10 Unprotected Categories: Defamation and other Torts

Developing the Post-Sullivan Legal Regime

As the first case in a new legal issue area, Sullivan left many questions unanswered. Perhaps most importantly, it wasn’t clear when the Sullivan rule applied. Elected politicians, at least, seemed implicated by the ruling. What about unelected public officials, such as members of the presidential cabinet? Former politicians? Influential political figures who had no formal role in the government? Well-known figures such as Elon Musk or Bill Gates? Movie stars? Well-known serial killers? Sullivan did not say.

Over the following decade, the Court struggled to properly define Sullivan’s limits, a process complicated by the addition of President Nixon’s appointees, some of whom thought Sullivan had gone too far in limiting the ability of public figures to recover damages for defamation. One key point of disagreement was whether Sullivan should apply to a particular type of plaintiff (a public figure, for example), or particular types of speech, such as speech about “public affairs.” With the Court divided on both the appropriate application and the appropriate balance between protecting the media and protecting defamation victims, the patchwork of cases that followed created more confusion than clarity.

In Gertz v. Robert Welch, a bare majority of the Court agreed that the Sullivan rule should apply to “public figures” and provided a definition for that term. The Court also reaffirmed that strict liability standards were unconstitutional and applied additional restrictions on how punitive damages could be awarded. As you read the dissents note that two justices think the decision goes too far in trying to protect free speech, while two other justices feel it does not go far enough.

Gertz v. Robert Welch

418 U.S. 323 (1974)

Facts: Gertz was a Chicago attorney retained by a family considering a wrongful death lawsuit against the city for the shooting of their son by a police officer (who had been convicted in criminal court for the murder). The John Birch Society (for whom Welch published) attacked the conviction as a communist conspiracy to undermine law enforcement and libeled Gertz, claiming he had a criminal record and belonged or had belonged to various Communist organizations.

Gertz sued for damages under libel law; lower federal courts held that he was a public figure under Sullivan and would have to meet the actual malice test to recover damages. Gertz appealed to the Supreme Court.

Question: Is Gertz a public figure under Sullivan and other cases?

Vote: No, (5-4)

For the Court: Justice Powell

Concurring opinion: Justice Blackmun

Dissenting opinion: Justice Burger

Dissenting opinion: Justice Douglas

Dissenting opinion: Justice Brennan

Dissenting opinion: Justice White

JUSTICE POWELL delivered the opinion of the Court.

This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort…

I

In 1968, a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio.

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

In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner’s inquest into the boy’s death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner’s remote connection with the prosecution of Nuccio, respondent’s magazine portrayed him as an architect of the “frame-up.” According to the article, the police file on petitioner took “a big, Irish cop to lift.” The article stated that petitioner had been an official of the “Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government.”

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

These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a “Leninist” or a “Communist-fronter.” And he had never been a member of the “Marxist League for Industrial Democracy” or the “Intercollegiate Socialist Society.”

The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had “conducted extensive research into the Richard Nuccio Case.” And he included in the article a photograph of petitioner and wrote the caption that appeared under it: “Elmer Gertz of Red Guild harasses Nuccio.” Respondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago.

Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen…

After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation. It asserted that petitioner was a public official or a public figure, and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan (1964). Under this rule, respondent would escape liability unless petitioner could prove publication of defamatory falsehood “with ‘actual malice‘ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”  Respondent claimed that petitioner could not make such a showing…

After all the evidence had been presented but before submission of the case to the jury, the [district] court ruled, in effect, that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent…

Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent’s contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein…

Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court’s determination that petitioner was not a public figure, it did not overturn that finding. It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest…

The Court of Appeals therefore affirmed. For the reasons stated below, we reverse.

II

The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom v. Metromedia, Inc. (1971) … but no majority could agree on a controlling rationale… One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation…

III

We begin with the common ground. Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire (1942).

Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties…

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

The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation… Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.

The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as JUSTICE STEWART has reminded us, the individual’s right to the protection of his own good name “reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.”

Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury…

In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that “breathing space” essential to their fruitful exercise…

The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly, many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgment of the state law right to compensation for wrongful hurt to one’s reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures.

We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them…

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

More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case…

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

No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an “influential role in ordering society.” He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.

For these reasons, we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual…

We hold that, so long as they do not impose liability without fault [strict liability], the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual…

IV

… But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth…

It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury…

We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship … In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.

V

Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but, at the time of publication, he had never held any remunerative governmental position. Respondent admits this, but argues that petitioner’s appearance at the coroner’s inquest rendered him a “de facto public official.” Our cases recognize no such concept. Respondent’s suggestion would sweep all lawyers under the New York Times rule as officers of the court, and distort the plain meaning of the “public official” category beyond all recognition. We decline to follow it.

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

Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen’s participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life…

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

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

JUSTICE BLACKMUN, concurring.

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

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

2. The Court was sadly fractionated in Rosenbloom. A result of that kind inevitably leads to uncertainty. I feel that it is of profound importance for the Court to come to rest in the defamation area and to have a clearly defined majority position that eliminates the unsureness engendered by Rosenbloom’s diversity. If my vote were not needed to create a majority, I would adhere to my prior view. A definitive ruling, however, is paramount.

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

CHIEF JUSTICE BURGER, dissenting.

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

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

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

JUSTICE DOUGLAS, dissenting.

