U.S. Supreme Court New York Times Co. v. Sullivan, 376
U.S. 254 (1964) New York Times Co. v.
Sullivan No. 39 Argued January 6,
1964 Decided March 9, 1964 376
U.S. 254 ast|>* 376
U.S. 254 CERTIORARI TO THE SUPREME COURT OF
ALABAMA Syllabus Respondent, an elected official in Montgomery, Alabama, brought
suit in a state court alleging that he had been libeled by an
advertisement in corporate petitioner's newspaper, the text of
which appeared over the names of the four individual petitioners
and many others. The advertisement included statements, some of
which were false, about police action allegedly directed against
students who participated in a civil rights demonstration and
against a leader of the civil rights movement; respondent claimed
the statements referred to him because his duties included
supervision of the police department. The trial judge instructed
the jury that such statements were "libelous per se, "
legal injury being implied without proof of actual damages, and
that, for the purpose of compensatory damages, malice was presumed,
so that such damages could be awarded against petitioners if the
statements were found to have been published by them and to have
related to respondent. As to punitive damages, the judge instructed
that mere negligence was not evidence of actual malice, and would
not justify an award of punitive damages; he refused to instruct
that actual intent to harm or recklessness had to be found before
punitive damages could be awarded, or that a verdict for respondent
should differentiate between compensatory and punitive damages. The
jury found for respondent, and the State Supreme Court
affirmed. Held: A State cannot, under the First and Fourteenth
Amendments, award damages to a public official for defamatory
falsehood relating to his official conduct unless he proves "actual
malice" -- that the statement was made with knowledge of its
falsity or with reckless disregard of whether it was true or false.
Pp. 376 U. S.
265 -292.

															(a) Application by state courts of a rule of law, whether
statutory or not, to award a judgment in a civil action, is "state
action" under the Fourteenth Amendment. P. 376 U. S.
265 .

															(b) Expression does not lose constitutional protection to which
it would otherwise be entitled because it appears in the form of a
paid advertisement. Pp. 376 U. S.
265 -266. Page 376 U. S. 255 (c) Factual error, content defamatory of official reputation, or
both, are insufficient to warrant an award of damages for false
statements unless "actual malice" -- knowledge that statements are
false or in reckless disregard of the truth -- is alleged and
proved. Pp. 376 U. S.
279 -283.

															(d) State court judgment entered upon a general verdict which
does not differentiate between punitive damages, as to which, under
state law, actual malice must be proved, and general damages, as to
which it is "presumed," precludes any determination as to the basis
of the verdict, and requires reversal, where presumption of malice
is inconsistent with federal constitutional requirements. P. 376 U. S.
284 .

															(e) The evidence was constitutionally insufficient to support
the judgment for respondent, since it failed to support a finding
that the statements were made with actual malice or that they
related to respondent. Pp. 376 U. S. 285 -292.

															273 Ala. 656, 144
So. 2d 25 , reversed and remanded. Page 376 U. S. 256 MR. JUSTICE BRENNAN delivered the opinion of the Court.

															We are required in this case to determine for the first time the
extent to which the constitutional protections for speech and press
limit a State's power to award damages in a libel action brought by
a public official against critics of his official conduct.

															Respondent L. B. Sullivan is one of the three elected
Commissioners of the City of Montgomery, Alabama. He testified that
he was

															"Commissioner of Public Affairs, and the duties are supervision
of the Police Department, Fire Department, Department of Cemetery
and Department of Scales."

															He brought this civil libel action against the four individual
petitioners, who are Negroes and Alabama clergymen, and against
petitioner the New York Times Company, a New York corporation which
publishes the New York Times, a daily newspaper. A jury in the
Circuit Court of Montgomery County awarded him damages of $500,000,
the full amount claimed, against all the petitioners, and the
Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So. 2d
25 .

															Respondent's complaint alleged that he had been libeled by
statements in a full-page advertisement that was carried in the New
York Times on March 29, 1960. [ Footnote 1 ] Entitled "Heed Their Rising Voices," the
advertisement began by stating that,

															"As the whole world knows by now, thousands of Southern Negro
students are engaged in widespread nonviolent demonstrations in
positive affirmation of the right to live in human dignity as
guaranteed by the U.S. Constitution and the Bill of Rights."

															It went on to charge that,

															"in their efforts to uphold these guarantees, they are being met
by an unprecedented wave of terror by those who would deny and
negate that document which the whole world looks upon as setting
the pattern for modern freedom. . . ."

															Succeeding Page 376 U. S. 257 paragraphs purported to illustrate the "wave of terror" by
describing certain alleged events. The text concluded with an
appeal for funds for three purposes: support of the student
movement, "the struggle for the right to vote," and the legal
defense of Dr. Martin Luther King, Jr., leader of the movement,
against a perjury indictment then pending in Montgomery.

															The text appeared over the names of 64 persons, many widely
known for their activities in public affairs, religion, trade
unions, and the performing arts. Below these names, and under a
line reading "We in the south who are struggling daily for dignity
and freedom warmly endorse this appeal," appeared the names of the
four individual petitioners and of 16 other persons, all but two of
whom were identified as clergymen in various Southern cities. The
advertisement was signed at the bottom of the page by the
"Committee to Defend Martin Luther King and the Struggle for
Freedom in the South," and the officers of the Committee were
listed.

															Of the 10 paragraphs of text in the advertisement, the third and
a portion of the sixth were the basis of respondent's claim of
libel. They read as follows:

															Third paragraph:

															"In Montgomery, Alabama, after students sang 'My Country, 'Tis
of Thee' on the State Capitol steps, their leaders were expelled
from school, and truckloads of police armed with shotguns and
tear-gas ringed the Alabama State College Campus. When the entire
student body protested to state authorities by refusing to
reregister, their dining hall was padlocked in an attempt to starve
them into submission."

															Sixth paragraph:

															"Again and again, the Southern violators have answered Dr.
King's peaceful protests with intimidation and violence. They have
bombed his home, almost killing his wife and child. They have Page 376 U. S. 258 assaulted his person. They have arrested him seven times -- for
'speeding,' 'loitering' and similar 'offenses.' And now they have
charged him with 'perjury' -- a felony under which they
could imprison him for ten years. . . ."

															Although neither of these statements mentions respondent by
name, he contended that the word "police" in the third paragraph
referred to him as the Montgomery Commissioner who supervised the
Police Department, so that he was being accused of "ringing" the
campus with police. He further claimed that the paragraph would be
read as imputing to the police, and hence to him, the padlocking of
the dining hall in order to starve the students into submission.
[ Footnote 2 ] As to the sixth
paragraph, he contended that, since arrests are ordinarily made by
the police, the statement "They have arrested [Dr. King] seven
times" would be read as referring to him; he further contended that
the "They" who did the arresting would be equated with the "They"
who committed the other described acts and with the "Southern
violators." Thus, he argued, the paragraph would be read as
accusing the Montgomery police, and hence him, of answering Dr.
King's protests with "intimidation and violence," bombing his home,
assaulting his person, and charging him with perjury. Respondent
and six other Montgomery residents testified that they read some or
all of the statements as referring to him in his capacity as
Commissioner.

															It is uncontroverted that some of the statements contained in
the two paragraphs were not accurate descriptions of events which
occurred in Montgomery. Although Negro students staged a
demonstration on the State Capitol steps, they sang the National
Anthem and not "My Page 376 U. S. 259 Country, 'Tis of Thee." Although nine students were expelled by
the State Board of Education, this was not for leading the
demonstration at the Capitol, but for demanding service at a lunch
counter in the Montgomery County Courthouse on another day. Not the
entire student body, but most of it, had protested the expulsion,
not by refusing to register, but by boycotting classes on a single
day; virtually all the students did register for the ensuing
semester. The campus dining hall was not padlocked on any occasion,
and the only students who may have been barred from eating there
were the few who had neither signed a preregistration application
nor requested temporary meal tickets. Although the police were
deployed near the campus in large numbers on three occasions, they
did not at any time "ring" the campus, and they were not called to
the campus in connection with the demonstration on the State
Capitol steps, as the third paragraph implied. Dr. King had not
been arrested seven times, but only four, and although he claimed
to have been assaulted some years earlier in connection with his
arrest for loitering outside a courtroom, one of the officers who
made the arrest denied that there was such an assault.

															On the premise that the charges in the sixth paragraph could be
read as referring to him, respondent was allowed to prove that he
had not participated in the events described. Although Dr. King's
home had, in fact, been bombed twice when his wife and child were
there, both of these occasions antedated respondent's tenure as
Commissioner, and the police were not only not implicated in the
bombings, but had made every effort to apprehend those who were.
Three of Dr. King's four arrests took place before respondent
became Commissioner. Although Dr. King had, in fact, been indicted
(he was subsequently acquitted) on two counts of perjury, each of
which carried a possible five-year sentence, respondent had nothing
to do with procuring the indictment. Page 376 U. S. 260 Respondent made no effort to prove that he suffered actual
pecuniary loss as a result of the alleged libel. [ Footnote 3 ] One of his witnesses, a former
employer, testified that, if he had believed the statements, he
doubted whether he "would want to be associated with anybody who
would be a party to such things that are stated in that ad," and
that he would not reemploy respondent if he believed "that he
allowed the Police Department to do the things that the paper say
he did." But neither this witness nor any of the others testified
that he had actually believed the statements in their supposed
reference to respondent. The cost of the advertisement was
approximately $4800, and it was published by the Times upon an
order from a New York advertising agency acting for the signatory
Committee. The agency submitted the advertisement with a letter
from A. Philip Randolph, Chairman of the Committee, certifying that
the persons whose names appeared on the advertisement had given
their permission. Mr. Randolph was known to the Times' Advertising
Acceptability Department as a responsible person, and, in accepting
the letter as sufficient proof of authorization, it followed its
established practice. There was testimony that the copy of the
advertisement which accompanied the letter listed only the 64 names
appearing under the text, and that the statement, "We in the south
. . . warmly endorse this appeal," and the list of names
thereunder, which included those of the individual petitioners,
were subsequently added when the first proof of the advertisement
was received. Each of the individual petitioners testified that he
had not authorized the use of his name, and that he had been
unaware of its use until receipt of respondent's demand for a
retraction. The manager of the Advertising Acceptability Page 376 U. S. 261 Department testified that he had approved the advertisement for
publication because he knew nothing to cause him to believe that
anything in it was false, and because it bore the endorsement of "a
number of people who are well known and whose reputation" he "had
no reason to question." Neither he nor anyone else at the Times
made an effort to confirm the accuracy of the advertisement, either
by checking it against recent Times news stories relating to some
of the described events or by any other means.

