# Curtis Publishing Company v. Butts/Concurrence Warren

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United States Supreme Court
388 U.S. 130
Curtis Publishing Company v. Butts
Argued: Feb. 23, 1967. --- Decided: June 12, 1967
Mr. Chief Justice WARREN, concurring in the result.
While I agree with the results announced by Mr. Justice HARLAN in both of these cases, I find myself in disagreement with his stated reasons for reaching those results. Our difference stems from his departure from the teaching of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964), to which we both subscribed only three years ago.
In the New York Times case, we held that a State cannot, consistently with the First and Fourteenth Amendments, award damages to a 'public official' for a defamatory falsehood relating to his official conduct unless the verdict is based on proof of 'actual malice'-that is, proof that the defamatory statement was made 'with knowledge that it was false or with reckless disregard of whether it was false or not.' 376 U.S., at 280, 84 S.Ct., at 726. he present cases involve not 'public officials,' but 'public figures' whose views and actions with respect to public issues and events are often of as much concern to the citizen as the attitudes and behavior of 'public officials' with respect to the same issues and events.
All of us agree that the basic considerations underlying the First Amendment require that some limitations be placed on the application of state libel laws to 'public figures' as well as 'public officials.' Similarly, the seven members of the Court who deem it necessary to pass upon the question agree that the respondents in these cases are 'public figures' for First Amendment purposes. Having reached this point, however, Mr. Justice HARLAN'S opinion departs from the standard of New York Times and substitutes in cases involving 'public figures' a standard that is based on 'highly unreasonable conduct' and is phrased in terms of 'extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers' (ante, p. 155). I cannot believe that a standard which is based on such an unusual and uncertain formulation could either guide a jury of laymen or afford the protection for speech and debate that is fundamental to our society and guaranteed by the First Amendment.
To me, differentiation between 'public figures' and 'public officials' and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors are blurred. Since the depression of the 1930's and World War II there has been a rapid fusion of economic and political power, a merging of science, industry, and government, and a high degree of interaction between the intellectual, governmental, and business worlds. Depression, war, international tensions, national and international markets, and the surging growth of science and technology have precipitated national and international problems that demand national and international solutions. While these trends and events have occasioned a consolidation of governmental power, power has also become much more organized in what we have commonly considered to be the private sector. In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment 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.
Viewed in this context, then, it is plain that although they are not subject to the restraints of the political process, 'public figures,' like 'public officials,' often play an influential role in ordering society. And surely as a class these 'public figures' have as ready access as 'public officials' to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of 'public officials.' The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.
I therefore adhere to the New York Times standard in the case of 'public figures' as well as 'public officials.' It is a manageable standard, readily stated and understood, which also balances to a proper degree the legitimate interests traditionaly protected by the law of defamation. Its definition of 'actual malice' is not so restrictive that recovery is limited to situations where there is 'knowing falsehood' on the part of the publisher of false and defamatory matter. 'Reckless disregard' for the truth or falsity, measured by the conduct of the publisher, will also expose him to liability for publishing false material which is injurious to reputation. More significantly, however, the New York Times standard is an important safeguard for the rights of the press and public to inform and be informed on matters of legitimate interest. Evenly applied to cases involving 'public men'-whether they be 'public officials' or 'public figures'-it will afford the necessary insulation for the fundamental interests which the First Amendment was designed to protect.
I have no difficulty in concluding that No. 150, Associated Press v. Walker, must be reversed since it is in clear conflict with New York Times. The constitutional defenses were properly raised and preserved by the petitioner. The trial judge expressly ruled that no showing of malice in any sense had been made, and he reversed an award of punitive damages for that reason. The seven members of this Court who reach the question agree with that conclusion, and all agree that the courts below erred in holding the First Amendment inapplicable. Under any reasoning, General Walker was a public man in whose public conduct society and the press had a legitimate and substantial interest.
But No. 37, Curtis Publishing Co. v. Butts, presents an entirely different situation. There, no First Amendment defenses were raised by the petitioner until after the trial. Because of this failure and because the case was tried before our decision in New York Times, the trial judge did not instruct the jury in terms of the precise formulation we adopted. In connection with the issue of punitive damages, however, the trial judge did give an 'actual malice' instruction which invoked the elements we later held necessary in New York Times. He instructed the jury that it would have to find 'actual malice' before awarding punitive damages, and he continued by defining 'actual malice' as denoting 'wanton or reckless indifference or culpable negligence with regard to the rights of others' and as including notions of 'ill will, spite, hatred and an intent to injure one.' Under the Georgia law of defamation which governed the case, the jury was also specifically required to find that the defamatory statements were false before it could award any damages, and it was so instructed. With the jury's attention thus focused on this threshold requirement of falsity, the references in the instructions to wanton or reckless indifference and culpable negligence most probably resulted in a verdict based on the requirement of reckless disregard for the truth of which we spoke in New York Times. Although the 'actual malice' instructions were not also given in connection with the compensatory damage issue, it is difficult to conceive how petitioner could have been prejudiced by that failure in view of the fact that the jury guided by 'actual malice' instructions, awarded $3,000,000 in punitive damages.
Unquestionably, in cases tried after our decision in New York Times we should require strict compliance with the standard we established. We should not, however, be so inflexible in judging cases tried prior thereto, especially when, as here, the trial judge-unaided by advice or objections from counsel-recognized the essential principle and conformed with it to a substantial degree. Moreover, after the New York Times rule was brought to the trial judge's attention in a post-trial motion, he reviewed the record in light of that precise standard and held that the jury verdict should not be disturbed since 'there was ample evidence from which a jury could have concluded that there was reckless disregard by the (petitioner) of whether the article was false or not.'
An additional factor leads me to the conclusion that we should not insist on the financial and emotional expenses of a retrial here merely because the trial judge's instructions were not given in the precise terms of the present constitutional standard. That factor, to which I briefly adverted above, was the choice of the petitioner in this case to raise only truth as a defense and to omit in its pleadings and at the trial any reference to possible First Amendment defenses or even to the conditional privilege provided by Georgia law for '(c)omments upon the acts of public men in their public capacity and with reference thereto.' I use the word 'choice' in this connection, because the facts lead me, as they did the Court of Appeals, to the firm conclusion that the omissions were deliberate. Although this trial occurred before our decision in New York Times, we had granted certiorari to review that case even before the complaint here was filed. The Alabama law firm which had represented the New York Times in the state courts was involved in the trial of this case. Lead counsel in the cases conferred periodically, and one of the members of the Alabama law firm referred to above sat at the counsel table throughout this trial. The same Alabama law firm was retained to represent petitioner in a lawsuit filed by Coach Paul Bryant, who was also libeled by the magazine article here in question. First Amendment defenses were raised both at the trial of the New York Times case and by the pleadings in the Bryant lawsuit which was settled for a substantial sum of money. But counsel did not raise such defenses here. Given the importance of this case to petitioner and the interplay between overlapping counsel aligned on the same sides of related lawsuits, I can only conclude that tactical or public relations considerations explain the failure here to defend on First Amendment grounds.
Satisfied, as I am, that under the circumstances of the Butts case no retrial should be ordered merely because of the instructions, I turn now to the final duty which this Court has when violations of fundamental constitutional principles are alleged. We must review the evidence to ascertain whether the judgment can stand consistently with those principles. New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728 (1964); Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958).
The petitioner in this case is a major factor in the publishing business. Among its publications is the Saturday Evening Post which published the defamatory falsehoods here in question. Apparently because of declining advertising revenues, an editorial decision was made to 'change the image' of the Saturday Evening Post with the hope that circulation and advertising revenues would thereby be increased. The starting point for this change of image was an announcement that the magazine would embark upon a program of 'sophisticated muckraking,' designed to 'provoke people, make them mad.'
Shortly thereafter, and as an apparent implementation of the new policy, the Saturday Evening Post purchased the rights to the article which formed the subject matter of this case. The slipshod and sketchy investigatory techniques employed to check the veracity of the source and the inferences to be drawn from the few facts believed to be true are detailed at length in the opinion of Mr. Justice HARLAN. Suffice it to say that little investigative effort was expended initially, and no additional inquiries were made even after the editors were notified by respondent and his daughter that the account, to be published was absolutely untrue. Instead, the Saturday Evening Post proceeded on its reckless course with full knowledge of the harm that would likely result from publication of the article. This knowledge was signaled by the statements at the conclusion of the article that 'Wally Butts will never help any football team again' and 'careers will be ruined, that is sure.'
I am satisfied that the evidence here discloses that degree of reckless disregard for the truth of which we spoke in New York Times and Garrison. Freedom of the press under the First Amendment does not include absolute license to destroy lives or careers.
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring in the result in No. 150, and dissenting in No. 37.

