U.S. Supreme Court Gertz v. Robert Welch, Inc., 418
U.S. 323 (1974) Gertz v. Robert Welch,
Inc. No. 72-617 Argued November 14,
1973 Decided June 25, 1974 418
U.S. 323 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH
CIRCUIT Syllabus A Chicago policeman named Nuccio was convicted of murder. The
victim's family retained petitioner, a reputable attorney, to
represent them in civil litigation against Nuccio. An article
appearing in respondent's magazine alleged that Nuccio's murder
trial was part of a Communist conspiracy to discredit the local
police, and it falsely stated that petitioner had arranged Nuccio's
"frameup," implied that petitioner had a criminal record, and
labeled him a "Communist-fronter." Petitioner brought this
diversity libel action against respondent. After the jury returned
a verdict for petitioner, the District Court decided that the
standard enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 ,
which bars media liability for defamation of a public official
absent proof that the defamatory statements were published with
knowledge of their falsity or in reckless disregard of the truth,
should apply to this suit. The court concluded that that standard
protects media discussion of a public issue without regard to
whether the person defamed is a public official as in New York
Times Co. v. Sullivan, supra, or a public figure, as in Curtis Publishing Co. v. Butts, 388 U.
S. 130 . The court found that petitioner had failed to
prove knowledge of falsity or reckless disregard for the truth, and
therefore entered judgment n.o.v. for respondent. The
Court of Appeals affirmed. Held: 1. A publisher or broadcaster of defamatory falsehoods about an
individual who is neither a public official nor a public figure may
not claim the New York Times protection against liability
for defamation on the ground that the defamatory statements concern
an issue of public or general interest. Pp. 418 U. S.
339 -348.

															(a) Because private individuals characteristically have less
effective opportunities for rebuttal than do public officials and
public figures, they are more vulnerable to injury from defamation.
Because they have not voluntarily exposed themselves to increased
risk of injury from defamatory falsehoods, they are also more
deserving of recovery. The state interest in compensating Page 418 U. S. 324 injury to the reputation of private individuals is therefore
greater than for public officials and public figures. Pp. 418 U. S.
343 -345.

															(b) To extend the New York Times standard to media
defamation of private persons whenever an issue of general or
public interest is involved would abridge to an unacceptable degree
the legitimate state interest in compensating private individuals
for injury to reputation and would occasion the additional
difficulty of forcing courts to decide on an ad hoc basis
which publications and broadcasts address issues of general or
public interest and which do not. Pp. 418 U. S.
345 -346.

															(c) So long as they do not impose liability without fault, the
States may define for themselves the appropriate standard of
liability for a publisher or broadcaster of defamatory falsehood
which injures a private individual and whose substance makes
substantial danger to reputation apparent. Pp. 418 U. S.
347 -348.

															2. The States, however, may not permit recovery of presumed or
punitive damages when liability is not based on knowledge of
falsity or reckless disregard for the truth, and the private
defamation plaintiff who establishes liability under a less
demanding standard than the New York Times test may
recover compensation only for actual injury. Pp. 418 U. S.
348 -350.

															3. Petitioner was neither a public official nor a public figure.
Pp. 418 U. S.
351 -352.

															(a) Neither petitioner's past service on certain city committees
nor his appearance as an attorney at the coroner's inquest into the
death of the murder victim made him a public official. P. 418 U. S.
351 .

															(b) Petitioner was also not a public figure. Absent clear
evidence of general fame or notoriety in the community and
pervasive involvement in ordering the affairs of society, an
individual should not be deemed a public figure for all aspects of
his life. Rather, the public figure question should be determined
by reference to the individual's participation in the particular
controversy giving rise to the defamation. Petitioner's role in the
Nuccio affair did not make him a public figure. Pp. 418 U. S.
351 -352.

															471 F.2d 801, reversed and remanded.

															POWELL, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. BLACKMUN, J., filed
a concurring opinion, post, p. 418 U. S. 353 .
BURGER, C.J., post, p. 418 U. S. 354 ,
DOUGLAS, J., post, p. 418 U. S. 355 ,
BRENNAN, J., post, p. 418 U. S. 361 ,
and WHITE, J., post, p. 418 U. S. 369 ,
filed dissenting opinions. Page 418 U. S. 325 MR. JUSTICE POWELL delivered the opinion of the Court.

															This Court has struggled for nearly a decade to define the
proper accommodation between the law of defamation and the freedoms
of speech and press protected by the First Amendment. With this
decision we return to that effort. We granted certiorari to
reconsider the extent of a publisher's constitutional privilege
against liability for defamation of a private citizen. 410 U.S. 925
(1973). I In 1968, a Chicago policeman named Nuccio shot and killed a
youth named Nelson. The state authorities prosecuted Nuccio for the
homicide and ultimately obtained a conviction for murder in the
second degree. The Nelson family retained petitioner Elmer Gertz, a
reputable attorney, to represent them in civil litigation against
Nuccio.

															Respondent publishes American Opinion, a monthly outlet for the
views of the John Birch Society. Early in the 1960's, the magazine
began to warn of a nationwide conspiracy to discredit local law
enforcement agencies and create in their stead a national police
force capable of supporting a Communist dictatorship. As part of
the continuing effort to alert the public to this assumed danger,
the managing editor of American Opinion commissioned an article on
the murder trial of Officer Nuccio. For this purpose, he engaged a
regular contributor to the magazine. In March, 1969, respondent
published the resulting article under the title "FRAME-UP:
Richard Page 418 U. S. 326 Nuccio And The War On Police." The article purports to
demonstrate that the testimony against Nuccio at his criminal trial
was false, and that his prosecution was part of the Communist
campaign against the police.

															In his capacity as counsel for the Nelson family in the civil
litigation, petitioner attended the coroner's inquest into the
boy's death and initiated actions for damages, but he neither
discussed Officer Nuccio with the press nor played any part in the
criminal proceeding. Notwithstanding petitioner's remote connection
with the prosecution of Nuccio, respondent's magazine portrayed him
as an architect of the "frame-up." According to the article, the
police file on petitioner took "a big, Irish cop to lift." The
article stated that petitioner had been an official of the

															"Marxist League for Industrial Democracy, originally known as
the Intercollegiate Socialist Society, which has advocated the
violent seizure of our government."

															It labeled Gertz a "Leninist" and a "Communist-fronter." It also
stated that Gertz had been an officer of the National Lawyers
Guild, described as a Communist organization that "probably did
more than any other outfit to plan the Communist attack on the
Chicago police during the 1968 Democratic Convention."

															These statements contained serious inaccuracies. The implication
that petitioner had a criminal record was false. Petitioner had
been a member and officer of the National Lawyers Guild some 15
years earlier, but there was no evidence that he or that
organization had taken any part in planning the 1968 demonstrations
in Chicago. There was also no basis for the charge that petitioner
was a "Leninist" or a "Communist-fronter." And he had never been a
member of the "Marxist League for Industrial Democracy" or the
"Intercollegiate Socialist Society." Page 418 U. S. 327 The managing editor of American Opinion made no effort to verify
or substantiate the charges against petitioner. Instead, he
appended an editorial introduction stating that the author had
"conducted extensive research into the Richard Nuccio Case." And he
included in the article a photograph of petitioner and wrote the
caption that appeared under it: "Elmer Gertz of Red Guild harasses
Nuccio." Respondent placed the issue of American Opinion containing
the article on sale at newsstands throughout the country and
distributed reprints of the article on the streets of Chicago.

															Petitioner filed a diversity action for libel in the United
States District Court for the Northern District of Illinois. He
claimed that the falsehoods published by respondent injured his
reputation as a lawyer and a citizen. Before filing an answer,
respondent moved to dismiss the complaint for failure to state a
claim upon which relief could be granted, apparently on the ground
that petitioner failed to allege special damages. But the court
ruled that statements contained in the article constituted libel per se under Illinois law, and that, consequently,
petitioner need not plead special damages. 306 F.
Supp. 310 (1969).

															After answering the complaint, respondent filed a pretrial
motion for summary judgment, claiming a constitutional privilege
against liability for defamation. [ Footnote 1 ] It asserted that petitioner was a public
official or a public figure, and that the article concerned an
issue of public interest and concern. For these reasons, respondent
argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan, 376 U.
S. 254 (1964). Under this rule, respondent would escape
liability unless Page 418 U. S. 328 petitioner could prove publication of defamatory falsehood "with actual malice' -- that is, with knowledge that it was false or
with reckless disregard of whether it was false or not." Id. at 376 U. S. 280 .
Respondent claimed that petitioner could not make such a showing,
and submitted a supporting affidavit by the magazine's managing
editor. The editor denied any knowledge of the falsity of the
statements concerning petitioner, and stated that he had relied on
the author's reputation and on his prior experience with the
accuracy and authenticity of the author's contributions to American
Opinion. The District Court denied respondent's motion for summary
judgment in a memorandum opinion of September 16, 1970. The court
did not dispute respondent's claim to the protection of the New
York Times standard. Rather, it concluded that petitioner
might overcome the constitutional privilege by making a factual
showing sufficient to prove publication of defamatory falsehood in
reckless disregard of the truth. During the course of the trial,
however, it became clear that the trial court had not accepted all
of respondent's asserted grounds for applying the New York
Times rule to this case. It thought that respondent's claim to
the protection of the constitutional privilege depended on the
contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing Co. v. Butts, 388 U.
S. 130 (1967), apparently discounting the argument that
a privilege would arise from the presence of a public issue. After
all the evidence had been presented but before submission of the
case to the jury, the court ruled, in effect, that petitioner was
neither a public official nor a public figure. It added that, if he
were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because
some statements in the article constituted libel per
se Page 418 U. S. 329 under Illinois law, the court submitted the case to the jury
under instructions that withdrew from its consideration all issues
save the measure of damages. The jury awarded $50,000 to
petitioner.

															Following the jury verdict and on further reflection, the
District Court concluded that the New York Times standard
should govern this case even though petitioner was not a public
official or public figure. It accepted respondent's contention that
that privilege protected discussion of any public issue without
regard to the status of a person defamed therein. Accordingly, the
court entered judgment for respondent notwithstanding the jury's
verdict. [ Footnote 2 ] This
conclusion anticipated the reasoning Page 418 U. S. 330 of a plurality of this Court in Rosenbloom v. Metromedia,
Inc., 403 U. S. 29 (1971).

															Petitioner appealed to contest the applicability of the New
York Times standard to this case. Although the Court of
Appeals for the Seventh Circuit doubted the correctness of the
District Court's determination that petitioner was not a public
figure, it did not overturn that finding. [ Footnote 3 ] It agreed with the District Court that
respondent could assert the constitutional privilege because the
article concerned a matter of public interest, citing this Court's
intervening decision in Rosenbloom v. Metromedia, Inc.,
supra. The Court of Appeals read Rosenbloom to require
application of the New York Times standard to any
publication or broadcast about an issue of significant public
interest, without regard to the position, fame, or anonymity of the
person defamed, and it concluded that respondent's statements Page 418 U. S. 331 concerned such an issue. [ Footnote 4 ] After reviewing the record, the Court of
Appeals endorsed the District Court's conclusion that petitioner
had failed to show by clear and Page 418 U. S. 332 convincing evidence that respondent had acted with "actual
malice" as defined by New York Times. There was no
evidence that the managing editor of American Opinion knew of the
falsity of the accusations made in the article. In fact, he knew
nothing about petitioner except what he learned from the article.
The court correctly noted that mere proof of failure to
investigate, without more, cannot establish reckless disregard for
the truth. Rather, the publisher must act with a " high degree
of awareness of . . . probable falsity.'" St. Amant v.
Thompson, 390 U. S. 727 , 390 U. S. 731 (1968); accord, Beckley Newspapers Corp. v. Hanks, 389 U. S. 81 , 389 U. S. 84 -85
(1967); Garrison v. Louisiana, 379 U. S.
64 , 379 U. S. 75 -76
(1964). The evidence in this case did not reveal that respondent
had cause for such an awareness. The Court of Appeals therefore
affirmed, 471 F.2d 801 (1972). For the reasons stated below, we
reverse. II The principal issue in this case is whether a newspaper or
broadcaster that publishes defamatory falsehoods about an
individual who is neither a public official nor a public figure may
claim a constitutional privilege against liability for the injury
inflicted by those statements. The Court considered this question
on the rather different set of facts presented in Rosenbloom v.
Metromedia, Inc., 403 U. S. 29 (1971). Rosenbloom, a distributor of nudist magazines, was arrested
for selling allegedly obscene material while making Page 418 U. S. 333 a delivery to a retail dealer. The police obtained a warrant and
seized his entire inventory of 3,000 books and magazines. He sought
and obtained an injunction prohibiting further police interference
with his business. He then sued a local radio station for failing
to note in two of its newscasts that the 3,000 items seized were
only "reportedly" or "allegedly" obscene and for broadcasting
references to "the smut literature racket" and to "girlie book
peddlers" in its coverage of the court proceeding for injunctive
relief. He obtained a judgment against the radio station, but the
Court of Appeals for the Third Circuit held the New York
Times privilege applicable to the broadcast, and reversed. 415
F.2d 892 (1969).

															This Court affirmed the decision below, but no majority could
agree on a controlling rationale. The eight Justices [ Footnote 5 ] who participated in Rosenbloom announced their views in five separate
opinions, none of which commanded more than three votes. The
several statements not only reveal disagreement about the
appropriate result in that case, they also reflect divergent
traditions of thought about the general problem of reconciling the
law of defamation with the First Amendment. One approach has been
to extend the New York Times test to an expanding variety
of situations. Another has been to vary the level of constitutional
privilege for defamatory falsehood with the status of the person
defamed. And a third view would grant to the press and broadcast
media absolute immunity from liability for defamation. To place our
holding in the proper context, we preface our discussion of this
case with a review of the several Rosenbloom opinions and
their antecedents.

															In affirming the trial court's judgment in the instant case, the
Court of Appeals relied on MR. JUSTICE BRENNAN's Page 418 U. S. 334 conclusion for the Rosenbloom plurality that "all
discussion and communication involving matters of public or general
concern," 403 U.S. at 403 U. S. 44 ,
warrant the protection from liability for defamation accorded by
the rule originally enunciated in New York Times Co. v.
Sullivan, 376 U. S. 254 (1964). There, this Court defined a constitutional privilege
intended to free criticism of public officials from the restraints
imposed by the common law of defamation. The Times ran a political
advertisement endorsing civil rights demonstrations by black
students in Alabama and impliedly condemning the performance of
local law enforcement officials. A police commissioner established
in state court that certain misstatements in the advertisement
referred to him, and that they constituted libel per se under Alabama law. This showing left the Times with the single
defense of truth, for, under Alabama law, neither good faith nor
reasonable care would protect the newspaper from liability. This
Court concluded that a "rule compelling the critic of official
conduct to guarantee the truth of all his factual assertions" would
deter protected speech, id. at 376 U. S. 279 ,
and announced the constitutional privilege designed to counter that
effect:

															"The constitutional guarantees require, we think, a federal rule
that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he
proves that the statement was made with 'actual malice' -- that is,
with knowledge that it was false or with reckless disregard of
whether it was false or not. " Id. at 376 U. S.
279 -280. [ Footnote
6 ] Page 418 U. S. 335 Three years after New York Times, a majority of the
Court agreed to extend the constitutional privilege to defamatory
criticism of "public figures." This extension Page 418 U. S. 336 was announced in Curtis Publishing Co. v. Butts and its
companion, Associated Press v. Walker, 388 U.
S. 130 , 388 U. S. 162 (1967). The first case involved the Saturday Evening Post's charge
that Coach Wally Butts of the University of Georgia had conspired
with Coach "Bear" Bryant of the University of Alabama to fix a
football game between their respective schools. Walker involved an erroneous Associated Pres account of former Major
General Edwin Waler's participation in a University of Mississippi
campus riot. Because Butts was paid by a private alumni association
and Walker had resigned from the Army, neither could be classified
as a "public official" under New York Times. Although Mr.
Justice Harlan announced the result in both cases, a majority of
the Court agreed with Mr. Chief Justice Warren's conclusion that
the New York Times test should apply to criticism of
"public figures" as well as "public officials." [ Footnote 7 ] The Court extended the
constitutional Page 418 U. S. 337 privilege announced in that case to protect defamatory criticism
of nonpublic persons who

															"are nevertheless intimately involved in the resolution of
important public questions or, by reason of their fame, shape
events in areas of concern to society at large." Id. at 388 U. S. 164 (Warren, C.J., concurring in result).

															In his opinion for the plurality in Rosenbloom v.
Metromedia, Inc., 403 U. S. 29 (1971), MR. JUSTICE BRENNAN took the New York Times privilege one step further. He concluded that its protection should
extend to defamatory falsehoods relating to private persons if the
statements concerned matters of general or public interest. He
abjured the suggested distinction between public officials and
public figures, on the one hand, and private individuals, on the
other. He focused instead on society's interest in learning about
certain issues:

															"If a matter is a subject of public or general interest, it
cannot suddenly become less so merely because a private individual
is involved, or because in some sense the individual did not
'voluntarily' choose to become involved." Id. at 403 U. S. 43 .
Thus, under the plurality opinion, a private citizen involuntarily
associated with a matter of general interest has no recourse for
injury to his reputation unless he can satisfy the demanding
requirements of the New York Times test.

															Two Members of the Court concurred in the result in Rosenbloom, but departed from the reasoning of the
plurality. Mr. Justice Black restated his view, long shared by MR.
JUSTICE DOUGLAS, that the First Amendment cloaks the news media
with an absolute and indefeasible immunity from liability for
defamation. Id. at 403 U. S. 57 . MR
JUSTICE WHITE concurred on a narrower ground. Ibid. He
concluded that

															"the First Amendment gives the press and the broadcast media a
privilege to report and comment upon the official actions of
public Page 418 U. S. 338 servants in full detail, with no requirement that the reputation
or the privacy of an individual involved in or affected by the
official action be spared from public view." Id. at 403 U. S. 62 . He
therefore declined to reach the broader questions addressed by the
other Justices.

