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Questioned As of: September 24, 2020 7:43 PM Z
Supreme Court of the United States January 6, 1964, Argued ; March 9, 1964, Decided * No. 39
Reporter 376 U.S. 254 *; 84 S. Ct. 710 **; 11 L. Ed. 2d 686 ***; 1964 U.S. LEXIS 1655 ****; 95 A.L.R.2d 1412; 1 Media L. Rep. 1527
NEW YORK TIMES CO. v. SULLIVAN
Prior History: [****1] CERTIORARI TO THE SUPREME COURT OF ALABAMA.
Disposition: 273 Ala. 656, 144 So. 2d 25 , reversed and remanded.
libel, advertisement, malice, retraction, newspaper, reputation, arrested, punitive, protest, safeguards, Sedition, campus, defamation, defamatory, malicious, half-million-dollar, indictment, repression, padlocked, utterance, vigorous, abridge, obscene, assaulted, candidate, contempt, reckless, falsity, perjury, bombed
Procedural Posture Petitioner newspaper sought review of a decision by the Supreme Court of Alabama upholding a judgment awarding respondent damages in a civil libel action.
Overview
Petitioner newspaper sought review of a decision upholding a judgment awarding respondent damages in a civil libel action. The Court held that the rule of law applied by the Alabama courts was constitutionally deficient for failure to provide petitioner the safeguards for freedom of speech and of the press that were guaranteed by the First and Fourteenth Amendments in
a libel action brought by a public official against critics of his official conduct. The Court held that petitioner's constitutional guarantees required a rule that prohibited a public official from recovering damages for a defamatory falsehood relating to the public official's official conduct unless the official proved that the statement was made with actual malice. The Court defined actual malice as knowledge that the defamatory statement was false or made with reckless disregard of whether it was false or not. Further, the Court held that under the proper safeguards, the evidence presented against petitioner was constitutionally insufficient to support the judgment for respondent. Respondent presented no evidence to show petitioner was aware of erroneous statements or was in any way reckless in that regard.
Outcome The Court reversed the judgment and remanded the case.
Civil Procedure > Remedies > Damages > Punitive Damages
Commercial Law (UCC) > ... > Application & Construction > Remedies > Damages
Torts > ... > Defamation > Remedies > Damages
Torts > Intentional Torts > Defamation > Libel
Torts > ... > Defamation > Remedies > Retractions
HN1 [ ] Damages, Punitive Damages
Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
HN6 [ ] Damages, Punitive Damages
Once libel per se has been established, under Alabama law the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. a defendant's privilege of fair comment for expressions of opinion depends on the truth of the facts upon which the comment is based. Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight.
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Fighting Words
Torts > ... > Defamation > Public Figures > Voluntary Public Figures
Constitutional Law > ... > Freedom of Speech > Defamation > General Overview
Constitutional Law > ... > Freedom of Speech > Defamation > Public Figures
Torts > Intentional Torts > Defamation > Libel
HN7 [ ] Freedom of Speech, Fighting Words
The Constitution does not protect libelous publications.
Constitutional Law > ... > Freedom of Speech > Commercial Speech > General Overview
Torts > ... > Defenses > Privileges > Constitutional Privileges
Constitutional Law > Bill of Rights > Fundamental Freedoms > General Overview
Constitutional Law > ... > Freedom of Speech > Defamation > General Overview
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Obscenity
Criminal Law & Procedure > ... > Disruptive Conduct > Riot > General Overview
Torts > Intentional Torts > Defamation > Libel
HN8 [ ] Freedom of Speech, Commercial Speech
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in the Supreme Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.
Constitutional Law > ... > Freedom of Speech > Commercial Speech > General Overview
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope
HN9 [ ] Freedom of Speech, Commercial Speech
Debate on public issues should be uninhibited, robust, and wide-open, and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope
HN10 [ ] Fundamental Freedoms, Freedom of Speech
Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth -- whether administered by judges, juries, or administrative officials -- and especially one that puts the burden of proving truth on the speaker.
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope
HN11 [ ] Fundamental Freedoms, Freedom of Speech
First Amendment protection does not turn upon the
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
truth, popularity, or social utility of the ideas and beliefs which are offered.
Constitutional Law > ... > Freedom of Speech > Free Press > General Overview
HN12 [ ] Freedom of Speech, Free Press
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.
