Constitutionally
Restricted Speech:
An
Analytical History of Libel and the U.S. Supreme Court
Eric C. Husby
Constitutional Law
Dr. Kellstedt
1 December, 1998
Libel law in the United States as it applies to common law
is founded in principles and court decisions which predate the U.S.
Constitution and which draw heavily upon the legal tradition of England and
Blackstonian doctrine. This area of the
law is a relatively recent phenomenon, however, in terms of constitutional law
and the U.S. Supreme Court.
Nevertheless, it is a profoundly important area of constitutional law
today. As historian Norman L. Rosenberg
states: “[L]ibel law should be seen as
a legal manifestation of fundamental battles over the nature of social and
political power relationships in United States history.”[1]
The focus
of this study is not upon the voluminous history of common law associated with
libel, but concentrates on the Supreme Court’s decisions in the area of
libel. The paper presents a brief
history of libel law prior to the Supreme Court era, an extensive account of
Supreme Court libel decisions, an assessment of the court’s rulings, and a
prognostication of the future of constitutional libel law.
During the
Congressional term of 1798, the federalist-dominated Congress passed the
Sedition Act. This partisan legislation
was an attempt to silence
Jeffersonian views.
It “made it a crime to utter or disseminate ‘any false, scandalous and
malicious’ comments about the government, members of Congress, or the President
‘with the intent to defame’ them or to excite against them ‘the hatred of the
good people of the United States.’”[2] Law Professor Anthony Lewis contends that
although Republicans argued that the act was contrary to the First Amendment
speech and press clauses, Federalists won passage of the act by relying on
Blackstone and arguing that “the First Amendment’s ‘freedom of the press’ meant
only freedom from prior restraints.”[3] Surprisingly, this highly controversial
piece of legislation was never argued before the Supreme Court because the act
expired before a case could reach it.
However, six Supreme Court justices had presided over Sedition Act
trials without expressing any constitutional reservations. Although no constitutional law arose from
this act, it has been used in deciding libel cases before the Supreme Court in
the twentieth century.
The
nineteenth century saw few freedom of speech and press issues and no
significant libel issues come before the Supreme Court. A major reason for this was an 1833 opinion[4]
by Chief Justice Marshall that the provisions of the Bill of Rights applied
only to the federal government and not to the several states. As there were no federal laws restricting
the freedom of speech or of the press, the issue was not justicable by the
Supreme Court. It was not until the adoption
of the Fourteenth Amendment in 1868 that a reconsideration of the Barron decision was required.
A different
view of free speech and libel was developing in the early twentieth
century. Lewis argues that this was
evidenced by a concurrence with the arguments of Henry Schofield by many legal
scholars.[5] Schofield, in his 1914 essay, Freedom of the Press in the United States, made
a distinction between the discussion of public or political matters, which he
said should be protected under the First Amendment, and private matters, which
he said should not be protected. It was
still another decade before the Supreme Court began to reflect these new
views. Under the “selective
incorporation” view, the freedom of speech was not incorporated until 1925 in Gitlow v. New York under the Due Process
Clause and the freedom of the press remained unincorporated until Near v. Minnesota (1931).
The Near
v. Minnesota case presented an excellent opportunity for the court to
examine the constitutionality of libel laws.
Jay M. Near’s newspaper was closed down under the Minnesota Public
Nuisance Law. The unanimous decision of
the Minnesota Supreme Court was that:
Our constitution was never intended to protect malice, scandal and defamation when untrue or published with bad motives or without justifiable ends. It is a shield for the honest, careful and conscientious press. Liberty of the press does not mean that an evil-minded person may publish just anything any more than the constitutional right of assembly authorizes and legalizes unlawful assemblies and riots.
On appeal to the Supreme Court, however, the justices chose not to deal with the issue of libel, but to decide the case on the basis that prior restraints are suspect under the First Amendment .
THE SUPREME COURT RULES
Contrary to popular opinion, the 1964 New York Times Company v. Sullivan case was not the Supreme Court’s first libel decision case.[6] In the case of Chaplinsky v. New Hampshire, the court recognized that there are certain types of free speech which are not protected by the First Amendment:
Allowing the broadest scope to the language and purpose of
the Fourteenth Amendment, it is well understood that the right of free speech
is not absolute at all times and under all circumstances. There are certain
well-defined and narrowly limited classes of speech, the prevention and punishment
of which has never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or
'fighting' words-those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace.
