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The Supreme CourtÕs heavy hand:
The reversal of libel decisions
by Mike Farrell
Doctoral student
University of Kentucky, College of Communications
3602 Glenn Ave., Covington, 41015
859-431-2057 (home)
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submitted to AEJMC Law Division
March 31, 2000
The Supreme CourtÕs heavy hand:
The reversal of libel decisions
The Supreme Court has near-total control of its docket, each year considering less than 100 of the seven thousand appeals it receives. When the Court grants certiorari, it is a signal the justices are more likely to reverse the decision of the lower federal court or the state court. An earlier study found the Supreme Court reversed the lower court in more than 60 percent of the cases it decided between 1953-90. The reversal figure soars to 80 percent when the cases involve libel. This paper seeks to explain why the justices have been more inclined to change rulings in libel cases and the implications for the media.
The Supreme CourtÕs heavy hand:
The reversal of libel decisions
When the Supreme Court of the United States announces that it will review a lower court decision, the justices are signaling they are more likely to reverse that ruling than to uphold it. A survey of decisions in cases that were argued orally before the nationÕs highest court from 1953-90 found that the Court reversed the lower court ruling in 62.9 percent of those cases. But in 28 libel cases argued between 1964-91, centering on the freedom of the press clause of the First Amendment, the High Court reversed lower courts in 82.1 percent of the cases, 19.2 percentage points higher than the average.
This greater propensity to overturn libel decisions may be explained by the CourtÕs emphasis on cases dealing with civil liberties since World War II and the attitudinal model of Supreme Court decision-making. Political scientists who study the judicial branch point to the reversal rate as evidence of the proclivity of justices to decide cases based not solely on the facts of the case, the meaning of the Constitution, the law and previous Court decisions, but also according to their own policy goals.
This paper will show that the justices, facing lower court rulings that disagreed with their own policy preferences, voted to accept First Amendment libel cases for review, a process known as granting certiorari, so that the nationÕs highest court could Òset the record straight.Ó This explains the high reversal rate on libel cases from 1964-91. The year 1964 is an appropriate starting point because New York Times v. Sullivan, which was decided that year, began a dramatic change in the law of defamation, applying the First Amendment to this area of the statesÕ judicial authority for the first time. An examination of the CourtÕs decisions starting with New York Times shows the Court heard libel cases that allowed it to change the nature of First Amendment jurisprudence. But within a decade, the political conditions in the country changed, and as justices retired they were replaced by more conservative justices. As this paper will show, the majority of the Court moved from favoring more First Amendment rights under the Warren Court (1953-69) to favoring fewer First Amendment rights under the Burger court (1969-86) and under the current Rehnquist court (1986- ).
Explaining justicesÕ voting records
The attitudinal model argues that on issues before them, the justices cast their votes by considering the facts of the case consistent with their own public policy goals and attitudes. Thus, justices who hold liberal philosophies are more likely to cast votes for liberal outcomes and justices who hold conservative philosophies are more likely to cast conservative votes. In their book, Supreme Court Decision Making, David W. Rohde and Harold J. Spaeth explained this practice:
The primary goals of Supreme Court justices in the decision-making process are policy goals. Each member of the Court has preferences concerning the policy questions faced by the Court, and when the justices make decisions they want the outcomes to approximate as nearly as possible those policy preferences.
Political scientists argue members of the Supreme Court are able to vote in this manner because they are virtually immune from pressure to do otherwise. Justices are appointed to the Court for life, which means they are not accountable to voters and are virtually immune from sanctions from those who confirm them. They also comprise a court of last resort that controls its own docket. Many do not worry about implications of their votes like other office-holders because they are almost certain not to seek higher office. And while political scientists argue that the Supreme Court is somewhat constrained by its need for public support, polls generally show that the Court enjoys public confidence.
The attitudinal model stands in contrast to the legal model, which asserts that justices rely on Òthe facts of the case in light of the plain meaning of the statutes and the Constitution, the intent of the framers, precedent and a balancing of societal interests.Ó The legal model pictures Supreme Court justices as decision-makers constrained by precedent and the doctrine of stare decisis. The pattern of making a legal decision is characterized by (1) observation of a similarity between the current case and a previous decision, (2) identification of a rule of law inherent in the previous case and (3) application of that principle to the current case.
However, the legal model has a serious drawback. ÒUnfortunately, the legal model has heretofore failed the most basic test of a scientific model: It has not been tested and cannot be tested. This is because intent, plain meaning, and precedent are so nebulous that they can be used to support both sides of any case that comes to Court.Ó The fact that nine justices, relying on the same constitution and the same body of precedents, can ponder the facts of one case and fail to reach a unanimous result in so few of its cases argues forcefully that personal ideology and policy goals are at work.
Few cases, of course, make it to the nationÕs highest court. Since 1925, the Court has maintained control over its own docket. Except for lawsuits filed by one state against another and except for appeals in a few areas that are mandated by federal law, the justices are able to choose what cases they will review. For example, during the 1997 term, the Court delivered signed opinions in 91 of the 6,779 cases that were appealed to it. The Court selects those cases by a process known as the rule of four: The Court accepts a case for review when four of the nine justices vote to grant a petition of certiorari. That the Court reverses rather than affirms more of the decisions it reviews indicate that justices generally use their cert votes for those cases that they believe were decided incorrectly by a state or lower federal court. In some instances the Court accepts a case it believes was decided incorrectly by one federal appeals court in contrast to the decision of another federal appeals court.
