Rosenbloom v. Metromedia

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 66 Argued: December 7, 1970 --- Decided: June 7, 1971
MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join.

In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court has considered the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press. New York Times held that in a civil libel action by a public official against a newspaper those guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with "knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 280. The same requirement was later held to apply to "public figures" who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of "public officials" or "public figures," usually, but not always, against newspapers or magazines. [n1] Common to all the cases was a [p31] defamatory falsehood in the report of an event of "public or general interest." [n2] The instant case presents the question whether the New York Times' "knowing or reckless falsity standard" applies in a state civil libel action brought not by a "public official" or a "public figure," but by a private individual for a defamatory falsehood uttered in a news broadcast by a radio station about the individual's involvement in an event of public or general [p32] interest. [n3] The District Court for the Eastern District of Pennsylvania held that the New York Times standard did not apply. and that Pennsylvania law determined respondent's liability in this diversity case, 289 F.Supp. 737 (1968). The Court of Appeals for the Third Circuit held that the New York Times standard did apply, and reversed the judgment for damages awarded to petitioner by the jury. 415 F.2d 892 (1969). We granted certiorari, 397 U.S. 904 (1970). We agree with the Court of Appeals, and affirm that court's judgment.

I

In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. During the fall of that year, in response to citizen complaints, the Special Investigations Squad of the Philadelphia Police Department initiated a series of enforcement actions under the city's obscenity laws. The police, under the command of Captain Ferguson, purchased various magazines from more than 20 newsstands throughout the city. Based upon Captain Ferguson's determination that the magazines were obscene, [n4] police, on October 1, 1963, arrested most of the newsstand operators [n5] on charges of selling obscene material. While the police were making an arrest at one newsstand, petitioner arrived to deliver some of his nudist magazines, and was immediately arrested [p33] along with the newsboy. [n6] Three days later, on October 4, the police obtained a warrant to search petitioner's home and the rented barn he used as a warehouse, and seized the inventory of magazines and books found at these locations. Upon learning of the seizures, petitioner, who had been released on bail after his first arrest, surrendered to the police and was arrested for a second time.

Following the second arrest, Captain Ferguson telephoned respondent's radio station WIP and another local radio station, a wire service, and a local newspaper to inform them of the raid on petitioner's home and of his arrest. WIP broadcast news reports every half hour to the Philadelphia metropolitan area. These news programs ran either five or ten minutes, and generally contained from six to twenty different items that averaged about thirty seconds each. WIP's 6 p.m. broadcast on October 4, 1963, included the following item:

City Cracks Down on Smut Merchants

The Special Investigations Squad raided the home of George Rosenbloom in the 1800 block of Vesta Street this afternoon. Police confiscated 1,000 allegedly obscene books at Rosenbloom's home and arrested him on charges of possession of obscene literature. The Special Investigations Squad also raided a barn in the 20 Hundred block of Welsh Road near Bustleton Avenue and confiscated 3,000 obscene books. Capt. Ferguson says he believes they have hit the supply of a main distributor of obscene material in Philadelphia. [p34]

This report was rebroadcast in substantially the same form at 6:30 p.m., but at 8 p.m., when the item was broadcast for the third time, WIP corrected the third sentence to read "reportedly obscene." News of petitioner's arrest was broadcast five more times in the following twelve hours, but each report described the seized books as "allegedly" or "reportedly" obscene. From October 5 to October 21, WIP broadcast no further reports relating to petitioner.

On October 16, petitioner brought an action in Federal District Court against various city and police officials and against several local news media. [n7] The suit alleged that the magazines petitioner distributed were not obscene, and sought injunctive relief prohibiting further police interference with his business, as well as further publicity of the earlier arrests. The second series of allegedly defamatory broadcasts related to WIP's news reports of the lawsuit. There were ten broadcasts on October 21, two on October 25, and one on November 1. None mentioned petitioner by name. The first, at 6:30 a.m. on October 21, was pretty much like those that followed:

Federal District Judge Lord, will hear arguments today from two publishers and a distributor all seeking an injunction against Philadelphia Police Commissioner Howard Leary . . . District Attorney James C. Crumlish . . . a local television station and a newspaper . . . ordering them to lay off the smut literature racket.

