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Chapter 15

MEDIA AND COMMUNICATION


TORTS

§ 15.01 Defamation

[A] Generally
INTRODUCTION TO DEFAMATION
A childhood expression is that “sticks and stones may break my bones but names will
never hurt me.” But adults — and even children — know better. Words or pictures can
lacerate like fists. The law of defamation recognizes, at least, that the harmful effects of
certain statements about others may seriously tarnish their reputations. This branch of
the law is quite complicated. Here are the simplest parts of the defamation skeleton:
(1) Defamation deals with injuries to reputation. Restatement (Second) of Torts § 559
(1977) defines a communication as “defamatory” if “it tends so to harm the reputation
of another as to lower him in the estimation of the community or to deter third persons
from associating or dealing with him.”
(2) A defamation must be published — i.e., communicated — to a person other than
the person defamed. Restatement (Second) § 577 & cmt. b. Most litigation on al-
legedly defamatory material deals with statements printed or broadcast by mass media,
but a casual statement by one person to another about a third person is sufficient for
publication.
The most modern issues in this category concern the nature of publication in the age
of cyberspace. The Internet has generated, among other issues, the question of who a
“publisher” is. Section 320 of the Communications Decency Act says that “[n]o
provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.” This
decision effectively overruled a New York trial court decision that said that a computer
network could be considered a publisher of allegedly libelous statements posted by an
unidentified user of one of the defendant’s bulletin boards.1 There has been criticism of
the statute on the ground that it protects “cyberspace intermediaries” that “have some
ability to prevent or at least stem serious online defamation injury.”2
(3) Sometimes there are important legal consequences that turn on the question of
whether defamatory material is libel or slander. While “[i]t is impossible to define and

1. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 3323710 (N.Y. Sup. Ct. 1995).
2. Susan Freiwald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Li-
ability for Defamation, 14 Harv. J.L. & Technol. 569, 585, 636–37 (2001).
727
728 15 · MEDIA AND COMMUNICATION TORTS

difficult to describe with precision” these two categories, see Restatement (Second)
§ 568 cmt. b, the rough classification scheme is this: Libel is “[t]he publication of
defamatory matter by written or printed words,” see id. cmt. d, whereas slander is spo-
ken words. Conceptually, radio and television present a borderline case, but the Re-
statement settles the question by calling broadcast defamation libel. Id. § 568A.
Now things get more complicated. The following materials track these questions:
• Is the material sued upon defamatory? This issue presents a number of problems re-
lated to technical standards for both slander and libel. First, there is the requirement that
slander plaintiffs must classify the alleged defamation in particular categories in order to
avoid having to prove “special damages.” This is explained in the Note on Slander Per Se
and Special Damages, infra subpart [2]. Second, there is a rule that has required libel
plaintiffs to prove “special damages” when suing on a publication that was not “defamatory
on its face,” that is, a publication concerning which one must show extrinsic facts in order
to demonstrate the defamatory meaning. (See Menefee v. Codman, infra subpart [3].)
• Did the communication sufficiently refer to the plaintiff? (See Loeb v. Globe News-
paper Co., infra subpart [1].)
• Was the communication one of “fact” or “opinion”? The Restatement (Second) says
that “[a] defamatory communication may consist of a statement of fact,” § 565, or of “a
statement in the form of an opinion,” but a statement of the latter kind “is actionable
only if it implies the allegation of undisclosed defamatory facts as the basis for the opin-
ion,” § 566. (The material infra § 15.01[C] explores the fact/opinion distinction.)
• Was the defendant “privileged” to make the communication?
Some of the privileges against defamation actions are absolute, such as those con-
nected with judicial proceedings, an arena in which the privilege exists not only for
judges, but for witnesses and jurors. There is also absolute immunity for defamations
uttered in the course of legislative proceedings, and for officials of government agencies
in certain circumstances, see infra § 18.03.
There are also a number of qualified privileges. Some depend on the defendant’s in-
terest, some depend on the interest of the listener or reader, and some involve a com-
mon interest in the publisher and the person to whom the defamation is published. An
example of a common interest is a case in which the publisher and the recipient are
both members of the same business firm, and the defamatory material concerns a per-
son who is applying to that company for a job. Generally, a qualified privilege of this
kind must be exercised “in a reasonable manner and for a proper purpose.” As to the
grounds of belief, many courts require that the defendant have “probable cause” for be-
lieving the statement to be true; others require only “good faith.” See W. Prosser &
W.P. Keeton on Torts 832–35 (5th ed. 1984).
One qualified privilege, on which much important recent litigation has centered, ap-
plies unless the plaintiff shows that the defendant acted with malice, that is, at least
recklessly of the truth. This is the privilege spelled out in New York Times v. Sullivan,
376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), with respect to defamations of
public officials relating to their official conduct, and then elaborated in the Butts-Walker
cases, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), as to public figures.
The material infra § 15.01[B] deals with the refinements introduced into the law of
defamation by the Supreme Court’s decision in Gertz v. Robert Welch, published in
1975, and later precedents. That body of law deals with constitutional privileges, stan-
dards of liability and damages rules.
§ 15.01 DEFAMATION 729

[1] Identification of the Plaintiff


LOEB v. GLOBE NEWSPAPER CO.
United States District Court, District of Massachusetts
489 F. Supp. 481 (1980)

ZOBEL, District Judge.


Plaintiffs in these cases are the publisher (Loeb v. Globe Newspaper Co., . . . ), editors
(Bucknam v. Globe Newspaper Co. . . . ), and other employees (Adams, et al. v. Globe
Newspaper Co. . . . ) of the Manchester (New Hampshire) Union Leader, a daily newspa-
per. They claim that the Boston Globe, another daily newspaper, “maligned” and “de-
famed” them in its editorials and in a syndicated column. The cases are before the court
on defendant’s motions for summary judgment. . . .
In the winter of 1972, the Manchester Union Leader received nationwide attention
for its coverage of the New Hampshire Presidential Primary. During the course of the
primary, the publisher of the newspaper engaged in a celebrated exchange with one
candidate, and, as appears from the exhibits, the newspaper was dominated by colorful
reporting and commentary on the primary, in the course of which the Union Leader it-
self became a popular topic of media commentary. The newspaper was the subject of at
least three pieces in the Boston Globe, and those publications gave rise to the instant
claims.
Plaintiffs in Bucknam and Adams, respectively Union Leader editors and staff mem-
bers, complain of the same statements, both made in an “Opposite the Editorial Page”
column in the March 7, 1972 issue of the Boston Globe: that the Union Leader is “prob-
ably the worst newspaper in America”, and that the publisher of the Union Leader “runs
a newspaper by paranoids for paranoids.” In Loeb, the publisher of the Union Leader
relies on the same statements as well as six others. Loeb includes four excerpts from a
March 7, 1972 editorial: that he had been fined three million dollars in a prior legal ac-
tion, that he “edits his paper like a 19th Century yellow journal”, that his views are “ven-
omous” and that his newspaper is a “daily drip of venom”. In addition, he complains of
a Globe cartoon of March 1, 1972 . . . in which he is depicted with a cuckoo springing
from his forehead. He also complains of a statement in a March 9, 1972 editorial that he
“never backed a presidential winner.” In each of the three claims, plaintiffs argue that
the publications were false and derogatory and that professional and social harms re-
sulted from publication.
...
These actions are brought by three Union Leader editors (Bucknam) and twenty-
four other employees (Adams), among them office boys, reporters and assistant editors,
who claim that two excerpts of a 1972 Globe editorial set out above are false and
derogatory statements which libel them.
In support of its motions for summary judgment, defendant argues that the
claims are barred as a matter of law because the excerpts in question are not suffi-
ciently specific in their reference to plaintiffs to support tort liability. Defendant is
correct.
A “guiding principle” in group libel law was not long ago enunciated by the Court of
Appeals for the First Circuit thus: “Defamation of a large group gives rise to no civil ac-
tion on the part of an individual member of the group unless he can show special appli-
cation of the defamatory matter to himself,” Arcand v. Evening Call Pub. Co., 567 F.2d
730 15 · MEDIA AND COMMUNICATION TORTS

1163, 1164 (1st Cir. 1977), citing, inter alia, Restatement, Torts, Second, § 564A, Com-
ment a; Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y.1952).
In Adams, the twenty-four plaintiffs represent a small group of employees from the
total 325 individuals employed by the Union Leader in March 1972. They state with-
out explanation that “the libel was directed at the editorial management and staff ”, of
which they profess to be members, but beyond that assertion venture no support for a
claim of the “special application of the defamatory matter to (themselves),” Arcand v.
Evening Call Pub. Co., 567 F.2d at 1164. See also Restatement, Torts (Second)
§ 564A(b) (plaintiff must show that “the circumstances of publication reasonably give
rise to the conclusion that there is particular reference to . . . (him)”). In Arcand v.
Evening Call Pub. Co., supra, the Court supported the predisposition against group
libel with the holding of Neiman-Marcus v. Lait, supra, a case very similar on its facts
to Adams and Bucknam. In Neiman-Marcus, the Court observed that the “complaint
that a group of 382 saleswomen had been generally called prostitutes was dismissed
because (the) group was too large to infer defamation of a member thereof ”, 567 F.2d
at 1164. There is little to distinguish Neiman-Marcus from this case except, possibly,
that the insufficiently particular reference to “saleswomen” in Neiman-Marcus was far
more specific than either of the general characterizations of the Union Leader. The
publication in question does not reasonably give rise to the conclusion that there is
“special application”, Arcand v. Evening Call Pub. Co., supra, at 1164 or “particular
reference”, Restatement, Torts, Second, § 564A(b) to these twenty-four office boys, re-
porters and assistant editors, or to any of them. No tort liability can therefore be held
to lie, and with respect to their claim, defendant’s motion for summary judgment is
allowed.
In Bucknam, three of the Union Leader’s eight editors at the time of the alleged
libel asserted claims identical to those set forth in Adams. The claims differ, presum-
ably, because these plaintiffs are editors, and it may be argued as an alternative argu-
ment to that made in Adams that the Bucknam plaintiffs would be likelier targets of a
general criticism of the newspaper by virtue of their greater authority. Nevertheless,
neither pleadings nor affidavits suggest that the Globe text provides a reasonable basis
to focus on these three men, and as to these three editors no “special application” or
“particular reference” can be reasonably inferred from the general commentary pub-
lished in the Globe.
Arcand v. Evening Call Pub. Co., supra, defines a “second principle” of group
libel, that a cause of action may lie “if a defamatory statement applies to all members
of a small group”. 567 F.2d at 1164. However, a claim cannot come within this sec-
ond principle merely by denominating a small subset of a large group of plaintiffs,
unless the small group so defined reasonably appears to have been identified by the
text. Because no “special application” or “particular reference” to this group of three
plaintiffs can be inferred from the Globe text, there can be no claim of defamation of
“all members of a small group”, Arcand v. Evening Call Pub. Co., 567 F.2d at 1164.
Plaintiffs in Bucknam are under the same duty as those in Adams to establish tort li-
ability by supporting “special application” or “particular reference” with respect to
the individuals denominated as plaintiffs. Because there is no support for such a
claim, and because no particular reference to these plaintiffs can be reasonably in-
ferred from the text, the claim in Bucknam, like that in Adams, is insufficient to give
rise to tort liability. Defendant’s motion for summary judgment in Bucknam is ac-
cordingly allowed.
...
§ 15.01 DEFAMATION 731

NOTES
(1) Why were the claims of the three editors in the Bucknam branch of the case in-
sufficient as a matter of law? Should not a jury have been able to decide whether there
was sufficient reference to them?
(2) Perhaps the most obvious case for a defendant on the identification issue is
Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893 (W.D. Mich. 1980),
which arose from a show called “The Guns of Autumn,” a “graphic portrayal of men
hunting and killing game animals.” The plaintiffs alleged that the defendants had set out
to “discredit, malign, downgrade, ridicule and vilify the American sport hunter and es-
pecially the more than one million sport hunters within the State of Michigan,” who
four named plaintiffs sought to represent. Held, with respect to the branch of the suit
on behalf of the million hunters, “the defamation of a group this large can have no per-
sonal application to individual members.”
(3) Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952) is, through modern eyes, the
epitome of political incorrectness, but it is also a textbook case on the identification issue.
The basis for the case was a book titled U.S.A. Confidential, which among other things
discussed sexual practices in Dallas around 1950. The holdings occupy a spectrum of law:
(a) “Some Neiman models are call girls — the top babes in town.” The plain-
tiffs in this group were nine individual models who were the “entire group of
models” when the book was published. On this count, the defendant did not
even move to dismiss. Id. at 316 n.1.
(b) Regarding the Neiman men’s store, “most of the sales staff are fairies.”
Fifteen salesmen of a total of 25 in the men’s store sued. Employing the stan-
dards of the day as to what constituted defamation, the court concluded that
there was sufficient identification here, saying that “[a]n imputation of gross
immorality to some of a small group casts suspicion upon all, where no at-
tempt is made to exclude the innocent.” The court added that if the defendants’
failure to move to dismiss the claim concerning the models was “a concession
of a valid cause of action,” it was “difficult to perceive a legalistic distinction be-
tween the statements that ‘some Neiman models are call girls’ and ‘most of the
sales staff are fairies.’” Id. at 315–316 & n.1.
(c) The authors also wrote, “[t]he salesgirls are good, too — pretty, and
often much cheaper [than the models] — twenty bucks on the average.” As
noted in Loeb, given that there were 382 saleswomen, the Neiman-Marcus
court concluded that there was no identification: “[n]o reasonable man would
take the writers seriously and conclude from the publication a reference to any
individual saleswoman.” Id. at 316.
(4) A magazine published an article on teenagers’ sexual conduct with the thesis “that
contemporary teenagers ‘are both sexually advanced . . . and sexually daring.’” A large
photograph with the article, covering most of two pages, showed five people at a prom,
three of whom were smoking and one drinking from a plastic cup. The fifth student was
the plaintiff, “looking in the direction of the camera with an apparently friendly expres-
sion.” She wore “a black sleeveless dress and [was] neither drinking nor smoking.” Be-
neath the photograph and the headlines and first parts of the text of the article was a “dis-
claimer” in small italic type that said that “[t]he individuals pictured are unrelated to the
people or events described in this story” and said that “[t]he names of the teenagers inter-
viewed for the story have been changed.” What result, on the plaintiff’s defamation claim?
732 15 · MEDIA AND COMMUNICATION TORTS

—————

[2] The Slander Rules


PROBLEM*
Plaintiff suffers from a congenital defect that has resulted in the shortening of his left
leg. In June 1983, he began driving and performing promotion work for defendant
Celebrity Limousine Services, Inc., which is owned by defendants Richard Dickes and
John K. Eshleman. Plaintiff was to be paid $200 per week plus fifteen percent of the
gross receipts Celebrity secured from plaintiff ’s efforts.
In July, 1983, the production company for the play Private Lives retained Celebrity to
provide limousine services while the play was running in Philadelphia. Plaintiff was as-
signed to meet certain members of the company, including Richard Burton and Brook
Williams, at 30th Street train station and drive them to the Palace Hotel. Two days later,
on July 19, 1983, plaintiff drove Williams and Sally Burton, Burton’s wife, to a supermar-
ket, where he helped his passengers carry packages to the car. Later that same day, plaintiff
drove Burton, Mrs. Burton, and Williams to other stores and returned them to the hotel.
Plaintiff alleges that on July 20, 1983, Dickes told him that he would be reassigned
from the Burton job, but would continue to drive for the rest of the production com-
pany. He further alleges that Williams asked Celebrity to remove plaintiff as the driver
for the Burton job because the party was embarrassed to have a person who walked with
a limp carrying packages for them. According to plaintiff, Burton said that he, his wife,
and Williams did not feel comfortable riding with a handicapped driver, and then re-
quested that Dickes not allow the media to know of his dissatisfaction with plaintiff. . . .
Plaintiff ... alleges that Burton and Williams published statements that were slanderous
per se and made with the intent to humiliate plaintiff and cause him emotional distress.
* * *
Putting aside technical questions of what is “slanderous per se,” should the plaintiff
be able to recover money from Burton and Williams for their statements about him?

NOTE ON SLANDER PER SE AND SPECIAL DAMAGES


The traditional analysis of slander includes four categories known as “slander per se.”
Historically, it was necessary for a claim of slander to fit into one of these categories for
it to be actionable without proof of “special damages,” i.e., specific pecuniary loss. The
magic categories include the imputation of unchastity to a woman and the imputation
that the plaintiff committed a crime. The other “per se” classifications are the imputa-
tion of a loathsome disease, and the utterance of a statement that tends to injure one in
his business, trade, profession or office. The importance of fitting a plaintiff ’s claim into
a “per se” category may be illustrated by noting that emotional distress alone will not be
characterized as “special damages.” See, e.g., W. Prosser & W.P. Keeton on Torts 794
(5th ed. 1984). Thus, even an extraordinary insult that in fact wounds the plaintiff
deeply would not survive a directed verdict motion if it does not classify as slander per
se, and if the claimant is unable to show pecuniary loss he will not be able to recover.
“Special damages,” in the particular context of defamatory remarks, means “a partic-
ular loss, of a material nature, supported by specific evidence.” 2 Fowler Harper,

* Taken from a judicial opinion.


§ 15.01 DEFAMATION 733

Fleming James, & Oscar Gray, Law of Torts § 5.14 (1986). General damage to repu-
tation, unsupported by concrete evidence of probable injury like loss of business re-
ceipts attributable to the defamation, will not make a case where the law requires a
showing of “special damages.”

