Barr v. Matteo (360 U.S. 564)/Dissent Warren

by Earl Warren

[p578] MR. JUSTICE WARREN, with whom MR. JUSTICE DOUGLAS joins, dissenting.

The principal opinion in this case purports to launch the Court on a balancing process in order to reconcile the interest of the public in obtaining fearless executive performance and the interest of the individual in having redress for defamation. Even accepting for the moment that these are the proper interests to be balanced, the ultimate disposition is not the result of a balance. On the one hand, the principal opinion sets up a vague standard under which no government employee can tell with any certainty whether he will receive absolute immunity for his acts. On the other hand, it has not given even the slightest consideration to the interest of the individual who is defamed. It is a complete annihilation of his interest.

I could understand it—though I could not agree—if the Court adopted a broad absolute privilege for certain classes of government officials, or indeed for the entire executive, by broadly extending Spalding v. Vilas, 161 U.S. 483. At least that result would yield certainty by allowing government officials to know in advance whether they might issue absolutely privileged statements. But the opinion's test sets no standard to guide executive conduct. As the Government acknowledged on oral argument, Congress, when it creates executive agencies, almost never expressly authorizes the new agency to issue press releases as part of its functions. Nor does it decree which employees of the new agency will have such duties and which will not. By necessity, therefore, the decision will require a de novo appraisal of almost every charge of [p579] defamation by a government official. The records will probably be no more satisfactory than the one now before us—with little more than bald assertions that a specific official has the power to do what resulted in the defamation. The principal opinion cannot even say that Barr's position authorized the press release; the most it can and does say is that it cannot say that the release was not an appropriate exercise of discretion by Barr in this precise situation, ante, p. 574. This creates a presumption that the challenged action is within the officer's scope of duty unless the plaintiff can prove otherwise. Since it has been admitted that, as in this case, these duties are rarely enumerated, an executive assertion on the official's behalf may place an impossible burden of proof on the plaintiff seeking to avoid the defense of absolute privilege. By this unusual approach, the traditional role that it is the defendant who must sustain his affirmative defense of privilege—and not the plaintiff who must negate that defense—is apparently disregarded.^[1]

I

The history of the privileges conferred upon the three branches of Government is a story of uneven development. Absolute legislative privilege dates back to at least 1399.^[2] This privilege is given to Congress in the United States Constitution^[3] and to State Legislatures in the Constitutions of almost all of the States of the Union.^[4] The absolute [p580] immunity arising out of judicial proceedings existed at least as early as 1608 in England.^[5]

But what of the executive privilege? Apparently, the earliest English case presenting the problem of immunity outside the legislative and judicial branches of government is Sutton v. Johnstone, 1 T.R. 493, decided in 1786. There, the plaintiff, captain of a warship, sued the commander-in-chief of his squadron for charging plaintiff, maliciously and without probable cause, with disobedience of orders and putting him under arrest and forcing him to face a court-martial. The Court of Exchequer took jurisdiction of the case but was reversed, 1 T.R. 510, on the ground that purely military matters were not within the cognizance of the civil courts.^[6] During [p581] the next century several other military cases were decided.^[7]

In Chatterton v. Secretary of State for India, [1895] 2 Q.B. 189, the defendant had been apprised that his action with respect to the plaintiff would be made the subject of a parliamentary inquiry. In the communication alleged to be libelous, the defendant told his Under Secretary what answer should be made if the question were asked him in Parliament. The court affirmed dismissal of the complaint relying on Fraser on The Law of Libel and Slander (1st ed.), p. 95, where the author, with no citations, observed, after relating the history of the military cases:

"For reasons of public policy the same protection would, no doubt, be given to anything in the nature of an act of state, e.g., to every communication relating to state matters made by one minister to another, or to the Crown."^[8]

[p582] This was the actual birth of executive privilege in England.

Such was the state of English law when, the next year, this Court decided Spalding v. Vilas, supra. In granting the Postmaster General absolute immunity for "matters committed by law to his control or supervision," this Court relied exclusively on the judicial privilege cases and the English military cases. Thus, leaving aside the military cases, which are unique, the executive privilege in defamation actions would appear to be a judicial creature of less than 65 years' existence. Yet, without statute, this relatively new privilege is being extended to open the possibility of absolute privilege for innumerable government officials.