The girlie-book peddlers say the police crackdown [p35] and continued reference to their borderline literature as smut or filth is hurting their business. Judge Lord refused to issue a temporary injunction when he was first approached. Today he'll decide the issue. It will set a precedent . . . and if the injunction is not granted . . . it could signal an even more intense effort to rid the city of pornography.

On October 27, petitioner went to WIP's studios after hearing from a friend that the station had broadcast news about his lawsuit. Using a lobby telephone to talk with a part-time newscaster, petitioner inquired what stories WIP had broadcast about him. The newscaster asked him to be more specific about dates and times. Petitioner then asked for the noon news broadcast on October 21, 1963, which the newscaster read to him over the phone; it was similar to the above 6:30 a.m. broadcast. According to petitioner, the ensuing interchange was brief. Petitioner told the newscaster that his magazines were "found to be completely legal and legitimate by the United States Supreme Court." When the newscaster replied the district attorney had said the magazines were obscene, petitioner countered that he had a public statement of the district attorney declaring the magazines legal. At that point, petitioner testified, "the telephone conversation was terminated. . . . He just hung up." Petitioner apparently made no request for a retraction or correction, and none was forthcoming. WIP's final report on petitioner's lawsuit -- the only one after petitioner's unsatisfactory conversation at the station -- occurred on November 1 after the station had checked the story with the judge involved. [n8] [p36]

II

In May, 1964 a jury acquitted petitioner in state court of the criminal obscenity charges under instructions of the trial judge that, as a matter of law, the nudist magazines distributed by petitioner were not obscene. Following his acquittal, petitioner filed this diversity action in District Court seeking damages under Pennsylvania's libel law. Petitioner alleged that WIP's unqualified characterization of the books seized as "obscene" in the 6 and 6:30 p.m. broadcasts of October 4, describing his arrest, constituted libel per se and was proved false by petitioner's subsequent acquittal. In addition, he alleged that the broadcasts in the second series describing his court suit for injunctive relief were also false and defamatory in that WIP characterized petitioner and his business associates as "smut distributors" and "girlie-book peddlers" and, further, falsely characterized the suit as an attempt to force the defendants "to lay off the smut literature racket."

At the trial, WIP's defenses were truth and privilege. WIP's news director testified that his eight-man staff of reporters prepared their own newscasts and broadcast their material themselves, and that material for the news programs usually came either from the wire services or from telephone tips. None of the writers or broadcasters involved in preparing the broadcasts in this case testified. The news director's recollection was that the primary source of information for the first series of broadcasts [p37] about petitioner's arrest was Captain Ferguson, but that, to the director's knowledge, the station did not have any further verification. Captain Ferguson testified that he had informed WIP and other media of the police action, and that WIP had accurately broadcast what he told the station. The evidence regarding WIP's investigation of petitioner's lawsuit in the second series of broadcasts was even more sparse. The news director testified that he was "sure we would check with the District Attorney's office also and with the Police Department," but "it would be difficult for me to specifically state what additional corroboration we had." In general, he testified that WIP's half-hour deadlines required it to rely on wire service copy and oral reports from previously reliable sources, subject to the general policy that "we will contact as many sources as we possibly can on any kind of a story."

III

Pennsylvania's libel law tracks almost precisely the Restatement (First) of Torts provisions on the subject. Pennsylvania holds actionable any unprivileged "malicious" [n9] publication of matter which tends to harm a person's reputation and expose him to public hatred, contempt, or ridicule. Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954); Restatement of Torts §§ 558, 559 (1938). Pennsylvania law recognizes truth as a complete defense to a libel action. Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969); Restatement of Torts § 582. It recognizes an absolute immunity for defamatory statements made by high state officials, even if published with an improper motive, actual malice, or knowing falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); Restatement of Torts § 591, [p38] and it recognizes a conditional privilege for news media to report judicial, administrative, or legislative proceedings if the account is fair and accurate, and not published solely for the purpose of causing harm to the person defamed, even though the official information is false or inaccurate. Sciandra v. Lynett, 409 Pa. 595, 600-601, 187 A.2d 586, 588-589 (1963); Restatement of Torts § 611. The conditional privilege of the news media may be defeated, however, by

"want of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication." The failure to employ such "reasonable care and diligence" can destroy a privilege which otherwise would protect the utterer of the communication.

Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A.2d 662, 668 (1963). Pennsylvania has also enacted verbatim the Restatement's provisions on burden of proof, which place the burden of proof for the affirmative defenses of truth and privilege upon the defendant. [n10] [p39]

At the close of the evidence, the District Court denied respondent's motion for a directed verdict and charged the jury, in conformity with Pennsylvania law, that four findings were necessary to return a verdict for petitioner: (1) that one or more of the broadcasts were defamatory; (2) that a reasonable listener would conclude that the defamatory statement referred to petitioner; (3) that WIP had forfeited its privilege to report official proceedings fairly and accurately, either because it intended to injure the plaintiff personally or because it exercised the privilege unreasonably and without reasonable care; and (4) that the reporting was false. The jury was instructed that petitioner had the burden of proof on the first three issues, but that respondent had the burden of proving that the reporting was true. The jury was further instructed that, "as a matter of law," petitioner was not entitled to actual damages claimed for loss of business "not because it wouldn't ordinarily be, but because there has been evidence that this same subject matter was the subject" of broadcasts over other television and radio stations and of newspaper reports, "so if there was any business lost . . . we have no proof . . . that [it] resulted directly from the broadcasts by WIP. . . ." App. 331a. On the question of punitive damages, the judge gave the following instruction:

[I]f you find that this publication arose from a bad motive or malice toward the plaintiff, or if you find that it was published with reckless indifference to the truth, if you find that it was not true, you would be entitled to award punitive damages, and punitive damages are awarded as a deterrent from future conduct of the same sort.

They really are awarded only for outrageous conduct, as I have said, with a bad motive or with reckless disregard of the interests of others, and before [p40] you would award punitive damages, you must find that these broadcasts were published with a bad motive or with reckless disregard of the rights of others, or reckless indifference to the rights of others. . . .

The jury returned a verdict for petitioner and awarded $25,000 in general damages, and $725,000 in punitive damages. The District Court reduced the punitive damages award to $250,000 on remittitur, but denied respondent's motion for judgment n.o.v. In reversing, the Court of Appeals emphasized that the broadcasts concerned matters of public interest, and that they involved "hot news" prepared under deadline pressure. The Court of Appeals concluded that

the fact that plaintiff was not a public figure cannot be accorded decisive importance if the recognized important guarantees of the First Amendment are to be adequately implemented.

415 F.2d at 896. For that reason, the court held that the New York Times standard applied and, further, directed that judgment be entered for respondent, holding that, as a matter of law, petitioner's evidence did not meet that standard.

IV

Petitioner concedes that the police campaign to enforce the obscenity laws was an issue of public interest, and, therefore, that the constitutional guarantees for freedom of speech and press imposed limits upon Pennsylvania's power to apply its libel laws to compel respondent to compensate him in damages for the alleged defamatory falsehoods broadcast about his involvement. As noted, the narrow question he raises is whether, because he is not a "public official" or a "public figure," but a private individual, those limits required that he prove that the falsehoods resulted from a failure of respondent to exercise reasonable care, or required that he prove that [p41] the falsehoods were broadcast with knowledge of their falsity or with reckless disregard of whether they were false or not. That question must be answered against the background of the functions of the constitutional guarantees for freedom of expression. Rosenblatt v. Baer, 383 U.S. 75, at 84-85, n. 10 (1966).

Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to live and work together in a free society not completely dominated by governmental regulation necessarily encompass far more than politics in a narrow sense. "The guarantees for speech and press are not the preserve of political expression or comment upon public affairs." Time, Inc. v. Hill, 385 U.S. 374, 388 (1967).

Freedom 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). Although the limitations upon civil libel actions, first held in New York Times to be required by the First Amendment, were applied in that case in the context of defamatory falsehoods about the official conduct of a public official, later decisions have disclosed the artificiality, in terms of the public's interest, of a simple distinction between "public" and "private" individuals or institutions:

Increasingly in this country, the distinctions between governmental and private sectors are blurred. . . . In many situations, policy determinations [p42] which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions. . . .

. . . Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of "public officials."

Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967) (Warren, C.J., concurring in result).

Moreover, the constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government.

[T]he Founders . . . felt that a free press would advance "truth, science, morality, and arts in general," as well as responsible government.

