Washington Law Review


Bruce J. Borrus


The common law of defamation collided with the United States Constitution in New York Times Co. v. Sullivan, and aftershocks from that collision have been rumbling for sixteen years. Ever since the New York Times Court asserted that the first and fourteenth amendments impose restraints on a state's power to afford a civil remedy for wrongful injury to reputation, the Supreme Court has been torn between its concern for personal reputation and its competing concern for free expression. The difficulty of resolving the conflict between these two concerns has forced the Court to decide a long line of cases in an attempt to define precisely how the Constitution limits defamation actions. After discussing the leading cases in that line, this comment proposes an analytical method for deciding when balancing—a frequently used and controversial technique in free speech cases—is an inappropriate means for formulating a constitutional rule. Speech on public issues, being necessary for a self-governing democracy, is at the core of the first amendment. When such speech is at issue, the Court should not balance the value of speech against competing social values. In Gertz v. Robert Welch, Inc., for example, the Court should not have balanced the private individual's interest in recovering compensation for injury to his reputation against the public's interest in free political discussion. As a result of this balancing, the Gertz Court formulated rules which unduly limit the right to speak and to hear about public issues. Specifically, the Gertz rules make substantial constitutional protection dependent on whether the plaintiff in a subsequent defamation suit is a public official or a private figure. Thus, the rules fail to protect a speaker from defamation liability for speech on public issues that implicates a private individual. This failure is exemplified in Hutchinson v. Proxmire, in which Senator Proxmire's criticism of wasteful government spending subjected him to defamation liability. This comment concludes that the Constitution should provide absolute protection for speech at the core of the first amendment, speech necessary for self-government, and that the New York Times privilege should extend to such speech.

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