The Price of Free Speech:
by
Who steals my purse steals trash;
‘tis something, nothing;
‘Twas mine, ‘tis his,
and has been slave to thousands. But he that filches from me my good name Robs me of that which not enriches him, And makes me poor, indeed.
Shakespeare,
Othello
Free speech is a cornerstone of American democracy, written, significantly, into the first of the 10 amendments that make up the Bill of Rights. The value of reputation has been recognized even longer, as the above quotation from Shakespeare shows. A continuing dilemma in our era remains: what happens when the right to free expression collides with a person’s interest in his standing in the community?
Freedom of speech, Justice Oliver Wendell Holmes intoned, “would not protect a man in falsely shouting fire in a theatre”; few would argue the point. But apart from such an obvious case, is the freedom of speech to be limited? Does it permit pelting one’s fellows with falsehoods? Can scurrility hide behind the First Amendment, its practitioners sniping away at the reputations of decent citizens? In the hurly-burly of open debate that is the hallmark of our democracy, is a man to be strictly accountable for the truth of his words? If he is, what becomes of opinion, caricature, satire, humor? The issues raised by these questions are not as clear as that posed by Holmes’ epigram, and the effort to resolve them has required a complex progress through Anglo-American legal history.
“Where there’s a wrong, there’s a remedy,” the ancient common law maxim ran, and for centuries before the American Revolution the law protected a man’s reputation from calumny by permitting suits for libel (if the defamatory words were written) or slander (if they were spoken).[i]
The damage done by words is peculiar, differing in important ways from the harm done by, say, breach of contract or an assault. We teach children that “sticks and stones may break my bones, but words can never hurt me”; the phrase may reduce the number of schoolyard fights, but it is a lie. Words can inflict grave harm, though the injury might be invisible, the extent indeterminate and the path and duration unknown and unknowable. Repair of the damage may be well-nigh impossible: “The truth never catches up with the lie.” The elusive nature of the damage done by libel led the law to develop special principles applicable only to such instances.
Before passing to a discussion of civil actions for libel and slander, a few words should be said about the political crime of seditious libel, widely prosecuted in England during the turbulent 16th, 17th and 18th centuries. Punishment for speech sprang from the monarch’s natural interest in self-preservation. Clearly, words critical of the king (or later the government) could undermine the sovereign’s strength. From this it was a short step to the logical — though to our ears foreign— proposition that “the greater the truth, the greater the libel,” for true words were recognized to be more dangerous than false. It is now generally agreed that the First Amendment was intended to outlaw prosecutions for seditious libel, leaving to the civil law the principle that truth is a complete defense to libel.
Common law defamation, as it existed at the time the Constitution was adopted, consisted merely of writing or saying injurious words. If such language were published (a term that included any statement or repetition), the law presumed malice on proof of injury. But, although it was said that malice was an element of libel, the harm done to the victim, not the evil intent of the speaker, lay at the heart of the action. Thus, mere negligence in expression, even words published with good faith belief in their truth, could be libelous.
Certain kinds of words were held to be by their very nature so harmful that injury was presumed from the publication of them. These forms of libel and slander per se included allegations of criminal conduct, loathsome disease, improper conduct of a business or unchastity in a woman (though not a man). In libel but not slander, the harm was generally considered to arise per se where the defamatory meaning was apparent on the face of the words, without reference to other facts. Where there was per se defamation, a plaintiff needed to show no more to recover at least nominal damages, because injury was held to arise from the fact of publication. This was the law’s response to the peculiar difficulty of demonstrating or valuing damage to reputation.
Once publication of defamatory words was proved, the defendant had the opportunity to show that the utterance was privileged, for instance that the words were true. Privileged communication (as that term applied in libel action) was a complete defense to the plaintiff’s claim.
Some of the unique characteristics of a libel case were illustrated in the famous 19th-century action between the painter James MacNeil Whistler and John Ruskin, a greatly respected art critic and professor. Ruskin reviewed a show in which several of the artist’s paintings appeared, and gave his opinion of the work by referring to “the Cockney impudence” of “a cockscomb [who asks 200 guineas for flinging a pot of paint in the public’s face.” Whistler sued and won a judgment for a farthing, one-quarter of a penny. The damages may have been nominal, but the effect of the verdict was not. Whistler, who loved publicity, got a great deal of it, while Ruskin ‘s career as a public man was ruined; he resigned his professorship and went into seclusion. This case demonstrates an important aspect of libel: just as the injury may be immeasurable, so vindication by judge and jury may be more important than monetary damages. Whistler was unusual among persons libeled, however, in that he benefited more from the publicity of the trial than Ruskin’s words had hurt him; in most cases the victim is never fully recompensed, in reputation or money.
