author: Mr. Justice Stewart Mr. Justice Douglas,

text:
    UNITED STATES v. WELLER
    No. 77.
    Argued December 10, 1970
    Decided February 24, 1971
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Black, HarlaN, BrenNAN, White, Marshall, and BlackmuN, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 261.

      James van B. Springer argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, Philip R. Monahan, and Roger A. Pauley.

      Marvin M. Karpatkin argued the cause for appellee. With him on the brief were Michael N. Pollet, Melvin L. Wulj, and Rhoda H. Karpatkin.

   Mr. Justice Stewart

delivered the opinion of the Court.

In this case we are called upon once again to construe the elusive provisions of the Criminal Appeals Act, 18 U. S. C. § 3731. Somewhat ironically, the argument that we have no jurisdiction over this appeal is made by the appellant, the United States. The appellee, on the other hand, insists the case is properly here.

A grand jury in the United States District Court for the Northern District of California indicted the appellee for refusing to submit to induction into the Armed Forces, a violation of 50 U. S. C. App. § 462 (a) (1964 ed., Supp. V). In the Selective Service proceedings leading up to his induction notice, the appellee sought conscientious objector status. He specifically requested that his lawyer be allowed to accompany him at the time of his personal appearance before his local board, but the board, relying on 32 CFR § 1624.1 (b), denied the request and conducted the personal appearance without the appel-lee’s counsel present. Subsequently, the board declined to reopen the appellee’s I-A classification, and the appel-lee unsuccessfully exhausted administrative review. His order to report for induction, his refusal to submit, and this prosecution followed.

The appellee moved before trial to dismiss his indictment on the ground, among others, that the denial of counsel at the time of his personal appearance before the board deprived him of due process of law under the Fifth Amendment. The District Court did not squarely decide this constitutional claim, but granted the motion to dismiss on the ground that the regulation prohibiting representation by counsel at a registrant’s personal appearance was not authorized by the Military Selective Service Act. 309 F. Supp. 50. The court relied primarily upon Greene v. McElroy, 360 U. S. 474, in which our opinion underscored “the Court’s concern that traditional forms of fair procedure not be restricted by implication or without the most explicit action by the Nation’s lawmakers, even in areas where it is possible that the Constitution presents no inhibition.” 360 U. S., at 508. Viewing the personal appearance as “a critical stage of an administrative process at which substantial rights are adjudicated,” 309 F. Supp., at 51, the District Court found the various provisions of the Selective Service Act conferring rulemaking power on the Executive insufficient to authorize a regulation denying counsel at local board hearings.

The United States filed a notice of appeal to this Court. Subsequently, the Government reconsidered its position and concluded that this Court lacked jurisdiction over the appeal. Accordingly, the Solicitor General filed a motion asking us to remand the case to the United States Court of Appeals for the Ninth Circuit. We postponed further consideration of the question of jurisdiction until the hearing of the case on the merits. 397 U. S. 985. We now conclude that this appeal is not properly here and, pursuant to the provisions of the Criminal Appeals Act, remand the case to the Court of Appeals.

The appellee urges that we have jurisdiction under either of two sections of the Act, one relating to dismissal of an indictment based on the construction of the statute on which the indictment is founded and the other to motions in bar. Considering first the “construction of the statute” provision, the controlling precedent is this Court’s decision in United States v. Mersky, 361 U. S. 431. In that case, as in this one, there were in issue both a statute and a regulation promulgated pursuant to it. In finding jurisdiction in Mersky, however, the Court noted that “neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other.. .. When the statute and regulations are so inextricably intertwined, the dismissal must be held to involve the construction of the statute.” 361 U. S., at 438.

The relation between the Selective Service Act and the regulation forbidding representation by counsel before local boards is wholly different from the situation in Mersky. The regulation is not at all “called for by the statute itself,” 361 U. S., at 438. Indeed, so independent are the statute and the regulation that it would be entirely possible for a regulation covering the same subject matter to provide exactly the reverse of what the present regulation requires. It cannot be said here that “the construction of one necessarily involves the construction of the other.” Since this statute and this regulation fall so far short of being “inextricably intertwined,” we conclude that the dismissal of the appellee’s indictment was not “based upon the . . . construction of the statute.”

We turn, accordingly, to the “motion in bar” provision of the Criminal Appeals Act. Two preliminary observations are necessary. First, a “motion in bar” must be taken to mean whatever was meant by a “special plea in bar” in the Act as originally passed in 1907. Second, this Court has never settled on a definitive interpretation of what constitutes a “motion in bar.”

During its debates on the Criminal Appeals Act in 1907, Congress paid relatively little attention to the “special plea in bar” section of the Act. The clearest statement of its meaning was given by one of the bill’s cosponsors, Senator Patterson:

“A special plea in bar is that which is set up as a special defense notwithstanding the defendant may be guilty of the offenses with which he is charged; it is for some outside matter; yet it may have been connected with the case.”

The tenor of this definition accords with traditional usage, for at common law the most usual special plea in bar took the form of confession and avoidance. 1 J. Chitty, Treatise on Pleading and Parties to Actions *551-552 (16th Am. ed. 1883). In criminal cases the most common special pleas in bar presented claims of double jeopardy or pardon, 2 J. Bishop, New Criminal Procedure § 742 (2d ed. 1913), and sometimes the statute of limitations, id., at § 799 (5).

A characteristic common to all these definitions is that a special plea in bar did not deny that a defendant had committed the acts alleged and that the acts were a crime. Rather, it claimed that nevertheless he could not be prosecuted for his crime because of some extraneous factor. A situation in which the defendant claims that his act was simply not a crime would be beyond the scope of this test.

Our decisions are consistent with this reading of the “motion in bar” provision. In early cases under the section, the most familiar plea in bar interposed the statute of limitations. E. g., United States v. Goldman, 277 U. S. 229, 236-237; United States v. Rabinowich, 238 U. S. 78, 83-84. In other cases defendants have claimed immunity because of prior self-incriminatory testimony or a statutory grant of immunity. United States v. Blue, 384 U. S. 251; United States v. Hoffman, 335 U. S. 77, 78; United States v. Monia, 317 U. S. 424. See also United States v. Ewell, 383 U. S. 116 (speedy trial); United States v. Hark, 320 U. S. 531 (governing regulation revoked after violation but before indictment); United States v. Thompson, 251 U. S. 407 (first grand jury refused to indict; charges submitted to second grand jury without court approval); United States v. Celestine, 215 U. S. 278 (challenge to federal jurisdiction).

Testing the appellee’s motion to dismiss by this standard, we think it plain that it cannot qualify as a “motion in bar.” The appellee did not deny that he refused to submit to induction, but he claimed that his conduct was not a crime because of the prior denial of counsel. He has not confessed to a crime and claimed immunity from prosecution; he argues that he has committed no crime.

We conclude, therefore, that we have no jurisdiction over this appeal under either the “construction of the statute” or “motion in bar” provisions of the Criminal Appeals Act. Accordingly, this case is remanded to the United States Court of Appeals for the Ninth Circuit for further proceedings in that court.

It is so ordered.

Mr. Justice Douglas,

dissenting.

I believe that the appeal is properly here and I believe that United States v. Mersky, 361 U. S. 431, is a precedent that sustains my view and may not properly be distinguished as the Court undertakes to do.