It has been well observed that such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.
New
York Times Company v. Sullivan 376 U.S. 254 (1964)
FACTS
OF THE CASE
This case stemmed from an incident on March 29, 1960 when
the New York Times ran a full-page ad
seeking support for the campaign by Dr. Martin Luther King, Jr. to end racial
segregation in the South and win blacks the right to vote. Although the advertisement did not mention
specific names, L. B. Sullivan, a city public affairs commissioner of
Montgomery, Alabama claimed that he was libeled by its charges that Southern
officials had brutally suppressed peaceful protests. The ad had criticized treatment of black college student
protesters by the Montgomery police. It
was shown to have two minor factual errors.
Sullivan sued the Times and
four black Alabama ministers listed as signers of the ad for $500,000, and an
all-white jury awarded him the full amount.
The governor of Alabama and other officials also sued, bringing the
libel claims to a total of $3 million.
The state supreme court upheld the judgment of the trial court, and the Times filed a petition of certiorari
with the U.S. Supreme Court.
THE LAW
The decision was based on an interpretation of the free
speech and freedom of the press clauses of the First Amendment and Section 1 of
the Fourteenth Amendment.
LEGAL QUESTIONS
This case, in the court’s eyes, hinged upon one major
question: Does Alabama libel law, “as applied to an action brought by a public
official against critics of his official conduct, abridge the freedom of speech
and of the press that is guaranteed by the First and Fourteenth Amendments . .
. ”?
OPINION OF THE COURT
The court rendered a unanimous decision, and the opinion was
authored by Justice Brennan. He found
that under Alabama law, once there has been an establishment of “libel per se”
the only defense of the defendant is to convince the jury
that all the libelous statements are completely true. Unless the defendant can do so, general
damages can be awarded “without proof of pecuniary injury.” Since there is a national commitment to
uninhibited debate on public issues which may include “vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials,” this
law, by placing the burden of truth on the speaker, hampers the rights of
individuals to participate in uninhibited debate. “Erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms
of expression are to have the breathing space that they need to survive.” Erroneous statements about public officials
are thus constitutionally protected. An
injury resulting from an erroneous statement does not cause the statement to
lose its constitutional protection.
This can be drawn as a lesson from the controversy over the 1798
Sedition Act. If a Sate cannot bar
something with a criminal law, it cannot accomplish the same result with a
civil law. The fear of damage awards
may be more inhibiting than fear of criminal prosecution and these virtually
unlimited pecuniary awards leads to “self-censorship.” Public officials should be prohibited from
recovering damages for falsehoods related to official conduct unless it can be
proved that “actual malice” or “reckless disregard” of the truth were
involved. The proof presented to show
actual malice in this case is lacking and the case is reversed and remanded.
CONCURRING OPINIONS
Justice Black wrote a concurring opinion, in which he agrees
with the judgment, but votes to reverse exclusively on the ground that the Times had an “unconditional
constitutional right” to voice criticisms of public officials. The large verdict proves that state libel
laws endanger the presses ability to publish unpopular views.
In a separate opinion Justice Goldberg concurred with the
judgment, but also found that the First and Fourteenth Amendments offer greater
coverage of free speech. The right to
speak one’s mind concerning public officials and affairs shouldn’t be limited
by a question of the motivation for what was said. Public debate will be constrained if a jury can award damages
after finding that a statement was maliciously motivated. “Counterargument and education” would still
be available to public officials to refute false statements. The Constitution grants “an unconditional
freedom to criticize official conduct.”
EVALUATION
This case, as stated within the opening of the majority
opinion and in Goldberg’s concurrence “determined for the first time” on a
“clean slate” the constitutional protections for libelous speech. Lewis writes that “Those who drafted and
ratified the First Amendment almost certainly did not have civil libel suits in
mind.”[8] The decision certainly was a drastic
departure from the court’s silence on libel for one hundred seventy years. In making this drastic departure, it used
logical reasoning well, as attested to by the unanimous decision which
resulted. While radical, the court did
not take the decision as far as it could have or as far as Goldberg would have
liked. It stopped short of eliminating
all libel suits by adopting its own version of a qualified privilege test.[9] In Rosenberg’s opinion, Brennan “justified
this new national standard by invoking a general constitutional theory of free
speech that . . . not only ignored the clear-and-present-danger rationale . . .