NOTES
(1) A California court ruled that words not slanderous “on their face” may nonethe-
less be slanderous per se in light of extrinsic circumstances. The occasion was a case
with unusual facts involving a dispute between neighboring business owners. While the
plaintiff, a car dealer, was appearing in a live television advertisement, the defendant
angrily strode into the picture saying, “You son of a bitch.” The court acknowledged
that the words “[l]iterally . . . imply a miracle of nature,” and did not charge a crime, nor
lack of chastity. Still, “after giving the matter considerable thought,” the court decided
that the words could have been understood under the circumstances to signify the
plaintiff ’s untrustworthiness as a merchant. White v. Valenta, 44 Cal. Rptr. 241 (Cal. Ct.
App. 1964).
(2) Suppose that A falsely asserts that B authorized the signing of a letter that would
have illegally released the funds of C from a commodities account, the effect of which
would have been that B was embezzling money from C, who was trusting B with his in-
vestments. Suppose further that the letter did not accomplish its allegedly larcenous
purpose but that A’s remark about B caused C to fire him as his investment adviser. Was
A’s remark about B slander per se?
(3) The language, “You’re not so smart. Your wife is an ex-whore from Butte, Mon-
tana,” attracts the slander per se label in Hollman v. Brady, 233 F.2d 877 (9th Cir. 1956).
The plaintiff alleged that these words caused her husband to doubt her when he became
intoxicated and to abuse her verbally.
(4) Should the oral assertion that someone is a “member of the Mafia” be actionable
without a showing of special damages?
(5) The court mixed common sense psychology with slander law in Stanley v. Taylor,
4 Ill. App. 3d 98, 278 N.E.2d 824, cert. denied, 409 U.S. 983 (1972). In that case the de-
fendant, a school teacher angered by what she considered her principal’s lack of courage
in decision-making, told him “[y]ou are just like that old Lee Harvey Oswald that shot
and killed President Kennedy, and that old Jack Ruby who shot and killed him in Dal-
las.” She later repeated similar references at least twice, and the jury found that these ut-
terances were worth $75,775 to the plaintiff. However, the appellate court reversed. It
held that the words were not actionable per se under the circumstances, noting that the
outburst was “spontaneous and made directly to plaintiff and was obviously more
thoughtless than anything else, and a considered evil intention to defame is not easily
imputed therefrom.” The circumstances would have made it “apparent to the observer
that what was said was nothing more than an irrational argumentative characterization
not worthy of serious consideration.”

[3] The Basic Libel Rules


PROBLEM
The following passage appears in a decision on a suit by Robert Guccione, the pub-
lisher of Penthouse magazine.
734 15 · MEDIA AND COMMUNICATION TORTS

In the “Bits & Pieces” section of its November 1983 issue, Hustler printed a
half-page article by Flynt that commented on Guccione’s practice of being
photographed, fully clothed, with naked Penthouse models. The article, enti-
tled “What a Ham!” and labeled “Editorial opinion,” was accompanied by a
photo from the September 1983 issue of Penthouse, depicting a clothed Guc-
cione with his arm around an unclothed model sitting on his knee. The article
included the following sentence: “Considering he is married and also has a live-
in girlfriend, Kathy Keeton . . . we wonder if he would let either of them pose
nude with a man” (elipsis in original). Guccione contends primarily that the
quoted language falsely accuses him of committing adultery in 1983, when the
article appeared. He also suggests that it falsely implies that he was then living
with his wife and girlfriend simultaneously. It is undisputed that Robert and
Muriel Guccione married in 1956, separated in 1964, and divorced in 1979;
Guccione has not remarried. It is also undisputed that Guccione has cohabited
with Kathy Keeton since 1966.
—————
What will be the issues of libel law?

MENEFEE v. CODMAN
California District Court of Appeal
155 Cal. App. 2d 396, 317 P.2d 1032 (1957)

VAN DYKE, PRESIDING JUSTICE.


This is an appeal from a money judgment on one count of respondent’s complaint
and from an order granting a new trial on the remaining two counts as to which the
jury had returned defense verdicts. The action was for libel.
Respondent is a resident of Fair Oaks community, near Sacramento. Since 1948 her
husband has published a weekly newspaper for which respondent wrote a column deal-
ing with shopping news and her personal thoughts and observations. The Menefees had
four young children. In addition to her household duties and her work on the newspa-
per, respondent also taught psychology part time at Sacramento State College. She par-
ticipated actively in community affairs and bore an excellent reputation as housewife,
mother, church attendant, teacher and writer.
Appellant is a long-time resident of Fair Oaks community. She is descended from a
pioneer family, is a member of the Daughters of the American Revolution, owns prop-
erty in excess of $100,000, and has long interested herself in community affairs, in
which she generally takes strong partisan positions and concerning which she has a pen-
chant for public utterances, both verbal and in the form of long letters to the editors of
newspapers. She sometimes publishes and circulates tracts of her own. She is an influ-
ential member of her community.
Count I of the complaint herein charged that appellant wrote and published of re-
spondent the following:
Seems strange that such an obscure little person as “plain Audrey” should as-
sume such a responsibility. (“How one small head . . .” . . . Some of us here think
that plain Audrey . . . should have been named ‘Narcissus’. Hunt up your psy-
chology textbooks for that one — . . . )
§ 15.01 DEFAMATION 735

Will plain Audrey’s “Operation Europe” or “Mission to Europe” include other


activities besides Telling the World how to become popular in a small town (or is
Audrey really qualified to advise them?) and how to run a rural newspaper?
The second count averred that appellant wrote and published of respondent the
following:
Plain Audrey’s Trip to Europe still is causing a lot of local yokel comment when-
ever mentioned. We see a late movie advertised — could that have been the real
reason Plain Audrey went to Europe? The movie is titled “Under the Paris
Sky” — at the Guild Theatre, 35th and Broadway. The gal on the advertisement
looks as though she wore a dirndl. When we come across Plain Audrey’s col-
umn on Paris, where she tells about her trip to the water front, then we’ll know.
Meanwhile Plain Audrey’s water front “coverage” will intrigue us. But what we
all want to know is, who covered Audrey while Audrey covered the water front?
Surely Audrey didn’t slip along uncovered — no, she told us she wore a dirndl
and an old blouse. Oh, well, we were just reminded of that old game about who
took care of the caretaker’s daughter. We just changed the wording.
By the third count, respondent alleged that appellant wrote and published of and
concerning her, the following:
The San Juan Record’s Associate Editor, no less! reported on her recent trip to
Europe that she wore an old blouse and dirndl (was it? or slacks?) along the
Paris waterfront. We presume she was “covering the waterfront”? We feel sorry
indeed that she didn’t have proper clothes for this assignment, and we venture
to suggest that the Editor, Boss, Dear Selden or what-you-prefer open a charge
account at I. Magnin’s (that is, if his credit rates that good), and then his hard-
working lille wife won’t have to slink along the waterfront in an outdated
dirndl (if that’s what she wore?).
Sample Magnin advertising leaflet attached — it says, “A fulfillment of your
most luxurious dreams” — and these dreams go as high as $69.95 for a “perma-
nently pleated” gown. Time O’Day indicated in advertisement.
It was alleged that there was attached to said writing, and addressed and mailed
therewith, an advertisement for nightgowns and negligees. The advertisement con-
tained pictures of ladies in various and sundry types and designs of nightgowns, neg-
ligees or other bedroom attire.
Alleging in each count that she had been an instructor and during a part of the years
of 1951 and 1952 had been engaged in the occupation and profession of Associate Pro-
fessor on a part-time basis at the Sacramento State College, that she had for several years
been engaged in the occupation of Women’s Editor and Associate Editor of a newspaper
of general circulation, to-wit, the San Juan Record, that at all times she possessed and
enjoyed a good name and reputation and a wide following of readers in Sacramento
County, respondent asserted that as a natural and proximate result of the alleged publi-
cations she had been greatly injured and prejudiced in her reputation, in her calling, oc-
cupation and profession as an instructor, editor and columnist, and had lost, and would
continue to lose, gains and profits which otherwise would have accrued to her in her said
calling, occupation and profession to her damage in the sum of $15,000. Respondent
further alleged in each count that by reason of the publications she had been caused to
suffer grievous mental suffering and humiliation to her damage in the further sum of
$15,000, and that the publications had been made maliciously with the intent to injure
her; wherefore she demanded exemplary and punitive damages.
736 15 · MEDIA AND COMMUNICATION TORTS

Appellant demurred generally to the pleading, contending that the alleged defamatory
publications were each not libelous per se or libelous on the face; that only general dam-
ages, as opposed to special damages, were pleaded and, therefore, that no cause of action
was stated. The demurrers were overruled. Throughout the trial this contention of ap-
pellant was asserted by her and it here constitutes one of the major issues on appeal.
In 1944, there was published in the Southern California Law Review, Volume 17,
Page 347, an article by Professor Charles E. Carpenter, the first paragraph of which
reads as follows:
The well established historical distinction between libel and slander is al-
ready, by reason of its artificial, illogical and unsound character, sufficiently
confusing. But the existing confusion has been increased by the wholly unwar-
ranted doctrine of “libel per se,” which has recently arisen in California and
several other States. This doctrine is to the effect that, if the publication is
defamatory on its face — that is if extrinsic circumstances are not necessary to
reveal its defamatory character — it is “libelous per se” and an action may be
maintained without alleging or proving special damages. If the defamatory
character of the publication is not obvious on its face but is hidden and re-
quires inquiry into extrinsic circumstances to make it so, then it is not action-
able unless special damages are alleged and proved. A peculiarity of the situa-
tion is that the parents of this odd creature — the courts — do not realize,
despite the labor pains of its birth, that they have brought forth a child. This
article is written for the benefit of lawyers and courts of the States that have
produced the new offspring, so that they may see that it is a new creature, and
that it is ugly and illegitimate and ought promptly to be strangled.
As though fearful that the attack of Professor Carpenter and other law writers upon
the misbegotten infant’s right to live might result in judicial filicide, the Legislature in
1945 legitimated the child by enacting Chapter 1489 of the statutes of that year. Therein
it declared that a libel which is defamatory without the necessity of explanatory matter,
such as inducement, innuendo, or other extrinsic fact, is said to be a libel on its face;
that defamatory language not libelous on its face is not actionable unless the plaintiff al-
leges and proves that he has suffered special damage as a proximate result thereof; that
special damage consists of all damages which plaintiff alleges and proves that he has suf-
fered in respect to his property, business, trade, profession or occupation, including
such amounts of money as the plaintiff alleges and proves he has expended as a result of
the alleged libel, and no other. Respondent contends that the defamatory words pleaded
in each count are libelous per se and further contends that if this be not true then she
has sufficiently pleaded and proved special damages as that term is statutorily defined. If
she is right in her first contention, then we do not reach the second, for if a publication
is libelous on its face then all damages — general, special or exemplary — properly
pleaded under applicable rules of pleading may be recovered according to the proof.
The sting of the charge in Count I of the complaint is found in the matter we have
quoted: “Seems strange that such an obscure little person as ‘plain Audrey’ should as-
sume such a responsibility. (‘How one small head’. . . Some of us here think that plain
Audrey . . . should have been named ‘Narcissus’. Hunt up your psychology textbooks for
that one.)” The Greek myth centering around Narcissus and his affair with Echo is com-
monly known and understood. While to state that a person ought to have been named,
that is that a person resembled, Narcissus could scarcely be called complimentary, it
would not, however, be a statement libelous on its face. But a different connotation en-
tirely is brought in by the direction: “Hunt up your psychology textbooks for that one”,
§ 15.01 DEFAMATION 737

for it was shown that from the myth of Narcissus there has stemmed a term commonly
used in psychology to classify, with respect to adults, a definite pathology called narcis-
sism or narcism. When appellant instructed her readers to hunt up their psychology
textbooks to discover what she meant by saying respondent ought to have been named
Narcissus, she made it plain that she was not referring to anything innocent in nature.
Even the dictionary uses the term “narcissism” as meaning, psychologically speaking,
“Erotic feeling aroused by one’s own body and personality, regarded by Freud as a nor-
mal state in sexual development; pathologically, fixation at, or regression to this stage.”
There was definite proof as to what appellant’s readers would have found had they
obeyed her admonition. A qualified witness, a professor of psychology from Boston
University, testified that the word “Narcissus” has a special meaning to a psychologist in
the field of abnormal psychology; that it refers to abnormal self-love; that is to a form of
self-love in which a person falls in love with himself as a man might fall in love with a
woman; that it is an abnormal psychological characteristic or trait; that there are de-
grees of this trait as of any trait; that the term would not be used to refer to normal be-
havior; that it would only be used to refer to psychopathic or abnormal behavior; that
the degrees would extend all the way from a person who did not engage in any overt
sexual practices related to himself to a person who also engaged in masturbation and
other forms of abnormal sexual behavior to a very excessive extent and to the exclusion
of sexual relations with members of the opposite sex; that one suffering from narcissism
would find it impossible to have normal sexual relations with a member of the opposite
sex; that while it is not common for psychologists to refer to a person suffering from
narcissism as a Narcissus he could be so called and there would be no mistaking what
was meant; that the terms defined had no other meaning in psychology textbooks ex-
cept the abnormal condition above described, and that every textbook on abnormal
psychology described narcissism as did all textbooks on general psychology which con-
tained a section on abnormal psychology. By directing her readers to texts on psychol-
ogy, appellant plainly indicated that she was not dealing with the innocuous Greek
myth, but with something they would find related to that myth in psychology text-
books. It cannot be properly argued with respect to the pleading in Count I that there is
any ambiguity in the publication by reason of which an innocent and non-libelous
meaning could fairly be ascribed thereto. To ascribe to any individual the sexual devia-
tion described in psychology textbooks as constituting narcissism, whatever the degree
of such deviation, is to expose that person to hatred, contempt, ridicule, obloquy, and
to cause him to be shunned or avoided. And certainly such a publication has a tendency
to injure him in his occupation. Particularly is this true when spoken of a teacher or a
writer. We hold that the publication stated in Count I of respondent’s complaint was li-
belous on its face and, therefore, did not require the pleading of explanatory matters
such as inducement, innuendo, or other extrinsic fact. Of course, the fact that such
matters were pleaded is immaterial here for if matter libelous on its face be shown, a
pleading of explanatory matter may be disregarded as surplusage. . . .
By the second allegedly libelous publication appellant told her readers: “Plain Au-
drey’s Trip to Europe still is causing a lot of local yokel comment whenever men-
tioned. We see a late movie advertised — could that have been the real reason Plain
Audrey went to Europe? The movie is titled ‘Under the Paris Sky’ — at the Guild The-
atre, 35th and Broadway. The gal on the advertisement looks as though she wore a
dirndl. When we come across Plain Audrey’s column on Paris, where she tells about
her trip to the waterfront, then we’ll know. Meanwhile Plain Audrey’s waterfront
‘coverage’ will intrigue us. But what we all want to know is, who covered Audrey
738 15 · MEDIA AND COMMUNICATION TORTS

while Audrey covered the water front? Surely Audrey didn’t slip along uncovered —
no, she told us she wore a dirndl and an old blouse. Oh, well, we were just reminded
of that old game about who took care of the caretaker’s daughter. We just changed
the wording.”
Appellant argues that the foregoing publication was not libelous on its face because
from the whole publication it is apparent that what is said is fairly susceptible of an in-
nocent and non-defamatory meaning. . . .
Respondent asserts that in this publication the sting of the charge is in the question,
“who covered Audrey while Audrey covered the waterfront?”, insisting that the words are
used in the sexual sense and pointing to the dictionary definition appearing in Webster’s
New International Dictionary wherein the verb “cover” is defined inter alia as “to copu-
late with (a female); to serve; as, a horse covers a mare.” Respondent points to testimony
that gossiping groups discussing this letter considered that appellant was accusing re-
spondent of street-walking in Paris to cover the expenses of her European trip. Appel-
lant cites the numerous definitions of the word “cover” to be found in dictionaries and
insists that the words she used are to be construed according to innocent meanings. Her
own testimony was that by the word “cover” she meant “watched by government agents”
lest respondent engage in subversive activities of the communist variety. The question
then in construing the pleading is whether or not the publication as pleaded is libelous
on its face. If the words used are reasonably susceptible of non-defamatory construc-
tion, then Count II does not state a cause of action unless it includes, as respondent
contends it does, a proper pleading of special damage within the terms of the statute. It
is difficult to ascribe an innocent meaning to this publication. The use of the verb
“cover” as meaning copulation is as indicated by the dictionary definition generally con-
nected with the breeding of animals; it might be described as a barnyard colloquialism
but appellant asserted that plain Audrey’s trip to Europe was causing a lot of local yokel
comment whenever mentioned and city folk often refer to the farm population as “local
yokels”. Then comes the reference to the movie and the attached advertisement which
shows a woman scantily clad in what appears to be a negligee, a brassiere, and little else.
The title of the movie is given in the advertisement as “Under the Paris Sky.” The forego-
ing preface is followed by the words “Meanwhile Plain Audrey’s waterfront ‘coverage’
will intrigue us. But what we all want to know is, who covered Audrey while Audrey
covered the waterfront?” The implication is plain that somebody covered Audrey while
she was on the waterfront, and the query is who was it that did so. “Surely”, appellant
continued, “Audrey didn’t slip along uncovered,” all of which appellant asserted re-
minded her “of that old game about who took care of the caretaker’s daughter.” Is all of
this reasonably susceptible of an innocent construction? Isn’t it plain that appellant is
here seeking to expose respondent to ridicule, if no worse? We think the only reasonable
construction of the whole publication is that upon its face it does expose respondent to
ridicule. That much we think is certain even if it can be reasonably argued that the pub-
lication does not charge respondent with prostitution. But if the publication did expose
respondent to ridicule, and such we think is its fair meaning, then it was libelous, and it
was unnecessary, in stating a cause of action, to plead explanatory circumstances and
special damage.
The third count presents little difficulty. The libelous matter reads: “The San Juan
Record’s Associate Editor, no less! reported on her recent trip to Europe that she wore
an old blouse and dirndl (was it? or slacks?) along the Paris waterfront. We presume she
was covering the waterfront”? We feel sorry indeed that she didn’t have proper clothes
for this assignment, and we venture to suggest that the Editor, Boss, Dear Selden or
§ 15.01 DEFAMATION 739

what-you-prefer open a charge account at I. Magnin’s (that is, if his credit rates that
good), and then his hard-working lille wife won’t have to slink along the waterfront in
an outdated dirndl (if that’s what she wore?) Sample Magnin advertising leaflet at-
tached — it says, ‘A fulfillment of your most luxurious dreams’ — and these dreams go
as high as $69.95 for a ‘permanently pleated’ gown.” Attached to the writing and pub-
lished with it as a part thereof was an advertisement for nightgowns and negligees. Here
the reasonable construction of the entire publication is that respondent wore an old
blouse along the Paris waterfront and that she was thus unsuitably clad; that her hus-
band should not have condemned her to slink along the waterfront in such clothing and
should have furnished her with proper clothes for her trip along the waterfront, that is,
with expensive nightgowns and negligees. Fairly construed, the publication, taken as a
whole, exposed respondent to contempt, ridicule, obloquy and avoidance. It also had a
clear tendency to injure her in her occupation as teacher and writer. It was libelous on
its face.
Although appellant contends that respondent failed to prove a cause of action, it is
apparent that the contention is concerned with the necessity of pleading and proving
special damages, which contentions we have already treated. It could not be claimed
that the evidence was insufficient to support the verdict of the jury as to Count I, nor
insufficient to have supported verdicts on Counts II and III had the jury ruled in favor
of respondent on those counts, for it was substantially shown that there was much talk
and comment among people living in the Fair Oaks community after the various li-
belous publications were made, the comment ranging all the way from ridicule to asser-
tions that appellant was charging respondent with sexual misbehavior of a gross nature.
There was testimony also that respondent did suffer general damage as defined by Civil
Code Section 48a, Subdivision 4, that is, loss of reputation, shame, mortification, and
hurt feelings. There was substantial support also for the jury’s finding as to Count I that
appellant had been motivated by express malice in her writings concerning respondent.
In short, the record fully supports the jury’s finding that as to Count I respondent had
been generally damaged in the sum of $100 and that she was entitled to exemplary
damages in the sum of $5,000. The jury found in appellant’s favor on Counts II and III,
but had their verdicts been otherwise reasonable awards of general and exemplary dam-
ages would have been supported.
...
The court instructed the jury that:
. . . [O]ne cannot justify his conduct in assailing the reputation of another by
saying that he acted merely in jest unless it is perfectly manifest from the lan-
guage employed that it can in no respect be regarded as an attack upon the per-
son to whom it relates. Nor is the publication of a statement reflecting on the
plaintiff rendered any the less libelous by the fact that the defendant circulated
the statement merely to amuse her readers.
In her testimony the appellant had taken the stand that she, in what she said, was
merely “poking fun” at the respondent; that she was jesting and was not dealing seri-
ously with the subject matter of her statements. The instruction was proper under the
circumstances and in view of appellant’s testimony. . . .
...
The judgment and the order appealed from are affirmed.
...
740 15 · MEDIA AND COMMUNICATION TORTS

