Indiana Law Review


Indiana Lair Reviei^
Volume 20 1987 Number 4

Dun & Bradstreet, Inc. v, Greenmoss Builders, Inc.,
Philadelphia Newspapers, Inc. v. Hepps,

and Speech on Matters of Public Concern:

New Directions in First Amendment Defamation Law

Don Lewis*

I. Introduction

Since the United States Supreme Court subjected the common law
of defamation to the constraints of the first amendment in New York
Times Co. v. Sullivan,^ the Court's decisions in the area have been

marked by a continual process of redefinition of the scope and the

strength of the
*

'constitutional privilege to defame."^ In New York
Times, the Court held that a public official could not recover damages

in a libel action brought against a critic of his official conduct unless

he proved, by clear and convincing evidence, "that the statement was

made with 'actual malice'—that is, with knowledge that it was false or

Associate, Verner, Liipfert, Bernhard, McPherson & Hand, Washington, D.C.
'376 U.S. 254 (1964). "The Court's consistent view prior to New York Times Co.

V. Sullivan . . . was that defamatory utterances were wholly unprotected by the First

Amendment." Gertz v. Robert Welch, Inc., 418 U.S. 323, 384-85 (1974) (White, J.,
dissenting). See Roth v. United States, 354 U.S. 476 (1957); Beauharnais v. Illinois, 343

U.S. 250 (1952); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Near v. Minnesota,
283 U.S. 697 (1931).

'Keeton, Defamation and Freedom of the Press, 54 Tex. L. Rev. 1221, 1226 (1976).
The central issue in each of the Court's decisions has been the proper balance to be

struck between a state's interest in protecting the reputations of its citizens and the freedom

of speech guaranteed by the first amendment. See Gertz v. Robert Welch, Inc., 418 U.S.

323, 325 (1974). The resolution of this question, albeit without the first amendment
consideration, was not unknown to the common law. See, e.g., Kalven, The New York
Times Case: A Note on "The Central Meaning of the First Amendment", 1964 Sup. Ct.
Rev. 191, 215; W. Keeton, D. Dobbs, R. Keeton & D. Owten, Prosser and Keeton
ON THE Law^ of Torts § 111, 772 (5th Ed. 1984) (explanation for anomalies in law of
defamation "is in part one of historical accident and survival, in part one of the conflict

of opposing ideas of policy in which our traditional notions of freedom of expression

have collided violently with sympathy for the victim traduced and indignation at the

maligning tongue").

767



768 INDIANA LAW REVIEW [Vol. 20:767

with reckless disregard of whether it was false or not."^ Three years

later, in Curtis Publishing Co. v. Butts,'^ the Court extended the New
York Times privilege to cases involving defamation of, "pubUc figures".^
A plurality of the Court further extended the privilege in Rosenbloom
V, Metromedia, Inc.,^ to all defamatory speech relating to matters of

"public or general concern",^ regardless of whether the plaintiff was a

private figure or a public figure. In Gertz v. Robert Welch, Inc.,^ the

Court rejected the Rosenbloom subject matter test and held that a
"private figure" may constitutionally recover actual damages upon proof
of the defendant's negligence without regard to the nature of the speech

at issue.

^

In two recent decisions the Court has again attempted to accom-

modate the conflicting interests of reputation and freedom of speech,
and in doing so has returned to first amendment defamation law a
consideration seemingly discarded in Gertz: whether the speech at issue

is "of pubhc concern". The cases are Dun & Bradstreet, Inc. v. Green-
moss Builders, Inc.^^ and Philadelphia Newspapers, Inc. v. Hepps.^^

II. The Dun & Bradstreet Case

In Dun & Bradstreet, a construction contractor sued Dun & Brad-
street, a credit reporting agency, for falsely reporting that the contractor

had filed for bankruptcy. After trial in a Vermont state court, a jury
returned a verdict awarding the contractor $50,000 in compensatory or

presumed damages, and $300,000 in punitive damages. The trial judge,
however, granted a new trial, based on his doubts as to the propriety
of his charge.*^ The Supreme Court of Vermont reinstated the verdict,
based on its view that credit reporting firms such as Dun & Bradstreet
are not "the type of media worthy of First Amendment protection as
contemplated by New York Times and its progeny,"'^ and that the Gertz

^New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
^388 U.S. 130 (1967).

'See Gertz v. Robert Welch, Inc., 418 U.S. 323, 336 n.7 (1974) (Butts stands for

the principle that the New York Times test reaches both public officials and public figures).
^403 U.S. 29 (1971).

'Id. at 44.

HIS U.S. 323 (1974).
'The Court, however, held that presumed and punitive damages were not allowed,

"at least when liability is not based on a showing of knowledge of falsity or reckless
disregard for the truth." 418 U.S. at 350. See infra note 25.

'°472 U.S. 749 (1985).

"106 S. Ct. 1558 (1986).

'^Dun & Bradstreet argued that the charge permitted the jury to award presumed
and punitive damages on less than a finding of knowledge of falsity or reckless disregard

for the truth, and that the charge was therefore contrary to the rule established in Gertz.

All U.S. at 752.

"143 Vt. 66, 73-74, 461 A.2d 414, 417-18 (1983).



1987] NEW DIRECTIONS 769

Standard of proof regarding presumed and punitive damages was therefore
inapplicable.

The United States Supreme Court affirmed the result reached by the

Vermont Supreme Court, but not its reasoning. Instead, the Court ig-

nored the media/non-media distinction drawn by the Vermont Supreme

Court"* and held that the Gertz limitation on the recovery of presumed

and punitive damages to only those plaintiffs proving New York Times
''malice" does not apply "when the defamatory statements do not in-
volve matters of public concern.'"^

Writing for a three-member plurality,*^ Justice Powell reached this

conclusion by balancing the state's interest in compensating injury to

reputation with the first amendment's interest in protecting freedom of

speech. In Gertz, this balancing process resulted in a holding that a

private plaintiff need only show negligence to recover actual damages.

The standard of proof approved in Gertz followed from the Court's

perception that a state has an increased need to protect the reputation

of private plaintiffs who have not "assumed the risk" of defamation
by entering the pubhc arena and who have limited ability to rebut false
charges against them; the disallowance of presumed or punitive damages

upon a mere showing of negligence was based on the perceived need
to control "the discretion of juries to award damages where there is

no loss"^^ and on the view that presumed and punitive damages are

not proper compensation for the actual injury to reputation with which

Gertz was concerned.'^ Presumed damages, thought by the Court to

'"After hearing the initial arguments, which addressed the propriety of the media/

non-media distinction, the Court ordered the parties to address the additional question

whether "the constitutional rule of New York Times and Gertz with respect to presumed
and punitive damages should apply where the speech is of a commercial or economic

nature." 468 U.S. 1214 (1984). See The Supreme Court, 1984 Term, 99 Harv. L. Rev.

1, 213-14 n.l4 (1985).

"472 U.S. at 763.

'^The opinion was joined by Justices Rehnquist and O'Connor.

>M18 U.S. at 349.

'^The state's interest. Justice Powell wrote, "extends no further than compensation

for actual injury." 418 U.S. at 349. The definition of "actual injury" in Gertz, however,

was not suited to the task of controlHng jury discretion and ensuring that only damage

to an individual's reputation would be compensated; the Court included "personal hu-

miliation . . . and mental anguish and suffering" in its hst of compensable actual injuries.

Id. at 350. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 367 (Brennan, J., dissenting)

(Court's definition in Gertz of actual injury "inevitably allow[s] a jury bent on punishing

expression of unpopular views a formidable weapon for doing so"); Anderson, Reputation,

Compensation, and Proof, 25 Wm. & Mary L. Rev. 747, 756 (1984). Indeed, in Time,
Inc. V. Firestone, 424 U.S. 448 (1976), the Court upheld an award of damages in a case

in which the plaintiff had offered no proof of damaged reputation whatsoever, Justice

Rehnquist writing:

Petitioner's theory seems to be that the only compensable injury in a defamation

action is that which may be done to one's reputation, and that claims not
predicated upon such injury are by definition not actions for defamation. But

Florida has obviously decided to permit recovery for other injuries without regard



770 INDIANA LAW REVIEW [Vol. 20:767

allow gratuitous awards of money damages far in excess of any actual
injury,'^ and punitive damages, characterized by the Court as "wholly

irrelevant" to a state's interest in compensating injury to one's repu-

tation, ^^ were not allowed, "at least when liability is not based on a
showing of knowledge of falsity or reckless disregard for the truth. "^'

In Dun & Bradstreet, however. Justice Powell's application of the
balancing process resulted in a different outcome. Since Greenmoss

Builders, Hke Elmer Gertz, was a "private figure," the state's interest

in protecting the reputation of the plaintiff was identical to the state's

interest in GertzP^ But since the speech at issue in Dun & Bradstreet
was not of public concern,^^ the first amendment interest was "less

to measuring the effect the falsehood may have had upon a plaintiff's reputation.
This does not transform the action into something other than an action for

defamation as that term is meant in Gertz. In that opinion we made it clear

that States could base awards on elements other than injury to reputation,

specifically listing 'personal humiliation, and mental anguish and suffering' as

examples of injuries which might be compensated consistently with the Consti-

tution upon a showing of fault. Because respondent has decided to forgo recovery

for injury to her reputation, she is not prevented from obtaining compensation

for such other damages that a defamatory falsehood may have caused her.
424 U.S. at 460. See Green, Political Freedom of the Press and the Libel Problem, 56

Tex. L. Rev. 341, 362-64 (1978); Eaton, The American Law of Defamation Through
Gertz V. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L. Rev. 1349,
1437-39 (1975).

'M18 U.S. at 349.

2°/ar. at 350.

^'Id. at 349.

"472 U.S. at 757.

