Rosenblatt v. Baer/Concurrence Clark

Mr. Justice CLARK concurs in the result.

Mr. Justice HARLAN, concurring in part and dissenting in part.

I agree with the Court's opinion except for Part II, in which a section of the trial court's charge is characterized as depending upon a 'theory' of 'impersonal' libel, which we held constitutionally impermissible in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710.

In New York Times, in addition to establishing a constitutional standard governing actions for defamation of public officials, we went on to examine the evidence in that particular case. We found that 'it was incapable of supporting the jury's finding that the allegedly libelous statements were made 'of and concerning' respondent.' 376 U.S., at 288, 84 S.Ct., at 730. The statements in question, in general terms, attributed misconduct to the police of Montgomery, Alabama, during civil rights activities. The plaintiff in the libel suit, the Commissioner of Public Affairs, pressed his action not on the theory that the statements referred to him, but instead 'solely on the unsupported assumption that, because of his official position,' the statements must be taken as indicating that he had been involved in the misconduct. 376 U.S., at 289, 84 S.Ct., at 731. The Supreme Court of Alabama held that '(i)n measuring the performance or deficiencies of * *  * groups (such as the police), praise or criticism is usually attached to the official in complete control of the body,' 273 Ala. 656, at 674-675, 144 So.2d 25, at 39, and allowed the action by the Commissioner.

In setting aside the state judgment we noted that this proposition had 'disquieting implications for criticism of governmental conduct,' 376 U.S., at 291, 84 S.Ct., at 732, for it permitted any general statement criticizing some governmental activity to be transmuted into a cause of action for personal libel by the official in charge of that activity. We stated that the liberty of expression embodied in the Fourteenth Amendment forbade a State from permitting 'an otherwise impersonal attack on governmental operations' to be used as the basis of 'a libel of an official responsible for those operations.' 376 U.S., at 292, 84 S.Ct., at 732.

This salutary principle has been applied, I believe incorrectly, to the facts of this case. It is true that, on its face, the alleged libel here seems to discuss only the conduct of governmental operations, viz., the comparative improvement in the management of the ski area. However, the theory on which respondent based his claim is that the rhetorical question, 'What happened to all the money last year? and every other year?' was read as accusing him of peculation or culpable mismanagement. The trial court and the Supreme Court of New Hampshire, as well as this Court, have found this a permissible reading of the newspaper article.

The charge of the trial court did not leave the jury free to convert an 'impersonal' into a 'personal' libel. The court merely instructed the jury that if it interpreted the article as an accusation of misconduct the jury could find for the plaintiff if either he alone was found to be libeled, or he was one of a small group of persons so libeled. This is conventional tort law. '(I)f the group is small enough numerically or sufficiently restricted geographically so that people reasonably think the defamatory utterance was directed to or intended to include the plaintiff, there may be a recovery.' 1 Harper & James, Torts § 5, 7, at 367 (1956). See also Prosser, Torts § 106, at 767-768 (1964); Riesman, Democracy and Defamation: Control of Group Libel, 42 Col.L.Rev. 727, 759-760 (1942). The Restatement of Torts § 564, Comment c (1938), includes this aspect of defamation in language very similar to that of the charge in this case:

'The size of the class may be so small as to indicate that     the plaintiff is the person intended or at least to cast such      grave suspicion upon him as to be defamatory of him. Thus, a     statement that all members of a school board or a city      council are corrupt is sufficiently definite to constitute a      defamatory publication of each member thereof. If, however,     the group or class disparaged is a large one, some particular      circumstances must point to the plaintiff as the person      defamed. Thus, a statement that all lawyers are dishonest or     that all ministers are liars is not defamatory of any      particular lawyer or minister unless the surrounding      circumstances indicate that he was the person intended.'

This and the trial court's formulation can scarcely be thought too indefinite, for they reflect standards successfully applied over the years in numerous state cases. See, e.g., Gross v. Cantor, 270 N.Y. 93, 200 N.E. 592; cases cited in Harper & James, supra, § 5.7, at 367; and Prosser, supra, § 106, at 767 768. The rule is an eminently sound one.

As to the facts at hand, it seems to be agreed-apart of course from the public-official 'malice' rule which would apply in any event-that if the article in question is read by the jury as an accusation of wrongdoing by Baer, he has a good cause of action in libel. I see no reason why that cause of action should fail if the jury finds that the article was read as accusing the three Commissioners along with Baer. This is a very different case from New York Times, where the alleged libel concerned not an identified small group responsible for the running of a particular public enterprise, but a criticism of 'the police' generally in the discharge of their duties. It seems manifest that in instructing the jury as to a 'small group,' the trial judge was not allowing the plaintiff to transform impersonal governmental criticism into an individual cause of action, but was simply referring to this traditional tort doctrine that more than one person can be libeled by the same statement. I cannot understand why a statement which a jury is permitted to read as meaning 'A is a thief' should become absolutely privileged if it is read as meaning 'A, B, C, and D are thieves.'

Without receding in any way from our ruling in New York Times that impersonal criticism of government cannot be made a basis for a libel action by an official who heads the branch or agency involved, I dissent from the Court's conclusion that this is such a case. In all other respects I join the Court's opinion.

Mr. Justice FORTAS, dissenting.