A. S. Abell Co. v. Barnes

Orth, J., delivered the opinion of the Court. On 9 March 1964 the Supreme Court of the United States decided New York Times Company v. Sullivan, 376 U. S. 254 . New York Times sired Garrison v. State of Louisiana, 379 U. S. 64 (1964) ; Henry v. Collins, 380 U. S. 356 (1965); Linn v. United Plant Guard Wkrs. of Amer., Loc. lib, 383 U. S. 53 (1966) ; Rosenblatt v. Baer, 383 U. S. 75 (1966) ; Time, Inc. v. Hill, 385 U. S. ⁵⁹ 374 (1967) ; Curtis Publishing Co. v. Butts and The Associated Press v. Walker reported together in 388 U. S. 130 (1967); Beckley Newspapers Corp. v. Hanks, 389 U. S. 81 (1967) ; St. Amant v. Thompson, 390 U. S. 727 (1968) ; and Pickering v. Board of Education, 391 U. S. 563 (1968). One of the things the prolific New York Times and its progeny did was to measure state law, both civil and criminal, with respect to libel, slander and privacy, by constitutional standards, impressing on it the first amendment guarantees of free speech and press. 1 They did so in such a way as to grant immunity from punishment by way of damages, imprisonment, fine or otherwise to publishers of statements concerning the official conduct of public officials and concerning matters of public interest related to public figures.

The immunity is by privilege to the published statements. The privilege extends to true statements and false statements. 2 With respect to true statements the privilege is absolute; 3 with respect to false statements it is condi ⁶⁰ tional. The privilege is removed only from those false statements which are made with “actual malice.” With regard to libel we consider the rule to be: The constitutional guarantees prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct or a public figure from recovering damages for a defamatory falsehood relating to a matter of public interest 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. Our statement of the rule requires explanation and elaboration.

It requires explanation as to why we think the reckless-disregard-of-truth standard is applicable equally with respect to public officials and public figures. It requires elaboration as to the meaning of terms used in stating it — “public official”, “public figure” and “reckless disregard.” New York Times, 4 holding that “The Constitution delimits a state’s power to award damages for libel actions brought by public officials against critics of their official conduct”, 5 at 283, enunciated a rule applicable to such actions, at 279-280: “The constitutional guarantees require, we think, a federal rule that prohibits a public of ⁶¹ ficial 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.” Although the rule by its terms was limited to “public officials”, it seemed inevitable that the opinion would serve as a basis for expansion so as to affect those other than “public officials.” This was realized in Butts and Walker , in which the ambit of constitutional concern was extended to “public figures”, but it was done in such a way as to cast doubt on the standard to be applied to “public figures”. The judgments of the Court, affirming the judgment in favor of Butts and reversing the judgment in favor of Walker, were announced by Mr. Justice Harlan who delivered an opinion in which Justices Clark, Stewart and Fortas joined. The Chief Justice delivered an opinion concurring in the results of both cases.

Each of Mr. Justice Black, with whom Mr. Justice Douglas joined, and Mr. Justice Brennan, with whom Mr. Justice White joined, delivered an opinion concurring in the results of Walker and dissenting in Butts. The Harlan opinion noted that the two cases were brought to the Court “to consider the impact of [New York Times] on libel actions instituted by persons who are not public officials, but who are ‘public figures’ and involved in issues in which the public has a justified and important interest.” At 134. All the members of the Court were in agreement that the basic considerations underlying the First Amendment required that some limitations be placed on the application of state libel laws to “public figures” as well as “public officials.” The Harlan opinion stated a rule, at 155: “We consider and would hold that a ‘public figure’ who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to ⁶² reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” Mr. Chief Justice Warren expressly rejected this test, adhering “to the New York Times standard in the case of ‘public figures’ as well as ‘public officials.’ ” Id. at 164 . Justices Brennan and White joined the Chief Justice in this.

