” Id., at 805. record, reviewing After such an issue.4

concerned the District Court’s con- Appeals the Court endorsed petitioner had failed to clear and clusion that show Appeals petitioner ingenious an In the Court of made but un defamatory charge availing attempt respondent’s against to show that general him concerned no He issue interest. asserted subject matter of the article the murder trial of Officer was participate proceeding. Nuccio and did not in that There that he fore, subject generally he if argued, even matter article protected by privilege, opinion were the New York Times under plurality, him Bosenbloom statements about rejected argument. not. The Appeals were Court of It noted against petitioner played integral part the accusations general respondent’s conspiracy thesis of nationwide harass the police: may also assume that the article’s basic thesis is false. Never-

“[W]e theless, reasoning Sullivan, under of New Times Co. even York a false in support protected statement of fact' made a false thesis knowledge falsity disregard unless made with of its or with reckless falsity. of its truth or It would undermine rule of that case to permit falsity the actual of a statement to determine whether or not publisher its is entitled to the benefit of the rule.

“If, therefore, putwe to one side false character of the article though entirely and treat its contents were it true, cannot be [petitioner] denied that the comments integral about were to its They central thesis. must be under tested the New York Times 2d, standard.” F. at 806. Appeals correctly rejected think that Court petitioner’s

We argument. acceptance might arbitrary imposition Its lead liability basis of an among unwise differentiation kinds present of factual misstatements. The point. case illustrates the Respondent falsely portrayed petitioner as an architect of the prosecution against criminal On inaccuracy Nuccio. face this its defamatory. appear Respondent peti- does falsely also labeled a tioner “Leninist” and a “Communist-fronter.” These accusations generally defamatory. petitioner’s are considered interpreta- Under “public general test, respondent tion interest” would have enjoyed privilege publish defamatory a constitutional if falsehood petitioner prosecution. had in fact been associated with the criminal seemingly But this would mean that the innocuous mistake of con- with acted had respondent convincing evidence There Times. York New as defined malice” “actual American editor of managing no evidence was made in the accusations falsity of knew of the Opinion peti- about nothing he knew fact, In the article. The article. from the he learned except what tioner investi- of failure proof mere noted that correctly court disregard reckless more, cannot establish gate, without “ 'high a act with publisher must Rather, truth. ” Amant falsity.’ St. probable of . . . awareness degree of Beck- accord, (1968); Thompson, 727, 390 U. S. 84-85 Hanks, 389 U. S. Corp. v. Newspapers ley Louisiana, (1964). 75-76 379 U. S. Garrison v. (1967); respondent did not reveal that in this case The evidence Appeals The Court of an awareness. had cause for such (1972). For the reasons 471 F. 2d 801 affirmed, therefore below, stated we reverse.

II whether a news- principal issue in this case is defamatory false- publishes paper or broadcaster an individual who is neither a hoods about figure may claim a constitu- official nor a against injury in- privilege tional flicted those statements. The Court considered this presented question on rather different set of facts Metromedia, Inc., Rosenbloom v. U. S. Rosenbloom, magazines, distributor nudist was selling arrested for obscene mak- allegedly material while fusing petitioner's litigation against role in the Officer Nuccio would destroy privilege calling petitioner otherwise available for privilege respondent’s publish Communist-fronter. Thus state- *9 danger injury ments whose content should have alerted it to the hinge accuracy reputation carried would on the of statements that warning. Assuming with that none of these statements them no such falsity published knowledge disregard or was with with reckless distinguish among truth, inaccuracies. for the we see no reason to the police obtained a delivery retail dealer. a to a ing inventory of books 3,000 his entire warrant seized pro- injunction magazines. sought He and obtained He with his business. police further interference hibiting in two failing to note a local radio station for then sued only items seized were 3,000 its newscasts that broadcasting “allegedly” and for “reportedly” obscene “girlie- racket” and references to “the smut literature peddlers” coverage proceeding book in its court against He injunctive judgment relief. obtained Third station, Appeals radio but Court of for the held the York privilege applicable Circuit New Times broadcast and reversed. F. 2d 892 Court below, majority This affirmed the decision but no could on a agree controlling eight rationale. The Justices5 participated who in Rosenbloom announced their views separate opinions, five none of which commanded more only than three votes. The several statements not re- disagreement veal appropriate about result in that they also case, reflect divergent thought traditions of general about problem reconciling the law of defamation with approach the First Amendment. One has been to extend New York Times test to an ex- panding variety of vary situations. Another has been to the level of constitutional privilege false- hood with the person status defamed. And third grant view would to the press and broadcast media abso- lute immunity from liability for place defamation. To our holding in proper context, preface we our discus- sion of this case with a review of the several Rosenbloom opinions and their antecedents.

In affirming the trial court’s judgment in the instant case, the Court of Appeals relied on Mr. Justice Bren- Douglas Mr. Justice did not parteipate in the consideration or decision of Rosenbloom. *10 plurality that “all for the Rosenbloom

nan’s conclusion involving pub- communication matters discussion pro- general concern,” S., lic or 403 U. at warrant rule for defamation accorded tection from Sullivan, in New York Times originally enunciated Co. consti- There this Court defined a U. S. privilege intended to free criticism of tutional imposed by from the common law officials the restraints political The Times ran a advertisement defamation. by black endorsing rights civil demonstrations students condemning performance impliedly Alabama A police officials. local law-enforcement commissioner established state court that certain misstatements referred to him and they advertisement consti- per tuted libel under showing se Alabama law. This left with single Times defense of for under truth, law good Alabama neither faith nor reasonable care protect newspaper would from liability. This Court concluded that a “rule compelling the critic of official guarantee conduct the truth of all his factual asser- id., tions” would protected deter speech, at announced the privilege designed constitutional to coun- ter that effect:

“The guarantees constitutional think, we require, a federal rule prohibits official from recovering damages for a defamatory falsehood re- lating to his official conduct proves unless he that the statement was made with ‘actual is, malice’—that with knowledge that it was false or with reckless disregard of whether was Id., false or not.” 279-280.6

6 New York Times and later explicated cases the meaning of the new standard. In New York Times the Court held that under the newspaper’s circumstances failure to check accuracy against advertisement news stories in its own files did not establish Times, after New York majority Three years agreed privilege Court to extend the constitutional “public criticism of This extension figures.” *11 disregard S., In reckless for the truth. 376 U. at 287-288. St. 727, equated Thompson, (1968), Amant v. 390 U. 731 the Court S. disregard subjective probable reckless of the truth with awareness of falsity: permit “There must sufficient evidence to the conclusion that the defendant in fact entertained serious doubts as to the truth publication.” Beckley Newspapers Hanks, of Corp. his In v. 389 (1967), 81 emphasized U. S. the Court the distinction between the knowledge disregard New York falsity Times test of of reckless or of the truth and “actual malice” ill-will. the traditional sense of Louisiana, (1964), Garrison v. 64 plain 379 U. made the new S. applied standard criminal to libel laws as well as civil to actions governed “anything might that it criticism directed which touch Id., Finally, on an official’sfitness at 77. in Rosenblatt v. for office.” Baer, (1966), ‘public 383 U. the “the S. Court stated that designation very among applies official’ at the least those to hierarchy government employees have, appear pub- of who have, responsibility lic to substantial for over or control the conduct governmental of affairs.” Time, Hill, (1967),

In Inc. v. applied U. S. the Court New York Times standard to actions under an unusual state statute. Rather, statute pro- did not create a cause of action for libel. it remedy a publicity. vided unwanted Although the allowed law recovery damages by exposure for harm caused attention by inaccuracies, recognized rather than complete factual truth as a Thus, nondefamatory defense. publisher factual errors could render a something privacy. liable akin to invasion The Court ruled that the defendant in such an action could invoke New York Times privilege regardless anonymity plaintiff. Speak- fame or of the Court, ing for the holding that this declared Me. Justice BREnnan was not an extension New parallel York Times but a fine rather reasoning applying that standard to this discrete context: by a “This neither libel action a a individual nor statu- tory action a Therefore, although official. First principles pronounced guide Amendment in New York Times our conclusion, only applying we reach principles that conclusion these in this It distinguish discrete context. purpose therefore serves no facts here from those in York New Times. Were action, a libel the distinction suggested which has been be- Co. v. Butts and its Publishing Curtis announced was Walker, 388 U. S. Press Associated companion, Saturday Evening involved case The first University Wally Butts of the Coach charge Post’s Bryant “Bear” with Coach conspired had Georgia between game a fix football Alabama to University of an erroneous' Walker involved respective schools. their Edwin Major General of former account Press Associated University Mississippi in a participation Walker’s by private alumni paid was Because Butts riot. campus Army, resigned from had and Walker association under New “public official” be classified as a neither could Harlan announced York Times. Although Justice Mr. with majority agreed of the Court in both result cases, New York that the conclusion Warren’s Mr. Chief Justice Times “public figures” criticism of apply test should *12 7 con- The Court extended the “public officials.” well as public and the opportunities relative of the official tween the defamatory might germane. charges private individual to rebut protection individual interest in the of the And the additional state against damage reputation Cf. Rosenblatt to his would be involved. S., at Baer, J., concurring).” 385 U. 383 U. (Stewart, S. 390-391. eases with Professor Kalven once introduced a discussion of these Players apt heading, Tell the Card.” “You Can’t without Score Iiill, Butts, Kalven, The Reasonable Man and the First Amendment: Walker, Only Sup. Justices Ct. Rev. 275. three other joined analysis Mr. Justice issues involved. In his Harlan’s of the concurring opinion, principle Mr. Chief stated the Justice Warren Times which these cases stand —that the New York test reaches both public figures public officials. Mr. and Mr. Brennan Justice question. agreed with the Chief Justice on that Justice White Douglas Mr. Justice Black and Mr. Justice reiterated their view publishers immunity should have an absolute from defamation, they acquiesced reasoning but in Chief in Justice’s majority order agree question to enable a of the Justices to on the appropriate of the privilege public constitutional for defamation of figures. protect announced in that case privilege

stitutional nonpublic persons criticism who “are never- intimately important theless involved in the resolution of public questions or, by fame, reason of their events shape Id., in (War- areas of society large.” concern to at J., result). in ren, concurring C.

In his opinion plurality for the in Rosenbloom v. Metromedia, Inc., 403 (1971), U. S. 29 Justice Mr. Brennan York step took the New Times privilege one further. He protection concluded that its should extend to defamatory private if relating persons falsehoods public statements concerned matters of or general interest. abjured He the suggested distinction between offi- cials and private one hand and indi- figures viduals on society's the other. He focused instead on interest about “If a learning certain issues: matter is a subject of public general interest, suddenly it cannot become merely less so private because a individual involved, or because some did sense individual ‘voluntarily’ choose Id., to become involved.” at 43. Thus, plurality under the citizen invol- opinion, untarily associated with a matter of general interest has no recourse for injury to his reputation he unless can satisfy demanding requirements of the York New Times test.

Two Members of the Court concurred in the result departed Rosenbloom but from the reasoning *13 plurality. Mr. Justice Black view, restated his long by shared Mr. Justice Douglas, that the First Amend- ment cloaks the news media with an absolute in- immunity Id., defeasible from for defamation. at 67. Justice White on concurred a narrower Mr ground. Ibid. He concluded that “the First Amend- gives press ment and the broadcast media a privilege to report upon and comment the official public actions of 33S rep- that requirement with no in full detail,

servants involved in or af- individual privacy utation or spared public from view.” action be by fected the official Id., reach broader therefore declined to at 62. He by the other Justices. questions addressed joined Although Mr. he had Justice Harlan dissented. Times, Curtis in New York opinion of the Court Publishing Co. had contested extension of the he had figures. argued There he privilege public held office should public a who no figure governmental be allowed recover for defamation “on damages conduct constitut- showing highly unreasonable of in- ing departure an extreme from the standards adhered to vestigation ordinarily and reporting responsible publishers.” In Curtis S., 388 U. at 155. his Publishing opinion Co. Mr. Harlan had distin- Justice guished York primarily ground New Times by public defamation “lay actions officials close to sedi- Id., tious libel . . Recovery damages . 153. .” one who held however, no office, could not “be viewed as a vindication governmental Id., policy.” at 154. Additionally, he had that, intimated because most public enjoyed officials immunity absolute from liability for their own defamatory under Barr utterances Matteo, 360 U. S. 564 (1959), lacked they a strong claim protection to the of the courts.

In Rosenbloom Mr. Justice Harlan modified these views. He acquiesced in the application of the privilege to defamation of public figures but argued that a different rule should obtain where defamatory falsehood harmed individual. He noted a' private person has less likelihood “of securing access to channels of communication sufficient to rebut falsehoods concern- ing him” than do officials and public figures, 403 U. S., at 70, and has voluntarily placed himself in the *14 Mr. spotlight. Justice Harlan concluded that the constitutionally

States could allow individuals to damages recover of for defamation the basis except standard of without fault. care dissented in Rosenbloom in an Mr. Justice Marshall opinion joined by Id., 78. at He Mr. Justice Stewart. plurality's “public the thought general that interest” York applicability test for New determining privilege Times would dangerous involve courts business of self- deciding “what information is relevant to Id., government.” at He 79. also contended that plurality's position inadequately “society’s served inter- est in protecting private being individuals from thrust into eye light the distorting of defamation.” Ibid. Mr. Marshall therefore reached the con- Justice clusion, also reached Mr. Harlan, Justice States should be “essentially free continue the evolu- tion of the common law of defamation and to articulate whatever fault standard best suits the need,” State's so as long impose States did not liability without fault. Id., at 86. The principal point disagreement among the three punitive dissenters damages. concerned Whereas Mr. Justice Harlan thought States could allow punitive damages amounts bearing “a reasonable and purposeful relationship to the actual harm . . . ,” done id., Mr. concluded Justice Marshall size and unpredictability jury awards exemplary damages unnecessarily problems exacerbated the self-censorship media and that such damages should therefore be forbidden.

