Law & the Media in Texas — Libel Cases


Libel Cases

Americans didn’t start out suing over what appeared in the press. Our ancestors had reason to appreciate open and robust debate. The John Peter Zenger case of 1735 demonstrated the dislike for seditious libel. After Zenger, Americans have been brought into court for criticizing the government but thank goodness that has occurred only rarely.

Many states, including Texas, had criminal libel statutes. But in 1964 the United States Supreme Court decision in Garrison v. Louisiana ended criminal libel. Americans never warmed to the concept anyway. Its potential for abuse was great.

The Supreme Court was not involved in First Amendment cases until fairly recent times. In Gitlow v. New York in 1925 the court said that the Fourteenth Amendment made the First Amendment applicable to the states. The first time the Supreme Court set aside a state law involving the First Amendment was when it declared red flag statutes unconstitutional in Stromberg v. California in 1931. Also in 1931 the Supreme Court ruled by 5 to 4 in Near v. Minnesota that a state law used to close down a newspaper was unconstitutional.

Civil libel grew slowly and unevenly. Civil libel has its origins in the common law. As cases were decided, that established precedent for other cases. For the most part the actual statutory laws related to civil libel are procedural. They differ from state to state.

The defamation claimed in civil libel puts one person or legal entity against another person or entity such as a newspaper, radio or television station. The state is in no way a party to the action.

The person who believes he or she has been damaged may bring a case in civil court via a petition. That is called a suit.

Because libel has grown out of the common law, a most important consideration in a libel action is the decision by appellate courts in previous cases. Before 1964 those decisions varied greatly from state to state. Not that many cases were brought. The United States Supreme Court rarely became involved. Suits such as John Henry Faulk’s against AWARE, Inc. during the McCarthy Era were more what we thought libel ought to be—a protection against unwarranted attacks.

New York Times v. Sullivan

Libel law changed forever in 1964 with the United States Supreme Court decision in New York Times v. Sullivan. That decision and others by the Warren Court established a clear concept of libel and one that guaranteed press freedom without eliminating libel entirely.

The Supreme Court held in the Times case that the Constitution, specifically the First Amendment, prohibits a public official from recovering damages for a defamatory falsehood related to his or her official conduct. The court included one qualification: malice, or actual malice. The definition given for actual malice was “with knowledge that it (the material in question) was false or with reckless disregard of whether if was false or not.”

The Supreme Court had no other choice in that case. Deciding otherwise would have shackled the press at the very time public debate was needed on important social issues. In the Times case the issue was segregation. Later it was to be the Vietnam War in the Pentagon Papers case, then President Richard Nixon’s right to withhold tapes and so on. Any other decision by the Supreme Court in the Times case would have changed history—and not for the better.

After establishing this new standard for public officials, the Supreme Court used other decisions to limit suits brought by public figures and private citizens.

Two cases were decided in one opinion in 1967. They were Associated Press v. Walker and Curtis Publishing Company v. Butts. In that decision the Supreme Court brought public figures under the umbrella it had created in Sullivan.

The court said that a public figure cannot collect damages unless malice is proved. The court established a guideline, “accepted publishing standards,” by which reckless disregard might be judged.

In 1971 in Rosenbloom v. Metromedia, Inc. the Supreme Court held that a private citizen involved in an event of public interest must prove malice to collect in a libel action.

A Change in the Court

But the era when the court was know as the Warren Court -- named for Chief Justice Earl Warren -- ended. Warren Burger replaced Earl Warren as chief justice and new appointees went on the court. For reasons that remain unclear, the new court chose to undo what the previous court had done regarding libel.

Perhaps one reason the Burger court began changing the law was that justices came to agree with many in the public that the press had too much power. Whatever the intent, the court turned its back on a tradition of free inquiry and open debate that had been developing in America. The tradition had begun with the John Peter Zenger trial and had continued in decisions such as Near v. Minnesota, New York Times v. Sullivan, Garrison v. Louisiana, etc.

The Gertz Case

In 1974 in Gertz v. Robert Welch the court said that a private citizen does not have to meet the actual malice standard of Times v. Sullivan to recover damages. A private citizen may sue for actual injury, which the court said includes impairment of reputation, personal humiliation and mental anguish, as well as financial loss. To collect, the private citizen must only prove negligence.

Still, the court said, public figures must prove malice—knowing and reckless falsehood—before they can collect punitive damages.

The court ruled that Gertz applies only to issues of public concern, not to libel cases arising from purely private matters. The court left it up to juries to determine when a person who is a public figure acted as a public figure and when he or she acted as a private citizen.

The court established a standard for determining whether a person is a public figure. It said:

Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life.

