Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Opinion of the Court
announced the judgment of the Court and delivered an opinion, in which Justice Rehnquist and Justice O’Connor joined.
In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the First Amendment restricted the damages that a private individual could obtain from a publisher for a libel that involved a matter of public concern. More specifically, we held that in these circumstances the First Amendment prohibited awards of presumed and punitive damages for false and defamatory statements unless the plaintiff shows “actual malice,” that is, knowledge of falsity or reckless disregard for the truth. The question presented in this case is whether this rule of Gertz applies when the false and defamatory statements do not involve matters of public concern.
HH
Petitioner Dun & Bradstreet, a credit reporting agency, provides subscribers with financial and related information about businesses. All the information is confidential; under the terms of the subscription agreement the subscribers may not reveal it to anyone else. On July 26, 1976, petitioner sent a report to five subscribers indicating that respondent, a construction contractor, had filed a voluntary petition for bankruptcy. This report was false and grossly misrepresented respondent’s assets and liabilities. That same day, while discussing the possibility of future financing with its bank, respondent’s president was told that the bank had received the defamatory report. He immediately called petitioner’s regional office, explained the error, and asked for a correction. In addition, he requested the names of the firms that had received the false report in order to assure them that the company was solvent. Petitioner promised to look into the matter but refused to divulge the names of those who had received the report.
After determining that its report was indeed false, petitioner issued a corrective notice on or about August 3, 1976,
Respondent then brought this defamation action in Vermont state court. It alleged that the false report had injured its reputation and sought both compensatory and punitive damages. The trial established that the error in petitioner’s report had been caused when one of its employees, a 17-year-old high school student paid to review Vermont bankruptcy pleadings, had inadvertently attributed to respondent a bankruptcy petition filed by one of respondent’s former employees. Although petitioner’s representative testified that it was routine practice to check the accuracy of such reports with the businesses themselves, it did not try to verify the information about respondent before reporting it.
After trial, the jury returned a.verdiet in favor of respondent and awarded $50,000 in compensatory or presumed damages and $300,000 in punitive damages. Petitioner moved for a new trial. It argued that in Gertz v. Robert Welch, Inc., supra, at 349, this Court had ruled broadly that “the States may 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,” and it argued that the judge’s instructions in this case permitted the jury to award such damages on a lesser showing. The trial court indicated some doubt as to whether Gertz applied to “non-media cases,” but granted a new trial “[bjecause of . . . dissatisfaction with its charge and . . . conviction that the interests of justice require[d]” it. App. 26.
The Vermont Supreme Court reversed. 143 Vt. 66, 461 A. 2d 414 (1983). Although recognizing that “in certain instances the distinction between media and nonmedia defend
Recognizing disagreement among the lower courts about when the protections of Gertz apply,
II
As an initial matter, respondent contends that we need not determine whether Gertz applies in this case because the instructions, taken as a whole, required the jury to find “actual
We reject this claim because the trial court failed to define any of these terms adequately. It did not, for example, provide the jury with any definition of the term “actual malice.” In fact, the only relevant term it defined was simple “malice.”
*754 “If you find that the Defendant acted in a bad faith towards the Plaintiff in publishing the Erroneous Report, or that Defendant intended to injure the Plaintiff in its business, or that it acted in a willful, wanton or reckless disregard of the rights and interests of the Plaintiff, the Defendant has acted maliciously and the privilege is destroyed. Further, if the Report was made with reckless disregard of the possible consequences, or if it was made with the knowledge that it was false or with reckless disregard of its truth or falsity, it was made with malice.” App. 18-19 (emphasis added).
In New York Times Co. v. Sullivan, supra, the Court for the first time held that the First Amendment limits the reach of state defamation laws. That case concerned a public official’s recovery of damages for the publication of an advertisement criticizing police conduct in a civil rights demonstration. As the Court noted, the advertisement concerned “one of the major public issues of our time.” Id., at 271. Noting that “freedom of expression upon public questions is secured by the First Amendment,” id., at 269 (emphasis added), and that “debate on public issues should be uninhibited, robust, and wide-open,” id., at 270 (emphasis added), the Court held that a public official cannot recover damages for defamatory falsehood unless he proves that the false statement was made with “‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” id., at 280. In later cases, all involving public issues, the Court extended this same constitutional protection to libels of public figures, e. g., Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and in one case suggested in a plurality opinion that this constitutional rule should extend to libels of any individual so long as the defamatory statements involved a “matter of public or general interest,” Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971) (opinion of Brennan, J.).
In Gertz, we held that the fact that expression concerned a public issue did not by itself entitle the libel defendant to the constitutional protections of New York Times. These protections, we found, were not “justified solely by reference to the interest of the press and broadcast media in immunity from liability.” 418 U. S., at 343. Rather, they represented “an accommodation between [First Amendment] con-cernís] and the limited state interest present in the context of libel actions brought by public persons.” Ibid. In libel actions brought by private persons we found the competing interests different. Largely because private persons have not voluntarily exposed themselves to increased risk of injury from defamatory statements and because they generally lack effective opportunities for rebutting such statements, id., at 345, we found that the State possessed a “strong and legitimate . . . interest in compensating private individuals for injury to reputation.” Id., at 348-349. Balancing this stronger state interest against the same First Amendment interest at stake in New York Times, we held that a State could not allow recovery of presumed and punitive damages absent a showing of “actual malice.” Nothing in our opinion,
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We have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. To make this determination, we must employ the approach approved in Gertz and balance the State’s interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression. This state interest is identical to the one weighed in Gertz. There we found that it was “strong and legitimate.” 418 U. S., at 348. A State should not lightly be required to abandon it,
“for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name*758 ‘reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. . . .’ Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (concurring opinion).” Id., at 341.
The First Amendment interest, on the other hand, is less important than the one weighed in Gertz. We have long recognized that not all speech is of equal First Amendment importance.
“The First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957); New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964). ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values,”’ and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U. S. 886, 913 (1982); Carey v. Brown, 447 U. S. 455, 467 (1980).”
In contrast, speech on matters of purely private concern is of less First Amendment concern. Id., at 146-147. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent.
*760 “[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press. The facts of the present case are wholly without the First Amendment concerns with which the Supreme Court of the United States has been struggling.” Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 366, 568 P. 2d 1359, 1363 (1977).
