constitutional law-defamation-the new york...the extension of the new york times privilege to...

CONSTITUTIONAL LAW-DEFAMATION-THE NEW YORKTIMES STANDARD AND REPORTS OF JUDICIAL PROCEEDINGS. Time,Inc. v. Firestone, 424 U.S. 448 (1976).

In Time, Inc. v. Firestone' the Supreme Court considered thefirst amendment limitations on the liability of the media for publish-ing defamatory falsehoods in reports of judicial proceedings. TheCourt determined that the protection of the New York Times v.Sullivan2 standard, which requires proof of either knowledge of fal-sity or reckless disregard for the truth in the publication of statementsabout the official conduct of a public official, does not automaticallyextend to reports of judicial proceedings. The Court held that thestandard to be applied by the states in fixing liability for defamatoryfalsehoods in reports of judicial proceedings must satisfy the require-ments first enunciated in Gertz v. Robert Welch, Inc.,3 namely,proof of actual injury and a finding of some degree of fault. It dec-lined, however, to further broaden the first amendment protection ofthe press.

Firestone presented the Court with an opportunity to extend theNew York Times umbrella of first amendment protection to thenarrow subject matter categorized as reports of judicial proceedings.This extension would have been appropriate because these reportsare, by their nature, in the public interest. Moreover, they constitutea category of speech sufficiently definite to avoid the undue expansionof first amendment protection at which the Court's previous rejectionof the "matters of public concern" test was aimed. The Court's disin-clination to so expand the New York Times privilege leaves the free-dom of the press to report judicial proceedings to the protection ofthe constitutional standards delineated in Gertz, standards whichmay prove inadequate. It is the purpose of this Case Note to discussthe impact of Time, Inc. v. Firestone on constitutional limitations torecovery in defamation actions against the media.

I. THE FACTS

On December 15, 1967, the Circuit Court of Palm BeachCounty, Florida, granted the divorce requested by Russell Firestone,heir to the tire fortune, from Mary Alice Firestone. The initial com-plaint for separate maintenance had been filed by Mrs. Firestone; herhusband counterclaimed for divorce on grounds of extreme cruelty

1 424 U.S. 448 (1976).2 376 U.S. 254 (1964).

3 418 U.S. 323 (1974).

37 OHIO STATE LAW JOURNAL 881 (1976)

and adultery, and the lengthy trial that followed became a causecelebre in social circles.' The circuit court opinion, hardly a modelof clarity,' did not specify the grounds on which the divorce had beengranted. The opinion read in part, "the equities in this cause are withthe defendant; that defendant's counterclaim for divorce be and thesame is hereby granted."' However, the decision also alluded to testi-mony of marital infidelity by both parties, discounted much of it, andlater in the opinion granted an award of alimony to Mrs. Firestone.

7

The editorial staff of Time magazine was alerted to the fact thata final judgment had been rendered in the Firestone divorce proceed-ing. On the basis of four sources a news item was composed andincluded in the December 22, 1967, issue.8 The item, in the "Mile-stones" section of the newsmagazine, appeared as follows:

DIVORCED. By Russell A. Firestone, Jr., 41, heir to the tirefortune: Mary Alice Sullivan Firestone, 32, his third wife; a onetimePalm Beach school teacher; on grounds of extreme cruelty andadultery: after six years of marriage, one son; in West Palm Beach,Fla. The 17-month intermittent trial produced enough testimony ofextramarital adventures on both sides, said the judge, "to make Dr.Freud's hair curl."

'

Within a few weeks Mrs. Firestone demanded a retraction fromTime, alleging that a portion of the article was "false, malicious, anddefamatory."'" Time declined to issue the requested retraction, andMrs. Firestone brought a libel action in the Florida courts."

The libel action in the Florida circuit court resulted in a juryverdict for Mrs. Firestone, and judgment in the amount of $100,000for mental pain and anguish. 2 The Florida District Court of Appealsreversed the judgment on constitutional grounds, 3 basing its deci-sion on Rosenbloom v. Metromedia, Inc." In Rosenbloom theUnited States Supreme Court extended the New York Timesumbrella of first amendment protection to press coverage of events

424 U.S. at 454.Id. at 468 (Powell, J., concurring).Id. at 45 1.Id. at 450-51.Id. at 451.Id. at 452 (emphasis added).

" 'Under Florida law the demand for retraction was a prerequisite for filing a libel action.and permits defendants to limit their potential liability . . . by complying with the demand."424 U.S. at 452 n.1. See FLA. STAT. ANN. §§ 770.01, 770.02 (1963).

" 424 U.S. at 452.1 Id. at 460-61.13 254 So. 2d 386 (Fla. Dist. Ct. App. 1971).14 403 U.S. 29 (1971).

