Danger: Pendulum Swinging: Using the Courts to Muzzle the Press

An expert in the delicate interplay of publishing, individual rights, and the First Amendment warns that recent Supreme Court rulings in matters dealing with libel and privacy invite “the most far-reaching and insidious” censorship of all, self-censorship.

THE Atlantic FOUNDED IN 1857

by Alan U. Schwartz

Censorship, in some form or other, exists in every contry in the world. While the brutal repressions of the Soviet Union are very different from the inhibitions imposed by the Official Secrets Act in Great Britain, for example, the reason for governmental restrictions on speech and press are essentially the same in both cases: the need for balance—sometimes horribly distorted, sometimes restrained and well-meaning– between the right of individuals to information and the right of a state to self-protection. Despite certain periods of almost hysterical repressive measures (the Alien and Sedition Acts, the Comstock era, the McCarthy witch-hunt, to mention a few), the United States has been perhaps the least restrictive of countries in imposing burdens upon free communication.

Nevertheless, throughout our history such creative legal minds as Madison and Jefferson and, more recently, Justices Black and Douglas have felt that any restriction on free communication, regardless of the apparent worthlessness of the “speech,” presents an inherent danger to a free society and is an invitation to the imposition of further and perhaps more important limitations on the public’s “right to know.”They point out that the First Amendment to our Constitution states categorically that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” And they argue that when our Founding Fathers enacted this fundamental right they did so with the intention of excluding government entirely from the role of censor. After all, they were still licking their wounds from the spiritual, economic, and political manhandling they had received from the government of King George III.

Inevitably, though, the practical experience of government in an increasingly complex society has resulted in the overlap of many “interpretations" of seemingly explicit constitutional provisions, and it is perhaps naive to maintain that speech and press can, or should, operate independent of inhibition in modern society. The power of the media—the press, radio and television, books, magazines, and motion pictures—has grown almost geometrically in recent decades. Unchecked, it could control the minds, actions, and destiny of our people. Yet the apparatus of government has become so large and so complicated that piercing scrutiny by the media is necessary. So it is monolith against monolith, preferably with one checking and balancing the other, while our society grows more hydra-like and more unmanageable. This is a dangerous and explosive situation, but one with which we must cope if we are to make it through these increasingly difficult times.

The Supreme Court of the United States, a group of nine men, usually middle-aged or older, appointed for life by the President with the “advice and consent of the Senate,” is the body empowered to oversee this battle of titans for the good of the public and in conformity with the principles of the Constitution. The degree of freedom of communication we are allowed is often determined not by any specific law but rather by the way the Court interprets the First Amendment. Our history has shown that repressive judicial decisions are often more damaging to free speech than the strictest governmental edict. Therefore, if we are to judge how well our system of government has managed the “balancing act” between free speech and self-preservation, we must look carefully at the thinking of the present nine justices, and at the direction they are taking. In the areas of libel and privacy law, the portents are grim.

On March 2, 1976, the U.S. Supreme Court decided the libel case of Time, Inc. v. Mary Alice Firestone. The shock waves from this decision are now being felt by journalists, publishers, and broadcasters everywhere. Mrs. Firestone sued Time magazine for libel, claiming injury to her character and reputation because it reported in its “Milestones” section that she had been divorced by her wealthy husband “on grounds of extreme cruelty and adultery.” She had, in fact, been found guilty only of extreme cruelty. A Palm Beach jury awarded Mrs. Firestone $100,000 in damages despite the acknowledged facts that Mrs. Firestone was a wellknown society woman who had given press conferences during the trial, that the case had attracted widespread publicity in Florida, and that Time’s reporters had tried conscientiously to get their information straight from an admittedly ambiguous opinion of the Florida judge who made the award.

The Firestone decision is really a continuation of a series of recent decisions by the Supreme Court in the fields of libel and privacy which have created new dangers for journalists trying to report on matters of public interest.

The Supreme Court’s attempt to fashion a modern law of libel and privacy began in 1964 with the now famous case of The New York Times v. Sullivan. The Court there held that in order for a public official to win a libel action he must prove “actual malice.” This the Court defined as a showing “with convincing clarity” that the statement complained of was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” The theory of the case, of course, was that it is in the interest of our society that a robust and free press criticize public officials without fear of liability for mere error or even negligence. In a number of subsequent cases the Court extended this doctrine to require that “public figures” (as well as public officials) prove actual malice, and in the 1967 privacy case of Time v. Hill, this malice requirement was also applied to actions brought by individuals who were neither “public officials” nor “public figures” for invasion of their right of privacy when those actions are based on “false reports of matters of public interest.” Finally, in 1971, with a short-lived burst of enthusiasm for the First Amendment, a majority of the Court extended the “public interest” doctrine of Time v. Hill to libel as well as privacy cases (Rosenbloom v. Metromedia, Inc.).

