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GARRISON v. LOUISIANA, 379 U.S. 64 (1964)

U.S. Supreme Court

GARRISON v. LOUISIANA, 379 U.S. 64 (1964)

379 U.S. 64

No. 4.
Argued April 22, 1964. Restored to the calendar for reargument June 22, 1964. Reargued October 19, 1964.
Decided November 23, 1964.

Appellant, a District Attorney in Louisiana, during a dispute with certain state court judges of his parish, accused them at a press conference of laziness and inefficiency and of hampering his efforts to enforce the vice laws. A state court convicted him of violating the Louisiana Criminal Defamation Statute, which in the context of criticism of official conduct includes punishment for true statements made with "actual malice" in the sense of ill-will as well as false statements if made with ill-will or without reasonable belief that they were true. The state supreme court affirmed the conviction, holding that the statute did not unconstitutionally abridge appellant's rights of free expression. Held:

244 La. 787, 154 So.2d 400, reversed.

Eberhard P. Deutsch reargued the cause for appellant. With him on the briefs was Rene H. Himel, Jr.

Jack P. F. Gremillion, Attorney General of Louisiana, reargued the cause for appellee. With him on the briefs were M. E. Culligan and John E. Jackson, Jr., Assistant Attorneys General.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellant is the District Attorney of Orleans Parish, Louisiana. During a dispute with the eight judges of [379 U.S. 64, 65]   the Criminal District Court of the Parish, he held a press conference at which he issued a statement disparaging their judicial conduct. As a result, he was tried without a jury before a judge from another parish and convicted of criminal defamation under the Louisiana Criminal Defamation Statute. 1 The principal charges alleged to [379 U.S. 64, 66]   be defamatory were his attribution of a large backlog of pending criminal cases to the inefficiency, laziness, and excessive vacations of the judges, and his accusation that, by refusing to authorize disbursements to cover the expenses of undercover investigations of vice in New Orleans, the judges had hampered his efforts to enforce the vice laws. In impugning their motives, he said:

The Supreme Court of Louisiana affirmed the conviction, 244 La. 787, 154 So.2d 400. The trial court and the State Supreme Court both rejected appellant's contention that the statute unconstitutionally abridged his freedom of expression. We noted probable jurisdiction of the appeal. 375 U.S. 900 . Argument was first heard in the 1963 Term, and the case was ordered restored to the calendar for reargument, 377 U.S. 986 . We reverse.


In New York Times Co. v. Sullivan, 376 U.S. 254 , we held that the Constitution limits state power, in a civil action brought by a public official for criticism of his official conduct, to an award of damages for a false statement "made with `actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S., at 279 -280. At the outset, we must decide whether, in view of the differing history and purposes of criminal libel, the New York Times rule also limits state power to impose criminal sanctions for criticism of the official conduct of public officials. We hold that it does.

Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws, and therefore should not be subject to the same limitations. 3 At common law, truth was no defense to criminal [379 U.S. 64, 68]   libel. Although the victim of a true but defamatory publication might not have been unjustly damaged in reputation by the libel, the speaker was still punishable since the remedy was designed to avert the possibility that the utterance would provoke an enraged victim to a breach of peace. That argument is well stated in Edward Livingston's explanation of the defamation provisions of his proposed penal code for Louisiana:

Even in Livingston's day, however, preference for the civil remedy, which enabled the frustrated victim to trade chivalrous satisfaction for damages, had substantially eroded the breach of the peace justification for criminal libel laws. In fact, in earlier, more violent, times, the civil remedy had virtually pre-empted the field of defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual desuetude. 5 Changing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that ". . . under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation." Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 924 (1963). 6 The absence in the Proposed Official Draft of the Model Penal Code of the American Law Institute of any criminal libel statute on the Louisiana pattern reflects this modern consensus. The ALI Reporters, in explaining the omission, gave cogent evidence of the obsolescence of Livingston's justification:

The Reporters therefore recommended only narrowly drawn statutes designed to reach words tending to cause a breach of the peace, such as the statute sustained in Chaplinsky v. New Hampshire, 315 U.S. 568 , or designed to reach speech, such as group vilification, "especially likely to lead to public disorders," such as the statute sustained in Beauharnais v. Illinois, 343 U.S. 250 . Model Penal Code, supra, at 45. But Louisiana's rejection of the clear-and-present-danger standard as irrelevant to the application of its statute, 244 La., at 833, 154 So.2d, at 416, coupled with the absence of any limitation in the statute itself to speech calculated to cause breaches of the peace, leads us to conclude that the Louisiana statute is not this sort of narrowly drawn statute.

We next consider whether the historical limitation of the defense of truth in criminal libel to utterances published "with good motives and for justifiable ends" 7   [379 U.S. 64, 71]   should be incorporated into the New York Times rule as it applies to criminal libel statutes; in particular, we must ask whether this history permits negating the truth defense, as the Louisiana statute does, on a showing of [379 U.S. 64, 72]   malice in the sense of ill-will. The "good motives" restriction incorporated in many state constitutions and statutes to reflect Alexander Hamilton's unsuccessfully urged formula in People v. Croswell, 3 Johns. Cas. 337, 352 (N. Y. Supreme Court 1804), liberalized the common-law rule denying any defense for truth. See Ray, Truth: A Defense to Libel, 16 Minn. L. Rev. 43, 46-49 (1931); Kelly, Criminal Libel and Free Speech, 6 Kan. L. Rev. 295, 326-328 (1958). We need not be concerned whether this limitation serves a legitimate state interest to the extent that it reflects abhorrence that "a man's forgotten misconduct, or the misconduct of a relation, in which the public had no interest, should be wantonly raked up, and published to the world, on the ground of its being true." 69 Hansard, Parliamentary Debates 1230 (3d series) (H. L. June 1, 1843) (Report of Lord Campbell) (emphasis supplied). 8 In any event, where the criticism is of [379 U.S. 64, 73]   public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth. 9 In short, we agree with the New Hampshire court in State v. Burnham, 9 N. H. 34, 42-43, 31 Am. Dec. 217, 221 (1837):

Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, "it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded." Noel, Defamation [379 U.S. 64, 74]   of Public Officers and Candidates, 49 Col. L. Rev. 875, 893 (1949). Moreover, "[i]n the case of charges against a popular political figure . . . it may be almost impossible to show freedom from ill-will or selfish political motives." Id., at 893, n. 90. Similar considerations supported our holdings that federal officers enjoy an absolute privilege for defamatory publication within the scope of official duty, regardless of the existence of malice in the sense of ill-will. Barr v. Matteo, 360 U.S. 564 ; Howard v. Lyons, 360 U.S. 593 ; cf. Gregoire v. Biddle, 177 F.2d 579 (C. A. 2d Cir. 1949). What we said of Alabama's civil libel law in New York Times, 376 U.S., at 282 -283, applies equally to the Louisiana criminal libel rule: "It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves."

We held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. The reasons which led us so to hold in New York Times, 376 U.S., at 279 -280, apply with no less force merely because the remedy is criminal. The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy. Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. And since ". . . erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the `breathing space' that they `need . . . to survive' . . .," 376 U.S., at 271 -272, only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions. For speech concerning public affairs is [379 U.S. 64, 75]   more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our "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." New York Times Co. v. Sullivan, 376 U.S., at 270 .

