U.S. Supreme Court Curtis Pub. Co. v. Butts, 388
U.S. 130 (1967) Curtis Publishing Co. v.
Butts No. 37 Argued February 23,
1967 Decided June 12, 1967 388
U.S. 130 ast|>* 388
U.S. 130 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH
CIRCUIT Syllabus In No. 37, respondent brought a diversity libel action in
federal court seeking compensatory and punitive damages for an
article which was published in petitioner's magazine accusing
respondent of conspiring to "fix" a football game between the
University of Alabama and the University of Georgia, where he was
privately employed as the athletic director. The article was based
upon an affidavit concerning a telephone conversation between
respondent and the Alabama coach which the affiant, Burnett, had
accidentally overheard. Respondent challenged the truth of the
article and claimed a serious departure by the magazine from good
investigative standards of the accuracy of its charges amounting to
reckless and wanton conduct. He submitted evidence at the trial
showing, inter alia, that petitioner's magazine, which had
instituted a policy of "sophisticated muckraking," knew that
Burnett was on criminal probation but had published the story
without any independent support for his affidavit; that it did not,
before publication, view his notes (the information in which, if
not valueless, would be readily available to any coach); that the
magazine did not interview a person with Burnett when the phone
call was overheard, view the game films, or check for any
adjustments in Alabama's plans after the information was divulged,
and that the magazine assigned the story to a writer not a football
expert and made no effort to have such an expert check the story.
The jury was instructed on the issue of truth as a defense and was
also instructed that it could award punitive damages and could
assess the reliability and the nature of the sources of the
magazine's information and its care in checking the assertions,
considerations relevant tn determining whether the magazine had
proceeded with "wanton and reckless indifference." The jury
returned a verdict of general and punitive damages which was
reduced by remittitur. The trial court rejected the defense's new
trial motion based on New York Times Co. v. Sullivan, 376 U. S. 254 (which was decided after the filing of the complaint in and trial
of this case), holding that decision Page 388 U. S. 131 inapplicable to one like petitioner not a public official. It
also held the evidence amply supported the conclusion that the
magazine had acted in reckless disregard of whether the article was
false or not. The Court of Appeals affirmed on the merits. It did
not reach the constitutional claim based on New York
Times, holding that petitioner had waived the right to make
that challenge, since some of its lawyers had been involved in the
latter case, yet the defense was based solely on the issue of
truth. In No. 150, petitioner, a news association, published a
dispatch about a massive riot on the University of Mississippi
campus attending federal efforts to enforce a court decree ordering
a Negro's enrollment. The dispatch stated that respondent, a
politically prominent figure whose statements on federal
intervention had been widely publicized, had taken command of the
violent crowd and led a charge against federal marshals trying to
enforce the court's decree, had encouraged violence and given
technical advice to the rioters. Respondent brought a libel action
in the Texas state courts for compensatory and punitive damages.
Petitioner's defense was based on truth and constitutional rights.
The evidence showed that the dispatch had been made on the scene
and almost immediately reported to the petitioner by a competent
correspondent. There was no significant showing of improper
preparation of the dispatch, or any prejudice by petitioner or its
correspondent. The jury was instructed that compensatory damages
could be awarded if the dispatch was not substantially true and
that punitive damages could be added if the article was actuated by
ill will or entire want of care. The jury returned a verdict for
both compensatory and punitive damages. The trial court refused to
enter an award for the latter. The court held New York
Times inapplicable, but that, if applicable, it would require
a verdict for the petitioner, since there was no evidence of
malice. Both sides appealed. The Texas Court of Civil Appeals
affirmed, and the Texas Supreme Court denied review. Held: The judgment in No. 37 is affirmed. The judgment
in No. 150 is reversed, and the case remanded. Pp. 133-174.

															No. 37, 351 F.2d 702, affirmed; No. 150, 393 S.W.2d 671,
reversed and remanded.

															MR. JUSTICE HARLAN, joined by MR. JUSTICE CLARK, MR. JUSTICE
STEWART, and MR. .JUSTICE FORTAS, concluded that:

															1. Petitioner's failure in No. 37 to raise the constitutional
defense before trial constituted no waiver of its right to do so
after New York Times was decided. Pp. 388 U. S.
142 -145. Page 388 U. S. 132 2. The New York Times rule prohibiting a public
official from recovering damages for defamatory falsehood relating
to his official conduct absent actual malice as therein defined,
though necessary there to protect against prosecutions close to
seditious libel for criticizing official conduct, should not be
inexorably applied to defamation actions by "public figures" like
those here, where different considerations are present. Pp. 388 U. S. 148 , 388 U. S.
152 -154.

															3. A "public figure" who is not a public official may recover
damages for defamatory falsehood substantially endangering his
reputation on a showing of highly unreasonable conduct constituting
an extreme departure from the standards of investigation and
reporting ordinarily adhered to by responsible publishers. P. 388 U. S.
155 .

															4. In view of the court's instructions in No. 37, the jury must
have decided that the magazine's investigation was grossly
inadequate, and the evidence amply supported a finding of the
highly unreasonable conduct referred to above. Pp. 388 U. S.
156 -158.

															5. In No. 150, where the courts found the evidence insufficient
to support more than a finding of even ordinary negligence,
respondent is not entitled to damages. Pp. 388 U. S.
158 -159.

															6. Misconduct sufficient to justify compensatory damages also
justifies punitive damages; the same constitutional standards apply
to both. Pp. 388 U. S.
159 -161.

															THE CHIEF JUSTICE concluded that:

															1. The New York Times standard applies to defamation
actions by "public figures" as well as those by "public officials."
Pp. 388 U. S.
162 -165.

															2. The judgment in No. 150, being in clear conflict with New
York Times, must be reversed. P. 388 U. S.
165 .

															3. Retrial of No. 37 is not necessary, since the jury's verdict
therein, in view of instructions which invoked the elements later
held necessary in New York Times, most probably was based
on the requirement of reckless disregard for the truth enunciated
in that case. Pp. 388 U. S.
165 -167.

															4. The overlapping of counsel in No. 37 with counsel in New
York Times and in a libel action against petitioner by the
Alabama coach, in which a First Amendment defense was also made,
compels the conclusion that the failure to defend on those grounds
here was deliberate. Pp. 388 U. S.
167 -168.

															5. The evidence shows that petitioner in No. 37 acted in
reckless disregard for the truth. Pp. 388 U. S.
168 -170. Page 388 U. S. 133 MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded
that, in order to dispose of No. 150, he concurs in the grounds
stated by THE CHIEF JUSTICE which are summarized in paragraphs 1
and 2, supra, of THE CHIEF JUSTICES conclusions, but does
not recede from his previously expressed views about the much wider
press and speech freedoms of the First and Fourteenth Amendments.
P. 388 U. S.
170 .

															MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, concluded that
the grounds stated by THE CHIEF JUSTICE which are summarized in
paragraphs 1 and 2, supra, of THE CHIEF JUSTICE's
conclusions in No. 150 govern that case. P. 388 U. S.
172 .

															MR. JUSTICE HARLAN announced the judgments of the Court and
delivered an opinion in which MR. JUSTICE CLARK, MR. JUSTICE
STEWART, and MR. JUSTICE FORTAS join.*

															In New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S.
279 -280, this Court held that

															"[t]he constitutional guarantees Page 388 U. S. 134 [of freedom of speech and press] require . . . a federal rule
that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he
proves that the statement was made with 'actual malice' -- that is,
with knowledge that it was false or with reckless disregard of
whether it was false or not."

															We brought these two cases here, 385 U.S. 811, 385 U. S. 385 U.S. 812, to consider the impact of that decision on libel actions
instituted by persons who are not public officials, but who are
"public figures" and involved in issues in which the public has a
justified and important interest. The sweep of the New York
Times rule in libel actions brought under state law was a
question expressly reserved in that case, 376 U.S. at 376 U. S. 283 ,
n. 23, and while that question has been involved in later cases, Garrison v. Louisiana, 379 U. S. 64 ; Rosenblatt v. Baer, 383 U. S. 75 ; Time, Inc. v. Hill, 385 U. S. 374 , it
has not been fully settled.

															The matter has, however, been passed on by a considerable number
of state and lower federal courts, and has produced a sharp
division of opinion as to whether the New York Times rule
should apply only in actions brought by public officials or whether
it has a longer reach. Compare, e.g., Pearson v. Fairbanks
Publishing Co., 413 P.2d 711 (Alaska), with Clark v. Pearson, 248 F.
Supp. 188 . [ Footnote 1 ] Page 388 U. S. 135 The resolution of the uncertainty in this area of libel actions
requires, at bottom, some further exploration and clarification of
the relationship between libel law and the freedom of speech and
press, lest the New York Times rule become a talisman
which gives the press constitutionally adequate protection only in
a limited field, or, what would be equally unfortunate, one which
goes far to immunize the press from having to make just reparation
for the infliction of needless injury upon honor and reputation
through false publication. These two libel actions, although they
arise out of quite different sets of circumstances, provide that
opportunity. We think they are best treated together in one
opinion. I No. 37, Curtis Publishing Co. v. Butts, stems from an
article published in petitioner's Saturday Evening Post which
accused respondent of conspiring to "fix" a football game between
the University of Georgia and the University of Alabama, played in
1962. At the time of the article, Butts was the athletic director
of the University of Georgia, and had overall responsibility for
the administration of its athletic program. Georgia is a state
university, but Butts was employed by the Georgia Athletic
Association, a private corporation, rather than by the State
itself. [ Footnote 2 ] Butts had
previously served as head Page 388 U. S. 136 football coach of the University, and was a well known and
respected figure in coaching ranks. He had maintained an interest
in coaching, and was negotiating for a position with a professional
team at the time of publication.

