MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellant is the District Attorney of Orleans Parish, Louisiana. During a dispute with the eight judges of
In New York Times Co. v. Sullivan, 376 U.S. 254, we held that the Constitution limits state power, in a civil action brought by a public official for criticism of his official conduct, to an award of damages for a false statement "made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U. S., at 279-280. At the outset, we must decide whether, in view of the differing history and purposes of criminal libel, the New York Times rule also limits state power to impose criminal sanctions for criticism of the official conduct of public officials. We hold that it does.
Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws, and therefore should not be subject to the same limitations.
The Reporters therefore recommended only narrowly drawn statutes designed to reach words tending to cause a breach of the peace, such as the statute sustained in Chaplinsky v. New Hampshire, 315 U.S. 568, or designed to reach speech, such as group vilification, "especially likely to lead to public disorders," such as the statute sustained in Beauharnais v. Illinois, 343 U.S. 250. Model Penal Code, supra, at 45. But Louisiana's rejection of the clear-and-present-danger standard as irrelevant to the application of its statute, 244 La., at 833, 154 So. 2d, at 416, coupled with the absence of any limitation in the statute itself to speech calculated to cause breaches of the peace, leads us to conclude that the Louisiana statute is not this sort of narrowly drawn statute.
We next consider whether the historical limitation of the defense of truth in criminal libel to utterances published "with good motives and for justifiable ends"
Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, "it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded." Noel, Defamation
We held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. The reasons which led us so to hold in New York Times, 376 U. S., at 279-280, apply with no less force merely because the remedy is criminal. The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy. Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. And since ". . . erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the `breathing space' that they `need . . . to survive' . . . ," 376 U. S., at 271-272, only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions. For speech concerning public affairs is
The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. Cf. Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088-1111 (1942). That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ." Chaplinsky v. New Hampshire, 315 U.S. 568, 572. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
We find no difficulty in bringing the appellant's statement within the purview of criticism of the official conduct of public officials, entitled to the benefit of the New York Times rule. As the Louisiana Supreme Court viewed the statement, it constituted an attack upon the personal integrity of the judges, rather than on official conduct. In sustaining the finding of the trial court that the appellant's statement was defamatory, the Louisiana Supreme Court held that ". . . the use of the words `racketeer influences' when applied to anyone suggests and imputes that he has been influenced to practice fraud, deceit, trickery, cheating, and dishonesty"; that "The expression that the judges have enjoyed 300 days vacation out of 19 months suggests and connotes a violation of the `Deadhead' statute, LSA-R. S. 14:138, Public Payroll Fraud"; that "Other expressions set out in the Bill of Information connote malfeasance in office. LSA-R. S. 14:134; Art. IX, Sec. 1, La. Const. of 1921." The court concluded that "Defendant's expressions . . . are not criticisms of a court trial or of the manner in which any one of the eight judges conducted his court when in session. The expressions charged contain personal attacks upon the integrity and honesty of the eight judges . . . ." 244 La., at 834-835, 154 So. 2d, at 417-418.
We do not think, however, that appellant's statement may be considered as one constituting only a purely private defamation. The accusation concerned the judges' conduct of the business of the Criminal District Court.
Applying the principles of the New York Times case, we hold that the Louisiana statute, as authoritatively interpreted by the Supreme Court of Louisiana, incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials.
This is not a holding applying the New York Times test. The reasonable-belief standard applied by the trial judge is not the same as the reckless-disregard-of-truth standard. According to the trial court's opinion, a reasonable belief is one which "an ordinarily prudent man might be able to assign a just and fair reason for"; the suggestion is that under this test the immunity from criminal responsibility in the absence of ill-will disappears on proof that the exercise of ordinary care would have revealed that the statement was false. The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
For reasons stated at greater length in my opinions concurring in New York Times Co. v. Sullivan, 376 U.S. 254, 293, and dissenting in Beauharnais v. Illinois, 343 U.S. 250, 267, as well as in the opinion of MR. JUSTICE DOUGLAS in this case, infra, p. 80, I concur in reversing the conviction of appellant Garrison, based as it is purely on his public discussion and criticism of public officials. I believe that the First Amendment, made applicable to the States by the Fourteenth, protects every person from having a State or the Federal Government fine, imprison, or assess damages against him when he has been guilty of no conduct, see Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, other than expressing an opinion, even though others may believe that his views are unwholesome, unpatriotic, stupid or dangerous. I believe that the Court is mistaken if it thinks that requiring proof that
MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins, concurring.
I am in hearty agreement with the conclusion of the Court that this prosecution for a seditious libel was unconstitutional. Yet I feel that the gloss which the Court has put on "the freedom of speech" in the First Amendment to reach that result (and like results in other cases) makes that basic guarantee almost unrecognizable.
