Rosenblatt v. Baer/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, we dealt with elected officials. We now have the question as to how far its principles extend or how far down the hierarchy we should go.

The problems presented are considerable ones. Maybe the key man in a hierarchy is the night watchman responsible for thefts of state secrets. Those of us alive in the 1940's and 1950's witnessed the dreadful orderal of people in the public service being pummelled by those inside and outside government, with charges that were false, abusive, and damaging to the extreme. Many of them, unlike the officials in New York Times who ran far election, rarely had opportunity for rejoinder.

Yet if free discussion of public issues is the guide, I see no way to draw lines that exclude that night watchman, the file clerk, the typist, or, for that matter, anyone on the public payroll. And how about those who contract to carry out governmental missions? Some of them are as much in the public domain as any socalled officeholder. And how about the dollar-a-year man, whose prototype was publicized in United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S.Ct. 294, 5 L.Ed.2d 268? And the industrialists who raise the price of a basic commodity? Are not steel and aluminum in the public domain? And the labor leader who combines trade unionism with bribery and racketeering? Surely the public importance of collective bargaining puts labor as well as management into the public arena so far as the present constitutional issue is concerned.

The Court in Thornhill v. State of Alabama, 310 U.S. 88, 101 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093, put the issue as follows:

'The freedom of speech and of the press guaranteed by the     Constitution embraces at the least the liberty to discuss      publicly and truthfully all matters of public concern without      previous restraint or fear of subsequent punishment. The     exigencies of the colonial period and the efforts to secure      freedom from oppressive adminstration developed a broadened      conception of these liberties as adequate to supply the      public need for information and education with respect to the      significant issues of the times. * *  * Freedom of discussion,      if it would fulfill its historic function in this nation,      must embrace all issues about which information is needed or appropriate      to enable the members of society to cope with the exigencies      of their period.'

If the term 'public official' were a constitutional term, we would be stuck with it and have to give it content. But the term is our own; and so long as we are fashioning a rule of free discussion of public issues I cannot relate it only to those who, by the Court's standard, are deemed to hold public office.

The question in final analysis is the extent to which the Due Process Clause of the Fourteenth Amendment has displaced the libel laws of the States. I do not suppose anyone would have thought in those terms at the time the Amendment was adopted. But constitutional law is not frozen as of a particular moment of time. It was indeed not until 1931 that this Court squarely held that the First Amendment was applicable to the States by reason of the Fourteenth (Stromberg v. People of State of California, 283 U.S. 359, 368-369, 51 S.Ct. 532, 535, 75 L.Ed. 117)-New York Times being merely an application and extension of that principle. But since freedom of speech is now the guideline, do state libel laws have any place at all in our constitutional system, at least when it comes to public issues? If freedom of speech is the guide, why is it restricted to speech addressed to the larger public matters and not applicable to speech at the lower levels of science, the humanities, the professions, agriculture, and the like?

In my view the First Amendment would bar Congress from passing any libel law, the Alien and Sedition Act (1 Stat. 596) to the contrary notwithstanding. Some think that due process as applied to the States is a watered-down federal version as respects the guarantees in the Bill of Rights that are incorporated into the Fourteenth Amendment. See e.g., Roth v. United States, 354 U.S. 476, 501, 77 S.Ct. 1304, 1317, 1 L.Ed.2d 1498 (separate opinion); Beauharnais v. People of State of Illinois, 343 U.S. 250, 287, 72 S.Ct. 725, 746, 96 L.Ed. 919 (dissenting opinion). That has been the minority view, the majority maintaining that there is no difference. If there is no difference and if I am right in assuming Congress could not constitutionally pass a libel law, then the question is whether a public issue, not a public official, is involved.

The case is therefore for me in a different posture than the one discussed by the Court. I would prefer to dismiss the writ as improvidently granted. To facilitate our work, however, I have decided to join Part II of the Court's opinion, as well as Mr. Justice BLACK'S separate opinion, and to concur in the judgment.