Libel and the First Amendment

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A central historical question about the first amendment is to what extent it embodied the received eighteenth-century legal traditions of English law and governmental practice as they were reshaped and renewed in the colonial, revolutionary, and formative periods in America. Or was the amendment a break from these traditions? This issue can be stated either as a question of the intent of the Framers and ratifiers or as a matter of the normative impact of an authoritative text, elaborated in our century within an institutional matrix of judicial review radically different from that of the eighteenth century on either side of the Atlantic. However the question be stated, the historical problem is in essence whether the First Amendment is to be regarded as expressing a principle of continuity with the received legal tradition or as constituting a declaration of independence from English law, thereby projecting the American law of freedom of expression on a path of autonomous development.

The general view emphasizes continuity, both as a matter of the original understanding of the Framers of the First Amendment and as a matter of the amendment's later—much later—doctrinal elaborations. Indeed, we conventionally measure continuity or discontinuity by reference to the basic conceptual dichotomy of the English legal tradition, as formulated by william blackstone, the oracle of the common law for the framing generation:

where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law … the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity [ Commentaries on the Laws of England, 1765, Bk. 4, chap. II, pp. 151–52].

The issue whether the First Amendment embraced or departed from the English legal tradition with respect to subsequent punishment tends to be fixed on the treatment of seditious libel. The historical argument for the law of seditious libel has been that government ought to have power to punish its most abusive or subversive critics because criticism of government contains the seeds of a variety of evils—disobedience to government, public disorder, even violence—and that no government can subsist if people have the right to criticize it or to call its agents corrupt or incompetent. This is seen in the work of Leonard W. Levy, zechariah chafee, and others who have lately examined the First Amendment's historical foundations by looking at seditious libel as the exclusive focus for probing the question of continuity and discontinuity with respect to subsequent punishments. Having narrowed the issue to seditious libel, the scholarly tradition put the question of continuity and discontinuity in all-or-nothing terms: Does the First Amendment as a matter of original understanding, or as a matter of latter doctrinal connotation, repudiate or embrace the concept of seditious libel?

When a question about the relationship of a controversial legal tradition to a broadly phrased constitutional text is put in such terms, the answers are likely to fall out along dialectical lines. So it has been with the rejection-or-reception issue concerning seditious libel. The heated debate on the question by the Federalists and Republicans in connection with the passage of the alien and sedition acts of 1798 has been echoed through our history. In modern scholarship, the dialectic begins in 1919 when Zechariah Chafee, troubled deeply by the World War i espionage act prosecutions, wrote in the Harvard Law Review that the Framers of the First Amendment "intended to wipe out the common law of sedition, and to make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America." Six months later, and plainly in emulation, Justice oliver wendell holmes added the weight of his and louis d. brandeis's authority to the Chafee thesis, when he declared in his great dissent in the Abrams case: "I wholly disagree with the argument … that the first Amendment left the common law as to seditious libel in force. History seems to me against the notion." But the Chafee position never won the broad adherence that most modern scholars seem to think it had. In the World War I free speech cases before the Supreme court, John Lord O'Brien, who briefed the cases for the Justice Department, stated as the official view of the government that seditious libel prosecutions were not rendered invalid by the First Amendment, either as a matter of original intent or as correctly understood in 1919. And others, including edward s. corwin, dissented from the Chafee position. Indeed, Chafee himself seems to have changed his tune by 1949, at least on the issue of the Framers' original intent: "The truth is, I think, that the framers had no very clear idea as to what they meant by 'the freedom of speech or the press.' " The dialectic about seditious libel and the First Amendment entered a new phase with the publication of Leonard W. Levy's seminal work, Legacy of Suppression, in 1960. This book argued that with respect to the general conceptions of freedom of the press prevalent at the time of the framing and ratification of the First Amendment, there was no solid evidence of a consensus to move away from a purely Blackstonian conception of freedom, that is, a conception limited to protecting only against previous restraints. In particular, Levy found considerable evidence that supported the continuing validity of seditious libel prosecutions, and no clear evidence that any lawyer, pamphleteer, philosopher, or statesman repudiated the concept of seditious libel. There was, Levy recognized, a growing sense of the necessity of the defense of truth, although far from a clear consensus even on that. And there was also a growing insistence on the independent power of the jury in a seditious libel prosecution to determine the issue of truth and the question of the seditious quality of any publication, as well as the other factual issues in the case.

Levy's account of the relationship of the First Amendment as a formal constitutional limitation on the power of Congress and his overall conception of intellectual and legal history respecting freedom of expression has from the beginning been confused by the problem of federalism. At the same time that he has insisted that the conception of freedom of the press guarded against abridgment by the First Amendment does not invalidate seditious libel, he has described the amendment as denying any power whatever by Congress to legislate with respect to the press, except to protect copyright. Thus, he concluded that Congress had no power to pass the Sedition Act of 1798, but on federalism grounds, not because the Sedition Act violated any understandings about press freedom embodied in the First Amendment. The states and the federal courts remained empowered to try seditious libel prosecutions.

But Levy's interpretation of the "Congress shall make no law" language in the First Amendment has taken a distant backseat, in his own writing and in that of others, to his overriding emphasis that "the freedom of speech or of the press" was not understood to repudiate the concept of seditious libel. In other words, the First Amendment was understood to embody a Blackstonian conception of freedom of expression as a matter of original intent.

in new york times co. v. sullivan (1964) the Supreme Court gave an authoritative modern answer to the question whether prosecution of seditious libel would survive the First Amendment. An advertisement in March 1960, placed by supporters of martin luther king, jr. , in the New York Times; recited the repressive activities of Alabama police with several minor inaccuracies and exaggerations. An Alabama jury awarded a local official $500,000 damages against the New York Times. The Supreme Court reacted with sweeping changes in the constitutional status of defamation law. Libel would no longer be viewed as a category of expression beneath First Amendment protection. Instead, the Court found that the political repudiation of the Sedition Act of 1798 had revealed the "central meaning" of the First Amendment: a right to criticize government and public officials. As the Court put it, "[A] rule compelling the critic of official conduct to guarantee the truth of all his factual assertions … leads to … 'self-censorship.' " The Alabama act, "because of the restraint it imposed upon criticism of government and public officials," was inconsistent with the First Amendment.

In place of actual falsity as a basis for liability, the Court imposed a new standard to govern defamation actions brought by public officials. Now, a public official could recover damages for a defamatory falsehood relating to his official conduct only upon a showing "that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

Sullivan effected important changes in constitutional law and practice. Defamation law previously had been left to the states, subject to gradual common law evolution in state courts not often exposed to First Amendment issues. Sullivan federalized this diversity of local rules into a single national body of doctrine overseen by a Court peculiarly sensitive to First Amendment problems. Furthermore, the intangibility of defamation law had left wide discretion in trial court juries; Sullivan imposed independent appellate court review of the facts in defamation actions as a First Amendment guarantee. And, in place of the complexity of overlapping liabilities, offsetting privileges, and jurisdictional diversity, Sullivan instituted a simple national rule that put a stringent burden of proof on plaintiffs.

Decisions following Sullivan extended the "actual malice" limitation on the law of defamation beyond the case of criticism of high public officials. The rule was expanded to apply to public figures in Curtis Publishing Co. v. ButtsandAssociated Press v. Walker (1967). A plurality of the Court even stretched the rule to cover private figures, if the matter was "a subject of public or general interest," inRosenbloom v. Metromedia, Inc. (1971). But the Court retreated from Rosenbloom three years later in gertz v. robert welch, inc. (1974). Gertz held that a private person may recover without meeting the actual malice standard. Because private figures have only limited access to the media to correct misstatements of others, and because they have not assumed the risk of injury due to defamatory falsehoods against them, the Court found the interests of private figures to weigh more heavily than those of public figures. The states were left free to establish an appropriate standard of liability, provided they do not impose liability without fault. Moreover, the states were forbidden from awarding presumed or punitive damages absent a showing of actual malice. More recently, in dun & bradstreet, inc. v. greenmoss builders, inc. (1985), the Court retreated still further, permitting recovery of presumed and punitive damages by a private plaintiff without a showing of actual malice, because the defamatory statements did not involve a matter of public concern.

The defamation decisions beginning with New York Times Co. v. Sullivan have had the twofold effect of highlighting the core purpose of the First Amendment and constitutionalizing the law of defamation. By invalidating the law of seditious libel, the Court recognized that criticism of government is the type of speech most deserving of First Amendment protection. By establishing minimum standards of liability and limitations on damages for public figures and some private plaintiffs, the Court federalized the law of defamation.

Benno C. Schmidt, Jr.


Kalven, Harry, Jr. 1964 The New York Times Case: A Note on "The Central Meaning of the First Amendment." Supreme Court Review 1964:191.

Levy, Leonard W. 1960 Legacy of Suppression: Freedom of Speech and Press in Early American History. Cambridge, Mass.: Harvard University Press.

——1984 Emergence of a Free Press. New York: Oxford University Press.