Ill begin We with the common ground. Under the First Amendment there is no such thing a false idea. How- pernicious opinion may ever seem, depend we for its correction not on the conscience of judges juries but *15 But there no con- of other ideas.8 is competition on the of fact. Neither in false statements stitutional value materially ad- lie nor the careless error intentional “uninhibited, robust, and vances interest in society's New York Times wide-open” on issues. debate Sullivan, They belong to that S., Co. v. 376 U. at 270. category part which “are essential of utterances no slight social value any exposition ideas, and are of such step may as a that be derived truth benefit clearly from them the social interest outweighed by in morality.” Hampshire, order and New Chaplinsky v. 315 U. (1942). S.

Although worthy the erroneous statement fact is not of constitutional it is inevitable in nevertheless protection, free pointed debate. Madison out in Report As James Virginia Resolutions of 1798: “Some degree abuse is inseparable from the proper every use thing; and in no instance is this more true that of than press.” 4 Elliot, J. Debates on the Federal Constitution p. punishment And error runs the risk of inducing a cautious and restrictive exercise constitutionally guaranteed speech press. freedoms of Our decisions recognize that a rule of liability strict compels publisher guarantee broadcaster to the ac- curacy of his factual assertions lead may to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of injurious all statements does not accord adequate protection to First Amendment liber- ties. As the Court stated New York Times Co. Sul- v. livan, supra, at 279: “Allowance of the defense of truth, 8As Thomas point Jefferson made the in his Inaugural first any among "If Address: there be us who would wish to dissolve this change republican Union or form, its let them stand undisturbed safety as monuments of the with opinion which may error of tolerated where is left free reason to combat it.” proving defendant, with burden of it on does not only speech mean that false will be deterred.” The First protect Amendment some falsehood requires we protect order to speech that matters. self-censorship by

The need to avoid the news media is, If only value at however, were, societal issue. would have long ago Court embraced the view that publishers and enjoy broadcasters unconditional and immunity indefeasible from for defamation. See New Sullivan, York Co. supra, Times (Black, at 293 J., Louisiana, Garrison v. concurring); 379 U. S., *16 J., Publishing Butts, concurring); Curtis Co. v. (Douglas, S., 388 U. (opinion J.). of Black, Such a would, rule indeed, pros- obviate the fear that the pect of civil for injurious might falsehood dis- suade a timorous press from the effective exercise of First Amendment protection freedoms. Yet absolute for the communications requires media a total sacrifice' of competing the value served the of law defamation. The legitimate state underlying interest law the of libel is compensation of individuals the harm inflicted on them by defamatory falsehood. We would lightly require the State to abandon for, as Mr. purpose, reminded us, the Justice right has individual’s Stewart protection to the of good his own name "reflects no more than concept our basic the essen- tial and dignity worth of every being human —a concept at the any root of system decent of ordered liberty. protection of private personality, like protection of life itself, is primarily left to the individual States under the and Ninth Tenth Amend- ments. But this does not mean right entitled to recognition less by this Court as a basic of our system.” constitutional Rosenblatt v. Baer, 383 (1966) U. S. (concurring opinion). need between exists necessarily tension Some in- legitimate and the press uninhibited vigorous Mr. Justice injury. As wrongful redressing terest freedom between antithesis stated, “some Harlan re- for libel persists, actions and libel press speech and limits speech on the content premised mains sentiments, certain express publisher freedom sub- of their legal proof guaranteeing without at least Butts, Publishing v. accuracy.” Curtis Co. stantial continuing In to define effort 152. our supra, at con- competing between these proper accommodation to assure especially have been anxious cerns, we space”' “breathing speech press freedoms Button, exercise. NAACP essential to their fruitful has To that end this Court 371 U. S. strategic protection extended measure of falsehood. the level of

The New York Times standard defines protection context appropriate constitutional to the defamation of a reason person. who, Those vigor notoriety of their achievements or and success with they public’s attention, which seek the properly figures are who classed as and those *17 governmental hold may injury rep- office recover for only utation on clear and convincing proof that defamatory falsehood was made with knowledge of its falsity or with disregard reckless for the truth. This standard extremely administers an powerful antidote to the inducement to media self-censorship common-law rule of strict libel and it slander. And exacts a correspondingly high price from the victims defamatory Plainly falsehood. many deserving plaintiffs, including intentionally some subjected to injury, will be unable to surmount the barrier of the New York Times Despite test. this abridgment right to com- substantial state law pensation reputation, hurt to one’s wrongful New protection Court has concluded Times publish- York should be available to privilege concern- ers broadcasters falsehood New York ing public figures. officials Sullivan, Publishing Co. v. Curtis Co. v. supra; Times Butts, correct, We think that supra. these decisions are we find holdings justified solely by but do not their refer- ence to in press the interest of the and broadcast media immunity liability. from Rather, we believe that York Times New rule states an accommodation between this concern and the limited present state interest in the context brought by public of libel actions persons. For reasons below, stated we conclude that the state inter- est compensating injury reputation of private requires individuals that a different rule should obtain with respect to them.

Theoretically, of course, the balance between the needs of the press and compensation the individual’s claim to for wrongful injury might be struck a case-by-case basis. As Mr. Justice Harlan might “it hypothesized, seem, purely abstract matter, utili- the most approach tarian would be to carefully every scrutinize jury every verdict libel case, order to ascertain whether judgment the final protected leaves fully what- ever First Amendment values transcend legitimate state interest in protecting particular plaintiff who prevailed.” Rosenbloom Metromedia, Inc., S.,U. (footnote at 63 omitted). But approach would unpredictable lead to results and uncertain expecta- tions, could render duty our supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular ease is not feasible, we must lay down broad general rules of *18 alike various necessarily treat rules Such application. Thus well as similarities. differences involving cases which considerations all of the that not true is often par- each will obtain given rule adoption of justify authority. its under case decided ticular distinguishing difficulty in we have no that caveat With remedy of The first plaintiffs. defamation among oppor- available self-help using is of defamation victim — the error lie or correct to contradict tunities reputation. impact minimize adverse its thereby enjoy signifi- figures usually public Public officials of effective commu- access to the channels cantly greater opportunity to a more realistic nication and hence have nor- individuals private than counteract false statements more are therefore mally enjoy.9 Private individuals in protecting interest and the state vulnerable to injury, correspondingly greater. is them indi- private the likelihood that important More than there rebuttal, opportunities will effective viduals lack underlying the consideration compelling is a normative plain- defamation distinction between governmental An individual who to seek tiffs. decides accept consequences must of that necessary office certain of closer involvement affairs. He runs risk the case. And public scrutiny might than otherwise be government interest in the officers of is not society’s strictly discharge limited of official formal duties. Louisiana, pointed out in Garrison v. As the Court S., public’s interest extends to “anything U. course, opportunity Of for rebuttal seldom suffices to undo Indeed, harm of falsehood. law of defamation is experience rarely up in our rooted truth catches awith lie. remedy self-help rebuttal, alone, standing But the fact that inadequate mean to its task does not that it is irrelevant to our inquiry. *19 for office .... an official's fitness might

which touch on for germane to fitness Few are more personal attributes motiva- improper malfeasance, dishonesty, office than also affect may even characteristics tion, though these private the official's character.” posi- figures in a similar public Those classed as stand possible someone Hypothetically, may tion. be for action of public figure through purposeful become a no involuntary public own, truly his but instances figures part exceedingly rare. For the most must especial those who attain this status have assumed roles prominence society. occupy posi- in the affairs of Some they persuasive power tions such influence that public are deemed for figures purposes. all More com- monly, public those them- figures classed as have thrust particular public selves controversies forefront in order to influence the resolution the issues involved. In either event, they invite attention comment.

Even if generalities every the foregoing do not obtain in instance, the communications media are entitled act assumption public figures and public officials have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption justified respect with to a private individual. He accepted has not office or as- sumed an “influential role in Curtis society.” ordering Publishing Butts, Co. at 164 J., U. S., (Warren, C. concurring result). He has relinquished part no of his interest the protection of good his own name, and consequently he has more compelling call on the courts redress of injury inflicted by defamatory false- Thus, hood. private individuals are only more vul- nerable to injury than officials and public figures; they deserving are also more recovery.

For these reasons we conclude that the States should retain substantial latitude their efforts to enforce a injurious to the falsehood remedy legal The extension individual. of a reputation plu- Rosenbloom by proposed Times test York New to a interest state legitimate abridge this would rality occa- And it would unacceptable. find that we degree federal state forcing *20 difficulty additional sion the publications hoc which ad basis on an decide to judges interest” or “general public of issues address of in the words determine, Mr. Justice do not —to which self-govern- is to information relevant Marshall, “what Metromedia, Inc., S., at 403 U. Rosenbloom ment.” to task the committing this wisdom of 79. doubt the We require does the Constitution of Nor judges. conscience drastic alternatives the us draw so a line between to thin law of the common Times privilege of New York the gen- or The “public error. liability defamatory for strict of applicability determining interest” for eral test defamation private the New York Times to standard values competing both of the inadequately actions serves private at On one a individual whose hand, stake. reputation that does injured by defamatory is falsehood no general or has re- concern issue interest unless rigorous requirements course he can meet the New despite York Times. This is true the factors distinguish in compensating state interest private individuals from analogous interest involved public persons. the context of On the other hand, publisher a or defamatory broadcaster of a error which a deems court unrelated to an issue or general may be interest held liable in damages even if it every took precaution reasonable to ensure the accuracy liability its And may assertions. far compensa- exceed any tion injury for actual to the plaintiff, for jury may permitted presume be damages to proof without of loss to punitive damages. even award that, they impose liability

We hold so do long as may define for fault, without themselves the States liability a appropriate publisher standard broad- injurious defamatory private caster of falsehood a to individual.10 approach provides This equitable more against target prime Our caveat strict Mr. Jus publisher He White’s dissent. would hold that a or broad tice may prove required caster be of a statement to the truth concerning failing and, proof, individual such publisher may or broadcaster be held liable defamation even though every took precaution accuracy he conceivable ensure offending prior Post, statement dissemination. 388-392. its In Mr. view, publishes one who a statement that Justice White’s out later turns inaccurate can be “without fault” in never meaningful sense, for is he he who circulated a falsehood that “[i]t required 'publish.” added). was not Post, (emphasis at 392 characterizes New York Times Co. v. Sulli Mr. Justice White Post, van, (1964), simply U. S. 254 a case of seditious libel. certainly inapplicable at 387. But that Pub rationale is to Curtis *21 lishing Butts, (1967), Co. v. 388 U. S. 130 where Justice White Mr. joined knowing-or- four other Members of the Court extend the reckless-falsity persons standard as to media defamation of identified figures public but not connected with the Government. Mr. Justice by suggests vote, post, 398, White now that he would abide at but full the thrust of his dissent —as we read it—contradicts that suggestion. Finally, Metromedia, in Inc., v. Rosenbloom 403 U. S. (1971), Mr. apply Justice White voted to the New York Times privilege to media defamation individual who neither a was public public figure. opinion official nor a His states the knowing-or-reckless-falsity apply standard should to media “com- upon public servants,” id., ment the official in- actions of cluding defamatory person by police. falsehood about arrested the adopted Court, If significantly the this conclusion would extend privilege. New the York Times today asserts that our decision

Mr. Justice “trivializes White denigrates reputation,” Publishing in and the interest Miami Herald Tornillo, ante, Co. v. (concurring at 262 opinion), that it “scuttle[s] laws of the in States . . . wholesale libel fashion” and renders ordinary “powerless protect Post, citizens themselves.” at 370. light progressive In knowing-or-reckless-falsity of the of the extension involved here. concerns competing boundary between interest state legitimate of the strength It recognizes injury wrongful individuals in compensating media broadcast press shields reputation, yet At liability for defamation. of strict rigors from the sub- here, where, obtains conclusion least this “makes substan- defamatory statement stance of the places phrase This apparent.” reputation danger to tial today. Our we announce conclusion perspective different considerations somewhat would involve inquiry to condi- purported if State discussed from those above whose a factual misstatement liability on tion civil or reasonably prudent editor not warn a content did Time, Inc. defamatory potential. Cf. broadcaster its Hill, case is now Such a 385 U. S. no to its proper we intimate view as before us, resolution. IV competing

Our of the values at stake accommodation by private individuals defamation allows suits impose liability publisher on the States to broadcaster demanding on a showing falsehood less than York New Times. This conclusion required is not on a based belief that considerations which New prompted adoption of York Times privilege defamation of officials and its extension wholly are figures inapplicable to the context private individuals. we Rather, approach endorse recognition strong legitimate state interest in compensating private injury individuals for to reputa- *22 requirement preceding paragraph, detailed might one have today’s allowing recovery viewed any decision under standard save liability generous strict aas more accommodation of the state interest comprehensive reputational injury to individuals than the presently law affords. Publishing Butts, supra, Curtis Co. v. at 155. tion. But this countervailing state interest extends no compensation further than for For the injury. actual may reasons stated we hold below, States permit recovery presumed punitive or damages, liability least when is showing not based knowledge of falsity disregard reckless for the truth. oddity