															The article was entitled "The Story of a College Football Fix,"
and prefaced by a note from the editors stating:

															"Not since the Chicago White Sox threw the 1919 World Series has
there been a sports story as shocking as this one. . . . Before the
University of Georgia played the University of Alabama . . . ,
Wally Butts . . . gave [to its coach] . . . Georgia's plays,
defensive patterns, all the significant secrets Georgia's football
team possessed."

															The text revealed that one George Burnett, an Atlanta insurance
salesman, had accidentally overheard, because of electronic error,
a telephone conversation between Butts and the head coach of the
University of Alabama, Paul Bryant, which took place approximately
one week prior to the game. Burnett was said to have listened
while

															"Butts outlined Georgia's offensive plays . . . and told . . .
how Georgia planned to defend. . . . Butts mentioned both players
and plays by name."

															The readers were told that Burnett had made notes of the
conversation, and specific examples of the divulged secrets were
set out.

															The article went on to discuss the game and the players'
reaction to the game, concluding that "[t]he Georgia players, their
moves analyzed and forecast like those of rats in a maze, took a
frightful physical beating," and said that the players, and other
sideline observers, were aware that Alabama was privy to Georgia's
secrets. It set out the series of events commencing with Burnett's
later presentation of his notes to the Georgia head coach, Page 388 U. S. 137 Johnny Griffith, and culminating in Butts' resignation from the
University's athletic affairs, for health and business reasons. The
article's conclusion made clear its expected impact:

															"The chances are that Wally Butts will never help any football
team again. . . . The investigation by university and Southeastern
Conference officials is continuing; motion pictures of other games
are being scrutinized; where it will end no one so far can say. But
careers will be ruined, that is sure."

															Butts brought this diversity libel action in the federal courts
in Georgia seeking $5,000,000 compensatory and $5,000,000 punitive
damages. The complaint was filed, and the trial completed, before
this Court handed down its decision in New York Times, and
the only defense raised by petitioner Curtis was one of substantial
truth. No constitutional defenses were interposed, although Curtis'
counsel were aware of the progress of the New York Times case, and although general constitutional defenses had been raised
by Curtis in a libel action instituted by the Alabama coach who was
a state employee.

															Evidence at trial was directed both to the truth of the article
and to its preparation. The latter point was put in issue by the
claim for punitive damages, which required a finding of "malice"
under Georgia law. The evidence showed that Burnett had indeed
overheard a conversation between Butts and the Alabama coach, but
the content of that conversation was hotly disputed. It was Butts'
contention that the conversation had been general football talk,
and that nothing Burnett had overheard would have been of any
particular value to an opposing coach. Expert witnesses supported
Butts by analyzing Burnett's notes and the films of the game
itself. The Saturday Evening Post's version of the game and of the
players' remarks about the game was severely contradicted. Page 388 U. S. 138 The evidence on the preparation of the article, on which we
shall focus in more detail later, cast serious doubt on the
adequacy of the investigation underlying the article. It was Butts'
contention that the magazine had departed greatly from the
standards of good investigation and reporting, and that this was
especially reprehensible, amounting to reckless and wanton conduct,
in light of the devastating nature of the article's assertions.

															The jury was instructed that, in order for the defense of truth
to be sustained, it was "necessary that the truth be substantially
portrayed in those parts of the article which libel the plaintiff."
The "sting of the libel" was said to be

															"the charge that the plaintiff rigged and fixed the 1962
Georgia-Alabama game by giving Coach Bryant [of Alabama]
information which was calculated to or could have affected the
outcome of the game."

															The jury was also instructed that it could award punitive
damages "to deter the wrongdoer from repeating the trespass" in an
amount within its sole discretion if it found that actual malice
had been proved. [ Footnote
3 ]

															The jury returned a verdict for $60,000 in general damages and
for $3,000000 in punitive damages. The trial court reduced the
total to $460,000 by remittitur. Soon thereafter, we handed down
our decision in New York Times, and Curtis immediately
brought it to the attention of the trial court by a motion for new
trial. The trial judge rejected Curtis' motion on two grounds.
He Page 388 U. S. 139 first held that New York Times was inapplicable because
Butts was not a public official. He also held that

															"there was ample evidence from which a jury could have concluded
that there was reckless disregard by defendant of whether the
article was false or not."

															Curtis appealed to the Court of Appeals for the Fifth Circuit,
which affirmed the judgment of the District Court by a two-to-one
vote. The majority there did not reach the merits of petitioner's
constitutional claim, holding that Curtis had "clearly waived any
right it may have had to challenge the verdict and judgment on any
of the constitutional grounds asserted in Times, " 351 F.2d
702, 713, on the basis of Michel v. Louisiana, 350 U. S. 91 . It
found Curtis chargeable with knowledge of the constitutional
limitations on libel law at the time it filed its pleadings below
because of its "interlocking battery of able and distinguished
attorneys" some of whom were involved in the New York
Times litigation. This holding rendered the compensatory
damage decision purely one of state law, and no error was found in
its application. Turning to the punitive damage award, the majority
upheld it as stemming from the "enlightened conscience" of the jury
as adjusted by the lawful action of the trial judge. It was in
"complete accord" with the trial court's determination that the
evidence justified the finding "that what the Post did was done
with reckless disregard of whether the article was false or not."
351 F.2d at 719.

															Judge Rives dissented, arguing that the record did not support a
finding of knowing waiver of constitutional defenses. He concluded
that the New York Times rule was applicable because Butts
was involved in activities of great interest to the public. He
would have reversed because

															"the jury might well have understood the district court's charge
to allow recovery on a showing of Page 388 U. S. 140 intent to inflict harm or even the culpably negligent infliction
of harm, rather than the intent to inflict harm through falsehood.
. . ."

															351 F.2d at 723.

															Rehearing was denied, 351 F.2d at 733, and we granted
certiorari, as indicated above. For reasons given below, we would
affirm. II No. 150, Associated Press v. Walker, arose out of the
distribution of a news dispatch giving an eyewitness account of
events on the campus of the University of Mississippi on the night
of September 30, 1962, when a massive riot erupted because of
federal efforts to enforce a court decree ordering the enrollment
of a Negro, James Meredith, as a student in the University. The
dispatch stated that respondent Walker, who was present on the
campus, had taken command of the violent crowd and had personally
led a charge against federal marshals sent there to effectuate the
court's decree and to assist in preserving order. It also described
Walker as encouraging rioters to use violence and giving them
technical advice on combating the effects of tear gas.

															Walker was a private citizen at the time of the riot and
publication. He had pursued a long and honorable career in the
United States Army before resigning to engage in political
activity, and had, in fact, been in command of the federal troops
during the school segregation confrontation at Little Rock,
Arkansas, in 1957. He was acutely interested in the issue of
physical federal intervention, and had made a number of strong
statements against such action which had received wide publicity.
Walker had his own following, the "Friends of Walker," and could
fairly be deemed a man of some political prominence.

															Walker initiated this libel action in the state courts of Texas,
seeking a total of $2,000,000 in compensatory and punitive damages.
Associated Press raised both the Page 388 U. S. 141 defense of truth and constitutional defenses. At trial, both
sides attempted to reconstruct the stormy events on the campus of
the University of Mississippi. Walker admitted his presence on the
campus, and conceded that he had spoken to a group of students. He
claimed, however, that he had counseled restraint and peaceful
protest, and exercised no control whatever over the crowd, which
had rejected his plea. He denied categorically taking part in any
charge against the federal marshals.

															There was little evidence relating to the preparation of the
news dispatch. It was clear, however, that the author of this
dispatch, Van Savell, was actually present during the events
described, and had reported them almost immediately to the
Associated Press office in Atlanta. A discrepancy was shown between
an oral account given the office and a later written dispatch, but
it related solely to whether Walker had spoken to the group before
or after approaching the marshals. No other showing of improper
preparation was attempted, nor was there any evidence of personal
prejudice or incompetency on the part of Savell or the Associated
Press.

															The jury was instructed that an award of compensatory damages
could be made if the dispatch was not substantially true, [ Footnote 4 ] and that punitive damages
could be added if the article was actuated by

															"ill will, bad or evil motive, or that entire want of care which
would raise the belief that the act or omission complained of was
the result of a conscious indifference to the right or welfare of
the person to be affected by it."

															A verdict of $500,000 compensatory damages and $300,000 punitive
damages was returned. The trial judge, however, found that there
was "no evidence to support the jury's answers that there was
actual malice" Page 388 U. S. 142 and refused to enter the punitive award. He concluded that the
failure further to investigate the minor discrepancy between the
oral and written versions of the incident could not

															"be construed as that entire want of care which would
amount to a conscious indifference to the rights of
plaintiff. Negligence, it may have been; malice, it was not.
Moreover, the mere fact that AP permitted a young reporter to cover
the story of the riot is not evidence of malice."

															(Emphasis in original.) The trial judge also noted that this
lack of "malice" would require a verdict for the Associated Press
if New York Times were applicable. But he rejected its
applicability, since there were "no compelling reasons of public
policy requiring additional defenses to suits for libel. Truth
alone should be an adequate defense."

															Both sides appealed, and the Texas Court of Civil Appeals
affirmed both the award of compensatory damages and the striking of
punitive damages. It stated without elaboration that New York
Times was inapplicable. As to the punitive damage award, the
plea for reinstatement was refused because,

															"[i]n view of all the surrounding circumstances, the rapid and
confused occurrence of events on the occasion in question, and in
the light of all the evidence, we hold that appellee failed to
prove malice . ."

