Greenbelt Cooperative Publishing Association v. Bresler/Concurrence White

Mr. Justice WHITE, concurring.

I concur in the judgment of reversal and join the opinion of the Court insofar as it rests reversal on the erroneous definition of malice contained in the instructions given to the jury. I do not, however, join the remainder of the Court's opinion.

Respondent Bresler charged that he had been libeled by at least four statements published in petitioners' newspaper: (1) a statement that Bresler's conduct amounted to 'a slight case of blackmail,' accompanied by the use of the word 'blackmail' as a column subheading; (2) a charge that Bresler had engaged in an 'unethical trade'; (3) an allegation that Bresler had been guilty of 'skulduggery,' a word used by the newspaper to characterize statements made by others about Bresler; and (4) a statement that Bresler had had legal proceedings 'started against him for failure to make construction corrections in accordance with county standards.' Petitioners contended that the use of the word blackmail had not been intended in the criminal sense and was not libelous and that in any event the newspaper had not made its publications with malice, that is, with knowledge that any of the statements were false or with reckless disregard of the falsity of any of them.

In instructing the jury the trial court defined libel as:

'the publication of words, pictures or symbols which imputes     to a person a crime or a disgraceful or dishonest or immoral      conduct or is otherwise injurious to the private character or      credit of the person in the minds of a considerable and      respectable class in the community *  *  *.

'(T)he burden is upon the plaintiff to establish by a     preponderance of the evidence that the publication imputed to      him a crime, or disgraceful, dishonest or immoral conduct or      was otherwise injurious to his private character or credit *      *  * .' App. E. 189.

With respect to the dispute over the sense with which the charge of blackmail had been used the court told the jury:

'(I)f you are unable to conclude from the preponderance of     the evidence that the publication bears a meaning ascribed to      it by the plaintiff, or if you find that the evidence is      equally balanced on that issue, then your verdict must be for      the defendant.

'In considering the publication complained of, you must     consider the publication as a whole-the Court would say in      this case we are talking about serious, (sic) number of      publications-and determine the meaning of the publication and      how it would be understood by ordinary readers from the      entire context thereof with the other facts and circumstances      shown by the evidence.

'Where a publication is susceptible of two meanings one of     those which would be libelous and the other not, it is up to you say which of the two meanings      would be attributable to it, by those to whom it is addressed      or by whom it may be read. In reaching your decision you can     consider all the circumstances surrounding the publication,      which includes all of the evidence which has been admitted.'      Id., at E. 189-190.

The court also defined the crime of blackmail and told the jury that in this sense the defendant newspaper did not claim that the allegations were true.

Petitioners took exception to none of the foregoing instructions although in their motion for judgment n.o.v. or for a new trial, error was claimed in not instructing the jury that the failure to plead truth meant only that the defendants did not adopt the meaning of the words alleged by the plaintiff. See App. E. 10-11.

The jury returned a verdict for plaintiff, and judgment was entered on the verdict for both compensatory and punitive damages.

The Court of Appeals of Maryland affirmed. The court held that aside from federal constitutional protections urged by petitioners, the jury's verdict and subsequent judgment thereon were supported by the evidence. With respect to the blackmail charge the court said:

'In the instant case the word 'blackmail' was used as a     sub-heading without qualification. The charge of blackmail     was stated in the News Review issue of October 14, 1965, and      was again repeated in the next week in the issue of October      21. The appellants argue that the word 'blackmail' was used     in a noncriminal sense, but the intended meaning was for the      jury to determine. American Stores (Co.) v. Byrd, supra (229     Md. 5, 181 A.2d 333). The jury found against the appellants.

'The charging of Mr. Bresler with having committed  blackmail could be found by the jury (as it was) to   charge him with the commission of a crime.' 253 Md. 324,   351-352, 252 A.2d 755, 770 (1969).

