|Gertz v. Robert Welch, Inc.
471 F.2d 801, reversed and remanded.
[ Powell ]
[ Blackmun ]
[ Burger ]
[ Douglas ]
[ Brennan ]
[ White ]
Gertz v. Robert Welch, Inc.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
MR. JUSTICE WHITE, dissenting.
For some 200 years -- from the very founding of the Nation -- the law of defamation and right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of [p370] state courts and legislatures. Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment, because, until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment, subject only to limited exceptions carved out since 1964.
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. That result is accomplished by requiring the plaintiff in each and every defamation action to prove not only the defendant's culpability beyond his act of publishing defamatory material, but also actual damage to reputation resulting from the publication. Moreover, punitive damages may not be recovered by showing malice in the traditional sense of ill will; knowing falsehood or reckless disregard of the truth will now be required.
I assume these sweeping changes will be popular with the press, but this is not the road to salvation for a court of law. As I see it, there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves. I do not suggest that the decision is illegitimate or beyond the bounds of judicial review, but it is an ill-considered exercise of the power entrusted to this Court, particularly when the [p371] Court has not had the benefit of briefs and argument addressed to most of the major issues which the Court now decides. I respectfully dissent.
Lest there be any mistake about it, the changes wrought by the Court's decision cut very deeply. In 1938, the Restatement of Torts reflected the historic rule that publication in written form of defamatory material -- material tending
so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him [n1]
-- subjected the publisher to liability although no special harm to reputation was actually proved. [n2] Restatement [p372] of Torts § 569 (1938). [n3] Truth was a defense, and some libels were privileged; but, given a false circulation, general damage to reputation was presumed, and damages could be awarded by the jury, along with any special damages such as pecuniary loss and emotional distress. At the very least, the rule allowed the recovery of nominal damages for any defamatory publication actionable per se, and thus performed
a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character, since it often permit a defamed person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom.
Id. § 569, comment b, p. 166.
If the defamation was not libel, but slander, it was actionable per se only if it imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman. Id. § 570. 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. Id. § 575 and comment b, pp. 185-187.
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.
Id., § 621. At the heart of the libel and slander per se [p373] damage scheme lay the award of general damages for loss of reputation. They were granted without special proof because the judgment of history was that the content of the publication itself was so likely to cause injury and because,
in many cases, the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.
Id. § 621, comment a, p. 314. [n4] Proof of actual injury to reputation was itself insufficient proof of that special damage necessary to support liability for slander not actionable per se. But if special damage in the form of material or pecuniary loss were proved, general damages for injury to reputation could be had without further proof. "The plaintiff may recover not only for the special harm so caused, but also for general loss of reputation." Id. § 575, comment a, p. 185. [n5] The right to recover for emotional distress depended upon the defendant's otherwise being liable for either libel or slander. Id. § 623. Punitive damages were recoverable upon proof of special facts amounting to express malice. Id. § 908 and comment b, p. 555. [p374]
Preparations in the mid-1960's for Restatement (Second) of Torts reflected what were deemed to be substantial changes in the law of defamation, primarily a trend toward limiting per se libels to those where the defamatory nature of the publication is apparent on its face, i.e., where the "defamatory innuendo is apparent from the publication itself, without reference to extrinsic facts by way of inducement." Restatement (Second) of Torts § 569, p. 29 (Tent.Draft No. 12, Apr. 27, 1966). Libels of this sort and slanders per se continued to be recognized as actionable without proof of special damage or injury to reputation. [n6] All other defamations would require proof of special injury in the form of material or pecuniary loss. Whether this asserted change reflected the prevailing law was heavily debated, [n7] but it was unquestioned at the time that there are recurring situations in which libel and slander are and should be actionable per se.
In surveying the current state of the law, the proposed Restatement (Second) observed that "[a]ll courts except Virginia agree that any libel which is defamatory upon its face is actionable without proof of damage. . . ." Restatement (Second) of Torts § 569, p. 84 (Tent.Draft No. 11, Apr. 15, 1965). 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. 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 [p375] slander would not be. Id. § 569, p. 86. The law in six jurisdictions was found to be in an unsettled state, but most likely consistent with the Restatement (Second). Id. § 569, p. 88. The law in Virginia was thought to consider libel actionable without proof of special damage only where slander would be, regardless of whether the libel is defamatory on its face. Id. § 569, p. 89. All States, therefore, were at that time thought to recognize important categories of defamation that were actionable per se. [n8] Nor was any question apparently raised at that time that, upon proof of special damage in the form of material or pecuniary loss, general damages to reputation could be recovered without further proof.
Unquestionably, state law continued to recognize some absolute, as well as some conditional, privileges to publish defamatory materials, including the privilege of fair comment in defined situations. But it remained true that, in a wide range of situations, the ordinary citizen could make out a prima facie case without proving more than a defamatory publication, and could recover general damages for injury to his reputation unless defeated by the defense of truth. [n9]
The impact of today's decision on the traditional law of libel is immediately obvious and indisputable. No longer will the plaintiff be able to rest his case with proof of a libel defamatory on its face or proof of a slander historically actionable per se. In addition, he must prove some further degree of culpable conduct on the part of the [p376] publisher, such as intentional or reckless falsehood or negligence. And if he succeeds in this respect, he faces still another obstacle: recovery for loss of reputation will be conditioned upon "competent" proof of actual injury to his standing in the community. This will be true regardless of the nature of the defamation, and even though it is one of those particularly reprehensible statements that have traditionally made slanderous words actionable without proof of fault by the publisher or of the damaging impact of his publication. 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. Plainly, with the additional burden on the plaintiff of proving negligence or other fault, it will be exceedingly difficult, perhaps impossible, for him to vindicate his reputation interest by securing a judgment for nominal damages, the practical effect of such a judgment being a judicial declaration that the publication was indeed false. Under the new rule, the plaintiff can lose not because the statement is true, but because it was not negligently made.