															Alabama law denies a public officer recovery of punitive damages
in a libel action brought on account of a publication concerning
his official conduct unless he first makes a written demand for a
public retraction and the defendant fails or refuses to comply.
Alabama Code, Tit. 7, § 914. Respondent served such a demand upon
each of the petitioners. None of the individual petitioners
responded to the demand, primarily because each took the position
that he had not authorized the use of his name on the
advertisement, and therefore had not published the statements that
respondent alleged had libeled him. The Times did not publish a
retraction in response to the demand, but wrote respondent a letter
stating, among other things, that "we . . . are somewhat puzzled as
to how you think the statements in any way reflect on you," and
"you might, if you desire, let us know in what respect you claim
that the statements in the advertisement reflect on you."
Respondent filed this suit a few days later without answering the
letter. The Times did, however, subsequently publish a retraction
of the advertisement upon the demand of Governor John Patterson of
Alabama, who asserted that the publication charged him with

															"grave misconduct and . . . improper actions and omissions as
Governor of Alabama and Ex-Officio Chairman of the State Board of
Education of Alabama."

															When asked to explain why there had been a retraction for the
Governor but not for respondent, the Page 376 U. S. 262 Secretary of the Times testified:

															"We did that because we didn't want anything that was published
by The Times to be a reflection on the State of Alabama, and the
Governor was, as far as we could see, the embodiment of the State
of Alabama and the proper representative of the State, and,
furthermore, we had by that time learned more of the actual facts
which the and purported to recite and, finally, the ad did refer to
the action of the State authorities and the Board of Education,
presumably of which the Governor is the ex-officio chairman. . .
."

															On the other hand, he testified that he did not think that "any
of the language in there referred to Mr. Sullivan."

															The trial judge submitted the case to the jury under
instructions that the statements in the advertisement were
"libelous per se, " and were not privileged, so that
petitioners might be held liable if the jury found that they had
published the advertisement and that the statements were made "of
and concerning" respondent. The jury was instructed that, because
the statements were libelous per se, "the law . . .
implies legal injury from the bare fact of publication itself,"
"falsity and malice are presumed," "general damages need not be
alleged or proved, but are presumed," and "punitive damages may be
awarded by the jury even though the amount of actual damages is
neither found nor shown." An award of punitive damages -- as
distinguished from "general" damages, which are compensatory in
nature -- apparently requires proof of actual malice under Alabama
law, and the judge charged that

															"mere negligence or carelessness is not evidence of actual
malice or malice in fact, and does not justify an award of
exemplary or punitive damages."

															He refused to charge, however, that the jury must be "convinced"
of malice, in the sense of "actual intent" to harm or "gross
negligence and recklessness," to make such an award, and he also
refused to require that a verdict for respondent differentiate
between compensatory and punitive damages. The judge rejected
petitioners' contention Page 376 U. S. 263 that his rulings abridged the freedoms of speech and of the
press that are guaranteed by the First and Fourteenth
Amendments.

															In affirming the judgment, the Supreme Court of Alabama
sustained the trial judge's rulings and instructions in all
respects. 273 Ala. 656, 144 So. 2d
25 . It held that,

															"where the words published tend to injure a person libeled by
them in his reputation, profession, trade or business, or charge
him with an indictable offense, or tend to bring the individual
into public contempt,"

															they are "libelous per se "; that "the matter complained
of is, under the above doctrine, libelous per se, if it
was published of and concerning the plaintiff", and that it was
actionable without "proof of pecuniary injury . . . . such injury
being implied." Id. at 673, 676, 144 So. 2d at 37, 41. It
approved the trial court's ruling that the jury could find the
statements to have been made "of and concerning" respondent,
stating:

															"We think it common knowledge that the average person knows that
municipal agents, such as police and firemen, and others, are under
the control and direction of the city governing body, and, more
particularly, under the direction and control of a single
commissioner. In measuring the performance or deficiencies of such
groups, praise or criticism is usually attached to the official in
complete control of the body." Id. at 674-675, 144 So. 2d at 39. In sustaining the
trial court's determination that the verdict was not excessive, the
court said that malice could be inferred from the Times'
"irresponsibility" in printing the advertisement while

															"the Times, in its own files, had articles already published
which would have demonstrated the falsity of the allegations in the
advertisement;"

															from the Times' failure to retract for respondent while
retracting for the Governor, whereas the falsity of some of the
allegations was then known to the Times and "the matter contained
in the advertisement was equally false as to both parties", and
from the testimony of the Times' Secretary that, Page 376 U. S. 264 apart from the statement that the dining hall was padlocked, he
thought the two paragraphs were "substantially correct." Id. at 686-687, 144 So. 2d at 50-51. The court reaffirmed
a statement in an earlier opinion that "There is no legal measure
of damages in cases of this character." Id. at 686, 144
So. 2d at 50. It rejected petitioners' constitutional contentions
with the brief statements that "The First Amendment of the U.S.
Constitution does not protect libelous publications," and "The
Fourteenth Amendment is directed against State action, and not
private action." Id. at 676, 144 So. 2d at 40.

															Because of the importance of the constitutional issues involved,
we granted the separate petitions for certiorari of the individual
petitioners and of the Times. 371 U.S. 946. We reverse the
judgment. We hold that the rule of law applied by the Alabama
courts is constitutionally deficient for failure to provide the
safeguards for freedom of speech and of the press that are required
by the First and Fourteenth Amendments in a libel action brought by
a public official against critics of his official conduct.
[ Footnote 4 ] We Page 376 U. S. 265 further hold that, under the proper safeguards, the evidence
presented in this case is constitutionally insufficient to support
the judgment for respondent. I .

															We may dispose at the outset of two grounds asserted to insulate
the judgment of the Alabama courts from constitutional scrutiny.
The first is the proposition relied on by the State Supreme Court
-- that "The Fourteenth Amendment is directed against State action,
and not private action." That proposition has no application to
this case. Although this is a civil lawsuit between private
parties, the Alabama courts have applied a state rule of law which
petitioners claim to impose invalid restrictions on their
constitutional freedoms of speech and press. It matters not that
that law has been applied in a civil action and that it is common
law only, though supplemented by statute. See, e.g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which
state power has been applied but, whatever the form, whether such
power has, in fact, been exercised. See Ex parte Virginia, 100 U. S. 339 , 100 U. S.
346 -347; American Federation of Labor v. Swing. 312 U. S. 321 .

															The second contention is that the constitutional guarantees of
freedom of speech and of the press are inapplicable here, at least
so far as the Times is concerned, because the allegedly libelous
statements were published as part of a paid, "commercial"
advertisement. The argument relies on Valentine v.
Chrestensen, 316 U. S. 52 , where
the Court held that a city ordinance forbidding street distribution
of commercial and business advertising matter did not abridge the
First Amendment freedoms, even as applied to a handbill having a
commercial message on one side but a protest against certain
official action, on the other. The reliance is wholly misplaced.
The Court in Chrestensen reaffirmed the constitutional
protection for "the freedom of communicating Page 376 U. S. 266 information and disseminating opinion"; its holding was based
upon the factual conclusions that the handbill was "purely
commercial advertising" and that the protest against official
action had been added only to evade the ordinance.

															The publication here was not a "commercial" advertisement in the
sense in which the word was used in Chrestensen. It
communicated information, expressed opinion, recited grievances,
protested claimed abuses, and sought financial support on behalf of
a movement whose existence and objectives are matters of the
highest public interest and concern. See NAACP v. Button, 371 U. S. 415 , 371 U. S. 435 .
That the Times was paid for publishing the advertisement is as
immaterial in this connection as is the fact that newspapers and
books are sold. Smith v. California, 361 U.
S. 147 , 361 U. S. 150 ; cf. Bantam Books, Inc., v. Sullivan, 372 U. S.
58 , 372 U. S. 64 , n.
6. Any other conclusion would discourage newspapers from carrying
"editorial advertisements" of this type, and so might shut off an
important outlet for the promulgation of information and ideas by
persons who do not themselves have access to publishing facilities
-- who wish to exercise their freedom of speech even though they
are not members of the press. Cf. Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 452 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 164 .
The effect would be to shackle the First Amendment in its attempt
to secure "the widest possible dissemination of information from
diverse and antagonistic sources." Associated Press v. United
States, 326 U. S. 1 , 326 U. S. 20 . To
avoid placing such a handicap upon the freedoms of expression, we
hold that, if the allegedly libelous statements would otherwise be
constitutionally protected from the present judgment, they do not
forfeit that protection because they were published in the form of
a paid advertisement. [ Footnote
5 ] Page 376 U. S. 267 II Under Alabama law, as applied in this case, a publication is
"libelous per se " if the words "tend to injure a person .
. . in his reputation" or to "bring [him] into public contempt";
the trial court stated that the standard was met if the words are
such as to "injure him in his public office, or impute misconduct
to him in his office, or want of official integrity, or want of
fidelity to a public trust. . . ." The jury must find that the
words were published "of and concerning" the plaintiff, but, where
the plaintiff is a public official, his place in the governmental
hierarchy is sufficient evidence to support a finding that his
reputation has been affected by statements that reflect upon the
agency of which he is in charge. Once "libel per se " has
been established, the defendant has no defense as to stated facts
unless he can persuade the jury that they were true in all their
particulars. Alabama Ride Co. v. Vance, 235 Ala. 263, 178
So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala.
474, 494 495, 124 So. 2d
441 , 457-458 (1960). His privilege of "fair comment" for
expressions of opinion depends on the truth of the facts upon which
the comment is based. Parsons v. Age-Herald Publishing
Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913). Unless he can
discharge the burden of proving truth, general damages are
presumed, and may be awarded without proof of pecuniary injury. A
showing of actual malice is apparently a prerequisite to recovery
of punitive damages, and the defendant may, in any event, forestall
a punitive award by a retraction meeting the statutory
requirements. Good motives and belief in truth do not negate an
inference of malice, but are relevant only in mitigation of
punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495,
124 So. 2d at 458. Page 376 U. S. 268 The question before us is whether this rule of liability, as
applied to an action brought by a public official against critics
of his official conduct, abridges the freedom of speech and of the
press that is guaranteed by the First and Fourteenth
Amendments.

															Respondent relies heavily, as did the Alabama courts, on
statements of this Court to the effect that the Constitution does
not protect libelous publications. [ Footnote 6 ] Those statements do not foreclose our inquiry
here. None of the cases sustained the use of libel laws to impose
sanctions upon expression critical of the official conduct of
public officials. The dictum in Pennekamp v. Florida, 328 U. S. 331 , 328 U. S.
348 -349, that "when the statements amount to defamation,
a judge has such remedy in damages for libel as do other public
servants," implied no view as to what remedy might constitutionally
be afforded to public officials. In Beauharnais v.
Illinois, 343 U. S. 250 , the
Court sustained an Illinois criminal libel statute as applied to a
publication held to be both defamatory of a racial group and
"liable to cause violence and disorder." But the Court was careful
to note that it "retains and exercises authority to nullify action
which encroaches on freedom of utterance under the guise of
punishing libel"; for "public men are, as it were, public
property," and "discussion cannot be denied, and the right, as well
as the duty, of criticism must not be stifled." Id. at 343 U. S.
263 -264, and n. 18. In the only previous case that did
present the question of constitutional limitations upon the power
to award damages for libel of a public official, the Court was
equally divided and the question was not decided. Schenectady
Union Pub. Co. v. Sweeney, 316 U.S. 642. Page 376 U. S. 269 In deciding the question now, we are compelled by neither
precedent nor policy to give any more weight to the epithet "libel"
than we have to other "mere labels" of state law. NAACP v.
Button, 371 U. S. 415 , 371 U. S. 429 .
Like insurrection, [ Footnote 7 ]
contempt, [ Footnote 8 ] advocacy
of unlawful acts, [ Footnote 9 ]
breach of the peace, [ Footnote
10 ] obscenity, [ Footnote
11 ] solicitation of legal business, [ Footnote 12 ] and the various other formulae for the
repression of expression that have been challenged in this Court,
libel can claim no talismanic immunity from constitutional
limitations. It must be measured by standards that satisfy the
First Amendment.