															Mr. Justice Harlan dissented. Although he had joined the opinion
of the Court in New York Times, in Curtis Publishing
Co., he had contested the extension of the privilege to public
figures. There, he had argued that a public figure who held no
governmental office should be allowed to recover damages for
defamation

															"on a showing of highly unreasonable conduct constituting an
extreme departure from the standards of investigation and reporting
ordinarily adhered to by responsible publishers."

															388 U.S. at 388 U. S. 155 .
In his Curtis Publishing Co. opinion, Mr. Justice Harlan
had distinguished New York Times primarily on the ground
that defamation actions by public officials "lay close to seditious
libel. . . ." Id. at 388 U. S. 153 .
Recovery of damages by one who held no public office, however,
could not "be viewed as a vindication of governmental policy." Id. at 388 U. S. 154 .
Additionally, he had intimated that, because most public officials
enjoyed absolute immunity from liability for their own defamatory
utterances under Barr v. Matteo, 360 U.
S. 564 (1959,), they lacked a strong claim to the
protection of the courts.

															In Rosenbloom, Mr. Justice Harlan modified these views.
He acquiesced in the application of the privilege to defamation of
public figures, but argued that a different rule should obtain
where defamatory falsehood harmed a private individual. He noted
that a private person has less likelihood "of securing access to
channels of communication sufficient to rebut falsehoods concerning
him" than do public officials and public figures, 403 U.S. at 403 U. S. 70 ,
and has not voluntarily placed himself in the Page 418 U. S. 339 public spotlight. Mr. Justice Harlan concluded that the States
could constitutionally allow private individuals to recover damages
for defamation on the basis of any standard of care except
liability without fault.

															MR. JUSTICE MARSHALL dissented in Rosenbloom in an
opinion joined by MR. JUSTICE STEWART. Id. at 403 U. S. 78 . He
thought that the plurality's "public or general interest" test for
determining the applicability of the New York Times privilege would involve the courts in the dangerous business of
deciding "what information is relevant to self-government." Id. at 403 U. S. 79 . He
also contended that the plurality's position inadequately served
"society's interest in protecting private individuals from being
thrust into the public eye by the distorting light of defamation." Ibid. MR. JUSTICE MARSHALL therefore reached the
conclusion, also reached by Mr. Justice Harlan, that the States
should be "essentially free to continue the evolution of the common
law of defamation and to articulate whatever fault standard best
suits the State's need," so long as the States did not impose
liability without fault. Id. at 403 U. S. 86 .
The principal point of disagreement among the three dissenters
concerned punitive damages. Whereas Mr. Justice Harlan thought that
the States could allow punitive damages in amounts bearing "a
reasonable and purposeful relationship to the actual harm done . .
. ," id. at 403 U. S. 75 ,
MR. JUSTICE MARSHALL concluded that the size and unpredictability
of jury awards of exemplary damages unnecessarily exacerbated the
problems of media self-censorship, and that such damages should
therefore be forbidden. III We begin with the common ground. Under the First Amendment,
there is no such thing as a false idea. However pernicious an
opinion may seem, we depend for its correction not on the
conscience of judges and juries, but Page 418 U. S. 340 on the competition of other ideas. [ Footnote 8 ] But there is no constitutional value in false
statements of fact. Neither the intentional lie nor the careless
error materially advances society's interest in "uninhibited,
robust? and wide-open" debate on public issues. New York Times
Co. v. Sullivan, 376 U.S. at 376 U. S. 270 .
They belong to that category of utterances which

															"are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social
interest in order and morality." Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S. 572 (1942).

															Although the erroneous statement of fact is not worthy of
constitutional protection, it is nevertheless inevitable in free
debate. As James Madison pointed out in the Report on the Virginia
Resolutions of 1798: "Some degree of abuse is inseparable from the
proper use of every thing; and in no instance is this more true
than in that of the press." 4 J. Elliot, Debates on the Federal
Constitution of 1787, p. 571 (1876). And punishment of error runs
the risk of inducing a cautious and restrictive exercise of the
constitutionally guaranteed freedoms of speech and press. Our
decisions recognize that a rule of strict liability that compels a
publisher or broadcaster to guarantee the accuracy of his factual
assertions may lead to intolerable self-censorship. Allowing the
media to avoid liability only by proving the truth of all injurious
statements does not accord adequate protection to First Amendment
liberties. As the Court stated in New York Times Co. v.
Sullivan, supra, at 376 U. S.
279 :

															"Allowance of the defense of truth, Page 418 U. S. 341 with the burden of proving it on the defendant, does not mean
that only false speech will be deterred."

															The First Amendment requires that we protect some falsehood in
order to protect speech that matters.

															The need to avoid self-censorship by the news media is, however,
not the only societal value at issue. If it were, this Court would
have embraced long ago the view that publishers and broadcasters
enjoy an unconditional and indefeasible immunity from liability for
defamation. See New York Times Co. v. Sullivan, supra, at 376 U. S. 293 (Black, J., concurring); Garrison v. Louisiana, 379 U.S.
at 379 U. S. 80 (DOUGLAS, J., concurring); Curtis Publishing Co. v. Butts, 388 U.S. at 388 U. S. 170 (opinion of Black, J.). Such a rule would, indeed, obviate the fear
that the prospect of civil liability for injurious falsehood might
dissuade a timorous press from the effective exercise of First
Amendment freedoms. Yet absolute protection for the communications
media requires a total sacrifice of the competing value served by
the law of defamation.

															The legitimate state interest underlying the law of libel is the
compensation of individuals for the harm inflicted on them by
defamatory falsehood. We would not lightly require the State to
abandon this purpose, for, as MR. JUSTICE STEWART has reminded us,
the individual's right to the protection of his own good name

															"reflects no more than our basic concept of the essential
dignity and worth of every human being -- a concept at the root of
any decent system of ordered liberty. The protection of private
personality, like the protection of life itself, is left primarily
to the individual States under the Ninth and Tenth Amendments. But
this does not mean that the right is entitled to any less
recognition by this Court as a basic of our constitutional
system." Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 92 (1966) (concurring opinion). Page 418 U. S. 342 Some tension necessarily exists between the need for a vigorous
and uninhibited press and the legitimate interest in redressing
wrongful injury. As Mr. Justice Harlan stated,

															"some antithesis between freedom of speech and press and libel
actions persists, for libel remains premised on the content of
speech and limits the freedom of the publisher to express certain
sentiments, at least without guaranteeing legal proof of their
substantial accuracy." Curtis Publishing Co. v. Butts, supra, at 388 U. S. 152 .
In our continuing effort to define the proper accommodation between
these competing concerns, we have been especially anxious to assure
to the freedoms of speech and press that "breathing space"
essential to their fruitful exercise. NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 (1963). To that end, this Court has extended a measure of strategic
protection to defamatory falsehood.

															The New York Times standard defines the level of
constitutional protection appropriate to the context of defamation
of a public person. Those who, by reason of the notoriety of their
achievements or the vigor and success with which they seek the
public's attention, are properly classed as public figures and
those who hold governmental office may recover for injury to
reputation only on clear and convincing proof that the defamatory
falsehood was made with knowledge of its falsity or with reckless
disregard for the truth. This standard administers an extremely
powerful antidote to the inducement to media self-censorship of the
common law rule of strict liability for libel and slander. And it
exacts a correspondingly high price from the victims of defamatory
falsehood. Plainly, many deserving plaintiffs, including some
intentionally subjected to injury, will be unable to surmount the
barrier of the New York Times test. Despite this Page 418 U. S. 343 substantial abridgment of the state law right to compensation
for wrongful hurt to one's reputation, the Court has concluded that
the protection of the New York Times privilege should be
available to publishers and broadcasters of defamatory falsehood
concerning public officials and public figures. New York Times
Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra. We think that these decisions are correct, but we do not find their
holdings justified solely by reference to the interest of the press
and broadcast media in immunity from liability. Rather, we believe
that the New York Times rule states an accommodation
between this concern and the limited state interest present in the
context of libel actions brought by public persons. For the reasons
stated below, we conclude that the state interest in compensating
injury to the reputation of private individuals requires that a
different rule should obtain with respect to them.

															Theoretically, of course, the balance between the needs of the
press and the individual's claim to compensation for wrongful
injury might be struck on a case-by-case basis. As Mr. Justice
Harlan hypothesized,

															"it might seem, purely as an abstract matter, that the most
utilitarian approach would be to scrutinize carefully every jury
verdict in every libel case, in order to ascertain whether the
final judgment leaves fully protected whatever First Amendment
values transcend the legitimate state interest in protecting the
particular plaintiff who prevailed." Rosenbloom v. Metromedia, Inc., 403 U.S. at 403 U. S. 63 (footnote omitted). But this approach would lead to unpredictable
results and uncertain expectations, and it could render our duty to
supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular
case is not feasible, we must lay down broad rules of general Page 418 U. S. 344 application: such rules necessarily treat alike various cases
involving differences as well as similarities. Thus, it is often
true that not all of the considerations which justify adoption of a
given rule will obtain in each particular case decided under its
authority.

															With that caveat, we have no difficulty in distinguishing among
defamation plaintiffs. The first remedy of any victim of defamation
is self-help -- using available opportunities to contradict the lie
or correct the error, and thereby to minimize its adverse impact on
reputation. Public officials and public figures usually enjoy
significantly greater access to the channels of effective
communication, and hence have a more realistic opportunity to
counteract false statements than private individuals normally
enjoy. [ Footnote 9 ] Private
individuals are therefore more vulnerable to injury, and the state
interest in protecting them is correspondingly greater.

															More important than the likelihood that private individuals will
lack effective opportunities for rebuttal, there is a compelling
normative consideration underlying the distinction between public
and private defamation plaintiffs. An individual who decides to
seek governmental office must accept certain necessary consequences
of that involvement in public affairs. He runs the risk of closer
public scrutiny than might otherwise be the case. And society's
interest in the officers of government is not strictly limited to
the formal discharge of official duties. As the Court pointed out
in Garrison v. Louisiana, 379 U.S. at 379 U. S. 77 ,
the public's interest extends to

															"anything Page 418 U. S. 345 which might touch on an official's fitness for office. . . . Few
personal attributes are more germane to fitness for office than
dishonesty, malfeasance, or improper motivation, even though these
characteristics may also affect the official's private
character."

															Those classed as public figures stand in a similar position.
Hypothetically, it may be possible for someone to become a public
figure through no purposeful action of his own, but the instances
of truly involuntary public figures must be exceedingly rare. For
the most part, those who attain this status have assumed roles of
especial prominence in the affairs of society. Some occupy
positions of such persuasive power and influence that they are
deemed public figures for all purposes. More commonly, those
classed as public figures have thrust themselves to the forefront
of particular public controversies in order to influence the
resolution of the issues involved. In either event, they invite
attention and comment.

															Even if the foregoing generalities do not obtain in every
instance, the communications media are entitled to act on the
assumption that public officials and public figures have
voluntarily exposed themselves to increased risk of injury from
defamatory falsehood concerning them. No such assumption is
justified with respect to a private individual. He has not accepted
public office or assumed an "influential role in ordering society." Curtis Publishing Co. v. Butts, 388 U.S. at 388 U. S. 164 (Warren, C.J., concurring in result). He has relinquished no part
of his interest in the protection of his own good name, and
consequently he has a more compelling call on the courts for
redress of injury inflicted by defamatory falsehood. Thus, private
individuals are not only more vulnerable to injury than public
officials and public figures; they are also more deserving of
recovery.

															For these reasons, we conclude that the States should retain
substantial latitude in their efforts to enforce a Page 418 U. S. 346 legal remedy for defamatory falsehood injurious to the
reputation of a private individual. The extension of the New
York Times test proposed by the Rosenbloom plurality
would abridge this legitimate state interest to a degree that we
find unacceptable. And it would occasion the additional difficulty
of forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public
interest" and which do not -- to determine, in the words of MR.
JUSTICE MARSHALL, "what information is relevant to
self-government." Rosenbloom v. Metromedia, Inc., 403 U.S.
at 403 U. S. 79 . We
doubt the wisdom of committing this task to the conscience of
judges. Nor does the Constitution require us to draw so thin a line
between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory
error. The "public or general interest" test for determining the
applicability of the New York Times standard to private
defamation actions inadequately serves both of the competing values
at stake. On the one hand, a private individual whose reputation is
injured by defamatory falsehood that does concern an issue of
public or general interest has no recourse unless he can meet the
rigorous requirements of New York Times. This is true
despite the factors that distinguish the state interest in
compensating private individuals from the analogous interest
involved in the context of public persons. On the other hand, a
publisher or broadcaster of a defamatory error which a court deems
unrelated to an issue of public or general interest may be held
liable in damages even if it took every reasonable precaution to
ensure the accuracy of its assertions. And liability may far exceed
compensation for any actual injury to the plaintiff, for the jury
may be permitted to presume damages without proof of loss and even
to award punitive damages. Page 418 U. S. 347 We hold that, so long as they do not impose liability without
fault, the States may define for themselves the appropriate
standard of liability for a publisher or broadcaster of defamatory
falsehood injurious to a private individual. [ Footnote 10 ] This approach provides a more
equitable Page 418 U. S. 348 boundary between the competing concerns involved here. It
recognizes the strength of the legitimate state interest in
compensating private individuals for wrongful injury to reputation,
yet shields the press and broadcast media from the rigors of strict
liability for defamation. At least this conclusion obtains where,
as here, the substance of the defamatory statement "makes
substantial danger to reputation apparent." [ Footnote 11 ] This phrase places in perspective
the conclusion we announce today. Our inquiry would involve
considerations somewhat different from those discussed above if a
State purported to condition civil liability on a factual
misstatement whose content did not warn a reasonably prudent editor
or broadcaster of its defamatory potential. Cf. Time, Inc. v.
Hill, 385 U. S. 374 (1967). Such a case is not now before us, and we intimate no view
as to its proper resolution. IV Our accommodation of the competing values at stake in defamation
suits by private individuals allows the States to impose liability
on the publisher or broadcaster of defamatory falsehood on a less
demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations
which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to
public figures are wholly inapplicable to the context of private
individuals. Rather, we endorse this approach in recognition of the
strong and legitimate state interest in compensating private
individuals for injury to reputation. Page 418 U. S. 349 But this countervailing state interest extends no further than
compensation for actual injury. For the reasons stated below, we
hold that the States may not permit recovery of presumed or
punitive damages, at least when liability is not based on a showing
of knowledge of falsity or reckless disregard for the truth.

															The common law of defamation is an oddity of tort law, for it
allows recovery of purportedly compensatory damages without
evidence of actual loss. Under the traditional rules pertaining to
actions for libel, the existence of injury is presumed from the
fact of publication. Juries may award substantial sums as
compensation for supposed damage to reputation without any proof
that such harm actually occurred. The largely uncontrolled
discretion of juries to award damages where there is no loss
unnecessarily compounds the potential of any system of liability
for defamatory falsehood to inhibit the vigorous exercise of First
Amendment freedoms. Additionally, the doctrine of presumed damages
invites juries to punish unpopular opinion, rather than to
compensate individuals for injury sustained by the publication of a
false fact. More to the point, the States have no substantial
interest in securing for plaintiffs such as this petitioner
gratuitous awards of money damages far in excess of any actual
injury.

															We would not, of course, invalidate state law simply because we
doubt its wisdom, but here we are attempting to reconcile state law
with a competing interest grounded in the constitutional command of
the First Amendment. It is therefore appropriate to require that
state remedies for defamatory falsehood reach no farther than is
necessary to protect the legitimate interest involved. It is
necessary to restrict defamation plaintiffs who do not prove
knowledge of falsity or reckless disregard for the truth to
compensation for actual injury. We Page 418 U. S. 350 need not define "actual injury," as trial courts have wide
experience in framing appropriate jury instructions in tort
actions. Suffice it to say that actual injury is not limited to
out-of-pocket loss. Indeed, the more customary types of actual harm
inflicted by defamatory falsehood include impairment of reputation
and standing in the community, personal humiliation, and mental
anguish and suffering. Of course, juries must be limited by
appropriate instructions, and all awards must be supported by
competent evidence concerning the injury, although there need be no
evidence which assigns an actual dollar value to the injury.

															We also find no justification for allowing awards of punitive
damages against publishers and broadcasters held liable under
state-defined standards of liability for defamation. In most
jurisdictions jury discretion over the amounts awarded is limited
only by the gentle rule that they not be excessive. Consequently,
juries assess punitive damages in wholly unpredictable amounts
bearing no necessary relation to the actual harm caused. And they
remain free to use their discretion selectively to punish
expressions of unpopular views. Like the doctrine of presumed
damages, jury discretion to award punitive damages unnecessarily
exacerbates the danger of media self-censorship, but, unlike the
former rule, punitive damages are wholly irrelevant to the state
interest that justifies a negligence standard for private
defamation actions. They are not compensation for injury. Instead,
they are private fines levied by civil juries to punish
reprehensible conduct and to deter its future occurrence. In short,
the private defamation plaintiff who establishes liability under a
less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him
for actual injury. Page 418 U. S. 351 V Notwithstanding our refusal to extend the New York
Times privilege to defamation of private individuals,
respondent contends that we should affirm the judgment below on the
ground that petitioner is either a public official or a public
figure. There is little basis for the former assertion. Several
years prior to the present incident, petitioner had served briefly
on housing committees appointed by the mayor of Chicago, but, at
the time of publication, he had never held any remunerative
governmental position. Respondent admits this, but argues that
petitioner's appearance at the coroner's inquest rendered him a
" de facto public official." Our cases recognize no such
concept. Respondent's suggestion would sweep all lawyers under the New York Times rule as officers of the court, and distort
the plain meaning of the "public official" category beyond all
recognition. We decline to follow it.