So too, the requirement of proving special injury to reputation before general damages may be awarded will clearly eliminate the prevailing rule, worked out over a very long period of time, that, in the case of defamations not actionable per se, the recovery of general damages for injury to reputation may also be had if some form of material or pecuniary loss is proved. Finally, an inflexible federal standard is imposed for the award of punitive damages. No longer will it be enough to prove ill will and an attempt to injure.
These are radical changes in the law and severe invasions of the prerogatives of the States. They should [p377] at least be shown to be required by the First Amendment or necessitated by our present circumstances. Neither has been demonstrated.
Of course, New York Times Co. v. Sullivan, 376 U.S. 254"]376 U.S. 254 (1964); Rosenblatt v. Baer, 383 U.S. 75 (1966), and Curtis Publishing Co. v. Butts and 376 U.S. 254 (1964); Rosenblatt v. Baer, 383 U.S. 75 (1966), and Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130"]388 U.S. 130 (1967), have themselves worked major changes in defamation law. Public officials and public figures, if they are to recover general damages for injury to reputation, must prove knowing falsehood or reckless disregard for the truth. The States were required to conform to these decisions. Thereafter in 388 U.S. 130 (1967), have themselves worked major changes in defamation law. Public officials and public figures, if they are to recover general damages for injury to reputation, must prove knowing falsehood or reckless disregard for the truth. The States were required to conform to these decisions. Thereafter in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), three Members of the Court urged that the same standard be applied whenever the publication concerned an event of public or general concern. But none of these cases purported to foreclose in all circumstances recovery by the ordinary citizen on traditional standards of liability, and, until today, a majority of the Court had not supported the proposition that, given liability, a court or jury may not award general damages in a reasonable amount without further proof of injury.
In the brief period since Rosenbloom was decided, at least 17 States and several federal courts of appeals have felt obliged to consider the New York Times constitutional privilege for liability as extending to, in the words of the Rosenbloom plurality, "all discussion and communication involving matters of public or general concern." Id. at 44. [n10] Apparently, however, general [p378] damages still remain recoverable once that standard of liability is satisfied. Except where public officials and public figures are concerned, the Court now repudiates [p379] the plurality opinion in Rosenbloom and appears to espouse the liability standard set forth by three other Justices in that case. The States must now struggle to [p380] discern the meaning of such ill-defined concepts as "liability without fault" and to fashion novel rules for the recovery of damages. These matters have not been briefed or argued by the parties, and their workability has not been seriously explored. 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.
The Court does not contend, and it could hardly do so, that those who wrote the First Amendment intended to prohibit the Federal Government, within its sphere of influence in the Territories and the District of Columbia, from providing the private citizen a peaceful remedy for damaging falsehood. 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. As the Court pointed out in Roth v. United States, 354 U.S. 476, 482 (1957), 10 of the 14 States that had ratified the Constitution by 1792 had themselves provided constitutional guarantees for free [p381] expression, and 13 of the 14 nevertheless provided for the prosecution of libels. Prior to the Revolution, the American Colonies had adopted the common law of libel. [n11] Contrary to some popular notions, freedom of the press was sharply curtailed in colonial America. [n12] Seditious libel was punished as a contempt by the colonial legislatures and as a criminal offense in the colonial courts. [n13]
Scant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers. On the contrary,
[i]t is conceded on all sides that the common law rules that subjected the libeler to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our constitutions.
2 T. Cooley, Constitutional Limitations 883 (8th ed.1927). Moreover, consistent with the Blackstone formula, [n14] these [p382] common law actions did not abridge freedom of the press. See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 247-248 (1960); Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 376 (1969); Hallen, Fair Comment, 8 Tex.L.Rev. 41, 56 (1929). Alexander Meiklejohn, who accorded generous reach to the First Amendment, nevertheless acknowledged:
No one can doubt that, in any well governed society, the legislature has both the right and the duty to prohibit certain forms of speech. Libelous assertions may be, and must be, forbidden and punished. So too must slander. . . . All these necessities that speech be limited are recognized and provided for under the Constitution. They were not unknown to the writers of the First Amendment. That amendment, then, we may take it for granted, does not forbid the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech. It is to the solving of that paradox, that apparent self-contradiction, that we are summoned if, as free men, we wish to know what the right of freedom of speech is.
Political Freedom, The Constitutional Powers of the People 21 (1965). See also Leflar, The Free-ness of Free Speech, 15 Vand.L.Rev. 1073, 1080-1081 (1962).
Professor Zechariah Chafee, a noted First Amendment scholar, has persuasively argued that conditions in 1791 "do not arbitrarily fix the division between lawful and unlawful speech for all time." Free Speech in the United States 14 (1954). [n15] At the same time, however, [p383] he notes that, while the Framers may have intended to abolish seditious libels and to prevent any prosecutions by the Federal Government for criticism of the Government, [n16] "the free speech clauses do not wipe out the common law as to obscenity, profanity, and defamation of individuals." [n17]
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. [n18] 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. [n19] [p384] Jefferson endorsed Madison's formula that "Congress shall make no law . . . 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. . . .
F. Mott, Jefferson and the Press 14 (1943). [n20] Doubt has been expressed that the Members of Congress envisioned the First Amendment as reaching even this far. Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, § 379-380 (1969).
This Court, in bygone years, has repeatedly dealt with libel and slander actions from the District of Columbia and from the Territories. Although in these cases First Amendment considerations were not expressly discussed, the opinions of the Court unmistakably revealed that the classic law of libel was firmly in place in those areas where federal law controlled. See, e.g., Washington Post Co. v. Chaloner, 250 U.S. 290 (1919); Baker v. Warner, 231 U.S. 588 (1913); Nalle v. Oyster, 230 U.S. 165 (1913); Dorr v. United States, 195 U.S. 138 (1904); Pollard v. Lyon, 91 U.S. 225 (1876); White v. Nicholls, 3 How. 266 (1845).