Recently in New York Times Co. v. Sullivan, 376 U.S. 254, a majority of the Court held that criticism of an
If malice is all that is needed, inferences from facts as found by the jury will easily oblige. How can we sit in review on a cold record and find no evidence of malice (cf. New York Times Co. v. Sullivan, 376 U. S., at 285-288) when it is the commonplace of life that heat and passion subtly turn to malice in actual fact? If "reckless disregard of the truth" is the basis of seditious libel, that nebulous standard could be easily met. The presence of "actual malice" is made critical in seditious libel, as well as in civil actions involving charges against public officials, when in truth there is nothing in the Constitution about it, any more than there is about "clear and present danger."
While the First Amendment remains the same, the gloss which the Court has written on it in this field of the discussion of public issues robs it of much vitality.
Why does "the freedom of speech" that the Court is willing to protect turn out to be so pale and tame?
It is because, as my Brother BLACK has said,
As Irving Brant recently said: "The balancing test developed in recent years by our Supreme Court does not disarm the Government of power to trench upon the field in which the Constitution says `Congress shall make no law.' The balancing test does exactly what is done by its spiritual parent, the British `common law of seditious libel,' under which (to repeat the words of May), `Every one was a libeler who outraged the sentiments of the dominant party.' " Seditious Libel: Myth and Reality, 39 N. Y. U. L. Rev. 1, 18-19 (1964).
Beauharnais v. Illinois, 343 U.S. 250, a case decided by the narrowest of margins, should be overruled as a misfit in our constitutional system and as out of line with the dictates of the First Amendment. I think it is time to face the fact that the only line drawn by the Constitution is between "speech" on the one side and conduct or overt acts on the other. The two often do blend. I have expressed the idea before: "Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it." Roth v. United States, 354 U. S., at 514 (dissenting opinion). Unless speech is so brigaded with overt acts of that kind there is nothing that may be punished; and no semblance of such a case is made out here.
I think little need be added to what Mr. Justice Holmes said nearly a half century ago:
The philosophy of the Sedition Act of 1798 which punished "false, scandalous and malicious" writings (1 Stat. 596) is today allowed to be applied by the States. Yet Irving Brant has shown that seditious libel was "entirely the creation of the Star Chamber."
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING.
Excerpt from Madison's Address, January 23, 1799:
"The sedition act presents a scene which was never expected by the early friends of the Constitution. It was then admitted that the State sovereignties were only diminished by powers specifically enumerated, or necessary to carry the specified powers into effect. Now, Federal authority is deduced from implication; and from the
"The sedition act is the offspring of these tremendous pretensions, which inflict a death-wound on the sovereignty of the States.
"For the honor of American understanding, we will not believe that the people have been allured into the adoption of the Constitution by an affectation of defining powers, whilst the preamble would admit a construction which would erect the will of Congress into a power paramount in all cases, and therefore limited in none. On the contrary, it is evident that the objects for which the Constitution was formed were deemed attainable only by a particular enumeration and specification of each power granted to the Federal Government; reserving all others to the people, or to the States. And yet it is in vain we search for any specified power embracing the right of legislation against the freedom of the press.
"Had the States been despoiled of their sovereignty by the generality of the preamble, and had the Federal Government been endowed with whatever they should judge to be instrumental towards union, justice, tranquillity, common defense, general welfare, and the preservation of liberty, nothing could have been more frivolous than an enumeration of powers.
"It is vicious in the extreme to calumniate meritorious public servants; but it is both artful and vicious to arouse the public indignation against calumny in order to conceal usurpation. Calumny is forbidden by the laws, usurpation by the Constitution. Calumny injures individuals, usurpation, States. Calumny may be redressed
"In answer to this, it is urged that every Government possesses an inherent power of self-preservation, entitling it to do whatever it shall judge necessary for that purpose.
"This is a repetition of the doctrine of implication and expediency in different language, and admits of a similar and decisive answer, namely, that as the powers of Congress are defined, powers inherent, implied, or expedient, are obviously the creatures of ambition; because the care expended in defining powers would otherwise have been superfluous. Powers extracted from such sources will be indefinitely multiplied by the aid of armies and patronage, which, with the impossibility of controlling them by any demarcation, would presently terminate reasoning, and ultimately swallow up the State sovereignties.
