Rosenblatt v. Baer/Opinion of the Court

by William J. Brennan, Jr.

United States Supreme Court

383 U.S. 75

Rosenblatt  v.  Baer

 Argued: Oct. 20, 1965. --- Decided: Feb 21, 1966

A jury in New Hampshire Superior Court awarded respondent damages in this civil libel action based on one of petitioner's columns in the Laconia Evening Citizen. Respondent alleged that the column contained defamatory falsehoods concerning his performance as Supervisor of the Belknap County Recreation Area, a facility owned and operated by Belknap County. In the interval between the trial and the decision of petitioner's appeal by the New Hampshire Supreme Court, we decided New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. We there held that consistent with the First and Fourteenth Amendments a State cannot award damages to a public official for defamatory falsehood relating to his official conduct unless the official proves actual malice-that the falsehood was published with knowledge of its falsity or with reckless disregard of whether it was true or false. The New Hampshire Supreme Court affirmed the award, finding New York Times no bar. 106 N.H. 26, 203 A.2d 773. We granted certiorari and requested the parties to brief and argue, in addition to the questions presented in the petition for certiorari, the question whether respondent was a 'public official' under New York Times and under our decision in Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125; 380 U.S. 941, 85 S.Ct. 1023, 13 L.Ed.2d 961.

The Recreation Area was used principally as a ski resort but also for other recreational activities. Respondent was employed by and directly responsible to the Belknap County Commissioners, three elected officials in charge of the county government. During the 1950's, a public controversy developed over the way respondent and the Commissioners operated the Area; some protested that respondent and the Commissioners had not developed the Area's full potential, either as a resort for local residents or as a tourist attraction that might contribute to the county's taxes. The discussion culminated in 1959, when the New Hampshire Legislature enacted a law transferring control of the Area to a special five-man commission. ^[1] At least in part to give this new regime a fresh start, respondent was discharged.

Petitioner regularly contributed an unpaid column to the Laconia Evening Citizen. In it he frequently commented on political matters. As an outspoken proponent of the change in operations at the Recreation Area, petitioner's views were often sharply stated, and he had indicated disagreement with the actions taken by respondent and the County Commissioners. In January 1960, during the first ski season under the new management, some six months after respondent's discharge, petitiioner published the column that respondent alleges libeled him. In relevant part, it reads:

'Been doing a little listening and checking at Belknap Recreation Area and am thunderstruck by what am learning.

'This year, a year without snow till very late, a year with actually few very major changes in procedure; the difference in cash income simply fantastic, almost unbelievable.

'On any sort of comparative basis, the Area this year is doing literally hundreds of per cent BETTER than last year.

'When consider that last year was excellent snow year, that season started because of more snow, months earlier last year, one can only ponder following question:

'What happened to all the money last year? and every other year? What magic has Dana Beane (Chairman of the new commission) and rest of commission, and Mr. Warner (respondent's replacement as Supervisor) wrought to make such tremendous difference in net cash results?'

The column on its face contains no clearly actionable statement. Although the questions 'What happened to all the money last year? and every other year?' could be read to imply peculation, they could also be read, in context, merely to praise the present administration. The only persons mentioned by name are officials of the new regime; no reference is made to respondent, the three elected commissioners, or anyone else who had a part in the administration of the Area during respondent's tenure. Persons familiar with the controversy over the Area might well read it as complimenting the luck or skill of the new management in attracting increased patronage and producing a 'tremendous difference in net cash results' despite less favorable snow; indeed, witnesses for petitioner testified that they so read the column.

Respondent offered extrinsic proofs to supply a defamatory meaning. These proofs were that the column greatly exaggerated any improvement under the new regime, and that a large part of the community understood it to say that the asserted improvements were not explicable by anything the new management had done. Rather, his witnesses testified, they read the column as imputing mismanagement and peculation during respondent's tenure. Respondent urged two theories to support a recovery based on that imputation.