The justices are able to pursue their policy preferences even in areas where precedents exist that disagree with their goals. The justices labor at length to show how the case at hand differs from a precedent so that they can rule consistent with their beliefs and yet not appear to be overturning previous decisions. The practice is known as ÒdistinguishingÓ the current case from the precedent. The way they work to ignore a precedent is illustrated by Lalli v. Lalli, decided in 1978. In that case, the Court took pains to distinguish that case from Trimble v. Gordon, which had been decided just 18 months earlier by the same nine justices. Lalli arose from a New York law that bars illegitimate children from inheriting their fathersÕ estates unless a father who left no will had gone to court and established his paternity within two years of the childÕs birth. In Trimble, the Court had overturned an Illinois law that allowed illegitimate children to inherit only from mothers who died without a will, not from will-less fathers. The justices who voted to uphold the New York law in Lalli ruled the case was different because Òeven a judicial determination of paternity was insufficient to permit inheritanceÓ in Illinois, whereas Òthe marital status of the parent is irrelevantÓ to New York. Despite the fact that both cases were about illegitimate children and the estates of their natural parents who died without a will, the Court found Òa related differenceÓ in the purpose of the two laws. Illinois was concerned with Òencouraging legitimate family relationshipsÓ while New York was trying Òto provide for the just and orderly disposition of property at death.Ó To further illustrate the inconsistency, consider that the same four dissenters in the Trimble decision ended up on the winning side in the Lalli case. The one justice who made the difference was Justice Lewis Powell, who wrote both decisions and struggled to show how the cases were different.
A more drastic strategy allows the justices to overturn a precedent. While a study published in 1991 found that more than 80 percent of the constitutional arguments raised by Justice William Brennan and Chief Justice William Rehnquist in majority opinions were based on precedent, the Court still overturned an average of 2.8 precedents per year between 1953 and 1990. That precedents can be overturned or the issue of a case strained to the breaking point so that it is unlike what should be a controlling precedent supports the argument that the policy goals of the justices are critical to the way the Court will rule. Thus, when the Court majority heads right -- for example, when conservative Republican presidents fill all Court vacancies for 25 years -- the decisions are likely to follow.
At the same time, because of their policy preferences, the justices are also likely to select cases for the CourtÕs docket in areas of the law that most interest them. A sampling of the caseload of the Court shows that civil liberty cases -- criminal procedure, civil rights, First Amendment issues, due process and privacy -- made up fewer than 10 cases per year until 1960. That year, the justices granted cert petitions in 22 cases involving the Bill of Rights; five years later, the number was 15, and in 1970 it was 30. The numbers dropped back into single digits in 1990. A 1975 study found that since the end of World War II, two-thirds of the cases reviewed by the Supreme Court concerned civil liberties and economics. The selection of First Amendment cases gave the justices more opportunity to pursue their policy goals, which generally meant reversing lower court decisions.
C. Herman Pritchett initiated the study of the voting behavior of justices in his book The Roosevelt Court (1948). Using the CourtÕs non-unanimous decisions from 1937-47, he studied the CourtÕs ideology and found that a host of internal factors affected the ways the justices voted. The theoretical assumptions of the study, although not described as a model, were outlined in his introduction: ÒThis book, then, undertakes to study the politics and values of the Roosevelt Court ... (acknowledging that the justices) are motivated by their own preferences.Ó While some scholars argue that categorizing the ideology of a justice on the basis of his votes is tautological -- that is, it is redundant to argue that a justiceÕs voting record can be examined to discover ideology since votes are the result of ideology -- others contend it is the most reliable way to measure a justiceÕs beliefs. C. Neal Tate argues that classifying a justiceÕs position is now routine in studies of judicial decision-making:
I will compare Supreme Court justicesÕ voting percentages because the percentages are superior to any other measurement of the voting ideologies of the justices which might have been appropriate for this analysis. The percentages are simple, robust measures of the behavior of the justices across their entire careers. They constitute macro-level measures of the central tendencies of the justicesÕ voting. In addition, the percentages appear to have strong face validity as measures of what scholars and lay observers mean when they label particular justices Òliberals,Ó ÒconservativesÓ or Òmoderates.Ó
In this paper, 28 libel decisions handed down by the Supreme Court of the United States were examined. The votes of the individual justices were charted to construct their voting records. A vote for the media was considered a vote for more First Amendment rights. The records of the individual justices were then compiled across their careers, and then averaged to figure the CourtÕs inclination to support the First Amendment.
Examining policy preferences by Courts
The Warren Court -- led by Earl Warren, the former California governor who served as chief justice from 1953-69 -- presided over an era of liberal jurisprudence. This CourtÕs members were appointed by four presidents who were Democrats -- Franklin D. Roosevelt, Harry S. Truman, John F. Kennedy and Lyndon B. Johnson -- and a moderate Republican, Dwight D. Eisenhower, who admittedly was not ideological in his selection of nominees for the Court.
The records of the Warren Court justices in libel decisions reflect the liberal bent of that Court. The individual records for the full terms of the eight justices who served the latter years of the Warren Court stemmed from a low of 57 percent for Justice Byron White to 100 percent for Justices Hugo Black and William Douglas.
Justices Black and Douglas were the most liberal First Amendment voices on the Court. They often filed separate opinions in libel decisions in which they argued that the CourtÕs decision had not gone far enough to protect the media and that the actual malice doctrine of the New York Times v. Sullivan decision would prove unworkable. Justice Brennan, respected as the most consistent voice for the First Amendment and the author of the Sullivan decision, was at the center of many of the CourtÕs First Amendment decisions from 1964 until his retirement in 1990. He voted to extend First Amendment protection in 89 percent of the 27 libel cases in which he participated.
The Warren Court voted to extend First Amendment protection for the media in eight of the nine libel cases it considered between 1964-69. The single exception was a narrow 5-4 decision against a media defendant. But the appointment by President Nixon, who was not a friend of the media, of Warren Burger to replace Earl Warren as chief justice in 1969 signaled a change in the CourtÕs direction. The Burger Court considered 15 libel cases over the next 17 years and ruled for the media in seven cases, or 47 percent of them. Three holdovers from the Warren Court who served through the Burger years had the highest pro-First Amendment votes involving libel -- Brennan (89 percent), Thurgood Marshall (63 percent) and White (57 percent). (Justices Black and John Harlan both served until 1971 and Justice William Douglas stepped down in 1975). Justice Harry Blackmun (47 percent) had the highest rate of the Nixon appointees. Chief Justice Burger (40 percent) and Justices John Paul Stevens (25 percent) and Powell (18 percent) almost appear pro-media in contrast to Chief Justice Rehnquist, who has voted against the media 93 percent of the time in libel cases. The shift in direction did not happen immediately, of course, because the CourtÕs makeup changed gradually. Two years after BurgerÕs appointment, the Court extended First Amendment protection to a new high, but with a plurality decision signed by only three members that included, ironically, the new chief justice and President NixonÕs second appointee. The decision was subsequently reversed.