Libel suits are intended to deter would-be practitioners of the art or trade of defamation; that, along with compensation for injury, is why the law permits them. But the availability of such suits may also deter people from expressing themselves on controversial subjects for fear of arousing litigation. Even at the time the Constitution was framed, common law recognized that libel suits would affect the way people chose to exercise the right of free speech. For instance, there is no reason why the truth should be a defense against libel. The kings of England were right: true words do hurt more than false ones, if only because they are more likely to be believed. Each of us knows, too, that there are times when etiquette, good taste or a desire for peaceful relationships suggest the use of a tactful lie. But as a society we believe it so important to encourage the truth that we will not permit recovery for the harm it causes, however great the scandal that results.
Truth, however, is not the only defining characteristic of protected speech. Even in the early years of the republic there were times when untrue words were protected, as in the course of legislative debate or an attorney’s presentation to a court. In such cases, truth took a back seat to the interests of free expression, because those interests demanded that there should be room to err. James Madison has been widely quoted: “Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than of the press;” his words apply as well to any spoken, written or printed expression.
The First Amendment wrote the right of free speech into our basic law. Its words are general, majestic and magisterial. In contrast, the common law privileges protected untruth only in specific situations. The broad principle of free expression necessarily conflicts with the right to recover for damage to reputation.
The potential collision between the First Amendment and libel laws did not become apparent for many years after the Constitution was written, and for a simple reason: when the Bill of Rights was adopted in 1791, its provisions applied only to the federal government. Thus, the First Amendment did not protect citizens against state intrusions on the rights of free speech and press (although state constitutions frequently embodied similar protections), and libel actions were primarily the province of the states.
The Fourteenth Amendment, adopted after the Civil War prohibited states from abridging the “privileges and immunities of citizens,” and also required the states to assure all citizens due process of law. More than half a century later, the Supreme Court held that this language made the First Amendment applicable to the states, thereby “incorporating” it through the Fourteenth. Thus, the stage was set for the Supreme Court to consider the effect of the First Amendment’s guarantees of free speech and press on state libel laws.
It was in Gitlow v. New York, decided in 1925, that the Supreme Court first ruled that the First Amendment applied to the states, although that case did not involve defamation. (Benjamin Gitlow was convicted of advocating the forceful overthrow of the government of New York.) In the years that followed, the Court did tackle some matters related to libel: in 1931 it struck down a state statute providing for prior restraint of publications found to be a nuisance; in 1952, in a case that seems retrograde today, it upheld a criminal group libel statute in Illinois.
For many years after the First Amendment was applicable to the states, the courts failed to acknowledge the conflict between free speech and remedies for defamation. Instead, jurists took refuge in a frequently-repeated dictum that libel is outside the First Amendment — an assertion that lives to this day. That convenient formulation begs the essential question: if we accept that some lies should be protected in the interests of free expression, how far does the Constitution reach to preclude the use of libel to punish— and by implication deter —speech?
Finally, in 1964, the Supreme Court reached this issue, in New York Times v. Sullivan. The plaintiff was one of the city commissioners of Montgomery, Alabama, in charge of the police department. He alleged that he was libeled, by implication, in the text of an advertisement supporting the civil rights movement, published in the Times. Certain statements in the article were admittedly false. An Alabama jury awarded damages of $500,000, an enormous sum at the time.
The Supreme Court reversed. It noted that under classic rules of libel, which place the burden of proving truth on the defendant, “critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’ The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.”
The Court then declared that the interests of free speech require that public officials may be limited to recovering for defamation of his official conduct only if he can show that the statements made were false and made with “actual malice,” which is to say with knowledge that the words were false or with reckless disregard of their truth or falsity. That kind of “actual malice” is sometimes known as “New York Times malice.” (Ironically, this standard, attached to the name of one of the nation’s most prestigious newspapers, may reward sloppy editing since mere carelessness would not constitute knowledge of falsity or reckless disregard for the truth.)
