SUPREME COURT OF THE UNITED STATES
NEW YORK TIMES CO. v. SULLIVAN
376 U.S. 254
CERTIORARI
TO THE SUPREME COURT OF ALABAMA
No. 39.
Argued January 6, 1964.
Decided March 9, 1964.
OPINION
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We are required in this case to determine for the first time the extent to
which the constitutional protections for speech and press limit a State's power
to award damages in a libel action brought by a public official against critics
of his official conduct.
Respondent L. B. Sullivan is one of the three elected Commissioners of the
City of Montgomery, Alabama. He testified that he was "Commissioner of Public
Affairs and the duties are supervision of the Police Department, Fire
Department, Department of Cemetery and Department of Scales." He brought this
civil libel action against the four individual petitioners, who are Negroes and
Alabama clergymen, and against petitioner the New York Times Company, a New York
corporation which publishes the New York Times, a daily newspaper. A jury in the
Circuit Court of Montgomery County awarded him damages of $500,000, the full
amount claimed, against all the petitioners, and the Supreme Court of Alabama
affirmed. 273 Ala. 656, 144 So.2d 25.
Respondent's complaint alleged that he had been libeled by statements in a
full-page advertisement that was carried in the New York Times on March 29,
1960. (1)
Entitled "Heed Their Rising Voices," the advertisement began by stating that
"As the whole world knows by now, thousands of Southern Negro students are
engaged in widespread non-violent demonstrations in positive affirmation of the
right to live in human dignity as guaranteed by the U.S. Constitution and the
Bill of Rights." It went on to charge that "in their efforts to uphold these
guarantees, they are being met by an unprecedented wave of terror by those who
would deny and negate that document which the whole world looks upon as setting
the pattern for modern freedom. . . ." Succeeding [376 U.S. 254, 257] paragraphs purported to
illustrate the "wave of terror" by describing certain alleged events. The text
concluded with an appeal for funds for three purposes: support of the student
movement, "the struggle for the right-to-vote," and the legal defense of Dr.
Martin Luther King, Jr., leader of the movement, against a perjury indictment
then pending in Montgomery.
The text appeared over the names of 64 persons, many widely known for their
activities in public affairs, religion, trade unions, and the performing arts.
Below these names, and under a line reading "We in the south who are struggling
daily for dignity and freedom warmly endorse this appeal," appeared the names of
the four individual petitioners and of 16 other persons, all but two of whom
were identified as clergymen in various Southern cities. The advertisement was
signed at the bottom of the page by the "Committee to Defend Martin Luther King
and the Struggle for Freedom in the South," and the officers of the Committee
were listed.
Of the 10 paragraphs of text in the advertisement, the third and a portion of
the sixth were the basis of respondent's claim of libel. They read as follows:
Third paragraph:
"In Montgomery, Alabama, after
students sang `My Country, 'Tis of Thee' on the State Capitol steps, their
leaders were expelled from school, and truckloads of police armed with shotguns
and tear-gas ringed the Alabama State College Campus. When the entire student
body protested to state authorities by refusing to re-register, their dining
hall was padlocked in an attempt to starve them into submission."
Sixth paragraph:
"Again and again the Southern
violators have answered Dr. King's peaceful protests with intimidation and
violence. They have bombed his home almost killing his wife and child. They have
[376 U.S. 254,
258]
assaulted his person. They have arrested him seven times - for
`speeding,' `loitering' and similar `offenses.' And now they have charged him
with `perjury' - a felony under which they could imprison him for ten years...."
It is uncontroverted that some of the statements contained in the paragraphs
were not accurate descriptions of events which occurred in Montgomery. Although
Negro students staged a demonstration on the State Capitol steps, they sang the
National Anthem and not "My [376 U.S. 254, 259] Country, 'Tis of Thee."
Although nine students were expelled by the State Board of Education, this was
not for leading the demonstration at the Capitol, but for demanding service at a
lunch counter in the Montgomery County Courthouse on another day. Not the entire
student body, but most of it, had protested the expulsion, not by refusing to
register, but by boycotting classes on a single day; virtually all the students
did register for the ensuing semester. The campus dining hall was not padlocked
on any occasion, and the only students who may have been barred from eating
there were the few who had neither signed a preregistration application nor
requested temporary meal tickets. Although the police were deployed near the
campus in large numbers on three occasions, they did not at any time "ring" the
campus, and they were not called to the campus in connection with the
demonstration on the State Capitol steps, as the third paragraph implied. Dr.
King had not been arrested seven times, but only four; and although he claimed
to have been assaulted some years earlier in connection with his arrest for
loitering outside a courtroom, one of the officers who made the arrest denied
that there was such an assault.
On the premise that the charges in the sixth paragraph could be read as
referring to him, respondent was allowed to prove that he had not participated
in the events described. Although Dr. King's home had in fact been bombed twice
when his wife and child were there, both of these occasions antedated
respondent's tenure as Commissioner, and the police were not only not implicated
in the bombings, but had made every effort to apprehend those who were. Three of
Dr. King's four arrests took place before respondent became Commissioner.
Although Dr. King had in fact been indicted (he was subsequently acquitted) on
two counts of perjury, each of which carried a possible five-year sentence,
respondent had nothing to do with procuring the indictment. [376 U.S. 254, 260]
Respondent made no effort to prove that he suffered actual pecuniary loss as
a result of the alleged libel. (3) One of his
witnesses, a former employer, testified that if he had believed the statements,
he doubted whether he "would want to be associated with anybody who would be a
party to such things that are stated in that ad," and that he would not
re-employ respondent if he believed "that he allowed the Police Department to do
the things that the paper say he did." But neither this witness nor any of the
others testified that he had actually believed the statements in their supposed
reference to respondent.
The cost of the advertisement was approximately $4800, and it was published
by the Times upon an order from a New York advertising agency acting for the
signatory Committee. The agency submitted the advertisement with a letter from
A. Philip Randolph, Chairman of the Committee, certifying that the persons whose
names appeared on the advertisement had given their permission. Mr. Randolph was
known to the Times' Advertising Acceptability Department as a responsible
person, and in accepting the letter as sufficient proof of authorization it
followed its established practice. There was testimony that the copy of the
advertisement which accompanied the letter listed only the 64 names appearing
under the text, and that the statement, "We in the south . . . warmly endorse
this appeal," and the list of names thereunder, which included those of the
individual petitioners, were subsequently added when the first proof of the
advertisement was received. Each of the individual petitioners testified that he
had not authorized the use of his name, and that he had been unaware of its use
until receipt of respondent's demand for a retraction. The manager of the
Advertising Acceptability [376 U.S. 254, 261] Department testified that
he had approved the advertisement for publication because he knew nothing to
cause him to believe that anything in it was false, and because it bore the
endorsement of "a number of people who are well known and whose reputation" he
"had no reason to question." Neither he nor anyone else at the Times made an
effort to confirm the accuracy of the advertisement, either by checking it
against recent Times news stories relating to some of the described events or by
any other means.
Alabama law denies a public officer recovery of punitive damages in a libel
action brought on account of a publication concerning his official conduct
unless he first makes a written demand for a public retraction and the defendant
fails or refuses to comply. Alabama Code, Tit. 7, 914. Respondent served such a
demand upon each of the petitioners. None of the individual petitioners
responded to the demand, primarily because each took the position that he had
not authorized the use of his name on the advertisement and therefore had not
published the statements that respondent alleged had libeled him. The Times did
not publish a retraction in response to the demand, but wrote respondent a
letter stating, among other things, that "we . . . are somewhat puzzled as to
how you think the statements in any way reflect on you," and "you might, if you
desire, let us know in what respect you claim that the statements in the
advertisement reflect on you." Respondent filed this suit a few days later
without answering the letter. The Times did, however, subsequently publish a
retraction of the advertisement upon the demand of Governor John Patterson of
Alabama, who asserted that the publication charged him with "grave misconduct
and . . . improper actions and omissions as Governor of Alabama and Ex-Officio
Chairman of the State Board of Education of Alabama." When asked to explain why
there had been a retraction for the Governor but not for respondent, the
[376 U.S. 254,
262]
Secretary of the Times testified: "We did that because we didn't want
anything that was published by The Times to be a reflection on the State of
Alabama and the Governor was, as far as we could see, the embodiment of the
State of Alabama and the proper representative of the State and, furthermore, we
had by that time learned more of the actual facts which the ad purported to
recite and, finally, the ad did refer to the action of the State authorities and
the Board of Education presumably of which the Governor is the ex-officio
chairman . . . ." On the other hand, he testified that he did not think that
"any of the language in there referred to Mr. Sullivan."