^Ud. at 761-63. One of the reasons given by Justice Powell for giving reduced protection

for the speech at issue in Dun & Bradstreet was the fact that "the speech is wholly false
and clearly damaging to the victim's business reputation." 472 U.S. at 762. This sort

of reasoning comes close to that about which Justice Powell warned in Gertz: "It would

undermine the rule of [New York Times] to permit the actual falsity of a statement to

determine whether or not its publisher is entitled to the benefit of the [New York Times

'malice'] rule." 418 U.S. at 331 n.4 (quoting Gertz v. Robert Welch, Inc., 471 F.2d 801,

806 (1972)). See New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) (rejecting
"any test of truth" as a requirement for first amendment protection); Wright, Defamation,

Privacy, and the Public's Right to Know: A National Problem and a New Approach, 46
Tex. L. Rev. 630, 634-35 (1968):

All too frequently a court's first step when presented with a defamation or

invasion of privacy case is to determine whether the publication in question is

true or false. If it is false, the court seems to find the balancing process

facilitated, with the remainder of the analysis following as a matter of course.

At the heart of this approach is the view that truth is more deserving of

protection than falsehood since a lie has no "socially redeeming value"; unlike

a true statement, a false one contributes nothing — it may not only lead the
hearer astray, but may also retard development of the greater truth ....

. . . This approach, however, runs afoul of the underlying premises of the first

amendment. That amendment affirms the high value placed by the founding

fathers on free and unfettered discussion. Yet discussion will surely be inhibited



1987] NEW DIRECTIONS 111

important than the one weighed in Gertz''^^ As a result, the Court held

that "the state interest adequately supports awards of presumed and

punitive damages—even absent a showing of 'actual malice.' "^^

if the speaker must run the risk that Habihty will ensue if his statements are

subjected to judicial scrutiny .... Consider how much greater this deterrent
will be if the speaker is addressing himself to an area in which there is no

agreement on what is the 'truth.'

^M72 U.S. at 758, This determination, of course, implies that the speech involved

in Gertz was speech of public concern; similarly, in Philadelphia Newspapers Justice

O'Connor expressed the view that the speech at issue in Gertz was of public concern.

106 S.Ct. at 1563. In Gertz, however, Justice Powell expressly refused to classify the

speech at issue in such terms. 418 U.S. 323, 346 (1974).

"472 U.S. at 761. The argument advanced by Justice Powell in reaching this

conclusion is not completely persuasive. Justice Powell wrote in Dun & Bradstreet that
"[i]n Gertz, we found that the state interest in awarding presumed and punitive damages

was not 'substantial' in view of their effect on speech at the core of First Amendment
concern." 472 U.S. at 760. It seems relatively clear, however, that Gertz described as

not of substantial state concern the awarding of presumed damages. See 418 U.S. at 349-

50. Punitive damages, on the other hand, were described in Gertz as being "wholly

irrelevant" to a state's interest in redressing injuries to the reputations of its citizens. Id.

at 350. And since Justice Powell had conceded that the state's interest was identical in
both cases, it is hard to see how punitive damages were not proper in Gertz but were
in Dun & Bradstreet; as Justice Brennan wrote in dissent, "[w]hat was 'irrelevant' in
Gertz must still be irrelevant . . . ." 472 U.S. at 794.

Justice Powell's response to Justice Brennan's point was the following:

[T]he dissent finds language in Gertz that, it believes, shows the State's interest

to be 'irrelevant.' ... It is then an easy step for the dissent to say that the

State's interest is outweighed by even the reduced First Amendment interest in
private speech. Gertz, however, did not say that the state interest was 'irrelevant'

in absolute terms. Indeed, such a statement is belied by Gertz itself, for it held

that presumed and punitive damages were available under some circumstan-

ces. .. . Rather, what the Gertz language indicates is that the State's interest

is not. substantial relative to the First Amendment interest in public speech. This
language is thus irrelevant to today's decision.

Id. at 76 i n.7 (emphasis in original).

To this two responses can be made: first, that Gertz did not expressly allow recovery
of presumed and punitive damages but simply did not rule them out, see 418 U.S. at

349; Note, Punitive Damages and Libel Law, 98 Harv. L. Rev. 847 n.4 (1985), and
second, that the retention in Gertz of the possibility of awarding punitive damages, in

the context of a decision in which it was stated that the state interest in defamation law

"extends no further than compensation for actual injury," 418 U.S. at 349, and in which

it was recognized that punitive damages "are not compensation for injury," id. at 350,

reflects a degree of confusion, reference to which may not be too instructive. It should
be noted that Justice Rehnquist, writing for the Court in Keeton v. Hustler Magazine,

465 U.S. 770 (1984), expressed the view that "[fjalse statements of fact harm both the

subject of the falsehood and the readers of the statement," and therefore a state "may
rightly employ its libel laws to discourage the deception of its citizens." Id. at 776

(emphasis in original). No such view, however, was expressed in Gertz. See L. Tribe,
American Constitutional Law § 12-13, 643 (1978) {"'Gertz Court was explicit in saying
that the only legitimate state interest underlying the law of hbel is the compensation of

individuals for harm to their reputational interest").



772 INDIANA LAW REVIEW [Vol. 20:767

In focusing in Dun & Bradstreet on the nature of the speech at issue,
Justice Powell appears to have disregarded two concerns he raised in

Gertz. First, Justice Powell noted the "difficulty" that would be oc-

casioned by "forcing state and federal judges to decide on an ad hoc

basis which pubhcations address issues of 'general or public interest'

and which do not . . . ."^^ Second, he expressed doubt as to the "wisdom
of committing this task to the conscience of judges."^' Justice Powell

stated in Dun & Bradstreet that the Court in Gertz held only that "the
First Amendment restricted the damages that a private individual could
obtain from a publisher for a libel that involved a matter of public con-

cern."^* It is difficult, however, to reconcile such a holding with Justice

Powell's strong disapproval in Gertz of any judicial attempt to determine

the nature of the speech at issue in a defamation action.^' Indeed, refer-

ring to Gertz in Cox Broadcasting Corp. v. Cohn,^^ Justice Powell wrote
of "[t]he Court's abandonment of the '[matter] of general or pubUc in-

terest' standard as the determinative factor for deciding whether to apply

the New York Times malice standard to defamation litigation brought
by private individuals."^' Additionally, Justice Rehnquist, who joined
Justice Powell's opinion in Dun & Bradstreet, wrote in Time, Inc. v.
Firestone^^ that the Court in Gertz had "eschew[ed] a subject matter

test for one focusing upon the character of the defamation plaintiff.""

M18 U.S. at 346.
^'Id.

"472 U.S. at 751.

^^This apparent inconsistency was noted in the concurring opinion of Justice White,

who wrote: "I had thought that the decision in Gertz was intended to reach cases that
involve any false statements of fact injurious to reputation . . , whether or not [the

statement] implicates a matter of pubHc importance," 472 U.S. at 772, and in the

dissenting opinion, wherein Justice Brennan wrote: "One searches Gertz in vain for a
single word to support the proposition that limits on presumed and punitive damages

obtained only when speech involved matters of public concern, Gertz could not have been

grounded in such a premise. Distrust of placing in the courts the power to decide what

speech was of public concern was precisely the rationale Gertz offered for rejecting the

Rosenbloom plurality approach." Id. at 785 n.ll.
'H20 U.S. 469 (1975).

^^Id. at 498 n.2 (Powell, J., concurring) (quoting Gertz v. Robert Welch, Inc., 418

U.S. 323, 346 (1974)).

"424 U.S. 448 (1976).

"M at 456. If the apparent holding of Gertz can so easily change shape, one
wonders whether the rest of the opinion can be relied on with any degree of confidence.

One part of the opinion that has taken on importance is the paragraph in which Justice
Powell wrote that "[ujnder the First Amendment there is no such thing as a false idea."
418 U.S. at 339. This dictum has been taken by a majority of the circuit courts to mean

that a statement of opinion can never be actionable in a defamation case. See, e.g.,

Janklow v. Newsweek, Inc., 759 F.2d 644, 649 (8th Cir. 1985); Oilman v. Evans, 750

F.2d 970, 974 n.6 (D.C. Cir. 1984), cert, denied, All U.S. 1127 (1985); Note, The Fact-



1987] NEW DIRECTIONS 173

Apparent inconsistency aside, it is evident that Dun & Bradstreet is
an important decision in the Court's ongoing struggle to balance rep-

utational interests with first amendment interests. In the decade following
New York Times Co. v. Sullivan, the Court issued a series of opinions
which consistently increased the protection accorded defendants in def-

amation actions. In Garrison v. Louisiana, ^"^ the Court extended the New
York Times privilege to cases involving criminal libel; as stated above,

in Curtis Publishing Co. v. Butts, ^^ the Court extended the privilege to

cases brought by "pubhc figures". In St. Amant v. Thompson,^^ the
Court held that New York Times "malice" was not to be found absent
a determination that the defendant entertained serious doubts as to the

truth of the communication; in Rosenbloom v. Metromedia, Inc.,^''

the Court applied the privilege in a case involving a private plaintiff.

More recently, however, the Court has shown a tendency to restrict the
protection accorded defamation defendants. In Gertz, for example, the

Court narrowly applied the "public figure" test to the facts before it,

and held that a private plaintiff needs to show only negligence in order

to recover in a defamation case.^* In Herbert v. Lando,^^ the Court held

that the first amendment did not require a privilege against inquiries into
the editorial processes of a press defendant in a defamation case. In both

Keeton v. Hustler Magazine *^ and Calder v. Jones, ^^ the Court ruled

against defendants who had challenged the jurisdiction of the states in
which suit had been brought, and in doing so increased the ability of

a defamation plaintiff to sue an out of state publisher in the plaintiff's

home state. Now, in Dun & Bradstreet, the Court has seized upon a

Opinion Distinction in First Amendment Libel Law: The Need for a Bright-Line Rule,
11 Geo. L. J. 1817 (1984). Justices Rehnquist and White, however, have taken the position

that the Court in Gertz did not intend to supplant the common law and hold that no
opinion is actionable. Miskovsky v. Oklahoma PubUshing Co., 459 U.S. 923 (1982)
(Rehnquist, J., dissenting). See also Oilman v. Evans, 471 U.S. 1127, 1129 (1985) (Rehnquist,

J., dissenting). Support for this position lies in the observation by Professor Anderson

that in Old Dominion Branch 496, Nat'l Association of Letter Carriers v. Austin, 418

U.S. 264 (1974), a case which was decided on the same day as was Gertz and in which

the speech at issue was arguably a statement of opinion. Justice Powell would have held

the defendant liable. See Anderson, Libel and Press Self-Censorship, 53 Tex. L. Rev.

