Curtis Publishing Co. v. Butts and Associated Press v. Walker

388 U.S. 130

Decided: June 12, 1967

Curtis Publiching Co. v. Butts and Associated Press v. Walker were two separate cases that were decided together by the Supreme Court for the purpose of deciding whether the rule for libel announced in NYT v Sullivan should be extended to public figures as well as public officials. The Court was deeply divided with four different opinions being written. Those four different opinions announced three different standards that could be used for applying libel law to public figures, as opposed to public officials.

Standard 1: An Absolutist Standard (Justices Black and Douglas): Public officials and public figures should never be able to win a libel suit against the press. This was the view of Justicses Black and Douglas.

Standard 2: The NYT Actual Malice Standard (Justices Warren, Brennan, and White): Both Public Figures and Public officials should be awarded damages for libel only if they can prove that the defendant published false and defamatory statements about them with actual malice, i.e., the defendant knew his statement was false, or he made his statement in reckless disregard for the truth.

Standard 3 : "Highly Unreasonable Conduct" Standard (Justices Harlan, Clark, Stewart, and Fortas): A public official must meet the NYT Actual Malice standard. However, a public figure shouldn't have to meet this strict standard before being able to win a lawsuit for libel. Instead, a "public figure" who is not a public official may. . . recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.

Note that the standard 3 is the easiest standard for the Plaintiff to meet, but that 5 of the 9 Justices required that the public figure plaintiff meet at least the NYT Actual Malice standard before being awarded damages for libel. Even though Justice Harlan wrote the main opinion ("Highly Unreasonable Conduct" standard), the rule set forth by Justice Warren ("Actual Malice" standard) became the law of the land.

Justice Harlan's opinion (Standard 3) is the main opinion for the case. It lays out the facts and the proceedings in the lower courts in great detail. However, Justics Warren's opinion is the most influential--indeed it lays out the basic rule followed in subsequent libel cases. This is becaus only four Justices signed onto Harlan's opinion, whereas five Justices said that for a public figure plaintiff to successfully win a libel suit, she must at least meet the actual malice standard set forth in NYT v. Sullivan. The "unreasonable conduct" test announced in Justice Harlan's opinion just didn't give enough breathing room for free speech.

What follows is excerpts from both Justice Harlan's opinion and Justice Warren's opinion. They need to be read together, with the understanding that the rule announced in Justice Warren's opinion would be the Court's definitive holding.

 

From Justice Harlan's Opinion

I

Facts --Curtis v. Butts

Curtis Publishing owned the Saturday Evening Post which published an article that stated that Wally Butts, the athletic director of the University of Georgia, conspired with the coach of the University of Alabama to fix a football game. The article was false and sloppily prepared.

Circuit Court Holding:

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

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

The jury was also instructed that it could award punitive damages "to deter the wrongdoer from repeating the trespass" in an amount within its sole discretion if it found that actual malice had been proved. ^[n3]

The jury returned a verdict for $60,000 in general damages and for $3,000000 in punitive damages. The trial court reduced the total to $460,000 by remittitur.

 

Appeals Court Holding

Appeals Court affirmed the District Court's ruling.

Turning to the punitive damage award, the majority upheld it as stemming from the "enlightened conscience" of the jury as adjusted by the lawful action of the trial judge. It was in "complete accord" with the trial court's determination that the evidence justified the finding "that what the Post did was done with reckless disregard of whether the article was false or not.

 

II

Facts: Associated Press v. Walker

Walker had been accused in an article of leading a riot against Federal Marshalls who had been sent to enforce a court decree ordering the a Black, James Meredith, be enrolled at the University of Misissippi.

Though Walker was not an office holder, he had been involved in political activity and he had made strong statements against Federal Intervaention to support school integration.

There were minor discrepencies in reporting, but overall the report was prepared with reasonable care.

 

State Trial Court Holding:

 

The jury was instructed that an award of compensatory damages could be made if the dispatch was not substantially true, ^[n4] and that punitive damages could be added if the article was actuated by

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

A verdict of $500,000 compensatory damages and $300,000 punitive damages was returned. The trial judge, however, found that there was "no evidence to support the jury's answers that there was actual malice" [p142] and refused to enter the punitive award. He concluded that the failure further to investigate the minor discrepancy between the oral and written versions of the incident could not

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

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

 

Supreme Court of Texas Holding:

The Supreme Court of Texas affirmed the lower court's award of compensatory damages, and rejected punitive damages because the AP did not have actual malice.

