Rosenbloom v. Metromedia, Inc./Dissent Marshall

Mr. Justice MARSHALL, with whom Mr. Justice STEWART joins, dissenting.

Here, unlike the other cases involving the New York Times doctrine, we are dealing with an individual who held no public office, who had not taken part in any public controversy, and who lived an obscure private life. George Rosenbloom, before the events and reports of the events involved here, was just one of the millions of Americans who live their lives in obscurity.

The protection of the reputation of such anonymous persons 'from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty.' Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring). But the concept of a citizenry informed by a free and unfettered press is also basic to our system of ordered liberty. Here these two essential and fundamental values conflict.

* The plurality has attempted to resolve the conflict by creating a conditional constitutional privilege for defamation published in connection with an event that is found to be of 'public or general concern.' The condition for the privilege is that the defamation must not be published 'with knowledge that it was false or with reckless disregard of whether it was false or not.' I believe that this approach offers inadequate protection for both of the basic values that are at stake.

In order for particular defamation to come within the privilege there must be a determination that the event was of legitimate public interest. That determination will have to be made by courts generally and, in the last analysis, by this Court in particular. Courts, including this one, are not annointed with any extraordinary prescience. But, assuming that under the rule announced by Mr. Justice BRENNAN for the plurality, courts are not simply to take a poll to determine whether a substantial portion of the population is interested or concerned in a subject, courts will be required to somehow pass on the legitimacy of interest in a particular event or subject; what information is relevant to self-government. See Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). The danger such a doctrine portends for freedom of the press seems apparent.

The plurality's doctrine also threatens society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation. This danger exists since all human events are arguably within the area of 'public or general concern.' My Brother BRENNAN does not try to provide guidelines or standards by which courts are to decide the scope of public concern. He does, however, indicate that areas exist that are not the proper focus of public concern, and cites Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). But it is apparent that in an era of a dramatic threat of over-population and one in which previously accepted standards of conduct are widely heralded as outdated, even the intimate and personal concerns with which the Court dealt in that case cannot be said to be outside the area of 'public or general concern.' The threats and inadequacies of using the plurality's conditional privilege to resolve the conflict between the two basic values involved here have been illustrated by the experience courts have had in trying to deal with the right of privacy. See Cohen, A New Niche for the Fault Principle: A Forthcoming Newsworthiness Privilege in Libel Cases?, 18 U.C.L.A.L.Rev. 371, 379-381 (1970); Kalven, Privacy in Tort Law-Were Warren and Brandeis Wrong?, 31 Law & Contemp.Prob. 326, 336 (1966). The authors of the most famous of all law review articles recommended that no protection be given to privacy interests when the publication dealt with a 'matter which is of public or general interest.' Warren & Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193, 214 (1890). Yet cases dealing with this caveat raise serious questions whether it has substantially destroyed the right of privacy as Warren and Brandeis envisioned it. For example, the publication of a picture of the body of plaintiff's daughter immediately after her death in an automobile accident was held to be protected. Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E.2d 286 (1951). And the publication of the details of the somewhat peculiar behavior of a former child prodigy, who had a passion for obscurity, was found to involve a matter of public concern. Sidis v. F-R Pub. Corp. 113 F.2d 806 (CA2 1940).

In New York Times the Court chose to balance the competing interests by seeming to announce a generally applicable rule. Here it is apparent that the general rule announced cannot have general applicability. The plurality's conditional privilege approach, when coupled with constitutionalizing of the factfinding process, see Part VI of Mr. Justice BRENNAN's opinion, results in the adoption of an ad hoc balancing of the two interests involved. The Court is required to weigh the nuances of each particular circumstances on its scale of values regarding the relative importance of society's interest in protecting individuals from defamation against the importance of a free press. This scale may arguably be a more finely tuned instrument in a particular case. But whatever precision the ad hoc method supplies is achieved at a substantial cost in predictability and certainty. Moreover, such an approach will require this Court to engage in a constant and continuing supervision of defamation litigation throughout the country. See Time, Inc. v. Pape, 401 U.S. 279, 293, 91 S.Ct. 633, 641, 28 L.Ed.2d 45 (1971) (Harlan, J., dissenting); Curtis Publishing Co. v. Butts, 388 U.S. 130, 171, 87 S.Ct. 1975, 1999-2000, 18 L.Ed.2d 1094 (1967) (opinion of Black, J.).

Undoubtedly, ad hoc balancing may be appropriate in some circumstances that involve First Amendment problems. See, e.g., Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). But in view of the shortcomings of my Brother BRENNAN's test, defamation of a private individual by the mass media is not one of the occasions for unfettered ad hoc balancing. A generally applicable resolution is available that promises to provide an adequate balance between the interest in protecting individuals from defamation and the equally basic interest in protecting freedom of the press.

As the plurality recognizes here and as was recognized as the basic premise of the New York Times principle, the threat that defamation law presents for the values encompassed in the concept of freedom of the press is that of self- censorship. Our notions of liberty require a free and vigorous press that presents what it believes to be information of interest or importance; not timorous, afraid of an error that leaves it open to liability for hundreds of thousands of dollars. The size of the potential judgment that may be rendered against the press must be the most significant factor in producing self-censorship-a judgment like the one rendered against Metromedia would be fatal to many smaller publishers.

