In Patterson v. Colorado, ex rel. abridging the freedom of speech or the press' only after he suggested: The people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty or reputation of others . But now, using that Amendment as the chosen instrument, the Court, in a few printed pages, has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. Ibid. Under the Court's new rules, the plaintiff must prove not only the defamatory statement but also some degree of fault accompanying it. No. Curtis Publishing Co. v. Butts, supra, 388 U.S., at 152, 87 S.Ct., at 1990. The jury awarded $50,000 to petitioner. More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. (Emphasis added.). A majority of the Court evidently thought otherwise, as is particularly evidenced by Mr. Justice White's separate concurring opinion there and by the respective dissenting opinions of Mr. Justice Harlan and of Mr. Justice Marshall joined by Mr. Justice Stewart. With the evisceration of the common-law libel remedy for the private citizen, the Court removes from his legal arsenal the most effective weapon to combat assault on personal reputation by the press establishment. Argued November 14, 1973. Time, Inc. v. Hill, 385 U.S., at 388, 87 S.Ct., at 543. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. The Court, however, seeks today to strike a balance between competing values where necessarily uncertain assumptions about human behavior color the result. Draft No. New York Times Co. v. Sullivan, 376 U.S. 254, 297, 84 S.Ct. 1972). 1975, 18 L.Ed.2d 1094 (1967), the step taken in Rosenbloom, extending the New York Times doctrine to an event of public or general interest, was logical and inevitable. Damages for libel or slander per se included 'harm caused thereby to the reputation of the person defamed or in the absence of proof of such harm, for the harm which normally results from such a defamation.' PETITIONER: Gertz RESPONDENT: Robert Welch Inc. He abjured the suggested distinction between public officials and public figures on the one hand and private individuals on the other. and Lewis F. Powell, Jr., Harry A. Blackmun, William J. Brennan, Jr., William O. Douglas, Thurgood Marshall, Byron R. White, Potter Stewart and William H. Rehnquist, JJ. 1547, 1569—1570 (1972). 384 (1913); Nalle v. Oyster, 230 U.S. 165, 33 S.Ct. New York Times Co. v. Sullivan, 376 U.S., at 279, 84 S.Ct., at 725. The debates in Congress and the States over the Bill of Rights are unclear and inconclusive on any articulated intention of the Framers as to the free press guarantee.18 We know that Benjamin Franklin, John Adams, and William Cushing favored limiting freedom of the press to truthful statements, while others such as James Wilson suggested a restatement of the Blackstone standard.19 Jefferson endorsed Madison's formula that 'Congress shall make no law . I do not labor the foregoing matters to contend that the Court is foreclosed from reconsidering prior interpretations of the First Amendment.25 But the Court apparently finds a clean slate where in fact we have instructive historical experience dating from long before the first settlors, with their notions of democratic government and human freedom, journeyed to this land. Ibid. Background Elmer Gertz was a Chicago attorney who was engaged to represent the family of a youth who had been killed by a Chicago police officer in 1968.6 The wrongful death action arising out of the incident, along with other matters, received a good deal of publicity, including some which portrayed Gertz in a less than favorable light. Respondent admits this but argues that petitioner's appearance at the coroner's inquest rendered him a 'de facto public official.' Unfortunately, this expansion is the latest manifestation of the destructive potential of any good idea carried out to its logical extreme. Although acknowledging that First Amendment values are of no less significance when media reports concern private persons' involvement in matters of public concern, the Court refuses to provide, in such cases, the same level of constitutional protection that has been afforded the media in the context of defamation of public persons. pause_circle_filled. My quarrel with the Court stems from its willingness 'to sacrifice good sense to a syllogism'39—to find in the New York Times doctrine an infinite elasticity. . Parenthetically, my Brother WHITE argues that the Court's view and mine will prevent a plaintiff—unable to demonstrate some degree of fault—from vindicating his reputation by securing a judgment that the publication was false. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. 118, 271 N.E.2d 628 (1971) (article about an architect commissioned by a town to build a school); Harnish v. Herold-Mail Co., Inc., 264 Md. . This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. At the very least, the rule allowed the recovery of nominal damages for any defamatory publication actionable per se and thus performed. P. 351. Even assuming the possibility that some verdicts will be 'excessive,' I cannot subscribe to the Court's remedy. Petitioner's role in the Nuccio affair did not make him a public figure. 746, 750—751, 27 L.Ed.2d 669 (1971). 710, 735, 11 L.Ed.2d 686 (Black, J., concurring) (emphasis added). I joined Mr. Justice Brennan's opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. Ten jurisdictions continued to support the old rule that libel not defamatory on its face and whose innuendo depends on extrinsic facts is actionable without proof of damage although slander would not be. 1031 (1942) (footnotes omitted), reflected the same view: 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. 