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New York Times Co. v. Sullivan, 376 U.S. 254
CourtListener ^ | March 9th, 1964 | Justice William Joseph Brennan Jr.

Posted on 11/30/2018 5:30:24 PM PST by conservatism_IS_compassion

. . . 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.

*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.”
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1, 4; De Jonge v. Oregon, 299 U.S. 353, *271 365. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

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.”
That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression *272 are to have the "breathing space" that they "need . . . to survive," N. A. A. C. P. v. Button, 371 U.S. 415, 433, was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U. S. App. D. C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman's libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:
"Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man's mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken from the field of free debate."[13]
Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and *273 reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U.S. 252. This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U.S. 367; Wood v. Georgia, 370 U.S. 375. If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, 331 U. S., at 376, surely the same must be true of other government officials, such as elected city commissioners.[14] Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

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 *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.
Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of government under which "The people, not the government, possess the absolute sovereignty." The structure of the government dispersed power in reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of government was "altogether different" from the British form, under which the Crown was sovereign and the people were subjects. "Is *275 it not natural and necessary, under such different circumstances," he asked, "that a different degree of freedom in the use of the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in the House of Representatives, Madison had said: "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." 4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said: "In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands . . . ." 4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental principle of the American form of government.[15]

*276 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 *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. *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 *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.)
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount— leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.[19] Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e. g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C. A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates. 49 Colo. L. Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." Speiser v. Randall, supra, 357 U. S., at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.

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 *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 *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." In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a general verdict was returned for the defendant. On appeal the Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P., at 286):

"It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.”
The court thus sustained the trial court's instruction as a correct statement of the law, saying:
“In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of *282 public concern, public men, and candidates for office." 78 Kan., at 723, 98 P., at 285.
Such a privilege for criticism of official conduct[21] is appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen. In Barr v. Matteo, 360 U.S. 564, 575, this Court held the utterance of a federal official to be absolutely privileged if made "within the outer perimeter" of his duties. The States accord the same immunity to statements of their highest officers, although some differentiate their lesser officials and qualify the privilege they enjoy.[22] But all hold that all officials are protected unless actual malice can be proved. The reason for the official privilege is said to be that the threat of damage suits would otherwise "inhibit the fearless, vigorous, and effective administration of policies of government" and "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Barr v. Matteo, supra, 360 U. S., at 571. Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's duty to administer. See Whitney v. California, 274 U.S. 357, 375 (concurring opinion of Mr. Justice Brandeis), quoted supra, p. 270. As Madison said, see supra, p. 275, "the censorial power is in the people over the Government, and not in the Government over the people." It would give public servants an unjustified preference over the public they serve, if critics of official conduct *283 did not have a fair equivalent of the immunity granted to the officials themselves.

We conclude that such a privilege is required by the First and Fourteenth Amendments.

III. 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 *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 *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 *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 *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 *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.)
There was no reference to respondent in the advertisement, either by name or official position. A number of the allegedly libelous statements—the charges that the dining hall was padlocked and that Dr. King's home was bombed, his person assaulted, and a perjury prosecution instituted against him—did not even concern the police; despite the ingenuity of the arguments which would attach this significance to the word "They," it is plain that these statements could not reasonably be read as accusing respondent of personal involvement in the acts *289 in question. The statements upon which respondent principally relies as referring to him are the two allegations that did concern the police or police functions: that "truckloads of police . . . ringed the Alabama State College Campus" after the demonstration on the State Capitol steps, and that Dr. King had been "arrested . . . seven times." These statements were false only in that the police had been "deployed near" the campus but had not actually "ringed" it and had not gone there in connection with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The ruling that these discrepancies between what was true and what was asserted were sufficient to injure respondent's reputation may itself raise constitutional problems, but we need not consider them here. Although the statements may be taken as referring to the police, they did not on their face make even an oblique reference to respondent as an individual. Support for the asserted reference must, therefore, be sought in the testimony of respondent's witnesses. But none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the Police Department and thus bore official responsibility for police conduct; to the extent that some of the witnesses thought respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion not on any statements in the advertisement, and not on any evidence that he had in fact been so involved, but solely on the unsupported assumption that, because of his official position, he must have been.[28] This reliance on the bare *290 fact of respondent's official position[29] was made explicit by the Supreme Court of Alabama. That court, in holding that the trial court "did not err in overruling the demurrer [of the Times] in the aspect that the libelous *291 matter was not of and concerning the [plaintiff,]" based its ruling on the proposition that:
“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." 273 Ala., at 674-675, 144 So. 2d. at 39.
This proposition has disquieting implications for criticism of governmental conduct. For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N. E. *292 86, 88 (1923). The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement. "reflects not only on me but on the other Commissioners and the community." Raising as it does the possibility that a good-faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.[30] We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations. Since it was relied on exclusively here, and there was no other evidence to connect the statements with respondent, the evidence was constitutionally insufficient to support a finding that the statements referred to respondent.

