ROSENBLOOM v.

METROMEDIA

Syllabus

ROSENBLOOM v. METROMEDIA, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 66. Argued December 7-8, 1970-Decided June 7, 1971

Respondent's radio station, which broadcast news reports every half

hour, broadcast news stories of petitioner's arrest for possession
of obscene literature and the police seizure of "obscene books,"
and stories concerning petitioner's lawsuit against certain officials
alleging that the magazines he distributed were not obscene and
seeking injunctive relief from police interference with his business.
These latter stories did not mention petitioner's name, but used
the terms "smut literature racket" and "girlie-book peddlers."
Following petitioner's acquittal of criminal obscenity charges, he
filed this diversity action in District Court seeking damages under
Pennsylvania's libel law. The jury found for petitioner and
awarded $25,000 in general damages; and $725,000 in punitive
damages, which was reduced by the court on remittitur to $250,000.
The Court of Appeals reversed, holding that the New York Times
Co. v. Sullivan, 376 U. S. 254, standard applied, and "the fact
that plaintiff was not a public figure cannot be accorded decisive
significance." Held: The judgment is affirmed. Pp. 40-62.
415 F. 2d 892, affirmed.
MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and
MR. JUSTICE BLACKMUN, concluded that the New York Times
standard of knowing or reckless falsity applies in a state civil
libel action brought by a private individual for a defamatory
falsehood uttered in a radio news broadcast about the individual's
involvement in an event of public or general interest. Pp. 40-57.
MR. JUSTICE BLACK concluded that the First Amendment pro-
tects the news media from libel judgments even when statements
are made with knowledge that they are false. P. 57.
MR. JUSTICE WHITE concluded that, in the absence of actual
malice as defined in New York Times, supra, the First Amendment
gives the news media a privilege to report and comment upon
the official actions of public servants in full detail, without sparing
from public view the reputation or privacy of an individual
involved in or affected by any official action. Pp. 59-62.

427-293 0 - 72 - 6
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

BRENNAN, J., announced the Court's judgment and delivered an

opinion in which BURGER, C. J., and BLACKMUN, J., joined. BLACK,
J., post, p. 57, and WHITE, J., post, p. 57, filed opinions concurring
in the judgment. HARLAN, J., filed a dissenting opinion, post, p. 62.
MARSHALL, J., filed a dissenting opinion in which STEWART, J.,
joined, post, p. 78. DOUGLAS, J., took no part in the consideration
or decision of this case.

Ramsey Clark argued the cause for petitioner. With

him on the brief was Benjamin Paul.
Bernard G. Segal argued the cause for respondent.
With him on the brief were Irving R. Segal, Samuel D.
Slade, and CarletonG. Eldridge, Jr.

MR. JUSTICE BRENNAN announced the judgment of

the Court and an opinion in which THE CHIEF JUSTICE
and MR. JUSTICE BLACKMUN join.
In a series of cases beginning with New York Times Co.
v. Sullivan, 376 U. S. 254 (1964), the Court has considered
the limitations upon state libel laws imposed by the
constitutional guarantees of freedom of speech and of
the press. New York Times held that in a civil libel
action by a public official against a newspaper those
guarantees required clear and convincing proof that a
defamatory falsehood alleged as libel was uttered with
"knowledge that it was false or with reckless disregard
of whether it was false or not." Id., at 280. The same
requirement was later held to apply to "public figures"
who sued in libel on the basis of alleged defamatory
falsehoods. The several cases considered since New
York Times involved actions of "public officials" or
"public figures," usually, but not always, against news-
papers or magazines.' Common to all the cases was a

ISee, e. g., Associated Press v. Walker, 388 U. S. 130 (1967)

(retired Army general against a wire service); Curtis Publishing Co.
v. Butts, 388 U. S. 130 (1967) (former football coach against pub-
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

defamatory falsehood in the report of an event of "public

or general interest." '2 The instant case presents the
question whether the New York Times' knowing-or-reck-
less-falsity standard applies in a state civil libel action
brought not by a "public official" or a "public figure" but
by a private individual for a defamatory falsehood uttered
in a news broadcast by a radio station about the in-
dividual's involvement in an event of public or general

lisher of magazine); Beckley Newspapers Corp. v. Hanks, 389 U. S.

81 (1967) (court clerk against newspaper); Greenbelt Publishing
Assn. v. Bresler, 398 U. S. 6 (1970) (state representative and real
estate developer against publisher of newspaper); Ocala Star-Banner
Co. v. Damron, 401 U. S. 295 (1971) (defeated candidate for tax
assessor against publisher of newspaper); Monitor Patriot Co. v.
Roy, 401 U. S. 265 (1971) (candidate for United States Senate
against publisher of newspaper); Time, Inc. v. Pape, 401 U. S.279
(1971) (police official against publisher of magazine). However,
Rosenblatt v. Baer, 383 U. S.75 (1966), involved an action against
a newspaper columnist by a former county recreation area super-
visor; St. Amant v. Thompson, 390 U. S.727 (1968), involved an
action of a deputy sheriff against a defeated candidate for the
United States Senate; and Linn v. Plant Guard Workers, 383 U. S.
53 (1966), involved an action by an official of an employer against
a labor union.
Garrison v. Louisiana, 379 U. S.64 (1964), held that the New
York Times standard measured also the constitutional restriction
upon state power to impose criminal sanctions for criticism of the.
official conduct of public officials. The Times standard of proof has
also been required to support the dismissal of a public school teacher
based on false statements made by the teacher in discussing issues
of public importance. Pickering v. Board of Education, 391 U. S.
563 (1968). The same test was applied to suits for invasion of
privacy based on false statements where, again, a matter of public
interest was involved. Time, Inc. v. Hill, 385 U. S.374 (1967).
The opinion in that case expressly reserved the question presented
here whether the test applied in a libel action brought by a private
individual. Id., at 391.
2 This term is from Warren & Brandeis, The Right to Privacy,
4 Harv. L. Rev. 193, 214 (1890). Our discussion of matters of "public
or general interest" appears in Part IV, infra, of this opinion.
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

interest.3 The District Court for the Eastern District

of Pennsylvania held that the New York Times standard
did not apply and that Pennsylvania law determined
respondent's liability in this diversity case, 289 F. Supp.
737 (1968). The Court of Appeals for the Third Circuit
held that the New York Times standard did apply and
reversed the judgment for damages awarded to petitioner
by the jury. 415 F. 2d 892 (1969). We granted cer-
tiorari, 397 U. S. 904 (1970). We agree with the Court
of Appeals and affirm that court's judgment.

I
In 1963, petitioner was a distributor of nudist maga-
zines in the Philadelphia metropolitan area. During the
fall of that year, in response to citizen complaints, the
Special Investigations Squad of the Philadelphia Police
Department initiated a series of enforcement actions
under the city's obscenity laws. The police, under the
command of Captain Ferguson, purchased various maga-
zines from more than 20 newsstands throughout the city.
Based upon Captain Ferguson's determination that the
magazines were obscene,' police on October 1, 1963, ar-
rested most of the newsstand operators 5 on charges of
selling obscene material. While the police were making
an arrest at one newsstand, petitioner arrived to deliver
some of his nudist magazines and was immediately ar-

3 Petitioner does not question that the First Amendment guar-

antees of freedom of speech and freedom of the press apply to
respondent's newscasts.
4At trial, Captain Ferguson testified that his definition of ob-
scenity was "anytime the private parts is showing of the female or
the private parts is shown of males."
5 Several more newsstand operators were arrested between Octo-
ber 1 and October 4.
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

rested along with the newsboy.' Three days later, on

October 4, the police obtained a warrant to search peti-
tioner's home and the rented barn he used as a warehouse,
and seized the inventory of magazines and books found
at these locations. Upon learning of the seizures, peti-
tioner, who had been released on bail after his first
arrest, surrendered to the police and was arrested for a
second time.
Following the second arrest, Captain Ferguson tele-
phoned respondent's radio station WIP and another local
radio station, a wire service, and a local newspaper to
inform them of the raid on petitioner's home and of his
arrest. WIP broadcast news reports every half hour to
the Philadelphia metropolitan area. These news pro-
grams ran either five or ten minutes and generally con-
tained from six to twenty different items that averaged
about thirty seconds each. WIP's 6 p. m. broadcast on
October 4, 1963, included the following item:
"City Cracks Down on Smut Merchants
"The Special Investigations Squad raided the home
of George Rosenbloom in the 1800 block of Vesta
Street this afternoon. Police confiscated 1,000 al-
legedly obscene books at Rosenbloom's home and
arrested him on charges of possession of obscene
literature. The Special Investigations Squad also
raided a barn in the 20 Hundred block of Welsh Road
near Bustleton Avenue and confiscated 3,000 obscene
books. Capt. Ferguson says he believes they have
hit the supply of a main distributor of obscene ma-
terial in Philadelphia."
6 The record neither confirms nor refutes petitioner's contention

that his arrest was fortuitous. Nor does the record reflect whether
or not petitioner's magazines were the subject either of the original
citizens' complaints or of the initial police purchases.
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

This report was rebroadcast in substantially the same

form at 6:30 p. m., but at 8 p. m. when the item was
broadcast for the third time, WIP corrected the third
sentence to read "reportedly obscene." News of peti-
tioner's arrest was broadcast five more times in the follow-
ing twelve hours, but each report described the seized
books as "allegedly" or "reportedly" obscene. From
October 5 to October 21, WIP broadcast no further
reports relating to petitioner.
On October 16 petitioner brought an action in Federal
District Court against various city and police officials
and against several local news media.' The suit alleged
that the magazines petitioner distributed were not ob-
scene and sought injunctive relief prohibiting further
police interference with his business as well as further
publicity of the earlier arrests. The second series of
allegedly defamatory broadcasts related to WIP's news
reports of the lawsuit. There were ten broadcasts on
October 21, two on October 25, and one on November 1.
None mentioned petitioner by name. The first at
6:30 a. m. on October 21 was pretty much like those that
followed:
"Federal District Judge Lord, will hear arguments
today from two publishers and a distributor all
seeking an injunction against Philadelphia Police
Commissioner Howard Leary . . . District Attorney
James C. Crumlish . . . a local television station
and a newspaper . . . ordering them to lay off the
smut literature racket.
"The girlie-book peddlers say the police crack-
7 The complaint named as defendants the publishers of two
newspapers, a television station, the city of Philadelphia, and the
district attorney, but not respondent WIP. The plaintiffs were
petitioner, the partnership qf himself and his wife which carried on
the business, and the publisher of the nudist magazines that he
distributed.
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

down and continued reference to their borderline

literature as smut or filth is hurting their business.
Judge Lord refused to issue a temporary injunction
when he was first approached. Today he'll decide
the issue. It will set a precedent . . . and if
the injunction is not granted . . . it could signal
an even more intense effort to rid the city of
pornography."
On October 27, petitioner went to WIP's studios after
hearing from a friend that the station had broadcast news
about his lawsuit. Using a lobby telephone to talk with
a part-time newscaster, petitioner inquired what stories
WIP had broadcast about him. The newscaster asked
him to be more specific about dates and times. Petitioner
then asked for the noon news broadcast on October 21,
1963, which the newscaster read to him over the phone;
it was similar to the above 6:30 a. m. broadcast. Ac-
cording to petitioner, the ensuing interchange was brief.
Petitioner told the newscaster that his magazines were
"found to be completely legal and legitimate by the
United States Supreme Court." When the newscaster
replied the district attorney had said the magazines were
obscene, petitioner countered that he had a public state-
ment of the district attorney declaring the magazines
legal. At that point, petitioner testified, "the telephone
conversation was terminated . . . He just hung up."
Petitioner apparently made no request for a retraction or
correction, and none was forthcoming. WIP's final re-
port on petitioner's lawsuit-the only one after peti-
tioner's unsatisfactory conversation at the station-oc-
curred on November 1 after the station had checked the
story with the judge involved.'
s The text of the final broadcast read as follows:
"U. S. District Judge John Lord told WIP News just beforc a r-
time that it may be another week before he will be able to render a
 OCTOBER TERM, 1970

Opinion of BRnNNAN, J. 403 U. S.