 

 

IV

We thus turn to a consideration, on the merits, of the constitutional claims raised by Curtis' in Butts and by the Associated Press in Walker. Powerful arguments are brought to bear for the extension of the New York Times rule in both cases. . . .

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

 

"[t]he guarantees for speech and press are not the preserve of political expression or comment upon public affairs . . .", and affirmed that freedom of discussion

must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.

 

Despite Need to Protect Free Speech, NYT Rule Is Not Inevitable

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

It is significant that the guarantee of freedom of speech and press falls between the religious guarantees and the guarantee of the right to petition for redress of grievances in the text of the First Amendment, the principles of which are carried to the States by the Fourteenth Amendment. It partakes of the nature of both, for it is as much a guarantee to individuals of their personal right to make their thoughts public and put them before the community, see Holt, Of the Liberty of the Press, in Nelson, Freedom of the Press from Hamilton to the Warren Court 18-19, as it is a social necessity required for the "maintenance of our political system and an open society." Time, Inc. v. Hill, supra, at 389. It is because of the personal nature of this right that we have rejected all manner of prior restraint on publication, Near v. Minnesota, 283 U.S. 697, despite strong arguments that, if the material was unprotected, the time of suppression was immaterial. Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 Harv.L.Rev. 640. The dissemination of the individual's opinions on matters of public interest is for us, in the historic words of the Declaration of Independence, an "unalienable right" that "governments are instituted among men to secure." History shows us that the Founders were not always convinced that unlimited discussion of public issues would be "for the benefit of all of us," ^[n13] but that they firmly adhered to the proposition that the "true liberty of the press" permitted "every man to publish [p150] his opinion." Respublica v. Oswald, 1 Dall. 319, 325 (Pa.). . . .

 

The guarantees of freedom of speech and press were not designed to prevent

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

2 Cooley, Constitutional Limitations 886 (8th ed.). Our touchstones are that acceptable [p151] limitations must neither affect "the impartial distribution of news" and ideas, Associated Press v. Labor Board, supra, at 133, nor because of their history or impact constitute a special burden on the press, Grosjean v. American Press Co., Inc., 297 U.S. 233, nor deprive our free society of the stimulating benefit of varied ideas because their purveyors fear physical or economic retribution solely because of what they choose to think and publish.

 

Early Libel Law

 

Truth was no defense in such actions . . . The same truthful statement might be the basis of a criminal libel action. . . . The emphasis has shifted from criminal to civil remedies . . . Truth has become an absolute defense in almost all cases, ^[n17] and privileges designed to foster free communication are almost universally [p152] recognized. ^[n18] But the basic theory of libel has not changed, and words defamatory of another are still placed "in the same class with the use of explosives or the keeping of dangerous animals." Prosser, The Law of Torts § 108, at 792. Thus, some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy. . . .

 

We have recognized "the inevitability of some error in the situation presented in free debate," Time, Inc. v. Hill, supra, at 406 (opinion of this writer), and that "putting to the preexisting prejudices of a jury the determination of what is ‘true' may effectively institute a system of censorship."

Our resolution of New York Times Co. v. Sullivan, in the context of the numerous statutes and cases which allow ideologically neutral and generally applicable regulatory measures to be applied to publication, makes clear, however, that neither the interests of the publisher nor those of society necessarily preclude a damage award [p153] based on improper conduct which creates a false publication. It is the conduct element, therefore, on which we must principally focus if we are successfully to resolve the antithesis between civil libel actions and the freedom of speech and press. Impositions based on misconduct can be neutral with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood.

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

the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies,

Dennis v. United States, 341 U.S. 494, 503, and limited recovery to those cases where "calculated falsehood" placed the publisher

at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.

Garrison v. Louisiana, 379 U.S. 64, 75. That is to say, such officials were permitted to recover in libel only when they could prove that the publication involved was deliberately falsified, or published recklessly despite the publisher's awareness of probable falsity. Investigatory failures alone were held insufficient to satisfy this standard. See New York [p154] Times, at 286-288, 292; Garrison v. Louisiana, supra, at 73-75, 79.

 

Harlan Holding

Both Harlan's opinion and Warren's opinion held that Butts and Walker were public figures and the press was entitled to some sort of protection. The two opinions are differentiated by the type of protection to be afforded the press. The Harlan standard "of highly unreasonable conduct " did not prevail and is not to be used in decidint future cases.