, but all other traditional First Amendment tests, such as those the Court had
recently used in obscenity cases.”[10] Instead Brennan went back to the Sedition
Act of 1798 saying that the convolution of this expired act offered a clear
view of the First Amendment. Legal
scholar Harry Kalven praised the court for abandoning past First Amendment
formulas and predicted that the rationale of Sullivan would be extended to other types of libel cases.[11] The Sullivan
decision is a prime example of liberal jurisprudence. The problem involved presented “a textbook example,” argues
Rosenberg, “of illiberal ‘blockages’ in the political and intellectual
marketplaces.” The Court used the
theory that “once freed to operate properly, the process of unblocked
discussion would help people of good will discover the best solution to the
racial problems besetting the nation.”[12] Sullivan
offered the Court a chance to express several theories that were gaining
acceptance that had just been waiting for the right case to come along.
The court did not have long to wait before it was presented
with its next important libel case.
Curtis Publishing Company v. Butts, 388 U.S. 130
(1967)
The Saturday
Evening Post published a
sensational article charging that football games had been rigged in the
Southeastern Conference of college sports.
It said that Wally Butts, the athletic director of the University of
Georgia, had given the Georgia team’s secret plans to the Alabama coach,
Bryant, before the game. The story was
based on the account of an Atlanta businessman who was trying to make a
telephone call when, he said, he found himself connected to a conspiratorial
conversation between Butts and Bryant.
Butts sued Curtis Publishing for libel.
He was awarded over $3 million in compensatory and punitive damages,
which was later reduced to $460,000 by a judge. The case was brought before the Court of Appeals and then the
Supreme Court. The Supreme Court
attached a Texas libel case (Associated
Press v. Walker) to it which also involved a prominent public figure who
was not a public official. Walker was a
private citizen at the time he was libeled, but he had previously been in
command of military troops and was also a political activist. He brought suit against the Associated Press
for a story it ran, stating that Walker had led a riot on the University of
Mississippi campus in 1962. The AP
appealed the damages Walker was awarded.
LEGAL QUESTIONS
The major legal question of the case was: Should a “public figure” have to meet the
same test of knowing or reckless falsehood as a public official?
OPINIONS OF THE COURT
The court was very divided over the case, Harlan announced the judgments of the Court and delivered what was a minority opinion in which Clark, Stewart, Fortas joined. The discussion of items of public interest is a protected activity. This does not mean, however, that “one may in all respects carry on that activity exempt from sanctions designed to safeguard the legitimate interests of others.” Both Butts and Walker can be labeled “public figures” under ordinary tort rules. Public figures should not be held to the same rigid standards as public officials, but should be able to recover libel damages on proof that there had been “an extreme departure” from normal
standards of investigation and reporting. Normal reporting precautions were ignored in the Butts case, and therefore the ruling is upheld. There is no evidence of reporting negligence in the Walker case, and the ruling is overturned.
Chief Justice Warren concurred in the result with Harlan in both Curtis and Walker. Curtis showed reckless disregard for the truth in publishing the article, while the AP did not. However, the views of public figures are often just as important as those of public officials and the power of the country is also partially in the hands of the private sector. Recently there has been “a rapid fusion of economic and political power, a merging of science, industry and government, and a high degree of interaction between the intellectual, governmental and business worlds . . . .” Thus, the adoption of different standards for public figures has no sound basis in law, logic or the First Amendment. Both public officials and figures must be held to the strict Sullivan test
Justices Black and Douglas concurred with the overturning of judgment in Walker on the same grounds as the Chief Justice. They still assert their opinion from Sullivan, however, stating that the First and Fourteenth Amendments were designed to grant wider freedoms of speech. The judgment on Butts should be overturned based also on their Sullivan opinion.
Justices Brennan and White concur with the judgment to overturn Walker. They dissent in the judgment to uphold Curtis, however. The Sullivan test should be applied to public figures as well as public officials on the same grounds as Warren’s argument. Curtis should be remanded for a new trial on the grounds that the jury did not apply the strict Sullivan reckless-disregard test to the case.
