# Pennsylvania Railroad Company v. Day/Dissent Brennan

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* Concurring Opinion Black
* Dissenting Opinions Black Brennan Stewart
United States Supreme Court
360 U.S. 548
Pennsylvania Railroad Company v. Day
Argued: March 26, 1959. --- Decided: June 29, 1959
Mr. Justice BRENNAN, dissenting.
I think it is demonstrable that the solution of Mr. Justice HARLAN's opinion to the question whether an absolute privilege should be allowed in these cases is not justified by the considerations offered to support it, and unnecessarily deprives the individual citizen of all redress against malicious defamation. Surely the opinion must recognize the existence of the deep-rooted policy of the common law generally to provide redress against defamation. But the opinion in sweeping terms extinguishes that remedy, if the defamation is committed by a federal official, by erecting the barrier of an absolute privilege. In my view, only a qualified privilege is necessary here, and that is all I would afford the officials. A qualified privilege would be the most the law would allow private citizens under comparable circumstances. It would protect the government officer unless it appeared on trial that his communication was (a) defamatory, (b) untrue, and (c) 'malicious.' We write on almost a clean slate here, and even if Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, allows a Cabinet officer the defense of an absolute privilege in defamation suits, I see no warrant for extending its doctrine to the extent done-apparently to include every official having some color of discretion to utter communications to Congress or the public. As Judge Magruder pointed out below, 1 Cir., 250 F.2d 912, 915, present applications of the doctrine of absolute privilege of public officials are narrowly confined, and I think in the light of the considerations involved very rightly so. But Mr. Justice HARLAN's approach seems to clothe with immunity the most obscure subforeman on an arsenal production line who has been delegated authority to hire and fire and who maliciously defames one he discharges.
A qualified privilege, as I have described, would, in giving the official protection against the consequences of his honest mistakes, give him all the protection he could properly claim. As is quoted, if that were all that there were to the matter, it would be indeed 'monstrous' to grant the absolute defense and preclude all examination of the matter at the suit of a citizen claiming legal injury. But what more is involved? The opinion's position is simply that there are certain societal interests in relieving federal officials from judicial inquiry into their motives that outweigh all interest in affording relief. There is adopted Judge Learned Hand's statement of this added factor that is said to make an absolute privilege imperative: 'it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.' Gregoire v. Biddle, 177 F.2d 579, 581. In the first place, Professors Harper and James have, I think, squarely met and refuted that argument on its own terms: 'Where the charge is one of honest mistake we exempt the officer because we deem that an actual holding of liability would have worse consequences than the possibility of an actual mistake (which under the circumstances we are willing to condone). But it is stretching the argument pretty far to say that the mere inquiry into malice would have worse consequences than the possibility of actual malice (which we would not, for a minute, condone). Since the danger that official power will be abused is greatest where motives are improper, the balance here may well swing the other way.' Harper and James, Torts (1956), p. 1645. And in the second place, the courts should be wary of any argument based on the fear that subjecting government officers to the nuisance of litigation and the uncertainties of its outcome may put an undue burden on the conduct of the public business. Such a burden is hardly one peculiar to public officers; citizens generally go through life subject to the risk that they may, though in the right, be subject to litigation and the possibility of a miscarriage of justice. It is one of the goals of a well-operating legal system to keep the burden of litigation and the risks of such miscarriages to a minimum; in this area, which is govened by federal law, proof of malice outside of the bare fact of the making of the statement should be forthcoming, and summary judgment practice offers protection to the defendant; but the way to minimizing the burdens of litigation does not generally lie through the abolition of a right of redress for an admitted wrong. The method has too much of the flavor of throwing out the baby with the bath-today's sweeping solution insures that government officials of high and low rank will not be involved in litigation over their allegedly defamatory statements, but it achieves this at the cost of letting the citizen who is defamed even with the worst motives go without remedy.
There is an even more basic objection to the opinion. It deals with large concepts of public policy and purports to balance the societal interests involved in them. It denies the defamed citizen a recovery by characterizing the policy favoring absolute immunity as 'an expression of a policy designed to aid in the effective functioning of government.' The explanation is said to be that it is 'important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties-suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.' This, I fear, is a gossamer web self-spun without a scintilla of support to which one can point. To come to this conclusion, and to shift the line from the already extensive protection given the public officer by the qualified privilege doctrine, demands the resolution of large imponderables which one might have thought would be better the business of the Legislative Branch. To what extent is it in the public interest that the Executive Branch carry on publicity campaigns in relation to its activities? (Without reviewing all the history, one can say this is a matter on which Congress and the Executive have not always seen eye to eye. See 38 Stat. 212, 5 U.S.C. § 54, 5 U.S.C.A. § 54.) To what extent does fear of litigation actually inhibit the conduct of officers in carrying out the public business? To what extent should it? Where does healthy administrative frankness and boldness shade into bureaucratic tyranny? To what extent is supervision by an administrator's superiors effective in assuring that there will be little abuse of a freedom from suit? To what extent can the referral of constituent complaints by Congressmen to the executive agencies (already myriad in number and quite routinized in processing) take the place of actions in the courts of law in securing the injured citizen redress? Can it be assumed, as the opinion appears to assume, that an absolute privilege so broadly enjoyed will not be subject to severe abuse? Does recent history afford instructive parallels in the experience with constitutionally recognized forms of governmental privilege-say the legislative privilege? I do not purport to know the answers to these questions, and I simply submit that the nature of the questions themselves should lead us to forsake any effort on our own to modify over so wide an area the line the common law generally indicates is to be drawn here. This is particularly so in an area not foreclosed by our previous cases, and one combining the maximum exposure of the citizen's reputation with the most attenuated of interests in the operation of the Government.
The courts, it must be remembered, are not the only agency for fashioning policy here. One would think, in fact, if the solution afforded through a qualified privilege (which would apply between private parties under analogous circumstances) were to be modified on the strength of considerations such as those discussed today, that Congress would provide a more appropriate forum for the determination. The preenc e of the imponderables I have discussed, their political flavor, and their intimate relation to the practicalities of government management would support this conclusion. If the fears expressed materialized and great inconvenience to the workings of the Government arose out of allowing defamation actions subject to a showing of malice, Congress might well be disposed to intervene. And its intervention might take a less drastic form than the solution today. Pursuant to an Act of Congress, the inconvenience to the government officials made defendants in these suits has been alleviated through the participation of the Department of Justice. Rev.Stat. § 359, as amended, 5 U.S.C. § 309, 5 U.S.C.A. § 309; Booth v. Fletcher, 69 App.D.C. 351, 101 F.2d 676. Congress might be disposed to intervene further and pay the judgments rendered against executive officers, or provide for a Tort Claims Act amendment to encompass such actions, eliminating the officer as a formal party. We ought not, as I fear we do today, for all practical purposes foreclose such consideration of the problem by expanding on the comparable common-law privilege and wholly immunizing federal officials from defamation suits whenever they can show that their act was incidental to their jobs.
I would affirm.

