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Free Speech and Its Limits

In response to:

The Coming Battles over Free Speech from the June 11, 1992 issue

To the Editors:

Professor Dworkin’s review article in your June 11 issue is, like all of his writing, thoughtful and stimulating. I share his admiration of Justice Brennan and his deepseated regard for the First Amendment. Permit me to summarize some areas of disagreement.

  1. The major point on which I part company with him and, in this instance, Justice Brennan, is over the soundness of the Sullivan decision. Professor Dworkin rather uncritically accepts Sullivan as good law. He believes the First Amendment should restrict the operation of libel laws in order to reduce their “chilling” effect on free speech.

No one was more surprised by Sullivan than the lawyers for The New York Times who expected the case to be decided on narrower grounds and who argued the libel point mainly to have one more string to their bow. The Court could quite easily have reversed the Alabama judgment against the Times without rewriting the law of libel. I would hope that Professor Dworkin and Tony Lewis would agree that it is hardly good judicial practice to decide a case on a broad constitutional ground when it is not necessary to do so. The Times did not get anything resembling a fair trial in Alabama. When a case is fairly tried, the “chilling” effect, if any, comes from the expenses of the trial rather than from the substantive libel laws.

Libel laws are designed to discourage false statements of fact and to compensate the victims of such falsehoods. Such laws do not affect the expression of the broadest possible range of opinions.

I started my adult working life as a newspaperman before I went into law and I believe strongly that the media need and deserve very broad rights to criticize, whether such rights are grounded on either or both of the bases Professor Dworkin discusses. But if the Times or a network or I falsely accuse an official of taking bribes, it is inexplicable why they or I should not be responsible for the resulting harm, especially when the falsehood seriously damages or destroys a person’s career. I know of no empirical date—and Prof. Dworkin refers to none—that indicate the need for such an exemption to preserve First Amendment freedoms.

  1. Professor Dworkin complains rather plaintively that civil liability is usually based on fault and that liability for libel is not. Surely he knows better. Large areas of civil liability, such as liability based on statute (including statutes dealing with defamation) and product liability are not based on fault. Making a false and defamatory statement is at least as much of a “fault” as not performing an agreement or writing a bad check, whether inadvertently or otherwise. Moreover, is the making of a false accusation of misconduct really faultless behavior? How would that square with Prof. Dworkin’s ably expressed idea that we are responsible moral agents?

  2. Professor Dworkin refers to what he calls, without irony, “sensible proposals” that would severely limit libel suits and efforts to recover “huge jury awards,” proposals that go vastly beyond Sullivan. During the last decade we have heard similar proposals from a growing number of special interests—insurance companies, doctors, manufacturers. In fact, most libel cases, like most accident cases, do not result in huge verdicts. Detailed studies have shown that most persons injured in car accidents do not even recover their out-of-pocket losses; as far as I know this is also true in libel cases. However that may be, we should recognize Prof. Dworkin’s comments in this regard as one more instance of special pleading for a special interest.

I am not enthusiastic about the way we handle law suits in our society. But one of the values we surely need to cherish in a free society is the right of an individual to seek redress for harm caused by the unlawful acts of others. I am astonished to find Prof. Dworkin on the side of those who would limit those rights in favor of the interests of institutions—often large institutions. As individuals we are indeed responsible—morally and legally—for our acts. It is crucial that this be equally true of organizations, including the news media.

Judge George Brunn, Ret.
Berkeley, California

Ronald Dworkin replies:

I agree with Judge Brunn’s suggestion, in his interesting letter, that courts should avoid deciding unnecessary constitutional issues. But the Alabama libel law would have allowed an Alabama jury to reaffirm huge damages against The New York Times in a new trial in which the purely procedural errors had been corrected, and the Supreme Court could not long have avoided deciding whether that law was constitutional. Some Times executives had wanted to appeal only on narrow grounds, it is true, but they were persuaded by Professor Weschler, their lawyer, that a broad constitutional attack was necessary. Weschler, indeed, pressed for a more radical rule than the one the Court actually adopted.

Brunn does not disagree that “fault” is the normal basis of civil liability in tort, but he rightly notices that product liability statutes often make a manufacturer liable for defects in their products even when a person injured by those products cannot prove any carelessness in their manufacture. The goal of such statutes is to induce manufacturers to err on the side of caution in making their products safe. But it is the point of the First Amendment that speech should not be treated as a normal product. For the various reasons I discussed, the Constitution insists that people should not be forced to err on the side of caution in what they say. Nor am I pleading for a “special interest” in defending that constitutional principle: the principle is essential to everyone’s independent moral standing.

Mr. Brooks fails to distinguish between the Court changing its own past declarations of constitutional law, as I said it did in the Times case, and changing the Constitution itself. That distinction is essential, because sometimes it is necessary to change the former in order to protect the latter. The great clauses of the Bill of Rights, including the First Amendment which commands that government not abridge freedom of speech or the press, must be interpreted before they can be applied. Sometimes the Court comes to think that its own past interpretations were too limited, that they took too mean a view of the rights the Constitution, properly understood, actually grants to citizens. It took that view in Brown v. Board of Education, for example, when it changed settled doctrine to declare school segregation unconstitutional, and also in Sullivan.

Brooks apparently thinks that once the Court has interpreted the abstract clauses in one way, it should never change its mind, but instead wait for the people to repeal past interpretations through the clumsy amendment process. He thinks, presumably, that the Brown decision was unjustified. That is an extraordinary suggestion: it is the Court’s responsibility to interpret and protect the Constitution, and I can think of no argument that the consent of three quarters of the states should be necessary before it can correct what it now believes to be a mistake. I wonder if Brooks, who is the managing editor of the rightwing Critical Review, would take the same view about past decisions he dislikes. Does he think that the Court, now dominated by Reagan and Bush appointees, should leave Roe v. Wade in place just because every attempt to reverse it by amending the Constitution has failed?

As several readers pointed out, my description of Brandeis’s famous opinion in the Whitney case as a dissent was mistaken. Though the opinion was in spirit a dissent, it was technically a concurring opinion, because though Brandeis violently disagreed with the majority’s statement of First Amendment principles, he believed Anita Whitney’s conviction should nevertheless be upheld on procedural grounds.

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