First Amendment Friday 9 – Gertz v Richard Welch Inc

Happy Friday and welcome to the 9th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:

Originally posted at

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

First Amendment Friday 4 – Brandenbrug V Ohio

First Amendment Friday 5 – Bridges V California

First Amendment Friday 6 – Planned Parenthood V ACLA

First Amendment Friday 7 – New York Times V Sullivan

First Amendment Friday 8 – Butts V Curtis

This week we continue to watch the Court try to get itself out of the whole it dug with New York Times v. Sullivan. The Dog agrees with the High Courts thinking in that case, but by defining new rules for libel which required malice the Justices opened up a major can of worms. In New York Times they found public officials had less recourse, even at the State level to libel action from the fact of their public service and the need for a self governing people to be able to discuss the people who govern them, even if the facts published might not be completely accurate.

In Curtis the High Court extended this doctrine to “public people” these being people who by their actions or statements or general fame had come into the awareness of the public. It also included issues where the public interest in an issue brings such people to light. In this case the Justices decided there was such a thing a reckless disregard for the truth as well as failures of good faith practice in publishing which could strip a publisher of the protections against libel.

Can it be any surprise the Court had to return to this issue when it came to private citizens, if only to define where the edges of  “issues of public interest” made a private citizen a public person?

The Case

Gertz v. Robert Welch Inc.

The Facts:

In 1968 a Chicago police officer named Nuccio shot and killed a young man named Nelson. The State of Illinois prosecuted Mr. Nuccio for homicide and convicted him of murder in the second degree.

Mr. Nelson’s family retained a lawyer by the name of Elmer Gertz to represent them in a civil suit against Mr. Nuccio. As part of this role Mr. Gertz participated in the Coroners Inquest. He did not discuss Mr. Nuccio with the press nor was he part of the criminal proceedings.

Welch Inc. was the publisher of American Opinion a magazine which was an outlet for the views of the James Birch Society (a far right anti- communist, anti- globalization conservative group) in 1969 published an article called “Frame Up: Richard Nuccio and the War On Police. In this article the it was claimed Mr. Getz was the architect of the “frame up”.

The article made several claims about Mr. Gertz; that he had an extensive police record, that he was a member of the Marxist League for Industrial Democracy, that he was a officer of the National Lawyers Guild, which it described as a Communist organization. The article also claimed the National Lawyers Guild:

“probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.”

Most of these accusations were flatly untrue. Mr. Gertz had been a member of the NLG fifteen years prior to the ’68 riots, but there was no evidence at all they were in any way part of planning the riots.

There was no evidence Mr. Gertz was a Communist or Leninist as the article claimed. And he had never been a member of the Marxist League.

The Managing Editor of American Opinion made no effort to confirm the accusations in the article. However he did put an editorial introduction on the article stating the writer had done “extensive research in to the Richard Nuccio case” and posted a picture of Mr. Gertz with the caption “Elmer Gertz of Red Guild harasses Nuccio” on the article.

Procedural Background

Mr. Gertz filed suit claiming damage to his reputation as a lawyer and a citizen.

Welch Inc. filed for a summary judgment using the argument that Mr. Gertz was a public figure and as such AO was immune from libel if there was no “malice” under the rule developed in New York Times v Sullivan. Welch Inc. claimed Mr. Gertz could not show there was actual malice involved, since the Editor had no knowledge of the facts involved except through that article itself. Since the writer of the article had been reliable in the past, there was no malice.

The District Court denied Welch Inc, under the premise if there was no malice under the definition in New York Times v Sullivan they would be able to prevail at trail.

At trail the court found that Welch Inc did not have a right to apply the public official or public figure defense to Mr. Gertz. It did not accept the idea of “issue of public interest” as ground for immunity. This happened after all evidence had been presented in the case.

The Court instructed the jury that the article itself under Illinois State law was libel per se and they should only consider the issue of damages, not any of the other issues they had herd evidence on.

The jury awarded Mr. Gertz $50,000. After more consideration the Court reversed itself and found Welch Inc. did have a immunity from libel on any issue of public interest and entered a judgment in Welch Inc.’s favor.

When the case went to the 7th Circuit Court of Appeals, the Court, while doubting the expansiveness of this immunity, upheld the lower courts verdict.

The Legal Issues

At what point is does a private citizen become a public person if they have not sought the view of the public?

What is considered an issue of public interest?

The Majority Opinion:

The High Court had been down this road before. They had a case called Rosenbloom v Mulimedia in which the Court had five separate opinions written. There was no majority opinion in this case, but rather a plurality one. This is a really bad situation for the High Court. In his opinion Justice Powell explains;

The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom v. Metromedia, Inc., (1971). Rosenbloom, a distributor of nudist magazines, was arrested for selling allegedly obscene material while making a delivery to a retail dealer. The police obtained a warrant and seized his entire inventory of 3,000 books and magazines. He sought and obtained an injunction prohibiting further police interference with his business. He then sued a local radio station for failing to note in two of its newscasts that the 3,000 items seized were only “reportedly” or “allegedly” obscene and for broadcasting references to “the smut literature racket” and to “girlie book peddlers” in its coverage of the court proceeding for injunctive relief. He obtained a judgment against the radio station, but the Court of Appeals for the Third Circuit held the New York Times privilege applicable to the broadcast, and reversed.

This Court affirmed the decision below, but no majority could agree on a controlling rationale. The eight Justices  who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. The several statements not only reveal disagreement about the appropriate result in that case, they also reflect divergent traditions of thought about the general problem of reconciling the law of defamation with the First Amendment. One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation.