422, 452 n.l50 (1975).

"379 U.S. 64 (1964).

"388 U.S. 130 (1967).

3*390 U.S. 727 (1968).

"403 U.S. 29 (1971).

^^See Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert
Welch, Inc., 54 Tex. L. Rev. 199, 221-223 (1976).

"441 U.S. 153 (1979).

''°465 U.S. 770 (1984).

^"465 U.S. 783 (1984).



774 INDIANA LAW REVIEW [Vol. 20:767

distinction, the subject matter of the speech at issue, to restrict further

the protection given defendants in defamation actions.

The reasoning utiHzed by Justice Powell in Dun & Bradstreet could
result in additional limits on the protection afforded defendants in such

actions. For example, the Court in future cases could hold that the

abolition in Gertz of strict liability in defamation actions does not apply

where the speech complained of is not of public concern, at least where

the plaintiff is a private figure. Justice Powell's opinion in Dun &
Bradstreet itself has already been interpreted as so holding by a panel

of the Fourth Circuit."*^ Also, Justice White, concurring in Dun &
Bradstreet, wrote: "Although Justice Powell speaks only of the in-

appHcability of the Gertz rule with respect to presumed and punitive

damages, it must be that the Gertz requirement of some kind of fault

on the part of the defendant is also inapplicable in cases such as this.'"*^

Despite the reasoning of the Fourth Circuit panel and Justice White,

however, it does not necessarily follow from Dun & Bradstreet that the
states may now impose strict liability on defendants in defamation actions
in which private plaintiffs are complaining of speech not of public

concern. Such is the case for at least two reasons. First, one of the

bases for the result reached by Justice Powell in Dun & Bradstreet was
the fear, long expressed in the common law, that "proof of actual
damage will be impossible in a great many cases where, from the character
of the defamatory words and the circumstances of publication, it is all

but certain that serious harm has resulted in fact.""^ No such serious
concern has been expressed, however, either by Justice Powell or in the

common law, regarding the burden a defamation plaintiff faces in proving
fault on the part of a defendant. If the Court is satisfied that proving

negligence on the part of defendants in defamation cases is not an unduly

difficult task, then retention by the Court of the Gertz prohibition of

strict liability in these cases would not be inconsistent with Dun &
Bradstreet.

Second, it appears that the Court in Gertz used different tests to

determine the type of damages that should be awarded and the applicable

standard of liability. Justice Brennan noted in his dissent in Dun &

"^Mutafis V. Erie Insurance Exchange, 775 F.2d 593 (4th Cir. 1985).

*'A12 U.S. at 773-74.

**Id. at 760 (quoting W. Prosser, The Law of Torts § 112 at 765 (4th Ed.
1971)). See also id. at 2951 (White, J., concurring) (Showing of actual damage "a

burden traditional libel law considered difficult, if not impossible, to discharge"); 1 F.

Harper & F. James, The Law of Torts § 5.30 at 468 (1956) ("Actual damage to
reputation may be suffered although the plaintiff may be unable to prove it. By the very
nature of the harm resulting from defamatory publications, it is frequently not susceptible

of objective proof. Libel and slander work their evil in ways that are invidious and

subtle").



1987] NEW DIRECTIONS 775

Bradstreet that the Court in Gertz had reached its decision regarding

the propriety of presumed and punitive damages by applying an over-

breadth analysis, not a balancing test/^ The holding in Gertz regarding

the proper standard of hability, however, was clearly the result of Justice

Powell's balancing test and his desire to find an "equitable boundary

between the competing concerns" of personal integrity and free expres-

sion. "^^ It could be that Dun & Bradstreet signals the Court's desire to
utiHze balancing for both the question of proper damages and the question

of the proper standard of liability in defamation cases. On the other
hand, if Justice Powell had meant in Dun & Bradstreet to abolish the
overbreadth analysis of Gertz in favor of a balancing test, one would

think that he would have expressed his intentions. In sum, it is not

clear that the Court has rejected the overbreadth analysis used in Gertz

to determine the proper damages to be awarded in defamation cases.

Therefore, it does not necessarily follow from Dun & Bradstreet that
the states are now free to impose increased liability on defamation
defendants: the Court's adjustment of one analysis would not necessarily

affect the other.

If, however, the Fourth Circuit and Justice White are correct, then

Dun & Bradstreet could mark a significant step in the recent series
of Supreme Court opinions reducing the protection given defendants in

defamation cases. Indeed, the Court could even use Dun & Bradstreet
as the basis for eliminating New York Times protection for defendants
in cases where a public figure or a public official complains of speech

adjudged not to be of public concern. In such a case, the weight on

both sides of the balance, i.e., the state's interest in protecting the

reputation of one who has *' assumed the risk" of negative comment by
entering the public arena and who presumably has greater than average
access to channels of communication through which he can rebut such

comment, and the first amendment interest in protecting speech not of
public concern, would be reduced. The question would be the relative

scope of the reductions, and the outcome could be a requirement that

"^72 U.S. at 794. Justice Brennan wrote that the Court in Gertz had reached its

conclusion as to the propriety of awarding presumed and punitive damages "not ... by

weighing the strength of the state interest against strength of the First Amendment interest.
Rather, the Court recognized and applied the principle that regulatory measures that chill

protected speech be no broader than necessary to serve the legitimate state interest asserted."

Id. In Gertz, Justice Powell had written: "It is ... appropriate to require that state

remedies for defamatory falsehood reach no farther than is necessary to protect the

legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not
prove knowledge of falsity or reckless disregard for the truth to compensation for actual

injury." 418 U.S. at 349.

M18 U.S. at 347-48.



776 INDIANA LA W REVIEW [Vol. 20:767

a plaintiff in such a case need only show negligence to recover/^ or a
rule that a plaintiff in such a case may recover without proving any fault
at all on the part of the defendant/^

Such a development would be significant, but not surprising. Indeed,

Justice Goldberg, who with Justices Douglas and Black was of the
opinion that no Hability whatsoever could be imposed on one commenting

on the pubHc conduct of a public official, distinguished in his concurring

opinion in New York Times between a defamatory statement concerning
a public official's public conduct and one concerning an official's private

conduct, stating that the latter "has little to do with the political ends

of a self-governing society. "^^ Therefore, wrote Justice Goldberg, "[t]he

imposition of liability for private defamation does not abridge the free-

dom of public speech or any other freedom protected by the First
Amendment. "^^ Justice Brennan made substantially the same point in
Rosenbloom v. Metromedia, Inc.,^^ and the Court in Monitor Patriot
Co. V. Roy " left open the question "whether there remains some
exiguous area of defamation against which a candidate may have full
recourse . . . ."^^ Since the Court is now wiUing to consider both the
nature of the speech and the nature of the plaintiff in defamation cases,

this is a question that may soon have to be answered.
An affirmative answer by the Court might have little effect on

defamation actions brought by public officials. After establishing the

*The writers of the Restatement have taken the position that a public official or

public figure who complains of speech "in relation to a purely private matter not affecting
his conduct, fitness or role in his public capacity" need only show negligence on the part

of the defendant to recover damages. Restatement (Second) of Torts § 580B (1975).

This section was written when it appeared from Gertz that the Court had rejected the

imposition of strict liability on defendants in defamation cases of any sort.

"^Such a rule would be the converse of Rosenbloom: A finding that the speech at
issue was not of public concern would make possible the imposition of strict liability on
the defendant, whereas in Rosenbloom a finding that the speech at issue was of public

concern resulted in New York Times protection for the defendant. In addition, under
such a rule the question whether to impose strict liability on the defendant or grant the

defendant New York Times protection would rest solely on a determination of the nature
of the speech at issue, which is exactly what Justice Powell disapproved of in Gertz. 418

U.S. at 346.

^'376 U.S. at 301 (Goldberg, J., concurring).

^°Id. at 301-02. Judge Wright expressed a similar view: "[W]here the subject matter

of the alleged libel against a public official is a private affair, the rule should be different

since here the need for free and unfettered discussion is greatly diminished if not non-

existent." Wright, supra note 23, at 639.

^'Justice Brennan wrote: "[S]ome aspects of the lives of even the most pubhc men
fall outside the area of matters of public or general concern." 403 U.S. at 48.

"401 U.S. 265 (1971).

"/<i. at 275. A candidate for public office is perhaps the least favored hbel plaintiff;
as Justice Powell wrote in Monitor Patriot, "it can hardly be doubted that the constitutional

guarantee [of freedom of speech] has its fullest and most urgent application precisely to

the conduct of campaigns for political office." Id. at 272.



1987] NEW DIRECTIONS 777

New York Times privilege, the Court was quick to indicate that there
would be few cases in which the privilege would not apply where the

speech concerned a public official.^'* In Garrison v. Louisiana, for ex-

ample, the Court reasoned that since "[t]he public-official rule protects

the paramount public interest in a free flow of information to the people

concerning public officials, their servants .... anything which might touch

on an official's fitness for office is relevant" and therefore protected by the

New York Times standard of proof. ^^ In Monitor Patriot, the Court
held "as a matter of constitutional law that a charge of criminal conduct,

no matter how remote in time or place, can never be irrelevant to an
official's or a candidate's fitness for office for purposes of application

of the 'knowing falsehood or reckless disregard' rule of New York Times
Co. V. Sullivan."'^

It is more likely that speech concerning some public figures would

be considered not to be of public concern. In Gertz, the Court identified

two types of public figures: one whose fame is so pervasive that he is

a public figure "for all purposes and in all contexts,"" and, "[mjore

commonly . . . [one who] voluntarily injects himself or is drawn into
a particular public controversy and thereby becomes a public figure for

a Hmited range of issues. "^^ Although the matter is not free from doubt, ^^

^^One such case is Aku v. Lewis, 52 Haw. 366, 477 P.2d 162 (1970), wherein the
Supreme Court of Hawaii wrote that the plaintiff, a police officer, would normally be

considered to be a public official, but that since the speech at issue concerned the plaintiff's

involvement as the coach of a youth football team rather than his duties as a police

officer, his "activities were not within the purview of [New York] Times . ..." 52 Haw.

at 375, 477 P.2d at 168.