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.


TOPICS: Chit/Chat
KEYWORDS:
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.”
New York Times Co. v. Sullivan was a unanimous decision, with two concurrences expressing a desire by Justices Black, Douglas, and Goldberg for an even stronger opinion. The Court makes it extremely hard for a public official to sue for libel (or slander). And the case is made vigorously that free debate about government officials and their conduct is essential, and constitutionally protected from government.

But notwithstanding that, there is a gaping hole in the analysis undergirding Sullivan as generally applicable policy. The case before the Court was weak, in that the plaintiff hadn’t even been explicitly named in the advertisement complained of, and Mr. Sullivan was a southern Democrat contending with the uproar of the Civil Rights movement. As such, neither “liberals” (I still pine for the meaning of the term which applied to those of us now smeared as “conservatives”) nor Republicans were sympathetic to his political posture.

The limitation of the analysis is its assumption that because the government does not install " any kind of authoritative selection,” it follows that “conclusions" will "be gathered out of a multitude of tongues.” That is the objective of the First Amendment, undoubtedly - but to identify the purpose of a rule is not the same as identifying the effect of the rule. Especially when that rule is operating many, many decades after it was promulgated. The intent of the First Amendment is good, and the effect of the First Amendment is good - within limits. The problem faced by modern American polity is that of voluntary unanimity of voices, not compelled by law but enabled by a cartel.

It turns out that Adam Smith’s warning that "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices” applies with full force to journalists meeting, virtually but interminably, over the Associated Press “wire.” Before the advent of telegraphy and the wire services, printers of newspapers were ideological competitors. After decades of going along and getting along, that competitive system broke down, and journalists all call each other “objective.” The upshot is that Republicans get libeled at the drop of a hat (say rather, at the arrival of October in an election year) - and Democrats simply do not get libeled.

To say that 1A is not now achieving its purpose fully is not to call for its repeal but to say that it must not be turned against itself by using it to insulate journalists who are “conspir[ing] against the public” from the Sherman AntiTrust Act. If one conspirator lies and all the others swear to it, it is nonetheless and even more lamentably a lie.

Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U.S. 252. This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice.
IMHO consideration should be given to softening that stricture to allow for punishment of reckless criticism of judges for lodging allegations against judges which relate to crimes which were never proven and for which the statute of limitations is long past. On the basis that charges which are inherently unrefutable as well as unprovable amount to nothing more than mischief.

1 posted on 11/30/2018 5:30:24 PM PST by conservatism_IS_compassion
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To: boxlunch; ransomnote; IChing; Bratch; laplata; chiller; ebiskit; TenthAmendmentChampion; Obadiah; ..

Ping.


2 posted on 11/30/2018 5:32:22 PM PST by conservatism_IS_compassion
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To: conservatism_IS_compassion

Case facts:

“Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner’s newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department.”


3 posted on 11/30/2018 5:43:44 PM PST by Sasparilla ( I'm Not Tired of Winning)
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To: conservatism_IS_compassion

The classic actual malice case.


4 posted on 11/30/2018 5:50:27 PM PST by ArmstedFragg (So Long Obie)
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To: conservatism_IS_compassion

What is it you want people clicking on your posting to derive from this?


5 posted on 11/30/2018 5:50:33 PM PST by Enterprise
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To: conservatism_IS_compassion

BTTT


6 posted on 11/30/2018 11:03:02 PM PST by E.G.C.
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To: conservatism_IS_compassion

In Kansas City there was the famous case of a number of reinforcing steel fabricators meeting for lunch once a week. The meeting turned into a session where it was allegedly agreed which fabricator got which project allowing for price fixing.

