source: Caselaw Access Project

author: Justice O’Connor Justice Brennan, Justice Stevens,

license: Public Domain

text:
    PHILADELPHIA NEWSPAPERS, INC., et al. v. HEPPS et al.
    No. 84-1491.
    Argued December 3, 1985
    Decided April 21, 1986
    0’ConnOR, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, Blackmun, and Powell, JJ., joined. BREnnan, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 779. Stevens, J., filed a dissenting opinion, in which BURGER, C. J., and White and Rehnquist, JJ., joined, post, p. 780.

      David H. Marion argued the cause for appellants. With him on the briefs were Samuel E. Klein and Kerry L. Adams.

      Ronald H. Surkin argued the cause for appellees. With him on the brief was Edwin P. Rome

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by John G. Koeltl, James C. Goodale, Burt Neuborne, Jack D. Novick, Stefan Presser, Bruce W. Sanford, W. Terry Maguire, R. Bruce Rich, Robert D. Sack, and Alice Neff Lucan; for the American Federation of Labor and Congress of Industrial Organizations by David M. Silberman and Laurence Gold; for Capital Cities Communications, Inc., et al. by Bernard G. Segal, Jerome J. Shestack, Carl A. Solano, Elihu A. Greenhouse, and Lawrence Gunnels; and for Print and Broadcast Media et al. by E. Barrett Prettyman, Jr., Dan Paul, Franklin G. Burt, StevenM. Kamp, John H. McElhaney, Richard M. Schmidt, Jr., Peter G. Banta, Stuart F. Pierson, Neil L. Shapiro, Wilford W. Kirton, Jr., David M. Olive, Theodore Sherbow, Robert Hay dock, Jr., Peter Michael Meloy, W. Joel Blass, William W. Ogden, Eric D. Lanphere, Michael A. Gross, Conrad M. Shumadine, William A. Niese, Norton L. Armour, H. Hugh Stevens, Jr., Thomas T. Cobb, Michael Minnis, James L. Koley, J. Laurent Scharff Alexander Wellford, Donald B. Holbrook, Edward P. Davis, Jr., P. Cameron DeVore, Gregg D. Thomas, Jack M. Weiss, Rutledge C. Clement, Jr., and George K. Rahdert.

        Daniel J. Popeo filed a brief for the American Legal Foundation as amicus curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

This case requires us once more to “struggle]... to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 325 (1974). In Gertz, the Court held that a private figure who brings a suit for defamation cannot recover without some showing that the media defendant was at fault in publishing the statements at issue. Id., at 347. Here, we hold that, at least where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.

I

Maurice S. Hepps is the principal stockholder of General Programming, Inc. (GPI), a corporation that franchises a chain of stores&emdash;known at the relevant time as “Thrifty” stores&emdash;selling beer, soft drinks, and snacks. Mr. Hepps, GPI, and a number of its franchisees are the appellees here. Appellant Philadelphia Newspapers, Inc., owns the Philadelphia Inquirer (Inquirer). The Inquirer published a series of articles, authored by appellants William Ecenbarger and William Lambert, containing the statements at issue here. The general theme of the five articles, which appeared in the Inquirer between May 1975 and May 1976, was that appellees had links to organized crime and used some of those links to influence the State’s governmental processes, both legislative and administrative. The articles discussed a state legislator, described as “a Pittsburgh Democrat and convicted felon,” App. A60, whose actions displayed “a clear pattern of interference in state government by [the legislator] on behalf of Hepps and Thrifty,” id., at A62-A63. The stories reported that federal “investigators have found connections between Thrifty and underworld figures,” id., at A65; that “the Thrifty Beverage beer chain . . . had connections . . . with organized crime,” id., at A80; and that Thrifty had “won a series of competitive advantages through rulings by the State Liquor Control Board,” id., at A65. A grand jury was said to be investigating the “alleged relationship between the Thrifty chain and known Mafia figures,” and “[w]hether the chain received special treatment from the [state Governor’s] administration and the Liquor Control Board.” Id., at A68.

Appellees brought suit for defamation against appellants in a Pennsylvania state court. Consistent with Gertz, supra, Pennsylvania requires a private figure who brings a suit for defamation to bear the burden of proving negligence or malice by the defendant in publishing the statements at issue. 42 Pa. Cons. Stat. § 8344 (1982). As to falsity, Pennsylvania follows the common law’s presumption that an individual’s reputation is a good one. Statements defaming that person are therefore presumptively false, although a publisher who bears the burden of proving the truth of the statements has an absolute defense. See 506 Pa. 304, 313-314, 485 A. 2d 374, 379 (1984). See also 42 Pa. Cons. Stat. § 8343(b)(1) (1982) (defendant has the burden of proving the truth of a defamatory statement). Cf. Gertz, supra, at 349 (common law presumes injury to reputation from publication of defamatory statements). See generally Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va. L. Rev. 1349, 1352-1357 (1975) (describing common-law scheme of defamation law).

The parties first raised the issue of burden of proof as to falsity before trial, but the trial court reserved its ruling on the matter. Appellee Hepps testified at length that the statements at issue were false, Tr. 2221-2290, and he extensively cross-examined the author of the stories as to the veracity of the statements at issue. After all the evidence had been presented by both sides, the trial court concluded that Pennsylvania’s statute giving the defendant the burden of proving the truth of the statements violated the Federal Constitution. Id., at 3589. The trial court therefore instructed the jury that the plaintiffs bore the burden of proving falsity. Id., at 3848.

During the trial, appellants took advantage of Pennsylvania’s “shield law” on a number of occasions. That law allows employees of the media to refuse to divulge their sources. See 42 Pa. Cons. Stat. § 5942(a) (1982) (“No person . . . employed by any newspaper of general circulation ... or any radio or television station, or any magazine of general circulation, . . . shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit”). See also 506 Pa., at 327, 485 A. 2d, at 387 (“This statute has been interpreted broadly”). Appellees requested an instruction stating that the jury could draw a negative inference from appellants’ assertions of the shield law; appellants requested an instruction that the jury could not draw any inferences from those exercises of the shield law’s privilege. The trial judge declined to give either instruction. Tr. 3806-3808. The jury ruled for appellants and therefore awarded no damages to appellees.

Pursuant to Pennsylvania statute, 42 Pa. Cons. Stat. § 722(7) (1982), the appellees here brought an appeal directly to the Pennsylvania Supreme Court. That court viewed Gertz as simply requiring the plaintiff to show fault in actions for defamation. It concluded that a showing of fault did not require a showing of falsity, held that to place the burden of showing truth on the defendant did not unconstitutionally inhibit free debate, and remanded the case for a new trial. 506 Pa., at 318-329, 485 A. 2d, at 382-387. We noted probable jurisdiction, 472 U. S. 1025 (1985), and now reverse.

1 — 1 I — I

In New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court “determined] for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.” Id., at 256. The State’s trial court in that case believed the statements tended to injure the plaintiff’s reputation or bring him into public contempt, id., at 267, and were therefore libelous per se, id., at 262. The trial court therefore instructed the jury that it could presume falsity, malice, and some damage to reputation, as long as it found that the defendant had published the statements and that the statements concerned the plaintiff. Ibid. The trial court also instructed the jury that an award of punitive damages required “malice” or “actual malice.” Id., at 262, 267. The jury found for the plaintiff and made an award of damages that did not distinguish between compensatory and punitive damages. Id., at 262. The Alabama Supreme Court upheld the judgment of the trial court in all respects. Id., at 263.

This Court reversed, holding that “libel can claim no talis-manic immunity from constitutional limitations.” Id., at 269. Against the “background of a 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,” the Court noted that “[ajuthoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth— whether administered by judges, juries, or administrative officials — and especially one that puts the burden of proving truth on the speaker.” Id., at 270-271. Freedoms of expression require “‘breathing space,’” id., at 272 (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)):

“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.’ . . . 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.

The Court therefore held that the Constitution

“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.

That showing must be made with “convincing clarity,” id., at 285-286, or, in a later formulation, by “clear and convincing proof,” Gertz, 418 U. S., at 342. The standards of New York Times apply not only when a public official sues a newspaper, but also when a “public figure” sues a magazine or news service. See Curtis Publishing Co. v. Butts, 388 U. S. 130,162-165 (1967) (Warren, C. J., concurring in result); id., at 170 (opinion of Black, J.); id., at 172 (opinion of Brennan, J.). See also Wolston v. Reader’s Digest Assn., Inc., 443 U. S. 157, 163-169 (1979).