The trial judge submitted the case to the jury under instructions that the
statements in the advertisement were "libelous per se" and were not privileged,
so that petitioners might be held liable if the jury found that they had
published the advertisement and that the statements were made "of and
concerning" respondent. The jury was instructed that, because the statements
were libelous per se, "the law . . . implies legal injury from the bare fact of
publication itself," "falsity and malice are presumed," "general damages need
not be alleged or proved but are presumed," and "punitive damages may be awarded
by the jury even though the amount of actual damages is neither found nor
shown." An award of punitive damages - as distinguished from "general" damages,
which are compensatory in nature - apparently requires proof of actual malice
under Alabama law, and the judge charged that "mere negligence or carelessness
is not evidence of actual malice or malice in fact, and does not justify an
award of exemplary or punitive damages." He refused to charge, however, that the
jury must be "convinced" of malice, in the sense of "actual intent" to harm or
"gross negligence and recklessness," to make such an award, and he also refused
to require that a verdict for respondent differentiate between compensatory and
punitive damages. The judge rejected petitioners' contention [376 U.S. 254, 263] that his rulings abridged
the freedoms of speech and of the press that are guaranteed by the First and
Fourteenth Amendments.
In affirming the judgment, the Supreme Court of Alabama sustained the trial
judge's rulings and instructions in all respects. 273 Ala. 656, 144 So.2d 25. It
held that "where the words published tend to injure a person libeled by them in
his reputation, profession, trade or business, or charge him with an indictable
offense, or tend to bring the individual into public contempt," they are
"libelous per se"; that "the matter complained of is, under the above doctrine,
libelous per se, if it was published of and concerning the plaintiff"; and that
it was actionable without "proof of pecuniary injury . . ., such injury being
implied." Id., at 673, 676, 144 So.2d, at 37, 41. It approved the trial court's
ruling that the jury could find the statements to have been made "of and
concerning" respondent, stating: "We think it common knowledge that the average
person knows that municipal agents, such as police and firemen, and others, are
under the control and direction of the city governing body, and more
particularly under the direction and control of a single commissioner. In
measuring the performance or deficiencies of such groups, praise or criticism is
usually attached to the official in complete control of the body." Id., at
674-675, 144 So.2d at 39. In sustaining the trial court's determination that the
verdict was not excessive, the court said that malice could be inferred from the
Times' "irresponsibility" in printing the advertisement while "the Times in its
own files had articles already published which would have demonstrated the
falsity of the allegations in the advertisement"; from the Times' failure to
retract for respondent while retracting for the Governor, whereas the falsity of
some of the allegations was then known to the Times and "the matter contained in
the advertisement was equally false as to both parties"; and from the testimony
of the Times' Secretary that, [376 U.S. 254, 264] apart from the statement that
the dining hall was pad-locked, he thought the two paragraphs were
"substantially correct." Id., at 686-687, 144 So.2d at 50-51. The court
reaffirmed a statement in an earlier opinion that "There is no legal measure of
damages in cases of this character." Id., at 686, 144 So.2d, at 50. It rejected
petitioners' constitutional contentions with the brief statements that "The
First Amendment of the U.S. Constitution does not protect libelous publications"
and "The Fourteenth Amendment is directed against State action and not private
action." Id., at 676, 144 So.2d, at 40.
Because of the importance of the constitutional issues involved, we granted
the separate petitions for certiorari of the individual petitioners and of the
Times. 371
U.S. 946 . We reverse the judgment. We hold that the rule of law applied by
the Alabama courts is constitutionally deficient for failure to provide the
safeguards for freedom of speech and of the press that are required by the First
and Fourteenth Amendments in a libel action brought by a public official against
critics of his official conduct. (4) We [376 U.S. 254, 265] further hold that under
the proper safeguards the evidence presented in this case is constitutionally
insufficient to support the judgment for respondent.
We may dispose at the outset of two grounds asserted to insulate the judgment
of the Alabama courts from constitutional scrutiny. The first is the proposition
relied on by the State Supreme Court - that "The Fourteenth Amendment is
directed against State action and not private action." That proposition has no
application to this case. Although this is a civil lawsuit between private
parties, the Alabama courts have applied a state rule of law which petitioners
claim to impose invalid restrictions on their constitutional freedoms of speech
and press. It matters not that that law has been applied in a civil action and
that it is common law only, though supplemented by statute. See, e. g., Alabama
Code, Tit. 7, 908-917. The test is not the form in which state power has been
applied but, whatever the form, whether such power has in fact been exercised.
See Ex parte Virginia, 100
U.S. 339, 346 -347; American Federation of Labor v. Swing, 312
U.S. 321 .
The second contention is that the constitutional guarantees of freedom of
speech and of the press are inapplicable here, at least so far as the Times is
concerned, because the allegedly libelous statements were published as part of a
paid, "commercial" advertisement. The argument relies on Valentine v.
Chrestensen, 316
U.S. 52 , where the Court held that a city ordinance forbidding street
distribution of commercial and business advertising matter did not abridge the
First Amendment freedoms, even as applied to a handbill having a commercial
message on one side but a protest against certain official action on the other.
The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the
constitutional protection for "the freedom of communicating [376 U.S. 254, 266] information and
disseminating opinion"; its holding was based upon the factual conclusions that
the handbill was "purely commercial advertising" and that the protest against
official action had been added only to evade the ordinance.
The publication here was not a "commercial" advertisement in the sense in
which the word was used in Chrestensen. It communicated information, expressed
opinion, recited grievances, protested claimed abuses, and sought financial
support on behalf of a movement whose existence and objectives are matters of
the highest public interest and concern. See N. A. A. C. P. v. Button, 371
U.S. 415, 435 . That the Times was paid for publishing the advertisement is
as immaterial in this connection as is the fact that newspapers and books are
sold. Smith v. California, 361
U.S. 147, 150 ; cf. Bantam Books, Inc., v. Sullivan, 372
U.S. 58, 64 , n. 6. Any other conclusion would discourage newspapers from
carrying "editorial advertisements" of this type, and so might shut off an
important outlet for the promulgation of information and ideas by persons who do
not themselves have access to publishing facilities - who wish to exercise their
freedom of speech even though they are not members of the press. Cf. Lovell v.
Griffin, 303
U.S. 444, 452 ; Schneider v. State, 308
U.S. 147, 164 . The effect would be to shackle the First Amendment in its
attempt to secure "the widest possible dissemination of information from diverse
and antagonistic sources." Associated Press v. United States, 326
U.S. 1, 20 . To avoid placing such a handicap upon the freedoms of
expression, we hold that if the allegedly libelous statements would otherwise be
constitutionally protected from the present judgment, they do not forfeit that
protection because they were published in the from of a paid advertisement. (5)
[376 U.S. 254,
267]
Under Alabama law as applied in this case, a publication is "libelous per se"
if the words "tend to injure a person . . . in his reputation" or to "bring
[him] into public contempt"; the trial court stated that the standard was met if
the words are such as to "injure him in his public office, or impute misconduct
to him in his office, or want of official integrity, or want of fidelity to a
public trust . . . ." The jury must find that the words were published "of and
concerning" the plaintiff, but where the plaintiff is a public official his
place in the governmental hierarchy is sufficient evidence to support a finding
that his reputation has been affected by statements that reflect upon the agency
of which he is in charge. Once "libel per se" has been established, the
defendant has no defense as to stated facts unless he can persuade the jury that
they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala.
263, 178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494-495,
124 So.2d 441, 457-458 (1960). His privilege of "fair comment" for expressions
of opinion depends on the truth of the facts upon which the comment is based.
Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913).
Unless he can discharge the burden of proving truth, general damages are
presumed, and may be awarded without proof of pecuniary injury. A showing of
actual malice is apparently a prerequisite to recovery of punitive damages, and
the defendant may in any event forestall a punitive award by a retraction
meeting the statutory requirements. Good motives and belief in truth do not
negate an inference of malice, but are relevant only in mitigation of punitive
damages if the jury chooses to accord them weight. Johnson Publishing Co. v.
Davis, supra, 271 Ala., at 495, 124 So.2d, at 458. [376 U.S. 254, 268]
The question before us is whether this rule of liability, as applied to an
action brought by a public official against critics of his official conduct,
abridges the freedom of speech and of the press that is guaranteed by the first
and Fourteenth Amendments.
