Defamation and False Statements

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One of the most seminal shifts in constitutional 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 foreclosed by the “label” attached to something. “Like . . . the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.” 2 “The general proposition,” the Court continued, “that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e consider this 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

Erroneous statement is protected, the Court asserted, there being no exception “for any test of truth.” Error is inevitable in any free debate and to place liability upon that score, and especially to place on the speaker the burden of proving truth, would introduce self-censorship and stifle the free expression which the First Amendment protects.5 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.” 6 That neither factual error nor defamatory content could penetrate the protective circle of the First Amendment was the “lesson” to be drawn from the great debate over the Sedition Act of 1798, which the Court reviewed in some detail to discern the “central meaning of the First Amendment.” 7 Thus, it appears, the libel law under consideration failed the test of constitutionality because of its kinship with seditious libel, which violated the “central meaning of the First Amendment.” “The constitutional guarantees require, we think, a federal rule that 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 Frankfurter had relied in analogy to uphold the group libel law in Beauharnais.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.

The teaching of Times and the cases following it is that expression on matters of public interest is protected by the First Amendment. Within that area of protection is commentary about the public actions of individuals. The fact that expression contains falsehoods does not deprive it of protection, because otherwise such expression in the public interest would be deterred by monetary judgments and self-censorship imposed for fear of judgments. But, over the years, the Court has developed an increasingly complex set of standards governing who is protected to what degree with respect to which matters of public and private interest.

Individuals to whom the Times rule applies presented one of the first issues for determination. At times, the Court has keyed it to the importance of the position held. “There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the ‘public official’ designation applies 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 this focus seems to have become diffused and the concept of “public official” has appeared 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 is protected. Certainly, the conduct of official duties by public officials is subject to the widest scrutiny and criticism.15 But the Court has held as well 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

For a time, the Court’s decisional process threatened to expand the Times privilege so as to obliterate the distinction between private and public figures. First, the Court created a subcategory of “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 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 the voluntariness of the assumption of a role in public affairs that will make of one a “public figure.” 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 set off on a new path of limiting recovery for defamation by private persons. Henceforth, 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.”

The Court’s opinion by Justice Powell established competing constitutional considerations. On the one hand, imposition upon the press of liability for every misstatement would deter not only false speech but much truth as well; the possibility that the press might have to prove everything it prints would lead to self-censorship and the consequent deprivation of the public of access to information. On the other hand, there is a legitimate state interest in compensating individuals for the harm inflicted on them by defamatory falsehoods. An individual’s right to the protection of his own good name is, at bottom, but a reflection of our society’s concept of the worth of the individual. Therefore, an accommodation must be reached. The Times rule had been a proper accommodation when public officials or public figures were concerned, inasmuch as by their own efforts they had brought themselves into the public eye, had created a need in the public for information about them, and had at the same time attained an ability to counter defamatory falsehoods published about them. Private individuals are not in the same position and need greater protection. “We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” 22 Thus, some degree of fault must be shown.

Generally, juries may award substantial damages in tort for presumed injury to reputation merely upon a showing of publication. But this discretion of juries had the potential to inhibit the exercise of freedom of the press, and moreover permitted juries to penalize unpopular opinion through the awarding of damages. Therefore, defamation plaintiffs who do not prove actual malice—that is, knowledge of falsity or reckless disregard for the truth—will be limited to compensation for actual provable injuries, such as out-of-pocket loss, impairment of reputation and standing, personal humiliation, and mental anguish and suffering. A plaintiff who proves actual malice will be entitled as well to collect punitive damages.23

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,24 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.25 Also not a public figure for purposes of allegedly defamatory comment about the value of his research was a scientist who sought and received federal grants for research, the results of which were published in scientific journals.26 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.27

Commentary about matters of “public interest” when it defames someone is apparently, after Firestone28 and Gertz, to be protected to the degree that the person defamed is a public official or candidate for public office, public figure, or private figure. That there is a controversy, that there are matters that may be of “public interest,” is insufficient to make a private person a “public figure” for purposes of the standard of protection in defamation actions.