Constitutional Law > ... > Fundamental Freedoms > Freedom of Religion > Free Exercise of Religion
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Political Speech
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope
HN13 [ ] Freedom of Religion, Free Exercise of Religion
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope
HN14 [ ] Fundamental Freedoms, Freedom of Speech
Erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the breathing space that they need to survive.
Civil Procedure > Sanctions > Contempt > General Overview
Constitutional Law > ... > Freedom of Speech > Defamation > General Overview
Governments > Local Governments > Administrative Boards
HN15 [ ] Sanctions, Contempt
Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, the Supreme Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. This is true even though the utterance contains half-truths and misinformation. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. If judges are to be treated as men of fortitude, able to thrive in a hardy climate, surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.
Constitutional Law > ... > Freedom of Speech > Defamation > General Overview
Criminal Law & Procedure > ... > Miscellaneous Offenses > Espionage & Treason > Elements
Constitutional Law > Bill of Rights > Fundamental Freedoms > General Overview
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope
HN16 [ ] Freedom of Speech, Defamation
If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate.
Constitutional Law > Bill of Rights > Fundamental Freedoms > General Overview
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
Speech > Defamation > General Overview
Torts > ... > Defenses > Privileges > General Overview
Torts > ... > Defenses > Privileges > Qualified Privileges
Torts > ... > Defamation > Public Figures > Political Candidates
HN22 [ ] Privileges, Constitutional Privileges
Any one claiming to be defamed by a communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.
Civil Procedure > Remedies > Damages > Punitive Damages
Constitutional Law > ... > Freedom of Speech > Defamation > Public Figures
Torts > ... > Defamation > Public Figures > Voluntary Public Figures
Constitutional Law > ... > Freedom of Speech > Defamation > General Overview
Evidence > Inferences & Presumptions > General Overview
Evidence > Inferences & Presumptions > Presumptions > Conflicting Presumptions
Torts > Remedies > Damages > General Overview
Torts > ... > Defenses > Privileges > Constitutional Privileges
Torts > ... > Defamation > Public Figures > Actual Malice
HN23 [ ] Damages, Punitive Damages
The Constitution delimits a state's power to award damages for libel in actions brought by public officials against critics of their official conduct. 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. The power to create presumptions is not a means of escape from constitutional restrictions.
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > Scope
Constitutional Law > Bill of Rights > Fundamental Freedoms > General Overview
Constitutional Law > ... > Fundamental Freedoms > Freedom of Speech > General Overview
Constitutional Law > Substantive Due Process > Scope
HN24 [ ] Fundamental Freedoms, Freedom of Speech
The Supreme Court's duty is not limited to the elaboration of constitutional principles; the Court must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. Particularly where the question is one of alleged trespass across the line between speech unconditionally guaranteed and speech which may legitimately be regulated. In cases where that line must be drawn, the rule is that the Court will examine the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment , as adopted by the Due Process Clause of the Fourteenth Amendment protect.
Constitutional Law > Bill of Rights > Fundamental Rights > Trial by Jury in Civil Actions
HN25 [ ] Fundamental Rights, Trial by Jury in Civil Actions
See U.S. Const. amend. VII.
Civil Procedure > ... > Jurisdiction on Certiorari > Considerations Governing Review > State Court Decisions
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
Constitutional Law > Bill of Rights > Fundamental Rights > Trial by Jury in Civil Actions
HN26 [ ] Considerations Governing Review, State Court Decisions
The U.S. Const. amend. VII ban on re-examination of facts does not preclude the Court from determining whether governing rules of federal law have been properly applied to the facts. The Supreme Court will review the finding of facts by a State court where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts.
Constitutional Law > ... > Freedom of Speech > Defamation > General Overview
Torts > ... > Defamation > Defenses > Fair Comment & Opinion
Constitutional Law > Substantive Due Process > Scope
Torts > ... > Defenses > Privileges > Constitutional Privileges
HN27 [ ] Freedom of Speech, Defamation
Since the Fourteenth Amendment requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expression of opinion based upon privileged, as well as true, statements of fact. Both defenses are of course defeasible if the public official proves actual malice.