Respondent relies heavily, as did the Alabama courts, on statements of this
Court to the effect that the Constitution does not protect libelous
publications. (6) Those statements do not
foreclose our inquiry here. None of the cases sustained the use of libel laws to
impose sanctions upon expression critical of the official conduct of public
officials. The dictum in Pennekamp v. Florida, 328
U.S. 331, 348 -349, that "when the statements amount to defamation, a judge
has such remedy in damages for libel as do other public servants," implied no
view as to what remedy might constitutionally be afforded to public officials.
In Beauharnais v. Illinois, 343
U.S. 250 , the Court sustained an Illinois criminal libel statute as applied
to a publication held to be both defamatory of a racial group and "liable to
cause violence and disorder." But the Court was careful to note that it "retains
and exercises authority to nullify action which encroaches on freedom of
utterance under the guise of punishing libel"; for "public men, are, as it were,
public property," and "discussion cannot be denied and the right, as well as the
duty, of criticism must not be stifled." Id., at 263-264, and n. 18. In the only
previous case that did present the question of constitutional limitations upon
the power to award damages for libel of a public official, the Court was equally
divided and the question was not decided. Schenectady Union Pub. Co. v. Sweeney,
316
U.S. 642 . [376 U.S.
254, 269]
In deciding the question now, we are compelled by neither precedent nor
policy to give any more weight to the epithet "libel" than we have to other
"mere labels" of state law. N. A. A. C. P. v. Button, 371
U.S. 415, 429 . Like insurrection, (7) contempt, (8) advocacy of
unlawful acts, (9)
breach of the peace, (10) obscenity,
(11)
solicitation of legal business, (12) and the
various other formulae for the repression of expression that have been
challenged in this court, libel can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that satisfy the
First Amendment.
The general proposition that freedom of expression upon public questions is
secured by the First Amendment has long been settled by our decisions. The
constitutional safeguard, we have said, "was fashioned to assure unfettered
interchange of ideas for the bringing about of political and social changes
desired by the people." Roth v. United States, 354
U.S. 476, 484 . "The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will of the
people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our
constitutional system." Stromberg v. California, 283
U.S. 359, 369 . "[I]t is a prized American privilege to speak one's mind,
although not always with perfect good taste, on all public institutions,"
Bridges v. California, 314
U.S. 252, 270 , and this opportunity is to be afforded for "vigorous
advocacy" no less than "abstract discussion." N. A. A. C. P. v. Button, 371
U.S. 415, 429 . [376
U.S. 254, 270]
The First Amendment, said Judge Learned Hand, "presupposes that right
conclusions are more likely to be gathered out of a multitude of tongues, than
through any kind of authoritative selection. To many this is, and always will
be, folly; but we have staked upon it our all." United States v. Associated
Press, 52 F. Supp. 362, 372 (D.C. S. D. N. Y. 1943). Mr. Justice Brandeis, in
his concurring opinion in Whitney v. California, 274
U.S. 357, 375-376, gave the principle its classic formulation:
"Those who won our independence
believed . . . that public discussion is a political duty; and that this should
be a fundamental principle of the American government. They recognized the risks
to which all human institutions are subject. But they knew that order cannot be
secured merely through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government;
that the path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy for evil counsels
is good ones. Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law - the argument of force in its
worst form. Recognizing the occasional tyrannies of governing majorities, they
amended the Constitution so that free speech and assembly should be
guaranteed."
Authoritative interpretations of the First Amendment guarantees have
consistently refused to recognize an exception for any test of truth - whether
administered by judges, juries, or administrative officials - and especially one
that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357
U.S. 513, 525 -526. The constitutional protection does not turn upon "the
truth, popularity, or social utility of the ideas and beliefs which are
offered." N. A. A. C. P. v. Button, 371
U.S. 415, 445 . As Madison said, "Some degree of abuse is inseparable from
the proper use of every thing; and in no instance is this more true than in that
of the press." 4 Elliot's Debates on the Federal Constitution (1876), p. 571. In
Cantwell v. Connecticut, 310
U.S. 296, 310 , the Court declared:
"In the realm of religious faith,
and in that of political belief, sharp differences arise. In both fields the
tenets of one man may seem the rankest error to his neighbor. To persuade others
to his own point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are, prominent in church
or state, and even to false statement. But the people of this nation have
ordained in the light of history, that, in spite of the probability of excesses
and abuses, these liberties are, in the long view, essential to enlightened
opinion and right conduct on the part of the citizens of a democracy."
If neither factual error nor defamatory content suffices to remove the
constitutional shield from criticism of official conduct, the combination of the
two elements is no less inadequate. This is the lesson to be drawn from the
great controversy over the Sedition Act of 1798, 1 Stat. 596, which first
crystallized a national awareness of the central meaning of the First Amendment.
See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters
(1956), at 426, 431, and passim. That statute made it a crime, punishable by a
$5,000 fine and five years in prison, "if any person shall write, print, utter
or publish . . . any false, scandalous and malicious [376 U.S. 254, 274] writing or writings
against the government of the United States, or either house of the Congress. .
., or the President . . ., with intent to defame . . . or to bring them, or
either of them, into contempt or disrepute; or to excite against them, or either
or any of them, the hatred of the good people of the United States." The Act
allowed the defendant the defense of truth, and provided that the jury were to
be judges both of the law and the facts. Despite these qualifications, the Act
was vigorously condemned as unconstitutional in an attack joined in by Jefferson
and Madison. In the famous Virginia Resolutions of 1798, the General Assembly of
Virginia resolved that it
"doth particularly protest against
the palpable and alarming infractions of the Constitution, in the two late cases
of the `Alien and Sedition Acts,' passed at the last session of Congress . . . .
[The Sedition Act] exercises . . . a power not delegated by the Constitution,
but, on the contrary, expressly and positively forbidden by one of the
amendments thereto - a power which, more than any other, ought to produce
universal alarm, because it is levelled against the right of freely examining
public characters and measures, and of free communication among the people
thereon, which has ever been justly deemed the only effectual guardian of every
other right." 4 Elliot's Debates, supra, pp. 553-554.
Although the Sedition Act was never tested in this Court, (16) the attack
upon its validity has carried the day in the court of history. Fines levied in
its prosecution were repaid by Act of Congress on the ground that it was
unconstitutional. See, e. g., Act of July 4, 1840, c. 45, 6 Stat. 802,
accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun,
reporting to the Senate on February 4, 1836, assumed that its invalidity was a
matter "which no one now doubts." Report with Senate bill No. 122, 24th Cong.,
1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted
and sentenced under the Act and remitted their fines, stating: "I discharged
every person under punishment or prosecution under the sedition law, because I
considered, and now consider, that law to be a nullity, as absolute and as
palpable as if Congress had ordered us to fall down and worship a golden image."
Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp.
555, 556. The invalidity of the Act has also been assumed by Justices of this
Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v.
United States, 250
U.S. 616, 630 ; Jackson, J., dissenting in Beauharnais v. Illinois, 343
U.S. 250, 288 -289; Douglas, The Right of the People (1958), p. 47. See also
Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900;
Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect
a broad consensus that the Act, because of the restraint it imposed upon
criticism of government and public officials, was inconsistent with the First
Amendment.
There is no force in respondent's argument that the constitutional
limitations implicit in the history of the Sedition Act apply only to Congress
and not to the States. It is true that the First Amendment was originally
addressed only to action by the Federal Government, and [376 U.S. 254, 277] that Jefferson, for one,
while denying the power of Congress "to controul the freedom of the press,"
recognized such a power in the States. See the 1804 Letter to Abigail Adams
quoted in Dennis v. United States, 341
U.S. 494, 522 , n. 4 (concurring opinion). But this distinction was
eliminated with the adoption of the Fourteenth Amendment and the application to
the States of the First Amendment's restrictions. See, e. g., Gitlow v. New
York, 268
U.S. 652, 666 ; Schneider v. State, 308
U.S. 147, 160 ; Bridges v. California, 314
U.S. 252, 268 ; Edwards v. South Carolina, 372
U.S. 229, 235 .
What a State may not constitutionally bring about by means of a criminal
statute is likewise beyond the reach of its civil law of libel. (17) The fear of
damage awards under a rule such as that invoked by the Alabama courts here may
be markedly more inhibiting than the fear of prosecution under a criminal
statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N. E. 86, 90
(1923). Alabama, for example, has a criminal libel law which subjects to
prosecution "any person who speaks, writes, or prints of and concerning another
any accusation falsely and maliciously importing the commission by such person
of a felony, or any other indictable offense involving moral turpitude," and
which allows as punishment upon conviction a fine not exceeding $500 and a
prison sentence of six months. Alabama Code, Tit. 14, 350. Presumably a person
charged with violation of this statute enjoys ordinary criminal-law safeguards
such as the requirements of an indictment and of proof beyond a reasonable
doubt. These safeguards are not available to the defendant in a civil action.
