Libel Liability: Test for Public Figures

In New York Times Co. v. Sullivan four years ago, the Supreme Court laid down tough constitutional limitations on libel recoveries by public officials. "A defamatory falsehood relating to his official conduct," ruled the court, must be "made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." So much for public officials. But what of persons very much in the public eye, though not public officials? They too play an important part in shaping the course and creeds of the country. Should not the press be permitted to write about and discuss these "public figures" with the same freedom that it does public officials?

Strategy Revealed. Last week the court attempted to answer that question in deciding the separate libel cases of former University of Georgia Athletic Director Wally Butts and former Army Major General Edwin Walker. Both cases had created quite a stir from the start.

In 1963, during its era of "sophisticated muckraking," Curtis Publishing's Saturday Evening Post reported that Butts had revealed strategy secrets to Alabama Coach Paul ("Bear") Bryant, whose Crimson Tide thereupon rolled over Georgia in their 1962 football game, 35-0. Butts sued the Post and won a judgment of $3,060,000, later reduced to $460,000 by the trial judge.

Walker's case stemmed from his presence on the University of Mississippi campus during 1962 riots over the admission of Negro James Meredith. During those riots, the Associated Press reported, Walker had "assumed control of the crowd" and "led a charge of students against federal marshals." Alleging that that was tantamount to accusing him of inciting to riot (on which charge a federal grand jury refused to indict him), Walker sued A.P., won a judgment of $500,000.

In last week's review, the Supreme Court upheld Butts's libel judgment, rejected Walker's. More important, it began to develop tests for determining when public figures can recover for libel, and when they cannot.

Accepted Standards. In Walker's case, the court was unanimous for reversal, although divided over the reason. Justice Black, joined by Douglas, argued once again that "the First Amendment was intended to leave the press free from the harassment of libel judgments." Chief Justice Warren and Justices Brennan and White held that public figures must also prove "actual malice" in accordance with the Times formula, which Walker had not done.

Speaking for Clark, Fortas and Stewart, Justice Harlan applied a diluted Times standard. He pointed out that the riot news "required immediate dissemination." There was little reason for A.P. higher-ups to question the dispatch. The reporter was apparently reliable. His report was internally consistent and, added Harlan, "would not have seemed unreasonable" to a person familiar with such prior Walker radio statements as one contending that the people had "talked, listened and been pushed around far too much . . ." (Harlan delicately declined to finish quoting Walker, who had added that the pushing was being done by "the anti-Christ Supreme Court.") "Nothing in this series of events," said Harlan, "gives the slightest hint of a severe departure from accepted publishing standards."

To Harlan and his three colleagues, quite the opposite was true in the Butts case. Harlan pointed out that the Post had faced no deadline in preparing the "fix" article. Yet despite a denial from Butts, the magazine had taken not even the most elementary steps to verify its story. The original source had been an Atlanta insurance salesman and convict ed check forger, George Burnett, who was accidentally plugged into a phone call between Butts and Bryant. No Post reporter even looked at Burnett's notes of the conversation before the article was published. Nor did anyone interview a man who was in the room with Burnett during the call. No attempt was made to view the game film, or to see if Alabama had changed its game plan, or to check the technical aspects of the story with a football expert. "In short," said Harlan, "the evidence is ample to support a finding of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers."

Obscenity Quagmire. The four justices therefore upheld Butts. They were joined by Chief Justice Warren, who found that the Post, unlike A.P., had been guilty of "actual malice." To dissenting Justice Black, any test of "unreasonable conduct" on the part of publishers, as promulgated by Harlan, seemed a promise of new problems. "If this precedent is followed," warned Black, "it means that we must in all libel cases hereafter weigh the facts and hold that all papers and magazines guilty of gross writing or reporting are constitutionally liable, while they are not, if the quality of the reporting is approved by a majority of us. It strikes me that the court is getting itself in the same quagmire in the field of libel in which it is now helplessly struggling in the field of obscenity."

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