Defamation

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

One of the most foundational cases in First Amendment jurisprudence occurred in 1964 with the Court’s decision in New York Times Co. v. Sullivan.1 The Times had published a paid advertisement by a civil rights organization criticizing the response of a Southern community to demonstrations led by Dr. Martin Luther King and containing several factual errors. The plaintiff, a city commissioner in charge of the police department, claimed that the advertisement had libeled him even though he was not referred to by name or title and even though several of the incidents described had occurred prior to his assumption of office. Unanimously, the Court reversed the lower court’s judgment for the plaintiff. To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be completely foreclosed by the “label” attached to something. The Court said libel could “claim no talismanic immunity from constitutional limitations,” and the standards for proving defamation must “satisfy the First Amendment.” 2 The Court considered the case “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 3 Because the advertisement was “an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.” 4

Prior interpretations had established that the First Amendment contained no exception “for any test of truth.” 5 The Court explained that error is inevitable in any free debate, to place on the speaker the burden of proving truth would introduce self-censorship and stifle the free expression which the First Amendment protects.6 Nor would injury to official reputation afford a warrant for repressing otherwise free speech. Public officials are subject to public scrutiny and “[c]riticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputation.” 7 Ultimately, the Court said the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 8

In the wake of the Times ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Felix Frankfurter had relied in analogy to uphold the group libel law in Beauharnais v. Illinois, discussed in a subsequent essay.9 In neither case did the Court apply the concept of Times to void them altogether. Garrison v. Louisiana10 held that a statute that did not incorporate the Times rule of “actual malice” was invalid, while in Ashton v. Kentucky11 a common-law definition of criminal libel as “any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act, which, when done, is indictable” was too vague to be constitutional.

Subsequent cases elaborated which defamed individuals had to satisfy the Times rule. Explaining the definition of a “public official,” the Court said this includes “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.” 12 But the Court appeared to expand the concept of “public official” to take on overtones of anyone holding public elective or appointive office.13 Moreover, candidates for public office were subject to the Times rule and comment on their character or past conduct, public or private, insofar as it touches upon their fitness for office, is protected.14

Thus, a wide range of reporting about both public officials and candidates was quickly held to be subject to heightened constitutional standards. While the First Amendment protects scrutiny and criticism of the conduct of official duties by public officials,15 the Court has also held that criticism that reflects generally upon an official’s integrity and honesty is protected.16 Candidates for public office, the Court has said, place their whole lives before the public, and it is difficult to see what criticisms could not be related to their fitness.17

Only three years after its Sullivan decision, the Court said the First Amendment also required a heightened standard to prove defamation of a “public figure,” which included those otherwise private individuals who have attained some prominence, either through their own efforts or because it was thrust upon them, with respect to a matter of public interest, or, in Chief Justice Earl Warren’s words, those persons 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.” 18 Later, the Court curtailed the definition of “public figure” by playing down the matter of public interest and emphasizing that one becomes a “public figure” by voluntarily assuming a role in public affairs.19

Second, in a fragmented ruling, the Court applied the Times standard to private citizens who had simply been involved in events of public interest, usually, though not invariably, not through their own choosing.20 But, in Gertz v. Robert Welch, Inc.21 the Court clarified that Sullivan's actual malice standard did not apply to any defamation on a matter of public concern. Instead, persons who are neither public officials nor public figures may recover for the publication of defamatory falsehoods so long as state defamation law establishes a standard higher than strict liability, such as negligence; damages may not be presumed, however, but must be proved, and punitive damages will be recoverable only upon the Times showing of “actual malice.” 22

Subsequent cases have revealed a trend toward narrowing the scope of the “public figure” concept. A socially prominent litigant in a particularly messy divorce controversy was held not to be such a person,23 and a person convicted years before of contempt after failing to appear before a grand jury was similarly not a public figure even as to commentary with respect to his conviction.24 Also the Court deemed a scientist who sought and received federal grants for research, the results of which were published in scientific journals, not to be a public figure for purposes of an allegedly defamatory comment about the value of his research.25 Public figures, the Court reiterated, are those who (1) occupy positions of such persuasive power and influence that they are deemed public figures for all purposes or (2) have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved, and are public figures with respect to comment on those issues.26

