McDonald v. Smith, 472 U.S. 479 (1985)

Author: Justice Brennan

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McDonald v. Smith, 472 U.S. 479 (1985)


New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964), held that a public official may recover damages for a false statement concerning his official conduct only where 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.

This standard, explicitly directed toward protection of "freedom of speech and of the press," id. at 264, reflects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," id. at 270.

The petitioner Robert McDonald contends that, when a citizen communicates directly with Government officials about matters of public importance here the qualifications of a candidate for United States Attorney -- the First Amendment’s Petition Clause requires courts in defamation actions to accord an absolute privilege to such communications rather than the qualified privilege defined in New York Times. I fully agree with the Court that the Petition Clause imposes no such absolute privilege.

McDonald correctly notes that the right to petition the Government requires stringent protection.

The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.

United States v. Cruikshank, 92 U.S. 542, 552 (1876). The right to petition is "among the most precious of the liberties guaranteed by the Bill of Rights," Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222 (1967), and except in the most extreme circumstances citizens cannot be punished for exercising this right "without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions," De Jonge v. Oregon, 299 U.S. 353, 364 (1937). As with the freedoms of speech and press, exercise of the right to petition "may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," and the occasionally "erroneous statement is inevitable." New York Times Co. v. Sullivan, supra, at 270-271. The First Amendment requires that we extend substantial "`breathing space’" to such expression, because a rule imposing liability whenever a statement was accidently or negligently incorrect would intolerably chill "would-be critics of official conduct . . . from voicing their criticism." 376 U.S. at 272, 279.{1}

We have not interpreted the First Amendment, however, as requiring protection of all statements concerning public officials.

Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even to topple an administration. . . . That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which

are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .

Chaplinsky v. New Hampshire, 315 U.S. 568, 572. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

McDonald argues that, for two reasons, this qualification of the right vigorously to criticize public officials should not apply to expression falling within the scope of the Petition Clause.{2} First, he contends that petitioning historically was accorded an absolute immunity and that the Framers included the Petition Clause in the First Amendment on this understanding. I agree with the Court that the evidence concerning 17th- and 18th-century British and colonial practice reveals, at most, "conflicting views of the privilege afforded expressions in petitions to government officials," ante at 483, and does not persuasively demonstrate the Framers’ intent to accord absolute immunity to petitioning.

Second, McDonald argues that criticism of public officials under the Petition Clause is functionally different from, and therefore entitled to greater protection than, criticism of officials falling within the protection of the First Amendment’s Speech and Press Clauses. Specifically, he contends that

[u]nlike the more general freedoms of speech and press, the right to petition was understood by the Framers of the Constitution and the First Amendment to be a necessary right of a self-governing people,

and that

when the citizen is not speaking to the public at large, but is directly exercising his right to petition, [he] is thus performing a self-governmental function.

Brief for Petitioner 7, 30 (emphasis added). Such a distinction is untenable. The Speech and Press Clauses, every bit as much as the Petition Clause, were included in the First Amendment to ensure the growth and preservation of democratic self-governance. A citizen who criticizes a public official is shielded by the Speech and Press Clauses because "[i]t is as much his duty to criticize as it is the official’s duty to administer." New York Times Co. v. Sullivan, 376 U.S. at 282 (emphasis added). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, supra, at 74-75.{3}

The Framers envisioned the rights of speech, press, assembly, and petitioning as interrelated components of the public’s exercise of its sovereign authority. As Representative James Madison observed during the House of Representatives’ consideration of the First Amendment:

The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiments by petition to the whole body; in all these ways they may communicate their will.

1 Annals of Cong. 738 (1789) (emphasis added).

The Court previously has emphasized the essential unity of the First Amendment’s guarantees:

It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights, . . . and therefore are united in the First Article’s assurance.

Thomas v. Collins, 323 U.S. 516, 530 (1945). And although we have not previously addressed the precise issue before us today, we have recurrently treated the right to petition similarly to, and frequently as overlapping with, the First Amendment’s other guarantees of free expression. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909-912, 915 (1982); Mine Workers v. Illinois Bar Assn., 389 U.S. at 221-222; Adderley v. Florida, 385 U.S. 39, 40-42 (1966); Edwards v. South Carolina, 372 U.S. 229, 234-235 (1963); NAACP v. Button, 371 U.S. 415, 429-431 (1963).

There is no persuasive reason for according greater or lesser protection to expression on matters of public importance depending on whether the expression consists of speaking to neighbors across the backyard fence, publishing an editorial in the local newspaper, or sending a letter to the President of the United States. It necessarily follows that expression falling within the scope of the Petition Clause, while fully protected by the actual-malice standard set forth in New York Times Co. v. Sullivan, is not shielded by an absolute privilege. I therefore join the Court’s opinion.

1. To safeguard the First Amendment’s values, "defeasance of the privilege" set forth in New York Times "is conditioned, not on mere negligence, but on reckless disregard for the truth." Garrison v. Louisiana, 379 U.S. 64, 79 (1964).

2. For purposes of applying an absolute immunity in the Petition Clause context, McDonald suggests that we need consider only those expressions that "touc[h] on" and are "relevant to" the official conduct of public servants, and that are "contained in a private petition to federal officials who [have] authority to take responsive actions." Brief for Petitioner 7, and n. 7. The Court long ago concluded, however, that the Petition Clause embraces a much broader range of communications addressed to the executive, the legislature, courts, and administrative agencies. See, e.g., Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). It also includes such activities as peaceful protest demonstrations. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909-912 (1982); Edwards v. South Carolina, 372 U.S. 229, 235 (1963). Expression falling within the Petition Clause will thus frequently also be protected by the First Amendment freedoms of speech, press, and assembly. See also Adderle v. Florida, 385 U.S. 39, 49-51 (1966) (Douglas, J., dissenting).

3. Thus the advertisement at issue in New York Times, every bit as much as the letter to President Reagan at issue here, "communicated information, expressed opinion, recited grievances, [and] protested claimed abuses" -- expression essential

"to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means."

New York Time Co. v. Sullivan, 376 U.S. at 266, 269.


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Chicago: Brennan, "Brennan, J., Concurring," McDonald v. Smith, 472 U.S. 479 (1985) in 472 U.S. 479 472 U.S. 486–472 U.S. 490. Original Sources, accessed January 20, 2019,

MLA: Brennan. "Brennan, J., Concurring." McDonald v. Smith, 472 U.S. 479 (1985), in 472 U.S. 479, pp. 472 U.S. 486–472 U.S. 490. Original Sources. 20 Jan. 2019.

Harvard: Brennan, 'Brennan, J., Concurring' in McDonald v. Smith, 472 U.S. 479 (1985). cited in 1985, 472 U.S. 479, pp.472 U.S. 486–472 U.S. 490. Original Sources, retrieved 20 January 2019, from