State Tort Actions for Libel after Gertz v Robert Welch, Inc, Lecture notes of Law

Download State Tort Actions for Libel after Gertz v Robert Welch, Inc and more Lecture notes Law in PDF only on Docsity! STATE TORT ACTIONS FOR LIBEL AFTER GERTZ v. ROBERT WELCH, INC.: IS THE BALANCE OF INTEREST LEANING IN FAVOR OF THE NEWS MEDIA? I. INTRODUCTION The United States Supreme Court recently reviewed the scope of first amendment restrictions on state tort actions for libel in Gertz v. Robert Welch, Inc.,, and held that a newspaper publishing defama- tory falsehoods concerning a private individual could not claim a constitutional privilege against liability. Further, if state law permits recovery under a standard requiring less than a showing of knowledge of falsity or of reckless disregard for truth, first amendment consider- ations require that damages be limited to compensation for actual injury. This holding drastically affects the existing common law rem- edies for an action of libel in the various states.' This note will first outline the common law remedies for libel, using Ohio law as a typical example, and placing special emphasis on culpability and damage considerations. Thereafter, decisions by the Supreme Court requiring first amendment consideration for actions in libel will be reviewed. The purpose of this note is to follow the Supreme Court's attempts to balance the state interest in protecting the reputation of private persons against the interest of the news media in protection from unconstitutional censorship. In conclusion this note will suggest that the Court's attempt to reach an equilibrium has fallen short by greatly reducing the possibility of a private person's exoneration of his own name. II. Gertz v. Robert Welch, Inc. In 1968 a Chicago policeman killed a youth and the victim's parents retained attorney Elmer Gertz to initiate civil proceedings against the police officer. In the March, 1969, issue of American Opinion, a monthly magazine published by Robert Welch, Inc. and espousing the views of the John Birch Society, there appeared an article entitled: "FRAME-UP: Richard Nuccio and the War on Po- , 418 U.S. 323 (1974). 2 Common law tort actions for libel vary in some aspects from state to state. Although the Gertz case arose in Illinois, the Ohio case law parallels Illinois decisions concerning libel actions. See, note 24 and accompanying text, infra. For purposes of this paper decisions of Ohio courts will be used to trace the development of the common law tort action of libel. 36 OHIO STATE LAW JOURNAL 697 (1975) lice." The article was an effort of the magazine to warn its readers of a nationwide conspiracy to discredit local police departments. The magazine believed that a communist-inspired conspiracy wanted to replace local police departments with a federal police force which could be used to support a communist dictatorship. In an effort to confirm this belief, the managing editor commissioned a regular con- tributor to investigate the pending suit against the accused police officer. The article stated that Gertz, as the architect of the "frame-up," had a large police file. Other statements in the article labeled the attorney a "Leninist" and a "Communist-fronter." The article named Gertz as an "official of the Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government. ' 3 Gertz sought $10,001 actual damages and $500,000 punitive dam- ages on each of two counts. The district court denied defendant's motion to dismiss for failure to state a claim upon which relief could be granted, finding that, under Illinois law, to falsely label someone a communist is libel per se.1 At trial, the managing editor of American Opinion, Scott Stanley, Jr., stated that the article's writer, Alan Stang, had contributed articles in the past and had always been accurate.5 Stanley admitted that he had not checked the accuracy of the article. The jury awarded damages of $50,000.6 The district court set aside the verdict on the grounds that recent Supreme Court cases7 granted a limited privilege under the first and fourteenth amend- ments. Since the article in the American Opinion concerned a matter of public interest, the district court determined that the recent Su- preme Court rule requires a plaintiff involved with a matter of public interest to prove actual malice.' Failing in this, the publisher of the article is entitled to immunity for his exercise of the first amendment right to inform the public. 306 F. Supp. 310 (N.D. II1. 