|Time, Inc. v. Firestone
[ Rehnquist ]
[ Powell ]
[ Brennan ]
[ White ]
[ Marshall ]
Time, Inc. v. Firestone
CERTIORARI TO THE SUPREME COURT OF FLORIDA
MR. JUSTICE MARSHALL, dissenting.
The Court agrees with the Supreme Court of Florida that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254"]376 U.S. 254 (1964), does not apply to this case. Because I consider the respondent, Mary Alice Firestone, to be a "public figure" within the meaning of our prior decisions, 376 U.S. 254 (1964), does not apply to this case. Because I consider the respondent, Mary Alice Firestone, to be a "public figure" within the meaning of our prior decisions, Gertz v. Robert Welch, Inc., 418 U.S. 323"]418 U.S. 323 (1974); 418 U.S. 323 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), I respectfully dissent.
Mary Alice Firestone was not a person "first brought to public attention by the defamation that is the subject of the lawsuit." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 78, 86 (1971) (MARSHALL, J., dissenting). On the contrary, she was "prominent among the ‘400' of [p485] Palm Beach society," and an "active [member] of the sporting set," 271 So.2d 745, 751 (Fla.1972), whose activities predictably attracted the attention of a sizable portion of the public. Indeed, Mrs. Firestone's appearances in the press were evidently frequent enough to warrant her subscribing to a press-clipping service.
Mrs. Firestone brought suit for separate maintenance, with reason to know of the likely public interest in the proceedings. As the Supreme Court of Florida noted, Mr. and Mrs. Firestone's "marital difficulties were . . . well known," and the lawsuit became "a veritable cause celebre in social circles across the country." Ibid. The 17-month trial and related events attracted national news coverage, and elicited no fewer than 43 articles in the Miami Herald and 45 articles in the Palm Beach Post and Palm Beach Times. Far from shunning the publicity, Mrs. Firestone held several press conferences in the course of the proceedings.
These facts are sufficient to warrant the conclusion that Mary Alice Firestone was a "public figure" for purposes of reports on the judicial proceedings she initiated. In Gertz v. Robert Welch, Inc., supra at 352, we noted that an individual can be a public figure for some purposes and a private figure for others. And we found two distinguishing features between public figures and private figures. First, we recognized that public figures have less need for judicial protection because of their greater ability to resort to self-help:
public figures usually enjoy significantly greater access to the channels of effective communication, and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.
418 U.S. at 344.
As the above recital of the facts makes clear, Mrs. Firestone is hardly in a position to suggest that she lacked access to the media for purposes relating to her lawsuit. [p486] It may well be that she would have had greater difficulty countering alleged falsehoods in the national press than in the Miami and Palm Beach papers that covered the proceedings so thoroughly. But presumably the audience Mrs. Firestone would have been most interested in reaching could have been reached through the local media. In any event, difficulty in reaching all those who may have read the alleged falsehood surely ought not preclude a finding that Mrs. Firestone was a public figure under Gertz. Gertz set no absolute requirement that an individual be able fully to counter falsehoods through self-help in order to be a public figure. We viewed the availability of the self-help remedy as a relative matter in Gertz, and set it forth as a minor consideration in determining whether an individual is a public figure.
The second, "more important," consideration in Gertz was a normative notion that public figures are less deserving of protection than private figures: that, although "it may be possible for someone to become a public figure through no purposeful action of his own," generally those classed as public figures have "thrust themselves to the forefront of particular public controversies," and thereby "invite[d] attention and comment." Id. at 344-345. And even if they have not,
the communications media are entitled to act on the assumption that . . . public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.
Id. at 345.
We must assume that it was by choice that Mrs. Firestone became an active member of the "sporting set" -- a social group with "especial prominence in the affairs of society," ibid., whose lives receive constant media attention. Certainly there is nothing in the record to indicate otherwise, and Mrs. Firestone's subscription to a press clipping service suggests that she was not altogether uninterested [p487] in the publicity she received. Having placed herself in a position in which her activities were of interest to a significant segment of the public, Mrs.Firestone chose to initiate a lawsuit for separate maintenance, and, most significantly, held several press conferences in the course of that lawsuit. If these actions for some reason fail to establish as a certainty that Mrs. Firestone "voluntarily exposed [herself] to increased risk of injury from defamatory falsehood," surely they are sufficient to entitle the press to act on the assumption that she did. Accordingly, Mrs. Firestone would appear to be a public figure under Gertz.
