Parties: Phila. Newspapers v. Hepps
Date: 1986-04-21
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Paragraph: 9 - N99* "A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount leads to . . . 'self-censorship.' . . . Under such a N100* rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so."
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Paragraph: 43 - The Court's result is plausible however, only because it grossly undervalues the strong state interest in redressing injuries to private reputations. The error lies in its initial premise, with its mistaken belief that doubt regarding the veracity of a defamatory statement must invariably be resolved in favor of constitutional protection of the statement and against vindication of the reputation of the private individual. To support its premise, the Court relies exclusively on our precedents requiring the government to bear the burden of proving that a restriction of speech is justified. See ante, at 777-778. Whether such restrictions appear in the form of legislation burdening the speech of particular speakers or of particular points of view, or of common-law actions punishing seditious libel, the Court is doubtlessly correct that the government or its agents must at a minimum shoulder the burden of proving that the speech is false and must do so with sufficient reliability that we can be confident that true speech is not suppressed. It was to achieve this reliability that the Court, in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), incorporated into the First Amendment the then-emergent common-law N52* "privilege for [good-faith] criticism of official conduct." Id., at 282, 84 S.Ct., at 727. See id., at 282, n. 21, 84 S.Ct., at 727, n. 21. Because N53* "erroneous statement is inevitable in free debate, and [because] it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive, N.A.A.C.P. v. Button, 371 U.S. 415, 433 [83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963) ],' " id., 376 U.S., at 271-272, 84 S.Ct., at 721-722, this privilege is defeasible only if the defamatory statement N54* "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 279-280, 84 S.Ct., at 725-726. N55* "Allowance of the defense of truth, with the burden of proving it on the defendant," was found wanting because it did not "mean that only false speech [would] be deterred"—doubts regarding whether truth "can be proved in court or fear of the expense of having to do so" would force good-faith critics of official conduct to " 'steer far wider of the unlawful zone,' "
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Paragraph: 32 - N164* The Court, after acknowledging the need to N165* " 'accommodat[e] . . . the law of defamation and the freedoms of speech and press protected by the First Amendment,' " ante, at 768 (quoting Gertz v. Robert Welch, Inc., 418 U.S., at 325, 94 S.Ct., at 3000), decides to override "the common-law presumption" retained by several States that "defamatory speech is false" because of the need "[t]o ensure that true speech on matters of public concern is not deterred." Ante, at 776-777. I do not agree that our precedents require a private individual to bear the risk that a defamatory statement—uttered either with a mind toward assassinating his good name or with careless indifference to that possibility—cannot be proven false. By attaching no weight to the State's interest in protecting the private individual's good name, the Court has reached a pernicious result.
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Paragraph: 22 - In the context of governmental restriction of speech, it has long been established that the government cannot limit speech protected by the First Amendment without bearing the burden of showing that its restriction is justified. See Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. 530, 540, 100 S.Ct. 2326, 2334, 65 L.Ed.2d 319 (1980) (content-based restriction); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978) (speaker-based restriction); Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47-54, 106 S.Ct. 925, 928-932, 89 L.Ed.2d 29 (1986) (secondary-effects restriction). See also Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (striking down the precondition that a taxpayer sign a loyalty oath before receiving certain tax benefits). It is not immediately apparent from the text of the First Amendment, which by its terms applies only to governmental action, that a similar result should obtain here: a suit by a private party is obviously quite different from the government's direct enforcement of its own laws. Nonetheless, the need to encourage debate on public issues that concerned the Court in the governmental-restriction cases is of concern in a similar manner in this case involving a private suit for damages: placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result. See New York Times, 376 U.S., at 279, 84 S.Ct., at 725; Garrison, supra, 379 U.S., at 74, 85 S.Ct., at 215 N166* ("Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned"). Because such a "chilling" effect would be antithetical to the First Amendment's protection of true speech on matters of public concern, we believe that a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant. To do otherwise could N167* "only result in a deterrence of speech which the Constitution makes free."
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