Parties: Dun & Bradstreet v. Greenmoss Builders
Date: 1985-06-26
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Paragraph: 19 - N102* That case concerned a public official's recovery of damages for the publication of an advertisement criticizing police conduct in a civil rights demonstration. As the Court noted, the advertisement concerned "one of the major public issues of our time." Id., 376 U.S., at 271, 84 S.Ct., at 721. Noting that "freedom of expression upon public questions is secured by the First Amendment," id., at 269, 84 S.Ct., at 720 (emphasis added), and that "debate on public issues should be uninhibited, robust, and wide-open," id., at 270, 84 S.Ct., at 721 (emphasis added), the Court held that a public official cannot recover damages for defamatory falsehood unless he proves that the false statement was made with " 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not," id., at 280, 84 S.Ct., at 726.
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Paragraph: 54 - the First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech. None of our cases affords such a distinction; to the contrary, the Court has rejected it at every turn. It should be rejected again, particularly in this context, since it makes no sense to give the most protection to those publishers who reach the most readers and therefore pollute the channels of communication with the most misinformation and do the most damage to private reputation.
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Paragraph: 75 - In evaluating the subject matter of expression, this Court has consistently rejected the argument that speech is entitled to diminished First Amendment protection simply because it concerns economic matters or is in the economic interest of the speaker or the audience. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952); American Federation of Labor v. Swing, 312 U.S. 321, 325-326, 61 S.Ct. 568, 569-570, 85 L.Ed. 855 (1941); Thornhill v. Alabama, 310 U.S. 88, 101-103, 60 S.Ct. 736, 743-744, 84 L.Ed. 1093 (1940); see also Abood v. Detroit Board of Education, 431 U.S., at 231-232, and n. 28, 97 S.Ct., at 1797-1798, and n. 28. "[O]ur cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters—to take a nonexhaustive list of labels—is not entitled to full First Amendment protection." Id., at 231, 97 S.Ct., at 1797. The breadth of this protection evinces recognition that freedom of expression is not only essential to check tyranny and foster self-government but also intrinsic to individual liberty and dignity and instrumental in society's search for truth.
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Paragraph: 78 - ("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").
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Paragraph: 46 - Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual's right to the protection of his own good name is a basic consideration of our constitutional system, reflecting " '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.' " Gertz, supra, at 341, 94 S.Ct., at 3008, quoting Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring). The upshot is that the public official must suffer the injury, often cannot get a judgment identifying the lie for what it is, and has very little, if any, chance of countering that lie in the public press.
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Paragraph: 69 - The free speech guarantee gives each citizen an equal right to self-expression and to participation in self-government. See, e.g., Carey v. Brown, 447 U.S. 455, 459-463, 100 S.Ct. 2286, 2289-2291, 65 L.Ed.2d 263 (1980); Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971); Whitney v. California, 274 U.S. 357, 375-377, 47 S.Ct. 641, 648-649, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). This guarantee also protects the rights of listeners to N181* "the widest possible dissemination of information from diverse and antagonistic sources."
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Paragraph: 75 - In evaluating the subject matter of expression, this Court has consistently rejected the argument that speech is entitled to diminished First Amendment protection simply because it concerns economic matters or is in the economic interest of the speaker or the audience.
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Paragraph: 81 - Credit reporting is not "commercial speech" as this Court has defined the term.
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Paragraph: 48 - If the press could be faced with possibly sizable damages for every mistaken publication injurious to reputation, the result would be an unacceptable degree of self-censorship, which might prevent the occasional mistaken libel, but would also often prevent the timely flow of information that is thought to be true but cannot be readily verified. The press must therefore be privileged to spread false information, even though that information has negative First Amendment value and is severely damaging to reputation, in order to encourage the full flow of the truth, which otherwise might be withheld.
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Paragraph: 26 - In contrast, speech on matters of purely private concern is of less First Amendment concern. Id., at 146-147, 103 S.Ct., at 1689-1690. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent. In such a case, N98* "[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press. The facts of the present case are wholly without the First Amendment concerns with which the Supreme Court of the United States has been struggling."