Id. at 172 . Justices Black and Douglas did not adopt either standard. They thought it was time for the Court to abandon New York Times and adopt the rule to the effect that the First Amendment was intended to leave the press free from harassment of libel judgments. Id. at 172 .

Thus the opinions did not announce a standard under which limitations were placed on the application of state libel laws as to “public figures” that had support of a majority of the Court. In these circumstances we are constrained to apply the New York Times standard with respect to public officials equally with respect to public figures. We are not persuaded that the critic of a public figure should be afforded less protection, if that is what the Harlan rule does, than the critic of a public official. We point out the subtle difference between the public figure and the public official found by Chief Justice Warren which moves in the direction of giving more protection, if there must be a distinction, to the critic of the public figure rather than to the critic of the public official.

He said in his opinion in Butts, at 164, “The fact that [public figures] are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest [in the conduct of such persons], since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.” And we point out that in Hill the actual malice standard was afforded to the publisher of an article which invaded the privacy of a private individual who was only invol ⁶³ untarily newsworthy. We make one more observation. It would seem that the distinction between proof establishing highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers and proof establishing reckless disregard for truth or falsity is so fine, if indeed there be a real distinction at all, as not to justify a further clouding of law of defamation by the adoption of the separate standard. In elaboration we first consider when a person is to be deemed a “public official” or “public figure.” New York Times, as to “public official”, expressly begged the question. “We have no occasion here to determine how far down into the lower ranks of government employees the ‘public official’ designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included.” 376 TJ.

S., note 23, at 283. Although not defining “public official”, the Court indicated, by referring to “categories of persons who would or would not be included”, that the designation “public official” was not limited to “government employees.” In Rosenblatt the Court observed that the question whether the respondent was a “public official” under New York Times was squarely presented. It first rejected the suggestion that whether or not a person is a “public official” should be answered by reference to state-law standards. “States have developed definitions of ‘public official’ for local administrative purposes, not the purposes of a national constitutional protection.” At 84. But it found that no precise lines had to be drawn for the purposes of its decision.

Asserting that the motivating force for the New York Times decision was twofold: (1) a strong interest in debate on public issues, and (2) a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues, it said, “Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of ⁶⁴ government itself be penalized. It is clear, therefore, that the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs.” At 85. The Court announced a test, at 86: “Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply.” Mr. Justice Douglas suggested in his concurring opinion that this test might apply to a night watchman accused of stealing state secrets.

The majority referred to this in a footnote, note 13, at 86, and answered: “But a conclusion that the New York Times malice standards apply could not be reached merely because a statement defamatory of some person in government employ catches the public’s interest; that conclusion would virtually disregard society’s interest in protecting reputation. The employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” Butts and Walker , as we have noted, was concerned with “public figures”. The Harlan opinion did not define “public figure”. It did state, at 147-148 : “From the point of view of deciding whether a constitutional interest of free speech and ⁶⁵ press is properly involved in the resolution of a libel question a rational distinction ‘cannot be founded on the assumption that criticism of private citizens who seek to lead in the determination of * * * policy will be less important to the public interest than will criticism of government officials.’ Pauling v. Globe-Democrat Publishing Co., 8 Cir. 362 F. 2d 188,196 .” The Chief Justice in his opinion found no material distinction between “public figures” and public officials”.

He said, at 163-164: “To me, differentiation between ‘public figures’ and ‘public officials’ and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors are blurred. Since the depression of the 1930’s and World War II there has been a rapid fusion of economic and political power, a merging of science, industry, and government, and a high degree of interaction between the intellectual, governmental, and business worlds. Depression, war, international tensions, national and international markets, and the surging growth of science and technology have precipitated national and international problems that demand national and international solutions.

While these trends and events have occasioned a consolidation of governmental power, power has also become much more organized in what we have commonly considered to be the private sector. In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the ⁶⁶ Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large. Viewed in this context, then, it is plain that although they are not subject to the restraints of the political process, ‘public figures,’ like ‘public officials,’ often play an influential role in ordering society.