The first was that the jury could award him damages if it found that the column cast suspicion indiscriminately on the small number of persons who composed the former management group, whether or not it found that the imputation of misconduct was specifically made of and concerning him. ^[2] This theory of recovery was open to respondent under New Hampshire law; the trial judge explicitly instructed the jury that 'an imputation of impropriety or a crime to one or some of a small group that cast suspicion upon all is actionable.' ^[3] The question is presented, however, whether that theory of recovery is precluded by our holding in New York Times that, in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations. 376 U.S., at 290-292, 84 S.Ct., at 731.

The plaintiff in New York Times was one of the three elected Commissioners of the City of Montgomery, Alabama. His duties included the supervision of the police department. The statements in the advertisement upon which he principally relied as referring to him were that 'truckloads of police * * * ringed the Alabama State College Campus' after a demonstration on the State Capitol steps, and that Dr. Martin Luther King had been 'arrested * * * seven times.' These statements were false in that although the police had been 'deployed near the campus,' they had not actually 'ringed' it and had not gone there in connection with a State Capitol demonstration, and in that Dr. King had been arrested only four times. We held that evidence that Sullivan as Police Commissioner was the supervisory head of the Police Department was constitutionally insufficient to show that the statements about police activity were 'of and concerning' him; we rejected as inconsistent with the First and Fourteenth Amendments the proposition followed by the Alabama Supreme Court in the case that '(i)n measuring the performance or deficiencies of * * * groups, praise or criticism is usually attached to the official in complete control of the body,' New York Times Co. v. Sullivan, 273 Ala. 656, 674-675, 144 So.2d 25, 39. To allow the jury to connect the statements with Sullivan on that presumption alone was, in our view, to invite the spectre of prosecutions for libel on government, which the Constitution does not tolerate in any form. 376 U.S., at 273-276, 290-292, 84 S.Ct., at 722, 731. ^[4] We held 'that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.' 376 U.S., at 292, 84 S.Ct., at 732. There must be evidence showing that the attack was read as specifically directed at the plaintiff.

Were the statement at issue in this case an explicit charge that the Commissioners and Baer or the entire Area management were corrupt, we assume without deciding that any member of the identified group might recover. ^[5] The statement itself might be sufficient evidence that the attack was specifically directed at each individual. Even if a charge and reference were merely implicit, as is alleged here, but a plaintiff could show by extrinsic proofs that the statement referred to him, it would be no defense to a suit by one member of an identifiable group engaged in governmental activity that another was also attacked. These situations are distinguishable from the present case; here, the jury was permitted to infer both defamatory content and reference from the challenged statement itself, although the statement on its face is only an impersonal discussion of government activity. To the extent the trial judge authorized the jury to award respondent a recovery without regard to evidence that the asserted implication of the column was made specifically of and concerning him, we hold that the instruction was erroneous. ^[6] Here, no explicit charge of peculation was made; no assault on the previous management appears. The jury was permitted to award damages upon a finding merely that respondent was one of a small group acting for an organ of government, only some of whom were implicated, but all of whom were tinged with suspicion. In effect, this permitted the jury to find liability merely on the basis of his relationship to the government agency, the operations of which were the subject of discussion. It is plain that the elected Commissioners, also members of that group, would have been barred from suit on this theory under New York Times. They would be required to show specific reference. Whether or not respondent was a public official, as a member of the group he bears the same burden. ^[7] A theory that the column cast indiscriminate suspicion on the members of the group responsible for the conduct of this governmental operation is tantamount to a demand for recovery based on libel of government, and therefore is constitutionally insufficient. Since the trial judge's instructions were erroneous in this respect, the judgment must be reversed.