In Mersky a statute governing the labeling of imported articles was involved. The Act made it mandatory to label articles of foreign origin with “the English name of the country of origin.” It also said that the Secretary of the Treasury “may” determine the “words and phrases or abbreviations” which were acceptable “as indicating the country of origin.” 19 U. S. C. § 1304 (a).

We held that the Act and the regulation were “so inextricably intertwined” that dismissal of the information “must be held to involve the construction of the statute.” 361 U. S., at 438.

In the present case the Court concludes that the provision of the Military Selective Service Act of 1967 in issue and the regulations are “far short” of being “inextricably intertwined.” But, with all respect, the only section of the Act quoted is the penal provision defining the crime of refusing to be inducted. The more relevant section is §10 (b)(3), 50 U. S. C. App. §460 (b)(3) (1964 ed., Supp. V), which reads in relevant part:

“Such local boards, or separate panels thereof each consisting of three or more members, shall, under rules and regulations prescribed by the President [§ 10 (b)(1)], have the power within the respective jurisdictions of such local boards to hear and determine, subject to the right of appeal ... , all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this title . . . .” (Emphasis added.)

The question turns on the meaning of “to hear and determine.” President Truman, pursuant to his rule-making power granted by § 10 (b)(1), promulgated on August 20, 1948, a regulation, now 32 CFR § 1624.1, which described the kind of “hearing” to which a registrant is entitled. More precisely does the power “to hear and determine” include the right of a registrant personally to appear? Does it include the right of a registrant to appear through an attorney or with an attorney? Is the question to be resolved “under the rules and regulations prescribed by the President” or is the Act to be read as including constitutional requirements of counsel? In my view the power “to hear and determine,” granted by the Act, may indeed be more intertwined with the regulations than was the Act in the Mersky case. For in the latter, the Act, as noted, made it mandatory to label articles of foreign origin with “the English name of the country of origin.” The power of the Secretary of the Treasury to promulgate regulations was therefore a power merely to fill in details. In contrast, the present Act leaves to “rules and regulations prescribed by the President” the scope and nature of the power of a local board “to hear and determine” the claims of a registrant. Is that constitutionally permissible?

This case, rather than Mersky, is more nearly the one where the Act and the regulations are “so inextricably intertwined” that dismissal of the present indictment “must be held to involve the construction of the statute.”

The District Court construed “hear and determine” claims of registrants “under rules and regulations prescribed by the President,” as those words are used in § 10 (b) (3) of the Act, not to authorize “the constitutionally-suspect action of removing the right to be represented by counsel.” 309 F. Supp., at 52. The District Court in granting the motion to dismiss accordingly concluded that it was “loathe to hold that the administrative denial of such a right is either authorized by Congress or is constitutional.” Id., at 56. I therefore cannot say that the dismissal of the indictment was not based on a construction of the statute that the District Court never considered.

I would not remit the case to the Court of Appeals but would decide here and now whether in the circumstances here presented the registrant was entitled to the aid of counsel at the hearing before the board.

       The end of our problems with this Act is finally in sight. The Omnibus Crime Control Act of 1970, § 14 (a), 84 Stat. 1890, amended the Criminal Appeals Act to read in pertinent part as follows:
      “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”
      This Court’s appellate jurisdiction of Government appeals in federal criminal cases has thus been eliminated. Pending cases, however, are not affected, since subsection (b) of the amending section provides:
      “The amendments made by this section shall not apply with respect to any criminal case begun in any district court before the effective date of this section.”
      The Omnibus Crime Control Act of 1970 took effect on January 2, 1971. The appellee in this case was indicted on January 15, 1969.

       Military Selective Service Act of 1967, §12 (a), 50 U. S. C. App. §462 (a) (1964 ed., Supp. V), provides in pertinent part:
      “[A]ny person . . . who . . . refuses . . . service in the armed forces ... or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . .

       32 CFR § 1624.1 (b) (1970) provides in pertinent part:
      “[N]o registrant may be represented before the local board by anyone acting as attorney or legal counsel.”

         The District Court cited Military Selective Service Act § 10 (b) (3), 50 U. S. C. App. § 460 (b) (3) (1964 ed., Supp. V), and § 1 (c) of the Act, 50 U. S. C. App. §451 (c). See also Military Selective Service Act §§ 5 (a)(1), 10(b)(1), 50 U. S. C. App. §§455 (a)(1) (1964 ed., Supp. V), 460 (b)(1).

       See 18 U. S. C. §3731:
      “If an appeal shall be taken, pursuant to this section, to the Supreme Court of the United States which, in the opinion of that Court, should have been taken to a court of appeals, the Supreme Court shall remand the case to the court of appeals, which shall then have jurisdiction to hear and determine the same as if the appeal had been taken to that court in the first instance.”

         Ibid.:

      “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
      “From a decision or judgment . . . dismissing any indictment . . . where such decision or judgment is based upon the . . . construction of the statute upon which the indictment ... is founded.
      “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.”

       The dissenting opinions would have found jurisdiction wanting in Mersky. 361 U. S., at 444, 453,

       It is suggested in dissent that we have jurisdiction because of the language in 50 U. S. C. App. § 460 (b) (3) (1964 ed., Supp. V) conferring upon local boards the power “to hear and determine” claims for exemption and deferment from military service. The record does not indicate that this statutory language was mentioned by the appellee in the District Court, and the court did not rely upon the “hear and determine” clause in dismissing the indictment. The theory of the dissent was not urged before this Court, perhaps because the parties realized that it can hardly be said that a dismissal of an indictment was “based upon” a construction of a statutory provision that the District Court never even considered.

        United States v. Sisson, 399 U. S. 267, 292-293, n. 22; Note 4 of Advisory Committee to Fed. Rule Crim. Proc. 54 (c), reprinted following Fed. Rule Crim. Proc. 54, 18 U. S. C. App.

        United States v. Sisson, 399 U. S., at 300 and nn. 53-54.

       41 Cong. Rec. 2753.

       Only two eases appear difficult to reconcile with the test adopted in text, and these are of dubious parentage. In United States v. Covington, 395 U. S. 57, and United States v. Murdock, 284 U. S. 141, defendants were being prosecuted for refusals to answer which they justified on grounds of Fifth Amendment privilege. Murdock itself, however, said that the plea was not appropriately presented as one in bar. 284 U. S., at 151. In Covington, we cited Murdock in assuming jurisdiction. 395 U. S., at 59 n. 2.

       As we noted only last Term in dealing with this same statute, “As a matter of sound construction, however, 'statute upon which the indictment ... is founded’ should be read to include the entire statute, and not simply the penalty provisions.” United States v. Sisson, 399 U. S. 267, 280 n. 9.