															The general proposition that freedom of expression upon public
questions is secured by the First Amendment has long been settled
by our decisions. The constitutional safeguard, we have said, "was
fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people." Roth v. United States, 354 U.
S. 476 , 354 U. S.
484 .

															"The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will
of the people and that changes may be obtained by lawful means, an
opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system." Stromberg v. California, 283 U.
S. 359 , 283 U. S. 369 .
"[I]t is a prized American privilege to speak one's mind, although
not always with perfect good taste, on all public institutions," Bridges v. California, 314 U. S. 252 , 314 U. S. 270 ,
and this opportunity is to be afforded for "vigorous advocacy" no
less than "abstract discussion." NAACP v. Button, 371 U. S. 415 , 371 U. S.
429 . Page 376 U. S. 270 The First Amendment, said Judge Learned Hand,

															"presupposes that right conclusions are more likely to be
gathered out of a multitude of tongues than through any kind of
authoritative selection. To many, this is, and always will be,
folly, but we have staked upon it our all." United States v. Associated Press, 52 F. Supp.
362 , 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in his
concurring opinion in Whitney v. California, 274 U.
S. 357 , 274 U. S.
375 -376, gave the principle its classic formulation:

															"Those who won our independence believed . . . that public
discussion is a political duty, and that this should be a
fundamental principle of the American government. They recognized
the risks to which all human institutions are subject. But they
knew that order cannot be secured merely through fear of punishment
for its infraction; that it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies, and that the fitting remedy for
evil counsels is good ones. Believing in the power of reason as
applied through public discussion, they eschewed silence coerced by
law -- the argument of force in its worst form. Recognizing the
occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be
guaranteed."

															Thus, we consider this case against the background of a profound
national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp attacks
on government and public officials. See Terminiello v.
Chicago, 337 U. S. 1 , 337 U. S. 4 ; De Jonge v. Oregon, 299 U. S. 353 , Page 376 U. S. 271 299 U. S. 365 .
The present advertisement, as an expression of grievance and
protest on one of the major public issues of our time, would seem
clearly to qualify for the constitutional protection. The question
is whether it forfeits that protection by the falsity of some of
its factual statements and by its alleged defamation of
respondent.

															Authoritative interpretations of the First Amendment guarantees
have consistently refused to recognize an exception for any test of
truth -- whether administered by judges, juries, or administrative
officials -- and especially one that puts the burden of proving
truth on the speaker. Cf. Speiser v. Randall, 357 U.
S. 513 , 357 U. S.
525 -526. The constitutional protection does not turn
upon "the truth, popularity, or social utility of the ideas and
beliefs which are offered." NAACP v. Button, 371 U.
S. 415 , 371 U. S. 445 .
As Madison said, "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 Elliot's Debates on the Federal
Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 310 ,
the Court declared:

															"In the realm of religious faith, and in that of political
belief, sharp differences arise. In both fields, the tenets of one
man may seem the rankest error to his neighbor. To persuade others
to his own point of view, the pleader, as we know, at times resorts
to exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the
people of this nation have ordained, in the light of history, that,
in spite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right
conduct on the part of the citizens of a democracy."

															That erroneous statement is inevitable in free debate, and that
it must be protected if the freedoms of expression Page 376 U. S. 272 are to have the "breathing space" that they "need . . . to
survive," NAACP v. Button, 371 U.
S. 415 , 371 U. S. 433 ,
was also recognized by the Court of Appeals for the District of
Columbia Circuit in Sweeney v. Patterson, 76 U.S.App.D.C.
23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S.
678. Judge Edgerton spoke for a unanimous court which affirmed the
dismissal of a Congressman's libel suit based upon a newspaper
article charging him with anti-Semitism in opposing a judicial
appointment. He said:

															"Cases which impose liability for erroneous reports of the
political conduct of officials reflect the obsolete doctrine that
the governed must not criticize their governors. . . . The interest
of the public here outweighs the interest of appellant or any other
individual. The protection of the public requires not merely
discussion, but information. Political conduct and views which some
respectable people approve, and others condemn, are constantly
imputed to Congressmen. Errors of fact, particularly in regard to a
man's mental states and processes, are inevitable. . . . Whatever
is added to the field of libel is taken from the field of free
debate. [ Footnote 13 ]"

															Injury to official reputation affords no more warrant for
repressing speech that would otherwise be free than does factual
error. Where judicial officers are involved, this Court has held
that concern for the dignity and Page 376 U. S. 273 reputation of the courts does not justify the punishment as
criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U. S. 252 .
This is true even though the utterance contains "half-truths" and
"misinformation." Pennekamp v. Florida, 328 U.
S. 331 , 328 U. S. 342 , 328 U. S. 343 ,
n. 5, 328 U. S. 345 .
Such repression can be justified, if at all, only by a clear and
present danger of the obstruction of justice. See also Craig v.
Harney, 331 U. S. 367 ; Wood v. Georgia, 370 U. S. 375 . If
judges are to be treated as "men of fortitude, able to thrive in a
hardy climate," Craig v. Harney, supra, 331 U.S. at 331 U. S. 376 ,
surely the same must be true of other government officials, such as
elected city commissioners. [ Footnote 14 ] Criticism of their official conduct does not
lose its constitutional protection merely because it is effective
criticism, and hence diminishes their official reputations.

															If neither factual error nor defamatory content suffices to
remove the constitutional shield from criticism of official
conduct, the combination of the two elements is no less inadequate.
This is the lesson to be drawn from the great controversy over the
Sedition Act of 1798, 1 Stat. 596, which first crystallized a
national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et
seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That statute made it a crime, punishable by a
$5,000 fine and five years in prison,

															"if any person shall write, print, utter or publish . . . any
false, scandalous and malicious Page 376 U. S. 274 writing or writings against the government of the United States,
or either house of the Congress . . . or the President . . . with
intent to defame . . . or to bring them, or either of them, into
contempt or disrepute; or to excite against them, or either or any
of them, the hatred of the good people of the United States."

															The Act allowed the defendant the defense of truth, and provided
that the jury were to be judges both of the law and the facts.
Despite these qualifications, the Act was vigorously condemned as
unconstitutional in an attack joined in by Jefferson and Madison.
In the famous Virginia Resolutions of 1798, the General Assembly of
Virginia resolved that it

															"doth particularly protest against the palpable and alarming
infractions of the Constitution in the two late cases of the 'Alien
and Sedition Acts,' passed at the last session of Congress. . . .
[The Sedition Act] exercises . . . a power not delegated by the
Constitution, but, on the contrary, expressly and positively
forbidden by one of the amendments thereto -- a power which, more
than any other, ought to produce universal alarm because it is
leveled against the right of freely examining public characters and
measures, and of free communication among the people thereon, which
has ever been justly deemed the only effectual guardian of every
other right."

															4 Elliot's Debates, supra, pp. 553-554. Madison
prepared the Report in support of the protest. His premise was that
the Constitution created a form of government under which "The
people, not the government, possess the absolute sovereignty." The
structure of the government dispersed power in reflection of the
people's distrust of concentrated power, and of power itself at all
levels. This form of government was "altogether different" from the
British form, under which the Crown was sovereign and the people
were subjects. "Is Page 376 U. S. 275 it not natural and necessary, under such different
circumstances," he asked, "that a different degree of freedom in
the use of the press should be contemplated?" Id., pp.
569-570. Earlier, in a debate in the House of Representatives,
Madison had said:

															"If we advert to the nature of Republican Government, we shall
find that the censorial power is in the people over the Government,
and not in the Government over the people."

															4 Annals of Congress, p. 934 (1794). Of the exercise of that
power by the press, his Report said:

															"In every state, probably, in the Union, the press has exerted a
freedom in canvassing the merits and measures of public men, of
every description, which has not been confined to the strict limits
of the common law. On this footing, the freedom of the press has
stood; on this foundation it yet stands. . . ."

															4 Elliot's Debates, supra, p. 570. The right of free
public discussion of the stewardship of public officials was thus,
in Madison's view, a fundamental principle of the American form of
government. [ Footnote
15 ] Page 376 U. S. 276 Although the Sedition Act was never tested in this Court,
[ Footnote 16 ] the attack
upon its validity has carried the day in the court of history.
Fines levied in its prosecution were repaid by Act of Congress on
the ground that it was unconstitutional. 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). Calhoun, reporting to the Senate on
February 4, 1836, assumed that its invalidity was a matter "which
no one now doubts." Report with Senate bill No. 122, 24th Cong.,
1st Sess., p. 3. Jefferson, as President, pardoned those who had
been convicted and sentenced under the Act and remitted their
fines, stating:

															"I discharged every person under punishment or prosecution under
the sedition law because I considered, and now consider, that law
to be a nullity, as absolute and as palpable as if Congress had
ordered us to fall down and worship a golden image."

															Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works
(Washington ed.), pp. 555, 556. The invalidity of the Act has also
been assumed by Justices of this Court. See Holmes, J.,
dissenting and joined by Brandeis, J., in Abrams v. United
States, 250 U. S. 616 , 250 U. S. 630 ;
Jackson, J., dissenting in Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S.
288 -289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed.,
Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United
States (1942), pp. 27-28. These views reflect a broad consensus
that the Act, because of the restraint it imposed upon criticism of
government and public officials, was inconsistent with the First
Amendment.

															There is no force in respondent's argument that the
constitutional limitations implicit in the history of the Sedition
Act apply only to Congress, and not to the States. It is true that
the First Amendment was originally addressed only to action by the
Federal Government, and Page 376 U. S. 277 that Jefferson, for one, while denying the power of Congress "to
controul the freedom of the press," recognized such a power in the
States. See the 1804 Letter to Abigail Adams quoted in Dennis v. United States, 341 U. S. 494 , 341 U. S. 522 ,
n. 4 (concurring opinion). But this distinction was eliminated with
the adoption of the Fourteenth Amendment and the application to the
States of the First Amendment's restrictions. See, e.g., Gitlow
v. New York, 268 U. S. 652 , 268 U. S. 666 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 160 ; Bridges v. California, 314 U. S. 252 , 314 U. S. 268 ; Edwards v. South Carolina, 372 U.
S. 229 , 372 U. S.
235 .