EVALUATION
This complex case had two results. First, both Curtis and Walker were overturned. This judgment has no real bearing on libel law, because the reasons for this overturning varied among the justices. The real importance of this case was not in the judgment, but in the 5-4 majority opinion that public figures are to be held to the same Sullivan reckless-disregard test as public officials in terms of their ability to collect libel judgments. This decision made the character of the plaintiff critical in a libel case.[13] If the person was an official or public figure, knowing or reckless falsehood had to be proved. If the person was determined to be a private citizen, state law applied, as the First Amendment could not be invoked.
Public Person v. Public Interest
Four years later, in 1971, Brennan’s minority opinion in the case of Rosenbloom v. Metromedia offered new way of determining whether a potentially libelous statement was protected by the First Amendment. He suggested that the protection of a libelous statement by the First Amendment should hinge on its subject matter, not on the type of person injured. If the subject was “of public or general interest” it was unconditionally protected by the Constitution. He reasoned that “If a matter is 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.” Brennan justified his departure from his previous ‘individual’ centered approach by writing that “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.”
Although Brennan’s reasoning appears logical, it was not destined to become the new paradigm. Justice Marshall’s dissent in the Rosenbloom case argued that the Brennan approach could make all libel plaintiffs meet the Sullivan test because “all human events are arguably within the area of ‘public or general concern.’” Marshall’s dissent demonstrated the court’s continued concern for sensitivity to reputation. In fact, Lewis argues that “The concern for reputation was no doubt one reason why Justice Brennan’s attempt to apply the Sullivan rule to all libel cases on matters of public conrern did not take hold.”[14] By 1974 it was definitively rejected by a majority of the Supreme Court in Gertz v. Welch.
Gertz
v. Robert Welch, Inc. 418 U.S. 323 (1974)
FACTS OF THE CASE
After a Chicago policeman, Richard Nuccio, was convicted of murder, the victim’s family retained Elmer Gertz to represent them in a civil suit against Nuccio. An article appearing in the respondent's magazine alleged that Nuccio's murder trial was part of a Communist conspiracy to discredit the local police, and it falsely stated that the petitioner had arranged Nuccio's "frame-up," among other false charges. Gertz was awarded $50,000 but the award was set aside by a federal Court of Appeals, and Gertz appealed to the Supreme Court.
LEGAL QUESTIONS
The court was confronted with the question of “whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements.” It also asked the question: ‘Who is a public figure?’
OPINION OF THE COURT
Justice Powell spoke for the five to four majority. There is no such entity as a false idea under the First Amendment. False statements of fact, conversely, have no constitutional value, although they are inevitable in public debate. “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” While this opinion is correct as applied to public figures, libel concerning private persons should be judged differently because of “the state interest in compensating injury to the reputation of private individuals.” Such suits could be judged on a case by case basis as to the balance between the needs of the press and the individual’s claim to wrongful injury. This approach would “lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable.” Thus, a broad rule is necessary. The media can assume that public officials and public figures have voluntarily placed themselves in positions in which they can be exposed to defamation. This assumption cannot be made for private individuals. Private individuals do not necessarily have the means available to them to redress falsehoods on their own, as do public figures, and they have not voluntarily relinquished interest in protecting their names. Thus private persons are more deserving of redress through the state court system:
The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public interest" and which do not.
This applies in cases in which the libelous comment is shown to make “substantial danger to reputation apparent." Additionally, in order to uphold the principles of the First Amendment, the private party plaintiff must “prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.” Punitive damages do not further the state interest in protecting the good names of private citizens, so awards under this lesser standard for private individuals should be restricted to compensatory damages.
Two types of public figures exist. First, there are those who have achieved such notoriety that they are public figures in all respects. There is a second and more common category of public figures who allow themselves to be drawn into the public eye on only specific issues. In terms of libel law the second category of person is only a public figure in the narrow realm of his or her public exposure. Under this rule the petitioner is not a public figure. Therefore the Sullivan standard is not applicable and the decision is reversed and remanded.
CONCURRING OPINION
Justice Blackmun concurred with the opinion, although he found some “illogic” in it. He concurs for two reasons. First, the decision grants more freedom to the press by removing “the specters of presumed and punitive damages.” Additionally, the court was badly split in Rosenbloom and it is necessary to come to a clearly defined majority opinion.
DISSENTING OPINIONS
Chief
Justice Burger:
“I would prefer to allow this area of law to continue to evolve as it has up to now with respect to private citizens rather than embark on a new doctrinal theory which has no jurisprudential ancestry.”