															Respondent's characterization of petitioner as a public figure
raises a different question. That designation may rest on either of
two alternative bases. In some instances an individual may achieve
such pervasive fame or notoriety that he becomes a public figure
for all purposes and in all contexts. More commonly, an individual
voluntarily injects himself or is drawn into a particular public
controversy, and thereby becomes a public figure for a limited
range of issues. In either case, such persons assume special
prominence in the resolution of public questions.

															Petitioner has long been active in community and professional
affairs. He has served as an officer of local civic groups and of
various professional organizations, and he has published several
books and articles on legal subjects. Although petitioner was
consequently well known in some circles, he had achieved no general
fame Page 418 U. S. 352 or notoriety in the community. None of the prospective jurors
called at the trial had ever heard of petitioner prior to this
litigation, and respondent offered no proof that this response was
atypical of the local population. We would not lightly assume that
a citizen's participation in community and professional affairs
rendered him a public figure for all purposes. Absent clear
evidence of general fame or notoriety in the community, and
pervasive involvement in the affairs of society, an individual
should not be deemed a public personality for all aspects of his
life. It is preferable to reduce the public figure question to a
more meaningful context by looking to the nature and extent of an
individual's participation in the particular controversy giving
rise to the defamation.

															In this context, it is plain that petitioner was not a public
figure. He played a minimal role at the coroner's inquest, and his
participation related solely to his representation of a private
client. He took no part in the criminal prosecution of Officer
Nuccio. Moreover, he never discussed either the criminal or civil
litigation with the press, and was never quoted as having done so.
He plainly did not thrust himself into the vortex of this public
issue, nor did he engage the public's attention in an attempt to
influence its outcome. We are persuaded that the trial court did
not err in refusing to characterize petitioner as a public figure
for the purpose of this litigation.

															We therefore conclude that the New York Times standard
is inapplicable to this case, and that the trial court erred in
entering judgment for respondent. Because the jury was allowed to
impose liability without fault and was permitted to presume damages
without proof of injury, a new trial is necessary. We reverse and
remand for further proceedings in accord with this opinion. It is so ordered. Page 418 U. S. 353 [ Footnote 1 ]

															Petitioner filed a cross-motion for summary judgment on grounds
not specified in the record. The court denied petitioner's
cross-motion without discussion in a memorandum opinion of
September 16, 1970.

															[ Footnote 2 ] 322 F.
Supp. 997 (1970). Petitioner asserts that the entry of judgment n.o.v. on the basis of his failure to show knowledge of
falsity or reckless disregard for the truth constituted unfair
surprise and deprived him of a full and fair opportunity to prove
"actual malice" on the part of respondent. This contention is not
supported by the record. It is clear that the trial court gave
petitioner no reason to assume that the New York Times privilege would not be available to respondent. The court's
memorandum opinion denying respondent's pretrial motion for summary
judgment does not state that the New York Times standard
was inapplicable to this case. Rather, it reveals that the trial
judge thought it possible for petitioner to make a factual showing
sufficient to overcome respondent's claim of constitutional
privilege. It states in part:

															"When there is a factual dispute as to the existence of actual
malice, summary judgment is improper."

															" * * * *" "In the instant case, a jury might infer from the evidence that
[respondent's] failure to investigate the truth of the allegations,
coupled with its receipt of communications challenging the factual
accuracy of this author in the past, amounted to actual malice,
that is, 'reckless disregard' of whether the allegations were true
or not. New York Times \[Co.\] v.
Sullivan , [ 376 U.S.
254 ,] 376 U. S. 279 -280
[(1964)]."

															Mem.Op., Sept. 16, 1970. Thus, petitioner knew or should have
known that the outcome of the trial might hinge on his ability to
show by clear and convincing evidence that respondent acted with
reckless disregard for the truth. And this question remained open
throughout the trial. Although the court initially concluded that
the applicability of the New York Times rule depended on
petitioner's status as a public figure, the court did not decide
that petitioner was not a public figure until all the evidence had
been presented. Thus, petitioner had every opportunity, indeed
incentive, to prove "reckless disregard" if he could, and he, in
fact, attempted to do so. The record supports the observation by
the Court of Appeals that petitioner

															"did present evidence of malice (both the 'constitutional' and
the 'ill will' type) to support his damage claim and no such
evidence was excluded. . . ."

															471 F.2d 801, 807 n. 15 (1972).

															[ Footnote 3 ]

															The court stated:

															"[Petitioner's] considerable stature as a lawyer, author,
lecturer, and participant in matters of public import undermine[s]
the validity of the assumption that he is not a 'public figure' as
that term has been used by the progeny of New York Times. Nevertheless, for purposes of decision, we make that assumption and
test the availability of the claim of privilege by the subject
matter of the article." Id. at 805.

															[ Footnote 4 ]

															In the Court of Appeals petitioner made an ingenious but
unavailing attempt to show that respondent's defamatory charge
against him concerned no issue of public or general interest. He
asserted that the subject matter of the article was the murder
trial of Officer Nuccio, and that he did not participate in that
proceeding. Therefore, he argued, even if the subject matter of the
article generally were protected by the New York Times privilege, under the opinion of the Rosenbloom plurality,
the defamatory statements about him were not. The Court of Appeals
rejected this argument. It noted that the accusations against
petitioner played an integral part in respondent's general thesis
of a nationwide conspiracy to harass the police:

															"[W]e may also assume that the article's basic thesis is false.
Nevertheless, under the reasoning of New York Times Co. v.
Sullivan, even a false statement of fact made in support of a
false thesis is protected unless made with knowledge of its falsity
or with reckless disregard of its truth or falsity. It would
undermine the rule of that case to permit the actual falsity of a
statement to determine whether or not its publisher is entitled to
the benefit of the rule."

															"If, therefore, we put to one side the false character of the
article and treat it as though its contents were entirely true, it
cannot be denied that the comments about [petitioner] were integral
to its central thesis. They must be tested under the New York
Times standard."

															471 F.2d at 806.

															We think that the Court of Appeals correctly rejected
petitioner's argument. Its acceptance might lead to arbitrary
imposition of liability on the basis of an unwise differentiation
among kinds of factual misstatements. The present case illustrates
the point. Respondent falsely portrayed petitioner as an architect
of the criminal prosecution against Nuccio. On its face, this
inaccuracy does not appear defamatory. Respondent also falsely
labeled petitioner a "Leninist" and a "Communist-fronter." These
accusations are generally considered defamatory. Under petitioner's
interpretation of the "public or general interest" test, respondent
would have enjoyed a constitutional privilege to publish defamatory
falsehood if petitioner had, in fact, been associated with the
criminal prosecution. But this would mean that the seemingly
innocuous mistake of confusing petitioner's role in the litigation
against Officer Nuccio would destroy the privilege otherwise
available for calling petitioner a Communist-fronter. Thus,
respondent's privilege to publish statements whose content should
have alerted it to the danger of injury to reputation would hinge
on the accuracy of statements that carried with them no such
warning. Assuming that none of these statements was published with
knowledge of falsity or with reckless disregard for the truth, we
see no reason to distinguish among the inaccuracies.

															[ Footnote 5 ]

															MR. JUSTICE DOUGLAS did not participate in the consideration or
decision of Rosenbloom. [ Footnote 6 ] New York Times and later cases explicated the meaning
of the new standard. In New York Times, the Court held
that, under the circumstances, the newspaper's failure to check the
accuracy of the advertisement against news stories in its own files
did not establish reckless disregard for the truth. 376 U.S. at 376 U. S.
287 -288. In St. Amant v. Thompson, 390 U.
S. 727 , 390 U. S. 731 (1968), the Court equated reckless disregard of the truth with
subjective awareness of probable falsity: "There must be sufficient
evidence to permit the conclusion that the defendant, in fact,
entertained serious doubts as to the truth of his publication." In Beckley Newspapers Corp. v. Hanks, 389 U. S.
81 (1967), the Court emphasized the distinction between
the New York Times test of knowledge of falsity or
reckless disregard of the truth and "actual malice" in the
traditional sense of ill will. Garrison v. Louisiana, 379 U. S. 64 (1964), made plain that the new standard applied to criminal libel
laws as well as to civil actions, and that it governed criticism
directed at "anything which might touch on an official's fitness
for office." Id. at 379 U. S. 77 .
Finally, in Rosenblatt v. Baer, 383 U. S.
75 , 383 U. S. 85 (1966), the Court stated that

															"the 'public official' designation applies at the very least to
those among the hierarchy of government employees who have, or
appear to the public to have, substantial responsibility for or
control over the conduct of governmental affairs."

															In Time, Inc. v. Hill, 385 U.
S. 374 (1967), the Court applied the New York
Times standard to actions under an unusual state statute. The
statute did not create a cause of action for libel. Rather, it
provided a remedy for unwanted publicity. Although the law allowed
recovery of damages for harm caused by exposure to public
attention, rather than by factual inaccuracies, it recognized truth
as a complete defense. Thus, nondefamatory factual errors could
render a publisher liable for something akin to invasion of
privacy. The Court ruled that the defendant in such an action could
invoke the New York Times privilege regardless of the fame
or anonymity of the plaintiff. Speaking for the Court, MR. JUSTICE
BRENNAN declared that this holding was not an extension of New
York Times, but rather a parallel line of reasoning applying
that standard to this discrete context:

															"This is neither a libel action by a private individual nor a
statutory action by a public official. Therefore, although the
First Amendment principles pronounced in New York Times guide our conclusion, we reach that conclusion only by applying
these principles in this discrete context. It therefore serves no
purpose to distinguish the facts here from those in New York
Times. Were this a libel action, the distinction which has
been suggested between the relative opportunities of the public
official and the private individual to rebut defamatory charges
might be germane. And the additional state interest in the
protection of the individual against damage to his reputation would
be involved. Cf. Rosenblatt v. Baer, 383 U. S.
75 , 383 U. S. 91 (STEWART, J.,
concurring)."

															385 U.S. at 385 U. S.
390 -391.

															[ Footnote 7 ]

															Professor Kalven once introduced a discussion of these cases
with the apt heading, "You Can't Tell the Players without a Score
Card." Kalven, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup.Ct.Rev. 267,
275. Only three other Justices joined Mr. Justice Harlan's analysis
of the issues involved. In his concurring opinion, Mr. Chief
Justice Warren stated the principle for which these cases stand --
that the New York Times test reaches both public figures
and public officials. MR. JUSTICE BRENNAN and MR. JUSTICE WHITE
agreed with the Chief Justice on that question. Mr. Justice Black
and MR. JUSTICE DOUGLAS reiterated their view that publishers
should have an absolute immunity from liability for defamation, but
they acquiesced in the Chief Justice's reasoning in order to enable
a majority of the Justices to agree on the question of the
appropriate constitutional privilege for defamation of public
figures.

															[ Footnote 8 ]

															As Thomas Jefferson made the point in his first Inaugural
address:

															"If there be any among us who would wish to dissolve this Union
or change its republican form, let them stand undisturbed as
monuments of the safety with which error of opinion may be
tolerated where reason is left free to combat it."

															[ Footnote 9 ]

															Of course, an opportunity for rebuttal seldom suffices to undo
harm of defamatory falsehood. Indeed, the law of defamation is
rooted in our experience that the truth rarely catches up with a
lie. But the fact that the self-help remedy of rebuttal, standing
alone, is inadequate to its task does not mean that it is
irrelevant to our inquiry.

															[ Footnote 10 ]

															Our caveat against strict liability is the prime target of MR.
JUSTICE WHITE's dissent. He would hold that a publisher or
broadcaster may be required to prove the truth of a defamatory
statement concerning a private individual and, failing such proof,
that the publisher or broadcaster may be held liable for defamation
even though he took every conceivable precaution to ensure the
accuracy of the offending statement prior to its dissemination. Post at 418 U. S.
388 -392. In MR. JUSTICE WHITE's view, one who publishes
a statement that later turns out to be inaccurate can never be
"without fault" in any meaningful sense, for "[i]t is he who
circulated a falsehood that he was not required to
publish. " Post at 418 U. S. 392 (emphasis added).

															MR. JUSTICE WHITE characterizes New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), as simply a case of seditious libel. Post at 418 U. S. 387 .
But that rationale is certainly inapplicable to Curtis
Publishing Co. v. Butts, 388 U. S. 130 (1967), where MR. JUSTICE WHITE joined four other Members of the
Court to extend the "knowing or reckless falsity" standard to media
defamation of persons identified as public figures but not
connected with the Government. MR. JUSTICE WHITE now suggests that
he would abide by that vote, post at 418 U. S. 398 ,
but the full thrust of his dissent -- as we read it -- contradicts
that suggestion. Finally, in Rosenbloom v. Metromedia,
Inc., 403 U. S. 29 , 403 U. S. 57 (1971), MR. JUSTICE WHITE voted to apply the New York
Times privilege to media defamation of an individual who was
neither a public official nor a public figure. His opinion states
that the "knowing or reckless falsity" standard should apply to
media "comment upon the official actions of public servants," id. at 403 U. S. 62 ,
including defamatory falsehood about a person arrested by the
police. If adopted by the Court, this conclusion would
significantly extend the New York Times privilege.

															MR. JUSTICE WHITE asserts that our decision today "trivializes
and denigrates the interest in reputation," Miami Herald
Publishing Co. v. Tornillo, ante, at 418 U. S. 262 (concurring opinion), that it "scuttle[s] the libel laws of the
States in . . . wholesale fashion" and renders ordinary citizens
"powerless to protect themselves." Post at 418 U. S. 370 .
In light of the progressive extension of the "knowing or reckless
falsity" requirement detailed in the preceding paragraph, one might
have viewed today's decision allowing recovery under any standard
save strict liability as a more generous accommodation of the state
interest in comprehensive reputational injury to private
individuals than the law presently affords.

															[ Footnote 11 ] Curtis Publishing Co. v. Butts, supra, at 388 U. S.
155 .

															MR. JUSTICE BLACKMUN, concurring.

															I joined MR. JUSTICE BRENNAN's opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U. S.
29 (1971). I did so because I concluded that, given New York Times Co. v. Sullivan, 376 U.
S. 254 (1964), and its progeny (noted by the Court, ante at 418 U. S.
334 -336, n. 6), as well as Curtis Publishing Co. v.
Butts and Associated Press v. Walker, 388 U.
S. 130 (1967), the step taken in Rosenbloom, extending the New York Times doctrine to an event of
public or general interest, was logical and inevitable. A majority
of the Court evidently thought otherwise, as is particularly
evidenced by MR. JUSTICE WHITE's separate concurring opinion there
and by the respective dissenting opinions of Mr. Justice Harlan and
of MR. JUSTICE MARSHALL joined by MR. JUSTICE STEWART.

															The Court today refuses to apply New York Times to the
private individual, as contrasted with the public official and the
public figure. It thus withdraws to the factual limits of the
pre- Rosenbloom cases. It thereby fixes the outer boundary
of the New York Times doctrine, and says that, beyond that
boundary, a State is free to define for itself the appropriate
standard of media liability so long as it does not impose liability
without fault. As my joinder in Rosenbloom's plurality
opinion would intimate, I sense some illogic in this.

															The Court, however, seeks today to strike a balance between
competing values where necessarily uncertain assumptions about
human behavior color the result. Although the Court's opinion in
the present case departs from the rationale of the Rosenbloom plurality, in that the Court now conditions a
libel action by a private person upon a showing of negligence, as
contrasted with a showing of willful or reckless disregard, I am
willing to Page 418 U. S. 354 join, and do join, the Court's opinion and its judgment for two
reasons:

															1. By removing the specters of presumed and punitive damages in
the absence of New York Times malice, the Court eliminates
significant and powerful motives for self-censorship that otherwise
are present in the traditional libel action. By so doing, the Court
leaves what should prove to be sufficient and adequate breathing
space for a vigorous press. What the Court has done, I believe,
will have little, if any, practical effect on the functioning of
responsible journalism.

															2. The Court was sadly fractionated in Rosenbloom. A
result of that kind inevitably leads to uncertainty. I feel that it
is of profound importance for the Court to come to rest in the
defamation area and to have a clearly defined majority position
that eliminates the unsureness engendered by Rosenbloom's diversity. If my vote were not needed to create a majority, I would
adhere to my prior view. A definitive ruling, however, is
paramount. See Curtis Publishing Co. v. Butts, 388 U.S. at 388 U. S. 170 (Black, J., concurring); Time, Inc. v. Hill, 385 U.
S. 374 , 385 U. S. 398 (1967) (Black, J., concurring); United States v. Vuitch, 402 U. S. 62 , 402 U. S. 97 (1971) (separate statement).

															For these reasons, I join the opinion and the judgment of the
Court.

															MR. CHIEF JUSTICE BURGER, dissenting.

															The doctrines of the law of defamation have had a gradual
evolution primarily in the state courts. In New York Times Co.
v. Sullivan, 376 U. S. 254 (1964), and its progeny this Court entered this field.

															Agreement or disagreement with the law as it has evolved to this
time does not alter the fact that it has been orderly development
with a consistent basic rationale. In today's opinion, the Court
abandons the traditional Page 418 U. S. 355 thread so far as the ordinary private citizen is concerned, and
introduces the concept that the media will be liable for negligence
in publishing defamatory statements with respect to such persons.
Although I agree with much of what MR. JUSTICE WHITE states, I do
not read the Court's new doctrinal approach in quite the way he
does. I am frank to say I do not know the parameters of a
"negligence" doctrine as applied to the news media. Conceivably
this new doctrine could inhibit some editors, as the dissents of
MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN suggest. But I would
prefer to allow this area of law to continue to evolve as it has up
to now with respect to private citizens, rather than embark on a
new doctrinal theory which has no jurisprudential ancestry.