I assume your point it that in the salesmanship of leftist dogma, the journalists are doing the same— the bottom line of Fake News is set at Hillary and everyday something to the left of Hillary is sold at a fixed degree of socialism.


7 posted on 12/01/2018 4:54:42 AM PST by KC Burke (If all the world is a stage, I would like to request my lighting be adjusted.)
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To: Enterprise
First, that altho Sullivan is objectionable to me, I understand the motives of the SCOTUS justices sitting in 1964 - all nine of them - in ruling as they did. I do not discern any partisanship in the decision, and strongly agree with the motive.

But, secondly, the Associated Press - indeed, wire services generally - have effects not contemplated by the author(s) of the First Amendment (who after all had no experience of even the possibility of a virtual meeting) and not considered at all in the Sullivan decision. Not considered, because nobody brought it up.

The conclusion is that a very different case, firmly based in antitrust law, should be brought to SCOTUS. That case would adduce proof (which abounds) that real, existing journalism as we know it is an engine of cynicism towards society and of promotion of government at the expense of liberty. That, far from providing the wisdom to be hoped for from " a multitude of tongues,” wire service journalism is a “borg” speaking with a single voice. And that a political party heeds that (single, de facto) voice, to the detriment of society. And that consequently the AP, perhaps all wire services, should be disbanded because of their homogenizing effect on journalism and because economizing on the use of telegraphy bandwidth is now of trivial benefit to society. And that now that the member news outlets of the AP have absorbed an ingrained culture of going along and getting along, they will remain suspect of colluding, even if the AP itself goes away.

IMHO, the Republican Party - the Trump Republican Party - must bring that case. The Paul Ryan/John McCain Republican Party would never have the guts to do it.


8 posted on 12/01/2018 7:53:45 AM PST by conservatism_IS_compassion
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To: conservatism_IS_compassion

Thank you.


9 posted on 12/01/2018 8:31:47 AM PST by Enterprise
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To: KC Burke
In Kansas City there was the famous case of a number of reinforcing steel fabricators meeting for lunch once a week. The meeting turned into a session where it was allegedly agreed which fabricator got which project allowing for price fixing.

I assume your point it that in the salesmanship of leftist dogma, the journalists are doing the same— the bottom line of Fake News is set at Hillary and everyday something to the left of Hillary is sold at a fixed degree of socialism.

Yes. IMHO the only thing that had to happen to turn the AP and its membership into a “borg” of likeminded people all selling the same thing was a fait accompli before the turn of the Twentieth Century.

In the mid-late Nineteenth Century, people started to question the concentration of propaganda power which the AP constituted. The AP’s defense was that it was comprised of its members, and (at the time, it was true) those member newspapers didn’t agree on much of anything. Therefore, the AP itself was objective.

That argument succeeded, because it had the ring of truth at the time. But ironically, the very act of claiming objectivity subverts any realistic effort toward objectivity. The trouble is that trying to be objective is a tough discipline, which is unnatural to even attempt. We all believe our own opinions, or they wouldn’t be our opinions. Attempting objectivity means scrutinizing your own motives, to see how where you stand might depend on where you sit. No fun at all.

So there you as a journalist are, being told that you are objective. And you realize that everyone who has any propaganda power at all will keep on saying you are objective - as long as you go along and get along with them. Nirvana! You don’t have to examine your motives, you just have to never question any other journalist’s objectivity, as long as no other journalist questions yours or any other journalist’s. If they do, you are duty bound to join in the mob of journalists who will “stone” the offender to (career) death with charges that the offender is “not a journalist, not objective.”

IMHO the “If it bleeds, it leads” rule for commercial success in journalism suffices to explain that journalism is negative - and the paradox of the self-negating claim of objectivity changes mere negativity into cynicism. That cynicism, directed at society, translates into naiveté towards the institution which exists to limit evil in society - government. Nothing else can come of that but a propaganda wind at the back of socialists.


10 posted on 12/01/2018 8:51:39 AM PST by conservatism_IS_compassion
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The New York Times Co. v. Sullivan, 376 U.S. 254 SCOTUS decision made it nearly impossible for a Democrat or Republican politician to sue for slander/libel. If you read that 9-0 decision you will see a pean of praise for the idea that diversity of published viewpoints must be protected vigorously. As written, it is difficult to disagree with - and 3 justices wanted to go even further than Sullivan did.

