Draft Essay – US supreme court struck a balance between reputation and freedom of expression?
The Freedom of expression was indoctrinated into the United States Constitution in 1789 in the first amendment, and is recognised as a fundamental human right in modern society. All the fundamental freedoms are considered to be a paramount prerequisite for the functionality of democracy. Freedom of expression also acts as a base for the other acknowledged fundamental human rights, such as freedom of speech and religion. It is the right for individuals to hold their own opinions without interference and allows them to convey it through any form, and across any and all perimeters. However while it protects the individuals right to articulate their opinions there are some restrictions. Essentially it is recognised as an unlimited freedom till it causes harm to another’s character or reputation by false or misleading statements. These restrictions are exercised to ensure that the rights and freedoms of others aren’t impinged; this is where the balancing act of rights becomes a necessity.
It has long been perceived that the free word can cause damage to an individual if it is seen to be offensive in any shape or form, whether that be discriminative or negative against the person’s reputation based on a falsehood. Finding the balance between a person’s reputational interest and the freedom of expression is a highly controversial topic, however while it is clear that it is difficult to find the balance it has to be pointed out that one of the factors that underpin the balancing act is that neither right can be defeat another, they are of equal measure. Both rights are of equal weight and recognise that there is a principle of indivisibility when they are in conflict with one another. Human rights themselves are devised to protect individuals from unjustified intrusions, therefore this causes significant amounts of issues when two rights collide, hence why there has been adaptations of strict requirements of necessity and proportionality to justify the limitations of the freedom of expression by a state. Undoubtedly the balancing of two human rights are significantly complicated, therefore it is not surprising that the United States Supreme Court has struggled to find the correct balance between that of reputational interest and the freedom of expression.
It was in the case of the New York Times co. v Sullivan that the conflict of reputation and expression first was propelled into the Supreme Courts forum. It was in this landmark case that the ‘actual malice’ standard was established, making it undeniably important for the development of the freedom of the press, and subsequently the freedom of expression. It was from this point that the balance of freedom of expression and reputational interests began, with difference being brought to light over that of a public or private individual. There have been many significant case rulings that have developed throughout the years in the effort to find the seemingly perfect balance, however many seem to differ from each other and are a result of multiple retrials or appeals. As mentioned it was in the New York Times co. v Sullivan case that the principle of ‘actual malice’ was put into effect, it was in this case that the court held that both the first and fourteenth amendment must show that a public official needs to prove that the statement in question was published with this principle before any form of recovery can be sought over a defamatory comment or falsehood. In the Supreme courts judgement they said that along with this principle there must be a ‘convincing clarity’ over the use of malice, almost an undeniable proof that it was said or published maliciously. While this term ‘actual malice’ was coined in the 1964 landmark case, it wasn’t a wholly new term in itself, it was previously available in a pre-existing libel law, in many jurisdictions it was used to determine punitive damages, but it wasn’t until this case that the term itself became of constitutional importance. The ‘actual malice’ principle requires that the plaintiff to prove that the publisher of the statement in question knew that it was a falsehood, or acted in a way that shows a reckless disregard for the truth. The Supreme Court has been somewhat clear that this can be through not following up on a source and mindless quoting them, or plainly ignoring any doubts they themselves have over the statement itself. This ruling unequivocally allowed the papers and reports a less restricted movement through the first amendment with little regard for the public official or figure’s reputation in question. It was held that under this new principle that the first amendment protect all statements made by a paper even if deceitful or dishonest ones about the conduct of a person within the public domain expect when it can clearly be shown that it was made maliciously under ‘actual malice’, therefore this caused Sullivan’s case against the New York Times to fail. Yet, the introduction of this new standard without question placed an extremely high burden of proof upon the plaintiff, the statement is automatically presumed to be truth until proven otherwise by the plaintiff. This theorem prevailed over the common stance in a majority of states, where it was presumed that the person’s reputation was automatically a good one meaning that the defamatory statements made were presumably false unless the publisher could prove it. This therefore shifted the burden of proof from the defendant to the plaintiff, which is undeniably difficult, due to the difficulties in proving that the defendant had knowledge of the falsehood as well as having the malicious intention to publish anyway, this therefore has not surprisingly meant that claims such as that in Sullivan rarely succeed. Many critics recognise that this principle is far more easily alleged than it is to prove, hence the few success cases . On account of this case alone that while the Supreme Court has attempted to balance out the freedom of expression and the reputational interest of the individual but arguably in the case of the person within the public domain they have fallen short.
While this seems simple to start with the Sullivan case was only the beginning of the development of protecting reputational interest against the first amendment. Even after the Sullivan decision private plaintiffs remained on the most part unaffected by the new ‘actual malice’ principle, until the case of Rosenbloom v Metromedia . It wasn’t really until this case that the question over whether the principle from Sullivan could now be applied to private individuals. The Supreme Court ruled that the previous standards for recovery for that of the private individual were inadequate, thus the majority-ruling judges founded the ‘public issue’ test , which further supported the first amendment and as a consequence heightened the free media due to the presupposed extension of the freedom of expression. Rosenbloom was awarded damages as it could be proved that Metromedia didn’t use a reasonable amount of care to ascertain the truth before the broadcasting, therefore it was held that knowingly and recklessly publishing a falsehood should apply to the private individual because it was within the public concern. This meant that the private figure was now similarly to the public figure was refused a strict liability protection against libellous statements in circumstances where the statement was now a public interest issue. However this has been widely criticised due to the fact that this new ‘public interest’ factor requires judges to make their own instinctive determination about how or if the plaintiff in question has willing thrown himself or herself into the public forum or whether they have been unwillingly thrust. This new ideal also overlooks the previous case law that showed a commitment to private individuals and the developed precedent of protecting them against defamatory falsehoods. This judgement seemingly strengthens the freedom of expression against the reputational interest of the individual whether they are within the public domain or not, yet again showing the lack of balance between the two.
While Rosenbloom was one in many libel cases, the decision fell down a few years later with the Gertz v Robert Welch Inc. , it was here that the Supreme Court rejected the previous idea of public interest playing a factor. The Gertz case addresses the relationship between private individuals and the first amendment and whether it should allow the media to claim a unproven defamatory falsehood. The decision here was that a private individual should be more protected than that of a public one, the ‘ordinary’ citizen should have greater protection from libellous slander. The aim of this new thought was to strike an unbiased balance between an individual’s reputational interest and the freedom of expression by preventing frivolous attempts through the use of strict liability. However this case in itself caused much debate between the Justices themselves, with all four dissenting justices filing separate opinions. The aim of the Gertz case was for the court to protect the interest of the state itself by protecting the reputational interest of its citizens by allowing the own states judgements to determine what level of accountability needed for recovery. While this ruling attempted to widen the protection afforded to a person’s reputational interest, the court did place a limit on the damages that could be award to the individual where there was liability because of knowledge of the falsity. This lessened the burden of proof placed upon the private individual, in the respect that at least negligence was to be proved for recovery to be sought. This meant that after Gertz the reputational interest of an individual received greater security than it had been granted under Rosenbloom. However this ruling was highly criticised for the limits it placed upon the first amendment, particularly by Justice Douglas who said that, ‘it would stifle free and robust debate’. It was after this that it became more widely recognised that a person’s reputational interest should be afford some sort of constitutional protection, it was also this development that saw a fairer balance between the two.
While this started the protection, it wasn’t until Wisconsin v Constantineau that a more precise definition was constructed. It was here that the Supreme Court recognised that a person’s reputational interest deserved a greater degree of procedural protection this was then placed under the due process clause.