The common law of defamation is an of tort law, recovery for it allows of purportedly compensatory damages without evidence of actual loss. Under pertaining traditional rules to for libel, actions the exist- injury ence of presumed is from publication. the fact of may Juries award as compensation substantial sums for supposed damage reputation any proof without such actually harm occurred. The largely uncontrolled of juries damages discretion to award where there is no loss compounds potential unnecessarily any sys- tem for defamatory falsehood inhibit vigorous exercise of First Addi- Amendment freedoms. tionally, presumed damages juries doctrine of invites punish opinion unpopular compensate rather than to individuals for sustained injury publication of false fact. More to the no point, States have sub- stantial interest for securing plaintiffs such petitioner gratuitous money damages awards of far in excess injury. actual We not, course, would invalidate state law simply because we doubt its here wisdom, but we are attempting to reconcile state law with a competing grounded interest in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for falsehood reach no farther than is necessary protect the legitimate interest involved. It necessary to restrict defamation plaintiffs who prove do not knowledge of falsity or reckless disregard compensation the truth to injury. actual We *23 have injury,” as trial courts define “actual need not jury instruc- framing appropriate experience wide that actual say in tort actions. Suffice tions out-of-pocket Indeed, loss. is not limited to injury by harm inflicted defam- types of actual customary more reputation and atory impairment include falsehood personal humiliation, community, in the standing suffering. juries must be anguish course, mental Of and all awards must by appropriate instructions, limited in- supported by competent concerning evidence be no jury, although assigns there need evidence which injury. dollar value actual to the justification We also find no for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of In jurisdictions jury defamation. most discretion over only amounts awarded is limited by gentle they rule that not be juries excessive. Consequently, punitive wholly damages unpredictable assess amounts necessary no bearing relation to the actual harm caused. And they remain free to use their discre- selectively tion punish expressions of unpopular views. Like the presumed doctrine of jury dis- damages, cretion punitive to award unnecessarily damages exacer- the danger bates of media self-censorship, but, unlike the former punitive rule, damages wholly are irrelevant to the state justifies interest negligence pri- standard for vate defamation They actions. compensation are not injury. they are Instead, levied fines civil juries punish reprehensible conduct and to deter its future In occurrence. short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated New York Times may only recover such damages as are sufficient compensate him for injury. actual

V *24 York the New extend Notwithstanding our refusal to individuals, privilege Times to defamation judgment affirm the respondent contends that we should public petitioner is either a ground below on for the public a There is little basis figure. official or in- present to the years prior former assertion. Several housing commit- cident, petitioner briefly had served appointed by mayor at Chicago, tees but time of publication he had never held remunera- governmental position. Respondent tive admits this but argues petitioner's appearance at the coroner’s inquest rendered him a "de official.” public facto Our cases no recognize concept. Respondent’s sugges- such tion sweep lawyers would all York Times under the New rule as and plain meaning the court distort the officers “public category beyond recognition. official” all We decline to follow it.

Respondent’s of petitioner public characterization as a figure raises a different question. designation may That rest on either of two alternative In bases. some in- stances may an individual achieve pervasive such fame or notoriety that he becomes a figure pur- for all poses and in all contexts. More an commonly, individual voluntarily injects himself or is drawn particular into a public controversy and thereby becomes figure a for a range limited In issues. persons either case such assume special prominence in the resolution of public questions.

Petitioner long has been active in community and professional affairs. He has served as an officer of local civic groups and of professional various organizations, he published and has several books and articles on legal subjects. Although petitioner was consequently well known in circles, some he had general achieved no fame prospective None of the community. notoriety in the petitioner ever heard of the trial had called jurors proof offered no respondent litigation, prior to this population. local atypical was response participa- a citizen’s lightly assume that We would him rendered community professional affairs tion clear evidence purposes. Absent public figure all per- in the general notoriety community, fame or society, vasive involvement in the affairs of individual public personality aspects should not be for all deemed preferable public-figure of his life. It to reduce the question meaningful looking to a more context to the nature and extent of an participation individual’s in the *25 particular controversy giving rise to the defamation.

In plain this context it is petitioner was not a public figure. played He a minimal role at the coroner’s inquest, and participation his solely related to his repre- sentation of private part client. He took no in the prosecution criminal of Officer Nuccio. he Moreover, never discussed either the litigation criminal or civil with press and was never quoted having as done so. He plainly did not thrust himself into the vortex of this public nor issue, did he engage public’s attention in an attempt to influence its outcome. persuaded We are that the trial court did not err in refusing to characterize petitioner public as a figure for the purpose of this litigation.

We therefore conclude that the New York Times stand- ard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and permitted was to presume damages proof without a new injury, trial is necessary. We reverse and remand for further proceedings in accord with opinion.

It is so ordered. Mr. Justice Blackmun, concurring.

I joined Mr. opinion plu- Justice Brennan’s rality Metromedia, Inc., v. Rosenbloom 403 U. S. I so I given did because concluded New that, Sullivan, York Times Co. v. 376 U. S. (1964), and its ante, progeny (noted by 6), n. as 334-336, Court, Publishing Curtis well as Co. v. Butts Press and Associated Walker, 388 U. Rosen- step S. taken in (1967), bloom, extending the New York Times doctrine to event of public general interest, logical was in- evitable. A thought majority evidently Court otherwise, is particularly as by Mr. Justice evidenced separate concurring opinion there and White’s respective dissenting opinions of Mr. Justice Harlan and of joined Mr. Justice Marshall Mr. Justice Stewart.

The Court today refuses apply New York Times to individual, contrasted with the offi- cial and figure. thus It withdraws to the fac- tual pre-Rosenbloom limits of the cases. It fixes thereby the outer boundary of the New York Times doctrine and says beyond boundary, free to State is define for itself appropriate standard of media long so as it impose does not liability without fault. As *26 joinder my plurality opinion Rosenbloom’s inti- would mate, I illogic sense some in this.

The Court, however, today seeks to strike a balance between competing necessarily values where uncertain assumptions about human Al- behavior color the result. though the Court’s opinion present in the case departs from the rationale of the Rosenbloom plurality, the Court now conditions a action by private libel per- upon showing son of negligence, as contrasted awith showing of willful or reckless disregard, I am willing to 354 judgment its and opinion Court’s join, the and do

join, two reasons: punitive and presumed specters removing By 1. York Times malice, of New in the absence damages motives powerful significant eliminates Court present in the tradi- otherwise are self-censorship that By the Court leaves what doing, so tional libel action. breathing adequate prove to sufficient should I done, the Court has vigorous press. What space for a effect on little, any, practical have if believe, will journalism. functioning responsible in Bosenbloom. was fractionated sadly 2. The Court I uncertainty. inevitably A of that kind leads result profound importance for the Court to feel that is clearly in the defamation area and to have a come to rest majority position that eliminates the unsureness defined diversity. my If were vote engendered Rosenbloom’s I majority, my create a would adhere to not needed to A ruling, however, paramount. view. definitive prior Butts, Publishing Curtis Co. v. S., See 388 U. at 170 Time, Hill, J., concurring); Inc. v. (Black, U. S. concurring); United (1967) (Black, J., States v. Vuitch, (1971) (separate statement). U. S. I reasons, join

For these the opinion and the judgment of the Court.

Mr. Chief Justice Burger, dissenting.

The doctrines of the law of defamation have had a gradual evolution primarily in the state New In courts. York Sullivan, Times Co. 376 U. S. (1964), its progeny this Court entered this field.

Agreement or disagreement with the law as it has evolved to this time does not alter fact that it has orderly been development with a consistent basic ra- In today’s tionale. opinion the Court abandons the tradi- *27 is ordinary private so far as citizen con- tional thread concept will be cerned and introduces that the media statements negligence publishing liable for I respect Although agree to such with persons. with much do read I of what Mr. Justice states, White he approach quite way the Court’s new doctrinal I am frank I say parameters does. do not know the a “negligence” applied doctrine as to the news media. Conceivably editors, new doctrine could inhibit some Douglas as the dissents of Mr. Justice Mr. Justice prefer I suggest. But would to allow this area Brennan of law to continue to evolve has up as it to now with respect citizens rather than embark on a new theory jurisprudential doctrinal which has no ancestry. The petitioner performing professional repre- here was highest role as an advocate in sentative tradition of law, and under that tradition the advocate is not to invidiously be important identified with his client. The which policy underlies this right tradition —the gravely counsel —would jeopardized if every lawyer who takes an “unpopular” case, civil would criminal, automatically game become fair irresponsible reporters and editors who might, example, lawyer describe the as a “mob mouthpiece” for representing a client with a prior serious criminal record, or as an “ambulance chaser” for representing a a personal claimant injury action.

I would judgment reverse the Appeals the Court of and remand for reinstatement of jury the verdict of the and the entry appropriate judgment on that verdict. Justice Douglas,

Mr. dissenting. The Court describes this case as a return to the struggle of “defin[ing] the proper accommodation between the law of defamation and the of speech and press freedoms protected by the First Amendment.” It indeed struggle, once described Mr. Justice Black as “the same *28 356 helplessly strug- in Court “is now which the

quagmire” Publishing v.Co. obscenity.” gling in the field Curtis I Butts, would 130, (concurring opinion). 388 U. S. one, suggest quite hopeless for, struggle “accom- light of command of First no Amendment, “proper” except modation” its freedoms can be those by made the Framers themselves. privacy

Unlike the the terms of the right by which, Amendment, Fourth with reason- must accommodated able searches and seizures and issued magis- warrants trates, speech press of free and of a rights free protected were the Framers in verbiage whose I proscription my seems clear. have before stated view the First Congress Amendment would bar any from passing law.1 libel This was the view held by Thomas Jefferson2 and it is Congress one has never challenged through enactment of a civil libel statute. The congressional attempt variety sole of First Amendment muzzle inwas Act of Sedition 1798—a act criminal libel never tested this Court and one expired by years which its terms three after enactment. As President, pardoned Thomas Jefferson those who were convicted under the and fines levied its prosecu- Act, tion repaid by were Act of Congress.3 general 1 See, g., Baer, 75, e. (concurring). Rosenblatt v. 383 U. S.

2In 1798 stated: Jefferson thereby guard[s] First sentence, in the “[The same Amendment] words, and religion, under the same the freedom of speech, and of press: insomuch, either, that whatever violates throws down the sanctuary others, which covers the libels, falsehood, defamation, heresy equally with religion, are withheld false from cognizance tribunals. ...” 8 The Works of Thomas of federal (Ford 1904) (emphasis Jefferson 464-465 ed. added). g., See, July 4, 1840, 802, e. Act c. accompanied by Stat. Rep. Cong., H. R. No. 26th 1st Sess. a regrettable the Act constituted

consensus was that the First plainly exercise in violation legislative Amendment.4 to the applicable the First Amendment made

With I do not how States through Fourteenth,5 see States ability more to “accommodate” freedoms have speech press or of the This is true Congress. than does form of is civil or whether the accommodation *29 constitutionally may criminal since a State “[w]hat about criminal is likewise bring by means a statute New York beyond the of its civil law of libel.” reach Sullivan, Co. Times v. 277. 254, 376 U. Like Congress, S. power any States are without “to use a civil libel law or impose merely damages discussing public other law to Id., at 295 concurring).6 affairs.” (Black, J., 4 Congress invalidity reporting Senator Calhoun in assumed the to Report of the Act to be a matter “which no one doubts.” with now Sess., (1836). 122, 118, Cong., Senate 3 Bill No. S. Doc. No. 24th 1st 5 Stromberg California, 359, See v. 283 368-369. U. S. 6 public affairs, this case Since involves a discussion I need not point prohibits decide at this whether Amendment all First right say pleases libel actions. “An unconditional what one about what I consider to be the minimum public guarantee is affairs Sullivan, York Amendment.” New Times Co. the First 376 U. S. (Black, J., added). concurring) (emphasis “public But great merely political affairs” includes a deal more than affairs. science, economics, business, art, literature, etc., Matters of all are general any public. Indeed, matters of interest to the matter of general coverage prompt may sufficient interest media be said to public Certainly police killings, be a affair. “Communist con spiracies,” qualify. and the like regressive

A speech more view of free has surfaced but it has gained judicial acceptance. thus far no Solicitor General Bork has stated: protection only speech

“Constitutional should accorded explicitly political. judicial is There is no basis for intervention to protect any expression, scientific, literary other form of be it state libel possibility of of the recognition

Continued the free- issues discussion of leaves suits for Amendment honored speech dom of Fourteenth This protection. Amendment diluted version of First position if that the only possible accepts one view is only applicable through to the First Amendment States process due Fourteenth, Due Process Clause speech only freedom of freedom being which might “implicit concept Court deem to be liberty.” ordered But the frequently Court has rested variety expression pornographic. we call obscene or More- over, category speech ordinarly political, within that we call making there should be no constitutional obstruction laws criminal any speech government that advocates forcible overthrow of the any Bork, Principles or the violation of law.” Neutral and Some Problems, First Amendment L. Ind. J.