       The predecessor of 32 CFR § 1624.1, as promulgated by President Truman, provided in relevant part:
      “(a) Every registrant, after his classification is determined by the local board (except a classification which is itself determined upon an appearance before the local board under the provisions of this part), shall have an opportunity to appear in person before the member or members of the local board designated for the purpose if he files a written request therefor within 10 days after the local board has mailed a Notice of Classification (SSS Form No. 110) to him. Such 10-day period may not be extended, except when the local board finds that the registrant was unable to file such request within such period because of circumstances over which he had no control.
      “(b) No person other than a registrant shall have the right to appear in person before the local board, but the local board may, in its discretion, permit any person to appear before it with or on behalf of a registrant: Provided, That if the registrant does not speak English adequately he may appear with a person to act as interpreter for him: And provided further, That no registrant may be represented before the local board by anyone acting as attorney or legal counsel.” 13 Fed. Reg. 4858.
      Section 1624.1 (a) was amended by President Johnson by Executive Order No. 11350 on May 3, 1967, in respects not material here. 32 Fed. Reg. 6961.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Black,

license: Public Domain

text:
    MONITOR PATRIOT CO. et al. v. ROY, EXECUTRIX
    No. 62.
    Argued December 17, 1970
    Decided February 24, 1971

      Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and HarlaN, BreNNAN, White, Marshall, and Blackmun, JJ., joined. White, J., filed a concurring opinion, post, p. 301. Black, J., filed an opinion concurring in the judgment and dissenting in part, in which Douglas, J., joined, post, p. 277.

      Edward Bennett Williams argued the cause for petitioners. With him on the briefs were Harold Ungar and Joseph A. Millimet.

      Stanley M. Brown argued the cause and filed a brief for respondent.
   Mr. Justice Stewart

delivered the opinion of the Court.

On September 10, 1960, three days before the New Hampshire Democratic Party’s primary election of candidates for the United States Senate, the Concord Monitor, a daily newspaper in Concord, New Hampshire, published a syndicated “D. C. Merry-Go-Round” column discussing the forthcoming election. The column spoke of political maneuvering in the primary campaign, referred to the criminal records of several of the candidates, and characterized Alphonse Roy, one of the candidates, as a “former small-time bootlegger.” Roy was not elected in the primary, and he subsequently sued the Monitor Patriot Co. and the North American Newspaper Alliance (NANA), the distributor of the column, for libel.

The newspaper and NANA offered “truth” as their primary defense at trial, and evidence was presented on the issue of whether or not Roy had in fact been a bootlegger during the prohibition era. The defendants also alleged that they had published in good faith, without malice, with a reasonable belief in the probable truth of the charge, and on a lawful occasion. At the close of the evidence, the trial judge instructed the jury at great length on the law to be applied to the case. Three possible defenses emerged from these jury instructions.

First, the trial judge told the jury that Roy was a “public official” by virtue of his candidacy in the primary. As a consequence, a special rule, requiring a showing that the article was false and had been published with “knowledge of its falsity or with a reckless disregard of whether it was false or true,” would apply so long as the libel concerned “official conduct” as opposed to “private conduct.” This private-public distinction was elaborated as follows: “Is it more probable than otherwise that the publication that the plaintiff was a former small-time bootlegger was a public affair on a par with official conduct of public officials?” The trial judge went on:

“As a candidate for the United States Senate, the plaintiff was within the public official concept, and a candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office. That is, anything which might touch on Alphonse Roy’s fitness for the office of United States Senator would come within the concept of official conduct. If it would not touch upon or be relevant to his fitness for the office for which he was a candidate but was rather a bringing forward of the plaintiff’s long forgotten misconduct in which the public had no interest, then it would be a private matter in the private sector.”

The judge then instructed the jury that if it found the libel to be in the “public sector” it must bring in a verdict for NANA, since there had been no evidence that NANA had engaged in knowing or reckless falsehood, but that it still had to decide on the “preponderance of the evidence” whether the newspaper was liable.

Supposing the publication to be in the “private sector,” the trial judge instructed the jury that there were two possible defenses available to the newspaper and NANA. The first was “justification,” which would prevail if the jury found that the article was both true and published on a “lawful occasion.” The second defense was “conditional privilege,” which could prevail even if the jury found the article to be false, but only if it also found that its publication was “on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published.”

The jury returned a verdict of $20,000, of which $10,000 was against the newspaper and $10,000 against NANA. On appeal, the New Hampshire Supreme Court affirmed the judgment, holding that the trial judge properly sent to the jury the question of whether or not the particular libel alleged was “relevant” to Roy’s fitness for office. 109 N. H. 441, 254 A. 2d 832. We granted certiorari in order to consider the constitutional issues presented by the case. 397 U. S. 904.

I

In New York Times Co. v. Sullivan, 376 U. S. 254, 279-280, we held that the First and Fourteenth Amendments require “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves 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.” The rule of New York Times was based on a recognition that the First Amendment guarantee of a free press is inevitably in tension with state libel laws designed to secure society’s interest in the protection of individual reputation. The approach of New York Times was to identify a class of person- — ■ there public officials — and a type of activity — there official conduct — and to require as to defamations respecting them a particularly high standard of liability — knowing falsehood or reckless disregard of the truth. Later cases have made it clear that the applicability of this basic approach is not limited to those in public office or to the performance of official acts, or, for that matter, to conventional civil libel suits. Garrison v. Louisiana, 379 U. S. 64; Curtis Publishing Co. v. Butts, 388 U. S. 130; Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6.

This case went to the jury in December 1966, after our decisions in New York Times and Garrison, but before Curtis and Greenbelt. The trial judge instructed the jury that Roy, as a candidate for elective public office, was a “public official,” and that characterization has not been challenged here. Given the later cases, it might be preferable to categorize a candidate as a “public figure,” if for no other reason than to avoid straining the common meaning of words. But the question is of no importance so far as the standard of liability in this case is concerned, for it is abundantly clear that, whichever term is applied, publications concerning candidates must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office. That New York Times itself was intended to apply to candidates, in spite of the use of the more restricted “public official” terminology, is readily apparent from that opinion’s text and citations to case law. And if it be conceded that the First Amendment was “fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth v. United States, 354 U. S. 476, 484, then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.

II

The jury in this case returned verdicts against both the newspaper and NANA. It is clear, therefore, that it found the bootlegger charge to be in the “private sector,” since it had been instructed that unless it so found it could not impose liability on NANA. It is possible that having made this determination, it then concluded that the charge was true but “unjustified”— that is, that it had been published without a “lawful occasion.” In any event, under the trial judge’s instructions it was also free to return a money verdict if it found that the publication was false and had not been made “in good faith,” for a “justifiable purpose,” and with a “belief founded on reasonable grounds of the truth of the matter published.” Since this standard is far less stringent than that of knowing falsehood or reckless disregard of the truth, the judgment must be reversed unless it can be shown that the New York Times rule is not applicable because of the nature of the libel in question. Cf. Ocala Star-Banner Co. v. Damron, post, p. 295.

The respondent argues that under New York Times a plaintiff has a special burden of proof only as to libels “relating to official conduct,” that for a candidate “official conduct” means “conduct relevant to fitness for office,” and that the public-private issue is one of fact for the jury. In our view, however, the syllogistic manipulation of distinctions between “private sectors” and “public sectors,” or matters of fact and matters of law, is of little utility in resolving questions of First Amendment protection.

In Garrison v. Louisiana, supra, we reversed a conviction for criminal libel of a man who had charged that a group of state court judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to “racketeer influences.” The Louisiana Supreme Court had held that these statements were not “criticisms. ... of the manner in which any one of the eight judges conducted his court when in session,” but rather were accusations of crime and “personal attacks upon the integrity and honesty” of the judges. This Court rejected the proposed distinction:

“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. New 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.” 379 U. S., at 76-77.

Cf. Ocala Star-Banner Co. v. Damron, supra.