1969). Id. The court noted that the scope of perse actions in Illinois recently have been narrowly construed. Coursey v. Greater Miles Township Publishing Corp., 82 Ill. App. 2d 76,227 N.E.2d 164 (1967); Mitchell v. Peoria Journal-Star, Inc., 76 I11. App. 2d 154, 221 N.E.2d 516 (1966). The alleged defamatory statement here was found by the court to injure the plaintiff in his trade, which is a requirement for a per se action of defamation. A discussion of the common law requirements for an action of libel follows in section three of this note. ' 322 F. Supp. 997, 999 (N.D. Il1. 1970). 6 Id. at 998. 7 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Time, Inc. v. Hill, 385 U.S. 374 (1967); New York Times v. Sullivan, 376 U.S. 254 (1964). 1 Actual malice was defined by the Supreme Court to be knowledge of falsity or reckless disregard for the truth. New York Times v. Sullivan, 376 U.S. 254, 286-88 (1964). NOTES increased deliberation and malignity of their publication, and of their tendency to provoke breaches of the public peace. 2 In a case brought by a federal district court judge against the editor of a newspaper for an article depiciting the judge as a "purse- proud aristocrat" who was "anxious to put down the Bank of the United States to promote his own pecuniary interests" the Ohio Su- preme Court held: A libel is a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent toward government, magis- trates, or individuals. It does not necessarily charge the plaintiff with a crime, for it its design be wanton and malicious ridicule, and the tendency of the publication to hold up the plaintiff to the scoffs and sneers of society; to degrade him and lessen his standing, an action may well be sustained. So, likewise, if its tendency will natu- rally excite to passion and revenge, and consequent breaches of the peace.? These early cases reflect the concern of the courts about the injury inflicted upon individual reputations by false statements. Both cases recognize the need for an action in libel to prevent injured parties from seeking self-help remedies. The common law action of libel requires the plaintiff to prove four elements. The defendant must have (1) made a statement (2) that is defamatory and (3) published the statement (i.e., made it known to third parties). The statement must also be (4) read by third parties as concerning the plaintiff (this element is also called colloquim). In Ohio a distinction has developed between an action based on words which are libelous per se and words which are libelous per quod.M For 2 Watson v. Trask, 6 Ohio 532, 533 (1834) (citations omitted). " Tappan v. Wilson, 7 Ohio 191, 193-94 (1835). 24 Bigelow v. Brumley, 138 Ohio St. 574, 593, 37 N.E.2d 584, 594 (1941). The distinction between libel perse and libelper quod is not uniform in this country. Dean Prosser, in his article Libel Per Quod, 46 VA. L. REv. 839 (1960), states that there are three current distinctions. A minority of the states (Delaware, Iowa, Louisiana, Minnesota, Mississippi, New Jersey and Texas) follow the English Rule of recognizing all libels as libelperse and therefore not requiring pleading or proof of special damages even where extrinsic proof is required to establish the defamatory meaning of the statement. A majority of the states, including Ohio, require the pleading of special damages in libel per quod actions unless the defamatory statement falls into one of four categories. If the defamatory statement (1) imputes a criminal act, (2) imputes unchastity, (3) impugns the plaintiff's trade or business, or (4) exposes the plaintiff to ridicule or contempt in his community (e.g., loathsome disease), then the defamation is treated as libel per se. The newest trend of the law is to require pleading special damages in all libel cases unless the defamation falls within one of the above four categories. Dean Prosser states that Virginia has adopted this theory and is joined by Washington. Recently Illinois has announced its intention to follow the Virginia model. Mitchell v. Peroria Journal-Star, Inc., 76 Ill. App. 2d 36 OHIO STATE LAW JOURNAL 697 (1975) words to be libelous per se they must, on their face, accuse the plain- tiff of an illegal or immoral act. 5 If the words that are the source of the action are susceptible of an innocent reading, then Ohio courts apply the rule of mitior sensus and assume the inoffensive interpreta- tion. 6 If extrinsic facts must be known to the reader to make the statement defamatory, then the action is one of libel per quod and the plaintiff must meet special pleading requirements to maintain his action. The plaintiff has the burden of pleading (1) the extrinsic facts that render the apparent innocent statement a defamatory one, (2) that the readers knew the necessary extrinsic facts, and (3) that the plaintiff suffered injury thereby.2 1 The distinction between action for libel per se and per quod can be crucial in the determination of the burdens of allegation, of proof of defamation, and of proof of damages. If the words