CASE NOTE

in the public interest. The Supreme Court of Florida reversed thedistrict court decision, stating that the subject matter of the publica-tion was not a "matter of public interest" as that term was used inRosenbloom, and denied the protection of the constitutional privi-lege. The supreme court indicated that on remand the district courtshould apply the Florida common-law standard of liability for defa-mation actions, which imposes strict liability in cases of defamatoryfalsehoods." On remand the district court maintained its reversal ofthe lower court's judgment, this time on common-law grounds." Onfinal review the Florida Supreme Court held that no common-lawprivileges applied to the published item, and affirmed the judgmentof the trial court in favor of Mrs. Firestone.17 One element thatprobably added to the difficulties of the Florida courts in reaching afinal determination in this case was the fact that the constitutionalprinciples governing common-law defamation actions were being re-viewed and revised by the United States Supreme Court during thetime the litigation moved through the Florida appellate process.,8

II. THE CONSTITUTIONAL BACKGROUND

The tort of defamation, in form either libel or slander, is essen-tially an invasion of the interest of reputation and good name. 9 Thelaw governing recovery for defamation was, until 1964, solely thebusiness of the states, untouched by the limitations of the first amend-ment: "Under typical state defamation law, the defamed private citi-zen had to prove only a false publication that would subject him tohatred, contempt, or ridicule." 0 Libelous words were generallyviewed as a class of speech wholly unprotected by the Constitution.2 '

New York Times v. Sullivan21 changed this analysis signifi-cantly. In that case, the Supreme Court of Alabama affirmed a judg-ment in favor of a state official allegedly defamed by statementspublished in the New York Times. The Supreme Court, in a unani-mous decision, reversed the state court's decision and determined thatthere was a first amendment privilege protecting criticism of theofficial conduct of public officials. This constitutional privilege pro-

' 271 So. 2d 745 (Fla. 1972)." 279 So. 2d 389 (Fla. Dist. Ct. App. 1973).'7 305 So. 2d 172 (Fla. 1974).IR See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Rosenbloom v. Metromedia, Inc.,

403 U.S. 29 (1971); Time, Inc. v. Pape, 401 U.S. 279 (1971).1 See W. PROSSER, HANDBOOK OF THE LAW Of TORTS § I!1, at 737 (4th ed. 1971)

[hereinafter cited as PROSSER]." Gertz v. Robert Welch, Inc., 418 U.S. 323, 370 (1974) (White, J., dissenting).21 Id.- 376 U.S. 254 (1964).

884 37 OHIO STATE LAW JOURNAL 881 (1976)

hibits a public official from recovering damages for a defamatoryfalsehood concerning his official conduct absent proof that the state-ment was made with either knowledge of falsity or reckless disregardfor the truth.2 3 The Court reasoned that one of the central functionsof the first amendment is to assure an opportunity for free and vigor-ous political discussion, in order to make government responsive tothe people.24 Without this constitutional protection the states wouldbe able to impose standards for determining liability that would in-hibit public debate:

A rule compelling the critic of official conduct to guarantee thetruth of all his factual assertions-and to do so on pain of libeljudgments virtually unlimited in amount-leads to . . . "self-censorship." Allowance of the defense of truth, with the burden ofproving it on the defendant, does not mean that only false speechwill be deterred."

Such self-censorship would act as a prior restraint on the press andwould be contrary to the first amendment.

The Supreme Court in Curtis Publishing Co. v. Butts26 includedwithin the privilege reports about parties classed as "public figures."The defamation plaintiffs involved were classed by the Court as pub-lic figures because "they commanded a substantial amount of inde-pendent public interest at the time of the publications."' ' The enunci-ation of the first amendment privilege in New York Times, and theextension of that privilege to defamation actions brought by publicfigures, suggested that a continuing expansion of constitutional limi-tations to recovery in defamation actions was both logical and inevi-table.

28

The extension of the New York Times privilege to include publi-cations of defamatory falsehoods pertaining to "matters of publicconcern" appeared certain after the decision in Time, Inc. v. Hill,29

z Id. at 279.I' Id. at 269.

21 Id. at 279.26 388 U.S. 130 (1967).

21 Id. at 154.21 See generally Cohen, A New Niche for the Fault Principle: A Forthcoming Newsworthi-

ness Privilege in Libel Cases?, 18 U.C.L.A. L. REV. 371 (1970); Kalven, The New York TimesCase: A Note on the "'Central Meaning of the First Amendment". 1964 Sup. CT. REV. 191:Wright, Defamation, Privacy and the Public's Right to Know: A National Problem and a NewApproach. 46 TEXAS L. REV. 630 (1968).

- 385 U.S. 374 (1967). This case involved application of a New York privacy statute.Although Hill was not a defamation action, the holding of the Court indicated that the reason-ing would apply in defamation actions:

We hold that the constitutional protections for speech and press preclude the applica-

CASE NOTE

and was apparently accomplished by the decision in Rosenbloom v.Metromedia, Inc.30 Justice Brennan, writing for the plurality inRosenbloom, determined that the New York Times protection shouldextend to defamatory falsehoods relating to private persons if thestatements concerned "matters of public or general interest."3 Thusit appeared that the news media was to have a broad constitutionalprotection for reporting events in the public interest.