The considerations that led us thus to reformulate the “official conduct” rule of New York Times in terms of “anything which might touch on an official’s fitness for office” apply with special force to the case of the candidate. Indeed, whatever vitality the “official conduct” concept may retain with regard to occupants of public office, cf. Garrison, supra, at 72 n. 8, it is clearly of little applicability in the context of an election campaign. The principal activity of a candidate in our political system, his “office,” so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of “purely private” concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry “Foul!” when an opponent or an industrious reporter attempts to demonstrate the contrary. Any test adequate to safeguard First Amendment guarantees in this area must go far beyond the customary meaning of the phrase “official conduct.”

Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of reputations is the staple of election campaigns, and damage to reputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may have full recourse is a question we need not decide in this case. The trial judge presented the issue to the jury in the form of the question: “Is it more probable than otherwise that the publication that the plaintiff was a former small-time bootlegger was a public affair on a par with official conduct of public officials?” This instruction, and the others like it, left the jury far more leeway to act as censors than is consistent with the protection of the First and Fourteenth Amendments in the setting of a political campaign.

The application of the traditional concepts of tort law to the conduct of a political campaign is bound to raise dangers for freedom of speech and of the press. The reasonable-man standard of liability, for example, serves admirably the essential function of imposing an objective and socially acceptable limit on the freedom of an individual to act with relation to others. But under our system of government, we have chosen to afford protection even to “opinions that we loathe and believe to be fraught with death,” Abrams v. United States, 250 U. S. 616, 630 (Holmes, J., dissenting). A community that imposed legal liability on all statements in a political campaign deemed “unreasonable” by a jury would have abandoned the First Amendment as we know it. Likewise, a “preponderance of the evidence” burden of proof plays an indispensable role in the control of private negligence. But we have recognized that in the realm of political belief “the tenets of one man may seem the rankest error to his neighbor,” and that the advocates whom we protect may resort to “exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement,” Cantwell v. Connecticut, 310 U. S. 296, 310. It is simply inconsistent with this commitment to permit the imposition of liability for political speech that “more probably than otherwise” in the opinion of the jury “would not touch upon or be relevant” to a candidate’s fitness for office. Cf. Speiser v. Randall, 357 U. S. 513, 525-526; Smith v. California, 361 U. S. 147.

It is perhaps unavoidable that in the area of tension between the Constitution and the various state laws of defamation there will be some uncertainty as to what publications are and what are not protected. The mental element of “knowing or reckless disregard” required under the New York Times test, for example, is not always easy of ascertainment. “Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law.” St. Amant v. Thompson, 390 U. S. 727, 730-731. But there is a major, and in this case decisive, difference between liability based on a standard of care, and liability based on a judgment of the “relevance” of a past incident of criminal conduct to an official’s or a candidate’s fitness for office. A standard of care “can be neutral with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood.” Curtis Publishing Co. v. Butts, supra, at 153 (opinion of Harlan, J.). A standard of “relevance,” on the other hand, especially such a standard applied by a jury under the preponderance-of-the-evidence test, is unlikely to be neutral with respect to the content of speech and holds a real danger of becoming an instrument for the suppression of those “vehement, caustic, and sometimes unpleasantly sharp attacks,” New York Times, supra, at 270, which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.

We therefore hold as a matter of constitutional law that a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official’s or a candidate’s fitness for office for purposes of application of the “knowing falsehood or reckless disregard” rule of New York Times Co. v. Sullivan. Since the jury in this case was permitted to make its own unguided determination that the charge of prior criminal activity was not “relevant,” and that the New York Times standard was thus inapplicable, the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

[For concurring opinion of Mr. Justice White, see post, p. 301.]

Separate opinion of

Mr. Justice Black,

with whom Mr. Justice Douglas joins.

I concur in the judgments of the Court in this case and in No. 109 and No. 118, for the reasons set out in my concurring opinion in New York Times Co. v. Sullivan, 376 U. S. 254, 293 (1964), in my concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U. S. 130, 170 (1967), and in Mr. Justice Douglas’ concurring opinion in Garrison v. Louisiana, 379 U. S. 64, 80 (1964). However, I dissent from those portions of the opinions in this case and No. 118 which would permit these libel cases to be tried again under a different set of jury instructions. As I have stated before, “[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 judgments.” Curtis Publishing Co. v. Butts, supra, at 172 (separate opinion of Black, J.).

       The text of the portion of the column concerning the New Hampshire primary was as follows:
      “Political Snafu
      “Rock-ribbed Republican New Hampshire, whose ex-Gov. Sherman Adams was top kick in the White House for years and whose Sen. Styles Bridges is still top kick on the GOP side of the Senate, is so fouled up in a primary snafu that the state may go Democratic this year. The primary verdict is due next Tuesday.
      “Even that able Senate stalwart, Styles Bridges, is restirring himself. He has nothing to worry about from his Republican opponent, but the Democrats have put up a dynamic Dartmouth professor, Herbert Hill, against him. The professor came within 11,000 votes of defeating Sherman Adams, lately of vicuna-coat fame, in the 1948 gubernatorial race.
      “Curiously, the Democratic primary has been cluttered with a motley assortment of candidates who have challenged Hill for the privilege of running against Bridges. That sly, old Republican disclaims any connection with it, but he appears pleased over the muddying of Democratic waters.
      “One of Hill’s primary opponents Frank L. Sullivan, was released from the Grasmere County Work Farm just in time to file for the Senate. With a police record of no fewer than 19 convictions for drunkenness since 1945, he was serving his latest 90-day sentence.
      “Curious Call
      “To make sure he would get out in time to run for the Senate, a former small-time bootlegger and later U. S. Marshal, Alphonse Roy, telephoned the Grasmere warden about Sullivan.
      “Ralph LaVallee in charge of Grasmere, admitted to this column that he had received a telephone inquiry from Roy as to whether Sullivan would be released in time to file. But the warden denied another report that Roy had announced he was calling ‘on behalf of my friend Styles.’
      “ ‘I don’t want to get implicated in anything like that,’ said LaVallee, ‘Roy didn’t mention Senator Bridges/
      “Sullivan happily got out of the workhouse in time to run for the most distinguished legislative body in the world. And who should turn up on the ballot but the same Alphonse Roy who was so eager to get him out of the clink.
      “Because of the peculiar population division of New Hampshire, the Irish Catholics may be inclined to vote for a Frank Sullivan while the French Canadians could be attracted by a name like Alphonse Roy. The effect would be to cut down Herb Hill’s chances.
      “Convicts For Senator
      “Two other curious candidates, who tried to run in the Democratic primary against Hill, were Harold P. McCarthy who has a record of nine convictions for drunkenness, assault, and brawling, and Clement P. Robinson Jr., who has a record of six brushes with the law for drunkenness and traffic violations. Robinson also received a 30-day suspended sentence for stealing two power lawnmowers and a conviction for the nonsupport of his wife and three children.
      "But at least Professor Hill managed to persuade the New Hampshire Ballot Law Commission into knocking McCarthy and Robinson off the ballot,”

       The trial judge gave the jury the following definition of a “lawful occasion”:
      “If the end to be attained by the publication is justifiable, that is, to give useful information to those who have a right and ought to know in order that they may act upon such information, the occasion is lawful. Where, however, there is merely the color of a lawful occasion and the defendant, instead of acting in good faith, assumes to act for some justifiable end merely as a pretense to publish and circulate defamatory matter, or for other unlawful purpose, he is liable in the same manner as if such pretense had not been resorted to.”
      The trial judge placed the burden of showing a “lawful occasion” on the defendants.'