Id. at 147 (opinion of HARLAN, J.). Comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of public interest. In Time, Inc. v. Hill, supra, we had "no doubt that the . . . opening of a new play linked to an actual incident, is a matter of public interest," 385 U.S. at 388, which was entitled to constitutional protection. Butts held that an alleged "fix" of a college football game was a public issue. Associated Press v. Walker, 388 U.S. 130 (1967), a companion case to Butts, established that the public had a similar interest in the events and personalities involved in federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University of Mississippi. Thus, these cases underscore the vitality, as [p43] well as the scope, of the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. at 270-271 (emphasis added).

If a matter is a subject of public or general interest, it cannot 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. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. [n11] The present case illustrates the point. The community has a vital interest in the proper enforcement of its criminal laws, particularly in an area such as obscenity, where a number of highly important values are potentially in conflict: the public has an interest both in seeing that the criminal law is adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. Whether the person involved is a famous large-scale magazine distributor or a "private" businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, [p44] by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous. [n12]

Our Brother WHITE agrees that the protection afforded by the First Amendment depends upon whether the issue involved in the publication is an issue of public or general concern. He would, however, confine our holding to the situation raised by the facts in this case, that is, limit it to issues involving "official actions of public servants." In our view, that might be misleading. It is clear that there has emerged from our cases decided since New York Times the concept that the First Amendment's impact upon state libel laws derives not so much from whether the plaintiff is a "public official," "public figure," or "private individual," as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest. See T. Emerson, The System of Freedom of Expression 531-532, 540 (1970). In that circumstance, we think the time has come forthrightly to announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern, albeit leaving the [p45] delineation of the reach of that term to future cases. As our Brother WHITE observes, that is not a problem in this case, since police arrest of a person for distributing allegedly obscene magazines clearly constitutes an issue of public or general interest. [n13]

V

We turn then to the question to be decided. Petitioner's argument that the Constitution should be held to require that the private individual prove only that the publisher failed to exercise "reasonable care" in publishing defamatory falsehoods proceeds along two lines. First, he argues that the private individual, unlike the public figure, does not have access to the media to counter the defamatory material, and that the private individual, unlike the public figure, has not assumed the risk of defamation by thrusting himself into the public arena. Second, petitioner focuses on the important values served by the law of defamation in preventing and redressing attacks upon reputation.

We have recognized the force of petitioner's arguments, Time, Inc. v. Hill, supra, at 391, and we adhere to the caution expressed in that case against "blind application" of the New York Times standard. Id. at 390. Analysis of the particular factors involved, however, convinces us that petitioner's arguments cannot be reconciled with the purposes of the First Amendment, with our cases, and with the traditional doctrines of libel law itself. Drawing a distinction between "public" [p46] and "private" figures makes no sense in terms of the First Amendment guarantees. [n14] The New York Times standard was applied to libel of a public official or public figure to give effect to the 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, see Rosenblatt v. Baer, supra, 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 undefined class of "public figures" involved in matters of public concern will be better able to respond [p47] through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction. Furthermore, in First Amendment terms, the cure seems far worse than the disease. If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the direction of ensuring their ability to respond, rather than in stifling public discussion of matters of public concern. [n15]

Further reflection over the years since New York Times was decided persuades us that the view of the "public official" or "public figure" as assuming the risk of defamation by voluntarily thrusting himself into the public eye bears little relationship either to the values protected by the First Amendment or to the nature of our society. We have recognized that "[e]xposure of the self to others in varying degrees is a concomitant of life in a civilized community." Time, Inc. v. Hill, [p48] supra at 388. Voluntarily 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 n. 12, supra; Griswold v. Connecticut, 381 U.S. 479 (1965). [n16] 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.

General references to the values protected by the law of libel conceal important distinctions. Traditional arguments suggest that libel law protects two separate interests of the individual: first, his desire to preserve a certain privacy around his personality from unwarranted intrusion, and, second, a desire to preserve his public good name and reputation. See Rosenblatt v. Baer, 383 U.S. at 92 (STEWART, J., concurring). The individual's interest in privacy -- in preventing unwarranted intrusion upon the private aspects of his life -- is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern. [n17] In [p49] the present case, however, petitioner's business reputation is involved, and thus the relevant interests protected by state libel law are petitioner's public reputation and good name.