"379 U.S. at 77. Garrison, who was the Orleans Parish district attorney, had charged
eight judges of the Orleans Parish criminal court with laziness and inefficiency, and had

suggested that the judges were subject to "racketeer influences." Id. at 66.

^^401 U.S. at 277. Such a broad construction of what is of public interest was

suggested by Alexander Meiklejohn, who wrote:
In cases of private defamation, one individual does damage to another by tongue

or pen; the person so injured in reputation or property may sue for damages.
But, in that case, the First Amendment gives no protection to the person sued.
His verbal attack has no relation to the business of governing. If, however, the

same verbal attack is made in order to show the unfitness of a candidate for
governmental office, the act is properly regarded as a citizen's participation in

government. It is, therefore, protected by the First Amendment.
A. Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245, 259.

The Court's newfound desire to examine the content, form, and context of speech when

deciding whether the speech is of public concern, discussed infra notes 79 to 114, could

result in a narrower view of what speech is protected by the New York Times privilege,
even when the speech concerns a public official. See infra note 111.

"418 U.S. at 351.

''Id.

''See Schauer, Public Figures, 25 Wm. & Mary L. Rev. 905, 917-19 (1984); Daniels,
Public Figures Revisited, 25 Wm. & Mary L. Rev. 957, 962-68 (1984). In Carson v.



778 INDIANA LAW REVIEW [Vol. 20:767

it appears that members of the first category could include movie stars,

athletes, and others whose connection with the affairs of government is

minimal. A court could easily conclude that a statement which would
be of public concern if made concerning a United States Senator would
not be of public concern if made concerning Pee Wee Herman.^° As to
''Hmited purpose" public figures, it is apparent that statements concerning

issues other than those for which such a person is a public figure could

be held not to be of pubHc concern.^' It is therefore possible that the

Court's reinjection into defamation cases of the question whether the

speech at issue is of public concern will have an effect on cases involving

a variety of issues other than those before the Court in Dun & Bradstreet,
and if there was any doubt after Dun & Bradstreet as to the strength
of the Court's renewed interest in testing the nature of the speech at

issue in defamation cases, it was likely dispelled by the Court's decision,

handed down ten months after Dun & Bradstreet, in Philadephia News-
papers, Inc. V. Hepps.^^

III. The Philadelphia Newspapers Case

In Philadelphia Newspapers, the principal stockholder of a corpo-

ration that franchised convenience stores sued the Philadelphia Inquirer

in Pennsylvania state court for defamation, based on a series of articles

that suggested that the plaintiff was connected to organized crime and

had used his connections to gain favorable treatment for his business

from members of the state government. At the close of evidence, the

trial judge deemed unconstitutional the Pennsylvania statute which placed

on the defendant the burden of proof as to the truth of the publication, and

the judge therefore instructed the jury that the plaintiff bore the burden of

proof on the issue. The jury awarded no damages, and the plaintiff

brought a direct appeal to the Pennsylvania Supreme Court, which held

Allied News Co., 529 F.2d 206 (7th Cir. 1976), the court wrote that Johnny Carson was
an all purpose public figure. Carson certainly fits the Gertz description of a public figure

who has greater than average access to "channels of effective communication" through
which to rebut false allegations, 418 U.S. at 344, and who has assumed the risk of negative
comment. However, the Court in Gertz also noted that public figures "assume special

prominence in the resolution of pubhc questions," 418 U.S. at 351, a category into which

Carson does not fall so easily.

^For example, a charge of laziness or inefficiency on the part of a public official

would certainly be more likely to be considered of public concern than the same charge

leveled at a movie star.

^'See, e.g., Dameron v. Washington Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985)
(air controller public figure only as to discussions of plane crash); McDowell v. Paiewonsky,

769 F.2d 942 (3rd Cir. 1985) (architect-engineer public figure only as to issues regarding

his work on public building projects).
"106 S. Ct. 1558 (1986).



1987] NEW DIRECTIONS 779

that the statute was not unconstitutional and remanded the cause for

a new trial."
The United States Supreme Court reversed, in an opinion written

by Justice O'Connor and joined by Justices Brennan, Marshall, Black-
mun, and Powell. Seeking as always to reach an "appropriate accom-

modation between the public's interest in an uninhibited press and its

equally compelling need for judicial redress of Hbelous utterances, "^"^

the Court reaffirmed its position that "[t]he First Amendment requires
that we protect some falsehood in order to protect speech that matters, "^^

and held that, "at least where a newspaper^^ publishes speech of public

concern, a private-figure plaintiff cannot recover damages without also

showing that the statements at issue are false. "^^

Thus, as it had in Dun & Bradstreet, the Court in Philadelphia
Newspapers focused on the nature of the speech at issue in resolving

the question before it; indeed. Justice O'Connor wrote that the Court's
decisions since New York Times demonstrated "two forces that may
reshape the common-law landscape to conform to the First Amendment.
The first is whether the plaintiff is a public official or figure, or is

instead a private figure. The second is whether the speech at issue is

of public concern. "^^ This appears to be a notable departure from the

rejection in Gertz and subsequent cases of a subject matter test; in fact.

Justice O'Connor even suggested in Philadelphia Newspapers that the
Court's decision in Gertz was aimed at providing " 'breathing space'

... for true speech on matters of public concern . . . ."^'

The fact is, of course, that after Gertz the Court had applied a test

that only took into account the nature of the plaintiff. There is no

doubt, however, that Justice O'Connor was correct in suggesting that

the desire to protect speech of public concern has been one of the bases

of the Court's treatment of defamation cases since New York Times.

"506 Pa. 3Q4, 485 A.2d 374 (1984).
^106 S. Ct. at 1562 (quoting Time, Inc. v. Firestone, 424 U.S. 448, 456 (1976)).

'''Id. at 1564-65 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1984)).

^See infra note 78.
*^106 S. Ct. at 1559. Since public figures always have a heavier burden than do

private figures in libel cases, the Court's holding must also apply to public figure plaintiffs.

The actual holding in Philadelphia Newspapers was not unexpected; as Justice O'Connor
noted, the Court had in previous cases indicated that the burden of proof on the issue

of truth or falsity should be on the plaintiff, 106 S. Ct. at 1561, 1563, and a number

of courts had already shifted the burden of proof on this issue. See, e.g., Tavoulareas v.

Piro, 759 F.2d 90 (D.C. Cir. 1985), rev'd on other grounds, 817 F.2d 762 (D.C. Cir. 1987)

(en banc); Wilson v. Scripps-Howard Broadcasting Co., 642 F.2d 371 (6th Cir. 1981), cert,

granted, 454 U.S. 962 (1981), cert, dismissed, 454 U.S. 1130 (1981); see also Franklin &
Bussel, The Plaintiff's Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary
L. Rev. 825 (1984); Eaton, supra note 18 at 1384 n.l51.

*«106 S. Ct. at 1563.

^^Id. at 1565.



780 INDIANA LA W REVIEW [Vol. 20:767

The Stated purpose of the New York Times privilege, and of its extension
to cases involving suits brought by public figures, was "to protect speech

that matters. "^^ The Court has consistently expressed its view that the

speech that matters the most is speech on issues of public concern.^'

Thus, when the Court in New York Times prohibited a public official
from recovering damages for defamatory speech relating to his official

conduct unless he could prove, by clear and convincing evidence, the

existence of "malice", it did so to protect "freedom of expression upon

public questions . . . ."^^ When the Court extended the New York Times
rule to suits brought by public figures, it did so because " 'pubHc

figures,' hke 'public officials,' often play an influential role in ordering

society," and "freedom of the press to engage in uninhibited debate

about their involvement in public issues and events is . . . crucial . . . ."^^

When the Court subjected candidates for public office to the burden
of the New York Times rule, it did so because of the need for the

'°Gertz V. Robert Welch, Inc., 418 U.S. 323, 341 (1974). Or, in the words of

Meiklejohn, to ensure that "everything worth saying shall be said." A. Meiklejohn, Free

Speech and Its Relation to Self-Government 25 (1948).
''See New York Times Co. v. Sullivan, 376 U.S. at 273 (1964) (such speech within

"the central meaning of the First Amendment"); First National Bank of Boston v. Bellotti,

435 U.S. 765, 776 (1978) (speech on matters of public concern "at the heart of the First

Amendment's protection"); Garrison v. Louisiana, 379 U.S. at 74-75 ("speech concerning

public affairs ... is the essence of self-government"); Carey v. Brown, 447 U.S. 455,

467 (1980) (political discussion occupies "highest rung of the hierarchy of First Amendment
values"). See also Lorain Journal Co. v. Milkovich, 106 S. Ct. 322, 329 (1985) (Brennan,

J., dissenting) (Court's decisions involving the New York Times standard "rest at bottom
on the need to protect public discussion about matters of legitimate public concern");

Dun & Bradstreet, All U.S. 749, 756 (1985) (every case in which the Court has placed
constitutional limits on state defamation law has involved "expression on a matter of

undoubted public concern"); SmoUa, Let the Author Beware: The Rejuvenation of the

American Law of Libel, 132 U. Pa. L. Rev. 1, 40-41 (1983).
^^376 U.S. at 269. The Court spoke of the "profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-open . . . .",

and stated that the speech in question, "as an expression of grievance and protest on

one of the major public issues of our time, would seem clearly to qualify for constitutional

protection." Id. at 270-71. See also Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) ("[t]here

is a strong interest in debate on public issues . . . and ... a strong interest in debate

about those persons who are in a position significantly to influence the resolution of those
issues").

'^Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C.J., concurring).

Chief Justice Warren also wrote: "In many situations, policy determinations which tra-
ditionally were channeled through formal political institutions are now originated and
implemented through a complex array of boards, committees, commissions, corporations,

and associations, some only loosely connected with the Government. This blending of

positions and power has also occurred in the case of individuals so that many who do
not hold public office at the moment are nevertheless 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." Id. at 163-64.