The Court describes this case as a return to the struggle of “defin[ing] the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.” … I would suggest that the struggle is a quite hopeless one, for, in light of the command of the First Amendment, no “accommodation” of its freedoms can be “proper” except those made by the Framers themselves…

I have stated before my view that the First Amendment would bar Congress from passing any libel law. This was the view held by Thomas Jefferson, and it is one Congress has never challenged through enactment of a civil libel statute. The sole congressional attempt at this variety of First Amendment muzzle was in the Sedition Act of 1798 — criminal libel act never tested in this Court and one which expired, by its terms, three years after enactment… As President, Thomas Jefferson pardoned those who were convicted under the Act…

… Continued recognition of the possibility of state libel suits for public discussion of public issues leaves the freedom of speech honored by the Fourteenth Amendment a diluted version of First Amendment protection…

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

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

JUSTICE BRENNAN, dissenting.

I agree with the conclusion … that, at the time of publication of respondent’s article, petitioner could not properly have been viewed as either a “public official” or “public figure”; instead, respondent’s article, dealing with an alleged conspiracy to discredit local police forces, concerned petitioner’s purported involvement in “an event of public or general interest.” I cannot agree, however, that free and robust debate– so essential to the proper functioning of our system of government — is permitted adequate “breathing space,” when, as the Court holds, the States may impose all but strict liability for defamation if the defamed party is a private person…

… Matters of public or general interest do not “suddenly become less so merely because a private individual is involved, or because, in some sense, the individual did not voluntarily choose to become involved.”

Although acknowledging that First Amendment values are of no less significance when media reports concern private persons’ involvement in matters of public concern, the Court refuses to provide, in such cases, the same level of constitutional protection that has been afforded the media in the context of defamation of public persons…

We recognized in New York Times Co. v. Sullivan that a rule requiring a critic of official conduct to guarantee the truth of all of his factual contentions would inevitably lead to self-censorship when publishers, fearful of being unable to prove truth or unable to bear the expense of attempting to do so, simply eschewed printing controversial articles. Adoption, by many States, of a reasonable care standard in cases where private individuals are involved in matters of public interest — the probable result of today’s decision — will likewise lead to self-censorship, since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable care [or negligence] standard is “elusive”; it saddles the press with “the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.”

The Court does not discount altogether the danger that jurors will punish for the expression of unpopular opinions… But plainly a jury’s latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court’s broad-ranging examples of “actual injury,” including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doing so.

… I reject the argument that my Rosenbloom view improperly commits to judges the task of determining what is and what is not an issue of “general or public interest.” I noted in Rosenbloom that performance of this task would not always be easy… [but] the public interest is necessarily broad; any residual self-censorship that may result from the uncertain contours of the “general or public interest” concept should be of far less concern to publishers and broadcasters than that occasioned by state laws imposing liability for negligent falsehood…

JUSTICE WHITE, dissenting.

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

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

I assume these sweeping changes will be popular with the press, but this is not the road to salvation for a court of law. As I see it, there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves. I do not suggest that the decision is illegitimate or beyond the bounds of judicial review, but it is an ill-considered exercise of the power entrusted to this Court…

The impact of today’s decision on the traditional law of libel is immediately obvious and indisputable. No longer will the plaintiff be able to rest his case with proof of a libel defamatory on its face or proof of a slander historically actionable per se. In addition, he must prove some further degree of culpable conduct on the part of the publisher, such as intentional or reckless falsehood or negligence… The Court rejects the judgment of experience that some publications are so inherently capable of injury, and actual injury so difficult to prove, that the risk of falsehood should be borne by the publisher, not the victim. Plainly, with the additional burden on the plaintiff of proving negligence or other fault, it will be exceedingly difficult, perhaps impossible, for him to vindicate his reputation interest by securing a judgment for nominal damages, the practical effect of such a judgment being a judicial declaration that the publication was indeed false. Under the new rule, the plaintiff can lose not because the statement is true, but because it was not negligently made…

It is difficult for me to understand why the ordinary citizen should himself carry the risk of damage and suffer the injury in order to vindicate First Amendment values by protecting the press and others from liability for circulating false information…

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

Gertz is best viewed as a compromise position between those who feel its rule does not go far enough in protecting the media from defamation lawsuits, and those who feel it goes too far.

The Court would continue to tinker with this balance going forward. For example, in Dun & Bradstreet v. Greenmoss (1985), a construction contractor (Greenmoss) sued a credit reporter (Dun & Bradstreet) for falsely reporting that it had filed for bankruptcy. At trial, the judge did not clarify the standard for punitive damages (which would require actual malice under Gertz), leading Dun & Bradstreet to appeal the verdict. Ultimately the Supreme Court would complicate defamation law further in this case by reintroducing Justice Brennan’s distinctions between speech on public matters and speech of private concern. Speech about public matters, the Court held, would continue to require actual malice for punitive damages, as ruled in Gertz. For private plaintiffs suing about matters of private concern—such as the credit report at issue here—only negligence would be required for punitive damages.

What, exactly, was the standard for determining whether speech is of public concern? Justice Powell, borrowing language from another case, offers a definition and applies it to the facts of the case:

The only remaining issue is whether petitioner’s credit report involved a matter of public concern. In a related context, we have held that

“[w]hether . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context . . . as revealed by the whole record.”

These factors indicate that petitioner’s credit report concerns no public issue. It was speech solely in the individual interest of the speaker and its specific business audience. This particular interest warrants no special protection when — as in this case the speech is wholly false and clearly damaging to the victim’s business reputation. Moreover, since the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any “strong interest in the free flow of commercial information.” There is simply no credible argument that this type of credit reporting requires special protection to ensure that “debate on public issues [will] be uninhibited, robust, and wide-open.”

The standards for libel and slander cases can thus be boiled down to the following:

1. The alleged defamation must include either a false statement of fact or be based on falsifiable factual foundations (i.e. “It’s my opinion he lied under oath”).
2. A public figure must meet actual malice to recover either actual or punitive damages.
3. A private figure need only meet negligence to recover actual damages.
4. A private figure will need to meet actual malice to recover punitive damages if the speech is of public concern, but only negligence if the speech is of private concern