The three previous sections considered primarily but not exclusively incidental restraints on expression as a result of governmental regulatory measures aimed at goals other than control of the content of expression; this section considers the permissibility of governmental measures which are directly concerned with the content of expression. 66 As a general matter, government may not regulate speech ''because of its message, its ideas, its subject matter, or its content.'' 67 Invalid content regulation includes not only restrictions on particular viewpoints, but also prohibitions on public discussion of an entire topic. 68
Originally the Court took a ''two-tier'' approach to content- oriented regulation of expression. Under the ''definitional balancing'' of this approach, some forms of expression are protected by the First Amendment and certain categories of expression are not entitled to protection. This doctrine traces to Chaplinsky v. New Hampshire, 69 in which the Court opined that ''certain well-defined and narrowly limited classes of speech . . . are no essential part of any exposition of ideas, and are of such slight social value as a step to truth'' that government may prevent those utterances and punish those uttering them without raising any constitutional problems. If speech fell within the Chaplinsky categories, it was unprotected, regardless of its effect; if it did not, it was covered by the First Amendment and it was protected unless the restraint was justified by some test relating to harm, such as clear and present danger or a balancing of presumptively protected expression against a governmental interest which must be compelling.
For several decades, the decided cases reflected a fairly consistent and sustained march by the Court to the elimination of, or a severe narrowing of, the ''two-tier'' doctrine. The result was protection of much expression that hitherto would have been held absolutely unprotected (e.g., seditious speech and seditious libel, fighting words, defamation, and obscenity). More recently, the march has been deflected by a shift in position with respect to obscenity and by the creation of a new category of non-obscene child pornography. But in the course of this movement, differences surfaced among the Justices on the permissibility of regulation based on content and the interrelated issue of a hierarchy of speech values, according to which some forms of expression, while protected, may be more readily subject to official regulation and perhaps suppression than other protected expression. These differences were compounded in cases in which First Amendment expression values came into conflict with other values, either constitutionally protected values such as the right to fair trials in criminal cases, or societally valued interests such as those in privacy, reputation, and the protection from disclosure of certain kinds of information.
Attempts to work out these differences are elaborated in the following pages, but the effort to formulate a doctrine of permissible content regulation within categories of protected expression necessitates a brief treatment. It remains standard doctrine that it is impermissible to posit regulation of protected expression upon its content. 70 But in recent Terms, Justice Stevens has articulated a theory that would permit some governmental restraint based upon content. In Justice Stevens' view, there is a hierarchy of speech; where the category of speech at issue fits into that hierarchy determines the appropriate level of protection under the First Amendment. A category's place on the continuum is guided by Chaplinsky's formulation of whether it is ''an essential part of any exposition of ideas'' and what its ''social value as a step to truth'' is. 71 Thus, offensive but nonobscene words and portrayals dealing with sex and excretion may be regulated when the expression plays no role or a minimal role in the exposition of ideas. 72 ''Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice.'' 73
While a majority of the Court has not joined in approving Justice Stevens' theory, 74 the Court has in some contexts of covered expression approved restrictions based on content, 75 and in still other areas, such as privacy, it has implied that some content- based restraints on expression would be approved. 76 Moreover, the Court in recent years has emphasized numerous times the role of the First Amendment in facilitating, indeed making possible, political dialogue and the operation of democratic institutions. 77 While this emphasis may be read as being premised on a hierarchical theory of the worthiness of political speech and the subordinate position of less worthy forms of speech, more likely it is merely a celebration of the most worthy role speech plays, and not a suggestion that other roles and other kinds of discourses are relevant in determining the measure of protection enjoyed under the First Amendment. 78
That there can be a permissible content regulation within a category of protected expression was questioned in theory, and rejected in application, in Hustler Magazine, Inc. v. Falwell. 79 In Falwell the Court refused to recognize a distinction between permissible political satire and ''outrageous'' parodies ''doubtless gross and repugnant in the eyes of most.'' 80 ''If it were possible by laying down a principled standard to separate the one from the other,'' the Court suggested, ''public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description 'outrageous' does not supply one.'' 81 Falwell can also be read as consistent with the hierarchical theory of interpretation; the offensive advertisement parody was protected as within ''the world of debate about public affairs,'' and was not ''governed by any exception to . . . general First Amendment principles.'' 82