are determined to be libelous per se, the plaintiff need neither plead nor prove special damages (i.e., damages which result from the defamation though they are not a natural or probable result and thus cannot be assumed), since general damages (i.e., those that are the natural and necessary result of the defamatory statement) will be presumed as a matter of law. In an action based on words that are determined to be libelous per quod, on the other hand, the plaintiff must prove that the article had a defamatory meaning, and to recover damages the plaintiff must plead and prove special damages.28 Malice is a necessary element of the action of libel.29 The term "malice" as used in Ohio connotes a concept of willfulness and un- 154, 221 N.E.2d 516 (1966). This article has been criticized. See Eldredge, The Spurious Rule of Libel Per Quod, 79 HARV. L. REV. 733 (1966) and Dean Prosser's reply, Prosser, More Libel Per Quod, 79 HARV. L. REV. 1629 (1966). 7 Sweeny v. The Beacon Journal Publishing Co., 66 Ohio App. 473, 35 N.E.2d 471 (1941). 28 Johnson v. Campbell, 91 Ohio App. 483, 108 N.E.2d 749 (1952). This limiting interpre- tation is followed by Illinois, John v. Tribune Co., 24 I11. 2d 437, 181 N.E.2d 105 (1962) cert. denied, 371 U.S. 877 (1962); Montana, Manley v. Harer, 73 Mont. 253, 235 P. 757 (1925); North Dakota, Ellsworth v. Martindale Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400 (1936); Oklahoma, Tulsa Tribune Co. v. Kight, 174 Okla. 359, 50 P.2d 350 (1935). 2 McCarthy v. Cincinnati Enquirer, Inc., 101 Ohio App. 297, 136 N.E.2d 393 (1956). The best example of libel per quod is the case of a newspaper which published an erroneous report that plaintiff had given birth to twins. Although the words, on their face, do not allege any impropriety on the part of the plaintiff, the extrinsic fact that some readers knew that plaintiff had been married only a month caused the publication to be libelous per quod. Morrison v. Ritchie & Co., 39 Scot. L. Rep. 432 (Ct. Sess., 1902). 11 See Isham, Libel Per Se and Libel Per Quod in Ohio, 15 OHIO ST. L.J. 303 (1954). This article discusses the problem of determining the proper test for distinguishing the two categories of libel, and the issue as to whether it is the court or the jury that should make the determina- tion. 2, Harris v. Reams, 2 Ohio Dec. Reprint 281 (C.P., Logan, 1860). NOTES lawfulness" rather than of personal animosity.31 An express or im- plied intent of the defendant to hurt the plaintiff is necessary,' 2 but as the common law considered neither mistake nor good faith to be a defense, an intent to injure is usually assumed by the courts. 3 The purpose of the court in awarding damages is to make the injured party whole from the harassment he has suffered. 34 The jury is to arrive at the amount by considering the character and standing of the plaintiff, the gravity of the libel, and any mitigating circum- stances (such as a retraction) by the defendant. 35 In either libel per se or libel per quod, punitive damages are available only if the plain- tiff can prove that the defendant acted with express malice (i.e., intent to injure36) or with recklessness. 37 It may be seen through case law that the courts of Ohio have sought to protect the individual's right to an untarnished reputation. The purpose of the common law in creating this legal right was to prevent the "breaches of the public peace" which personal libels tended to provoke. 3 1 It is important to note that the culpability of the defendant was not considered in determining liability. Rather, it was only a factor in the consideration of punitive damages. In order to protect this right of reputation, the legal system allowed general damages to compensate the plaintiff. In many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.39 In an Ohio libel action one court summarized the liability of a defen- dant by stating that, "whenever a man publishes, he publishes at his peril."" In Ohio, libeling an individual as a communist is libel per se. In a State v. Cass, 5 Ohio N.P. 381 (C.P., Lucas, 1898). at Id. n Van Derveer v. Sutphin, 5 Ohio St. 294 (1855). Wilson v. Apple, 3 Ohio 270 (1827). a' Pugh v. Starbuck, I Ohio Dec. Reprint 143 (Super. Ct. Cinti., 1845). a Rollins v. Pennock, 2 Ohio Dec. Reprint 735 (C.P. Logan, 1862). a Van Derveer v. Sutphin, 5 Ohio St. 294 (1855). Haywood v. Foster, 16 Ohio 88 (1847). The court stated that it was necessary to allow a larger award of damages against a defendant who acted with knowledge of the falsity of his statements than against the defendant who acted only negligently. To aid in this differentiation, the court held that punitive damages can be assessed against a knowing defendant but not against a merely negligent defendant. 