According view, Congress, finding upon painting to this aesthet- ically displeasing poorly revolutionary aor novel written or a new theory constitutionally prohibit scientific unsound could exhibition painting, theory. distribution of the book or discussion of Congress might proscribe advocacy also of the violation of *30 law, apparently regard constitutionality. Thus, without to the law’s Congress pass blatantly prohibiting were a invalid law such as one newspaper Government, publisher might editorials critical of the a punished advocating Similarly, for its violation. Dr. the late King, Jr., punished advising Martin Luther could have been for peacefully blacks to in sit the front of for buses or to ask service segregated restaurants law. 7 319, 325. Palko v. Connecticut, See 302 U. S. As Mr. Justice Black noted, by this view government has the test becomes “whether the has abridging an interest in right and, so, the involved if whether that interest importance, opinion is of sufficient majority in the a of of Supreme Court, justify the government’s doing the action in so. Such a doctrine justify can be any government used to almost suppression of First Amendment many freedoms. I As have stated before, times I cannot subscribe to this doctrine because I believe unequivocal the First Amendment’s command that there shall abridgement be no rights of speech of free shows that men

359 free Four- speech press state and free decisions Amendment rather than on the Due generally8 teenth Process Clause alone. The Fourteenth Amendment speaks only process of due but of “privileges also I can citizenship. immunities” of States conceive United of with immunity recog- no claim to privilege higher against nition than the freedoms of abridgment state press. In speech system and of the our federal we are subject all governmental to two regimes, freedoms of speech press infringe- and of protected against only quite illusory. identity ment one are I oppressor indiffer- is, think, would matter of relative oppressed. ence upon

There can impinges be no that a doubt State free and open imposi- discussion when it sanctions the tion damages such its civil libel through discussion laws. Discussion affairs often marked is highly charged us emotions, all, not unlike jurymen, subject are very to those emotions. indeed this It type speech which is reason for the First Amend- speech ment since which emotion is arouses little little in need of protection. publication The vehicle this case was the American most controversial Opinion, a periodical which John disseminates views Birch organization many which Society, deem be Rights ‘balancing’ who drafted Bill our did all the that was to Black, be done field.” A H. Constitutional Faith 52 8See, g., Bridges California, e. 252, (Black, v. 314 U. 263 6 S. n. J.); Pennsylvania, 105, J.) Murdock v. ; 319 U. S. 108 (Douglas, York, 558, Saia New J.); Talley v. 334 Cali U. S. v. (Douglas, fornia, J.); DeGregory (Black, Attorney U. S. v. General New Hampshire, J.); U. S. (Douglas, of Bussell, Elfbrandt *31 J.); Alabama, U. S. Mills v. 384 U. S. (Douglas, J.); 218 (Black, Mine Assn., Workers Bar U. S. Illinois 217, 221-222, (Black, J.). and n. “Commu- matter involved subject offensive. quite agen- law enforcement against “conspiracies nist plots,” police. citizen of a killing cies,” and the press- elements of controversial amalgam such With unpredictable jury determination, jury, ing upon for those who becomes neutral circumstances, most roll the dice a virtual issues, heated venture discuss claims liability from for often massive them separating damage. in dis- only hardy publisher engage It is who will risk, pre- cussion in the face of such Court’s occupation proliferating with standards the area of libel increases the risks. It matters little whether the disregard standard be articulated as “malice” or “reckless “negligence,” jury the truth” or determinations by any virtually criteria are those unreviewable. Court, This in its continuing variegated delineation of mantles of protection, First Amendment like the is, potential only left with publisher, speculation on how jury findings subject were influenced the effect the matter of publication had upon the minds and viscera jury. The standard today announced leaves the States free to “define for appropriate themselves the standard of publisher for a or broadcaster” in the circumstances of this case. This of course leaves the simple negligence standard option, with the jury impose damages upon free finding publisher failed to act as “a reasonable man.” With such continued erosion of First protection, Amendment I fear may that it well be the reasonable man who refrains from speaking. my

Since in view the First and Fourteenth Amend- prohibit ments the imposition of damages upon respond- ent of public discussion I affairs, would affirm the judgment below. *32 dissenting. Brennan, Justice

Mr. Part V in expressed conclusion, I with the agree re- publication at the time that, opinion, Court’s have properly could not article, petitioner spondent’s figure”; “public or “public official” as either been viewed alleged con- dealing with article, respondent’s instead, peti- concerned forces, police local spiracy to discredit public event in “an involvement purported tioner’s Inc., Metromedia, Roosenbloom v. interest.” or general ante, I 4. 331-332, n. at (1971); see 31-32 403 U. S. debate— free and robust however, agree, cannot system functioning of our proper to the so essential space,” adequate “breathing permitted government —-is Button, when, NAACP v. (1963), 371 U. S. strict impose all but holds, may as the Court States private party if defamed for defamation liability statement person and “the substance ” apparent.’ danger reputation ‘makes substantial Ante, in Rosen- I my expressed view at 348.1 adhere Metromedia, Inc., supra, bloom v. that we strike media self- proper accommodation between avoidance of only censorship protection reputations and of individual Co. York Times the New apply require when we States Sullivan, knowing-or-reckless- 254 (1964), U. S. concerning in libel media falsity standard civil actions reports private of the involvement of individuals general events of or interest. does not hold that First Amendment guar- Court speech

antees do not extend to concerning persons’ general involvement events recognizes self-governance interest. It this coun- “profound of our try perseveres because national com- disagree my 1 A I with Brother White’s view that fortiori impose States should have free rein to strict for defamation in involving public persons. cases not public issues that debate on principle mitment to the wide-open.” Id., uninhibited, robust, should be speech (emphasis added). guarantees free Thus, necessarily press knowledge reach “far more than *33 strictly of debate about the official activities various levels Metromedia, Inc., supra, of government,” Rosenbloom v. 41; at if fulfill discussion, it would its “[f]reedom historic function in this nation, must embrace all issues about which information appropriate needed or society enable the members of cope exigencies with the Thornhill period.” Alabama, their U. S. 102 (1940).

The teaching to be distilled from our prior cases is that, public while in interest may events times be influenced notoriety involved, individuals public’s primary is in “[t]he interest the event[,] . . . participant tile conduct and the content, effect, significance supra, the conduct....” Rosenbloom, at 43. public or general Matters interest do not “sud- denly become merely less so a private because individual is involved, or because in some sense the individual did ‘voluntarily’ not choose to become involved.” Ibid. Time, Hill, See Inc. v. 385 U. S. 388 Although acknowledging that First Amendment values are of no less significance when media reports concern private persons’ involvement in matters of public con- cern, the Court refuses to provide, such cases, same level of protection constitutional that has been afforded media the context of defamation of public persons. The accommodation that this Court has established between free speech and libel laws in cases involving public officials and public figures defamatory false- —that hood shown clear and convincing evidence to have published been with knowledge falsity or with reckless disregard of truth —is not apt, the Court holds, because degree does have the same private individual not to rebut comments as media

access to the exposed and he not public person voluntarily has does the public scrutiny. himself forcefully eloquently these are arguments

While I I accept stated presented, cannot reasons them, in Rosenbioom:

“The New York Times to libel applied standard was public public give of a official or effect to the figure Amendment's function to venti- encourage [First] of public issues, lation because the official has less in protecting reputation interest his than individual argument life. While the figures need protection they less because can command media attention to counter criticism *34 may be true for some very prominent even people, then it is rare the case where the denial overtakes original the charge. and cor- Denials, retractions, rections are ‘hot’ not news, rarely receive the prominence story. of original public the When the official or public figure minor is a functionary, or left position has the put public him in the . . eye ,. the argument of loses all In its force. the majority vast public libels involving officials or public ability respond the figures, through media will depend complex same factor on ability which the private a depends: individual unpredictable event of the continuing media’s story. interest Thus unproved, and highly improbable, generalization yet that an as fully class of ‘public figures’ [not defined] involved in matters of public concern will be better able respond through private media than individuals also involved in such matters seems too insubstantial distinction.” a constitutional on which to rest a reed at 46-47. S., 403 U. should not private persons argument

Moreover, Times knowing-or-reck- New York required prove they the risk of defa- do assume falsity less because freely public arena “bears little entering the mation protected by the First relationship either to the values Id., society.” or of our 47. Amendment to the nature exposes all of to some degree Social interaction us public This Court has observed that view. risk “[t]he society of this exposure is essential incident life places primary which value on speech freedom of press.” Time, Hill, Inc. v. at 388. S., Therefore, U.

“[v]oluntarily or we are not, ‘public’ all men to degree. some Conversely, aspects some of the lives even the most men fall outside area matters of general concern. . See .. Connecticut, Griswold v. 381 U. S. 479 Thus, idea that certain ‘public’ figures have voluntarily exposed their entire to public lives inspection, private while individuals have kept carefully theirs shrouded from public is, view at best, a legal fiction. In any such event, a distinction easily could produce paradoxical result of damp- ening discussion of issues of public or general con- cern they because happen to involve citizens while extending constitutional *35 encouragement of aspects discussion of ‘public lives figures’ are not in public the area of or general concern.” Rosenbloom, supra, 48 (footnote at omitted). To sure, be no one publications commends which de- fame good name and reputation of any person: “In an ideal world, the responsibility of the press would match the freedom public given trust Id., it.” at abuse of First Rather,

51.2 some agrees, as Court only to Amendment freedoms tolerated insure general would-be on commentators events of voicing criticism, interest are not “deterred from their though though even to be is believed true and even it is in true, fact because of can doubt whether it proved in court or fear of expense having to do Sullivan, so.” New York Times v. Co. 376 U. S., 279. The and a holding my Court's Brother fortiori White’s views, see n. supra, simply deny free expres- 1, sion its “breathing needed space.” Today’s decision will exacerbate the self-censorship rule of legitimate utter- ance publishers “steer far zone,” wider of the .unlawful Speiser Randall, 357 U. (1958). S.

We recognized in Sullivan, New York Times Co. v. supra, at 279, a rule requiring a critic of official conduct guarantee the truth of all of his factual con- tentions would inevitably lead to self-censorship when respected A commentator has observed that than factors other purely legal operate constraints press: control the “Traditions, attitudes, general political rules are conduct important far more opening controls. The credibility fear of a gap, thereby lessening influence, participants one’s holds some pressures check. large organizations, including Institutional press, some of the effect; orga- have similar it is difficult for open policy making intentionally nization to have an false Emerson, System accusations.” T. Expression The of Freedom of (1970). Typical press’ ongoing proposal own self-evaluation is council, composed to establish a national news of members drawn journalism profession, from the and the to examine and report complaints concerning accuracy news and fairness of reporting by Century largest newsgathering sources. Twentieth Report Council, Fund Task Force for a National A Free and News Responsive (1973). Comment, Expanding Press See also Con- stitutional Liability Protection for the News Media from for Defa- Predictability mation: Synthesis, and the New L. Mich. Rev. 1569-1570 *36 un- truth or prove unable being fearful of

publishers, simply so, to do attempting of expense to bear able by Adoption, articles. controversial printing eschewed where in cases standard of a reasonable-care many States, inter- in matters are involved private individuals likewise today’s decision—will probable result est—the required will be publishers self-censorship since lead to before uncertain factors myriad carefully weigh “elusive,” standard is publication. reasonable-care Time, press with Hill, supra, Inc. v. it saddles the 389; jury might how a guessing “the intolerable burden verify steps taken assess reasonableness accuracy every picture portrait.” reference to a name, publishers Ibid. regime, Under a reasonable-care judgments make pre-publication broadcasters will have to juror about of such assessment diverse considerations the size, operating procedures, and financial condition newsgathering system, as well as the relative costs instituting benefits of frequent costly less and more reporting higher at a level of accuracy. See The Su- preme 1970 Term, 85 Harv. L. Rev. Court, Moreover, proof contrast clear and convincing evidence required under the New York Times test, the proof burden of for reasonable care will doubtless be the preponderance of the evidence.

“In the normal civil suit where preponder- [the ance of the standard employed, ‘we evidence] view it as no more in general serious for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s In favor.’ re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). cases, In libel however, we view an erroneous verdict for the plain- tiff as most only serious. Not does it mulct defendant for an innocent misstatement . . . but the *37 vague- error, beyond of

possibility such even negligence itself, ness of the standard would create which the strong impetus self-censorship, a toward Rosenbloom, First Amendment tolerate.” cannot 403 U. at 50. S.,

And, flexibility inheres hazardous, most which reasonable-care danger standard will create sup- will for jury convert into “an instrument pression 'vehement, of un- caustic, those and sometimes pleasantly sharp . . protected . which must be attacks/ guarantees if the and Fourteenth Amend- First ments are to prevail.” Roy, Monitor Patriot Co. v. U.S.

The Court altogether danger does not discount jurors punish will expression for the unpopular of opinions. This probability accounts for the Court’s may limitation that “the not permit recovery States presumed punitive or damages, at least when is not based on a knowledge showing falsity or reckless for disregard Ante, truth.” at 349. But plainly a jury’s impose liability latitude to want poses due care a far greater of suppressing threat un- popular views than a possible does recovery presumed punitive or damages. Moreover, the Court’s broad-rang- ing examples of “actual injury,” including impairment of reputation standing in the community, as well as personal humiliation, and anguish mental suffering, inevitably allow a jury bent on punishing expression of unpopular views a weapon formidable doing so. Finally, even limitation of recovery to “actual in- jury” much it reduces the size or frequency —however of recoveries —will not provide necessary elbowroom for First expression. Amendment

“It is not simply the possibility of a judgment for damages that results in self-censorship. The very ex- engage litigation, having possibility enough is threat protracted process, pensive wider far to 'steer and debate discussion cause dis- thereby keeping protected the unlawful zone’ a small Too, . . cognizance. . from cussion damage from a substantial equally newspaper suffers be 'actual’ of the award the label award, whether ” Rosenbloom, supra, at 52-53. 'punitive.’ media hand, the other the uncertainties which On by the today’s largely are avoided face under decision I reject argument York Times New standard. *38 to the my improperly judges Rosenbloom commits view of is and what is not an issue task of what determining 3 I Rosenbloom public or interest.” noted in “general Court, taking application of step, The would not limit a novel protection private involving issues of First Amendment to libels general public imposing interest, or forbid the from but would States fault the of the defama without case where substance tory danger reputation apparent. made statement substantial As 48-49, Metromedia, Inc., 12, Rosenbloom v. 29, 403 U. 44 n. S. (1971), question I open n. 17 would leave of what constitutional any, applies standard, published if or when falsehoods are concerning private public broadcast person's either a or activities not scope within the of general public or interest. Parenthetically, my argues Brother White Court’s view that the prevent and mine will plaintiff a some to demonstrate —unable degree vindicating reputation by securing of fault —from his a judgment publication that the argument was false. This overlooks possible statutes, enactment requiring proof fault, of which provide publication for action for retraction or for of a court’s falsity plaintiff determination of if the is able to demonstrate have published false statements been concerning his activities. Cf. Note, Reputation Official, Vindication of the aof Public 80 Harv. L. Although questions 1739-1747 may Rev. be that concerning constitutionality be raised statutes, could of such nothing today certainly (and, I said have as I read the Court’s nothing there) opinion, imply private said should be read to that a prove fault, inevitably plaintiff, unable oppor- must be denied the always performance easy. of this task would not be Id., n. 17. But surely at 49 courts, ultimate disputes of all concerning arbiters clashes constitu- only values, tional would their performing one tra- functions in duty. ditional undertaking Also, difficulty substantially of this task has been lessened body that “sizable both decided before and after cases, Rosenbloom, that employed concept have a matter public concern dealing to reach decisions . cases . . alleged with an of a employed libel individual that public a interest standard . . . that applied and . . cases . Butts public alleged figure.” Comment, libel Expanding The Constitutional Protection for the News Liability Media from Predictability Defamation: New L. Synthesis, Rev. 1560 (1972). Mich. necessarily interest broad; any residual self- may censorship that result from the uncertain contours “general concept interest” should be of publishers far less concern to and broadcasters than that occasioned state laws imposing liability negligent falsehood. petitioner failed,