The expansion of the privilege that had begun with New YorkTimes was halted, and its extension in Rosenbloom was reversed, bythe Supreme Court's decision in Gertz v. Robert Welch, Inc.3 2 InGertz the Court repudiated the Rosenbloom extension of the NewYork Times privilege to "matters of public concern." However, theCourt affirmed the application of the constitutional privilege if thedefamation plaintiff was either a "public official" or a "public fig-ure." The Court thus affirmed the first amendment principles enunci-ated in New York Times and Butts. Additionally, the Court an-nounced two first amendment limitations to recovery by a defama-tion plaintiff against a media defendant, thereby effectively "constitu-tionalizing" major areas of the law of defamation. 33 The first limita-tion prohibits the states from imposing liability without fault, butleaves it to the states to define for themselves the appropriate stan-dard of liability. 34 The second requirement restricts defamationplaintiffs to compensation for "actual injury," unless there is someproof of either knowledge of falsity or reckless disregard for thetruth. 35 With the enunciation of these two first amendment princi-ples, the Court created a new constitutional law of defamation, someof it fashioned out of whole cloth. 36 This major ruling in defamationlaw is now being evaluated and criticized by courts and commentators

tion of the New York statute to redress false reports of matters of public interest inthe absence of proof that the defendant published the report with knowledge of itsfalsity or in reckless disregard of the truth.

Id. at 387-88.- 403 U.S. 29 (1971). For general discussion and analysis of the Rosenbloom decision.

see Keeton, Some Implications of the Constitutional Privilege to Defame, 25 VAND. L. REv.59 (1972); Comment, The Expanding Constitutional Protection for the News Media fromLiability for Defamation: Predictability and the New Synthesis, 70 Micu. L. REv. 1547 (1972);Note, Rosenbloom v. Metromedia, 40 GEO. WASH. L. REv. 151 (197 1): Note, The End of theLine: Rosenbloom v. Metromedia, 31 U. Prrr. L. Rav. 734 (1970).

' 403 U.S. at 44.418 U.S. 323 (1974).

3 Eaton, The American Law of Defamation Through Gertz v. Robert Welch. Inc. AndBeyond: An Analytical Primer, 61 VA. L. REv. 1349, 1409 (1975) [hereinafter cited as Eaton].

" 418 U.S. at 347.id. at 349.

3' See Eaton, supra note 33, at 1410.


alike." Time, Inc. v. Firestone provides an opportunity to study itsapplication and effect.

III. APPLICATION OF THE New York Times PRIVILEGE TO REPORTSOF JUDICIAL PROCEEDINGS

In Firestone the Court totally abandoned the use of theRosenbloom "subject matter" test in the application of the NewYork Times rule-that is, the Court decided that it would no longerattempt to ascertain whether the publication in question concerned a"matter in the public interest."3 Instead, the Court determined thatrespondent was not a "public figure" as meant by Butts and Gertz,and therefore held the New York Times standard inapplicable.39 Theprotection afforded factually correct reports of judicial proceedingsin Cox Broadcasting Corp. v. Cohn4" was also held not to apply inthis instance. Additionally, the Court applied the constitutional prin-ciples developed in Gertz, further explaining their meaning and effect.The principles developed in these cases, as discussed by the Court inFirestone, now comprise the framework of constitutional protectionafforded published reports of judicial proceedings.

A. The Common-Law Background

At common law there is a generally recognized privilege thatprotects some reports of judicial and other public proceedings againstdefamation actions." The justification for this privilege is the public'sinterest in information concerning governmental affairs." When theprivilege applies it is usually qualified in some manner. Some jurisdic-tions extend the privilege only if the report in question can be charac-terized as fair and accurate. 3 The privilege may be lost if the reportis published solely for the purpose of defaming a person and not forthe purpose of informing the public.4 It is up to the individual statesto determine whether or not to extend this privilege, and to whatextent. Generally, however, the common law of defamation extends

11 E.g., Robertson, Defamation and the First Amendment: In Praise of Gertz v. RobertWelch, Inc., 54 TEX. L. REV. 199 (1976); Anderson, A Response to Professor Robertson: TheIssue is Control of Press Power. 54 TEX. L. REV. 271 (1976); Brosnahan, Front Times v.Sullivan to Gertz v. Welch: Ten Years of Balancing Libel Law and the First Amendment. 26HASTINGS L. J. 777 (1975).

- 424 U.S. at 455.39 Id.40 420 U.S. 469, 491 (1975). See notes 46 & 47 infra and accompanying text." See PROSSER, supra note 19, § 118, at 830.42 Id.13 Id. at 832.1 See RESTATEMENT (FIRST) OF TORTS § 611, comment a (1938).

CASE NOTE

special treatment to publications whose subject matter is a report ofa judicial proceeding, due to the public interest served by publicizingsuch information.