So too, there can be impermissible content regulation within a category of otherwise unprotected expression. In R. A. V. v. City of St. Paul, 83 the Court struck down a hate crimes ordinance construed by the state courts to apply only to use of ''fighting words.'' The difficulty, the Court found, was that the ordinance made a further content discrimination, proscribing only those fighting words that would arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender. This amounted to ''special prohibitions on those speakers who express views on disfavored subjects.'' 84 The fact that government may proscribe areas of speech such as obscenity, defamation, or fighting words does not mean that these areas ''may be made the vehicles for content discrimination unrelated to their distinctly proscribable content. . . . [G]overnment may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.'' 85
Content regulation of protected expression is measured by a compelling interest test derived from equal protection analysis: government ''must show that its regulation is necessary to serve a compelling [governmental] interest and is narrowly drawn to achieve that end.'' 86 Application of this test ordinarily results in invalidation of the regulation. 87 Objecting to the balancing approach inherent in this test because it ''might be read as a concession that [government] may censor speech whenever they believe there is a compelling justification for doing so,'' Justice Kennedy argues instead for a rule of per se invalidity. 88 But compelling interest analysis can still be useful, the Justice suggests, in determining whether a regulation is actually content-based or instead is content-neutral; in those cases in which the government tenders ''a plausible justification unrelated to the suppression of expression,'' application of the compelling interest test may help to determine ''whether the asserted justification is in fact an accurate description of the purpose and effect of the law.'' 89
Seditious Speech and Seditious Libel .--Opposition to government through speech alone has been subject to punishment throughout much of history under laws proscribing ''seditious'' utterances. In this country, the Sedition Act of 1798 made criminal, inter alia, malicious writings which defamed, brought into contempt or disrepute, or excited the hatred of the people against the Government, the President, or the Congress, or which stirred peo ple to sedition. 90 In New York Times Co. v. Sullivan, 91 the Court surveyed the controversy surrounding the enactment and enforcement of the Sedition Act and concluded that debate ''first crystallized a national awareness of the central meaning of the First Amendment. . . . Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history . . . . [That history] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.'' The ''central meaning'' discerned by the Court, quoting Madison's comment that in a republican government ''the censorial power is in the people over the Government, and not in the Government over the people,'' is that ''[t]he right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental principle of the American form of government.''
Little opportunity to apply this concept of the ''central meaning'' of the First Amendment in the context of sedition and criminal syndicalism laws has been presented to the Court. In Dombrowski v. Pfister 92 the Court, after expanding on First Amendment grounds the discretion of federal courts to enjoin state court proceedings, struck down as vague and as lacking procedural due process protections certain features of a state ''Subversive Activities and Communist Control Law.'' In Brandenburg v. Ohio, 93 a state criminal syndicalism statute was held unconstitutional because its condemnation of advocacy of crime, violence, or unlawful methods of terrorism swept within its terms both mere advocacy as well as incitement to imminent lawless action. A seizure of books, pamphlets, and other documents under a search warrant pursuant to a state subversives suppression law was struck down under the Fourth Amendment in an opinion heavy with First Amendment overtones. 94
Fighting Words and Other Threats to the Peace .--In Chaplinsky v. New Hampshire, 95 the Court unanimously sustained a conviction under a statute proscribing ''any offensive, derisive, or annoying word'' addressed to any person in a public place under the state court's interpretation of the statute as being limited to ''fighting words''-- i.e., to ''words . . . [which] have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.'' The statute was sustained as ''narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.'' 96 The case is best known for Justice Murphy's famous dictum. ''[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances 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.'' 97
Chaplinsky still remains viable for the principle that ''the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called 'fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.'' 98 But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains formally alive but of little vitality. 99
On the obverse side, the ''hostile audience'' situation, the Court once sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders. 100 But this case has been significantly limited by cases which hold protected the peaceful expression of views which stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that breach of the peace and disorderly conduct statutes may not be used to curb such expression.