       One of the citations was to a Kansas decision which admirably-stated the case for the inclusion of candidates within the rule:
      “[I]t is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.” Coleman v. MacLennan, 78 Kan. 711, 724, 98 P. 281, 286 (1908).

         A commentator writing in 1949 described the ambience as follows : “Charges of gross incompetence, disregard of the public interest, communist sympathies, and the like have usually filled the air; and hints of bribery, embezzlement, and other criminal conduct are not infrequent. If actionable defamation is possible in this field, one might suppose that the chief energies of the courts, for some time after every political campaign, would be absorbed by libel and slander suits.” Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875,

      [This opinion applies also to No. 109, Time, Inc. v. Pape, post, p. 279, and No. 118, Ocala Star Banner Co. et al. v. Damron, post, p. 295.]


author:
Mr. Justice Stewart
      Mr. Justice Harlan,

text:
    TIME, INC. v. PAPE
    No. 109.
    Argued December 16, 1970
    Decided February 24, 1971

      Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, White, Marshall, and Blackmun, JJ., joined. Black, J., filed an opinion concurring in the judgment, in which Douglas, J., joined, ante, p. 277. HarlaN, J., filed a dissenting opinion, post, p. 293.

      Don H. Reuben argued the cause for petitioner. With him on the briefs were Harold R. Medina, Jr., and Lawrence Gunnels.

      Patrick W. Dunne argued the cause for respondent. With him on the brief were Robert J. Nolan and Edward J. Hladis.

   Mr. Justice Stewart

delivered the opinion of the Court.

In November 1961, the United States Commission on Civil Rights issued the fifth volume of its Report for that year, a document entitled Justice. A part of Justice was devoted to a study of “police brutality and related private violence,” and contained the following paragraph:

“Search, seizure, and violence: Chicago, 1958.— The Supreme Court of the United States decided the case of Monroe v. Pape on February 20, 1961. Although this decision did not finally dispose of the case, it did permit the plaintiff to sue several Chicago police officers for violation of the Federal Civil Rights Acts on the basis of a complaint which alleged that:
. . [0]n October 29, 1958, at 5:45 a. m., thirteen Chicago police officers led by Deputy Chief of Detectives Pape, broke through two doors of the Monroe apartment, woke the Monroe couple with flashlights, and forced them at gunpoint to leave their bed and stand naked in the center of the living room; that the officers roused the six Monroe children and herded them into the living room; that Detective Pape struck Mr. Monroe several times with his flashlight, calling him 'nigger' and 'black boy’; that another officer pushed Mrs. Monroe; that other officers hit and kicked several of the children and pushed them to the floor; that the police ransacked every room, throwing clothing from closets to the floor, dumping drawers, ripping mattress covers; that Mr. Monroe was then taken to the police station and detained on 'open’ charges for ten hours, during which time he was interrogated about a murder and exhibited in lineups; that he was not brought before a magistrate, although numerous magistrate’s courts were accessible; that he was not advised of his procedural rights; that he was not permitted to call his family or an attorney; that he was subsequently released without criminal charges having been filed against him.” Justice 20-21.

A week later, Time, a weekly news magazine, carried a report of the Commission’s new publication. The Time article began:

“The new paperback book has 307 pages and the simple title Justice. It is the last of five volumes in the second report of the U. S. Commission on Civil Rights, first created by Congress in 1957. Justice carries a chilling text about police brutality in both the South and the North — and it stands as a grave indictment, since its facts were carefully investigated by field agents and it was signed by all six of the noted educators who comprise the commission.”

There followed a description, with numerous direct quotations, of one of the incidents described in Justice, and then the following account of the Monroe incident:

“Shifting to the North, the report cites Chicago police treatment of Negro James Monroe and his family, who were awakened in their West Side apartment at 5:45 a. m. by 13 police officers, ostensibly investigating a murder. The police, says Justice, 'broke through two doors, woke the Monroe couple with flashlights ....’”

The Time article went on to quote at length from the summary of the Monroe complaint, without indicating in any way that the charges were those made by Monroe rather than independent findings of the Commission.

Pape sued Time for libel in the United States District Court for the Northern District of Illinois, there being diversity of citizenship. Time moved to dismiss the suit on the ground that the article was fair comment on a government report and therefore privileged under Illinois law; the District Court granted the motion, but the Court of Appeals for the Seventh Circuit reversed. 318 F. 2d 652. After remand, this Court decided New York Times Co. v. Sullivan, 376 U. S. 254, and on the basis of that decision the District Court granted Time’s motion for summary judgment. On appeal, the Court of Appeals again reversed, holding that there must be a trial on the question of whether Time’s failure to make clear that it was reporting no more than allegations showed “actual malice.” 354 F. 2d 558.

At the trial, Pape called the policemen who had participated in the Monroe raid. They all testified that nothing resembling the events described in the Time article as findings of the Commission had occurred. There was also extensive testimony from the Time staff member who had written the article and from the “researcher” who had been responsible for checking its factual accuracy. The author testified that he had written the article on the basis of the Justice report itself, a Commission press release accompanying the report, and a New York Times news story describing Justice. He conceded that he knew the meanings of the words “alleged” and “complaint,” but denied that the Time article was false, given the full context of the Justice report. The researcher testified that she had consulted several newspaper articles describing Monroe’s claims about the raid, and several articles describing Pape’s previous career. She said that she had also read two dispatches from Time’s Chicago correspondent, one of them describing Monroe’s charges without comment as to their truth and the other asserting as fact that the events had actually occurred. She conceded that she was aware of the omission of the word “alleged” in the Time article, but said that she believed the article to have been true as written.

At the close of the evidence, the District Court granted Time’s motion for a directed verdict, 294 F. Supp. 1087, and Pape appealed for a third time. The Court of Appeals again reversed the District Court, holding that it was for the jury to determine whether Time’s omission of the word “alleged” showed “actual malice.” 419 F. 2d 980. We granted certiorari in order to decide the constitutional issue presented under the First and Fourteenth Amendments. 397 U. S. 1062.

The District Court and the Court of Appeals were in agreement that the plaintiff Pape was a “public official” by virtue of his position as Deputy Chief of Detectives of the Chicago Police Department, and that the charges contained in the Monroe complaint, the Justice report, and the Time story concerned his “official conduct.” The two courts differed only in their application of the rule of New York Times Co. v. Sullivan, 376 U. S. 254, which “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves 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.” Id., at 279-280.

The only question before us, therefore, is whether the Court of Appeals correctly applied this constitutional rule to the facts of this case in reversing the directed verdict for the defendant. Inquiries of this kind are familiar under the settled principle that “[i]n cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will re-examine the eviden-tiary basis on which those conclusions are founded.” Niemotko v. Maryland, 340 U. S. 268, 271. Cf. Napue v. Illinois, 360 U. S. 264, 271-272. And in cases involving the area of tension between the First and Fourteenth Amendments on the one hand and state defamation laws on the other, we have frequently had occasion to review “the evidence in the . . . record to determine whether it could constitutionally support a judgment” for the plaintiff. New York Times, supra, at 284-285; Beckley Newspapers v. Hanks, 389 U. S. 81, 83; St. Amant v. Thompson, 390 U. S. 727; Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6, 11.