11 Watson v. Trask, 6 Ohio 532 (1834). z' RESTATEMENT (FIRST) OF TORTS § 621, comment a (1938). 4o Petransky v. Repository Printing Co., 51 Ohio App. 306, 309,200 N.E. 647, 648 (1935). 36 OHIO STATE LAW JOURNAL 697 (1975) "[t]he imposition of liability for. . . defamation [of private citizens] does not abridge the freedom of public speech ... "I' Until New York Times Co. v. Sullivan, the law of libel was considered to be unfettered by the Constitution. The peculiar wording of the first amendment seemed to limit that amendment's protection to laws legislated by the federal congress and to legislative work only so far as new laws abridge the freedom of the press.57 Thus, the amendment was thought to permit existing restrictions on the press, including the state libel action.' Even past decisions of the Supreme Court sustained this restrictive reading of the first amendment,59 and referred to "Libelous utterances not being within the area of constitu- tionally protected speech . . .-. The Supreme Court did not have to reach the constitutional considerations to protect the New York Times from the "biased juries across the county."'" Since courts have generally supervised libel awards to prevent jury awards not "based upon a rational con- sideration of the evidence and a proper application of the law,""2 the Supreme Court reviewed the evidence and could have reversed the decision by finding that the advertisement in question did not, as a matter of law, concern the plaintiff.6 56 Id. at 301-02. " The first amendment states: 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." U.S. CONST. amend. I (1791). See Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 CORNELL L. Q. 581, 586 (1964). -" Meiklejohn, The First Amendment is an Absolute, 1961 Sup. CT. REV. 245, 263-66 (1961). "' See, e.g., Roth v. United States, 354 U.S. 476 (1957); Merin, Libel and the Supreme Court, 11 WM. & MARY L. REv. 371, 373 (1969). 11 Beauharnais v. Illinois, 343 U.S. 250, at 266 (1952). In Near v. Minnesota, 283 U.S. 697, 715 (1931), the Court said: But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our Constitution. The Court took for granted the immunity of libel actions from first amendment restrictions in the obscenity case of Roth v. United States, 354 U.S. 476, 483 (1957): In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. 61 E. THOMAs, THE LAW OF LIBEL AND SLANDER 63 (1973). 62 Reynolds v. Pegler, 123 F. Supp. 36, 39 (S.D.N.Y. 1954). " New York Times v. Sullivan, 376 U.S. 254, 278 (1964). Colloquium is one of the four necessary elements of a libel action. NOTES B. Expansion of Times Immunity to Public Figures In the Times case, the Supreme Court held that a public official cannot recover damages for false statements made concerning his official conduct unless he can prove that the publisher acted with "actual malice," i.e., knowledge of falsity or reckless disregard for the truth. This first instance of consideration by the Supreme Court of the application of the first amendment to the law of libel could be considered an extension of the common law "fair comment" rule.64 Under common law the issue would revolve around the question of whether the damaging words were an honest criticism (i.e., fair com- ment) or a negligent misstatement of fact. Under Times, both state- ments are protected. The Court's distinction between private persons and public offi- cials was based upon two premises. First, the Court felt that a public official had voluntarily put himself in the public eye and could there- fore be considered as voluntarily exposing himself to the attacks of critics. Secondly, the Court believed that a public official, unlike a private person, had access to the news media to answer his defama- tory criticism. Therefore, if a plaintiff is deemed a public official he must carry a significantly heavier burden to obtain the advantage available to private citizens of bringing a successful tort action in libel: (1) recovery for damage sustained, (2) vindication of his honor, and (3) deterrence of defamatory statements by the award of punitive damages. Immediately after the Court tendered its decision in Times two problem issues developed. What actions by individuals would classify them as public officials? Further, what actions by the publisher of the defamatory statement would defeat this new first amendment privi- lege against tort liability? In Garrison v. Louisiana,5 the Supreme Court answered the second question by limiting a plaintiff's grounds for defeating the publisher's immunity created by the Times decision. The Court held that subjective constitutional actual malice (i.e., knowing that the statements were false or having reckless disregard as to whether or not the statements were false) would defeat the constitutional immun- ity. This subjective standard severely restricts the possibility of recov- ery by a plaintiff for damages from a defendant who can successfully invoke the constitutional privilege. 