New York Times v. Sullivan illustrates a curious and little-noticed aspect of the relationship between libel and constitutional law. Mr. Sullivan was an individual whose right to obtain judgment against the newspaper was blocked on grounds that the First Amendment, establishing the nation’s interest in free and open debate, was more important than redressing any injury he might have suffered. In other kinds of cases involving the Bill of Rights, it is the individual who attempts to use the Constitution to deflect society’s attempt to harm him: e.g., Benjamin Gitlow’s futile attempt to avoid prosecution by raising the First Amendment as a shield; Ernesto Miranda’s case, successfully argued, that failure to tell him he could have a lawyer violated his right to counsel; or the Jehovah’s Witnesses’ defense on grounds of religious freedom (also successful) against a law requiring them to take the Pledge of Allegiance. In contrast, in cases involving libel and related issues, individuals often face constitutional claims that are frequently asserted by large institutions such as prominent media companies, on behalf of the public’s right to know and debate. This role-reversal may be no more than irony, but if so the irony is deepened by the Supreme Court’s reasoning that high standards should be imposed on public officials who seek to recover for libel, because the prominence of such persons gives them access to the press to air their versions of events and so reduces the likelihood that they will be harmed.
In 1967, in Time, Inc. v. Hill, the Court expanded the New York Times doctrine to include “matters of public interest,” i.e., items not restricted to government or civic affairs, thus recognizing that the First Amendment does not limit itself to political matters. The concept that there are certain matters that are of legitimate interest to the public (and, presumably, others that are not) is highly questionable — as in Justice Stanley Reed’s observation in an earlier case: “One man’s amusement teaches another’s doctrine” — and the difficulty inherent in trying to draw the distinction caused the idea to languish until 1985. The legacy of Time v. Hill was to create the concept of a “public figure,” a person who has been thrust into the limelight, voluntarily or otherwise. (The category was formalized in Curtis Publishing Co. v. Butts, decided the same year.) The Hills alleged that they were wrongly portrayed in an article in Life magazine which stated that a play then being performed was based on their experiences when they were held hostage by escaped convicts; in fact the play and the novel which preceded it had been fictionalized composites of the experiences of a number of people in similar situations, and the Hills’ experience had not included several of the most alarming incidents on which the magazine story was based. Here was a seemingly clear instance of private persons being thrust into public view without their consent, but on an issue which was of legitimate interest to the public. The Court held (questionably) that it did not have to decide whether a distinction should be made between persons who had become figures voluntarily and those whose notoriety was not sought. It decided that public figures, like public officials, would have to show that the misstatements had been made with “actual malice” in order to recover damages. (The Hills actually sued not for libel, but for invasion of privacy; however, the principles enunciated in their case have been widely attached to libel actions as well.)
Following Time, Inc. v. Hill, courts came to recognize still another category: a “limited-purpose” public figure — an individual whose role in the public eye is confined to one or a few subjects; such persons are not restricted to the test of New York Times if they are defamed on matters unrelated to their public-figure status, but are subject to that test if the libel is related to the issues on which the individual is a public figure. In some ways, this concept approaches the “public issue” test. The process of line-drawing in such cases can be excruciating: if a school principal is falsely accused of soliciting sex from a prostitute, does that relate to his status as guardian of the morality of the children placed in his care? Is he, then, foreclosed from recovering for libel unless he can meet the strenuous test of proving “actual malice”? No general rule can be formulated.
Restrictions on the right of public officials and public figures to recover may be hard on them —they have the same feelings as the rest of us — but to the dispassionate observer the status of such persons may make them hard to damage. As the press agent’s adage goes, “I don’t care what you say about me as long as you spell my name right.” And, as the Supreme Court has observed, such figures often have easy access to channels of communication through which they can answer their accusers.
It is the private person who is most vulnerable to libel. Not so well known as the public figure, his or her reputation may rest mainly in the opinions of a few people, and so be more likely to be damaged if only a small number believe the lie. He may be thrust into the limelight by the defamatory statement, thus first attracting public attention through publication of libelous words, which he will almost certainly be without the means to answer fully in the public prints.