The Court's consistent view prior to New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was that defamatory [p385] utterances were wholly unprotected by the First Amendment. In Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 462 (1907), for example, the Court said that, although freedom of speech and press is protected from abridgment by the Constitution, these provisions "do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." This statement was repeated in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 714 (1931), the Court adding:
But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions.
Id. at 715. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942) (footnotes omitted), reflected the same view:
There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. 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. 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.
Beauharnais v. Illinois, 343 U.S. 250, 254-257 (1952) (footnotes omitted), repeated the Chaplinski statement, noting also that nowhere at the time of the adoption of [p386] the Constitution "was there any suggestion that the crime of libel be abolished." And in Roth v. United States, 354 U.S. at 483 (footnote omitted), the Court further examined the meaning of the First Amendment:
In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U.S. 250, 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press. [n21]
The Court could not accept the generality of this historic view in New York Times Co. v. Sullivan, supra. There, the Court held that the First Amendment was intended to forbid actions for seditious libel and that defamation actions by public officials were therefore not subject to the traditional law of libel and slander. If these officials (and, later, public figures occupying semiofficial or influential, although private, positions) were to recover, they were required to prove not only that the publication was false, but also that it was knowingly false or published with reckless disregard for its truth or falsity. This view that the First Amendment was written to forbid [p387] seditious libel reflected one side of the dispute that raged at the turn of the nineteenth century [n22] and also mirrored the views of some later scholars. [n23]
The central meaning of New York Times, and, for me, the First Amendment as it relates to libel laws, is that seditious libel -- criticism of government and public officials -- falls beyond the police power of the State. 376 U.S. at 273-276. [n24] In a democratic society such as ours, the citizen has the privilege of criticizing his government and its officials. But neither New York Times nor its progeny suggest that the First Amendment intended in all circumstances to deprive the private citizen of his historic recourse to redress published falsehoods damaging to reputation or that, contrary to history and precedent, the Amendment should now be so interpreted. Simply put, the First Amendment did not confer a "license to defame the citizen." W. Douglas, The Right of the People 36 (1958).
I do not labor the foregoing matters to contend that the Court is foreclosed from reconsidering prior interpretations of the First Amendment. [n25] But the Court apparently finds a clean slate where, in fact, we have instructive historical experience dating from long before [p388] the first settlers, with their notions of democratic government and human freedom, journeyed to this land. Given this rich background of history and precedent, and because we deal with fundamentals when we construe the First Amendment, we should proceed with care, and be presented with more compelling reasons before we jettison the settled law of the States to an even more radical extent. [n26]
The Court concedes that the dangers of self-censorship are insufficient to override the state interest in protecting the reputation of private individuals who are both more helpless and more deserving of state concern than public persons with more access to the media to defend themselves. It therefore refuses to condition the private plaintiff's recovery on a showing of intentional or reckless falsehood as required by New York Times. But the Court nevertheless extends the reach of the First Amendment to all defamation actions by requiring that the ordinary [p389] citizen, when libeled by a publication defamatory on its face, must prove some degree of culpability on the part of the publisher beyond the circulation to the public of a damaging falsehood. A rule at least as strict would be called for where the defamatory character of the publication is not apparent from its face. Ante at 348. [n27] Furthermore, if this major hurdle to establish liability is surmounted, the Court requires proof of actual injury to reputation before any damages for such injury may be awarded.
The Court proceeds as though it were writing on tabula rasa, and suggests that it must mediate between two unacceptable choices -- on the one hand, the rigors of the New York Times rule, which the Court thinks would give insufficient recognition to the interest of the private plaintiff, and, on the other hand, the prospect of imposing "liability without fault" on the press and others who are charged with defamatory utterances. Totally ignoring history and settled First Amendment law, the Court purports to arrive at an "equitable compromise," rejecting both what it considers faultless liability and New York Times malice, but insisting on some intermediate degree of fault. Of course, the Court necessarily discards the contrary judgment arrived at in the 50 States that the reputation interest of the private citizen is deserving of considerably more protection.
The Court evinces a deep-seated antipathy to "liability without fault." 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 [p390] the publisher is no doubt aware from the nature of the material that it would be inherently damaging to reputation. He publishes notwithstanding, knowing that he will inflict injury. 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. But, as it turns out, what he has circulated to the public is a very damaging falsehood. Is he nevertheless "faultless"? Perhaps it can be said that the mistake about his defense was made in good faith, but the fact remains that it is he who launched the publication knowing that it could ruin a reputation.
In these circumstances, the law has heretofore put the risk of falsehood on the publisher where the victim is a private citizen and no grounds of special privilege are invoked. 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. I doubt that jurisprudential resistance to liability without fault is sufficient ground for employing the First Amendment to revolutionize the law of libel, and, in my view, that body of legal rules poses no realistic threat to the press and its service to the public. The press today is vigorous and robust. To me, it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. I know of no hard facts to support that proposition, and the Court furnishes none.
The communications industry has increasingly become concentrated in a few powerful hands operating very lucrative businesses reaching across the Nation and into almost every home. [n28] Neither the industry as a whole nor [p391] its individual components are easily intimidated, and we are fortunate that they are not. 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.
In any event, if the Court's principal concern is to protect the communications industry from large libel judgments, it would appear that its new requirements with respect to general and punitive damages would be ample protection. Why it also feels compelled to escalate the threshold standard of liability I cannot fathom, [p392] particularly when this will eliminate, in many instances, the plaintiff's possibility of securing a judicial determination that the damaging publication was indeed false, whether or not he is entitled to recover money damages. Under the Court's new rules, the plaintiff must prove not only the defamatory statement, but also some degree of fault accompanying it. The publication may be wholly false, and the wrong to him unjustified, but his case will nevertheless be dismissed for failure to prove negligence or other fault on the part of the publisher. I find it unacceptable to distribute the risk in this manner and force the wholly innocent victim to bear the injury; for, as between the two, the defamer is the only culpable party. It is he who circulated a falsehood that he was not required to publish.