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—the Gertz situation, in other words—the burden is on the plaintiff to establish the falsity of the information. Thus, the Court held in Philadelphia Newspapers v. Hepps,29 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 pointed out, that a Gertz plaintiff must establish falsity in addition to establishing some degree of fault (e.g., negligence).30 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 the sale of credit reporting information to subscribers is not such a matter of public concern.31 What significance, if any, is to be attributed to the fact that a media defendant rather than a private defendant has been sued is left unclear. 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.32 In Philadelphia Newspapers, however, the Court expressly reserved the issue of “what standards would apply if the plaintiff sues a nonmedia defendant.” 33

Other issues besides who is covered by the Times privilege are of considerable importance. The use of the expression “actual malice” has been confusing in many respects, because it is in fact a concept distinct from the common law meaning of malice or the meanings common understanding might give to it.34 Constitutional “actual malice” means that the defamation was published with knowledge that it was false or with reckless disregard of whether it was false.35 Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered.36 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 ordinarily borne in civil cases, that the defendant acted with knowledge of falsity or with reckless disregard.37 Moreover, the Court has held, a Gertz plaintiff has the burden of proving the actual falsity of the defamatory publication.38 A plaintiff suing the press39 for defamation under the Times or Gertz standards is not limited to attempting to prove his case without resort to discovery of the defendant’s editorial processes in the establishment of “actual malice.” 40 The state of mind of the defendant may be inquired into and the thoughts, opinions, and conclusions with respect to the material gathered and its review and handling are proper subjects of discovery. 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.41

There had been some indications that statements of opinion, unlike assertions of fact, are absolutely protected,42 but the Court held in Milkovich v. Lorain Journal Co.43 that there is no constitutional distinction between fact and opinion, hence no “wholesale defamation exemption” for any statement that can be labeled “opinion.” 44 The issue instead is whether, regardless of the context in which a statement is uttered, it 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,” 45 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.” 46

Substantial meaning is also the key to determining whether inexact quotations are defamatory. Journalistic conventions allow some alterations to correct grammar and syntax, but the Court in Masson v. New Yorker Magazine47 refused to draw a distinction on that narrow basis. Instead, “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.” 48

As defamatory false statements can lead to legal liability, so can false statements in other contexts run afoul of legal prohibitions. For instance, more than 100 federal criminal statutes punish false statements in areas of concern to federal courts or agencies,49 and the Court has often noted the limited First Amendment value of such speech.50 The Court, however, has declined to find that all false statements fall outside of First Amendment protection. In United States v. Alvarez,51 the Court overturned the Stolen Valor Act of 2005,52 which imposed criminal penalties for falsely representing oneself to have been awarded a military decoration or medal. In an opinion by Justice Kennedy, four Justices distinguished false statement statutes that threaten the integrity of governmental processes or that further criminal activity, and evaluated the Act under a strict scrutiny standard.53

Noting that the Stolen Valor Act applied to false statements made “at any time, in any place, to any person,” 54 Justice Kennedy suggested that upholding this law would leave the government with the power to punish any false discourse without a clear limiting principle. Justice Breyer, in a separate opinion joined by Justice Kagan, concurred in judgment, but did so only after evaluating the prohibition under an intermediate scrutiny standard. While Justice Breyer was also concerned about the breadth of the act, his opinion went on to suggest that a similar statute, more finely tailored to situations where a specific harm is likely to occur, could withstand legal challenge.55