Summary
The present action for libel was brought in the Circuit Court of Montgomery County, Alabama, by a city commissioner of public affairs whose duties included the supervision of the police department; the action was brought against the New York Times for publication of a
paid advertisement describing the maltreatment in the city of Negro students protesting segregation, and against four individuals whose names, among others, appeared in the advertisement. The jury awarded plaintiff damages of $ 500,000 against all defendants, and the judgment on the verdict was affirmed by the Supreme Court of Alabama (273 Ala 656, 144 So 2d 25 ) on the grounds that the statements in the advertisement were libelous per se, false, and not privileged, and that the evidence showed malice on the part of the newspaper; the defendants' constitutional objections were rejected on the ground that the First Amendment does not protect libelous publications.
On writs of certiorari, the Supreme Court of the United States reversed the judgment below and remanded the case to the Alabama Supreme Court. In an opinion by Brennan, J., expressing the views of six members of the Court, it was held that (1) the rule of law applied by the Alabama courts was constitutionally deficient for failure to provide the safeguards for freedom of speech and press that are required by the constitutional guaranty in a libel action brought by a public official against critics of his official conduct, and in particular, for failure to provide a qualified privilege for honest misstatements of fact, defeasible only upon a showing of actual malice; and (2) under the proper standards the evidence presented in the case was constitutionally insufficient to support the judgment for plaintiff.
Black, J., joined by Douglas, J., and Goldberg, J., joined by Douglas, J., concurred in the result in separate opinions. The concurring opinions expressed the view that the constitutional guaranty of free speech and press afforded the defendants an absolute, unconditional privilege to publish their criticism of official conduct.
CONSTITUTIONAL LAW §927.5 > freedom of speech and press -- attack on public officials -- > Headnote: LEdHN[1] [ ] [1]
State rules of law governing a libel action brought by a public official against critics of his official conduct are constitutionally deficient where these rules fail to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in such an action, and evidence disregarding the proper safeguards is constitutionally
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
CONSTITUTIONAL LAW §925 > freedom of speech and press -- public questions -- > Headnote: LEdHN[9] [ ] [9]
Freedom of expression upon public questions is secured by the First Amendment.
CONSTITUTIONAL LAW §925 > freedom of speech and press -- > Headnote: LEdHN[10] [ ] [10]
The protection given free speech and press by the Federal Constitution was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.
CONSTITUTIONAL LAW §925 > freedom of speech --
Headnote: LEdHN[11] [ ] [11]
It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for vigorous advocacy no less than abstract discussion.
CONSTITUTIONAL LAW §927 > freedom of speech -- attack on government and public officials -- > Headnote: LEdHN[12] [ ] [12]
The First Amendment requires that debate on public issues should be uninhibited, robust, and wide open, and such debate may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
CONSTITUTIONAL LAW §927.5 > CONSTITUTIONAL LAW §930 > freedom of speech -- attack on public official -- truth of statements -- > Headnote: LEdHN[13] [ ] [13]
An advertisement published in a newspaper describing
the maltreatment in an Alabama city of Negro students protesting segregation qualifies for the First Amendment's protection and does not forfeit that protection merely because of the falsity of some of its factual statements and its alleged defamation of a city official; the First Amendment does not recognize an exception for any test of truth, whether administered by judges, juries, or administrative officials, and especially not one that puts the burden of proving truth on the speaker.
CONSTITUTIONAL LAW §925 > freedom of speech --
Headnote: LEdHN[14] [ ] [14]
The protection of the constitutional guaranty of freedom of speech and press does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered.
CONSTITUTIONAL LAW §927.5 > freedom of speech -- attack on public officials -- > Headnote: LEdHN[15] [ ] [15]
Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error; criticism of official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes official reputations.
CONSTITUTIONAL LAW §927.5 > attack on official conduct -
Headnote:
LEdHN[16] [ ] [16]
Since neither factual error nor defamatory content suffices to remove the protection of the constitutional guaranty of freedom of speech and press from criticism of official conduct, the combination of the two elements is no less inadequate.
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
CONSTITUTIONAL LAW §925.5 > freedom of speech and press -- applicability to states -- > Headnote: LEdHN[17] [ ] [17]
The Fourteenth Amendment makes the First Amendment applicable to the states.
CONSTITUTIONAL LAW §930 > freedom of speech -- libel --
Headnote: LEdHN[18] [ ] [18]
What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.
CONSTITUTIONAL LAW §930 > freedom of speech -- libel -- defense of truth -- > Headnote: LEdHN[19] [ ] [19]
A state law of civil libel which infringes the constitutional guaranty of freedom of speech and press is not saved by its allowance of the defense of truth.
