Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

*765 Justice White,

concurring in the judgment.

Until New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the law of defamation was almost exclusively the business of state courts and legislatures. Under the then prevailing state libel law, the defamed individual had only to prove a false written publication that subjected him to hatred, contempt, or ridicule. Truth was a defense; but given a defamatory false circulation, general injury to reputation was presumed; special damages, such as pecuniary loss and emotional distress, could be recovered; and punitive damages were available if common-law malice were shown. General damages for injury to reputation were presumed and awarded because the judgment of history was that “in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.” Restatement of Torts § 621, Comment a, p. 314 (1938). The defendant was permitted to show that there was no reputational injury; but at the very least, the prevailing rule was that at least nominal damages were to be awarded for any defamatory publication actionable per se. This rule performed

“a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character since it often permits a defamed , person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom.” Id. §569, Comment 6, p. 166.

Similar rules applied to slanderous statements that were actionable per se. 1

*766 New York Times Co. v. Sullivan was the first major step in what proved to be a seemingly irreversible process of con-stitutionalizing the entire law of libel and slander. Under the rule announced in that case, a public official suing for libel could no longer make out his case by proving a false and damaging publication. He could not establish liability and recover any damages, whether presumed or actually proved, unless he proved “malice,” which was defined as a knowing falsehood or a reckless disregard for the truth. 376 U. S., at 280 . Given that proof, however, the usual damages were available, including presumed and punitive damages. This judgment overturning 200 years of libel law was deemed necessary to implement the First Amendment interest in “uninhibited, robust, and wide-open” debate on public issues. Id., at 270 . Three years later, the same rule was applied to plaintiffs who were not public officials, but who were termed public figures. Curtis Publishing Co. v. Butts, 388 U. S. 130, 155 (1967).

In 1971, four Justices took the view that the New York Times rules should apply wherever a publication concerned any manner of general or public interest, even though the plaintiff was a private person. Rosenbloom v. Metromedia, Inc., 403 U. S. 29 . That view did not command a majority. But in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), the Court again dealt with defamation actions by private individuals, for the first time holding that such plaintiffs could no longer recover by proving a false statement, no matter how damaging it might be to reputation. They must, in addition, prove some “fault,” at least negligence. Id., at 347, 350 . Even with that proof, damages were not presumed but had to be proved. Id., at 349 . Furthermore, no punitive damages were available without proof of New York Times malice. *767 418 U. S., at 350 . This decision, which again purported to implement First Amendment values, seemingly left no defamation actions free from federal constitutional limitations.

I joined the judgment and opinion in New York Times. I also joined later decisions extending the New York Times standard to other situations. But I came to have increasing doubts about the soundness of the Court’s approach and about some of the assumptions underlying it. I could not join the plurality opinion in Rosenbloom , and I dissented in Gertz , asserting that the common-law remedies should be retained for private plaintiffs. I remain convinced that Gertz was erroneously decided. I have also become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation.

In a country like ours, where the people purport to be able to govern themselves through their elected representatives, adequate information about their government is of transcendent importance. That flow of intelligence deserves full First Amendment protection. Criticism and assessment of the performance of public officials and of government in general are not subject to penalties imposed by law. But these First Amendment values are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government. As the Court said in Gertz : “[TJhere is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” 418 U. S., at 340 . Yet in New York Times cases, the public official’s complaint will be dismissed unless he alleges and makes out a jury case of a knowing or reckless falsehood. Absent such proof, there will be no *768 jury verdict or judgment of any kind in his favor, even if the challenged publication is admittedly false. The lie will stand, and the public continue to be misinformed about public matters. This will recurringly happen because the putative plaintiff’s burden is so exceedingly difficult to satisfy and can be discharged only by expensive litigation. Even if the plaintiff sues, he frequently loses on summary judgment or never gets to the jury because of insufficient proof of malice. If he wins before the jury, verdicts are often overturned by appellate courts for failure to prove malice. Furthermore, when the plaintiff loses, the jury will likely return a general verdict and there will be no judgment that the publication was false, even though it was without foundation in reality. 2 The public is left to conclude that the challenged statement was true after all. Their only chance of being accurately informed is measured by the public official’s ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amend *769 ment interests — “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.” Rosenbloom, 403 U. S., at 46-47 (opinion of Brennan, J.); Gertz, supra, at 363-364 (Brennan, J., dissenting).

Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual’s right to the protection of his own good name is a basic consideration of our constitutional system, reflecting “‘our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.’” Gertz, supra, at 341 , quoting Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring). The upshot is that the public official must suffer the injury, often cannot get a judgment identifying the lie for what it is, and has very little, if any, chance of countering that lie in the public press.

The New York Times rule thus countenances two evils: first, the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. In terms of the First Amendment and reputational interests at stake, these seem grossly perverse results.