It is difficult for me to understand why the ordinary citizen should himself carry the risk of damage and suffer the injury in order to vindicate First Amendment values by protecting the press and others from liability for circulating false information. T his is particularly true because such statements serve no purpose whatsoever in furthering the public interest or the search for truth, but, on the contrary, may frustrate that search, and, at the same time, inflict great injury on the defenseless individual. The owners of the press and the stockholders of the communications enterprises can much better bear the burden. And if they cannot, the public at large should somehow pay for what is essentially a public benefit derived at private expense.
Not content with escalating the threshold requirements of establishing liability, the Court abolishes the ordinary damages rule, undisturbed by New York Times [p393] and later cases, that, as to libels or slanders defamatory on their face, injury to reputation is presumed, and general damages may be awarded along with whatever special damages may be sought. Apparently because the Court feels that, in some unspecified and unknown number of cases, plaintiffs recover where they have suffered no injury or recover more than they deserve, it dismisses this rule as an "oddity of tort law." The Court thereby refuses in any case to accept the fact of wide dissemination of a per se libel as prima facie proof of injury sufficient to survive a motion to dismiss at the close of plaintiff's case.
I have said before, but it bears repeating, that, even if the plaintiff should recover no monetary damages, he should be able to prevail and have a judgment that the publication is false. But beyond that, courts and legislatures literally for centuries have thought that, in the generality of cases, libeled plaintiffs will be seriously shortchanged if they must prove the extent of the injury to their reputations. Even where libels or slanders are not, on their face, defamatory, and special damage must be shown, when that showing is made, general damages for reputation injury are recoverable without specific proof. [n29] [p394]
The Court is clearly right when at one point it states that "the law of defamation is rooted in our experience that the truth rarely catches up with a lie." Ante at 344 n. 9. But it ignores what that experience teaches, viz., that damage to reputation is recurringly difficult to prove, and that requiring actual proof would repeatedly destroy any chance for adequate compensation. Eminent authority has warned that
it is clear that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact.
W. Prosser, Law of Torts § 112, p. 765 (4th ed.1971). [n30]
The Court fears uncontrolled awards of damages by juries, but that not only denigrates the good sense of most jurors -- it fails to consider the role of trial and appellate courts in limiting excessive jury verdicts where no reasonable relationship exists between the amount awarded and the injury sustained. [n31] Available information [p395] tends to confirm that American courts have ably discharged this responsibility. [n32]
The new rule with respect to general damages appears to apply to all libels or slanders, whether defamatory on their face or not, except, I gather, when the plaintiff proves intentional falsehood or reckless disregard. Although the impact of the publication on the victim is the same, in such circumstances, the injury to reputation may apparently be presumed in accordance with the traditional rule. 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. I suggest that judges and juries who must live by these rules will find them equally incomprehensible.
With a flourish of the pen, the Court also discards the prevailing rule in libel and slander actions that punitive damages may be awarded on the classic grounds of common law malice, that is, "'[a]ctual malice' in the sense of ill will or fraud or reckless indifference to consequences." [p396] C. McCormick, Law of Damages § 118, p. 431 (1935); see also W. Prosser, supra, § 113, p. 772; 1 A. Hanson, Libel and Related Torts ¶ 163, p. 133 (1969); Note, Developments in the Law -- Defamation, 69 Harv.L.Rev. 875, 938 (1956); Cal.Civ.Code § 48a(4)(d) (1954). In its stead, the Court requires defamation plaintiffs to show intentional falsehood or reckless disregard for the truth or falsity of the publication. The Court again complains about substantial verdicts and the possibility of press self-censorship, saying that punitive damages are merely "private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence." Ante at 350. But I see no constitutional difference between publishing with reckless disregard for the truth, where punitive damages will be permitted, and negligent publication, where they will not be allowed. It is difficult to understand what is constitutionally wrong with assessing punitive damages to deter a publisher from departing from those standards of care ordinarily followed in the publishing industry, particularly if common law malice is also shown.
I note also the questionable premise that "juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused." Ibid. This represents an inaccurate view of established practice,
another of those situations in which judges, largely unfamiliar with the relatively rare actions for defamation, rely on words without really going behind them. . . . [n33]
While a jury award in any type of civil case may certainly be unpredictable, trial and appellate courts have been increasingly vigilant in ensuring that the jury's result is "based upon a rational consideration of the evidence and the proper application of the [p397] law." Reynolds v. Pegler, 123 F.Supp. 36, 39 (SDNY 1954), aff'd, 223 F.2d 429 (CA2), cert. denied, 350 U.S. 846 (1955). See supra, nn. 31-32. Moreover, some courts require that punitive damages bear a reasonable relation to the compensatory damages award. [n34] Still others bar common law punitive damages or condition their award on a refusal to print a retraction. [n35]
The danger . . . of immoderate verdicts is certainly a real one, and the criterion to be applied by the judge in setting or reducing the amount is concededly a vague and subjective one. Nevertheless, the verdict may be twice submitted by the complaining defendant to the common sense of trained judicial minds, once on motion for new trial and again on appeal, and it must be a rare instance when an unjustifiable award escapes correction.
C. McCormick, supra, § 77, p. 278.
The Court points to absolutely no empirical evidence to substantiate its premise. For my part, I would require something more substantial than an undifferentiated fear of unduly burdensome punitive damages awards before retooling the established common law rule and depriving the States of the opportunity to experiment with different methods for guarding against abuses.
Even assuming the possibility that some verdicts will be "excessive," I cannot subscribe to the Court's remedy. On its face, it is a classic example of judicial overkill. Apparently abandoning the salutary New York Times policy of case-by-case
the Court substitutes an inflexible rule barring recovery of punitive damages absent proof of constitutional malice. The First Amendment is a majestic statement of a free people's dedication to "uninhibited, robust, and wide-open" debate on public issues, [n37] but we do it a grave disservice when we needlessly spend its force. [n38] For almost 200 years, punitive damages and the First Amendment have peacefully coexisted. There has been no demonstration that state libel laws as they relate to punitive damages necessitate the majority's extreme response. I fear that those who read the Court's decision will find its words inaudible, for the Court speaks "only [with] a voice of power, not of reason." Mapp v. Ohio, 367 U.S. 643, 686 (1961) (Harlan, J., dissenting).
rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.
