| Time, Inc. v. Firestone
(No. 74-944)
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| Syllabus
| Opinion
[ Rehnquist ] | Concurrence
[ Powell ] | Dissent
[ Brennan ] | Dissent
[ White ] | Dissent
[ Marshall ] |
| HTML version
PDF version | HTML version
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Time, Inc. v. Firestone
CERTIORARI TO THE SUPREME COURT OF FLORIDA
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins, concurring.
A clear majority of the Court adheres to the principles of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). But it is evident from the variety of views expressed that perceptions differ as to the proper application of such principles to this bizarre case. In order to avoid the appearance of fragmentation of the Court on the basic principles involved, I join the opinion of the Court. I add this concurrence to state my reaction to the record presented for our review.
In Gertz, we held that,
so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.
Id. at 347. Thus, while a State may elect to hold a publisher to a lesser duty of care, [n1] there is no First Amendment constraint against [p465] allowing recovery upon proof of negligence. The applicability of such a fault standard was expressly limited to circumstances where, as here, "the substance of the defamatory statement ‘makes substantial danger to reputation apparent.'" [n2] Id. at 348, quoting Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967). By requiring a showing of fault, the Court in Gertz sought to shield the press and broadcast media from a rule of strict liability that could lead to intolerable self-censorship and, at the same time, recognize the legitimate state interest in compensating private individuals for wrongful injury from defamatory falsehoods.
In one paragraph near the end of its opinion, the Supreme Court of Florida cited Gertz in concluding that Time was guilty of "journalistic negligence." But, as the opinion of the Court recognizes, ante at 462 n. 7, and 46, it is not evident from this single paragraph that any type of fault standard was, in fact, applied. Assuming that Florida now will apply a negligence standard in cases of this kind, the ultimate question here is whether Time exercised due care under the circumstances: did Time exercise the reasonably prudent care that a State may constitutionally demand of a publisher or broadcaster prior to a publication whose content reveals its defamatory potential?
The answer to this question depends upon a careful consideration of all the relevant evidence concerning Time's actions prior to the publication of the [p466] "Milestones" article. But, in its conclusory paragraph finding negligence, the Supreme Court of Florida mentioned only the provision of Florida law that proscribed an award of alimony to a wife found guilty of adultery, arguing that the award of alimony to respondent clearly demonstrated that the divorce was granted on other grounds. There is no recognition in the opinion of the ambiguity of the divorce decree, and no discussion of any of the efforts made by Time to verify the accuracy of its news report. Nor was there any weighing of the evidence to determine whether there was actionable negligence by Time under the Gertz standard. [n3]
There was substantial evidence, much of it uncontradicted, that the editors of Time exercised considerable care in checking the accuracy of the story prior to its publication. The "Milestones" item appeared in the December 22, 1967, issue of Time. This issue went to press on Saturday, December 16, the day after the Circuit Court rendered its decision at about 4:30 in the afternoon. The evening of the 15th, the Time editorial staff in New York received an Associated Press dispatch stating that Russell A. Firestone, Jr., had been granted a divorce from his third wife, whom "he had accused of adultery and extreme cruelty." Later that same evening, Time received the New York Daily News edition for December 16, which carried a special bulletin substantially to the same effect as the AP dispatch.
On the morning of December 16, in response to an inquiry sent to its Miami bureau, Time's New York office received a dispatch from the head of that bureau quoting excerpts from the Circuit Court's opinion that [p467] strongly suggested adultery on the part of both parties. [n4] Later that day, the editorial staff received a message from Time's Palm Beach "stringer" that read, in part:
The technical grounds for divorce, according to Joseph Farrish [sic], Jr., attorney for Mary Alice Firestone, were given as extreme cruelty and adultry [sic].
App. 532. The stringer's dispatch also included several quotations from the Circuit Court opinion. [n5] At trial, the senior editor testified that, although no member of the New York editorial staff had read the Circuit Court's opinion, he had believed that both the stringer and the chief of Time's Miami bureau had read it.
The opaqueness of the Circuit Court's decree is also a factor to be considered in assessing whether Time was guilty of actionable fault under the Gertz standard. Although it appears that neither the head of the Miami bureau nor the stringer personally read the opinion or order, the stringer testified at trial that respondent's attorney Farish and others read him portions of the decree over the telephone before he filed his dispatch with Time. [n6] The record does not reveal whether [p468] the limited portions of the decree that shed light on the grounds for the granting of the divorce were read to the stringer. [n7] But the ambiguity of the divorce decree may well have contributed to the stringer's view, and hence the Time editorial staff's conclusion that a ground for the divorce was adultery by respondent.
However one may characterize it, the Circuit Court decision was hardly a model of clarity. Its opening sentence was as follows:
This cause came on for final hearing before the court upon the plaintiff wife's second amended complaint for separate maintenance (alimony unconnected with the causes of divorce), the defendant husband's answer and counterclaim for divorce on grounds of extreme cruelty and adultery, and the wife's answer thereto setting up certain affirmative defenses.