CONSTITUTIONAL LAW §927.5 > attack on public officials -- necessity of actual malice -- > Headnote: LEdHN[20] [ ] [20]
The constitutional guaranty of freedom of speech and press 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; such a qualified privilege of honest mistake of fact is required by the First and Fourteenth Amendments.
CONSTITUTIONAL LAW §927.5 > freedom of speech -- attack on public officials -- presumption of malice --
Headnote: LEdHN[21] [ ] [21]
A presumption of malice where general damages in a libel action are concerned is, as applied to a libel action brought by a public official against critics of his official conduct, inconsistent with the constitutional guaranty of freedom of speech and press, which affords the defendant a qualified privilege of honest mistake.
CONSTITUTIONAL LAW §829 > presumptions --
Headnote: LEdHN[22] [ ] [22]
The power of the legislature to create presumptions is not a means of escape from constitutional restrictions.
APPEAL §1641 > reversal -- uncertainty of verdict --
Headnote: LEdHN[23] [ ] [23]
A state judgment affirming a judgment for a public official in his libel action against critics of his official conduct must be reversed by the United States Supreme Court where state law, inconsistent with the requirement of the constitutional guaranty of freedom of speech and press, presumes malice insofar as general damages are concerned, the trial judge did not instruct the jury to differentiate between general and punitive damages, and in view of the general verdict returned by the jury it is impossible to know whether the verdict was wholly an award of one or the other.
APPEAL §745 > from state court -- libel action of public official -- review of evidence -- > Headnote: LEdHN[24] [ ] [24]
Considerations of effective judicial administration require the United State Supreme Court to review the evidence in the record for the purpose of determining whether it could constitutionally support a judgment for a public official in his state court libel action against critics of his official conduct, where the judgment is reversed on the ground that the state law applied violates the constitutional guaranty of freedom of speech and press, and the official may seek a new trial.
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
where his opinion was at least a reasonable one, and there was no evidence to impeach his good faith.
EVIDENCE §174 > libel -- inference of malice -- > Headnote: LEdHN[32] [ ] [32]
In a libel action brought in a state court by a public official against a newspaper for publication of an advertisement describing the maltreatment in an Alabama city of Negro students protesting segregation, the newspaper's failure to retract upon plaintiff's demand is not adequate evidence of actual malice for constitutional purposes, even though the newspaper later retracted upon the demand of the governor of Alabama.
EVIDENCE §175 > libel against newspaper -- inference of malice -- > Headnote: LEdHN[33] [ ] [33]
In a libel action brought in a state court by a public official against a newspaper for publication of an advertisement describing the maltreatment in an Alabama city of Negro students protesting segregation, evidence that the newspaper published the advertisement without checking its accuracy against the news stories in its own files is not adequate evidence of actual malice for constitutional purposes, where the record shows that the employees of the newspaper having responsibility for the publication of the advertisement relied upon their knowledge of the good reputation of many of the signers of the advertisement and upon a letter from a person known to them as a responsible individual, certifying that the use of the names of the signers was authorized; evidence supporting a finding of negligence in failing to discover the misstatements in the advertisement is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.
EVIDENCE §913 > libel -- identifying defamed person --
Headnote: LEdHN[34] [ ] [34]
In a libel action brought in a state court by a city commissioner of public affairs against a newspaper for publication of an advertisement describing the maltreatment in an Alabama city of Negro students protesting segregation, the evidence is constitutionally incapable of supporting the jury's finding that the allegedly libelous statements were made "of and concerning" plaintiff, where (1) there was no reference to the plaintiff in the advertisement either by name or official position, (2) the statements in the advertisement could not reasonably be read as accusing plaintiff of personal involvement in the acts described therein, (3) these statements, although possibly referring to the police, did not on their face make even an oblique reference to plaintiff as an individual, and (4) none of the plaintiff's witnesses suggested any basis for the belief that plaintiff himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the police department and thus bore official responsibility for police conduct.
LIBEL AND SLANDER §11 > libel of government and government officials -- > Headnote: LEdHN[35] [ ] [35]
Prosecution for libel on government has no place in the American system of jurisprudence, and this rule cannot be sidestepped by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed.
LIBEL AND SLANDER §21 > defamation of police commissioner -- fair comment -- > Headnote: LEdHN[36] [ ] [36]
In the absence of a showing of actual malice, recovery in a libel action brought by a police commissioner against critics of his ability to run the police department is precluded by the doctrine of fair comment.