Associated Press v. United States, 326 U.S. 1, 20 (1945); see also Miami Herald Publishing Co. v. Tornillo, ante at 260 (WHITE, J., concurring). I continue to subscribe to the New York Times decision and those decisions extending its protection to defamatory falsehoods about public persons. My quarrel with the Court stems [p399] from its willingness "to sacrifice good sense to a syllogism" [n39] -- to find in the New York Times doctrine an infinite elasticity. Unfortunately, this expansion is the latest manifestation of the destructive potential of any good idea carried out to its logical extreme.
Recovery under common law standards for defamatory falsehoods about a private individual, who enjoys no "general fame or notoriety in the community," who is not "pervasive[ly] involve[d] in the affairs of society," and who does not "thrust himself into the vortex of [a given] public issue . . . in an attempt to influence its outcome," [n40] is simply not forbidden by the First Amendment. A distinguished private study group put it this way:
Accountability, like subjection to law, is not necessarily a net subtraction from liberty. . . . The First Amendment was intended to guarantee free expression, not to create a privileged industry.
Commission on Freedom of the Press, A Free and Responsible Press 130, 81 (1947).
I fail to see how the quality or quantity of public debate will be promoted by further emasculation of state libel laws for the benefit of the news media. [n41] If anything, [p400] this trend may provoke a new and radical imbalance in the communications process. Cf. Barron, Access to the Pres -- A New First Amendment Right, 80 Harv.L.Rev. 1641, 1657 (1967). It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head. Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L.J. 642, 649 (1966); Merin, 11 Wm. & Mary L.Rev. at 418. 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.
Democracy and Defamation: Fair Game and Fair Comment I, 42 Col.L.Rev. 1085, 1088 (1942).
This case ultimately comes down to the importance the Court attaches to society's "pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U.S. at 86. From all that I have seen, the Court has miscalculated and denigrates that interest at a time when escalating assaults on individuality and personal dignity counsel otherwise. [n42] [p401] At the very least, the issue is highly debatable, and the Court has not carried its heavy burden of proof to justify tampering with state libel laws. [n43] [p402]
While some risk of exposure "is a concomitant of life in a civilized community," Time, Inc. v. Hill, 385 U.S. 374, 388 (1967), the private citizen does not bargain for defamatory falsehoods. Nor is society powerless to vindicate unfair injury to his reputation.
It is a fallacy . . . to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not. . . .
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
Rosenblatt v. Baer, supra, at 92 (STEWART, J., concurring).
The case against razing state libel laws is compelling when considered in light of the increasingly prominent role of mass media in our society and the awesome power it has placed in the hands of a select few. [n44] Surely, our political "system cannot flourish if regimentation takes hold." Public Utilities Comm'n v. Pollak, 343 U.S. 451, 469 (1952) (DOUGLAS, J., dissenting). Nor can it survive if our people are deprived of an effective method [p403] of vindicating . their legitimate interest in their good names. [n45]
Freedom and human dignity and decency are not antithetical. Indeed, they cannot survive without each other. Both exist side-by-side in precarious balance, one always threatening to overwhelm the other. Our experience as a Nation testifies to the ability of our democratic institutions to harness this dynamic tension. One of the mechanisms seized upon by the common law to accommodate these forces was the civil libel action tried before a jury of average citizens. And it has essentially fulfilled its role. Not because it is necessarily the best or only answer, but because
the juristic philosophy of the common law is, at bottom, the philosophy of pragmatism. Its truth is relative, not absolute. The rule that functions well produces a title deed to recognition.
B. Cardozo, Selected Writings 149 (Hall ed.1947).
In our federal system, there must be room for allowing the States to take diverse approaches to these vexing questions. We should
continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems. . . .
Mapp v. Ohio, 367 U.S. at 681 (Harlan, J., dissenting); see also Murnaghan, From Figment to Fiction to Philosophy -- The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 38 (1972). [p404] Cf. Younger v. Harris, 401 U.S. 37, 44-45 (1971). Whether or not the course followed by the majority is wise, and I have indicated my doubts that it is, our constitutional scheme compels a proper respect for the role of the States in acquitting their duty to obey the Constitution. Finding no evidence that they have shirked this responsibility, particularly when the law of defamation is even now in transition, I would await some demonstration of the diminution of freedom of expression before acting.
For the foregoing reasons, I would reverse the judgment of the Court of Appeals and reinstate the jury's verdict.
1. Restatement of Torts § 559 (1938); see also W. Prosser, Law of Torts § 111, p. 739 (4th ed.1971); 1 A. Hanson, Libel and Related Torts 14, pp. 21-22 (1969); 1 F. Harper & F. James, The Law of Torts § 5.1, pp. 349-350 (1956).
2. The observations in Part I of this opinion as to the current state of the law of defamation in the various States are partially based upon the Restatement of Torts, first published in 1938, and Tentative Drafts Nos. 11 and 12 of Restatement of Torts (Second), released in 1965 and 1966, respectively. The recent transmittal of Tentative Draft No. 20, dated April 25, 1974, to the American Law Institute for its consideration has resulted in the elimination of much of the discussion of the prevailing defamation rules and the suggested changes in many of the rules themselves previously found in the earlier Tentative Drafts. This development appears to have been largely influenced by the draftsmen's "sense for where the law of this important subject should be thought to stand." Restatement (Second) of Torts, p. vii (Tent.Draft No. 20, Apr. 25, 1974). 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 (1971). See, e.g., Restatement (Second) of Torts, supra at xiii, §§ 569, 580, 581A, 581B, 621. There is no indication in the latest draft, however, that the conclusions reached in Tentative Drafts Nos. 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. See infra at 374-375.