11 At common law newspapers could comment freely on the act of government and govern- ment officials. This "fair comment" privilege could be defeated if the statement was malicious and tended to excite revenge. Tappan v. Wilson, 7 Ohio 191 (1835). 65 379 U.S. 64 (1964). 36 OHIO STATE LAW JOURNAL 697 (1975) With an almost unqualified privilege protecting media defen- dants, the definition of public official became critical if any plaintiffs were to have grounds to recover against the media. In a series of cases prior to Gertz, the Supreme Court chose to broaden the classification of persons subject to the Times first amendment immunity. In the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker,66 the court considered the issue of extending the Times immunity to articles concerned with "public figures." At the time of the alleged libel, the plaintiff Wally Butts was the athletic director of the University of Georgia, but was employed by the Geor- gia Athletic Association, a private organization.67 The Walker case concerned a retired army general's actions during the University of Mississippi's turmoil over the enrollment of James Meredith. Gen- eral Walker was a strong critic of federal intervention and the Court considered him to be a "man of some political prominence."68 In these two cases the Court was unable to formulate a majority opinion. Justices Harlan, Clark, Stewart, and Fortas joined in the plurality opinion which found that the Times requirement of actual malice need not be shown in order for the newspaper to lose its qualified immunity. These Justices found that the newspaper in the Butts case was at least grossly negligent and possibly reckless in not checking the story submitted by an unproven source. 9 The plurality opinion, on the other hand, held that the privilege is qualified but should apply with a lesser standard of culpability in a case where the plaintiff is a "public figure." The plurality opinion would apply a standard of "highly unreasonable conduct" as evidenced by "extreme departure from standards of investigation . . . adhered to by respon- sible publishers."70 Justices Brennan and White joined with Chief Justice Warren who believed that the Times doctrine should be ex- panded to include plaintiffs who are "public figures." The policy that governed the Times decision, the Justices argued, should also control 66 388 U.S. 130 (1967). 67 Although the University of Georgia is a state institution, the athletic director is hired by the Georgia Athletic Association, a private corporation. This determination was reached in a previous Supreme Court case, Allen v. Regents of the University of Georgia, 304 U.S. 439 (1938). Under state statute athletic associations are not to be considered an agency of the state. GA. CODE ANN. § 32-153 (1969). s 388 U.S. at 140. 66 Id., at 158. The plaintiff charged that the author's source was on criminal probation. The plaintiff submitted evidence showing that the magazine had a "muckraking" format and that the editors knew of the source's probation, but that the editors published the article without independent confirmation of the accusations. 351 F.2d 702 (5th Cir. 1965). 70 388 U.S. at 158. NOTES action be spared from public view.79 Since Metromedia merely reported the police action taken against Rosenbloom, Metromedia was entitled to the Times immunity. Jus- tice White believed that the Court, had "displac[ed] more state libel law than [was] necessary"8 by considering the public interest in the topic of the article rather than the status of the plaintiff. In dissent, Justice Harlan argued that Rosenblocm was a private individual and, therefore, the relevant state libel laws were applicable. Justice Harlan, however, would prohibit any state statute from im- posing liability unless it also required a minimal standard of fault.8 Justice Marshall, joined by Justice Stewart, dissented because of the inadequate protection afforded personal reputations by the expansion of the Times doctrine. Justice Marshall believed that a better balance of first amendment protection for the news media and relief for the injured private person would be to allow damages, but to restrict damage awards to actual injury. State libel laws would be applicable for determining liability but, in agreement with Justice Harlan's dis- sent, there could be no finding of liability without some standard of fault.82 The issue of limiting damage recoveries tc actual injury was considered from three different perspectives. Justice Harlan would allow punitive damages only after actual damages were proved, and