Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593, 1985 U.S. LEXIS 103, 53 U.S.L.W. 4866, 11 Media L. Rep. (BNA) 2417

• Court: Supreme Court of the United States
• Decided: June 26, 1985
• Docket: 83-18
• Status: Published

Opinions

Justice Powell

announced the judgment of the Court and delivered an opinion, in which Justice Rehnquist and Justice O’Connor joined.

In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held 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 concern. More specifically, we held that in these circumstances the First Amendment prohibited awards of presumed and punitive damages for false and defamatory statements unless the plaintiff shows “actual malice,” that is, knowledge of falsity or reckless disregard for the truth. The question presented in this case is whether this rule of Gertz applies when the false and defamatory statements do not involve matters of public concern.

HH

Petitioner Dun & Bradstreet, a credit reporting agency, provides subscribers with financial and related information about businesses. All the information is confidential; under the terms of the subscription agreement the subscribers may not reveal it to anyone else. On July 26, 1976, petitioner sent a report to five subscribers indicating that respondent, a construction contractor, had filed a voluntary petition for bankruptcy. This report was false and grossly misrepresented respondent’s assets and liabilities. That same day, while discussing the possibility of future financing with its bank, respondent’s president was told that the bank had received the defamatory report. He immediately called petitioner’s regional office, explained the error, and asked for a correction. In addition, he requested the names of the firms that had received the false report in order to assure them that the company was solvent. Petitioner promised to look into the matter but refused to divulge the names of those who had received the report.

After determining that its report was indeed false, petitioner issued a corrective notice on or about August 3, 1976, to the five subscribers who had received the initial report. The notice stated that one of respondent’s former employees, not respondent itself, had filed for bankruptcy and that respondent “continued in business as usual.” Respondent told petitioner that it was dissatisfied with the notice, and it again asked for a list of subscribers who had seen the initial report. Again petitioner refused to divulge their names.

Respondent then brought this defamation action in Vermont state court. It alleged that the false report had injured its reputation and sought both compensatory and punitive damages. The trial established that the error in petitioner’s report had been caused when one of its employees, a 17-year-old high school student paid to review Vermont bankruptcy pleadings, had inadvertently attributed to respondent a bankruptcy petition filed by one of respondent’s former employees. Although petitioner’s representative testified that it was routine practice to check the accuracy of such reports with the businesses themselves, it did not try to verify the information about respondent before reporting it.

After trial, the jury returned a.verdiet in favor of respondent and awarded $50,000 in compensatory or presumed damages and $300,000 in punitive damages. Petitioner moved for a new trial. It argued that in Gertz v. Robert Welch, Inc., supra, at 349, this Court had ruled broadly that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth,” and it argued that the judge’s instructions in this case permitted the jury to award such damages on a lesser showing. The trial court indicated some doubt as to whether Gertz applied to “non-media cases,” but granted a new trial “[bjecause of . . . dissatisfaction with its charge and . . . conviction that the interests of justice require[d]” it. App. 26.

The Vermont Supreme Court reversed. 143 Vt. 66, 461 A. 2d 414 (1983). Although recognizing that “in certain instances the distinction between media and nonmedia defendants may be difficult to draw,” the court stated that “no such difficulty is presented with credit reporting agencies, which are in the business of selling financial information to a limited number of subscribers who have paid substantial fees for their services.” Id., at 73, 461 A. 2d, at 417. Relying on this distinguishing characteristic of credit reporting firms, the court concluded that such firms are not “the type of media worthy of First Amendment protection as contemplated by New York Times [Co. v. Sullivan, 376 U. S. 254 (1964),] and its progeny.” Id., at 73-74, 461 A. 2d, at 417-418. It held that the balance between a private plaintiff’s right to recover presumed and punitive damages without a showing of special fault and the First Amendment rights of “nonmedia” speakers “must be struck in favor of the private plaintiff defamed by a nonmedia defendant.” Id., at 75, 461 A. 2d, at 418. Accordingly, the court held “that as a matter of federal constitutional law, the media protections outlined in Gertz are inapplicable to nonmedia defamation actions.” Ibid.

Recognizing disagreement among the lower courts about when the protections of Gertz apply,¹ we granted certiorari. 464 U. S. 959 (1983). We now affirm, although for reasons different from those relied upon by the Vermont Supreme Court.