II
In May 1964 a jury acquitted petitioner in state court
of the criminal obscenity charges under instructions of
the trial judge that, as a matter of law, the nudist maga-
zines distributed by petitioner were not obscene. Fol-
lowing his acquittal, petitioner filed this diversity action
in District Court seeking damages under Pennsylvania's
libel law. Petitioner alleged that WIP's unqualified
characterization of the books seized as "obscene" in the
6 and 6:30 p. m. broadcasts of October 4, describing his
arrest, constituted libel per se and was proved false by
petitioner's subsequent acquittal. In addition, he alleged
that the broadcasts in the second series describing his
court suit for injunctive relief were also false and de-
famatory in that WIP characterized petitioner and his
business associates as "smut distributors" and "girlie-book
peddlers" and, further, falsely characterized the suit as
an attempt to force the defendants "to lay off the smut
literature racket."
At the trial WIP's defenses were truth and privilege.
WIP's news director testified that his eight-man staff of
reporters prepared their own newscasts and broadcast
their material themselves, and that material for the news
programs usually came either from the wire services or
from telephone tips. None of the writers or broadcasters
involved in preparing the broadcasts in this case testified.
The news director's recollection was that the primary
source of information for the first series of broadcasts
decision as to whether he has jurisdiction in the case of two pub-
lishers and a distributor who wish to restrain the D. A.'s office,
the police chief, a TV station and the Bulletin for either making
alleged raids of their publications, considered smut and immoral
literature by the defendants named, or publicizing that they are
in that category. Judge Lord then will be in a position to rule on
injunction proceedings asked by the publishers and distributor
claiming the loss of business in their operations."
 ROSENBLOOM v. METROMEDIA

29 Opinion of BPRNNAN, J.

about petitioner's arrest was Captain Ferguson, but that,

to the director's knowledge, the station did not have any
further verification. Captain Ferguson testified that he
had informed WIP and other media of the police action
and that WIP had accurately broadcast what he told the
station. The evidence regarding WIP's investigation of
petitioner's lawsuit in the second series of broadcasts
was even more sparse. The news director testified that
he was "sure we would check with the District Attorney's
office also and with the Police Department," but "it
would be difficult for me to specifically state what addi-
tional corroboration we had." In general, he testified
that WIP's half-hour deadlines required it to rely on
wire-service copy and oral reports from previously re-
liable sources subject to the general policy that "we will
contact as many sources as we possibly can on any kind
of a story."
III
Pennsylvania's libel law tracks almost precisely the
Restatement (First) of Torts provisions on the subject.
Pennsylvania holds actionable any unprivileged "mali-
cious" ' publication of matter which tends to harm a per-
son's reputation and expose him to public hatred, con-
tempt, or ridicule. Schnabel v. Meredith, 378 Pa. 609,
107 A. 2d 860 (1954); Restatement of Torts §§ 558, 559
(1938). Pennsylvania law recognizes truth as a com-
plete defense to a libel action. Schonek v. WJAC, Inc.,
436 Pa. 78, 84, 258 A. 2d 504, 507 (1969); Restatement
of Torts § 582. It recognizes an absolute immunity for
defamatory statements made by high state officials, even
if published with an improper motive, actual malice, or
knowing falsity. Montgomery v. Philadelphia,392 Pa.
178, 140 A. 2d 100 (1958); Restatement of Torts § 591,
9 The reference here, of course, is to common-law "malice," not
to the constitutional standard of New York Times Co. v. Sullivan,
supra. See n. 18, infra.
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

and it recognizes a conditional privilege for news media

to report judicial, administrative, or legislative proceed-
ings if the account is fair and accurate, and not pub-
lished solely for the purpose of causing harm to the
person defamed, even though the official information
is false or inaccurate. Sciandra v. Lynett, 409 Pa.
595, 600-601, 187 A. 2d 586, 588-589 (1963); Re-
statement of Torts § 611. The conditional privilege
of the news media may be defeated, however, by "'want
of reasonable care and diligence to ascertain the truth,
before giving currency to an untrue communication.' The
failure to employ such 'reasonable care and diligence' can
destroy a privilege which otherwise would protect the
utterer of the communication." Purcell v. Westinghouse
Broadcasting Co., 411 Pa. 167, 179, 191 A. 2d 662, 668
(1963). Pennsylvania has also enacted verbatim the
Restatement's provisions on burden of proof, which place
the burden of proof for the affirmative defenses of truth
°
and privilege upon the defendant.

10 Pa. Stat. Ann., Tit. 12, § 1584a (Supp. 1971) provides:

"(1) 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 concern."
See Restatement of Torts § 613.
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRSNNAN, J.

At the close of the evidence, the District Court denied

respondent's motion for a directed verdict and charged
the jury, in conformity with Pennsylvania law, that four
findings were necessary to return a verdict for petitioner:
(1) that one or more of the broadcasts were defamatory;
(2) that a reasonable listener would conclude that the
defamatory statement referred to petitioner; (3) that
WIP had forfeited its privilege to report official proceed-
ings fairly and accurately, either because it intended to
injure the plaintiff personally or because it exercised the
privilege unreasonably and without reasonable care; and
(4) that the reporting was false. The jury was in-
structed that petitioner had the burden of proof on the
first three issues, but that respondent had the burden
of proving that the reporting was true. The jury was
further instructed that "as a matter of law" petitioner
was not entitled to actual damages claimed for loss of
business "not because it wouldn't ordinarily be but
because there has been evidence that this same subject
matter was the subject" of broadcasts over other tele-
vision and radio stations and of newspaper reports, "so
if there was any business lost . . . we have no proof . . .
that [it] resulted directly from the broadcasts by
WIP . . . ." App. 331a. On the question of punitive
damages, the judge gave the following instruction:
"[I] f you find that this publication arose from a bad
motive or malice toward the plaintiff, or if you find
that it was published with reckless indifference to
the truth, if you find that it was not true, you would
be entitled to award punitive damages, and punitive
damages are awarded as a deterrent from future
conduct of the same sort.
"They really are awarded only for outrageous con-
duct, as I have said, with a bad motive or with reck-
less disregard of the interests of others, and before
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

you would award punitive damages you must find

that these broadcasts were published with a bad
motive or with reckless disregard of the rights of
others, or reckless indifference to the rights of
others ...."
The jury returned a verdict for petitioner and awarded
$25,000 in general damages, and $725,000 in punitive
damages. The District Court reduced the punitive dam-
ages award to $250,000 on remittitur, but denied re-
spondent's motion for judgment n. o. v. In reversing,
the Court of Appeals emphasized that the broadcasts
concerned matters of public interest and that they in-
volved "hot news" prepared under deadline pressure.
The Court of Appeals concluded that "the fact that
plaintiff was not a public figure cannot be accorded
decisive importance if the recognized important guaran-
tees of the First Amendment are to be adequately imple-
mented." 415 F. 2d, at 896. For that reason, the court
held that the New York Times standard applied and,
further, directed that judgment be entered for respond-
ent, holding that, as a matter of law, petitioner's evidence
did not meet that standard.

IV
Petitioner concedes that the police campaign to en-
force the obscenity laws was an issue of public interest,
and, therefore, that the constitutional guarantees for
freedom of speech and press imposed limits upon Penn-
sylvania's power to apply its libel laws to compel re-
spondent to compensate him in damages for the alleged
defamatory falsehoods broadcast about his involvement.
As noted, the narrow question he raises is whether, be-
cause he is not a "public official" or a "public figure" but a
private individual, those limits required that he prove
that the falsehoods resulted from a failure of respondent
to exercise reasonable care, or required that he prove that
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

the falsehoods were broadcast with knowledge of their

falsity or with reckless disregard of whether they were
false or not. That question must be answered against the
background of the functions of the constitutional guar-
antees for freedom of expression. Rosenblatt v. Baer,
383 U. S. 75, at 84-85, n. 10 (1966).
Self-governance in the United States presupposes
far more than knowledge and debate about the strictly
official activities of various levels of government. The
commitment of the country to the institution of private
property, protected by the Due Process and Just Com-
pensation Clauses in the Constitution, places in private
hands vast areas of economic and social power that
vitally affect the nature and quality of life in the Nation.
Our efforts to live and work together in a free society
not completely dominated by governmental regulation
necessarily encompass far more than politics in a narrow
sense. "The guarantees for speech and press are not the
preserve of political expression or comment upon public
affairs." Time, Inc. v. Hill, 385 U. S. 374, 388 (1967).
"Freedom of discussion, if it would fulfill its historic func-
tion in this nation, must embrace all issues about
which information is needed or appropriate to enable the
members of society to cope with the exigencies of their
period." Thornhill v. Alabama, 310 U. S.88, 102 (1940).
Although the limitations upon civil libel actions, first
held in New York Times to be required by the First
Amendment, were applied in that case in the context of
defamatory falsehoods about the official conduct of a
public official, later decisions have disclosed the artificial-
ity, in terms of the public's interest, of a simple distinc-
tion between "public" and "private" individuals or
institutions:
"Increasingly in this country, the distinctions
between governmental and private sectors are
blurred. . . . In many situations, policy determina-
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

tions which traditionally were channeled through

formal political institutions are now originated and
implemented through a complex array of boards,
committees, commissions, corporations, and associa-
tions, some only loosely connected with the Govern-
ment. This blending of positions and power has
also occurred in the case of individuals so that many
who do not hold public office at the moment are
nevertheless intimately involved in the resolution
of important public questions ....
t* Our citizenry has a legitimate and sub-
stantial interest in the conduct of such persons, and
freedom of the press to engage in uninhibited debate
about their involvement in public issues and events
is as crucial as it is in the case of 'public officials.' "
Curtis Publishing Co. v. Butts, 388 U. S. 130, 163-
164 (1967) (Warren, C. J., concurring in result).
Moreover, the constitutional protection was not in-
tended to be limited to matters bearing broadly on issues
of responsible government. "[T]he Founders . . . felt
that a free press would advance 'truth, science, morality,
and arts in general' as well as responsible government."
Id., at 147 (opinion of HARLAN, J.). Comments in other
cases reiterate this judgment that the First Amendment
extends to myriad matters of public interest. In Time,
Inc. v. Hill, supra, we had "no doubt that the ...opening
of a new play linked to an actual incident, is a matter of
public interest," 385 U. S., at 388, which was entitled
to constitutional protection. Butts held that an alleged
"fix" of a college football game was a public issue.
Associated Press v. Walker, 388 U. S. 130 (1967), a com-
panion case to Butts, established that the public had a
similar interest in the events and personalities involved
in federal efforts to enforce a court decree ordering the
enrollment of a Negro student in the University of Mis-
sissippi. Thus, these cases underscore the vitality, as
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

well as the scope, of the "profound national commitment

to the principle that debate on public issues should be
uninhibited, robust, and wide-open." New York Times
Co. v. Sullivan, 376 U. S., at 270-271 (emphasis added).
If a matter is a subject of public or general interest,
it cannot suddenly become less so merely because a
private individual is involved, or because in some sense
the individual did not "voluntarily" choose to become
involved. The public's primary interest is in the event;
the public focus is on the conduct of the participant and
the content, effect, and significance of the conduct, not
the participant's prior anonymity or notoriety. 1 The
present case illustrates the point. The community has a
vital interest in the proper enforcement of its criminal
laws, particularly in an area such as obscenity 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. Whether the person involved is a
famous large-scale magazine distributor or a "private"
businessman running a corner newsstand has no relevance
in ascertaining whether the public has an interest in
the issue. We honor the commitment to robust debate
on public issues, which is embodied in the First Amend-
" For example, the public's interest in the provocative speech
that was made during the tense episode on the campus of the
University of Mississippi would certainly have been the same. in
Associated Press v. Walker, n. 1, supra, if the speaker had been an
anonymous student and not a well-known retired Army general.
Walker also illustrates another anomaly of focusing analysis on the
public "figure" or public "official" status of the individual involved.
General Walker's fame stemmed from events completely unconnected
with the episode in Mississippi. It seems particularly unsatisfactory
to determine the extent of First Amendment protection on the
basis of factors completely unrelated to the newsworthy events being
reported. See also Greenbelt Publishing Assn. v. Bresler, 398 U. S. 6
(1970).
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

ment, by extending constitutional protection to all dis-

cussion and communication involving matters of public
or general concern, without regard to whether the persons
12
involved are famous or anonymous.
Our Brother WHITE agrees that the protection afforded
by the First Amendment depends upon whether the issue
involved in the publication is an issue of public or gen-
eral concern. He would, however, confine our holding
to the situation raised by the facts in this case, that is,
limit it to issues involving "official actions of public
servants." In our view that might be misleading. It
is clear that there has emerged from our cases decided
since New York Times the concept that the First Amend-
ment'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. See
T. Emerson, The System of Freedom of Expression 531-
532, 540 (1970). In that circumstance we think the time
has come forthrightly to announce that the determinant
whether the First Amendment applies to state libel ac-
tions is whether the utterance involved concerns an
issue of public or general concern, albeit leaving the

12 We are not to be understood as implying that no area of a

person's activities falls outside the area of public or general interest.