															393 S.W.2d 671, 683.

															The Supreme Court of Texas denied a writ of error, and we
granted certiorari, as already indicated. For reasons given below,
we would reverse. III Before we reach the constitutional arguments put forward by the
respective petitioners, we must first determine whether Curtis has
waived its right to assert such arguments by failing to assert them
before trial. As our dispositions of Rosenblatt v. Baer, 383 U. S. 75 , Page 388 U. S. 143 and other cases involving constitutional questions indicate,
[ Footnote 5 ] the mere failure
to interpose such a defense prior to the announcement of a decision
which might support it cannot prevent a litigant from later
invoking such a ground. Of course, it is equally clear that even
constitutional objections may be waived by a failure to raise them
at a proper time, Michel v. Louisiana, supra, at 350 U. S. 99 ,
[ Footnote 6 ] but an effective
waiver must, as was said in Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 ,
be one of a "known right or privilege."

															Butts makes two arguments in support of his contention that
Curtis' failure to raise constitutional defenses amounted to a
knowing waiver. The first is that the general state of the law at
the time of this trial was such that Curtis should, in the words of
the Fifth Circuit majority, have seen "the handwriting on the
wall." 351 F.2d at 734. We cannot accept this contention. Although
our decision in New York Times did draw upon earlier
precedents in state law, e.g., Coleman v. MacLennan, 78
Kan. 711, 98 P. 281, and there were intimations in a prior opinion
and the extrajudicial comments of one Justice [ Footnote 7 ] that some applications of libel law
might be in conflict with the guarantees of free speech and press,
there was strong precedent indicating that civil libel actions Page 388 U. S. 144 were immune from general constitutional scrutiny. [ Footnote 8 ] Given the state of the law prior
to our decision in New York Times, we do not think it
unreasonable for a lawyer trying a case of this kind, where the
plaintiff was not even a public official under state law, to have
looked solely to the defenses provided by state libel law. Nor do
we think that the previous grant of certiorari in New York
Times alone indicates a different conclusion. The questions
presented for review there were premised on Sullivan's status as an
elected public official, and elected officials traditionally have
been subject to special rules of libel law. [ Footnote 9 ]

															Butts' second contention is that whatever defenses might
reasonably have been apparent to the average lawyer, some of
Curtis' trial attorneys were involved in the New York
Times litigation, and thus should have been especially alert
to constitutional contentions. This was the argument which swayed
the Court of Appeals, but we do not find it convincing.

															First, as a general matter, we think it inadvisable to determine
whether a "right or privilege" is "known" by relying on information
outside the record concerning the special legal knowledge of
particular attorneys. Second, even a lawyer fully cognizant of the
record and briefs in the New York Times litigation might
reasonably have expected the resolution of that case to have no
impact Page 388 U. S. 145 on this litigation, since the arguments advanced there depended
so heavily on the analogy to seditious libel. We think that it was
our eventual resolution of New York Times, rather than its
facts and the arguments presented by counsel, which brought out the
constitutional question here. We would not hold that Curtis waived
a "known right" before it was aware of the New York Times decision. It is agreed that Curtis' presentation of the
constitutional issue after our decision in New York Times was prompt.

															Our rejection of Butts' arguments is supported by factors which
point to the justice of that conclusion. See Hormel v.
Helvering, 312 U. S. 552 , 312 U. S.
556 -557. Curtis' constitutional points were raised early
enough so that this Court has had the benefit of some ventilation
of them by the courts below. The resolution of the merits of
Curtis' contentions by the District Court makes it evident that
Butts was not prejudiced by the time at which Curtis raised its
argument, for it cannot be asserted that an earlier interposition
would have resulted in any different proceedings below. [ Footnote 10 ] Finally, the
constitutional protection which Butts contends that Curtis has
waived safeguards a freedom which is the "matrix, the indispensable
condition, of nearly every other form of freedom." Palko v.
Connecticut, 302 U. S. 319 , 302 U. S. 327 .
Where the ultimate effect of sustaining a claim of waiver might be
an imposition on that valued freedom, we are unwilling to find
waiver in circumstances which fall short of being clear and
compelling. Cf. New York Times Co. v. Connor, 365 F.2d
567, 572. Page 388 U. S. 146 IV We thus turn to a consideration, on the merits, of the
constitutional claims raised by Curtis' in Butts and by
the Associated Press in Walker. Powerful arguments are
brought to bear for the extension of the New York Times rule in both cases. In Butts, it is contended that the
facts are on all fours with those of Rosenblatt v. Baer,
supra, since Butts was charged with the important
responsibility of managing the athletic affairs of a state
university. It is argued that, while the Athletic Association is
financially independent from the State and Butts was not
technically a state employee, as was Baer, his role in state
administration was so significant that this technical distinction
from Rosenblatt should be ignored. Even if this factor is
to be given some weight, we are told that the public interest in
education in general, and in the conduct of the athletic affairs of
educational institutions in particular, justifies constitutional
protection of discussion of persons involved in it equivalent to
the protection afforded discussion of public officials.

															A similar argument is raised in the Walker case, where
the important public interest in being informed about the events
and personalities involved in the Mississippi riot is pressed. In
that case, we are also urged to recognize that Walker's claims to
the protection of libel laws are limited, since he thrust himself
into the "vortex" of the controversy.

															We are urged by the respondents, Butts and Walker, to recognize
society's "pervasive and strong interest in preventing and
redressing attacks upon reputation," and the "important social
values which underlie the law of defamation." Rosenblatt v.
Baer, supra, at 383 U. S. 86 . It
is pointed out that the publicity in these instances was not
directed at employees of government, and that these cases cannot be
analogized to seditious libel prosecutions. Id. at 383 U. S. 92 (STEWART, J., concurring). We are Page 388 U. S. 147 told that

															"[t]he rule that permits satisfaction of the deep-seated need
for vindication of honor is not a mere historic relic, but promotes
the law's civilizing function of providing an acceptable substitute
for violence in the settlement of disputes," Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C.
70, 81, 366 F.2d 649, 660, and that:

															"Newspapers, magazines, and broadcasting companies are
businesses conducted for profit, and often make very large ones.
Like other enterprises that inflict damage in the course of
performing a service highly useful to the public . . . , they must
pay the freight, and injured persons should not be relegated [to
remedies which] make collection of their claims difficult or
impossible unless strong policy considerations demand." Buckley v. New York Post Corp., 373 F.2d 175, 182.

															We fully recognize the force of these competing considerations
and the fact that an accommodation between them is necessary not
only in these cases, but in all libel actions arising from a
publication concerning public issues. In Time, Inc. v.
Hill, 385 U. S. 374 , 385 U. S. 388 ,
we held that "[t]he guarantees for speech and press are not the
preserve of political expression or comment upon public affairs . .
.", and affirmed that freedom of discussion

															"must embrace all issues about which information is needed or
appropriate to enable the members of society to cope with the
exigencies of their period." Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 102 .
This carries out the intent of the Founders, who felt that a free
press would advance "truth, science, morality, and arts in
general," as well as responsible government. Letter to the
Inhabitants of Quebec, 1 Journals of the Continental Cong. 108.
From the point of view of deciding whether a constitutional
interest of free speech and press is properly involved in the
resolution of a libel question, a rational Page 388 U. S. 148 distinction

															"cannot be founded on the assumption that criticism of private
citizens who seek to lead in the determination of . . . policy will
be less important to the public interest than will criticism of
government officials." Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188,
196.

															On the other hand, to take the rule found appropriate in New
York Times to resolve the "tension" between the particular
constitutional interest there involved and the interests of
personal reputation and press responsibility, Rosenblatt v.
Baer, supra, at 383 U. S. 86 , as
being applicable throughout the realm of the broader constitutional
interest would be to attribute to this aspect of New York
Times an unintended inexorability at the threshold of this new
constitutional development. In Time, Inc. v. Hill, supra, at 385 U. S. 390 ,
we counseled against "blind application of New York Times Co.
v. Sullivan ", and considered "the factors which arise in the
particular context." Here we must undertake a parallel evaluation.
[ Footnote 11 ]

															The modern history of the guarantee of freedom of speech and
press mainly has been one of a search for the outer limits of that
right. From the fountainhead opinions of Justices Holmes and
Brandeis in Schenck, Abrams, and Whitney, [ Footnote 12 ] which
considered the problem when the disruptive effects of speech might
strip the protection from the speaker, to our recent decision in Adderley v. Florida, 385 U. S. 39 , where
we found freedom of speech not to include a freedom to trespass,
the Court's primary concern has been to determine the extent of the
right and the surrounding safeguards necessary to give it
"breathing space." NAACP v. Page 388 U. S. 149 Button, 371 U. S. 415 , 371 U. S. 433 .
That concern has perhaps omitted from searching consideration the
"real problem" of defining or delimiting the right itself. See Freund, Mr. Justice Black and the Judicial Function,
14 U.C.L.A.L.Rev. 467, 471.