Three years after Chief Justice Warren stepped down, with four Nixon appointments sitting in the CourtÕs leather chairs, the media began losing First Amendment cases appealed to the High Court. The change was inevitable as Nixon and his Republican successors -- Gerald Ford, Ronald Reagan and George Bush -- nominated all of the justices (and lower federal court judges, except for the four years of the Carter presidency) for 24 years. With the exception of Justice Blackmun, the Republican-appointed justices of the Burger and Rehnquist courts were far less supportive of freedom of the press than the Warren Court justices they replaced.
The justice least supportive of the First Amendment is the Rehnquist, who was nominated to the Court as an associate justice in 1971 by President Nixon and elevated to the CourtÕs center chair in 1986 by President Reagan. Rehnquist has voted in support of freedom of the press in one of the 15 libel cases on which he has passed judgment. Justice Antonin Scalia, depicted as the CourtÕs most conservative member, has a higher percent of media support than Chief Justice Rehnquist. The Rehnquist Court reviewed four libel cases between 1986 and 1991. The media won but one of those cases.
Perhaps, as First Amendment attorney Bruce Sanford argues, it is even more significant that the Court has refused to accept a libel decision since 1991. In his latest book, DonÕt Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us, Sanford quotes Bob Sack, the former longtime counsel of The Wall Street Journal who was appointed to the U.S. Court of Appeals for the Second Circuit in 1998: ÒThe biggest news from the Supreme Court of the United States in the First Amendment area during the past decade has been the CourtÕs silence.Ó Sanford then expounds the point:
The silence has been mistakenly greeted in some news media quarters with relief. (These people anticipated far worse.) The judiciaryÕs silence reflects nothing more or less than the same cold disdain that permeates the public. If the judiciaryÕs overarching attitude toward the media in recent years could be summed up with a single maxim, it would be: ÔWhy should we give them any more First Amendment rights? They canÕt use the ones they have now with any responsibility.Õ
Voting records of individual justices
on libel cases before the U.S. Supreme Court
INDIVIDUAL YEARS ON VOTES for VOTES PRO-MEDIA JUSTICE COURT MEDIA AGAINST PERCENTAGE
Earl Warren 1953-68 8 1 89
Hugo L. Black 1937-71 13 0 100
William O. Douglas 1939-75 15 0 100
Thomas C. Clark 1949-67 8 1 89
John Marshall Harlan 1955-71 10 3 77
William J. Brennan Jr. 1956-90 24 3 89
Potter Stewart 1958-81 14 5 74
Byron R. White 1962-93 16 12 57
Arthur J. Goldberg 1962-65 3 0 100
Abe Fortas 1965-69 2 3 40
Thurgood Marshall 1967-91 12 7 63
Warren E. Burger 1969-86 6 9 40
Harry A. Blackmun 1970-94 9 10 47
William H. Rehnquist 1972- 1 14 7
Lewis F. Powell 1972-87 2 9 18
John Paul Stevens 1975- 3 9 25
Sandra Day O'Connor 1981- 2 7 22
Antonin Scalia 1986- 1 3 25
Anthony M. Kennedy 1988- 0 3 0
David H. Souter 1990- 0 1 0
It is no surprise that the CourtÕs record of favoring First Amendment defendants has declined as the Court has moved to the right under the influence of Republican appointees who have tended to be conservative. A comparison of the three courts, if they can be divided according to the term of the chief justice who presided, shows the Court has generally become less supportive of the First Amendment.
First Amendment Record (libel Only) by Court Era
Total Pro Pro- Votes Votes Pro votes
Era Cases Media Percent Pro* Con* Percent
Warren Court 1964-69 9 8 89% 64 7 90%
Burger Court 1969-86 15 7 47% 67 66 50%
Rehnquist Court 1986-91 4 1 25% 10 25 29%
* Reflects total votes of individual justices
Based on the changing ideology of the Court, it is not difficult to explain the higher percentage by which the Court has overturned lower and state courts in libel decisions. Justice WarrenÕs liberal Court accepted libel cases for review and overturned appellate court decisions as a way of protecting the press from assaults on its ability to cover the news, which is the chilling effect that libel exerts on the media. The Warren Court carved out a liberal record, expanding individual rights and freedoms in numerous areas. Between 1961-68, three out of every four rulings of the Court each term protected individuals and minorities against the government. But under the Burger Court, the percentage dropped below one of two cases annually except for one year.
As Republican presidents replaced the retiring members of the Warren Court with more conservative justices, the CourtÕs decisions moved from expanding First Amendment protection under Chief Justice Warren to reducing it under Chief Justice Burger. As lower courts followed the earlier Court decisions on libel, the conservative justices granted cert petitions so that they could narrow, without overturning, the libel doctrine enunciated in New York Times v. Sullivan and its progeny.
It would also follow that as President Reagan and President Bush appointed conservative judges to federal district courtrooms and the circuit courts of appeal and those conservative judges issued decisions that narrowed First Amendment protections, the justices of the Supreme Court found more and more decisions consistent with their own preferences, or, as Segal and Spaeth call them in their attitudinal model, policy goals. It was not necessary to overturn these anti-media decisions because they were consistent with the policy goals of the more conservative court. The Court could select those cases that gave the media more protection and reverse them, which is what it has done in two of the four libel cases it has decided. In the other two cases, the Court extended the protection of the media in one case and affirmed a lower court ruling that went against the media in another case.