Justice
Douglas:
States
encroach upon free and open discussion when they sanction damages for
discussion of public matters through civil libel laws. The rules set forth by the majority opinion
leave much to chance as to how a jury will decide upon the issues of malice,
the reckless disregard for the truth, and negligence because decisions in these
areas are “virtually unreviewable.”
With this continued erosion of
First Amendment protections it may be the “reasonable man who refrains
from speaking.”
Justice
White:
This
decision goes against the principles of federalism and the mutual respect for
national and state governments. It does
so because it states that private libel plaintiffs must prove negligence. Constitutional intrusion into state libel
law should be limited to cases involving public officials and public
figures. Intrusion in these areas is
only acceptable because this libel falls under the category of seditious libel
which is outside the bounds of the police power of the state.
EVALUATION
Despite the
fact that this case was decided on the slimmest of majorities it has proved
over the years to be a true landmark case in Supreme Court libel law. Deckle McLean argues that this case had its
roots in the dissenting opinions of the Rosenbloom
case, in which Marshall argued that the issues approach adopted by Harlan
endangered private individuals, as almost anything could be argued to exist
within public concern.[15]
Consequently, the opinion of this case took the court away
from the issues approach and instituted a new ‘persons’ test based on whether
the libeled individual was a public figure or not. In addition to that, the court also redefined the meaning of
‘public figure.’ Thirdly, it required
private individuals to not only show malice, but also at least a ‘negligence’
on the part of the publisher. It is
with this third ruling that Lewis believes the court made its most significant
step: “In superimposing a new federal
requirement to prove that the mistake was negligent, the Supreme Court
significantly extended the process it had started in Times v. Sullivan.”[16] Common law libel in the past had been a tort
for which the wrongdoer had strict liability.
Private individuals now had to meet First Amendment tests as well. Though there were several dissents filed in
this case, Rosenberg argues that they are unimportant, as the majority opinion
was “unabashedly, an example of ad hoc balancing” which “did not even attempt
to find any principled First-Amendment anchor.”[17]
Much of the majority opinion remains intact as sound
constitutional law today. However, McLean’s study casts doubt on the full
acceptance of the ‘persons’ test by the courts
He notes that courts have had trouble with the question of “whether to
take seriously the voluntariness of a plaintiffs involvement in a public
issue.”[18] This has led some courts to de-emphasize volition as a factor in determining
the public or private status of the plaintiff.
This de-emphasis has reasserted “the importance of the ‘issues’ approach
to protecting press interests in libel cases.”[19]
The court’s next major decision returned to the issue of
“actual malice,” ruling on how it can be proved by a public official or figure.
Herbert v. Lando, 441 U.S. 153 (1979)
Colonel Anthony Herbert was a Vietnam veteran who said he
had been punished by the Army for trying to bring to its attention massacres by
American forces. CBS Television did a
program, The Selling of Colonel Herbert,
which was skeptical of his claims.
Herbert sued CBS and producer Barry Lando among others for libel. During the discovery portion of the trial,
Herbert’s lawyer requested to look at CBS files and segments of filmed interviews
that had been cut out. CBS resisted,
arguing that such
exploration of editorial decisions could lead to fear on the
part of editors. This could lead to the
self-censorship that the Sullivan decision
was supposed to prevent. The Court of
appeals upheld CBS’s privilege to deny access to editorial decisions. Herbert appealed to the Supreme Court.
LEGAL QUESTIONS
The major legal question raised by this case is whether a
plaintiff should be restricted from inquiring into the editorial processes of a
member of the press who the plaintiff alleges has circulated libelous
statements even though such a restriction would hamper the ability of the
plaintiff to produce the proof which is necessary for the legal action.
OPINION OF THE COURT
Justice White delivered the majority opinion. Since Herbert is a public figure, in order
to recover damages, he has to prove that there was either malicious intent or
reckless disregard for the truth. Prior
cases have not suggested that there are First Amendment restrictions on where
the public figure is allowed to collect evidence in order to prove one of
these. Courts in both past and recent
history have allowed the admittance of “any direct or indirect evidence
relevant to the state of mind of the defendant and necessary to defeat a
conditional privilege or enhance damages.”