The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. Cf. Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088-1111 (1942). That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 . Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection. [379 U.S. 64, 76]  


We find no difficulty in bringing the appellant's statement within the purview of criticism of the official conduct of public officials, entitled to the benefit of the New York Times rule. As the Louisiana Supreme Court viewed the statement, it constituted an attack upon the personal integrity of the judges, rather than on official conduct. In sustaining the finding of the trial court that the appellant's statement was defamatory, the Louisiana Supreme Court held that ". . . the use of the words `racketeer influences' when applied to anyone suggests and imputes that he has been influenced to practice fraud, deceit, trickery, cheating, and dishonesty"; that "The expression that the judges have enjoyed 300 days vacation out of 19 months suggests and connotes a violation of the `Deadhead' statute, LSA-R. S. 14:138, Public Payroll Fraud"; that "Other expressions set out in the Bill of Information connote malfeasance in office. LSA-R. S. 14:134; Art. IX, Sec. 1, La. Const. of 1921." The court concluded that "Defendant's expressions . . . are not criticisms of a court trial or of the manner in which any one of the eight judges conducted his court when in session. The expressions charged contain personal attacks upon the integrity and honesty of the eight judges . . . ." 244 La., at 834-835, 154 So.2d, at 417-418.

We do not think, however, that appellant's statement may be considered as one constituting only a purely private defamation. The accusation concerned the judges' conduct of the business of the Criminal District Court. 10   [379 U.S. 64, 77]   Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character. 11 As the Kansas Supreme Court said in Coleman v. MacLennan, speaking of candidates:


Applying the principles of the New York Times case, we hold that the Louisiana statute, as authoritatively interpreted by the Supreme Court of Louisiana, incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials. [379 U.S. 64, 78]   For, contrary to the New York Times rule, which absolutely prohibits punishment of truthful criticism, the statute directs punishment for true statements made with "actual malice," see LSA-R. S. 14:48; State v. Cox, 246 La. 748, 756, 167 So.2d 352, 355 (1964), handed down after the New York Times decision; Bennett, The Louisiana Criminal Code, 5 La. L. Rev. 6, 34 (1942). And "actual malice" is defined in the decisions below to mean "hatred, ill will or enmity or a wanton desire to injure . . . ." 244 La., at 851, 154 So.2d, at 423. The statute is also unconstitutional as interpreted to cover false statements against public officials. The New York Times standard forbids the punishment of false statements, unless made with knowledge of their falsity or in reckless disregard of whether they are true or false. But the Louisiana statute punishes false statements without regard to that test if made with ill-will; even if ill-will is not established, a false statement concerning public officials can be punished if not made in the reasonable belief of its truth. The Louisiana Supreme Court affirmed the conviction solely on the ground that the evidence sufficed to support the trial court's finding of ill-will, enmity, or a wanton desire to injure. But the trial court also rested the conviction on additional findings that the statement was false and not made in the reasonable belief of its truth. The judge said:

This is not a holding applying the New York Times test. The reasonable-belief standard applied by the trial judge is not the same as the reckless-disregard-of-truth standard. According to the trial court's opinion, a reasonable belief is one which "an ordinarily prudent man might be able to assign a just and fair reason for"; the suggestion is that under this test the immunity from criminal responsibility in the absence of ill-will disappears on proof that the exercise of ordinary care would have revealed that the statement was false. The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.


[ Footnote 1 ] La. Rev. Stat., 1950, Tit. 14:

La. Rev. Stat., 1962 Cum. Supp., Tit. 14:

[ Footnote 2 ] The dispute between appellant and the judges arose over disbursements from a Fines and Fees Fund, which was to be used to defray expenses of the District Attorney's office; disbursements could be made only on motion of the District Attorney and approval by a judge of the Criminal District Court. After appellant took office, one of the incumbent judges refused to approve a disbursement from the Fund for furnishings for appellant's office. When the judge went on vacation prior to his retirement in September 1962, appellant obtained the approval of another judge, allegedly by misrepresenting that the first judge had withdrawn his objection. Thereupon, the eight judges, on October 5, 1962, adopted a rule that no further disbursements of the District Attorney from the Fund would be approved except with the concurrence of five of the eight judges. On October 26, 1962, the judges ruled that disbursements to pay appellant's undercover agents to conduct investigations of commercial vice in the Bourbon and Canal Street districts of New Orleans [379 U.S. 64, 67]   would not be approved, and expressed doubt as to the legality of such a use of the Fund under the State Constitution. A few days later, on November 1, 1962, the judge, now retired, who had turned down the original motion issued a public statement criticizing appellant's conduct of the office of District Attorney. The next day, appellant held the press conference at which he made the statement for which he was prosecuted.

