Curtis Publishing Company v. Butts/Concurrence-dissent Black

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring in the result in No. 150, and dissenting in No. 37.

I concur in reversal of the judgment in No. 150, Associated Press v. Walker, based on the grounds and reasons stated in Parts I and II of THE CHIEF JUSTICE's opinion. I do this, however, as in Time, Inc. v. Hill, 385 U.S. 374, 398, 'in order for the Court to be able at this time to agree on (a disposition of) this important case based on the prevailing constitutional doctrine expressed in New York Times Co. v. Sullivan, 376 U.S. 254. (THE CHIEF JUSTICE's) * *  * opinion (would decide) the case in accordance with this doctrine, to which the majority adhere. In agreeing to * *  * (that) opinion, I do not recede from any of the views I have previously expressed about the much wider press and speech freedoms I think the First and Fourteenth Amendments were designed to grant to the people of the Nation. See, e.g., New York Tims Co. v. Sullivan, 376 U.S. at 293 (concurring opinion); Rosenblatt v. Baer, 383 U.S. 75, 94 (concurring and dissenting opinion).'

I would reverse the judgment in No. 37 for the reasons given in my concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733 and my concurring and dissenting opinion in Rosenblatt v. Baer, 383 U.S. 75, 94, 86 S.Ct. 669, 680, but wish to add a few words.

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

It strikes me that the Court is getting itself in the same quagmire in the field of libel in which it is now helplessly struggling in the field of obscenity. No one, including this Court, can know what is and what is not constitutionally obscene or libelous under this Court's rulings. Today the Court will not give the First Amendment its natural and obvious meaning by holding that a law which seriously menaces the very life of press freedom violates the First Amendment. In fact, the Court is suggesting various experimental expedients in libel cases, all of which boil down to a determination of how offensive to this Court a particular libel judgment may be, either because of its immense size or because the Court does not like the way an alleged libelee was treated. Again I suggest (see Time, Inc. v. Hill, 385 U.S. 374, 399, 87 S.Ct. 534, 548) that we are rapidly but surely getting ourselves in the dilemma we found ourselves in when we were compelled to overrule the ill-starred case of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, in order that the state courts of the country might be able to determine with some degree of certainty when an indigent person was entitled to the benefit of a lawyer and avoid the spawning of hundreds of habeas corpus cases that finally raised questions that a lawyer could and would have raised at the trial.

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