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Paragraph: 59 - In New York Times Co. v. Sullivan the Court held that the First Amendment shields all who speak in good faith from the threat of unrestrained libel judgments for unintentionally false criticism of a public official. Recognizing that libel law, like all other governmental regulation of the content of speech, N48* "can claim no talismanic immunity from constitutional limitations [and] must be measured by standards that satisfy the First Amendment," 376 U.S., at 269, 84 S.Ct., at 720, the Court drew from salutary common law developments, id., at 280, and n. 20, 84 S.Ct., at 726 and n. 20. and unquestioned First Amendment principles, id., at 273-274, 84 S.Ct., at 722, to formulate the now-familiar actual malice test. Because the N49* "erroneous statement is inevitable in free debate . . . [it] must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive.' "
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Paragraph: 74 - The five Members of the Court voting to affirm the damages award in this case have provided almost no guidance as to what constitutes a protected "matter of public concern." Justice WHITE offers nothing at all, but his opinion does indicate that the distinction turns on solely the subject matter of the expression and not on the extent or conditions of dissemination of that expression. Ante, at 773. Justice POWELL adumbrates a rationale that would appear to focus primarily on subject matter. The opinion relies on the fact that the speech at issue was "solely in the individual interest of the speaker and its specific business audience," ante, at 762 (emphasis added). Analogizing explicitly to advertising, the opinion also states that credit reporting is "hardy" and "solely motivated by the desire for profit." Ibid. These two strains of analysis suggest that Justice POWELL is excluding the subject matter of credit reports from "matters of public concern" because the speech is predominantly in the realm of matters of economic concern.
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Paragraph: 61 - Our cases since New York Times Co. v. Sullivan have proceeded from the general premise that all libel law implicates First Amendment values to the extent it deters true speech that would otherwise be protected by the First Amendment. 376 U.S., at 269, 84 S.Ct., at 720. In this sense defamation law does not differ from state efforts to control obscenity, see Miller v. California, 413 U.S. 15, 23-24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973), ensure loyalty, see Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), protect consumers, see Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), oversee professions, see Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), or pursue other public welfare goals through content-based regulation of speech.
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Paragraph: 62 - In libel law, no less than any other governmental effort to regulate speech, States must therefore use finer instruments to ensure adequate space for protected expression.
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Paragraph: 68 - We protect the press to ensure the vitality of First Amendment guarantees. This solicitude implies no endorsement of the principle that speakers other than the press deserve lesser First Amendment protection.N156* "In the realm of protected speech, the legislature is constitutionally disqualified from dictating . . . the speakers who may address a public issue."
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Paragraph: 70 - N157* Arguing that at most Gertz should protect speech that "deals with a matter of public or general importance," ante, at 773, Justice WHITE, without analysis or explanation, decides that the credit report at issue here falls outside this protected category.
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Paragraph: 88 - N158* Even if Justice POWELL's characterization of the credit reporting at issue here were accepted in its entirety, his opinion would have done no more than demonstrate that this speech is the equivalent of commercial speech. The opinion, after all, relies on analogy to advertising. Credit reporting is said to be hardy, motivated by desire for profit, and relatively verifiable. Ante, at 752. But this does not justify the elimination of restrictions on presumed and punitive damages. State efforts to regulate commercial speech in the form of advertising must abide by the requirement that the regulatory means chosen be narrowly tailored so as to avoid any unnecessary chilling of protected expression.
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Paragraph: 89 - Rather, the Court recognized and applied the principle that regulatory measures that chill protected speech be no broader than necessary to serve the legitimate state interest asserted. The plurality opinion today recognizes, as it must, that the state interest at issue here is identical to that at issue in Gertz. What was "irrelevant" in Gertz must still be irrelevant, and the requirement that the regulatory means be no broader than necessary is no less applicable even if the speech is simply the equivalent of commercial speech.
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