Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
2013]
3/13/2013 7:48 PM
THE LANDMARK THAT WASN’T
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actions.”175 Gertz did not support such a result, Powell wrote, both because in that case there “was a libel suit against a media defendant” and because the “article in question discussed a question of undoubted public importance.”176 Greenmoss Builders, in contrast, involved “a purely private defamation action against a commercial credit reporting agency.”177 In the end, Powell asserted that the Court’s result “unnecessarily repudiates the common law and trivializes the First Amendment. There is nothing in Gertz that requires it.”178 At this point, the opinion contained another footnote that addressed Powell’s previously expressed concerns about the express “holding” in Gertz: There is language in Gertz that can be read broadly to the effect that presumed and punitive damages have no place in the law of defamation. It is necessary, however, to view this language in the context of the only issue before the Court. The suit was by a private person against a media defendant. It was the presence of the media defendant that primarily caused the Court in Gertz to limit recovery to “actual injury.”179 As to the damages question, Powell added: Presumed and punitive damages were deemed—for the reasons first articulated in New York Times—to threaten the historic role of the media in a representative democracy. No such threat is present when one private party is libeled by another private party—at least where the libel is circulated in the course of, and is solely concerned with, both parties’ businesses. In weighing the interests that may be at issue, it is well also to repeat that there is a significant public interest “in compensating private individuals for wrongful injury to reputation.”180 This reframing of the decision in Gertz might have effectively cleared up for Powell the concerns he harbored about the scope of the First Amendment interest in defamation cases and about the importance of allowing the states substantial leeway in crafting their own laws. It is, however, an exceedingly narrow statement of the purposes of both Sullivan and Gertz that ignores the difficulty of line-drawing among types of speakers, subjects of speech and types of damages that Powell
175. 176. 177. 178. 179. 180.
Justice Powell, Draft Dissent One, supra note 168, at 2. Id. at 5. Id. Id. (footnote omitted). Id. at 10–11. Id. at 11 (quoting Gertz v. Robert Welch Inc., 418 U.S. 323, 348–49 (1974)).