3. See also W. Prosser, supra, n. 1, § 112, p. 752 and n. 85; Murnaghan, From Figment to Fiction to Philosophy -- The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 11-13 (1972).
4. Proof of the defamation itself established the fact of injury and the existence of some damage to the right of reputation, and the jury was permitted, even without any other evidence, to assess damages that were considered to be the natural or probable consequences of the defamatory words. Restatement of Torts § 621, comment a, p. 314 (1938); see also C. Gatley, Libel and Slander 1004 (6th ed.1967); M. Newell, Slander and Libel § 721, p. 810 (4th ed.1924); see generally C. McCormick, Law of Damages § 116, pp. 422-430 (1935). In this respect, therefore, the damages were presumed because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff's reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain. Ibid.
5. See also Prosser, supra, n. 1, § 112, p. 761; Harper & James, supra, n. 1, § 5.14, p. 388; Note, Developments in the Law -- Defamation, 69 Harv.L.Rev. 875, 939-940 (1956).
6. Also actionable per se were those libels where the imputation, although not apparent from the material itself, would have been slander per se if spoken, rather than written.
7. Restatement (Second) of Torts § 569, pp. 29-45, 47-48 (Tent.Draft No. 12, Apr. 27, 1966); see also Murnaghan, supra, n. 3.
8. Applying settled Illinois law, the District Court in this case held that it is libel per se to label someone a Communist. 306 F.Supp. 310 (ND Ill.1969).
9. This appears to have been the law in Illinois at the time Gertz brought his libel suit. See, e.g., Brewer v. Hearst Publishing Co., 185 F.2d 846 (CA7 1950); Hotz v. Alton Telegraph Printing Co., 324 Ill.App. 1, 57 N.E.2d 137 (1944); Cooper v. Illinois Publishing & Printing Co., 218 Ill.App. 95 (1920).
10. See, e.g., West v. Northern Publishing Co., 487 P.2d 1304, 1305-1306 (Alaska 1971) (article linking owners of taxicab companies to illegal liquor sales to minors); Gallman v. Carnes, 254 Ark. 987, 992, 497 S.W.2d 47, 50 (1973) (matter concerning state law school professor and assistant dean); Belli v. Curtis Publishing Co., 25 Cal.App.3d 384, 102 Cal.Rptr. 122 (1972) (article concerning attorney with national reputation); Moriarty v. Lippe, 162 Conn.371, 378379, 294 A.2d 326, 330-331 (1972) (publication about certain police officers); Firestone v. Time, Inc., 271 So.2d 745, 750-751 (Fla.1972) (divorce of prominent citizen not a matter of legitimate public concern); State v. Snyder, 277 So.2d 660, 666-668 (La.1973) (criminal defamation prosecution of a defeated mayoral candidate for statements made about another candidate); Twohi v. Boston Herald-Traveler Corp., ___ Mass. ___, 291 N.E.2d 398, 400-401 (1973) (article concerning a candidate's votes in the legislature); Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118, 271 N.E.2d 628 (1971) (article about an architect commissioned by a town to build a school); Harnish v. Herald-Mail Co., Inc., 264 Md. 326, 334-336, 286 A.2d 146, 151 (1972) (article concerning 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, 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, 282 N.E.2d 118 (1972) (magazine article concerning a restaurant's food); Kent v. City of Buffalo, 29 N.Y.2d 818, 277 N.E.2d 669 (1971) (television station film of plaintiff as a captured robber); Frink v. McEldowney, 29 N.Y.2d 720, 275 N.E.2d 337 (1971) (article concerning an attorney representing a town); Mead v. Horvitz Publishing Co. (9th Dist. Ohio Ct.App. June 13, 1973) (unpublished), cert. denied, 416 U.S. 985 (1974) (financial condition of participants in the development of a large apartment complex involving numerous local contractors); Washington v. World Publishing Co., 506 P.2d 913 (Okla.1973) (article about contract dispute between a candidate for United States Senate and his party's county chairman); Matus v. Triangle Publications, Inc., 445 Pa. 384, 395-399, 286 A.2d 357, 363-365 (1971) (radio "talk show" host's discussion of gross overcharging for snowplowing a driveway not considered an event of public or general concern); Autobuses Internacionales S. De R.L., Ltd. v. El Continental Publishing Co., 483 S.W.2d 506 (Tex.Ct. Civ.App. 1972) (newspaper article concerning a bus company's raising of fares without notice and in violation of law); Sanders v. Harris, 213 Va. 369, 372-373, 192 S.E.2d 754, 757-758 (1972) (article concerning English professor at a community college); Old Dominion Branch No. 496 v. Austin, 213 Va. 377, 192 S.E.2d 737 (1972), rev'd, ante, p. 264 (plaintiff's failure to join a labor union considered not an issue of public or general concern); Chase v. Daily Record, Inc., 83 Wash.2d 37, 41, 515 P.2d 154, 156 (1973) (article concerning port district commissioner); Miller v. .Argus Publishing Co., 79 Wash.2d 816, 827, 490 P.2d 101, 109 (1971) (article concerning the backer of political candidates); Polzing v. Helmbrecht, 54 Wis.2d 578, 586, 196 N.W.2d 685, 690 (1972) (letter to editor of newspaper concerning a reporter and the financing of pollution control measures).
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. pending, No. 73-5520 (article concerning family members of the victim of a highly publicized bridge disaster not actionable absent proof of actual malice); Porter v. Guam Publications, Inc., 475 F.2d 744, 745 (CA9 1973) (article concerning citizen's arrest for theft of a cash box considered an event of general or public interest); Cervantes v. Time, Inc., 464 F.2d 986, 991 (CA8 1972) (article concerning mayor and alleged organized crime connections conceded to be a matter of public or general concern); Firestone v. Time, Inc., 460 F.2d 712 (CA5 1972) (magazine article concerning prominent citizen's use of detectives and electronic surveillance in connection with a divorce); Davis v. National Broadcasting Co., 447 F.2d 981 (CA5 1971), aff'g 320 F.Supp. 1070 (ED La.1970) (television report about a person caught up in the events surrounding the assassination of President Kennedy considered a matter of public interest). However, at least one Court of Appeals, faced with an appeal from summary judgment in favor of a publisher in a diversity libel suit brought by a Philadelphia retailer, has expressed "discomfort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law. . . ." Gordon v. Random House, Inc., 486 F.2d 1356, 1359 (CA3 1973).