An absolute privilege to the editorial process of the media has not been
granted in any prior rulings, and would place a burden upon the appellant which
was not intended by Sullivan. The construction of the First Amendment
should not be modified to give the press an evidentiary privilege. The judgment of the Court of Appeals is
reversed.
DISSENTING OPINIONS
Justice Brennan:
The court is right that there is not a privilege which
shields matters during discovery which may be important to the decision of the
case. However, the First Amendment does
protect “predecisonal communication among editors” unless the plaintiff can
demonstrate that the publication “contains defamatory falsehood.” The free-interchange of ideas are a part of
the editorial process which is protected under the freedom of speech of the
First Amendment as they are analogous to executive privilege in that they
constitute advisory opinions. The
absence of such a privilege could impair the accuracy of the media.
Justice Stewart:
This case falls under the precedent of New York Times v. Sullivan.
The standard laid out in this case for redress by public officials is
only concerned with what was actually published. What was not published is therefore irrelevant, and the editorial
process should not be open to the plaintiff in the discovery phase.
Justice Marshall:
The same restraints applied in Sullivan to the circumstances under which defamatory liability can
be claimed by a public official should be applied in this case to “mandate
restraints on roving discovery.” Open
discovery would lead to a suffocating of the discussion which is essential in
the editorial process. Discovery should
be limited from exploring the substance of “editorial conversation.
EVALUATION
This case is momentous in the realm of libel law in that it
stepped back from the New York Times v.
Sullivan decision’s commitment to ensuring that the press did not have
self-restraints imposed upon it from fear of libel suits. The opinion gave public officials and
figures wide latitude in the discovery process to seek evidence that the actual
malice provision had been exceeded.
This ruling became “a significant factor,” claims Lewis, “in the rising
cost of libel suits.”[20] For smaller defendants the process in such a
suit could be disastrous, as had spent between $3 and $4 million on the
case. The dissenting opinions which
claimed that the majority opinion would stifle the exchange of ideas in the
press appear to have some merit based on these figures.
Freedom of the Press v. Privacy
The Court began confronting cases which dealt with the balance between an individual’s right to privacy and the freedom of the press only a year after the landmark Gertz decision extended First Amendment limitations on libel suits brought by private individuals. In the 1975 case of Cox Broadcasting Corp. v. Cohn, the Court found that a civil damages award against a television station which broadcast the name of a rape-murder victim which the station had obtained from courthouse records was unconstitutional. It pointedly refused to answer even the question of "whether truthful publications may ever be subjected to civil or criminal liability" for invading "an area of privacy" defined by the State. Two years later, in Oklahoma Publishing Co. V. Oklahoma County District Court, the Court found unconstitutional a pretrial order which enjoined the media from publishing information concerning the identity of a boy who was connected with a juvenile proceeding which the media had been allowed to attend. Then in Smith v. Daily Mail Publishing Co. The Court found unconstitutional the indictment of two newspapers for publishing without written approval of a juvenile court the name of a youth offender. It was not until 1989 that the Court made a significant definitive ruling on this area of libel law.
Florida Star v. B.J.F., 491 U.S. 524 (1989)
Appellee B.J.F reported to the Sheriff’s Department that she
had been robbed and sexually assaulted.
The Department created a report on the incident which identified the
appellee by her full name. The report
was left in the press room and access to it was not restricted. A reporter-trainee from the Star saw the report and published a
brief story in the “Police Reports” section which included B.J.F.’s full
name. This was in violation of the
paper’s policy and of a Florida statute which makes it illegal
to publish the name of a sex crime victim. B.J.F. was awarded both compensatory and
punitive damages on a finding of negligence by the Star. The Star appealed to the Supreme Court.
LEGAL QUESTIONS
This case deals with the question of whether the publication
of accurate material has unbridgeable constitutional protection. The second question asked is whether Florida
meets the “state interest of a highest order” test.
OPINION OF THE COURT
The publication of lawfully obtained information containing
truthful material of public importance cannot be constitutionally punished
unless the restriction promotes a “state interest of the highest order.” Since only lawfully obtained information is
covered, the State retains means of safeguarding important interests. When the government has made certain
information publicly available, however, it is illogical that it should be able
to prosecute the press for its release.
Additionally, if the press can be punished for release of accurate
material, it would lead to a self-censorship unacceptable under the First
Amendment. In the current case, the Star received the information through
lawful means, it was an important public issue, and it was published
accurately.