The cases are not clear to what extent the police must go in protecting the speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder will entitle the authorities to terminate the speech or other expressive conduct. 101 Neither, in the absence of incitement to illegal action, may government punish mere expression or proscribe ideas, 102 regardless of the trifling or annoying caliber of the expression. 103
Group Libel, Hate Speech .--In Beauharnais v. Illinois, 104 relying on dicta in past cases, 105 the Court upheld a state group libel law which made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, a part of which was in the form of a petition to his city government, taking a hard-line white supremacy position and calling for action to keep African Americans out of white neighborhoods. Justice Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every State in the Union. These laws raise no constitutional difficulty because libel is within that class of speech which is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, no good reason appears to deny a State the power to punish the same utterances when they are directed at a defined group, ''unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.'' 106 The Justice then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably fear substantial evils from unrestrained racial utterances. Neither did the Constitution require the State to accept a defense of truth, inasmuch as historically a defendant had to show not only truth but publication with good motives and for justifiable ends. 107 ''Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase 'clear and present danger.''' 108
Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court's subjection of defamation law to First Amendment challenge and its ringing endorsement of ''uninhibited, robust, and wide-open'' debate on public issues in New York Times Co. v. Sullivan. 109 In R. A. V. v. City of St. Paul, the Court, in an opinion by Justice Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not ''entirely invisible to the Constitution,'' but instead ''can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.'' 110 Content discrimination unrelated to that ''distinctively proscribable content'' runs afoul of the First Amendment. Therefore, the city's bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. ''The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.'' 111
Defamation .--One of the most seminal shifts in constitutional jurisprudence occurred in 1964 with the Court's decision in New York Times Co. v. Sullivan. 112 The Times had published a paid advertisement by a civil rights organization criticizing the response of a Southern community to demonstrations led by Dr. Martin Luther King, and containing several factual errors. The plaintiff, a city commissioner in charge of the police department, claimed that the advertisement had libeled him even though he was not referred to by name or title and even though several of the incidents described had occurred prior to his assumption of office. Unanimously, the Court reversed the lower court's judgment for the plaintiff. To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be foreclosed by the ''label'' attached to something. ''Like . . . the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.'' 113 ''The general proposition,'' the Court continued, ''that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e consider this case 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 un pleasantly sharp attacks on government and public officials.'' 114 Because the advertisement was ''an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection . . . [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.'' 115
Erroneous statement is protected, the Court asserted, there being no exception ''for any test of truth.'' Error is inevitable in any free debate and to place liability upon that score, and especially to place on the speaker the burden of proving truth, would introduce self- censorship and stifle the free expression which the First Amendment protects. 116 Nor would injury to official reputation afford a warrant for repressing otherwise free speech. Public officials are subject to public scrutiny and ''[c]riticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputation.'' 117 That neither factual error nor defamatory content could penetrate the protective circle of the First Amendment was the ''lesson'' to be drawn from the great debate over the Sedition Act of 1798, which the Court reviewed in some detail to discern the ''central meaning of the First Amendment.'' 118 Thus, it appears, the libel law under consideration failed the test of constitutionality because of its kinship with seditious libel, which violated the ''central meaning of the First Amendment.'' ''The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'' 119
In the wake of the Times ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Frankfurter had relied in analogy to uphold the group libel law in Beauharnais. 120 In neither case did the Court apply the concept of Times to void them altogether. Garrison v. Louisiana 121 held that a statute that did not incorporate the Times rule of ''actual malice'' was invalid, while in Ashton v. Kentucky 122 a common-law definition of criminal libel as ''any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act, which, when done, is indictable'' was too vague to be constitutional.
The teaching of Times and the cases following after it is that expression on matters of public interest is protected by the First Amendment. Within that area of protection is commentary about the public actions of individuals. The fact that expression contains falsehoods does not deprive it of protection, because otherwise such expression in the public interest would be deterred by monetary judgments and self- censorship imposed for fear of judgments. But, over the years, the Court has developed an increasingly complex set of standards governing who is protected to what degree with respect to which matters of public and private interest.