[ Footnote 3 ] In affirming appellant's conviction, before New York Times was handed down, the Supreme Court of Louisiana relied on statements in Roth v. United States, 354 U.S. 476, 486 -487, and Beauharnais v. [379 U.S. 64, 68]   Illinois, 343 U.S. 250, 266 , to the effect that libelous utterances are not within the protection of the First and Fourteenth Amendments, and hence can be punished without a showing of clear and present danger. 244 La., at 833-834, 154 So.2d, at 416-417. For the reasons stated in New York Times, 376 U.S., at 268 -269, nothing in Roth or Beauharnais forecloses inquiry into whether the use of libel laws, civil or criminal, to impose sanctions upon criticism of the official conduct of public officials transgresses constitutional limitations protecting freedom of expression. Whether the libel law be civil or criminal, it must satisfy relevant constitutional standards.

[ Footnote 4 ] Livingston's Code was not adopted, and is not reflected in the current Louisiana statute. His suggested provisions for defamation appear at pp. 421-425. Of particular interest are Art. 369, exculpating [379 U.S. 64, 69]   true statements of fact or incorrect opinions as to the qualifications of any person for public office, and Art. 386 (2), exculpating even mistaken observations on the tendencies or motives of official acts of public officers, but not exculpating false allegations of such motives as would be criminal.

[ Footnote 5 ] 5 Holdsworth, History of English Law, 207-208 (2d ed. 1937); Kelly, Criminal Libel and Free Speech, 6 Kan. L. Rev. 295, 296-303 (1958).

[ Footnote 6 ] See the letter of Mr. Justice Jackson, when Attorney General of the United States, dated June 11, 1940, and addressed to Senator Millard E. Tydings, 87 Cong. Rec. 5836-5837, in which he stated that the policy of the Attorneys General of the United States was not to prosecute for criticism of public officials.

[ Footnote 7 ] The following jurisdictions have constitutional or statutory provisions which make truth a defense if published with good motives and for justifiable ends, or some variant thereof:

Alaska Stat., 1962, 11.15.320; Ariz. Rev. Stat. Ann., 1956, 13-353; Cal. Const., 1879, Art. 1, 9; Cal. Pen. Code, 1955, 251; D.C. Code Ann., 1961, 22-2303; Fla. Const., 1885, Declaration of Rights, 13; Hawaii Rev. Laws, 1955, 294-6; Idaho Code, 1948, [379 U.S. 64, 71]   18-4803; Ill. Const., 1870, Art. 2, 4; Ill. Rev. Stat., 1963, Tit. 38, 27-2; Iowa Const., 1846, Art. I, 7; Iowa Code, 1962, 737.4; Kan. Bill of Rights, Const., 1859, 11; Kan. Gen. Stat. Ann., 1949, 21-2403; Mass. Gen. Laws Ann., 1959, c. 278, 8 (without "actual malice"); Mich. Const., 1963, Art. I, 19; Minn. Stat., 1961, 634.05; Miss. Const., 1890, Art. 3, 13; Miss. Code, 1942 (recompiled 1956), 2269; Mont. Const., 1889, Art. III, 10; Mont. Rev. Codes Ann., 1947, 94-2804; Nev. Const., 1864, Art. I, 9; Nev. Rev. Stat., 1961, 200.510.3; N. J. Const., 1947, Art. 1,  6; N. Y. Const., 1938, Art. I, 8; N. Y. Pen. Code, 1342; N. D. Const., 1889, Art. I, 9; N. D. Cent. Code, 1960, 12-28-04; Ohio Const., 1851, Art. I, 11; Okla. Const., 1907, Art. 2, 22; Okla. Stat., 1951, Tit. 21, 774; Ore. Rev. Stat., 1953, 163.420; R. I. Const., 1843, Art. I, 20; R. I. Gen. Laws Ann., 1956, 9-6-9; S. D. Const., 1889, Art. VI, 5; S. D. Code, 1939, 13.3406; Utah Const., 1895, Art I, 15; Utah Code Ann., 1953, 77-31-30; Wash. Rev. Code, 1951, 9.58.020; Wis. Const., 1848, Art. I, 3; Wis. Stat., 1961, 942.01 (3); Wyo. Const., 1890, Art. 1, 20. Cf. England, Lord Campbell's Act, 6 & 7 Vict., c. 96, 6 (1843) (for the public benefit).

