Time Incorporated v. Pape/Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

401 U.S. 279

Time Incorporated  v.  Pape

 Argued: Dec. 16, 1970. --- Decided: Feb 24, 1971

Mr. Justice HARLAN, dissenting.

I would affirm the judgment of the Court of Appeals, essentially for the reasons stated in Judge Duffy's opinion for that court. The treatment of this case by our Court, however, prompts me to venture these additional comments.

I fully agree with the rule first enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that restricts the liability of those who utter defamatory falsehoods regarding public officials. We there recognized that because 'erroneous statement is inevitable in free debate,' id., at 271, 84 S.Ct., at 721, 'neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct.' Id., at 273, 84 S.Ct., at 722. But these considerations did not persuade us to rule that the Constitution grants absolute immunity to everyone, be it the news media or anyone else, who libels a public official, or to conclude that the usual processes of law are inadequate for dealing with this kind of litigation. Rather, we decided that the substantial First Amendment interests implicated in any libel suit of this sort would be adequately served by a constitutional rule that subjects such a statement to the sanctions of the common law of libel only where it was uttered 'with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' Id., at 280, 84 S.Ct., at 726.

The step taken today, whereby this Court undertakes to judge, 'on the specific facts of this case.' ante, at 292, whether a jury could reasonably find that Time magazine's characterization of the Commission's report was sufficiently inaccurate to permit the concomitant finding that it was published with 'malice,' is, in my judgment, not warranted.

I can perceive no rational basis for distinguishing this case from one in which a newspaper or an individual seeks to have this Court review the record upon which a properly instructed jury found liability, where evidence sufficient to support its verdict exists, and where these matters have been reviewed by a court of appeals applying correct legal standards. As I see things, the Court identifies no such distinguishing feature about this case.

While it is true, of course, that this Court is free to re-examine for itself the evidentiary bases upon which rest decisions that allegedly impair or punish the exercise of Fourteenth Amendment freedoms, this does not mean that we are of necessity always, or even usually, compelled to do so. Indeed, it is almost impossible to conceive how this Court might continue to function effectively were we to resolve afresh the underlying factual disputes in all cases containing constitutional issues. Nor can I discern in those First Amendment considerations that led us to restrict the States' powers to regulate defamation of public officials any additional interest that is not served by the actual-malice rule of New York Times, supra, but is substantially promoted by utilizing this Court as the ultimate arbiter of factual disputes in those libel cases where no unusual factors, such as allegations of harassment or the existence of a jury verdict resting on erroneous instructions, cf. New York Times, supra, are present. While I am confident that the Court does not intend its decision to have any such broad reach, I fear that what is done today may open a door that will prove difficult to close.

Having determined that the court below properly defined the quality of proof required of Pape by New York Times and that it applied the correct standard of review in passing upon the trial judge's decision to grant a directed verdict-determinations that I do not think my Brethren dispute-I would stop the inquiry at this point and affirm, the judgment of the Court of Appeals.

Notes