Individuals to whom the Times rule applies presented one of the first issues for determination. At first, the Court keyed it to the importance of the position held. ''There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. 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 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 governmental affairs.'' 123 But over time, this focus seems to have become diffused and the concept of ''public official'' has appeared to take on overtones of anyone holding public elective or appointive office. 124 Moreover, candidates for public office were subject to the Times rule and comment on their character or past conduct, public or private, insofar as it touches upon their fitness for office, is protected. 125
Thus, with respect to both public officials and candidates, a wide range of reporting about them is protected. Certainly, the conduct of official duties by public officials is subject to the widest scrutiny and criticism. 126 But the Court has held as well that criticism that reflects generally upon an official's integrity and honesty is protected. 127 Candidates for public office, the Court has said, place their whole lives before the public, and it is difficult to see what criticisms could not be related to their fitness. 128
For a time, the Court's decisional process threatened to expand the Times privilege so as to obliterate the distinction between private and public figures. First, the Court created a subcategory of ''public figure,'' which included those otherwise private individuals who have attained some prominence, either through their own efforts or because it was thrust upon them, with respect to a matter of public interest, or, in Chief Justice Warren's words, those persons who are ''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.'' 129 More recently, the Court has curtailed the definition of ''public figure'' by playing down the matter of public interest and emphasizing the voluntariness of the assumption of a role in public affairs that will make of one a ''public figure.'' 130
Second, in a fragmented ruling, the Court applied the Times standard to private citizens who had simply been involved in events of public interest, usually, though not invariably, not through their own choosing. 131 But, in Gertz v. Robert Welch, Inc. 132 the Court set off on a new path of limiting recovery for defamation by private persons. Henceforth, persons who are neither public officials nor public figures may recover for the publication of defamatory falsehoods so long as state defamation law establishes a standard higher than strict liability, such as negligence; damages may not be presumed, however, but must be proved, and punitive damages will be recoverable only upon the Times showing of ''actual malice.''
The Court's opinion by Justice Powell established competing constitutional considerations. On the one hand, imposition upon the press of liability for every misstatement would deter not only false speech but much truth as well; the possibility that the press might have to prove everything it prints would lead to self-censorship and the consequent deprivation of the public of its access to information. On the other hand, there is a legitimate state interest in compensating individuals for the harm inflicted on them by de famatory falsehoods. An individual's right to the protection of his own good name is, at bottom, but a reflection of our society's concept of the worth of the individual. Therefore, an accommodation must be reached. The Times rule had been a proper accommodation when public officials or public figures were concerned, inasmuch as by their own efforts they had brought themselves into the public eye, had created a need in the public for information about them, and had at the same time attained an ability to counter defamatory falsehoods published about them. Private individuals are not in the same position and need greater protection. ''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.'' 133 Some degree of fault must be shown, then.
Generally, juries may award substantial damages in tort for presumed injury to reputation merely upon a showing of publication. But this discretion of juries had the potential to inhibit the exercise of freedom of the press, and moreover permitted juries to penalize unpopular opinion through the awarding of damages. Therefore, defamation plaintiffs who do not prove actual malice--that is, knowledge of falsity or reckless disregard for the truth--will be limited to compensation for actual provable injuries, such as out-of-pocket loss, impairment of reputation and standing, personal humiliation, and mental anguish and suffering. A plaintiff who proves actual malice will be entitled as well to collect punitive damages. 134
Subsequent cases have revealed a trend toward narrowing the scope of the ''public figure'' concept. A socially prominent litigant in a particularly messy divorce controversy was held not to be such a person, 135 and a person convicted years before of contempt after failing to appear before a grand jury was similarly not a public figure even as to commentary with respect to his conviction. 136 Also not a public figure for purposes of allegedly defamatory comment about the value of his research was a scientist who sought and received federal grants for research, the results of which were published in scientific journals. 137 Public figures, the Court reiterated, are those who (1) occupy positions of such persuasive power and influence that they are deemed public figures for all purposes or (2) have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved, and are public figures with respect to comment on those issues. 138
Commentary about matters of ''public interest'' when it defames someone is apparently, after Firestone 139 and Gertz, to be protected to the degree that the person defamed is a public official or candidate for public office, public figure, or private figure. That there is a controversy, that there are matters that may be of ''public interest,'' is insufficient to make a private person a ''public figure'' for purposes of the standard of protection in defamation actions.