Accord, Rowe v. Metz, 195 Colo. 424, 426, 579 P. 2d 83, 84 (1978); Denny v. Mertz, 106 Wis. 2d 636, 661, 318 N. W. 2d 141, 153, cert. denied, 459 U. S. 883 (1982).
While such speech is not totally unprotected by the First Amendment, see Connick v. Myers, supra, at 147, its protections are less stringent. In Gertz, we found that the state interest in awarding presumed and punitive damages was not “substantial” in view of their effect on speech at the core of First Amendment concern. 418 U. S., at 349. This interest, however, is “substantial” relative to the incidental effect these remedies may have on speech of significantly less constitutional interest. The rationale of the common-law rules has been the experience and judgment of history that “proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact.” W. Prosser, Law of Torts § 112, p. 765 (4th ed. 1971); accord, Rowe v. Metz, supra, at 425-426, 579 P. 2d, at 84; Note, Developments in the Law—Defamation, 69 Harv. L. Rev. 875, 891-892 (1956). As a result, courts for centuries have allowed juries to presume that some damage occurred from many defamatory utter-
V
The only remaining issue is whether petitioner’s credit report involved a matter of public concern. In a related context, we have held that “[w]hether . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context ... as revealed by the whole record.” Connick v. Myers, supra, at 147-148.
In addition, the speech here, like advertising, is hardy and unlikely to be deterred by incidental state regulation. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772. It is solely motivated by the desire for profit, which, we have noted, is a force less likely to be deterred than others. Ibid. Arguably, the reporting here was also more objectively verifiable than speech deserving of greater protection. See ibid. In any case, the market provides a powerful incentive to a credit reporting
I — i >
We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of “actual malice” does hot violate the First Amendment when the defamatory statements do not involve matters of public concern. Accordingly, we affirm the judgment of the Vermont Supreme Court.
It is so ordered.
Compare Denny v. Mertz, 106 Wis. 2d 636, 318 N. W. 2d 141, cert. denied, 459 U. S. 883 (1982) (Gertz inapplicable to private figure suits against nonmedia defendants); Stuempges v. Parke, Davis & Co., 297 N. W. 2d 252 (Minn. 1980) (same); Rowe v. Metz, 195 Colo. 424, 579 P. 2d 83 (1978) (same); and Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 568 P. 2d 1359 (1977) (same), with Antwerp Diamond Exchange, Inc. v. Better Business Bureau, 130 Ariz. 523, 637 P. 2d 733 (1981) (Gertz applicable in such situations); and Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A. 2d 688 (1976) (same).
Respondent also argues that petitioner did not seek the protections outlined in Gertz before the jury instructions were given and that the issue therefore was not preserved for review. Since the Vermont Supreme Court considered the federal constitutional issue properly presented and decided it, there is no bar to our review. See Orr v. Orr, 440 U. S. 268, 274-275 (1979).
The full instruction on malice reads as follows:
The dissent states that “[a]t several points the Court in Gertz makes perfectly clear [that] the restrictions of presumed and punitive damages were to apply in all cases.” Post, at 785, n. 11. Given the context of Gertz, however, the Court could have made “perfectly clear” only that these restrictions applied in cases involving public speech. In fact, the dissent itself concedes that “Gertz . . . focused largely on defining the circumstances under which protection of the central First Amendment value of robust debate of public issues should mandate plaintiffs to show actual malice to obtain a judgment and actual damages ....” Post, at 777 (original emphasis).
The dissent also incorrectly states that Gertz “specifically held,” post, at 779, 793, both “that the award of presumed and punitive damages on less than a showing of actual malice is not a narrowly tailored means to achieve the legitimate state purpose of protecting the reputation of private persons . . .,” post, at 779, and that “unrestrained presumed and punitive damages were ‘unnecessarily’ broad ... in relation to the legitimate state interests,” post, at 793-794. Although the Court made both statements, it did so only within the context of public speech. Neither statement controls here. What was “not . . . narrowly tailored” or was “‘unnecessarily’ broad” with respect to public speech is not necessarily so with respect to the speech now at issue. Properly understood, Gertz is consistent with the result we reach today.
This Court on many occasions has recognized that certain kinds of speech are less central to the interests of the First Amendment than others. Obscene speech and “fighting words” long have been accorded no protection. Roth v. United States, 354 U. S. 476, 483 (1957); Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942); cf. Harisiades v. Shaughnessy, 342 U. S. 580, 591-592 (1952) (advocating violent overthrow of the Government is unprotected speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931) (publication of troopship sailings during wartime may be enjoined). In the area of protected speech, the most prominent example of reduced protection for certain kinds of speech concerns commercial speech. Such speech, we have noted, occupies a “subordinate position in the scale of First Amendment values.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978). It also is more easily verifiable and less likely to be deterred by proper regulation. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772 (1976). Accordingly, it may be regulated in ways that might be impermissible in the realm of noncommercial expression. Ohralik, supra, at 456; Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 562-563 (1980).
Other areas of the law provide further examples. In Ohralik we noted that there are “[njumerous examples ... of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers’ threats of retaliation for the labor activities of employees.” 436 U. S., at 456 (citations omitted). Yet similar regulation of political speech is subject to the most rigorous scrutiny. See Brown v. Hartlage, 456 U. S. 45, 52-53 (1982); New York Times Co. v. Sullivan, 376 U. S. 254, 279, n. 19
As one commentator has remarked with respect to “the case of a commercial supplier of credit information that defames a person applying for
The dissent, purporting to apply the same balancing test that we do today, concludes that even speech on purely private matters is entitled to the protections of Gertz. Post, at 786. Its “balance,” however, rests on a misinterpretation. In particular, the dissent finds language in Gertz that, it believes, shows the State’s interest to be “irrelevant.” See post, at 794. It is then an easy step for the dissent to say that the State’s interest is outweighed by even the reduced First Amendment interest in private speech. Gertz, however, did not say that the state interest was “irrelevant” in absolute terms. Indeed, such a statement is belied by Gertz itself, for it held that presumed and punitive damages were available under some circumstances. 418 U. S., at 349. Rather, what the Gertz language indicates is that the State’s interest is not substantial relative to the First Amendment interest in public speech. This language is thus irrelevant to today’s decision.
The dissent’s “balance,” moreover, would lead to the protection of all libels — no matter how attenuated their constitutional interest. If the dissent were the law, a woman of impeccable character who was branded a “whore” by a jealous neighbor would have no effective recourse unless she could prove “actual malice” by clear and convincing evidence. This is not malice in the ordinary sense, but in the more demanding sense of New York Times. The dissent would, in effect, constitutionalize the entire common law of libel.