In the following jurisdictions truth does operate as a complete defense:

Colo. Const., 1876, Art. II, 10; Colo. Rev. Stat. Ann., 1953, 40-8-13; Bearman v. People, 91 Colo. 486, 493, 16 P.2d 425, 427 (1932); Ind. Const., 1851, Art. 1, 10; State v. Bush, 122 Ind. 42, 23 N. E. 677 (1890); Mo. Const., 1945, Art. I, 8; Mo. Rev. Stat., 1959, 559.440; Neb. Const., 1875, Art. I, 5; Neb. Rev. Stat., 1943 (1956 reissue), 28-440; Razee v. State, 73 Neb. 732, 103 N. W. 438 (1905); N. M. Const., 1911, Art. II, 17; N. M. Stat. Ann., 1953 (1964 replacement). 40A-11-1 (false and malicious statement); N.C. Gen. Stat., 1953. 15-168; S. C. Const., 1895, Art. I, 21; S. C. Code, 1962, 16-161; Vt. Stat. Ann., 1958, Tit. 13, 6560.

The following jurisdictions allow greater scope for the defense of truth where criticism of the official conduct of public officials is concerned:

Ala. Const., 1901, Art. 1, 12 (but Ala. Code, 1940, Tit. 14, 350 makes truth a defense); Del. Const., 1897, Art. 1, 5; Del. Code [379 U.S. 64, 72]   Ann., 1953, Tit. 11, 3506; Ky. Const., 1891, 9; Me. Const., 1820, Art. I, 4; Me. Rev. Stat., 1954, c. 130, 34; State v. Burnham, 9 N. H. 34, 31 Am. Dec. 217 (1837); Pa. Const., 1874, Art. 1, 7; Tenn. Const., 1870, Art. 1, 19; Tenn. Code Ann., 1955, 39-2704, 23-2603; Tex. Const., 1876, Art. 1, 8; Tex. Code Crim. Proc. Ann., 1954, Art. 13; Tex. Pen. Code Ann., 1953, Arts. 1290 (1), 1290 (4).

The following jurisdictions have constitutional or statutory provisions under which evidence of the truth may be introduced, but it is unclear whether this operates as a complete defense:

Ark. Const., 1874, Art. 2, 6; Ark. Stat., 1947 (1964 replacement), Tit. 41, 2403; Conn. Const., 1818, Art. First, 7; Ga. Const., 1877, 2-201; Ga. Code Ann., 1953, 26-2103; Md. Code Ann., 1957, Art. 75, 5; Va. Code Ann., 1950 (1960 replacement), 18.1-255, 18.1-256.

In one jurisdiction there is no authority in point. See State v. Payne, 87 W. Va. 102, 104 S. E. 288 (1920).

[ Footnote 8 ] We recognize that different interests may be involved where purely private libels, totally unrelated to public affairs, are concerned; therefore, nothing we say today is to be taken as intimating any views as to the impact of the constitutional guarantees in the discrete area of purely private libels.

