Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
98
WASHINGTON LAW REVIEW
3/13/2013 7:48 PM
[Vol. 88:1
modest suggestions,579 however, Burger attempted to explain himself at greater length. He reiterated his dissatisfaction with Gertz but explained that it “is now the law of the land, and until it is overruled, it must, under the principle of stare decisis, be applied by this Court.”580 Accordingly, Burger pronounced his agreement with Powell “to the extent that it holds that Gertz is inapplicable in this case.”581 Nevertheless, Burger emphasized, he agreed with White that “Gertz should be overruled” as well as with his general “observations concerning New York Times v. Sullivan.”582 He then took the opportunity to endeavor to rewrite the actual malice standard itself, declaring that “since New York Times equates ‘reckless disregard of the truth’ with malice, this should permit a jury instruction that malice may be found if the defendant is shown to have published defamatory material which, in the exercise of reasonable care, would have been revealed as untrue.”583 He added that: If this is not what New York Times v. Sullivan means, I agree with JUSTICE WHITE that it should be reexamined. The great rights guaranteed by the First Amendment carry with them certain responsibilities. Consideration of these issues inevitably recalls the aphorism of journalism attributed to the late Roy Howard that, “too much checking on the facts has ruined many a good news story.”584 Powell and his clerk remained perplexed by Burger’s approach and strategy. “I honestly can’t see why he doesn’t join us,” the clerk wrote by hand on Powell’s copy of Burger’s opinion, to which the Justice added, “I agree.”585 Still, Powell’s attentions remained focused on Brennan and, on May 27, he wrote to Brennan, somewhat curtly, that he 579. See supra note 542 and accompanying text. 580. Chief Justice Burger, Draft Concurrence One, supra note 578, at 1. 581. Id. at 2 582. Id. 583. Id. The Court had specifically repudiated this view in Connaughton. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 (1989) (“Today, there is no question that public figure libel cases are controlled by the New York Times standard and not by the professional standards rule, which never commanded a majority of this Court.”). 584. Id. On June 17, 1985, Burger revised the beginning of this passage from “If this is not what New York Times v. Sullivan means” to “But since the Court has not applied the literal language of New York Times in this way.” Chief Justice Burger, Draft Concurrence Two 2 (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.) (June 17, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. The impetus for Burger’s acknowledgement that his preferred reading of Sullivan is not the law remains unclear. 585. Chief Justice Burger, Draft Concurrence One, supra note 578, at 1 (with handwritten notes from Daniel Ortiz and Justice Powell).