Respondent's second theory, supported by testimony of several witnesses, was that the column was read as referring specifically to him, as the 'man in charge' at the Area, personally responsible for its financial affairs. Even accepting respondent's reading, the column manifestly discusses the conduct of operations of government. ^[8] The subject matter may have been only of local interest, but at least here, where publication was addressed primarily to the interested community, that fact is constitutionally irrelevant. The question is squarely presented whether the 'public official' designation under New York Times applies.

If it does, it is clear that the jury instructions were improper. Under the instructions, the jury was permitted to find that negligent misstatement of fact would defeat petitioner's privilege. That test was rejected in Garrison, 379 U.S., at 79, 85 S.Ct., at 218, where we said, 'The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.' The trial court also charged that '(d)efamatory matter which constitutes comment rather than fact is justified if made without malice and represented fair comment on matters of public interest,' and defined malice to include 'ill will, evil motive, intention to injure. * * *' This definition of malice is constitutionally insufficient where discussion of public affairs is concerned; '(w)e held, in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true.' Garrison, 379 U.S., at 74, 85 S.Ct., at 215.

Turning, then, to the question whether respondent was a 'public official' within New York Times we reject at the outset his suggestion that it should be answered by reference to state-law standards. States have developed definitions of 'public official' for local administrative purposes, not the purposes of a national constitutional protection. ^[9] If existing state-law standards reflect the purposes of New York Times, this is at best accidental. Our decision in New York Times, moreover, draws its force from the constitutional protections afforded free expression. The standards that set the scope of its principles cannot therefore be such that 'the constitutional limits of free expression in the Nation would vary with state lines.' Pennekamp v. State of Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295. ^[10]

We remarked in New York Times that we had no occasion 'to determine how far down into the lower ranks of government employees the 'public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included.' 376 U.S., at 283, n. 23, 84 S.Ct., at 727. No precise lines need be drawn for the purposes of this case. The motivating force for the decision in New York Times was twofold. We expressed 'a profound national commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open, and that (such debate) may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' 376 U.S., at 270, 84 S.Ct., at 721. (Emphasis supplied.) There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. ^[11]

This conclusion does not ignore the important social values which underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation. But in cases like the present, there is tension between this interest and the values nurtured by the First and Fourteenth Amendments. The thrust of New York Times is that when interests in public discussion are particularly strong, as they were in that case, the Constitution limits the protections afforded by the law of defamation. Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present ^[12] and the New York Times malice standards apply. ^[13]

As respondent framed his case, he may have held such a position. Since New York Times had not been decided when his case went to trial, his presentation was not shaped to the 'public official' issue. He did, however, seek to show that the article referred particularly to him. His theory was that his role in the management of the Area was so prominent and important that the public regarded him as the man responsible for its operations, chargeable with its failures and to be credited with its successes. Thus, to prove the article referred to him, he showed the importance of his rule; the same showing, at the least, raises a substantial argument that he was a 'public official.' ^[14]

The record here, however, leaves open the possibility that respondent could have adduced proofs to bring his claim outside the New York Times rule. Moreover, even if the claim falls within New York Times, the record suggests respondent may be able to present a jury question of malice as there defined. Because the trial here was had before New York Times, we have concluded that we should not foreclose him from attempting retrial of his action. We remark only that, as is the case with questions of privilege generally it is for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official.' ^[15]

The judgment is reversed and the case remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion.

It is so ordered.

Reversed and remanded.

