Description: Printed or broadcast defamation, which entails false statements holding an individual up to ridicule, contempt, or hatred, or causing an individual to be avoided by others.
Significance: Libel law is an attempt to balance individuals’ interest in reputation against the media's freedom of the press. In 1964 the Supreme Court began to shift from favoring individuals to favoring the media in cases involving libel.
Victims of libel, or defamatory false statements, sue the media for damages. Courts award monetary compensation to victims for the injury they suffered and stipulate punitive measures to chastise the press and thereby deter it and media companies from libeling others. The Supreme Court long considered defamatory statements irrelevant to the First Amendment because the statements did not contribute to the exposition of ideas and search for truth envisioned by those who wrote the amendment. The limited value of the statements was outweighed by the need to protect individuals’ reputation. Therefore, the Court allowed states to fashion libel law as they saw fit, and it rarely heard libel cases. One exception was Beauharnais v. Illinois (1952), which involved “group libel” (later called “hate speech”). The Court upheld the law.
In New York Times Co. v. Sullivan (1964), the Court, under Chief Justice Earl Warren, began to shift the balance in libel doctrine toward the media. In the early 1960's, the police commissioner of Montgomery, Alabama, sued The New York Times for printing an ad, with minor inaccuracies, bought by black clergymen protesting the treatment of civil rights demonstrators in the city. Although the ad did not mention the police commissioner by name or title, he claimed that it attacked him implicitly. Although he did not claim that it caused him any injury, he did not have to under state law, and the jury awarded him half a million dollars. Another county commissioner sued The New York Times for the same ad and was also awarded half a million dollars. By the time the case reached the Court, eleven more libel suits had been brought by local or state officials in Alabama against The New York Times or the Columbia Broadcasting Service for seven million dollars. There was nothing unusual about Alabama's law, which resembled other states’ laws. The justices, then, could see that libel laws could be used by public officials to punish the press for criticism in this case, a northern newspaper for coverage of southern race relations even if the inaccuracies were minor and the officials suffered no real injury. The Court's ruling made it harder for plaintiffs who were public officials to win libel suits. It established the actual malice test, which requires plaintiffs to prove that the defamatory statements were made with knowledge of their falsity or with reckless disregard for their truth or falsity. This standard is somewhat ambiguous, but the Court made clear that recklessness is beyond carelessness, which is the usual basis for establishing negligence in lawsuits. Despite its name, the test does not revolve around the everyday meaning of the word “malice.” The plaintiff does not have to show maliciousness; and even if the plaintiff does show maliciousness, this showing by itself does not meet the test. A reporter can be “out to get” an official, publish defamatory statements, and still not be found guilty of actual malice. Maliciousness is relevant only if it helps the official prove that the reporter knew the statements were false or published them with reckless disregard for their truth or falsity. The Court recognized that this test would allow the press to publish more false statements but insisted that this result was necessary to allow breathing room so the press can enjoy its full rights under the First Amendment.
Application of the Test
The Court solidified its ruling by applying the actual malice test to an array of public officials, including judges (Garrison v. Louisiana, 1964); county attorneys (Henry v. Collins, 1965), court clerks (Beckley Newspapers v. Hanks, 1967), and law enforcement officers, including police on the beat (St. Amant v. Thompson, 1968, and Time v. Pape, 1971). In applying the test to the manager of a small county-owned and -operated ski area, the Court showed how far down the ranks of public employees its definition of public officials would extend. The Court also solidified its ruling by indicating that reckless disregard meant having serious doubts about the truth of the statements in St. Amant. Even being extremely sloppy would not be considered reckless. At the same time, the Warren Court extended its ruling by applying the actual malice test to public figures in 1967 in Curtis Publishing Co. v. Butts and Associated Press v. Walker. Public figures are people who are well known or who have sought public attention. The Court's justifications were that the distinction between the public and private sectors has blurred and that public figures, like public officials, often play an influential role in society and also have sufficient access to the media to rebut any false accusations against them. This ruling made it harder for public figures to win libel suits. The Warren Court classified as public figures a university athletic director, who was not paid by the state and therefore not a public official (Curtis) and a retired air force general (Associated Press). The Court, under Chief Justice Warren E. Burger, classified as public figures a real estate developer who was engaged in a controversy with the local school board (Greenbelt Cooperative Publishing v. Bresler, 1970) and candidates for public office (Monitor Patriot Co. v. Roy, 1971, and Ocala Star-Banner v. Damron, 1971). A plurality of the early Burger Court sought to extend The New York Times doctrine by applying the actual malice test to private persons embroiled in public issues (Rosenbloom v. Metromedia, 1971). They maintained that people are all public persons to some degree and that public officials and public figures are private persons in some ways. The key was whether public issues were involved. If so, the press should feel free to report on these issues for the public's benefit. The plurality's views, if adopted by a majority of the justices, would have made it harder for private persons to win libel suits. As more holdovers from the Warren