45

B. Factually Accurate Reports of Judicial Proceedings

The Supreme Court opinion developing the first amendmentprivilege to report judicial proceedings was the decision in CoxBroadcasting Corp. v. Cohn." In Cox Broadcasting the Court heldthat the states may not impose sanctions for the publication of truth-ful information contained in official court records open to the pub-lic.47 The petitioner in Firestone sought to have the reasoning of CoxBroadcasting extended to safeguard even inaccurate and false state-ments, at least when neither knowledge of falsity nor reckless disre-gard for the truth had been established.48 The Court rejected thisextension of the holding, and determined that the constitutional pro-tection of Cox Broadcasting extends only to published reports thatare absolutely accurate.4"

The final "accurate" interpretation of the decree in the Firestonedivorce proceeding was arrived at in a rather obscure manner. TheFlorida Supreme Court's explanation of the final determination ofthe grounds for divorce illustrates the difficulty one would have hadin discovering them:

In reviewing the divorce proceeding on certiorari, this court ex-pressly determined that the trial judge "did not find the wife guiltyof adultery." Rather, it was pointed out that the divorce wasgranted for lack of "domestication," in the language of the trialjudge, which of course was not one of the statutory grounds at thetime of divorce. We affirmed the decree .... but on the groundof "extreme cruelty" . . . .50

This illustrates that it can be difficult to accurately report to thepublic court decisions, which are often ambiguous and complex. In-deed, Justice Brennan, in his dissenting opinion in Firestone, pointed

" See PROSSER, supra note 19, § 118, at 831.46 420 U.S. 469 (1975). The case involved an action for damages brought by a rape victim's

father, in reliance on a Georgia statute. making it a misdemeanor to broadcast a rape victim'sname. The father claimed that his right to privacy had been invaded by the broadcast of hisdaughter's name. The information broadcast about the rape victim had been obtained from theindictments, which were public records available for inspection. Since Cox Broadcasting was aprivacy action, its interpretation and effect in defamation actions was uncertain.

I ld.' 424 U.S. at 448.

I' Id. at 457.271 So. 2d at 746 n.l.


out that the probability of inadvertent error in reports concerning thejudicial process is great "in view of the complexities of that processand its unfamiliarity to the laymen who report it."

51

There is perhaps no area of news more inaccurately reported fac-tually ...than legal news. . . .With too rare exceptions [a re-porter's] capacity for misunderstanding the significance of legalevents and procedures, not to speak of opinions, is great. But thisis neither remarkable nor peculiar to newsmen. For the law, aslawyers best know, is full of perplexities. 2

Exacerbating the precarious position of the reporter of judicialproceedings is the lack of constitutional protection for a rationalinterpretation of an ambiguous document when the New York Times"actual malice" standard does not apply. 3 The fact that a standardhigher than negligence does not apply to inaccurate statements makesthe reporter of judicial proceedings extremely vulnerable to liabilityfor defamation. In view of its application in Firestone, the require-ment that the published item be factually accurate substantially limitsthe degree of effective protection from self-censorship that the exten-sion of the Cox Broadcasting privilege sought by petitioner mighthave provided.

C. The New York Times Privilege and Reports of JudicialProceedings

The first amendment privilege established in New York Timesv. Sullivan provides effective protection against self-censorship byrequiring a high degree of culpability on the part of a defamationdefendant. The extension of the New York Times privilege to "publicfigures" focused on the individual who was allegedly defamed, ratherthan on the subject matter of the speech containing the defamatorystatement. The public figure test relies on an assumption that, for

51 424 U.S. at 478-79. (Brennan, J., dissenting).52 Id. at 479-80, (quoting Pennekamp v. Florida, 328 U.S. 331, 371-72 (1946) (Rutledge,

J., concurring)).11 424 U.S. at 459 n.4. This was how the Court construed Time, Inc. v. Pape, 401 U.S.

279 (1971). Pape involved a defamation plaintiff who was a "public official" as defined by NewYork Times v. Sullivan. The defamatory statement made by Time was one of many possiblerational interpretations of a document that bristled with ambiguities. The Court determinedthat in this instance the New York Times privilege provided constitutional protection againstliability for errors of interpretation as well as fact.

PROSSER, supra note 19, § 118, at 830, interpreted Time, Inc. v. Pape to create a privilegefor reports of public documents, even inaccurate ones, unless made with either knowledgeof falsity or reckless disregard of the truth. As the Firestone opinion construes Pape, however,there must be a basis other than a "rational interpretation of an ambiguous document"-i.e.,the presence of a "public official" or "public figure"-for the extension of the New York Timesprivilege.

CASE NOTE

purposes of first amendment protection of free speech, all informa-tion is of equal importance to the public. That analysis is inappro-priate when dealing with reports of judicial proceedings since thesereports constitute a subject matter of speech inherently of interest tothe public, and their importance requires an uninhibited dissemina-tion of information.

1. The Public Figure Test

It is clear after Firestone that publications of reports of judicialproceedings do not automatically receive the constitutional protec-tion of the New York Times privilege. The decision in Firestone toreject the subject matter test indicates that the New York Timesprivilege is restricted to cases in which the defamation plaintiff is a"public official" or "public figure." In restricting the analysis to thecharacter of the individual allegedly defamed, rather than consideringthe nature of the speech, the Court continued to look at the wrongissue. Indeed, the Court seemed to recognize the necessity of consid-ering the subject matter of speech, when it considered the nature ofthe "public controversy" involved in the public figure test.