LOOKING AT LIBEL AND ITS CONSEQUENCES


Trial, Sept. 1986, at 96–97*

About 180 lawyers, libel litigants, scholars, economists, and journalists met in New
York City in mid-June to exchange views on why people sue for libel, the cost of libel
suits, and effects of libel suits on the media. The conference on The Cost of Libel: Eco-
nomic and Policy Implications was jointly sponsored by the Gannett Center for Media
Studies and Columbia University.
Discussed during the one-day session —
• Contrary to popular belief, money is rarely the point in libel suits. Plaintiffs feel they
clear their reputations simply by suing — not solely by winning their suits — according to
a survey by Randall Bezanson, Gilbert Cranberg, and John Soloski of the University of
Iowa.
The Iowa Libel Research Project also found that plaintiffs frequently would not
have sued if their complaints had been treated with more understanding and serious-
ness.
Underscoring this finding was former Mobil Oil president William Tavoulareas, the
plaintiff in Tavoulareas v. Washington Post Co., 763 F.2d 1472 (D.C. Cir. 1985).
Tavoulareas said that his initial aim after denying a 1979 Washington Post story about
alleged business improprieties was simply to gain a retraction. “They absolutely
wouldn’t retract, even when I showed them evidence contradicting their story,” he
said. . . .
The press believes that money is no object in defending professional integrity; media
will often spend large sums in protracted litigation rather than settle. This suggests that
libel law is out of step with what plaintiffs and defendants really ask of it.
• Fear of libel suits has a restraining influence on media instincts to cover controver-
sial issues, but not uniformly. Stephen Renas, Charles Hartmann, and James Walker of
Wright State University, Dayton, Ohio, surveyed 206 editors, asking them: If the stan-
dard of proof in libel were changed from actual malice to negligence and strict liability,
what would be the effect on their newsrooms?
Newspapers depending on street sales would be less shy of controversy than sub-
scription papers.
Papers with competitors would be less deterred from controversial reporting than
those publishing alone in their communities.
Surprisingly, those papers that had been sued in the past 15 years, but had not paid
damages, would be more worried about eased liability standards than those that had ac-
tually paid damages.
Neither newspaper size nor possession of libel insurance significantly affected re-
sponses.

* Reprinted with permission of TRIAL (September 1986). Copyright the Association of Trial
Lawyers of America.
§ 15.01 DEFAMATION 741

NOTES
(1) Can you rationalize, on policy grounds, the rule that a libel must not require
proof of extrinsic circumstances in order to support general damages?
(2) If the material sued on in Menefee was properly described as “libel per se” under
the then existing state of California law, what is the most persuasive general argument
that you could make against imposing liability on the defendant?
(3) Just a couple of years after Menefee, the California Supreme Court disapproved
the appellate court’s dictum that libel plaintiffs must prove special damages when the
defendant’s words may be construed in a nondefamatory way. The case was one in
which, as the court characterized it, “the sting of the alleged libel is that . . . a commu-
nist-line paper . . . endorsed and recommended plaintiff for election [to a city council]
and that therefore he was a communist sympathizer or fellow traveler.” In specifically
disapproving the “possible-innocent-meaning rule,” the supreme court said that when it
could “be reasonably inferred from the language used that defendant intended to charge
plaintiff with communist sympathies and that many readers so interpreted the article,”
and when a defendant’s demurrer effectively admitted that intent, “it ill befits defendant
to contend that it should escape liability on the ground that owing to a possible inno-
cent meaning some of its readers did not draw the defamatory inference it intended that
they should.” MacLeod v. Tribune Pub. Co., 52 Cal. 2d 536, 343 P.2d 36, 44 (1959).
(4) The following statements were the grounds for a counterclaim by a county highway
superintendent against a civil engineer who sued him for dismissal from employment:
(a) The counterclaiming plaintiff “doesn’t have the guts to fire.”
(b) He “wouldn’t make a pimple on an engineer’s ass.”
(c) He was a “liar,” a “gutless bastard” and a “black son of a bitch.”
Which of these statements, if any, would support a defamation action?
(5) Is the accusation that a high school athlete is a “quitter” grounds for a libel suit? A
press story reported that one of five Phoenix-area students labeled with that word in a
yearbook caption had settled a libel claim for $4,500. Student Wins Claim Over Label in
Yearbook, Wash. Post, Jan. 20, 1987, at A9.
(6) A police officer sued a sergeant for calling him “a little fruit” during roll call, and
telling one of his colleagues, “you’re riding with the fruit tonight.” Would this language
state a cause of action?
What about a present-day repetition of the language in Nieman-Marcus v. Lait, sum-
marized in note 3 after Loeb, supra?
(7) Finally, consider Groucho Marx’s declaration in “Duck Soup”: “Remember you’re
fighting for this woman’s honor, which is more than she ever did.” Could the subject of
the statement successfully sue its maker?

[B] Constitutional Defamation Law


DEFAMATION AND THE CONSTITUTION
Since 1964, the Supreme Court has transformed American libel law, placing various
publishers of defamatory material under a partial umbrella of constitutional protection.
This process began with the case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
742 15 · MEDIA AND COMMUNICATION TORTS

in which the court formulated a privilege for those who defamed public officials in ways
related to the performance of their official duties. Officials could succeed against such
defendants only if they could show that the publication was done with “actual malice,”
which was defined to mean either knowledge of the falsity of the publication or “reck-
less disregard of whether it was false or not.” Presently, the centerpiece of the Supreme
Court’s defamation jurisprudence is the case of Gertz v. Robert Welch, Inc. The excerpts
below from that case, which has been severely edited, are designed to present relevant
judicial history preceding Gertz, and a summary of the rules of law announced in that
decision.
—————

GERTZ v. ROBERT WELCH, INC.


United States Supreme Court
418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)

MR. JUSTICE POWELL delivered the opinion of the Court.


This Court has struggled for nearly a decade to define the proper accommodation
between the law of defamation and the freedoms of speech and press protected by the
First Amendment. With this decision we return to that effort. We granted certiorari to
reconsider the extent of a publisher’s constitutional privilege against liability for
defamation of a private citizen. . . .
I
In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson.
The state authorities prosecuted Nuccio for the homicide and ultimately obtained a
conviction for murder in the second degree. The Nelson family retained petitioner
Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio.
Respondent publishes American Opinion, a monthly outlet for the views of the John
Birch Society. Early in the 1960’s the magazine began to warn of a nationwide conspir-
acy to discredit local law enforcement agencies and create in their stead a national police
force capable of supporting a Communist dictatorship. As part of the continuing effort
to alert the public to this assumed danger, the managing editor of American Opinion
commissioned an article on the murder trial of Officer Nuccio. For this purpose he en-
gaged a regular contributor to the magazine. In March 1969 respondent published the
resulting article under the title “FRAME-UP: Richard Nuccio And The War On Police.”
The article purports to demonstrate that the testimony against Nuccio at his criminal
trial was false and that his prosecution was part of the Communist campaign against
the police.
In his capacity as counsel for the Nelson family in the civil litigation, petitioner at-
tended the coroner’s inquest into the boy’s death and initiated actions for damages, but
he neither discussed Officer Nuccio with the press nor played any part in the criminal
proceeding. Notwithstanding petitioner’s remote connection with the prosecution of
Nuccio, respondent’s magazine portrayed him as an architect of the “frame-up.” Ac-
cording to the article, the police file on petitioner took “a big, Irish cop to lift.” The arti-
cle stated that petitioner had been an official of the “Marxist League for Industrial
Democracy, originally known as the Intercollegiate Socialist Society, which has advo-
cated the violent seizure of our government.” It labeled Gertz a “Leninist” and a “Com-
munist-fronter.” It also stated that Gertz had been an officer of the National Lawyers
§ 15.01 DEFAMATION 743

Guild, described as a Communist organization that “probably did more than any other
outfit to plan the Communist attack on the Chicago police during the 1968 Democratic
Convention.”
These statements contained serious inaccuracies. The implication that petitioner had
a criminal record was false. Petitioner had been a member and officer of the National
Lawyers Guild some 15 years earlier, but there was no evidence that he or that organiza-
tion had taken any part in planning the 1968 demonstrations in Chicago. There was
also no basis for the charge that petitioner was a “Leninist” or a “Communist-fronter.”
And he had never been a member of the “Marxist League for Industrial Democracy” or
the “Intercollegiate Socialist Society.”
The managing editor of American Opinion made no effort to verify or substantiate
the charges against petitioner. Instead, he appended an editorial introduction stating
that the author had “conducted extensive research into the Richard Nuccio Case.” And
he included in the article a photograph of petitioner and wrote the caption that ap-
peared under it: “Elmer Gertz of Red Guild harrasses Nuccio.” Respondent placed the
issue of American Opinion containing the article on sale at newsstands throughout the
country and distributed reprints of the article on the streets of Chicago.
Petitioner filed a diversity action for libel in the United States District Court for the
Northern District of Illinois. He claimed that the falsehoods published by respondent
injured his reputation as a lawyer and a citizen. Before filing an answer, respondent
moved to dismiss the complaint for failure to state a claim upon which relief could be
granted, apparently on the ground that petitioner failed to allege special damages. But
the court ruled that statements contained in the article constituted libel per se under
Illinois law and that consequently petitioner need not plead special damages. 306
F.Supp. 310 [N.D.Ill.1969].
After answering the complaint, respondent filed a pretrial motion for summary
judgment, claiming a constitutional privilege against liability for defamation. It asserted
that petitioner was a public official or a public figure and that the article concerned an
issue of public interest and concern. For these reasons, respondent argued, it was enti-
tled to invoke the privilege enunciated in New York Times Co. v. Sullivan, 376 U.S. 254,
84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Under this rule respondent would escape liability
unless petitioner could prove publication of defamatory falsehood “with ‘actual
malice’ — that is, with knowledge that it was false or with reckless disregard of whether
it was false or not.” . . . Respondent claimed that petitioner could not make such a show-
ing and submitted a supporting affidavit by the magazine’s managing editor. The editor
denied any knowledge of the falsity of the statements concerning petitioner and stated
that he had relied on the author’s reputation and on his prior experience with the accu-
racy and authenticity of the author’s contributions to American Opinion.
The District Court denied respondent’s motion for summary judgment in a memo-
randum opinion. . . . The court did not dispute respondent’s claim to the protection of
the New York Times standard. Rather, it concluded that petitioner might overcome the
constitutional privilege by making a factual showing sufficient to prove publication of
defamatory falsehood in reckless disregard of the truth. During the course of the trial,
however, it became clear that the trial court had not accepted all of respondent’s as-
serted grounds for applying the New York Times rule to this case. It thought that respon-
dent’s claim to the protection of the constitutional privilege depended on the con-
tention that petitioner was either a public official under the New York Times decision or
a public figure under Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18
744 15 · MEDIA AND COMMUNICATION TORTS

L.Ed.2d 1094 (1967), apparently discounting the argument that a privilege would arise
from the presence of a public issue. After all the evidence had been presented but before
submission of the case to the jury, the court ruled in effect that petitioner was neither a
public official nor a public figure. It added that, if he were, the resulting application of
the New York Times standard would require a directed verdict for respondent. Because
some statements in the article constituted libel per se under Illinois law, the court sub-
mitted the case to the jury under instructions that withdrew from its consideration all
issues save the measure of damages. The jury awarded $50,000 to petitioner.
Following the jury verdict and on further reflection, the District Court concluded
that the New York Times standard should govern this case even though petitioner was
not a public official or public figure. It accepted respondent’s contention that that privi-
lege protected discussion of any public issue without regard to the status of a person de-
famed therein. Accordingly, the court entered judgment for respondent notwithstand-
ing the jury’s verdict. This conclusion anticipated the reasoning of a plurality of this
Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296
(1971).
Petitioner appealed to contest the applicability of the New York Times standard to this
case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of
the District Court’s determination that petitioner was not a public figure, it did not
overturn that finding. It agreed with the District Court that respondent could assert the
constitutional privilege because the article concerned a matter of public interest, citing
this Court’s intervening decision in Rosenbloom v. Metromedia, Inc., supra. The Court
of Appeals read Rosenbloom to require application of the New York Times standard to
any publication or broadcast about an issue of significant public interest, without re-
gard to the position, fame, or anonymity of the person defamed, and it concluded that
respondent’s statements concerned such an issue. After reviewing the record, the Court
of Appeals endorsed the District Court’s conclusion that petitioner had failed to show
by clear and convincing evidence that respondent had acted with “actual malice” as de-
fined by New York Times. There was no evidence that the managing editor of American
Opinion knew of the falsity of the accusations made in the article. In fact, he knew
nothing about petitioner except what he learned from the article. The court correctly
noted that mere proof of failure to investigate, without more, cannot establish reckless
disregard for the truth. Rather, the publisher must act with a “high degree of awareness
of . . . probable falsity.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325,
20 L.Ed.2d 262 (1968). . . . The evidence in this case did not reveal that respondent had
cause for such an awareness. The Court of Appeals therefore affirmed. . . . For the rea-
sons stated below, we reverse.
II
The principal issue in this case is whether a newspaper or broadcaster that publishes
defamatory falsehoods about an individual who is neither a public official nor a public
figure may claim a constitutional privilege against liability for the injury inflicted by
those statements. The Court considered this question on the rather different set of facts
presented in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296
(1971). Rosenbloom, a distributor of nudist magazines, was arrested for selling al-
legedly obscene material while making a delivery to a retail dealer. The police obtained a
warrant and seized his entire inventory of 3,000 books and magazines. He sought and
obtained an injunction prohibiting further police interference with his business. He
then sued a local radio station for failing to note in two of its newscasts that the 3,000
items seized were only “reportedly” or “allegedly” obscene and for broadcasting refer-
§ 15.01 DEFAMATION 745

ences to “the smut literature racket” and to “girlie-book peddlers” in its coverage of the
court proceeding for injunctive relief. He obtained a judgment against the radio station,
but the Court of Appeals for the Third Circuit held the New York Times privilege applic-
able to the broadcast and reversed. 415 F.2d 892 (1969).
This Court affirmed the decision below, but no majority could agree on a controlling
rationale. The eight Justices who participated in Rosenbloom announced their views in five
separate opinions, none of which commanded more than three votes. The several state-
ments not only reveal disagreement about the appropriate result in that case, they also re-
flect divergent traditions of thought about the general problem of reconciling the law of
defamation with the First Amendment. One approach has been to extend the New York
Times test to an expanding variety of situations. Another has been to vary the level of con-
stitutional privilege for defamatory falsehood with the status of the person defamed. And
a third view would grant to the press and broadcast media absolute immunity from liabil-
ity for defamation. To place our holding in the proper context, we preface our discussion
of this case with a review of the several Rosenbloom opinions and their antecedents.
In affirming the trial court’s judgment in the instant case, the Court of Appeals relied
on Mr. Justice Brennan’s conclusion for the Rosenbloom plurality that “all discussion
and communication involving matters of public or general concern,” 403 U.S., at 44, 91
S.Ct., at 1820, warrant the protection from liability for defamation accorded by the rule
originally enunciated in New York Times Co. v. Sullivan, . . . [In New York Times], [t]his
Court concluded that a “rule compelling the critic of official conduct to guarantee the
truth of all his factual assertions” would deter protected speech, . . . and announced the
constitutional privilege designed to counter that effect:
The constitutional guarantees require, we think, a federal rule that prohibits a
public official from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with “actual
malice” — that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. . . .
Three years after New York Times, a majority of the Court agreed to extend the con-
stitutional privilege to defamatory criticism of “public figures.” This extension was an-
nounced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker,
388 U.S. 130, 162, 87 S.Ct. 1975, 1995, 18 L.Ed.2d 1094 (1967). The first case involved
the Saturday Evening Post’s charge that Coach Wally Butts of the University of Georgia
had conspired with Coach “Bear” Bryant of the University of Alabama to fix a football
game between their respective schools. Walker involved an erroneous Associated Press
account of former Major General Edwin Walker’s participation in a University of Mis-
sissippi campus riot. Because Butts was paid by a private alumni association and
Walker had resigned from the Army, neither could be classified as a “public official”
under New York Times. Although Mr. Justice Harlan announced the result in both cases,
a majority of the Court agreed with Mr. Chief Justice Warren’s conclusion that the New
York Times test should apply to criticism of “public figures” as well as “public officials.”7

7. Professor Kalven once introduced a discussion of these cases with the apt heading, “You Can’t
Tell the Players without a Score Card.” Kalven, The Reasonable Man and the First Amendment: Hill,
Butts, and Walker, 1967 Sup. Ct. Rev. 267, 275. Only three other Justices joined Mr. Justice Har-
lan’s analysis of the issues involved. In his concurring opinion, Mr. Chief Justice Warren stated the
principle for which these cases stand — that the New York Times test reaches both public figures and
public officials. Mr. Justice Brennan and Mr. Justice White agreed with the Chief Justice on that
question. Mr. Justice Black and Mr. Justice Douglas reiterated their view that publishers should have
an absolute immunity from liability for defamation, but they acquiesced in the Chief Justice’s rea-
746 15 · MEDIA AND COMMUNICATION TORTS