A decade after New York Times, the Court examined the constitutional limits on defamation suits by private-figure plaintiffs against media defendants. Gertz, supra. The Court concluded that the danger of self-censorship was a valid, but not the exclusive, concern in suits for defamation: “The need to avoid self-censorship by the news media is ... , not the only societal value at issue . . . [or] this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation.” Gertz, supra, at 341. See also Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring). Any analysis must also take into account the “legitimate state interest underlying the law of libel [in] the compensation of individuals for the harm inflicted on them by defamatory falsehood.” Gertz, supra, at 341. See also Time, Inc. v. Firestone, 424 U. S. 448, 456 (1976) (discussing the “appropriate accommodation between the public’s interest in an uninhibited press and its equally compelling need for judicial redress of libelous utterances”). In light of that interest, and in light of the fact that private figures have lesser access to media channels useful for counteracting false statements and have not voluntarily placed themselves in the public eye, Gertz, supra, at 344-345, the Court held that the Constitution “allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times,” 418 U. S., at 348: “[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id., at 347. Nonetheless, even when private figures are involved, the constitutional requirement of fault supersedes the common law’s presumptions as to fault and damages. In addition, the Court in Gertz expressly held that, although a showing of simple fault sufficed to allow recovery for actual damages, even a private-figure plaintiff was required to show actual malice in order to recover presumed or punitive damages. Id., at 348-350.

The Court most recently considered the constitutional limits on suits for defamation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749 (1985). In sharp contrast to New York Times, Dun & Bradstreet involved not only a private-figure plaintiff, but also speech of purely private concern. 472 U. S., at 751-752. A plurality of the Court in Dun & Bradstreet was convinced that, in a case with such a configuration of speech and plaintiff, the showing of actual malice needed to recover punitive damages under either New York Times or Gertz was unnecessary:

“In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest [in preserving private reputation] adequately supports awards of presumed and punitive damages — even absent a showing of ‘actual malice.”’ 472 U. S., at 761 (opinion of Powell, J.) (footnote omitted).

See also id., at 764 (Burger, C. J., concurring in judgment); id., at 774 (White, J., concurring in judgment).

One can discern in these decisions two forces that may reshape the common-law landscape to conform to the First Amendment. The first is whether the plaintiff is a public official or figure, or is instead a private figure. The second is whether the speech at issue is of public concern. When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in Gertz, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern. When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape.

Our opinions to date have chiefly treated the necessary showings of fault rather than of falsity. Nonetheless, as one might expect given the language of the Court in New York Times, see supra, at 772-773, a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation. See Garrison v. Louisiana, 379 U. S. 64, 74 (1964) (reading New York Times for the proposition that “a public official [is] allowed the civil [defamation] remedy only if he establishes that the utterance was false”). See also Herbert v. Lando, 441 U. S. 153, 176 (1979) (“[T]he plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability”).

Here, as in Gertz, the plaintiff is a private figure and the newspaper articles are of public concern. In Gertz, as in New York Times, the common-law rule was superseded by a constitutional rule. We believe that the common law’s rule on falsity — that the defendant must bear the burden of proving truth — must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.

There will always be instances when the factfinding process will be unable to resolve conclusively whether the speech is true or false; it is in those cases that the burden of proof is dispositive. Under a rule forcing the plaintiff to bear the burden of showing falsity, there will be some cases in which plaintiffs cannot meet their burden despite the fact that the speech is in fact false. The plaintiff’s suit will fail despite the fact that, in some abstract sense, the suit is meritorious. Similarly, under an alternative rule placing the burden of showing truth on defendants, there would be some cases in which defendants could not bear their burden despite the fact that the speech is in fact true. Those suits would succeed despite the fact that, in some abstract sense, those suits are unmeritorious. Under either rule, then, the outcome of the suit will sometimes be at variance with the outcome that we would desire if all speech were either demonstrably true or demonstrably false.

This dilemma stems from the fact that the allocation of the burden of proof will determine liability for some speech that is true and some that is false, but all of such speech is unknowably true or false. Because the burden of proof is the deciding factor only when the evidence is ambiguous, we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false. In a case presenting a configuration of speech and plaintiff like the one we face here, and where the scales are in such an uncertain balance, we believe that the Constitution requires us to tip them in favor of protecting true speech. To ensure that true speech on matters of public concern is not deterred, we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.

In the context of governmental restriction of speech, it has long been established that the government cannot limit speech protected by the First Amendment without bearing the burden of showing that its restriction is justified. See Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 540 (1980) (content-based restriction); First National Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978) (speaker-based restriction); Renton v. Playtime Theatres, Inc., ante, at 47-54 (secondary-effects restriction). See also Speiser v. Randall, 357 U. S. 513 (1958) (striking down the precondition that a taxpayer sign a loyalty oath before receiving certain tax benefits). It is not immediately apparent from the text of the First Amendment, which by its terms applies only to governmental action, that a similar result should obtain here: a suit by a private party is obviously quite different from the government’s direct enforcement of its own laws. Nonetheless, the need to encourage debate on public issues that concerned the Court in the governmental-restriction cases is of concern in a similar manner in this case involving a private suit for damages: placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result. See New York Times, 376 U. S., at 279; Garrison, supra, at 74 (“Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned”). Because such a “chilling” effect would be antithetical to the First Amendment’s protection of true speech on matters of public concern, we believe that a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant. To do otherwise could “only result in a deterrence of speech which the Constitution makes free.” Speiser, supra, at 526.

We recognize that requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so. Nonetheless, the Court’s previous decisions on the restrictions that the First Amendment places upon the common law of defamation firmly support our conclusion here with respect to the allocation of the burden of proof. In attempting to resolve related issues in the defamation context, the Court has affirmed that “[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters.” Gertz, 418 U. S., at 341. Here the speech concerns the legitimacy of the political process, and therefore clearly “matters.” See Dun & Bradstreet, 472 U. S., at 758-759 (speech of public concern is at the core of the First Amendment’s protections). To provide “‘breathing space,’ ” New York Times, supra, at 272 (quoting NAACP v. Button, 371 U. S., at 433), for true speech on matters of public concern, the Court has been willing to insulate even demonstrably false speech from liability, and has imposed additional requirements of fault upon the plaintiff in a suit for defamation. See, e. g., Garrison, 379 U. S., at 75; Gertz, supra, at 347. We therefore do not break new ground here in insulating speech that is not even demonstrably false.

We note that our decision adds only marginally to the burdens that the plaintiff must already bear as a result of our earlier decisions in the law of defamation. The plaintiff must show fault. A jury is obviously more likely to accept a plaintiff’s contention that the defendant was at fault in publishing the statements at issue if convinced that the relevant statements were false. As a practical matter, then, evidence offered by plaintiffs on the publisher’s fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted. See Keeton, Defamation and Freedom of the Press, 54 Texas L. Rev. 1221, 1236 (1976). See also Franklin & Bussel, The Plaintiff’s Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary L. Rev. 825, 856-857 (1984).

We recognize that the plaintiff’s burden in this case is weightier because of Pennsylvania’s “shield” law, which allows employees of the media to refuse to divulge their sources. See supra, at 770-771. But we do not have before us the question of the permissible reach of such laws. Indeed, we do not even know the precise reach of Pennsylvania’s statute. The trial judge refused to give any instructions to the jury as to whether it could, or should, draw an inference adverse to the defendant from the defendant’s decision to use the shield law rather than to present affirmative evidence of the truthfulness of some of the sources. See supra, at 771. That decision of the trial judge was not addressed by Pennsylvania’s highest court, nor was it appealed to this Court. In the situation before us, we are unconvinced that the State’s shield law requires a different constitutional standard than would prevail in the absence of such a law.

For the reasons stated above, the judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Brennan,

with whom Justice Blackmun joins, concurring.