1987] NEW DIRECTIONS 781

public to gain full knowledge of the qualifications of those who seek
to make public policy. ^"^ On the other hand, one of the bases for the
Court's refusal to require private plaintiffs to prove New York Times
"malice" has surely been the Court's view that speech about private

figures tends to be of less pubHc importance than speech about public
officials and public figures. ^^ This inconsistency, therefore, has not been

in the Court's commitment to protecting speech on matters of public
concern, but rather in the Court's attempts to secure that protection. ^^

^^Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).

''See, e.g.. Dun & Bradstreet, 472 U.S. at 780 n.5 (Brennan, J., dissenting) ("Speech
allegedly defaming a private person will generally be far less likely to implicate matters

of public importance than will speech allegedly defaming public officials or public figures").

It may also be that the question of whether speech is of public concern has been a factor
in defamation cases involving private plaintiffs, since the general negligence analysis consists

of balancing the probability and the gravity of the risk of harm with the utihty of the

conduct in question. See Restatement (Second) of Torts § 291 (1965); W. Prosser, D.
DoBBS, R. Keeton & D. Ov^n, supra note 2, § 31 at 171. The Restatement takes the
position that a defendant speaking on matters of public importance should be less likely

to be found negligent than a defendant spreading gossip, since "[ijnforming the public

as to a matter of public concern is an important interest in a democracy," whereas the

"spreading of mere gossip is of less importance" and therefore requires more care on

the part of the speaker. Restatement, supra note 47, § 580B, comment h. See Smolla,

supra note 71, at 81-86. In addition, the Gertz "public figure" test, focusing as it does

on whether the plaintiff has participated in a "pubhc controversy", has necessitated

inquiries which resemble those which had been necessary after Rosenbloom, and which

seemed to have been repudiated by Gertz. See Eaton, supra note 18, at 1423-24.

^^An example of this confusion can be found in Time, Inc. v. Firestone, 424 U.S.

448 (1976). In Gertz the Court had rejected the application of the New York Times rule
to cases brought by private figures primarily because private figures have not "assumed

the risk" of defamation and because they do not have easy access to channels of rebuttal.

In Firestone, however, the Court held that the plaintiff, who seemed clearly to have
assumed the risk of defamatory comment and to have access to channels of rebuttal, was

a private figure because "[s]he assumed no 'special prominence in the resolution of public

questions,' " that is, the matter in which the plaintiff was involved, a divorce proceeding,

"is not the sort of 'public controversy' referred to in Gertz, even though the marital

difficulties of extremely wealthy individuals may be of interest to some portion of the
reading public." Id. at 454-55. The Court also stated its view that "the details of many,

if not most, courtroom battles would add almost nothing towards advancing the uninhibited

debate on public issues thought to provide principal support for the decision in New York
Times.'' Id. at 457. Thus the Court, under the guise of applying a test focusing on the

nature of the plaintiff, in fact seemed to have applied a subject matter test. Recognizing

this. Justice Marshall wrote:

If there is one thing that is clear from Gertz, it is that we explicitly rejected

the position of the plurality in Rosenbloom . . . that the applicability of the

New York Times standard depends upon whether the subject matter of a report
is a matter of 'public or general concern.' . . . Having thus rejected the ap-

propriateness of judicial inquiry into 'the legitimacy of interest in a particular

event or subject,' . . . Gertz obviously did not intend to sanction any such

inquiry by its use of the term 'public controversy.' Yet that is precisely how I



782 INDIANA LAW REVIEW [Vol. 20:767

IV. Potential Repercussions of Dun & Bradstreet and
Philadelphia Newspapers

There are aspects of Dun & Bradstreet and Philadelphia Newspapers
that may have the unfortunate effect of increasing this confusion.
For example, since the Court now recognizes both a distinction be-
tween private and public plaintiffs and a distinction between speech

not of public concern and speech of pubHc concern, every defamation

case can now be placed in one of four categories. The number of possible
categories had previously been Hmited to two.'^'^ Given the difficulty that

courts have had with defamation cases to this point, one cannot hold

too much hope of clearer and more logical results now that the number
of categories into which each defamation case may be placed has been
doubled.^^

Perhaps more troubling than the increased number of categories is

the reference in Dun & Bradstreet to Cor^nick v. Myers^^ as a guide to

understand the Court's opinion to interpret Gertz.

Id. at 488 (Marshall, J., dissenting). See also L. Tribe, supra note 25, § 12-13 at 644-

45 (explanation for the result in Firestone is that the Court "decided that gossip about the

rich and famous is not a matter of legitimate public interest"); Note, Public Figures,

Private Figures and Public Interest, 30 Stan. L. Rev. 157 (1977).

^^Justice O'Connor alluded to three of the four categories in Philadelphia Newspapers:

When the speech is of public concern and the plaintiff is a public official or
public figure, the Constitution clearly requires the plaintiff to surmount a much
higher barrier before recovering damages from a media defendant than is raised

by the common law. When the speech is of public concern but the plaintiff is
a private figure, as in Gertz, the Constitution still supplants the standards of

the common law, but the constitutional requirements are, in at least some of
their range, less forbidding than when the plaintiff is a public figure and the

speech is of public concern. When the speech is of exclusively private concern
and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional
requirements do not necessarily force any change in at least some of the features

of the common-law landscape.

106 S.Ct. at 1563.

^^The problem would be twice as great if the Court distinguished between media

and non-media defendants. Following Justice Powell's repeated reference in Gertz to the

fact that the defendant in that case was a media entity, doubt existed as to whether the

New York Times privilege applied in suits brought against non-media defendants. See
Robertson, supra note 38, at 215-20; Eaton, supra note 18, at 1416-18; Note, Mediaocracy

and Mistrust: Extending New York Times Defamation Protection to Nonmedia Defendants,
95 Harv. L. Rev. 1876 (1982); Restatement, supra note 47, § 580B comment e. The
various opinions in Dun & Bradstreet indicated that a majority of the Court rejected this
distinction. See 472 U.S. at 773 (White, J., concurring); id. at 781-84 (Brennan, J.,

dissenting); see also Garcia v. Board of Education, 777 F.2d 1403 (10th Cir. 1985) (so

reading Dun & Bradstreet). Strangely enough, however, in Philadelphia Newspapers the
majority opinion once again stressed the fact that the defendant was a member of the
media, and already one court has read Philadelphia Newspapers as establishing a special

proof requirement for media defendants in defamation cases. See Lake Shore Investors

V. Rite Aid Corp., 67 Md. App. 743, 509 A.2d 727 (1986).
'H61 U.S. 138 (1983).



1987] NEW DIRECTIONS 783

determining what speech is of pubhc concern. In that case, Myers, an

assistant district attorney, had been dismissed after circulating a ques-

tionnaire among her fellow employees, seeking their views on office
transfer policy, office working conditions, the trustworthiness of certain

employees, the existence of political pressures in the office, and the need

to establish an office grievance committee/" She sued Connick, the

district attorney, claiming that she was fired because she had exercised

her right of free speech and that the termination was therefore uncon-

stitutional.

The Court disagreed. The task, wrote Justice White, was to strike

*'a balance between the interests of the [employee], as a citizen, in

commenting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the public services

it performs through its employees. "^^ Since the Court found that the

questionnaire "touched upon matters of public concern in only a most

limited sense . . . [and] is most accurately characterized as an employee

grievance concerning internal office policy, ''^^ it held that '*[t]he limited

First Amendment interest involved . . . does not require that Connick
tolerate action which he reasonably believed would disrupt the office,

undermine his authority, and destroy close working relationships,"^^ The

termination of Myers, therefore, was not unconstitutional.

Explaining his conclusion that Myers' questionnaire was of limited

public concern. Justice White wrote: "Whether an emploj^ee's speech

addresses a matter of public concern must be determined by the content,

form, and context of a given statement, as revealed by the whole

record. "^"^ It is this test that Justice Powell used to determine the nature

of the speech at issue in Dun & Bradstreet.
It is by no means clear, however, that the Court's analysis in Connick

is applicable to a defamation case. The Court has to this point given

little indication that "speech that matters" might matter less if it is

made in a certain way or in a certain context. ^^ It is not immediately
apparent how these considerations can affect the proper characterization
of the subject matter of a given statement; "[t]he general proposition

^°Id. at 141. Her superiors were apparently of the view that Myers' activities amounted

to insubordination and created a "mini-insurrection." Id.

''Id. at 142 (quoting Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968)).
'^Id. at 154.

''Id.

''Id. at 147-48.

''See McDonald v. Smith, 472 U.S. 479, 490 (1985) (Brennan, J., concurring)
("There is no persuasive reason for according greater or lesser protection to expression

on matters of public importance depending on whether the expression consists of speaking

to neighbors across the backyard fence, publishing an editorial in the local newspaper,

or sending a tetter to the President of the United States"); Restatement, supra note

47, § 580A, comment h.



784 INDIANA LA W REVIEW [Vol. 20:767

[is] that freedom of expression upon public questions is secured by the

First Amendment, "^^ and it seems that the proper inquiry should focus
not upon the circumstances surrounding the making of the speech but
rather upon the matters at which the speech is directed. ^^

The inclusion of such considerations in the context of a case deaHng

with the effect that an employee's speech has on the smooth operation

of a workplace is perhaps understandable. The Court in Connick stressed

its unwillingness to create in the federal courts a massive employment

review board and its hesitance to allow "every employment decision [to

become] a constitutional matter. "^^ The Court therefore distinguished

between cases in which one speaks ''as a citizen upon matters of pubHc

concern"^^ and those in which one speaks ''as an employee upon matters

only of personal interest,"^ and held that expressions of the first type

are entitled to much greater first amendment protection than are expres-
sions of the second type. Thus it appears that the Court sought in

Connick to limit the occasions on which an employee could properly

claim full first amendment protection for a work-related grievance,

evaluating the form and the context of the speech at issue in order to

determine whether the statement was made in the speaker's capacity as
an employee or as a citizen,^' and therefore whether or not a constitutional

question was raised.

There are a number of problems, however, with applying this sort

of analysis to a defamation case. First, the Connick test is unclear. ^^

Courts applying Connick to determine whether speech is of public concern

«6New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).