II

As an initial matter, respondent contends that we need not determine whether Gertz applies in this case because the instructions, taken as a whole, required the jury to find “actual malice” before awarding presumed or punitive damages.² The trial court instructed the jury that because the report was libelous per se, respondent was not required “to prove actual damages . . . since damage and loss [are] conclusively presumed.” App. 17; accord, id., at 19. It also instructed the jury that it could award punitive damages only if it found “actual malice.” Id., at 20. Its only other relevant instruction was that liability could not be established unless respondent showed “malice or lack of good faith on the part of the Defendant.” Id., at 18. Respondent contends that these references to “malice,” “lack of good faith,” and “actual malice” required the jury to find knowledge of falsity or reckless disregard for the truth — the “actual malice” of New York Times Co. v. Sullivan, 376 U. S. 254 (1964)—before it awarded presumed or punitive damages.

We reject this claim because the trial court failed to define any of these terms adequately. It did not, for example, provide the jury with any definition of the term “actual malice.” In fact, the only relevant term it defined was simple “malice.”³ And its definitions of this term included not only the New York Times formulation but also other concepts such as “bad faith” and “reckless disregard of the [statement’s] possible consequences.” App. 19. The instructions thus permitted the jury to award presumed and punitive damages on a lesser showing than “actúal malice.” Consequently, the trial court’s conclusion that the instructions did not satisfy Gertz was correct, and the Vermont Supreme Court’s determination that Gertz was inapplicable was necessary to its decision that the trial court erred in granting the motion for a new trial. We therefore must consider whether Gertz applies to the case before us.

“If you find that the Defendant acted in a bad faith towards the Plaintiff in publishing the Erroneous Report, or that Defendant intended to injure the Plaintiff in its business, or that it acted in a willful, wanton or reckless disregard of the rights and interests of the Plaintiff, the Defendant has acted maliciously and the privilege is destroyed. Further, if the Report was made with reckless disregard of the possible consequences, or if it was made with the knowledge that it was false or with reckless disregard of its truth or falsity, it was made with malice.” App. 18-19 (emphasis added).

Ill

In New York Times Co. v. Sullivan, supra, the Court for the first time held that the First Amendment limits the reach of state defamation laws. That case concerned a public official’s recovery of damages for the publication of an advertisement criticizing police conduct in a civil rights demonstration. As the Court noted, the advertisement concerned “one of the major public issues of our time.” Id., at 271. Noting that “freedom of expression upon public questions is secured by the First Amendment,” id., at 269 (emphasis added), and that “debate on public issues should be uninhibited, robust, and wide-open,” id., at 270 (emphasis added), the Court held that a public official cannot recover damages for defamatory falsehood unless he proves that the false statement was made with “‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” id., at 280. In later cases, all involving public issues, the Court extended this same constitutional protection to libels of public figures, e. g., Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and in one case suggested in a plurality opinion that this constitutional rule should extend to libels of any individual so long as the defamatory statements involved a “matter of public or general interest,” Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971) (opinion of Brennan, J.).

In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the protections of New York Times did not extend as far as Rosenbloom suggested. Gertz concerned a libelous article appearing in a magazine called American Opinion, the monthly outlet of the John Birch Society. The article in question discussed whether the prosecution of a policeman in Chicago was part of a Communist campaign to discredit local law enforcement agencies. The plaintiff, Gertz, neither a public official nor a public figure, was a lawyer tangentially involved in the prosecution. The magazine alleged that he was the chief architect of the “frame-up” of the police officer and linked him to Communist activity. Like every other case in which this Court has found constitutional limits to state defamation laws, Gertz involved expression on a matter of undoubted public concern.

In Gertz, we held that the fact that expression concerned a public issue did not by itself entitle the libel defendant to the constitutional protections of New York Times. These protections, we found, were not “justified solely by reference to the interest of the press and broadcast media in immunity from liability.” 418 U. S., at 343. Rather, they represented “an accommodation between [First Amendment] con-cernís] and the limited state interest present in the context of libel actions brought by public persons.” Ibid. In libel actions brought by private persons we found the competing interests different. Largely because private persons have not voluntarily exposed themselves to increased risk of injury from defamatory statements and because they generally lack effective opportunities for rebutting such statements, id., at 345, we found that the State possessed a “strong and legitimate . . . interest in compensating private individuals for injury to reputation.” Id., at 348-349. Balancing this stronger state interest against the same First Amendment interest at stake in New York Times, we held that a State could not allow recovery of presumed and punitive damages absent a showing of “actual malice.” Nothing in our opinion, however, indicated that this same balance would be struck regardless of the type of speech involved.⁴

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We have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. To make this determination, we must employ the approach approved in Gertz and balance the State’s interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression. This state interest is identical to the one weighed in Gertz. There we found that it was “strong and legitimate.” 418 U. S., at 348. A State should not lightly be required to abandon it,

“for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. . . .’ Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (concurring opinion).” Id., at 341.