I believe that where allegedly defamatory speech is of public concern, the First Amendment requires that the plaintiff, whether public official, public figure, or private individual, prove the statements at issue to be false, and thus join the Court’s opinion. Cf. Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). I write separately only to note that, while the Court reserves the question whether the rule it announces applies to nonmedia defendants, ante, at 779, n. 4, I adhere to my view that such a distinction is “irreconcilable with the fundamental First Amendment principle that ‘[t]he inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual.’” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 781 (1985) (Brennan, J., dissenting) (quoting First National Bank of Boston v. Bellotti, 435 U. S. 765, 777 (1978)).

Justice Stevens,

with whom The Chief Justice, Justice White, and Justice Rehnquist join, dissenting.

The issue the Court resolves today will make a difference in only one category of cases — those in which a private individual can prove that he was libeled by a defendant who was at least negligent. For unless such a plaintiff can overcome the burden imposed by Gertz v. Robert Welch, Inc., 418 U. S. 323, 347 (1974), he cannot recover regardless of how the burden of proof on the issue of truth or falsity is allocated. By definition, therefore, the only litigants — and the only publishers — who will benefit from today’s decision are those who act negligently or maliciously.

The Court, after acknowledging the need to “‘accommo-dat[e] . . . the law of defamation and the freedoms of speech and press protected by the First Amendment,’” ante, at 768 (quoting Gertz v. Robert Welch, Inc., 418 U. S., at 325), decides to override “the common-law presumption” retained by several States that “defamatory speech is false” because of the need “[t]o ensure that true speech on matters of public concern is not deterred.” Ante, at 776-777. I do not agree that our precedents require a private individual to bear the risk that a defamatory statement — uttered either with a mind toward assassinating his good name or -with careless indifference to that possibility — cannot be proven false. By attaching no weight to the State’s interest in protecting the private individual’s good name, the Court has reached a pernicious result.

The state interest in preventing and redressing injuries to reputation is obviously important. As Justice Stewart eloquently reminded us in his concurrence in Rosenblatt v. Baer, 383 U. S. 75, 92-94 (1966):

“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.
“. . . The First and Fourteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars. The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.
“Moreover, the preventive effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950’s taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whole society.”

While deliberate or inadvertent libels vilify private personages, they contribute little to the marketplace of ideas. In assaying the First Amendment side of the balance, it helps to remember that the perpetrator of the libel suffers from its failure to demonstrate the truth of its accusation only if the “private-figure” plaintiff first establishes that the publisher is at “fault,” 418 U. S., at 347 — i. e., either that it published its libel with “actual malice” in the New York Times sense (“with knowledge that it was false or with reckless disregard of whether it was false or not,” New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964)), or that it published with that degree of careless indifference characteristic of negligence. Far from being totally in the dark about “how much of the speech affected by the allocation of the burden of proof is true and how much is false,” ante, at 776, the antecedent fault determination makes irresistible the inference that a significant portion of this speech is beyond the constitutional pale. This observation is almost tautologically true with regard to libels published with “actual malice.” For that standard to be met, the publisher must come close to willfully blinding itself to the falsity of its utterance. The observation is also valid, albeit to a lesser extent, with respect to defamations uttered with “fault.” Thus, while the public’s interest in an uninhibited press is at its nadir when the publisher is at fault or worse, society’s “equally compelling” need for judicial redress of libelous utterances is at its zenith. Time, Inc. v. Firestone, 424 U. S. 448, 456 (1976).

To appreciate the thrust of the Court’s holding, we must assume that a private-figure libel plaintiff can prove that a story about him was published with “actual malice” — that is, without the publisher caring in the slightest whether it was false or not. Indeed, in order to comprehend the full ramifications of today’s decision, we should assume that the publisher knew that it would be impossible for a court to verify or discredit the story and that it was published for no other purpose than to destroy the reputation of the plaintiff. Even if the plaintiff has overwhelming proof of malice — in both the common-law sense and as the term was used in New York Times Co. v. Sullivan — the Court today seems to believe that the character assassin has a constitutional license to defame.

In my opinion deliberate, malicious character assassination is not protected by the First Amendment to the United States Constitution. That Amendment does require the target of a defamatory statement to prove that his assailant was at fault, and I agree that it provides a constitutional shield for truthful statements. I simply do not understand, however, why a character assassin should be given an absolute license to defame by means of statements that can be neither verified nor disproved. The danger of deliberate defamation by reference to unprovable facts is not a merely speculative or hypothetical concern. Lack of knowledge about third parties, the loss of critical records, an uncertain recollection about events that occurred long ago, perhaps during a period of special stress, the absence of eyewitnesses — a host of factors — may make it impossible for an honorable person to disprove malicious gossip about his past conduct, his relatives, his friends, or his business associates.

The danger of which I speak can be illustrated within the confines of this very case. Appellants published a series of five articles proclaiming that “Federal authorities . . . have found connections between Thrifty and underworld figures,” App. A65; that “Federal agents have evidence of direct financial involvement in Thrifty by [Joseph] Scalleat,” a “leader of organized crime in northeastern Pennsylvania,” id., at A72; and that “the Thrifty Beverage beer chain . . . had connections itself with organized crime,” id., at A80. The defamatory character of these statements is undisputed. Yet the factual basis for the one specific allegation contained in them is based on an admitted relationship between appellees and a third party. The truth or falsity of that statement depends on the character and conduct of that third party — a matter which the jury may well have resolved against the plaintiffs on the ground that they could not disprove the allegation on which they bore the burden of proof.

Despite the obvious blueprint for character assassination provided by the decision today, the Court’s analytical approach — by attaching little or no weight to the strong state interest in redressing injury to private reputation — provides a wholly unwarranted protection for malicious gossip. As I understand the Court’s opinion, its counterintuitive result is derived from a straightforward syllogism. The major premise seems to be that “the First Amendment’s protection of true speech on matters of public concern,” ante, at 777, is tantamount to a command that no rule of law can stand if it will exclude any true speech from the public domain. The minor premise is that although “we cannot know how much of the speech affected by the allocation of the burden of proof is true and how much is false,” ante, at 776, at least some unverifiable gossip is true. From these premises it necessarily follows that a rule burdening the dissemination of such speech would contravene the First Amendment. Accordingly, “a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant.” Ante, at 777.

The Court’s result is plausible however, only because it grossly undervalues the strong state interest in redressing injuries to private reputations. The error lies in its initial premise, with its mistaken belief that doubt regarding the veracity of a defamatory statement must invariably be resolved in favor of constitutional protection of the statement and against vindication of the reputation of the private individual. To support its premise, the Court relies exclusively on our precedents requiring the government to bear the burden of proving that a restriction of speech is justified. See ante, at 777-778. Whether such restrictions appear in the form of legislation burdening the speech of particular speakers or of particular points of view, or of common-law actions punishing seditious libel, the Court is doubtlessly correct that the government or its agents must at a minimum shoulder the burden of proving that the speech is false and must do so with sufficient reliability that we can be confident that true speech is not suppressed. It was to achieve this reliability that the Court, in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), incorporated into the First Amendment the then-emergent common-law “privilege for [good-faith] criticism of official conduct.” Id., at 282. See id., at 282, n. 21. Because “erroneous statement is inevitable in free debate, and [because] it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive, N.A.A.C.P. v. Button, 371 U. S. 415, 433 [1963],” id., at 271-272, this privilege is defeasible only if the defamatory 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. “Allowance of the defense of truth, with the burden of proving it on the defendant,” was found wanting because it did not “mean that only false speech [would] be deterred” — doubts regarding whether truth “can be proved in court or fear of the expense of having to do so” would force good-faith critics of official conduct to “ ‘steer far wider of the unlawful zone,’ ” id., at 279 (quoting Speiser v. Randall, 357 U. S. 513, 526 (1958)).

Even assuming that attacks on the reputation of a public figure should be presumed to be true, however, a different calculus is appropriate when a defamatory statement disparages the reputation of a private individual. In that case, the overriding concern for reliable protection of truthful statements must make room for “[t]he legitimate state interest underlying the law of libel” — “the compensation of individuals for the harm inflicted on them by defamatory falsehood.” Gertz v. Robert Welch, Inc., 418 U. S., at 341. A public official, of course, has no “less interest in protecting his reputation than an individual in private life.” Rosenbloom v. Metromedia, 403 U. S. 29, 46 (1971) (opinion of Brennan, J.). But private persons are “more vulnerable to injury” and “more deserving of recovery” — more vulnerable because they lack “access to the channels of effective communication ... to counteract false statements”; more deserving because they have “relinquished no part of [their] good name[s]” by “thrust[ing] themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U. S., at 344-345.