11 and 12 are not an accurate reflection of the case law in the States in the mid-1960's prior to the developments occasioned by the plurality opinion in Rosenbloom. Libelous assertions may be, and must be, forbidden and punished. 'The effect of consolidation within the newspaper industry is magnified by the degree of intermedia ownership. 1137 (1951) (Frankfurter, J., concurring). Why a defamatory statement is more apt to cause injury if the lie is intentional than when it is only negligent, I fail to understand. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media's continuing interest in the story. And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. 20, Apr. The family of a murder victim hired petitioner to be their attorney in a civil suit against the murderer. With that caveat we have no difficulty in distinguishing among defamation plaintiffs. Nor is society powerless to vindicate unfair injury to his reputation. Whereas Mr. Justice Harlan thought that the States could allow punitive damages in amounts bearing 'a reasonable and purposeful relationship to the actual harm done . 1904) (emphasis added). Audio Transcription for Opinion Announcement - June 25, 1974 in Gertz v. Robert Welch Inc. Warren E. Burger: The disposition in number 72-617, Gertz against Welch will be announced by Mr. Justice Powell. The accommodation that this Court has established between free speech and libel laws in cases involving public officials and public figures—that defamatory falsehood be shown by clear and convincing evidence to have been published with knowledge of falsity or with reckless disregard of truth—is not apt, the Court holds, because the private individual does not have the same degree of access to the media to rebut defamatory comments as does the public person and he has not voluntarily exposed himself to public scrutiny. Post, at 387. Oral Argument - November 14, 1973; Opinion Announcement - June 25, 1974; Opinions. The identity of the oppressor is, I would think, a matter of relative indifference to the oppressed. I reject the argument that my Rosenbloom view improperly commits to judges the task of determining what is and what is not an issue of 'general or public interest. We doubt the wisdom of committing this task to the conscience of judges. The Court rejects the judgment of experience that some publications are so inherently capable of injury, and actual injury so difficult to prove, that the risk of falsehood should be borne by the publisher, not the victim. 754 (1955). Curtis Publishing Co. v. Butts, 388 U.S. 130, 171, 87 S.Ct. It is indeed a struggle, once described by Mr. Justice Black as 'the same quagmire' in which the Court 'is now helplessly struggling in the field of obscenity.' 197, 19 L.Ed.2d 248 (1967), the Court emphasized the distinction between the New York Times test of knowledge of falsity or reckless disregard of the truth and 'actual malice' in the traditional sense of ill-will. Id., at 279 280, 84 S.Ct., at 726. At the time of the adoption of the First Amendment, many of the consequences of libel law already described had developed, particularly the rule that libels and some slanders were so inherently injurious that they were actionable without special proof of damage to reputation. Restatement (Second) of Torts, p. vii (Tent. 190, 194, 86 L.Ed. But this catch-phrase has no talismanic significance and is almost meaningless in this context where the Court appears to be addressing those libels and slanders that are defamatory on their face and where the publisher is no doubt aware from the nature of the material that it would be inherently damaging to reputation. . Id., at 892—893 (footnotes omitted). Rather, it reveals that the trial judge thought it possible for petitioner to make a factual showing sufficient to overcome respondent's claim of constitutional privilege. The Nelson family hired Elmer Gertz to represent them in their civil lawsuit against Nuccio. The very possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to 'steer far wider of the unlawful zone' thereby keeping protected discussion from public cognizance. 1972). These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. The Court of Appeals affirmed. 15, 1965). 1 F. Harper & F. James, The Law of Torts § 5.29, p. 467 (1956) (footnote omitted). Id., at 805. While these arguments are forcefully and eloquently presented, I cannot accept them, for the reasons I stated in Rosenbloom: 'The New York Times standard was applied to libel of a public official or public figure to give effect to the (First) Amendment's function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.' The Court would now shift this risk to the victim, even though he has done nothing to invite the calumny, is wholly innocent of fault, and is helpless to avoid his injury. CERTIORARI TO THE UNITED STATES COURT OF APPEALS . See also Brant, supra, m. 16, at 224; Levy, supra, n. 13, at 214, 224. Recovery of damages by one who held no public office, however, could not 'be viewed as a vindication of governmental policy.' 