BLACKMUN, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

418 U.S. 323

Gertz v. Robert Welch, Inc.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

MR. JUSTICE BLACKMUN, concurring.

I joined MR. JUSTICE BRENNAN's opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29"]403 U.S. 29 (1971). I did so because I concluded that, given 403 U.S. 29 (1971). I did so because I concluded that, given New York Times Co. v. Sullivan, 376 U.S. 254"]376 U.S. 254 (1964), and its progeny (noted by the Court, ante at 334-336, n. 6), as well as Curtis Publishing Co. v. Butts and 376 U.S. 254 (1964), and its progeny (noted by the Court, ante at 334-336, n. 6), as well as Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130 (1967), the step taken in Rosenbloom, extending the New York Times doctrine to an event of public or general interest, was logical and inevitable. 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.

The Court today refuses to apply New York Times to the private individual, as contrasted with the public official and the public figure. It thus withdraws to the factual limits of the pre-Rosenbloom cases. It thereby fixes the outer boundary of the New York Times doctrine, and says that, beyond that boundary, a State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault. As my joinder in Rosenbloom's plurality opinion would intimate, I sense some illogic in this.

The Court, however, seeks today to strike a balance between competing values where necessarily uncertain assumptions about human behavior color the result. Although the Court's opinion in the present case departs from the rationale of the Rosenbloom plurality, in that the Court now conditions a libel action by a private person upon a showing of negligence, as contrasted with a showing of willful or reckless disregard, I am willing to [p354] join, and do join, the Court's opinion and its judgment for two reasons:

1. By removing the specters of presumed and punitive damages in the absence of New York Times malice, the Court eliminates significant and powerful motives for self-censorship that otherwise are present in the traditional libel action. By so doing, the Court leaves what should prove to be sufficient and adequate breathing space for a vigorous press. What the Court has done, I believe, will have little, if any, practical effect on the functioning of responsible journalism.

2. The Court was sadly fractionated in Rosenbloom. A result of that kind inevitably leads to uncertainty. 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. If my vote were not needed to create a majority, I would adhere to my prior view. A definitive ruling, however, is paramount. See Curtis Publishing Co. v. Butts, 388 U.S. at 170 (Black, J., concurring); Time, Inc. v. Hill, 385 U.S. 374, 398 (1967) (Black, J., concurring); United States v. Vuitch, 402 U.S. 62, 97 (1971) (separate statement).

For these reasons, I join the opinion and the judgment of the Court.