The First Amendment interest, on the other hand, is less important than the one weighed in Gertz. We have long recognized that not all speech is of equal First Amendment importance.⁵ It is speech on “‘matters of public concern’” that is “at the heart of the First Amendment’s protection.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978), citing Thornhill v. Alabama, 310 U. S. 88, 101 (1940). As we stated in Connick v. Myers, 461 U. S. 138, 145 (1983), this “special concern [for speech on public issues] is no mystery”:

“The First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957); New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964). ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values,”’ and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U. S. 886, 913 (1982); Carey v. Brown, 447 U. S. 455, 467 (1980).”

In contrast, speech on matters of purely private concern is of less First Amendment concern. Id., at 146-147. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent.⁶ In such a case,

“[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press. The facts of the present case are wholly without the First Amendment concerns with which the Supreme Court of the United States has been struggling.” Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 366, 568 P. 2d 1359, 1363 (1977).

Accord, Rowe v. Metz, 195 Colo. 424, 426, 579 P. 2d 83, 84 (1978); Denny v. Mertz, 106 Wis. 2d 636, 661, 318 N. W. 2d 141, 153, cert. denied, 459 U. S. 883 (1982).

While such speech is not totally unprotected by the First Amendment, see Connick v. Myers, supra, at 147, its protections are less stringent. In 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. 418 U. S., at 349. This interest, however, is “substantial” relative to the incidental effect these remedies may have on speech of significantly less constitutional interest. The rationale of the common-law rules has been the experience and judgment of history 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.” W. Prosser, Law of Torts § 112, p. 765 (4th ed. 1971); accord, Rowe v. Metz, supra, at 425-426, 579 P. 2d, at 84; Note, Developments in the Law—Defamation, 69 Harv. L. Rev. 875, 891-892 (1956). As a result, courts for centuries have allowed juries to presume that some damage occurred from many defamatory utter-anees and publications. Restatement of Torts § 568, Comment b, p. 162 (1938) (noting that Hale announced that damages were to be presumed for libel as early as 1670). This rule furthers the state interest in providing remedies for defamation by ensuring that those remedies are effective. In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages — even absent a showing of “actual malice.”⁷

V

The only remaining issue is whether petitioner’s credit report involved a matter of public concern. In a related context, we have held that “[w]hether . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context ... as revealed by the whole record.” Connick v. Myers, supra, at 147-148. These factors indicate that petitioner’s credit report concerns no public issue.⁸ It was speech solely in the individual interest of the speaker and its specific business audience. Cf. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 561 (1980). This particular interest warrants no special protection when — as in this case — the speech is wholly false and clearly damaging to the victim’s business reputation. Cf. id., at 566; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772 (1976). Moreover, since the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any “strong interest in the free flow of commercial information.” Id., at 764. There is simply no credible argument that this type of credit reporting requires special protection to ensure that “debate on public issues [will] be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S., at 270.

In addition, the speech here, like advertising, is hardy and unlikely to be deterred by incidental state regulation. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772. It is solely motivated by the desire for profit, which, we have noted, is a force less likely to be deterred than others. Ibid. Arguably, the reporting here was also more objectively verifiable than speech deserving of greater protection. See ibid. In any case, the market provides a powerful incentive to a credit reporting agency to be accurate, since false credit reporting is of no use to creditors. Thus, any incremental “chilling” effect of libel suits would be of decreased significance.⁹

I — i >

We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of “actual malice” does hot violate the First Amendment when the defamatory statements do not involve matters of public concern. Accordingly, we affirm the judgment of the Vermont Supreme Court.

It is so ordered.

1 Compare Denny v. Mertz, 106 Wis. 2d 636, 318 N. W. 2d 141, cert. denied, 459 U. S. 883 (1982) (Gertz inapplicable to private figure suits against nonmedia defendants); Stuempges v. Parke, Davis & Co., 297 N. W. 2d 252 (Minn. 1980) (same); Rowe v. Metz, 195 Colo. 424, 579 P. 2d 83 (1978) (same); and Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 568 P. 2d 1359 (1977) (same), with Antwerp Diamond Exchange, Inc. v. Better Business Bureau, 130 Ariz. 523, 637 P. 2d 733 (1981) (Gertz applicable in such situations); and Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A. 2d 688 (1976) (same).

2 Respondent also argues that petitioner did not seek the protections outlined in Gertz before the jury instructions were given and that the issue therefore was not preserved for review. Since the Vermont Supreme Court considered the federal constitutional issue properly presented and decided it, there is no bar to our review. See Orr v. Orr, 440 U. S. 268, 274-275 (1979).

3 The full instruction on malice reads as follows:

4 The dissent states that “[a]t several points the Court in Gertz makes perfectly clear [that] the restrictions of presumed and punitive damages were to apply in all cases.” Post, at 785, n. 11. Given the context of Gertz, however, the Court could have made “perfectly clear” only that these restrictions applied in cases involving public speech. In fact, the dissent itself concedes that “Gertz . . . focused largely on defining the circumstances under which protection of the central First Amendment value of robust debate of public issues should mandate plaintiffs to show actual malice to obtain a judgment and actual damages ....” Post, at 777 (original emphasis).