															It is significant that the guarantee of freedom of speech and
press falls between the religious guarantees and the guarantee of
the right to petition for redress of grievances in the text of the
First Amendment, the principles of which are carried to the States
by the Fourteenth Amendment. It partakes of the nature of both, for
it is as much a guarantee to individuals of their personal right to
make their thoughts public and put them before the community, see Holt, Of the Liberty of the Press, in Nelson, Freedom
of the Press from Hamilton to the Warren Court 18-19, as it is a
social necessity required for the "maintenance of our political
system and an open society." Time, Inc. v. Hill, supra, at 385 U. S. 389 .
It is because of the personal nature of this right that we have
rejected all manner of prior restraint on publication, Near v.
Minnesota, 283 U. S. 697 ,
despite strong arguments that, if the material was unprotected, the
time of suppression was immaterial. Pound, Equitable Relief Against
Defamation and Injuries to Personality, 29 Harv.L.Rev. 640. The
dissemination of the individual's opinions on matters of public
interest is for us, in the historic words of the Declaration of
Independence, an "unalienable right" that "governments are
instituted among men to secure." History shows us that the Founders
were not always convinced that unlimited discussion of public
issues would be "for the benefit of all of us," [ Footnote 13 ] but that they firmly adhered
to the proposition that the "true liberty of the press" permitted
"every man to publish Page 388 U. S. 150 his opinion." Respublica v. Oswald, 1 Dall. 319, 325
(Pa.).

															The fact that dissemination of information and opinion on
questions of public concern is ordinarily a legitimate, protected
and indeed cherished activity does not mean, however, that one may
in all respects carry on that activity exempt from sanctions
designed to safeguard the legitimate interests of others. A
business

															"is not immune from regulation because it is an agency of the
press. The publisher of a newspaper has no special immunity from
the application of general laws. He has no special privilege to
invade the rights and liberties of others." Associated Press v. Labor Board, 301 U.
S. 103 , 301 U. S.
132 -133. Federal securities regulation, [ Footnote 14 ] mail fraud statutes, [ Footnote 15 ] and common law actions
for deceit and misrepresentation [ Footnote 16 ] are only some examples of our understanding
that the right to communicate information of public interest is not
"unconditional." See Note, Freedom of Expression in a
Commercial Context, 78 Harv.L.Rev. 1191. However, as our decision
in New York Times makes explicit, while protected activity
may, in some respects, be subjected to sanctions, it is not open to
all forms of regulation. The guarantees of freedom of speech and
press were not designed to prevent

															"the censorship of the press merely, but any action of the
government by means of which it might prevent such free and general
discussion of public matters as seems absolutely essential. . .
."

															2 Cooley, Constitutional Limitations 886 (8th ed.). Our
touchstones are that acceptable Page 388 U. S. 151 limitations must neither affect "the impartial distribution of
news" and ideas, Associated Press v. Labor Board, supra, at 301 U. S. 133 ,
nor because of their history or impact constitute a special burden
on the press, Grosjean v. American Press Co., Inc., 297 U. S. 233 , nor
deprive our free society of the stimulating benefit of varied ideas
because their purveyors fear physical or economic retribution
solely because of what they choose to think and publish.

															The history of libel law leaves little doubt that it originated
in soil entirely different from that which nurtured these
constitutional values. Early libel was primarily a criminal remedy,
the function of which was to make punishable any writing which
tended to bring into disrepute the state, established religion, or
any individual likely to be provoked to a breach of the peace
because of the words. Truth was no defense in such actions, and,
while a proof of truth might prevent recovery in a civil action,
this limitation is more readily explained as a manifestation of
judicial reluctance to enrich an undeserving plaintiff than by the
supposition that the defendant was protected by the truth of the
publication. The same truthful statement might be the basis of a
criminal libel action. See Commonwealth v. Clap, 4 Mass.
163; see generally Veeder, The History and Theory of the
Law of Defamation, 3 Col.L.Rev. 546, 4 Col.L.Rev. 33.

															The law of libel has, of course, changed substantially since the
early days of the Republic, and this change is "the direct
consequence of the friction between it . . . and the highly
cherished right of free speech." State v. Browne, 86
N.J.Super. 217, 228, 206 A.2d 591 , 597. The emphasis has shifted from criminal to
civil remedies, from the protection of absolute social values to
the safeguarding of valid personal interests. Truth has become an
absolute defense in almost all cases, [ Footnote 17 ] and privileges designed to foster free
communication are almost universally Page 388 U. S. 152 recognized. [ Footnote 18 ]
But the basic theory of libel has not changed, and words defamatory
of another are still placed "in the same class with the use of
explosives or the keeping of dangerous animals." Prosser, The Law
of Torts § 108, at 792. Thus, some antithesis between freedom of
speech and press and libel actions persists, for libel remains
premised on the content of speech and limits the freedom of the
publisher to express certain sentiments, at least without
guaranteeing legal proof of their substantial accuracy.

															While the truth of the underlying facts might be said to mark
the line between publications which are of significant social value
and those which might be suppressed without serious social harm,
and thus resolve the antithesis on a neutral ground, we have
rejected, in prior cases involving materials and persons commanding
justified and important public interest, the argument that a
finding of falsity alone should strip protections from the
publisher. New York Times Co. v. Sullivan, supra, at 376 U. S. 272 .
We have recognized "the inevitability of some error in the
situation presented in free debate," Time, Inc. v. Hill,
supra, at 385 U. S. 406 (opinion of this writer), and that "putting to the preexisting
prejudices of a jury the determination of what is true' may
effectively institute a system of censorship." Our resolution of New York Times Co. v. Sullivan, in
the context of the numerous statutes and cases which allow
ideologically neutral and generally applicable regulatory measures
to be applied to publication, makes clear, however, that neither
the interests of the publisher nor those of society necessarily
preclude a damage award Page 388 U. S. 153 based on improper conduct which creates a false publication. It
is the conduct element, therefore, on which we must principally
focus if we are successfully to resolve the antithesis between
civil libel actions and the freedom of speech and press.
Impositions based on misconduct can be neutral with respect to
content of the speech involved, free of historical taint, and
adjusted to strike a fair balance between the interests of the
community in free circulation of information and those of
individuals in seeking recompense for harm done by the circulation
of defamatory falsehood.

															In New York Times, we were adjudicating in an area
which lay close to seditious libel, and history dictated extreme
caution in imposing liability. The plaintiff in that case was an
official whose position in government was such "that the public
[had] an independent interest in the qualifications and performance
of the person who [held] it." Rosenblatt v. Baer, supra, at 383 U. S. 86 .
Such officials usually enjoy a privilege against libel actions for
their utterances, see, e.g., Barr v. Matteo, 360 U.
S. 564 , and there were analogous considerations involved
in New York Times, supra, at 376 U. S. 282 .
Thus, we invoked

															"the hypothesis that speech can rebut speech, propaganda will
answer propaganda, free debate of ideas will result in the wisest
governmental policies," Dennis v. United States, 341 U.
S. 494 , 341 U. S. 503 ,
and limited recovery to those cases where "calculated falsehood"
placed the publisher

															"at odds with the premises of democratic government and with the
orderly manner in which economic, social, or political change is to
be effected." Garrison v. Louisiana, 379 U. S.
64 , 379 U. S. 75 .
That is to say, such officials were permitted to recover in libel
only when they could prove that the publication involved was
deliberately falsified, or published recklessly despite the
publisher's awareness of probable falsity. Investigatory failures
alone were held insufficient to satisfy this standard. See New
York Page 388 U. S. 154 Times, at 376 U. S.
286 -288, 376 U. S. 292 ; Garrison v. Louisiana, supra, at 379 U. S. 73 -75, 379 U. S.
79 .

															In the cases we decide today, none of the particular
considerations involved in New York Times is present.
These actions cannot be analogized to prosecutions for seditious
libel. Neither plaintiff has any position in government which would
permit a recovery by him to be viewed as a vindication of
governmental policy. Neither was entitled to a special privilege
protecting his utterances against accountability in libel. We are
prompted, therefore, to seek guidance from the rules of liability
which prevail in our society with respect to compensation of
persons injured by the improper performance of a legitimate
activity by another. Under these rules, a departure from the kind
of care society may expect from a reasonable man performing such
activity leaves the actor open to a judicial shifting of loss. In
defining these rules, and especially in formulating the standards
for determining the degree of care to be expected in the
circumstances, courts have consistently given much attention to the
importance of defendants' activities. Prosser, The Law of Torts §
31, at 151. The courts have also, especially in libel cases,
investigated the plaintiff's position to determine whether he has a
legitimate call upon the court for protection in light of his prior
activities and means of self-defense. See Brewer v. Hearst
Publishing Co., 185 F.2d 846; Flanagan v. Nicholson
Publishing Co., 137 La. 588, 68 So. 964. We note that the
public interest in the circulation of the materials here involved,
and the publisher's interest in circulating them, is not less than
that involved in New York Times. And both Butts and Walker
commanded a substantial amount of independent public interest at
the time of the publications; both, in our opinion, would have been
labeled "public figures" under ordinary tort rules. See Spahn
v. Julian Messner, Inc., 18 N.Y.2d 324, 221 N.E.2d 543, remanded Page 388 U. S. 155 on other grounds, 387 U. S. 239 .
Butts may have attained that status by position alone, and Walker
by his purposeful activity amounting to a thrusting of his
personality into the "vortex" of an important public controversy,
but both commanded sufficient continuing public interest and had
sufficient access to the means of counterargument to be able "to
expose through discussion the falsehood and fallacies" of the
defamatory statements. Whitney v. California, 274 U.
S. 357 , 274 U. S. 377 (Brandeis, J., dissenting).