We expressly leave open the question of what constitutional standard
of proof, if any, controls the enforcement of state libel laws for
defamatory falsehoods published or broadcast by news media about
a person's activities not within the area of public or general interest.
We also intimate no view on the extent of constitutional protec-
tion, if any, for purely commercial communications made in the
course of business. See Valentine v. Chrestensen, 316 U. S. 52
(1942). Compare Breard v. Alexandria, 341 U. S. 622 (1951), with
Martin v. Struthers, 319 U. S. 141 (1943). But see New York
Times Co. v. Sullivan, 376 U. S., at 265-266; Linn v. Plant Guard
Workers, 383 U. S.53 (1966).
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

delineation of the reach of that term to future cases.

As our Brother WHITE observes, that is not a problem
in this case, since police arrest of a person for distributing
allegedly obscene magazines clearly constitutes an issue
of public or general interest."3
V
We turn then to the question to be decided. Peti-
tioner's argument that the Constitution should be held
to require that the private individual prove only that
the publisher failed to exercise "reasonable care" in pub-
lishing defamatory falsehoods proceeds along two lines.
First, he argues that the private individual, unlike the
public figure, does not have access to the media to
counter the defamatory material and that the private
individual, unlike the public figure, has not assumed
the risk of defamation by thrusting himself into the
public arena. Second, petitioner focuses on the im-
portant values served by the law of defamation in pre-
venting and redressing attacks upon reputation.
We have recognized the force of petitioner's argu-
ments, Time, Inc. v. Hill, supra, at 391, and we adhere
to the caution expressed in that case against "blind
application" of the New York Times standard. Id., at
390. Analysis of the particular factors involved, how-
ever, convinces us that petitioner's arguments cannot
be reconciled with the purposes of the First Amendment,
with our cases, and with the traditional doctrines of
libel law itself. Drawing a distinction between "public"
13 Our Brother WHITE states in his opinion: "[T]he First Amend-
ment gives . . . a privilege to report . . . the official actions of pub-
lic servants in full detail, with no requirement that . . . the privacy
of an individual involved in . . . the official action be spared from
public view." Post, at 62. This seems very broad. It implies
a privilege to report, for example, such confidential records as those
of juvenile court proceedings.

427-293 0 - 72 - 7
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

and "private" figures makes no sense in terms of the

First Amendment guarantees.14 The New York Times
standard was applied to libel of a public official or public
figure to give effect to the Amendment's function to
encourage ventilation of public issues, not because the
public official has any less interest in protecting his
reputation than an individual in private life. While the
argument that public figures need less protection because
they can command media attention to counter criticism
may be true for some very prominent people, even then
it is the rare case where the denial overtakes the original
charge. Denials, retractions, and corrections are not
"hot" news, and rarely receive the prominence of the
original story. When the public official or public figure
is a minor functionary, or has left the position that
put him in the public eye, see Rosenblatt v. Baer, supra,
the argument loses all of its force. In the vast majority
of libels involving public officials or public figures, the
ability to respond through the media will depend on the
same complex factor on which the ability of a private
individual depends: the unpredictable event of the
media's continuing interest in the story. Thus the un-
proved, and highly improbable, generalization that an as
yet undefined class of "public figures" involved in mat-
ters of public concern will be better able to respond
14 See United Medical Laboratories,Inc. v. Columbia Broadcasting
System, Inc., 404 F. 2d 706 (CA9 1968), cert. denied, 394 U. S. 921
(1969); Time, Inc. v. McLaney, 406 F. 2d 565 (CA5), cert. denied,
395 U. S. 922 (1969); Bon Air Hotel, Inc. v. Time, Inc., 426 F. 2d
858, 861 n. 4, and cases cited therein (CA5 1970). See generally
Cohen, A New Niche for the Fault Principle: A Forthcoming News-
worthiness Privilege in Libel Cases?, 18 U. C. L. A. L. Rev. 371
(1970); Kalven, The Reasonable Man and the First Amendment:
Hill, Butts, and Walker, 1967 Sup. Ct. Rev. 267; Note, Public
Official and Actual Malice Standards: The Evolution of New York
Times Co. v. Sullivan, 56 Iowa L. Rev. 393, 398-400 (1970); Note,
The Scope of First Amendment Protection for Good-Faith Defama-
tory Error, 75 Yale L. J. 642 (1966).
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

through the media than private individuals also involved

in such matters seems too insubstantial a reed on which
to rest a constitutional distinction. Furthermore, in
First Amendment terms, the cure seems far worse than
the disease. If the States fear that private citizens
will not be able to respond adequately to publicity in-
volving them, the solution lies in the direction of ensuring
their ability to respond, rather than in stifling public
discussion of matters of public concern.1 5
Further reflection over the years since New York
Times was decided persuades us that the view of the
"public official" or "public figure" as assuming the risk
of defamation by voluntarily thrusting himself into the
public eye bears little relationship either to the values
protected by the First Amendment or to the nature of
our society. We have recognized that "[e]xposure of
the self to others in varying degrees is a concomitant
of life in a civilized community." Time, Inc. v. Hill,

15 Some States have adopted retraction statutes or right-of-reply

statutes. See Donnelly, The Right of Reply: An Alternative to an
Action for Libel, 34 Va. L. Rev. 867 (1948); Note, Vindication of
the Reputation of a Public Official, 80 Harv. L. Rev. 1730 (1967).
Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969).
One writer, in arguing that the First Amendment itself should
be read to guarantee a right of access to the media not limited to a
right to respond to defamatory falsehoods, has suggested several
ways the law might encourage public discussion. Barron, Access
to the Press-A New First Amendment Right, 80 Harv. L. Rev.
1641, 1666-1678 (1967). It is important to recognize that the
private individual often desires press exposure either for himself,
his ideas, or his causes. Constitutional adjudication must take into
account the individual's interest in access to the press as well as
the individual's interest in preserving his reputation, even though
libel actions by their nature encourage a narrow view of the
individual's interest since they focus only on situations where the
individual has been harmed by undesired press attention. A con-
stitutional rule that deters the press from covering the ideas
or activities of the private individual thus conceives the individual's
interest too narrowly.
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

supra, at 388. Voluntarily or not, we are all "public"

men to some degree. Conversely, some aspects of
the lives of even the most public men fall outside
the area of matters of public or general concern. See
n. 12, supra; Griswold v. Connecticut, 381 U. S. 479
(1965).16 Thus, the idea that certain "public" figures
have voluntarily exposed their entire lives to public in-
spection, while private individuals have kept theirs care-
fully shrouded from public view is, at best, a legal fiction.
In any event, such a distinction could easily produce
the paradoxical result of dampening discussion of issues
of public or general concern because they happen to
involve private citizens while extending constitutional
encouragement to discussion of aspects of the lives of
"public figures" that are not in the area of public or
general concern.
General references to the values protected by the law
of libel conceal important distinctions. Traditional argu-
ments suggest that libel law protects two separate
interests of the individual: first, his desire to preserve
a certain privacy around his personality from unwar-
ranted intrusion, and, second, a desire to preserve his
public good name and reputation. See Rosenblatt v.
Baer, 383 U. S., at 92 (STEWART, J., concurring). The
individual's interest in privacy-in preventing unwar-
ranted intrusion upon the private aspects of his life-
is not involved in this case, or even in the class of cases
under consideration, since, by hypothesis, the individual
is involved in matters of public or general concern." In

16 This is not the less true because the area of public concern
in the cases of candidates for public office and of elected public
officials is broad. See Monitor Patriot Co. v. Roy, 401 U. S. 265
(1971).
17 Our Brothers HARLAN and MARSHALL would not limit the appli-
cation of the First Amendment to private libels involving issues of
general or public interest. They would hold that the Amendment
covers all private libels at least where state law permits the defense
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

the present case, however, petitioner's business reputa-

tion is involved, and thus the relevant interests pro-
tected by state libel law are petitioner's public reputation
and good name.
These are important interests. Consonant with the
libel laws of most of the States, however, Pennsylvania's
libel law subordinates these interests of the individual in
a number of circumstances. Thus, high government
officials are immune from liability-absolutely privi-
leged-even if they publish defamatory material from
an improper motive, with actual malice, and with knowl-
edge of its falsity. Montgomery v. Philadelphia,392 Pa.
178, 140 A. 2d 100 (1958). This absolute privilege
attaches to judges, attorneys at law in connection with
a judicial proceeding, parties and witnesses to judicial
proceedings, Congressmen and state legislators, and high
national and state executive officials. Restatement of
Torts §§ 585-592. Moreover, a conditional privilege
allows newspapers to report the false defamatory mate-
rial originally published under the absolute privileges
listed above, if done accurately. Sciandrav. Lynett, 409
Pa. 595, 187 A. 2d 586 (1963).
Even without the presence of a specific constitutional
command, therefore, Pennsylvania libel law recognizes
that society's interest in protecting individual reputation
of truth. The Court has not yet had occasion to consider the
impact of the First Amendment on the application of state libel
laws to libels where no issue of general or public interest is involved.
See n. 1, supra. However, Griswold v. Connecticut, 381 U. S. 479
(1965), recognized a constitutional right to privacy and at least one
commentator has discussed the relation of that right to the First
Amendment. Emerson, supra, at 544-562. Since all agree that
this case involves an issue of public or general interest, we have no
occasion to discuss that relationship. See n. 12, supra. We do not,
however, share the doubts of our Brothers HARLAN and MARSHALL
that courts would be unable to identify interests in privacy and
dignity. The task may be difficult but not more so than other
tasks in this field.
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

often yields to other important social goals. In this case,

the vital needs of freedom of the press and freedom of
speech persuade us that allowing private citizens to ob-
tain damage judgments on the basis of a jury determina-
tion that a publisher probably failed to use reasonable
care would not provide adequate "breathing space" for
these great freedoms. Reasonable care is an "elusive
standard" that "would place on the press the intoler-
able burden of guessing how a jury might assess the
reasonableness of steps taken by it to verify the accuracy
of every reference to a name, picture or portrait." Time,
Inc. v. Hill, 385 U. S., at 389. Fear of guessing wrong
must inevitably cause self-censorship and thus create the
danger that the legitimate utterance will be deterred.
Cf. Speiser v. Randall, 357 U. S. 513, 526 (1958).
Moreover, we ordinarily decide civil litigation by the
preponderance of the evidence. Indeed, the judge in-
structed the jury to decide the present case by that
standard. In the normal civil suit where this standard
is employed, "we view it as no more serious in general
for there to be an erroneous verdict in the defendant's
favor than for there to be an erroneous verdict in the
plaintiff's favor." In re Winship, 397 U. S. 358, 371
(1970) (HARLAN, J., concurring). In libel cases, how-
ever, we view an erroneous verdict for the plaintiff
as most serious. Not only does it mulct the de-
fendant for an innocent misstatement-the three-quarter-
million-dollar jury verdict in this case could rest on
such an error-but the possibility of such error, even
beyond the vagueness of the negligence standard itself,
would create a strong impetus toward self-censorship,
which the First Amendment cannot tolerate. These
dangers for freedom of speech and press led us to reject
the reasonable-man standard of liability as "simply in-
consistent" with our national commitment under the
First Amendment when sought to be applied to the
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

conduct of a political campaign. Monitor Patriot Co. v.

