Harte-Hanks Communications, Inc. v. Connaughton/Concurrence Blackmun

Justice BLACKMUN, concurring.

I agree with the majority's analysis and with the result it reaches. I write separately, however, to stress two points.

First, the case reaches us in an odd posture, one which stands in the way of giving full consideration to aspects of the content of the article under attack that perhaps are of constitutional significance. Petitioner has abandoned the defense of truth, see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), despite the fact that there might be some support for that defense. We therefore must presume that the jury correctly found that the article was false, see ante, at 681, and decide whether petitioner acted with knowledge or reckless disregard of its falsity. In addition, petitioner has eschewed any reliance on the "neutral reportage" defense. Cf. Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (CA2), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977). This strategic decision appears to have been unwise in light of the facts of this case. The article accurately reported newsworthy allegations that Daniel Connaughton, a political candidate, had used "dirty tricks" to elicit information from Alice Thompson and her sister, information that had become central to the political campaign, and also accurately reported Connaughton's response, which confirmed the existence of discussions with Thompson that touched upon the subject matter of her allegations but claimed that Thompson's version of these discussions was incorrect. Were this Court to adopt the neutral reportage theory, the facts of this case arguably might fit within it. That question, however, has also not been squarely presented.

Second, I wish to emphasize that the form and content of the story are relevant not only to the falsity and neutral reportage questions, but also to the question of actual malice. In the past, this Court's decisions dealing with actual malice have placed considerable emphasis on the manner in which the allegedly false content was presented by the publisher. See Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 12-13, 90 S.Ct. 1537, 1540-1541, 26 L.Ed.2d 6 (1970) (truthful and accurate reporting of what was said at public meeting on issues of public importance not actionable); Time, Inc. v. Pape, 401 U.S. 279, 290-292, 91 S.Ct. 633, 639-641, 28 L.Ed.2d 45 (1971) (erroneous interpretation of Government report not "actual malice"). Under our precedents, I find significant the fact that the article in this case accurately portrayed Thompson's allegations as allegations, and also printed Connaughton's partial denial of their truth. The form of the story in this case is markedly different from the form of the story in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), where the informant's description of the events was presented as truth rather than as contested allegations. These differences in presentation are relevant to the question whether the publisher acted in reckless disregard of the truth: presenting the content of Thompson's allegations as though they were established fact would have shown markedly less regard of their possible falsity.

Several aspects of the majority's opinion in this case might be interpreted as breaking with our practice of considering the form and content of the article in making malice determinations. The majority notes the form of the story, see ante, at 680-681, but its account of the evidence it finds probative of actual malice, ante, at 682-685, deals exclusively with evidence extrinsic to the story itself. The absence of any discussion of Pape and Bresler also might be understood as a suggestion that the manner in which the contested statements are presented is irrelevant to the malice inquiry. Finally, the majority relies upon Butts in the course of its discussion of petitioner's purposefully incomplete investigation of its story, ante, at 692-693, in a manner that suggests it might not have accorded significance to the difference between the forms of the respective stories in Butts and in this case.

I am confident, however, that these aspects of the majority's opinion are omissions in explanation rather than in analysis, and that the majority's opinion cannot fairly be read to hold that the content of the article is irrelevant to the actual malice inquiry. Because I am convinced that the majority has considered the article's content and form in the course of its painstaking "review of the entire record," see ante, at 689, and because I conclude that the result the majority reaches is proper even when the contents of the story are given due weight, I concur.