The majority opinion sheds light on the meaning of "publiccontroversy" and the constitutional protection a report of a judicialproceeding would receive were a public figure involved.5" The Courtconsidered two criteria in determining that Mrs. Firestone was not apublic figure. The first criterion applied was whether the individualhad thrust himself to the forefront of a particular controversy in orderto affect its resolution.- In applying this requirement, the Court heldthat Mrs. Firestone had not thrust herself to the forefront of a publiccontroversy.56 Thus an individual gaining prominence passively orinvoluntarily is not a public figure for purposes of the first amend-ment.

The opinion of the Court in Firestone also puts special emphasison the nature of the "public controversy" that is required for anindividual to be a public figure. In its discussion the Court indicatedthat all controversies of interest to the public are not necessarily in

11 The Court in Gertz also entered into an extensive discussion of the meaning of the term"public figure." 418 U.S. 323. 351-53.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). The Court in Gertz did recognizea class of "public figures" who, because of general fame or notoriety in the community. andpervasive involvement in the affairs of society, would be deemed public figures for all aspectsof their lives. 418 U.S. at 352. It may be interpreted from this that public figures of this typewould be subject to constitutional limitations on recovery for defamation without necessarily"thrusting themselves" forward into the public eye. The Court in Firestone did not considerany possibility of Mrs. Firestone's belonging to this category.

424 U.S. at 453.


the nature of a public controversy, and determined that dissolutionof a marriage through judicial proceedings was not the type of publiccontroversy referred to in Gertz.57

However, in making such an assessment of a public controversy,the Court entered into a discussion of the term "public controversy"that resurrects the precise difficulties that Gertz was designed toavoid.58 A major concern in Gertz was that "matters of public con-cern" is an excessively vague definition of a protected area of speech.The Court was concerned that it would be necessary for the lowercourts to become involved in what Justice Marshall characterized inhis dissent in Rosenbloom as "the dangerous business of decidingwhat information is relevant to self-government." 59 In the analysis ofthe public figure issue in Firestone, however, the Court inquired intothe nature of the controversy involved, an analysis similar to thesubject matter test rejected in Gertz.

The Court's conclusion that the controversy was insignificant,i.e. not a public controversy, was not based on articulated standards,and undoubtedly Was based to some degree on the subjective judg-ment of the Justices. While the Court may have clarified the issuesfor determining whether an individual is a public figure, it has notyet set forth predictable standards for the lower courts to apply inmaking this determination. Nevertheless, it is clear that if a publicfigure is the subject of a defamatory statement in a report of ajudicialproceeding, the publisher will be extended the constitutional protec-tion of the New York Times standard in a defamation action.6"

2. The Subject Matter Test

The holding in Firestone that reports of judicial proceedings arenot automatically within the protection of the New York Times ruleis a continuation of the Court's retreat from the Rosenbloom expan-sion of constitutional privilege-a retreat begun by the Court's rejec-tion in Gertz of the subject matter test."1 The Court reasoned asfollows:

Presumptively erecting the New York Times barrier against allplaintiffs seeking to recover for injuries from defamatory falsehoods

Id. at 454.See 424 U.S. at 488 (Marshall, J., dissenting),

' 418 U.S. at 339.If an individual who is not a public figure were defamed in a report of a judicial

proceeding concerning a "public official" or "public figure," the New York Times rule presum-ably would not be applicable in a suit by that individual after Firestone. See Rosenbloom v.Metromedia, Inc., 403 U.S. 29 (1971).

11 424 U.S. at 456.

CASE NOTE

published in what are alleged to be reports of judicial proceedingswould effect substantial depreciation of the individual's interest inprotection from such harm, without any convincing assurance thatsuch a sacrifice is required under the First Amendment.12

The Court has thus continued to focus on the individual involved inthe defamation action, rather than on the informational value of thespeech.

The Court in Firestone conceived its role in defamation actionsinvolving the media to be to strike a balance between "the public'sinterest in an uninhibited press and its equally compelling need forjudicial redress of libelous utterances. ' 3 In Gertz the Court haddetermined that the legitimate state interest in compensating injuryto the individual's reputation is substantially greater when the indi-vidual is not a public official or public figure." In Firestone the issueof the proper balance to be struck was complicated by the fact thatreports of judicial proceedings were involved, a subject matter inher-ently important to the public. The Court, however, was satisfied thatthe interests clashing here were substantially the same as those pres-ent in Gertz, and that the balance struck there applied.

The error in the Court's resolution of this problem is that, whilethe analysis in Gertz of the interest in protecting an individual'sreputation may have been applicable to the defamation plaintiff inFirestone,5 the analysis concerning the competing interest of firstamendment protection of free speech was not." This competing inter-est in Gertz was analyzed only in relation to the broad category ofspeech concerning "matters in the public concern." Undue expansionof that class of speech was thought to be inevitable because of thevagueness of that category. 7 The possibility of such an unlimitedexpansion of the application of the New York Times privilege clashed

l2 Id.

i Id. at 456-57.418 U.S. at 345.

" Justice Marshall, dissenting in Firestone, considered respondent to be a "public figure"within the meaning of Gertz and Butts. 424 U.S. at 489-90.