Since after having given been full fair opportunity, prove respondent published *39 disputed article knowledge with falsity its or with disregard reckless ante, of the see at truth, 329-330, 2,n. I would affirm the judgment of the of Appeals. Court

Me. Justice White, dissenting. years

For very some founding of the —from Nation —the law of defamation and right ordinary of the citizen publication to recover for injurious false his to reputation have been almost exclusively the business of tunity judgment upon to secure a falsity the truth or of statements published about him. Metromedia, Cf. Rosenbloom Inc., supra, 15. n. defa- state typical Under legislatures. courts state prove to had citizen private defamed law, mation hatred, to him subject would only publication a false general publication, such ridicule. Given contempt, punitive while presumed, reputation was damage to law facts. The additional proof required damages remained citizens defamation governing until rela- Amendment because by the First untouched Court was that view the tively recently, the consistent wholly unpro- of speech constitute a class libelous words only to subject limited Amendment; tected the First out 1964. exceptions carved since chosen as the using But that Amendment now, fed- printed a few has Court, in instrument, pages, declaring law uncon- major aspects of libel eralized important respects prevailing defama- stitutional That tion in all or result law most States. accomplished by requiring plaintiff is each and every prove only not defamation action defendant’s culpability beyond publishing defamatory his act of ma- damage reputation terial also actual resulting but punitive publication. from the damages may Moreover, not be by showing recovered malice the traditional will; sense of ill knowing falsehood or disregard reckless of the truth will now required.

I assume these sweeping changes popular will be with but press, is road to salvation for a I court of As law. see there it, wholly are insufficient grounds for scuttling the libel laws of the States in such say wholesale fashion, nothing of deprecating the reputation interest of ordinary citizens and rendering powerless protect them I themselves. do not suggest the decision is illegitimate or beyond the bounds judicial review, but ill-considered exercise of *40 power entrusted to this Court, particularly when the argument of not had the benefit briefs Court has the Court major issues which addressed to most respectfully I now decides. dissent.

I changes it, Lest there be mistake about In very by deeply. the Court’s decision cut wrought 1938, of reflected the rule the Restatement Torts historic publication in written form material— of tending material “so to harm of another reputation community in as to lower him the estimation of or persons to deter third from with associating dealing subjected publisher although no him”1 — special reputation harm actually proved.2' was Re- (1938); Restatement of Prosser, Torts see also W. Law § 111, (4th p. 1971); of Hanson, Torts ed. 1 A. Libel and § 14, pp. (1969); James, Related Torts 21-22 Harper 1 F. & F. ¶ §5.1, pp. Law Torts 349-350 2The opinion observations in Part I of this as to the state current of the law of in defamation partially various States are based upon the Restatement of Torts, published 1938, in first and Tentative 11 and 12 (Second), Drafts Nos. Restatement Torts released in 1965 and respectively. The recent transmittal of Tentative April Draft No. dated 25, 1974, to the American Law Institute for its consideration resulted in the has of much elimination prevailing discussion of the sug defamation rules and gested changes many previously of the rules themselves found in the earlier development appears Tentative Drafts. This to have largely been influenced the draftsmen’s “sense where the law subject important thought should be to stand.” Restate (Second) Torts, (Tent. p. ment 20, Apr. 25, vii Draft 1974). No. that, It large is evident extent, these latest views are colored plurality opinion in Rosenbloom Metromedia, Inc., (1971). See, U. S. 29 g., e. (Second) Torts, Restatement swpra, xiii, 569, 580, 581A, 581B, 621. There §§ is no indication draft, however, the latest that the conclusions reached in Tentative Drafts Nos. 11 and 12 are not an accurate reflection of the case law in the prior States the mid-1960’s developments to the occasioned by the plurality opinion in infra, Rosenbloom. See at 374G575. *41 defense, was a Truth (1938).3 569§ of Torts statement circula- a false but, given privileged; were libels some presumed was reputation damage tion, general any along with jury, be awarded could damages emotional loss and pecuniary such as special damages recovery the rule allowed very At the least, distress. defamatory publication damages of nominal performed thus per se and actionable plaintiff by enabling the vindicatory function “a defamatory publication brand publicly to pre- is this rule value of salutary social false. a defamed permits since it often in character ventive a defam- character of expose groundless person reputation has harm to the atory rumor before p. 166. b, comment Id., § resulted therefrom.” slander, not libel but was If the defamation was offense; criminal per only imputed se if it actionable disease; loathsome and communicable or venereal unchastity by business; of a lawful improper conduct types other actionable, To be all Id., § a woman. 570. proof special dam- required of slanderous statements or emotional reputation than actual loss of age other always in the special damage being almost distress, Id., pecuniary form of material or loss of some kind. pp. comment b, § 575 and 185-187. per for libel or se included “harm

Damages slander thereby reputation person caused to the defamed proof or in the absence of of such for the harm, harm Id., normally from which results such a defamation.” libel-and-slander-per-se § 621. At the heart of the Prosser, supra, 1, 112, p. 85; Murnag- See also W. n. 752 and n. § han, Figment Philosophy Requirement From to Fiction to —The Damages Actions, Proof of Libel Cath. U. L. Rev. 11-13 lay general damages scheme the award damage They special reputation. granted loss of without were proof judgment history con- because was publication likely injury itself so to cause tent of was many “in cases the because effect impossible subtle and it is statements so indirect *42 in to directly person to trace the thereof loss effects Id., a, p. defamed.” comment 314.4 Proof of actual 621, § injury reputation proof to was itself insufficient of special necessary support to for damage slander per se. But if in special damage actionable form of or pecuniary material proved, general loss were reputation for damages injury to could had without be proof. further “The plaintiff may recover not for the only special harm so also for caused, general repu- but loss of Id., tation.” 575, a, p. § comment 185.5 The to re- right cover depended emotional distress upon the defend- ant’s otherwise being liable either libel or slander. Id., § 623. Punitive damages upon proof were recoverable special Id., facts amounting express to malice. § 908 p. and b, comment 555.

4 Proof of the injury defamation itself established the fact and damage right reputation, existence of some to and the jury permitted, was evidence, even without other assess damages probable that were considered to be the natural or conse quences of the 621, words. Restatement of Torts com § p. a, (1938); ment 314 Gatley, also see C. Libel and Slander 1004 (6th 1967); Newell, (4th ed. M. 721, p. Slander and Libel ed. § 1924); generally McCormick, Damages see C. 116, pp. Law of 422- § (1935). respect, therefore, In this damages presumed were impossibility of the affixing because monetary an exact amount for present injury and future plaintiff’s reputation, to the wounded feel ings humiliation, business, and any consequential loss physical pain. illness or Ibid. Prosser, supra, See also 1, 112, n. p. 761; Harper James, & § supra, 1, §5.14, p. 388; n. Note, Developments in the Law —Defa mation, 69 Harv. L. Rev. 939-940 (Sec- for Restatement mid-1960’s in the

Preparations sub- deemed what were reflected of Torts ond) primarily of defamation, law changes stantial where to those se libels limiting per toward trend on its apparent is publication defamatory nature apparent “defamatory innuendo e., i. where face, reference extrinsic without itself publication from the (Second) Restatement inducement.” way of facts Apr. 27,1966). Draft No. 569, p. (Tent. § Torts per to be se continued sort slanders Libels of this special damage proof of actionable without recognized (cid:127) All would reputation.6 other defamations injury or of material special injury the form require proof change re- asserted pecuniary loss. Whether heavily was but prevailing debated,7 flected law recurring are at the time that there unquestioned was and should be which libel slander are situations se. per actionable

In surveying law, proposed the current state of the except (Second) Restatement observed that courts “[a] any libel which Virginia agree defamatory upon proof its actionable without . . damage face is . .” (Second) p. (Tent. § Restatement of Torts Draft 569, Apr. 1965). jurisdictions No. Ten 11, continued to support old rule not defamatory that libel on its face innuendo depends whose on extrinsic facts is action proof able without of damage although slander would not Twenty-four jurisdictions be. were said to hold that libel defamatory not on its face is to be treated like slander proof thus not actionable without of damage where per Also actionable se were those libels imputation, where the although apparent itself, from the material would have been per spoken slander se if rather than written. (Second) Restatement 569, pp. 29-45, Torts (Tent. § 47-48 12, Apr. 27, Draft No. 1966); see also Murnaghan, supra, n. 3. Id., 569, p. law in six § would not be. 86. slander The but in an unsettled state jurisdictions was found to be (Second). likely consistent with the Restatement most Id., in to p. Virginia thought 88. The law was § 569, proof of special damage actionable without consider libel only be, regardless where slander would of whether the Id., p. All defamatory § libel is on its face. 89. States, thought that time therefore, recognize were at important actionable categories defamation were per apparently se.8 question Nor was raised at special upon proof damage time that form pecuinary general damages reputation material or loss, could be proof. recovered without further

Unquestionably, recognize state law continued some well absolute, publish as some conditional, privileges defamatory materials, fair com- including privilege of ment defined situations. But it remained true that in a wide range ordinary citizen could situations, prima make out a facie case without more than proving defamatory publication and could recover general dam- ages injury to his reputation defeated unless defense of truth.9 impact of today’s on decision traditional law

of libel is immediately indisputable. obvious and No longer plaintiff will the be able to rest his proof case with of a libel on proof its face or of a slander his- torically per actionable se. In he must addition, prove some further degree culpable part conduct 8Applying settled law, Illinois the District Court this case *44 Communist, per held that it is libel se to label someone a 306 F. in. Supp. (ND 1969). appears This to have been the law Illinois at the time Gertz brought his See, g., libel Co., suit. e. Brewer Publishing v. Hearst (CA7 185 F. 2d 1950); Hotz Telegraph Co., v. Alton Printing App. 324 Ill. 57 N. E. (1944); Cooper 2d 137 v. Illinois Publish- ing Printing & Co., 218 App. Ill. or falsehood reckless intentional such

publisher, he faces respect, in this if he And succeeds negligence. reputation of for loss recovery obstacle: another still actual of proof “competent” upon be conditioned will bewill community. This in the standing his to injury even of defamation the the nature regardless of true state- reprehensible particularly one of those it is though words traditionally made slanderous that have ments or of by publisher the of fault proof actionable without The Court his impact publication. of damaging the publica- some experience of rejects judgment and actual inherently capable injury, of are so tions risk of false- prove, injury so difficult not the victim. publisher, hood should borne plaintiff burden Plainly, with the additional it will be proving negligence fault, exceedingly or other him impossible, for to vindicate his difficult, perhaps securing reputation judgment interest a nominal practical judgment being effect such a damages, judicial publication declaration that was indeed false. the new rule can plaintiff lose, Under true, because the statement but because was not negligently made. too, requirement proving special injury

So reputation may before general damages be awarded will clearly eliminate rule, out prevailing worked over very period long time, that, the case defama- se, per recovery tions not actionable of general dam- injury reputation ages may also be if had some pecuniary form material or is proved. loss Finally, an inflexible imposed federal standard is for the award punitive damages. No will longer it be enough to prove ill will and an attempt injure.

These are radical changes in the law and severe prerogatives invasions of the of the States. They should

377 Amendment by to the First required least be shown present our circumstances. Neither or necessitated has demonstrated. been Sullivan, New York Times Co. v. 376 U. S. course,

Of Baer, v. (1966), 254 Rosenblatt 383 U. S. 75 (1964); Associated Press v. Publishing Curtis Co. Butts and v. Walker, worked (1967), 388 U. S. 130 have themselves major in defamation law. Public officials and changes they if are for public figures, general damages to recover injury falsehood or prove knowing to must reputation, required disregard reckless the truth. The States were conform in Rosenbloom to these decisions. Thereafter Metromedia, Inc., (1971), U. 29 three Members 403 S. urged applied of the Court same standard be publication whenever the event of concerned an general concern. purported But none of these cases in all foreclose recovery ordinary circumstances citizen traditional standards liability, and until a majority of today, the Court had not supported the proposition given jury court or that, liability, may general award damages a reasonable amount without proof further of injury.

