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Happy Friday and welcome to the 8th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:

"Originally posted at Squarestate.net"

First Amendment Friday 1 - Abrams v US
First Amendment Friday 2 - Gitlow v New York
First Amendment Friday 3 - Whitney v California
First Amendment Friday 4 - Brandenbrug V Ohio
First Amendment Friday 5 - Bridges V California
First Amendment Friday 6 – Planned Parenthood V ACLA
First Amendment Friday 7 - New York Times V Sullivan

This week we will actually be looking at two cases which were decided at the same time by the High Court. Basically the Justices opened a can of worms with their decision in New York Times v Sullivan and these two libel cases are the attempt by the Court to put some better boundaries on the extension of protections for publishers in terms of non-elected officials.

The Facts

Case One

Butts v Curtis Publishing

Curtis publishing is the parent company of the Saturday Evening Post (SEP hereafter). In the early 1960’s the SEP wanted to change the tenor of their magazine to what they called "sophisticated muckraking". They published a story in which they claimed Mr. Butt’s, the athletic director of the University of Georgia had conspired with to fix a football game with the University of Alabama. Their principal evidence of this came from George Burnett who through mix up of telephone lines overheard the Mr. Butts talking about the upcoming game with the Alabama coach.

The SEP printed some highly inflammatory accusations based on the assertion of Mr. Burnett who had made notes of the conversation at the time. Their coverage claimed the players of U of G took a beating and were defeated in short order by the knowledge gained form this conversation.

The SEP did not interview the other person who was witness to this phone call. They did not use a sports writer for the article. They did not ask experts if the loss was due to obvious fixing or if the information supposedly discussed was specific enough to cause the loss or if it could have been general information gained by watching game films of the U of G team.

Mr. Butts at the time had been trying to get a job as a professional football coach. The article and it’s accusations were so egregious they prevented him from doing so and made his resignation from the U of G a requirement.

Mr. Butts sued for libel and the SEP based its arguments at trail on the truth defense. This case was sent to the jury with instructions that it was necessary that truth be substantially portrayed in the parts of the article which libel the plaintiff.  

The jury awarded $60,000 in compensatory damages and $3,000,000 in punitive damages finding that the SEP had acted with "malice" under the definition in Georgia law. The Judge reduced the total award to $460,000.

Soon after the Times v Sullivan decision was handed down and Curtis made a motion for a new trial on those grounds the trial judge denied the motion saying

there was ample evidence from which a jury could have concluded that there was reckless disregard by defendant of whether the article was false or not.

On appeal the 5th Circuit found that regardless of what the trial judge thought the fact there were attorneys in common to both the Curtis and Times defense teams, the failure to bring the constitutional argument up in the defense was a wavier of that argument.

Case Two

In 1962 at the University of Mississippi there was a riot over the forced integration of the campus. An Associated Press correspondent on the scene reported a Mr. Walker who had made strong statements against the forced integration of campuses, had been present on the campus and had lead a group of students in a charge against the Federal Marshalls there to integrate the U of Mississippi.

Mr. Walker sued in Texas State Court for $2,000,000 in compensatory and punitive damages. He admitted to being on the campus and to addressing the students, but he insisted he had counseled them not to take action and when they did he had not control over them.

The riot was a turbulent and fast moving story with much confusion. The AP had every reason to trust their reporter and put the story out in an expeditious manner. There was no attempt to show there was improper preparation of the report at trial.

The jury were instructed that compensatory damages could be awarded if the story was not substantially true and that punitive damages could be awarded if

ill will, bad or evil motive, or that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person to be affected by it.

The jury awarded $300,000 in compensatory damages and $500,000 in punitive damages. The trial judge refused to enter the punitive damages as he found there was no evidence of  malice, at best he found there might have been negligence but not actual malice.

He also noted that the failure of malice would have negated the compensatory finding under New York Time, if that decision applied. He found it that it did not in fact apply to this case.

The Texas State Supreme Court agreed with the trial judge on both decisions.

Justice Harlan wrote the opinion. The first thing the Justices had to do was to decide if there were grounds for bringing a defense based on the recent test established in New York Times V Sullivan.