The dissent also incorrectly states that Gertz “specifically held,” post, at 779, 793, both “that the award of presumed and punitive damages on less than a showing of actual malice is not a narrowly tailored means to achieve the legitimate state purpose of protecting the reputation of private persons . . .,” post, at 779, and that “unrestrained presumed and punitive damages were ‘unnecessarily’ broad ... in relation to the legitimate state interests,” post, at 793-794. Although the Court made both statements, it did so only within the context of public speech. Neither statement controls here. What was “not . . . narrowly tailored” or was “‘unnecessarily’ broad” with respect to public speech is not necessarily so with respect to the speech now at issue. Properly understood, Gertz is consistent with the result we reach today.

5 This Court on many occasions has recognized that certain kinds of speech are less central to the interests of the First Amendment than others. Obscene speech and “fighting words” long have been accorded no protection. Roth v. United States, 354 U. S. 476, 483 (1957); Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942); cf. Harisiades v. Shaughnessy, 342 U. S. 580, 591-592 (1952) (advocating violent overthrow of the Government is unprotected speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931) (publication of troopship sailings during wartime may be enjoined). In the area of protected speech, the most prominent example of reduced protection for certain kinds of speech concerns commercial speech. Such speech, we have noted, occupies a “subordinate position in the scale of First Amendment values.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978). It also is more easily verifiable and less likely to be deterred by proper regulation. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772 (1976). Accordingly, it may be regulated in ways that might be impermissible in the realm of noncommercial expression. Ohralik, supra, at 456; Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 562-563 (1980).

Other areas of the law provide further examples. In Ohralik we noted that there are “[njumerous examples ... of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers’ threats of retaliation for the labor activities of employees.” 436 U. S., at 456 (citations omitted). Yet similar regulation of political speech is subject to the most rigorous scrutiny. See Brown v. Hartlage, 456 U. S. 45, 52-53 (1982); New York Times Co. v. Sullivan, 376 U. S. 254, 279, n. 19 (1964); Buckley v. Valeo, 424 U. S. 1, 14 (1976). Likewise, while the power of the State to license lawyers, psychiatrists, and public school teachers — all of whom speak for a living — is unquestioned, this Court has held that a law requiring licensing of union organizers is unconstitutional under the First Amendment. Thomas v. Collins, 323 U. S. 516 (1945); see also Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971) (opinion of Brennan, J.) (“the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern”).

6 As one commentator has remarked with respect to “the case of a commercial supplier of credit information that defames a person applying for credit” — the case before us today — “If the first amendment requirements outlined in Gertz apply, there is something clearly wrong with the first amendment or with Gertz.” Shiffrin, The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment, 78 Nw. U. L. Rev. 1212, 1268 (1983).

7 The dissent, purporting to apply the same balancing test that we do today, concludes that even speech on purely private matters is entitled to the protections of Gertz. Post, at 786. Its “balance,” however, rests on a misinterpretation. In particular, the dissent finds language in Gertz that, it believes, shows the State’s interest to be “irrelevant.” See post, at 794. 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 circumstances. 418 U. S., at 349. 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.

The dissent’s “balance,” moreover, would lead to the protection of all libels — no matter how attenuated their constitutional interest. If the dissent were the law, a woman of impeccable character who was branded a “whore” by a jealous neighbor would have no effective recourse unless she could prove “actual malice” by clear and convincing evidence. This is not malice in the ordinary sense, but in the more demanding sense of New York Times. The dissent would, in effect, constitutionalize the entire common law of libel.

8 The dissent suggests that our holding today leaves all credit reporting subject to reduced First Amendment protection. This is incorrect. The 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. We also do not hold, as the dissent suggests we do, post, at 787, that the report is subject to reduced constitutional protection because it constitutes economic or commercial speech. We discuss such speech, along with advertising, only to show how many of the same concerns that argue in favor of reduced constitutional protection in those areas apply here as well.

9 The Court of Appeals for the Fifth Circuit has noted that, while most States provide a qualified privilege against libel suits for commercial credit reporting agencies, in those States that do not there is a thriving credit reporting business and commercial credit transactions are not inhibited. Hood v. Dun & Bradstreet, Inc., 486 F. 2d 25, 32 (1973), cert. denied, 415 U. S. 985 (1974). The court cited an empirical study comparing credit transactions in Boise, Idaho, where there is no privilege, with those in Spokane, Washington, where there is one. 486 F. 2d, at 32, and n. 18.