															What a State may not constitutionally bring about by means of a
criminal statute is likewise beyond the reach of its civil law of
libel. [ Footnote 17 ] The
fear of damage awards under a rule such as that invoked by the
Alabama courts here may be markedly more inhibiting than the fear
of prosecution under a criminal statute. See City of Chicago v.
Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923).
Alabama, for example, has a criminal libel law which subjects to
prosecution "any person who speaks, writes, or prints of and
concerning another any accusation falsely and maliciously importing
the commission by such person of a felony, or any other indictable
offense involving moral turpitude," and which allows as punishment
upon conviction a fine not exceeding $500 and a prison sentence of
six months. Alabama Code, Tit. 14, § 350. Presumably, a person
charged with violation of this statute enjoys ordinary criminal law
safeguards such as the requirements of an indictment and of proof
beyond a reasonable doubt. These safeguards are not available to
the defendant in a civil action. The judgment awarded in this case
-- without the need for any proof of actual pecuniary loss -- was
one thousand times greater than the maximum fine provided by the
Alabama criminal statute, and one hundred times greater than that
provided by the Sedition Act. Page 376 U. S. 278 And since there is no double jeopardy limitation applicable to
civil lawsuits, this is not the only judgment that may be awarded
against petitioners for the same publication. [ Footnote 18 ] Whether or not a newspaper can
survive a succession of such judgments, the pall of fear and
timidity imposed upon those who would give voice to public
criticism is an atmosphere in which the First Amendment freedoms
cannot survive. Plainly the Alabama law of civil libel is

															"a form of regulation that creates hazards to protected freedoms
markedly greater than those that attend reliance upon the criminal
law." Bantam Books, Inc. v. Sullivan, 372 U. S.
58 , 372 U. S.
70 .

															The state rule of law is not saved by its allowance of the
defense of truth. A defense for erroneous statements honestly made
is no less essential here than was the requirement of proof of
guilty knowledge which, in Smith v. California, 361 U. S. 147 , we
held indispensable to a valid conviction of a bookseller for
possessing obscene writings for sale. We said:

															"For, if the bookseller is criminally liable without knowledge
of the contents, . . . He will tend to restrict the books he sells
to those he has inspected, and thus the State will have imposed a
restriction upon the distribution of constitutionally protected, as
well as obscene, literature. . . . And the bookseller's burden
would become the public's burden, for, by restricting him, the
public's access to reading matter would be restricted. . . . [H]is
timidity in the face of his absolute criminal liability thus would
tend to restrict the public's access to forms of the printed word
which the State could not constitutionally Page 376 U. S. 279 suppress directly. The bookseller's self-censorship, compelled
by the State, would be a censorship affecting the whole public,
hardly less virulent for being privately administered. Through it,
the distribution of all books, both obscene and not obscene, would
be impeded."

															( 361 U. S. 361 U.S.
147, 361 U. S.
153 -154.) A rule compelling the critic of official
conduct to guarantee the truth of all his factual assertions -- and
to do so on pain of libel judgments virtually unlimited in amount
-- leads to a comparable "self-censorship." Allowance of the
defense of truth, with the burden of proving it on the defendant,
does not mean that only false speech will be deterred. [ Footnote 19 ] Even courts accepting
this defense as an adequate safeguard have recognized the
difficulties of adducing legal proofs that the alleged libel was
true in all its factual particulars. See, e.g., Post Publishing
Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see
also Noel, Defamation of Public Officers and Candidates, 49
Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of
official conduct may be 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. They tend to make only statements
which "steer far wider of the unlawful zone." Speiser v.
Randall, supra, 357 U.S. at 357 U. S. 526 .
The rule thus dampens the vigor and limits the variety of public
debate. It is inconsistent with the First and Fourteenth
Amendments. 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 Page 376 U. S. 280 with "actual malice" -- that is, with knowledge that it was
false or with reckless disregard of whether it was false or not. An
oft-cited statement of a like rule, which has been adopted by a
number of state courts, [ Footnote 20 ] is found in the Kansas case of Coleman
v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). The State
Attorney General, a candidate for reelection and a member of the
commission charged with the management and control of the state
school fund, sued a newspaper publisher for alleged libel in an
article purporting to state facts relating to his official conduct
in connection with a school-fund transaction. The defendant pleaded
privilege and the trial judge, over the plaintiff's objection,
instructed the jury that

															"where an article is published and circulated among voters for
the sole purpose of giving what the defendant Page 376 U. S. 281 believes to be truthful information concerning a candidate for
public office and for the purpose of enabling such voters to cast
their ballot more intelligently, and the whole thing is done in
good faith and without malice, the article is privileged, although
the principal matters contained in the article may be untrue, in
fact, and derogatory to the character of the plaintiff, and in such
a case the burden is on the plaintiff to show actual malice in the
publication of the article."

															In answer to a special question, the jury found that the
plaintiff had not proved actual malice, and a general verdict was
returned for the defendant. On appeal, the Supreme Court of Kansas,
in an opinion by Justice Burch, reasoned as follows (78 Kan., at
724, 98 P. at 286):

															"It is of the utmost consequence that the people should discuss
the character and qualifications of candidates for their suffrages.
The importance to the state and to society of such discussions is
so vast, and the advantages derived are so great, that they more
than counterbalance the inconvenience of private persons whose
conduct may be involved, and occasional injury to the reputations
of individuals must yield to the public welfare, although at times
such injury may be great. The public benefit from publicity is so
great, and the chance of injury to private character so small, that
such discussion must be privileged."

															The court thus sustained the trial court's instruction as a
correct statement of the law, saying:

															"In such a case the occasion gives rise to a privilege,
qualified to this extent: any one claiming to be defamed by the
communication must show actual malice or go remediless. This
privilege extends to a great variety of subjects, and includes
matters of Page 376 U. S. 282 public concern, public men, and candidates for office."

															78 Kan. at 723, 98 P. at 285.

															Such a privilege for criticism of official conduct [ Footnote 21 ] is appropriately
analogous to the protection accorded a public official when he is
sued for libel by a private citizen. In Barr v. Matteo, 360 U. S. 564 , 360 U. S. 575 ,
this Court held the utterance of a federal official to be
absolutely privileged if made "within the outer perimeter" of his
duties. The States accord the same immunity to statements of their
highest officers, although some differentiate their lesser
officials and qualify the privilege they enjoy. [ Footnote 22 ] But all hold that all
officials are protected unless actual malice can be proved. The
reason for the official privilege is said to be that the threat of
damage suits would otherwise "inhibit the fearless, vigorous, and
effective administration of policies of government" and "dampen the
ardor of all but the most resolute, or the most irresponsible, in
the unflinching discharge of their duties." Barr v. Matteo,
supra, 360 U.S. at 360 U. S. 571 .
Analogous considerations support the privilege for the
citizen-critic of government. It is as much his duty to criticize
as it is the official's duty to administer. See Whitney v.
California, 274 U. S. 357 , 274 U. S. 375 (concurring opinion of Mr. Justice Brandeis), quoted supra, p. 376 U. S. 270 .
As Madison said, see supra p. 376 U. S. 275 ,
"the censorial power is in the people over the Government, and not
in the Government over the people." It would give public servants
an unjustified preference over the public they serve, if critics of
official conduct Page 376 U. S. 283 did not have a fair equivalent of the immunity granted to the
officials themselves.

															We conclude that such a privilege is required by the First and
Fourteenth Amendments. III We hold today that the Constitution delimits a State's power to
award damages for libel in actions brought by public officials
against critics of their official conduct. Since this is such an
action, [ Footnote 23 ] the
rule requiring proof of actual malice is applicable. While Alabama
law apparently requires proof of actual malice for an award of
punitive damages, [ Footnote
24 ] where general damages are concerned malice is "presumed."
Such a presumption is inconsistent Page 376 U. S. 284 with the federal rule. "The power to create presumptions is not
a means of escape from constitutional restrictions," Bailey v.
Alabama, 219 U. S. 219 , 219 U. S. 239 ,
"the showing of malice required for the forfeiture of the privilege
is not presumed but is a matter for proof by the plaintiff. . . ." Lawrence v. Fox, 357 Mich. 134, 146, 97 N.W.2d
719 , 725 (1959). [ Footnote
25 ] Since the trial judge did not instruct the jury to
differentiate between general and punitive damages, it may be that
the verdict was wholly an award of one or the other. But it is
impossible to know, in view of the general verdict returned.
Because of this uncertainty, the judgment must be reversed and the
case remanded. Stromberg v. California, 283 U.
S. 359 , 283 U. S.
367 -368; Williams v. North Carolina, 317 U. S. 287 , 317 U. S.
291 -292; see Yates v. United States, 354 U. S. 298 , 354 U. S.
311 -312; Cramer v. United States, 325 U. S.
1 , 325 U. S. 36 , n.
45.

															Since respondent may seek a new trial, we deem that
considerations of effective judicial administration require us to
review the evidence in the present record to determine Page 376 U. S. 285 whether it could constitutionally support a judgment for
respondent. This Court's duty is not limited to the elaboration of
constitutional principles; we must also in proper cases review the
evidence to make certain that those principles have been
constitutionally applied. This is such a case, particularly since
the question is one of alleged trespass across "the line between
speech unconditionally guaranteed and speech which may legitimately
be regulated." Speiser v. Randall, 357 U.
S. 513 , 357 U. S. 525 .
In cases where that line must be drawn, the rule is that we

															"examine for ourselves the statements in issue and the
circumstances under which they were made to see . . . whether they
are of a character which the principles of the First Amendment, as
adopted by the Due Process Clause of the Fourteenth Amendment,
protect." Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 335 ; see also One, Inc., v. Olesen, 355 U.
S. 371 ; Sunshine Book Co. v. Summerfield, 355 U. S. 372 . We
must "make an independent examination of the whole record," Edwards v. South Carolina, 372 U.
S. 229 , 372 U. S. 235 ,
so as to assure ourselves that the judgment does not constitute a
forbidden intrusion on the field of free expression. [ Footnote 26 ]

															Applying these standards, we consider that the proof presented
to show actual malice lacks the convincing Page 376 U. S. 286 clarity which the constitutional standard demands, and hence
that it would not constitutionally sustain the judgment for
respondent under the proper rule of law. The case of the individual
petitioners requires little discussion. Even assuming that they
could constitutionally be found to have authorized the use of their
names on the advertisement, there was no evidence whatever that
they were aware of any erroneous statements or were in any way
reckless in that regard. The judgment against them is thus without
constitutional support.

															As to the Times, we similarly conclude that the facts do not
support a finding of actual malice. The statement by the Times'
Secretary that, apart from the padlocking allegation, he thought
the advertisement was "substantially correct," affords no
constitutional warrant for the Alabama Supreme Court's conclusion
that it was a

															"cavalier ignoring of the falsity of the advertisement [from
which] the jury could not have but been impressed with the bad
faith of The Times, and its maliciousness inferable therefrom."