CONSTITUTIONAL LAW §927.5 > free speech -- defamation of public official -- > Headnote: LEdHN[37] [ ] [37]
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
Since in an action brought by a public official against critics of his official conduct the Fourteenth Amendment requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expression of opinion based upon privileged, as well as true, statements of fact, both defenses being defeasible if the public official proves actual malice.
CONSTITUTIONAL LAW §927.5 > freedom of speech -- attack on government operations as attack on government officials -- > Headnote: LEdHN[38] [ ] [38]
The constitutional guaranty of freedom of speech and press precludes an otherwise impersonal attack on governmental operations from being treated as a libel of an official responsible for those operations.
Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department. The trial judge instructed the jury that such statements were "libelous per se," legal injury being implied without proof of actual damages, and that for the purpose of compensatory damages malice was presumed, so that such damages could be awarded against petitioners if the statements were found [****2] to have been published by them and to have related to respondent. As to punitive damages, the judge instructed that mere negligence was not evidence of actual malice and would not justify an award of punitive damages; he refused to instruct that actual intent to harm or recklessness had to be found before punitive damages could be awarded, or that a verdict for
respondent should differentiate between compensatory and punitive damages. The jury found for respondent and the State Supreme Court affirmed. Held : A State cannot under the First and Fourteenth Amendments award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. Pp. 265-292.
(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil action, is "state action" under the Fourteenth Amendment. P. 265.
(b) Expression does not lose constitutional protection to which it would otherwise be entitled because it appears in the form of a paid advertisement. Pp. 265-266.
(c) Factual error, content [****3] defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless "actual malice" -
(d) State court judgment entered upon a general verdict which does not differentiate between punitive damages, as to which under state law actual malice must be proved, and general damages, as to which it is "presumed," precludes any determination as to the basis of the verdict and requires reversal, where presumption of malice is inconsistent with federal constitutional requirements. P. 284.
(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it failed to support a finding that the statements were made with actual malice or that they related to respondent. Pp. 285-292.
Counsel: Herbert Wechsler argued the cause for petitioner in No. 39. With him on the brief were Herbert Brownell, Thomas F. Daly, Louis M. Loeb, T. Eric Embry, Marvin E. Frankel, Ronald S. Diana and Doris Wechsler.
William P. Rogers and Samuel R. Pierce, Jr. argued the cause for petitioners in No. 40. With Mr. Pierce [****4] on the brief were I. H. Wachtel, Charles S. Conley, Benjamin Spiegel, Raymond S. Harris, Harry H. Wachtel, Joseph B. Russell, David N. Brainin, Stephen J. Jelin and Charles B. Markham.
376 U.S. 254, *254; 84 S. Ct. 710, **710; 11 L. Ed. 2d 686, ***686; 1964 U.S. LEXIS 1655, ****
Sixth paragraph:
"Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They [****8] have [258]* assaulted his person. They have arrested him seven times -- for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with 'perjury' -- a felony under which they could imprison him for ten years.... "
Although neither of these statements mentions respondent by name, he contended that the word "police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of "ringing" the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. 2 As to the sixth paragraph, he contended that since arrests are ordinarily made by the police, the statement "They have arrested [Dr. King] seven times" would be read as referring to him; he further contended that the "They" who did the arresting would be equated with the "They" who committed the other described acts and with the "Southern violators." Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King's protests with [****9] [694]* "intimidation and violence," bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.
It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not "My [259]* Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested [****10] the expulsion, not by refusing to register, but by boycotting classes on [715]** a single
(^2) Respondent did not consider the charge of expelling the students to be applicable to him, since "that responsibility rests with the State Department of Education."
day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time "ring" the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four; and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.
On the premise that the charges in the sixth paragraph could be read as referring to him, respondent was allowed to prove that he had not participated in the events described. Although Dr. King's home had in fact been bombed twice when his wife and child were there, [****11] both of these occasions antedated respondent's tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who were. Three of Dr. King's four arrests took place before respondent became Commissioner. Although Dr. King had in fact been indicted (he was subsequently acquitted) on two counts of perjury, each of which carried a possible five- year sentence, respondent had nothing to do with procuring the indictment.
[260]* Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel. 3 One of his witnesses, a former employer, testified that if he had believed the statements, he doubted whether he "would want to be associated with anybody who would be a party to such things that are stated in that ad," and that he would not re-employ respondent if he believed "that he allowed the Police Department to do the things that the paper say he did." But neither this witness nor any of the others testified that he had actually believed the statements in their supposed reference to respondent.