															The petitioner here was performing a professional representative
role as an advocate in the highest tradition of the law, and, under
that tradition, the advocate is not to be invidiously identified
with his client. The important public policy which underlies this
tradition -- the right to counsel -- would be gravely jeopardized
if every lawyer who takes an "unpopular" case, civil or criminal,
would automatically become fair game for irresponsible reporters
and editors who might, for example, describe the lawyer as a "mob
mouthpiece" for representing a client with a serious prior criminal
record, or as an "ambulance chaser" for representing a claimant in
a personal injury action.

															I would reverse the judgment of the Court of Appeals and remand
for reinstatement of the verdict of the jury and the entry of an
appropriate judgment on that verdict.

															MR. JUSTICE DOUGLAS, dissenting.

															The Court describes this case as a return to the struggle of
"defin[ing] the proper accommodation between the law of defamation
and the freedoms of speech and press protected by the First
Amendment." It is indeed a struggle, once described by Mr. Justice
Black as "the same Page 418 U. S. 356 quagmire" in which the Court "is now helplessly struggling in
the field of obscenity." Curtis Publishing Co. v. Butts, 388 U. S. 130 , 388 U. S. 171 (concurring opinion). I would suggest that the struggle is a quite
hopeless one, for, in light of the command of the First Amendment,
no "accommodation" of its freedoms can be "proper" except those
made by the Framers themselves.

															Unlike the right of privacy which, by the terms of the Fourth
Amendment, must be accommodated with reasonable searches and
seizures and warrants issued by magistrates, the rights of free
speech and of a free press were protected by the Framers in
verbiage whose proscription seems clear. I have stated before my
view that the First Amendment would bar Congress from passing any
libel law. [ Footnote 2/1 ] This was
the view held by Thomas Jefferson, [ Footnote 2/2 ] and it is one Congress has never
challenged through enactment of a civil libel statute. The sole
congressional attempt at this variety of First Amendment muzzle was
in the Sedition Act of 1798 -- criminal libel act never tested in
this Court and one which expired, by its terms, three years after
enactment. As President, Thomas Jefferson pardoned those who were
convicted under the Act, and fines levied in its prosecution were
repaid by Act of Congress. [ Footnote
2/3 ] The general Page 418 U. S. 357 consensus was that the Act constituted a regrettable legislative
exercise plainly in violation of the First Amendment. [ Footnote 2/4 ]

															With the First Amendment made applicable to the States through
the Fourteenth, [ Footnote 2/5 ] I do
not see how States have any more ability to "accommodate" freedoms
of speech or of the press than does Congress. This is true whether
the form of the accommodation is civil or criminal, since "[w]hat a
State may not constitutionally bring about by means of a criminal
statute is likewise beyond the reach of its civil law of libel." New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S. 277 .
Like Congress, States are without power "to use a civil libel law
or any other law to impose damages for merely discussing public
affairs." Id. at 376 U. S. 295 (Black, J., concurring). [ Footnote
2/6 ] Page 418 U. S. 358 Continued recognition of the possibility of state libel suits
for public discussion of public issues leaves the freedom of speech
honored by the Fourteenth Amendment a diluted version of First
Amendment protection. This view is only possible if one accepts the
position that the First Amendment is applicable to the States only
through the Due Process Clause of the Fourteenth, due process
freedom of speech being only that freedom which this Court might
deem to be "implicit in the concept of ordered liberty." [ Footnote 2/7 ] But the Court frequently has
rested Page 418 U. S. 359 state free speech and free press decisions on the Fourteenth
Amendment generally, [ Footnote 2/8 ]
rather than on the Due Process Clause alone. The Fourteenth
Amendment speaks not only of due process, but also of "privileges
and immunities" of United States citizenship. I can conceive of no
privilege or immunity with a higher claim to recognition against
state abridgment than the freedoms of speech and of the press. In
our federal system, we are all subject to two governmental regimes,
and freedoms of speech and of the press protected against the
infringement of only one are quite illusory. The identity of the
oppressor is, I would think, a matter of relative indifference to
the oppressed.

															There can be no doubt that a State impinges upon free and open
discussion when it sanctions the imposition of damages for such
discussion through its civil libel laws. Discussion of public
affairs is often marked by highly charged emotions, and jurymen,
not unlike us all, are subject to those emotions. It is indeed this
very type of speech which is the reason for the First Amendment,
since speech which arouses little emotion is little in need of
protection. The vehicle for publication in this case was the
American Opinion, a most controversial periodical which
disseminates the views of the John Birch Society, an organization
which many deem to be Page 418 U. S. 360 quite offensive. The subject matter involved "Communist plots,"
"conspiracies against law enforcement agencies," and the killing of
a private citizen by the police. With any such amalgam of
controversial elements pressing upon the jury, a jury
determination, unpredictable in the most neutral circumstances,
becomes for those who venture to discuss heated issues, a virtual
roll of the dice separating them from liability for often massive
claims of damage.

															It is only the hardy publisher who will engage in discussion in
the face of such risk, and the Court's preoccupation with
proliferating standards in the area of libel increases the risks.
It matters little whether the standard be articulated as "malice"
or "reckless disregard of the truth" or "negligence," for jury
determinations by any of those criteria are virtually unreviewable.
This Court, in its continuing delineation of variegated mantles of
First Amendment protection, is, like the potential publisher, left
with only speculation on how jury findings were influenced by the
effect the subject matter of the publication had upon the minds and
viscera of the jury. The standard announced today leaves the States
free to "define for themselves the appropriate standard of
liability for a publisher or broadcaster" in the circumstances of
this case. This, of course, leaves the simple negligence standard
as an option, with the jury free to impose damages upon a finding
that the publisher failed to act as "a reasonable man." With such
continued erosion of First Amendment protection, I fear that it may
well be the reasonable man who refrains from speaking.

															Since, in my view, the First and Fourteenth Amendments prohibit
the imposition of damages upon respondent for this discussion of
public affairs, I would affirm the judgment below. Page 418 U. S. 361 [ Footnote 2/1 ] See, e.g., Rosenblatt v. Baer, 383 U. S.
75 , 383 U. S. 90 (concurring).

															[ Footnote 2/2 ]

															In 1798, Jefferson stated:

															"[The First Amendment] thereby guard[s] in the same sentence,
and under the same words, the freedom of religion, of speech, and
of the press insomuch, that whatever violates either throws down
the sanctuary which covers the others, and that libels,
falsehood, and defamation, equally with heresy and false religion,
are withheld from the cognizance of federal tribunals. . .
."

															8 The Works of Thomas Jefferson 464-465 (Ford ed.1904) (emphasis
added).

															[ Footnote 2/3 ] See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802,
accompanied by H.R.Rep. No. 86, 26th Cong., 1st Sess. (1840).

															[ Footnote 2/4 ]

															Senator Calhoun, in reporting to Congress, assumed the
invalidity of the Act to be a matter "which no one now doubts."
Report with Senate Bill No. 122, S.Doc. No. 118, 24th Cong., 1st
Sess., 3 (1836).

															[ Footnote 2/5 ] See Stromberg v. California, 283 U.
S. 359 , 283 U. S.
368 -369.

															[ Footnote 2/6 ]

															Since this case involves a discussion of public affairs, I need
not decide at this point whether the First Amendment prohibits all
libel actions. "An unconditional right to say what one pleases
about public affairs is what I consider to be the minimum guarantee
of the First Amendment." New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 297 (Black, J., concurring) (emphasis added). But "public affairs"
includes a great deal more than merely political affairs. Matters
of science, economics, business, art, literature, etc., are all
matters of interest to the general public. Indeed, any matter of
sufficient general interest to prompt media coverage may be said to
be a public affair. Certainly police killings, "Communist
conspiracies," and the like qualify.

															A more regressive view of free speech has surfaced, but it has
thus far gained no judicial acceptance. Solicitor General Bork has
stated:

															"Constitutional protection should be accorded only to speech
that is explicitly political. There is no basis for judicial
intervention to protect any other form of expression, be it
scientific, literary or that variety of expression we call obscene
or pornographic. Moreover, within that category of speech we
ordinarily call political, there should be no constitutional
obstruction to laws making criminal any speech that advocates
forcible overthrow of the government or the violation of any
law."

															Bork, Neutral Principles and Some First Amendment Problems, 47
Ind.L.J. 1, 20 (1971).

															According to this view, Congress, upon finding a painting
aesthetically displeasing or a novel poorly written or a
revolutionary new scientific theory unsound could constitutionally
prohibit exhibition of the painting, distribution of the book or
discussion of the theory. Congress might also proscribe the
advocacy of the violation of any law, apparently without regard to
the law's constitutionality. Thus, were Congress to pass a
blatantly invalid law such as one prohibiting newspaper editorials
critical of the Government, a publisher might be punished for
advocating its violation. Similarly, the late Dr. Martin Luther
King, Jr., could have been punished for advising blacks to
peacefully sit in the front of buses or to ask for service in
restaurants segregated by law.

															[ Footnote 2/7 ] See Palko v. Connecticut, 302 U.
S. 319 , 302 U. S. 325 .
As Mr. Justice Black has noted, by this view, the test becomes

															"whether the government has an interest in abridging the right
involved, and, if so, whether that interest is of sufficient
importance, in the opinion of a majority of the Supreme
Court, to justify the government's action in doing so. Such a
doctrine can be used to justify almost any government suppression
of First Amendment freedoms. As I have stated many times before, I
cannot subscribe to this doctrine, because I believe that the First
Amendment's unequivocal command that there shall be no abridgement
of the rights of free speech shows that the men who drafted our
Bill of Rights did all the 'balancing' that was to be done in this
field."

															H. Black, A Constitutional Faith 52 (1969).

															[ Footnote 2/8 ] See, e.g., Bridges v. California, 314 U.
S. 252 , 314 U. S. 263 n. 6 (Black, J.); Murdock v. Pennsylvania, 319 U.
S. 105 , 319 U. S. 108 (DOUGLAS, J.); Saia v. New York, 334 U.
S. 558 , 334 U. S. 560 (DOUGLAS, J.); Talley v. California, 362 U. S.
60 , 362 U. S. 62 (Black, J.); DeGregory v. Attorney General of New
Hampshire, 383 U. S. 825 , 383 U. S. 828 (DOUGIAS, J.); Elfbrant v. Russell, 384 U. S.
11 , 384 U. S. 18 (DOUGLAS, J.); Mills v. Alabama, 384 U.
S. 214 , 384 U. S. 218 (Black, J.); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 , 389 U. S.
221 -222, and n. 4 (Black, J.).

															MR. JUSTICE BRENNAN, dissenting.

															I agree with the conclusion, expressed in 418 U.
S. that, at the time of publication of respondent's
article, petitioner could not properly have been viewed as either a
"public official" or "public figure"; instead, respondent's
article, dealing with an alleged conspiracy to discredit local
police forces, concerned petitioner's purported involvement in "an
event of public or general interest." Roosenbloom v.
Metromedia, Inc., 403 U. S. 29 , 403 U. S. 31 -32
(1971); see ante at 418 U. S.
331 -332, n. 4. I cannot agree, however, that free and
robust debate-- so essential to the proper functioning of our
system of government -- is permitted adequate "breathing space," NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 (1963), when, as the Court holds, the States may impose all but
strict liability for defamation if the defamed party is a private
person and "the substance of the defamatory statement makes
substantial danger to reputation apparent.'" Ante at 418 U. S. 348 .
[ Footnote 3/1 ] I adhere to my view
expressed in Rosenbloom v. Metromedia, Inc., supra, that
we strike the proper accommodation between avoidance of media
self-censorship and protection of individual reputations only when
we require States to apply the New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), "knowing or reckless falsity" standard in civil libel
actions concerning media reports of the involvement of private
individuals in events of public or general interest. The Court does not hold that First Amendment guarantees do not
extend to speech concerning private persons' involvement in events
of public or general interest. It recognizes that self-governance
in this country perseveres because of our "profound national
commitment Page 418 U. S. 362 to the principle that debate on public issues should be
uninhibited, robust, and wide-open." Id. at 376 U. S. 270 (emphasis added). Thus, guarantees of free speech and press
necessarily reach "far more than knowledge and debate about the
strictly official activities of various levels of government," Rosenbloom v. Metromedia, Inc., supra, at 403 U. S. 41 ;
for

															"[f]reedom of discussion, if it would fulfill its historic
function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of
society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 102 (1940).

															The teaching to be distilled from our prior cases is that, while
public interest in events may at times be influenced by the
notoriety of the individuals involved, "[t]he public's primary
interest is, in the event[,] . . . the conduct of the participant
and the content, effect, and significance of the conduct. . . ." Rosenbloom, supra, at 403 U. S. 43 .
Matters of public or general interest do not "suddenly become less
so merely because a private individual is involved, or because, in
some sense, the individual did not voluntarily' choose to
become involved." Ibid. See Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 388 (1967). Although acknowledging that First Amendment values are of no
less significance when media reports concern private persons'
involvement in matters of public concern, the Court refuses to
provide, in such cases, the same level of constitutional protection
that has been afforded the media in the context of defamation of
public persons. The accommodation that this Court has established
between free speech and libel laws in cases involving public
officials and public figures -- that defamatory falsehood be shown
by clear and convincing evidence to have been published with
knowledge of falsity or with reckless disregard of truth -- is not
apt, the Court holds because Page 418 U. S. 363 the private individual does not have the same degree of access
to the media to rebut defamatory comments as does the public
person, and he has not voluntarily exposed himself to public
scrutiny.

															While these arguments are forcefully and eloquently presented, I
cannot accept them, for the reasons I stated in Rosenbloom: "The New York Times standard was applied to libel of a
public official or public figure to give effect to the [First]
Amendment's function to encourage ventilation of public issues, not
because the public official has any less interest in protecting his
reputation than an individual in private life. While the argument
that public figures need less protection because they can command
media attention to counter criticism may be true for some very
prominent people, even then it is the rare case where the denial
overtakes the original charge. Denials, retractions, and
corrections are not 'hot' news, and rarely receive the prominence
of the original story. When the public official or public figure is
a minor functionary, or has left the position that put him in the
public eye . . . , the argument loses all of its force. In the vast
majority of libels involving public officials or public figures,
the ability to respond through the media will depend on the same
complex factor on which the ability of a private individual
depends: the unpredictable event of the media's continuing interest
in the story. Thus, the unproved, and highly improbable,
generalization that an as-yet [not fully defined] class of 'public
figures' involved in matters of public concern will be better able
to respond through the media than private individuals also involved
in such matters seems too insubstantial Page 418 U. S. 364 a reed on which to rest a constitutional distinction."

															403 U.S. at 403 U. S. 46 -47.
Moreover, the argument that private persons should not be required
to prove New York Times "knowing or reckless falsity"
because they do not assume the risk of defamation by freely
entering the public arena "bears little relationship either to the
values protected by the First Amendment or to the nature of our
society." Id. at 403 U. S. 47 .
Social interaction exposes all of us to some degree of public view.
This Court has observed that "[t]he risk of this exposure is an
essential incident of life in a society which places a primary
value on freedom of speech and of press." Time, Inc. v.
Hill, 385 U.S. at 385 U. S. 388 .
Therefore,

															"[v]oluntarily or not, we are all 'public' men to some degree.
Conversely, some aspects of the lives of even the most public men
fall outside the area of matters of public or general concern. See . . . Griswold v. Connecticut, 381 U. S.
479 (1965). Thus, the idea that certain 'public' figures
have voluntarily exposed their entire lives to public inspection,
while private individuals have kept theirs carefully shrouded from
public view is, at best, a legal fiction. In any event, such a
distinction could easily produce the paradoxical result of
dampening discussion of issues of public or general concern because
they happen to involve private citizens while extending
constitutional encouragement to discussion of aspects of the lives
of 'public figures' that are not in the area of public or general
concern." Rosenbloom, supra, at 403 U. S. 48 (footnote omitted).

															To be sure, no one commends publications which defame the good
name and reputation of any person: "In an ideal world, the
responsibility of the press would match the freedom and public
trust given it." Id. at Page 418 U. S. 365 403 U. S. 51 .
[ Footnote 3/2 ] Rather, as the Court
agrees, some abuse of First Amendment freedoms is tolerated only to
insure that would-be commentators on events of public or general
interest are not

															"deterred from voicing their criticism, even though it is
believed to be true and even though it is, in fact, true, because
of doubt whether it can be proved in court or fear of the expense
of having to do so." New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 279 .
The Court's holding and a fortiori my Brother WHITE's
views, see 418
U.S. 323 fn3/1|>n. 1, supra, simply deny free
expression its needed "breathing space." Today's decision will
exacerbate the rule of self-censorship of legitimate utterance as
publishers "steer far wider of the unlawful zone," Speiser v.
Randall, 357 U. S. 513 , 357 U. S. 526 (1958).