In brief period since Rosenbloom was decided, at least States several federal of appeals courts obliged have felt New York consider the Times con- privilege liability stitutional extending to, words the Rosenbloom plurality, “all discussion and communication involving of public matters or general Id., concern.” at 44.10 Apparently, however, general 10See, g., e. West v. Publishing Co., Northern 487 P. 1304, 2d (Alaska 1971) (article 1305-1306 linking companies owners taxicab illegal liquor minors); sales to Carnes, Gallman v. 987, Ark. (1973) 2d (matter S. W. concerning state law school professor dean); and assistant Publishing Belli v. Curtis Co., 25 Cal. App. 384, 102 Rptr. 3d 122 (1972) (article Cal. concerning attorney standard once that recoverable remain still damages officials and Except where satisfied. *46 repudi- now the Court concerned, are figures public 371, 378- Moriarty Lippe, v. 162 Conn. reputation); national with police (1972) certain (publication about 326, 2d 330-331 379, 294 A. 1972) (Fla. Time, Inc., 745, 2d officers); Firestone v. 271 So. 750-751 public legitimate (divorce not a matter of prominent citizen (La. 1973) Snyder, 660, 2d v. 277 So. 666-668 concern); State mayoral of a candi- prosecution defeated (criminal defamation candidate); Twohig v. made about another statements date for — Corp., —, —, E. 2d Boston Mass. 291 N. Herald-Traveler (1973) (article concerning 398, 400-401 a votes candidate’s Lynn, Priestley Hastings Publishing Sons legislature); v. & Co. of (article 118, (1971) 271 an archi 360 Mass. N. E. 2d 628 about Herald- school); commissioned a to build a Harnish v. tect town 334-336, (1972) Co., Inc., 146, 264 326, Mail Md. 286 2d 151 A. (article concerning property substandard rental a member owned city housing authority); Darby Sons, Inc., Standke v. B. a E. & 468, 139, 476-477, (1971) (newspaper 291 2d Minn. 193 N. W. 145 concerning grand performance jurors); editorial Whitmore v. City Co., 45, (Mo. 1973) App. Star 2d 49 Kansas 499 S. W. Ct. (article concerning juvenile officer, operation a of a detention home, grand jury West, Wolff, investigation); and a Trails Inc. v. 32 52, (1973) (suit 207, 214-218, against Y. 2d 2d N. 298 N. E. 55-58 Congressman investigation a for an into the death of schoolchildren Twenty-five accident); Corp. v. in a bus East Street Restaurant 40th Forbes, Inc., 595, (1972) 30 N. (magazine Y. 2d 282 N. E. 2d 118 concerning food); City Buffalo, article a Kent restaurant’s v. 29 818, (1971) (television N. Y. 2d 277 N. E. 2d 669 station film plaintiff captured robber); Frink McEldowney, a v. 29 N. Y. 2d 720, (1971) (article 275 N. 2d 337 concerning attorney repre- E. an senting town); Publishing (9th v. Mead Horvitz Co. Dist. Ohio App. 13, 1973) Ct. June (unpublished), denied, 416 U. 985 cert. S. (financial (1974) participants condition of development in the of a large apartment contractors) complex involving ; numerous local Washington Publishing v. Co., (Okla. World 1973) 506 P. 2d 913 (article about dispute contract between a candidate for United States party’s Senate and county Triangle his chairman); Matus v. Pub- lications, Inc., 384, 395-399, 445 (1971) Pa. 286 357, A. 2d 363-365

379 appears in Rosenbloom and opinion plurality ates by three other set forth espouse standard now struggle in that ease. The must Justices States (radio gross overcharging “talk show” host’s discussion snow- plowing driveway general not considered an event of or con- R.L., cern) ; v. El Continental Autobuses Internacionales S. De Ltd. (Tex. 1972) (news- Publishing Co., App. 2d S. 483 W. Ct. Civ. concerning company’s raising paper article a bus of fares -without law); 369, Harris, notice and in violation of v. 213 Va. 372- Sanders 754, (1972) 373, (article concerning English E. 2d S. 757-758 professor community college); at a Old Dominion Branch No. Austin, (1972), ante, p. rev’d, 213 Va. 192 S. E. 2d 737 (plaintiff’s join failure a labor union considered not issue general concern); Daily Record, Inc., 2d Chase v. 83 Wash. 37, 41, (1973) (article concerning port 515 P. 2d district *47 Argus commissioner); Publishing Co., 827, v. 816, Miller 2d 79 Wash. (article 101, (1971) 490 concerning political P. 2d 109 of the backer v. candidates); Helmbrecht, 586, 196 Polzin 54 2d 578, 2d N. Wis. W. 685, (1972) (letter 690 newspaper concerning reporter editor of a financing pollution and the measures). of control The following Appeals adopted United States Courts of have plurality Publishing opinion City in Rosenbloom: Cantrell v. Forest Co., (CA6 484 1973), F. 2d 150 pending, (article cert. No. 73-5520 concerning family members of the highly publicized victim of a bridge proof malice); disaster not actionable absent of Porter actual Publications, v. Inc., 744, 1973) Guam (CA9 (article 2d 475 F. 745 concerning citizen’s arrest for theft of a cash box an event considered general public interest); Inc., or Time, Cervantes v. 464 F. 2d 1972) (CA8 (article 991 concerning mayor alleged organized and crime connections conceded to be a matter or general concern); Time, Inc., Firestone v. 460 F. 2d 712 (CA5 1972) (magazine concerning prominent article citizen’s use of and detectives electronic surveillance in connection divorce); a Broadcasting with Davis Co., v. National 447 2d F. (CA5 1971), aff’g 981 Supp. (ED (television 320 1970) F. La. report person caught about a up surrounding in the events Kennedy assassination President considered a matter interest). However, at least one Appeals, Court of faced with an summary appeal judgment from publisher diversity favor of a in a brought by a Philadelphia libel suit retailer, expressed has “discom- concepts ill-defined meaning such discern rules fashion novel fault” and to “liability without been These matters have recovery damages. workability and their parties argued briefed yielding seriously explored. Nevertheless, has not been new impulse to announce a apparently irresistible to the interpretation of the First Amendment, and different history precedent its rush to discards Court law in accordance with the inclina- refashion defamation majority of perhaps evanescent Justices. tions II hardly so, it could do The Court does not contend, Amendment intended to those who wrote the First prohibit sphere of the Federal within its Government, Columbia, Territories the District of influence remedy peaceful from providing the citizen adoption of the damaging falsehood. At the time of the many Amendment, consequences First of libel law already particularly described had developed, the rule inherently injurious that libels and some slanders were so they special proof actionable without of dam- were in Roth age reputation. pointed As the Court out States, United (1957), U. S. 10 of States that had ratified the Constitution 1792 had provided constitutional guarantees themselves for free *48 accepting fort the plurality opinion Rosenbloom as a definitive appropriate statement the House, law . . . Gordon v. Random .” Inc., (CA3 1356, 1973). 486 F. 2d 1359 previously 2, supra, As discussed in n. proposed the latest draft (Second) substantially Restatement of Torts reflects the views of plurality. anticipates the Rosenbloom It also Supreme “that the Court will hold that strict for defamation is inconsistent free-speech provision with the of the First . Amendment . ,”. (Second) 569, p. (Tent. Restatement of Torts 59 20, § Draft No. Apr. 25, 1974), well pre-Rosenbloom as as the demise of damages id., 621, pp. rules. See 285-288. § provided and 13 of 14 nevertheless expression, the the prosecution Revolution, of libels. Prior to the adopted Colonies had the common law libel.11 American press Contrary popular to some freedom notions, sharply in colonial was curtailed America.12 Seditious punished contempt by legisla- libel colonial was tures a criminal in the colonial courts.13 and as offense if First Amend- any, evidence exists that

Scant, libel, was intended the common ment to abolish law at extent of ordinary least citizens depriving against On the meaningful redress their defamers. contrary, conceded on all sides that the common-law

“[i]t subjected responsibility rules the libeler to or the injury, or disorder scandal occasioned conduct, his are not abolished protection press extended in our constitu- tions.” 2 T. Constitutional Cooley, Limitations 883 (8th 1927). ed.

Moreover, consistent with the Blackstone these formula,14 11Merin, Supreme Mary Libel and Court, & L. Rev. Wm. 371, (1969). 12 Sutherland, A. Origin Constitutionalism in America: and Evolu tion of (1965). Its Fundamental Ideas 118-119 generally Levy, Legacy See L. Suppression: Freedom of Speech Early History (1960). and Press American 14The who adopted men wrote and the First Amendment were steeped England. in the common-law They tradition of read Black stone, “a classic tradition of the bar in the United States” and “the oracle of the common law in the minds of the American Fram Hurst, ers ... .” J. The Growth of American Law: The Law Levy, (1950); supra, Makers 257 13, 13; n. at see also Suther land, supra, 124-125; n. States, Schick v. United 195 U. S. they From him major learned that means of ac complishing speech press free prevent prior was to restraints, the publisher being subject later legal publication action if his was injurious. Blackstone, 4 W. Commentaries *150-153. *49 382 the of freedom abridge did not actions

common-law Suppression: of Legacy L. Levy, See press. generally History Early American Speech of Press Freedom 11 Court, Supreme Libel and (1960); Merin, 247-248 Fair Com- 376 371, (1969); Hallen, & L. Rev. Mary Wm. Alexander Meikle- Rev. ment, 8 Tex. L. Amend- the First generous reach to who accorded john, acknowledged: ment, nevertheless society, any well-governed doubt “No one can that, duty right both has legislature speech. forms Libelous asser- certain prohibit punished. may be, and must forbidden and be, tions that All these necessities too must slander. . . . So provided limited are speech recognized They were unknown under the Constitution. not First Amendment. That to the writers does may granted, we take it for amendment, then, abridging speech. But, not at the same forbid abridging it does time, forbid freedom speech. to the of that solving paradox, It apparent we are self-contradiction, summoned if, men, free we wish know right what the speech freedom is.” Political The Con- Freedom, People Powers of 21 (1965). stitutional also The Leflar, See Free-ness of Free 15 Yand. Speech, L. Rev. 1073,1080-1081 (1962).

Professor Zechariah First a noted Amendment Chafee, scholar, persuasively has argued conditions arbitrarily “do fix between division lawful and unlawful for all speech Speech time.” Free in the 14 (1954).15 United States At the same time, however, Meiklejohn, also See Absolute, First Amendment Is An Sup. Ct. Rev. 264: “First, political the Framers initiated a develop- revolution whose throughout process ment is still in Second, the world. like most *50 may have intended to he notes that while the Framers any prevent prosecutions abolish libels and to seditious by the for criticism of Govern- Federal Government the “the free do speech wipe not out the ment,16 clauses to obscenity, common law as and defamation profanity, of individuals.”17

The in Congress and the the Bill debates States over of are and Rights unclear articulated inconclusive of intention Framers to press the as the free guarantee.18 know that Benjamin Franklin, Adams, We and John William Cushing press favored freedom of limiting truthful while as statements, others such James Wilson suggested a restatement of the Blackstone standard.19 revolutionaries, the specific could not Framers foresee issues which would arise their as 'novel idea’ exercised its domination over governing rapidly developing rapidly activities of nation in fundamentally changing and sense, In world. Framers they doing. sense, did not know what were And in the same that, experience, it still true after two centuries of we do they doing, doing. know what not were we or what ourselves are now significant “In sense, however, they a more abstract and more both adoption principle and we have been aware of self-government by People’ upon 'The of nation set loose us and upon large transforming the world at idea which is still men’s conceptions they they governed.” of may what are and how be best 16 Illinois, See Beauharnais v. 250, (1952) (Black, 272 343 U. S. J., dissenting). Brant, interprets who the Framers’ intention more liberally Chafee, speech protection than nevertheless saw the free bearing upon government political as criticism speech. other Brant, Rights (1965). I. Bill 236 17 Chafee, Speech Z. Free (1954). United States Cong. Brant, See Annals of supra, 729-789 See also 16, 224; Levy, supra, n. at n. 224.

19 Merin, supra, 11, at Franklin, example, n. 377. observed: Liberty merely Liberty “If the Press were understood discussing Propriety political opinions, Public Measures and you us please: let have as much of Liberty But if it means the affronting, calumniating, defaming another, I, my one “Congress formula Madison’s endorsed Jefferson speech the freedom abridging . no law . . make shall only suggested: he press” after or the right deprived of their people “The shall anything publish or otherwise speak, write, injuriously life, liberty, affecting but false facts F. Jefferson Mott, . . of others . reputation (1943).20 the Press *51 of Con- the Members been that expressed Doubt has reaching even Amendment as the First envisioned gress 11 & Supreme Win. Court, and the far. Libel Merin, (1969). L. Rev. Mary 371, §379-380 with repeatedly in has dealt years bygone Court This from the District of Columbia libel and slander actions cases First Although the Territories. and from these discussed, not expressly Amendment considerations were that opinions unmistakably of the Court revealed firmly place law libel was in those areas the classic g., e. Post See, Washington federal law where controlled. Warner, Co. v. 250 U. 290 Chaloner, (1919); S. Baker v. Oyster, 231 588 Nolle v. 165 (1913); U. S. 230 U. S. States, Dorr v. (1913); United 195 U. (1904); S. 138 Pol- Nicholls, Lyon, lard v. 91 (1876); 225 White v. U. S. 3 How. (1845). 266 prior

The Court’s view New York Times consistent to Sullivan, Co. v. 376 U. 254 (1964), S. was that myself part, willing part my own with when Share of it our Legislators please shall Law, cheerfully so to alter the and shall exchange my Liberty Abusing consent to Privilege others for the being myself.” of not abus’d Writings Franklin, (Smyth B. 1907). ed. 20Jefferson’s noted opposition public prosecutions libel government figures did depriving not extend to private them of Mott, libel supra, actions. There is strong suggestion 43. even a that he favored prosecutions. state Hudon, E. Speech Freedom of Press America 47-48 wholly unprotected by utterances were the First Amend- General, v. Colorado ex rel. Attorney In Patterson ment. 454, (1907), 205 U. said example, S. Court press protected freedom of although speech is Constitution, from these abridgment provisions prevent punishment “do not of such subsequent may contrary be deemed welfare.” This in Near rel. repeated statement was v. Minnesota ex Olson, 283 S. (1931), U. the Court adding: recognized

“But it punishment for the abuse liberty of the accorded to press is essential protection common public, and subject law rules that responsibility the libeler to for the public offense, as well as for the injury, are not abolished protection extended in our Id., constitutions.” at 715.

