Case summaries

• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
• Gertz v. Welch, 418 U.S. 323 (1974)
• Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)
  (consolidated with Associated Press v. Walker)
• Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)

Robert Welch, Inc. published a monthly magazine entitled American Opinion, which spread the views of the conservative John Birch society. The magazine warned of a nationwide conspiracy of Communist sympathizers to frame police officers. The magazine contained an article saying that Chicago attorney Elmer Gertz had helped frame police officer Robert Nuccio.

Nuccio was convicted of second degree murder for killing a young man. Gertz had represented the young man's family in a civil suit against Nuccio. However, Gertz did not participate in the criminal case against the police officer.

The article contained several factual misstatements related to Gertz. Gertz did not participate in any way to frame Nuccio. Rather, he was not involved in the criminal case. He also was not a Communist.

Gertz sued for defamation. A trial court ruled that Gertz had to show that Robert Welch, Inc. acted with actual malice because the article discussed important public issues. Gertz argued that because he was a private person, not a public figure, he only needed to show negligence or fault.

The media defendant argued that the Times v. Sullivan standard should apply to any defamation plaintiff as long as the published statements related to a matter of public importance. Both a federal trial court and federal appeals court agreed. Gertz appealed to the U.S. Supreme Court.

The Supreme Court distinguished between public and private persons for purposes of defamation law. According to the Court, private persons "are more vulnerable to injury, and the state interest in protecting them is correspondingly greater." The court reasoned that public officials and public figures had greater access to the media and "have a more realistic opportunity to counteract false statements than private individuals normally enjoy."

For these reasons, the court set up a different standard for private persons. The Court determined that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual."

The Court did rule that a private defamation plaintiff could not recover punitive damages unless she met the Times v. Sullivan actual malice standard.

Under the First Amendment there is no such thing as a false idea. … But there is no constitutional value in false statements of fact. (Powell)

Public officials and figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to couteract false statements than private individuals normally enjoy. (Powell)

With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking. (Douglas)

Finally, even a limitation of recovery to 'actual injury' — however much it reduces the size or frequency of recoveries — will not provide the necessary elbowroom for First Amendment expression. (Brennan)

The Supreme Court voted 5-4 to extend the standard of Times v. Sullivan to so-called public figures. Four justices would have applied a more rigid standard on publishers. They would have allowed a public figure defamation plaintiff to recover if he could show that a media defendant engaged in "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers."

Applying this standard, the Court ruled 5-4 to uphold the libel award of plaintiff Wally Butts. However, the Court ruled 9-0 that there was insufficient evidence to hold the Associated Press liable in the Walker case.

Butts case — The Saturday Evening Post, a newspaper published by Curtis Publishing Co., ran an article entitled "The Story of a College Football Fix." The article accused Wally Butts, the then-athletic director for the University of Georgia, of conspiring to fix a 1962 football game between the University of Georgia and its rival the University of Alabama.

The article alleged that Butts gave Georgia's plays to Alabama coach Paul "Bear" Bryant. Butts sued for defamation. The case went to a jury which awarded Butts more than $3 million in damages. The trial court reduced the award to $460,000. After the trial, the Post tried to assert the constitutional defense from the Times v. Sullivan case.

The appeals court affirmed the trial court ruling. Curtis Publishing argued that it was entitled to a new trial because the lower courts should have applied the "actual malice" standard from the Times v. Sullivan decision.

Walker case — The Associated Press reported that Edwin Walker encouraged people to riot when James Meredith became the first African American to enroll at the University of Mississippi. Walker was a retired army general who had been in charge of the federal troops during the desegregation of schools in Little Rock, Arkansas.

Walker sued the Associated Press in a Texas state court, claiming that he had never encouraged any students to protest against federal marshals. A jury awarded Walker $800,000 in damages. The trial judge eliminated the punitive damage award, finding that there was no evidence of actual malice. A Texas appeals court agreed, finding that the Times v. Sullivan standard of actual malice was inapplicable to defamation plaintiffs who were not public officials.

The question before the Supreme Court was whether to extend the rule in Times v. Sullivan for public officials to public figures.

All nine members of the Court agreed that the First Amendment imposed some limitations on the application of state libel laws to public figures in addition to public figures. Four justices determined that the proper standard was whether the media defendant had engaged in "highly unreasonable conduct" and deviated from the standards of a "responsible publisher."

However, five members of the Court went farther and extended the rationale of Times v. Sullivan to public figures. In his concurring opinion, Chief Justice Earl Warren reasoned that there was "no basis in law, logic, or First Amendment policy" to differentiate between public officials and public figures.

Concur (Butts):

Dissent (Walker):

Justice Black (joined by Douglas) and Justice Brennan

(joined by White)

The law of libel has, of course, changed substantially since the early days of the Republic, and this change is 'the direct consequence of the friction between it … and the highly cherished right of free speech.' (Harlan)

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. (Warren)

It strikes me that the Court is getting itself in the same quagmire in the field of libel in which it is now helplessly struggling in the field of obscenity. (Black)

A reporter for the Lorain Journal in Ohio published an article accusing Michael Milkovich, a high school wrestling coach, and H. Don Scott, the school superintendent, of lying under oath in a judicial proceeding. The column alleged that Milkovich's high school escaped discipline from the state high school athletic association officials in part because Milkovich and Scott lied under oath.

Milkovich and Scott sued the paper for defamation in Ohio state court in separate suits. The trial court granted a directed verdict to the paper in Milkovich's case, finding that the evidence failed to show actual malice. A state appeals court reversed, finding that there was sufficient evidence to go to the jury. The newspaper lost further appeals.

The case then went back to the trial court, which again dismissed the suit. This time the trial court determined that the article was constitutionally protected opinion. An Ohio appeals court affirmed. The paper appealed to the Ohio Supreme Court, which reversed. The state high court determined that the challenged statements were statements of fact that could lead to a defamation suit.

However, the Ohio Supreme Court later reversed itself on the reporter's article in the separate defamation suit brought by Superintendent Scott. Based on this ruling, the Ohio appeals court determined that the column was constitutionally protected.

Milkovich appealed to the U.S. Supreme Court, arguing that the challenged statements were not constitutionally protected. The paper argued they were protected as opinion.

The U.S. Supreme Court reasoned that the Court's dicta in Gertz ("Under the First Amendment there is no such thing as a false idea") "was not intended to create a wholesale defamation exemption for anything that might be labeled 'opinion.'" The Court pointed out that the statement "In my opinion John Jones is a liar" can cause as much reputational damage as the statement "Jones is a liar."

To the majority, the First Amendment already provides adequate protection without creating a new opinion privilege. The court determined that a defamation plaintiff must show that the challenged statement both (1) implies an assertion of fact and (2) is "sufficiently factual to be susceptible of being proved true or false."

Applying this standard, the high court majority determined that there was a question of fact as to whether the statements were defamatory.

But we think that the breathing space which freedoms of expression require in order to survive, is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between opinion and fact. (Rehnquist)

Ignorance, without more, has never served to defeat freedom of speech. (Brennan)