The court also dealt with the other publications:

'In addition to the publications that Mr. Bresler had     committed blackmail, there were publications that he had      engaged in 'An unethical trade', had been guilty of      'skulduggery', had had legal proceedings 'started against him      for failure to make construction corrections in accordance      with county standards.' These allegations were injurious to      Mr. Bresler in his business as a contractor and were libelous      per se.' Id., at 354, 252 A.2d, at 772.

As for the issue of malice, the Court of Appeals noted that the newspaper knew the blackmail charge was false in the criminal sense. With reference to the charge of 'skulduggery' the court pointed out that the newspaper had not quoted another source in using that word; rather, it was the publishers' own characterization of the events.

'There is little doubt that the word 'skulduggery' was     intended to indicate dishonest conduct on the part of Bresler      and to hold him up to ridicule and contempt. * *  * The jury      could properly conclude that the reports of the hearing were      not accurately reported and were, also, published with a      knowledge of their falsity or with serious doubt of their      truthfulness.' Id., at 360, 252 A.2d, at 775.

The court also held that the allegations that homeowners had started legal proceedings against Bresler in regard to construction defects in their homes built by him had been made with reckless disregard for the truth.

In reversing the Maryland Court of Appeals, the Court does not deny that the Constitution would permit recovery for charging the crime of blackmail, or even for falsely accusing one of 'blackmail' in a noncriminal but derogatory sense 'injurious to the private character or credit of the person.' The Court does not deny that the jury was told it had the authority to decide in what sense a word was used or understood, nor does the Court question the conclusion of the Court of Appeals that the jury had found that the word had been used and understood in the criminal sense. What the Court does hold on the cold record is that the trial judge, the jury, and the Maryland Court of Appeals were quite wrong in concluding that 'ordinary readers' could have understood that a crime had been charged. If this conclusion rests on the proposition that there was no evidence to support a judgment that the charge of blackmail would be understood by the average reader to import criminal conduct, I cannot agree. The very fact that the word is conceded to have a double meaning in normal usage is itself some evidence; and without challenging the reading of the jury's verdict by the Maryland Court of Appeals, I cannot join the majority claim of superior insight with respect to how the word 'blackmail' would be understood by the ordinary reader in Greenbelt, Maryland.

Although the Court does not so hold, arguably the newspaper should not be liable if it had no intention of charging a crime and had a good-faith, nonreckless belief that it was not doing so. Should New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning? I think not. The New York Times case was an effort to effectuate the policies of the First Amendment by recognizing the difficulties of ascertaining the truth of allegations about a public official whom the newspaper is investigating with an eye to publication. Absent protection for the nonreckless publication of 'facts' that subsequently prove to be false, the danger is that legitimate news and communication will be suppressed. But it is quite a different thing, not involving the same danger of self-censorship, to immunize professional communicators from liability for their use of ambiguous language and their failure to guard against the possibility that words known to carry two meanings, one of which imputes commission of a crime, might seriously damage the object of their comment in the eyes of the average reader. I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstood-if they are-by the ordinary reader of their publications. If it is thought that the First Amendment requires more protection for the media in this respect in accurately reporting events and statements occurring at official meetings, it would be preferable directly to carve out a wider privilege for such reporting.

I agree with the Court that there was error in the instructions concerning malice. The error, however, is irrelevant to the 'blackmail' phase of this case as I view it: if one assumes that the jury found that the crime of blackmail was charged, 'malice' is conceded, since the defendants admittedly knew such a charge was false.

Nevertheless, the jury returned a general verdict; it might have found that the blackmail statement did not impute a crime, but that the other damaging statements published by the newspaper were libelous. Indeed, this was the most likely course for the jury to have taken if the Court is correct that there was so little reason for basing liability on the blackmail allegation. Given this possibility, the error in the instructions requires reversal of the judgment. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurs in the judgment of the Court for the reasons set out in Mr. Justice Black's concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (1964), in his concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 170, 87 S.Ct. 1975, 1999, 18 L.Ed.2d 1094 (1967), and in Mr. Justice Douglas' concurring opinion in Garrison v. Louisiana, 379 U.S. 64, 80, 85 S.Ct. 209, 218, 13 L.Ed.2d 125 (1964).