The Court extended the constitutional privilege announced in that case to protect
defamatory criticism of nonpublic persons who “are nevertheless intimately involved in
the resolution of important public questions or, by reason of their fame, shape events
in areas of concern to society at large.” Id. at 164 (Warren, C.J., concurring in result),
87 S.Ct., at 1996.
In his opinion for the plurality in Rosenbloom v. Metromedia, Inc., . . . Mr. Justice
Brennan took the New York Times privilege one step further. He concluded that its pro-
tection should extend to defamatory falsehoods relating to private persons if the state-
ments concerned matters of general or public interest. He abjured the suggested distinc-
tion between public officials and public figures on the one hand and private individuals
on the other. He focused instead on society’s interest in learning about certain issues: “If
a matter is a subject of public or general interest, it cannot suddenly become less so
merely because a private individual is involved, or because in some sense the individual
did not ‘voluntarily’ choose to become involved.” Id., at 43, 91 S.Ct., at 1819. Thus,
under the plurality opinion, a private citizen involuntarily associated with a matter of
general interest has no recourse for injury to his reputation unless he can satisfy the de-
manding requirements of the New York Times test.
Two members of the Court concurred in the result in Rosenbloom but departed from
the reasoning of the plurality. Mr. Justice Black restated his view, long shared by Mr.
Justice Douglas, that the First Amendment cloaks the news media with an absolute and
indefeasible immunity from liability for defamation. Id., at 57, 91 S.Ct., at 1826.
...
III
We begin with the common ground. Under the First Amendment there is no such
thing as a false idea. However pernicious an opinion may seem, we depend for its cor-
rection not on the conscience of judges and juries but on the competition of other
ideas. But there is no constitutional value in false statements of fact. Neither the inten-
tional lie nor the careless error materially advances society’s interest in “uninhibited, ro-
bust, and wide-open” debate on public issues. New York Times Co. v. Sullivan, 376 U.S.,
at 270, 84 S.Ct., at 721. They belong to that category of utterances which “are no essen-
tial part of any exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the social inter-
est in order and morality.” Chaplinsky v. New Hampshire, . . . (1942).
Although the erroneous statement of fact is not worthy of constitutional protection,
it is nevertheless inevitable in free debate. . . . And punishment of error runs the risk of
inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms
of speech and press. . . .
The need to avoid self-censorship by the news media is, however, not the only soci-
etal value at issue. If it were, this Court would have embraced long ago the view that
publishers and broadcasters enjoy an unconditional and indefeasible immunity from li-
ability for defamation. . . . Yet absolute protection for the communications media re-
quires a total sacrifice of the competing value served by the law of defamation.
The legitimate state interest underlying the law of libel is the compensation of indi-
viduals for the harm inflicted on them by defamatory falsehoods. . . .

soning in order to enable a majority of the Justices to agree on the question of the appropriate con-
stitutional privilege for defamation of public figures.
§ 15.01 DEFAMATION 747

Some tension necessarily exists between the need for a vigorous and uninhibited
press and the legitimate interest in redressing wrongful injury. As Mr. Justice Harlan
stated, “some antithesis between freedom of speech and press and libel actions persists,
for libel remains premised on the content of speech and limits the freedom of the pub-
lisher to express certain sentiments, at least without guaranteeing legal proof of their
substantial accuracy.” Curtis Publishing Co. v. Butts. . . .
...
. . . [We] conclude that the States should retain substantial latitude in their efforts to
enforce a legal remedy for defamatory falsehood injurious to the reputation of a private
individual. The extension of the New York Times test proposed by the Rosenbloom plu-
rality would abridge this legitimate state interest to a degree that we find unacceptable.
And it would occasion the additional difficulty of forcing state and federal judges to de-
cide on an ad hoc basis which publications address issues of “general or public interest”
and which do not — to determine, in the words of Mr. Justice Marshall, “what informa-
tion is relevant to self-government.” Rosenbloom v. Metromedia, Inc., 403 U.S., at 79, 91
S.Ct., at 1837. We doubt the wisdom of committing this task to the conscience of
judges. Nor does the Constitution require us to draw so thin a line between the drastic
alternatives of the New York Times privilege and the common law of strict liability for
defamatory error. The “public or general interest” test for determining the applicability
of the New York Times standard to private defamation actions inadequately serves both
of the competing values at stake. On the one hand, a private individual whose reputa-
tion is injured by defamatory falsehood that does concern an issue of public or general
interest has no recourse unless he can meet the rigorous requirements of New York
Times. This is true despite the factors that distinguish the state interest in compensating
private individuals from the analogous interest involved in the context of public per-
sons. On the other hand, a publisher or broadcaster of a defamatory error which a
court deems unrelated to an issue of public or general interest may be held liable in
damages even if it took every reasonable precaution to ensure the accuracy of its asser-
tions. And liability may far exceed compensation for any actual injury to the plaintiff,
for the jury may be permitted to presume damages without proof of loss and even to
award punitive damages.
We hold 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.10 This approach provides a
more equitable boundary between the competing concerns involved here. It recognizes
the strength of the legitimate state interest in compensating private individuals for
wrongful injury to reputation, yet shields the press and broadcast media from the rigors
of strict liability for defamation. . . .

10. Our caveat against strict liability is the prime target of Mr. Justice WHITE’S dissent. He
would hold that a publisher or broadcaster may be required to prove the truth of a defamatory state-
ment concerning a private individual and, failing such proof, that the publisher or broadcaster may
be held liable for defamation even though he took every conceivable precaution to ensure the accu-
racy of the offending statement prior to its dissemination. In Mr. Justice WHITE’s view, one who
publishes a statement that later turns out to be inaccurate can never be “without fault” in any mean-
ingful sense, for “[i]t is he who circulated a falsehood that he was not required to publish”. . . .
. . . In light of the progressive extension of the knowing-or-reckless-falsity requirement . . . one
might have viewed today’s decision allowing recovery under any standard save strict liability as a
more generous accommodation of the state interest in comprehensive reputational injury to private
individuals than the law presently affords.
748 15 · MEDIA AND COMMUNICATION TORTS

IV
Our accommodation of the competing values at stake in defamation suits by private
individuals allows the States to impose liability on the publisher or broadcaster of
defamatory falsehood on a less demanding showing than that required by New York
Times. This conclusion is not based on a belief that the considerations which prompted
the adoption of the New York Times privilege for defamation of public officials and its
extension to public figures are wholly inapplicable to the context of private individuals.
Rather, we endorse this approach in recognition of the strong and legitimate state inter-
est in compensating private individuals for injury to reputation. But this countervailing
state interest extends no further than compensation for actual injury. For the reasons
stated below, we hold that the States may not permit recovery of presumed or punitive
damages, at least when liability is not based on a showing of knowledge of falsity or
reckless disregard for the truth.
The common law of defamation is an oddity of tort law, for it allows recovery of
purportedly compensatory damages without evidence of actual loss. Under the tradi-
tional rules pertaining to actions for libel, the existence of injury is presumed from the
fact of publication. Juries may award substantial sums as compensation for supposed
damage to reputation without any proof that such harm actually occurred. The largely
uncontrolled discretion of juries to award damages where there is no loss unnecessarily
compounds the potential of any system of liability for defamatory falsehood to inhibit
the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of pre-
sumed damages invites juries to punish unpopular opinion rather than to compensate
individuals for injury sustained by the publication of a false fact. More to the point, the
States have no substantial interest in securing for plaintiffs such as this petitioner gratu-
itous awards of money damages far in excess of any actual injury.
We would not, of course, invalidate state law simply because we doubt its wisdom,
but here we are attempting to reconcile state law with a competing interest grounded in
the constitutional command of the First Amendment. It is therefore appropriate to re-
quire that state remedies for defamatory falsehood reach no farther than is necessary to
protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs
who do not prove knowledge of falsity or reckless disregard for the truth to compensa-
tion for actual injury. We need not define “actual injury,” as trial courts have wide expe-
rience in framing appropriate jury instructions in tort actions. Suffice it to say that ac-
tual injury is not limited to out-of-pocket loss. Indeed, the more customary types of
actual harm inflicted by defamatory falsehood include impairment of reputation and
standing in the community, personal humiliation, and mental anguish and suffering.
Of course, juries must be limited by appropriate instructions, and all awards must be
supported by competent evidence concerning the injury, although there need be no ev-
idence which assigns an actual dollar value to the injury.
We also find no justification for allowing awards of punitive damages against pub-
lishers and broadcasters held liable under state-defined standards of liability for
defamation. In most jurisdictions jury discretion over the amounts awarded is limited
only by the gentle rule that they not be excessive. Consequently, juries assess punitive
damages in wholly unpredictable amounts bearing no necessary relation to the actual
harm caused. And they remain free to use their discretion selectively to punish expres-
sions of unpopular views. Like the doctrine of presumed damages, jury discretion to
award punitive damages unnecessarily exacerbates the danger of media self-censorship,
but, unlike the former rule, punitive damages are wholly irrelevant to the state interest
that justifies a negligence standard for private defamation actions. They are not com-
§ 15.01 DEFAMATION 749

pensation for injury. Instead, they are private fines levied by civil juries to punish repre-
hensible conduct and to deter its future occurrence. In short, the private defamation
plaintiff who establishes liability under a less demanding standard than that stated by
New York Times may recover only such damages as are sufficient to compensate him for
actual injury.
V
Notwithstanding our refusal to extend the New York Times privilege to defamation of
private individuals, respondent contends that we should affirm the judgment below on
the ground that petitioner is either a public official or a public figure. There is little
basis for the former assertion. . . .
Respondent’s characterization of petitioner as a public figure raises a different
question.
...
In this context it is plain that petitioner was not a public figure. He played a minimal
role at the coroner’s inquest, and his participation related solely to his representation of
a private client. He took no part in the criminal prosecution of Officer Nuccio. More-
over, he never discussed either the criminal or civil litigation with the press and was
never quoted as having done so. He plainly did not thrust himself into the vortex of this
public issue, nor did he engage the public’s attention in an attempt to influence its out-
come. We are persuaded that the trial court did not err in refusing to characterize peti-
tioner as a public figure for the purpose of this litigation.
We therefore conclude that the New York Times standard is inapplicable to this case
and that the trial court erred in entering judgment for respondent. Because the jury was
allowed to impose liability without fault and was permitted to presume damages with-
out proof of injury, a new trial is necessary. We reverse and remand for further proceed-
ings in accord with this opinion.
...
[The concurrence of Justice Blackmun is omitted, as are the dissents of Chief Justice
Burger and Justice Douglas. A brief excerpt only is given from the dissent of Justice
Brennan, and Justice White’s dissent has been substantially edited.]
MR. JUSTICE BRENNAN, dissenting.
...
The Court does not discount altogether the danger that jurors will punish for the ex-
pression of unpopular opinions. This probability accounts for the Court’s limitation
that “the States may not permit recovery of presumed or punitive damages, at least
when liability is not based on a showing of knowledge of falsity or reckless disregard for
the truth.” . . . But plainly a jury’s latitude to impose liability for want of due care poses a
far greater threat of suppressing unpopular views than does a possible recovery of pre-
sumed or punitive damages. Moreover, the Court’s broad-ranging examples of “actual
injury,” including impairment of reputation and standing in the community, as well as
personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on
punishing expression of unpopular views a formidable weapon for doing so. 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 Amend-
ment expression.
...
750 15 · MEDIA AND COMMUNICATION TORTS

MR. JUSTICE WHITE, dissenting.


For some 200 years — from the very founding of the Nation — the law of defamation
and right of the ordinary citizen to recover for false publication injurious to his reputa-
tion have been almost exclusively the business of state courts and legislatures. Under
typical state defamation law, the defamed private citizen had to prove only a false publi-
cation that would subject him to hatred, contempt, or ridicule. Given such publication,
general damage to reputation was presumed, while punitive damages required proof of
additional facts. The law governing the defamation of private citizens remained un-
touched by the First Amendment because until relatively recently, the consistent view of
the Court was that libelous words constitute a class of speech wholly unprotected by the
First Amendment, subject only to limited exceptions carved out since 1964.
But now, using that Amendment as the chosen instrument, the Court, in a few
printed pages, has federalized major aspects of libel law by declaring unconstitutional in
important respects the prevailing defamation law in all or most of the 50 States. That
result is accomplished by requiring the plaintiff in each and every defamation action to
prove not only the defendant’s culpability beyond his act of publishing defamatory ma-
terial but also actual damage to reputation resulting from the publication. Moreover,
punitive damages may not be recovered by showing malice in the traditional sense of ill
will; knowing falsehood or reckless disregard of the truth will not [sic][now? — Ed.] be
required.
...
The Court proceeds as though it were writing on tabula rasa and suggests that it must
mediate between two unacceptable choices — on the one hand, the rigors of the New
York Times rule which the Court thinks would give insufficient recognition to the interest
of the private plaintiff, and, on the other hand, the prospect of imposing “liability with-
out fault” on the press and others who are charged with defamatory utterances. Totally
ignoring history and settled First Amendment law, the Court purports to arrive at an
“equitable compromise,” rejecting both what it considers faultless liability and New York
Times malice, but insisting on some intermediate degree of fault. Of course, the Court
necessarily discards the contrary judgment arrived at in the 50 States that the reputation
interest of the private citizen is deserving of considerably more protection.
The Court evinces a deep-seated antipathy to “liability without fault.” But this catch-
phrase has no talismanic significance and is almost meaningless in this context where
the Court appears to be addressing those libels and slanders that are defamatory on
their face and where the publisher is no doubt aware from the nature of the material
that it would be inherently damaging to reputation. He publishes notwithstanding,
knowing that he will inflict injury. With this knowledge, he must intend to inflict that
injury, his excuse being that he is privileged to do so — that he has published the truth.
But as it turns out, what he has circulated to the public is a very damaging falsehood. Is
he nevertheless “faultless”? Perhaps it can be said that the mistake about his defense was
made in good faith, but the fact remains that it is he who launched the publication
knowing that it could ruin a reputation.
In these circumstances, the law has heretofore put the risk of falsehood on the pub-
lisher where the victim is a private citizen and no grounds of special privilege are in-
voked. The Court would now shift this risk to the victim, even though he has done
nothing to invite the calumny, is wholly innocent of fault, and is helpless to avoid his
injury. I doubt that jurisprudential resistance to liability without fault is sufficient
ground for employing the First Amendment to revolutionize the law of libel, and in my
§ 15.01 DEFAMATION 751

view, that body of legal rules poses no realistic threat to the press and its service to the
public. The press today is vigorous and robust. To me, it is quite incredible to suggest
that threats of libel suits from private citizens are causing the press to refrain from pub-
lishing the truth. I know of no hard facts to support that proposition, and the Court
furnishes none.
The communications industry has increasingly become concentrated in a few power-
ful hands operating very lucrative businesses reaching across the Nation and into almost
every home. Neither the industry as a whole nor its individual components are easily
intimidated, and we are fortunate that they are not. Requiring them to pay for the occa-
sional damage they do to private reputation will play no substantial part in their future
performance or their existence.
In any event, if the Court’s principal concern is to protect the communications indus-
try from large libel judgments, it would appear that its new requirements with respect to
general and punitive damages would be ample protection. Why it also feels compelled to
escalate the threshold standard of liability I cannot fathom, particularly when this will
eliminate in many instances the plaintiff ’s possibility of securing a judicial determination
that the damaging publication was indeed false, whether or not he is entitled to recover
money damages. Under the Court’s new rules, the plaintiff must prove not only the
defamatory statement but also some degree of fault accompanying it. The publication
may be wholly false and the wrong to him unjustified, but his case will nevertheless be
dismissed for failure to prove negligence or other fault on the part of the publisher. I find
it unacceptable to distribute the risk in this manner and force the wholly innocent victim
to bear the injury; for, as between the two, the defamer is the only culpable party. It is he
who circulated a falsehood that he was not required to publish.
It is difficult for me to understand why the ordinary citizen should himself carry the
risk of damage and suffer the injury in order to vindicate First Amendment values by
protecting the press and others from liability for circulating false information. This is
particularly true because such statements serve no purpose whatsoever in furthering the
public interest or the search for truth but, on the contrary, may frustrate that search
and at the same time inflict great injury on the defenseless individual. The owners of
the press and the stockholders of the communications enterprises can much better bear
the burden. And if they cannot, the public at large should somehow pay for what is es-
sentially a public benefit derived at private expense.
...
Not content with escalating the threshold requirements of establishing liability, the
Court abolishes the ordinary damages rule, undisturbed by New York Times and later
cases, that, as to libels or slanders defamatory on their face, injury to reputation is pre-
sumed and general damages may be awarded along with whatever special damages may
be sought. Apparently because the Court feels that in some unspecified and unknown
number of cases, plaintiffs recover where they have suffered no injury or recover more
than they deserve, it dismisses this rule as an “oddity of tort law.” The Court thereby re-
fuses in any case to accept the fact of wide dissemination of a per se libel as prima facie
proof of injury sufficient to survive a motion to dismiss at the close of plaintiff ’s case.
I have said before, but it bears repeating, that even if the plaintiff should recover no
monetary damages, he should be able to prevail and have a judgment that the publica-
tion is false. But beyond that, courts and legislatures literally for centuries have thought
that in the generality of cases, libeled plaintiffs will be seriously shortchanged if they
must prove the extent of the injury to their reputations. Even where libels or slanders
752 15 · MEDIA AND COMMUNICATION TORTS

are not on their face defamatory and special damage must be shown, when that show-
ing is made, general damages for reputation injury are recoverable without specific
proof.38
The Court is clearly right when at one point it states that “the law of defamation is
rooted in our experience that the truth rarely catches up with a lie.”* . . . But it ignores
what that experience teaches, viz., that damage to reputation is recurringly difficult to
prove and that requiring actual proof would repeatedly destroy and chance for adequate
compensation. Eminent authority has warned that
it is clear that proof of actual damage will be impossible in a great many cases
where, from the character of the defamatory words and the circumstances of
publication, it is all but certain that serious harm has resulted in fact.
W. Prosser, Law of Torts § 112, p. 765 (4th ed. 1971).
The Court fears uncontrolled awards of damages by juries, but that not only deni-
grates the good sense of most jurors — it fails to consider the role of trial and appellate
courts in limiting excessive jury verdicts where no reasonable relationship exists be-
tween the amount awarded and the injury sustained. Available information tends to
confirm that American courts have ably discharged this responsibility.
The new rule with respect to general damages appears to apply to all libels or slan-
ders, whether defamatory on their face or not, except, I gather, when the plaintiff
proves intentional falsehood or reckless disregard. Although the impact of the publica-
tion on the victim is the same, in such circumstances the injury to reputation may ap-
parently be presumed in accordance with the traditional rule. Why a defamatory state-
ment is more apt to cause injury if the lie is intentional than when it is only negligent, I
fail to understand. I suggest that judges and juries who must live by these rules will find
them equally incomprehensible.
...
With a flourish of the pen, the Court also discards the prevailing rule in libel and
slander actions that punitive damages may be awarded on the classic grounds of com-
mon-law malice, that is, “‘(a)ctual malice’ in the sense of ill will or fraud or reckless in-
difference to consequences.” In its stead, the Court requires defamation plaintiffs to
show intentional falsehood or reckless disregard for the truth or falsity of the publica-
tion. . . . I see no constitutional difference between publishing with reckless disregard for
the truth, where punitive damages will be permitted, and negligent publication where
they will not be allowed. It is difficult to understand what is constitutionally wrong with
assessing punitive damages to deter a publisher from departing from those standards of