Butts attorney’s argued that the defendants should have brought this constitutional defense up earlier for two reasons – one that it was pretty clear the Court would side with the Times and two that some of the attorney’s in the Times case were on the team for this case.

The court found this to be unacceptable for a couple of reasons – one there needed to be a knowing wavier of rights – meaning you if you don’t present a issue as defense at trail because you weren’t (as the attorney) aware it was available you could not be prevented from using it in the future. Two- the court rejected the idea of presupposing a decision by the Court, however obvious. They were saying in effect, until we put it in the record, it is not an interpretation you should be allowed to argue in lower courts.

Once that was disposed of Justice Harlan goes on a long and winding road to try to make the a test which preserves Times V Sullivan and at the same time deals with the issue of private citizens who are of public interest or may be part of public controversy. All of this is done while trying to allow some semblance of the idea compensation for harm to reputation to also be affective.

He writes:

The modern history of the guarantee of freedom of speech and press mainly has been one of a search for the outer limits of that right. From the fountainhead opinions of Justices Holmes and Brandeis in Schenck, Abrams, and Whitney, which considered the problem when the disruptive effects of speech might strip the protection from the speaker, to our recent decision in Adderley v. Florida, where we found freedom of speech not to include a freedom to trespass, the Court's primary concern has been to determine the extent of the right and the surrounding safeguards necessary to give it "breathing space." NAACP v. Button That concern has perhaps omitted from searching consideration the "real problem" of defining or delimiting the right itself.

Justice Harlan goes on to talk about the placement of the right a free press is positioned between the religious freedom guarantees and the right to petition for redress of grievances in the First Amendment.

He notes:

The dissemination of the individual's opinions on matters of public interest is for us, in the historic words of the Declaration of Independence, an "unalienable right" that "governments are instituted among men to secure." History shows us that the Founders were not always convinced that unlimited discussion of public issues would be "for the benefit of all of us," but that they firmly adhered to the proposition that the "true liberty of the press" permitted "every man to publish his opinion."

Basically the Justice is saying there is a need for balance and it is a hard thing to find the place where these interests are balanced appropriately, but we (the Court) are going to take another swing at it.

He goes on a long discussion of the nature and history of libel all to come to the conclusion that the original way libel was conceived is no longer in sync with the modern reading of the Constitution.

Since the door to all of this was opened by Times V Sullivan, Justice Harlan tries to clarify by saying:

In New York Times, we were adjudicating in an area which lay close to seditious libel, and history dictated extreme caution in imposing liability. The plaintiff in that case was an official whose position in government was such "that the public [had] an independent interest in the qualifications and performance of the person who [held] it." Rosenblatt v. Baer, supra.Such officials usually enjoy a privilege against libel actions for their utterances, see, e.g., Barr v. Matteo, and there were analogous considerations involved in New York Times

He goes on to say:

In the cases we decide today, none of the particular considerations involved in New York Times is present. These actions cannot be analogized to prosecutions for seditious libel. Neither plaintiff has any position in government which would permit a recovery by him to be viewed as a vindication of governmental policy. Neither was entitled to a special privilege protecting his utterances against accountability in libel. We are prompted, therefore, to seek guidance from the rules of liability which prevail in our society with respect to compensation of persons injured by the improper performance of a legitimate activity by another. Under these rules, a departure from the kind of care society may expect from a reasonable man performing such activity leaves the actor open to a judicial shifting of loss. In defining these rules, and especially in formulating the standards for determining the degree of care to be expected in the circumstances, courts have consistently given much attention to the importance of defendants' activities

The Justice is saying here that while there is a standard of protection with regard to the public official there is a different standard for public persons and that standard is primarily based on the care by which an article is prepared. If you do a good job and still make a mistake, there is no malice, merely error. It is when you do shoddy work that you are not protected as a publisher.

The Court looked a both cases and found in Butts the SEP did not come close to the standards of care they should have shown in preparing an article. The desire to change to "sophisticated muckraking" in order to grow its readership is found to be a contributing factor to the lack of care.

This allows the Court to affirm the findings in Butts as there was such a level of negligence as to strip the publisher of its Constitutional protections.

In Walker the verdict is overturned and returned to the lower courts. The reasoning here is in a story about a riot there is a lower standard than in an investigative piece. Having a reliable reporter as an eyewitness to events and then publishing quickly could not be construed has having insufficient care for how the story was prepared.

