Gertz v. Robert Welch, Inc.

*361 Mr. Justice Brennan,

dissenting.

I agree with the conclusion, expressed in Part V of the Court’s opinion, that, at the time of publication of respondent’s article, petitioner could not properly have been viewed as either a “public official” or “public figure”; instead, respondent’s article, dealing with an alleged conspiracy to discredit local police forces, concerned petitioner’s purported involvement in “an event of public or general interest.” Roosenbloom v. Metromedia, Inc., 403 U. S. 29, 31-32 (1971); see ante, at 331-332, n. 4. I cannot agree, however, that free and robust debate— so essential to the proper functioning of our system of government — -is permitted adequate “breathing space,” NAACP v. Button, 371 U. S. 415, 433 (1963), when, as the Court holds, the States may impose all but strict liability for defamation if the defamed party is a private person and “the substance of the defamatory statement ‘makes substantial danger to reputation apparent.’ ” Ante, at 348. 1 I adhere to my view expressed in Rosen-bloom v. Metromedia, Inc., supra, that we strike the proper accommodation between avoidance of media self-censorship and protection of individual reputations only when we require States to apply the New York Times Co. v. Sullivan, 376 U. S. 254 (1964), knowing-or-reckless-falsity standard in civil libel actions concerning media reports of the involvement of private individuals in events of public or general interest.

The Court does not hold that First Amendment guarantees do not extend to speech concerning private persons’ involvement in events of public or general interest. It recognizes that self-governance in this country perseveres because of our “profound national com *362 mitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Id., at 270 (emphasis added). Thus, guarantees of free speech and press necessarily reach “far more than knowledge and debate about the strictly official activities of various levels of government,” Rosenbloom v. Metromedia, Inc., supra, at 41; for “[f]reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 102 (1940).

The teaching to be distilled from our prior cases is that, while public interest in events may at times be influenced by the notoriety of the individuals involved, “[t]he public’s primary interest is in the event[,] . . . tile conduct of the participant and the content, effect, and significance of the conduct....” Rosenbloom, supra, at 43 . Matters of public or general interest do not “suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved.” Ibid. See Time, Inc. v. Hill, 385 U. S. 374, 388 (1967).

Although acknowledging that First Amendment values are of no less significance when media reports concern private persons’ involvement in matters of public concern, the Court refuses to provide, in such cases, the same level of constitutional protection that has been afforded the media in the context of defamation of public persons. The accommodation that this Court has established between free speech and libel laws in cases involving public officials and public figures — that defamatory falsehood be shown by clear and convincing evidence to have been published with knowledge of falsity or with reckless disregard of truth — is not apt, the Court holds, because *363 the private individual does not have the same degree of access to the media to rebut defamatory comments as does the public person and he has not voluntarily exposed himself to public scrutiny.

While these arguments are forcefully and eloquently presented, I cannot accept them, for the reasons I stated in Rosenbioom:

“The New York Times standard was applied to libel of a public official or public figure to give effect to the [First] Amendment's function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not ‘hot’ news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye . . . , the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media’s continuing interest in the story. Thus the unproved, and highly improbable, generalization that an as yet [not fully defined] class of ‘public figures’ involved in matters of public concern will be better able to respond through the media than private individuals also involved in such matters seems too insubstantial *364 a reed on which to rest a constitutional distinction.” 403 U. S., at 46-47 .

Moreover, the argument that private persons should not be required to prove New York Times knowing-or-reckless falsity because they do not assume the risk of defamation by freely entering the public arena “bears little relationship either to the values protected by the First Amendment or to the nature of our society.” Id., at 47 . Social interaction exposes all of us to some degree of public view. This Court has observed that “[t]he risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.” Time, Inc. v. Hill, 385 U. S., at 388 . Therefore,

“[v]oluntarily or not, we are all ‘public’ men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See . . . Griswold v. Connecticut, 381 U. S. 479 (1965). Thus, the idea that certain ‘public’ figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of ‘public figures’ that are not in the area of public or general concern.” Rosenbloom, supra, at 48 (footnote omitted).

To be sure, no one commends publications which defame the good name and reputation of any person: “In an ideal world, the responsibility of the press would match the freedom and public trust given it.” Id., at *365 51 . 2 Rather, as the Court agrees, some abuse of First Amendment freedoms is tolerated only to insure that would-be commentators on events of public or general interest are not “deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” New York Times Co. v. Sullivan, 376 U. S., at 279 . The Court's holding and a fortiori my Brother White’s views, see n. 1, supra, simply deny free expression its needed “breathing space.” Today’s decision will exacerbate the rule of self-censorship of legitimate utterance as publishers “steer far wider of the .unlawful zone,” Speiser v. Randall, 357 U. S. 513, 526 (1958).