These are important interests. Consonant with the libel laws of most of the States, however, Pennsylvania's libel law subordinates these interests of the individual in a number of circumstances. Thus, high government officials are immune from liability -- absolutely privileged -- even if they publish defamatory material from an improper motive, with actual malice, and with knowledge of its falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958). This absolute privilege attaches to judges, attorneys at law in connection with a judicial proceeding, parties and witnesses to judicial proceedings, Congressmen and state legislators, and high national and state executive officials. Restatement of Torts §§ 585-592. Moreover, a conditional privilege allows newspapers to report the false defamatory material originally published under the absolute privileges listed above, if done accurately. Sciandra v. Linett, 409 Pa. 595, 187 A.2d 586 (1963).

Even without the presence of a specific constitutional command, therefore, Pennsylvania libel law recognizes that society's interest in protecting individual reputation [p50] often yields to other important social goals. In this case, the vital needs of freedom of the press and freedom of speech persuade us that allowing private citizens to obtain damage judgments on the basis of a jury determination that a publisher probably failed to use reasonable care would not provide adequate "breathing space" for these great freedoms. Reasonable care is an "elusive standard" that

would place on the press 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.

Time, Inc. v. Hill, 385 U.S. at 389. Fear of guessing wrong must inevitably cause self-censorship, and thus create the danger that the legitimate utterance will be deterred. Cf. Speer v. Randall, 357 U.S. 513, 526 (1958).

Moreover, we ordinarily decide civil litigation by the preponderance of the evidence. Indeed, the judge instructed the jury to decide the present case by that standard. In the normal civil suit where this 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 -- the three-quarter million dollar jury verdict in this case could rest on such an error -- but the 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. These dangers for freedom of speech and press led us to reject the "reasonable man" standard of liability as "simply inconsistent" with our national commitment under the First Amendment when sought to be applied to the [p51] conduct of a political campaign. Monitor Patriot Co. v. Roy, 401 U.S. 265, 276 (1971). The same considerations lead us to reject that standard here.

We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799, James Madison made the point in quoting (and adopting) John Marshall's answer to Talleyrand's complaints about American newspapers, American State Papers, 2 Foreign Relations 196 (U.S. Cong. 1832):

"Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess, that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America."

6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed.1906) (emphasis in original).

This Court has recognized this imperative:

[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment [p52] protect some erroneous publications as well as true ones.

St. Amant v. Thompson, 390 U.S. 727, 732 (1968). We thus hold that a libel action, as here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. [n18] Calculated falsehood, of course, falls outside "the fruitful exercise of the right of free speech." Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

Our Brothers HARLAN and MARSHALL reject the "knowing or reckless falsehood standard" in favor of a test that would require, at least, that the person defamed establish that the publisher negligently failed to ascertain the truth of his story; they would also limit any recovery to "actual" damages. For the reasons we have stated, the negligence standard gives insufficient breathing space to First Amendment values. Limiting recovery to actual damages has the same defects. In the first instance, that standard, too, leaves the First Amendment insufficient elbow room within which to function. It is not simply the possibility of a judgment for damages that results in self-censorship. The very possibility of having to engage in litigation, an expensive and protracted process, [p53] is threat enough to cause discussion and debate to "steer far wider of the unlawful zone," thereby keeping protected discussion from public cognizance. Speiser v. Randall, 357 U.S. at 526. Cf. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 334-339 (1971). Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be "actual" or "punitive." The real thrust of Brothers HARLAN's and MARSHALL's position, however, is their assertion that their proposal will not "constitutionalize" the factfinding process. But this clearly is not the way their test would work in practice. Their approach means only that factfinding will shift from an inquiry into whether the defamatory statements were knowingly or recklessly uttered to the inquiry whether they were negligently uttered, and if so, to an inquiry whether plaintiff suffered "actual" damages. This latter inquiry will involve judges even more deeply in factfinding. Would the mere announcement by a state legislature that embarrassment and pain and suffering are measurable actual losses mean that such damages may be awarded in libel actions? No matter how the problem is approached, this Court would ultimately have to fashion constitutional definitions of "negligence" and of "actual damages."

Aside from these particularized considerations, we have repeatedly recognized that courts may not avoid an excursion into factfinding in this area simply because it is time-consuming or difficult. We stated in Pennekamp v. Florida, 328 U.S. 331, 335 (1946), that:

The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances [p54] under which they were made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.

(Footnote omitted.) Clearly, then, this Court has an "obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments," and, in doing so, "this Court cannot avoid making an independent constitutional judgment on the facts of the case." Jacobellis v. Ohio, 378 U.S. 184, 190 (1964). The simple fact is that First Amendment questions of "constitutional fact" compel this Court's de novo review. See Edwards v. South Carolina, 372 U.S. 229, 235 (1963); Blackburn v. Alabama, 361 U.S. 199, 205 n. 5 (1960).

