The constitutional calculus of libel: Public officials and the high bar of actual malice

“ One may be punished criminally or mulcted in damages civilly for physical assault. Libel is an assault upon that invisible and intangible thing known as reputation. Though invisible and intangible, it exists among men and is prized, and the law protects it. As has been said by this court, libel rests upon the thought that a public wrong has been committed; an act has been done in violation of the statute, to the hurt of the complaining citizen. A citizen’s right to remain secure in his good name and reputation among his fellows, and to enjoy their confidence and esteem, has been violated. ”

“ Men receive impressions of and concerning others from what they hear others say about them. Libel is a tort. It consists in a wrong done to the good name, fame, and reputation of another. It is in the nature of an assault upon the good name, fame, and reputation of another. The law protects a man in the possession of his good name, and denies to others the right, wrongfully and wickedly, to make an assault upon it. It is often the only asset a man has. ”

“ It follows, therefore, that libel is an assault upon character resulting in some injury to reputation. The injury must be traceable to the assault, and the damage must be the proximate result of the injury. Every one recognizes the blighting effect of scandalous utterances directed against the character, conduct, or reputation of men. Every one recognizes that such assaults, publicly made, tend injuriously to affect the reputation and standing of the one so assailed among his fellows. ”

“ Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends [p722] to disturb the public peace and to provoke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication.
To prohibit the intent to excite those unfavorable sentiments against those who administer the Government is equivalent to a prohibition of the actual excitement of them, and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect, 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. ”

“ The language of the public authorities in America would be, "If the government is not contemptible, it will only gain strength from attacks; if it be contemptible, the citizens have a right to prove it so, and to demand a change: it is their duty to discuss the point, and to settle it by reason, and not to suppress it by indictment." ”

“ 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 [p284] with the federal rule. "The power to create presumptions is not a means of escape from constitutional restrictions," Bailey v. ”

“ 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. ”

“ But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. ”

“ The prohibitory duty, therefore, on political periodicals must be considered as a scheme, emanating from a bad heart and weak head, to favour despotism. That law which requires publishers and printers of newspapers to enter into heavy securities, to answer to the consequences of the remote contingency of a LIBEL,—that is, publishing any thing having a tendency to bring either house of parliament or his majesty's ministers into contempt,—must ever operate perniciously to the cause of freedom. ”

“ It is any published matter that tends to disgrace or degrade a person generally, or to subject him to public distrust, ridicule, or contempt. Any written article that implies or may be generally understood to imply reproach, dishonesty, scandal, or ridicule of or against a person, or which tends to subject such a person to social disgrace, public distrust, hatred, ridicule, or contempt, is libelous. ”

“ The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable, if the statements are false or are true only of some one else. See Morasse v. Brochu, 151 Massachusetts, 567, 575.
The question, then, is whether the publication was a libel. It was held by the Circuit Court of Appeals not to be, or at most to entitle the plaintiff only to nominal damages, no special damage being alleged. ”

“ Actionable words are doubtless such as naturally imply damage to the party; but it must be borne in mind that there is a marked distinction between slander and libel, and that many things are actionable when written or printed and published which would not be actionable if merely spoken, without averring and proving special damage. ”

“ The very speaking of such words, apart from all damage, constitutes a wrong and gives rise to a cause of action. The law in such a case, as in the case of libel, presumes, and in theory allows, proof of general damage. But slander, even if actionable in itself, is regarded as differing 857from libel in a point which renders proof of general damage in slander cases difficult to be made good. A person who publishes defamatory matter on paper or in print puts in circulation that which is more permanent and more easily transmissible than oral slander. ”

“ Certain words, all admit, are in themselves actionable, because the natural consequence of what they impute to the party is damage, as if they import a charge that the party has been guilty of a criminal offence involving moral turpitude, or that the party is infected with a contagious distemper, or if they are prejudicial in a pecuniary sense to a person in office or to a person engaged as a livelihood in a profession or trade; but in all other cases the party who brings an action for words must show the damage he or she has suffered by the false speaking of the other party. ”

“ It may be that the action for libel is of little use, but while it is maintained it should be governed by the general principles of tort. If the advertisement obviously would hurt the plaintiff in the estimation of an important and respectable part of the community, liability is not a question of a majority vote.
We know of no decision in which this matter is discussed upon principle. But obviously an unprivileged falsehood need not entail universal hatred to constitute a cause of action. No falsehood is thought about or even known by all the world. No conduct is hated by all. ”

