Document ID: A:\NYTIMES2.TXT NEW YORK TIMES CO. v. SULLIVAN No. 39 SUPREME COURT OF THE UNITED STATES 376 U.S. 254; 84 S. Ct. 710; 1964 U.S. LEXIS 1655; 11 L. Ed. 2d 686; 95 A.L.R.2d 1412; 1 Media L. Rep. 1527 January 6, 1964, Argued March 9, 1964, Decided * * Together with No. 40, Abernathy et al. v. Sullivan, also on certiorari to the same court, argued January 7, 1964. PRIOR HISTORY: [***1] CERTIORARI TO THE SUPREME COURT OF ALABAMA. DISPOSITION: 273 Ala. 656, 144 So. 2d 25, reversed and remanded. SYLLABUS: Respondent, an elected official in Montgomery, Alabama, brought suit in a state titioners and many others. The advertisement included statements, some of which were fals dent claimed the statements referred to him because his duties included supervision of the that for the purpose of compensatory damages malice was presumed, so that such damages co instructed that mere negligence was not evidence of actual malice [***2] and would not j hat a verdict for respondent should differentiate between compensatory and punitive damage icial for defamatory falsehood relating to his official conduct unless he proves "actual m (a) Application by state courts of a rule of law, whether statutory or not, to award a (b) Expression does not lose constitutional protection to which it would otherwise be e (c) Factual error, content defamatory of official reputation, or both, are insufficient is alleged and proved. Pp. 279-283. (d) State court judgment entered upon a general verdict which does not differentiate be o the basis of the verdict and requires reversal, where presumption of malice is inconsist (e) The evidence was constitutionally insufficient to support the judgment for responde COUNSEL: Herbert Wechsler argued the cause for petitioner in No. 39. With him on the brie William P. Rogers and Samuel R. Pierce, Jr. argued the cause for petitioners in No. 40. ephen J. Jelin and Charles [***4] B. Markham. M. Roland Nachman, Jr. argued the cause for respondent in both cases. With him on the Briefs of amici curiae, urging reversal, were filed in No. 39 by William P. Rogers, Ger ae, urging reversal, was filed in both cases by Edward S. Greenbaum, Harriet F. Pilpel, Me JUDGES: Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg OPINIONBY: BRENNAN OPINION: [*256] [**713] MR. JUSTICE BRENNAN delivered the opinion ofthe Court. We are required in this case to determine for the first time the extent to which the co onduct. Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Mont ment of Cemetery and Department of Scales." He brought this civil libel action against the w York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded Respondent's complaint alleged that he had been libeled by statements in a full-page ad orld knows by now, thousands of Southern Negro students are engaged in widespread non-viol that "in their efforts to uphold these guarantees, they are being met by an unprecedente ding [*257] paragraphs purported to illustrate the "wave of terror" by describing certai al defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indic - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 A copy of the advertisement is printed in the Appendix. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The text appeared over the names of 64 persons, many widely known for their [**714] a for dignity and freedom warmly endorse this appeal," appeared the names of the four indivi bottom of the page by the "Committee to Defend Martin Luther King and the Struggle for Fre Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth Third paragraph: "In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Ca tire student body protested to state authorities by refusing to re-register, their dining Sixth paragraph: "Again and again the Southern violators have answered Dr. King's peaceful protests with imes -- for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him Although neither of these statements mentions respondent by name, he contended that the the campus with police. He further claimed that the paragraph would be read as imputing t nce arrests are ordinarily made by the police, the statement "They have arrested [Dr. King described acts and with the "Southern violators." Thus, he argued, the paragraph would be and charging him with perjury. Respondent and six other Montgomery residents testified th - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Respondent did not consider the charge of expelling the students to be applicable to - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It is uncontroverted that some of the statements contained in the two paragraphs were n nthem and not "My [*259] Country, 'Tis of Thee." Although nine students were expelled rthouse on another day. Not the entire student body, but most of it, had protested the exp mpus dining hall was not padlocked on any occasion, [***10] and the only students who ere deployed near the campus in large numbers on three occasions, they did not at any time had not been arrested seven times, but only four; and although he claimed to have been as ault. On the premise that the charges in the sixth paragraph could be read as referring to hi ild were there, both of these occasions antedated respondent's tenure as Commissioner, and ace before respondent became Commissioner. Although Dr. King had in fact been indicted (h nt. [*260] Respondent made no effort to prove that he suffered actual pecuniary loss as a ssociated with anybody who would be a party to such things that are stated in that ad," an nor any of the others testified that he had actually believed the statements in their supp - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Approximately 394 copies of the edition of the Times containing the advertisement we 0 copies. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***12] The cost of the advertisement was approximately $ 4800, and it was published by the Ti h, Chairman of the Committee, certifying that the persons whose names appeared on the adve as sufficient proof of authorization it followed its established practice. There was tes . . warmly endorse this appeal," and the list of names thereunder, which included those of d not authorized the use of his name, and that he had been unaware of its use until receip ement for publication because he knew nothing to cause him to believe that anything in it nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, Alabama law denies a public officer recovery of punitive damages in a libel action brou comply. Alabama Code, Tit. 7, @ 914. Respondent served such a demand upon each of the pe e advertisement and therefore had not published the statements that respondent alleged had re somewhat puzzled as to how you think the statements in any way reflect on you," and "yo ithout answering the letter. The Times did, however, subsequently publish a retraction of ions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Ed "We did that because we didn't want anything that was published by The Times to be a refle rthermore, we had by that time learned more of the actual facts which the ad purported to o chairman . . . ." On the other hand, he testified that he did not think that "any of the The trial judge submitted the case to the jury under instructions that the statements i ent and that the statements were made "of and concerning" respondent. The jury was instru ed," "general damages need not be alleged or proved but are presumed," and "punitive damag amages, which are compensatory in nature -- apparently requires proof of actual malice und ward of exemplary or punitive damages." He refused to charge, however, that the jury must a verdict for respondent differentiate between compensatory and punitive damages. The jud dments. [**717] In affirming the judgment, the Supreme Court of Alabama sustained the trial j reputation, profession, trade or business, or charge him with an indictable offense, or t s published of and concerning the plaintiff"; [***17] and that it was actionable witho ind the statements to have been made "of and concerning" respondent, stating: "We think it ing body, and more particularly under the direction and control of a single commissioner. 75, 144 So. 2d, at 39. In sustaining the trial court's determination that the verdict was ticles already published which would have demonstrated the falsity of the allegations in t then known to the Times and "the matter contained in the advertisement was equally false paragraphs were "substantially correct." Id., at 686-687, 144 So. 2d, at 50-51. The court itioners' constitutional contentions with the brief statements that "The First Amendment o 144 So. 2d, at 40. Because of the importance of the constitutional issues involved, we granted the separat the Alabama courts is constitutionally deficient for failure to provide the safeguards for ficial conduct. n4 [**718] [*265] We further hold that under the proper safeguards the - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Since we sustain the contentions of all the petitioners under the First Amendment's f violation of the Fourteenth Amendment. The individual petitioners contend that the judg d that the Due Process and Equal Protection Clauses were violated by racial segregation an imits of the Due Process Clause. The latter claim is foreclosed from our review by the ru ks "fair or substantial support" in prior Alabama decisions. See Thompson v. Wilson, 224 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***20] I. We may dispose at the outset of two grounds asserted to insulate the judgment of the Al tate action and not private action." That proposition has no application to this case. Al their constitutional freedoms of speech and press. It matters not that that law has been which state power has been applied but, whatever the form, whether such power has in fact The second contention is that the constitutional guarantees of freedom of speech and of commercial" advertisement. The argument relies on Valentine v. Chrestensen, 316 U.S. 52, even as applied to a handbill having a commercial message on one side but a protest again mmunicating [*266] information and disseminating opinion"; its holding was based upon th The publication here was not a "commercial" advertisement in the sense in which the wor movement whose existence and objectives are matters of the highest public interest [***2 s the fact that newspapers and books are sold. Smith v. California, 361 U.S. 147, 150; cf so might shut off an important outlet for the promulgation of information and ideas by pe Lovell v. Griffin, 303 U.S. 444, 452; Schneider v. State, 308 U.S. 147, 164. The effect wo ress v. United States, 326 U.S. 1, 20. [**719] To avoid placing such a handicap upon the o not forfeit that protection because they were published in the form of a paid advertisem - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 See American Law Institute, Restatement of Torts, @ 593, Comment b (1938). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*267] II. Under Alabama law as applied in this case, a publication is "libelous per se" if the wo h as to "injure him in his public office, or impute misconduct to him in his office, or wa re the plaintiff is a public official his place in the governmental hierarchy is sufficien r se" has been established, the defendant has no defense as to stated facts unless he can a. 474, 494-495, 124 So. 2d 441, 457-458 (1960). His privilege of "fair comment" for expre . Unless he can discharge the burden of proving truth, general damages are presumed, and m ny event forestall a punitive award by a retraction meeting the statutory requirements. G ht. Johnson Publishing Co. v. [***25] Davis, supra, 271 Ala., at 495, 124 So. 2d, at 45 [*268] The question before us is whether this rule of liability, as applied to an act nth Amendments. Respondent relies heavily, as did the Alabama courts, on statements of this Court to th libel laws to impose sanctions upon expression critical of the official conduct of public as do other public servants," implied no view as to what remedy might constitutionally be e both defamatory of a racial group [***26] and "liable to cause violence and disorder. punishing libel"; for "public men, are, as it were, public property," and "discussion cann on of constitutional limitations upon the power to award damages for libel of a public off , we are compelled by neither precedent nor policy to give any more weight to the epithet n9 breach of the peace, n10 obscenity, n11 solicitation of legal business, n12 and the va limitations. It must be measured by standards that satisfy the First Amendment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Konigsberg v. State Bar of California, 366 U.S. 36, 49, and n. 10; Times Film Corp. 8-349; Chaplinsky v. New Hampshire, 315 U.S. 568, 572; Near v. Minnesota, 283 U.S. 697, 71 n7 Herndon v. Lowry, 301 U.S. 242. n8 Bridges v. California, 314 U.S. 252; Pennekamp v. Florida, 328 U.S. 331. n9 De Jonge v. Oregon, 299 U.S. 353. n10 Edwards v. South Carolina, 372 U.S. 229. n11 Roth v. United States, 354 U.S. 476. n12 N. A. A. C. P. v. Button, 371 U.S. 415. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***28] The general proposition that freedom of expression upon public questions is secured by the bringing about of political and social changes desired by the people." Roth v. United and that changes may be obtained by lawful means, an opportunity essential to the security ne's mind, although not always with perfect good taste, on all public institutions," Bridg U.S. 415, 429. [*270] The First Amendment, said Judge Learned Hand, "presupposes [** lways will be, folly; but we have staked upon it our all." United States v. Associated Pre its classic formulation: "Those who won our independence believed . . . that public discussion is a political du w that order cannot be secured merely through fear of punishment for its infraction; that that the path of safety lies in the opportunity to discuss freely supposed grievances and ey eschewed silence coerced by law -- the argument of force in its worst form. Recognizin Thus we consider this case against the background of a profound national commitment to harp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1, , would seem clearly to qualify for the constitutional protection. The question is whethe Authoritative interpretations of the First Amendment guarantees have consistently refus he burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U.S. 513, 525-526. 1 U.S. 415, 445. As Madison said, "Some degree of abuse is inseparable from the proper use ecticut, 310 U.S. 296, 310, the Court declared: "In the realm of religious faith, and in that of political belief, sharp differences ar s, resorts to exaggeration, to vilification of men who have been, or are, prominent in chu sses and abuses, these liberties are, in the long view, essential to enlightened opinion a That erroneous statement is inevitable in free debate, and that it must be protected if th ized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, essman's libel suit based upon a newspaper article charging him with anti-Semitism in opp "Cases which impose liability for erroneous reports of the political conduct of officia **722] or any other individual. The protection [***33] of the public requires not me ors of fact, particularly in regard to a man's mental states and processes, are inevitable - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 See also Mill, On Liberty (Oxford: Blackwell, 1947), at 47: ". . . To argue sophistically, to suppress facts or arguments, to misstate the elements re not considered, and in many other respects may not deserve to be considered, ignorant o to interfere with this kind of controversial misconduct." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Injury to official reputation [***34] affords no more warrant for repressing speech on of the courts does not justify the punishment as criminal contempt of criticism of the , 328 U.S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, 331 U.S., at 37 tional protection merely because it is effective criticism and hence diminishes their offi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 The climate in which public officials operate, especially during a political campai e usually have filled the air; and hints of bribery, embezzlement, and other criminal cond For a similar description written 60 years earlier, see Chase, Criticism of Public Offi - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - If neither factual error nor defamatory content suffices to remove the constitutional s the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of th m. That statute made it a crime, punishable by a $ 5,000 fine and five years in prison, " , or either house of the Congress . . . , or the President . . . , with intent to defame . d