															We recognized in New York Times Co. v. Sullivan, supra, at 376 U. S. 279 ,
that a rule requiring a critic of official conduct to guarantee the
truth of all of his factual contentions would inevitably lead to
self-censorship when Page 418 U. S. 366 publishers, fearful of being unable to prove truth or unable to
bear the expense of attempting to do so, simply eschewed printing
controversial articles. Adoption, by many States, of a reasonable
care standard in cases where private individuals are involved in
matters of public interest -- the probable result of today's
decision -- will likewise lead to self-censorship, since publishers
will be required carefully to weigh a myriad of uncertain factors
before publication. The reasonable care standard is "elusive," Time, Inc. v. Hill, supra, at 385 U. S. 389 ;
it saddles the press with

															"the intolerable burden of guessing how a jury might assess the
reasonableness of steps taken by it to verify the accuracy of every
reference to a name, picture or portrait." Ibid. Under a reasonable care regime, publishers and
broadcasters will have to make pre-publication judgments about
juror assessment of such diverse considerations as the size,
operating procedures, and financial condition of the newsgathering
system, as well as the relative costs and benefits of instituting
less frequent and more costly reporting at a higher level of
accuracy. See The Supreme Court, 1970 Term, 85 Harv.L.Rev.
3, 228 (1971). Moreover, in contrast to proof by clear and
convincing evidence required under the New York Times test, the burden of proof for reasonable care will doubtless be the
preponderance of the evidence.

															"In the normal civil suit, where [the preponderance of the
evidence] standard is employed, 'we view it as no more serious in
general for there to be an erroneous verdict in the defendant's
favor than for there to be an erroneous verdict in the plaintiff's
favor.' In re Winship, 397 U. S. 358 , 397 U. S.
371 (1970) (HARLAN, J., concurring). In libel cases,
however, we view an erroneous verdict for the plaintiff as most
serious. Not only does it mulct the defendant for an innocent
misstatement . . . but the Page 418 U. S. 367 possibility of such error, even beyond the vagueness of the
negligence standard itself, would create a strong impetus toward
self-censorship, which the First Amendment cannot tolerate." Rosenbloom, 403 U.S. at 403 U. S. 50 .
And, most hazardous, the flexibility which inheres in the
reasonable care standard will create the danger that a jury will
convert it into

															"an instrument for the suppression of those 'vehement, caustic,
and sometimes unpleasantly sharp attacks' . . . which must be
protected if the guarantees of the First and Fourteenth Amendments
are to prevail." Monitor Patriot Co. v. Roy, 401 U.
S. 265 , 401 U. S. 277 (1971).

															The Court does not discount altogether the danger that jurors
will punish for the expression of unpopular opinions. This
probability accounts for the Court's limitation that

															"the States may not permit recovery of presumed or punitive
damages, at least when liability is not based on a showing of
knowledge of falsity or reckless disregard for the truth." Ante at 418 U. S. 349 .
But plainly a jury's latitude to impose liability for want of due
care poses a far greater threat of suppressing unpopular views than
does a possible recovery of presumed or punitive damages. Moreover,
the Court's broad-ranging examples of "actual injury," including
impairment of reputation and standing in the community, as well as
personal humiliation, and mental anguish and suffering, inevitably
allow a jury bent on punishing expression of unpopular views a
formidable weapon for doing so. Finally, even a limitation of
recovery to "actual injury" -- however much it reduces the size or
frequency of recoveries -- will not provide the necessary elbowroom
for First Amendment expression.

															"It is not simply the possibility of a judgment for damages that
results in self-censorship. The very Page 418 U. S. 368 possibility of having to engage in litigation, an expensive and
protracted process, is threat enough to cause discussion and debate
to 'steer far wider of the unlawful zone,' thereby keeping
protected discussion from public cognizance. . . . Too, a small
newspaper suffers equally from a substantial damage award, whether
the label of the award be 'actual' or 'punitive.'" Rosenbloom, supra, at 403 U. S.
52 -53.

															On the other hand, the uncertainties which the media face under
today's decision are largely avoided by the New York Times standard. I reject the argument that my Rosenbloom view
improperly commits to judges the task of determining what is and
what is not an issue of "general or public interest." [ Footnote 3/3 ] I noted in Rosenbloom Page 418 U. S. 369 that performance of this task would not always be easy. Id. at 403 U. S. 49 n.
17. But surely the courts, the ultimate arbiters of all disputes
concerning clashes of constitutional values, would only be
performing one of their traditional functions in undertaking this
duty. Also, the difficulty of this task has been substantially
lessened by that

															"sizable body of cases, decided both before and after Rosenbloom, that have employed the concept of a matter of
public concern to reach decisions in . . . cases dealing with an
alleged libel of a private individual that employed a public
interest standard . . . and . . . cases that applied Butts to the alleged libel of a public figure."

															Comment, The Expanding Constitutional Protection for the News
Media from Liability for Defamation: Predictability and the New
Synthesis, 70 Mich.L.Rev. 1547, 1560 (1972). The public interest is
necessarily broad; any residual self-censorship that may result
from the uncertain contours of the "general or public interest"
concept should be of far less concern to publishers and
broadcasters than that occasioned by state laws imposing liability
for negligent falsehood.

															Since petitioner failed, after having been given a full and fair
opportunity, to prove that respondent published the disputed
article with knowledge of its falsity or with reckless disregard of
the truth, see ante at 418 U. S.
329 -330, n. 2, I would affirm the judgment of the Court
of Appeals.

															[ Footnote 3/1 ] A fortiori, I disagree with in Brother WHITE's view
that the States should have free rein to impose strict liability
for defamation in cases not involving public persons.

															[ Footnote 3/2 ]

															A respected commentator has observed that factors other than
purely legal constraints operate to control the press:

															"Traditions, attitudes, and general rules of political conduct
are far more important controls. The fear of opening a credibility
gap, and thereby lessening one's influence, holds some participants
in check. Institutional pressures in large organizations, including
some of the press, have a similar effect; it is difficult for an
organization to have an open policy of making intentionally false
accusations."

															T. Emerson, The System of Freedom of Expression 538 (1970).
Typical of the press' own ongoing self-evaluation is a proposal to
establish a national news council, composed of members drawn from
the public and the journalism profession, to examine and report on
complaints concerning the accuracy and fairness of news reporting
by the largest newsgathering sources. Twentieth Century Fund Task
Force Report for a National News Council, A Free and Responsive
Press (1973). See also Comment, The Expanding
Constitutional Protection for the News Media from Liability for
Defamation: Predictability and the New Synthesis, 70 Mich.L.Rev.
1547, 1569-1570 (1972).

															[ Footnote 3/3 ]

															The Court, taking a novel step, would not limit application of
First Amendment protection to private libels involving issues of
general or public interest, but would forbid the States from
imposing liability without fault in any case where the substance of
the defamatory statement made substantial danger to reputation
apparent. As in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 , 403 U. S. 44 n.
12, 403 U. S. 48 -49,
n. 17 (1971), I would leave open the question of what
constitutional standard, if any, applies when defamatory falsehoods
are published or broadcast concerning either a private or public
person's activities not within the scope of the general or public
interest.

															Parenthetically, my Brother WHITE argues that the Court's view
and mine will prevent a plaintiff -- unable to demonstrate some
degree of fault -- from vindicating his reputation by securing a
judgment that the publication was false. This argument overlooks
the possible enactment of statutes, not requiring proof of fault,
which provide for an action for retraction or for publication of a
court's determination of falsity if the plaintiff is able to
demonstrate that false statements have been published concerning
his activities. Cf. Note, Vindication of the Reputation of
a Public Official, 80 Harv.L.Rev. 1730, 1739-1747 (1967). Although
it may be that questions could be raised concerning the
constitutionality of such statutes, certainly nothing I have said
today (and, as I read the Court's opinion, nothing said there)
should be read to imply that a private plaintiff, unable to prove
fault, must inevitably be denied the opportunity to secure a
judgment upon the truth or falsity of statements published about
him. Cf. Rosenbloom v. Metromedia, Inc., supra, at 403 U. S. 47 ,
and n. 15.

															MR. JUSTICE WHITE, dissenting.

															For some 200 years -- from the very founding of the Nation --
the law of defamation and right of the ordinary citizen to recover
for false publication injurious to his reputation have been almost
exclusively the business of Page 418 U. S. 370 state courts and legislatures. Under typical state defamation
law, the defamed private citizen had to prove only a false
publication that would subject him to hatred, contempt, or
ridicule. Given such publication, general damage to reputation was
presumed, while punitive damages required proof of additional
facts. The law governing the defamation of private citizens
remained untouched by the First Amendment, because, until
relatively recently, the consistent view of the Court was that
libelous words constitute a class of speech wholly unprotected by
the First Amendment, subject only to limited exceptions carved out
since 1964.

															But now, using that Amendment as the chosen instrument, the
Court, in a few printed pages, has federalized major aspects of
libel law by declaring unconstitutional in important respects the
prevailing defamation law in all or most of the 50 States. That
result is accomplished by requiring the plaintiff in each and every
defamation action to prove not only the defendant's culpability
beyond his act of publishing defamatory material, but also actual
damage to reputation resulting from the publication. Moreover,
punitive damages may not be recovered by showing malice in the
traditional sense of ill will; knowing falsehood or reckless
disregard of the truth will now be required.

															I assume these sweeping changes will be popular with the press,
but this is not the road to salvation for a court of law. As I see
it, there are wholly insufficient grounds for scuttling the libel
laws of the States in such wholesale fashion, to say nothing of
deprecating the reputation interest of ordinary citizens and
rendering them powerless to protect themselves. I do not suggest
that the decision is illegitimate or beyond the bounds of judicial
review, but it is an ill-considered exercise of the power entrusted
to this Court, particularly when the Page 418 U. S. 371 Court has not had the benefit of briefs and argument addressed
to most of the major issues which the Court now decides. I
respectfully dissent. I Lest there be any mistake about it, the changes wrought by the
Court's decision cut very deeply. In 1938, the Restatement of Torts
reflected the historic rule that publication in written form of
defamatory material -- material tending

															"so to harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from
associating or dealing with him [ Footnote 4/1 ]"

															-- subjected the publisher to liability although no special harm
to reputation was actually proved. [ Footnote 4/2 ] Restatement Page 418 U. S. 372 of Torts § 569 (1938). [ Footnote
4/3 ] Truth was a defense, and some libels were privileged; but,
given a false circulation, general damage to reputation was
presumed, and damages could be awarded by the jury, along with any
special damages such as pecuniary loss and emotional distress. At
the very least, the rule allowed the recovery of nominal damages
for any defamatory publication actionable per se, and thus
performed

															"a vindicatory function by enabling the plaintiff publicly to
brand the defamatory publication as false. The salutary social
value of this rule is preventive in character, since it often
permit a defamed person to expose the groundless character of a
defamatory rumor before harm to the reputation has resulted
therefrom." Id. § 569, comment b, p. 166.

															If the defamation was not libel, but slander, it was actionable per se only if it imputed a criminal offense; a venereal
or loathsome and communicable disease; improper conduct of a lawful
business; or unchastity by a woman. Id. § 570. To be
actionable, all other types of slanderous statements required proof
of special damage other than actual loss of reputation or emotional
distress, that special damage almost always being in the form of
material or pecuniary loss of some kind. Id. § 575 and
comment b, pp. 185-187.

															Damages for libel or slander per se included

															"harm caused thereby to the reputation of the person defamed or,
in the absence of proof of such harm, for the harm which normally
results from such a defamation." Id., § 621. At the heart of the libel and slander per se Page 418 U. S. 373 damage scheme lay the award of general damages for loss of
reputation. They were granted without special proof because the
judgment of history was that the content of the publication itself
was so likely to cause injury and because,

															"in many cases, the effect of defamatory statements is so subtle
and indirect that it is impossible directly to trace the effects
thereof in loss to the person defamed." Id. § 621, comment a, p. 314. [ Footnote 4/4 ] Proof of actual injury to reputation was
itself insufficient proof of that special damage necessary to
support liability for slander not actionable per se. But
if special damage in the form of material or pecuniary loss were
proved, general damages for injury to reputation could be had
without further proof. "The plaintiff may recover not only for the
special harm so caused, but also for general loss of reputation." Id. § 575, comment a, p. 185. [ Footnote 4/5 ] The right to recover for emotional
distress depended upon the defendant's otherwise being liable for
either libel or slander. Id. § 623. Punitive damages were
recoverable upon proof of special facts amounting to express
malice. Id. § 908 and comment b, p. 555. Page 418 U. S. 374 Preparations in the mid-1960's for Restatement (Second) of Torts
reflected what were deemed to be substantial changes in the law of
defamation, primarily a trend toward limiting per se libels to those where the defamatory nature of the publication is
apparent on its face, i.e., where the "defamatory innuendo
is apparent from the publication itself, without reference to
extrinsic facts by way of inducement." Restatement (Second) of
Torts § 569, p. 29 (Tent.Draft No. 12, Apr. 27, 1966). Libels of
this sort and slanders per se continued to be recognized
as actionable without proof of special damage or injury to
reputation. [ Footnote 4/6 ] All
other defamations would require proof of special injury in the form
of material or pecuniary loss. Whether this asserted change
reflected the prevailing law was heavily debated, [ Footnote 4/7 ] but it was unquestioned at the time
that there are recurring situations in which libel and slander are
and should be actionable per se. In surveying the current state of the law, the proposed
Restatement (Second) observed that "[a]ll courts except Virginia
agree that any libel which is defamatory upon its face is
actionable without proof of damage. . . ." Restatement (Second) of
Torts § 569, p. 84 (Tent.Draft No. 11, Apr. 15, 1965). Ten
jurisdictions continued to support the old rule that libel not
defamatory on its face and whose innuendo depends on extrinsic
facts is actionable without proof of damage, although slander would
not be. Twenty-four jurisdictions were said to hold that libel not
defamatory on its face is to be treated like slander, and thus not
actionable without proof of damage where Page 418 U. S. 375 slander would not be. Id. § 569, p. 86. The law in six
jurisdictions was found to be in an unsettled state, but most
likely consistent with the Restatement (Second). Id. §
569, p. 88. The law in Virginia was thought to consider libel
actionable without proof of special damage only where slander would
be, regardless of whether the libel is defamatory on its face. Id. § 569, p. 89. All States, therefore, were at that time
thought to recognize important categories of defamation that were
actionable per se. [ Footnote
4/8 ] Nor was any question apparently raised at that time that,
upon proof of special damage in the form of material or pecuniary
loss, general damages to reputation could be recovered without
further proof.

															Unquestionably, state law continued to recognize some absolute,
as well as some conditional, privileges to publish defamatory
materials, including the privilege of fair comment in defined
situations. But it remained true that, in a wide range of
situations, the ordinary citizen could make out a prima
facie case without proving more than a defamatory publication,
and could recover general damages for injury to his reputation
unless defeated by the defense of truth. [ Footnote 4/9 ]

															The impact of today's decision on the traditional law of libel
is immediately obvious and indisputable. No longer will the
plaintiff be able to rest his case with proof of a libel defamatory
on its face or proof of a slander historically actionable per
se. In addition, he must prove some further degree of culpable
conduct on the part of the Page 418 U. S. 376 publisher, such as intentional or reckless falsehood or
negligence. And if he succeeds in this respect, he faces still
another obstacle: recovery for loss of reputation will be
conditioned upon "competent" proof of actual injury to his standing
in the community. This will be true regardless of the nature of the
defamation, and even though it is one of those particularly
reprehensible statements that have traditionally made slanderous
words actionable without proof of fault by the publisher or of the
damaging impact of his publication. The Court rejects the judgment
of experience that some publications are so inherently capable of
injury, and actual injury so difficult to prove, that the risk of
falsehood should be borne by the publisher, not the victim.
Plainly, with the additional burden on the plaintiff of proving
negligence or other fault, it will be exceedingly difficult,
perhaps impossible, for him to vindicate his reputation interest by
securing a judgment for nominal damages, the practical effect of
such a judgment being a judicial declaration that the publication
was indeed false. Under the new rule, the plaintiff can lose not
because the statement is true, but because it was not negligently
made.

															So too, the requirement of proving special injury to reputation
before general damages may be awarded will clearly eliminate the
prevailing rule, worked out over a very long period of time, that,
in the case of defamations not actionable per se, the
recovery of general damages for injury to reputation may also be
had if some form of material or pecuniary loss is proved. Finally,
an inflexible federal standard is imposed for the award of punitive
damages. No longer will it be enough to prove ill will and an
attempt to injure.

															These are radical changes in the law and severe invasions of the
prerogatives of the States. They should Page 418 U. S. 377 at least be shown to be required by the First Amendment or
necessitated by our present circumstances. Neither has been
demonstrated.

															Of course, New York Times Co. v. Sullivan, 376 U.
S. 254 (1964); Rosenblatt v. Baer, 383 U. S.
75 (1966), and Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.
S. 130 (1967), have themselves worked major changes in
defamation law. Public officials and public figures, if they are to
recover general damages for injury to reputation, must prove
knowing falsehood or reckless disregard for the truth. The States
were required to conform to these decisions. Thereafter in Rosenbloom v. Metromedia, Inc., 403 U. S.
29 (1971), three Members of the Court urged that the
same standard be applied whenever the publication concerned an
event of public or general concern. But none of these cases
purported to foreclose in all circumstances recovery by the
ordinary citizen on traditional standards of liability, and, until
today, a majority of the Court had not supported the proposition
that, given liability, a court or jury may not award general
damages in a reasonable amount without further proof of injury.