We recognized in New York Times Co. v. Sullivan, supra, at 279 , that a rule requiring a critic of official conduct to guarantee the truth of all of his factual contentions would inevitably lead to self-censorship when *366 publishers, fearful of being unable to prove truth or unable to bear the expense of attempting to do so, simply eschewed printing controversial articles. Adoption, by many States, of a reasonable-care standard in cases where private individuals are involved in matters of public interest — the probable result of today’s decision — will likewise lead to self-censorship since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable-care standard is “elusive,” Time, Inc. v. Hill, supra, at 389 ; it saddles the press with “the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.” Ibid. Under a reasonable-care regime, publishers and broadcasters will have to make pre-publication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy. See The Supreme Court, 1970 Term, 85 Harv. L. Rev. 3 , 228 (1971). Moreover, in contrast to proof by clear and convincing evidence required under the New York Times test, the burden of proof for reasonable care will doubtless be the preponderance of the evidence.

“In the normal civil suit where [the preponderance of the evidence] standard is employed, ‘we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor.’ In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement . . . but the *367 possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate.” Rosenbloom, 403 U. S., at 50 .

And, most hazardous, the flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into “an instrument for the suppression of those 'vehement, caustic, and sometimes unpleasantly sharp attacks/ . . . which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 (1971).

The Court does not discount altogether the danger that jurors will punish for the expression of unpopular opinions. This probability accounts for the Court’s limitation that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Ante, at 349. But plainly a jury’s latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court’s broad-ranging examples of “actual injury,” including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doing so. Finally, even a limitation of recovery to “actual injury” — however much it reduces the size or frequency of recoveries — will not provide the necessary elbowroom for First Amendment expression.

“It is not simply the possibility of a judgment for damages that results in self-censorship. The very *368 possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to 'steer far wider of the unlawful zone’ thereby keeping protected discussion from public cognizance. . . . Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be 'actual’ or 'punitive.’ ” Rosenbloom, supra, at 52-53 .

On the other hand, the uncertainties which the media face under today’s decision are largely avoided by the New York Times standard. I reject the argument that my Rosenbloom view improperly commits to judges the task of determining what is and what is not an issue of “general or public interest.” 3 I noted in Rosenbloom *369 that performance of this task would not always be easy. Id., at 49 n. 17. But surely the courts, the ultimate arbiters of all disputes concerning clashes of constitutional values, would only be performing one of their traditional functions in undertaking this duty. Also, the difficulty of this task has been substantially lessened by that “sizable body of cases, decided both before and after Rosenbloom, that have employed the concept of a matter of public concern to reach decisions in . . . cases dealing with an alleged libel of a private individual that employed a public interest standard . . . and . . . cases that applied Butts to the alleged libel of a public figure.” Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich. L. Rev. 1547 , 1560 (1972). The public interest is necessarily broad; any residual self-censorship that may result from the uncertain contours of the “general or public interest” concept should be of far less concern to publishers and broadcasters than that occasioned by state laws imposing liability for negligent falsehood.

Since petitioner failed, after having been given a full and fair opportunity, to prove that respondent published the disputed article with knowledge of its falsity or with reckless disregard of the truth, see ante, at 329-330, n. 2, I would affirm the judgment of the Court of Appeals.

A fortiori I disagree with my Brother White’s view that the States should have free rein to impose strict liability for defamation in cases not involving public persons.

A respected commentator has observed that factors other than purely legal constraints operate to control the press:

“Traditions, attitudes, and general rules of political conduct are far more important controls. The fear of opening a credibility gap, and thereby lessening one’s influence, holds some participants in check. Institutional pressures in large organizations, including some of the press, have a similar effect; it is difficult for an organization to have an open policy of making intentionally false accusations.” T. Emerson, The System of Freedom of Expression 538 (1970).

Typical of the press’ own ongoing self-evaluation is a proposal to establish a national news council, composed of members drawn from the public and the journalism profession, to examine and report on complaints concerning the accuracy and fairness of news reporting by the largest newsgathering sources. Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press (1973). See also Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich. L. Rev. 1547 , 1569-1570 (1972).

The Court, taking a novel step, would not limit application of First Amendment protection to private libels involving issues of general or public interest, but would forbid the States from imposing liability without fault in any case where the substance of the defamatory statement made substantial danger to reputation apparent. As in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 , 44 n. 12, 48-49, n. 17 (1971), I would leave open the question of what constitutional standard, if any, applies when defamatory falsehoods are published or broadcast concerning either a private or public person's activities not within the scope of the general or public interest.

Parenthetically, my Brother White argues that the Court’s view and mine will prevent a plaintiff — unable to demonstrate some degree of fault — from vindicating his reputation by securing a judgment that the publication was false. This argument overlooks the possible enactment of statutes, not requiring proof of fault, which provide for an action for retraction or 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. Cf. Note, Vindication of the Reputation of a Public Official, 80 Harv. L. Rev. 1730 , 1739-1747 (1967). Although it may be that questions could be raised concerning the constitutionality of such statutes, certainly nothing I have said today (and, as I read the Court’s opinion, nothing said there) should be read to imply that a private plaintiff, unable to prove fault, must inevitably be denied the oppor *369 tunity to secure a judgment upon the truth or falsity of statements published about him. Cf. Rosenbloom v. Metromedia, Inc., supra, at 47, and n. 15.