Rosenblatt v. Baer/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring and dissenting.

Respondent Baer managed the financial affairs of a ski recreation center owned and operated by Belknap County, New Hampshire. Petitioner Rosenblatt, an unpaid columnist for a local newspaper, published a column criticizing the past management of the center. Baer thought the column implied dishonest manipulations in his handling of the finances for the center. Charging this he sued Rosenblatt for libel and obtained a verdict for $31,500 which the Supreme Court of New Hampshire affirmed. This Court, relying on New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 and Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, reverses that judgment and remands to the state court under conditions expressed in its opinion that will allow a new trial and another judgment against Rosenblatt. I concur in the reversal but dissent from leaving the case open for a new trial believing that for reasons stated in the concurring opinions of Mr. Justice Douglas and myself in the New York Times and Garrison cases a libel judgment against Rosenblatt is forbidden by the First Amendment which the Fourteenth made applicable to the States.

I think the publication here, discussing the way an agent of government does his governmental job, is the very kind that the First Amendment was adopted primarily to protect. The article here sued on as libelous discusses the use of the public's money to take care of the public's business by a paid agent of the public. Unconditional freedom to criticize the way such public functions are performed is in my judgment necessarily included in the guarantees of the First Amendment. And the right to criticize a public agent engaged in public activities cannot safely, and should not, depend upon whether or not that agent is arbitrarily labeled a 'public official.' Nor should the right to criticize depend upon how high a position in government a public agent may occupy. Indeed a large percentage of public moneys expended is distributed by local agents handling local funds as the respondent in this case did. To be faithful to the First Amendment's guarantees, this Court should free private critics of public agents from fear of libel judgments for money just as it has freed critics from fear of pains and penalties inflicted by government.

This case illustrates I think what a short and inadequate step this Court took in the New York Times case to guard free press and free speech against the grave dangers to the press and the public created by libel actions. Half-million-dollar judgments for libel damages like those awarded against the New York Times will not be stopped by requirements that 'malice' be found, however that term is defined. Such a requirement is little protection against high emotions and deep prejudices which frequently pervade local communities where libel suits are tried. And this Court cannot and should not limit its protection against such press-destroying judgments by reviewing the evidence, findings, and court rulings only on a case-by-case basis. The only sure way to protect speech and press against these threats is to recognize that libel laws are abridgments of speech and press and therefore are barred in both federal and state courts by the First and Fourteenth Amendments. I repeat what I said in the New York Times case that 'An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.'

Finally, since this case is to be sent back and a new trial may follow, I add one further thought. The Court indicates that in a retrial it will be for the trial judge 'in the first instance' to decide whether respondent is a 'public official.' Statements like this have a way of growing and I fear that the words 'in the first instance' will soon be forgotten. When that happens the rule will be that the Federal Constitution forbids States to let juries decide essentially jury questions in libel cases. After a long fight in England Fox's Libel Act of 1792 was passed and it provided that juries should be the judges of both the law and the facts in libel cases. This was heralded by all lovers of freedom of speech and press as a victory for freedom. This rule was particularly approved in this country where in 1735 John Peter Zenger was prosecuted in a highly publicized trial for criticizing the government of New York. In that case the Chief Justice of the Province of New York got rid of two lawyers who dared defend Zenger by disbarring them. The lawyer who finally defended Zenger, Andrew Hamilton, won imperishable fame in this country by his boldness in telling the jury that they, not the judge, had the right to say whether or not the defendant was guilty. Zenger was acquitted. 17 How.St.Tr. 675. Many of the States familiar with this oppressive practice of denying the jury and granting the judge power to determine the guilt of a defendant in libel cases wrote in their constitutions special provisions to protect the right to trial by jury in such cases. I regret to see the Court take a single step in the direction of holding that a judge rather than the jury is to have the determination of any fact in libel cases. Compare Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

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.