The Time news article reported as a charge by the Commission what was, in its literal terms, a description by the Commission of the allegations in a complaint filed by a plaintiff in a civil rights action. This situation differs in a number of respects from the conventional libel case. First, the publication sued on was not Time's independent report of the Monroe episode, but its report of what the Civil Rights Commission had said about that episode. Second, the alleged damage to reputation was not that arising from mere publication, but rather that resulting from attribution of the Monroe accusations to an authoritative official source. Finally, Time made no claim of good-faith error or mere negligence. Both the author of the article and the researcher admitted an awareness at the time of publication that the wording of the Commission Report had been significantly altered, but insisted that its real meaning had not been changed.

The Court of Appeals concluded that it was obvious that the omission of the word “allegation” or some equivalent was a “falsification” of the Report. Since the omission was admittedly conscious and deliberate, the only remaining question in the court’s view was whether there had been “malice” in the sense of an “intent to inflict harm through falsehood.” Such an intent, the court thought, might reasonably be inferred from the very act of deliberate omission, and the issue of malice was consequently one for the jury.

Analysis of this kind may be adequate when the alleged libel purports to be an eyewitness or other direct account of events that speak for themselves. For example, in St. Amant, supra, it made good sense to separate the question of the truth of St. Amant’s charges of corruption and official misbehavior from the question of whether he had an adequate basis to believe them true. But a vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said rather than of what anybody did. Indeed, perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like. The question of the “truth” of such an indirect newspaper report presents rather complicated problems.

A press report of what someone has said about an underlying event of news value can contain an almost infinite variety of shadings. Where the source of the news makes bald assertions of fact — such as that a policeman has arrested a certain man on a criminal charge— there may be no difficulty. But where the source itself has engaged in qualifying the information released, complexities ramify. Any departure from full direct quotation of the words of the source, with all its qualifying language, inevitably confronts the publisher with a set of choices.

The Civil Rights Commission’s Justice report is a typical example of these problems. The underlying story that gave the report newsworthiness was the picture of police violence against citizens. Many of the incidents included were quite clearly designed to shock, anger, and alarm the reader, indeed to move him into a position of support for specific legislative recommendations of the Commission. Yet the attitude of the Commission toward the factual verity of the episodes recounted was anything but straightforward.

First, the episodes were presented in the context of a report which from the first page purported to be dealing with a problem of unquestionable reality and seriousness:

“In 1931 President Hoover’s Wickersham Committee found extensive evidence of police lawlessness, including unjustified violence. Sixteen years later another Presidential Committee, this one appointed by President Truman, concluded that police brutality, especially against the unpopular, the weak, and the defenseless, was a distressing problem. And now in 1961 this Commission must report that police brutality is still a serious problem throughout the United States.” Justice 1.

Two pages later, the report said that

“The Commission is particularly impressed by the fact that most police officers never resort to brutal practices. Because of this fact, instances of brutality or discrimination in law enforcement stand out in bold relief. It is hoped that by focusing the attention of the President, the Congress, and the public on these remaining incongruities, this Report may contribute to their correction.”

This process of focusing attention began on the next page with the chapter heading, in large type: “UNLAWFUL POLICE VIOLENCE.” There followed the crucial description of the foundations on which the ensuing reports were based:

“In the text of this chapter the Commission briefly describes the alleged facts in 11 typical cases of police brutality. They are presented in the belief that they contribute to an understanding of the problem. The allegations of misconduct are supported in several cases by criminal convictions or findings by impartial agencies; in others, by sworn testimony, affidavits from eye witnesses, or by staff field investigations. In no case has the Commission determined conclusively whether the complainants or the officers were correct in their statements. This is the function of a court. The Commission is of the opinion, however, that the allegations appeared substantial enough to justify discussion in this study.”

This statement may fairly be characterized as extravagantly ambiguous. On the one hand, what was to follow was “11 typical cases of police brutality,” each of which “contribute [s] to an understanding of the problem,” and was “substantial enough to justify discussion” in the study. A range of sources was described, each of a nature to inspire confidence in the reader. But, the reader was nonetheless told that these were “alleged facts,” “allegations of misconduct,” which had not been “determined conclusively” to be “correct.” The suggestion that such a conclusive determination could be made only by a court capped the confusion: in context it was impossible to know whether the Commission was seeking to encourage belief or skepticism regarding the incidents about to be described.

Turning the page, the reader was confronted with another heading in capitals, “PATTERNS OF POLICE BRUTALITY,” and then the descriptions of the various incidents began. Each had an italicized heading (e. g., “The killing of a Negro in Georgia: 1943”) followed by an account giving both sides of the story and carefully describing all facts as “alleged” or using direct quotations. The tone of total neutrality as to the truth or falsity of the claims of brutality was frequently marred, however, by remarks that appeared to indicate the Commission’s unexpressed views. At the end of a description entitled “The killing of a Negro in Georgia: 1958,” for example, the report said, “[n]o local disciplinary or criminal action was taken against any of the officers involved. The attitude of local authorities toward police was protective in this and several other cases of alleged brutality that occurred within a brief period . . . .” Id., at 11.

The description of the Monroe incident bore the italicized title: “Search, seizure, and violence: Chicago, 1958.” Unlike the reports of the other incidents, however, this report limited itself to the summary of a plaintiff’s complaint in a lawsuit, as indicated at the outset of this opinion. No attempt was made to give any other version of the story, and the next report (‘‘The killing of a Negro in Cleveland: 1959”) followed immediately after the end of the quotation.

In a chapter entitled “Conclusions,” the Commission set forth its findings and recommendations. These included a finding that “police brutality by some State and local officers presents a serious and continuing problem in many parts of the United States. Both whites and Negroes are the victims, but Negroes are the victims of such brutality far more, proportionately, than any other group in American society.” The recommendations included proposals for a grant-in-aid program to improve the quality of state and local police forces and for passage of a federal statute outlawing illegal police violence. Id., at 109-112. Since the series of incidents described earlier in the report was the only evidence the Commission presented in support of its findings and recommendations, there was a logically inevitable implication that the Commission must have believed that the incidents described had in truth occurred.

In light of the totality of what was said in Justice, we cannot agree that, when Time failed to state that the Commission in reporting the Monroe incident had technically confined itself to the allegations of a complaint, Time engaged in a “falsification” sufficient in itself to sustain a jury finding of “actual malice.” The author of the Time article testified, in substance, that the context of the report of the Monroe incident indicated to him that the Commission believed that the incident had occurred as described. He therefore denied that he had falsified the report when he omitted the word “alleged.” The Time researcher, who had read newspaper stories about the incident and two reports from a Time reporter in Chicago, as well as the accounts of Pape’s earlier career, had even more reason to suppose that the Commission took the charges to be true.

Time’s omission of the word “alleged” amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities. The deliberate choice of such an interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of “malice” under New York Times. To permit the malice issue to go to the jury because of the omission of a word like “alleged,” despite the context of that word in the Commission Report and the external evidence of the Report’s overall meaning, would be to impose a much stricter standard of liability on errors of interpretation or judgment than on errors of historic fact.

New York Times was premised on a recognition that, as Madison put it, “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” 4 J. Elliot’s Debates on the Federal Constitution 571 (1876). With respect to errors of fact in reporting events, we said in New York Times:

“A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions— and to do so on pain of libel judgments virtually unlimited in amount — leads to . . . 'self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” 376 U. S., at 279.