[****12] The cost of the advertisement was
(^3) Approximately 394 copies of the edition of the Times containing the advertisement were circulated in Alabama. Of these, about 35 copies were distributed in Montgomery County. The total circulation of the Times for that day was approximately 650,000 copies.
376 U.S. 254, *257; 84 S. Ct. 710, **714; 11 L. Ed. 2d 686, ***693; 1964 U.S. LEXIS 1655, ****
approximately $ 4800, and it was [695]* published by the Times upon an order from a New York advertising agency acting for the signatory Committee. The agency submitted the advertisement with a letter from A. Philip Randolph, Chairman of the Committee, certifying that the persons whose names appeared on the advertisement had given their permission. Mr. Randolph was known to the Times' Advertising Acceptability Department as a responsible person, and in accepting the letter as sufficient proof of authorization it followed its established practice. There was testimony that the copy of the advertisement which accompanied the letter listed only the 64 names appearing under the text, and that the statement, "We in the south... warmly endorse this appeal," and the list of names thereunder, which included those of the individual petitioners, were subsequently added when the first proof of the advertisement was received. Each of the individual petitioners testified that he had not authorized the use of his name, and that he had been unaware of its use until receipt of respondent's demand for a retraction. The manager of the Advertising Acceptability [****13] [261]* Department testified that he had approved the advertisement for publication because he knew nothing to cause him to believe that anything in it was false, and because it [716]** bore the endorsement of "a number of people who are well known and whose reputation" he "had no reason to question." Neither he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times news stories relating to some of the described events or by any other means.
HN1 [ ] Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct unless he first makes a written demand for a public retraction and the defendant fails or refuses to comply. Alabama Code, Tit. 7, § 914. Respondent served such a demand upon each of the petitioners. None of the individual petitioners responded to the demand, primarily because each took the position that he had not authorized the use of his name on the advertisement and therefore had not published the statements that [****14] respondent alleged had libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a letter stating, among other things, that "we
... are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you." Respondent filed this suit a few days later without
answering the letter. The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with "grave misconduct and... improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of Alabama." When asked to explain why there had been a retraction for the Governor but not for respondent, the [262]* Secretary of the Times testified: "We did that because we didn't want anything that was published by The Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State and, furthermore, [****15] we had by that time learned more of the actual facts which the ad purported to recite and, [696]* finally, the ad did refer to the action of the State authorities and the Board of Education presumably of which the Governor is the ex-officio chairman... ." On the other hand, he testified that he did not think that "any of the language in there referred to Mr. Sullivan."
The trial judge submitted the case to the jury under instructions that the statements in the advertisement were "libelous per se" and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made "of and concerning" respondent. The jury was instructed that, because the statements were libelous per se , "the law... implies legal injury from the bare fact of publication itself," "falsity and malice are presumed," "general damages need not be alleged or proved but are presumed," and "punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown." An award of punitive damages -- as distinguished from "general" damages, which are compensatory in nature -- apparently [****16] requires proof of actual malice under Alabama law, and the judge charged that "mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages." He refused to charge, however, that the jury must be "convinced" of malice, in the sense of "actual intent" to harm or "gross negligence and recklessness," to make such an award, and he also refused to require that a verdict for respondent differentiate between compensatory and punitive damages. The judge rejected petitioners' contention [263]* that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments.
376 U.S. 254, *260; 84 S. Ct. 710, **715; 11 L. Ed. 2d 686, ***694; 1964 U.S. LEXIS 1655, ****
form, whether such power has in fact been exercised. See Ex parte Virginia, 100 U.S. 339, 346-347 ; [698] [****21]* American Federation of Labor v. Swing, 312 U.S. 321.
The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, "commercial" advertisement. The argument relies on Valentine v. Chrestensen, 316 U.S. 52 , where the Court held that a city ordinance forbidding street distribution of commercial and business advertising matter did not abridge the First Amendment freedoms, even as applied to a handbill having a commercial message on one side but a protest against certain official action on the other. The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the constitutional protection for "the freedom of communicating [266]* information and disseminating opinion"; its holding was based upon the factual conclusions that the handbill was "purely commercial advertising" and that the protest against official action had been added only to evade the ordinance.