Court retired from the Burger Court, the new majority concluded that the balance had tipped too far toward the First Amendment and away from guarding the reputations of private persons. In 1974 a majority ruled that private persons, even if embroiled in public controversies, would not have to meet the actual malice test to win compensatory damages. (States could set the exact standard, but plaintiffs would have to show at least negligence by the press.) However, they would still have to prove actual malice to win punitive damages (Gertz v. Robert Welch, 1974). The justices sympathized with private persons’ desires to be compensated for any injuries they suffered but not their efforts to be awarded additional, punitive damages, which often were sizable and unrelated to the severity of the injuries. With this ruling, the Burger Court completed the process of nationalizing and constitutionalizing libel law making the law conform to certain national constitutional standards, rather than allowing it to develop through the process of state common law that the Warren Court began in The New York Times. The Burger Court also began to define the public figure category narrowly. The Court held that plaintiffs could be considered public figures if they have general fame or notoriety to the people exposed to the defamatory statements. In Gertz, a lawyer who was well known in legal and civic circles in Chicago was not known by the general population of the city, so he was not deemed a public figure. A socialite in Palm Beach, Florida, who was so prominent that she subscribed to a local clipping service, was not known outside of her community, so she was not deemed a public figure in a lawsuit against a national publication (Time v. Firestone, 1976). Alternatively, the Court held that plaintiffs could be considered public figures if they thrust themselves into a public controversy. However, a lawyer who represented a family who sued a police officer in a controversial case (Gertz) and a scientist who applied for federal funds for research (Hutchinson v. Proxmire, 1979) were not classified as public figures. The Court ruled that they were doing their jobs rather than thrusting themselves into public controversies. Thus, these plaintiffs, as private persons, did not need to meet the actual malice test to win compensatory damages. The Burger Court also clarified the point that public issues must be involved before the constitutional standards developed in libel cases could be invoked by the defendants in libel suits. Dun and Bradstreet, which had issued an inaccurate credit report, argued that as a widely known company, it should be considered a public figure (and, therefore, the plaintiff would be forced to prove actual malice). However, the Court insisted that this was a private dispute, rather than a public issue, and as such Dun and Bradstreet was not entitled to any First Amendment protection in Dun and Bradstreet v. Greenmoss Builders (1985).
The Rehnquist Court
Under the guidance of Chief Justice William H. Rehnquist, the Court held that companies can be considered public figures if the dispute involves a public issue. Bose Corporation sued Consumer Reports for a magazine article critical of the sound of Bose speakers. The article addressed a subject of interest to the public, so it was considered a public issue and Bose Corporation was deemed a public figure (Bose Corp. v. Consumers Union of the United States, 1984). Although the Rehnquist Court reversed or eroded many rulings made by the Warren and Burger Courts, it maintained protection for media defendants in decisions involving the burden of proof in libel suits in Philadelphia Newspapers v. Hepps (1986) and Anderson v. Liberty Lobby (1986) and the attempt to circumvent libel law by suing for torts that have easier standards for plaintiffs in Hustler Magazine v. Falwell (1988). In Masson v. New Yorker Magazine (1991) the Court gave leeway to reporters, when quoting individuals, to clarify or condense direct quotations as long as reporters do not materially alter the meaning of the statements. For statements to be considered defamatory, they must be capable of being proven false. The Rehnquist Court found that they must have been asserted as facts, rather than mere opinions in Milkovich v. Lorain Journal Co. (1990). Accordingly, it found that parodies cannot be defamatory, even if they humiliate their subjects in Hustler Magazine v. Falwell. The Supreme Court's doctrinal changes beginning in 1964 reduced the total number of libel suits filed and also the success rate for plaintiffs who are public officials or figures. Only one out of ten of these plaintiffs wins his or her suit.
- Two comprehensive and up-to-date works on libel are Peter A. Downard's Libel (Dayton, Ohio: LexisNexis/Butterworths, 2003) and Gatley on Libel and Slander, edited by Patrick Milmo and others (10th ed. London: Sweet & Maxwell, 2004). Anthony Lewis's Make No Law (New York: Random House, 1991) is a readable case study of New York Times Co. v. Sullivan. Harry Kalven, one of the foremost First Amendment scholars at the time, analyzed the landmark case in “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’” Supreme Court Review (1964): 191. James Kirby's Fumble (New York: Dell, 1986) is a fascinating case study of Curtis Publishing Co. v. Butts. Kirby, a lawyer hired by the Southeastern Conference to investigate the allegations that gave rise to the suit--that two college coaches conspired to fix a football game between their teams--reports his conclusions. Renata Adler's Reckless Disregard (New York: Alfred A. Knopf, 1986) examines a pair of prominent cases that never reached the Supreme Court--the libel suits of U.S. general William Westmoreland against the Columbia Broadcasting Service and Israeli general Ariel Sharon against Time. The decisions of juries in these and other libel suits are examined in Trial by Jury (New York: Simon & Schuster, 1990), edited by Stephen Brill, which shows the difficulty jurors have when asked to apply the actual malice test. The impact of the Court's decisions involving public officials and figures is analyzed in Randall Bezanson, Gilbert Cranberg, and John Soloski's Libel Law and the Press (New York: Free Press, 1987). Proposed reforms in libel law are addressed in Lois Forer's A Chilling Effect (New York: Norton, 1988).