Recognition of the “strong and legitimate [state] interest in compensating private individuals for injury to reputation,” id., at 348-349, exposes the untenability of the Court’s methodology: the burden of proof in “private-figure” libel suits simply cannot be determined by reference to our precedents having the reputations of “public figures” in mind. In libel cases brought by the latter category of plaintiffs,

“we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement . . . but the possibility of such error . . . would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate.” Rosenbloom v. Metromedia, 403 U. S., at 50 (opinion of Brennan, J.).

In libel suits brought by private individuals, in contrast, “the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain.” Gertz v. Robert Welch, Inc., 418 U. S., at 343. To be sure, both categories of cases involve “speech that matters.” Id., at 341. But “[t]he extension of the New York Times test” to every item of public interest “would abridge this legitimate state interest to a degree that we find unacceptable. ” Id., at 346. Accordingly, in Gertz v. Robert Welch, Inc., this Court rejected the Rosenbloom plurality’s assumption that the risk of error must invariably be borne by the libel plaintiff, regardless of his or her status, as long as the defamatory statement touches “matters of public or general concern.” Rosenbloom v. Metromedia, 403 U. S., at 44. Gertz thus forecloses the Court’s unacknowledged reliance on the discredited analysis of the Rosenbloom plurality; where private-figure libel plaintiffs are involved, the First Amendment does not “requir[e] us to tip [the scales] in favor of protecting true speech” merely because that speech addresses “matters of public concern.” Ante, at 776. See 418 U. S., at 345-346. See also Time, Inc. v. Firestone, 424 U. S., at 454-456 (refusing to “reinstate the doctrine advanced in the plurality opinion in Rosenbloom” in the guise of protection for inaccurate reporting on “public controversies” or on judicial proceedings).

In my view, as long as publishers are protected by the requirement that the plaintiff has the burden of proving fault, there can be little, if any, basis for a concern that a significant amount of true speech will be deterred unless the private person victimized by a malicious libel can also carry the burden of proving falsity. The Court’s decision trades on the good names of private individuals with little First Amendment coin to show for it.

I respectfully dissent.

       Appellants list nine entities as appellees in the proceedings in this Court: Maurice S. Hepps; General Programming, Inc.; A. David Fried, Inc.; Brookhaven Beverage Distributors, Inc.; Busy Bee Beverage Co.; ALMIK, Inc.; Lackawanna Beverage Distributors; N. F. 0., Inc.; and Elemar, Inc. Brief for Appellants ii.

       The state courts that have considered this issue since Gertz have reached differing conclusions. Compare, e. g., Denny v. Mertz, 106 Wis. 2d 636, 654-658,318 N. W. 2d 141,150-151 (defendant must bear burden of showing truth), cert. denied, 459 U. S. 883 (1982), and Memphis Publishing Co. v. Nichols, 569 S. W. 2d 412 (Tenn. 1978) (same), with Gazette, Inc. v. Harris, 229 Va. 1, 15-16, 325 S. E. 2d 713, 725 (plaintiff must bear burden of showing falsity), cert. denied, 473 U. S. 905 (1985), and Madison v. Yunker, 180 Mont. 54, 67, 589 P. 2d 126, 133 (1978) (same).

       Pennsylvania is not alone in this choice. See, e. g., Ala. Code §12-21-142 (1977); Cal. Const., Art. I, § 2(b); N. Y. Civ. Rights Law § 79-h (McKinney 1976).

       We also have no occasion to consider the quantity of proof of falsity that a private-figure plaintiff must present to recover damages. Nor need we consider what standards would apply if the plaintiff sues a nonmedia defendant, see Hutchinson v. Proxmire, 443 U. S. 111, 133, n. 16 (1979), or if a State were to provide a plaintiff with the opportunity to obtain a judgment that declared the speech at issue to be false but did not give rise to liability for damages.

       See, e. g., Elliott v. Roach, 409 N. E. 2d 661, 681 (Ind. App. 1980); Trahan v. Ritterman, 368 So. 2d 181, 184 (La.App. 1979); Parsons v. Gulf

        & South American S.S. Co., 194 So. 2d 456, 460 (La. App.), cert. denied, 389 U. S. 896 (1967); Madison v. Yunker, 180 Mont. 54, 61, 589 P. 2d 126, 129-130 (1978); Rogozinski v. Airstream by Angell, 152 N. J. Super. 133, 146-147, 377 A. 2d 807, 814 (1977), modified, 164 N. J. Super. 465, 397 A. 2d 334 (1979); Martin v. Griffin Television, Inc., 549 P. 2d 85, 87, 94 (Okla.1976); Corabi v. Curtis Publishing Co., 441 Pa. 432, 447-451, 468, 273 A. 2d 899, 907-909, 917 (1971); Memphis Publishing Co. v. Nichols, 569 S. W. 2d 412, 420 (Tenn. 1978); Frank B. Hall & Co., Inc. v. Buck, 678 S. W. 2d 612, 623-625 (Tex. App. 1984), cert. denied, 472 U. S. 1009 (1985); Denny v. Mertz, 106 Wis. 2d 636, 654-655, 318 N. W. 2d 141, 150, cert. denied, 459 U. S. 883 (1982).

       “There is no doubt about the historical fact that the interest in one’s good name was considered an important interest requiring legal protection more than a thousand years ago; and that so far as Anglo-Saxon history is concerned this interest became a legally protected interest comparatively soon after the interest in bodily integrity was given legal protection.” L. Eldridge, The Law of Defamation § 53, pp. 293-294 (1978).
      See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 757-758 (1985) (opinion of Powell, J.); id., at 767-769 (White, J., concurring in judgment); id., at 793, n. 16 (Brennan, J., dissenting) (“[T]he individual’s interest in reputation is certainly at the core of notions of human dignity”); Gertz v. Robert Welch, Inc., 418 U. S. 323, 341 (1974).

       “But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. New York Times Co. v. Sullivan, 376 U. S. [254,] 270 [(1964)]. They belong to that category 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 (1942).” Gertz v. Robert Welch, Inc., 418 U. S., at 340.
      But cf. New York Times Co. v. Sullivan, 376 U. S., at 279, n. 19.

       “Our eases, however, 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. State of 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. Mr. Justice Harlan’s opinion in Curtis Publishing Co. v. Butts, 388 U. S. 130, 153 (1967), stated that evidence of either deliberate falsification or reckless publication ‘despite the publisher’s awareness of probable falsity’ was essential to recovery by public officials in defamation actions. These eases 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 demonstates actual malice.” St. Amant v. Thompson, 390 U. S. 727, 731 (1968).
      See Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring) (“What the New York Times rule ultimately protects is defamatory falsehood”).

       It is presumably for this reason that the Court believes that its “decision adds only marginally to the burdens that the plaintiff must already bear as a result of our earlier decisions in the law of defamation.” Ante, at 778. See ibid. (“As a practical matter, then, evidence offered by plaintiffs on the publisher’s fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted” (citations omitted)).
      Although I am inclined to agree with the preceding observation, I do not agree that it supports the result reached by the Court today. That allocation of the burden of proof is inconsequential in many cases provides no answer to eases in which it is determinative. See infra, at 785-787. Moreover, the Court’s belief, however sincere, that its decision will not significantly impair the state interest in redressing injury to reputation is not itself sufficient to justify overriding state law. See Gertz v. Robert Welch, Inc., 418 U. S., at 349.
      I note that the Court makes no claim that its decision to impose on private-figure libel plaintiffs the burden of proving falsity is necessary to prevent jury confusion. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 116, pp. 839-840 (5th ed. 1984) (“[Tjhere is no inconsistency in assuming falsity until defendant publisher proves otherwise and requiring the plaintiff to prove negligence or recklessness with respect to the truth or falsity of the imputation”). See also 506 Pa. 304, 325, n. 13, 485 A. 2d 374, 385, n. 13 (1984) (“In a rather circuitous argument, [appellants] contend that falsity is inextricably bound up with proof of fault. [Appellants] assert that to prove fault the plaintiff in fact must demonstrate the falsity of the matter. While in some instances the plaintiff may elect to establish the patent error in the material to demonstrate the lack of due care in ascertaining its truth, it does not necessarily follow that negligence of the defendant can only be shown by proving that the material is false. A plaintiff can demonstrate negligence in the manner in which the material was gathered, regardless of its truth or falsity. In such instance the presumption of falsity will prevail unless the defendant elects to establish the truth of the material and thereby insulate itself from liability. Where it is necessary to prove falsity to establish the negligence of the defendant, it is then the burden of the plaintiff to do so. . . . That proposition will not, of course, hold true in all cases. Where negligence can be established without a demonstration of the falsity of the material, there is no additional obligation upon the plaintiff to prove the falsity of the material”).