The judgment awarded in this case - without the need for any proof of actual
pecuniary loss - was one thousand times greater than the maximum fine provided
by the Alabama criminal statute, and one hundred times greater than that
provided by the Sedition Act. [376 U.S. 254, 278] And since there is no
double-jeopardy limitation applicable to civil lawsuits, this is not the only
judgment that may be awarded against petitioners for the same publication. (18) Whether or
not a newspaper can survive a succession of such judgments, the pall of fear and
timidity imposed upon those who would give voice to public criticism is an
atmosphere in which the First Amendment freedoms cannot survive. Plainly the
Alabama law of civil libel is "a form of regulation that creates hazards to
protected freedoms markedly greater than those that attend reliance upon the
criminal law." Bantam Books, Inc., v. Sullivan, 372
U.S. 58, 70 .
The state rule of law is not saved by its allowance of the defense of truth.
A defense for erroneous statements honestly made is no less essential here than
was the requirement of proof of guilty knowledge which, in Smith v. California,
361
U.S. 147 , we held indispensable to a valid conviction of a bookseller for
possessing obscene writings for sale. We said:
"For if the bookseller is
criminally liable without knowledge of the contents, . . . he will tend to
restrict the books he sells to those he has inspected; and thus the State will
have imposed a restriction upon the distribution of constitutionally protected
as well as obscene literature. . . . And the bookseller's burden would become
the public's burden, for by restricting him the public's access to reading
matter would be restricted. . . . [H]is timidity in the face of his absolute
criminal liability, thus would tend to restrict the public's access to forms of
the printed word which the State could not constitutionally [376 U.S. 254, 279] suppress directly. The
bookseller's self-censorship, compelled by the State, would be a censorship
affecting the whole public, hardly less virulent for being privately
administered. Through it, the distribution of all books, both obscene and not
obscene, would be impeded." ( 361
U.S. 147, 153 -154.)
The constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was made
[376 U.S. 254,
280] with
"actual malice" - that is, with knowledge that it was false or with reckless
disregard of whether it was false or not. An oft-cited statement of a like rule,
which has been adopted by a number of state courts, (20) is found in
the Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). The
State Attorney General, a candidate for re-election and a member of the
commission charged with the management and control of the state school fund,
sued a newspaper publisher for alleged libel in an article purporting to state
facts relating to his official conduct in connection with a school-fund
transaction. The defendant pleaded privilege and the trial judge, over the
plaintiff's objection, instructed the jury that
"where an article is published and
circulated among voters for the sole purpose of giving what the defendant
[376 U.S. 254, 281]
believes to be truthful information concerning a candidate for public
office and for the purpose of enabling such voters to cast their ballot more
intelligently, and the whole thing is done in good faith and without malice, the
article is privileged, although the principal matters contained in the article
may be untrue in fact and derogatory to the character of the plaintiff; and in
such a case the burden is on the plaintiff to show actual malice in the
publication of the article."
We conclude that such a privilege is required by the First and Fourteenth
Amendments.
We hold today that the Constitution delimits a State's power to award damages
for libel in actions brought by public officials against critics of their
official conduct. Since this is such an action, (23) the rule
requiring proof of actual malice is applicable. While Alabama law apparently
requires proof of actual malice for an award of punitive damages, (24) where
general damages are concerned malice is "presumed." Such a presumption is
inconsistent [376 U.S. 254,
284] with
the federal rule. "The power to create presumptions is not a means of escape
from constitutional restrictions," Bailey v. Alabama, 219
U.S. 219, 239; "the showing of malice required for the forfeiture of the
privilege is not presumed but is a matter for proof by the plaintiff . . . ."
Lawrence v. Fox, 357 Mich. 134, 146, 97 N. W. 2d 719, 725 (1959). (25) Since the
trial judge did not instruct the jury to differentiate between general and
punitive damages, it may be that the verdict was wholly an award of one or the
other. But it is impossible to know, in view of the general verdict returned.
Because of this uncertainty, the judgment must be reversed and the case
remanded. Stromberg v. California, 283
U.S. 359, 367 -368; Williams v. North Carolina, 317
U.S. 287, 291 -292; see Yates v. United States, 354
U.S. 298, 311 -312; Cramer v. United States, 325
U.S. 1, 36 , n. 45.
Since respondent may seek a new trial, we deem that considerations of
effective judicial administration require us to review the evidence in the
present record to determine [376 U.S. 254, 285] whether it could
constitutionally support a judgment for respondent. This Court's 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. This is such a case, particularly since the question
is one of alleged trespass across "the line between speech unconditionally
guaranteed and speech which may legitimately be regulated." Speiser v. Randall,
357
U.S. 513, 525 . In cases where that line must be drawn, the rule is that we
"examine for ourselves the statements in issue and the circumstances under which
they were made to see . . . whether they are of a character which the principles
of the First Amendment, as adopted by the Due Process Clause of the Fourteenth
Amendment, protect." Pennekamp v. Florida, 328
U.S. 331, 335 ; see also One, Inc., v. Olesen, 355
U.S. 371 ; Sunshine Book Co. v. Summerfield, 355
U.S. 372 . We must "make an independent examination of the whole record,"
Edwards v. South Carolina, 372
U.S. 229, 235 , so as to assure ourselves that the judgment does not
constitute a forbidden intrusion on the field of free expression. (26)
Applying these standards, we consider that the proof presented to show actual
malice lacks the convincing [376 U.S. 254, 286] clarity which the constitutional
standard demands, and hence that it would not constitutionally sustain the
judgment for respondent under the proper rule of law. The case of the individual
petitioners requires little discussion. Even assuming that they could
constitutionally be found to have authorized the use of their names on the
advertisement, there was no evidence whatever that they were aware of any
erroneous statements or were in any way reckless in that regard. The judgment
against them is thus without constitutional support.
As to the Times, we similarly conclude that the facts do not support a
finding of actual malice. The statement by the Times' Secretary that, apart from
the padlocking allegation, he thought the advertisement was "substantially
correct," affords no constitutional warrant for the Alabama Supreme Court's
conclusion that it was a "cavalier ignoring of the falsity of the advertisement
[from which] the jury could not have but been impressed with the bad faith of
The Times, and its maliciousness inferable therefrom." The statement does not
indicate malice at the time of the publication; even if the advertisement was
not "substantially correct" - although respondent's own proofs tend to show that
it was - that opinion was at least a reasonable one, and there was no evidence
to impeach the witness' good faith in holding it. The Times' failure to retract
upon respondent's demand. although it later retracted upon the demand of
Governor Patterson, is likewise not adequate evidence of malice for
constitutional purposes. Whether or not a failure to retract may ever constitute
such evidence, there are two reasons why it does not here. First, the letter
written by the Times reflected a reasonable doubt on its part as to whether the
advertisement could reasonably be taken to refer to respondent at all. Second,
it was not a final refusal, since it asked for an explanation on this point - a
request that respondent chose to ignore. Nor does the retraction upon the demand
of the Governor supply the [376 U.S. 254, 287] necessary proof. It may be
doubted that a failure to retract which is not itself evidence of malice can
retroactively become such by virtue of a retraction subsequently made to another
party. But in any event that did not happen here, since the explanation given by
the Times' Secretary for the distinction drawn between respondent and the
Governor was a reasonable one, the good faith of which was not impeached.
Finally, there is evidence that the Times published the advertisement without
checking its accuracy against the news stories in the Times' own files. The mere
presence of the stories in the files does not, of course, establish that the
Times "knew" the advertisement was false, since the state of mind required for
actual malice would have to be brought home to the persons in the Times'
organization having responsibility for the publication of the advertisement.
With respect to the failure of those persons to make the check, the record shows
that they relied upon their knowledge of the good reputation of many of those
whose names were listed as sponsors of the advertisement, and upon the letter
from A. Philip Randolph, known to them as a responsible individual, certifying
that the use of the names was authorized. There was testimony that the persons
handling the advertisement saw nothing in it that would render it unacceptable
under the Times' policy of rejecting advertisements containing "attacks of a
personal character"; (27) their
failure to reject it on this ground was not unreasonable. We think [376 U.S. 254, 288] the evidence against the Times
supports at most a finding of negligence in failing to discover the
misstatements, and is constitutionally insufficient to show the recklessness
that is required for a finding of actual malice. Cf. Charles Parker Co. v.
Silver City Crystal Co., 142 Conn. 605, 618, 116 A. 2d 440, 446 (1955); Phoenix
Newspapers, Inc., v. Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150, 154-155
(1957).