															In the brief period since Rosenbloom was decided, at
least 17 States and several federal courts of appeals have felt
obliged to consider the New York Times constitutional
privilege for liability as extending to, in the words of the Rosenbloom plurality, "all discussion and communication
involving matters of public or general concern." Id. at 403 U. S. 44 .
[ Footnote 4/10 ] Apparently,
however, general Page 418 U. S. 378 damages still remain recoverable once that standard of liability
is satisfied. Except where public officials and public figures are
concerned, the Court now repudiates Page 418 U. S. 379 the plurality opinion in Rosenbloom and appears to
espouse the liability standard set forth by three other Justices in
that case. The States must now struggle to Page 418 U. S. 380 discern the meaning of such ill-defined concepts as "liability
without fault" and to fashion novel rules for the recovery of
damages. These matters have not been briefed or argued by the
parties, and their workability has not been seriously explored.
Nevertheless, yielding to the apparently irresistible impulse to
announce a new and different interpretation of the First Amendment,
the Court discards history and precedent in its rush to refashion
defamation law in accordance with the inclinations of a perhaps
evanescent majority of the Justices. II The Court does not contend, and it could hardly do so, that
those who wrote the First Amendment intended to prohibit the
Federal Government, within its sphere of influence in the
Territories and the District of Columbia, from providing the
private citizen a peaceful remedy for damaging falsehood. At the
time of the adoption of the First Amendment, many of the
consequences of libel law already described had developed,
particularly the rule that libels and some slanders were so
inherently injurious that they were actionable without special
proof of damage to reputation. As the Court pointed out in Roth
v. United States, 354 U. S. 476 , 354 U. S. 482 (1957), 10 of the 14 States that had ratified the Constitution by
1792 had themselves provided constitutional guarantees for free Page 418 U. S. 381 expression, and 13 of the 14 nevertheless provided for the
prosecution of libels. Prior to the Revolution, the American
Colonies had adopted the common law of libel. [ Footnote 4/11 ] Contrary to some popular notions,
freedom of the press was sharply curtailed in colonial America.
[ Footnote 4/12 ] Seditious libel
was punished as a contempt by the colonial legislatures and as a
criminal offense in the colonial courts. [ Footnote 4/13 ]

															Scant, if any, evidence exists that the First Amendment was
intended to abolish the common law of libel, at least to the extent
of depriving ordinary citizens of meaningful redress against their
defamers. On the contrary,

															"[i]t is conceded on all sides that the common law rules that
subjected the libeler to responsibility for the private injury, or
the public scandal or disorder occasioned by his conduct, are not
abolished by the protection extended to the press in our
constitutions."

															2 T. Cooley, Constitutional Limitations 883 (8th ed.1927).
Moreover, consistent with the Blackstone formula, [ Footnote 4/14 ] these Page 418 U. S. 382 common law actions did not abridge freedom of the press. See
generally L. Levy, Legacy of Suppression: Freedom of Speech
and Press in Early American History 247-248 (1960); Merin, Libel
and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 376 (1969);
Hallen, Fair Comment, 8 Tex.L.Rev. 41, 56 (1929). Alexander
Meiklejohn, who accorded generous reach to the First Amendment,
nevertheless acknowledged:

															"No one can doubt that, in any well governed society, the
legislature has both the right and the duty to prohibit certain
forms of speech. Libelous assertions may be, and must be, forbidden
and punished. So too must slander. . . . All these necessities that
speech be limited are recognized and provided for under the
Constitution. They were not unknown to the writers of the First
Amendment. That amendment, then, we may take it for granted, does not forbid the abridging of speech. But, at the same
time, it does forbid the abridging of the freedom of
speech. It is to the solving of that paradox, that apparent
self-contradiction, that we are summoned if, as free men, we wish
to know what the right of freedom of speech is."

															Political Freedom, The Constitutional Powers of the People 21
(1965). See also Leflar, The Free-ness of Free Speech, 15
Vand.L.Rev. 1073, 1080-1081 (1962).

															Professor Zechariah Chafee, a noted First Amendment scholar, has
persuasively argued that conditions in 1791 "do not arbitrarily fix
the division between lawful and unlawful speech for all time." Free
Speech in the United States 14 (1954). [ Footnote 4/15 ] At the same time, however, Page 418 U. S. 383 he notes that, while the Framers may have intended to abolish
seditious libels and to prevent any prosecutions by the Federal
Government for criticism of the Government, [ Footnote 4/16 ] "the free speech clauses do not wipe out
the common law as to obscenity, profanity, and defamation of
individuals." [ Footnote 4/17 ]

															The debates in Congress and the States over the Bill of Rights
are unclear and inconclusive on any articulated intention of the
Framers as to the free press guarantee. [ Footnote 4/18 ] We know that Benjamin Franklin, John
Adams, and William Cushing favored limiting freedom of the press to
truthful statements, while others such as James Wilson suggested a
restatement of the Blackstone standard. [ Footnote 4/19 ] Page 418 U. S. 384 Jefferson endorsed Madison's formula that "Congress shall make
no law . . . abridging the freedom of speech or the press" only
after he suggested:

															"The people shall not be deprived of their right to speak, to
write, or otherwise to publish anything but false facts affecting
injuriously the life, liberty, or reputation of others. . . ."

															F. Mott, Jefferson and the Press 14 (1943). [ Footnote 4/20 ] Doubt has been expressed that the
Members of Congress envisioned the First Amendment as reaching even
this far. Merin, Libel and the Supreme Court, 11 Wm. & Mary
L.Rev. 371, § 379-380 (1969).

															This Court, in bygone years, has repeatedly dealt with libel and
slander actions from the District of Columbia and from the
Territories. Although in these cases First Amendment considerations
were not expressly discussed, the opinions of the Court
unmistakably revealed that the classic law of libel was firmly in
place in those areas where federal law controlled. See, e.g.,
Washington Post Co. v. Chaloner, 250 U.
S. 290 (1919); Baker v. Warner, 231 U.
S. 588 (1913); Nalle v. Oyster, 230 U.
S. 165 (1913); Dorr v. United States, 195 U. S. 138 (1904); Pollard v. Lyon, 91 U. S. 225 (1876); White v.
Nicholls , 3 How. 266 (1845).

															The Court's consistent view prior to New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), was that defamatory Page 418 U. S. 385 utterances were wholly unprotected by the First Amendment. In Patterson v. Colorado ex rel. Attorney General, 205 U. S. 454 , 205 U. S. 462 (1907), for example, the Court said that, although freedom of
speech and press is protected from abridgment by the Constitution,
these provisions "do not prevent the subsequent punishment of such
as may be deemed contrary to the public welfare." This statement
was repeated in Near v. Minnesota ex rel. Olson, 283 U. S. 697 , 283 U. S. 714 (1931), the Court adding:

															"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. at 283 U. S. 715 . Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S.
571 -572 (1942) (footnotes omitted), reflected the same
view:

															"There are certain well defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or
'fighting' words -- those which by their very utterance, inflict
injury or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality." Beauharnais v. Illinois, 343 U.
S. 250 , 343 U. S.
254 -257 (1952) (footnotes omitted), repeated the Chaplinski statement, noting also that nowhere at the time
of the adoption of Page 418 U. S. 386 the Constitution "was there any suggestion that the crime of
libel be abolished." And in Roth v. United States, 354
U.S. at 354 U. S. 483 (footnote omitted), the Court further examined the meaning of the
First Amendment:

															"In light of this history, it is apparent that the unconditional
phrasing of the First Amendment was not intended to protect every
utterance. This phrasing did not prevent this Court from concluding
that libelous utterances are not within the area of
constitutionally protected speech. Beauharnais v.
Illinois, 343 U. S. 250 , 343 U. S.
266 . At the time of the adoption of the First Amendment,
obscenity law was not as fully developed as libel law, but there is
sufficiently contemporaneous evidence to show that obscenity, too,
was outside the protection intended for speech and press. [ Footnote 4/21 ]"

															The Court could not accept the generality of this historic view
in New York Times Co. v. Sullivan, supra. There, the Court
held that the First Amendment was intended to forbid actions for
seditious libel and that defamation actions by public officials
were therefore not subject to the traditional law of libel and
slander. If these officials (and, later, public figures occupying
semiofficial or influential, although private, positions) were to
recover, they were required to prove not only that the publication
was false, but also that it was knowingly false or published with
reckless disregard for its truth or falsity. This view that the
First Amendment was written to forbid Page 418 U. S. 387 seditious libel reflected one side of the dispute that raged at
the turn of the nineteenth century [ Footnote 4/22 ] and also mirrored the views of some
later scholars. [ Footnote
4/23 ]

															The central meaning of New York Times, and, for me, the
First Amendment as it relates to libel laws, is that seditious
libel -- criticism of government and public officials -- falls
beyond the police power of the State. 376 U.S. at 376 U. S.
273 -276. [ Footnote
4/24 ] In a democratic society such as ours, the citizen has the
privilege of criticizing his government and its officials. But
neither New York Times nor its progeny suggest that the First
Amendment intended in all circumstances to deprive the private
citizen of his historic recourse to redress published falsehoods
damaging to reputation or that, contrary to history and precedent,
the Amendment should now be so interpreted. Simply put, the First
Amendment did not confer a "license to defame the citizen." W.
Douglas, The Right of the People 36 (1958).

															I do not labor the foregoing matters to contend that the Court
is foreclosed from reconsidering prior interpretations of the First
Amendment. [ Footnote 4/25 ] But
the Court apparently finds a clean slate where, in fact, we have
instructive historical experience dating from long before Page 418 U. S. 388 the first settlers, with their notions of democratic government
and human freedom, journeyed to this land. Given this rich
background of history and precedent, and because we deal with
fundamentals when we construe the First Amendment, we should
proceed with care, and be presented with more compelling reasons
before we jettison the settled law of the States to an even more
radical extent. [ Footnote
4/26 ] III The Court concedes that the dangers of self-censorship are
insufficient to override the state interest in protecting the
reputation of private individuals who are both more helpless and
more deserving of state concern than public persons with more
access to the media to defend themselves. It therefore refuses to
condition the private plaintiff's recovery on a showing of
intentional or reckless falsehood as required by New York
Times. But the Court nevertheless extends the reach of the
First Amendment to all defamation actions by requiring that the
ordinary Page 418 U. S. 389 citizen, when libeled by a publication defamatory on its face,
must prove some degree of culpability on the part of the publisher
beyond the circulation to the public of a damaging falsehood. A
rule at least as strict would be called for where the defamatory
character of the publication is not apparent from its face. Ante at 418 U. S. 348 .
[ Footnote 4/27 ] Furthermore, if
this major hurdle to establish liability is surmounted, the Court
requires proof of actual injury to reputation before any damages
for such injury may be awarded.

															The Court proceeds as though it were writing on tabula
rasa, and suggests that it must mediate between two
unacceptable choices -- on the one hand, the rigors of the New
York Times rule, which the Court thinks would give
insufficient recognition to the interest of the private plaintiff,
and, on the other hand, the prospect of imposing "liability without
fault" on the press and others who are charged with defamatory
utterances. Totally ignoring history and settled First Amendment
law, the Court purports to arrive at an "equitable compromise,"
rejecting both what it considers faultless liability and New
York Times malice, but insisting on some intermediate degree
of fault. Of course, the Court necessarily discards the contrary
judgment arrived at in the 50 States that the reputation interest
of the private citizen is deserving of considerably more
protection.

															The Court evinces a deep-seated antipathy to "liability without
fault." But this catch-phrase has no talismanic significance, and
is almost meaningless in this context, where the Court appears to
be addressing those libels and slanders that are defamatory on
their face and where Page 418 U. S. 390 the publisher is no doubt aware from the nature of the material
that it would be inherently damaging to reputation. He publishes
notwithstanding, knowing that he will inflict injury. With this
knowledge, he must intend to inflict that injury, his excuse being
that he is privileged to do so -- that he has published the truth.
But, as it turns out, what he has circulated to the public is a
very damaging falsehood. Is he nevertheless "faultless"? Perhaps it
can be said that the mistake about his defense was made in good
faith, but the fact remains that it is he who launched the
publication knowing that it could ruin a reputation.

															In these circumstances, the law has heretofore put the risk of
falsehood on the publisher where the victim is a private citizen
and no grounds of special privilege are invoked. The Court would
now shift this risk to the victim, even though he has done nothing
to invite the calumny, is wholly innocent of fault, and is helpless
to avoid his injury. I doubt that jurisprudential resistance to
liability without fault is sufficient ground for employing the
First Amendment to revolutionize the law of libel, and, in my view,
that body of legal rules poses no realistic threat to the press and
its service to the public. The press today is vigorous and robust.
To me, it is quite incredible to suggest that threats of libel
suits from private citizens are causing the press to refrain from
publishing the truth. I know of no hard facts to support that
proposition, and the Court furnishes none.

															The communications industry has increasingly become concentrated
in a few powerful hands operating very lucrative businesses
reaching across the Nation and into almost every home. [ Footnote 4/28 ] Neither the industry as a
whole nor Page 418 U. S. 391 its individual components are easily intimidated, and we are
fortunate that they are not. Requiring them to pay for the
occasional damage they do to private reputation will play no
substantial part in their future performance or their
existence.

															In any event, if the Court's principal concern is to protect the
communications industry from large libel judgments, it would appear
that its new requirements with respect to general and punitive
damages would be ample protection. Why it also feels compelled to
escalate the threshold standard of liability I cannot fathom, Page 418 U. S. 392 particularly when this will eliminate, in many instances, the
plaintiff's possibility of securing a judicial determination that
the damaging publication was indeed false, whether or not he is
entitled to recover money damages. Under the Court's new rules, the
plaintiff must prove not only the defamatory statement, but also
some degree of fault accompanying it. The publication may be wholly
false, and the wrong to him unjustified, but his case will
nevertheless be dismissed for failure to prove negligence or other
fault on the part of the publisher. I find it unacceptable to
distribute the risk in this manner and force the wholly innocent
victim to bear the injury; for, as between the two, the defamer is
the only culpable party. It is he who circulated a falsehood that
he was not required to publish.

															It is difficult for me to understand why the ordinary citizen
should himself carry the risk of damage and suffer the injury in
order to vindicate First Amendment values by protecting the press
and others from liability for circulating false information. T his
is particularly true because such statements serve no purpose
whatsoever in furthering the public interest or the search for
truth, but, on the contrary, may frustrate that search, and, at the
same time, inflict great injury on the defenseless individual. The
owners of the press and the stockholders of the communications
enterprises can much better bear the burden. And if they cannot,
the public at large should somehow pay for what is essentially a
public benefit derived at private expense. IV A Not content with escalating the threshold requirements of
establishing liability, the Court abolishes the ordinary damages
rule, undisturbed by New York Times Page 418 U. S. 393 and later cases, that, as to libels or slanders defamatory on
their face, injury to reputation is presumed, and general damages
may be awarded along with whatever special damages may be sought.
Apparently because the Court feels that, in some unspecified and
unknown number of cases, plaintiffs recover where they have
suffered no injury or recover more than they deserve, it dismisses
this rule as an "oddity of tort law." The Court thereby refuses in
any case to accept the fact of wide dissemination of a per
se libel as prima facie proof of injury sufficient to
survive a motion to dismiss at the close of plaintiff's case.

															I have said before, but it bears repeating, that, even if the
plaintiff should recover no monetary damages, he should be able to
prevail and have a judgment that the publication is false. But
beyond that, courts and legislatures literally for centuries have
thought that, in the generality of cases, libeled plaintiffs will
be seriously shortchanged if they must prove the extent of the
injury to their reputations. Even where libels or slanders are not,
on their face, defamatory, and special damage must be shown, when
that showing is made, general damages for reputation injury are
recoverable without specific proof. [ Footnote 4/29 ] Page 418 U. S. 394 The Court is clearly right when at one point it states that "the
law of defamation is rooted in our experience that the truth rarely
catches up with a lie." Ante at 418 U. S. 344 n. 9. But it ignores what that experience teaches, viz., that damage to reputation is recurringly difficult to prove, and
that requiring actual proof would repeatedly destroy any chance for
adequate compensation. Eminent authority has warned that

															"it is clear that proof of actual damage will be impossible in a
great many cases where, from the character of the defamatory words
and the circumstances of publication, it is all but certain that
serious harm has resulted in fact."

															W. Prosser, Law of Torts § 112, p. 765 (4th ed.1971). [ Footnote 4/30 ]

															The Court fears uncontrolled awards of damages by juries, but
that not only denigrates the good sense of most jurors -- it fails
to consider the role of trial and appellate courts in limiting
excessive jury verdicts where no reasonable relationship exists
between the amount awarded and the injury sustained. [ Footnote 4/31 ] Available information Page 418 U. S. 395 tends to confirm that American courts have ably discharged this
responsibility. [ Footnote
4/32 ]

															The new rule with respect to general damages appears to apply to
all libels or slanders, whether defamatory on their face or not,
except, I gather, when the plaintiff proves intentional falsehood
or reckless disregard. Although the impact of the publication on
the victim is the same, in such circumstances, the injury to
reputation may apparently be presumed in accordance with the
traditional rule. Why a defamatory statement is more apt to cause
injury if the lie is intentional than when it is only negligent, I
fail to understand. I suggest that judges and juries who must live
by these rules will find them equally incomprehensible. B With a flourish of the pen, the Court also discards the
prevailing rule in libel and slander actions that punitive damages
may be awarded on the classic grounds of common law malice, that
is, "'[a]ctual malice' in the sense of ill will or fraud or
reckless indifference to consequences." Page 418 U. S. 396 C. McCormick, Law of Damages § 118, p. 431 (1935); see
also W. Prosser, supra, § 113, p. 772; 1 A. Hanson,
Libel and Related Torts � 163, p. 133 (1969); Note, Developments in
the Law -- Defamation, 69 Harv.L.Rev. 875, 938 (1956); Cal.Civ.Code
§ 48a(4)(d) (1954). In its stead, the Court requires defamation
plaintiffs to show intentional falsehood or reckless disregard for
the truth or falsity of the publication. The Court again complains
about substantial verdicts and the possibility of press
self-censorship, saying that punitive damages are merely "private
fines levied by civil juries to punish reprehensible conduct and to
deter its future occurrence." Ante at 418 U. S. 350 .
But I see no constitutional difference between publishing with
reckless disregard for the truth, where punitive damages will be
permitted, and negligent publication, where they will not be
allowed. It is difficult to understand what is constitutionally
wrong with assessing punitive damages to deter a publisher from
departing from those standards of care ordinarily followed in the
publishing industry, particularly if common law malice is also
shown.

															I note also the questionable premise that "juries assess
punitive damages in wholly unpredictable amounts bearing no
necessary relation to the actual harm caused." Ibid. This
represents an inaccurate view of established practice,

															"another of those situations in which judges, largely unfamiliar
with the relatively rare actions for defamation, rely on words
without really going behind them. . . . [ Footnote 4/33 ]"

															While a jury award in any type of civil case may certainly be
unpredictable, trial and appellate courts have been increasingly
vigilant in ensuring that the jury's result is "based upon a
rational consideration of the evidence and the proper application
of the Page 418 U. S. 397 law." Reynolds v. Pegler, 123 F.
Supp. 36 , 39 (SDNY 1954), aff'd, 223 F.2d 429 (CA2), cert. denied, 350 U.S. 846 (1955). See supra, nn. 418
U.S. 323 fn4/31|>31-32. Moreover, some courts require that
punitive damages bear a reasonable relation to the compensatory
damages award. [ Footnote 4/34 ]
Still others bar common law punitive damages or condition their
award on a refusal to print a retraction. [ Footnote 4/35 ]

															"The danger . . . of immoderate verdicts is certainly a real
one, and the criterion to be applied by the judge in setting or
reducing the amount is concededly a vague and subjective one.
Nevertheless, the verdict may be twice submitted by the complaining
defendant to the common sense of trained judicial minds, once on
motion for new trial and again on appeal, and it must be a rare
instance when an unjustifiable award escapes correction."

															C. McCormick, supra, § 77, p. 278.

															The Court points to absolutely no empirical evidence to
substantiate its premise. For my part, I would require something
more substantial than an undifferentiated fear of unduly burdensome
punitive damages awards before retooling the established common law
rule and depriving the States of the opportunity to experiment with
different methods for guarding against abuses.

															Even assuming the possibility that some verdicts will be
"excessive," I cannot subscribe to the Court's remedy. On its face,
it is a classic example of judicial overkill. Apparently abandoning
the salutary New York Times policy of case-by-case

															"'independent examination of the whole record' . . . so as to
assure ourselves that the judgment does not constitute a forbidden
intrusion on Page 418 U. S. 398 the field of free expression, [ Footnote 4/36 ]"

															the Court substitutes an inflexible rule barring recovery of
punitive damages absent proof of constitutional malice. The First
Amendment is a majestic statement of a free people's dedication to
"uninhibited, robust, and wide-open" debate on public issues,
[ Footnote 4/37 ] but we do it a
grave disservice when we needlessly spend its force. [ Footnote 4/38 ] For almost 200 years,
punitive damages and the First Amendment have peacefully coexisted.
There has been no demonstration that state libel laws as they
relate to punitive damages necessitate the majority's extreme
response. I fear that those who read the Court's decision will find
its words inaudible, for the Court speaks "only [with] a voice of
power, not of reason." Mapp v. Ohio, 367 U.
S. 643 , 367 U. S. 686 (1961) (Harlan, J., dissenting). V In disagreeing with the Court on the First Amendment's reach in
the area of state libel laws protecting nonpublic persons, I do not
repudiate the principle that the First Amendment

															"rests on the assumption that the widest possible dissemination
of information from diverse and antagonistic sources is essential
to the welfare of the public, that a free press is a condition of a
free society." Associated Press v. United States, 326 U. S.
1 , 326 U. S. 20 (1945); see also Miami Herald Publishing Co. v. Tornillo,
ante at 418 U. S. 260 (WHITE, J., concurring). I continue to subscribe to the New
York Times decision and those decisions extending its
protection to defamatory falsehoods about public persons. My
quarrel with the Court stems Page 418 U. S. 399 from its willingness "to sacrifice good sense to a syllogism"
[ Footnote 4/39 ] -- to find in the New York Times doctrine an infinite elasticity.
Unfortunately, this expansion is the latest manifestation of the
destructive potential of any good idea carried out to its logical
extreme.

															Recovery under common law standards for defamatory falsehoods
about a private individual, who enjoys no "general fame or
notoriety in the community," who is not "pervasive[ly] involve[d]
in the affairs of society," and who does not "thrust himself into
the vortex of [a given] public issue . . . in an attempt to
influence its outcome," [ Footnote
4/40 ] is simply not forbidden by the First Amendment. A
distinguished private study group put it this way:

															"Accountability, like subjection to law, is not necessarily a
net subtraction from liberty. . . . The First Amendment was
intended to guarantee free expression, not to create a privileged
industry."

															Commission on Freedom of the Press, A Free and Responsible Press
130, 81 (1947).

															I fail to see how the quality or quantity of public debate will
be promoted by further emasculation of state libel laws for the
benefit of the news media. [ Footnote
4/41 ] If anything, Page 418 U. S. 400 this trend may provoke a new and radical imbalance in the
communications process. Cf. Barron, Access to the Pres --
A New First Amendment Right, 80 Harv.L.Rev. 1641, 1657 (1967). It
is not at all inconceivable that virtually unrestrained defamatory
remarks about private citizens will discourage them from speaking
out and concerning themselves with social problems. This would turn
the First Amendment on its head. Note, The Scope of First Amendment
Protection for Good-Faith Defamatory Error, 75 Yale L.J. 642, 649
(1966); Merin, 11 Wm. & Mary L.Rev. at 418. David Riesman,
writing in the midst of World War II on the fascists' effective use
of defamatory attacks on their opponents, commented:

															"Thus it is that the law of libel, with its ecclesiastic
background and domestic character, its aura of heart-balm suits and
crusading nineteenth-century editors, becomes suddenly important
for modern democratic survival."

															Democracy and Defamation: Fair Game and Fair Comment I, 42
Col.L.Rev. 1085, 1088 (1942).

															This case ultimately comes down to the importance the Court
attaches to society's "pervasive and strong interest in preventing
and redressing attacks upon reputation." Rosenblatt v.
Baer, 383 U.S. at 383 U. S. 86 .
From all that I have seen, the Court has miscalculated and
denigrates that interest at a time when escalating assaults on
individuality and personal dignity counsel otherwise. [ Footnote 4/42 ] Page 418 U. S. 401 At the very least, the issue is highly debatable, and the Court
has not carried its heavy burden of proof to justify tampering with
state libel laws. [ Footnote
4/43 ] Page 418 U. S. 402 While some risk of exposure "is a concomitant of life in a
civilized community," Time, Inc. v. Hill, 385 U.
S. 374 , 385 U. S. 388 (1967), the private citizen does not bargain for defamatory
falsehoods. Nor is society powerless to vindicate unfair injury to
his reputation.

															"It is a fallacy . . . to assume that the First Amendment is the
only guidepost in the area of state defamation laws. It is not. . .
."

															"The right of a man to the protection of his own reputation from
unjustified invasion and wrongful hurt reflects no more than our
basic concept of the essential dignity and worth of every human
being -- a concept at the root of any decent system of ordered
liberty. The protection of private personality, like the protection
of life itself, is left primarily to the individual States under
the Ninth and Tenth Amendments. But this does not mean that the
right is entitled to any less recognition by this Court as a basic
of our constitutional system." Rosenblatt v. Baer, supra, at 383 U. S. 92 (STEWART, J., concurring).

															The case against razing state libel laws is compelling when
considered in light of the increasingly prominent role of mass
media in our society and the awesome power it has placed in the
hands of a select few. [ Footnote
4/44 ] Surely, our political "system cannot flourish if
regimentation takes hold." Public Utilities Comm'n v.
Pollak, 343 U. S. 451 , 343 U. S. 469 (1952) (DOUGLAS, J., dissenting). Nor can it survive if our people
are deprived of an effective method Page 418 U. S. 403 of vindicating . their legitimate interest in their good names.
[ Footnote 4/45 ]

															Freedom and human dignity and decency are not antithetical.
Indeed, they cannot survive without each other. Both exist
side-by-side in precarious balance, one always threatening to
overwhelm the other. Our experience as a Nation testifies to the
ability of our democratic institutions to harness this dynamic
tension. One of the mechanisms seized upon by the common law to
accommodate these forces was the civil libel action tried before a
jury of average citizens. And it has essentially fulfilled its
role. Not because it is necessarily the best or only answer, but
because

															"the juristic philosophy of the common law is, at bottom, the
philosophy of pragmatism. Its truth is relative, not absolute. The
rule that functions well produces a title deed to recognition."

															B. Cardozo, Selected Writings 149 (Hall ed.1947).

															In our federal system, there must be room for allowing the
States to take diverse approaches to these vexing questions. We
should

															"continue to forbear from fettering the States with an adamant
rule which may embarrass them in coping with their own peculiar
problems. . . ." Mapp v. Ohio, 367 U.S. at 367 U. S. 681 (Harlan, J., dissenting); see also Murnaghan, From Figment
to Fiction to Philosophy -- The Requirement of Proof of Damages in
Libel Actions, 22 Cath.U.L.Rev. 1, 38 (1972). Page 418 U. S. 404 Cf. Younger v. Harris, 401 U. S.
37 , 401 U. S. 44 -45
(1971). Whether or not the course followed by the majority is wise,
and I have indicated my doubts that it is, our constitutional
scheme compels a proper respect for the role of the States in
acquitting their duty to obey the Constitution. Finding no evidence
that they have shirked this responsibility, particularly when the
law of defamation is even now in transition, I would await some
demonstration of the diminution of freedom of expression before
acting.

															For the foregoing reasons, I would reverse the judgment of the
Court of Appeals and reinstate the jury's verdict.

															[ Footnote 4/1 ]

															Restatement of Torts § 559 (1938); see also W. Prosser,
Law of Torts § 111, p. 739 (4th ed.1971); 1 A. Hanson, Libel and
Related Torts 14, pp. 21-22 (1969); 1 F. Harper & F. James, The
Law of Torts § 5.1, pp. 349-350 (1956).

															[ Footnote 4/2 ]

															The observations in 418 U. S. first published in 1938, and Tentative Drafts Nos. 11 and 12 of
Restatement of Torts (Second), released in 1965 and 1966,
respectively. The recent transmittal of Tentative Draft No. 20,
dated April 25, 1974, to the American Law Institute for its
consideration has resulted in the elimination of much of the
discussion of the prevailing defamation rules and the suggested
changes in many of the rules themselves previously found in the
earlier Tentative Drafts. This development appears to have been
largely influenced by the draftsmen's "sense for where the law of
this important subject should be thought to stand." Restatement
(Second) of Torts, p. vii (Tent.Draft No. 20, Apr. 25, 1974). It is
evident that, to a large extent, these latest views are colored by
the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). See, e.g., Restatement (Second) of Torts, supra at xiii, §§ 569, 580, 581A, 581B, 621. There is no
indication in the latest draft, however, that the conclusions
reached in Tentative Drafts Nos. 11 and 12 are not an accurate
reflection of the case law in the States in the mid-1960's, prior
to the developments occasioned by the plurality opinion in
Rosenbloom. See infra at 418 U. S.
374 -375.

															[ Footnote 4/3 ] See also W. Prosser, supra, 418
U.S. 323 fn4/1|>n. 1, § 112, p. 752 and n. 85; Murnaghan,
From Figment to Fiction to Philosophy -- The Requirement of Proof
of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 11-13 (1972).

															[ Footnote 4/4 ]

															Proof of the defamation itself established the fact of injury
and the existence of some damage to the right of reputation, and
the jury was permitted, even without any other evidence, to assess
damages that were considered to be the natural or probable
consequences of the defamatory words. Restatement of Torts § 621,
comment a, p. 314 (1938); see also C. Gatley, Libel and
Slander 1004 (6th ed.1967); M. Newell, Slander and Libel § 721, p.
810 (4th ed.1924); see generally C. McCormick, Law of
Damages § 116, pp. 422-430 (1935). In this respect, therefore, the
damages were presumed because of the impossibility of affixing an
exact monetary amount for present and future injury to the
plaintiff's reputation, wounded feelings and humiliation, loss of
business, and any consequential physical illness or pain. Ibid. [ Footnote 4/5 ] See also Prosser, supra, 418
U.S. 323 fn4/1|>n. 1, § 112, p. 761; Harper & James, supra, 418
U.S. 323 fn4/1|>n. 1, § 5.14, p. 388; Note, Developments in
the Law -- Defamation, 69 Harv.L.Rev. 875, 939-940 (1956).

															[ Footnote 4/6 ]

															Also actionable per se were those libels where the
imputation, although not apparent from the material itself, would
have been slander per se if spoken, rather than
written.

															[ Footnote 4/7 ]

															Restatement (Second) of Torts § 569, pp. 29-45, 47-48
(Tent.Draft No. 12, Apr. 27, 1966); see also Murnaghan, supra, 418
U.S. 323 fn4/3|>n. 3.

															[ Footnote 4/8 ]

															Applying settled Illinois law, the District Court in this case
held that it is libel per se to label someone a Communist. 306 F.
Supp. 310 (ND Ill.1969).

															[ Footnote 4/9 ]

															This appears to have been the law in Illinois at the time Gertz
brought his libel suit. See, e.g., Brewer v. Hearst Publishing
Co., 185 F.2d 846 (CA7 1950); Hotz v. Alton Telegraph
Printing Co., 324 Ill.App. 1, 57 N.E.2d 137 (1944); Cooper
v. Illinois Publishing & Printing Co., 218 Ill.App. 95
(1920).

															[ Footnote 4/10 ] See, e.g., West v. Northern Publishing
Co., 487 P.2d 1304 ,
1305-1306 (Alaska 1971) (article linking owners of taxicab
companies to illegal liquor sales to minors); Gallman v.
Carnes, 254 Ark. 987, 992, 497 S.W.2d
47 , 50 (1973) (matter concerning state law school professor and
assistant dean); Belli v. Curtis Publishing
Co., 25 Cal. App. 3d
384 , 102 Cal. Rptr. 122 (1972) (article concerning attorney
with national reputation); Moriarty v. Lippe, 162
Conn.371, 378379, 294 A.2d 326, 330-331 (1972) (publication about
certain police officers); Firestone v. Time,
Inc., 271 So. 2d
745 , 750-751 (Fla.1972) (divorce of prominent citizen not a
matter of legitimate public concern); State v.
Snyder, 277 So.
2d 660 , 666-668 (La.1973) (criminal defamation prosecution of a
defeated mayoral candidate for statements made about another
candidate); Twohi v. Boston Herald-Traveler Corp., ___
Mass. ___, 291
N.E.2d 398 , 400-401 (1973) (article concerning a candidate's
votes in the legislature); Priestley v. Hastings & Sons
Publishing Co. of Lynn, 360 Mass. 118, 271
N.E.2d 628 (1971) (article about an architect commissioned by a
town to build a school); Harnish v. Herald-Mail Co., Inc., 264 Md. 326, 334-336, 286 A.2d 146, 151 (1972) (article concerning
substandard rental property owned by a member of a city housing
authority); Standke v. B. E. Darby & Sons, Inc., 291
Minn. 468, 476-477, 193 N.W.2d
139 , 145 (1971) (newspaper editorial concerning performance of
grand jurors); Whitmore v. Kansas City Star
Co., 499 S.W.2d
45 , 49 (Mo.Ct.App. 1973) (article

															brk:

															concerning a juvenile officer, the operation of a detention
home, and a grand jury investigation); Trails West, Inc. v.
Wolff, 32
N.Y.2d 207 , 214-218, 298 N.E.2d 52, 55-58 (1973) (suit against
a Congressman for an investigation into the death of schoolchildren
in a bus accident); Twenty-five East 40th Street Restaurant
Corp. v. Forbes, Inc., 30 N.Y.2d 595, 282 N.E.2d 118 (1972)
(magazine article concerning a restaurant's food); Kent v. City
of Buffalo, 29 N.Y.2d 818, 277 N.E.2d 669 (1971) (television
station film of plaintiff as a captured robber); Frink v.
McEldowney, 29 N.Y.2d 720, 275 N.E.2d 337 (1971) (article
concerning an attorney representing a town); Mead v. Horvitz
Publishing Co. (9th Dist. Ohio Ct.App. June 13, 1973)
(unpublished), cert. denied, 416 U.S. 985 (1974)
(financial condition of participants in the development of a large
apartment complex involving numerous local contractors); Washington v. World Publishing Co., 506 P.2d 913 (Okla.1973) (article about contract dispute between a candidate for
United States Senate and his party's county chairman); Matus v.
Triangle Publications, Inc., 445 Pa. 384, 395-399, 286 A.2d
357, 363-365 (1971) (radio "talk show" host's discussion of gross
overcharging for snowplowing a driveway not considered an event of
public or general concern); Autobuses Internacionales S. De
R.L., Ltd. v. El Continental Publishing Co., 483 S.W.2d 506
(Tex.Ct. Civ.App. 1972) (newspaper article concerning a bus
company's raising of fares without notice and in violation of law); Sanders v. Harris, 213 Va. 369, 372-373, 192 S.E.2d
754 , 757-758 (1972) (article concerning English professor at a
community college); Old Dominion Branch No. 496 v. Austin, 213 Va. 377, 192 S.E.2d
737 (1972), rev'd, ante, p. 418 U. S. 264 (plaintiff's failure to join a labor union considered not an issue
of public or general concern); Chase v. Daily Record,
Inc., 83 Wash. 2d
37 , 41, 515 P.2d
154 , 156 (1973) (article concerning port district
commissioner); Miller v. .Argus Publishing
Co., 79 Wash. 2d
816 , 827, 490 P.2d
101 , 109 (1971) (article concerning the backer of political
candidates); Polzing v. Helmbrecht, 54 Wis.2d 578, 586, 196 N.W.2d
685 , 690 (1972) (letter to editor of newspaper concerning a
reporter and the financing of pollution control measures).