38. Having held that the defamation plaintiff is limited to recovering for “actual injury,” the
Court hastens to add:
“Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more custom-
ary types of actual harm inflicted by defamatory falsehood include impairment of reputation and
standing in the community, personal humiliation, and mental anguish and suffering.” . . . It should
be pointed out that under the prevailing law, where the defamation is not actionable per se and
proof of “special damage” is required, a showing of actual injury to reputation is insufficient; but if
pecuniary loss is shown, general reputation damages are recoverable. The Court changes the latter,
but not the former, rule. Also under present law, pain and suffering, although shown, do not war-
rant damages in any defamation action unless the plaintiff is otherwise entitled to at least nominal
damages. By imposing a more difficult standard of liability and requiring proof of actual damage to
reputation, recovery for pain and suffering, though real, becomes a much more remote possibility.
* This statement appears in note 9 of the Court’s opinion, 418 U.S. at 344, omitted in this edi-
tion of the case. — Ed.
§ 15.01 DEFAMATION 753

care ordinarily followed in the publishing industry, particularly if common-law malice


is also shown.
...
I fail to see how the quality or quantity of public debate will be promoted by further
emasculation of state libel laws for the benefit of the news media.41 If anything, this
trend may provoke a new and radical imbalance in the communications process. It is
not at all inconceivable that virtually unrestrained defamatory remarks about private
citizens will discourage them from speaking out and concerning themselves with social
problems. This would turn the First Amendment on its head. . . .
...
While some risk of exposure “is a concomitant of life in a civilized community,”
Time, Inc. v. Hill, . . . the private citizen does not bargain for defamatory false-
hoods. . . .
...
. . . Whether or not the course followed by the majority is wise, and I have indicated
my doubts that it is, our constitutional scheme compels a proper respect for the role of
the States in acquitting their duty to obey the Constitution. Finding no evidence that
they have shirked this responsibility, particularly when the law of defamation is even
now in transition, I would await some demonstration of the diminution of freedom of
expression before acting.
...

NOTES
(1) Is Justice Powell’s solution in Gertz sufficiently responsive to the reality of mod-
ern mass media?
(2) Consider each of the following factors with respect to the effects of defamatory
communication:
(a) The possibility of effective reply.
(b) Behavioral data on the proposition that the truth never catches up with
a libel.
(c) The frequency of publication of the offending medium.
(d) The nature of the medium — e.g., print as compared with video broad-
cast, radio broadcast, or the Internet.
(e) The possibility of having a reply in the same “spot.”

41. Cf. Pedrick, [49 Cornell L.Q.] at 601–602:


“A great many forces in our society operate to determine the extent to which men are free in fact
to express their ideas. Whether there is a privilege for good faith defamatory misstatements on mat-
ters of public concern or whether there is strict liability for such statements may not greatly affect
the course of public discussion. How different has life been in those states which heretofore followed
the majority rule imposing strict liability for misstatements of fact defaming public figures from life
in the minority states where the good faith privilege held sway?”
See also T. Emerson, The System of Freedom of Expression 519 (1970) . . . : “[O]n the whole
the role of libel law in the system of freedom of expression has been relatively minor and essentially
erratic.”
754 15 · MEDIA AND COMMUNICATION TORTS

How much should each of these factors weigh in the determination of the appropri-
ate culpability standards and rules concerning the privilege to defame individuals in the
following categories:
(a) Public officials?
(b) Persons without official posts who are consistently involved in public af-
fairs of the kind that are the subject of the defamatory communication?
(c) Private citizens whose professional role propels them into particular
events with news value?
(d) Private citizens who are brought quite involuntarily into the public spot-
light by fortuitous events?
(e) Private citizens who are defamed in matters relating only to their pri-
vate lives?
(3) Gertz was only an intermediate point in a continuing chronicle, which could well
occupy a casebook by itself. Here is a thumbnail sketch of some of the descendants of
Gertz and New York Times:
(a) Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958 (1976): The fact that
divorce proceedings involving an heir to a fortune and his wife were a “cause
celebre” did not make the wife a “public figure,” even though she “may have
held a few press conferences during the divorce proceedings in an attempt to
satisfy inquiring reporters.”
(b) Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 99 S. Ct. 2701 (1979): A
“mere citation for contempt” arising from a failure to respond to a grand jury
subpoena related to an espionage investigation did not render a man a “public
figure” for purposes of a book on Soviet espionage.
(c) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.
Ct. 2939 (1985): Where the defendant communicated to five confidential sub-
scribers a credit report that grossly misrepresented a contractor’s assets and lia-
bilities, a plurality said that in cases of “speech involving no matters of public
concern,” a claimant could recover both presumed and punitive damages even
in the absence of “actual malice.” 472 U.S. at 761.
(4) The Court in Sullivan and Gertz wrote at length on the constitutional dimensions
of the fault requirement in defamation, but in neither case did the Court say much
about falsity. At common law, defamatory statements were presumptively false. The
logic ran that a plaintiff ’s reputation should be regarded as good, so a statement that
impugns that reputation must be false. Truth was available as an affirmative defense, but
as with any ordinary affirmative defense, the defendant bore the burden of proof. Sulli-
van and Gertz changed that norm by placing the burden of proving actual malice — a
standard that implicitly requires proof of falsity — on public figures and public officials.
But may states in cases of private-figure plaintiffs still burden defendants to prove that
an assertion is true? In a case involving allegations of a private-figure plaintiff ’s links to
organized crime, a 5–4 majority of the Supreme Court answered no, at least when the
matter is of public concern and the defendant is a newspaper. Justices Brennan and
Blackmun would have rejected any distinction between media and non-media defen-
dants. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S. Ct. 1558 (1986).
(5) Beginning journalism students learn that one does not put material in quotations
marks unless the speaker said them. Is deliberately altering a speaker’s words a per se in-
stance of New York Times malice? In Masson v. New Yorker Magazine, Inc., 501 U.S. 496
§ 15.01 DEFAMATION 755

(1991), the Supreme Court said it is not, “unless the alteration results in a material
change in the meaning conveyed by the statement.” However, pointing out that “quota-
tions may be a devastating instrument for conveying false meaning,” the Court said that
“if the alterations of [the plaintiff ’s] words gave a different meaning to the statements,
bearing upon their defamatory character, then the device of quotations might well be
critical in finding the words actionable.”
Masson arose from material, first published in The New Yorker, in which the author
Janet Malcolm quoted the psychoanalyst Jeffrey Masson, who had been appointed pro-
jects director of the Sigmund Freud Archives, as saying that he was “like an intellectual
gigolo” and that he would have made the house containing the archives “a place of sex,
women, fun.” The author had tape recorded some conversations with the plaintiff, but
these remarks did not appear in the tapes, and although she had typed up notes con-
taining the alleged quotes, she said she had discarded her handwritten originals. Two
jury verdicts — one inconclusive and a later one in favor of the defendants — followed
the Supreme Court decision. In a remarkable ending subsequent to the second jury
trial, the author’s 2-year-old granddaughter apparently pulled out a thin notebook from
a bookcase. The notebook had some of Malcolm’s missing notes, including the quota-
tions she had been unable to document in the original. Anthony Lewis, Stranger than
Fiction, N.Y. Times, Aug. 25, 1996, at A15.
(6) Assuming that the personal injury from false words can be as severe in its way as
harms done by motor vehicles, but given that a broad latitude for the press is of crucial
importance to our political institutions, would the ideal solution to the problem of
media defamation be federally subsidized defamation insurance?
—————

[C] “Opinion”
HENDERSON v. TIMES MIRROR COMPANY
United States District Court, District of Colorado
669 F. Supp. 356 (1987)

CARRIGAN, DISTRICT JUDGE.


This is the case of the mouse that roared invective. One of the defendants, Darrel
“Mouse” Davis, in a statement to newspaper reporters, called the plaintiff a “sleaze-bag
agent” who “slimed up from the bayou.” . . . Plaintiff, J. Harrison Henderson III, is an
agent for professional football players. By this lawsuit, Henderson takes exception to
Davis’ comments and seeks damages. . . .
. . . Henderson alleges that in January 1985 the Denver Gold professional football team
wanted to hire, and negotiated directly with, a quarterback named Raphel Cherry. Dur-
ing the course of the negotiations, Cherry hired the plaintiff as his agent to assist in nego-
tiations. After the plaintiff commenced representing Cherry, negotiations with the Gold
collapsed. Thereafter “Mouse” Davis, as head coach of the Gold, told news reporters that
the Gold had offered Cherry more than $100,000 before Henderson became his agent
and upped the asking price to $200,000, thus terminating the negotiations. Davis admit-
tedly referred to the plaintiff as a “sleazebag” who kind of “slimed up from the bayou”. . . .
While it can be agreed generally that the terms “sleazebag” and “slime” do not rank as
descriptive words one would prefer to have in letters of recommendation, their mean-
756 15 · MEDIA AND COMMUNICATION TORTS

ings in the context of Davis’ comments is so imprecise that they cannot be considered as
asserting facts. While it may not be a compliment to be called a “sleaze-bag agent,” or
“sleaze-bag journalist,” or “sleaze-bag coach,” or whatever kind of sleaze-bag one may
happen to be, the mere absence of complimentary affect does not render a statement
defamatory.
Nor does the mere description of one’s means of locomotion as “sliming” rise to the
legal status of slander; for the term is too slippery to be a fact one can grasp and hold up
to the lamp of truth in order to test whether the defense of truth applies. . . .
Here, the context is a recruiting dispute in the rough and rowdy world of profes-
sional football. . . .
Certainly, the sports world is an environment where the kind of “robust” debate en-
dorsed by the Supreme Court in New York Times, Inc. v. Sullivan, . . . has flourished.
Even the once fastidious etiquette of Wimbledon has succumbed to the more gross and
tawdry vernacular formerly more characteristic of hockey rinks and football stadia. The
world of Damon Runyon was not portrayed in the idiom of the church supper.
Moreover, our Anglo-American linguistic heritage has long recognized vigorous and
colorful insult as an art form, albeit not always creative. As noted by the court in Raible
v. Newsweek, Inc., 341 F.Supp. 804, 808–09 (W.D.Pa.1972), “Americans have been hurl-
ing epithets at each other for generations. . . . Certainly such name calling . . . does not
always give rise to an action for libel.” In 1800, Charles Lamb wrote to Samuel Co-
leridge: “For God’s sake (I never was more serious) don’t make me ridiculous any more
by terming me gentlehearted in print . . . substitute drunken dog, ragged head, seld-
shaven, odd-eyed, stuttering, or any other epithet which truly and properly belongs to
the gentleman in question.” Letter to Samuel Taylor Coleridge (August 1800). W.S.
Gilbert once declared that “[n]o one can have a higher opinion of him than I have —
and I think he is a dirty little beast.” And that indomitable master of the language, Win-
ston Churchill, upon bumping into a woman in the street who declaimed, “Sir, you are
drunk,” replied, “Madam, you are ugly, and the difference between you and me is that
in the morning I shall be sober; but you will still be ugly!”
Unfortunately, such creativity in the art of abusive epithet has all but disappeared. It
is all too rare today to hear the clear, clean ring of a really original insult. We have be-
come in our opprobrium, as in other areas of life, conformists copying from the deluge
of daily drivel from television or from the only occasionally more original print media.
Historically, an insultee had several options for seeking redress in circumstances such
as those here presented. For example, he could have challenged the insultor to a duel.
Or, following the lead of literature, one in the plaintiff ’s position might have trapped
“Mouse” Davis in a wine cellar. See E.A. Poe, The Cask of Amontillado, at 1 (1846)
(“[t]he thousand injuries of Fortunato I had borne as best I could, but when he ven-
tured upon insult I vowed revenge”). However, I am bound by the literature of law, and
those precedents oblige me to conclude that Davis’ utterances, however unfair or inap-
propriate, were mere opinion rather than assertions of fact and, therefore, the plaintiff ’s
claims for defamation must be dismissed. . . .

NOTE
Are the remarks sued upon in Henderson just good clean fun? What is the best state-
ment of a general principle that tells a court how to draw the line between opinionated
insults and factual defamations?
§ 15.01 DEFAMATION 757

PROBLEM
Consider the following translation of a restaurant review, which appeared in a
French language “Guide to New York”:
Mr. Chow
324 E. 54th Street
(between 1st and 2nd Avenues)
(751-9030)
Every Day until 11:45
Still another Chinese restaurant, but this one is the latest darling of fashion-
able society. . . . While his London restaurant enjoys an honorable reputation
(although it is clearly overrated) the branch which the clever Mr. Chow has
just opened in New York is simply astounding from a culinary point of view.
In a pinch, you might not care that you have to wait ten minutes to obtain
chopsticks instead of forks, that it is impossible to have the basic condiments
(soy sauce, hot sauce, etc.) on the table, that the principal concern of the
waiters (Italians) is to sell you expensive alcoholic drinks, but the last straw
is that the dishes on the menu (very short) have only the slightest relation-
ship to the essential spirit of Chinese cuisine. With their heavy and greasy
dough, the dumplings, on our visit, resembled bad Italian ravioli, the
steamed meatballs had a disturbingly gamy taste, the sweet and sour pork
contained more dough (badly cooked) than meat, and the green peppers
which accompanied it remained still frozen on the plate. The chicken with
chili was rubbery and the rice, soaking, for some reason, in oil, totally in-
sipid. Had we been specially punished for being so pretentious as to drink
only tea? Apparently not, for the drinkers of alcohol seemed as badly off as
we. At a near-by table, the Peking lacquered duck (although ordered in ad-
vance) was made up of only one dish (instead of three traditional ones),
composed of pancakes the size of a saucer and the thickness of a finger. At
another table, the egg-rolls had the gauge of andouillette sausages, and the
dough the thickness of large tagliatelle. No matter, since the wine kept flow-
ing. We do not know where Mr. Chow recruits his cooks, but he would do
well to send them for instruction somewhere in Chinatown. There, at least,
they still know the traditions. . . .
As attorney for an infuriated Mr. Chow, which phrases or sentences would you focus
on for a defamation suit? What would be your expectations of success?

OLLMAN v. EVANS
United States Court of Appeals, District of Columbia Circuit, En Banc
242 U.S. App. D.C. 301, 750 F.2d 970, cert. denied, 471 U.S. 1127 (1985)

STARR, CIRCUIT JUDGE.


This defamation action arises out of the publication of a syndicated column by Row-
land Evans and Robert Novak in May 1978. The question before us is whether the al-
legedly defamatory statements set forth in the column are constitutionally protected ex-
pressions of opinion or, as appellant contends, actionable assertions of fact. We
conclude, as did the District Court, that the challenged statements are entitled to ab-
solute First Amendment protection as expressions of opinion.
758 15 · MEDIA AND COMMUNICATION TORTS

