Rosenblatt v. Baer, 383 U.S. 75 (1966)

MR. JUSTICE STEWART, concurring.

The Constitution does not tolerate actions for libel on government. State defamation laws, therefore, whether civil or criminal, cannot constitutionally be converted into laws against seditious libel. Our decisions in the New York Times and Garrison cases turned upon that fundamental proposition.{1} What the Court says today seems to me fully consonant with those decisions, and I join the Court’s opinion and judgment.

It is a fallacy, however, to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not. As the Court says,

important social values . . . underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation.

The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.

We use misleading euphemisms when we speak of the New York Times rule as involving "uninhibited, robust, and wide-open" debate, or "vehement, caustic, and sometimes unpleasantly sharp" criticism.{2} What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth.

That rule should not be applied except where a State’s law of defamation has been unconstitutionally converted into a law of seditious libel.{3} The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars.{4} The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.

Moreover, the preventive effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950’s taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whole society.

1. New York Times Co. v. Sullivan, 376 U.S. 254; Garrison v. Louisiana, 379 U.S. 64.

2. See New York Times Co. v. Sullivan, 376 U.S. at 270.

3. This is not to say that there do not exist situations where, for other reasons, state defamation laws may be similarly limited. See Linn v. United Plant Guard Worker, ante p. 53.

4. Irving Brant has recently made the point well:

Civil actions for slander and libel developed in early ages as a substitute for the duel and a deterrent to murder. They lie within the genuine orbit of the common law, and, in the distribution of American sovereignty, they fall exclusively within the jurisdiction of the states. The First Amendment further assures their exclusion from the federal domain. The Fourteenth Amendment, by absorbing the First, unquestionably gives the Supreme Court authority to block state use of civil suits as a substitute for laws of seditious libel. But, considering the differences in derivation, in purpose, in value to society, and in the natural location of power, there seems to be no compelling constitutional reason to bar private suits. The most absolute construction of the First Amendment, as applied to the states by the Fourteenth, would permit a line to be drawn between the spurious common law of seditious libel and the genuine common law of civil liability for defamation of private character. It is the misuse of civil liability that offends the Constitution.

Brant, The Bill of Rights Its Origin and Meaning 502-503 (1965).