Decision Date29 June 1959
Citation360 U. S. 564
CourtU.S. Supreme Court




When petitioner was Acting Director of the Office of Rent Stabilization and respondents were subordinate officials of the same office, petitioner caused to be issued a press release announcing his intention to suspend respondents because of the part which they had played in formulating a plan for the utilization of certain agency funds. The plan had been severely criticized on the floor of Congress, and the congressional criticism had been widely reported in the press. Respondents sued petitioner for libel, alleging malice.

Held: Petitioner's plea of absolute privilege in defense of the alleged libel must be sustained. P P. 564-578.

103 U.S.App.D.C. 176, 256 F.2d 890, reversed.

For judgment of the Court and opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK and MR. JUSTICE WITTAKER, see p P. 564-576.

For concurring opinion of MR. JUSTICE BLACK, see P. 576.

For dissenting opinion of MR. CHIEF JUSTICE WARREN, joined by MR. JUSTICE DOUGLAS, see P. 578.

For dissenting opinion of MR. JUSTICE BRENNAN, see P. 586.

For dissenting opinion of MR. JUSTICE STEWART, see P. 592.

MR. JUSTICE HARLAN announced the judgment of the Court, and delivered an opinion in which MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK, and MR. JUSTICE WHITTAKER join.

We are called upon in this case to weigh in a particular context two considerations of high importance

Page 360 U. S. 565

which now and again come into sharp conflict -- on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government, and, on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill founded damage suits brought on account of action taken in the exercise of their official responsibilities.

This is a libel suit, brought in the District Court of the District of Columbia by respondents, former employees of the Office of Rent Stabilization. The alleged libel was contained in a press release issued by the office on February 5, 1953, at the direction of petitioner, then its Acting Director. [Footnote 1] The circumstances which gave rise to the issuance of the release follow.

In 1950, the statutory existence of the Office of Housing Expediter, the predecessor agency of the Office of Rent Stabilization, was about to expire. Respondent Madigan, then Deputy Director in charge of personnel and fiscal matters, and respondent Matteo, chief of the personnel branch, suggested to the Housing Expediter a plan designed to utilize some ,600,000 of agency funds earmarked in the agency's appropriation for the fiscal year 1950 exclusively for terminal leave payments. The effect of the plan would have been to obviate the possibility that the agency might have to make large terminal leave payments during the next fiscal year out of general agency funds, should the life of the agency be extended by Congress. In essence, the mechanics of the plan were that agency employees would be discharged, paid accrued annual leave out of the ,600,000 earmarked for terminal leave payments, rehired immediately as temporary employees,

Page 360 U. S. 566

and restored to permanent status should the agency's life, in fact, be extended.

Petitioner, at the time General Manager of the agency, opposed respondents' plan on the ground that it violated the spirit of the Thomas Amendment, 64 Stat. 768, [Footnote 2] and expressed his opposition to the Housing Expediter. The Expediter decided against general adoption of the plan, but, at respondent Matteo's request, gave permission for its use in connection with approximately fifty employees, including both respondents, on a voluntary basis. [Footnote 3] Thereafter, the life of the agency was, in fact, extended

Some two and a half years later, on January 28, 1953, the Office of Rent Stabilization received a letter from Senator John J. Williams of Delaware, inquiring about the terminal leave payments made under the plan in 1950. Respondent Madigan drafted a reply to the letter, which he did not attempt to bring to the attention of petitioner, and then prepared a reply which he sent to petitioner's office for his signature as Acting Director of the agency. Petitioner was out of the office, and a secretary signed the submitted letter, which was then delivered by Madigan to Senator Williams on the morning of February 3, 1953.

On February 4, 1953, Senator Williams delivered a speech on the floor of the Senate strongly criticizing the

Page 360 U. S. 567

plan, stating that

"to say the least it is an unjustifiable raid on the Federal Treasury, and heads of every agency in the Government who have condoned this practice should be called to task."

The letter above referred to was ordered printed in the Congressional Record. Other Senators joined in the attack on the plan. [Footnote 4] Their comments were widely reported in the press on February 5, 1953, and petitioner, in his capacity as Acting Director of the agency, received a large number of inquiries from newspapers and other news media as to the agency's position on the matter.

On that day, petitioner served upon respondents letters expressing his intention to suspend them from duty, and at the same time ordered issuance by the office of the press release which is the subject of this litigation, and the text of which appears in the margin. [Footnote 5]

Page 360 U. S. 568

Respondents sued, charging that the press release, in itself, and as coupled with the contemporaneous news reports of senatorial reaction to the plan, defamed them to their injury, and alleging that its publication and terms had been actuated by malice on the part of petitioner. Petitioner defended, inter alia, on the ground that the issuance of the press release was protected by either a qualified or an absolute privilege. The trial court overruled these contentions, and instructed the jury to return a verdict for respondents if it found the release defamatory. The jury found for respondents.

Petitioner appealed, raising only the issue of absolute privilege. The judgment of the trial court was affirmed by the Court of Appeals, which held that, "in explaining his decision [to suspend respondents] to the general public, [petitioner] . . . went entirely outside his line of duty," and that, thus, the absolute privilege, assumed otherwise to be available, did not attach. 100 U.S.App.D.C. 319, 244 F.2d 767. We granted certiorari, vacated the Court of Appeals' judgment, and remanded the case "with directions to pass upon petitioner's claim of a qualified

Page 360 U. S. 569

privilege." 355 U. S. 171, 173. On remand, the Court of Appeals held that the press release was protected by a qualified privilege, but that there was evidence from which a jury could reasonably conclude that petitioner had acted maliciously, or had spoken with lack of reasonable grounds for believing that his statement was true, and that either conclusion would defeat the qualified privilege. Accordingly, it remanded the case to the District Court for retrial. 103 U.S.App.D.C. 176, 256 F.2d 890. At this point, petitioner again sought, and we again granted, certiorari, 358 U.S. 917, to determine whether, in the circumstances of this case, petitioner's claim of absolute privilege should have stood as a bar to maintenance of the suit despite the allegations of malice made in the complaint.

The law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has in large part been of judicial making, although the Constitution itself gives an absolute privilege to members of both Houses of Congress in respect to any speech, debate, vote, report, or action done in session. [Footnote 6] This Court early held that judges of courts of superior or general authority are absolutely privileged as respects civil suits to recover for actions taken by them in the exercise of their judicial functions, irrespective of the motives with which those acts are alleged to have been performed, Bradley v. Fisher, 13 Wall. 335, and that a like immunity extends to other officers of government whose duties are related to the judicial process. Yaselli v. Goff, 12 F.2d 396, aff'd per curiam, 275 U.S. 503, involving a Special Assistant to the Attorney General. [Footnote 7] Nor has the privilege been confined to officers of the legislative and judicial

Page 360 U. S. 570

branches of the Government and executive officers of the kind involved in Yaselli. In Spalding v. Vilas, 161 U. S. 483, petitioner brought suit against the Postmaster General, alleging that the latter had maliciously circulated widely among postmasters, past and present, information which he knew to be false and which was intended to deceive the postmasters to the detriment of the plaintiff. This Court sustained a plea by the Postmaster General of absolute privilege, stating that ( 161 U. S. 498-499):

"In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show...

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