These considerations apply with even greater force to the situation where the alleged libel consists in the claimed misinterpretation of the gist of a lengthy government document. 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.

In certain areas of the law of defamation, New York Times added to the tort law of the individual States a constitutional zone of protection for errors of fact caused by negligence. The publisher who maintains a standard of care such as to avoid knowing falsehood or reckless disregard of the truth is thereby given assurance that those errors that nonetheless occur will not lay him open to an indeterminable financial liability. This protection would not exist for errors of interpretation were the analysis of the Court of Appeals to be adopted, for once a jury was satisfied that the interpretation was “wrong,” the error itself would be sufficient to justify a verdict for the plaintiff.

In St. Amant v. Thompson, supra, at 731, we said:

“Our cases . . . have furnished meaningful guidance for the further definition of a reckless publication. In New York Times, supra, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. Louisiana, 379 U. S. 64 (1964) . . . the opinion emphasized the necessity for a showing that a false publication was made with a ‘high degree of awareness of . . . probable falsity.’ 379 U. S., at 74. . . . 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.”

Applying this standard to Time’s interpretation of the Commission Report, it can hardly be said that Time acted in reckless disregard of the truth. Given the ambiguities of the Commission Report as a whole, and the testimony of the Time author and researcher, Time’s conduct reflected at most an error of judgment. We have held that if “the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive,’ ” misstatements of this kind must have the protection of the First and Fourteenth Amendments. New York Times, supra, at 271-272.

We would add, however, a final cautionary note. Nothing in this opinion is to be understood as making the word “alleged” a superfluity in published reports of information damaging to reputation. Our decision today is based on the specific facts of this case, involving as they do a news report of a particular government publication that purported to describe the specific grounds for perceiving in 1961 “a serious problem throughout the United States.” “Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.” St. Amant v. Thompson, supra, at 732.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[For separate opinion of Mr. Justice Black, see ante, p. 277.]

Mr. Justice Harlan,

dissenting.

I would affirm the judgment of the Court of Appeals, essentially for the reasons stated in Judge Duffy’s opinion for that court. The treatment of this case by our Court, however, prompts me to venture these additional comments.

I fully agree with the rule first enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), that restricts the liability of those who utter defamatory falsehoods regarding public officials. We there recognized that because “erroneous statement is inevitable in free debate,” id., at 271, “neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct.” Id., at 273. But these considerations did not persuade us to rule that the Constitution grants absolute immunity to everyone, be it the news media or anyone else, who libels a public official, or to conclude that the usual processes of law are inadequate for dealing with this kind of litigation. Rather, we decided that the substantial First Amendment interests implicated in any libel suit of this sort would be adequately served by a constitutional rule that subjects such a statement to the sanctions of the common law of libel only where it was uttered “with 'actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280.

The step taken today, whereby this Court undertakes to judge, “on the specific facts of this case,” ante, at 292, whether a jury could reasonably find that Time magazine’s characterization of the Commission’s report was sufficiently inaccurate to permit the concomitant finding that it was published with “malice,” is, in my judgment, not warranted.

I can perceive no rational basis for distinguishing this case from one in which a newspaper or an individual seeks to have this Court review the record upon which a properly instructed jury found liability, where evidence sufficient to support its verdict exists, and where these matters have been reviewed by a court of appeals applying correct legal standards. As I see things, the Court identifies no such distinguishing feature about this case.

While it is true, of course, that this Court is free to reexamine for itself the evidentiary bases upon which rest decisions that allegedly impair or punish the exercise of Fourteenth Amendment freedoms, this does not mean that we are of necessity always, or even usually, compelled to do so. Indeed, it is almost impossible to conceive how this Court might continue to function effectively were we to resolve afresh the underlying factual disputes in all cases containing constitutional issues. Nor can I discern in those First Amendment considerations that led us to restrict the States’ powers to regulate defamation of public officials any additional interest that is not served by the actual-malice rule of New York Times, supra, but is substantially promoted by utilizing this Court as the ultimate arbiter of factual disputes in those libel cases where no unusual factors, such as allegations of harassment or the existence of a jury verdict resting on erroneous instructions, cf. New York Times, supra, are present. While I am confident that the Court does not intend its decision to have any such broad reach, I fear that what is done today may open a door that will prove difficult to close.

Having determined that the court below properly defined the quality of proof required of Pape by New York Times and that it applied the correct standard of review in passing upon the trial judge’s decision to grant a directed verdict — determinations that I do not think my Brethren dispute — I would stop the inquiry at this point and affirm the judgment of the Court of Appeals.

      On January 24, 1963, after a jury finding of liability, judgment was entered against Pape in the civil rights suit brought against him by Monroe. The jury awarded Monroe damages of $8,000. Pape did not appeal, and the judgment was satisfied.


author: Mr. Justice Stewart Mr. Justice White,

text:
    OCALA STAR-BANNER CO. et al. v. DAMRON
    No. 118.
    Argued December 17, 1970
    Decided February 24, 1971
    StewaRT, J., delivered the opinion of the Court, in which BURGER, C. J., and HarlaN, BreNNAN, White, Marshall, and BlacicmuN, JJ., joined. White, J., filed a concurring opinion, post, p. 301. Blacic, J., filed an opinion concurring in the judgment and dissenting in part, in which Douglas, J., joined, ante, p. 277.

      Harold B. Wahl argued the cause and filed briefs for petitioners.

      Wallace Dunn argued the cause and filed a brief for respondent.
   Mr. Justice Stewart

delivered the opinion of the Court.

The Ocala Star-Banner Co., a petitioner in this case, publishes a small daily newspaper serving four counties in rural Florida. On April 18, 1966, the Star-Banner printed a story to the effect that the respondent, Leonard Damron, then the mayor of Crystal River in Citrus County and a candidate for the office of county tax assessor, had been charged in a federal court with perjury, and that his case had been held over until the following term of that court. This story was false. The respondent had not been charged with any crime in federal court, nor had any case involving him been held over, but the story was substantially accurate as to his brother, James Damron. Two weeks later the respondent was defeated in the election for county tax assessor.

He filed the present suit against the Star-Banner in the Circuit Court of Marion County, Florida, alleging that the article was “libelous per se,” and that it had caused him “irreparable damages to his reputation, as an individual, public officer, candidate for public office and as a businessman.” He asked $50,000 as compensatory damages and $500,000 as punitive damages. At the trial, the newspaper did not deny that the story was wholly false as to the respondent, and explained the error as the result of a “mental aberration” by one of the paper’s area editors. The area editor had been working for the paper for a little more than a month. He testified that he had run several stories about the political activities of the respondent, but had never heard of his brother James. When a local reporter telephoned in the story, correctly identifying the protagonist as James Damron, he inadvertently changed the name. The respondent presented evidence tending to cast doubt on this explanation.