[ Footnote 9 ] Even the law of privacy, which evolved to meet Lord Campbell's reservations, recognizes severe limitations where public figures or newsworthy facts are concerned. See Sidis v. F-R Pub. Corp., 113 F.2d 806, 809-810 (C. A. 2d Cir. 1940).

[ Footnote 10 ] In view of our result, we do not decide whether appellant's statement was factual or merely comment, or whether a State may provide any remedy, civil or criminal, if defamatory comment alone, however vituperative, is directed at public officials. The Louisiana courts held that the privilege for fair comment was excluded in the present case by malice or lack of reasonable care, and not by the [379 U.S. 64, 77]   addition of factual assertions. For different formulations of comment, in the context of the common law fair comment rule, see 1 Harper and James, The Law of Torts, 5.28, at 458 (1956); Note, Fair Comment, 62 Harv. L. Rev. 1207, 1213 (1949); Restatement, Torts, 606, Comment b, 567 (1938).

[ Footnote 11 ] See, e. g., Vernon's Tex. Pen. Code Ann., 1953, Art. 1290 (2).

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.

For reasons stated at greater length in my opinions concurring in New York Times Co. v. Sullivan, 376 U.S. 254, 293 , and dissenting in Beauharnais v. Illinois, 343 U.S. 250, 267 , as well as in the opinion of MR. JUSTICE DOUGLAS in this case, infra, p. 80, I concur in reversing the conviction of appellant Garrison, based as it is purely on his public discussion and criticism of public officials. I believe that the First Amendment, made applicable to the States by the Fourteenth, protects every person from having a State or the Federal Government fine, imprison, or assess damages against him when he has been guilty of no conduct, see Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 , other than expressing an opinion, even though others may believe that his views are unwholesome, unpatriotic, stupid or dangerous. I believe that the Court is mistaken if it thinks that requiring proof that [379 U.S. 64, 80]   statements were "malicious" or "defamatory" will really create any substantial hurdle to block public officials from punishing those who criticize the way they conduct their office. Indeed, "malicious," "seditious," and other such evil-sounding words often have been invoked to punish people for expressing their views on public affairs. Fining men or sending them to jail for criticizing public officials not only jeopardizes the free, open public discussion which our Constitution guarantees, but can wholly stifle it. I would hold now and not wait to hold later, compare Betts v. Brady, 316 U.S. 455 , overruled in Gideon v. Wainwright, 372 U.S. 335 , that under our Constitution there is absolutely no place in this country for the old, discredited English Star Chamber law of seditious criminal libel.

MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins, concurring.

I am in hearty agreement with the conclusion of the Court that this prosecution for a seditious libel was unconstitutional. Yet I feel that the gloss which the Court has put on "the freedom of speech" in the First Amendment to reach that result (and like results in other cases) makes that basic guarantee almost unrecognizable. 1  

Recently in New York Times Co. v. Sullivan, 376 U.S. 254 , a majority of the Court held that criticism of an [379 U.S. 64, 81]   official for official conduct was protected from state civil libel laws by the First and Fourteenth Amendments, unless there was proof of actual malice. Id., at 279. We now hold that proof of actual malice is relevant to seditious libel - that seditious libel will lie for a knowingly false statement or one made with reckless disregard of the truth.

If malice is all that is needed, inferences from facts as found by the jury will easily oblige. How can we sit in review on a cold record and find no evidence of malice (cf. New York Times Co. v. Sullivan, 376 U.S., at 285 -288) when it is the commonplace of life that heat and passion subtly turn to malice in actual fact? If "reckless disregard of the truth" is the basis of seditious libel, that nebulous standard could be easily met. The presence of "actual malice" is made critical in seditious libel, as well as in civil actions involving charges against public officials, when in truth there is nothing in the Constitution about it, any more than there is about "clear and present danger."

While the First Amendment remains the same, the gloss which the Court has written on it in this field of the discussion of public issues robs it of much vitality.

Why does "the freedom of speech" that the Court is willing to protect turn out to be so pale and tame?

