1 The Writings of Thomas Jefferson 46 (Lipscomb & Bergh, eds.) (1903) (letter to Walter Jones, Jan. 24, 1814). See J. Spear, Presidents and the Press: The Nixon Legacy 33–44 (1984).Google Scholar

2 Prosser, W., Handbook of the Law of Torts 737 (4th ed. 1971).Google Scholar

3 Chaplinski v. New Hampshire, 315 US. 568, 571–72 (1942). See Beauharnais v. Illinois, 343 US. 250 (1952).Google Scholar

4 New York Times Co. v. Sullivan, 376 U.S. 254, 270, 279 (1964).Google Scholar

5 Although the precise definition of a “defamatory communication” depends on state law, in general a communication is deemed defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Restatement of the Law (Second) of Torts 5 559 (1977).Google Scholar

6 New York Times, 376 U.S. at 279–80. In subsequent decisions the Court made clear that “reckless disregard” was not to be “measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.”St. Thompson, Amant V., 390 U.S. 727, 731 (1968). The “actual malice” that a public official plaintiff must demonstrate thus turns entirely on the “state of mind of the defendant.” Lando, Herbert V., 441 U.S. 153, 160 (1979). The “actual malice” requirement applies only to those defamatory communications “which might touch on an official's fitness for office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971). See Garrison v. Louisiana, 379 U.S. 64, 76–77 (1964). In addition to proving actual malice, a public official must also bear the burden of proving that the defamatory communication is false. Philadelphia Newspapers, Inc. v. Hepps, 106 Sup. Ct. 1558, 1563 (1986). Compare id. at 1570 n.10 (Stevens, J., dissenting).Google Scholar

7 See, e.g., Curtis Publishing Co. v. Butts, 388 US. 130 (1967); Rosenbloom v. Metromedia, Inc., 403 US. 29 (1971); Gertz V. Robert Welch, Inc., 418 US. 323 (1974).Google Scholar

8 These are Chief Justice Rehnquist, Justice White, and former Chief Justice Burger. See Dun & Bradstreet, Inc. Y. Greenmoss Builders, 472 US. 749, 764 (1985) (Burger, C.J., concurring); id., at 765–74 (White, J., concurring); Coughlin v. Westinghouse Broadcasting & Cable, Inc., 106 S. Ct. 2927 (1986) (Burger, C.J., dissenting from denial of certiorari).Google Scholar

9 Lewis, , New York Times v. Sullivan Reconsidered: Time to Return to “The Central Meaning of the First Amendment,” 83 Col. L. Rev. 603, 621 (1983).CrossRefGoogle Scholar

10 Adler, Annals of the Law, New Yorker, June 16, 1986, at 47; June 23, 1986, at 35.Google Scholar

11 Bezanson, . Libel Law and the Realities of Litigation: Setting the Record Straight. 71 Iowa L. Rev. 226. 227 (1985). The reason for this strange outcome is that a public official can always attribute the loss of a libel suit to the “actual malice” rule, and hence need never face an adverse determination concerning the truth of the underlying communication. The Iowa Libel Research Project found that public officials “see the act of initiating suit, independent of its result, as an effective and public form of reply or response” that legitimizes “their claim of falsity.”Id. at 228 (emphasis added). See Bezanson, , The Libel Suit in Perspective: What Plaintiffs Want and What Plaintiffs Get, 74 Cal. L. Rev. 789 (1986). Recent fragmentary evidence seems to indicate that the frequency of defamation suits by public officials is increasing. See Libel Defense Resource Center, LDRC Study No. 7: Public Official Libel Actions, LRDC Bull. No. 16, Mar. 15, 1986.Google Scholar

12 See, e.g., H.R. 2846, 99th Cong., 1st Sess. 1985 (“Schumer Bill”); S. 1979, 1985–86 Cat. Leg., Reg. Sess. (1986) (“Lockyer Bill”); Franklin, , Good Names and Bad Law: A Critique of Libel Law and a Proposal, 18 U.S.F.L. Rev. 1 (1983); id., A Declaratory Judgment Alternative to Current Libel Law, 74 Cal. L. Rev. 809 (1986); Barrett, Declaratory Judgments for Libel: A Better Alternative, 74 Cal. L. Rev. 847 (1986). Most of these proposals are variations on the notion that a public official should be entitled to bring an action for a declaratory judgment, pursuant to which the truth of the defamatory communication would be determined but no damages awarded.Google Scholar