       This license would gain immeasurable strength if courts take up the suggestion of commentators in the Court’s camp that the nonfalsifiable nature of a libel should entitle the defendant to summary judgment. See Franklin & Bussel, The Plaintiff’s Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary L. Rev. 825, 865 (1984) (“If the plaintiff’s suit is based upon a statement that is not susceptible to being proved false, for example, the court should deny any discovery and dismiss the complaint”).

       The parties agree that “the thrust of the challenged publications was that the Thrifty chain was connected with underworld figures and organized crime. It was that proposition that was required to be proven false.” Brief for Appellants 36.

       At trial, the individual plaintiff simply denied knowledge of Joseph Scalleat’s employment with Beer Sales Consultants and of BSC’s employment by three Thrifty stores. See Testimony of Maurice Hepps, Tr. 2185-2186, 2200.

       The New York Times Co. v. Sullivan privilege was subsequently extended to “public figures.” See Curtis Publishing Co. v. Butts, 388 U. S. 130, 164 (1967) (Warren, C. J., concurring in result).

       If the issue were properly before us, I would be inclined to the view that public figures should not bear the burden of disproving the veracity of accusations made against them with “actual malice,” as the New York Times Court used that term. The contrary remarks in cases such as Garrison v. Louisiana, 379 U. S. 64, 74 (1964), were not necessary to the decisions in those cases, and they do not persuade me that the constitutional value in truthful statements requires any more protection of defamatory utterances whose truth may not be ascertained than is provided by the New York Times test.

       See 418 U. S., at 342 (“Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test”).


author: Per Curiam. Chief Justice Burger,

text:
    UNITED STATES v. QUINN
    No. 84-1717.
    Argued March 5, 1986
    Decided April 21, 1986

      Mark I. Levy argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joel M. Gershowitz.

      Eugene G. Iredale argued the cause for respondent. With him on the brief was Patrick Q. Hall.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Chief Justice Burger,

with whom Justice Blackmun joins,

dissenting.

We granted certiorari to decide the following question:

“Whether a defendant has a Fourth Amendment expectation of privacy that entitles him to challenge the search of a boat, which he had never personally used prior to the search and which had been out of his custody and control for two months at the time of the search, on the grounds that he was the owner of the boat and was a co-venturer in a criminal enterprise involving the use of the boat by others to smuggle marijuana in which he had a possessory interest.”

The question presented is one of considerable significance. It frequently arises in criminal prosecutions because drug smugglers often purchase vessels or airplanes for others to use in criminal enterprises. Given the massive infusion of dangerous drugs into this country by water and air we have an obligation to decide the issue presented. The drug problem presents as great a danger to the United States as any foreign power or fiscal problem.

hH

Here are the uncontested facts: Having solicited one Hunt to assist in a drug-smuggling scheme, respondent Quinn purchased a 54-foot vessel — the Sea Otter — and gave possession to Hunt. Hunt took the Sea Otter to Colombia and picked up roughly 12,000 pounds of marijuana, which he then delivered to Quinn’s ranch in California. On June 27, 1979, California Fish and Game officials, suspecting that the Sea Otter had been engaged in unlawful fishing operations, boarded the vessel where they observed marijuana “debris” in plain view. They left and notified the United States Coast Guard and the Customs Service of their suspicions that the Sea Otter had been used in a marijuana-smuggling operation.

Federal officials intercepted the Sea Otter at sea and boarded. The crew could not produce documentation for the boat. Hunt admitted that he had not contacted either the Coast Guard or the Immigration and Naturalization Service, as required by law, when the vessel arrived at the California coast. The officials took the vessel to a nearby Coast Guard station. The forward holds were pumped out and material later identified as marijuana was discovered.

Quinn was arrested and charged with importation and possession of marijuana. He moved to suppress all evidence seized and obtained as result of the stop and search of the Sea Otter, arguing that his Fourth Amendment rights as the owner of the Sea Otter had been violated. The District Court found that because Quinn had turned the boat over to others he had no standing to contest the search. Quinn then entered a conditional guilty plea, preserving his right to appeal the District Court’s decision that he lacked standing to contest the search.

A divided panel of the Court of Appeals for the Ninth Circuit reversed and remanded. 751 F. 2d 980 (1984). The majority found that Quinn had an expectation of privacy based on the “conjunction” of several factors: Quinn’s ownership of the vessel; “[h]is possessory interest in the marijuana seized, arising from his joint venture with Hunt”; “[t]he fact that the boat, when searched, was returning from a delivery of marijuana to [Quinn] and was, thus, pursuing the purpose of [Quinn’s] joint venture”; and the fact that “reasonable precautions had been taken to preserve privacy.” Id., at 981.

H — I

On this record we should reverse the Court of Appeals. It is axiomatic that the Fourth Amendment guarantee against unreasonable searches and seizures protects personal privacy interests, not property rights. Thus, the “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U. S. 128, 143 (1978).

Here the record is clear that Quinn, notwithstanding his naked title interest in the Sea Otter, had never made personal use of the vessel that would give rise to a legitimate expectation of privacy. At the time of the search he had never kept private quarters on the boat or used it as a repository of personal effects. Quinn purchased the vessel for the specific purpose of having others operate it to smuggle drugs into the United States. Moreover, Quinn did not exert any control over the boat: his partner Hunt had complete control over the vessel at all times preceding the search and for two years thereafter while he used it for commercial fishing in Costa Rica. These facts afford no basis for any claim to an expectation of privacy in the Sea Otter.

The Court of Appeals’ contrary conclusion rests on a fundamental misconception of the scope of the Fourth Amendment. Under the reasoning of the Court of Appeals, an owner’s Fourth Amendment rights would extend not to just a single boat but to a fleet of vessels, airplanes, or trucks merely because he has held legal title to and sent these conveyances into an illegal drug-smuggling enterprise. But the Fourth Amendment only extends to what people seek to “preserve as private.” Katz v. United States, 389 U. S. 347, 351 (1967). The Court of Appeals reasoned that since the marijuana was found in the hold of the vessel, “reasonable precautions had been taken to preserve privacy.” 751 F. 2d, at 981. Even if this inference is warranted from the facts, it is irrelevant because there is no indication that Quinn took any precautions whatsoever. “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Rakas v. Illinois, supra, at 133-134 (emphasis added). That someone other than the title holder took steps indicating an expectation of privacy has no bearing on whether Quinn’s Fourth Amendment rights were violated.

The Court of Appeals’ conclusion that Quinn’s status as a “co-venturer” with those who exerted control over the vessel and his possessory interest in the contraband gave him standing to challenge the search is similarly misguided. Under this flawed analysis, if a defendant has a sufficient link to seized contraband to incriminate him, the guarantees of the Fourth Amendment attach. But it is the established rule that suppression of evidence “can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing.” Alderman v. United States, 394 U. S. 165, 171-172 (1969) (emphasis added). Unless Quinn can demonstrate a reasonable expectation of privacy in the place searched, neither his involvement in the criminal enterprise, see Alderman, supra, nor his naked possessory interest in the seized evidence, see United States v. Salvucci, 448 U. S. 83 (1980); Rawlings v. Kentucky, 448 U. S. 98 (1980), establishes a Fourth Amendment violation.