## Notes

* ↑ Prosser, Torts (2d ed. 1955), § 95.
* ↑ Actual 'malice' is required to vitiate a qualified privilege, not simply the 'constructive' malice that is inferred from the publication. See Harper and James, Torts (1956), § 5.27. Definitions of actual 'malice' are essayed in Prosser, Torts (2d ed. 1955), pp. 625-629; Harper and James, Torts (1956), § 5.27. See Restatement, Tots, §§ 599-605.
* ↑ The suit in Spalding seems to have been as much, if not more, a suit for malicious interference with advantageous relationships as a libel suit. The Court reviewed the facts and found no false statement. See 161 U.S. at pages 487-493, 16 S.Ct. at pages 633-635. The case may stand for no more than the proposition that where a Cabinet officer publishes a statement, not factually inaccurate, relating to a matter within his Department's competence, he cannot be charged with improper motives in publication. The Court's opinion leaned heavily on the fact that the contents of the statement (which were not on their face defamatory) were quite accurate, in support of its conclusion that publishing the statement was within the officer's discretion, foreclosing inquiry into his motives. Id., 161 U.S. at pages 489 493, 16 S.Ct. at pages 633-635. Different considerations suggest themselves where a statement is defamatory and untrue; it is one thing to say that public officers must answer as to their motives for any official action adversely affecting private interests and another that they must as to the publication of defamatory, untrue matter.
* ↑ The opinion's rationale covers the entire federal bureaucracy, as compared to the numerically much less extensive legislative and judicial privileges. And as to the former, the Constitution speaks, and the resolution of the factors involved in the latter is very obviously within the courts' special competence.
* ↑ See note 2, supra.
* ↑ See the opinion of the court below in No. 350, 103 U.S.App.D.C. 176, 177, 256 F.2d 890, 891.
* ↑ They presently are excluded. 28 U.S.C. § 2680(h), 28 U.S.C.A. § 2680(h).
* ↑ There is controversy as to whether it was mandatory upon petitioner in No. 57 to make his report to the Congressmen. It is not contended that it was mandatory for him to use the words he did, and only if this were so, under my approach, could there possibly be an absolute defense. See Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 79 S.Ct. 1302.
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