Garrison v. State of Louisiana, 4

Decision Date23 November 1964
Docket NumberNo. 4,4
PartiesJim GARRISON, Appellant, v. STATE OF LOUISIANA. Re
CourtU.S. Supreme Court

Eberhard P. Deutsch, New Orleans, La., for appellant.

Jack P. F. Gremillion, Baton Rouge, La., for appellee.

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

the Criminal District Court of the Parish, he held a press conference at which he issued a statement disparaging their judicial conduct. As a result, he was tried without a jury before a judge from another parish and convicted of criminal defamation under the Louisiana Criminal Defamation Statute.1 The principal charges alleged to

be defamatory were his attribution of a large backlog of pending criminal cases to the inefficiency, laziness, and excessive vacations of the judges, and his accusation that, by refusing to authorize disbursements to cover the expenses of undercover investigations of vice in New Orleans, the judges had hampered his efforts to enforce the vice laws. In impugning their motives, he said:

'The judges have now made it eloquently clear where their sympathies lie in regard to aggressive vice investigations by refusing to authorize use of the DA's funds to pay for the cost of closing down the Canal Street clip joints. * * *

'* * * This raises interesting questions about the racketeer influences on our eight vacation-minded judges.'2

The Supreme Court of Louisiana affirmed the conviction, 244 La. 787, 154 So.2d 400. The trial court and the State Supreme Court both rejected appellant's contention that the statute unconstitutionally abridged his freedom of expression. We noted probable jurisdiction of the appeal. 375 U.S. 900, 84 S.Ct. 195, 11 L.Ed.2d 142. Argument was first heard in the 1963 Term, and the case was ordered restored to the calendar for reargument, 377 U.S. 986, 84 S.Ct. 1906, 12 L.Ed.2d 1042. We reverse.


In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 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, 84 S.Ct. at 726. 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.3 At common law, truth was no defense to criminal

libel. Although the victim of a true but defamatory publication might not have been unjustly damaged in reputation by the libel, the speaker was still punishable since the remedy was designed to avert the possibility that the utterance would provoke an enraged victim to a breach of peace. That argument is well stated in Edward Livingston's explanation of the defamation provisions of his proposed penal code for Louisiana:

'In most cases, the connexion between cause and effect exists between the subject of this chapter and that of a subsequent one—Of Duels. Defamation, either real or supposed, is the cause of most of those combats which no laws have yet been able to suppress. If lawgivers had originally condescended to pay some attention to the passions and feelings of those for whom they were to legislate, these appeals to arms would never have usurped a power superior to the laws; but by affording no satisfaction for the wounded feelings of honour, they drove individuals to avenge all wrongs of that description, denied a place in the code of criminal law. Insults formed a title in that of honour, which claimed exclusive jurisdiction of this offence.' Livingston. A System of Penal Law for the State of Louisiana, at 177 (1833).4

Even in Livingston's day, however, preference for the civil remedy, which enabled the frustrated victim to trade chivalrous satisfaction for damages, had substantially eroded the breach of the peace justification for criminal libel laws. In fact, in earlier, more violent, times, the civil remedy had virtually pre-empted the field of defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual desuetude.5 Changing mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that '* * * under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the maintenance of peace requires a criminal prosecution for private defamation.' Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 924 (1963).6 The absence in the Proposed Official Draft of the Model Penal Code of the American Law Institute of any criminal libel statute on the Louisiana pattern reflects this modern consensus. The ALI Reporters, in explaining the omission, gave cogent evidence of the obsolescence of Livingston's justification:

'It goes without saying that penal sanctions cannot be justified merely by the fact that defamation is evil

or damaging to a person in ways that entitle him to maintain a civil suit. Usually we reserve the criminal law for harmful behavior which exceptionally disturbs the community's sense of security. * * * It seems evident that personal calumny falls in neither of these classes in the U.S.A., that it is therefore inappropriate for penal control, and that this probably accounts for the paucity of prosecutions and the near desuetude of private criminal libel legislation in this country. * * *' Model Penal Code, Tent. Draft No. 13, 1961, § 250.7, Comments, at 44.

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, 62 S.Ct. 766, 86 L.Ed. 1031, 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, 72 S.Ct. 725. 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'7

should be incorporated into the New York Times rule as it applies to criminal libel statutes; in particular, we must ask whether this history permits negating the truth defense, as the Louisiana statute does, on a showing of

malice in the sense of ill-will. The 'good motives' restriction incorporated in many state constitutions and statutes to reflect Alexander Hamilton's unsuccessfully urged formula in People v. Croswell, 3 Johns.Cas. 337, 352 (N.Y. Supreme Court 1804), liberalized the common-law rule denying any defense for truth. See Ray, Truth: A Defense to Libel, 16 Minn.L.Rev. 43, 46—49 (1931); Kelly, Criminal Libel and Free Speech, 6 Kan.L.Rev. 295, 326—328 (1958). We need not be concerned whether this limitation serves a legitimate state interest to the extent that it reflects abhorrence that 'a man's forgotten misconduct, or the misconduct of a relation, in which the public had no interest, should be wantonly raked up, and published to the world, on the ground of its being true.? 69 Hansard, Parliamentary Debates Hist. Eng. 1230 (3d series) (H.L. June 1, 1843) (Report of Lord Campbell) (emphasis supplied). 8 In any event, where the criticism is of

public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth.9 In short, we agree with the New Hampshire court in State v. Burnham, 9 N.H. 34, 42—43, 31 Am.Dec. 217, 221 (1837):

'If upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice. * * *

'It has been said that it is lawful to publish truth from good motives, and for justifiable ends. But this rule is too narrow. If there is a lawful occasion—a legal right to make a publication—and the matter true, the end is justifiable, and that, in such case, must be sufficient.'

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, Def-

amation of Public Officers and Candidates, 49 Col.L.Rev. 875, 893 (1949). Moreover, '(i)n the case of charges against a popular political...

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