Of course, the Court in New York Times could not have been unaware of these realities. Despite our ringing endorsement of “wide-open” and “uninhibited” debate, which taken literally would protect falsehoods of all kinds, we cannot fairly be accused of giving constitutional protection to false information as such, for we went on to find competing and overriding constitutional justification for our decision. The constitutional interest in the flow of information about *770 public affairs was thought to be very strong, and discovering the truth in this area very difficult, even with the best of efforts. These considerations weighed so heavily that those who write and speak about public affairs were thought to require some breathing room — that is, they should be permitted to err and misinform the public as long as they act unknowingly and without recklessness. If the press could be faced with possibly sizable damages for every mistaken publication injurious to reputation, the result would be an unacceptable degree of self-censorship, which might prevent the occasional mistaken libel, but would also often prevent the timely flow of information that is thought to be true but cannot be readily verified. The press must therefore be privileged to spread false information, even though that information has negative First Amendment value and is severely damaging to reputation, in order to encourage the full flow of the truth, which otherwise might be withheld.

Gertz is subject to similar observations. Although rejecting the New York Times malice standard where the plaintiff is neither a public official nor a public figure, there the Court nevertheless deprived the private plaintiff of his common-law remedies, making recovery more difficult in order to provide a margin for error. In doing so, the Court ruled that without proof of at least negligence, a plaintiff damaged by the most outrageous falsehoods would be remediless, and the lie very likely would go uncorrected. And even if fault were proved, actual damage to reputation would have to be shown, a burden traditional libel law considered difficult, if not impossible, to discharge. For this reason Justice Powell would not impose on the plaintiff the burden of proving damages in the case now before us.

Although there was much talk in Gertz about liability without fault and the unfairness of presuming damages, all of this, as was the case in New York Times, was done in the name of the First Amendment, purportedly to shield the press and others writing about public affairs from possibly intimidating *771 damages liability. But if protecting the press from intimidating damages liability that might lead to excessive timidity was the driving force behind New York Times and Gertz , it is evident that the Court engaged in severe overkill in both cases.

In New York Times, instead of escalating the plaintiff’s burden of proof to an almost impossible level, we could have achieved our stated goal by limiting the recoverable damages to a level that would not unduly threaten the press. Punitive damages might have been scrutinized as Justice Harlan suggested in Rosenbloom, supra, at 77 , or perhaps even entirely forbidden. Presumed damages to reputation might have been prohibited, or limited, as in Gertz . Had that course been taken and the common-law standard of liability been retained, the defamed public official, upon proving falsity, could at least have had a judgment to that effect. His reputation would then be vindicated; and to the extent possible, the misinformation circulated would have been countered. He might have also recovered a modest amount, enough perhaps to pay his litigation expenses. At the very least, the public official should not have been required to satisfy the actual malice standard where he sought no damages but only to clear his name. In this way, both First Amendment and reputational interests would have been far better served.

We are not talking in these cases about mere criticism or opinion, but about misstatements of fact that seriously harm the reputation of another, by lowering him in the estimation of the community or to deter third persons from associating or dealing with him. Restatement of Torts §559 (1938). The necessary breathing room for speakers can be ensured by limitations on recoverable damages; it does not also require depriving many public figures of any room to vindicate their reputations sullied by false statements of fact. It could be suggested that even without the threat of large presumed and punitive damages awards, press defendants’ communica *772 tion will be unduly chilled by having to pay for the actual damages caused to those they defame. But other commercial enterprises in this country not in the business of disseminating information must pay for the damage they cause as a cost of doing business, and it is difficult to argue that the United States did not have a free and vigorous press before the rule in New York Times was announced. In any event, the New York Times standard was formulated to protect the press from the chilling danger of numerous large damages awards. Nothing in the central rationale behind New York Times demands an absolute immunity from suits to establish the falsity of a defamatory misstatement about a public figure where the plaintiff cannot make out a jury case of actual malice.

I still believe the common-law rules should have been retained where the plaintiff is not a public official or public figure. As I see it, the Court undervalued the reputational interest at stake in such cases. I have also come to doubt the easy assumption that the common-law rules would muzzle the press. But even accepting the Gertz premise that the press also needed protection in suits by private parties, there was no need to modify the common-law requirements for establishing liability and to increase the burden of proof that must be satisfied to secure a judgment authorizing at least nominal damages and the recovery of additional sums within the limitations that the Court might have set. 3

