Thurgood Marshall

“ The unlimited discretion exercised by juries in awarding punitive and presumed damages compounds the problem of self-censorship that necessarily results from the awarding of huge judgments. This discretion allows juries to penalize heavily the unorthodox and the unpopular and exact little from others. Such free wheeling discretion presents obvious and basic threats to society's interest in freedom of the press. And the utility of the discretion in fostering society's interest in protecting individuals from defamation is at best vague and uncertain. ”

“ These doctrines create a legal presumption that substantial injuries 'normally flow' from defamation. There is no requirement that there be even an offer of proof that there was in fact financial loss, physical or emotional suffering, or that the plaintiff's standing in the community was diminished. The effect is to give the jury essentially unlimited discretion and thus to give much the same power it exercises under the labels of punitive or exemplary damages. The impingement upon free speech is the same no matter what label is attached. ”

“ As the plurality recognizes here and as was recognized as the basic premise of the New York Times principle, the threat that defamation law presents for the values encompassed in the concept of freedom of the press is that of self- censorship. [5] Our notions of liberty require a free and vigorous press that presents what it believes to be information of interest or importance; not timorous, afraid of an error that leaves it open to liability for hundreds of thousands of dollars. ”