The dissent suggests that our holding today leaves all credit reporting subject to reduced First Amendment protection. This is incorrect. The protection to be accorded a particular credit report depends on whether the report’s “content, form, and context” indicate that it concerns a public matter. We also do not hold, as the dissent suggests we do, post, at 787, that the report is subject to reduced constitutional protection because it constitutes economic or commercial speech. We discuss such speech, along with advertising, only to show how many of the same concerns that argue in favor of reduced constitutional protection in those areas apply here as well.
The Court of Appeals for the Fifth Circuit has noted that, while most States provide a qualified privilege against libel suits for commercial credit reporting agencies, in those States that do not there is a thriving credit reporting business and commercial credit transactions are not inhibited. Hood v. Dun & Bradstreet, Inc., 486 F. 2d 25, 32 (1973), cert. denied, 415 U. S. 985 (1974). The court cited an empirical study comparing credit transactions in Boise, Idaho, where there is no privilege, with those in Spokane, Washington, where there is one. 486 F. 2d, at 32, and n. 18.
Concurring Opinion
concurring in the judgment.
In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), contrary to well-established common law prevailing in the states, a divided Court held that a private plaintiff in a defamation action cannot recover for a published falsehood unless he proves that the defendant was at least negligent in publishing the falsehood. The Court further held that there can be no “presumed” damages in such an action and that the private plaintiff cannot receive “punitive” damages unless it is established that the publication was made with “actual malice,” as defined in New York Times Co. v. Sullivan, 376 U. S. 254 (1964).
I dissented in Gertz because I believed that, insofar as the “ordinary private citizen” was concerned, 418 U. S., at 355, the Court’s opinion “abandoned] the traditional thread,” id., at 354-355, that had been the theme of the law in this country
The single question before the Court today is whether Gertz applies to this case. The plurality opinion holds that Gertz does not apply because, unlike the challenged expression in Gertz, the alleged defamatory expression in this case does not relate to a matter of public concern. I agree that Gertz is limited to circumstances in which the alleged defamatory expression concerns a matter of general public importance, and that the expression in question here relates to a matter of essentially private concern. I therefore agree with the plurality opinion to the extent that it holds that Gertz is inapplicable in this case for the two reasons indicated. No more is needed to dispose of the present case.
I continue to believe, however, that Gertz was ill-conceived, and therefore agree with Justice White that Gertz should be overruled. I also agree generally with Justice White’s observations concerning New York Times Co. v. Sullivan. New York Times, however, equates “reckless disregard of the truth” with malice; this should permit a jury instruction that malice may be found if the defendant is shown to have published defamatory material which, in the exercise of reasonable care, would have'' been revealed as untrue. But since the Court has not applied the literal language of New York Times in this way, I agree with Justice White that it should be reexamined. The great rights guaranteed by the First Amendment carry with them certain responsibilities as well.
Consideration of these issues inevitably recalls an aphorism of journalism that “too much checking on the facts has ruined many a good news story.”
Concurring Opinion
concurring in the judgment.
Until New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the law of defamation was almost exclusively the business of state courts and legislatures. Under the then prevailing state libel law, the defamed individual had only to prove a false written publication that subjected him to hatred, contempt, or ridicule. Truth was a defense; but given a defamatory false circulation, general injury to reputation was presumed; special damages, such as pecuniary loss and emotional distress, could be recovered; and punitive damages were available if common-law malice were shown. General damages for injury to reputation were presumed and awarded because the judgment of history was that “in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.” Restatement of Torts § 621, Comment a, p. 314 (1938). The defendant was permitted to show that there was no reputational injury; but at the very least, the prevailing rule was that at least nominal damages were to be awarded for any defamatory publication actionable per se. This rule performed
“a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character since it often permits a defamed , person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom.” Id. §569, Comment 6, p. 166.
Similar rules applied to slanderous statements that were actionable per se.
In 1971, four Justices took the view that the New York Times rules should apply wherever a publication concerned any manner of general or public interest, even though the plaintiff was a private person. Rosenbloom v. Metromedia, Inc., 403 U. S. 29. That view did not command a majority. But in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), the Court again dealt with defamation actions by private individuals, for the first time holding that such plaintiffs could no longer recover by proving a false statement, no matter how damaging it might be to reputation. They must, in addition, prove some “fault,” at least negligence. Id., at 347, 350. Even with that proof, damages were not presumed but had to be proved. Id., at 349. Furthermore, no punitive damages were available without proof of New York Times malice.
I joined the judgment and opinion in New York Times. I also joined later decisions extending the New York Times standard to other situations. But I came to have increasing doubts about the soundness of the Court’s approach and about some of the assumptions underlying it. I could not join the plurality opinion in Rosenbloom, and I dissented in Gertz, asserting that the common-law remedies should be retained for private plaintiffs. I remain convinced that Gertz was erroneously decided. I have also become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation.
In a country like ours, where the people purport to be able to govern themselves through their elected representatives, adequate information about their government is of transcendent importance. That flow of intelligence deserves full First Amendment protection. Criticism and assessment of the performance of public officials and of government in general are not subject to penalties imposed by law. But these First Amendment values are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government. As the Court said in Gertz: “[TJhere is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” 418 U. S., at 340. Yet in New York Times cases, the public official’s complaint will be dismissed unless he alleges and makes out a jury case of a knowing or reckless falsehood. Absent such proof, there will be no
Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual’s right to the protection of his own good name is a basic consideration of our constitutional system, reflecting “‘our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.’” Gertz, supra, at 341, quoting Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring). The upshot is that the public official must suffer the injury, often cannot get a judgment identifying the lie for what it is, and has very little, if any, chance of countering that lie in the public press.
The New York Times rule thus countenances two evils: first, the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. In terms of the First Amendment and reputational interests at stake, these seem grossly perverse results.
Of course, the Court in New York Times could not have been unaware of these realities. Despite our ringing endorsement of “wide-open” and “uninhibited” debate, which taken literally would protect falsehoods of all kinds, we cannot fairly be accused of giving constitutional protection to false information as such, for we went on to find competing and overriding constitutional justification for our decision. The constitutional interest in the flow of information about
Gertz is subject to similar observations. Although rejecting the New York Times malice standard where the plaintiff is neither a public official nor a public figure, there the Court nevertheless deprived the private plaintiff of his common-law remedies, making recovery more difficult in order to provide a margin for error. In doing so, the Court ruled that without proof of at least negligence, a plaintiff damaged by the most outrageous falsehoods would be remediless, and the lie very likely would go uncorrected. And even if fault were proved, actual damage to reputation would have to be shown, a burden traditional libel law considered difficult, if not impossible, to discharge. For this reason Justice Powell would not impose on the plaintiff the burden of proving damages in the case now before us.