1: 376 U.S. 254 (1964).
2: 376 U.S. at 269. Justices Black, Douglas, and 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 271–72, 278–79. Of course, the substantial truth of an utterance is ordinarily a defense to defamation. See Masson v. New Yorker Magazine, 501 U.S. 496, 516 (1991).
6: 376 U.S. at 272–73.
7: 376 U.S. at 273.
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).
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 an attempted distinction that these criticisms were not of the manner in which the judges conducted their courts but were personal attacks upon their integrity and honesty. “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 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 that alleged, respectively, the fixing of a football game and the leading of a violent crowd in opposition to enforcement of a desegregation decree. The Court was extremely divided, but the rule that emerged was largely the one developed in the Chief Justice’s opinion. Essentially, four Justices opposed application of 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 Justices Harlan, Clark, Stewart, and Fortas). Three Justices applied Times, id. at 162 (Chief Justice Warren), and id. at 172 (Justices Brennan and White). Two Justices would have applied absolute immunity. Id. at 170 (Justices Black and Douglas). 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 (1974).
22: 418 U.S. at 347.
23: 418 U.S. at 348–50. Justice Brennan would have adhered to Rosenbloom, id. at 361, while Justice White thought the Court went too far in constitutionalizing the law of defamation. Id. at 369.
24: Time, Inc. v. Firestone, 424 U.S. 448 (1976).
25: Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979).
26: Hutchinson v. Proxmire, 443 U.S. 111 (1979).
27: 443 U.S. at 134 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)).
28: Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976). See also Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979).
29: 475 U.S. 767 (1986).
30: 475 U.S. at 780 (Stevens, J., dissenting).
31: 472 U.S. 749 (1985). Justice Powell wrote a plurality opinion joined by Justices Rehnquist and O’Connor, and Chief Justice Burger and Justice White, both of whom had dissented in Gertz, added brief concurring opinions agreeing that the Gertz standard should not apply to credit reporting. Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissented, arguing that Gertz had not been limited to matters of public concern, and should not be extended to do so.
32: 472 U.S. at 753 (plurality); id. at 773 (Justice White); id. at 781–84 (dissent).
33: 475 U.S. at 779 n.4. Justice Brennan added a brief concurring opinion expressing his view that such a distinction is untenable. Id. at 780.
34: See, e.g., Herbert v. Lando, 441 U.S. 153, 199 (1979) (Justice Stewart dissenting).
35: 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).
36: 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 Communications v. Connaughton, 491 U.S. 657 (1989) (nonetheless upholding the lower court’s finding of actual malice based on the “entire record” ).
37: 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).
38: Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) (leaving open the issue of what “quantity” or standard of proof must be met).
39: Because the defendants in these cases have typically been media defendants (but see Garrison v. Louisiana, 379 U.S. 64 (1964); Henry v. Collins, 380 U.S. 356 (1965)), and because of the language in the Court’s opinions, some have argued that only media defendants are protected under the press clause and individuals and others are not protected by the speech clause in defamation actions. See discussion, supra, under “Freedom of Expression: Is There a Difference Between Speech and Press?”
40: Herbert v. Lando, 441 U.S. 153 (1979).
41: 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 Communications 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).
42: 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” ).
43: 497 U.S. 1 (1990).
44: 497 U.S. at 18.
45: 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.
46: 497 U.S. at 19.
47: 501 U.S. 496 (1991).
48: 501 U.S. at 517.
49: United States v. Wells, 519 U.S. 482, 505–507, nn. 8–10 (1997) (Stevens, J., dissenting) (listing statute citations).
50: See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. at 52 (1988) ( “False statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas.” ); Virginia State Bd. of Pharmacy Virginia Citizens Consumer Council, 425 U.S. at 771 ( “Untruthful speech, commercial or otherwise, has never been protected for its own sake.” ).
51: 567 U.S. ___, No. 11-210, slip op. (2012).
52: 18 U.S.C. § 704.
53: Alvarez, slip op. at 8-12 (Kenndy, J.). Justice Kennedy was joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor.
54: Alvarez, slip op. at 10 (Kennedy, J). Justice Kennedy was joined in his opinion by Chief Justice Roberts, and Justices Ginsburg and Sotomayor.
55: Alvarez, slip op. at 8–9 (Breyer, J).