Curtis Publishing Company v. Butts/Concurrence-dissent Brennan

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

I join Parts I and II of the opinion of THE CHIEF JUSTICE and the disposition in No. 150, Associated Press v. Walker.

In No. 37, Curtis Publishing Co. v. Butts, insofar as THE CHIEF JUSTICE'S opinion demonstrates that the evidence unmistakably would support a judgment for Butts under the New York Times standard, I agree. I would, however, remand for a new trial since the charge to the jury did not comport with that standard. The charge on compensatory damages directed that the jury find liability on a finding of mere false hood. And the trial court stated that punitive damagesmi ght be awarded on a finding of 'actual malice' which it defined to encompass 'the notion of ill will, spite, hatred and an intent to injure one,' and also to denote 'a wanton or reckless indifference or culpable negligence with regard to the rights of others.' The court detailed some factors the jury could consider in applying this standard. It said, for example, that '(a) publication may be so extravagant in its denunciation and so vituperative in its character as to justify an inference of malice,' and that 'proof that the plaintiff did demand a retraction but that the defendant failed to retract the article may be considered by you on the question of punitive damages.' But '(d)ebate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.' Garrison v. State of Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 215. The 'good motives' of the publisher can be no more relevant in the context of 'public men' than in the context of criticism of 'public officials.' See Garrison, supra. The court added that the Post could show in mitigation of punitive damages that 'it in good faith relied upon certain matters which had come to its attention.' This makes crystal clear that the standard announced authorized the jury to award punitive damages even though it found that the Post had in good faith relied on matters which had come to its attention. The charge undoubtedly fails to comport with New York Times.

That the evidence might support a verdict under New York Times cannot justify our taking from the jury the function of determining, under proper instructions, whether the New York Times standard has been met. The extent of this Court's role in reviewing the facts, in a case such as this, is to ascertain whether there is evidence by which a jury could reasonably find liability under the constitutionally required instructions. See New York Times Co. v. Sullivan, 376 U.S. 254, 284-292, 84 S.Ct. 710, 728-732; Time, Inc. v. Hill, 385 U.S. 374, 391-394, 87 S.Ct. 534, 544-545. When, as in this case, such evidence appears, the proper disposition in this federal case is to reverse and remand with direction for a new trial. See Time, Inc. v. Hill, supra.