I
Rowland Evans and Robert Novak are nationally syndicated columnists whose
columns appear regularly in newspapers across the country. According to the complaint
in this case, which was filed by plaintiff Bertell Ollman on February 15, 1979, an Evans
and Novak column appeared on or about May 4, 1978 in The Washington Post and other
newspapers across the Nation. . . . Attached to the complaint as Exhibit A was a photo-
copy of the column, styled “The Marxist Professor’s Intentions,” as it appeared in The
Washington Post on May 4, 1978. . . .
The plaintiff, Bertell Ollman, is a professor of political science at New York Univer-
sity. The complaint averred that Mr. Ollman “is widely esteemed among his colleagues
and enjoys the highest possible reputation as a scholar of integrity and a teacher.” . . . In
March 1978, Mr. Ollman was nominated by a departmental search committee to head
the Department of Government and Politics at the University of Maryland. The com-
mittee’s recommendation “was duly approved by the Provost of the University and the
Chancellor of the College Park campus.” . . .
With this professional move from Washington Square to College Park, Maryland
thus in the offing, the Evans and Novak article appeared. Since the years of litigation
that have followed revolve entirely around this single column, we will begin by describ-
ing its contents in some detail. In our description, we will highlight the specific por-
tions that Mr. Ollman assails as false and defamatory. The column begins as follows:
What is in danger of becoming a frivolous public debate over the appoint-
ment of a Marxist to head the University of Maryland’s department of politics
and government has so far ignored this unspoken concern within the academic
community: the avowed desire of many political activists to use higher educa-
tion for indoctrination.
The column immediately goes on to state that:
[t]he proposal to name Bertell Ollman, Professor at New York University, as
department head has generated wrong-headed debate. Politicians who jumped
in to oppose Ollman simply for his Marxist philosophy have received a justifi-
able going-over from defenders of academic freedom in the press and the uni-
versity. Academic Prince Valiants seem arrayed against McCarythite [sic]
know-nothings.
With these opening two paragraphs as lead-in, the authors then pose what they
deemed the pivotal issue in the debate: “But neither side approaches the crucial ques-
tion: not Ollman’s beliefs, but his intentions. His candid writings avow his desire to use
the classroom as an instrument for preparing what he calls ‘the revolution.’ Whether this is
a form of indoctrination that could transform the real function of a university and
transcend limits of academic freedom is a concern to academicians who are neither Mc-
Carthyite nor know-nothing.” (Emphasis added).
The columnists thus, in the first three paragraphs, articulated a view of what should
be the central question in what they viewed as a fruitless debate. The authors then go
on in the next paragraph to state: “To protect academic freedom, that question should
be posed not by politicians but by professors. But professors throughout the country
troubled by the nomination, clearly a minority, dare not say a word in today’s campus
climate.”
With this observation, the authors turn in the following six paragraphs to a discus-
sion of Mr. Ollman and his writings. Evans and Novak state that “[w]hile Ollman is de-
§ 15.01 DEFAMATION 759

scribed in news accounts as a ‘respected Marxist scholar,’ he is widely viewed in his pro-
fession as a political activist. Amid the increasingly popular Marxist movement in uni-
versity life, he is distinct from philosophical Marxists. Rather, he is an outspoken propo-
nent of ‘political Marxism.’” (Emphasis added).
The authors next relate Mr. Ollman’s two unsuccessful efforts to win election to
membership on the council of the American Political Science Association. In these elec-
tions, the column states (and appellant does not dispute) that Professor Ollman ran as a
candidate of the Caucus for a New Political Science and finished last out of sixteen can-
didates each time. “Whether or not that represents a professional judgment by his col-
leagues, as some critics contend, the verdict clearly rejected his campaign pledge: ‘If
elected . . . I shall use every means at my disposal to promote the study of Marxism and
Marxist approaches to politics throughout the profession.’”
Evans and Novak then direct the four ensuing paragraphs of the column to a sum-
mary of an article by Mr. Ollman, entitled “On Teaching Marxism and Building the
Movement” in the Winter 1978 issue of New Political Science. In this article, Mr. Ollman
claims that most students conclude his political science course with a “‘Marxist out-
look.’” The authors go on:
Ollman concedes that will be seen “as an admission that the purpose of my
course is to convert students to socialism.”
That bothers him not at all because “a correct understanding of Marxism (as
indeed of any body of scientific truths) leads automatically to its accep-
tance.” . . . The “classroom” is a place where the students’ bourgeois ideology is
being dismantled. “Our prior task” before the revolution, he writes, “is to make
more revolutionaries.”
Moving to a brief discussion of Mr. Ollman’s principal work, Alienation: Marx’s
Conception of Man in Capitalist Society, the authors described the work as “a ponderous
tome in adoration of the master (Marxism ‘is like a magnificiently rich tapestry’). Pub-
lished in 1971, it does not abandon hope for the revolution forecast by Karl Marx in
1848.” This brings the columnists to the last statement specifically identified in the com-
plaint as defamatory:
Such pamphleteering is hooted at by one political scientist in a major eastern
university, whose scholarship and reputation as a liberal are well known. “Ollman
has no status within the profession, but is a pure and simple activist,” he said.
Would he say that publicly? “No chance of it. Our academic culture does not
permit the raising of such questions.” (Emphasis added).
Evans and Novak then bring the column to a close, indicating in the penultimate
paragraph that “‘[s]uch questions’ would include these: What is the true measurement
of Ollman’s scholarship? Does he intend to use the classroom for indoctrination? Will
he indeed be followed by other Marxist professors? Could the department in time be
closed to non-Marxists, following the tendency at several English universities?”
In the column’s final paragraph, the authors return to their opening theme that
“such questions” as set forth in the previous paragraph should not be raised by politi-
cians, even if, as the anonymous political scientist claimed, they cannot be raised within
the Academy. They conclude the column by calling upon academics to address these
questions:
Here are the makings of a crisis that, to protect its integrity and true academic
freedom, academia itself must resolve.
760 15 · MEDIA AND COMMUNICATION TORTS

...
The District Court granted Evans and Novak’s motion for summary judgment, con-
cluding that the column simply reflected the columnists’ opinion and their “interpreta-
tion of [Mr. Ollman’s] writings.” Memorandum Opinion at 5. Thus, the District Court
held that the opinion was absolutely protected by the First Amendment. This appeal
followed.
II
A
This case presents us with the delicate and sensitive task of accommodating the First
Amendment’s protection of free expression of ideas with the common law’s protection
of an individual’s interest in reputation. It is a truism that the free flow of ideas and
opinions is integral to our democratic system of government. Thomas Jefferson well ex-
pressed this principle in his First Inaugural Address, when the Nation’s memory was
fresh with the passage of the notorious Alien and Sedition Acts:
If there be any among us who would wish to dissolve this Union or to change
its republican form, let them stand undisturbed as monuments of the safety
with which error of opinion may be tolerated where reason is left free to com-
bat it.
At the same time, an individual’s interest in his or her reputation is of the highest order.
Its protection is an eloquent expression of the respect historically afforded the dignity of
the individual in Anglo-American legal culture. A defamatory statement may destroy an
individual’s livelihood, wreck his standing in the community, and seriously impair his
sense of dignity and self-esteem.
The judiciary’s task in accommodating these competing interests is by no means
new: at common law, the fair comment doctrine bestowed qualified immunity from
libel actions as to certain types of opinions in order that writers could express freely
their views about subjects of public interest. However, since Gertz v. Robert Welch, Inc.,
418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the nature of this accommodation
has fundamentally changed. In Gertz, the Supreme Court in dicta seemed to provide
absolute immunity from defamation actions for all opinions and to discern the basis
for this immunity in the First Amendment. The Court began its analysis of the case by
stating:
Under the First Amendment there is no such thing as a false idea. However
pernicious an opinion may seem, we depend for its correction not on the con-
science of judges and juries but on the competition of other ideas. But there is
no constitutional value in false statements of fact. Neither the intentional lie
nor the careless error materially advances society’s interest in “uninhibited, ro-
bust, and wide-open debate on the public issues.”
By this statement, Gertz elevated to constitutional principle the distinction be-
tween fact and opinion, which at common law had formed the basis of the doctrine
of fair comment. Gertz’s implicit command thus imposes upon both state and federal
courts the duty as a matter of constitutional adjudication to distinguish facts from
opinions in order to provide opinions with the requisite, absolute First Amendment
protection. At the same time, however, the Supreme Court provided little guidance in
Gertz itself as to the manner in which the distinction between fact and opinion is to
be discerned. That, as we shall see, is by no means as easy a question as might appear
at first blush.
§ 15.01 DEFAMATION 761

Indeed, Gertz did not focus on this distinction at all. Rather, assuming without
lengthy discussion that the statements in that case could be construed as statements of
fact, the Court held that the plaintiff, who was a private rather than public figure, could
prove that the statements at issue there were libelous upon demonstrating that they
were negligently made. The distinction in our law between public and private figures,
however, does not directly bear on the distinction between fact and opinion. Expres-
sions of opinion are protected whether the subject of the comment is a private or public
figure. . . . In a word, Gertz’s reasoning immunizes an opinion, not because the opinion
is asserted about a public figure, but because there is no such thing as a “false” opinion.
...
It is a fitting illustration of the complexity of language and communication that
many statements from which actions for defamation arise do not clearly fit into either
category. These statements pose more subtle problems and are the stuff of which litiga-
tion is made. The principal difficulty arises from statements that on first analysis seem
to be based upon perceptions of events, but are not themselves simply a record of those
perceptions. Such statements may imply in some contexts the existence of facts not dis-
closed by the author.14 An example of such a statement, set forth in the Restatement
(Second) of Torts, is: “Mr. Jones is an alcoholic.”15 These statements obviously can be as
damaging to reputation as statements which on their face describe particular historical
events.
The degree to which such kinds of statements have real factual content can, of
course, vary greatly. We believe, in consequence, that courts should analyze the totality
of the circumstances in which the statements are made to decide whether they merit the
absolute First Amendment protection enjoyed by opinion. To evaluate the totality of the
circumstances of an allegedly defamatory statement, we will consider four factors in as-
sessing whether the average reader would view the statement as fact or, conversely,
opinion. While necessarily imperfect, these factors will, we are persuaded, assist in dis-
cerning as systematically as possible what constitutes an assertion of fact and what is, in
contrast, an expression of opinion.
First, we will analyze the common usage or meaning of the specific language of the
challenged statement itself. Our analysis of the specific language under scrutiny will be
aimed at determining whether the statement has a precise core of meaning for which a
consensus of understanding exists or, conversely, whether the statement is indefinite
and ambiguous. . . . Readers are, in our judgment, considerably less likely to infer facts
from an indefinite or ambiguous statement than one with a commonly understood
meaning. Second, we will consider the statement’s verifiability — is the statement ca-
pable of being objectively characterized as true or false? . . . Insofar as a statement lacks
a plausible method of verification, a reasonable reader will not believe that the state-
ment has specific factual content. . . . And, in the setting of litigation, the trier of fact
obliged in a defamation action to assess the truth of an unverifiable statement will
have considerable difficulty returning a verdict based upon anything but speculation.
Third, moving from the challenged language itself, we will consider the full context of

14. One commentator labels such statements “deductive opinions.” See Keeton, Defamation and
Freedom of the Press, 54 Tex.L.Rev. 1221, 1250–51 (1976) (contrasting evaluative opinions express-
ing a value judgment and deductive opinions purporting to convey information). Restatement
(Second) of Torts § 566 also attempts to categorize opinions which imply factual allegations. . . .
15. Restatement (Second) of Torts § 566, example 3. “A writes to B about his neighbor C: ‘I
think he must be an alcoholic.’”
762 15 · MEDIA AND COMMUNICATION TORTS

the statement — the entire article or column, for example — inasmuch as other, un-
challenged language surrounding the allegedly defamatory statement will influence the
average reader’s readiness to infer that a particular statement has factual content. . . .
Finally, we will consider the broader context or setting in which the statement appears.
Different types of writing have, as we shall more fully see, widely varying social con-
ventions which signal to the reader the likelihood of a statement’s being either fact or
opinion.
...
III
Now we turn to the case at hand to apply the foregoing analysis. As we have seen, Mr.
Ollman alleges various instances of defamation in the Evans and Novak column. Before
analyzing each such instance, we will first examine the context (the third and fourth
factors in our approach) in which the alleged defamations arise. We will then assess the
manner in which this context would influence the average reader in interpreting the al-
leged defamations as an assertion of fact or an expression of opinion.
From the earliest days of the Republic, individuals have published and circulated
short, frequently sharp and biting writings on issues of social and political interest.
From the pamphleteers urging revolution to abolitionists condemning the evils of slav-
ery, American authors have sought through pamphlets and tracts both to stimulate de-
bate and to persuade. Today among the inheritors of this lively tradition are the colum-
nists and opinion writers whose works appear on the editorial and Op-Ed pages of the
Nation’s newspapers. The column at issue here is plainly part and parcel of this tradi-
tion of social and political criticism.
The reasonable reader who peruses an Evans and Novak column on the editorial or
Op-Ed page is fully aware that the statements found there are not “hard” news like those
printed on the front page or elsewhere in the news sections of the newspaper. Readers
expect that columnists will make strong statements, sometimes phrased in a polemical
manner that would hardly be considered balanced or fair elsewhere in the newspaper.
National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That
proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space
limitations, it is also manifest that columnists or commentators will express themselves
in condensed fashion without providing what might be considered the full picture.
Columnists are, after all, writing a column, not a full-length scholarly article or a book.
This broad understanding of the traditional function of a column like Evans and Novak
will therefore predispose the average reader to regard what is found there to be opinion.
A reader of this particular Evans and Novak column would also have been influenced
by the column’s express purpose. The columnists laid squarely before the reader their
interest in ending what they deemed a “frivolous” debate among politicians over
whether Mr. Ollman’s political beliefs should bar him from becoming head of the De-
partment of Government and Politics at the University of Maryland. Instead, the au-
thors plainly intimated in the column’s lead paragraph that they wanted to spark a more
appropriate debate within academia over whether Mr. Ollman’s purpose in teaching
was to indoctrinate his students. Later in the column, they openly questioned the mea-
sure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that
they were not purporting to set forth definitive conclusions, but instead meant to venti-
late what in their view constituted the central questions raised by Mr. Ollman’s prospec-
tive appointment. In the penultimate paragraph of the column, as we have already seen,
the authors expressly posed the following “questions:”
§ 15.01 DEFAMATION 763

What is the true measurement of Ollman’s scholarship? Does he intend to use


the classroom for indoctrination? Will he indeed be followed by other Marxist
professors? Could the department in time become closed to non-Marxists, fol-
lowing the tendency at several English universities?
Prominently displayed in the Evans and Novak column, therefore, is interrogatory or
cautionary language that militates in favor of treating statements as opinion.
A
Having reviewed the context of the challenged statements, we turn next to the al-
leged defamation that, in our view, is most clearly opinion, namely that “[Ollman] is an
outspoken proponent of political Marxism.” This kind of characterization is much akin
to the characterization, “fascist,” found absolutely protected in Buckley v. Littell, supra.
This is unmistakably a “loosely definable, variously interpretable statement[] of opin-
ion . . . made inextricably in the contest of political, social or philosophical debate. . . .”
539 F.2d at 895. It is obviously unverifiable. Since Mr. Ollman concedes that he is a
Marxist, see Letter of B. Ollman to the Editors of The Washington Post (May 8, 1978), R.
3, the trier of fact in assessing the statement would have the dubious task of trying to
distinguish “political Marxism” from “non-political Marxism,” whatever that may be.
Nor is the statement that “[Mr. Ollman] is widely viewed in his profession as a polit-
ical activist” a representation or assertion of fact. “Political activist” is a term, like “polit-
ical Marxism,” that is hopelessly imprecise and indefinite. It is difficult to imagine,
much less construct, a means of deciding the quantum of political activity justifying the
label “activist.” While Mr. Ollman argues that this assertion is defamatory since it im-
plies that he has no reputation as a scholar, we are rather skeptical of the strength of that
implication, particularly in the context of this column. It does not appear the least bit
evident that “scholarship” and “political activism” are generally understood to be in-
compatible. Moreover, Evans and Novak set out facts which signalled to the reader that
this statement represents a characterization arising from the columnists’ view of the
facts. In the paragraph immediately following this statement, the column indicated that
Mr. Ollman on no less than two occasions finished dead last among all candidates for
election to the governing Council of the American Political Science Association, when
he ran on the platform: “If elected . . . I shall use every means at my disposal to promote
the study of Marxism and Marxist approaches to politics throughout the profession.” A
reasonable reader would conclude that the authors’ judgment that Mr. Ollman was
“widely viewed as a political activist” was a characterization based upon the latter’s un-
successful electoral endeavors within his profession.
B
Next we turn to Mr. Ollman’s complaints about the column’s quotations from and
remarks about his writings, and specifically his article, “On Teaching Marxism and
Building the Movement.”34 We note in this respect that even before the appearance of
the constitutionally based opinion privilege in Gertz, commentary on another’s writing
was considered a privileged occasion at common law and therefore received the benefit
of the fair comment doctrine. When a critic is commenting about a book, the reader is

34. Political Science, Winter 1978 at 5. R. 3. The column also commented upon Professor
Ollman’s book, Alienation: Marx’s Conception of Man in a Capitalist Society (1971), call-
ing the volume “ponderous” and dismissing it as “pamphleteering.” These comments are obviously
paradigms of opinion: Evans and Novak are merely making clear their dislike of the book’s style and
substance.
764 15 · MEDIA AND COMMUNICATION TORTS

on notice that the critic is engaging in interpretation, an inherently subjective enter-


prise, and therefore realizes that others, including the author, may utterly disagree with
the critic’s interpretation.36 The average reader further understands that because of lim-
itations of space, not to mention those limitations imposed by the patience of the
prospective audience, the critic as a practical matter will be able to support his opinion
only by rather truncated quotations from the book or work under scrutiny. The reader
is thus predisposed to view what the critic writes as opinion. In this context, courts have
rightly been wary of finding statements to be defamatory, unless the statements mis-
quote the author, put words into the author’s mouth or otherwise clearly go beyond the
realm of interpretation.
Evans’ and Novak’s statements about Mr. Ollman’s article clearly do not fall into the
category of misquotation or misrepresentation. First, the plaintiff complains of the fol-
lowing statement: “Ollman concedes that [the fact that most students have a ‘Marxist
outlook’ after taking his course] ‘will be seen as an admission that the purpose of my
course is to convert students to socialism.’” Tellingly, however, the quoted words are
accurately reproduced from Mr. Ollman’s article. See “On Teaching Marxism and
Building the Movement” at 5. To be sure, the quotation has not been printed in its
complete context.37 But that is neither here nor there; the quotation of remarks with-
out the complete context in which the remarks appeared is entirely commonplace
when summarizing a written work in a brief space. We are fully aware that this practice
can be highly irritating when the context does not seem fully and fairly stated. The
balm for the irritation, however, cannot be a libel suit, unless triers of fact are to sit in
editorial judgment.38
Professor Ollman also objects to the column’s posing the question, prompted in
Evans’ and Novak’s view by Mr. Ollman’s article, of whether he intended to use the
classroom for indoctrination. As we noted previously, the column in no wise affirma-
tively stated that Mr. Ollman was indoctrinating his students. Moreover, indoctrination
is not, at least as used here in the setting of academia, a word with a well-defined mean-
ing. To paraphrase Justice Harlan in another context, see Cohen v. California, 403 U.S.
15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971), what is indoctrination to one per-

36. Indeed, Mr. Ollman seems to accept the proposition that several interpretations of his writ-
ing are possible. See Letter of B. Ollman to the Editors of The Washington Post (May 8, 1978) (sug-
gesting that “the real test of what a teacher does in class is not what he says about what he does (for
that allows various interpretations) but what he actually does in class”). R. 3.
37. After the words which are quoted in the Evans’ and Novak’s columns, Professor Ollman’s ar-
ticle continues:
I can only answer that in my view — a view which denies the fact/value distinction — a
correct understanding of Marxism (as indeed of any body of scientific truths) leads auto-
matically to its acceptance. I hasten to add that this is not reflected in my grading prac-
tices: non-Marxist students (i.e., students who do not yet understand Marxism) do at
least as well as the rest of the class given by bourgeois professors. [sic] Furthermore, I do
not consider that I introduce more “politics” into my course than do other social science
professors, or that I am more interested than they are in convincing students of the cor-
rectness of my interpretations.
38. We note that in this case Mr. Ollman took advantage of another recourse. The Washington
Post published Mr. Ollman’s letter to set his statements in his article in a fuller context. See Letter of
B. Ollman to the Editors of The Washington Post (May 8, 1978). R. 3.
Of course, at some point the deletion or omission of proper context can be so egregious as to
amount to misquotation. Omitting a negative word from a sentence with the result that that sen-
tence has a meaning opposite to that which the author intended is a rather clear cut example of a
misquotation.
§ 15.01 DEFAMATION 765

son is merely the vigorous exposition of ideas to another. We therefore conclude that
the column’s statements concerning “indoctrination” constitute protected opinion.
Mr. Ollman also complains of the statement: “His candid writings avow his desire to
use the classroom as an instrument for preparing what he calls the ‘revolution’.” This
statement, unlike the column’s remarks about indoctrination, is stated without any in-
terrogatory language to allow the reader to discount it as opinion. However, it is clear
from the context that the statement represents Evans’ and Novak’s interpretation of Mr.
Ollman’s writing. And, like the charge of indoctrination, this statement does not have a
well-defined meaning or admit of a method of proof or disproof. What to one person is
a patently improper use of the classroom for political purposes may represent to an-
other no more than the imparting of ideas, in the faith that ideas have consequences.
C
Finally, we turn to the most troublesome statement in the column.* In the third-to-
last paragraph, an anonymous political science professor is quoted as saying: “Ollman
has no status within the profession but is a pure and simple activist.” The District Court
interpreted this remark as a statement that Mr. Ollman “lack[ed] a reputation in his
field as scholar.” . . .
Certainly a scholar’s academic reputation among his peers is crucial to his or her ca-
reer. Like the peripatetic philosophers of ancient Greece, modern scholars depend upon
their reputation to enable them to pursue their chosen calling. We also acknowledge
that at least one pre-Gertz case has held that the common-law privilege of fair comment
does not extend protection to remarks which disparage one’s status among one’s peers.
See Cepeda v. Cowles Magazines and Broadcasting, Inc., 328 F.2d 869 (9th Cir.1964)
(holding that, inter alia, remarks that a baseball player had “doghouse status” with the
San Francisco Giants’ hierarchy was not protected by fair comment).
We are of the view, however, that under the constitutionally based opinion privilege
announced in Gertz, this quotation, under the circumstances before us, is protected. A
confluence of factors leads us to this conclusion. First, as we have stated, inasmuch as
the column appears on the Op-Ed page, the average reader will be influenced by the
general understanding of the functions of such columns and read the remark to be
opinion.41 The identical quotation in a newspaper article purporting to publish facts or
in an academic publication which purported to rate status within a given discipline
would, of course, be quite another matter. But here we deal with statements by well-
known, nationally syndicated columnists on the Op-Ed page of a newspaper, the well-
recognized home of opinion and comment. In addition, the thrust of the column, taken
as a whole, is to raise questions about Mr. Ollman’s scholarship and intentions, not to
state conclusively from Evans’ and Novak’s first-hand knowledge that Professor Ollman
is not a scholar or that his colleagues do not regard him as such.

