Constitutional Law-Libel-Plaintiff Must Meet New York Times

Constitutional Law-Libel-Plaintiff Must Meet New York Times
Standard of Proof to Recover if the Alleged Defamatory Misstatement
of Fact Concerns a Matter of Public Interest. Rosenbloom v.
Metromedia,/nc.,403 U.S. 29 (1971).
George Rosenbloom, a distributor of nudist magazines in Philadelphia, was arrested twice for alleged violation of the city's obscenity law.
Books and magazines were seized by the police in his home and his
warehouse. Rosenbloom brought suit against the city and police officials
seeking to enjoin their interference with his business; he based his action
on the allegation that his magazines were not obscene. After he had been
acquitted of criminal obscenity charges, Rosenbloom filed suit in a federal district court against Metromedia, Inco under the Pennsylvania libel
law. t He alleged that he had suffered losses from damage to his reputation and business by the news broadcasts of Metromedia's radio station
WI P which characterized his magazines as obscene 2 and mentioned him
by name at the time of his arrests. Rosenbloom claimed further that,
although he and his business associates were not named in the broadcasts
reporting his suit for injunctive relief, WI P's characterization of him and
his associates as "smut distributors" and "girlie book peddlers" was
false and defamatory. The federal district court held 3 that the knowing
or reckless falsity standard of New York Times Co. v. Sullivan 4 did not
PA. STAT. ANN. tit. 12. § 1584a (Supp. 1971) provides:
I) In an action for defamation, the plaintiff has the burden of proving, when the issue
is properly raised:
(a) The defamatory character of the communication;
(b) Its publication by the defendant;
(c) Its application to the plaintiff;
(d) The recipient's understanding of its defamatory meaning;
(e) The recipient's understanding of it as intended to be applied to the plaintiff;
(f) Special harm resulting to the plaintiff from its publication;
(g) Abuse of a conditionally privileged occasion.
2) In an action for defamation. the defendant has the burden of proving. when the issue
is properly raised:
(a) The truth of the defamatory communication;
(b) The privileged character of the occasion on which it was published;
(c) The character of the subject matter of defamatory comment as of public
2. The first two of the series of broadcasts described the literature as "obscene" but the
subsequent broadcasts corrected the wording to "allegedly obscene" or "reportedly obscene."
3. Rosenbloom v. Metromedia, Inc., 289 F. Supp. 737 (E.D. Pa. 1965).
4. 376 U.S. 254 (1964). The Supreme Court held in that case that the implementation of the
first amendment's guarantee of free discussion of the stewardship of public officials required greater
"breathing space" for the inevitable erroneous statement than that afforded by the defense of truth
or reasonable care. The allegedly defamed public official had to prove that the defamatory falsehood
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apply and that Pennsylvania law was determinative of the liability of the
defendant. The jury found for the petitioner awarding $25,000 in general
damages and $725,000 in punitive damages which was reduced by the
trial court to $250,000. The Third Circuit Court of Appeals 5 reversed
the trial court holding that the broadcasts involved matters of public
interest and that the petitioner's status as a private rather than a public
figure was not decisive in view of the need to implement the guarantees
of free and open discussion of matters of public concern under the first
amendment. The Supreme Court affirmed the reversal holding that in
order to recover, the petitioner would have had to meet the New York
Times standard by showing that the false and defamatory statements
made in the broadcasts were made by the respondent with knowledge of
their falsity or in reckless disregard of whether they were false or not.
Rosenbloom was the first case heard by the United States Supreme
Court in which the person defamed by the news media was "a private
individual who held no public office, who had not taken part in any
public controversy and who had lived an obscure private life."6 Prior to
this decision the Court had extended a conditionaF constitutional privilege to publication of false and defamatory statements regarding the
conduct of public officials 8 and activities of public figures. 9 Actual
malice 10 had to be proved by these categories of defamed persons in order
to defeat the privilege and to recover when the defamation occurred in
the course of reporting an event which was a matter of public concern.
Thus, within the Court's previous definition of the scope of the first
amendment's protection of free discussion on public issues, private indiwas published with "actual malice" which was defined as knowledge that it was false or with
reckless disregard of whether it was false or not. This is commonly known as the New York Times
5. Rosenbloom v. Metromedia, Inc., 415 F.2d 892 (3d Cir. 1969).
6. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 78 (1971).
7. The condition was defeated when the false and defamatory statement was made knowing
its falsity or in reckless disregard of whether it was false or not.
8. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). For discussion of this landmark
case and the Supreme Court's expansion of the definition of "public official," see T. EMERSON,
THE SYSTEM OF FREEDOM OF EXPRESSION 520-26 (1970) and Note, Public OjJicial and Actual
Malice Standard. 56 IOWA L. REV. 383,393-96 (1970).
9. The Supreme Court first applied the New York Times standard of actual malice to public
figures in the consolidated cases Curtis Publishing Co. v. Butts and Associated Press v. Walker,
388 U.S. 130 (1967).
10. It should be noted that actual malice is used as defined in New York Times. not as in
common law libel.
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viduals such as Rosenbloom could recover damages allowed by state
libel laws with no constitutional restriction. II
Justice Brennan, t2 in his plurality opinion, found little justification
for the Court's continued use of the plaintiff-status classification in its
determination of whether the defendant's false and defamatory statement warranted the constitutional protection of requiring the plaintiff
to prove actual malice. He pointed out that the' function of the first
amendment is to assure the free and open debate of "matters of legitimate public or general interest" and a classification of the subject matter
of the statement serves the purpose of the first amendment better than
the classification of the plaintiff.
It is clear that there has emerged from our cases decided since New
York Times the concept that the First Amendment's impact upon state
libel laws derives not so much from whether the plaintiff is a "public
official," "public figure," or "private individual," as it derives from
the question whether the allegedly defamatory publication concerns a
matter of public or general interest. . . . In that circumstance we think
the time has come forthrightly to announce that the determinant
whether the First Amendment applies to state libel actions is whether
the utterance involved concerns an issue of public or general concern . . . . 13
The community was held to have a vital interest in the proper enforcement of its criminal laws, particularly such laws as obscenity laws where
"a number of highly important values are potentially in conflict: the
public has an interest both in seeing that the criminal law is adequately
enforced and in assuring that the law is not used unconstitutionally to
suppress free expression."14 The defamatory falsehood having been
made in the reporting of an issue of legitimate public interest, the status
of Rosenbloom as a "private" or "public" figure was irrelevant.
II. The Supreme Court did. however. extend constitutional privilege to false and
nondefamatory statements made about private persons in the "false light" privacy case. Time. Inc.
v. Hill, 385 U.S. 374 (1967). The statements were held to be concerning a subject of public interest.
For recovery for invasion of privacy. it was necessary that proof be given of the publisher's knowing
the falsity of the statements or his reckless disregard of whether they were false or not.
Some lower federal courts have extended the New York Times rule to defamation cases where
the alleged injured party was a private person or institution. but the statements protected regarded
subjects of public interest. See Bon Air Hotel, Inc. v. Time. Inc.• 426 F.2d 858 (5th Cir. 1970);
Time v. McLaney. 406 F.2d 565 (5th Cir. 1969); United Medical Labs .• Inc. v. Columbia Broadcasting Sys.• lnc.• 404 F.2d 706 (9th Cir. 1968). em. denied. 394 U.S. 921 (1969).
12. Chief Justice Burger and Justice Blackmun joined Justice Brennan.
13. Rosenbloom v. Metromedia, 1nc .• 403 U.S. 29.44 (1971).
14. [d. at 43.
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Basic to the plurality's rationale for the extension of constitutional
protection to matters Of public interest was the concern that the news
media, in fear of an inability to prove the truth of their statements or
the non-negligence of their false statements, would apply a self-imposed
censorship which could deny the public information and discussion essential to its interests.
The concurring justices agreed with the plurality's opinion in its
result, but not in the extension of the standard. Justice White felt that
the statements involved activities of the police which placed it within the
"public officials" category and justified the application of the New
York Times standard. The plurality's extension of the New York Times
standard was thus unnecessary for the decision in Rosenbloom. He
viewed an extension unwise until the Court sets forth some "solid First
Amendment grounds based on experience" for an extension which nullifies much of the state libella w. 15 Justice Black restated his position 16 that
the Court should "abandon New York Times Co. v. Sullivan and adopt
the rule to the effect that the First Amendment was intended to leave
the press free from harassment of libel judgments." 17
Both dissenting opinions took issue with the plurality's resolution
of the conflict between society's interest in protecting the reputation and
dignity of the private individual from damage and its interest in a free
and unfettered press to inform the citizenry. IS Justice Harlan found the
distinction between the public and private person a valid one on the
grounds that the private person neither puts himself in the spotlight nor
normally has access to channels of communication to rebut defamatory
falsehood as does the public official or public figure. For these reasons
he felt that the defamed private individual should not have to meet the
actual malice standard, but only the standard of proof of lack of reasonable care. He viewed this common tort standard as sufficient protection
of the individual's reputation and of society's right to have free and open
discussion under the first amendment.