The Court has elaborated on the principles governing defamation actions brought by private figures. First, when a private plaintiff sues a media defendant for publication of information that is a matter of public concern--the Gertz situation, in other words--the burden is on the plaintiff to establish the falsity of the information. Thus, the Court held in Philadelphia Newspapers v. Hepps, 140 the common law rule that defamatory statements are presumptively false must give way to the First Amendment interest that true speech on matters of public concern not be inhibited. This means, as the dissenters pointed out, that a Gertz plaintiff must establish falsity in addition to establishing some degree of fault (e.g. negligence). 141 On the other hand, the Court held in Dun & Bradstreet v. Greenmoss Builders that the Gertz standard limiting award of presumed and punitive damages applies only in cases involving matters of public concern, and that the sale of credit reporting information to subscribers is not such a matter of public concern. 142 What significance, if any, is to be attributed to the fact that a media defendant rather than a private defendant has been sued is left unclear. The plurality in Dun & Bradstreet declined to follow the lower court's rationale that Gertz protections are unavailable to nonmedia defendants, and a majority of Justices were in agreement on that point. 143 But in Philadelphia Newspapers, the Court expressly reserved the issue of ''what standards would apply if the plaintiff sues a nonmedia defendant.'' 144
Satellite considerations besides the issue of who is covered by the Times privilege are of considerable importance. The use in the cases of the expression ''actual malice'' has been confusing in many respects, because it is in fact a concept distinct from the common law meaning of malice or the meanings common understanding might give to it. 145 Constitutional ''actual malice'' means that the defamation was published with knowledge that it was false or with reckless disregard of whether it was false. 146 Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered. 147 A defamation plaintiff under the Times or Gertz standard has the burden of proving by ''clear and convincing'' evidence, not merely by the preponderance of evidence standard ordinarily borne in civil cases, that the defendant acted with knowledge of falsity or with reckless disregard. 148 Moreover, the Court has held, a Gertz plaintiff has the burden of proving the actual falsity of the defamatory publication. 149 A plaintiff suing the press 150 for defamation under the Times or Gertz standards is not limited to attempting to prove his case without resort to discovery of the defendant's editorial processes in the establish ment of ''actual malice.'' 151 The state of mind of the defendant may be inquired into and the thoughts, opinions, and conclusions with respect to the material gathered and its review and handling are proper subjects of discovery. As with other areas of protection or qualified protection under the First Amendment (as well as some other constitutional provisions), appellate courts, and ultimately the Supreme Court, must independently review the findings below to ascertain that constitutional standards were met. 152
There had been some indications that statements of opinion, unlike assertions of fact, are absolutely protected, 153 but the Court held in Milkovich v. Lorain Journal Co. 154 that there is no constitutional distinction between fact and opinion, hence no ''wholesale defamation exemption'' for any statement that can be labeled ''opinion.'' 155 The issue instead is whether, regardless of the context in which a statement is uttered, it is sufficiently factual to be susceptible of being proved true or false. Thus, if statements of opinion may ''reasonably be interpreted as stating actual facts about an individual,'' 156 then the truthfulness of the factual assertions may be tested in a defamation action. There are sufficient protections for free public discourse already available in defamation law, the Court concluded, without creating ''an artificial dichotomy between 'opinion' and fact.'' 157
Substantial meaning is also the key to determining whether inexact quotations are defamatory. Journalistic conventions allow some alterations to correct grammar and syntax, but the Court in Masson v. New Yorker Magazine 158 refused to draw a distinction on that narrow basis. Instead, ''a deliberate alteration of words [in a quotation] does not equate with knowledge of falsity for purposes of [New York Times] unless the alteration results in a material change in the meaning conveyed by the statement.'' 159
[Footnote 66] The distinction was sharply drawn by Justice Harlan in Konigsberg v. State Bar of California, 366 U.S. 36, 49 -51 (1961): ''Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand certain forms of speech, or speech in certain contexts, have been considered outside the scope of constitutional protection. . . . On the other hand, general regulatory statutes not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the states to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.''
[Footnote 67] Police Dep't v. Mosley, 408 U.S. 92, 95 (1972). See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 208 -12 (1975); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Carey v. Brown, 447 U.S. 455 (1980); Metromedia v. City of San Diego, 453 U.S. 490 (1981) (plurality opinion); Widmar v. Vincent, 454 U.S. 263 (1981); Regan v. Time, Inc., 468 U.S. 641 (1984).