Roy, 401 U. S. 265, 276 (1971). The same considera-
tions lead us to reject that standard here.
We are aware that the press has, on occasion, grossly
abused the freedom it is given by the Constitution. All
must deplore such excesses. In an ideal world, the re-
sponsibility of the press would match the freedom and
public trust given it. But from the earliest days of our
history, this free society, dependent as it is for its survival
upon a vigorous free press, has tolerated some abuse.
In 1799, James Madison made the point in quoting (and
adopting) John Marshall's answer to Talleyrand's com-
plaints about American newspapers, American State
Papers, 2 Foreign Relations 196 (U. S. Cong. 1832):
"'Among those principles deemed sacred in Amer-
ica, among those sacred rights considered as forming
the bulwark of their liberty, which the Government
contemplates with awful reverence and would ap-
proach only with the most cautious circumspection,
there is no one of which the importance is more
deeply impressed on the public mind than the liberty
of the press. That this liberty is often carried to
excess; that it has sometimes degenerated into li-
centiousness, is seen and lamented, but the remedy
has not yet been discovered. Perhaps it is an evil
inseparable from the good with which it is allied;
perhaps it is a shoot which cannot be stripped from
the stalk without wounding vitally the plant from
which it is torn. However desirable those measures
might be which might correct without enslaving the
press, they have never yet been devised in Amer-
ica.'" 6 Writings of James Madison, 1790-1802,
p. 336 (G. Hunt ed. 1906) (emphasis in original).
This Court has recognized this imperative: "[T] o insure
the ascertainment and publication of the truth about
public affairs, it is essential that the First Amendment
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

protect some erroneous publications as well as true ones."

St. Amant v. Thompson, 390 U. S. 727, 732 (1968).
We thus hold that a libel action, as here, by a private
individual against a licensed radio station for a defama-
tory falsehood in a newscast relating to his involvement
in an event of public or general concern may be sustained
only upon clear and convincing proof that the defamatory
falsehood was published with knowledge that it was false
or with reckless disregard of whether it was false or not. 8
Calculated falsehood, of course, falls outside "the fruitful
exercise of the right of free speech." Garrisonv. Louisi-
ana, 379 U. S. 64, 75 (1964).
Our Brothers HARLAN and MARSHALL reject the know-
ing-or-reckless-falsehood standard in favor of a test that
would require, at least, that the person defamed establish
that the publisher negligently failed to ascertain the truth
of his story; they would also limit any recovery to
"actual" damages. For the reasons we have stated, the
negligence standard gives insufficient breathing space to
First Amendment values. Limiting recovery to actual
damages has the same defects. In the first instance, that
standard, too, leaves the First Amendment insufficient
elbow room within which to function. It is not simply
the possibility of a judgment for damages that results
in self-censorship. The very possibility of having to
engage in litigation, an expensive and protracted process,
18 At oral argument petitioner argued that "the little man can't
show actual malice. How can George Rosenbloom show that there
was actual malice in Metromedia? They never heard of him before."
Tr. of Oral Arg., Dec. 8, 1970, p. 39. But ill will toward the plain-
tiff, or bad motives, are not elements of the New York Times stand-
ard. That standard requires only that the plaintiff prove knowing
or reckless falsity. That burden, and no more, is the plaintiff's
whether "public official," "public figure," or "little man." It may be
that jury instructions that are couched only in terms of knowing or
reckless falsity, and omit reference to "actual malice," would further
a proper application of the New York Times standard to the
evidence.
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

is threat enough to cause discussion and debate to "steer

far wider of the unlawful zone" thereby keeping pro-
tected discussion from public cognizance. Speiser v.
Randall, 357 U. S., at 526. Cf. Blonder-Tongue Labo-
ratories, Inc. v. University of Illinois Foundation, 402
U. S. 313, 334-339 (1971). Too, a small newspaper
suffers equally from a substantial damage award, whether
the label of the award be "actual" or "punitive."
The real thrust of Brothers HARLAN'S and MARSHALL'S
position, however, is their assertion that their proposal
will not "constitutionalize" the factfinding process. But
this clearly is not the way their test would work in prac-
tice. Their approach means only that factfinding will
shift from an inquiry into whether the defamatory state-
ments were knowingly or recklessly uttered to the inquiry
whether they were negligently uttered, and if so, to an
inquiry whether plaintiff suffered "actual" damages. This
latter inquiry will involve judges even more deeply in
factfinding. Would the mere announcement by a state
legislature that embarrassment and pain and suffering
are measurable actual losses mean that such damages
may be awarded in libel actions? No matter how the
problem is approached, this Court would ultimately have
to fashion constitutional definitions of "negligence" and
of "actual damages."
Aside from these particularized considerations, we have
repeatedly recognized that courts may not avoid an ex-
cursion into factfinding in this area simply because it is
time consuming or difficult. We stated in Pennekamp
v. Florida, 328 U. S. 331, 335 (1946), that:
"The Constitution has imposed upon this Court
final authority to determine the meaning and appli-
cation of those words of that instrument which re-
quire interpretation to resolve judicial issues. With
that responsibility, we are compelled to examine for
ourselves the statements in issue and the circum-
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

stances under which they were made to see whether

or not they . .. are of a character which the prin-
ciples of the First Amendment, as adopted by the
Due Process Clause of the Fourteenth Amendment,
protect." (Footnote omitted.)
Clearly, then, this Court has an "obligation to test chal-
lenged judgments against the guarantees of the First and
Fourteenth Amendments," and in doing so "this Court
cannot avoid making an independent constitutional judg-
ment on the facts of the case." Jacobellis v. Ohio,
378 U. S. 184, 190 (1964). The simple fact is that First
Amendment questions of "constitutional fact" compel
this Court's de novo review. See Edwards v. South
Carolina, 372 U. S. 229, 235 (1963); Blackburn v. Ala-
bama, 361 U. S. 199, 205 n. 5 (1960).

VI
Petitioner argues that the instructions on punitive
damages either cured or rendered harmless the instruc-
tions permitting an award of general damages based on
a finding of failure of WIP to exercise reasonable care.
We have doubts of the merits of the premise, 9 but even
19The instructions authorized an award of punitive damages
upon a finding that a falsehood "arose from a bad motive or . . .
that it was published with reckless indifference to the truth ...
punitive damages are awarded as a deterrent from future conduct
of the same sort." App. 333a. The summation of petitioner's
counsel conceded that respondent harbored no ill-will toward peti-
tioner, but, following the suggestion of the instructions that punitive
damages are "'smart' money," App. 313a, argued that they should
be assessed because "[respondent] must be careful the way they
impart news information and you can punish them if they weren't
because you could say that was malicious." Ibid. This was an
obvious invitation based on the instructions to award punitive dam-
ages for carelessness. Thus the jury was allowed, and even encour-
aged, to find malice and award punitive damages merely on the basis
of negligence and bad motive.
 ROSENBLOOM v. METROMEDIA

29 Opinion of BRENNAN, J.

assuming that instructions were given satisfying the

standard of knowing or reckless falsity, the evidence
was insufficient to sustain an award for the petitioner
under that standard. In these cases our "duty is not
limited to the elaboration of constitutional principles;
we must also in proper cases review the evidence to make
certain that those principles have been constitutionally
applied." New York Times Co. v. Sullivan, 376 U. S., at
285. Our independent analysis of the record leads us to
agree with the Court of Appeals that none of the proofs,
considered either singly or cumulatively, satisfies the
constitutional standard with the convincing clarity neces-
sary to raise a jury question whether the defamatory
falsehoods were broadcast with knowledge that they were
false or with reckless disregard of whether they were false
or not.
The evidence most strongly supporting petitioner is
that concerning his visit to WIP's studio where a part-
time newscaster hung up the telephone when petitioner
disputed the newscaster's statement that the District
Attorney had characterized petitioner's magazines as ob-
scene. This contact occurred, however, after all but one
of the second series of broadcasts had been aired. The
incident has no probative value insofar as it bears on peti-
tioner's case as to the first series of broadcasts. That
portion of petitioner's case was based upon the omission
from the first two broadcasts at 6 and 6:30 p. m. on
October 4 of the word "alleged" preceding a characteriza-
tion of the magazines distributed by petitioner. But
that omission was corrected with the 8 p. m. broadcast
and was not repeated in the five broadcasts that fol-
lowed. And we agree with the analysis of the Court of
Appeals that led that court, and leads us, to conclude
that the episode failed to provide evidence satisfying the
New York Times standard insofar as it bore on peti-
 OCTOBER TERM, 1970

Opinion of BRENNAN, J. 403 U. S.

tioner's case based upon the broadcasts on and after

October 21 concerning petitioner's lawsuit:
"Only one broadcast took place after this conversa-
tion. It is attacked on the ground that it contains
an inaccurate statement concerning plaintiff's in-
junction action in that it stated that the district
attorney considered plaintiff's publications to be
smut and immoral literature. The transcript of the
testimony shows that plaintiff's own attorney, when
questioning defendant's representative concerning
the allegedly defamatory portion of the last broad-
cast, said that he was not questioning its 'accuracy'.
Furthermore, his examination of the same witness
brought out that defendant's representative con-
firmed the story with the judge involved before the
broadcast was made. We think that the episode
described failed to provide evidence of actual malice
with the requisite convincing clarity to create a jury
issue under federal standards." 415 F. 2d, at 897.
Petitioner argues finally that WIP's failure to com-
municate with him to learn his side of the case and to
obtain a copy of the magazine for examination, sufficed
to support a verdict under the New York Times stand-
ard. But our "cases are clear that reckless conduct is
not measured by whether a reasonably prudent man
would have published, or would have investigated before
publishing. There must be sufficient evidence to per-
mit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication." St.
Amant v. Thompson, 390 U. S., at 731. Respondent
here relied on information supplied by police officials.
Following petitioner's complaint about the accuracy of
the broadcasts, WIP checked its last report with the
judge who presided in the case. While we may assume
that the District Court correctly held to be defamatory
 ROSENBLOOM v. METROMEDIA

29 WHITE, J., concurring in judgment

respondent's characterizations of petitioner's business as

"the smut literature racket," and of those engaged in it
as "girlie-book peddlers," there is no evidence in the
record to support a conclusion that respondent "in fact
entertained serious doubts as to the truth" of its reports.
Affirmed.

MR. JUSTICE DOUGLAS took no part in the consideration

or decision of this case.

MR. JUSTICE BLACK, concurring in the judgment.

I concur in the judgment of the Court for the reasons
stated in my concurring opinion in New York Times Co.
v. Sullivan, 376 U. S. 254, 293 (1964), in my concurring
and dissenting opinion in Curtis Publishing Co. v. Butts,
388 U. S. 130, 170 (1967), and in MR. JUSTICE DOUGLAS'
concurring opinion in Garrison v. Louisiana, 379 U. S.
64, 80 (1964). I agree of course that First Amendment
protection extends to "all discussion and communication
involving matters of public or general concern, without
regard to whether the persons involved are famous or
anonymous." Ante, at 44. However, in my view, the
First Amendment does not permit the recovery of libel
judgments against the news media even when statements
are broadcast with knowledge they are false. As I stated
in Curtis Publishing Co. v. Butts, supra, "[I]t is time
for this Court to abandon New York Times Co. v. Sullivan
and adopt the rule to the effect that the First Amend-
ment was intended to leave the press free from the
harassment of libel judgments." Id., at 172.

MR. JUSTICE WHITE, concurring in the judgment.