States." The Act allowed the defendant the defense of truth, and provided that the jury in by Jefferson and Madison. In the famous Virginia Resolutions of 1798, the General Asse "doth particularly protest against the palpable and alarming infractions of the Constituti delegated by the Constitution, but, on the contrary, expressly and positively forbidden b public characters and measures, and of free communication among the people thereon, which Madison prepared the Report in support of the protest. His premise was that the Constitut eflection of the people's distrust of concentrated power, and of power itself at all level t natural and necessary, under such different circumstances," he asked, "that a different id: "If we advert to the nature of Republican Government, we shall find that the censorial ress, his Report said: "In every state, probably, in the Union, the press has exerted a fr the freedom of the press has stood; on this foundation it yet stands . . . ." 4 Elliot's D an form of government. n15 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 The Report on the Virginia Resolutions further stated: "It is manifestly impossible to punish the intent to bring those who administer the gov ion of those who administer the government, if they should at any time deserve the contemp s intrenched in penal statutes against the just and natural effects of a culpable administ "Let it be recollected, lastly, that the right of electing the members of the governmen erits and demerits of the candidates for public trust, and on the equal freedom, consequen - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***39] [*276] Although the Sedition Act was never tested in this Court, n16 the attack upon . See, e. g., Act of July 4, 1840, c. 45, 6 [**724] Stat. 802, accompanied by H. R. Rep ort with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardo sedition law, because I considered, and now consider, that law to be a nullity, as absolut pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. 343 U.S. 250, 288-289; Douglas, The Right of the People (1958), p. 47. See also Cooley, C s that the Act, because of the restraint it imposed upon criticism of government and publi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 The Act expired by its terms in 1801. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - There is no force in respondent's argument that the constitutional limitations implicit Federal Government, and [*277] that Jefferson, for one, while denying the power of Co S. 494, 522, n. 4 [***41] (concurring opinion). But this distinction was eliminated wi 66; Schneider v. State, 308 U.S. 147, 160; Bridges v. California, 314 U.S. 252, 268; Edwar What a State may not constitutionally bring about by means of a criminal statute is li hibiting than the fear of prosecution under a criminal statute. See City of Chicago v. Tr r prints of and concerning another any accusation falsely and maliciously importing the co exceeding $ 500 and a prison sentence of six months. Alabama Code, Tit. 14, @ 350. Pres able doubt. These safeguards are not available to the defendant in a civil action. The j ma criminal statute, and one hundred times greater than that provided by the Sedition Act. tioners for the same publication. n18 Whether or not a newspaper can survive a succession annot survive. Plainly the Alabama law of civil libel is "a form of regulation that creat . - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 Cf. Farmers Union v. WDAY, 360 U.S. 525, 535. n18 The Times states that four other libel suits based on the advertisement have been f y one of these cases that has yet gone to trial; and that the damages sought in the other - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The state rule of law is not saved by its allowance of the defense of truth. A defense e held indispensable to a valid conviction of a bookseller for possessing obscene writings "For if the bookseller is criminally liable without knowledge of [***44] the contents, ally protected as well as obscene literature. . . . And the bookseller's burden would beco liability, thus would tend to restrict the public's access to forms of the printed word w e whole public, hardly less virulent for being privately administered. Through it, the di A rule compelling the critic of official conduct to guarantee the truth of all his factual ith the burden of proving it on the defendant, [***45] does not mean that only false spe l was true in all its factual particulars. See, e. g., Post Publishing Co. v. Hallam, 59 of official conduct may be deterred from voicing their criticism, even though it is believ ly statements which "steer far wider of the unlawful zone." Speiser v. Randall, supra, 357 U.S., at 526. The rule thus dampens the vigor and limits the variety o - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 Even a false statement may be deemed to make a valuable contribution to public deba , at 15; see also Milton, Areopagitica, in Prose Works (Yale, 1959), Vol. II, at 561. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***46] The constitutional guarantees require, we think, a federal rule that prohibits a public ce" -- that is, with knowledge that it was false or with reckless disregard of whether it n, 78 Kan. 711, 98 P. 281 (1908). The State Attorney General, a candidate for re-election g to state facts relating to his official conduct in connection with a school-fund transac "where an article is published and circulated among voters for the sole purpose of giving cast their ballot more intelligently, and the whole thing is done in good faith and witho and in such a case the burden is on the plaintiff to show actual malice in the publicatio In answer to a special question, the jury found that the plaintiff had not proved actual m 724, 98 P., at 286): "It is of the utmost consequence that the people should discuss the character and qualific hey more than counterbalance the inconvenience of private persons whose conduct may be inv public benefit from publicity is so great, and the chance of injury to private characte The court thus sustained the trial court's instruction as a correct statement of the law, "In such a case the occasion gives rise to a privilege, qualified to this extent: any one [*282] public concern, public men, and candidates for office." 78 Kan., at 723, 98 P. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 E. g., Ponder v. Cobb, 257 N. C. 281, 299, 126 S. E. 2d 67, 80 (1962); Lawrence v. ssn., 126 W. Va. 292, 307, 27 S. E. 2d 837, 844 (1943); Salinger v. Cowles, 195 Iowa 873, lying the same rule to candidates for public office, see, e. g., Phoenix Newspapers v. Cho ader Corp., 103 N. H. 426, 438, 174 A. 2d 825, 833 (1961), cert. denied, 369 U.S. 830. The consensus of scholarly opinion apparently favors the rule that is here adopted. E. Fair Comment, 8 Tex. L. Rev. 41, 61 (1929); Smith, Charges Against Candidates, 18 Mich. L Lane, 1903), at 604, 616-628. But see, e. g., American Law Institute, Restatement of Tor (1910). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***49] Such a privilege for criticism of official conduct n21 is appropriately analogous to th eral official to be absolutely privileged if made "within the outer perimeter" of his duti njoy. n22 But all hold that all officials are protected unless actual malice can be prove of policies of government" and "dampen the ardor of all but the most resolute, or the mos en-critic of government. It is as much his duty to criticize as it is the official's duty a, p. 275, "the censorial power is in the people over the Government, and not in the Gover fair equivalent of the immunity granted to the officials themselves. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n21 The privilege immunizing honest misstatements of fact is often referred to as a "co er, Torts (2d ed., 1955), @ 95. n22 See 1 Harper and James, Torts, @ 5.23, at 429-430 (1956); Prosser, Torts (2d ed., 1 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We conclude that such a privilege is required by the First and Fourteenth Amendments. III. We hold today that the Constitution delimits a State's [***51] power to award damag malice is applicable. While [**728] Alabama law apparently requires proof of actual m rule. "The power to create presumptions is not a means of escape from constitutional res e plaintiff . . . ." Lawrence v. Fox, 357 Mich. 134, 146, 97 N. W. 2d 719, 725 (1959). n25 other. But it is impossible to know, in view of the general verdict returned. Because of S. 287, 291-292; see Yates v. United States, 354 U.S. 298, 311-312; Cramer v. United State - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 We have no occasion here to determine how far down into the lower ranks of governme ed. Cf. Barr v. Matteo, 360 U.S. 564, 573-575. Nor need we here determine the boundaries and that the allegations in the advertisement concerned what was allegedly his official co t they might not be considered to involve respondent's official conduct if he himself had at the advertisement connects him with them only in his official capacity as the Commissio as referring to respondent at all, they must be read as describing his performance of his n24 Johnson Publishing Co. v. Davis, 271 Ala. 474, 487, 124 So. 2d 441, 450 (1960). Thu f exemplary or punitive damages in an action for libel." The court refused, however, to give the following instruction which had been requested "I charge you . . . that punitive damages, as the name indicates, are designed to punish t ded only in the event that you, the jury, are convinced by a fair preponderance of the evi gligence and recklessness and not of just ordinary negligence or carelessness in publishin The trial court's error in failing to require any finding of actual malice for an award to punitive damages. [***54] n25 Accord, Coleman v. MacLennan, supra, 78 Kan., at 741, 98 P., at 292; Gough v. Tribu - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Since respondent may seek a new trial, we deem that considerations of effective judicia This Court's duty is not limited to the elaboration of constitutional principles; we mus stion is one of alleged trespass across "the line between speech unconditionally guarantee rselves the statements in issue and the circumstances under which they were made to see . . . whether they [***55] are of a character which the principles of [**729] the First .S. 371; Sunshine Book Co. v. Summerfield, 355 U.S. 372. We must "make an independent exam the field of free expression. n26 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 The Seventh Amendment does not, as respondent contends, preclude such an examinatio es of the common law," is applicable to state cases coming here. Chicago, B. & Q. R. Co. rning rules of federal law have been properly applied to the facts. "This Court will revi order to pass upon the Federal question, to analyze the facts." Fiske v. Kansas, 274 U.S. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***56] Applying these standards, we consider that the proof presented to show actual malice l der the proper rule of law. The case of the individual petitioners requires little discus ey were aware of any erroneous statements or were in any way reckless in that regard. The As to the Times, we similarly conclude that the facts do not support a finding of actua stitutional warrant for the Alabama Supreme Court's conclusion that it was a "cavalier ign erefrom." The statement [***57] does not indicate malice at the time of the publication; and there was no evidence to impeach the witness' good faith in holding it. The Times' f tutional purposes. Whether or not a failure to retract may ever constitute such evidence, asonably be taken to refer to respondent at all. Second, it was not a final refusal, sinc ] necessary proof. It may be doubted that a failure to retract which is not itself eviden e the [**730] explanation given by the Times' Secretary for the distinction drawn betw Finally, there is evidence that the Times published the advertisement without checking e advertisement was false, since the state of mind required for actual malice would have sons to make the check, the record shows that they relied upon their knowledge of the good dividual, certifying that the use of the names was authorized. There was testimony that t attacks of a personal character"; n27 their failure to reject it on this ground was not un nally insufficient to show the recklessness that is required for a finding of actual malic 12 P. 2d 150, 154-155 (1957). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n27 The Times has set forth in a booklet its "Advertising Acceptability Standards." Lis . may mislead," and that contain "attacks of a personal character." In replying to respon otherwise met the advertising acceptability standards promulgated," it had been approved - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***60] We also think the evidence was constitutionally defective in another respect: it was in rtisement and the testimony of six witnesses to establish a connection between it and hims ny of a newspaper editor . . . ; a real estate and insurance man . . . ; the sales manager worked . . . . Each of these witnesses stated that he associated the statements with resp There was no reference to respondent in the advertisement, either by name or official posi a perjury prosecution instituted against [***61] him -- did not even concern the polic accusing respondent of personal involvement in the acts [*289] in question. The state ads of police . . . ringed the Alabama State College Campus" after the demonstration on t pus but had not actually "ringed" it and had not gone there in connection with the State C ufficient to injure respondent's reputation may itself raise constitutional problems, but to respondent as an individual. Support for the asserted reference must, therefore, be s nd the bare fact that he was in overall charge of the Police Department and thus bore offi herwise being personally involved in it, they based this notion not on any statements in t ust have been. n28 This reliance on the bare [*290] fact of respondent's [**732] of imes] in the aspect that the libelous [*291] matter was not of and concerning the [pla "We think [***63] it common knowledge that the average person knows that municipal a of a single commissioner. In measuring the performance or deficiencies of such groups, pr - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n28 Respondent's own testimony was that "as Commissioner of Public Affairs it is part o by virtue of being Police Commissioner and Commissioner of Public Affairs," he was charged is my feeling that it reflects not only on me but on the other Commissioners and the commu Grover C. Hall testified that to him the third paragraph of the advertisement called to nsibility is exclusively with the constabulary." It was "the phrase about starvation" that Arnold D. Blackwell testified that the third paragraph was associated in his mind with ave thought "that the people on our police force or the heads of our police force were act ore it would be his responsibility." Harry W. Kaminsky associated the statement about "truckloads of police" with respondent ies that would do that -- arrest folks for speeding and loitering and such as that." Asked still say he is the Police Commissioner and those men are working directly under him and t H. M. Price, Sr., testified that he associated the first sentence of the third paragrap an individual." William M. Parker, Jr., testified that he associated the statements in the two paragrap "I think if you were the Police Commissioner I would have thought it was speaking of you." Horace W. White, respondent's former employer, testified that the statement about "truc ringing the campus or having shotguns and tear-gas, he replied: "Well, I thought of his d to re-employ respondent if he had believed the advertisement was "the fact that he allowe n29 Compare Ponder v. Cobb, 257 N. C. 281, 126 S. E. 2d 67 (1962). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This proposition has disquieting implications for criticism of governmental conduct. F ystem of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N. E. 86, personal criticism, and hence potential libel, of the officials of whom the government is lf said of the advertisement, "reflects not only on me but on the other Commissioners and by the Alabama courts strikes at the very center of the constitutionally protected area of s was a libel of an official responsible for those operations. Since it was relied on exc he statements referred to respondent. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n30 Insofar as the proposition means only that the statements about police conduct libe ican Law Institute, Restatement of Torts (1938), @ 607. Since the Fourteenth Amendment req opinion based upon privileged, as well as true, statements of fact. Both defenses are of - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***66] The [**733] judgment of the Supreme Court of Alabama is reversed and the case is re Reversed and remanded. [APPENDIX] [SEE ILLUSTRATION IN ORIGINAL.] CONCURBY: BLACK; GOLDBERG CONCUR: [*293] MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring. I concur in reversing this half-million-dollar judgment against the New York Times Comp y public officials against critics of their official conduct." Ante, p. 283. I base my vo eir official conduct" but completely prohibit a State from exercising such a power. The C lusive, abstract concept, hard to prove and hard to disprove. The requirement that [***6 guard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exc riticisms of the Montgomery agencies and officials. I do not base my vote to reverse on an o was then the Montgomery City Commissioner having supervision of the city's police; for p itutional power to use its civil libel law to impose damages on the press for criticizing ars the State from [***68] fixing the amount of damages. The half-million-dollar verdict does give dramatic proof, however, that state libel law cials. The factual background of this case emphasizes the imminence and enormity of that ommanded segregation of races in the public schools and other public places, despite our s ion has been manifested. This hostility has sometimes extended itself to persons who favor f testimony to show that Commissioner Sullivan suffered any actual damages at all suggests ealistically, this record lends support to an inference that instead of being damaged Comm t against the Times based on the same advertisement has already been [**734] awarded t nd the corner for the Times or any other newspaper or broadcaster which [*295] might dar mes seeking $ 5,600,000, and five such suits against the Columbia Broadcasting System seek ith racial overtones; it can be used in other fields where public feelings [***70] may In my opinion the Federal Constitution has dealt with this deadly danger to the press i their public duty. Compare Barr v. Matteo, 360 U.S. 564. Stopgap measures like those the charged the jury about "malice," "truth," "good motives," "justifiable ends," or any other side or to reduce the half-million-dollar verdict in any amount. I agree with the Court that the Fourteenth Amendment made the First applicable to the S other [***71] law to impose damages for merely discussing public affairs and criticizin was adopted and ever since. n2 Congress never has sought to challenge this viewpoint by p ernment. As the Court's opinion correctly points out, however, ante, pp. 273-276, that Act mendment. Since the First Amendment is now made applicable to the States by the Fourteent - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 See cases collected in Speiser v. Randall, 357 U.S. 513, 530 (concurring opinion). n2 See, e. g., 1 Tucker, Blackstone's Commentaries (1803), 297-299 (editor's appendix). is writings on judicial and constitutional subjects. [***72] n3 Act of July 14, 1798, 1 Stat. 596. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We would, I think, more faithfully interpret the First Amendment by holding that at the t officials; so do the States, the municipalities, the counties, and even many precincts. enity," Roth [**735] v. United States, 354 U.S. 476, and "fighting words," Chaplinsky v is unquestionably, as the Court today holds, the kind of speech the First Amendment was pr s is to abridge [***73] or shut off discussion of the very kind most needed. This Nati dom where its people can be made to suffer physically or financially for criticizing their their responsibility to their constituents; and this happens whenever the constituent can 5 An unconditional right to say what one pleases about public affairs is what I consider t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 But see Smith v. California, 361 U.S. 147, 155 (concurring opinion); Roth v. United n5 1 Tucker, Blackstone's Commentaries (1803), 297 (editor's appendix); cf. Brant, Sedi n6 Cf. Meiklejohn, Free Speech and Its Relation to Self-Government (1948). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - I regret that the Court has stopped short of this holding indispensable to preserve our MR. JUSTICE GOLDBERG, with whom MR. JUSTICE DOUGLAS joins, concurring in the result. The Court today announces a constitutional standard which prohibits "a public official t is, with knowledge that it was false or with reckless disregard of whether it was false of fact regarding the official conduct of a government officer. The impressive array of h ard to citizen and press in exercising the right of public [***75] criticism. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 I fully agree with the Court that the attack upon the validity of the Sedition Act o t, however, that the Sedition Act proscribed writings which were "false, scandalous and ma States (1849), p. 333; Trial of Thomas Cooper (1800), in id., at 659; Trial of Anthony Ha - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In my view, the First and Fourteenth Amendments to the Constitution afford to the citiz right "to speak one's [**736] mind," cf. Bridges v. California, 314 U.S. 252, 270, [ ng by the jury of the motivation n2 of the citizen or press. The theory [*299] of our shing because those in control of government think that what is said or written is unwise, is official acts will be commented upon and criticized. Such criticism cannot, in my opin - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The requirement of proving actual malice or reckless disregard may, in the mind of t stice Jackson in United States v. Ballard, 322 U.S. 78, 92-93, is relevant here: "As a mat ing proof that one believes his statements is to show that they have been true in his expe - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***77] It has been recognized that "prosecutions for libel on government have [no] place in th it is made up of individuals -- of governors responsible to the governed. In a democrati any statement critical of the governors' official conduct is necessarily "of and concernin s likewise can have no place in our Constitution. We must recognize that we are writing upon a clean slate. n3 As the Court notes, altho the use of libel laws to impose sanctions upon expression critical of the official conduc d Fourteenth Amendments. It may be urged that deliberately and maliciously false statemen edom of speech which all agree is constitutionally protected can be effectively safeguarde trong words, which a jury finds false and maliciously motivated, there can be little doubt o be little doubt that the ability of minority groups to secure publication of their views *79] opinion of the Court conclusively demonstrates the chilling effect of the Alabama l n who injure and oppress the people under their administration [and] provoke them to cry o s St. Tr. 675, 721-722 (1735) (argument of counsel to the jury). To impose liability for eir governors." Cf. Sweeney v. Patterson, 76 U. S. App. D. C. 23, 24, 128 F.2d 457, 458. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 It was not until Gitlow v. New York, 268 U.S. 652, decided in 1925, that it was inti See Whitney v. California, 274 U.S. 357; Fiske v. Kansas, 274 U.S. 380. In 1931 Chief Just ss clause of the Fourteenth Amendment embraces the right of free speech." Thus we deal wit s brought by state officials. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***80] Our national experience teaches that repressions breed hate and "that hate menaces stab "Imperative is the need to preserve inviolate the constitutional rights of free speech, fr and that changes, if desired, may be obtained by peaceful means. Therein lies the secur This is not to say that the Constitution protects defamatory statements directed agains changes may be obtained by peaceful means. Purely private defamation has little to do wi ech or any other freedom protected by the First Amendment. n4 This, of course, cannot be s ity for the people to determine and resolve public issues. Where public matters are invol - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 In most cases, as in the case at bar, there will be little difficulty in distinguish f applying a public-private standard are, however, certainly of a different genre from tho ker takes the risk not only that the jury will inaccurately determine his state of mind bu - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***82] In many jurisdictions, legislators, judges and executive officers are clothed with abso ribune Co., 307 Ill., at 610, 139 N. E., at 91. Judge Learned Hand ably summarized the pol "It does indeed go without saying that an official, who is in fact guilty of using his use; and, if it were possible in practice to confine such complaints to the guilty, it wou en tried, and that to submit all officials, the innocent as well as the guilty, to the bur rge of [***83] their duties. Again and again the public interest calls for action which ed be means of punishing public officers who have been truant to their duties; but that is st be found in a balance between the evils inevitable in either alternative. In this ins dread of retaliation. . . . "The decisions have, indeed, always imposed as a limitation upon the immunity that the ions where the public good is not their aim, and hence that to exercise a power dishonestl hole doctrine. What is meant by saying that the officer must be acting within his power c ted in him. . . ." Gregoire v. Biddle, 177 F.2d 579, 581. [*304] If the government official should be immune from libel actions so that his ard at 571, then the citizen and the press should likewise be immune from libel actions for t mployees do their jobs, from the least to the most important." n5 If liability can attach *85] praise about the government or its officials. The vigorous criticism by press and answering criticisms, can resort to friendly juries to forestall criticism of their offic - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 MR. JUSTICE BLACK concurring in Barr v. Matteo, 360 U.S. 564, 577, observed that: "T of the quality of government service rendered by all elective or appointed public officia om the least to the most important." n6 See notes 2, 4, supra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The conclusion that the Constitution affords the citizen and the press an [***86] abs "Under our system of government, counterargument and education are the weapons available t ter access than most private citizens to media of communication. In any event, despite th e of the probability of excesses and abuses, [certain] liberties are, in the long view, e rrectly observed, "sunlight is the most powerful of all disinfectants." n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 See Freund, The Supreme Court of the United States (1949), p. 61. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***87] For these reasons, I strongly believe that the Constitution accords citizens and press related to official conduct, the judgments for libel cannot constitutionally be sustained