We also think the evidence was constitutionally defective in another respect:
it was incapable of supporting the jury's finding that the allegedly libelous
statements were made "of and concerning" respondent. Respondent relies on the
words of the advertisement and the testimony of six witnesses to establish a
connection between it and himself. Thus, in his brief to this Court, he states:
"The reference to respondent as
police commissioner is clear from the ad. In addition, the jury heard the
testimony of a newspaper editor . . .; a real estate and insurance man . . .;
the sales manager of a men's clothing store . . .; a food equipment man . . .; a
service station operator . . .; and the operator of a truck line for whom
respondent had formerly worked . . . . Each of these witnesses stated that he
associated the statements with respondent . . . ." (Citations to record
omitted.)
The judgment of the Supreme Court of Alabama is reversed and the case is
remanded to that court for further proceedings not inconsistent with this
opinion.
Reversed and remanded.
[1
] A copy of the advertisement is printed in the Appendix.
[ 2 ] Respondent
did not consider the charge of expelling the students to be applicable to him,
since "that responsibility rests with the State Department of Education."
[ 3 ]
Approximately 394 copies of the edition of the Times containing the
advertisement were circulated in Alabama. Of these, about 35 copies were
distributed in Montgomery County. The total circulation of the Times for that
day was approximately 650,000 copies.
[ 4 ] Since we
sustain the contentions of all the petitioners under the First Amendment's
guarantees of freedom of speech and of the press as applied to the State by the
Fourteenth Amendment, we do not decide the questions presented by the other
claims of violation of the Fourteenth Amendment. The individual petitioners
contend that the judgment against them offends the Due Process Clause because
there was no evidence to show that they had published or authorized the
publication of the alleged libel, and that the Due Process and Equal Protection
Clauses were violated by racial segregation and racial bias in the courtroom.
The Times contends that the assumption of jurisdiction over its corporate person
by the Alabama courts overreaches the territorial limits of the Due Process
Clause. The latter claim is foreclosed from our review by the ruling of the
Alabama courts that the Times entered a general appearance in the action and
thus waived its jurisdictional objection; we cannot say that this ruling lacks
"fair or substantial support" in prior Alabama decisions. See Thompson v.
Wilson, 224 Ala. 299, 140 So. 439 (1932); compare N. A. A. C. P. v. Alabama, 357
U.S. 449, 454 -458.
[ 5 ] See American
Law Institute, Restatement of Torts, 593, Comment b (1938).
[ 6 ] Konigsberg
v. State Bar of California, 366
U.S. 36, 49 , and n. 10; Times Film Corp. v. City of Chicago, 365
U.S. 43, 48 ; Roth v. United States, 354
U.S. 476, 486 -487; Beauharnais v. Illinois, 343
U.S. 250, 266 ; Pennekamp v. Florida, 328
U.S. 331, 348 -349; Chaplinsky v. New Hampshire, 315
U.S. 568, 572 ; Near v. Minnesota, 283
U.S. 697, 715 .
[ 7 ] Herndon v.
Lowry, 301
U.S. 242 .
[ 8 ] Bridges v.
California, 314
U.S. 252 ; Pennekamp v. Florida, 328
U.S. 331 .
[ 9 ] De Jonge v.
Oregon, 299
U.S. 353 .
[ 10 ] Edwards v.
South Carolina, 372
U.S. 229 .
[ 11 ] Roth v.
United States, 354
U.S. 476 .
[ 12 ] N. A. A.
C. P. v. Button, 371
U.S. 415 .
[ 13 ] See also
Mill, On Liberty (Oxford: Blackwell, 1947), at 47: ". . . [T]o argue
sophistically, to suppress facts or arguments, to misstate the elements of the
case, or misrepresent the opposite opinion . . . all this, even to the most
aggravated degree, is so continually done in perfect good faith, by persons who
are not considered, and in many other respects may not deserve to be considered,
ignorant or incompetent, that it is rarely possible, on adequate grounds,
conscientiously to stamp the misrepresentation as morally culpable; and still
less could law presume to interfere with this kind of controversial misconduct."
[ 14 ] The
climate in which public officials operate, especially during a political
campaign, has been described by one commentator in the following terms: "Charges
of gross incompetence, disregard of the public interest, communist sympathies,
and the like usually have filled the air; and hints of bribery, embezzlement,
and other criminal conduct are not infrequent." Noel, Defamation of Public
Officers and Candidates, 49 Col. L. Rev. 875 (1949). For a similar description
written 60 years earlier, see Chase, Criticism of Public Officers and Candidates
for Office, 23 Am. L. Rev. 346 (1889).
[ 15 ] The Report
on the Virginia Resolutions further stated: "[I]t is manifestly impossible to
punish the intent to bring those who administer the government into disrepute or
contempt, without striking at the right of freely discussing public characters
and measures; . . . which, again, is equivalent to a protection of those who
administer the government, if they should at any time deserve the contempt or
hatred of the people, against being exposed to it, by free animadversions on
their characters and conduct. Nor can there be a doubt . . . that a government
thus intrenched in penal statutes against the just and natural effects of a
culpable administration, will easily evade the responsibility which is essential
to a faithful discharge of its duty. "Let it be recollected, lastly, that the
right of electing the members of the government constitutes more particularly
the essence of a free and responsible government. The value and efficacy of this
right depends on the knowledge of the comparative merits and demerits of the
candidates for public trust, and on the equal freedom, consequently, of
examining and discussing these merits and demerits of the candidates
respectively." 4 Elliot's Debates, supra, p. 575.
[ 16 ] The Act
expired by its terms in 1801.
[ 17 ] Cf.
Farmers Union v. WDAY, 360
U.S. 525, 535 .
[ 18 ] The Times
states that four other libel suits based on the advertisement have been filed
against it by others who have served as Montgomery City Commissioners and by the
Governor of Alabama: that another $500,000 verdict has been awarded in the only
one of these cases that has yet gone to trial; and that the damages sought in
the other three total $2,000,000.
[ 19 ] Even a
false statement may be deemed to make a valuable contribution to public debate,
since it brings about "the clearer perception and livelier impression of truth,
produced by its collision with error." Mill, On Liberty (Oxford: Blackwell,
1947), at 15; see also Milton, Areopagitica, in Prose Works (Yale, 1959), Vol.
II, at 561.
[ 20 ] E. g.,
Ponder v. Cobb, 257 N.C. 281, 299, 126 S. E. 2d 67, 80 (1962); Lawrence v. Fox,
357 Mich. 134, 146, 97 N. W. 2d 719, 725 (1959); Stice v. Beacon Newspaper
Corp., 185 Kan. 61, 65-67, 340 P.2d 396, 400-401 (1959); Bailey v. Charleston
Mail Assn., 126 W. Va. 292, 307, 27 S. E. 2d 837, 844 (1943); Salinger v.
Cowles, 195 Iowa 873, 889, 191 N. W. 167, 174 (1922); Snively v. Record
Publishing Co., 185 Cal. 565, 571-576, 198 P. 1 (1921); McLean v. Merriman, 42
S. D. 394, 175 N. W. 878 (1920). Applying the same rule to candidates for public
office, see, e. g., Phoenix Newspapers v. Choisser, 82 Ariz. 271, 276-277, 312
P.2d 150, 154 (1957); Friedell v. Blakely Printing Co., 163 Minn. 226, 230, 203
N. W. 974, 975 (1925). And see Chagnon v. Union-Leader Corp., 103 N. H. 426,
438, 174 A. 2d 825, 833 (1961), cert. denied, 369
U.S. 830 . The consensus of scholarly opinion apparently favors the rule
that is here adopted. E. g., 1 Harper and James, Torts, 5.26, at 449-450 (1956);
Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875,
891-895, 897, 903 (1949); Hallen, Fair Comment, 8 Tex. L. Rev. 41; 61 (1929);
Smith, Charges Against Candidates, 18 Mich. L. Rev. 1, 115 (1919); Chase,
Criticism of Public Officers and Candidates for Office, 23 Am. L. Rev. 346,
367-371 (1889); Cooley, Constitutional Limitations (7th ed., Lane, 1903), at
604, 616-628. But see, e. g., American Law Institute, Restatement of Torts, 598,
Comment a (1938) (reversing the position taken in Tentative Draft 13, 1041 (2)
(1936)); Veeder, Freedom of Public Discussion, 23 Harv. L. Rev. 413, 419 (1910).
[ 21 ] The
privilege immunizing honest misstatements of fact is often referred to as a
"conditional" privilege to distinguish it from the "absolute" privilege
recognized in judicial, legislative, administrative and executive proceedings.