															The statement does not indicate malice at the time of the
publication; even if the advertisement was not "substantially
correct" -- although respondent's own proofs tend to show that it
was -- that opinion was at least a reasonable one, and there was no
evidence to impeach the witness' good faith in holding it. The
Times' failure to retract upon respondent's demand, although it
later retracted upon the demand of Governor Patterson, is likewise
not adequate evidence of malice for constitutional purposes.
Whether or not a failure to retract may ever constitute such
evidence, there are two reasons why it does not here. First, the
letter written by the Times reflected a reasonable doubt on its
part as to whether the advertisement could reasonably be taken to
refer to respondent at all. Second, it was not a final refusal,
since it asked for an explanation on this point -- a request that
respondent chose to ignore. Nor does the retraction upon the demand
of the Governor supply the Page 376 U. S. 287 necessary proof. It may be doubted that a failure to retract,
which is not itself evidence of malice, can retroactively become
such by virtue of a retraction subsequently made to another party.
But, in any event, that did not happen here, since the explanation
given by the Times' Secretary for the distinction drawn between
respondent and the Governor was a reasonable one, the good faith of
which was not impeached.

															Finally, there is evidence that the Times published the
advertisement without checking its accuracy against the news
stories in the Times' own files. The mere presence of the stories
in the files does not, of course, establish that the Times "knew"
the advertisement was false, since the state of mind required for
actual malice would have to be brought home to the persons in the
Times' organization having responsibility for the publication of
the advertisement. With respect to the failure of those persons to
make the check, the record shows that they relied upon their
knowledge of the good reputation of many of those whose names were
listed as sponsors of the advertisement, and upon the letter from
A. Philip Randolph, known to them as a responsible individual,
certifying that the use of the names was authorized. There was
testimony that the persons handling the advertisement saw nothing
in it that would render it unacceptable under the Times' policy of
rejecting advertisements containing "attacks of a personal
character"; [ Footnote 27 ]
their failure to reject it on this ground was not unreasonable. We
think Page 376 U. S. 288 the evidence against the Times supports, at most, a finding of
negligence in failing to discover the misstatements, and is
constitutionally insufficient to show the recklessness that is
required for a finding of actual malice. Cf. Charles Parker Co.
v. Silver City Crystal Co., 142 Conn. 605, 618, 116 A.2d 440,
446 (1955); Phoenix Newspapers, Inc., v. Choisser, 82
Ariz. 271, 277-278, 312 P.2d 150 ,
154-155 (1957).

															We also think the evidence was constitutionally defective in
another respect: it was incapable of supporting the jury's finding
that the allegedly libelous statements were made "of and
concerning" respondent. Respondent relies on the words of the
advertisement and the testimony of six witnesses to establish a
connection between it and himself. Thus, in his brief to this
Court, he states:

															"The reference to respondent as police commissioner is clear
from the ad. In addition, the jury heard the testimony of a
newspaper editor . . . ; a real estate and insurance man . . . ;
the sales manager of a men's clothing store . . . ; a food
equipment man . . . ; a service station operator . . . , and the
operator of a truck line for whom respondent had formerly worked. .
. . Each of these witnesses stated that he associated the
statements with respondent. . . ."

															(Citations to record omitted.) There was no reference to
respondent in the advertisement, either by name or official
position. A number of the allegedly libelous statements -- the
charges that the dining hall was padlocked and that Dr. King's home
was bombed, his person assaulted, and a perjury prosecution
instituted against him -- did not even concern the police; despite
the ingenuity of the arguments which would attach this significance
to the word "They," it is plain that these statements could not
reasonably be read as accusing respondent of personal involvement
in the acts Page 376 U. S. 289 in question. The statements upon which respondent principally
relies as referring to him are the two allegations that did concern
the police or police functions: that "truckloads of police . . .
ringed the Alabama State College Campus" after the demonstration on
the State Capitol steps, and that Dr. King had been "arrested . . .
seven times." These statements were false only in that the police
had been "deployed near" the campus, but had not actually "ringed"
it, and had not gone there in connection with the State Capitol
demonstration, and in that Dr. King had been arrested only four
times. The ruling that these discrepancies between what was true
and what was asserted were sufficient to injure respondent's
reputation may itself raise constitutional problems, but we need
not consider them here. Although the statements may be taken as
referring to the police, they did not, on their face, make even an
oblique reference to respondent as an individual. Support for the
asserted reference must, therefore, be sought in the testimony of
respondent's witnesses. But none of them suggested any basis for
the belief that respondent himself was attacked in the
advertisement beyond the bare fact that he was in overall charge of
the Police Department and thus bore official responsibility for
police conduct; to the extent that some of the witnesses thought
respondent to have been charged with ordering or approving the
conduct or otherwise being personally involved in it, they based
this notion not on any statements in the advertisement, and not on
any evidence that he had, in fact, been so involved, but solely on
the unsupported assumption that, because of his official position,
he must have been. [ Footnote
28 ] This reliance on the bare Page 376 U. S. 290 fact of respondent's official position [ Footnote 29 ] was made explicit by the Supreme
Court of Alabama. That court, in holding that the trial court "did
not err in overruling the demurrer [of the Times] in the aspect
that the libelous Page 376 U. S. 291 matter was not of and concerning the [plaintiff,]" based its
ruling on the proposition that:

															"We think it common knowledge that the average person knows that
municipal agents, such as police and firemen, and others, are under
the control and direction of the city governing body, and more
particularly under the direction and control of a single
commissioner. In measuring the performance or deficiencies of such
groups, praise or criticism is usually attached to the official in
complete control of the body."

															273 Ala., at 674-675, 144 So. 2d at 39.

															This proposition has disquieting implications for criticism of
governmental conduct. For good reason,

															"no court of last resort in this country has ever held, or even
suggested, that prosecutions for libel on government have any place
in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139
N.E. Page 376 U. S. 292 86, 88 (1923). The present proposition would sidestep this
obstacle by transmuting criticism of government, however impersonal
it may seem on its face, into personal criticism, and hence
potential libel, of the officials of whom the government is
composed. There is no legal alchemy by which a State may thus
create the cause of action that would otherwise be denied for a
publication which, as respondent himself said of the advertisement,
"reflects not only on me but on the other Commissioners and the
community." Raising as it does the possibility that a good faith
critic of government will be penalized for his criticism, the
proposition relied on by the Alabama courts strikes at the very
center of the constitutionally protected area of free expression.
[ Footnote 30 ] We hold that
such a proposition may not constitutionally be utilized to
establish that an otherwise impersonal attack on governmental
operations was a libel of an official responsible for those
operations. Since it was relied on exclusively here, and there was
no other evidence to connect the statements with respondent, the
evidence was constitutionally insufficient to support a finding
that the statements referred to respondent.

															The judgment of the Supreme Court of Alabama is reversed, and
the case is remanded to that court for further proceedings not
inconsistent with this opinion. Reversed and remanded. Page 376 U. S. 293 * Together with No. 40, Abernathy et al. v. Sullivan, also on certiorari to the same court, argued January 7, 1964.

															[ Footnote 1 ]

															A copy of the advertisement is printed in the Appendix
[omitted].

															[ Footnote 2 ]

															Respondent did not consider the charge of expelling the students
to be applicable to him, since "that responsibility rests with the
State Department of Education."

															[ Footnote 3 ]

															Approximately 394 copies of the edition of the Times containing
the advertisement were circulated in Alabama. Of these, about 35
copies were distributed in Montgomery County. The total circulation
of the Times for that day was approximately 650,000 copies.

															[ Footnote 4 ]

															Since we sustain the contentions of all the petitioners under
the First Amendment's guarantees of freedom of speech and of the
press as applied to the States by the Fourteenth Amendment, we do
not decide the questions presented by the other claims of violation
of the Fourteenth Amendment. The individual petitioners contend
that the judgment against them offends the Due Process Clause
because there was no evidence to show that they had published or
authorized the publication of the alleged libel, and that the Due
Process and Equal Protection Clauses were violated by racial
segregation and racial bias in the courtroom. The Times contends
that the assumption of jurisdiction over its corporate person by
the Alabama courts overreaches the territorial limits of the Due
Process Clause. The latter claim is foreclosed from our review by
the ruling of the Alabama courts that the Times entered a general
appearance in the action, and thus waived its jurisdictional
objection; we cannot say that this ruling lacks "fair or
substantial support" in prior Alabama decisions. See Thompson
v. Wilson, 224 Ala. 299, 140 So. 439 (1932); compare NAACP
v. Alabama, 357 U. S. 449 , 357 U. S.
454 -458.

															[ Footnote 5 ] See American Law Institute, Restatement of Torts, §
593, Comment b (1938).

															[ Footnote 6 ] Konigsberg v. State Bar of California, 366 U. S.
36 , 366 U. S. 49 ,
and n. 10; Times Film Corp. v. City of Chicago, 365 U. S. 43 , 365 U. S. 48 ; Roth v. United States, 354 U. S. 476 , 354 U. S.
486 -487; Beauharnais v. Illinois, 343 U.
S. 250 , 343 U. S. 266 ; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S.
348 -349; Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 572 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S.
715 .

															[ Footnote 7 ] Herndon v. Lowry, 301 U. S. 242 .

															[ Footnote 8 ] Bridges v. California, 314 U.
S. 252 ; Pennekamp v. Florida, 328 U.
S. 331 .

															[ Footnote 9 ] De Jonge v. Oregon, 299 U. S. 353 .

															[ Footnote 10 ] Edwards v. South Carolina, 372 U.
S. 229 .

															[ Footnote 11 ] Roth v. United States, 354 U.
S. 476 .

															[ Footnote 12 ] NAACP v. Button, 371 U. S. 415 .

															[ Footnote 13 ] See also Mill, On Liberty (Oxford: Blackwell, 1947), at
47:

															". . . [T]o argue sophistically, to suppress facts or arguments,
to misstate the elements of the case, or misrepresent the opposite
opinion . . . , all this, even to the most aggravated degree, is so
continually done in perfect good faith by persons who are not
considered, and in many other respects may not deserve to be
considered, ignorant or incompetent that it is rarely possible, on
adequate grounds, conscientiously to stamp the misrepresentation as
morally culpable, and still less could law presume to interfere
with this kind of controversial misconduct."

															[ Footnote 14 ]

															The climate in which public officials operate, especially during
a political campaign, has been described by one commentator in the
following terms:

															"Charges of gross incompetence, disregard of the public
interest, communist sympathies, and the like usually have filled
the air, and hints of bribery, embezzlement, and other criminal
conduct are not infrequent."

															Noel, Defamation of Public Officers and Candidates, 49
Col.L.Rev. 875 (1949).

															For a similar description written 60 years earlier, see Chase, Criticism of Public Officers and Candidates for Office, 23
Am.L.Rev. 346 (1889).

															[ Footnote 15 ]

															The Report on the Virginia Resolutions further stated:

															"[I]t is manifestly impossible to punish the intent to bring
those who administer the government into disrepute or contempt,
without striking at the right of freely discussing public
characters and measures, . . . which, again, is equivalent to a
protection of those who administer the government, if they should
at any time deserve the contempt or hatred of the people, against
being exposed to it by free animadversions on their characters and
conduct. Nor can there be a doubt . . . that a government thus
entrenched in penal statutes against the just and natural effects
of a culpable administration will easily evade the responsibility
which is essential to a faithful discharge of its duty."