															These similarities and differences between libel actions
involving persons who are public officials and libel actions
involving those circumstanced as were Butts and Walker, viewed in
light of the principles of liability which are of general
applicability in our society, lead us to the conclusion that libel
actions of the present kind cannot be left entirely to state libel
laws, unlimited by any overriding constitutional safeguard, but
that the rigorous federal requirements of New York Times are not the only appropriate accommodation of the conflicting
interests at stake. We consider and would hold that a "public
figure" who is not a public official may also recover damages for a
defamatory falsehood whose substance makes substantial danger to
reputation apparent, on a showing of highly unreasonable conduct
constituting an extreme departure from the standards of
investigation and reporting ordinarily adhered to by responsible
publishers. Cf. Sulzberger, Responsibility and Freedom, in
Nelson, Freedom of the Press from Hamilton to the Warren Court 409,
412.

															Nothing in this opinion is meant to affect the holdings in New York Times and its progeny, including our recent
decision in Time, Inc. v. Hill, [ Footnote 19 ] Page 388 U. S. 156 V Having set forth the standard by which we believe the
constitutionality of the damage awards in these cases must be
judged, we turn now, as the Court did in New York Times, to the question whether the evidence and findings below meet that
standard. We find the standard satisfied in No. 37, Butts, and not satisfied by either the evidence or the findings in No.
150, Walker. The Butts jury was instructed, in considering punitive
damages, to assess

															"the reliability, the nature of the sources of the defendant's
information, its acceptance or rejection of the sources, and its
care in checking upon assertions."

															These considerations were said to be relevant to a determination
whether defendant had proceeded with "wanton and reckless
indifference." In this light, we consider that the jury must have
decided that the investigation undertaken by the Saturday Evening
Post, upon which much evidence and argument was centered, [ Footnote 20 ] was grossly inadequate
in the circumstances. The impact of a jury instruction

															"is not to be ascertained by Page 388 U. S. 157 merely considering isolated statements, but by taking into view
all the instructions given and the tendencies of the proof in the
case to which they could possibly be applied." Seaboard Air Line R. Co. v. Padgett, 236 U.
S. 668 , 236 U. S.
672 .

															This jury finding was found to be supported by the evidence by
the trial judge and the majority in the Fifth Circuit. Given the
extended history of the case, the amount of the evidence pointing
to serious deficiencies in investigatory procedure, and the severe
harm inflicted on Butts, we would not feel justified in ordering a
retrial of the compensatory damage issue, either on the theory that
this aspect of the case was submitted to the jury only under the
issue of "truth," [ Footnote
21 ] or on the very slim possibility that the jury finding
regarding punitive damages might have been based on Curtis'
attitude toward Butts, rather than on Curtis' conduct.

															The evidence showed that the Butts story was in no sense "hot
news," and the editors of the magazine recognized the need for a
thorough investigation of the serious charges. Elementary
precautions were, nevertheless, ignored. The Saturday Evening Post
knew that Burnett had been placed on probation in connection with
bad check charges, but proceeded to publish the story on the basis
of his affidavit, without substantial independent support.
Burnett's notes were not even viewed by any of the magazine's
personnel prior to publication. John Carmichael, who was supposed
to have been with Burnett when the phone call was overheard, was
not interviewed. No attempt was made to screen the films of the
game to see if Burnett's information was accurate, and no attempt
was made to find out whether Alabama had adjusted its plans after
the alleged divulgence of information. Page 388 U. S. 158 The Post writer assigned to the story was not a football expert,
and no attempt was made to check the story with someone
knowledgeable in the sport. At trial, such experts indicated that
the information in the Burnett notes was either such that it would
be evident to any opposing coach from game films regularly
exchanged, or valueless. Those assisting the Post writer in his
investigation were already deeply involved in another libel action,
based on a different article, brought against Curtis Publishing Co.
by the Alabama coach and unlikely to be the source of a complete
and objective investigation. The Saturday Evening Post was anxious
to change its image by instituting a policy of "sophisticated
muckraking," and the pressure to produce a successful expose might
have induced a stretching of standards. In short, the evidence is
ample to support a finding of highly unreasonable conduct
constituting an extreme departure from the standards of
investigation and reporting ordinarily adhered to by responsible
publishers.

															The situation in Walker is considerably different.
There, the trial court found the evidence insufficient to support
more than a finding of even ordinary negligence, and the Court of
Civil Appeals supported the trial court's view of the evidence.
Ordinarily we would, under the governing constitutional standard,
reverse the decision below on the concurrent findings rule. Graver Tank Mfg. Co. v. Linde Air Products Co., 336 U. S. 271 , 336 U. S. 275 .
But, as in New York Times, we think it better to face for
ourselves the question whether there is sufficient evidence to
support the finding we would require.

															In contrast to the Butts article, the dispatch which
concerns us in Walker was news which required immediate
dissemination. The Associated Press received the information from a
correspondent who was present at the scene of the events and gave
every indication of being trustworthy and competent. His dispatches
in this instance, Page 388 U. S. 159 with one minor exception, were internally consistent, and would
not have seemed unreasonable to one familiar with General Walker's
prior publicized statements on the underlying controversy.
[ Footnote 22 ] Considering
the necessity for rapid dissemination, nothing in this series of
events gives the slightest hint of a severe departure from accepted
publishing standards. We therefore conclude that General Walker
should not be entitled to damages from the Associated Press. VI We come finally to Curtis' contention that, whether or not it
can be required to compensate Butts for any injury it may have
caused him, it cannot be subjected to an assessment for punitive
damages limited only by the "enlightened conscience" of the
community. Curtis recognizes that the Constitution presents no
general bar to the assessment of punitive damages in a civil case, Day v.
Woodworth , 13 How. 363, 54 U. S.
370 -371, but contends that an unlimited punitive award
against a magazine publisher constitutes an effective prior
restraint by giving the jury the power to destroy the publisher's
business. We cannot accept this reasoning. Publishers like Curtis
engage in a wide variety of activities which may Page 388 U. S. 160 lead to tort suits where punitive damages are a possibility. To
exempt a publisher, because of the nature of his calling, from an
imposition generally exacted from other members of the community
would be to extend a protection not required by the constitutional
guarantee. Associated Press v. Labor Board, 301 U.
S. 103 . We think the constitutional guarantee of freedom
of speech and press is adequately served by judicial control over
excessive jury verdicts, manifested in this instance by the trial
court's remittitur and by the general rule that a verdict based on
jury prejudice cannot be sustained even when punitive damages are
warranted. See, e.g., Minneapolis, St. P. & S.S.M. R. Co.
v. Moquin, 283 U. S. 520 , 283 U. S.
521 .

															Despite this conclusion, it might be argued that an award of
punitive damages cannot be justified constitutionally by the same
degree of misconduct required to support a compensatory award. The
usual rule in libel actions, and other state-created tort actions,
is that a higher degree of fault is necessary to sustain a punitive
imposition than a compensatory award. And it might be asserted that
the need to compensate the injured plaintiff is not relevant to the
issue of punitive damages in libel, since an award of general
damages compensates for any possible pecuniary and intangible harm.
Thus, the argument would be that the strong speech and press
interest in publishing material on public issues, which we have
recognized as parallel to the interest in publishing political
criticism present in New York Times, must be served by a
limitation on punitive damages restricting them to cases of "actual
malice" as defined in New York Times and Garrison v.
Louisiana, supra. We find the force of any such argument quite
insufficient to overcome the compelling contrary considerations,
and there is, moreover, nothing in any of our past cases which
suggests that compensatory and punitive damages are subject to
different constitutional standards of misconduct. Page 388 U. S. 161 Where a publisher's departure from standards of press
responsibility is severe enough to strip from him the
constitutional protection our decision acknowledges, we think it
entirely proper for the State to act not only for the protection of
the individual injured, but to safeguard all those similarly
situated against like abuse. Moreover, punitive damages require a
finding of "ill will" under general libel law, and it is not unjust
that a publisher be forced to pay for the "venting of his spleen"
in a manner which does not meet even the minimum standards required
for constitutional protection. Especially in those cases where
circumstances outside the publication itself reduce its impact
sufficiently to make a compensatory imposition an inordinately
light burden, punitive damages serve a wholly legitimate purpose in
the protection of individual reputation. We would hold, therefore,
that misconduct sufficient to justify the award of compensatory
damages also justifies the imposition of a punitive award, subject,
of course, to the limitation that such award is not demonstrated to
be founded on the mere prejudice of the jury. As we have already
noted ( supra, pp. 388 U. S. 156 -158) the case on punitive damages was put
to the jury under instructions which satisfied the constitutional
test we would apply in cases of this kind, and the evidence amply
supported the jury's findings. [ Footnote 23 ]

															The judgment of the Court of Appeals for the Fifth Circuit in
No. 37 is affirmed. The judgment of the Page 388 U. S. 162 Texas Court of Civil Appeals in No. 150 is reversed, and the
case is remanded to that court for further proceedings not
inconsistent with the opinions that have been filed herein by THE
CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE BRENNAN. It is so ordered. * Together with No. 150, Associated Press v Walker, on
certiorari to the Court of Civil Appeals of Texas, 2d Supreme
Judicial District.

															* Five members of the Court, while concurring in the result
reached in No. 150, would rest decision on grounds other than those
stated in this opinion. See separate opinions of THE CHIEF
JUSTICE ( post, p. 388 U. S. 162 ), of MR. JUSTICE BLACK ( post, p. 388 U. S.
170 ), and of MR. JUSTICE BRENNAN ( post, p. 388 U. S.
172 ).