As previously discussed in n. 2, supra, the latest proposed draft of Restatement (Second) of Torts substantially reflects the views of the Rosenbloom plurality. It also anticipates "that the Supreme Court will hold that strict liability for defamation is inconsistent with the free speech provision of the First Amendment . . . ," Restatement (Second) of Torts § 569, p. 59 (Tent.Draft No. 20, Apr. 25, 1974), as well as the demise of pre-Rosenbloom damages rules. See id. § 621, pp. 285-288.
11. Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 373 (1969).
12. A. Sutherland, Constitutionalism in America: Origin and Evolution of Its Fundamental Ideas 118-119 (1965).
13. See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960).
14. The men who wrote and adopted the First Amendment were steeped in the common law tradition of England. They read Blackstone, "a classic tradition of the bar in the United States" and "the oracle of the common law in the minds of the American Framers. . . ." J. Hurst, The Growth of American Law: The Law Makers 257 (1950); Levy, supra, n. 13, at 13; see also Sutherland, supra, n. 12, at 124-125; Schick v. United States, 195 U.S. 65, 69 (1904). From him they learned that the major means of accomplishing free speech and press was to prevent prior restraints, the publisher later being subject to legal action if his publication was injurious. 4 W. Blackstone, Commentaries *150-153.
15. See also Meiklejohn, The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245, 264:
First, the Framers initiated a political revolution whose develop ment is still in process throughout the world. Second, like most revolutionaries, the Framers could not foresee the specific issues which would arise as their "novel idea" exercised its domination over the governing activities of a rapidly developing nation in a rapidly and fundamentally changing world. In that sense, the Framers did not know what they were doing. And in the same sense, it is still true that, after two centuries of experience, we do not know what they were doing, or what we ourselves are now doing.
In a more abstract and more significant sense, however, both they and we have been aware that the adoption of the principle of self-government by "The People" of this nation set loose upon us and upon the world at large an idea which is still transforming men's conceptions of what they are and how they may best be governed.
16. See Beauharnais v. Illinois, 343 U.S. 250, 272 (1952) (Black, J., dissenting). Brant, who interprets the Framers' intention more liberally than Chafee, nevertheless saw the free speech protection as bearing upon criticism of government and other political speech. I. Brant, The Bill of Rights 236 (1965).
17. Z. Chafee, Free Speech in the United States 14 (1954).
18. See 1 Annals of Cong. 729-789 (1789). See also Brant, supra, n. 16, at 224; Levy, supra, n. 13, at 214, 224.
19. Merin, supra, n. 11, at 377. Franklin, for example, observed:
If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please; but if it means the Liberty of affronting, calumniating, and defaming one another, I, for my part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abused myself.
10 B. Franklin, Writings 38 (Smyth ed.1907).
20. Jefferson's noted opposition to public prosecutions for libel of government figures did not extend to depriving them of private libel actions. Mott, supra, at 43. There is even a strong suggestion that he favored state prosecutions. E.g., Hudon, Freedom of Speech and Press in America 47-48 (1963).
21. For further expressions of the general proposition that libels are not protected by the First Amendment, see Konigsberg v. State Bar of California, 366 U.S. 36, 49-50 and n. 10 (1961); Time Film Corp. v. City of Chicago, 365 U.S. 43, 48 (1961); Pennekamp v. Florida, 328 U.S. 331, 348-349 (1946); cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49"]413 U.S. 49, 67 (1973); 413 U.S. 49, 67 (1973); Stanley v. Georgia, 394 U.S. 557, 561 in 5 (1969)
22. See Levy, supra, n. 13, at 247-248.
23. See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
24. Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup.Ct.Rev.191, 208-209.
The language of the First Amendment is to be read not as barren words found in a dictionary, but as symbols of historic experience illumined by the presuppositions of those who employed them. . . . As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument.
Dennis v. United States, 341 U.S. 494, 523 (1951) (Frankfurter, J., concurring).
[T]he law of defamation has been an integral part of the laws of England, the colonies and the states since time immemorial. So many actions have been maintained and judgments recovered under the various laws of libel that the Constitutional validity of libel actions could be denied only by a Court willing to hold all of its predecessors were wrong in their interpretation of the First Amendment, and that two hundred years of precedents should be overruled.
Rutledge, The Law of Defamation: Recent Developments, 32 Alabama Lawyer 409, 410 (1971).
The prevailing common law libel rules in this country have remained in England and the Commonwealth nations. Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 583-584 (1964). After many years of reviewing the English law of defamation, the Porter Committee concluded that, "though the law as to defamation requires some modification, the basic principles upon which it is founded are not amiss." Report of the Committee on the Law of Defamation, Cmd. No. 7536, ¶ 222, p. 48 (1948).
27. If I read the Court correctly, it clearly implies that, for those publications that do not make "substantial danger to reputation apparent," the New York Times actual malice standard will apply. Apparently this would be true even where the imputation concerned conduct or a condition that would be per se slander.
28. A recent study has comprehensively detailed the role and impact of mass communications in this Nation. See Note, Media and the First Amendment in a Free Society, 60 Geo.L.J. 867 (1972). For example, 99% of the American households have a radio, and 77% hear at least one radio newscast daily. In 1970, the yearly average home television viewing time was almost six hours per day. Id. at 883 n. 53.
Sixty years ago, 2,442 newspapers were published daily nationwide, and 689 cities had competing dailies. Today, in only 42 of the cities served by one of the 1,748 American daily papers is there a competing newspaper under separate ownership. Total daily circulation has passed 62 million copies, but over 40 percent of this circulation is controlled by only 25 ownership groups.