VI

Petitioner argues that the instructions on punitive damages either cured or rendered harmless the instructions permitting an award of general damages based on a finding of failure of WIP to exercise reasonable care. We have doubts of the merits of the premise, [n19] but even [p55] assuming that instructions were given satisfying the standard of knowing or reckless falsity, the evidence was insufficient to sustain an award for that petitioner under that standard. In these cases, our

duty is not limited to the elaboration of constitutional principles; we must also, in proper cases, review the evidence to make certain that those principles have been constitutionally applied.

New York Times Co. v. Sullivan, 376 U.S. at 285. Our independent analysis of the record leads us to agree with the Court of Appeals that none of the proofs, considered either singly or cumulatively, satisfies the constitutional standard with the convincing clarity necessary to raise a jury question whether the defamatory falsehoods were broadcast with knowledge that they were false or with reckless disregard of whether they were false or not.

The evidence most strongly supporting petitioner is that concerning his visit to WIP's studio where a part-time newscaster hung up the telephone when petitioner disputed the newscaster's statement that the District Attorney had characterized petitioner's magazines as obscene. This contact occurred, however, after all but one of the second series of broadcasts had been aired. The incident has no probative value insofar as it bears on petitioner's case as to the first series of broadcasts. That portion of petitioner's case was based upon the omission from the first two broadcasts at 6 and 6:30 p.m. on October 4 of the word "alleged" preceding a characterization of the magazines distributed by petitioner. But that omission was corrected with the 8 p.m. broadcast, and was not repeated in the five broadcasts that followed. And we agree with the analysis of the Court of Appeals that led that court, and leads us, to conclude that the episode failed to provide evidence satisfying the New York Times standard insofar as it bore on petitioner's [p56] case based upon the broadcasts on and after October 21 concerning petitioner's lawsuit:

Only one broadcast took place after this conversation. It is attacked on the ground that it contains an inaccurate statement concerning plaintiff's injunction action in that it Stated that the district attorney considered plaintiff's publications to be smut and immoral literature. The transcript of the testimony shows that plaintiff's own attorney, when questioning defendant' representative concerning the allegedly defamatory portion of the last broadcast, said that he was not questioning its "accuracy." Furthermore, his examination of the same witness brought out that defendant's representative confirmed the story with the judge involved before the broadcast was made. We think that the episode described failed to provide evidence of actual malice with the requisite convincing clarity to create a jury issue under federal standards.

415 F.2d at 897.

Petitioner argues finally that WIP's failure to communicate with him to learn his side of the case and to obtain a copy of the magazine for examination, sufficed to support a verdict under the New York Times standard. But our

cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact, entertained serious doubts as to the truth of his publication.

St. Amant v. Thompson, 390 U.S. at 731. Respondent here relied on information supplied by police officials. Following petitioner's complaint about the accuracy of the broadcasts, WIP checked its last report with the judge who presided in the case. While we may assume that the District Court correctly held to be defamatory [p57] respondent's characterizations of petitioner's business as "the smut literature racket," and of those engaged in it as "girlie-book peddlers," there is no evidence in the record to support a conclusion that respondent "in fact entertained serious doubts as to the truth" of its reports.

Affirmed.

MR. JUSTICE Douglas took no part in the consideration or decision of this case.

1. See, e.g., Associated Press v. Walker, 388 U.S. 130 (1967) (retired Army general against a wire service); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (former football coach against publisher of magazine); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967) (court clerk against newspaper); Greenbelt Publishing Assn. v. Bresler, 398 U.S. 6 (1970) (state representative and real estate developer against publisher of newspaper); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971) (defeated candidate for tax assessor against publisher of newspaper); Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) (candidate for United States Senate against publisher of newspaper); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police official against publisher of magazine). However, Rosenblatt v. Baer, 383 U.S. 75 (1966), involved an action against a newspaper columnist by a former county recreation area supervisor; St. Amant v. Thompson, 390 U.S. 727 (1968), involved an action of a deputy sheriff against a defeated candidate for the United States Senate; and Linn v. Plant Guard Workers, 383 U.S. 53 (1966), involved an action by an official of an employer against a labor union.