13 Rosenberg is quite self-conscious about this. He cautions readers at the outset “that Protecting the Best Men seeks to break from the more traditional modes of legal history,” by which he means that the work is intended to examine “forces that are not distinctly legal, especially changes in political practices, in ideas of social and political order, … in the nature of American journalism” as well as “the changing nature of the profession of journalism and of other news-producing institutions.”Id. at 7–9. Rosenberg's understanding of law has also been deeply influenced by the criticism of doctrine associated with legal realism and the Critical Legal Studies movement.Google Scholar

14 L. Levy, Emergence of a Free Press (1985) (“Levy, Emergence”); id., Legacy of Suppression: Freedom of Speech and Press in Early American History (1960).Google Scholar

15 Levy, Emergence at x.Google Scholar

16 As Levy notes, the crime of seditious libel “has never been satisfactorily or consistently defined,” but its general contours embraced speech “defaming or contemning or ridiculing the government: its form, constitution, officers, laws, conduct, or policies, to the jeopardy of the public peace.”Id. at 8. In the 18th century, libel was both a crime and a civil tort, which meant that an injured plaintiff could elect to bring either a criminal prosecution or a civil action. Truth was a defense to the tort, but at English common law it was deemed immaterial to the crime. See note 18 infra. Criminal libel was divided into four great branches: sedition, defamation, obscenity, and blasphemy. See Spencer, Criminal Libel—A Skeleton in the Cupboard (1), 1977 Crim. L. Rev. 383.Google Scholar

17 Levy, Emergence at x, xv.Google Scholar

18 At traditional English common law, truth provided no defense to the crime of libel, and defendants were even prohibited from presenting evidence of the truth of their communications. Even in the 18th century Americans were distinctly uncomfortable with this doctrinal framework. The alternative approach that gained the most widespread acceptance was that articulated by the New York Supreme Court in People v. Croswell, 3 Johnson's (N.Y.) Cases 336 (1804). The Croswell approach was eventually enacted as a New York statute providing that truth was a defense to a prosecution for libel if, but only if, the offending communication was published “with good motives and for justifiable ends.” It is characteristic of Levy's approach that he views the Croswell test as having “really carried the day in the court of history until New York Times Y. Sullivan.” Levy, Emergence at xix.Google Scholar

19 Wilentz, , On Class and Politics in Jacksonian America, 10 Revs. in Am. His., Dec. 1982, at 55–57.Google Scholar

20 The Newspaper Press, Am. Rev. 2 (ns. 1848): 564–99, at 597 (quoted in Rosenberg at 143–44). Rosenberg does not make clear whether this mutual forbearance rested on an implicit understanding concerning the kinds of defamatory allegations that were appropriate to political struggle, or whether it rested instead on a common interest in keeping the political press free from judicial oversight.Google Scholar

21 New Yorker, Feb. 23, 1839, reprinted in E. Outland, The ‘Effingham’ Libels on Cooper 82 (1929).Google Scholar

22 See G. Fredrickson, The Inner Civil War (1965).Google Scholar

23 Rosenberg reports that during the period from 1865 to 1876 there were fewer than 20 reported libel prosecutions in the entire country, and that in previous decades there were likewise “a relatively small number of criminal libel prosecutions.”Id. at 156 & n.10.Google Scholar

24 Cooley, T., A Treatise on the Law of Torts 218 (1880) (“Cooley, Torts”).Google Scholar

25 Id.Google Scholar

26 T. Cooley, The General Principles of Constitutional Law 274 (1880). In Cooley's view the law should take account of the technology underlying the newspaper industry, as, for example, the fact that news often came from “telegraph dispatches,” and that therefore “the publisher can have no knowledge concerning it, and no inquiries which he could make would be likely to give him more definite information, unless he delays the publication until it ceases to be of value to his readers.” Cooley, A Treatise on Constitutional Limitations 454 (1868) (“Cooley, Constitutional Limitations”). Cooley noted in truly prescient fashion that “The railway has become the successor of the king's highway, and the plastic rules of the common law have accommodated themselves to the new condition of things; but the changes accomplished by the public press seem to have passed unnoticed in the law, and, save only where modifications have been made by constitution or statute, the publisher of the daily paper occupies to-day the position in the courts that the village gossip and retailer of scandal occupied two hundred years ago, with no more privilege and no more protection.”Id. at 452.Google Scholar