[Footnote 70] See, e.g., Simon & Schuster v. New York Crime Victims Bd., 112 S. Ct. 501 (1991).
[Footnote 72] Young v. American Mini Theatres, 427 U.S. 50, 63 -73 (1976) (plurality opinion); Smith v. United States, 431 U.S. 291, 317 -19 (1977) (Justice Stevens dissenting); Carey v. Population Services Int., 431 U.S. 678, 716 (1977) (Justice Stevens concurring in part and concurring in the judgment); FCC v. Pacifica Found., 438 U.S. 726, 744 -48 (1978) (plurality opinion); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 80 , 83 (1981) (Justice Stevens concurring in judgment); New York v. Ferber, 458 U.S. 747, 781 (1982) (Justice Stevens concurring in judgment); R. A. V. v. City of St. Paul, 112 S. Ct. 2538, 2564 (1992) (Justice Stevens concurring in the judgment).
[Footnote 74] In New York v. Ferber, 458 U.S. 747, 763 (1982), a majority of the Court joined an opinion quoting much of Justice Stevens' language in these cases, but the opinion rather clearly adopts the proposition that the disputed expression, child pornography, is not covered by the First Amendment, not that it is covered but subject to suppression because of its content. Id. at 764. And see id. at 781 (Justice Stevens concurring in judgment).
[Footnote 75] E.g., commercial speech, which is covered by the First Amendment but is less protected than other speech, is subject to content-based regulation. Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 568 -69 (1980). See also Rowan v. Post Office Dep't, 397 U.S. 728 (1970) (sexually-oriented, not necessarily obscene mailings); and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (nonobscene, erotic dancing).
[Footnote 80] Id. at 50, 55.
[Footnote 81] Id. at 55.
[Footnote 82] Id. at 53.
[Footnote 83] 112 S. Ct. 2538 (1992).
[Footnote 84] Id. at 2547.
[Footnote 85] Id. at 2543.
[Footnote 87] But see Burson v. Freeman, 112 S. Ct. 1846 (1992) (state law prohibiting the solicitation of votes and the display or distribution of campaign literature within 100 feet of a polling place upheld as applied to the traditional public forum of streets and sidewalks). The Burson plurality phrased the test not in terms of whether the law was ''narrowly tailored,'' but instead in terms of whether the law was ''necessary'' to serve compelling state interests. 112 S. Ct. at 1852, 1855.
[Footnote 88] Simon & Shuster v. New York Crime Victims Bd., 112 S. Ct. 501, 513 (1991) (concurring).
[Footnote 89] Burson v. Freeman, 112 S. Ct. 1846, 1859 (1992) (concurring).
[Footnote 90] Ch. 74, 1 Stat. 596, supra, p.1022, n.9. Note also that the 1918 amendment of the Espionage Act of 1917, ch. 75, 40 Stat. 553, reached ''language intended to bring the form of government of the United States . . . or the Constitution . . . or the flag . . . or the uniform of the Army or Navy into contempt, scorn, contumely, or disrepute.'' Cf. Abrams v. United States, 250 U.S. 616 (1919). For a brief history of seditious libel here and in Great Britain, see Z. Chafee, Free Speech in the United States 19-35, 497-516 (1941).
[Footnote 92] 380 U.S. 479, 492 -96 (1965). A number of state laws were struck down by three-judge district courts pursuant to the latitude prescribed by this case. E.g., Ware v. Nichols, 266 F. Supp. 564 (N.D. Miss. 1967) (criminal syndicalism law); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966) (insurrection statute); McSurely v. Ratliff, 282 F. Supp. 848 (E.D. Ky. 1967) (criminal syndicalism). This latitude was then circumscribed in cases attacking criminal syndicalism and criminal anarchy laws. Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 401 U.S. 66 (1971).
[Footnote 94] Stanford v. Texas, 379 U.S. 476 (1965). In United States v. United States District Court, 407 U.S. 297 (1972), a Government claim to be free to wiretap in national security cases was rejected on Fourth Amendment grounds in an opinion which called attention to the relevance of the First Amendment.
[Footnote 96] Id. at 573.