* The analysis in this portion of the opinion is concurred in only by Circuit Judges Tamm and
Wilkey and Senior Circuit Judge MacKinnon.
41. Consistent with the point that an Op-Ed piece is in itself a signal to the reader that what is
being read is opinion, the Supreme Court has very recently had occasion to remind us that the ex-
pression of editorial opinion “lies at the heart of First Amendment protection.” FCC v. League of
Women Voters, — U.S. — , 104 S.Ct. 3106, 3118, 82 L.Ed.2d 278 (1984). Speaking for the Court, Jus-
tice Brennan emphasized the editorial’s crucial role in “arousing” citizens to reflect on the important
issues of the day and stated that “[p]reserving the free expression of editorial opinion . . . is part and
parcel of ‘our profund national commitment . . . that debate on public issues should be uninhibited,
robust, and wide-open.’” Id. (quoting New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710,
721, 11 L.Ed.2d 666 (1964)).
766 15 · MEDIA AND COMMUNICATION TORTS

Moreover, the anonymous professor’s unflattering comment appears only after the
columnists expressly state that Mr. Ollman is a professor at New York University, a
highly respected academic institution, a fact which provides objective evidence of Mr.
Ollman’s “status.” So too, the controversy itself was occasioned by Professor Ollman’s
nomination by the departmental search committee as chairman of an academic depart-
ment at the University of Maryland, a fact stated in the column’s opening paragraph
which also plainly suggested to the average reader that Professor Ollman did in fact
enjoy some considerable status in academia. Finally in this regard, the column expressly
states that Professor Ollman’s imminent ascension to the departmental chairmanship at
Maryland was troubling only to a clear minority of academics. Thus, the charge of “no
status” in this context would plainly appear to the average reader to be “rhetorical hy-
perbole” within the meaning of Greenbelt, and which in turn would lead the reader to
treat the statement as one of opinion.42
We note especially in this respect that the anonymous academician quoted in the col-
umn goes on to say that he would not repeat his charge publicly, stating that: “[o]ur
academic culture does not permit the raising of such questions.” Thus, while Mr. Oll-
man’s critic is asserting a proposition about Mr. Ollman, he is simultaneously implying

42. While generally agreeing with the methodological approach employed here, the dissent goes
to some considerable length to argue that the statement is verifiable, such as by conducting a poll of
all members of the American Political Science Association. That, however, is most assuredly an ex-
traordinarily burdensome and utterly impracticable procedure in a field as huge and disparate as
political science. Indeed, the fact that the anonymous statement did not purport to be linked to any
such poll or other systematic inquiry into Mr. Ollman’s reputation in the political science commu-
nity suggests that the statement was an expression of opinion, not of fact. But at all events, the end
result of any such poll is cloudy, as Judge Bork maintains and the dissent commendably admits. In-
deed, the dissent suggests a rather limited office for this sort of inquiry, arguing that a poll or expert
testimony “could surely establish that Ollman enjoys some reputation as an academic scholar. . . .”
Dissent at 4 (emphasis in original).
If that is what a poll could show, there is no need either to sacrifice First Amendment values or
go to all the expense and trouble of canvassing the views of thousands of political scientists from
Maine to California. Indeed, the irony of the dissent’s approach is that the Evans and Novak column
made it crystal clear to the reasonable reader that Ollman does enjoy “some reputation” in the polit-
ical science community. As we have already seen, the article states at the very outset that Mr. Ollman
is a professor at a distinguished university and has been recommended by a Faculty Search Commit-
tee to chair the department of a large and well-known state university. It is, of course, those passing
on Ollman’s credentials to step into a prestigious post at a major university who would have a press-
ing and important need to examine his professionalism and scholarship, as opposed to the armchair
opinion of a solitary anonymous professor responding off the cuff to a columnist’s inquiry. Those
clearly stated indicia of professional success and standing overwhelmingly suggest to the reasonable
reader that the statement is one of rhetorical hyperbole. See also concurring opinion of Bork, J., at
33–37.
The dissent refuses to accept the real-world, common-sense conclusion that the statement was,
in context, rhetorical hyperbole, concluding that the article “could as well be understood to portray
Ollman’s prominence as due solely to his vociferousness. . . .” Dissent at 5 (emphasis added). Surely this
contention is itself utterly hyberbolic. An understanding derived from the article, fairly read as a
whole, that Mr. Ollman is a mere vociferous organ of political Marxism and nothing more is at the
least, entirely fanciful. In light of the well-known peer review process by which academic appoint-
ment and tenure decisions are made, the reasonable reader would most reasonably conclude that
Ollman, whatever his politics, enjoyed a goodly measure of repute among scholars highly familiar
with his work. It suspends belief to suggest that New York University and the University of Mary-
land have taken or proposed to take into the community of scholarship one whose reputation was
grounded solely upon his vociferousness. The reasonable reader would, to the contrary, regard the
anonymous professor’s statement as an extravagant way of saying that he thought Mr. Ollman’s
work was without merit and that his assessment was not unique.
§ 15.01 DEFAMATION 767

that, in the contemporary academic environment, no evidence can publicly be adduced


to support it. Whether right or wrong, this admission by the anonymous political scien-
tist would clearly tend to make the reader treat this proposition as opinion.
But most fundamentally, we are reminded that in the accommodation of the con-
flicting concerns reflected in the First Amendment and the law of defamation, the deep-
seated constitutional values embodied in the Bill of Rights require that we not engage,
without bearing clearly in mind the context before us, in a Talmudic parsing of a single
sentence or two, as if we were occupied with a philosophical enterprise or linguistic
analysis. Ours is a practical task, with elemental constitutional values of freedom loom-
ing large as we go about our work. And in that undertaking, we are reminded by Gertz
itself of our duty “to assure to the freedoms of speech and press that ‘breathing space’
essential to their fruitful exercise.” Gertz, supra, 418 U.S. at 342, 94 S.Ct. at 3008. For
the contraction of liberty’s “breathing space” can only mean inhibition of the scope of
public discussion on matters of general interest and concern. The provision of breath-
ing space counsels strongly against straining to squeeze factual content from a single
sentence in a column that is otherwise clearly opinion. As the Ninth Circuit so suc-
cinctly put it, “[t]he court must consider all the words used, not merely a particular
phrase or sentence.” Information Control Corp. v. Genesis One Computer Corp., . . . 611
F.2d at 784.
IV
The judgment of the District Court is therefore
Affirmed.
...
BORK, CIRCUIT JUDGE, with whom WILKEY and GINSBURG, CIRCUIT
JUDGES, and MACKINNON, SENIOR CIRCUIT JUDGE, join, concurring:
While I concur in the judgment of the court and in much of Judge Starr’s scholarly
exposition, I write separately because I do not think he has adequately demonstrated
that all of the allegedly libelous statements at issue here can be immunized as expres-
sions of opinion. The dissents, on the other hand, while acknowledging the importance
of additional factors, seem actually premised on the idea that the law makes a clear dis-
tinction between opinions, which are not actionable as libel, and facts, which are. In my
view, the law as enunciated by the Supreme Court imposes no such sharp dichotomy.
Some lower courts have assumed, as do some members of this court, not only that this
opinion vs. fact formula is controlling but that it is governed, at least primarily, by
grammatical analysis. I think that incorrect. Any such rigid doctrinal framework is in-
adequate to resolve the sometimes contradictory claims of the libel laws and the free-
dom of the press.
This case illustrates that point. It arouses concern that a freshening stream of libel
actions, which often seem as much designed to punish writers and publications as to re-
cover damages for real injuries, may threaten the public and constitutional interest in
free, and frequently rough, discussion. Those who step into areas of public dispute,
who choose the pleasures and distractions of controversy, must be willing to bear criti-
cism, disparagement, and even wounding assessments. Perhaps it would be better if dis-
putation were conducted in measured phrases and calibrated assessments, and with
strict avoidance of the ad hominem; better, that is, if the opinion and editorial pages of
the public press were modeled on The Federalist Papers. But that is not the world in
which we live, ever have lived, or are ever likely to know, and the law of the first amend-
768 15 · MEDIA AND COMMUNICATION TORTS

ment must not try to make public dispute safe and comfortable for all the participants.
That would only stifle the debate. In our world, the kind of commentary that the
columnists Rowland Evans and Robert Novak have engaged in here is the coin in which
controversialists are commonly paid.
...
...
II
There are several factors that convince me Ollman cannot maintain this action.
These considerations are of the type that the Supreme Court and other courts have
deemed important: the danger to first amendment freedoms and the functional mean-
ing of the challenged statement as shown by its context and its qualities as recogniz-
able rhetorical hyperbole. The factors here are: Ollman, by his own actions, entered a
political arena in which heated discourse was to be expected and must be protected;
the “fact” proposed to be tried is in truth wholly unsuitable for trial, which further im-
perils free discussion; the statement is not of the kind that would usually be accepted
as one of hard fact and appeared in a context that further indicated it was rhetorical
hyperbole.
A
Plaintiff Ollman, as will be shown, placed himself in the political arena and became
the subject of heated political debate. That fact has significance in two ways. The first,
and more conventional, point is that the existence of a political controversy is part of
the total context that gives meaning to statements made about Ollman. When we read
charges and countercharges about a person in the midst of such controversy we read
them as hyperbolic, as part of the combat, and not as factual allegations whose truth
we may assume. It will be seen, as the events are recounted, how true that is in Oll-
man’s case.
My second point is less conventional, though by no means ruled out by case law as a
next step in the evolution of doctrine in this troubling field. It is this: in order to protect
a vigorous marketplace in political ideas and contentions, we ought to accept the
proposition that those who place themselves in a political arena must accept a degree of
derogation that others need not. Because this would represent a further development of
the law I have argued it more fully than the first point. But it is not necessary to accept
this proposition in order to accept the first point, that political controversy is part of the
context that tends to show that some apparently factual assertions should be treated as
rhetorical hyperbole and hence as opinions.
...
A hot public controversy erupted the day after Ollman’s nomination for the chair-
manship of the department was disclosed. Among the participants in the dispute,
which was extensively covered by the news media, were the Republican Acting Governor
of Maryland, two members of the university’s board of regents, a state senator, a mem-
ber of the Prince George’s County council, the associate general secretary of the Ameri-
can Association of University Professors, the Washington Post columnist Richard
Cohen, and the three Democratic candidates for governor. Ollman’s nomination thus
became an issue in the 1978 Maryland gubernatorial race. The debate about his nomi-
nation and politics received nationwide press coverage.
In the midst of this controversy, Ollman announced that he had begun to market a
new board game called “Class Struggle,” which he said he had been working on for
§ 15.01 DEFAMATION 769

seven years. He said, “This game will give our people [a] view of how our society works,
and for whom.” Players representing workers moved a little hammer around the board;
those representing capitalists moved a little top hat. Players moved to the final con-
frontation — revolution. “‘Not a violent overthrow,’ Ollman emphasized, ‘but a struc-
tural change.’” The Washington Post, Apr. 28, 1978. The Evans and Novak column ap-
peared on May 4.
The president of the university rejected Ollman’s appointment, and The Washington
Post, in an editorial generally critical of the decision, said: “A teacher’s politics may be
his own business, but it becomes a legitimate criterion by which to judge his appoint-
ment when it calls into question his classroom intentions. In recent weeks, Mr. Oll-
man’s public statements have not made his case more appealing. To many, his remarks
have suggested that he is in fact more interested in polemics than in political science.”
The Washington Post, July 23, 1978, at C 6, col. 1.
The important point about all of this is that Ollman was not simply a scholar who
was suddenly singled out by the press or by Evans and Novak. Whatever the merits of
his scholarship, he was also a political man who publicly tried to forward his political
goals. He had entered the political arena before he put himself forward for the depart-
ment chairmanship. That candidacy merely widened the area within which he was
known and raised for debate a topic of legitimate political concern, a debate which his
further actions fueled. That being so, he must accept the banging and jostling of politi-
cal debate, in ways that a private person need not, in order to keep the political arena
free and vital.
...
The concept of the public, political arena that I have employed has at least some of
the same functional characteristics as the concept of a person who is a public figure for
limited purposes. That similarity may prompt the objection that the public figure con-
cept applies only to distinguish between negligence and actual malice for purposes of li-
ability. That is, of course, an accurate statement of current doctrine, but I know of no
case holding that the concept may not be put to the use proposed, to assist in deciding
how much public bumping a person must accept as a risk of the controversies he
chooses to engage in.
...
[Omitted are several separate opinions, including a concurrence and partial dissents.]
WALD, CIRCUIT JUDGE, with whom CIRCUIT JUDGES EDWARDS and SCALIA
join, dissenting in part.
I basically agree with the plurality’s outline of the appropriate strategy for identifying
absolutely privileged opinion and its judgment that most of the statements made by
Evans and Novak about the plaintiff are non-actionable statements of opinion. How-
ever, in my mind the columnists’ statement that “Ollman has no status within the pro-
fession, but is a pure and simple activist” is an assertion of fact for which its authors can
be made to answer, consistent with the requirements of the first amendment, in a suit
for libel.
In many areas of the law, the factual nature of statements about reputation is rec-
ognized and indeed taken for granted. Lay witnesses are generally allowed to testify as
to someone’s reputation in the community for veracity or violence, for example, al-
though they cannot give their personal opinion as to those matters. . . . Expert wit-
nesses are often asked in the course of their testimony whether other authors, schol-
770 15 · MEDIA AND COMMUNICATION TORTS

ars or practitioners are generally regarded as authorities in the field, and their own
qualifications may be established or attacked on the basis of professional
reputation. . . .
Similarly, as the plurality concedes, the law of libel has long recognized the basically
factual nature of attacks on reputation. I do not dispute the plurality’s assertion that the
first amendment often demands modifications of the common law of libel so as to limit
the chilling effect of potential civil liability on an “uninhibited, robust, and wide-open
debate on public issues.” . . . In particular, the first amendment demands that we evalu-
ate the allegedly libelous statement in the context in which it appeared to determine
whether it can claim the constitutional privilege for statements of opinion. Yet I find
that a fair application of both the plurality’s test and the approach suggested by Judge
Bork in his concurrence indicates that the statement before us is more a statement of
fact than of opinion.
The plurality would ask four questions about the particular statement at issue: (1) do
the words have a “precise core of meaning”; (2) is the statement verifiable; (3) how do
the immediate context — in this case the article — and (4) the broader context affect the
likelihood that the statement will be read as an assertion of fact? Although Judge Bork
calls for a more flexible, ad hoc balancing approach to the fact-opinion distinction, his
analysis of this case strikes me as conceptually indistinguishable from the plurality’s ap-
proach. I fully agree that the distinction between fact and opinion is rarely self-evident
or exact and that we should not attempt to impose any mechanical set of categories on
the complexities of libel litigation. Although the task may not always be an easy one,
however, we are surely obliged to articulate some set of principles to guide the district
court in determining which types of statements can give rise to a libel action.
Indeed, despite the plea for a case-by-case consideration of the “totality of circum-
stances,” Judge Bork apparently recognizes precisely this obligation. After purporting to
engage in an open-textured balancing of first amendment values, Judge Bork relies on
three factors of his own in order to immunize libel defendants from suit. He reasons
that (1) Ollman should be expected to endure the challenged statement because he
placed himself in a public, political debate, (2) the factual nature of the “no status”
statement is inherently unsuitable for jury determination, and (3) the functional mean-
ing and general context of the statement indicate its rhetorical purpose. The first of
these factors represents an unprecedented extension into the fact-opinion doctrine of
the distinction between public and private officials for the purposes of defamation suits.
The second two considerations merely restate the plurality’s test. The challenged state-
ment is surely capable of adjudication if it admits of a stable core of meaning and if Oll-
man’s professional reputation is in fact verifiable. Similarly, the functional meaning or
practical impact of the “no status” assertion can only be determined in light of the fac-
tual and social context surrounding the appellees’ column.
In any event, I believe that the challenged statement is properly characterized as a
factual assertion rather than a rhetorical hyperbole under either the majority’s or Judge
Bork’s approach. The statement that Ollman has no status within his profession un-
doubtedly admits of a sufficiently ascertainable and stable core of meaning: a decisive
plurality of his fellow political scientists do not regard him as a good scholar. That one
might find a wide diversity of views among political scientists about Ollman’s work and
about what constitutes scholarly excellence in no way undermines the commonly un-
derstood meaning of a statement like this about reputation. The statement says to the
ordinary reader that, however each individual scholar evaluates excellence, there is an
overwhelming consensus that Ollman does not have it.
§ 15.01 DEFAMATION 771