The choice of cases further underscores the point. Beginning with its 1963 term, the Warren Court heard nine libel cases in six years, an average of 1.5 cases per term. The Burger Court reviewed 15 libel cases in 18 years. (Add in the splintered Rosenbloom v. Metromedia decision, and it becomes 16 cases in 18 years). The average is just under one case per year. The Rehnquist Court has heard four libel cases in 13 years, an average of one case every three years.
Libel factors
Current libel law in this country stems from New York Times v. Sullivan, decided in 1964 by the Warren Court. It is important to understand the case in its historical context. Justice Brennan, in writing the opinion of a unanimous Court, set the stage:
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
The nation was engaged in a great debate, a debate that had been forced upon the country in some measure by the same Supreme Court. Ten years earlier, in Brown v. Board of Education of Topeka, Kansas, a unanimous Court had overturned the 60-year-old doctrine that separate but equal was constitutional. Led by Chief Justice Warren, the Court had ordered the desegregation of the public schools and reasserted that position in a series of unanimous rulings. The decision added new legitimacy to the civil rights movement in this country, while engendering great hatred for the Court throughout the South. In fact, both President Eisenhower and President Kennedy were forced to use federal troops to convince Southern governors to follow the law. Some political scientists argue that the Supreme CourtÕs decision had little impact in resolving the civil rights crisis in this country. Others argue that the CourtÕs leadership had a dramatic impact and was consistent with increasing white public opinion that desegregation was unfair after scientists disproved arguments about biological inferiority.
While the Supreme Court is the highest court in this country, its power is not unlimited. The Supreme Court must rely on public opinion for support and on the other branches of the government to enforce and obey its arguments. ÒIt is this inability to independently enforce its decisions that underscores the importance of mass public opinion for the Court,Ó according to one political scientist. Thus, Chief Justice Warren could not order federal troops into Montgomery to confront Gov. George Wallace at the front door of a state university; he could not even order President Kennedy to do that. Only the president had that authority.
But the Court did have one ally in the fight to end desegregation in public schools. Stories in newspapers across the country, stories in the weekly news magazines and nightly television news -- all reporting on the sit-ins, the police brutality, the obstinate refusals of some southern leaders, and the bodies of those who had been murdered in the church bombings -- humanized the segregation fight and began to take a toll on the attitudes of white citizens all across the nation. The first libel lawsuit that the Court used to redraw the map was deeply embedded in this controversy.
L.B. SullivanÕs lawsuit against The New York Times was little more than a bold effort to make the Òliberal northernÓ media return to their own part of the country so that Southern racists could continue their fight to preserve their way of life without the media spotlight. The juryÕs verdict of $500,000 to the Montgomery, Ala., city commissioner was just the start. The mayor, another commissioner and a former commissioner had also sued the newspaper. In his concurring opinion in the decision, Justice Black said the lawyersÕ briefs in the case argued that 11 libel lawsuits were pending in Alabama against The Times seeking $5.6 million, and five had been filed against Columbia Broadcasting System seeking $1.7 million. The New York Times reported that actions by officials in three southern states were pending, and the damages could exceed $288 million.
In his concurring opinion, Justice Black, one of two southerners on the Court, warned that this effort in his home state of Alabama might be only the beginning:
The half-million dollar verdict does give dramatic proof, however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials.... Moreover, this technique for harassing and punishing a free press -- now that it has been shown to be possible -- is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers.
The Alabama Journal, MontgomeryÕs evening newspaper, had celebrated the decision, declaring in an editorial after the juryÕs verdict that the decision Òcould have the effect of causing reckless publishers of the North ... to make a resurvey of their habit of permitting anything detrimental to the South and its people to appear in their columns.Ó It included this warning: ÒThe Times was summoned more than a thousand miles to Montgomery to answer for its offense. Others newspapers and magazines face the same prospect. The only way to prevent such long distance summons is to print the truth.Ó
The truth, in the South, of course, was that separate but equal was just fine. But the Court saw that more was at stake in the Sullivan case than the First Amendment and the financial well-being of The New York Times. The future of the civil rights movement was also at stake. The Court recognized that if Sullivan prevailed in his effort to punish the media, then newspapers and TV networks would be reluctant -- if not financially unable -- to continue covering the civil rights efforts, and the South might even ultimately prevail in its efforts to fight off the desegregation tide. It is not difficult to speculate that if the civil rights effort had not been central to The New York Times case and if the Court had not been a central player in that battle, the decision might have been different. It is conceivable that the Court might even have failed to grant cert, leaving defamation as it had been, a matter for state, not federal, courts. But protecting the role of the media in reporting on the desegregation fight was consistent with the CourtÕs policy goal of enforcing its decision in Brown v. Board of Education.
After oral arguments in the lawsuit against The New York Times, the nine justices agreed that the decision must be overturned. Chief Justice Warren assigned the writing of the decision to Justice Brennan rather than Justice Black, who had made a cause of the First Amendment, because he felt BrennanÕs work might be more conciliatory and retain the unanimous support. Justice Black was miles ahead of the conservative Justice Harlan in his philosophy of the absolute nature of the First Amendment in debate about public officials, and Warren wanted a decision that Harlan could support. Thus he assigned the decision to Brennan, who was more likely to write an opinion for the Court that the other eight justices could subscribe to as the CourtÕs opinion, rather than losing votes because the decision went too far.
Even so, BrennanÕs first draft went beyond what the justices had agreed to in conference, but through five drafts, Brennan managed to retain all of the votes except for Harlan. The problem for the New Yorker was that Brennan proposed taking the unusual step of not remanding the case for proceedings consistent with the decision, but simply overturning the libel award and closing the case. Brennan and most of the other justices were convinced that the Alabama courts would simply find another way to award Sullivan a victory in order to punish The Times and the media. Justice Harlan finally signed the decision on the night before it was announced.