It is interesting that Justice Powell declines to follow the Gertz approach in this case. I had thought that the decision in Gertz was intended to reach cases that involve any false statements of fact injurious to reputation, whether the statement is made privately or publicly and whether or not it implicates a matter of public importance. Justice Powell, however, distinguishes Gertz as a case that involved a matter *773 of public concern, an element absent here. Wisely, in my view, Justice Powell does not rest his application of a different rule here on a distinction drawn between media and nonmedia defendants. On that issue, I agree with Justice Brennan that the First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech. None of our cases affords such a distinction; to the contrary, the Court has rejected it at every turn. 4 It should be rejected again, particularly in this context, since it makes no sense to give the most protection to those publishers who reach the most readers and therefore pollute the channels of communication with the most misinformation and do the most damage to private reputation. If Gertz is to be distinguished from this case, on the ground that it applies only where the allegedly false publication deals with a matter of general or public importance, then where the false publication does not deal with such a matter, the common-law rules would apply whether the defendant is a member of the media or other public disseminator or a nonmedia individual publishing privately. Although Justice Powell speaks only of the inapplicability of the Gertz rule with respect to presumed and *774 punitive damages, it must be that the Gertz requirement of some kind of fault on the part of the defendant is also inapplicable in cases such as this.

As I have said, I dissented in Gertz , and I doubt that the decision in that case has made any measurable contribution to First Amendment or reputational values since its announcement. Nor am I sure that it has saved the press a great deal of money. Like the New York Times decision, the burden that plaintiffs must meet invites long and complicated discovery involving detailed investigation of the workings of the press, how a news story is developed, and the state of mind of the reporter and publisher. See Herbert v. Lando, 441 U. S. 153 (1979). That kind of litigation is very expensive. I suspect that the press would be no worse off financially if the common-law rules were to apply and if the judiciary was careful to insist that damages awards be kept within bounds. A legislative solution to the damages problem would also be appropriate. Moreover, since libel plaintiffs are very likely more interested in clearing their names than in damages, I doubt that limiting recoveries would deter or be unfair to them. In any event, I cannot assume that the press, as successful and powerful as it is, will be intimidated into withholding news that by decent journalistic standards it believes to be true.

The question before us is whether Gertz is to be applied in this case. For either of two reasons, I believe that it should not. First, I am unreconciled to the Gertz holding and believe that it should be overruled. Second, as Justice Powell indicates, the defamatory publication in this case does not deal with a matter of public importance. Consequently, I concur in the Court’s judgment.

At the common law, slander, unlike libel, was actionable per se only when it dealt with a narrow range of statements: those imputing a criminal offense, a venereal or loathsome and communicable disease, improper conduct of a lawful business, or unchastity of a woman. Restatement of Torts *766 § 570 (1938). To be actionable, all other slanderous statements required additional proof of special damages other than an injury to reputation or emotional distress. The special damages most often took the form of material or pecuniary loss. Id. § 575 and Comment b, pp. 185-187.

If the plaintiff succeeds in proving a jury case of malice, it may be that the jury will be asked to bring in separate verdicts on falsity and malice. In that event, there could be a verdict in favor of the plaintiff on falsity, but against him on malice. There would be no judgment in his favor, but the verdict on falsity would be a public one and would tend to set the record right and clear the plaintiff’s name.

It might be suggested that courts, as organs of the government, cannot be trusted to discern what the truth is. But the logical consequence of that view is that the First Amendment forbids all libel and slander suits, for in each such suit, there will be no recovery unless the court finds the publication at issue to be factually false. Of course, no forum is perfect, but that is not a justification for leaving whole classes of defamed individuals without redress or a realistic opportunity to clear their names. We entrust to juries and the courts the responsibility of decisions affecting the life and liberty of persons. It is perverse indeed to say that these bodies are incompetent to inquire into the truth of a statement of fact in a defamation ease. I can therefore discern nothing in the Constitution which forbids a plaintiff to obtain a judicial decree that a statement is false — a decree he can then use in the community to clear his name and to prevent further damage from a defamation already published.

The Court was unresponsive to my suggestion in dissent, 418 U. S., at 391-392 , that the plaintiff should be able to prove and obtain a judgment of falsehood without having to establish any kind of fault.

We explained in Branzburg v. Hayes, 408 U. S. 665 (1972) that “the informative function asserted by representatives of the organized press” to justify greater privileges under the First Amendment was also “performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.” Id., at 705 . From its inception, without discussing the issue, we have applied the rule of New York Times to nonmedia defendants. See New York Times, 376 U. S., at 254 , n., 286; Henry v. Collins, 380 U. S. 356 (1965); Garrison v. Louisiana, 379 U. S. 64 (1964). And this Court has made plain that the organized press has a monopoly neither on the First Amendment nor on the ability to enlighten. First National Bank of Boston v. Bellotti, 435 U. S. 765, 782 (1978). See also Pell v. Procunier, 417 U. S. 817 (1974) (press has no independent First Amendment right of access to prisons). Cf. Buckley v. Valeo, 424 U. S. 1, 48-49 (1976) (the idea that government can restrict the speech of some elements of society to enhance the relative voice of others is “wholly foreign” to the First Amendment).