Although there was much talk in Gertz about liability without fault and the unfairness of presuming damages, all of this, as was the case in New York Times, was done in the name of the First Amendment, purportedly to shield the press and others writing about public affairs from possibly intimidating
In New York Times, instead of escalating the plaintiff’s burden of proof to an almost impossible level, we could have achieved our stated goal by limiting the recoverable damages to a level that would not unduly threaten the press. Punitive damages might have been scrutinized as Justice Harlan suggested in Rosenbloom, supra, at 77, or perhaps even entirely forbidden. Presumed damages to reputation might have been prohibited, or limited, as in Gertz. Had that course been taken and the common-law standard of liability been retained, the defamed public official, upon proving falsity, could at least have had a judgment to that effect. His reputation would then be vindicated; and to the extent possible, the misinformation circulated would have been countered. He might have also recovered a modest amount, enough perhaps to pay his litigation expenses. At the very least, the public official should not have been required to satisfy the actual malice standard where he sought no damages but only to clear his name. In this way, both First Amendment and reputational interests would have been far better served.
We are not talking in these cases about mere criticism or opinion, but about misstatements of fact that seriously harm the reputation of another, by lowering him in the estimation of the community or to deter third persons from associating or dealing with him. Restatement of Torts §559 (1938). The necessary breathing room for speakers can be ensured by limitations on recoverable damages; it does not also require depriving many public figures of any room to vindicate their reputations sullied by false statements of fact. It could be suggested that even without the threat of large presumed and punitive damages awards, press defendants’ communica
I still believe the common-law rules should have been retained where the plaintiff is not a public official or public figure. As I see it, the Court undervalued the reputational interest at stake in such cases. I have also come to doubt the easy assumption that the common-law rules would muzzle the press. But even accepting the Gertz premise that the press also needed protection in suits by private parties, there was no need to modify the common-law requirements for establishing liability and to increase the burden of proof that must be satisfied to secure a judgment authorizing at least nominal damages and the recovery of additional sums within the limitations that the Court might have set.
It is interesting that Justice Powell declines to follow the Gertz approach in this case. I had thought that the decision in Gertz was intended to reach cases that involve any false statements of fact injurious to reputation, whether the statement is made privately or publicly and whether or not it implicates a matter of public importance. Justice Powell, however, distinguishes Gertz as a case that involved a matter
As I have said, I dissented in Gertz, and I doubt that the decision in that case has made any measurable contribution to First Amendment or reputational values since its announcement. Nor am I sure that it has saved the press a great deal of money. Like the New York Times decision, the burden that plaintiffs must meet invites long and complicated discovery involving detailed investigation of the workings of the press, how a news story is developed, and the state of mind of the reporter and publisher. See Herbert v. Lando, 441 U. S. 153 (1979). That kind of litigation is very expensive. I suspect that the press would be no worse off financially if the common-law rules were to apply and if the judiciary was careful to insist that damages awards be kept within bounds. A legislative solution to the damages problem would also be appropriate. Moreover, since libel plaintiffs are very likely more interested in clearing their names than in damages, I doubt that limiting recoveries would deter or be unfair to them. In any event, I cannot assume that the press, as successful and powerful as it is, will be intimidated into withholding news that by decent journalistic standards it believes to be true.
The question before us is whether Gertz is to be applied in this case. For either of two reasons, I believe that it should not. First, I am unreconciled to the Gertz holding and believe that it should be overruled. Second, as Justice Powell indicates, the defamatory publication in this case does not deal with a matter of public importance. Consequently, I concur in the Court’s judgment.
At the common law, slander, unlike libel, was actionable per se only when it dealt with a narrow range of statements: those imputing a criminal offense, a venereal or loathsome and communicable disease, improper conduct of a lawful business, or unchastity of a woman. Restatement of Torts
If the plaintiff succeeds in proving a jury case of malice, it may be that the jury will be asked to bring in separate verdicts on falsity and malice. In that event, there could be a verdict in favor of the plaintiff on falsity, but against him on malice. There would be no judgment in his favor, but the verdict on falsity would be a public one and would tend to set the record right and clear the plaintiff’s name.
It might be suggested that courts, as organs of the government, cannot be trusted to discern what the truth is. But the logical consequence of that view is that the First Amendment forbids all libel and slander suits, for in each such suit, there will be no recovery unless the court finds the publication at issue to be factually false. Of course, no forum is perfect, but that is not a justification for leaving whole classes of defamed individuals without redress or a realistic opportunity to clear their names. We entrust to juries and the courts the responsibility of decisions affecting the life and liberty of persons. It is perverse indeed to say that these bodies are incompetent to inquire into the truth of a statement of fact in a defamation ease. I can therefore discern nothing in the Constitution which forbids a plaintiff to obtain a judicial decree that a statement is false — a decree he can then use in the community to clear his name and to prevent further damage from a defamation already published.
The Court was unresponsive to my suggestion in dissent, 418 U. S., at 391-392, that the plaintiff should be able to prove and obtain a judgment of falsehood without having to establish any kind of fault.
We explained in Branzburg v. Hayes, 408 U. S. 665 (1972) that “the informative function asserted by representatives of the organized press” to justify greater privileges under the First Amendment was also “performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.” Id., at 705. From its inception, without discussing the issue, we have applied the rule of New York Times to nonmedia defendants. See New York Times, 376 U. S., at 254, n., 286; Henry v. Collins, 380 U. S. 356 (1965); Garrison v. Louisiana, 379 U. S. 64 (1964). And this Court has made plain that the organized press has a monopoly neither on the First Amendment nor on the ability to enlighten. First National Bank of Boston v. Bellotti, 435 U. S. 765, 782 (1978). See also Pell v. Procunier, 417 U. S. 817 (1974) (press has no independent First Amendment right of access to prisons). Cf. Buckley v. Valeo, 424 U. S. 1, 48-49 (1976) (the idea that government can restrict the speech of some elements of society to enhance the relative voice of others is “wholly foreign” to the First Amendment).