															"Let it be recollected, lastly, that the right of electing the
members of the government constitutes more particularly the essence
of a free and responsible government. The value and efficacy of
this right depends on the knowledge of the comparative merits and
demerits of the candidates for public trust, and on the equal
freedom, consequently, of examining and discussing these merits and
demerits of the candidates respectively."

															4 Elliot's Debates, supra, p. 575.

															[ Footnote 16 ]

															The Act expired, by its terms, in 1801.

															[ Footnote 17 ] Cf. Farmers Union v. WDAY, 360 U.
S. 525 , 360 U. S.
535 .

															[ Footnote 18 ]

															The Times states that four other libel suits based on the
advertisement have been filed against it by others who have served
as Montgomery City Commissioners and by the Governor of Alabama;
that another $500,000 verdict has been awarded in the only one of
these cases that has yet gone to trial, and that the damages sought
in the other three total $2,000,000.

															[ Footnote 19 ]

															Even a false statement may be deemed to make a valuable
contribution to public debate, since it brings about "the clearer
perception and livelier impression of truth, produced by its
collision with error." Mill, On Liberty (Oxford: Blackwell, 1947),
at 15; see also Milton, Areopagitia, in Prose Works (Yale,
1959), Vol. II, at 561.

															[ Footnote 20 ] E.g., Ponder v. Cobb, 257 N.C. 281, 299, 126
S.E.2d 67 , 80 (1962); Lawrence v. Fox, 357 Mich. 134,
146, 97 N.W.2d
719 , 725 (1959); Stice v. Beacon Newspaper Corp., 185
Kan. 61, 65-67, 340 P.2d 396 ,
400-401 (1959); Bailey v. Charleston Mail Assn., 126 W.Va.
292, 307, 27 S.E.2d 837, 844 (1943); Salinger v. Cowles, 195 Iowa 873, 889, 191 N.W. 167, 174 (1922); Snively v. Record
Publishing Co., 185 Cal. 565, 571-576, 198 P. 1 (1921); McLean v. Merriman, 42 S.D. 394, 175 N.W. 878 (1920).
Applying the same rule to candidates for public office, see,
e.g., Phoenix Newspapers v. Choisser, 82 Ariz. 271, 276-277, 312 P.2d 150 ,
154 (1957); Friedell v. Blakely Printing Co., 163 Minn.
226, 230, 203 N.W. 974, 975 (1925). And see Chagnon v.
Union-Leader Corp., 103 N.H. 426, 438, 174 A.2d 825, 833
(1961), cert. denied, 369 U.S. 830.

															The consensus of scholarly opinion apparently favors the rule
that is here adopted. E.g., Harper and James, Torts, §
5.26, at 449-450 (1956); Noel, Defamation of Public Officers and
Candidates, 49 Col.L.Rev. 875, 891-895, 897, 903 (1949); Hallen,
Fair Comment, 8 Tex.L.Rev. 41, 61 (1929); Smith, Charges Against
Candidates, 18 Mich.L.Rev. 1, 115 (1919); Chase, Criticism of
Public Officers and Candidates for Office, 23 Am.L.Rev. 346,
367-371 (1889); Cooley, Constitutional Limitations (7th ed., Lane,
1903), at 604, 616-628. But see, e.g., American Law
Institute, Restatement of Torts, § 598, Comment a (1938)
(reversing the position taken in Tentative Draft 13, § 1041(2)
(1936)); Veeder, Freedom of Public Discussion, 23 Harv.L.Rev. 413,
419 (1910).

															[ Footnote 21 ]

															The privilege immunizing honest misstatements of fact is often
referred to as a "conditional" privilege, to distinguish it from
the "absolute" privilege recognized in judicial, legislative,
administrative and executive proceedings. See, e.g., Prosser, Torts (2d ed., 1955), § 95.

															[ Footnote 22 ] See 1 Harper and James, Torts, § 5.23, at 429-430
(1956); Prosser, Torts (2d ed., 1955), at 612-613; American Law
Institute, Restatement of Torts (1938), § 591.

															[ Footnote 23 ]

															We have no occasion here to determine how far down into the
lower ranks of government employees the "public official"
designation would extend for purposes of this rule, or otherwise to
specify categories of persons who would or would not be included. Cf. Barr v. Matteo, 360 U. S. 564 , 360 U. S.
573 -575. Nor need we here determine the boundaries of
the "official conduct" concept. It is enough for the present case
that respondent's position as an elected city commissioner clearly
made him a public official, and that the allegations in the
advertisement concerned what was allegedly his official conduct as
Commissioner in charge of the Police Department. As to the
statements alleging the assaulting of Dr. King and the bombing of
his home, it is immaterial that they might not be considered to
involve respondent's official conduct if he himself had been
accused of perpetrating the assault and the bombing. Respondent
does not claim that the statements charged him personally with
these acts; his contention is that the advertisement connects him
with them only in his official capacity as the Commissioner
supervising the police, on the theory that the police might be
equated with the "They" who did the bombing and assaulting. Thus,
if these allegations can be read as referring to respondent at all,
they must be read as describing his performance of his official
duties.

															[ Footnote 24 ] Johnson Publishing Co. v. Davis, 271 Ala. 474, 487, 124 So. 2d
441 , 450 (1960). Thus, the trial judge here instructed the jury
that

															"mere negligence or carelessness is not evidence of actual
malice or malice, in fact, and does not justify an award of
exemplary or punitive damages in an action for libel."

															The court refused, however, to give the following instruction
which had been requested by the Times:

															"I charge you . . . that punitive damages, as the name
indicates, are designed to punish the defendant, the New York Times
Company, a corporation, and the other defendants in this case, . .
. and I further charge you that such punitive damages may be
awarded only in the event that you, the jury, are convinced by a
fair preponderance of the evidence that the defendant . . . was
motivated by personal ill will, that is actual intent to do the
plaintiff harm, or that the defendant . . . was guilty of gross
negligence and recklessness, and not of just ordinary negligence or
carelessness in publishing the matter complained of so as to
indicate a wanton disregard of plaintiff's rights."

															The trial court's error in failing to require any finding of
actual malice for an award of general damages makes it unnecessary
for us to consider the sufficiency under the federal standard of
the instructions regarding actual malice that were given as to
punitive damages.

															[ Footnote 25 ] Accord, Coleman v. MacLennan, supra, 78 Kan., at 741,
98 P. at 292; Gough v. Tribune-Journal Co., 75 Idaho 502,
510, 275 P.2d 663, 668 (1954).

															[ Footnote 26 ]

															The Seventh Amendment does not, as respondent contends, preclude
such an examination by this Court. That Amendment, providing that
"no fact tried by a jury shall be otherwise reexamined in any Court
of the United States than according to the rules of the common
law," is applicable to state cases coming here. Chicago, B.
& Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S.
242 -243; cf. 76 U. S. Murray, 9 Wall. 274. But its ban on reexamination of facts
does not preclude us from determining whether governing rules of
federal law have been properly applied to the facts.

															"[T]his Court will review the finding of facts by a State court
. . . where a conclusion of law as to a Federal right and a finding
of fact are so intermingled as to make it necessary, in order to
pass upon the Federal question, to analyze the facts." Fiske v. Kansas, 274 U. S. 380 , 274 U. S.
385 -386. See also Haynes v. Washington, 373 U. S. 503 , 373 U. S.
515 -516.

															[ Footnote 27 ]

															The Times has set forth in a booklet its "Advertising
Acceptability Standards." Listed among the classes of advertising
that the newspaper does not accept are advertisements that are
"fraudulent or deceptive," that are "ambiguous in wording and . . .
may mislead," and that contain "attacks of a personal character."
In replying to respondent's interrogatories before the trial, the
Secretary of the Times stated that,

															"as the advertisement made no attacks of a personal character
upon any individual and otherwise met the advertising acceptability
standards promulgated,"

															it had been approved for publication.

															[ Footnote 28 ]

															Respondent's own testimony was that,

															"as Commissioner of Public Affairs, it is part of my duty to
supervise the Police Department, and I certainly feel like it [a
statement] is associated with me when it describes police
activities."

															He thought that, "by virtue of being Police Commissioner and
Commissioner of Public Affairs," he was charged with "any activity
on the part of the Police Department." "When it describes police
action, certainly I feel it reflects on me as an individual." He
added that "[i]t is my feeling that it reflects not only on me, but
on the other Commissioners and the community."

															Grover C. Hall testified that, to him, the third paragraph of
the advertisement called to mind "the City government -- the
Commissioners," and that,

															"now that you ask it, I would naturally think a little more
about the police Commissioner, because his responsibility is
exclusively with the constabulary."

															It was "the phrase about starvation" that led to the
association; "the other didn't hit me with any particular
force."

															Arnold D. Blackwell testified that the third paragraph was
associated in his mind with "the Police Commissioner and the police
force. The people on the police force." If he had believed the
statement about the padlocking of the dining hall, he would have
thought

															"that the people on our police force or the heads of our police
force were acting without their jurisdiction, and would not be
competent for the position."

															"I would assume that the Commissioner had ordered the police
force to do that, and therefore it would be his
responsibility."

															Harry W. Kaminsky associated the statement about "truckloads of
police" with respondent, "because he is the Police Commissioner."
He thought that the reference to arrests in the sixth paragraph

															"implicates the Police Department, I think, or the authorities
that would do that -- arrest folks for speeding and loitering and
such as that."

															Asked whether he would associate with respondent a newspaper
report that the police had "beat somebody up or assaulted them on
the streets of Montgomery," he replied:

															"I still say he is the Police Commissioner and those men are
working directly under him, and therefore I would think that he
would have something to do with it."

															In general, he said, "I look at Mr. Sullivan when I see the
Police Department."

															H. M. Price, Sr., testified that he associated the first
sentence of the third paragraph with respondent because:

															"I would just automatically consider that the Police
Commissioner in Montgomery would have to put his approval on those
kind of things as an individual."

															William M. Parker, Jr., testified that he associated the
statements in the two paragraphs with "the Commissioners of the
City of Montgomery," and, since respondent "was the Police
Commissioner," he "thought of him first." He told the examining
counsel: "I think, if you were the Police Commissioner, I would
have thought it was speaking of you."

															Horace W. White, respondent's former employer, testified that
the statement about "truckloads of police" made him think of
respondent "as being the head of the Police Department." Asked
whether he read the statement as charging respondent himself with
ringing the campus or having shotguns and tear gas, he replied:
"Well, I thought of his department being charged with it, yes, sir.
He is the head of the Police Department, as I understand it." He
further said that the reason he would have been unwilling to
reemploy respondent if he had believed the advertisement was "the
fact that he allowed the Police Department to do the things that
the paper say he did."

															[ Footnote 29 ] Compare Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d
67 (1962).