The withdrawal from Times v. Sullivan continued in 1976 in Time v. Firestone. The Supreme Court said that Mary Alice Firestone, who was involved in a sensational divorce trial, remained a private citizen because she was drawn into the public forum largely against her will.

Therefore, since she was a private citizen, the burden was put on the defendant publisher, Time magazine, to establish that information it had reported about her was true. If the report was false the publisher was not protected.

Before this ruling, the public official/public figure/private individual rule established by the Warren court required that malice had to be proved by the plaintiff to win a libel judgment.

Gertz and Firestone dismantled the structure of libel that the Supreme Court had so carefully constructed under Chief Justice Warren. Other cases since then have also been decided in a way detrimental to the media.

Other Cases

In Herbert v. Lando in 1979 the Supreme Court ruled that public figures suing for libel may inquire into a journalist’s state of mind and the editorial process behind the statements at issue. Specifically the court said that former Army officer Anthony Herbert had the right to review outtakes of CBS film footage.

In Hutchinson v. Proxmire, also decided in 1979, the Supreme Court established a precedent that was to have far-reaching implications in libel law. The background: Ronald Hutchinson, a research psychologist, had been given a golden fleece award by U.S. Senator William Proxmire. The award was designed to expose wasteful spending in government. Proxmire made fun of the $500,000 grant Hutchinson obtained in federal funds to study why monkeys clench their jaws. Hutchinson responded by suing Proxmire for libel, and the Supreme Court held with Hutchinson.

A significant factor in the case was Footnote Nine. In that footnote, Chief Justice Warren Burger questioned the use of summary judgments in libel cases. The summary judgment is a traditional pretrial procedure and one that can be vital in a libel action.

The potential of a summary judgment in a libel action make it possible for lawyers representing media defendants to go into court at the start of a trial and ask the judge to throw out cases that fit a pattern already decided by appellate courts. The summary judgment is particularly effective in suits that seem to have little merit.

Since the pattern of libel had already been drastically changed by the Supreme Court in Gertz and Firestone, more and more cases were going to trial that previously might have been dismissed by judges as being without merit. The trials were necessary because, in effect, each case presented an opportunity to establish new law. The problem for journalists was that the decisions were now being made by jurors based on definitions of law and libel that, at best, were difficult to sort out.

Footnote Nine made the transformation of libel in America almost complete. Put another way, because of the decisions in several Supreme Court cases over the years, we are almost back where we started with libel. The effect is that many situations involving libel don’t have clear-cut precedent to rely on.


A good example of that is Milkovich v. Lorain Journal, decided in 1990. The Supreme Court in a 7-2 decision in an opinion written by Chief Justice William H. Rehnquist ruled that the First Amendment does not automatically shield expressions of opinion from being found libelous.

The suit was brought in 1975 by Michael Milkovich Sr. against the Lake County (Ohio) News-Herald (then owned by the Lorain Journal) over a column by sportswriter J. Theodore Diadiun.

The Supreme Court said that newspaper columns and other forms of commentary may be libelous if they “imply an assertion of objective fact” that the plaintiff can prove is false.

Justice Rehnquist wrote:

If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.”

Justices William J. Brennan and Thurgood Marshall dissented.


Here are citations for the libel cases referred to:

New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, March 9, 1964

Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 3 L.Ed.2d 125, November 23, 1964.

Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, June 12, 1967.

Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, June 7, 1971.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 LEd2d 789, June 25, 1974.

Time v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154, March 2, 1976. See Time, March 15, 1976.

Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115, April 18, 1979.

Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411, 1979.

Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed2d 1, June 21, 1990.

Falwell v. Hustler

A most favorable ruling by the U.S. Supreme Court came in a suit brought by Jerry Falwell against Larry Flynt and Hustler magazine. The case was decided by the court in 1988—two years before the Milkovich decision—and at the time seemed to promise good things ahead.

Hustler ran a takeoff of a Campari Liqueur advertisement with Jerry Falwell as the subject. The ad ran twice, in November 1983 and in March 1984. Falwell sued in federal court.

A federal court jury found the ad was too outrageous to be believed and could not be the basis of a libel action since Falwell’s reputation was not damaged. But the jury awarded Falwell $200,000—$100,000 to compensate for “intentional infliction of emotional distress” and $100,000 in punitive damages.

The Supreme Court overturned the verdict. Chief Justice William H. Rehnquist wrote the opinion for the court in a unanimous decision.

Rehnquist said that the First Amendment protects even “vehement, caustic and sometimes unpleasantly sharp attacks” and that freedom of expression needs what he termed “breathing space.” He said that the jury had decided that the ad parody was not factual. Therefore, no reckless disregard could exist.

Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41, February 24, 1988.