"9 The published article that contained the defamatory statements in Gertz was part of acontinuing effort of the magazine American Opinion to alert the public to an alleged nationwidecommunist conspiracy. The article was political in nature, was not a report of a judicialproceeding, and was not considered by the Court to be a report of a judicial proceeding. Thedefamatory statements accused a lawyer, Elmer Gertz, of having been an official of Marxistorganizations advocating violent overthrow of the government, and labeled Gertz as a "Lenin-ist" and a "Communist-fronter." 418 U.S. at 325-26.

" Many cases have employed the concept of "matters of public concern" to reach deci-sions in situations involving an alleged libel of a private individual. For citation to representa-tive cases, see Comment, The Expanding Constitutional Protection for the News Media fromLiability for Defamation: Predictability and the New Synthesis, 70 MICH. L. Rev. 1547 (1972).


with the Court's concern with providing adequate protection to theinterest in reputation. The Court recalled Justice Marshall's dissentin the Rosenbloom decision, and reiterated his apprehensions that thecourts might become involved "in the dangerous business of decidingwhat information is relevant to self-government." '68 However, thetype of speech at issue in Firestone is a less expansive, more definitecategory of speech not nearly as susceptible to unlimited expansionas is the phrase "matters in the public concern."6 By extending theNew York Times rule to cover only this subject matter, the Courtwould have avoided involvement in Justice Marshall's "dangerousbusiness." This would have kept the courts removed from politicaldebate, leaving them with only the factual determination of whethera published item was a bona fide report of a judicial proceeding.

7

Reports of judicial proceedings are by their nature in the publicinterest especially to those concerned with the administration of gov-ernment, and a public benefit is served when the media report them .7

Justice Brennan, in the majority opinion in New York Times v.Sullivan, stated that "a profound national commitment to the princi-ple that debate on public issues should be uninhibited, robust, andwide-open" is a central principle of the first amendment. 72 The pro-found and extensive involvement of the judicial branch in Americangovernment and society indicates the need for public scrutiny of itsdecisions. Reports of judicial proceedings could have been extendedthe protection of the New York Times privilege on the basis of theindispensable service the media perform by subjecting judicial pro-cesses to public criticism.7 3 As stated in Cox Broadcasting: "Withrespect to judicial proceedings in particular, the function of the pressserves to guarantee the fairness of trials and to bring to bear thebeneficial effects of public scrutiny upon the administration of jus-tice.17 The Court reasoned in that case that freedom to report infor-mation contained in public court records was "of critical importanceto our type of government in which the citizenry is the final judge ofthe proper conduct of public business. ' 75 In the view of JusticeRehnquist writing for the Court in Firestone, however, "[tihe details

Gertz v. Robert Welch, Inc., 418 U.S. at 346." The Court in Cox Broadcasting v. Cohn had no difficulty with determining whether or

not a published statement was a report of a judicial proceeding. 420 U.S. 469 (1975).70 Id. at 495.71 Cf notes 41 & 42 supra and accompanying text.2 376 U.S. at 270.7 424 U.S. at 477 (Brennan, J., dissenting). See also Sheppard v. Maxwell. 384 U.S. 333

(1966).', Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975).7 Id. at 495.

CASE NOTE

of many, if not most, courtroom battles would add almost nothingtowards advancing the uninhibited debate on public issues thought toprovide principal support for the decision in New York Times."'71 TheCourt thus adopted the method of accommodation between the com-peting interests that had been developed in Gertz, dismissing thedifference in first amendment interests that should have resulted inextension of the New York Times privilege.

New York Times and its progeny extended the first amendmentprotection of free speech because of the Court's belief that "to insurethe ascertainment and publication of the truth about public affairs,it is essential that the First Amendment protect some erroneous pub-lications as well as true ones."77 Without constitutional protection ofsome erroneous publications a publisher would be subject to pressuresthat would inevitably lead to self-censorship. For even with a greatexpenditure of time and effort in attempting to ensure a true report,if the report was eventually determined to be false, the publishermight be subject to liability. Thus, as shown above, a standard ofliability short of the New York Times test affords inadequate protec-tion of the press for reports of judicial proceedings.

IV. THE CONSTITUTIONAL REQUIREMENTS OF Gertz

The Court in Firestone believed that the constitutional limita-tions announced in Gertz, though short of the protection of the NewYork Times standard, were an adequate safeguard for the interestsof free expression, and provided the necessary "breathing space" forthe press in publishing reports of judicial proceedings.78 However,close scrutiny of the application of these limitations in Firestonedemonstrates that they afford very little protection to media defen-dants."

A. Proof of Fault

One constitutional requirement articulated in Gertz is that theremust be some finding of fault on the part of a defendant charged withpublishing defamatory material. The Court left it up to the states toestablish their own standards of liability." A defamation plaintiff

7' 424 U.S. at 457.St. Amant v. Thompson, 390 U.S. 727, 732 (1968).

's 424 U.S. at 457." Some state common-law privileges, such as the "fair comment" privilege, may be

effective in protecting freedom of expression. In addition, some states may reject the Gertzreasoning and return to Rosenbloom standards, since Gertz establishes only minimum require-ments.