Furthermore, Ollman’s scholarly reputation is adequately verifiable. One could, for


instance, devise a poll of American Political Science Association members as to their
opinion, on a scale of one to ten, of the scholarly value of Ollman’s work. Testimony of
prominent political scientists or other measures of reputation would also serve to verify
or refute the statement about Ollman’s reputation without sending the jury into a sea of
speculation.
. . . Whatever their limits as truth finding devices, expert testimony or a poll could
surely establish whether Ollman enjoys some reputation as an academic scholar as op-
posed to a mere activist — whether that scholarly reputation is supported by consensus
or sharp disagreement among his colleagues. Given appropriate instruction by the trial
judge, a jury is as well equipped to determine whether an individual has or has not es-
tablished professional reputation in this context as it is in a host of others. Although I
share Judge Bork’s concern that juries may, in some defamation cases, tend to underem-
phasize the limits imposed by the first amendment, I cannot subscribe to his astonish-
ing view that “[t]he only solution to the problem libel actions pose would appear to be
close judicial scrutiny to ensure that cases about the types of speech and writing essen-
tial to a vigorous first amendment do not reach the jury.” Id. at p. 997 (emphasis added).
Instead, I believe that any such problems should be remedied through careful supervi-
sion by the trial judge and vigorous appellate review, not through stripping the jury of
its historic function merely because qualities such as “professional reputation” are diffi-
cult to adjudicate.
The plurality cites the statement that “[o]ur academic culture does not permit the
raising of such questions” as a concession of non-verifiability by Evans and Novak and
their source that should warn the reader not to accept the foregoing statement about
reputation as one of fact. Op. of Starr, J., at p. 991. But to me — and I believe to the or-
dinary reader as well — the liberal professor’s refusal to be cited publicly means simply
that Ollman’s writings are not openly attacked in the academic community as mere
polemics. Moreover, the majority’s implication that Ollman has no verifiable reputa-
tion — that there is no way of evaluating the conglomeration of his colleagues’ opinions,
public or private, of his work — is belied by the characterization of the political scientist
quoted as one “whose scholarship and reputation as a liberal are well known,” as well as
by the complex procedures for hiring, evaluation and tenure decisions set up by acade-
mic institutions throughout the nation. As judges we are familiar as well with how
prominently academic reputation and stature figures in judicial nominations, evalua-
tions and confirmation proceedings.
The plurality readily concedes that a statement about one’s professional reputation,
even the very statement before us, might be deemed a factual assertion in a different
context. Yet the majority concludes that the facts, noted in the article, that Ollman was
at the time a professor at New York University and was the top candidate for the posi-
tion of chairman of the political science department at the University of Maryland
would undermine a reader’s belief in the factual accuracy of the statement. See Op. of
Starr, J., at p. 990 & n. 42. But as I read the article, these “facts” could as well be under-
stood as an assertion that Ollman’s prominence is due solely to vociferousness and is
entirely out of proportion to his poor reputation as a scholar among his peers. Indeed,
the article as a whole, while it purports merely to raise questions about Ollman’s quali-
fications, promotes itself as a call to sanity and objectivity and away from mere
polemics. Thus, the immediate context in which this statement was made does little to
warn a reader to regard with skepticism what might otherwise appear to be an assertion
of fact.
772 15 · MEDIA AND COMMUNICATION TORTS

...
HARRY T. EDWARDS, CIRCUIT JUDGE, concurring in part and dissenting in part.
For the most part, I thoroughly agree with and I am happy to concur in Judge Starr’s
thoughtful and well-reasoned opinion. Unfortunately, I cannot fully subscribe to the re-
sult reached.
After agonizing over this case, I have finally concluded that it is untenable even to
suggest that the statement “Ollman has no status within the profession, but is a pure and
simple activist” is an absolutely privileged “opinion.” Indeed, as a former member of the
academic community, I am somewhat taken aback by the notion that one’s reputation
within the profession (which is easily verifiable) may be so freely and glibly libelled. I
can find no meaningful case authority to convince me that the First Amendment is de-
signed to condone such loose muckraking.
Had Evans and Novak said that, in their view, Ollman “appeared to be a person with-
out real status within the profession,” this might be a different case. But they went much
further and cited another “well known” scholar to support a verifiable claim that Oll-
man in fact had “no status within the profession.” I agree with Judge Wald that “the
statement says to the ordinary reader [and to the sophisticated reader as well] that,
however each individual scholar evaluates excellence, there is an overwhelming consen-
sus that Ollman does not have it.” This is not a privileged opinion.
Having reached this conclusion, I concur in part in Judge Starr’s opinion and concur
in full in Judge Wald’s and Judge Scalia’s partial dissents.
SCALIA, CIRCUIT JUDGE, with whom CIRCUIT JUDGES WALD and HARRY T.
EDWARDS, join, dissenting in part.
More plaintiffs should bear in mind that it is a normal human reaction, after
painstakingly examining and rejecting thirty invalid and almost absurd contentions, to
reject the thirty-first contention as well, and make a clean sweep of the matter. I have
no other explanation for the majority’s affirmance of summary judgment dismissing
what seems to me a classic and cooly crafted libel, Evans and Novak’s disparagement of
Ollman’s professional reputation. Judge Wald’s opinion has fully responded to the
straightforward contention of the majority opinion that this disparagement should be
regarded as a mere nonactionable statement of opinion. I write separately to survey in
somewhat greater detail the concurrence’s more scenic route to what turns out to be the
same destination.
It seems to me that the concurrence embarks upon an exercise of, as it puts it, consti-
tutional “evolution,” with very little reason and with very uncertain effect upon the
species. Existing doctrine provides ample protection against the entire list of horribles
supposedly confronting the defenseless modern publicist:
— The need to give special scope to political rhetoric is already met by recognition
that hyperbole is an expected form of expression in that context. If Evans and Novak
had chosen to call Ollman a traitor to our nation, fair enough. No reasonable person
would believe, in that context, that they really meant a violation of 18 U.S.C. § 2381
(1982). . . . The concurrence correctly claims the defense of this doctrine for the “no sta-
tus” assertion. Surely it did not mean that Ollman had no status — only that his regard
in the profession was not high. But to say, as the concurrence does, that hyperbole ex-
cuses not merely the exaggeration but the fact sought to be vividly conveyed by the exag-
geration is to mistake a freedom to enliven discourse for a freedom to destroy reputa-
tion. The libel that “Smith is an incompetent carpenter” is not converted into harmless
§ 15.01 DEFAMATION 773

and nonactionable word-play by merely embellishing it into the statement that “Smith
is the worst carpenter this side of the Mississippi.”
— The expectation that one who enters the “public, political arena,” Bork op. at
1004, must be prepared to take a certain amount of “public bumping,” id., is already
fulsomely assured by the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964), requirement of actual malice in the defamation of public
figures. . . .
...
. . . I distrust the more general risk of judicial subjectivity presented by the concur-
rence’s creative approach to first amendment jurisprudence. It is an approach which
embraces “a continuing evolution of doctrine,” id. at 995,* not merely as a consequence
of thoughtful perception that old cases were decided wrongly at the time they were ren-
dered (see, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
(1954)); and not even in response to a demonstrable, authoritatively expressed develop-
ment of public values (see, e.g., Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (plurality
opinion)); but rather in reaction to judicially perceived “modern problems,” Bork op. at
995, which require “evolution of the law in accordance with the deepest rationale of the
first amendment,” id. at 998. It seems to me that the identification of “modern prob-
lems” to be remedied is quintessentially legislative rather than judicial business —
largely because it is such a subjective judgment; and that the remedies are to be sought
through democratic change rather than through judicial pronouncement that the Con-
stitution now prohibits what it did not prohibit before. The concurrence perceives a
“modern problem” consisting of “a freshening stream of libel actions, which . . . may
threaten the public and constitutional interest in free, and frequently rough, discus-
sion,” id. at 993, and of claims for damages that are “quite capable of silencing political
commentators forever,” id. at 995. Perhaps that perception is correct, though it is hard
to square with the explosion of communications in general, and political commentary
in particular, in this “Media Age.” But then again, perhaps those are right who discern a
distressing tendency for our political commentary to descend from discussion of public
issues to destruction of private reputations; who believe that, by putting some brake
upon that tendency, defamation liability under existing standards not only does not im-
pair but fosters the type of discussion the first amendment is most concerned to protect;
and who view high libel judgments as no more than an accurate reflection of the vastly
expanded damage that can be caused by media that are capable of holding individuals
up to public obloquy from coast to coast and that reap financial rewards commensurate
with that power. I do not know the answers to these questions, but I do know that it is
frightening to think that the existence or nonexistence of a constitutional rule (the will-
fully false disparagement of professional reputation in the context of political commen-
tary cannot be actionable) is to depend upon our ongoing personal assessments of such
sociological factors. And not only is our cloistered capacity to identify “modern prob-
lems” suspect, but our ability to provide condign solutions through the rude means of
constitutional prohibition is nonexistent. What a strange notion that the problem of ex-
cessive libel awards should be solved by permitting, in political debate, intentional de-
struction of reputation — rather than by placing a legislative limit upon the amount of
libel recovery. It has not often been thought, by the way, that the press is among the
least effective of legislative lobbyists.

* These remarks of Judge Bork, and some other remarks that Judge Scalia later quotes, are omit-
ted in the editing of Judge Bork’s opinion above. — Ed.
774 15 · MEDIA AND COMMUNICATION TORTS

...
For the foregoing reasons, I join Judge Wald’s dissent on the professional status point.

NOTES
(1) What seems to you to be the heart of the issue in Ollman?
Had Ollman prevailed in his suit, what would you expect to be the effect on the be-
havior of columnists and editors? What part of that effect would constitute a social loss,
and what part would represent a social gain?
How much of the concern over liability in such a case, buried in the arguments
about First Amendment values, lies in the belief that significant numbers of responsible
publishers would face ruin if the decision went the other way? How much lies in fear
about the uncertainty that would afflict insurers trying to set premiums for defamation
insurance for publications that could be construed as statements of either “fact” or
“opinion”?
(2) The Supreme Court’s principal decision on the “fact/opinion” distinction is
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). The case arose from language in a
newspaper column that allegedly libeled a high school wrestling coach with respect to
his testimony at a judicial hearing concerning an altercation at a wrestling meet where
several people were injured. The phrase “the big lie” and the word “lie” appeared in
headlines over the column, which also included the columnist’s statement that the les-
son that would be learned from the hearing by people who attended the wrestling meet
was, “If you get in a jam, lie your way out.” The columnist also said that anyone who
was at the meet “knows in his heart that [the plaintiff coach and a school superinten-
dent, who also testified at the hearing] lied at the hearing after each having given his
solemn oath to tell the truth.”
The majority, in an opinion by Chief Justice Rehnquist, concluded that a jury
could have found the column to have contained defamatory assertions about a “fact”
rather than an “opinion.” The Chief Justice said that “[e]ven if [a] speaker states the
facts upon which he bases his opinion, if those facts are either incorrect or incom-
plete, or if his assessment of them is erroneous, the statement may still imply a false
assertion of a fact.” He declared that “simply couching such statements in terms of
opinion does not dispel these implications,” saying that “the statement, ‘In my opin-
ion Jones is a liar,’ can cause as much damage to reputation as the statement, ‘Jones is
a liar.’” By contrast, he said that it “would not be actionable” to say, “In my opinion
Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and
Lenin.” Id. at 18–20.
Is the Chief Justice’s interpretation of this group of hypotheticals persuasive?
(3) A state law decision on a labor controversy involved the word “scab,” a tradi-
tional term of union opprobrium. The state case is Steinhilber v. Alphonse, 68 N.Y.2d
283, 501 N.E.2d 550, 508 N.Y.S.2d 901 (1986). The material sued upon was a recorded
message on a union telephone (“It is with amazement I report to you, the good mem-
bership of this union that Louise “the scab” Steinhilber has been named secretary of
the week by a local radio station . . . She lacks only three things to get ahead, talent,
ambition, and initiative”), and a banner displayed during picketing activity (“#1
SCAB LOUISE STEINHILBER SUCKS”). In affirming a dismissal, the court of ap-
peals took as a given that “[p]laintiff concededly was a ‘scab’ during [a] strike,” and
concluded:
§ 15.01 DEFAMATION 775

To be sure, in another context, a flat statement that a person lacks talent or


ambition or initiative might be viewed as a factual assertion, if considered
under the first and second Ollman factors. . . . But, “even apparent statements of
fact may assume the character of statements of opinion, and thus be privileged,
when made in public debate, heated labor dispute, or other circumstances in
which an ‘audience may anticipate [the use] of epithets, fiery rhetoric or hy-
perbole’” (Information Control Corp. v. Genesis One Computer Corp., 611 F.2d
781, 784 [9th Cir.]. . . . Here, the inescapable conclusion from the verbal con-
text of the entire message and all of the circumstances under which it was de-
livered is that the statement would be understood by the ordinary listener for
what it is: a tasteless effort to lampoon plaintiff for her activities as a “scab”,
conduct which to the union was an unpardonable transgression.
— 501 N.E.2d at 556.
Do you agree with this analysis? What do you see as the major weight in the social
balance that overcomes the hurt to Steinhilber?
(4) Substitute an “m” for the “b” at the end of “scab” and do you have a defamatory
term? The Colorado Supreme Court said that it depends on whether, in context, the
statement in which the word is used “contains or implies a verifiable assertion of fact or
can reasonably be understood as stating an actual fact.” The context was a two part news
feature concerning a “living will” kit that included a living will form, a medical directive
form and other documents related to the implementation of living wills. One of the
broadcasts included a commentary by a medical ethicist who said of the packet, “I think
it’s a scam.” Although the court noted that the term scam is defined in the dictionary as
“a fraudulent or deceptive act or operation,” it thought that as the ethicist used it, it was
“nothing more than a subjective judgment regarding the value of the . . . packet, ex-
pressed in imaginative and hyperbolic terms.”
The court took a similar view of the ethicist’s assertion concerning purchasers of the
$29.95 packet that “what they get back is they’ve been taken — is what it amounts to —
totally taken.” The court pointed out that the broadcast had juxtaposed “the disclosed
facts that living will forms were available at little or no cost from local hospitals and li-
braries, that many medical ethicists were of the opinion that this form was all that was
needed to implement a valid living will, and that [the plaintiff] charged $29.95 for its
product.” The court noted that the broadcast had begun by asking whether the packet
was “worth it,” and that “[t]he implication is that it is not.” This implication, the court
said, was “not a verifiable fact”: “The worth of a given service or product is an inherently
subjective measure which turns on myriad considerations and necessarily subjective eco-
nomic, asethetic, and personal judgments” — for example, the convenience of having
various documents in the packet that might aid in implementing a living will. NBC Sub-
sidiary (KCNC-TV), Inc. v. The Living Will Center, 879 P.2d 6, 11–14 (Colo. 1994).
(5) One of the most colorful presentations of the qualified privilege of fair comment
and criticism appeared in a 1901 case, Cherry v. Des Moines Leader, 114 Iowa 298, 86
N.W. 323, in which a writer for the Odebolt Chronicle gave this description of a stage
performance by the Cherry Sisters:
“Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the
flower of the family, a capering monstrosity of 35. Their long skinny arms,
equipped with talons at the extremities, swung mechanically, and anon waived
frantically at the suffering audience. The mouths of their rancid features
opened like caverns, and sounds like the wailings of damned souls issued
776 15 · MEDIA AND COMMUNICATION TORTS

therefrom. They pranced around the stage with a motion that suggested a cross
between the danse du ventre and fox trot, — strange creatures with painted
faces and hideous mien. Effie is spavined, Addie is stringhalt, and Jessie, the
only one who showed her stockings, has legs with calves as classic in their out-
lines as the curves of a broom handle.”
In affirming a directed verdict for the defendants, the court disagreed with the plain-
tiffs’ argument that the question of malice, apparently in the sense of spite or ill will,
should have been put to the jury:
The evidence should raise a probability of malice, and be more consistent with
its existence than its absence. When the occasion is privileged the presumption
arises that the publication was bona fide and without malice, and it is incum-
bent on plaintiff to overcome this presumption. If, from defendant’s point of
view, strong words seemed to be justified, he is not to be held liable, unless the
court can say that what he published was to some extent, at least, inconsistent
with the theory of good faith. These rules are well settled, and need no citation
of authorities in their support. One who goes upon the stage to exhibit himself
to the public, or who gives any kind of a performance to which the public is in-
vited, may be freely criticized. He may be held up to ridicule, and entire free-
dom of expression is guaranteed dramatic critics, provided they are not actu-
ated by malice or evil purpose in what they write. Fitting strictures, sarcasm,
or ridicule, even, may be used, if based on facts, without liability, in the ab-
sence of malice or wicked purpose. The comments, however, must be based on
truth, or on what in good faith and upon probable cause is believed to be true,
and the matter must be pertinent to the conduct that is made the subject of
criticism.
...
If there ever was a case justifying ridicule and sarcasm, — aye, even gross ex-
aggeration, — it is the one now before us. According to the record, the perfor-
mance given by the plaintiff and the company of which she was a member was
not only childish, but ridiculous in the extreme. A dramatic critic should be al-
lowed considerable license in such a case. The public should be informed as to
the character of the entertainment, and, in the absence of proof of actual mal-
ice, the publication should be held privileged.
(6) A famous literary lawsuit involved two noted writers. Mary McCarthy, appearing
on the Dick Cavett Show on public television, said that Lillian Hellman was “tremen-
dously overrated, a bad writer, and a dishonest writer.” To Cavett’s inquiry, “What is dis-
honest about her?,” McCarthy replied, “Everything. But I said once in some interview
that every word she writes is a lie, including ‘and’ and ‘the.’” McCarthy defended against
Hellman’s libel action, in part, with the argument that her remark was a statement of
opinion. Would you grant her summary judgment?
(7) Statistics for the first decade of the 21st century indicated that media defendants
had become steadily more successful in defamation actions. From 2000 to 2005, their
rate of winning cases increased to 53.8 percent from 36.3 percent in the 1980s and 40.2
percent in the 1990s. According to a report of the Media Law Resource Center, there
were just 14 trials in 2005 on “libel, privacy and other related claims based on the gath-
ering and publication of information,” and the media defendants won half of those tri-
als. This total of 14 — the recent annual average — was down from an annual average of
27 trials in the 1980s. The president of the organization Media/Professional commented