Justice Marshall 19 rejected the plurality decision as one which had
made a general rule impossible of general application. If the rule cannot
15. 403 U.S. at 60.
16. Justice Black's position was stated earlier in Curtis Publishing Co. v. Butts, 388 U.S.
130, 172 (1967). It should be noted that Justice Douglas and Justice Black are essentially in
agreement in this area of the law. Justice Douglas did not, however, participate in the Rosenbloom
17. 403 U.S. at 57.
18. 403 U.S. at 62, 78.
19. Justice Stewart joined in this dissent.
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be applied generally, the Court must balance on an "ad hoc" basis the
two conflicting interests and constantly supervise defamation litigation.
His solution is I) to leave the standard of care to be determined by state
libel laws in cases involving private persons and 2) to restrict damages
to actual proven damages, eliminating presumed and punitive damages.
Reducing the risk of heavy losses in damage suits would lessen the news
media's tendency to self-censorship, while giving actual damages to the
private citizen would give him proper relief for damage suffered to his
The result of Rosenbloom is that the Court has limited the protection afforded the defamed person by state libel laws to cases where the
subject matter of the statement is purely personal, or where he can give
evidence of the publisher's actual malice in making a false and defamatory statement involving a matter of public interest. It appears that even
in these kinds of cases protection remains in question, dependent in some
degree upon the breadth of the definition given by the Court to "matters
of legitimate public or general concern."
The phrase "matters of public interest" is an elusive term, and
attempts by courts and scholars to devise an all-inclusive definition have
not been satisfactory. 20 "Matters of public interest" has been the determinant for the fair comment 21 privilege in state courts, and the Court
will possibly be influenced 22 in its case by case definition of its scope by
the state courts' conclusions. The Court is concerned, however, with a
determination of the subject matter protected by the first amendment;
its guarantees, as the Court sees them, will guide its definition of matters of public interest.
Despite its preoccupation with classifying the plaintiff in order to
determine whether he had to meet the actual malice standard, the Supreme Court has identified many areas of public interest in cases since
New York Times. Underlying the "public official" and "public figure"
cases has been the supposition that the allegedly defamed persons were
involved in matters of public interest, the discussion of which is protected
by the first amendment in the absence of proven malice. In New York
Times the Court stated "that freedom of expression upon public ques20. See T. EMERSON, supra note 8, at 541-42; Pedrick, Freedom of the Press and the Law of
Libel: The Modern Revised Translation. 49 CORNELL L.Q. 581,592 (1964).
21. For a list of matters held to be of public concern see W. PROSSER, LAW OF TORTS 82223 (4th ed. 1971).
22. It is worth noting that the New York Times Court cited the fair comment case Coleman
v. Mac Lennon, 78 Kan. 711. 98 P. 281 (1908) in justifying its holding.
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tions is secured by the First Amendment"23 and proceeded to indicate
some of the subject matter protected by the first amendment by quoting
Coleman v. MacLennon.
The correct rule, whatever it is, must govern in cases other than those
involving candidates for office. It must apply to all officers and agents
of government, municipal, state and national; to the management of
all public institutions; education, charitable, and penal; to the conduct
of corporate enterprises affected with the public interest, transportation, banking, insurance; and to innumerable other subjects involving
the public welfare. 24
The New York Times decision, even though it did not define matters of
public interest, identified two major categories of subject matters
shielded by the first amendment: (I) discussion of the official conduct
of public officials which by implication and expansion in later cases 25
included all matters of government action and public affairs as well as
politics; and (2) discussion of subjects affected with the public interest
and welfare. 26 The second category is the more difficult one to define.
The Court has held that matters of public interest included "an alleged
'fix' of a football game,"27 events surrounding the enforcement of a
court decree ordering the enrollment of a Negro at the University of
Mississippi,28 the opening of a play the subject of which was linked to a
real incident 29 alleged criminal activity,30 and activities of protest in the
civil rights movement. 31 Justice White, concurring in Rosenbloom,
interpreted matters of public inerest to include "health and environmental hazards of widely used manufactured products, the mental and emotional stability of executives of business establishments, and the racial
and religious prejudices of many groups and individuals. "32
23. 376 U.S. 254, 269 (1964).