27 78 Kan. 711, 98 P. 281 (1908).Google Scholar

28 By the turn of the century most states provided a conditional privilege for statements of opinion on matters of public concern, but no privilege at all for the publication of false defamatory facts. The leading decision in this regard was Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N.E. 1 (1891) (per Oliver Wendell Holmes).Google Scholar

29 Scripps, MacLean V., 52 Mich 250, 253, 18 N.W. 209, 210 (1884).Google Scholar

30 “Every party has its newspaper organs; every shade of opinion on political, religious, literary, moral, industrial, or financial questions has its representative; every locality has its press to advocate its claims, and advance its interests …” Cooley, Constitutional Limitations at 452.Google Scholar

31 1 Cooley, T., A Treatise on the Law of Torts 443 (3d. 1906) (Lewis, J. ed.). By contrast, in 1868 Cooley had explicitly criticized the “assumption, that the private character of a public officer is something aside from, and not entering into or influencing, his public conduct, and that a thoroughly dishonest man may be a just minister. Any such assumption is false to human nature, and the public have a right to assume that a corrupt life will influence public conduct, however plausibly it may be glossed over. They are, therefore, interested in knowing what the character of their public servants is, as well as that of persons offering themselves for their suffrages. If so, it would seem that there should be some privilege of comment; that that privilege could only be limited by good faith and just intention.” Cooley, , Constitutional Limitations at 440.Google Scholar

32 Chafee, Z., 1 Government and Mass Communications 103 (1947).Google Scholar

33 Kalven, The Law of Defamation and the First Amendment, in Conference on the Arts, Publishing, and the Law 4 (Law School, University of Chicago, May 5, 1952).Google Scholar

34 Abrams v. United States, 250 U.S. 616 (1919).Google Scholar

35 For a discussion of the contrast between the progressive and liberal traditions, see Gordon, Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920, in Professions and Professional Ideologies in America (G. Geison ed. 1983).Google Scholar

36 The work contains occasional inaccuracies. Contrary to Rosenberg's assertion, for example, allegations of “unchastity in a woman” did not under English common law fall into “the category of ‘slander per se.’”Rosenberg, at 274 n.12. See Lyon, Pollard V., 91 U.S. 225 (1875). In Bindrim v. Mitchell the “Supreme Court” did not, as claimed by Rosenberg, give “the general literary community” an unanticipated jolt by announcing a new rule of law. Bindrim was decided by a lower California court and broke no new doctrinal ground. See Rosenberg at 256; Mitchell, Bindrim V., 92 Cal. App. 3d 61, 155 Cal. Rptr. 29, cert. denied, 444 U.S. 984 (1979); Schauer, Liars, Novelists, and the Law of Defamation, 51 Brook. L. Rev. 233, 234 (1985).Google Scholar

37 Rosenberg at 262; see id. at 266.Google Scholar

38 See, e.g., Restatement of Torts §§ 606–7 (1938); Pulvermann v. A.S. Abell Co., 228 F.2d 797 (4th Cir. 1956); Ollman v. Evans, 750 F.2d 970, 993–1001 (D.C. Cir. 1984) (Bork J., concurring), cert. denied, 471 U.S. 1127 (1985). See note 28 supra.Google Scholar

39 The doctrine of neutral reportage is designed to create a constitutional privilege for the accurate and disinterested reporting of serious charges made against public figures in the context of a public controversy. See Edwards v. National Audubon Society, 556 F.2d 113 (2d Cir.), cert. denied sub nom. Edwards v. New York Times Co., 434 U.S. 1002 (1977); Barry v. Time, Inc., 584 F. Supp. 1110 (N.D. Cal. 1984); Note, The Developing Privilege of Neutral Reportage, 69 Va. L. Rev. 853 (1983). Under common law doctrine, those who repeat a defamatory communication are as liable as the person who originally publishes it. Thus if the President calls a certain individual corrupt, the press can be liable for repeating the accusation. The privilege of neutral reportage is meant to shield the press from such liability, and hence to protect its ability to report on important and sometimes bitter public disagreements, even if the press lacks independent knowledge concerning the truth of the underlying defamation. In this sense the privilege is an attempt to acknowledge the difference between the modem press and “the village gossip … [of] two hundred years ago.” See note 26 supra.Google Scholar

40 Although the precise distinction between libel per se and libel per quod varies from state to state, in general libel per se is a written communication whose defamatory content is patent on its face, while libel per quod is a communication that only becomes defamatory when understood in the light of extrinsic facts. An example of the former would be a newspaper story to the effect that “John is an adulterer”; an example of the latter would be a local newspaper announcement to the effect that “John will marry Jane,” when the entire community knows that John is already married to Mary. Since damages are more difficult to establish for libel per quod than for libel per se, the distinction should be understood as a recognition that the press cannot, like a village gossip, be viewed as a member of a community with implicit knowledge of all pertinent background facts. As Cooley, recognized, technological innovations in the transmission of information have caused the press to receive and communicate information to many different communities concerning which it can have no such intimate knowledge. See note 26 supra. For a sampling of the controversy surrounding the distinction between libel per se and libel per quod, see Prosser, , Libel Per Quod, 46 Va. L. Rev. 839 (1960); Henn, , Libel-by-Extrinsic Fact, 47 Cornell L.Q. 14 (1961); Eldredge, , the Spurious Rule of Libel Per Quod, 79 Harv. L. Rev. 733 (1966); Prosser, More Libel Per Quod, 79 Harv. L. Rev. 1629 (1966); Eldredge, , Variation on Libel Per Quod, 25 Vand. L. Rev. 79 (1972).Google Scholar

41 Greenleaf, S. 2 A Treatise on the Law of Evidence § 419 (2d ed. 1848).Google Scholar

42 Greenleaf, S., 1 A Treatise on the Law of Evidence § 329–30 (2d ed. 1844).Google Scholar

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44 See, e.g., Rosenberg at 122, 139.Google Scholar

45 For a discussion of the distinction between “internal” and “external” perspectives, see H.L.A. Hart, The Concept of Law 55–57 (1961); R. Dworkin, Law's Empire 13–15 (1986); A. MacIntyre, After Virtue 175–89 (1981).Google Scholar

46 One serious weakness of Protecting the Best Men is that Rosenberg offers only anecdotal evidence of actual libel litigation. He provides neither detailed narratives of particular libel cases, nor statistical evidence of exactly who was suing whom, over what kinds of issues, and with what outcomes. As a result the hard data that might have confirmed many of Rosenberg's historical interpretations are simply not available.Google Scholar

47 Kalven, The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 204.Google Scholar

48 Since truth is a complete defense to the tort of libel, civil defamation suits penalize only false communications. Although for a brief moment in 1964 Justice Brennan was willing to take the position that “honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech,” Garrison v. Louisiana, 379 US. 64, 75 (1964), the Court soon retreated from this position and explicitly held that “there is no constitutional value in false statements of fact.”Welch, Gertz V. Robert, Inc., 418 U.S. 323, 340 (1974). See St. Thompson, Amant V., 390 U.S. 727, 732 (1968).Google Scholar

49 St. Thompson, Amant V., 390 U.S. at 731. See note 6 supra.Google Scholar

50 H. Perkin, The Origins of Modern English Society 1780–1880, at 2625 (1969); L. Stone, The Crisis of the Aristocracy 21 (1965).Google Scholar

51 See Post, , The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Cal. L. Rev. 591, 699–707 (1986).CrossRefGoogle Scholar

52 3 De Libellis Famosis, 3 Coke's Reports 254, 255 (pt. v, fol. 125) (1605). As Blackstone later put it, words that “would not be actionable in the case of a common person, yet when spoken in disgrace of … high and respectable characters … amount to an atrocious injury.”Blackstone, W., 3 Commentaries on the Laws of England 123 (1768).Google Scholar

53 Hamburger, , The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan. L. Rev. 661, 735–36 (1985).Google Scholar

54 F. Holt, The Law of Libel 90 (1816).Google Scholar

55 The reputation protected by defamation law was instead most apt to be conceptualized as “a property … which must be purchased” by the efforts required to acquire a good name. James Wilson, Lectures on Law in 2 The Works of James Wilson 595 (Robert McCloskey ed. 1967).Google Scholar

56 For this reason the Jeffersonians, as Rosenberg points out, could vigorously repudiate the crime of seditious libel and at the same time accept the exaction of crushing civil damages in “compensation” for damage to the private reputation of public officials. Rosenberg at 93–96.Google Scholar

57 Post Publishing Co. v. Moloney, 50 Ohio St. 71, 89, 33 N.E. 921, 926 (1893).Google Scholar

58 New York Times Co. v. Sullivan, 376 U.S. at 268 (quoting Beauharnais v. Illinois, 343 U.S. 250, 263–64 (1952)). The metaphor is an old one. In 1818, for example, the Supreme Court of South Carolina, in discussing the problem of defamation of candidates for public office, stated that such candidates were “a species of public property.”Richardson, Mayrant V., 1 Nott & McCord 347, 350 (S.C. 1818).Google Scholar

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60 Restatement of Torts § 606 (1938).Google Scholar

61 Id. at § 607(1).Google Scholar

62 Id. at § 606.Google Scholar

63 Id. at § 599. See L. Eldredge, The Law of Defamation §§ 93–94 (1978). The Restatement elaborated the meaning of an “abuse of an occasion”: “The unreasonable exercise of the privilege is an abuse of the occasion which defeats the protection otherwise afforded. The occasion may be abused because of the publisher's lack of belief or reasonable grounds for belief in the truth of the defamatory matter; because the defamatory matter is published for some purpose other than that for which the particular privilege is given; because the publication is made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege; or because the publication includes defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged.” Restatement of Torts at 8 599, comment a.Google Scholar

64 Scripps, MacLean V., 53 Mich. 250, 18 N.W. 209, 210 (1884)(per Cooley, J.).Google Scholar

65 Higgins, Good V., 99 Kan. 315, 161 P. 673, 675 (Kan. 1916).Google Scholar

66 As the Court said four years later in St. Thompson, Amant V., 390 U.S. 727, 731–32 (1968): It may be said that [the actual malice] test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant's testimony that he published the statement in good faith and unaware of its probable falsity …. But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. Of course it was always open to the Court to adopt the line urged by Justices Black and Douglas, and to prohibit all liability for political defamation. From this perspective the actual malice test does penalize some morally unacceptable forms of political speech. But the point is that the actual boundary drawn by the test is not dictated by such moral concerns, but is rather responsive to specific and explicit First Amendment policies.Google Scholar

67 Beckley Newspapers v. Hanks Corp., 389 U.S. 81, 82 (1967).Google Scholar

68 Bose Corp. v. Consumers Union of US., 466 U.S. 485, 498–511 (1984).Google Scholar

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70 Bethel School Dist. v. Fraser, 106 S. Ct. 3159, 3164 (1986).Google Scholar

71 In New York Times a commissioner of Montgomery, Alabama, sued the New York Times over an advertisement placed in the paper by the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South.” The advertisement was factually inaccurate in certain trivial respects, and yet it was the basis for suits by five Alabama officials seeking 53 million in damages. The suits were part of a general campaign by southerners to use defamation law to suppress criticism of southern racism. See Lewis, Annals of Law: The Sullivan Case, New Yorker, Nov. 5, 1984. The Supreme Court's decision in New York Times was part of a more general northern determination to overcome such southern resistance.Google Scholar

72 See Smith, , The Constitution and Autonomy, 60 Tex. L. Rev. 175 (1982).Google Scholar

73 410 U.S. 113 (1973) (creating a constitutional right to an abortion).Google Scholar

74 403 U.S. 15 (1971) (constitutionally prohibiting a state from punishing an individual for displaying the phrase “Fuck the Draft” on his jacket).Google Scholar

75 430 U.S. 705 (1977) (constitutionally prohibiting a state from requiring a Jehovah's Witness to display the motto “Live Free or Die” on his license plate).Google Scholar

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78 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).Google Scholar

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80 Meiklejohn, A., Political Freedom: The Constitutional Power of the People 26 (1948).Google Scholar

81 Id. at 24.Google Scholar

82 Id. at 2426.Google Scholar

83 Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 771 (1985) (White, J., concurring).Google Scholar

84 See Smith, note 72 supra. Another way of putting this is that New York Times chose to exercise the instrumental option that was most consonant with the value of autonomy rather than the option that was more closely connected with the value of civility.Google Scholar

85 418 US. 323 (1974).Google Scholar

86 See Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985). Cf. Philadelphia Newspapers v. Hepps, 106 S. Ct. 1558 (1986). The Court has not clarified the relationship between the First Amendment's definition of “public concern.” and the common law definition of “public concern.” See note 60 supra.Google Scholar

87 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. at 787 (Brennan, J., dissenting).Google Scholar