Notes

1. N.H.Laws 1959, c. 399.
2. The article purports to compare performance of the ski Area under the direction of unnamed persons during the prior year with performance of the Area under the direction of an identified group-a group which includes not only the new manager of the Area, but the new commissioners as well.
3. See generally Lewis, The Individual Member's Right to Recover for a Defamation Leveled at the Group, 17 U.Miami L.Rev. 519, 523-525 (1963).
4. See Kalven, The New York Times Case: A Note on 'The Central Meaning of the First Amendment,' 1964 Sup.Ct.Rev. 191, 207 210.
5. Such recovery would, of course, be subject to a showing of actual malice if the individual were a 'public official' within the meaning of New York Times.
6. It might be argued that the charge instructed the jury to award recovery only if it found that the libel was aimed at Mr. Baer or if it found the libel aimed at Mr. Baer, along with a few others. Such a charge might not be objectionable; we do not mean to suggest that the fact that more than one person is libeled by a statement is a defense to suit by a member of the group. However, we cannot read the charge as being so limited. The jury was told:
7. See Gilberg v. Goffi, 21 A.D.2d 517, 251 N.Y.S.2d 823 (1964), aff'd, 15 N.Y.2d 1023, 260 N.Y.S.2d 29, 207 N.E.2d 620 (1965); Comment, 114 U.Pa.L.Rev. 241 (1965).
8. The New Hampshire court fully recognized that this was the subject of the column. It instructed the jury:
9. See, e.g., Opinion of the Justices, 73 N.H. 621, 62 A. 969, 5 L.R.A., N.S., 415 (1906).
10. For similar reasons, we reject any suggestion that our references in New York Times, 376 U.S., at 282, 283, n. 23, 84 S.Ct., at 727, and Garrison, 379 U.S., at 74, 85 S.Ct., at 215, to Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, mean that we have tied the New York Times rule to the rule of official privilege. The public interests protected by the New York Times rule are interests in discussion, not retaliation, and our reference to Barr should be taken to mean no more than that the scope of the privilege is to be determined by reference to the functions it serves. See Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 590 591 (1964).
11. Compare, e.g., Clancy v. Daily News Corp., 202 Minn. 1, 277 N.W. 264 (1938); Tanzer v. Crowley Publishing Corp., 240 App.Div. 203, 268 N.Y.S. 620 (1934); Poleski v. Polish Am. Publishing Co., 254 Mich. 15, 235 N.W. 841 (1931); 1 Harper & James, Torts § 5.26, pp. 449-450 (1956); Prosser, Torts § 110, p. 815 (3d ed. 1964); Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 896-897, 901-902 (1949); Comment, 113 U.Pa.L.Rev. 284, 288 (1964); Note, 18 Vand.L.Rev. 1429, 1445 (1965).
12. We are treating here only the element of public position, since that is all that has been argued and briefed. We intimate no view whatever whether there are other bases for applying the New York Times standards-for example, that in a particular case the interests in reputation are relatively insubstantial, because the subject of discussion has thrust himself into the vortex of the discussion of a question of pressing public concern. Cf. Salinger v. Cowles, 195 Iowa 873, 889, 191 N.W. 167, 173-174 (1922); Peck v. Coos Bay Times Publishing Co., 122 Or. 408, 420-421, 259 P. 307, 311-312 (1927); Coleman v. MacLennan, 78 Kan. 711, 723-724, 98 P. 281, 285-286, 20 L.R.A., N.S., 361 (1908); Pauling v. News Syndicate Co., 335 F.2d 659, 671 (C.A.2d Cir. 1964).
13. It is suggested that this test might apply to a night watchman accused of stealing state secrets. But a conclusion that the New York Times malice standards apply could not be reached merely because a statement defamatory of some person in government employ catches the public's interest; that conclusion would virtually disregard society's interest in protecting reputation. The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scruting and discussion occasioned by the particular charges in controversy.
14. It is not seriously contended, and could not be, that the fact respondent no longer supervised the Area when the column appeared has decisional significance here. To be sure, there may be cases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times rule. But here the management of the Area was still a matter of lively public interest; propositions for further change were abroad, and public interest in the way in which the prior administration had done its task continued strong. The comment, if it referred to respondent, referred to his performance of duty as a county employee.
15. 1 Harper & James, Torts § 5.29 (1956); Prosser, Torts § 110, p. 823 (3d ed. 1964), Restatement, Torts § 619. Such a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions. Cf. Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460; New York Times, 376 U.S., at 285, 84 S.St. at 728.