But Sullivan is a poor precedent, because of what was not on the table. What was not on the table, because nobody was thinking about it back then, was the reality of modern journalism. Which is, and has been for a very long time, that journalism is not a cacophony of politically diverse perspectives, but quite the contrary.

As Adam Smith wrote in Wealth of Nations, "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” People of the trade of journalism continually meet, virtually, over the wire services - and wire services began before the Civil War.

So much for the question of “opportunity” for journalists to collude. What about motive?

The man whom we believe is necessarily, in the things concerning which we believe him, our leader and director, and we look up to him with a certain degree of esteem and respect. But as from admiring other people we come to wish to be admired ourselves; so from being led and directed by other people we learn to wish to become ourselves leaders and directors . . .

The desire of being believed, the desire of persuading, of leading and directing other people, seems to be one of the strongest of all our natural desires. - Adam Smith, Theory of Moral Sentiments (1759)

In furtherance of their desire to influence people, journalists claim to be objective. But being objective, tho a laudable goal, is difficult to the point of impossibility, and is unnatural. Naturally, we all believe our own opinions are right - or they wouldn’t be our opinions. Yet any good-faith effort at being objective must start with serious scrutiny of the possibility that in fact where we stand is influenced by where we sit. And nobody likes to do that. Unexamined subjectivity is everyone’s default position.

But if journalists can conspire together, they have the opportunity to evade that difficulty. All they need do is form a mutual admiration society of journalists in good standing. Instead of trying, uncomfortably, to be objective, they then can be called objective as long as they reciprocate and call all other journalists objective. That, and join a mob of others to “stone” the career of anyone claims to be a journalist but does not go along and get along with the club by agreeing that all journalists are objective.

All that is hiding in plain sight - and was, truth be told, in 1964. But nobody much was on the case of “bias in the media” back then. Well, not in any serious, systematic way. For sure the journalists weren’t talking about it; they still aren’t. There has to be a case brought against “the media” for AntiTrust violations.

The First Amendment was right, but not enough. 1A is protection of the reading public from de jure restriction of what they get an opportunity to read. AntiTrust enforcement is necessary to protect the reading public from de facto restriction of what they get (a realistic chance) to read. And above all, the government (see, the FCC and FEC in particular) must not put its imprimatur on anyone’s opinions, whether expressed or implied.


11 posted on 12/05/2018 3:33:20 PM PST by conservatism_IS_compassion
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To: conservatism_IS_compassion
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 with "actual malice"—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
Note, Dear Reader, that the “relating to his official conduct” issue is entirely absent from the attacks on Justice Kavanaugh’s reputation for sexual probity based on novel allegations of claims of Kavanaugh misconduct which putatively (and improbably) occurred long before Mr. Kavanaugh was a public official.

The idea that Kavanaugh's character assassins have nothing to fear from libel law if Kavanaugh were to sue seems meretricious.


12 posted on 09/19/2019 10:34:13 AM PDT by conservatism_IS_compassion (Socialism is cynicism directed towards society and - correspondingly - naivete towards government.)
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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. *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.
There is one ever-so-minor problem with that formulation: the text of the First Amendment says absolutely nothing about the right to sue for libel.

And the right to sue for libel fits neatly into

Amendment 9:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In fact, 1A does not refer to a blanket “freedom . . . of the press” but to "the freedom . . . of the press” - freedom of the press as it existed before the enactment of the Constitution or the First Amendment.

“Freedom,” that is, as limited by libel and pornography prohibitions.


13 posted on 10/22/2019 10:45:44 AM PDT by conservatism_IS_compassion (Socialism is cynicism directed towards society and - correspondingly - naivete towards government.)
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To: PGalt
Scalia argued his view on “textualism” was the ultimate defense of the First Amendment. In March 2012, an Associated Press report said he told an audience at Wesleyan University that the Court’s early justices would be “astonished that the notion of the Constitution changes to mean whatever each successive generation would like it to mean. … In fact, it would be not much use to have a First Amendment, for example, if the freedom of speech included only what some future generation wanted it to include. That would guarantee nothing at all.”

That opinion didn’t prevent Scalia from harsh criticism of what is widely viewed as one of the essential court rulings protecting free speech and a free press — the 1964 decision in New York Times Co. v. Sullivan.

At the Newseum in the Aspen Institute 2011 Washington Ideas Forum, Scalia said the landmark ruling meant “you can libel public figures without liability so long as you are relying on some statement from a reliable source, whether it’s true or not.

