Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974), argued 14 Nov. 1973, decided 25 June 1974 by vote of 5 to 4; Powell for the Court, Blackmun concurring, Burger, Douglas, Brennan, and White in dissent. Gertz v. Robert Welch, Inc. arose in 1969 when American Opinion magazine, a publication of the John Birch Society, attacked Elmer Gertz, an attorney who was representing clients in a suit for civil damages against a policeman who had earlier been convicted of second-degree murder. American Opinion falsely stated that Gertz had been responsible for framing the policemen in his murder trial, that Gertz had a criminal record, and that he was a “Leninist” and a “Communist-fronter.” Gertz sued for defamation.

In 1964 the Supreme Court had held in *New York Times Co. v. Sullivan that plaintiffs who were public officials could not recover damages for defamation unless they could demonstrate that the defamation had been published with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (pp. 279–280). In the aftermath of New York Times there was considerable uncertainty about the range of application of this revolutionary rule of actual malice. The Court’s opinion in Gertz (p. 390) was to resolve this uncertainty by establishing a doctrinal structure that would remain stable for the next decade.

The Supreme Court held that the *First Amendment required public figures and public officials to demonstrate *actual malice but that all other *libel plaintiffs, like Elmer Gertz, need only prove some degree of “fault.” Gertz also held that the First Amendment prohibited the recovery of punitive or presumptive damages in the absence of actual malice, although it specifically held that mental anguish was a compensable form of “actual” damage.

An important weakness of Gertz is that it never explained why the Constitution should preempt *common-law defamation doctrine as applied to all cases involving private plaintiffs. In 1985, in Dun & Bradstreet, Inc. v. Greenmoss Builders, the Court began to cut back the application of the Gertz rules so that they would only pertain to defamations which, although about private plaintiffs, were also about matters of “public concern.”

See also speech and the press.

Robert C. Post