I
Under existing law the First Amendment is deemed
to permit recoveries for damaging falsehoods published
 OCTOBER TERM, 1970

WHITE, J., concurring in judgment 403 U. S.

about public officials or public figures only if the defama-

tion is knowingly or recklessly false. But until today the
First Amendment has not been thought to prevent citi-
zens who are neither public officials nor public figures
from recovering damages for defamation upon proving
publication of a false statement injurious to their repu-
tation. There has been no necessity to show deliberate
falsehood, recklessness, or even negligence.
The Court has now decided that the First Amendment
requires further restrictions on state defamation laws.
MR. JUSTICE BRENNAN and two other members of the
Court would require proof of knowing or reckless mis-
representation of the facts whenever the publication
concerns a subject of legitimate public interest, even
though the target is a "private" citizen. Only residual
areas would remain in which a lower degree of proof
would obtain.
Three other members of the Court also agree that
private reputation has enjoyed too much protection and
the media too little. But in the interest of protecting
reputation, they would not roll back state laws so far.
They would interpret the First Amendment as proscrib-
ing liability without fault and would equate non-negli-
gent falsehood with faultless conduct. The burden of
the damaging lie would be shifted from the media to the
private citizen unless the latter could prove negligence
or some higher degree of fault. They would also dras-
tically limit the authority of the States to award com-
pensatory and punitive damages for injury to reputation.
MR. JUSTICE BLACK, consistently with the views that
he and MR. JUSTICE DOUGLAS have long held, finds no
room in the First Amendment for any defamation recov-
ery whatsoever.
Given this spectrum of proposed restrictions on state
defamation laws and assuming that MR. JUSTICE BLACK
and MR. JUSTICE DOUGLAS will continue in future cases
 ROSENBLOOM v. METROMEDIA

29 WHITE, J., concurring in judgment

to support the severest of the restrictions, it would seem

that at least five members of the Court would support
each of the following rules:
For public officers and public figures to recover for
damage to their reputations for libelous falsehoods, they
must prove either knowing or reckless disregard of the
truth. All other plaintiffs must prove at least negligent
falsehood, but if the publication about them was in an
area of legitimate public interest, then they too must
prove deliberate or reckless error. In all actions for libel
or slander, actual damages must be proved, and awards of
punitive damages will be strictly limited.

II
For myself, I cannot join any of the opinions filed in
this case. Each of them decides broader constitutional
issues and displaces more state libel law than is necessary
for the decision in this case. As I have said, MR. JUSTICE
BRENNAN would extend the privilege enunciated in New
York Times Co. v. Sullivan, 376 U. S. 254 (1964), to
publications upon any "subject of public or general inter-
est." See ante, at 43. He would thereby extend the
constitutional protection to false and damaging, but non-
malicious, publications about such matters as the health
and environmental hazards of widely used manufactured
products, the mental and emotional stability of execu-
tives of business establishments, and the racial and reli-
gious prejudices of many groups and individuals. All
of these are, of course, subjects of real concern, and argu-
ments for placing them within the scope of New York
Times are by no means frivolous.
For MR. JUSTICE MARSHALL and MR. JUSTICE HARLAN,
MR. JUSTICE BRENNAN'S opinion is both too severe and
too limited. They would make more sweeping incursions
into state tort law but purportedly with less destructive
weapons. They would permit suit by some plaintiffs
 OCTOBER TERM, 1970

WHiTE, J., concurring in judgment 403 U. S.

barred under MR. JUSTICE BRENNAN'S opinion, but would

require all plaintiffs to prove at least negligence before
any recovery would be allowed.
I prefer at this juncture not to proceed on such a
broad front. I am quite sure that New York Times Co.
v. Sullivan was the wiser course, but I am unaware that
state libel laws with respect to private citizens have
proved a hazard to the existence or operations of the com-
munications industry in this country. Some members of
the Court seem haunted by fears of self-censorship by the
press and of damage judgments that will threaten its
financial health. But technology has immeasurably in-
creased the power of the press to do both good and evil.
Vast communication combines have been built into prof-
itable ventures. My interest is not in protecting the
treasuries of communicators but in implementing the
First Amendment by insuring that effective communica-
tion which is essential to the continued functioning of our
free society. I am not aware that self-censorship has
caused the press to tread too gingerly in reporting "news"
concerning private citizens and private affairs or that the
reputation of private citizens has received inordinate pro-
tection from falsehood. I am not convinced that we
must fashion a constitutional rule protecting a whole
range of damaging falsehoods and so shift the burden
from those who publish to those who are injured.
I say this with considerable deference since all my
Brethren have contrary views. But I would not nullify
a major part of state libel law until we have given
the matter the most thorough consideration and can
articulate some solid First Amendment grounds based
on experience and our present condition. As it is, to-
day's experiment rests almost entirely on theoretical
grounds and represents a purely intellectual derivation
from what are thought to be important principles of tort
 ROSENBLOOM v. METROMEDIA

29 WHITE, J., concurring in judgment

law as viewed in the light of the primacy of the written

and spoken word.
This case lends itself to more limited adjudication.
New York Times Co. v. Sullivan itself made clear that
discussion of the official actions of public servants such
as the police is constitutionally privileged. "The right
of free public discussion of the stewardship of public
officials" is, in the language of that case, "a fundamental
principle of the American form of government." 376
U. S., at 275. Discussion of the conduct of public officials
cannot, however, be subjected to artificial limitations
designed to protect others involved in an episode with
officials from unfavorable publicity. Such limitations
would deprive the public of full information about the
official action that took place. In the present case, for
example, the public would learn nothing if publication
only of the fact that the police made an arrest were per-
mitted; it is also necessary that the grounds for the arrest
and, in many circumstances, the identity of the person
arrested be stated. In short, it is rarely informative for
a newspaper or broadcaster to state merely that officials
acted unless he also states the reasons for their action
and the persons whom their action affected.
Nor can New York Times be read as permitting publi-
cations that invade the privacy or injure the reputations
of officials, but forbidding those that invade the privacy
or injure the reputations of private citizens against whom
official action is directed. New York Times gives the
broadcasting media and the press the right not only to
censure and criticize officials but also to praise them and
the concomitant right to censure and criticize their ad-
versaries. To extend constitutional protection to criti-
cism only of officials would be to authorize precisely that
sort of thought control that the First Amendment for-
bids government to exercise.

427-293 0 - 72 - 8
 OCTOBER TERM, 1970

HARLAN, J., dissenting 403 U. S.

I would accordingly hold that in defamation actions,

absent actual malice as defined in New York Times Co.
v. Sullivan, the First Amendment gives the press and the
broadcast media a privilege to report and comment upon
the official actions of public servants in full detail, with
no requirement that the reputation or the privacy of an
individual involved in or affected by the official action
be spared from public view. Since respondent Metro-
media did nothing more in the instant case, I join in
holding its broadcasts privileged. I would not, however,
adjudicate cases not now before the Court.

MR. JUSTICE HARLAN, dissenting.

The very facts of this case demonstrate that uncritical
acceptance of the Pennsylvania libel law here involved
would be inconsistent with those important First and
Fourteenth Amendment values we first treated with in
an analogous context in New York Times Co. v. Sullivan,
376 U. S. 254 (1964). However, as the plurality opinion
implicitly recognizes, only an undiscriminating assess-
ment of those values would lead us to extend the New
York Times rule in full force to all purely private
libels. My Brother BRENNAN'S opinion would resolve
the dilemma by distinguishing those private libels that
arise out of events found to be of "public or general con-
cern" from those that do not, and subjecting the former
to full-scale application of the New York Times rule.
For the reasons set forth in Part I of my Brother
MARSHALL'S dissent, I cannot agree to such a solution.
As he so well demonstrates, the principal failing of the
plurality opinion is its inadequate appreciation of the
limitations imposed by the legal process in accommodat-
ing the tension between state libel laws and the federal
constitutional protection given to freedom of speech and
press.
 ROSENBLOOM v. METROMEDIA

29 HARLAN, J., dissenting

Once the evident need to balance the values underlying

each is perceived, it might seem, purely as an abstract
matter, that the most utilitarian approach would be to
scrutinize carefully every jury verdict in every libel case,
in order to ascertain whether the final judgment leaves
fully protected whatever First Amendment values 1 tran-
scend the legitimate state interest in protecting the
particular plaintiff who prevailed. This seems to be what
is done in the plurality opinion. But we did not em-
brace this technique in New York Times, supra. In-
stead, as my Brother MARSHALL observes, we there an-
nounced a rule of general application, not ordinarily
dependent for its implementation upon a case-by-case
examination of trial court verdicts. See also my dissent
in Time, Inc. v. Pape, 401 U. S. 279, 293 (1971). Nor do
I perceive any developments in the seven years since we
decided New York Times, supra, that suggest our original
method should now be abandoned. At least where we
can discern generally applicable rules that should balance
with fair precision the competing interests at stake, such
rules should be preferred to the plurality's approach both
in order to preserve a measure of order and predictability
in the law that must govern the daily conduct of affairs
and to avoid subjecting the press to judicial second-
guessing of the newsworthiness of each item they print.
Consequently, I fully concur in Part I of MR. JUSTICE
MARSHALL'S dissent.

1 Of course, for me, this case presents a Fourteenth, not a purely

First, Amendment issue, for the question is one of the constitution-
ality of the applicable Pennsylvania libel laws. However, I have
found it convenient, in the course of this opinion, occasionally to
speak directly of the First Amendment as a shorthand phrase for
identifying those constitutional values of freedom of expression guar-
anteed to individuals by the Due Process Clause of the Fourteenth
Amendment.
 OCTOBER TERM, 1970

HARLAN, J., dissenting 403 U. S.

Further, I largely agree with the alternative proposals

of that dissent. I, too, think that, when dealing with
private libel, the States should be free to define for them-
selves the applicable standard of care so long as they
do not impose liability without fault; that a showing
of actual damage should be a requisite to recovery for
libel; and that it is impermissible, given the substantial
constitutional values involved, to fail to confine the
amount of jury verdicts in such cases within any ascer-
tainable limits. However, my reasons for so concluding
are somewhat different than his, and I therefore reach
a different result than he does with respect to the tol-
erable limits of punitive damages.

I
I think we all agree on certain core propositions. First,
as a general matter, the States have a perfectly legitimate
interest, exercised in a variety of ways, in redressing and
preventing careless conduct, no matter who is respon-
sible for it, that inflicts actual, measurable injury upon
individual citizens. Secondly, there is no identifiable
value worthy of constitutional protection in the publica-
tion of falsehoods. Third, although libel law provides
that truth is a complete defense, that principle, standing
alone, is insufficient to satisfy the constitutional interest
in freedom of speech and press. For we have recognized
that it is inevitable that there will be "some error in the
situation presented in free debate," Time, Inc. v. Hill, 385
U. S. 374, 406 (1967) (opinion of this writer), a process
that needs "breathing space," NAACP v. Button, 371
U. S. 415, 433 (1963), to flourish, and that "putting to the
pre-existing prejudices of a jury the determination of
what is 'true' may effectively institute a system of censor-
ship." Time, Inc. v. Hill, supra, at 406.
Moreover, any system that punishes certain speech is
likely to induce self-censorship by those who would other-
 ROSENBLOOM v. METROMEDIA

29 HARLAN, J., dissenting

wise exercise their constitutional freedom. Given the

constitutionally protected interest in unfettered speech,
it requires an identifiable, countervailing state interest,
consistent with First Amendment values, to justify a
regulatory scheme that produces such results. And, be-
cause the presence of such values dictates closer scrutiny
of this aspect of state tort law than the Fourteenth
Amendment would otherwise command, it may well be
that certain rules, impervious to constitutional attack
when applied to ordinary human conduct, may have to be
altered or abandoned where used to regulate speech.
Finally, as determined in New York Times, the constitu-
tional interest in tolerance of falsehood as well as the
need to adjust competing societal interests, prohibits, at
a minimum, the imposition of liability without fault.
The precise standard of care necessary to achieve these
goals is, however, a matter of dispute as is the range of
penalties a State may prescribe for a breach of that
standard. In analyzing these problems it is necessary
to begin with a general analytical framework that defines
those competing interests that must be reconciled. My
Brother MARSHALL'S opinion, I think, dwells too lightly
upon the nature of the legitimate countervailing interests
promoted by the State's libel law and, as a result, over-
states the case against punitive damages. Because we
deal with a set of legal rules that treat truth as a com-
plete defense it strikes, I think, somewhat wide of the
mark to treat the State's interest as one of protecting
reputations from "unjustified invasion." Post, at 78.
By hypothesis, the respondent here was free to reveal
any true facts about petitioner's "obscure private life." 2
2 1 would expressly reserve, for a case properly presenting it, the
issue whether the New York Times rule should have any effect on
"privacy" litigation. The problem is briefly touched upon in Time,
Inc. v. Hill, 385 U. S. 374, 404-405 (1967) (HARLAN, J., concurring
and dissenting).
 OCTOBER TERM, 1970

HARLAN, J., dissenting 403 U. S.