"So insatiable is a love of power that it has resorted to a distinction between the freedom and licentiousness of
"The distinction between liberty and licentiousness is still a repetition of the Protean doctrine of implication, which is ever ready to work its ends by varying its shape. By its help, the judge as to what is licentious may escape through any constitutional restriction. Under it men of a particular religious opinion might be excluded from office, because such exclusion would not amount to an establishment of religion, and because it might be said that their opinions are licentious. And under it Congress might denominate a religion to be heretical and licentious, and proceed to its suppression. Remember that precedents once established are so much positive power; and that the nation which reposes on the pillow of political confidence, will sooner or later end its political existence in a deadly lethargy. Remember, also, that it is to the press mankind are indebted for having dispelled the clouds which long encompassed religion, for disclosing her genuine lustre, and disseminating her salutary doctrines.
"The sophistry of a distinction between the liberty and the licentiousness of the press is so forcibly exposed in a late memorial from our late envoys to the Minister of the French Republic, that we here present it to you in their own words:
" `The genious of the Constitution, and the opinion of the people of the United States, cannot be overruled by
"As if we were bound to look for security from the personal probity of Congress amidst the frailties of man, and not from the barriers of the Constitution, it has been urged that the accused under the sedition act is allowed to prove the truth of the charge. This argument will not for a moment disguise the unconstitutionality of the act, if it be recollected that opinions as well as facts are made punishable, and that the truth of an opinion is not susceptible of proof. By subjecting the truth of opinion to the regulation, fine, and imprisonment, to be inflicted by those who are of a different opinion, the free range of the human mind is injuriously restrained. The sacred obligations of religion flow from the due exercise of opinion, in the solemn discharge of which man is accountable to
MR. JUSTICE GOLDBERG, concurring.
I agree with the Court that there is "no difficulty in bringing the appellant's statement within the purview of criticism of the official conduct of public officials . . . ." Ante, at 76. In New York Times Co. v. Sullivan, 376 U.S. 254, 297, I expressed my conviction "that the Constitution accords citizens and press an unconditional freedom to criticize official conduct." Id., at 305. New York Times was a civil libel case; this is a criminal libel prosecution. In my view, "[i]f the rule that libel on government has no place in our Constitution is to have real meaning, then libel [criminal or civil] on the official conduct of the governors likewise can have no place in our Constitution." Id., at 299.
"§ 47. Defamation
"Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends:
"(1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or
"(2) To expose the memory of one deceased to hatred, contempt, or ridicule; or
"(3) To injure any person, corporation, or association of persons in his or their business or occupation.
"Whoever commits the crime of defamation shall be fined not more than three thousand dollars, or imprisoned for not more than one year, or both.
"§ 48. Presumption of malice
"Where a non-privileged defamatory publication or expression is false it is presumed to be malicious unless a justifiable motive for making it is shown.
"Where such a publication or expression is true, actual malice must be proved in order to convict the offender.
"§ 49. Qualified privilege
"A qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false, in the following situations:
"(1) Where the publication or expression is a fair and true report of any judicial, legislative, or other public or official proceeding, or of any statement, speech, argument, or debate in the course of the same.
"(2) Where the publication or expression is a comment made in the reasonable belief of its truth, upon,
"(a) The conduct of a person in respect to public affairs; or
"(b) A thing which the proprietor thereof offers or explains to the public.
"(3) Where the publication or expression is made to a person interested in the communication, by one who is also interested or who stands in such a relation to the former as to afford a reasonable ground for supposing his motive innocent.
"(4) Where the publication or expression is made by an attorney or party in a judicial proceeding."
La. Rev. Stat., 1962 Cum. Supp., Tit. 14:
"§ 50. Absolute privilege . . . ."