Chaplinsky v. New Hampshire, 315 U. 571-572 S. (1942) (footnotes reflected the same view: omitted),

“There certain narrowly are well-defined and lim- *52 ited prevention classes of the speech, punish- and ment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, libelous, the and the insulting or ‘fighting’ words—those which their very utterance injury inflict or tend to incite an immediate breach of peace. It has been well observed that such utterances no part are essential any exposition of and ideas, are such slight social value a step as to truth that benefit that may be derived from them clearly is outweighed by the social interest in order morality.” Illinois, Beauharnais v. 343 U. S. 250, 254-257 (1952) (footnotes repeated omitted), the Chaplinsky statement, noting also that nowhere at the time of adoption crime that any suggestion there “was Constitution States, v. United Roth And abolished.” libel further the Court omitted), (footnote at 483 S., 354 U. Amendment: First of the meaning examined that apparent it is history, “In of this light was Amendment First of the phrasing unconditional This every utterance. protect intended not concluding Court from prevent this did not phrasing area within the are not libelous utterances that Beauharnais v. constitutionally speech. protected At the time of 266. Illinois, 343 U. S. obscenity law Amendment, of the First adoption libel but there fully developed law, not as was show contemporaneous evidence to sufficiently in- protection too, was outside the obscenity, press.” speech tended of this accept generality could not Court Sullivan, supra. York New Times Co. v. historic view Amendment was Court held the First There libel and that forbid seditious intended to actions by public officials were therefore not defamation actions If subject to the traditional law of libel slander. later, figures occupying these officials semi (and, positions) official or were influential, although private, to. they only required prove were not recover, publication knowingly was false but also that it was false published falsity. with disregard reckless for its truth or This view that the First Amendment was written to for expressions For general proposition further that libels are protected by Amendment, Konigsberg the First see State California, Bar (1961); 366 U. S. 49-50 and n. Times Film *53 Corp. City Chicago, 43, v. 365 (1961); Pennekamp U. S. 48 v. Florida, 331, 328 (1946); U. S. 348-349 cf. Paris Adult Theatre I Slaton, 49, Stanley v. 413 67 (1973); U. S. Georgia, v. 394 U. S. 557, (1969). 561 n. 5

387 dispute one side the bid libel reflected seditious century22 and also of the raged turn nineteenth mirrored some later scholars.23 the views of Times, York of New me meaning central

The. laws, to libel is that the First Amendment as relates offi- government seditious libel—criticism beyond of the 376 police power cials—falls State. society ours, In a U. at 273-276.24 democratic such as S., the citizen has his privilege criticizing government New York Times and its officials. But neither nor its progeny suggest that the First Amendment intended all deprive circumstances to citizen of his historic published recourse to redress falsehoods damaging contrary reputation history or that, precedent, interpreted. Simply Amendment should now so put, First Amendment did not confer a “license defame the citizen.” Douglas, People W. of the 36 Right

I do not labor the foregoing matters to contend Court is foreclosed from reconsidering prior interpreta- tions First appar- Amendment.25 But the Court ently finds a clean slate where in fact we have experience instructive historical from dating long before 22 Levy, supra, 13, See n. at 247-248. 23See, g., e. Abrams States, 616, (1919) v. United 250 U. S. (Holmes, J., dissenting). 24 Kalven, The York New Times Case: A “The Note on Central Meaning Amendment,” Sup. of the First Ct. Rev. 208-209. language “The of the First Amendment is to be read not as barren dictionary symbols words found in a but as of historic ex perience presuppositions illumined employed of those who every them. ... As in the case of provision other of the Constitu crystallized tion that is not by concepts, nature technical its the fact self-defining First Amendment is not and self- enforcing impairs neither its usefulness compels paralysis nor its living instrument.” Dennis States, United U. S. (1951) (Frankfurter, J., concurring). *54 govern- democratic notions of their with settlers, the first land. Given to this journeyed freedom, human ment and and because history precedent of background rich First construe fundamentals when we with we deal pre- and be with care proceed we should Amendment, jettison before we compelling more reasons sented with more radical to an even law of the the settled States extent.26

Ill self-censorship of dangers The Court concedes that protect- interest are insufficient to override the state are reputation private of individuals who both ing of concern than helpless deserving more and more state defend public persons with more access to the media to It to condition the themselves. therefore refuses plaintiff’s recovery on a showing intentional reckless required by falsehood as New York Times. But the Court nevertheless the reach extends of the First Amendment to by all requiring defamation actions that the ordinary integral law part defamation has been an 26 “[T]he England, laws of the colonies and the states since time immemorial. many judgments So actions have been maintained and recovered under the various of libel validity laws the Constitutional only libel willing actions could be denied a Court to hold all of predecessors wrong its interpretation were in their of the First Amend years precedents ment two hundred should be over Rutledge, ruled.” The Law of Developments, Defamation: Recent Lawyer 409, (1971). 32 Alabama prevailing common-lawlibel country rules in this have remained England and the Pedrick, Commonwealth nations. Freedom of the Press and the Law of Libel: The Translation, Modern Revised Q. 581, 49 Cornell (1964). many L. years 583-584 reviewing After English defamation, law of the Porter Committee concluded “though the law requires as to defamation some modification, principles upon the basic which it is founded are Report not amiss.” of the Committee Defamation, on the Law of Cmd. No. ¶ p. its publication when libeled citizen, part culpability on the prove degree must some face, of a beyond publisher the circulation damaging A rule least as strict would falsehood. *55 pub- character of the be called for where the Ante, apparent from face. at lication is not its 348.27 liability major if hurdle to establish Furthermore, this injury requires proof is the of actual surmounted, Court reputation may injury before such damages be awarded. proceeds it though Court were on writing

tabula rasa suggests that it must mediate between unacceptable two rigors choices—on the one hand, York of the New Times rule which thinks the Court would give recognition insufficient of the to the interest private and, plaintiff, on the other hand, prospect imposing “liability without fault” on press and others who charged are with defamatory Totally utterances. history ignoring and settled First Amendment law, purports Court to arrive at “equitable compromise,” rejecting both what it and New considers faultless York Times malice, but insisting some intermediate degree of Of fault. course, the Court necessarily discards judgment contrary arrived in the 50 that the States reputation interest of the private citizen is deserving of considerably more protection.

The Court a deep-seated evinces antipathy “liability without fault.” But this catch-phrase no talismanic has significance is almost meaningless in this context appears where the Court to be addressing those libels and slanders that are defamatory on their face and where 27If I correctly, clearly read the Court it implies that those publications that do danger not make reputation “substantial apparent/’ the New York Times apply. actual-malice standard will Apparently, would be true even imputation where the concerned conduct per condition that would be se slander. nature from the doubt aware no publisher repu- inherently damaging would be material that it he knowing that notwithstanding, publishes He tation. intend must he knowledge, injury. With this will inflict privileged he is being excuse injury, to inflict that his But as the truth. published to do so—that he has very is a circulated to turns what has out, he “faultless”?- nevertheless falsehood. Is he damaging defense about his that the mistake Perhaps it can said it is the fact remains good faith, was made but it could publication knowing he who launched reputation. ruin a put the

In law has heretofore circumstances, these victim is publisher risk of on the where the falsehood are special privilege no grounds citizen and this risk to invoked. The Court would now shift *56 he to victim, though nothing even has done invite helpless wholly and is to fault, is innocent of calumny, I resistance injury. jurisprudential avoid his doubt that employ- liability to fault ground without is sufficient law of ing the First Amendment to revolutionize the libel, my legal poses and in rules no view, body realistic press public. threat to and its service to the today press me, is and To it is vigorous robust. quite incredible suggest to that threats of libel from suits press are from causing citizens to refrain I publishing support the truth. know of no hard to facts and proposition, the Court furnishes none. industry The communications become increasingly has powerful concentrated in a few operating hands lu- very reaching crative businesses across the Nation and into every almost home.28 Neither the industry as a whole nor 28 study comprehensively recent A has detailed the role impact of mass Note, communications this Nation. See Media and the Society, First in a Amendment Free 60 Geo. L. J. 867 For radio, example, of the American households have a 99% 77% and we easily intimidated, components its individual are pay them to they Requiring are are not. fortunate that they private reputation do damage for the occasional to no play part performance will their future substantial or their existence.

In any principal if concern event, the Court’s protect industry large from libel communications requirements it would its new judgments, appear respect punitive with be general damages would Why ample protection. compelled it also feels esca- I late the fathom, threshold standard cannot daily. average yearly hear at one radio newscast In least viewing per day. Id., home television time was six hours almost at 883 n. 53. years

“Sixty ago, 2,442 daily newspapers published nationwide, were competing Today, only and 689 cities had dailies. 42 of the by daily 1,748 papers cities served one of the American is there a competing newspaper separate ownership. daily under Total circu- passed has copies, percent lation million but over of this by only ownership groups. circulation is controlled “Newspaper profited greatly owners have from the consolidation journalism industry. report yearly profits Several them dollars, in the profits ranging tens of millions of with after tax from gross percent seven Unfortunately, revenues. the owners profits expense have made their at the interest in free expression. newspaper As the ownership narrows, broad base of opinions variation of facts and received from antagonistic increasingly sources is Newspaper publication limited. leading industry. is indeed a Through American its evolution in direction, press has come to group dominated select *57 prime whose interest is economic. “The effect of consolidation newspaper industry within the is

magnified by degree the Sixty-eight ownership. intermedia cities by only have a daily radio station owned the newspaper, local newspaper television stations have In 11 affiliations. cities diversity ownership completely lacking is only with the television newspaper station Id., under the same control.” at 892-893 (footnotes omitted). Congress, See also Newspaper FCC Consider TV, Control of Local Q. Cong. 659-663 many instances eliminate this will when particularly determi- judicial securing possibility plaintiff’s the false, indeed was publication damaging the nation money damages. to recover he is entitled or not whether prove must the rules, plaintiff new Court’s the Under degree also some but defamatory statement the only not may be The publication it. accompanying of fault his unjustified, him but wholly wrong and the false to prove for failure dismissed case will nevertheless be I part publisher. the fault on the or other negligence in this manner the risk unacceptable to distribute find it wholly injury; victim to bear and force the innocent only culpable defamer is the for, two, as between that he was he who circulated a falsehood party. It is publish. required why ordinary is for me understand It difficult carry damage citizen himself the risk and suffer should Amendment injury order vindicate First values press and others from for cir- protecting This culating particularly false information. true no purpose because such serve statements whatsoever interest or furthering the search for truth on may search but, contrary, frustrate that and at injury the same time inflict great the defenseless indi- press vidual. owners of the and the stockholders enterprises communications much can better bear if they the burden. And cannot, large pay should somehow for what is essentially a public benefit derived at expense.

IV A Not content with escalating the threshold require- ments of establishing liability, Court abolishes the ordinary damages New York Times undisturbed rule, *58 glanders defamatory or as to libels and later cases, that, and reputation presumed to is injury on their face, with may along be awarded what- general damages may sought. Apparently be special damages ever unspecified in some and because Court feels that they plaintiffs of recover where unknown number cases, injury they deserve, more have suffered no recover than “oddity rule as an law.” The tort dismisses thereby accept fact of Court case refuses prima per proof dissemination a se facie wide libel as of injury sufficient at the to survive motion dismiss of plaintiff’s close case.

I have repeating, said but it that even before, bears plaintiff if the monetary damages, should recover no he should prevail be judgment able and have a publication beyond is false. But courts and legis- that, literally latures centuries have thought generality cases, plaintiffs seriously libeled be will if shortchanged they prove injury must extent to their reputations. Even where libels or are slanders not on defamatory their face and special must damage when shown, that showing made, is general damages for reputation are injury specific recoverable without proof.29 29Having held plaintiff that the defamation is limited to recover

ing injury," for “actual the Court hastens to add: say injury “Suffice it to out-of-pocket actual is not limited to Indeed, loss. customary types the more of actual harm inflicted impairment reputation falsehood include and stand- ing community, in the personal humiliation, anguish and mental suffering.” Ante, at 350. It pointed should be prevailing law, out that under the where the per defamation is not proof actionable se “special damage” required, is showing injury reputation insufficient; actual pecuniary but if general shown, damages loss is reputation are changes recoverable. latter, The Court former, but not the rule. present Also law, pain under suffering, although shown, do not *59 it point one states clearly when at right The is Court experience in our rooted defamation is that “the law Ante, at 344 with rarely up a lie.” catches that the truth viz., experience teaches, that ignores But what n. 9. prove to difficult reputation recurringly is damage to that destroy repeatedly proof actual would requiring that and Eminent au- adequate compensation. for any chance thority has warned be will damage of actual proof

“it is clear that from the many where, cases impossible in great defamatory circum- words and the of the character all certain that it is but serious publication, stances of Prosser, Law of in fact.” harm resulted W. has (4th ed. §112, p. 1971).30 Torts damages awards Court fears uncontrolled only denigrates good sense but juries, jurors the role of trial most fails to consider —it appellate jury courts in excessive verdicts where limiting the amount relationship no reasonable exists between injury awarded and the Available informa- sustained.31 damages plaintiff is warrant defamation unless action damages. By imposing otherwise a more entitled to least nominal damage requiring proof difficult actual standard of real, reputation, recovery suffering, though pain to becomes possibility. a much remote more resulting injury reputation “The is difficult to harm from an may involve in the demonstrate both because it subtle differences recipients plaintiff conduct toward and because the recipients, only necessary witnesses able to establish the causal connection, may testify publication be reluctant to that the affected relationships plaintiff. presumptions their with Thus some necessary plaintiff adequately compensated.” are if the to be is Note, Developments Defamation, in the 69 Harv. L. Rev. Law— 891-892 questions damages, judge important “On plays role. is, course, It him jury to determine and instruct the as to may what arriving matters be taken into consideration them ably courts have to confirm American tion tends responsibility.32 discharged this appears damages respect general The new rule with slanders, all whether apply to libels plaintiff when the not, gather, on their face or except,-1 Al- proves disregard. intentional or' reckless falsehood though the impact publication the victim same, in such circumstances the injury reputation may apparently presumed in accordance with the traditional rule. aWhy defamatory statement is more *60 apt injury to cause if the lie is intentional than when only it is I fail I negligent, to understand. suggest that juries judges and by who must live these rules find will equally them incomprehensible.