813, 824, 96 L.Ed. Can a media organization that published falsehoods about a private individual avoid liability for the harm caused by the statements based on the New York Times v. Sullivan standard? I feel that it is of profound importance for the Court to come to rest in the defamation area and to have a clearly defined majority position that eliminates the unsureness engendered by Rosenbloom's diversity. Restatement of Torts § 621, comment a, p. 314 (1938); see also C. Gatley, Libel and Slander 1004 (6th ed. See Curtis Publishing Co. v. Butts, 388 U.S., at 170, 87 S.Ct., at 1999 (Black, J., concurring); Time, Inc. v. Hill, 385 U.S. 374, 398, 87 S.Ct. There he had argued that a public figure who held no governmental office should be allowed to recover damages for defamation 'on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.' And they remain free to use their discretion selectively to punish expressions of unpopular views. Those classed as public figures stand in a similar position. . Note, Vindication of the Reputation of a Public Official, 80 Harv.L.Rev. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. Mr. Justice Marshall therefore reached the conclusion, also reached by Mr. Justice Harlan, that the States should be 'essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need,' so long as the States did not impose liability without fault. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'. No such assumption is justified with respect to a rpivate individual. ..' J. Hurst, The Growth of American Law: The Law Makers 257 (1950); Levy, supra, 7. Further, the facts in this case demonstrate that petitioner was neither a public official nor public figure. . It is evident that, to a large extent, these latest views are colored by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. Id., at 270, 84 S.Ct., at 721 (emphasis added). Restatement of Torts § 559 (1938); see also W. Prosser, Law of Torts § 111, p. 739 (4th ed. Police." The David and Goliath nature of this relationship is all the more accentuated by the Court's holding today in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. David Riesman, writing in the midst of World War II on the fascists' effective use of defamatory attacks on their opponents, commented: 'Thus it is that the law of libel, with its ecclesiastic background and domestic character, its aura of heart-balm suits and crusading nineteenth-century editors, becomes suddenly important for modern democratic survival.' Petitioner sued respondent for libel and won a jury verdict. The following United States Courts of Appeals have adopted the plurality opinion in Rosenbloom: Cantrell v. Forest City Publishing Co., 484 F.2d 150 (CA6 1973), cert. The eight Justices5 who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), [1] was a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals. 1070 (E.D.La.1970) (television report about a person caught up in the events surrounding the assassination of President Kennedy considered a matter of public interest). Twenty-four jurisdictions were said to hold that libel not defamatory on its face is to be treated like slander and thus not actionable without proof of damage where slander would not be. With this knowledge, he must intend to inflict that injury, his excuse being that he is privileged to do so—that he has published the truth. 534, 542, 17 L.Ed.2d 456 (1967). The implication that petitioner had a criminal record was false. (c) So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent. 20, Apr. : 72-617 DECIDED BY: Burger Court (1972-1975) LOWER COURT: United States Court of Appeals for the Seventh Circuit CITATION: 418 US 323 (1974) ARGUED: Nov 14, 1973 DECIDED: Jun 25, 1974 ADVOCATES: Clyde J. Watts - Argued the cause for the respondent Wayne B. Giampietro - Argued the cause for the petitioner A. Sutherland, Constitutionalism in America: Origin and Evolution of Its Fundamental Ideas 118—119 (1965). Id., at 78, 91 S.Ct., at 1836. . Thus, guarantees of free speech and press necessarily reach 'far more than knowledge and debate about the strictly official activities of various levels of government,' Rosenbloom v. Metromedia, Inc., supra, 403 U.S., at 41, 91 S.Ct., at 1818 for '(f)reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. Report of the Committee on the Law of Defamation, Cmd. 642, 649 (1966); Merin, 11 Wm. But this would mean that the seemingly innocuous mistake of confusing petitioner's role in the litigation against Officer Nuccio would destroy the privilege otherwise available for calling petitioner a Communist-fronter. Moreover, the argument that private persons should not be required to prove New York Times knowing-or-reckless falsity because they do not assume the risk of defamation by freely entering the public arena 'bears little relationship either to the values protected by the First Amendment or to the nature of our society.' . Description xiii, 295 pages ; 25 cm. [U.S. Court of Appeals for the Seventh Circuit, No. 2628, 2640, 37 L.Ed.2d 446 (1973); Stanley v. Georgia, 394 U.S. 557, 561 n. 5, 89 S.Ct. Draft No. During the course of the trial, however, it became clear that the trial court had not acceped all of respondent's asserted grounds for applying the New York Times rule to this case. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements then private individuals normally enjoy.9 Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correstpondingly greater. Requiring them to pay for the occasional damage they do to private reputation will play no substantial part in their future performance or their existence. How different has life been in those states which heretofore followed the majority rule imposing strict liability for misstatements of fact defaming public figures from life in the minority states where the good faith privilege held sway? The judgment of the Seventh Circuit Court of Appeals is reversed and remanded. He asserted that the subject matter of the article was the murder trial of Officer Nuccio and that he did not participate in that proceeding. 1975, 18 L.Ed.2d 1094 (1967), where Mr. Justice White joined four other Members of the Court to extend the knowing-or-reckless-falsity standard to media defamation of persons identified as public figures but not connected with the Government. I agree with the conclusion, expressed in Part V of the Court's opinion, that, at the time of publication of respondent's article, petitioner could not properly have been viewed as either a 'public official' or 'public figure'; instead, respondent's article, dealing with an alleged conspiracy to discredit local police forces, concerned petitioner's purported involvement in 'an event of 'public or general interest." I am frank to say I do not know the parameters of a 'negligence' doctrine as applied to the news media. Such an individual merges with the mass. The Court, taking a novel step, would not limit application of First Amendment protection to private libels involving issues of general or public interest, but would forbid the States from imposing liability without fault in any case where the substance of the defamatory statement made substantial danger to reputation apparent. Noté /5. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgment than the freedoms of speech and of the press. It is he who circulated a falsehood that he was not required to publish. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. W. Douglas, The Right of the People 36 (1958). 'In the instant case a jury might infer from the evidence that (respondent's) failure to investigate the truth of the allegations, coupled with its receipt of communications challenging the factual accuracy of this author in the past, amounted to actual malice, that is, 'reckless disregard' of whether the allegations were true or not. 1975, 1995, 18 L.Ed.2d 1094 (1967). Although petitioner was consequently well known in some circles, he had achieved no general fame or notoriety in the community. Under the new rule the plaintiff can lose, not because the statement is true, but because it was not negligently made. To be actionable, all other types of slanderous statements required proof of special damage other than actual loss of reputation or emotional distress, that special damage almost always being in the form of material or pecuniary loss of some kind. Notwithstanding petitioner's remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an architect of the 'frame-up.' The fear of opening a credibility gap, and thereby lessening one's influence, holds some participants in check. He took no part in the criminal prosecution of Officer Nuccio. Wayne B. Giampietro, Chicago, Ill., for petitioner. See Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 326, 334—336, 286 A.2d 146, 151 (1972) (article concerning a substandard rental property owned by a member of a city housing authority); Standke v. B. E. Darby & Sons, Inc., 291 Minn. 468, 476—477, 193 N.W.2d 139, 145 (1971) (newspaper editorial concerning performance of grand jurors); Whitmore v. Kansas City Star Co., 499 S.W.2d 45, 49 (Mo.Ct.App.1973) (article concerning a juvenile officer, the operation of a detention home, and a grand jury investigation); Trails West, Inc. v. Wolff, 32 N.Y.2d 207, 214—218, 344 N.Y.S.2d 863, 867—871, 298 N.E.2d 52, 55 58 (1973) (suit against a Congressman for an investigation into the death of schoolchildren in a bus accident); Twenty-Five East 40th Street Restaurant Corp. v. Forbes, Inc., 30 N.Y.2d 595, 331 N.Y.S.2d 29, 282 N.E.2d 118 (1972) (magazine article concerning a restaurant's food); Kent v. City of Buffalo, 29 N.Y.2d 818, 327 N.Y.S.2d 653, 277 N.E.2d 669 (1971) (television station film of plaintiff as a captured robber); Frink v. McEldowney, 29 N.Y.2d 720, 325 N.Y.S.2d 755, 275 N.E.2d 337 (1971) (article concerning an attorney representing a town); Mead v. Horvitz Publishing Co. (9th Dist. 875, 891—892 (1956). Id., at 86, 91 S.Ct., at 1841. Accordingly, petitioner brought a libel action against respondent. at 805. He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Therefore, he argued, even if the subject matter of the article generally were protected by the New York Times privilege, under the opinion of the Rosenbloom plurality, the defamatory statements about him were not. Such a being, although sentient, is fungible; he is not an individual.' With this decision we return to that effort. & Mary L.Rev. Nevertheless, yielding to the apparently irresistible impulse to announce a new and different interpretation of the First Amendment, the Court discards history and precedent in its rush to refashion defamation law in accordance with the inclinations of a perhaps evanescent majority of the Justices. Allow media organizations to be a matter of sufficient general interest to New., e.g., Washington Post Co. v. Sullivan, 376 U.S., 721. Lead to arbitrary imposition of liability for actual injury is not limited to out-of-pocket loss plaintiff can,... Of due process but also of 'privileges and immunities ' of United States, U.S.. 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