"See Connick, 461 U.S. at 160 (Brennan, J., dissenting) (stating that "whether a parti-

cular statement by a public employee is addressed to a subject of public concern does not

depend on where it was said or why"); Consolidated Edison Co. v. Public Service

Commission, 447 U.S. 530, 538 n.5 (1980) (when court is asked to determine whether

speech is protected by the first amendment, it "must look to the content of the expression");

Young V. American Mini Theatres, Inc., 427 U.S. 50, 67 (1976) ("a common thread which
[runs] through all the [Court's defamation] opinions [is] the assumption that the rule to

be applied depend[s] on the content of the communication"); Yoggerst v. Hedges, 739

F.2d 293, 296 (7th Cir. 1984) ("While Connick mandates that we examine the content,

form, and context of speech to determine whether, as a matter of law, it can be characterized

as speech on a matter of public concern, we believe that the content factor is most
important in making this determination").

««461 U.S. at 143.

^'Id. at 147.

^Id.

""'See infra note 103.

^^See McKinley v. City of Eloy, 705 F.2d 1110, 1113-14 (9th Cir. 1983) (acknowledging

difficulty courts have had in deciding when speech addresses issues of public concern); Zaky
v. United States Veterans Administration, 605 F. Supp. 449, 456 (N.D. Ind. 1984), aff'd,

793 F.2d 832 (7th Cir. 1986) (complaining of "the confusion inherent in such a nebulous

concept" as the Connick test).



1987] NEW DIRECTIONS 785

demonstrate a reluctance to offer much more in the way of reasoning
than the conclusory statement that the speech either is or is not of pubhc

concern." Perhaps this is understandable, given the lack of guidelines in

Connick itself, and the disagreement between Justices Powell and Bren-

nan in Connick as to the proper scope of the category of matters of public

concern, a disagreement which continued in Dun & Bradstreet. As long
as the determination of whether speech is of public concern must be

made with a test so vague (and thus manipulable) as is the Connick
test, the danger exists that confusion, or analysis aimed at a desired

result, will prevail.^"

Also, it is unclear how much weight is to be given each of the three
factors—content, form and context—in determining whether the speech
at issue is of public concern. In Connick, the Court determined that

five of the matters covered by Myers' questionnaire were not of public

concern, and that one, a question whether office employees felt political

pressure from their superiors, was of public concern. Thus, although

the '"form" and the "context" of the expressions were identical, the

"content" of one caused the Court to consider it to be of public concern.

Perhaps this means that speech about some subjects is of public concern
regardless of any other considerations. Justice White indicated in Connick

that a protest against racial discrimination is "a matter inherently of

public concern. "^5 Does this mean that an employee's speech on this

^^In Philadelphia Newspapers, for example, Justice O'Connor offered very little

explanation for the conclusion that the newspaper articles at issue were of public concern.

In his concurring opinion in Dun & Bradstreet, Justice White gave no explanation at all
for his conclusion that the credit report was not of public concern, and Justice Powell

rested his conclusion that the credit report was not of public concern entirely on the fact

that the report was *'in the individual interest of the speaker and its specific business

audience," and that the report was intended for limited distribution. 472 U.S. at 762.

Dissenting in Dun & Bradstreet, Justice Brennan complained that "the five Members of
the Court voting to affirm the damage award . . . have provided almost no guidance as

to what constitutes a protected 'matter of pubhc concern.'" 472 U.S. at 786. See also

McPherson v. Rankin, 786 F.2d 1233 (5th Cir. 1986), aff'd, 107 S. Ct. 2891 (1987);
Anderson v. Central Point School Dist., 746 F.2d 505 (9th Cir. 1984); Rookard v. Health

and Hospitals Corp., 710 F.2d 41 (2d Cir. 1983).

'"In Pickering v. Bd. of Educ, 391 U.S. 563 (1968), Justice Marshall wrote that it

would be unwise to establish a general standard by which to judge the statements of

pubhc employees, given "the enormous variety of fact situations" which could be presented

to the courts by employee discharge cases. Id. at 569. Such a case-by-case approach was

apparently approved in Dun & Bradstreet; responding to the dissent's suggestion that Dun
& Bradstreet reduced first amendment protection for all credit reporting, Justice Powell
wrote that "[t]he protection to be accorded a particular credit report depends on whether

the report's 'content, form, and context' indicate that it concerns a public matter." 472

U.S. at 762 n.8. This is noteworthy in light of the fact that in Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974), Justice Powell had voiced his opposition to such case-by-case

analysis, and had written in support of "broad rules of general application." Id. at 343-

44.

''461 U.S. at 148 n.8. See also Rowland v. Mad River Local School Dist., 470 U.S.



786 INDIANA LAW REVIEW [Vol. 20:767

issue would be held to be '*of public concern" regardless of the cir-

cumstances surrounding the speech? If so, what other matters fall into

the category of speech inherently of public concern? How does the
Court's willingness to consider the form and the context of a statement

square with the apparent rejection in Dun & Bradstreet of a distinction
between media and non-media defendants? And how is the Connick
analysis, aimed as it is at checking 'Hhe disruptive potential of speech, "^^

relevant to the protection of "uninhibited, robust, and wide-open"^''

debate which the Court has sought to ensure in previous defamation

cases?

In addition, courts applying the Connick test display an increased

willingness to find that speech is of pubHc concern if it relates to a

matter in the news or if it is made to the pubUc at large,^^ an approach
that takes into account the '*newsworthiness" of the speech at issue,

gives more protection to speech that is * 'newsworthy" than speech that

is not, and thus appears to be contrary to the Court's previously expressed

view that such an approach constitutes impermissible content-based reg-

ulation.^^ In Germann v. City of Kansas City,^^ for example, a fireman
claimed that he had been passed over for promotion because of a letter

he had written to the fire chief, copies of which he had sent to various city

employees and to the firefighters' union. The letter, which arose out of
a conflict between the union and the fire department management over

the implementation of a "fire plan", accused the fire chief of "tear[ing]

1009, 1012 (1985) (Brennan, J., dissenting) (gay rights an issue inherently of public concern);

Lewis V. Elliot, 628 F. Supp. 512, 521 (D.D.C. 1986) (ethics of government employee

"quintessentially" matter of public concern). See also Mahaffey v. Kansas Bd. of Regents,

562 F. Supp. 887, 890 (D. Kan. 1983) (speech regarding plaintiff's salary increases and

perquisites, his position on college organizational chart, and the identity of his superiors

addressed topics that were "quintessentially items of individual, rather than pubUc, con-

cern").

'^Rowland v. Mad River Local School Dist., 470 U.S. 1009, 1013 n.6 (1985) (Brennan,
J., dissenting).

^^New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

^^See The Supreme Court, 1982 Term, 97 Harv. L. Rev. 70, 171-72 (1983).

^See Regan v. Time, Inc., 468 U.S. 641 (1984). Such an approach would certainly

seem to be antithetical to the traditional view of a content-neutral first amendment; as
Professor Emerson wrote, "a classification that bases the right to first amendment

protection on some estimate of how much general interest there is in the communication
is surely in conflict with the whole idea of the First Amendment." T. Emerson, The
System of Freedom of Expression 554 (1970). Justice Brennan, dissenting in Dun &
Bradstreet, called the view that the limited circulation of an expression might make it
less a matter of public concern "dubious on its own terms and flatly inconsistent with
our decision in Givhan v. Western Line ConsoUdated School Dist., 439 U.S. 410 (1979)."

472 U.S. at 795 n.l8. The Court held in Givhan that the first amendment protection

accorded the statements of a public employee is not reduced when the employee com-

municates the views privately rather than publicly. Givhan, 439 U.S. at 415-16.

'«'776 F.2d 761 (8th Cir. 1985).



1987] NEW DIRECTIONS 191

the Kansas City fire department to shreds," going back on his word,

and having a "pitifully twisted outlook toward the employees of the

department ... ."'^' Although the distinction between this speech and

that held to involve "mere extensions of [the employee's personnel]

dispute" '°^ in Connick is not overwhelming, the Eighth Circuit Court

of Appeals held that "because appellant's letter concerned implementation

of the fire plan during a time of great media attention, it addressed a

matter of pubHc concern.'"" The Ninth Circuit Court of Appeals, in

'°'/ar. at 763.

'°H61 U.S. at 148.

^^^Germann, 116 F.2d at 764 n.2. In Connick, Justice White indicated that the speech

in Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), was of public concern

in part because the subject matter of the speech had been carried as a news item by the

local radio station, 461 U.S. at 145-46. In Pickering v. Board of Educ, 391 U.S. 563 (1968),

upon which Connick was based, the Court, in the course of stating that the speech at

issue was of pubhc concern, noted that the speech addressed "issues then currently the

subject of public attention . ..." /c/. at 572. See also Bowman v. Pulaski County Special
School Dist., 723 F.2d 640, 642 (8th Cir. 1983) (two teachers' speech regarding a fellow

teacher's disciplinary methods held to be of pubhc concern in part because the matter

had drawn "a considerable amount of press coverage"); McGee v. South Pemiscot School
Dist., 712 F.2d 339, 342 (8th Cir. 1983) (the fact that school board members had stated their

position regarding funding for junior high school track and field in "the only newspaper

in town" supported conclusion that issue was of pubhc concern); Monsanto v. Quinn,

674 F.2d 990, 997 (3d Cir. 1982) (media coverage of an issue is evidence that matter is

of public interest); Wichert v. Walter, 606 F. Supp. 1516, 1524 (D.N.J. 1985) (fact that

issue "generated a banner headline" in local newspaper indicated that it was of pubhc

concern); Ferrara v. Mills, 596 F. Supp. 1069, 1074 (S.D. Fla. 1984), aff'd, 781 F.2d

1508 (11th Cir. 1986) (whether the subject matter of the speech at issue has drawn press

attention is a factor to be considered in deciding whether it is of public concern); Collins

v. Robinson, 568 F. Supp. 1464, 1468 (E.D. Ark. 1983), aff'd, 734 F.2d 1321 (8th Cir.

1984) (speech concerning a matter that was "a spinoff of a crowded and rather tumultuous

meeting" was of public concern).

A different approach was taken recently by the Fifth Circuit in Terrell v. Univer-
sity of Texas System Pohce, 792 F.2d 1360 (5th Cir. 1986), cert, denied, 107 S. Ct.

948 (1987). In that case a captain on a university police force was fired after notes, which

were critical of the chief and which were in the handwriting of the captain, were sent to

the chief. The captain filed suit, claiming among other things that his dismissal was in
violation of his first amendment rights. The court disagreed. The inquiry, according to the
court, was not the "inherent interest or importance of the matters discussed by the employee,"

for "almost anything that occurs within a public agency could be of concern to the public

. ..." Id. at 1362. Rather, the proper inquiry was "whether the speech at issue . . . was
made primarily in the plaintiff's role as citizen or primarily in his role as employee." Id.
This approach follows from Connick, wherein the Court distinguished situations wherein

"a public employee speaks not as a citizen upon matters of pubhc concern, but instead
as an employee upon matters only of personal interest . . . ." 461 U.S. at 138. See also
Pickering v. Board of Educ, 391 U.S. 563, 574 (1968) (where teacher spoke out on matter
of public concern, it was "necessary to regard the teacher as the member of the general
public he seeks to be"); Yoggerst v. Hedges, 739 F.2d 293, 296 (7th Cir. 1984) (speech

was not of public concern where it was "clear from the content of [the] statement that



788 INDIANA LAW REVIEW [Vol. 20:767

McKinley v. City of Eloy,^^ held that a poHce officer's speech regarding

poHce salaries and the working relationship between the police union

and city officials was of public concern and placed importance on the

fact that the speech "was specifically and purposefully directed to the
public both through city council meetings and a television inter-

view. "•^^ This decision followed from Connick, wherein the Supreme

Court considered the fact that the employee had not sought to publicize

her complaints as a factor in its determination that the speech was of

limited public concern. '°^

In addition, there seems to be a natural disinclination in cases such

as Connick to find that the speech at issue is of pubUc concern. As
stated above, the Court has expressed its unwillingness to allow every

employer-employee dispute to become a constitutional issue. *°^ An ob-
vious way to keep this from happening is to find that the speech at
issue in a case is not of public concern. ^^^ Indeed, in Connick Justice

[the employer] was speaking in her role as an employee about her personal feelings and

not in her role as a citizen on a matter of public concern"). Ironically, therefore, it may
be that the Connick analysis seeks less to determine the nature of the speech at issue than

the nature of the speaker, and that the utility of the Connick test for determining whether

speech is of pubhc concern is limited.

"^705 F.2d 1110 (9th Cir. 1983).

"''Id. at 1115. See also Terrell v. University of Texas System Police, 792 F.2d

1360 (5th Cir. 1986), cert, denied, 107 S. Ct. 948 (1987) (fact that employee made no
effort to communicate to the public was a factor in determination that speech at issue was

not of public concern); Linhart v. Glatfelter, 771 F.2d 1004 (7th Cir. 1985) {Connick test

necessitates inquiry into whether the speaker intended to bring matter to the attention of

the public); Zaky v. United States Veteran Administration, 605 F. Supp. 449, 456 (N.D.
Ind. 1984), affd, 793 F.2d 832 (7th Cir. 1986).

'°*461 U.S. at 148. Similarly, in the course of holding that the speech in Dun &
Bradstreet was not of public concern. Justice Powell emphasized the fact that the speech

was aimed at a hmited audience. See 472 U.S. at 762.

'°^"To presume that all matters which transpire within a government office are of

public concern would mean that virtually every remark—and certainly every criticism
directed at a public official—would plant the seed of a constitutional case." Connick, 461

U.S. at 149. See supra note 88 and accompanying text.

'"^Justice Brennan made this point in his dissent in Connick:
The Court's adoption of a far narrower conception of what subjects are of

public concern seems prompted by its fears that a broader view 'would mean

that virtually every remark—and certainly every criticism directed at a public
official—would plant the seed of a constitutional case.' . . .

. . . The proper means to ensure that the courts are not swamped with routine

employee grievances mischaracterized as First Amendment cases is not to restrict
artifically the concept of "pubhc concern," but to require that adequate weight

be given to the public's important interests in the efficient performance of

governmental functions and in preserving employee discipline and harmony



1987] NEW DIRECTIONS 789

White expressed the fear that to hold the speech at issue in that case

to be of pubhc concern ''would mean that virtually every remark—and
certainly every criticism directed at a pubhc official—would plant the
seed of a constitutional case."'°^ The speech was adjudged not to be

of pubhc concern and the problem was avoided. One difficulty with
this reasoning is that while its appHcation is probably relevant to ensuring

that government offices function effectively, it contravenes the very

purpose of New York Times. To apply Connick to defamation cases
and hold that "criticism directed at a pubhc official" receives reduced

first amendment protection''^ completely contradicts New York Times,
which after all was directed at protecting "vehement, caustic, and some-

times unpleasantly sharp attacks on government and public officials."'''

Moreover, courts seeking to avoid becoming deluged with employment

review cases will have great incentive to find the speech at issue in the

cases before them not to be of public concern, as this would discharge

them from having to consider the cases further. "^ Reported opinions

issued in the three years between Rosenbloom and Gertz indicate that

the courts were quite willing to find that speech was of public concern. "^

The mood of the Supreme Court, however, has clearly changed, and if future
cases follow the Court's suggestions as to a restrictive application of

the Connick analysis, a body of case law narrowly defining what is a
matter of public concern will be established, and the protection accorded

defendants in defamation cases is hkely to decrease.'"^

sufficient to achieve that end.

461 U.S. at 163 (Brennan, J., dissenting).

Other courts and commentators have also expressed the view that Connick represents

a restriction of the matters that will be held to be of public concern. See, e.g., Ferrara

V. Mills, 596 F. Supp. 1069 (S.D. Fla., 1984), affd, 781 F.2d 1508 (11th Cir. 1986);

Landrum v. Eastern Kentucky Univ., 578 F. Supp. 241 (E.D. Ky. 1984); Note, Connick
V. Myers: Narrowing the Free Speech Right of Public Employees, 33 Cath. U. L. Rev.

429 (1984).

"»461 U.S. at 149.

"°As Justice Brennan pointed out, the speech in Connick could certciinly have been taken

to be an effort at developing information and opinions regarding the performance of the

district attorney. 461 U.S. at 163. As such, the speech surely would have been protected

under the rationale of Garrison and Monitor Patriot. See supra notes 54-56 and accom-

panying text. See also Terrell v. University of Texas System PoHce, 792 F.2d 1360 (5th

Cir. 1986), cert, denied, 107 S. Ct. 948 (1987) (context of criticism directed at chief of

university poUce force indicated that speech was of "wholly intragovernmental concern"

and thus not of public concern.) Id. at 1363.

'"376 U.S. at 270.

"^See infra note 114.

"^See Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert
Welch, Inc., 54 Tex. L. Rev. 199, 206 (1976).

"'This danger is increased by the misapplication of the Connick analysis by some

courts. The Connick analysis consists of two distinct parts: first, the court determines if



790 INDIANA LA W REVIEW [Vol. 20:767

Perhaps this is what the Court had in mind in Dun & Bradstreet
and Philadelphia Newspapers. Some members of the Court have recently
expressed increased dissatisfaction with what they perceive to be the

excessive amount of protection accorded defendants in defamation cases.
For example, in Dun & Bradstreet Justice White and Justice Burger
advocated overruHng Gertz, based on their view that Gertz made it too
difficult for private plaintiffs to protect their reputations. Justice White

also wrote that he had "become convinced that the Court struck an
improvident balance in the New York Times case between the public's
interest in being fully informed about public officials and public affairs

and the competing interest of those who have been defamed in vindicating
their reputation. "^'^ Justice Burger, agreeing with Justice White's opinions

as to New York Times, expressed the novel view that, in a case to
which the New York Times "malice" standard applies, the jury should
be instructed "that malice may be found if the defendant is shown to
have published defamatory material which, in the exercise of reasonable

care, would have been revealed as untrue. "^'^ More recently Justice
Burger, in a dissent from denial of certiorari that was joined by Justice

Rehnquist, reaffirmed his view, first expressed in Dun & Bradstreet, that
New York Times "should be reexamined."''^

the speech at issue is of pubHc concern; second, and only if the speech is determined to

be of public concern, the court balances the employee's right to speak with the employer's

interest in running an efficient and harmonious workplace. Some courts, however, have
combined the two parts, and have considered the disruptive nature of the speech at issue

in the course of determining whether it is of public concern. See, e.g., Zaky v. United

States Veterans Administration, 793 F.2d 832 (7th Cir. 1986); Jurgensen v. Fairfax County,

745 F.2d 868 (4th Cir. 1984); Bowman v. Pulaski County Special School Dist., 723 F.2d
640 (8th Cir. 1983); Landrum v. Eastern Kentucky Univ., 578 F. Supp. 241 (E.D. Ky.
1984). If courts deciding cases involving disruptive speech feel that they must rule that

the speech is not of public concern in order to find for the employer, then once again

the danger exists that precedent will develop defining narrowly what matters are of public

concern.

"M72 U.S. at 767.
'''Id. at 764.

"'Coughhn V. Westinghouse Broadcasting and Cable, Inc., 106 S. Ct. 2927 (1986).

Although his views on these issues are not known. Justice Scalia has demonstrated a

tendency to decide against defendants in defamation cases. In Liberty Lobby, Inc. v.

Anderson, 746 F.2d 1563 (D.C. Cir. 1984), rev'd, 106 S. Ct. 2505 (1986), then-Judge Scalia

wrote an opinion holding that the rule requiring clear and convincing evidence of New
York Times "malice" did not apply at the summary judgment stage of a lawsuit, a

decision that was reversed by the Supreme Court. In Oilman v. Evans, 750 F.2d 970

(D.C. Cir. 1984), cert, denied, 471 U.S. 1127 (1985), he dissented from the majority's

characterization of one of the statements in the case as being a constitutionally protected

expression of opinion, caUing the speech a "classic and cooly crafted hbel." 750 F.2d at

1036. In Tavoulareas v. Piro, 759 F.2d 90 (D.C. Cir. 1985), rev'd, 817 F.2d 762

(D.C. Cir. 1987) (en banc), he was in the majority reversing, as to some defendants,

a judgment notwithstanding the verdict that the district court had entered in the defendants'

favor.



1987] NEW DIRECTIONS 791

The effect of Gertz was to place constitutional limits on all defa-

mation actions. Thus a private figure complaining of speech completely

unrelated to the goal of New York Times, that is, a citizenry informed
as to the affairs of government, had at minimum to show fault on the
part of the defendant. A public figure or public official complaining
of such speech had to show New York Times "malice''. In addition,
such a public figure could be one far removed from the archetypical

public figure, involved in the resolution of public questions, whose presence

in Butts prompted the Court to extend the New York Times privilege
beyond public officials; •'* a public figure could include a weight-

lifting coach, "^ a bellydancer,'^^ or a sports agent. ^^^ Perhaps the Court

has decided to put a stop to the gradual expansion that has seen the

New York Times privilege applied to cases involving issues other than
those which formed the basis for the development of the privilege. As
Justice Rehnquist wrote in Bose Corporation v. Consumers Union of
United States, Inc.,^^^ "[i]t is ironic . . . that a constitutional principle

which originated . . . because of the need for freedom to criticize the

conduct of public officials is applied here to a magazine's false statements

about a commercial loudspeaker system. "^^^ p^^ analysis which tests the

nature of the speech in defamation cases may provide the Court with
a tool with which to sharpen the analysis in these cases and make certain
that constitutional protection is not applied in cases unrelated to the

goals of New York Times. It bears repeating that in Philadelphia News-
papers Justice O'Connor wrote that '*the constitutional requirements do
not necessarily force any change in at least some of the features of the

common-law landscape" where a private figure complains of speech of
private concern. '^^ One wonders, however, at what price a more precise
analysis will be obtained.

"^"Butts was the athletic director of the University of Georgia and had overall

responsibility for the administration of its athletic program." 388 U.S. at 135. Butts was

decided with Associated Press v. Walker, 388 U.S. 130 (1967), in which the plaintiff was

a retired general who had been actively involved in issues relating to federal efforts to
desegregate southern schools. Both plaintiffs, therefore, fit well into the rationale given by Chief

Justice Warren for extending the New York Times privilege to public figures, 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." Id. at 163-64. (Warren, C.J.,

concurring). See Schauer, supra note 59, at 914-17; Kalven, The Reasonable Man and
the First Amendment: Hill, Butts, and Walker, 1967 Sup. Ct. Rev. 267, 287-90.

"'Hoffman v. Washington Post Co., 433 F. Supp. 600 (D.D.C. 1977), aff'd, 578

F.2d 442 (D.C. Cir. 1978).

'^°James v. Gannett Co., Inc., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834

(1976).

'2'Woy V. Turner, 573 F. Supp. 35 (N.D. Ga. 1983).

'"466 U.S. 485 (1984).

'"M at 515.
'^106 S. Ct. at 1563.



792 INDIANA LAW REVIEW [Vol. 20:767

V. Conclusion

Uncertainty has attended first amendment defamation law since
New York Times, but Gertz had seemed to settle a number of questions
and had been reliable authority in the area for over a decade. Now the
Court has injected a new set of questions and considerations into defama-
tion cases, and the law is once more in transition. Moreover, the vital
question posed in Dun & Bradstreet, what constitutes speech on a
matter of public concern, may prove to be very difficult to answer
correctly. Courts applying Connick have often used improper consid-

erations in deciding whether or not speech is of public concern, and

the Connick analysis itself seems ill-suited to producing a definition of

speech of public concern that is consistent with the purposes of New
York Times. More importantly, the Supreme Court has not promulgated
any guidelines to aid lower courts and litigants in seeking to determine

whether speech is of public concern. Indeed, it may be that Justice
Powell was correct when he wrote in Gertz that the question is just too
difficult to handle. '^^ The courts and commentators have over the years

suggested various answers, without arriving at anything resembling a

consensus. '2^ Perhaps the Court is to be commended for its willingness

^^^See supra notes 26-29 and accompanying text. Justice Powell's statement was

criticized by Justice Brennan, who wrote:
I reject the argument that my Rosenbloom view improperly commits to judges
the task of determining what is and what is not an issue of 'general or public

interest.' I noted in Rosenbloom that this task would not always be easy. . . .

But surely the courts, the ultimate arbiters of all disputes concerning clashes of

constitutional values, would only be performing one of their traditional functions

in undertaking this duty.

418 U.S. at 368-69 (Brennan, J., dissenting). See BeVier, The First Amendment and
Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 Stan. L.
Rev. 299, 357-58 (1978) (Court's decisions in obscenity cases have required line-drawing

at least as difficult as that involved in deciding whether speech is of public concern).

^^See T. Emerson, supra note 99 at 541 ("Efforts to define the concept 'public issue'

in the field of libel law have been . . . fruitless"). Perhaps the most well-known attempt

at an answer is that of Alexander Meiklejohn. Meiklejohn's theory, grounded on "the

basic American agreement that public issues shall be decided by universal suffrage," is

that the first amendment grants absolute protection to all speech which citizens need to

hear so that they may properly govern themselves. A. Meiklejohn, supra note 70 at 27.
This "pubhc speech," Meiklejohn wrote, is that "which bears, directly or indirectly, upon

issues with which voters have to deal . . . ." Id. at 94. Meiklejohn described as having

"governing importance" education in all its phases, the achievements of philosophy and

the sciences, and literature and the arts. A. Meiklejohn, supra note 56 at 257. Professor

Chafee was of the view that the line that Meiklejohn had drawn between public speech

and private speech was "extremely blurred," Chafee, Book Review, 62 Harv. L. Rev.
891, 899 (1949), and Professor Emerson concluded that Meiklejohn had failed to provide

a satisfactory definition of pubhc speech. Emerson, supra note 99, at 541. Judge Bork,

while agreeing with Meiklejohn that the first amendment only protects speech of governing

importance, offered a narrower definition of that speech than did Meiklejohn; in Bork's



1987] NEW DIRECTIONS 793

to try to find the answer. As it stands now, however, the Court's latest

view, only "explicitly and predominantly political speech" enjoys first amendment pro-

tection. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1,
26 (1971).

Meiklejohn's concerns echo those expressed in colonial times by William Holland and James

Alexander, who, according to Professor Levy,

stressed the necessity and right of the people to be informed of the conduct of

their governors so as to shape their own judgments on "Publick Matters" and
be qualified to chose [sic] their representatives wisely. No one before had related
the electoral process to freedom of expression—a significant advance in political
and libertarian theory. The first essayist [Alexander], in depicting the wholesome

influence of liberty of the press upon the formation of public opinion, also

propounded the novel thesis that the "Bulk of Mankind" were quite capable of

governing themselves .... The second essayist, in championing the "salutory

effects" of "Freedom of Debate," wisely suggested that the public should be

exposed to every kind of controversy, in philosophy, history, science, religion,

and literature, as well as in politics, because in the course of "examining,

comparing, forming opinions, defending them, and sometimes recanting them,"

the public would acquire a "Readiness of Judgment and Passion for Truth."

L. Levy, Legacy of Supression 137-38 (1960). Similarly, the members of the Continental

Congress expressed the view that a free press was vital to "the advancement of truth,

science, morality and arts in general." I Journals of Congress 57 (1800).

Dean Prosser defined matters of public concern as "those matters which are of

legitimate concern to the community as a whole because they materially affect the interests

of all the community." W. Prosser, The Law of Torts § 110 at 812 (3rd. Ed. 1964).
Professor Pedrick was of the view that the category included "all those matters as to

which there is some element of public participation." Pedrick, Freedom of the Press and

the Law of Libel: The Modern Revised Translation, 49 Corn. L. Q. 581, 592 (1964).
The Restatement stated that

[t]ypical facts which, as matters of public concern, may be commented upon
. . . are the public acts and qualifications of public officers and candidates for

office . . . the management of educational, charitable and religious institutions

. . . literary, artistic and scientific productions . . . and the conduct of persons

who, by special appeal or otherwise, have offered their conduct or product to

the public for approval . . . ."

Restatement of Torts § 606 comment a (1938). Dean Green declined to venture a
definition, writing that "the term ... is not definable except in the ultimate determination

in the decision of the majority of the judges who have the jurisdictional power to make
the decision in a particular case." Green, supra note 18 at 352-53 n.47.

Members of the Court have expressed their views on the matter as well. In Thornhill

v, Alabama, 310 U.S. 88 (1940), Justice Murphy wrote that "[f]reedom of discussion, if
it would fulfill its historic function in this nation, must embrace all issues about which

information is needed or appropriate to enable the members of society to cope with the

exigencies of their period." Id. at 102. Justice Douglas expressed the view that freedom

of speech should apply to speech "at the lower levels of science, the humanities, the

professions, agriculture, and the like," Rosenblatt v. Baer, 383 U.S. 75, 90 (1966) (Douglas,

J., dissenting). Justice Douglas further wrote that " 'public affairs' includes a great deal

more than merely political affairs. Matters of science, economics, business, art, literature,

etc., are all matters of interest to the general public. Indeed, any matter of sufficient

general interest to prompt media coverage may be said to be a public affair." Gertz v.
Robert Welch, Inc., 418 U.S. 323, 357-58 n.6 (Douglas, J., dissenting). In Time, Inc. v.



794 INDIANA LAW REVIEW [Vol. 20:767

foray into first amendment defamation law seems to have resulted in

more problems than solutions.

Hill, 385 U.S. 374 (1967), Justice Brennan expressed the view that '*[t]he guarantees for

speech and press are not the preserve of political expression or comment upon public
affairs," and stated that the Court had "no doubt" that the opening of a new play was

a matter of public interest. Id. at 388. Justice Marshall, however, felt that courts should

not be in the business of passing "on the legitimacy of interest in a particular event or

subject; what information is relevant to self-government," since "all human events are
arguably within the area of 'public or general concern.' " Rosenbloom v. Metromedia,

Inc., 403 U.S. 29, 79 (1971) (Marshall, J., dissenting).