William J. Brennan, Jr.

“ This theory of recovery was open to respondent under New Hampshire law; the trial judge explicitly instructed the jury that 'an imputation of impropriety or a crime to one or some of a small group that cast suspicion upon all is actionable.' [3] The question is presented, however, whether that theory of recovery is precluded by our holding in New York Times that, in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations. ”

“ The public interests protected by the New York Times rule are interests in discussion, not retaliation, and our reference to Barr should be taken to mean no more than that the scope of the privilege is to be determined by reference to the functions it serves. ”

“ To be sure, there may be cases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times rule. ”

“ To the extent the trial judge authorized the jury to award respondent a recovery without regard to evidence that the asserted implication of the column was made specifically of and concerning him, we hold that the instruction was erroneous. [6] Here, no explicit charge of peculation was made; no assault on the previous management appears. The jury was permitted to award damages upon a finding merely that respondent was one of a small group acting for an organ of government, only some of whom were implicated, but all of whom were tinged with suspicion. ”

“ There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. ”

“ In effect, this permitted the jury to find liability merely on the basis of his relationship to the government agency, the operations of which were the subject of discussion. It is plain that the elected Commissioners, also members of that group, would have been barred from suit on this theory under New York Times. They would be required to show specific reference. Whether or not respondent was a public official, as a member of the group he bears the same burden. ”

“ Society has a pervasive and strong interest in preventing and redressing attacks upon reputation. But in cases like the present, there is tension between this interest and the values nurtured by the First and Fourteenth Amendments. ”

“ The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scruting and discussion occasioned by the particular charges in controversy.↑ It is not seriously contended, and could not be, that the fact respondent no longer supervised the Area when the column appeared has decisional significance here. ”