[Footnote 97] Id. at 571-72.
[Footnote 98] Cohen v. California, 403 U.S. 15, 20 (1971). Cohen's conviction for breach of peace, occasioned by his appearance in public with an ''offensive expletive'' lettered on his jacket, was reversed, in part because the words were not a personal insult and there was no evidence of audience objection.
[Footnote 99] The cases hold that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are ''fighting words'' that do have a direct tendency to cause acts of violence by the person to whom they are directed. Gooding v. Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416 U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of Cincinnati, 416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924 (1974); and see Eaton v. City of Tulsa, 416 U.S. 697 (1974).
[Footnote 100] Feiner v. New York, 340 U.S. 315 (1951). See also Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which the Court held that a court could enjoin peaceful picketing because violence occurring at the same time against the businesses picketed could have created an atmosphere in which even peaceful, otherwise protected picketing could be illegally coercive. But compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
[Footnote 101] The principle actually predates Feiner. See Cantwell v. Connecticut, 310 U.S. 296 (1940); Terminiello v. Chicago, 337 U.S. 1 (1949). For subsequent application, see Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). Significant is Justice Harlan's statement of the principle reflected by Feiner. ''Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951).'' Cohen v. California, 403 U.S. 15, 20 (1970).
[Footnote 102] Cohen v. California, 403 U.S. 15 (1971); Bachellar v. Maryland, 397 U.S. 564 (1970); Street v. New York, 394 U.S. 576 (1969); Schacht v. United States, 398 U.S. 58 (1970); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959); Stromberg v. California, 283 U.S. 359 (1931).
[Footnote 107] Id. at 265-66.
[Footnote 108] Id. at 266.
[Footnote 109] 376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp. 676 (N.D.Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff'd, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978) (Justices Blackmun and Rehnquist dissenting on basis that Court should review case that is in ''some tension'' with Beauharnais). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval).
[Footnote 110] 112 S. Ct. at 2543 (emphasis original).
[Footnote 111] Id. at 2547. On the other hand, the First Amendment does permit enhancement of a criminal penalty based on the defendant's motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 2199. R.A.V. was distinguished as involving a limitation on ''speech'' rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (e.g., they are more likely to provoke retaliatory crimes). Id. at 2201. See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 Sup. Ct. Rev. 1.
[Footnote 113] Id. at 269. Justices Black, Douglas, and Goldberg, concurring, would have held libel laws per se unconstitutional. Id. at 293, 297.
[Footnote 114] Id. at 269, 270.
[Footnote 115] Id. at 271.
[Footnote 116] Id. at 271-72, 278-79. Of course, the substantial truth of an utterance is ordinarily a defense to defamation. See Masson v. New Yorker Magazine, 111 S. Ct. 2419, 2433 (1991).
[Footnote 117] Id. at 272-73.
[Footnote 118] Id. at 273. See supra, p.1022 n.13.
[Footnote 119] Id. at 279-80. The same standard applies for defamation contained in petitions to the government, the Court having rejected the argument that the petition clause requires absolute immunity. McDonald v. Smith, 472 U.S. 479 (1985).
[Footnote 124] Id. (supervisor of a county recreation area employed by and responsible to the county commissioners may be public official within Times rule). See Garrison v. Louisiana, 379 U.S. 64 (1964) (elected municipal judges); Henry v. Collins, 380 U.S. 356 (1965) (county attorney and chief of police); St. Amant v. Thompson, 390 U.S. 727 (1968) (deputy sheriff); Greenbelt Cooperative Pub. Ass'n v. Bresler, 398 U.S. 6 (1970) (state legislator who was major real estate developer in area); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police captain). The categorization does not, however, include all government employees. Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979).
[Footnote 127] Garrison v. Louisiana, 379 U.S. 64 (1964), involved charges that judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to ''racketeer influences.'' The Court rejected an attempted distinction that these criticisms were not of the manner in which the judges conducted their courts but were personal attacks upon their integrity and honesty. ''Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. . . . The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character.'' Id. at 76-77.
[Footnote 128] In Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 -75 (1971), the Court said: ''The principal activity of a candidate in our political system, his 'office,' so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of 'purely private' concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry 'Foul' when an opponent or an industrious reporter attempts to demonstrate the contrary. . . . Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of reputations is the staple of election campaigns and damage to reputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may have full recourse is a question we need not decide in this case.''