furthermore, the punitive damages would have to have a "reasonable relationship" to the actual damages. Justice Marshall believed that recoveries must be limited to actual damages only to avoid self- censorship by newspapers fearful of substantial general damage awards by the jury. He felt that Justice Harlan's "reasonable rela- tionship" standard would be futile in avoiding self-censorship since the jury would not have an objective standard to apply. The plurality opinion dismissed the actual damage restrictions as an unrealistic solution to the self-censorship problem. The mere possibility of costly litigation and substantial actual damage awards would still serve to inhibit newspaper publishers. The plurality opinion emphasized that a more practical solution would be to require a culpability standard (i.e., actual malice) coupled with a higher standard of proof (e.g., clear and convincing evidence). Although Rosenbloom was decided without a majority opinion, 7 Id. at 62. I' d. at 59. I1 d. at 64. 2 d. at 86-87. 36 OHIO STATE LAW JOURNAL 697 (1975) it accurately defined the Times doctrine as it was applied by lower courts prior to the Gertz decision.3 Times was concerned with pro- tecting public debate on public issues by immunizing the news media from actions in libel by "public officials." Butts broadened this con- stitutional protection to actions brought by "public figures." Rosenbloom serves to extend the Times immunity to any acticn for libel where the defamatory statement concerns a public issue without considering the status of the plaintiff. D. The Effect of Rosenbloom on Ohio Libel Actions Soon after the Rosenbloom decision was announced by the Su- preme Court, a case involving a local newspaper as defendant in a libel action came before the Ohio courts." Plaintiff Carl A. Campbell sought damages in the amount of $350,000 for a false newspaper article that stated that Carl Campbell, 35, had been fined $157 and sentenced to six months in jail for driving while intoxicated. The article further stated that Campbell had been convicted of driving while intoxicated on four prior occasions and that Campbell was currently a teacher in the Canton school system. The following day the newspaper printed a retraction on the first page of the newspaper explaining that the convicted individual was Carl Campbell, a truck driver, not Carl A. Campbell, the school teacher. The trial court granted the defendant a summary judgment on the basis of the Times immunity. On appeal, the Ohio appellate court treated the plurality opinion of Rosenbloom as if it had commanded a majority of the Surpeme Court. 5 The majority opinion quoted at length from Rosenbloom and held that the Supreme Court required that states adopt an actual malice test for libel actions involving the news media coverage of an event of public interest. In considering whether actual malice was absent from this case, the court quoted extensively from depositions taken of the reporter of the article and the city editor of the paper. The facts disclosed that the reporter turned in the first account of the conviction of Carl 13 Lower courts are not required to follow Supreme Court decisions which are not sup- ported by a majority opinion. United States v. Pink, 315 U.S. 208 (1942). For a brief listing of lower court decisions which barred a private individual from bringing an action for libel against a member of the news media because of the public interest in the defamatory article, see Case Note, 40 GEo. WASH. L. REV. 151, 154 n. 20 (1971). " Campbell v. Mansfield Journal Co., Inc., No. 1063 (Ohio Ct. App. 5th Dist., March 1972) (unreported). 11 Judge Putnam, in the majority opinion, wrote: "Mr. Justice Brennan speaking.or the majority, in commenting upon the theory of negligence as a part of the law of libel, said. .. Id. at 8-9 (emphasis added). NOTES Campbell within half an hour of the news deadline. The city editor read the account and asked the reporter if this Carl Campbell was the same Campbell who taught in the Canton school system. The editor "thought" the reply was yes so he instructed the reporter to add that information to the article. The editor admitted that he knew Carl A. Campbell from board of education meetings and that he had not made any effort to make a more positive identification. The city editor also admitted that he did not know if the reporter knew Carl A. Campbell and that the only reason the editor had asked the re- porter if the two names were the same was the fact that the school was in the reporter's beat. The editor further stated that he had no doubt of the truth of the article or he would have done some addi- tional investigation. The reporter stated that he had no knowledge of the occupation of Carl Campbell. He said