LEdHN[5] [ ] [5] [HR6]* LEdHN[6] [ ] [6] [****22] The publication here was not a "commercial" advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. See N. A. A. C. P. v. Button, 371 U.S. 415, 435. That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. Smith v. California, 361 U.S. 147, 150 ; cf. Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 64, n. 6. Any other conclusion would discourage newspapers from carrying "editorial advertisements" of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities -- who wish to exercise their freedom of speech even though they are not members of the press. Cf. Lovell v. Griffin, 303 U.S. 444, 452 ; [****23] Schneider v. State, 308 U.S. 147, 164. The effect would be to shackle the First Amendment in its attempt to secure "the widest possible dissemination of information from diverse and antagonistic sources." Associated Press v. United States, 326 U.S. 1, 20.
[719]** To avoid placing such a handicap upon the freedoms of expression, we hold that HN4 [ ] if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement. 5
[267]* II.
HN5 [ ] Under Alabama law as applied in this case, a publication is "libelous per se" if the words "tend to injure a person... in his reputation" [****24] or to "bring [him] into public contempt"; the trial court stated that the standard was met if the words are such as to "injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust... ." The jury [699]* must find that the words were published "of and concerning" the plaintiff, but where the plaintiff is a public official his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. HN6 [ ] Once "libel per se" has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So. 438 (1938) ; Johnson Publishing Co. v. Davis, 271 Ala. 474, 494- 495, 124 So. 2d 441, 457-458 (1960). His privilege of "fair comment" for expressions of opinion depends on the truth of the facts upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913). [****25] Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124 So. 2d, at 458.
[268]* The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.
(^5) See American Law Institute, Restatement of Torts, § 593, Comment b (1938).
376 U.S. 254, *265; 84 S. Ct. 710, **718; 11 L. Ed. 2d 686, ***697; 1964 U.S. LEXIS 1655, ****
LEdHN[7] [ ] [7] LEdHN[8] [ ] [8]Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that [****26] HN7 [ ] the Constitution does not protect libelous publications. (^6) [****28] Those statements do not foreclose our inquiry
here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials. The dictum in Pennekamp v. Florida, 328 U.S. 331, 348-349 , that "when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants," implied no view as to what remedy might constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U.S. 250 , the Court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and "liable to cause violence and disorder." But the Court was careful to note that it "retains and [720]** exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel"; for "public men, are, as it were, public property, [****27] " and "discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." Id., at 263-264 , and n. 18. In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the [700]* Court was equally divided and the question was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642. [269]* In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 U.S. 415, 429. HN8 [ ] Like insurrection, 7 contempt, 8 advocacy of unlawful acts, 9 breach of the peace, 10 obscenity, 11
(^6) Konigsberg v. State Bar of California, 366 U.S. 36, 49 , and n. 10; Times Film Corp. v. City of Chicago, 365 U.S. 43, 48 ; Roth v. United States, 354 U.S. 476, 486-487 ; Beauharnais v. Illinois, 343 U.S. 250, 266 ; Pennekamp v. Florida, 328 U.S. 331, 348-349 ; Chaplinsky v. New Hampshire, 315 U.S. 568, 572 ; Near v. Minnesota, 283 U.S. 697, 715.
(^7) Herndon v. Lowry, 301 U.S. 242.
(^8) Bridges v. California, 314 U.S. 252 ; Pennekamp v. Florida, 328 U.S. 331.
(^9) De Jonge v. Oregon, 299 U.S. 353.
(^10) Edwards v. South Carolina, 372 U.S. 229.
solicitation of legal business, 12 and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.
LEdHN[9] [ ] [9] LEdHN[10] [ ] [10] LEdHN[11] [ ] [11]The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the [****29] people." Roth v. United States, 354 U.S. 476, 484. "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U.S. 359, 369. "It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions," Bridges v. California, 314 U.S. 252, 270 , and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." N. A. A. C. P. v. Button, 371 U.S. 415, 429. [270]* The First Amendment , said Judge Learned Hand, "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. [****30] To many this is, and always will be, folly; but we have staked upon it our all." United States v. Associated Press, 52 F. Supp. 362, 372 (D. C. S. D. N. Y. 1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376 , gave the principle its classic formulation:
"Those who won our independence believed... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought,
(^11) Roth v. United States, 354 U.S. 476.
(^12) N. A. A. C. P. v. Button, 371 U.S. 415.
376 U.S. 254, *268; 84 S. Ct. 710, **719; 11 L. Ed. 2d 686, ***699; 1964 U.S. LEXIS 1655, ****