[Footnote 129] Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Chief Justice Warren concurring in the result). Curtis involved a college football coach, and Associated Press v. Walker, decided in the same opinion, involved a retired general active in certain political causes. The suits arose from reporting that alleged, respectively, the fixing of a football game and the leading of a violent crowd in opposition to enforcement of a desegregation decree. The Court was extremely divided, but the rule that emerged was largely the one developed in the Chief Justice's opinion. Essentially, four Justices opposed application of the Times standard to ''public figures,'' although they would have imposed a lesser but constitutionally-based burden on public figure plaintiffs. Id. at 133 (plurality opinion of Justices Harlan, Clark, Stewart, and Fortas). Three Justices applied Times, id. at 162 (Chief Justice Warren), and 172 (Justices Brennan and White). Two Justices would have applied absolute immunity. Id. at 170 (Justices Black and Douglas). See also Greenbelt Cooperative Pub. Ass'n v. Bresler, 398 U.S. 6 (1970).
[Footnote 130] Public figures ''[f]or the most part [are] those who . . . have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust 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. 323, 345 (1974).
[Footnote 133] Id. at 347.
[Footnote 134] Id. at 348-50. Justice Brennan would have adhered to Rosenbloom, id. at 361, while Justice White thought the Court went too far in constitutionalizing the law of defamation. Id. at 369.
[Footnote 140] 475 U.S. 767 (1986). Justice O'Connor's opinion of the Court was joined by Justices Brennan, Marshall, Blackmun, and Powell; Justice Stevens' dissent was joined by Chief Justice Burger and by Justices White and Rehnquist.
[Footnote 142] 472 U.S. 749 (1985). Justice Powell wrote a plurality opinion joined by Justices Rehnquist and O'Connor, and Chief Justice Burger and Justice White, both of whom had dissented in Gertz, added brief concurring opinions agreeing that the Gertz standard should not apply to credit reporting. Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissented, arguing that Gertz had not been limited to matters of public concern, and should not be extended to do so.
[Footnote 147] St. Amant v. Thompson, 390 U.S. 727, 730 -33 (1968); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967). A finding of ''highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers'' is alone insufficient to establish actual malice. Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989) (nonetheless upholding the lower court's finding of actual malice based on the ''entire record'').
[Footnote 148] Gertz v. Robert Welch, Inc., 418 U.S. 323, 331 -32 (1974); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 83 (1967). See New York Times Co. v. Sullivan, 376 U.S. 254, 285 -86 (1964) (''convincing clarity''). A corollary is that the issue on motion for summary judgment in a New York Times case is whether the evidence is such that a reasonable jury might find that actual malice has been shown with convincing clarity. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
[Footnote 150] Because the defendants in these cases have typically been media defendants (but see Garrison v. Louisiana, 379 U.S. 64 (1964); Henry v. Collins, 380 U.S. 356 (1965)), and because of the language in the Court's opinions, some have argued that only media defendants are protected under the press clause and individuals and others are not protected by the speech clause in defamation actions. See supra, pp.1026-29.
[Footnote 152] New York Times Co. v. Sullivan, 376 U.S. 254, 284 -86 (1964). See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933 -34 (1982). Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 688 (1989) (''the reviewing court must consider the factual record in full''); Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984) (the ''clearly erroneous'' standard of Federal Rule of Civil Procedure 52(a) must be subordinated to this constitutional principle).
[Footnote 153] See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (''under the First Amendment there is no such thing as a false idea''); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6 (1970) (holding protected the accurate reporting of a public meeting in which a particular position was characterized as ''blackmail''); Letter Carriers v. Austin, 418 U.S. 264 (1974) (holding protected a union newspaper's use of epithet ''scab'').
[Footnote 155] Id. at 18.
[Footnote 156] Id. at 20. In Milkovich the Court held to be actionable assertions and implications in a newspaper sports column that a high school wrestling coach had committed perjury in testifying about a fight involving his team.
[Footnote 157] Id. at 19.
[Footnote 158] 111 S. Ct. 2419 (1991).
[Footnote 159] 111 S. Ct. at 2433.