Given the defense of truth, it is my judgment that,

in order to assure that it promotes purposes consistent
with First Amendment values, the legitimate function
of libel law must be understood as that of compensating
individuals for actual, measurable harm caused by the
conduct of others. This can best be demonstrated by
postulating a law that subjects publishers to jury verdicts
for falsehoods that have done the plaintiff no harm. In
my view, such a rule can only serve a purpose antithetical
to those of the First Amendment. It penalizes speech,
not to redress or avoid the infliction of harm, but only to
deter the press from publishing material regarding private
behavior that turns out to be false simply because of
its falsity. This the First Amendment will not tolerate.
Where the State cannot point to any tangible danger,
even knowingly erroneous publication is entitled to con-
stitutional protection because of the interest in avoiding
an inquiry into the mere truth or falsity of speech.
Moreover, such a scheme would impose a burden on
speaking not generally placed upon constitutionally un-
protected conduct-the payment of private fines for con-
duct which, although not conformed to established limits
of care, causes no harm in fact.
Conversely, I think that where the purpose and effect
of the law are to redress actual and measurable injury to
private individuals that was reasonably foreseeable as a
result of the publication, there is no necessary conflict
with the values of freedom of speech. Just as an auto-
mobile negligently driven can cost a person his physical
and mental well-being and the fruits of his labor, so can
a printing press negligently set. While the First Amend-
ment protects the press from the imposition of special
liabilities upon it, "[t]o exempt a publisher, because of
the nature of his calling, from an imposition generally
exacted from other members of the community, would be
to extend a protection not required by the constitutional
 ROSENBLOOM v. METROMEDIA

29 HARLAN, J., dissenting

guarantee." Curtis Publishing Co. v. Butts, 388 U. S.

130, 160 (1967) (opinion of this writer). A business
"is not immune from regulation because it is an agency
of the press. The publisher of a newspaper has no special
immunity from the application of general laws. He has
no special privilege to invade the rights and liberties of
others." Associated Press v. NLRB, 301 U. S. 103, 132-
133 (1937). That the damage has been inflicted by
words rather than other instrumentalities cannot insulate
it from liability. States may legitimately be required to
use finer regulatory tools where dealing with "speech,"
but they are not wholly disabled from exacting compen-
sation for its measurable adverse consequences. If this
is not so, it is difficult to understand why governments
may, for example, proscribe "misleading" advertising
practices or specify what is "true" in the dissemination
of consumer credit advertisements.
Nor does this interest in compensating victims of harm-
ful conduct somehow disappear when the damages in-
flicted are great. So long as the effect of the law of libel
is simply to make publishers pay for the harm they cause,
and the standard of care required is appropriately ad-
justed to take account of the special countervailing inter-
ests in an open exchange of ideas, the fact that this
may involve the payment of substantial sums cannot
plausibly be said to raise serious First Amendment
problems. If a newspaper refused to pay its bills be-
cause to do so would put it out of business, would
the First Amendment dictate that this be treated as
a partial or complete defense? If an automobile car-
rying a newsman to the scene of a history-making
event ran over a pedestrian, would the size of the verdict,
if based upon generally applicable tort law principles,
have to be assessed against the probability that it would
deter broadcasters from news gathering before it could
pass muster under the First Amendment?
 OCTOBER TERM, 1970

HARLAN, J., dissenting 403 U. S.

However, without foreclosing the possibility that other

limiting principles may be surfaced by subsequent ex-
perience, I do think that since we are dealing, by
hypothesis, with infliction of harm through the exer-
cise of freedom of speech and the press to which the
Constitution gives explicit protection, recoverable dam-
ages must be limited to those consequences of the pub-
lication which are reasonably foreseeable. The usual
tort rule seems to be that once some foreseeable injury
has been inflicted, the negligent defendant must com-
pensate for all damages he proximately caused in fact,
no matter how peculiar were the circumstances of the
particular plaintiff involved. W. Prosser, The Law of
Torts § 50 (3d ed. 1964). However, our cases establish, I
think, that, unless he has knowledge to the contrary, a
speaker is entitled to presume that he is addressing an
audience that is not especially susceptible to distress at
the specter of open, uninhibited, robust speech. Cohen
v. California,ante, p. 15. See also Brandenburg v. Ohio,
395 U. S. 444 (1969); Butler v. Michigan, 352 U. S. 380
(1957). Thus, I think the speaker should be free from
a duty to compensate for actual harm inflicted by his
falsehoods where the defamation would not have caused
such harm to a person of average sensibilities unless, of
course, the speaker knew that his statements were made
concerning an unusually sensitive person. In short, I
think the First Amendment does protect generally against
the possibility of self-censorship in order to avoid unwit-
ting affronts to the frail and the queasy.

II
Of course, it does not follow that so long as libel law
performs the same compensatory function as civil law
generally it is necessarily legitimate in all its various
applications. The presence of First Amendment values
means that the State can be compelled to utilize finer,
 ROSENBLOOM v. METROMEDIA

29 HARLAN, J., dissenting

more discriminating instruments of regulation where nec-

essary to give more careful protection to these counter-
vailing interests. New York Times, supra, and Curtis
Publishing Co., supra, established that where the injured
party is a "public figure" or a "public official," the interest
in freedom of speech dictates that the States forgo their
interest in compensating for actual harm, even upon a
basis generally applicable to all members of society, unless
the plaintiff can show that the injurious publication was
false and was made "with 'actual malice'-that is, with
knowledge that it was false or with reckless disregard of
whether it was false or not." New York Times, supra,
at 280. Tacitly recognizing that it would unduly sacri-
fice the operative legitimate state interests to extend this
rule to all cases where the injured party is simply a pri-
vate individual, the plurality opinion would nevertheless
apply it where the publication concerned such a person's
"involvement in an event of public or general concern."
Ante, at 52. I would not overrule New York Times or
Curtis Publishing Co. and I do agree, as indicated above,
that making liability turn on simple falsity in the purely
private libel area is not constitutionally permissible. But
I would not construe the Federal Constitution to require
that the States adhere to a standard other than that of
reasonable care where the plaintiff is an ordinary citizen.
My principal concern with the plurality's view, of
course, is that voiced by my Brother MARSHALL. How-
ever, even if this objection were not tenable, unlike the
plurality, I do think there is a difference, relevant to the
interests here involved, between the public and the private
plaintiff, as our cases have defined these categories, and
that maintaining a constitutional distinction between
them is at least as likely to protect true First Amendment
concerns as one that eradicates such a line and substi-
tutes for it a distinction between matters we think are
of true social significance and those we think are not.
 OCTOBER TERM, 1970

HARLAN, J., dissenting 403 U. S.

To begin, it does no violence, in my judgment, to the

value of freedom of speech and press to impose a duty
of reasonable care upon those who would exercise these
freedoms. I do not think it can be gainsaid that the
States have a substantial interest in encouraging speakers
to carefully seek the truth before they communicate, as
well as in compensating persons actually harmed by false
descriptions of their personal behavior. Additionally,
the burden of acting reasonably in taking action that
may produce adverse consequences for others is one
generally placed upon all in our society. Thus, history
itself belies the argument that a speaker must somehow
be freed of the ordinary constraints of acting with reason-
able care in order to contribute to the public good while,
for example, doctors, accountants, and architects have
constantly performed within such bounds.
This does not mean that I do not agree with the rule
of New York Times, supra, but only that I deem it
inapplicable here. That rule was not, I think, born solely
of a desire to free speech that would otherwise have been
stifled by overly restrictive rules, but also rested upon a
determination that the countervailing state interests, de-
scribed above, were not fully applicable where the subject
of the falsehood was a public official or a public figure.
For me, it does seem quite clear that the public person
has a greater likelihood of securing access to channels of
communication sufficient to rebut falsehoods concern-
ing him than do private individuals in this country who
do not toil in the public spotlight. Similarly, our
willingness to assume that public personalities are more
impervious to criticism, and may be held to have run
the risk of publicly circulated falsehoods concerning
them, does not rest solely upon an empirical assertion
of fact, but also upon a belief that, in our political
system, the individual speaker is entitled to act upon
such an assumption if our institutions are to be held
 ROSENBLOOM v. METROMEDIA

29 HARLAN, J., dissenting

up, as they should be, to constant scrutiny. And, at

least as to the "public official," it seems to be universally
the case that he is entitled to an absolute immunity for
what he may utter in response to the charges of others.
Where such factors are present the need to provide mone-
tary compensation for defamation appears a good deal
more attenuated. Finally, in light of the plurality opin-
ion's somewhat extravagant delineation of the public
interest involved in the dissemination of information
about nonpublic persons, it bears emphasizing that a pri-
mary rationale for extending the New York Times rule to
public figures was the desire to reflect, in the constitu-
tional balance, the fact that "in this country, the distinc-
tions between governmental and private sectors are
blurred," Curtis Publishing Co., supra,at 163 (opinion of
Warren, C. J.), and to treat constitutional values as
specially implicated where important, albeit nonofficial,
policy and behavior were the subjects of discussion. At
the very least, this tends to diminish the force of any con-
tention that libelous depictions of nonpublic persons
are often likely to involve matters of abiding public
significance.
I cannot agree that the First Amendment gives special
protection to the press from "[t]he very possibility of
having to engage in litigation," ante, at 52 (opinion of
BRENNAN, J.). Were this assertion tenable, I do not see
why the States could ever enforce their libel laws. Cf.
my Brother BLACK'S opinion, ante, at 57. Further, it
would certainly cast very grave doubts upon the constitu-
tionality of so-called "right-of-reply statutes" advocated
by the plurality, ante, at 47 n. 15, and ultimately treat
the application of any general law to a publisher or broad-
caster as an important First Amendment issue. The
notion that such an interest, in the context of a purely
private libel, is a significant independent constitutional
value is an unfortunate consequence of the plurality's
 OCTOBER TERM, 1970

HARLAN, J., dissenting 403 U. S.

single-minded devotion to the task of preventing self-

censorship, regardless of the purposes for which such
restraint is induced or the evils its exercise tends to
avoid.
It is, then, my judgment that the reasonable care stand-
ard adequately serves those First Amendment values that
must inform the definition of actionable libel and that
those special considerations that made even this standard
an insufficiently precise technique when applied to plain-
tiffs who are "public officials" or "public figures" do not
obtain where the litigant is a purely private individual.
III
There remains the problem of punitive damages.' No
doubt my Brother MARSHALL is correct in asserting that
the specter of being forced to pay out substantial punitive
damage awards is likely to induce self-censorship. This
would probably also be the case where the harm actually
caused is likely to be great. But, as I indicated above,
this fact in itself would not justify construing the First
Amendment to impose an arbitrary limitation on the
amount of actual damages recoverable. Thus, as my
Brother MARSHALL would apparently agree-since he,
too, proposes no limitation on actual damages-one can-
not jump from the proposition that fear of substantial
punitive damage awards may be an important factor in

3 The conclusions I reach in Part III of this opinion are some-

what different from those I embraced four Terms ago in Curtis

Publishing Co., supra, at 159-161. Where matters are in flux, how-
ever, it is more important to re-think past conclusions than to adhere
to them without question and the problem under consideration
remains in a state of evolution, as is attested to by all the opinions
filed today. Reflection has convinced me that my earlier opinion
painted with somewhat too broad a brush and that a more precise
balancing of the conflicting interests involved is called for in this
delicate area.
 ROSENBLOOM v. METROMEDIA

29 HARLAN, J., dissenting

inducing self-censorship directly to the result that puni-

tive damages cannot be assessed in all private libel cases.
A more particularized inquiry into the nature of the
competing interests involved is necessary in order to
ascertain whether awarding punitive damages must in-
evitably, in private libel cases, serve only interests that
are incompatible with the First Amendment.
At a minimum, even in the purely private libel area,
I think the First Amendment should be construed to
limit the imposition of punitive damages to those situa-
tions where actual malice is proved. This is the typical
standard employed in assessing anyone's liability for
punitive damages where the underlying aim of the law
is to compensate for harm actually caused, see, e. g.,
3 L. Frumer et al., Personal Injury § 2.02 (1965);
H. Oleck, Damages to Persons and Property § 30 (1955),
and no conceivable state interest could justify imposing
a harsher standard on the exercise of those freedoms that
are given explicit protection by the First Amendment.
The question then arises whether further limitations
on this general state power must be imposed in order to
serve the particularized goals of the First Amendment.
The most compelling rationale for providing punitive
damages where actual malice is shown is that such dam-
ages assure that deterrent force is added to the jury's
verdict. If the speaker's conduct was quite likely to
produce substantial harm, but fortuitously did not, simple
assessment of actual damages will not fully reflect the
social interest in deterring that conduct generally. Fur-
ther, even if the harm done was great the defendant may
have unusually substantial resources that make the award
of actual damages a trivial inconvenience of no actual
deterrent value. And even where neither of these factors
obtains, the State always retains an interest in punishing
more severely conduct that, although it causes the same
effect, is more morally blameworthy. For example, con-
 OCTOBER TERM, 1970