The judgments that may be entered in defamation cases are unlike those that may be entered in most litigation since the bulk of the award is given to punish the defendant or to compensate for presumed damages. Here the jury awarded Mr. Rosenbloom $725,000 in punitive damages. This huge sum was given not to compensate him for any injury but to punish Metromedia. The concept of punitive or exemplary damages was first articulated in Huckle v. Money, 2 Wils. 205, 95 Eng.Rep. 768 (K.B. 1763)-one of the general warrant cases. There Lord Camden found that the power to award such damages was inherent in the jury's exercise of uncontrolled discretion in the awarding of damages. See 1 T. Sedgwick, Damages §§ 347-350 (9th ed. 1912). Today these damages are rationalized as a way to punish the wrongdoer and to admonish others not to err. See Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev. 1172 (1931). Thus they serve the same function as criminal penalties and are in effect private fines. Unlike criminal penalties, however, punitive damages are not awarded within discernible limits but can be awarded in almost any amount. Since there is not even an attempt to offset any palpable loss and since these damages are the direct product of the ancient theory of unlimited jury discretion, the only limit placed on the jury in awarding punitive damages is that the damages not be 'excessive,' and in some jurisdictions, that they bear some relationship to the amount of compensatory damages awarded. See H. Oleck, Damages to Persons and Property § 275, pp. 557-560 (1955). The manner in which unlimited discretion may be exercised is plainly unpredictable. And fear of the extensive awards that may be given under the doctrine must necessarily produce the impingement on freedom of the press recognized in New York Times.

In addition to the huge awards that may be given under the label of punitive or exemplary damages, other doctrines in the law of defamation allow substantial damages without even an offer of evidence that there was actually injury. See Montgomery v. Dennison, 363 Pa. 255, 69 A.2d 520 (1949); Restatement of Torts § 621 (1938). These doctrines create a legal presumption that substantial injuries 'normally flow' from defamation. There is no requirement that there be even an offer of proof that there was in fact financial loss, physical or emotional suffering, or that the plaintiff's standing in the community was diminished. The effect is to give the jury essentially unlimited discretion and thus to give much the same power it exercises under the labels of punitive or exemplary damages. The impingement upon free speech is the same no matter what label is attached.

The unlimited discretion exercised by juries in awarding punitive and presumed damages compounds the problem of self-censorship that necessarily results from the awarding of huge judgments. This discretion allows juries to penalize heavily the unorthodox and the unpopular and exact little from others. Such free wheeling discretion presents obvious and basic threats to society's interest in freedom of the press. And the utility of the discretion in fostering society's interest in protecting individuals from defamation is at best vague and uncertain. These awards are not to compensate victims; they are only windfalls. Certainly, the large judgments that can be awarded admonish the particular defendant affected as well as other potential transgressors not to publish defamation. The degree of admonition the amount of the judgment in relation to the defamer's means-is not, however, tied to any concept of what is necessary to deter future conduct nor is there even any way to determine that the jury has considered the culpability of the conduct involved in the particular case. Thus the essence of the discretion is unpredictability and uncertainty.

The threats to society's interest in freedom of the press that are involved in punitive and presumed damages can largely be eliminated by restricting the award of damages to proved, actual injuries. The jury's wide-ranging discretion will largely be eliminated since the award will be based on essentially objective, discernible factors. And the self-censhorship that results from the uncertainty created by the discretion as well as the self-censorship resulting from the fear of large judgments themselves would be reduced. At the same time, soceity's interest in protecting individuals from defamation will still be fostered. The victims of the defamation will be compensated for their real injuries. They will not be, however, assuaged far beyond their wounds. And, there will be a substantial although imprecise and imperfect admonition to avoid future defamation by imposing the requirement that there be compensation for actual damages.

My Brother HARLAN argues that it is unnecessary to go so far. Although he recognizes the dangers involved in failing 'to confine the amount of jury verdicts * *  * within any ascertainable limits,' Mr. Justice HARLAN suggests that on a finding of actual malice punitive damages may be awarded if they 'bear a reasonable and purposeful relationship to the actual harm done.' My Brother HARLAN envisions jurors being instructed to consider the deterrent function of punitive damages and to try to gear the punitive damages awarded in some undetermined way to actual injury. Apparently, the jury under the supervision of the court would weigh the content of the speech and the surrounding circumstances-inter alia, the position of the plaintiff, the wealth of the defendant, and the nature of the instrument of publication-on the scale of their values and determine what amount is necessary in light of the various interests involved. Since there would be no objective standard by which to measure the jury's decision there would be no predetermined limit of jury discretion and all of the threats to freedom of the press involved in such discretion would remain. The chant of some new incantation will, of course, provide clear authority for a court to substitute its values for the jury's and remake the decision. If this is what my Brother HARLAN envisions, he is merely moving the ad hoc balancing from the question of fault to the question of damages.

I believe that the appropriate resolution of the clash of societal values here is to restrict damages to actual losses. See Hill, The Bill of Rights and the Supervisory Power, 69 Col.L.Rev. 181, 191 n. 62 (1969). Of course, damages can be awarded for more than direct pecuniary loss but they must be related to some proved harm. See Wright, Defamation, Privacy, and the Public's Right to Know: A National Problem and a New Approach, 46 Tex.L.Rev. 630, 648 (1968). If awards are so limited in cases involving private individuals-persons first brought to public attention by the defamation that is the subject of the lawsuit-it will be unnecessary to rely, as both the plurality and to some extent Mr. Justice HARLAN do, on somewhat clusive concepts of the degree of fault, and unnecessary, for constitutional purposes, to engage in ad hoc balancing of the competing interests involved. States would be essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need.

The only constitutional caveat should be that absolute or strict liability, like uncontrolled damages and private fines, cannot be used. The effect of imposing liability without fault is to place 'the printed, written or spoken word in the same class with the use of explosives or the keeping of dangerous animals.' W. Prosser, The Law of Torts § 108, p. 792 (3d ed. 1964). Clearly, this is inconsistent with the concepts of freedom of the press.

Thus in this case I would reverse the judgment of the Court of Appeals for the Third Circuit and remand the case for a determination of whether Mr. Rosenbloom can show any actual loss.