The Appellee argues that the Florida statute meets the
standards of state interest since the law is designed to protect the privacy of
sex crime victims, secure the physical safety of the victim, and promote the
reporting of such cases. Although in a
proper case these interests could be shown to override those of the First
Amendment, that is not the fact in this case.
In this case the government supplied the information, and because of
this the appellant could only deem that dissemination of the information was
lawful. A Second problem is that the
negligence per se theory espoused by the statute is too sweeping, as negligence
follows merely from publication. Third,
the statute only limits the dissemination of this type of material through the
mass media, and thus does not meet the privacy interest that the Appellees
claim it does. The state must show that
legislation of this type is evenhanded, and this legislation is clearly
not. The press does not have automatic
constitutional protection for truthful material, but the protection can only be
abridged by a “narrowly tailored” state interest of the highest order. The judgment of the Court of Appeals is reversed.
DISSENTING OPINION
Justice White dissents with the Chief Justice and Justice
O’Connor. There is a difference between
the public release of information which has been disclosed in public
proceedings (Cox Broadcasting Corp. v.
Cohn), and the present case in which the information was meant to be
withheld from public release. The
report was made public in a room that contained signs warning that the names of
victims in sexual assault cases were not to be released. The argument of the Court that the negligence
per se aspect of the case placed the appellant under too strict a liability
standard does not apply, as the jury found “reckless indifference” on the part
of the Star. Additionally, the Florida statute does
evenhandedly cover all forms of mass communication, not deeming dissemination
by such means as gossip to endanger the rights of the victim. A line should be drawn which is high enough
to protect information about the victims of “horrible personal tragedy.”
EVALUATION
The impact of this case was to strengthen the freedom of the
press and allow it to print virtually any truthful material that is legally
obtained. The although the decision was
not based on any new principles, but rather on prior cases, the dissenting
opinion raises compelling arguments that the principles were improperly
applied. The argument that the
information was not in fact publicly released by the Sheriff’s Department, as
the majority opinion claims, appears to hold significant merit. It is also apparent that while the majority
opinion stresses that it is not giving the press complete free reign to publish
under the truthfully and legally attained argument, the strict requirements
placed on the legislature to overcome that freedom of the press result in a de
facto acceptance of virtual impunity.
The
recent case of Bachchan v. India Abroad
Publications Inc. (1992) deals with an area of libel law that has not been
touched before, and may thus possibly be refined in the future. This case granted U.S. corporations immunity
from libel lawsuits brought against them by foreign parties. This decision should be revisited, argues
Robert L. Spellman, because “when Americans seek, in foreign courts, to enforce
the tort judgments of American courts, they may find comity foreclosed based on
Bachchan.”[22]
Roy V.
Leeper believes that Supreme Court libel law must and will be changed, because
“Gertz left libel law in a very
unsettled state that remains to this day.”[23] Leeper argues that the “gross
irresponsibility standard which New York applies in libel cases should be
adopted by the Supreme Court in order to alleviate the problems inherent under
the current “actual malice” standard.
This standard would ascertain the following:
Whether sound journalistic practices were followed in
preparing the defamatory [material] . . ., whether normal procedures were
followed and whether an editor previewed the copy . , whether there was any
reason to doubt the accuracy of the source relied upon so as to produce a duty
to make further inquiry to verify the information . . ., and whether the truth
was easily accessible.[24]
Such a test, if adopted by the Supreme Court, would quantify
the somewhat vague “actual malice” standard, and allow for a more uniform
deciding of libel cases.
In the few decades that the Supreme Court has been rendering decisions on libel and First Amendment rights, it can be seen from the cases discussed that it has
developed a thorough, though not altogether uniform policy for dispatching such cases. There has been little broad consensus among members of the Court as to what principles should be applied to this area of the law, yet the decisions which were made during the 1970s survive today as the controlling law of the Court. For better or worse, the complex system of libel judgments that the Supreme Court has rendered appear to be fairly entrenched as the law of the land.
Annotated Bibliography
Hale, Dennis F. The
Federalization of Libel by Two Supreme Courts. Communications
and the Law. Sept. 1989.
This study is a comparative analysis of the decisions made
under the Warren and Burger Courts. It
consists of a quantitative study of number and types of decisions which these
two Courts handed down, and looks at how these decisions aided the
federalization process of libel.