The District Court, therefore, correctly held that suppression was not warranted because Quinn had not manifested a reasonable expectation of privacy in the Sea Otter. I regard it as an error of gravest consequences to allow the erroneous holding of the Court of Appeals to stand when the country is being flooded at its borders with dangerous drugs. I would therefore reverse the judgment of the Court of Appeals.


author: Per Curiam. Justice Marshall Justice Stevens,

text:
    CITY OF LOS ANGELES et al. v. HELLER
    No. 85-531.
    Decided April 21, 1986
   Per Curiam.

Respondent Ronald Heller sued petitioners, city of Los Angeles and individual members of the Los Angeles Police Commission, and two Los Angeles police officers in the United States District Court for the Central District of California under the provisions of 42 U. S. C. § 1983. He claimed damages by reason of having been arrested without probable cause and having been the victim of excessive force in the making of the arrest. The incident arose as a result of the two Los Angeles police officers stopping him because of a suspicion that he was driving while intoxicated. In the words of the Court of Appeals for the Ninth Circuit:

“The officers administered a series of field sobriety tests. Apparently dissatisfied with the results, the officers decided to take Heller to the station to undergo a breath test. When notified that he was under arrest, however, Heller became belligerent. One of the defendants, Officer Bushey, attempted to handcuff him. An altercation ensued. In the course of the struggle, Heller fell through a plate glass window.” Heller v. Bushey, 759 F. 2d 1371, 1372-1373 (1985).

The District Court held a bifurcated trial, and first heard respondent’s claims against one of the individual police officers. The jury was instructed that Heller would make out his constitutional claim if he were arrested without reasonable cause, or if he were arrested with “unreasonable force” that exceeded the force necessary under the circumstances to effect arrest. Id., at 1374. The jury was not instructed on any affirmative defenses that might have been asserted by the individual police officer. Tr. in No. 80-2643 (CD Cal.), pp. 808-822, 843. The jury returned a verdict for the defendant police officer and against respondent. The District Court.then dismissed the action against petitioners, concluding that if the police officer had been exonerated by the jury there could be no basis for assertion of liability against the city or the persons constituting its Police Commission.

Respondent appealed to the Court of Appeals for the Ninth Circuit, and that court reversed the judgment of the District Court dismissing respondent’s case against petitioners even though it did not disturb the verdict for the defendant police officer. Respondent urged, and the Court of Appeals apparently agreed, that “the jury could have believed that Bushey, having followed Police Department regulations, was entitled in substance to a defense of good faith. Such a belief would not negate the existence of a constitutional injury” (footnote omitted). 759 F. 2d, at 1373-1374.

The difficulty with this position is that the jury was not charged on any affirmative defense such as good faith which might have been availed of by the individual police officer. Respondent contends in his brief in opposition to certiorari that even though no issue of qualified immunity was presented to the jury, the jury might nonetheless have considered evidence which would have supported a finding of such immunity. But the theory under which jury instructions are given by trial courts and reviewed on appeal is that juries act in accordance with the instructions given them, see Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, 604 (1985), and that they do not consider and base their decisions on legal questions with respect to which they are not charged. We think that the Court of Appeals’ search for ambiguity in the verdict was unavailing; as that court itself noted later in its opinion, “[bjecause the instructions required a verdict for [respondent] if either the due process or the excessive force claim was found, the jury’s verdict for the defendant required a negative finding on both claims.” 759 F. 2d, at 1374, n. 3. This negative, it seems to us, was conclusive not only as to Officer Bushey, but also as to the city and its Police Commission. They were sued only because they were thought legally responsible for Bushey’s actions; if the latter inflicted no constitutional injury on respondent, it is inconceivable that petitioners could be liable to respondent.

The Court of Appeals also stated:

“We must conclude that the general verdict does not foreclose a finding that Heller suffered a constitutional deprivation. Heller’s Monell claim survived the general verdict. . . . The jury verdict, of course, conclusively determined that there was probable cause to arrest Heller. On the other hand, it is equally clear that whether the application of force in accordance with Police Department regulations in this case exceeded constitutional limits has not been determined.” Id., at 1374-1375.

But this was an action for damages, and neither Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.

The petition for certiorari is granted, 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.

Justice Brennan took no part in the consideration or decision of this case.

Justice Marshall

dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Cuyahoga Valley R. Co. v. Transportation Union, 474 U. S. 3, 8 (1985) (Marshall, J., dissenting); Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting).

Justice Stevens,

with whom Justice Marshall joins, dissenting.

Whenever the Court decides a case without the benefit of briefs or argument on the merits, there is a danger that it will issue an opinion without the careful deliberation and explication that the issues require. Today’s “per curiam” opinion is a fair illustration of the problem. The two important issues presented in this case are not even identified in that document. The District Court’s decision to dismiss the action against the city, the Police Department, and the Police Commissioners necessarily rested on two assumptions: (1) there was an inherent inconsistency between the jury verdict in favor of Officer Bushey and a possible verdict against the municipal defendants and (2) that inconsistency required the dismissal of the action against the municipal defendants. Far from specifically addressing those issues, however, the District Court dismissed the action against the city on the ground that it had “become moot.” In a similar vein, this Court rests its summary decision on the maxim that “juries act in accordance with the instructions given them.” Ante, at 798. In my view, neither of the necessary assumptions for the District Court’s action — and for this Court’s re-instatment of its decision — is remotely present in this case.

HH

The first necessary assumption is that there would be an inevitable inconsistency between the jury verdict of no liability for Officer Bushey and a possible verdict of liability against the municipal entities; in the absence of such an inconsistency, the District Court’s decision, and this Court’s reinstatement of it, are simply inexplicable'.

It is undisputed that Ronald Heller crashed through a plate-glass window after some kind of an altercation with Officer Bushey. He had been stopped on suspicion of driving while intoxicated and given sobriety tests. In his claim against the municipal entities, Heller contended that the city and the Police Department had adopted a policy of condoning excessive force in making arrests, that the policy was unlawful, and that he had been injured by the application of that policy at the time of his arrest. In his claim against Officer Bushey, Heller contended that his constitutional rights were violated because Officer Bushey had employed “unreasonable force” in arresting him.

On the day before trial, the District Judge bifurcated the trial into two phases — the first against Officer Bushey and the second against the municipal entities. The record contains no explanation for this decision, but it does reveal that Heller’s counsel opposed bifurcation.

In the proceeding against Officer Bushey, considerable evidence of the Los Angeles Police Department’s policy and custom on the use of force was introduced. An expert witness testified regarding Los Angeles’ officially sanctioned use of “escalating force,” culminating in the use of the notorious “chokehold.” Officer Bushey himself testified that Heller’s flight through the window resulted from his attempt to impose a chokehold, and that he was carefully following official Police Department policy. Officer Bushey’s superior, Sergeant Shrader, also testified that Officer Bushey’s actions were in complete compliance with official Police Department policy. Finally, Officer Bushey’s attorney repeatedly emphasized that his client’s actions were entirely consistent with established Department policy.

In submitting the claim against Officer Bushey to the jury, the trial judge gave an instruction that simply stated that whether or not the force used in making an arrest is unreasonable “is an issue to be determined in the light of all the surrounding circumstances.” After deliberating several hours, the jury returned a general verdict in favor of the officer.

Thus, despite the majority’s summary assertion to the contrary, it is perfectly obvious that the general verdict rejecting the excessive force claim against Officer Bushey did not necessarily determine the constitutionality of the city’s “escalating force” policy — a subject on which the jury had received no instructions at all. The verdict merely determined that the officer’s action was not unreasonable “in the light of all the surrounding circumstances” — which, of course, included the evidence that Officer Bushey was merely obeying orders and following established Police Department policy.

As a result, there was no necessary inconsistency between the verdict for Officer Bushey and a possible verdict of liability against the municipal defendants. On that basis alone, the District Court plainly erred in dismissing as “moot” the suit against the municipal defendants, and the Court of Appeals was plainly correct to reverse the dismissal.

II

In view of the fact that the Court of Appeals correctly concluded that there was no necessary inconsistency between a verdict exonerating Officer Bushey and a verdict holding the city and Police Department liable for the “escalating force” policy, it did not have to consider the appropriate response to a possible inconsistency in the context of a bifurcated trial.