418 U.S. at 346.


may be required to prove only a publisher's lack of ordinary care, ora state may hold a publisher to a lesser duty of care and require proofof reckless disregard for the truth.8 There must be in all cases aconscious weighing of the evidence at some level of decision to deter-mine whether there was actionable negligence. Such a finding maybe made in the first instance by an appellate court.82 It was theabsence of any apparent assessment of the issue of fault that resultedin the order to vacate the judgment of the Supreme Court ofFlorida." The Firestone explanation of the requirements of a faultstandard should enable courts to avoid this problem in the future bymaking an explicit determination of fault.

The protection against liability for defamation provided by asimple fault standard is inadequate to protect freedom of expression.Its dependence on the idiosyncracies of the jury make it an unpredict-able standard that could result in self-censorship:

No one with the slightest appreciation for the myriad uncertaintiesof common law negligence would rely on the belief that reasonablecare will preclude an adverse verdict. If the common law conceptof negligence is applied to defamation, the extent of a publisher'sconstitutional protection will depend on a jury's relatively unfet-tered, ex post facto appraisal of his conduct, and since the publisherhas no way of knowing how large the jury will make the prohibitedzone, he has no choice but to steer wide of it.U

Because of this reliance on the determination of the jury, it isimportant that a review be made of the evidentiary basis for thatdetermination. The opinion of the Court in Firestone was expresslyconcerned with whether a finding of fault had been made and, be-cause of this focus, did not reach the issue of the sufficiency of theevidentiary basis supporting that finding. The Court did indicate thatits review might extend to the evidentiary basis of a finding of faultwhen it stated: "If we were satisfied that one of the Florida courtswhich considered this case had supportably ascertained petitioner wasat fault, we would be required to affirm the judgment below."' ' Un-less the Court is willing to review findings of negligence made by the

1, 424 U.S. at 464-65 (Powell, J., concurring).12 Id. at 461: "Nothing in the Constitution requires that the assessment of fault in a civil

case tried in a state court be made by a jury, nor is there any prohibition against such a findingbeing made in the first instance by an appellate, rather than a trial, court."

0 In Firestone, two Justices, Marshall and White, thought that there was a consciousfinding of fault in the Florida Supreme Court. Four Justices, Marshall, Powell, Stewart, andBrennan, believed such a finding was not supported by the evidence.

1 Anderson, Libel and Press Self-Censorship, 53 TEx. L. Rev. 422, 460 (1975).424 U.S. at 461-62 (emphasis added).

CASE NOTE

state courts, the standards imposed by the states could in effect ap-proach strict liability, and the constitutional protection provided re-ports of judicial proceedings by the proof of fault requirement wouldlack effectiveness.

B. Actual Injury

The second constitutional requirement articulated in the Gertzdecision is that defamation plaintiffs must prove and can recover onlyfor "actual injury." The significance of this aspect of the decision isthe requirement of proof of any alleged injury. The common-lawpresumption of damages and potential assessment of punitive dam-ages were made unconstitutional in a defamation action againstmedia defendants, absent proof of reckless disregard for the truth.

8 1

In this respect this new constitutional principle wrought a radicalchange in the law of defamation. The Court justified the requirementof proof of actual injury by reference to the inhibiting effect gratui-tous awards of money damages greatly in excess of injury might haveon free expression: "The largely uncontrolled discretion of juries toaward damages where there is no loss unnecessarily compounds thepotential of any system of liability for defamatory falsehood to in-hibit the vigorous exercise of First Amendment freedoms."8

The Court's requirement of proof of actual injury created ambi-guity, however, about the extent to which the Supreme Court wastaking over the law of defamation. The Court in Gertz did not definethe term "actual injury," and it was unclear whether the Court in-tended to limit the types of injuries for which damages could berecovered in a defamation action, or simply to require proof of actualinjury of any type. Time's theory in Firestone is evidence of theconfusion possible after the Gertz decision. Time argued that, be-cause of the withdrawal of any claim for damages to reputation, therecould be no recovery for any other damages-e.g., emotional in-jury-consistent with Gertz.8 The Firestone decision clarified theambiguity by indicating that these aspects of the law of defamation,i.e., the types of injuries recoverable and whether a claim of injuryto reputation was a prerequisite to recovery, were still for the individ-ual states to resolve. 9 As the Firestone Court interpreted the Gertzdecision, in the area of damages the Constitution required competent

U 418 U.S. at 348-50.

97 Id.m Petitioner's Brief for Certiorari at 20, Time, Inc. v. Firestone, 424 U.S. 448 (1976)." 424 U.S. at 461.


evidence concerning the injury, and no more.'" Thus state courts arefree "to permit recovery for other injuries [in a defamation action]without regard to. . .the effect the falsehood may have had upon aplaintiff's reputation."'"