24. 78 Kan. 7\ I, 734-35,98 P. 281, 289 (1908).
25. See Monitor Patriot Co. v. Roy, 401 U.s. 265 (1971) (politics). Pickering v. Board of
Educ.. 391 U.S. 75 (1970) (activities of the school board). Rosenblatt v. Baer. 383 U.S. 75 (1965)
(management of a county recreation area).
26. The Coleman quote emphasizes the public welfare aspect of the public's interest which
usually concerns such areas as the health, safety and morals of the community. W. PROSSER. supra
note 2\, defines matters of public interest as those "which are of legitimate concern to the community as a whole because they materially affect the interests of all of the community."
27. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
28. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). The reference is to the consolidated
case Associated Press v. Walker.
29. Time, Inc. v. Hill, 385 U.S. 374 (1967).
30. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).
31. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
32. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 59 (1971)
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Some lower federal courts, prior to Rosenbloom, interpreted New
York Times as protecting discussion of matters of public interest irrespective of the status of the plaintiff. In arriving at their conclusion that
the subject matter was of public interest, the courts often referred to the
purpose served by the dissemination of information on the subject. A
frequently cited statement is from Thornhill v. Alabama: "Freedom of
discussion, if it would fulfill its historic function in this nation, must
embrace all issues about which informaion is needed or appropriate to
enable the members of society to cope with the exigencies of their period."33 This statement has been interpreted as viewing the constitutional
system as one of self government where the people have reserved to
themselves the power to oversee the functioning of their society. This has
led some scholars 34 to conclude that a matter of public' interest or concern is one on which the people will have to make a judgment or form
an opinion.
Basic to this conclusion is the concept that certain matters affect a
large segment if not all of the community, and that the public, if informed, will exercise their duty and their right to effect change through
their activities at the polls or through public opinion. 35 The importance
of an informed public opinion was noted in Cerrito v. Time, Inc. 36 An
article in Life magazine identified Cerrito as head of the Cosa Nostra
"family" in San Jose. The court held that the New York Times
standard applied because organized crime is an area of public interest.
The court quoted the President's Commission on Law Enforcement and
Administration of Justice 37 in its finding "that any effective attack upon
organized crime in this country must have sustained public support.
Experience has shown that public awareness of the nature and extent of
the problem results in public pressure to get rid of it."3s
Another group of cases indicate that there are matters of public
interest because information is necessary for the protection of an individual's physical and economic well being. The Ninth Circuit denied
33. 310 u.s. 88,102 (1940).
34. Pedick, supra note 20, at 592; Note, Public OJJicial and Actual Malice Standard. 56
IOWA L. REV. 383,400 (1970).
35. The opinion in Thornhill v. Alabama, 310 U.S. 88, 103 (1940) stated that "discussion of the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to
shape the destiny of modern industrial society . . . [and] essential to the securing of an
informed and educated public opinion with respect to a matter which is of public
36. 302 F. Supp. 1071 (N.D. Cal. 1969).
38. Cerrito v. Time, Inc., 302 F. Supp. 1071, 1073 n.2. (N.D. Cal. 1969).
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recovery to United Medical Laboratories 39 in its suit against Columbia
Broadcasting System for its allegedly false statements regarding the
inaccuracies of tests made by mail order laboratories. They were required to meet the New York Times standard of actual malice by the
publisher in his discussion of "conditions allegedly capable of widespreadedly affecting public health" which are "inherently subject to the
right of public information and discussion. "40 The Fifth Circuit likewise
applied the New York Times standard in its denial of recovery to Bon
Air Hotel in the hotel's libel suit against Time, Inc. 41 A Sports Illustrated article concerning the Masters Golf Tournament and the accommodations available described the hotel's "decline into dishevelment."
In concluding that the condition of the hotel was a matter of public
interest, the court pointed to the interest of thousands of spectators in
the tournament and the Bon Air Hotel's prominence in the tournament
scene. The rationale of these cases is that free discussion is essential not
only for the development of an informed public opinion which is necessary to effect social and political change, but also that certain information is necessary for the individual citizen to protect himself in making
daily decisions regarding his health and economics. There is little reason
to doubt that the Supreme Court will extend constitutional protection
to discussion of information in these areas.