Garrison v. Louisiana, 379 U.S. 64 (1964), held that the New York Times standard measured also the constitutional restriction upon state power to impose criminal sanctions for criticism of the official conduct of public officials. The Times standard of proof has also been required to support the dismissal of a public school teacher based on false statements made by the teacher in discussing issues of public importance. Pickering v. Board of Education, 391 U.S. 563 (1968). The same test was applied to suits for invasion of privacy based on false statements where, again, a matter of public interest was involved. Time, Inc. v. Hill, 385 U.S. 374 (1967). The opinion in that case expressly reserved the question presented here -- whether the test applied in a libel action brought by a private individual. Id. at 391.

2. This term is from Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev.193, 214 (1890). Our discussion of matters of "public or general interest" appears in Part IV, infra of this opinion.

3. Petitioner does not question that the First Amendment guarantees of freedom of speech and freedom of the press apply to respondent's newscasts.

4. At trial, Captain Ferguson testified that his definition of obscenity was "anytime the private parts is showing of the female or the private parts is shown of males."

5. Several more newsstand operators were arrested between October 1 and October 4.

6. The record neither confirms nor refutes petitioner's contention that his arrest was fortuitous. Nor does the record reflect whether or not petitioner's magazines were the subject either of the original citizens' complaints or of the initial police purchases.

7. The complaint named as defendants the publishers of two newspapers, a television station, the city of Philadelphia, and the district attorney, but not respondent WIP. The plaintiffs were petitioner, the partnership of himself and his wife which carried on the business, and the publisher of the nudist magazines that he distributed.

8. The text of the final broadcast read as follows:

U.S. District Judge John Lord told WIP News just before air time that it may be another week before he will be able to render a decision as to whether he has jurisdiction in the case of two publishers and a distributor who wish to restrain the D.A.'s office, the police chief, a TV station and the Bulletin for either making alleged raids of their publications, considered smut and immoral literature by the defendants named, or publicizing that they are in that category. Judge Lord then will be in a position to rule on injunction proceedings asked by the publishers and distributor claiming the loss of business in their operations.

9. The reference here, of course, is to common law "malice," not to the constitutional standard of New York Times Co. v. Sullivan, supra. See n. 18, infra.

10. Pa.Stat.Ann., Tit. 12, § 1584a (Supp. 1971) provides:

(1) In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:

(a) The defamatory character of the communication;

(b) Its publication by the defendant;

(c) Its application to the plaintiff;

(d) The recipient's understanding of its defamatory meaning;

(e) The recipient's understanding of it as intended to be applied to the plaintiff;

(f) Special harm resulting to the plaintiff from its publication;

(g) Abuse of a conditionally privileged occasion.

(2) In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:

(a) The truth of the defamatory communication;

(b) The privileged character of the occasion on which it was published;

(c) The character of the subject matter of defamatory comment as of public concern.

See Restatement of Torts § 613.

11. For example, the public's interest in the provocative speech that was made during the tense episode on the campus of the University of Mississippi would certainly have been the same in Associated Press v. Walker, n. 1, supra, if the speaker had been an anonymous student and not a well known retired Army general. Walker also illustrates another anomaly of focusing analysis on the public "figure" or public "official" status of the individual involved. General Walker's fame stemmed from events completely unconnected with the episode in Mississippi. It seems particularly unsatisfactory to determine the extent of First Amendment protection on the basis of factors completely unrelated to the newsworthy events being reported. See also Greenbelt Publishing Assn. v. Bresler, 398 U.S. 6 (1970).

12. We are not to be understood as implying that no area of a person's activities falls outside the area of public or general interest. We expressly leave open the question of what constitutional standard of proof, if any, controls the enforcement of state libel laws for defamatory falsehoods published or broadcast by news media about a person's activities not within the area of public or general interest.

We also intimate no view on the extent of constitutional protection, if any, for purely commercial communications made in the course of business. See Valentine v. Chrestenen, 316 U.S. 52 (1942). Compare Breard v. Alexandria, 341 U.S. 622 (1951), with Martin v. Struthers, 319 U.S. 141 (1943). But see New York Times Co. v. Sullivan, 376 U.S. at 265-266; Linn v. Plant Guard Workers, 383 U.S. 53 (1966).