that he was not asked by the editor if Campbell was a teacher but was in fact told that the two Campbells were the same and that this information should be in- cluded in the story. The reporter also stated that he never doubted the truth of the article. The majority opinion interpreted Rosenbloom as extending the Times privilege to "include comment on private persons in matters of public interest but did not change the standard of care known as 'actual malice, that is, knowledge of falsity or a reckless disregard of whether a fact is false or not.' "8 The court found that the defen- dants had not "entertained a doubt as to the truth of the identifica- tion, much less, a 'reckless disregard as to whether it was true or false.' ",7 The court held that Rosenbloom requires the plaintiff to establish his case by "clear and convincing" proof rather than the previous state standard of a mere preponderance. In conclusion, the court ruled that to maintain an action for libel in Ohio against a member of the news media for an article concerning an event of public interest, the plaintiff must prove by a clear and convincing standard that the defendant (1) had knowledge that the stated facts were false, or (2) that the article was published with reckless disregard as to whether it was false or not. For reckless disregard "the defendant in fact [must] entertain serious doubts as to the truth of his publication." 8 In his concurring opinion, Judge Rutherford also interpreted Rosenbloom as extending the Times immunity to cases involving Id. at 23. s, Id. at 24. " St. Amant v. Thompson, 390 U.S. 727, 731 (1968). 36 OHIO STATE LAW JOURNAL 697 (1975) no longer find themselves in the difficult position of deciding what information should be of concern to the public. The breathing space was thereby contracted so as to include only public officials or fig- ures. The majority believed that a proper accommodation also re- quired a restriction on the state's ability to exact damages. Therefore, the second prong of the holding prevented the states from imposing strict liability by requiring a fault standard in all libel cases involving a member of the news media. Requiring the plaintiff to prove the defendant-news-broadcaster's fault is in accord with two of the major goals of the common law libel action: i.e., punishing a culpable defen- dant and allowing a plaintiff to vindicate his reputation. At the same time members of the news media are protected from the "rigors of strict liability for defamation,""8 thus satisfying the guarantees of the first amendment. If the majority of the court had stopped here, then all of the goals of a libel action would have been fulfilled (a culpable party would be liable to a defamed person). However, even after recognizing the compelling state interest in protecting private individ- uals from damage to their reputations, the Court placed additional restrictions on the recovery of monetary damages. In limiting liability restrictions to a fault standard, the majority stated that they were recognizing the legitimate state interest in compensating private individuals for actual damages. General or punitive damages are prohibited by first amendment considerations in the absence of proof of actual malice, which is defined as knowl- edge of falsity or reckless disregard for truth. The majority believed that this limitation on recovery was necessary to protect the media from the "largely uncontrolled discretion of juries" which may lead those juries "to punish unpopular opinion rather than to compensate individuals for injury."97 By limiting recoveries to actual damages, however, the Court ignored the fact that "in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the efforts thereof in loss to the persons defamed.""8 The Court foresaw that actual damages would not be limited to monetary loss but would have included mental anguish, humuliation and loss of community standing as actual injury. The Court con- cluded its opinion by stating that in the case at bar, Gertz could not be held to be a public figure since he did not engage in any attempt to influence public attitudes, and his participation in this public affair 98 Id. at 348. I d. at 349. " See supra note 39 and accompanying text. NOTES was limited to actions required by him as attorney for his client. The Court remanded for jury determination of fault and actual damages in line with the Court's new constitutional limitations on state libel actions. Justice Blackman stated in his concurring opinion that he joined in the majority opinion because be believed that it offered an ade- quate "breathing space" for the press, but that he would nevertheless have preferred a wider immunity afforded the news media-i.e., the Rosenbloom test of issues of public interest. Chief Justice Burger dissented because he believed that the law of libel respecting private individuals should be left to the states. He would not impose constitutional requirements for the determination of liability or damage recoveries on current state law. Further, Chief Justice Burger believed that if the Court failed to promote a public policy of protecting lawyers from defamation in their representative role, the sixth amendment right to counsel might be jeopardized. Justice Douglas dissented because he believed that the first amendment requires an absolute privilege for the news media which cannot be the subject of an "accommodation" with a state interest in protecting individuals from false statements concerning their repu- tation. Justice Douglas joined the majority in its belief that a jury's imposition of damages may inhibit the press, but his belief lead to a different result - only a complete immunity, rather than a limitation based on actual damages, could offer the protection to the press required by the first amendment. Justice Brennan, in his dissenting opinion, stated that the Court should have adopted the plurality opinion of Rosenbloom. He de- fended the Rosenbloom decision by citing the rationale of the plural- ity opinion, (i.e., that public issues do not become less so because a private persons is involved). Justice Brennan believed that the criti- cism concerning the judicial determination of the public interest of an issue was unfounded since the judiciary has broadly interpreted the scope of public interest. He concluded by stating that any self- censorship by publishers caused by the uncertainty of the public- private determination of an issue would be considerably less than the self-censorship arising from fear of liability from state actions based upon a negligence standard. Justice White, in his extensive dissent, argued that the majority had failed to demonstrate the first amendment requirements which would entail a complete rewriting of state defamation laws. He criti- cized the majoriiy opinion for its apparent inconsistency in first con- cluding that the state interest in protecting the reputations of private 36 OHIO STATE LAW JOURNAL 697 (1975) individuals surmounts first amendment considerations and then im- posing first amendment limitations on damages in private actions for libel. Justice White criticized the term "liability without fault" as being misleading at best since any falsehood, on its face, implies some degree of fault by even a good faith publisher. He also believed that the majority's fear that libel actions could create an inhibited press was not supported by the growth of newspapers in the face of existing state libel laws. Justice White reiterated the need for general damages in libel actions involving private persons and believed that adequate protections from harsh jury verdicts existed in the mechanisms of remittitur, granting of a new trial by the presiding judge, or appeal. 9 Justice White concluded by stating that he was in agreement with the holding in the Times case, but that he believed that the qualified immunity required by the first amendment should have been re- stricted to cases involving public officials or figures and that the states should be free to fashion laws protecting private individuals from defamatory attacks on their reputation. VI. THE "IMBALANCE" OF Gertz The Court's purpose in granting certiorari in the Gertz case was to reexamine the conflicting interest involved in a libel suit brought by a private person against the news media. The Court recognized that the wide acceptance of Rosenbloom as an announcement of constitutional requirements had served to severely restrict, if not to prevent altogether, a plaintiff's attempt to be recompensed for a newspaper's defamation of his reputation if the defamation con- cerned a matter of public interest. The Court in Gertz attempted an "accommodation" between the first amendment concern for a free press and the state interest in providing compensation for injured individuals. The Court's solution has two parts. First, the plaintiff, in order to recover damages in an action for libel against a newspaper, must meet a fault standard of at least negligence. This culpability reluire- ment should adequately serve to protect innocent publishers of news from unwarranted libel actions. Although this eliminates the libel per se actions in Ohio, newspapers which defame private individuals through negligent investiagation can be successfully sued for libel. If this were the only restriction on the common law action for libel, then the Court might have successfully reached an equitable balance, since injured plaintiffs could recover money damages from blameworthy 11 418 U.S. at 394 n.31.