															[ Footnote 1 ] See also Afro-American Publishing Co. v. Jaffe, 125
U.S.App.D.C. 70, 366 F.2d 649; Washington Post Co. v.
Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965; Pauling v.
Globe-Democrat Publishing Co., 362 F.2d 188; Pape v. Time,
Inc., 354 F.2d 558; Pauling v. News Syndicate Co.,
Inc., 335 F.2d 659; Fignole v. Curtis Publishing
Co., 247 F.
Supp. 595 ; Walker v. Courier-Journal & Louisville Times
Co., 246 F.
Supp. 231 ; United Medical Labs v. CBS,
Inc., 258 F.
Supp. 735 ; Klahr v. Winterble, 4 Ariz.App. 158, 418
P.2d 404; Walker v. Associated Press, ___ Colo. ___, 417 P.2d 486 ; Powell v. Monitor Publishing Co., Inc., 107 N.H. 83, 217
A.2d 193; Eadie v. Pole, 91 N.J.Super. 504, 221 A.2d 547 ; State v. Browne, 86 N.J.Super. 217, 206 A.2d 591 ; People v. Mager, 25 App.Div.2d 363, 69
N.Y.S.2d 848; Gilberg v. Goffi, 21 App.Div.2d 517, 251
N.Y.S.2d 823; Krutech v. Schimmel, 50 Misc.2d 1052, 272
N.Y.S.2d 261; Cabin v. Community Newspapers, Inc., 50
Misc.2d 574, 270 N.Y.S.2d 913; Pauling v. National Review, 49 Misc.2d 975, 269 N.Y.S.2d 11; Block v. Benton, 44
Misc.2d 1053, 255 N.Y.S.2d 767; Fegley v. Morthimer, 204
Pa.Super. 54, 202 A.2d 125; Tucker v.
Kilgore, 388
S.W.2d 112 (Ky.).

															[ Footnote 2 ]

															In Allen v. Regents of the University System of
Georgia, 304 U. S. 439 ,
this Court described the Athletic Association as a body carrying on
"a business comparable in all essentials to those usually conducted
by private owners." Id. at 304 U. S. 451 .
Section 32-153 of the Georgia Code specifically provides that
athletic associations are not to be considered agencies of the
State.

															[ Footnote 3 ]

															Actual malice was defined by the charge as encompassing

															"the notion of ill will, spite, hatred and an intent to injure
one. Malice also denotes a wanton or reckless indifference or
culpable negligence with regard to the rights of others."

															The jury was told that whether "actual malice or wanton or
reckless indifference has been established must be determined from
all of the evidence in the case." The trial court then directed the
jury's attention to the circumstances of preparation. The impact of
the charge is considered in more detail at 388 U. S.
156 -158, infra. [ Footnote 4 ]

															Two particular statements were at issue, the remark that "Walker
assumed command of the crowd," and the accusation that Walker led a
charge against the marshals.

															[ Footnote 5 ] See Tehan v. Shott, 382 U. S. 406 , 382 U. S. 409 ,
n. 3; Linkletter v. Walker, 381 U.
S. 618 , 381 U. S.
622 -629; Griffin v. California, 380 U.
S. 609 ; White v. Maryland, 373 U. S.
59 .

															[ Footnote 6 ] See also Ackermann v. United States, 340 U.
S. 193 , 340 U. S.
198 .

															[ Footnote 7 ]

															In Beauharnais v. Illinois, 343 U.
S. 250 , the Court had upheld an Illinois group libel
statute, but the majority had warned that,

															"'While this Court sits,' it retains and exercises authority to
nullify action which encroaches on freedom of utterance under the
guise of punishing libel." Id. at 343 U. S.
263 -264. There were also four vigorous dissenters to the
holding in that case. An article appearing in the June, 1962, New
York University Law Review had quoted MR. JUSTICE BLACK as
believing that "there should be no libel or defamation law in the
United States. . . ." Cahn, Justice Black and First Amendment
"Absolutes": A Public Interview, 37 N.Y.U.L.Rev. 549, 557.

															[ Footnote 8 ]

															In Robertson v. Baldwin, 165 U.
S. 275 , 165 U. S. 281 ,
the Court said:

															"Thus, the freedom of speech and of the press (art. 1) does not
permit the publication of libels, blasphemous or indecent articles,
or other publications injurious to public morals or private
reputation. . . ."

															That sentiment was repeated in a number of cases, including Beauharnais v. Illinois, supra, n 7. See Near v. Minnesota, 283 U.
S. 697 , 283 U. S. 715 ; Chaplinsky v. New Hampshire, 315 U.
S. 568 .

															[ Footnote 9 ] See, e.g., Sweeney v. Patterson, 76 U.S.App.D.C. 23,
128 F.2d 457; Hendrix v. Mobile Register, 202 Ala. 616, 81
So. 558.

															[ Footnote 10 ]

															Even after our decision in New York Times was before
him, the trial judge held it inapplicable. It is almost certain
that he would have rebuffed any effort to interpose general
constitutional defenses at the time of trial. See Comment,
Waiver of a Previously Unrecognized Defense: Must Lawyers Be
Seers?, 114 U.Pa.L.Rev. 451.

															[ Footnote 11 ]

															The majority opinion in Time, Inc. v. Hill, 385 U. S. 374 , was
limited to the consideration of nondefamatory matter. Id. at 385 U. S.
391 .

															[ Footnote 12 ] Schenck v. United States, 249 U. S.
47 (Holmes, J.); Abrams v. United States, 250 U. S. 616 , 250 U. S. 624 (Holmes, J., dissenting); Whitney v. California, 274 U. S. 357 , 274 U. S. 372 (Brandeis, J., concurring).

															[ Footnote 13 ] See Levy, Legacy of Suppression. The phrase is from the
Court's opinion in Time, Inc. v. Hill, supra, at 385 U. S.
389 .

															[ Footnote 14 ] E.g., 48 Stat. 82, as amended, 15 U.S.C. § 77k
(penalizing negligent misstatement).

															[ Footnote 15 ]

															18 U.S.C. § 1341.

															[ Footnote 16 ] See Traylor Engineering & Mfg. Co. v. National Container
Corp., 45 Del. 143, 70 A.2d 9; Restatement, Torts § 525
(deceit); Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N.E. 1039 (negligent misrepresentation).

															[ Footnote 17 ] See 1 Harper & James, The Law of Torts § 5.20.

															[ Footnote 18 ]

															Some privileges, such as the one pertaining to reports of
judicial proceedings, are recognized as absolute. Others, such as
the fair comment privilege, are recognized only as conditional
privileges, and may be vitiated by proof of actual malice. See
generally Prosser, The Law of Torts §§ 109, 110.

															[ Footnote 19 ]

															Nor does anything we have said touch, in any way, libel or other
tort actions not involving public figures or matters of public
interest.

															[ Footnote 20 ]

															Counsel for Butts continually pressed upon the jury in argument
that the defendant had failed to exercise a minimum of care. He did
not seriously contend that the Saturday Evening Post was actuated
by preexisting animosity toward Butts. Arguing that the
misquotations which were shown to be present were proof of malice,
he stated: "I say that is not fair journalism; I say that is not
true, careful reporting." After reviewing the failure of Curtis to
interview Carmichael ( see p. 388 U. S. 157 , infra ) or to check the game films, he asked the jury:

															"Again, is that good reporting? Is that what the field or the
profession of journalism owes you and owes me . . . when it is
getting ready to write an article which it knows and which it
states therein that it is going to ruin us. . . ."

															The gist of Butts' contention on "actual malice" was that Curtis
had been anxious to publish an expose, and had thus wantonly and
recklessly seized on a questionable affidavit from Burnett. It is
this theory which we feel that the jury must have accepted in
awarding punitive damages.

															[ Footnote 21 ]

															It is inconceivable that the jury might have treated the
"investigatory" evidence differently if it had been presented with
respect to compensatory damages, rather than with regard to
punitive damages.

															[ Footnote 22 ]

															On September 26, 1962, Walker had made a statement on radio
station KWKH at Shreveport, Louisiana, urging people to "[r]ise to
a stand beside Governor Ross Barnett at Jackson, Mississippi." He
contended that the people had "talked, listened and been pushed
around far too much. . . ." He promised that he would "be there,"
on "the right side." The next morning, in a television appearance
in Dallas, he repeated the same sentiments, and he set out his
views once again from New Orleans on the evening of September 28,
1962. On September 29, 1962, Walker arrived in Jackson,
Mississippi, and held another press and television conference in
which he called for "violent vocal protest." On the afternoon of
September 30, 1962, Walker held a final press conference at which
he again urged defiance of court orders and federal power.

															[ Footnote 23 ]

															It should also be noted that, prior to publication, the Saturday
Evening Post had been notified both by Butts and his daughter that
the material about to be printed was false. Despite these warnings,
and the fact that no member of the staff had ever even seen
Burnett's crucial notes, no further efforts at investigation were
undertaken prior to publication. It might indeed be argued that
this conduct would have sufficed, under proper instructions, to
satisfy even the "actual malice" standard of New York
Times, the notice to the Saturday Evening Post being
considered as furnishing the necessary "mental element." New
York Times, supra, at 376 U. S. 287 .

															MR. CHIEF JUSTICE WARREN, concurring in the result.

															While I agree with the results announced by MR. JUSTICE HARLAN
in both of these cases, I find myself in disagreement with his
stated reasons for reaching those results. Our difference stems
from his departure from the teaching of New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), to which we both subscribed only three years ago. I In the New York Times case, we held that a State
cannot, consistently with the First and Fourteenth Amendments,
award damages to a "public official" for a defamatory falsehood
relating to his official conduct unless the verdict is based on
proof of "actual malice" -- that is, proof that the defamatory
statement was made "with knowledge that it was false or with
reckless disregard of whether it was false or not." 376 U.S. at 376 U. S. 280 .
The present cases involve not "public officials," but "public
figures" whose views and actions with respect to public issues and
events are often of as much concern to the citizen as the attitudes
and behavior of "public officials" with respect to the same issues
and events.