Dissenting Opinion
dissenting.
This case involves a difficult question of the proper application of Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), to credit reporting — a type of speech at some remove from that
I
In New York Times Co. v. Sullivan the Court held that the First Amendment shields all who speak in good faith from the threat of unrestrained libel judgments for unintentionally false criticism of a public official. Recognizing that libel law, like all other governmental regulation of the content of speech, “can claim no talismanic immunity from constitutional limitations [and] must be measured by standards that satisfy the First Amendment,” 376 U. S., at 269, the Court drew from salutary common-law developments, id., at 280, and n. 20,
Our First Amendment libel decisions in the last two decades have in large measure been an effort to explore the full ramifications of the New York Times Co. v. Sullivan principles. Building on the extension of actual malice to “public figure” plaintiffs in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), the Court in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), and Gertz v. Robert Welch, Inc., supra, focused largely on defining the circumstances under which protection of the central First Amendment value of robust debate of public issues should mandate plaintiffs to show actual malice to obtain a judgment and actual damages; the Court settled on a rule requiring actual malice as a prerequisite to recovery only in suits brought by public officials or public figures. 418 U. S., at 344-346.
In libel law, no less than any other governmental effort to regulate speech, States must therefore use finer instruments to ensure adequate space for protected expression. Cf. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 565 (1980) (restriction “may extend only so far as the interest it serves”); Lowe v. SEC, ante, at 234 (White, J., concurring in judgment) (“[T]he First Amendment permits restraints on speech only when they are narrowly tailored to advance a legitimate governmental interest”). The ready availability and unconstrained application of presumed and punitive damages in libel actions is too blunt a regulatory instrument to satisfy this First Amendment principle, even when the alleged libel does not implicate directly the type of speech at issue in New York Times Co. v.
“At a minimum, even in the purely private libel area, I think the First Amendment should be construed to limit the imposition of punitive damages to those situations where actual malice is proved. This is the typical standard employed in assessing anyone’s liability for punitive damages where the underlying aim of the law is to compensate for harm actually caused,. . . and no conceivable state interest could justify imposing a harsher standard on the exercise of those freedoms that are given explicit protection by the First Amendment.” 403 U. S., at 73 (dissenting opinion) (emphasis added).
See also id., at 65; New York Times Co. v. Sullivan, 376 U. S., at 269.
Justice Harlan’s perception formed the cornerstone of the Court’s analysis in Gertz. Requiring “that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved,” the Court found it “necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.” 418 U. S., at 349. The Court explained that state rules authorizing presumed and punitive damages conferred on juries “largely uncontrolled discretion” to assess damages “in wholly unpredictable amounts bearing no necessary relation to the actual harm caused.” Id., at 349-350. Punitive damages in particular were found to be “wholly irrelevant to the state interest” because “[t]hey are not compensation for injury.” Id., at 350 (emphasis added). For these reasons, the Court in Gertz specifically held that the award of presumed and punitive damages on less than a showing of actual malice is not a narrowly tailored means to achieve the legitimate state purpose of protecting the reputation of private persons: the common-law approach, said the Court, “unnecessarily compounds the
Thus, when an alleged libel involves criticism of a public official or a public figure, the need to nurture robust debate of public issues and the requirement that all state regulation of speech be narrowly tailored coalesce to require actual malice as a prerequisite to any recovery. When the alleged libel involves speech that falls outside these especially important categories, we have held that the Constitution permits States significant leeway to compensate for actual damage to reputation.
HH I — I
The question presented here is narrow. Neither the parties nor the courts below have suggested that respondent Greenmoss Builders should be required to show actual malice to obtain a judgment and actual compensatory damages. Nor do the parties question the requirement of Gertz that respondent must show fault to obtain a judgment and actual damages. The only question presented is whether a jury award of presumed and punitive damages based on less than a showing of actual malice is constitutionally permissible. Gertz provides a forthright negative answer. To preserve the jury verdict in this case, therefore, the opinions of Justice Powell and Justice White have cut away the protective mantle of Gertz.
A
Relying on the analysis of the Vermont Supreme Court, respondent urged that this pruning be accomplished by restricting the applicability of Gertz to cases in which the defendant is a “media” entity. Such a distinction is irreconcilable with the fundamental First Amendment principle that “[t]he inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” First National Bank of Boston v. Bellotti, 435
The free speech guarantee gives each citizen an equal right to self-expression and to participation in self-government. See, e. g., Carey v. Brown, 447 U. S. 455, 459-463 (1980); Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Cohen v. California, 403 U. S. 15, 24 (1971); Whitney v. California, 274 U. S. 357, 375-377 (1927) (Brandeis, J., concurring). This guarantee also protects the rights of listeners to “the widest possible dissemination of information from diverse and antagonistic sources.” Associated Press v. United States, 326 U. S. 1, 20 (1945).
B
Eschewing the media/nonmedia distinction, the opinions of both Justice White and Justice Powell focus primarily on the content of the credit report as a reason for restricting the applicability of Gertz. Arguing that at most Gertz should protect speech that “deals with a matter of public or general importance,” ante, at 773, Justice White, without analysis or explanation, decides that the credit report at issue here falls outside this protected category. The plurality opinion of Justice Powell offers virtually the same conclusion with at least a garnish of substantive analysis.
Purporting to “employ the approach approved in Gertz,” ante, at 757, Justice Powell balances the state interest in protecting private reputation against the First Amendment interest in protecting expression on matters not of public concern. The state interest is found to be identical to that at stake in Gertz. The First Amendment interest is, however, found to be significantly weaker because speech on public issues, such as that involved in Gertz, receives greater constitutional protection than speech that is not a matter of public concern. See ante, at 759-760, citing Connick v. Myers,
In professing allegiance to Gertz, the plurality opinion protests too much. As Justice White correctly observes, Justice Powell departs completely from the analytic framework and result of that case: “Gertz was intended to reach cases that involve any false statements . . . whether or not [they] implicate] a matter of public importance.” Ante, at 772 (concurring in judgment).
(1)
The five Members of the Court voting to affirm the damages award in this case have provided almost no guidance as to what constitutes a protected “matter of public concern.” Justice White offers nothing at all, but his opinion does indicate that the distinction turns on solely the subject matter of the expression and not on the extent or conditions of dissemination of that expression. Ante, at 773. Justice Powell adumbrates a rationale that would appear to focus primarily on subject matter.