“ But if there be not that duty or interest which in law creates the privilege, then, though the person making the statements may have acted from the best of motives, and felt it his duty to make them, he is none the less liable. The gist of the action is that the statement was false and defamatory. Because in a strictly limited class of cases the law allows the defence that the statements were made in good faith, it seems to me, with all deference, illogical to affirm that malice constitutes one of the elements of the torts known to the law as libel and slander. ”

“ But I apprehend that the person taking proceedings was saved from liability if he acted in good faith because it was thought that men might otherwise be too much deterred from enforcing the law, and that this would be disadvantageous to the public. Some of the learned judges cite actions of libel and slander as instances in which the legal liability depends on the presence or absence of malice. I think this is a mistake. The man who defames another by false allegations is liable to an action, however good his motive, and however honestly he believed in the statement he made. ”

“ So, when the description which points out the plaintiff is supposed by the defendant to point out another man whom in fact it does not describe, the defendant is equally liable as when the description is supposed to point out nobody. On the general principles of tort, the publication is so manifestly detrimental that the defendant publishes it at the peril of being able to justify it in the sense in which the public will understand it.
A man may be liable civilly, and formerly, at least by the common law of England, even criminally, for publishing a libel without knowing it. ”

“ 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. ”

“ If 'reckless disregard of the truth' is the basis of seditious libel, that nebulous standard could be easily met. The presence of 'actual malice' is made critical in seditious libel, as well as in civil actions involving charges against public officials, when in truth there is nothing in the Constitution about it, any more than there is about 'clear and present danger.'
While the First Amendment remains the same, the gloss which the Court has written on it in this field of the discussion of public issues robs it of much vitality. ”

“ At the outset, we must decide whether, in view of the differing history and purposes of criminal libel, the New York Times rule also limits state power to impose criminal sanctions for criticism of the official conduct of public officials. We hold that it does.
Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws, and therefore should not be subject to the same limitations. [3] At common law, truth was no defense to criminal libel. ”

“ We next consider whether the historical limitation of the defense of truth in criminal libel to utterances published 'with good motives and for justifiable ends' [7] should be incorporated into the New York Times rule as it applies to criminal libel statutes; in particular, we must ask whether this history permits negating the truth defense, as the Louisiana statute does, on a showing of malice in the sense of ill-will. The 'good motives' restriction incorporated in many state constitutions and statutes to reflect Alexander Hamilton's unsuccessfully urged formula in People v. ”

“ Our law of libel has in many respects only gradually developed itself into anything like satisfactory and settled form. The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized.” And then the passage goes on,—“Even in quite recent days judges, in holding the publication 718of the proceedings of courts of justice lawful, have thought it necessary to distinguish what we call ex parte proceedings as a probable exception from the operation of the rule. ”

“ I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable. [513] But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest. ”

“ Are they to be told that the criticism of a play is a privileged occasion, within the well-settled meaning of the word “privilege,” and that their verdict must go for the defendant, unless the plaintiff can prove malice in fact, that is, that the writer of the article was actuated by an indirect or malicious motive? ”

“ However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this: Would any fair man, however prejudiced he may be, however exaggerated or obstinate his view, have said that which this criticism has said of the work which is criticised? If it goes beyond that, then you must find for the plaintiff; if you are not satisfied that it does, then it falls within the allowed limit, and there is no libel at all. ”

“ The right, though shared by the public, is the right of every individual who asserts it, and is, qua him, an individual right whatever name it be called by, and comment by him which is colored by malice cannot from his standpoint be deemed fair. He, and he only, is the person in whose motives the plaintiff in the libel action is concerned, and if he, the person sued, is proved to have allowed his view to be distorted by malice, it is quite immaterial that somebody else might without malice have written an equally damnatory criticism. The defendant, and not that other person, is the party sued. ”

“ Nothing is more vain, than, at a distant time, to examine the motives of discrimination and partiality; for the inquirer, having considered interest and policy, is obliged, at last, to admit more frequent and more active motives of human conduct, caprice, accident, and private affections. ”

“ That an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title. To support it actual damage must be shown, for it is an action which only lies in respect of such damage as has actually occurred. ”

“ Such a loss the law does not consider as an injury; because it is a loss which the party ought to sustain. It is in short the loss of fame and profits to which he was never entitled. Nothing can be conceived more threatening to the liberty of the press than the species of action before the court. We ought to resist an attempt against free and liberal criticism at the threshold.—The Chief Justice concluded by directing the jury, that if the writer of the publication complained of had not travelled out of the work he criticised for the purpose of slander, the action would not lie ”

“ But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions. Id., pp. 883, 884. The law of criminal libel rests upon that secure foundation. There is also the conceded authority of courts to punish for contempt when publications directly tend to prevent the proper discharge of judicial functions. ”