															All of us agree that the basic considerations underlying the
First Amendment require that some limitations be placed on the
application of state libel laws to "public figures" as well as
"public officials." Similarly, the seven members of the Court who
deem it necessary to pass upon the question agree that the
respondents in these cases are "public figures" for First Amendment
purposes. Page 388 U. S. 163 Having reached this point, however, MR. JUSTICE HARLAN's opinion
departs from the standard of New York Times and
substitutes in cases involving "public figures" a standard that is
based on "highly unreasonable conduct" and is phrased in terms of
"extreme departure from the standards of investigation and
reporting ordinarily adhered to by responsible publishers"
( ante, p. 388 U. S.
155 ). I cannot believe that a standard which is based on
such an unusual and uncertain formulation could either guide a jury
of laymen or afford the protection for speech and debate that is
fundamental to our society and guaranteed by the First
Amendment.

															To me, differentiation between "public figures" and "public
officials" and adoption of separate standards of proof for each
have no basis in law, logic, or First Amendment policy.
Increasingly in this country, the distinctions between governmental
and private sectors are blurred. Since the depression of the 1930's
and World War II, there has been a rapid fusion of economic and
political power, a merging of science, industry, and government,
and a high degree of interaction between the intellectual,
governmental, and business worlds. Depression, war, international
tensions, national and international markets, and the surging
growth of science and technology have precipitated national and
international problems that demand national and international
solutions. While these trends and events have occasioned a
consolidation of governmental power, power has also become much
more organized in what we have commonly considered to be the
private sector. In many situations, policy determinations which
traditionally were channeled through formal political institutions
are now originated and implemented through a complex array of
boards, committees, commissions, corporations, and associations,
some only loosely connected with the Government. This blending of
positions and power has also occurred in Page 388 U. S. 164 the case of individuals, so that many who do not hold public
office at the moment are nevertheless intimately involved in the
resolution of important public questions or, by reason of their
fame, shape events in areas of concern to society at large.

															Viewed in this context, then, it is plain that, although they
are not subject to the restraints of the political process, "public
figures," like "public officials," often play an influential role
in ordering society. And surely, as a class, these "public figures"
have as ready access as "public officials" to mass media of
communication, both to influence policy and to counter criticism of
their views and activities. Our citizenry has a legitimate and
substantial interest in the conduct of such persons, and freedom of
the press to engage in uninhibited debate about their involvement
in public issues and events is as crucial as it is in the case of
"public officials." The fact that they are not amenable to the
restraints of the political process only underscores the legitimate
and substantial nature of the interest, since it means that public
opinion may be the only instrument by which society can attempt to
influence their conduct.

															I therefore adhere to the New York Times standard in
the case of "public figures" as well as "public officials." It is a
manageable standard, readily stated and understood, which also
balances to a proper degree the legitimate interests traditionally
protected by the law of defamation. Its definition of "actual
malice" is not so restrictive that recovery is limited to
situations where there is "knowing falsehood" on the part of the
publisher of false and defamatory matter. "Reckless disregard" for
the truth or falsity, measured by the conduct of the publisher,
will also expose him to liability for publishing false material
which is injurious to reputation. More significantly, however, the New York Times standard is an important safeguard for the
rights of the Page 388 U. S. 165 press and public to inform and be informed on matters of
legitimate interest. Evenly applied to cases involving "public men"
-- whether they be "public officials" or "public figures" -- it
will afford the necessary insulation for the fundamental interests
which the First Amendment was designed to protect. II I have no difficulty in concluding that No. 150, Associated
Press v. Walker, must be reversed since it is in clear
conflict with New York Times. The constitutional defenses
were properly raised and preserved by the petitioner. The trial
judge expressly ruled that no showing of malice in any sense had
been made, and he reversed an award of punitive damages for that
reason. The seven members of this Court who reach the question
agree with that conclusion, and all agree that the courts below
erred in holding the First Amendment inapplicable. Under any
reasoning, General Walker was a public man in whose public conduct
society and the press had a legitimate and substantial
interest. III But No. 37, Curtis Publishing Co. v. Butts, presents an
entirely different situation. There, no First Amendment defenses
were raised by the petitioner until after the trial. Because of
this failure and because the case was tried before our decision in New York Times, the trial judge did not instruct the jury
in terms of the precise formulation we adopted. In connection with
the issue of punitive damages, however, the trial judge did give an
"actual malice" instruction which invoked the elements we later
held necessary in New York Times. He instructed the jury
that it would have to find "actual malice" before awarding punitive
damages, and he continued by defining "actual malice" as denoting
"wanton or reckless indifference or culpable negligence with
regard Page 388 U. S. 166 to the rights of others" and as including notions of "ill will,
spite, hatred and an intent to injure one." Under the Georgia law
of defamation which governed the case, the jury was also
specifically required to find that the defamatory statements were
false before it could award any damages, and it was so instructed.
With the jury's attention thus focused on this threshold
requirement of falsity, the references in the instructions to
wanton or reckless indifference and culpable negligence most
probably resulted in a verdict based on the requirement of reckless
disregard for the truth of which we spoke in New York
Times. [ Footnote 2/1 ] Although
the "actual malice" instructions were not also given in connection
with the compensatory damage issue, it is difficult to conceive how
petitioner could have been prejudiced by that failure in view of
the fact that the jury, guided by "actual malice" instructions,
awarded $3,000,000 in punitive damages. [ Footnote 2/2 ]

															Unquestionably, in cases tried after our decision in New
York Times, we should require strict compliance with the
standard we established. We should not, however, Page 388 U. S. 167 be so inflexible in judging cases tried prior thereto,
especially when, as here, the trial judge -- unaided by advice or
objections from counsel -- recognized the essential principle and
conformed with it to a substantial degree. Moreover, after the New York Times rule was brought to the trial judge's
attention in a post-trial motion, he reviewed the record in light
of that precise standard and held that the jury verdict should not
be disturbed, since

															"there was ample evidence from which a jury could have concluded
that there was reckless disregard by the [petitioner] of whether
the article was false or not."

															An additional factor leads me to the conclusion that we should
not insist on the financial and emotional expenses of a retrial
here merely because the trial judge's instructions were not given
in the precise terms of the present constitutional standard.
[ Footnote 2/3 ] That factor, to
which I briefly adverted above, was the choice of the petitioner in
this case to raise only truth as a defense, and to omit in its
pleadings and at the trial any reference to possible First
Amendment defenses, or even to the conditional privilege provided
by Georgia law for "[c]omments upon the acts of public men in their
public capacity and with reference thereto." [ Footnote 2/4 ] I use the word "choice" in this Page 388 U. S. 168 connection, because the facts lead me, as they did the Court of
Appeals, to the firm conclusion that the omissions were deliberate.
Although this trial occurred before our decision in New York
Times, we had granted certiorari to review that case even
before the complaint here was filed. [ Footnote 2/5 ] The Alabama law firm which had represented
the New York Times in the state courts was involved in the
trial of this case. Lead counsel in the cases conferred
periodically, and one of the members of the Alabama law firm
referred to above sat at the counsel table throughout this trial.
The same Alabama law firm was retained to represent petitioner in a
lawsuit filed by Coach Paul Bryant, who was also libeled by the
magazine article here in question. First Amendment defenses were
raised both at the trial of the New York Times case and by
the pleadings in the Bryant lawsuit, which was settled for a
substantial sum of money. But counsel did not raise such defenses
here. Given the importance of this case to petitioner and the
interplay between overlapping counsel aligned on the same sides of
related lawsuits, I can only conclude that tactical or public
relations considerations explain the failure here to defend on
First Amendment grounds. IV Satisfied, as I am, that, under the circumstances of the Butts case, no retrial should be ordered merely because of
the instructions, I turn now to the final duty which this Court has
when violations of fundamental constitutional Page 388 U. S. 169 principles are alleged. We must review the evidence to ascertain
whether the judgment can stand consistently with those principles. New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S. 285 (1964); Speiser v. Randall, 357 U.
S. 513 , 357 U. S. 525 (1958).

															The petitioner in this case is a major factor in the publishing
business. Among its publications is the Saturday Evening Post,
which published the defamatory falsehoods here in question.
Apparently because of declining advertising revenues, an editorial
decision was made to "change the image" of the Saturday Evening
Post with the hope that circulation and advertising revenues would
thereby be increased. The starting point for this change of image
was an announcement that the magazine would embark upon a program
of "sophisticated muckraking," [ Footnote 2/6 ] designed to "provoke people, make them
mad."

															Shortly thereafter, and as an apparent implementation of the new
policy, the Saturday Evening Post purchased the rights to the
article which formed the subject matter of this case. The slipshod
and sketchy investigatory techniques employed to check the veracity
of the source and the inferences to be drawn from the few facts
believed to be true are detailed at length in the opinion of MR.
JUSTICE HARLAN. Suffice it to say that little investigative effort
was expended initially, and no additional inquiries were made even
after the editors were notified by respondent and his daughter that
the account Page 388 U. S. 170 to be published was absolutely untrue. Instead, the Saturday
Evening Post proceeded on its reckless course with full knowledge
of the harm that would likely result from publication of the
article. This knowledge was signaled by the statements at the
conclusion of the article that "Wally Butts will never help any
football team again," and "careers will be ruined, that is
sure."

															I am satisfied that the evidence here discloses that degree of
reckless disregard for the truth of which we spoke in New York
Times and Garrison. Freedom of the press under the
First Amendment does not include absolute license to destroy lives
or careers.

