William J. Brennan, Jr.

“ Surely the opinion must recognize the existence of the deep-rooted policy of the common law generally to provide redress against defamation. But the opinion in sweeping terms extinguishes that remedy, if the defamation is committed by a federal official, by erecting the barrier of an absolute privilege. In my view, only a qualified privilege is necessary here, and that is all I would afford the officials. A qualified privilege would be the most the law would allow private citizens under comparable circumstances. ”

“ A qualified privilege, as I have described, would, in giving the official protection against the consequences of his honest mistakes, give him all the protection he could properly claim. As is quoted, if that were all that there were to the matter, it would be indeed 'monstrous' to grant the absolute defense and preclude all examination of the matter at the suit of a citizen claiming legal injury. ”

“ Such a burden is hardly one peculiar to public officers; citizens generally go through life subject to the risk that they may, though in the right, be subject to litigation and the possibility of a miscarriage of justice. It is one of the goals of a well-operating legal system to keep the burden of litigation and the risks of such miscarriages to a minimum; in this area, which is govened by federal law, proof of malice outside of the bare fact of the making of the statement should be forthcoming, [5] and summary judgment practice offers protection to the defendant ”