The Court has elaborated on the principles governing defamation actions brought by private figures. First, when a private plaintiff sues a media defendant for publication of information that is a matter of public concern—such as the Gertz situation—the burden is on the plaintiff to establish the information is false. Thus, the Court held in Philadelphia Newspapers v. Hepps,27 the common law rule that defamatory statements are presumptively false must give way to the First Amendment interest that true speech on matters of public concern not be inhibited. This means, as the dissenters noted, that a Gertz plaintiff must establish falsity in addition to establishing some degree of fault (for example, negligence).28 On the other hand, the Court held in Dun & Bradstreet v. Greenmoss Builders that the Gertz standard limiting award of presumed and punitive damages applies only in cases involving matters of public concern, and that selling credit reporting information to subscribers is not such a matter of public concern.29 The Court has left unclear whether it matters if the defendant to the defamation suit is from the media rather than a private person. The plurality in Dun & Bradstreet declined to follow the lower court’s rationale that Gertz protections are unavailable to nonmedia defendants, and a majority of Justices agreed on that point.30 In Philadelphia Newspapers, however, the Court expressly reserved the issue of “what standards would apply if the plaintiff sues a nonmedia defendant.” 31

Other issues besides who is covered by the Times privilege are of considerable importance. The Court has distinguished “actual malice” from the common law meaning of malice.32 Under Times, constitutional “actual malice” means the defendant published the defamation with knowledge that it was false or with reckless disregard of whether it was false.33 Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered.34 A defamation plaintiff under the Times or Gertz standard has the burden of proving by “clear and convincing” evidence, not merely by the preponderance of evidence standard generally used in civil cases, that the defendant acted with knowledge of falsity or with reckless disregard.35 Moreover, the Court has held, a Gertz plaintiff has the burden of proving the actual falsity of the defamatory publication.36 A plaintiff suing the press for defamation under the Times or Gertz standards is not required to prove his case or establish “actual malice” absent discovery of the defendant’s editorial processes.37 Through discovery, the plaintiff may inquire into the defendant’s state of mind; his thoughts, opinions, and conclusions with respect to the material he gathered; and how he reviewed and handled it. As with other areas of protection or qualified protection under the First Amendment (as well as some other constitutional provisions), appellate courts, and ultimately the Supreme Court, must independently review the findings below to ascertain that constitutional standards were met.38

While the Court had suggested in dicta that statements of opinion, unlike assertions of fact, might be absolutely protected,39 the Court held in Milkovich v. Lorain Journal Co.40 that there is no constitutional distinction between fact and opinion, hence no “wholesale defamation exemption” for any statement that can be labeled “opinion.” 41 Instead, the issue is whether, regardless of the context in which a statement is uttered, the statement is sufficiently factual to be susceptible of being proved true or false. Thus, if statements of opinion may “reasonably be interpreted as stating actual facts about an individual,” 42 then the truthfulness of the factual assertions may be tested in a defamation action. There are sufficient protections for free public discourse already available in defamation law, the Court concluded, without creating “an artificial dichotomy between ‘opinion’ and fact.” 43

In Masson v. New Yorker Magazine,44 the Court considered whether a publisher’s alterations to quotations attributed to a public figure met the actual malice standard given journalistic conventions allowing publishers to make some alterations to correct grammar and syntax. The Court ruled that “a deliberate alteration of words [in a quotation] does not equate with knowledge of falsity for purposes of [New York Times] unless the alteration results in a material change in the meaning conveyed by the statement.” 45