The mistake was an honest one, and could have been remedied by retraction rather than litigation. The Court in deciding this way goes along with Times v Sullivan in trying to prevent libel laws from becoming de facto censorship based on the jury’s dislike of the subject or the company publishing the article.

Justice Harlan writes:

In contrast to the Butts article, the dispatch which concerns us in Walker was news which required immediate dissemination. The Associated Press received the information from a correspondent who was present at the scene of the events and gave every indication of being trustworthy and competent. His dispatches in this instance, with one minor exception, were internally consistent, and would not have seemed unreasonable to one familiar with General Walker's prior publicized statements on the underlying controversy.  Considering the necessity for rapid dissemination, nothing in this series of events gives the slightest hint of a severe departure from accepted publishing standards. We therefore conclude that General Walker should not be entitled to damages from the Associated Press.

There is one Concurrence and two part Concurrences and parts Dissents in this case, but since it is running long the Dog is going to just talk about the one he finds the most of interest.

The Dissent on Butts, by Justice Black.

Justice Black agrees whole heartedly on Walker but finds that the Court is getting itself deeper in trouble, not less so by its decision on Butts. He writes :

These cases illustrate, I think, the accuracy of my prior predictions that the New York Times constitutional rule concerning libel is wholly inadequate to save the press from being destroyed by libel judgments. Here, the Court reverses the case of Associated Press v. Walker, but affirms the judgment of Curtis Publishing Co. v. Butts. The main reason for this quite contradictory action, so far as I can determine, is that the Court looks at the facts in both cases as though it were a jury, and reaches the conclusion that the Saturday Evening Post, in writing about Butts, was so abusive that its article is more of a libel at the constitutional level than is the one by the Associated Press. That seems a strange way to erect a constitutional standard for libel cases. If this precedent is followed, it means that we must, in all libel cases hereafter, weigh the facts and hold that all papers and magazines guilty of gross writing or reporting are constitutionally liable, while they are not if the quality of the reporting is approved by a majority of us. In the final analysis, what we do in these circumstances is to review the factual questions in cases decided by juries -- a review which is a flat violation of the Seventh Amendment.

His concern is the High Court is not acting in the right fashion by taking on the decision of what is and what is not a violation of the publishing standards which the Majority found grounds to strip constitutional protections from the SEP. He is (rightly to the Dog) concerned about how many such cases would need to go all the way to the Supreme Court before a standard which other courts could apply would be developed.

He finishes with:

It strikes me that the Court is getting itself in the same quagmire in the field of libel in which it is now helplessly struggling in the field of obscenity. No one, including this Court, can know what is and what is not constitutionally obscene or libelous under this Court's rulings. Today, the Court will not give the First Amendment its natural and obvious meaning by holding that a law which seriously menaces the very life of press freedom violates the First Amendment. In fact, the Court is suggesting various experimental expedients in libel cases,] all of which boil down to a determination of how offensive to this Court a particular libel judgment may be, either because of its immense size or because the Court does not like the way an alleged libelee was treated. Again, I suggest (see Time, Inc. v. Hill,) that we are rapidly but surely getting ourselves in the dilemma we found ourselves in when we were compelled to overrule the ill-starred case of Betts v. Brady, in order that the state courts of the country might be able to determine with some degree of certainty when an indigent person was entitled to the benefit of a lawyer and avoid the spawning of hundreds of habeas corpus cases that finally raised questions that a lawyer could and would have raised at the trial.

I think it is time for this Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments.

Pretty strong words to the way the Dog thinks. Justice Black is taking the position that Times v Sullivan did not go far enough, that there is a compelling need in a democracy for the press to be totally free from attempts to redress damage to reputation. This is basically saying it is more important to have the views of all known than it is to preserve someone’s earned reputation.

So there we are. What do you think Citizens? Did the Court thread the needle? Were they able to establish a standard that works or will they have to, as Justice Black argues, come back to this issue a few more times?

The floor is yours.

House keeping: As always thanks to the Legal Information Institute for access to the opinions and dissents. You can find today’s decisions here

Originally posted to Something the Dog Said on Fri Jun 19, 2009 at 10:12 AM PDT.

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