HARLAN, J., dissenting 403 U. S.

sider the distinction between manslaughter and first-

degree murder.
I find it impossible to say, at least without further judi-
cial experience in this area, that the First Amendment
interest in avoiding self-censorship will always outweigh
the state interest in vindicating these policies. It seems
that a legislative choice is permissible which, for example,
seeks to induce, through a reasonable monetary assess-
ment, repression of false material, published with actual
malice, that was demonstrably harmful and reasonably
thought capable of causing substantial harm, but, in
fact, was not so fully injurious to the individual at-
tacked. Similarly, the State surely has a legitimate inter-
est in seeking to assure that its system of compensating
victims of negligent behavior also operates upon all as an
inducement to avoidance of such conduct. And, these
are burdens that are placed on all members of society,
thus permitting the press to escape them only if its inter-
est is somehow different in this regard.
However, from the standpoint of the individual plain-
tiff such damage awards are windfalls. They are, in
essence, private fines levied for purposes that may be
wholly unrelated to the circumstances of the actual liti-
gant. That fact alone is not, I think, enough to condemn
them. The State may, as it often does, use the vehicle
of a private lawsuit to serve broader public purposes.
It is noteworthy that my Brother MARSHALL does not rest
his objection to punitive damages upon these grounds.
He fears, instead, the self-censorship that may flow from
the unbridled discretion of juries to set the amount of
such damages. I agree that where these amounts bear no
relationship to the actual harm caused, they then serve
essentially as springboards to jury assessment, without
reference to the primary legitimating compensatory func-
tion of the system, of an infinitely wide range of penalties
wholly unpredictable in amount at the time of the pub-
 ROSENBLOOM v. METROMEDIA

29 HARLAN, J., dissenting

lication and that this must be a substantial factor in

inducing self-censorship. Further, I find it difficult to
fathom why it may be necessary, in order to achieve its
justifiable deterrence goals, for the States to permit puni-
tive damages that bear no discernible relationship to
the actual harm caused by the publication at issue. A
rational determination of the injury a publication might
potentially have inflicted should typically proceed from
the harm done in fact. And where the compensatory
scheme seeks to achieve deterrence as a subsidiary by-
product, the desired deterrence, if not precisely measured
by actual damages, should be informed by that touch-
stone if deterrence of falsehood is not to replace compen-
sation for harm as the paramount goal. Finally, while
our legal system does often mete out harsher punishment
for more culpable acts, it typically begins with a grada-
tion of offenses defined in terms of effects. Compare, for
example, larceny with murder. It is not surprising, then,
that most States apparently require that punitive dam-
ages in most private civil actions bear some reasonable
relation to the actual damages awarded, Oleck, at § 275,
Pennsylvania included, Weider v. Hoffman, 238 F. Supp.
437, 444-447 (MD Pa. 1965).
However, where the amount of punitive damages
awarded bears a reasonable and purposeful relationship
to the actual harm done, I cannot agree that the Consti-
tution must be read to prohibit such an award. Indeed,
as I understand it, my Brother MARSHALL'S objection to
my position 4 is not that the interest in freedom of speech
dictates eliminating such judgments, but that this result

4 Of course, I do not envision that, consistently with my views,

the States could only exact some predetermined multiple of the
actual damages found. I should think a jury could simply be in-
structed, along the lines set out in my opinion, on the legitimate
uses of the punitive damage award and the necessity for relating any
such judgment to the harm actually done.
 OCTOBER TERM, 1970

HARLAN, J., dissenting 403 U. S.

is compelled by the need to avoid involving courts in an

"ad hoc balancing" of "the content of the speech and the
surrounding circumstances," post, at 86, 85, much like
that undertaken today in Part VI of the plurality opinion,
the same technique criticized in my dissent in Time, Inc.
v. Pape, supra. I find this argument unpersuasive.
First, I do not see why my proposed rule would neces-
sarily require frequent judicial reweighing of the facts
underlying each jury verdict. A carefully and properly
instructed jury should ordinarily be able to arrive at
damage awards that are self-validating. It is others,
not I, who have placed upon the federal courts the gen-
eral duty of reweighing jury verdicts regarding the
degree of fault demonstrated in libel actions. Further,
to the extent that supervision of jury verdicts would be
required it would entail a different process from that
undertaken where judges redetermine the degree of
fault. The defendant's resources, the actual harm suf-
fered by the plaintiff, and the publication's potential for
actual harm are all susceptible of more or less objective
measurement. And the overriding principle that deter-
rence is not to be made a substitute for compensation
should serve as a useful mechanism for adjusting the
equation. Finally, even if some marginal "ad hoc bal-
ancing" becomes necessary, I should think it the duty
of this Court at least to attempt to implement such a
process before pre-empting, for itself, all state power in
this regard.'

5The plurality opinion states that the "real thrust" of my position

is that it "will not 'constitutionalize' the factfinding process." Ante,
at 53. In fact, I have attempted to demonstrate throughout this
opinion that I believe the positions of my Brothers BRENNAN,
BLACK, and MARSHALL all, in varying degrees, overstate the extent
to which libel law is incompatible with the constitutional guarantee
of freedom of expression, and have pointed out that I think my views
 ROSENBLOOM v. METROMEDIA

29 HARLAN, J., dissenting

In sum, given the fact that it seems to reflect the ma-

jority rule, that most of our jurisprudence proceeds upon
the premise that legislative purposes can be achieved by
fitting the punishment to the crime, and since we deal
here with a precise constitutional interest that may legiti-
mately require the States to resort to more discriminat-
ing regulation within a more circumscribed area of per-
missible concern, I would hold unconstitutional, in a
private libel case, jury authority to award punitive dam-
ages which is unconfined by the requirement that these
awards bear a reasonable and purposeful relationship to
the actual harm done. Conversely, where the jury au-
thority has been exercised within such constraints, and
the plaintiff has proved that the speaker acted out of
express malice, given the present state of judicial ex-
perience, I think it would be an unwarranted intrusion
into the legitimate legislative processes of the States and
an impermissibly broad construction of the First Amend-
ment to nullify that state action.
Because the Court of Appeals adjudicated this case
upon principles wholly unlike those suggested here, I

have merit "even if [the objection noted in my Brother MARSHALL'S

opinion] were not tenable." Supra, at 69. Moreover, the assertion
that an inquiry into whether actual damages were suffered "will
involve judges even more deeply in factfinding," ante, at 53, than
ascertaining whether "the defendant in fact entertained serious
doubts as to the truth of his publication," ante, at 56, or whether the
publication involved "an event of public or general concern," ante,
at 52, seems to me to carry its own refutation. The former focuses
on measurable, objective fact; the latter upon subjective, personal
belief. Finally, I cannot see why juries may not typically be en-
trusted responsibly to determine whether a publisher was negligent,
a function they perform in judging the harmful conduct of most
other members of society; or why it should be materially more
difficult for judges to oversee such decisions where a speaker, rather
than any other actor, is a defendant.

427-293 0 - "72- 9
 OCTOBER TERM, 1970

MARSHALL, J., dissenting 403 U. S.

would vacate the judgment below and remand the case

for further proceedings consistent with the views ex-
pressed herein.

MR. JUSTICE MARSHALL, with whom MR. JUSTICE STEW-

ART joins, dissenting.
Here, unlike the other cases involving the New York
Times 1 doctrine, we are dealing with an individual who
held no public office, who had not taken part in any
public controversy, and who lived an obscure private
life.2 George Rosenbloom, before the events and reports
of the events involved here, was just one of the millions
of Americans who live their lives in obscurity.
The protection of the reputation of such anonymous
persons "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." Rosen-
blatt v. Baer, 383 U. S. 75, 92 (1966) (STEWART, J., con-
curring). But the concept of a citizenry informed by
a free and unfettered press is also basic to our system of
ordered liberty. Here these two essential and funda-
mental values conflict.
I
The plurality has attempted to resolve the conflict by
creating a conditional constitutional privilege for defama-
tion published in connection with an event that is found
to be of "public or general concern." The condition for
the privilege is that the defamation must not be pub-
lished "with knowledge that it was false or with reckless
'New York Times Co. v. Sullivan, 376 U. S. 254 (1964).
2 See, e. g., Associated Press v. Walker, 388 U. S. 130 (1967);
Curtis Publishing Co. v. Butts, 388 U. S.130 (1967); Beckley News-
papers Corp. v. Hanks, 389 U. S.81 (1967); Greenbelt Publishing
Assn. v. Bresler, 398 U. S.6 (1970); Rosenblatt v. Baer, 383 U. S.
75 (1966).
 ROSENBLOOM v. METROMEDIA

29 MARSHALL, J., dissenting

disregard of whether it was false or not." I believe that

this approach offers inadequate protection for both of
the basic values that are at stake.
In order for particular defamation to come within the
privilege there must be a determination that the event
was of legitimate public interest. That determination
will have to be made by courts generally and, in the
last analysis, by this Court in particular. Courts, in-
cluding this one, are not anointed with any extraordinary
prescience. But, assuming that under the rule announced
by MR. JUSTIcE BRENNAN for the plurality, courts are
not simply to take a poll to determine whether a sub-
stantial portion of the population is interested or con-
cerned in a subject, courts will be required to somehow
pass on the legitimacy of interest in a particular event
or subject; what information is relevant to self-govern-
ment. See Whitney v. California, 274 U. S. 357, 375
(1927) (Brandeis, J., concurring). The danger such a
doctrine portends for freedom of the press seems apparent.
The plurality's doctrine also threatens society's interest
in protecting private individuals from being thrust into
the public eye by the distorting light of defamation.
This danger exists since all human events are arguably
within the area of "public or general concern." My
Brother BRENNAN does not try to provide guidelines or
standards by which courts are to decide the scope of
public concern. He does, however, indicate that areas
exist that are not the proper focus of public concern,
and cites Griswold v. Connecticut, 381 U. S.479 (1965).
But it is apparent that in an era of a dramatic threat of
overpopulation and one in which previously accepted
standards of conduct are widely heralded as outdated,
even the intimate and personal concerns with which the
Court dealt in that case cannot be said to be outside the
area of "public or general concern."
 OCTOBER TERM, 1970

MARSHALL, J., dissenting 403 U. S.