In the aftermath of New York Times v. Sullivan, the media won almost all of the cases before the High Court. Of the first nine libel cases the Court heard under Chief Justice Warren, media defendants won eight times, and all eight of the decisions reversed lower court decisions. Under Chief Justice Burger, the media won the first four libel decisions, and each of them was a reversal. But the tide turned in 1974. The next five cases were media losses and reversals of lower court decisions.
Of the first 20 libel decisions, the Court reversed the lower courts 18 times, a reversal rate of 90 percent, 30 points above the average. Of those 20 decisions, the media won 14 of the first 15 cases and lost the last five. The change in the ideological makeup of the Court, compounded by the loss of the two First Amendment liberals and their voices, allowed the dramatic change in the Court and the resulting high reversal rate.
By 1974, civil rights was pretty much off the CourtÕs agenda. The media were no longer essential to the purpose of the Court in seeing an end to desegregation of schools. Dramatic events were changing America and the Court. In Watergate and again in the Vietnam War opposition, the media impact on American government exceeded anything before or since. In a 1975 speech before the Yale Law School Sesquicentennial Convocation, Justice Potter Stewart, who voted for the media 71 percent of the time during his service on the Warren and Burger courts, alluded to those two events:
It was less than a decade ago -- during the Vietnam years -- that the people of our country began to become aware of the twin phenomena on a national scale of so-called investigative reporting and an adversary press -- that is, a press adversary to the Executive Branch of the Federal Government. And only in the two short years that culminated last summer in the resignation of a President did we fully realize the enormous power than an investigative and adversary press can exert.
The public opinion polls that I have seen indicate that some Americans firmly believe that the former Vice President and former President of the United States were hounded out of office by an arrogant and irresponsible press that had outrageously usurped dictatorial power. And it seems clear that many more Americans, while applauding the service performed by the press in exposing national wrong-doing at the highest levels of our national government are nonetheless deeply disturbed by what they consider to be the illegitimate power of the organized press in the political structure of our society.
While Justice Stewart went on to defend the role the press played in its coverage of the Vietnam dissent and the Watergate investigation that led to the resignation of the president, he obviously could not have been speaking for all Americans or the entire Court.
The power of the press that the Supreme Court set out to protect from its enemies in New York Times v. Sullivan was not insubstantial. That had become abundantly clear, as Justice Stewart pointed out in 1975, just months after President Nixon had climbed the steps of his aircraft, saluted the public one last time and returned to California as the first American president to resign from office. As people sorted out what happened, it was clear that journalists had played a leading role. Not everyone liked the result or the way it had been obtained.
Stephen Holmes, professor of political science at the University of Chicago, put in focus just what was going on as attitudes toward the media changed:
The continuing debate about libel law helps us focus attention on a dilemma bedeviling all regulation of the media. The freedom of the press is also the power of the press, including the power to harm. Any institution strong enough to act as an effective counterweight to government is also strong enough to inflict serious damage on innocent bystanders. ... The common law of libel has traditionally aimed at balancing the speakerÕs interest in freedom with the interest protected by rules inhibiting communication. Unfortunately, this is a very unstable balance.
Even as Justice Stewart was speaking, the Court was changing. With the retirement of the two First Amendment liberals, Justice Black in 1971 and Justice Douglas in 1975, gone were not only two certain votes for the media but the power of their arguments as well. Even though Justice Brennan, the author of New York Times v. Sullivan, remained, his position was not as liberal as that of Black and Douglas, the absolutists. With their retirements from the Court, BrennanÕs position moved from being part of a centrist majority to one of the CourtÕs most liberal members. He became, not the central voice seeking to gather votes but a voice left of center trying to limit the damage to the First Amendment decisions of the Warren Court. Some thought he was better suited at building a coalition than articulating a philosophical position.
At the same time, the new Court appointees were far to the right of the men they replaced. Justice RehnquistÕs First Amendment record is 93 percentage points lower than than of Justice Black, whom he replaced. The chart below, showing the percentage of a justiceÕs votes on libel cases and the CourtÕs average as its makeup changed, makes clear how dramatically the shift was occurring. When the media began losing libel cases in 1974, the road already had been paved. The turning point was the appointment of Justices Rehnquist and Powell by President Nixon in 1971.
The Warren Court, through its decisions, supported the media, then under assault by many of the same hate-mongers who were attacking the Court. The justices believed that even some error was inevitable in the aggressive reporting on government. Two of its members argued that the Founding Fathers never intended for libel to be used against newspapers for comment on public issues, believing that libel law could be used by public officials to punish their critics. Along came the Burger Court which, especially in the area of libel, was more reticent to stand up for the media that had attacked the conduct of a war and helped drive from office a president who had appointed four members of that Court. The Burger Court began balancing the rights of the media under the First Amendment against the rights of the individual to his or her reputation.
Stephen Holmes discussed the problem from the standpoint of the journalist: ÒSome journalistic negligence deserves to be chilled. But how can this reasonable goal be achieved without overprotecting malefactors, private as well as public, from their most annoying critics?Ó
Changing support for the First Amendment
on libel decisions
YEAR YEAR¶ JUSTICEÕS* COURTÕS COURT
JUSTICE APPOINTED RESIGNED PRO-1ST % AVERAGE RECORD
Warren (2) 1969 89
Black (5) 1971 100
Douglas (6) 1975 100
Clark (1) 1967 89
Harlan (4) 1971 77
Brennan (10) 1990 89
Stewart (7) 1981 74
White (12) 1993 57
Goldberg/Fortas 1964 (3) 1969 63 83 7-1
(1) Marshall 1967 (11) 1991 63 79 1-0
(2) Burger 1969 (8) 1986 40
(3) Blackmun 1969 (13) 1994 47 71 4-0
---------------------------------------------------------------------------------------------------------------
(4) Rehnquist 1971 7
(5) Powell 1971 (9) 1987 18 59 1-1
(6) Stevens 1975 25 53 0-2
(7) O'Connor 1981 22 48 0-4
(8) Scalia 1986 25 49 2-3
(9) Kennedy 1988 0 50 1-2
(10) Souter 1990 0 41 0-1
*This reflects justiceÕs votes only on libel.
¶ This reflects the order in which justices resigned.
The same number in the first column denotes the replacement.
With the departures of Justices Marshall (1991), White (1993) and Blackmun (1994), the last three members of the Court with pro-media percentages near or above 50 percent, the current rating of the Court is 16 percent. This number is not as accurate a gauge as earlier figures because three of the current members -- Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer -- have not participated in a libel case on the High Court. Of the six other justices, no one has voted for the media more than one out of four cases.
One other factor helps explain this sea change in judicial attitudes toward the First Amendment. Public attitudes toward journalists have also changed. The Gallup Poll began asking in 1973 questions about public confidence in public institutions: ÒWould you tell me how much respect and confidence you, yourself, have in newspapers?Ó ÒWould you tell me how much respect and confidence you, yourself, have in the Supreme Court of the United States?Ó In 1973, when attitudes within the Court were starting to run against the media, 39 percent of those polled said they had a great deal or quite a lot of confidence in newspapers, while 22 percent said very little or none. Six years later, the positive vote reached 51 percent. Two years later, the number plummeted to 35. In the last 15 years, the approval has meandered from 31-37 percent. With than kind of public support and the CourtÕs own support in the 50s, the Court faced little public outcry that would deter it from limiting protection for the media.
With the foundation of media support eroding, what emerged in libel cases was a balancing test between the rights of the press guaranteed by the First Amendment and the rights of an individual to his privacy. Or, put another way, it was a debate about the power of the press, then seen in some respects as powerful as government itself, and the right of an individual to his reputation. This balance had been recognized by Justice Stewart in 1966 in a passage -- in a case the media won -- quoted often by later decisions:
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to less recognition by this Court as a basic of our constitutional system.
Another factor that emerged was that the press was no longer viewed, as the Warren Court had seen it in New York Times v. Sullivan, as a voice for the poor and minorities. Today, the opposite is true, according to Judith Lichtenberg, a senior research scholar at the University of Maryland. ÒThe press, once thought of as an antidote to established power, is more likely to reinforce it, because access to the press -- that is the mass media -- is distributed as unequally as are other forms of power. It is not, of course, that the less powerful never speak in the mass media ... But the deck is stacked against them, because the press is itself a formidable power in our society, allied intimately ... with other formidable powers.Ó
In his concurring opinion in Dun & Bradstreet v. Greenmoss Builders, Chief Justice Burger, with some apparent sarcasm, showed how the pendulum had swung: ÒThe great rights guaranteed by the First Amendment carry with them certain responsibilities as well. Consideration of these issues inevitably recalls an aphorism of journalism that Ôtoo much checking on the facts has ruined many a good news storyÕ.Ó
In his concurring opinion in that decision, Justice White, one of the last members of the New York Times majority still on the Court, expressed his own concerns about that decision:
The New York Times rule thus countenances two evils: first, the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. In terms of the First Amendment and reputational interests at stake, these seem grossly perverse results. ... But if protecting the press from intimidating damages and liability that might lead to excessive timidity was the driving force behind New York Times and Gertz, it is evident that the Court engaged in severe overkill in both cases.
The change in direction
What happened in the aftermath of its 1964 decision in New York Times v. Sullivan was that the Court had to take cases that would clarify the meaning of that landmark case and explore just how far the doctrine of actual malice would apply. Justice Brennan himself outlined the process in his dissent in Dun and Bradstreet v. Greenmoss Builders:
Our First Amendment libel decisions in the last two decades have in large measure been an effort to explore the full ramifications of the New York Times Co. v. Sullivan principles. Building on the extension of actual malice to "public figure" plaintiffs in Curtis Publishing Co. v. Butts, the Court in Rosenbloom v. Metromedia, Inc., and Gertz v. Robert Welch, Inc., focused largely on defining the circumstances under which protection of the central First Amendment value of robust debate of public issues should mandate plaintiffs to show actual malice to obtain a judgment and actual damages; the Court settled on a rule requiring actual malice as a prerequisite to recovery only in suits brought by public officials or public figures.... We have also recognized, however, that the First Amendment requires significant protection from defamation law's chill for a range of expression far broader than simply speech about pure political issues.
Just eight months after New York Times, in November 1964, the Court issued a second unanimous opinion extending actual malice protection to public officials charged with criminal libel. A third unanimous opinion was issued in 1965, overturning a case in which the jury was not correctly instructed about malice. The first break in the solidarity came in 1966, when the Court began defining the meaning of Òpublic official.Ó The newest justice, Abe Fortas, wrote his first dissent in the case. Justice Harlan also dissented in part.
In 1967, the Court handed down two more unanimous decisions. At the same time, however, the Court ruled against a media defendant, contending that the plaintiff had proven actual malice. Even so, the media gained ground in that decision, for the Court identified a new class of figures, not public officials but public figures, and announced that they, too, needed to prove actual malice when suing the media.
During the next year, the final term of the Warren Court, two more decisions applied the actual malice doctrine, one to a teacherÕs firing and the other to a union workerÕs statements about a public official. The former was unanimous; only Justice Fortas dissented in the latter.
No libel cases were decided by the Burger Court until 1971. In that calendar year, the Court produced sizable majorities in four of the five libel decisions, all of which it decided in favor of the media. In Ocala Star-Banner Co. v. Damron, the Court held that a charge of criminal conduct against a candidate for public office, no matter how remote in time or place, was relevant to his fitness for office. In Monitor Patriot Co. v. Roy, a similar case, the Court held that the actual malice rule applies to candidates as well as elected officials. The vote was unanimous in both cases, although Justices Douglas and Black dissented in part to express again their conviction that the Constitution gave the media an absolute protection in lawsuits such as those before the Court. Only Justice Harlan dissented in Time, Inc., v. Pape, when the Court ruled that omission of the word ÒallegedÓ in a report on a lengthy government report was not evidence of libel. In Greenbelt Cooperative Publishing Association v. Bresler, in which only Justice White dissented in part, the Court held that the word ÒblackmailÓ was an epithet and not an exact term, and therefore protected by the First Amendment.
But in the fifth case, Rosenbloom v. Metromedia, the Court was fractured into a multiplicity of opinions. While Justice Douglas did not participate, the vote was 3 to affirm, 3 to reverse and 2 in the middle concurring in the result but not the reason. As a result, the lower court decision was upheld. Justice Brennan wrote the ÒwinningÓ plurality decision, which was joined by two Nixon appointees, Chief Justice Burger and Justice Blackmun, arguing that a private figure involved in a public matter should be required to prove the media defendant acted with reckless disregard for the truth. The Rosenbloom case involved a radio news report about police raids on what the station referred to as a Òsmut distributorÓ and a Ògirlie-book peddler.Ó The magazine distributor later was acquitted of criminal obscenity charges. The three-justice plurality held that the magazine distributor had to prove actual malice because the issue that brought him into the news was a Philadelphia police action, which was of public interest. Justice Brennan wrote that the status of the plaintiff, which had become the turning-point for libel suits since New York Times v. Sullivan, should not be the primary issue in lawsuits that revolve around media coverage of the news:
Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of the various levels of government.... 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 ÔvoluntarilyÕ choose to become involved. The publicÕs primary interest is in the event; the public focus is on the conduct of the participant and the context, effect, and significance of the conduct, not the participantÕs prior anonymity or notoriety.
That decision was the high-water mark for the First Amendment. Justice Black, the First Amendment liberal with the 100 percent record, was not willing to go as far as Justices Brennan, Blackmun and Burger went. He wanted to limit the public concern matter to "official actions of public servants." He also lobbied again to end The New York Times rule. Ò As I stated in Curtis Publishing Co. v. Butts, Ô[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 Amendment was intended to leave the press free from the harassment of libel judgmentsÕ." Justice White, who provided the fifth vote, conceded he didnÕt agree with anyone else, including the dissenters. He agreed with the result, holding only that the radio station should be protected in its coverage of the police. But he was clearly unwilling to follow the Brennan-Blackmun-Burger line. It was Justice Harlan, writing in his final libel decision, who ultimately proved victorious. He suggested that the states had an interest in deciding what weight should be given to the harm of a private reputation. The Court adopted that position three years.
In the seven years after New York Times, 1964-71, the Court issued 13 decisions in which it applied the principles of that decision to libel disputes. In all but one, solid majorities voted to extend the First Amendment protection given the press. As lower courts struggled either to understand actual malice or steadfastly refused to apply it, the Court was reversing decisions. Only the plurality decision in Rosenbloom v. Metromedia, which was subsequently overturned, and Curtis Publishing v. Butts, which was decided with Associated Press v. Walker, affirmed lower court rulings.
But the new majority emerging on the Court had new policy goals, and those goals did not include focusing on decisions that broadened First Amendment protection of the media, especially as it reported on the civil cights movement. With the arrival of the Nixon appointees, the country was waiting for the Court to make an abrupt right turn. That turn came but not immediately, according to one commentator:
During this and the ensuing period, divisions among justices were too great for the Court to find a coherent philosophical perspective. Justices Brennan, Marshall, and Douglas continued until 1975 to form a solid liberal bloc, needing only two votes to gain a majority, while Burger and Rehnquist occupied the opposite side of the political philosophical perspective. Justices Stewart, White and Powell were pragmatic moderates, voting with either side, and Justice Blackmun, originally seen as conservative, moved more toward the liberals over time. During these early Burger years, then, the influence of the Warren liberals remained strong ....Ó
Intent on balancing the reputational interests of individuals, the Court began reversing decisions that followed the New York Times rule, narrowing its meaning without overturning it, despite calls from Justice White, who thought it was time to throw it on the legal scrap heap. In the first case, Gertz v. Welch, the justices by a narrow 5-4 margin voted that just because a lawyer represented a client in a high profile murder case, he was not a public figure. This ruling made it easier for the plaintiff to collect damages because he did not have to prove actual malice. As noted above, the decision returned to the state some of the authority to determine the standards to which the media should be held in libel lawsuits and also laid to rest the principle of the Rosenbloom decision that the nature of the event was more important than the status of the plaintiff in determining a standard for the conduct of the media.
The media lost another case when Time magazine was found to have libeled Mary Alice Firestone in reporting that her divorce was granted on the grounds of adultery. She was described in the words of Justice Rehnquist, who wrote the decision ruling that she was not a public figure, as the wife of ÒRussell Firestone, the scion of one of America's wealthier industrial families.Ó In a passage that Justice Rehnquist quoted in his decision, the trial judge who granted the divorce describes the marriage:
According to certain testimony in behalf of the defendant, extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in plaintiff's behalf, would indicate that defendant was guilty of bounding from one bed partner to another with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida . . . .
In his dissent, Justice Marshall quoted from the trial record to dispute the concept that Mrs. Firestone was a private figure and had not thrust herself into a public controversy, in the terms of the Gertz decision: ÒThe 17-month trial and related events attracted national news coverage, and elicited no fewer than 43 articles in the Miami Herald and 45 articles in the Palm Beach Post and Palm Beach Times. Far from shunning the publicity, Mrs. Firestone held several press conferences in the course of the proceedings.Ó A good deal of the CourtÕs decision is taken up debating whether Mrs. FirestoneÕs divorce was granted on grounds of adultery and whether Time could figure it out if the courts could not.