In evaluating the subject matter of expression, this Court has consistently rejected the argument that speech is entitled to diminished First Amendment protection simply because it concerns economic matters or is in the economic interest of the speaker or the audience. See, e. g., Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501-502 (1952); American Federation of Labor v. Swing, 312 U. S. 321, 325-326 (1941); Thornhill v. Alabama, 310 U. S. 88, 101-103 (1940); see also Abood v. Detroit Board of Education, 431 U. S., at 231-232, and n. 28. “[O]ur cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters — to take a nonexhaustive list of labels — is not entitled to full First Amendment protection.” Id., at 231. The breadth of this protection evinces recognition that freedom of expression is not only essential to check tyranny and foster self-government but also intrinsic to individual liberty and dignity and instrumental in society’s search for truth. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S., at 503-504; Whitney v. California, 274 U. S., at 375 (Brandeis, J., concurring).
Speech about commercial or economic matters, even if not directly implicating “the central meaning of the First Amendment,” 376 U. S., at 273, is an important part of our public discourse. The Court made clear in the context of discussing labor relations speech in Thornhill v. Alabama, supra:
“It is recognized now that satisfactory hours and wages and working conditions in industry and a bargaining position which makes these possible have an importance which is not less than the interests of those in the business or industry directly concerned. The health of the*788 present generation and of those as yet unborn may depend on these matters, and the practices in a single factory may have economic repercussions upon a whole region and affect widespread systems of marketing. The merest glance at state and federal legislation on the subject demonstrates the force of the argument that labor relations are not matters of mere local or private concern. Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.” 310 U. S., at 102-103.
As Thornhill suggests, the choices we make when we step into the voting booth may well be the products of what we have learned from the myriad of daily economic and social phenomenon that surround us. See id., at 102 (“Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period”).
Given that the subject matter of credit reporting directly implicates matters of public concern, the balancing analysis the Court today employs should properly lead to the conclusion that the type of expression here at issue should receive First Amendment protection from the chilling potential of unrestrained presumed and punitive damages in defamation actions.
Even if the subject matter of credit reporting were properly considered — in the terms of Justice White and Justice Powell — as purely a matter of private discourse, this speech would fall well within the range of valuable expression for which the First Amendment demands protection. Much expression that does not directly involve public issues receives significant protection. Our cases do permit some diminution in the degree of protection afforded one category of speech about economic or commercial matters. “Commercial speech” — defined as advertisements that “[do] no more than propose a commercial transaction,” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 385 (1973)—may be more closely regulated than other types of speech. Even commercial speech, however, receives substantial First Amendment protection. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., supra, at 765 (“So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private-economic decisions. ... To this end, the free flow of commercial information is indispensable”). Credit reporting is not “commercial speech” as this Court has defined the term. Even if credit reporting were so considered, it would still be entitled to the substantial protections the First Amendment affords that category. See Zauderer, 471 U. S., at 637; id., at 657-658 (Brennan, J., concurring in part and dissenting in part). Under either view, the expression at issue in this case should receive protection from the chilling potential of unrestrained presumed and punitive damages awards in defamation actions.
“The language of the First Amendment does not except speech directed at private economic decisionmaking. Certainly such speech could not be regarded as less important than political expression. When immersed in a free flow of commercial information, private sector deci-sionmaking is at least as effective an institution as are our various governments in furthering the social interest in obtaining the best general allocation of resources. . . .
“The financial data circulated by Dun & Bradstreet, Inc., are part of the fabric of national commercial communication.” Dun & Bradstreet, Inc. v. Grove, 404 U. S. 898, 905-906 (1971) (Douglas, J., dissenting from denial of certiorari).
Justice Douglas further noted that “[presumably the credit reports published by the petitioner facilitate through the price system the improvement of human welfare at least as much as did the underlying disagreement in our most recent libel opinion, Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), arising out of a squabble over whether a vendor had sold obscene magazines.” Id., at 905, n. 9.
The credit reports of Dun & Bradstreet bear few of the earmarks of commercial speech that might be entitled to somewhat less rigorous protection. In every case in which we have permitted more extensive state regulation on the basis of a commercial speech rationale the speech being regu
It is worth noting in this regard that the common law of most States, although apparently not of Vermont, 143 Vt. 66, 76, 461 A. 2d 414, 419 (1983), recognizes a qualified privilege for reports like that at issue here. See Maurer, Common Law Defamation and the Fair Credit Reporting Act, 72 Geo. L. J. 95, 99-105 (1983). The privilege typically precludes recovery for false and defamatory credit information without a showing of bad faith or malice, a standard of proof which is often defined according to the New York Times formulation. See, e. g., Datacon, Inc. v. Dun & Bradstreet, Inc., 465 F. Supp. 706, 708 (ND Tex. 1979). The common law thus recognizes that credit reporting is quite susceptible to libel’s chill; this accumulated learning is worthy of respect.
The Court in Gertz specifically held that unrestrained presumed and punitive damages were “unnecessarily” broad,
(3)
Even if not at “the essence of self-government,” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964), the expression at issue in this case is important to both our public discourse and our private welfare. That its motivation might be the economic interest of the speaker or listeners does not diminish its First Amendment value. See Consolidated Edison Co.
Of course, the commercial context of Dun & Bradstreet’s reports is relevant to the constitutional analysis insofar as it implicates the strong state interest “in protecting consumers and regulating commercial transactions,” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 460 (1978). Cf. Bolger v. Young Drug Products Corp., 463 U. S. 60, 81 (1983) (Stevens, J., concurring in judgment). The special harms caused by inaccurate credit reports, the lack of public sophistication about or access to such reports, and the fact that such reports by and large contain statements that are fairly readily susceptible of verification, all may justify appropriate
Justice White also ventures some modest proposals for restructuring the First Amendment protections currently afforded defendants in defamation actions. Justice White agrees with New York Times Co. v. Sullivan, however, that the breathing space needed to ensure the robust debate of public issues essential to our democratic society is impermissibly threatened by unrestrained damages awards for defamatory remarks. Ante, at 770-772 (opinion concurring in judgment).
The principles were expressed as early as 1788 in an opinion of the Pennsylvania Supreme Court:
“What then is the meaning of the bill of rights, and Constitution of Pennsylvania, when they declare, ‘That the freedom of the press shall not be restrained,’ and ‘that the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any part of the government?’. . . [T]hey give to every citizen a right of investigating the conduct of those who are entrusted with the public business .... The true liberty of the press is amply secured by permitting every man to publish his opinions; but it is due to the peace and dignity of society to enquire into the motives of such publications, and to' distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame. To the latter description, it is impossible that any good government should afford protection and impunity.” Respublica v. Oswald, 1 Dall. 319, 325 (footnotes omitted).