13. Our Brother WHITE states in his opinion:

[T]he First Amendment gives . . . a privilege to report . . . the official actions of public servants in full detail, with no requirement that . . . the privacy of an individual involved in . . . the official action be spared from public view.

Post at 62. This seems very broad. It implies a privilege to report, for example, such confidential records as those of juvenile court proceedings.

14. See United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 404 F.2d 706 (CA9 1968), cert. denied, 394 U.S. 921 (1969); Time, Inc. v. McLaney, 406 F.2d 565 (CA5), cert. denied, 395 U.S. 922 (1969); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 861 n. 4, and cases cited therein (CA5 1970). See generally Cohen, A New Niche for the Fault Principle: A Forthcoming Newsworthiness Privilege in Libel Cases?, 18 U.C.L.A.L.Rev. 371 (1970); Kalven, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup.Ct.Rev. 267; Note, Public Official and Actual Malice Standards: The Evolution of New York Times Co. v. Sullivan, 56 Iowa L.Rev. 393, 398-400 (1970); Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L.J. 642 (1966).

15. Some States have adopted retraction statutes or right-of-reply statutes. See Donnelly, The Right of Reply: An Alternative to an Action for Libel, 34 Va.L.Rev. 867 (1948); Note, Vindication of the Reputation of a Public Official, 80 Harv.L.Rev. 1730 (1967). Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).

One writer, in arguing that the First Amendment itself should be read to guarantee a right of access to the media not limited to a right to respond to defamatory falsehoods, has suggested several ways the law might encourage public discussion. Barron, Access to the Press -- A New First Amendment Right, 80 Harv.L.Rev. 1641, 1666-1678 (1967). It is important to recognize that the private individual often desires press exposure either for himself, his ideas, or his causes. Constitutional adjudication must take into account the individual's interest in access to the press, as well as the individual's interest in preserving his reputation, even though libel actions, by their nature, encourage a narrow view of the individual's interest, since they focus only on situations where the individual has been harmed by undesired press attention. A constitutional rule that deters the press from covering the ideas or activities of the private individual thus conceives the individual's interest too narrowly.

16. This is not the less true because the area of public concern in the cases of candidates for public office and of elected public officials is broad. See Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).

17. Our Brothers HARLAN and MARSHALL would not limit the application of the First Amendment to private libels involving issues of general or public interest. They would hold that the Amendment covers all private libels, at least where state law permits the defense of truth. The Court has not yet had occasion to consider the impact of the First Amendment on the application of state libel laws to libels where no issue of general or public interest is involved. See 403 U.S. 29 n1"]n. 1, supra. However, n. 1, supra. However, Griswold v. Connecticut, 381 U.S. 479 (1965), recognized a constitutional right to privacy, and at least one commentator has discussed the relation of that right to the First Amendment. Emerson, supra, at 544-562. Since all agree that this case involves an issue of public or general interest, we have no occasion to discuss that relationship. See n. 12, supra. We do not, however, share the doubts of our Brothers HARLAN and MARSHALL that courts would be unable to identify interests in privacy and dignity. The task may be difficult, but not more so than other tasks in this field.

18. At oral argument, petitioner argued that

the little man can't show actual malice. How can George Rosenbloom show that there was actual malice in Metromedia? They never heard of him before.

Tr. of Oral Arg., Dec. 8, 1970, p. 39. But ill will toward the plaintiff, or bad motives, are not elements of the New York Times standard. That standard requires only that the plaintiff prove knowing or reckless falsity. That burden, and no more, is the plaintiff's whether "public official," "public figure," or "little man." It may be that jury instructions that are couched only in terms of knowing or reckless falsity, and omit reference to "actual malice," would further a proper application of the New York Times standard to the evidence.

19. The instructions authorized an award of punitive damages upon a finding that a falsehood

arose from a bad motive or . . . that it was published with reckless indifference to the truth . . . punitive damages are awarded as a deterrent from future conduct of the same sort.

App. 333a. The summation of petitioner's counsel conceded that respondent harbored no ill-will toward petitioner, but, following the suggestion of the instructions that punitive damages are "'smart' money," App. 313a, argued that they should be assessed because

[respondent] must be careful the way they impart news information and you can punish them if they weren't because you could say that was malicious.


Ibid. This was an obvious invitation based on the instructions to award punitive damages for carelessness. Thus, the jury was allowed, and even encouraged, to find malice and award punitive damages merely on the basis of negligence and bad motive.
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