At the close of the evidence, the respondent moved for a directed verdict on the issue of liability, and the trial judge granted the motion. The case then went to the jury on the issue of damages, with instructions which included the following:

“The Court instructs the Jury that you need not consider whether a libel has been committed and instructs you that there must be a finding in favor of the Plaintiff in accordance with the other instructions given you by the Court. ... You are instructed that in this case the charge made against the Plaintiff was libelous, per se, and that it created a presumption of damage to the Plaintiff but that if this presumption of damage is overcome by evidence offered by the parties and there is no proof of general damage to the Plaintiff by a preponderance of the evidence, then you cannot award anything more than nominal damages to the Plaintiff. The Court instructs the Jury that if you believe from the evidence and by the instructions of the Court that the Plaintiff is entitled to recover from the Defendants, then in addition to any compensatory damages, if any, that he may have — may recover, you may, as hereinafter stated, award the Plaintiff punitive damages when malice is shown or implied. . . . The Court instructs the Jury that malice may be implied or inferred where the charge of a felony is imputed to the Plaintiff. In other words, if you are reasonably satisfied from the evidence that the Defendants imputed the charge of perjury to the Plaintiff, of which he was not guilty, then you may infer that it was maliciously made and it is not necessary to prove any express malice or ill-will in order to warrant a verdict for punitive damages in favor of the Plaintiff.”

The jury awarded Damron compensatory damages of $22,000 but failed to award any punitive damages.

The Star-Banner moved for a new trial, arguing that the case should have been sent to the jury under the “actual malice” test laid down by this Court in New York Times Co. v. Sullivan, 376 U. S. 254. The trial judge denied the motion on the ground that New York Times and later cases “relating to public officials or public figures in the official conduct of their office or position are not applicable to this cause of action which was founded upon a newspaper publication of the Defendants which was libelous per se and made no reference to the public offices held or sought by the Plaintiff.” The Florida District Court of Appeal affirmed the judgment, holding that:

“An examination of the defamatory publication which gave rise to this case reveals that the plaintiff’s official conduct or the manner in which he performed his duties were not the basis for the inaccuracy here involved; and, hence, it does not come within the protection afforded by the rule announced in the New York Times case. It follows therefore that the trial judge correctly held that it was unnecessary for the plaintiff to show malice.” 221 So. 2d 459, 461.

The Supreme Court of Florida refused to review the judgment, 231 So. 2d 822, and we granted certiorari to consider the federal constitutional issues presented. 397 U. S. 1073.

As the mayor of Crystal River, the respondent Leonard Damron was without question a “public official” within the meaning given the term in New York Times Co. v. Sullivan, supra. As such, he clearly fell within the rule that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves 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.” Id., at 279-280. In his status as a candidate for the office of county tax assessor, he fell within the same rule. Monitor Patriot Co. v. Roy, ante, p. 265.

Yet it is clear that the New York Times test was not applied in the trial of this case. The trial judge himself resolved the issues of publication and falsehood against the newspaper. He then instructed the jury that since the article was “libelous, per se,” its only task was to determine damages. Since the respondent was permitted to recover without a finding that the newspaper either knew the article was false or published it in reckless disregard of its truth or falsity, the judgment must be reversed unless there is some basis for saying that the rule of New York Times does not apply to the particular libel in question. Henry v. Collins, 380 U. S. 356; Curtis Publishing Co. v. Butts, 388 U. S. 130, 142-143, 158 (opinion of Harlan, J.); Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6.

The respondent urges upon us that a basis for distinguishing New York Times does exist, because the rule of that case applies only to “official conduct,” and a charge of indictment for perjury committed during testimony in a federal civil rights suit is a purely “private” libel. This contention is disposed of by our decision today in Monitor Patriot Co. v. Roy, supra. In that case we held that a charge of criminal conduct against an official or a candidate, no matter how remote in time or place, is always “relevant to his fitness for office” for purposes of applying the New York Times rule of knowing falsehood or reckless disregard of the truth. Public discussion about the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule. And under any test we can conceive, the charge that a local mayor and candidate for a county elective post has been indicted for perjury in a civil rights suit is relevant to his fitness for office. Cf. Garrison v. Louisiana, 379 U. S. 64, 77.

The First and Fourteenth Amendments require reversal of the judgment. The case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

[For separate opinion of Mr. Justice Black, see ante, p. 277.]

Mr. Justice White,

concurring.

Inevitably, New York Times Co. v. Sullivan, 376 U. S. 254 (1964), by imposing on libel and slander plaintiffs the burden of showing knowing or reckless falsehood in specified situations will result in extending constitutional protection to lies and falsehoods which, though neither knowing nor reckless, do severe damage to personal reputation. The First Amendment is not so construed, however, to award merit badges for intrepid but mistaken or careless reporting. Misinformation has no merit in itself; standing alone it is as antithetical to the purposes of the First Amendment as the calculated lie. Garrison v. Louisiana, 379 U. S. 64, 75 (1964). Its substance contributes nothing to intelligent decisionmaking by citizens or officials; it achieves nothing but gratuitous injury. The sole basis for protecting publishers who spread false information is that otherwise the truth would too often be suppressed. That innocent falsehoods are sometimes protected only to ensure access to the truth has been noted before, St. Amant v. Thompson, 390 U. S. 727, 732 (1968), and it is well that the thought is repeated today in Time, Inc. v. Pape, ante, p. 279, at 292.

       The story appeared under a three-column head (“Damron Case Passed Over To Next U. S. Court Term”) and was as follows:
      “INGLIS — A case charging local garage owner Leonard Damron with perjury was passed over for the present term of Federal Court after Damron entered a not guilty plea before Federal Judge Harrold Carswell in Gainesville.
      “Damron was indicted by a Federal grand jury in Tallahassee last January and charged with perjury in a 1964 civil case which resulted in damages of $65,000 being awarded to a Yankeetown couple.
      “Mrs. Gail Finley alleged that Levy County Deputy Sammy Cason slammed on brakes causing her to injure her neck in October of 1962.
      “Cason and Deputy Walter Beckham went to Yankeetown with a warrant for the arrest of Mrs. Jean Rich Sill, who was allegedly in the Izaac Walton Lodge.
      “According to officials, the Finleys interfered with the officers, were arrested and charged with interfering with arrest.
      “A conviction obtained in County Court has been upheld through appeals by the Florida State Supreme Court.
      “The civil suit which followed was filed under an old, 'little-used federal statute in which the Finleys charged former sheriff J. W. Turner and Cason with a violation of their civil rights.
      “Damron testified that he had seen Mrs. Finley in a neck brace in late 1957 or early 1958 several years prior to the incident, but numerous other witnesses, summoned by the plaintiff, gave testimony, saying that Mrs. Finley had not previously worn a brace.
      “Damron was released on $2,000 bond, following his arrest by federal marshals Jan. 27.”

       The Star-Banner printed two retractions before the election.

       The respondent’s argument that the newspaper “admitted liability” at trial, and that the constitutional issue of the applicability of New York Times Co. v. Sullivan, 376 U. S. 254, is therefore not properly before us, must be rejected since both the trial court on motion for new trial and the state appellate court considered and passed upon the constitutional question as though properly raised. WHYY v. Glassboro, 393 U. S. 117, 119; Raley v. Ohio, 360 U. S. 423, 436; Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123, 134.

         New York Times Co. v. Sullivan, 376 U. S. 254, 283 n. 23.
      Both the trial judge on motion for new trial and the District Court of Appeal rested their conclusion that New York Times did not apply partly on the ground that the defamatory article nowhere mentioned the respondent’s status as mayor of Crystal River or as a candidate for county tax assessor. The respondent has not pursued that theory here.

       This opinion applies also to No. 62, Monitor Patriot Co. v. Roy, ante, p. 265.