1: 376 U.S. 254 (1964).
2: 376 U.S. at 269. Justices Hugo Black, William O. Douglas, and Arthur Goldberg, concurring, would have held libel laws per se unconstitutional. Id. at 293, 297.
3: 376 U.S. at 269, 270.
4: 376 U.S. at 271.
5: 376 U.S. at 271.
6: 376 U.S. at 271–72, 278–79. The substantial truth of an utterance is ordinarily a defense to defamation. See Masson v. New Yorker Magazine, 501 U.S. 496, 516 (1991).
7: 376 U.S. at 272–73.
8: 376 U.S. at 279–80. The same standard applies for defamation contained in petitions to the government, the Court having rejected the argument that the petition clause requires absolute immunity. McDonald v. Smith, 472 U.S. 479 (1985).
9: Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952); Amdt1.7.5.8 Application of Defamation Cases to Group Libel, Hate Speech.
10: 379 U.S. 64 (1964).
11: 384 U.S. 195 (1966).
12: Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
13: See Rosenblatt v. Baer, 383 U.S. 75 (1966) (supervisor of a county recreation area employed by and responsible to the county commissioners may be public official within Times rule); Garrison v. Louisiana, 379 U.S. 64 (1964) (elected municipal judges); Henry v. Collins, 380 U.S. 356 (1965) (county attorney and chief of police); St. Amant v. Thompson, 390 U.S. 727 (1968) (deputy sheriff); Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6 (1970) (state legislator who was major real estate developer in area); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police captain). The categorization does not, however, include all government employees. Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979).
14: Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971).
15: Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
16: Garrison v. Louisiana, 379 U.S. 64 (1964), involved charges that judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to “racketeer influences.” The Court rejected the argument that these criticisms were not about how the judges conducted their courts but were personal attacks upon their integrity and honesty. The Court observed: “Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation . . . .The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.” Id. at 76–77.
17: In Monitor Patriot Co. v. Roy, 401 U.S. 265, 274–75 (1971), the Court said: “The principal activity of a candidate in our political system, his ‘office,’ so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of ‘purely private’ concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry ‘Foul’ when an opponent or an industrious reporter attempts to demonstrate the contrary. Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of reputations is the staple of election campaigns and damage to reputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may have full recourse is a question we need not decide in this case.”
18: Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Chief Justice Earl Warren concurring in the result). Curtis involved a college football coach, and Associated Press v. Walker, decided in the same opinion, involved a retired general active in certain political causes. The suits arose from reporting allegations, respectively, that the football coach fixed a football game and the retired general led a violent crowd in opposition to enforcement of a desegregation decree. While the Court was extremely divided, Chief Justice Warren’s rule became the generally accepted rule. Essentially, four Justices opposed applying the Times standard to “public figures,” although they would have imposed a lesser but constitutionally based burden on public figure plaintiffs. Id. at 133 (plurality opinion of Harlan, Clark, Stewart, and Fortas, JJ.). Three Justices applied Times, id. at 162 (Warren, C.J.), and id. at 172 (Brennan and White, JJ.). Two Justices would have applied absolute immunity. Id. at 170 (Black and Douglas, JJ.). See also Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6 (1970).
19: Public figures “[f]or the most part [are] those who . . . have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
20: Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Rosenbloom had been prefigured by Time, Inc. v. Hill, 385 U.S. 374 (1967), a “false light” privacy case considered infra
21: 418 U.S. 323, 346 (1974).
22: Id. at 347, 349.
23: Time, Inc. v. Firestone, 424 U.S. 448 (1976). See also Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979).
24: Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979).
25: Hutchinson v. Proxmire, 443 U.S. 111 (1979).
26: 443 U.S. at 134 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)).
27: 475 U.S. 767 (1986).
28: 475 U.S. at 780 (Stevens, J., dissenting).
29: 472 U.S. 749 (1985). Justice Lewis Powell wrote a plurality opinion joined by Justices William Rehnquist and Sandra Day O’Connor, and Chief Justice Warren Burger and Justice Byron White, both of whom had dissented in Gertz, added brief concurring opinions agreeing that the Gertz standard should not apply to credit reporting. Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, and John Paul Stevens, dissented, arguing that Gertz had not been limited to matters of public concern, and should not be extended to do so.
30: 472 U.S. at 753 (plurality); id. at 773 (Justice White); id. at 781–84 (dissent).
31: 475 U.S. at 779 n.4. Justice Wiliam Brennan added a brief concurring opinion expressing his view that such a distinction is untenable. Id. at 780.
32: See, e.g., Herbert v. Lando, 441 U.S. 153, 199 (1979) (Stewart, J., dissenting).
33: New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); Garrison v. Louisiana, 379 U.S. 64, 78 (1964); Cantrell v. Forest City Publishing Co., 419 U.S. 245, 251–52 (1974).
34: St. Amant v. Thompson, 390 U.S. 727, 730–33 (1968); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967). A finding of “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” is alone insufficient to establish actual malice. Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657 (1989) (nonetheless upholding the lower court’s finding of actual malice based on the “entire record” ).
35: Gertz v. Robert Welch, Inc., 418 U.S. 323, 331–32 (1974); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 83 (1967). See New York Times Co. v. Sullivan, 376 U.S. 254, 285–86 (1964) ( “convincing clarity” ). A corollary is that the issue on motion for summary judgment in a New York Times case is whether the evidence is such that a reasonable jury might find that actual malice has been shown with convincing clarity. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
36: Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) (leaving open the issue of what “quantity” or standard of proof must be met).
37: Herbert v. Lando, 441 U.S. 153 (1979).
38: New York Times Co. v. Sullivan, 376 U.S. 254, 284–86 (1964). See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933–34 (1982). Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657, 688 (1989) ( “the reviewing court must consider the factual record in full” ); Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984) (the “clearly erroneous” standard of Federal Rule of Civil Procedure 52(a) must be subordinated to this constitutional principle).
39: See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ( “under the First Amendment there is no such thing as a false idea” ); Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6 (1970) (holding protected the accurate reporting of a public meeting in which a particular position was characterized as “blackmail” ); Letter Carriers v. Austin, 418 U.S. 264 (1974) (holding protected a union newspaper’s use of epithet “scab” ).
40: 497 U.S. 1 (1990).
41: 497 U.S. at 18.
42: 497 U.S. at 20. In Milkovich the Court held to be actionable assertions and implications in a newspaper sports column that a high school wrestling coach had committed perjury in testifying about a fight involving his team.
43: 497 U.S. at 19.
44: 501 U.S. 496 (1991).
45: 501 U.S. at 517.