															[ Footnote 2/1 ]

															We held unconstitutional in Garrison v. Louisiana, 379 U. S. 64 (1964), a criminal defamation statute which authorized conviction
on proof that a defamatory statement had been motivated by ill
will. The statute did not require that the defamatory statement be
false to sustain such a conviction.

															[ Footnote 2/2 ]

															In the New York Times case, "actual malice"
instructions were given in connection with punitive damages.
However, we noted:

															"While Alabama law apparently requires proof of actual malice
for an award of punitive damages, where general damages are
concerned, malice is 'presumed.' Such a presumption is inconsistent
with the federal rule. . . . 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."

															376 U.S. at 376 U. S.
283 -284. (Emphasis added.) The jury in the present case
was required to separate compensatory and punitive damages.

															[ Footnote 2/3 ] Cf. Time, Inc. v. Hill, 385 U.
S. 374 , 385 U. S. 411 (1967) (dissenting opinion of MR. JUSTICE FORTAS).

															[ Footnote 2/4 ]

															Ga.Code Ann. § 105-709(6) provides:

															"Privileged communications. -- The following are deemed
privileged communications: "

															" * * * *" "6. Comments upon the acts of public men in their public
capacity and with reference thereto."

															This privilege is qualified by Ga.Code Ann. § 105-710, which
provides:

															"Malicious use of privilege. -- In every case of privileged
communications, if the privilege is used merely as a cloak for
venting private malice, and not bona fide in promotion of
the object for which the privilege is granted, the party defamed
shall have a right of action."

															[ Footnote 2/5 ]

															Certiorari was granted in New York Times Co. v.
Sullivan on January 7, 1963. 371 U.S. 946. The complaint in
this case was filed approximately 2 months later, on March 25,
1963. Counsel here could not have anticipated the precise standard
we announced in New York Times. In the Bryant lawsuit and,
of course, in the New York Times case itself, counsel did,
however, raise general First Amendment defenses. No reference
whatever to the First Amendment was made by defense counsel in the
trial of this case.

															[ Footnote 2/6 ]

															Webster's New International Dictionary (2d ed., unabr.), p.
1606, reports the source of the term "muckrake" as follows:

															"On April 14, 1906, President Roosevelt delivered a speech in
which he used the term muckrake in attacking the practice of making
sweeping and unjust charges of corruption against public men and
corporations. . . ."

															Roget's International Thesaurus § 934(3) lists the following as
synonyms: muckrake, throw mud at, throw or fling dirt at, drag
through the mud and bespatter.

															MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
concurring in the result in No. 150, and dissenting in No. 37.

															I concur in reversal of the judgment in No. 150, Associated
Press v. Walker, based on the grounds and reasons stated in
Parts I and II of THE CHIEF JUSTICE's opinion. I do this, however,
as in Time, Inc. v. Hill, 385 U.
S. 374 , 385 U. S.
398 ,

															"in order for the Court to be able at this time to agree on [a
disposition of] this important case based on the prevailing
constitutional doctrine expressed in New York Times Co. v.
Sullivan, 376 U. S. 254 . [THE CHIEF
JUSTICE's] . . . opinion [would decide] the case in accordance with
this doctrine, to which the majority adhere. In agreeing to . . .
[that] opinion, I do not recede from any of the views I have
previously expressed about the much wider press and speech freedoms
I think the First and Fourteenth Amendments were designed to grant
to the people of the Nation. See, e.g., New York Times Co
. v. Sullivan, 376 U.S. at 376 U. S.
293 ( concurring opinion); Rosenblatt v. Baer, 383 U. S.
75 , 383 U. S. 94 (concurring and
dissenting opinion)."

															I would reverse the judgment in No. 37 for the reasons given in
my concurring opinion in New York Times Co. v. Page 388 U. S. 171 Sullivan, 376 U. S. 254 , 376 U. S. 293 ,
and my concurring and dissenting opinion in Rosenblatt v.
Baer, 383 U. S. 75 , 383 U. S. 94 ,
but wish to add a few words.

															These cases illustrate, I think, the accuracy of my prior
predictions that the New York Times constitutional rule
concerning libel is wholly inadequate to save the press from being
destroyed by libel judgments. Here, the Court reverses the case of Associated Press v. Walker, but affirms the judgment of Curtis Publishing Co. v. Butts. The main reason for this
quite contradictory action, so far as I can determine, is that the
Court looks at the facts in both cases as though it were a jury,
and reaches the conclusion that the Saturday Evening Post, in
writing about Butts, was so abusive that its article is more of a
libel at the constitutional level than is the one by the Associated
Press. That seems a strange way to erect a constitutional standard
for libel cases. If this precedent is followed, it means that we
must, in all libel cases hereafter, weigh the facts and hold that
all papers and magazines guilty of gross writing or reporting are
constitutionally liable, while they are not if the quality of the
reporting is approved by a majority of us. In the final analysis,
what we do in these circumstances is to review the factual
questions in cases decided by juries -- a review which is a flat
violation of the Seventh Amendment.

															It strikes me that the Court is getting itself in the same
quagmire in the field of libel in which it is now helplessly
struggling in the field of obscenity. No one, including this Court,
can know what is and what is not constitutionally obscene or
libelous under this Court's rulings. Today, the Court will not give
the First Amendment its natural and obvious meaning by holding that
a law which seriously menaces the very life of press freedom
violates the First Amendment. In fact, the Court is suggesting
various experimental expedients in libel cases, Page 388 U. S. 172 all of which boil down to a determination of how offensive to
this Court a particular libel judgment may be, either because of
its immense size or because the Court does not like the way an
alleged libelee was treated. Again, I suggest ( see Time, Inc.
v. Hill, 385 U. S. 374 , 385 U. S. 399 )
that we are rapidly but surely getting ourselves in the dilemma we
found ourselves in when we were compelled to overrule the
ill-starred case of Betts v. Brady, 316 U.
S. 455 ,* in order that the state courts of the country
might be able to determine with some degree of certainty when an
indigent person was entitled to the benefit of a lawyer and avoid
the spawning of hundreds of habeas corpus cases that finally raised
questions that a lawyer could and would have raised at the
trial.

															I think it is time for this Court to abandon New York Times
Co. v. Sullivan and adopt the rule to the effect that the
First Amendment was intended to leave the press free from the
harassment of libel judgments.

															*Gideon v. Wainwright, 372 U. S. 335 .

															MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE joins,
concurring in the result in No. 150, and dissenting in No. 37.

															I join-Parts I and II of the opinion of THE CHIEF JUSTICE and
the disposition in No. 150, Associated Press v.
Walker. In No. 37, Curtis Publishing Co. v. Butts, insofar as
THE CHIEF JUSTICE's opinion demonstrates that the evidence
unmistakably would support a judgment for Butts under the New
York Times standard, I agree. I would, however, remand for a
new trial, since the charge to the jury did not comport with that
standard. [ Footnote 3/1 ] The charge
on compensatory damages directed that the jury find Page 388 U. S. 173 liability on a finding of mere falsehood. And the trial court
stated that punitive damages might be awarded on a finding of
"actual malice," which it defined to encompass "the notion of ill
will, spite, hatred and an intent to injure one," and also to
denote "a wanton or reckless indifference or culpable negligence
with regard to the rights of others." The court detailed some
factors the jury could consider in applying this standard. It said,
for example, that "[a] publication may be so extravagant in its
denunciation and so vituperative in its character as to justify an
inference of malice," and that

															"proof that the plaintiff did demand a retraction, but that the
defendant failed to retract the article, may be considered by you
on the question of punitive damages."

															But

															"[d]ebate on public issues will not be uninhibited if the
speaker must run the risk that it will be proved in court that he
spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and
the ascertainment of truth." Garrison v. Louisiana, 379 U. S.
64 , 379 U. S. 73 .
The "good motives" of the publisher can be no more relevant in the
context of "public men" than in the context of criticism of "public
officials." See Garrison, supra. The court added that the
Post could show in mitigation of punitive damages that "it in good
faith relied upon certain matters which had come to its attention."
This makes crystal clear that the standard announced authorized the
jury to award punitive damages even though it found that the Post
had in good faith relied on matters which had come to its
attention. The charge undoubtedly fails to comport with New
York Times. [ Footnote 3/2 ] Page 388 U. S. 174 That the evidence might support a verdict under New York
Times cannot justify our taking from the jury the function of
determining, under proper instructions, whether the New York
Times standard has been met. The extent of this Court's role
in reviewing the facts, in a case such as this, is to ascertain
whether there is evidence by which a jury could reasonably find
liability under the constitutionally required instructions. See
New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S.
284 -292; Time, Inc. v. Hill, 385 U.
S. 374 , 385 U. S.
391 -394. When, as in this case, such evidence appears,
the proper disposition in this federal case is to reverse and
remand with direction for a new trial. See Time, Inc. v. Hill,
supra. [ Footnote 3/1 ]

															For the reasons expressed in the opinion of MR. JUSTICE HARLAN,
I agree that petitioner did not waive his contentions under New
York Time.

															[ Footnote 3/2 ]

															The statement by the trial court that "[m]alice also denotes a
wanton or reckless indifference or culpable negligence with regard
to the rights of others" could reasonably have been regarded by the
jury to relate not to the truth or falsity of the matter, but to
the Post's attitude toward Butts' reputation, akin to the spite and
ill will in which terms the court had just defined "malice." See Time Inc. v. Hill, 385 U. S. 374 , 385 U. S. 396 ,
n. 12.