| Gertz v. Robert Welch, Inc.
(No. 72-617)
471 F.2d 801, reversed and remanded. |
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| Syllabus
| Opinion
[ Powell ] | Concurrence
[ Blackmun ] | Dissent
[ Burger ] | Dissent
[ Douglas ] | Dissent
[ Brennan ] | Dissent
[ White ] |
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Gertz v. Robert Welch, Inc.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
MR. JUSTICE DOUGLAS, 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 freedoms of speech and press protected by the First Amendment." It is indeed a struggle, once described by Mr. Justice Black as "the same [p356] quagmire" in which the Court "is now helplessly struggling in the field of obscenity." Curtis Publishing Co. v. Butts, 388 U.S. 130, 171 (concurring opinion). I would suggest that the struggle is a quite hopeless one, for, in light of the command of the First Amendment, no "accommodation" of its freedoms can be "proper" except those made by the Framers themselves.
Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated with reasonable searches and seizures and warrants issued by magistrates, the rights of free speech and of a free press were protected by the Framers in verbiage whose proscription seems clear. I have stated before my view that the First Amendment would bar Congress from passing any libel law. [n1] This was the view held by Thomas Jefferson, [n2] and it is one Congress has never challenged through enactment of a civil libel statute. The sole congressional attempt at this variety of First Amendment muzzle was in the Sedition Act of 1798 -- criminal libel act never tested in this Court and one which expired, by its terms, three years after enactment. As President, Thomas Jefferson pardoned those who were convicted under the Act, and fines levied in its prosecution were repaid by Act of Congress. [n3] The general [p357] consensus was that the Act constituted a regrettable legislative exercise plainly in violation of the First Amendment. [n4]
With the First Amendment made applicable to the States through the Fourteenth, [n5] I do not see how States have any more ability to "accommodate" freedoms of speech or of the press than does Congress. This is true whether the form of the accommodation is civil or criminal, since "[w]hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel." New York Times Co. v. Sullivan, 376 U.S. 254, 277. Like Congress, States are without power "to use a civil libel law or any other law to impose damages for merely discussing public affairs." Id. at 295 (Black, J., concurring). [n6] [p358]
Continued recognition of the possibility of state libel suits for public discussion of public issues leaves the freedom of speech honored by the Fourteenth Amendment a diluted version of First Amendment protection. This view is only possible if one accepts the position that the First Amendment is applicable to the States only through the Due Process Clause of the Fourteenth, due process freedom of speech being only that freedom which this Court might deem to be "implicit in the concept of ordered liberty." [n7] But the Court frequently has rested [p359] state free speech and free press decisions on the Fourteenth Amendment generally, [n8] rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process, but also of "privileges and immunities" of United States citizenship. 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. In our federal system, we are all subject to two governmental regimes, and freedoms of speech and of the press protected against the infringement of only one are quite illusory. The identity of the oppressor is, I would think, a matter of relative indifference to the oppressed.
There can be no doubt that a State impinges upon free and open discussion when it sanctions the imposition of damages for such discussion through its civil libel laws. Discussion of public affairs is often marked by highly charged emotions, and jurymen, not unlike us all, are subject to those emotions. It is indeed this very type of speech which is the reason for the First Amendment, since speech which arouses little emotion is little in need of protection. The vehicle for publication in this case was the American Opinion, a most controversial periodical which disseminates the views of the John Birch Society, an organization which many deem to be [p360] quite offensive. The subject matter involved "Communist plots," "conspiracies against law enforcement agencies," and the killing of a private citizen by the police. With any such amalgam of controversial elements pressing upon the jury, a jury determination, unpredictable in the most neutral circumstances, becomes for those who venture to discuss heated issues, a virtual roll of the dice separating them from liability for often massive claims of damage.
It is only the hardy publisher who will engage in discussion in the face of such risk, and the Court's preoccupation with proliferating standards in the area of libel increases the risks. It matters little whether the standard be articulated as "malice" or "reckless disregard of the truth" or "negligence," for jury determinations by any of those criteria are virtually unreviewable. This Court, in its continuing delineation of variegated mantles of First Amendment protection, is, like the potential publisher, left with only speculation on how jury findings were influenced by the effect the subject matter of the publication had upon the minds and viscera of the jury. The standard announced today leaves the States free to "define for themselves the appropriate standard of liability for a publisher or broadcaster" in the circumstances of this case. This, of course, leaves the simple negligence standard as an option, with the jury free to impose damages upon a finding that the publisher failed to act as "a reasonable man." With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking.
Since, in my view, the First and Fourteenth Amendments prohibit the imposition of damages upon respondent for this discussion of public affairs, I would affirm the judgment below. [p361]
1. See, e.g., Rosenblatt v. Baer, 383 U.S. 75, 90 (concurring).
2. In 1798, Jefferson stated:
[The First Amendment] thereby guard[s] in the same sentence, and under the same words, the freedom of religion, of speech, and of the press insomuch, that whatever violates either throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. . . .
8 The Works of Thomas Jefferson 464-465 (Ford ed.1904) (emphasis added).
3. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No. 86, 26th Cong., 1st Sess. (1840).
4. Senator Calhoun, in reporting to Congress, assumed the invalidity of the Act to be a matter "which no one now doubts." Report with Senate Bill No. 122, S.Doc. No. 118, 24th Cong., 1st Sess., 3 (1836).
5. See Stromberg v. California, 283 U.S. 359, 368-369.
6. Since this case involves a discussion of public affairs, I need not decide at this point whether the First Amendment prohibits all libel actions. "An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment." New York Times Co. v. Sullivan, 376 U.S. 254, 297 (Black, J., concurring) (emphasis added). But "public affairs" includes a great deal more than merely political affairs. Matters of science, economics, business, art, literature, etc., are all matters of interest to the general public. Indeed, any matter of sufficient general interest to prompt media coverage may be said to be a public affair. Certainly police killings, "Communist conspiracies," and the like qualify.
A more regressive view of free speech has surfaced, but it has thus far gained no judicial acceptance. Solicitor General Bork has stated:
Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.
Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 20 (1971).
According to this view, Congress, upon finding a painting aesthetically displeasing or a novel poorly written or a revolutionary new scientific theory unsound could constitutionally prohibit exhibition of the painting, distribution of the book or discussion of the theory. Congress might also proscribe the advocacy of the violation of any law, apparently without regard to the law's constitutionality. Thus, were Congress to pass a blatantly invalid law such as one prohibiting newspaper editorials critical of the Government, a publisher might be punished for advocating its violation. Similarly, the late Dr. Martin Luther King, Jr., could have been punished for advising blacks to peacefully sit in the front of buses or to ask for service in restaurants segregated by law.
7. See Palko v. Connecticut, 302 U.S. 319, 325. As Mr. Justice Black has noted, by this view, the test becomes
whether the government has an interest in abridging the right involved, and, if so, whether that interest is of sufficient importance, in the opinion of a majority of the Supreme Court, to justify the government's action in doing so. Such a doctrine can be used to justify almost any government suppression of First Amendment freedoms. As I have stated many times before, I cannot subscribe to this doctrine, because I believe that the First Amendment's unequivocal command that there shall be no abridgement of the rights of free speech shows that the men who drafted our Bill of Rights did all the "balancing" that was to be done in this field.
H. Black, A Constitutional Faith 52 (1969).
8. See, e.g., Bridges v. California, 314 U.S. 252, 263 n. 6 (Black, J.); Murdock v. Pennsylvania, 319 U.S. 105, 108 (DOUGLAS, J.); Saia v. New York, 334 U.S. 558, 560 (DOUGLAS, J.); Talley v. California, 362 U.S. 60, 62 (Black, J.); DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 828 (DOUGIAS, J.); Elfbrant v. Russell, 384 U.S. 11, 18 (DOUGLAS, J.); Mills v. Alabama, 384 U.S. 214, 218 (Black, J.); Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 221-222, and n. 4 (Black, J.).