Inconsistent verdicts are, of course, a familiar phenomenon. In a criminal case, a jury’s apparently inconsistent verdict is allowed to stand. In a civil case, the rule is less clear. Nevertheless, in contrast to the Court’s blithe assumption today, it is far from certain that the District Court’s action — the dismissal — was an appropriate response, even if somehow a verdict against the municipal entities might have created an inconsistency. First, the Court ignores the fact that, in certain circumstances, a court retains the authority, even in a civil case, to allow an apparently inconsistent verdict to stand. Second, the Court ignores the fact that, when faced with an apparently inconsistent verdict, a court has a duty to attempt to read the verdict in a manner that will resolve inconsistencies. Third, the Court ignores the fact that, upon receiving an apparently inconsistent verdict, the trial judge has the responsibility, not to retain half of the verdict, but to resubmit the question to the jury. Finally, the Court ignores the fact that, if verdicts are genuinely inconsistent and if the evidence might support either of the “inconsistent” verdicts, the appropriate remedy is ordinarily, not simply to accept one verdict and dismiss the other, but to order an entirely new trial.

Although the Court fails to address it, the question this case raises (if, in fact, the initial view of inevitable inconsistency is accepted) is whether a different set of principles should apply in a bifurcated trial — more narrowly, in a trial that was bifurcated over the objection of the plaintiff. Because the question has not been argued, I do not foreclose the possibility that bifurcation should make a difference, but it is not immediately apparent to me why it should. In this case, the same jury would have passed on the municipal entities’ liability, and would have relied on the evidence adduced in the first phase of the trial as well as that presented in the second phase. At the very least, it is unclear to me why the normal devices for addressing an apparently inconsistent verdict — construing the verdict in a manner that resolves the inconsistency; resubmitting the case to the jury for it to resolve the inconsistency; or even ordering a new trial — should be unavailable in a bifurcated context.

If the Court’s unprecedented, ill-considered, and far-reaching decision happens to be correct, defendants as a class have been presented with a tactical weapon of great value. By persuading trial judges to bifurcate trials in which both the principal and its agents are named as defendants, and to require the jury to bring in its verdict on the individual claim first, they may obtain the benefit of whatever intangible factors have prompted juries to bring in a multitude of inconsistent verdicts in past years; defendants will no longer have to abide the mechanisms that courts have used to mitigate and resolve apparent inconsistencies. Perhaps that is an appropriate response to the current widespread concern about the potential liabilities of our municipalities, but I doubt it. Cf. Oklahoma City v. Tuttle, 471 U. S. 808, 843-844 (1985) (Stevens, J., dissenting).

I — I hH hH

The Court today reverses an interlocutory decision m a constitutional rights case on the basis of assumptions that dramatically conflict with the record and with settled legal principles. The Court mistakenly assumes that there was a necessary inconsistency between the verdict of no liability against the individual officer and a possible verdict against the municipal defendants; it then mistakenly assumes that dismissal was an appropriate response to the perceived inconsistency. Perhaps not coincidentally, the Court achieves these results without the aid of briefs or argument, and relies on an anonymous author to explain what it has done.

I respectfully dissent.

      The second of the two police officers named as defendants was granted summary judgment by the District Court.

       See 8 Record 844 (“With respect to the Monell cause of action, which was bifurcated from the initial trial, the Court is now convinced that has become moot by reason of the verdict in favor of the defendant and the Court is ordering dismissal of that cause of action at this time”); 2 id., Doc. No. 209, dismissal order (“the plaintiff’s theory of liability against the defendants, CITY OF LOS ANGELES, LOS ANGELES BOARD OF POLICE COMMISSIONERS and LOS ANGELES POLICE DEPARTMENT, based on the case of Monell v. Department of Social Services of the City of New York, 436 U. S. 658 ... is moot”).

       After the altercation, Heller was given an alcohol level test, and was found to have one-tenth the level of alcohol in his body necessary for a finding of driving while intoxicated under California law. 5 id,., at 134-136. Heller was never charged with driving while intoxicated. Ibid.

       See 5 id., Doc. No. 203, minutes of chambers conference (Oct. 18, 1982) (“Court confers with Counsel re: Pretrial order, Jury trial on 10/19/82, Jury Instructions, Defendant’s amended witness list and bifurcation of case. Plaintiff counsel opposes Bifurcation. Defendant does not oppose bifurcation”).

       See 5, id., at 157-158 (testimony of James Fyfe) (“The Los Angeles Police Department employs a scale of escalation in the use of force. . . . [T]he Los Angeles Police Department varies from every other major police department I know of. The Los Angeles Police Department says that if that compliance hold fails to work the next degree of force to be used is a chokehold or, as the police department calls them, a carotid control hold and modified carotid hold and bar arm control holds”). Cf. Los Angeles v. Lyons, 461 U. S. 95, 97, n. 1 (1983) (describing chokehold); id., at 114-119 (Marshall, J., dissenting) (reviewing Los Angeles Police Department’s use of chokeholds and noting that 16 deaths had resulted from chokeholds since 1975). At the time of Heller’s trial, Lyons was pending before this Court.

       5 Record 99-100 (“As he began his two steps forward I applied — I put my left arm around his —the portion I tried to get was the front part of his throat. You use the blade of your wrist on the person’s throat. As we are supposed to when we are trying to take someone into custody use verbal commands of first asking verbally and then demanding verbally. If that does not work we use what is called a pain compliance, which is trying to twist someone’s wrist where the pain hurts them and they’ll comply with your request. ... I tried to get the blade of my wrist around to his throat to apply pressure to his throat, which is also a pain compliance hold”).

       See 6 id., at 279-281 (testimony of Sergeant Shrader) (describing Police Department’s “accelerated force theory” and concluding that Officer Bushey’s use of a chokehold would have been “within the policy”).

       See, e. g., 6 id., at 170 (“[T]he carotid hold was a hold that was being taught to the Los Angeles Police Department”); 6 id., at 279 (referring to “the accelerated force theory that the police department has”); id., at 281 (referring to “the policy of what police department officers do”). See also Officer Bushey’s counsel’s closing argument, 7 id., at 699 (“In this ease it’s not the City that’s the defendant. It’s Officer Bushey”); id., at 706 (citing “testimony concerning our own policies and procedures as to the Los Angeles Police Department”); ibid. (“[T]he procedures which Officer Bushey followed are exactly what he’s taught and the reasons he’s taught to do it”); id., at 716 (“It’s Officer Bushey who’s the defendant”); id., at 718 (“Officer Bushey was trying to do his job”).

       “Whether or not the force used in making an arrest, preventing an escape, or overcoming resistance was expressive [sic], unreasonable or violent is an issue to be determined in the light of all the surrounding circumstances.” 8 id., at 815-816.

       The Court of Appeals concluded:
      “The jury, in substance, was instructed that Heller was deprived of liberty without due process if he was arrested without reasonable cause. The jurors were further instructed that Heller’s constitutional rights were violated if he was arrested with “unreasonable force” that exceeded the force necessary under the circumstances to effect arrest. The jury’s verdict for the defendant therefore embodies a finding that Heller was arrested for reasonable cause and that the amount of force used was not unreasonable or excessive. The difficulty is that the conclusion that the force was reasonable could have been derived either from Police Department regulations, which incorporate a theory of‘escalating force,’ or from a constitutional standard entirely independent of such regulations. We cannot say which with assurance.” Heller v. Bushey, 759 F. 2d 1371, 1374 (CA9 1985) (footnote omitted).

       See United States v. Powell, 469 U. S. 57 (1984) (reaffirming general rule that inconsistent verdicts can stand); Harris v. Rivera, 454 U. S. 339, 345 (1981) (“Inconsistency in a verdict is not a sufficient reason for setting it aside”); Hoag v. New Jersey, 356 U. S. 464, 472 (1958) (“[Jjury verdicts are sometimes inconsistent or irrational”); United States v. Dotterweich, 320 U. S. 277, 279 (1943) (“Whether the jury’s verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty instead of merely increasing, as it were, the cost of running the business of the corporation, is immaterial. Juries may indulge in precisely such motives or vagaries”); Dunn v. United States, 284 U. S. 390, 393 (1932) (“Consistency in the verdict is not necessary”). Cf. Ulster County Court v. Allen, 442 U. S. 140, 168 (1979) (BURGER, C. J., concurring) (“Courts have long held that in the practical business of deciding cases the factfinders, not unlike negotiators, are permitted the luxury of verdicts reached by compromise”).