															[ Footnote 30 ]

															Insofar as the proposition means only that the statements about
police conduct libeled respondent by implicitly criticizing his
ability to run the Police Department, recovery is also precluded in
this case by the doctrine of fair comment. See American
Law Institute, Restatement of Torts (1938), § 607. Since the
Fourteenth Amendment requires recognition of the conditional
privilege for honest misstatements of fact, it follows that a
defense of fair comment must be afforded for honest expression of
opinion based upon privileged, as well as true, statements of fact.
Both defenses are, of course, defeasible if the public official
proves actual malice, as was not done here.

															MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
concurring.

															I concur in reversing this half-million-dollar judgment against
the New York Times Company and the four individual defendants. In
reversing, the Court holds that

															"the Constitution delimits a State's power to award damages for
libel in actions brought by public officials against critics of
their official conduct." Ante, p. 376 U. S. 283 .
I base my vote to reverse on the belief that the First and
Fourteenth Amendments not merely "delimit" a State's power to award
damages to "public officials against critics of their official
conduct," but completely prohibit a State from exercising such a
power. The Court goes on to hold that a State can subject such
critics to damages if "actual malice" can be proved against them.
"Malice," even as defined by the Court, is an elusive, abstract
concept, hard to prove and hard to disprove. The requirement that
malice be proved provides, at best, an evanescent protection for
the right critically to discuss public affairs, and certainly does
not measure up to the sturdy safeguard embodied in the First
Amendment. Unlike the Court, therefore, I vote to reverse
exclusively on the ground that the Times and the individual
defendants had an absolute, unconditional constitutional right to
publish in the Times advertisement their criticisms of the
Montgomery agencies and officials. I do not base my vote to reverse
on any failure to prove that these individual defendants signed the
advertisement or that their criticism of the Police Department was
aimed at the plaintiff Sullivan, who was then the Montgomery City
Commissioner having supervision of the city's police; for present
purposes, I assume these things were proved. Nor is my reason for
reversal the size of the half-million-dollar judgment, large as it
is. If Alabama has constitutional power to use its civil libel law
to impose damages on the press for criticizing the way public
officials perform or fail Page 376 U. S. 294 to perform their duties, I know of no provision in the Federal
Constitution which either expressly or impliedly bars the State
from fixing the amount of damages.

															The half-million-dollar verdict does give dramatic proof,
however, that state libel laws threaten the very existence of an
American press virile enough to publish unpopular views on public
affairs and bold enough to criticize the conduct of public
officials. The factual background of this case emphasizes the
imminence and enormity of that threat. One of the acute and highly
emotional issues in this country arises out of efforts of many
people, even including some public officials, to continue
state-commanded segregation of races in the public schools and
other public places despite our several holdings that such a state
practice is forbidden by the Fourteenth Amendment. Montgomery is
one of the localities in which widespread hostility to
desegregation has been manifested. This hostility has sometimes
extended itself to persons who favor desegregation, particularly to
so-called "outside agitators," a term which can be made to fit
papers like the Times, which is published in New York. The scarcity
of testimony to show that Commissioner Sullivan suffered any actual
damages at all suggests that these feelings of hostility had at
least as much to do with rendition of this half-million-dollar
verdict as did an appraisal of damages. Viewed realistically, this
record lends support to an inference that, instead of being
damaged, Commissioner Sullivan's political, social, and financial
prestige has likely been enhanced by the Times' publication.
Moreover, a second half-million-dollar libel verdict against the
Times based on the same advertisement has already been awarded to
another Commissioner. There, a jury again gave the full amount
claimed. There is no reason to believe that there are not more such
huge verdicts lurking just around the corner for the Times or any
other newspaper or broadcaster which Page 376 U. S. 295 might dare to criticize public officials. In fact, briefs before
us show that, in Alabama, there are now pending eleven libel suits
by local and state officials against the Times seeking $5,600,000,
and five such suits against the Columbia Broadcasting System
seeking $1,700,000. Moreover, this technique for harassing and
punishing a free press -- now that it has been shown to be possible
-- is by no means limited to cases with racial overtones; it can be
used in other fields where public feelings may make, local as well
as out-of-state, newspapers easy prey for libel verdict
seekers.

															In my opinion, the Federal Constitution has dealt with this
deadly danger to the press in the only way possible without leaving
the free press open to destruction -- by granting the press an
absolute immunity for criticism of the way public officials do
their public duty. Compare Barr v. Matteo, 360 U.
S. 564 . Stopgap measures like those the Court adopts
are, in my judgment, not enough. This record certainly does not
indicate that any different verdict would have been rendered here
whatever the Court had charged the jury about "malice," "truth,"
"good motives," "justifiable ends," or any other legal formulas
which, in theory, would protect the press. Nor does the record
indicate that any of these legalistic words would have caused the
courts below to set aside or to reduce the half-million-dollar
verdict in any amount.

															I agree with the Court that the Fourteenth Amendment made the
First applicable to the States. [ Footnote 2/1 ] This means to me that, since the adoption
of the Fourteenth Amendment, a State has no more power than the
Federal Government to use a civil libel law or any other law to
impose damages for merely discussing public affairs and criticizing
public officials. The power of the United Page 376 U. S. 296 States to do that is, in my judgment, precisely nil. Such was
the general view held when the First Amendment was adopted, and
ever since. [ Footnote 2/2 ] Congress
never has sought to challenge this viewpoint by passing any civil
libel law. It did pass the Sedition Act in 1798, [ Footnote 2/3 ] which made it a crime -- "seditious
libel" -- to criticize federal officials or the Federal Government.
As the Court's opinion correctly points out, however, ante, pp. 376 U. S.
273 -276, that Act came to an ignominious end and, by
common consent, has generally been treated as having been a wholly
unjustifiable and much to be regretted violation of the First
Amendment. Since the First Amendment is now made applicable to the
States by the Fourteenth, it no more permits the States to impose
damages for libel than it does the Federal Government.

															We would, I think, more faithfully interpret the First Amendment
by holding that, at the very least, it leaves the people and the
press free to criticize officials and discuss public affairs with
impunity. This Nation of ours elects many of its important
officials; so do the States, the municipalities, the counties, and
even many precincts. These officials are responsible to the people
for the way they perform their duties. While our Court has held
that some kinds of speech and writings, such as "obscenity," Roth v. United States, 354 U. S. 476 , and
"fighting words," Chaplinsky v. New Hampshire, 315 U. S. 568 , are
not expression within the protection of the First Amendment,
[ Footnote 2/4 ] freedom to discuss
public affairs and public officials Page 376 U. S. 297 is unquestionably, as the Court today holds, the kind of speech
the First Amendment was primarily designed to keep within the area
of free discussion. To punish the exercise of this right to discuss
public affairs or to penalize it through libel judgments is to
abridge or shut off discussion of the very kind most needed. This
Nation, I suspect, can live in peace without libel suits based on
public discussions of public affairs and public officials. But I
doubt that a country can live in freedom where its people can be
made to suffer physically or financially for criticizing their
government, its actions, or its officials.

															"For a representative democracy ceases to exist the moment that
the public functionaries are by any means absolved from their
responsibility to their constituents, and this happens whenever the
constituent can be restrained in any manner from speaking, writing,
or publishing his opinions upon any public measure, or upon the
conduct of those who may advise or execute it. [ Footnote 2/5 ]"

															An unconditional right to say what one pleases about public
affairs is what I consider to be the minimum guarantee of the First
Amendment. [ Footnote 2/6 ]

															I regret that the Court has stopped short of this holding
indispensable to preserve our free press from destruction.

															[ Footnote 2/1 ] See cases collected in Speiser v. Randall, 357 U. S. 513 , 357 U. S. 530 (concurring opinion).

															[ Footnote 2/2 ] See, e.g., 1 Tucker, Blackstone's Commentaries (1803),
297-299 (editor's appendix). St. George Tucker, a distinguished
Virginia jurist, took part in the Annapolis Convention of 1786, sat
on both state and federal courts, and was widely known for his
writings on judicial and constitutional subjects.

															[ Footnote 2/3 ]

															Act of July 14, 1798, 1 Stat. 596.

															[ Footnote 2/4 ] But see Smith v. California, 361 U.
S. 147 , 361 U. S. 155 (concurring opinion); Roth v. United States, 354 U.
S. 476 , 354 U. S. 508 (dissenting opinion).

															[ Footnote 2/5 ]

															1 Tucker, Blackstone's Commentaries (1803), 297 (editor's
appendix); cf. Brant, Seditious Libel: Myth and Reality,
39 N.Y.U.L.Rev. 1.

															[ Footnote 2/6 ] Cf. Meiklejohn, Free Speech and Its Relation to
Self-Government (1948).

															MR. JUSTICE GOLDBERG, with whom MR. JUSTICE DOUGLAS joins,
concurring in the result.

															The Court today announces a constitutional standard which
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 Page 376 U. S. 298 'actual malice' -- that is, with knowledge that it was false or
with reckless disregard of whether it was false or not." Ante at 376 U. S.
279 -280. The Court thus rules that the Constitution
gives citizens and newspapers a "conditional privilege" immunizing
nonmalicious misstatements of fact regarding the official conduct
of a government officer. The impressive array of history [ Footnote 3/1 ] and precedent marshaled by
the Court, however, confirms my belief that the Constitution
affords greater protection than that provided by the Court's
standard to citizen and press in exercising the right of public
criticism.

															In my view, the First and Fourteenth Amendments to the
Constitution afford to the citizen and to the press an absolute,
unconditional privilege to criticize official conduct despite the
harm which may flow from excesses and abuses. The prized American
right "to speak one's mind," cf. Bridges v California, 314 U. S. 252 , 314 U. S. 270 ,
about public officials and affairs needs "breathing space to
survive," NAACP v. Button, 371 U.
S. 415 , 371 U. S. 433 .
The right should not depend upon a probing by the jury of the
motivation [ Footnote 3/2 ] of the
citizen or press. The theory Page 376 U. S. 299 of our Constitution is that every citizen may speak his mind and
every newspaper express its view on matters of public concern, and
may not be barred from speaking or publishing because those in
control of government think that what is said or written is unwise,
unfair, false, or malicious. In a democratic society, one who
assumes to act for the citizens in an executive, legislative, or
judicial capacity must expect that his official acts will be
commented upon and criticized. Such criticism cannot, in my
opinion, be muzzled or deterred by the courts at the instance of
public officials under the label of libel.

															It has been recognized that "prosecutions for libel on
government have [no] place in the American system of
jurisprudence." City of Chicago v. Tribune Co., 307 Ill.
595, 601, 139 N.E. 86, 88. I fully agree. Government, however, is
not an abstraction; it is made up of individuals -- of governors
responsible to the governed. In a democratic society, where men are
free by ballots to remove those in power, any statement critical of
governmental action is necessarily "of and concerning" the
governors, and any statement critical of the governors' official
conduct is necessarily "of and concerning" the government. If the
rule that libel on government has no place in our Constitution is
to have real meaning, then libel on the official conduct of the
governors likewise can have no place in our Constitution.