The High Court in this case is once again trying to thread the needle. They have been trying to preserve the long held common law concept that there must be compensation for damage done to reputation with the very clear instruction in the First Amendment on the freedom of the press.

Their concern is if the press has to constantly wonder what a jury might find libelous they would self-censor for fear of the awards juries would give. This is particularly true because of the lack of rules for punitive damages. Juries who like the opinions of the person libeled are likely to give huge awards. This could turn into a de facto censorship on issues like civil rights.

Justice Powell writes:

Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties.

After discussing all the back in forth of the Court in Rosenbloom, Justice Powell comes to this needle threading;

We hold that, so 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. This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement “makes substantial danger to reputation apparent.” This phrase places in perspective the conclusion we announce today.

The basic idea is that as long as a State does not make libel law so that it requires a finding of some kind of fault, like lack of standards or care in reporting, libel laws can be used for compensatory damages. This is a lower standard than “malice” in New York Times, but higher than the previous State standard where the publishing of defamatory articles was enough to claim damages.

The Court when on to deal with what they found the real problem, punitive damages. These are damages which are intended to prevent the party at fault from acting in a libelous manner again. The Justices strike down this provision as not actually in the interest of the State. Justice Power writes;

We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.

The Court is saying you are entitled to be compensated for defamatory reporting if you are not a public person, and if they did it in anything other than good faith, as long as your State allows for it, only to the level you were actually harmed.

Justice Powell addresses the second legal issue by looking at the facts of Mr. Gertz life. Was he a person who was trying to be in the public eye and by his action influence public discourse  or was he just working in his field which interacted with the public arena?

Justice Powell writes;

In this context, it is plain that petitioner was not a public figure. He played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press, and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

We therefore conclude that the New York Times standard is inapplicable to this case, and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.

The Dissent:

There were four dissents in this case. This by itself is a clear indication the High Court was in no way unified on this new “lower than New York Times, but higher than libel per se” test for the States. Most of the arguments against this rest in the application of the Fourteenth Amendment which extends Federal issues to the States.

For the purpose of brevity the Dog is going to just talk about the one he finds most persuasive, even though it does not rest on the Fourteenth Amendment.

Chief Justice Burger had two points to make in his dissent, first:

Agreement or disagreement with the law as it has evolved to this time does not alter the fact that it has been orderly development with a consistent basic rationale. In today’s opinion, the Court abandons the traditional thread so far as the ordinary private citizen is concerned, and introduces the concept that the media will be liable for negligence in publishing defamatory statements with respect to such persons. Although I agree with much of what MR. JUSTICE WHITE states, I do not read the Court’s new doctrinal approach in quite the way he does. I am frank to say I do not know the parameters of a “negligence” doctrine as applied to the news media. Conceivably this new doctrine could inhibit some editors, as the dissents of MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN suggest. But I would prefer to allow this area of law to continue to evolve as it has up to now with respect to private citizens, rather than embark on a new doctrinal theory which has no jurisprudential ancestry.

The Chief Justices point here is the Court is carving out new law and he is uncomfortable with the test the majority has devised. He is believes there will be more testing this area of law and it should be allowed, rather than the High Court devising new ways of looking at things out of whole clothe.

This does not mean he would not find for Mr. Gertz, but he has other more narrow reasons to do so:

The petitioner here was performing a professional representative role as an advocate in the highest tradition of the law, and, under that tradition, the advocate is not to be invidiously identified with his client. The important public policy which underlies this tradition — the right to counsel — would be gravely jeopardized if every lawyer who takes an “unpopular” case, civil or criminal, would automatically become fair game for irresponsible reporters and editors who might, for example, describe the lawyer as a “mob mouthpiece” for representing a client with a serious prior criminal record, or as an “ambulance chaser” for representing a claimant in a personal injury action.

I would reverse the judgment of the Court of Appeals and remand for reinstatement of the verdict of the jury and the entry of an appropriate judgment on that verdict.

Here the Chief Justice makes a great point which today seems to be lost too often. A lawyer should not be viewed positively or negatively because of the case he takes. In our system of justice there must be representations on both sides if the crucible of the truth is to be useful. If attorneys become concerned about whom they represent as opposed to the law, then the system falls apart.

So, there is this weeks case. What do you think citizens? Did the Court get this right or are they going to have to try to split the baby one more time?

The floor is yours!


As always much thanks to the Legal Information Institute for providing a one stop shop for Supreme Court Cases, you can find today’s case at this link.  


  1. For the High Court? How about for the Dog?  

    • Viet71 on June 26, 2009 at 20:45

    Gertz pretty clearly wasn’t a public figure — just a lawyer doing what lawyers do.  So the rationale underlying the “actual malice” rule of NY Times v. Sullivan was inapplicable to him.  So far, so good.

    But the majority then goes on to throw out a longstanding rule of libel law.  Which was that when a person’s business or professional reputation is smeared by a libel — what the common law called a libel per se — economic damage is PRESUMED, and it’s up to the jury to determine an appropriate award of monetary damages.

    The reason for the presumption of damage was that the libel most likely adversely affects the wronged person’s earning capacity, but he or she may never know by how much.

    Which is true of Gertz.  The majority say he can recover only those damages he can prove to have suffered.  But how can he prove, for example, that the libel has cost him clients, or will cost him clients in the future?

    The majority awarded Gertz a hollow victory, I believe, and in doing so severely eroded the role of the jury as finders of fact.

    Thanks again, Dog.  This is a great series.  Hope you tackle all the Amendments.

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