The threats and inadequacies of using the plurality's

conditional privilege to resolve the conflict between the
two basic values involved here have been illustrated by
the experience courts have had in trying to deal with
the right of privacy. See Cohen, A New Niche for
the Fault Principle: A Forthcoming Newsworthiness
Privilege in Libel Cases?, 18 U. C. L. A. L. Rev.
371, 379-381 (1970); Kalven, Privacy in Tort Law-
Were Warren and Brandeis Wrong?, 31 Law & Con-
temp. Prob. 326, 336 (1966). The authors of the
most famous of all law review articles recommended
that no protection be given to privacy interests when the
publication dealt with a "matter which is of public or
general interest." Warren & Brandeis, The Right to
Privacy, 4 Harv. L. Rev. 193, 214 (1890). Yet cases
dealing with this caveat raise serious questions whether
it has substantially destroyed the right of privacy as
Warren and Brandeis envisioned it.3 For example, the
publication of a picture of the body of plaintiff's daughter
immediately after her death in an automobile accident
was held to be protected. Kelley v. Post Publishing Co.,
327 Mass. 275, 98 N. E. 2d 286 (1951). And the publi-
cation of the details of the somewhat peculiar behavior
of a former child prodigy, who had a passion for obscurity,
was found to involve a matter of public concern. Sidis v.
F-R Pub. Corp., 113 F. 2d 806 (CA2 1940).
In New York Times the Court chose to balance the
competing interests by seeming to announce a generally
applicable rule. Here it is apparent that the general
rule announced cannot have general applicability. The
plurality's conditional privilege approach, when coupled

3 For cases in which the courts have protected the privacy of

persons involved in dramatic public events see Mau v. Rio Grande

Oil, Inc., 28 F. Supp. 845 (ND Cal. 1939), and Melvin v. Reid,
112 Cal. App. 285, 297 P. 91 (1931).
 ROSENBLOOM v. METROMEDIA

29 MARSHALL, J., dissenting

with constitutionalizing of the factfinding process,4 see

Part VI of MR. JUSTICE BRENNAN'S opinion, results in the
adoption of an ad hoc balancing of the two interests in-
volved. The Court is required to weigh the nuances of
each particular circumstance on its scale of values regard-
ing the relative importance of society's interest in protect-
ing individuals from defamation against the importance of
a free press. This scale may arguably be a more finely
tuned instrument in a particular case. But whatever
precision the ad hoc method supplies is achieved at a
substantial cost in predictability and certainty. More-
over, such an approach will require this Court to engage
in a constant and continuing supervision of defamation
litigation throughout the country. See Time, Inc. v.
Pape, 401 U. S. 279, 293 (1971) (HARLAN, J., dissenting);
Curtis Publishing Co. v. Butts, 388 U. S. 130, 171 (1967)
(opinion of BLACK, J.).
Undoubtedly, ad hoc balancing may be appropriate
in some circumstances that involve First Amendment
problems. See, e. g., Bates v. Little Rock, 361 U. S.
516 (1960); Tinker v. Des Moines Independent Com-
munity School Dist., 393 U. S. 503 (1969). But
in view of the shortcomings of my Brother BRENNAN'S
test, defamation of a private individual by the mass media
is not one of the occasions for unfettered ad hoc bal-
ancing. A generally applicable resolution is available
that promises to provide an adequate balance between
the interest in protecting individuals from defamation
and the equally basic interest in protecting freedom of
the press.
II

As the plurality recognizes here and as was recognized

as the basic premise of the New York Times principle, the
threat that defamation law presents for the values
4 See Time, Inc. v. Pape, 401 U. S. 279 (1971).
 OCTOBER TERM, 1970

MARSHALL, J., dissenting 403 U. S.

encompassed in the concept of freedom of the press is

that of self-censorship. Our notions of liberty require
a free and vigorous press that presents what it believes
to be information of interest or importance; not timo-
rous, afraid of an error that leaves it open to liabil-
ity for hundreds of thousands of dollars. The size
of the potential judgment that may be rendered against
the press must be the most significant factor in producing
self-censorship-a judgment like the one rendered against
Metromedia would be fatal to many smaller publishers.'
The judgments that may be entered in defamation
cases are unlike those that may be entered in most litiga-
tion since the bulk of the award is given to punish the
defendant or to compensate for presumed damages. Here
the jury awarded Mr. Rosenbloom $725,000 in punitive
damages.' This huge sum was given not to compensate
him for any injury but to punish Metromedia. The
concept of punitive or exemplary damages was first articu-
lated in Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768
(K. B. 1763)-one of the general warrant cases. There
Lord Camden found that the power to award such
damages was inherent in the jury's exercise of uncon-
trolled discretion in the awarding of damages. See 1 T.
Sedgwick, Damages §§ 347-350 (9th ed. 1912). Today
these damages are rationalized as a way to punish the
wrongdoer and to admonish others not to err. See Mor-
ris, Punitive Damages in Tort Cases, 44 Harv. L. Rev.
1172 (1931). Thus they serve the same function as
criminal penalties and are in effect private fines. Un-
like criminal penalties, however, punitive damages are
not awarded within discernible limits but can be awarded
r New York Times Co. v. Sullivan, 376 U. S., at 279.
6
The jury awarded Mr. Rosenbloom $25,000 in general damages
and $725,000 in punitive damages. The District Court reduced the
punitive damages to $250,000 on remittitur.
7 See n. 6, supra.
 ROSENBLOOM v. METROMEDIA

29 MARSHALL, J., dissenting

in almost any amount. Since there is not even an at-

tempt to offset any palpable loss and since these damages
are the direct product of the ancient theory of un-
limited jury discretion, the only limit placed on the jury
in awarding punitive damages is that the damages not
be "excessive," and in some jurisdictions, that they bear
some relationship to the amount of compensatory dam-
ages awarded.' See H. Oleck, Damages to Persons
and Property § 275, pp. 557-560 (1955). The manner
in which unlimited discretion may be exercised is plainly
unpredictable. And fear of the extensive awards that
may be given under the doctrine must necessarily produce
the impingement on freedom of the press recognized in
New York Times.
In addition to the huge awards that may be given
under the label of punitive or exemplary damages, other
doctrines in the law of defamation allow substantial dam-
ages without even an offer of evidence that there was
actually injury. See Montgomery v. Dennison, 363 Pa.
255, 69 A. 2d 520 (1949); Restatement of Torts § 621
(1938). These doctrines create a legal presumption that
substantial injuries "normally flow" from defamation.
There is no requirement that there be even an offer of
proof that there was in fact financial loss, physical or
emotional suffering, or that the plaintiff's standing in the
community was diminished. The effect is to give the
jury essentially unlimited discretion and thus to give it
much the same power it exercises under the labels of
punitive or exemplary damages. The impingement upon
free speech is the same no matter what label is attached.
1Most jurisdictions in this country recognize the concept of
punitive or exemplary damages. Four States-Illinois, Massachu-
setts, Nebraska, and Washington-apparently do not recognize the
doctrine. In Louisiana and Indiana the doctrine has limited appli-
cability. See H. Oleck, Damages to Persons and Property § 269, p.
541 (1955).
 OCTOBER TERM, 1970

MARSHALL, J., dissenting 403 U. S.

The unlimited discretion exercised by juries in award-

ing punitive and presumed damages compounds the
problem of self-censorship that necessarily results
from the awarding of huge judgments. This discretion
allows juries to penalize heavily the unorthodox and the
unpopular and exact little from others. Such free wheel-
ing discretion presents obvious and basic threats to
society's interest in freedom of the press. And the utility
of the discretion in fostering society's interest in protect-
ing individuals from defamation is at best vague and
uncertain. These awards are not to compensate victims;
they are only windfalls. Certainly, the large judgments
that can be awarded admonish the particular defendant
affected as well as other potential transgressors not to
publish defamation. The degree of admonition-the
amount of the judgment in relation to the defamer's
means-is not, however, tied to any concept of what is
necessary to deter future conduct nor is there even any
way to determine that the jury has considered the cul-
pability of the conduct involved in the particular case.
Thus the essence of the discretion is unpredictability and
uncertainty.
The threats to society's interest in freedom of the
press that are involved in punitive and presumed damages
can largely be eliminated by restricting the award of
damages to proved, actual injuries. The jury's wide-
ranging discretion will largely be eliminated since the
award will be based on essentially objective, discernible
factors. And the self-censorship that results from the
uncertainty created by the discretion as well as the self-
censorship resulting from the fear of large judgments
themselves would be reduced. At the same time, society's
interest in protecting individuals from defamation will
still be fostered. The victims of the defamation will be
compensated for their real injuries. They will not be,
however, assuaged far beyond their wounds. And, there
 ROSENBLOOM v. METROMEDIA

29 MARSHALL, J., dissenting

will be a substantial although imprecise and imperfect

admonition to avoid future defamation by imposing
the requirement that there be compensation for actual
damages.
My Brother HARLAN argues that it is unnecessary to
go so far. Although he recognizes the dangers involved
in failing "to confine the amount of jury verdicts . . .
within any ascertainable limits," MR. JUSTICE HARLAN
suggests that on a finding of actual malice punitive dam-
ages may be awarded if they "bear a reasonable and
purposeful relationship to the actual harm done." My
Brother HARLAN envisions jurors being instructed I to
consider the deterrent function of punitive damages
and to try to gear the punitive damages awarded
in some undetermined way to actual injury. Ap-
parently, the jury under the supervision of the court
would weigh the content of the speech and the sur-
rounding circumstances-inter alia, the position of
the plaintiff, the wealth of the defendant, and the nature
of the instrument of publication-on the scale of their
values and determine what amount is necessary in light
of the various interests involved. Since there would be
no objective standard by which to measure the jury's de-
cision there would be no predetermined limit of jury dis-
cretion and all of the threats to freedom of the press
involved in such discretion would remain. The chant
of some new incantation will, of course, provide clear
authority for a court to substitute its values for the jury's
and remake the decision. If this is what my Brother

1"[A] jury instruction is not abracadabra. It is not a magical

incantation, the slightest deviation from which will break the spell.
Only its poorer examples are formalistic codes recited by a trial
judge to please appellate masters. At its best, it is simple, rugged
communication from a trial judge to a jury of ordinary people,
entitled to be appraised in terms of its net effect." Time, Inc. v.
Hill, 385 U. S. 374, 418 (1967) (Fortas, J., dissenting).
 OCTOBER TERM, 1970

MARSHALL, J., dissenting 403 U. S.

HARLAN envisions, he is merely moving the ad hoc bal-

ancing from the question of fault to the question of
damages.
I believe that the appropriate resolution of the clash
of societal values here is to restrict damages to actual
losses. See Hill, The Bill of Rights and the Supervisory
Power, 69 Col. L. Rev. 181, 191 n. 62 (1969). Of
course, damages can be awarded for more than direct
pecuniary loss but they must be related to some proved
harm. See Wright, Defamation, Privacy, and the Pub-
lic's Right to Know: A National Problem and a New
Approach, 46 Tex. L. Rev. 630, 648 (1968). If awards
are so limited in cases involving private individuals-
persons first brought to public attention by the defa-
mation that is the subject of the lawsuit-it will be
unnecessary to rely, as both the plurality and to some
extent MR. JUSTICE HARLAN do, on somewhat elusive
concepts" of the degree of fault, and unnecessary, for
constitutional purposes, to engage in ad hoc balancing
of the competing interests involved. 1 States would be
essentially free to continue the evolution of the com-
mon law of defamation and to articulate whatever fault
standard best suits the State's need. 2
The only constitutional caveat should be that absolute
or strict liability, like uncontrolled damages and private
10 See n. 9, supra.
"IOf course, reliance on limiting awards to compensation for
actual loss will require some review of the facts of particular cases.
But that review will be limited to essentially objectively deter-
minable issues; the contents of the publication will not have to be
considered.
12 Leaving States free to impose liability when defamation is found
to be the result of negligent conduct, should make it somewhat more
likely that a private person will have a meaningful forum in which
to vindicate his reputation. If the standard of care is higher, it
would seem that publishers will be more likely to assert the defense
of truth than simply contend that they did not breach the standard.
 ROSENBLOOM v. METROMEDIA

29 MARSHALL, J., dissenting

fines, cannot be used.13 The effect of imposing liability

without fault is to place "the printed, written or spoken
word in the same class with the use of explosives or the
keeping of dangerous animals." W. Prosser, The Law
of Torts § 108, p. 792 (3d ed. 1964). Clearly, this is
inconsistent with the concepts of freedom of the press.
Thus in this case I would reverse the judgment of the
Court of Appeals for the Third Circuit and remand the
case for a determination of whether Mr. Rosenbloom can
show any actual loss.

13 Strict liability for defamation was first clearly established in

Jones v. E. Hulton & Co., [1909] 2 K. B. 444, aff'd, [1910] A. C. 20.
See Smith, Jones v. Hulton: Three Conflicting Judicial Views As
to a Question of Defamation, 60 U. Pa. L. Rev. 365 and 461 (1912).
The standard has been applied in many jurisdictions in this country.
See, e. g., Upton v. Times-Democrat Publishing Co., 104 La. 141, 28
So. 970 (1900); Laudati v. Stea, 44 R. I. 303, 117 A. 422 (1922);
Taylor v. Hearst, 107 Cal. 262, 40 P. 392 (1895). See also Restate-
ment of Torts § 582, comment g (1938). Liability without fault has
not been applied, however, in Pennsylvania. See Summit Hotel Co.
v. National Broadcasting Co., 336 Pa. 182, 8 A. 2d 302 (1939),
Pa. Stat. Ann., Tit. 12, § 1583 (1953).