And surely as a class these ‘public figures’ have as ready access as ‘public officials’ to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of ‘public officials.’ The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.” There was no debate among the Court as to whether Butts and Walker were public figures. Seven of the members who deemed it necessary to pass on the question agreed that each was a public figure for First Amendment purposes. Walker was a retired United States general who could be fairly deemed to be a man of some political prominence.

Butts was a nationally known football coach, then athletic director at a state university but privately paid. The Harlan opinion recognized that none of the particular considerations involved in New York Times was present in the two cases before it. The ⁶⁷ actions could not be analogized to prosecutions for seditious libel. Neither Butts nor Walker had any position in government which would permit a recovery by him to be viewed as a vindication of governmental policy.

Neither was entitled to a special privilege protecting his utterances against accountability in libel. But both commanded a substantial amount of independent public interest at the time of the publications and both would have been labeled “public figures” under ordinary tort rules. The opinion reasoned that Butts may have attained his status of a public figure by position alone and Walker by his purposeful activity amounting to a thrusting of his personality into the “vortex” of an important public controversy — the enrollment of James Meredith as a student in the University of Mississippi. The Chief Justice, noting that both cases involved public figures, observed with respect to Walker: “Under any reasoning, General Walker was a public man in whose public conduct society and the press had a legitimate and substantial interest.” We gather from the whole of New York Times, Rosenblatt and Butts and Walker that the public official designation applies at the very least to those government employees who have, or appear to have, substantial responsibility for or control over the conduct of government affairs.

This would he so when his position in government has such apparent importance that the public has an independent interest in the qualification and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees. But this public interest in the person must be apart from such interest as may be occasioned by the charges in controversy. While a person who is a public official is obviously a public figure, a person may be a public figure without being a public official. A person, not a public official, may be a public figure by position alone, as was Butts, or he may become a public figure by purposeful activity amounting to a thrusting of his personality into the vortex of an important public ⁶⁸ controversy as did Walker, or by seeking to lead in the determination of policy, or, because, by any reasoning, he is a public man in whose public conduct society and the press have a legitimate and substantial interest.

In sum, for first amendment purposes, whether a person is a public figure, vel non, depends, within the guidelines set out, upon the facts and circumstances of the particular case. We observe in passing that it is difficult for us to reconcile Hill with Butts and Walker . Decided about a year after Rosenblatt and five months before Butts and Walker, Hill applied the actual malice standard of New York Times to a statutory invasion of privacy action where false statements were made concerning a private person who was involuntarily newsworthy. The verdict in favor of Hill was upset five to four.

Mr. Justice Brennan delivered the opinion of the Court and four other justices delivered opinions. The Brennan opinion stated that there was no doubt that the subject of the publication, the opening of a new play linked to an actual incident, was a matter of public interest. Thus it was “newsworthy” and being newsworthy was within the sphere in which state-law remedies for aggrieved individuals are subject to judicial review under the first amendment. Was Hill a “public figure” because by no choice of his own he was a part of the actual incident to which the play was linked?

The opinion did not say. It appeared to be the thesis of the opinion that “newsworthiness” defined the ambit of judicial concern rather than the status of the person aggrieved. But in Butts and Walker , neither the Harlan opinion nor the Warren opinion, in both of which the ambit issue was confronted again, called upon Hill but went back to New York Times to extend by analogy the basic protection set out in New York Times. And in Hill, the Court did not openly invoke New York Times.

