Prior to 1964, it was widely assumed that state tort law was completely outside of First Amendment protection.  With respect to defamation law in particular, the old rule appeared to be that the Constitution extends no protection to false statements.

All this changed with the landmark case of New York Times v Sullivan, a case whose importance it would be hard to overestimate.  Had the case been decided against the Times, it almost certainly would have produced a more timid press and led to decisions to restrict the circulation of previously national magazines and newspapers to states unlikely to spawn financially-threatening defamation suits.  In New York Times v Sullivan a unanimous Supreme Court overturns an Alabama jury award of $500,000 entered against the Times for publication of a political advertisement that allegedly defamed Montgomery County Commissioner L. B. Sullivan.  At least with respect to criticism of the official conduct of public officials it is necessary, the Court said, for a defamation plaintiff to establish that a false statement has been published with either knowledge of its falsity, or with reckless disregard as to its truth or falsity.  This is the so-called "actual malice" standard.  In subsequent decisions, the Court extended the actual malice standard to cases involving public figures as well as public officials, reasoning that public figures assume a greater risk that they will be the subject of public scrutiny and have the means available to respond effectively to what they consider false statements about them.

Time v Hill considered whether the "actual malice" standard should also apply to a false light privacy claim brought by the Hill family, who argued that they were falsely presented in a LIFE magazine story describing a play based on a crime in which they were the victims.  Richard M. Nixon (between runs for the presidency) argued for the Hill family that as victims involuntarily thrown into a newsworthy event they should not have to meet the high burden of an "actual malice" test.  The Court, however, disagreed, 5 to 4.  

Gertz v Welch considers three important questions: (1) whether the full protection of the "actual malice" standard should extend to comments about private persons, (2) if not, whether the Constitution might at least limit the sorts of damages a private individual might collect for statements on matters of public concern made without actual malice, and (3) if the actual malice standard is not extended to private individuals, how the line should be drawn between "public figures" and "private figures."  The Supreme Court concluded that Elmer Gertz, the plaintiff in the defamation action and a leading Chicago civil rights attorney, was not a public figure for constitutional purposes.  Moreover, the Court said, as a private person, Gertz need only show that a defamatory falsehood was made negligently, not that it was made with actual malice.  Finally--in what turned out to be a major victory for the media--the Court ruled that in the absence of a showing of actual malice, private plaintiffs are limited by the First Amendment--at least with respect to comments about a matter of public concern-- to recovery only for actual damages, and not for punitive or presumed damages.

In its 1985 decision in Dun & Bradstreet v Greeenmoss Builders, the Court provided its answer to the last major constitutional question in the defamation area: what damages are available to a private person (or corporation, in this case) when the false statement of fact does not relate to a matter of public concern?   Distinguishing Gertz, which did involve false statements relating to a matter of public concern, the Court (5 to 4) found that Greenmoss Builders was entitled to collect punitive damages when a credit-rating report falsely and negligently stated that the company had filed a petition for bankruptcy.  The Court concluded that the First Amendment interest in protecting false statements was substantially less when the statements did not relate to matters of public concern.  Of course, the decision in Dun & Bradstreet has the effect of requiring courts to draw a sometimes difficult line between statements relating and not relating to matters of public concern.

[see DEFAMATION CHART]

Hugo Zacchini ("The Human Cannonball") was the plaintiff in Zacchini v Scripps-Howard.  Zacchini sued Scripps-Howard, the owner of an Ohio television station, when--over Zacchini's objections--it filmed, and then broadcast on the evening news, Zacchini's act of being shot out of a cannon at a county fair.  The Supreme Court sided with Hugo, ruling 5 to 4 that the First Amendment is not offended when liability (using a "right-of-publicity" theory) is imposed for broadcasting an entertainer's "entire act."

Rev. Jerry Falwell, the plaintiff in Hustler v Falwell, going down a waterslide in 1987.

LINK TO FALWELL V FLYNT TRIAL SITE


Woody Harrelson played Hustler publisher Larry Flynt in a movie about the Falwell v Hustler case.

Finally, Cohen v Cowles Media considered whether the First Amendment protects a media defendant who first promises a source confidentiality, then discloses the name of the source in a newsworthy story.  The Court, 5 to 4, ruled that when liability is based on a generally applicable law (here, the common law as it relates to promissory estoppel) the First Amendment is not violated--even when the disclosure of the source was accurate and newsworthy.