Amendment 1 — Defamation

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

One of the most foundational cases in First Amendment jurisprudence occurred in 1964 with the Court’s decision in New York Times Co. v. Sullivan.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn1amd1 " 376 U.S. 254 (1964). ") The Times had published a paid advertisement by a civil rights organization criticizing the response of a Southern community to demonstrations led by Dr. Martin Luther King and containing several factual errors. The plaintiff, a city commissioner in charge of the police department, claimed that the advertisement had libeled him even though he was not referred to by name or title and even though several of the incidents described had occurred prior to his assumption of office. Unanimously, the Court reversed the lower court’s judgment for the plaintiff. To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be completely foreclosed by the “label” attached to something. The Court said libel could “claim no talismanic immunity from constitutional limitations,” and the standards for proving defamation must “satisfy the First Amendment .” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn2amd1 " 376 U.S. at 269. Justices Hugo Black, William O. Douglas, and Arthur Goldberg, concurring, would have held libel laws per se unconstitutional. Id. at 293, 297. ") The Court considered the case “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” [3](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn3amd1 " 376 U.S. at 269, 270. ") Because the advertisement was “an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.” [4](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn4amd1 " 376 U.S. at 271. ")

Prior interpretations had established that the First Amendment contained no exception “for any test of truth.” [5](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn5amd1 " 376 U.S. at 271. ") The Court explained that error is inevitable in any free debate, to place on the speaker the burden of proving truth would introduce self-censorship and stifle the free expression which the First Amendment protects.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn6amd1 " 376 U.S. at 271–72, 278–79. The substantial truth of an utterance is ordinarily a defense to defamation. See Masson v. New Yorker Magazine, 501 U.S. 496, 516 (1991). ") Nor would injury to official reputation afford a warrant for repressing otherwise free speech. Public officials are subject to public scrutiny and “[c]riticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputation.” [7](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn7amd1 " 376 U.S. at 272–73. ") Ultimately, the Court said the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the 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.” [8](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn8amd1 " 376 U.S. at 279–80. The same standard applies for defamation contained in petitions to the government, the Court having rejected the argument that the petition clause requires absolute immunity. McDonald v. Smith, 472 U.S. 479 (1985). ")

In the wake of the Times ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Felix Frankfurter had relied in analogy to uphold the group libel law in Beauharnais v. Illinois, discussed in a subsequent essay.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn9amd1 " Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952); . ") In neither case did the Court apply the concept of Times to void them altogether. Garrison v. Louisiana[10](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn10amd1 " 379 U.S. 64 (1964). ") held that a statute that did not incorporate the Times rule of “actual malice” was invalid, while in Ashton v. Kentucky[11](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn11amd1 " 384 U.S. 195 (1966). ") a common-law definition of criminal libel as “any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act, which, when done, is indictable” was too vague to be constitutional.

Subsequent cases elaborated which defamed individuals had to satisfy the Times rule. Explaining the definition of a “public official,” the Court said this includes “at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn12amd1 " Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). ") But the Court appeared to expand the concept of “public official” to take on overtones of anyone holding public elective or appointive office.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn13amd1 " See Rosenblatt v. Baer, 383 U.S. 75 (1966) (supervisor of a county recreation area employed by and responsible to the county commissioners may be public official within Times rule); Garrison v. Louisiana, 379 U.S. 64 (1964) (elected municipal judges); Henry v. Collins, 380 U.S. 356 (1965) (county attorney and chief of police); St. Amant v. Thompson, 390 U.S. 727 (1968) (deputy sheriff); Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6 (1970) (state legislator who was major real estate developer in area); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police captain). The categorization does not, however, include all government employees. Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979). ") Moreover, candidates for public office were subject to the Times rule and comment on their character or past conduct, public or private, insofar as it touches upon their fitness for office, is protected.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn14amd1 " Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971). ")

Thus, a wide range of reporting about both public officials and candidates was quickly held to be subject to heightened constitutional standards. While the First Amendment protects scrutiny and criticism of the conduct of official duties by public officials,[15](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn15amd1 " Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). ") the Court has also held that criticism that reflects generally upon an official’s integrity and honesty is protected.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn16amd1 " Garrison v. Louisiana, 379 U.S. 64 (1964), involved charges that judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to “racketeer influences.” The Court rejected the argument that these criticisms were not about how the judges conducted their courts but were personal attacks upon their integrity and honesty. The Court observed: “Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation . . . .The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.” Id. at 76–77. ") Candidates for public office, the Court has said, place their whole lives before the public, and it is difficult to see what criticisms could not be related to their fitness.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn17amd1 " In Monitor Patriot Co. v. Roy, 401 U.S. 265, 274–75 (1971), the Court said: “The principal activity of a candidate in our political system, his ‘office,’ so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of ‘purely private’ concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry ‘Foul’ when an opponent or an industrious reporter attempts to demonstrate the contrary. Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of reputations is the staple of election campaigns and damage to reputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may have full recourse is a question we need not decide in this case.” ")

Only three years after its Sullivan decision, the Court said the First Amendment also required a heightened standard to prove defamation of a “public figure,” which included those otherwise private individuals who have attained some prominence, either through their own efforts or because it was thrust upon them, with respect to a matter of public interest, or, in Chief Justice Earl Warren’s words, those persons who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” [18](https://www.law.cornell.edu/constitution-conan/amendment-1/defamation#fn18amd1 " Curtis Publishing Co. v. Butts, 388 U.S. 130, 164