Are we to conclude, one commentator asks, that there are at present “two ambits of constitutionally protected speech, one appropriate only for false statements about individuals treated as privacy actions, the other ⁶⁹ reserved for false statements about individuals treated as libel actions.” 6 We consider, until the Supreme Court indicates otherwise, that it saw Hill and Butts and Walker as presenting problems it wishes to keep separate. 7 We observe that in the Harlan opinion in Butts and Walker it was carefully pointed out: “Nothing in this opinion is meant to affect the holdings in New York Times and its progeny, including our recent decision in Time, Inc. v. Hill.” This statement was elaborated by a footnote, note 19 at p. 155: “Nor does anything we have said touch, in any way, libel or other tort actions not involving public figures [which we take to refer to the ambit of libel under New York Times as expanded by analogy] or matters of public interest [which we take to refer to the ambit of privacy under Hill].” Next, in elaboration, we consider the reckless-disregard-of-truth standard. It is not the same as the reasonable-belief standard. “The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.” Garrison at 79 . It is when statements are “made with the high degree of awareness of their probable falsity demanded bjr Neiv York Times”, id. at 74 , that they are made with reckless disregard for their truth. Or as was said in St. Amant at 731: “[Rleckless 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 ⁷⁰ 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.” But the Court warned, at 732: “The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.

Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” As to the degree of proof to show actual malice, it must be of “the convincing clarity which the constitutional standard demands”, unassisted by presumptions based on falsity. New York Times at 285-286. And see Beckley Newspapers Corp. at 83.

We turn now to the case before us. The A. S. Abell Company (appellant) 8 was shown to have published a statement concerning Elizabeth C. Barnes (appellee), 9 which falsely 10 imputed to her the commission of a crime subjecting her to prosecution and punishment, 11 thus ⁷¹ constituting a libel to her actionable per se. See American Stores Co. v. Byrd, 229 Md. 5, 13 , citing Dorsey v. Whipps, 8 Gill 457 , 462 and Haines v. Campbell, 74 Md. 158 . The case was tried before a jury in the Baltimore City Court.

At the close of all the evidence appellant moved for a directed verdict 12 and appellee moved for a directed verdict in her favor on the issue of liability. The lower court denied appellant’s motion and granted appellee’s motion, permitting the case to go to the jury on the question of damages. The jury awarded appellee $7500 for compensatory damages and made no award for punitive damages. We have recognized an obligation, when the question is whether publications are obscene and thus without the protection of the first amendment, to make an independent constitutional judgment on the facts.

Sanza v. Md. Board of Censors, 245 Md. 319, 330 . We have the same obligation when the question is the effect of the first amendment on libelous publications, since the question is one of alleged trespass across “the line between speech unconditionally guaranteed and speech which may legitimately be regulated.” Speiser v. Randall, 357 U. S. 513, 525 . “In cases where that line must be drawn, the rule is that we ‘examine for ourselves the statements in issue and the circumstances under which they were made to see * * * whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.’ Pennekamp v. Florida, 328 U. S. 331, 335 , 66 S. Ct. 1029, 1031 , 90 L. Ed. 1295 ; see also One, Inc. v. Olesen, 355 U. S. 371 , 78 S. Ct. 364 , 2 L. Ed. 2d 352 ; Sunshine Book Co. v. Summerfield, 355 U. S. 372 , 78 S. ⁷² Ct. 365, 2 L. Ed. 2d 352 . We must ‘make an independent examination of the whole record,’ Edwards v. South Carolina, 372 U. S. 229, 235 , 83 S. Ct. 680, 683 , 9 L. Ed. 2d 697 , so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times, at 285. See Bachellar et al. v. State of Maryland, 397 U. S. 564 , 7 Cr.

L. 3051, decided 20 April 1970. There was evidence, adduced through the testimony of appellee, that she had received the degree of Bachelor of Arts, cum laude, from Bryn Mawr College, and the degree of Bachelor of Laws, cum laude, from the University of Maryland. She was admitted to the practice of law in courts of this State and the federal courts in 1936. Shortly after her graduation and before her marriage, she assisted in research for the Restatement of Trusts of the American Law Institute, being so engaged for about a year and a half.

It was elicited that while attending law school she “was very much interested in the study of constitutional law, and the reason for that was because my father had had many interesting cases as a Judge in the Federal Courts and discussed them with us at length at home, and then, of course, my husband has always been interested in it. So that I have,