However, after Rosenbloom, death and retirement began to alter the Court’s character, and the press began to encounter stormy weather. In 1974, a changed Court decided in Gertz v. Robert Welch, Inc. that the Supreme Court had gone too far three years earlier. It replaced the reasoning in Rosenbloom with the position that proof of actual malice would no longer be required in libel cases brought by private individuals involving matters of public interest. All such a person need prove was some degree of “fault” (presumably negligence) on the part of the reporter, publisher, or broadcaster. Ironically, the vote of Justice Blackmun was pivotal in this decision. Although he had decided in favor of the public interest exception in the Rosenbloom case, he changed his vote in the Gertz case. Blackmun explained, “If my vote were not needed to create a majority I would adhere to my prior view”—a strange reason on which to base a substantial change in the policy of the United States toward the First Amendment.

Then, after more changes in the personnel of the Court, came Firestone. Justices Black and Douglas, who for many years supported the position that the First Amendment placed an absolute ban on government interference with freedom of speech and press, were gone. Justice Harold Stevens, only recently appointed to replace Justice Douglas, did not take part in the case. In this splintered decision, the socalled “majority” opinion is written by Justice Rehnquist, joined by Justices Burger and Blackmun. Justices Powell and Stewart support the judgment of the majority but for different reasons. In a sentence reminiscent of Blackmun’s disclaimer in the Gertz case, Justice Powell (with Stewart agreeing) states: “In order to avoid the appearance of fragmentation of the Court on the basic principles involved, I join the opinion of the Court.” Again bedrock principles of protection for the First Amendment seemingly are governed by brotherly behavior among justices. No wonder journalists and others concerned with the free expression of ideas felt a chill in the air.

The issues in the Firestone case are crucial to the survival of a free press in this country. First, five justices decided that despite her social position and despite the notoriety of the case and its extensive coverage by the press, Mary Alice Firestone was not a “public figure” as previously defined in the decisions of the Supreme Court. Both Justice Brennan and Justice Marshall in their dissents find this hard to understand, especially when one remembers that Mrs. Firestone herself called several press conferences during the litigation and subscribed to various clipping services. The majority of the Court seems to be saying that although Mrs. Firestone was obviously involved in public controversy, that controversy was not deemed significant enough for judicial recognition. Clearly, that decision severely limits the scope of the term “public figure,” and since mere negligence is all that is required to be proved in a libel case involving someone who is not a public figure, once again the sphere of protection for the press has been reduced. If the Supreme Court cannot agree in any consistent fashion as to who is a public figure, journalists who attempt to make use of this “qualified privilege” to comment (short of actual malice) on behavior, do so at their peril.

The Firestone case has an aspect considerably more frightening for the media than the narrowed definition of a public figure. In defending against his wife’s suit for divorce, Russell Firestone counterclaimed on the grounds of her “extreme cruelty and adultery.” The judge was clearly aware of evidence relating to the adultery of both parties:

. . . [the] extramarital escapades of the plaintiff [Mrs. Firestone] were bizarre and of an amatory nature which would have made Dr. Freud’s hair curl. Other testimony . . . would indicate that defendant was guilty of bounding from one bedpartner to another with the erotic zest of a satyr . . . much of this testimony [is] unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated . . .”

Having first made such explicit reference to the Firestones’ sexual activities, the judge, in granting Mr. Firestone’s claim, ordered that “the equities in this case are with the defendant; that defendant’s counter-claim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved.” This order, as well as an examination of the judicial proceedings, led to the Time magazine characterization that the divorce was granted “on grounds of extreme cruelty and adultery.”

Since Mrs. Firestone was held not to be a public figure, she did not have to prove that Time magazine was guilty of malice in making the statements it did; rather, according to the Supreme Court of Florida, she merely had to prove “negligence.” One of her lawyers was smart enough to point out that although Mr. Firestone’s claim was on the grounds of both extreme cruelty and adultery and the judge’s order did not refer to any specific grounds for divorce, the fact that the judge awarded Mrs. Firestone alimony was proof that he had granted Firestone a divorce merely on the grounds of extreme cruelty. The reason: under Florida law one cannot get alimony if divorced on grounds of adultery. Despite the incredible complexity of this matter, even for a lawyer, and the vagueness and lack of clarity of the judge’s decision in the case, the Supreme Court of Florida decided that Time magazine was negligent in including adultery as a ground for the divorce and therefore was liable to Mrs. Firestone for defamation to the tune of $100,000.

A majority of the Supreme Court agreed that Mrs. Firestone was not a public figure and that all she was required to prove was that Time was guilty of “fault” in inaccurately reporting the judge’s verdict. But a majority couldn’t agree on whether Time had been negligent enough to be held liable. As Justice Powell said: “The decision of the Circuit Court [the court awarding the divorce] may have been sufficiently ambiguous to have caused reasonably prudent newsmen to read it as granting divorce on the ground of adultery.” Despite this, Powell, joined by Justice Stewart, agreed with the majority to send the case back to the local court to make a decision there as to whether Time magazine was at “fault” for being negligent.

To a journalist reporting a judicial decision, the peril of this opinion is obvious. As the Supreme Court has said in another case, “Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of’truth’ that would not put the publisher virtually at the mercy of the unguided discretion of a jury.” If those reporting on judicial proceedings are held to a standard which requires a knowledge of legal niceties and judicial obscurantism which even most lawyers don’t have, such proceedings will be reported only reluctantly—and sketchily-by newsmen, and in many cases articles of great importance will have to be read by batteries of lawyers before they are allowed to reach the public eye.

The cases reported in various parts of the country since the Gertz decision tend to require “negligence” rather than “malice” in holding publications responsible for defamatory remarks made about people who are involved in matters of public interest but who are not public officials or public figures. The few exceptions have not been numerous enough to warm the chill the Supreme Court is sending our way.

A recent privacy case is even more ominous. In Virgil v. Time, Inc., the top federal appeals court in California held that a wellknown body surfer was entitled to a jury trial for invasion of privacy because of an article about him in Sports Illustrated for which he agreed to be interviewed and the truth of which he never challenged. Even though the appeals court admitted that Virgil was a public figure for most purposes, it held, “We conclude that unless it be privileged as newsworthy, the publicizing of private fact is not protected by the First Amendment.” The appeals court then ordered that a jury should decide whether the information about Mr. Virgil was “newsworthy.” “In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores.”

In an action that shocked many constitutional lawyers the Supreme Court declined to review the appeals court decision, thereby letting the California decision stand as law. As a result, a jury in California will now be asked to decide whether the article published by Sports Illustrated dealt only with the “newsworthy” aspects of Mr. Virgil’s life or whether it crossed the forbidden boundary into the private, “non-newsworthy” part of his life. Under this formula truth becomes immaterial. The test is whether community mores (and what community? one may ask) have been offended. The peril to the journalist is extreme. He interviews a public figure with that person’s consent. He publishes or broadcasts an accurate account of the interview using his best judgment as to what is newsworthy about the person, only to find, to his overwhelming cost and expense (and that of his editor and publisher) that a jury in the town where his subject resides has decided that he stepped over the line and behaved “improperly.”

The effect of this decision on the public is even more serious. Is Representative Hays’s relationship with his administrative assistant a “newsworthy” event or one that really deals with his private life? How would a jury in his hometown feel about it? And what reporter (and what newspaper, magazine, or television station) would or should take the chance that led to the defeat of Sports Illustrated in the Virgil case? Taken in the context of its new libel decisions, the Supreme Court’s refusal to hear the Virgil case cannot but give rise (at least until the Court changes its collective mind or its constituency) to yet another ice age in the history of the First Amendment.

These recent decisions, while seemingly unfair and even dangerous, should not obscure the very real complexity of the issues with which the Supreme Court has been wrestling in the fields of libel and privacy. While freedom of speech and press may be protected under our Constitution, it is, as Justice Brandeis once commented, the public’s “right to know” rather than the journalist’s “right to publish” which is the heart of the matter protected. And this “right to know” does not, and should not, be extended to matters of intimacy having no conceivable relationship to information which will enable the public to make informed judgments about matters in which they have a legitimate interest. In other words, the First Amendment should protect the communication of newsworthy information, as the Virgil case says, but not the dissemination of intimate details of one’s private life completely unconnected with one’s public position or activities.

The justices who decided Firestone and Virgil are not bad men attempting to prevent the rest of us from getting needed information. Rather they are trying to balance interests in the public and private spheres which are at best very difficult to define and evaluate. However, what these men seem to have forgotten or ignored is the nature of censorship itself. Wherever it exists, its effects are more extensive than its immediate application. Therefore, these Court decisions, unfortunate enough in themselves, extend judicial obscurantism in areas where clarity is needed, and thereby make future self-censorship by journalists even more likely. As the history of censorship in the Soviet Union and elsewhere has shown, the most far-reaching and insidious result of state censorship is self-censorship. Faced with unclear laws (or laws unevenly applied) and severe penalties for their violation, one tends to hold back, to overedit, to censor one’s own material before allowing it to slip into the public stream.

Publishers and broadcasters of all kinds are now coming to realize that the cost of defending libel and privacy suits—and the uncertainty of result because of unclear guidelines—adds another link of selfcensorship to the chain which can eventually strangle free expression through governmental intimidation rather than action. As the New York Times discovered when it defended its publication of the Pentagon Papers, and as Alfred A. Knopf, Inc. discovered when it fought for publication of the Marchetti book on the CIA, tens, even hundreds, of thousands of dollars may be needed to protect the publication of challenged material. No wonder publishers are becoming more cautious about what they publish and are thereby making writers more cautious about what they write. Unfortunately, no appeal is available from this kind of censorship, because the hand of government remains invisible to the naked eye.

The great mistake being made by the Supreme Court lies in its failure to recognize that despite the undeniable value our society places on the protection of the individual from invasions of privacy and defamation, the First Amendment demands higher priority on unfettered communication. Where the two are in conflict, the latter must prevail. While many will feel it vulgar to disclose, for example, that Representative Howe was arrested for soliciting prostitutes, or that Harrold Carswell (a former Nixon candidate for the Supreme Court) has been accused of homosexual solicitation, these stories should not be judged by their tastelessness but rather by their relevance to information which the public needs. A press denied the opportunity to commit occasional errors in judgment and taste,will inevitably contribute to its own emasculation.

Ironically, in the recent case of Nebraska Press Association v. Stuart (the “Nebraska Gag Decision”), the Supreme Court unanimously struck down a judge’s order which would have prohibited newsmen from publishing confessions or admissions made bv an accused murderer to law-enforcement officials or other third parties. While recognizing that overzealous newsmen can often publicize material that reduces the chances for a fair trial, the Court held that the need for public information about judicial proceedings outweighs the dangers inherent in pretrial publicity. The burden of protecting confidentiality, the Supreme Court said, rested on the lower courts, rather than on the press. In reaching this result, Chief Justice Burger pointed out the extreme danger of prior restraint upon the dissemination of information:

A prior restraint . . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time.

But “gag” orders still occur, and the Supreme Court has recently declined to review two convictions of reporters for refusing to disclose their sources. One wonders how Chief Justice Burger and his colleagues can fail to recognize that self-censorship—by newsmen, editors, and publishers—caused by unclear and inconsistent guidelines, creates the most effective (and most rigid) prior restraint of all.

From Times v. Sullivan to Rosenbloom v. Metromedia, a period of seven years, a Supreme Court influenced by Justices Warren, Black, Douglas, and Brennan expanded First Amendment protection for news reporters in a fashion consistent with the public’s ever-growing need to know, and consistent also with the basic tenets of the First Amendment. The result was a climate of journalistic criticism and investigation which produced the revelations of the Pentagon Papers and Watergate. It was a time in which the press—and other media—finally came into its own, stubbing toes, barging in where it wasn’t wanted, sometimes being vulgar, sometimes being wrong, but uncovering the essential insight, the unmentionable question, the buried fact, which allowed American society to see what its government was actually doing.

Now, the pendulum is swinging the other way. In five short years, from Rosenbloom to Firestone, the Supreme Court has taken a number of confused steps backward, leaving journalists, broadcasters, and publishers at the mercy of unclear laws, inconsistent judges, and subjective juries. As a result of Gertz and Firestone, no one can say for sure what the law of libel is in this country, who constitutes a public figure, when malice must be proved, what standards of negligence will be applied to reporters making valiant efforts to untangle judicial cats’ cradles, what incredibly expensive and timeconsuming legal proceedings might threaten.

How will a conscientious but financially limited reporter know the extent to which he may report judicial proceedings (confusing as some of them are) without liability for defamation or invasion of privacy? How many newspapers, magazines, and local television stations will be able to risk the expense of a full-scale libel action in order to report the kind of governmental low-jinks which led to the “Plumbers Case” or Watergate? The result of this “chilling effect” may well be the destruction of the press’s necessary role as critic of the judiciary. While cases like Firestone may eventually be overturned, the time in which they remain in force (or in limbo) is a time of dark caution for the press, and therefore for the country.