|Time, Inc. v. Firestone
[ Rehnquist ]
[ Powell ]
[ Brennan ]
[ White ]
[ Marshall ]
Time, Inc. v. Firestone
CERTIORARI TO THE SUPREME COURT OF FLORIDA
MR JUSTICE BRENNAN, dissenting.
In my view, the question presented by this case is the degree of protection commanded by the First Amendment's free expression guarantee where it is sought to hold a publisher liable under state defamation laws for erroneously reporting the results of a public judicial proceeding.
In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S. 254 (1964), this Court has held that the laws of libel and defamation, no less than other legal modes of restraint on the freedoms of speech and press, are subject to constitutional scrutiny under the First Amendment. The Court has emphasized that the central meaning of the free expression guarantee is that the body politic of this Nation shall be entitled to the communications necessary for self-governance, and that to place restraints on the exercise of expression is to deny the instrumental means required in order that the citizenry exercise that ultimate sovereignty reposed in its collective judgment by the Constitution. [n1] Accordingly, we have held that laws governing harm incurred by individuals through defamation or invasion of privacy, although directed to the worthy objective of ensuring the "essential dignity and worth of every human being" necessary to a civilized society, Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (STEWART, J., concurring), must be measured and limited by constitutional constraints [p472] assuring the maintenance and wellbeing of the system of free expression. Although "calculated falsehood" is no part of the expression protected by the central meaning of the First Amendment, Garrison v. Louisiana, 379 U.S. 64, 75 (1964), error and misstatement is recognized as inevitable in any scheme of truly free expression and debate. New York Times, supra at 271-272. Therefore, in order to avoid the self-censorship that would necessarily accompany strict or simple fault liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin for error -- protecting some misstatements so that the "freedoms of expression . . . have the ‘breathing space' that they ‘need . . . to survive.'" Ibid.
[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.
St. Amant v. Thompson, 390 U.S. 727, 732 (1968). For this reason, New York Times held that liability for defamation of a public official may not be imposed in the absence of proof of actual malice on the part of the person making the erroneous statement. 376 U.S. at 279-280. [n2] [p473]
Identical considerations led the Court last Term, in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), to hold that the First Amendment commands an absolute privilege to truthfully report the contents of public records reflecting the subject matter of judicial proceedings. Recognizing the possibility of injury to legitimate privacy interests of persons affected by such proceedings, the Court was nevertheless constrained in light of the strong First Amendment values involved to conclude that no liability whatever could be imposed by the State for reports damaging to those concerns. Following the reasoning of New York Times and its progeny, the Court in Cox Broadcasting noted:
[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press, most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government [p474] generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. . . .
* * * *
. . . Public records, by their very nature, are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government, in which the citizenry is the final judge of the proper conduct of public business.
420 U.S. at 491-492, 495.
Crucial to the holding in Cox Broadcasting was the determination that a "reasonable man" standard for imposing liability for invasion of privacy interests is simply inadequate to the task of safeguarding against "timidity and self-censorship" in reporting judicial proceedings. Id. at 496. Clearly, the inadequacy of any such standard is no less in the related area of liability for defamation resulting from inadvertent error in reporting such proceedings.
It is true, of course, that the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323"]418 U.S. 323 (1974), cut back on the scope of application of the New York Times privilege as it had evolved through the plurality opinion in 418 U.S. 323 (1974), cut back on the scope of application of the New York Times privilege as it had evolved through the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). Rosenbloom had held the New York Times privilege applicable to
all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.
403 U.S. at 44. But in light of the Court's perception [p475] of an altered balance between the conflicting values at stake where the person defamed is in some sense a "private individual," Gertz, supra at 347, 349-350, held First Amendment interests adequately protected in such circumstances so long as defamation liability is restricted to a requirement of "fault" and proof of "actual injury" resulting from the claimed defamation. [n3] 418 U.S. [p476] at 349-350. However, the extension of the relaxed standard of Gertz to news reporting of events transpiring in and decisions arising out of public judicial proceedings is unwarranted by the terms of Gertz itself, is contrary to other well established precedents of this Court and, most importantly, savages the cherished values encased in the First Amendment.
There is no indication in Gertz of any intention to overrule the Rosenbloom decision on its facts. Confined to those facts, Rosenbloom holds that, in instances of erroneous reporting of the public actions of public officials, the New York Times actual malice standard must be met before liability for defamation may be imposed in favor of persons affected by those actions. Although Gertz clearly altered the broader rationale of Rosenbloom, until the Court's decision today, it could not have been supposed that Rosenbloom did not remain the law roughly to the extent of my Brother WHITE's concurring statement therein:
[I]n defamation actions, absent actual malice as defined in New York Times Co. v. Sullivan, the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view.
403 U.S. at 62. [n4]
At stake in the present case is the ability of the press to report to the citizenry the events transpiring in the Nation's judicial systems. There is simply no meaningful [p477] or constitutionally adequate way to report such events without reference to those persons and transactions that form the subject matter in controversy. [n5] This Court has long held:
A trial is a public event. What transpires in the court room is public property. . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.
Craig v. Harney, 331 U.S. 367, 374 (1947). [n6] The Court has recognized that, with regard to the judiciary, no less than other areas of government, the press performs an indispensable role by "subjecting the . . . judicial processes to extensive public scrutiny and criticism." Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). And it is critical that the judicial processes be open to such scrutiny and criticism, for, as the Court has noted in the specific context of labor disputes, the more acute public controversies are, "the more likely it is that, in some aspect, they will get into court." Bridges v. California, 314 U.S. 252, 268-269 (1941). [n7] Indeed, slight [p478] reflection is needed to observe the insistent and complex interaction between controversial judicial proceedings and popular impressions thereof and fundamental legal and political changes in the Nation throughout the 200 years of evolution of our political system. With the judiciary, as with all other aspects of government, the First Amendment guarantees to the people of this Nation that they shall retain the necessary means of control over their institutions that might, in the alternative, grow remote, insensitive, and finally acquisitive of those attributes of sovereignty not delegated by the Constitution. [n8] Also no less true than in other areas of government, error in reporting and debate concerning the judicial process is inevitable. Indeed, in view of the complexities of that process and its unfamiliarity to the laymen [p479] who report it, the probability of inadvertent error may be substantially greater. [n9]
There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news. [p480]
Some part of this is due to carelessness. . . . But a great deal of it must be attributed, in candor, to ignorance which frequently is not at all blameworthy. For newspapers are conducted by men who are laymen to the law. With too rare exceptions, their capacity for misunderstanding the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know, is full of perplexities.
In view of these facts, any standard which would require strict accuracy in reporting legal events factually or in commenting upon them in the press would be an impossible one. Unless the courts and judges are to be put above criticism, no such rule [p481] can obtain. There must be some room for misstatement of fact, as well as for misjudgment, if the press and others are to function as critical agencies in our democracy concerning courts as for all other instruments of government.
For precisely such reasons, we have held that the contempt power may not be used to punish the reporting of judicial proceedings merely because a reporter "missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case." Craig v. Harney, 331 U.S. at 375. See also Pennekamp v. Florida, supra. And "[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, 376 U.S. at 277. The First Amendment insulates from defamation liability a margin for error sufficient to ensure the avoidance of crippling press self-censorship in the field of reporting public judicial affairs. To be adequate, that margin must be both of sufficient breadth and predictable in its application. In my view, therefore, the actual malice standard of New York Times must be met in order to justify the imposition of liability in these circumstances.
1. See Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup.Ct.Rev.191; Meiklejohn, The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245. See also Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the Philosopher, 28 Rutgers L.Rev. 41 (1974); Meiklejohn, Public Speech in the Supreme Court Since New York Times v. Sullivan, 26 Syracuse L.Rev. 819 (1975).
2. The protection of the actual malice test extends to erroneous statements that, in any way "might touch on . . . [the] fitness for office" of a public official, Garrison v. Louisiana, 379 U.S. 64, 77 (1964), or a candidate for public office, Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971). The actual malice standard has been applied,
at the very least, to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs,
Rosenblatt v. Baer, 383 U.S. 75, 85 (1966), and further to "public figures" who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C.J., concurring in result).
As an erroneous judgment of liability is, in view of the First Amendment values at stake, of more serious concern than an erroneous judgment in the opposite direction, Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 50 (1971), the Court has held that actual malice must be demonstrated with "convincing clarity." New York Times, 376 U.S. at 285-286. The actual malice standard requires a showing that the erroneous statements were made in knowing or reckless disregard of their falsity, id. at 280, and has been otherwise defined as requiring a showing that the statements were made by a person who, in fact, was entertaining "serious doubts" as to their truth. St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
3. In this case, the $100,000 damage award was premised entirely on the injury of mental pain and anguish. All claims as to injury to reputation were withdrawn prior to trial, and no evidence concerning damage to reputation was presented at trial. (Indeed, it appears that petitioner was affirmatively precluded from offering evidence to refute any possible jury assumption in this regard by a pretrial order granting "Plaintiff's Motion to Limit Testimony," App. 77.) It seems clear that, by allowing this type of recovery, the State has subverted whatever protective influence the "actual injury" stricture may possess. Gertz would, of course, allow for an award of damages for such injury after proof of injury to reputation. 418 U.S. at 349-350. But to allow such damages without proof "by competent evidence" of any other "actual injury" is to do nothing less than return to the old rule of presumed damages supposedly outlawed by Gertz in instances where the New York Times standard is not met. 418 U.S. at 349. See Anderson, Libel and Press Self-Censorship, 53 Tex.L.Rev. 422, 472-473 (1975); Eaton, The American Law of Defamation through Gertz v. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1436-1437 (1975). The result is clearly to invite "gratuitous awards of money damages far in excess of any actual injury," and jury punishment of "unpopular opinion, rather than [compensation to] individuals for injury sustained by the publication of a false fact." Gertz, supra at 349.
Furthermore, the allowance of damages for mental suffering alone will completely abrogate the use of summary judgment procedures in defamation litigation. Cf. Anderson, supra, at 469 n. 218. The use of such summary procedures may be a critical factor enabling publishers to avoid large litigation expenses in marginal and frivolous defamation suits. The specter of such expenses may be as potent a force for self-censorship as any threat of an ultimate damages award. See generally ibid.
4. Cf. Anderson, supra, n. 3, at 450-451, concluding that the Gertz opinion suggests a "category of involuntary public figures" roughly equivalent to "individual[s] involved in or affected by . . . official action" as defined by my Brother WHITE in Rosenbloom, 403 U.S. at 62.
5. Cf. Rosenbloom v. Metromedia, Inc., supra at 61 (WHITE, J., concurring):
Discussion of the conduct of public officials cannot . . . be subjected to artificial limitations designed to protect others involved in an episode with officials from unfavorable publicity. Such limitations would deprive the public of full information about the official action that took place.
6. Craig also refutes any contention that private civil litigation is somehow different in this respect. 331 U.S. at 378.
7. An early and sympathetic observer of our Nation's political system commented:
The judicial organization of the United States is the institution which a stranger has the greatest difficulty in understanding. He hears the authority of a judge invoked in the political occurrences of every day, and he naturally concludes that, in the United States, the judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer at the first glance nothing that is contrary to the usual habits and privileges of those bodies; and the magistrates seem to him to interfere in public affairs only by chance, but by a chance that recurs every day.
* * * *
Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.
1 A. de Tocqueville, Democracy in America 98, 280 (P. Bradley ed.1948).
8. Even those who would narrowly confine the central meaning of the First Amendment to "explicitly political speech" recognize that this must extend to all speech
concerned with governmental behavior, policy or personnel, whether the governmental unit involved is executive, legislative, judicial or administrative.
Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 27-28 (1971).
9. The difficulties encountered by laymen attempting to report in summarized form the results of judicial proceedings are surely illustrated in the instant case. Respondent's husband, in counterclaiming for divorce, had alleged grounds of "extreme cruelty and adultery," a fact reported in the subsequent judicial opinion. That opinion went on to state:
According to certain testimony in behalf of the defendant, extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in plaintiff's behalf, would indicate that defendant was guilty of bounding from one bedpartner to another with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated within the meaning of that term as used by the Supreme Court of Florida in the case of Chesnut v. Chesnut, 33 So.2d 730, where the court, in holding that a divorce, rather than separate maintenance, should be granted, said:
The big trouble was total incapacity on the part of either for domestication. Seventy-five per cent of successful marriage depends on tact to cushion and bypass domestic frictions. It is much better than meeting them head on and bearing the scars they leave. When the bride and the groom are both devoid of a yen for domestication, the marital bark puts out to sea with its jib pointed to the rocks. . . . We think the record reveals a complete allergy to the give and take essential to successful marriage.
* * * *
In the present case, it is abundantly clear from the evidence of marital discord that neither of the parties has shown the least susceptibility to domestication, and that the marriage should be dissolved.
* * * *
The premises considered, it is thereupon
ORDERED AND ADJUDGED as follows:
1. That the equities in this cause are with the defendant; that defendant's counterclaim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved.
The Florida Supreme Court in the instant action found the fault required by Gertz, 418 U.S. at 347, to be present in the record by virtue of the fact that,
[p]ursuant to Florida law in effect at the time of the divorce judgment . . . , a wife found guilty of adultery could not be awarded alimony. Since petitioner had been awarded alimony, she had not been found guilty of adultery, nor had the divorce been granted on the ground of adultery. A careful examination of the final decree prior to publication would have clearly demonstrated that the divorce had been granted on the grounds of extreme cruelty. . . .
305 So.2d 172, 178 (1974).
Surely the threat of press self-censorship in reporting judicial proceedings is obvious if liability is to be imposed on the basis of such "fault." Indeed, the impossibility of assuring against such errors in reporting is manifested by the fact that the same Florida Supreme Court, in reviewing the judgment of divorce some two and one-half years previous to the above-quoted statement, had found the divorce to have been granted by the trial judge on the erroneous grounds of "lack of domestication," rather than for either extreme cruelty or adultery. Firestone v. Firestone, 263 So.2d 223 (1972).
10. Judge Frank's opinion of the phenomenon and its cause appears to have been roughly comparable. J. Frank, Courts On Trial 1-3 (Atheneum ed. 163).