See, e. g., Prosser, Torts (2d ed., 1955), 95.
[ 22 ] See 1
Harper and James, Torts, 5.23, at 429-430 (1956): Prosser, Torts (2d ed., 1955),
at 612-613; American Law Institute, Restatement of Torts (1938), 591.
[ 23 ] We have no
occasion here to determine how far down into the lower ranks of government
employees the "public official" designation would extend for purposes of this
rule, or otherwise to specify categories of persons who would or would not be
included. Cf. Barr v. Matteo, 360
U.S. 564, 573 -575. Nor need we here determine the boundaries of the
"official conduct" concept. It is enough for the present case that respondent's
position as an elected city commissioner clearly made him a public official, and
that the allegations in the advertisement concerned what was allegedly his
official conduct as Commissioner in charge of the Police Department. As to the
statements alleging the assaulting of Dr. King and the bombing of his home, it
is immaterial that they might not be considered to involve respondent's official
conduct if he himself had been accused of perpetrating the assault and the
bombing. Respondent does not claim that the statements charged him personally
with these acts; his contention is that the advertisement connects him with them
only in his official capacity as the Commissioner supervising the police, on the
theory that the police might be equated with the "They" who did the bombing and
assaulting. Thus, if these allegations can be read as referring to respondent at
all, they must be read as describing his performance of his official duties.
[ 24 ] Johnson
Publishing Co. v. Davis, 271 Ala. 474, 487, 124 So.2d 441, 450 (1960). Thus, the
trial judge here instructed the jury that "mere negligence or carelessness is
not evidence of actual malice or malice in fact, and does not justify an award
of exemplary or punitive damages in an action for libel." [376 U.S. 254, 284] The court refused,
however, to give the following instruction which had been requested by the
Times: "I charge you . . . that punitive damages, as the name indicates, are
designed to punish the defendant, the New York Times Company, a corporation, and
the other defendants in this case,. . . and I further charge you that such
punitive damages may be awarded only in the event that you, the jury, are
convinced by a fair preponderance of the evidence that the defendant . . . was
motivated by personal ill will, that is actual intent to do the plaintiff harm,
or that the defendant . . . was guilty of gross negligence and recklessness and
not of just ordinary negligence or carelessness in publishing the matter
complained of so as to indicate a wanton disregard of plaintiff's rights." The
trial court's error in failing to require any finding of actual malice for an
award of general damages makes it unnecessary for us to consider the sufficiency
under the federal standard of the instructions regarding actual malice that were
given as to punitive damages.
[ 25 ] Accord,
Coleman v. MacLennan, supra, 78 Kan., at 741, 98 P., at 292; Gough v.
Tribune-Journal Co., 75 Idaho 502, 510, 275 P.2d 663, 668 (1954).
[ 26 ] The
Seventh Amendment does not, as respondent contends, preclude such an examination
by this Court. That Amendment, providing that "no fact tried by a jury, shall be
otherwise reexamined in any Court of the United States, than according to the
rules of the common law," is applicable to state cases coming here. Chicago, B.
& Q. R. Co. v. Chicago, 166
U.S. 226, 242 -243; cf. The Justices v. Murray. 9 Wall. 274. But its ban on
re-examination of facts does not preclude us from determining whether governing
rules of federal law have been properly applied to the facts. "[T]his Court will
review the finding of facts by a State court . . . where a conclusion of law as
to a Federal right and a finding of fact are so intermingled as to make it
necessary, in order to pass upon the Federal question, to analyze the facts."
Fiske v. Kansas, 274
U.S. 380, 385 -386. See also Haynes v. Washington, 373
U.S. 503, 515 -516.
[ 27 ] The Times
has set forth in a booklet its "Advertising Acceptability Standards." Listed
among the classes of advertising that the newspaper does not accept are
advertisements that are "fraudulent or deceptive," that are "ambiguous in
wording and . . . may mislead," and that contain "attacks of a personal
character." In replying to respondent's interrogatories before the trial, the
Secretary of the Times stated that "as the advertisement made no attacks of a
personal character upon any individual and otherwise met the advertising
acceptability standards promulgated," it had been approved for publication.
[ 28 ]
Respondent's own testimony was that "as Commissioner of Public Affairs it is
part of my duty to supervise the Police Department and I certainly feel like it
[a statement] is associated with me when it describes police activities." He
thought that "by virtue of being [376 U.S. 254, 290] Police Commissioner and
Commissioner of Public Affairs," he was charged with "any activity on the part
of the Police Department." "When it describes police action, certainly I feel it
reflects on me as an individual." He added that "It is my feeling that it
reflects not only on me but on the other Commissioners and the community."
Grover C. Hall testified that to him the third paragraph of the advertisement
called to mind "the City government - the Commissioners," and that "now that you
ask it I would naturally think a little more about the police Commissioner
because his responsibility is exclusively with the constabulary." It was "the
phrase about starvation" that led to the association; "the other didn't hit me
with any particular force." Arnold D. Blackwell testified that the third
paragraph was associated in his mind with "the Police Commissioner and the
police force. The people on the police force." If he had believed the statement
about the padlocking of the dining hall, he would have thought "that the people
on our police force or the heads of our police force were acting without their
jurisdiction and would not be competent for the position." "I would assume that
the Commissioner had ordered the police force to do that and therefore it would
be his responsibility." Harry W. Kaminsky associated the statement about
"truckloads of police" with respondent "because he is the Police Commissioner."
He thought that the reference to arrests in the sixth paragraph "implicates the
Police Department, I think, or the authorities that would do that - arrest folks
for speeding and loitering and such as that." Asked whether he would associate
with respondent a newspaper report that the police had "beat somebody up or
assaulted them on the streets of Montgomery," he replied: "I still say he is the
Police Commissioner and those men are working directly under him and therefore I
would think that he would have something to do with it." In general, he said, "I
look at Mr. Sullivan when I see the Police Department." H. M. Price, Sr.,
testified that he associated the first sentence of the third paragraph with
respondent because: "I would just automatically consider that the Police
Commissioner in Montgomery [376 U.S. 254, 291] would have to put his
approval on those kind of things as an individual." William M. Parker, Jr.,
testified that he associated the statements in the two paragraph with "the
Commissioners of the City of Montgomery," and since respondent "was the Police
Commissioner," he "thought of him first." He told the examining counsel: "I
think if you were the Police Commissioner I would have thought it was speaking
of you." Horace W. White, respondent's former employer, testified that the
statement about "truck-loads of police" made him think of respondent "as being
the head of the Police Department." Asked whether he read the statement as
charging respondent himself with ringing the campus or having shotguns and
tear-gas, he replied: "Well, I thought of his department being charged with it,
yes, sir. He is the head of the Police Department as I understand it." He
further said that the reason he would have been unwilling to re-employ
respondent if he had believed the advertisement was "the fact that he allowed
the Police Department to do the things that the paper say he did."
[ 29 ] Compare
Ponder v. Cobb, 257 N.C. 281, 126 S. E. 2d 67 (1962).
[ 30 ] Insofar as
the proposition means only that the statements about police conduct libeled
respondent by implicitly criticizing his ability to run the Police Department,
recovery is also precluded in this case by the doctrine of fair comment. See
American Law Institute, Restatement of Torts (1938), 607. Since the Fourteenth
Amendment requires recognition of the conditional privilege for honest
misstatements of fact, it follows that a defense of fair comment must be
afforded for honest expression of opinion based upon privileged, as well as
true, statements of fact. Both defenses are of course defeasible if the public
official proves actual malice, as was not done here. [376 U.S. 254, 293]
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
I concur in reversing this half-million-dollar judgment against the New York
Times Company and the four individual defendants. In reversing the Court holds
that "the Constitution delimits a State's power to award damages for libel in
actions brought by public officials against critics of their official conduct."
Ante, p. 283. I base my vote to reverse on the belief that the First and
Fourteenth Amendments not merely "delimit" a State's power to award damages to
"public officials against critics of their official conduct" but completely
prohibit a State from exercising such a power. The Court goes on to hold that a
State can subject such critics to damages if "actual malice" can be proved
against them. "Malice," even as defined by the Court, is an elusive, abstract
concept, hard to prove and hard to disprove. The requirement that malice be
proved provides at best an evanescent protection for the right critically to
discuss public affairs and certainly does not measure up to the sturdy safeguard
embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse
exclusively on the ground that the Times and the individual defendants had an
absolute, unconditional constitutional right to publish in the Times
advertisement their criticisms of the Montgomery agencies and officials. I do
not base my vote to reverse on any failure to prove that these individual
defendants signed the advertisement or that their criticism of the Police
Department was aimed at the plaintiff Sullivan, who was then the Montgomery City
Commissioner having supervision of the city's police; for present purposes I
assume these things were proved. Nor is my reason for reversal the size of the
half-million-dollar judgment, large as it is. If Alabama has constitutional
power to use its civil libel law to impose damages on the press for criticizing
the way public officials perform or fail [376 U.S. 254, 294] to perform their duties,
I know of no provision in the Federal Constitution which either expressly or
impliedly bars the State from fixing the amount of damages.