															We must recognize that we are writing upon a clean slate.
[ Footnote 3/3 ] As the Court notes,
although there have been Page 376 U. S. 300 "statements of this Court to the effect that the Constitution
does not protect libelous publications . . . , [n]one of the cases
sustained the use of libel laws to impose sanctions upon expression
critical of the official conduct of public officials." Ante at 376 U. S. 268 .
We should be particularly careful, therefore, adequately to protect
the liberties which are embodied in the First and Fourteenth
Amendments. It may be urged that deliberately and maliciously false
statements have no conceivable value as free speech. That argument,
however, is not responsive to the real issue presented by this
case, which is whether that freedom of speech which all agree is
constitutionally protected can be effectively safeguarded by a rule
allowing the imposition of liability upon a jury's evaluation of
the speaker's state of mind. If individual citizens may be held
liable in damages for strong words, which a jury finds false and
maliciously motivated, there can be little doubt that public debate
and advocacy will be constrained. And if newspapers, publishing
advertisements dealing with public issues, thereby risk liability,
there can also be little doubt that the ability of minority groups
to secure publication of their views on public affairs and to seek
support for their causes will be greatly diminished. Cf.
Farmers Educational & Coop. Union v. WDAY, Inc., 360 U. S. 525 , 360 U. S. 530 .
The opinion of the Court conclusively demonstrates the chilling
effect of the Alabama libel laws on First Amendment freedoms Page 376 U. S. 301 in the area of race relations. The American Colonists were not
willing, nor should we be, to take the risk that "[m]en who injure
and oppress the people under their administration [and] provoke
them to cry out and complain" will also be empowered to "make that
very complaint the foundation for new oppressions and
prosecutions." The Trial of John Peter Zenger, 17 Howell's St. Tr.
675, 721-722 (1735) (argument of counsel to the jury). To impose
liability for critical, albeit erroneous or even malicious,
comments on official conduct would effectively resurrect "the
obsolete doctrine that the governed must not criticize their
governors." Cf. Sweeney v. Patterson, 76 U.S.App.D.C. 23,
24, 128 F.2d 457, 458.

															Our national experience teaches that repressions breed hate, and
"that hate menaces stable government." Whitney v.
California, 274 U. S. 357 , 274 U. S. 375 (Brandeis, J., concurring). We should be ever mindful of the wise
counsel of Chief Justice Hughes:

															"[I]mperative is the need to preserve inviolate the
constitutional rights of free speech, free press and free assembly
in order to maintain the opportunity for free political discussion,
to the end that government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very
foundation of constitutional government." De Jonge v. Oregon, 299 U. S. 353 , 299 U. S.
365 .

															This is not to say that the Constitution protects defamatory
statements directed against the private conduct of a public
official or private citizen. Freedom of press and of speech insures
that government will respond to the will of the people, and that
changes may be obtained by peaceful means. Purely private
defamation has little to do with the political ends of a
self-governing society. The imposition of liability for private
defamation does not Page 376 U. S. 302 abridge the freedom of public speech or any other freedom
protected by the First Amendment. [ Footnote 3/4 ] This, of course, cannot be said

															"where public officials are concerned, or where public matters
are involved. . . . [O]ne main function of the First Amendment is
to ensure ample opportunity for the people to determine and resolve
public issues. Where public matters are involved, the doubts should
be resolved in favor of freedom of expression, rather than against
it."

															Douglas, The Right of the People (1958), p. 41.

															In many jurisdictions, legislators, judges and executive
officers are clothed with absolute immunity against liability for
defamatory words uttered in the discharge of their public duties. See, e.g., Barr v. Matteo, 360 U.
S. 564 ; City of Chicago v. Tribune Co., 307
Ill., at 610, 139 N.E. at 91. Judge Learned Hand ably summarized
the policies underlying the rule:

															"It does indeed go without saying that an official who is, in
fact, guilty of using his powers to vent his spleen upon others, or
for any other personal motive not connected with the public good,
should not escape liability for the injuries he may so cause; and,
if it were possible in practice to confine such complaints to the
guilty, it would be monstrous to deny recovery. The justification
for doing so is that it is impossible to know whether the claim is
well founded until the Page 376 U. S. 303 case has been tried, and that to submit all officials, the
innocent as well as the guilty, to the burden of a trial and to the
inevitable danger of its outcome would dampen the ardor of all but
the most resolute, or the most irresponsible, in the unflinching
discharge of their duties. Again and again, the public interest
calls for action which may turn out to be founded on a mistake, in
the face of which an official may later find himself hard put to it
to satisfy a jury of his good faith. There must indeed be means of
punishing public officers who have been truant to their duties; but
that is quite another matter from exposing such as have been
honestly mistaken to suit by anyone who has suffered from their
errors. As is so often the case, the answer must be found in a
balance between the evils inevitable in either alternative. In this
instance, it has been thought in the end better to leave
unredressed the wrongs done by dishonest officers than to subject
those who try to do their duty to the constant dread of
retaliation. . . ."

															"The decisions have, indeed, always imposed as a limitation upon
the immunity that the official's act must have been within the
scope of his powers, and it can be argued that official powers,
since they exist only for the public good, never cover occasions
where the public good is not their aim, and hence that to exercise
a power dishonestly is necessarily to overstep its bounds. A
moment's reflection shows, however, that that cannot be the meaning
of the limitation without defeating the whole doctrine. What is
meant by saying that the officer must be acting within his power
cannot be more than that the occasion must be such as would have
justified the act, if he had been using his power for any of the
purposes on whose account it was vested in him. . . ." Gregoire v. Biddle, 177 F.2d 579, 581. Page 376 U. S. 304 If the government official should be immune from libel actions,
so that his ardor to serve the public will not be dampened and
"fearless, vigorous, and effective administration of policies of
government" not be inhibited, Barr v. Matteo, supra, at 360 U. S. 571 ,
then the citizen and the press should likewise be immune from libel
actions for their criticism of official conduct. Their ardor as
citizens will thus not be dampened, and they will be free "to
applaud or to criticize the way public employees do their jobs,
from the least to the most important." [ Footnote 3/5 ] If liability can attach to political
criticism because it damages the reputation of a public official as
a public official, then no critical citizen can safely utter
anything but faint praise about the government or its officials.
The vigorous criticism by press and citizen of the conduct of the
government of the day by the officials of the day will soon yield
to silence if officials in control of government agencies, instead
of answering criticisms, can resort to friendly juries to forestall
criticism of their official conduct. [ Footnote 3/6 ]

															The conclusion that the Constitution affords the citizen and the
press an absolute privilege for criticism of official conduct does
not leave the public official without defenses against
unsubstantiated opinions or deliberate misstatements.

															"Under our system of government, counterargument and education
are the weapons available to expose these matters, not abridgment .
. . of free speech. . . ." Wood v. Georgia, 370 U. S. 375 , 370 U. S. 389 .
The public Page 376 U. S. 305 official certainly has equal, if not greater, access than most
private citizens to media of communication. In any event, despite
the possibility that some excesses and abuses may go unremedied, we
must recognize that

															"the people of this nation have ordained, in the light of
history, that, in spite of the probability of excesses and abuses,
[certain] liberties are, in the long view, essential to enlightened
opinion and right conduct on the part of the citizens of a
democracy." Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S. 310 .
As Mr. Justice Brandeis correctly observed, "sunlight is the most
powerful of all disinfectants." [ Footnote 3/7 ]

															For these reasons, I strongly believe that the Constitution
accords citizens and press an unconditional freedom to criticize
official conduct. It necessarily follows that, in a case such as
this, where all agree that the allegedly defamatory statements
related to official conduct, the judgments for libel cannot
constitutionally be sustained.

															[ Footnote 3/1 ]

															I fully agree with the Court that the attack upon the validity
of the Sedition Act of 1798, 1 Stat. 596, "has carried the day in
the court of history," ante at 376 U. S. 276 ,
and that the Act would today be declared unconstitutional. It
should be pointed out, however, that the Sedition Act proscribed
writings which were "false, scandalous and malicious. "
(Emphasis added.) For prosecutions under the Sedition Act charging
malice, see, e.g., Trial of Matthew Lyon (1798), in
Wharton, State Trials of the United States (1849), p. 333; Trial of
Thomas Cooper (1800), in id. at 659; Trial of Anthony
Haswell (1800), in id. at 684; Trial of James Thompson
Callender (1800), in id. at 688.

															[ Footnote 3/2 ]

															The requirement of proving actual malice or reckless disregard
may, in the mind of the jury, add little to the requirement of
proving falsity, a requirement which the Court recognizes not to be
an adequate safeguard. The thought suggested by Mr. Justice Jackson
in United States v. Ballard, 322 U. S.
78 , 322 U. S. 92 -93,
is relevant here:

															"[A]s a matter of either practice or philosophy, I do not see
how we can separate an issue as to what is believed from
considerations as to what is believable. The most convincing proof
that one believes his statements is to show that they have been
true in his experience. Likewise, that one knowingly falsified is
best proved by showing that what he said happened never did
happen." See note 376
U.S. 254 fn3/4|>4, infra. [ Footnote 3/3 ]

															It was not until Gitlow v. New York, 268 U.
S. 652 , decided in 1925, that it was intimated that the
freedom of speech guaranteed by the First Amendment was applicable
to the States by reason of the Fourteenth Amendment. Other
intimations followed. See Whitney v. California, 274 U. S. 357 ; Fiske v. Kansas, 274 U. S. 380 . In
1931, Chief Justice Hughes, speaking for the Court in Stromberg
v. California, 283 U. S. 359 , 283 U. S. 368 ,
declared:

															"It has been determined that the conception of liberty under the
due process clause of the Fourteenth Amendment embraces the right
of free speech."

															Thus, we deal with a constitutional principle enunciated less
than four decades ago, and consider for the first time the
application of that principle to issues arising in libel cases
brought by state officials.

															[ Footnote 3/4 ]

															In most cases, as in the case at bar, there will be little
difficulty in distinguishing defamatory speech relating to private
conduct from that relating to official conduct. I recognize, of
course, that there will be a gray area. The difficulties of
applying a public-private standard are, however, certainly of a
different genre from those attending the differentiation between a
malicious and nonmalicious state of mind. If the constitutional
standard is to be shaped by a concept of malice, the speaker takes
the risk not only that the jury will inaccurately determine his
state of mind, but also that the jury will fail properly to apply
the constitutional standard set by the elusive concept of malice. See 376
U.S. 254 fn3/2|>note 2, supra. [ Footnote 3/5 ]

															MR. JUSTICE BLACK, concurring in Barr v. Matteo, 360 U. S. 564 , 360 U. S. 577 ,
observed that:

															"The effective functioning of a free government like ours
depends largely on the force of an informed public opinion. This
calls for the widest possible understanding of the quality of
government service rendered by all elective or appointed public
officials or employees. Such an informed understanding depends, of
course, on the freedom people have to applaud or to criticize the
way public employees do their jobs, from the least to the most
important."

															[ Footnote 3/6 ] See notes 2 4 supra. [ Footnote 3/7 ] See Freund, The Supreme Court of the United States
(1949), p. 61.