Another decision, Hutchinson v. Proxmire, was announced in 1979, the fourth straight loss. The defendant this time was not the media, but U.S. Sen. William Proxmire of the famous Ògolden fleece awardsÓ given to those whom he felt wasted taxpayer money. A researcher with a federal grant of $500,000 studied how monkeys clenched their jaws. The study drew the attention of the senator, who in a press release criticized this use of taxpayer money. The Court ruled 8-1 that the researcher was not a public figure and that Sen. Proxmire lacked congressional privilege for the press release he issued. Only Justice Brennan dissented when the Court reversed a lower courtÕs dismissal of the suit.
The tide had certainly turned. Justice Rehnquist was now a central player in the First Amendment debates, and he was winning and thus limiting the protection afforded journalists in New York Times v. Sullivan. Most of his early victories were reversals of lower court decisions.
Conclusion
The higher than average reversal rate for First Amendment cases involving libel reflects the changing policy goals of a Supreme Court that has moved from the liberal justices of the Warren Court, who sought to expand protection for the media from libel claims, to the much more conservative Rehnquist Court, which has expanded protection of private reputations. Perhaps no plainer illustration of just how conservative the sitting Court is in contrast to the Warren Court than the figure of the CourtÕs senior associate justice. John Paul Stevens is the mediaÕs most supportive justice among the six with records on libel issues. And he has voted for the media in three of the twelve cases he has considered.
While the New York Times rule laid down in 1964 by the Warren Court to protect the media from a legal assault by the voices of hate in the South still stands, it no longer means what it did at its highwater mark in 1971 because the Burger Court began whittling it down and the Rehnquist Court has continued that. The Warren Court reversed libel decisions appealed to it in order to give protection to the media. The Burger Court, after the liberals began retiring and a Republican president began appointing conservative members, reversed libel decisions to reduce the protection for the media and increase protection for the reputation of the individual.
This record reflects the individual policy goals of the justices, first in establishing a set of federal standards for libel and then, once they were established and a conservative Court took over, reversing the field as much as possible without overturning the historic New York Times decision. Their behavior is consistent with the attitudinal model of judicial decision-making. The CourtÕs commitment to protect the national debate in the context of its decision aiming at ending racial segregation waned as justices less committed to integration came to the bench. At the same time, the CourtÕs decisions reducing protection for the media came against the backdrop of the stories investigating the break-in at the Democratic Party offices at the Watergate and the subsequent resignation of President Nixon. It is not hard to imagine that in the chambers of the Marble Temple, some of the justices concluded the media were becoming too powerful and no longer needed all of the protection that ensured coverage of the civil rights movement. At the same time, the news media were losing respect in the country, as reflected in the public opinion polls.
The point is underscored by the CourtÕs 1989 libel decision in Harte-Hanks v. Connaughton. Libel first came under the principles of the federal Constitution in New York Times v. Sullivan. One rationale of that decision was that the First Amendment left no room for seditious libel. The decision seemed to make it difficult for public officials to win a libel judgment. Justice Brennan, in that oft-quoted passage, explained:
(W)e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
In other words, if you run for public office, you can expect the media to turn up the heat when others criticize what you do. The decisions that followed New York Times v. Sullivan extended the actual malice rule to public figures and for a brief moment, public events. Then the Court began tackling the issue of who was a public official/public figure and who was a private person. But 25 years after New York Times, in Harte-Hanks v. Connaughton, the Court held that an elected public official was able to prove actual malice, not because the newspaper knew the truth and printed a lie, but because it avoided seeking the truth thoroughly. The decision essentially contradicted this passage from Justice WhiteÕs 1968 opinion for the Court in St. Amant v. Thompson:
These 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 permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
In Connaughton, the newspaperÕs failure to interview certain witnesses and listen to certain tape recorded interviews was deemed by Justice Stevens as clear support of a finding of actual malice. The standard had clearly been eroded.
All of this is important because of its impact on the press and its reporting. A new study found that lawsuits filed or even threatened by public officials has a significant chilling effect on the aggressiveness of a newspaper. By lowering the obstacles for public officials to win libel lawsuits, the Court increases the likelihood that reporters and editors will be intimidated and the press weakened in its role of serving as a watchdog on government activity.
The 2000 presidential election will be significant for the future of libel litigation because the next president will almost certainly have the opportunity to appoint several new justices. The next president likely will nominate a new chief justice, for Chief Justice Rehnquist is 75 and has served almost 30 years. Justice Stevens turns 80 this spring, and both of the women on the Court have had bouts with cancer. Conceivably, the appointment of three or four justices could have as great an impact on the CourtÕs attitude toward libel and the media as President NixonÕs appointments, which turned the tide, especially after 1971.
CASES CITED
Associated Press v. Walker, 388 U.S. 130 (1967)
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967)
Bose Corp. v. Consumers Union of the United States, 466 U.S. 488 (1984)
Calder v. Jones, 465 U.S. 783 (1984)
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)
Garrison v. Louisiana, 379 U.S. 64 (1964)
Gertz v. Welch, 418 U.S. 323 (1974)
Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970)
Harte-Hanks v. Connaughton, 491 U.S. 657 (1989)
Henry v. Collins, 380 U.S. 356 (1965)
Herbert v. Lando, 441 U.S. 153 (1979)
Hustler Magazine v. Falwell, 485 U.S. 46 (1988)
Hutchinson v. Proxmire, 443 U.S. 111 (1979)
Keeton v. Hustler Magazine Inc., 465 U.S. 111 (1984)
Letter Carriers v. Austin, 418 U.S. 264 (1974)
Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)
New York Times v. Sullivan, 376 U.S. 254 (1964)
Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971)
Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767 (1986)
Pickering v. Board of Education, 391 U.S. 563 (1968)
Rosenblatt v. Baer, 383 U.S. 75 (1966)
St. Amant v. Thompson, 390 U.S. 727 (1968)
Time, Inc. v. Firestone, 424 U.S. 488 (1976)
Time, Inc. v. Pape, 401 U.S. 279 (1971)
Wolston v. Readers Digest Association, 443 U.S. 157 (1979)
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