Kalven, Harry
Jr. The New York Times Case’ A Note on
‘the Central Meaning’ of the
First Amendment. SCR. 1964.
Kalven’s essay examines the Sullivan case shortly after the decision was published. He argues that the Court correctly
interpreted the First Amendment with the case and predicts that the decision
will soon be expanded.
Leeper, Roy V. Refocusing
libel law: Gross irresponsibility and Naantaanbuu v.
Abernathy. Communications and the Law. Sept 1998.
This work analyzes the problems with the way the Supreme
Court has decided libel law cases. It
advocates and details the acceptance of New York’s ‘gross irresponsibility’
standard in viewing libel cases under the First Amendment.
Lewis, Anthony. Make No Law: The Sullivan Case and the
First Amendment. New
York: Random House, 1991.
This book examines the Sullivan
case on a detailed level, explaining the background, outcome and how the
decision impacted libel law. Included
is a thorough history of libel law cases.
McLean, Deckle. Public
Versus Private Figure Determination Under 'Gertz.'
Communications and the Law. Jun 1992.
The nature of how courts decide the difference between
public and private figures in libel suits is examined in view of the ‘persons’
test instituted under Gertz v. Robert
Welch, Inc. He claims that trial
courts are beginning to apply some of the ‘issues’ tests because of the
ambiguity of the ‘persons’ test.
Norman L.
Rosenberg. Protecting the Best Men:
An Interpretive History of the Law of
Libel. Chapel Hill: University of North Carolina
Press, 1986.
Libel is traced from its very roots through the present
day. Both common law and constitutional
law libel cases are examined. The study
examines many Supreme Court decisions in-depth and critiques the opinions in
relation to other libel decisions by the court.
Sneed, Don, Whitney
S. Mandel, Harry W. Stonecipher. Constitution Provides Limited
Libel
Protection to Broadcast Commentators. Communications
and the Law.
Dec 1991.
The article examines the 1984 U.S. Court of Appeals case of Ollman v. Evans, focusing on the four
pronged test that it uses to distinguish between fact and opinion in libel
cases. The authors argue that a uniform
standard is needed because of the confusion in the lower courts surrounding the
issue.
Spellman, Robert
L. Spitting
in the Queen's soup. Communications
and the Law. Dec
1994.
In this article, Spellman examines the decision of Bachchan v. India Abroad Publications Inc. as
it pertains to the ability of U.S. citizens to obtain libel judgments against
foreign countries. He argues that the
decision in this case has hampered that prospect.
[1] Norman L.
Rosenberg. Protecting the Best Men:
An Interpretive History of the Law of Libel. (Chapel
Hill:
University of North Carolina Press, 1986)
265.
[2] Ibid., 81-82.
[3] Anthony
Lewis. Make No Law: The Sullivan
Case and the First Amendment. (New York: Random House, 1991)
60.
[4] Barron v. Baltimore 32 U.S. 243
[5] Lewis, 69.
[6] F. Dennis
Hale. The Federalization of Libel by Two Supreme Courts. Communications and the Law. Sept. 89, 21.
[7] Ibid., 21.
[8] Lewis, 153.
[9] Rosenberg,
244.
[10] Ibid., 245.
[11] Harry Kalven,
Jr. The
New York Times Case’ A Note on ‘the Central Meaning’ of the First
Amendment.
SCR.1964. 221.
[12] Rosenberg,
247.
[13] Lewis, 191.
[14] Ibid., 193.
[15] Deckle
McLean. Public Versus Private Figure Determination Under 'Gertz.' Communications and the
Law. Jun 1992, 32.
[16] Lewis, 195.
[17] Rosenberg,
254.
[18] McLean, 33.
[19] Ibid., 33.
[20] Lewis, 202.
[21] Don Sneed, et
al. Constitution
Provides Limited Libel Protection to Broadcast Commentators.
Communications
and the Law. Dec 91, 27.
[22] Robert L.
Spellman. Spitting in the Queen's soup. Communications and the Law. Dec 94, 66.
[23] Roy V.
Leeper. Refocusing libel law: Gross irresponsibility and Naantaanbuu v.
Abernathy.
Communications and the Law. Sept 98, 68.
[24] Ibid., 72.