A plurality in Rosenbloom would have applied the actual malice standard of liability when the alleged libel concerned matters of “public or general interest,” irrespective of the status of the plaintiff. 403 U. S., at 43 (opinion of Brennan, J.). In Gertz the Court rejected the Rosenbloom plurality’s “public or general interest” approach. That approach was thought unacceptably to impair the reputational interests of private individuals, who, unlike public officials or public figures, neither assume the risk of rough treatment by entering the public arena nor have ready access to the media to rebut false charges. 418 U. S., at 344-345. It was also thought to “occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest.’” Id., at 346 (citation omitted).
Since the decision in Gertz, we have applied its reasoning with respect to damages in excess of compensation for actual harm in other areas of the law. See, e. g., Electrical Workers v. Foust, 442 U. S. 42, 48-52 (1979); Newport v. Fact Concerts, Inc., 453 U. S. 247, 270-271 (1981). These cases, like Gertz, recognize that “the alleged deterrence achieved by punitive damages awards is likely outweighed by the costs — such as the encouragement of unnecessary litigation and the chilling of desirable conduct—flowing from the rule, at least when the standards on which the awards are based are ill-defined.” Smith v. Wade, 461 U. S. 30, 59 (1983) (Eehnquist, J., dissenting). See id., at 46-47 (Court opinion) (noting prevailing view that punitive damages may only be awarded for ‘“conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others,’” quoting Restatement (Second) of Torts § 908(2) (1979) (emphasis deleted)); 461 U. S., at 93-94 (O’Connor, J., dissenting); Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 244-245 (1984); id., at 260-261 (Blackmun, J., dissenting); id., at 276 (Powell, J., dissenting).
Such speech might at times involve issues of public or general interest within the meaning of Rosenhloom and thus implicate important First Amendment interests. To justify this cost, the Court in Gertz held that the State had an enhanced interest in protecting private reputation and cited the independent First Amendment difficulties inherent in case-by-case judicial determination of whether speech concerns a mattér of public interest. 418 U. S., at 344-346. See n. 3, supra. The decision in Gertz is also susceptible of an alternative justification. Speech allegedly defaming a private person will generally be far less likely to implicate matters of public importance than will speech allegedly defaming public officials or public figures. In light of the problems inherent in case-by-case judicial
An attempt to characterize petitioner Dun & Bradstreet illustrates the point. Like an account of judicial proceedings in a newspaper, magazine, or news broadcast, a statement in petitioner’s reports that a particular company has filed for bankruptcy is a report of a timely news event conveyed to members of the public by a business organized to collect and disseminate such information. Thus it is not obvious why petitioner should find less protection in the First Amendment than do established print or electronic media. The Vermont Supreme Court nonetheless characterized petitioner as a nonmedia defendant entitled to less protection because it is “in the business of selling financial information to a limited number of subscribers who have paid substantial fees for [its] services.” 143 Vt. 66, 73, 461 A. 2d 414, 417 (1983). The court added that “[t]here is a clear distinction between a publication which disseminates news for public consumption and one which provides specialized information to a selective, finite audience.” Ibid.
No clear line consistent with First Amendment principles can be drawn on the basis of these criteria. That petitioner’s information is “specialized” or that its subscribers pay “substantial fees” hardly distinguishes these reports from articles in many publications that would surely fall on the “media” side of the line the Vermont Supreme Court seeks to draw. New published statements are of universal interest, and few publications are distributed without charge. Much fare of any metropolitan daily is specialized information for which a selective, finite audience pays a fee. Nor is there any reason to treat petitioner differently than a more widely circulated publication because it has “a limited number of subscribers.” Indeed, it would be paradoxical to increase protection to statements injurious to reputation as the size of their audience, and hence their potential to injure, grows. Cf. Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 781 (1984).
Owing to transformations in the technological and economic structure of the communications industry, there has been an increasing convergence of what might be labeled “media” and “nonmedia.” Pool, The New Technologies: Promise of Abundant Channels at Lower Cost, in What’s News: The Media in American Society 81, 87 (1981). See also I. Pool, Technologies of Freedom (1983); U. S. Federal Trade Commission, Media Policy Session: Technology and Legal Change (1979); Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, Telecommunications in Transition: The Status
See, e. g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983); Columbia Broadcasting System, Inc. v. FCC, 453 U. S. 367, 395 (1981); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Branzburg v. Hayes, 408 U. S. 665, 707 (1972); New York Times Co. v. United States, 403 U. S. 713 (1971); Mills v. Alabama, 384 U. S. 214, 218-219 (1966); Grosjean v. American Press Co., Inc., 297 U. S. 233, 250 (1936). See also Herbert v. Lando, 441 U. S. 153, 180-199 (1979) (Brennan, J., dissenting in part); Saxbe v. Washington Post Co., 417 U. S. 843, 850 (1974) (Powell, J., dissenting); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 393 (1973) (Burger, C. J., dissenting); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967); Stewart, “Or of the Press,” 26 Hastings L. J. 631 (1975).
In light of the “increasingly prominent role of mass media in our society, and the awesome power it has placed in the hands of a select few,” Gertz, 418 U. S., at 402 (White, J., dissenting), protection for the speech
Justice Powell’s opinion does not expressly reject the media/ nonmedia distinction, but does expressly decline to apply that distinction to resolve this case.
One searches Gertz in vain for a single word to support the proposition that limits on presumed and punitive damages obtained only when speech involved matters of public concern. Gertz could not have been grounded in such a premise. Distrust of placing in the courts the power to decide what speech was of public concern was precisely the rationale Gertz offered for rejecting the Rosenbloom plurality approach. 418 U. S., at 346. It would have been incongruous for the Court to go on to circumscribe the protection against presumed and punitive damages by reference to a judicial judgment as to whether the speech at issue involved matters of public concern. At several points the Court in Gertz makes perfectly clear the restrictions of presumed and punitive damages were to apply in all cases. Id., at 346, 349-350.
