Criminal Libel

The development of new doctrine. Before 1964 the Supreme Court largely avoided the dilemma between First Amendment (freedom of speech) and decency concerns. Libelous statements were simply excluded from First Amendment protection, for they "by their very utterance inflict injury or tend to incite an immediate breach of the peace" (Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572 (1942)).

In 1964, however, the Supreme Court acknowledged that civil suits for defamation could have an adverse impact on First Amendment values (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). The Court held that freedom of the press prohibited a public official from recovering tort damages for a defamatory falsehood relating to his official conduct without proof that the statement was made with "actual malice," defined as knowledge that the statement was false or as reckless disregard of whether it was false.

The Court equated libel suits by public officials with actions for seditious libel, and such actions were perceived as destructive of the public dialogue necessary for popular sovereignty. Critical speech must be protected if frank and forceful judgments are to be expressed. Accurate information is valued; consequently, truth must always be a defense from liability. The Court reasoned that although falsity has no value in a system of free expression, the difficulty and expense of proving truth, coupled with the uncertainty of the jury process, might cause critics to exercise caution at the expense of free debate. Falsehoods are protected only to avoid chilling potentially accurate expression. Intentional falsehoods, however, lack any redeeming social importance. Consequently, statements known or believed false by their utterer could give rise to liability. In a later decision, Garrison v. Louisiana, 379 U.S. 64 (1964), the Court extended to criminal libel the protections of its New York Times decision.

In 1967 the Supreme Court further expanded this doctrine by protecting the press against civil libel actions brought by prominent public figures (Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)). Although such plaintiffs were not public officials, the Justices recognized that they might be the subject of legitimate public interest or concern. Free speech included more than political expression or comment on public affairs.

Expansion of the application of the First Amendment to civil libel suits culminated in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)). The Court held that defamation actions brought by public persons (public officials and public figures) must meet the New York Times standard but that states could impose a lesser standard in actions brought by private individuals as long as at least negligence, but not necessarily actual malice, was demonstrated.

The crucial issue after Gertz is who qualifies as a public figure. That opinion suggested that the status of public figure could be established in one of two ways. First, an individual may achieve such fame and notoriety that he becomes a public figure for all purposes. Second, an individual may have injected himself or been drawn into a public controversy, thereby becoming a public figure for a limited range of issues.

Prior to Gertz the Court's emphasis was on protecting the press, as the public's guardian, from threat and limitation by the potentially stronger government and public figures. Gertz, however, recognized that the media themselves have become a vast repository of privilege and power that could be abused. Gertz, by facilitating civil suits by private figures, reserved some protection for individuals from abuses of a guardian grown too strong to disregard.

Constitutional impact on criminal libel. Although Garrison explicitly stated only that New York Times would apply to criminal libel prosecutions, there is no reason to assume that criminal defendants will not be protected at least as fully as civil defendants under Butts and Gertz. In fact, the stigma and deprivation of liberty associated with criminal prosecutions should make charges of criminal libel more subject to scrutiny under the First Amendment than are those of civil libel.

At minimum, therefore, the following should be clear: Truth, whether with good motives or otherwise, is always an absolute defense, and the burden of proving falsity is upon the prosecutor. Libelous statements concerning public officials or figures are criminally actionable only if "actual malice" on the part of the defendant can be proved. In all other cases negligence, at least, must be demonstrated.

While the decided cases all focus on media defendants, their scope would logically include nonmedia defendants. To exclude individual, but not institutional, communications from First Amendment protection would create a dangerous disequilibrium between the guarantee of freedom of speech and that of the press. Statements of the press may cause much greater damage than those of private persons because of the wider dissemination of press communications and the greater difficulty in effectively rebutting them. It is anomalous, therefore, that the press be held accountable only for negligence or malice while the private person, engaged in a casual private conversation with a single individual, be held liable for false statements regardless of fault or negligence.

Hate speech and group libel. In light of New York Times and its progeny, the continuing constitutionality of group libel laws is now unclear. Beauharnais, the 1952 decision that upheld such provisions, has been harshly criticized and has proven remarkably inert as a basis for further case law. Indeed, recent developments have only deepened the uncertainty surrounding this long-dormant decision.

Beginning in the 1980s, a few cities and an even greater number of colleges and universities considered or adopted prohibitions on speech conveying animus toward members of racial, ethnic, or religious minority groups and (in some cases) toward gays and lesbians. Civil libertarians challenged these "hate speech codes" as violations of the First Amendment. Defenders of them pointed to the approval of group libel provisions in Beauharnais, a case many thought weakened by subsequent decisions but one the Supreme Court had nevertheless refrained from ever overruling.

In R.A.V. v. St. Paul, 505 U.S. 377 (1992), the Supreme Court invalidated a city ordinance that prohibited cross burnings and like forms of racially or religiously motivated "fighting words." By proscribing only a select class of inflammatory behavior, the law in question, the Court held, impermissibly conditioned liability on the content of the message such conduct was thought to express. But while clearly intimating disapproval of "hate speech" provisions, the Court in R.A.V. again declined to overrule or limit Beauharnais; indeed, the opinion in R.A.V. cited Beauharnais approvingly for the proposition that certain "categories of expression are 'not within the area of constitutionally protected speech'" (p. 383). The constitutionality of "group libel laws," which can still be found on the books in several states, thus remains a mystery.