															The following United States Courts of Appeals have adopted the
plurality opinion in Rosenbloom: Cantrell v. Forest City
Publishing Co., 484 F.2d 150 (CA6 1973), cert.
pending, No. 73-5520 (article concerning family members of the
victim of a highly publicized bridge disaster not actionable absent
proof of actual malice); Porter v. Guam Publications,
Inc., 475 F.2d 744, 745 (CA9 1973) (article concerning
citizen's arrest for theft of a cash box considered an event of
general or public interest); Cervantes v. Time, Inc., 464
F.2d 986, 991 (CA8 1972) (article concerning mayor and alleged
organized crime connections conceded to be a matter of public or
general concern); Firestone v. Time, Inc., 460 F.2d 712
(CA5 1972) (magazine article concerning prominent citizen's use of
detectives and electronic surveillance in connection with a
divorce); Davis v. National Broadcasting Co., 447 F.2d 981
(CA5 1971), aff'g 320 F.
Supp. 1070 (ED La.1970) (television report about a person
caught up in the events surrounding the assassination of President
Kennedy considered a matter of public interest). However, at least
one Court of Appeals, faced with an appeal from summary judgment in
favor of a publisher in a diversity libel suit brought by a
Philadelphia retailer, has expressed "discomfort in accepting the Rosenbloom plurality opinion as a definitive statement of
the appropriate law. . . ." Gordon v. Random House, Inc., 486 F.2d 1356, 1359 (CA3 1973).

															As previously discussed in 418
U.S. 323 fn4/2|>n. 2, supra, the latest proposed
draft of Restatement (Second) of Torts substantially reflects the
views of the Rosenbloom plurality. It also anticipates
"that the Supreme Court will hold that strict liability for
defamation is inconsistent with the free speech provision of the
First Amendment . . . ," Restatement (Second) of Torts § 569, p. 59
(Tent.Draft No. 20, Apr. 25, 1974), as well as the demise of
pre- Rosenbloom damages rules. See id. § 621, pp.
285-288.

															[ Footnote 4/11 ]

															Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev.
371, 373 (1969).

															[ Footnote 4/12 ]

															A. Sutherland, Constitutionalism in America: Origin and
Evolution of Its Fundamental Ideas 118-119 (1965).

															[ Footnote 4/13 ] See generally L. Levy, Legacy of Suppression: Freedom
of Speech and Press in Early American History (1960).

															[ Footnote 4/14 ]

															The men who wrote and adopted the First Amendment were steeped
in the common law tradition of England. They read Blackstone, "a
classic tradition of the bar in the United States" and "the oracle
of the common law in the minds of the American Framers. . . ." J.
Hurst, The Growth of American Law: The Law Makers 257 (1950); Levy, supra, 418
U.S. 323 fn4/13|>n. 13, at 13; see also Sutherland, supra, 418
U.S. 323 fn4/12|>n. 12, at 124-125; Schick v. United
States, 195 U. S. 65 , 195 U. S. 69 (1904). From him they learned that the major means of accomplishing
free speech and press was to prevent prior restraints, the
publisher later being subject to legal action if his publication
was injurious. 4 W. Blackstone, Commentaries *150-153.

															[ Footnote 4/15 ] See also Meiklejohn, The First Amendment Is An
Absolute, 1961 Sup.Ct.Rev. 245, 264:

															"First, the Framers initiated a political revolution whose
develop ment is still in process throughout the world. Second, like
most revolutionaries, the Framers could not foresee the specific
issues which would arise as their 'novel idea' exercised its
domination over the governing activities of a rapidly developing
nation in a rapidly and fundamentally changing world. In that
sense, the Framers did not know what they were doing. And in the
same sense, it is still true that, after two centuries of
experience, we do not know what they were doing, or what we
ourselves are now doing."

															"In a more abstract and more significant sense, however, both
they and we have been aware that the adoption of the principle of
self-government by 'The People' of this nation set loose upon us
and upon the world at large an idea which is still transforming
men's conceptions of what they are and how they may best be
governed."

															[ Footnote 4/16 ] See Beauharnais v. Illinois, 343 U.
S. 250 , 343 U. S. 272 (1952) (Black, J., dissenting). Brant, who interprets the Framers'
intention more liberally than Chafee, nevertheless saw the free
speech protection as bearing upon criticism of government and other
political speech. I. Brant, The Bill of Rights 236 (1965).

															[ Footnote 4/17 ]

															Z. Chafee, Free Speech in the United States 14 (1954).

															[ Footnote 4/18 ] See 1 Annals of Cong. 729-789 (1789). See also Brant, supra, 418
U.S. 323 fn4/16|>n. 16, at 224; Levy, supra, 418
U.S. 323 fn4/13|>n. 13, at 214, 224.

															[ Footnote 4/19 ]

															Merin, supra, 418
U.S. 323 fn4/11|>n. 11, at 377. Franklin, for example,
observed:

															"If by the Liberty of the Press were understood merely
the Liberty of discussing the Propriety of Public Measures and
political opinions, let us have as much of it as you please; but if
it means the Liberty of affronting, calumniating, and defaming one
another, I, for my part, own myself willing to part with my Share
of it when our Legislators shall please so to alter the Law, and
shall cheerfully consent to exchange my Liberty of Abusing
others for the Privilege of not being abused myself."

															10 B. Franklin, Writings 38 (Smyth ed.1907).

															[ Footnote 4/20 ]

															Jefferson's noted opposition to public prosecutions for libel of
government figures did not extend to depriving them of private
libel actions. Mott, supra, at 43. There is even a strong
suggestion that he favored state prosecutions. E.g., Hudon, Freedom of Speech and Press in America 47-48 (1963).

															[ Footnote 4/21 ]

															For further expressions of the general proposition that libels
are not protected by the First Amendment, see Konigsberg v.
State Bar of California, 366 U. S. 36 , 366 U. S. 49 -50
and n. 10 (1961); Time Film Corp. v. City of Chicago, 365 U. S. 43 , 365 U. S. 48 (1961); Pennekamp v. Florida, 328 U.
S. 331 , 328 U. S.
348 -349 (1946); cf. Paris Adult Theatre I v.
Slaton, 413 U. S. 49 , 413 U. S. 67 (1973); Stanley v. Georgia, 394 U.
S. 557 , 394 U. S. 561 in 5 (1969)

															[ Footnote 4/22 ] See Levy, supra, 418
U.S. 323 fn4/13|>n. 13, at 247-248.

															[ Footnote 4/23 ] See, e.g., Abrams v. United States, 250 U.
S. 616 , 250 U. S. 630 (1919) (Holmes, J., dissenting).

															[ Footnote 4/24 ]

															Kalven, The New York Times Case: A Note on "The Central
Meaning of the First Amendment," 1964 Sup.Ct.Rev.191, 208-209.

															[ Footnote 4/25 ]

															"The language of the First Amendment is to be read not as barren
words found in a dictionary, but as symbols of historic experience
illumined by the presuppositions of those who employed them. . . .
As in the case of every other provision of the Constitution that is
not crystallized by the nature of its technical concepts, the fact
that the First Amendment is not self-defining and self-enforcing
neither impairs its usefulness nor compels its paralysis as a
living instrument." Dennis v. United States, 341 U.
S. 494 , 341 U. S. 523 (1951) (Frankfurter, J., concurring).

															[ Footnote 4/26 ]

															"[T]he law of defamation has been an integral part of the laws
of England, the colonies and the states since time immemorial. So
many actions have been maintained and judgments recovered under the
various laws of libel that the Constitutional validity of libel
actions could be denied only by a Court willing to hold all of its
predecessors were wrong in their interpretation of the First
Amendment, and that two hundred years of precedents should be
overruled."

															Rutledge, The Law of Defamation: Recent Developments, 32 Alabama
Lawyer 409, 410 (1971).

															The prevailing common law libel rules in this country have
remained in England and the Commonwealth nations. Pedrick, Freedom
of the Press and the Law of Libel: The Modern Revised Translation,
49 Cornell L.Q. 581, 583-584 (1964). After many years of reviewing
the English law of defamation, the Porter Committee concluded that,
"though the law as to defamation requires some modification, the
basic principles upon which it is founded are not amiss." Report of
the Committee on the Law of Defamation, Cmd. No. 7536, � 222, p. 48
(1948).

															[ Footnote 4/27 ]

															If I read the Court correctly, it clearly implies that, for
those publications that do not make "substantial danger to
reputation apparent," the New York Times actual malice
standard will apply. Apparently this would be true even where the
imputation concerned conduct or a condition that would be per
se slander.

															[ Footnote 4/28 ]

															A recent study has comprehensively detailed the role and impact
of mass communications in this Nation. See Note, Media and
the First Amendment in a Free Society, 60 Geo.L.J. 867 (1972). For
example, 99% of the American households have a radio, and 77% hear
at least one radio newscast daily. In 1970, the yearly average home
television viewing time was almost six hours per day. Id. at 883 n. 53.

															"Sixty years ago, 2,442 newspapers were published daily
nationwide, and 689 cities had competing dailies. Today, in only 42
of the cities served by one of the 1,748 American daily papers is
there a competing newspaper under separate ownership. Total daily
circulation has passed 62 million copies, but over 40 percent of
this circulation is controlled by only 25 ownership groups."

															"Newspaper owners have profited greatly from the consolidation
of the journalism industry. Several of them report yearly profits
in the tens of millions of dollars, with after-tax profits ranging
from seven to 14 percent of gross revenues. Unfortunately, the
owners have made their profits at the expense of the public
interest in free expression. As the broad base of newspaper
ownership narrows, the variation of facts and opinions received by
the public from antagonistic sources is increasingly limited.
Newspaper publication is indeed a leading American industry.
Through its evolution in this direction, the press has come to be
dominated by a select group whose prime interest is economic."

															"The effect of consolidation within the newspaper industry is
magnified by the degree of intermediate ownership. Sixty-eight
cities have a radio station owned by the only local daily
newspaper, and 160 television stations have newspaper affiliations.
In 11 cities, diversity of ownership is completely lacking, with
the only television station and newspaper under the same
control." Id. at 892-893 (footnotes omitted). See also Congress, FCC Consider Newspaper Control of Local TV, 32 Cong.Q.
659-663 (1974).

															[ Footnote 4/29 ]

															Having held that the defamation plaintiff is limited to
recovering for "actual injury," the Court hastens to add:

															"Suffice it to say that actual injury is not limited to
out-of-pocket loss. Indeed, the more customary types of actual harm
inflicted by defamatory falsehood include impairment of reputation
and standing in the community, personal humiliation, and mental
anguish and suffering." Ante at 418 U. S. 350 .
It should be pointed out that, under the prevailing law, where the
defamation is not actionable per se and proof of "special
damage" is required, a showing of actual injury to reputation is
insufficient; but if pecuniary loss is shown, general reputation
damages are recoverable. The Court changes the latter, but not the
former, rule. Also under present law, pain and suffering, although
shown, do not warrant damages in any defamation action unless the
plaintiff is otherwise entitled to at least nominal damages. By
imposing a more difficult standard of liability and requiring proof
of actual damage to reputation, recovery for pain and suffering,
though real, becomes a much more remote possibility.

															[ Footnote 4/30 ]

															"The harm resulting from an injury to reputation is difficult to
demonstrate both because it may involve subtle differences in the
conduct of the recipients toward the plaintiff and because the
recipients, the only witnesses able to establish the necessary
causal connection, may be reluctant to testify that the publication
affected their relationships with the plaintiff. Thus, some
presumptions are necessary if the plaintiff is to be adequately
compensated."

															Note, Developments in the Law -- Defamation, 69 Harv.L.Rev. 875,
891-892 (1956).

															[ Footnote 4/31 ]

															"On questions of damages, the judge plays an important role. It
is, of course, for him to determine and instruct the jury as to
what matters may be taken into consideration by them in arriving at
a verdict, since such questions are clearly matters of substantive
law. But the judge also may and frequently does exercise a judgment
as to the amount of damages the plaintiff may recover. His function
here is primarily to keep the jury within bounds of reason and
common sense, to guard against excessive verdicts dictated by
passion and prejudice and to see to it that the amount of the
verdict has some reasonable relation to the plaintiff's evidence as
to his loss or the probability of loss. Thus, the trial judge may
grant a new trial, or the appellate court may reverse and remand
the case for a new trial, because of excessive damages or, as is
more frequently the case, a remittitur may be ordered, the effect
of which is that the plaintiff must accept a specified reduction of
his damages or submit to a new trial on the issue of liability as
well as damages."

															1 F. Harper & F. James, The Law of Torts § 5.29, p. 467
(1956) (footnote omitted).

															[ Footnote 4/32 ] See Pedrick, supra, 418
U.S. 323 fn4/26|>n. 26, at 587 n. 23.

															[ Footnote 4/33 ]

															Murnaghan, supra, 418
U.S. 323 fn4/3|>n. 3, at 29.

															[ Footnote 4/34 ]

															Note, Developments in the Law -- Defamation, 69 Harv.L.Rev., supra, at 875, 938 and n. 443.

															[ Footnote 4/35 ] Id. at 939, 941-942. See, e.g., Cal.Civ.Code §
48a(2) (1954).

															[ Footnote 4/36 ]

															376 U.S. at 376 U. S.
285 .

															[ Footnote 4/37 ] Id. at 376 U. S.
270 .

															[ Footnote 4/38 ]

															Judicial review of jury libel awards for excessiveness should be
influenced by First Amendment considerations, but it makes little
sense to discard an otherwise useful and time-tested rule because
it might be misapplied in a few cases.

															[ Footnote 4/39 ]

															O. Holmes, The Common Law 36 (1881).

															[ Footnote 4/40 ] Ante at 418 U. S. 351 , 418 U. S.
352 .

															[ Footnote 4/41 ] Cf. Pedrick, supra, 418
U.S. 323 fn4/26|>n. 26, at 601-602:

															"A great many forces in our society operate to determine the
extent to which men are free, in fact, to express their ideas.
Whether there is a privilege for good faith defamatory
misstatements on matters of public concern or whether there is
strict liability for such statements may not greatly affect the
course of public discussion. How different has life been in those
states which heretofore followed the majority rule imposing strict
liability for misstatements of fact defaming public figures from
life in the minority states where the good faith privilege held
sway?" See also T. Emerson, The System of Freedom of
Expression 519 (1970) (footnote omitted):

															"[O]n the whole the role of libel law in the system of freedom
of expression has been relatively minor and essentially
erratic."

															[ Footnote 4/42 ]

															"The man who is compelled to live every minute of his life among
others, and whose every need, thought, desire, fancy or
gratification is subject to public scrutiny, has been deprived of
his individuality and human dignity. Such an individual merges with
the mass. His opinions, being public, tend never to be different;
his aspirations, being known, tend always to be conventionally
accepted ones; his feelings, being openly exhibited, tend to lose
their quality of unique personal warmth and to become the feelings
of every man. Such a being, although sentient, is fungible; he is
not an individual."

															Bloustein, Privacy as an Aspect of Human Dignity: An Answer to
Dean Prosser, 39 N.Y.U.L.Rev. 962, 1003 (1964).

															[ Footnote 4/43 ]

															With the evisceration of the common law libel remedy for the
private citizen, the Court removes from his legal arsenal the most
effective weapon to combat assault on personal reputation by the
press establishment. The David and Goliath nature of this
relationship is all the more accentuated by the Court's holding
today in Miami Herald Publishing Co. v. Tornillo, ante p. 418 U. S. 241 ,
which I have joined, that an individual criticized by a newspaper's
editorial is precluded by the First Amendment from requiring that
newspaper to print his reply to that attack. While that case
involves an announced candidate for public office, the Court's
finding of a First Amendment barrier to government "intrusion into
the function of editors," ante at 418 U. S. 258 ,
does not rest on any distinction between private citizens or public
officials. In fact, the Court observes that the First Amendment
clearly protects from governmental restraint "the exercise of
editorial control and judgment," i.e., "[t]he choice of material to go into a newspaper, and the
decisions made as to limitations on the size and content of the
paper, and treatment of public issues and public officials -- whether fair or unfair. . . ." Ibid. (Emphasis added.)

															We must, therefore, assume that the hapless ordinary citizen
libeled by the press (a) may not enjoin in advance of publication a
story about him, regardless of how libelous it may be, Near v.
Minnesota ex rel. Olson, 283 U. S. 697 (1931); (b) may not compel the newspaper to print his reply; and
(c) may not force the newspaper to print a retraction, because a
judicially compelled retraction, like a "remedy such as an
enforceable right of access," entails "governmental coercion" as to
content, which

															"at once brings about a confrontation with the express
provisions of the First Amendment and the judicial gloss on that
Amendment developed over the years." Miami Herald Publishing Co. v. Tornillo, ante at 418 U. S. 254 ; but cf. this case, ante at 418 U. S. 368 n. 3 (BRENNAN, J., dissenting).

															My Brother BRENNAN also suggests that there may constitutionally
be room for

															"the possible enactment of statutes, not requiring proof of
fault, which provide . . . for publication of a court's
determination of falsity if the plaintiff is able to demonstrate
that false statements have been published concerning his
activities." Ibid. The Court, however, does not even consider this
less drastic alternative to its new "some fault" libel
standards.

															[ Footnote 4/44 ] See 418
U.S. 323 fn4/28|>n. 28, supra. [ Footnote 4/45 ]

															"No democracy, . . . certainly not the American democracy, will
indefinitely tolerate concentrations of private power irresponsible
and strong enough to thwart the aspirations of the people.
Eventually governmental power will be used to break up private
power, or governmental power will be used to regulate private power
-- if private power is at once great and irresponsible."

															Commission on Freedom of the Press, A Free and Responsible Press
80 (1947).