It may be assumed, arguendo, that a government employee should have absolute immunity when according to his duty he makes internal reports to his superior or to another upon his superior's order. Cf. Taylor v. Glotfelty, 201 F. 2d 51; Farr v. Valentine, 38 App. D.C. 413; DeArnaud v. Ainsworth, 24 App. D.C. 167. This might be a practical necessity of government that would find its justification in the need for a free flow of information within every executive department. It may not be unreasonable to assume that if a maliciously false libel is uttered in an internal report, it will be recognized as such and discredited without further dissemination.

Spalding v. Vilas, supra, presents another situation in which absolute privilege may be justified. There the Court was dealing with the Postmaster General—a Cabinet officer personally responsible to the President of the United States for the operation of one of the major departments of government. Cf. Glass v. Ickes, 73 App. D.C. 3, 117 F. 2d 273; Mellon v. Brewer, 57 App. D.C. 126, 18 F. 2d 168. The importance of their positions in government as policymakers for the Chief Executive and the fact that they have the expressed trust and [p583] confidence of the President who appointed them and to whom they are personally and directly responsible suggest that the absolute protection partakes of presidential immunity. Perhaps the Spalding v. Vilas rationale would require the extension of such absolute immunity to other government officials who are appointed by the President and are directly responsible to him in policy matters even though they do not hold Cabinet positions.^[9] But this extension is not now before us, since it is clear that petitioner Barr was not appointed by the President nor was he directly responsible to the President. Barr was exercising powers originally delegated by the President to the Director of Economic Stabilization who redelegated them to the Director of Rent Stabilization.^[10] And it is not contended that petitioner was under any order to issue a statement in this matter.

I would not extend Spalding v. Vilas to cover public statements of lesser officials. Releases to the public from the executive branch of government imply far greater dangers to the individual claiming to have been defamed than do internal libels. First, of course, a public statement—especially one arguably libelous—is normally [p584] intended for and reaches a larger audience than an internally communicated report. Even if the release can later be shown libelous, it is most unusual for a libeled person to obtain the same hearing that was available for the original press release. Second, a release is communicated to a public in no position to evaluate its accuracy; where the report is made internally, the superior is usually in a position to do so. If the report is false, the superior can undo much of the harm of the report by countermanding it or halting its spread.

Giving officials below cabinet or equivalent rank qualified privilege for statements to the public would in no way hamper the internal operation of the executive department of government, nor would it unduly subordinate the interest of the individual in obtaining redress for the public defamation uttered against him. Cf. Colpoys v. Gates, 73 App. D.C. 193, 118 F. 2d 16.

II

The foregoing discussion accepted for the purpose of argument the majority's statement of the interests involved here. But as so often happens in balancing cases, the wrong interests are being balanced. Cf. Barenblatt v. United States, ante, p. 134 (dissenting opinion). This is not a case where the only interest is in plaintiff's obtaining redress of a wrong. The public interest in limiting libel suits against officers in order that the public might be adequately informed is paralleled by another interest of equal importance: that of preserving the opportunity to criticize the administration of our Government and the action of its officials without being subjected to unfair—and absolutely privileged—retorts. If it is important to permit government officials absolute freedom to say anything they wish in the name of public information, it is at least as important to preserve and [p585] foster public discussion concerning our Government and its operation.

It is clear that public discussion of the action of the Government and its officials is accorded no more than qualified privilege. In most States, even that privilege is further restricted to situations in which the speaker is accurate as to his facts and where the claimed defamation results from conclusions or opinions based on those facts. Only in a minority of States is a public critic of Government even qualifiedly privileged where his facts are wrong.^[11] Thus, at best, a public critic of the Government has a qualified privilege. Yet here the Court has given some amorphous group of officials—who have the most direct and personal contact with the public—an absolute privilege when their agency or their action is criticized. In this situation, it will take a brave person to criticize government officials knowing that in reply they may libel him with immunity in the name of defending the agency and their own position. This extension of Spalding v. Vilas can only have the added effect of deterring the desirable public discussion of all aspects of our Government and the conduct of its officials. It will sanctify the powerful and silence debate. This is a much more serious danger than the possibility that a government official might occasionally be called upon to defend his actions and to respond in damages for a malicious defamation.

