Time, Inc. v. Firestone

Me. Justice White,

dissenting.

I would affirm the judgment of the Florida Supreme Court because First Amendment values will not be furthered in any way by application to this case of the fault standards newly drafted and imposed by Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), upon which my *482 Brother Rehnquist relies, or the fault standards required by Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), upon which my Brother Brennan relies; and because, in any event, any requisite fault was properly found below.

The jury found on ample evidence that the article published by petitioner Time, Inc., about respondent Firestone was false and defamatory. This Court has held, and no one seriously disputes, that, regardless of fault, “there is no constitutional value in false statements of fact.” “They belong to that category of utterances which '. . . are of such slight social value as’ ” to be worthy of no First Amendment protection. Gertz v. Robert Welch, Inc., supra, at 340, quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942). This Court’s decisions from New York Times Co. v. Sullivan, 376 U. S. 254 (1964), through Gertz v. Robert Welch, Inc., supra, holding that the Constitution requires a finding of some degree of fault as a precondition to a defamation award, have done so for one reason and one reason alone: unless innocent falsehood is allowed as a defense, some true speech will also be deterred. Thus “[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters,” Gertz v. Robert Welch, Inc., supra, at 341 (emphasis supplied), e. g., true fact statements. In light of these decisions, the threshold question in the instant case should be whether requiring proof of fault on the part of Time, Inc., as a precondition to recovery in this case— and thereby possibly interfering with the State’s desire to compensate respondent Firestone — will contribute in any way to the goal of protecting “speech that matters.” I think it would not.

At the time of the defamatory publication in this case — December 1967 — the law clearly authorized lia *483 bility without fault in defamation cases of the sort involved here. * Whatever the chilling effect of that rule of law on publication of “speech that matters” in 1967 might have been, it has already occurred and is now irremediable. The goal of protecting “speech that maters” by announcing rules, as this Court did in Gertz v. Robert Welch, Inc., supra, and Rosenbloom v. Metromedia, Inc., supra, requiring fault as a precondition to a defamation recovery under circumstances such as are involved here, is fully achieved so long as fault is required for cases in which the publication occurred after the dates of those decisions. This is not such a case.

Therefore, to require proof of fault in this case — or in any other case predating Gertz and Rosenbloom in which a private figure is defamed — is to interfere with the State’s otherwise legitimate policy of compensating defamation victims without furthering First Amendment goals in any way at all. In other areas in which the Court has developed a rule designed not to achieve justice in the case before it but designed to induce socially desirable conduct by some group in the future, the Court has declined to apply the rule to fact situations predating its announcement, e. g., Williams v. *484 United States, 401 U. S. 646, 653 (1971) (plurality opinion). The Court should follow a similar path here.

In any event, the judgment of the court below should be affirmed. My Brother Rehnquist concludes that negligence is sufficient fault, under Gertz , to justify the judgment below, and that a finding of negligence may constitutionally be supplied by the Florida Supreme Court. I agree. Furthermore, the state court referred to Gertz v. Robert Welch, Inc., by name; noted the “convincing evidence of . . . negligence” in the case; pointed out that a careful examination of the divorce decree would have “clearly demonstrated” that the divorce was not grounded on adultery, as reported by Time, Inc.; and stated flatly: “This is a flagrant example of 'journalistic negligence.'” 305 So. 2d 172, 178 (1974). It appears to me that the Florida Supreme Court has made a sufficiently “conscious determination,” ante, at 463, of the fact of negligence. If it is Gertz that controls this case and if that decision is to be applied retroactively, I would affirm the judgment.

Konigsberg v. State Bar of California, 366 U. S. 36, 49 , and n. 10 (1961); Times Film Corp. v. Chicago, 365 U. S. 43, 48 (1961); Roth v. United States, 354 U. S. 476, 486-487 (1957); Beauharnais v. Illinois, 343 U. S. 250, 266 (1952); Pennekamp v. Florida, 328 U. S. 331, 348-349 (1946); Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 715 (1931). The majority concludes that respondent Firestone was neither a “public official” nor a “public figure,” New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and therefore that this case does not fall within any exception, then announced, to the Court’s statements that common-law defamation rules do not violate the First Amendment. In this respect I agree with the majority.