Throughout history, there has been considerable controversy regarding how to strike the proper balance between speech and reputation. The English common law cut the balance decisively in favor of reputation, thereby making it easy for defamation plaintiffs to recover damages for defamation. Even in the United States, until the mid-1960s, the courts preferred defamation plaintiffs over free speech. Some states allowed the imposition of liability based on strict liability principles.
The balance between speech and reputation shifted decisively when the U.S. Supreme Court rendered its landmark decision in New York Times Co. v. Sullivan, 367 U.S. 254 (1964). In Sullivan, the Court held that certain defamation plaintiffs, in particular ‘‘public officials’’ and so-called ‘‘public figures,’’ must prove that the defendant had acted with ‘‘actual malice’’ in defaming them in order to recover. Actual malice required a showing that a defendant ‘‘knew’’ that the allegations were false or acted in ‘‘reckless disregard’’ for whether they were true or false. The Court applied this heightened standard of proof in an effort to ensure adequate ‘‘breathing room’’ for speech. Because of the actual malice standard, it became virtually impossible for public official or public figure defamation plaintiffs to recover for defamation.
In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court reassessed the balance between speech and reputation. In that decision, the Court concluded that a state might be justified in applying a lower standard of proof in defamation cases brought by private individuals. The Court distinguished private individuals from those ‘‘who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office.’’ The Court noted that the actual malice standard exacts a ‘‘high price’’ from the victims of defamatory falsehood because many ‘‘deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.’’
The Court found that the ‘‘New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons.’’ However, the Court concluded that the ‘‘state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.’’ The Court noted that private individuals do not have access to the media and therefore cannot easily reply to defamatory allegations. In addition, public officials and public figures necessarily seek out greater public notoriety and therefore must accept the consequences of greater criticism and comment that come with that notoriety.
In Gertz, the Court ultimately concluded that the states could not impose liability without fault in defamation cases brought by private individuals, but otherwise could ‘‘define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.’’ The Court found that this approach would provide a more ‘‘equitable boundary between the competing concerns’’ by recognizing the ‘‘strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation,’’ but yet shielding ‘‘the press and broadcast media from the rigors of strict liability for defamation.’’ However, the Court concluded that the states could not compensate private individuals for anything more than actual injury and could 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.’’
RUSSELL L. WEAVER
References and Further Reading