The Court resists this result by concluding that the subject matter of the alleged defamation was not a "public controversy" as that term was used in Gertz. In part, the Court's conclusion rests on what I view as an understatement of the degree to which Mrs. Firestone can be said to have voluntarily acted in a manner that invited public attention. But, more fundamentally, its conclusion rests on a reading of Gertz that differs from mine. The meaning that the Court attributes to the term "public controversy" used in Gertz resurrects the precise difficulties that I thought Gertz was designed to avoid.
It is not enough for the Court that, because of Mrs. Firestone's acquired prominence within a segment of society, her lawsuit had already attracted significant public attention and comment when the Time report was published. According to the Court, the controversy, already of interest to the public, was "not the sort of ‘public controversy' referred to in Gertz." Ante at 454. The only explanation I can discern from the Court's opinion is that the controversy was not of the sort deemed relevant to the "affairs of society," ante at 453, and the public's interest not of the sort deemed "legitimate" or worthy of judicial recognition. [p488]
If there is one thing that is clear from Gertz, it is that we explicitly rejected the position of the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), that the applicability of the New York Times standard depends upon whether the subject matter of a report is a matter of "public or general concern." We explained in Gertz that the test advanced by the Rosenbloom plurality
would occasion the . . . difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public interest" and which do not -- to determine, in the words of MR. JUSTICE MARSHALL, "what information is relevant to self-government." Rosenbloom v. Metromedia, Inc., 403 U.S. at 79. We doubt the wisdom of committing this task to the conscience of judges.
418 U.S. at 346. Having thus rejected the appropriateness of judicial inquiry into "the legitimacy of interest in a particular event or subject," Rosenbloom, supra at 78, 79 (MARSHALL, J., dissenting), Gertz obviously did not intend to sanction any such inquiry by its use of the term "public controversy." Yet that is precisely how I understand the Court's opinion to interpret Gertz. [n1] [p489]
If Gertz is to have any meaning at all, the focus of analysis must be on the actions of the individual, and the degree of public attention that had already developed, or that could have been anticipated, before the report in question. Under this approach, the class of public figures must include an individual like Mrs. Firestone, who acquired a social prominence that could be expected to attract public attention, initiated a lawsuit that predictably attracted more public attention, and held press conferences in the course of and in regard to the lawsuit. [n2] I would hold that, for purposes of this [p490] case, Mrs. Firestone is a public figure who must demonstrate that the report in question was published with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
While the foregoing discussion is sufficient to dispose of the case under my reading of the law, two other aspects of the Court's opinion warrant comment. First, the Court appears to reject the contention that a rational interpretation of an ambiguous document is always entitled to some constitutional protection. The Court reads Time, Inc. v. Pape, 401 U.S. 279 (1971), as providing such protection only under the rubric of the New York Times "actual malice" standard. Ante at 459 n. 4. I disagree. While the precise holding in Pape was that the choice of one of several rational interpretations of an ambiguous document is not enough to create a jury issue of "actual malice," the Court's reasoning suggests that its holding ought not be so confined. In introducing its discussion, the Court noted:
[A] vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said, rather than of what anybody did. Indeed, perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like. The question of the "truth" of [p491] such an indirect newspaper report presents rather complicated problems.
401 U.S. at 285-286 (emphasis in original). And in discussing the need for some protection for the publisher attempting to report the gist of a lengthy government document, the Court observed:
Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of "truth" that would not put the publisher virtually at the mercy of the unguided discretion of a jury.
Id. at 291. Surely the Court's evident concern that publishers be accorded the leeway to offer rational interpretations of ambiguous documents was not restricted to cases in which the New York Times standard is applicable. That concern requires that protection for rational interpretations be accorded under the fault standard contemplated in Gertz. Thus, my Brothers POWELL and STEWART, while joining the opinion of the Court, recognize that the rationality of an interpretation of an ambiguous document must figure as a crucial element in any assessment of fault under Gertz. Ante at 467-469. I agree. The choice of one of several rational interpretations of an ambiguous document, without more, is insufficient to support a finding of fault under Gertz.
Finally, assuming that the Court is correct in its assessment of the law in this case, I find the Court's disposition baffling. The Court quotes that portion of the Florida Supreme Court's opinion which, citing Gertz, states in no uncertain terms that Time's report was a "flagrant example of ‘journalistic negligence.'" 305 So.2d 172, 178 (1974). But the Court is unwilling to read that statement as a "conscious determination" of fault, and, accordingly, the Court remands the case for an assessment of fault. [p492]
Surely the Court cannot be suggesting that the quoted portion of the Supreme Court of Florida's opinion, which contained a citation to Gertz, had no meaning at all. And if it did have meaning, it must have reflected either an intention to find fault or an intention to affirm a finding of fault. It is quite clear that the opinion was not intended to affirm any finding of fault, for, as the Court observes, there was no finding of fault to affirm. The question of fault had not been submitted to the jury, and the District Court of Appeal had explicitly noted the absence of any proof that Time had been negligent. 254 So.2d 386, 390 (1971). The absence of any prior finding of fault only reinforces what the Florida Supreme Court's language itself makes clear -- that the court was not simply affirming a finding of fault, but making such a finding in the first instance.
I therefore agree with my Brother WHITE that the Supreme Court of Florida made a conscious determination of fault. I would add, however, that it is a determination that is wholly unsupportable. The sole basis for that court's determination of fault was that, under Florida law, a wife found guilty of adultery cannot be, as Mrs. Firestone was, awarded alimony. Time, the court reasoned, should have realized that a divorce decree containing an award of alimony could not, consistent with Florida law, have been based on adultery. But that reasoning assumes that judicial decisions can always be squared with the prior state of the law. If we need be reminded that courts occasionally err in their assessment of the law, we need only refer to the subsequent history of the divorce decree involved in this case: when the divorce case reached the Supreme Court of Florida, that court found that the divorce had been granted for lack of "domestication" and pointed out that that was not one of the statutory grounds for [p493] divorce. Firestone v. Firestone, 263 So.2d 223 (1972). Time's responsibility was to report accurately what the trial court did, not what it could or should have done. If the trial court awarded alimony while basing the divorce on a finding of adultery by the wife, Time cannot be faulted for reporting that fact. Unless there is some basis for a finding of fault other than that given by the Supreme Court of Florida, I think it clear that there can be no liability.
1. The Supreme Court of Florida's explanation of why the New York Times standard is inapplicable is equally inconsistent with Gertz. After referring to Mrs. Firestone's prominence in Palm Beach society, the widespread attention her lawsuit received, and her granting of interviews to the news media, the court reasoned as follows:
That the public was curious, titillated or intrigued with the scandal in the Firestone divorce is beyond doubt. But we again emphasize the distinction we make between that genre of public interest and real public or general concern.
* * * *
. . . [W]e cannot find here any aspect of real public concern, and none has been shown to us, which would be furthered or enhanced by "free discussion" and "robust debate" about the divorce of Russell and Mary Alice Firestone.
Nor did [Mrs. Firestone's] quoted interviews with the press raise the untidy affair to the dignity of true public concern. Unlike an actress who might grant interviews relating to the opening of her new play, [Mrs. Firestone] was not seeking public patronage. Publicity, or sympathy, perhaps, but not patronage. Irrespective of her subjective motives, objectively she was merely satiating the appetites of a curious press.
In sum, the Firestone divorce action was unquestionably newsworthy, but reports thereof were not constitutionally protected as being matters of real public or general concern.
271 So.2d at 752.
This language is from an opinion that issued before Gertz was decided, but the reasoning was reaffirmed in the Supreme Court of Florida's final opinion in the case, 305 So.2d 172, 174-175 (1974), which issued after our decision in Gertz.
2. The Court places heavy emphasis on the degree to which Mrs. Firestone attempted to "influence the resolution of" a particular controversy. In response to the observation that Mrs. Firestone held press conferences, for example, the Court notes that those conferences were not intended to influence the outcome of the trial or any other controversy. Ante at 454-455, n. 3. Gertz did, of course, refer to the fact that persons often become public figures by attempting to influence the resolution of public questions. 418 U.S. at 345. But the reference must be viewed as but an example of how one becomes a public figure. Surely Gertz did not intend to establish a requirement that an individual attempt to influence the resolution of a particular controversy before he can be termed a public figure. If that were the rule, Athletic Director Butts in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), would not be a public figure. We held that Butts was a public figure, and, in Gertz, we specifically noted that that decision was "correct." 418 U.S. at 33.