The half-million-dollar verdict does give dramatic proof, however, that state
libel laws threaten the very existence of an American press virile enough to
publish unpopular views on public affairs and bold enough to criticize the
conduct of public officials. The factual background of this case emphasizes the
imminence and enormity of that threat. One of the acute and highly emotional
issues in this country arises out of efforts of many people, even including some
public officials, to continue state-commanded segregation of races in the public
schools and other public places, despite our several holdings that such a state
practice is forbidden by the Fourteenth Amendment. Montgomery is one of the
localities in which widespread hostility to desegregation has been manifested.
This hostility has sometimes extended itself to persons who favor desegregation,
particularly to so-called "outside agitators," a term which can be made to fit
papers like the Times, which is published in New York. The scarcity of testimony
to show that Commissioner Sullivan suffered any actual damages at all suggests
that these feelings of hostility had at least as much to do with rendition of
this half-million-dollar verdict as did an appraisal of damages. Viewed
realistically, this record lends support to an inference that instead of being
damaged Commissioner Sullivan's political, social, and financial prestige has
likely been enhanced by the Times' publication. Moreover, a second
half-million-dollar libel verdict against the Times based on the same
advertisement has already been awarded to another Commissioner. There a jury
again gave the full amount claimed. There is no reason to believe that there are
not more such huge verdicts lurking just around the corner for the Times or any
other newspaper or broadcaster which [376 U.S. 254, 295] might dare to criticize
public officials. In fact, briefs before us show that in Alabama there are now
pending eleven libel suits by local and state officials against the Times
seeking $5,600,000, and five such suits against the Columbia Broadcasting System
seeking $1,700,000. Moreover, this technique for harassing and punishing a free
press - now that it has been shown to be possible - is by no means limited to
cases with racial overtones; it can be used in other fields where public
feelings may make local as well as out-of-state newspapers easy prey for libel
verdict seekers.
In my opinion the Federal Constitution has dealt with this deadly danger to
the press in the only way possible without leaving the free press open to
destruction - by granting the press an absolute immunity for criticism of the
way public officials do their public duty. Compare Barr v. Matteo, 360
U.S. 564 . Stopgap measures like those the Court adopts are in my judgment
not enough. This record certainly does not indicate that any different verdict
would have been rendered here whatever the Court had charged the jury about
"malice," "truth," "good motives," "justifiable ends," or any other legal
formulas which in theory would protect the press. Nor does the record indicate
that any of these legalistic words would have caused the courts below to set
aside or to reduce the half-million-dollar verdict in any amount.
I agree with the Court that the Fourteenth Amendment made the First
applicable to the States. 1 This means to me
that since the adoption of the Fourteenth Amendment a State has no more power
than the Federal Government to use a civil libel law or any other law to impose
damages for merely discussing public affairs and criticizing public officials.
The power of the United [376 U.S. 254, 296] States to do that is, in
my judgment, precisely nil. Such was the general view held when the First
Amendment was adopted and ever since. 2 Congress never has
sought to challenge this viewpoint by passing any civil libel law. It did pass
the Sedition Act in 1798, 3 which made it a
crime - "seditious libel" - to criticize federal officials or the Federal
Government. As the Court's opinion correctly points out, however, ante, pp.
273-276, that Act came to an ignominious end and by common consent has generally
been treated as having been a wholly unjustifiable and much to be regretted
violation of the First Amendment. Since the First Amendment is now made
applicable to the States by the Fourteenth, it no more permits the States to
impose damages for libel than it does the Federal Government.
We would, I think, more faithfully interpret the First Amendment by holding
that at the very least it leaves the people and the press free to criticize
officials and discuss public affairs with impunity. This Nation of ours elects
many of its important officials; so do the States, the municipalities, the
counties, and even many precincts. These officials are responsible to the people
for the way they perform their duties. While our Court has held that some kinds
of speech and writings, such as "obscenity," Roth v. United States, 354
U.S. 476 , and "fighting words," Chaplinsky v. New Hampshire, 315
U.S. 568 , are not expression within the protection of the First Amendment,
4 freedom to
discuss public affairs and public officials [376 U.S. 254, 297] is unquestionably, as the
Court today holds, the kind of speech the First Amendment was primarily designed
to keep within the area of free discussion. To punish the exercise of this right
to discuss public affairs or to penalize it through libel judgments is to
abridge or shut off discussion of the very kind most needed. This Nation, I
suspect, can live in peace without libel suits based on public discussions of
public affairs and public officials. But I doubt that a country can live in
freedom where its people can be made to suffer physically or financially for
criticizing their government, its actions, or its officials. "For a
representative democracy ceases to exist the moment that the public
functionaries are by any means absolved from their responsibility to their
constituents; and this happens whenever the constituent can be restrained in any
manner from speaking, writing, or publishing his opinions upon any public
measure, or upon the conduct of those who may advise or execute it." 5 An unconditional
right to say what one pleases about public affairs is what I consider to be the
minimum guarantee of the First Amendment. 6
I regret that the Court has stopped short of this holding indispensable to
preserve our free press from destruction.
[ 1 ] See cases
collected in Speiser v. Randall, 357
U.S. 513, 530 (concurring opinion).
[ 2 ] See, e.
g., 1 Tucker, Blackstone's Commentaries (1803), 297-299 (editor's appendix). St.
George Tucker, a distinguished Virginia jurist, took part in the Annapolis
Convention of 1786, sat on both state and federal courts, and was widely known
for his writings on judicial and constitutional subjects.
[ 3 ] Act of
July 14, 1798, 1 Stat. 596.
[ 4 ] But see
Smith v. California, 361
U.S. 147, 155 (concurring opinion); Roth v. United States, 354
U.S. 476, 508 (dissenting opinion).
[ 5 ] 1 Tucker,
Blackstone's Commentaries (1803), 297 (editor's appendix); cf. Brant, Seditious
Libel: Myth and Reality, 39 N. Y. U. L. Rev. 1.
[ 6 ] Cf.
Meiklejohn, Free Speech and Its Relation to Self-Government (1948).
MR. JUSTICE GOLDBERG, with whom MR. JUSTICE DOUGLAS joins, concurring in the
result.
The Court today announces a constitutional standard which prohibits "a public
official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with [376 U.S. 254, 298] `actual malice' - that
is, with knowledge that it was false or with reckless disregard of whether it
was false or not." Ante, at 279-280. The Court thus rules that the Constitution
gives citizens and newspapers a "conditional privilege" immunizing nonmalicious
misstatements of fact regarding the official conduct of a government officer.
The impressive array of history 1 and precedent
marshaled by the Court, however, confirms my belief that the Constitution
affords greater protection than that provided by the Court's standard to citizen
and press in exercising the right of public criticism.
In my view, the First and Fourteenth Amendments to the Constitution afford to
the citizen and to the press an absolute, unconditional privilege to criticize
official conduct despite the harm which may flow from excesses and abuses. The
prized American right "to speak one's mind," cf. Bridges v. California, 314
U.S. 252, 270 , about public officials and affairs needs "breathing space to
survive," N. A. A. C. P. v. Button, 371
U.S. 415, 433 . The right should not depend upon a probing by the jury of
the motivation 2 of
the citizen or press. The theory [376 U.S. 254, 299] of our Constitution is
that every citizen may speak his mind and every newspaper express its view on
matters of public concern and may not be barred from speaking or publishing
because those in control of government think that what is said or written is
unwise, unfair, false, or malicious. In a democratic society, one who assumes to
act for the citizens in an executive, legislative, or judicial capacity must
expect that his official acts will be commented upon and criticized. Such
criticism cannot, in my opinion, be muzzled or deterred by the courts at the
instance of public officials under the label of libel.
It has been recognized that "prosecutions for libel on government have [no]
place in the American system of jurisprudence." City of Chicago v. Tribune Co.,
307 Ill. 595, 601, 139 N. E. 86, 88. I fully agree. Government, however, is not
an abstraction; it is made up of individuals - of governors responsible to the
governed. In a democratic society where men are free by ballots to remove those
in power, any statement critical of governmental action is necessarily "of and
concerning" the governors and any statement critical of the governors' official
conduct is necessarily "of and concerning" the government. If the rule that
libel on government has no place in our Constitution is to have real meaning,
then libel on the official conduct of the governors likewise can have no place
in our Constitution.
We must recognize that we are writing upon a clean slate. 3 As the Court notes,
although there have been [376 U.S. 254, 300] "statements of this Court
to the effect that the Constitution does not protect libelous publications . . .
[n]one of the cases sustained the use of libel laws to impose sanctions upon
expression critical of the official conduct of public officials." Ante, at 268.
We should be particularly careful, therefore, adequately to protect the
liberties which are embodied in the First and Fourteenth Amendments. It may be
urged that deliberately and maliciously false statements have no conceivable
value as free speech. That argument, however, is not responsive to the real
issue presented by this case, which is whether that freedom of speech which all
agree is constitutionally protected can be effectively safeguarded by a rule
allowing the imposition of liability upon a jury's evaluation of the speaker's
state of mind. If individual citizens may be held liable in damages for strong
words, which a jury finds false and maliciously motivated, there can be little
doubt that public debate and advocacy will be constrained. And if newspapers,
publishing advertisements dealing with public issues, thereby risk liability,
there can also be little doubt that the ability of minority groups to secure
publication of their views on public affairs and to seek support for their
causes will be greatly diminished. Cf. Farmers Educational & Coop. Union v.
WDAY, Inc., 360
U.S. 525, 530 . The opinion of the Court conclusively demonstrates the
chilling effect of the Alabama libel laws on First Amendment freedoms [376 U.S. 254, 301] in the area of race
relations. The American Colonists were not willing, nor should we be, to take
the risk that "[m]en who injure and oppress the people under their
administration [and] provoke them to cry out and complain" will also be
empowered to "make that very complaint the foundation for new oppressions and
prosecutions." The Trial of John Peter Zenger, 17 Howell's St. Tr. 675, 721-722
(1735) (argument of counsel to the jury). To impose liability for critical,
albeit erroneous or even malicious, comments on official conduct would
effectively resurrect "the obsolete doctrine that the governed must not
criticize their governors." Cf. Sweeney v. Patterson, 76 U.S. App. D.C. 23, 24,
128 F.2d 457, 458.
Our national experience teaches that repressions breed hate and "that hate
menaces stable government." Whitney v. California, 274
U.S. 357, 375 (Brandeis, J., concurring). We should be ever mindful of the
wise counsel of Chief Justice Hughes:
"[I]mperative is the need to
preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to
the end that government may be responsive to the will of the people and that
changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government." De
Jonge v. Oregon, 299
U.S. 353, 365 .
In many jurisdictions, legislators, judges and executive officers are clothed
with absolute immunity against liability for defamatory words uttered in the
discharge of their public duties. See, e. g., Barr v. Matteo, 360
U.S. 564 ; City of Chicago v. Tribune Co., 307 Ill., at 610, 139 N. E., at
91. Judge Learned Hand ably summarized the policies underlying the rule:
"It does indeed go without saying
that an official, who is in fact guilty of using his powers to vent his spleen
upon others, or for any other personal motive not connected with the public
good, should not escape liability for the injuries he may so cause; and, if it
were possible in practice to confine such complaints to the guilty, it would be
monstrous to deny recovery. The justification for doing so is that it is
impossible to know whether the claim is well founded until the [376 U.S. 254, 303] case has been tried, and
that to submit all officials, the innocent as well as the guilty, to the burden
of a trial and to the inevitable danger of its outcome, would dampen the ardor
of all but the most resolute, or the most irresponsible, in the unflinching
discharge of their duties. Again and again the public interest calls for action
which may turn out to be founded on a mistake, in the face of which an official
may later find himself hard put to it to satisfy a jury of his good faith. There
must indeed be means of punishing public officers who have been truant to their
duties; but that is quite another matter from exposing such as have been
honestly mistaken to suit by anyone who has suffered from their errors. As is so
often the case, the answer must be found in a balance between the evils
inevitable in either alternative. In this instance it has been thought in the
end better to leave unredressed the wrongs done by dishonest officers than to
subject those who try to do their duty to the constant dread of retaliation. . .
.
The conclusion that the Constitution affords the citizen and the press an
absolute privilege for criticism of official conduct does not leave the public
official without defenses against unsubstantiated opinions or deliberate
misstatements. "Under our system of government, counterargument and education
are the weapons available to expose these matters, not abridgment . . . of free
speech . . . ." Wood v. Georgia, 370
U.S. 375, 389 . The public [376 U.S. 254, 305] official certainly has
equal if not greater access than most private citizens to media of
communication. In any event, despite the possibility that some excesses and
abuses may go unremedied, we must recognize that "the people of this nation have
ordained in the light of history, that, in spite of the probability of excesses
and abuses, [certain] liberties are, in the long view, essential to enlightened
opinion and right conduct on the part of the citizens of a democracy." Cantwell
v. Connecticut, 310
U.S. 296, 310 . As Mr. Justice Brandeis correctly observed, "sunlight is the
most powerful of all disinfectants." 7
For these reasons, I strongly believe that the Constitution accords citizens
and press an unconditional freedom to criticize official conduct. It necessarily
follows that in a case such as this, where all agree that the allegedly
defamatory statements related to official conduct, the judgments for libel
cannot constitutionally be sustained.
[ 1 ] I fully
agree with the Court that the attack upon the validity of the Sedition Act of
1798, 1 Stat. 596, "has carried the day in the court of history," ante, at 276,
and that the Act would today be declared unconstitutional. It should be pointed
out, however, that the Sedition Act proscribed writings which were "false,
scandalous and malicious." (Emphasis added.) For prosecutions under the Sedition
Act charging malice, see, e. g., Trial of Matthew Lyon (1798), in Wharton, State
Trials of the United States (1849), p. 333: Trial of Thomas Cooper (1800), in
id., at 659; Trial of Anthony Haswell (1800), in id., at 684; Trial of James
Thompson Callender (1800), in id., at 688.
[ 2 ] The
requirement of proving actual malice or reckless disregard may, in the mind of
the jury, add little to the requirement of proving falsity, a requirement which
the Court recognizes not to be an adequate safeguard. The thought suggested by
Mr. Justice Jackson in United States v. Ballard, 322
U.S. 78, 92 -93, is relevant here: "[A]s a matter of either practice or
philosophy I do not see how [376 U.S. 254, 299] we can separate an issue
as to what is believed from considerations as to what is believable. The most
convincing proof that one believes his statements is to show that they have been
true in his experience. Likewise, that one knowingly falsified is best proved by
showing that what he said happened never did happen." See note 4, infra.
[ 3 ] It was not
until Gitlow v. New York, 268
U.S. 652 , decided in 1925, that it was intimated that the freedom of speech
guaranteed by [376 U.S.
254, 300]
the First Amendment was applicable to the States by reason of the
Fourteenth Amendment. Other intimations followed. See Whitney v. California, 274
U.S. 357 ; Fiske v. Kansas, 274
U.S. 380 . In 1931 Chief Justice Hughes speaking for the Court in Stromberg
v. California, 283
U.S. 359, 368 , declared: "It has been determined that the conception of
liberty under the due process clause of the Fourteenth Amendment embraces the
right of free speech." Thus we deal with a constitutional principle enunciated
less than four decades ago, and consider for the first time the application of
that principle to issues arising in libel cases brought by state officials.
[ 4 ] In most
cases, as in the case at bar, there will be little difficulty in distinguishing
defamatory speech relating to private conduct from that relating to official
conduct. I recognize, of course, that there will be a gray area. The
difficulties of applying a public-private standard are, however, certainly of a
different genre from those attending the differentiation between a malicious and
nonmalicious state of mind. If the constitutional standard is to be shaped by a
concept of malice, the speaker takes the risk not only that the jury will
inaccurately determine his state of mind but also that the jury will fail
properly to apply the constitutional standard set by the elusive concept of
malice. See note 2, supra.
[ 5 ] MR. JUSTICE
BLACK concurring in Barr v. Matteo, 360
U.S. 564, 577 , observed that: "The effective functioning of a free
government like ours depends largely on the force of an informed public opinion.
This calls for the widest possible understanding of the quality of government
service rendered by all elective or appointed public officials or employees.
Such an informed understanding depends, of course, on the freedom people have to
applaud or to criticize the way public employees do their jobs, from the least
to the most important."
[ 6 ] See notes
2, 4, supra.
[ 7 ] See Freund,
The Supreme Court of the United States (1949), p. 61. [376 U.S. 254, 306]