       See, e. g., Bickel, Judge and Jury — Inconsistent Verdicts in the Federal Courts, 63 Harv. L. Rev. 649, 654 (1950) (“[T]here is not in a civil case the equivalent of a precedent such as Dunn [v. United States, supra] to overrule in upsetting inconsistent verdicts. The argument outlined against extending the Dunn rule to civil cases is thus quite a plausible one. But it is not unanswerable”) (footnote omitted).

       Indeed, in explaining why an apparently inconsistent verdict in a civil case should not be disturbed, Justice Brandéis cited the leading case on the permissibility of inconsistent verdicts in a criminal context. See Fairmount Glass Works v. Cub Fork Coal Co., 287 U. S. 474, 485 (1933) (citing Dunn v. United States). See also F. James & G. Hazard, Civil Procedure 384 (3d ed. 1985) (“[T]he refusal of a trial court to set aside a verdict obviously representing a compromise has frequently, and quite properly, been upheld”); id., at 394 (“One of the great values of jury trial... is its ability to reflect the community sense of over-all fairness, and this may not in all eases coincide with the written law and the instructions which the court must give”); Karcesky v. Laria, 382 Pa. 227, 235, 114 A. 2d 150, 154 (1955) (“Where the evidence of negligence, or contributory negligence, or both, is conflicting or not free from doubt, a trial judge has the power to uphold the time-honored right of a jury to render a compromise verdict, and to sustain a verdict which is substantial”); Jayne v. Mason & Dixon Lines, Inc., 124 F. 2d 317, 319 (CA2 1941) (L. Hand) (“We do not mean to imply however that we should have thought it fatal to the wife’s recovery if no rational reconciliation of the verdicts was possible. Dunn v. United States, 284 U. S. 390”). Cf. Note, Inconsistent Verdicts in Civil Trials, 45 Harv. L. Rev. 1230, 1234 (1932) (observing that, in some jurisdictions, “a master can not complain solely because the servant was exonerated at the same trial. If the evidence is sufficient to support the verdict against the master, his appeal will be denied”) (footnote omitted).

       See Gallick v. Baltimore & Ohio R. Co., 372 U. S. 108, 119 (1963) (In considering jury answers to questions in a special verdict, “it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them .... We therefore must attempt to reconcile the jury’s findings, by exegesis if necessary, . . . before we are free to disregard the jury’s special verdict and remand the ease for a new trial”); Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U. S. 355, 364 (1962) (“Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way”); Affolder v. New York, Chi. & St. L. R. Co., 339 U. S. 96 (1950); Fairmount Glass Works, 287 U. S., at 485 (Brandéis, J.) (“Appellate courts should be slow to impute to juries a disregard of their duties, and to trial courts a want of diligence or perspicacity in appraising the jury’s conduct”); Union Pacific R. Co. v. Hadley, 246 U. S. 330, 334 (1918) (Holmes, J.) (“[Sjince the [jury] finding was possible on the evidence it cannot be attributed to disregard of duty.. . . Beyond the question of attributing misconduct to the jury we are not concerned to inquire whether its reasons were right or wrong”).

       See, e. g., Dickerson v. Pritchard, 706 F. 2d 256, 259 (CA7 1983) (“[T]he trial court properly resubmitted the inconsistent verdicts to the jury for reconsideration”); University Computing Co. v. Lykes-Youngstown Corp., 504 F. 2d 518, 547 (CA5 1974) (“[I]f the jury returns two inconsistent verdicts, the trial court may resubmit the issue to them for clarification”); Hopkins v. Coen, 431 F. 2d 1055, 1059 (CA6 1970) (upon receipt of inconsistent verdicts, trial court could have sent jury “back to the jury room to further deliberate with appropriate instructions to bring back consistent verdicts”); Alston v. West, 340 F. 2d 856, 858 (CA7 1965) (when jury returned an inconsistent verdict, “the court properly exercised its discretion in resubmitting the case to the jury”).

       See, e. g., Malley-Duff & Associates v. Crown Life Ins. Co., 734 F. 2d 133, 145 (CA3) (“We conclude that the answers to Questions 1, 2(A), and 2(B) may be considered inconsistent .... We will vacate the $900,000 verdict in the state law claims and order a new trial”), cert. denied, 469 U. S. 1072 (1984); Global Van Lines, Inc. v. Nebeker, 541 F. 2d 865, 868 (CA10 1976) (citing “the rule which says that inconsistencies which show jury confusion serve to mandate a new trial”); Wood v. Holiday Inns, Inc., 508 F. 2d 167, 175 (CA5 1975) (“Where verdicts in the same ease are inconsistent on their faces indicating that the jury was confused, a new trial is certainly appropriate and may even be required”). Cf. Fed. Rule Civ. Proc. 49(b) (appropriate remedy for inconsistent special verdicts and general verdict is resubmission to the jury, or a new trial).

       Cf. Alston v. West, supra (in negligence suit against flower shop and driver for automobile accident, jury initially returned verdict of liability for flower shop and no liability for driver; after case was resubmitted, jury returned liability verdicts against both employer and driver).


author: Per Curiam. Justice Marshall

text:
    DENNISON MANUFACTURING CO. v. PANDUIT CORP.
    No. 85-1150.
    Decided April 21, 1986
   Per Curiam.

Respondent holds three patents for plastic cable ties, products that are commercially successful. Petitioner copied respondent’s products, was sued for patent infringement in the Northern District of Illinois, and defended on the ground that the patents were invalid for obviousness. The trial judge examined the prior art, identified the differences between the prior art and each of the three patents at issue, and concluded that all of the improvements made by the three patents over the prior art would have been obvious to one skilled in that art. In the course of arriving at this conclusion, the trial judge recognized that the presumption of patent validity must be overcome by clear and convincing evidence, that the patents’ commercial success and the failure of competitors to develop equally successful inventions were important factors weighing in favor of the validity of the patents, and that in addressing the question of obviousness a judge must not pick and choose isolated elements from the prior art and combine them so as to yield the invention in question if such a combination would not have been obvious at the time of the invention. Nonetheless, the judge found .that respondent’s patents were invalid for obviousness.

The Court of Appeals for the Federal Circuit reversed. 774 F. 2d 1082 (1985). The court disagreed with the District Court’s assessment of the prior art, ruled that the references cited by the District Court did not teach the innovations introduced by respondent, and referred to other errors made by the District Court.

Petitioner contends that the Federal Circuit ignored Federal Rule of Civil Procedure 52(a) in substituting its view of factual issues for that of the District Court. In particular, petitioner complains of the rejection of the District Court’s determination of what the prior art revealed and its findings that the differences identified between respondent’s patents and the prior art were obvious.

Petitioner’s claims are not insubstantial. As this Court observed in Graham v. John Deere Co., 383 U. S. 1, 17-18 (1966):

“While the ultimate question of patent validity is one of law, . . . the §103 condition [that is, nonobviousness] . . . lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unresolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy.”

This description of the obviousness inquiry makes it clear that whether or not the ultimate question of obviousness is a question of fact subject to Rule 52(a), the subsidiary determinations of the District Court, at the least, ought to be subject to the Rule.

The Federal Circuit, however, did not mention Rule 52(a), did not explicitly apply the clearly-erroneous standard to any of the District Court’s findings on obviousness, and did not explain why, if it was of that view, Rule 52(a) had no applicability to this issue. We therefore lack an adequate explanation of the basis for the Court of Appeals’ judgment: most importantly, we lack the benefit of the Federal Circuit’s informed opinion on the complex issue of the degree to which the obviousness determination is one of fact. In the absence of an opinion clearly setting forth the views of the Court of Appeals on these matters, we are not prepared to give plenary consideration to petitioner’s claim that the decision below cannot be squared with Rule 52(a). Instead, we grant the petition for certiorari, vacate the judgment, and remand the case to the Court of Appeals for further consideration in light of Rule 52(a).

It is so ordered.

Justice Marshall

dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Cuyahoga Valley R. Co. v. United Transportation Union, 474 U. S. 3, 8 (1985) (Marshall, J., dissenting); Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting).