"WE EXPRESS NO VIEW ON THIS ISSUE": THE STANDARD OF PROOF FOR THE ELEMENT OF FALSITY IN A NEW YORK PUBLIC OFFICIAL/FIGURE DEFAMATION ACTION

St. John's Law Review, Winter 2007 by Weininger, Daniel William

Realizing that they applied the actual malice rule to cases that the New York Times Court would have found unimaginable, the justices overruled Rosenbloom in Gertz v. Robert Welch, Inc.116 The Court held that a private person involved in a matter of public interest would no longer be required to prove actual malice.117 The Gertz case arose when Elmer Gertz was retained as a lawyer for a family whose son was killed by a Chicago police officer.118 Although the police officer had been convicted of second degree murder, the youth's family hired Gertz to pursue a civil action against the officer.119 The respondent published a magazine entitled "American Opinion," which purported that there was a communist conspiracy to besmirch and destroy American law enforcement.120 Respondent's magazine ran a piece claiming that Gertz played an integral role in this communist conspiracy.121 The article called Gertz a "leninist" and "Communist-fronter" and accused him, along with several communist organizations, of planning the riotous demonstrations at the 1968 Democratic Convention in Chicago.122 The managing editor of the publication made no effort to investigate the facts asserted in the piece and ran the story despite its inaccuracies.123

Gertz then filed a diversity defamation action, claiming that respondent "injured his reputation as a lawyer and a citizen."124 After the jury returned a $50,000 verdict in Gertz's favor, the district court judge issued a judgment notwithstanding the verdict for the defendant-respondent.125 The district judge concluded that the New York Times standard applied to private individuals involved in matters of public interest.126 When Gertz appealed to the Seventh Circuit Court of Appeals, the appellate court affirmed. Although they doubted the lower court's characterization of Gertz as a private person,127 the judges believed that the Court's decision in Rosenbloom required them to apply the New York Times standard to both public officials/public figures and private persons involved in matters of public concern.128

The United States Supreme Court disagreed and reversed the determination of the Seventh Circuit Court of Appeals. It held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual."129 Concerned that private persons would be unable to marshal the same resources as public officials/figures in combating the validity of injurious defamatory statements, the Court believed that the state had a far greater interest in protecting the character of private persons.130 Its decision clearly pronounced that "free press and free speech guarantees [do] not outweigh the private individual's right to collect damages for an injured reputation."131

Gertz clarified two main propositions. First, as already stated in New York Times, absolute liability for defamatory statements was per se unconstitutional. second, state courts would be permitted to use the actual malice standard for private persons involved in matters of public concern or a less culpable standard as long as "the private plaintiff would at least have to prove negligence or 'fault.'"132 This discretionary authority accorded state courts the necessary breathing room to recognize "the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shield [ed] the press and broadcast media from the rigors of strict liability for defamation."133