Indeed, Justice Powell’s opinion today is fairly read as embracing the approach of the Rosenbloom plurality to deciding when the Constitution should limit state defamation law. The limits imposed, however, are less stringent than those suggest by the Rosenbloom plurality. Under the approach of today’s plurality, speech about matters of public or general interest receives only the Gertz protections against unrestrained presumed and punitive damages, not the full New York Times Co. v. Sullivan protections against any recovery absent a showing of actual malice.
Justice Powell also appears to rely in part on the fact that communication was limited and confidential. Ante, at 762. Given that his analysis also relies on the subject matter of the credit report, ante, at 761-762, it is difficult to decipher exactly what role the nature and extent of dissemination plays in Justice Powell’s analysis. But because the subject matter of the expression at issue is properly understood as a matter of public concern, see infra, at 791-793, it may well be that this element of confidentiality is crucial to the outcome as far as Justice Powell’s opinion is concerned. In other words, it may be that Justice Powell thinks this particular expression could not contribute to public welfare because the public generally does not receive it. This factor does not suffice to save the analysis. See n. 18, infra.
Similarly, we have rejected the arguments for denying or restricting First Amendment protection of advertising on the ground that advertising is not a matter of public concern. Recognizing that even pure advertising may well be affected with a public interest, we have stated that “the free flow of commercial information is indispensable ... to the formation of intelligent opinions as to how [our economic] system ought to be regulated or altered.” Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 765 (1976). See also Bigelow v. Virginia, 421 U. S. 809, 822 (1975) (“Viewed in its entirety the [abortion] advertisement conveyed information of potential interest and value to a diverse audience — not only to readers possibly in need of the services offered”). The potential political aspect of attempts to influence consumer preferences has also been recognized. See Metromedia, Inc. v. San Diego, 453 U. S. 490, 538-539 (1981) (Brennan, J., concurring in judgment) (“May the city decide that a United Automobile Workers billboard with the message ‘Be a patriot — do not buy Japanese-manufactured cars’ is ‘commercial’ and therefore forbid it?”). The greater state latitude for regulating commercial
Justice Powell purports to draw from Connick v. Myers, 461 U. S. 138 (1983), a test for distinguishing matters of public concern from matters of private concern. This reliance perpetuates a definition of “public con
See, e. g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Bolger v. Young Products Corp., 463 U. S. 60 (1983) (contraceptive advertising); In re R. M. J., 455 U. S. 191 (1982) (lawyer advertising); Metromedia, Inc. v. San Diego, 453 U. S. 490 (1981) (commercial billboard advertising); Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557 (1980) (advertising of electricity); Friedman v. Rogers, 440 U. S. 1 (1979) (optometrist advertising); Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978) (lawyer’s solicitation of business); Bates v. State Bar of Arizona, 433 U. S. 350 (1977) (lawyer advertising).
Indeed Justice Powell has chosen a particularly inapt set of facts as a basis for urging a return to the common law. Though the individual’s interest in reputation is certainly at the core of notions of human dignity, ante, at 757-758, citing Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring); see Paul v. Davis, 424 U. S. 693, 714 (1976) (Brennan, J., dissenting), the reputational interest at stake here is that of a corporation. Similarly, that this speech is solely commercial in nature undercuts the argument that presumed damages should be unrestrained in actions like this one because actual harm 'will be difficult to prove. If the credit report is viewed as commercial expression, proving that actual damages occurred is relatively easy. For instance, an alleged libel concerning a bank’s customer may cause the bank to lower the credit limit or raise the interest rate charged that customer. The commercial context does not increase the need for presumed damages, but if anything reduces the need to presume harm. At worst the commercial damages caused by such action should be no more difficult to ascertain than many other traditional elements of tort damages. See, e. g., Russell v. City of Wildwood, 428 F. 2d 1176, 1181 (CA3 1970) (future earnings); Seffert v. Los Angeles Transit Lines, 56 Cal. 2d 498, 509, 364 P. 2d 337, 344 (1961) (Traynor, J., dissenting) (pain and suffering).
Justice Powell’s analysis fails to apply the requirement that regulation be narrowly tailored. At one point the opinion reads: “This particular interest [in credit reporting] warrants no special protection when . . . the speech is wholly false and clearly damaging to the victim’s business reputation.” Ante, at 762. The point, of course, is not that false speech intrinsically deserves protection, see Gertz, 418 U. S., at 340, but that the burdening of unintentional false speech potentially chills truthful speech. Thus, the state interest in compensating injury resulting from false speech must be vindicated by means that are narrowly tailored to avoid this deleterious result.
Justice Powell also relies in part on the fact that the expression had a limited circulation and was expressly kept confidential by those who received it. Because the subject matter of the expression at issue in this ease would clearly receive the comprehensive protections of Gertz were the speech publicly disseminated, this factor of confidential circulation to a limited number of subscribers is perhaps properly understood as the linchpin of Justice Powell’s analysis. See ante, at 762 (because of confidentiality “it cannot be said that the report involves any ‘strong interest in the free flow of commercial information’”) (plurality opinion) (citation omitted). See also n. 12, supra.
This argument does not save the analysis. The assertion that the limited and confidential circulation might make the expression less a matter of public concern is dubious on its own terms and flatly inconsistent with our decision in Givhan v. Western Line Consolidated School Dist., 439 U. S. 410 (1979). Perhaps more importantly, Dun & Bradstreet doubtless provides thousands of credit reports to thousands of subscribers who receive the information pursuant to the same strictures imposed on the recipients in this ease. As a systemic matter, therefore, today’s decision diminishes the free flow of information because Dun & Bradstreet will generally be made more reticent in providing information to all its subscribers.
See Maurer, Common Law Defamation and the Fair Credit Reporting Act, 72 Geo. L. J. 95, 126 (1983):
“Under Gertz, plaintiffs may be compensated for actual damages upon establishing the fault of the defendant; to obtain punitive damages, a plaintiff must demonstrate malice. Sections 1681o and 1681n [of the Fair Credit Reporting Act] are consistent with these constitutional principles. Section 1681o provides for recovery of actual damages upon a showing of negligence, which presumably satisfies the Gertz requirement of fault. Section 1681n authorizes punitive damages for willful violation of the Act. Whether section 1681n is equivalent to Gertz’s malice standard depends on whether a court would consider it to be possible to fail willfully to follow reasonable procedures and yet not manifest reckless disregard for the truth. Such a fine distinction appears unworkable as a categorical test, so that section 1681n would likely be regarded as harmonious with the principles of Gertz. Thus, the Act appears to provide the degree of protection for commercial speech currently required under first amendment doctrine” (footnotes omitted).
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