“Now the old libel law used to be (that) you’re responsible, you say something false that harms somebody’s reputation, we don’t care if it was told to you by nine bishops, you are liable,” Scalia said. “New York Times v. Sullivan just cast that aside because the Court thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry. And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, ‘Yes, we’re going to change our libel law.’”

But in Times v. Sullivan, Scalia said the Supreme Court, under Justice Earl Warren, “… simply decided, ‘Yes, it used to be that … George Washington could sue somebody that libeled him, but we don’t think that’s a good idea anymore.’”

JUSTICE SCALIA: THE 45 WORDS — AND ORIGINAL MEANING — OF THE FIRST AMENDMENT


14 posted on 10/22/2019 6:50:05 PM PDT by conservatism_IS_compassion (Socialism is cynicism directed towards society and - correspondingly - naivete towards government.)
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To: conservatism_IS_compassion

WOW! Thanks so much for you education efforts, knowledge of history, opinions, c_I_c. BUMP-TO-THE-TOP!


15 posted on 10/25/2019 10:52:23 AM PDT by PGalt
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“Half the truth is often a great lie” - Benjamin Franklin

Since nobody ever tells the whole truth - “Ain’t nobody got time for that” - the attitude and perspective of the writer has to color any report.

The decision to withdraw rather than correct a story when the villain of the piece turns out to be a Democrat instead of a Republican simply reveals that the editor of the publication favors the Democrat Party. There’s no law against that - and there shouldn’t be, and under the First Amendment there can’t be. But.

The actual problem is the existence of the journalism cartel, spontaneously generated by the wire services and empowered by the Warren Court’s unanimous - unanimously wrong - 1964 New York Times Co. v. Sullivan decision.

Objection to the claim that American journalism is a cartel is fatuous. Evidence which can be criticized as “anecdotal“ abounds, but what cannot be refuted is that the wire services constitute continual virtual meetings of all major US journalism. “Meetings” which began before the Civil War and are ongoing with not end in sight. The logical implication is drawn by Adam Smith: People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” It is naive to believe that journalists whose entire culture is defined by meeting among themselves about business - and who belong to organizations with names like “Associated” Press or “United” Press International - would not take behavior which is actually “conspiracy against the public” for granted as unexceptionable “business as usual.”

The wire services and their member/subscriber outlets are wide open for antitrust suits or prosecution.

To see the “conspiracy against the public,” it is logical to evaluate the actual business model of journalism. Journalism is actually about bad news. Consequently journalism is systematically negative - which naturally tends to imply that “the government should do something” about one situation or another. Journalism is negative towards society, but claims to be objective. But claiming that “negativity is objectivity” is nothing if not a description of cynicism.

The cartel’s claim of objectivity has the effect of redefining “objectivity” to mean cynicism towards society (and naiveté towards government). The cartel systematically rejects applying the term “objective” to anyone outside the cartel - and systematically labels that member of the cartel “objective.” But the cynical conspiracy doesn’t end there; the cartel also redefines every politically positive adjective - starting with “liberal,” but including “centrist,” “moderate,” and “progressive” - to mean exactly what they make “objective” mean (differing from “objective" only in the usage the cartel will allow).

The cartel eliminates ideological competition among journalists. The Sullivan decision - which eliminates libel suits by Republican government officials (“liberals” obviously don’t get libeled) - entitles “liberals” and “objective journalists” not only to their own opinions but to their own facts. And that is the engine of Political Correctness; Republicans are denied any peaceable venue to establish facts not congenial to “liberals.”

The fallacy of the Sullivan decision is that it justifies itself with the claim that ‘'libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.” One is tempted to take that at face value, but Antonin Scalia pointed out that The Bill of Rights was intentionally structured not to compromise the right to sue for libel. The purpose of the entire BoR was to assure everyone that the Constitution did not compromise any right; the great project of the creation of the strong Federal Government depended on the success of that project. The Ninth Amendment practically says exactly that, and the wording “the freedom . . . of the press” in the First Amendment refers to traditional freedom of the press as traditionally limited (by libel and pornography laws, for example).


16 posted on 11/21/2019 5:39:25 AM PST by conservatism_IS_compassion (Socialism is cynicism directed towards society and - correspondingly - naivete towards government.)
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