On the other hand, claims on the basis of the First Amendment are much weaker where private persons are concerned than in the cases of public figures. Robust debate is hardly threatened by the libel claim of an ordinary person as it is in the case, for instance, of a government official who complains of criticism of his conduct in office. In the former case, the public interest is best served by close adherence to truth and there is little harm in penalizing falsity; in the latter situation, our interest in vigorous discussion of issues tolerates departures from truth where the bad faith of the speaker cannot be proved.
In 1974, in Gertz v. Robert Welch, Inc., the Supreme Court dealt with the relation between the First Amendment and the libel claim of a private person. The question before the Court was whether constitutional protection attached to the publication of defamatory material about an individual who is neither a public official nor a public figure; in H. L. Mencken’s categorization of “the great, the near-great and the near,” this plaintiff was the last.
Elmer Gertz, an attorney, was retained by the family of a youth who had been killed by a Chicago policeman. Illinois authorities prosecuted the officer, who was convicted of second-degree murder. Gertz’s function was to represent the family in a civil action against the policeman. The John Birch Society magazine, American Opinion, published an article alleging that the police officer had been the victim of a frame-up and accusing Gertz of being the architect; he was also accused of being a communist, and the article implied that he had a criminal record. The statements were false, but arguably touched on matters of interest to the public.
For the Court, Justice Lewis Powell began by stating that there is no constitutional value in false statements, because they do not advance society’s interest in uninhibited, robust and wide-open debate on public issues; however, he avoided the error of holding that such statements were outside the protection of the First Amendment, quoting Madison and New York Times v. Sullivan on the need to leave room for error lest expression of truth be deterred.
The opinion went on, however, to note that a balance should be struck between freedom of the press and the legitimate state interest underlying the law of libel, which, as Justice Potter Stewart had noted in an earlier case, “reflects no more than our basic concept of the essential dignity and worth of every human being.”
The Court held that states may determine the standards for imposing liability for defamation upon private persons, as long as they do not impose a standard of liability without fault; thus, although negligent misstatement could be sufficient for recovery, the old rule that the mere fact of publication would suffice was declared unconstitutional. The Court also declared that states may not permit the award of punitive damages — those damages which might be imposed independent of a showing of proven harm — unless “actual malice” is present. This holding was limited to cases involving matters of ‘‘public issues—thereby resurrecting the doctrine first raised in Time v. Hill.
Justice Byron White, in a long dissenting opinion in Gertz, argued that the Court had cut the props from under the traditional law of libel, gutting the concept of libel per se by requiring proof of culpable conduct in addition to the defamatory utterance. He suggested that words that are injurious on their face should put the publisher on notice of the injury that will result, and that the Constitution should not be held to require that defendants be freed from the burden of showing such words to be true or paying for the damages caused. White also expressed doubt that the Court’s rule was necessary to protect the press as it now exists.
Justice White’s spirited defense of the victims of falsehood is appealing, but the majority in Gertz probably struck the right balance between the needs of the First Amendment and the claims of libel plaintiffs. The difficulty of drawing lines between public and private issues makes the traditional rule, requiring the defendant to prove the truth of his statements, constitutionally untenable. White is on stronger ground in cases of libel per se, where the words may serve as their own warning, but the rule set out in Gertz should not, as a practical matter, place a serious obstacle on plaintiffs so defamed. A person wrongly accused of having AIDS, for instance, should have little difficulty proving “actual malice” if the author and publisher failed to check their sources with utmost care: the gravity of the allegation would lead any court or jury to impose such a burden on them. If, however, the defendants can show that they took every possible step to verify their facts, would not punishing them for the fortuity of untruth be likely to deter others from writing about an important subject?
The most recent substantial development in the constitutional law came in the 1986 case of Philadelphia Newspapers, Inc. v. Hepps in which a deeply divided Supreme Court declared that private persons defamed on matters of public concern must carry the burden of proving the falsity of the defendant’s speech. In so doing, the Court brought private plaintiffs quite close to the position in which public officials were placed in New York Times v. Sullivan, reversing the common law precept that it was up to the defendant to prove truth. The Court may thus have recognized, at least implicitly, that issues of free expression are present in almost every public utterance.
This last example points up a final truth about the relationship between the First Amendment and libel: any rule that encourages free expression will bring with it cases of persons damaged by that expression who will have no recourse. They are the people who pay the price for free speech.
A slightly different version of this article appeared in The Brandeis Review
©Jonathan Margolis, 1987