John Marshall Harlan II

“ State of Louisiana, supra, quoted in the opinion of the Court makes clear that the only interest in protecting falsehood is to give added 'breathing space' to truth. It is undeniable that falsity may be published, especially in the political arena, with what may be considered 'good' motives-for example a good-faith belief in the absolute necessity of defeating an 'evil' candidate. ”

“ Hill could find a forum for making a successful refutation of the Life material or that the public's interest in it would be sufficient for the truth to win out by comparison as it might in that area of discussion central to a free society. ”

“ For the Court finds the subject of the Life article 'a matter of public interest.' And it states that ' (e) xposure of the self to others in varying degrees is a concomitant of life in a civilized community.' Thus it could not permit New York to allow compensation for mere exposure unless it is holding, as I am sure it is not, that the presence of some reckless falsehood in written material strips it of all constitutional protection. ”

“ Similarly it may be strongly contended that certain facts are of such limited public interest and so intimate and potentially embarrassing to an individual that the State may exercise its power to deter publication. ”

“ Hill might not be anxious to rebut the falsehood because it might increase his harm from exposure is equally applicable to libel actions where the opportunity to rebut may be limited by fear of reiterating the libel. And this factor emphasizes, rather than lessens, the state interest in discouraging falsehood for it increases the likelihood that falsity will continue to circulate to the detriment of some when truth should be encouraged 'for the benefit of all of us.'↑ A negligence standard has been applied in libel actions both where the underlying facts are alleged to be libelous, Layne v. ”

“ Similarly the press should not be constitutionally insulated from privacy actions brought by parties in the position of Mr. Hill when reasonable care has not been taken in ascertaining or communicating the underlying facts or where the publisher has not kept within the traditional boundaries of 'fair comment' with relation to underlying facts and honest opinion. ”

“ It may be argued that other professions are distinguishable because practitioners may insure against liability. But this course is also open to the press. Developments in the Law, Defamation, 69 Harv.L.Rev. 875, 906.↑ This Court has never held that the press has an absolute privilege to publish falsity. There is nothing in the history of the First Amendment, or the Fourteenth, to indicate that the authors contemplated restrictions on the ability of private persons to seek legal redress for press-inflicted injury. ”

“ To me this seems a clear recognition of the fact that falsehood is more easily tolerated where public attention creates the strong likelihood of a competition among ideas. Here such competition is extremely unlikely for the scrutiny and discussion of the relationship of the Hill incident and the play is 'occasioned by the particular charges in controversy' and the matter is not one in which the public has an 'independent interest.' It would be unreasonable to assume that Mr. ”