B With a pen, flourish the Court discards also prevailing rule in libel and slander punitive actions that damages may be on the grounds awarded classic “‘[ajctual malice, is, common-law malice’ sense ill will or fraud or reckless indifference to con- questions at a clearly verdict since such are matters of substantive judge law. may But the frequently judg- also and a does exercise ment to damages plaintiff as may amount of His recover. primarily function here is keep jury to within bounds reason sense, guard and against common excessive verdicts dictated passion prejudice and see that the amount of the verdict has some plaintiff's reasonable relation to the evidence to his loss probability or the Thus, judge may grant loss. the trial a new appellate trial or the may court reverse and remand the case for a new trial because of damages or, excessive frequently as is more case, a may ordered, remittitur the effect of which is that plaintiff accept specified must damages reduction of his or submit to a new trial on the issue of damages.” as well as Harper 1 F. James, & F. The 5.29, p. Law (1956) of Torts 467 § (footnote omitted). Pedrick, supra, 26, See n. at 587 n. 23. 118, Damages § Law of McCormick, C. sequences.” supra, p. 772; § also W. see p. (1935); Prosser, (1969) ; 163,p. Torts Related Libel and Hanson, 1 A. ¶ 69 Harv. Developments Defamation, Note, Law— §48a(4)(d) Code (1956); Cal. Civ. L. Rev. requires defamation In the Court stead, its or reckless dis- falsehood show intentional plaintiffs to falsity publication. for the truth regard verdicts complains about substantial again Court puni- press self-censorship, saying that possibility of merely “private levied civil are fines damages tive conduct and to deter its juries punish reprehensible Ante, I at 350. But see no constitu- future occurrence.” dis- publishing difference between with reckless tional punitive will be regard truth, damages for the where negligent publication they where will not permitted, be allowed. It is difficult to understand what is constitu- tionally punitive with wrong assessing damages to deter publisher from from of care departing those standards ordinarily particu- followed the publishing industry, larly if common-law malice also shown.

I note questionable premise also the that “juries *61 punitive damages assess in wholly unpredictable amounts bearing necessary no relation to actual harm caused.” Ibid. represents This an inaccurate view of estab lished practice, “another of those situations in which judges, largely unfamiliar with relatively rare actions for defamation, rely on words without really going be hind them . .”33 . . a jury While award in type of civil case may certainly be unpredictable, trial and ap pellate courts have been increasingly vigilant in ensuring the jury’s result is “based upon a rational consid eration of the evidence and the proper application of the

33Murnaghan, supra, 3,n. at 29. 123 F. Reynolds Pegler, Supp. 36, law.” denied, (CA2), 223 F. 2d 429 cert. (SDNY aff’d, 1954), Moreover, supra, nn. 31-32. S. 846 See U. a reason punitive damages courts bear require some compensatory damages award.34 Still able relation or condition punitive damages others bar common-law print a their award on a refusal to retraction.35 is cer- “The danger verdicts, ... immoderate tainly a one, applied by real and the criterion to be judge reducing setting the amount vague concededly subjective one. Never- may theless the verdict submitted be twice the complaining defendant to the common sense of trained judicial minds, once on motion for new trial and again and it must a rare appeal, be instance unjustifiable when an escapes award cor- supra, rection.” p. § C. 278. McCormick, points absolutely empirical Court no evidence premise. substantiate its I my For part, would re- quire something more substantial than an undifferenti- fear unduly ated punitive damages awards burdensome before retooling the established common-law rule and depriving the States of the opportunity experiment with different against methods for guarding abuses.

Even assuming the possibility that some verdicts will I “excessive,” cannot subscribe to the Court’s remedy. On its face is a example classic judicial overkill. Apparently abandoning the salutary New York Times “ policy of case-by-case 'independent examination of the whole record’ ... so as to assure ourselves judgment does not constitute a forbidden intrusion on 34Note, Developments in the Defamation, Rev., 69 Harv. L. Law— supra, 938 and n. 443. *62 35 Id., g., 939, e. Cal. See, 941-942. (2) Civ. Code 48a § 398 36 substitutes the Court expression,”

the field free ab- damages recovery punitive barring rule inflexible Amend- malice. The First sent of constitutional proof people’s dedica- statement of a free majestic is a ment on wide-open” debate “uninhibited, robust, tion to we grave we do disservice when public issues,37but 200 needlessly spend years, its force.38 For almost First have punitive damages and the Amendment has no peacefully coexisted. There been demonstration damages libel relate they punitive that state laws as majority’s extreme I response. necessitate fear that who read those the Court’s decision will find its words inaudible, “only Court speaks a voice [with] power, Ohio, of reason.” v. Mapp 367 U. S. (1961) 686 (Harlan, J., dissenting).

y

In disagreeing with the Court on the First Amendment’s reach in the area state protecting libel laws nonpublic persons, I repudiate do not principle the First- Amendment assumption “rests the widest possible dissemination of information from diverse antagonistic sources is essential to the welfare of the public, press free is a condition of a society.” free Associated v. States, Press United U. S. (1945); see Miami also Herald Publishing Co. Tor- nillo, ante, at J., I concurring). continue to (White, subscribe to the New York Times decision and those de- cisions protection its extending to defamatory falsehoods about persons. My quarrel with the Court stems S., 376 U. at 285. 37 Id., at 270. jury Judicial review of libel awards for excessiveness should be influenced First Amendment considerations, but it makes little sense to discard an otherwise useful and time-tested rule because it might misapplied in a few cases.

399 syllo from “to sense to a willingness good its sacrifice gism” 39—to find in the New York Times doctrine an elasticity. expansion this is the infinite Unfortunately, potential latest destructive manifestation good idea carried out to its extreme. logical

Recovery defamatory under common-law standards for private falsehoods about a no enjoys who individual, “general notoriety community,” fame or who is not “pervasive[ly] society,” the affairs involve[d] who not given] does “thrust himself into the vortex of [a 40 public attempt issue ... in an its outcome,” to influence A simply is not forbidden the First Amendment. dis- tinguished private study group put way: this like

“Accountability, subjection law, is not necessarily liberty.” from a net subtraction “The First guarantee Amendment was intended to free ex- not pression, privileged industry.” to create a Com- mission on A Respon- Freedom of the Free and Press, 130, sible Press (1947). 81 I fail to see how quality public quantity debate will promoted by further emasculation of state libel laws for the benefit of If any- the news media.41

39 Holmes, O. (1881). The Common Law 36 40 Ante, 351, 352. Pedrick, supra, Cf. n. at 601-602: great many society "A operate forces our to determine the extent express to which men are free in fact their ideas. Whether privilege good there is a faith misstatements on public liability matters of concern or whether there is strict may greatly such statements affect the course of discus- sion. How different has life been in those states which heretofore majority imposing followed the rule strict for misstatements defaming figures minority of fact from life in the states good privilege sway?” where the held faith Emerson, System Expression T. See also of Freedom of (1970) (footnote omitted): the whole the role libel law in “[0]n im- radical newa may provoke trend thing, Barron, Cf. process. communications in the balance Right, Amendment New First Press —A Access to all not at It Rev. Harv. L. defamatory re- unrestrained virtually inconceivable from discourage them will citizens marks about *64 prob- social themselves with concerning out and speaking head. Amendment on its turn First This would lems. Protection for Amendment Scope of First Note, The L. 649 Error, 642, 75 Yale J. Defamatory Good-Faith at 418. David Mary Rev., 11 & L. (1966); Merin, Wm. II on the midst of World War writing Riesman, oppo-' attacks their effective use fascists' that the law of with libel, commented: “Thus it is nents, character, its and domestic background its ecclesiastic nineteenth-century and crusading heart-balm suits aura of important for modern editors, suddenly becomes demo- Democracy Fair cratic and Defamation: survival.” 1085, Fair L. Rev. 1088 I, Game and Comment Col. (1942). ultimately

This case importance comes down to the society’s “pervasive the Court attaches to in- strong and preventing redressing terest upon reputa- attacks Baer, tion.” Rosenblatt v. at From U. 86. S., I all that seen, have the Court has miscalculated and denigrates that interest at a time when escalating assaults on individuality personal dignity counsel otherwise.42 system expression of freedom relatively been has minor and essentially erratic.” 42“The compelled man who every is to live minute of his life among every need, others and whose thought, desire, fancy or gratification subject public scrutiny, is deprived has been of his individuality dignity. and human merges Such an individual with opinions, being the mass. public, His tend different; never to be aspirations, being known, his always tend conventionally to be accepted ones; feelings, being his openly exhibited, tend to their lose very

At and the highly debatable, issue is least, heavy justify burden proof Court has not carried its tampering with state libel laws.43 feelings quality unique personal warmth to become every being, fungible; although sentient, man. is Such a he is Privacy Bloustein, Aspect not an Human individual.” an Dignity: 962, Prosser, An Answer to Dean 39 N. Y. U. L. Rev. remedy With evisceration of the libel common-law private citizen, legal the Court removes from his arsenal the most weapon reputation by personal effective to combat assault on press establishment. The David and Goliath nature of this relation ship by holding today all is the more accentuated the Court’s Publishing Tornillo, Miami Herald ante, p. Co. v. I which have joined, newspaper’s pre- individual criticized editorial newspaper cluded requiring the First Amendment from print reply his to that attack. case involves an an- While that finding office, nounced candidate for a First- Court’s government Amendment barrier to “intrusion into the function of edi- tors,” ante, does not rest on between distinction *65 fact, citizens or officials. In the First the Court observes that clearly protects governmental Amendment from restraint “the exer- judgment,” cise e., of editorial and i. control choice of material “[t]he go newspaper, to into a and decisions made as to on the limitations size and paper, 'public content of the and treatment of issues and (Emphasis fair or unfair . .” Ibid. . . officials—whether added.) must, therefore, hapless ordinary

We assume citizen (a) may press enjoin publication libeled not a in advance of story him, regardless may be, about how v. Min of libelous Near Olson, may (b) compel nesota ex rel. (1931); U. S. not newspaper print reply; (e) may newspaper his not force the print retraction, judicially compelled retraction, a because a a like “remedy right such access,” “governmental enforceable of entails content, brings coercion” as to which “at once a about confrontation express with the provisions judi of the First Amendment and the gloss cial years.” on that developed Amendment over the Miami Publishing Herald Tornillo, ante, Co. 254; case, v. but this at cf. ante, J., at 368 3 (Brennan, n. dissenting). My suggests Brother Brennan may constitutionally also that there possible room for “the statutes, requiring proof enactment not life “is a concomitant exposure some risk While Hill, Time, U. S. Inc. v. community,” civilized in a bargain citizen does (1967), 374, 388 vin- society powerless is defamatory falsehoods. Nor reputation. unfair to his injury dicate Amend- the First fallacy “It to assume is ... state area of in the only guidepost ment is the defamation laws. It not. . . . is own of his protection

“The of a man to the right wrongful reputation from unjustified invasion concept hurt no more than our basic reflects being essential dignity every and worth of human —(cid:127) concept any system or- root of decent dered liberty. protection private personal- ity, like protection life is itself, primarily left to the individual States under Ninth and Tenth Amendments. But does right not mean that the is entitled recognition by less this Court as a basic of our system.” constitutional Rosenblatt Baer, supra, at 92 (Stewart, concurring). J., The case against razing state libel compelling laws when considered light of the increasingly prominent role of mass society media our power the awesome placed it has in the hands of a select few.44 our Surely, political “system cannot flourish if regimentation takes hold.” Public Pollak, Utilities Comm’n v. S.U. 451, 469 (1952) (Douglas, dissenting). Nor can it J., if our people survive deprived are of an effective method fault, provide which publication . . . for *66 of a court’s determination falsity if plaintiff is able to demonstrate that false statements published have been concerning his Court, activities.” Ibid. The however, does not even consider this less drastic alternative to its new fault” “some libel standards. 28, supra. See n. vindicating legitimate good their interest in their

names.45 decency human and are anti- dignity

Freedom and not they without Indeed, thetical. cannot survive each side-by-side precarious other. exist balance, Both always threatening one to overwhelm other. Our ability our experience as a Nation testifies to the to dynamic democratic harness this tension. institutions upon by One the mechanisms seized the common law to accommodate forces was the libel these civil action jury tried before citizens. average And has essen- tially necessarily fulfilled its role. Not because it is only or answer, best but because juristic philosophy “the of the common law is at philosophy bottom the of pragmatism. truth Its relative, not absolute. The rule that functions well produces a title deed recognition.” to B. Car- dozo, Writings (Hall Selected 1947). ed. In our federal there must system, allowing room be to the States take diverse approaches these vexing We questions. should “continue to forbear from fet- tering the States with adamant may rule which embarrass them in coping with their own peculiar prob- Ohio, . Mapp . . .” lems 367 U. atS., 681 (Harlan, J., see also dissenting); From Fic- Murnaghan, Figment tion to Philosophy Requirement of Proof of Dam- —The ages in Libel 22 Cath. U. L. (1972). Rev. Actions, democracy, certainly democracy, “No . . . the American indefinitely will tolerate power irresponsible concentrations of enough strong aspirations to thwart people. Eventu ally governmental power will be up private power, used break governmental power regulate will used private power— private power great if irresponsible.” is at once Commission Press, A Responsible on Freedom Free Press 80 *67 Younger Harris, Cf. U. S. 44-45 Whether or course followed the majority is I indicated wise, my is, have doubts that our constitutional compels scheme proper respect for the role of the duty States their acquitting obey Constitution. Finding no they evidence that have shirked this particularly responsibility, when the law of defamation in'transition, is even I now would await some demonstration of the diminution of freedom of expression before acting.

For the I foregoing reasons, would reverse judg- ment of the Appeals Court of and reinstate jury's verdict.