App. 523. After commenting on the conflicting testimony as to respondent's "extramarital escapades" and her husband's "bounding from one bedpartner to another," the opinion states that "it is the conclusion and finding of the court that neither party is domesticated. . . ." Finally, the Circuit Court "ORDERED AND ADJUDGED":
That the equities in this cause are with the defendant; [p469] that defendant's counterclaim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved.
App. 528. The remaining paragraphs in the order portion of the decision relate to child custody and support, disposition of certain property, attorney's fees, and the award of $3,000 per month to the wife (respondent) as alimony. There is no reference whatever in the "order" portion of the decision either to "extreme cruelty" or "adultery," the only grounds relied upon by the husband. But the divorce was granted to him following an express finding "that the equities . . . are with the defendant [the husband]."
Thus, on the face of the opinion itself, the husband had counterclaimed for divorce on the grounds of extreme cruelty and adultery, and the court had found the equities to be with him and had granted his counterclaim for divorce. Apart from the awarding of alimony to the wife, there is no indication, either in the opinion or accompanying order, that the husband's counterclaim was not granted on both of the grounds asserted. This may be a redundant reading, as either ground would have sufficed. But the opinion that preceded the order was full of talk of adultery, and made no explicit reference to any other type of cruelty. In these circumstances, the decision of the Circuit Court may have been sufficiently ambiguous to have caused reasonably prudent newsmen to read it as granting divorce on the ground of adultery.
As I join the opinion of the Court remanding this case, it is unnecessary to decide whether the foregoing establishes as a matter of law that Time exercised the requisite care under the circumstances. Nor have I undertaken to identify all of the evidence that may be relevant or to [p470] point out conflicts that arguably have been resolved against Time by the jury. My point in writing is to emphasize that, against the background of a notorious divorce case, see Curtis Publishing Co., 388 U.S. at 158-159 [n8] and a decree that invited misunderstanding, there was substantial evidence supportive of Time's defense that it was not guilty of actionable negligence. At the very least, the jury or court assessing liability in this case should have weighed these factors and this evidence before reaching a judgment. [n9] There is no indication in the record before us that this was done in accordance with Gertz. [n10] [p471]
1. A State, if it elected to do so, could require proof of gross negligence before holding a publisher or broadcaster liable for defamation. In Gertz, we concluded
that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual.
418 U.S. at 345-346.
2. In amplification of this limitation, we referred to the type of "factual misstatement whose content [does] not warn a reasonably prudent editor or broadcaster of its defamatory potential." Id. at 348.
3. The absence of any assessment of fault under the Gertz standard by the Supreme Court of Florida is fatal here, because there was no such finding at any other level of judgment in this proceeding. Ante at 461-463, and n. 7.
4. The excerpts included:
"According to certain testimony in behalf of the defendant [husband], extramarital escapades of the plaintiff [wife] were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in the plaintiff's behalf, would indicate that the defendant was guilty of bounding from one bed partner to another with the erotic zest of a satyr."
App. 544.
5. Based on these news items and dispatches, the Time editorial team, consisting of a researcher, writer, and senior editor in charge of the "Milestones" section of the magazine, wrote, edited, and checked the article for accuracy. At trial, they testified as to their complete belief in the truth of the news item at the time of publication.
6. Several hours after filing his dispatch, the stringer spoke with the divorce judge by telephone. According to testimony of the stringer at trial the divorce judge read him portions of the decree, and none of this information was inconsistent with that contained in his dispatch to Time; otherwise, he would have alerted Time's New York office immediately.
7. Time did not consider the stringer to be an employee. He worked for Time part-time, and was compensated at an hourly rate, although he was guaranteed a minimum amount of work each year. In this case, he was contacted by the chief of the Miami bureau and requested to investigate the Firestone divorce decree. There is thus a question whether the fault, if any, of the stringer in not personally reading the entire opinion and order is even a factor that may be considered in assessing whether there was actionable fault by Time under Gertz. Cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253-254 (1974).
8. In its first opinion remanding the case to the District Court of Appeal, after referring to the general prominence of the Firestones, the Supreme Court of Florida indicated that
their marital difficulties were equally well known, and the charges and countercharges of meretriciousness, flowing from both sides of the controversy, made their divorce action a veritable cause celebre in social circles across the country.
271 So.2d 745, 751 (1972). The District Court of Appeal similarly observed that, in part due to the sensational and colorful testimony, the 17-month divorce trial had been the object of national news coverage. 254 So.2d 386, 389 (1971). The reports Time received that the decree was granted on the ground of adultery therefore were consistent with the well publicized trial revelations.
9. Indeed, I agree with the view expressed by MR. JUSTICE MARSHALL in his dissenting opinion: unless there exists some basis for a finding of fault other than that given by the Supreme Court of Florida, there can be no liability.
10. The Florida District Court of Appeal, on the second appeal to it, reversed a judgment for respondent. In doing so, it applied the New York Times "actual malice" standard, but added: "Nowhere was there proof Time was even negligent, much less intentionally false or in reckless disregard of the truth." 254 So.2d at 390. A problem infecting the various decisions in the Florida courts is the understandable uncertainty as to exactly what standard should be applied. This case was in litigation several years before Gertz was decided.