It is because, as my Brother BLACK has said, 2 the Bill of Rights is constantly watered down through judicial [379 U.S. 64, 82]   "balancing" of what the Constitution says and what judges think is needed for a well-ordered society.

As Irving Brant recently said: "The balancing test developed in recent years by our Supreme Court does not disarm the Government of power to trench upon the field in which the Constitution says `Congress shall make no law.' The balancing test does exactly what is done by its spiritual parent, the British `common law of seditious libel,' under which (to repeat the words of May), `Every one was a libeler who outraged the sentiments of the dominant party.'" Seditious Libel: Myth and Reality, 39 N. Y. U. L. Rev. 1, 18-19 (1964).

Beauharnais v. Illinois, 343 U.S. 250 , a case decided by the narrowest of margins, should be overruled as a misfit in our constitutional system and as out of line with the dictates of the First Amendment. I think it is time to face the fact that the only line drawn by the Constitution is between "speech" on the one side and conduct or overt acts on the other. The two often do blend. I have expressed the idea before: "Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it." Roth v. United States, 354 U.S., at 514 (dissenting opinion). Unless speech is so brigaded with overt acts of that kind there is nothing that may be punished; and no semblance of such a case is made out here.

I think little need be added to what Mr. Justice Holmes said nearly a half century ago:

The philosophy of the Sedition Act of 1798 which punished "false, scandalous and malicious" writings (1 Stat. 596) is today allowed to be applied by the States. Yet Irving Brant has shown that seditious libel was "entirely the creation of the Star Chamber." 4 It is disquieting to know that one of its instruments of destruction is abroad in the land today.

Excerpt from Madison's Address, January 23, 1799:

[ Footnote * ] The First Amendment was Article Third in those submitted by Congress to the States on September 25, 1789.

[ Footnote 1 ] The Constitution says in the First Amendment that "Congress shall make no law . . . abridging the freedom of speech"; and the Due Process Clause of the Fourteenth Amendment puts the States under the same restraint. There is one school of thought, so far in the minority, which holds that the due process freedom of speech honored by the Fourteenth Amendment is a watered-down version of the First Amendment freedom of speech. See my Brother HARLAN in Roth v. United States, 354 U.S. 476, 500 -503. While that view has never obtained, the construction which the majority has given the First Amendment has been burdened with somewhat the same kind of qualifications and conditions.

[ Footnote 2 ] The Bill of Rights and the Federal Government, in The Great Rights, p. 60 (Cahn ed. 1963):

[ Footnote 3 ] Madison's views on the Sedition Act - a federal enactment - are relevant here, now that the First Amendment is applicable to the States. I have therefore appended his views as an Appendix.

[ Footnote 4 ] 39 N. Y. U. L. Rev. 1, 11. "What is called today the commonlaw doctrine of seditious libel is in fact the creation of the Court of Star Chamber, the most iniquitous tribunal in English history. It has been injected into the common law solely by the fiat of Coke and by subsequent decisions and opinions of English judges who perpetuated the vicious procedures by which the Star Chamber stifled criticism of the government and freedom of political opinion. If seditious libel has any genuine common-law affiliation, it is by illegitimate descent from constructive treason and heresy, both of which are totally repugnant to the Constitution of the United States." Brant, supra, at 5.


I agree with the Court that there is "no difficulty in bringing the appellant's statement within the purview of criticism of the official conduct of public officials . . . ." Ante, at 76. In New York Times Co. v. Sullivan, 376 U.S. 254, 297 , I expressed my conviction "that the Constitution accords citizens and press an unconditional freedom to criticize official conduct." Id., at 305. New York Times was a civil libel case; this is a criminal libel prosecution. In my view, "[i]f the rule that libel on government has no place in our Constitution is to have real meaning, then libel [criminal or civil] on the official conduct of the governors likewise can have no place in our Constitution." Id., at 299. [379 U.S. 64, 89]  

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