## Notes

1 We held unconstitutional in Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209 (1964), a criminal defamation statute which authorized conviction on proof that a defamatory statement had been motivated by ill will. The statute did not require that the defamatory statement be false to sustain such a conviction.
2 In the New York Times case, 'actual malice' instructions were given in connection with punitive damages. However, we noted: 'While Alabama law apparently requires proof of actual malice for an award of punitive damages, where general damages are concerned malice is 'presumed.' Such a presumption is inconsistent with the federal rule. * * * Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed and the case remanded.' 376 U.S., at 283-284, 84 S.Ct., at 727. (Emphasis added.)
The jury in the present case was required to separate compensatory and punitive damages.
3 Cf. Time, Inc. v. Hill, 385 U.S. 374, 411, 87 S.Ct. 534, 554 (1967) (dissenting opinion of Mr. Justice Fortas).
4 Ga.Code Ann. § 105-709(6) provides:
'Privileged communications.-The following are deemed privileged communications:
'6. Comments upon the acts of public men in their public capacity and with reference thereto.'
This privilege is qualified by Ga.Code Ann. § 105-710, which provides:
'Malicious use of privilege.-In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action.'
5 Certiorari was granted in New York Times Co. v. Sullivan on January 7, 1963, 371 U.S. 946, 83 S.Ct. 510, 9 L.Ed.2d 496. The complaint in this case was filed approximately 2 1/2 months later, on March 25, 1963. Counsel here could not have anticipated the precise standard we announced in New York Times. In the Bryant lawui t and, of course, in the New York Times case itself, counsel did, however, raise general First Amendment defenses. No reference whatever to the First Amendment was made by defense counsel in the trial of this case.
6 Webster's New International Dictionary (2d ed., unabr.), p. 1606, reports the source of the term 'muckrake' as follows:
'On April 14, 1906, President Roosevelt delivered a speech in which he used the term muckrake in attacking the practice of making sweeping and unjust charges of corruption against public men and corporations * * *.'
Roget's International Thesaurus § 934(3) lists the following as synonyms: muckrake, throw mud at, throw or fling dirt at, drag through the mud and bespatter.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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