The damages recovered in Firestone indicate that the Gertzproof of actual injury requirement may fail to adequately protect apublisher from the unlimited damage awards it was designed to pre-vent. The Firestone Court explained that the state courts may estab-lish the damages available to a defamation plaintiff, indicating thatthe states may adopt a broad concept of actual injury. The dispositionof the damages issue in the Florida courts indicates the breadth ofdiscretion remaining in the state courts."2 The Supreme Court inFirestone failed to consider that the Florida courts' disposition of thedamages issue negated the policy justification of the proof of actualinjury requirement in Gertz.

In addition, it appears that the Supreme Court will not questionlarge recoveries permitted by state courts, even when based on ratherflimsy evidence. This is indicated by what the Supreme Court inFirestone thought to be sufficient evidence to support the $100,000award for emotional damages:

The witnesses who testified included respondent's minister, her at-torney in the divorce proceedings, plus several friends and neigh-bors, one of whom was a physician who testified to having to admin-ister a sedative in an attempt to reduce respondent's discomfortwrought by her worrying about the article.93

The ability of the state courts to expand recoverable damages indi-cates that the Gertz principle may not achieve the control of largelydiscretionary monetary awards that the Gertz Court intended.

Thus the open-ended nature of a defamation plaintiffs available

N Id. at 460." Id.12 In Florida a defamation plaintiff does not have to show any demonstrable injury to

reputation and is relieved of the burden of putting his reputation in issue, by pleading only theemotional damages of "personal humiliation" or "mental anguish." Firestone v. Time, Inc.,305 So. 2d 172 (Fla. 1974). When the Supreme Court of Florida reached this result, one authorcommented: "There is real mischief here. Negligent infliction of mental distress by publishinga falsehood may well be a tort, but it is not the tort of defamation. Defamation is injury toreputation." Eaton, supra note 33, at 1438. Since injury to reputation was the essential issuein a defamation action, a defendant had always been able to introduce evidence of the plaintiffsbad reputation to mitigate damages. Eaton, supra note 33, at 1438 n.365; PROSSER, supra note19, § 116, at 801. In Florida, this common-law defense is no longer effective, since it may beavoided by simply dropping the claim for injury to reputation. Thus it appears that the statesmay alter the tort of defamation to fit the Supreme Court's requirements, while creating a newtort that seams to differ from common-law defamation.

n 424 U.S. at 460-61 n.6.

CASE NOTE

damages casts doubt upon the effectiveness of the constitutional re-quirement of proof of actual injury in providing first amendmentprotection for reports of judicial proceedings. An application of theNew York Times privilege to this category of speech would haveavoided the problems involved in applying the principles enunciatedin Gertz, since there would then be no question of the effectivenessand degree of constitutional protection afforded this limited subjectmatter.

V. CONCLUSION

The First Amendment insulates from defamation liability a marginfor error sufficient to ensure the avoidance of crippling press self-censorship in the field of reporting public judicial affairs. To beadequate, that margin must be both of sufficient breadth and pre-dictable in its application. 4

Time, Inc. v. Firestone presented a situation in which the firstamendment interests in reports of judicial proceedings should havesupported application of the New York Times privilege to this limitedarea of speech. This would have provided an adequate margin forreporting public judicial affairs. Instead, the Court indicated its in-tention to let that margin for error be defined primarily by the consti-tutional principles first enunciated in Gertz. But the ability of thestates to expand the concept of "actual injury," as did the Floridacourts, indicates that the margin for error was not broadened by thisrequirement. In addition, while the "proof of fault" requirement mayprovide a wider margin for error than common-law strict liability, itlacks predictability because of its dependence on the nuances of thejury. The important constitutional interest in freedom to report judi-cial proceedings requires a greater level of protection for that limitedclass of speech than the Gertz standards provide. There is the possi-bility under Cox Broadcasting of the greater constitutional protectionof the New York Times rule in specific circumstances, but its applica-tion is severely restricted and does little to add breadth to the marginfor error.

The Court has chosen to adopt the Gertz privileges for reportsof judicial proceedings, and the impact of this on first amendmentfreedom of the press can be understood only in terms of its practicaleffects. With Gertz providing the only "breathing space" for publica-tions reporting public judicial affairs, publishers must be especiallyconcerned about the degree of constitutional protection they may

" Id. at 481 (Brennan, J., dissenting).


have. They must be aware of the possibility of a defamatory false-hood any time it is not possible to quote a source verbatim. This willnot be possible in many situations, because of the length or the com-plexity of the source.

[N]o less true than in other areas of government, error in reportingand debate concerning the judicial process is inevitable. Indeed, inview of the complexities of that process and its unfamiliarity to thelaymen who report it, the probability of inadvertent error may besubstantially greater.95

If a publisher wishes to use his own interpretation or abridgedversion, he is confronted with some serious and difficult decisions.One option, and perhaps the only safe one, is not to publish. The roleof the first amendment in the area of defamation is to prevent sucha decision. A publisher's alternative, however, is to seek legal advice,exercise care in the publication of the report, and still face the possi-bility of lengthy litigation and an adverse judgment. When publishersare confronted with such alternatives, the opportunities for the self-censorship decried by New York Times multiply, resulting in a de-crease in information reaching the public about the workings of theirgovernment.

Glenn E. Bost H

15 Id. at 478-79.

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