III

The principal opinion, while attempting to balance what it thinks are the factors to be weighed, has not effectuated the goal for which it originally strove. [p586] Rather, its result has been an uncertain standard whose effect can unfold only on a case-by-case basis, and which does not provide a guide for executive conduct. But more important, the opinion has set out the wrong interests and by its extension of absolute privilege in this case has seriously weakened another great public interest—honest and open discussion and criticism of our Government.

I would affirm.

Notes

1. See, e.g., Restatement, Torts, § 613, and Prosser, Torts (2d ed. 1955), 629 and cases cited.
2. See Veeder, Absolute Immunity in Defamation: Legislative and Executive Proceedings, 10 Col. L. Rev. 131; 132. See also Tenney v. Brandhove, 341 U.S. 367, 372.
3. U.S. Const., Art. I, § 6.
4. See Tenney v. Brandhove, 341 U.S. 367, 375, n. 5.

   However, this immunity has not been extended to inferior deliberative bodies. As to city councils, see, e.g., Mills v. Denny, 245 Iowa 584, 63 N.W. 2d 222; Greenwood v. Cobbey, 26 Neb. 449, 42 N.W. 413; Ivie v. Minton, 75 Ore. 483, 147 P. 395; but cf. Tanner v. Gault, 20 Ohio App. 243, 153 N.E. 124. See also Weber v. Lane, 99 Mo. App. 69, 71 S.W. 1099 (board of aldermen); Bradford v. Clark, 90 Me. 298, 38 A. 229 (town meeting); Smith v. Higgins, 16 Gray (Mass.) 251 (town meeting).

5. Floyd v. Barker, 12 Co. Rep. 23. See also The King v. Skinner, Lofft 55. An excellent history of the development of this privilege may be found in Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Col. L. Rev. 463. For the development of this privilege in the United States, see Bradley v. Fisher, 13 Wall. 335.
6. This conclusion was justified on the following basis:

   "Commanders, in a day of battle, must act upon delicate suspicions; upon the evidence of their own eye; they must give desperate commands; they must require instantaneous obedience. In case of a general misbehaviour, they may be forced to suspend several officers, and put others in their places.

   "A military tribunal is capable of feeling all these circumstances, and understanding that the first, second, and third part of a soldier is obedience. But what condition will a commander be in, if, upon the exercising of his authority, he is liable to be tried by a common law judicature?

   .....

   "The person unjustly accused is not without his remedy. He has the properest among military men. Reparation is done to him by an acquittal. And he who accused him unjustly is blasted for ever, and dismissed the service." 1 T.R., at 549-550.

   The House of Lords affirmed. 1 Bro. P.C. 76.

7. In Home v. Bentinck, 2 B. & B. 130 (1820), the court upheld a privilege asserted by the defendant against producing in court the document alleged to contain the libel. This effectively foreclosed the action. See also Dickson v. The Earl of Wilton, 1 F. & F. 419 (1859); Keighly v. Bell, 4 F. & F. 763 (1866); Dawkins v. Lord F. Paulet, L.R. 5 Q.B. 94 (1869); Grant v. Secretary of State for India, L.R. 2 C.P.D. 445 (1877). Though this last case was a suit against a civil officer, it arose out of a military situation.
8. In 1895 the Secretary of State for India was an important figure in the Government and was a member of the Cabinet. The Statesman's Year-Book (1895) 10.

   Throughout these years, suits were brought against members of the executive branches of the British Government but were dismissed on the theory that the officer had acted solely as an agent for the Government and therefore was not personally liable. E.g., Macbeath v. Haldimand, 1 T.R. 172 (1786); Gidley v. Lord Palmerston, 3 B. & B. 275 (1822).

9. This might well, for example, include Barr's superior in 1953—the Director of Economic Stabilization.
10. Barr's position as Deputy Director was such, on the date of the libel, that he recognized that he was not then entitled to suspend or fire the respondents and could not do so until several days later. (The Government asserted on oral argument that the full powers of the Director would devolve upon anyone who—by virtue of his superiors' leaving town—was in fact the highest ranking member of the agency at the moment. It was in this light that Barr was "Acting" Director on the date of the libel.) Even after Barr officially became Acting Director on February 9, 1953, the Government admitted that the Director of Economic Stabilization "could have" directed Barr either to make or not to make press releases. When Barr took action against respondents, they appealed the decision to the Director of Economic Stabilization and ultimately were reinstated.
11. An extensive compilation of which States adhere to each view may be found in Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875, 896-897, n. 102,106.