Gertz v. Robert Welch, Inc.: New Contours on the Libel Landscape–A Pyrrhic Victory for Plaintiffs

Introduction

Eleven years ago, in New York Times v. Sullivan, the United States Supreme Court formulated a constitutional privilege of fair comment in the law of libel. Citing a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” the Court held that absent a showing of actual malice, libelous statements directed against a public official relating to his official conduct were protected by the first amendment. Three years later, recognizing that public figures often play as important roles in the resolution of public questions as do public officials, the Court extended the privilege to embrace public figures. Finally, in Rosenbloom v. Metromedia, Inc., the Court, again emphasizing the importance of unencumbered public debate, held that the media would be protected from nonmalicious libel suits brought by private persons if such persons were embroiled in events of genuine public interest.

The Supreme Court abruptly withdrew this last extension of the privilege in Gertz v. Robert Welch, Inc., a case in which a plurality of the Court acknowledged that a private individual has significant personal and economic in-terests in maintaining an undamaged reputation and that society’s interest in freedom of speech must be sensitive to those individual interests.

Speaking for a plurality of four, Justice Powell attempted the delicate task of renovating the law of libel to give increased protection to the individual’s reputation while simultaneously preventing increased pressure of self-censorship upon the press. Abandoning the approach taken in Rosenbloom, in which the Court gave constitutional protection to issues of public interest, the Court in Gertz adopted an approach in which constitutional protection depended upon the status of the individual. The unfortunate result of adopting this view was that, while it became easier for the plaintiff to recover than under Rosenbloom, the Court’s retreat from Rosenbloom exposed the press togreater liability in the discussion of public affairs. To compensate for the possible dangers of self-censorship, the Court greatly restricted the damages a plaintiff might recover. These changes in the law of damages, however, so substantially limited recovery that Gertz is anything but a victory for the plaintiff.

This Comment will analyze the Court’s new doctrinal approach and Gertz’s three far-reaching results: the abandonment of strict liability in libel, the requirement that plaintiffs prove actual damages, and the proscription on the award of punitive damages except upon proof of malice. Finally, this Comment will suggest a modification of the Rosenbloom model which it is believed is better tailored to protecting both the individual’s reputation and society’s interest in a free press.

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