The more difficult question is whether the Supreme Court's concept
of "matters of public interest" extends beyond those identified in
previous defamatory misstatements of fact cases to include matters
which have public interest only as news, or matters which the press
thinks the public is interested in out of curiosity.
Support exists for the view that the scope of first amendment protection of defamatory misstatements of fact may eventually include matters which are only newsworthy.42 First, language in Rosenbloom
39. United Medical Labs., Inc. v. Columbia Broadcasting Sys., Inc., 404 F.2d 706 (9th Cir.
1968), cert. denied. 394 U.S. 921 (1969).
40. [d. at 711-12. For another recent case applying the New York Times standard to a public
health issue, see All Diet Food Distribs., Inc. v. Time, Inc., 56 Misc. 2d 821, 290 N. Y.S.2d 445
(Sup. Ct. 1967).
41. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).
42. The newsworthiness of the matter published is not a condition for the privilege in common
law defamation cases, but it is in the invasion of right of privacy cases. Courts have difficulty
defining "news" and "newsworthiness" in right of privacy cases. Included within the definitions
given have been matters of public interest and matters of popular interest. The lack of clear
guidelines for the matters of public interest standard and the newsworthiness standard raises the
question whether the privileges of libel and right of privacy torts will blend under the first amendment. For discussion of the problems in defining news and newsworthiness see Comment, The Right
of Privacy: Normative-Descriptive Confusion in the Defense of Newsworthiness. 30 U. CHI. L. REV.
722 (1963).
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suggests that some justices may be including that which is newsworthy
within the matters of public interest concept. Justice Marshall's comment that "assuming . . . courts are not simply to take a poll to determine whether a substantial portion of the population is interested or
concerned in a subject"43 infers a standard of reader interest. Justice
Harlan made a plea for a rule of sufficient predictability"to avoid subjecting the press to judicial sa:ond-guessing of the newsworthiness of
each item they print."H Secondly, the Court's opinion in Time, Inc. v.'
HilI45 has raised the question whether newsworthiness is within the
"ambit of constitutional concern" under the first amendment in "false
light" privacy cases. 46 If it is, false and nondefamatory statements on
matters which are newsworthy would be constitutionally privileged.
Harry Kalven, JrY has made the following observation: "The upshot,
and it is an important one, is that the logic of New York Times and Hill
taken together grants the press some measure of constitutional protection for anything the press thinks is a matter of public interest."48
Another reason lies in the nebulous nature of the phrase itself. The
difficulty which courts may have in delineating matters of public interest
offers the potential for expansion into those matters which are usually
considered only newsworthy. This appears to be the concern of the
dissenters when they stated that "courts would be unable to identify
interests in privacy and dignity,"49 and "all human events are arguably
within the area of public and general concern."50 A commentator, who
has urged the broadening of the definition of legitimate public concern
to nearly all communication, argues that all events help to shape values
and the individual's opinion on what his environment is and should be. 51
Although the Rosenbloom decision was not unexpected, it will
nevertheless be heralded by many first amendment authorities as the
"correct" decision, and by some as the interpretation which should have
been given to New York Times. 52 The Court has finally gone to the heart
u.s. at 79. Justice Marshall's comment was in dissent.
[d. at 63.
45. 385 U.S. 374 (1967).
46. For an interesting discussion of this question see Kalven, The Reasonable Man and the
First Amendment: Hill. Butts. and Walker. \967 SUP. CT. REV. 267,278-90.
47. Professor of Law, University of Chicago, author of many articles on the first amendment.
48. Kalven, supra note 46, at 284.
49. 403U.S.at49n.17.
50. [d. at 79.
51. Meikeljohn, The First Amendment is an Absolute. 196\ SUP. CT. REV. 245, 255-56.
52. Bertelsman, Libel and Public Men. 52 A.B.A.J. 657,66\-62 (\966); Pedrick, supra note
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of the first amendment guarantee of freedom of discussion and debate
with its decision that it is the subject matter, not the status of the person
defamed, which determineswhether the New York Times standard of
actual malice applies.
That Rosenbloom is a highly significant case in what it portends
for actions in defamation is clear. The extent of the inroad by the first
amendment into the protection given by state libel laws is not clear. A
narrow, "traditional" interpretation of matters of public interest could
preserve some measure of protection. An expansion of the definition to
include that which is only newsworthy would toll the death knell for
defamation actions.
Annette Marple
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