Newspaper owners have profited greatly from the consolidation of the journalism industry. Several of them report yearly profits in the tens of millions of dollars, with after-tax profits ranging from seven to 14 percent of gross revenues. Unfortunately, the owners have made their profits at the expense of the public interest in free expression. As the broad base of newspaper ownership narrows, the variation of facts and opinions received by the public from antagonistic sources is increasingly limited. Newspaper publication is indeed a leading American industry. Through its evolution in this direction, the press has come to be dominated by a select group whose prime interest is economic.
The effect of consolidation within the newspaper industry is magnified by the degree of intermediate ownership. Sixty-eight cities have a radio station owned by the only local daily newspaper, and 160 television stations have newspaper affiliations. In 11 cities, diversity of ownership is completely lacking, with the only television station and newspaper under the same control.
Id. at 892-893 (footnotes omitted). See also Congress, FCC Consider Newspaper Control of Local TV, 32 Cong.Q. 659-663 (1974).
29. Having held that the defamation plaintiff is limited to recovering for "actual injury," the Court hastens to add:
Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.
Ante at 350. It should be pointed out that, under the prevailing law, where the defamation is not actionable per se and proof of "special damage" is required, a showing of actual injury to reputation is insufficient; but if pecuniary loss is shown, general reputation damages are recoverable. The Court changes the latter, but not the former, rule. Also under present law, pain and suffering, although shown, do not warrant damages in any defamation action unless the plaintiff is otherwise entitled to at least nominal damages. By imposing a more difficult standard of liability and requiring proof of actual damage to reputation, recovery for pain and suffering, though real, becomes a much more remote possibility.
The harm resulting from an injury to reputation is difficult to demonstrate both because it may involve subtle differences in the conduct of the recipients toward the plaintiff and because the recipients, the only witnesses able to establish the necessary causal connection, may be reluctant to testify that the publication affected their relationships with the plaintiff. Thus, some presumptions are necessary if the plaintiff is to be adequately compensated.
Note, Developments in the Law -- Defamation, 69 Harv.L.Rev. 875, 891-892 (1956).
On questions of damages, the judge plays an important role. It is, of course, for him to determine and instruct the jury as to what matters may be taken into consideration by them in arriving at a verdict, since such questions are clearly matters of substantive law. But the judge also may and frequently does exercise a judgment as to the amount of damages the plaintiff may recover. His function here is primarily to keep the jury within bounds of reason and common sense, to guard against excessive verdicts dictated by passion and prejudice and to see to it that the amount of the verdict has some reasonable relation to the plaintiff's evidence as to his loss or the probability of loss. Thus, the trial judge may grant a new trial, or the appellate court may reverse and remand the case for a new trial, because of excessive damages or, as is more frequently the case, a remittitur may be ordered, the effect of which is that the plaintiff must accept a specified reduction of his damages or submit to a new trial on the issue of liability as well as damages.
1 F. Harper & F. James, The Law of Torts § 5.29, p. 467 (1956) (footnote omitted).
32. See Pedrick, supra, n. 26, at 587 n. 23.
33. Murnaghan, supra, n. 3, at 29.
34. Note, Developments in the Law -- Defamation, 69 Harv.L.Rev., supra, at 875, 938 and n. 443.
35. Id. at 939, 941-942. See, e.g., Cal.Civ.Code § 48a(2) (1954).
36. 376 U.S. at 285.
37. Id. at 270.
38. Judicial review of jury libel awards for excessiveness should be influenced by First Amendment considerations, but it makes little sense to discard an otherwise useful and time-tested rule because it might be misapplied in a few cases.
39. O. Holmes, The Common Law 36 (1881).
40. Ante at 351, 352.
41. Cf. Pedrick, supra, n. 26, at 601-602:
A great many forces in our society operate to determine the extent to which men are free, in fact, to express their ideas. Whether there is a privilege for good faith defamatory misstatements on matters of public concern or whether there is strict liability for such statements may not greatly affect the course of public discussion. 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?
See also T. Emerson, The System of Freedom of Expression 519 (1970) (footnote omitted):
[O]n the whole the role of libel law in the system of freedom of expression has been relatively minor and essentially erratic.
The man who is compelled to live every minute of his life among others, and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual.
Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962, 1003 (1964).
43. 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. 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, ante p. 241, which I have joined, that an individual criticized by a newspaper's editorial is precluded by the First Amendment from requiring that newspaper to print his reply to that attack. While that case involves an announced candidate for public office, the Court's finding of a First Amendment barrier to government "intrusion into the function of editors," ante at 258, does not rest on any distinction between private citizens or public officials. In fact, the Court observes that the First Amendment clearly protects from governmental restraint "the exercise of editorial control and judgment," i.e.,
[t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -- whether fair or unfair. . . .
Ibid. (Emphasis added.)
We must, therefore, assume that the hapless ordinary citizen libeled by the press (a) may not enjoin in advance of publication a story about him, regardless of how libelous it may be, Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); (b) may not compel the newspaper to print his reply; and (c) may not force the newspaper to print a retraction, because a judicially compelled retraction, like a "remedy such as an enforceable right of access," entails "governmental coercion" as to content, which
at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.
Miami Herald Publishing Co. v. Tornillo, ante at 254; but cf. this case, ante at 368 n. 3 (BRENNAN, J., dissenting).
My Brother BRENNAN also suggests that there may constitutionally be room for
the possible enactment of statutes, not requiring proof of fault, which provide . . . for publication of a court's determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities.
Ibid. The Court, however, does not even consider this less drastic alternative to its new "some fault" libel standards.
44. See n. 28, supra.
No democracy, . . . certainly not the American democracy, will indefinitely tolerate concentrations of private power irresponsible and strong enough to thwart the aspirations of the people. Eventually governmental power will be used to break up private power, or governmental power will be used to regulate private power -- if private power is at once great and irresponsible.