Alaska Stat., 1962, § 11.15.320; Ariz. Rev. Stat. Ann., 1956, § 13-353; Cal. Const., 1879, Art. 1, § 9; Cal. Pen. Code, 1955, § 251; D. C. Code Ann., 1961, § 22-2303; Fla. Const., 1885, Declaration of Rights, § 13; Hawaii Rev. Laws, 1955, § 294-6; Idaho Code, 1948, § 18-4803; Ill. Const., 1870, Art. 2, § 4; Ill. Rev. Stat., 1963, Tit. 38, § 27-2; Iowa Const., 1846, Art. I, § 7; Iowa Code, 1962, § 737.4; Kan. Bill of Rights, Const., 1859, § 11; Kan. Gen. Stat. Ann., 1949, § 21-2403; Mass. Gen. Laws Ann., 1959, c. 278, § 8 (without "actual malice"); Mich. Const., 1963, Art. I, § 19; Minn. Stat., 1961, § 634.05; Miss. Const., 1890, Art. 3, § 13; Miss. Code, 1942 (recompiled 1956), § 2269; Mont. Const., 1889, Art. III, § 10; Mont. Rev. Codes Ann., 1947, § 94-2804; Nev. Const., 1864, Art. I, § 9; Nev. Rev. Stat., 1961, § 200.510.3; N. J. Const., 1947, Art. 1, ¶ 6; N. Y. Const., 1938, Art. I, § 8; N. Y. Pen. Code, § 1342; N. D. Const., 1889, Art. I, § 9; N. D. Cent. Code, 1960, § 12-28-04; Ohio Const., 1851, Art. I, § 11; Okla. Const., 1907, Art. 2, § 22; Okla. Stat., 1951, Tit. 21, § 774; Ore. Rev. Stat., 1953, § 163.420; R. I. Const., 1843, Art. I, § 20; R. I. Gen. Laws Ann., 1956, § 9-6-9; S. D. Const., 1889, Art. VI, § 5; S. D. Code, 1939, § 13.3406; Utah Const., 1895, Art I, § 15; Utah Code Ann., 1953, § 77-31-30; Wash. Rev. Code, 1951, § 9.58.020; Wis. Const., 1848, Art. I, § 3; Wis. Stat., 1961, § 942.01 (3); Wyo. Const., 1890, Art. 1, § 20. Cf. England, Lord Campbell's Act, 6 & 7 Vict., c. 96, § 6 (1843) (for the public benefit).
In the following jurisdictions truth does operate as a complete defense:
Colo. Const., 1876, Art. II, § 10; Colo. Rev. Stat. Ann., 1953, § 40-8-13; Bearman v. People, 91 Colo. 486, 493, 16 P.2d 425, 427 (1932); Ind. Const., 1851, Art. 1, § 10; State v. Bush, 122 Ind. 42, 23 N. E. 677 (1890); Mo. Const., 1945, Art. I, § 8; Mo. Rev. Stat., 1959, § 559.440; Neb. Const., 1875, Art. I, § 5; Neb. Rev. Stat., 1943 (1956 reissue), § 28-440; Razee v. State, 73 Neb. 732, 103 N. W. 438 (1905); N. M. Const., 1911, Art. II, § 17; N. M. Stat. Ann., 1953 (1964 replacement). § 40A-11-1 (false and malicious statement); N. C. Gen. Stat., 1953. § 15-168; S. C. Const., 1895, Art. I, § 21; S. C. Code, 1962, § 16-161; Vt. Stat. Ann., 1958, Tit. 13, § 6560.
The following jurisdictions allow greater scope for the defense of truth where criticism of the official conduct of public officials is concerned:
Ala. Const., 1901, Art. 1, § 12 (but Ala. Code, 1940, Tit. 14, § 350 makes truth a defense); Del. Const., 1897, Art. 1, § 5; Del. Code Ann., 1953, Tit. 11, § 3506; Ky. Const., 1891, § 9; Me. Const., 1820, Art. I, § 4; Me. Rev. Stat., 1954, c. 130, § 34; State v. Burnham, 9 N.H. 34, 31 Am. Dec. 217 (1837); Pa. Const., 1874, Art. 1, § 7; Tenn. Const., 1870, Art. 1, § 19; Tenn. Code Ann., 1955, §§ 39-2704, 23-2603; Tex. Const., 1876, Art. 1, § 8; Tex. Code Crim. Proc. Ann., 1954, Art. 13; Tex. Pen. Code Ann., 1953, Arts. 1290 (1), 1290 (4).
The following jurisdictions have constitutional or statutory provisions under which evidence of the truth may be introduced, but it is unclear whether this operates as a complete defense:
Ark. Const., 1874, Art. 2, § 6; Ark. Stat., 1947 (1964 replacement), Tit. 41, § 2403; Conn. Const., 1818, Art. First, § 7; Ga. Const., 1877, § 2-201; Ga. Code Ann., 1953, § 26-2103; Md. Code Ann., 1957, Art. 75, § 5; Va. Code Ann., 1950 (1960 replacement), §§ 18.1-255, 18.1-256.
In one jurisdiction there is no authority in point. See State v. Payne, 87 W.Va. 102, 104 S. E. 288 (1920).
"In reality this [balancing] approach returns us to the state of legislative supremacy which existed in England and which the Framers were so determined to change once and for all. On the one hand, it denies the judiciary its constitutional power to measure acts of Congress by the standards set down in the Bill of Rights. On the other hand, though apparently reducing judicial powers by saying that acts of Congress may be held unconstitutional only when they are found to have no rational legislative basis, this approach really gives the Court, along with Congress, a greater power, that of overriding the plain commands of the Bill of Rights on a finding of weighty public interest. In effect, it changes the direction of our form of government from a government of limited powers to a government in which Congress may be anything that courts believe to be `reasonable.' "