In the cases we decide today, none of the particular considerations involved in New York Times is present. These actions cannot be analogized to prosecutions for seditious libel. Neither plaintiff has any position in government which would permit a recovery by him to be viewed as a vindication of governmental policy. Neither was entitled to a special privilege protecting his utterances against accountability in libel. We are prompted, therefore, to seek guidance from the rules of liability which prevail in our society with respect to compensation of persons injured by the improper performance of a legitimate activity by another. Under these rules, a departure from the kind of care society may expect from a reasonable man performing such activity leaves the actor open to a judicial shifting of loss. In defining these rules, and especially in formulating the standards for determining the degree of care to be expected in the circumstances, courts have consistently given much attention to the importance of defendants' activities. Prosser, The Law of Torts § 31, at 151. The courts have also, especially in libel cases, investigated the plaintiff's position to determine whether he has a legitimate call upon the court for protection in light of his prior activities and means of self-defense. See Brewer v. Hearst Publishing Co., 185 F.2d 846; Flanagan v. Nicholson Publishing Co., 137 La. 588, 68 So. 964. We note that the public interest in the circulation of the materials here involved, and the publisher's interest in circulating them, is not less than that involved in New York Times. And both Butts and Walker commanded a substantial amount of independent public interest at the time of the publications; both, in our opinion, would have been labeled "public figures" under ordinary tort rules. See Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 221 N.E.2d 543, remanded [p155] on other grounds, 387 U.S. 239. Butts may have attained that status by position alone, and Walker by his purposeful activity amounting to a thrusting of his personality into the "vortex" of an important public controversy, but both commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able "to expose through discussion the falsehood and fallacies" of the defamatory statements. Whitney v. California, 274 U.S. 357, 377 (Brandeis, J., dissenting).

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

Nothing in this opinion is meant to affect the holdings in New York Times and its progeny, including our recent decision in Time, Inc. v. Hill, ^[n19] [p156]

 

V

The Court ruled that Curtis did indeed meet the NYT test of actual malice, whereas the AP did not. Thus, Butts could recover while General Walker lost his case.

 

VI

Punitive Damages

Harlan held that the same test ("highly unreasonable conduct") used to determine compensatory damages should be used for determining punative damages. This too was a minority position and is not the precedent set for future cases.

Where a publisher's departure from standards of press responsibility is severe enough to strip from him the constitutional protection our decision acknowledges, we think it entirely proper for the State to act not only for the protection of the individual injured, but to safeguard all those similarly situated against like abuse. . . . We would hold, therefore, that misconduct sufficient to justify the award of compensatory damages also justifies the imposition of a punitive award, subject, of course, to the limitation that such award is not demonstrated to be founded on the mere prejudice of the jury.

 

 

Justice Warren's Opinion

Justice Warren wrote the opinion that set precedent for future cases.

While I agree with the results announced by MR. JUSTICE HARLAN in both of these cases, I find myself in disagreement with his stated reasons for reaching those results. Our difference stems from his departure from the teaching of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to which we both subscribed only three years ago.

 

I

In the New York Times case, we held that a State cannot, consistently with the First and Fourteenth Amendments, award damages to a "public official" for a defamatory falsehood relating to his official conduct unless the verdict is based on proof of "actual malice" -- that is, proof that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 280. The present cases involve not "public officials," but "public figures" whose views and actions with respect to public issues and events are often of as much concern to the citizen as the attitudes and behavior of "public officials" with respect to the same issues and events.

All of us agree that the basic considerations underlying the First Amendment require that some limitations be placed on the application of state libel laws to "public figures" as well as "public officials." Similarly, the seven members of the Court who deem it necessary to pass upon the question agree that the respondents in these cases are "public figures" for First Amendment purposes. [p163] Having reached this point, however, MR. JUSTICE HARLAN's opinion departs from the standard of New York Times and substitutes in cases involving "public figures" a standard that is based on "highly unreasonable conduct" and is phrased in terms of "extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers" (ante, p. 155). I cannot believe that a standard which is based on such an unusual and uncertain formulation could either guide a jury of laymen or afford the protection for speech and debate that is fundamental to our society and guaranteed by the First Amendment.

To me, differentiation between "public figures" and "public officials" and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors are blurred. Since the depression of the 1930's and World War II, there has been a rapid fusion of economic and political power, a merging of science, industry, and government, and a high degree of interaction between the intellectual, governmental, and business worlds. Depression, war, international tensions, national and international markets, and the surging growth of science and technology have precipitated national and international problems that demand national and international solutions. While these trends and events have occasioned a consolidation of governmental power, power has also become much more organized in what we have commonly considered to be the private sector. In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in [p164] the case of individuals, so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.

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

I therefore adhere to the New York Times standard in the case of "public figures" as well as "public officials."

 

 

---

Back to Summary of Libel Cases